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Division II: Direct Comment on Right to Counsel Nixed Burglary Conviction

State v. Espey

We are all aware of the right to an attorney. As such, prosecutors can’t generally talk about you getting an attorney as evidence of your guilt.

Here is the pertinent part of the closing argument by the prosecutor:

Where I suggest you start is start with his own recorded statement that he gave to the police. Keep in mind that he had been on the run for approximately six weeks. Keep in mind that he had already consulted with two attorneys, Chip Mosley and Gary Kluwer. He had lots of time to figure out what story he was going to tell the police.

If you have ever dealt with somebody who is a good liar, they have a pattern. What they do is this: admit everything that you can’t [sic] admit without getting into trouble and only deny the stuff that you have to…

You heard Tom Espey’s story in there. I’m not guilty of burglary because I was invited into the house. I’m free. You can get me guys. I’m not guilty of robbery because I didn’t personally take anything. I’m free. Okay, I did everything else, but guess what? You can’t touch me. And he is wrong. He is wrong because it doesn’t understand what it means to be an accomplice. He doesn’t understand what accomplice liability means.

It’s pretty clear that the prosecutor commented on Espey’s right to obtain counsel. However, there was no objection. Usually, this amounts to waiver unless the violation was flagrant.  

The State “strike[s] at the core of the right to counsel” when it seeks to create an inference of guilt out of the defendant’s decision to me with counsel, even if the defendant meets with counsel shortly after the alleged crime takes place. That is precisely what the State did when it argued that Espey’s meetings with attorneys helped him to formulate the county gave to police upon arrest.”

Here, all the evidence related to credibility of testimony. Because the prosecutor tried to gain credibility by pointing to the defendant’s right to counsel, it was incurable. This case was only about testimony.

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