CA1: no prejudice in prosecutor comment

Delaney v. Bartee, No. 07-1526 affirms a habeas denial.  The underlying issue is whether “the prosecutor violated his constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his decision to remain silent after arrest.”  Although it seems that the plaintiff was poor, the fact-pattern (essentially a street fight) arose in an “office building” in downtown Boston with at lest 37 floors.  So, there might have been middle-class people nearby.

The state courts affirmed the conviction, saying that timely objections were not made.  On habeas, the government argues that the state courts were doing more than just mechanically applying a procedural default rule – they were also engaging in a “substantial risk of miscarriage of justice” analysis.  The First says that there just wasn’t enough prejudice to make it worth its while to determine whether the state court’s decision relied on the procedural default rule.

And so, as usual, the First Circuit gives the green light to all sorts of prosecutorial misconduct. Why? Prosecutors will read this (and if they are ethical, they will read the actual case) and declare that there was “no prejudice” which means “go ahead.