When the prosecutor said “he” did he mean the Defendant or the blood of his victim?

Though Duke v. Allen does not involve a white collar offense, it is important because it touches on a person’s Fifth Amendment right to remain silent at trial. When an person exercises the right not to testify at trial, the prosecutor can not make any comment about it in closing argument. It is misconduct by a prosecutor to ask a jury cannot consider the defendant’s silence in any way in their deliberations.

Mark Duke was on trial in Alabama state court for the murder of his father and three other persons. In closing arguments the prosecutor summarized the prosecution’s theory. “He [the codefendant who testified for the state] told the truth, ladies and gentleman, and here is how we know it, there’s a witness that you heard from but he didn’t’ come in here and talk to you from the witness stand. After he shot, stabbed, and cut the throat of Randy Duke, he took Randy Duke’s blood with him throughout that house.”

The defendant’s attorney moved for a mistrial and added this comment: “Let the record reflect that the district attorney pointed straight at the defendant when he said that.” In his appeal to the Alabama appeals court, the defendant argued that the prosecutor violated federal and state law by commenting on the defendant’s decision not to testify at trial. The Alabama court disagreed.

The defendant then brought his case to federal court with a petition for a writ of habeas corpus. The petition offers a state prisoner an opportunity to challenge his conviction in federal court if he can show the state court conviction involved an unreasonable application of federal law or resulted in a decision based on an unreasonable determination of facts in light of evidence presented at the state court proceeding.

The defendant argued in his habeas petition that in the context of the trial evidence, where the jury “heard” from the defendant in a recorded 911 call but not through his testimony, it was clear that the prosecutor’s statement would have been understood as a comment on Petitioner’s silence in violation of Griffin v. California, 85 U.S. 1229 (1964). Pointing his finger at the defendant ensured that the jury knew who he was talking about.

The Eleventh Circuit decided that the comment “there’s a witness that you heard from but he didn’t come in here…” could have referred to the blood of the victim. In other words “he” could be referring to the victim’s blood and not the defendant. As for the gesture at the defendant, the court’s conclusion was that counsel’s statement “let the record reflect,” was not enough by itself to preserve the record. In other words the court would not consider the purported gesture by the prosecutor.

Judge Wilson dissented, concluding the prosecutor clearly commented on Duke’s decision not to testify, in violation of the Fifth Amendment right against self-incrimination. He found the Alabama court’s interpretation of these statements to be unreasonable, and rejected the argument that “he” could mean the victim’s blood.

“This makes no sense because it would mean that Randy Duke’s blood ‘shot, stabbed, and cut the throat of Randy Duke’ and that Randy Duke’s blood took itself ‘throughout the house.’ The majority accepts this story even though the State could not consistently or coherently articulate such and argument in the moments after the comment was made, and despite the fact that the prosecutor who spoke it did not dispute that he was referring to Duke.”

Wilson added that without the gesture it was an improper comment on the defendant’s right to remain silent, but took issue with the failure to consider the gesture as part of the record simply because the trial judge did not say something like “the record will so reflect.” He also pointed to the fact that no one in all the prior court proceedings (trial court, prosecutors, Alabama appellate courts, federal magistrate, district court or even the state in its brief) ever raised the possibility that the pointing gesture never occurred, until the state raised it at oral argument.