(concurring) :
I concur in the opinion of Judge Oakes. I cannot agree with Judge Hays that the comments of the prosecutor here, while admittedly vulgar and revolting, do not rise or perhaps fall to the level of unconstitutionally prejudicial conduct. The majority opinion sets forth in detail the demeaning comments of the prosecutor who was trying black men before an all *162white jury. In light of his prior comments, the closing sentences of the summation to the jury constitute a blatant appeal to racial prejudice.
We cannot take these people out of the community unless you twelve people sittingUn judgment on these matters decide these things have got to stop. I ask you to find these defendants guilty on all counts of this indictment and you can go home with the clearest conscience that you have ever had.*
There is no doubt after reading the entire charge that “these people” are not simply these defendants but these black people. There is no room for this in a state court or in a federal court and the paucity of direct authority for finding it constitutionally offensive, is attributable hopefully to the fact that prosecutors today rarely, if ever, seek to introduce the poison of prejudice into the deliberative processes of the jury. I am persuaded that this was done here and that this petitioner was not simply a member of a race which was viewed with contempt but that he was denied due process.
For an interesting parallel see the last sentence of the Commonwealth’s summation in the Saeeo-Vanzetti trial:
Gentlemen of the jury, do your duty. Do it like men. Stand together, you men of Norfolk! characterized by Felix Frankfurter as “an appeal to their solidarity against the alien.” F. Frankfurter, The Case of Sacco and Vanzetti 64 (Little, Brown & Co. 1962).