NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

         4.4 Prosecutorial Misconduct
               4.4.1  Prosecutorial Expertise
               4.4.2  Possibility Of Escape
               4.4.3  Role Of Aggravating And Mitigating Circumstances
               4.4.4  Deterrence
               4.4.5  Inflammatory Comments
               4.4.6  Diminished Jury Responsibility
                         4.4.6.1  Retroactivity Of Caldwell v. Mississippi

The constitutional restraints on a prosecutor’s comments during the guilt phase, see § 3.3, also apply to the capital sentencing phase. Improper closing argument by a state prosecutor in a capital sentencing hearing justifies federal habeas corpus relief only if the argument rendered the capital sentencing hearing fundamentally unfair.

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (ruling on alleged guilt phase prosecutorial misconduct as establishing “fundamental fairness” standard for reviewing prosecutorial misconduct).

Assertions of expertise (“vouching”) on the part of the prosecutor during sentencing is improper when it undermines the jury’s perception that it has discretion to determine the appropriate sentence. Such improper assertions in sentencing argument, however, do not always render the sentencing proceeding “fundamentally unfair.”

United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993) (describing factors to consider in determining improper prosecutorial vouching).

Nelson v. Nagle, 995 F.2d 1549 (11th Cir. 1993) (granting relief because prosecution’s reading during closing sentencing argument of portion of state case discouraging mercy rendered penalty phase of trial fundamentally unfair).

Johnson v. Wainwright, 778 F.2d 623 (11th Cir. 1985) (holding prosecutor’s closing comments at sentencing regarding limited number of times his office seeks death penalty and personal opinion that death penalty is warranted in this case constituted prosecutorial misconduct because undermined jury’s perception that it had unfettered discretion to decline to impose the death penalty, but in context of entire sentencing proceeding, did not render trial fundamentally unfair), cert. denied, 484 U.S. 872 (1987).

Tucker v. Kemp, 762 F.2d 1496, 1505 (11th Cir. 1985) (en banc) (holding sentencing opening argument invoking prosecutorial expertise was improper but did not render trial fundamentally unfair).

Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc) (finding harmful prosecutorial misconduct where prosecutor invoked hundred-year- old cases suggesting with apparent weight of state supreme court that mercy is inappropriate consideration for jury to use in sentencing), cert. denied, 478 U.S. 1020 (1986).

Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc) (holding prosecutor’s discussion of his seeking death in only a few cases improperly implied that prosecutor’s office had already made careful determination that case warranted death penalty but did not render trial fundamentally unfair), vacated on other grounds, 478 U.S. 1016 (1986).

The Ninth and Eleventh Circuits have held that references in sentencing argument to the potential harm to witnesses if defendant were to escape are proper because they relate to future dangerousness.

Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir. 1987) (holding statement in sentencing rebuttal argument regarding potential harm to trial witnesses “if jury did not protect them,” although suggesting possibility of escape, was not improper because jury may speculate about what defendant might do if released), cert. denied, 488 U.S. 948 (1988).

Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (holding arguments regarding possibility of escape were proper because they were arguments about future dangerousness which were appropriate inferences from record before jury), vacated on other grounds, 478 U.S. 1016 (1986).

The Fifth Circuit has held that in closing arguments during the sentencing phase of a trial, a prosecutor cannot distract the jury from its duty to focus on the aggravating and mitigating circumstances of the crime. If a prosecutor’s arguments make rational assessment by the jury unlikely, then the sentencing hearing is fundamentally unfair.

Kirkpatrick v. Blackburn, 777 F.2d 272, 283–84 (5th Cir. 1985) (holding prosecutor’s references to law on defense of others improperly distracted jury from focus on aggravating and mitigating circumstances but not so prejudicial as to render trial fundamentally unfair), cert. denied, 476 U.S. 1178 (1986).

The Eleventh Circuit has held that a capital sentencing jury may properly consider deterrence.

Davis v. Kemp, 829 F.2d 1522, 1528 (11th Cir. 1987) (holding prosecutor may argue that death penalty serves as deterrent, citing statement in Brooks that deterrence is appropriate subject of jury consideration), cert. denied, 485 U.S. 929 (1988).

Drake v. Kemp, 762 F.2d 1449, 1459-60 (11th Cir. 1985) (holding prosecutor may argue deterrence of death penalty during argument at sentencing because under Gregg v. Georgia deterrence is valid rationale for imposing death penalty), cert. denied, 478 U.S. 1020 (1986).

Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc) (stating deterrence is proper consideration of a sentencing jury in a capital case), vacated on other grounds, 478 U.S. 1016 (1986).

Inflammatory comments by a prosecutor during sentencing warrants relief for prosecutorial misconduct only if they meet the “fundamental unfairness” standard.

Nefstad v. Baldwin, 66 F.3d 335 (9th Cir. 1995) (unpublished) (holding no violation of due process where prosecutor during closing argument shows photographs of victim before and after murder because relevant to intent), cert. denied, 516 U.S. 1081 (1996).

Williams v. Calderon, 48 F. Supp. 2d 979 (C.D. Cal. 1998) (granting summary judgment for state on petitioner’s habeas claim where prosecutor used analogy of caged versus wild tiger, comparing petitioner to the wild tiger in penalty phase closing argument).

Kennedy v. Dugger, 933 F.2d 905 (11th Cir. 1991) (holding prosecutor’s argument that allegedly invited jury to put themselves in position of victim upheld as permissible comment on defendant’s future dangerousness), cert. denied, 502 U.S. 1066 (1992).

Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991) (holding prosecutor’s “outrageous” statements that he was personally offended by defendant’s exercise of his right to trial and that defendant had abused the legal system by exercising that right inflamed and misinformed the jury and were therefore improper; court did not reach prejudice issue because sentence reversed on other grounds).

Smith v. Black, 904 F.2d 950 (5th Cir. 1990) (holding prosecutor’s presentation of evidence of rape at sentencing phase proper because tended to support aggravating factor of “especially heinous, atrocious or cruel”), vacated on other grounds, 503 U.S. 930 (1992).

Burden v. Zant, 903 F.2d 1352 (11th Cir. 1990) (holding references during sentencing closing to publicity and public anger not prosecutorial misconduct), rev’d on other grounds, 498 U.S. 433 (1991).

Gates v. Zant, 863 F.2d 1492 (11th Cir.) (holding prosecutor’s “war on crime” argument improper but harmless error), cert. denied, 493 U.S. 945 (1989).

Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988) (prosecutor’s sentencing phase closing argument that defendant was trained to kill in the Marine Corps, although offensive and undesirable, did not render the sentencing proceeding fundamentally unfair because argument was “obvious overstatement and its factual incorrectness [wa]s readily apparent”), cert. denied, 494 U.S. 1090 (1990).

Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987) (holding prosecutorial arguments that jurors were like soldiers fighting for their country, death penalty a deterrent to crime, retribution and future dangerousness were factors justifying imposition of death penalty, and that jury had duty to impose death, did not render sentencing proceeding fundamentally unfair), cert. denied, 485 U.S. 929 (1988).

Wilson v. Kemp, 777 F.2d 621 (11th Cir. 1985) (holding sentencing proceeding rendered fundamentally unfair by prosecutor’s argument emphasizing jury’s duty to show mercy to society rather than defendant and express society’s moral outrage), cert. denied, 476 U.S. 1153 (1986).

Mark S. Davies, Comment, Enlisting the Jury in the “War on Drugs:” A Proposed Ban on Prosecutor’s Use of “War on Drugs” Rhetoric During Opening and Closing Argument of a Narcotics Trial, 1994 U. Chi. Legal F. 395 (1994) (addressing use of “war on drugs” rhetoric in prosecutor’s argument).

The Supreme Court has held that there is a specific prohibition in capital cases against arguments that have the effect of misleading the jury about its role in sentencing. Caldwell v. Mississippi, 472 U.S. 320 (1985). The Caldwell Court stated that it is “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328–329 Thus, such statements are unconstitutional because they indicate that the jury’s decision would automatically be reviewed by a higher court and, therefore, the jury’s decision would not be the final decision in the case. The Court in Caldwell held that the danger from these statements–that the jury would minimize the importance of its role–violates the Eighth Amendment requirement that the jury make an individualized decision that death is the appropriate punishment in a specific case.  

In Dugger v. Adams, 489 U.S. 401, 407 (1989), the Court stated that to establish a Caldwell violation, a defendant must show that the remarks to the jury “improperly described the role assigned to the jury by local law,” minimizing their sense of true responsibility.

The Ninth Circuit has reversed a death sentence because the prosecutor’s closing argument invoked biblical passages that undercut the jury’s sense of responsibility to impose the appropriate sentence. Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000), cert. denied, 534 U.S. 847 (2001).

Dugger v. Adams, 489 U.S. 401 (1989) (holding no basis for Caldwell claim because to establish Caldwell violation, defendant necessarily must show that remarks to jury improperly described the role assigned to the jury by local law, and defendant here made no objection to challenged jury instructions under local law).

Darden v. Wainwright, 477 U.S. 168 (1986) (holding Caldwell not violated by prosecutor’s statements at guilt stage which could not have misled the jury into thinking it had a reduced role in the sentencing process).

Caldwell v. Mississippi, 472 U.S. 320 (1985) (holding closing argument that responsibility for determining appropriateness of death sentence rested with state supreme court and not jury was improper because it diminished jury’s sense of responsibility for determining death sentence, in violation of Eighth Amendment).

Sandoval v. Calderon, 241 F.3d 765 (9th Cir. 2000) (reversing death sentence where prosecutor invoked biblical passages in closing argument commonly understood as sanctioning the death penalty), cert. denied, 534 U.S. 847 (2001).

Anderson v. Calderon, 232 F. 3d 1053 (9th Cir. 2000) (finding that judge’s comments to jury at resentencing–that petitioner had been sentenced to death by a prior jury and the sentence was reversed on automatic appeal because of “technical questions” with the sentence–did not rise to Caldwell violation), cert. denied, 534 U.S. 1036 (2001), reh’g and reh’g en banc denied, 276 F.3d 483 (9th Cir. 2001).

Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993) (holding prosecution’s passing reference to defendant’s right to appeal did not indicate jury’s diminished responsibility and thus proper under Caldwell; jury instructions also made jury responsibility clear), cert. denied, 510 U.S. 1191 (1994).

Campbell v. Kincheloe, 829 F.2d 1453, 1460–61 (9th Cir. 1987) (holding statement in sentencing closing argument that jury should not debate the death penalty but only determine if there are mitigating factors sufficient to merit leniency was proper because was only general comment on validity of death penalty, and no prejudice because trial court clearly instructed jury on its proper role), cert. denied, 488 U.S. 948 (1988).

Antwine v. Delo, 54 F.3d 1357 (8th Cir. 1995) (holding prosecutor’s statements during penalty phase closing argument indicating death sentence would be quick, instantaneous process diminished jurors’ sense of responsibility for imposing deathpenalty and thus violated due process), cert. denied, 516 U.S. 1067 (1996).

Gaskins v. McKellar, 916 F.2d 941 (4th Cir. 1990) (holding evidence that defendant’s prior death sentence was vacated does not diminish jury’s sense of responsibility by leading it to believe its sentence was advisory only, and is proper under Caldwell), cert. denied, 500 U.S. 961 (1991).

Theodore Eisenberg et al., Jury Responsibility in Capital Sentencing: An Empirical Study, 44 Buff. L. Rev. 339 (1996) (addressing issues surrounding jury responsibility in capital sentencing, and suggesting reforms).

In Sawyer v. Smith, 497 U.S. 227 (1990), the Supreme Court affirmed the Fifth Circuit’s conclusion that Caldwell states a “new rule” under Teague v. Lane and is thus not retroactive. Therefore, a habeas petitioner whose conviction was final at the time Caldwell was decided (June 11, 1985) is barred from pursuing a Caldwell claim and is entitled to relief for prosecutorial misconduct only under the pre-Caldwell standard of Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (“improper prosecutorial arguments. . .vitiate a sentencing proceeding only if they render the proceedings fundamentally unfair”).

Sawyer v. Smith, 497 U.S. 227 (1990) (holding Caldwell announces a “new rule” and is not retroactively applicable under Teague).

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (stating “improper prosecutorial arguments . . . vitiate a sentencing proceeding only if they render the proceedings fundamentally unfair”).