concurring and dissenting.
“[HJard cases ... make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1903) (Holmes, J., dissenting). Capital punishment, because it receives an attention far out of proportion to its usefulness in the criminal law, exerts a “hydraulic pressure” on courts. Cf. id. at 401, 24 S.Ct. at 468. This is a hard case because a 21-year old woman was murdered and society rightfully insists that someone pay for the crime. Justice demands, however, that constitutional standards be followed in obtaining and sustaining a conviction. Blair advances three meritorious reasons why the district court’s judgment denying the writ of habeas corpus should be set aside.
First, the prosecution knowingly introduced false testimony at trial to prevent the impeachment of the state’s chief witness, Ernest Jones, violating Blair’s due process rights under the fourteenth amendment.
Second, the trial court erred by not giving the jury an instruction on first-degree murder as an alternative to the charge of capital murder. This decision, as affirmed by the Missouri Supreme Court, violated Blair’s equal protection and due process rights.
Third, Blair’s sentencing hearing was compromised by the prosecutor’s inflammatory closing argument: he told the jury that they should sentence Blair to death because it was cheaper to kill him than to incarcerate him; he improperly made reference to Blair’s assertion of his constitutional rights; and he emphasized to the all-white jury, from which he had struck four black candidates, the difference in race between the “attractive” sympathetic victim and “this black man.” This argument violated the eighth amendment and the equal protection clause of the fourteenth amendment.1
*1334I.
Walter Blair was convicted of capital murder at age twenty. The jury found that he accepted a contract to kill a witness expected to testify in the rape trial of Larry Jackson. The evidence of the formation of this contract came exclusively from the testimony of Ernest and Sharon Jones. The Joneses testified that Blair made statements prior to the homicide evidencing premeditation and that as further evidence of premeditation, Blair kept the victim’s driver’s license to show the Jackson family to collect his money. In his statements to the police, however, Blair confessed to kidnapping the victim so that she would not testify at Jackson’s trial. In the statements, Blair alleges that he killed her when she later resisted and tried to escape. The State introduced circumstantial evidence which established that Blair was at the victim’s house when she was kidnapped. Forensic testimony established that the shots were fired at close range. The murder weapon was found at the apartment of Blair’s girlfriend. There was no evidence of any change in Blair’s net worth.
Blair’s theory at trial was that Ernest Jones killed the victim; that Ernest Jones framed Blair; and that the police, believing that Blair was the right man, engaged in questionable tactics to get a conviction. In particular, Blair was able to show that the murder weapon had been stolen five years previously by Ernest Jones. Trial transcript, vol. 6 at 2163-65. The victim’s boyfriend, who had been with her when she was kidnapped, identified Ernest Jones as the kidnapper in a police lineup. Id., vol. 4 at' 1109-12. Ernest Jones and his brother, Fred, pawned the boyfriend’s ring, which was taken at the time of the victim’s abduction. Id. at 1430. The police traced Fred Jones from the pawn shop. Fred Jones was arrested and initially gave Ernest Jones’ name in connection with the ring; he did not mention Blair. Id. at 1433. The police arrested Ernest Jones for murder. It was only after the lineup that Ernest Jones implicated Blair. Id., vol. 5 at 1519.
At trial, Blair testified that he had signed the statements written by the police only because of their interrogation tactics. There was testimony- that the police were angry about this case because the victim had previously asked for their protection and they had refused, leading to bad publicity and public pressure after the homicide. Id., vol. 6 at 1850-52. Blair testified that after his arrest, he repeatedly requested a lawyer, but the police refused. Id. at 1994, 1997-98. One police officer allegedly put a gun to Blair’s head. Id. at 1999-2001. A second officer interceded and told Blair that they only wanted him to implicate Jackson. Id. The same officer said that they had seven witnesses who could name Blair as the murderer if he would not talk. Id. at 2002. They threatened charging his girlfriend with murder. Id. at 2003-04. Finally, they offered a deal for twelve years incarceration if he would testify against Jackson and promised they would draft a statement that would result in his being incarcerated for twelve years. Id. at 2005. In the statement, Blair confessed to felony murder. After signing the prepared statement, but before giving a similar video statement, Blair encountered his attorney in a hallway. Blair identified his lawyer to the prosecutor and the police, but Blair and his lawyer were physically separated by the prosecutor and the police.2
The jury disbelieved Blair and convicted him of capital murder. In a second stage of the proceeding, the jury voted for the death penalty. Blair’s conviction was affirmed on appeal, State v. Blair, 638 S.W.2d 739 (Mo.1982) (en banc), and his conviction became final on January 24, 1983 with the denial of certiorari. Blair v. *1335Missouri, 459 U.S. 1188, 103 S.Ct. 838, 74 L.Ed.2d 1030 (1983). His state post-conviction petition was denied after a hearing. The district court denied Blair’s habeas petition without a hearing. Blair v. Armontrout, 643 F.Supp. 785 (W.D.Mo.1986).
I note that the jury did not have all the relevant information before it at the guilt stage. First, Blair’s defense attorneys failed to call two witnesses listed in police reports as present near the homicide scene. One would have given a description of a man fleeing the scene consistent with that of Ernest Jones and a description of the fleeing man’s clothing inconsistent with the State’s evidence of Blair’s attire that day. Blair v. Missouri, No. CV83-6637, 27.26 hearing transcript at 163, 183-84 (Mo.Cir.Ct. June 20, 1983) (post-conviction review).3 Second, the jury did not know that some of the testimony of the State’s star witness, Ernest Jones, was perjured. I begin by examining the perjured testimony.
II.
The State’s chief witness, Ernest Jones, perjured himself at trial with the knowing complicity of the prosecutor. He testified that no deal had been made with respect to pending charges against him in exchange for his testimony. In fact, leniency promises were made to Jones before trial. The state court reviewing Blair’s post-conviction petition, however, found that there was no “deal,” and the majority accepts this “fact finding.” Both áeem to accept the erroneous premise that promises of leniency do not constitute a deal that must be disclosed to the defense. Even where some of the terms of a deal remain undecided, however, promises of leniency must be disclosed. Moreover, there is evidence that the prosecutor deliberately deceived the trial court and the defense to minimize the impeachment of Jones.
A.
Ernest Jones testified that Blair had always planned to kill the victim. Trial transcript, vol. 5 at 1472-73. This testimony supplied the evidence of premeditation necessary for capital murder. At the time of trial, Jones was on probation for a prior burglary conviction and was under indictment for assault in the first degree, burglary, and drug possession. Id. at 1499. These pending charges could have led to a sentence of twenty years or life. Missouri v. Jones, No. Cr 80-02916, sentencing tran*1336script at 2, 9-10 (Mo.Cir.Ct. Nov. 24, 1980); Mo.Ann.Stat. §§ 557.021, 565.050, 569.160, 195.202 (Vernon 1979 & Supp.1990).
The defense asked for disclosure of any deals or promises made with respect to Ernest Jones’ pending charges. Trial transcript, vol. 1 at 346; 27.26 transcript at 128. No deals or promises with respect to the pending charges were revealed before or during trial. It was disclosed immediately before trial that Jones would not be charged as an accomplice for pawning the boyfriend’s ring and that his probation would' not be revoked for this act. At trial, Jones testified under questioning from the prosecution that no deals were made with respect to the charges for which he was under indictment. Trial transcript, vol. 5 at 1498.
One month after Blair’s trial ended, a plea bargain was recorded in the pending cases against Ernest Jones by one of the prosecutors from Blair’s trial, Bell, in front of the judge who had presided over the Blair trial. The State dismissed the narcotic charges, reduced the assault charges to a class B felony with a recommendation of three years probation, and recommended no revocation of Jones’ then current probation. Missouri v. Jones, sentencing transcript at 2-3.4 Bell explained to the court that his lenient recommendation was motivated by the cost of incarcerating Jones out of state and .by Jones’ cooperation in the Blair case:
[H]e was one of the State’s star witnesses in State of Missouri versus Walter Blair.
I had several discussions with Mr. Jones and his attorney prior to his testifying, telling him that I thought for tactical reasons it would be better not to discuss the specifics of a plea bargain in this case, but that I would make sure and recommend a lenient disposition of this case in exchange for his probation — or words to that effect — or in exchange for his cooperation. Words to that effect.
... [T]he court will recall the testimony and the cooperation of Mr. Jones in State of Missouri versus Walter Blair. THE COURT: I’m reluctant to do so but except for what happened in the Blair case I wouldn’t be willing to go along. But I have intimate knowledge of what took place in that case and I do remember Mr. Jones’ testimony.
Id. at 4-7 (emphasis added). The court accepted the plea bargain and Jones did not receive any jail time for any of the offenses.
Blair again raised the possibility of an undisclosed deal between the State and Jones at Blair’s state post-conviction hearing. Jones’ attorney, Assistant Public Defender Peter Sterling, testified that he discussed Jones’ situation with Bell before Blair’s trial. When asked if he reached an agreement with Bell, Sterling replied “yes and no.” 27.26 transcript at 63. According to Sterling, Bell indicated:
that Mr. Jones was going to be a witness against Walter Blair and therefore we weren’t, between us, going to have any certain problems in. the case working it out but that he did not want to enter into any specific agreement at that time because of Mr. Jones’ status as a State’s witness.
Id. at 64. The State then objected to any further references to a deal, arguing that Sterling had testified that there was none. The court asked Sterling: “Did you reach any agreement?” Id. Sterling replied: “I would, Your Honor, call it a tacit agreement based on my working relationship with Mr. Bell and we have had numerous serious cases together.” Id. The Court asked for clarification. “THE WITNESS: In other words, there was no words spoken from which one could state that there was a contract. It was unspoken understanding that at the conclusion of, Mr. Bell — THE COURT: Well, I’m going to sustain the objection at that point, thank you.” Id. at 65. The court did not let Sterling finish his answer or let him de*1337scribe upon what elements of their working relationship Sterling relied.
Sterling was allowed to testify that he told Jones that Bell had not agreed to a specific plea bargain, but that based on their conversations regarding Jones and on Sterling's past dealings with Bell, Jones could expect leniency and no jail time. Id. at 67-68; accord id. at 71; (advice given to Jones that he would not go to jail was not “speculative” in Sterling’s view) (offer of proof). Sterling was asked: “Did you feel that you had an understanding with Mr. Bell that your client would not go to the penitentiary? A. Yes I did.” Id. at 68; accord id. at 72 (offer of proof); id. at 81 (“I believe there was an understanding. There was no specific plea agreement until after the trial.”); id. at 88-89 (understanding that Jones would not go to the penitentiary). When asked which factors influenced his judgment, Sterling replied, “Well there was what you might call custom and practice.... Probably the main thing that entered into my impressions of what we were doing is my working relationship with Mr. Bell based on experience working with him through dozens of cases.” Id. at 69-70. The court sustained the State’s objection to further questions exploring their working relationship and their agreements in past cases. Id. at 71.
Next, Blair attempted to offer evidence of similar conduct by Bell in Missouri v. Patterson, 618 S.W.2d 664 (Mo.1981) (en banc). In Patterson, Bell had agreed to drop burglary charges against the State’s chief witness, Woodcox, but refused to disclose the deal to the defense. The court sustained the State’s objection to the introduction of the Missouri Supreme Court opinion in Patterson, reversing the conviction for Bell’s failure to disclose the agreement, and sustained objections to Wood-cox’s testimony about his dealings with Bell. 27.26 transcript at 75, 119-20. Sterling, it turns out, represented Patterson in that case and later represented Woodcox in his burglary case. Id. at 75, 77. The court sustained the State’s objection to the cross-examination of Sterling with respect to his dealings with Bell in the Patterson case. Id. at 76. The court also excluded testimony from Blair’s trial lawyer, who had cross-examined Jones, on how knowledge of the deal would have affected his strategy, questioning, and presentation. Id. at 94-95. The State called Jones, who testified that he had never discussed with Sterling or Bell exchanging his testimony for leniency. Id. at 160.
The state court found that it was not until after Blair’s trial that Bell entered into a specific plea agreement with Jones’ lawyer setting forth the number of years of probation Jones would receive. Blair v. Missouri, No. CV83-6637, 27.26 Order at 3 (Mo.Cir.Ct. July 7, 1983). The court found that no deals were made in this case and that there was no prejudice. Id. at 9-11. The Missouri Court of Appeals accepted this conclusion. Blair v. State, No. WD 35053, Mem.Op. at 2-4 (July 31, 1984).
The federal district court did not adopt or reject the state court fact finding, noting that Jones’ testimony that he was unaware of any leniency promises was contradicted by the sworn statements of Bell and Sterling. 643 F.Supp at 787. Instead the district court decided that, based on the state court record, there was no prejudice. Id. at 788. The majority criticizes this approach and does not reach the issue of prejudice. Instead, the majority adopts the state court fact finding and concludes that there was no deal. Ante at 1317 n. 7.
B.
On collateral review, we accord a rebut-table presumption of correctness to state court factual determinations. 28 U.S.C. § 2254(d) (1982). We do not accord this presumption to a state court’s legal rulings or to state court conclusions on mixed questions of law and fact. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam). We also do not accord a presumption of correctness to state findings where the material facts were not adequately developed at the state court hearing; where the applicant did not receive a full, fair, and adequate state hearing; or where the findings *1338are not supported by the record. 28 U.S.C. § 2254(d)(3), (d)(6), (d)(8).
We should not accept the state findings in this case. First, the finding that there was no deal is a mixed question of law and fact. It requires a legal conclusion as to what constitutes a “deal” which must be disclosed to the defense. Second, the evi-dentiary rulings at Blair’s post-conviction hearing deprived him of a full and fair hearing, and crucial state findings are not supported by the record. The evidence supports the view that Bell deliberately conducted his negotiations with a wink and a nod in order to avoid damaging impeachment.
Initially, I accept the majority’s description of the difference between fact questions and mixed questions of law and fact. Fact-finding involves deciding which events will occur or have transpired in the past, while “[mjixed questions involve ‘the application of legal principles to the historical facts of [a] case....’” Ante at 1318 (quoting Cuyler v. Sullivan, 446 U.S. 335, 342, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980)). In this case, the state post-conviction court’s finding that there was no deal rests on its erroneous view that a deal must be a finalized and specific agreement between the prosecution and a witness before it must be disclosed to the defense. 27.26 transcript at 64-65 (rejecting notion of a tacit agreement).
The state is usually in a far better position than a defendant to collect evidence. Because the state’s primary interest is in justice, not convictions, it must disclose material evidence favorable to the defense. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution withheld a statement by Brady’s companion wherein he confessed to the killing for which they were both separately tried. The Supreme Court elaborated on the prosecutorial disclosure required by the due process of law. “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. at 1196. The state must disclose material evidence tending to impeach any of its own witnesses. Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Librach, 520 F.2d 550, 553 (8th Cir.1975) (concealment of payments made to witness); accord United States v. Kiszewski, 877 F.2d 210, 215-16 (2d Cir.1989); United States v. Shaffer, 789 F.2d 682, 687-89 (9th Cir.1986); see also Mo.R.Crim.Pro. 25.-03(A)(9) (disclosure required of any information which tends to negate the guilt of the defendant or mitigate the degree of the offense charged).
Giglio and its progeny firmly establish that even leniency promises must be disclosed, because such promises provide a strong motive for witnesses to testify according to government expectations. In Giglio, the government’s witness testified that he had not been promised leniency in exchange for his testimony. The United States Attorney who tried the case, however, told the witness that he would definitely be prosecuted if he did not testify and that if he did testify, the witness would be obliged to rely on the good judgment of the Government. Giglio, 405 U.S. at 152-53, 92 S.Ct. at 765-66. The Court reversed Giglio’s conviction for the failure to disclose leniency promises made by the United States Attorney and by an assistant, noting that even the statement by the United States Attorney supported the existence of a leniency agreement. Id. n. 4. See also Napue v. Illinois, 360 U.S. 264, 267-68, 79 S.Ct. 1173, 1176, 3 L.Ed.2d 1217 (1959) (holding that the prosecution should have disclosed promise of some reduction in sentence for favorable testimony). In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the prosecution promised two witnesses payment if it was satisfied with their testimony. The Supreme Court held that the promises should have been disclosed even though the money was not “guaranteed.”
The fact that the stake was not guaranteed through a promise or binding contract, but was expressly contingent on the Government’s satisfaction with the *1339end result, served only to strengthen any incentive to testify falsely in order to secure a conviction. Moreover, the prosecutor disclosed affidavits that stated that O’Connor and Mitchell received no promises of reward.... [T]he natural effect of these affidavits would be [to] mislead....
Id. at 683-84, 105 S.Ct. at 3384. These Supreme Court opinions have been repeatedly understood to require disclosure of leniency inducements strong enough to motivate false testimony.5 It was well established at the time of trial that prosecutors could not avoid disclosure by softening the edges of their promises with some vagueness.6
In light of these cases, it is clear that the state courts misunderstood the prosecution’s disclosure responsibility. There was an understanding between the parties that should have been disclosed, even if the probation terms were left unspecified. Bell admits, and the majority concedes, that he made promises of leniency to Jones in exchange for his testimony against Blair. Ante at 1319; Missouri v. Jones, sentencing transcript at 4. The state courts made no finding to the contrary.
The record also shows that the prosecutor intentionally elicited perjury to bolster Jones’ credibility. At trial, Bell asked Jones if he had made any deals with respect to these charges and Jones said no. Moreover, Bell told the court and the defense attorneys that “[n]o deals have been expressly or impliedly made with him concerning those charges.” Trial transcript, vol. 1 at 348. At Jones’ sentencing hearing, however, Bell admitted to promising Jones leniency in this case but to deliberately leaving the fine print for later for “tactical reasons” because Jones was still to be called as a witness.7 This establishes that Bell deliberately deceived the trial court and the defense. Bell wanted to induce Jones to give favorable testimony, and wanted not only to minimize Jones’ impeachment, but also to bolster Jones’ credibility by having Jones deny that there was a deal.
I would reach the same conclusion even if this issue could somehow be characterized as a question of pure fact. The state post-conviction court made its conclusive determination that there was no deal during the early part of Sterling’s testimony in response to an evidentiary objection made by the State. Thereafter, the court excluded relevant evidence depriving Blair of the adequate development of the facts and a full and fair hearing. The state court excluded from its consideration evidence of Bell’s practices, Sterling’s past dealings with Bell generally and in the Patterson case, and Blair’s trial attorney’s testimony regarding his examination of Jones. See McBryar v. McElroy, 510 F.Supp 706, 709 (N.D.Ga.1981) (exclusions of testimony and *1340the absence of witnesses led to the absence of a full and fair state hearing). Moreover, the state courts relied on Jones’ testimony that he never discussed his pending charges in connection with his testimony against Blair, which was contradicted by both Sterling and Bell. Accordingly, even if I agreed with the majority that this is a fact question, I would nevertheless reject the state courts’ fact-finding. Any presumption of correctness has been rebutted in this case.
C.
We must next decide the materiality of the state’s knowing use of perjured testimony. The district court found no prejudice but erroneously applied the materiality standard for the simple nondisclosure of evidence. The majority does not decide this issue. I would remand this issue to the district court for application of the materiality test for the knowing use of false testimony set forth in United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 2397-98, 49 L.Ed.2d 342 (1976).
“[T]he knowing use of perjured testimony involves prosecutorial misconduct and more importantly involves ‘a corruption of the truth-seeking function of the, trial process.’ ” Bagley, 473 U.S. at 680, 105 S.Ct. at 3382 (plurality) (citing Agurs, 427 U.S. at 104, 96 S.Ct. at 2397). Where the State knowingly offers perjured testimony and does not correct it, it is material and prejudicial if there is any reasonable likelihood that it affected the jury’s judgment or unless it is “harmless beyond a reasonable doubt.” Id. (quoting Agurs, 427 U.S. at 103-04, 96 S.Ct. at 2397-98). While Bagley altered the prejudice test for the simple nondisclosure of favorable evidence by holding that any nondisclosed evidence is material only where it undermines confidence in the outcome, Bagley did not reconsider the standard for cases involving false testimony. United States v. Foster, 874 F.2d 491, 494-95 (8th Cir.1988) (false testimony); Brown v. Wainwright, 785 F.2d at 1465-66.
While there is little doubt in my mind that the knowing use of Jones’ false testimony was material in this case, the appropriate action is to remand this matter to the district court for a full evidentiary hearing and application of the harmless beyond a reasonable doubt standard.
There clearly is sufficient evidence to warrant a remand. The jury did not know that the State and Jones had made a deal under which Jones was to be given probation for offenses for which he could have been imprisoned for twenty years or more. This evidence certainly was of greater materiality than the evidence that Jones pawned the ring; that his probation, which had only a few months left, was not revoked; or that he had received a reward for turning in Blair.8 See Brown v. Wainwright, 785 F.2d at 1459, 1466 (this evidence not cumulative with other impeachment evidence because it involves new facts not known by the jury from any other evidence).
The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend....
Had the jury been apprised of the true facts, however, it might well have concluded that Hamer had fabricated testimony in order to curry the favor of the very State who was prosecuting the case *1341in which Hamer was testifying, for Ham-er might have believed that such a representative was in a position to implement (as he ultimately attempted to do) any promise of consideration.
Napue, 360 U.S. at 270, 79 S.Ct. at 1177; see also Bagley, 473 U.S. at 676, 105 S.Ct. at 3380 (“if disclosed and used effectively, it may make the difference between conviction and acquittal.”). Finally, the court should also consider the effect of this error on the jury’s sentence. Sufficient doubt may have been created in the jurors’ minds about the evidence of premeditation that they might have shied away from imposing capital punishment even if that would have been inconsistent with their guilt verdict.9
III.
Next, Blair argues that the trial court’s failure to instruct the jury on first-degree murder as an alternative to capital murder, together with subsequent inconsistent decisions of the Missouri Supreme Court addressing this instruction issue, have violated his equal protection and due process rights. Blair argues that his confessions support a conviction for first-degree murder, on a felony-murder theory, for which an instruction should have been given.10 Instead, the court gave only capital murder, second-degree murder, and manslaughter instructions.
A.
The Missouri Supreme Court held that Blair was not entitled to a first-degree murder instruction because first-degree murder was not a lesser included offense of capital murder. State v. Blair, 638 S.W.2d at 746-47. Blair argues that the Missouri Supreme Court’s reasoning in his case is inconsistent with its other decisions on the same issue, violating his equal protection rights. I agree, and begin by reviewing the relevant Missouri statutes and decisions.
1.
Effective January 1, 1979, Mo.Rev.Stat. § 556.046 was amended to define a lesser included offense as (1) an offense whose elements are included in a greater offense, or (2) an offense so defined by statute. At the time of this homicide, August 19, 1979, Missouri law required that in every capital case the jury “ascertain, whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, manslaughter, or is not guilty of any offense_” Mo.Ann.Stat. § 565.006.1 (Vernon 1979) (amended 1979). On September 28, 1979, an amendment to this section took effect prohibiting instructions on lesser included offenses of capital murder unless supported by the evidence. Id. (repealed 1984).
The Missouri Supreme Court affirmed that first-degree murder was a lesser included offense of capital murder and that first-degree murder instructions should be given where supported by the evidence in two decisions subsequent to this amendment. In State v. Fuhr, 626 S.W.2d 379 (Mo.1982), the court found that the jury could have concluded that Fuhr killed his victim while committing a robbery on February 6, 1980. The trial court, however, instructed the jury only on capital murder, murder in the second degree, and manslaughter. The Missouri Supreme Court reversed Fuhr’s capital murder conviction for the failure to instruct the jury on first-degree murder. Id; see also State v. Gardner 618 S.W.2d 40, 41 (Mo.1981) (failure to give first-degree instruction held to be error for crime committed on August 31, 1978). In State v. Daugherty, 631 S.W.2d 637, 645 (Mo.1982), the court held that the giving of a first-degree murder instruction for a crime committed September 29, 1979 was proper as a lesser included offense of capital murder despite the prosecution’s failure to charge first-degree murder.
*1342In State v. Baker, 636 S.W.2d 902, 904-05 (Mo.1982) (en banc), cert. denied, 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983), the defendant was convicted of a capital murder committed on June 19, 1980. He appealed, arguing that he was entitled to a first-degree murder instruction on the basis of Gardner. The court concluded that due to the 1979 statutory change in § 556.046, first-degree murder was no longer a lesser included offense of capital murder. The court reasoned that felony murder required proof of the commission of a felony while capital murder did not, thus the elements of the two offenses were dissimilar. Id. at 904. Moreover, under the September 1979 amendment to § 565.006.1, a first-degree murder instruction was no longer required unless supported by the evidence. Id. at 905.
Later that same year, the Missouri Supreme Court heard Blair’s direct appeal. The court applied Baker’s holding that first-degree murder was not a lesser included offense of capital murder and affirmed Blair’s conviction. State v. Blair, 638 S.W.2d at 746-47. The court did not address whether there was sufficient evidence to support a first-degree instruction.11
Similarly, in State v. Woods, 639 S.W.2d 818, 819 (Mo.1982), the court applied Baker to reject the defendant’s claim that he was entitled to a first-degree murder instruction as a lesser included offense of capital murder for a murder committed August 13, 1979. The following year, the Missouri Supreme Court decided State v. Betts, 646 S.W.2d 94, 96 (Mo.1983) (en banc). Betts was convicted of capital murder for a homicide committed during a December 2, 1979 robbery. The court rejected his claim that he was entitled to a first-degree murder instruction, citing to § 556.046, Baker, Woods, and Blair. “[I]t is the holding of these cases that no first degree murder instruction is required in a trial for capital murder committed after January 1, 1979. Baker was in effect at the time of trial.” Id. at 96 (emphasis added). Baker was decided in 1982 and Betts’ trial took place in 1980.
Later the same year, in State v. Goddard, 649 S.W.2d 882, 884-89 (Mo.) (en banc), cert. denied, 464 U.S. 997, 104 S.Ct. 495, 78 L.Ed.2d 689 (1983), the Missouri Supreme Court decided that Baker was only prospective. The defendant was convicted of first-degree murder, after being charged and acquitted of capital murder, for a murder and robbery committed in October 1980. He appealed, arguing that it was error to instruct the jury on first-degree murder where he had not been charged with it in light of Baker and Blair. The Missouri Supreme Court rejected Goddard’s claim, holding that the rule announced in Baker was to be applied prospectively to trials from the date of that decision. Id. at 889. The court did not mention Blair, Woods, or Betts, in each of which the Missouri Supreme Court applied Baker to affirm convictions entered before Baker was decided. Three of the seven judges dissented. They argued that Baker could not be only prospective because it purported to apply § 556.046 respecting lesser included offenses which became effective in 1979. Id. at 891 (Welliver, J., dissenting); id. at 892 (Donnelly, J., dissenting).
Later the same year, the Missouri Supreme Court completely ignored Goddard in affirming a capital conviction from a 1981 trial for a crime committed in 1980 in State v. Williams, 652 S.W.2d 102, 112 (Mo.1983). (en banc). Williams argued that he was entitled to a first-degree murder instruction, but the Missouri Supreme Court declined his claim, citing Baker.12
*1343Finally, in State v. Holland, 653 S.W.2d 670, 673-74 (Mo.) (en banc) (plurality), the defendant was charged with capital murder and convicted of first-degree murder in a crime committed September 29, 1979. A plurality of the Missouri Supreme Court rejected his claim that the inclusion of a first-degree murder instruction by the trial court was error. Relying on Goddard, they noted that Baker was only prospective and thus the instruction was permissible at the time of the trial. One judge concurred, reasoning that Baker should apply from January 1, 1979, but that instructing down was error only if it was prejudicial. Id. at 679 (Rendlen, C.J., concurring). Three judges dissented, arguing that Baker had been applied “retroactively or prospectively solely to affirm the conviction before the court at the moment ... a violation of both due process and equal protection.... The majority ... has treated similarly situated defendants differently in a transparent effort to avoid giving them new trials.” Id. at 679-80 (Welliver, J., dissenting).
2.
Equal protection of the law requires that all people similarly situated be treated alike, absent a legitimate government interest expressed in a rational manner. Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Judicial decisions are judged by their consistency and state courts must abide by their constructions of their own law. Godfrey v. Georgia, 446 U.S. 420, 432, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980).
The Missouri decisions are inconsistent. Despite the passage of § 556.046 and the amendment of § 565.006.1, the Missouri Supreme Court recognized first-degree murder as a lesser included offense of capital murder in two subsequent decisions, Fuhr and Daugherty. In Baker, the court reversed itself and declared that first-degree murder was not a lesser included offense of capital murder. Baker was then applied retroactively in Blair, Woods, and Betts. In Goddard, the court changed course and announced that Baker was only prospective, declining to apply it in Goddard's case. Next, the court applied Baker retroactively in Williams. Finally, the court refused to apply Baker in Holland because Baker was only prospective. See Rumble v. State, 741 S.W.2d 283, 284 n. 2 (Mo.Ct.App.1987) (these decisions cannot be reconciled).
By shifting back and forth between prospective and retrospective application of Baker, the Missouri Supreme Court managed to affirm the conviction in every one of these cases beginning with Daugherty. This inconsistent application of the law treated similarly situated defendants differently, and unless there is a reasonable explanation for the inconsistency, Blair’s equal protection rights were violated. “Blair’s trial occurred before Baker was decided, and thus, under Goddard, Blair should have received an instruction on first degree murder.” Holland, 653 S.W.2d at 681 n. 1 (Welliver, J., dissenting).
Missouri argues on appeal that there is no equal protection violation because “... the Missouri Supreme Court was free to draw the line in applying the new law at whatever point it concluded to be most consistent with judicial economy.... The court reasonably decided ... that all appellate decisions after Baker would be held to the Baker ruling.” Brief of Respondent at 37.
' I agree that the Missouri Supreme Court may decide whether its decisions will be prospective or retrospective. See Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. *13441731, 1737, 14 L.Ed.2d 601 (1965). Perhaps this remains true even where a statute is at issue and the effect of the court’s decision is to alter the statute’s effective date. But this argument fails to come to grips with the problem posed by these cases. While the Missouri Supreme Court certainly can make Baker prospective, it cannot apply its decision on the applicability of Baker inconsistently. That is precisely what it has done in violation of principles of equal justice and neutral decision making. If Baker applied to every case after the 1979 change in the statutory law, the court would have had to reverse the convictions in Goddard and Holland and recall the affirmance in Daugherty. If Baker applied only prospectively to future trials, the analysis used in affirming the conviction in Williams was wrong, and the affirmances in Blair, Woods, and Betts should have been recalled.
In defending Blair’s conviction, the majority takes a different approach from the State. The majority concludes that the court’s decisions are defensible because in some cases, a first-degree murder instruction was given without notice, such as Goddard and Holland. In other cases, the defendant wanted a first-degree instruction and was refused, such as Baker, Blair, Woods, Betts, and Williams. In the majority’s view, the first line of cases implicates due process notice requirements, and thus different treatment of those situations was justified. Ante at 1328-1330. The distinction recognized by the majority in the fact patterns of these cases is real, but our inquiry must focus on whether or not the legal analysis of the Missouri Supreme Court in these cases is distinguishable. It is not, and the majority has confused what were two separate legal issues in Goddard and Holland.
The Missouri Supreme Court faced two separate challenges to the first-degree murder instructions given in Goddard and Holland: whether the first-degree instruction violated Baker’s holding that first-degree murder was not a lesser included offense of capital murder, Holland, 653 S.W.2d at 673, Goddard, 649 S.W.2d at 887; and whether the defendants’ rights to notice of the charges against them was violated when they were convicted of first-degree murder although not charged with it. Holland, 653 S.W.2d at 673; Goddard, 649 S.W.2d at 889. The court answered the first claim by saying that Baker was only prospective. It answered the notice argument by saying that because the crimes were committed prior to Baker, there was no prejudice from the failure to charge first-degree murder because the defendants had notice from Fuhr and Daugherty that the court could instruct down. Holland, 653 S.W.2d at 673-74; Goddard, 649 S.W.2d at 887, 889.
While the majority is correct that the second challenge regarding notice was never made in Baker, Blair, Woods, Betts, or Williams, this sheds no light whatsoever on whether the Missouri Supreme Court’s decisions on the first issue are inconsistent. In Fuhr, the court held that first-degree murder was a lesser included offense for a crime committed in 1980. Baker held that first-degree murder was not a lesser included offense of capital murder. In Woods, the court said that Baker applied to every murder committed after January 1, 1979. Woods, 639 S.W.2d at 96. Goddard held that Baker applied only after Baker’s publication in 1982. Goddard, 649 S.W.2d at 889. In Williams the court applied Baker retroactive and ignored Goddard. These deliberate changes in the effective date of Baker and of § 556.046 have nothing to do with the notice problems in Goddard and Holland. Even if the court had held that Baker was retroactive in Goddard and Holland, it still could have rejected the notice claim on the basis of Fuhr and Daugherty. The unique benefit of concluding that Baker was prospective was that the court did not have to agree with Goddard and Holland’s first challenge to the instruction, that first-degree murder was not a lesser included offense at the time of their trials.
Moreover, the Missouri Supreme Court has been inconsistent in its analysis of the notice issue. In Blair, the court rejected his request for a first-degree instruction for the additional reason that Blair had not *1345been charged with first-degree murder. “[I]t would have been error for the trial court to have instructed on first degree murder.... This is because due process requires that a defendant may not be convicted of an offense not charged in the information or indictment.” State v. Blair, 638 S.W.2d at 747. Yet in Goddard and Holland, the court rejected this very reasoning and held that it was not error to give the jury a first-degree murder instruction although the defendants had not been charged with first-degree murder. Holland, 653 S.W.2d at 674; Goddard, 649 S.W.2d at 889. While only one issue is before us, the Missouri Supreme Court has been inconsistent on both.
Finally, I note that Missouri has not been faithful to Baker in an important respect. Under § 556.046, first-degree murder instructions were still required where supported by the evidence even though not charged in the indictment. Yet in Blair’s case, the court never reviewed the sufficiency of the evidence. Instead, the court applied Baker as if Baker created the inflexible rule that first degree could never be a lesser included offense of capital murder. See Blair, 638 S.W.2d at 746-47.
B.
Blair was also entitled to a first-degree murder instruction on due process grounds, because there was sufficient evidence to support such an instruction. There was no state finding to the contrary.13
Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and its progeny establish that the failure to give the jury meaningful choices in its verdict consistent with the evidence violates a defendant’s due process rights. In Beck, the defendant confessed to entering the victim’s home with an accomplice to commit a robbery. He claimed that he intended to tie up the victim, but his accomplice struck the man and killed him. The jury was instructed only on capital murder and convicted the defendant, sentencing him to death. Id. at 629-30, 100 S.Ct. at 2385-86. The Court reversed, reasoning that the inclusion of lesser offense instructions is necessary to insure “that the jury will accord the defendant the full benefit of the reasonable-doubt standard” where the defendant is clearly guilty of some offense, but where doubt may exist as to an element of the highest offense charged. Id. at 633-34, 100 S.Ct. at 2387-88 (citing Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973)).14 The Court rejected Alabama’s argument that the option of a mistrial provided adequate due process protection against improper verdicts. Id. at 644, 100 S.Ct. at 2393. The Court distinguished Beck in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), where, under the same Alabama law, the defendant did not receive a lesser offense instruction in a capital case. The defendant confessed to intentionally killing his victim and requested the death penalty. Id. at 607-08, 102 S.Ct. at 2050-51. The Court affirmed his conviction because there was no evidence to support a conviction for any lesser offense, stressing that Beck required other instructions only when supported by the evidence. Id. at 610, 102 S.Ct. at 2052. Similarly, in Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 3159, 82 L.Ed.2d 340 (1984), the Court rejected the view that Beck always required lesser included offense instructions in every case, where a conviction for the lesser offense was unavailable because of the statute of limitations.
*1346The majority interprets Beck and its progeny to require merely that sometimes the jury have a “third option” in addition to conviction or acquittal. Ante at 1326. Because Blair’s jury received second-degree murder and manslaughter instructions, the majority finds no due process violation. Id. It does not suffice, however, to give second-degree murder or manslaughter instructions when there is no support for giving the instructions in the record. Where the alternative instructions do not correspond to the evidence, they are of no more benefit in avoiding the jury’s dilemma than the possibility of a mistrial. Cf. Spaziano, 468 U.S. at 455-56, 104 S.Ct. at 3159-60 (“Requiring that the jury be instructed on lesser included offenses for which the defendant may not be convicted, however, would simply introduce another type of distortion into the fact-finding process.”). Nor would giving the jury a second-degree murder or manslaughter instruction be sufficient even if they are supported by the evidence, if the evidence also supports a first-degree murder instruction. Due process requires that a jury be given all the meaningful verdict options supported by the evidence. Spaziano, 468 U.S. at 455, 104 S.Ct. at 3159; Hopper, 456 U.S. at 610, 102 S.Ct. at 2052; Beck, 447 U.S. at 636, 100 S.Ct. at 2389.
Accordingly, we must decide if the evidence supported a first-degree murder instruction. Under Missouri law, there is sufficient evidence to support an instruction where the jury could reasonably find the elements of the offense on the basis of the evidence submitted. Daugherty, 631 S.W.2d at 639; Fuhr, 626 S.W.2d at 379. (“Instructions must be supported by substantial evidence and reasonable inferences to be drawn therefrom.”). First-degree murder under Missouri law was a homicide committed in the course of enumerated felonies without premeditated intent. Mo. Ann.Code § 565.003 (Vernon 1979) (repealed 1984).
The victim’s boyfriend testified that Blair told him when Blair kidnapped the victim that he was not going to harm her. Trial transcript, vol. 4 at 1079. Blair left the boyfriend unharmed, and told the boyfriend, as he left with the victim in her car, that he was not going to tie the boyfriend up or rip out the phone. Id. at 1088. Blair’s confessions recited that he told the victim in the car that he was going to hold her for a few days to prevent her from testifying. Id., vol. 6 at 1980; video statement at 24. When they exited the car, she tried to escape and he killed her. Id. at 25. The State introduced these confessions as evidence of Blair’s guilt but argued that, in fact, he had always intended to kill her, relying on Jones’ testimony. The physical evidence established only that Blair was at the victim’s apartment and at the scene of the murder. The forensic testimony indicated that she was killed at close range. In light of the impeachment that was made of the State’s witnesses (and could have been even more effectively but for the perjured testimony), the jury could have reasonably decided to credit the confessions fully. Compare Gardner, 618 S.W.2d at 41 (first-degree murder instruction required where defendant kidnapped and raped the victim, then had her killed without provocation). Moreover, the trial court did give second-degree murder and manslaughter instructions. If there was sufficient evidence to support these instructions, there was sufficient evidence to believe that the killing was not premeditated and that kidnapping was the original plan. Accordingly, there was sufficient evidence to support a first-degree murder instruction. Such an instruction might have recited that Blair was guilty of first-degree murder if the jury found that Blair shot and killed her, that he did so in the course of a kidnapping, and that he did so to prevent detection of the kidnapping or to prevent the escape of the victim. The penalty for first-degree murder at the time of Blair’s trial was life imprisonment. Mo. Ann.Stat. § 565.008.2 (Vernon 1979) (repealed 1984).
Had the jury credited the confessions, it might not have found that the crime was adequately defined by the second-degree murder instruction. Second-degree murder was defined as all other kinds of murder, including reckless killings, murder in the *1347heat of passion, and homicides committed during crimes other than those listed as predicates for first-degree murder. Mo. Ann.Stat. § 565.004 (Vernon 1979) (repealed 1984). Second-degree murder was punishable by not less than ten years in prison. Mo.Ann.Stat § 565.008.2 (Vernon 1979) (repealed 1984). The jury was instructed that they could find second-degree murder if they found that Blair caused the victim’s death by shooting her, that he intended to shoot her, and that he did not do so in fear of her actions. Instruction 8. There was no reference to the kidnapping or to the attempt to prevent her from testifying. This instruction did not capture the idea that the killing occurred in furtherance of another crime or that Blair killed her to prevent detection or escape.
If a juror had reasonable doubts about the State’s evidence of premeditation, but believed that Blair killed her in the course of a kidnapping, there was no appropriate verdict that described this conduct. The second-degree instruction failed to describe a criminal purpose for the killing, and the capital instruction required premeditation that preceded the kidnapping. In this case, due process required that the jury be given the option of choosing first-degree murder consistent with the confessions. It is not necessary, nor does Blair request, that every lesser included offense of murder have an instruction in every case.
IV.
Finally, I agree with Blair that the prosecution’s closing argument at the penalty stage was improper and prejudicial.
The initial jury panel of ninety-seven had seventeen African-American jurors. Twelve were excluded because of their reservations about the death penalty. One knew the defendant. The last four were struck by the prosecution. Trial transcript, vol. 6 at 1986. The jury, drawn from Kansas City, was thus all white. In his closing statement at the penalty phase, the prosecutor focused on the personal characteristics of the white victim and the race of the defendant. He told the jury:
I want to talk with you for just a few minutes about the two principal actors in this case. Kathy Jo Allen, an attractive, 21-year-old girl, striving to be an artist, going to the Kansas City Art Institute, working part time to help support herself and pay for her education. And she was viciously raped while in the supposed safety of her own home last April, as we all heard. She was nearly killed in that rape, but she had the courage to come forward....
Then, again, the supposed safety of her own home was invaded by this defendant, Walter Junior Blair. Can you imagine her state of mind when she woke up at 6 o’clock that morning, staring into the muzzle of a gun held by this black man?
Trial transcript, vol. 7 at 2314-15. After reviewing the crime, the prosecutor explained that the jury could choose execution or life imprisonment for fifty years. The prosecutor’s first argument for choosing between them was: “Why should we as taxpayers have to house this man for fifty years? Why should we have to feed him three meals a day for fifty years, clothe him for fifty years, furnish him recreation, medical care?” Id. at 2317. The prosecutor then immediately made negative reference to Blair’s assertion of his constitutional rights during trial.15
In three respects, the prosecutor’s closing argument violated the rule that the sentencing decision focus on the characteristics of the defendant and the circumstances of the crime. First, the prosecution’s “taxpayer” argument was designed to inflame the jury and was unrelated to the personal characteristics of the defendant. It also relied on facts not in evidence. Next, the prosecution is not permitted to make adverse comment on the defendant’s assertion of his constitutional rights. *1348Finally, the prosecutor impermissibly focused the all-white jury’s attention on the race of the defendant. Each of these prejudicial arguments violated constitutional principles clearly established before Blair’s conviction became final.16
A.
The Supreme Court has time and again declared that the eighth amendment prohibits arbitrariness in the imposition of the death penalty and that sufficient reliability can be attained only through the jury’s individualized consideration of the defendant. Individualized consideration has long meant a focus on the characteristics of the offender and the circumstances of the offense, together with an avoidance of arguments that play upon undifferentiated fears of the jury. “[W]e cannot avoid the conclusion that an individualized decision is essential in capital cases. [Each defendant is entitled to] that degree of respect due the individual. [Individualized consideration [is] a constitutional requirement in imposing the death sentence.” Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality opinion of Burger, J.); accord Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 2744, 77 L.Ed.2d 235 (1982) (collecting cases); Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937). In reviewing death sentences, the Supreme Court has acted to “ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake.” Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982) (O’Connor, J., concurring). All the evidence submitted to the jury during sentencing must have “some bearing on the defendant’s ‘personal responsibility and moral guilt.’ ” Booth v. Maryland, 482 U.S. 496, 502, 107 S.Ct. 2529, 2532, 96 L.Ed.2d 440 (1987) (quoting Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3379, 73 L.Ed.2d 1140 (1982)).
The majority concedes that the prosecutor’s argument that Blair should be put to death rather than imprisoned at the public’s expense violated Blair’s eighth amendment rights by deflecting focus from the crime and the defendant. Ante at 1322, 1323 (citing Zant). The prosecutor’s argument was improper because it included generalized and inflammatory sentiments about incarceration that have little to do with the propriety of selecting Walter Blair in particular for death. Zant, 462 U.S. at 879, 103 S.Ct. at 2744; see State v. Muskus, 158 Ohio St. 276, 109 N.E.2d 15 (1952) (taxpayer argument violates the Constitution).17 Cost is not accepted as a constitutional justification for the death penalty. Gregg v. Georgia, 428 U.S. 153, 183-87, 96 S.Ct. 2909, 2929-31, 49 L.Ed.2d 859 (1976). The prosecutor’s subsequent statement, pointing out that Blair was represented by counsel and had fully asserted his rights, buttressed his costs argument and adversely commented on Blair’s assertion of his rights. See, e.g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (adverse comment prohibited).
The majority insists, however, that despite having used eighth amendment standards to determine the propriety of the argument, we cannot use eighth amendment standards to judge the legal consequence of the prosecutor’s argument. Ante at 1323. Instead, it employs the weaker due process standard described in Newlon v. Armontrout, 885 F.2d 1328, *13491336-37 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). There is a substantial difference between the two legal standards. Under the eighth amendment, we must decide if the type of statement made at sentencing is “inconsistent with the reasoned decision-making we require.” Booth, 482 U.S. at 508-09, 107 S.Ct. at 2536 (“the formal presentation of this information by the state can serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence.”). Instead, the majority would place the burden on the defendant to prove that the prosecutor’s deliberate misconduct made the entire sentencing proceeding unfair and, absent the error, the outcome would have been different. Ante at 1324. This places the risk of our uncertainty as to the jury’s thinking on the defendant. It also risks continuing intentional misconduct by prosecutors. I disagree with the majority’s analysis, and I believe that it is unsupported.
The eighth amendment governs not only the permissible scope of the penalty proceeding, it also provides the consequences for errors during the penalty proceeding. Three recent Supreme Court decisions have evaluated the legal effect of closing arguments at the penalty phase under the eighth amendment. South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 2210, 104 L.Ed.2d 876, 882 (1989); Booth, 482 U.S. at 501-03, 107 S.Ct. at 2532-33; Caldwell v. Mississippi, 472 U.S. 320, 329-30, 105 S.Ct. 2633, 2639-40, 86 L.Ed.2d 231 (1985). The majority focuses on only Caldwell. Comparing Caldwell with Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (due process standards applied to prosecutorial statements at guilt phase), the majority concludes that the eighth amendment determines the legal consequences of a misstatement only where the statement misleads the jury into thinking that they are not ultimately responsible for imposing the death penalty. Ante at 1323-1324. The majority neglects to consider that Gathers and Booth also applied the eighth amendment to errors that did not mislead the jury as to its role in the sentencing process. In Booth, the Court held that the use of victim impact statements was unconstitutional under eighth amendment standards. 482 U.S. at 508-09, 107 S.Ct. at 2535-36. The Court did not shift the onerous burden of proof proposed by the majority onto the defendant to prove the effect of the error on the jury’s thinking. Instead, the Court reversed Booth’s sentence, concluding that the type of error at issue “creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” Id. at 505, 107 S.Ct. at 2534. Similarly, in Gathers, the Court reversed a conviction on eighth amendment grounds where the prosecutor read from a religious tract the victim happened to be carrying at the time of his death. 490 U.S. at - -, 109 S.Ct. at 2210-11, 104 L.Ed.2d at 882-83.18 In neither case did the error mislead the jury as to its role.
The due process clause, rather than the eighth amendment, controls the content of prosecutorial statements made at the guilt phase. Darden, 477 U.S. at 178-82, 106 S.Ct. at 2470-72. This court’s opinion in Newlon, relied upon by the majority, properly noted that in considering a closing argument at the penalty stage, both clauses of the Constitution must be considered.
We cannot agree with the State’s argument that the district court’s use of both eighth amendment and fourteenth amendment analysis somehow renders its decision improper. Rather, we find that the eighth amendment analysis bolstered the district court’s finding of a due process violation. As the Tenth Circuit has stated, “[a] decision on the propriety of a closing argument must look to the Eighth Amendment’s command that a death sentence be based on a complete assessment of the defendant’s individual circumstances.... ”
Newlon, 885 F.2d at 1337 (quoting Coleman v. Brown, 802 F.2d 1227, 1239 (10th *1350Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987)).
The impropriety of the standard urged by the majority, that Blair prove that the jury would not have given him the death penalty absent the improper argument, is further demonstrated by the type of judgment that must be made in a capital case. It is difficult, if not impossible, in any type of case for us to be certain which factors influenced a jury’s verdict. We do not know the individual jurors. We do not know what went through their minds as each heard the arguments of counsel. We are nevertheless frequently called upon to assess what effect more or less evidence would have had on a jury’s deliberations with respect to a civil verdict or a defendant’s guilt or innocence. We review the evidence and arguments and weigh the probable effect of additions and subtractions. We decide whether there was more than enough evidence of guilt. There are sometimes hard cases, but our review of the sufficiency of the evidence in many cases is not prohibitively difficult because we must decide only how a reasonable juror would view the evidence.
These difficulties are compoúnded, however, when we are called upon to decide why twelve individuals decided to impose the death penalty. We are not reviewing the sufficiency of tangible evidence. “[A] wider range of considerations enters into” this judgment. Zant, 462 U.S. at 883, 103 S.Ct. at 2746. In no other decision are the individual cultural differences among jurors more apparent. In no other type of judgment are the influential factors so likely to be personal, unstated, and at times unrelated to the particular evidence. We do not know how many jurors thought this was a close case before finally voting for capital punishment. We can never be sure that the stated aggravating factors were the decisive ones; nor are we entitled to presume that they were. While the aggravating circumstances considered by the jury are seemingly substantial in differentiating between murderers, we know that a prosecutor’s appeals to public prejudices are also powerful. Even in the face of aggravating circumstances, we must not underestimate the effect of these prejudices — prejudices proscribed from the jury’s consideration by law, but summoned into Blair’s hearing by this prosecutor.
Under eighth amendment standards, the prosecution’s argument regarding incarceration expense and the defendant’s constitutional rights was prejudicial. These arguments introduce a real danger of arbitrariness into sentencing hearings and are inconsistent with the type of decision making required. Blair recites polling information that the cost of incarceration is a significant reason why many people in this country support the death penalty. Appellant’s Brief at 30. Moreover, many citizens have never visited a prison and mistakenly believe that criminals are coddled. In light of the prejudice these types of argument evoke, Blair need not assume the impossible task of proving that this jury would have reached a different conclusion absent this argument. We are unable to know what the jury would have done, and Blair should not bear the risk of our uncertainty. “[A]n appellate court ... is wholly ill-suited to evaluate the appropriateness of death in the first instance. Whatever intangibles the jury might consider in its sentencing determination, few can be gleaned from an appellate record.” Caldwell v. Mississippi, 472 U.S. at 330, 105 S.Ct. at 2640.19 Because "the penalty of death is qualitatively different from a sentence of imprisonment ... there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. State of North Carolina, 428 U.S. 280 at 305, 96 S.Ct. 2978 at 2991, 49 L.Ed.2d 944 (1976) (plurality); accord Zant, 462 U.S. at 884-85, 103 S.Ct. at 2746-47;20 Eddings, 455 U.S. at 117, 102 S.Ct. at 878 (O’Connor, J., concurring).
*1351B.
The prosecutor also introduced racial prejudice into the sentencing process by discussing the race of the defendant and speculating on the victim’s fear at seeing “this black man” with a gun.21 His argument carefully played upon white fear of crime and the tendency of white people to associate crime with blacks. This is an exceedingly powerful image in our society. It is perpetrated by the media and perpetuated by manipulative politicians. It leads white people to cross the street when they see an African-American coming and to speed up when they walk nearby. It reinforces racial stereotypes that reverberate in employment decisions, housing decisions, and in the minds of African-Americans who feel that they will never live to see a better day in this country.
Race plays an especially influential role in capital sentencing decisions. In McCleskey v. Kemp, 481 U.S. 279, 286, 107 S.Ct. 1756, 1763, 95 L.Ed.2d 262 (1987), the defendant introduced evidence that “the death penalty was assessed in 22% of the cases involving black defendants and white victims; [and] 8% of cases involving white defendants and white victims.” The Court rejected the defendant’s fourteenth amendment equal protection claim only because he was unable to produce any indicia that race was a factor in his own case. Id. at 292-93, 107 S.Ct. at 1766-67. The Court did not refute the claim that even without any direct comment on race, juries are three times likelier to impose the death penalty on a black who kills a white as they are to give the same penalty to a white defendant.
In this case, the prosecution did explicitly comment on the defendant’s race, massaging the conscious and subconscious thoughts of the jury. It does not take much to summon such a powerful image. Indeed, the effectiveness of his appeal might have been compromised had it been more forthright. Moreover, while Batson challenges to a prosecutor’s use of peremptory strikes against black jurors cannot be made retroactively,22 the prosecution’s exclusion of all of the qualified black jurors in this case is strong circumstantial evidence of discriminatory purpose. See Batson v. Kentucky, 476 U.S. 79, 93-94, 106 S.Ct. 1712, 1721-22, 90 L.Ed.2d 69 (1986) (prima facie case of equal protection violation established by exclusion of the four qualified black jurors).
Any invitation to racial prejudice in the criminal process is clearly prohibited by the fourteenth amendment. Rose v. Mitchell, 443 U.S. 545, 555-56, 99 S.Ct. 2993, 2999-3000, 61 L.Ed.2d 739 (1979).
[A] prosecutor ‘should not be permitted to summon that thirteenth juror, prejudice.’ Racial prejudice can violently affect a juror’s impartiality and must be removed from the courtroom proceeding to the fullest extent'possible_
Thus, the purpose and spirit of the fourteenth amendment requires that prosecutions in state courts be free of racially prejudiced slurs in argument. The standard for state prosecution in this regard is thus as high as the rigorous standard required of the federal courts *1352by the fifth amendment’s due process clause.
United States v. McKendrick, 481 F.2d 152, 157-59 (2d Cir.1973) (quoting United States v. Antonelli Fireworks, 155 F.2d 631, 659 (2d Cir.1946) (Frank, J., dissenting), cert denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946)). “Even if brief, use of race as a factor in a closing argument obviously would be improper ...” Brooks v. Kemp, 762 F.2d 1383, 1413 (11th Cir.1985) (en banc), cert. granted and judgment vacated, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986), on remand, 809 F.2d 700 (11th Cir.) (en banc) (per cu-riam), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240, 97 L.Ed.2d 744 (1987). A reversal of Blair’s sentence is required if race played any part in his trial. See Rose, 443 U.S. at 556-59, 99 S.Ct. at 3000-02 (reversing the defendant’s conviction because of discrimination in the selection of grand jury foreman despite the defendant’s subsequent conviction by a separate jury).
V.
In criminal cases, the government must wear two hats. The prosecutor must act as an advocate, although he or she is repeatedly cautioned to put ahead of partisan success observance of the law — not the law as it might be stretched in one direction, but the law as it is interpreted with considerations of justice and fairness. Courts must act as a neutral and sometimes unpopular check and balance against the weight of unrestrained prosecutorial partisanship. When neither do their job, justice and law are not left on speaking terms.
The failure to give a first-degree murder instruction and the inconsistent treatment of this issue by the Missouri Supreme Court require that Blair be given a new trial. Even if it were assumed that there was no instructional error, the concealment of the perjured testimony, together with the prosecution’s deliberate elicitation of it to bolster Jones’ credibility, require that this matter be remanded to the district court to determine whether the concealment and perjury were harmless beyond a reasonable doubt. Finally, even if it were assumed that the perjury was not grounds for a remand, the prosecutor’s appeals to social and racial prejudice justify a new sentencing hearing. For the reasons stated, I dissent.
. I concur in Section VItof the majority opinion that disqualification of the Attorney General’s office was unnecessary.
. In light of the state findings regarding the voluntariness of the written statement which contained the same admissions as the videotape, I withhold judgment as to the admissibility of the video confession. I note, however, that in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the suspect was unaware that a defense counsel had been retained for him and was trying to contact him. Id. at 417, 106 S.Ct. at 1138. In this case, counsel and Blair met in the hallway and were physically separated. Blair might well have thus thought that the declaration of his right to counsel was boilerplate and that any request for counsel thereafter would have been futile.
. This claim was raised fully before the state courts but was not presented in Blair's habeas corpus petition prepared by his appointed counsel. The majority rejects Blair's pro se claim of ineffective assistance on the grounds that Blair has no right to counsel in a habeas proceeding, and thus no right to effective assistance. The majority also concludes that there is no prejudice because they considered and rejected all of Blair’s claims. I disagree.
First, the majority did not consider all of his claims. Blair requested that all of his exhausted state claims be raised in the habeas petition and on appeal to us. Blair Pro Se Appellate Brief at 23; Appellant's Brief at 2, n. 1. The majority has considered only one of those claims, the failure to give a first-degree murder instruction. Second, according to Blair, his counsel deceived him regarding the grounds that would be presented to the district court. Counsel agreed to present all the exhausted state claims, but failed to do so and never provided Blair with a copy of the habeas petition. Pro se brief at 22. Thus, at issue is not merely the judgment of counsel in not presenting certain claims, but the allegation as well that counsel lulled Blair into not presenting other claims pro se before the district court.
While there is no absolute right to the appointment of counsel in habeas proceedings at present, due process requires counsel in complex cases. Hooks v. Wainwright, 775 F.2d 1433, 1438 (11th Cir.1985), cert. denied, 479 U.S. 913, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986); see also 18 U.S.C.A. § 3006A(g) (appointment in the interests of justice). This is a complex case. Moreover, the absence of a general right to appointment does not mean that once counsel is appointed, no restraints imposed by law remain on his representation. Cf. Goldberg v. Kelly, 397 U.S. 254, 261, 90 S.Ct. 1011, 1016, 25 L.Ed.2d 287 (1970) (while states are not required to provide welfare, termination of benefits must comport with procedural due process). Blair can raise this due process claim in a second petition. Moreover, he also has persuasive grounds for a second petition in counsel’s deception of him. See Dist.Ct.Rules for § 2254 cases, rule 9 (new grounds justify second petition unless it is an abuse of the writ). Under a second petition, the district court would have to judge the prejudicial effect of any error cumulatively with errors admitted on this appeal but not found sufficiently prejudicial in isolation.
. It appears that the burglary charge was part of the assault case, but the record is unclear. 27.26 transcript at 88, 166.
. The Eleventh Circuit explained:
Certainly Giglio does not require that the word "promise” is a word of art that must be specifically employed.... "The thrust of Gig-lio and its progeny has been to ensure that the jury knows the facts that might motivate a witness in giving false testimony ...” ... which testimony "could ... in any reasonable likelihood have affected the judgment of the jury.”
Brown v. Wainwright, 785 F.2d 1457, 1464-65 (11th Cir.1986) (citations to earlier cases omitted).
. In Dubose v. Lefevre, 619 F.2d 973, 977 (2d Cir.1980), the prosecutor admitted that she had told the witness that with her testimony, "a misdemeanor was probably more in the realm of a possibility than a felony.” The state court found that there was no deal, and the Second Circuit reversed. Id. at 978. “The fact that the promise did not take a specific form did not allow the prosecution to avoid disclosing [it] to the jury....” Id. at 979. Similarly, in United States v. Butler, 567 F.2d 885 (9th Cir.1978), two government investigators told the witness that a dismissal or reduction of his pending charges would be a strong probability if he testified. Id. at 887. While there was no claim that a "bald promise" was made, the court found the innuendos that “everything would be all right” enough to require disclosure. Id. at 888-89. See also, Campbell v. Reed, 594 F.2d 4, 6 (4th Cir.1979) (“everything' would be all right”); Washington v. Vincent, 525 F.2d 262, 265-67 (2d Cir.1975) (prosecutor would “see what [he] could do to help him”), cert. denied, 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976).
.Jones, sentencing transcript at 4 (quoted supra at 1336; accord 27.26 transcript at 64 (Sterling’s recollection of Bell's motive, understanding “between us.”) (quoted supra at 1336).
. The defense also attempted to impeach Sharon Jones by showing inconsistencies in her testimony between her initial statement to the police where she disclaimed knowing the names of the victim or of the man who hired Blair, trial transcript, vol. 4 at 1414-15, and her testimony on the stand that Walter discussed the killing with her the day before and the day of the killing, telling her both names, and showing her the driver’s license from which she claimed on the stand to have remembered the victim’s name. Id. at 1410-11. Sharon visited Ernest Jones in jail after her first statement to the police and before she testified. Id. at 1423-24. She was also the 17-year-old sister of Ernest Jones’ girlfriend, Tina Jackson. Id. at 1382. She lived with Tina, who bore Ernest Jones children. Id. at 1423. She was promised $1,000 for her testimony, $250 up front with $750 to follow after she testified satisfactorily. Id. at 1392.
. In this regard, the court would have to consider that the failure to give a first-degree murder instruction may have led the jury to impose a more severe verdict than they otherwise might have.
. Felony murder was the only type of first-degree murder under former Missouri law. Mo. Ann.Stat. § 565.003 (Vernon 1979) (repealed 1984) (including kidnaping as a predicate act).
. The court also failed to consider the ex post facto problem posed by application of § 565.006.1 through Baker to a homicide that preceded the effective date of the amendment to § 565.006.1. Blair alleges that his ex post facto rights thus were violated. In my view, there is no ex post facto violation as long as Missouri allows a first-degree murder instruction where there is sufficient evidence to support one.
. Williams’ appeal to our court was decided on narrower grounds. A panel of this court granted Williams’ habeas corpus petition because of the uneven application of Baker. Williams v. Armontrout, 891 F.2d 656, 660 (8th Cir.1989) (vacated). Judge Fagg dissented, arguing that "despite the Missouri Supreme Court’s seemingly inconsistent application of its precedents,” *1343there was insufficient evidence to support a felony murder instruction. Id. at 666 (Fagg, J., dissenting). This court en banc adopted Judge Fagg's view of the facts that the kidnapping was merely incidental to the planned homicide. Williams v. Armontrout, 912 F.2d 924, 929 (8th Cir.1990) (en banc). While that is also the State’s theory in this case, on its facts, Williams is distinguishable because the State’s evidence of premeditation and intent was overwhelming in that case, including the commission of a previous murder with the same motive. Id. at 929. Blair’s confessions admitted by the State together with the unreliability of the State’s witnesses make this a closer case, in which the jury could have believed that kidnapping was the primary scheme of the defendant.
. The majority argues that the trial court found that there was insufficient evidence of kidnapping. Ante at 1330 n. 23. I find no such finding in the record. Nor can I find any finding from any other state court that there was inadequate evidence to support a first-degree murder instruction. The Missouri Supreme Court decided that Blair was not entitled to a first-degree instruction solely on the basis of Baker, without considering that even under Baker a defendant was entitled to a first-degree murder instruction if the evidence supported it. Blair, 638 S.W.2d at 746-47. The presumption of correctness accorded state fact findings does not extend to factual issues left unresolved. 28 U.S.C. § 2254(d)(1).
. This requirement also protects the prosecution by increasing the chances that the defendant will be convicted of some offense. Beck, 447 U.S. at 633, 100 S.Ct. at 2387.
. “I submit to you, and we’ve heard a lot about constitutional rights in this case, the constitutional rights of this defendant, and certainly he's been afforded every constitutional right there is, including representation by two of the finest criminal lawyers here in Jackson County....” Trial transcript, vol. 7 at 2318.
. See Sawyer v. Smith, — U.S. -, -, 110 S.Ct. 2822, 2826, 111 L.Ed.2d 193 (1990) (application of retroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to capital sentencing errors). Sawyer establishes that constitutional condemnation of the prosecutor’s closing argument must precede the conviction’s finality to be applied on collateral review. Subsequent cases can nevertheless inform our understanding of prior law, the interplay between the various clauses of the Constitution, and the legal consequences of the error. No state procedural bar on these claims was invoked by the state courts. See Ulster County Court v. Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 2222-23, 60 L.Ed.2d 777 (1979).
. See also State v. Jordan, 80 Ariz. 193, 294 P.2d 677 (1956); Commonwealth v. Clark, 322 Pa. 321 185 A. 764 (1936) (condemning taxpayer argument).
. Gathers also rules out the possibility that eighth amendment analysis applies only to formal procedures that are misleading.
. Clemons v. Mississippi, - U.S. -, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), in contrast, did not involve prosecutorial misconduct or appeals to social prejudice. The effect of social prejudice is the most difficult factor for appellate courts to judge.
. This is not a case like Zant, in which the error involved evidence that did relate to the *1351defendant and was fully admissible at sentencing. Zant, 462 U.S. at 886, 103 S.Ct. at 2747; see also id. at 890, 103 S.Ct. at 2749 (suggesting different result with inadmissible evidence).
. This claim was not raised before the state courts. In one sense, there has been no "deliberate" bypass of state remedies in favor of federal review because it was never brought to our attention either. There can be cause for the bypass of state proceedings, however, in the ineffective assistance of state counsel to raise this claim. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). While not every failure to recognize the factual or legal basis of a claim is ineffective assistance, I believe that the failure to raise this impropriety is ineffective assistance because of the obviousness of the appeal made by the prosecutor and the explosiveness of the prosecutor's argument. I find both cause and prejudice for the default. To the extent that the majority believes that the performance of state counsel is not before us because Blair's current attorney has not raised it, a successive habeas petition is available to challenge the decisions of Blair’s current attorney. See supra note 3.
. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986).