dissenting.
It is well established in the jurisprudence of this court that an indirect reference to the defendant’s silence violates the Fifth Amendment when “1) it was the prosecutor’s manifest intention to refer to the defendant’s silence, or 2) the remark was of such a character that the jury would ‘naturally and necessarily’ take it to be a comment on the defendant’s silence.” Rodriguez v. Peters, 63 F.3d 546, 561 (7th Cir.1995) (quoting United States v. Donovan, 24 F.3d 908, 916 (7th Cir.), cert. denied, 513 U.S. 905, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994)). In dealing with the prosecutor’s comments on the defendant’s invocation of his Fifth Amendment rights, the Supreme Court of Indiana pointedly said that the prosecutor “was attempting to remind the jury that appellant had not testified.” Splunge v. State, 641 N.E.2d 628, 630 (Ind.1994). This is a finding of fact by that court to which we owe deference. See Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); United States ex rel. Lee v. Flannigan, 884 F.2d 945, 954 (7th Cir.1989), cert. denied, 497 U.S. 1027, 110 S.Ct. 3277, 111 L.Ed.2d 786 (1990). The alternate prong of the test is also met. The remarks here were clearly of the type that a jury would understand as a comment on the defendant’s silence. Moreover, even if we assume that the prosecutor did not violate the strictures of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), in his earlier deliberate eliciting of testimony on the defendant’s post-arrest silence, that questioning clearly exacerbated the effect of this later commentary on the right to remain *377silent. In a situation in which the state’s case relied, as a practical matter, on the testimony of the admitted murderer, Tara Fox, it simply cannot be said that this commentary by the prosecutor did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
Not only was the jury allowed to hear the prosecutor emphasize the defendant’s invocation of the right to silence, but the jury was also not permitted to hear the defense’s full crossexamination of Tara Fox’s motivation for giving testimony that fit the prosecutor’s version of the case. The trial court did not allow the defense to probe with sufficient comprehensiveness the possibility that Tara Fox was giving favorable testimony in the hope of securing prosecutorial acquiescence in the reduction of her sentence. The trial court apparently cut off the examination because of its misapprehension of Indiana law. In any event, the crucial point was not whether Indiana permitted reduction of the sentence but whether Fox believed that cooperation with the prosecutor could have assisted her in obtaining an earlier release. For a 21 year-old woman facing a release date when she was 51, this incentive, if it was found to exist, would have weighed heavily in the jury’s estimation of her credibility. That credibility was, to put it mildly, the linchpin of the state’s case.
Because I believe that the state trial court committed two serious errors of constitutional magnitude, that had a “substantial and injurious effect or influence in determining the jury’s verdict,” Brecht, 507 U.S. at 631, 113 S.Ct. 1710 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239), I respectfully dissent.