## Facts

- Amuir Sekou Clausell was tried in Yellowstone County, Montana, and convicted of deliberate homicide.
- After the conviction and direct-appeal proceedings concluded, Clausell filed a petition for postconviction relief in the district court.
- Clausell’s postconviction petition focused on statements the prosecutor made during jury selection and closing argument, using a recurring “hide the ball” analogy.
- During voir dire, the prosecutor discussed jurors using common sense in everyday decision-making (such as crossing a street), then told prospective jurors that books and movies “hide the ball” until the last minute, and asked jurors to agree they could use common sense in deciding the case.
- During closing argument, the prosecutor returned to the theme and said the jury had heard “a masterful job” by defense counsel “attempting to hide the ball,” followed by a reminder that jurors had agreed they could use common sense consistent with the judge’s instructions.
- The prosecutor also used an analogy about a child’s friend telling lies to illustrate how a factfinder can compare changing or inconsistent accounts against other evidence when deciding credibility.
- Clausell argued these remarks implied that his attorney, and Clausell himself, were lying and that the prosecutor was improperly attacking the defense rather than commenting on evidence.
- The State responded that Clausell was taking the remarks out of context and that the prosecutor was using rhetorical examples to argue how jurors could evaluate inconsistent statements and reach the truth from the evidence.
- The district court denied postconviction relief, and Clausell appealed to the Montana Supreme Court.

## Issues

1. Whether the prosecutor’s “hide the ball” comments in voir dire and closing argument, and the “child lies” analogy used to discuss credibility, constituted prosecutorial misconduct that denied Clausell a fair trial and justified postconviction relief.
2. Whether Clausell established ineffective assistance of trial counsel under *Strickland v. Washington* based on counsel’s handling of (and responses to) the prosecutor’s remarks, including any failure to object, and whether Clausell proved resulting prejudice.

## Decision

- The Montana Supreme Court affirmed the district court’s denial of Clausell’s petition for postconviction relief.
- The Court concluded that, considered in context, the prosecutor’s remarks were not unfairly prejudicial prosecutorial misconduct requiring relief.
- The Court also concluded Clausell did not satisfy *Strickland* because he failed to show both deficient performance and a reasonable probability of a different outcome.

## Legal Principles

- In postconviction proceedings, the petitioner bears the burden to support claims with more than conclusory allegations.
- Alleged prosecutorial misconduct is evaluated by considering the challenged remarks in the setting of the entire trial, including the arguments as a whole, the evidence presented, and the court’s instructions.
- A prosecutor may use rhetorical devices and analogies during voir dire and closing argument to discuss credibility and reasonable inferences from the evidence, so long as the argument does not rely on facts outside the record, does not amount to improper vouching, and does not so infect the trial with unfairness as to deny due process.
- Under *Strickland v. Washington*, ineffective assistance requires proof of (1) deficient performance measured against an objective standard of reasonableness and (2) prejudice, meaning a reasonable probability that the result would have been different absent counsel’s errors.
- Decisions about whether and when to object during argument are generally treated as matters of trial judgment, and the *Strickland* standard requires deference to reasonable professional choices.

## Conclusion

The Montana Supreme Court held that the prosecutor’s “hide the ball” theme and the credibility analogy, read in the full context of voir dire, closing argument, the evidence, and the jury instructions, did not amount to misconduct requiring postconviction relief; Clausell also failed to prove ineffective assistance under *Strickland* because he did not establish unreasonable lawyering or a reasonable probability that different objections or responses would have changed the verdict.


Clausell v. Montana, 106 P.3d 1175 (2005)