(dissenting):
I respectfully dissent. Because of the grossly inflammatory and prejudicial evidence unlawfully injected by the prosecution near the end of a bitterly contested trial, the conviction should be reversed.
Although there is no “litmus-paper” test for determining whether a new trial should be granted when the prosecution interjects evidence that is inadmissible and prejudicial to the accused, the-courts have considered a number of factors. These include the inherent prejudice of the evidence presented, the forcefulness and timeliness of the trial court’s curative instructions, and the overall strength of the prosecution’s case. See United States v. Martinez, 514 F.2d 334 (9th Cir. 1975); United States v. Bashaw, 509 F.2d 1204 (9th Cir. 1975); Thurman v. United States, 316 F.2d 205 (9th Cir. 1963).
It is difficult for me to conceive of more inherently prejudicial evidence than a showing that an accused has placed a murder contract with the “Mafia.” The law is particularly protective of one accused of murder and underworld taint. See United States v. Love, 534 F.2d 87 (6th Cir. 1976) (conviction reversed because the defendant was asked if he was part of another organization of “ill character like the Mafia or anything like that”); United States v. Gray, 468 F.2d 257 (3d Cir. 1971) (en banc) (conviction reversed under “plain error” doctrine because the prosecution asked the accused if he had killed his wife, an offense for which he was not on trial); United States v. Rudolph, 403 F.2d 805 (6th Cir. 1968) (conviction reversed because the defendant was asked if he had solicited murder of a prosecution witness).
Rather than curing the prejudice to the defendants, the actions of the trial court may well have aggravated the unfairness of the trial in the present ease. The court did not immediately excuse the jury so as to assess the impact of the prosecutor’s question. Instead, the judge asked the prosecutor to avow in the presence of the jury that he, the prosecutor, would present evidence confirming that Warren placed the alleged murder contract. Defense counsel then vainly attempted to have the jury removed, but the prosecutor immediately responded with an avowal that he would present the severely prejudicial evidence.
After thus allowing the reputation of the Justice Department to be indelibly and irretrievably placed behind the sordid accusations, the trial court dismissed the jury with the request that it not give the testimony any weight “until it may be repeated.” After discussing the matter with the attorneys, the jury was returned and instructed to disregard the evidence “unless for some reason or other it should come in at a later date.” Finally, after a delay of a day and a half, the trial court ruled the testimony inadmissible and instructed the jury, immediately before argument, to disregard the question.
This was by no means a case in which the evidence of guilt was overwhelming. The jury deliberated for two and one half days, and relatively insignificant matters may have been sufficient to alter the outcome. Considering the highly inflammatory nature and impact of the improper question, the tardiness and timidity of the curative instructions, and the length of the jury’s deliberations, I deplore the failure of my Brothers to conclude that reversal is required.