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.”
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