A man serving 33½ years to life for second-degree murder and a weapons charge was granted a retrial yesterday by an appeals court that determined that miscues by both the prosecutor and the defense cost the defendant a fair trial. A unanimous panel of the Appellate Division, Second Department, ruled in People v. McArthur, 2009-06796, that its interest-of-justice review of comments made during summation by the prosecutor in James McArthur’s 2009 trial in Suffolk County Court contained inappropriate suggestions that McArthur’s silence when questioned by police reflected his guilt. The panel said in its unsigned ruling that McArthur had a constitutional right to remain silent at the time of his arrest and that the exercise of that right cannot be used against him by the prosecution as part of its direct case.

Among the improper remarks cited by the appeals judge—and unchallenged by the defense—was the prosecutor’s observation to jurors that McArthur appeared to be “disappointed” when he was arrested and “distracted’ when he was being transported to the police station. The prosecutor called his demeanor “the reaction of a guilty man who knows he’s been caught.”

McArthur’s trial attorney, meanwhile, deprived the defendant of effective assistance of counsel when he opened the door to the prosecution to elicit testimony on redirect that McArthur had pleaded guilty to third-degree assault in connection with a shooting that occurred  just before the slaying at issue in the trial. Revealing that “highly prejudicial” information “improperly suggested to the jury that the defendant had a propensity for gun violence and had shot someone else within two hours of the subject shooting,” said the panel of Justices Peter Skelos (See Profile), Ruth Balkin (See Profile), Thomas Dickerson (See Profile) and Sylvia Hinds-Radix (See Profile).