Eberhardt V. Bordenkircher

The principal issue in this appeal is how the harmless error standard is to be applied in habeas corpus review of state court convictions, when the error involved was a comment by the prosecutor on the defendant's failure to take the stand, in violation of the rule laid down in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). In 1975, petitioner George Eberhardt was found guilty by a Kentucky jury of one count of armed robbery. On appeal, the Kentucky Supreme Court affirmed his conviction, relying primarily on a harmless error analysis. The court held that there had been prosecutorial misconduct in the course of the trial, and that the introduction of a "mug shot" of the defendant into evidence without a cautionary instruction was error, but that "in view of the strong evidence indicating appellant's guilt and the imposition of the minimum sentence," the errors were not prejudicial. The Kentucky Supreme Court went on to hold that it was not clear from the record whether the prosecutor, in his closing argument, had made remarks which were "reasonably certain to direct the jury's attention to the defendant's failure to testify," but that even if he had, any error was "nonprejudicial."