IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to prohibit prosecutorial misconduct at his trial. In support of his motion, Mr. CLIENT states as follows:
Mr. CLIENT has previously been tried, convicted and sentenced to death. The Supreme Court reversed due to violations of his constitutional rights. He is now back for retrial, and the State apparently intends to seek the death penalty anew.
A. INTRODUCTION

1. Since this is to be a capital prosecution, exacting standards must be met to assure that it is fair. "The fundamental respect for humanity underlying the Eighth Amendment's proscription against cruel and unusual punishment gives rise to a special `"need for reliability in the determination that death is the appropriate punishment"' in any capital case." Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d 575, 584 (1988) (quoting Gardner v. Florida, 430 U.S. 349, 363-64, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (White, J., concurring).
2. A few introductory remarks are important as to the general scope of closing argument in a capital case. A person on trial for his life is entitled, under the Eighth and Fourteenth Amendments, to fundamental fairness, Houston v. Estelle, 569 F.2d 372 (5th Cir. 1978); to a reliable determination of punishment, Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977); and to an individualized determination of punishment guided by clear, objective, and evenly-applied standards. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Improper argument by the District Attorney may violate these constitutional rights in various ways. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); Williams v. State, 445 So. 2d 798, 810-12 (Miss. 1984); Wiley v. State, 449 So. 2d 756 (Miss. 1984); Brooks v. Kemp, 762 F.2d 1383, 1394-1416 (11th Cir. 1985) (en banc), vacated on other grounds, 478 U.S. 1016 (1986), on remand, 809 F.2d 700 (11th Cir. 1987); Drake v. Kemp, 762 F.2d 1449, 1457-61 (11th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986); Tucker (William Boyd) v. Kemp, 762 F.2d 1480, 1484-89 (11th Cir. 1985) (en banc), vacated and remanded, 474 U.S. 1001 (1985), adhered to on remand, 802 F.2d 1293 (11th Cir. 1986) (en banc); Tucker (Richard) v. Kemp, 762 F.2d 1496, 1503-1509 (11th Cir. 1985) (en banc), subsequent history, 776 F.2d 1487 (11th Cir. 1985), cert. denied, 478 U.S. 1022 (1986).
3. Improper prosecutorial argument does not just offend due process or the Eighth Amendment. Prosecutorial misconduct may be so offensive it will raise a double jeopardy bar to retrial. See, e.g., United States v. Jorn, 400 U.S. 470, 485, 91 S. Ct. 547, 557, 27 L. Ed. 2d 543 (1971). Improper argument is particularly objectionable when the prosecutor seeks to stray close to the borderline of constitutional error, but not over it, seeking to prejudice the accused, but carefully planning to stop just short of assuring a later, fairer trial.
4. Additionally, improper argument may infect a capital case at either stage of the proceedings by injecting material which the defense has no opportunity to rebut. The prosecution has no business talking about any matter which is not properly in evidence, yet D.A. Connick and his Assistant District Attorneys repeatedly make such arguments. In Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), the Supreme Court condemned this behavior:
Where the prosecution specifically relies on a [factor] in asking for the death penalty, it is not only the rule of Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)] and Eddings [v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)] that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death on the basis of information which he had no opportunity to deny or explain.

Id. at 5 n.1 (emphasis supplied) (quoting Gardner v. Florida, 430 U.S. at 362); accord Skipper v. South Carolina, 476 U.S. at 10 (Rehnquist & White, JJ., and Burger, C.J., concurring); see also State v. Taylor, 514 So. 2d 755, 757 (La. App. 2d Cir. 1987) ("[m]inimal due process requires the defendant be afforded the opportunity to explain the incident and counter the prejudicial impact of the prosecutor's remarks"). This problem is particularly apparent in a state such as Louisiana which permits the prosecution to close after the defense has had its time. As set forth in this Motion, therefore, Mr. CLIENT specifically asserts his right to introduce evidence in rebuttal of any extra-record argument made by the prosecutor.
5. The attorneys in this District Attorney's Office also seem to adopt a "right to reply" policy--i.e., allowing the defense to make an argument which might be considered improper without objection, and then "responding" to it in the state's closing. In United States v. Young, 470 U.S. 1, 12-13, 105 S. Ct. 1038, 1045-46, 84 L. Ed. 2d 1, 10-11 (1985), the Supreme Court rejected the notion of "invited responses," holding that "[r]eviewing courts should not be put in the position of weighing which of two inappropriate responses was the lesser." The Court therefore admonished trial courts to require prompt objections by the prosecutor and admonitions to the jurors. Again, Mr. CLIENT places the Office of the District Attorney on notice that an objection, not a license to violate his rights, is the correct response to an allegedly "errant advocate." Id.
6. Where an error is intentionally committed (either by this kind of "right to reply" policy, or where the prosecutor has been forewarned that it will be an error) there must also be a variation on the application of the so-called "curative instruction," which allegedly erases the effect of a conceded error. On one level, where an error is made, "curative" instructions more frequently wave the red flag at the bull than "cure" the error. No bell can be unrung. The legal fiction of the "curative" instruction is basically a creation of Alice in Wonderland, where jurors are asked to "put out of their minds" that which indubitably is securely in their minds:
The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction. . . .

Bruton v. United States, 391 U.S. 123, 129, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (quoting Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Jackson, J., concurring)). On another level, since review will be much stricter in a capital case, what may have been "harmless" or "cured" error in a non-capital case will very likely be reversible error in this case. Finally, if an argument is improper, even if it does not quite rise to the level of reversible error in a non-capital case, the prosecution is not permitted to make "not-quite-reversible" arguments, which concededly are erroneous.
7. For this reason, what might not otherwise have been constitutional error will result in reversal where the prosecutor is specifically warned not to make a potential error. With intentional or reckless conduct such as this, the appellate court should properly ask whether the error "might have affected the outcome of the trial." United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976); see also, Chaney v. Brown, 730 F.2d 1334, 1339-40 (10th Cir. 1984).
8. Mr. CLIENT would also take this opportunity to note that very different rules apply to the public prosecutor, as opposed to the defense bar. The National District Attorneys Association has defined the role of a public prosecutor in our system of justice as follows:
Each decision [the prosecutor] makes has tremendous impact on the lives of individuals involved, if not on the entire community.

* * *
Prosecutors must strive diligently to raise the ethical, technical, and professional standards of all prosecutors throughout the nation. A single unprofessional, corrupt, or unscrupulous prosecutor can undo the fine work being done by the many thousands of dedicated prosecutors throughout the country. The modern prosecutor cannot simply be the defender of the status quo. He cannot be content to simply perpetuate himself in office by withdrawing from the front line battle and practicing old routines. He must be a respected voice in the community with unquestioned integrity. From that operating base he must become a respected voice in the legislative body of his jurisdiction. The prosecutor must truly represent "the people" and conduct himself in a way to make that obvious when he rises to state his views in legislative halls.

Healy & Manak, eds., THE PROSECUTOR'S DESKBOOK, 3-4 (N.D.A.A.).
9. As a result of this role, public prosecutors owe a higher duty to the justice system. The duties of the prosecuting attorney were well-stated in the classic opinion of Justice Sutherland fifty-five years ago. The interest of the prosecutor, he wrote:
is not that he shall win a case, but that justice be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). The ABA Standards on the Prosecution Function state that "the duty of the prosecutor is to seek justice, not merely to convict." Standard 3-1.1(a); see also State v. Locklear, 241 S.E. 2d 65, 69 (N.C. 1978) ("[p]rosecuting attorneys owe honesty and fervor to the State and fairness to the defendant" (emphasis supplied)).
10. The public prosecutor, who is endowed with immense authority, has a concomitant obligation as a public official to seek to improve the justice system, and foster the public's faith in the impartiality of justice. This has been emphasized repeatedly. See, e.g., American Bar Association, Code of Professional Responsibility, EC 7-13 (1975) (hereinafter cited as "ABA Code of Professional Responsibility); American Bar Association, Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function, Sections 1.1(c), 1.4 (1971); National District Attorneys Association, National Prosecution Standards, Section 25.1 (1st Ed. 1977); see also Gershman, The Burger Court and Prosecutorial Misconduct, 21 Crim. L. Bull. 217 (1985); Adlerson, Ethics, Federal Prosecutors, and Federal Courts: Some Recent Problems, 6 Hofstra L. Rev. 755, 755 n.3 (1978); Auler, Actions Against Prosecutors who Suppress or Falsify Evidence, 47 Tex. L. Rev. 642, 642 (1969); Steele, Unethical Prosecutors and Inadequate Discipline, 38 S. W. L. Rev. 965, 988 (1984). As the National District Attorneys Association admonishes its members:
The prosecutor must place the rights of society in a paramount position . . . in the approach to the larger issues of improving the law and making the law conform to the needs of society.

National Prosecution Standards at Section 1.3 (D).
11. It goes without saying that an "improved" legal system is one where the citizenry feels that the prosecution is dealing with a case fairly and without favor:
Nothing will detract more from the proper administration of the law than for the people to be impressed that the courts or prosecuting officers are unfair in their treatment of those charged with the law's violation.

State v. Cox, 246 La. 748, 167 So. 2d 352, 358 n. 6 (1964) (quoting State v. Nicholson, 7 S.W. 2d 375 (Mo. App. 1928)).
12. The same rules do not bind the defense. While the prosecution may constitutionally be precluded from giving a closing argument altogether, "it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong a case for the prosecution may appear to the presiding judge." Herring v. New York, 422 U.S. 853, 858, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). In a capital case, defense counsel
may draw upon literature, history, science . . . and philosophy for material for his argument. He may navigate all rivers of modern literature or sail the seas of ancient learning; he may explore all the shores of thought and experience; he may, if he will, take the wings of the morning and fly not only to the uttermost parts of the sea but to the uttermost limits of space in search of illustrations, similes, and metaphors to adorn his argument.

Johnson v. State, 416 So. 2d 383, 391 (Miss. 1982) (quoting Gray v. State, 351 So. 2d 1342, 1346-47 (Miss. 1977)). Simply put, the defense may do many things in a capital trial which are forbidden to the prosecution, for the Eighth Amendment "create[s] an asymmetry weighted on the side of mercy." Stanley v. Zant, 697 F.2d 955, 960 (11th Cir. 1983).
13. Having stated in general terms what the prosecution's closing argument may not be, we now turn to the general principles that govern the manner in which a closing argument should be made by the prosecution. The law "provides that arguments shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case, and further that argument shall not appeal to prejudice." State v. Berry, 391 So. 2d 406, 415 (La. 1980) (citing La. C. Cr. Pro. art. 774); see also State v. Smith, 554 So. 2d 676 (La. 1989).
14. At the penalty phase these rules must be even more rigorously followed, since the Supreme Court "must look to whether the argument introduced passion, prejudice or any other arbitrary factor into the proceeding which contributed to the jury's recommendation of the death penalty." State v. Byrne, 483 So. 2d 564, 574 (La. 1986). These principles dictate some more specific rules, discussed below:
B. EXAMPLES OF UNFAIR ARGUMENTS
15. In order to preserve the fairness of his trial and potential sentencing proceeding, Mr. CLIENT sets forth certain of the illegitimate arguments which this District Attorney may not use in this case. Mr. CLIENT notes that this list is merely representative of illegitimate argument, and is by no means exhaustive. Furthermore, Mr. CLIENT notes that an in limine ruling is necessary on these matters because a `curative' instruction at trial will generally exacerbate, rather than cure, the prejudice caused by improper argument. See, e.g., United States v. Miranda, 593 F.2d 590, 596 n.7 (5th Cir. 1979).
A. Arguing Facts not in Evidence.
16. It is improper for a prosecutor to argue facts not in evidence or to misstate the facts. Donnelly v. DeChristoforo, 416 U.S. 637 (1974); United States v. Warren, 550 F.2d 219, 228- 229 (5th Cir. 1977). The American Bar Association's Standards provide:

It is unprofessional conduct for the prosecutor intentionally to refer to or argue on the basis of facts outside the record . . . unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.

ABA Standards Relating to the Prosecution Function, Section 3-5.9. Indeed, the federal courts have consistently held that arguments based on alleged "evidence" which was never introduced violate fundamental fairness. For example, in Hall v. United States, 419 F.2d 582 (5th Cir. 1969), the Fifth Circuit roundly condemned the prosecutor's effort, "with a minimum of words, to impress on the jury that the government's vast investigative network . . . knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty." Id. at 583-84 (emphasis supplied); see also, e.g., United States v. Whitmore, 480 F.2d 1154, 1158 (D.C.Cir. 1973); United States v. Gonzalez, 488 F.2d 833 (2d Cir. 1973); United States v. Murrah, 888 F.2d 24, 27-28 (5th Cir. 1989); United States v. Simtob, 901 F.2d 799, 805-06 (9th Cir. 1990); United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir. 1990); United States v. Obergon, 893 F.2d 1307, 1310-11 (11th Cir. 1990); United States v. Doe, 860 F.2d 488, 492-94 (1st Cir. 1988); United States v. Pinto, 850 F.2d 927, 932-33 (2d Cir. 1988). Other state courts have reached the same conclusion. See, e.g., Tomlin v. State, 591 So. 2d 550, 558 (Ala.Cr.App. 1991) (capital murder conviction and death sentence overturned where prosecutor's questions to witness "suggested facts not supported by the evidence").
17. In Louisiana, the Code expressly forbids such arguments which are not based on facts adduced at trial:
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case.

La. Code Cr. Pro. Art. 774; see also State v. Smith, 554 So. 2dd 676, 680 (La. 1989) (capital murder conviction and death sentence set aside where prosecutor argued "facts outside the record").
18. This is particularly important in a capital case, since the Eighth Amendment comes into play in addition to "`the elemental due process requirement that a defendant not be sentenced to death "on the basis of information which he [or she] had no opportunity to deny or explain."'" Skipper v. South Carolina, 476 U.S. 1, 7 n.1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986) (quoting Gardner v. Florida, 430 U.S. at 363). Therefore, the Constitution absolutely prohibits the prosecution from arguing `facts' which have not been subject to proof.
19. In the Cage case, we see an example of a prosecutor straying far away from the evidence, discussing the reason why there was a mistrial in an earlier trial of a case:
The second time we tried the case it was a mistrial. But he didn't tell you why. The reason why it was a mistrial is because we didn't know it, but one of the jurors was Arthur Johnson's cousin.

(State v. Cage Penalty Phase at 567)1
20. This same argument was reprised, with even more prejudicial, extra-record "facts" slipped in:
But, the third time he was tried again for robbing Ernest Brown. Another thing he didn't tell you was that the jury deliberated for ten minutes.

BY MR. MERRIT:

Your Honor, that's far beyond the evidence.

BY THE COURT:

As to the amount of time the jury took in its deliberation, I would sustain that.

(State v. Cage Penalty Phase at 568)
B. Arguing prosecutorial expertise.
21. Another closely related type of argument which courts have expressly condemned concerns references by prosecutors to their expertise, such as statements regarding their "careful practices" in seeking death and the infrequency with which they have sought it. Brooks v. Kemp, 762 F.2d at 1410; Tucker (Richard) v. Kemp, 762 F.2d at 1505; State v. Knighton, 436 So. 2d 1141, 1154 (La. 1983) (not proper to state that the prosecution does not seek the death penalty in every case).
22. A variation on this theme is the argument that because the Grand Jury saw fit to charge a capital crime, the jury's verdict of death has already been ratified by their decision. These argument are closely analogous to the argument condemned in Caldwell v. Mississippi (discussed below), and cannot be permitted.
23. One of the variations on the "I'm the Prosecutor and I know it all so you can Trust Me" arguments is to denigrate the defense. The prosecutors in Orleans Parish have found some novel and improper ways of doing this:
Folks, I'm going to be very brief, and excuse me if I'm not mesmerized, because I've heard it all before from Mr. Williams and from Mr. Bertel.

(State v. DeBoue Penalty Phase at 26) These type of arguments should be prohibited in Mr. CLIENT's trial.
C. Personal Opinions--Generally.
24. A related area of habitual misconduct is prohibited by the Code of Professional Responsibility, Canon 7, DR 7-106 (C) (4) which states:
In appearing in his professional capacity before a tribunal, a lawyer shall not: assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant or as to the guilt or innocence of an accused. . .

Such expressions may deny the accused a fair trial. See, e.g., United States v. Young, 84 L. Ed. 2d at 8; Berger v. United States, 295 U.S. at 85-88; Brooks v. Kemp, 762 F.2d at 1408; United States v. Rodriguez, 585 F.2d 1234 (5th Cir. 1978); United States v. Morris, supra; United States v. Garza, supra; United States v. Diharce-Estrada, 526 F.2d 637 (5th Cir. 1976); United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972).
25. Of course, the most obvious example of this is when prosecutors improperly "seek to emphasize their personal belief about a defendant's guilt." State v. Byrne, 483 So. 2d 564, 573 (La. 1986)
26. However, the same principle applies to any assertion that the prosecutor believes something to be true. The result of this strategy is to convey "the unspoken message that the prosecutor knows what the truth is and is assuring its revelation." Stringer v. State, 500 So. 2d 928, 936 (Miss. 1986); Griffin v. State, 557 So. 2d 542, 546 (Miss. 1990). Without criticizing the many officers who do meet this high tradition, it is not proper to propose a rule of law enforcement infallibility known to be false by anyone who has ever tried a criminal case. See, e.g., United States v. Garza, 608 F.2d 659, 664 (5th Cir. 1979) (integrity of officers unquestioned given the fact that they were "associating daily with dirty, nasty people"); United States v. Brown, 451 F.2d 1231, 1235-36 (5th Cir. 1971); Hall v. United States, 419 F.2d 582, 585-87 (5th Cir. 1969); Gradsky v. United States, 373 F.2d 706, 710 (5th Cir. 1967).
27. What the prosecutor believes of the evidence is thus simply not relevant, and yet such arguments are habitually made by the prosecution in Orleans Parish:
I think the evidence -- the circumstances have shown you he wasn't intoxicated at all. I don't buy that for a New York second. He acted with cold calculation.

(State v. Cage Guilt Phase at 437)
28. To be quite honest, what the prosecutor thinks, or what "irks" him, simply has nothing to do with the case at hand, yet Orleans Parish prosecutors have argued, for example:
The Defense Attorney says, "I'm not asking you to excuse Tommy Cage, but -- "but this is the part that really irks me when he says, "This is not the case for capital punishment."

(State v. Cage Penalty Phase at 569) These arguments--and all those like them--are improper and should be strictly prohibited.
D. Personal Opinion: Vouching for Witnesses.
29. Vouching for witnesses brings to bear the same principles as when a prosecutor expresses personal opinions. For example, in the first trial of Mr. CLIENT's case, the prosecutor first assured the jury that Hall and Holley were telling the truth in his opening statement, saying that all deals would be off if they were not. (Tr. II/287) Hall was trained to parrot the same thing--that the deal would be off unless the prosecution was convinced that he was not lying. (Tr. III/463) In closing argument the prosecutor stressed that truthfulness was the condition of Hall and Holley's deals (Tr. IV/673, 681, 683), and that he thought they were telling the truth. (Tr. IV/657, 674) Apparently, the prosecutor believed these two criminals for the simple reason that "they told . . . how bad they were." (Tr. IV/656)
30. This vouching for witnesses is highly improper, because the prosecution implies that the state knows that Hall and Holley are credible and that Mr. CLIENT is guilty. For example, In Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969), the Fifth Circuit roundly condemned the prosecutor's effort, "with a minimum of words, to impress on the jury that the government's vast investigative network . . . knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty." Id. at 583-84 (emphasis supplied); see also United States v. Binker, 795 F.2d 1218 (5th Cir. 1986) (conviction reversed based on prosecutor's vouching for witness); United States v. Leslie, 759 F.2d 366 (5th Cir. 1985) (disapproving vouching for witnesses).
E. Expressing Personal Opinions--Deterrence.
31. Frequently, prosecutors urge the jury to impose a death sentence on the prosecutor's unsupported assertion that the death penalty is a deterrent to murder. Should the prosecutor wish to argue that capital punishment is a deterrent Mr. CLIENT requests funds for expert assistance, and the right to present evidence that capital punishment is not a deterrent. See, e.g., Decker & Kohfield, Capital Punishment and Executions in the Lone Star State: A Deterrence Study, 3 Crim. Just. Research Bull. No. 12, at 1-6 (1988) ("there is no evidence of a deterrent effect of executions in the state of Texas"); Passell & Taylor, The Deterrence Controversy: A Reconsideration of the Time Series Evidence (reproduced in Bedau & Pierce, Capital Punishment in the United States (1976)); Georgia State Dept. of Offender Rehabilitation, Capital Punishment in Georgia: An Empirical Study 1943-65, at 451 (1972) ("the death penalty is not effective as a deterrent"); Zeisel, The Deterrent Effect of the Death Penalty: Facts v. Faiths, 1976 Supreme Court Review 317 (1976); see also The Harris Survey: Sizable Majorities Against Mandatory Death Penalty (Feb. 10, 1983) (63% of public, and therefore potential jurors, believe in deterrence, and therefore would be influenced by this improper argument).
F. Accusing the Defendant or Defense Witnesses of Lying.
32. Categorical and conclusory opinions by the prosecutor regarding the "lies" by the defendant make the prosecutor an unsworn witness and invade the province of the jury. See, e.g., Stewart v. State, 263 So. 2d 754, 758-59 (Miss. 1972); Harris v. United States, 402 F.2d 656 (D.C. Cir. 1968); see also Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492 (1971); State v. Williams, 297 Minn. 76, 210 N.W.2d 21 (1973); United States v. Drummond, 481 F.2d 62, 63 n.2 (2d Cir. 1973).
33. As the Mississippi Supreme Court recently held:
There is no justification for such an argument to the jury. While an attorney has a right to argue his case a prosecutor should not indulge in personal abuse or vilification of the defendant.

Bridgeforth v. State, 498 So. 2d 796, 801 (Miss. 1986).
34. In spite of the admonition in such cases as Bridgeforth, prosecutors continue to make other arguments consisting of slights against the accused. When a prosecutor expresses his or her personal opinion as to the worthlessness of the accused in a capital trial the error is particularly pernicious, since any saving virtue which may be apparent to the jury should be considered in mitigation of sentence. Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). Indeed, even in a non-capital trial, this sort of argument has been roundly condemned:
A good citizen? Yeah, He was a good citizen. Charles [Manson] was a good citizen. . . . So was Patty Hearst, so was Al Capone, before they committed their first crime.

Meggett v. State, 599 P. 2d 1110, 1114 (Okla. Crim. App. 1979).
35. Indeed, the Louisiana Courts have gone further than this, and ordered that prosecutors not make other disparaging remarks about the character of the accused. In State v. Byrne, 483 So. 2d 564 (La. 1986), the Court found that "from the evidence at trial, the inference of [the defendant's alleged] 'lifelong habit of' deceit is somewhat exaggerated." Id. at 572.
G. Attacking Defense Counsel.
36. It is highly improper for the prosecutor to level personal attacks on defense counsel. See State v. Nelson, 459 So. 2d 510, 517 (La. 1984) (improper to attack defense counsel by saying that his or her "function in life, or with this defendant, is to make inside look out, black look white, up seem down--confuse and befuddle the issue, whatever you want to do"); State v. Knighton, 436 So. 2d 1141, 1153 (La. 1983) (disparaging defense counsel "is not proper argument").
37. Unfortunately, this seems to be a favorite tactic in the Office of the Orleans Parish District Attorney. There have been many examples of prosecutors from the office insulting defense counsel, and making personal attacks upon counsel in closing argument during a capital case. Consider, for example, an instance from the Brown case:
Ladies and gentlemen, I'm going to be brief, but each and every one of you should have sat here and listened to that and been insulted because that's the most ridiculous thing we've heard today from 9:00 this morning, and you've got to scratch your head and you've got to say, "Is that the same Mr. Merritt who was here all day long? Did he sit through this?"

(State v. Brown Guilt Phase, at 256)
38. It is simply not appropriate to accuse one's legal adversary of talking "nonsense" when they are arguing about the weighty burden of imposing a death sentence. For example, in the DeBoue case, this prosecution office argued:
Eleven years old, and he knew he was going to die. Think about that. Think about the terror in his mind. Think about what he went through, and weigh that against all this nonsense you're going to hear from Mr. Bertel and all this nonsense you're going to hear from Mr. Williams about how terrible the death penalty is.

(State v. DeBoue Penalty Phase at 31)
39. A variation on the theme is to improperly suggest that the defense attorneys are going around doing illegal things and fabricating a defense:
Mr. Lawrence has been an attorney for a very long, and he's not stupid. No way. They had to admit they were in the house. But where does that place them? That places them in the posture of "they're got us in the house, we know we can't beat that, we better come up with some type of a story of how we were in the house, and how we left." That conveniently fabricates story to explain away that fingerprint.

(State v. DeBoue Guilt Phase at 67-68)
40. Perhaps it is also an insult to accuse a defense lawyer of being a prosecutor in a former role--certainly it is beyond the record and an improper argument:
He starts off by telling you that his career is to defend poor and defenseless people. He didn't tell you that he used to be a DA.

(State v. Cage Penalty Phase at 561)
41. This abuse of defense lawyers seems to be a major part of the agenda in closing arguments made by this prosecutor's office:
You will notice Mr. Bertel's voice became very hushed when he spoke to all of his witnesses: Ms. Thomas, Mrs. Thompson, to Father -- very, very hushed. Almost reverential tone.

BY MR. MERRIT:

Your Honor, what is this? Is he a play director or something.

BY MR. BERTEL:

I object to the personal reference.

BY THE COURT:

I will sustain the objection.

CLOSING ARGUMENT BY MR. McMAHON:

The focus was to take your attention away from reality.

BY MR. MERRIT:

We are right back where he came from.

Admonish him, Your Honor. I don't think he should do that.

BY THE COURT:

I will sustain that objection as to closing argument.

(State v. Cage Penalty Phase at 534) This kind of thing goes on and on, and the prosecution seems to take no notice of judicial admonitions not to attack defense counsel:
The first words -- almost the first words you heard out of that attorney's mouth during that phase --

BY MR. MERRIT:

Your Honor, he's back right where we started from. I know that's wrong. No matter what he's going to say. . . .

(State v. Cage Penalty Phase at 539) These kind of improper assaults on the defense team must be absolutely barred.
H. Arguing Matters Which Are Not in Issue.
42. The Code of Professional Responsibility, Canon 7, DR 7-106(c)(1) states:
In appearing in his professional capacity before a tribunal, a lawyer shall not: state or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.

See also United States v. Williams, 523 F.2d 1203 (5th Cir. 1975); United States v. Countryman, 758 F.2d 574 (11th Cir. 1985).
43. This principle condemns, for example, any reference by the prosecutor to defense counsel's views on a particular matter (such as the death penalty), or any exposition by the prosecutor regarding the history of capital punishment, or any discussion of the prosecutor's or the jurors' religious beliefs.
I. Asserting a Duty to Convict.
44. Another species of argument frequently employed by this prosecutor is the `duty to convict' argument, which violates the jury's nullification prerogative. The "nullification" power of the jury -- also known as the jury's prerogative of mercy -- goes to the very heart of the system of trial by jury. Stemming from the time of the Revolution, the jury's freedom from official pressures to convict was an inherent part of the judicial process.
45. This historical attribute of the jury's power has been recognized more recently in the decisions which reject any notion that the jury has a "duty to convict" -- arising initially from the prosecution of conscientious objectors to the Vietnam War. See, United States v. Spock, 416 F.2d 165, 182 (1st Cir. 1969); see also United States v. Johnson, 718 F.2d 1317, 1325 (5th Cir. 1983).
46. Indeed, in United States v. Young, the Supreme Court held that a statement by the prosecutor that the jury should do its "job" has "no place in the administration of justice." Id., 470 U.S. at 8-9; accord United States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir. 1986) (no difference between "urging a jury to do its job and urging a jury to do its duty" because "such an appeal is designed to stir passion"); United States v. Phillips, 664 F.2d 971, 1029-30 n.90 (5th Cir. 1981), cert. denied sub nom. Meinster v. United States, 457 U.S. 1136 (1982) (prosecutor's statement "[i]f you do not [convict], then I would submit to you that your fellow-citizens have again been victimized" deemed improper (emphasis added)); see also Cortez v. State, 683 S.W. 2d 419 (Tex. Cr. App. 1984); Pennington v. State, 345 S.W. 2d 527 (Tex. Cr. App. 1961); Stasel v. Commonwealth, 278 S.W. 2d 727 (Ky. 1955).
J. Asserting a Duty to Impose Death.
47. A prosecutor's argument that jurors were soldiers in a war on crime, and should kill the defendant because he was part of the "criminal element," was found to be inconsistent with the Eighth Amendment's requirement of individualized, discretionary sentencing in Brooks v. Kemp, 762 F.2d at 1412-13.
48. Furthermore, in Tucker (Richard) v. Kemp, the court held the prosecutor
went beyond appropriate limits . . . by portraying the jury as the last line of defense against Tucker. Arguing that any future victim would be on the jury's conscience, and that jurors were the only people who could stop Tucker from killing, derogated the role that others would have in seeing to it that Tucker, if given a life sentence, would be effectively incapacitated.

Id., 762 F.2d at 1508 (emphasis original).
K. The Plebiscite on Crime Argument.
49. Related to the argument that says that the jury has a duty to convict and execute is the argument that the people expect a certain sentence. "Prosecutors should not turn closing argument into a plebiscite on crime by making overt references to community sentiment. The prosecutor's comment that 'the community is waiting for you to tell them what you're going to do' was therefore improper." State v. DeBoue, 552 So. 2d 355, 364 (La. 1989); State v. Bates, 495 So. 2d 1262, 1273 (La. 1986) ("closing argument may not be converted into a plebiscite on crime") (citing cases); State v. Kyles, 513 So. 2d 265, 275 (La. 1987) (condemning argument made by New Orleans prosecutor on crime plebiscite, "I don't need to sit here and tell you the state of affairs in this parish and I'm not going to" and argument requesting jurors "to return a capital verdict against this man and let that be a message--").
50. Although the jury's role is not to respond to what the community wants, this kind of argument has been made by members of this prosecution office:
However, this community is waiting for you to tell them what you're going to do --

BY MR. LAWRENCE:

Objection, your Honor. The community does not take part in this.

BY THE COURT:

I would sustain that. I would sustain that.

BY MR. DUBELIER:

You have an opportunity to speak out and say what you're going to do to two men who have killed these children.

(State v. DeBoue Penalty Phase at 32)
L. Commenting -- Expressly or Impliedly -- on the Defendant's Failure to Testify.

51. The defendant has a Fifth Amendment right to remain silent. It is improper for the prosecution to use the exercise of that right against the defendant. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); United States v. Griggs, 735 F.2d 1318 (11th Cir. 1984); Williams v. State, 445 So. 2d 798 (Miss. 1984); Shirley v. State, 245 Ga. 616, 266 S.E. 2d 218 (1980); Marlow v. State, 152 Ga. App. 218, 262 S.E. 2d 460 (1979). Comments by the prosecutor implicating the defendant's right in violation of state law and the Fifth and Fourteenth Amendments to the United States Constitution must be prohibited.
52. Indeed, this rule is reinforced in Louisiana with a code section precisely on point:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

* * *

(3) The failure of the defendant to testify in his own defense. . . .

La. Code Cr. Pro. art. 770; see also State v. Johnson, 541 So. 2d 818, 822 (La. 1989) (violation of right to silence to argue that "[n]obody came in here and contradicted anything that was attributed to him, not one single person. Nobody took the stand. * * * La. C. Cr. P. art. 770(3) provides that the trial court 'shall' declare a mistrial when the prosecutor 'refers directly or indirectly to . . . [t]he failure of the defendant to testify in his own defense'" (emphasis in original)).
53. The Fifth Amendment--and our own broader statutory provision--means what they say. There can be no penalty exacted upon the assertion of the right to remain silent:
The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may "be compelled in any criminal case to be a witness against himself." To protect this right Congress has declared that the failure of a defendant to testify "shall not create any presumption against him." Ordinarily, the effectuation of this protection is a relatively simple matter -- if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted.

United States v. Curtiss, 330 F.2d 278, 281 (2d Cir. 1964) (emphasis supplied) (quoting Stewart v. United States, 366 U.S. 1, 2, 81 S. Ct. 941, 6 L. Ed. 2d 84 (1961)).
54. Such a comment was made in this case. In closing argument, in classic violation of the Fifth Amendment, the prosecutor made the following argument:
[There has been] [n]ot one piece of evidence to refute what they [the government's snitches] have said.

(Tr. IV/658) Judge Shea overruled Mr. CLIENT's objection. (Id.; see also IV/723)
55. Another closely related issue also came up. Since the evidence presented by the prosecution was so entirely flimsy, in argument the prosecutors chose to stress the evidence that had not been adduced by the defense. (Tr. IV/616) Over objection, the first prosecutor argued what evidence the defense could have presented:
I submit to you that if the defense could have brought in destructive evidence more than you know that this man was involved in some kind of--

[DEFENSE COUNSEL]: I'm going to object to that, Your Honor.

(Tr. IV/617) Again, the objection was overruled. (Tr. IV/618)
56. On his Motion for a New Trial, Mr. CLIENT reminded the trial court of the prejudicial impact of the comments on his right to remain silent:
During the closing argument the attorney for the State made several references to the fact that in their opinion the testimony was "uncontradicted" and made other comments calculated to point out and underline that the Defendant had not testified nor had the Defendant brought any evidence or testimony in his behalf.

(P.Tr. 200; see also Tr. 723)
57. There can be no doubt that, had the Court not reversed on other grounds, these arguments would have caused a reversal. In State v. Jackson, 454 So. 2d 116 (La. 1984), this Court narrowed the scope of permissible prosecutorial comment by prohibiting statements to the effect that the State's case is unrefuted when the Defendant is the only witness in a position to provide rebuttal. Id. at 118 (citing State v. Perkins, 374 So. 2d 1234 (La. 1979)). Where the Defendant is the only source of rebuttal testimony, even an indirect reference to his failure to testify requires a mistrial. State v. Johnson, 541 So. 2d 818 (La. 1989).
58. In Johnson, the prosecutor's statements focused on the absence of testimony in rebuttal to the testimony of those State witnesses who said that the Defendant told them he committed the crimes charged. It was not asserted that others were present during these conversations. Id. at 823. The Louisiana Supreme Court held that where the Defendant is the only witness who could have rebutted the State's evidence, "a reference to the testimony as uncontroverted focuses the jury's attention on the Defendant's failure to testify" and mandates a mistrial. Id. at 822-24 (citing State v. Perkins, 374 So. 2d 1234, 1237 (La. 1979) see also State v. Fullilove, 389 So. 2d 1282 (La. 1980); State v. Harvill, 403 So. 2d 706 (La. 1981)); State v. Smith, 535 So. 2d 786, 789 (La. App. 2d Cir. 1988) ("he signed it and there is no one who has denied that at all").
59. There have been examples of prosecutors from the Orleans Parish District Attorney's Office making more subtle comments on the failure of the defendant to take the stand, or to present evidence, in closing argument during a capital case:
Now, when you look at the evidence there's no other verdict. Any other verdict would be ridiculous because there is no other evidence.

(State v. Brown Guilt Phase, at 262) To argue that there is no other evidence is to argue that there was no testimony from the accused.
60. Along the same lines, it is also improper to argue that the accused did not "come clean" with the police. See, e.g., Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); Alston v. Garrison, 720 F.2d 812, 814-15 (4th Cir. 1983); United States v. McDonald, 620 F.2d 559, 561-64 (5th Cir. 1980); United States v. Shavers, 615 F.2d 266, 268-70 (5th Cir. 1980).
61. Thus a similar violation occurs when the prosecution mentions the accused's post-arrest silence. See State v. Mattheson, 407 So. 2d 1150, 1161 (La. 1981) ("The use for impeachment purposes of defendant's silence, at the time of his arrest after receiving his Miranda warnings, violates his due process rights").
62. It is equally improper, at the penalty phase of a capital trial, for the prosecution to state that the accused did not exhibit remorse. As the United States Supreme Court held in Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981):
We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees.

Id. at 462-63.
63. In Williams v. State, 445 So. 2d 798, 813-14 (Miss. 1984), the Mississippi Supreme Court reversed in part for comment on defendant's failure to offer sworn testimony at the penalty phase. See also, e.g., People v. Ramirez, 98 Ill. 2d 439, 75 Ill. Dec. 241, 457 N.E. 2d 31, 35-37 (1983) (the defendant "has sat silent before you . . . and offered no explanation for the murder"); People v. Szabo, 94 Ill. 2d 327, 68 Ill. Dec. 935, 447 N.E. 2d 193, 209 (1983); State v. Arther, 350 S.E. 2d 187, 191 (S.C. 1986); State v. Brown, 347 S.E. 2d 882, 887 (S.C. 1986); Bushnell v. State, 637 P.2d 529, 531 (Nev. 1981) ("Imposition of a harsher sentence based upon the defendant's exercise of his constitutional rights is an abuse of discretion and the sentence cannot stand"); State v. Hawkins, 357 S.E.2d 10, 13 (S.C. 1987) ("[a]rguments of this nature are especially egregious in the context of death penalty [sentencing] proceedings because they violate the Eighth as well as the Fifth Amendments") (emphasis supplied); State v. Sloan, 298 S.E.2d 92, 95 (S.C. 1982) ("What have you been told up until you found him guilty?"); State v. Cockerham, 365 S.E.2d 22, 23 (S.C. 1988); State v. Brown, 347 S.E.2d 882, 887 (S.C. 1986). These and all other similar arguments are absolutely prohibited.
M. Denigrating other Legal Rights.
64. Related arguments include those which disparage some, or all, of the accused's constitutional rights. See, e.g., Hall v. United States, 419 F.2d 582, 587 (5th Cir. 1969); United States ex rel. Clark v. Fike, 538 F.2d 750 (7th Cir. 1976).
65. Indeed, the prosecutor may not comment on the assertion of any other legal right. For example, as the Court held in State v. Wille, 559 So. 2d 1321 (La. 1990), "[i]f the prosecutor knows a witness will claim a valid privilege not to testify, the prosecutor should not call the witness for the purpose of impressing upon the jury the fact of the claim of privilege." Id. at 1337.
66. A favorite way to denigrate constitutional rights in this District Attorney's Office is apparently to harp on about how the victim in the case did not enjoy the same rights:
He's in court. He had the protection of the United States Constitution, the Louisiana Constitution given to every criminal defendant. What can he give Arthur Johnson, Jr.? He gave him a cord all right.

(State v. Cage Guilt Phase at 439) Of course, two wrongs do not make a right, and the fact that one person was not given constitutional rights does not mean that everyone should be denied them.
67. The same kind of erroneous argument was made in Cage at the penalty phase:
You see, they have been ranting and raving about his rights and constantly moving from one mistrial to another, and they don't want me to talk about Arthur Johnson's rights.

BY MR. MERRIT:

Your Honor, again, he's absolutely right, and I recite Article 774 as the reason for it, of the Code of Criminal Procedure for the Court to review.

(State v. Cage Penalty Phase at 575) These arguments are improper and should be prohibited.
N. Arguing Religion to the Jury.
68. One theme which arises and re-arises in the arguments of this District Attorney and of his associates is religion. They apparently believe that the jury may rely on the Bible as a basis for imposing the death penalty.
69. To the contrary, "[i]t is well settled that religion may not play a role in the sentencing process," particularly where an accused faces the death penalty. Jones v. Kemp, 706 F. Supp. 1534, 1559 (N.D. Ga. 1989) (death sentence set aside where capital sentencing jury allowed to consider Bible); accord Cunningham v. Zant, 928 F.2d 1006, 1020 (11th Cir. 1991) ("the prosecutor made numerous appeals to religious symbols and beliefs, at one point even drawing an analogy to Judas Iscariot. By these comments . . . the prosecutor improperly appealed to the jury passions and prejudices"); Evans v. Thigpen, 809 F.2d 239 (5th Cir. 1987) (biblical evidence irrelevant at capital sentencing phase); United States v. Giry, 818 F.2d 120 (1st Cir. 1987) (reference to Bible is improper appeal to jurors' private religious beliefs); United States v. Bakker, 925 F.2d 728, 741 (4th Cir. 1991) (vacating sentence where appellate court "left with the apprehension that the imposition of a lengthy prison term here may have reflected" sentencer's "sense of religious propriety"); Grooms v. Commonwealth, 756 S.W.2d 131, 142 (Ky. 1988) ("jurors should not be allowed to take Bibles into the jury room with them"); State v. Harrington, 627 S.W.2d 345 (Tenn. 1981) (new sentencing ordered where jury foreman read biblical passages to jury during deliberations in penalty phase of capital trial); Weaver v. State, 318 So. 2d 768, 769-70 (Ala.Cr.App. 1975) (manslaughter conviction reversed where prosecutor's comments on religion in closing argument "created a prejudicial atmosphere"); State v. Wangberg, 136 N.W.2d 853, 855 (Minn. 1965) (murder conviction reversed where prosecutor's comments in summation "constituted an unwarranted and improper appeal to religious prejudice which requires a new trial").
70. In a recent decision, the Pennsylvania Supreme Court reversed a death sentence based on a biblical reference by the prosecutor during closing argument, that was far briefer than some of the theological lectures that are made by prosecutor in this District Attorney's Office. Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991). The court was sharply critical of such religious comments, and admonished prosecutors "that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action." Id. at 644. The Pennsylvania justices reiterated the fundamental unfairness of such Biblical argument, as expressed by the court in Jones and other similar cases:
. . . this argument by the prosecutor advocates to the jury that an independent source of law exists for the conclusion that the death penalty is the appropriate punishment for Appellant. By arguing that the Bible dogmatically commands that `the murderer shall be put to death,' the prosecutor interjected religious law as an additional factor for the jury's consideration which neither flows from the evidence or any legitimate inference to be drawn therefrom. We believe that such an argument is a deliberate attempt to destroy the objectivity and impartiality of the jury which cannot be cured and which we will not countenance. Our courts are not ecclesiastical courts, and, therefore, there is no reason to refer to religious rules or commandments to support the imposition of the death penalty.

Id. at 644.

71. Likewise, the federal courts have held that the prosecution has no business getting into religion as a basis for the death penalty:
It is well settled that religion may not play a role in the sentencing process. See, e.g., United States v. Giry, 818 F.2d 120 (1st Cir. 1987), cert. denied, 484 U.S. 855, 108 S. Ct. 162, 98 L. Ed. 2d 116 (1987) (reference to Bible is improper appeal to jurors' private religious beliefs); Evans v. Thigpen, 809 F.2d 239 (5th Cir. 1987), reh'g and reh'g en banc denied, 814 F.2d 658 (5th Cir. 1987), cert. denied, 483 U.S. 1033, 107 S. Ct. 3278, 97 L. Ed. 2d 782 (1987) (biblical evidence irrelevant at sentencing phase). In a recent case similar to the instant one, the Tennessee Supreme Court held that a jury foreman's reading of Biblical passages to the jury during deliberations in the penalty phase of a capital case was error that required new sentencing. See Tennessee v. Harrington, 627 S.W.2d 345 (Tenn. 1981), cert. denied, 457 U.S. 1110, 102 S. Ct. 2913, 73 L. Ed. 2d 1403 (1982).

The jury which sentenced the petitioner had a duty to apply the law of the State . . . as given by the trial judge, not its own interpretation of the law or its own interpretation of the Bible, in determining whether the petitioner should live or die. Yet the court permitted the jury to deliberate with the aid of a specific, extra-judicial [biblical] code of conduct -- a code which mandates death for numerous offenses, including filial disobedience and breaking the Sabbath. . . .

Jones v. Kemp, 706 F. Supp. 1534, 1559 (N.D.Ga. 1989) (citing Deut. 21:18-21; Exod. 31:14-15). Thus, while the law explicitly allows the defense to argue that mercy is appropriate, and that the Judeo-Christian ethics underlying this Nation fully support the notion of mercy, the prosecution may not refer the jurors to Biblical passages in support of the death penalty.
72. Indeed, whether based on religion or not, it is improper to urge that the jury should do to the accused what he or she did to the victim--the principle of lex talionis. See State v. Monroe, 397 So. 2d 1258, 1271 (La. 1981) ("To seem to urge a jury to do to the defendant what the defendant has done to the victim . . . is improper").
O. Misleading Arguments--Misstating the Law.
73. Prosecutors should not either mislead jurors as to what the law is, or ask the jurors to ignore the law. State v. Lindsey, 404 So. 2d 466, 483 (La. 1981) (condemning reference to "putting the law books aside").
74. Indeed, at the last trial of this case reversible error took place when the Prosecutor misstated the law of reasonable doubt and the trial judge overruled Defendant's objection. The following excerpts from the transcript are most pertinent:
[ADA] DeGabrielle:

. . . [B]y reasonable doubt that means a doubt for which you can give a good reason for, a doubt that when you go out to deliberate you can say to your fellow jurors, I've got a reasonable doubt about this, and explain it, articulate, and if everybody agrees that that is a reasonable doubt as appose [sic] to an unreasonable doubt then---

Mr. Nichols:

Your Honor, I object at this point of counsel instructing this jury on what reasonable doubt means. That's a problem for the Court, and I don't think he's properly doing it. There's no rule that says everybody's got to agree on a reason for a doubt. As I understand the law, if a juror in his own mind and conscience believes a doubt is reasonable that's enough for him to vote against conviction. And I don't think counsel can sit here and try to make this jury think---

Mr. DeGabrielle:

Your Honor, that's what defense counsel is arguing.

The Court:

Well, wait. Gentlemen, I think I told you all earlier in this hearing that I don't permit arguing either among yourselves or with me.

Your objection is over ruled because that is the state of the jurisprudence in this Court at this time.

(Tr. II/71-72, R. 000113-114)
75. The prosecutor clearly misstated what "reasonable doubt" meant. The prosecutor's statement of the law is erroneous because it requires a juror possessed of a genuine conviction that reasonable doubt exists to vote against that conviction if he or she cannot persuade all the other jurors that the doubt is reasonable. Cf. State v. Nicholson, 315 So. 2d 639, 642 (La. 1975) (holding that trial Court committed reversible error when it "admonished the jurors that if a majority favor conviction, the minority should consider whether their doubts are reasonable, since they make no effective impression upon the minds of . . . fellow jurors"); see also, e.g., Baxter v. State, 331 S.E.2d 561, 568 (Ga. 1985), cert. denied, 106 S.Ct. 269 (1985); United States v. Wooton, 518 F.2d 943, 946-47 (3d Cir. 1975), cert. denied, 423 U.S. (1975); United States v. Ledee, 549 F.2d 990, 992 (5th Cir. 1977), cert. denied, 434 U.S. 902 (1977); United States v. Miller, 758 F.2d 570, 573 (11th Cir. 1985); State v. Peele, 282 S.E.2d 578, 580 (N.C.App 1981).
76. Among the other misleading arguments that have been made by prosecutors from this office is one that appeared in the DeBoue case:
Article 14:30 says that "first degree murder is the killing of a human being where the offenders," in this case, "had specific intent to kill or inflict great bodily--

BY THE COURT: Just a moment. The indictment only charges specific intent to kill, not to inflict great bodily harm.

(State v. DeBoue Guilt Phase at 1) It should not take this Court to interject a correction--no misleading argument as to the law should be made in the first place.
P. Misstating the Law as to the Jury Role in Sentencing.
77. It is particularly improper for the prosecution to mislead the jury as to its function in sentencing, since the law is in such a delicate balance.
(i) Arguments against sympathy & mercy.
78. For example, a prosecutor's selective use of Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), to argue to a jury that the United States Supreme Court had found that capital punishment "is essential in an ordered society" has been condemned, as has selective quotation from an ancient case, Eberhart v. State, 47 Ga. 598 (1873), for the proposition that mercy was not an appropriate consideration in deciding punishment. Wilson v. Kemp, 777 F.2d 621, 625 (11th Cir. 1985). Because the prosecutor misstated the Supreme Court's holding in Gregg and because the Eberhardt quote was inconsistent with the present state of the law in Georgia, the Court found that the prosecutor's argument rendered the penalty phase of Wilson's trial fundamentally unfair. The misleading nature of the Eberhardt quotation also resulted in death sentences being found unconstitutional in Drake v. Kemp, 762 F.2d at 1458-60, and Potts v. Zant, 734 F.2d 526, 535-536 (11th Cir. 1984), rehearing denied, 764 F.2d 1369 (11th Cir. 1985).
79. One variation on this theme is the idea that sympathy should not be shown to the defendant. For example, in Brown the prosecutor erroneously suggested that sympathy for the accused was not relevant:
Once again, you got, you sat here and listened to an argument from the defense attorney and you all ought to be insulted because it has nothing to do with this case. He's playing sympathy game with you when there's no reason for it, and it doesn't belong in this courtroom because it has nothing to do with the law.

(State v. Brown Penalty Phase, at 349)
80. Mr. CLIENT objects to the prosecution expressing the notion that "mere" mercy should not be applied in this case, under any guise. Cf. Spivey v. Zant, 661 F.2d 464, 471 (5th Cir. 1981) (constitution requires clear instruction on mercy option); Chenault v. Stynchcombe, 581 F.2d 444, 448 (5th Cir. 1978); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982); see also Presnell v. Zant, 959 F.2d 1524 (11th Cir. 1992) (error to condemn mercy).
(ii) Denigrating Mitigation.
81. Additionally, the prosecution is wont to disparage other mitigating circumstances, mischaracterizing the concept of "mitigation" as something that must "excuse" a crime, or relate explicitly to the time that the crime occurred. There have been examples of prosecutors from the Orleans Parish District Attorney's Office disparaging mitigating circumstances in closing argument during a capital case. For example, in Brown the prosecutor erroneously suggested that a mitigating circumstance had no value to the jury if it had no value to the victim:
Once again, you got, you sat here and listened to an argument from the defense attorney and you all ought to be insulted because it has nothing to do with this case. * * * He had a rough life. Well, there's a lot of kids who have a rough life and rough upbringing that never go out and kill anybody. What good does it do Omer Laughlin now, who's dead in his grave, that he had a rough life?

(State v. Brown Penalty Phase, at 349)
82. Mitigating circumstances obviously serve a critical function at the penalty phase, and it is entirely improper for a prosecutor to argue that they are presented solely to distract the jury from the prosecution's case:
The evidence presented was to take your mind off of the reality of April 16th.

(State v. Cage Penalty Phase at 535)
83. Perhaps an even more insidious argument came in the Brown penalty phase closing, where the prosecutor went down the list of statutory circumstances, disparaging the notion of mitigation by picking on circumstances that were clearly not present:
I'm going to read the mitigating circumstances. The statute says you can consider the following mitigating circumstances, and let's go down the list: Number one, the offender has no significant prior history of criminal activity. You have to chuckle at that. Six prior felony convictions. Throw it out. You can't consider that. . . .

(State v. Brown Penalty Phase, at 351-52). Of course, taking someone's life is not a matter at which one should "chuckle." This argument comes up in so many cases that one must suspect that the Orleans Parish prosecutors have had some sort of seminar on using this method of abusing the rights of the accused.
84. The extended version of this argument was made by the same Orleans Parish prosecutor's office in the Cage case:
You have an opportunity to consider mitigating circumstances. They list them in the Statute. The Judge is going to give you a list to take up there with you. Neither of the attorneys talked about any of them. There hasn't been any mitigating circumstances presented to you. I'm going to read them to you. The following shall be considered mitigating circumstances: one, the offender has no significant prior history of criminal activity. There's no evidence of that. They both do. He's worse. He's bad, but Thomas is worse. Two, the offense was committed while the offender was under the influence of extreme mental or emotional disturbance. No evidence of that. Three, the offense was committed while the offender was under the influence or domination of another person. No evidence of that. None. There's no evidence that anyone else made them go in and do what they did. Four, the offense was committed under circumstances which the offender reasonably believed to provide moral justification for his conduct. Well, that's ridiculous. Throw it out. It's not here. It could never be in this situation. Five, at the time of the offense, the capacity of the offender to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was impaired as a result of mental disease, defect, or intoxication. No evidence of mental disease, defect, or intoxication. No evidence. Next, the youth of the offender at the time of the offense. Thirty years old, thirty-five years old. Folks, we're not talking about a 17 year old teenager who goes and arm robs a convenience store and in the excitement of the incident the gun goes off and kills the clerk. That's first degree murder. And I think in that case a lawyer could get up here and say, he's young, he's never been in trouble before, give him a break. Not here, not for these two men, men. Not young men, men. They're grown men. The offender was a principal whose participation was relatively mild. Well, we know Thomas killed at least one of them, and Edward held the other one, or held the one that he killed. We don't know which order it was in the other way around. But they both actively participated in the killing of the children. Throw that out. It doesn't exist here. And finally, any other relevant mitigating circumstances. I haven't heard any. We heard testimony from the mother. He was a good boy when he was young. He had a great life up until the time he was 15. It's not relevant. It's not a mitigating circumstance.

(State v. DeBoue Penalty Phase at 28-30) Of course, mitigating circumstances are submitted for the benefit of the accused, and it is simply unfair to confuse the jury by discussing circumstances that have absolutely nothing to do with the case.
85. There are other ways that the prosecution denigrates the notion of mitigation. For example, if the prosecutor is going to argue at any stage of the process that someone addicted to alcohol or other similar drug invariably makes a fully 'rational' decision to become an alcoholic or substance abuser, or even to use it on an occasion, Mr. CLIENT demands an evidentiary hearing to prove that this is baloney. Where a person has a genetic predisposition towards substance abuse, the "choice to become an alcoholic" red herring is particularly pernicious. See, e.g., Francis v. Franklin, 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985) (negation of specific intent must constitutionally be charged as a defense to intentional murder).
86. Similarly, the prosecution is prone to denigrate other mitigating circumstances with references to prejudicial and irrelevant matters which have nothing to do with the case at hand. In flagrant violation of Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), members of the District Attorney's Office have previously opined that they do not see the relevance of other critical mitigating evidence, as discussed above.
87. The prosecutor in this case might try to emulate other prosecutors and argue to the jury that a guilty verdict eliminates all questions concerning the defendant's culpability for the crime from the case. Of course, this is a misstatement of the law, for the United States Supreme Court's decisions make clear that the jury must be permitted to consider, "as a mitigating circumstance, any . . . of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (emphasis in original); accord Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986); Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987); Mills v. Maryland, 486 U.S. ___, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988); McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). These efforts to exclude potentially mitigating evidence should not be injected into the trial.
88. A prosecutor should not distort the law concerning the jury's deliberations at the penalty phase in other ways. For example, he must not erroneously tell the jurors they must find that the mitigating circumstances outweigh the aggravating circumstances before they can return a life sentence. Cf. State v. Wood, 648 P. 2d 71, 83 (Utah 1982); State v. McDougall, 301 S.E. 2d 308 (N.C. 1983).
89. The prosecutor may not tell jurors that if they found the aggravating circumstances to outweigh the mitigating circumstances, they had no choice but to return a death sentence. This is simply not the law. Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976); Roberts v. Louisiana, 431 U.S. 633, 97 S. Ct. 1993, 52 L. Ed. 2d 637 (1977); Sumner v. Schuman, 483 U.S. 66, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987).
Q. Arguing about the possibility of Appeal.
90. Any argument which misleads the jury with regard to the law and its role is improper and may deny the defendant a fair trial. For example, in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct 2633, 86 L. Ed. 2d 231 (1985), the Supreme Court found that an argument on the right to appeal, which misled the jury into thinking that their decision was reviewable on its merits, was impermissible because it was inaccurate and misleading in its description of the role of the Mississippi Supreme Court in reviewing the death sentence. The argument went as follows:
[BY D.A. WILLIAMS:] I'm in complete disagreement with the approach the defense has taken. I don't think it's fair. I think it's unfair. I think the lawyers know better. Now, they would have you believe that you're going to kill this man and they know -- they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it. Yet, they . . .

COUNSEL FOR DEFENDANT (Mr. Horan): Your Honor, I'm going to object to this statement. It's out of order.

ASSISTANT DISTRICT ATTORNEY (Mr. Williams): Your Honor, throughout their argument, they said this panel was going to kill this man. I think that's terribly unfair.

THE COURT: Alright, go on and make the full expression so the Jury will not be confused. I think it proper that the Jury realizes that it is reviewable automatically as the death penalty commands. I think that information is now needed by the Jury so they will not be confused.

ASSISTANT DISTRICT ATTORNEY (Mr. Williams): Throughout their remarks, they attempted to give you the opposite, sparing the truth. They said "Thou shalt not kill." If that applies to him, it applies to you, insinuating that your decision is the final decision and that they're gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up and that is terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that the decision you render is automatically reviewable by the Supreme Court. Automatically, and, I think it's unfair and I don't mind telling them so.

91. The United States Supreme Court reversed Bobby Caldwell's death sentence, and the prejudicial character of the error was later reemphasized when he was sentenced to life at retrial. The Supreme Court has subsequently held that the fact that any "competent attorney should have been aware [that this was error] is apparent . . . ." Dugger v. Adams, 489 U.S. 401, 109 S. Ct. 1211, 1214 n.3, 103 L. Ed. 2d 435, 442 n.3 (1989). Indeed, variations on this same theme have been condemned by courts all across this Nation for many years. See Beard v. State, 19 Ala. App. 102, 95 So. 333 (1923); People v. Morse, 60 Cal. 2d 631, 649-53, 388 P.2d 33, 44-47 (1964); Pait v. Florida, 112 So. 2d 380, 383-84 (Fla. 1959); Hawes v. State, 240 Ga. 327, 333, 240 S.E. 2d 833, 839 (1977); State v. Willie, 410 So. 2d 1019, 1034-35 (La. 1982); People v. Johnson, 284 N.Y. 182, 30 N.E. 2d 465 (1940); State v. Jones, 296 N.C. 495, 498-99, 251 S.E. 2d 425, 427 (1979); State v. Gilbert, 273 S.C. 690, 696-98, 258 S.E. 2d 890, 894 (1979); see, generally, ABA Standard for Criminal Justice Section 3.90 (2d ed. 1980) ("References to the likelihood that other authorities . . . will correct an erroneous conviction are impermissible efforts to lead the jury to shirk responsibility for its decision").
92. Indeed, all efforts by prosecutors to relieve juries of their critical responsibility to decide upon the life or death of the defendant have repeatedly been condemned by the Louisiana Supreme Court, as well as by the federal courts. It is essential that jurors recognize "the truly awesome responsibility of decreeing death for a fellow human [so that they] will act with due regard for the consequences of their decision." McGautha v. California, 402 U.S. 183, 208 (1971).
93. Thus, "it is constitutionally impermissible to rest a death sentence on a determination made by sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell v. Mississippi, 86 L. Ed. 2d at 239; see also Wiley v. State, 449 So. 2d 756 (Miss. 1984); West (Samuel Tony) v. State, 463 So. 2d 1048 (Miss. 1985). By informing the jury that they only prescribe punishment, the prosecutor implies that their sentence might not in fact be carried out.
94. This rule is applied in various factual situations. For example, in Buttrum v. Black, 721 F. Supp. 1268, 1317 (N.D.Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990) (per curiam), the Court reversed for a comment that was less prejudicial than a comment made directly about the right to appeal. The prosecutor argued that Janice Buttrum was responsible for her own death, and that in imposing a death sentence the jury was "merely one cog in the criminal process." Id., 721 F. Supp. at 1316. The judge did not agree with this assessment, but overruled an objection. Id. at 1317. However, the Court still found that relief should be granted. Id.; see also Tucker (William Boyd) v. Kemp, 762 F.2d at 1485-86 (argument that jury was merely the "last link" in chain consisting of police, prosecutor, and grand jury improperly trivialized the importance of the jury); Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988) (en banc), cert. denied, 489 U.S. 1071, 109 S. Ct. 1353, 103 L. Ed. 2d 821 (1989); Wilson v. Kemp, 777 F.2d 621, 627 (11th Cir. 1985), cert. denied, 476 U.S. 1153, 106 S. Ct. 2258, 90 L. Ed. 2d 703 (1986); Blanco v. Dugger, 691 F. Supp. 308, 332-33 (S.D. Fla. 1988).
95. Under state law, this is also an improper consideration in the context of a capital case. In State v. Clark, 492 So. 2d 862 (La. 1986), the Court condemned an argument that "a finding of death . . . automatically must be reviewed by the Louisiana Supreme Court." Id. at 870. "Remarks concerning appellate review of death sentences are generally inappropriate, because such remarks may suggest to a conscientious juror that his awesome responsibility is lessened by the extensive system of subsequent review, thus diverting the juror's attention from the central sentencing issue of whether death is the appropriate punishment for this offense and this offender." State v. Robinson, 421 So. 2d 229, 233 (La. 1982); see also State v. Willie, 410 So. 2d 1019, 1034 (La. 1982) ("A prosecutor's argument conveying the message that the jurors' awesome responsibility is lessened by the fact that their decision is not the final one, or which contains inaccurate or misleading information, deprives the defendant of a fair trial in the sentencing phase and requires that the death penalty be vacated").
96. Turning to some examples of this error that have arisen in Orleans Parish, when the defense seek to impress upon members of the jury the awesome burden of their task, it is entirely inappropriate to respond by trying to lessen this burden:
Don't let Defense attorneys who can speak well shift blame or shift burden upon you. It's not your fault that you're here. You're doing a duty to this community and a service to this community that has to be done.

(State v. DeBoue Penalty Phase at 26-27)
97. For other examples of this improper argument, we can turn to the closing argument made in the Cage case:
They argued to you that life is precious, so don't you take his life. Well, you are not taking his life. You are not doing that. You are making a legal decision, a judgment in this case as to what his punishment will be.

(State v. Cage Penalty Phase at 574)
98. In another example from the Cage case we see the prosecution trying to down play the seriousness of the life-or-death decision by turning outside the evidence to what other juries may have done. This example is also important as it demonstrates the sort of side comment that shows contempt for the judge's ruling, as well as the rule of law:
You are not in a unique position. You are not the only jurors in the world who have had to consider this. Other juries have come back --

BY MR. MERRIT:

That's outside of the evidence, Your Honor.

BY THE COURT:

I would sustain that as to what other juries might have done.

CLOSING ARGUMENT BY MR. McMAHON:

They don't want you to hear this.

(State v. Cage Penalty Phase at 540)
99. A similarly inaccurate statement was made in the first trial of this case, where the prosecutor argued to the jury that they were to "recommend" the death penalty. (Tr. IV/703) Of course, such a statement is intended to reduce the jury's sense of responsibility by convincing its members that the trial court need not accept the jury's "recommendation," where this is, of course, not true.
R. Arguing Pardon, Probation or Parole.
100. The principle discussed in the preceding section does not apply solely to the possibility of an appeal. In State v. Copeland, 530 So. 2d 526 (La. 1988), the Court held that a "discussion of future remedial measures increases the potential for arbitrary decision making by the jury and is irrelevant to the jury's duty. Thus, there is almost a blanket prohibition of these matters." Id. at 538; see also State v. Felde, 422 So. 2d 370, 389 (La. 1982) ("'predictions of the consequences of the jury's verdict' are improper"); State v. Moore, 432 So. 2d 209, 222 (La. 1983) (prosecutors should avoid "mention of the defendant's potential for future release should he be given life imprisonment, . . . [or] any references . . . as to appellate review of sentences").
101. First, it is improper to argue the possibility of parole to the jury. State v. Jordan, 420 So. 2d 420, 426-27 (La. 1982). In Williams v. State, 445 So. 2d 798 (Miss. 1984), the Mississippi Supreme Court explained this rule:
A jury should have no concern with the quantum of punishment because it subverts a proper determination of the sentencing issue.

Reference to the possibility of parole should the defendant not be sentenced to die [is] wholly out of place at the sentencing phase of a capital murder trial for two additional reasons.

First, such references inevitably have the effect of inviting the jury to second guess the Legislature. The Legislature has declared that persons sentenced to life imprisonment may under certain circumstances become eligible for parole. Mississippi Code Annotated section 47-7-3(1) (Supp. 1982). It is not more proper for the jury to concern itself with the wisdom of that legislative determination than it is for the jury to consider the Legislature's judgment that death in the gas chamber be an authorized punishment for capital murder. Johnson v. State, 416 So. 2d 383, 392 (Miss. 1982).

Second, parole is not automatic. No person sentenced to life imprisonment has any 'right' to parole. Allowing argument or testimony regarding the possibility of the defendant some day being paroled is in effect inviting the jury to speculate how ten years in the future the parole board may exercise its legislatively granted discretionary authority. This would introduce into the sentencing proceedings an 'arbitrary factor' proscribed by section 99-19-105(3)(a).

Id. at 810-12 (emphasis in original; citations omitted); see also Tucker (Richard) v. Kemp, 762 F.2d at 1507-08; United States v. Williams, 523 F.2d 1203 (5th Cir. 1975).
102. Second, the possibility that the Governor may exercise his pardon power is utterly inappropriate to the jury's decision. In State v. Brown, 414 So. 2d 689 (La. 1982), the Supreme Court explicitly condemned this, holding that the "jury improperly considered the possibility of pardon in recommending the sentence of death." Id. at 701; see also State v. Lindsey, 404 So. 2d 466, 484 (La. 1981) (condemning prosecutor's argument and judge's definition regarding pardon and commutation); State v. Copeland, 419 So. 2d 899, 910 (La. 1982).
103. Third, the prosecutor cannot argue the possibility of a pardon: "An argument based on the law governing pardon and commutation or its administration by the governor and other executive officers is entirely inappropriate to a capital sentencing proceeding. * * * Jurors are thereby encouraged to consider the vicissitudes of executive clemency instead of the clear, objective, and specific standards enacted for the purpose of channeling their discretion." State v. Willie, 410 So. 2d 1019, 1033 (La. 1982).
104. Indeed, reference should be made to no such alternative to the accused spending every last day of his or her natural life in prison. See State v. Sonnier, 379 So. 2d 1336, 1371 (La. 1979) (reversal where trial judge gave an instruction that "the defendant, if sentenced to life imprisonment without benefit of parole, probation or suspension of sentence, would be eligible for participation in a work-release program" (emphasis in original)).
S. Denigration of the seriousness of a life sentence.
105. All efforts to pretend that a life sentence is not a serious punishment will be condemned. For example, the Court had held that "[i]t was . . . improper for the prosector to suggest that the defendants would laugh at the jury if they received sentences of life imprisonment." State v. DeBoue, 552 So. 2d 355, 364 (La. 1989). Thus the argument made in this case when it was first tried--that if sentenced to life Mr. CLIENT would have beaten the system (Tr. IV/718)--was entirely improper.
106. This includes the false and improper "Life of Riley" speech that tells the jury that life is all air conditioning, steaks and MTV up at Angola Penitentiary. See State v. Cage, 554 So. 2d 39, 45 (La. 1989) ("The state's reference to life at the Louisiana State Penitentiary was also improper"); State v. Kyles, 513 So. 2d 265, 275 (La. 1987) (condemning argument made by New Orleans prosecutor that "[h]e'll have dreams, he'll read books, he'll watch cable television. Mrs. Dye won't. Mrs. Dye's family won't").
107. The Life of Riley speech is a common one in closing arguments in this Parish:
He talks about Tommy Cage and the electric chair. You are not going to commit him to the electric chair, Ladies and Gentlemen. He has already committed himself to the electric chair.
Let's suppose for a minute that you feel sympathetic for him, like Mr. Bertel has just asked you to do. And you commit him to that life in prison. Well, let me tell you something. Life in Angola means life goes on. Where will he be ten years form now? Where will he be? Riding in the prison rodeo, playing softball, working in the fields, watching cable TV? And Arthur Johnson, Jr. is --

(State v. Cage Penalty Phase at 560) This passage illustrates precisely the problem with the argument. Perhaps the prosecutor should spend some time in Angola to find out whether the inmates there spend their entire time riding in rodeos, and watching cable television. It is not only well beyond the evidence, but also entirely inaccurate.
108. Conversely, "[t]o refer to the death penalty as 'nothing unusual' and as not a harsh penalty is inaccurate. . . ." State v. Monroe, 397 So. 2d 1258, 1271 (La. 1981).
109. Thus, while the prosecutor might properly argue that the jury should consider the death penalty to be the harshest sentence available under law, any argument concerning life sentence as a "joke" or a "free killing" is inaccurate and improper. See Williams v. State, 445 So. 2d 798, 808 (Miss. 1984) (improper for the prosecutor to argue, "are you looking for an excuse or reason" to "turn that person loose").
110. Precisely this form of improper "life is a victory that he will laugh at" argument has been made by prosecutors from this office:
What do you think he's going to do if you sentence him to life? It's going to be a joke. It's going to be like why were we here today? He wins. He wins. He says to you, "Ha! I shot the boy and I robbed his friends, and you, society, you gave me 298 years, and you thought that was going to hurt me, but uh uh, I went out and I killed a man, so give me life. I can't live 298 years. I can't do that kind of time. Give me life. "It's a joke. It's an absolute joke. You can't hurt him by sentencing him to life imprisonment, and I'll submit to you that's what you ought to do, you ought to hurt him because you ought to make him pay for what he's done,

(State v. Brown Penalty Phase, at 354-55)
111. This is a popular argument in this prosecution office, and found a reprise in the DeBoue case:
Folks, you give them life imprisonment, they win. They'll walk out of here and laugh. They will walk out of here and laugh at you if you give them life imprisonment knowing what they have done and what they have been convicted of.

(State v. DeBoue Penalty Phase at 31-32) These types of argument should be flatly prohibited.
T. The Cost of Incarceration.
112. We all know that it actually costs far, far more to execute someone than to keep him or her in prison forever. It is partly for this reason that a prosecutor may not say that a life sentence costs to much: "the prosecutor's remarks about the societal costs of a life sentence, misspent tax dollars, future escapes, more killings by the defendant, were improper." State v. Busby, 464 So. 2d 262, 267 (La. 1985); State v. Moore, 414 So. 2d 340, 347 (La. 1982) ("A prosecutor should avoid remarks predicting societal costs and consequences of a not guilty verdict").
U. Inflaming the Passions and Prejudices of the Jury.
113. Appeals to passion and prejudice and other inflammatory appeals to the jury are also impermissible. See Viereck v. United States, 318 U.S. 236, 247-48 (1943); United States v. Garza, 608 F.2d 659 (5th Cir. 1979); United States v. Gaspard, 744 F.2d 438 (5th Cir. 1984); Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985); Conner v. State, 251 Ga. 113, 303 S.E.2d 266 (1983); American Bar Association, Standards Relating to the Prosecution Function, Section 3-5.8 (c) (1982). In closing arguments made by members of this District Attorney's Office these come in various forms.
114. In any case in this State, the law provides that:
The argument shall not appeal to prejudice.

La. Code Cr. Pro. Art. 774. This is particularly true in a capital case, where the cases have made very clear "that arguments . . . shall not appeal to prejudice." State v. Berry, 391 So. 2d 406, 415 (La. 1980) (citing La. C. Cr. Pro. art. 774); see also State v. Smith, 554 So. 2d 676 (La. 1989). Indeed, the capital statute requires that the Supreme Court "must look to whether the argument introduced passion, prejudice or any other arbitrary factor into the proceeding which contributed to the jury's recommendation of the death penalty." State v. Byrne, 483 So. 2d 564, 574 (La. 1986).
115. It may seem incredible to this Court, but apparently prosecutors in Orleans Parish think that they can actually make overt appeals to passion and prejudice:
Go back to April 16th. That should inflame you --

BY MR. JOHNSON:

Objection.

CLOSING ARGUMENT BY MR. McMAHON:

That should inflame any well-thinking person.

(State v. Cage Penalty Phase at 537)
116. Another particularly shocking variation on the theme of inciting the jury is the predilection in the prosecutor's office to play to the crowd, getting the audience cheering for death:
And then give me the chance to come back here and tell you why the death penalty is the appropriate penalty. I'll do that for you all. I promise you I'll do that.
Thank you.

(There was rather loud applause from the audience.)

BY THE COURT: Silence. Silence. We're not going to have any of that. We're not going to have any of it.

(State v. DeBoue Guilt Phase at 102)
117. Prosecutors from this office habitually make inflammatory arguments, trying to get the jury outraged at what happened to the victims:
And think about Naquita Miller and Jamaal Moore, and I'll tell you why you should think about them, the most horrible all of this. If you think about them, you know that they knew what was going to happen to them before they died. They knew. This wasn't instantaneous. They just didn't die. They laid there and they knew they were going to die. That little girl reached for that telephone. She knew she was going to die. Six years old, and she knew she was going to die. Jamaal Moore laid there in that bathtub, hanging on to that policewoman, he knew he was going to die. Eleven years old. He knew he was going to die.

(State v. DeBoue Guilt Phase at 76)
118. In this regard, there are other more subtle examples of this argument that should be prohibited. For example, it is improper for the prosecutor to tell the jury that it is "the last line of defense" again these outside influences. Tucker v. Kemp, 762 F.2d at 1508.
119. Other subtle methods of injecting emotion have appeared in arguments made by the Orleans Parish prosecution office. For example, the prosecution should not paint a picture that frightens the jury into a particular course of action:
And the first time we went out to visit the scene, it really -- it gives you a funny feeling to know that a human being ran along that alley, running for his life only to receive what you saw in State's Exhibit 13. You saw it blown up here yesterday. A shot with deadly accuracy into his sacrum.

(State v. Cage Guilt Phase at 432)
120. A wholly distinct area of prejudice is the prosecutor's attempt to "stomp his feet" and excite/incite the jury to return a guilty verdict or a death sentence. The Mississippi Supreme Court has not minced words when condemning such practices:
The interest of the State of Mississippi is best served by the orderly rational lawful presentation of the facts and the law. That is the way the criminal justice system is designed to operate. Justice is not served by attorneys who use closing argument to express inflammatory personal ideas or engage in personal vilification. The purpose of . . . argument is to enlighten the jury, not to enrage it. Where counsel lacks the self-discipline necessary to avoid arguments such as these, that discipline should be imposed by the trial court from the bench. An otherwise orderly and fair trial can be instantly destroyed by such unprepared intemperate argument. The price that all of us must pay for these untimely flights of fancy is far too high.

Bridgeforth v. State, 498 So. 2d 796, 801 (1986).
121. Similar admonitions have emanated from other courts, prohibiting the emotional flights of fancy in which this District Attorney's Office commonly indulges. See, e.g., Brooks v. Francis, 716 F.2d 780, 788 (11th Cir. 1983), reh'g granted and vacated, 728 F.2d 1358 (11th Cir. 1984) ("A prosecutor may not incite the passions of a jury when a person's life hangs in the balance"); Wallace v. Kemp, 581 F. Supp. 1471, 1482 (M.D. Ga. 1984), rev'd, 757 F.2d 1102 (11th Cir. 1985) ("The fears and passions of a jury cannot be excited by speculation as to what might happen if the death penalty is withheld."); Tucker v. Zant, 724 F.2d 882, 888 (11th Cir. 1984) ("The Constitution will not permit arguments on issues extrinsic to the crime or the criminal aimed at inflaming the jury's passions, playing on its fears, or otherwise goading it into an emotional state more receptive to the call for imposition of death . . .").
V. Violations of the Golden Rule.
122. One particular example of an argument that is designed to inflame the jury is the violation of the so-called "Golden Rule," where prosecutors ask the jury to place themselves in the position of the victim in a case. See Rhodes v. State, 547 So. 2dd 1201, 1205 (Fla. 1989) (prosecutor engaged in misconduct by "ask[ing] the jurors to try to place themselves in the hotel during the victim's murder"); Dean v. Commonwealth, 777 S.W.2d 900, 904 (Ky. 1989) (prosecutor "sensationaliz[ed] victim's suffering" by making improper "golden rule" argument in his penalty-phase closing: "`Can you imagine the fear that went through the life of Brenda Church on this day? ... Can you imagine the fear and embarrassment ... the terror ... the humiliation?'"); Bertolotti v. State, 476 So. 2dd 130, 133 (Fla. 1985) ("the prosecutor made an argument which is a variation on the proscribed Golden Rule argument, inviting the jury to imagine the victim's final pain, terror, and defenselessness .... the prohibition of such remarks has long been the law in Florida").
123. The Louisiana Supreme Court has also applied this rule. See State v. Lindsey, 404 So. 2d 466, 483 (La. 1981) (condemning reference "implying that they should consider the victim a member of their immediate families").
W. Illegitimate Victim Impact Statements.
124. Another inflammatory argument that prosecutors sometimes indulge in is the irrelevant comment on the impact of the crime on the victim, or the character and status of the victim's family. See, e.g., Fuselier v. State, 468 So. 2d 45 (Miss. 1985). The Fifth Circuit has held that "the admission of emotionally charged, live testimony regarding the victim's character, demeanor and reputation in the community were altogether irrelevant to the question of whether [the accused] should be put to death." Rushing v. Butler, 868 F.2d 800, 804 (5th Cir. 1989); see also McGahee v. State, 554 So. 2d 454, 469-70 (Ala. Cr. App. 1989); People v. Simms, 121 Ill. 2d. 259, 117 Ill. Dec. 147, 520 N.E. 2d 308, 313-15 (1988); People v. Washington, 54 Ill. App. 2d 467, 204 N.E. 2d 25 (1964); People v. Simms, 121 Ill. 2d 259, 117 Ill. Dec. 147, 520 N.E. 2d 308 (1988); Grossman v. State, 525 So. 2d 833, 842 (Fla. 1988).
125. The prosecution is absolutely prohibited from arguing that the victim's family deserves a particular verdict. In Cage, the prosecutor tried to get away with this:
[BY THE PROSECUTOR:] That family there deserves--

BY MR. MERRIT:

That's outside the evidence also.

(State v. Cage Guilt Phase at 436)
126. The prosecutors in this office have often argued about the victim, asking the jurors to speculate about matters to which the victim's family did not testify:
You heard her testify and you think about how much she loved her husband and he's gone, and I submit to you you're right, you can't bring him back.

(State v. Brown Penalty Phase, at 355)
X. General Appeals to Prejudice.
127. Courts have repeatedly used strong language to condemn the prosecution's use of arguments appealing to jurors' prejudice during closing argument. See United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d Cir. 1973); Kelly v. Stone, 514 F.2d 18 (9th Cir. 1975); Miller v. North Carolina, 583 F.2d 701 (4th Cir. 1978).
128. In a capital case, the danger of prejudice is heightened. See, e.g., Brooks v. Francis, 716 F.2d 780, 788 (11th Cir. 1983), reh'g granted and vacated, 728 F.2d 1358 (11th Cir. 1984) ("A prosecutor may not incite the passions of a jury when a person's life hangs in the balance"); Wallace v. Kemp, 581 F. Supp. 1471, 1482 (M.D. Ga. 1984), rev'd, 757 F.2d 1102 (11th Cir. 1985) ("The fears and passions of a jury cannot be excited by speculation as to what might happen if the death penalty is withheld"); Tucker v. Zant, 724 F.2d 882, 888 (11th Cir. 1984), vacated, 474 U.S. 1001 (1985) ("The Constitution will not permit arguments on issues extrinsic to the crime or the criminal aimed at inflaming the jury's passions, playing on its fears, or otherwise goading it into an emotional state more receptive to the call for imposition of death . . . .").
129. In Smith v. State, 499 So. 2d 750 (Miss. 1986), the Mississippi Supreme Court held:
It is error in the course of a trial where one is charged with a criminal offense, for the State to inject extraneous and prejudicial matters and lay them before the jury. . . . One of the ingredients of a fair and impartial trial is that an accused person should be tried upon the merits of the case. . . . We commend vigorous prosecutions so long as they are conducted within the rules of evidence. Our adversary system of jurisprudence does not contemplate that attorneys for either side will be completely passive or indifferent during trials; yet, fundamental fairness requires that any defendant should not be subjected to testimony and tactics which are highly inflammatory and prejudicial as shown by the record before us.

Id. at 756-57 (quoting Tudor v. State, 299 So. 2d 682, 685 (Miss. 1974)).
130. In Louisiana we have a code section that specifically applies to appeals to certain prejudice, requiring an automatic mistrial upon a request by the defense:
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:

(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury. . . .

La. Code Cr. Pro. Art. 770. Indeed, Article 774 is even broader in this regard:
The argument shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice. . . .

La. Code Cr. Pro. Art. 774.
Y. Other Violations of Criminal Defendants' Rights.
131. These are but a few of the arguments that a prosecutor can make which would violate Mr. CLIENT's right to a fair trial. Various other examples could be given for the unfair manner in which prosecutors have dealt with previous capital prosecutions, and doubtless the possible misconduct are bounded only by a fertile imagination. This Court will therefore have to apply the principles developed in this motion in a variety of contexts.
132. The most important considerations are those general ones set forth in the canons of ethics and the ABA Standards. For example, the purpose of the prosecutor's opening statement is narrow and limited to a brief statement of the issues and an outline of evidence intended to be introduced. The prosecutor must avoid any utterance that cannot later be supported by evidence. As expressed in the ABA Standards Relating to the Prosecution Function Section 5.5:
In his opening statement the prosecutor should confine his remarks to evidence he intends to offer which he believes in good faith will be available and admissible and a brief statement of the issues in the case.

133. The role of a prosecutor in closing argument is to assist the jury in analyzing the evidence and to state his contentions as to the conclusions the jury should draw from the evidence. United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978). It has long been established that the prosecutor's closing argument may not vary from the law as given by the Court, evidence introduced at trial, or reasonable deductions from the evidence.
134. At the sentencing phase of a capital trial, it is particularly important that the prosecutor's closing argument be within proper bounds:
[I]t is most important that the sentencing phase of the trial not be influenced by passion, prejudice, or any other arbitrary factor. . . . With a man's life at stake, a prosecutor should not play on the passions of the jury.

Hance v. Zant, 696 F.2d 940, 951 (11th Cir. 1983).
135. Similarly, the Supreme Court of the United States has indicated that it is a denial of due process for consideration of the death sentence to be based upon factors that are not "fully subject to explanation by the defendant." Zant v. Stephens, 462 U.S. 862, 887, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). The prosecution must therefore remain within the strict confines of the law and the facts in making any statement or argument in this case.
136. Through this motion, Mr. CLIENT seeks to close the stable door before the horse gets out. He also does not wish to be placed in the position of having to make impossible objections. When there is an inappropriate argument that the prosecutor makes, it becomes twice as erroneous when the prosecutor prefaces it in such a way as to make any objection virtually impossible:
Of course, they don't want me to talk about the family --

BY MR. MERRIT: Your Honor, he's doing it [violating the Court's ruling] anyhow.

(State v. Cage Guilt Phase at 438-39) When the prosecution accuses the defense of trying to hide matters from the jury, this is highly prejudicial.
137. To avoid this kind of prejudice, he moves that this Court order the prosecutor to state which, if any, of the arguments set forth above he believes he should be permitted to make, whatever the possible context.
138. Mr. CLIENT hereby serves notice that he will make an evidentiary showing regarding each of the arguments which the prosecution believes to be proper, in order that he may perfect his record under Skipper v. South Carolina and Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), as set forth above.
WHEREFORE, Mr. CLIENT requests this Court to issue an order limiting the prosecutor's opening and closing statements, and any other statements made by the prosecution in this case.
1. The examples taken from capital cases in Orleans Parish are included solely by way of examples. The prosecution made the errors included in this motion in a very limited selection of cases, and there have almost certainly been a much broader range of errors that have been made in the past in these cases. Both this Court--familiar with the trial of cases in this Parish--and the prosecution--who give the closing arguments that are so replete with impropriety--are better versed even than defense counsel in the range of error that the prosecution commits.
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