Parks v. Brown

HOLLOWAY, Chief Judge,

with whom McKAY and SEYMOUR, Circuit Judges, join, concurring and dissenting:

I concur fully in the persuasive analysis in Judge Ebel’s opinion with respect to Part II on the anti-sympathy instruction, and in *1560 the disposition in his opinion holding unconstitutional the death penalty in this case. I respectfully dissent from the conclusion and analysis in Part I of Judge Ebel’s opinion concerning the Caldwell issue. For this reason I join in the opinion of Judge McKay and agree fully with his view that there was a Caldwell violation here under the Supreme Court’s standard expressed there that “we cannot say that this effort [minimizing the sentencing jury’s responsibility] had no effect on the sentencing decision ...” (quoting Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646).

Judge McKay has convincingly explained his conclusion that there was a Caldwell violation requiring invalidation of this death penalty. In addition to his forceful reasoning, I note that the concerns of Caldwell apply in the circumstances of this trial under Oklahoma criminal procedure with special force. The prosecutor’s arguments under the Oklahoma procedure followed the instructions to the jury at the penalty phase. Under 22 O.S.A. § 831(5) and (6), instructions are given to the jury before the argument by counsel; then counsel for the State commences, defense counsel then argues, and counsel for the State concludes the argument to the jury. When the arguments are concluded, if the court is of the opinion that the jury might be misled by the arguments of counsel, the judge may further instruct the jury to prevent such misunderstanding. 22 O.S.A. § 831(6).

Here the procedure outlined above was followed as to the sequence of instructions and subsequent arguments, but the trial court did not elect to give any further instructions on the law to avoid any misleading. There was a supplemental instruction in response to a question about the verdict form, but there was none concerning the jury’s responsibility on the life- or-death decision. The record shows no objection or request by defense counsel for such an instruction; nevertheless the damaging effect of the arguments on the jury’s perception of its responsibility was fundamental and cannot be dismissed. See Caldwell, 472 U.S. at 334 n. 4, 105 S.Ct. at 2642 n. 4 (citing Hawes v. State, 240 Ga. 327, 333 , 240 S.E.2d 833, 839 (1977) (setting aside death sentence in spite of counsel’s failure to object to prosecutor’s argument)).

The prejudicial arguments of the prosecutor here to the jury on its function followed all of the trial judge’s instructions on the jury’s responsibility in deciding whether to impose the death penalty. 1 The lack of any corrective instruction to the jurors on their responsibility is a factor of special concern. The importance of such corrective instructions after jury dilution remarks has been emphasized by two courts of appeals in post-Caldwell decisions. See Harich v. Wainwright, 813 F.2d 1082, 1095 (11th Cir.1987); Tucker v. Kemp, 802 F.2d 1293, 1296-97 (11th Cir.1986), cert. denied, 480 U.S. 911 , 107 S.Ct. 1359 , 94 L.Ed.2d 529 (1987); Celestine v. Butler, 823 F.2d 74, 78-79 (5th Cir.), cert. denied, — U.S. -, 108 S.Ct. 6 , 97 L.Ed.2d 796 (1987); see also Donnelly v. DeCristoforo, 416 U.S. 637, 641, 644 , 94 S.Ct. 1868, 1870, 1872 , 40 L.Ed.2d 431 (1974) (corrective charge was given after improper prosecutorial argument).

Accordingly, I join in the view of Judge McKay that there was a Caldwell violation which itself requires invalidation of this death penalty, while agreeing fully with Judge Ebel’s opinion that there was a violation of California v. Brown and his disposition of this habeas appeal.

. These arguments included the statements that the jurors had become "a part of the criminal justice system that says when anyone does this, that he must suffer death ... [0]nce your verdict comes back in, the law takes over. The law does all of these things____ You’re just part of the criminal-justice system that says when this type of [sic] thing happens, that whoever does such a horrible, atrocious thing must suffer death.”

The prosecutor further stated: “Now, that’s man’s law. But God’s law is the very same. God’s law says that the murderer shall suffer death. So don't let it bother your conscience, you know.” (Record Vol. 6 at 707-08.).