Robert Sawyer v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary

KING, Circuit Judge,

with whom REAVLEY, POLITZ, JOHNSON, and WILLIAMS, Circuit Judges, join dissenting:

Sawyer has been found guilty of capital murder. He does not contest his guilt. The only issue before the en banc court is whether he is entitled to have a properly instructed jury determine that he should be executed by the State or spend the rest of his life in jail, without the benefit of probation or parole. 1 Whatever we decide, he will not be set free.

The majority has rejected the interpretation of Caldwell v. Mississippi 2 on which the State relied in urging that we deny Sawyer’s petition for habeas relief. The majority concludes, however, that the State may execute Sawyer, regardless of the merits of his Caldwell claim, because Caldwell established a “new rule” in constitutional law and, under the Supreme Court’s recent decision in Teague v. Lane, 3 Sawyer may not receive the benefit of its application because his conviction became final before Caldwell was decided.

If, as the majority admits, “it is not clear how Caldwell ... fits into the Teague scheme” because of the “newness of the amalgam” of standards Teague set on “uncertain precedential footing,” we do not see why it is incumbent on us to condemn Sawyer to die instead of ordering the State to put the life-or-death issue to a jury that is not only not misled but is fully informed of its responsibilities. In contrast to the majority’s ambivalence, we harbor no doubt that Sawyer is entitled to the constitutional protections guaranteed by the eighth amendment: Caldwell did not establish a “new rule,” and even if it did, Teague requires its retroactive application. We, therefore, respectfully dissent.

*1296 I.

Although the majority opinion contains a lengthy exegesis on the role of the jury and the nature of Caldwell error, it does not reach the merits of Sawyer’s claim. We would find that on the facts of Sawyer’s case, his sentence is invalid under Caldwell. The prosecutor, in describing the jury’s role, remarked:

The law provides that if you find one of these circumstances then what you are doing as a juror, you yourself will not be sentencing Robert Sawyer to the electric chair. What you are saying to this Court, to the people of this Parish, to any appellate court, the Supreme Court of this State, the Supreme Court possibly of the United States, that you the people as a fact finding body from all the facts and evidence you have heard in relationship to this man’s conduct are of the opinion that there are aggravating circumstances as defined by the statute, by the State Legislature that this is the type of crime that deserves that penalty. It is merely a recommendation so try as he may, if Mr. Weidner tells you that each and every one of you I hope you can live with your conscience and try and play upon your emotions, you cannot deny, it is a difficult decision. No one likes to make those [sic] type of decision but you have to realize if but for this man’s actions, but for the type of life that he has decided to live, if of his own free choosing, I wouldn’t be here presenting evidence and making argument to you. You wouldn’t have to make the decision (emphasis supplied).

The prosecutor went on to describe the brutal nature of the crime and, briefly, its impact on the victim and her mother. Then, once again turning to the function of the jury, the prosecutor stated:

There is really not a whole lot that can be said at this point in time that hasn’t already been said and done. The decision is in your hands. You are the people that are going to take the initial step and only the initial step and all you are saying to this court, to the people of this Parish, to this man, to all the Judges that are going to review this case after this day, is that you the people do not agree and will not tolerate an individual to commit such a heinous and atrocious crime to degrade such a fellow human being without the authority and the impact, the full authority and impact of the law of Louisiana. All you are saying is that this man from his actions could be prosecuted to the fullest extent of the law. No more and no less (emphasis supplied).

Finally, after arguing that a death penalty would be justified in this case, the prosecutor noted:

It's all your doing. Don’t feel otherwise. Don’t feel like you are the one, because it is very easy for defense lawyers to try and make each and every one of you feel like you are pulling the switch. That is not so. It is not so and if you are wrong in your decision believe me, believe me there will be others who will be behind you to either agree with you or to say you are wrong so I ask that you do have the courage of your convictions (emphasis supplied).

The prosecutor’s arguments in Sawyer’s case fall squarely within Caldwell’s prohibition of misleading and inaccurate arguments regarding appellate review that seek to dimmish the jury’s sense of its responsibility in capital sentencing. The trial court did not correct these statements, and because we cannot say that these comments had no effect on the jury’s decision, we would vacate Sawyer’s sentence and grant him a new sentencing hearing. 4

II.

Whether Sawyer may receive the benefit of the constitutional protection enunciated in Caldwell depends, however, on the threshold determination that Caldwell established a “new rule.” Conceding that “[i]t is ... often difficult to determine when a case announces a new rule,” the plurality in Teague nevertheless offered the following explanation: “In general ... a case announces a new rule when it breaks new ground or imposes a new obli *1297 gation on the States or the Federal Govern-ment_ To put it differently, a case announces a new rule if the result is not dictated by precedent existing at the time the defendant’s conviction became final.” 5

The plurality recognized that constitutional rules will fall along a “spectrum”— from those that fit neatly within the rubric of settled law to those that constitute a clear break from prior precedent — but provided little additional guidance for determining at which point a rule is not “dictated” by precedent and, therefore, “new” for retroactivity purposes. 6

In Penry v. Lynaugh, 7 however, the Court began to elaborate the meaning of the term “new rule.” The Court held that although it had previously found the Texas sentencing scheme facially valid, 8 the scheme, as applied to Penry, unconstitutionally limited the jury’s ability to consider certain relevant mitigating evidence. 9 The Court held that this determination did not constitute a “new rule” given the requirement that capital sentencing procedures permit the sentencing jury to consider and give effect to all relevant mitigating evidence. 10

The Court reasoned that a rule is not “new” for purposes of retroactivity analysis when it “fulfill[s] the assurance” upon which a previous case “was based,” or merely “interpret[s] broadly” that previous case. 11 The Court thus made clear that its “dictated by precedent” language was not intended to categorize as “new” every rule that does not fit precisely within the pattern of a previously decided case. Rather, the Court recognized that the process of constitutional interpretation routinely requires courts to articulate extant law and apply established principles of law to different facts and in different contexts. Rules that are the product of this gradual process of refining and developing doctrine are not “new.” To define “new” rules more broadly would depart significantly from the traditional understanding of constitutional jurisprudence as an evolving body of principles rather than jarring series of revolutionary pronouncements. 12

This differentiation between elaborating and applying established principles, on the one hand, and announcing new rules that are dissonant with prior understandings of the law, on the other hand, derives directly from Justice Harlan’s view of retroactivity that the Court adopted in Teague and applied in Penry. Justice Harlan observed “that many, though not all, of this Court’s constitutional decisions are grounded upon fundamental principles ... whose meanings are altered slowly and subtly as generation succeeds generation.” 13 He reasoned that such rules are not “new” and should be given retroactive application in habeas proceedings because “one could never say with any assurance that this Court would have ruled differently at the time the petitioner’s conviction became final.” 14

*1298 Caldwell held that a prosecutor may not “le[a]d” a jury to “believe” that it is not “responsible] for determining the appropriateness of [a] defendant’s death.” 15 The Court based this rule upon its belief that such prosecutorial misconduct “was fundamentally incompatible with the Eighth Amendment’s heightened ‘need for reliability’ ” in capital sentencing, and that such conduct, “if left uncorrected, might so affect the fundamental fairness of the sentencing proceeding as to violate the Eighth Amendment.” 16 Arguments that seek to diminish the jury's sense of responsibility, the Court explained, undermine core eighth amendment values:

The “delegation” of sentencing responsibility that the prosecutor here encouraged ... would deprive [the defendant] of ... [the] right to a fair determination of the appropriateness of his death ..., for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance. Whatever intangibles a jury might consider in its sentencing determination, few can be gleaned from an appellate record. This inability to confront and examine the individuality of the defendant would be particularly devastating to any argument for consideration of what this Court has termed “(those) compassionate or mitigating factors stemming from the diverse frailties of humankind.” 17

Far from articulating an unanticipated principle of law or breaking with a past understanding of the law, Caldwell interpreted and followed directly the Court’s own eighth amendment jurisprudence. The Caldwell Court fulfilled the assurance enunciated in Furman v. Georgia 18 and Gregg v. Georgia 19 that capital punishment not be administered “wantonly” or “freakishly” or in an “arbitrary and capricious manner;” 20 it applied the “need for reliability in the determination that death is the appropriate punishment in a specific case,” assured in Woodson v. North Carolina, 21 Lockett v. Ohio 22 and Eddings v. Oklahoma, 23 to a situation in which that reliability was compromised; it fulfilled the promise of Woodson, Lockett, and Eddings that a defendant be sentenced to death only after an individualized determination of his moral culpability; 24 and it applied the need first articulated in McGautha v. California 25 that jurors be “confronted with the truly awesome responsibility of decreeing death for a fellow human” 26 to a case in which the prosecutor specifically instructed the jury that it had no such responsibility. With due respect to the three dissenters in Caldwell, it is difficult to imagine the Court reaching any other conclusion given these precedents.

*1299 There was, moreover, no precedent inconsistent or dissonant with Caldwell at the time it was decided. While the Court, in Donnelly v. DeChristoforo, 27 had imposed a more stringent due-process test for claims of improper argument made at the guilt/innocence phase of trial, this analysis applied neither to improper argument at sentencing proceedings nor to argument implicating “specific guarantees of the Bill of Rights.” 28 The Donnelly Court thus left open the possibility that improper arguments at sentencing not violative of the Due Process Clause may be held to contravene the eighth amendment’s requirements.

Similarly, in California v. Ramos, 29 the Court posited its approval of jury instructions containing information regarding postconviction procedures on the fact that the information was both relevant and accurate. 30 While the Court in Ramos did not address whether a prosecutor violates the Constitution by presenting irrelevant and misleading information concerning postconviction proceedings, its emphasis on the nature of the instruction forecast that such information would be found to undermine the reliability of the sentencing process by injecting into it an arbitrary factor in violation of the eighth amendment. 31

If, as the Court in Penry instructed, we should consider a case “dictated by precedent” and not “new” for retroactivity purposes when it “fulfills] the assurance[s]” of or “interprets] broadly” principles articulated in a previous case, 32 it is difficult to see how the majority may conclude that Caldwell announced a “new rule.” Caldwell fulfilled the assurance of and interpreted faithfully the settled principle in eighth amendment jurisprudence that a verdict of death must rest upon the reliable determination of a jury accurately informed of its “awesome responsibility;” the same line of eighth amendment cases that compelled the result in Penry thus compelled the result in Caldwell.

The majority contends that the foregoing analysis unduly restricts the scope of Teag-ue. Its criticism of our interpretive method is misdirected, however, for the majority’s dispute is not, in reality, with our interpretation of Teague, but with Penry’s elaboration of the “new rule” standard set forth in Teague. Indeed, the majority’s criticism of our analysis echoes precisely Justice Scalia’s dissent in Penry, 33 In admonishing us to wait for “Teague’s, authors [to] ... tell us if they meant what they said,” the majority ignores the fact that Teague’s authors have already spoken in Penry and have effectively rejected any definition of a “new rule” that would sweep broadly enough to encompass Caldwell.

If anything, Sawyer’s claim that Caldwell followed eighth amendment jurisprudence consistently is stronger than Penry’s, for no precedent like Jurek existed in the Caldwell context to lead state courts to reach a conclusion different from the Supreme Court’s holding in Caldwell. Indeed, the Court in Caldwell observed that after Furman, several state supreme courts — including Louisiana’s — had anticipated Caldwell and found that Cald well-type errors undermined the validity of a death sentence; 34 it noted that some state courts had prohibited such arguments in both capital and noncapital cases even before Furman, 35

At least five years before the Supreme Court decided Caldwell, the Louisiana Su *1300 preme Court held that arguments that diluted the jury’s sense of responsibility for imposing a capital sentence injected an arbitrary factor into the jury’s decision and invalidated the sentence. In 1980, when denying an application for rehearing in State v. Berry, 36 the Louisiana Supreme Court recognized that

[a]ny prosecutor who refers to appellate review of the death sentence treads dangerously in the area of reversible error. If the reference conveys the message that the jurors’ awesome responsibility is lessened by the fact that their decision is not the final one, ... then the defendant has not had a fair trial in the sentencing phase, and the penalty should be vacated.... The issue should be determined in each individual case by viewing such a reference to appellate review in the context in which the remark was made. 37

In 1982, in State v. Willie, 38 the State Supreme Court vacated a death sentence and remanded for a new sentencing hearing when the prosecutor referred to appellate review and told the jury that “the buck really don’t [sic] stop with you. The buck starts with you.... [WJhat I’m asking you to do is start the buck rolling.” 39 The court quoted Berry, and added:

This type of argument may not be made in a criminal case in which the punishment may be capital. Jurors should approach the task of finding facts and exercising discretion as to choice of penalty with appreciation that their duties are serious and that they are accountable for their decisions, not with the feeling that they are making mere tentative determinations which the courts can correct. An argument improperly diminishes the jury’s duty and responsibility if it implies that a reviewing court can substitute its judgment as to choice of punishment or that the decision of whether the sentence of death is appropriate is not entirely the jury’s responsibility. 40

In State v. Robinson, 41 also in 1982, the State Supreme Court vacated a death sentence and remanded for a new sentencing hearing because the prosecutor referred repeatedly to the jury’s sentence as a “recommendation” that did not have a “strong possibility” of “get[ting] through all of that [appellate] review.” 42 Citing Berry and Willie, the court anticipated the “no effect” test required by the eighth amendment, stating:

The closing argument requires that the death sentence be set aside, because this court cannot determine that misleading and improper remarks of this magnitude did not influence the jury’s recommendation. ... [W]e cannot say that the jury’s sentencing discretion was unaffected by the prosecutor’s repeated and often misleading references to the largely irrelevant consideration of appellate review of death sentences. 43

As the Louisiana Supreme Court observed, Caldwell neither imposed a new obligation on prosecutors or courts nor broke new ground in Louisiana. 44 Before the Supreme Court decided Caldwell, Louisiana had already prohibited Caldwell argument and required reversal of sentences when it found such error. Moreover, in finding that Caldwell argument injected an arbitrary factor into the sentencing process, the Louisiana courts relied on the same eighth amendment principles that *1301 compelled the Supreme Court’s decision in Caldwell. In State v. Sonnier, 45 the Louisiana Supreme Court stated that under Louisiana law, the court “is charged with the responsibility of reviewing the jury’s recommendation to determine whether the sentence was influenced by passion, prejudice or any arbitrary factor.” 46 The court described how Louisiana modelled its provision for independent appellate review of death sentences on the Georgia procedure sanctioned in Gregg v. Georgia, and cited approvingly the Georgia Supreme Court’s reversal of a death sentence when it found that “an unobjected to argument by a [prosecutor] may have influenced the jury to impose a more severe sentence than unbiased judgment would have given.” 47 In Willie, the court again adverted to Gregg’s requirement that a sentencer’s discretion be channelled to avoid arbitrary and capricious imposition of the death penalty, and held that the prosecutor’s improper argument regarding appellate review “lessened” the jurors’ appreciation of their “awesome responsibility” and “created a reasonable possibility that the death sentence was imposed under the influence of passion, prejudice or arbitrary factors.” 48 Echoing McGautha, the Louisiana Supreme Court thus anticipated almost exactly Justice O’Connor’s conclusion in Caldwell that such arguments “creat[e] an unacceptable risk that ‘the death penalty [may have been] meted out arbitrarily or capriciously’ ... or through ‘whim ... or mistake.’ ” 49

The majority concedes that numerous states, including Louisiana, forecast Caldwell by prohibiting the arguments that the Caldwell Court ultimately barred, but concludes that because states’ Caldwell precursors did not impose an independent constitutional constraint on state power, they are irrelevant to Teague’s analysis. That the state courts adopted these rules before Caldwell to conform state law to perceived eighth amendment requirements, rather than conforming to an independent federal constitutional constraint articulated by the Supreme Court, is a distinction without a difference for the purpose of determining whether Caldwell announced a “new rule.” In either case, the state courts based their interpretations on the eighth amendment, and their widespread anticipation of Caldwell strongly suggests that the Supreme Court’s subsequent decision in that case maintained a continuity with and fulfilled clearly discernible principles in eighth amendment jurisprudence.

In Dugger v. Adams, 50 the Supreme Court found these state laws sufficiently established to conclude that the legal basis for raising a Caldwell-type claim prior to Caldwell was “reasonably available to counsel,” and that Caldwell was, therefore, of such vintage as to be subject to the procedural-bar rule. 51 In Moore v. Black-bum? 52 we considered a writ application based on Caldwell barred by the abuse-of-writ doctrine for the same reason. If both the Supreme Court and this court have considered, on the basis of state laws anticipating Caldwell, a Caldwell-type claim sufficiently established to negate cause for failing to raise it years before Caldwell, how may we now ignore these state laws and conclude that Caldwell is novel?

Contrary to the majority’s assertion, the Teague plurality’s citation of Ford v. Wainwright 53 as an example of a “new rule” does not establish that state rules are irrelevant to determining whether a rule is “new.” 54 In Ford, the Court looked to *1302 state law for “objective evidence of contemporary values” 55 and noted that 26 states had enacted statutes prohibiting the execution of insane persons while other states adhered to the common law principle prohibiting such executions. 56 Although the Teague plurality did not explain why Ford should be considered a “new rule,” the Court’s discussion in Penry suggests that any substantive eighth amendment rule that “prohibits imposing the death penalty on a certain class of defendants because of their status or because of the nature of their offense” will be “new” because of its sweeping and categorical nature, 57 even though such a rule may be premised on a finding that contemporary values, manifested through legislative enactments, already condemn such punishment. 58 The fact that a rule is inherently ground-breaking insofar as it announces a new, categorical rule of substantive eighth amendment law thus appears to outweigh the fact that the rule derives from these indicia of community consensus.

The Teague plurality's citation of Ford cannot, therefore, be construed as a broad holding regarding the proper role of state law in determining whether a rule is “new.” At most, Teague’s citation of Ford indicates that the existence of state common law and statutes embodying principles later incorporated into eighth amendment law does not preclude a finding that the rule is nevertheless “new.” It does not command us to ignore state law and, in particular, it does not indicate that state court interpretations of the federal Constitution are irrelevant to determining whether a rule is “new” under Teague.

Indeed, the majority’s refusal to address the import of a state’s interpretation of the federal Constitution misconstrues the basis of Teague’s retroactivity principles. The plurality opinion in Teague anchored its retroactivity analysis, the majority recognizes, in the principles of federalism and finality; it sought to mitigate the uncertain effect of new and unanticipated obligations on final state court judgments. 59 The majority ignores, however, a basic precept of federalism that animated the Teague plurality: state courts, no less than federal courts, may meaningfully interpret the federal Constitution. “It is intolerable,” Justice Harlan asserted, “that [the Supreme Court] take to [itself] the sole ability to speak to ... issues of federal constitutional law”; the decision of an “inferior” court, “cognizant of the Federal Constitution and duty bound to apply it,” should not be deemed “forever erroneous because years later th[e Supreme] Court took a different view of the relevant constitutional command.” 60 The majority’s failure to acknowledge and give effect to Louisiana’s prohibition of Caldwell-type error prior to Caldwell minimizes the role of state courts in our federal constitutional framework and devalues the importance of the dialogue by which state and federal courts articulate evolving federal constitutional norms. 61

Sawyer did not raise his Caldwell claim on direct review, and, on collateral review, the Louisiana courts summarily rejected the argument on its merits. Although our conclusion on the merits of Sawyer’s claim differs from that reached by the Louisiana courts on collateral review, we rely on the same constitutional principles that the state *1303 courts considered, not on some “new” constitutional rule unanticipated by the Louisiana Supreme Court. An advocate of even the narrowest view of the appropriate role of collateral review could not maintain that principles of federalism and finality preclude habeas relief whenever a federal court, applying the same constitutional principles as the state court, reaches a different conclusion on the merits of a petitioner’s claim. This minimal “backstop” function of collateral review to which the majority refers remained untouched by Teague.

We are aware that the Court’s decision in Penry implies that the “new rule” analysis is properly focused on one state when the proposed rule is directed at the procedure of a particular state, but may be broader when the proposed rule would apply to all states. 62 We, therefore, do not suggest that Louisiana’s anticipation of Caldwell is dispositive 63 of whether Caldwell was a new rule, for Caldwell error is not restricted to Louisiana’s sentencing procedure. At a minimum, however, the adoption of Cald well-type rules by numerous states, including Louisiana, prior to Caldwell reveals the degree to which the Court’s eighth amendment jurisprudence compelled the result reached in Caldwell.

III.

Even if Caldwell announced a new rule, it nevertheless should be applied to cases on collateral review because it falls within the exception provided by Teague for new rules requiring the observance of “those procedures that ... ‘are implicit in the concept of ordered liberty,’ ” that “implicate the fundamental fairness of the trial,” and “without which the likelihood of an accurate conviction is seriously diminished.” 64

The plurality in Teague diverged from Justice Harlan’s approach to retroactivity by adding an “accuracy” qualification to the “fundamental fairness” exception, implying that only those rules touching on factual innocence would fall within it. 65 While Justice Harlan had subscribed to this view in his dissent in Desist, 66 he subsequently rejected it in Mackey, acknowledging that “it is not a principal purpose of the writ to inquire whether a criminal convict did in fact commit the deed alleged.” 67 The majority admits that the Teague plurality’s modification of Justice Harlan’s second exception does not command a majority of the Court, and although a solid majority of the Court employed Teague’s retroactivity analysis in Penry, Penry did not address the Teague plurality’s gloss of the fundamental fairness exception. 68

The Court’s unanimous recognition in Penry that Teague’s first exception encompasses a distinct eighth amendment component 69 suggests that the Court would find a parallel component in Teag-ue’s second exception, and exempt from Teague’s nonretroactivity rule those capital sentencing procedures that ensure the “accuracy” of the senteneer’s determination. The plurality in Teague acknowledged that “a criminal judgment necessarily includes the sentence imposed.” 70 Both the plurality and dissent in Teague would, therefore, agree that Teague’s exemption of new rules that ensure the accuracy of the determination of the defendant’s guilt or innocence includes new rules that ensure *1304 the accuracy of the sentencer’s determination that a particular defendant deserves the death penalty. 71

The. rule Caldwell announced, based on the “heightened ‘need for reliability’ ” in capital sentencing, 72 satisfies Teague’s second exception: Caldwell error undermines the eighth amendment’s requirement that responsible jurors produce individualized, reliable verdicts, and thus seriously diminishes the likelihood of an accurate sentence. As Justice O’Connor emphasized in her concurrence in Caldwell: “[T]he prosecutor’s misleading emphasis on appellate review misinformed the jury, ... creating an unacceptable risk that ‘the death penalty [may have been] meted out arbitrarily and capriciously’ ... or through ‘whim or mistake.’ ” 73 For the majority to ignore the effect of Caldwell error on the reliability and accuracy of the sentence seriously misapprehends the nature of a Caldwell violation and the reasons behind the Court’s decision to prohibit it.

To justify its conclusion that Caldwell does not satisfy Teague’s, second exception, the majority relies primarily on Dug-ger v. Adams, 74 * in which the Court held that refusing to consider a petitioner’s pro-eedurally-barred Caldwell claim would not result in a “fundamental miscarriage of justice.” 75 Acknowledging that Adams scrutinized “the facts of a particular case, while the Teague [-jordered liberty standard looks to the character of the general rule asserted,” the majority nonetheless dismisses this distinction as more semantic than substantive.

Whether or not the principles underlying the procedural default and retroactivity doctrines are similar, there is a substantial difference between denying a particular petitioner the benefit of a rule based on the unique facts of his case, and holding that no petitioner, whatever his situation, may benefit from retroactive application of the rule to his case. The Court recognized this distinction in Adams, stating that “[demonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is ‘actually innocent’ of the sentence he or she received.” 76 Under Teague, we must address the nature of Caldwell error, not the specific facts of Sawyer’s case.

The majority conflates the individual and the categorical in order to obscure the ultimate import of its holding — that the eighth amendment values Caldwell articulated constitute an unwarranted innovation in eighth amendment jurisprudence and are insignificant in the pantheon of values present in criminal procedure. Caldwell is worthy of higher esteem, for the Supreme Court found Caldwell error so destructive of the fundamental right of a defendant assured by the eighth amendment to a reliable and accurate sentence that it presumed the error to be prejudicial unless the state demonstrated otherwise. 77 Not all errors in the capital sentencing context are so critical. For example, a death sentence based on an aggravating factor invalid under state law, but supported by evidence properly before the senteneer, does not sufficiently implicate the accuracy of the sentencing process to warrant a presumption of prejudice. 78 Prejudice is assumed, how *1305 ever, when the sentencer has not been allowed to consider or give effect to relevant mitigating evidence, 79 when an aggravating factor is premised on incorrect or invalid evidence, 80 or when the jury’s sense of responsibility has been undermined. 81

IV.

The majority acknowledges that the death penalty “is different from all other [punishments] in many respects.” Yet, by denying that Caldwell interpreted and applied consistently the Court’s eighth amendment jurisprudence to new facts, and by refusing to accord the heightened need for reliability in capital sentencing a role in Teague’s fundamental fairness exception, the majority eviscerates the procedural protections on which the constitutionality of this ultimate and irreversible penalty is premised. The majority has, in effect, given finality concerns greatest force in the area where the eighth amendment requires that we be most wary. We cannot agree that a state’s interest in the finality of a judgment of death outweighs a defendant’s right that a sentencing jury, accurately informed of its role and responsibility, determine his moral culpability. Society takes little delight in the grim, but sometimes necessary, execution of a criminal defendant; its investment is in the informed, deliberative process by which the state’s taking of a life is made legitimate.

It is indeed ironic that the majority invokes Teague, undoubtedly a new rule, 82 to prevent us from applying Caldwell, which is at most an extension of settled doctrine. If any case should be considered as having established a new rule not retroactively applicable to habeas petitioners whose convictions have become final, it is Teague itself. Had the majority decided Sawyer’s case on the basis of the Supreme Court decisions in existence when Sawyer’s case was argued and submitted to this court, the majority opinion would have granted him a new sentencing hearing. The majority instead reaches out to an opinion rendered by the Supreme Court 16 months after submission of Sawyer’s case and 8V2 years after Sawyer’s trial to find a reason to deny him constitutional protection. That to us is a finality of sorts, a final and irretrievable absurdity.

. See La.Rev.Stat.Ann. 14:30(C) (1980).

. 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985).

.- U.S. -, 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989).

. See Caldwell, 472 U.S. at 341 , 105 S.Ct. at 2646 .

. Teague, — U.S. at -, 109 S.Ct. at 1070 (O’Connor, J., plurality opinion) (emphasis in original) (citations omitted).

. See ibid.

. — U.S. -, 109 S.Ct. 2934 , — L.Ed.2d -(1989).

. See Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976).

. Penry, — U.S. at -, 109 S.Ct. at 2951.

. Id. at -, 109 S.Ct. at 2943-47; see Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982).

. Penry, - U.S. at -, 109 S.Ct. at 2945.

. See Yates v. Aiken, 484 U.S. 211 , -, 108 S.Ct. 534, 538 , 98 L.Ed.2d 546 (1988); Truesdale v. Aiken, 480 U.S. 527 , 107 S.Ct. 1394 , 94 L.Ed.2d 539 (1987); Griffith v. Kentucky, 479 U.S. 314, 323 , 107 S.Ct. 708, 714 , 93 L.Ed.2d 649 (1987); Allen v. Hardy, 478 U.S. 255, 258 , 106 S.Ct. 2878, 2880 , 92 L.Ed.2d 199 (1986); Shea v. Louisiana, 470 U.S. 51, 57 , 105 S.Ct. 1065, 1068 , 84 L.Ed.2d 38 (1985); United States v. Johnson, 457 U.S. 537, 549-50 , 102 S.Ct. 2579, 2586-87 , 73 L.Ed.2d 202 (1982); Solem v. Stumes, 465 U.S. 638, 662 , 104 S.Ct. 1338, 1352 , 79 L.Ed.2d 579 (1984) (Stevens, J., dissenting); see abo Schwartz, Retroactivity, Reliability, and Due Process; A Reply to Professor Mishkin, 33 U.Chi.L.R. 719, 749-54 (1966).

. Desist v. United States, 394 U.S. 244, 263 , 89 S.Ct. 1030, 1041 , 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting).

. Id. at 264 , 89 S.Ct. at 1041 .

. Caldwell, 472 U.S. at 329 , 105 S.Ct. at 2639.

. Id. at 340, 105 S.Ct. at 2645 (footnote omitted) (quoting Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976) (Stewart, J., plurality opinion)); see Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868, 1871 , 40 L.Ed.2d 431 (1974).

. Caldwell, 472 U.S. at 330 , 105 S.Ct. at 2640 (quoting Woodson, 428 U.S. at 304 , 96 S.Ct. at 2991 (Stewart, J., plurality opinion)).

. 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972).

. 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976).

. Gregg, 428 U.S. at 188 , 96 S.Ct. at 2932 (Stewart, J., plurality opinion) (citing Furman, 408 U.S. at 310 , 92 S.Ct. at 2763 (Stewart, J., concurring)).

. 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1978) (Stewart, J., plurality opinion).

. 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964-65 , 57 L.Ed.2d 973 (1978) (Burger, C.J., plurality opinion).

. 455 U.S. 104, 113-14 , 102 S.Ct. 869, 876-77 , 71 L.Ed.2d 1 (1982).

. See Woodson, 428 U.S. at 305 , 96 S.Ct. at 2991 (Stewart, J., plurality opinion); Lockett, 438 U.S. at 601-05 , 98 S.Ct. at 2963-65 (Burger, C.J., plurality opinion); Eddings, 455 U.S. at 112-15 , 102 S.Ct. at 875-77 ; see also Stanford v. Kentucky, — U.S. -, 109 S.Ct. 2969 , 106 L.Ed.2d 306 (1989) (O’Connor, J., concurring); South Carolina v. Gathers, - U.S. -, 109 S.Ct. 2207 , 104 L.Ed.2d 876 (1989).

. 402 U.S. 183 , 91 S.Ct. 1454 , 28 L.Ed.2d 711 (1971).

.Id. at 208, 91 S.Ct. at 1467 .

. 416 U.S. 637 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974).

. Id. at 643 , 94 S.Ct. at 1871 .

. 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983).

. Id. at 1004, 1009, 1012 , 103 S.Ct. at 3455, 3457, 3459 .

. See Caldwell, 472 U.S. at 342-43 , 105 S.Ct. at 2646-47 (O'Connor, J., concurring in part and concurring in the judgment) (citing Ramos, 463 U.S. at 999, 1010 , 103 S.Ct. at 3451, 3458 ).

. Penry, — U.S. at -, 109 S.Ct. at 2944.

. Id. at -, 109 S.Ct. at 2963.

. Caldwell, 472 U.S. at 333 -34 & n. 4, 105 S.Ct. at 2642 & n. 4 (citing cases).

. Id. at 334 & n. 5, 105 S.Ct. at 2642 & n. 5 (citing cases).

. 391 So.2d 406 (La.1980) (denial of application for rehearing), cert. denied, 451 U.S. 1010 , 101 S.Ct. 2347 , 68 L.Ed.2d 863 (1981).

. Berry, 391 So.2d at 418 (emphasis in original) (portions of text omitted); see id. at 419-21 (Calogero, J., dissenting from denial of rehearing); State ex rel. Williams v. Blackburn, 396 So.2d 1249, 1250 (La.1981) (Dennis, J., dissenting from denial of stay); id. at 1250 (Calogero, J., concurring in denial of the stay); State v. Monroe, 397 So.2d 1258, 1270 (La.1981), cert. denied, 463 U.S. 1229 , 103 S.Ct. 3571 , 77 L.Ed.2d 1411 (1983).

. 410 So.2d 1019 (La.1982), cert. denied, 465 U.S. 1051 , 104 S.Ct. 1327 , 79 L.Ed.2d 723 (1984).

. Id. at 1034.

. Id. at 1035; see State v. Clark, 492 So.2d 862, 870-71 (La.1986).

. 421 So.2d 229 (La.1982).

. Id. at 231-33 .

. Id. at 233-34 (portions of text omitted).

. See State ex rel. Busby v. Butler, 538 So.2d 164, 173 (La.1988).

. 379 So.2d 1336 (La.1979).

. Id. at 1371 .

. Id. at 1370-71 & n. 4.

. Willie, 410 So.2d at 1032, 1034 .

. Caldwell, 472 U.S. at 343 , 105 S.Ct. at 2647 (O’Connor, J., concurring in part and concurring in the judgment) (quoting Ramos, 463 U.S. at 999 , 103 S.Ct. at 3451 , and Eddings, 455 U.S. at 118 , 102 S.Ct. at 879).

. — U.S. -, 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989).

. Id. at -, 109 S.Ct. at 1215-17.

. 774 F.2d 97 (5th Cir.1985), cert. denied, 476 U.S. 1176 , 106 S.Ct. 2904 , 90 L.Ed.2d 990 (1986).

. 477 U.S. 399 , 106 S.Ct. 2595 , 91 L.Ed.2d 335 (1986).

. See Teague, - U.S. at -, 109 S.Ct. at 1070.

. Ford, 477 U.S. at 406 , 106 S.Ct. at 2600.

. Id. at 408-09 & n. 2, 106 S.Ct. at 2601 & n. 2.

. Penry, — U.S. at -, 109 S.Ct. at 2951 (citations omitted). Such a rule would, however, necessarily fall within the first exception to Teague and would be applied retroactively. See ibid.

. Ibid.; see Stanford v. Kentucky, - U.S. -, -, 109 S.Ct. 2969, 2975 , 106 L.Ed.2d 306 , - (1989); Thompson v. Oklahoma, 487 U.S. -, 108 S.Ct. 2687, 2691 , 101 L.Ed.2d 702 (1988); Enmund v. Florida, 458 U.S. 782, 788-96 , 102 S.Ct. 3368, 3371-76 , 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 593-97 , 97 S.Ct. 2861, 2866-68 , 53 L.Ed.2d 982 (1977).

. Teague, - U.S. at -, 109 S.Ct. at 1070-75 (O’Connor J., plurality opinion).

. Mackey v. United States, 401 U.S. 667, 680, 689-90 , 91 S.Ct. 1160, 1174, 1178 , 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in the judgment).

. See Cover and Aleinikoff, Dialectical Federalism; Habeas Corpus and the Court, 86 Yale L.J. 1035 (1977).

. See Penry, — U.S. at -, -, 109 S.Ct. at 2943-47, 2951.

. See Teague, 109 S.Ct. at 1070 (citing Ford, 477 U.S. at 410 , 106 S.Ct. at 2602 ).

. Teague, — U.S. at -, 109 S.Ct. at 1075-77 (O’Connor, J., plurality opinion) (quoting Mackey, 401 U.S. at 693 , 91 S.Ct. at 1180 (Harlan, J., concurring in the judgment) (quoting Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152 , 82 L.Ed. 288 (1937))).

. See Teague, - U.S. at -, 109 S.Ct. at 1080 (Stevens, J., concurring in part and concurring in the judgment).

. See Desist, 394 U.S. at 262 , 89 S.Ct. at 1041 (Harlan, J., dissenting).

. Mackey, 401 U.S. at 694 , 91 S.Ct. at 1181 (Harlan, J., concurring in the judgment).

. See Penry, — U.S. at -, -, 109 S.Ct. at 2943, 2953.

. Ibid.

. Teague, — U.S. at - n. 3, 109 S.Ct. at 1077 n. 3 (O'Connor, J., plurality opinion).

. See ibid; id. at - n. 5, 109 S.Ct. at 1089 n. 5 (Brennan, J., dissenting); cf. Adams, - U.S. at -, 109 S.Ct. at 1217-18 n. 6; id. at - n. 4, 109 S.Ct. at 1219 n. 4 (Blackmun, J., dissenting); Ramos, 463 U.S. at 1007-09 , 103 S.Ct. at 3457 .

. Caldwell, 472 U.S. at 340 , 105 S.Ct. at 2645 (quoting Woodson, 428 U.S. at 305 , 96 S.Ct. at 2991 (Stewart, J., plurality opinion)).

. Caldwell, 472 U.S. at 343 , 105 S.Ct. at 2647 (O'Connor, J., concurring in part and concurring in the judgment) (quoting Ramos, 463 U.S. at 999 , 103 S.Ct. at 3451 and Eddings, 455 U.S. at 118 , 102 S.Ct. at 879).

. - U.S. -, 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989).

. Id. at - n. 6, 109 S.Ct. at 1217-18 n. 6.

. Ibid.

. Caldwell, 472 U.S. at 341 , 105 S.Ct. at 2646.

. See Barclay v. Florida, 463 U.S. 939, 956-57 , 103 S.Ct. 3418, 3428 , 77 L.Ed.2d 1134 (1983); Zant v. Stephens, 462 U.S. 862, 887-88 , 103 S.Ct. 2733, 2748 , 77 L.Ed.2d 235 (1983).

. See Hitchcock v. Dugger, 481 U.S. 393, 397 , 107 S.Ct. 1821, 1824 , 95 L.Ed.2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 8 , 106 S.Ct. 1669, 1673 , 90 L.Ed.2d 1 (1986).

. See Johnson v. Mississippi, 486 U.S. 578 , -, 108 S.Ct. 1981, 1987 , 100 L.Ed.2d 575 (1988).

. See Caldwell, 472 U.S. at 341 , 105 S.Ct. at 2646 .

.See Teague, — U.S. at - nn. 3 & 4, 109 S.Ct. at 1086 nn. 3 & 4 (Brennan, J., dissenting); compare id. at -, 109 S.Ct. at 1060-78 (O’Connor, J., plurality opinion) with Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965); Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967); Desist, 394 U.S. 244 , 89 S.Ct. 1030 ; Mackey, 401 U.S. 667 , 91 S.Ct. 1160 ; Solem, 465 U.S. 638 , 104 S.Ct. 1338 .