Marshall Andre Kelly v. Walter T. Stone

Good Law
514 F.2d 18·1975 U.S. App. LEXIS 15539
United States Court of Appeals for the Ninth CircuitMarch 21, 197574-1966California457 words

Opinion

Opinion

Marshall Andre Kelly, a California state prisoner, petitioned the United States District Court for a writ of habe-as corpus. He urged as grounds for relief prosecutorial misconduct during his state court trial. The district court denied him relief, and he has appealed.

Kelly is black, and the charge was forcible rape. In these circumstances, the district attorney’s exhortation in a closing argument to the jury to “[tjhink about the consequences of letting a guilty man, a man guilty of a serious and rather horrible crime, go free. Because maybe the next time it won’t be a little black girl from the other side of the tracks; maybe it will be somebody that you know; maybe it will be somebody that I know. And maybe the next time he’ll use the knife. . . .” constituted a highly inflammatory and wholly impermissible appeal to racial prejudice. (R. 29-30) Guilty verdicts must, of course, be based upon solid evidence, not upon appeals to emotion. See United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2nd Cir. 1973).

Moreover, the district attorney violated the Griffin rule. (Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965).)

The charge being…

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