concurring:
I join Judge Scirica’s opinion, but I write separately to note my view that the prosecutor’s remarks in his closing statement to the jury were not merely, as the Majority describes them, “irrelevant, illogical, and offensive.” Maj. Op. at 113. They were, in fact, outrageous in their direct appeal to the jury to decide the case on improper grounds and abandon the standards that our system of justice requires.
The prosecutor’s inflammatory remarks clearly were calculated to divert the jury from its sworn duty to focus on the evidence presented in the case. Indeed, here the prosecutor not only manipulated and misstated the evidence, but actually attempted to fabricate evidence that did not exist. And in such circumstances, it goes without saying that it is the defendant who suffers harm from the prosecutor’s misconduct, not the state. Certainly, we cannot assume — as the dissent does — -that given the egregious nature of the prosecutor’s remarks, the jury would automatically recognize the misconduct and therefore be more likely to acquit the defendant. Under that curious theory, the worse the prosecutorial misconduct, the better off the defendant, and the less likely there is to be a due process violation. By that reasoning, one is left to wonder how prose-cutorial misconduct could ever violate due process.
Furthermore, it bears emphasis that the curative instructions issued by the trial court were mediocre at best, and certainly did not cure the prejudicial effect of the prosecutor’s outrageous remarks. Rather than, as in Donnelly, taking “special pains” to correct the prosecutor’s improper remarks, Donnelly, 416 U.S. at 644, 94 S.Ct. 1868, here the trial judge made no effort to remove the thin veil from the prosecutor’s racist arguments by telling the jury that these arguments were, in fact, improper appeals to racial prejudice, and that such appeals should have no bearing on the case whatsoever. Moreover, the trial judge never, at any time during the trial, used the word “race” in his instructions to the jury, and the effect of the prosecutor’s invidious appeals to racial prejudice, viewed in the context of the trial as a whole, could in no way be cured by instructions that made no reference to race as a factor that the jury must exclude from its deliberations.
Finally, what makes the prejudicial impact of the prosecutor’s misconduct in this case so clear is that the evidence of Clarence Moore’s guilt was uniquely underwhelming. Judge Scirica’s opinion sets forth in detail the problems inherent in M.A.’s identification of Moore — which was *121the only relevant evidence of guilt in the entire trial — -and thus I see no need to repeat his excellent analysis here. However, I think it is worth noting that the use of hypnotically-induced identifications is controversial at best, and any concerns that we might have about the use of such identifications is heightened in a case such as this, where the identification is entirely uncorroborated. E.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.1978) (noting that “[c]enturies of experience in the administration of justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect. Of all the various kinds of evidence it is the least reliable, especially where unsupported by corroborating evidence”); see also United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (observing that “[t]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification”).
In sum, viewed through the lens of the Supreme Court’s teachings on the implications of improper prosecutorial remarks, there is no doubt that Clarence Moore was denied due process. Indeed, when I consider the facts of this case — the egregious prosecutorial misconduct, the lack of effective curative instructions, and the insubstantial evidence of guilt — I can hardly imagine a more compelling case for reversal given the dictates of established Supreme Court precedent. As such, the trial process was infected with unfairness, and the New Jersey courts unreasonably applied this precedent by not granting Moore a new trial.