William Anthony Brooks v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

Circuits, Miller, v. § United States Seventh 3143(b) months after 18 U.S.C.A. Cir.1985); (3d F.2d United enacted. Molt, 1198, 1200-1201 758 F.2d v. States The decision of the district court apply Cir.1985), (7th single-judge order the Bail Reform Act of 1984 is AF- Circuit, States v. Crab- in the Fifth United FIRMED, and Weitzsacker’s and Jezow- (5th Cir.1985). tree, The F.2d 1200 applications ski’s for release are DENIED. placed pri which defendants decision on reliance, v. Cirrin mary United States (N.D.Ill.1985),

cione, F.Supp. 1436 by v.

expressly overruled United States

Molt, at 1200. 758 F.2d why

There is no reason this Court not follow the decisions these should Anthony BROOKS, William change in standards other circuits. Petitioner-Appellant, ap availability pending of bail governing procedural, and not an increase in peal is prohibited by post the ex facto punishment Ralph KEMP, Warden, Georgia 1201; Miller, Molt, 758 F.2d at clause. Diagnostic and Classification 3143(b) applica 21. is thus F.2d at Section Center, Respondent-Appellee. as Weitzsacker and ble to defendants such convictions, Jezowski, trials, sen whose No. 83-8028. appeals all after the tencings and occurred United States Court of Appeals, of the Bail October 1984 enactment Eleventh Circuit. Act, though even the crimes Reform charged were committed before that date. May 1985. argue such Defendants a rul As Amended on Denial of Rehearing ing contravenes this Circuit’s decision July 1985. Fernandez-Toledo, United States Opinion on Rehearing (11th Cir.1985). In the course of F.2d 703 July 1985. appeal dismissing the Government’s from detainees, pretrial granting of bail the Fernandez-Toledo Court noted: manifestly unjust apply

It would be appellees

the new substantive law to the

because were entitled to be released

and their release was ordered court before the new law

district became

effective and before this case was heard panel. rights Their to bail had vested, i.e.,

already anwas antecedent

right existing change before

law.

749 F.2d defendants however, had been released on bail existing district court under the law the Bail

before Reform Act of 1984became

effective. Weitzsacker’s and Jezowski’s

“right” pending appeal to bail did not ac-

crue until after their convictions. The cur- applicable

rent law at that time would be “right.” applications Their for release

pending appeal than five came more Kendall,

Stephen Bright, George H. B. Atlanta, Ga., petitioner-appellant. Atlanta, Ga., Westmoreland, Mary Beth respondent-appellee. GODBOLD, Judge, Before Chief RO TJOFLAT, HILL, FAY, VANCE, NEY, HENDERSON, KRAVITCH, JOHNSON, CLARK, HATCHETT, ANDERSON Judges.* Circuit * following Judges join Judges join disposi- in Part II of Section All of the Court concluding Judge opinion One of Anderson’s tion of the six referred to in the Introduc- issues is not harmless: God- Court, that the Sandstrom error bold, Judge opinion tion to Anderson’s for the Roney, Tjoflat, Judge, Judges Chief reinstating panel opinion respect Hatchett, Hill, Vance, Johnson, Anderson and those six issues. separate Judge has also written a Clark. Hill Judges join All of I of of the Court in Part Judge has Kravitch concurrence this issue. Judge opinion Section One of Anderson's con- issue, joined dissenting opinion on this filed cluding that there is a Sandstrom violation. by Judges Fay and Henderson. Judge separately Hill has also written on this following Judges join in Section Two of issue. concluding opinion, Judge Anderson’s ,R. III, ANDERSON, issues, Circuit IV, VI, VII, LANIER six we reinstate Parts VIII, X panel opinion. and XI of the Judge:

Brooks was convicted of armed robbery, rape, kidnapping, and INTRODUCTION murder a Musco- gee County, Georgia, jury. .The evidence principally en banc This case taken established that Brooks-abducted Carol Je- to consider two of the several constitution Galloway home, annine from her forced her by appellant al claims asserted William against away her will to drive with him in opinion, In Brooks. Section One of yellow automobile, her Fiat took her to a the claim that the instructions on discuss secluded raped area and her. All this was improperly malice at Brooks’ trial shifted established Brooks’ own written confes- proof in the burden of violation of Sand sion, and was independent corroborated Montana, strom confession, evidence. In his Brooks also We conclude that, stated after the sexual intercourse violation, that there was a Sandstrom Galloway and after put had her clothes beyond that the error was not harmless on, back she screaming, started and at that reasonable doubt. Two of this Section point pistol he aimed his at her to make her opinion, we claim that discuss Brooks’ stop screaming, pistol and that the went prosecutor’s argument during the sentenc hit off and her. Brooks point, fled at that ing phase of his trial rendered the Galloway bled to death. Additional sentencing phase fundamentally unfair. facts relevant to the two issues discussed reject regard, We Brooks’ in this opinion this will be set out later as sentencing phase and conclude that his was appropriate. fundamentally unfair. Brooks was sentenced to death on the addition to two issues which this charge, imprisonment murder to life on the discuss, opinion will Brooks asserted six kidnapping rape and charges, and to 20 (1) other constitutional claims: years imprisonment on the robbery armed grant change failure to of venue was charge. (2) improper; of non- introduction statutory aggravating circumstances dur- All convictions and sentences were af- ing sentencing phase the trial Georgia Supreme firmed Court on (3) State, impermissible; court re- appeal. that the trial direct v. 244 Brooks Ga. 574, mitigating (1979). stricted the admission of testi- 261 S.E.2d 379 writ of On (4) mony; that the trial Supreme court’s instructions certiorari to the United States aggravating Court, on circumstances were im- the Court vacated the decision of the (5) proper; jurors improperly Georgia Supreme upheld were ex- Court insofar as it opposition cluded because of to the death Brooks’ death sentence and remanded the (6) penalty; light that the district court’s case for further consideration in evidentiary hearing 420, denial of an incor- Godfrey Georgia, v. 446 U.S. 100 S.Ct. 1759, panel grant (1980). rect. The declined to relief on 64 L.Ed.2d 398 Brooks v. 961, 2937, of these six Georgia, issues. Brooks v. Fran- 446 U.S. 100 S.Ct. 64 cis, (11th Cir.1983), (1980). remand, 716 F.2d 780 vacated L.Ed.2d 821 On the Su- banc, (11th reh’g preme en Georgia 728 F.2d 1358 Court of reaffirmed the sen- for Cir.1984). respect State, With to each these tence of death. Brooks 246 v. Ga. prosecutorial improper prosecutori- did not render the sen- 1. Brooks also claims that Godbold, tencing phase fundamentally argument during guilt unfair: phase al of his trial Hill, Judge, Judges Roney, Tjoflat, Chief phase fundamentally rendered that panel rejected unfair. The Vance, Henderson, Fay, Hatchett and Anderson. respect Brooks’ Judge dissenting opinion Johnson has filed on guilt phase; agree judg- with both the issue, joined by Judges Kravitch and Clark. reasoning panel regard. ment and in this Judge dissenting opinion Clark has filed a issue, joined by Judges Kravitch and John- son.

1388 denied, capable proof. Malice (1980), circumstances cert. 451 262, 172 271 S.E.2d says, when no implied, law 2000, shall 921, L.Ed.2d 312 68 101 S.Ct. U.S. provocation appears, considerable denied, 452 U.S. reh’g petition for (1981), killing where all the circumstances of (1981). 3069, 932, 69 L.Ed.2d 101 S.Ct. malignant heart. abandoned show collateral was denied sought and Brooks gentlemen, pre- law, courts, ladies and and the Su Georgia relief every homicide to be malicious sumes certiorari. again denied preme Court appears contrary circum- until the from Zant, 103 S.Ct. Brooks v. 459 U.S. excuse, alleviation, justifi- stances of (1982), petition reh’g for upon the cation, and it is encumbent denied, circumstanc- accused to make out such L.Ed.2d 627 they appear unless es your satisfaction petition the instant Brooks then filed produced against him. from the evidence in the United States corpus relief habeas added).3 instruction, (Emphasis This which District of for the Middle District Court the initial bur- placed upon the defendant denied relief. Georgia. The district court malice, virtually identi- disproving den of granted appeal, panel of this court On impermissible in the the one found cal to involving prose- only on the issue relief Kemp, en banc case of Davis v. recent sentencing argument during the cutor’s (11th Cir.1985) (en 1515, 1519-20 F.2d Francis, 716 F.2d 780 phase. our Davis banc). analysis employed (11th Cir.1983). rehearing en petition A recently by the sim- opinion was confirmed vacating panel granted, thus banc was analysis Court in ilar used (11th Cir.1984). opinion. 728 F.2d 1358 — Franklin, -, Francis U.S. (1985). The L.Ed.2d 344 ONE: SANDSTROM ISSUE SECTION mandatory here is a rebuttable instruction AN 1. WAS THERE IMPERMISSIBLY the instructions presumption, as were BURDEN-SHIFTING INSTRUCTION impermissible in Davis and Frank- found ÜNDER SANDSTROM! Davis, 752 F.2d at 1517-20; Frank- lin. — lin, charged at---,---, Brooks was a four-count indictment, 1970-1971, the first count of which was con- at 1972-1973. We S.Ct. argues impermissi- that malice murder. Brooks the instruction here clude that regarding judge’s proof malice with re- bly trial instruction shifted the burden malice, burden-shifting necessary impermissibly spect under element Montana, 510, v. charge against 442 99 Brooks. Sandstrom U.S. murder (1979). 2450, 61 L.Ed.2d 39 The rele S.Ct. argues that the malice instruc The state part instruction reads as fol vant tion, conjunction with the when read lows: charge, infect the jury entire did not “so Georgia says The law of the State of that resulting conviction entire trial that process.” Cupp Naught- person commits murder when he un- due violate[d] en, aforethought, 396, 400, lawfully 141, 147, malice 38 and with 414 94 U.S. express implied, argument causes the either or The state’s L.Ed.2d 368 one, being. Express depends upon several death of another human a subtle First, correctly building the state malice is that deliberate intention unlaw- blocks. Georgia is de fully away a fellow malice murder to take the life of notes that killing without creature, intentional done by external as an which is manifested fined objection procedural default in this court or Although claimed counsel made no defense 2. court; trial, argued that defense jury charge procedural nor has it there is no district object af- should otherwise counsel’s failure to default the state court reached the because merits, Zant, analysis. fect the Sandstrom Brooks v. Sandstrom issue on the 5142, slip op. (Sup.Ct. Cty. Butts Feb. No. 16-17 882, 183, 2, 1982), denied, Appendix jury charge U.S. 103 S.Ct. cert. 459 is attached as 3. The entire (1982), opinion. 74 L.Ed.2d 148 and the state has not A to this 1389 Lamb Jer justification. After provocation or a careful review of the malice in struction, 1332, (11th Cir.1982), in the context of the nigan, 683 F.2d entire denied, charge including 1024, 1276, the earlier intent instruc cert. 103 S.Ct. tion, we cannot possibility discount the (1983). Second, that the state jury a reasonable could have understood in this argues that there was case no hint the instructions to create an unconstitution provocation justification,4 or so that the presumption al of malice and its intent com might only sub-element of malice which — Franklin, See ponent. at-, U.S. possibly dispute have been in was intent. 8, 1971, -n. 105 S.Ct. at n. 8.6 As Third, separate argues the state that a Sandstrom, Court said in “we given, proper intent instruction was which way have no knowing ... [the ly “may instructed the intent was not convicted on the basis defendant] inferred” all the facts and circums from of the unconstitutional instruction.” Sand Thus, argues the state tances.5 strom, 2460; U.S. at 99 S.Ct. at jurors have understood the would malice — accord, Franklin, -, U.S. at instruction to refer to the earlier intent best, S.Ct. at 1975 n. 8. At the contra charge compo for a definition of the intent dictory instructions as to intent and malice malice; and, argument nent of contin may have confused the prop as to the ues, improper burden-shifting presump er See Franklin v. Fran proof. burden of charge tion the malice would have affect cis, (11th Cir.1983), 720 F.2d provocation ed the sub-issues of — aff'd, -, U.S. justification, and not the sub-issue in (1985) (— -, L.Ed.2d 344 tent. “Nothing 5.Ct. at 1975: specific in these problem argument with the state’s charge sentences or in the as a whole the malice instruction does not either makes clear to the that one of these expressly impliedly or refer for a definition contradictory instructions carries more of intent to the earlier intent instruction. weight than the Language other. Moreover, appeared the intent instruction a merely explain contradicts and does not pages prior full six to the malice instruc- constitutionally infirm instruction will not tion. suffice infirmity”).7 to absolve the circumstances, Although provoca- there was in fact no hint of acts and conduct of the tion, accident, defendant, there was an issue of see presumed or it when it infra might aspect which be considered an necessary would be the natural and conse- Thus, justification. building one of the quence blocks that act. on which the added). state constructs its (Emphasis It is true that this court in fact, undermined. the state’s fo- Lamb construed an identical intent instruction sub-issue, i.e., very cuses the error on the wheth- being permissive, Jernigan, Lamb v. 683 F.2d non-accidental, killing er the as to which (11th Cir.1982), denied, 1338-40 cert. 460 evidence, overwhelming there is not and as to 1024, 1276, (1983), U.S. 103 S.Ct. 75 L.Ed.2d 496 might which there have a been reasonable and that the en banc court in Davis cited Lamb doubt. See II Part of Section One. approvingly regard. infra Kemp, in this Davis v. 752 1515, (11th Cir.1985) (en banc). F.2d 1518 n. 3 5. The intent instruction to which the state refers Accord, Montana, 510, reads as follows: 6. Sandstrom v. 517, 2450, 2455, 99 S.Ct. 61 L.Ed.2d 39 Now, gentlemen, ladies and criminal intent crime, being every an essential element of it is Jernigan virtually We question note that Lamb v. is by you a of fact to determined 7. be. indistinguishable from the instant case. whether It in- such intent in the existed mind of impermissible volved an malice alleged this instruction vir- defendant at the time of the instruction, evidence, tually identical malice crime. Intent instant can be established separate satisfy and also a it must be evidence intent instruction which was which will your virtually beyond minds a identical to the intent instruction in reasonable doubt. In- may many ways, permissive tent this case. shown ladies and intent instruction in gentlemen, provided you Lamb did find that it existed not cure the unconstitutional malice instruction, produced you from the evidence before dur- nor does it in this case. See Lamb ing may proven Jernigan, this trial. It be inferred from v. 683 F.2d at 1341. 1390 reasons, In this reject the evidence did create an we

For the same thus, malice; respect unconstitutional that the issue fo- state’s general by the was cured cus on the first situation. malice instruction Davis clarified establishing presumption proper- prong instructions the fact that this first should intent, burden and the state’s ly of innocence focus on whether the evidence of of the crime. This proving every element rather than the more inclusive issue of expressly that was overwhelming. the same guilt, is The evidence ad- in Franklin and rejected by the Court overwhelmingly duced at trial indi- Davis’ noted, Supreme Court As killed did Sandstrom. cated “that whoever the victim so upon improp- might Davis, have relied with intent and malice.” F.2d 752 burden-shifting presumption either er Although at 1521. that Davis evidence rebutting presumption means for was the killer not have been over- innocence, proof or as a means which whelming, light testimony of Davis’ could be satis- beyond reasonable doubt contrary, succinctly the court stated — at-, Franklin, 105 U.S. fied. appropriate inquiry that the was whether 7, 1973; Sandstrom, n. 442 at 518 at U.S. overwhelming, the evidence of intent was n. 7. 99 S.Ct. at 2456 overwhelming there was evi- whether 9 guilty dence that Davis was the killer:8 After a review of the entire careful Although opinions some talk in terms of charge, juror we find that reasonable (which overwhelming guilt, evidence could well have concluded that Brooks bore obviously always will the necessi- include necessary proof the burden of on the ele- intent), ty overwhelming evidence ment of We thus conclude that the malice. analysis text makes clear instruction violates Sandstrom. Franklin, Sandstrom error evidence doubt. identified two situations where a harmless 21; can be error was harmless. The other errors of constitutional den-shifting under expressly malice instruction was Davis cuit that a see analysis II. The state maintains that even held recently reaffirmed also Davis However, of the defendant’s (11th left ERROR HARMLESS? WAS — harmless McCleskey Kemp, Sandstrom open the Cir.1985) U.S. appropriate: THE Kemp, our can Sandstrom, beyond SANDSTROM question ever be harmless. en impermissibly -, (en error, guilt banc banc). F.2d at for this cir (1) 105 S.Ct. at magnitude, reasonable Court has where the whether a like was over court Davis 1520- if error most F.2d bur ing Davis, (1985) affirming F.2d original); U.S. evidence of intent was was the killer is not Thus, overwhelming evidence that Davis 96, 97, affected 460 case concluded that Davis was the that the crucial of intent. er ...”). -, L.Ed.2d 823] U.S. that conclusion could not (— 752 F.2d at 1521 985] not there accord, this “court’s conclusion 105 S.Ct. ^[73] (Powell, See Connecticut the erroneous instruction. at 86 at-, [103 (11th Cir.1983), aff'd, Franklin v. inquiry (Blackmun, overwhelming J.). [103 S.Ct. at far required. n. 10 from overwhelm relates S.Ct. 969 979, 982, J.) Francis, (emphasis jury in v. and at to wheth- Johnson, evidence at killer, 1977: been 977, 983,’ — 90, (2) whelming; emphasized nature of where the instruction Davis also an important concerned an element of the crime the defense at trial is factor which Davis, not assessing was in issue at trial.8 in whether there is overwhelm- F.2d Davis, ing at 1521. of intent. In the evidence McCleskey Kemp, apparent. In 8. See The for this focus is the 753 F.2d 903-04 9. reason Davis, case, (11th Cir.1985) (en banc). the erroneous intent usual as in jury’s possibly not affect the instruction could who the was. determination of killer non-in- able as to had guilt of the defense was Davis’ doubt Brooks’ been thrust killing, and the defense volvement by raised reference to evidence con- the overwhelming rebut the made no effort to cerning other man. the that killed the victim did evidence whoever malice. While intent so with intent and However, Davis, unlike the in situation in the sense that it was remained at issue Brooks’ intent to kill clearly put was in proof the burden of re- not conceded and issue at trial. The state heavily relied on a state, the ex- mained on the Davis court which gave confession to police important as pressly considered the fact in which he kidnapping, admitted raping, that the did not contest the issue defense robbing, killing and Galloway. Carol In intent, leaving over- thus unrebutted the fact, only evidence adduced at trial whelming killing that the was in- evidence concerning killing the fact of the itself was tentional.10 derived from Brooks’ confession. In the foregoing discussion of stands Davis confession, Brooks stated that after he trial in this contrast to the case. Brooks victim, raped pointed he pistol his presented “hy- a what can best be termed keep her her screaming to from and the lawyer, brid” defense. His like most thor- pistol off.” “went Brooks never conceded lawyers, ough competent and defense that he intended to kill pled and he many cross-examined most of the state’s guilty charge murder. In- malice attempt witnesses in an to undermine their deed, closing argu- his credibility, perception recall and events. explicitly ment referred to the accident de- Unquestionably, major objective fense, urging to disbelieve it: defense was to blame on another man cast shortly who was arrested after the crimes Now, thing judge] going one other [the as a material witness and who testified on, charge you statement [Brooks’] theory state at trial. Brooks’ ..., says saying he she was let me regard was that the failure of wit- some go, screaming, gun took his and and he Brooks, positively identify nesses to pointed her, out and it at tried to make identify those witnesses’ inclinations to hush, that, you her will recall and that he man,11 other tended exonerate Brooks. pulled back, gun the hammer and the attempted Brooks also show that say He doesn’t it was an acci- went off. shirt found at the scene of crimes dent, implication. he leaves that but man, alleg- would have fit the other a man And, charge going you Court is on edly larger much than himself. It true you say you accident. We are in when closing defense thrust of counsel’s situation, you’ve got argument, overwhelming that kind of in the face of evi- contrary, your finger trigger you point dence to the was that reason- a Johnson, 10. See Connecticut error hold harmless doctrine step (1983) (Black- 969, 977, L.Ed.2d 823 should where a defend- similarly applicable writing justices) a mun, J., of four ant plurality intent, does not concede focus- formally ("In addition, Sandstrom error harm- es his alibi or a may defense similar entirely upon less if overwhelming the defendant conceded the issue of in- in the face of defense, evidence tent____ presenting a defense alibi, such as committed did so whoever the offense in- self-defense, or overwhelming defendant insanity, When such evidence tentionally. alleged some cases the act admit unrebutted, is left is not intent wholly intentional, prosecution thereby sufficiently unreasonable to think that court an appellate reducing the likelihood that depending applied all can, the facts circum- upon erroneous as to instruction permit appellate stances of the be satisfied reason- beyond harmless____ court the error We consider able the error harmless. doubt leave it to the courts to wheth- lower determine just court can do so as in a readily appellate raising er defense other particular the issue was conceded. case where of intent actions, a himself defendant has taken the issue jury”). of intent girl, from away witness, a old one Only 12-year actually the other man made a identification positive Sandstrom If a error can be when harmless during a line-up. conceded, the issue of it is a short intent gun pull ham- somebody, you gun at fendant admitted that he fired the back, mer it ain’t no accident.12 killed the victim. which The defendant ar- charge home, the trial court did Significantly, at the victim’s rived a woman Finally, briefing jury kidnapped, on accident. keys he had demanded the panel, before the the state acknowl- case to the victim’s car at the threshold of the edged demand, defense to the malice that Brooks’ After the victim’s home. the vic- charge The murder was one of accident. proceeded tim to slam the door the de- argued and circum- time, state that the facts at fendant’s face which the defendant properly testified, stances of the case led off,” gun simply “went acci- that Brooks had acted inten- the conclusion dentally killing the victim. The evidence tionally, recognized that if the through showed that the bullet travelled chose to believe Brooks’ version would killing the door before the victim. The charge him mal- have exonerated of the defendant then fired a second shot into the ice murder. the Sand- ceiling. The court held that Acknowledging, must, as we that strom error could not be considered harm- squarely accident issue before the less: and that Brooks’ indicating statement that only defense was that defendant’s] [The gun unintentionally, went off if be- requisite he did not have the intent lieved, would have him exonerated overwhelmingly kill. The facts did not murder, charge of malice we review the preclude The coincidence that defense. case to see if the Sandstrom error was slamming of a first shot with the beyond harmless a reasonable doubt. The door, any- the second shot’s failure to hit facts adduced at trial tended to show that one, path or take a on which it would Brooks abducted Carol Galloway Jeannine anyone, injury and the lack of have hit from her away home and drove with her in supported anyone else all the lack an In police, automobile. a statement presumption A intent defense. that confessed, above, as indicated completely kill elimi- Franklin intended to kidnapped, raped, robbed, he had and killed nated his defense of “no intent.” Be- Galloway. strongly implied, The statement plainly issue in this cause intent was at however, killing was accidental. overwhelmingly and was not pointed He gun Galloway, stated, he ..., proved by the evidence we cannot being quiet to scare her into because she find this error to be harmless. begun had to scream rape. after Francis, 720 F.2d at 1212.13 Franklin v. point Brooks said that at gun Court, deciding without simply “went off” Galloway. and killed whether a Sandstrom error question can Galloway evidence indicates that died harmless, recently ever has affirmed gunshot of one to the neck. Brooks did Franklin, by explicitly relying decision in admit in his police statement to the “court’s conclusion that the evi- our after Galloway ground fell “got he overwhelming from dence of intent was far scared” and fled the scene of the crimes. — ____” Franklin, Francis v. U.S. support In of his -, 105 S.Ct. at 1977. harmless, Sandstrom error was not 18, 87 Chapman California, Brooks cites the case of Franklin v. Fran (1967), cis, (11th Cir.1983), sets out 720 F.2d 1208-12 — -, aff'd, standard which most constitutional 85 the Franklin, considered harmless. Un- errors should be the de- L.Ed.2d 344 question of acci- prosecutor’s than in Franklin. The evidence 12. It should be noted that the de- case; scription stronger of Brooks’ statement was somewhat of than in this dent in Franklin was embellishment, as Brooks never admitted to in this case is the evidence of intent and malice having finger trigger. on the present stronger in Frank- than that which was lin. acknowledge We that in the instant case the presents harmless error determination a closer

1393 banc, a criminal Chapman, hearing conviction must (1984). der en 728 F.2d 1358 As appellate if the be reversed court cannot reflected Brooks’ statement to po- the a say “beyond reasonable doubt that the lice, issue, only practical was the ef- complained of did not to error contribute fect, subject dispute respect to with 24, 87 Id. at obtained.” verdict the charge. malice murder Chapman, applying we at 828. S.Ct. course, the jury Of was free to discredit must look at the constitutional error in- Brooks’ statement as to the accidental na- The instruction as to malice volved. stated killing. of ture the Because of the errone- presumes every ... that law homi- “[t]he charge, however, ous we cannot determine to be contrary ap- cide malicious until the jury Brooks, whether the pears disbelieved from the circumstances of allevia- tion, justification____” (Empha- merely excuse or whether it applied the erroneous added). Thus, jury sis the was instructed presumption every that homicide is mali- it was required by presume that law to cious. Brooks’ statement only was the di- maliciously Brooks acted because bullet rect evidence as killing to whether the was gun holding he from was caused the accidental or jury malicious. The could Galloway. death Carol Brooks was thus reasonably have inferred killing that the position having into forced to dis- was malicious from the evidence that malice, prove an essential element of mal- robbed, kidnapped, raped Brooks and Gallo- Georgia ice murder under law. This the way and from the evidence he threat- Mullaney state not do. See v. Wil- gun ened her stop her from bur, 44 L.Ed.2d screaming. However, it is possi- of course (1975) (state proving has burden of rob, kidnap, ble to rape and even threaten every beyond of the crime charged element intending without to kill.14 We must in- doubt). Moreover, a reasonable the burden jury’s sure that impaired is not role and proof placed upon was Brooks on what conviction-proneby rendered an unconstitu- was in fact essential element Brooks’ burden-shifting tional instruction. Consid- partici- since the evidence of Brooks’ ering circumstances, all the facts and pation kidnapping, robbery, rape, “beyond cannot conclude a reasonable killing and even the was otherwise over- whelming. Francis, doubt that Brooks from error 716 F.2d com- [Sands ] (11th Cir.1983), plained vacated re- of did not contribute [mur- argues preliminary The state firing weapon. instruction harm act This evi- overwhelming dence, circumstantial, less because there was evidence although upon and based rape, kidnap, that Brooks did confession, rob and kill Gallo implies Brooks’ nevertheless that he way. panel opinion See abo in this case. pulled weap- the hammer in order to fire the Francb, (11th Brooks v. 716 F.2d Cir. 794 728 on"). Respectfully, we think the dissent has 1983), banc, reh’g vacated en F.2d presumed merely intent to kill because of the demonstrates, (1984). however, Davb the falla probable consequences” and "natural of Brooks’ cy the state’s failure to distin —the only recently acts. Court has held guish between issue who was killer jury instruction is unconstitutional “a if that, Although issue of the killer's intent. juror thought reasonable could thus have overwhelming there is evidence in this case that although proved beyond intent must be a rea- killer, that fact does consti doubt, proof firing gun sonable overwhelming killing tute evidence that the ordinary consequences, proof its constituted Davb, intentional and malicious. 752 F.2d at doubt____” beyond a intent reasonable Francb n. 10. — Franklin, U.S.-,-, Judge apparently Kravitch’s dissent finds 1973-1974, Obviously, overwhelming evidence of intent to kill from possible it is threaten with a cocked and the evidence that Brooks threatened victim kill, weapon intending loaded without and it weapon. post, with the loaded cocked See inescapable seems to us that the reasonable in- (Kravitch, J., ("the dissenting) at 1423 not could ferences include not intent kill but also possibly ignored evidence that the intent to threaten. The was free to draw appellant threatened the victim with a loaded here, however, problem either inference. pistol accomplish rape, the abduction and burden-shifting improperly instruction began screaming not until she he did aim the placed proof the burden on Brooks. hammer,' pistol ‘pull at her cock it or it would hear Chapman, 386 informed evi- verdict obtained.” der] argument dence from both the state at 828.

U.S. punishment defendant on the issue. in Accordingly, district court erred allegedly closing improper an ar- Because corpus habeas denying the writ of gument only in the analyzed can be context murder conviction respect to the malice supplement proceeding, of the entire only. description of the crime with a above AR TWO: PROSECUTORIAL SECTION description presented of brief the evidence SEI.15 AT PHA SENTENCING GUMENT phase. sentencing at the opinion will be ad- section of the This Danny called The state one witness. I Part recounts as follows. dressed officer, Dunaway, probation parole issue, relevant this of Brooks’ case facts reputation that Brooks testified had bad focusing particularly on evidence community. capi- phase of his argument penalty at the Part the relevant trial. II discusses tal Counsel for Brooks called three witness- standard, fairness” elaborat- “fundamental mitigation. testify es to in Brooks’ mother light upon it in of v. Wash- ing Strickland Brooks and two sisters testified that had — -, 2052, 80 ington, step-father severely by been beaten III examines the Part L.Ed.2d began get that he in child and trouble Georgia capital sentencing pur- trial for the at that time. may appropri- be determining what pose of Following this the introduction of evi- justification as a ately argued jury dence, closing argu- Whisnant made his imposing Part IV considers the for death. began ment for the state.17 He with a argument in prosecutor’s closing the sen- purpose” brief of the “two-fold discussion tencing phase recognizes case and of this guilt punishment punishing and deter- — improper arguments. Finally, Part certain ring Concerning punish- like conduct. improper arguments de- V examines motive, argued that ment Whisnant “the they whether entitle Brooks to re- termine punishment appropriate is death in the lief. electric chair.” explicit Whisnant then moved into a more

I. FACTS “I of deterrence. He said discussion be- William was arrested and tried penalty. I think lieve in the death it’s tragic July, 1977 murder of Carol for Then, necessary.” responding to the antic- Galloway. Jeannine The found the ipated argument penalty the death murder, 22-year guilty old Brooks kid- deter, does not Whisnant claimed: napping, rape, robbery. The and armed person Georgia was Whisnant, ... The last in elec- prosecutor, Mr. Mullins decided date, trocuted in and since that to seek the death Brooks’ case.16 year, Therefore, conviction, year by crime has increased time following time, every the statistics penalty phase for after time come reconvened Geor- out, capital sentencing in crime rate. gia’s scheme. Ga.Code we have increase § 17-10-2(c) (1982). capital Ann. trial court We didn’t have that we had when law, might Georgia punished 15. We have declined to address Brooks’ 16. Under murder claim, argument prosecutorial since deci- imprisonment. our death or life Ga.Code require will 1(d)(1982). sion on the Sandstrom issue a new Ann. The decision seek § 16—5— thus, and, trial for malice murder tencing a new sen- given prosecutori- case is death in a a matter hearing guilty found if Brooks is al discretion. However, charge. malice murder same for the many reasons that it is desirable cases prosecutor's detailed recitation alternatively district courts to address the sever- necessary follows if one is to cases, al claims in we exercise our dis- its overall effect. understand proceed cretion in this the mode of holding, alternative address an prosecutorial the issue of sentencing. group punishment. committing We have this kind “that’s the that’s didn’t crimes murder, you’ve kinds crimes country.” these week, about when we had heard points Whisnant then made several di- were, they they capital punishment. If possible squeamishness rected to seldom, very were we heard about them imposing punishment. about the ultimate else, but not here.18 somewhere First, he reminded jurors Next, arguments anticipation solely responsible would for Brooks’ counsel, prosecu- sympathy defense death: high jury tor reminded the of the victim’s I’m question Now sure another morals, thoughtful and and na- considerate might going your be through mind at has ture. He also asked “What the Gallo- is, this time I get jury when back to that family way gone through, they what have room, vote, and we have to and I vote to gone through? Next week when it’s somebody’s life, take I can do it? I know Thanksgiving, sitting and are around rough, it’s it would be hard for tome do. table, there, Carol Jeannine won’t be Well, I somebody’s Can take life? will again.” and never be there is, truth of matter you’re taking not Argument then turned to issue life, you’re pulling his not the switch in why prosecutor sought penal- the death chair; police the electric who investi- ty argued: here. Whisnant gated apprehended this case and who Brooks, for attorney I’ve been district seven and they’re taking William not his years, life; we half and don’t take this busi- Judge Recorder’s Court who asking penalty for ness the death heard the in the preliminary evidence lightly. up every We don’t come here on hearing, you say to going he’s re- try say, murder case that we and “Give sponsible taking for his life? Of course the man the electric chair.” the seven not. How Jury about the Grand who years and a half I’ve been district attor- listened evidence and him indicted ney, I believe we’ve asked for it less murder; for are the Grand Jurors re- times, a dozen than I think it’s nearer life, you sponsible say they’re for his can nine, eight or I but know it’s less than to take his life? Of about course not. So, seriously. twelve. take We we staff, my put How about me and you ask to it seriously. take him, together prosecuted case and we asking you bring we’re and here now to length He then discussed at he factors that asking penalty, back death do we feel re- penalty considered for the and sponsible? any- I I don’t suggested justified imposing which he don’t. think First, body my death. he discussed how office does. horrible the crime was. He then described the over- man, electrocuted, How about the if he’s whelming guilt. Finally, as to he evidence switch, pulls actually who is he re- opined raised the issue of rehabilitation and sponsible taking life? his Of course that “there’s no chance that William person responsible The not. who is will Brooks ever be rehabilitated.” himself, his life is William if Brooks and death, pulled put the switch is and he’s partic-

Whisnant next focused on factors pulled morning he the switch the he ular might which call for walking along Mary’s Saint Road sympathy. argued He it was “ridic- put gun suggest when he in the back of Carol ulous” to that Brooks’ troubled her, upbringing mitigate punishment. Galloway kidnapped should Jeannine his pointed when he took life. He’s a also out that even that’s his own man, though young, grown Brooks was it was still nec- and he knew what he was punish essary young people doing. because Columbus, Georgia, state had area. not introduced evidence nationally about crime rates since 1964 or in the this, say going should And this is—I’m implied Whisnant me, agree I’m maybe you don’t be- from the shy away being I’ll accused materialistic sure it: believed in Brooks himself cause it, why giv- saying he’s should—if going to sure Now I’m life, him, money keep en it cost thou- made, Araguel, or by Mr. either year keep prisoner sands dollars that, maybe some member housed, clothed, and medical fed and bad, maybe penalty is the death “Well care, taxpayers, why should the let me something else.” Well we can do folks, us, you why that’s all of should the you I in it. say you; I told believe taxpayers keep up somebody have to like pen- in the death Brooks believes William William Brooks rest of life when executing people. He he alty, believes he’s done what he’s done? Galloway down carried Carol Jeannine Whisnant then delivered an extended sight every- woods out of the those analogy jurors between and soldiers. Galloway didn’t body. Carol Jeannine you, during my say Let me this to her, battery lawyers around have a has been in three country lifetime this rul- sitting there judge she didn’t have a wars, young taken our each war we’ve evidence, twenty get ing on she didn’t age seventeen, men to the we’ve down of selected, jury was she strikes when the them, put guns their trained we’ve didn’t have courtroom with cameras hands, taught how to we’ve them kill so could see if she that whole world overseas, enemy, them and we’ve sent got just stepped at a fair trial. He back beings they and have killed other human point-blank range within three feet of country, who are enemies of our and her, So, he be- her and killed shot her. them, good they job killing when did a of penalty, executed lieves in the death he gave them and them cita- decorated her, a lot more horrible than the electric tions, praised it. them for thing, quick brings is a death chair which Well, say you to that we’re in a war I quickly. lay perhaps on real She there except again country, in this it’s not an hour and a half or two hours before nation, foreign against it’s the criminal to she bled death. country, in this that’s who we’re element jury

He show Brooks the same asked to with, winning the they at war and are victim, i.e., sympathy that he showed his war, bad, you if so and don’t what’s none. they winning, just believe are look about get out you. You don’t dare on the vein, Continuing same Whisnant around, you night streets walk and sentence, argued impropriety of a life your don’t dare leave house unlocked. suggesting might guard that Brooks kill a fact, I know everybody most has add- prisoner. example, argued: or a he For house, burglar ed to their and more locks is, thing And the next he has demonstrat- bars, And, burglar we’ve and alarms. ed Anybody that he’s a killer. who can got a man here town who makes person, poor kill a or murder defenseless And, living you go guard dogs. if with a poor person defenseless like he did will your hospital to the to see some of care, again. He life kill doesn’t doesn’t friends, got get by security you’ve to anything you put him. So him mean to there, security place up you and see guards in prison. about those How everywhere. Why they guards are They guard to him. families have have criminal element there? Because them, do depending you on how know he country. winning. in this It’s won’t kill one them? And, seventeen-year if we can send suggested escape and enemy kill an young old man overseas jurors, daughter will asked the “Whose it soldier, asking you much to is it too ask be next time?” penalty death go and vote for the back Brooks, against and argued: then in this case William Whisnant you enemy, he’s kill again I submit an and never if jury returned a death element, of the criminal he’s a member verdict. enemy and enemy, and he’s our he’s abiding people law citizens and the Whisnant concluded his peacefully who want to live in this coun- recapitulation with a brief the facts try, who want be secure in their and crime, including following: persons and their homes. just walking along ... He was with a know, you people You lots of times see pistol pocket, decided, in his and he street, they always on the and “well, hustle,” I’ll make a to use their know, stopping us saying, and “You language, language. And then after got something’s done about that, “Well, her,” he rape did I’ll he so wave, do, crime what can we Mr. Whis- carried her down in the raped woods and nant; do, Smith, what can we Mr. we’ve her and shot her left and her there bleed- got Well, something you do about it.” ing to death. opportunity something have an to do they He reminded the right in- police about it now. The had indi- vestigated prosecuted they we’ve cated voir dire that were not consci- how, you’re the best we know and entiously opposed penalty, to the death and Truman, position Harry who had could vote for if the facts sign said, his desk a “The Buck and circumstances warranted He it. asked Stops Here.” buck stops you room, go consider today. you something And do can about circumstances, bring facts bring You it. can back the death back a verdict death.19 Brooks, you can tell you William closing Brooks’ counsel then made his him, every can tell other criminal like argument. He emphasized juror responsi- you if that come to and Columbus Musco- bility for this your “hardest decision gee County, you crime, and commit a and specifically any implica- life.” He rebutted punishable it’s one of those crimes that’s in tion might Whisnant’s that by death, aggravating if and the circum- suggest grand jury, prosecu- that the there, stances you going get are are to tor, and responsibility others shared for the chair, you the electric that’s what can do. sentence: And, I believe will stop some of the crime. None of people those that he named had the decision-making responsibility, Following argument, this on “war crime” you have decision-making twelve re- compared Whisnant Brooks to cancer sponsibility, that should be cut out to save the whether this man or body lives society. He claimed that Brooks would this man dies. any during record, objections

19. Counsel did not overly enter damaging. anee a cold was not closing. Although Whisnant’s counsel’s failure implication Such an be cannot drawn from the object to to does bar our colloquy during record here—a the defense's review of the claim in this objection the lack of an closing attorney revealed that Brooks' knew the a factor be is to considered in exam prosecutor’s argument objectionable, ining impact prosecutor’s closing argu of a objection professional abstained from out of Rowe, ment. United States rel. v. ex Smith courtesy. courtesy Such should not be main- (7th Cir.1980), F.2d 1211 n. 3 vacated improper closing argu- tained in face of an Smith, 810, 101 nom, sub Franzen ment; easily by can be errors cured more a trial (1980), reinstated, United L.Ed.2d 13 States following objection court instantaneous than Franzen, (7th rel. ex Smith F.2d Cir. reviewing laboring court to discern the effect — 1981); U.S.-, Young, United States v. cf. printed upon jury. words an unseen In (1985) (on direct event, arguments because we conclude that the conviction, object review of federal failure to to enough were not here severe to render the sen- improper prosecutorial argument judged is un unfair," tencing "fundamentally we need not standard). "plain error" der The lack of an ob precisely objection consider the lack of how jection may demonstrate defense counsel's be should be assessed. argument, despite appear- lief that the live its exist, aggravating Whis- circumstances did rebutted counsel also Defense imprisonment. argument: could still recommend life on crime” nant’s “war Driving responsibility sole home the you Attorney argued that The District charged: jury he nothing less being upon to were called your coun- you penalty, in the service of If death than soldiers recommend the you I have try, required by know some of law which then court is to sen- But, a also the armed forces. death. served tence the defendant to On contemplate, hand, fit, you doesn’t have time can and soldier other see ladies isn’t to make decisions gentlemen, aggravating he asked whether circum- and dies, anyone not, lives and whether or to recommend about stances existed difference, you have mercy because if this for the defendant should be you that decision-mak- power, your finding, then that event court shoulders, ing upon your responsibility required by law sentence the de- man will live or die. imprisonment. as whether this fendant to life that no then noted and respect Counsel With facts circum- serious, bring punishment, could jury, however considered stances sanctity gave back. He discussed the judge victim a clear definition of both miti- commandment aggravating of life and the Biblical cir- gating circumstances and cumstances, not kill.” charged “Thou shalt as fol- lows: Turning justifications the penological determination, arriving your you argued by prosecutor, defense counsel all to consider the evi- authorized rehabilitation, ar- possibility of stressed the trial, throughout dence received deter- gued not a presented by both the state the de- rent, many studies to and referred to fendant. You are authorized include effect, noting you probably that “most of your facts cir- consideration the Finally, are familiar with these studies.” cumstances, mitigation ag- any, if questioned weight he evidence gravation.21 Brooks’ guilt and reminded the troubled childhood. deliberating approximately one After hour, verdict of death. returned its jury. judge trial then instructed charged jury’s responsibil- He that first II. REVIEW STANDARD OF mitigat- ity any was to determine whether prosecutor’s Appellant ing existed claims that aggravating circumstances repeated closing argument He contained refer was committed. the time murder irrelevant, arbitrary, preju charged jury that the would be authorized ences impose the only if it as reasons to dicial factors recommend the death points penalty. correctly He out that beyond a the exist- death found reasonable doubt statutory very found similar one ence of one or more of three “fundamentally by panel unfair” of this ag- three aggravating circumstances. The (11th Zant, F.2d 940 gravating were court Hance v. 696 circumstances read 1210, Cir.), denied, that, 463 103 S.Ct. if cert. U.S. jury.20 jury also told even The was (1) Galloway, aggravating aggravating the existence of circum- 20. circumstances were three Thus, the of- case. that the murder was committed while not in doubt in this stances was (2) rape; engaged prin- fender was in a arguments not concerned of counsel were while murder was committed the offender cipally statutory circumstances render- with the (3) robbery; engaged an that the death, armed eligible ing for but rather with vile, wantonly “outrageously, or murder was jury’s discretion to choose between broad in that involved an horrible or inhumane imprisonment. death and life aggravated battery find- the victim." A valid ing would even one circumstances of these given concerning how to No instruction was penalty. support Because arguments of counsel. evaluate already guilty beyond a rea- had found Brooks robbery rape doubt of and armed sonable

1399 (1983).22 3544, L.Ed.2d 1393 We alleged 77 now review of in argument errors must court, the issue as an en banc reexamine be informed pros- awareness that the overruling any implications in Hance incon- authority ecutorial mantle of can intensify opinion. sistent with this the effect on misconduct.24 Donnelly B. v. DeChristoforo Dangers Argu- A. Prosecutorial Notwithstanding dangers dis ment above, cussed our review of a prose state long recognized It has been that miscon- cutor’s petition on a for writ of prosecuting attorney closing duct corpus habeas is more limited than if we argument may grounds reversing were examining errors prose of a federal States, Berger conviction. v. United appeal. cutor on direct Berger, Morris 78, 629, (1934). S.Ct. 79 L.Ed. 1314 cases prosecutions Hall were federal recognition sys- Part of this stems from a and, while provide their standards guidance prosecutor, temic belief that a while an for reviewing claims on corpus, habeas advocate, public is also a servant “whose Estelle, 372, Houston v. 569 F.2d 380-81 interest, therefore, in prosecu- a criminal (5th Cir.1978), predecessor our court has tion is not that it shall win a but that Georgia noted prosecutors are allowed 88, justice shall be done.” 295 U.S. at 55 more in jury arguments freedom than their at 633. S.Ct. counterparts. federal Bryant Caldwell, Beyond a concern with the inherent role 65, (5th Cir.1973), 484 F.2d denied, cert. prosecuting attorney, courts have 981, 94 S.Ct. 39 L.Ed.2d 878 prosecutorial also noted that misconduct is particularly dangerous likely because of its In Donnelly v. DeChristoforo, 416 U.S. jury. Speaking influence on the (1974), prosecutor’s duty justice, to seek the Ber- Court set forth the standard ger stated: Court reviewing corpus petitions habeas rais- say average jury, It is fair to that the in ing impropriety prosecutor’s of a state greater degree, or less has confidence argument. case, petitioner In that obligations, that these plainly which so tried Massachusetts first-degree for a upon prosecuting attorney, rest will During closing, murder. re- faithfully observed. Consequently, ferred to defense counsel saying “They insinuations, improper suggestions, and, they hope you said find him guilty. especially, personal assertions of knowl- quite frankly they I think hope edge, apt carry weight much you guilty find him something a little against the accused when should first-degree less than murder.” Counsel properly carry none. objected remark, coupled with the 633; see also pled U.S. at fact that a co-defendant guilty had Morris, trial, United during States 568 F.2d suggestion constituted a (5th Cir.1978);23 States, Hall v. United sought that the defendant had 582, (5th Cir.1969). Thus, F.2d 583-84 plead guilty our to a lesser-included offense prosecuted by swearing jury. 22. Hance was practice same district the task of The of attorney’s Muscogee County. allowing anyone judge office other than the or clerk of perform duty by court to was forbidden Prichard, City In Bonner v. 661 F.2d 1206 statute in 1979. Ga.Code Ann. § 15-12-132 23. of (11th Cir.1981) (en banc), State, 97, adopted Ga.App. this court as In Ates v. 155 270 binding precedent (1980), Georgia all of the Appeals decisions of the S.E.2d 455 Court of prior former Fifth Circuit handed following prose down reversed a conviction obtained 30, September close of business on swearing jurors 1981. Id. at cutorial statute, of in violation of the 1209. finding that "we are unable to deter prejudice may juror’s mine the form the Concerning jury’s perception by of the role 24. minds when the oath is administered prosecutor, 97, interesting prosecuting Ga.App. of a it is to note that the arm of the state." 155 assigned trial court in Brooks’ case to Whisnant 270 S.E.2d at 456. 1400 process that “the of constitutional by the The nized prosecution. was refused regard drawing necessarily disregard line in this instructed trial court 645, at 94 imprecise.” 416 U.S. S.Ct. at remark. is itself Fundamental fairness Court, Supreme acknowl- while The many verbal formulations of the one of may remark been

edging guaranteed process as scope of due grant court’s lower improper, reversed and Fourteenth Amendments to our Fifth rele- holding In that the relief. habeas See, e.g., Hobby v. Constitution. United remark vio- inquiry whether the vant — 3093, U.S.-,-, States, 104 S.Ct. majority stated that process, the lated due 260, (discrimi- (1984) 3096, 82 L.Ed.2d 266 infirmity every or ... con- trial error “not grand foreperson in selection of nation that funda- a ‘failure to observe stitutes integrity does not “undermine very con- essential to the mental fairness process); to violate due indictment” so as California, v. cept justice.’ Lisenba 625, 637-38,100 Alabama, 447 U.S. Beck v. 280, 289, 219, 86 314 236 S.Ct. U.S. [62 2389-90, (1980) S.Ct. (1941).” 416 at 94 U.S. L.Ed. 166] (Alabama precluding jury capital law examining the 1871. After isolated S.Ct. at receiving remark, from instruction lesser-in- particu- case possibly unintentional process cluded offense violates due because light the curative instruction larly in court, of an given by the the Court ex- it “enhances the risk unwarranted trial conviction”); inability California, “that this v. pressed its conclude Rochin 205, 209-10, so 165, 172-73, trial incident made 72 S.Ct. U.S. [DeChristoforo’s] fundamentally deny as him due (use unfair (1952) pump L.Ed. 183 stomach S.Ct. process.” 416 U.S. at 1872. production narcotics vio- force of concealed process due because it “shocks the lates provides impor- Donnelly decision jus- offends a “sense of conscience” and im- guidelines reviewing allegedly tant tice”). An of a recent Su- examination pri- proper prosecutorial argument. Of preme provide Court will addition- decision mary importance is the need to examine the guidance ascertaining appropriate al judicial proceeding. entire context of standard review. Thus, duty it is not our to ask whether unfair; particular con- remark are Washington v. C. Strickland cerned with whether rendered entire — or regard, trial unfair. In this isolated Washington, U.S. Strickland remarks ambiguous unintentional must (1984), -, L.Ed.2d lenity. Finally, giving be viewed with whether er- Court considered of a curative instruction the trial court in representation at rors of defense counsel remedy comments. improper effects of a sentencing phase trial were Estelle, 569 see F.2d But Houston deny so defendant the egregious as to (5th Cir.1978) use (prosecutor’s continuous guaranteed of counsel effective assistance shocking argument despite numerous the Sixth Amendment.25 standard objections by vi- defense counsel sustained (1) requires articulated a defendant show process despite curative instruc- olated due that errors of counsel were so serious as tion). range of effective be outside the broad assistance, (2) errors so were helpful, agree- principles these While of a deprive serious “as to the defendant upon rele- ing fundamental fairness — at-, readily par- fair trial.” vant does not resolve standard recog- at 693. We believe that Donnelly ticular cases. The Court 80 L.Ed.2d recog- application specifically a uniform standard dealt with errors 25. While case sentencing stage, capital sentencing, ordinary unlike counsel at nized sentencing, applied made clear that the test to highly proceeding Court is formal a examining also be used in trial errors. should statutory format standards an adversarial — -, -, Washington, U.S. Strickland punishment. guiding the determination 2064, 674, 2052, 80 L.Ed.2d 693 1401 discussion of the sec- proceed- Court’s fundamental fairness of the element, ing “prejudice” being called the whose result challenged. ond often —, requirement, directly analogous Thus, Id. at 80 L.Ed.2d at 699. inquiry acknowledged fairness to be under- fundamental Court fundamental fairness, improper prosecutori- taken in cases where the same adopted standard in Donnelly, al is at issue. is the governing principle in re- viewing errors of counsel. The use of in The court Strickland v. Wash the “reasonable probability” test to elabo- ington explained prejudice requirement rate the underlying principle suggests its as follows: applicability to other areas in which funda- The defendant must show that there is a mental fairness guide. is the that, probability reasonable coun- but for A support second for the Strickland v. errors, unprofessional sel’s the result of Washington analytic test is its similarity to proceeding would have been differ- prosecutorial our review of argument. Not probability proba- ent. A a reasonable all errors of require counsel relief. A re- bility sufficient to undermine confidence viewing court must errors, examine the in the outcome. those “acts and omissions outside the wide — range of professionally competent assist- -, 2068, at 104 U.S. S.Ct. at — ance,” at-, 2066, U.S. 104 S.Ct. at Thus, errors, L.Ed.2d at 698. even serious 80 L.Ed.2d at grant relief errors, require peti- will not a reversal on when it is requisite convincedthat the level corpus tion for writ of habeas unless their prejudice is reached. This is because have, probabil- absence would in reasonable “any performance deficiencies counsel’s ity, changed the outcome. must prejudicial to the defense in order blush, At first the use of this standard to to constitute ineffective assistance under prosecutorial argu- test the seriousness of — the Constitution.” -, U.S. at questionable. ment seem Federal S.Ct. at Similarly, L.Ed.2d at 696. conducting spe- courts habeas review take many could make improper guard against infringe- cial care to a state arguments rendering without cap- a trial or protections specifically granted by ment of sentencing ital hearing fundamentally un- Rights, right the Bill of such setting, fair. In each principal question Donnelly DeChristoforo, counsel. for the court is pass when mere errors at at U.S. S.Ct. 1871. Neverthe- threshold so as to create a constitutional less, compelling find support we reasons to violation. probability” use of the test in “reasonable The Strickland v. Washington test also prosecutorial the context of misconduct. commends itself because it is flexible First, the court in Strickland v. Wash- enough to accommodate evaluations of con- ington, addressing specific while Sixth stitutional errors of disparate magnitude. violation, Amendment recognized that Application of the probability” “reasonable “fundamental fairness is the central con- recognize test can that some errors are — corpus.” cern of the writ of habeas more tendency serious than others in their at-, U.S. S.Ct. at 80 L.Ed.2d to “undermine confidence in the outcome.” — Discussing application at 700. Washington, Strickland v. test, articulated Justice O’Connor wrote as -, 80 L.Ed.2d at 698. follows: Finally, asking whether the absence of adjudicating have, a claim important, improper argument Most in reason- would counsel, of actual probability, changed ineffectiveness of able the result is con- keep princi- court should mind that the sistent with the standards discussed ples subsequent apply- Donnelly have stated do not establish me- and with cases Although princi- ing chanical rules. those the fundamental fairness standard. decision, ples guide process should The several factors which those cases operate the ultimate fashion inquiry focus of must be on found relevant the same 1402 hand, (1979). the other L.Ed.2d 792 On probability” test. “reasonable the

under satisfy enough tolerate an the willingness arguments serious example, the For argument ambiguous stems probability” test have been isolated or “reasonable its minimal effect recognition of from a “fundamentally unfair” under the found degree See, e.g., factor —the jury. Another Donnelly standard. upon the Houston v. remarks have a challenged the Estelle, 569 F.2d 372 to which Cir.1978) (5th (re- prejudice jury and tendency mislead the peated inflammatory unsupported re- Zant, v. Hance accused, 696 F.2d at the liar and dealer of ferences defendant the necessarily included within n. 950 7—is argument that defense coun- drugs, argu Even probability test.26 reasonable objections and mistrial sel’s motions pro of exceeding the bounds greatly ment away from evidenced desire take case fundamentally unfair not be priety will objection by jury, all defense coun- the over phase27 of case with overwhelm guilt the sel, pervaded the trial as be unconsti- so probability of the low ing evidence because a curative instruction did tutional —even See, e.g., Cobb argument’s impact. of the defendant). mitigate prejudice actual not Cir.) Wainwright, (5th (giv v. 754 609 F.2d reasons, we that For all these conclude strength against of evidence en the Washington test, v. Strickland requir- defendant, prosecutor’s inflammatory an of errors to determine ing assessment trial fundamental argument did render probability is a reasonable whether there denied, 447 907, unfair), cert. 100 U.S. ly case, is changed the outcome of Cron (1980); 2991, 857 64 L.Ed.2d S.Ct. analysis of im- Alabama, applicable to our whether (5th Cir.) v. non F.2d 246 587 by closing arguments delivered proper argument not unconstitutional (improper capital prosecuting attorney rendered guilt), overwhelming evidence of due to denied, 440 974, 1542, sentencing hearing fundamentally unfair.28 cert. 99 59 U.S. S.Ct. different, related, strength factor A is Hance also listed as a factor whether the 26. deliberately accidentally prosecution were or for death. This factor remarks case caution, jury. placed F.2d at 950. While great keeping before the 696 should used clearly, may more fre- factor be more or Georgia retains unlimited in mind that a supervisory quently, a court with relevant for grant mercy egre- in even the most discretion to prosecutor, powers over the conduct However, gious that our cases. it inevitable prosecutor’s there be cases where inten- analysis improper prosecutorial at equivalent level to a tional conduct rises to a necessarily sentencing phase will be colored knowing Donnelly v. use of false evidence. See crime, by the manner of its the nature of 646, 1872, DeChristoforo, at 416 at S.Ct. U.S. 94 proof, other rele- the defendant’s character and 1, Pate, citing v. U.S. 87 S.Ct. Miller degree indicating the to which vant concerns (1967). L.Ed.2d 690 crime defendant the circumstances See, mitigated. egregious e.g., Strickland Zant, implied Hance 696 F.2d at n. — -, Washington, at at v. 2069, U.S. overwhelming guilt should not evidence (1984) ("a verdict or L.Ed.2d reviewing court’s conclusion that contribute to by only weakly supported improper the record prosecutorial did not affect conclusion jury’s penalty phase. likely It is decision in the more to have been affected errors itself, justify guilt, overwhelming support"). does not true death tion, one with record than must, penalty. Georgia A addi- probability” automatically The "reasonable test statutory aggravating find at least one cir- factor. subsumes this cumstance and then exercise its broad discre- deciding tion in the life or death issue on the use of the "reasonable 28. The Court’s facts and circumstances basis all the relevant Washington, probability” test Strickland hand, of the case. On other if evidence clear that it is consist- makes weak, guilt the defendant’s were would imposi- high reliability ent with the need clearly appropriate for the penalty. North See Woodson v. Car- tion same; reviewing important court to consider olina, L.Ed.2d 944 96 S.Ct. aspect jurisprudence is to in this area mini- partial Brennan's concurrence Justice person will be mize risk that an innocent application of the test demonstrates that Thus, overwhelming evidence of executed. guilt guided concern for cases must be sentencing plays phase a role in the factor — at-, reliability. 2073- guilt its which phase. different from role at 704-06. 80 L.Ed.2d

1403 improper segments egregious were so Application the Standard as to D. probability create a reasonable reviewing guidelines for These changed outcome was because of them.31 argument only- prosecutorial the effect improper argument play into when an come THE permissible argument, A III. DETERMINING SCOPE OF

has been made. “prejudicial” “per or PERMISSIBLE no matter how PROSECUTORIAL suasive,” can never be unconstitutional. AT THE ARGUMENT SENTENCING Thus, precondition examining prob PHASE improper closing able effect Georgia, jurisdictions In as in other understanding jury is an of the on impose penalty, capital the death argu scope permissible prosecutorial given only special sentence is after a hear In the context of a trial on the issue ment. ing which follows a conviction for a death- guilt, where the is asked to find § eligible crime. Ann. Ga.Code 17-10-2 doubt, beyond a case law facts reasonable proce The use of this “bifurcated plentiful subjects that should not be sentencing capital dure” for trial and argued.29 cases was first recommended the draft ers of the Model Penal Code as a means of case, however, review keeping prejudicial evidence relevant closing argument sentencing phase in the sentencing, influencing from capital Georgia trial.30 Because the prior adjudication ALI, guilt. to its hearing capital sentencing has a different § 201.6, 5, pp. Model Penal Code comment guilt, focus than a trial on we must exam (Tentative. 9, 1959). 74-75 Draft particular ine No. its characteristics order to procedure proper prosecutori explicitly ap While has been determine the extent of Then, argument. proved by Supreme Court, Gregg al we can examine the see 153, 190-92, argument in Georgia, this case to determine whether 428 U.S. 96 S.Ct. 2909, 2933-34, (1976), Whisnant exceeded those bounds. Because 49 L.Ed.2d 859 excessive, arguments precise capital sentencing we find some of his nature of the determine, finally we must in accord with determination has been the source of some above, controversy.32 appropriate the standard set out whether Because the example, attorney panel alleged prosecutorial 29. For should not hint 30. The did consider during argument guilt phase that he has additional evidence he has misconduct which Garza, produced. United States v. of Brooks’ trial and found that it did not rise to 608 F.2d (5th 1979). argue the level of fundamental 659 Cir. Nor facts unfairness. Brooks should he Francis, 780, (11th Cir.1983). State, jury, 716 F.2d 787-88 not in evidence before the Conner v. 113, 266, 276, denied, judgment reasoning We concur in the 251 Ga. 303 S.E.2d cert. - -, regard, panel in that and further find that U.S. 104 S.Ct. L.Ed.2d (1983), improprieties guilt phase at the did not affect unless facts are within the common sentencing States, in its determination. public knowledge. Tenorio v. United (9th denied, Cir.), F.2d 99 169, cert. (1968); analyze helpful 89 S.Ct. ABAStan 31. We find it in this case to comments, (2d 1982) argument, improper dards for Criminal Justice ed. entire note 3-5.9 (“It inquiry required by unprofessional then undertake the the "rea- conduct probability” intentionally argue sonable test. A need not de- court refer to or on the basis of specific arguments proper termine whether are facts outside the record whether at trial or on if, whole, improper they appeal, taken as a would not unless such facts are matters of com Washington, require public knowledge ordinary relief. See Strickland v. mon based on hu at-, experience -U.S. 104 S.Ct. 80 L.Ed.2d man or matters of which the court ("a notice"). may judicial whether court need not determine coun- take Nor should he af performance exam- firmatively personal opinions sel’s was deficient before state or beliefs Morris, ining prejudice jury. suffered the defendant United States v. 568 F.2d deficiencies”). (5th 1978); alleged a result of the Cir. ABA Code of Professional DR7-106(c). Responsibility, Such statements — inject possibly prejudicial Washington, Compare irrelevant and matter Strickland v. -,-, 2052, 2069, jury’s thereby impinge into a deliberations and 80 L.Ed.2d (1984) (“A jury’s duty capital sentencing proceeding on the determine facts rele case, however, guilt vant to the of a like the one involved in this defendant. dealing closing An initial concern in penalty phase determines conception of the sentencing jury, arguments it also cases is the emotional the role argued frequently legitimately what in which affects fashion deliv grounds for jury by ered, by prosecution a and both defense In of the Indeed, this section imposing suggests death.33 counsel. Georgia capital will discuss the opinion, we prosecutor’s character of the ar emotional argu- punishment the areas of scheme and gument here contravenes the mandate of to it. ment relevant 349, 358, Florida, v. 430 U.S. 97 Gardner 1197, 1204, (1977), 51 L.Ed.2d 393 S.Ct. A. General Considerations to the death impose the “decision sentence qualitatively be, be, appear is different reason Because death and based on rath punishments, “there is a caprice from all other er than or emotion.” See also need for corresponding Zant, 940, (11th difference Hance v. 696 F.2d 952-53 is reliability that death determination Cir.1983) (“This appeal gut dramatic specific appropriate punishment in a courtroom, place emotion has no in the Carolina, 428 v. case.” Woodson North involving penalty in a especially case 2991, 305, 2978, 280, 49 96 S.Ct. U.S. death”). This careful claim warrants atten (1976). recogni- L.Ed.2d 944 The consistent tion. special punishment a has tion of death as Georgia’s capital punishment carefully proce- led courts to scrutinize trial, its its scheme—with bifurcated re imposed. it Those dures under which is find at least quirement jury one of Eighth procedures comport must with statutory aggravating the several circum prohibition cruel and against Amendment’s stances, its determination individualized which, capital punishments, unusual decision, life or death and its mandato context, sentencing requires that sentenc- possible ry appellate review—makes ing suitably lim- discretion “be directed and particular objec “in an differentiate a case wholly ited so as to minimize the risk of evenhanded, tive, substantially rational capricious arbitrary Gregg action.” v. 2909, way Georgia murder 189, many from the cases 153, Georgia, 428 U.S. 96 S.Ct. may not 2932, (1976). penalty in which the death quest for be 862, not, however, imposed,” Stephens, Zant v. 462 U.S. require risk minimal does 586, 879, 2733, 2744, 235, perfection. Ohio, 103 77 L.Ed.2d Lockett v. U.S. S.Ct. 438 2954, (1983). But, may 605, 2965, statute 98 57 L.Ed.2d 973 251 while the S.Ct. one, (1978). sentencing objective an still sufficiently Jeopardy purposes like a trial in its adversarial format like a trial for of Double J., Clause) (Blackmun, writing majority) and the existence of standards for decision ... for — proceeding compara- U.S.-, role in Florida, that counsel’s Spaziano v. 104 with S.Ct. role at ble to counsel’s trial —to insure that 3154, (1984) (capital sentencing L.Ed.2d 82 340 testing process produce a adversarial works to purposes like a trial of Sixth Amend- not for just governing result under the deci- standards J., right jury) (Blackmun, writing ment J., sion.”) (O’Connor, majority), writing for majority). Weisberg, Deregulat- generally, See Ramos, 992,-, v. U.S. 103 463 305, California Death, ing Sup.Ct.Rev. 1983 328-60. 3446, 3456, 1171, (1983) 77 L.Ed.2d 1185 S.Ct. however, ("More point, is the fundamen- may legitimately also affects ar 33. It what guilt-in- between tal difference the nature argument gued by defense Defense counsel. determination at issue in Beck and nocence sentencing topics irrelevant the task of the penalty at the nature of the life-death choice objected validly can be to and excluded. conviction, phase.... returning 871, See, State, e.g., Horton v. 249 Ga. 295 S.E.2d satisfy necessary itself that elements of must (1982) (excluding 281 defense about particular proved beyond crime have been physical effect of electrocution because irre however, fixing penalty, doubt. In reasonable evidence), and failure levance to introduce cert. no similar from which the there is 'central issue’ 837, 1188, denied, 74 459 U.S. 103 S.Ct. L.Ed.2d J., diverted”) (O’Connor, jury’s may be attention Ohio, (1983); v. 438 see also Lockett U.S. 1030 majority): writing compare Bullington also 2954, 12, n. 2964 n. 57 S.Ct. Missouri, 430, 444, L.Ed.2d 973 (1981) sentencing (capital L.Ed.2d 270 Necessarily it will al The hears emotional issue. evidence and Florida, statutory 463 is then instructed Barclay aggra- so. about ways be See vating 3418, 3424, 939, -, circumstances. The court explained process beyond (1983) (“It entirely instruction as fol- L.Ed.2d moral, lows: legal factual and fitting for the juries play a judges

judgment purpose statutory aggravat- meaningful sentencing”). “Reason” ing role circumstances is to limit a large jury’s adequately explain cannot degree, completely, alone but not the factfind- grant mercy person to a convict decision to er’s discretion. Unless least one of statutory aggravating ed of a serious murder because of that the ten circum- exist, youth troubling personal prob stances person’s fully explain imposed any Nor can reason alone be event. If there lems. exists juror upon hearing statutory aggravating at least one reaction of a the cir- the cumstance, the particular may crime death im- facts of a described posed the tragic factfinder has a discretion specifically Empathy their detail. to decline to do giving any so without a defendant’s individual circumstance reason____[Citations making In omitted]. at the or revulsion moral affront crime, penalty, the decision as to accepted capi the the fact- reactions as bases for decisions, finder takes into consideration all circum- sentencing susceptible are not tal guilt-in- stances before it from both explanation the to full without recourse to hu Thus, phases nocence and the sentence argu man emotion. the fact that an trial. These circumstances relate both to by ment a defense counsel or the offense and the defendant. indepen has emotional overtones does not dently indict it as improper. Tucker v. at 3-4. 297 S.E.2d The United States Su- Zant, (11th Cir.), 724 F.2d 882 vacated upheld preme constitutionality Court banc, reh’g (1984). en 724 F.2d 898 See structuring sentencing jury’s discretion State, 113, Conner v. 251 Ga. 303 S.E.2d Stephens, a manner. v. such Zant 462 — 266, 276, denied, -, cert. U.S. 104 862, 2733, 103 77 L.Ed.2d S.Ct. 203, (1983). S.Ct. 78 L.Ed.2d 177 pro The (1983). priety rests primarily in the re explanation This demonstrates that the lation of its content to issues relevant to the sentencing jury phase has two tasks. sentencing jury’s concern.34 It must first determine whether the evi- supports

dence the existence of least one statutory aggravating circumstance. That Hearing Georgia’s Sentencing B. “beyond determination must be made a rea- § 97, Stephens, In Zant v. 250 Ga. 297 sonable doubt.” Ga.Code Ann. 17-10- (1982), 30(c). Georgia aggravating Supreme S.E.2d 1 If at least one circum- Court, answering question present, jury certified stance is must then exam- Court, Supreme the United States outlined ine factors relative “to the offense and the Georgia capital the “issue” before a defendant” and exercise its discretion in sen- murder, tencing jury. choosing imprison- After a between death or life conviction capital sentencing hearing may be held. ment.35 aggravating concluding appropri- statutory circumstances. Once 34. In emotion both inevitable, jury statutory aggra- found at least one we need not address whether the vating has ate circumstance, which, might present "the case enters the area of some case discretion, in which all the facts although cern, sentencing the factfinder's directed to a relevant con- are taken into considera- and circumstances" was delivered in such an excessive and 97, 1, Stephens, Ga. S.E.2d tion. Zant v. effectively manner diverted intolerable (1982) added). (emphasis Court jury’s proper its function. attention from 862, 2733, Stephens, in Zant v. 462 U.S. This is not such a case. (1983), recognized this fact and 77 L.Ed.2d 235 approved Georgia Georgia, sentencing jury scheme. in the death nonetheless In Thus, Georgia prose- phase required state law does not limit is not to limit its consideration 140 task, first the issue v. carrying out the Woodson fencing be individualized. very jury clear. The statu- Carolina, 280,

before North 428 U.S. 96 S.Ct. tory elaborated such 2978, circumstances are (1976). 49 L.Ed.2d 944 It is unconsti findings they require of fact similar to tutional for jury’s a state restrict guilt phase made those consideration of such in individualized State, 303 the trial. S.E.2d at Conner formation puts that the defendant forth task, exercise of 274. The second discre- mitigate severity of his offense. Ed- impose punishment, is more amor- tion Oklahoma, 104, dings v. 455 U.S. 102 S.Ct. Ramos, 992, 463 U.S. phous. 869, (1982); California Ohio, 71 L.Ed.2d 1 Lockett v. 999, 3446, 3451, 103 S.Ct. 77 L.Ed.2d (1983) (“once jury finds that the opinion Court’s Zant v. Ste legislatively-de- defendant falls within phens, supra, that, clear made under category persons eligible fined for the scheme, Georgia can also consider then is penalty, ... free to con- [it] aggravating evidence, reliable36 even appropriate pun- sider whether death is though statutory it is relevant to any ishment”); Stephens, 462 Zant v. U.S. at /aggravating Thus, circumstance. 103 S.Ct. at 77 L.Ed.2d at 248 ¡very exceptions,37 any few information (upholding Georgia over defend- statute about the individual defendant of and his contention discretion is “un- ant’s properly Ifense considered sentencing stage). at the Never- bridled” ' jury. theless, description jury’s some dis- cretionary punishment choice of is made A has line of cases also made clear outlining to ease possible reference law sentencing body that the may consider the sentencing concerns. appropriate dangerousness future particular of a de Texas, 262, fendant. Jurek v. 428 U.S. 96 subject most relevant to the 2950, (1976) (approv S.Ct. 49 L.Ed.2d 929 punishment choice of is the broad class of ing capital sentencing defendant, Texas statute that information about the acter, his char find, requires a imposing before and the circumstances of his offense death, is a probability that “there jury throughout made known to the commit defendant would criminal acts bifurcated trial. Consideration of these continuing violence that would constitute a necessary by Eighth factors is made requirement capital also, society”);38 threat to see Amendment's sell- California relating arguments strictly cutor to to the statu- whether or not that evidence is focused on a tory aggravating Barclay statutory aggravating circumstances. v. circumstance. Ga.Code Cf. Florida, 939,-, 3418, 3426, (1982); 17-10-2(a) State, U.S. 103 463 S.Ct. Ann. § Fair v. Ga. 245 1134, (“Unlike (1983) 868, 316, 319, 77 denied, L.Ed.2d 1147 the Geor- 268 cert. U.S. S.E.2d 449 statute, however, gia requires 986, law 407, (1980). Florida 101 S.Ct. This statutory aggravating sentencer to balance cir- allowing requirement promotes reliability by against mitigating cumstances all circumstances prepare the defendant time to defense to permit non-statutory aggravating and does not prosecution’s evidence. weighing pro- circumstances to enter into this cess”). example, urged be- 37. For death could not be constitutionally impermis- cause of irrelevant or Florida, 349, 36. Gardner v. 430 U.S. 97 S.Ct. race, religion, such as individual factors 1197, (1977), 51 L.Ed.2d 393 Court found a belief, political Stephens, U.S. etc. Zant v. 462 process judge’s violation of due in a Florida trial 2747, 885, 77 255. 103 S.Ct. at L.Ed.2d at pre-sentencing reports use of confidential as a imposing penalty. basis for death Absent an dangerousness particular of a de- future deny opportunity explain information con fendant, rehabilitation, prospects for his and the therein, tained defendant would be (z'.e., specific incapaci- are relevant to deterrence subjected punishment upon possibly based defendant), legitimate tation of the which is a unreliable insulated information from the ad capital sentencing proceed- consideration in a sentencing hearing. versarial format of the &emdash; Florida, U.S.-,-, ing. Spaziano 104 v. Georgia requires notice to a advance defendant 3154, 3163, 340, (1984). L.Ed.2d S.Ct. 353 82 aggravation punishment, of evidence in

1407 16, Ramos, 992, n. 103 463 1002 proper v. U.S. is both Similarly, inevitable. 3446, 16, 1171, respect specific deterrence, with n. 77 L.Ed.2d the jury may appropriately consider par- whether a Estelle, (1983); v. 1181-83 Barefoot ticular defendant likely is so danger- to be 3383, 3396, 896-98, 880, 103 S.Ct. U.S. ous the future unlikely and so to be 1090, 1106-07 L.Ed.2d incapacitation rehabilitated that is warrant- the ac- consideration is area of A third Texas, ed. supra. See Jurek v. gen- Even for the use justifications cepted penological deterrence, eral principally while a concern general punishment. These of death legislature, Spaziano for the Florida, — -, deter- are retribution and 3172, U.S. at justifications 104 S.Ct. at L.Ed.2d can be considered in Georgia, fixing Gregg v. rence. punishment. In deciding whether to im-’ 2930-31, L.Ed.2d 184-87, pose penalty the death particular case, in a charged (1976). Georgia jury is A appropriate it is for a jury to consider capital punish- the state’s implementing general whether or not the pur- deterrence particular in a case. It scheme ment pose of the statute would be there- served ap- imagine a more reasonable hard by. Francis, Collins v. 728 F.2d task than consideration proach to this (11th Cir.1984) 1339-40 (discussing Su- imposition of the whether or not jury of preme precedent Court concluding particular case will penalty general the need for deterrence is a consti- deterrence accepted objectives of serve sentencing consideration).39 tutional Geor- Francis, retribution. See Collins gia permits argument about penologi- these Cir.1984). (11th Translating F.2d 1322 justifications. State, cal Conner v. 251 Ga. operation an ethical into a facts (1983).40 303 S.E.2d 266 argu- Such accepted jus- consideration of ments are requiring logically relevant to jury’s proper task. punishment. Neither particular reason nor precedent tifications — suggests that we should Florida, -, raise a constitu- Spaziano v. See tional barrier to such arguments. 3174, 340, 3154, -, 82 L.Ed.2d 104 S.Ct. (“in (1984) analysis, capital final 366 Implications C. Ar- Prosecutorial legal a but an rests on not

punishment for gument (Stevens, J., dis- judgment ethical senting). previous discussion of is appropriately considered the Geor sues Thus, appropri- jury consideration jury sentencing necessarily general. is gia particular case of retribution ateness argued general (1976), It has 39. been that deterrence general do not foreclose more con- appropriately part capital not sentencing of a contrary, suggest siderations. To the cases that 'jury’s decision on impose appropriate whether or sentencing deterrence is an con- Gillers, Dies, Deciding Francis, death. Who 129 U.Pa.L. cern. See Collins v. 728 F.2d at 1339-40 1, (relying upon Rev. points 46-56 The two Grayson, related United States v. 438 U.S. (1) 41, argument 2610, (1978)). are that a sentence’s deterrent 98 S.Ct. Gregg only proper legislative effect recognized as a that meaningful decision as deterrence be a penalty concept to whether should be for enacted and some crimes and not for others. 185, thus by jury; should not be reconsidered 428 U.S. at 96 S.Ct. at 2930. A defendant (2) general that the notion of should be entitled to have the deterrence consider an is so argument inherently unprovable imposing penalty that its the death consideration in- in his jects capital an unreliable case would not have a element into deterrent effect. sentenc- ing. deterrence, Concerning inability prove Gregg accept- in the fact that the Court Gregg Georgia While v. does indicate that de- Georgia’s legislative judgment that deter- ed concern, appropriate legislative terrence is an meaningful 184-87, the ab- rence is demonstrates 2930-31, 428 U.S. at 96 S.Ct. at there is support is not fatal. Once sence of conclusive Gregg no indication in cases since it is aggravating circumstance has been found an improper sentencing judge for the justi- death-eligible, a defendant that renders requiring consider it. Cases sen- subject jury’s appropriate an for the "individualized,” fication is tencing be v. Woodson North penalty. Carolina, 280, on the correct 2978, decision 428 U.S. 96 S.Ct. 49 L.Ed.2d discuss We this case. phase of fencing deter- However, provides guideline for seriatim. proper prosecutorial each mining scope sentencing regard argument. With complains Whisnant’s first task, improper for it would be jury’s first personal belief expressions of own brief urge the to find a statu- attorney’s per- An penalty. in the death on ba- aggravating circumstance tory sentenc- opinions are irrelevant to the sonal introduced relevant facts other than the sis Morris, ing jury’s task. United States there- proper inferences evidence and the (5th Cir.1978).42 396, 401 F.2d We will Concerning the exercise of discre- from.40 of these statements effect consider has aggravating circumstance after an tion Part V. found, the realm arguments outside been sentencing e.g., recognized concerns— 2. Following expression the initial individual noted that the circumstances penalty, of belief the death rep Whisnant defendant, danger- crime future Georgia resented that the crime rate had ousness, penological jus rehabilitation and 1964, gone up since the date of the last state for the death are within tifications argues execution. Brooks that this state sentencing con- recognized realm of ment, along assertion “we being improper be- the risk cerns—run didn’t have this kind of murder ... when we they urge possibly irrele- cause captial punishment,” improper. had course, improper reasons. Of not all vant increasing to the reference Whisnant’s of funda- arguments will rise level deter rate need for crime concerned Similarly, argument mental unfairness. record evi Although there was no rence. may, core one these concerns based rate, on the crime the reference was dence conditions, in its improper certain under in crime acceptable because increase jury.41 presentation to the mode knowledge of all rea “within common however, as helpful, standards general v. United people.” Tenorio sonable true on the focusing counsel means of States, 96, (9th Cir.) (prosecuto 390 F.2d task sentencing jury. That task before reference, importa prosecution rial ground for much safe enough that is broad heroin, “the and the destruction tion is available. use of arises from the human waste which Whisnant’s now examine We knowledge), as common acceptable heroin” these sentencing light of during Brooks’ denied, 393 U.S. cert. guidelines. (1968); Georgia, L.Ed.2d 145 Gregg see 187 n. PROPRIETY THE IV. OF PROSECUTO- (1976) (noting 34, 49 L.Ed.2d 859 n. 123% RIAL IN ARGUMENT THIS CASE 1974). in from murders 1964 increase separate portions 12 complains Thus, increasing reference to an mere prosecutor’s argument of the in the sen- improper. rate not crime was (conviction Cir.1977) argument sentencing govern not does reversed because 40. Whisnant's already problem. evidence), present argued The had important ment fact not aggra- guilt phase denied, 1016, 735, were facts at the which found vating cert. 434 U.S. S.Ct. 98 54 Georgia See under law. State, circumstances (1978); L.Ed.2d 762 Conner v. 251 Ga. supra 20. note 113, (1983) (wrong prose 303 at 276 S.E.2d "go appearing cutor to the facts outside example, improper for 41. For would be matters”). lug case and extraneous argue circum- prosecutor to about individual presen- contained in a defendant stances See, Herrera, also United States v. 531 F.2d 42. report been defendant had not which the tence 788, (5th Cir.1976) (attorney may give 790 not Florida, U.S. 430 Gardner able to examine. 349, personal opinion credibility witnesses); And, about Lamerson, (1977). S.Ct. L.Ed.2d 393 United States v. 457 F.2d prosecu- obviously improper for the it would (5th Cir.1972) (prosecutor imply cannot that he using subjects argument make on valid tor to brought would not have case if defendant were jury. in evidence before not introduced facts guilty). (5th Warren, 550 F.2d United States v. is no claim is that there more crucial case. focus on Excessive the characteris- argument at- part support victim, explicit tics of the even if no link is increase in crime to ab- tributing the pun- drawn between those factors and the There no record executions. sence of sought, may improper ishment also be capital effect of the deterrent evidence of inject when the effect is to irrelevant con- punishment. sentencing siderations into the decision. See, e.g., Estelle, (5th Vela v. 708 F.2d 954 in Part III.B. of this noted As we have Cir.1983) (two witnesses, a well-known is a valid consideration deterrence opinion, widow, player football and the victim’s tes- Al sentencing jury capital in a case. of a great tified in detail that murder victim recognized has Supreme Court though the kind, inoffensive, athlete, a star scholarly de nature of the inconclusive member, church usher and choir a social held that subject, it has also bate on underprivileged children of all worker with “little or no deter has capital punishment races, college holding student down two “un murders while effect” on some rent jobs, three-year and the father of a old deterring such crimes. doubtedly” other child—when all such evidence was irrele- 153, 185, Gregg Georgia, inadmissible; legally vant to issue and (1976). 2909, 2930, object the failure of counsel to contributed link recognizing some causal addition to assistance), finding to a of ineffective cert. deterrence, penalty and between the — denied, -, 104 S.Ct. of deter general issue held that Court L.Ed.2d 195 focus- While left complex factual issue best was a rence ing dangerous, on the can not all victim be de by legislatures. It thus for resolution prosecutorial references to the victim are Georgia legislature’s decision ferred to the victim, improper. The fact that there is a appropriate punishment is properly and facts about the victim devel- cases. Id. some trial, during oped the course of the are not evi prosecutor need not adduce so far outside the realm of “circumstances therefore, link dence, prove between of the crime” that mere mention will al- An such death and deterrence. ways problematic. necessary It is not Whisnant, urging the one made sentencing decision be made in a deterrent effect of to consider the Jurors victim is a mere ab- context which the improper.43 is not penalty, straction. by em- discussed the victim 3. Whisnant attractiveness, youth, phasizing her Here, asked the Whisnant argues disposition. Brooks that these

kind person remember “the who is not here ... wholly highly were irrelevant remarks Galloway.” Carol Jeannine He then ticked prejudicial. personal off some attributes shown clearly improper evidence, i.e., for a pretty, It would be that she was 23- imposition urge old, of death year living her unmarried woman race, sex, religion, or social parents because and that she was a considerate Any reference to of the victim. person high status morals. These comments prejudicial victim, characteristics potentially personalize they such did the were only greatest with the enough be undertaken must brief that we cannot conclude that only when the reference they injected prejudicial of care or irrelevant mate legitimate issue in the sentencing relevant to some rial the decision. into sentencing jury, argument Gregg recognizes the Similarly, both the tionale in before because 43. case, argue the controversy generally did deterrence In this Brooks’ counsel over the murders, penalty cited studies inapplicability particular did not deter and death rationale's demonstrating a deterrent effect. properly question the lack defense counsel can the ra- States, F.2d mentioned the Gallo- v. United also Hall Whisnant empow- Cir.1969). jury is (5th Because the rebutting an at- way family. By way of in determin- its discretion exercise sym- on ered to tempted argument defense based prose- wrong the it is for ing punishment, prosecutor pathy family, Brooks’ the im- that discretion to undermine Galloway’s trage- cutor jury the reminded the authority, he, high or another plying that “next when it’s dy and noted that week re- careful decision already made the has sitting around Thanksgiving and are unfairly plays This kind of abuse there, quired. table, Carol Jeannine won’t be susceptibility to credit jury’s upon again.” there This true and never will be of this viewpoint. The effect prosecutor’s compelling no more than a statement was care- argument will be considered improper sig- death and its statement of the victim’s this Section. fully in Part V of nificance, func- relevant to retributive proper. penalty. the death It was tion of complains 6. Brooks next that the prosecu 5. The discussion of the improperly jury’s prosecutor diluted the practice seeking tor’s responsibility by arguing that it sense during past years im few cases “responsible” for Brooks’ would not be proper. unsupported That claim was Arguments the task death. that trivialize and, best, evidence irrelevant. Conner example, argu sentencing jury of a —for State, (“The portion S.E.2d at suggesting appellate courts will ments prosecutor’s argument referring to his any correct errors —are barred under Geor prior experience frequency criminal and the State, gia Fleming law. 240 Ga. sought he had the death which prosecutor’s ref S.E.2d and, supported by any was not evidence participants of other erence to role moreover, was not relevant to issue system, justice e.g., the criminal the investi argument the case. The therefore was im gating police, grand jury, pros and the Furthermore, proper”). improperly im staff, according Brooks' inter ecutorial plied jury prosecutor’s of attempt pretation, was an to undermine already judgment fice had made the careful responsibility awesome jury’s sole for the most other murder above by suggesting death decision life or cases, penalty. warranted the death the decision was shared with others respect, argument to a is similar justice system. criminal prosecutorial argument at to the ef trial However, apparent purpose the more only prosecute guilty.” “we fect that argument simply that Whisnant’s argument Such an clearly improper be responsible for his Brooks himself was cause: argued plight. He that Brooks was is, least, The remark at the an effort to man, grown doing on knew what he was lead the to believe that the whole crime, day and that him- governmental already had establishment self—not the investigating police, appellant guilty determined grand jury, prosecutorial staff or the them____[Citation evidence not before responsible punishment. for his —was Or, arguably, be con- omitted]. Such an improper. was not pre-trial admin- strued to mean that as Although attempt by

istrative matter the defendant has been jury’s to dilute a sense of responsibility charged would guilty found else he deciding clearly the case improp- would be prosecuted been and that the er, the best that Brooks is ei- can administrative level determination make here challenged is that the remarks binding highly upon ther or else ambiguous.44 persuasive Court to it. has Brooks, 44. interpretation suggested by argument The with the thrust of Whisnant’s odds being speculative, jury’s completely emphasized addition to at the seriousness of which remarks, Although the as inter should not however, “a court directed, that Brooks, urged by intends an in the manner prosecutor preted that a lightly infer damag- the more obvi clearly improper, to have its most would be remark ambiguous through argument is not. sitting interpretation of the jury, a meaning or that ous ing exhortation, mean- anticipating that a defense Correctly will draw lengthy damaging bad,45 of less death Whisnant plethora ing from that Donnelly v. DeCkristo- himself believed in argued that Brooks interpretations.” 647, at 1873. at 94 S.Ct. penalty. The thrust of foro, the, interpreta- improper Thus, Galloway in we discount execution of that Brooks’ by proce Brooks. urged more than a tion much horrible a manner demonstrat durally proper, legal execution him- argued that Brooks 7. Whisnant Fol penalty. in the death Brooks’ belief ed penalty, in the death as evi- self believed Donnelly v. De- lowing command of Galloway, killing of and not- by denced 647, 94 S.Ct. at Christoforo, 416 U.S. lawyers not have or a ed that the victim did 1873, lightly infer “a court should not that safeguards. procedural judge other ambiguous an prosecutor a intended was an asserts that this comment VBrooks damaging mean its most to have remark negative reaction attempt provoke jury that the understood ing,” we doubt exercis- against merely him because he was suggested by improper way remark rights he was ing procedural to which Brooks. entitled. Arguing against the wisdom improper urge that a crimi It is Brooks, on Whis imposing a life sentence of constitutional nal defendant’s exercise dangerousness focused on the future nant rights ground discrediting his de suggested that defendant. He See, e.g., California, fense. Griffin pris might guard kill a or a fellow Brooks 14 L.Ed.2d 106 U.S. he possibility He noted (Fifth oner. even (1965) right Amendment to remain daughter might escape and asked “Whose silent at trial commands that remarks next time?” Similar it be will judge not make adverse comment fundamen argument found right). part exercise of the of an defendant’s were about Zant, court in Hance v. tally by unfair Similarly, wrong imply it is Cir.1983). (11th Although by providing system coddles criminals them 696 F.2d dramatic, they were arguments were procedural protections more than their these impor the consideration capital sentencing jury’s directly A victims. relevant threat to by would remain tant deliberation should be colored whether Brooks demon- discussion above society.46 considerations. Our such speculative possibility prison escape. making decision. life or death its task Ramos, crystal S.Ct. clear responsibility also made jury’s California and, (1983), argument, more counsel’s the defense instructions, improper Court held that it was not to instruct importantly, the trial court’s their decision to Governor could commute a informed which parole given impris- sentence of life without to a de- mercy result in life would recommend Brooks, fendant in a case. The Court found that recom- if onment for mention of commutation did not turn the sen- re- penalty, court was the death mended tencing speculative inquiry into a on whether defendant quired law to sentence eventually the Governor would release de- death. fendant but instead invited "the to assess proba- whether the defendant is someone whose ble future behavior makes it undesirable that he alia, argued, the Biblical inter defense 45. not kill.” permitted "Thou shalt society." commandment: to return to 463 U.S. at -, 77 L.Ed.2d at 1182. The prison escape argument that, dangerousness likewise did not turn suggests future 46. prison sentencing securi- aside, argument based into a decision on wrong to make it is there, you’re going stances are proper get consideration is a such strates electric chair.... sentencing jury’s decision. element 262, Texas, See, 428 U.S. e.g., Jurek Arguments general about special or deter- (1976). 2950, legit- A 49 L.Ed.2d 929 S.Ct. may rence considered jury. dangerousness argument is imate future jury The reminder to the that “the buck merely improper because not rendered stops you today” appropriate was an possible refers to victims. reference to the fact that the must fu- arguments about Brooks’ make the ultimate decision. appropriate infer- dangerousness were ture jury. record from the before ences analogy penalty Finally, the the death appropriate in a killing war was insofar death, imposing implied as it while clearly improper for It was difficult, sanctioned the state is times argue that death should be Whisnant (national compelling se- because reasons cheaper it is than life im imposed because crime). curity deterring While the The factual assertion was prisonment. harsh, “enemy society” phrase was we important, completely unsupported. More application seriously do not fault its to one accepted legitimate justifi is not as a cost grievous crime is “so an affront to whose Gregg v. penalty. See for the death cation only adequate response humanity that the 187, at 2931 Georgia, 428 U.S. at 96 S.Ct. penalty of death.” Gregg be the (accepting deterrence and retribution as 184, at 2931. Georgia, S.Ct. justifications penalty). cannot impose that rea exhorted to death for acceptance part Our argument of this improper argument be ana son. This will cannot blind us to its obvious faults. The lyzed further in Part V. principal analogy fault of the is that a capital sentencing jury Georgia under the statutory lengthy discussion scheme is bound to exercise 10. Whisnant’s broad analogy of discretion its and his determination of a “war on crime” of the just punishment. This proper simply and discretion is contains both jurors to soldiers analogous to the role of a soldier who improper elements. enemy. is ordered to kill the Using the Discussion of crime the Columbus metaphor, coupling soldier and it with a community, well within the common knowl- challenge jurors’ patriotism to the —“When edge jury, appropriate part was ..., good job killing did a [the soldiers] Whisnant’s about the need for gave we decorated them and them cita- point deterrence. The of this discussion tions”; 17-year “if can young send a old home at the was driven close “war soldier, enemy man overseas to kill an speech crime” when returned Whisnant you asking go too much to ask back and following conclusion: penalty vote for the death in this case bring can the death You back against William misrepresents Brooks”— Brooks, you you can tell William and charged by carry task law to him, every can tell other criminal like See, out. e.g., States, Viereck v. United you 236, that if come to Columbus and Musco- 561, 318 U.S. 63 S.Ct. 87 L.Ed. 734 crime, County, you gee commit a The main thrust of death penalty jurisprudence since punishable Georgia, Furman v. those crimes that’s it’s one of 408 U.S. death, circum- 33 L.Ed.2d 346 aggravating if the denied, ty, part executed), pointing of an out cert. unless potential (1979). Although danger. State, for future See Redd v. (not concerning improper 242 Ga. es S.E.2d 383 evidence there was no record argue by claiming escape possibility cape, death sentence that de- fact that knowledge. public fendant will have "another chance" to do harm the common within (1972), guided conclude, however, the has been need for discre- dice. We that the chal- sentencing body’s in the tion individualized lenged reference was not a racial slur. capital consideration of the defendant. had Witness Marvin Brown testified that See, Stephens, supra. Zant v. e.g., Con- Brooks, crime, telling Marvin the about jurors ceiving of the as soldiers undermines had used the term “hustle” to indicate that discretionary required the crucial element Thus, the he had robbed victim. Whis- Eighth Discussing the Amendment. the . language” nant’s reference to “their was broad “criminal element” seeking and then and, simply quoting by implication, Brown death for Brooks because “he’s a member Brooks. of the criminal element” undermines the requirement sentencing consideration V. WAS THE SENTENCING HEARING by introducing individualized im-

be UNFAIR? FUNDAMENTALLY proper suggestion that Brooks be killed merely he is a because criminal. these preceding In the section we identi respects, argument the “war on crime” troubling segments four of fied Whisnant’s V, improper. In Part we will consider fac- expressions personal argument of be —his mitigated argument tors that and care- capital punishment, lief in the discussion of fully weigh impact jury. its on the policy rarely prosecutor’s seeking of (the penalty “prosecutorial exper

the death argument), the claim that Brooks’ tise” 11. analogized Whisnant taxpayers money, death would save and the body to a “cancer on the society.” speech. “war on crime” dramatic, While metaphor directly went appropriate improper argu- concern To determine whether the for whether sentencing Brooks would continue to be a threat to ments rendered the fundamen- society. unfair, jury sup The evidence before the tally we must evaluate whether ported that, probability Whisnant’s assertion that he would there is a reasonable dangerous. arguments, those the death verdict for given. inquiry have been This

would not improper re- involves an evaluation of the Finally, Whisnant described 12. proceed- marks in the context of the entire follows: the facts as ing, pursuant to the standards described along pistol just walking with He was opinion. first consider Part II of the We “well, I’ll pocket, and decided make arguments. severity improper hustle,” language, his lan- to use their guage. prosecutorial primary concern is Of argument im- argument. The expertise was a racial Brooks claims this remark prosecutor had suggested that the properly slur, highlight the the word “their” used to cases and selected all murder canvassed jury. he was to the all-white fact that black deserving particularly this one as brief, infringing upon penalty, Even if thus use of race death as a factor in closing argument decisionmaking and im- discretion obviously jury’s would im- proper, invoking prosecutorial United mantle properly States ex Haynes rel. McKendrick, (2d Cir.1973), significant 481 F.2d 152 authority.47 Recognizing the prejudice, we nevertheless would great potential for potential preju- for Although per- Furthermore, expressions Whisnant’s brief instant case. the fact that improper sonal belief in the death Georgia legislature has enacted a sen- reason, i.e., for the same concern that state- tencing speaks loudly properly statute prosecutor carry ments weight will additional punishment’s validity. Whisnant’s brief jury, with the believe their effect merely accepted legisla- statements echoed that insignificant. The claim "I believe in the irrelevant, judgment. tive While were not penalty” added little to Whisnant’s vocif- prejudicial. capital punishment erous some, sionmaking responsibility, adverse whether mitigation of the

point to simply did not man lives or this man dies.” His impact. from began acknowledgement he case had selected this with the state cases; rather, ex- he among the mass of had them the decision jurors before hardest his reasons pressly lives, request laid out before their and ended ease, i.e., selecting because impose imprisonment. life horrible, because the evi- crime itself was importantly, judge’s Most instruc- .guilt overwhelming, and be- dence of was sentencing jury explicitly to the tions and not be Brooks could rehabilitated. cause placed responsibili- the unambiguously sole jury the revealed to the Thus jury. paragraph, the the ty on first the underlying on which his selection the facts charged your duty judge “it is now to make made, then deter- jury and the could was the certain decisions that will affect sen- validity underly- for itself of each mine the you flatly He stated “if tence.” then that degree each ing factor the to which and penalty, then recommend the death the appropri- indicated that death was factor by required court is law to sentence the ate. death____ hand, to On the other defendant argument the was impact The adverse mercy can see to recommend for you fit ... by repeated emphasis further alleviated the defendant, your if the this should be find- proceeding jury, and entire that the ing, required the then that event court else, anyone prosecutor or was the to the to life law sentence defendant to as vested with the awesome decision imprisonment.” The live die. whether Brooks should or reasons, foregoing the For satis- argument itself was thrust Whisnant’s misper- jury that the labored under no fied beginning of his to this effect. At the role; clearly ception jury as to its the un- “you’ve he argument, jury advised the that responsibili- derstood that it alone bore the punishment got to decide kind of fits what ty deciding live for whether Brooks should crime, gets imprison- he life that whether however, acknowledge, . die.48 a lin- or We ment, or death in the chair.” electric gering jury over whether the was concern Throughout, argument his was couched prosecu- influenced extent the to some impose the urging jury to terms he, suggestion upon tor’s that based his point penalty, at one he advised death and knowledge of committed in wider crimes you jury stops that the “buck county, particular had chosen this case today.” argument He concluded eligible death. for room, asking jury go jury consider all the facts and circumstances argument The “war crime” is also on bring that back a verdict troubling. improper aspect of the ar- put chair. Brooks be to death electric jurors gument suggestion was the that the forego should an individualized considera- also it unmis- Counsel Brooks made choose tion of Brooks’ case instead sole takably jury clear to the that it had the merely part he execution because was deciding responsibility whether terrorizing element” the broad “criminal get imprisonment death. should life society. Although the “war on American Specifically implication responding argument did contain references crime” jury, grand that the Whisnant’s appropriately focusing particu- more on prosecutor, the executioner and others jury, fact that its lar case before the responsibility jury, shared with the defense diametrically op- improper suggestion was pointed people counsel out: “None of those capital sen- decisionmaking requirement posed re- that he named had the tencing careful be individualized demands sponsibility, only you twelve that deci- attempt department judge certainty point dispels police con- as an 48. Our IV(6). jury responsibility. Whis- See Part cern about whether understood dilute its sense of grand jury, prosecutor, nant's discussion of the circumstances, jury even jury whether the cor- and then if the scrutiny to determine n sentencing duty. rectly beyond understood its found reasonable doubt that there circumstances, aggravating jury were of Whisnant’s The main thrust have to decide whether recom- would jury impose not to exhort judge expressly a life mend sentence. mem- merely Brooks was a because penalty that, charged arriving at its ex- Whisnant of the criminal element. ber determination, suggested it should consider all of the pressly imposed throughout stages should be because received evidence both horri- that Brooks committed was the crime trial and all facts and circumstances ble, guilt evidence of his because the mitigation aggravation. overwhelming, no Brooks showed because emphasis We therefore conclude remorse, chance and because there was no proceeding adequately of the entire insured He re- Brooks could be rehabilitated. its would base decision on a jurors they indicated minded the had consideration of the individualized facts be- for the dire that could vote at voir it, and not the basis of the incon- fore on and penalty if the facts circumstanc- suggestion membership mere sistent the warranted it. Whisnant es of case in the broad criminal element merited exe- by argument saying his “we’re concluded cution. again go jury asking you to back to the deliberate, and to and to talk about room Finally, that an execution of case.” the facts and circumstances undeniably tax was im- would save dollars Similarly, closing for the potential proper. Its effect was somewhat inapplicability of defense revealed the brevity by minimized of the comment analogy. The “war on crime” Whisnant’s by and Whisnant’s own tentativeness pointed out that a soldier defense counsel asserting it.49 decision, make a while the is not asked to Although we conclude that these cannot in this vested the deci- jury case was with had improper arguments prejudicial few no sionmaking responsibility as whether that the jury, effect on satisfied die. Brooks should live or The defense prejudice was not severe. argued guilt that the evidence of was also overwhelming, pointed kidnapped, and to the evi- Brooks not The evidence that pos- robbed, Galloway of Brooks’ harsh childhood as raped dence killed was and gone explanation why may of he sible overwhelming.50 jury The sentencing astray. “outrageously was found that murder horrible, wantonly vile, or inhuman.” or importantly, judge’s Most instruc- robbery, kid- armed Brooks’ crime included on the tions to focused attention murder; rape, mur- napping, as well of individualized facts and circumstances by and preceded physical both der was charged He that their first re- the case. n abuse, psychological and victim sponsibility to determine whether slowly there mitigating to death. While any aggravating were left to bleed there IV(7) accept very strong evidence of we declined Brooks’ and malice. There was In Part 49. remarks, malice, ambiguous though interpretation which we have con- of and even intent argued improper attempt opinion an Brooks were of this that we in Section One cluded negative provoke of reaction his exercise overwhelming there was cannot conclude that right procedural safe- his guards. to trial and other prosecutor’s and malice. The evidence intent were of the Even if the aware evi- not because of such errors are dence; harmless improper brevity interpretation, of the re- sufficient, guilt undisputed is never even context, marks, as us that well as the satisfies However, itself, justify outcome death. jury. improper there was no influence on likely might be more based on weak evidence based errors than one have been affected case, overwhelming there was evi- Washington, strong very Strickland v. case. robbed, raped, kidnapped, dence at-, 80 L.Ed.2d -U.S. killed, include all and these elements 699; II.C., supra, see discussion at Part n. 27. except intent to kill of the several crimes crime, in APPENDIX A mitigation was evidence suf- testimony that Brooks the nature of frequent OF THE COURT a harsh childhood beat- CHARGE

fered step-father, we conclude ings by cannot gentlemen jury, Ladies the evidence as that the would view Jury Muscogee County for the Grand commanding. Although the instant case is August term of found and returned among egregious cases in the most Court, charging into this Bill of Indictment imposed, which the death has been accusing Anthony William Brooks with among egregious. the least neither is it The indictment the offense of murder. accused, says County light all facts and cir- Considered Georgia, Muscogee, in the State of did on improper argu- cumstances of the day July, unlawfully, the 15th ments, mitigated by which were most of one, aforethought, kill and murder malice by the arguments other and instructions Galloway, Carol Jeannine then and there court, undermine were not sufficient contrary shooting pistol, her with a confidence in the outcome. We are satis- order, State, good laws said im- that the death verdict here was fied peace dignity and the thereof. sentencing posed because of valid consider- ations, that there is and we thus conclude Now, indictment, Count Two of that la- probability prosecu- no reasonable gentlemen, says that the dies and Grand changed torial the outcome. misconduct aforesaid, aforesaid, on their oath Jurors sentencing phase was not funda- Brooks’ the citizens of the name and behalf of mentally unfair.51 Georgia, charge and accuse William Antho- ny kidnapping, Brooks with the offense of reasons, foregoing the For the district says count of the indictment that for this grant of correctly court declined to the writ accused, Muscogee, County the in the of corpus ground prosecuto- habeas on the of day Georgia, and of did on the 15th State sentencing phase. the rial misconduct at 1977, unlawfully July, of abduct and steal one, away Galloway, and Carol Jeannine SECTION THREE: CONCLUSION Galloway did hold the said Jeannine Carol One, For the stated in Section reasons will, against authority her war- without or judgment deny- the of the district court in rant, Anthony Brooks and the said William ing corpus habeas relief on the Sandstrom bodily injury upon did inflict the said Carol is remand- issue REVERSED. case Galloway holding her Jeannine while ed to the district court with instructions to authority, by against her will and without grant corpus re- the writ of habeas with her, raping murdering contrary to the and spect only, murder malice conviction order, State, good the laws of said the upon affording conditioned the state’s dignity peace and the thereof. Brooks a new trial. indictment, Now, Three of that Count Two, For the reasons stated Section gentlemen, says the ladies and Grand judgment denying the of the district court aforesaid, aforesaid, on their oaths Jurors corpus prosecutorial habeas relief on the of the citizens of in the name and behalf AFFIRMED. issue is Georgia, charge and William Antho- accuse ny rape, of for this respect ap- to the other issues on Brooks with the offense With says ac- the indictment peal, panel opinion we the AF- count of reinstate cused, Muscogee, and County in the of court’s denial of ha- FIRMING the district day of Georgia, did on the 15th corpus ground. on each State of beas relief arguments persist, pursue improper or other the tions if such does not condone 51. Our decision conduct, case; rather, improper arguments identified in this sanctions to eliminate such pro- sentencing phase conclude do not render the especially of ceeding fundamentally with unfair. A court cases. supervisory powers might reverse convic- well beyond reasonable before a doubt a verdict guilty of would be authorized. unlawfully carnal knowl- July, Gallo- edge person of the of Carol Jeannine Now, gentlemen, ladies and a reasonable female, forcibly against way, and her a exactly says, doubt means what it is a State, will, the laws of said the contrary to reason, upon doubt that is founded and it order, dignity peace and the there- good the evidence, may grow out want of And, of. requires the law evidence. while the indictment, ladies and Count Four of prove guilt the State to accused of the Jurors gentlemen, says Grand charged beyond a the crime reasonable aforesaid, aforesaid, doubt, their oath the require yet the law does not Georgia, guilt and of the citizens of prove name behalf State to of accused to Anthony charge certainty. and William an absolute nor mathematical accuse robbery, for this the offense of armed with doubt, gentle- A reasonable ladies and says indictment ac- count men, doubt, imaginary not a fanciful cused, County Muscogee, and doubt, doubt, conjectural specula- nor a day 15th Georgia, did on the State doubt, tive and neither does it mean a 1977, unlawfully by use of an July, possibility that the defendant be inno- pistol, wit: take from weapon, to offense But, you, cent. as I have stated to it is a presence and immediate possession upon reason, doubt that is founded and Galloway, Jeannine intent to Carol juror such a doubt that a conscientious same, twenty dollars lawful steal honestly seeking would have who in the value money of the United States thoroughly truth of this after evaluat- $20.00, model, yellow, two- and one 1977 ing testimony, the evidence door, thirty- Fiat of the value your wavering automobile mind doubt that leaves truth, hundred, twenty-eight sixty dollars six unsettled as what is. cents, State, object legal investigations, of said ladies and contrary to laws of all order, gentlemen, discovery is the of the truth. good peace dignity and the thereof. Now, credibility of the witnesses is a Now, gentlemen, to that in- ladies and by you determined under the matter to be dictment, each count of the indict- and to You are the sole instructions of Court. Court, ment, this comes into and defendant credibility the judges of and the exclusive guilty. of not indict- plea enters witnesses, determining the of the and evidence, it should not ment is not and be witnesses, you may con- credibility of the by you. The indict- considered as evidence the circumstances all facts and all sider the ment, plea together the of with defendant’s of this manner of case. witnesses’ you, ladies guilty, forms the issue that not intelligence, their means testifying, their impa- and gentlemen, have been sworn knowing and the facts to opportunity and pass upon. testified, try neled to and to the nature of the they have which testified, they prob- the facts to which the upon enters trial of This defendant testimony, ability their improbability of or presumption of innocence this case with the interest, interest, and also or want of their favor, presumption remains in his and credibility, insofar as personal their throughout him enshrouds him and you upon legitimately appear may same case, and unless the the trial of this until of this case. trial your presence produces evidence in State you of hearing sufficient to convince and there Now, gentlemen, should ladies and of the crime guilt of the accused conflict between appear you to be a charge witnesses, charged. makes the set it be The State would testimony of can, you of criminal bill of to reconcile your duty, out each count this if indictment, speak upon every witness rests to make and the burden conflict so as no truth, perjury to impute so as to by proof the truth of and State establish however, gentle- If, ladies and witness. allegation in the indictment every material peached by disproving the facts testified to men, by witness, by proofs you it, thus it or of contra- cannot reconcile then dictory duty previously by statements your would become to believe that made witness, witnesses, you or whom witness on matters relevant to the those witness’ think to credit testimony most entitled and belief. and to this case. Statements Now, gentlemen, ladies and in- criminal made out of and not under Court oath are being tent every an essential element of evidence, are to but be considered crime, question it is a of fact to be deter- by you, gentlemen, ques- ladies and on the by you mined whether such intent existed impeachment, discrediting tion of or in the mind of defendant at the time of credibility witness attacked. When the alleged crime. Intent can be estab- attacked, by as witness effort to evidence, by lished but it must be evidence impeach by him of the efforts the satisfy your which beyond will minds points out, you, gen- Court ladies and then may reasonable Intent be doubt. shown in tlemen, credibility become the triers many ways, gentlemen, provided and ladies sought impeached, of the witness be and you find that it existed from the evidence by of the witness or witnesses whose testi- produced you during before It trial. mony may the attack be made. You are to may proven be inferred from circumstanc- weigh opposing testimony, ladies and es, defendant, byor acts and conduct of the gentlemen, say you and at last whether will presumed or it be when it would be testimony discredit witness necessary the natural consequence sought to impeached consequently simply layman’s act. Stated lan- give credit way to that introduced guage, gentlemen, ladies and criminal in- impeachment, you or whether will discredit simply tent means intent to commit an way impeachment, introduced act which the Georgia laws State of testimony and credit the of the witness prohibit and forbid. attacked. Now, you, gentle- I ladies and instruct words, gentlemen, In other ladies it men, testimony given by has been your province, under exclusive all the certain who in witnesses law termed attendant of this circumstances experts, and in this connection I instruct has, determine whether or not a witness you that in such as this being cases one successfully impeached, has not been tried, permits law evidence of men where his unworthiness of credit is abso- expert in opinions certain lines to their your minds, lutely ought established he knowledge particular derived from their believed, your not to it would be matters, yet weight the ultimate which is duty disregard testimony of that given testimony to be expert of an witness, corroborated, in unless it is which question witness is a be determined witness, you may being case believe the you, gentlemen jury. ladies and of this matter, course, gentlemen, ladies and words, gentlemen, other and ladies the tes- always you for whether not to determine or timony expert, any of an like that of other has, a not been in witness or has fact witness, by you given is to received be and impeached. given The credit to be to wit- weight such you properly as think it is impeached for testimony nesses’ where entitled to. not You are bound or conclud- contradictory statements made out of ed, by ladies gentlemen, opinion and strictly you, Court shall be ladies and witness, testimony any expert of or other- gentlemen, to determine. wise. Now, Now, you I that gentlemen, instruct when witnesses ladies and direct evi- appear presumed immediately points to testify, and are to dence is that which speak truth, Indirect or circum- by question and are to be believed at issue. you only impeached pro- unless in some stantial is that which tends to manner evidence law, by proof of various by vided or otherwise in the issue discredited establish your facts, consistency, judgment. may A im- their witness be sustained

guaranteed himto the Constitutions of And, you I instruct the United and hypothesis Georgia, claimed. States the State of is, silent, right a conviction on that his to that in order to warrant remain that he evidence, proven facts anything might circumstantial understood that he say hy- with consistent in against shall not be could be used a of Court Law guilt, every him; exclude pothesis of but shall that he understood that he had the hypothesis save of other reasonable that right say nothing might any way that guilt him; of accused. right and incriminate that he had the choice, ap- to have of I counsel his or one Now, gentlemen, instruct ladies and pointed by the State to advise with him person guilty not be found you a shall prior making any during statement and by misfortune or any of crime committed statement, making further, satisfactorily appears of and accident where it scheme, you must no criminal or determine that the defendant un- you that there was intention, negli- rights criminal and undertaking, or or derstood these intelligently gence. waived them. Now, gentlemen, ladies an- and there’s says The law that all admissions should your I other rule law that call attention care, be scanned with and confessions of to, flight, any, is if and and that similar guilt great should be received with caution. acts, proven, if from which an inference of alone, corroboration, A without confession drawn, guilt may may and these be not in law upon would be sufficient which by you. flight, But considered ladies and to base a conviction. Corroboration would gentlemen, subject explanation. is your be such and facts circumstances as weight given it, you, whether to be ladies mind would tend connect the defendant gentlemen, and draw an inference of will charged; proof as crime or guilt consciousness of from it not doubt, beyond corpus delicti a reasonable question must strictly you deter- gentlemen, that is and that the crime ladies gentlemen, mine. for you, It is ladies and committed, be, itself in fact flight, to determine whether there was if necessarily not sufficient corroboration proven, such been and if so it has whether does fix a confession. law not guilt

was due to sense of or from some you, necessary, amount of corroboration reason, if from rea- other and some other judges gentlemen, and ladies son, no inference hurtful or harmful to this sufficiently evidence corrob- whether other by you. defendant shall drawn justify orates a confession to conviction. gentlemen, State Now, and ladies properly find was confession you If there denies, contends, the defendant which evidence, made, and other corroborated amounting statement made a the defendant necessary degree proof to convict is you, ladies It will be ato confession. guilt of you be satisfied of the must testi- from the gentlemen, determine beyond this accused a reasonable doubt. made defendant mony whether defend- Now, gentlemen, this ladies and amounting a confession. an admission of Indictment Bill that, charged ant gentle- ladies You will determine you I offenses, instruct multiple testimony have heard with men, you from make a you must your deliberations To make a trial this case. during the or innocence guilt evidence, must determination admissible confession indepen- made, indictment voluntarily to each count freely and have been other separately from dently by by being another induced without one, In count indictment. benefit, counts by the remot- hope or slightest of is defendant gentlemen, and ladies you, And in order injury. est fear of The murder. of the offense charged with to find such gentlemen, ladies and says that a Georgia of State freely and law been thus statement unlawful- when he murder person commits determine made, must also voluntarily you ex- aforethought, either with malice ly and rights fully understood accused Georgia says person

State of that a com- rape knowledge mits when he has carnal of anoth- implied, the death press or causes forcibly against a female and her will. Express malice is that being. er human knowledge rape Carnal and occurs when unlawfully to take intention deliberate any penetration there is of the female sex creature, a fellow which away the life of organ by organ. the male sex capa- by external circumstances manifested implied, the proof. Malice shall be ble of Indictment, In count four of this Bill of provocation considerable says, when no law gentlemen, ladies and this defendant all the circumstances appears, and where charged robbery. with the offense of armed and ma- killing an abandoned show Georgia says The law of the State of that a lignant heart. when, person robbery commits armed law, presumes gentlemen, ladies and theft, the intent to commit he takes the every homicide to be malicious until the property person of another from the or the contrary appears from circumstances of al- presence immediate of another use of an leviation, justification, it excuse or and weapon. says, offensive law further upon the accused to make out incumbent gentlemen, ladies and that the offense of your satisfaction un- such circumstances robbery by intimidation shall be lesser they appear produc- from evidence less included of arm- and offense offense against ed him. And, robbery. says per- ed the law that a gentlemen, that you, I instruct ladies and when, robbery son commits with the intent legal necessarily is not ill will or malice theft, property to commit he takes the hatred, intent to kill a it is the unlawful person another from the or the immediate being justification without or miti- human another, intimidation, presence intention, gentle- which ladies and gation, threat, coercion, by placing use of or or however, men, must exist at the time of the person such in fear of immediate serious killing alleged. as Under the law it is the bodily injury to himself or another. The in mind purpose fixed and deliberate intimidation, robbery by offense of ladies unlawfully away slayer take the life gentlemen, and is a lesser and included being of a human under circumstances that robbery. offense in the offense of armed mitigate, justify the law would neither nor necessary the law it is not excuse. Under Now, gentlemen, ladies and as I have time; for a considerable should exist you, you stated to must make a determina- just if it should exist for one under the law guilt tion of the or innocence of the defend- moment, if ensue in con- and death should sepa- ant on each count of the indictment pur- sequence of such fixed and deliberate rately independently and of the others. pose, killing would be murder. your If to all four verdict be identical as gentle- legal contemplation, ladies and indictment, you may counts of the then men, person may form the intention of state, “We, jury, find the defendant instant, doing particular act at a com- some guilty, “on guilty thus—” either or not all act, regret mit the it as soon as it is four counts.” If it be different as to one done. count, gentlemen, ladies and as distin- Now, two, gentlemen, in count ladies and count, guished you from another then must Indictment, in this Bill of this defendant is you particular find count. state how charged kidnapping. with the offense of Now, you you if have re- believe—after Georgia says The law of the that a State body your tired and selected a member person kidnapping commits when he ab- foreman, give you the instructions I away any person ducts or steals without apply separately to each count of the indict- warrant, authority lawful and holds such ment, guilty of you if believe the defendant person against their will. indictment, count of the charged the offense as In count three of the ladies indictment, you beyond if gentlemen, charged believe this defendant is doubt, you would be autho- rape, with the offense of and the law of the reasonable then HILL, Judge, JAMES specially C. Circuit concurring: him, in event the and that rized convict be, “We, the would your of verdict form my the For reasons stated concurrence guilty.” defendant find the jury, (11th Kemp, in Drake v. 762 F.2d indictment, Now, of the count four as to Cir.1985), judgment I concur in the defend- wherein this gentlemen, ladies and I the jury court. also observe that instruc of armed the offense charged is ant given may in this well tion case have violat the that defend- robbery, you if determine Montana, ed Sandstrom of the offense armed guilty is of ant (1979), S.Ct. L.Ed.2d even indictment, if robbery charged in the as perceive without what I to be the extension as to entertain a reasonable doubt you accomplished by of that ease this court in offense, you then of guilt of that course/ 1515, (11th Kemp, 752 F.2d Davis Cir. acquit of you If him acquit him. should 1985) (en banc), and the Court you robbery, armed then offense of the — Francis, U.S.-, in Franklin v. go whether— further and consider would not the defend- determine whether or and robbery guilty of the offense of ant is- law, IAs now understand the I concur in is intimidation, you I’ve which as stated conclusion the instruction was not in the offense included offense a lesser and spite my apprecia- harmless. I do so in robbery. you believe Should of armed Judge tion of the wisdom of Kravitch’s those circumstances under defendant dissent on this issue. robbery intimi- offense of guilty of the The dissent reasons that when one who dation, beyond you should believe and rape produces has committed violent then course, doubt, then of as reasonable pistol, pulls aims it at the victim and back your the form of verdict would that count the hammer there can be no conclusion be, “We, guilty jury, find the defendant that, trigger available but when the robbery by of the offense of on count four squeezed pistol from bullet intimidation.” Now, victim, shooting gentlemen, you propelled into the ladies should guilty any reasoning believe the defendant is not intentional. This imbedded charged offense counts that, long good ago, led trial sense indictment, indictment, in each count person may judges juries to tell that a you or should entertain reasonable doubt presumed to intend the natural conse- guilt charged as to his the offense as quences of his or her deliberate acts. Sev- count, course, your then of it would be “lawyering” eral have decades adroit him, duty acquit and in that event brought point us where that reason- be, “We, of your form verdict would longer ing permitted. no jury, guilty.” find the defendant not furthermore, In this we do not have retire, you you I ask and after have producing, just pointing evidence— verdict, unanimously agreed upon your la- pistol drawing back hammer on gentlemen, upon dies and enter it back discharge. prior to its The evidence which space of the Bill of Indictment events, sequence established that you provided pur- will-find there for that brought peti- petitioner’s confession, itwith convenience, pose your your and for that, after deliber- contention tioner’s it, it, sign to date and return foreman acci- preparation, acts an unintended ate you space it into If need additional Court. discharge. to cause the dent intervened other than back of the indictment Thus, petitioner which the words of the suggested, you may the form I have use upon which his deliberate acts established space available on the back shooting could the conclusion of intentional indictment. his assertion be based contained also Please time to the retire at this room, contrary. gentlemen. ladies and against Judge Kravitch resolves it jurists recognized have years,

Over the petitioner, presumably by reasoning, as so of intent need not be conclusion that a reasoned, jurists many other contrary eminent if the acts drawn from deliberate person may presumed to intend that a Thus it was the evidence. appeared from probable consequences of the natural and usually subject on this instructions If acts. it is unconstitutional his deliberate presumption “could be that the cautioned that, I permit juror to do conclude rebutted,” if defend- not be drawn need reluctantly that I not. contrary, or to the produces ant evidence to the same effect. Yet admonitions other apply- I that I find the harm confess entirely satisfactory. They not instruction, these were reasoning ing the of Mann to the de- implied that the burden shifted acknowledge and I that the Mann instruc- contrary to the produce tion, it, evidence fendant like are now condemned. and those conclusion. Evi- of the otherwise sensible harm can apprehend I that if the be found appear instructions, in contrary might well reasoning dence to of those The defendant is prosecutor’s appear today’s jurispru- case. must in a fortiori Yet required produce evidence. dence. never right do Therefore the he has the so. KRAVITCH, Judge, concurring Circuit rebut; not be told that he must should part dissenting part: evidence, produce should he nor should his

evidence, jury’s con- excluded from the I. Issue The Sandstrom Cleary, generally E. sideration. See majority The instruc- holds § on Evidence McCormick impermissibly shifted the burden of tions proof, violating constitutional in the instruction so Brooks’ This was resolved submit, rights. I'agree portion and concur firmly but, unwisely I — —con however, majority, opinion. predecessor court in Mann demned our Cir.1963), over- States, (5th then concludes that there not F.2d 404 v. United whelming an intent to kill and denied, evidence of 375 U.S. rt. ce beyond a that the error was not harmless 474; 11 L.Ed.2d see United States reasonable doubt under the standards (Hill, Chiantese, 560 F.2d J. 18, 87 Chapman California, concurring specially). That instruction (1967). Accord- inference of cautioned the that an ingly, it the lower court’s denial of reverses contrary intent should not be drawn “the if relief, requiring a new trial on habeas thus appears evidence.” There was no from the guilt. disagree I the issue of upon anyone produce evidence to burden holding. properly contrary. Any evidence ad mitted, being defendant under no with the states, majority in his confession As fully duty produce entitled evidence kidnapped the vic- Brooks admitted that he so, might support a contention con to do forced her to drive tim from her home and trary to the conclusion. where, gunpoint, him to a secluded area raped her her. When he made disrobe days, began before we those Even screaming, began Brooks aimed the victim stone, carving many on this it would facets pulled gun at her and the hammer. that, be seen in this evidence Brooks, According gun “the went off.” of intent was contrary of the conclusion fled, to bleed to leaving He his victim state, in the same confes- produced, by the death. upon proved the facts which the sion which language in might relying conclusion be based. The defend- Da- majority, (1985) (en discharge, af- F.2d 1515 Kemp, ant’s assertion of accidental vis v. cocking banc), inquiry in producing, aiming indicating the load- that the crucial ter reed, determining error the Sand- pistol, might have been a slender harmless ed “intent,” concludes that to have the issue thus strom context but he was entitled over- of intent is not here the evidence appearing jury. resolved Brooks never ad- Sandstrom error was harmless. whelming, since at trial Franklin, I the defendant that he he kill. find this admitted intended to mitted gun fired the that killed Although the the victim. The reasoning unpersuasive. testified, however, gun defendant to mur- instruction related the Sandstrom response slamming “went off” to in the of possibly not charge, jury the could der face, in a door defendant’s and that he the appel- the the that ignored evidence have weapon. to fire the never intended a the victim with loaded threatened lant tangible the defend- evidence corroborated accomplish rape, the abduction and pistol to establishing ant’s claim that the bullet began screaming did not until she that killing through travelled the door before it, pistol cock or the at her and he aim the victim. hammer,’’ to preliminary a act “pull the evidence, weapon. although the This

firing Franklin, In as in the instant it on Brooks’ con- circumstantial based undisputed the that defendant fired the fession, clearly implies he nevertheless that gun that killed the victim. All that is miss- to hammer in order fire the* pulled the ing from Brooks’ confession is the admis- weapon. pull trigger. sion that intended to the he explicit an admission of intent is un- Such “pre- I have majority insists that necessary. Brooks, unlike the defendant merely to the intent kill because of sumed Franklin, gun claimed the never that probable consequences’ of ‘natural response struggle any off” to a “went Ante, On this p. acts.” 1393. Brooks’ " fact, intervening physical other In event. course, majority is of the correct: point, shooting not even claim that the nature, did “intent,” by very its cannot be guns simply do was an “accident.” Since evidence, by direct unless the de- proven themselves, “go only rea- not off” the expressly his intent. The fendant states the that sonable inference from evidence is case, however, in this constitutional error pull trigger. I Brooks did intend to the in the was lies not fact that al- the jury have no would have doubt kill; intent presume Brooks’ to lowed reached this conclusion or without it Supreme Court has made clear that charge. Sandstrom presumptions do not violate the permissive Clause, except Process where Due (11th Jernigan, 683 F.2d 1332 Lamb v. County Ulster patently unreasonable. See Cir.1982), denied, 460 103 U.S. cert. Allen, 140, 157, 442 99 S.Ct. v. U.S. Court (1983), in L.Ed.2d 496 also S.Ct. 2213, 2224-25, (1979); L.Ed.2d 777 of violation in a case volved Sandstrom — Franklin, -, Francis There, malice this court discount murder. L.Ed.2d 344 of appellant’s ed the claim self-defense Rather, the error here was that, although the was found instruction intent, compelled presume such of burden-shifting, it was harmless in view proof shifting the of ’thus burden overwhelming guilt:1 evidence of elev In my opinion, error was defendant. on the victim no evi en stab wounds beyond be- a reasonable doubt harmless dence of assault on defendant. an instruction, cause, even absent such view, of guilt evidence of my impossible been reason- would have case, including intent malice in this murder other infer- able have drawn kill, equally overwhelming as intended to kill his that Brooks ence but judge here Had trial Lamb. victim. charge, “you may pre- given permissive sume,” than unconstitutional This case stands in contrast Francis rather — U.S.-, given, I am con- Franklin, instruction mandatory 105 S.Ct. would been verdict (1985), vinced L.Ed.2d 344 which Therefore, error meets here ruling same. affirmed court’s Court charge includes murder Georgia malice necessarily is an essential ele- Because intent guilt intent. evidence of murder, of malice evidence ment Furman v. (1976); Chapman Georgia, “beyond a reasonable L.Ed.2d 859 test that 238, 242, 2726, 2728, did not con- complained doubt the error (1972) I would (Douglas, J., tribute to the result obtained.” L.Ed.2d 346 concur- affirm the district court’s denial of habeas ring). ground. Accordingly, I

relief on this DIS- possibility arbitrariness, To reduce the portion majority SENT from this applied scrutiny courts have careful opinion. prosecutorial arguments appeal which II. Prosecutorial Misconduct jury. emotionally An emotions join Judges I dissents both jury may weigh inflamed able to to Section Two of the Clark Johnson relevant considerations with the care and majority opinion, relating prosecu- by gravity deliberation demanded of improper closing tor’s remarks. penalty. Supreme Yet both the Court recognized of and members this Court have JOHNSON, Judge, dissenting: Circuit types may that some of emotional response wholly appropriate capital be to a sentenc- THE I. PROSECUTORIAL ARGUMENT ing proceeding. capital punish- Because CLAIM may expression ment be understood as “an majority approves prosecutorial ar society’s outrage particularly of moral at (cid:127) gument similar to the one found “funda conduct,” Gregg Georgia, v. su- offensive Zant, v. Hance mentally unfair” in 696 pra, 183, 2929-30, 428 U.S. 96 S.Ct. at denied, cert. (11th Cir.), F.2d 940 463 U.S. response fury enormity or horror at the 1210, 3544, 1393 103 S.Ct. 77 L.Ed.2d acceptable, of the defendant’s crime is an (1983), noting simply, and without examina necessary part perhaps imposition of the opinion, tion of that that “we ... overrule] too, penalty. principle, the death But this any implications in Hance inconsistent with qualified, must the retributive be because opinion.” possible Because it is not justification requires penalty that Hance reject standards articulated imposed deserving only on those of socie- abandoning without also the well-estab sanction, Gregg see v. Geor- ty’s ultimate principles lished constitutional from which 30, gia, supra, 428 U.S. at 183-84 and n. derive, 96 they I dissent. Outrage S.Ct. at 2929-30 and n. 30. which A. CONSTITUTIONAL FRAMEWORK is directed at the heinousness of the crime concerning prosecutorial Our decisions general, danger murder in or at the that argument, concerning like those other fea- group pose society, as a is an murderers trial, tures of the have been in- impermissible imposition basis for the formed the conviction that “death is a penalty, persons the death as it “treats all punishment different kind of from oth- designated convicted of a offense not as imposed country.” er which in this uniquely beings, human individual Florida, 349, 357, Gardner v. 430 U.S. 97 faceless, members of a undifferentiated 1197, 1204, (1977). S.Ct. 51 L.Ed.2d 393 subjected mass to be to the blind infliction required protection, by This difference has of death.” Woodson v. penalty procedural safeguards means of and con- Carolina, 280, 304, North 428 U.S. 96 S.Ct. tinuing judicial vigilance, to assure 2978, 2991, (1976) (striking 944 49 L.Ed.2d imposition product is not the mandatory pen- North Carolina down See, e.g., Zant caprice. of arbitrariness or alty for unconstitutional lack of statute Stevens, 410, 413, v. 456 U.S. 102 S.Ct. application penalty). individuation 1856, 1857, (1982); Godfrey 72 L.Ed.2d 222 Florida, 782, also Enmund v. 458 U.S. See Georgia, 446 420, 427, v. U.S. 100 S.Ct. 3368, 3377-79, 798-801, 73 1759,1764, 102 S.Ct. (1980); Gardner 64 L.Ed.2d 398 Ohio, v. (1982); Florida, Lockett 438 supra, 357-58, L.Ed.2d 1140 v. 430 U.S. at 97 2965, 2954, 586, 605, 57 1204-05; Gregg Georgia, U.S. S.Ct. S.Ct. at 153, 189, 2909, 2932-33, gia prosecutorial recognized princi- of a Court permissibility Thus State, depends on ple emotions of a Prevatte appeal to the 233 Ga. response which is evoked. nature of the S.E.2d when held statements supported the evi which are

Appeals referring from court or to the circumstances of and relate dence appeal possibility impermissi- were incite permissible, ease are ble. court concluded that “inev- outrage which acceptable form of itable effect” of such statements to “en- See crime. responds to the defendant’s courage the jury to take less full than v, Alabama, 587 F.2d Cronnon responsibility their awesome task of denied, Cir.), cert. (5th determining life or death.” 214 S.E.2d (1979) (prosecu L.Ed.2d 792 principle, accordance with this description graphic of murder tor’s courts this Circuit have concluded permissible if of criminal characterization prosecutorial encourage statements them). Arguments supports evidence disregard its life or death re- evidence, or seek support lack which sponsibility invite it believe upon jury’s undifferentiated play sentencing already decision has been made violence, impermissi or hatred of fear expert more are improper. authorities ble, they encourage in the arbitrariness States, Hall v. 582, See United 419 F.2d preclude the imposition of sanctions and (5th Cir.1969) (prosecutorial 587 statements judgment required by the individualized suggesting sentencing has already decision Estelle, v. Houston Constitution. Cf. impermissible). made by been authorities (5th Cir.1978) (prosecutor’s re F.2d 372 to unsupported references defend peated approach employed A third to channel impermissi drugs ant as liar and dealer jury’s to discretion has been limit its ble). brought consideration to those matters out The avoidance arbitrariness principle in evidence. This was unre its re- exercise of discretion also jury’s servedly adopted the former Fifth Cir quires jurors be “confronted with cuit, which noted “summation should decreeing truly responsibility of awesome put not be used to before the facts not human____” Lockett v. for a fellow death actually presented in evidence.” United 598, Ohio, supra, 438 U.S. at Warren, (5th v. States 550 F.2d require- The addressed Court Cir.1977), grounds, on other F.2d rev’d opinion in its in ment recent California denied, (5th Cir.1978) (en banc), cert. Ramos, 3446, 463 U.S. 103 S.Ct. 956, 100 S.Ct. (1983). declining While to L.Ed.2d 1171 has, moreover, The Court unconstitutional an instruction inform- hold use applied that standards declared power ing of the Governor's information in sentenc of nonrecord sentence, the Court em- commute applied than those ing should be stricter phasized effect of the dimi- the detrimental Gard types sentencing. of criminal other responsibility jury’s nution sense Florida, supra. Gardner ner “advising jurors that a for its decision: held could not death sentence Court theoretically modifiable ... death verdict information which was on non-record rest approach their sentenc- may incline them and which presented not defendant ing appreciation decision with less The con opportunity had no to rebut. he choice for the moral gravity their expressed “re by the Court about the cern reposed them as sentenc- responsibility equally ap liability” of such information may operate to the ... defend- es [and] prosecu by the made plicable statements disadvantage.” 463 U.S. at ant’s distinct any support the record. which lack tor This detrimental at 3458. concern, past decisions of this On basis substantially impact is increased when held such statements this Circuit have ignore responsi- their jurors invitation to improper. bility open explicit. The Geor- be more

Against alty, the framework of constitutional his claim that Brooks' execution would principle on which decisions such as Hance taxpayers money, comparison save and his built, easily per- can more jurors been to soldiers a “war on crime”— departure majori- ceive the effected improper. majority, were The then con- ty opinion. light cludes that of the broader context comments, arguments of the of defense APPLIED B. THE FRAMEWORK counsel and ameliorative instructions 1. The Standard of Review court, improper these comments were majority correctly The identifies “not sufficient to undermine confidence in proper of review as whether the standard the outcome” and therefore not “funda- concluding argument prosecution, mentally (Majority Opinion p. unfair” whole, taken as a rendered the trial “so 1416). above, principles enunciated fundamentally deny unfair as to de- [the however, suggest majori- both Hance and the process.” due fendant] ty’s evaluation of the individual com- cases which followed acknowl- ments concerning and its conclusion their edged prosecutorial to consider need cumulative effect on the are in error. trial, in the context of the entire Zant, supra, Hance v. 696 F.2d at range identified a of factors which would a. Prosecutor’s Belief in the Death Pen- prosecutorial

make a comment more or less alty Id. likely to affect the trial. fairness of a majority particular requires at n. 7. That this standard finds that importation probability” improper because at “reasonable statement was “[a]n distinguishable torney’s personal opinions test from the context of are irrelevant to counsel, ineffective Strick- sentencing jury’s (Majority Opin assistance of task” — -, Washington, land v. U.S. 104 p. 1408). analysis ion at Yet this substantial 2052, (1984), 80 S.Ct. L.Ed.2d 674 has not ly impropriety the underestimates of the conclusively been demonstrated.1 But that important comment. The more reason that question disposition need affect the improper, majority the statement as the prose- this case. As an examination of the parenthetically opinion later in the admits clear, cutor’s make will there is 33), (Majority Opinion at 1404 n. is that state that, probability” at least a “reasonable but by prosecutor carry ments made the substan improper argument, for this the result of tial, weight sometimes unwarranted with a proceeding would have been different. jury. As the Court concluded States, Berger v. United 78, 88, 295 U.S. Argument 2. The Prosecutorial 629, 633, 79 (1935), jury’s L.Ed. 1314 obligations confidence that “the which so majority considers twelve instances plainly upon alleged prosecuting attorney rest prosecutor’s misconduct faithfully jurors will be observed” leads finds that four —his ex- assertions, pression personal particularly accord his belief those penalty, infrequency personal knowledge, weight against his reference to the “much prosecutors pen- properly with which seek the death the accused when should Strickland, Washington perpetrated by 1. While the Court in v. sumed where the misconduct supra, expressed See, attorney. a concern with the "fundamen- e.g., the state or its United States - proceeding Cronic, -, 2039, tal fairness” of the similar to that v. U.S. 104 S.Ct. here, by majority opinion articulated that (1984) (state with as- L.Ed.2d 657 interference attempted primarily to define the command of counsel); Giglio, sistance of United States v. Amendment, provi- the Sixth a constitutional 763, (1972) 92 S.Ct. impor- sion which is not at issue here. More (state concerning suppression of information tantly, opinion made clear that in the con- witness); immunity prosecution Brady v. text of both the Sixth Amendment and other Maryland, 373 U.S. 83 S.Ct. L.Ed.2d provisions such as the Fourteenth Amendment (state (1963) suppression of evidence favor- which concern "fundamental fairness” accused). able to defendant, prejudice likely pre- is more resolved, evidently for this reason that as it carry none.” It is has been Georgia, by legislatures. state of attorney has state prosecuting a misconduct argument provides adequate Neither a sufficient basis for re- held to be been justification permitting a reference Berger versing a conviction. See v. United patently improper. which is so States, supra. Georgia While the increase in the crime however, concludes, majority may rate be a matter of common knowl- provides no such particular statement edge, putative.connection between this insignificant” as its “effect was ground, goal reference and of deterrence raises a 1413). argues It p. Opinion at (Majority question. difficult more The nature of the merely statement prosecutor’s acknowledged is, connection the Court Georgia legis- of the judgment echoes concedes, majority “complex” as the later Yet valid. punishment lature scholarly and the debate on the matter is the sim- clear unquestionably it is yet (Majority Opinion “inconclusive” ple passage capital punishment of a statute 1409). Moreover, passage of a legislature remove from by a state does not punishment Georgia legisla- statute citizens all doubts concern- the minds of its necessarily represent ture does not punishment. If ing legitimacy body’s judgment considered on the deter- case, the examina- this were the voir dire effect penalty, passage rent as such potential capital jurors hardly would tion of may also be related to its retributive func- significance it has have assumed Gregg Georgia, supra, tion. See v. See, Witherspoon e.g., recent cases. 183-84, U.S. at 96 S.Ct. at 2929-30. Illinois, 1770, 20 facts, light of these a reference to the can L.Ed.2d 776 Jurors’ doubts penalty deterrent effect of the death par- conceivably assuaged, addressed and presents with a “fact” which is case, ticularly specific in the context of a neither on the record nor of established by public servant “whose interest ... validity. prosecution is not that it shall win criminal beyond question Even of factual ba- justice be done.” shall sis, requirement the constitutional of indi- States, supra, 295 U.S. at Berger United imposes way pros- limits viduation on the majority 55 S.Ct. at 633. The substan- may concept ecutor invoke the of deter- tially prosecu- underestimates the effect a rence. While he remind the tor’s endorsement of the death can justifications for accepted penological jury. have on a penalty, the death deterrence and retribu- tion, toward his comments must be directed Reference to the Crime b. Prosecutor’s question the of whether under the circum- Capital Rate and the Effect of Pun- particular imposi- stances the case the on It ishment penalty of the would serve these tion majority prosecutor’s The finds that the — Florida, objectives. Spaziano v. Cf. an increase in the crime rate reference to U.S.-,-,-, 3162- since the date of the last state execution 63, (1984)(sentencing must and his statement that “we didn’t have this penological only take into account not valid capital kind of murder ... when we had objectives but facts and circumstances punishment” improper. opinion is not crime). A individual and his statement explains increasing rate crime murder “we didn’t have this kind of ... knowledge “within the common of all rea- capital punishment” abso- when we had has people” sonable and was related nothing lutely to do with the circumstances deterrence; question of it states further explain It does not of this individual case. possibility the of a connection between would serve why this defendant’s execution capital deterrence, imposition why the his crime is goal the crime rate and the society’s ultimate acknowledged by appropriate object punishment has been effect, is, an courts, It matter to be retributive sanction. which have left the ledger by side of the penalty placed on the correct jurors impose invitation authority. knowledgeable The cumula- crime,” invitation part of a “war tive effect of these comments was to invite majority improper found which even jury to endorse the decision of the all considered later. For and which will be office, prosecutor’s not to draw its own reasons, majority in con- erred of these conclusion. doning prosecutorial reference. prosecutor’s references to

Nor did Infrequen- Reference to jury’s responsibility c. Prosecutor’s vitiate the effect of comment, in His Of- for such references were cy with which Prosecutors potent majority fewer and less than the Penalty fice Death Seek prosecutor’s suggests. In the text of the prosecutor’s majority finds that the closing argument only there are two clear attorneys statement that in his office had jury. responsibility references to the sought penalty the death less than a dozen (“when get I The first of these references years improper times in the last seven room, jury to that and we have to back jury to believe that a because led vote, life, somebody’s and I vote to take appropriateness decision as to the it?”) immediately I can do comes before punishment already had been made offi- prosecutor’s proclamation Wil- experienced they, cials more than and re- responsibility liam Brooks should feel responsibility they duced the sense of felt execution, clearly his which undermines with that But the connection decision. any feeling responsibility induced majority that this comment did concludes preceding words. The other reference prejudicial not have a substantial effect (“The you today. stops you buck And 1) prosecutor because: referred to the something bring can do about it. You can factors which were behind the decision to penalty you back the death can tell penalty, jury seek the death so the could you’re going William ... [that] 2) evaluate those factors for themselves chair, get you the electric that’s what can entirety emphasized in its do.”) prosecutor’s comes the midst of the jury body was the vested with the jury wage invitation to the a “war on responsibility determining whether the import crime.” The of this section of the 3) arguments defendant should die of prosecutor’s argument is not that the defense counsel and the instructions appro- responsibility has a to decide the given by re-emphasized this re- court priate penalty duty but that the has a My sponsibility. own consideration of the impose message penalty the death —a compels the conclusion that none of record notably which is not different than that the harmful ef- these factors ameliorated conveyed by prosecutor’s reference to prosecutor’s comment. fects infrequency with which his office asks penalty. Neither of these referenc- An led for the enumeration of the factors which responsibility es communicates a sense of to seek the death negate the ill effects of the sufficient ameliorating might have been an influence prosecutor’s concerning frequen- comments if it in a manner which had been delivered cy. permitted jury the to draw its own conclu- the regarding appropriateness sions the of impropriety the Nor should we condone the sentence. But this was not case argument of statements of this because prosecutor preced- argument. instant The by by defense later made the court ed the elaboration of each factor with a majority the counsel. The overestimates thing pointed phrase such as “another we can effect that such statements curative you we come and ask damage incontestably consider once the of an before added), (emphasis penalty,” argument the death has been done. It has improper not to the jury’s the attention the rule in this Circuit that ameliora- which called been prejudice to fact do not cure factor to be considered but to the tive instructions unsupported or in- already weighed and the defendant where that element had been pervade prosecu- responsible? staff flammatory ... do we feel I references don’t. Estelle, anyone does.”). I think in my Houston v. don’t office argument. See tor’s Then, lengthy argu- dis- the final of the supra. prosecutor's Here the sentences ment, prevent to seek in order to jury of its rare decisions from cussion of one seeing penalty reminded the the execution as an effect the death without a cause, the decision fac- junctures party reveals that the numerous responsible more for the already been made execution is William ing them had (“if pulled This constitu- Brooks himself the switch knowledgeable authorities. death, proscribed jury’s put pulled diminution of the he’s he the switch tionally morning put responsibility gun cannot be overcome that he ... sense of Galloway”). the defense back of Carol The by a few brief comments statement majority attorney conveying or the court. which the describes as point (“He’s argument the main of the grown man and he knew what he was only d. Prosecutor’s Statement doing.”) very comes at its conclusion Responsible Exe- Brooks was for his primary and has little do to with its focus. cution Contrary majority suggests, to what the proper prose- majority accepts as The imagine argument it would be hard to argument cutor’s extended William carefully Brooks, which is more calculated to re- any legal rather than of the deci- responsibility duce that sense of which the sionmakers who have confronted requires jurors contemplat- Constitution responsible opin- for his execution. The ing imposition penalty. import ion states that the best; This is not an indirect reference to that ambiguous and the most reason- responsibility, approved such as the Court interpretation prosecutor’s able com- Ramos, supra; nor is it grown ments is that William Brooks is a California responsibil- even an invitation to share that responsible man who is for his actions and others, ity Georgia such as the Su- capable suffering consequences. their preme Court struck down in Prevatte v. cursory Even the most examination of the State, supra. put It is an instruction to majority reveals that has thoughts responsibility away all when wholly point. mistaken its considering imposition penalty in by evoking argument begins type reference this case. This cannot be assuming responsibility doubts about ambiguous or cured a few labelled going through the execution which must be It is a reference words from court. (“when get juror the mind of each back fundamentally affects the fairness which I take to the room ... and vote to trial. the entire life, it?”). somebody’s can I do It then responds directly by deny- to this concern e. Prosecutor’s Discussion of the Fu- part ing responsibility, either on the Dangerousness of the Defend- ture part en- or on the of other law ant the case forcement officials connected with (“the is, you’re majority prosecutor’s truth of the matter not finds that the life, taking you’re pulling danger would his not switch references chair; police pose prisoners, guards in the electric who investi- to fellow and other daughters gated they’re taking people’s proper this case were because ... life; from judge appropriate who heard were inferences Recorder’s Court important ques- preliminary hearing, the evidence in the record and relevant to the you say responsible pose a con- going to he’s ... of tion of whether Brooks would not.”). danger society. inspec- A brief course It also alludes to similar tinued argument on this might prosecutor’s doubts that been in the mind of tion of the have not the prosecutor, dispels responsibili- point demonstrates that this is case. the (“How potential future ty my “inquiry” as well me and into Brooks’ there about crime,” jurors in a it violence, largely per- to soldiers “war on consists which (“I prosecutor argu- the ill offered concludes that effects opinions sonal child, I mitigated by when I was a got whippings ment were defense counsel’s me ... but my daddy used to beat thought metaphor and the court’s criticism of go give me an excuse to out that doesn’t circum- references to individualized crime.”), wholly separate commit a again, stances of the case. Once the ma- to Brooks’ prosecutor’s reference from the impact jority overestimates the curative im- prison population. More danger to the subsequent instructions. it discloses no information on portantly, have, variety Panels of this Circuit for a juror which a could conclude basis of reasons, crime” to found the “war on Brooks, opposed any to other defendant among inflammatory imper- the most murder, pose would a threat to convicted of arguments missible that have been made him. safety of those incarcerated with by prosecutors seeking penalty. the death child,” “young Though a car as a he stole Not does the characterization of the history past no of murder or Brooks has anonymous defendant as an member of the crime. Nor does the any other violent deprive element” him of the indi- “criminal testimony by crimi- point to required prior vidualized consideration to professionals nologists or health care penalty, imposition of the death but the likely is more suggests which declared, suggestion that a “war” has been pose other defendants to a threat than implication jurors and the attendant future. it, fight “duty” have a removes from the record, very unlikely it Given this seems responsibility jury the sense of for their prosecutor’s were rele- comments appropriately decision makes for an type inquiry that the Consti- vant bounded exercise of their discretion. And inquiry danger- permits: tution an into (“they’re pitched of a battle evocation particular of a Jurek ousness defendant. war, bad, winning the is what’s so and if Texas, they’re winning, just you don’t believe look helping L.Ed.2d 929 Rather than you”) encourages to reach about evaluate the defendant as an its decision in a frenzied and emotional individual, encouraged comments these atmosphere which invites arbitrariness indistinguish- jury to view the defendant as judgment. able from the entire universe of violent types These not the of effects which are criminals, any one of whom has some incal- likely dispelled by a word to be brief potential culable to return to violence. attorney. from the court or the defense inflammatory terms in which these com- Opposing counsel’s criticism of meta- (“It offered Mrs. ments were Gallo- hopelessly phor likely to seem abstract to time, way’s daughter Bobby Murray’s goaded that has been into froth friend; girl daughter girl whose friend or patriotic duty. And the court’s reference ?”) suggest will it next time ... also circumstances of the jury’s individualized appeal were intended to likely great weight generalized fear of violence. Far from be- crime is not bear ing permissible attempt jurors just evaluate the the minds of who been dangerousness, reminded, length, why defendant’s future these at considerable comments reflect a concerted effort appropriate the defendant as a to view deny him the individualized determination of the “criminal element.” faceless member required appropriate sanction that is length at the and with the When delivered by the Constitution. in this the “war on fervor exhibited damaging argument to be crime” is too

f. the “War Prosecutor’s Invocation of impor- subsequent remarks. The cured on Crime” sentencing tation of this into drastically capital trial affects majority improper phase of a While the finds prosecutor’s comparing its fundamental fairness. metaphor extended

1431 prosecutor’s improper arguments by prosecutors given In at instances the least six argument atmosphere an of unfo- special prosecutor created of the role the emotion, relieved the of cused However, justice system. criminal from responsibility for its decision or sense of starting point majority adopts that the then deprived petitioner of an individualized the prejudice the standard of Strickland v. penalty. the — appropriate of consideration U.S.-, Washington, 2052, 104 S.Ct. damag- In none instances were the of these (1984) L.Ed.2d 674 80 determine whether by por- other ing comments ameliorated any particular argument aby made district prosecutor’s argument or tions of the attorney violates In fundamental fairness. comments from the court or defense coun- view, my majority’s the new standard is sel. One cannot but find a “reasonable existing Supreme prece- conflict with Court probability” these that comments affected dent the constitutional considerations proceeding. By outcome of endors- underlying precedent. policy, Both misconduct, ing prosecutorial the ma- analogous precedent well as the of Su- its jority signals carefully retreat from decisions, preme require Court that a feder- of constructed framework constitutional court corpus al on habeas first review de- designed principles, to reduce the role of argument termine whether the has exceed- in capital sentencing.2 It arbitrariness boundaries, i.e., ed constitutional did it ren- should, instead, have reversed the district proceeding fundamentally der unfair. prosecutorial argu- court’s on the decision Although closing argu- an unconstitutional ment issue. may require ment corpus not habeas relief harmless, if the error is of burden CLARK, Judge, concurring in Circuit state, proof beneficiary rests on the part dissenting in part: error, to show that the was harm- error part majority’s I in that concur of the beyond less In a reasonable con- doubt. opinion holds that the instruction which on trast, adopted Strickland standard placed given upon malice at Brook’s trial majority proof shifts the burden him disproving the initial burden of malice show the defendant to that the error affect- Montana, in violation of Sandstrom v. 442 ed the outcome in his case. This conclusion 510, 2450, S.Ct. L.Ed.2d U.S. 99 61 39 is erroneous. (1979) error and that Sandstrom I. The Role the Prosecutor However, agree not harmless. I cannot majority’s opinion with section two of the adversary system In prosecutor our prosecutor’s closing which holds that the special plays role. The is both penalty phase Brook’s jus- advocate an administrator proceeding trial did not render that funda- only duty tice. It is his her not mentally unfair. justice.1 convict but to seek A.B.A. See two, Justice, opinion 2nd majority section be- Standards Criminal Ed. § gins (1982) 3-l.l(b)(c); by recognizing dangers the inherent A.B.A. Code Profes- stated, majority opinion 2. Even Or evinces discomfort as other courts have stan a double dard suggestion prosecutor's argu- does and should exist. United with its DiCarlo States, 364, denied, (2d Cir.) 6 368 F.2d 268 cert. ments were harmless because "over- 640, (1925); L.Ed. 1168 whelming guilt" (Majority of the defendant U.S., Cir.1919). (2d Filler v. F. For 36). Opinion Washington n. at 4480 v. Strick- example, prosecution, required to disclose land, suggests supra, where evidence exculpatory pursuant information defense weak, against a defendant errors counsel Brady Maryland, greater impact jury. have a on the But to 1194, 1196-97, (1963). L.Ed.2d These into a transform that rule where prosecu restraints are based on the strong, prejudice such evidence is is difficult or justice duty tion’s but also on see that done establish, impossible to is tantamount to an as- recognition power state is procedural protections sertion that those re- subject simply by magni its to abuse virtue of quired by apply only the Constitution to those Schwartz, Vindic tude. tiveness, Limits Prosecutorial against whom evidence is scant. L.Rev. 69 Iowa 1432 fair; justice system As are our of suffers EC 7-3. ais Responsibility,

sional States, in 295 Berger unfairly." Court said v. United when accused is treated any 629, 633, 88, 78, 79 L.Ed.2d 87, U.S. 55 S.Ct. 83, Brady Maryland, U.S. 83 v. 373 (1935), 655 1194, 1196-97, (1963). S.Ct. representative is the [prosecutor] “The prosecutorial Unfortunately, excess in party controversy to a ordinary anof closing argument is not an isolated or rare obligation sovereignty whose to but of a Judges event. and commentators bemoan govern impartially compelling is as its yet but had diffi- frequency its as of all; govern to at and obligation whose offering culty reducing sugges- it or useful interest, therefore, prosecu- in a criminal tions for its reduction. Courtroom Mis- win tion not that it shall a is conduct, supra, 50 One Tex.L.Rev. at 631. done justice shall be ...”. prosecutor former now a Florida state therefore, prosecutor, wields the The said, judge “[p]rosecutorial trial has mis- justice. duty “It is his to recall sword of closing argument increasing in conduct sword, forged in the though flame in frequency appears perniciously to be alloyed iron heat zeal is with the of of of resistant to eradication. Because its Estelle, 595 F.2d restraint.” Houston potentially upon crimi- disastrous effects a Cir.1978). 372, (5th The 384 reasons that trial, prose- nal demands attention required are restraint obvious. de- Defoor, cutors and the defense bar alike.” accused, fendant, by simply being Closing in Ar- Prosecutorial Misconduct target. to trial is a vulnerable brought (1983).2 gument, 7 Nova L.Rev. 443 With Second, prosecutors who deal in these mat- mind, analysis these in an considerations daily expected ters should to be more what proper inquiry constitutes the and of by experience. of their restrained virtue opinion majority of the follows. error Third, prosecutor employee is a state frequently jurors creates and this a Proper II. Inquiry by sense trust and fairness in and him. It is fair in a fair axiomatic that a trial Alschuler, Courtroom Misconduct requirement pro- tribunal is a basic due Judges, Prosecutors and Trial 50 Tex.L. Louisiana, 466, cess. Turner v. 379 U.S. 629, (1972). Jurors, varying Rev. 632 546, (1965); 13 424 85 S.Ct. L.Ed.2d see degrees, predisposed great give are to Murchison, 133, In 349 75 also Re U.S. weight prosecutor. to the words of a See (1955). 623, S.Ct. 99 This is a L.Ed. 942 88, Berger, supra, 295 U.S. 55 S.Ct. at liberty fundamental secured the Four- 633; also A.B.A. for Crimi- See Standards Williams, teenth Amendment. Estelle v. § Justice, nal (commentary). 3-5.8 There- 501, 503, 1961, 425 U.S. L.Ed.2d 96 S.Ct. 48 fore, prosecutor should refrain from clos- (1976). As a principle, result ing arguments calculated inflame any defendant a criminal has a case passions of the or that serve divert right impartial dispassionate jury duty from its decide case upon solely based evidence decision solely on evidence. The Dowd, developed at the trial. Irvin v. duty guard rights thus has a 722, 1639, L.Ed.2d society large. well accused as as those (1961). § regardless hei- Standards, 5.8(c)(d). “This true A.B.A. This is so 3— because, charged, appar- of the crime “[s]ociety wins not when the nousness guilty guilt are convicted but when criminal tri- ent offender the station opinion crimes], apparently acquiesced involving leading 2. This is an cases horrible Georgia Supreme ‘prosecutorial Justice Charles Wcitner of call When what we overkill’. "Vengeance" Court. In an article entitled fea- amply six solid items would be sufficient Weekly Magazine tured in the Atlanta conviction, Sun- up prosecutor drags assure day, January he said: inviting many questionable, of which arc thus But there is a sense or combat sometimes error and reversal. P. 13. overpower intrudes to a sense of balance [in occupies.” he Id.3 also tion considers precedents life which See relevant Teets, then Chessman assesses the interest at stake. 452 1127, 1 L.Ed.2d 1253 U.S. at 101 S.Ct. at 2158-59. The Su preme has Court made clear that not every right, to secure this limitations order improper closing argument by pros a state of the state placed on the conduct both requires ecutor federal corpus habeas re during trial. The state for ex- before argument lief. The must constitute a “fail duty minimize the ample has a adverse ure to observe the fundamental fairness pretrial publicity. of and trial affects very essential to the Maxwell, 333, concept of 384 ordered Sheppard v. U.S. 86 1507, (1966). liberty” resulting thus 16 L.Ed.2d 600 A de- in a denial of S.Ct. Four generally ap- process. fendant cannot be forced to teenth Amendment due Donnel pear prison trial in clothes and/or hand- ly, supra. As the Court said in Donnelly, Williams, supra; cuffed. Estelle v. see process “the of drawing constitutional line Alabama, (5th also Boswell v. 537 F.2d 100 regard in evaluating improper ar [of Cir.1976). prosecution The cannot know- guments by prosecutors] is necessarily im ingly perjured testimony use false or 645, precise.” 416 U.S. at 94 S.Ct. at 1872. Giglio a conviction. obtain v. United judgment This is a to be made States, 150, 763, 405 U.S. 92 S.Ct. 31 federal reviewing habeas court after (1972). 104 A L.Ed.2d defendant is entitled entire in the context of the trial presumption to an instruction on the sentencing or the proceeding. Cronnon v. innocence, Taylor Kentucky, v. 436 U.S. Alabama, (5th Cir.) 587 F.2d 246 cert. de 478, 1930, (1978), 98 S.Ct. nied, 974, 1542, 404 U.S. 99 S.Ct. 59 guilty beyond and he must be found a (1979). L.Ed.2d 792 majority’s The search Winship, reasonable doubt. In Re 397 precise for a more standard is admirable. 358, 1068, U.S. 90 S.Ct. 25 L.Ed.2d 368 However, the places result of that search And, (1970). earlier, as was stated proof the burden of on the accused to show attempt state cannot to inflame or other- question in affected the prejudice closing argu- wise outcome in his case. This results virtu Donnelly DeChristoforo, ment. v. 416 ally being placed no restraints upon the 1868, U.S. 94 S.Ct. 40 L.Ed.2d 431 prosecution. majority sug The does not (1974). purpose protec- all of these gest how the accused could undertake such tions is to insure that a defendant’s crimi- proof, writer cannot envision comports nal trial with the fundamental methodology. fairness process mandated the due A. The Role the Harmless Error Test clause.4 Generally, showing once there has been process conception Due is not a technical violation, of a constitutional a habeas cor- time, with a fixed content unrelated to pus petitioner may still not be entitled to circumstances; place, and it has never been relief in some instances if the error was perhaps precisely never can defined. Chapman California, harmless. 386 Department Services, Lassiter Social 824,17 (1967); U.S. 87 S.Ct. 18, 25, 2153, 2158-59, L.Ed.2d 705 452 U.S. 101 S.Ct. (1981). Hastings, see also United States v. L.Ed.2d 640 “Fundamental Fair- ness”, 1974, 1986, 103 S.Ct. by product process, as a 76 L.Ed.2d of due is “a (1983) J., (Stevens, meaning concurring). term opaque whose can be as Some Therefore, importance lofty.” importance, its errors of their Id. because such as particular fundamental complete right fairness situa- denial of the to counsel States, analysis applicability theAs Court said in Sinclair v. United 4. For an of the due 749, 765, process 279 U.S. clause of the Fourteenth Amendment 49 S.Ct. 73 L.Ed. 938 trial, Note, penalty phase (1929); of a see the "exercise of calm and informed Starting Presumption A Point For A Due judgment by [jury’s] its members is essential of Life: Analysis Capital Sentencing, Process 94 Yale proper enforcement law.” (1984). LJ. 351 23-24, Chapman, supra, U.S. at can stage proceeding, aof a critical omitted) (em- (footnotes v. Cron- 827-828 States S.Ct. at harmless. United never be — U.S.-, added). 80 L.Ed.2d ic, See also Connecticut v. phasis 969, 975, 657, 668, 73,103 Johnson, n. 25 (1983)(plurality opinion). L.Ed.2d 823 errors, however, certain can under Other harmless. be considered circumstances prosecutorial mis- Chapman itself was a depending vary will Those circumstances (comment by conduct error, and seriousness on the nature closing during argument on the defend- unintentional, it was intentional whether testify). The test articu- ant's failure reviewing court extent which and the Strickland, be in- supra, cannot lated impact of the error can determine prosecutorial miscon- logically voked body. making In a harmless the decision place do burden duct To so is to case. has stat- Court inquiry, error proof on the victim of error show ed as the test: prosecutor's affected his that the in approach of this Court prefer We sentencing hearing. trial or in our deciding was harmless error what Washington B. Strickland Connect Fahy recent case of State of In Court held Strickland 229, 11 icut, L.Ed.2d a in to make out sixth amend- order question we “The is 171. There said: of of possibility ment claim ineffective assistance there is a reasonable whether might (1) complained of must show that: the evidence counsel a defendant Id., to the conviction.” complained have contributed of were outside the the errors 230____ 86-87, Certainly assistance, at and; range of broad effective error, error, illegally in ad constitutional (2) prejudiced the defend- that the errors or mitting highly prejudicial evidence prejudice, the “de- ant. In order to show comments, casts other than on someone there is a reason- fendant must show that by it person prejudiced a burden to that, un- possibility for counsel’s able but It is harmless. for show that errors, pro- professional the result original common-law reason ceeding have been different”. would on put rule the burden harmless-error is proof The of thus S.Ct. at 2064. burden beneficiary the error either to a squarely Such result defendant. or prove injury was no there makes in an ineffective assistance sense erroneously ob a reversal of his suffer There, a is petitioner context. counsel little, any, There is if judgment. tained counsel, his own i.e. challenging the acts of in between our statement difference First, agent. the role of one’s his own about Fahy v. State Connecticut protect of his attorney is interest possibility “whether there is a reasonable Moreover, arguably client has client. might complained evidence Cer- some over acts counsel. control conviction” and have contributed to the actions, recognized, may as the tain Court beneficiary constitu requiring the of a decisions made be the result tactical beyond prove a reasonable tional error or both. lawyer, the client or the either complained of did doubt that the error Representation frequently Id. at 2068. is the verdict contribute ob in one case an art and what is reasonable tained____ in another. There- be unreasonable standard, Applying foregoing fore, reviewing are hesitant sec- courts in these have no doubt that error Finally, Id. “the guess ond trial counsel. petitioners. not harmless to cases was attor- responsible government is not need To one reach conclusion at 2069 ney errors these cases.” Id. glance prosecutorial comments added). (emphasis compiled by petitioners’ record from the applica- omissions) (with None of these considerations minor set counsel and case! prosecutorial misconduct ble a Appendix. forth in the (4) argument; and was the in a criminal case has no what nature of The defendant jury.5 the decision to be made prosecu- prosecutor. control over rather his representative tor is not prosecutor’s “design” Inquiring into the inflammatory An or otherwise adversary. necessarily subjective is not a test but one never tacti- improper argument should be a upon an examination of the com- based Finally, it is the state and no cal decision. ments made the context of the trial. responsible for the error one else who law, i.e., principle This a familiar question. person consequences intends the natural their acts.

Furthermore, alleged error in an inef- “tendency to mislead or divert” fac- contest is easier to evalu- fective assistance inflammatory improp- tor focuses on do, example, ate. The error has particular er nature of the statement used. properly investigate when the failure to example: For Was the statement based on investigation would have uncovered such prosecu- not in the record? Was the facts In evidence. such situation favorable vouching tor for witnesses? Did the state- its court can hear the evidence assess jury? ment relate to an issue before the well, Frequently, as the de- likely impact. And, what the force of those state- complained knows what the of acts fendant particular ments case? have the burden of were and thus should The factor of whether the proof. the burden of remarks were going forward and isolated or extensive is concerned not nec- challeng- prosecutorial misconduct case essarily quality with the of the excessive argument ing closing effect of a on a argument quantity improp- but with the jury, are and difficult to the effects subtle Finally, er statements. the nature of the relate to the outcome of the evaluate and made decision to be should be case. considered. C. Prosecutorial Misconduct Revisited jury’s chiefly Is the decision influenced Any prosecutori- of a claim of evaluation by subjective objective or factors? Obvi- inquiry. part al misconduct is a two First argument ously, improper prosecutorial itself, argument of the comes an evaluation apt jury’s in is more to affect the decision a sentencing it render the trial or i.e. did subjective objective than in an one. decision so, proceeding fundamentally unfair. If guilt A verdict of or innocence is based inquiry, harmless error i.e. then comes the principally upon objective more factors. beyond can the state demonstrate a reason- Accordingly, usually a instructed is no able doubt that “there reasonable factors, by subjective not to be influenced [argument] might possibility that the have e.g. sympathy for the victim or the defend- proceed- to the” result of the contributed ant, making guilt/innocence in determi- ing. penalty phase capital The of a trial nation. proper determining The test for whether regard, in is different however. The argument constitutionally improp- issue is not whether the defendant was the (1) prosecutor’s er should be: was the ar- culprit, but a far different determination of gument an unintentional breach of the jury’s whether he should be executed. The boundaries, proper designed to induce a or sentencing proceeding is to role in a crime, decision that was not based on a rational on the nature of the and the focus evidence; (2) did the aggravating mitigating assessment of circumstances argument type argument being to mis- particular or tend in case individual’s (3) jury; sentencing phase lead or divert the was the re- The is not a twelve tried. mark^) im- whether the death person an isolated occurrence or were referendum on imposed proper throughout extensive should or should comments very should use in checklist but tools that a court 5. This test is similar to the one used Hance, panel argument. supra, evaluating any particular in F.2d at n. 7. necessarily Additionally, these factors are not by the inquiry. The use error harmless thrust and intent generally, which was in prejudice test majority of the Strickland case.6 the prosecutor’s in- error merges the harmless this context a constitu- strikes test stated above The whether the quiry into the evaluation between tionally appropriate balance constitutionally improper. argument was The defend- at stake. conflicting interests “Thus, errors, even majority The states: made rational decision right to a ant has a errors, require reversal on will not serious strength of of the jury regardless by the corpus unless habeas petition for writ of prosecution The against him. evidence have, in reasonable would their absence securing convictions interest has an Majori- outcome.” changed the probability appealing but not penalties, at 1401. ty Opinion through in- prejudices fears and jurors’ test in order to secure harmless error flammatory arguments While This is sentences. is a consideration7 strength or death of the evidence convictions weight that a inquiry is made af- more so because determination even jury. with the prosecutors’ statements issue is decided. ter the constitutional reasonably intended to are engrafts this determina- majority opinion, Statements fears, etc. juror’s prejudices, appeal to the there has been the test of whether tion into do so unless presumed to should be fairness. fundamental a violation judi- otherwise. “However, state can demonstrate fact the crime neither the making sure system an interest cial has the amount of evidence was vile nor and sentences based that convictions justifies vituperative against the defendant present- upon a rational assessment Indeed, the prosecutor. through process dis- and not ed evidence weight the evidence and greater the Fairness, by prosecutorial excess. torted crime, the less ne- reprehensible the more fairness, is appearance as the as well pros- is there for the cessity justification Amendment re- to the Fourteenth essential jury.” inflame the Cronnon ecutor to process of law. quirement of due (Rubin, Alabama, supra, 587 F.2d at 253 J., dissenting). improper argu- prosecutor makes If the preclude a decision intended to based ments Further, shifts the test the Strickland evidence, of the upon a rational assessment alleged the victim of the proof burden prejudice suffered the defendant has then beneficiary to the rather than misconduct sentencing hearing rendering or the trial error, This is con- prosecution. the of the making impos- fundamentally unfair and it in Supreme decision trary to the Court’s jury’s if the decision was sible to determine quoted as California, Chapman law, or the on the and the based evidence beneficiary perpetrator supra. The prosecutor. engendered by the prejudice proof. the burden of the error should have by looking is made not The determination fundamentally unfair for the State It is remarks, argument by but the at isolated prosecu- although agent, its assert of the trial. as a whole in the context tor, court and law all rules of breached sen- argument, the defendant proceeding governing an that the If it is determined unfair, prove he would tenced to die must fundamentally then comes (1977) (error State, S.E.2d 37 Georgia Supreme emphasized 240 Ga. Court has 6. The by by sentencing phase suggest reviewed not be influenced death sentences are that the any arbitrary passion, prejudice, supreme other factor judge or court and can thus and state trial given the nature of the decision. See O.C.G.A. aside). be set 17-10-35(c)(l) (On Georgia direct review the § “whether the Court is to determine subjective more nature of the much 7. Because imposed under the influ- sentence of death was sentencing in a of the decision life/death prejudice, passion, or other arbi- ence of trary evidence, strength even evi- proceeding, factor.”). Campbell, Zant v. See also circumstances, aggravating supporting dence (error (1980) prosecu- Ga. 265 S.E.2d 22 guilt/innocence than in a much less relevant ap- imply Georgia Supreme Court would tor to prove determination. case); Fleming sentence in this argu- life a sentence vous results when forbidden received ' way ment. its evidence finds into a trial.” 386 U.S. at 87 S.Ct. at 827. This statement nature, test, gives The Strickland its harmless indicates that error rule should be approval of constitutional the cloak prosecutorial in a reluctantly used miscon- Al- improper prosecutorial many actions. necessity, By negates duct case. it the use may in be the though the result some cases “prejudice” adopted by test the ma- same, constitu- say it is different to that no Unfortunately, jority. using majority’s occurred, say violation is to tional than it opposite true, approach i.e. there is viola- there was a constitutional that while a inquiry. little room for harmless error particular case it harmless tion in gives acqui- stamp The first a error. prob- test of Strickland “reasonable action, government to the the sec- escence ability the result of proceeding disapproves of those actions but for ond different”, adopted by would have been legal policy finds certain considerations out majority, rules possibil- “reasonable error, although present, does not ity might that the error have contributed to particular reversal case. warrant language the” in Fahy. result The lan- said, judge has As one guage stringent is so Strickland that it vigor “This court has several times used severely limits harmless inquiry. error language denouncing government ous Chapman Fahy and forbid such a limita- for such counsel conduct as that tion. But, Attorney States here. each United Finally, proceedings” “effect will time, it has said that not re would point many miss the If prosecu- cases. piety Such an helpless verse. attitude of strong tor case given has a then he is wider undesirable____ is, think I If we contin improper arguments.8 latitude to use As nothing practical prevent to do ue person the likelihood will be sen- conduct, disap such should cease increases, tenced to death the likelihood it____ counsel, prove Government em egregious that an will warrant tactics, who, such ploying are the kind reversal decreases. Such a test does not victories, eager gladly pay win will prosecution high enough hold the to a stan- price spank small of a ritualistic verbal dard. An argument should practice ing. recalling of this court to be fundamentally be determined unfair bitter tear shed the Walrus as he regard strength vel non without oysters cyn deplorably ate —breeds against the evidence the accused either in ical attitude judiciary.” towards or, phase here, guilt/innocence States v. Fireworks United Antonelli penalty phase of trial. The constitu- Co., (2d Cir.) (Frank, J., 155 F.2d prosecutor’s tional on a limitations conduct dissenting), denied, 742, cert. 329 U.S. strength should not with the fluctuate 49, (1946). L.Ed. 640 the case. do so is to To rob the term danger is a This error as harmless any meaningful “fundamental fairness” of well, degree. but not to the same The content.9 Supreme recognized danger Court in supra, said, analysis, Chapman, argument when it “harmless an the final can very error work mischie- fundamentally unfair and has been determined to be since, very important "relaxing” is a perceived 8. This consideration as a can above, 1432, 2, supra p. was noted n. as habeas standard that federal courts use to re- prosecutorial frequently excess most comes in prosecutorial misconduct view claims of clos- cases where the crime is the evi- horrible and ing argument. As was noted earlier in this Thus, strong. majority's dence test has a 1432-33, pp. closing opinion, supra excess in heightened impact type on our review of this argument an isolated or rare event. A is not claim. inquiry our into new test that weakens claims only encourage improper argument will more Although quantify, this is a 9. difficult matter to attorneys. “improper" district comments majority's I believe that the standard also new Zant, supra, 103 S.Ct. ty decisions. capital trial phase of penalty in the unfair Therefore, any prosecutori- claim Due to harmless error. can seldom penalty phase of a decision in the of the life/death al misconduct subjective nature “aggrava- matter how with these that no must be examined capital the fact trial be, always has crime ted” the in mind. considerations of life returning a sentence option of closing argu- began his Shortly after he reviewing can sel- court imprisonment, ment, attorney gave in no un- the district possibility that an is no say that there dom capital pun- own views on certain terms his influenced the closing argument unfair ishment: imposed. If the that was penalty I here at the outset that you (cid:127)Let me tell limita- constitutional argument exceeded you’ve got If capital punishment. am for tions, in most cases the writ must then sides, capital I take the side of to take issue. penal- in the death punishment. I believe mind, part inquiry this two With necessary. ty. I think it is argument prosecutor’s assessment of capi- personal opinions on prosecutor’s appropriate. in this case is any other mat- punishment, as well as tal in Context Closing Argument III. The ter, obviously irrelevant. See United whole, Considered (5th Morris, 568 F.2d States trial, from phase of Brooks’ penalty Cir.1978). support this He then went on end, the outermost exceeded beginning to view, capital pun- the view that especially clos- constitutionally permissible of a limits deters, through non-documented ishment argument. ing that were not assertions of matters emphasized it should be At the outset record: challenged in this again that the this; person in you the last I can tell penalty phase of case occurred Georgia was electrocuted Supreme As the capital trial. Brook’s year increased that date crime has since noted, the consensus of their has Court time, every time the by year, time after that “where discre- capital cases has been an increase out we have statistics come sentencing body in a tion is afforded have that when we in crime. We didn’t grave as the determination matter so didn’t have capital punishment, we had life should be taken or whether a human murder, the kind of crimes kind of suitably must be spared, that discretion week, when you’ve heard about Stephens, limited.” Zant v. directed and they they if were capital punishment, had 2733, 2741, 77 103 S.Ct. seldom, them very we heard about were (1983). purpose of the L.Ed.2d else, here. but not around somewhere if death or penalty phase is to determine any evidentia- These remarks were without punishment in that appropriate life is the Furthermore, ry support in the record. 586, 601, Ohio, 438 U.S. case. Lockett v. misleadingly suggested to the 2954, L.Ed.2d 973 98 S.Ct. demonstrat- there is reliable evidence prosecutor at argument by the Improper punish- ing the correlation between phase “interjects irrelevant crime. As in violent ment and reduction finding process, into the fact considerations Gregg v. Geor- noted Court its diverting jury's attention” from L.Ed.2d gia, 428 U.S. focus, characteristics of the indi- proper (1976) cannot be verified this assertion Beck v. Ala- vidual and the offense. See at 184-85. Addition- empirically. 428 U.S. 625, 644, bama, 100 S.Ct. U.S. relevant to either ally, is not this statement (1980). Thus, arguments such L.Ed.2d 392 or the cir- or the defendant the character the likelihood that a sentence increase crime, fac- the relevant cumstances of Eli- arbitrary capricious. and death will be sentencing proceeding. in a tors minating imposed sentences due the risk of jury therefore diverted The statements the main passion prejudice has been to or proper focus. Lockett v. penal- from their See death thrust of the Court’s Ohio, Again, urged these statements jury to L.Ed.2d 973 vote for the penalty death not because of relating factor to Mr. Brooks’ charac- starting point Prom this the district at- ter or the facts the offense but because torney proceeded compare qual- then to Galloway Ms. was thoughtful, a consider- her ities of the victim and worth to her person ate deeply who would be missed family petitioner. to that of the family. her This call for the death penalty Now, this, you lets think about have prominence due to the of the victim in the Anthony looked at William Brooks all community irrelevant, only was not but week, has he been here been surrounded prejudicial to the defendant because it in- lawyers you’ve his and seen him. jected arbitrary an factor in the sentencing person Let’s talk minute about the who processing that could mislead and di- here, not about Carol Jeannine Gallo- jury vert proper from its focus.10 The way. person What kind of was she? essentially being was compare told to pretty know that she young We was the relative worth of the victim and the lady, young lady. a beautiful We know society, defendant i.e. the victim was old, years that she was about she was worthy more and she was dead. The less married, that she still lived her defendant, worthy therefore, should also father, mother know she die. person high was a morals. We know Next, prosecutor urged person. that she was a considerate She a sentence of death appropriate was picking up garbage in this went out can case because his office had determined save her mother or having father from this was one of the few murder We cases for do that. know that she awas which the death was the thoughtful person, appropri- she going punishment. ate Stepping aside as the treat her friend breakfast before her prosecuting attorney, he assumed what friend left town. fact, expert the role of an witness: So, Araguel, Sanders, when Mr. or Mr. Now, we penal- don’t ask for the whoever makes the on that ty have district attorney been talking sev- side starts about William Brooks’ —I en life, years, Brooks, one-half and we don’t take and about William about asking this business of is, for the death young person what a family, he his penalty lightly. We up don’t come here Galloway family. think about the Think every try murder case that we Galloway, about Carol Jeannine who is say, “give the man the electric chair”. today not here in the courtroom and who years In the seven and one-half that I again. will never be here attorney, have been a I district believe Now, they going you, are to tell don’t that we have asked for it less than a life, locking up take William Brooks’ him times, eight dozen I think it is nearer enough, put him, don’t death on don’t nine, I know that it is than less family go through make his with that. twelve. Galloway family gone What has the through. they gone What have through? then process described the Next week it Thanksgiving, when is his and of how office determined sen- that a they sitting table, around the appropriate Carol tence of death was in this case. there, Jeannine won't be and never will “Now do what we consider before we come again. you be there you impose and ask the death Estelle, sive, athlete, church, example See Vela v. 708 F.2d a star usher his (5th choir, Cir.1983), denied, 96Í5 cert. sub social nom. member derprivileged worker with un- races____ —Vela, -, McKaskle v. children of all (1984) (district is, course, corpus court's denial habeas truth of these statements issue; not in reversed), point relief "Faced with task of assess is that are irrelevant to the ing punishment, severity Vela’s was informed sentence and Vela’s should not kind, jury." that the man he had killed was been inoffen- considered experts in the things consid- those who are field.11 These penalty? Well one of we being case is facts of the that have been er are the remarks could intended to to reduce, then went on describe tried.” He only have had and could the effect as follows: minds, offense reducing jurors in the burden her them, i.e., turns around and shoots imposed by Georgia ... law on that [H]e dog, stray dog. you like would down they could choose between the sen- alone her, then, And, kill he said she he didn’t imprisonment tence of life or the death her, he screaming and shot and she was penalty. fell, trying still to scream so he and was manner, In same the district attor- this statement, in his sound said ney urge the jury continued to that it death, she come out and bled to wouldn’t if it responsible should not feel voted for slowly, drip by drip, drop by drop very penalty. the death that, said, I wouldn’t do as to ... We Now, question I sure that another am you get that rid stray animal wanted to might going through your that mind of, you treat it like that. wouldn’t is, get I this time when back to that that, explain went on to prosecutor room, vote, jury have to I and we thing consider we come “another we before life, somebody’s vote I to take can do it? you penalty to the death and ask for is I rough, it is it would be for know hard case,” proof he ex- concluded me to I somebody’s do. Can take life? opinion you that pressing his “I’m sure Well, you’re the matter the truth of is agree morning I this with what said that life, taking you pulling his are not against William is evidence chair; in police switch the electric overwhelming jury He then ...” told investigated ap- who case and who thing that we “another that consider before Brooks, prehended William are not penalty, we for the death is rehabil- ask ... life; taking judge his the recorders court itation,” he had and that concluded that prelimi- who heard the evidence Anthony “there is no chance that William . nary hearing, you going say are to that Brooks will ever be rehabilitated.” taking is responsible he his life? Of improper This of statements was series grand jury course about the not. How jury it informed the the dis- because that who listened to the evidence and indicted office, attorney’s trict state officials with murder; grand him jurors are the decisions, experience making much these life, responsible you can say they for his facts, reviewing after all of the had decided are his life? about to take Of course William Brooks one of the less my staff, not. me and we How about than people deserving a dozen found put together prosecuted the case years. death the last seven one-half him, you now asking and we are here to jury urging Instead of consider all bring penalty, choice, back the death do we feel making relevant facts before its responsible? essentially any- I don’t—I don’t think attorney jury district told already body my the choice had been made office does. arguments priety type improper such can The reasons of this be found States, Fike, were stated in Hall v. United 582, 419 F.2d United States ex rel Clark 538 F.2d 750 (5th Cir.1969) (conviction denied, reversal be- (7th Cir.1976) cert. misconduct). prosecutorial cause of re- "The (1977) L.Ed.2d 781 where the court least, mark is at the an effort lead the suggest wrong held that it was that a defend governmental believe the whole establish- being prosecuted. guilty is is ant because he already appellant determined ment had to be suggest, wrong prose as the situation it (Citation guilty omitted). before on evidence not them.” did, cutor defendant deserves the death arguably, may "Or be construed to penalty just seeking it. because the state Fur pre-trial mean that as a administrative matter thermore, failed inform the guilty charged has found defendant been eight years during four of as dis prosecuted, else he would not have been 1972-1976, constitutionality attorney, trict level administrative determination very Georgia's statute binding upon highly per- either or else much in doubt. impro- suasive it.” Additional reasons for the man, How the if about he’s electrocut- the protections. In context of the numer- ed, actually pulls switch, who the is he prosecu- ous other comments made the responsible taking his life? Of pro- tor that were cure a decision that intentional effort to person course not. The sible for his self, is respon- who not based on was a life is William Brooks him- evidence, of the they rational assessment can pulled and if the switch is and he’s See, only improper. e.g., be seen as death, put pulled he the switch the California, Griffin morning that he walking along was Saint (exercise (1965) S.Ct. of cannot Mary’s put gun when Road he in right fifth to remain silent amendment Galloway back Carol Jeannine napped and kid- upon by prosecutor). be commented her, that’s when he took his own prosecutor urged jury then man, grown life. He’s a and he knew safety prison guards consider the and doing. what he was prisoners: their families as well other as Georgia, jury In is the final sentenc- So, you put him prison. How about ing authority capital Arguments in a case. guards those They who guard have to him? responsibility which trivialize this consistent with the are in- them, depending have families jury’s role in a death you do he how of them? know that won't kill one case improper.12 and are therefore And, suggested that, that Mr. even worse than how about Next young prisoner, death for some or pris- sentenced to some should be other Brooks exercising him, prison right trial. oner who is with to stand who is his time, trying there be his trying make going to I’m sure Now go can rehabilitated so he back to his Araguel, made, by Mr. or either family, society? back to He could that, kill jury member maybe some him, kill prisoner. a fellow bad, maybe penalty is the death “Well let me something else.” Well can do suggest He then went on to that Mr. you in it. I I believe you; this to told say William Brooks might escape kill one their pen- in the death believes loved ones: executing people. He he alty, believes How about if he escapes? And I’m sure Galloway Jeannine down Carol carried those woods body. they going “Oh, say, he couldn’t every- sight out of But, escape”. early part it year, year, now, this that man or last I don’t recall Galloway a did Jeannine Carol escaped prison from a her, she lawyers didn’t battery of around escaped Tennessee that no one had ever ruling sitting there on the judge have a So, you always from before. have the evidence, get twenty strikes she didn’t possibility might escape that he selected, jury was she didn’t when have might streets, be out on the and who cameras so that courtroom with time, knows who it will next whose got see that she the whole record could daughter it It will be next time? fair trial. Galloway’s time, daughter Mrs. Bob- point-blank by Murray’s girl just stepped girl back at friend? Whose He range daughter or three feet of her killed friend if within will be next time So, her, he is out? her. he believes shot her, penalty, he executed a lot go beyond proper These remarks focus far than the electric chair more horrible sentencing hearing. quick is a ... which They jury’s serve speculation fuel a matters, urged jury to clearly prison statements about irrelevant ty These punish i.e. securi- exercising constitu- respect, Brooks for his administration. they before them. jury “belief” in rights well as own divert the from the real tional the death task Furthermore, There also was penalty. these com- system implication help were ments not intended to unmistakable criminals, expense of at the law make rational coddles abiding assessment evi- citizens, by giving procedural Rather, they them dence. intended to in- were arguments 12. Similar rejected by have been of whether the defendant will live die. Com- Georgia Supreme being Court as appellate safeguards inconsistent ments about on the death jury’s e.g. Fleming State, role. See penalty suggest pass can 240 Ga. S.E.2d 37 "The responsibility for the death on to this given heavy making burden of the decision court.” 240 atGa. 240 S.E.2d 37. and, on dogs, you go hospital make decision based if to the to see them to a fluence fear; guards friends, of your you’ve got get for the life the either fear some of to there, life or by security guard up you fear their own a prisoners, or those of and guards Why security everywhere. their families. see are element the they there? Because of in this criminal jury appealed then to the The country. winning. It’s impose to save them- taxpayers as selves other to death And, year if we can a seventeen old send feeding housing and an- the of cost enemy to kill an young man overseas prisoner: soldier, asking you it too for to much ask this, maybe say to and going is—I’m This go penalty and death to in back vote me, with and I’m sure agree you don’t Brooks, against William and this case being accused of materialis- I will be that tic in you enemy, I to he is and submit it, why he’s saying should—if element, he’s a member of the criminal life, him, money to given keep costs it enemy, enemy and a and he’s our the who he’s keep year a thousands of dollars a to people abiding citizens and the law clothed, housed, prisoner and feed and in peacefully to live this coun- want care, why taxpayers, should medical and that’s try, to in and who want be secure their folks, us, why all of you persons and their homes. keep to taxpayers some- should have know, people times see you You a lot of like the rest of body William Brooks street, they always and are life, why ... should we? know, saying, stopping us “You and many previous like so This something crime nant: What can we Mr. got has to be done about this attorney statements offered the district wave, do, what can Mr. we Whis- completely irrelevant to the offense was do, Smith, we’ve However, they pro- and to the offender. Well, got something you to do about it.” to a reason for vote for vided death dens. opportunity something to have an do penalty, i.e. to ease their tax bur- right police it in- about now. have arguments Such are indefensible.13 vestigated the prosecuted this we’ve a attorney turned to next The district how, you in best know and are easily classi- that most line discussion Truman, position Harry had who argument. “The on Crime” fied as War said, a “The sign on his desk stops buck my life- say you, during to me this Let stops you here.” The buck with wars, country has three been time each today. you something And can do about young men have taken our war we bring penalty it. can death You back the trained age of we’ve to the down Brooks, you you and can can tell William and hands, them, their put guns in we’ve him, every criminal like tell other enemy kill taught to we’ve them how you and if come to Columbus Musco- they them overseas and and we’ve sent crime, gee County, you commit a and and beings who are killed human other punishable it’s one of those crimes that is they country, and when enemies did a orated our death, get you going ... them, killing we dec- good job of chair, you electric that’s what can do. citations, gave them them and stop And I that that will some of believe Well, you say it. I praised them for crime____ And, you the William Brooks is a cancer on I submit to again this coun- in a war that we are try, body nation, foreign its except not it is society, going if of society and we’re save coun- against the criminal element civilization, then save we’ve with, and at war that’s we are try, who got society. from to remove them war, so winning they are what’s they are bad, you clearly and if don’t believe These remarks were intended you. don’t winning, just attorney place look You Mr. about the district within a faceless undifferentiated mass night get out on streets dare your around, criminals, dare leave you body don’t “a on the cancer socie- walk fact, everybody Therefore, most they ty”. unlocked. were intended house their possibility I more locks to know has added eliminate the that the would bars, house, burglar burglar and man upon base its decision individual ture character of the And, defendant, Brooks, here got we’ve na- alarms. guard living prosecutor urged of his who makes crime. town Jordan, (Arz.1956); State v. 294 Pac.2d 677 examples Com 13. For of state court decisions con- Clark, (Penn. 1936). indefensible, monwealth v. 185 Atl. 764 demning arguments such see order send mes- highly misleading improper and/or consid- sage criminal element. It fur- to the erations into the life/death decision before only way ther indicated jury. Any one, two, or more of these save themselves ever could statements pen- have rendered the return a escalating war on crime phase alty fundamentally por- unfair. The of death in this case.14 verdict tions of the pre- discussed in the opinion vious section of this constitute vir- just resting, prosecu- Finally, before tually the whole substance of the district apparently to the all appealed tor white attorney’s penalty phase. statement at the Recounting grounds. por- a on racial (See appendix opinion to this for the police, of to tion Mr. Brooks’ statement closing argument in full. The objectiona- attorney the district remarked: comprises ble approximately material eight walking along a just ... he was pages of fourteen the transcript.) of This “well, pistol decided, pocket in his and I’ll argument, therefore, literally could serve hustle,” language, to their make a use as a prosecutors handbook on what should language. his Furthermore, not do. argument this oc- contention, Despite majority’s this re- curred penalty at the phase of the trial. mark can be seen as a racial refer- decision, The life/death because its fo- clearly improper, ence. Such remarks are cus on the character the defendant and Haynes rel. see United States ex subjective nature, thus its is to easier dis- McKendrick, (2d Cir.1973), 481 F.2d 152 tort through misleading, improper and in- attempt subtly highlight an and were flammatory statements. To hold argu- this a race the defendant as factor the ment to be within the bounds fundamen- jury’s an no decision. Such has tal fairness is to virtually concede that any phase capital trial. See place in of a argument, no per- matter how vitriolic Stephens, Zant missible. (1983) (race of defend- Finally, constitutional error this improper aggravating ant is as an circum- argument was not harmless.15 The state stance). has not beyond shown a reasonable doubt IV. Conclusion the egregious argument had no effect on the sentence. weight The cumulative whole, Considering argument as a improper numerous statements made inescapably prosecu- one concludes by prosecutor here well have sentencing tor’s rendered the tipped the scales in favor of the death hearing fundamentally unfair. From be- penalty; certainly it cannot be said: there clearly designed ginning end it was not is “no reasonable possibility [argu- suggest jury make rational might have ment] sult. contributed to the” re- of the evidence to or not to assessment impose the death but to render a upon irrelevant and inflam- decision based matory suggestions appealing to their col- APPENDIX biases. This is not a lective fears and Closing Argument of Attorney District where the made one situation at inflammatory Sentencing remark potentially Phase proper argument. of an otherwise course (Trial Transcript 859-873) at Rather, argument proceeded from one this MR. improper and statement to anoth- May comment WHISNANT: please it Court, consistently injected you, and er. The statements gentlemen ladies and of the 14. These comments had even more on ular effect attitude and fears Columbus at the time jury due fear of Mr. atmosphere Colum- Brooks' trial. resulting bus from the unsolved community strangulation highly and rape four In some respected cases in this procedural it posture, older white residents of Columbus the "silk would be by give appropriate remand the case strangler” stocking preceding in the two months the state the to meet its opportunity burden to States, trial. See Viereck v. United 318 U.S. 236, show that the error was harmless. In this case, (1942) ("At 247, 63 561, 566, 87 L.Ed. 734 however, egregiousness due to the argu- of the prejudice heightened time when and passion ment and the fact highly this series of great emotions stired by participation statements improper occurred the penalty war, we do not doubt these remarks ... of Mr. phase Brooks’ trial, such a capital show- highly prejudicial.”). were ing These remarks were could not be made and a remand not and made even more so improper partic- necessary. this about here heard you’ve of crimes week, if punishment, had when we I jury, you your thank again patience, seldom, heard we very they were they were stage trial, and is the last this of the else, somewhere them about around you’ll the last time have to hear me or Mr. here. Araguel you. you’re talk I know that this, Now, you have let’s think about But, hearing tired of us. impor- is an Anthony Brooks all looked at William part trial, just tant the important as as week, here been surrounded he’s been and guilt stage trial, or innocence you’ve seen him. Let’s lawyers, you and we ask to treat just as person who is not a minute about the talk here, important phase as the first of the trial. Galloway. about Carol Jeannine verdict, By your today, you noon know person was she? We What kind of have found this defendant guilty of mur- lady, pretty young a beauti- that she was der, kidnapping, armed robbery rape, lady. We know that she was young ful and where we fix his the stage we’re at of the trial now old, twenty-three years she was not about punishment, you fix his married, still lived with her mother that she punishment, murder charge. father, that she was a know purpose, one has a two-fold Punishment know she person high morals. We that offender; punish guilty purpose is to person. out a considerate She went was deter of a purpose the other like mind crime. In other is to others her up garbage can to save picking mother or father committing type same having from to do that. words, somebody if else is thoughtful per- she a We know that was murder, you punish if this thinking about son, going she treat her friend to was to person supposed man from purpose to deter the other it’s her friend left before town. breakfast committing it. that’s the two-fold So Sanders, So, Araguel, Mr. Mr. or when punishment. side, argument on whoever makes the starts that Now, phase talk let me about the first life, talking about William Brooks’ it, is punish guilty. to Punishment Brooks, a and about about what William supposed In adequate appropriate. to and is, family, person he think about young the his words, punishment supposed is other fit family. And think Car- Galloway about crime, crime in this case to and the Galloway, is here in ol who Jeannine person. life is He took the of a murder. today, and who will never the Courtroom be here So, you’ve pun- got to decide what kind of again. crime, gets ishment fits that life chair. that death in the electric chair. We’re whether he Now, going you, tell take they’re to don’t imprisonment, electric or death life, locking up him William Brooks’ And, say we in these circumstances him, enough, put death on don’t make don’t punishment is only appropriate family through go his with that. What has going to family Galloway gone through, what say to I have some more about that before they through? Next gone have it’s around the week when sit down. Thanksgiving, they sitting and are Now, you’ve I heard know discussions table, Carol Jeannine won’t be you penalty, about death were asked there, again. and will be there never Tuesday it questions about last numerous when we you you Now, penalty ask the death we don’t for trying were to select a and Attorney for and —I’ve been District seven prospective jurors. Let me tell were years, we take a half and don’t this busi- I at the that am for here outset asking penalty light- ness of the death sides, you’ve I punishment. take the got If to take ly. up every come here on mur- We don’t I capital punishment. be- side try say, and der case that man half “Give penalty. it’s lieve in the necessary. Araguel I think chair.” In the and a electric seven people, And I’m Mr. some sure Attorney, I years I’ve been District you going to tell that there is no a believe asked for it less than we’ve crime,

proof you that the death deters times, eight I think nearer or dozen nine, it’s this; But, you it. I can prove can’t tell So, it’s than but I know less twelve. Georgia was person the last in electrocuted seriously. you ask take it we take it We to date, crime has and since seriously. It is a serious matter. time, year year, time after increased everytime Now, out, do we consider before we the statistics come we have what you you impose and ask to an in crime rate. We didn't have come death that we consider increase Well, things penalty? one of the capital punishment. had We when we murder, facts of the case didn’t these kind have kind chance that William Anthony Brooks will ever horrible crime be rehabilitated. tried. Was it a Let’s being look at that’s what he stop And let’s there did. He’s been in trouble he was committed? since a was child. His you and look own the facts sisters told look at that he and was a car Here was thief when he type young of crime this was. was a at what child. And, they Galloway you a summer Fri- talked to being Jeannine about him Carol ready go stepfather, beaten morning, getting they his day but never did friend, gar- say a what his stepfather sees beating with her she breakfast decides, “Well, for, him maybe and he it. can outside there needed There’s bage noth- ing wrong child, pick up up my whipping it mother put it and a I’ll some of father,” it, you them my whip or have to she have to do harder than so won’t others. And, And pick up. there’s been going to children who whoever was have been Brooks, beaten, abused and Anthony they but along comes William don’t turn ato life of crime on her and didn’t account of probably seen before it. never Goodness sakes, got pistol whippings I her, child, had his I but he when was a know I her, get thought my daddy puts me, makes her he it on used beat pocket, and did, there, he car, give out takes her but that doesn’t drives her me into excuse woods, go out and makes her take her commit a into the crime. The down fact her, got beating he off, rapes and then after he’s when he was ten clothes old, do; eleven lust, years he give what does he does that his him the satisfied right stop you somebody’s her down like put around and shoots house and turns gun back, And, in their dog, stray dog. didn’t and he drive them would down to woods, then, strip screaming them, them rape her he said she was and kill fell, then her, satisfied, still after his he she lust shot murder scream, state- them? That’s they he said what trying ment, you so want to buy, out, that’s what you wouldn’t come want accept. sound Just death, drip he very slowly, got because she bled to some severe and whippings when child, I he drop by drop. pray that she was was a drip, you ought that to forgive that, him the kind of for ought That’s condition or that unconscious. he to that, right have a lady left You wouldn’t do to do something he in. like that. said, you society Our stray and our I to animal that wanted law was never de- signed of, that, you accept treat it like that. to get anything rid wouldn’t like to But, and it’s ridiculous, did to I you’ll what and don’t that’s William believe that it, accept you I Galloway. you’ll If sat down don’t buy Jeannine believe Carol it. crime, up think a horrible could and tried to Now, I’m they’re sure going to say, anything than you think of more horrible young person, just “He’s a twenty-two week, you’ve that this what heard here this years old, Well, child, let him live.” he’s no young lady? defendant committed this fifteen, he’s Now, not grown he’s a man. you anything more think of horrible? Could you can vote you’re eighteen when years old, you go can buy right, and thing All and beer when another that we con- you’re eighteen old, years you can sider before we serve on you come to and ask for juries, property in your death penalty proof name is in the when you’re eighteen. just years He’s prove not that we him four guilty beyond a beyond that, grown, he’s a you reasonable mature doubt and find him man. guilty, mean, I overwhelming proof, you and And, thing, another young, he is and if have that in this case. already You’ve you look have, around and I’m you sure guilty, found him I’m you agree and sure that’s group committing that’s crimes with what I morning said this country, young people, are the and evidence in against this case William if you punish young don’t people, then overwhelming, it, Brooks is he did there’s you’re not punishing people who are question it, no about and it was a horrible committing the crimes. He’s a mature crime. man, and he doesn’t any deserve credit or any sympathy you just from because he’s And, another thing that we consider be- twenty-two years old. fore we ask for penalty, the death I’m and you’re sure going to hear this from the Now, I’m question sure another defense, is rehabilitation. Is there might going through your mind at this might chance that the defendant be rehabil- is, room, time get when I back to that thought itated? we And that in this about vote, and we have to and I to vote take And, you I case. to submit that there’s no somebody’s life, can I it? do I know it’s going say, is to then, somebody And sympa- about sympathize, what “Can we rough, hard for me to do. Can it would be him?” toward sympathetic thy, we can’t Well, somebody’s I life? the truth of take him the is show to that only answer is, life, taking you’re the matter not his he showed sympathy that type of same you’re pulling the switch in the electric not sympa- Galloway, the same Carol Jeannine chair; investigated police case who her, laying her left he showed thy that Brooks, apprehended William and who her, her taken had there, he robbed after life; taking his they’re not Recorder’s lust, killed her. he still car, his satisfied and Judge who heard the evidence Court bit of not one sympathy, spark of one Not hearing, say preliminary you going His for her. he show did sympathy taking responsible for his he’s life? Of he did away, and get thought then was to Jury course not. How about Grand muddy, and got his shoes away. He get listened the evidence and indicted who new shoes bought him some went and murder; re- him are the Grand Jurors her. No remorse money off he took life, you say they’re sponsible for his can him, and due So, sympathy no he has all. take his Of course not. about life? any. him to show you not askwe staff, put me my How and we about him, together prosecuted case and we and right, All I’m sure that the defense is asking you bring we’re here now back going you, to make this we penalty, responsible? do feel the death life, you don’t have to take his don’t have my I anybody don’t. I don’t think office life, just up, put to take his lock him him does. away somewhere where he’ll never be in again, society where he’ll never any- harm man, electrocuted, he’s How if about body again, punishment enough, that’s switch, actually pulls respon- he who is life, spare just put away him forever. taking his Of course not. sible for life? Going Let’s think about that. back to what person responsible who his life is ago, thing I you’ve said a while the first himself, William Brooks and if the switch is got give appropriate punishment to fit death, pulled pulled he’s put he crime, letting appro- him live morning walking he switch along priate committed, for the crimes that he put Mary’s Saint Road when he thing. thing that's the first And the next gun Galloway in the back of Carol Jeannine is, he has he’s a demonstrated that killer. her, kidnapped when he took his that’s Anybody poor can who kill defenseless man, grown He’s he own life. knew per- person, poor or murder a defenseless doing. he what again. son like he did will kill He doesn’t Now, going to I’m sure that care, anything life doesn’t mean to him. made, Araguel, maybe or either Mr. So, you put prison. him in How about that, “Well, the some member of guards guard those that have to him? bad, penalty maybe do we can They them, depending have families on Well, say to something else.” let me you how do know he kill one won’t of you; you I I in it. told believe William them? he penalty, in the death Brooks believes And, that, even worse than how about executing people. He carried believes prison- some young prisoner, or some other Galloway down those Carol Jeannine him, prison er is in who with who is there everybody. sight of of Carol woods out time, trying trying to make his to be reha- Galloway battery of Jeannine didn’t have a go family, bilitated so he can back to his her, a lawyers have around she didn’t him, kill society? back to He could kill a evidence, judge sitting ruling on she there prisoner. fellow get twenty strikes when the didn’t selected, And, escapes? didn’t have Court- she How about if he I’m sure “Oh, they’re so whole world going say, with cameras to he couldn’t room es- just But, got cape.” fair trial. He early part see that she a it was the of this could stepped range now, point-blank year, year, within late I back at last don’t recall her, her. escaped prison and killed shot that man from in Ten- three feet So, her a a he penalty, escaped in the death that one from he nessee no had ever believes her, So, always got possibili- horrible than you’ve executed a lot more before. thing, brings quick ty might escape which is a he out on the electric chair and be lay per- streets, there quickly. death on real She and who it will be next who knows time, daughter a or two hours haps an hour and half whose will it be next time? time, daughter Galloway’s she bled to death. It was Mrs. before know, You you lot of times people see friend; street, and Murray’s girl girl they are Bobby always stopping whose us saying, know, and daughter will it be if “You something’s friend or next time got to wave, done about he’s out? this crime what can do, Whisnant; we Mr. do, what can we Mr. this, say to going And this is—I’m and Smith, got we’ve do something it.” about me, you agree maybe don’t with and I’m Well, you have an opportunity to do some- being sure I’ll be accused of materialistic in thing right it police about now. The have it, why saying given should —if he’s investigated the prosecuted we’ve life, him, money keep it costs thousands how, best you’re we know and year keep housed, a prisoner dollars position Truman, Harry who had on his clothed, care, and why fed and medical sign said, desk a stops “The buck folks, taxpayers, you should the and that’s here.” The stops buck you today. with us, why taxpayers all of should the have to you And can do something about it. You keep somebody up like William bring can back you the death and life, rest of his when he’s done what he's Brooks, can tell you William and can tell Why done? should we? every him, other criminal you like if say you, my during Let me this to life- come to Muscogee Columbus and County, wars, country time this has been in three you crime, and commit a and it’s one of young each war we’ve our taken men down those punishable crimes death, that’s age seventeen, to the we’ve trained if aggravating and circumstances are them, hands, put guns in we’ve their we’ve there, you’re going get chair, the electric taught enemy them to kill the how and you that’s And, what can do. I believe that overseas, they we’ve sent them and have stop will some of the crime. beings killed other human who were ene- Now, I going know it’s to be a hard country, our mies of and did a when decision, easy, it’s not easy. it’s never You them, good killing job of we decorated way can think about you get it this when citations, gave praised them and them them there, you back know from time to time if for it. you surgeon, you people were and have Well, you I say to that we’re in a war coming you maybe they and have again country, except in this it’s arm, it, you cancer on their and look and nation, against foreign it’s the criminal ele- “Well, you say, only way your to save country, ment in this that’s who we are at your off,” life is to take arm and that’s bad with, they’re war, winning war and to have to remove someone’s arm. Or bad, you so if what’s don’t believe maybe got eye, you he’s cancer they’re winning, just you. look about You eye Sure, terrible, to take his out. that’s get night don’t dare out on the streets at you but it’s done because save rest around, you your walk don’t dare leave And, body. you I Wil- submit to fact, house unlocked. most everybody I liam body Brooks is a cancer on the house, know more has added locks to their society, if going society and we’re save bars, burglar burglar alarms. civilization, got and save then we’ve And, got we’ve a man here town who society. remove them from And, living guard dogs. makes a if And, you know, thing people it's one you hospital go your to see some of oppose punishment who dispute, they can’t friends, you’ve got get by security to a death, put if he’s to he’ll never there, place up you security guards and see crime, commit any- another he’ll never kill everywhere. Why are Be- there? body else, never rape anybody else. cause the criminal element in coun- this try. winning. It’s Now, you, you’ll ask and we written And, 17-year-old young if we can send a you, in going instructions out with and soldier, man enemy overseas to kill an you it impose penalty, to the death order asking go much you too to ask to and back was find that while the murder must first penalty vote for the death in this case engaged in certain committed he was Brooks, against William I crimes, and submit kidnapping, certainly one is other you enemy, that he’s an he’s a and member in he committed engaged he was that when element, of the criminal murder, away and he’s our ene- her from her he carried the my, enemy he’s an the law-abiding and she against her will. You recall that home and people breakfast, citizens the who want to live she to eat appointment had an peacefully country, in and who want to going anywhere she had no idea would persons in secure their and their homes. Shoney’s. other than 1448 deleted, and the words hereby claim” are “an in lieu argument” are substituted her, is, he com- thing robbed The other thereof.* robbery, you find that if an armed mitted he committed petitions IT IS ORDERED the for he murder the while rehearing in filed the above-entitled and these two in one or both of engaged either and the same are here- numbered cause be mentioned, kidnapping the that I’ve crimes by DENIED. you authorized robbery, then or armed And, penalty. me the let impose to talk to death CLARK, Judge, dissenting, with Circuit Tuesday you that minute. about JOHNSON, Circuit KRAVITCH whom examining prospec- as of you we were when tive Judges, join: you the I each one jurors, asked conscientiously opposed question, you “Are I of the en from the decision banc dissent every one of penalty?” And death rehearing case. The deny in this court to no, you not. were you said majority’s use of the Strickland Wash- further, you I if — step I and asked went one -, ington, U.S. S.Ct. penalty as you the death would consider (which (1984) prejudice test L.Ed.2d possible penalties, and would one of the petitioner requires that show that but facts circumstanc- you if the vote argument improper the result of for the the is in conflict with it, case or warranted es of this authorized different) proceeding would have been course, what the you it. didn’t know Of recently Su- decided at that time. circumstances were facts and But, Mississip- preme Court case of Caldwell v. And, — you you one said would. each -, pi, U.S. asking you again go back we’re (1985). L.Ed.2d 231 deliberate, and to talk

jury room and to Caldwell, Supreme in Court evalu- of this and circumstances about case. facts ating impact improper of an eight-thirty Talk how about used edge out morning she went trial phase of Caldwell’s concluded: he daylight, and how yard open in broad say we that this effort Because cannot along pistol in his walking just jury’s responsibility minimize the [to determining decided, “Well, I’ll make hus- pocket, and appropriateness tle,” language. language, to use their penalty] had no on the sen- effect “Well, that, rape I’ll then after he did And her,” decision, that tencing decision does not woods, he carried her in so down reliability meet standard her, her, raped shot and left her requires. Eighth Amendment bleeding to death. Those are there facts — at-, (empha- 105 S.Ct. at 2646 talking and circumstances we were added). sis if, Tuesday, you un- we asked about der certain when circumstances, you would vote language used is, essence, penalty. para- in for the death Court Caldwell phrase of the harmless error test used penal- you’ll for the death I believe vote cases, notably numerous most Court it, you go ty. I out and discuss want in Chapman California, need, you and the ask the time that take all you As I S.Ct. maintained L.Ed.2d 705 bring punish- a verdict on back special my concurrence phase, put he be to death ment and that this patible prejudice the harmless error test incom- the electric chair. Washington with the Strickland v. test, shifts the burden of which FOR REHEARING PETITIONS ON petitioner proof to the to demonstrate that GODBOLD, improper for the the result Judge, but of ent. Before Chief RO- HILL, VANCE, TJOFLAT, FAY, proceeding would differ- NEY, have been JOHNSON, HENDERSON, KRAVITCH, HATCHETT, CLARK, ANDERSON, and Furthermore, prosecutor in this case Judges. Circuit penalty phase made indi- statements cating penalty sought the death he seldom PER CURIAM: gave the factors he con- then deciding whether to seek the opinion hereby de sidered Footnote particular The penalty in a case. the second death In the last sentence of leted. majority of the en banc court was troubled the words “a paragraph footnote * changes incorporated opinion p. These were 1407. i.e., prosecu- argument,

by torial type argument. The root of the expertise identical to majority’s concern was en banc that i.e., majority, espoused the Caldwell prosecutor’s would statement that the responsibility for sense of jury’s lessen the determining death appropriateness majority Additionally, penalty. in this case recognized that effect. The prejudicial some had at least majority stated: Although we conclude cannot improper arguments

these few had no prejudicial jury, effect on the we are prejudice satisfied the was not severe. Kemp, (11th

Brooks v. 762 F.2d Cir.1985). Therefore, the inescap- conclusion seems opinion able that case court’s en our banc in this Supreme conflicts with the Court’s holding Mississippi, supra. Caldwell majority our court found that the prosecutor’s argument the effect had some sentencing decision in Brooks’ case. Court in Caldwell held that the constitutional reliability standard of sentencing phase required another sen- tencing proceeding unless it able to find prosecutor’s argument had no upon effect the jury’s decision. Conse- quently, I think we err we do when opinion reconsider our Brooks and I

therefore dissent. DRAKE,

Henry Arthur

Petitioner-Appellant, Warden, KEMP,

Ralph

Respondent-Appellee.

No. 83-8047. Appeals,

United Court States

Eleventh Circuit.

May 1985.

Rehearing En Banc Denied

July

Case Details

Case Name: William Anthony Brooks v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jul 23, 1985

Citation: 762 F.2d 1383

Docket Number: 83-8028

Court Abbreviation: 11th Cir.