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State v. Dixon6/3/2005
of a defendant's action in hiring an attorney in view of the tendency of such testimony to serve as the base for an inference of guilt based on such an act.
"Earlier, in United States v. Liddy (D. C. Cir. 1974) 509 F.2d 428, that same court indicated that the Griffin principle prohibits drawing adverse inferences from not only the fact of hiring an attorney but also the time and circumstances of retaining an attorney. The court specifically warned of the 'mischief of the approach' that allows time and circumstances to be taken into account because it 'raises problems that hobble the right to seek counsel,' inviting 'probing of the very process of selection of counsel-who, why, when and where. . . .' (Id. at p. 444.) As the Liddy court observed (ibid.): 'It would be a rare case indeed where the prosecutor could not point out that the incriminating feature of the employment of counsel . . . rests not in the employment as such but in the time and circumstances surrounding that event, and inferences therefrom that reflect adversely on the defendant. [Fn. omitted.]'
"Recently, in United States v. Gold (N.D. Ill. 1979) 470 F. Supp. 1336, the federal district court held that it was improper for prosecutors by questions and comments to draw adverse and incriminatory inferences from a corporation's employment during administrative proceedings and investigation of a particular law firm which had a nationwide reputation as criminal defense lawyers. The court stated ( id., at p. 1352): 'It is not to be doubted that [the corporation] had the constitutional right to employ counsel of its choice in the administrative proceedings, and certainly to be advised with regard to the criminal investigation. . . . It is improper, where a right is constitutional, for a prosecutor either to question or comment on its exercise. [Citation.] To do so is to make assertion of the right costly. [Citations.] For this reason, in a criminal law context, it is basically unfair for a prosecutor to urge against a person the time and circumstances of his retention of an attorney.'" 114 Cal. App. 3d at 188-89.
The California court reversed Schindler's murder conviction because it concluded that the errors were prejudicial:
"The improper exploitation of defendant's exercise of her constitutional rights to remain silent and to retain the counsel of her choice cannot be deemed harmless error under either the standard stated in People v. Watson (1956) 46 Cal. 2d 818 [299 P.2d 243], or the higher standard specified in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed. 2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. The only issue at trial was defendant's intent and mental capacity at the time of the commission of the offense. The defense evidence was substantial. The rebuttal evidence directly attacked her defense, and the prosecutor's argument that the evidence showed she was fabricating her 'panic' state was most prejudicial. Furthermore, the fact that the jury deliberated 22 hours before reaching a verdict underscores the closeness of the case and the crucial nature of the constitutional violations. (See People v. Rucker, supra., 26 Cal. 3d at p. 391.) The judgment of conviction, therefore, must be reversed." 114 Cal. App. 3d at 190.
In McDonald, the Fifth Circuit Court of Appeals found merit in a defendant's claim that "the prosecutor transgressed his Sixth Amendment right to counsel by eliciting testimony that his lawyer was present when Secret Service agents executed a search warrant at his home and by commenting on that fact during closing arguments." McDonald's convictions of dealing in counterfeit currency and conspiring to deal in counterfeit currency were overturned. 620 F.2d at 560, 566. When age
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