dissenting.
Because I believe that the Supreme Court’s decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), requires reversal, I cannot join the majority’s decision to affirm the judgment of the district court.
1.
The appropriate analytical starting point for an evaluation of this issue is to define with some precision the role that the jury plays in a capital case in Indiana. In its review of Mr. Fleenor’s post-conviction petition, the Supreme Court of Indiana set forth that role in some detail. See Fleenor v. State, 622 N.E.2d 140, 143 (Ind.1993). That discussion warrants repeating here. The Court pointed out, as does the majority, that an Indiana jury is not charged with the responsibility of determining the sentence; it makes a recommendation as to whether the death penalty ought to be imposed. The state trial judge has the ultimate responsibility to determine whether to impose imprisonment or the death penalty. Nevertheless, under Indiana law the jury’s recommendation is a very important part of the process of determining whether a person will live or die.
Although the formulations articulated by the Supreme Court of Indiana have evolved over the years, it is fair to say that Indiana law constrains significantly the options of both the trial court and the Supreme Court in the face of a jury recommendation against death. The responsibilities of the trial court are summarized in Roark v. State, 644 N.E.2d 565 (Ind.1994):
When the trial court has a jury recommendation against death before it, the single essential feature of this part of the sentencing process is that at the point of final decision the court reflect upon the jury recommendation against imposing death. A judge who proceeds in this manner will have satisfied the requirement of due consideration of such jury recommendation. In cases where the jury recommends against death, this consideration reflects appreciation that the jury’s recommendation is a statement by the “conscience of the community” that each and every member of a jury that unanimously found the defendant guilty of murder has reconciled himself or herself to returning to the homes and workplaces of the community where in all likelihood the murder occurred, having unanimously recommended against a sentence of death in the face of the State’s request for the death penalty. After such due consideration of the jury recommendation, the trial court must render its judgment.
Id. at 570 (footnote omitted).
The Supreme Court apparently is even more constrained in its evaluation of the jury’s recommendation. In Roark, the Supreme Court of Indiana explained that its own review of a sentence of death involves a two-stage analysis:
(i) whether the trial court sentencing statement demonstrates due consideration of the jury recommendation; and
(ii) whether this Court, upon independent reconsideration of a jury recommendation against death, nevertheless concludes that the death penalty is appropriate.
Id. at 571. In meeting its second responsibility, the Supreme Court apparently takes the approach set forth in Peterson v. State, 674 N.E.2d 528 (Ind.1996), cert. denied, — U.S. -, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998).1 It is clear, therefore, *1103that both at the trial and the appellate levels, the recommendation of the jury against the infliction of the death penalty must be treated as a serious component in the sentencing decision. Notably, at the time that the Supreme Court of Indiana reviewed this case, it employed an even more stringent standard to the approval of a death sentence in the face of a jury recommendation that the defendant be allowed to live: “If the jury recommendation is against death, death is appropriate only if the facts justifying a death sentence are so clear and convincing that only death is reasonable.” Fleenor, 622 N.E.2d at 143.
2.
Caldwell forbids leading a jury to believe that its role in the decision whether a person lives or dies will have less weight in the ultimate determination than state law actually gives that recommendation. See Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); see also Johnston v. Singletary, 162 F.3d 630, 642-43 (11th Cir.1998); Duren v. Hopper, 161 F.3d 655, 664 (11th Cir.1998); Davis v. Singletary, 119 F.3d 1471, 1481-85 (11th Cir.1997), cert. denied, — U.S. -, 119 S.Ct. 813, 142 L.Ed.2d 673 (1999); Julius v. Johnson, 840 F.2d 1533, 1544 (11th Cir.1988). As the Supreme Court of Indiana recognized, and, indeed, as my colleagues seem to recognize as well, compliance with the holding of Caldwell is not a simple matter of finding “magic words” in a jury instruction; it requires an evaluation of the proceedings in their totality to determine whether the jury made its recommendation under a misapprehension as to the role that recommendation would play in the final determination of life or death.
Here, as the Supreme Court of Indiana recognized, matters got off on the wrong foot during the voir dire of the jury. In introducing the prospective jurors to their role, the state trial judge told them:
“[Ijt’s the Courts responsibility ultimately, you make a recommendation to the Court, the Court either follows it or doesn’t, and then the Court ... can impose the death penalty, not impose the death penalty, and can give a sentence ... with a wide range of possibilities. You’re not ... charged with that responsibility in this case.
Now your recommendation is just that. It’s a recommendation it is not binding on the Court.... The Court may ignore it; the Court can accept it. In the final analysis the decision will be up to the Court.”
Fleenor, 622 N.E.2d at 143.
As the Supreme Court of Indiana acknowledged, this formulation, as well as the variations occasionally employed by the trial judge, were “not entirely accurate.” Id. at 143. “They do not inform the jury that the judge is required to give due consideration to the recommendation in deciding upon the sentence. Judges are ... not free to ignore the recommendation.” Id. Examining the voir dire of counsel, the Supreme Court of Indiana also noted the contrast between the approach of the defense counsel and that of the prosecutor:
The voir dire questioning by defense counsel was generally very complete and accurate. It commonly took the following form:
“[I]t has been explained to you, the Jury does make a recommendation to the Court, recommending that the death penalty be imposed or recommending that the death penalty not be imposed. And that is certainly a factor that the Court would consider.”
The voir dire by the trial prosecutor commonly took the following form:
“It would be up to the Judge to make the final determination, and your ac*1104tion would simply be to recommend or not recommend death penalty.
[Y]ou make that recommendation to His Honor, ... he accepts that recommendation for consideration only. You understand that he is not bound by it. He listens to what you have to say, but he is the final judge.... His Honor, the Judge, imposes the penalty. You don’t have to worry about that....
[T]he key word ... is recommendation .... [T]hat, maybe, takes some of the burden off of you....
[I]t is only a recommendation.... He listens to the evidence.... He also has a presentence report.... [H]e juggles all those things or whatever you want to say about it, and he makes that decision. So, I want to make it clear to you, you’re not saying, as a Jury member, We impose the death penalty.”
Id. at 143-44.
During his closing argument to the jury, the prosecutor returned to this theme of minimizing the role that the jury’s recommendation would play in the ultimate decision of life or death for Mr. Fleenor. Indeed, his remarks did a great deal more than simply minimize the jury’s role; it affirmatively misstated the law:
And there was a lot of talk about what if we make a mistake. I’ve thought about that. What if I’m wrong? You know. You’ve got to put a lot of people through a lot of — a lot of trouble, not to mention the defendant. What if I’m wrong? What if you’re wrong? The Judge is going to consider your final recommendation, in this case. Or his rec — your recommendation. He’s gonna make the final decision, Number One. Number Two, the law of this State requires — it’s not optional — it requires that every death penalty decision is reviewed by the Supreme Court of this State. The Supreme Court of Indiana is gonna, automatically, review a death penalty case in this State. There’s governors; there’s Federal Judges; U.S. Supreme Court Justices and the U — U.S. Supreme Court, itself. You folks live in the real world and you know that that’s — that’s not — this is not the end of this case. The bird is not in your hands. You are asked to make a recommendation' — a serious recommendation. It’s not the end of this case. First of all, it’s not a bird — it’s not an innocent bird. And, secondly, it’s not in your hands. You’re only part of the system. I’m only part of it. You’re only part of it. The Judge is only part of it. The Supreme Court — it’s possible for human beings to make mistakes. Our law is a wise and reasonable law — they understand that. It doesn’t say that uh — that the life of D.H. Fleenor is in your hands. It knows that even 12 wise people, in Johnson County, might make a mistake. It takes into — that into account and it says that not only the Jury, but the Judge who sits through the evidence, shall consider it. Maybe the Jury’s wrong; maybe they missed something in the evidence; maybe they didn’t apply this balancing of mitigating circumstances versus aggravating circumstances, correctly. And, then, we go to the Indiana Supreme Court — -well, what if the Judge is wrong? Maybe he’s made a mistake. We go to the Indiana Supreme Court and then beyond that there are — like I said, we live in a real world, we know there are many other recourses if somebody’s made a mistake in this kind of a case. Is it really necessary? Is it really necessary? Well, I ask you: Is that the issue in this case? Has anyone said that that is the issue in this case? The bird is not in your hands, Ladies and Gentlemen. It’s in the hands of — many of the branches of law enforcement in this — or, criminal justice in this State.
Tr. at 5072-75. Although the trial judge simply instructed the jury that its “recommendation is not binding upon the Court, it is a very valuable contribution,” Tr. at *11055090, the judicial and prosecutorial misstatements at voir dire and closing argument went otherwise uncorrected. When the record is evaluated as a whole, it is clear that the jury was made to “feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); see also Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). The statements of the trial judge were in conflict; the statements of the prosecutor were wrong and, indeed, inflammatory.
Even under the standards employed today by the Supreme Court of Indiana, the information given the jury was simply wrong. It is worth noting, however, that the magnitude of the error is even more pronounced when one recalls that, at the time it reviewed this case, the Supreme Court of Indiana said, unequivocally, that the trial judge could not impose the death sentence unless “the facts justifying a death sentence are so clear and convincing that only death is reasonable.” Fleenor, 622 N.E.2d at 143. The sentencing jury in this case was entitled to information accurate at the time it made the decision. Cf. Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). The misleading remarks of the state trial judge and the prosecutor certainly prevented it from knowing that, had it recommended that the defendant be allowed to live, that recommendation would have constituted a high hurdle for the state to overcome before the state trial judge would have imposed the death penalty.
3.
The majority’s tolerance of the state trial judge’s lapse and the prosecutor’s egregious conduct appears to be due in part to its own underestimation of the role that the jury’s recommendation is to play in the sentencing process. It is simply not true, as a matter of Indiana law, that a jury’s recommendation is weightless. See supra at 1100. The majority finds further comfort for its decision to overlook the prosecutor’s having affirmatively misled the jury about its responsibility by suggesting that the prosecutor was not telling the jury anything that it did not already know. See supra at 1099-1100. The majority may well be correct in its belief that the average citizen called to jury duty believes the conventional wisdom that the decision made at the trial level is subject to many de novo reviews. If such a misconception exists, however, there is all the more reason to ensure that such disinformation is dispelled — not reinforced — before the jury gets down to the serious business of determining whether a man will live or die.
The majority finds yet another justification for overlooking the prosecutor’s misstatement of the law by attempting to characterize, through selective examples, these misstatements as a permissible reply to improper argument on the part of the defense counsel. The proposition that misstatements of the law by a prosecutor are a permissible reaction to defense argument is a novel, and dangerous, justification — especially in the context of a death case. See United States v. Johnson-Dix, 54 F.3d 1295, 1305 (7th Cir.1995). Moreover, such a claim simply cannot be sustained on this record. A reading of the entire presentation of the defense makes two matters very evident: (1) defense counsel made it clear that the jury had to work within the legal framework of the State of Indiana, including the decision of the legislature that the death penalty ought to be imposed in some cases; and (2) counsel repeatedly told the jury that its task was to make a recommendation. With respect to the first point, the defense counsel straightforwardly told the jury that “you are here to punish murder and the only question is whether you have to recommend to kill D.H. Fleenor to do it.” Tr. at 5003. My colleagues note emphatically defense counsel’s stark description of capital punishment and his suggestion that it serves no purpose but retribution. The majority suggests that this was an unfair argument. But surely the defense has the *1106right to suggest to the jury that the punishment that the state asks it to recommend would, in the case before it, serve no other purpose. Notably, at no time did the defense counsel suggest that the jury ought not apply the law as explained by the judge. Indeed, the defense counsel reminded the panel of their obligation to follow the law:
We’re not here to debate whether or not there should be capital punishment....
Tr. at 5013; see also Tr. at 5031.
With respect to the second point, it suffices to note that even the majority’s selective quotation from defense counsel’s argument makes clear that the defense counsel cast his remarks in terms of the jury’s “responsibility for recommending to take the life of a fellow ... human being.” See supra at 1100 (quoting Tr. at 5010) (emphasis added).
This last justification offered by the majority for looking the other way in face of prosecutorial abuse — attacking the argument of the defense counsel — has ramifications well beyond this case and the fate of Mr. Fleenor. The majority’s suggestion that the argument made by defense counsel is beyond the ethical pale will have a chilling effect on every attorney in this circuit who takes on the awesome responsibility of defending a person accused of a capital crime. It will stifle the capacity of the defense to touch the consciences of the jurors- — citizens who have the right and the obligation to determine whether, under the law, the facts of the individual case require the imposition of the death penalty. Such a holding is a clear departure from the law established by the Supreme Court of the United States. See Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
4.
Because I believe that the result today is contrary to the holding of the Supreme Court of the United States in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), inconsistent with the holdings of the federal circuits that have interpreted that decision, and, in its treatment of defense counsel’s argument, constitutes a clear departure from settled precedent, I would reverse the judgment of the district court. Accordingly, I respectfully dissent.
. In Peterson, the court stated that “[a]s part of our death penalty review we will indepen*1103dently consider the jury recommendation against death and determine whether the death penalty is appropriate. However, we will not employ a standard that requires the facts in the record to so clearly point to the imposition of the death penalty that the jury’s recommendation is unreasonable.” Id. at 540.