In a striking ruling that could deter nearly all in-trial prosecution references to a defendant choosing not to talk to police, the Wyoming Supreme Court decided Thursday to defend people’s right to remain silent under a more vigilant standard than it has in recent years.
The Thursday unanimous majority opinion by Wyoming Supreme Court Justice Kari Gray also reverses the conviction of a Casper man who was accused of sexually touching preschool age girls, and who has been serving a 14- to 20-year prison sentence following his January 2024 conviction.
William Frederick Patterson, 30, now may go to trial again or pursue a plea agreement in Natrona County District Court, because his case prosecutor violated his right to remain silent at his trial and the judge did not declare a mistrial, the ruling says.
The ruling also changes the way Wyoming courts are to look at prosecutors’ comments about defendants who won’t talk to police or testify against themselves in other ways.
Both the U.S. and Wyoming constitutions promise the right of a criminal defendant not to testify against himself, or to remain silent.
When prosecutors or others refer to a defendant’s decision not to speak about accusations against him, Wyoming courts of the past have been told to decide whether the prosecutor’s statement was an “improper comment” or merely a “reference.”
If a court found a prosecutor’s remarks landed in the less-severe category of passing “references,” then the court should only declare a mistrial if that reference changed the outcome of the case: if the jury would have been less likely to convict the accused without it.
The Wyoming Supreme Court obliterated the “reference” category with its Thursday ruling.
All prosecutor remarks about a defendant’s unwillingness to speak about accusations against him are now subject to a tougher test.
Judges should find those remarks to be “improper comment” — violations of rights that would void a trial — if the prosecutor spoke of the defendant’s silence to advance her own case, or to make the defendant look guilty, the ruling says.
No longer do courts need to look at whether such a violation of rights would have swayed the outcome of a trial, Gray wrote.
Look Very Closely At That, Though
If Thursday’s ruling is an indication, it won’t take a fire-and-brimstone condemnation to get the Wyoming Supreme Court to find a prosecutor’s mention of a defendant’s silence unconstitutional.
The prosecutor in Patterson’s case told the jury during her January 2024 opening statements that Patterson would not talk to the case detective in 2019, after the little girls he was supposed to be babysitting told their parents he’d made them engage in sexual touching.
“I will let you know a request to Mr. Patterson to discuss things was made,” the prosecutor told the jury. “He declined, which is his right to do so.”
Patterson’s defense attorney immediately objected and asked the court to declare a mistrial, a request that would have voided that trial and let Patterson start over with a new jury.
Instead, the Natrona County District Court judge sustained the objection and told the jury not to infer any guilt from the prosecutor’s remark.
The judge ruled that the prosecutor hadn’t violated Patterson’s rights, because the statement was brief, the court tried to correct its effect, and the prosecutor wasn’t using it as a condemnation, but as a statement about how thorough the detective’s investigation had been.
That judge was struggling with “tension in our case law” from years of conflicting decisions on how protective courts should be of one’s right to remain silence, Gray wrote.
“We have corrected (that tension),” she added, referring to Thursday’s ruling.
The Wyoming Supreme Court disagreed with the presiding case judge that the prosecutor wasn’t trying to make Patterson look guilty, however. The high court shouldn’t try to read the prosecutor’s mind, Gray wrote, but the prosecutor’s remark looked like a condemnation when taken in context.
“The error could not be cured” even though the court tried, the justice wrote. “We reverse Mr. Patterson’s conviction and remand to the district court for a new trial.”
Just Stay Away
The two prosecutors who worked that case have moved on to other jobs and are no longer with the local prosecutor’s office, Natrona County District Attorney Dan Itzen told Cowboy State Daily on Friday.
As for whether the case is a game-changer, Itzen said it sets a clear don’t-venture zone for prosecutors.
“I think (the constitutionality of mentioning silence) is a real fine line and probably the best course of action is to stay away from that type of questioning,” said Itzen. “And you know — don’t even go down that road. That’s where they made their mistake: they were trying to present a complete picture to the jury, where they probably should have just stayed away from that comment and continued with their opening.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
