The attorney for a former Missouri sheriff’s deputy and correctional officer sentenced to death for a double killing told Missouri Supreme Court judges during Wednesday arguments that his client should get a new trial because prosecutors bungled the case.

Public defender Craig Johnston said that during Marvin Rice’s trial for the 2011 killing of his ex-girlfriend and her boyfriend, prosecutors repeatedly drew the jury’s attention to the fact that he didn’t testify.

Johnston said that violated Rice’s right against self-incrimination and said he deserves a new trial.

“Every time you turn around this experienced death penalty litigator is telling the jury this guy didn’t testify,” Johnston said in court.

Rice was convicted of the slaying of Annette Durham and her boyfriend, Steven Strotkamp, over a child custody dispute. A judge in 2017 sentenced to Rice to death in for Durham’s killing and to life in prison over Strotkamp’s death.

At issue are multiple comments prosecutors made during Rice’s trial about how he would have answered questions if he had testified.

“If he had been asked those questions he would have told us not only does he believe in the death penalty, he’s willing to carry it out without the need for attorneys, judges, trial or jurors,” Assistant Attorney General Kevin Zoellner said during the penalty phase of Rice’s trial, according to court documents.

Assistant Attorney General Nathan Aquino on Wednesday argued that prosecutors didn’t comment directly on Rice’s failure to testify.

But judges appeared skeptical. Judge Laura Denvir Stith said prosecutors could have made their point without referring to Rice’s silence. Judge Paul Wilson said instead, the prosecutor used “this weird roundabout reference” that points out that Rice didn’t speak, and “that’s what the Constitution prohibits.”

Supreme Court judges focused less on Johnston’s broader argument that Rice was unconstitutionally sentenced to death by a judge and not a jury and therefore should get life in prison instead of execution.

A jury convicted Rice of first-degree murder for Durham’s death and second-degree murder for Strotkamp’s. But the jury couldn’t decide whether Rice should be put to death, leaving it to the judge.

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