Alabama v. Michael Anthony Powell

Michael Powell was convicted of capital murder for shooting a gas-station clerk, Tracy Algar, in the head during a robbery. While awaiting trial, Powell tried to frame another man by forging a confession letter. Among other things, the letter said, “I hid the gun” and “told [Powell] where to find [it].” Powell’s counsel argued there is “doubt all over the place” because the State had “no gun.” Again: “This case is riddled with doubt” because there’s “no gun.” In rebuttal, the prosecutor responded: “[T]here is only one person in this room who knows where the gun is. One person, he is sitting over there.” Powell objected. At a sidebar, the prosecutor explained his inference based on the letter, adding: “I am not going to say he didn’t tell us.” In context, the remark was “perfectly proper.” United States v. Robinson, 485 U.S. 25, 33 n.5 (1988). But the lower court ignored the context and held that any “direct comment” on the choice not to testify violates the right against self-incrimination under Griffin v. California, 380 U.S. 609 (1965). It added that any uncured Griffin error “requires” reversal (App.24a) despite this Court repeatedly rejecting “a per se rule” of “automatic reversal,” United States v. Hasting, 461 U.S. 499, 508 (1983) (applying Chapman v. California, 386 U.S. 18 (1967)). The Court should summarily reverse on this question presented:

1. Whether courts must reverse for Griffin error without examining a prosecutor’s comment in context and without finding prejudice. Or the Court should grant the petition to decide:

2. Whether Griffin should be overruled.