United States v. Harvey Wing

ESCHBACH, Circuit Judge,

dissenting.

The majority rejects Wing’s Griffin claim by holding there was no plain error. Although not “definitively resolving the issue,” it also goes to great length to express its “doubt” as to whether there was constitutional error at all. This dicta is unnecessary, and the doubt unwarranted.

This circuit recognizes the principle that “[djirect comment on a defendant’s failure to testify is forbidden by the Fifth Amendment.” United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.1996); see also United States v. Goodapple, 958 F.2d 1402, 1405 (7th Cir.1992) (“A direct comment on the defendant’s failure to testify is clearly a fifth amendment violation.”). True, this principle is not without exception, and the court cannot find a constitutional violation without examining the facts of the case. United States v. Robinson, 485 U.S. 25, 32-33 , 108 S.Ct. 864, 869 , 99 L.Ed.2d 23 (1988). But the fact that this principle is not an absolute does not warrant the majority’s apparent disregard for it.

The majority recognizes that the cases establishing exceptions to this principle, Robinson, 485 U.S. 25 , 108 S.Ct. 864 , and Lakeside v. Oregon, 435 U.S. 333 , 98 S.Ct. 1091 , 55 L.Ed.2d 319 (1978), are “factually distinguishable.” In fact, they are inapposite and do not support the majority’s dicta to the effect that there was no constitutional error in the instant case. Both cases involved facts that mitigated the risk that the jury would infer guilt based on the challenged comment. In Lakeside , the reference to defendant’s silence was collateral to a contemporaneous instruction that the jury should not infer guilt from that silence. 435 U.S. at 333-34 , 98 S.Ct. at 1092 . This difference is particularly significant here, where the court gave no curative instruction after its comment. In Robinson , the prosecutor’s comments came as a direct response to defense counsel’s *993 attempt to convert Fifth Amendment protection “into a sword” by arguing that the government prevented the defendant from testifying. 485 U.S. at 32 , 108 S.Ct. at 869 . In the instant case, there are no similar facts that make it unlikely the jury would draw an adverse inference from the court’s comment.

The majority’s “doubt” that there is a Fifth Amendment violation focuses on whether the court’s comment invited the jury to infer guilt. I believe it did. The court did not invite this inference explicitly, nor, I think, intentionally. Nonetheless, the comment made it more likely the jury would infer guilt from defendant’s silence.

The Supreme Court recognized in Griffin that it may be only natural for a jury to infer guilt from a defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 614 , 85 S.Ct. 1229, 1232-33 , 14 L.Ed.2d 106 (1965). However, “[wjhat the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Id. at 614, 85 S.Ct. at 1233 . Although the judge in this case did not specifically direct the jury to infer guilt from defendant’s silence, when the court calls the jury’s attention to defendant’s silence as it did here, it “solemnizes” it in much the same way. Judicial comments on a defendant’s refusal to testify are especially dangerous. The court is in a particular position of authority in the courtroom. It is supposed to be objective. Most importantly, the court has a duty to protect the defendant’s rights. It is the court’s job to take care that the jury does not infer guilt from defendant’s silence. This ensures that defendants do not feel compelled to testify out of fear of such an inference. Id. at 614, 85 S.Ct. at 1233 . Yet when the court angrily remarks to defendant “If you wanted to testify you could have taken the stand,” the court not only highlights defendant’s silence, but risks the jury interpreting it as expressing disapproval of defendant’s failure to testify. This is surely the sort of adverse comment with which the court should be concerned. The comment implicitly encouraged the jurors to ask themselves why the defendant didn’t take the stand. The problem is that the first answer likely to come to mind is that the defendant refused to testify because he is guilty. See Lakeside, 435 U.S. at 340 n. 10, 98 S.Ct. at 1095 n. 10. The majority recognizes that the court’s comment was improper, supra at 989, but fails to recognize the reason why. It was improper because it risked prejudicing the defendant by making it more likely the jury would infer guilt from defendant’s silence. Thus, the court’s comment violated Wing’s Fifth Amendment rights.

Whether there was actual prejudice such that the court’s comment constitutes plain error is a tougher question. Defendant must prove the constitutional violation was so prejudicial as to change the outcome of the case. United States v. Olano, 507 U.S. 725, 734 , 113 S.Ct. 1770, 1778 , 123 L.Ed.2d 508 (1993). This necessarily involves assessing the weight of the evidence to determine if it was so strong that the court’s comment made no difference. The risk of prejudice in this ease is substantial. The court’s comment not only focused the jury’s attention on defendant’s failure to testify, but did so in a context in which the court was critical of defendant. Moreover, the court did not correct its error with an immediate curative instruction to the jury directing it not to infer guilt from defendant’s refusal to testify. 1 Finally, the court’s comment cam'e during closing arguments and thus was particularly likely to be in the jurors’ minds while deliberating. The government presented a strong case, but not strong enough to convince me that the court’s comment did not affect the outcome of Wing’s trial. I respectfully dissent.