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

> Court of Appeals for the Eleventh Circuit · July 23, 1985 · 762 F.2d 1383

URL: https://www.frixlaw.com/law-library/cases/9473503

## Case

- **Full name:** William Anthony BROOKS, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 23, 1985
- **Citations:** 762 F.2d 1383
- **Precedential status:** Published
- **Opinion:** Dissent by Johnson
- **Judges:** III, Godbold, Roney, Tjoflat, Hill, Fay, Vance, Kravitch, Johnson, Henderson, Hatchett, Anderson, Clark, Ro-Ney
- **Cited by:** 219 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Kemp v. Brooks, 478 U.S. 1016 (1986).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473503

## How later opinions describe it (automated extraction)

- holding it improper to even imply “to the jury that the prosecutor’s office had already made the careful judgment that this case, above most other murder cases, warranted the death penalty”
- rejecting argument that instruction that “intent may be presumed” cured a mandatory rebuttable burden-shifting instruction as to malice, i.e., intent in the absence of provocation or justification, because “[a]t best, the contradictory instructions as to intent and malice may …
- finding that arguments based on special and general deterrence are appropriate in light of accepted penalogical justifications for use of death as a punishment
- holding arguments regarding possibility of escape proper because they were "arguments about Brooks' future dangerousness [which] were appropriate inferences from the record before the jury"
- finding that potential prejudicial effect of undesirable prosecutorial commentary was minimized by its brevity

## Opinion text

JOHNSON, Circuit Judge,
dissenting:
I. THE PROSECUTORIAL ARGUMENT CLAIM
The majority approves a prosecutorial argument • similar to the one found “fundamentally unfair” in Hance v. Zant, 696 F.2d 940 (11th Cir.), cert. denied, 463 U.S. 1210 , 103 S.Ct. 3544 , 77 L.Ed.2d 1393 (1983), noting simply, and without examination of that opinion, that “we ... overrule] any implications in Hance inconsistent with this opinion.” Because it is not possible to reject the standards articulated in Hance without also abandoning the well-established constitutional principles from which they derive, I dissent.
A. CONSTITUTIONAL FRAMEWORK
Our decisions concerning prosecutorial argument, like those concerning other features of the capital trial, have been informed by the conviction that “death is a different kind of punishment from any other which may be imposed in this country.” Gardner v. Florida, 430 U.S. 349, 357 , 97 S.Ct. 1197, 1204 , 51 L.Ed.2d 393 (1977). This difference has required protection, by means of procedural safeguards and continuing judicial vigilance, to assure that the imposition of the penalty is not the product of arbitrariness or caprice. See, e.g., Zant v. Stevens, 456 U.S. 410, 413 , 102 S.Ct. 1856, 1857 , 72 L.Ed.2d 222 (1982); Godfrey v. Georgia, 446 U.S. 420, 427 , 100 S.Ct. 1759,1764 , 64 L.Ed.2d 398 (1980); Gardner v. Florida, supra, 430 U.S. at 357-58 , 97 S.Ct. at 1204-05 ; Gregg v. Georgia, 428 U.S. 153, 189 , 96 S.Ct. 2909, 2932-33 , 49 L.Ed.2d 859 (1976); Furman v. Georgia, 408 U.S. 238, 242 , 92 S.Ct. 2726, 2728 , 33 L.Ed.2d 346 (1972) (Douglas, J., concurring).
To reduce the possibility of arbitrariness, courts have applied careful scrutiny to prosecutorial arguments which appeal to the emotions of the jury. An emotionally inflamed jury may not be able to weigh the relevant considerations with the care and deliberation demanded by the gravity of the penalty. Yet both the Supreme Court and members of this Court have recognized that some types of emotional response may be wholly appropriate to a capital sentencing proceeding. Because capital punishment may be understood as “an expression of society’s moral outrage at particularly offensive conduct,” Gregg v. Georgia, supra, 428 U.S. at 183 , 96 S.Ct. at 2929-30 , a response of fury or horror at the enormity of the defendant’s crime is an acceptable, perhaps necessary part of the imposition of the death penalty. But this principle, too, must be qualified, because the retributive justification requires that the penalty be imposed only on those deserving of society’s ultimate sanction, see Gregg v. Georgia, supra, 428 U.S. at 183 -84 and n. 30, 96 S.Ct. at 2929 -30 and n. 30. Outrage which is directed at the heinousness of the crime of murder in general, or at the danger that murderers as a group pose to society, is an impermissible basis for the imposition of the death penalty, as it “treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976) (striking down North Carolina mandatory death penalty statute for unconstitutional lack of individuation in application of penalty). See also Enmund v. Florida, 458 U.S. 782, 798-801 , 102 S.Ct. 3368, 3377-79 , 73 L.Ed.2d 1140 (1982); Lockett v. Ohio, 438 U.S. 586, 605 , 98 S.Ct. 2954, 2965 , 57 L.Ed.2d 973 (1978).
*1425 Thus the permissibility of a prosecutorial appeal to the emotions of a jury depends on the nature of the response which is evoked. Appeals which are supported by the evidence and relate to the circumstances of the ease are permissible, for they incite only that acceptable form of outrage which responds to the defendant’s crime. See Cronnon v, Alabama, 587 F.2d 246, 251 (5th Cir.), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 792 (1979) (prosecutor’s graphic description of murder and characterization of criminal permissible if evidence supports them). Arguments which lack support in the evidence, or seek to play upon the jury’s undifferentiated fear or hatred of violence, are impermissible, as they encourage arbitrariness in the imposition of sanctions and preclude the individualized judgment required by the Constitution. Cf. Houston v. Estelle, 569 F.2d 372 (5th Cir.1978) (prosecutor’s repeated unsupported references to defendant as liar and dealer of drugs impermissible).
The avoidance of arbitrariness in the jury’s exercise of its discretion also requires that jurors be “confronted with the truly awesome responsibility of decreeing death for a fellow human____” Lockett v. Ohio, supra, 438 U.S. at 598 , 98 S.Ct. at 2961 . The Court addressed this requirement in its recent opinion in California v. Ramos, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983). While declining to hold unconstitutional an instruction informing the jury of the Governor's power to commute a death sentence, the Court emphasized the detrimental effect of the diminution of a jury’s sense of responsibility for its decision: “advising jurors that a death verdict is theoretically modifiable ... may incline them to approach their sentencing decision with less appreciation for the gravity of their choice and for the moral responsibility reposed in them as sentences ... [and] may operate to the defendant’s distinct disadvantage.” 463 U.S. at 1011 , 103 S.Ct. at 3458 . This detrimental impact is substantially increased when the invitation to jurors to ignore their responsibility is more open and explicit. The Georgia Supreme Court recognized this principle in Prevatte v. State, 233 Ga. 929 , 214 S.E.2d 365 , when it held that statements from the court or prosecutor referring to the possibility of appeal were impermissible. The court concluded that the “inevitable effect” of such statements is to “encourage the jury to take less than full responsibility for their awesome task of determining life or death.” 214 S.E.2d at 367 . In accordance with this principle, courts of this Circuit have concluded that prosecutorial statements that encourage the jury to disregard its life or death responsibility or invite it to believe that the sentencing decision has already been made by more expert authorities are improper. See Hall v. United States, 419 F.2d 582, 587 (5th Cir.1969) (prosecutorial statements suggesting sentencing decision has already been made by authorities impermissible).
A third approach employed to channel the jury’s discretion has been to limit its consideration to those matters brought out in evidence. This principle was unreservedly adopted by the former Fifth Circuit, which noted that “summation should not be used to put before the jury facts not actually presented in evidence.” United States v. Warren, 550 F.2d 219, 229 (5th Cir.1977), rev’d on other grounds, 578 F.2d 1058 (5th Cir.1978) (en banc), cert. denied, 446 U.S. 956 , 100 S.Ct. 2928 , 64 L.Ed.2d 815 (1980). The Supreme Court has, moreover, declared that standards applied to the use of nonrecord information in capital sentencing should be stricter than those applied in other types of criminal sentencing. Gardner v. Florida, supra. In Gardner the Court held that a death sentence could not rest on non-record information which was not presented to the defendant and which he had no opportunity to rebut. The concern expressed by the Court about the “reliability” of such information is equally applicable to statements made by the prosecutor which lack any support in the record. On the basis of this concern, past decisions of this Circuit have held such statements to be improper.
*1426 Against the framework of constitutional principle on which decisions such as Hance have been built, we can more easily perceive the departure effected by the majority opinion.
B. THE FRAMEWORK APPLIED
1. The Standard of Review
The majority correctly identifies the proper standard of review as whether the concluding argument of the prosecution, taken as a whole, rendered the trial “so fundamentally unfair as to deny [the defendant] due process.” Hance and the cases which followed it not only acknowledged the need to consider prosecutorial argument in the context of the entire trial, Hance v. Zant, supra, 696 F.2d at 950 , but identified a range of factors which would make a prosecutorial comment more or less likely to affect the fairness of a trial. Id. at n. 7. That this standard requires the importation of the “reasonable probability” test from the distinguishable context of ineffective assistance of counsel, Strickland v. Washington, — U.S. -, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), has not been conclusively demonstrated. 1 But that question need not affect the disposition of this case. As an examination of the prosecutor’s argument will make clear, there is at least a “reasonable probability” that, but for this improper argument, the result of the proceeding would have been different.
2. The Prosecutorial Argument
The majority considers twelve instances of alleged misconduct in the prosecutor’s argument and finds that only four — his expression of personal belief in the death penalty, his reference to the infrequency with which prosecutors seek the death penalty, his claim that Brooks' execution would save taxpayers money, and his comparison of jurors to soldiers in a “war on crime”— were improper. The majority, then concludes that in light of the broader context of the comments, the arguments of defense counsel and ameliorative instructions by the court, these improper comments were “not sufficient to undermine confidence in the outcome” and therefore not “fundamentally unfair” (Majority Opinion at p. 1416). The principles enunciated above, however, suggest that both the majority’s evaluation of the individual comments and its conclusion concerning their cumulative effect on the jury are in error.
a. Prosecutor’s Belief in the Death Penalty
The majority finds that this particular statement was improper because “[a]n attorney’s personal opinions are irrelevant to the sentencing jury’s task” (Majority Opinion at p. 1408). Yet this analysis substantially underestimates the impropriety of the comment. The more important reason that the statement is improper, as the majority admits parenthetically later in the opinion (Majority Opinion at 1404 n. 33), is that statements made by the prosecutor carry substantial, sometimes unwarranted weight with a jury. As the Supreme Court concluded in Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935), the jury’s confidence that “the obligations which so plainly rest upon the prosecuting attorney will be faithfully observed” leads jurors to accord his assertions, particularly those of personal knowledge, “much weight against the accused when they should properly *1427 carry none.” It is for this reason that misconduct by a prosecuting attorney has been held to be a sufficient basis for reversing a conviction. See Berger v. United States, supra.
The majority concludes, however, that this particular statement provides no such ground, as its “effect was insignificant” (Majority Opinion at p. 1413). It argues that the prosecutor’s statement merely echoes the judgment of the Georgia legislature that the punishment was valid. Yet it is unquestionably clear that the simple passage of a capital punishment statute by a state legislature does not remove from the minds of its citizens all doubts concerning the legitimacy of the punishment. If this were the case, the voir dire examination of potential capital jurors would hardly have assumed the significance it has in recent cases. See, e.g., Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). Jurors’ doubts can be addressed and conceivably assuaged, particularly in the context of a specific case, by a public servant “whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, supra, 295 U.S. at 88 , 55 S.Ct. at 633 . The majority substantially underestimates the effect a prosecutor’s endorsement of the death penalty can have on a jury.
b. Prosecutor’s Reference to the Crime Rate and the Effect of Capital Punishment on It
The majority finds that the prosecutor’s reference to an increase in the crime rate since the date of the last state execution and his statement that “we didn’t have this kind of murder ... when we had capital punishment” is not improper. The opinion explains that the increasing crime rate was “within the common knowledge of all reasonable people” and was related to the question of deterrence; it states further that the possibility of a connection between the crime rate and the imposition of capital punishment has been acknowledged by the courts, which have left the matter to be resolved, as it evidently has been in the state of Georgia, by the state legislatures. Neither argument provides an adequate justification for permitting a reference which is so patently improper.
While the increase in the Georgia crime rate may be a matter of common knowledge, the putative.connection between this reference and goal of deterrence raises a more difficult question. The nature of the connection acknowledged by the Court is, as the majority later concedes, “complex” and the scholarly debate on the matter is as yet “inconclusive” (Majority Opinion at 1409). Moreover, the passage of a capital punishment statute by the Georgia legislature does not necessarily represent that body’s considered judgment on the deterrent effect of the penalty, as such passage may also be related to its retributive function. See Gregg v. Georgia, supra, 428 U.S. at 183-84, 96 S.Ct. at 2929-30 . In light of these facts, a reference to the deterrent effect of the death penalty presents the jury with a “fact” which is neither on the record nor of established validity.
Even beyond the question of factual basis, the constitutional requirement of individuation imposes limits on the way a prosecutor may invoke the concept of deterrence. While he may remind the jury of the accepted penological justifications for the death penalty, deterrence and retribution, his comments must be directed toward the question of whether under the circumstances of the particular case the imposition of the death penalty would serve these objectives. Cf. Spaziano v. Florida, — U.S.-,-,-, 104 S.Ct. 3154, 3162-63 , 82 L.Ed.2d 340 (1984) (sentencing must take into account not only valid penological objectives but facts and circumstances of individual and his crime). A statement that “we didn’t have this kind of murder ... when we had capital punishment” has absolutely nothing to do with the circumstances of this individual case. It does not explain why this defendant’s execution would serve the goal of deterrence, or why his crime is the appropriate object of society’s ultimate retributive sanction. It is, in effect, an *1428 invitation to jurors to impose the penalty as part of a “war on crime,” an invitation which even the majority found improper and which will be considered later. For all of these reasons, the majority erred in condoning this prosecutorial reference.
c. Prosecutor’s Reference to Infrequency with which Prosecutors in His Office Seek Death Penalty
The majority finds that the prosecutor’s statement that attorneys in his office had sought the death penalty less than a dozen times in the last seven years was improper because it led the jury to believe that a decision as to the appropriateness of capital punishment had already been made by officials more experienced than they, and reduced the sense of responsibility they felt in connection with that decision. But the majority concludes that this comment did not have a substantial prejudicial effect because: 1) the prosecutor referred to the factors which were behind the decision to seek the death penalty, so the jury could evaluate those factors for themselves 2) his argument in its entirety emphasized that the jury was the body vested with the responsibility for determining whether the defendant should die 3) the arguments of defense counsel and the jury instructions given by the court re-emphasized this responsibility. My own consideration of the record compels the conclusion that none of these factors ameliorated the harmful effects of the prosecutor’s comment.
An enumeration of the factors which led the prosecutor to seek the death penalty might have been an ameliorating influence if it had been delivered in a manner which permitted the jury to draw its own conclusions regarding the appropriateness of the sentence. But this was not the case in the instant argument. The prosecutor preceded the elaboration of each factor with a pointed phrase such as “another thing we consider before we come and ask you for the death penalty,” (emphasis added), which called the jury’s attention not to the factor to be considered but to the fact that that element had already been weighed and placed on the correct side of the ledger by a knowledgeable authority. The cumulative effect of these comments was to invite the jury to endorse the decision of the prosecutor’s office, not to draw its own conclusion.
Nor did the prosecutor’s references to the jury’s responsibility vitiate the effect of this comment, for such references were fewer and less potent than the majority suggests. In the text of the prosecutor’s closing argument there are only two clear references to the responsibility of the jury. The first of these references (“when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it?”) comes immediately before the prosecutor’s proclamation that only William Brooks should feel responsibility for his execution, which clearly undermines any feeling of responsibility induced by the preceding words. The other reference (“The buck stops with you today. And you can do something about it. You can bring back the death penalty and you can tell William Brooks ... [that] you’re going to get the electric chair, that’s what you can do.”) comes in the midst of the prosecutor’s invitation to the jury to wage a “war on crime.” The import of this section of the prosecutor’s argument is not that the jury has a responsibility to decide the appropriate penalty but that the jury has a duty to impose the death penalty — a message which is not notably different than that conveyed by the prosecutor’s reference to the infrequency with which his office asks for the penalty. Neither of these references communicates a sense of responsibility sufficient to negate the ill effects of the prosecutor’s comments concerning frequency.
Nor should we condone the impropriety of this argument because of statements later made by the court and by defense counsel. The majority overestimates the curative effect that such statements can have once the damage of an incontestably improper argument has been done. It has been the rule in this Circuit that ameliorative instructions do not cure prejudice to the defendant where unsupported or in *1429 flammatory references pervade a prosecutor’s argument. See Houston v. Estelle, supra. Here the prosecutor's lengthy discussion of one of its rare decisions to seek the death penalty reminded the jury at numerous junctures that the decision facing them had already been made by more knowledgeable authorities. This constitutionally proscribed diminution of the jury’s sense of responsibility cannot be overcome by a few brief comments by the defense attorney or the court.
d. Prosecutor’s Statement that only Brooks was Responsible for his Execution
The majority accepts as proper the prosecutor’s extended argument that William Brooks, rather than any of the legal decisionmakers who have confronted the case, is responsible for his execution. The opinion states that the import of this argument is ambiguous at best; and the most reasonable interpretation of the prosecutor’s comments is that William Brooks is a grown man who is responsible for his actions and capable of suffering their consequences. Even the most cursory examination of the argument reveals that the majority has wholly mistaken its point.
The argument begins by evoking the doubts about assuming responsibility for the execution which must be going through the mind of each juror (“when we get back to the jury room ... and I vote to take somebody’s life, can I do it?”). It then responds directly to this concern by denying any responsibility, either on the part of the jury or on the part of other law enforcement officials connected with the case (“the truth of the matter is, you’re not taking his life, you’re not pulling the switch in the electric chair; the police who investigated this case ... they’re not taking his life; the Recorder’s Court judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible ... of course not.”). It also alludes to similar doubts that might have been in the mind of the prosecutor, and dispels the responsibility there as well (“How about me and my staff ... do we feel responsible? I don’t. I don’t think anyone in my office does.”). Then, in the final sentences of the argument, in order to prevent the jury from seeing the execution as an effect without a cause, the prosecutor reveals that the party responsible for the execution is William Brooks himself (“if the switch is pulled and he’s put to death, he pulled the switch the morning that he ... put the gun in the back of Carol Galloway”). The statement which the majority describes as conveying the main point of the argument (“He’s a grown man and he knew what he was doing.”) comes only at its very conclusion and has little to do with its primary focus.
Contrary to what the majority suggests, it would be hard to imagine an argument which is more carefully calculated to reduce that sense of responsibility which the Constitution requires in jurors contemplating the imposition of the death penalty. This is not an indirect reference to that responsibility, such as the Court approved in California v. Ramos, supra; nor is it even an invitation to share that responsibility with others, such as the Georgia Supreme Court struck down in Prevatte v. State, supra. It is an instruction to put away all thoughts of responsibility when considering the imposition of the penalty in this case. This type of reference cannot be labelled ambiguous or cured by a few words from the court. It is a reference which fundamentally affects the fairness of the entire trial.
e. Prosecutor’s Discussion of the Future Dangerousness of the Defendant
The majority finds that the prosecutor’s references to the danger that Brooks would pose to fellow prisoners, guards and other people’s daughters were proper because they were appropriate inferences from the record and relevant to the important question of whether Brooks would pose a continued danger to society. A brief inspection of the prosecutor’s argument on this point demonstrates that this is not the case. The “inquiry” into Brooks’ future potential *1430 for violence, which consists largely of personal opinions offered by the prosecutor (“I got whippings when I was a child, I thought my daddy used to beat me ... but that doesn’t give me an excuse to go out and commit a crime.”), is wholly separate from the prosecutor’s reference to Brooks’ danger to the prison population. More importantly, it discloses no information on the basis of which a juror could conclude that Brooks, as opposed to any other defendant convicted of murder, would pose a threat to the safety of those incarcerated with him. Though he stole a car as a “young child,” Brooks has no past history of murder or any other violent crime. Nor does the prosecutor point to any testimony by criminologists or health care professionals which suggests that Brooks is more likely than other defendants to pose a threat in the future.
Given this record, it seems very unlikely that the prosecutor’s comments were relevant to the type of inquiry that the Constitution permits: an inquiry into the dangerousness of a particular defendant. Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976). Rather than helping the jury to evaluate the defendant as an individual, these comments encouraged the jury to view the defendant as indistinguishable from the entire universe of violent criminals, any one of whom has some incalculable potential to return to violence. The inflammatory terms in which these comments were offered (“It was Mrs. Galloway’s daughter this time, Bobby Murray’s girl friend; whose girl friend or daughter will it be next time ... ?”) also suggest that they were intended to appeal to the jury’s generalized fear of violence. Far from being a permissible attempt to evaluate the defendant’s future dangerousness, these comments reflect a concerted effort to deny him the individualized determination of the appropriate sanction that is required by the Constitution.
f. Prosecutor’s Invocation of the “War on Crime”
While the majority finds improper the prosecutor’s extended metaphor comparing jurors to soldiers in a “war on crime,” it concludes that the ill effects of the argument were mitigated by defense counsel’s criticism of the metaphor and the court’s references to the individualized circumstances of the case. Once again, the majority overestimates the curative impact of subsequent instructions.
Panels of this Circuit have, for a variety of reasons, found the “war on crime” to be among the most inflammatory and impermissible arguments that have been made by prosecutors seeking the death penalty. Not only does the characterization of the defendant as an anonymous member of the “criminal element” deprive him of the individualized consideration required prior to the imposition of the death penalty, but the suggestion that a “war” has been declared, and the attendant implication that jurors have a “duty” to fight it, removes from the jury the sense of responsibility for their decision that makes for an appropriately bounded exercise of their discretion. And the evocation of a pitched battle (“they’re winning the war, is what’s so bad, and if you don’t believe they’re winning, just look about you”) encourages the jury to reach its decision in a frenzied and emotional atmosphere which invites arbitrariness in judgment.
These are not the types of effects which are likely to be dispelled by a brief word from the court or the defense attorney. Opposing counsel’s criticism of the metaphor is likely to seem hopelessly abstract to a jury that has been goaded into a froth of patriotic duty. And the court’s reference to the individualized circumstances of the crime is not likely to bear great weight in the minds of jurors who have just been reminded, at considerable length, of why it is appropriate to view the defendant as a faceless member of the “criminal element.” When delivered at the length and with the fervor exhibited in this case, the “war on crime” is too damaging an argument to be cured by subsequent remarks. The importation of this argument into the sentencing phase of a capital trial drastically affects its fundamental fairness.
*1431 In at least six instances the prosecutor’s argument created an atmosphere of unfocused emotion, relieved the jury of any sense of responsibility for its decision or deprived the petitioner of an individualized consideration of the appropriate penalty. In none of these instances were the damaging comments ameliorated by other portions of the prosecutor’s argument or by comments from the court or defense counsel. One cannot but find a “reasonable probability” that these comments affected the outcome of the proceeding. By endorsing this prosecutorial misconduct, the majority signals its retreat from a carefully constructed framework of constitutional principles, designed to reduce the role of arbitrariness in capital sentencing. 2 It should, instead, have reversed the district court’s decision on the prosecutorial argument issue.
. While the Court in Washington v. Strickland, supra, expressed a concern with the "fundamental fairness” of the proceeding similar to that articulated by the majority here, that opinion attempted primarily to define the command of the Sixth Amendment, a constitutional provision which is not at issue here. More importantly, the opinion made clear that in the context of both the Sixth Amendment and other provisions such as the Fourteenth Amendment which concern "fundamental fairness” to the defendant, prejudice is more likely to be presumed where the misconduct is perpetrated by the state or its attorney. See, e.g., United States v. Cronic, - U.S. -, 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984) (state interference with assistance of counsel); United States v. Giglio, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972) (state suppression of information concerning immunity for prosecution witness); Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) (state suppression of evidence favorable to accused).
. Even the majority opinion evinces discomfort with its suggestion that the prosecutor's arguments were harmless because of the "overwhelming guilt" of the defendant (Majority Opinion at 4480 n. 36). Washington v. Strickland, supra, suggests that where the evidence against a defendant is weak, errors by counsel may have a greater impact on the jury. But to transform that argument into a rule that where such evidence is strong, prejudice is difficult or impossible to establish, is tantamount to an assertion that those procedural protections required by the Constitution apply only to those against whom the evidence is scant.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473503. Public record. Not legal advice.