Larry Romine v. Frederick J. Head , 253 F.3d 1349 ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 15, 2001
No. 99-12449
____________________________ THOMAS K. KAHN
D.C. Docket No. 96-00102-2-CV-WCO CLERK
LARRY ROMINE,
Petitioner-Appellant,
versus
FREDERICK J. HEAD, Warden,
Georgia Diagnostic and
Classification Center,
Respondent-Appellee.
_____________________________
Appeal from the United States District Court
for the Northern District of Georgia
_____________________________
(June 15, 2001)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
CARNES, Circuit Judge:
This is a death penalty case. The Georgia Supreme Court succinctly
summarized the key facts concerning the crime as follows: “Larry Romine, a
former gospel singer and occasional preacher whose descent into a life of drugs
and adultery met with severe parental disapproval and opposition, entered his
parents’ home one day while they were at work, waited for their return, and then
killed them both with a .16 gauge shotgun.” Romine v. State, 350 S.E.2d 446, 448
(Ga. 1986), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912 (1987). The murder
occurred twenty years ago and since then, to put it in colloquial terms, the case has
been tied up in the courts. For reasons we will explain, more court proceedings are
to come.
For what he did to his parents, Romine was convicted by a jury of two
counts of murder and one count of armed robbery. He was sentenced to death on
the two murder counts and to life imprisonment on the armed robbery count. In the
initial appeal, the Georgia Supreme Court affirmed all of the convictions and the
life sentence on the armed robbery count, but it reversed the death sentences on the
murder count because Romine had been denied a continuance he needed to present
2
a mitigating circumstance witness. See Romine v. State, 305 S.E.2d 93 (Ga. 1983).
At the resentencing trial in 1985 the jury in deciding upon a death sentence
found the existence of one statutory aggravating circumstance as to each murder.
The aggravating circumstance as to the murder of Romine’s mother was that he
committed it while robbing her (of her purse and a paycheck), and the aggravating
circumstance as to the murder of Romine’s father was that he committed it while
he was also engaged in committing the murder of his mother. See Romine, 350
S.E.2d at 456-57. The Georgia Supreme Court affirmed the two death sentences
on direct appeal. Id. at 457.
After losing on direct appeal, Romine pursued state collateral relief. In 1989
he filed a state habeas corpus petition in the Superior Court of Butts County,
Georgia, which was finally denied in an unpublished order in 1993. The Georgia
Supreme Court denied Romine’s application for a certificate of probable cause to
appeal the trial court’s denial of collateral relief, and the United States Supreme
Court denied certiorari in that proceeding in 1994. See Romine v. Zant, 512 U.S.
1213, 114 S. Ct. 2694 (1994).
3
In 1996, Romine filed a federal habeas corpus petition in the Untied States
District Court for the Northern District of Georgia, which the court denied in
1999. This is the appeal from that denial.
DISCUSSION
Romine raises two issues that merit discussion, one relating to an arguable
conflict of interest by trial counsel and the other involving the prosecutor’s reliance
upon Biblical authority during closing argument.1
A. THE CONCURRENT REPRESENTATION ISSUE
Romine was married to Diane Romine when the events relevant to this
appeal occurred. On February 15, 1982, she appeared pro se before Pickens
County Superior Court Judge Frank Mills, III, and pleaded guilty to charges of
forgery and theft by taking. The forgery charges stemmed from her involvement in
a scheme to obtain prescription drugs by presenting forged prescriptions to
pharmacies, and the theft by taking charge stemmed from her having stolen some
1
In addition to the two issues we discuss, Romine also contends that his counsel at the
resentencing trial rendered ineffective assistance and that his constitutional rights were violated
when a juror consulted the Bible during deliberations. In view of our disposition of the issue
involving the prosecutor’s closing argument, those other two issues are moot.
4
prescription pads from a doctor’s office.2 During the plea colloquy, Mrs. Romine
confirmed to Assistant District Attorney George Weaver that no promises had
been made to her and that she had not been offered lighter treatment for telling the
truth. After Weaver presented testimony from three witnesses who described Mrs.
Romine’s role in the crimes, Judge Mills sentenced her to ten years, five to serve
and five on probation.
George Thomas, along with his partner Mark Shriver, defended Romine at
his original trial. In his investigation of Romine’s case, Thomas was frustrated by
the reluctance of many witnesses, including Diane Romine, to provide information
about the facts surrounding the murders. Meanwhile, Thomas was himself jailed
on charges of contempt in another case, and he ended up in a jail cell with Mrs.
Romine and several other women. (Apparently, the jailer put Thomas in the
women’s cell as a joke.) During their quality time together, Mrs. Romine told
Thomas why she was incarcerated and asked him to intervene on her behalf “to see
that she got the sentence she was promised and not the sentence that she got.”
2
Mrs. Romine was originally charged with forgery and burglary. She pleaded guilty to
the forgery charges. However, at the plea colloquy she asked that the the burglary charge be
reduced to theft by taking, because she felt she had not committed a burglary. Assistant District
Attorney George Weaver agreed to reduce the charge, because, according to Weaver, “[t]here is
some question as to [whether Mrs. Romine had] authority [to enter the doctor’s office],” and
because there were “so many other felonies [i.e., forgeries]” charged in the case. Mrs. Romine
then pleaded guilty to the reduced charge of theft by taking.
5
Thomas agreed to represent Mrs. Romine in that regard. He did so in order to elicit
information about Romine’s case from the formerly uncooperative Mrs. Romine
and to enlist her help in his defense of Romine.
On March 12, 1982, seventeen days before Romine’s first trial began, Diane
Romine came back before Judge Mills for a reduction of sentence. Although she
was represented in that matter by George Thomas, the impetus for the reduction of
sentence came from Judge Mills. He set the matter in motion, and ultimately
reduced the sentence so that instead of serving five years in jail followed by five
years of probation, Mrs. Romine would only serve one year in jail to be followed
by nine years of probation. Judge Mills acted on his own, in part because of some
information that had come to his attention. The DA’s office took no position on
whether Mrs. Romine’s sentence should be reduced.
Thomas did not represent Mrs. Romine in any matter after her March 12,
1982 sentence reduction proceeding.3
Thomas had heard rumors while investigating Romine’s case that Mrs.
Romine had made a deal with the state to receive a lenient sentence in her forgery
3
There is no evidence that Thomas represented Mrs. Romine at any time during
Romine’s first trial. There is evidence, however, of his representation of Mrs. Romine at her
sentence reduction proceeding on March 12, 1982, more than two weeks before Romine’s trial.
Thomas’ name appears on the amended sentence order, and the district court found as a fact that
Thomas did represent Mrs. Romine at that proceeding.
6
case.4 However, he was unable to substantiate any of those rumors.5 On July 21,
1981, before Romine’s first trial began, Thomas filed a motion to require the state
to reveal any deals between the state and Mrs. Romine. At the August 5, 1981
hearing on that motion, District Attorney Rafe Banks, the lead prosecutor at
Romine’s first trial, stated that he did not know of any deals between the District
Attorney or the Georgia Bureau of Investigation (“GBI”) and Mrs. Romine. Mrs.
Romine herself testified that there was no deal between her and the state regarding
4
The precise nature of the rumored deal is unclear. Diane Romine had previously
worked in the Sheriff’s Office, and Thomas testified at the state habeas proceeding that he had
heard that the Sheriff wanted to prevent Mrs. Romine from revealing some information that
could damage the Sheriff’s Office or the Sheriff himself.
Thomas also testified that Mrs. Romine may have had a deal with the Georgia Bureau of
Investigation (“GBI”), but GBI agents and Mrs. Romine denied that. Mrs. Romine testified in
Romine’s first trial that she visited him in jail shortly after his arrest and, pursuant to instructions
Romine gave her during that visit, removed certain documents from his car. Later, at the state
habeas hearing, GBI Agent Fran Wiley testified that Mrs. Romine had told the GBI what she had
talked about with Romine during the jailhouse visit. Agent Wiley also testified that after Mrs.
Romine removed the documents from Romine’s car, she turned them over to the GBI. Though
Agent Wiley admitted that Mrs. Romine cooperated with the GBI to some extent, the GBI
agents and Mrs. Romine denied that any deal existed between them.
5
At the state habeas hearing Mark Shriver, the attorney who assisted Thomas in
representing Romine, testified that the District Attorney eventually “admitted that there was a
deal” that Mrs. Romine would have her sentence in the forgery case reduced in return for her
cooperation in Romine’s first trial. Shriver clarified that “[i]t wasn’t a great deal that all the
charges were going to be dropped or dismissed or anything like that, but there was some tradeoff
made.” Shriver’s testimony was based on his recollection of conversations and events that took
place around the time of the first trial, approximately ten years earlier. Thomas, and not
Shriver, was the one who primarily dealt with Ms. Romine during that time. Because all of the
other evidence and testimony presented on this issue, including that of Mrs. Romine, the GBI
agents, and the District Attorney was consistent that no deal existed, the state habeas court found
as a fact there was no deal with Mrs. Romine.
7
Romine’s case. In other words, Thomas’ motion to have any deals revealed was
granted, but the response was that no deal existed.
The first trial began on March 29, 1982, and included a familiar cast of
characters: Diane Romine appeared as a witness for the State; Judge Frank Mills,
III, who issued both the original and the amended sentences in Mrs. Romine’s
case, presided over the trial; George Thomas, who represented Mrs. Romine at her
sentence reduction proceeding, was one of two attorneys for the defense; and
George Weaver, the prosecutor in Mrs. Romine’s case and at her sentence
reduction proceeding, helped prosecute the case against Romine.
That same day, and soon after the trial began, Thomas filed a renewed
motion to require the State to reveal any deals with Mrs. Romine. He did so
because Mrs. Romine’s sentence had been reduced just seventeen days earlier. At
the hearing on that motion, Judge Mills stated into the record that he had reduced
Mrs. Romine’s sentence independently from the district attorney’s office. The
judge explained that he had acted on his own to reduce Mrs. Romine’s sentence
for several reasons. One was that a co-defendant, Ginger McIntyre, had testified
that Mrs. Romine was not as culpable in committing the forgeries as Ms. McIntyre
had depicted her to be during other testimony. The judge was also moved to be
more lenient towards Mrs. Romine by correspondence he had received pertaining
8
to her, including a letter from her parents, and because her co-defendants had
received relatively light sentences. To the judge’s knowledge, and he is the one
who reduced her sentence, there was no deal between the State and Mrs. Romine.6
When Mrs. Romine appeared as a witness for the State at the first trial, she
testified about Romine’s drug use, his adultery, and about certain events that
occurred after his parents were killed. Thomas cross-examined Mrs. Romine, but
did not attempt to impeach her with her prior convictions, her sentence reduction in
the forgery case, or her possible deals with the State. At the conclusion of that
cross-examination, Judge Mills called Thomas to the bench and asked him about
his failure to use Mrs. Romine’s prior convictions to impeach her. Thomas told the
judge that he was aware he could impeach Mrs. Romine with her prior convictions
and that he had obtained certified copies of those convictions for that purpose, but
said that he had not decided whether to make use of them. Thomas then reserved
the right to recall Mrs. Romine for cross-examination. He never did so. When
Thomas was questioned approximately ten years later at the state habeas hearing
6
Later, in testimony at the state habeas hearing, Assistant District Attorney Weaver
denied that the state had made any deals with Mrs. Romine, and GBI Special Agent Stanley
Thompson and Assistant Special Agent Fran Wiley denied the existence of any deals between
the GBI and Mrs. Romine.
9
about his failure to impeach Mrs. Romine at Romine’s original trial, he could not
remember why he did not bring up her previous convictions.
The state habeas court rejected Romine’s claim that attorney Thomas
labored under a conflict of interest because of his representation of Mrs. Romine in
connection with her resentencing. The judge reasoned that because Thomas was
not representing Mrs. Romine at the time of the trial there was no evidence of any
actual conflict of interest, and “Mr. Thomas’ actions vis-a-vis Diane Romine did
not result in any adverse impact on petitioner because Mr. Thomas was acting in an
effort to help petitioner.”
Romine raised his conflict of interest claim in his federal habeas corpus
petition, too, and the district court rejected it. Applying 28 U.S.C. § 2254(e)(1),
the court accepted the state court’s factfindings that Thomas no longer represented
Mrs. Romine at the time of the first trial, that trial having begun more than two
weeks after the conclusion of her sentence reduction hearing. The district court
also agreed with the state habeas finding that “without question Diane Romine had
no deal with the State.” Finally, the court searched the record and found no
evidence that Thomas had learned any confidential information during his brief
representation of Mrs. Romine. As a result of those key factfindings, the district
court treated the case as one involving successive representation instead of
10
simultaneous representation, and held that there was neither an active
representation of conflicting interests or an actual conflict of interest that adversely
affected the lawyer’s performance. Accordingly, it concluded that Romine had
failed to establish, as required by § 2254(d)(1), that the state habeas court’s
decision, which applied the test set out in Cuyler v. Sullivan, 446 U.S. 335, 100
S.Ct. 1708 (1980), and Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114 (1987),
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law set out in Supreme Court decisions. We agree.
Cuyler and Burger were cases involving simultaneous representation, and
the state court’s decision in this successive representation case is not contrary to
anything in either of those decisions. Nor is the state court decision on this issue
an unreasonable application of either Cuyler or Burger. Whatever might be the
result if Thomas had been representing Mrs. Romine at the time of the trial, he was
not. Whatever might be the result if Thomas had learned confidential information
during his representation of her, he did not. The same is true of any deal between
Mrs. Romine and the State relating to the charges against her or the sentence she
received. Whatever might be the result if there was such a deal, no deal existed.
And whatever might be the result if the reason that Thomas failed to
impeach Mrs. Romine with her prior convictions was his previous representation of
11
her, that was not his reason. Or at least, Romine, who had the burden on it, failed
to establish that was his reason. As the district court explained, after Mrs. Romine
gave testimony harmful to the defense during direct, Thomas used cross-
examination to elicit testimony from her that was favorable to Romine. That
testimony, which his wife was in a good position to provide, concerned Romine’s
past and his relationship with his children, his parents (the victims), with others,
and his drug use. Thomas came to the trial prepared to impeach Mrs. Romine,
having brought with him certified copies of her prior convictions, but at the
conclusion of her testimony he had not decided whether to use them. He
postponed a decision by reserving the right to call Mrs. Romine back to the stand
for that purpose, but ultimately decided not to do so.
The problem is that by the time Thomas was asked about the matter at the
state habeas hearing, a decade had passed and he could no longer remember his
reasoning about not using Mrs. Romine’s prior convictions to impeach her. But
the placement of burdens in a federal habeas proceeding means that the effect of
that problem falls on Romine. A petitioner has the burden of establishing his right
to federal habeas relief and of proving all facts necessary to show a constitutional
violation. See, e.g., Delap v. Dugger, 890 F.2d 285, 311 (11th Cir. 1989). Where,
as here, the evidence does not clearly explain what happened, or more accurately
12
why something failed to happen, the party with the burden loses. Cf. Williams v.
Head, 185 F.3d 1223, 1227-28 (11th Cir. 1999) (where due to the passage of time
trial counsel who is charged with rendering ineffective assistance does not recall all
that he did or many of his thought processes relating to the trial, we will presume
that counsel did what he should have done and that he exercised reasonable
professional judgment). Or at least it is not unreasonable – which is the standard
we are applying – for the state court to conclude that the burden-bearing party
loses.
The state habeas court reasoned that “[i]n light of the record in this case it is
just as reasonable to assume that ten years ago Mr. Thomas had a reason for acting
as he did as it is to assume that in the absence of any explanation that the failure to
impeach a certain witness was error. Petitioner has the burden of proof and has
failed to carry it ....” Whether we view that as a factfinding or a conclusion of law,
or a little of both, it is reasonable. As the district court explained, “this court
considers it unlikely Mr. Thomas’ minimal prior representation of Ms. Romine
infected his strategy on cross examination when Mr. Thomas was prepared to
impeach her with certified copies of her convictions and retained the option of
recalling Ms. Romine to impeach her but ultimately decided not to do so.”
13
The state habeas court’s decision that Thomas’ prior representation of Ms.
Romine was not an actual conflict of interest that adversely affected his
representation of Romine is not contrary to, and does not involve an unreasonable
application of, Cuyler or Burger or any other Supreme Court decision.
B. THE STATE’S EXTENSIVE RELIANCE UPON BIBLICAL AUTHORITY
IN ITS CLOSING ARGUMENT AT THE RESENTENCING TRIAL
Religion permeated virtually every aspect of the resentencing trial. There
was extensive evidence about religion and its connection to the case that was
properly admitted because it related to the crime and to Romine’s character and
behavior, and was therefore relevant to the issues before the jury. For example,
there was testimony about Romine’s religious upbringing and his subsequent
rejection of Christian values. The jury learned how Romine’s parents were deeply
religious people who had raised him in strict accordance with the tenets of their
Christian faith. Testimony described how he and Diane Romine had been very
active in local church activities at the beginning of their marriage, how they
performed in a gospel singing group, and about Romine having preached at
several churches in the area. Evidence linked Romine’s rejection of Christian
values to his descent into adultery, drug use, and murder. Indeed, Romine himself
testified that his misbehavior was attributable to the “devil’s doings.”
14
The problem is not the testimony about religion as it related to how Romine
came to be in the dock at the resentencing trial. The problem is the prosecutor
argued Biblical law to the jury as a basis for urging it to eschew any consideration
of mercy and sentence Romine to death, and that argument came against a
background of circumstances that aggravated the error. During the presentation of
evidence, Romine’s grandfather (the father of one victim and father-in-law of the
other) appeared as a witness on behalf of Romine. The prosecutor cross-examined
him about scripture, asking him whether he believed in the New Testament verse
that commanded “honor your mother and father or be put to death.”7 That alone
7
That part of the cross-examination went as follows:
Q And as far as being against the death penalty, you wouldn’t
want anybody to be electrocuted?
A No sir.
Q Not even somebody that commits the worst and most horrible
murder you can possibly imagine?
A No siree.
Q You’d automatically vote against the death penalty?
A Ever since I’ve been saved, which is forty some odd years ago.
Q What about before you were saved, would you have ... ?
A Well, really, I was just a lost man and I didn’t really think
about it or didn’t care just to tell you the truth about it. But
after I got saved and began to follow the words of the Bible
and so on and so forth ....
15
would not have been constitutionally problematic, but there was more.
After a lengthy voir dire session, the presentation of evidence took a week,
and during that time the jury was sequestered. The jurors were not sequestered and
lodged in a hotel or motel, but in the Baptist Assembly in Burnt Mountain,
Georgia.8 When the time came to recess the trial on Saturday night, the judge
Q Do you feel there’s no Biblical basis for the death penalty?
A Well, I couldn’t say. I don’t have no education on that, as far
as reading the Bible and if I can’t get it read to me why I ain’t
gonna say nothing.
Q Do you believe in the fifth commandment about honoring your
mother and father?
A I don’t believe I heard you.
Q Uh, you know the fifth commandment that says honor your
mother and your father?
A Oh yes sir, I remember that one.
Q Do you know in Matthew, the New Testament, it says honor
your mother or father or be put to death? Are you familiar
with that?
A Uh-huh.
Q No further questions.
The prosecutor did not cite the chapter and verse then, but he was obviously referring to Matthew
15:4: “For God said, ‘Honor your father and mother,’ and ‘Anyone who curses his father or mother
must be put to death.’” (New International Version).
The prosecutor would come back to that verse during closing argument.
8
Apparently, those were the best accommodations available in the area.
16
explained to the jurors that he and the attorneys were tired, and that he was not
going to hold court on Sunday. He apologized for the imposition, since the jurors
were sequestered. The judge explained that it would not be a good idea for the
jurors to go out to church because people might want to come up and talk with
them. He then told the jurors:
Uh, let me ask this, will it be a problem for you all if you do not
go tomorrow, or maybe get Brother Caylor out there, if he hasn’t
got something lined up, he might put you in a room and give you
a good sermon, as long as he don’t get on matters, uh, concerning
this.
But, uh, we can make sure you’ve got your Bibles and maybe
some, maybe some television, uh, some of them I think have
asked for television. I told them it would be alright to have your
television out there for some of you. And it might be it could be
put up in a room where more than, you know, several of you could
get there. And, uh, you might even be able to pick up that Falcon
game tonight at 7:30, gentlemen, and you ladies that like football.
But, nevertheless, if you can, see if you can attend church in the
sense that you either read your own Bible or either watch it on
television tomorrow morning. I realize that’s probably not in
keeping with some of your practices. But, uh, we do have – these
men have been working hard to get the case ready, both sides. It’s
a difficult type case to get ready and they do need to do more
work from the standpoint of helping get charges ready to go over,
what they need to do in their closing arguments and things of that
nature and they need some time. It’s very difficult for them to be
on trial all day long, then go home at night and try to get
something else prepared. It is for me too.
After admonishing the jurors not to discuss the case, the court sent them to their
17
Baptist Assembly quarters until 9:00 a.m. Monday morning. The record does not
reveal whether Brother Caylor put the jurors in a room and gave them “a good
sermon” as the judge had suggested.
Two days after the jury returned to court, the case was ready for closing
argument. The prosecution opened the arguments, to be followed by the defense.
There was to be no rebuttal argument. See O.C.G.A. § 17-10-2; Beck v. State, 326
S.E.2d 465, 469 (Ga. 1985). Towards the end of his argument the prosecutor held
up crime scene photographs of the interior of the house in which Romine murdered
his parents, and told the jury:
I apologize for showing those pictures again, but you need to see
that and realize what’s there. This is the debris we’re talking
about. [Romine] spattered his mother’s living tissue, her heart still
throbbing, pumping, ... [and] sprays it all over that picture of the
Last Supper of Christ sitting with the disciples. You know, this
home, this home that he’d grown up in where Christian values
were preached and taught and that’s the only – that’s the reason he
shot them, one of the reasons, that they were too strict ....
That argument, although graphic, was related to exhibits in evidence.
What came a page later was not. That is where the prosecutor wrapped up
his argument with a rousing call for the jury to sentence Romine to death, after
prayer if need be, because the Bible required that result:
I ask you, ladies and gentlemen, to go out there and render a
verdict that speaks the truth, and that is one that complies not
only with the law of man, the law of God and when the counsel
18
asks you ... whether there is a Biblical basis for the death
penalty and about turning the other cheek, uh, I want to submit
to you Matthew 15 verse 4. And this, you know, this is New
Testament stuff. That’s where it says turn the other cheek too.
“For God said, respect your father and your mother. And
whoever curses his father or his mother is to be put to death.”
Now, curses, it’s a – interpret the Greek word for curses, in the
amplified version it goes beyond curses and it says abuses or
treats improperly. And, uh, in Exodus 21:15, anyone who hits
his mother or father should be put to death. So all of those
things, hit, harm, abuses, mistreats, shall be put to death.
And, uh, there’s nowhere in the New Testament where it
eradicates the law. The Lord came to fulfill the law, not to
change it or abolish it.
If you go all the way back, if you go all the way back to ... [the]
Fifth Commandment, it’s the first commandment that has a
promise to it. And that is that you honor your mother and
father. You respect them, in order that your days may be long
upon this earth. And if you violate that, you subject yourself to
the possibility of not living as long as you might have lived.
And I submit to you that the penalty should fit the crime.
According to whether you curse your father, hit your father,
abuse your mother, mistreat her, or shoot her in the chest from
four feet away.
Leviticus 20 verse 9, the Lord gave the following regulation:
“Anyone who curses his father or his mother shall be put to
death.” He is responsible for his own death.
So when counsel gets up here and tells you that you are pulling
the switch in a case that if you wait five or ten years, there
might be new evidence, uh, he’s responsible for his own death.
He killed his parents, I submit to you. You’re not pulling the
switch. You’re just carrying out your duty. You took an oath
to abide by that duty. Life for life, bone for bone, eye for eye.
19
And, uh, we just submit to you folks that there is a Biblical
basis for all our laws. It’s there. You can trace it back. For
those of you, no matter how you’ve answered the question on
voir dire, don’t worry about it because if you want to – by the
way I point out that I may have been out of the courtroom at the
time, but I don’t know that we opened, uh, court with prayer
and pledge of allegiance but I submit to you, suggest to you,
that perhaps that would be a – I don’t know that that’s
appropriate, but the suggestion is there. You may want to pray
about that and be sure you’re doing the right thing and ask for
some guidance.
Because you don’t ignore totally what’s in this book just
because we’re asking you to be the judge of the law and the
facts because you take that common sense with you back there.
And the judge will tell you, you know, what is a reasonable
doubt. And he will explain to you it’s an honest, fair-minded
juror honestly seeking the truth.
You know, and in about the next sentence it uses the word
common sense and that’s what we want you to use is your
common sense.
And the State is asking for a verdict that speaks the truth in this
case and that’s the death penalty.
With that, the prosecutor sat down. Defense counsel followed with a closing
argument that quoted no scripture and did not argue religion at all.9 During its
9
The closest defense counsel came to discussing religion was the last three sentences of
his lengthy argument. There, after referring to the possibility of the jurors listening to the news
someday and hearing about Romine’s electrocution, he said:
I want you to be able to listen to that and as the smoke from that body rises
up to an almighty God, say “I knew to an absolute moral certainty that
Ginger didn’t lie, that Larry had to die.”
20
instructions, the court told the jury that “whatever penalty is to be imposed, within
the limitations of the law as I have instructed you, is a matter solely for you
members of the jury to determine,” and that “you are the judges of both the law
and facts in this case.” 10 Both the prosecutor and defense counsel during their
closing arguments had told the jury that same thing: the jurors were the judges of
both law and fact.
The prosecutor’s admonition to the jurors to base their decision on whether
If you can’t do that, give him a life sentence and let him serve his God as best
he can. I pray you’ll understand.
10
The court did tell the jurors not to consider the closing arguments as evidence.
Immediately before the state prosecutor gave his closing argument, the court told the jurors:
I caution you again that closing arguments as well as opening arguments are
not evidence in this case.... You can accept in whole or in part the arguments
of either of the attorneys or you can reject it entirely. Again, they’re not
evidence, but they are merely telling you what they think the evidence is and
what inferences may be drawn from it. If that conforms to what you found
the evidence to be in your inferences then that’s fine. If it doesn’t, then you
may reject it.
The state prosecutor repeated this caution at the beginning of his closing argument:
Ladies and gentlemen of the jury, as the court has instructed you anything I
may say in these closing remarks is not evidence and anything that [the
defense counsel] may say is not evidence ....
In addition, the court also instructed the jury at the beginning of the resentencing trial and after
closing arguments to “only consider the evidence which has been introduced during this trial,”
and that evidence “does not include the indictment or the opening statements or closing
arguments by the attorneys.”
21
Romine should live or die on Biblical law struck home with at least some of the
jurors. Linda Judkins, one of the jurors, testified at the state habeas proceeding
that, immediately after the jury began its deliberations, she and another juror
discussed one of the Biblical passages that the prosecutor had urged them to
consider.11 Although Ms. Judkins could not recall all of the details of that
conversation, she did remember it concerned the interpretation of a Biblical
passage about the proper punishment for patricide, and that during the discussion
the other juror had asked her “how I could not see that this was what the Bible says
you do with people who kill their parents.” She also remembered that the
discussion was prompted by the prosecutor’s reference to the Biblical passage in
his closing argument.12
The jury deliberated in the courtroom, because the jury room was too
cramped to hold comfortably all the evidence and jurors. Ms. Judkins testified
that, during the morning of the second day of deliberations, she noticed in the
11
Ms. Judkins never specified which juror she had this discussion with, but in another
part of her testimony she revealed that she had discussed a Biblical passage with the juror she
roomed with during the sequestration. Whether that discussion was the same one that occurred
at the beginning of deliberations or was another one is unclear.
12
The State has not argued to us that any of Ms. Judkins’ testimony should not be
considered because of Federal Rule of Evidence 606(b) or any related doctrine, and we imply no
view on that issue. In the absence of any such argument by the State, we do consider Ms.
Judkin’s testimony about her discussion with the other juror or jurors, as well as her testimony
about consulting the Bible during deliberations. See also n.20, infra.
22
courtroom a Bible that had been used to swear in witnesses. She got the Bible and
looked up a passage. The reason she did that, as she later explained, was:
[T]he closing statement of one of the attorneys ... quoted a
passage of scripture and it just didn’t sound right to me. It
sounded like it had been quoted out of context or something
was wrong with it and I just was curious about what it was that
was bothering me about it. And I had written down little pieces
of the scripture that was quoted thinking that after the case was
over I would go home and look it up and figure out what it was
that disturbed me about it.
(As we have previously explained, the prosecutor was the only one who quoted the
Bible during closing argument.) When she testified about it, Ms. Judkins could not
recall which passage she had looked up during deliberations, or whether she had
discussed that passage with any other jurors. She testified:
I really don’t think I even said anything to anybody about it.
Later on, I may have mentioned to the juror that I ... roomed
with, because I know she was interested in Biblical passages
and we had talked about [the] Bible verse that the lawyer used.
I don’t recall that I really said anything about it in the
courtroom, but I may be wrong, I may have. That was a long
time ago.
On the first day the jury got the case, after about three-and-a-half hours of
deliberations, the foreman reported to the court that “[w]e have a pretty wide
division on it right now and the consensus of most everybody here is ... that they
don’t believe they can make a decision on it, about it.” The judge sent the jury to
supper, and after it returned there were less than two hours more deliberation
23
before the evening recess. Within an hour after beginning deliberations again on
the second day, the jury sent the judge a note stating: “We are unable to reach a
unanimous decision and are certain we will not ever be able to reach one.” The
foreman reported that the division was eleven to one, although he did not say
which way. Those events prompted a defense motion for a mistrial, which under
Georgia law would have meant a life sentence, Hill v. State, 301 S.E.2d 269, 270
(Ga. 1983); the court denied the motion. Within an hour of resuming deliberations,
the jury was back with a question about mitigating circumstances; the court
recharged it on the subject. After the jury deliberated three or four more hours, the
court called the jury back and gave it an Allen charge, and denied another defense
motion for a mistrial. Following a couple more hours of deliberations, the jury
returned with its unanimous verdict sentencing Romine to death. The court
imposed that sentence as its judgment.
In his direct appeal from the resentencing judgment, Romine contended that
the prosecutor’s closing argument violated the Due Process Clause, a contention
that focused on, among other things, the prosecutor’s use of Biblical authority and
his urging that a death sentence was necessary to comply with the law of God.
The Georgia Supreme Court’s disposition of that issue, in its entirety, was as
follows:
24
On appeal, Romine for the first time complains of additional
portions of the prosecutor's closing argument. Having
examined the state's argument in its entirety, we conclude that
nowhere did the prosecutor seriously overstep his bounds. We
find no reversible error. See Davis v. State, 255 Ga. 598(16),
340 S.E.2d 869; Cook v. State, 255 Ga. 565(12C), 340 S.E.2d
843 (1986); Ford v. State, 255 Ga. 81(8i), 335 S.E.2d 567(1985); Walker v. State, 254 Ga. 149(14), 327 S.E.2d 475(1985); Spivey v. State, supra, 253 Ga. 187(4), 319 S.E.2d 420.
Romine v. State, 350 S.E.2d 446, 456 (Ga. 1986).13 The state habeas court
declined to rule on the issue because the Georgia Supreme Court already had
rejected it. See Gunter v.Hickman, 348 S.E.2d 644, 645 (Ga. 1986) (issue raised
and decided on direct appeal may not be re-litigated in state habeas proceeding).
The federal district court noted that Romine had failed to preserve the
closing argument issue at trial, but held that there was no procedural bar because
the Georgia Supreme Court had decided it on the merits. The district court also
held that independent de novo review was required because the Georgia Supreme
Court had “failed to address or apply the correct legal principles of federal law in
its decision.” But then the district court seemed to be referencing § 2254(d), by
commenting that under AEDPA “this court can only grant relief if the state court
13
The Georgia Supreme Court’s language about “additional portions of the prosecutor’s
closing argument” was a reference to contentions discussed in an earlier part of its opinion that
elsewhere in his closing argument the prosecutor had violated Georgia law by referring to the
possibility that if Romine were sentenced to life he might be released some day. Romine, 350
S.E.2d at 456. About that issue, the Court said that it “views the prosecutor’s argument with
disfavor, but we hold that it does not sink to the level of reversible error.” Id.25
decision contravenes clearly established federal law as set forth by the Supreme
Court. 28 U.S.C. § 2254(d)(1).” Whatever the effect of that comment, the district
court did finally perform de novo review, concluding: “Regarding the prosecutor’s
exhortation from the Bible, however, the court finds those comments clearly
improper but [they] do not rise to the level of a due process violation.”
We begin our analysis of this issue by noting that if there were any
procedural bar as to the Biblical reliance closing argument claim, the State has
waived it. The State did not assert a procedural bar to this specific claim in the
district court and has not argued one as to it in this Court.14 See Gray v.
Netherland, 518 U.S. 152, 166, 116 S.Ct. 2074, 2082 (1996) (“If the
misrepresentation claim was addressed at some stage of federal proceedings, the
14
The State did not argue to the district court, and has not argued to us, that the closing
argument claim as it relates to use of Biblical authority (paragraph 216 of the amended petition)
is procedurally barred. The State’s brief to us does point out that the separate claim relating to
the prosecutor beginning his closing argument by asking if court had been opened with prayer
(paragraph 215 of the amended petition) is one the district court found was procedurally
defaulted. State’s Brief at 41. That matter is not without confusion, however, because while the
amended petition and the answer to it, as well as the district court’s order, all refer to the
prosecutor beginning his argument by asking or wondering out loud if the court had opened with
prayer, that statement actually did not occur at the beginning of the prosecutor’s argument. It
happened on the next to last page of his fifty-three page closing argument. In any event, even
putting the separate claim about the prosecutor asking about prayer aside, as we will in order to
avoid getting bogged down in the procedural bar issues relating to it, the prosecutor’s extensive
reliance upon Biblical authority comprises a claim that the State does not argue is procedurally
barred from our consideration.
26
Commonwealth would have been obligated to raise procedural default as a defense,
or lose the right to assert the defense thereafter.”).
We turn now to the merits where our task involves determining whether the
Georgia Supreme Court’ s rejection of this claim was a decision “that was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
In applying the “contrary to” prong of the § 2254(d)(1) test, we look to see whether
the Georgia Supreme Court “applie[d] a rule that contradicts the governing law”
set down in United States Supreme Court decisions, or arrived at a different result
involving materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-06, 120 S.Ct. 1495, 1519-20 (2000). If so, we are “unconstrained by §
2254(d)(1) because the state-court decision falls within that provision’s ‘contrary
to’ clause.” Id. at 406, 120 S.Ct. at 1520.
The Georgia Supreme Court’s rejection of the Biblical law closing argument
claim was not an instance of a state court arriving at a result different from that in a
Supreme Court decision involving materially identical facts, because there are no
Supreme Court decisions involving a closing argument and surrounding facts that
are materially identical to those in this case.
27
There are, however, problems for the judgment on the second prong of the
“contrary to” test, which requires that we determine whether the Georgia Supreme
Court applied a rule that contradicts the governing law set down in United States
Supreme Court decisions. Id. To begin with, it is far from clear what, if any, rule
of federal law the Georgia Supreme Court applied. Its entire three-sentence
discussion of the issue simply finds “no reversible error” based upon the bare
conclusion that “nowhere did the prosecutor seriously overstep his bounds.”
Romine, 350 S.E.2d at 456. A string cite to five state court decisions are all the
authority that is given. Id. To top things off, the State’s brief tells us that “it is
difficult to fault the state appellate court for not applying federal law in its
decision,” which clearly seems to concede that the Georgia Supreme Court did not
apply federal law.15
15
The entire statement as it appears in the State’s brief is as follows: “With all due
respect, it is difficult to fault the state appellate court for not applying federal law in its decision
when Petitioner cited none for the second challenged portion of argument and cited only
Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633 (1985)] for the first challenged portion
and whether it was applicable authority was not clear at that juncture.” State’s Brief at 44. The
“first challenged portion” of the argument, it is clear from the context, is the part in which the
prosecutor argued that the jury should impose the death penalty because it complied with the will
of God as set out in the Bible. See State’s Brief at 42 - 43. (The “second challenged portion” was
the prosecutor’s argument about the blood and tissue of Romine’s mother being splattered on the
painting of the Last Supper.)
We realize, of course, that the State’s apparent concession that the Georgia Supreme
Court did not apply federal law in deciding this claim is inconsistent with its failure to challenge
the district court’s holding that there is no procedural bar as to the claim because the state
supreme court decided it on the merits. But nothing prevents the State from waiving any
procedural bar defense it has, see Netherland, 518 U.S. at 166, 116 S.Ct. at 2082, or making any
28
Given all these factors, especially the State’s concession, we have grave
doubt that the Georgia Supreme Court applied federal law at all, let alone the
governing law set down in Supreme Court decisions. Failure to apply that
governing law (or the same rule in state law) is tantamount to applying a rule that
contradicts governing law, for these purposes. And under Williams that means the
federal habeas court “will be unconstrained by § 2254(d)(1) because the state-court
decision falls within that provision’s ‘contrary to’ clause.” 529 U.S. at 405-06, 120
S.Ct. at 1519-20. In other words, when there is grave doubt about whether the
state court applied the correct rule of governing federal law, § 2254(d)(1) does not
apply. That is what we have here, so we proceed to decide the issue de novo, as
the district court did.
The law relating to prosecutorial argument at the sentencing stage of a
capital case has been settled in this circuit since four en banc decisions on the
subject were released in Georgia cases 16 years ago. See Brooks v. Kemp, 762
F.2d 1383 (11th Cir. 1985) (en banc), vacated on other grounds, 478 U.S. 1016, 106
S.Ct. 3325 (1986), reinstated, 809 F.2d 700 (1987) (en banc); Drake v. Kemp, 762
F.2d 1449 (11th Cir. 1985) (en banc); Tucker (William) v. Kemp, 762 F.2d 1480(11th Cir. 1985)(en banc), vacated on other grounds, 474 U.S. 1001, 106 S.Ct. 1517concessions it feels appropriate.
29
(1985), extended and reinstated, 802 F.3d 1293 (11th Cir. 1986) (en banc); Tucker
(Richard) v. Kemp, 762 F.2d 1496 (11th Cir. 1985) (en banc). Under that well-
settled law, habeas relief is due to be granted for improper prosecutorial argument
at sentencing only where there has been a violation of due process, and that occurs
if, but only if, the improper argument rendered the sentencing stage trial
fundamentally unfair. See Brooks, 762 F.2d at 1400; Drake, 762 F.2d at 1458; see
also Spivey v. Head, 207 F.3d 1263, 1275 (11th Cir. 2000). An improper
prosecutorial argument has rendered a capital sentencing proceeding fundamentally
unfair if there is a reasonable probability that the argument changed the outcome,
Brooks, 762 F.2d at 1401, which is to say that absent the argument the defendant
would not have received a death sentence. A reasonable probability is one that is
sufficient to undermine confidence in the outcome. Id. (citation omitted); Drake,
762 F.2d at 1458; Spivey, 207 F.3d at 1275-76.
The first step in analyzing any sentence stage prosecutorial argument is to
determine if it is improper, because no matter how outcome-determinative it is a
proper argument cannot render the proceedings fundamentally unfair and therefore
cannot be the basis for a constitutional violation. Brooks, 762 F.2d at 1403 (“A
permissible argument, no matter how ‘prejudicial’ or ‘persuasive,’ can never be
30
unconstitutional.”); Spivey, 207 F.3d at 1276 (“Proper arguments, regardless of
their impact on the outcome of the case, do not render a trial unfair.”).
We have had only a few decisions involving prosecutorial sentence-stage
argument employing Biblical authority. In Cunningham v. Zant, 928 F.2d 1006,
1019-20 (11th Cir. 1991), we recounted a number of closing remark improprieties
the prosecutor had made, and included in that list his “numerous appeals to
religious symbols and beliefs, at one point even drawing an analogy to Judas
Iscariot.” (footnote omitted). A closer fit to the present case is our observation in
Cobb v. Wainwright, 609 F.2d 754, 755 n.2 (5th Cir. 1980), that: “In his zeal to
obtain a death sentence, the prosecutor made several clearly objectionable, and
objected to, remarks. For example, at one point in his argument, the prosecutor
resorted to the Bible. He told the jury that under its teachings there was no reason
to show the defendants mercy.” That is exactly what the prosecutor used scripture
to persuade the jury in this case: that mercy was out of the question for anyone
who murdered his parents; that under the law of God death is the mandatory
penalty for patricide. It was as though the prosecutor sought to overrule, as far as
this jury was concerned, Roberts (Harry) v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993(1977) (holding mandatory death penalty statute unconstitutional), Woodson v.
31
North Carolina, 428 U.S. 280, 96 S.Ct. 2978 (1976) (same), and Roberts
(Stanislaus) v. Louisana, 428 U.S. 325, 96 S.Ct. 3001 (1976) (same).
The prosecutor’s misuse of scripture in this case is improper for the same
reason it is improper for prosecutors to use the now-infamous Eberhart quotation,
which we have condemned on at least seven occasions. See Nelson v. Nagle, 995
F.2d 1549, 1555-58 (11th Cir. 1993) (holding the use of the Eberhart quotation in
sentence-stage closing argument improper and citing six other decisions reaching
the same conclusion). Eberhart v. State, 47 Ga. 598 (1873), is a Reconstruction-era
Georgia Supreme Court opinion in a capital murder case which contains a tirade
against mercy.16 The opinion rails against “that sickly sentimentality that springs
into action whenever a criminal is at length about to suffer for crime,” complains
that “[w]e have had too much of this mercy,” which “is not true mercy,” because
“[i]t only looks to the criminal,” and so forth.17 The Eberhart opinion was
discovered by Georgia prosecutors in the post-Furman capital punishment era, and
some of them delighted in quoting from it to juries during closing argument at the
sentence stage of capital cases. See Potts v. Zant, 734 F.2d 526, 535 (11th Cir.
16
The interesting historical context in which the Eberhart opinion was issued is
discussed in Drake v. Kemp, 762 F.2d 1449, 1467-69 (11th Cir. 1985) (en banc) (Hill, J.,
concurring).
17
The longer quotations from Eberhart that prosecutors used can be found in Nelson,
995 F.2d at 1556, and the other of our Eberhart issue decisions cited therein.
32
1984) (“The Eberhart court’s florid denunciation of ‘that sickly sentimentality’ that
prompts some citizens to oppose the death penalty appears to have made it a
particular favorite of some Georgia prosecutors ....”), vacated on other grounds,
478 U.S. 1017, 106 S.Ct. 3388 (1986), reinstated, 864 F.2d 1512 (1987).18
Sometimes the prosecutors attributed the Eberhart quotation to “the Justice
of the Supreme Court of Georgia,” Drake, 762 F.2d at 1458; sometimes to “one of
our noted justices,” Bowen v. Kemp, 769 F.2d 672, 681 (11th Cir. 1985);
sometimes to “a judge,” Nelson, 995 F.2d at 1556; and sometimes to “a noted legal
scholar from the 1800's,” Wilson v. Kemp, 777 F.2d 621, 623 (11th Cir. 1985).
Regardless of the source to which the prosecutors attributed it, however, we
have always condemned use of the Eberhart quotation at the sentence stage of a
capital case, describing it variously as “improper,” Bowen, 769 F.2d at 681;
“clearly improper,” Potts, 734 F.2d at 536; “highly improper,” Presnell v. Zant,
959 F.2d 1524, 1529 (11th Cir. 1992); and “undeniably wrong,” Drake, 762 F.2d at
1459. The reason its use is improper, as we have explained, is that invoking the
authority of a court, judge, or legal scholar to persuade the jury that mercy can
have no place in a capital sentencing proceeding is undeniably wrong. Drake, 762
F.2d at 1459; Wilson, 777 F.2d at 626 (“[W]hen the prosecutor argues that it is
18
Six of the seven Eberhart quotation cases that made it to our court were from Georgia,
while the seventh, Nelson, was from Alabama. We can only infer that the technique spread west.
33
mercy itself that is inappropriate, the jury is told that the concept of mercy – the
most significant factor which might point toward a choice of life imprisonment – is
illegitimate.”); cf. Brooks, 762 F.2d at 1410 (“Because the jury is empowered to
exercise its discretion in determining punishment, it is wrong for the prosecutor to
undermine that discretion by implying that he, or another high authority, has
already made the careful decision required.”).
The Eberhart argument is wrong on the law, because mercy is acceptable in
post-Furman capital sentencing regimes, and if anything, is particularly favored
under Georgia’s statute, which permits the jury in its unbridled discretion to
impose a life sentence regardless of the number or strength of aggravating
circumstances. See Drake, 762 F.2d at 1459 (“In the current Georgia capital
punishment regime, the sentencing jury has complete discretion to choose between
life imprisonment or death after the finding of one statutory aggravating
circumstance.”); Tucker, 762 F.2d at 1504 n.10 (“Once such a circumstance has
been found, the jury has complete discretion to impose death or life imprisonment
as a punishment.”). Telling a Georgia capital sentencing jury that the state
supreme court, or a justice of it, or some judge or legal scholar has decided that
they should not even consider mercy misleads the jury about one of its central
34
tasks, which is to decide whether the individual, convicted murderer standing
before it should receive mercy.
Likewise, a prosecutor misleads a capital sentencing jury when he quotes
scripture as higher authority for the proposition that death should be mandatory for
anyone who murders his parents. And that is what this prosecutor argued to the
jury: In the Bible God said that anyone who kills his parents should be put to
death, no “if’s,” “and’s,” or “but’s” about it. That may or may not be Biblical law,
but it is not post- Furman capital punishment law.
If, instead of quoting scripture, the prosecutor in this case had attributed the
same pronouncements found in the scriptures he quoted to the Georgia Supreme
Court or a justice or other noted legal authority, we know from our decisions
dealing with the Eberhart quotation, that the argument would have been improper.
It is no less improper to attribute the same abjuration of mercy to the higher
authority of the Bible.19 The possibility always exists that some jurors will be at
least as impressed by Biblical authority as by the authority of a court or a legal
scholar. Recall that two of the jurors who decided Romine’s fate actually
19
We have previously acknowledged in a capital case that “translating facts into a penalty
is an ethical operation,” see Brooks, 762 F.2d at 1407. In this case, we have no occasion to
decide, and imply no view about, whether quoting scripture in closing argument in a capital
sentence proceeding will always be improper. We decide only that the particular use to which
scripture was put in this case was improper.
35
discussed the meaning and effect of one of the scriptures the prosecutor urged on
them, and one juror consulted a Bible to make sure that the prosecutor had one of
the Bible verses right. It mattered to her.
Because the prosecutor’s extensive reliance upon anti-mercy scripture was
improper in this case, we turn now to the second step of the legal analysis, which is
to determine if the improper argument warrants habeas relief. Not all improper
prosecutorial arguments require relief, because not all of them render the
proceeding unfair, which is the measure of a due process violation. See Darden v.
Wainwright, 477 U.S. 168, 179-81, 106 S.Ct. 2464, 2470-71 (1986) (relief not
required merely because the argument “deserves the condemnation it has received
from every court to review it”). A sentence proceeding is rendered unfair by an
improper argument if, absent the argument, there is a reasonable probability that
the result would not have been a death sentence, a reasonable probability being one
which undermines our confidence in the outcome. See Spivey, 207 F.3d at 1275-
76; Williams v. Kemp, 846 F.2d 1276, 1283 (11th Cir. 1988) (“[A]lthough we
wholeheartedly condemn the prosecutor’s remarks, we do not believe that these
comments rendered Williams’ sentencing proceeding fundamentally unfair.”);
Brooks, 762 F.2d at 1401; Tucker, 762 F.2d at 1504-05; Drake, 762 F.2d at 1458.
In making this prejudice determination, “[o]f primary importance is the need to
36
examine the entire context of the judicial proceeding.” Brooks, 762 F.2d at 1400;
accord, Cargill v. Turpin, 120 F.3d 1366, 1382 (11th Cir. 1997) (“after a thorough
review of the full context of the sentence proceeding ...”); Gates v Zant, 863 F.2d
1492, 1503 (11th Cir. 1989) (“Considering the totality of the circumstances ....”).
The circumstances here include a sentence stage trial saturated with evidence
relating to religion, in which the jurors are sequestered at a Baptist assembly,
where the judge suggested having “Brother Caylor out there” put the jurors in a
room and “give you a good sermon.”20 Then the prosecutor in his closing
argument gave the jurors a hell fire and brimstone mini-sermon the effect of which
was to tell them that regardless of the law of Georgia, they ought to follow the law
of God, as the prosecutor interpreted it to rule out any consideration of mercy.
“[I]solated, or ambiguous or unintentional remarks must be viewed with
lenity,” Brooks, 762 F.2d at 1400, and a brief remark is less likely to cause
prejudice. Id. at 1415. However, there was nothing ambiguous or unintentional
20
Romine presented as a separate claim for relief the juror consulting a Bible during
deliberations, and may have presented as a separate claim the lodging of the jurors at the Baptist
Assembly. The district court found those claims were procedurally barred from consideration,
the state has argued that bar to us, and we do not dishonor it. Our decision that relief should be
granted is not based on either of those claims. We do, however, consider the facts underlying
them as part of the totality of the circumstances that we must consider now that we have reached
the prejudice prong of the prosecutorial argument claim. There is no requirement that a
defendant object to every circumstance relevant to the determination of whether there was
prejudice from an error contained in a claim for which there was no procedural default (or, as
with this closing argument claim in the present case, a claim for which any procedural default
has been waived).
37
about the prosecutor’ s improper argument in this case, and it was more than a brief
remark. Instead of being “fairly isolated within the body of the prosecutor’s
argument,” Bowen, 769 F.2d at 681-82, these improper remarks were strategically
placed at the end. It can make a difference if the improper argument was preceded
by remarks of defense counsel which invited it, see Darden, 477 U.S. at 179, 106
S.Ct. at 2470, or if it was followed by defense argument which ameliorated the
error, see id. at 182, 106 S.Ct. at 2472; Cargill, 120 F.3d at 1379; Gates, 863 F.2d
at 1503; Tucker (William), 762 F.2d at 1488. Here there was no invitation –
defense counsel had not even argued at that time – nor was there any responsive
argument that adequately ameliorated the effect of it.
An on-the-spot curative instruction from the court can make a difference, or
failing that, improper argument can sometimes be remedied by the final
instructions to the jury. Cargill, 120 F.3d at 1379; Brooks, 762 F.2d at 1400. There
was no curative instruction from the court at the time of the argument, and the final
instructions to the jury did not effectively cure the error, either. The court and both
counsel did tell the jury that closing arguments were not evidence, but that did not
help because the problem with this improper argument is not that it misstated the
evidence, but that it misstated the law. The court’s instructions to the jury, as well
as both sides’ arguments, stressed that the jurors were the judges of the law as well
38
as the evidence. That did not help, either; instead, it may have hurt by leading
some jurors to believe that they could substitute the Biblical law urged upon them
by the prosecutor for the law of Georgia.
In most cases we are left to speculate about what effect, if any, closing
argument may have had on the jury, but here we know that this improper argument
led at least two members of the jury into a discussion about its content, a
discussion in which one of them argued to the other the precise point of the
improper argument. And we know that a juror cared enough about the argument to
check one of the scriptures that the prosecutor had used in order to ensure that he
had quoted it correctly.
Of course, the relative strength of the aggravating and mitigating
circumstances is an important factor to be considered in deciding whether there is a
reasonable probability that but for the improper argument the result might have
been different. See Cargill, 120 F.3d at 1379; Brooks, 762 F.2d at 1415-16;
Tucker (Richard), 762 F.2d at 1509. One ready measure of that in this case is the
fact that the jury in this case was initially deadlocked on whether the sentence
should be life or death. The foreman initially told the judge that there was a wide
division and the jurors did not believe they could reach a decision, which under
Georgia law would have resulted in a life sentence. See Hill v. State, 301 S.E.2d
39269, 270 (Ga. 1983). After an overnight recess and further deliberations, the jury
sent the court a note announcing with certainty that it would never be able to reach
a unanimous decision. Only after the court gave the jurors an Allen charge did
they finally reach a verdict. The difficulty the jury had in reaching a verdict,
especially when coupled with the evidence that one or more jurors were affected by
the improper argument, weighs in favor of concluding that there is a reasonable
probability that argument may have affected the result.
The primary factor weighing against a finding that the improper argument
rendered the sentencing proceeding unfair is the lack of any contemporaneous
objection to it. See Cargill, 120 F.3d at 1379; Williams, 846 F.2d at 1283 (“[T]hat
no objection was made during the prosecutor’s closing argument further supports
our belief that the statement was not severe enough to render the sentencing
hearing fundamentally unfair.”); Brooks, 762 F.2d at 1397 n.19 (the absence of an
objection “may demonstrate defense counsel’s belief that the live argument,
despite its appearance in a cold record, was not overly damaging”). We have
considered that, and given it weight, but the factors pointing in the other direction
in this case outweigh the implications of counsel’s failure to object. See Drake,
762 F.2d at 1460-61 & n.16 (relief due because of improper Eberhart quotation
argument notwithstanding the absence of any contemporaneous objection to it).
40
We have previously described why the improper argument here is closely
analogous to the Eberhart quotation argument which we have found to be improper
all seven times we have considered it. The scripture-quoting argument in this case,
like the Eberhart-quoting argument, strikes at the heart of one of a Georgia jury’s
most important roles in a capital sentence proceeding, which is to make an
individualized determination of whether mercy should be afforded in a specific
case to a particular defendant. In six of the seven cases in which this Court has
considered the Eberhart quotation argument, we have decided that its use rendered
the sentence proceeding unfair, concluding that it undermined our confidence in
the result to such an extent that habeas relief was required. See Nelson, 995 F.2d
at 1557-58. We reach the same conclusion here. In view of all of the facts and
circumstances, the prosecutor’s improper argument in this case undermines our
confidence in the sentencing result to such an extent that habeas relief is required
as to the sentence.21
21
The circumstances of this case are unusual. We have no reason to decide, and do not
mean to imply any view about, whether the same result would follow if, for example, the jurors
had not been sequestered in a Baptist assembly and had not been told about getting a good
sermon from Brother Caylor, or if the prosecutor’s argument had come in reply to argument by
the defense or had been responded to in kind by the defense, or if there had been a curative
instruction, or if there had been no evidence that the argument had struck home with some jurors,
or if the jury had not been initially deadlocked, or if the effect of a deadlock had been different
under Georgia law, and so forth. We have decided this case, as we are required to do, based upon
all of the specific facts and circumstances presented in it. See Cargill,120 F.3d at 1382; Gates,
863 F.2d at 1503; Brooks, 762 F.2d at 1400.
41
CONCLUSION
The district court’s judgment is AFFIRMED to the extent that it denies
habeas relief as to the conviction, but it is REVERSED to the extent that it denies
habeas relief as to the sentence. The case is REMANDED to the district court for
further proceedings consistent with this opinion.
42