John Allen Minor v. Harold E. Black, Superintendent

JOHN W. PECK, Circuit Judge.

Petitioner-appellant, testifying at his state court trial on armed robbery and murder charges, asserted the alibi that he was home asleep. On cross-examination, the prosecutor elicited without objection from petitioner his failure, when arrested, to tell the police of his alibi, petitioner explaining his post-arrest silence as being “[o]n the advice of [his] attorney.” 1 In his closing argument to the jury, the prosecutor, also without defense objection, emphasized:

“[H]ere’s something that I do not understand and I’ve been at this game a long time. If you are…