United States of America Ex Rel. Esaw Mitchell, 42060 v. Warren Pinto, Superintendent, New Jersey State Prison Farm, Rahway, New Jersey

OPINION OF THE COURT

HASTIE, Chief Judge.

The district court denied relief to the appellant, a state prisoner serving a sentence under a New Jersey rape conviction, who sought a writ of habeas corpus on the ground that at his trial his failure to testify had been used against him in violation of his privilege against self-incrimination. Both the prosecutor and the trial judge had told the jury that the failure of the accused to testify might be used as evidence against him.

In 1965, the Supreme Court held that “the Fifth Amendment * * * forbids either comment by the prosecution on the accused’s…