I
Dаniel L. Bruno was convicted in 1978 of first degree murder and his conviction was affirmed by the California courts. He thereafter petitioned the United States District Court fоr the Northern District of California for a writ of habeas corpus. He proceeded on two grounds. He charged first that his prosecutor had violated
Doyle v. Ohio,
II
In opening arguments before the jury, 1 the prosecutor reviewed the testimony of an important witness for the defense thаt had repudiated earlier pro-prosecution statements she had given government investigators. He inferred that this sudden reversal at trial in her memory was the direct product of her consultation with the accused’s attorney before she took the stand. He returned to this theme in the closing part of his argument. 2 Thus, in hopes of destroying the credibility of her testimony on the stand, the prosecutor had labelled defense counsel’s actions as unethical and perhaps even illegal without producing one shred of evidence to support his accusations.
In closing his summation 3 the prosecutor lunged into a vicious attack on thе accused’s claims of innocence by openly hinting to the jury that the fact that the accused hired counsel was in some way probative of the dеfendant’s guilt. Indeed, the obvious import of the prosecutor’s comments was that a 11 defense counsel in criminal cases are retained solely to liе and distort the facts and camouflage the truth in an abominable attempt to confuse the jury as to their client’s involvement with the alleged crimes. As in the eаrlier accusation of witness tampering, the prosecutor offered nothing from the evidence adduced at trial to support his suspicions that defense counsel had agreed for the- sake of profit to aid in fabricating a defense. On appeal, the State of California nevertheless attempts to explain away these insinuations and accusations as just “another reasonable interpretation” of the meeting of defense counsel with the witness, and contends that there was no error since the “undisputed testimony of defense counsel’s involvement in that meeting and the complete reversal of the witness’s memory following it” was “evidence” in the record to support the prosecutor’s comments. They also claim that the trial judge’s generаlized admonition to the jury to only consider what was in evidence adequately cured any prejudice from comments on Bruno’s exercise of his right to cоunsel. In the alternative, they submit that any error was harmless beyond a reasonable doubt. We disagree on the evaluation of error, and find the error not hаrmless beyond a reasonable doubt.
Ill
At the outset, we feel it incumbent on us to note that in no situation in a criminal trial such as this one do we feel the mere act of hiring an attorney is probative in the least of the guilt or innocence of defendants. “[L]awyers in criminal cases are necessities not luxuries,”
Gideon v. Wainwright,
Evеn more egregious, however, are attempts by representatives of the government to resort to these reprehensible means to shortcut their rеsponsibility to ferret out all admissible evidence and use only that to meet their burden of proof. We fear resort to such conduct indicates either an absence of sufficient evidence to convict or reflects shoddy government efforts that have failed to unearth admissible evidence. If the former is true, the government attorney has fulfilled his obligation to the People. He has served the twofold aim of justice “that guilt shall not escape or innocence suffer”.
Berger
v.
United States,
In this case the рrosecutor undoubtedly was guided by less than that most exalted of all principles. His insidious attacks on Bruno’s exercise of his constitutional right to counsel and his аttacks on the integrity of defense counsel were error.
United States v. McDonald,
IV
Because an error of constitutional dimensions occurred, we need only determine nоw whether it was harmless beyond a reasonable doubt.
Chapman v. California,
The improper remarks were made at an important stage of the trial and were extensive. They were not accidental but calculated to wrongly impute guilt to the defendant. These comments “strike at the jugular” of the defendant’s story,
United States v. McDonald,
AFFIRMED.
Notes
, MR. ROWLAND (Prosecutor): Now, after that statement was given a lot of events started taking place____ All of the sudden lawyers start getting involved in the case. [j|] And the next thing yоu know the following day when the (witness) comes in to testify, all of a sudden everything got turned around and thats no longer the case.
. MR. ROWLAND: ... Have you ever seen anything to сompare with the machinations? Talk about puppets, talk about malleable, talk about pressure! [fl] That lady was brought down to a lawyer’s office across the street from this building that very night, and spoke with the lawyer who represents her daughter (who was living with the defendant at the time of the murder). She spoke with Mr. Serra whо represents Mr. Bruno in this case. And what happens? The next day she has a lawyer of her own, recommended by Mr. Serra. Does that all tell you what happened to that poor lady? What kind of pressures did they exert on her? ....
MR. SERRA: I will object to that. There’s no evidence of that.
MR. ROWLAND: I think a reasonable inference can be drawn.—
MR. SERRA: I object.
The COURT: Overruled, this is argument.
. MR. ROWLAND: ... There is a Judas syndrome at work here аnd the criminal justice system is the cathedral. And it’s been a terrible sight to see it sullied the way it has been during this trial with the most blatant lies. But to complete that Judas syndrome the — the defense is the Judas in this case, and they have betrayed that system and there are thirty pieces of silver, or the $12,-000 given over by the defendant to his counsel.