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UNITED STATES EX REL. MCLAUGHLIN v. PINTO

June 24, 1971

UNITED STATES of America ex rel. James Oswald McLAUGHLIN, Petitioner,
v.
Warren PINTO, Warden of New Jersey State Prison Farm at Rahway, Respondent


Lacey, District Judge.


The opinion of the court was delivered by: LACEY

LACEY, District Judge:

 Petitioner, proceeding pro se and in forma pauperis, seeks a writ of habeas corpus pursuant to 28 U.S.C.A. § 2241 et seq. (1971). Petitioner is attacking his 12 to 15 year term of confinement in the New Jersey State Prison at Rahway after a jury conviction in Union County Court on August 18, 1965 for robbery in violation of N.J. Stat. Ann. § 2A:141-1 (1969). Petitioner's conviction was affirmed by the Appellate Division of the Superior Court on January 23, 1967; State v. McLaughlin, 93 N.J. Super. 435, 226 A. 2d 47. The Supreme Court of New Jersey denied certification on June 30, 1967. [ See petition for writ of habeas corpus, § 9].

 Petitioner claims, as he did in the state proceedings, that the trial court committed error in not granting a mistrial when counsel for his co-defendant commented in summation on petitioner's failure to testify. He further contends that this error was not rectified by an instruction to the jury, given immediately upon making of the comment, to disregard it [R-2:(142a)], *fn1" nor by the further instruction in the general charge that petitioner was under no obligation to testify (citing N.J. Stat. Ann. § 2A: 84A-17(1) (Supp. 1970); [R-2:(142a)].

 
The Defendant McLaughlin did not take the stand. This was quite obvious. As a matter of fact, if you didn't get what it was, I said to the Judge at the end of the State's case, "The Defendant McLaughlin rests." That meant that the Defendant McLaughlin's case as far as he was concerned by way of defense had stopped at that point.
 
Remember the laws of which I speak were not made for James McLaughlin. These laws were made for every defendant who comes before our courts. These laws were made for you and me if, God forbid, anybody is ever involved in anything. Under our law every defendant has a right to take the stand if he so chooses. He cannot be made to take the stand against himself. Under our law he has the right to take the stand or not to take the stand if he so chooses. It is the presumption of innocence. So that under our law when you are a defendant in a criminal case if in your mind the State has not proven the case and a decision has been made by the defendant and his lawyer, no defendant must take the stand and testify because the reason we're here is it is the State's burden to prove beyond a reasonable doubt the guilt of the defendant, not the burden of the defendant to prove his innocence. * * *

 Only thereafter did counsel for McNair, petitioner's co-defendant, state [R-2: (109a-110a)]:

 
It comes down to one point: Intent. Was [McNair] in that car for the purpose of snatching the pocketbook? * * * This is the crux of the case because if Harold McNair is telling the truth in relation to how Oswald McLaughlin came into his house and said what he did say, he said, "Let's go for a ride," and took him for a ride and then this thing occurred, why didn't McLaughlin get up and deny that?
 
MR. MUSCATELLO [Petitioner's counsel]: I am sorry. At this time I ask for a mistrial.
 
THE COURT: That is not a proper comment, Mr. Bercik. Strike it. The Court will instruct you, ladies and gentlemen of the jury, that every defendant has a right in any case in which he is accused not to appear as a witness and not to testify. This comment the Court has ruled improper. You are instructed to disregard it. Do not employ it in any respect in the course of your deliberations.
 
MR. BERCIK [co-defendant's counsel]: I apologize, your Honor.

 Later, in the general charge, the Court instructed the jury as follows [R-2: (142a)]:

 
The defendant, James Oswald McLaughlin, has requested me to charge, and I do instruct you, that one of our statutes which is New Jersey Statute 2A:84A-17(1). (sic) It reads as follows: "Every person has in any criminal action in which he is an ...

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