Prosecutor’s “Lost in Space” Statement Leads to Loss on Appeal in Manslaughter Case

June 30, 2016

Netflix has given a 10-episode straight-to-series order to Lost in Space, a remake of sci-fi master Irwin Allen’s 1965 cult TV classic, from Legendary TV.

I remember watching watching “Lost in Space” in syndication as a kid. Apparently, the same was the case for a prosecutor in Connecticut, and it’s part of the reason why a defendant was given a new trial.

In Santiago v. State, 807 A.2d 1048 (Conn.App. 2004), Daniel Santiago was convicted of manslaughter in the first degree with a firearm and assault in the first degree based on the shooting death of Barrett Applewhite in 1997.* Santiago’s nickname is “Danger,” and, in reversing Santiago’s conviction, the Appellate Court of Connecticut chastised the prosecutor for belligerently cross-examining Santiago and making excessive use of the nickname “Danger” during his closing argument.

According to the court,

The prosecutor’s misconduct was not confined to his cross-examination of the defendant, but rather it continued during final argument. During his final argument, the prosecutor repeatedly used the defendant’s nickname, “Danger,” when referring to the defendant. By our count, the prosecutor referred to the defendant as “Danger” at least eighteen times in closing argument and four times in rebuttal argument. By his repeated use of the nickname, “Danger,” the prosecutor blatantly undertook to appeal to the jury’s emotions, passions and prejudices….

Here, the prosecutor’s drumbeat repetition of “Danger” clearly went beyond the limits of legitimate argument. It is obvious to us that the prosecutor’s purpose in referring to the defendant as “Danger” was to portray him as a dangerous and violent person. Such ill-disguised insinuation is unacceptable and designed solely to appeal to the jury’s emotions, passions and prejudices.

As support for this conclusion, the court cited to one of these instances,

During closing argument, the prosecutor stated in relevant part: “It was the day before Thanksgiving…. Some people, Michael Ibscher, Barrett Applewhite, were getting ready. They were in a holiday mood…. But real danger lurked around the corner in the name of [the defendant]. That’s who it is. That’s Danger.

“At that point, Michael Ibscher looks to his left and in front of him, and he sees Danger…. Danger crosses the street in front of the vehicles and there’s testimony…that he approaches the vehicle….Mr. Applewhite sees that, Mr. Ibscher hears at one point the defendant, Mr. Danger, saying, ‘What, what?’ as he’s backing up….

“Now, the defendant, as he’s walking, has this attitude. He wasn’t scared. You know why he wasn’t scared? Because he had this gun in his hand in his pocket. He wasn’t afraid. He knew what he was going to do….The ‘What, what?’ Mr. Ibscher and other people testified [about] that’s sort of like a beware, kind of heads up….I recall when I was a kid, there was a movie, ‘Lost in Space.’…And the robot would always say, when there was trouble, ‘Danger, danger, Will Robinson.’ There was danger. There was trouble….He says he was scared. He was not scared. I submit to you, Danger wasn’t scared. Danger is his name, he had a gun, he was on a mission, and he was going to complete his mission. Danger admitted on testimony he knew guns killed….Danger was about to injure someone and kill….

The prosecutor was referring to B-9, the robot from “Lost in Space”

and he ostensibly made a mistake in referring to “Lost in Space” as movie, unless he was referring to the 1998 film with Gary Oldman and William Hurt. Of course, this mistake was the least of the prosecutor’s problems.

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*“Lost in Space” was set in the then-distant future of 1997.

-CM