Neill v. Gibson

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAY WESLEY NEILL,

Plaintiff - Appellant,

v. No. 00-6024

GARY GIBSON, Warden, Oklahoma
State Penitentiary,

Respondent - Appellee.

ORDER
Filed December 7, 2001

Before TACHA, Chief Judge, BALDOCK, and LUCERO, Circuit Judges.

Appellant’s petition for rehearing by the panel is granted. The opinion on

rehearing is filed with this order.

The suggestion for rehearing en banc was transmitted to all of the judges of the

court who are in regular active service as required by Fed. R. App. P. 35, with the

exception of Judge Robert H. Henry, who was recused in this matter. Judge Carlos F.

Lucero voted to grant, and all other judges of the court voted to deny rehearing en banc.
Therefore, the appellant’s petition for rehearing en banc is denied.

Entered for the Court

PATRICK FISHER, Clerk of Court

by:
Belinda A. Begley
Deputy Clerk

2
 PUBLISH FILED

UNITED STATES COURT OF APPEALS December 7, 2001

TENTH CIRCUIT Patrick Fisher, Clerk

JAY WESLEY NEILL,

Petitioner-Appellant,

v. No. 00-6024

GARY GIBSON, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-97-1318-C)

James L. Hankins of Hankins Law Office, Enid, Oklahoma, for Petitioner-Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew
Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before TACHA, Chief Judge, BALDOCK, and LUCERO, Circuit Judges.

TACHA, Chief Judge.
 Petitioner-appellant Jay Wesley Neill appeals the denial of habeas relief,

see 28 U.S.C. § 2254, from four death sentences. This appeal presents, among other

issues, the question of whether Oklahoma can constitutionally apply its statute permitting

introduction of victim impact evidence during a capital sentencing proceeding at a trial

for crimes occurring prior to that statute’s enactment. We conclude Oklahoma can do so

without violating the Ex Post Facto or Due Process Clauses. We, therefore, affirm the

denial of relief on this, and the remainder of Neill’s habeas claims.

I. FACTS

A jury sentenced Neill to death after convicting him of four counts of first degree

malice murder stemming from Neill’s armed robbery of a Geronimo, Oklahoma bank in

December 1984. Neill did not contest his guilt during the trial’s first stage. The State’s

evidence established that Neill, then age nineteen, and his co-defendant, Grady Johnson,

age twenty-one, were roommates involved in a homosexual relationship. In 1984, they

were having serious financial difficulties. During the week before the bank robbery, the

pair purchased two knives, obtained a gun permit, bought a .32 caliber handgun and

ammunition, and made plane reservations to San Francisco for Friday afternoon,

December 14. On that Friday, shortly after 1:00 P.M., Neill robbed the bank. During the

robbery, Neill stabbed three bank employees to death. All three women died from

multiple stab wounds to their head, neck, chest and abdomen. One woman was seven

months pregnant. Neill also attempted to decapitate each woman with a knife.

2
 Five customers entered the bank during the robbery. Neill forced all five to lie

face down in the back room where the employees had been stabbed. He then shot each

customer in the head, killing one and wounding the other three. Neill denied attempting

to shoot the fifth, an eighteen-month-old child. The child’s father testified, however, that

he saw someone point a gun at his child’s head and fire several times. The weapon, by

this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the

approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels,

limousines and cocaine. FBI agents arrested the pair there three days after the robbery.

Prior to this trial, Neill gave a videotaped interview to a religious television

program, “The 700 Club,” and wrote several letters to an author writing a book about the

murders. Neill also wrote letters and made telephone calls apologizing to several victims.

In these communications,1 Neill admitted committing the crimes. Based on this evidence,

the jury convicted Neill of four counts of first degree malice murder, three counts of

shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three

aggravating factors: Neill had created a great risk of death to more than one person; he

1
The State had initially tried Neill and Johnson jointly. The Oklahoma Court of
Criminal Appeals, however, reversed their resulting convictions, holding, among other
errors, that the trial court should have severed their trials. See Neill v. State, 827 P.2d 884
(Okla. Crim. App. 1992). Neill gave this videotaped interview and wrote these letters in
between his first and second trials.

3
had committed the murders to avoid arrest and prosecution; and the murders were

especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as

twenty years’ imprisonment for each non-capital conviction.

The Oklahoma Court of Criminal Appeals affirmed Neill’s convictions and death

sentences, and denied post-conviction relief. See Neill v. State, 896 P.2d 537 (Okla.

Crim. App. 1994), cert. denied, 516 U.S. 1080 (1996); Neill v. State, 943 P.2d 145 (Okla.

Crim. App. 1997).

II. STANDARDS OF REVIEW

Because Neill filed his federal habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that Act governs this

appeal. See Williams v. Taylor, 529 U.S. 362, 402 (2000). Neill, therefore, will not be

entitled to habeas relief unless he can establish that the state court resolved his claims

“contrary to,” or based on “an unreasonable application of,” clearly established Supreme

Court precedent, 28 U.S.C. § 2254(d)(1), or “on an unreasonable determination of the

facts in light of the evidence,” id. § 2254(d)(2). We presume state court factual findings

are correct, absent clear and convincing evidence to the contrary. See id. § 2254(e)(1).

Where the state court did not address the merits of a habeas claim, however, this

court reviews the district court’s decision de novo, reviewing any factual findings only for

clear error. See, e.g., Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000).

4
III. DISCUSSION

A. Application of Oklahoma’s newly enacted victim impact legislation at

Neill’s retrial. In 1991, after Neill’s first trial, the United States Supreme Court,

reversing its earlier precedent, held that states could constitutionally admit victim impact

evidence during capital sentencing proceedings. See Payne v. Tennessee, 501 U.S. 808,

824-27 (1991). Oklahoma, in 1992, enacted legislation permitting introduction of such

evidence. See Okla. Stat. tit. 21, § 701.10(C); see also id. tit. 22, §§ 984, 984.1, 991a(D).

Neill argues that applying this statute retrospectively to permit the State to introduce

victim impact evidence at his 1992 retrial for these 1984 crimes violated the Ex Post

Facto and Due Process Clauses. Specifically, Neill asserts that applying this statute at his

retrial implicated the fourth category of ex post facto legislation recognized in Calder v.

Bull, 3 U.S. (3 Dall.) 386, 390 (1798)--“[e]very law that alters the legal rules of evidence,

and receives less, or different testimony, than the law required at the time of the

commission of the offence, in order to convict the offender.” See also Carmell v. Texas,

529 U.S. 513, 521-22, 525, 534 (2000) (reaffirming validity of Calder’s fourth ex post

facto category). Although the state appellate court rejected this claim, it did not

specifically address Calder’s fourth category. See Neill, 896 P.2d at 553-54.

Neill relies on Carmell. That case, however, is distinguishable. In Carmell, the

Supreme Court addressed the retrospective application of a Texas law providing that

certain sex offenses could be established solely on the victim’s testimony, when

5
previously they would have required additional corroborating evidence. See 529 U.S. at

516. The Court, applying Calder’s fourth category, see Carmell, 529 U.S. at 522, held

retrospective application of this Texas statute violated the ex post facto prohibition

because this legislation “changed the quantum of evidence necessary to sustain a

conviction.” Id. at 530; see also id. at 531, 532-33, 546. This change in the quantum of

evidence “subverts the presumption of innocence.” Id. at 532. In addition, the Court

noted that the Texas statute did not simply regulate the mode by which the parties could

place facts before the jury, but rather “govern[ed] the sufficiency of those facts for

meeting the burden of proof.” Id. at 545; see also id. at 546-47.

In contrast, Oklahoma’s victim impact statute does not change the quantum of

evidence necessary for the State to obtain a death sentence, nor does it otherwise subvert

the presumption of innocence. See id. at 530-34; see also Thompson v. Missouri, 171

U.S. 380, 387 (1898). Further, the Oklahoma statute leaves for the jury to determine the

victim impact evidence’s sufficiency or effect. See Carmell, 529 U.S. at 545-47; see also

Thompson, 171 U.S. at 387. Moreover, “[v]ictim impact evidence is simply another form

or method of informing the sentencing authority about the specific harm caused by the

crime in question, evidence of a general type long considered by sentencing authorities.”

Payne, 501 U.S. at 825.

This case is more analogous to Thompson, upon which the district court relied to

deny Neill habeas relief. In Thompson, the Court held that retrospectively applying a

6
state statute permitting handwriting experts’ testimony did not violate the Ex Post Facto

Clause. See 171 U.S. at 380-82, 386-88.

“Statutes which simply enlarge the class of persons who may be competent
to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do
not . . . alter the degree, or lessen the amount or measure, of the proof which
was made necessary to conviction when the crime was committed. . . . The
crime for which the present defendant was indicted, the punishment
prescribed therefor, and the quantity or the degree of proof necessary to
establish his guilt, all remained unaffected by the subsequent
statute. . . . [A]lterations which do not increase the punishment, nor change
the ingredients of the offence, or the ultimate facts necessary to establish
guilt, but--leaving untouched the nature of the crime and the amount or
degree of proof essential to conviction--only remove existing restrictions
upon the competency of certain classes of persons as witnesses, relate to
modes of procedure only, in which no one can be said to have a vested
right, and which the State, upon grounds of public policy, may regulate at
pleasure.”

Id. at 385-86 (quoting Hopt v. Utah, 110 U.S. 574, 589-90 (1884)). Further, the

Thompson Court indicated it could not

perceive any ground upon which to hold a statute to be ex post facto which
does nothing more than admit evidence of a particular kind in a criminal
case upon an issue of fact which was not admissible under the rules of
evidence as enforced by judicial decisions at the time the offence was
committed . . . . The statute [at issue] did nothing more than remove an
obstacle . . . that withdrew from the consideration of the jury testimony
which, in the opinion of the legislature, tended to elucidate the ultimate,
essential fact to be established . . . .

Id. at 387.

Neill argues, however, that Thompson is distinguishable from his case because,

while expert handwriting testimony could benefit either the State or the defendant,

7
Oklahoma’s victim impact evidence benefits only the State and would always be

detrimental to the capital defendant. See also Carmell, 529 U.S. at 533 & n.23, 546. In

Carmell, the Court did discuss this factor, noting first that “[o]rdinary rules of evidence,

for example, do not violate the [Ex Post Facto] Clause.” Id. at 533 n.23. The Court

further indicated that these “ordinary rules of evidence . . . are ordinarily evenhanded, in

the sense that they may benefit either the State or the defendant in any given case.” Id.;

see id. at 546 (noting changes lowering quantum of proof, and thus implicating Ex Post

Facto Clause, will always inure to State’s benefit, but witness competency laws “do not

necessarily run in the State’s favor”); see also Thompson, 171 U.S. at 387-88. But that

factor alone is not dispositive. See McCulloch v. State, 39 S.W.3d 678, 684 (Tex. Ct.

App. 2001). Rather, the Carmell Court noted that, “[m]ore crucially, such [ordinary rules

of evidence], by simply permitting evidence to be admitted at trial, do not at all subvert

the presumption of innocence, because they do not concern whether the admissible

evidence is sufficient to overcome the presumption.” 529 U.S. at 533 n.23. Despite the

fact that Oklahoma’s statute permitting victim impact evidence benefits only the State,2

therefore, it does not violate the ex post facto prohibition here because it neither changes

the quantum of proof nor otherwise subverts the presumption of innocence. See Carmell,

2
Admitting victim impact evidence, however, does not weight the capital
sentencing proceeding in the State’s favor. Rather, Payne held the State could present
victim impact evidence, in part, to counter a capital defendant’s right to present any
mitigating evidence. See 501 U.S. at 822-23, 825-26.

8
529 U.S. at 530-33 & 533 n.23. The “inhibition upon the passage of ex post facto laws

does not give a criminal a right to be tried, in all respects, by the law in force when the

crime charged was committed.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 510 n.6

(1995) (further quotation omitted). Neill, therefore, is not entitled to habeas relief.

B. Second-stage jury instruction. Oklahoma law provides that, if a capital

sentencing jury cannot reach a unanimous verdict within a reasonable time, the trial court

shall impose a life sentence, either with or without the possibility of parole. See Okla.

Stat, tit. 21, § 701.11. The Eighth Amendment, however, does not require the trial court

to instruct jurors on the consequences of their failure to agree. See Jones v. United States,

527 U.S. 373, 381 (1999). Neill argues the Constitution, nonetheless, did require such an

instruction in this case because here the prosecutor affirmatively misinformed jurors that

if they failed to reach a unanimous sentencing decision, there would be another retrial.

See Trial tr. vol. V at 1315. Jones does indicate that, “[i]n theory, the . . . failure to

instruct the jury as to the consequences of deadlock could give rise to an Eighth

Amendment problem,” noting “a jury cannot be ‘affirmatively misled regarding its role in

the sentencing process.’” 527 U.S. 381-82 (quoting Romano v. Oklahoma, 512 U.S. 1, 9

(1994)).

Because the Oklahoma Court of Criminal Appeals denied relief solely on state law

grounds, see Neill, 896 P.2d at 557, this court reviews this constitutional claim de novo.

See Thomas, 218 F.3d at 1220.

9
 Although the prosecutor did, at one point, misstate Oklahoma law, his argument

as a whole did not mislead the jury. Following his misstatement that the jury’s failure to

reach a unanimous sentencing decision would result in another retrial, the prosecutor

argued that if defense counsel could get one juror to vote against the death penalty, that

punishment could not be imposed. See Trial tr. vol. V at 1321. Defense counsel also

argued to the jury that, if one of them believed death was not the appropriate punishment,

that juror should hold out and the judge would eventually declare a deadlock and impose

a life sentence without the possibility of parole. See id. at 1308, 1313. Further, the

prosecutor ended his argument by asserting that there was no mistrial at sentencing and

that if one juror “cannot agree [to a death sentence], then it’s life without parole.” Id. at

1327. In light of the entire record, then, the prosecutor’s single misstatement did not

mislead the jury concerning its sentencing role. An instruction on the consequences

resulting from the jury’s failure to reach a unanimous sentencing decision, therefore, was

unnecessary. See Jones, 527 U.S. at 381-82.

For these same reasons, Neill’s claims that his trial attorney was ineffective for

failing to object to the prosecutor’s misstatement, and to object to the prosecutor’s

argument generally concerning the possibility of another retrial, lack merit.3 See,

e.g.,Werts v. Vaughn, 228 F.3d 178, 205 (3d Cir. 2000), cert. denied, 121 S. Ct. 1621

3
As explained in section III(D)(1), infra, while Neill has procedurally defaulted his
prosecutorial misconduct allegations, we will address his related ineffective-assistance
claims.

10
(2001); see also Washington v. Hofbauer, 228 F.3d 689, 699 (6th Cir. 2000) (noting that,

before assessing whether defense counsel was ineffective for failing to object to

prosecutorial misconduct, habeas court must first determine whether prosecutor in fact

committed misconduct).

C. Denial of impartial jury. A capital defendant may challenge for cause any

juror who will automatically vote to impose a death sentence upon a first degree murder

conviction. See Morgan v. Illinois, 504 U.S. 719, 729 (1992). Relying on Morgan, Neill

argues that the trial court and his defense attorney failed to question three individuals who

sat on Neill’s jury--Hyde, Loggins, and Hannabass--concerning whether each could

consider imposing a sentence less than death if the jury did convict Neill of first degree

murder. On appeal to this court, Neill asserts three theories warranting habeas relief on

this claim: 1) having any one of these three individuals on the jury violated Morgan;

2) the trial court’s failure to pose this question sua sponte deprived Neill of due process

and a fundamentally fair trial; and 3) defense counsel was constitutionally ineffective for

failing to make this inquiry.

1. Procedural posture. Because Neill did not challenge these three jurors

until his state post-conviction application, the Oklahoma Court of Criminal Appeals held

he had waived these claims. See Neill, 943 P.2d at 147-48. That state procedural bar is

adequate to preclude habeas review of Neill’s Morgan and due process claims. See Hale

v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000) (Oklahoma’s procedural bar, applicable

11
to most claims not raised on direct appeal, except ineffective-assistance claims, is

adequate and independent default rule), cert. denied, 121 S. Ct. 2608 (2001). Neill does

not assert either cause and prejudice excusing this default, nor that this court’s refusal to

consider these claims would result in a fundamental miscarriage of justice. See, e.g.,

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Neill’s procedural default, therefore,

precludes federal habeas review. See id.

The State’s procedural bar, however, is not adequate to preclude habeas review of

Neill’s ineffective-assistance claim because the same attorney represented Neill both at

trial and on direct appeal. See English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998); see

also Walker v. Gibson, 228 F.3d 1217, 1231-32 (10th Cir. 2000), cert. denied, 121 S. Ct.

2560 (2001). Accordingly, the State concedes that the merits of that claim are properly

before this court. See Appellee’s Br. at 22-23.

2. Ineffective assistance of trial counsel. This court’s inquiry is thus

limited to whether trial counsel was ineffective for failing to ask these three jurors if they

would automatically vote to impose a death sentence upon Neill’s first degree murder

conviction. To succeed, Neill must establish both that counsel’s performance was

deficient and Neill’s defense was thereby prejudiced. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Because the state appellate court did not address this claim’s merit,

this court’s review is de novo. See Thomas, 218 F.3d at 1220; see also Smith v. Gibson,

12
197 F.3d 454, 461 (10th Cir. 1999) (reviewing ineffective assistance claims, which

present mixed questions of law and fact, de novo), cert. denied, 531 U.S. 839 (2000).

Generally, “[a]n attorney’s actions during voir dire are considered to be matters of

trial strategy,” which “cannot be the basis” of an ineffective assistance claim “unless

counsel’s decision is . . . so ill chosen that it permeates the entire trial with obvious

unfairness.” Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997); see also Hale,

227 F.3d at 1317-18; Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir.), cert. denied, 531

U.S. 938 (2000). Further,

[l]awyers experienced in the trial of capital cases have widely varying views
about addressing the delicate balance between the disqualification of jurors
whose personal beliefs prevent them from ever imposing the penalty of
death under Witherspoon v. Illinois, 391 U.S. 510, 520-23 . . . (1968), and
those who would automatically recommend that sentence if they found the
defendant guilty. Morgan . . ., 504 U.S. 719 . . . . The difficulty of the task
is greater where[, as here,] there has been widespread publicity and public
comment about the crime, the investigation and pre-trial proceedings . . . .

United States v. McVeigh, 118 F. Supp. 2d 1137, 1152 (D. Colo. 2000) (28 U.S.C. § 2255

proceeding).

Here, defense counsel indicated to Neill, prior to trial, that he intended to

concentrate specifically on voir dire matters and he hoped thereby to create reversible

error. See Post-conviction application, app. E at 4, 14, 16. Further, either defense

counsel or the prosecutor asked all other prospective jurors whether they would consider

imposing a sentence less than death. Trial counsel, therefore, was well aware of the need

for this inquiry. Nevertheless, the record is insufficient to permit this court to determine

13
whether defense counsel’s failure to ask only these three jurors whether they would

automatically vote for a death sentence was strategic and, if so, whether that strategy was

reasonable.

Regardless, Neill has failed to establish any resulting prejudice. See Smith v.

Robbins, 528 U.S. 259, 286 n.14 (2000) (noting court may consider Strickland’s prejudice

component without first addressing adequacy of counsel’s performance). To do so, Neill

must show “there is a reasonable probability that, absent the errors, the sentencer . . .

would have concluded that the balance of aggravating and mitigating circumstances did

not warrant death.” Strickland, 466 U.S. at 695. Because “[i]f even one” juror who

would automatically vote for a death sentence “is empaneled and the death sentence is

imposed, the State is disentitled to execute the sentence,” Morgan, 504 U.S. at 729, we

address whether any of these jurors would have automatically voted to impose a death

sentence, see McVeigh, 118 F. Supp. 2d at 1152 (noting, in addressing similar

ineffective-assistance claim, that “[t]he primary focus is on the jurors’ willingness to

consider a life sentence after finding the defendant guilty of the crimes charged”); see

also Hale, 227 F.3d at 1320 (addressing claim that defense counsel was ineffective for

failing to remove biased jurors during voir dire by requiring petitioner to show jurors

were in fact biased).

To that end, Neill proffers his investigators’ affidavits indicating that, four years

after the trial, Juror Loggins “felt that the death penalty was the only appropriate

14
punishment for murder, under any circumstances,” Post-conviction application, app. H at

4, 12, and Juror Hyde “felt that if you take a life, you deserve the same sentence,” id. at

16, 17. The district court, however, did not abuse its discretion in refusing to consider

these affidavits, deeming them inadmissible hearsay.4 See United States v. Davis, 60 F.3d

1479, 1484 (10th Cir. 1995) (direct criminal appeal) (noting district court has discretion

to refuse to consider jury consultant’s affidavit containing hearsay concerning what jurors

had told her); see also Western Spring Serv. Co. v. Andrew, 229 F.2d 413, 419 (10th Cir.

1956) (holding, in civil action, that attorney’s affidavit concerning what juror told

attorney was hearsay, entitled to no consideration).

Even assuming this court could consider these affidavits, cf. Walker, 228 F.3d at

1233, they fail to show prejudice, cf. Hale, 227 F.3d at 1319 (noting, in addressing claim

that trial counsel was ineffective for failing to remove jurors with preconceived belief

defendant was guilty, that “[t]o show a juror was biased,” petitioner must show more than

that the juror “had a preconceived notion of guilt;” he “must show that the juror had such

a fixed opinion that he or she could not judge impartially”). Neill’s affidavits attribute to

these jurors single, brief, conclusory statements, without providing the context in which

these jurors made these statements, nor the time frame during which they were to have

held these beliefs. Moreover, “[c]onsideration of statements made by trial jurors after

4
The district court specifically addressed only the affidavits concerning Juror
Loggins.

15
they experienced the entire trial and sentencing hearing and after deliberating on the

verdicts are not reasonably probative of . . . whether [jurors] could consider the evidence

with open minds and follow the court’s instructions on the law . . . .” McVeigh, 118

F. Supp. 2d at 1153.

Apart from these affidavits, Neil points to Juror Hannabass’s response to the

question posed to him during voir dire as to whether he could consider imposing a death

sentence. Juror Hannabass answered “I can do it. I would like to.” Trial tr. vol II.

at 470-71. Neither defense counsel nor anyone else further questioned this juror

concerning his ability to consider imposing a sentence less than death. Nonetheless, this

ambiguous voir dire response, without more, is insufficient to establish that Juror

Hannabass would have automatically voted to impose a death sentence, upon Neill’s first

degree murder conviction. Cf. Moore v. Gibson, 195 F.3d 1152, 1170 (10th Cir. 1999)

(holding trial judge, in finding juror impartial and thus qualified to serve, and aided by

judge’s assessment of juror’s credibility, may resolve any ambiguity in juror’s voir dire

response in State’s favor).

For these same reasons, neither the investigators’ affidavits nor the voir dire

transcript are sufficient to have required the district court to conduct an evidentiary

hearing. See Walker, 228 F.3d at 1231. Neill, therefore, is not entitled to habeas relief on

this ineffective-assistance claim.

16
 D. Prosecutorial misconduct. Neill challenges several comments the

prosecutor made, arguing both that the remarks were improper and trial counsel was

ineffective for failing to object to them at trial. Because Neill did not assert these

prosecutorial-misconduct claims until his state post-conviction application, however, the

Oklahoma appellate court deemed him to have waived them. See Neill, 943 P.2d at

147-48. That independent state procedural bar will be adequate to preclude federal

habeas review, unless Neill can establish cause and prejudice excusing his default, or that

this court’s refusal to consider these claims will result in a fundamental miscarriage of

justice. See, e.g., Hale, 227 F.3d at 1328; see also Coleman, 501 U.S. at 750. Neill does

not here assert a fundamental miscarriage of justice. Instead, as cause excusing his

default, Neill argues that his appellate attorney was ineffective for failing to raise these

prosecutorial-misconduct claims on direct appeal. See generally Coleman, 501 U.S. at

752-54 (holding constitutionally ineffective assistance can establish cause excusing

procedural default). Strickland v. Washington, 466 U.S. 668 (1984), governs this

ineffective-appellate-assistance inquiry. See Smith, 528 U.S. at 285; see also Coleman,

501 U.S. at 752. Neill, therefore, must establish both that counsel’s performance was

deficient and that his defense was thereby prejudiced. See Strickland, 466 U.S. at 687.

Here, the relevant questions are whether appellate counsel was “objectively

unreasonable” in failing to raise these prosecutorial-misconduct claims on direct appeal

and, if so, whether there is a “reasonable probability that, but for his counsel’s

17
unreasonable failure” to raise these claims, Neill “would have prevailed on his appeal.”

Smith, 528 U.S. at 285-86 (applying Strickland, 466 U.S. at 687-91, 694). “When

considering a claim of ineffective assistance of appellate counsel for failure to raise an

issue, we look to the merits of the omitted issue.”5 Hooks v. Ward, 184 F.3d 1206, 1221

(10th Cir. 1999).

Applying Strickland, the state appellate court held Neill had failed to establish that

direct-appeal counsel’s performance was deficient. See Neill, 943 P.2d at 148. Our

review under AEDPA, then, is further restricted to determining whether the state

appellate court, in denying relief, unreasonably applied Strickland.6 See 28 U.S.C. §

5
This court has expressed this test in terms of appellate counsel's omitting a
"dead-bang winner," often defined in part as a claim that "would have resulted in a
reversal on appeal." United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995). To the
extent this language can be read as requiring the defendant to establish that the omitted
claim would have resulted in his obtaining relief on appeal, see, e.g., Smith v. Massey,
235 F.3d 1259, 1274 (10th Cir. 2000), cert. denied, 70 U.S.L.W. 3241 (U.S. Oct. 1, 2001)
(No. 01-5117); Walker v. Gibson, 228 F.3d 1217, 1237 (10th Cir. 2000), cert. denied, 121
S. Ct. 2560 (2001), rather than there being only a reasonable probability the omitted claim
would have resulted in relief, see Banks v. Reynolds, 54 F.3d 1508, 1515 n. 13 (10th Cir.
1995), this language conflicts with Strickland. See 466 U.S. at 694. The en banc court,
therefore, expressly disavows the use of the "dead-bang winner" language to imply
requiring a showing more onerous than a reasonable probability that the omitted claim
would have resulted in a reversal on appeal.
6
The state appellate court specifically held that Neill had failed to present any facts
“supporting his allegation that direct appeal counsel was ineffective for omitting [these
prosecutorial-misconduct] issues.” Neill 943 P.2d at 148. In denying relief, therefore, the
Oklahoma Court of Criminal Appeals did not specifically address appellate counsel’s
failure to raise each instance of alleged prosecutorial misconduct. Nonetheless, under
AEDPA, this court still defers to the state appellate court’s decision denying relief, even
though that court did not expressly state its reasoning on each specific claim. See, e.g.,
Walker, 228 F.3d at 1241 (citing Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999)).

18
2254(d)(1); see also, e.g., Elliott v. Williams, 248 F.3d 1205, 1208 (10th Cir. 2001), cert.

denied, 2001 WL 914885 (U.S. Oct. 1, 2001) (No. 01-5508).

Neill also argues that his trial attorney was ineffective for failing to object at trial

to the prosecutor’s improper comments. The state appellate court deemed Neill to have

also defaulted these ineffective-trial-counsel claims because Neill likewise did not raise

these claims until his state post-conviction application. See Neill, 943 P.2d at 147-48.

Because Neill had the same attorney at trial and on direct appeal, however, this

procedural bar is not adequate to preclude our habeas review. See English, 146 F.3d at

1263. We, therefore, also address the merits of Neill’s ineffective-trial-counsel claims.

Under Strickland, then, Neill must again establish both trial counsel’s deficient

performance and resulting prejudice to his defense. See 466 U.S. at 687. In the context

of a capital sentencing proceeding, the relevant prejudice inquiry is “whether there is a

reasonable probability that, absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did not warrant death.” Id. at

695. Because the state appellate court did not address the merits of Neill’s

ineffective-trial-counsel claims, our review is de novo. See Thomas, 218 F.3d at 1220;

see also Smith, 197 F.3d at 461.

To resolve these claims, therefore, we focus on the merits of the underlying

prosecutorial-misconduct claims. See Hooks, 184 F.3d at 1221; see also Werts, 228 F.2d

at 205 (holding trial counsel’s performance cannot be ineffective for failing to object to

19
the prosecutor’s proper remarks). Where a prosecutorial misconduct claim does not

implicate any specific constitutional right, Neill will be entitled to habeas relief only if the

prosecutor’s improper remark resulted in a fundamentally unfair proceeding. See

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974); see also, e.g., Rojem v.

Gibson, 245 F.3d 1130, 1142 (10th Cir. 2001). If, instead, the challenged comment

implicates a specific constitutional right, then Neill will not have to establish that the

remark rendered the entire proceeding fundamentally unfair. See, e.g., Walker, 228 F.3d

at 1241.

1. Mitigating evidence. During second-stage closing argument, the

prosecutor addressed each of Neill’s five proffered mitigating factors, arguing none of

them justified a sentence less than death under Oklahoma law. While Neill has the right

to have the jury consider any constitutionally relevant mitigating evidence he presents,

see, e.g., Buchanan v. Angelone, 522 U.S. 269, 276 (1998), citing cases, “[t]he prosecutor

is permitted to comment upon and to argue the appropriate weight to be given mitigating

factors,” Walker, 228 F.3d at 1243; see also, e.g., Fox, 200 F.3d at 1299-1300. Further,

the trial court did instruct jurors that it was their duty to determine what circumstances

were mitigating. See, e.g., Walker, 228 F.3d at 1243. The prosecutor’s argument,

therefore, was not improper. Neill’s trial attorney, thus, could not have been

constitutionally ineffective for failing to object to it. See, e.g., Werts, 228 F.3d at 205.

20
 Nor was appellate counsel objectively unreasonable for failing to raise this claim

on direct appeal. See Smith, 528 U.S. at 285 (applying Strickland, 466 U.S. at 687-91).

The state appellate court, therefore, did not unreasonably apply Strickland to deny Neill

relief on this ineffective-appellate-counsel claim.

2. Caldwell7 violation. In response to defense counsel’s argument that

the responsibility to impose, or to prevent, a death sentence rested with each individual

juror, the prosecutor argued that “an undue and unfair burden has been placed . . .

squarely on your shoulders that if any of you do not hold out then it’s gonna be your

responsibility and you’re gonna be the one that has caused Jay Neill to be executed.

That’s not our law.” Trial tr. vol. V at 1314.

Caldwell precludes improperly diminishing capital jurors’ sense of responsibility

for imposing a death sentence. See 472 U.S. at 323, 328-29, 341. This includes remarks

inaccurately describing the jury’s role under state law. See Romano, 512 U.S. at 9.

Considered in the context of the entire trial, see Walker, 228 F.2d at 1243, however, the

prosecutor’s remarks here did not mislead jurors as to their role in sentencing Neill to

death. See, e.g., Pickens v. Gibson, 206 F.3d 988, 999-1000 (10th Cir. 2000). Moreover,

the prosecutor had earlier argued that the jurors were there to decide whether to give Neill

the death penalty. See Walker, 228 F.3d at 1243. And the trial court instructed jurors that

it was their “duty to determine the penalty to be imposed.” O.R. at 130; see Walker, 228

7
Caldwell v. Mississippi, 472 U.S. 320 (1985) (plurality).

21
F.3d at 1243. Because these challenged remarks, considered in the context of the entire

trial, did not violate Caldwell, trial counsel was again not ineffective for failing to object.

See, e.g., Werts, 228 F.3d at 205.

Similarly, direct-appeal counsel was not objectively unreasonable for failing to

raise this Caldwell claim on direct appeal. See Smith, 528 U.S. at 285 (applying

Strickland, 466 U.S. at 687-91). The Oklahoma Court of Criminal Appeals, therefore, did

not unreasonably apply Strickland to deny Neill relief on his ineffective-appellate-counsel

claim based on these remarks. See 28 U.S.C. § 2254(d)(1).

Neill also complains that the prosecutor violated Caldwell by suggesting to jurors

that their decision to impose a death sentence was just a recommendation. In addition,

Neill challenges the prosecutor’s remarks again urging jurors not to “put the undue

burden on your shoulder that you’re the cause of the person losing their life or you’re the

cause of starting this down the track. You’ve done nothing . . . .” Trial tr. vol. V at 1325.

Later, the prosecutor informed jurors that they were “only one step in the process.” Id. at

1326. Because defense counsel objected to these comments, see id. at 1315, 1325-26,

however, Neill’s ineffective-trial-counsel claim fails.

Further, these remarks did not mislead jurors as to their sentencing role under state

law. See Romano, 512 U.S. at 9; see also Johnson v. Gibson, 254 F.3d 1155, 1161-62

(10th Cir. 2001), petition for cert. filed, (U.S. Sept. 24, 2001) (No. 01-6566). Appellate

counsel, therefore, was not objectively unreasonable in failing to raise this Caldwell claim

22
on direct appeal. See Smith, 528 U.S. at 285 (applying Strickland, 466 U.S. at 687-91).

Nor was there a “reasonable probability” that, had counsel raised this claim, Neill “would

have prevailed” on direct appeal. Id. at 285-86 (applying Strickland, 466 U.S. at 694).

The state appellate court, therefore, did not unreasonably apply Strickland to deny Neill

relief on this ineffective-appellate-assistance claim. See 28 U.S.C. § 2254(d)(1).

3. Comments on Neill’s homosexuality. Lastly, Neill challenges as

inflammatory the prosecutor’s two remarks concerning Neill’s homosexuality. First, the

prosecutor, challenging Neill’s proffered mitigating factor that he was acting under an

extreme emotional disturbance when he committed these crimes because he feared losing

his relationship with Johnson, noted Neill was “a vowed homosexual. He had a gay lover

he didn’t want to lose.” Trial tr. vol. V at 1283. The prosecutor then compared Neill’s

situation to the breakup of a heterosexual relationship or marriage, arguing neither

situation justified murder. See id. These comments on Neill’s homosexuality were

accurate, in light of the evidence, and were relevant to both the State’s case and Neill’s

defense theory. See Clayton v. Gibson, 199 F.3d 1162, 1174 (10th Cir. 1999) (upholding

prosecutor’s accurate and relevant comments), cert. denied, 531 U.S. 838 (2000). Neill

testified during the trial’s second stage about his turbulent relationship with Johnson.

And, prior to closing arguments, he proffered an instruction listing his mitigating factors,

including the fact that Neill “was suffering extreme mental and emotional disturbances

with regard to his relationship with Robert Grady Johnson which affected his mental

23
thought processes.” O.R. v. II at 138. “[T]he prosecutor is permitted to comment upon

and to argue the appropriate weight to be given mitigating factors.” Walker, 228 F.3d at

1243. Trial counsel, therefore, was not ineffective for failing to object to this remark.

See, e.g., Werts, 228 F.3d at 205.

For these same reasons, direct-appeal counsel was not objectively unreasonable for

failing to raise this claim on direct appeal. See Smith, 528 U.S. at 285 (applying

Strickland, 466 U.S. at 687-91). And there was not a “reasonable probability that, but for

his counsel’s unreasonable failure” to raise this claim, Neill “would have prevailed on his

appeal.” Id. at 285-86 (applying Strickland, 466 U.S. at 694). The state appellate court’s

decision denying relief on Neill’s ineffective-appellate-assistance claim, therefore,

reasonably applied Strickland. See 28 U.S.C. § 2254(d)(1).

The prosecutor made a second comment on Neill’s homosexuality:

If I could ask each of you to disregard Jay Neill and take him out of the
person but consider these things in a generic way. I want you to think
briefly about the man you’re sitting in judgment on . . . and believe
me, . . . you have every thing in this case, the good, the bad, everything that
the law allows to aid you in this decision. But just generic, just put in the
back of your mind what if I was sitting in judgment on this person without
relating it to Jay Neill, and I’d like to go through some things that to me
depict the true person, what kind of person he is. He is a homosexual. The
person you’re sitting in judgment on -- disregard Jay Neill. You’re deciding
life or death on a person that’s a vowed [sic] homosexual.

Trial tr. vol. V at 1285-86. Defense counsel then unsuccessfully objected. Because he

did so, he did not provide constitutionally ineffective representation.

The prosecutor continued

24
 I don’t want to import to you that a person’s sexual preference is an
aggravating factor. It is not. But these are areas you consider whenever
you determine the type of person you’re setting in judgment on. . . . The
individual’s homosexual. He’s in love with Robert Grady Johnson. He’ll
do anything to keep his love, anything.

Id. at 1287

There does not appear to be any legitimate justification for these remarks. They

are improper. Nonetheless, “not every improper or unfair remark made by a prosecutor

will amount to a federal constitutional deprivation.” Tillman v. Cook, 215 F.3d 1116,

1129 (10th Cir.) (citing Caldwell, 472 U.S. at 338), cert. denied, 531 U.S. 1055 (2000).

Rather, to warrant habeas relief, “it is not enough that the prosecutors’ remarks were

undesirable or even universally condemned. The relevant question is whether the

prosecutors’ comments so infected the trial with unfairness as to make the resulting

[sentencing decision] a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (further citation, quotations omitted). In considering whether the prosecutor’s

remark rendered the trial fundamentally unfair, this court considers the prosecutor’s

remark “in context, considering the strength of the State’s case and determining whether

the prosecutor’s challenged remarks plausibly could have tipped the scales in favor of the

prosecution.” Rojem, 245 F.3d at 1142-43 (further quotation omitted); see also Donnelly,

416 U.S. at 643 (considering fundamental fairness in light of entire proceedings).

“Ultimately, we consider the probable effect the prosecutor’s remarks had on the jury’s

ability to judge the evidence fairly.” Rojem, 245 F.3d at 1143.

25
 In this case, without in any way condoning the prosecutor’s remarks, we cannot

say that they tipped the scales of justice in the State’s favor or precluded jurors from

considering the evidence fairly. The State’s evidence, which was largely undisputed,

overwhelmingly established that, during a bank robbery, Neill stabbed three bank

employees to death, including one woman who was seven months pregnant. Neill also

attempted to decapitate each woman with a knife. He forced the five customers who

entered the bank during the robbery to lie face down in the back room where he had

stabbed the bank employees. Neill then shot four customers in the head, killing one and

wounding three others, and attempted to shoot the fifth, an eighteen-month-old child.

Afterwards, Neill flew to San Francisco with Johnson, where they spent the stolen money

on expensive jewelry and clothing, hotels, limousines and cocaine. Except for trying to

shoot the child, Neill admits committing these crimes. In addition to overwhelmingly

establishing Neill’s guilt, this evidence also fully supports the three charged aggravating

factors: Neill created a great risk of death to more than one person; he committed these

murders to avoid arrest and prosecution for the bank robbery; and the murders were

especially heinous, atrocious or cruel.

Neill did present some significant mitigating evidence. He admitted committing

these crimes, with the exception of trying to shoot the child, and he expressed his

remorse. In addition, Neill testified at sentencing concerning his background, including

his childhood medical problems, his physically abusive father and stepfather, Neill’s

26
newly found Christian faith, his relationship with Johnson, and Neill’s hope that his

testifying would facilitate his and the victims’ healing. He also assured jurors that he

would not pursue any appeals if they sentenced him to life without parole instead of

death. Neill further testified that he had corresponded with one of the injured victims,

who had forgiven him. And Pamela Matthews, who was the first person in the bank after

the robbery and who discovered the victims, also testified concerning Neill’s

communications with her, his remorse, and her forgiving him.

Nevertheless, in light of the overwhelming evidence supporting Neill’s guilt and

the charged aggravating factors, weighed against this mitigating evidence, we cannot say

that the prosecutor’s improper comments influenced the jury’s verdict or otherwise

rendered the capital sentencing proceeding fundamentally unfair. See, e.g., Rojem, 245

F.3d at 1142-43; see also Tillman, 215 F.3d at 1129-30.

Because the improper remarks did not result in a fundamentally unfair trial,

therefore, appellate counsel was not objectively unreasonable for failing to raise this

prosecutorial-misconduct claim on direct appeal. See Smith, 528 U.S. at 285 (applying

Strickland, 466 U.S. at 687-91). Nor was there a reasonable probability that, had

appellate counsel raised this claim, Neill would have prevailed on his direct appeal. See

id. at 285-86 (applying Strickland, 466 U.S. at 694).

27
 E. Ineffective representation at sentencing.

Neill argues his defense attorney ineffectively represented him during the capital

sentencing proceeding by failing to investigate and present additional mitigating

evidence. Although the Oklahoma Court of Criminal Appeals held Neill had waived this

claim by failing to raise it on direct appeal, see Neill, 943 P.2d at 147-48, the State does

not continue to assert that procedural default here. Again, because Neill had the same

attorney at trial and on direct appeal, and because the trial record alone would not have

been sufficient to resolve this issue, the state procedural bar is, in any event, not adequate

to preclude federal habeas review. See English, 146 F.3d at 1264; see also, e.g.,

McGregor v. Gibson, 219 F.3d 1245, 1252-53 (10th Cir. 2000), overruled on reh’g en

banc on other grounds, 248 F.3d 946 (10th Cir. 2001). Because the state appellate court

did not address this claim’s merit, however, we consider it de novo. See Thomas, 218

F.3d at 1220.

Neill must establish both that trial counsel’s representation at sentencing was

deficient, and he was thereby prejudiced. See Strickland, 466 U.S. at 687. We need

address here only whether any alleged deficiency prejudiced Neill. See, e.g., Smith, 528

U.S. at 286 n.14. In the context of a capital sentencing proceeding, the relevant prejudice

inquiry is “whether there is a reasonable probability” that, absent these alleged errors, the

jury “would have concluded that the balance of aggravating and mitigating circumstances

did not warrant death.” Strickland, 466 U.S. at 695. In making this determination, we

28
consider the strength of the State’s case, the aggravating circumstances the jury found, the

mitigating evidence defense counsel did present, and the additional mitigating evidence

the defense might have presented. See, e.g.,Walker, 228 F.3d at 1234.

The jury found that Neill had robbed a bank, killing four, wounding three others

and attempting to shoot an eighteen-month-old child. The jury further found the

existence of three aggravating factors as to each of the four murders. Overwhelming

evidence supported these findings. In mitigation, Neill admitted committing these crimes,

with the exception of shooting at the child, and expressed his remorse. In addition, Neill

testified concerning his background, including his childhood medical problems, his

physically abusive father and stepfather, Neill’s newly found Christian faith, his

relationship with Johnson, and Neill’s hope that his testifying would facilitate his and the

victims’ healing. He also assured jurors that he would not pursue any appeals if they

sentenced him to life without parole instead of death. Pamela Matthews, who was the

first person in the bank after the robbery and who discovered the victims, also testified

concerning Neill’s communications with her, his remorse, and her forgiving him.

Neill now argues that trial counsel should have investigated and presented

additional available mitigating evidence from Neill’s friends and family indicating that he

was, among other things, clean cut, loving, well behaved, easygoing, nonviolent, caring,

funny, outgoing, with lots of friends and girlfriends, compassionate, intelligent, loved,

devoted to his family, hardworking, and sincere in his apologies for the crimes. Neill

29
further asserts defense counsel should have obtained a psychiatric evaluation, which

would have shown that Neill had previously suffered a number of head injuries resulting

in unconsciousness and he had deficits in his reasoning, judgment and problem-solving

abilities, which would have been exacerbated by his emotional stress at the time these

crimes occurred.

In light of the State’s strong case and the number of aggravators the jury found,

there is no reasonable probability that, had trial counsel presented this additional

mitigating evidence, the jury would have imposed a sentence less than death. See, e.g.,

Walker, 228 F.3d at 1234; Hale, 227 F.3d at 1316-17; Smith, 197 F.3d at 463-64.

F. Trial court’s refusal to define further life sentence without possibility of

parole. The trial court instructed jurors that they could consider imposing sentences of

death, life imprisonment, or life imprisonment without the possibility of parole. Neill

challenges the trial court’s refusal to instruct further as to the meaning of life without

parole. The state appellate court held Neill had waived this claim by failing to raise it on

direct appeal. See Neill, 943 P.2d at 149-50. Although the State continues to assert this

procedural default, we instead address this claim’s merit, because the denial of relief can

be “more easily and succinctly affirmed” on that basis. Romero v. Furlong, 215 F.3d

1107, 1111 (10th Cir.), cert. denied, 531 U.S. 982 (2000).

30
 This court has previously determined that the trial court need not further define life

without the possibility of parole. See Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.),

cert. denied, 531 U.S. 1020 (2000). Additionally, while Neill relies on Simmons v. South

Carolina, 512 U.S. 154 (1994) (plurality), that decision concerned capital cases where a

defendant’s future dangerousness is at issue, see, e.g., O’Dell v. Netherland, 521 U.S.

151, 153 (1997); Mayes, 210 F.3d at 1294. Here, however, the State did not charge Neill

with the continuing threat aggravator.

G. Cumulative error. Because there was no constitutional error, Neill has also

failed to establish any cumulative error warranting habeas relief. See, e.g., Clayton, 199

F.3d at 1180.

IV. CONCLUSION

Having considered the record and the parties’ arguments, we AFFIRM the denial

of habeas relief.8

8
We also deny Neill’s motion for a certificate of appealability, see 28 U.S.C.
§ 2253(c), on his claims challenging the trial court’s admission of gruesome crime scene
and autopsy photographs, and the jury’s consulting a Bible during its deliberations. Neill
has failed to show that either claim makes a “substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2); see also, e.g., English v. Cody, 241 F.3d 1279,
1281 (10th Cir. 2001).

31
00-6024, Neill v. Gibson

LUCERO, Circuit Judge, dissenting.

I appreciate the revisions made to the majority opinion in response to the petition

for rehearing and my initial dissent. See Neill v. Gibson, 263 F.3d 1184, 1199 (10th Cir.

2001). While these changes bring us into closer accord,1 I nevertheless am unable to

conclude under Darden v. Wainwright, 477 U.S. 168 (1986), that petitioner received a fair

sentencing-phase trial despite the prosecutor’s direct request that the jury consider

petitioner’s homosexuality in its decision to impose the death penalty. The majority now

finds fault with the prosecution’s argument at the sentencing phase; labeling the argument

“improper,” the majority subjects the error to a balancing test and declines to correct it on

appeal. Respectfully, I do not consider this a matter of propriety.

I begin my analysis with the recognition that petitioner stands, and by our decision

today remains, convicted of murders of a most gruesome sort. Yet the level of

1
The prior majority opinion rejected petitioner’s claim that appellate counsel was
ineffective for failing to challenge the prosecutor’s comments about his homosexuality
based on the majority’s conclusion that the omitted claims were not “clearly meritorious.”
Neill v. Gibson, 263 F.3d 1184, 1195 n.5 (2001) (citing Johnson v. Gibson, 169 F.3d
1239, 1251 (10th Cir. 1999)). Although I concluded that the omitted claims were in fact
clearly meritorious, I expressed “serious reservations” about whether application of the
heightened “clearly meritorious,” or “dead-bang winner,” standard was in accord with the
Supreme Court’s decision in Smith v. Robbins, 528 U.S. 259, 285 (2000). See Neill, 263
F.3d at 1199 n.1 (Lucero, J., dissenting). Smith held that the proper standard for
reviewing claims of ineffective assistance of appellate counsel “is that enunciated in
Strickland v. Washington,” 466 U.S. 668 (1984). Smith, 528 U.S. at 285.
Today, the en banc Court expressly repudiates the “dead-bang winner” standard
for judging ineffective assistance of appellate counsel claims, and although the majority
reaches the same result as before, its opinion has been revised to reflect this en banc
determination.
repugnancy of a crime must not dictate the level of adherence to those constitutional

principles that define a fair trial in this country. The majority’s abstract reweighing of the

trial evidence to determine whether the prosecutor’s comments diminished the jury’s

ability to fairly consider the evidence allows it to conclude that there was no

constitutional error, but unmentioned in its analysis is the reality that gays and lesbians

are held in contempt by substantial numbers among us. This well-known prejudice

presents the only rationale for the prosecutor’s direct plea that the jury “disregard” Neill

as a person and consider him instead “a vowed [sic] homosexual.”

All criminal defendants are entitled to respect of the bedrock principles that define

our system of justice—due process and equal protection of the laws. U.S. Const. amends.

V, XIV; Bolling v. Sharpe, 347 U.S. 497, 499 (1954). While it has often been repeated

that a fair trial does not mean a perfect trial, see Delaware v. Van Arsdall, 475 U.S. 673,

681 (1986), at bottom, due process requires observance of fundamental fairness

throughout the entire criminal process. Bracey v. Gramley, 520 U.S. 899, 904–05 (1997).

Under our adversarial system—at the risk of the consequence of reversal—counsel are

expected to know and respect these core values of equality and fairness. Although an

inadvertent reference to a defendant’s race, sexual orientation, or religion may not

ordinarily merit more than a cautionary trial instruction, a blatant and direct plea—over

objection—to render a life-or-death decision based on such bias is in direct contravention

of this country’s constitutional principles and cannot be ignored. We must draw the line

-2-
where the racial or sexual plea is blatant and direct, and we must resolutely resolve

subject cases under that standard to assure that the line remains indelible. If by balancing

the evidence against the challenged comments we allow the repugnancy of the crime to

define the minimum standard of fairness of the adversary’s sullied fray, we also allow an

open appeal to prejudice to prevail. Because I am unwilling to so define equal justice or

fairness, I respectfully dissent.

I

As noted in the majority opinion, the state was not the first to bring Neill’s sexual

orientation to the jury’s attention. During sentencing, petitioner made no attempt to hide

the nature of his romantic relationship with Robert Grady Johnson, arguing that problems

in the relationship contributed to his criminal activity. Addressing this mitigating factor

in the closing argument, the prosecutor noted that petitioner was “a vowed [sic]

homosexual. He had a gay lover he didn’t want to lose.” (V Trial Tr. at 1283.) The

prosecutor continued, “Any of you ever been in a relationship that broke up? Did that

justify or warrant you going out and killing four people and shooting three others? . . .

The fact that you’re losing a lover does not put you in the emotional state where it would

justify this.” (Id.) I do not take issue with the majority’s disposition of these comments.

This first set of comments was followed a few pages later in the transcript by a

second set:

I’d like to go through some things and I’d like to do it in as generic a form
as I can. If I could ask each of you to disregard Jay Neill and take him out

-3-
of the person but consider these things in a generic way. I want you to think
briefly about the man you’re setting [sic] in judgment on and determining
what the appropriate punishment should be, and believe me, ladies and
gentlemen, you have every thing [sic] in this case, the good, the bad,
everything that the law allows to aid you in this decision. But just generic,
just put in the back of your mind what if I was sitting in judgment on this
person without relating it to Jay Neill, and I’d like to go through some
things that to me depict the true person, what kind of person he is. He is a
homosexual. The person you’re sitting in judgment on—disregard Jay
Neill. You’re deciding life or death on a person that’s a vowed [sic]
homosexual.

MR. PEARSON [Defense counsel]: Excuse me, Your Honor. May we
approach the bench, please?

THE COURT: You may.

MR. PEARSON: Your Honor, sexual preference is not an aggravating
circumstance and we believe it improper for the prosecutor to argue that one
of the factors the jury ought to consider in imposing the death penalty is a
sexual preference of homosexuality.

MR. SCHULTE [Prosecutor]: I’m not doing that, Your Honor. I’m
showing the make-up of this man. I’m gonna go through the deceptions
that he has practiced over the preparation and the planning of this, his
thought process, how he treated friends the reaction, he borrowed money
from Rhonda Neff at the same time he was forging a check on her. This
was stated from the outset. I’ve gone over the aggravating circumstances. I
am not in any way tying this or alluding that it is one and I’ll in fact tell the
jury such.

THE COURT: Objection’s overruled with exceptions to the defendant.

MR. SCHULTE [to jury]: . . . I don’t want to import to you that a person’s
sexual preference is an aggravating circumstance. It is not. . . . But these
are areas you consider whenever you determine the type of person you’re
setting [sic] in judgment on . . . .
The individual’s homosexual. He’s in love with Robert Grady
Johnson. He’ll do anything to keep his love, anything.

-4-
(Id. at 1285–87.) Defense counsel did not repeat his objection, and this issue of

prosecutorial misconduct was not raised on direct appeal by defendant’s appellate

counsel.

II

A

This second set of comments, in which the prosecutor blatantly and directly—over

objection—urges the jury to consider Neill’s homosexuality in weighing the aggravating

and mitigating evidence during his capital sentencing proceeding, speaks for itself. It is

not responsive to petitioner’s mitigation claim that he “was suffering extreme mental and

emotional disturbances with regard to his relationship with [Johnson] which affected his

mental thought processes.” (II Original R. at 138.) The majority agrees that the

comments constituted error. (Revised Majority Op. at 25 (“There does not appear to be

any legitimate justification for these remarks. They are improper.”).)

But what is it that makes the comments more than merely improper? As

prosecutors know, gays and lesbians are routinely subject to invidious bias in all corners

of society. See Richard A. Posner, Sex and Reason 291 (1992) (“The history of social

policy toward homosexuals in Western culture since Christ is one of strong disapproval,

frequent ostracism, social and legal discrimination, and at times ferocious punishment.”);

David A. J. Richards, Women, Gays, and the Constitution 296–97 (1998). This contempt

is acknowledged—writ large, as it were—in the Supreme Court’s decision in Bowers v.

-5-
Hardwick, 478 U.S. 186, 190 (1986) (holding that the Constitution does not “confer[] a

fundamental right upon homosexuals to engage in sodomy”), in which Chief Justice

Burger underscored:

Decisions of individuals relating to homosexual conduct have been subject
to state intervention throughout the history of Western civilization.
Condemnation of those practices is firmly rooted in Judeo-Christian moral
and ethical standards. . . . Blackstone described “the infamous crime
against nature” as an offense of “deeper malignity” than rape, a heinous act
“the very mention of which is a disgrace to human nature,” and “a crime not
fit to be named.” . . . To hold that the act of homosexual sodomy is
somehow protected as a fundamental right would be to cast aside millennia
of moral teaching.

478 U.S. at 196–97 (Burger, C.J., concurring) (citations omitted). Although gays and

lesbians face increasing acceptance in our culture,2 in the eyes of many, “gay people

remain second-class citizens.” William N. Eskridge, Jr., Gaylaw: Challenging the

Apartheid of the Closet 139 (1999). Today, almost half of all Americans continue to

think that homosexuality should not be considered an acceptable lifestyle. Frank

Newport, Gallup Org., American Attitudes Toward Homosexuality Continue to Become

More Tolerant, at http://www.gallup.com/poll/releases/pr010604.asp (June 4, 2001).

According to the Federal Bureau of Investigation, there were 1534 reported victims of

hate crimes motivated by anti-homosexual bias in 2000. Unif. Crime Reporting Program,

Fed. Bureau of Investigation, Hate Crime Statistics 2000 7 tbl.1 (2001).

2
See, e.g., Gay Children Need Support, Bishops Urge, N.Y. Times, Oct. 1, 1997, at
A14; Gustav Niebuhr, Reform Rabbis Back Blessing of Gay Unions, N.Y. Times, Mar.
30, 2000, at A1.

-6-
 The openly gay defendant thus finds himself at a disadvantage from the outset of

his prosecution. When a prosecutor directs the jury to make its guilt-innocence or life-

death determination on the basis of anti-homosexual bias, that disadvantage is magnified

exponentially and raises constitutional concerns. This is so because prosecutors occupy a

position of trust,3 and their exhortations carry significant weight with juries. As the

Supreme Court has said,

It is fair to say that the average jury, in a greater or less degree, has
confidence that these obligations, which so plainly rest upon the
prosecuting attorney, will be faithfully observed. Consequently, improper
suggestions, insinuations, and, especially, assertions of personal knowledge
are apt to carry much weight against the accused when they should properly
carry none.

Berger v. United States, 295 U.S. 78, 88 (1935). For this reason courts have overturned

convictions when prosecutors have made statements highlighting sexual orientation or

race in clear attempts to manipulate the prejudices of the jury. See United States v.

3
In the seminal case of Berger v. United States, 295 U.S. 78, 88 (1935), the Court
stated that the prosecutor

is the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done.

The Oklahoma Rules of Professional Conduct are in accord: “A prosecutor has the
responsibility of a minister of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice and that guilt is decided upon the basis of sufficient evidence.” Okla.
Rules of Prof’l Conduct R. 3.8 cmt. 1.

-7-
Birrell, 421 F.2d 665, 666 (9th Cir. 1970) (per curiam) (reversing conviction because

prosecutor’s comments “invited conviction irrespective of innocence of the crime

charged, upon the ground that appellant was a homosexual”); United States v. Doe, 903

F.2d 16, 24–28 (D.C. Cir. 1990) (reversing conviction for racially inflammatory remarks

during summation); Miller v. North Carolina, 583 F.2d 701, 704, 706–08 (4th Cir. 1978)

(same); United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 154–61 (2d Cir.

1973) (same). Our decision today thus creates a circuit split.4

The importance of the jury’s impartiality and the prosecutor’s conduct is

especially pronounced in capital sentencing proceedings, where the interplay between the

4
Direct remarks asking jurors to take race or sexual orientation into account in their
deliberations are distinguishable from comments that are relevant to the evidence and
limited to that purpose. For example, in Strouse v. Leonardo, 928 F.2d 548 (2d Cir.
1991), the prosecutor asked the defendant, who was on trial for murdering his mother,
“Did your mother also argue with you about the fact that you had homosexual men sleep
over your [sic] apartment?” Id. at 557 (brackets omitted). In addition, the prosecutor
referred to defendant’s homosexuality during summation. The Second Circuit concluded
that the prosecutor’s “remarks appear to have been limited to demonstrating tension
between Strouse and his mother,” and thus, “the cumulative effect of the prosecutor’s
alleged misconduct was not so severe as to amount to the denial of a fair trial.” Id.
In two of this Court’s decisions, United States v. Abello-Silva, 948 F.2d 1168
(10th Cir. 1991), and United States v. Soto, 988 F.2d 1548 (10th Cir. 1993), we
concluded that specific prosecutorial remarks did not render a trial fundamentally unfair
because there was abundant evidence supporting guilt and “the prosecutor did not use
ethnicity or nationality in an attempt to manipulate the jury.” Soto, 988 F.2d at 1559–60;
see also Abello-Silva, 948 F.2d at 1182 (“Having read both closing arguments in their
entirety, we conclude ethnicity or nationality was not used to manipulate the prejudices of
the jury.”).
In neither Strouse, Abello-Silva, nor Soto was there a direct appeal made to the
jury that it consider the defendant’s sexual orientation, race, or nationality in deciding the
case. These cases are therefore fundamentally different from the present challenge.

-8-
jury and the state has added significance. In Gregg v. Georgia, 428 U.S. 153, 192 (1976),

Justices Stewart, Powell, and Stevens, announcing the judgment of the Court, addressed

the concern that a capital jury may not be sophisticated enough to consider the imposition

of the death penalty. The Justices stated, “It seems clear, that the problem will be

alleviated if the jury is given guidance regarding the factors about the crime and the

defendant that the State, representing organized society, deems particularly relevant to the

sentencing decision.” Id.

Reason—not caprice or emotion—controls in capital sentencing proceedings. In

Gardner v. Florida, 430 U.S. 349 (1977), the Supreme Court explained the underlying

rationale:

From the point of view of the defendant, [the death penalty] is different in
both its severity and its finality. From the point of view of society, the
action of the sovereign in taking the life of one of its citizens also differs
dramatically from any other legitimate state action. It is of vital importance
to the defendant and to the community that any decision to impose the death
penalty be, and appear to be, based on reason rather than caprice or
emotion.

Id. at 357–58 (emphasis added).5 For these reasons, our analysis of constitutional

challenges at the capital sentencing stage proceeds with great care, effort, and attention.

5
See also Simmons v. South Carolina, 512 U.S. 154, 172 (1994) (Souter, J.,
concurring) (stating that a capital defendant is entitled to a “jury capable of a reasoned
moral judgment about whether death, rather than some lesser sentence, ought to be
imposed”); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality) (“Because
of the qualitative difference, there is a corresponding difference in the need for reliability
in the determination that death is the appropriate punishment in a specific case.”).

-9-
See Beck v. Alabama, 447 U.S. 625, 638 (1980) (“To insure that the death penalty is

indeed imposed on the basis of ‘reason rather than caprice or emotion,’ [the Supreme

Court has] invalidated procedural rules that tended to diminish the reliability of the

sentencing determination.” (quoting Gardner, 430 U.S. at 358)); Caldwell v. Mississippi,

472 U.S. 320, 329 (1985) (“Accordingly, many of the limits that this Court has placed on

the imposition of capital punishment are rooted in a concern that the sentencing process

should facilitate the responsible and reliable exercise of sentencing discretion.”).

The prosecutor’s precise words are so powerful that they bear repeating:

I want you to think briefly about the man you’re setting [sic] in judgment on
and determining what the appropriate punishment should be . . . . [J]ust put
in the back of your mind what if I was sitting in judgment on this person
without relating it to Jay Neill, and I’d like to go through some things that
to me depict the true person, what kind of person he is. He is a
homosexual. The person you’re sitting in judgment on—disregard Jay
Neill. You’re deciding life or death on a person that’s a vowed [sic]
homosexual.

(V Trial Tr. at 1285–86.) The majority’s observation that “[t]here does not appear to be

any legitimate justification for these remarks,” understates the matter. (Revised Majority

Op. at 25.) Justification for these remarks was unquestionably illegitimate. Exploiting

his position of trust and spinning the reality of anti-gay prejudice to a pivotal position in

the capital-sentencing phase, the prosecutor undermined the possibility that petitioner’s

sentence would be based on reason rather than emotion. With this understanding, I

proceed to analyze whether petitioner’s due process rights were violated in the context of

the entire proceedings.

-10-
 B

In analyzing prosecutorial misconduct claims, “it is not enough that the

prosecutor[’s] remarks were undesirable or even universally condemned.” Darden, 477

U.S. at 181 (quotation omitted). Although federal courts do not “hold[] every improper

and unfair argument of a state prosecutor to be a federal due process violation, [the cases

do] not insulate all prosecutorial comments from federal constitutional objections.”

Caldwell, 472 U.S. at 338. In this Circuit, we have expressed our duty to “view the

prosecutor’s statements in context” and have held that “we look first at the strength of the

evidence against the defendant and decide whether the prosecutor’s statements plausibly

could have tipped the scales in favor of the prosecution.” Fero v. Kerby, 39 F.3d 1462,

1474 (10th Cir. 1994) (quotation omitted) (emphasis added). “Ultimately, we must

consider the probable effect the prosecutor’s [statements] would have on the jury’s ability

to judge the evidence fairly.” Id.; see also Rojem v. Gibson, 245 F.3d 1130, 1142 (10th

Cir. 2001) (same); Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.) (same), cert. denied,

531 U.S. 1055 (2000).

According to the Supreme Court, the relevant question is “whether the

prosecutor[’s] comments ‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Darden, 477 U.S. at 181 (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). In Darden, petitioner challenged prosecutorial

comments made during the guilt-innocence phase of his trial for capital murder. The

-11-
Court considered the following factors instructive: (1) whether the weight of evidence

going to guilt was heavy, (2) whether the state manipulated or misstated evidence, (3)

whether the state’s remarks were invited by or responsive to the defense, (4) whether the

trial court issued a curative jury instruction, and (5) whether defense counsel was able to

cast the state’s comments and actions “in a light that was more likely to engender strong

disapproval than result in inflamed passions against petitioner.” Id. at 182. Concluding

that each of these factors weighed against Darden’s prosecutorial misconduct claim, the

Court affirmed the denial of habeas relief. Id.

I examine the Darden factors.

1. Could the prosecutor’s statements plausibly have tipped the scales in favor
of the death penalty in light of the strength of the evidence against
defendant?

Yes. Under our precedent, we first look to the strength of the evidence to “decide

whether the prosecutor’s statements plausibly could have tipped the scales in favor of the

prosecution.” Fero, 39 F.3d at 1474 (quotation omitted) (emphasis added). As the

majority explains, the evidence of petitioner’s guilt was strong:

The State’s evidence, which was largely undisputed, overwhelmingly
established that, during a bank robbery, Neill stabbed three bank employees
to death, including one woman who was seven months pregnant. Neill also
attempted to decapitate each woman with a knife. He forced the five
customers who entered the bank during the robbery to lie face down in the
back room where he had stabbed the bank employees. Neill then shot four
customers in the head, killing one and wounding three others, and attempted
to shoot the fifth, an eighteen-month-old child. Afterwards, Neill flew to
San Francisco with Johnson, where they spent the stolen money on
expensive jewelry and clothing, hotels, limousines and cocaine. Except for

-12-
 trying to shoot the child, Neill admits committing these crimes. In addition
to overwhelmingly establishing Neill’s guilt, this evidence also fully
supports the three charged aggravating factors: Neill created a great risk of
death to more than one person; he committed these murders to avoid arrest
and prosecution for the bank robbery; and the murders were especially
heinous, atrocious or cruel.

(Revised Majority Op. at 26.) Petitioner presented mitigating evidence, which the

majority also summarizes:

He admitted committing these crimes, with the exception of trying to
shoot the child, and he expressed his remorse. In addition, Neill testified at
sentencing concerning his background, including his childhood medical
problems, his physically abusive father and stepfather, Neill’s newly found
Christian faith, his relationship with Johnson, and Neill’s hope that his
testifying would facilitate his and the victims’ healing. He also assured
jurors that he would not pursue any appeals if they sentenced him to life
without parole instead of death. Neill further testified that he had
corresponded with one of the injured victims, who had forgiven him. And
Pamela Matthews, who was the first person in the bank after the robbery
and who discovered the victims, also testified concerning Neill’s
communications with her, his remorse, and her forgiving him.

(Id. at 26–27.) Concentrating on this Darden factor, and overlooking the remaining

factors, the majority concludes, “[I]n light of the overwhelming evidence supporting

Neill’s guilt and the charged aggravating factors, weighed against this mitigating

evidence, we cannot say that the prosecutor’s improper comments influenced the jury’s

verdict or otherwise rendered the capital sentencing proceeding fundamentally unfair.”

(Id. at 27.) According to the majority, it “cannot say that [the prosecutor’s remarks]

tipped the scales of justice in the State’s favor or precluded jurors from considering the

evidence fairly.” (Id. at 26.)

-13-
 I find this analysis deficient for several reasons. Most importantly, it ignores the

qualitative difference between the guilt-innocence and capital-sentencing stages of trial, a

distinction acknowledged in Darden itself. See Darden, 477 U.S. at 183 n.15 (“In this

case, the comments were made at the guilt-innocence stage of trial, greatly reducing the

chance that they had any effect at all on sentencing.”); Caldwell, 472 U.S. at 329 (stating

that “the qualitative difference of death from all other punishments requires a

correspondingly greater degree of scrutiny of the capital sentencing determination.”

(quoting California v. Ramos, 463 U.S. 992, 998–99 (1983))). During the guilt-innocence

phase, the jury’s task was straightforward. If the state proved its case beyond a

reasonable doubt, the jury was to find petitioner guilty.6 In sentencing, however, the jury

was merely authorized, and not required, to sentence petitioner to death even if the

aggravating evidence was overwhelming. The jury was instructed:

Should you unanimously find that one or more aggravating
circumstances exist beyond a reasonable doubt, you would be authorized to
consider imposing a sentence of death.

(II Original R. at 135.) This instruction was in accord with Oklahoma’s statutory

sentencing scheme, see Okla. Stat. Ann. tit. 21, § 701.11, and Oklahoma Court of

Criminal Appeals cases, which have “repeatedly held that [it] will not establish specific

standards for the balancing of aggravating and mitigating circumstances.” Hamilton v.

6
The Jury was instructed: “The Defendant is presumed innocent of the crimes and
the presumption continues unless after consideration of all the evidence you are
convinced of his guilt beyond a reasonable doubt.” (II Original R. at 166 (Jury
Instruction No. 2).)

-14-
State, 937 P.2d 1001, 1011 (Okla. Crim. App. 1997) (citation omitted);7 Duckett v. State,

919 P.2d 7, 23 (Okla. Crim. App. 1995) (“[T]his Court has held that the burden of proof

analysis is not strictly applicable to the weighing process.”). Like other states, Oklahoma

has “plainly made an effort to guide the jury in the exercise of its discretion, while at the

same time permitting the jury to dispense mercy on the basis of factors too intangible to

write into a statute.” Gregg, 428 U.S. at 222 (Opinion of White, J.).8 As a result, the

“weight of the evidence” analysis is not as straightforward as it may appear at first blush.

In weighing the strength of the evidence, the proper inquiry under our precedent is

not whether, as the majority requires, the prosecutor’s comments actually tipped the

scales in the state’s favor, but whether they “plausibly could have tipped the scales in

favor of the prosecution.” Fero, 39 F.3d at 1474 (quotation omitted) (emphasis added).

Utilizing plausibility as the central inquiry, the alternative proposition—that the

prosecutor’s comments tipped the scales in favor of the prosecution—is a reasonable one,

especially given that a death penalty assessment requires unanimous juror approval.

7
A separate holding in Hamilton was overruled in Alverson v. State, 983 P.2d 498,
521 n.109 (Okla. Crim. App. 1999).
8
Death is never compelled. Earlier this year, for example, the federal jury
empaneled in United States v. Bin Laden, No. S(7)98 CR.1023(LBS) (S.D.N.Y.),
rejected the death sentence for Mohamed Rashed Daoud Al-’Owhali, who was convicted
for the killing of 213 people with a truck bomb at the United States Embassy in Nairobi,
Kenya. Mark Hamblett, Jury Rejects Death Penalty for U.S. Embassy Bomber, N.Y.L.J.,
June 13, 2001, at 1. Similarly, the jury was unable to reach a unanimous verdict of death
in the prosecution of Terry Nichols for his role in bombing a federal building in
Oklahoma City that resulted in 168 deaths. See United States v. Nichols, 169 F.3d 1255
(10th Cir. 1999) (affirming life sentence).

-15-
Okla. Stat. Ann. tit. 21, § 701.11; Abshier v. State, 28 P.3d 579, 608 (Okla. Crim. App.

2001) (“The class of persons eligible to receive a punishment of death is further narrowed

in Oklahoma by the restriction that . . . only a unanimous 12 member jury of the

defendant’s peers can set punishment at death.”); see also Hooks v. State, 19 P.3d 294,

316 (Okla. Crim. App. 2001).

There is also the fact that the prosecutor’s second set of comments unambiguously

directed the jury to consider petitioner’s homosexuality in imposing a life or death

sentence. In Caldwell, the Supreme Court made the distinction between remarks that are

“quite focused, unambiguous, and strong” and those that are “admittedly . . . ambiguous.”

472 U.S. at 339–40. The challenged comments in this case fit into the former category

and thus weigh heavily in my due process analysis.

I conclude that the evidence, while admittedly strong as to guilt, is not dispositive

as to sentencing, particularly given the nature of the challenged prosecutorial comments

and the setting in which they were made. I proceed to consider the remaining factors

disregarded by the majority.

2. Did the state improperly manipulate the evidence?

Yes. As stated above, supra Part II.A, the challenged prosecutorial comments

manipulated the fact of petitioner’s homosexuality to the state’s advantage. The state

now seeks, however, to diminish the impropriety of the remarks by claiming that “sexual

orientation was relevant to the issues in the case because it was the problems arising from

-16-
the relationship with Johnson that provided the motivation for the robbery and murders.”

(Appellee’s Br. at 42.) I agree with the majority that the second set of comments is in no

way responsive to petitioner’s claim that he “was suffering extreme mental and emotional

disturbances with regard to his relationship with [Johnson] which affected his mental

thought processes.” (II Original R. at 138.) I also agree with the majority that the

argument was improper. My only disagreement is that I consider the error to be of a

greater degree.

Admittedly, this would be a different case if the prosecutor’s remarks had been

limited to his first set of comments, in which he argued that “losing a lover does not put

you in the emotional state where it would justify this.” (V Trial Tr. at 1283.) Those

comments are responsive to petitioner’s mitigation evidence and not a direct invocation of

anti-homosexual bias.

3. Were the prosecutor’s comments invited or responsive?

No. “[T]he idea of ‘invited response’ is used not to excuse improper comments,

but to determine their effect on the trial as a whole.” Darden, 477 U.S. at 182. This factor

highlights a critical point in this case. As in my earlier dissent, I reject the proposition

that the subject remarks were harmless because the defendant brought up the fact of his

homosexuality and gay relationship. Under “he brought it up” reasoning, a direct appeal

to a jury that it consider a defendant’s race would be permissible if a defendant

introduced evidence of his ethnicity—or that of a partner—or if it was otherwise apparent

-17-
that a defendant belonged to a particular minority group; and an appeal to consider a

defendant’s religion would be permissible if the defendant introduced relevant testimony

about his religious persuasion—or that of a partner—or if it was otherwise apparent. To

accept the “he brought it up” justification for the prosecutor’s comments would chill the

rights of any minority defendant or any defendant in an inter-racial, inter-ethnic, inter-

religious, or homosexual relationship.

Although the prosecutor’s first set of comments were responsive to petitioner’s

mitigation argument that the stress of his relationship impacted his mental thought

processes, the second comments were not. No convolution can twist the facts of this case

into invited error under this factor.

4. Did the district court issue a curative instruction?

No. Remarkably, there was no curative instruction. To the contrary, no effort was

made by the trial court to neutralize the remarks. The trial court’s overruling of defense

counsel’s objection effectively stamped an imprimatur of approval on the prosecution’s

comments, leaving the jury with the impression that it was acceptable to consider the fact

of defendant’s homosexuality in determining whether to sentence him to life or death.

5. Was defense counsel able to cast the prosecutor’s comments in a light likely
to neutralize them?

No. Defense counsel was not able to cast the prosecutor’s comments “in a light

that was more likely to engender strong disapproval than result in inflamed passions

-18-
against petitioner.” Darden, 477 U.S. at 182. Given the trial court’s refusal to correct the

subject error, defense counsel had no alternative but to sit on his hands.

C

Based on the foregoing analysis, which includes consideration of the four Darden

factors unaddressed by the majority, I conclude that the prosecutor’s comments limited

the jury’s ability to make an impartial decision regarding Neill’s sentence, which is what

our precedent requires me to determine. See Rojem, 245 F.3d at 1143 (“Ultimately, we

consider the probable effect the prosecutor’s remarks had on the jury’s ability to judge the

evidence fairly.”). In the face of such a blatant due process violation, the Oklahoma

Court of Criminal Appeals’ decision that Neill’s appellate counsel was not ineffective in

failing to challenge the violation is an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984). Neill’s appellate counsel was deficient in failing to

raise this prosecutorial misconduct claim, and Neill was prejudiced by this deficient

performance. To my mind, “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

III

My confidence in petitioner’s sentence is further undermined by the likelihood that

he was denied an impartial jury due to the failure of both the court and his trial counsel to

inquire on voir dire whether three members of the jury were predisposed to impose the

-19-
death penalty. Neill proffers affidavits prepared by the Oklahoma Indigent Defender

System (“OIDS”) reporting statements made by two of the jurors, Rusella Loggins and

Glen Nelson Hyde, III, during interviews with OIDS investigators. Loggins told an

investigator that she believed death was the only appropriate punishment for murder

under any circumstances. Hyde, the jury foreman, told another investigator that when a

person takes a life, he or she deserves the same sentence. Neill also points to a third

juror’s voir dire response in which he stated that he would “like” to impose a death

sentence. (II Trial Tr. at 471.)

I agree with the majority that we are constrained to review Neill’s biased jury

claim through the lens of ineffective assistance of counsel. Such claims are evaluated

under the familiar two-pronged approach of Strickland, 466 U.S. at 687. Under that

analysis, Neill must show his “counsel’s performance fell below an objective standard of

reasonableness, and there is a reasonable probability that, but for counsel’s errors, the

outcome of the proceedings would have been different.” Nguyen v. Reynolds, 131 F.3d

1340, 1347 (10th Cir. 1997) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

“[C]ounsel’s actions during voir dire are presumed to be matters of trial strategy.” Fox v.

Ward, 200 F.3d 1286, 1295 (10th Cir. 2000). Consequently, claims of ineffective

assistance of counsel at voir dire cannot succeed “unless counsel’s decision is shown to

be so ill chosen that it permeates the entire trial with obvious unfairness.” Nguyen, 131

F.3d at 1349.

-20-
 Against that background is the requirement that persons the state wishes to execute

be convicted and sentenced by impartial juries. In particular, the Supreme Court held in

Morgan v. Illinois, 504 U.S. 719, 729 (1992), that “a capital defendant may challenge for

cause any prospective juror who [will automatically impose the death penalty]. If even

one such juror is empaneled and the death sentence is imposed, the State is disentitled to

execute the sentence.” Further, the Court noted that although “[t]he Constitution . . . does

not dictate a catechism for voir dire, . . . part of the guarantee of a defendant’s right to an

impartial jury is an adequate voir dire to identify unqualified jurors.” Id. (citations

omitted). We have echoed the Court’s concern about adequate voir dire in death penalty

cases. United States v. Chanthadara, 230 F.3d 1237, 1269 (10th Cir. 2000) (“[B]ecause

the jurors are vested with greater discretion in capital cases, the examination of

prospective jurors must be more careful than in non-capital cases.”); Hale v. Gibson, 227

F.3d 1298, 1318 (10th Cir. 2000) (“[D]ue process requires a voir dire examination of a

potential juror’s views on the death penalty.”). I read Morgan, Chanthadara, and Hale as

not only permitting, at a party’s request, a thorough voir dire of potential jurors’ views of

the death penalty, but actually requiring that such questioning take place as a matter of

due process.

Neill’s counsel’s performance was deficient based on the requirement of an

adequate voir dire. Despite receiving a response that indicated that Juror Hannabass

“would like to” sentence Neill to death, “[n]either defense counsel nor anyone else further

-21-
questioned this juror concerning his ability to consider imposing a sentence less than

death.” (Revised Majority Op. at 16.) This deficiency was exacerbated by the fact that

the entire trial revolved around the penalty phase. Neill’s trial counsel basically conceded

guilt (a reasonable decision considering the overwhelming evidence against Neill). That

situation should have made Neill’s counsel especially vigilant concerning jurors’ attitudes

about the death penalty as it was certain that they would be called upon to decide whether

death was the appropriate punishment. Under those circumstances, failing to ask jurors

their views on the death penalty could not have been a viable strategy.

In addition, I question the majority’s contention that “the record is insufficient to

permit this court to determine whether defense counsel’s failure to ask only these three

jurors whether they would automatically vote for a death sentence was strategic.” (Id.. at

13-14.) To the contrary, the record in this case clearly indicates that it was counsel’s

strategy to question jurors about their views on the death penalty. In letters to Neill, his

counsel stated that he would “concentrate” on voir dire (Post-Conviction Application

App. E at 4) and that he was aware of Morgan and would “just ask enough [at voir dire]

to preserve error for review” (id. at 14). In addition, someone, “either defense counsel or

the prosecutor[,] asked all . . . prospective jurors” other than the three who are the

subjects of the proffered affidavits “whether they would consider imposing a sentence

less than death.” (Revised Majority Op. at 13.) The unexplained failure to question these

-22-
jurors—which flies in the face of everything in the record—can be viewed as nothing

other than objectively deficient performance by Neill’s counsel.

As for the prejudice prong, the majority concludes that the proffered affidavits are

too conclusory to merit habeas relief. While I agree that standing alone the affidavits do

not merit vacating Neill’s sentence,9 when combined with the prosecutor’s homophobic

remarks, they further undermine confidence in the jury’s verdict and lend additional

support to my conclusion that Neill’s death sentence cannot stand.

IV

I understand the temptation lawyers may have to read our ultimate holding—affirm

or reverse—first and the Court’s analysis second. The message of this case will then be

unavoidable. Bottom line: The prosecutor got away with conduct that the majority labels

“improper” and that I consider outrageous and overwhelmingly prejudicial. I consider the

9
Even considered in isolation, the affidavits do raise sufficiently serious allegations
to require an evidentiary hearing. Neill “is entitled to an evidentiary hearing ‘if his
allegations, if true and not contravened by the record,’ entitle him to habeas relief.”
Walker v. Gibson, 228 F.3d 1217, 1231 (10th Cir. 2000) (quoting Mayes v. Gibson, 210
F.3d 1284, 1287 (10th Cir. 2000)). Neill meets that standard: the Supreme Court has
held that “[i]f even one such [biased] juror is empaneled and the death sentence is
imposed, the State is disentitled to execute the sentence.” Morgan, 504 U.S. at 729
(emphasis added). In this case, the deficient performance of Neill’s trial counsel
potentially permitted three biased jurors to sit on the jury that imposed his death sentence.
An evidentiary hearing would address the majority’s concerns with the shortcomings of
Neill’s affidavits. To avoid hearsay problems the jurors themselves could be called to
testify. Full questioning would “provid[e] the context in which these jurors made the[]
statements [in their affidavits]” and would supply “the time frame during which they . . .
held these beliefs.” (Revised Majority Op. at 15.) Such a hearing is not necessary, in my
view, because Neill is entitled to resentencing outright based on his prosecutorial
misconduct claim.

-23-
error before us to be of a magnitude that “seriously affect[s] the fairness, integrity, [and]

public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732

(1993) (quotation omitted). The precedent for future cases is disturbing.

All litigants—prosecution and defense alike—have committed to a higher calling.

As lawyers we pledge to defend and support the American constitutional values that

define fairness and equal justice for all defendants. Because the prosecutor was deficient

under Darden in having implored the jury to violate these tenets, and because petitioner’s

appellate counsel was deficient under Strickland in failing to challenge the prosecutor’s

comments on appeal, I would grant habeas relief as to the sentencing phase of trial and

remand the case for re-sentencing. Finding no constitutional error in the guilt phase of

the trial, I would not disturb the conviction of guilt.

-24-