dissenting:

I cannot concur in the majority’s opinion because I am unable to reconcile the majority’s views with our prior decisions in Scarborough v. Arizona (9th Cir. 1976) 531 F.2d 959 , and Fowle v. United States (9th Cir. 1969) 410 F.2d 48 . I cannot agree with the majority’s conclusions that the plain error in prosecutorial comment upon Lopez’ silence can be characterized as harmless beyond a reasonable doubt. In the context of his case, the plain error could not be brushed aside under ordinary harmless error standards; a fortiori, the error cannot be harmless beyond a reasonable doubt. In addition, other errors during the course of the trial, although not of constitutional dimension, cumulatively denied Lopez a fair trial.

I

The majority correctly recognizes that the prosecutorial comment upon Lopez’ silence is “very similar to the one . before us” in Scarborough , where we held that the error was not harmless beyond a reasonable doubt. The majority does not successfully distinguish this case from Scarborough . Indeed, in Scarborough , the comment was less extensive than that in this case, and it was less emphasized by the prosecution in the argument before the jury.

The majority’s efforts to distinguish Scarborough rest upon a misreading of the record. Defense counsel interrogated Agent Freking of the FBI about the statements that Lopez made to him during the course of the ride from Sells to Tucson. But the prosecutor’s comments to the jury were not directed to Lopez’ conversation with Freking, but to “the other agents” — a *687 statement that has to refer to Lopez’ silence in the presence of the arresting officer and other Papago officers before his interview by Agent Freking.

The Government did not attempt to justify this comment about Lopez’ silence on the ground that the error was harmless beyond a reasonable doubt. The Government correctly recognized that the contention, if made, could not properly be sustained. 1

II

The double errors made respectively by the district court and by the court reporter in stating that there was no testimony about the knife cannot be avoided. The majority implies that the errors were waived by the failure of Lopez’ counsel to make some kind of objection. An objection based upon the combined failure of recollection of the trial judge and a court reporter has not yet been added to the lexicon of trial lawyers. The majority opinion, also implies that failure to cure these errors was attributable to defense counsel because she did not continue the line of interrogation that was foreclosed by the trial court. No authority is or can be offered for this proposition. Trial counsel’s efforts to renew a line of questioning which has been effectively foreclosed by a trial court is an open invitation to a judicial reprimand. Moreover, almost anything the defense counsel would have said under these circumstances would have dug the hole in which the client was placed even wider and deeper.

These errors were serious. One of the basic underpinnings for Lopez’ claim of self-defense was that he had reason to believe that his brother was armed with a knife. As a result of these errors, Lopez’ principal line of defense was seriously undermined, if not altogether destroyed. We cannot overlook the realities of the courtroom. The judge’s intervention very surely could have persuaded the jury that there was no knife, and if any of the jurors recalled testimony about the knife, the testimony was either untrue or the jurors’ recollections were unreliable. The damaging character of these mistakes simply will not vanish.

Ill

The majority opinion again attempts to eliminate prosecutorial error in his opening statement in referring to testimony which was inadmissible by discovering a waiver of the error. Defense counsel promptly and immediately objected to the prosecutor’s statement on the ground that the evidence to which he had adverted was inadmissible hearsay. The court failed to rule on that objection, relying upon the prosecutor’s statement that he had cases supporting the admissibility of the hearsay. The court simply cautioned the prosecutor “well, you show me the cases, but don’t go into it until you can.” Defense counsel did all that she could reasonably be expected to do to protect her record by indicating at that time that the error was in mistrial territory. Under the circumstances of the district court’s refusal to rule upon the objection, a formal motion for a mistrial would have been an exercise in futility. Shortly after the district court finally ruled on the objection, defense counsel did make a formal motion for a mistrial. To require more of a defense attorney under the circumstances, is to reinstate legalistic rituals in the trial of cases which, I would have thought, we have long since abandoned.

All that the court did was to tell the jury to disregard as evidence all of the matters contained in the opening statements. Inadmissible hearsay to which reference was made was damaging. We do not know how much damage was done by the statement, and, if the error stood alone, it might possibly have been dismissed as harmless because actual prejudice would have been very difficult to establish.

*688 Fundamental error in the prosecutor’s comment upon Lopez’ silence, considered alone, requires reversal of this case. But, even if I had doubt about that proposition, that error combined with the other errors to which I have adverted, requires reversal. We must always be mindful about the climate in which a particular case is tried, because the atmosphere of any particular trial may strongly affect the impact of error. This trial was heavily ladened with emotion. The slaying of one brother by another is not only a tragedy in the Lopez family, it is a symbolic tragedy with lineage at least as old as Cain’s slaying of Abel. The fact that fraticide occurred between drunken Indians did not detract from the emotional atmosphere of this case. Under such circumstances, we should be especially careful to scrutinize claims of error.

I would reverse and remand for a new trial.

. The record does not supply any support for the majority’s assumption that the jury disregarded the statements in question. We have no basis other than pure guess to decide that the jury brought in a verdict of voluntary manslaughter, rather than second degree murder because it disregarded the hearsay.