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Adverse Inference Instruction

Another case apparently relisted in Friday's Supreme Court conference (see post earlier today) involves instructing the jury not to draw adverse inferences from the defendant's failure to testify.

In Carter v. Kentucky, 450 U.S. 288 (1981), the Supreme Court decided that, in the guilt phase of a trial, the defendant is entitled to such an instruction on request.  Not all defendants request the instruction, though, because it highlights the fact that the defendant has not testified.  Telling people "don't pay attention to this" is a pretty good way of getting them to pay attention to something.

Does the Carter rule apply to a case where the defendant pleads guilty to the crime and admits the eligibility circumstance, so the jury is impaneled only to decide whether an admittedly death-eligible murderer should be sentenced to death?  The trial judge in the case of Robert Woodall did not think so, and neither did the Kentucky Supreme Court.  The federal district judge did, though, and a majority of a three-judge panel of the Sixth Circuit decided that the state court's contrary decision was contrary to clearly established Supreme Court precedent, the standard established by Congress for a lower federal court to overturn a state court decision on habeas corpus.  Judge Cook did not agree:
In granting habeas relief, today's majority finds a prejudicial violation of clearly established federal law in the trial court's failure to provide a Carter instruction to the sentencing jury after the defendant pleaded guilty to the relevant criminal conduct. Yet, the Kentucky Supreme Court carefully considered petitioner's Fifth Amendment claim in light of the same Supreme Court decisions -- Carter, Estelle, and Mitchell -- and rightly found that none addresses the circumstances presented here. The majority disregards that analysis, finds a violation of clearly established law, and ultimately resolves the matter in favor of speculation, worrying that the jury may have punished petitioner for failing to testify. This, despite a mountain of undisputed evidence that petitioner abducted, raped, maimed, and drowned a sixteen-year-old high school student. The court's judgment defies AEDPA deference and the Supreme Court's harmless-error teachings. I respectfully dissent.
The state asked the Supreme Court to review the case. White v. Woodall, No. 12-794, was on Friday's conference list but is missing from today's orders list.

Is a summary reversal in the offing?  Possibly, although I think it is premature to draw that conclusion.  Salinas v. Texas, No. 12-246, is being argued Wednesday.  (CJLF brief here.)  That case has a common root in the Supreme Court's 1965 decision in Griffin v. California, 380 U.S. 609, which first constitutionalized the rule against adverse inference from defendant's silence.  The court might be putting off a decision on what to do with Woodall until it decides where it is going with Salinas.

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