Joseph Bontempo v. Peter Fenton, Warden, Rahway State Penitentiary, and James R. Zazzali, Attorney General of the State of New Jersey

OPINION OF THE COURT

WEIS, Circuit Judge.

A state trial judge took the unusual step of permitting a defendant who had not testified to deliver a summation to the jury in addition to that made by his counsel. On rebuttal, the prosecution pointed out the defendant’s failure to discuss crucial elements of the case. In this habeas corpus proceeding, the district court found that the prosecution’s rebuttal included comment on the defendant’s failure to take the stand. The court also held that, in choosing to make his own summation, the defendant did not effectively waive his right to counsel. On…