Posted by Jonathan Adler:
*Irkick v. Bell*:
http://volokh.com/archives/archive_2009_05_10-2009_05_16.shtml#1242142322
This morning the U.S. Court of Appeals for the Sixth Circuit denied
death row inmate Billy Irick's habeas appeal in [1]Irick v. Bell.
Judge Batchelder delivered the opinion of the court, joined by Judge
Siler. Judge Gilman issued a separate opinion concurring in part and
dissenting in part.
The two issues on appeal were whether Irick was denied due process
because the prosecution had failed to turn over a witness statement at
trial and whether there was prosecutorial misconduct at the penalty
phase. The panel unanimously rejected the first argument (while
disagreeing on the proper standard of review), but split over whether
improper statements in the prosecutor's closing argument justified the
writ.
Irick alleged that the prosecutor's closing statement was improper,
and may have induced the jury to deliver a death sentence rather than
a life sentence. The relevant portion of the prosecutor's closing
statement was as follows:
But what about other people? Because, with your verdict, you make a
statement about things whether you realize it or not. You will make
a statement about the value of Paula�s life. You will make a
statement about what this man did and your willingness to tolerate
it. You will make a statement to everybody else out there what is
going to happen to people who do this sort of thing. Some of you
may believe that punishment is a deterrence. Some of you may not. I
don�t know. I personally believe that it is. I will tell you why,
and this is not an original thought. But I have heard this comment
made, and I guess it all depends on how you are turned [sic]�how
you look at the world.
Someone said that the death penalty is, sort of, like a lighthouse.
You don�t know how many ships have been saved by its beacon. You
can�t count that. You only know the ones that disregarded its
warning. Those, you count. Those are the Billy Ray Iricks.
I know this is a hard decision, ladies and gentlemen, but there
comes a time in society when we have the right to defend ourselves.
I suggest to you that it is more than a right to defend ourselves
in this kind of situation where there is a child involved. We have
a duty to defend ourselves, a duty to defend our families, and our
homes, and our children. That is what this case is about. And our
law is now being entrusted into your care. Thank you.
Quick test -- perhaps a review for those preparing for a CrimPro exam
-- what about this closing is improper? [Consult the opinion for your
answer.]
Assuming portions of the closing were improper, the majority held that
it did not justify overturning the death sentence. Any misconduct was
not "flagrant" and did not "so infect the trial with unfairness as to
make the resulting conviction a denial of due process." Judge Gilman,
on the other hand, believed "there is a reasonable probability that at
least one juror would have reached a different outcome as to Irick�s
sentence in the absence of the prosecutor�s misconduct." The state
courts had recognized that the prosecutor's statement was improper,
but had not found it to be reversible error, an outcome Judge Gilman
found to be unreasonable, justifying issuance of the writ.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/09a0168p-06.pdf
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