I think that Justice King is on target here. Both as regards the fact that the prosecutor erred as well as to the fact that the error was harmless.
I'll just add one thought. Something that Justice King might perhaps be thinking, but doesn't actually say.
Here's the thought:
Mellow out. Don't cross the line for no reason.
In this case, as in many others, the defendant has been caught dead to rights. The police catch him in a fenced-in, barbed-wire-topped Southern California Edison yard at 3:00 a.m. They've got video of the guy stealing stuff in the yard. They've got the ladder he propped up against the wall to climb in. They catch his accomplice in a car a block away with a notebook entitled "Cash" and a list of SCE yards from which to steal. The accomplice is holding a walkie-talkie that exactly matches the one that the defendant's caught with in the yard. Defendant's got absolutely no excuse or way to explain what he's doing in the yard at 3:00 a.m. other than stealing stuff.
In short, it's a laydown. Defendant's going to be convicted. As in the vast, vast, vast majority of criminal cases that go to trial.
When you're a prosecutor, and you've got one of these, of course you should nonetheless prepare. Get your witnesses in order. Make a good opening argument. Present your evidence cleanly and distinctly.
There's no need to get fancier than this. There's no need to carefully craft a closing argument that makes sure to comment on defendant's exercise of his Fifth Amendment right not to testify. There's no need to draw a lengthy parallel between how defendant was hiding in the yard and how he's now allegedly "hiding" in court. There's no need to repeatedly tell the jury that the defendant's just hoping that you're "gullible enough" to acquit him and that he's trying to "hoodwink" you so that he can "go home and have a good laugh at your expense."
Seriously. Just summarize the evidence, thank the jury for its service, and sit down. You'll get what's coming. Without having the trial court and/or the Court of Appeal refer to prosecutorial ethics and the duty of a prosecutor to strike hard blows but not foul ones.
Or potentially getting the conviction reversed on appeal.
Sometimes the right thing to do is to not try so hard. Or push the envelope.
Particularly when you're going to win anyway. Because, yes, Virginia, the evidence is indeed crystal clear beyond a reasonable doubt.
