Burns: No error in failing to give "no adverse inference from silence" instruction

In Burns v. Sec., Fla. Dep’t of Corrections, No. 11-14148 (July 8, 2013), the Court affirmed the denial of habeas relief to a Florida death row inmate sentenced to death for a 1997 murder. The Court rejected the argument that it was “structural error” for the Florida sentencing court to decline to instruct the jury, at the penalty phase, that it should draw no adverse inference from the defendant’s failure to testify. The Court pointed out that the Supreme Court has yet to reach the issue whether the failure to give a “no adverse instruction” is structural error. The Court also rejected the argument that the failure to give a “no adverse inference” instruction was not harmless. The Court pointed out that the state never commented on Burns’ failure to testify. Further, the prosecutor’s questions about the defendant’s lack of remorse were legitimate responses to the defendant’s evidence which attempted to show he was remorseful.