cry out for forgiveness, cry out for pity? He did not. Never heard any in the statements.” Beardslee argues that by calling attention to his failure to express remorse, the prosecutor implicitly criticized his decision not to testify at the penalty phase. In addition, the prosecutor’s comments referred to statements from the Rutherford preliminary hearing, at which Beardslee was a witness, and to the guilt phase, at which Beardslee denied willing participation in the killings. Neither occasion presented a logical opportunity to beg for mercy, Beardslee implies, so the only possible way he could show such remorse would be to testify before the penalty phase jury, something he is not obligated to do under the Fifth Amendment. Beard-slee again relies heavily on Lesko, 925 F,2d at 1544-45 (<HOLDING>). The State, in contrast, frames the issue as
holding references to a defendants lack of remorse violate the fifth eighth and fourteenth amendments holding that the statement ill take the fifth was an assertion of the fifth amendment privilege recognizing that the first amendment encompasses criticism of government officials holding that criticism of the defendants failure to express remorse penalized his assertion of fifth amendment rights holding the states reference to the defendants lack of remorse was error because it was a comment on the defendants assertion of his constitutional rights to plead not guilty and require the state to carry its burden of proof