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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1492%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1492%3A3. Public record. Not legal advice.