Kelly v. Stone, 74-1966
| Decision Date | 21 March 1975 |
| Docket Number | No. 74-1966,74-1966 |
| Parties | Marshall Andre KELLY, Petitioner-Appellant, v. Walter T. STONE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Roderick P. Bushnell (argued), San Francisco, Cal., for petitioner-appellant.
Herbert F. Wilkinson, Deputy Atty. Gen. (argued), for respondent-appellee.
Before LUMBARD, * KOELSCH and DUNIWAY, Circuit Judges.
Marshall Andre Kelly, a California state prisoner, petitioned the United States District Court for a writ of habeas corpus. He urged as grounds for relief prosecutorial misconduct during his state court trial. The district court denied him relief, and he has appealed.
Kelly is black, and the charge was forcible rape. In these circumstances, the district attorney's exhortation in a closing argument to the jury to constituted a highly inflammatory and wholly impermissible appeal to racial prejudice. (R. 29-30) Guilty verdicts must, of course, be based upon solid evidence, not upon appeals to emotion. See United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir. 1973).
Moreover, the district attorney violated the Griffin rule. (Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).)
The charge being rape brought the accused and his role in the alleged affair into particularly sharp focus. And although the district attorney did not directly comment that Kelly had not taken the witness chair to deny or give his version of the affair, her repeated assertions to the effect that the alleged victim's testimony of non-consent stood unchallenged "naturally and necessarily" (Hayes v. United States, 368 F.2d 814, 816 (9th Cir. 1966)) emphasized Kelly's testimonial silence.
Finally, the district attorney's peroration that "If you can't find the defendant guilty on the facts that I have presented to you, I feel like I just might as well, you know, close up shop and go home . . . ." was not only a highly improper expression of personal opinion but constituted a veiled threat to the jury to return a guilty verdict. The trial judge's prompt direction to disregard at most lessened the...
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