Alabama v. Powell

1 Cite as: 608 U. S. ____ (2026)
A
LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
ALABAMA v. MICHAEL ANTHONY POWELL
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
CRIMINAL APPEALS OF ALABAMA
No. 25–848. Decided June 15, 2026
The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari is
denied.
J
USTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting from the denial of certiorari.
A prosecutor in this capital case made a statement in
closing argument that the trial judge interpreted as a com-
ment on properly admitted evidence. On appeal, however,
the Alabama Court of Criminal Appeals interpreted the
statement as a comment on the defendant’s failure to take
the stand, and on that basis it reversed the defendant’s con-
viction. The State asks us to summarily reverse the deci-
sion below based on United States v. Robinson, 485 U. S. 25
(1988), which found no violation of the Fifth Amendment
right against compulsory self-incrimination in a case with
very similar facts. The State is right: The decision below
contravenes Robinson, and this Court should summarily re-
verse it.
I
Michael Powell was convicted of first-degree murder and
sentenced to death for shooting a gas station attendant dur-
ing a robbery. The State connected Powell to the murder
through security-camera footage and eyewitness testimony.
Nearby security cameras provided footage of a man walking
to the gas station from an apartment building just before
the robbery and murder and then returning quickly to the
apartment building. When the police released photos of the
suspect, two employees at the apartment building identi-

2 ALABAMA v. POWELL
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LITO, J., dissenting
fied Powell as the person of interest. Separately, a driver
who saw the suspect running away from the gas station
picked Powell out of a photographic lineup. Although the
State never found the murder weapon, it discovered a box
of ammunition at Powell’s girlfriend’s house that matched
a shell casing from the scene of the murder.
Faced with this evidence, Powell concocted a far-fetched
scheme to point the finger at someone else. While in pre-
trial detention, Powell hired a fellow inmate, David Jack-
son, to write a letter confessing to the crime. Powell told
Jackson that another detainee wanted to confess but could
not write the letter himself. Powell therefore instructed
Jackson to leave a blank where this person’s name would
later be inserted. Jackson complied, but Powell then in-
serted Jackson’s name in the blank space. The letter pur-
ported to exonerate Powell but stated that Powell knew
where to find the murder weapon.
In his closing argument at trial, Powell’s counsel pointed
out that the State never uncovered the murder weapon. So
in rebuttal, the prosecutor told the jury, “‘[y]ou know there
is only one person in this room who knows where the gun
is. One person, he is sitting over there. That guy knows
where the gun is.’” No. CR–20–727 (Ala. Ct. Crim. App.,
May 3, 2024), App. to Pet. for Cert. 12a (App.). Defense
counsel objected on the ground that the prosecutor had im-
permissibly commented on his client’s decision not to tes-
tify. Outside the presence of the jury, the prosecutor ex-
plained that he had referred only to the false confession
letter, not to Powell’s silence. Id., at 12a–13a (“‘The David
Jackson letter says that David Jackson told him where the
gun is’”). The trial court accepted that explanation “‘de-
pending on what comes next of course.’” Id., at 13a. Then,
back in the presence of the jury, the prosecutor said
“ ‘[t]here is one man in this courtroom who knows where
that gun is, one man and he is sitting right over there next
to that jury box. You remember that letter from David

3 Cite as: 608 U. S. ____ (2026)
A
LITO, J., dissenting
Jackson?’” Ibid. (emphasis deleted). Defense counsel once
again objected, and the trial court overruled the objection.
The Alabama Court of Criminal Appeals reversed be-
cause, in its view, the prosecutor had impermissibly com-
mented on the defendant’s silence. In its discussion, the
Alabama Court cited both the United States and Alabama
Constitutions. Id., at 16a. It also cited both Alabama and
federal case law. Id., at 16a–21a. Ultimately, the court
concluded that the “State’s direct comment on Powell’s
right not to testify requires this Court to reverse” because
this “type of comment . . . is forbidden under the Constitu-
tion.” Id., at 24a. The court did not specify which Consti-
tution it meant.
II
The Fifth Amendment protects a criminal defendant from
being “compelled in any criminal case to be a witness
against himself.” In Griffin v. California, 380 U. S. 609
(1965), we held that a prosecutor’s comment on a defend-
ant’s failure to testify can violate the Fifth Amendment
privilege against self-incrimination. Then, in Robinson,
this Court clarified the narrow scope of Griffin’s rule. We
explained that “[w]here the prosecutor on his own initiative
asks the jury to draw an adverse inference from a defend-
ant’s silence, Griffin holds that the privilege against com-
pulsory self-incrimination is violated.” Robinson, 485 U. S.,
at 32. But when the “prosecutor’s reference to the defend-
ant’s opportunity to testify is a fair response to a claim
made by defendant or his counsel, we think there is no vio-
lation of the privilege.” Ibid.
In this case, the Alabama Court of Criminal Appeals
charted a different course. Even though the trial court in-
terpreted the prosecutor’s statement as a reference to the
false confession letter, App. 12a–13a, the appellate court in-
terpreted the statement as a “direct comment on Powell’s
right not to testify.” Id., at 24a. This holding ignores Rob-

4 ALABAMA v. POWELL
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LITO, J., dissenting
inson’s instruction that an appellate court may not “substi-
tute its reading of ambiguous language for that of the trial
court and counsel.” 485 U. S., at 31. Likewise, the Alabama
Court of Criminal Appeals held that the “State’s direct com-
ment on Powell’s right not to testify requires this Court to
reverse.” App. 24a. Yet Robinson rejected the “view that
any ‘direct’ reference by the prosecutor to the failure of the
defendant to testify violates the Fifth Amendment.” 485
U. S., at 31. Because the Alabama Court of Criminal Ap-
peals’ decision contradicted Robinson, I would grant certio-
rari and summarily reverse.
Respondent defends the judgment below as resting on Al-
abama law. But the Alabama Court of Criminal Appeals
cited the United States and Alabama Constitutions along-
side federal and state case law. App. 16a–21a. The decision
below never suggested that the “federal cases [we]re being
used only for the purpose of guidance” or that they did “not
themselves compel the result that the court . . . reached.”
Michigan v. Long, 463 U. S. 1032, 1041 (1983). In such sit-
uations, where federal and state law are “‘interwoven,’” we
“ ‘accept as the most reasonable explanation that the state
court decided the case the way it did because it believed
that federal law required it to do so.’” Florida v. Powell,
559 U. S. 50, 56–57 (2010) (quoting Long, 463 U. S., at
1040–1041). I would follow that presumption here and
summarily reverse the decision below because it contradicts
our Fifth Amendment precedent.
If there were any lingering doubt about the basis for the
judgment below, we could remand for the Alabama Court to
clarify whether its decision rested on federal or state law.
See, e.g., Capital Cities Media, Inc. v. Toole, 466 U. S. 378
(1984) (per curiam). But this Court does not take even that
minimal step. Thus, I respectfully dissent from the denial
of certiorari.