dissenting.
While I agree with Judge Contie’s opinion that, although circumstantial, there was sufficient evidence in the case to warrant a conviction, I harbor such reservations about certain aspects of the prosecution that I dissent. These reservations concern *727not only ineffective assistance of counsel, which may well meet the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standards, but also actions of the prosecutor that were improper and prejudicial, depriving appellant of a fair trial. If the factual circumstances of guilt in this case were stronger, perhaps the problems might be viewed as harmless error, but in my view the evidence of guilt is not particularly strong and certainly not overwhelming.
The district judge in this case held with respect to appellant’s argument of ineffective assistance of counsel:
Officer Cihaj testified that, after a detective gave him his [Miranda ] rights, petitioner became upset and uncooperative and stated that he had served some time in a penitentiary.
The officer properly first gave Watson the warning that anything he said to the police might be used against him. Watson made no statement whatsoever about whether or not he had struck or abused the child he had earlier brought 'to the hospital. Furthermore, he said nothing that was inconsistent with his position of innocence taken at trial. As this court recently noted:
The Supreme Court held [in Doyle v. Ohio, 4.26 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)] that implicit in the Miranda warnings is the assurance that the suspect’s invocation of the right to remain silent will not be used against him.
Goudlock v. Marshall, 751 F.2d 865, 871-72 (6th Cir.), cert. denied, — U.S. -, 106 S.Ct. 380, 88 L.Ed.2d 334 (1985).
It seems clear to me that the prosecutor in questioning Officer Cihaj knew that Watson had made no statement indicative of guilt or innocence to her after having been warned about his Miranda rights. Watson had given no explanation to Officer Cihaj about his conduct during the critical time he was presumably alone with the child. The prosecutor’s only purpose was to draw from the officer an alleged admission that Watson “had served some time,” and the prosecutor intended to bring that out as a matter of direct proof.1 It was obvious that this would improperly work prejudice against defendant, who accordingly may have been deprived of his privilege of not testifying. The defendant’s attorney should have objected to this ploy by the prosecutor. The officer’s response was objectionable not only because she mentioned that Watson said he had “spent time,” but also because her use of the word “uncooperative” might well be construed as commenting on Watson’s silence, that is, the exercise of his right not to say anything about the potential criminal charge implicating him in the infant Ford’s death.2 The officer, of course, then conceded that Watson gave no statement, amplifying what she meant by his lack of cooperation.
The episode related above is seriously troubling. Not only does it suggest the actions of the prosecutor deprived Watson of a fair trial, but it also reflects the unwillingness or inability of Watson’s counsel to cope with the prosecutor’s tactics. Moreover, the prosecutor wrongfully pursued this same line by again asking about Watson’s “attitude ... in terms of cooperation.” The prosecutor knew that, without any objection, Officer Cihaj would respond *728that “there was none at all” — in other words, he did not make a statement nor give any explanation. Again, there was no objection to this by Watson's counsel.3
In my view Watson’s counsel also should have objected to the direct testimony, as a part of the State’s proof, of Officer Dear-mitt which again brought out the same fact of Watson’s silence at a later time following his arrest.4 Dearmitt testified, without objection, that while being booked at the station Watson did not desire to make a statement, that he obtained “no other statement” from Watson. In light of Ci-haj’s testimony concerning Watson’s silence, this further emphasis on Watson’s postMiranda silence was unconstitutional. In my view the repeated emphasis upon Watson’s being uncooperative, and upon his making no statement when advised about his Miranda rights deprived Watson of a fair trial.5
Whether the actions of the prosecutor and the police witnesses amounted to a violation of Doyle is not clear to me. It does not appear that using the narrow Goudlock definition of a Doyle violation the prosecutor was attempting to use post Miranda silence “to impeach or discredit an exculpatory explanation offered by the defendant at trial.” Goudlock, 751 F.2d at 866. Nevertheless, I cannot condone the conduct of the prosecutor nor feel anything but discomfort at the failure of Watson’s counsel, or the court, to prevent what seems to be a serious flaw in the conduct of the case against Watson.
For the foregoing reasons, I respectfully dissent and would direct the State of Ohio to retry appellant or grant him release from custody.
. The prosecutor made sure that the jury would understand what "spending some time” meant by improperly pursuirfg this inquiry:
Q: “He spent time where?"
A: "[I]n the penitentiary.”
. Cihaj’s response to the prosecutor’s improper question "what did Watson say?” was, in essence:
"... he didn’t have to answer anything without an attorney, ... and that he wasn’t going to answer anything.”
(Eliminating the inadmissible part that “he had already spent time”). Watson’s response, then, was a reiteration of the Miranda warning and that he was going to remain silent without an attorney present. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Officer Cihaj then later responded to another inappropriate question that Watson did not give “any kind of statement ... as far as the incident, no.” The prosecutor knew in asking this question that the witness would be telling the jury again that Watson was, in effect, exercising his constitutional right to remain silent.
. The trial court itself should not have permitted this second “comment" regarding Watson’s making no statement at all.
. I believe that the series of failures to object herein mentioned do constitute ineffective assistance of counsel under the Strickland v. Washington standards by falling below an “objective standard of reasonableness.” 466 U.S. at 687-88, 104 S.Ct. at 2065. I believe also that there is a "reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different,” or likely would have been different. Id. at 691, 104 S.Ct. at 2068; see also Hill v. Lockhart,-U.S.-, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985).
. At another time during the testimony of the police officer, Watson’s "uncooperative” attitude was further characterized as “surly.” The court sustained an objection to this characterization but the damage may have already been done.