Thomas N. Clark v. Louis S. Nelson

Habeas corpus. Clark is a California prisoner, convicted of robbery. At his trial, he did not take the stand. The prosecutor commented briefly on Clark’s failure to testify, telling the jury that they would receive an instruction on the subject. The court gave CAL JIC instruction 5L The comment and instruction violated the ruling in Griffin v. California, 1965, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 , which was decided after Clark was tried. The conviction was affirmed on appeal.

On petition for habeas corpus, the District Judge granted the writ and the Warden appealed. We vacated and remanded for reconsideration in the light of Chapman v. California, 1967, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 . See Nelson v. Clark, 9 Cir., 1968, 388 F.2d 985 . The District Judge has now reconsidered, and has again ordered that the writ issue.

The judge concluded that “it cannot be said * * * beyond a reasonable doubt * * * that [the] * * * error did not influence the jury and affect the outcome of the trial.” We agree. One witness against Clark was the victim. His identification of Clark, while stated positively, leaves much to be desired. The other, and in many respects the key…