concurring in part and dissenting in part,
in which RONEY, Chief Judge, FAY and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge, joins:I concur in the judgment of the court, insofar as the sentence of death is concerned. Without reaching the constitutionality of the instructions given in this case had the judge not misspoke and instructed the jury that if they found an aggravating circumstance their verdict “would be” death, I agree that the instructions that were given do not pass constitutional muster. I also agree that petitioner has not shown that, under the Supreme Court’s recent decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), he was constitutionally entitled to the assistance of non-psychiatric experts to aid him in his defense. I write separately on that issue because my analysis of that question differs somewhat from that of the majority opinion. I must respectfully dissent, however, from the majority’s holding that petitioner is entitled to an evidentiary hearing on the Brady/Giglio claim he presents. I address petitioner’s Ake claim *736in Part I and the Brady/Giglio claim in Part II.
I. NON-PSYCHIATRIC EXPERT ASSISTANCE UNDER AKE v. OKLAHOMA
The majority opinion concludes that petitioner’s due process rights were not violated by the trial court’s refusal to appoint experts to assist him in the presentation of his defense because he failed to make the requisite showing that an expert would aid the defense or that the denial of such assistance would result in a fundamentally unfair trial. See Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1096-97, 84 L.Ed.2d 53 (1985); see also Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 321 (1985). I would not turn the analysis of this issue on that conclusion. Petitioner has probably shown that expert assistance would have aided his defense. I would thus proceed to an analysis of whether, under Ake, petitioner was constitutionally entitled to the expert assistance he sought.
At the outset I observe that the holding in Ake is simply that where the defendant makes a pre-trial showing that his sanity is likely to be a significant issue in the case he is entitled to the assistance of an independent psychiatrist at state expense if he cannot afford one. The issue of sanity vel non is a peculiar issue in criminal law, and the holding in Ake was principally motivated by the Court’s recognition that to prove a valid insanity defense one must necessarily present the testimony of psychiatrists. Analyzing the probable value of the psychiatric assistance sought in Ake and the risk of error in the proceeding if the assistance were not offered, the Supreme Court obviously considered essential to its decision the “reality that we recognize today, namely, that when the State has made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense.” Ake, 470 U.S. at 80, 105 S.Ct. at 1095. The court commented at length upon the arcane nature of the inquiry into whether one is legally insane, noting in particular the indispensable nature of psychiatric testimony in presenting an insanity defense. The issues involved “inevitably are complex and foreign” to the common knowledge of jurors, so that “the testimony of psychiatrists can be crucial and ‘a virtual necessity if the insanity plea is to have any chance of success.’ ” Id. at 81, 105 S.Ct. at 1096. The Court therefore held that the state’s financial interests must, as a matter of constitutional law, yield to the interests of the state and the defendant in the accuracy of the criminal proceedings in those cases in which the defendant can demonstrate to the trial court before trial that his sanity is likely to be a significant factor in his defense. Id. at 83-84, 105 S.Ct. at 1097.1
This, of course, is not a case involving the issue of sanity vel non. The defendant interposed a plea of not guilty based on the facts of the offense, not on the condition of his mind. In Ake, the denial of the indigent defendant’s request for psychiatric assistance had the necessary effect of almost completely precluding him from presenting any claim of insanity to the jury, regardless of the validity of the defense. In this case, although it appears that appellant might have been aided at trial by the assistance of experts of his own, his inability to obtain their services did not have the necessary effect of preventing him from assert*737ing and supporting his defense.2 A valid claim by the defendant that he was not at the scene of the crime ordinarily may be supported effectively at trial in a wide variety of ways. Regardless of the nature of the prosecution’s proof on such an issue, expert testimony constituted but one of the many effective means by which such a claim might be substantiated. In this case, appellant offered little but his own testimony to rebut the evidence presented by the prosecution to show that he was at the scene of the crime when it occurred and had committed it. I certainly would not hold, however, that simply because appellant’s defense was weak on the facts and methods of proof otherwise available to him, he was constitutionally entitled to the assistance of experts to help him develop and support his theory of the case before the jury. Further, appellant was not entitled to the assistance of his own experts simply because the state relied in part upon expert testimony to prove its case. The purpose of providing expert assistance to the defendant is not to even the score. The accuracy-enhancing value of affording expert assistance to the defendant and the risk of an erroneous determination of guilt if such assistance is not provided are not increased significantly in a case like appellant’s by the extensive use of experts by the state or by the defendant’s inability to present any other evidence in support of the defense he chooses to assert. Those circumstances might render expert assistance to such a defense helpful, but they do not render such assistance significantly more essential to the accurate determination of whether the defendant committed the crimes with which he was charged.
To extend Ake as appellant suggests would impose an extraordinarily far-reaching and costly burden on the states and their taxpayers. There are obviously many important issues in criminal trials whose presentations could conceivably be enhanced by expert testimony. Ake however, is a narrow holding premised upon the peculiar role psychiatric testimony necessarily plays in the assertion of an insanity defense or, in a capital sentencing proceeding, evaluating mental condition as an aggravating or mitigating circumstance. Absent further direction from the Supreme Court, I am convinced that unless non-psychiatric expert assistance is, because of the nature of the issue on which it is sought, as vital to resolution of the issue as psychiatric assistance was in Ake, the Constitution does not require that it be provided in a criminal trial. I therefore agree with the majority that petitioner is not entitled to an evidentiary hearing in the district court on his claim that his constitutional rights were violated when he was tried following the trial court’s refusal to provide him with funds to hire experts to aid him in the formulation and presentation of his defense.
II. THE BRADY/GIGLIO CLAIM
Moore claims that his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), were violated when the prosecutor failed to reveal certain information that would have aided the defense in its attempts to undermine the credibility of Thomas Pasby. This claim was litigated in the state courts, but in those proceedings Pasby’s probation file was not made avail*738able to petitioner or his counsel. For that reason, the majority finds that Moore’s claim was not fully and fairly litigated in the state proceedings and that the state court’s findings are therefore not entitled to the statutory presumption of correctness. The court further holds that an evidentiary hearing is warranted on the claim and remands the case to the district court for that purpose.
The probation file would have revealed the following facts that the prosecution, according to petitioner, should have disclosed to the defense in a timely manner: (1) that Pasby had been sentenced on November 10, 1976 to serve 12 months in custody and placed on probation, with a condition of probation being that, if he violated the terms thereof, he could be required to serve the balance of the 12 months; (2) that on January 6, 1977 Pasby was arrested for violating the terms of his probation; and (3) that his probation officer had told him that the sheriff of Bleckley County would “put in a good word for him when his case comes up because of his cooperation” in some unspecified matter, presumably a “wide ranging investigation of other stolen firearms, one of which may be [the] murder weapon in the Theresa [sic] Allen case” mentioned in a previous entry in the report. This information could have been useful to the defense in two respects: (1) It arguably suggests that Pasby may have been led to believe that he would receive special consideration in the probation revocation proceedings in exchange for his cooperation in the Moore case. (2) It could have been used to undermine his credibility by suggesting that perhaps he reasonably believed such consideration might be forthcoming, even if no assurances had been made.
I agree with the majority’s conclusion that petitioner has not received a full and fair hearing in the Georgia courts on the Brady/Giglio claim he seeks to raise in this court now.3 The question before this court then becomes whether the allegations of Moore’s complaint, supported as they are by the probation file, warrant an evidentiary hearing in the district court. The majority opinion holds that they do, relying heavily on inferences that might be drawn from the information contained in the probation report. In my view, the bare allegations of petitioner’s complaint, supported by the copy of the probation file that we have been able to examine, are clearly insufficient to warrant an evidentiary hearing. I reach this conclusion not because I believe the prosecutor acted correctly in failing to discover and turn over the file, but because I find it clear beyond question that there is no “reasonable probability that, had the evidence [petitioner claims was improperly withheld] been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985) (Black-mun, J., joined by O’Connor, J.); id., 105 S.Ct. at 3385 (White, J., joined by Burger, C.J., and Rehnquist, J.).
Taking the probation file to establish all that it suggests, the only arguably material facts bearing on Pasby’s credibility that were not revealed in a manner that would *739have permitted their effective use at trial are (1) the fact that Pasby was on probation when he testified and (2) the fact that he had been told by his probation officer that because of his cooperation in the Teresa Allen murder investigation, the sheriff of Bleckley County would “put in a good word for him when his case [came] up.” This could have been exploited by defense counsel at trial to suggest at most that Pasby’s testimony was motivated in part by a desire to avoid serving the remainder of the one year sentence of imprisonment that had been suspended when he was placed on probation.4
The possible effect of this sort of impeachment on the jury’s assessment of Pas-by’s credibility may only be evaluated in the context of the impeachment of Pasby with material turned over to the defense by the state that the jury found unconvincing. On cross-examination, defense counsel brought out the fact that Pasby had made several statements to investigating officers soon after he was arrested to the effect that he knew nothing about the crime. His story changed, however, when he found himself threatened with prosecution for the murder that was under investigation. Defense counsel completed his cross-examination of Pasby as follows:
Q. Do you remember being interviewed by GBI Agent Roy Olinger?
A. Yes, sir.
Q. Had you told it like it was before you talked to Officer Olinger?
A. No, sir.
Q. You hadn’t told it like it was then?
A. No, sir.
Q. Do you remember Officer Olinger asking you this question: “This is what we want. I realize it may incriminate you in some way. I’m not out after you for the rifle. I’m not trying to hang you in any way, shape or form. I’m wanting to know about that rifle. I’m wanting to know if you had any knowledge with reference to where it was stolen. I know you know about the rifle but I’d like to know if you knew where it was stolen. I’d also like to know anything else you have in reference to this. That’s all I’m asking of you. I’m not going to — to try to put pressure on you. I’m not wanting to sit here trying to bullshit you, I’m wanting nothing but the truth. I can get hardnosed. You know what an accessory is? That is aiding and abetting. That is, according to Georgia law, is called aiding and abetting. You have an accessory before the fact, you have an accessory during, and you have an accessory after. You could fall into one of these categories. Refusing to give information that we can prove that you had prior to this questioning makes you an accessory. If you want to go that route, that’s called aiding and abetting. That makes you liable to receive the same punishment as the person who actually pulls the trigger or who actually raped the girl or who kidnapped the girl. Now, that’s strictly up to you. I’m not wanting to be hard-nosed that way. All I’m doing is trying to sit down with you, Thomas, and ask you to tell me the truth and give me the information, that’s all, maybe clean the rest of it right here.” Do you remember him telling you that?
A. Yes, sir.
Q. And then you got it down right then after that?
A. Yes, sir.
BY MR. FREEMAN: That’s all.
Defense counsel then made reference to this cross-examination of Pasby in his closing argument:
*740Pasby says that he didn't talk about this case until after he’d been in jail several weeks or several days, some period of time, and in any case, he was a suspect while he was in jail, and that when he talked about it, he talked about it after Roy Olinger — you remember when I read that statement from Olinger, what he told Pasby, that unless he told what they wanted him to tell, told the truth, told something, that he was going to get the same punishment as everybody else did. He didn’t change his story; up until that point, he had told them he didn’t know anything about it. He didn’t say he knew anything about it until after they told him they were going to put pressure on him. Roy Olinger was on the witness stand yesterday, I called him for direct examination. There was not a single question asked him by the State to show — there was no effort made to deny that he actually told Pasby that. If he didn’t tell him that, the State could — he could have told them. I think the only conclusion is that he actually did tell Pasby, threatened him that he was going to be punished for it himself unless he told about it.
Thus Pasby was heavily impeached with the fact that he was a suspect in this very murder and had failed to implicate petitioner until he was threatened with prosecution himself. The prosecutor did not address directly the challenge posed by defense counsel’s impeachment of Pasby in that manner, focussing instead on the physical and testimonial evidence tending to corroborate Pasby’s testimony. Yet the jury obviously believed Pasby. Thus defense counsel was unable to influence the jury’s assessment of Pasby’s credibility with the unchallenged assertion that Pasby’s testimony was motivated at least in part by the fear that he, himself, might be prosecuted for the Allen murder. In light of that fact, I cannot believe that the jury might have been moved by the argument that Pasby’s testimony was somehow influenced by his probationary status at the time he testified or by any expectation of favorable treatment on any other charge. In short, if the jury did not believe Pasby was lying to avoid a murder prosecution, they surely would not have believed he was lying for any of the reasons petitioner suggests.
It is important to me that prosecutors respect their obligations under Brady and Giglio, and I am willing to assume with the majority that the prosecutor in this case was under an obligation to turn over to the defense any information found in Pasby’s probation file that might have been useful to the defense in impeaching the witness at trial. I am deeply disturbed, however, by the prospect of a federal district court ordering the release of a convicted murderer subject to retrial at this late date on the basis of circumstances as unlikely to have had anything to do with his confinement as those that have been alleged in this case. Because I cannot find there to exist a reasonable probability that the outcome of petitioner’s trial would have been affected by any of the information petitioner alleged was wrongfully withheld, I cannot agree with the majority that an evidentiary hearing is warranted on petitioner’s Brady/Giglio claim. From this portion of the majority's holding I therefore respectfully dissent.
JOHNSON, Circuit Judge,concurring in part and dissenting in part,
in which KRAVITCH and HATCHETT, Circuit Judges, join, and in which GODBOLD, Circuit Judge, joins Part I and Part II in part, and in which ANDERSON and CLARK, Circuit Judges, join Part I:I join the majority’s opinion as to Sections I, III, and IV. With deference, I disagree with its disposition of the Ake issue in Section II, and I would more squarely address the problems raised by certain testimony and by the prosecutor’s comments that the majority discusses in its Section V.
I. The Ake Issue:
In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court considered whether the state *741in a capital case is required, by the constitutional guarantee of due process of law, to provide an indigent defendant with a psychological expert when insanity is offered as a defense. Eight of the Justices so held. They gave express recognition to the tremendous effect that uncontested expert testimony generally has upon the fact finder, id. at 81, n. 7, 105 S.Ct. at 1096, n. 7, and then held that “[w]hen the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent. It is in such cases that a defense may be devastated by the absence of a psychiatric examination and testimony....” Id. at 82-83, 105 S.Ct. at 1097.
In identifying this constitutionally protected right, the Court set forth a three-pronged test to be considered in determining if an indigent capital defendant is entitled to state-paid expert assistance: 1) "the private interest that will be affected by the action of the State”; 2) “the governmental interest that will be affected if the safeguard is to be provided”; and 3) “the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.” 470 U.S. at 77, 105 S.Ct. at 1094. It is clear from the Court’s analysis, however, that in capital cases prongs one and two will always yield identic results: the private interest “is almost uniquely compelling,” “obvious and weighs heavily in our analysis;” the state’s interest is coincident with that of the individual — in an accurate and fair verdict. Id. at 77-80,105 S.Ct. at 1094-95.
Thus it is solely upon the third factor, the probable value of the expert assistance and the risk of error attendant upon its denial, that courts will focus in deciding these questions. In Ake the Supreme Court noted six factual criteria that dictated the need for state appointed assistance in Ake’s case. Id. at 84-88, 105 S.Ct. at 1098-99. But the Court was careful to note, in identifying these factors, that it was setting forth neither a touchstone nor a catechism. Id. at 86, n. 12, 105 S.Ct. at 1099, n. 12. The Court reaffirmed its unwillingness to state a precise test in that same term in Caldwell v. Mississippi, 472 U.S. 320, 323-324, n. 1, 105 S.Ct. 2633, 2637, n. 1, 86 L.Ed.2d 231 (1985) (rejecting request for criminal investigator, fingerprint expert and ballistics expert because petitioner “offered little more than undeveloped assertions that the requested assistance would be beneficial____”).
Caldwell, read in conjunction with Ake, teaches us several things. First, it reaffirms that the obvious object of the Court’s reticence in Ake was the need for flexible decisionmaking tailored to the facts of a given case. Capital cases do not lend themselves to rigid, ritualistic formulae. Second, it belies the state’s suggestion that Ake must be read narrowly and confined to its facts. Caldwell’s footnote 1 suggests that the Court was willing to entertain extending Ake in the fashion Moore requests today. Rather than rejecting the claim out of hand as inappropriately stretching Ake to a different question, the Court refused to grant relief only because Caldwell failed to make a showing of sufficient need under Ake's flexible standard.1
*742The majority opinion today accepts, for the sake of argument, the proposition of extending Ake to non-psychiatric experts. Thus' I believe that our query today is not whether Ake may be logically and appropriately extended to such experts. Rather we must decide two questions: A) how should courts decide whether a defendant is entitled to such assistance given the elastic rule that Ake molded; and B) whether Moore made a showing before the trial court of his need for such assistance sufficient to meet the measure of this test. The majority crafts such a test in its Section II, and then answers the second question in the negative. Because I believe that the majority’s reading of Ake creates a proverbial “Catch-22,” making it impossible for all but the most nimble (and prescient) defendant to obtain expert assistance under Ake, I would restructure the majority’s test and then answer the second question affirmatively, based upon the record before us.
A.
The majority today attempts to bring this case under the aegis of Caldwell, arguing that Moore failed to make a showing of need for an expert that went beyond mere ipse dixit. The majority correctly views Ake and Caldwell as requiring a defendant seeking the assistance of an appointed expert to show that a reasonable probability exists both that such an expert would be of assistance to his defense and that denial of expert assistance would result in a fundamentally unfair trial. However, the majority engrafts upon that standard strict requirements that make relief unobtainable. The majority demands, as the price for a favorable ruling upon a request for assistance, that the defendant provide a specific description of the expert desired and why the assistance of that expert is necessary. If assistance is needed to confront the prosecution’s case, the majority requires the defendant to detail both the nature of the prosecution’s case and how the requested expert would be useful in challenging that case.
I cannot agree with this approach for two reasons.2 First, the standards the majority creates actually contravene the flexible approach announced in Ake and Caldwell. By mandating essential elements in applying Ake’s third prong, the majority does precisely what the Supreme Court declined to do: it determines which “of these factors, alone or in combination, is necessary to make [a] finding [that a defendant is entitled to state-provided expert assistance].” 470 U.S. 86, n. 12, 105 S.Ct. at 1099, n. 12. The majority thus impermissibly limits the interplay of factual considerations, unique to each case, that the Supreme Court sought to preserve in deciding this question.
Second, even accepting the legitimacy of any formal set of points for decision, the majority’s standards are too exacting because they require the defendant to pos*743sess already the knowledge of the expert he seeks. The Court in Caldwell required no more than that the defendant make a threshold showing of reasonableness. That standard requires only that the defendant make something more than “undeveloped assertions that the requested assistance would be beneficial____” 472 U.S. at 324, n. 1, 105 S.Ct. at 2637, n. 1. But the majority goes beyond this and requires a defendant to make a full-fledged showing of an expert opinion that rebuts the state’s case. I have grave doubts whether a defendant can make the sort of particularized showing that the majority demands.
For example, in this case Moore’s counsel may well have known that in order to contest evidence regarding vaginal swabbings from the victim he needed an expert. But how could he know if he needed a microbiologist, an organic chemist, a urologist, a hematologist, or that which the state used, a serologist? How further could he specify the type of testing he needed without first hiring an expert to make that determination? In this case one important question is whether Moore’s and Pasby’s semen has a high or low “secretion” content. How could Moore’s attorney both know of and show to the court the existence of, as well as the need for, such tests without first obtaining the very advice he seeks the court provide. This is, I submit, a Catch-22 that few will surmount.
A court should not deny relief summarily simply because the defendant cannot specify the type of expert he needs. If physical evidence constitutes the bulk of the prosecution’s case, the need for expert assistance to confront the prosecution’s evidence is manifest. However, the defendant genuinely may not know what type of expert he needs to mount an effective challenge. The majority would foreclose any inquiry into the defendant’s need for assistance simply because the defendant cannot state up front the specific assistance he requires. When a defendant asks for assistance and the need for assistance is obvious, it is fundamentally unfair for the court to deny assistance merely because the defendant lacks scientific knowledge. After reviewing the physical evidence the prosecution possesses, the court, with its experience in criminal cases, may itself be able to determine what type of expert the defendant needs.
Furthermore, lawyers often lack either the time or the ability to learn whole areas of forensic science. Experts can acquaint defense counsel with the scientific principles involved, point out weaknesses in the prosecution’s tests, and recommend tests that the defense might find useful. The majority would preclude a defendant from ever receiving such assistance from appointed experts. This is not to say that a defendant is entitled to an appointed expert upon demand whenever the prosecution’s case involves physical evidence. However, the standard in Ake is sufficiently flexible to allow appointed experts to provide such preliminary assistance in certain instances.
The majority also places on the defendant the burden of prescience: of knowing (or really guessing) that the state intends to use certain testimony in certain ways.3 Despite the limits of discovery and the scope of the work product rule, Moore’s counsel undoubtedly knew that the state had and would present expert interpretations of physical evidence. He may even have known the gist of the testimony to be offered. However, how could any defendant ever have more than an inkling as to how the prosecution intended to use such evidence? In this case the prosecutor re*744lied heavily upon it, telling the jury that it was “very incriminating.” But a prudent prosecutor could only make effective use of such flabby testimony if he knew that the defendant could not rebut it with his own experts. Consequently, the majority’s test is circular. The evidence will only play an important role if the defendant has no expert, and the defendant needs no expert if the evidence plays no important role. To the extent that this factor is retained at all, the burden of proof ought to be placed upon the government to show that the information at issue is not critical to its case. Then that showing ought to be made a binding commitment by the government to use the evidence only in that fashion.
I reiterate that the Supreme Court has required only that the defendant make a bona fide showing of reasonableness. That is a showing that the defense could, if the request has merit, and ought to make in order to justify appointment of assistance. My objection is that the majority’s opinion engrafts upon this requirement unnecessary and improper burdens that, I fear, will almost always prove fatal to the defendant’s request.
B.
Benjamin Cardozo, with characteristic grace, once noted that “a defendant may be at an unfair disadvantage[ ] if he is unable because of poverty to parry by his own witnesses the thrust of those against him.” Reilly v. Berry, 250 N.Y. 456, 461, 166 N.E. 165, 167 (1929) (per Cardozo, C.J.). The Supreme Court has noted that which any experienced trial judge or lawyer could confirm: that “ ‘[tjestimony emanating from the depth and scope of specialized knowledge is very impressive to a jury. The same testimony from another source can have less effect.’ ” Ake, 470 U.S. at 81, n. 7, 105 S.Ct. at 1096 n. 7 (quoting F. Bailey & H. Rothblatt, Investigation and Preparation of Criminal Cases § 175 (1970)). A defendant’s inability to rebut expert testimony, coming before the jury with what is effectively a presumption of correctness, is “devastating” to the unassisted defendant’s chances of persuading the jury to reject such evidence. 470 U.S. at 82-84, 105 S.Ct. at 1097.
The case against Moore was, to be charitable, weak. There was no direct evidence linking him to the crime and he claimed that at the time of the murder he was passed out on his sofa at home. No one at trial offered an eye witness account of any episodes in the crime. The prosecution’s case was built solely upon a two-part foundation: the testimony of Pasby as to Moore’s supposed admissions to him; and the testimony of several expert witnesses as to physical evidence found at the scene of the crime and in Moore’s house one month later. The jury convicted Moore based upon these two elements.
This Court today finds that Pasby’s testimony may have been given in exchange for lenity in regard to charges pending against him — a fact the jury did not know. Upon remand it may well be that Pasby’s testimony will be found incredible, given his own likely biases. The physical evidence thus assumes an even more critical role in the question of Carzell Moore’s guilt or innocence because half of the foundation for the prosecution’s case may well have been undermined by constitutional error. Under such circumstances, it is not unfair to say that in large part the determination of Carzell Moore’s guilt will hinge upon the testimony of state experts that the majority would leave him powerless to contradict with any degree of effectiveness.
Ake requires “an ex parte threshold showing to the trial court” that the matter subject to expert testimony is “likely to be a significant factor” in the defense. 470 U.S. at 82, 105 S.Ct. at 1097. By Caldwell ’s language, Moore must show that his need for expert assistance to interpret physical evidence is based upon a developed assertion of reasonable necessity. The majority would require a description of the assistance needed and the type of testing, an explanation of the importance of the physical evidence to the state’s case, and an explanation of how the expert would assist Moore in defending himself. Under *745all three rubrics I believe that Moore made an adequate showing of need for and entitlement to state-paid expert assistance.
At the pre-trial hearing, Moore’s attorney addressed the court orally on the subject.
We would like to make a motion to the Court that an independent research analysis [sic] be appointed by this Court that is not employed by the State of Georgia to examine this evidence to find his own conclusions on behalf of the defendant, to reach his own conclusions, in order that we can first of all, have someone to advise us as to the expertise of the Georgia Crime Lab, whether or not they performed the correct tests, whether or not there could be any variances in the findings of the Georgia Crime Lab, in order that we would have this knowledge available to us.
R.Exh. 2-40. This, standing alone, is no more than an “undeveloped assertion[] that the requested assistance would be beneficial____” Caldwell, 472 U.S. at 324, n. 1, 105 S.Ct. at 2637, n. 1. But the defense attorney supplemented this oral statement with a written request:
Defendant has been informed that the various items of physical evidence tend to connect him to a commission of the crime for which he is charged, even though defendant understands that a number of the tests performed by the State Crime Lab do not conclusively prove the presence of defendant, but rather prove the presence of someone similar to defendant.
Neither the defendant nor his counsel are [sic] sufficiently knowledgeable to determine whether the test and examinations performed by the State Crime Lab on the various pieces of physical evidence are complete, conclusive, or exhaustive.
This, coupled with the oral statement, goes to the requirements of Ake, of Caldwell, and of the majority's opinion. It sets forth a reasonable need for expert assistance in order both to impeach state witness credibility and credentials and to attack the factual conclusions that those witnesses will likely draw — in short the probable value of such assistance and the risk of error if denied. The statement goes on, however:
Defendant understands that there are certain tests which can be run which might conclusively prove whether or not the hair samples found are those from defendant, but neither defendant nor his counsel have the necessary funds or expertise to perform said tests.
This bolsters the reasonableness of the request and further meets the majority’s requirement that the defendant specify the tests he seeks to have performed. Moore’s attorney continued:
Appointed counsel cannot effectively prepare the defense for Defendant without the services of an expert witness to advise him concerning the tests and examinations run by the law enforcement and judicial agencies and no provision has been made for the Defendant to have available to him the kind of resources which are available to the State through the State Crime Laboratory in order that the Defendant can test the validity of and accuracy of any tests which have been run by the State and the results of which may be introduced into evidence against the defendant at trial.
R.Exh. 1-87. Again, the defendant offered evidence of reasonableness and a showing sufficient to describe the type of expert assistance needed. Moore’s attorney even went on to offer the trial court the name of his proposed expert and the fee for his services: $1500.
Admittedly, Moore’s lawyer did not affirmatively allege that the state would rely upon the evidence here at issue.4 But as Moore’s counsel noted in his motion for *746expert assistance, he could not do so because:
[t]here is no statute in the law of Georgia giving the Defendant the right to compulsory legal process which will require the State to advise the Defendant of the basis on which the State intends to attempt to prove that the defendant is guilty of the crime for which he has been indicted.
R.Exh. 1-88. Thus the majority today imposes a burden on all indigent defendants which the law of Georgia makes impossible to meet. Moreover, given the lack of any eye witness to this crime, and the fact that aside from the physical evidence the state’s only witness was a cellmate with a criminal record of his own, I believe it was so patently obvious as to go without saying that the physical evidence, and expert interpretation of that evidence, would be critical, even absent an express guess by the defendant to that effect.
The physical evidence in this case was, standing alone, weak. As the state’s witnesses themselves conceded, there were major questions as to the validity and accuracy of the tests performed. The majority’s recitation of the facts does not mention that the Hushpuppy shoe prints found at the scene of the crime were not congruent in size with those seized from Moore’s house, yet Moore was unable to counter this damaging circumstantial evidence with testimony as to whether the soil could have produced a print longer and wider than the shoe. The semen sample could be identified as coming from any of the two-fifths of the country’s male population sharing Moore’s blood type.5 The two hairs seized from a towel in Moore’s bathroom, one month after the crime, could likewise only be shown to be consistent with those of Allen and not inconsistent with those of Moore, Green or Pasby. In essence, the state’s “expert” could only say with certainty that which any layman could also have observed: that he viewed a blond pubic hair and a Negro head hair.6 Yet the prosecutor was able to characterize this evidence as “very incriminating” in large part because he was assured that Moore could not offer a witness of equal stature to question these assertions. It is precisely in cases of this sort where failure to provide expert assistance to the defendant becomes crucial. When physical evidence is itself weak it may well be that the persuasiveness of that evidence derives entirely from the enhancing effect caused by “expert” testimony prodding the jury toward a particular conclusion.7
For all of the reasons foregoing, I believe that the majority errs in its disposition of this question, both as a theoretical matter and as applied within the confines of this case. Moore has established a reasonable need for the assistance of experts under Ake, and I would grant him relief.
*747II. Comparable Worth:
The majority notes that it need not and will not pass upon Moore’s claim of constitutional error resulting from the testimony of Allen’s father. Surprisingly, the majority then goes on to offer a “comment” for the benefit of the state court on remand that this was improper, although the majority claims that it makes no holding on this point. The question posed by Moore is an important one; this Court has found that considerations of judicial economy in habeas cases-involving the death penalty permit us to pass on all possible bases for relief,8 the Ashwander doctrine to the contrary notwithstanding.9 I would do so today and, having squarely reached the question of error flowing from Mr. Allen’s testimony, as well as from the prosecutor’s comments on that testimony during closing argument, would hold that Moore has stated a claim of constitutional deprivation.
In this case, after both the prosecution and defense had rested in the sentencing phase, but before closing arguments, the prosecution requested and the trial court permitted the victim’s father to take the stand to “rebut” certain testimony and to provide evidence of “aggravating circumstances.” He was the last witness the jury heard. Over defense objections, Mr. Allen testified that his daughter was nineteen years of age, had been a high school honor student, was attending college in part on a scholarship and in part on her earnings from work at the Majik Market, and hoped to become a nurse.
As the majority notes, this testimony was admitted ostensibly to rebut any suggestion that Ms. Allen had voluntarily participated in the robbery, although Moore never raised this allegation and indeed would have undermined his entire defense had he done so. The state now argues also that this evidence was admissible in order to show additional aggravation — armed robbery or kidnapping — in addition to the already claimed rape and murder.10 Thereafter, as will be explained more fully below, the prosecutor invited the jury to weigh the relative worth or value to society of the two lives at issue: Mr. Moore and Ms. Allen. Moore argues that it is constitutionally impermissible for the state to inject into the sentencing process information of such inflammatory nature as class and worth, especially by means of tactics designed to leave that testimony as the last evidence on the jury’s mind.11
The whole thrust of American jurisprudence in the capital punishment area has been an attempt to excise from the sentencing process any traces of bias or caprice by channeling and cabining discretion. Furman v. Georgia, 408 U.S. 238, 242, 92 S.Ct. 2726, 2728, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring) (capital punishment is unconstitutional if it discriminates “by reason of ... race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such *748prejudices”); Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932-33, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, & Stevens, JJ.) (“[Wjhere discretion is afforded a sentencing body on 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 so as to minimize the risk of wholly arbitrary and capricious action”); Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393 (1977) (“It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion”); cf. C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 100 (2d ed. 1981) (the great weakness of the capital punishment system is that it “is riddled and saturated with uncontrolled discretion, however disguised”). When discretion is unchained, the Eighth Amendment is at peril. Furman, 408 U.S. 309-10, 92 S.Ct. at 2762-63 (Stewart, J., concurring).
This Court recently considered the question whether it is error to argue personal characteristics of the victim to the jury. Brooks v. Kemp, 762 F.2d 1383, 1409-10 (11th Cir.1985) (en banc), makes clear that while it is not per se improper to do so, the introduction of such information is problematical and must be carefully controlled to prevent “excessive focus” on prejudicial or irrelevant matters. Brooks, and the panel decision below, make clear that the propriety of each episode turns on the totality of the circumstances.
The decision to admit Mr. Allen’s testimony, and the prosecutor’s suggestion to the jury that it weigh the relative values of the two persons to society is, I think, error of the grossest sort. While it is not per se unconstitutional to admit testimony “not directly related to either statutory aggravating or statutory mitigating factors,” Barclay v. Florida, 463 U.S. 939, 967, 103 S.Ct. 3418, 3433, 77 L.Ed.2d 1134 (1983) (Stevens & Powell, JJ., concurring in plurality judgment), the Supreme Court has made clear that at the sentencing stage it is of paramount importance that the decision be individualized and based upon 1) the character of the individual defendant, and
2) the circumstances of the crime. Stephens, 462 U.S. at 879, 103 S.Ct. at 2744 (citing cases). If a state permits, under the
rubric of aggravating circumstances, “factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as ... race, religion, or political affiliation of the defendant____due process of law would require that the jury’s decision to impose death be set aside.” Id. at 885, 103 S.Ct. at 2747.
Here there can be no question but that the testimony was a calculated attempt, under the guise of permissible evidence of rebuttal or aggravation, Stephens, 462 U.S. at 878-79, 103 S.Ct. at 2743-44, to import into the deliberative process precisely the class-based biases Justice Douglas decried in Furman.12 There was nothing in Mr. *749Allen’s testimony that in any way elucidated the already well-developed circumstances of the crime.13 The testimony thus fails to meet Stephens’ requirement that it further an individualized determination of the appropriate sentence in light of the facts of the crime.
On the other hand, it could not but help inflame the prejudices and emotions of the jury to be confronted with a father’s testimony of the virtuous life of his white daughter violated and then mercilessly snuffed out by this black defendant. The prosecutor’s decision to sandbag this testimony until just prior to closing arguments, so that Mr. Allen was the last witness the jury heard, exacerbated the prejudice. The prosecutor sought, as Judge Kravitch so aptly put it in her dissent from the panel opinion, “not merely to let the jury know who the victim was, but rather to urge the jury to return a sentence of death because of who the victim was.” Moore v. Zant, 722 F.2d 640, 651 (11th Cir.1983) (emphasis in original). The result was based not upon reason, as the Supreme Court and the Constitution demand, but upon emotion.
The trial court justified admitting this information as relevant based upon testimony of one witness that the safe at the Majik Market did not appear to have been forced open suggesting, sotto voce, possible complicity in the crime by Teresa Allen. The court reasoned it was appropriate to have Mr. Allen testify as to his daughter’s character so as to rebut this possible defense. The panel opinion accepted this rationale. It noted that, while ordinarily “the peculiar characteristics of persons involved” is not a permissible basis for imposing the death penalty because it is “fraught with constitutional danger,” “where such characteristics are material to resolving a genuine issue in the case” such testimony may come before the fact finder. Moore, 722 F.2d at 646; accord Brooks, 762 F.2d at 1409 (“Any reference to such potentially prejudicial characteristics must be undertaken only with the greatest of care and only when the reference is relevant to some legitimate issue in the case.”).
The problem is that Moore never argued this defense in any way; thus it was not a genuine issue in the case. His defense was to maintain his innocence and lack of knowledge of the deed. He never suggested that Teresa Allen was in any way an accomplice with a crime that somehow went awry. The panel majority conceded that not only was the evidence for such a defense “slim,” id. at 645, but that “defense counsel did not make such an argument to the jury.” Id. at 645 n. 2. The panel majority held that though it was perhaps error, “[w]e cannot say that the trial judge’s balancing of the relevancy of Mr. Allen’s testimony against its prejudice was constitutionally faulty.” Id. at 646. I can and I do. It was clear error.
Subsumed in this claim is another issue: whether the prosecutor’s plea to the jury to impose the penalty of death as a deterrent to others14 constitutes reversible error. *750This too violates Stephens because it introduces questions of general applicability not related to the proper task of the jury: to render an individualized determination in the case at hand. 462 U.S. at 879,103 S.Ct. at 2743. The prosecutor here sought to induce the jury to strike a blow against crime and for deterrence by making an example of Moore. This is impermissible and unfair; it rises to the level of reversible error. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); Brooks, 762 F.2d at 1399.
I believe Moore has stated three further bases for relief. It was clear error to introduce the testimony of Ms. Allen’s father because it was completely irrelevant and extraordinarily prejudicial. It was a grave, gross error for the prosecutor to invite the jury to weigh the comparable worth of the two lives. The error was compounded by the prosecutor’s invitation to the jurors to make the streets safe again by putting Carzell Moore to death.
For the reasons foregoing, I must enter a partial dissent from the majority’s disposition of this appeal.
. The Court was careful to note, however, that such a defendant is not constitutionally entitled to choose a psychiatrist of his own personal liking or receive funds to hire his own. Rather the Court required only that he be provided access to a competent, independent psychiatrist to assist him in proving his defense. Ake, 470 U.S. at 83, 105 S.Ct. at 1097; see also Martin v. Wainwright, 770 F.2d 918, 933-35 (11th Cir.1985). This is because the constitutionally cognizable objective served by the provision of a psychiatrist’s assistance is greater accuracy in the judicial proceedings, not a greater likelihood *737that the defendant will succeed with his defense. See Ake, 470 U.S. at 77-83, 105 S.Ct. at 1094-97.
. Whether the defendant in fact would have benefitted substantially from the assistance of experts of his own is not free from doubt. Indeed, such expert testimony as was offered was less than conclusive, and both direct and cross-examination of the state’s expert witnesses amply demonstrated the limited and qualified nature of their opinions. A reading of this record persuades me that experts who might have been available to the defendant would have done little more to limit the force of the testimony of the state’s experts than the latter, in candor, did themselves. As my analysis indicates, however, I am willing to assume for the purposes of determining appellant’s constitutional claim that the assistance to which he now claims he was entitled in fact would have done him some good.
. In the state habeas proceeding on which the state relies in support of its argument that Moore has already received a full and fair hearing on the Brady/Giglio claim only the following version of the claim was presented to the state habeas court: "The trial court by overruling Petitioner’s motion to disclose to whom immunity had been disclosed [sic], and the prosecution by failing to disclose prior to trial to Petitioner that the crucial prosecution witness PASBY, had been promised or granted immunity from a previously suspended trial under the Georgia First Offender Act, deprived Petitioner of due process of law under the Fourteenth Amendment.” Count Six of petitioner’s amended state habeas petition (citations omitted). Thus the state habeas court was not presented with the claim that even if no deal was made, the probation report and information contained therein should have been disclosed under Giglio because it might have aided the defense in its impeachment of Pasby. As a result, it seems clear that Moore has not had a full and fair hearing on the Brady/Giglio claim he seeks to make here. The state habeas court could be said to have found that no deals were made, but could not reasonably be said to have found that no information favorable to the defense was withheld.
. The majority opinion assumes for the purpose of its analysis that Pasby could have been required to serve up to ten years in prison if his probation was revoked. See ante at n. 54. The court order placing Pasby on probation stated unequivocally that if he violated the terms of his probation he could be made to serve the remainder of his one year sentence that had been imposed. If the transcript of Pasby’s sentencing hearing would have indicated that Pasby was told he might be exposed to ten years of imprisonment upon violation of his probation rather than the remaining part of one, petitioner could have and presumably would have at least alleged as much. I see no reason to assume, for the purposes of determining whether petitioner has made out an entitlement to an evidentiary hearing, facts that are not even alleged.
. Other circuit courts have considered favorably the question of constitutional entitlement to non-psychiatric experts in capital cases. Williams v. Martin, 618 F.2d 1021, 1025-26 (4th Cir.1980) (“There can be no doubt that an effective defense sometimes requires the assistance of an expert witness____ Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system.”); Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir.1974) (“[T]he effective assistance of counsel guarantee of the Due Process Clause requires, when necessary, the ... appointment of investigative assistance for indigent defendants in order to insure effective preparation of their defense by their attorneys.”), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975); cf. Westbrook v. Zant, 704 F.2d 1487, 1494-97 (11th Cir.1983) (state must furnish psychiatric or psychological experts to indigent capital defendant if evidence not available from other sources is necessary to prove mitigating circumstances); Knott v. Mabry, 671 F.2d 1208, 1212-13 (8th Cir.1982) (failure of counsel to obtain expert to contradict government witness may constitute "constitu*742tional flaw in the representation of a defendant----"). The former Fifth Circuit considered this question in Hoback v. Alabama, 607 F.2d 680, 682 & n. 1 (5th Cir.1979), and said that, while there might be some situations where states could be required to furnish experts, that question need not be decided in that case.
. Nor can I accept the state’s assertion that in order to justify appointment of experts the defendant must present "concrete evidence ... as to specifically what other information he could have obtained by the use of an independent expert, that was not available to him by an examination of the state’s expert's [sic]____” Supplemental Brief of Appellee at 19-20. First, the Court in Ake imposed no such requirement of proof. Second, the state’s crabbed reading belies the tone and spirit of the Supreme Court’s holding. There was no evidence in Ake to suggest that the expert the defendant sought would necessarily contradict state experts. Nor was there evidence that his witness would provide evidence that was not available from other sources or from cross-examining state witnesses.
Experts are the “basic tools” necessary for the defendant to marshal his defenses. Experts assist, inter alia, in gathering and interpreting facts and drawing conclusions from them, in formulating strategies for cross-examining the state's experts, and in translating scientific jargon into terms understandable to the fact finder. Ake, 470 U.S. at 77-82, 105 S.Ct. at 1094-96. The Supreme Court’s concern was clearly more expansive than the state here admits.
. I note that the majority places upon the defendant the burden of informing the court whether the physical evidence and the related expert testimony would play an important role in the State’s case. This marks a significant modification of the Supreme Court's holding in Ake, which merely required the defendant to demonstrate "to the trial court that his sanity is likely to be a significant factor in his defense ....’’ 470 U.S. at 83, 105 S.Ct. at 1097 (emphasis supplied). Ake is properly read as requiring the defendant to show that from his perspective a given issue will be critical. Accord Bowden v. Kemp, 767 F.2d 761, 764 (11th Cir.1985). The majority requires him to offer evidence from the perspective of the prosecutor — an infinitely more difficult burden.
. Moore’s attorney did ask for assistance, in part, “in order that the defendant can test the validity of and accuracy of any tests which have been run by the State and the results of which may be introduced into evidence against the defendant at trial____” (emphasis supplied). This is at least suggestive that Moore’s attorney recognized that the physical evidence would be important to the state’s case and that he needed to be able to respond to it.
. The expert who examined the semen could only show that it came from someone of Moore’s blood group, a trait he shared with forty per cent of the male population.
. The microanalyst of the hair samples admitted on cross examination that ”[a]s to whether or not they [the two hairs from the towel] actually come from [a particular person] is impossible to determine in forensic science.” He further confessed that his attempts to match a hair sample with a particular individual are at best "right fifty-one percent of the time and wrong forty-nine percent of the time.”
. The majority intimates at the end of its discussion of this issue that any prejudice suffered by Moore through failure to appoint an expert to assist him was, in effect, harmless given that his attorney comprehensively cross-examined the state's witnesses and that he did not renew his motion at trial.
It is doubtful whether an adequate defense could be had simply by impeaching the witnesses and their findings during cross-examination. As the Supreme Court noted in Ake, expert testimony is often of exceptional persuasiveness to a jury. Even presentation of a contrary witness not billed as an "expert” is less effective. 470 U.S. at 81, n. 7, 105 S.Ct. at 1096, n. 7. Of course, the average juror would give even less credence to the naturally biased observations of defense counsel in cross-examining state witnesses or in making closing arguments. It is not enough to say that the defendant has the opportunity to respond. Rather, he must be assured of "a fair opportunity to present his defense.” Id. at 76, 105 S.Ct. at 1093 (emphasis added).
. See, e.g., Brooks v. Kemp, 762 F.2d 1383, 1394 n. 15 (11th Cir.1985) (en banc). Thus, for example, the Court today resolves both the Brady-Giglio claim and the Spivey error, granting relief on both grounds even though it could have remanded this case on either ground alone.
. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346-48, 56 S.Ct. 466, 480, 482-83, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
. The majority’s "dicta" rejects both of these claimed justifications.
. This presents a mixed question of law and fact. Factual determinations attendant on a habeas petition are presumed correct under 28 U.S.C.A. § 2254(d) (1985). But the "presumption of correctness does not apply to legal findings or to mixed questions of law and fact,” that is, "‘the application of legal principles to the historical facts of [the] case.'” Hance v. Zant, 696 F.2d 940, 946-47 (11th Cir.) (brackets in Hance) (quoting Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980)), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), modified on other grounds, Brooks v. Zant, 762 F.2d 1383 (11th Cir.1985) (en banc). In such cases, the "Judge must exercise his own judgment on this blend of facts and their legal values." Brown v. Allen, 344 U.S. 443, 507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). In a capital case "the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.” Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983).
. In his closing, the prosecutor argued as follows:
Now, I sympathize with someone that’s [sic] lacked a father; I was fortunate enough to have one and I sympathize as far as Mrs. Moore is concerned about her son, but there is no way that parents today can predict how their children are going to come out, all they can do is the best they can. And I certainly don’t think that Carzell Moore is due any sympathy from you Lady and Gentlemen for having a good mother---- Now, on the other hand, you’ve got the Allens. The family is here, all of them. You’ve seen them in Court, the Courtroom has been full of them. They’ve come up here in the interest of their loved one just like Mrs. Moore comes in the interest of her loved one. So, the reason for putting up to Mr. Allen, I wanted you to find out something about Teresa just as Carzell related something about himself.
******
Now, when you talk about useless killings, and I think this killing was absolutely useless, there is absolutely no mitigation, no mitigating circumstances whatsoever____ There was absolutely no reason in the world for this young girl to have been killed, and I think if you’re going to discuss sympathy for Carzell Moore, then you ought to certainly think about what Mr. Allen said about the girl having been an honor graduate in high school, helping her parents by working, trying to earn a living and get a decent education, better *749herself, help her folks and here her life is ended at age eighteen, by someone who displays no more emotion and no more feeling, than to come in here to Court and just absolutely deny one hundred percent something that you, Lady and Gentlemen, know that he did and know full well that he did.
R.Exh. 5-808-09, 811.
. The trial court's ruling that Mr. Allen’s testimony could be admitted was also premised on the belief that it would be limited to cumulative information that had come in at trial. In this way it would be a mild rebuttal of sorts to Mrs. Moore’s testimony on behalf of her son and the hardships of his life. But in fact the testimony elicited went far beyond what came in before. Here, as elsewhere, the state trial judge seemed to have difficulty controlling the prosecutor.
. The prosecutor argued as follows:
They talk about it not being a deterrent in crimes like this and they talk about it being a deterrent; factors that play a part as to whether or not people will commit crimes of this nature if they knew the punishment that would naturally follow the consequences of their act, and that is, if people knew at the time, would they do senseless crimes of this nature where there is absolutely no reason and no justification, no mitigation whatsoever and if the death penalty is not imposed in cases like this, then what is the reason — [objection]
******
Well, I submit to you then, Lady and Gentlemen, in this particular case that if the death penalty is not imposed, then it is not a deter*750rent and that you might as well just kill the witnesses, that you can just get by with it because there’s nothing else going to happen to [you], but you get a life sentence and you might as well just kill them all. [objection]
R.Exh. 5-814, 816.