“The prosecutor’s opening statement was flagrantly, glaring, and tremendously improper.” Those are the words the Colorado Court of Appeals used to describe the racially charged language a District Attorney (D.A., prosecution) used to convict Marcus Lee Robinson of attempted sexual assault and unlawful sexual conduct. Flagrant, glaring, and tremendously improper.
It’s hard to believe that even now, in 2019, that racial biases still taint our criminal justice system and hinder parties from having a trial based on the merits of the case, but cases such as this one, remind us every day that potentially innocent black men find themselves baring the weight of a four years to life imprisonment sentence due to bigotry. Alternatively, well-meaning victims of sexual assault, who have found the courage to speak out are forced to sit through a meaningless charade purported to be a truth-seeking process.
Marcus Robinson went over to his girlfriend’s apartment one night and found the remnants of a party that was hosted by Marcus’ girlfriend and her roommate, A.M. Somewhere around 4:00 a.m., the event was winding down. A friend of A.M., E.G., had too much to drink and admitted that the combination of alcohol and prescription medication she’d taken caused her to become ill. A.M. also felt that she had too much to drink, and both women passed out on the living room couch.
Colorado’s Highest Court
While sleeping on the couch, E.G. woke up in the middle of the night. She testified that she saw Marcus straddling her with his penis in her face. After telling Marcus to go away, E.G. went back to sleep. E.G. then testified that she woke up a second time and saw Marcus rubbing A.M.’s thighs and breast while A.M. was asleep. After telling Marcus to go away again, E.G. returned to sleep. Finally, E.G. woke up a third time and allegedly found Marcus vaginally penetrating A.M. It’s the third incident that caused E.G. to tell Marcus to leave. Once Marcus left, E.G. called 911 to report Marcus’s acts of sexual assault, including vaginally penetrating A.M.
During trial the S.A.N.E., or sex assault nurse examiner, testified that A.M. did not have any external or internal injuries to her genitalia. Additionally, a DNA expert testified that the amount of male DNA found on A.M.’s genitalia was negligible and unable to match to anyone, including Marcus.
At the conclusion of the trial, the jury couldn’t find enough evidence to convict Marcus of a single crime against E.G., the reporting party who allegedly witnessed all of the night’s illicit acts. However, Marcus was found guilty by the same jury of two counts of unlawful sexual contact and two counts of attempted sexual assault of A.M. In accordance with the Sex Offender Lifetime Supervision Act, Marcus was sentenced to four years to life in prison.
People v. Robinson
What was it that was so different, so jarring, about the presentation of evidence surrounding the victim, E.G., that changed the tune of a jury of 12 and has caused so much controversy that on June 11, 2018, the Colorado Supreme Court took Marcus’ case under review?
During trial, Marcus sat right next to his attorney. He sat facing the jury who would ultimately decide the course of the rest of his life. At the beginning of trial, Marcus listened as the District Attorney (DA) presented his opening statements and crafted the slanted narrative of the trial. The DA began: “You’re going to hear that [one of the victims, A.M.] is white. And she’s actually pretty pasty. She’s pasty white. And obviously you have seen Mr. Robinson is dark.”
Although this racially based contrast between the victim and the defendant should have been alarming to Marcus’ attorney, his attorney did not object. The DA continued further down the rabbit hole. “He is an African American of dark complexion. [The other victim, E.G.,] looks over and she can see a dark penis going into a white body. That’s how graphic she could see.”
Not only, does the defense fail to object, but the judge, who has the sole authority to control the court, does not step in to admonish the DA, nor advise the jury to disregard the tasteless, irrelevant, racist, and at best, tone-deaf statements of the DA.
The Sixth Amendment guarantees the right to a fair and impartial trial to each defendant. In order to have that fair and impartial trial, the jury must be comprised of impartial peers who can separate bias and prejudice when determining the guilt or innocence of a defendant. Each officer of the court, whether it’s counsel for the defendant or the prosecutor, is charged with keeping biases out of criminal proceedings.
A prosecutor, specifically, "has the responsibility of a minister of justice and not simply that of an advocate.” The prosecution’s goal should be to oust the truth rather than seek convictions. When it’s the prosecutor’s statement during trial that suggest any kind of bias or prejudice, prosecutorial misconduct is always in question.
In Marcus’ trial, the prosecutor’s statements were so dangerously triggering that they could not be overlooked or discredited. The Court of Appeals stated that “the prosecutor’s words invoked some of the most damaging historical racial stereotypes – stereotypes that have infected judicial proceedings in this country for generations.”
Sometimes the weapon at the center of a criminal trial is a knife. Sometimes it’s a gun. Other times the weapon of choice is race, and the person wielding that weapon is the prosecutor. This isn’t to say that race is never a factor in criminal trials. There are times when race is appropriately used in trial like any other characteristic. Race can be used for the purposes of identification or to show motive or bias of witness. “An unembellished reference to evidence of race simply as a factor bolstering an eyewitness identification of a culprit, for example, poses no threat to purity of trial.” The issue begins when evidence of race is used as an emotional appeal – whether that appeal be sympathy, hatred, or bigotry.
In Marcus’ case, the Court of Appeals walked through, not only the DA’s improper conduct in opening statements, but also his direct examination of E.G. during the presentation of evidence, which lacked the connection necessary to alleviate race’s place in this trial other than to appeal to bigotry. The specific portion of E.G.’ direct examination that was particularly alarming began as follows:
PROSECUTOR: How could you see that [A.M. was naked from the waist down]?
E.G.: Because it was a dark room and [A.M.]—I hate to say it, but she's really, really white. So I could see that she was naked from the waist down.
Q: What was going on at that point?
A: He was inside of her. He was having sex with her.
Q: How do you know he was inside of her?
A: Because I could see it. I could see it from my angle. He was in the process of having sex with her. And then he realized that I woke up. And he looks over to me as he's penetrating her[.]
Q: You said he was penetrating her. How was Mr. Robinson dressed at this point?
A: Um, at this point by the third incident he was actually—he was naked from the waist down. That I do remember. I can't remember if he was wearing a shirt or not. But he was naked from the waist down because he had to run and get pants.
Q: What race is Mr. Robinson?
A: He's African American.
Q: And how would you describe his complexion?
A: It's dark.
Q: Could you see his penis?
A: Like if I had to draw a picture of it, no. But the fact that I saw him from the waist down and he was naked from the waist down and when he took off, I could see his butt clearly.
Q: And is he dark complected [sic] at that location on his body as well?
No basis for the line of questioning
The DA’s line of questioning concludes without establishing the purpose for addressing Marcus’ race. The alleged victim’s complexion is relevant as it shows how the reporting party was able to see that she was undressed. However, there is nothing in this line of questioning, or throughout the remaining evidence presented at trial that makes Marcus’ race or complexion relevant. The prosecution doesn’t even attempt to argue that the point of mentioning or highlighting that Marcus was black was for the purpose of identification.
The women involved in the case did not introduce the fact that Marcus was black nor did the need to identify him as such because they knew Marcus. They were familiar with his characteristics and features beyond just his race. Marcus frequented they apartment. He was in a relationship with A.M.’s roommate. Marcus even admitted to being at the party. Text messages were admitted during trial of Marcus telling his girlfriend that he was at the apartment on the night of the incident, but left because E.G. was yelling at him.
Race was not an issue
The question of this case was not “who;” therefore, identification was not an issue. Race was not at issue.
Ultimately the court held that the prosecutor’s “graphic description of a ‘dark penis going into a white body’ posed an unacceptable risk of poisoning the jury based on racial prejudice.” The court’s opinion shows that the bench has zero tolerance for allowing the justice system to support itself with a history so overcome with institutionalized racism. In its opinion denouncing the racially inspired presentation of “evidence,” the court points to a tragic history in this country where racism is so institutionalized that it was used as a method of criminalizing race itself.
The court was swift not to allow society to forget that this country is not far removed from racially charged jury instructions given in cases such as the one provided in the Scottsboro Boys Trials. In the history Alabama trials, a judge famously instructed a jury to disregard any evidence that a white woman could ever consent to sex with a black man. That Alabama Court instructed a presumably unbiased all-white jury that “when a black man is charged with raping a white woman, the law strongly presumes that the white woman would not possibly consent.”
Hopefully for Marcus the Supreme Court of Colorado will uphold the ruling of the Court of Appeals when it stated that regardless of the lack of objection made by his attorney, “the risk that Robinson did not receive a fair trial by unbiased jurors simply is too great to ignore. It is the responsibility of courts to purge racial prejudice from the administration of justice.”
If you are facing criminal charge, it’s important to remember that there’s more to prove than your guilt or innocence. Many times, the true battle is ensuring that you’re afforded a fair and impartial trial, free from scrutiny based on race, religion, ideological beliefs, or gender. It’s always best to contact an attorney to protect yourself from what could amount to criminal charges due to prosecutorial misconduct.
If you have a legal issue you need help with, the attorneys at Whitcomb, Selinsky Law PC would love to share their expertise with you. Please call (303) 543-1958.
 Harris v. People 888 P.2d 259, 264 (Colo. 1995); see U.S. Const. amend. VI; Colo Const. art. II § 16.
 Colo. RPC 3.8 cmt. 1.
 Harris, 888 P.3d at 265.
 United States v. Doe, 903 F.2d 16, 25 (D.C. Cir. 1990).
 N. Jeremi Duru, The Central Park Five, the Scottsboro Boys, and the Myth of the Bestial Black Man, 25 Cardozo L. Rev. 1315, 1338 (2004).