dissenting in part.
I respectfully dissent from Part IIIB of the opinion, which holds that the prosecutor’s remarks at the sentencing hearing did not deny Kirkpatrick due process when he was sentenced to death. Even if any one of the prosecutor’s comments was not egregious, the cumulative effect of his arguments was sufficient to deprive the accused of the rational sentencing proceeding to which due process entitled him.
Because death is so fundamentally different from other kinds of punishment, the Constitution requires, by means of procedural safeguards and judicial vigilance, assurance that the imposition of death is not the product of arbitrariness or caprice.1 At a sentencing hearing in a capital case, the jury’s role is to focus on the aggravating and mitigating circumstances of the crime. In reviewing such a proceeding, we inquire whether the jury was motivated by subjective rather than objective factors in reaching its decision. If the prosecutor’s arguments make a rational assessment by the jury unlikely, or the prosecutor engages in “persistent or pronounced misconduct,”2 then the sentencing hearing is fundamentally unfair.
As the majority opinion notes, while each of the three arguments was improper, we have, in other cases, held each of them, standing alone, not so pernicious as to deny the accused due process. In this case the prosecutor sought to arouse the jury not once, but three times, and we should consider them in the context of the entire proceeding.3 The district attorney’s argument covered only four pages of the transcript, and, therefore, likely took less than five minutes. In so short a span, he made three wrongful appeals to the jurors’ emotions. While each by itself may not have awakened the jurors’ prejudices, together they were capable of doing so, for they directed attention to matters irrelevant to the determination of the aggravating circumstances that alone warranted imposition of the death penalty.
“Louisiana’s scheme of capital punishment ... does not allow the jury to impose the death penalty simply because lethal force could have been used in defense of the victim,”4 and we have, therefore, held a prosecutor’s invocation of the right to defend others grossly improper,5 for it diverts the jurors from their proper concern — the aggravating and mitigating circumstances of the crime.6
The district attorney also exhorted the jury to join the fight on crime. Jurors are neither warriors nor policemen. They are judges, judges of the facts. It is their task *289to decide, not to ferret out evil. As Judge Frank Johnson has observed, an argument that enlists the jurors in a cause is notoriously inflammatory:
Not only does the characterization of the defendant as an anonymous member of the “criminal element” deprive him of the individualized consideration required prior to the imposition of the death penalty, but the suggestion that a “war” has been declared, and the attendant implication that jurors have a “duty” to fight it, removes from the jury the sense of responsibility for their decision that makes for an appropriately bounded exercise of their discretion.7
The prosecutor’s third error, his implied condemnation of Kirkpatrick’s invocation of the legal process is equally egregious.8 The popular media have inflamed public opinion with resentment, if not rage, at the protection accorded the accused while, to assert a popular view, there is less (or no) concern for the rights of the victim. To invoke prejudice against the accused because he is entitled to due process of law before being condemned is to strike at the fundamental due process protections accorded by the fourteenth amendment.
The cumulative effect of the district attorney’s comments fatally infected the sentencing hearing and rendered it fundamentally unfair. They injected improper considerations into the jury’s deliberations, undermining the jurors’ ability to weigh dispassionately the aggravating and mitigating factors of the case and to reach a rational determination. Accordingly, I would remand for a proper sentencing hearing.
ON SUGGESTION FOR REHEARING EN BANC
OPINION
PER CURIAM:Kirkpatrick’s petition for rehearing argues that we applied an improper standard of review to the alleged constitutional errors in his state court trial. The application relies on three Supreme Court decisions, all referred to in our original opinion, but our decision is fully consistent with each of them.
Lockett v. Ohio1 held an Ohio death penalty statute unconstitutional because it allowed consideration of only three enumerated mitigating circumstances and thus did not permit the full individualized consideration of mitigating factors required by the Eighth and Fourteenth Amendments. Eddings v. Oklahoma2 vacated a death sentence imposed on a person who was sixteen years old at the time of the crime because the trial court had refused to consider evidence of the youth’s troubled past when offered to mitigate the sentence. The Court held that all relevant mitigating evidence must be considered.
The trial court’s refusal to grant a continuance was equivalent neither to the exclusion of mitigating evidence nor to the limitation of such evidence to specific factors. Mitigating evidence was in fact presented. If the denial of a continuance violated any of Kirkpatrick’s constitutional rights, it was his right to due process, not his right to be free from cruel and inhuman punishment.
Similarly, Kirkpatrick seeks to persuade us to apply to our review of the prosecutor’s remarks the standards exacted by the Eighth Amendment rather than the less stringent due process criteria, citing as authority Caldwell v. Mississippi.3 As we explained in our panel opinion, Caldwell held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.”4 It does not follow that every other improper remark by a prosecutor at the sentencing phase of a capital case is per se so prejudicial as to be weighed against the same balance.
The concluding paragraph of the majority opinion in Caldwell states,
In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard *290of reliability that the Eighth Amendment requires.5
In our opinion the “no effect” test applies to the state’s effort to minimize the jury’s sense of responsibility, not to every other improper argument.
Finally, we emphasize as we did in our original opinion that “when viewed as a whole, each of the closing arguments was not improper.” It is on this final conclusion that we ultimately rest.
No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rules of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.
For these reasons the application for rehearing by the panel is DENIED. Judge Rubin adheres to his original dissent.
. See, e.g., Zant v. Stevens, 456 U.S. 410, 413, 102 S.Ct. 1856, 1857, 72 L.Ed.2d 222, 225 (1982).
. Fulford v. Maggio, 692 F.2d 354, 359 (5th Cir.1982), rev’d on other grounds, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983).
. See Cobb v. Wainwright, 609 F.2d 754, 755 n. 1 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980) (instances of prosecutorial argument are not to be viewed in isolation).
. Willie v. Maggio, 737 F.2d 1372, 1390 (5th Cir.1984).
. Id.
. See majority opinion, supra, text following note 34.
. Brooks v. Kemp, 762 F.2d 1383, 1430 (11th Cir.1985) (Johnson, J., dissenting).
. See, e.g., Bruno v. Rushen, 721 F.2d 1193 (9th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984).
. 438 U.S. 586, 98 S.Ct. 2953, 57 L.Ed.2d 973 (1978).
. 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
. 105 S.Ct. 2633 (1985).
. Id. at 2639.
. 105 S.Ct. at 2645 (emphasis supplied).