On March 4, 2011, EJI attorneys argued at the Eleventh Circuit Court of Appeals in Atlanta, Georgia, on behalf of an EJI client who is serving life imprisonment without parole after being convicted of capital murder in Alabama for an offense at age sixteen.
The federal appeals court requested oral argument on the issue of whether the Shelby County prosecutor illegally commented on the defendant's right not to testify at trial. The record shows that the prosecutor told the jury in closing argument that it should believe the State's key witness, who was an accomplice to the crime, because "there’s a witness that you heard from but he didn’t come in here and talk to you from this witness stand."
The defense attorney objected and moved for a mistrial, asserting: "Let the record reflect that the district attorney pointed straight at the defendant when he said that. That is the most direct comment on a defendant’s failure to testify I have ever seen."
Well-established state and federal law bars prosecutors from commenting on a defendant's decision not to testify at trial because such comments infringe on the defendant's Fifth Amendment right to remain silent and to not be a witness against himself -- especially where the comment urges the jury to make a finding against the defendant because he did not testify.
EJI client Mark Duke was sixteen years old when he and an older teen were charged with capital murder in deaths of Mark's father, his father's girlfriend, and her two daughters. Mark was convicted and sentenced to death based largely on the co-defendant's testimony. His death sentence was reversed and he was sentenced to life imprisonment without parole after the United States Supreme Court ruled in Roper v. Simmons that it is unconstitional to sentence children to death.