With no explanation, chose the best option from "A", "B", "C" or "D". 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

A: holding references to a defendants lack of remorse violate the fifth eighth and fourteenth amendments
B: holding that the statement ill take the fifth was an assertion of the fifth amendment privilege
C: recognizing that the first amendment encompasses criticism of government officials
D: holding that criticism of the defendants failure to express remorse penalized his assertion of fifth amendment rights
D.