Carlos Garza DE LUNA, Appellant, v. UNITED STATES of America, Appellee

BELL, Circuit Judge

(dissenting).

I respectfully dissent. I would grant the petition for rehearing for the reasons stated in my special concurring original opinion.

PER CURIAM.

In studying this case we were well aware of the procedural difficulties inherent in our decision. We could not overlook them: the concurring opinion brings out clearly the basic difficulties, including the possibility of a conspiracy of co-defendants to promote a mistrial by having one of them comment upon the failure of another co-defendant to testify. The co-defendant’s right to comment is not tangential but is an essential, if complicating, element in the problem. We weighed these considerations against an accused’s Fifth Amendment right not to testify and his right to be free of comments on the exercise of his constitutional right to silence. We concluded that in criminal trials a fair interpretation of the Constitution prohibits ail reference to an accused’s failure to testify.

The overriding consideration in all criminal cases is measured justice according to the Constitution. The inconvenience of a severance and the possibility of a mistrial if there should be a joint trial of co-defendants do not tip the scales for the Government when an accused’s right to silence is in the balance.

The rehearing is denied.