United States Eighth Circuit

Defendant's claim that prosecutor made improper reference to exercise of his right not to testify was procedurally defaulted when his attorney failed to raise the claim before the state court; district court erred in rejecting letter from defendant's brother in mitigation, and error was not harmless. Reversed in part to either reduce penalty to life in prison, or to require State to retry the issue of life or death.

Appellate Information

• Decided 09/19/2003
• Published 09/19/2003

Judges

• BOWMAN, Circuit Judge., Before LOKEN, Chief Judge, RICHARD S. ARNOLD, BOWMAN, WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, and COLLOTON, Circuit Judges, En Banc.

Court

• United States Eighth Circuit

Counsel

• For Appellant:
  
• John W. Simon, argued, Clayton, MO (Richard H. Sindel, Clayton, MO, on the brief), for appellant.


• For Appellees:
  
• Stephen D. Hawke, argued, AAG, Jefferson City, MO, for appellee.