(concurring).
I concur in and approve of Chief Judge Swygert’s opinion with the exception of part IV thereof as to which I concur that if there had been error it was harmless, but respectfully I cannot concur that the prosecutor’s challenged remarks were erroneous.
I do not read the remarks of Bartkus’ attorney as does Judge Swygert. I fail to find any indication in the remarks that there were technical reasons for the defendant’s failure to testify which his lawyer had to consider.
It is stated in Judge Swygert’s opinion that the attorney restated the relevant law — “that the burden of proof is on the prosecution, that the defendant need not come forth with evidence until the prosecution meets that burden.”However, aside from the question of whether there is ever any need (other than practical ones) for a defendant to come forth with evidence, the remarks only say that the burden of proof beyond a reasonable doubt is on the prosecution and the defendant does not have to prove anything including his innocence. If counsel had stopped there I could not find he had opened any doors to prosecutorial comment.
He did not stop, however, but switched from the matter of burden of proof to who made the decision as to whether the defendant would testify. I read in this a clear message to the jury to the effect that Bartkus was willing but his attorney was not and therefore he did not testify. The next reasonable step of the inferential process in the jury’s minds would be that the defendant could have testified to his innocence but that he was not permitted to do so by his lawyer as it “is not for the defendant to prove anything.”
I do not find the prosecutor’s statement entirely responsive to defense counsel’s remarks as defense counsel did not really tell the “jury what ostensibly his reasons were.” This part of his remarks, however, is apparently found to be innocuous.
The challenge is to that part to the effect that there were other considerations that enter an attorney’s mind “why the man might not testify.” It appears to me that when the defense counsel states in effect, “I did not let him testify,” leaving open as he did here the implication that the defendant otherwise might have testified, the prosecutor is not entering an area of impropriety in the general remark concerning “other considerations.”
I have expressed my opinion herein notwithstanding the fact that I am concurring in the result on this particular matter, as I feel it is unfortunate to put the stamp of approval of this court on the remarks of the defense counsel since similar remarks with the implications I see therein may well be made in cases where liability is a close question. The decision here would preclude the prosecutor from responding, thus leaving an improper implication unchallenged.
Here both attorneys used general language and the implications in the remarks of each were equally vague. I would hold that the prosecutor’s remarks were clearly invited and that the acceptance did not exceed the bounds of the invitation.