The New Jersey Supreme Court overturned the conviction of a bank robber on Tuesday because the prosecutor used a photo of actor Jack Nicholson’s “Here’s Johnny” moment in the 1980 movie The Shining during closing arguments (article available here).
The prosecutor had used the photo in the trial of Damon Williams to make the point that a seemingly polite note to the teller could be considered threatening in the right context. The issue was whether Williams committed a higher offense of second-degree robbery, which requires the use of force or the threat of force, or the less serious offense of third-degree theft.
The prosecutor used a still shot of Nicholson’s face peering through the opening during her closing in a PowerPoint slide. The photo was captioned “ACTIONS SPEAK LOUDER THAN WORDS.”
Williams' attorney objected to the use of the photo, but the trial judge allowed it.
The New Jersey Supreme Court held that the PowerPoint slide and the prosecutor’s comments amounted to prejudicial error.
“Prosecutors must walk a fine line when making comparisons, whether implicit or explicit, between a defendant and an individual whom the jury associates with violence or guilt,” the state supreme court said. “The use of a sensational and provocative image in service of such a comparison, even when purportedly metaphorical, heightens the risk of an improper prejudicial effect on the jury. Such a risk was borne out here.”