View Full Version : Greenville, Mississippi burglary suspect wins new trial

04-01-2004, 06:33 PM
Associated Press

JACKSON, Miss. - The Mississippi Supreme Court tossed out the burglary conviction of a Greenville man and admonished prosecutors at a new trial to not comment to the jury on the defendant's decision to remain silent.

Odis Emery Jr. was convicted of burglary of a dwelling in 2002 in Washington County. He was sentenced to 20 years in prison.

After his arrest - and at trial - Emery refused to make a statement about his whereabouts at the time the crime was committed. It was only under questioning at trial by the prosecution that Emery said he was at a friend's house when the break-on occurred.

The familiar warning given by police tells suspects they have a right to remain silent and to an attorney. They are told that anything they say may be used against them in court and if they can't afford a lawyer, one will be appointed for them by the court.

In closing arguments, a prosecutor told the jury that Emery had lied.

Justice Jess Dickinson, writing Thursday for the court, said the courts across the country have told prosecutors that they cannot use a witness' silence, even if he speaks up at trial, as a weapon to discredit the testimony.

"The accused's right to be silent then is equally as strong as the right not to testify and it is error to comment on either," Dickinson said.

Dickinson said the U.S. Supreme Court has held that the government cannot use an accused's exercise of a constitutional right as a weapon to convict him.

"It is lamentable and somewhat disturbing that this clearly enunciated legal principle, with a vintage of over 30 years, escaped both the trial court and the prosecutor," Dickinson said. "We would expect that this cross-examination technique employed by the prosecutor, and allowed by the trial court, would cease."