Even if United States v. Weiss were only an isolated instance of justice miscarried as a result of prosecutorial appeal to racial or ethnic bias, it would behoove this Court to grant a writ of certiorari to ensure Weiss' constitutional right to a fair trial. Sadly, though, this is by no means all that exceptional a case. What happened here happens shockingly often in federal and state courts across the United States -- making it all the more imperative that this Court grant Weiss' petition.

Consider the following sampling of relatively recent reported cases of improper prosecutorial appeals to racial prejudice (see generally B. Gershman, Prosecutorial Misconduct, Sec. 10.2(d) (1985)):

-- United States v. Doe, 903 F.2d 16, 24 (D.C. Cir. 1990): "[W]hat is happening in Washington, D.C. is that Jamaicans are coming in, they're taking over the retail sale of crack... people just like this just like this."

-- United States v. Hernandez, supra, 865 F.2d at 927: "Each of you by the verdict that is represented by the evidence will send a clear message to Cuban drug dealers..."

-- McFarland v. Smith, supra, 611 F.2d at 416: "[T]he fact is that Officer Dorman is black and the Defendant is black... If [Officer Dorman] is lying she is lying against a member, a person that is black... a member of her own race. You use your common sense about that."

-- Withers v. United States, 602 F.2d 124, 125 (6th Cir. 1979): "Not one white witness has been produced in this case that contradicts [the victim's] position in this case."

-- Miller v. North Carolina, 583 F.2d 701, 704 & at n.3 (4th Cir. 1978): "She told you that each of these black men had intercourse with her and that they passed the knife from one to another... Don't you know and I argue if [consent to intercourse] was the case she could not come in this courtroom and relate the story that she has from this stand to you good people, because I argue to you that the average white woman abhors anything of this type in nature that had to do with a black man. It is innate within us..."

-- Kellv v. Stone, 514 F.2d 18, 19 (9th Cir. 1975): "[M]aybe the next time it won't be a little black girl from the other side of the tracks; maybe it will be somebody that you know... And maybe next time he'll use the knife."

-- United States v. Sanchez, 482 F.2d 5, 8 (5th Cir. 1973) "[B]y golly, he should have enough machismo and chicannismo to take the stand and tell you the truth..."

-- United States v. Horne, 423 F.2d 630, 631 (9th Cir. 1970): "And another thing I am tired of: Is [defense counsel] trying to let these people hide behind their race?"

-- United State v. Grey, 422 F.2d 1043, 1045 (6th Cir.), cert. denied, 400 U.S. 967 (1970): The prosecutor asked a black defendant's character witness whether he knew that the defendant was "running around with a white go-go dancer."

-- Weddington v. State, 545 A.2d 607, 610 (Del. 1988): "Mr. Weddington, isn't it true that you got Blue and Henry to go up to Indiana with you because you told them there was some loose white women up there?"

-- State v. Belgarde, 755 P.2d 174, 175 (Wash. 1988): "I remember Wounded Knee, South Dakota. Do any of you? It is one of the most chilling events of the last decade. You might talk that over when you get in there. That was the American Indian Movement. That was a faction of the American Indians that were militant, that were butchers, that killed indiscriminately Whites and their own."

-- People v. Thomas, 129 A.D.2d 596, 597 (N.Y. Sup. Ct. App. Div. 2d Dept. 1987): "I would submit to you that if three white males jumped out of a green Plymouth Volarie in this neighborhood and ran up to you you might, you just might tend to think these are not muggers, these could be police officers."

-- People v. Walker, 66 A.D.2d 863, 864-65 (N.Y. Sup. Ct. App. Div. 2d Dept. 1978): "Teddy is trying to save face. He broke the code of the Negro community, two women in one town. That's a no-no... You want to talk, but the big man comes in, a big man who's above the code of the community. These rules don't apply to me. They apply to the niggers."

-- Commonwealth v. Graziano, 331 N.E.2d 808, 813 (Mass. 1975): "We've even got the godfather in this case. The godfather, we've got the wedding, we've got every part of it."

Some of these cases resulted in a new trial. Others did not. In each of them, though, the appellate court found the prosecutor's rhetoric improper. If nothing else, the picture that clearly emerges is that although it has long been a matter of hornbook law that racially biased prosecutorial presentations are a violation of due process, such presentations continue at an alarming rate. What was true twelve years ago when the Second Circuit cautioned that "the evils of racial prejudice lurk too frequently throughout the administration of criminal justice, McFarland v. Smith, supra, 611 F.2d at 419, is certainly no less true today.

It is especially reprehensible when those evils are instigated by a government official. As this Court has observed:

Granting Weiss' petition for a writ of certiorari will afford this Court an opportunity to speak firmly on this sensitive issue, and to delineate clear guidelines for courts to determine the presence of prejudicial racial or ethnic bias in prosecutorial rhetoric. If courts can conclude, as the majority did here, that allusions to negative stereotypes can fall 'within the bounds of proper argument,' the need for such guidelines becomes painfully apparent.