Opposition Brief — Yanai v. Girts (No. 07-1452)

No. 07-1452 JUL 2 3 sag |

(SF =:

IN THE ee

Supreme Court of the United States hs

CHRIS YANAI, Warden,

Petitioner,

v.

ROBERT GIRTS,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED StaTes Court oF APPEALS

FOR THE SIXTH CIRCUIT

er

i

BRIEF IN OPPOSITION

ee nH

er

ROBERT F. Warr

THOMPSON HINE LLP

3900 Key Center

127 Public Square

Cleveland, Ohio 44114-1291

(216) 566 5500

216) 566-5800 (facsimile)

Counsel for Respondent

COINSEL PRESS

(800) 274 3321 © (800) 359-6859

1

QUESTIONS PRESENTED

Whether it is reversible error for an appellate court

to utilize Fourteenth Amendment due process

analysis to determine whether, in a trial for

aggravated murder based on circumstantial

evidence, a prosecutor’s repeated suggestions to the

jury that the defendant’s decision not to testify

should be taken as proof of his guilt violated the

defendant’s Fifth Amendment rights.

. Whether the standard for evaluating a prosecutor’s

comment on a defendant’s pre-arrest, pre-Miranda

silence is worthy of consideration by this Court in a

case where a Fifth Amendment violation was found

based on multiple improper comments by the

prosecutor.

2)

LIST OF PARTIES

The Petitioner is Chris Yanai, the former Warden of

the Oakwood Correctional Facility and an official of the

Ohio Department of Rehabilitation and Correction.

The Respondent is Robert Girts, a prisoner in the

Ohio Department of Rehabilitation and Correction’s

custody.

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING THE PETITION ...

A. The Sixth Circuit’s Decision is Not in

Conflict With Any Other Circuit and Does

Not Warrant Review by This Court. ....

1. The Sixth Circuit Correctly Analyzed

Respondent’s Claims. .............

The Fourteenth Amendment and

Fifth Amendment Tests Are

Indistinguishable

The Application of the Morrison-

Knowles Test to the Facts in This

Case Would Not Change the Result.

Contents

Page

B. The Issue of Respondent’s Pre-Arrest

Silence is Not Central to the Outcome of

This Case and Should Not be Considered

OF ee Ro his ieee eee eek scans 14

1. This Case Does Not Present a Clear

Set of Facts for the Court’s

Resolution. .

The Sixth Circuit’s Decision Below

was Correct.

The AEDPA’s Presumption Does Not

Apply to the Facts of This Case. ....

CONCLUSION

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Barrientes v. Johnson, 221 F.3d 741 (5th Cir.

Baxter v. Palmigiano, 425 U.S. 308 (1976)

Butler v. Rose, 686 F.2d 1163 (6th Cir. 1982) ...

Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000) ...

Clinkscale v. Carter, 375 F.3d 430 (6th Cir.

2004)

Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) ....

Coppola v. Powell, 878 F.2d 1562 (1st Cir. 1989)

Durr v. Mitchell, 487 F.3d 423 (6th. Cir. 2007) .... 7

Girts v. Yanai, 501 F.3d 743 (6th Cir. 2008) .. passim

Griffin v. California, 380 U.S. 609 (1965)

Lockett v. Ohio, 438 U.S. 586 (1978)

Malinski v. New York, 324 U.S. 401 (1945)

Malloy v. Hogan, 378 U.S. 1 (1964)

vi

Cited Authorities

Medellin v. Dretke, 544 U.S. 660 (2005)

Rompilila v. Beard, 545 U.S. 374 (2005)

Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987) .. 15

Strickland v. Washington, 466 U.S. 668 (1984) .. 2

United States v. Burson, 952 F:2d 1196 (10th Cir.

United States v. Carroll, 26 F.3d 1380 (6th Cir.

passim

United States v. Carter, 236 F:3d 777 (6th Cir.

vil

Cited Authorities

Page

United States v. Davis, 63 Fed. Appx. 76

(4th Cir. 2003)

United States v. Hernandez, 476 F.3d 791

(9th Cir. 2007)

Wilson v. United States, 149 U.S. 60 (1898) ....

UNITED STATES CONSTITUTION

U.S. Const. AMEND. V passim

passim

STATE CASES

Ohio v. Leach, 807 N.E.2d 335 (Ohio 2004)

State v. Girts, 700 N.E.2d 395 (Ohio Ct. App.

FEDERAL STATUTES

28 U.S.C. § 2254(d)

OTHER AUTHORITIES

WEBSTER’S NEW UNIVERSAL UNABRIDGED

DICTIONARY (1992)

1

STATEMENT OF THE CASE

Respondent incorporates the Statement of Facts

from the decision below as if fully restated herein.

The State of Ohio has twice tried Respondent

Robert Girts for the aggravated murder of Diane Girts,

and twice its convictions have been overturned due to

the State’s prosecutorial misconduct. During

Respondent’s second trial, at which he chose not to

testify, the prosecutor’s closing argument repeatedly

emphasized to the jury Respondent’s decision not to

testify in his defense and suggested that his silence

should be taken as proof of his guilt. The prosecutor

first recounted testimony from three witnesses who

purported to describe statements made by Respondent

and emphasized that their testimony had been

“unrefuted” and .“uncontroverted:”

Again these are his words. And the words that

you heard from these folks supplied by him

are unrefuted, and they are uncontroverted.

There has been no evidence at all to say that

these people are incorrect. None at all.

App. 3a. The prosecutor followed that statement by

commenting on Respondent’s failure to volunteer

information to police investigators: “with respect to the

source [of the cyanide], the defendant had no less than

three occasions to tell the police that he had ordered

the cyanide.” App. 3a-4a. Finally, with no doubt

2

remaining as to the prosecutor’s intent to call attention

to Respondent’s decision not to testify, the prosecutor

stated:

Ladies and gentlemen, we don’t have to tell

you how it was introduced into her system.

We know that it was ingested. And there is

only one person that can tell you how it was

introduced, and that’s the defendant.

App. 4a (emphasis added). These repeated statements

were found flagrant and improper by both the United

States District Court for the Northern District of Ohio

and the United States Court of Appeals for the Sixth

Circuit,' and the Sixth Circuit granted Respondent’s

petition for a writ of habeas corpus.

The State, throughout its petition, characterizes the

prosecutor’s statements as “indirect” comments on

Respondent’s decision not to testify. But only the first

of the three comments could reasonably be described

as indirect—no inference is needed to understand the

meaning of the other two. Moreover, taken together, the

prosecutor’s comments on Respondent’s silence

' Respondent’s counsel failed to object to these statements

at trial. Although the United States District Court for the

Northern District of Ohio found the statements to be flagrant

and improper, it incorrectly deferred to the State appellate

court’s decision that Respondent could not sufficiently satisfy

the prejudice requirement under Strickland v. Washington, 466

U.S. 668 (1984), and thus procedurally defaulted his claims. App.

28a n. 1. In its petition for certiorari, the state of Ohio apparently

abandons its assertion that Respondent procedurally defaulted

his prosecutorial misconduct claims.

3

manifest a clear intention for the jury to take notice of

Respondent’s decision not to testify and consider such

behavior to be evidence of guilt. As the court below

emphasized, “(t]he multiple statements strongly

suggests that Petitioner’s silence was a central theme

in the prosecutor’s closing argument. The comments

came in relatively close sequence and were some of the

last statements heard by the jury before deliberations.”

App. 34a. Far from indirect, the prosecutor’s comments

were repeated, deliberate, and made in a case that was

based entirely on circumstantial evidence, thus denying

petitioner his constitutional right to a fair trial, as

recognized by both federal courts below.

There is no confusion in the lower courts and there

is no significant split of authority amongst the circuits

that would conceivably affect the outcome given the

glaring example of prosecutorial misconduct; rather, this

case involves a simple and straightforward application

of federal law, and the court below properly applied the

law and rendered the proper decision.

REASONS FOR DENYING THE PETITION

The Court should deny the petition because this

case, in addition to being properly decided by the court

below, does not present the Court with a genuine circuit

split or an issue of sufficient importance.

The State’s first argument seeks to put at issue the

use of two slightly different tests to evaluate claims of

prosecutorial misconduct based on the prosecutor’s

comments to the jury regarding a defendant’s decision

not to testify. The State’s petition fails for three

4

separate and important reasons: (1) there is no

substantive circuit split in applying the standards,

(2) there are no tangible differences between the two

tests, and (3) if any differences did exist between the

two tests, the application of either test would result in a

finding of prosecutorial misconduct and reversal of

Respondent’s conviction.

The second argument advanced by the State is that

it should be entitled to use Respondent’s pre-arrest,

pre-Miranda statements as substantive evidence of

guilt. This contention, if adopted, would turn

Respondent’s Fifth Amendment silence privilege on its

head and force Respondent to choose between silence

and comment, while knowing that either response will

be used by the State as substantive evidence of guilt.

Moreover, even if there was a legitimate rationale for

allowing such comments, such a rule would not affect

the outcome here, since the violation of Respondent’s

Fifth Amendment rights was premised on the

cumulative effect of multiple comments. Accordingly, the

State’s petition for writ of certiorari should be denied.

A. The Sixth Circuit’s Decision is Not in Conflict

With Any Other Circuit and Does Not Warrant

Review by This Court.

The Fifth Amendment is the source of a defendant’s

right not to testify in his own defense and the correlated

right not to have this fact used as substantive evidence

of his guilt. U.S. Const. amend. V, § 3 (“nor shall be

compelled in any criminal case to be a witness against

himself”); Wilson v. United States, 149 U.S. 60 (1893);

Griffin v. California, 380 U.S. 609, 615 (1965) (holding

5)

that the Fifth Amendment “forbids either comment by

the prosecution on the accused’s silence or instructions

by the court that such silence is evidence of guilt”). In

turn, the Fourteenth Amendment makes this right

available to defendants in state courts by “secur[ing]

against state invasion the same privilege that the Fifth

Amendment guarantees against federal infringement—

the right of a person to remain silent unless he chooses

to speak in the unfettered exercise of his own will, and

to suffer no penalty .. . for such silence.” Malloy v.

Hogan, 378 U.S. 1, 8 (1964). Therefore, because both

the Fifth and Fourteenth Amendments secure to

defendants the same substantive rights (but merely in

different fora) there should be no substantive difference

in assessing prosecutorial misconduct under either

Amendment. Both the Sixth Circuit below and other

circuits have recognized this and have properly used

the separate prosecutorial misconduct tests developed

under Fifth and Fourteenth Amendment jurisprudence

interchangeably.

1. The Sixth Circuit Correctly Analyzed

Respondent’s Claims.

The court below used the Fourteenth Amendment

Carroll* flagrancy test to determine whether the

prosecutor’s comments resulted in a due process

violation. A court using the Carroll test engages in a

two-step analysis. The first step is to determine whether

2 Although this test is referred to by different names in

-different circuits, the Sixth Circuit in the opinion below has

referred to the test as the Carroll test or the Carroll-Carter

test. For ease of reference, we will refer to all iterations of this

test as “Carroll” tests or “Carroll-type” tests.

6

the prosecutor’s conduct and remarks were improper.

App. 3la (citing United States v. Carter, 236 F.3d 777,

783 (6th Cir. 2001)). If the prosecutor’s remarks are found

to be improper, then the court proceeds to evaluate the

comments in a four-factor rubric to determine whether

the remarks are flagrant and thus reach constitutional

error. The four factors are: (1) the likelihood that the

remarks of the prosecutor tended to mislead the jury

or prejudice the defendant; (2) whether the remarks

were isolated or extensive; (3) whether the remarks were

deliberately or accidentally made; and (4) the total

strength of the evidence against the defendant. United

States v. Carroll, 26 F.3d 1380, 1385-87 (6th Cir. 1994).

The State argues that the lower court’s use of the

Carroll test was reversible error and the court should

have employed instead the Morrison-Knowles test,

Petition at 17, which contains substantively identical

points of analysis:

“(1) [W]Jere the comments ‘manifestly

intended’ to reflect the accused’s silence or

of such a character that the jury would

‘naturally and necessarily’ take them as such;

(2) [wjere the remarks isolated or extensive;

(3) [w]Jas the evidence of guilt otherwise

overwhelming, and (4) [w]hat curative

instructions were given, and when.”

Byrd v. Collins, 209 F.3d 486, 533-34 (6th Cir. 2000).

As illustrated in the discussion below, the several courts

of appeals, properly following this Court’s clear

guidance, have utilized the Carroll test to judge the

constitutionality of a prosecutor’s comments, and the

7

court below correctly applied the test in deciding

Respondent’s claims.

Despite the State’s assertion that lower courts are

fractured on the proper use of the two tests, courts have

used Carroll-type tests interchangeably with the

Morrison-Knowles test, often without comment.

See, e.g., United States v. Davis, 63 Fed. Appx. 76, 79

(4th Cir. 2003) (using prosecutorial misconduct test to

evaluate prosecutor’s comments on defendant’s silence);

United States v. Cox, 752 F.2d 741, 745 (1st. Cir. 1985)

(Breyer, J.) (using similar test to evaluate a

prosecutorial comment on silence) (quoting United

States v. Capone, 683 F.2d 582, 586 (1st Cir. 1982));

see also Durr v. Mitchell, 487 F.3d 423, 439 (6th. Cir.

2007). The reason that this Court has not yet addressed

this seeming inconsistency is simple: the two tests are

substantively identical. Indeed, the cases cited by the

State actually establish that the Carroll test is perfectly

appropriate to evaluate a prosecutor’s comments for

potential misconduct.

The State’s petition relies heavily on United States

v. Cotnam, 88 F.3d 487 (7th Cir. 1996). While the Cotnam

court recognized that prosecutorial statements

regarding a defendant’s decision not to testify are

prohibited by the Fifth Amendment, the Court

acknowledged that such statements would also result

in a Fourteenth Amendment due process violation. The

State’s petition quoted language from Cotnam stating

that the Fifth Amendment test is preferred, Petition at

16, but the State omitted the first clause of the very

same sentence, which emphasized the overlap between

the Morrison-Knowles test and the Fourteenth

8

Amendment analysis used by the Sixth Circuit below.

The full quote from Cotnam is:

While the appellants in these cases may have

framed their appeals as due process claims,

and recognizing that a violation of a

defendant’s right not to testify would also

result in a denial of due process, a claim that

a prosecutor improperly commented upon the

defendant’s failure to testify is most properly

considered first under the traditional Fifth

Amendment test outlined above.

Cotnam, 88 F.3d at 498 n. 11,

Further, even accepting the State’s erroneous

contention that the use of a Fourteenth Amendment test

in silence-related prosecutorial misconduct claims might

lead to reversible error in some cases, the State’s

case law in support of this theory is simply not analogous

to the situation presented in Respondent’s trial.®

In the present case, for instance, the prosecutor’s

impermissible comments were repeated and made in

close succession during closing arguments, shortly

before the jury retired. App. 34a. However, in Bbarrientes

v. Johnson, 221 F.3d 741, 778-81 (5th Cir. 2000), only one

comment regarding defendant’s silence was made

throughout the entire trial. Furthermore, unlike the

prison disciplinary proceedings that this Court reviewed

in Baxter v. Palmigiano, 425 U.S. 308, 317 (1976), the

* A determination of the constitutionality of a prosecutor’s

comments requires an examination of the specific circumstances

of a trial. See Lockett v. Ohio, 438 U.S. 586, 595 (1978).

9

proceedings in the case below were criminal in nature,

thus requiring different constitutional analysis. Finally,

in contrast to the present case, the prosecutors’

comments in Butler v. Rose, 686 F-2d 1163, 1172 (6th

Cir. 1982), and Lockett v. Ohio, 438 U.S. 586, 595 (1978),

for example, were found not to violate constitutional

prohibitions specifically because defense counsel in both

cases first drew their jury’s attention to defendants’

decision not to testify. Here, defense counsel made no

such comments. In short, none of the cases cited by the

State to support its position are analogous here, and

the Sixth Circuit’s decision correctly applied the law after

carefully evaluating the specific facts of this case.

2. The Fourteenth Amendment and Fifth

Amendment Tests Are Indistinguishable

“To suppose that ‘due process of law’ meant one

thing in the Fifth Amendment and another in the

Fourteenth is too frivolous to require elaborate

rejection.” Malinski v. New York, 324 U.S. 401, 415

(1945) (Frankfurter, J., concurring). Indeed, proving

Justice Frankfurter correct, the State’s petition is

nothing more than an exercise in attempted hair-

splitting between the nearly identical analytica!

frameworks arising under each Amendment: as

acknowledged in Cotnam, the Fourteenth and Fifth

Amendment due process tests vary only “slightly.”

88 F.3d at 497.

The State attempts to magnify this “slight”

difference by exaggerating the linguis‘ic differences

between the two tests. For instance, the State’s petition

argues that “(t]he Morrison Knowles test is better than

10

the test that ths court below used because the ‘manifest

intent’ and ‘natural and necessary’ factors ensure that

verdicts are not set aside for words taken out of

context.” Petition at 17-18. But this terminological

distinction does not hold up when the court’s actual

aralysis is considered. In applying the Carroll test, the

court below specifically considered the context and

apparent intent of the prosecutor’s statements and their

impact on the jury. See App. 34a. (“The multiple

statements strongly suggest that [Respondent’s]

silence was a central theme in the prosecutor’s closing

argument.”); App. 35a, (“Repeated comments

demonstrate that the errors were not inadvertent. ...

[T]he prosecutor intended to comment (especially with

regard to the third statement) on [Respondent’s] failure

to testify and... the jury likely understood the

comments to have been offered for that purpose.”)

(emphasis added). The court’s analysis below gives the

lie to the State’s contention that the Morrison-Knowles

and Carroll tests are materially different. Both tests

logically require an examination of the context to

ascertain the prosecutor’s intent and the jury’s

understanding of the comments, and that is precisely

what happened here.

Moreover, a close reading of both tests shows that

they are substantively identical. The Carroll flagrancy

test, cited earlier, follows two steps. The first step is to

determine whether the prosecutor’s conduct and

remarks were improper. App. 3la (citing United States

v. Carter, 236 F.3d 777, 783 (6th Cir. 2001)). If the

remarks are found to be improper, then the court

proceeds to the four-factor test in determining whether

the remarks are flagrant and thus require reversal.

11

The State’s argument that there is a meaningful

distinction between the two tests completely ignores the

first half of the Carroll test, which requires a court to

determine whether the statements were improper.

Carter, 236 F.3d at 783. Only after a statement is found

to be improper will the court proceed to analyze the

flagrancy of the comment under the four-factor test.

Because the first step of the Carroll test requires a

court to assess whether an argument was improper, the

state’s assertion that a prosecutor’s “legitimate point,”

Petition at 20, could be held to be constitutional error

and “steer[] the court to the wrong result” is mistaken.

The very first step of the Carroll test determines

whether the statement was legitimate.

Further, even if the first part of the Carroll test did

not exist, the operation of the four-factor test itself

ensures that legitimate comments will not be deemed

improper. The State’s assertion that “[l]egitimate

statements might well be flagrant, because prosecutors

can and do make them openly,” Petition at 20, might

well be a valid point if the meaning of flagrant were

“openly;” however, it is not. See WEBSTER’s NEw

UNIVERSAL UNABRIDGED DICTIONARY 538 (1992) (defining

“flagrant” as “outrageously glaring” vr “notorious;

scandalous”). The concept of flagrancy includes an

element of wrongfulness and inteni—just as the

Morrison-Knowles test does. In sherc, the Morrison-

Knowles and Carroll tests are substantively identical

both on their face and as applied, and the State’s

argument that the two tests are markedly different is

unconvincing.

12

3. The Application of the Morrison-Knowles Test

to the Facts-.in This Case Would Not Change

the Result.

Because the Morrison-Knowles and the Carroll

tests are essentially the same, the State has not, and

cannot, make any reasonable showing that the Sixth

Circuit would have reached a different result if a different

standard had been used. Because the prosecutor both

intended to comment about the defendant’s silence to

the jury and those comments were prejudicial, either

test would result in a determination that the

prosecutor’s comments violated Respondent’s right not

to testify against himself.

The Morrison-Knowles factors are easily satisfied

under the present facts. Clearly, the prosecutor

“manifestly intended” to comment on Respondent’s

silence by stating: “we don’t have to tell you how it was

introduced into her system. We know that it was

ingested. And there is only one person that can tell you

how it was introduced, and that is the defendant.” App.

24a. As noted at the district court, this “statement is

anything but a comment on the evidence.” App. 98a.

The Sixth Circuit echoed this sentiment, finding that

“It}he prosecutor intended to comment... on

{[Respondent’s] failure to testify and that the jury likely

understood the comments to have been offered for that

purpose.” App. 35a. This third comment was a direct

and unequivocal statement regarding Respondent’s

decision not to testify and alone would satisfy the first

Morrison-Knowles factor.

13

Further, even standing alone, the third statement

would be considered “extensive” and violative of

Respondent’s Fifth Amendment right, but it is

particularly so when analyzed in light of the prosecutor’s

two other inappropriate comments relating to

Respondent’s silence that were made during closing

argument, so the second Morrison-Knowles factor is

also satisfied.

Finally, the last two Morrison-Knowles factors are

satisfied based on the court’s analysis below in finding

that the evidence of Respondent’s guilt was not

overwhelming and that the trial court. did not issue a

curative instruction to the jury regarding the

prosecutor’s inappropriate comments. App. 35a-36a;

App. 33a.

Ultimately, using either the Carroll or Morrison-

Knowles test, a court would have found that the

prosecutor’s comments constituted prosecutorial

misconduct. The test used below substantively mirrors

the test suggested by the State and analysis under either

test would lead to the same result: that the State, for a

second time, violated Respondent’s Fifth and

Fourteenth Amendment rights. Accordingly, because the

court below properly analyzed the issue and because

the State’s proposed test would not result in a different

result, this Court should deny the State’s petition for

certiorari.

14

B. The Issue of Respondent’s Pre-Arrest Silence is

Not Central to the Outcome of This Case and

Should Not be Considered by This Court.

1. This Case Does Not Present a Clear Set of

Facts for the Court’s Resolution.

While the State correctly asserts that this Court has

yet to definitively resolve the issue of whether pre-arrest

silence can be used as substantive evidence of guilt, this

case is not worthy of review by this Court because of

the unique factual circumstances presented. The State’s

petition claims that “the certworthiness of this case...

is not in any way diminished by the fact that the pre-

arrest silence issue arose in conjunction with the two

other purportedly improper prosecutorial statements,”

Petition at 27, but it is difficult to imagine how the

presence of the two additional statements would not

needlessly muddy the Court’s review of this issue. This

is particularly so given the cumulative effect of the

statements and that the courts below emphasized that

the prosecutor’s most egregious statement was his third

statement, App. 35a, which dealt not with pre-arrest

silence, but rather with the State’s claim that “only one

person ...can tell you how [the cyanide] was introduced,

and that’s the [Respondent].”

2. The Sixth Circuit’s Decision Below was

Correct.

Despite the State’s characterization of the lower

courts as “badly split on this issue,” Petition at 25, many

federal and state courts that have analyzed the issue,

including Ohio, have found that the Fifth Amendment

15

necessarily protects pre-arrest statements. This makes

perfect sense; to hold otherwise would create a catch-

22 for defendants: remain silent and face the prospect

of that silence being used as substantive evidence of

guilt, or speak to investigators and risk having one’s

own words introduced as incriminating evidence at trial.

See, e.g., Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.

1989); United States v. Caro, 687 F-2d 869, 874-75 (2d

Cir. 1981); Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.

2000); Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987);

United States v. Burson, 952 F.2d 1196, 1200-01 (10th

Cir. 1991); see also Ohio v. Leach, 807 N.E.2d 335, 340-

41 (Ohio 2004); cf United States v. Hernandez, 476 F.3d

791, 796 (9th Cir. 2007) (holding that post-arrest, pre-

Miranda silence cannot be used as substantive

evidence of guilt).

The court below followed the established rule.

good reason: following the State’s argument to its logical

conclusion would effectively nullify the Fifth

Amendment’s protections against self-incrimination. Not

only would a defendant be faced with the Morton’s Fork

described above, but adoption of this rule would also

encourage gamesmanship by the State during its

investigation, for such aresult would create an incentive

to unnecessarily delay arrest (and thus delay reading

of Miranda warnings) with the understanding that no

matter the defendant’s actions, he will incriminate

himself, either by remaining silent or by speaking.

Because the decision below correctly decided the issue,

this Court need not grant the State’s petition.

16

3. The AEDPA’s Presumption Does Not Apply to

the Facts of This Case.

The State correctly notes that this is an AEDPA

case, but the statute applies only to those claims that

were “adjudicated on the merits in State court

proceedings.” 28 U.S.C. § 2254(d). If a state court’s

analysis of a particular claim omitted or failed to consider

one or more elements of a federal constitutional claim,

each element that the state court failed to consider must

be reviewed de novo. Rompilla v. Beard, 545 U.S. 374,

390 (2005) (finding that federal court could examine

prejudice issue de novo because state court never

reached it). Here, the state court below did not reach

the merits of [Respondent’s] claim that the prosecutor’s

comments regarding his pre-arrest silence amounted

to a violation of his due process rights under the Fifth

Amendment. See State v. Girts, 700 N.E.2d 395, 414

(Ohio Ct. App. 1997). The state appellate court devoted

a mere two paragraphs to the prosecutor’s second

statement in its opinion, and it found only that

“the statement was an accurate summation of the

evidence.” Jd. Whether the evidence is accurately

summarized is not the issue because it does not address

the merits of Respondent’s constitutional claim because

it does not address whether Respondent’s Fifth

Amendment rights were violated. Because the state

appellate court “neither asked nor answered the right

question,” a court’s habeas review must proceed

de novo. See Medellin v. Dretke, 544 U.S. 660, 680 (2005)

(de novo consideration was proper because state court

did not ask or answer the right question) (O’Connor, J.,

dissenting from dismissal of certiorari as improvidently

granted); Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.

17

2004). Accordingly, the AEDPA does not properly govern

Respondent’s claims relating to the State’s use of his

pre-arrest silence as substantive evidence of guilt and

the Sixth Circuit properly considered this claim de novo.

CONCLUSION

For the foregoing reasons, the Court should deny

the State of Ohio’s petition for writ of certiorari.

Respectfully submitted,

RoBERT F. WARE

THOMPSON HINE LLP

3900 Key Center

127 Public Square

Cleveland, Ohio 44114-1291

(216) 566 5500

(216) 566-5800 (facsimile)

Counsel for Respondent