specially concurring:
I concur in the judgment of the court because the instruction in this case violated the rule articulated by this circuit in Davis v. Kemp, 752 F.2d 1515 (11th Cir.1985) (en banc), and by the Supreme Court in Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). I reiterate my view that Davis, and now Franklin, represent new rules of law extending the case of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) to a set of facts with which that case was unconcerned. See Davis, 752 F.2d at 1522 (Hill, J., dissenting).
I also conclude that the error occasioned by this impermissible burden shifting instruction was not harmless, but I believe the analysis by which the court reaches that conclusion to be redundant. In determining whether an erroneous jury charge was harmless we look to see whether the jury’s conclusion of guilt could have been tainted by the error. Here we deal with intent; if intent is not a question of fact there is no possibility of harm. However, the reason intent is not at issue — whether it was uncontested or contested in the face of overwhelming evidence — is immaterial. For this reason I believe the majority’s two part formula is unnecessary and that the proper inquiry is simply whether intent was at issue in the case.
I further concur in section two of the majority’s opinion holding prosecutorial remarks made during the sentencing phase of Drake’s trial were fundamentally unfair in violation of Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). I do so because I agree that “[t]he only improper argument at Drake’s sentencing was the use of old *1468Georgia Supreme Court cases to suggest that mercy was an inappropriate consideration for Drake.” Majority Op. Slip op. at 4590, at 1460. In light of the extensive history of litigation on this single issue, both in state and federal courts, I consider it not entirely inappropriate to make the following observation.
In this country, trials are conducted through the adversarial system. When that system operates properly, one of the advocates is inhibited from overreaching by well-founded apprehension that the other advocate may, by skill, seize the overstatement and turn it upon its author. Had the adversarial system functioned properly when a prosecutor first resorted to quotations from Eberhart,1 the courts of Georgia would probably have heard that argument no more.2 The prosecutor, welding his case to the Eberhart opinion before a jury in a deep South Georgia county could have been made to regret that choice — for his case and, perhaps, his political future.
An adversary who had done his homework would have found that the Eberhart opinion was written by Georgia Supreme Court Justice Henry Kent McCay (pronounced, I am told, ‘McCoy’). Some jurors in a Georgia courtroom might have taken an interest in just how McCay reached the State’s Supreme Court, where he wrote denouncing the mercy he had observed in the character of Georgians.
McCay was a native of Pennsylvania who moved to Georgia after graduating from Princeton. Although he served in the Confederate Army, and was wounded, he displayed what an advocate might have termed opportunism when the conflict ended. Georgia was defeated. The political opportunities available at that time were not for those who stood by defeated and resentful comrades; they were found only in the military reconstructionist government. McCay lingered not long among his people. He embraced the reconstruction party, joining Georgians called “scalawags” 3 by their fellows. He was rewarded with an important post in the Constitutional Convention of 1868 in which no Georgian who did not join the perceived oppressors was permitted to serve. Indeed, McCay chaired that convention’s committee on the judiciary, and it was not unexpected that the new government’s first governor, Rufus Bullock, appointed McCay to the new Georgia Supreme Court.
In that high office McCay saw to the complete control of the military government over Georgia — and it was there that he wrote his opinion in Eberhart, deploring and denouncing mercy typical of the citizens of that state. It was of this Supreme Court that the Atlanta Constitution was later to say, “Judas Iscariot and Benedict Arnold would blush if compared” to these.
When defense counsel had completed that short history course, might not he have said something like
I am not surprised that these words on mercy were written by ‘Justice’ McCay who came to high office only with the backing of the merciless bayonets of the oppressor. But I am astounded and outraged that these words should be quoted here, gleefully, by our Solicitor, elected by the people of our county, as a state*1469ment of the sort of people you ought to be!”
Then he might say, softly, “remember the man the prosecutor quotes when you vote in the jury room — and perhaps, in our next election.”
The adversarial system did not, however, work to nip this prejudicial argument in the bud. It has, oddly, remained for a federal court to silence Justice McCay’s opinion in Georgia’s courtrooms.4
. Eberhart v. State, 47 Ga. 598 (1873).
. Unfortunately, such has not been the case. See Young v. Kemp, 758 F.2d 514 (11th Cir.1985); Potts v. Zant, 734 F.2d 526 (11th Cir.1984), 575 F.Supp. 374 (N.D.Ga.1983); Drake v. Francis, 727 F.2d 990 (11th Cir.1984). See also Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (Ga.1980); Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22 (Ga.1980); Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (Ga.1980); Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (Ga.1979); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (Ga.1979); Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (Ga.1978); Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (Ga.1978); Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (Ga.1978); Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (Ga.1978); Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (Ga.1977); Jackson v. State, 219 Ga. 819, 136 S.E.2d 375 (Ga.1964); (approving the reading of Eberhart).
. Scalawag has acquired a dictionary definition: "Scalawag” n. [origin unknown] 1: rascal, scamp, reprobate; 2: an animal of little value, esp. because of poor feeding, smallness, or age; 3: a white Southerner acting as a Republican in the time of reconstruction after the Civil War. See also "scalawagery,” n. the conduct or doings of a scalawag.
Websters Third New International Dictionary (1971).
. I have suggested defense counsel’s view of Justice McCay. In fairness, it should be observed that he was an able and distinguished jurist who can well be seen as one who strove mightily to lead his state through the perils of a trying time. Those interested in further information about this complex man are referred to an excellent article by the late Alexander Lawrence of the Savannah Bar and Judge of the U.S. District Court for the Southern District of Georgia, Henry Kent McCay — Forgotten Jurist, Georgia Bar Journal 5 (1946-47) reprinted in Cleo and the Courts: Tapping the Historical Resources of the Southern Federal Judiciary 1789-Present 185 (1984).