It is well established that a criminal defendant is entitled to a presumption of innocence. Given this, a prosecutor of course cannot claim during closing argument that the defendant is no longer entitled to the presumption of innocence. And yet, that’s exactly what the prosecutor did in Holton v. State, 2026 WL 3328863 (2026), with an appellate court in Florida somehow holding that it was not reversible error.
In Holton, Robert Holton was convicted of first-degree murder and first-degree arson. During closing argument, without objection, the prosecutor told the jurors:
No one, other than the defendant, had a turbulent relationship with Kayla Gloster. No one else. Remember, Judge Tinkler Mendez said we have to prove that a crime was committed and who did it. You sat through this trial, and there should be no doubt in your mind that a crime occurred, the savage and brutal murder of Kayla Gloster. We are halfway there. The defendant is no longer presumed innocent. You’ve heard the testimonial, physical, and circumstantial evidence, and it tells you that he is the killer.
After he was convicted, Holton appealed, claiming, inter alia, that “the State’s comments concerning his presumption of innocence were improper because the State did not link them to any specific evidence, but rather, just told the jurors not to afford him the presumption given it had presented evidence establishing he was the killer.”
The court disagreed, starting with two words: “Not so.”
The court then added that
Read in context, the surrounding comments link the remark to “testimonial, physical, and circumstantial evidence” the jury had heard. Accordingly, the State’s comments do not constitute error because the comments were directly tied to the State’s perspective on the strength of the evidence. See Dessaure v. State, 55 So. 3d 478, 487 (Fla. 2010) (finding no error where State commented it “chipped and chipped away at that cloak [and] [defendant] no longer enjoys that presumption” because comments were tied to the State’s perspective on the strength of the evidence); see also Dailey v. State, 965 So. 2d 38, 44 (Fla. 2007) (“Regarding the prosecutor’s statements concerning [defendant’s] presumption of innocence, … when read in context, the comments appear to be a statement by the prosecutor of her belief that the State satisfied its burden of proof.”).
As this makes clear, this wasn’t a one off, but instead something Florida courts have held for decades.
I find this disturbing and out of line with what other courts across the country have ruled. To give one example, in Morales v. State, 143 P.3d 463 (Nev. 2006), the Supreme Court of Nevada reversed a conviction in which similar language was used, noting that “A prosecutor may suggest that the presumption of innocence has been overcome; however, a prosecutor may never properly suggest that the presumption no longer applies to the defendant.”
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