dissenting:
The most difficult issue in this appeal is whether we must vacate the death sentence imposed in the second sentencing proceeding because the prosecutor’s argument was impermissible under the Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). There are really two questions to decide, as Judge Anderson’s opinion for the majority recognizes: Was there an impermissible prosecutorial argument? And, if so, under the proper standard of review, is reversal required? I would hold the prosecutor’s argument violated the rule announced in Caldwell, and that under the standard of review explicitly expressed in that case, we are required to adjudge the death penalty invalid and enjoin the execution of Hopkinson. This would be without prejudice to further proceedings by the State of Wyoming to redetermine the sentence on the Green murder conviction.
A. Improper Prosecutorial Argument
In Caldwell, the Supreme Court vacated a death sentence imposed after the prosecuting attorney argued to the jury that it did not bear ultimate responsibility for imposing the death sentence because its verdict would be reviewed on appeal. The improper argument in Caldwell proceeded as follows:
“ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to be brief. I’m in complete disagreement with the approach the defense has taken. I don’t think it’s fair. I think it’s unfair. I think the lawyers know better. Now, they would have you believe that you’re going to kill this man and they know— they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet they ...
COUNSEL FOR DEFENDANT: Your Honor, I’m going to object to this statement. It’s out of order.
ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their argument, they said this panel was going to kill this man. I think that’s terribly unfair.
THE COURT: Alright, go on and make the full expression so the Jury will not be confused. I think it proper that the jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.
ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said ‘Thou shalt not kill.’ If that applies to him, it applies to you, insinuating that your decision is the final decision and that they’re gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him *1234up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and I think it’s unfair and I don’t mind telling them so.”
Caldwell, 472 U.S. at 825-26, 105 S.Ct. at 2637-38.
Throughout the Caldwell opinion the Court demonstrated its concern that these uncorrected statements rendered the death sentencing process unconstitutional. The Court noted several specific dangers that such arguments pose: First, the jurors might not realize that most appellate courts review such sentencing determinations with the presumption that the jury verdict is correct; thus, jurors might underestimate the importance of their role in the imposition of death sentences. Id. at 330-31, 105 S.Ct. at 2640. Second, a jury, believing that an appellate court would correct any excesses, “might ... wish to ‘send a message’ of extreme disapproval for the defendant’s acts,” id. at 331, 105 S.Ct. at 2641, by returning a verdict of death. Third, prosecutorial arguments of this nature bias juries toward imposing death sentences out of a desire to delegate to the appellate court the responsibility of deciding whether the death penalty is appropriate: “[Cjorrectly assuming] that a sentence of life in prison could not be increased to a death sentence on appeal,” jurors who are reluctant both to impose and to rule out the death sentence might believe that they effectively could abstain by imposing the death penalty and leaving it to the appellate court to make the final choice. Id. at 332, 105 S.Ct. at 2641. Finally, such an argument might induce jurors, confronted with the “very unfamiliar situation” of serving on a capital sentencing jury, to minimize the importance of their role and in effect to defer to the appellate court’s judgment of whether the death sentence should stand. Id. at 332-33, 105 S.Ct. at 2641.
Because the prosecutor’s argument created these dangers of systematic bias toward imposing the death penalty, the Court condemned the argument and reversed the death sentence in Caldwell. However, as post-Caldwell decisions in this circuit demonstrate, Caldwell does not require a death sentence to be reversed in every case in which a prosecutor attempts to overcome jurors’ misgivings about the death penalty or refers to the reviewability of a jury’s sentencing determination. In Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987), this court reviewed a prosecutorial argument containing remarks “somewhat analogous” to those in Caldwell. There, the prosecutor argued to the jury:
“[Tjhey try to put the responsibility on you, like it’s all your fault.... [L]et me make it real clear that you’re not writing the verdict in this case. Don’t — don’t be mistaken into believing that it’s your responsibility that this happened, that you’re, you’re writing the verdict. I, I say to you, this man wrote the verdict on February 9th, and all those days after when he got out of jail and went on [sic] spree of knifing and kidnapping and killing. He wrote the verdict. This man. He wrote it in blood over and over.”
Id. at 1240. Although the prosecutor did say to the jury, “[Y]ou’re not writing the verdict in this case,” we found that “the dangers the Court identified in Caldwell are not present in the remarks made here.” Id. We noted that the prosecutor’s argument did not “permit the jury to rely on someone else to make the ultimate sentencing decision or otherwise dilute or trivialize the jury’s responsibility.... Instead, it only brought into focus that defendant is responsible for his own plight.” Id. at 1240-41. We also examined the context of the prosecutor’s argument and found it “evident that the prosecutor had no intention of diminishing the jury’s sense of responsibility.” Id. at 1241.
In Dutton v. Brown, 812 F.2d 593 (10th Cir.) (en banc), cert. denied, — U.S.-, -, 108 S.Ct. 116, 197, 98 L.Ed.2d 74, 149 (1987), the defendant objected to the following statements by the prosecutor:
“[Defense counsel] argues that the final decision is yours, and of course, to some *1235degree it is. But you are, as I am, as Judge Theus is, as all the courts are, part of the process. We are not functioning as individuals....
And we are all part of the law and it is the law that makes us work. So it has to be in that attitude, in that frame of mind, that you approach the problem.”
Id. at 596. As in Coleman, we analyzed the prosecutor’s statement in context and found that it did not violate Caldwell. We held: “The statement was not designed to, nor did it, suggest to the jury that it was not ultimately responsible for deciding Mr. Dutton’s punishment. The prosecutor merely underscored that the jury was part of the whole system of justice, and within that system it had a grave responsibility.” Id. at 597. Coleman and Dutton demonstrate that, when we face a claim that a prosecutor’s argument violates Caldwell, we must view the prosecutor’s statements in context and in light of the Caldwell Court’s specific concerns about prosecutorial arguments of this type.
In the case before us, the prosecutor made these statements in the rebuttal part of his closing argument immediately before the case was submitted to the jury:
“Another matter, they [defense counsel] talked about the possibility of error. There is no such thing as perfection. This system works to the best it can, but there are safeguards built in. That’s due process. The Wyoming Supreme Court, as Mr. Munker said, reviewed the first trial. They found no error in the guilt phase. That went to the United States Supreme Court, and it was denied cert.
MR. SKAGGS: Objection, your Honor. There is flatly no evidence of that and if I can’t bring in something there is no evidence of, he can’t either.
MR. MORIARITY: Well—
THE COURT: Now, let me try and handle it. The jury has heard a lot of statements in closing arguments with reference to matters which technically there is no evidence on. And I won’t talk about who said what, that’s strictly up to you. But I have given everybody wide latitude and I’m not going to stop now. The jury will just sift it out.
MR. MORIARITY: Thank you, your Honor.
The testimony of Mrs. Barbara Oakley, the clerk of this court, when I asked her if the guilt phase had gone to the United States Supreme Court and had come back from them prior to this testimony, she said, yes, the record revealed that. That is the facts in this case. But the Wyoming Supreme Court sent it back because of error in the first trial on the death penalty as it pertained to the Jeff Green matter. The Wyoming Supreme Court will review whatever action you take in this case. It’s an automatic review. So, the matter of error, the matter of mistake is not one for us to be concerned with here. Judge Ranck has done his best, his duty to instruct you on the law. We have given you the facts from the witness stand as best we can. You have to do your duty as best you can, and I’m sure you will. But, because of some possibility of error, they say don’t give him the death penalty. That’s not what the law is. It’s nowhere in your instructions from the Court.”
IX-F R. 1246-48 (emphasis added). This argument was presented in response to defense counsel’s assertions that the jury should not impose the death penalty because the prosecution’s witnesses had been mistaken about some of the evidence, see id. at 1215-18; because of the possibility that an innocent person might be executed, id. at 1289 (“I think probably the most compelling argument, though, against the death penalty, is the possibility of mistake; and I’m sure that most of you have read that throughout ... recorded history there have been executions and it has came [sic] to light afterwards that individuals had not committed the crimes they had been charged with.”); and because of the possibility of a legal or procedural mistake during the sentencing hearing, see id. at 1203, 1214.
This is a particularly difficult case because one possible understanding of the remarks is that they refer only to trial *1236errors being corrected upon appeal. But in my view the remarks also may be understood to convey that the appellate court will second-guess the evidence and can grant relief from the death sentence. See Wheat v. Thigpen, 793 F.2d 621, 627-29 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987). On balance, I believe that the prosecutor’s remarks, by representing to the jury that it should not concern itself with the possibility of error because any error would be corrected on appeal, impermissibly diminished the jurors’ sense of personal responsibility for the verdict and thereby “rendered the capital sentencing proceeding inconsistent with the Eighth Amendment’s heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” Caldwell, 472 U.S. at 323, 105 S.Ct. at 2636 (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion)). The facts of this case resist any principled differentiation from those of Caldwell. As in Caldwell, the prosecutor told the jury that its verdict would be reviewed automatically by the state supreme court; here, the prosecutor even went beyond the offensive remarks in Caldwell by specifically telling the jury that “the matter of mistake is not one for [you] to be concerned with here.” See Wheat, 793 F.2d at 629 n. 8. As in Caldwell, despite defense counsel’s objections, the trial judge did not correct the prosecutor’s statements, but allowed them to stand.
The state argues that the jury was “adequately instructed concerning the significance of their role and the sentencing procedure.” Brief of Respondents-Appellees at 56. Yet I do not believe that the jury instructions cured the Caldwell violation. Although the jury was instructed, “You are not merely recommending a sentence to the Judge. You are the final decision-makers as to whether Mark Hopkinson will be sentenced to life in prison or to death,” YI-H R. 699 (Instruction 8), this instruction did not address the misleading nature of the prosecutor’s argument: the prosecutor argued to the jury that any mistake would be rectified on appeal, and the trial court did not correct this statement. The court failed to inform the jury that mistakes in weighing the evidence could be corrected only if no reasonable jury could have found the aggravating circumstance to exist and the mitigating circumstances to be absent.1 Consequently, as in Caldwell, “[although ... subsequent remarks ... may have helped to restore the jurors’ sense of the importance of their role, ... they failed to correct the impression that the appellate court would be free to reverse the death sentence if it disagreed with the jury’s conclusion that death was appropriate.” 472 U.S. at 343, 105 S.Ct. at 2647 (O’Connor, J., concurring in part and concurring in the judgment).
I would conclude, therefore, that the dangers that Caldwell found inherent in such arguments are also present in the instant case. The jury was told not to concern itself with the “possibility of error” because its decision would be reviewed. It was not instructed that the Wyoming Supreme Court would employ a presumption of correctness in conducting this automatic review, and consequently might have assumed that the reviewing court would consider de novo the propriety of capital punishment in this case. I cannot be confident that this jury, after hearing this uncorrect*1237ed prosecutorial argument, fully appreciated its responsibility to determine that death was the appropriate punishment.
B. Standard of Review
Because I would find a Caldwell violation, I must also address the standard of review to be applied. The Eleventh Circuit, in an en banc split decision, adopted a fundamental fairness standard for Caldwell violations. Tucker v. Kemp, 802 F.2d 1293, 1295-96 (11th Cir.1986) (en banc), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987). To make that determination, the court stated that the inquiry, derived from the “prejudice prong” of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is whether there is “ ‘a reasonable probability that, in the absence of the offending remarks, the sentencing outcome would have been different’.... A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.’ ” Tucker, 802 F.2d at 1295-96 (quoting Tucker v. Kemp, 762 F.2d 1480, 1483-84 (11th Cir.1985)). A divided Fifth Circuit panel recently stated the proper standard of review to be whether the Caldwell remarks were “error that so infected the trial as to deny due process.” Sawyer v. Butler, 848 F.2d 582, 599 (5th Cir.1988) (footnote omitted). I note that the Fifth Circuit has voted to reconsider that decision en banc. See id. at 606.
With respect, I believe the standards of review applied by these cases are wrong, and that the dissenting opinions in Tucker and Sawyer correctly analyze the requirements for reversal for Caldwell error. In Caldwell, the Court did not require the petitioner to prove actual prejudice; indeed, the limitations of the appellate process and the rules against polling jurors would effectively preclude any such proof. Rather, Caldwell evaluated, in the context of the prosecutor’s argument and the court’s instructions to the jury, the inherent tendency of the improper remarks “to minimize the jury’s sense of responsibility for determining the appropriateness of death.” 472 U.S. at 341, 105 S.Ct. at 2646. Caldwell’s concern with the jury’s decision-making process approaches a per se rule of reversal: violations can be overlooked only if a reviewing court can conclude with confidence that they had “no effect on the sentencing decision,” id. (emphasis added), a standard far less forgiving than the Fifth and Eleventh Circuits’ standards.
Tucker and Sawyer both cited a post-Caldwell Supreme Court decision, Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), as support for their standards. But Darden did not alter the “no effect” standard applied in Caldwell; if anything, it reinforced that standard: “In this case, none of the [prosecutor’s] comments could have had the effect of misleading the jury into thinking that it had a reduced role in the sentencing process.” Darden, 477 U.S. at 184 n. 15, 106 S.Ct. at 2473 n. 15 (emphasis added).2 Tucker and Sawyer both treated the “no effect” statement in Caldwell as dictum, throwaway language. But the dissenting opinion in Sawyer clearly illustrates that the Court recognized that the majority in Caldwell indeed was establishing a rule applicable in the sentencing proceeding different from that applied to the guilt phase of trial. Sawyer, 848 F.2d at 603 n. 4 and 5 (King, J. dissenting).3
*1238Further support for a strict standard of review comes from the recent Supreme Court decision in Mills v. Maryland, — U.S.-, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Mills involved an ambiguous jury-instruction used during the capital sentencing phase of trial, where one reading of the instruction would have rendered a death sentence improper. The Court reversed, finding the mere possibility of such an error sufficient:
“The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case. The possibility that petitioner’s jury conducted its task improperly certainly is great enough to require resentencing.”
Id. at-, 108 S.Ct. at 1870. The Court’s focus on possibility rather than probability of error reinforces my reading of Caldwell and Darden and my rejection of the Tucker and Sawyer standards of review.
In fairness to the court and counsel, the sentencing proceeding was three years before Caldwell was decided, and overall the court and counsel on both sides did a remarkable job. But as reluctant as I am to force a third sentencing trial, I cannot say that the prosecutor’s remarks “had no effect on [the jury’s] sentencing decision,” Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646.4 Therefore, I would hold that Hop-kinson’s death sentence was imposed in violation of the Eighth Amendment and must be vacated.
. In addressing this issue the Wyoming Supreme Court relied upon Justice O’Connor's concurring opinion in Caldwell, which was necessary to achieve a majority. See Hopkinson VI, 708 P.2d at 48. As the Wyoming Supreme Court noted, Justice O'Connor would permit accurate information regarding appellate review to be submitted to the jury. Caldwell, 472 U.S. at 342, 105 S.Ct. at 2646. But she made clear that to be acceptable such information would have to include an explanation of the limited nature of such review. Id. at 342-43, 105 S.Ct. at 2646-47.
I do not dispute the Wyoming Supreme Court’s interpretation of Justice O’Connor's concurrence. Her opinion is consistent with the plurality opinion’s position that any reference to appellate review which does not inform the jury of the presumption of correctness applied by appellate courts is misleading and thus improper. The Wyoming Supreme Court, however, overlooked the failure of the court or prosecutor to inform the jury properly about the limited nature of appellate review.
. See also the Court’s comment:
“This Court held that such comments ‘pre-senil] an intolerable danger that the jury will in fact choose to minimize the importance of its role,’ a view that would be fundamentally incompatible with the Eighth Amendment requirement that the jury make an individualized decision that death is the appropriate punishment in a specific case...."
Darden, 477 U.S. at 183 n. 15, 106 S.Ct. at 2473 n. 15.
. Darden itself distinguished Caldwell, stating:
“The principles of Caldwell are not applicable to this case. Caldwell involved comments by a prosecutor during the sentencing phase of trial to the effect that the jury’s decision as to life or death was not final, that it would automatically be reviewed by the State Supreme Court, and that the jury should not be made to feel that the entire burden of the defendant’s life was on them....
"... In this case, the comments were made at the guilt-innocence stage of trial, greatly reducing the chance that they had any effect at all on sentencing.... Caldwell is relevant *1238only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision. In this case, none of the comments could have had the effect of misleading the jury into thinking that it had a reduced role in the sentencing process.”
477 U.S. at 183 n. 15, 106 S.Ct. at 2473 n. 15.
. Judge Anderson, for the panel majority, indicates that no Supreme Court decision other than Caldwell has stated a “no effect" standard of review. Although Skipper v. South Carolina, 476 U.S. 1, 8, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1 (1986), does contain the "under any standard” language quoted, I believe it adopts a "no effect" standard of review for errors in the admission of mitigating evidence in a death sentencing proceeding by stating, in the crucial paragraph of the opinion: “Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect on the jury’s deliberations." Id. at 8, 106 S.Ct. at 1673 (emphasis added).