The State of Washington, Respondent v. Kermit A. Belgarde, Petitioner

Summary

The Washington Supreme Court reversed Belgarde's convictions for first degree murder and attempted first degree murder because the prosecutor's closing-argument remarks about the American Indian Movement were flagrant, ill-intentioned appeals to passion and prejudice that no curative instruction could have cured, despite defense counsel's failure to object. The court also held that the prosecutor's comments on Belgarde's post-arrest silence violated due process under Doyle v. Ohio, though it declined to decide whether that error was harmless because reversal was already required. Justice Callow, joined by Justice Durham, concurred that both forms of misconduct were improper but dissented from reversal, arguing the court should have applied the overwhelming untainted evidence test and that defense counsel's silence should not be rewarded.