Daniel L. Bruno v. Ruth L. Rushen, Director, California Department of Corrections, and Paul J. Morris, Warden, California State Prison at Folsom

I

Daniel L. Bruno was convicted in 1978 of first degree murder and his conviction was affirmed by the California courts. He thereafter petitioned the United States District Court for the Northern District of California for a writ of habeas corpus. He proceeded on two grounds. He charged first that his prosecutor had violated Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976) by unfairly disclosing and using the defendant’s post-arrest silence to suggest to the jury that the entire defense first related at trial must therefore have been fabricated. He relied on several allegations of prejudicial and impermissible comments by the prosecutor as the second basis for his petition. This court agrees with the district court that the prosecutor’s comments were improper and not harmless beyond a reasonable doubt. Therefore, since there is an independent and sufficient basis to affirm the district court’s grant of the writ, we do not reach the claim that Doyle error occurred.

II

In opening arguments before the jury, the prosecutor reviewed the testimony of an important witness for the defense that had repudiated earlier pro-prosecution statements she had given government…