dissenting:
I dissent from the majority’s conclusion that the argument in this case did not render the sentencing phase of William Boyd Tucker’s trial fundamentally unfair. Por the reasons stated in my special concurrence in Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985) (en banc), the majority’s use of the Strickland v. Washington prejudice standard is a legal conclusion unsupported by precedent or constitutional analysis.
I. THE PROPER INQUIRY
As stated in my special concurrence in Brooks, 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 the type of argument tend to mislead or divert the jury; (3) was the remark(s) 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.1 A more detailed examination of these factors can be found in my dissent in Brooks v. Kemp.
This test, in my view, 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. Finally, 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.
If the prosecutor makes improper arguments that tend 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 and only then comes the harmless error inquiry.2 The use by the majority of the Strickland prejudice test merges the harmless error inquiry into the evaluation of whether the argument was constitutionally improper. Furthermore, this shifts the burden of proof to the victim of the alleged misconduct rather than the beneficiary of the error, the prosecution, contrary to the Supreme Court’s decision in Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-828, 17 L.Ed.2d 70S (1967). Finally, effect on the proceedings will miss the point in many cases. Using the new Brooks standard, if the prosecutor has a strong case, he is given a wider latitude to use improper arguments. As the likelihood that a 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 render a proceeding fundamentally unfair vel non without regard to the strength of the evidence against the accused in either the guilt/innocence phase or, as here, in the penalty phase of a capital trial.
II. CLOSING ARGUMENT IN CONTEXT
Using the test set forth more fully in my special concurrence in Brooks, and outlined above, the argument in the penalty phase *1492of William Boyd Tucker’s trial, exceeded the limits of a constitutionally permissible penalty phase argument. At the outset it should be emphasized again that the argument challenged in this case occurred at the penalty phase of Tucker’s trial. As the Supreme Court has noted, the consensus of their capital eases 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, 2963, 57 L.Ed.2d 973 (1978). Improper arguments by the prosecutor at the penalty phase “interjects an irrelevant consideration into the fact finding process diverting the jury's attention from its proper focus, the characteristics of the individual and the offense.” Beck v. Alabama, 447 U.S. 625, 644, 100 S.Ct. 2382, 2393, 65 L.Ed.2d 392 (1980). Such arguments increase the likelihood that a sentence of death will be arbitrary and capricious. The main thrust of the Supreme Court’s death penalty decisions has focused upon the need to eliminate the risk of sentences imposed because of passion or prejudice. 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.
The prosecutor in this case began his closing argument at the penalty phase with the following comment:
I’ve been here a number of years in the district attorney’s office and I’ve tried a number of cases, many cases as a matter of fact, and the death penalty is seldom requested in Columbus, it is very infrequently requested. And since I’ve been here, its been requested as a matter of fact, something less than a dozen times. It’s not very often that we come in here and ask you to bring in a verdict of a death sentence on an individual. And there, of course, are a number of factors we look at when we consider bringing in a case and asking for a death sentence on it.
As the majority acknowledges, such comments are improper. Not only was this argument unsupported by any evidence in the record, it is wrong for a prosecutor to tell the jury he has chosen this case as one of the worst. Such remarks can only be intended and can only have the effect of informing the jury that the prosecution, experts in this field, have already made the decision that this is an appropriate case for the death penalty and that the jury should defer to that decision. Instead of urging the jury to consider all relevant facts before making its choice, he essentially informed them that the life/death decision had already been made. This argument could only have had the effect of reducing in the jurors’ minds the burden imposed by Georgia law on them, i.e., that they and they alone could choose between a sentence of life imprisonment or the death penalty. These arguments were bolstered by the prosecutor’s subsequent discussion of the factors that were considered in determining whether to seek the death penalty. The prosecutor went on to say: “Ladies and gentlemen, among some of these factors are the type of crime, the defendant, what is the crime he’s done, and what his victim is like.”3
The prosecutor then went on to talk about the victim in this case:
And you know when you talk about our victim, let’s talk about our victim in this case, a nineteen-year-old college girl, or nineteen-year-old married woman. We know that she was nineteen, she had a job, that she had most of her life to live ahead of her. She had recently married, she had a husband. She had a long way to go, she had perhaps sixty or seventy years left to live on a national average, if this defendant hadn’t come along and cut off her life. If he hadn’t come along and snuffed her out. If he hadn’t come along and left an empty table, or empty chair in the Perry household. If he hadn’t come along and left a empty chair on Christmas and holidays in the home of her parents, Mr. and Mrs. Knight, who are sitting over there on the front row. This man came along and destroyed a person who had a lot to live for, a person who hopefully had a long time left to live. He came along and caused a lot of heartbreaks, a lot of upsets, a lot more *1493than would be caused to him if this jury-decided that his life should be taken.
These statements urged the jury to vote for the death penalty not because of any factor relating to Mr. Tucker’s character or the facts of the offense, but because the victim was a young newly married person who would be deeply missed by her family. These statements interjected arbitrary factors in the sentencing process that could only mislead or divert the jury from its proper focus.4 The jury was explicitly 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.
The prosecutor next made the following comment:
He’s got a judge up there on the bench weighing the law on this case. He’s got a jury coming in and listening to the evidence. He had policemen who advised him of his rights when he was arrested. And, ladies and gentlemen, if he’s executed it will be humane, it won’t be with knife wounds in the back and knife wounds in the chest.
Did anybody advise Kathleen Perry of her rights when she was killed? I submit to you, ladies and gentlemen, that comparing Kathleen Perry with the execution of this man, there is no comparison that can be made. This man has a judge, he’s got a jury, he’s had policemen to advise him of his rights, he’s had a jury to pass on his guilt or innocence, and he’s got a jury to pass on his fate. Kathleen Perry had none of this. She had no judge, she had no jury, she had nothing but his lust and desire for money, and desire to go out and snuff out the only victim to his crime. She had nothing that he is receiving here today, and he asked for his life to be spared____ Give him the same mercy he gave her. She didn’t have a judge or a jury, or a grand jury to indict her. She won’t have a trip to Reidsville and back. She won’t have any of the other benefits that this man got.
These statements clearly urge the jury to punish Tucker for exercising his constitutional rights. Aside from the comparison between the defendant and the victim noted above, there was also the unmistakable impression that the judicial system coddles criminals at the expense of law abiding citizens, by giving them procedural protections. These statements were not intended to have the jury make a decision based upon the this individual defendant and a rational assessment of the evidence.
The prosecutor then went on to discuss the possibility of Tucker being rehabilitated. Anticipating that the defense would argue the possibility of Tucker’s rehabilitation the prosecutor made the following statement:
He’s going to say, well, this is a young man, he’s only 21 or 22, he can be rehabilitated. Ladies and gentlemen, can you seriously believe that anybody who can do what he’s done could ever be rehabilitated, that man rehabilitated. I’d move to Russia before I’d live next door to this man. Ladies and gentlemen, when you think about him think about rehabilitation, there is no way that this man can be rehabilitated, society can’t afford to take the chance. He can’t be in a position where he can do anymore damage.
The prosecutor then went on to say: And ladies and gentlemen, I’m going to ask you; I’m going to ask you, if you can’t bring a death sentence in on man that’s killed a woman in a ditch like this one did, what kind of case can you bring one in on? There is not going to be a case deserving of the death penalty more than this one.
This is only one of a number of statements in which the prosecutor gave his personal opinion. For example, in another part of the argument the prosecutor stated:
Well, Mr. Cain is probably going to get up here and tell you that he doesn’t believe or the evidence is that punishment or capital punishment does not deter others from similar criminal activity. Well, to me ladies and gentlemen, I don’t believe it. I don’t believe that. You can count me as one of those people who believes that a person receiving a death sentence has got to have some affect on somebody. And ladies and gentlemen, when an execution occurred, or whenever an execution occurs, it has got to have *1494some affect on somebody who is planning some criminal activity somewhere. You can’t tell me that if this man is executed some potential killer somewhere, maybe not in Columbus, maybe somewhere else, but it doesn’t matter because it will be somebody’s daughter that is saved. You can’t tell me that somebody ain’t going to hear about that thing over there being punished, being executed, and this is not going to say that I’m not going to take the chance because the death sentence is enforced and they execute people for doing this kind of thing. There is no way it is not a deterrent.
At another point he explained how he would feel if Tucker was executed. He said:
[I]f he is executed, and if you bring in a verdict of guilty, I’ll sleep just as good, or I’ll sleep better knowing that one of them won’t be on the street. Knowing that one of them will be gone. It’s not all of them, but it’s better than none.
As the majority acknowledges, an attorney’s personal opinion is irrelevant to the task of a sentencing jury in the capital trial. See, e.g., United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978). Additionally, these comments suggest 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 emperically. 428 U.S. at 184-85, 96 S.Ct. at 2930. Additionally, this statement is not relevant to either the character of the defendant or the circumstances of the crime, the relevant factors in a capital sentencing proceeding. See Lockett v. Ohio, supra. The statements, therefore, diverted the jury from their proper focus.
Furthermore, the references to “one of them” could only have been intended to place the defendant within an undifferentiated mass of criminals. These statements suggest to the jury that the only way to protect themselves against crime generally is to bring back a sentence of death in this case. Such a factor is improper in a capital sentencing proceeding because it bears no relation to the individual defendant or the circumstances of his character or crime but rather places him within a larger group of people generally that society should rid itself of.
The significance of this statement is highlighted by another portion of the closing argument when the prosecutor stated:
You know, everybody at this day and age says to policemen and people in the district attorney’s office, what can I do about all this crime such as this one here, what can I do? Well, one thing you can do, ladies and gentlemen, is when you come down and get on a jury and you find the defendant guilty, and you are convinced — that the defendant is guilty, and you are convinced that the case is one that deserves the death penalty, if you feel that way about it, one thing you can do is to do your duty if you feel that way and go ahead and give him the death penalty, because you’ve all said that you believe in the law. You’ve all said that you would follow the law. And ladies and gentlemen, I submit to you that we are not going to get a case more deserving of it than the case of William Boyd Tucker right over there. We are not going to have a case more deserving of the death penalty.
Again, such comments could only be intended to indicate to the jury that the only way they could protect themselves in the accelerating war on crime was to return a verdict of death in this case.
The prosecutor then went on to make remarks intended to dilute the jury’s sense of responsibility for the death sentence. The prosecutor made the following comments:
But I for one want to tell you that you are not the ones who do it if he’s executed. It does not rest on your shoulders, ladies and gentlemen. The policemen did their duty and they went out and made the case. The grand jury down there did it’s duty and it indicted him and charged him with these horrible offenses. The district attorney’s office prosecuted the case, located the witnesses and brought them in. The judge, the court came in and presided the trial. , And ladies and gentlemen, you were the last link in this thing, if this man suffers the death penalty its no more up to you than it is to anybody else, the grand jury, or the police, or the district attorney’s office. All of us are coming in and doing our duty.
In Georgia, the jury is the final sentencing authority in a capital case. Arguments which minimize this responsibility are inconsistent with the jury’s role in a death *1495case and are therefore improper.5 An argument such as the one in this case indicates to the jury that it is only one link in a long process and trivializes the “truly awe-, some responsibility of decreeing death for a fellow human.” McGautha v. California, 402 U.S. 183, 208, 91 S.Ct. 1454, 1467, 28 L.Ed.2d 711 (1971).
The prosecutor then went on to argue: Well, ladies and gentlemen, I submit to you that in some cases a life sentence is not enough. Because, if he goes to the penitentiary with his propensity to do what he has done, others will be placed in jeopardy, because he will be in there with other young prisoners. He’ll be in with people who might be in there for car stealing, or marijuana or something, lesser offenses like that, he’ll be mixed in there with young kids and they’ll be exposed to him, they’ll get his influence. We know about his perverted sexual habits. Ladies and gentlemen, we know about his inability to control his desire to kill. Other prisoners will be in there and they will be subjected to him. Do we want to put young people in his presence as it would be done in Reidsville or where ever he goes to the penitentiary? He could kill them. I submit to you, ladies and gentlemen, that we can’t afford to have this man in our society.
Now, what about the guards who would be guarding him down there? The guards would be, of course, exposed to him. The guards would be in his presence, the guards would have to be letting him, letting him out.
These comments served only to fuel the 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. Such comments are not intended to help a jury make a rational assessment of the evidence. Rather, they are intended to influence the jury to make a decision based on fear; fear for the life of the guards or other prisoners.
The prosecutor then appealed to the jury as taxpayers to impose the death penalty in order to save the costs of feeding and housing Tucker:
[They would be] feeding him, taking care of him, spending thousands and thousands and thousands of taxpayers dollars to support him for the rest of his life, however long that would be, he’ll probably live sixty more years. I submit to you, ladies and gentlemen, that we can’t afford to take a chance on it.
This argument was obviously improper. It provided a reason for the jury to impose the death penalty, i.e., to ease their tax burdens, that is completely irrelevant to the offense and the offender. Such arguments are indefensible.6
III. CONCLUSION
Considering the argument as a whole, I must conclude that the prosecutor’s argument at the sentencing phase of Tucker’s trial rendered it fundamentally unfair. The improper comments that infiltrated the argument were clearly designed not to suggest that the jury make a rational assessment of the evidence but to influence it to render a decision based upon irrelevant and inflammatory suggestions. Furthermore, this is not a case where the prosecutor made one potentially inflammatory remark in the course of an otherwise proper argument. Rather, the prosecutor consistently injected misleading, improper, and inflammatory considerations into the life/death decision. Furthermore, the argument occurred at the penalty phase of the trial. The decision whether to or not to impose the death penalty, because of its focus on the character of the defendant and the subjective nature, is easier to distort through improper argument.
Finally, the constitutional error in this argument was not harmless. As the majority acknowledged there was substantial mitigating evidence. Tucker was a first offender. There was also testimony regarding serious emotional trauma in his life as well as the fact that he was intoxicated the night the crime took place. The *1496cumulative weight of the numerous statements 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. Chapman, supra, 386 U.S. at 23, 87 S.Ct. at 827. Because of this possibility, William Boyd Tucker should be given a new sentencing hearing. Therefore, I dissent.
. This test is very similar to the one used by the panel in Hance v. Zant, 696 F.2d 940, 950 n. 7 (5th Cir.1980). Additionally, these factors are not necessarily a checklist but tools that a court should use in evaluating any particular argument.
. An argument that has been determined to be fundamentally unfair 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 in most cases must issue.
. The prosecutor came back to this theme of factors the prosecution considered in determining whether to impose the death penalty on several occasions.
. See, e.g„ Vella v. Estelle, 708 F.2d 954, 966 (5th Cir.1983), cert. denied, sub nom. McKaskle v. Vella, — U.S. -, 104 S.Ct. 736, 79 L.Ed.2d 195 (1984) (District court's denial of habeas corpus relief reversed), in which the court held his statements relating to the character of the victim were irrelevant in consideration of the severity of the sentence and should not have ’ been considered by the jury.
. The Georgia Supreme Court has found similar arguments to be 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 their 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, 80 Ariz. 193, 294 P.2d 677 (1956); Commonwealth v. Clark, 322 Pa. 321, 185 A. 764 (1936).