A Kentucky prosecutor who tried to illustrate the phrase “beyond a reasonable doubt” erred when asking prospective jurors to consider if it was “reasonable” to believe the prosecutor could beat both Tiger Woods and Rory McIlroy at golf.
There was a time when Woods was invincible on the golf course and “reasonable doubt” would be more than sufficient to describe an ordinary golfer’s chances of beating the 15-time major champion. But the Court of Appeals of Kentucky held last Friday that the golf analogy violated the legal prohibition against defining reasonable doubt. However, the error was found to have not impacted the judicial proceeding in such a way as to warrant a reversal in the drug-possession case.
In 2019, Maurice Gasaway was convicted of possession of heroin and marijuana in Hardin County. He was sentenced to three years and thirty days in prison. Gasaway appealed on several grounds, including the reasonable doubt definition.
Gasaway hadn’t raised the golf objection during his trial, meaning it wasn’t “preserved” for an appeal. Appellate courts often deem as waived objections that could have been raised during the trial. When appellate review of unpreserved objections is allowed in Kentucky, relief is to be granted only if a “manifest injustice resulted.”
During jury selection for Gasaway’s trial, one prosecutor noted that beyond a reasonable doubt “is the highest standard in the legal community” and then clarified, “I didn’t say beyond any doubt.” After stressing that both sides’ attorneys are barred from attempting to define this distinction between “any doubt” and “reasonable doubt”, the prosecutor then introduced a so-called “example.” The prosecutor, who mentioned playing golf from time-to-time and asked prospective jurors if they had heard of Woods and McIlroy, made the following remarks:
But, who in here believes if I was to go out and play golf with [Rory] and Tiger, that it’s possible, possible that I could beat them in nine holes? Does everyone agree it’s possible? Anything’s possible. Both their arms could fall off. Okay. It’s possible. Maybe extreme, but it’s possible. Anything could happen, okay.
Is it reasonable to believe that I would beat both of them? No. No, it’s not reasonable. Um, it’s not. If you play golf, you know it’s not reasonable.
Does everybody understand the difference between possible and reasonable though? Okay. Now, does everybody agree to hold this man responsible for his actions if I meet my burden of proof beyond a reasonable doubt?
Writing for the Court of Appeals, Judge Jeff Taylor stressed that while prosecutors are allowed to define what reasonable doubt is not, they can run afoul of the law by adding hypotheticals. “The Commonwealth [of Kentucky]”, Judge Taylor reasoned, “provided a lengthy hypothetical that juxtaposed what is reasonable versus what is possible . . . [and thus] violated the prohibition against defining reasonable doubt.” At the same, the judge found the prosecutor’s “unpreserved error” did not “seriously affect the fairness” of the proceeding, which showed “overwhelming evidence” to support the conviction.
This isn’t the first time the improbability of a prosecutor beating Woods has surfaced during trial proceedings. In 2015, the Court of Appeals of Kansas considered in State v. Peters whether prospective jurors should have heard a prosecutor tell them the following:
I could go out today, and I could play Tiger Woods in golf. And, you know, it’s, you know you could have a doubt, you know, that Tiger Woods is going to beat me in 18 holes of golf today, but is that a reasonable doubt?
Is that reasonable doubt to think that, like, Tiger Woods or Phil Mickelson or any of these guys, is that reasonable to think that they’re going to lose to me? You know, I’m, just some weekend hack out on the golf course. Is that reasonable to think they’re going to lose to me? No, that’s not a reasonable—that’s not reasonable to think that.
While the Kansas court stressed “the golf analogy’s use in the future is strongly discouraged,” it nonetheless concluded the “Tiger Woods golf analogy did not cause a fundamental failure in Peters’ trial.” This was because the prosecutor and judge had “repeatedly stated the correct reasonable doubt standard for the jury to use during deliberations for the remainder of the trial.”
Perhaps the best play for prosecutors is to leave their golf analogies “in the bag.”