In United States v.Jace Edwards, No. 14-4088, the Court remands for a new trial following the government's concession that the trial prosecutor had violated the constitutional rule of Doyle v. Ohio, 426 U.S. 610 (1976). As restated in contemporary Third Circuit precedent, that rule prohibits the prosecutor from causing the jury to draw an impermissible inference of guilt from a defendant’s post-arrest silence after the defendant has been Mirandized. On appeal, the government’s sole contention was that the trial prosecutor’s misconduct was harmless.
The Court easily dispatches of the government's contention. Though the prosecution was founded on a controlled delivery, the Court explains, the trial boiled down to a credibility contest between the defendant and a cooperating witness. Despite “some evidence suggesting that [the defendant’s] exculpatory story was not plausible,” there was no way to say the verdict “was surely unattributable to the error.” Accordingly, the government had failed to "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained," as required to establish that constitutional error was harmless. Along the way, the Court lays stress on “the District Court’s belated and ineffective curative instruction,” noting that the court initially overruled defense counsel’s objection to the prosecutor’s improper closing argument, and that language elsewhere in the charge approved consideration of “any statements made and acts done or omitted by the defendant.” Quoting its earlier criticism of this language in United States v. Waller, 654 F.3d 430 (3d Cir. 2011), the Court notes that “jurors were invited by the District Court to consider the statements that [the defendant] failed to make.”