Lester J. Pope, Superintendent of California Medical Facility at Vacaville v. Theodore Monroe Harper

Harper is a California State prisoner and Pope is superintendent of the penal institution in which Harper is confined. The State appeals from an order of the District Court granting Harper’s petition for a writ of habeas corpus and ordering Harper’s release from custody unless the State affords him a new trial within ninety days following the effective date of the order. Execution of the order was stayed pending appeal.

In 1963 a jury found Harper guilty of rape, oral copulation by force, kidnapping, aggravated assault, and escape. He appealed his judgment of conviction to the District Court of Appeal. That court initially reversed the conviction on the authority of Griffin v. California (1965) 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 , because the prosecutor had commented on Harper's failure to testify. On rehearing the District Court of Appeal reversed itself and confirmed the conviction on the ground that the error was harmless. Harper’s petition for hearing in the California Supreme Court was denied in January 1966.

Harper then filed his petition for a writ of habeas corpus in the District Court. Relying on Blair v. California (9th Cir. 1965) 340 F.2d 741 , the court…