James Henry Cain v. Hoyt C. Cupp, Warden, Oregon State Penitentiary

We adopt the opinion of the district court as follows:

“A State Court jury convicted James Henry Cain (Petitioner) of assault and robbery while armed with a dangerous weapon. The Oregon Supreme Court affirmed. State v. Cain, 230 Or. 286 , 369 P.2d 769 (1962). He filed this petition for a writ of habeas corpus under 28 U. S.C. § 2241 et seq.

Petitioner cites several acts of the prosecution which he claims denied him a fair trial. The first occurred when the prosecution called as a witness a person who had been indicted as an accessory to the crime. The witness entered a plea of not guilty. When called to testify in Petitioner’s trial, the witness invoked the privilege against self-incrimination. Petitioner alleges that the prosecution knew that the witness would claim the privilege.

Petitioner claims that the prosecutor was guilty of misconduct when he delivered the closing argument to the jury. The prosecutor commented on the witness’ exercise of the privilege; he asked the jury to draw unfavorable inferences from the exercise; he suggested that if Petitioner’s alibi were true it would have been unnecessary for the witness to have invoked the Fifth Amendment, because the…

(concurring) :

I concur in the result. I rely solely on prosecutorial misconduct with regard to the witness’ claim of privilege rather than on the cumulative-error approach of the District Judge and my colleagues, which I think substitutes federal judges’ notions of fair play in state criminal trials for clear standards of constitutional due process.

Here, I think that the prosecutorial misconduct amounted to an effective denial of the right of confrontation, but only because of the coincidence of the *359 following four elements: (1) the prosecution could not reasonably believe that the'witness would not assert his privilege, (2) the prosecution commented, in closing argument, on the witness’ refusal to testify, (3) the inference that the jury was asked to draw supplied an affirmative element of the prosecution’s c.ase, and (4) there was no curative instruction. These elements, I think, distinguish this case from Frazier v. Cupp, 1969, 394 U.S. 731, 733-737 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 .

442 F.2d 356 James Henry CAIN, Petitioner-Appellee, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent-Appellant. No. 24160. United States Court of Appeals, Ninth Circuit. April 28, 1971. Jacob Tanzer (argued), State Sol. Gen., David H. Blunt, Asst. Atty. Gen., Lee Johnson, Atty. Gen., Salem, Or., for respondent-appellant. Douglas Leonetti (argued), Beaverton, Cr., for petitioner-appellee. Before TUTTLE, 1 BROWNING and DUNIWAY, Circuit Judges. PER CURIAM: 1 We adopt the opinion of the district court as follows: 2 'A State Court jury convicted James Henry Cain (Petitioner) of assault and robbery while armed with a dangerous weapon. The oregon Supreme Court affirmed. State v. Cain, 230 Or. 286 , 369 P.2d 769 (1962). He filed this petition for a writ of habeas corpus under 28 U.S.C. 2241 et seq. 3 Petitioner cites several acts of the prosecution which he claims denied him a fair trial. The first occurred when the prosecution called as a witness a person who had been indicted as an accessory to the crime. The witness entered a plea of not guilty. When called to testify in Petitioner's trial, the witness invoked the privilege against self-incrimination. Petitioner alleges…