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Eleventh Circuit: No Mistrial for Mark Duke

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By Robyn Hagan Cain on November 29, 2011 3:03 PM

These are not new ideas: a criminal defendant has the right to remain silent, both in questioning and at trial. The prosecutor isn’t allowed to encourage a jury to infer guilt from a defendant’s silence. Such assertions will end in a mistrial.

But what if the prosecutor doesn’t explicitly state, “he-didn’t-testify-so-he-must-be-guilty?” According to the Eleventh Circuit Court of Appeals, a petitioner is not entitled to relief for prosecutorial innuendo. This week, the Eleventh Circuit rejected an appeal to re-hear Mark Duke’s case. Duke had appealed for a new trial after a prosecutor allegedly inferred that he should have testified.

Let's start by clearing one fact out of the way: Mark Duke admits that he killed his father. He is not innocent.

A jury concluded that Duke was also guilty of murdering his father's fiancée and her two daughters. In this case, the difference between one murder and four murders is the possibility of parole.

In a closing statement to the jury, the district attorney stated, "There's a witness that you heard from but he didn't come in here and talk to you from this witness stand. After he shot, stabbed, and cut the throat of Randy Duke, he took Randy Duke's blood with him throughout that house."

There is debate as to whether the prosecutor pointed at Duke when making the statement. Duke's attorney called for a mistrial, arguing that the point occurred. The state claimed that "overwhelming evidence here at best makes this a harmless error," reports the Associated Press.

In May, the Eleventh Circuit Court of Appeals decided that an Alabama appeals court had come to reasonable conclusions in upholding Duke's conviction.

The Eleventh Circuit's review of the case was limited to the trial record. After the alleged pointing incident, Duke's attorney made an oral motion: "Let the record reflect that the district attorney pointed straight at the defendant when he said that." However, he failed to preserve an adequate record to allow appellate courts to review Duke's claim in the light the gesture by the prosecutor because he didn't demand a ruling on his motion.

Had Duke's attorney received a ruling on his motion, the point-to-a-mistrial defense still would have been a long-shot, but it would have at least been preserved for appeal. Avoid becoming a cautionary tale, trial attorneys: Be sure to preserve your motions and objections for the record.

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