Opinion · Court of Appeals for the Fifth Circuit

Carlos Garza De Luna v. United States

Carlos Garza De Luna v. United States, 324 F.2d 375 (5th Cir. 1963)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1963-10-11
Topic
general

PER CURIAM. In studying this case we were well aware of the procedural difficulties inherent in our decision. We could not overlook them: the concurring opinion brings out clearly the basic difficulties, including the possibility of a conspiracy of co-defendants to promote a mistrial by having one of them comment upon the failure of another co-defendant to testify. The co-defendant’s right to comment is not tangential but is an essential, if complicating, element in the problem. We weighed these considerations against an accused’s Fifth Amendment right not to testify and his right to be free of comments on the exercise of his constitutional right to silence.

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5 opinions
DE LUNA v. UNITED STATES,324 F.2d 375(5th Cir. 1963)
Carlos Garza DE LUNA, Appellant, v. UNITED STATES of America, Appellee.
No. 19037.
United States Court of Appeals, Fifth Circuit.
October 11, 1963.
Page 376
James R. Gillespie, San Antonio, Tex., for appellant.

Russell B. Wine, K. Key Hoffman, Asst. U.S. Attys., San Antonio, Tex., for appellee.
Before BROWN, WISDOM and BELL, Circuit Judges.
PER CURIAM.
In studying this case we were well aware of the procedural difficulties inherent in our decision. We could not overlook them: the concurring opinion brings out clearly the basic difficulties, including the possibility of a conspiracy of co-defendants to promote a mistrial by having one of them comment upon the failure of another co-defendant to testify. The co-defendant's right to comment is not tangential but is an essential, if complicating, element in the problem. We weighed these considerations against an accused's Fifth Amendment right not to testify and his right to be free of comments on the exercise of his constitutional right to silence. We concluded that in criminal trials a fair interpretation of the Constitution prohibitsallreference to an accused's failure to testify.

The overriding consideration in all criminal cases is measured justice according to the Constitution. The inconvenience of a severance and the possibility of a mistrial if there should be a joint trial of co-defendants do not tip the scales for the Government when an accused's right to silence is in the balance.

The rehearing is denied.
BELL, Circuit Judge (dissenting).
I respectfully dissent. I would grant the petition for rehearing for the reasons stated in my special concurring original opinion.Page 494