In Griffin v. California, the Supreme Court held that it was unconstitutional for a prosecutor to argue that since the defendant did not testify, the jury should infer that he had something to hide. It is per se prosecutorial misconduct for a prosecutor to ask a jury to draw adverse inferences against a defendant who exercises his constitutional right to remain silent at trial.
Yet fifty years later, Assistant County Prosecutor Lawrence Floyd, in clear violation of Griffin's black-letter rule, urged a jury in a death-penalty case to infer the defendant's guilt because he did not testify. The judge immediately ordered a mistrial. The judge also fined the prosecutor's office - but not Floyd himself. This was an entirely weak sanction.
As Kip noted, Lawrence Floyd should have been ordered to personally pay the fine. But that is not enough. Floyd should be suspended from the practice of law.
The Griffin rule is crystal clear, and known by every prosecutor in the country. Lawrence Floyd deliberately violated this rule, seeming because he was doing poorly at trial and thus wanted a "do-over." Floyd's motivations for violating the law aren't at issue. What is at issue is that he knowingly violated the law. He should be punished. Will the State Bar do so?
Will the National District Attorneys' Association call for Floyd to face professional discipline? In it's "We'd better distance ourselves from Mike Nifong statement," NADA proclaimed:
The confidence of the public and the very integrity of the criminal justice process depend on strict compliance with these ethical standards. To the extent that any individual prosecutor violates these high ethical standards the public confidence in our criminal justice system is undermined and the image of all prosecutors suffers.
Here, Floyd violated clear ethical standards. These standards are so clear that even the most unhinged prosecutor could not defend Floyd's conduct. There is, in a word, no room for debate.
What will NDAA do? If NDAA does nothing, can we infer that its members are not truly concerned with professional ethics, but rather issued a statement denouncing Nifong simply because, in doing so, they hoped to avoid any meaningful regulation of prosecutors? If NDAA does nothing, can we infer from its silence that it does not truly care about prosecutorial ethics?