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In a case of first impression, the Massachusetts Appeals Court has ruled that the constitutional protection against prejudicial comments extends to statements made by a codefendant’s counsel. In the case, Commonwealth v. Russo, the court refused to reverse the defendant’s conviction, however, because the statements made by counsel for the codefendant were not so prejudicial as to overwhelm the curative effect of the trial judge’s proper instructions to the jury. The case concerned the arrest of two men, Salvatore Russo and James Ciampi, who were leasing an apartment in which police found cocaine and other drug paraphernalia. At the time of their arrest, Russo exercised his right to remain silent, while Ciampi choose to speak with the police about his relationship to the apartment and the confiscated drugs. During their mutual trial, Russo’s attorney, Joseph J Balliro Sr. of Boston, declined to make an opening statement, while Joseph Machera of Revere, Mass., Ciampi’s attorney, choose to offer opening remarks. “You will hear from my client,” Machera said in his opening statement. “My client will take the stand, as he did that time with the police officer, and he spoke. He didn’t hide. When the police officer said, ‘you have a right to remain silent,’ he spoke to him; and he’s going to speak to you today.” In his closing arguments, Machera again addressed his client’s conduct at the time of arrest: “He didn’t say he wasn’t going to talk to [the police]. He didn’t say he was going to take his Fifth Amendment rights. He talked.” On appeal, Russo’s new attorney, Marielise Kelly, of the Boston firm Gargiulo, Rudnick & Gargiulo, argued Machera’s statements constituted an impermissible comment on Russo’s failure to take the stand, which she claimed meant his right to silence under the Fifth Amendment was violated. Acknowledging “no Massachusetts appellate decision has addressed whether the constitutional protection afforded in cases involving comments by judges and prosecutors extends to statements made by counsel for a codefendant,” the Appeals Court first ruled it indeed was possible for a codefendant’s counsel to prejudice proceedings. Noting that “the policy at work” in disallowing comments on a defendant’s silence is “the privilege against self-incrimination,” the court found that “the focus of review should be on whether a defendant has been prejudiced in his exercise of that privilege by direct or implicit comment on his failure to speak or testify and not upon the identity of the commentator.” As a result, the court decided that, even though jurors may not perceive the counsel for a codefendant as retaining the same authority as a judge or prosecutor, there is “no reason to withhold from a defendant protection for statements by a codefendant’s counsel.” Having found that “the identity of the person making the comment is not material,” the court applied to Machera’s statements the same analytical inquiry used in traditional claims of this sort, as determined in Commonwealth v. Goulet: “whether the comments ‘can be fairly understood as permitting the jury to draw an inference adverse to the defendant from the fact of his failure to testify.’” In denying Russo’s request for a reversal, the court said Machera did not directly contrast his client’s eagerness to cooperate with Russo’s pretrial and trial silence. Additionally, Appeals Court Judge George Jacobs, who authored the opinion, wrote that defendants did not construct arguments “which tended to blame the other or which otherwise were antagonistic.” Taking in to account the failure of Russo’s “experienced counsel” to voice objections during the trial, Judge Jacobs wrote that “to the extent the isolated comments could be construed as oblique and implicit references to Russo’s silence, they were not so prejudicial as to withstand the curative effect of proper judicial instruction.” The court found that Superior Court Judge Barbara J. Rouse offered ample instruction to the jury. Before the trial, Judge Rouse said that defendants “have no responsibility to put on any evidence, to testify [or] to make an opening statement.” Then, in her final instructions, the judge further explained that the jury could not “in any way draw any inference which is adverse to defendant Russo from the fact that he did not testify.” Considering these factors, the court ultimately decided that, although the comments of a codefendant’s counsel can prejudice a jury, in this particular case, “even if we treat the comments as improper … there was no substantial risk that his convictions constituted a miscarriage of justice,” the opinion says.

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