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State v. Dixon6/3/2005
omewhere along the line picked up the idea that Paul Geragos was the prosecuting attorney against Mr. Lou Schindler. Here is a woman who is in a panic state and within this panic state, she has a miraculous ability, this selective amnesia, to turn it off, reach down to the depths of her mind and pull out one attorney and of all of the attorneys in the world she felt could best give her representation that night--we are talking about the night of the killing--and that is Mr. Geragos. Where do you think she pulled that name from? Out of a hat?
"'. . . .And this was a few hours after the commission of the act, the act for which she was in a panic state.'" 114 Cal. App. 3d at 184-85.
The California appellate court summarized its ruling as follows:
"Defendant's constitutional rights to due process and against self-incrimination were violated by the admission in evidence (and use in argument) of her responses asserting her Miranda rights for the purpose of rebutting her diminished capacity defense. Further, exploitation of her choice of counsel for impeachment and rebuttal of her defense impaired her constitutional right to counsel and constituted prosecutorial misconduct. These errors were prejudicial. Accordingly, we must reverse the judgment. However, since the evidence was sufficient to support the jury's verdict, defendant can be retried for second degree murder." 114 Cal. App. 3d at 185.
For its decision on right to counsel, the California court cited Griffin v. California, 380 U.S. 609, 614, 14 L.Ed. 2d 106, 85 S.Ct. 1229 (1965), which held that a prosecutor's comment on a defendant's failure to testify violated the Fifth Amendment to the United States Constitution by making exercise of the right costly, as being "equally applicable to the constitutional right to counsel." 114 Cal. App. 3d at 188. The California court also discussed its agreement with several cases from lower federal and state courts:
"We agree with the Third Circuit Court of Appeals in United States ex rel. Macon v. Yeager (3d Cir. 1973) 476 F.2d 613, 615, which stated: 'For the purpose of the "penalty" analysis, . . . we perceive little, if any, valid distinction between the privilege against self-incrimination and the right to counsel. It can be argued, with equal vigor and logical support, as to either . . . situation . . . that a prosecutor's comment seeking to raise in the jurors' minds an inference of guilt from the defendant's constitutionally protected conduct constitutes a "penalty" on the free exercise of a constitutional right. [Fn. omitted.]'
"In Macon, the prosecutor in his summation to the jury commented upon the fact that the defendant called an attorney the morning after the alleged crime and argued that this action cast doubt on the defendant's claim that the shooting was an accident. The Macon court held this to be reversible constitutional error, interpreting Griffin as an absolute prohibition against the imposition of any penalty for the exercise of a constitutional right in a criminal law context. (Id., at pp. 615-616.)
"Several states have also generally held that a prosecutor cannot properly imply guilt from a defendant's request for counsel. (See, e.g., People v. Kennedy (1975) 33 Ill. App. 3d 857 [338 N.E.2d 414, 417-418]; State v. Kyseth (Iowa 1976) [240 N.W.2d 671, 674]; Mays v. State (Tenn. Crim. 1972) 495 S.W.2d 833, 836.)
"In United States v. Williams (D.C.Cir. 1977) 556 F.2d 65, 67, the Circuit Court of Appeals for the District of Columbia pointed out that ' estimony about the desire or request for a lawyer is impermissible.' The court noted that a prosecutor is constitutionally precluded from eliciting testimony
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