concurring in part and dissenting in part:
I concur in that part of the majority’s opinion which holds that the instruction on malice given at Brook’s trial placed upon him the initial burden of disproving malice in violation of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and that the Sandstrom error was not harmless. However, I cannot agree with section two of the majority’s opinion which holds that the prosecutor’s closing argument at the penalty phase of Brook’s trial did not render that proceeding fundamentally unfair.
In section two, the majority opinion begins by recognizing the inherent dangers in improper arguments by prosecutors given the special role of the prosecutor in the criminal justice system. However, from that starting point the majority then adopts the prejudice standard of Strickland v. Washington, — U.S.-, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to determine whether any particular argument made by a district attorney violates fundamental fairness. In my view, the majority’s new standard is in conflict with existing Supreme Court precedent and the constitutional considerations underlying that precedent. Both policy, as well as the analogous precedent of Supreme Court decisions, require that a federal court on habeas corpus review first determine whether the argument has exceeded constitutional boundaries, i.e., did it render the proceeding fundamentally unfair. Although an unconstitutional closing argument may not require habeas corpus relief if the error is harmless, the burden of proof rests on the state, the beneficiary of the error, to show that the error was harmless beyond a reasonable doubt. In contrast, the Strickland standard adopted by the majority shifts the burden of proof to the defendant to show that the error affected the outcome in his case. This conclusion is erroneous.
I. The Role of the Prosecutor
In our adversary system the prosecutor plays a special role. The prosecutor is both an advocate and an administrator of justice. It is his or her duty not only to convict but to seek justice.1 See A.B.A. Standards for Criminal Justice, 2nd Ed. (1982) § 3-l.l(b)(c); A.B.A. Code of Profes*1432sional Responsibility, EC 7-3. As the Court said in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 655 (1935),
“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 prosecutor, therefore, wields the sword of justice. “It is his duty to recall that this sword, though forged in the flame heat of zeal is alloyed with the iron of restraint.” Houston v. Estelle, 595 F.2d 372, 384 (5th Cir.1978). The reasons that restraint is required are obvious. The defendant, the accused, simply by being brought to trial is a vulnerable target. Second, prosecutors who deal in these matters daily should be expected to be more restrained by virtue of their experience. Third, the prosecutor is a state employee and this frequently creates in jurors a sense of trust and fairness in and by him. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex.L. Rev. 629, 632 (1972). Jurors, in varying degrees, are predisposed to give great weight to the words of a prosecutor. See Berger, supra, 295 U.S. at 88, 55 S.Ct. at 633; See also A.B.A. Standards for Criminal Justice, § 3-5.8 (commentary). Therefore, a prosecutor should refrain from closing arguments calculated to inflame the passions of the jury or that serve to divert a jury from its duty to decide the case solely on the evidence. The prosecutor thus has a duty to guard the rights of the accused as well as those of society at large. A.B.A. Standards, § 3 — 5.8(c)(d). This is so because, “[s]ociety wins not only when the guilty are convicted but when criminal triais are fair; our system of justice suffers when any accused is treated unfairly." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963).
Unfortunately, prosecutorial excess in closing argument is not an isolated or rare event. Judges and commentators bemoan its frequency but as of yet have had difficulty reducing it or offering useful suggestions for its reduction. Courtroom Misconduct, supra, 50 Tex.L.Rev. at 631. One former prosecutor and now a Florida state trial judge has said, “[p]rosecutorial misconduct in closing argument is increasing in frequency and appears to be perniciously resistant to eradication. Because of its potentially disastrous effects upon a criminal trial, it demands the attention of prosecutors and the defense bar alike.” Defoor, Prosecutorial Misconduct in Closing Argument, 7 Nova L.Rev. 443 (1983).2 With these considerations in mind, an analysis of what constitutes the proper inquiry and of the error of the majority opinion follows. II. The Proper Inquiry
It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); see also In Re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). This is a fundamental liberty secured by the Fourteenth Amendment. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1961, 48 L.Ed.2d 126 (1976). As a result of this principle, any defendant in a criminal case has a right to an impartial dispassionate jury and a decision based solely upon the evidence developed at the trial. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). “This is true regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in *1433life which he occupies.” Id.3 See also Chessman v. Teets, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957).
In order to secure this right, limitations are placed on the conduct of the state both before and during trial. The state for example has a duty to minimize the adverse affects of pretrial and trial publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). A defendant generally cannot be forced to appear at trial in prison clothes and/or handcuffed. Estelle v. Williams, supra; see also Boswell v. Alabama, 537 F.2d 100 (5th Cir.1976). The prosecution cannot knowingly use false or perjured testimony to obtain a conviction. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). A defendant is entitled to an instruction on the presumption of innocence, Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), and he must be found guilty beyond a reasonable doubt. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). And, as was stated earlier, the state cannot attempt to inflame or otherwise prejudice the jury in closing argument. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The purpose of all of these protections is to insure that a defendant’s criminal trial comports with the fundamental fairness mandated by the due process clause.4
Due process is not a technical conception with a fixed content unrelated to time, place, and circumstances; it has never been and perhaps never can be precisely defined. Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158-59, 68 L.Ed.2d 640 (1981). “Fundamental Fairness”, as a by product of due process, is “a term whose meaning can be as opaque as its importance is lofty.” Id. Therefore, fundamental fairness in a particular situation considers any relevant precedents and then assesses the interest at stake. 452 U.S. at 25, 101 S.Ct. at 2158-59. The Supreme Court has made clear that not every improper closing argument by a state prosecutor requires federal habeas corpus relief. The argument must constitute a “failure to observe the fundamental fairness essential to the very concept of ordered liberty” thus resulting in a denial of Fourteenth Amendment due process. Donnelly, supra. As the Court said in Donnelly, “the process of constitutional line drawing in this regard [of evaluating improper arguments by prosecutors] is necessarily imprecise.” 416 U.S. at 645, 94 S.Ct. at 1872. This is a judgment to be made by the federal habeas court after reviewing the entire argument in the context of the trial or the sentencing proceeding. Cronnon v. Alabama, 587 F.2d 246 (5th Cir.) cert. denied, 404 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). The majority’s search for a more precise standard is admirable. However, the result of that search places the burden of proof on the accused to show that the argument in question affected the outcome in his case. This results in virtually no restraints being placed upon the prosecution. The majority does not suggest how the accused could undertake such proof, and this writer cannot envision any methodology.
A. The Role of the Harmless Error Test
Generally, once there has been a showing of a constitutional violation, a habeas corpus petitioner may still not be entitled to relief in some instances if the error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967); see also United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 1986, 76 L.Ed.2d 96 (1983) (Stevens, J., concurring). Some errors because of their importance, such as the complete denial of the right to counsel *1434at a critical stage of a proceeding, can never be harmless. United States v. Cronic, — U.S.-, 104 S.Ct. 2039, 80 L.Ed.2d 657, 668, n. 25 (1984).
Other errors, however, can under certain circumstances be considered harmless. Those circumstances will vary depending on the nature and seriousness of the error, whether it was intentional or unintentional, and the extent to which a reviewing court can determine the impact of the error on the decision making body. In a harmless error inquiry, the Supreme Court has stated as the test:
We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id., at 86-87, 84 S.Ct. at 230____ Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment. There is little, if any, difference between our statement in Fahy v. State of Connecticut about “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained____
Applying the foregoing standard, we have no doubt that the error in these cases was not harmless to petitioners. To reach this conclusion one need only glance at the prosecutorial comments compiled from the record by petitioners’ counsel and (with minor omissions) set forth in the Appendix.
Chapman, supra, 386 U.S. at 23-24, 87 S.Ct. at 827-828 (footnotes omitted) (emphasis added). See also Connecticut v. Johnson, 460 U.S. 73,103 S.Ct. 969, 975, 74 L.Ed.2d 823 (1983) (plurality opinion).
Chapman itself was a prosecutorial misconduct case, (comment by the prosecutor during closing argument on the defendant's failure to testify). The test articulated in Strickland, supra, cannot be invoked logically in a prosecutorial misconduct case. To do so is to place the burden of proof on the victim of the error to show that the prosecutor's argument affected his trial or sentencing hearing.
B. Strickland v. Washington
In Strickland the Supreme Court held that in order to make out a sixth amendment claim of ineffective assistance of counsel a defendant must show that: (1) the errors complained of were outside the broad range of effective assistance, and; (2) that the errors prejudiced the defendant. In order to show prejudice, the “defendant must show that there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”. 104 S.Ct. at 2064. The burden of proof is thus squarely on the defendant. Such a result makes sense in an ineffective assistance of counsel context. There, a petitioner is challenging the acts of his own counsel, i.e. his own agent. First, the role of one’s attorney is to protect the interest of his client. Moreover, the client arguably has some control over the acts of counsel. Certain actions, as the Court recognized, may be the result of tactical decisions made either by the client or the lawyer, or both. Id. at 2068. Representation is frequently an art and what is reasonable in one case may be unreasonable in another. Therefore, reviewing courts are hesitant to second guess trial counsel. Id. Finally, “the government is not responsible for attorney errors in these cases.” Id. at 2069 (emphasis added).
None of these considerations is applicable in a prosecutorial misconduct case! *1435The defendant in a criminal case has no control over the prosecutor. The prosecutor is not his representative but rather his adversary. An inflammatory or otherwise improper argument should never be a tactical decision. Finally, it is the state and no one else who is responsible for the error in question.
Furthermore, an alleged error in an ineffective assistance contest is easier to evaluate. The error has to do, for example, with the failure to investigate properly when such investigation would have uncovered favorable evidence. In such a situation a court can hear the evidence and assess its likely impact. Frequently, as well, the defendant knows what the complained of acts were and thus should have the burden of going forward and the burden of proof. In a prosecutorial misconduct case challenging the effect of a closing argument on a jury, the effects are subtle and difficult to evaluate and relate to the outcome of the case.
C. Prosecutorial Misconduct Revisited
Any evaluation of a claim of prosecutorial misconduct is a two part inquiry. First comes an evaluation of the argument itself, i.e. did it render the trial or sentencing proceeding fundamentally unfair. If so, then comes the harmless error inquiry, i.e. can the state demonstrate beyond a reasonable doubt that “there is no reasonable possibility that the [argument] might have contributed to the” result of the proceeding.
The proper test for determining whether the argument was constitutionally improper should be: (1) was the prosecutor’s argument an unintentional breach of the proper boundaries, or designed to induce a decision that was not based on a rational assessment of the evidence; (2) did the argument or type of argument tend to mislead or divert the jury; (3) was the remark^) an isolated occurrence or were improper comments extensive throughout the argument; and (4) what was the nature of the decision to be made by the jury.5
Inquiring into the prosecutor’s “design” is not necessarily a subjective test but one based upon an examination of the comments made in the context of the trial. This is a familiar principle in the law, i.e., a person intends the natural consequences of their acts.
The “tendency to mislead or divert” factor focuses on the inflammatory or improper nature of the particular statement used. For example: Was the statement based on facts not in the record? Was the prosecutor vouching for witnesses? Did the statement relate to an issue before the jury? And, what was the force of those statements in the particular case?
The factor of whether the remarks were isolated or extensive is concerned not necessarily with the quality of the excessive argument but with the quantity of improper statements. Finally, the nature of the decision to be made by the jury should be considered.
Is the jury’s decision chiefly influenced by subjective or objective factors? Obviously, an improper prosecutorial argument is more apt to affect the jury’s decision in a subjective decision than in an objective one. A verdict of guilt or innocence is based principally upon more objective factors. Accordingly, a jury is usually instructed not to be influenced by subjective factors, e.g. sympathy for the victim or the defendant, in making the guilt/innocence determination. The penalty phase of a capital trial is different in this regard, however. The issue is not whether the defendant was the culprit, but a far different determination of whether he should be executed. The jury’s role in a capital sentencing proceeding is to focus on the nature of the crime, and the aggravating and mitigating circumstances in the particular individual’s case being tried. The sentencing phase is not a twelve person referendum on whether the death penalty should or should not be imposed *1436generally, which was the thrust and intent of the prosecutor’s argument in this case.6
The test stated above strikes a constitutionally appropriate balance between the conflicting interests at stake. The defendant has a right to a rational decision made by the jury regardless of the strength of the evidence against him. The prosecution has an interest in securing convictions and death penalties, but not in appealing to jurors’ fears and prejudices through inflammatory arguments in order to secure convictions or death sentences. This is even more so because of the weight that a prosecutors’ statements have with the jury. Statements that are reasonably intended to appeal to the juror’s prejudices, fears, etc. should be presumed to do so unless the state can demonstrate otherwise. The judicial system has an interest in making sure that convictions and sentences are based upon a rational assessment of the presented evidence and not through a process distorted by prosecutorial excess. Fairness, as well as the appearance of fairness, is essential to the Fourteenth Amendment requirement of due process of law.
If the prosecutor makes improper arguments intended to preclude a decision based upon a rational assessment of the evidence, then the defendant has suffered prejudice rendering the trial or sentencing hearing fundamentally unfair and making it impossible to determine if the jury’s decision was based on the evidence and the law, or the prejudice engendered by the prosecutor. The determination is made not by looking at isolated remarks, but by the argument as a whole in the context of the trial.
If it is determined that the proceeding was fundamentally unfair, then comes the harmless error inquiry. The use by the majority of the Strickland prejudice test in this context merges the harmless error inquiry into the evaluation of whether the argument was constitutionally improper. The majority states: “Thus, errors, even serious errors, will not require reversal on a petition for writ of habeas corpus unless their absence would have, in reasonable probability changed the outcome.” Majority Opinion at 1401.
While in a harmless error test the strength of the evidence is a consideration7 that determination and inquiry is made after the constitutional issue is decided. The majority opinion, engrafts this determination into the test of whether there has been a violation of fundamental fairness. “However, neither the fact that the crime was vile nor the amount of evidence against the defendant justifies vituperative argument by the prosecutor. Indeed, the greater the weight of the evidence and the more reprehensible the crime, the less necessity or justification is there for the prosecutor to inflame the jury.” Cronnon v. Alabama, supra, 587 F.2d at 253 (Rubin, J., dissenting).
Further, the Strickland test shifts the burden of proof to the victim of the alleged misconduct rather than to the beneficiary of the error, the prosecution. This is contrary to the Supreme Court’s decision in Chapman v. California, as quoted at 1434, supra. The beneficiary and perpetrator of the error should have the burden of proof. It is fundamentally unfair for the State to assert that although its agent, the prosecutor, breached all rules of court and law governing an argument, the defendant sentenced to die must prove he would have *1437received a life sentence but for the argument.
The Strickland test, by its nature, gives the cloak of constitutional approval to many improper prosecutorial actions. Although the result may in some cases be the same, it is different to say that no constitutional violation occurred, than it is to say that while there was a constitutional violation in this particular case it was harmless error. The first gives a stamp of acquiescence to the government action, the second disapproves of those actions but for certain legal and policy considerations finds that the error, although present, does not warrant reversal in that particular case. As one judge has said,
“This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that it would not reverse. Such an attitude of helpless piety is, I think undesirable____ If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it____ Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.” United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.) (Frank, J., dissenting), cert. denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946).
This is a danger with harmless error as well, but not to the same degree. The Supreme Court recognized the danger in Chapman, supra, when it said, “harmless error can work very unfair and mischievous results when forbidden argument or evidence finds its way into a trial.” ' 386 U.S. at 22, 87 S.Ct. at 827. This statement indicates that harmless error rule should be reluctantly used in a prosecutorial misconduct case. By necessity, it negates the use of the “prejudice” test adopted by the majority. Unfortunately, using the majority’s approach the opposite is true, i.e. there is little room for a harmless error inquiry.
The Strickland test of “reasonable probability that the result of the proceeding would have been different”, adopted by the majority, rules out the “reasonable possibility that the error might have contributed to the” result language in Fahy. The language in Strickland is so stringent that it severely limits a harmless error inquiry. Fahy and Chapman forbid such a limitation.
Finally, “effect on the proceedings” will miss the point in many cases. If a prosecutor has a strong case then he is given wider latitude to use improper arguments.8 As the likelihood that the person will be sentenced to death increases, the likelihood that an egregious argument will warrant reversal decreases. Such a test does not hold the prosecution to a high enough standard. An argument by a prosecutor should be determined to be fundamentally unfair vel non without regard to the strength of the evidence against the accused either in the guilt/innocence phase or, as here, in the penalty phase of trial. The constitutional limitations on a prosecutor’s conduct should not fluctuate with the strength of the case. To do so is to rob the term “fundamental fairness” of any meaningful content.9
In the final analysis, an argument that has been determined to be fundamentally *1438unfair in the penalty phase of a capital trial can seldom be harmless error. Due to the subjective nature of the life/death decision and the fact that no matter how “aggravated” the crime may be, the jury always has the option of returning a sentence of life imprisonment, a reviewing court can seldom say that there is no possibility that an unfair closing argument influenced the death penalty that was imposed. If the argument exceeded constitutional limitations, then the writ must in most cases issue.
With this two part inquiry in mind, an assessment of the prosecutor’s argument in this case is appropriate.
III. The Closing Argument in Context
Considered as a whole, the argument in the penalty phase of Brooks’ trial, from beginning to end, exceeded the outermost limits of a constitutionally permissible closing argument.
At the outset it should be emphasized again that the argument challenged in this case occurred at the penalty phase of Brook’s capital trial. As the Supreme Court has noted, the consensus of their capital cases has been that “where discretion is afforded a sentencing body in a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited.” Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983). The purpose of the penalty phase is to determine if death or life is the appropriate punishment in that case. Lockett v. Ohio, 438 U.S. 586, 601, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
Improper argument by the prosecutor at the penalty phase “interjects irrelevant considerations into the fact finding process, diverting the jury's attention” from its proper focus, the characteristics of the individual and the offense. See Beck v. Alabama, 447 U.S. 625, 644, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Thus, such arguments increase the likelihood that a sentence of death will be arbitrary and capricious. Eliminating the risk of sentences imposed due to passion or prejudice has been the main thrust of the Supreme Court’s death penalty decisions. Zant, supra, 103 S.Ct. at 2742. Therefore, any claim of prosecutorial misconduct in the penalty phase of a capital trial must be examined with these considerations in mind.
Shortly after he began his closing argument, the district attorney gave in no uncertain terms his own views on capital punishment:
•Let me tell you here at the outset that I am for capital punishment. If you’ve got to take sides, I take the side of capital punishment. I believe in the death penalty. I think it is necessary.
The prosecutor’s personal opinions on capital punishment, as well as any other matter, are obviously irrelevant. See United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978). He then went on to support this view, especially the view that capital punishment deters, through non-documented assertions of matters that were not in the record:
I can tell you this; the last person in Georgia was electrocuted in 1964, and since that date crime has increased year by year, time after time, every time the statistics come out we have an increase in crime. We didn’t have that when we had capital punishment, we didn’t have this kind of murder, the kind of crimes you’ve heard about this week, when we had capital punishment, if they were they were very seldom, we heard about them somewhere else, but not around here.
These remarks were without any evidentiary support in the record. Furthermore, they misleadingly suggested to the jury that there is reliable evidence demonstrating the correlation between capital punishment and reduction in violent crime. As the Supreme Court noted in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) this assertion cannot be verified empirically. 428 U.S. at 184-85. Additionally, this statement is not relevant to either the character or the defendant or the circumstances of the crime, the relevant factors in a capital sentencing proceeding. The statements therefore diverted the jury from their proper focus. See Lockett v. *1439Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
Prom this starting point the district attorney then proceeded to compare the qualities of the victim and her worth to her family to that of the petitioner.
Now, lets think about this, you have looked at William Anthony Brooks all week, he has been here been surrounded by his lawyers and you’ve seen him. Let’s talk a minute about the person who is not here, about Carol Jeannine Galloway. What kind of person was she? We know that she was a pretty young lady, a beautiful young lady. We know that she was about 23 years old, she was not married, that she still lived with her mother and father, and we know that she was a person of high morals. We know that she was a considerate person. She went out picking up the garbage can to save her mother or father from having to do that. We know that she was a thoughtful person, she was going to treat her friend to breakfast before her friend left town.
So, when Mr. Araguel, or Mr. Sanders, whoever makes the argument on that side starts talking about William Brooks’ life, and about William Brooks, about what a young person he is, his family, think about the Galloway family. Think about Carol Jeannine Galloway, who is not here in the courtroom today and who will never be here again.
Now, they are going to tell you, don’t take William Brooks’ life, locking him up is enough, don’t put death on him, don’t make his family go through with that. What has the Galloway family gone through. What have they gone through? Next week when it is Thanksgiving, and they are sitting around the table, Carol Jeannine won't be there, and never will be there again.
Again, these statements urged the jury to vote for the death penalty not because of any factor relating to Mr. Brooks’ character or the facts of the offense but because Ms. Galloway was a thoughtful, considerate person who would be deeply missed by her family. This call for the death penalty due to the prominence of the victim in the community was not only irrelevant, but prejudicial to the defendant because it injected an arbitrary factor in the sentencing processing that could only mislead and divert the jury from its proper focus.10 The jury was essentially being told to compare the relative worth of the victim and the defendant to society, i.e. the victim was more worthy and she was dead. The less worthy defendant, therefore, should also die.
Next, the prosecutor urged the jury that a sentence of death was appropriate in this case because his office had determined that this was one of the few murder cases for which the death penalty was the appropriate punishment. Stepping aside as the prosecuting attorney, he assumed what was in fact, the role of an expert witness:
Now, we don’t ask for the death penalty — I have been district attorney for seven and one-half years, and we don’t take this business of asking for the death penalty lightly. We don’t come up here on every murder case that we try and say, “give the man the electric chair”. In the seven and one-half years that I have been a district attorney, I believe that we have asked for it less than a dozen times, I think it is nearer eight or nine, but I know that it is less than twelve.
The prosecutor then described the process of how his office determined that a sentence of death was appropriate in this case. “Now what do we consider before we come to you and ask you to impose the death *1440penalty? Well one of the things we consider are the facts of the case that is being tried.” He then went on to describe the offense as follows:
... [H]e turns around and shoots her down like you would a dog, a stray dog. And, he didn’t kill her, then, he said she was screaming and he shot her, and she fell, and was still trying to scream so he said in his statement, but the sound wouldn’t come out and she bled to death, very slowly, drip by drip, drop by drop ... We wouldn’t do that, as I said, to a stray animal that you wanted to get rid of, you wouldn’t treat it like that.
The prosecutor went on to explain that, “another thing we consider before we come to you and ask for the death penalty is the proof in the case,” he concluded by expressing his opinion that “I’m sure you agree with what I said this morning that the evidence against William Brooks is overwhelming ...” He then told the jury that “another thing that we consider before we ask for the death penalty, ... is rehabilitation,” and that he had concluded that “there is no chance that William Anthony Brooks will ever be rehabilitated.”
This series of statements was improper because it informed the jury that the district attorney’s office, state officials with much experience in making these decisions, after reviewing all of the facts, had decided that William Brooks was one of the less than a dozen people found deserving of death in the last seven and one-half years. Instead of urging the jury to consider all relevant facts before making its choice, the district attorney essentially told the jury that the choice had already been made by those who are experts in the field.11 These remarks could only have been intended to reduce, and could only have had the effect of reducing in the jurors minds, the burden imposed by Georgia law on them, i.e., that they alone could choose between the sentence of life imprisonment or the death penalty.
In this same manner, the district attorney continued to urge the jury that it should not feel responsible if it voted for the death penalty.
Now, I am sure that another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it is rough, it would be hard for me to do. Can I take somebody’s life? Well, the truth of the matter is you’re not taking his life, you are not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they are not taking his life; the recorders court judge who heard the evidence in the prelimi- . nary hearing, are you going to say that he is responsible for taking his life? Of course not. How about the grand jury who listened to the evidence and indicted him for murder; are the grand jurors responsible for his life, can you say they are about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we are here now asking you to bring back the death penalty, do we feel responsible? I don’t — I don’t think anybody in my office does.
*1441How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that’s when he took his own life. He’s a grown man, and he knew what he was doing.
In Georgia, the jury is the final sentencing authority in a capital case. Arguments which trivialize this responsibility are inconsistent with the jury’s role in a death case and are therefore improper.12
Next the prosecutor suggested that Mr. Brooks should be sentenced to death for exercising his right to stand trial.
Now I’m sure the argument is going to be made, either by Mr. Araguel, or maybe some member of the jury that, “Well the death penalty is bad, maybe we can do something else.” Well let me say this to you; I told you I believe in it. William Brooks believes in the death penalty, he believes in executing people. He carried Carol Jeannine Galloway down in those woods out of the sight of everybody.
Carol Jeannine Galloway did not have a battery of lawyers around her, she didn’t have a judge sitting there ruling on the evidence, she didn’t get twenty strikes when the jury was selected, she didn’t have any courtroom with cameras so that the whole record could see that she got a fair trial.
He just stepped back at point-blank range within three feet of her and killed her, shot her. So, he believes in the death penalty, he executed her, a lot more horrible than the electric chair which is a quick ...
These statements clearly urged the jury to punish Brooks for exercising his constitutional rights as well as his own “belief” in the death penalty. There also was the unmistakable implication that the system coddles criminals, at the expense of law abiding citizens, by giving them procedural protections. In the context of the numerous other comments made by the prosecutor that were an intentional effort to procure a decision that was not based on a rational assessment of the evidence, they can only be seen as improper. See, e.g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (exercise of fifth amendment right to remain silent cannot be commented upon by prosecutor).
The prosecutor then urged the jury to consider the safety of prison guards and their families as well as other prisoners:
So, you put him in prison. How about those guards who have to guard him? They have families depending on them, how do you know that he won't kill one of them?
And, even worse than that, how about some young prisoner, or some other prisoner who is in prison with him, who is there trying to make his time, trying to be rehabilitated so he can go back to his family, back to society? He could kill him, kill a fellow prisoner.
He then went on to suggest that Mr. Brooks might escape and kill one of their loved ones:
How about if he escapes? And I’m sure they are going to say, “Oh, he couldn’t escape”. But, it was the early part of this year, or last year, I don’t recall now, that a man escaped from a prison in Tennessee that no one had ever escaped from before. So, you always have the possibility that he might escape and might be out on the streets, and who knows who it will be next time, whose daughter will it be next time? It was Mrs. Galloway’s daughter this time, Bobby Murray’s girl friend? Whose girl friend or daughter will it be next time if he is out?
These remarks go far beyond the proper focus of a capital sentencing hearing. They serve only to fuel a jury’s speculation about irrelevant matters, i.e. prison security and administration. In that respect, they divert the jury from the real task before them. Furthermore, these comments were not intended to help the jury make a rational assessment of the evidence. Rather, they were intended to in*1442fluence them to make a decision based on fear; either fear for the life of the guards or prisoners, or fear for their own life or those of their families.
The prosecutor then appealed to the jury as taxpayers to impose death to save themselves the cost of housing and feeding another prisoner:
This is — I’m going to say this, and maybe you don’t agree with me, and I’m sure that I will be accused of being materialistic in saying it, but why should — if he’s given life, it costs money to keep him, thousands of dollars a year to keep a prisoner housed, feed and clothed, and medical care, why should the taxpayers, and that’s you folks, all of us, why should the taxpayers have to keep somebody like William Brooks the rest of his life, ... why should we?
This argument like so many of the previous statements offered by the district attorney was completely irrelevant to the offense and to the offender. However, they provided a reason for the jury to vote for the death penalty, i.e. to ease their tax burdens. Such arguments are indefensible.13
The district attorney next turned to a line of discussion that is most easily classified as “The War on Crime” argument.
Let me say this to you, during my lifetime this country has been in three wars, each war we have taken our young men down to the age of 17, we’ve trained them, we’ve put guns in their hands, we’ve taught them how to kill the enemy and we’ve sent them overseas and they have killed other human beings who are enemies of our country, and when they did a good job of killing them, we decorated them and gave them citations, praised them for it. Well, I say to you that we are in a war again in this country, except it is not a foreign nation, its against the criminal element in this country, that’s who we are at war with, and they are winning the war, is what’s so bad, and if you don’t believe they are winning, just look about you. You don’t dare get out on the streets at night and walk around, you don’t dare leave your house unlocked. In fact, most everybody I know has added more locks to their house, and burglar bars, and burglar alarms. And, we’ve got a man here in town who makes a living with guard dogs, and, if you go to the hospital to see some of your friends, you’ve got to get by a security guard up there, and you see security guards everywhere. Why are they there? Because of the criminal element in this country. It’s winning. And, if we can send a seventeen year old young man overseas to kill an enemy soldier, is it asking too much to ask you to go back and vote for the death penalty in this case against William Brooks, and I submit to you that he is an enemy, and he’s a member of the criminal element, and he’s our enemy, and he’s a enemy of the law abiding citizens and the people who want to live peacefully in this country, and who want to be secure in their persons and their homes.
You know, a lot of times you see people on the street, and they are always stopping us and saying, “You know, something has got to be done about this crime wave, what can we do, Mr. Whisnant: What can we do, Mr. Smith, we’ve got to do something about it.” Well, you have an opportunity to do something about it right now. The police have investigated this case, we’ve prosecuted it the best we know how, and you are in the position of Harry Truman, who had on his desk a sign that said, “The buck stops here.” The buck stops with you today. And you can do something about it. You can bring back the death penalty and you can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muscogee County, and you commit a crime, and it’s one of those crimes that is punishable by death, ... you are going to get the electric chair, that’s what you can do. And I believe that that will stop some of the crime____ And, I submit to you that William Brooks is a cancer on the body of society, and if we’re going to save society and save civilization, then we’ve got to remove them from society.
These remarks were clearly intended by the district attorney to place Mr. Brooks within a faceless undifferentiated mass of criminals, “a cancer on the body of society”. Therefore, they were only intended to eliminate the possibility that the jury would base its decision upon the character of the individual defendant, Brooks, and the nature of his crime. The prosecutor urged *1443the death penalty in order to send a message to the criminal element. It was further indicated to the jury that the only way they could save themselves in the ever escalating war on crime was to return a verdict of death in this case.14
Finally, just before resting, the prosecutor apparently appealed to the all white jury on racial grounds. Recounting a portion of Mr. Brooks’ statement to the police, the district attorney remarked:
... he was just walking along with a pistol in his pocket and decided, “well, I’ll make a hustle,” to use their language, his language.
Despite the majority’s contention, this remark can only be seen as a racial reference. Such remarks are clearly improper, see United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir.1973), and were an attempt to subtly highlight the race of the defendant as a factor for the jury’s decision. Such an argument has no place in any phase of a capital trial. See Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (race of defendant is improper as an aggravating circumstance).
IV. Conclusion
Considering the argument as a whole, one inescapably concludes that the prosecutor’s argument rendered the sentencing hearing fundamentally unfair. From beginning to end it was clearly designed not to suggest that the jury make a rational assessment of the evidence to or not to impose the death penalty but to render a decision based upon irrelevant and inflammatory suggestions appealing to their collective fears and biases. This is not a situation where the prosecutor made one potentially inflammatory remark in the course of an otherwise proper argument. Rather, this argument proceeded from one improper comment and statement to another. The statements consistently injected highly misleading and/or improper considerations into the life/death decision before the jury. Any one, two, or more of these statements may not have rendered the penalty phase fundamentally unfair. The portions of the argument discussed in the previous section of this opinion constitute virtually the whole substance of the district attorney’s statement at the penalty phase. (See the appendix to this opinion for the closing argument in full. The objectionable material comprises approximately eight of fourteen pages of the transcript.) This argument, therefore, could literally serve as a handbook on what prosecutors should not do. Furthermore, this argument occurred at the penalty phase of the trial. The life/death decision, because of its focus on the character of the defendant and thus its subjective nature, is easier to distort through misleading, improper and inflammatory statements. To hold this argument to be within the bounds of fundamental fairness is to concede that virtually any argument, no matter how vitriolic is permissible.
Finally, the constitutional error in this argument was not harmless.15 The state has not shown beyond a reasonable doubt that the egregious argument had no effect on the sentence. The cumulative weight of the numerous improper statements made by the prosecutor here may well have tipped the scales in favor of the death penalty; certainly it cannot be said: there is “no reasonable possibility that the [argument] might have contributed to the” result.
APPENDIX
Closing Argument of District Attorney at Sentencing Phase
(Trial Transcript at 859-873)
MR. WHISNANT: May it please the Court, and you, ladies and gentlemen of the *1444jury, I thank you again for your patience, and this is the last stage of the trial, this is the last time you’ll have to hear me or Mr. Araguel talk to you. I know that you’re tired of hearing us. But, this is an important part of the trial, just as important as the guilt or innocence stage of the trial, and we ask you to treat it as just as important as the first phase of the trial.
By your verdict, or at noon today, you have found this defendant guilty of murder, kidnapping, armed robbery and rape, and we’re at the stage of the trial now where we fix his punishment, you fix his punishment, on the murder charge.
Punishment has a two-fold purpose, one purpose is to punish the guilty offender; the other purpose is to deter others of a like mind committing the same type of crime. In other words, if somebody else is thinking about murder, if you punish this man it’s supposed to deter the other person from committing it. So that’s the two-fold purpose of punishment.
Now, let me talk about the first phase of it, to punish the guilty. Punishment is supposed to be adequate and appropriate. In other words, the punishment is supposed to fit the crime, and the crime in this case is murder. He took the life of a person. So, you’ve got to decide what kind of punishment fits that crime, whether he gets life imprisonment, or death in the electric chair. And, we say in these circumstances that the only appropriate punishment is death in the electric chair. We’re going to have some more to say about that before I sit down.
Now, I know you’ve heard discussions about the death penalty, you were asked numerous questions about it last Tuesday when we were trying to select a jury and you were prospective jurors. Let me tell you here at the outset that I am for capital punishment. If you’ve got to take sides, I take the side of capital punishment. I believe in the death penalty. I think it’s necessary. And some people, I’m sure Mr. Araguel is going to tell you that there is no proof that the death penalty deters crime, you can’t prove it. But, I can tell you this; the last person in Georgia was electrocuted in 1964, and since that date, crime has increased year by year, time after time, everytime the statistics come out, we have an increase in crime rate. We didn't have that when we had capital punishment. We didn’t have this kind of murder, these kind of crimes you’ve heard about here this week, when we had capital punishment, if they were they were very seldom, we heard about them somewhere else, but not around here.
Now, let’s think about this, you have looked at William Anthony Brooks all week, he’s been here and been surrounded by his lawyers, and you’ve seen him. Let’s talk a minute about the person who is not here, about Carol Jeannine Galloway. What kind of person was she? We know that she was a pretty young lady, a beautiful young lady. We know that she was about twenty-three years old, she was not married, that she still lived with her mother and father, and we know that she was a person of high morals. We know that she was a considerate person. She went out picking up the garbage can to save her mother or father from having to do that. We know that she was a thoughtful person, she was going to treat her friend to breakfast before her friend left town.
So, when Mr. Araguel, or Mr. Sanders, whoever makes the argument on that side, starts talking about William Brooks’ life, and about William Brooks, about what a young person he is, his family, think about the Galloway family. And think about Carol Jeannine Galloway, who is not here in the Courtroom today, and who will never be here again.
Now, they’re going to tell you, don’t take William Brooks’ life, locking him up is enough, don’t put death on him, don’t make his family go through with that. What has the Galloway family gone through, what have they gone through? Next week when it’s Thanksgiving, and they are sitting around the table, Carol Jeannine won’t be there, and never will be there again.
Now, we don’t ask for the death penalty —I’ve been District Attorney for seven and a half years, and we don’t take this business of asking for the death penalty lightly. We don’t come up here on every murder case that we try and say, “Give the man the electric chair.” In the seven and a half years I’ve been District Attorney, I believe we’ve only asked for it less than a dozen times, I think it’s nearer eight or nine, but I know it’s less than twelve. So, we take it seriously. We ask you to take it seriously. It is a serious matter.
Now, what do we consider before we come to you and ask you to impose the death penalty? Well, one of the things that we consider are the facts of the case *1445that’s being tried. Was it a horrible crime that was committed? And let’s stop there and look at the facts of this case, and look at what type of crime this was. Here was Carol Jeannine Galloway on a summer Friday morning, getting ready to go have breakfast with her friend, she sees a garbage can outside there and decides, “Well, I’ll pick it up and put it up for my mother so she won’t have to do it, or my father,” whoever was going to pick it up. And, along comes William Anthony Brooks, probably never seen her before and didn’t know her, but he had that pistol in his pocket, he puts it on her, makes her get into the car, drives her out there, takes her down into the woods, makes her take her clothes off, rapes her, and then after he’s satisfied his lust, what does he do; he turns around and shoots her down like you would a dog, a stray dog. And, he didn’t kill her then, he said she was screaming and he shot her, and she fell, and was still trying to scream, so he said in his statement, but the sound wouldn’t come out, and she bled to death, very slowly, drip by drip, drop by drop. I pray that she was unconscious. That’s the kind of condition he left that lady in. You wouldn’t do that, as I said, to a stray animal that you wanted to get rid of, you wouldn’t treat it like that. But, that’s what William Brooks did to Carol Jeannine Galloway. If you sat down and tried to think up a horrible crime, could you think of anything more horrible than what you’ve heard here this week, that this defendant committed on this young lady? Could you think of anything more horrible?
All right, and another thing that we consider before we come to you and ask for the death penalty is the proof in the case, not that we just prove him guilty beyond a reasonable doubt and you find him guilty, but I mean, overwhelming proof, and you have that in this case. You’ve already found him guilty, and I’m sure you agree with what I said this morning that the evidence in this case against William Brooks is overwhelming, he did it, there’s no question about it, and it was a horrible crime.
And, another thing that we consider before we ask for the death penalty, and I’m sure you’re going to hear this from the defense, is rehabilitation. Is there any chance that the defendant might be rehabilitated? And we thought about that in this case. And, I submit to you that there’s no chance that William Anthony Brooks will ever be rehabilitated. Let’s look at what he did. He’s been in trouble since he was a child. His own sisters told you that he was a car thief when he was a young child. And, they talked to you about him being beaten by his stepfather, but they never did say what his stepfather was beating him for, maybe he needed it. There’s nothing wrong with whipping a child, some of them you have to whip harder than others. And there’s been children who have been abused and beaten, but they don’t turn to a life of crime on account of it. Goodness sakes, I got whippings when I was a child, I thought my daddy used to beat me, and he did, but that doesn’t give me an excuse to go out and commit a crime. The fact that he got a beating when he was ten or eleven years old, does that give him the right to stop at somebody’s house and put a gun in their back, and drive them down to the woods, strip them and rape them, and then after his lust is satisfied, murder them? That’s what they want you to buy, that’s what they want you to accept. Just because he got some severe whippings when he was a child, that you ought to forgive him for that, or that he ought to have a right to do something like that. Our society and our law was never designed to accept anything like that, and it’s ridiculous, and I don’t believe that you’ll accept it, I don’t believe that you’ll buy it.
Now, I’m sure they’re going to say, “He’s a young person, just twenty-two years old, let him live.” Well, he’s no child, he’s not fifteen, he’s a grown man. Now, you can vote when you’re eighteen years old, you can go in and buy a beer when you’re eighteen years old, you can serve on the juries, have property in your name when you’re eighteen. He’s four years beyond that, he’s a grown, mature man.
And, another thing, he is young, and if you look around and I’m sure you have, that’s the group that’s committing crimes in this country, are the young people, and if you don’t punish young people, then you’re not punishing the people who are committing the crimes. He’s a mature man, and he doesn’t deserve any credit or any sympathy from you just because he’s twenty-two years old.
Now, I’m sure another question that might be going through your mind at this time is, when I get back to that jury room, and we have to vote, and I vote to take somebody’s life, can I do it? I know it’s *1446rough, it would be hard for me to do. Can I take somebody’s life? Well, the truth of the matter is, you’re not taking his life, you’re not pulling the switch in the electric chair; the police who investigated this case and who apprehended William Brooks, they’re not taking his life; the Recorder’s Court Judge who heard the evidence in the preliminary hearing, are you going to say he’s responsible for taking his life? Of course not. How about the Grand Jury who listened to the evidence and indicted him for murder; are the Grand Jurors responsible for his life, can you say they’re about to take his life? Of course not. How about me and my staff, we put the case together and we prosecuted him, and we’re here now asking you to bring back the death penalty, do we feel responsible? I don’t. I don’t think anybody in my office does.
How about the man, if he’s electrocuted, who actually pulls the switch, is he responsible for taking his life? Of course not. The person who is responsible for his life is William Brooks himself, and if the switch is pulled and he’s put to death, he pulled the switch the morning that he was walking along Saint Mary’s Road when he put the gun in the back of Carol Jeannine Galloway and kidnapped her, that’s when he took his own life. He’s a grown man, and he knew what he was doing.
Now, I’m sure that argument is going to be made, either by Mr. Araguel, or maybe some member of the jury that, “Well, the death penalty is bad, maybe we can do something else.” Well, let me say this to you; I told you I believe in it. William Brooks believes in the death penalty, he believes in executing people. He carried Carol Jeannine Galloway down in those woods out of sight of everybody. Carol Jeannine Galloway didn’t have a battery of lawyers around her, she didn’t have a judge sitting there ruling on evidence, she didn’t get twenty strikes when the jury was selected, she didn’t have any Courtroom with cameras so that the whole world could see that she got a fair trial. He just stepped back at point-blank range within three feet of her and killed her, shot her. So, he believes in the death penalty, he executed her, a lot more horrible than the electric chair which is a quick thing, brings death on real quickly. She lay there perhaps an hour and a half or two hours before she bled to death.
And then, somebody is going to say, “Can we sympathize, what about sympathy, can’t we be sympathetic toward him?” The only answer to that is show him the same type of sympathy that he showed Carol Jeannine Galloway, the same sympathy that he showed her, left her laying there, after he had robbed her, taken her car, and satisfied his lust, he still killed her. Not one spark of sympathy, not one bit of sympathy did he show for her. His only thought then was to get away, and he did get away. He got his shoes muddy, and went and bought him some new shoes with the money he took off her. No remorse at all. So, he has no sympathy due him, and we ask you not to show him any.
All right, I’m sure that the defense is going to make this argument to you, we don’t have to take his life, you don’t have to take his life, just lock him up, put him away somewhere where he’ll never be in society again, where he’ll never harm anybody again, that’s punishment enough, spare his life, just put him away forever. Let’s think about that. Going back to what I said a while ago, the first thing is you’ve got to give appropriate punishment to fit the crime, and letting him live is not appropriate for the crimes that he committed, that's the first thing. And the next thing is, he has demonstrated that he’s a killer. Anybody who can kill a poor defenseless person, or murder a poor defenseless person like he did will kill again. He doesn’t care, life doesn’t mean anything to him. So, you put him in prison. How about those guards that have to guard him? They have families depending on them, how do you know he won’t kill one of them?
And, even worse than that, how about some young prisoner, or some other prisoner who is in prison with him, who is there trying to make his time, trying to be rehabilitated so he can go back to his family, back to society? He could kill him, kill a fellow prisoner.
How about if he escapes? And, I’m sure they’re going to say, “Oh, he couldn’t escape.” But, it was the early part of this year, or late last year, I don’t recall now, that a man escaped from a prison in Tennessee that no one had ever escaped from before. So, you’ve always got the possibility that he might escape and be out on the streets, and who knows who it will be next time, whose daughter will it be next time? It was Mrs. Galloway’s daughter this time, *1447Bobby Murray’s girl friend; whose girl friend or daughter will it be next time if he’s out?
And this is — I’m going to say this, and maybe you don’t agree with me, and I’m sure I’ll be accused of being materialistic in saying it, but why should — if he’s given life, it costs money to keep him, thousands of dollars a year to keep a prisoner housed, fed and clothed, and medical care, why should the taxpayers, and that’s you folks, all of us, why should the taxpayers have to keep up somebody like William Brooks the rest of his life, when he’s done what he's done? Why should we?
Let me say this to you, during my lifetime this country has been in three wars, each war we’ve taken our young men down to the age of seventeen, we’ve trained them, we’ve put guns in their hands, we’ve taught them how to kill the enemy and we’ve sent them overseas, and they have killed other human beings who were enemies of our country, and when they did a good job of killing them, we decorated them and gave them citations, praised them for it.
Well, I say to you that we’re in a war again in this country, except it’s not a foreign nation, it’s against the criminal element in this country, that’s who we are at war with, and they’re winning the war, is what’s so bad, and if you don’t believe they’re winning, just look about you. You don’t dare get out on the streets at night and walk around, you don’t dare leave your house unlocked. In fact, most everybody I know has added more locks to their house, and burglar bars, and burglar alarms. And, we’ve got a man here in town who makes a living with guard dogs. And, if you go to the hospital to see some of your friends, you’ve got to get by a security place up there, and you see security guards everywhere. Why are they there? Because of the criminal element in this country. It’s winning.
And, if we can send a 17-year-old young man overseas to kill an enemy soldier, is it asking too much to ask you to go back and vote for the death penalty in this case against William Brooks, and I submit to you that he’s an enemy, and he’s a member of the criminal element, and he’s our enemy, and he’s an enemy of the law-abiding citizens and the people who want to live peacefully in this country, and who want to be secure in their persons and their homes.
You know, lot of times you see people on the street, and they are always stopping us and saying, “You know, something’s got to be done about this crime wave, what can we do, Mr. Whisnant; what can we do, Mr. Smith, we’ve got to do something about it.” Well, you have an opportunity to do something about it right now. The police have investigated the case, we’ve prosecuted it the best we know how, and you’re in the position of Harry Truman, who had on his desk a sign that said, “The buck stops here.” The buck stops with you today. And you can do something about it. You can bring back the death penalty and you can tell William Brooks, and you can tell every other criminal like him, that if you come to Columbus and Muscogee County, and you commit a crime, and it’s one of those crimes that’s punishable by death, and if the aggravating circumstances are there, you’re going to get the electric chair, that’s what you can do. And, I believe that will stop some of the crime.
Now, I know it’s going to be a hard decision, it’s not easy, it’s never easy. You can think about it this way when you get back there, you know from time to time if you were a surgeon, and you have people coming to you and maybe they have a cancer on their arm, and you look at it, and you say, “Well, the only way to save your life is to take your arm off,” and that’s bad to have to remove someone’s arm. Or maybe he’s got cancer of the eye, you have to take his eye out. Sure, that’s terrible, but it’s done because you save the rest of the body. And, I submit to you that William Brooks is a cancer on the body of society, and if we’re going to save society and save civilization, then we’ve got to remove them from society.
And, you know, it's one thing that people who oppose capital punishment they can’t dispute, if he’s put to death, he’ll never commit another crime, he’ll never kill anybody else, never rape anybody else.
Now, we ask you, and you’ll have written instructions going out with you, and in order to impose the death penalty, you must first find that while the murder was committed that he was engaged in certain other crimes, one is kidnapping, certainly he was engaged in that when he committed the murder, he carried her away from her home against her will. You recall that she had an appointment to eat breakfast, she had no idea she would be going anywhere other than to Shoney’s.
*1448The other thing is, he robbed her, committed an armed robbery, if you find that he committed the murder while he was engaged in either one or both of these two crimes that I’ve mentioned, the kidnapping or armed robbery, then you are authorized to impose the death penalty. And, let me talk to you about that a minute. Tuesday when we were examining you as prospective jurors, I asked each one of you the question, “Are you conscientiously opposed to the death penalty?” And every one of you on this jury said no, that you were not. I went one step further, and I asked you if you would consider the death penalty as one of the possible penalties, and would you vote for it if the facts and circumstances of this case authorized it, or warranted it. Of course, you didn’t know what the facts and circumstances were at that time. But, each one of you said you would. And, we’re asking you again to go back to the jury room and to deliberate, and to talk about the facts and circumstances of this case. Talk about how at eight-thirty in the morning she went out to the edge of the yard in broad open daylight, and how he was just walking along with a pistol in his pocket, and decided, “Well, I’ll make a hustle,” to use their language, his language. And then after he did that, “Well, I’ll rape her,” so he carried her down in the woods, and raped her, and shot her, and left her there bleeding to death. Those are the facts and circumstances we were talking about Tuesday, when we asked you if, under certain circumstances, you would vote for the death penalty.
I believe you’ll vote for the death penalty. I want you to go out and discuss it, take all the time that you need, and we ask you to bring back a verdict on the punishment phase, and that he be put to death in the electric chair.
. Or as other courts have stated, a double standard does and should exist. DiCarlo v. United States, 6 F.2d 364, 368 (2d Cir.) cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925); Filler v. U.S., 258 F. 567, 572 (2d Cir.1919). For example, the prosecution, is required to disclose exculpatory information to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). These restraints are based not only on the prosecution’s duty to see that justice is done but also on a recognition that the power of the state is subject to abuse simply by virtue of its magnitude. Schwartz, Limits of Prosecutorial Vindictiveness, 69 Iowa L.Rev. 127, 159 (1983).
. This is an opinion apparently acquiesced in by Justice Charles Wcitner of the Georgia Supreme Court. In an article entitled "Vengeance" featured in the Atlanta Weekly Magazine on Sunday, January 6, 1985 he said:
But there is a sense or combat that sometimes intrudes to overpower a sense of balance [in cases involving horrible crimes], leading to what we call ‘prosecutorial overkill’. When six solid items would be amply sufficient to assure conviction, a prosecutor drags up 20, many of which arc questionable, thus inviting error and reversal. P. 13.
. As the Court said in Sinclair v. United States, 279 U.S. 749, 765, 49 S.Ct. 471, 73 L.Ed. 938 (1929); the "exercise of calm and informed judgment by its [jury’s] members is essential to the proper enforcement of law.”
. For an analysis of the applicability of the due process clause of the Fourteenth Amendment to the penalty phase of a capital trial, see Note, The Presumption of Life: A Starting Point For A Due Process Analysis of Capital Sentencing, 94 Yale LJ. 351 (1984).
. This test is very similar to the one used by the panel in Hance, supra, 696 F.2d at 950, n. 7. Additionally, these factors are not necessarily a checklist but tools that a court should use in evaluating any particular argument.
. The Georgia Supreme Court has emphasized that the sentencing phase not be influenced by passion, prejudice, or any other arbitrary factor given the nature of the decision. See O.C.G.A. § 17-10-35(c)(l) (On direct review the Georgia Supreme Court is to determine “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.”). See also Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22 (1980) (error for prosecutor to imply Georgia Supreme Court would approve death sentence in this case); Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977) (error to suggest that death sentences are reviewed by the trial judge and state supreme court and can thus be set aside).
. Because of the much more subjective nature of the life/death decision in a capital sentencing proceeding, strength of the evidence, even evidence supporting aggravating circumstances, is much less relevant than in a guilt/innocence determination.
. This is a very important consideration since, as it was noted above, supra p. 1432, n. 2, prosecutorial excess most frequently comes in cases where the crime is horrible and the evidence is strong. Thus, the majority's test has a heightened impact on our review of this type of claim.
. Although this is a difficult matter to quantify, I also believe that the majority's new standard can only be perceived as a "relaxing” of the standard that federal habeas courts use to review claims of prosecutorial misconduct in closing argument. As was noted earlier in this opinion, supra pp. 1432-33, excess in closing argument is not an isolated or rare event. A new test that weakens our inquiry into claims of improper argument will only encourage more “improper" comments by district attorneys.
. See for example Vela v. Estelle, 708 F.2d 954, 96Í5 (5th Cir.1983), cert. denied, sub nom. McKaskle v. Vela, — U.S. -, 104 S.Ct. 736, (1984) (district court's denial of habeas corpus relief reversed), "Faced with the task of assessing Vela’s punishment, the jury was informed that the man he had killed was kind, inoffensive, a star athlete, an usher in his church, a member of his choir, a social worker with underprivileged children of all races____ The truth of these statements is, of course, not in issue; the point is that they are irrelevant to the severity of Vela’s sentence and should not have been considered by the jury."
. The reasons such arguments are improper were stated in Hall v. United States, 419 F.2d 582, 587 (5th Cir.1969) (conviction reversal because of prosecutorial misconduct). "The remark is at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them.” (Citation omitted). "Or arguably, it may be construed to mean that as a pre-trial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it.” Additional reasons for the impropriety of this type of argument can be found in United States ex rel Clark v. Fike, 538 F.2d 750 (7th Cir.1976) cert. denied, 429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977) where the court held that it was wrong to suggest that a defendant is guilty because he is being prosecuted. In this situation it is wrong to suggest, as the prosecutor did, that the defendant deserves the death penalty just because the state is seeking it. Furthermore, the prosecutor failed to inform the jury that during four of his eight years as district attorney, 1972-1976, the constitutionality of Georgia's death penalty statute was very much in doubt.
. Similar arguments have been rejected by the Georgia Supreme Court as being inconsistent with the jury’s role. See e.g. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). "The jury is given the heavy burden of making the decision of whether the defendant will live or die. Comments about appellate safeguards on the death penalty suggest to the jury that they can pass the responsibility for the death penalty on to this court.” 240 Ga. at 146, 240 S.E.2d 37.
. For examples of state court decisions condemning such arguments as indefensible, see State v. Jordan, 294 Pac.2d 677 (Arz.1956); Commonwealth v. Clark, 185 Atl. 764 (Penn.1936).
. These comments had even more effect on the jury due to an atmosphere of fear in the Columbus community resulting from the unsolved rape and strangulation of four highly respected older white residents of Columbus by the "silk stocking strangler” in the two months preceding trial. See Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1942) ("At a time when passion and prejudice are heightened by emotions stired by participation in a great war, we do not doubt that these remarks ... were highly prejudicial.”). These remarks were improper and made even more so by the particular attitude and fears in Columbus at the time of Mr. Brooks' trial.
. In some cases in this procedural posture, it would be appropriate to remand the case to give the state the opportunity to meet its burden to show that the error was harmless. In this case, however, due to the egregiousness of the argument and the fact that this series of highly improper statements occurred at the penalty phase of Mr. Brooks’ capital trial, such a showing could not be made and a remand is not necessary.