holding that “[t]he prejudice resulting from a direct reference by a prosecutor to the exercise of [the constitutional right of a defendant to choose not to testify], coupled with an attempt to use the failure to testify to limit the jurors’ personal deliberative process cannot be completely cured by a court instruction.”
How later courts described this case
- holding that “[t]he prejudice resulting from a direct reference by a prosecutor to the exercise of [the constitutional right of a defendant to choose not to testify], coupled with an attempt to use the failure to testify to limit the jurors’ personal deliberative process cannot be completely cured by a court instruction.”
- holding that prosecutor comments on a defendant’s silence are only prohibited if the intent to comment on the silence was “manifest” or if the jury would “naturally and necessarily construe [the prosecutor’s remark] as a comment on the defendant’s silence”
- finding that district court’s curative instruction did not mitigáte prejudice when it was given more than a day after the impermissible comment and when the district court gave no instructions prior to closing arguments
- finding that district court’s curative instruction did not mitigate prejudice when it was given more than a day after the impermissible comment and when the district court gave no instructions prior to closing arguments
Written by the judges who cited it.
The opinion
KING, Circuit Judge,
concurring in part and dissenting in part:
I respectfully dissent from the judgment of the panel reversing the conviction of Larry Hill on Count 1 of the indictment. Judge Duplantier’s opinion does a careful job of outlining the substantial evidence against Hill. In my view, the prosecutorial misconduct that occurred here does not cast serious doubt on the correctness of the jury’s verdict. I would affirm his conviction. In all other *405 respects, I concur in the panel’s judgment and in Judge Duplantier’s superb opinion,