Darden v. Wainwright Brief of the Petitioner

    No. 85-5319 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1985

WILLIE JASPER DARDEN,
Petitioner,

vs.
LOUIE L. WAINWRIGHT, Secretary, 
Florida Department of Corrections.

On Writ Of Certiorari To The 
United States Court of Appeals 

For The Eleventh Circuit

BRIEF OF THE PETITIONER 
WILLIE JASPER DARDEN

ROBERT AUGUSTUS HARPER, JR.317 East Park Avenue 
Post Office Box 10132 
Tallahassee, Florida 32302 
(904) 224-5900

ATTORNEY FOR THE PETITIONER 
and Counsel of Record



QUESTIONS PRESENTED

1 . Did the prosecution's calculated, unprofessional and inflam­
matory closing argument rob the determination of petitioner s guilt 
of the fundamental fairness required by due process and deprive the 
determination of his sentence of the reliability required by the 
eighth amendment?

2. Whether the exclusion for cause of a potential juror solely on
the basis of his scruples against capital punishment can be reconciled 
with the decision of the Court in Wainwright v. Witt, 469 U.S. ---,
83 L.Ed.2d 841 (1985)?

3. Whether petitioner was denied the effective assistance of counsel 
at the sentencing phase of his trial, depriving him of a full, fair, 
and individualized determination of whether he should live or die?



TABLE OF CONTENTS
QUESTIONS PRESENTED 
TABLE OF AUTHORITIES 
CITATIONS TO OPINIONS BELOW 
JURISDICTION
CONSTITUTIONAL PROVISIONS INVOLVED 
STATEMENT OF THE CASE

I. STATEMENT OF THE FACTS
A. The Crime and the Evidence at Trial
B. Exclusion of Death-Scrupled Jurors
C. The Interjection of Race at the Voir Dire
D. The Closing Arguments
E. The Performance of Defense

Counsel at Sentencing
II. COURSE OF PROCEEDINGS 

SUMMARY OF ARGUMENT 
ARGUMENT

I. [■HE PROSECUTION'S CALCULATED, UNPROFESSIONAL AND CNFLAMMATORY CLOSING ARGUMENT ROBBED THE DETERMINATION 
3F PETITIONER'S GUILT OF THE FUNDAMENTAL FAIRNESS 
REQUIRED BY DUE PROCESS AND DEPRIVED THE DETERMINATION 
DF SENTENCE OF THE RELIABILITY REQUIRED BY THE EIGHTH 
AMENDMENT

Mr. Darden Was Denied Fundamental Fairness in tn 
Determinations of his Guilt or Innocence
Mr. Darden Was Denied Reliability in the Deter­
mination of his Sentence
Althouoh Mr. Darden Is Entitled to Relief under 
the Harmless Error Doctrine, He Suffered Actual 
and Substantial Prejudice



CONCLUSION



TABLE OF AUTHORITIES
PaaeCases t "

Adams v. Texas, 448 U.S. 38 (1980)
Adamson v. California, 332 U.S. 46 (1947)
Baldwin v. New York, 399 U.S. 66 (1970)
Barclay v. State, 343 So.2d 1266 (Fla. 1977)
Beck- v. Alabama, 447 U.S. 625 ( 1980)
Berger v. United States, 295 U.S. 78 (1935)
Boulden v. Holman, 394 U.S. 478 (1969)
Brooks v. Kemp, 762 F,2d 1383 (11th Cir. 1985)
Caldwell v. Mississippi, 472 U.S. ---, 86 L.Ed.2d

231 (1985)
California v. Ramos, 463 U.S. 992 (1983)
Chapman v. California, 386 U.S. 18 (1976)
Coleman v. State, 215 So.2d 96 (Fla. 4th DCA 1968)
Cooper v. 

cert.
State, 336 So.2d 1133 (Fla. 1976), 
denied, 431 U.S. 925 (1977)

Darden v. State, 218 So.2d 485 (Fla. 2d DCA 1969)
Darden v. State, 329 So.2d 287 (Fla. 1976)
Darden v. Wainwright, 513 F. Supp. 947 (M.D. Fla. 1981)
Darden v. Wainwright, 699 F.2d 1031 (11th Cir. 1983)
Darden v. Wainwright, 725 F.2d 1516 (11th Cir. 1984)
Darden v. Wainwright, 767 F.2d 752 (11th Cir. 1985)
Darden v. Wainwright, No. 79-566 Civ. T-H (M.D. Fla. 

April 15, 1981)
Davis v. Georgia, 429 U.S. 122 (1976)
Donnelly v. De Christoforo, 416 U.S. 637 (1974)
Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985)



Duncan v. Louisiana, 391 D.S. 145 (1968)
Eddings v. Oklahoma, 455 U.S. 104 (1982)
Estelle v. Williams, 425 U.S. 501 (1976)
Estes v. Texas, 381 U.S. 532 (1965)
Gardner v. Florida, 430 U.S. 349 (1978)
Gibson v. State, 351 So.2d 948 (Fla. 1977)
Green v. Georgia, 442 U.S. 95 (1979)
Harris v. State, 414 So.2d 557 (Fla. 3d DCA 1982) 
Johnson v. Louisiana, 406 U.S. 356 (1972)
Kampshoff v. Smith, 698 F.2d 581 (2d Cir. 1983) 
Kyle v. United States, 297 F.2d 507 (2d Cir. 1961)
Lisenba v. California, 314 U.S. 219 (1941)
Lockett v . Ohio, 438 U.S. 586 (1978)
People v. Savvides, 1 N.Y. 2d 554, 154 N.Y.S.2d 

885, 136 N.E.2d 853 (1956)
Proffitt v. Florida, 428 U.S. 242 (1976)
Roundtree v. State, 229 So.2d 281 (1st DCA 1969), 

app. dismissed, 242 So.2d 136 (Fla. 1970)
Smith v. Wainwright, 741 F.2d 1248 (11th Cir. 1984)
Songer v. State, 322 So.2d 481 (Fla. 1975)
Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983)
Stone v. Powell, 428U.S. 465 (1976)
Strickland v. Washington, ___ U.S. 80 L.Ed.2d 674 (1984)
Taylor v. Kentucky, 436 U.S. 478 (1978)
Tucker v. Kemp, 762 F.2d 1480 (11th Cir. 1985)
United States v. Ash, 413 U.S. 300 (1973)
United States v. Cronic, ____ U.S. ____, 80 L.

657 (1984)



United States v. Young, 470 U.S. ____, 84 L.Ed.2d
1 (1985)

United States ex rel. Williams v. Twomey, 510 F.2d 
634 (7th Cir. 1974)

Wainwright v. Witt, 469 U.S. ___, 83 L.Ed.2d 841 
(1985)

Witherspoon v. Illinois, 391 U.S. 
Woodson v. North Carolina, 428 U.S 
Zant v. Stephens, ____ U.S. ____,

510 (1968)
. 280 (1976)
77 L.Ed.2d 235 (1983)

Statutes:
Fla. Stat. § 921.141(2)(a)(b)(c)

S 921.141(3)
1979 Fla. Laws ch. 79-353
28 U.S.C. 5 1 254( 1 )

§ 2241
Other Authorities
ABA Code of Professional Responsibility 

Preamble and Preliminary Statement 
EC 7-24 
EC 7-25 DR 7-106(0

ABA Model Rules of Professional Conduct (1983)
Rule 3.4(e)

A3A Standards for Criminal Justice (2d ed. 1980)
§ 3-5.8(c)
S 4-7.8

Annotation, 88 A.L.R.3d 449 (1978)
Barkowitz and Brigham, Recognition of Faces;— OwnRace Bias, Incentive, and Time Delay, 12 Journal 

of. Applied Social Psychology, 4:255 ( 1982)
Brigham and Maass, Accuracy of Eyewitness'identifications in a Field Setting, 42 Journal 

of Personality and Social Psychology 673 (1982)



Consideration of Mitigating circumstances, 69 Cal. L. 
Rev. 317 (iyaiF

Y. Kamisar, W. LaFave & J. Israel, MODERN CRIMINAL 
PROCEDURE (5th ed. 1980)

Note, Did Your Eves Deceive You? Expert Psychological
^ J S s S S n S y -  j  the Unreliability 5t B Y ~ i*b5 PIdentification, 29 Stan. L. Rev. 969 (1977)
Vance, The Death Penalty After Furman, 48 Notre Dame 

Lawyer 850 (1973)
Vess, Walking a Tiahtropet A Survey o£ £the Prosecutor's Closing Argument, 64 J. Cnm. L. &

C. 22 (19?3l
PSYCHOLOGY OF EYEWITNESS TESTIMONY (1970).Yarmey, THE



No. 85-5319
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1985

WILLIE JASPER DARDEN,
Petitioner,

vs.
LOUIE L. WAINWRIGHT, Secretary, Florida Department of Corrections.

On Writ Of Certiorari To The 
United States Court of Appeals 

For The Eleventh Circuit

BRIEF OF THE PETITIONER 
WILLIE JASPER DARDEN

CITATIONS TO OPINIONS BELOW
The opinion of the Supreme Court of Florida on direct appeal 

is reported as Darden v. State, 329 So.2d 287 (Fla. 1976). The 
opinion of the federal district court denying habeas corpus 
relief is reported as Darden v. Wainwright, 513 F.Supp. 947 
(M.D.Fla. 1981). The decisions of the court of appeals are 
reported as Darden v. Wainwright, 699 F. 2d 1031 (11th Cir. 1 983) 
(panel opinion), on rehearing, 708 F. 2d 646 ( 1 1th Cir. 1983) (en 
banc court affirming by egually divided vote), on rehearing, 725 
F. 2d 1 526 ( 1 1 th Cir. 1984) (en banc court reversing and granting 
the writ). The opinion of the court of appeals on remand from 
this court is reported as Darden v. Wainwright, 767 F. 2d 752



(flW W srvi K*r5»> '>rrv»r

(11th Cir. 1 985) (en banc court affirming denial of writ by the 
district court).

JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C.

§§ 1254(1) and 2241.
CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the sixth amendment to the Constitution 
of the United States, which provides in relevant part: "In all 
criminal proceedings, the accused shall enjoy the right ... to 
have the assistance of counsel for his defense"; the eighth 
amendment, which provides: "Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel and unusual punishments 
inflicted"; and the fourteenth amendment, which provides in 
relevant part: "(N]or shall any State deprive any person of life, 
liberty, or property, without due process of law...."

STATEMENT OF THE CASE 
I. STATEMENT OF THE FACTS

A. The Crime and the Evidence at Trial
Carl's Furniture Store in Lakeland, Florida, was held up 

early in the evening of September 3, 1973. One of its owners, 
Carl Turman, was shot and killed as he entered through a back 
door. Phillip Arnold, a sixteen-year-old who lived nearby, was 
shot and wounded as he sought to give aid to Mr. Turman. The 
gunman also attempted a sexual assault on Mrs. Turman.

Just a few moments after these events, Willie Jasper Darden, 
a black man, lost control of his car and struck a telephone pole

2



■w w n w r

a little over three miles from the furniture store. At the time* 
he was on weekend furlough from a Florida prison and was return­
ing to his girlfriend's house in Tampa. A few hours later, Mr. 
Darden was arrested at the home of his girlfriend for leaving the 
scene of an accident. Later the same night, he was charged with 
the murder of Mr. Turman, the attempted murder of Mr. Arnold, and 
the robbery that accompanied these shootings. R. 586.

The state's case rested primarily on identifications of 
their black assailant by the white victims, Mrs. Turman and Mr. 
Arnold, and limited forensic evidence. The latter consisted of 
testimony by a deputy sheriff that, a day and one-half after the 
crime, he found a .38 caliber pistol in^a ditch under four inches 
of water thirty-nine feet from the highway and about an equal 
distance from the place of petitioner's automobile accident. R. 
503-04, 511. It was shown at trial that the pistol was the same 
caliber as the murder weapon and that four bullets had been fired 
from it in a sequence that matched the shooting during the crime. 
The prosecution was unable to connect the pistol to the crime by 
ballistic or other forensic evidence. R. 357-58, 514, 517-22.

Mr. Darden testified at length. R. 571-659. He told how 
his automobile had skidded from the highway in wet weather as he 
hastened back to Tampa from Lakeland to meet his girlfriend and

Citations to the transcript of the trial record are designated as 
r . . Citations to the record on appeal to the Florida
Supreme Court are designated as A.R. ____. Citations to the
hearing before the federal magistrate on habeas corpus are 
designated as H.C. ____.

3



attend a wedding later on that evening. R. 574-76. He explained 
that, with the aid of a passing motorist, he had sought unsucces­
sfully to locate a wrecker to take the disabled auto in tow. 
Failing in this effort, he had obtained a ride to Tampa.* This 
was corroborated by the state's witnesses, who also noted Mr. 
Darden's calm and poise during this episode. R. 577-579, 330-31, 
334-35, 340-41 . Mr. Darden denied that he had been at the 
furniture store or had had anything to do with the crimes with
which he was charged. R. 592-93, 598-99.

Mr. Darden's testimony concerning the events of the evening 
of September 8, 1973, was both plausible and partially corrobora­
ted by the state's evidence. Apart from the identification 
testimony of Mrs. Turman and Mr. Arnold, it was not in direct 
conflict with the state's evidence. Thus, to a large degree, the 
state's case rested on the "jury's determination of the credibi­
lity of Darden's alibi testimony as against the eye-witness 
testimony of the victims." Darden v. Wainwright, No. 79-566 Civ. 

f Slip op. at 22 (M.D. Fla. April 15, 1981) (Magistrate s
Recommendation and Report).

This eyewitness testimony was not without substantial 
problems. Immediately after the offense, Mrs. Turman told 
officers that she could not remember what the subject looked like 
or what he was wearing. This was, she explained, because she was 
scared to look while the crime was in progress, and at one point, 
covered her face with her hands so she would not have to see. R.

4



240, 280. See also R. 232, 236. She later described the man as
the same height as herself, 5'6", R. 238 , heavy-set, very
clean-shaven, black, approximately 200 pounds, with a fat face.
R. 237, 239 . At trial, she was sure the shirt was a pullover,
with a stripe around the neck and waist. R. 226-27. Mr. Arnold
confirmed part of her identification, remembering a heavy set man
wearing a knit shirt of dull, light color with a ring around the
neck, R. 443, and that the assailant was clean shaven. R. 476,

2498 . But he testified that the gunman was almost his height, 
about 6 feet two inches tall. R. 496-97.-

In contrast to these descriptions, petitioner was five feet, 
ten or eleven inches tall and weighed approximately 170 to 175 
pounds. R. 596. Moreover, one of the state’s witnesses a 

.motorist who had stopped at the scene of the auto accident that, 
according to the prosecution's theory, occurred when petitioner 
was fleeing the scene of the crime —— testified that petitioner 
was wearing a white shirt that buttoned down the front and that 
he had a gray moustache. R. 311, 313, 318-20.

The substantial discrepancies between Mr. Darden's actual 
apoearance and Mrs. Turman's and Mr. Arnold's descriptions of 
their assailant are not surprising in light of the conditions 
that surrounded their initial identifications of Mr. Darden. 
Three days after the incident, two sheriff's deputies visited Mr.

^ In fact,in excluding one of the photographs in the photo 
show-up, described below, Mr. Arnold eliminated one photo because 
the person had a moustache. R. 464.

5



Arnold in the hospital, where he was recovering from his ballet 
wounds. R. 446 , 460-61 . According to Mr. Arnold's testimony, 
elicited out of the presence of the jury, he had by this time 
already read newspaper stories about the crime, R. 457-58, and he
probably knew of the arrest of a suspect. R. 462.

The deputies, Mr. Arnold recalled, had shown him six 
photographs and asked whether he could identify his assailant 
from among them. R. 446, 459-60. He immediately rejected four 
out of hand; "they didn’t look anything-at all like him." R. 449, 
461-64. He then wrote on a piece of paper the following informa­
tion:

"Both of these two look a little like him!
DID HE HAVE A MUSTACHE?
"I don't think so!"WHAT TYPE SHIRT WAS HE WEARING?"It was short sleeve. It was something like 
a red or orange and I think it was a a knit 
material, pale."

R. 455, 475. Mr. Arnold then picked out of the two remaining 
photographs the one that looked "a little like him." This 
picture bore the name "Darden" and the date of arrest, "9-9-73."

The circumstances surrounding Mrs. Turman's identification 
were as follows. The day following her husband's funeral, she 
was asked by the prosecutor to attend Mr. Darden's preliminary 
hearing. She was taken to a tiny courtroom with one black male 
sitting at defense table and no other blacks in the room. R. 
221—22. The prosecutor walked over to Mr. Darden, pointed at 
him, and asked: "Is this the man that did it?" A.R. 50. She

6



said yes. Id. Asked by the court whether she was sure that the 
man at the defense table was the assailant, she replied that 
"even with his back to me while I sat [at the rear of the 
courtroom] I reached over and touched my sister's hand and said, 
'That's him.'" A.R. 53.

The only physical characteristic which every witness who saw 
both men could agree on was race: they were both . "colored." The 
testimony of Officer Neill, who arrested Mr. Darden in Tampa, is 
particularly telling. Neill was asked if the man he arrested, 
Mr. Darden, fit the physical description given by Mrs. Turman. 
Neill replied: "Yes. The dark-colored automobile, the time
element, the car crash ... just lead me to believe this possibly 

—was him." Pretrial hearing of 1/9/73 at 82. This "physical 
desription" would have fit almost any black man near the scene of 
the crime that day. Indeed, the reliance on race as substantiat­
ing the identifications was something the prosecutor would return
to in his summation.

B. Exclusion of Death-Scrupled Jurors
At voir dire, several jurors with scruples against the death 

penalty were excluded for cause upon the motion of the prosecu­
tor. One of those excluded was potential juror Murphy. He was 
excluded solely upon the following question and answer:

THE COURT: Do you have any moral or reli­
gious, conscientious moral or religious 
principles in opposition to the death penalty 
so strong that you would be unable without 
violating your own principles to vote to 
recommend a death penalty regardless of the 
facts?

7



MR. MURPHY: Yes, I have.

R. 165. This was the only question asked Mr. Murphy.
C. The Interjection of Race at the Voir Dire
During the voir dire, the prosecutor addressed the potential

jurors as follows:

The testimony is going to show I think very 
shortly when the trial starts the victims in 
this case were white and, of course, Mr.
Darden, the defendant, is black. Can each of 
you tell me that you can try Mr. Darden as if 
he was white? Can you look at this defendant 
and assure me that you can try him as if he is 
white? Because the victims will be white.
Can you look at the defendant and even though 
he is black, can you try him as. if he was 
white?

R. 57, 115 (emphasis added).
Apart from the effect of reenforcing for the jury the 

different racial status of the defendant and the victims, the 
question presupposes disparate treatment for blacks and suggests 
that it requires a particular effort to treat a black defendant 
within the same standards of due process and impartiality due a 
white person. Even this would not be so disturbing had the 
prosecutor stopped there. But, as we shall see, his closing 
argument served forcefully to underline the negative implications 
of this voir dire questioning.

D. The Closing Arguments
Petitioner's counsel opened and closed the arguments prior 

to deliberation on guilt or innocence. Mr. Maloney, the less

8



experienced of the two, began. He conceded that the perpetrator 
of the murder and assaults was "a vicious animal." R. 717. He 
also expressed his personal opinion regarding the strength of the 
circumstantial evidence regarding the pistol: "It's not good
enough for me. I wouldn't do what you're being asked to do on
that, really I wouldn't___" R. 734. Finally, he expressed his
personal opinion regarding the state's failure to prove guilt 
beyond a reasonable doubt, R. 736, and concluded: "The question 
is, do they have enough evidence to kill that man, enough 
evidence? And X honestly do not think think they do. R. 
737-38.

Apart from these isolated errors committed by a fledgling
lawyer, the defense summation was unexceptionable. Mr. Maloney
recounted the state's evidence, stressed the virtual absence of
£rjy forensic evidence tying to the crime either Mr. Darden, his
car, or even the weapon found a day and one—half later near the
site of the wreck. He stressed the lack of any evidence tying

4
the gun, despite its unique marking and non-standard characte-

5 .ristics to Mr. Darden. Finally, he noted the discrepancies
between the descriptions of the assailant given by Mrs. Turman
and Mr. Arnold, on one hand, and that given by the passer-by who

3

3 At the time, Mr. Maloney had been licensed as an attorney for 
only four months.

4 The gun was marked "United States Property, Massachusetts, 
December 29, .38 special BRD." R. 809.

3 The gun had been rebored. See R. 778.

9



assisted Mr. Darden after the wreck: The victims agreed that 
their assailant was clean-shaven and wore a dark or dull—colored 
pullover with a band or ring at the neck; the passer-by described 
Mr. Darden as having a moustache and wearing a white shirt with 
buttons down the front.

The prosecution's argument was split between Mr. White and 
Mr. McDaniel. Mr. White argued first, marshalling the state's 
evidence, enumerating the elements of the offenses, and discuss­
ing the reliability of the identifications. R. 738-747. He 
concluded:

I am convinced, as convinced as I know I 
am standing before you today, that Willie 
Jasper Darden is a murderer, that he murdered 
Mr. Turman, that he robbed Mrs. Turman and 
that he shot to kill Phillip Arnold. I will 
be convinced of that the rest of my life.

R. 748.
At that point, the senior prosecutor, Mr. McDaniel, rose to 

complete the summation. It is only possible to understand the 
nature and effect of that argument by viewing it as a whole, 
rather than a disaggregated series of individually improper 
comments. Following on the heels of trial and arguments focusing 
on the reliability of the eyewitness identifications in the light 
of the weakness of the balance of the prosecution's case, 
McDaniel's argument was carefully crafted to make up for any 
deficiencies in the state's proof by distracting the jury from

10



the evidence. From start to finish, McDaniel interjected and 
emphasized the emotional, the irrelevant, and the impermissible.

First, he disclaimed emotional involvement in the case. R. 
749.- Then he took credit for the tactical choice of defense 
counsel in focusing on the failures of the Polk County Sheriff in 
investigating the case: "he has notes I gave him many years ago." 
Id. Having thus established his authority and credibility, he 
launched on his first theme:

But let me tell you something. As far as 
I am concerned, there should be another 
defendant in this courtroom, one more, and 
that is the division of corrections, the 
prisons. As far as I am concerned... this 
animal was on the public for one reason. 
Because the division of corrections turned him 
loose, lets him out, lets him out on the 
public. Can we expect him to stay in a prison 
when they go there? Can't we expect them to 
stay locked up once they go there? Do we know 
that they're going to be out on the public 
with guns, drinking?

*  *  *

He shouldn't be out of his cell unless he has 
a leash on him and a prison guard at the other 
end of that leash....
No, I wish that person or persons responsible 
for him being on the public was in the doorway 
instead of Mr. Turner. I pray that the person 
responsible for it would have been in that 
doorway and any other person responsible for 
it, I wish that he had been the one shot in 
the mouth. I wish that he had been the one 
shot in the neck, instead of the boy [Phillip 
Arnold].

Yes, there is another Defendant, but I 
regret that I know of no charges to place upon 
him, except the public condemnation of them, 
condemn them. Turn them loose to visit his



family ... that turns out his family is a girl 
friend in Tampa, ... his sponsor.

R. 749-51.
Having sounded his theme —  "Mr. Turman is dead because that 

unknown defendant we don't have in the courtroom allowed it. He 
is criminally negligent for allowing it." R. 752 McDaniel 
turned to his main point.

The Court will tell you at the . end of the 
argument in the -jury instructions at this 
point, you are merely to determine his 
innocence or guilt, nothing else whether he is 
guilty or innocent. And after you return that verdict of guilty of first degree murder ... 
then you will be asked at that time to go back 
and retire and advise the Court whether or not 
he gets the death sentence or whether he 
should get life.

That is an advisory opinion on your part, 
and it has nothing to do with this trial, and 
Mr. Maloney knows that. But ... I will 
guarantee you I will ask for the death. There 
is no question about it.

The second part of the trial I will 
request that you impose the death penalty. I 
will ask you to advise the Court to give him 
death. That’s the only way that I know that 
he is not going to get out on the public. It's 
the only way I know. It's the only way I can be sure of it. It's the only way that anybody 
can be sure of it now, because the people that 
turned him loose —  this man served his time 
and if this man served his time as the Court 
has sentenced him, that's fine. If he's 
rehabilitated, fine. But let him go home on 
furloughs, weekend passes —  not home, strike 
that, excuse me -- go over with his girl 
friend for the weekend, go shoot pool for the 
weekend, go sell his guns, or gun, for the 
weekend, go consume drink in the bars over the 
weekend.

12



R. 7 5 2 - 5 4 .

McDaniel then sounded his second theme:

Mr. Maloney said, well, sure he had an 
accident, ... but do you think he would admit 
that accident if he- wouldn't have had that 
fancy fingerprint [ ] to prove it? No, he 
wouldn't have admitted nothing.

I don't know, he [Darden] said on final 
argument I wouldn't lie, as God is my witness, 
as God is my witness, I wouldn't lie. Well 
let me tell you something: If I am ever over 
in that chair over there, facing life or 
death, life imprisonment or death, I guarantee 
you I will lie until my teeth fall out.

R. 754.
McDaniel turned briefly 

witness testimony. R. 756-57. 
the crime, R. 757, which he 
observations:

to the reliability of the eye- 
He then focused on the events of 
punctuated with the following

I wish [Mr. Turman] had had a shotgun in his 
hand when he walked in the back door and blown 
his face off. I wish that I could see him 
[Darden] sitting here with no face, blown away 
by a shotgun, but he didn't.... I wish 
someone had walked in the back door and blown 
his head off at that point. But he is lucky, 
the public unlucky, people are unlucky, it 
didn't happen.

R. 758-59.
But he [Darden] heard every word everybody 
said, and I assure you, if we hadn't been able 
to prove the accident, they would never have 
admitted it.

® There was no fingerprint evidence introduced in this case, 
whatsoever.

13



R. 7 6 4 .

There is one person on trial, not the 
Polk County Sheriff’s Office, not the Hills­
borough Sheriff's Office, but he and his 
fcegpers, the Division of Corrections.

R. 764-65.
But sometimes, it emotionally gets to me. For 
four days I saw that man sitting there —— 
calm, cool, calculating, smiling at the right 
time, until it came up time for his parole was 
in question, and then he goes to the stand 
with his handkerchief in his hand....

I don't cry for him ...
R. 765.

He's even got a driver's license. Why in 
the world does —  what in the world is a State 
prisoner doing with driver's license? I 
wonder if the public is paying for it.

R. 766.
Lie detector test. That's the red herring 
they would like to throw in. I don't believe 
anything he says....

R. 769-70.

McDaniel returned to the evidence, discussing the accident 
and eyewitness testimony again. R. 770—75. He then discussed 
the gun and the shooting, noting that four shots were fired. R. 
7 7 3 -7 5 . "And Mr. Darden saved one. Again, I wish he had used it 
on himself." R. 775. Of the accident: "I wish he had been killed 
in the accident, but he wasn't. Again, we are unlucky that time. 
Id.

McDaniel's peroration did not let up.

14



He stopped at one service station, he says, to 
get a wrecker in Plant City. That’s what he 
says, I don’t know that he stopped at any. 
What was he going to do with the wrecker when 
he got it? I guarantee you he was not going 
back to the scene of the accident until he had 
gotten home.

R. 777-78.
[D] on't forget what he has done according to 
those witnesses, to make every attempt to 
change his appearance from September the 8th, 
1973. The hair, the goatee, even the mous­
tache and the weight. The only thing he 
hasn't done that I know of is cut his throat.

R. 779.
And then he closed:

I'm going to ask you, in closing, that 
you consider the direct evidence, and as Mr. 
Maloney said, its good evidence, the best 
evidence, the direct evidence, the eyewitness 
considered as circumstantial evidence, 
surrounding that wreck, the time, the place, 
his color, clothes, the gun, where he went, 
leaving the scene of an accident and don't 
turn this man loose. I cannot help but wish 
that the Division of Corrections was sitting 
in the chair with him. Thank you.

R. 780-81.

There were two objections during the course of McDaniel's 
summation. The first occurred immediately after McDaniel 
referred to the defendant as "a criminal" and alleged that he 
had carried a gun when he returned home on furlough. R. 751. 
This was objected to as not based on the evidence. The judge 
merely deflected the issue, reminding the jury that they "are the 
judges of the evidence." Id.

15



«■>*

The second occurred later in the argument, "that's about the 
fifth time that he has commented he wished someone would shoot 
this man or that he would kill himself." R. 779. This degener­
ated into an exchange between Mr. Maloney and Mr. McDaniel about 
which side had less evidence. R. 779-80. The court's response 
was to overrule the objection and order counsel to proceed. R.
780.

The judge's instructions to the jury prior to the summations 
tended to make matters worse. He told the jurors that:

I am sure that none of the attorneys would 
intentionally misquote any evidence or mislead 
you in any way. They are all respected 
attorneys back in Polk County; they are all 
oersonal friends, I think, of mine; and I know 
each of them well. . ..[T]hey are permitted to 
argue the law to you. They are certainly permitted to argue the facts to you; so both 
will be involved. But they are not binding 
upon you.

Now, let me tell you what they are. They 
are a big help to you, or can be, These ^te 
men who are trained in the law or trained in 
trials, and their analysis of the testimony, 
their analysis of the issues, their comments 
upon the pertinence and the weight of the 
particular items of testimony can be extremely 
helpful to you....

Faced with this, Mr. Darden’s senior counsel, Mr. Goodwill, 
did the best he could to respond. Referring to White's and 
McDaniel's improper arguments, he noted particularly and "more 
importantly, the way they were said, the manner in which they 
were expressed...," R. 782, "the yelling and screaming and

16



r rrtEr r ar*

righteous indignation and get up and blow your face off," R. 801; 
"the yelling and screaming and the pushing and the shoving and 
the hitting with the stick, and the whole works." R. 802. And 
he admonished the jury: "He tries to win you or embarass you into 
a decision based on his argument, but not based on what came from 
that stand...." Id. See also R. 786, 787, 791, 794, and 804. 
Instead, he discussed the evidence and testimony at great length, 
R. 782-820, concluding: "You can’t prove him guilty on what Mr. 
McDaniel says, and by the same token, you can't find him innocent 
on what I say." R. 818.

2 . The Performance of Defense Counsel at Sentencing
The senior of the two assistant public defenders to repre­

sent petitioner, Raymond A. Goodwill, Esq., served as a public 
defender only part-time, two days per week. H.C. 273. Although he 
had tried three or four capital cases, H.C. 278-79, he had no 
experience in preparing a case for the separate, post-verdict 
sentencing trial provided by Florida's 1972 death sentencing 
statute. Co-counsel, Maloney, was just recently licensed to 
practice. See H.C. 132, 143. Ironically, the responsibilities of 
lead counsel fell largely upon him.

Counsel's preparation for the sentencing hearing consisted 
solely of "twenty or twenty-five minutes" of talking with the 
victim's widow during a "thirty or forty minute recess" between 
the announcement of the guilt verdict and the commencement of the 
sentencing proceeding. H.C. 373. Counsel waived opening argument 
to the jury, R. 893, offered no evidence, R. 892, and made only a

17



-rrr*«&v r s rw

brief, three or four-minute summation. R. 895-97. Maloney, the 
less experienced counsel did the summation; he began by telling 
the jury that he was "sure that you will find that Mr. Darden 
falls into just about every one of the aggravating circum­
stances___ " R. 895 (emphasis added).

Once counsel had completed this "presentation," the court, 
in the presence of the jury, invited Mr. Darden to speak. 
Speaking from counsel table, Mr. Darden said:

Ladies and gentlemen of the Jury, I was 
on the stand yesterday for some period of time 
giving my testimony[,] the best of my know­
ledge of what happened on that Saturday. I 
stand firm before you again today after being 
convicted, that what I told you on that stand 
was the truth. You have found an innocent man 
guilty of murder, something I has no knowledge 
about. You not only damaged me, you damaged 
my family, seven kids and a wife. That's all,
Your Honor.

^ 3 9 7_9 8> The jury returned a recommendation of death, but only 
by a divided vote. See Darden v. Wainwright, 699 F.2d 1031, 1041 
(11th Cir. 1983) (Clark, C.J., dissenting). The trial court 
imposed the death sentence, finding only two mitigating circum­
stances: that petitioner "is the father of seven children" and 
that he "repeatedly professed his complete innocence of the 
charge." A. R. 208.

Defense counsel knew at trial of information relevant to Mr. 
Darden's character and background. H.C. 885. For example, 
counsel received psychiatric and psychological evaluations

18



r.7*?jc r ^ r  «* w w »w w w ►rjHrfST' ww<

containing mitigating material. The psychiatric report stated 
that petitioner

could be called a [Schizoid-] personality, a 
man who has been socio- and economically 
deprived throughout his life. He had never 
known as a child, any mothering, as his Mother 
died at an early age and he was cared for by 
whatever relatives were available.

A .r . 27. A second psychiatric report contained a fuller treat­
ment of the circumstances of Mr. Darden's life from childhood. 
It indicated that he ran several businesses successfully, was 
well liked in the community, and was considered non-violent by 
his acquaintances. His intellectual functioning was evaluated as 
dull normal, with an I.Q. of 88. Report to Judge Dewell from H. 
Goldsmith, Ph.D. (January 14, 1974); see A.R. 151. In addition, 
petitioner's girlfriend would have testified that he was good,
kind, and non-violent to her and others. ^

Preparation by counsel would have yielded more. Mr. Darden 
was born in Greene County, North Carolina in 1933. His mother, 
the daughter of tenant farmers, was fifteen-years-old. His father 
was an auto mechanic with a third grade education. His mother 
died in childbirth, two years later, along with his infant 
brother. Both of his parents, like most black residents of that 
jjoj were but two generations removed from slavery.

The i nf ormat ion that follows is contained in the record of 
oetitioner's second habeas corpus proceeding, which is or will be 
before the Court on a petition for a writ of certiorari and a 
motion to consolidate.

19



Greene County is in an impoverished rural area of Eastern 
North Carolina with a 50% black population. It is primarily an 
agricultural community; tobacco is the basis of the local 
economy. When Mr. Darden was born, the local tobacco farmers 
still depended exclusively on the labor of their black tenants. 
These blacks were free only of the legal status of slavery; their 
lives were entirely dependent on the marginal existence available 
through seasonal labor in the tobacco fields. More than 70% of 
the farms in the county were worked by black tenants (affidavit 

' of William C. Harris) yet by the 1930's, blacks owned only 4% of 
the taxable wealth in the state. The average black family earned 
less than $1,000 annually^ The schools available to blacks held 
classes only during those brief respites from the seasonal 
tobacco industry. The high-school graduation rate for blacks 
during that period was four times less than that for whites. The 
average formal education for black adults in rural areas like 
Greene County was 2 1/2 years. The infant mortality rate in
Wilson, North Carolina, the closest city to the rural area in 
which Mr. Darden was raised, was 136 per 1,000, fourth highest of 
any city in the United States. The rate among the black popula­
tion was twice that of the white population.

As recounted by historian William C. Harris, the black 
residents of Greene County were "commonly referred too as 
'niggers'. When they were brought to court, they usually found 
themselves at the mercy of a hostile or indifferent white judge 
and jury ... black offenders were more severely penalized than

20



the crimes warranted___ Most of their crimes were minor theft,
frequently committed in order to survive." Mr. Darden's earlier 
experience with the criminal justice system consisted of a series 
of economic crimes committed in an attempt to Support himself and 
his family in an environment totally lacking in economic opportu­
nity for the average black. One early episode resulted in a four 
year prison sentence for forging a check for forty—eight dollars 
in order to buy food for his pregnant wife and himself.

Life in Greene County was an ordeal for blacks from which 
few escaped unscathed. "Willie, along with his contemporaries 
born in the 1 930's, faced a life of marginal existence in which 
there was little w.ork for much of the year, no hope that he could 
improve his social standing, and almost non-existent opportunity 
to acquire a high school education and advance into a career. 
(Harris affidavit).

Mr. Darden's early life was spent in several different 
homes. After his mother died when he was two, he was sent to 
live with his maternal grandparents. He returned home when his 
father remarried in 1 938 , but he was sent to a foster home when 
his stepmother abandoned the family. These tenant farmers 
orevented him from attending school, made him perform excessive 
farm chores, and failed to provide him clothing. He eventually 
stole in order to dress properly.

After several months with the foster family, Willie Darden 
was involved in several episodes of petty theivery. He was 
eventually caught attempting to pilfer a mailbox, for which he

21



was sent to the National School for Boys at the age of sixteen. 
Once there, he adamantly refused to return to this foster family.

The authorities at the School for BOys described him at the 
time as a simple, well-intentioned and cooperative youth who 
seemed inordinately obsessed with his father and extremely 
concerned that he had not heard from him since he was abandoned 
to the foster home. An evaluation conducted at the time states 
that Willie was very "anxious to reestablish the relationship ... 
between himself and his father," and that he constantly "des­
cribes his father in glowing terms and actually embroidered on 
fact when giving his history in order to present the father in 
the most favorable light." It is clear that the unexplained 
abandonment by his father crushed Willie emotionally and was a 
radical turning point in his transition from adolescence to 
adulthood.

Those who knew Willie Darden describe him as a kind, wise, 
and non—violent man, and express a unanimous disbelief that he 
could be capable of committing the crime with which he was 
charged. His former wife recalls him as a good man who never 
argued or fought with anyone. His son remembers their loving 
relationship and describes him as "the most amazing and inspira­
tional man I have ever met."

Counsel were aware of none of this. The reason is clear: 
They believed they "were fairly limited statutorily by what 
things were in the statutes as far as mitigation." H.C. 372. As 
Maloney testified:

22



... after a perusal of the mitigating 
circumstances in the Florida Statute 
9 21.141 [/] ... we reached the conclusionthat Mr. Darden did not qualify for any 
of the mitigating circumstances.

We were operating on the premise at 
that time that we were limited to those mitigating circumstances. At least I was 
completely unaware that any mitigating circumstance/ if relevant/ is admissible.

Something should have been offered 
in mitigation. In any capital case such 
as this, something can be offered m  
mitigation...

q . Would it be fair to say that you and 
co—counsel were using 921.141 —— I
believe it's subsection B, Mitigating 
Circumstances —  as being a closed shop? 
That that.was all you could consider in 
the way of mitigating circumstances and 
nothing outside the four corners of the 
statute?

A. Until the Supreme Court ruled in Gardner 
v. Florida, that was my opinion. _ And Gardner v.'"Florida considerably postdated 
this trial.

Q. Okay. But that was what you were all 
thinking on the day —

A. Yes, sir.
Q. —  on January 19th, 1974.
A. Yes. sir.

*  *  *  *

A. We certainly went through the mitigating circumstances in 921.141, and I believe 
we came to the conclusion that there were 
no mitigating circumstances and no 
evidence was presented.

23



w ' r r ^ w w w w w i ' w?x *w *tv • B W 'w w w b *1

H.C. 154-55; see also H.C. 245-46. Maloney later learned he was 
wrong: "Lockett is the first time that I found out from the
United States Supreme Court that mitigating circumstances were 
not limited to the enumerated mitigating circumstances." H.C. 
278.

II. COURSE OF PROCEEDINGS

The history of this case is tortuous. On direct appeal, the 
Florida Supreme Court treated the prosecutorial argument issue on 
the merits. It conceded the argument was improper but neverth­
eless affirmed because "[t]he law requires a new trial only in 
those cases in which it is reasonably evident that the remarks 
might have influenced the jury to reach a more severe verdict of
g u i l t__or in which the comment is unfair." Darden v. State,
329 So.2d 287, 289 (Fla. 1976). It found no unfairness here for 
three reasons: (1) in light of the defense argument, the
statements of prosecuting counsel ...do not seem unduly inflamma­
tory...," 329 So.2d at 290; (2) in light of the "heinous set of
crimes..." the arguments were "fair comment ... reasonably 
describing what happened and what should be done to the guilty 
party...," id. at 290-91 ; and (3) in light of "overwhelming 
eyewitness and circumstantial evidence" and "absolutely no 
mitigating circumstances," the remarks, "were not sufficient to

^ The court of appeals concluded that the "suggestion the Florida 
Supreme Court did not dispose of the issue on the merits is 
untenable." Darden, 699 F.2d at 1 034, a f f1 g, 513 F. Supp. at 
951-52.

24



deprive Appellant of a fair trial...." Id_. at 291. Two justices 
dissented.

In his brief before the Florida Supreme Court (pp. 28-35), 
Mr. Darden challenged the exclusion for cause of venireman 
Murphy. The argument was rejected by that court without discus­
sion. Id. at 289.

This Court granted certiorari, heard argument, and dismissed 
the writ as improvidently granted. Darden v. Florida, cert. 
granted, 429 U.S. 917 (1976), cert, dismissed, 430 O.S. 704 
(1977). On federal habeas corpus, the Magistrate recommended 
that the writ be granted on the grounds of prosecutorial miscon­
duct. The Magistrate also recommended that relief be granted due 
to the unconstitutional exclusion for cause of venireman Murphy. 
The district court disagreed on both issues and denied relief. 
Darden v. Wainwright, 513 F.Supp. 947 (M.D. Fla. 1981). A panel 
of the Eleventh Circuit affirmed, one judge dissenting. Darden, 
699 F.2d 1031 (11th Cir. 1983). Rehearing en banc was granted, 
and the district court was affirmed by an equally divided court. 
Darden, 708 F.2d 646 ( 11th Cir. 1983). On second rehearing, the 
en banc court reversed, granting relief on the Witherspoon claim. 
725 F.2d 1526 (11th Cir. 1985).

9 <rhe Court initially granted certiorari upon a petition that 
included the Witherspoon claim, see Darden v. Florida, 45 
U.S.L.W. 3356 (Nov. 9, 1976) , but subsequently limited the grant 
of certiorari to the issue of prejudicial prosecutorial summa­
tion. 429 U.S. 1036 ( 1977) .

25



This Court vacated and remanded for reconsideration in light 
of Wainwright v. Witt* _____ O.S. / 83 L.Ed.2d 841 (1985) . On 
remand, the en banc court denied relief, two judges dissenting. 
Darden, 767 F.2d 752 (11th Cir. 1985).

SUMMARY OF ARGUMENT

The closing arguments made by the prosecutors in this case 
have been condemned by virtually every judge who has looked at 
them. They have never been defended by the state as proper. These 
arguments flouted every rule of professional conduct recognized 
by the organized Bar. They were calculated to divert the jury's 
attention from the central factual issues in the case, especially 
the issue whether the prosecution's problematic identification 
evidence was sufficiently persausive to convict Mr. Darden. 
Crafted to evoke passion and inflame prejudice, these arguments 
violated Mr. Darden's most basic rights: to a fundamentally fair 
and reliable determination of his guilt or innocence and of the 
appropriate sentence.

"The actual impact of a particular practice on the judgment 
of jurors cannot always be fully determined. But this Court has 
left no doubt that the probability of deleterious effects on 
fundamental rights calls for close scrutiny." Estelle v. 
Williams, 425 U.S. 501, 504 (1976). Because the prosecution's 
improper arguments were designed and likely to affect the 
reliability of the factfinding process, they introduced more than 
a probability of actual prejudice. In such a case, the state

26



should be required to demonstrate beyond a reasonable doubt that 
the arguments were harmless, Chapman v. California, 386 U.S. 18 
(1967), —  if if asserts that they were. Here, the state has 
shown nothing of the sort. To the contrary, it appears only too 
likely that the prosecutor's arguments achieved the result they 
plainly sought: to tip the scales in favor of a verdict of 
guilt. Nor, on this record, can the arguments that strove 
improperly to emotionalize the determination to impose the death 
sentence be said to have had no effect. Caldwell v. Mississippi^ 
4 7 2 o.S. ___, 8'6 L:Ed. 2d 231 , 247 ( 1985). Accordingly, both the
conviction and the sentence must be reversed.

Reversal of the death sentence is required on two .other 
grounds: First, prospective juror Murphy was excluded solely on 
the basis of a single question and answer that disclosed strong 
scruples against the death penalty. This question, however, 
faj_]_ecj to inquire —  and the answer, therefore, failed to 
establish —  whether those scruples were so strong that they 
would substantially impair Mr. Murphy's performance as a fair and 
impartial juror or whether Mr. Murphy would be able to subordi­
nate those scruples to the law. Wainwright v. Witt, 469 U.S.

, 83 L.Ed.2d 841 (1985). Because his exclusion for cause was 
the result of a purely legal error, reversal is required on the 
face of the record.

Second, Mr. Darden was deprived of the effective assistance 
of counsel at the sentencing stage. In effect, he was left to 
face the jury alone: He made a short statement in mitigation at

27



the urging of the trial judge, but no other mitigating evidence 
was presented. This was because counsel failed entirely to 
investigate or prepare for the sentencing hearing until twenty 
minutes before it began. Had they done so, they could have 
presented relevant, available information concerning Mr. Darden's 
background and character. This mitigating information would have 
counteracted much of the prosecutor's improper and unsupported 
assertions and arguments. Because of counsel's failure, Mr. 
Darden's sentencing hearing was less an adversary proceeding than 
the sacrifice of an unaided and unshielded prisoner to the 
prosecutorial gladiator.

ARGUMENT
I THE PROSECUTION'S CALCULATED, UNPROFESSIONAL AND INFLAMMA­

TORY CLOSING ARGUMENT ROBBED THE DETERMINATION OF PETITION­
ER'S GUILT OF THE FUNDAMENTAL FAIRNESS REQUIRED BY DUE 
PROCESS AND DEPRIVED THE DETERMINATION OF SENTENCE OF THE 
RELIABILITY REQUIRED BY THE EIGHTH AMENDMENT________________

There is no dispute about the nature of the prosecution's 
conduct; it has received universal condemnation. The federal 
district court observed that: "Anyone attempting a text-book
illustration of a violation of the Code of Professional Respon­
sibility, Canon 7, EC 7-24, and DR 7—106(c)(4) could not possibly 
improve upon th[is] example." 513 F.Supp. at 955. The Florida 
Supreme Court acknowledged that "under ordinary circumstances 
[it] would constitute a violation of the Code of Professional 
Responsibility." 329 So.2d at 290. The majority of the court of 
appeals acknowledged that the argument "can only be described as

28



tasteless and unprofessional.../" 669 F.2d at 1036/ noting that 
it "contained personal opinions" in violation of the Code and 
that "the prosecutor's comments would have been reversible error 
in an appeal from a federal case." Id. at 1035-36. The district 
court described the argument as "a series of utterly tasteless 
and repulsive remarks...," "pointless," 513 F.Supp. at 955, and a 
"tirade." Id_. at 953. The dissenting justices in the Florida 
Supreme Court noted that the "remarks of the prosecutor in the 
case at bar can only be characterized as vituperative personal 
attacks upon the appellant and as appeals to passion and preju­
dice." 329 So.2d at 293. The federal magistrate referred to the 
"numerous instances of prejudicial prosecutorial argument as 
"improper, repeated, prejudicial." Magistrate-^ Report at 22., 
Even the state concedes: "No one has ever even weakly suggested 
that McDaniel's closing remarks were anything but improper...." 
513 F.Supp. at 952.

We show below that this extreme misconduct deprived peti­
tioner of fundamental fairness in the determination of his guilt 
or innocence and of reliability in the determination of his 
sentence. That being so, the ensuing prejudice is palpable. If 
a defendant is convicted and sentenced to death as a result of 
oroceed i ngs that are fundamentally unfair and unreliable, 
prejudice is presumed; the burden is properly cast on the state 
to show that there was none. But even if petitioner bore the 
burden, the circumstances and extent of this misconduct in the 
context of this case demonstrate prejudice.

29



In the sections that follow, we first discuss the standards 
that control analysis under the due process clause. We then 
consider the claim as to sentence in light of the eighth amen­
dment standards repeatedly reaffirmed by this Court. Finally, we 
assess the prejudice to Mr. Darden on the unique facts of this
case.

A. Mr. Darden Was Denied Fundamental Fairness in the 
Determination of his Guilt or Innocence

" [N]ot every trial error or infirmity which might call for 
application of supervisory powers correspondingly constitutes a 
•failure to observe the fundamental fairness essential to the 
very concept of justice.’" Donnelly v. De Christoforo,•416 U.S. 
637, 642 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236 
(1941)). But some do.

The relevant question ... inescapably imposes 
upon this Court an exercise of judgment upon 
the whole course of the proceedings in order 
to ascertain whether they offend those canons 
of decency and fairness which express the 
notions of justice of English-speaking peoples 
even toward those charged with the most 
heinous offenses.

Adamson v. California, 332 U.S. 46, 67-68 (1947) (Frankfurter,
J., concurring).

The Court is not left at large in this inquiry.

[S]tate criminal processes are not imaginary 
and theoretical schemes but actual systems 
bearing virtually every characteristic of the 
common—law system that has been developing 
contemporaneously in England and this country.

30



The question thus is whether given this kind 
of system a particular [rule] is fundamental 
—  whether, that is, [it] is necessary to an 
Anglo-American regime of ordered liberty."

Duncan v. Louisiana, 391 U.S. 145, 149-50 (1968); accord Johnson 
v. Louisiana, 406 O.S. 356, 372 n. 9 (1972) (Powell, J., concur­
ring) ("the focus is, as it should be, on the fundamentality of 
that element viewed in the context of the basic Anglo-American 
jurisprudential system common to the States."). The "better guide 
... is disclosed by 'the existing laws and practices in the 
Nation.'" Baldwin v. New York, 399 U.S. 66, 70 (1970) (quoting 
Duncan, 391 U.S. at 161).

On this score, there is no doubt. The calculated, inflam 
matory argument of the prosecution in this case did more than 
draw the universal condemnation of the courts below. It violated 
the specific prohibitions embodied in the law of every state and 
the District of Columbia, for each state has adopted either the 
Code of Professional Responsibility or the new ABA Model Rules of 
Professional Conduct (1983). The Code provides that:

In appearing in his professional capacity
before a tribunal, a lawyer shall not:
(1) State or allude to any matter that he 

has no reasonable basis to believe is 
relevant to the case....

(2) Assert his personal knowledge of the 
facts in issue, except when testifying 
as a witness.

(3) Assert his personal opinion as to the 
justness of a cause, as to the credibi­
lity of a witness, ... or as to the 
guilt or innocence of an accused....

31



DR 7-106(C). These prohibitions have been carried forward 
without change in the Model Rules, Rule 3.4(e). The ABA Stan­
dards for Criminal Justice (2d ed. 1980) provide:

(a) The prosecutor may argue all 
reasonable inferences from evidence in the 
record. It is unprofessional conduct for the 
prosecutor intentionally to misstate the 
evidence or mislead the jury as to the 
inferences it might draw.

(b) It is unprofessional conduct for the 
prosecutor to express his or her personal 
belief or opinion as to the truth or falsity 
of any testimony or evidence or the guilt of 
the defendant.
v (c) The prosecutor should not use 
arguments calculated to inflame the passions 
or prejudices of the jury.

(d) The prosecutor should refrain from 
argument which would divert the jury from its 
duty to decide the case on the evidence, by 
injecting issues broader than the guilt or 
innocence of the accused under the controlling 
law, or by making predictions of the conse­
quences of the jury's verdict.

(e) It is the responsibility of the 
court to ensure that final argument to the 
jury is kept within proper, accepted bounds.

10
Id. § 3-5.8.

The prosecutor in this case flouted each and every one of 
these proscriptions: He interjected irrelevant issues such as the 
culpability of the prison system; he asserted personal opinions

^  Identical restrictions apply on the conduct of the defense. Id_. , 
§ 4-7.8.

32



and beliefs regarding the veracity of facts stated by Mr. Darden 
in his sworn testimony and not rebutted by any evidence in the 
case; he expressed a personal opinion of Mr. Darden's guilt and 
repeatedly asserted his personal opinion that Mr.-Darden was 
lying. Moreover, his entire argument was calculated to inject 
into the trial issues broader than guilt or innocence: the
appropriateness of the death penalty (which he argued extensively 
at the guilt/innocence stage after expressly acknowledgeing that 
it was not an issue at that stage) ; the public misfortune that 
Mr. Darden had not yet been killed by a shotgun, automobile 
accident, or suicide; the culpability of the prison system; Mr. 
Darden's culpability for having a driver's license and a girl­
friend; and the need to execute Mr. Darden to insure that he did 
not get out and commit other crimes. McDaniel repeatedly and 
shrewdly appealed to the passions and prejudices of the jury. 
All of this served only to divert the jury from what it should 
have focused on at the guilt/innocence stage: the evidence, and
whether Mr. Darden was in fact the guilty man.

The Code, the Model Rules, and the A3A Standards are not, 
even by dint of the universality of the consensus they express, 
ipso facto incorporated into the due process clause. But, as has 
been expressed elsewhere at greater length, neither are they the 
expression of a mere ethical nicety. Rather, as explained in the

11 Brief of a Group of American Law School Teachers of Professional Responsibility Amici Curiae in Support of the Petition for 
Certiorari in Tucker v^ Kemp, No. 85-5496, filed October 28, 
1984.

33



12
ethical considerations accompanying the rule, they serve as a 
necessary concomraitant to the principle that: "In order to bring 
about just and informed decisions, evidentiary and procedural 

• rules have been established by tribunals to permit the inclusion 
of relevant evidence and argument and the exclusion of all other 
considerations." EC 7-24. "Rules of evidence and procedure are 
designed to lead to just decisions and are part of the framework 
of the law...; and a lawyer should not by subterfuge put before 
a jury matters which it cannot properly consider." EC 7-25.

These concerns mirror directly the concerns of the due 
process clause. "Court proceedings are held for the solemn 
purposes o.f endeavoring to ascertain the truth which is the sine 
qua non of a fair trial." Estes v. Texas, 381 U.S. 532, 540 
( 1965) . "This Court has declared that one accused of crime is 
entitled to have his guilt or innocence determined solely on the 
basis of the evidence introduced at trial, and not on grounds of 
... other circumstances not addressed as proof at trail." Taylor 
v. Kentucky, 436 U.S. 478 , 487 ( 1 978); accord Estelle v.
Williams, 425 U.S. 501, 503 (1976).

The constitutional vice of the arguments exhibited here is 
orecisely the same as the ethical one: "the focus of the trial, 
and the attention for the participants therein, are diverted from 
the ultimate question of guilt or innocence that should be the

12 Although"[t]he ethical considerations are aspirational in 
character...," Code of Professional Responsibility, Preamble and 
Preliminary Statement at 1, they also express "the reasons 
underlying these standards." Id. at n. 7.

34



central concern of a criminal proceeding." Stone v. PoweU, 428 
U.S. 465, 489-90 (1976). • Arguments that inject passion and
prejudice, inflame the jury, invoke prosecutorial position and 
expertise to preempt determination of the credibility of wit­
nesses and the truthfulness of evidence "deflect [] the truthfind­
ing process...." Id̂ _ at 490. Similarly, arguments about the 
mistakes of the prison system or the parole board, the appropri­
ateness of the death penalty, and the defendant’s purported 
future dangerousness have no place at the guilt/innocence stage; 
"it interjects irrelevant considerations into the factfinding 
process, diverting the jury’s attention from the central issue of 
whether the State has satisfied its burden of proving beyond a 
reasonable doubt that the defendant is guilty--- " Beck v^
Alabama, 447 U.S. 625, 642 (1980).

The universal consensus of the organized Bar, adopted as the 
law of each of the fifty states and the District of Columbia, 
shows that prosecutorial misconduct of these kinds threatens the 
"just and informed decisions" necessary to our system of truth-

13 In Karris v. State, 414 So. 2d 557 (Fla. 3d DCA 1982), a case much like tms o n e T  an eyewitness identified tbe^fendantas 
twice having robbed a laundromat. The defendant testified that 
he had not been in the laundromat on either date. The prosecutor 
made referrences to the rampage of crime m  the community and 
expressed his personal belief in the defendant s guilt. The 
District Court of Appeals reversed the conviction. It is the 
responsibility of the prosecutor to seek justice, not merely to 
convict. That responsibility will be more nearly met when the 
iurv is permitted to reach a verdict on the merits without 
counsel indulging in appeals to sympathy, bias, passion, or 
prejudice." Id_. at 558.

35



That consensus is persuasive evidence offinding. See EC 7-24. 
the meaning of due process in our system.

This conclusion is buttressed by the decisions of this 
Court. In Donnelly v. De Christoforo, the Court phrased the 
inquiry as whether "a prosecutor's remark ... so infected the 
trial with unfairness as to make the resulting conviction a 
denial of due process." 416 O.S. at 643. On the basis of "an 
examination of the entire proceedings...," id., the Court conclu­
ded that it did not. It premised, that conclusion on three 
factors.14 First, the remark in Donnelly was "an ambiguous
one___ - id. at 645. Second, it "was but one moment in an

. extended trial--- " Id. Third, it "was followed by specific
disapproving instructions." Id.

"Here, in contrast, the prosecutor's remarks were quite 
focused, unambiguous, and strong." Caldwell v. Mississippi, 472 
U.S. , 86 L.Ed.2d 231, 246 (1985). They were woven throughout 
the whole fabric of the prosecutor's summation. Unlike Donnelly, 
there was no curative instruction. Although the trial judge in 
Mr. Darden's case did not go quite as far in endorsing the

1 4 "which the 
... as toThe Donnelly Court first distinguished the^case in 

prosecutor' s remarks so prejudiced a specific right amount to a denial of that right...,'" 416 U.S. at 643 , m  
determining to apply the more general standard of due process.
Id .

>jhere were instructions to the jury that it should consider only 
the evidence. See R. 824, 862, & 864. And there had been a warninq before the“summation that arguments are not evidence. But 
there was no curative instruction. There were no instructions 
after the summations either that the prosecutors had erred or 
that arguments are not evidence.

36



improper comment as did the judge in Caldwell, 86 L.Ed.2d at
243/ he came close. He both endorsed the lawyers' summations

16generally beforehand and brushed aside or overruled the objecti­
ons to the prosecutor's argument, thus effectively indicating
"to the jury that the remarks were proper---" See Caldwell, 86
L.Ed.2d at 243.

In Donnelly, the Court also noted that "closing arguments 
... are seldom carefully constructed in toto before the event; 
improvisation frequently results in syntax left imperfect and 
meaning less than crystal clear." 416 U.S. at 646-47. Here, m  
contrast, the meaning was crystal clear. The offending comments 
were not limited to a single, isolated remark but rang out 
recurrrent themes central to the summation.

Indeed, the very nature of these improper comments invok­
ing irrelevant issues designed to inflame the jury and motivate 
it to convict the defendant —  point unerringly to the conclusion 
that the prosecutor employed "improper methods calculated to 
produce a wrongful conviction...." Berger v. United States, 295 
U.S. 78 , 88 ( 1935). There is no other explanation for the fact

16 The trial judge had admonished the jury before closing argument 
that it could rely on the expertise and experience of counsel and 
that, therefore, their views on the evidence would be very 
helpful. R. 713-14. The prosecutors took advantage of this and 
asked the jury to accept their personal beliefs of Mr. Darden's 
untruthful ness and guilt.

17 The Donnelly Court acknowledged that "these general observations 
in no way justify prosecutorial misconduct," id. at 647 , but 
instead merely served to show that it was not necessarily true 
that the jury had drawn the impermissible inference from the 
prosecutor's ambiguous remark. Id.



that McDaniel focused on the need for the death sentence in his 
arguments at the guilt/innocence stage of the trial. As the 
district court found: "It is apparent in reading the arguments in 
their entirety ... that the prosecutor had a dual purpose in mind 
when he attacked the Division of Corrections..., he was also 
making, in effect, his principal argument in support of the death 
penalty." Darden, 513 F. Supp. at 953. "This conclusion is 
buttressed by the fact that, at the conclusion of the penalty 
phase of the trial, the prosecutor's argument to the jury is 
contained on a single page of transcript." ld_. at 953 n. 10. 
Yet, at the guilt/innocence stage, "the central issue" was 
whether Mr. Darden was the guilty man, "whether the State ha[d] 
satisfied its burden of proving beyond a reasonable doubt that 
the defendant [wa]s guilty of a capital crime." Beck, 447 U.S. 
at 642 (emphasis added) .

Given that, the prosecutorial arguments prohibited by the 
Code, the Model Rules, and the ABA Standards —  and exhibited in 

case — — serve only to pervert and distort the truthfinding 
process, it is wholly inappropriate to require the defendant to 
prove that he was prejudiced by them. "Prejudice in these 
circumstances is so likely that case by case inquiry into 
orejudice is not worth the cost. ... Moreover, such circum­
stances involve impairments ... that are easy to identify and, 
for that reason and because the prosecution is directly respon­
sible, easy for the government to prevent." Strickland v. 
Washington, ___ U.S. ___, 80 L.Ed.2d 674, 696 (1984). "When the

38



prosecutor's conduct is considered to have transgressed the basic
principles of fair play embodied in the due process clause... the
standard is strict indeed." Kyle v. United States, 297 F.2d 507,

18
513 (2d Cir. 1961) (per Friendly, C.J.). Such "constitutional 
error, in illegally admitting highly prejudicial evidence or 
comments, casts on someone other than the person prejudiced by it 
the burden to show that it was harmless." Chapman v. California^ 
386 U.S. 18, 24 (1967).

This conclusion is corroborated by the Court's recent 
decision in Caldwell. The Court found that the specific comments 
at issue in that case "so affect[ed] the fundamental fairness of 
ti\e sentencing proceeding as to violate the Eighth Amendment." 86 
L . Ed. 2d at 246 . In reaching that conclusion, it observed: 
"Because we cannot say that this effort had no effect on the 
sentencing decision, that decision does not meet the standard of 
reliability that the Eighth Amendment requires." Id_. at 247

18 Judge Friendly noted that:
The conclusion we draw... is that the standard of 
how serious the probable effect of an act or 
omission at a criminal trial must be in order to 
obtain the reversal... is in some degree a 
function of the gravity of the act or omisssion; 
the strictness of the application of the harmless 
error standard seems somewhat to vary, and its 
reciprocal, the required showing of prejudice, to 
vary inversely, with the degree to which the 
conduct of the trial has violated basic concepts 
of fair play.

297 F.2d at 514. On this basis, Judge Friendly concluded that for deliberate prosecutorial misconduct, as is true in Mr. 
Darden's case, the showing of prejudice required should be at its 
nadir and the harmless error rule should apply. Id_. at 514-15

39



convictions obtained by(emphasis added). By the same token, 
such fundamentally unfair proceedings must be reversed: "To
insure that the death penalty is indeed imposed on the basis of 
•reason rather than caprice or emotion,' we have invalidated 
procedural rules that tended to diminish the reliability of the 
sentencing determination. The same reasoning must apply to rules 
that diminish the reliability of the guilt determination." Beck, 
447 U.S. at 638 (quoting Gardner v. Florida, 430 U.S. 349, 358 
(1978)) (footnote omitted).

3 . Mr. Darden Was Denied Reliability in the Determination 
his oi Sentence

The effect of McDaniel's impermissible arguments on sentenc­
ing must also be considered. For as the district court found, 
this was his argument on sentencing; the prosecutor made no other 
argument to speak of. 513 F.Supp. at 953 and n. 10.

The effect of his argument was to inflame the jury, to evoke 
its passions and invoke its prejudices, and to lead it to impose 
the death penalty for impermissible reasons. McDaniel repeated­
ly wished that Mr. Daraden had killed himself, slit his own 
throat, shot himself, or wrapped himself around the pole in the 
automobile accident. He referred to him as an animal and as 
needing "a leash on him and a guard at the other end of that 
leash." R. 750. He asked the jury to strike a blow at the 
correctional system responsible for Mr. Darden's furlough and 
urged his personal opinion that its irresponsibility required the

40



death sentence: "That’s the only way that I know that he is not
going to get out on the public. It’s the only way I know. It's 
the only way I can be sure of it." R.  753. He did not fail to 
invoke race, noting the description of the assailant as "the 
colored male..., R.  762, and closing with the "circumstantial 
evidence, surrounding that wreck, the time, the place, his 

— color...." R. 780.
In making these arguments, McDaniel violated each relevant 

provision of the Code and the ABA Standards. He argued matters 
that he had "no reasonable basis to believe ... relevant and 
that were "not... supported by admissible evidence." DR 7-106(C) 
(1). He asserted his personal knowledge of these "facts", which 
he had thus improperly put in issue. Id_., subsection (3). He 
asserted his personal opinion oji the justness of the death 
sentence in this case. Id., subsection (4). He used argument 
"calculated to inflame the passions or prejudices of the jury." 
ABA Standards S 3-5.8(c). And he "ma[de] predictions of the 
consequences of the jury's verdict" when that question was not 
open to consideration under the applicable sentencing law. See 
id., subsection (d).

In violating these ethical proscriptions and in making these 
impermissible arguments, McDaniel deprived Mr. Darden of a trial 
that satisfied the "heightened 'need for reliability in the 
determination that death is the appropriate punishment in a 
specific case...,'" Caldwell, 86 L.Ed.2d at 246 (quoting Woodson 
v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion)),

41



See , e .g. ,which has been a repeated concern of this Court 
ral ifornia v » Ramos, 463 U.S. 992, 998-99 (1983). A sentence of 
death obtained in this manner cannot be countenanced without 
disregarding the "vital importance to the defendant and the 
community that any decision to impose the death sentence be, and 
appear to be, based on reason rather than caprice or emotion." 
Gardner, 430 U.S. at 358. The arguments used in this case were 
(to invert Justice O ’Connor's observation) "extraordinary 
measures to ensure that the prisoner to be executed is afforded 
process that will guarantee, as much as is humanly possible, that 
the sentence was ... imposed out of whim, passion, prejudice, or 
mistake." Eddings v. Oklahoma, 455 U.S. 104, 118 (1982)(O’Connor, 
j., concurring).

Under these decisions, an exacting scrutiny is demanded of 
the process by which death is imposed. As Judge Friendly noted in
K^le:

[T]he pans contain weights and counterweights 
other than the interest in a perfect trial.
Sometimes only a small showing of preducice, 
or none, is demanded because that interest is 
reinforced by the necessity that "The adminis­
tration of justice must not only be above 
reproach, it must also be beyond the suspicion 
of reproach," ... and by the teaching of experience that mere admonitions are insuffi­
cient to prevent repetition of abuse.

297 F.2d at 514 (quoting People v. Savvides, 1 N.Y. 2d 554, 154 
N.Y.S. 2d 885, 136 N.E. 2d 853 (1956) (per Fuld, J.)). The Court 
recognized this point in its decision in Caldwell just last

42



Term, and demanded that we be able to say that the improper
argument "had no effect on the sentencing decision--- " 86 L.Ed.
2d at 247. Especially in light of the persistence of unchecked 
prosecutorial misconduct of this sort, see Brief of a Group of 
American Law Teachers of Professional Responsibility as Amici 
Curiae in Tucker v. Kemp, No. 85-5496, at 10-12, it is clear that 
Caldwell struck the correct balance. Accordingly, this death 
sentence must be reversed.

C. * Although Mr. Darden Is Entitled to Relief under the-
Harmless Error Doctrine, He Suffered Actual__a n?_
Substantial prejudice

The magistrate's asessment of the effect of McDaniel s 
argument is difficult to fault.

The case against Darden was not a weak case, 
but it did depend on the jury's determination 
of the credibility of Darden's alibi testimony 
as against. Qthe eye-witness testimony of the 
victims.[iy] All attacks upon Darden which 
would affect his credibility in the minds of 
the jurors or prejudice them against him would 
tend to discredit him and his testimony.
Defense counsel's objection to the prosecu­
tor's argument was late and tentative. The 
trial judge overruled the objection thereby 
making it appear that the argument could be 
properly considered by the jury.

The question which then must be asked is:
In the context of the entire trial did the

 ̂ state trial judge also recognized that the prosecution's case
on the issue of the identification of Mr. Darden as the killer 
was open to doubt. No other meaning can be ascribed to his 
finding Mr. Darden's repeated protestations of "complete inno­
cence" as a mitigating factor. If guilt were clear, a defendant's 
protestations of innocence would hardly be deemed mitigating; 
they would more likely be interpreted as defiance.

43



prosecutor's improper arguments either have a 
substantial influence on the jury's determina­
tion of guilt, or is there grave doubt what 
influence the argument did have on the jury?

Magistrate's Report at 22.
Having articulated the proper standard under Donnelly and 

closely presaged this Court's later formulation in Caldwell, the 
magistrate then considered the trial as a whole.

Petitioner's trial counsel put in issue the 
credibility of the victim's identification by 
cross-examination and proper jury argument. 
Darden's testimony at trial included a denial 
of the offenses, and of [sic] an alibi, 
testimony which "appeared on its face to be 
sincerity." (Trial Judge's Findings of Fact 
for Sentence).

In the context of the emotionally charged 
trial of Darden, a black man, accused of 
robbery, the brutal murder of a white man, the repeated shooting of a defenseless white 
teenager and vile sexual advances on a white 
woman, I have more than grave doubts that the 
improper^ repeated, prejudicial argument of 
the prosecution did not affect the jury in its 
deliberation. I am convinced that the jury deliberation was substantially influenced by 
the improper argument a nd that the jury was 
prejudiced against Darden by the argument.

Magistrate's Report on 22-23 (emphasis added).
The magistrate was correct. The ordinary problems of eyewit-

20ness identification aside, cross—racial identification, as in

There can be no reasonable doubt that inaccurate 
eyewitness testimony may be one of the most 
prejudicial features of a criminal trial. Juries 
naturally desirous to punish a vicious crime, may 
well be unschooled in the effects that the subtle 
compoud of suggestion, anxiety, and forgetfulness

44



this case, is the least reliable. Barkowitz and Brigham, Reco^nJ^ 
tion of Faces: Own Race Bias, Incentive, and Time Delag, 12
journal of Applied Social Psychology, 4:255 (1982); Brigham and
Maass, Accuracy of Eyewitness Identifications in a Field Setting., 
42 Journal of Personality and Social Psychology 673 (1982);
Yarmey, THE PSYCHOLOGY OF EYEWITNESS TESTIMONY 130-35 (1970); 
Note, Did Your Eyes Deceive You? Expert Psychological Testimony 
on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 
969, 982 (1977). When that cross-racial identification is
subject to legitimate challenge as influenced by suggestive 
procedures, the prosecutor's impermissible attempts in argument 
either to bolster the identification or to obscure the issue 
cannot be discounted as unimportant or insubstantial.

McDaniel certainly did not think so. No prosecutor would 
risk reversal by engaging in such a calculated and extended 
calvalcade of unprofessional comments unless he felt unsure of 
his evidence and uncertain of a verdict. Again, this is not a

in the face of the need to recall often has on witnesses. Accordingly, doubts over the strength 
of the evidence of a defendant's guilt may be 
resolved on the basis of the eyewitness' seeming 
certainty when he points to the defendant and 
exclaims with conviction that veils all doubt, 
"[T]hat's the man!"

Kampshoff v. Smith, 698 F. 2d 581, 585 (2d Cir. 1983).
21 In Kampshoff, supra n.20, the eye witness^ identification was 

impermissibly tainted by the fact that the witness saw a televi­
sion broadcast of petitioner's picture. Here Mr. Arnold had seen 
newspaper accounts of Mr. Darden's arrest and Mrs. Turman first 
saw and identified Mr. Darden in a courtroom in which he was the
only black.

45



case of an isolated or impromptu remark that might have harmed 
the defendant; this was a deliberate, internally coherent 
diatribe that repeated and intertwined three basic, impermissible 
themes. It ended in a care'fully orchestrated crescendo affirming 
the— reliability of the eyewitness identification on the basis of 
race and the need to convict both the defendant and the Depart­
ment of Corrections. "Courts must do the best they can to 
evaluate the likely effects of a particular procedure, based on 
reason, principle, and common human experience." Estelle 
Williams, 425 U.S. at 504. Common sense indicates that there is 
no reason a senior, experienced prosecutor (see R. 749) would 
employ such impermissible techniques except to prejudice the jury 
and bolster a sagging case.

The courts below relied instead on various technical, 
"contextual" considerations in concluding that there was never­
theless no harm . to the defendant. Their reasoning does not 
withstand scrutiny. For example, both the Florida Supreme Court 
and the district court relied heavily on the concept of invited 
error. The Florida court felt that the prosecutor’s use of the 
term "animal" and the repeated expressions of his wish that the 
defendant had been shot or had killed himself were "invited" by 
defense counsel's concession that the assailant was an animal. 
While it is entirely unclear how this statement by the defense 
"invited" either the death wish statements or the other impermis­
sible prosecutorial arguments, it is at least "[c]lear [that] two 
improper arguments —  two apparent wrongs do not make for a

46



United States v. Young, 470 U.S. ___, 84 L.Ed.2dright result."
1 , 9 (1985).

Similarly, the district court asserted that the extensive 
and repeated expressions by both prosecutors of their personal 
beliefs that Mr. Darden was a liar, that he was guilty, and that 
his death was the necessary response to the irresponsibility of 
the Department of Corrections were somehow invited by the two 
relatively minor expressions of personal opinion by Mr. Maloney. 
513 F.Supp. at 955. "Reviewing courts ought not to be put in the 
position of weighing which of two inappropriate arguments was the 
lesser." Young, 84 L.Ed.2d at 11. Nevertheless, it cannot fairly 
be said that two inappropriate remarks by a young defense counsel 
made in the throes of argument that expressed a personal opinion 
about the sufficiency and weight of the evidence are the equiva­
lent of —  and will carry the same weight with the jury as 
numerous, repeated, deliberate comments of a senior prosecutor 
expressing personal opinions about guilt and credibility. Indeed,

is apparently the rule both in Florida and many other
23 . .jurisdictions that the expression of personal opinion regarding

22 See, e.g., Roundtree v. State, 229 So.2d 281 (1st DCA 1969), app. 
"dismissed, 242 So.'2d 136’('Fli. 1970); Coleman v. State, 215 So. 2d 
98 (Fla".""4th DCA 1968).

23 "Though prohibiting the expression of a personal conviction as to 
defendant's guilt, courts have accepted statements offerred as a 
personal conclusion as to the strength of the evidence." Y. 
Kamisar, W. LaFave, & J. Israel, MODERN CRIMINAL PROCEDURE 1450 
(5th ed. 1980); see also Vess, Walking a Tightrope; A Survey of 
Limitations on the Prosecutor 1s"Closing Argument, 64 J.Crim.L. & 
Cl TT, 45-46 ( 19 7 3) ; Annotation, 88 A.L.R.3d 449 ( 1978).

47



the weight of the evidence, as distinct from guilt or innocence, 
is permissible»

According to the analysis of the district court, the 
argument by Maloney that the evidence was not enough "to kill 
that man [Darden,]" made at the end of his summation, R. 737, 
opened the door to the prosecutor’s arguments for the death 
penalty. 513 F.Supp. at 953-54, The problem with that analysis is 
threefold. First, at most, it invited the prosecutor to respond
_as he did in part —  that the question of sentence would be
dealt with later and that only guilt or innocence was at issue at 
that stage. Second, even if one assumes that it also invited the 
prosecutor to remark that he would seek the death penalty at the 
appropriate time, it certainly did not invite him to make his 
entire sentencing argument at the guilt/i nnocence stage as the 
district court found he did. 513 F.Supp. at 953 & n. 10. Third, 
the judge had already ruled at the start of Maloney's summation 
that the identical comment was proper. R. 730. As Young makes 
c]_ear, the primary responsibility for controlling improper 
argument lies with the trial judge. 84 L.Ed.2d at 11. Here it was 
the trial judge who allowed the escalating juggernaut of improper 
argument to get started. Mr. Darden should not pay for that with 
his life.

The Florida Supreme Court relied on two other considerations 
in finding no error: "the totality of the record ... in these 
uniquely vicious crimes..." and the "overwhelming eyewitness and 
circumstantial evidence." 329 So.2d at 290 , 291 . At best,

48



however, the heinous nature of the crime excused only the 
-animal" comments. The strength of the eyewitness testimony was 
the very thing the prosecutor was seeking to bolster by impermis­
sible argument. Neither of these considerations can establish 
-harmless error ... in this particular case." 329 So.2d at 290.

Finally, the lower federal courts relied on one more 
technical argument: "the Court instructed the jury on two
occasions that the argument of counsel was not evidence---" 699
F.2d at 1036 (quoting 513 F.Supp. at 958). In fact, there was one 
such instruction, but it came before the prejudicial summation. 
See nn. 15-16 supra. Afterward, the court gave no instructions 
touching the question of arguments; it did tell the jury during 
the course of a lengthy charge that it should consider only the 
evidence. But that was too little, much too late. Compare 
Caldwell, 86 L.Ed.2d at 249, 252 (Rehnquist, J., dissenting).

Recent decisions of the Eleventh Circuit would require that
a defendant show "a reasonable probability that, but for [the
improper prosecutorial] arguments, the death penalty would not
have been given." Brooks v. Kemp, 762 F. 2d 1 383, 1413 ( 1 1th Cir.

2 41 985) (en banc). They would apply this standard even when the 
court "cannot conclude that these few improper remarks had no 
prejudicial effect on the jury...," if the court is "satisfied

24 Accord Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985) (en banc); 
Tucker v. Kemo, 762~F.2d 1480 (11th Cir. 1985)(en banc); Tucker 
v. Kemo, .2d 1496 (11th Cir. 1985) (en banc).

49



th.t the prejudice was nor severe.- M .  at 1415. Putting aside 
the question whether these decisions survive Caldwell, their 
standard would not control Mr. Darden's case; here, the improper 
remarks were not -few” nor was the prejudice less than -severe.- 
Here, the remarks were calculated to obscure the central issues 
and did so, to Mr. Darden's actual and substantial prejudice. It 
is difficult to imagine a more egregious and deliberate closing 
argument than that in this case. The prosecutor's incendiary 
argument was tossed into the powder keg of a black/white killing, 
with sexual advances on the victim's widow, where the primary 
factual question was whether the police had arrested the right 
-colored male.- Because the extensive improper remarks were of a 
sort calculated to interfere with the reliability of the gury's 
determination, -we cannot say that this effort had no effect...," 
Caldwell, 86 L.Ed.2d at 247. Petitioner's conviction and sentence
of death must be reversed.

II.

• u *. tjj ,.1. dfiQ U S  i 83 L. Ed. 2d 841 ( 1985)/In Wainwright v. Witt, 469 u.s. --
this Court modified the test of Witherspoon v. Illinois. 391 
D.S. 510 (1968), which governs the exclusion of prospective
jurors in capital cases on the basis of their views about 
capital punishment. The Court was careful to state, however, 
that it -adhere[d] to the essential balance struck by the wither^

50



spoon decision." 83 L.Ed.2d at 852 n.5. That 'essential 
balance" prohibits the exclusion (or cause of 'jurors who, though 
opposed to capital punishment, will nevertheless conscientiously 
apply the law to the facts adduced at trial.' Id. at 850. In 
other words, opposition to capital punishment alone is not a 
sufficient basis for disqualification. Something more must be

shown.
To be sure, Witt did modify the Witherspoon test as 

to precisely what more must be shown. Applying the standard of 
Adams v. Texas, 448 U.S. 38 (1980), the Court held as follows:

[Al juror may not be challenged for cause 
based on his views about capital punishment 
unless those views would prevent or substan- 
1-4 ally impair the performance o t m s  auties aŝ  
a juror in accordance with his instruction^ 
and his oath. .-

83 L.Ed.2d at 849 (emphasis in original) (quoting Adams, 443 U.S. 
at 45); 83 L.Ed.2d at 851-52. But in the absence of the showing 
required by Witt, a venire member may not be excluded simply 
because he holds strong views against capital punishment.

Measured by these principles, the exclusion for cause of 
venireman Murphy at petitioner's trial cannot be upheld. For 
Murphy was excused solely on the basis of the following question
and answer:

25 witt also reiterates that, "(a]s with any other trial situationWitt also reiterates that, "[a]s with any otner criai sirud 
^E£7e an adversary wishes to exclude a juror because of oias, 
it is the adversary seeking exclusion who must demonstr. 
through questioning, that the potential juror lacks impart 
ity." 83 L.Ed.2d at 851

ate , 
impartial-

51



THE COURT: Do you have any moral or religious, 
conscientious moral or religious principles in 
opposition to the death penalty so strong 
that you would be unable without violating 
your own principles to vote to recommend a 
death penalty regardless of the facts?
MR. MURPHY: Yes, I have.

R . .165 (emphasis added). The trial judge never determined 
whether or not Murphy*s "own principles" relating to capital 
punishment "would prevent or substantially impair the performance 
of his duties as a juror in accordance with his instructions 
and his oath." Murphy was never once questioned as to whether 
he could set aside his personal beliefs or private principles and 
perform "his duties as a juror in accordance with his instruc­
tions and his oath." Instead, he was summarily excluded solely 
because of his affirmative answer to a single question demon­
strating only that he held strong principles in opposition to 
capital punishment —  principles which he would have to subor­
dinate if he were to serve as a juror. Whether or not he could 
in fact subordinate those principles and serve was never deter­
mined .

The only way to uphold Murphy's exclusion would be to assume 
that any individual who has strong principles against capital 
punishment would automatically be unable to restrain those prin­
ciples and would therefore be "substantially impaired" in the 
performance of his duties as a juror. But that is not the law.

52



The very essence of the Witherspoon balance, adhered to in Witt, 
cries out to the contrary:

It is entirely possible, of course, that 
even a juror who believes that capital punish­
ment should never be inflicted and who is 
irrevocably committed to its abolition could 
nonetheless subordinate his personal views to 
what he perceived to be his duty to abide by 
his oath as a juror and to obey the law of the 
State.

Witherspoon v. Illinois, 391 U.S. at 514-15 n.7. Adams v. Tex_as, 
the decision upon which Witt is based,- makes the same controlling
point:

[I]t is entirely possible that a person who 
has a "fixed opinion against" or who does 
not "believe in" capital punishment might 
nevertheless be perfectly able as a juror to 
abide by existing law —— to follow conscien­
tiously the instructions of a trial judge and 
to consider fairly the imposition of the death 
sentence in a particular case.

448 U.S. at 44-45 (quoting Boulden v. Holman, 394 U.S. 478, 483- 
-84 (1969)). Thus, to say that Murphy's exclusion may be upheld 
because he could not vote for capital punishment without violat­
ing his own strong principles is a complete non seguitur. At no 
time was it shown that Murphy would have any difficulty curbing 
those principles, following the law, and doing his civic duty as 
a responsible juror in accordance with his instructions and his
oath.

In Witt, this Court upheld the exclusion of a venire member 
who admitted that her personal views about capital punishment

53



would interfere with the performance of her duties as a juror. 83 
L.Ed.2d at 846. Unlike venire member Colby in Witt, Murphy here 
said no such thing. The difference between the two prospective 
jurors was succinctly stated by Judge Johnson of the Eleventh 
Circuit, dissenting from that Court's affirmance of the denial of 
habeas corpus relief upon remand from this Court:

Colby stated that a conflict between belief 
and duty would interfere with performance of 
duty, while Murphy said only that a conflict 
would exist. The fact that a conflict exists 
between belief and duty tells a judge abso­
lutely nothing about how the juror will react 
when faced with that conflict.

Darden v. Wainwright, 767 F.2d at 759 n.3.
Because the trial judge did not employ the correct standard 

in questioning Murphy, this Court should not defer under Witt 
to the judge's finding that the venireman deserved to be ex­
cluded. Recognizing that the judge's understanding and applica­
tion of the correct standard is central to a determination that 
the exclusion was presumptively correct, this Court in Witt 
looked closely at the standard employed by the trial judge:

[T]here is every indication that the judge 
indeed applied the correct standard. Although 
the judge did not participate in questioning 
venireman Colby, the record shows that on 
several subsequent occasions during voir dire 
he did participate in questioning. On each of 
those occasions the judge asked questions en­
tirely consistent with the Adams standard.

83 L.Ed.2d at 856.

54



in the present case it was the trial judge himself who 
personally questioned the venireman at issue. His questioning of 
Murphy was hardly "consistent with the Adams standard." Further­
more, as noted in Judge Johnson's dissent below, the trial judge 
announced this incorrect standard at the very opening of the 
voir dire and again at a later point after Murphy's exclusion. 
767 F.2d at 755-57. And the exclusion for cause resulted solely 
from his failure to employ the correct standard —  not 
from any ambiguity or indecisiveness in the venireman's answer. 
Murphy gave a direct and straightforward answer —  "Yes, I have"
__but to the wrong question. That was the only question
directed at him concerning his views about capital punishment.
In contrast to Witt, where Mrs. Colby answered six questions on 
the subject, there was no colloquy here which could give rise 
to any presumption of a finding as to demeanor or credibility.

This is simply a case in which the trial judge employed a 
constitutionally incorrect standard in his questioning of a

26 Murphy had just been seated in the jury box a moment 
earlier, and had not been the subject of any previous group or 
individual questioning about capital punishment. R. 165.

27 The Court below erroneously stated that defense counsel did not 
object to Murphy's exclusion. 767 F. 2d at 754. At the outset_ of 
the voir dire, during the same discussion in which the trial 
iudqe announced that he would exclude any venire member who if 
he did follow it [the law], would be going against his 
principles," the judge granted defense counsel a continuing 
objection to such exclusions. R. 18-19. Following Murphy's 
exclusion the judge explicitly directed the court reporter to 
note defense counsel's objection pursuant to that ruling. l£. at
165.

55



prospective juror and, therefore, obtained a constitutionally 
inadequate answer. Habeas corpus relief should be granted.

Ill PETITIONER'S DEATH SENTENCE SHOULD BE VACATED BECAUSE HE WAS 
BEREFT OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHICH DEPRIVED 
ll^OF A FULL, FAIR, AND INDIVIDUALIZED DETERMINATION OF 
WHETHER HE SHOULD LIVE OR DIE - ■ ■ —----

A capital sentencing proceeding in which the sentencer 
cannot give

independent mitigating weight, to aspects of 
the defendant’s character and record and to 
the circumstances of the offense proffered in 
mitigation creates the risk that the death 
penalty will be imposed in spite of factors 
which may call for a less severe penalty.

Lockett v. Ohio, 438 U.S. 586, 605 (1978). Without consideration 
of "compassionate and mitigating factors stemming from the 
diverse frailties of humankind," a capital defendant would be but 
one of a "faceless, undifferentiated mass to be subjected to the 
blind infliction of the penalty of death." Woodson v. North 
Carolina, 428 U.S. 280, 304 (1976). Accord Zant v. Stephens, ---

23 Although the jury's role in sentencing in Florida capital cases 
is advisory, the trial judge may not overrule a jury 
recommendation of mercy unless "'the facts suggesting a sentence 
of death ... [are] so clear and convincing that virtually no 
reasonable person could differ.;", Proffitt v. Florida 428 U.S. 
242 249 (1976) (plurality opinion). Witherspoon, of course,
applies to the selection of any "jury that imposed or recom­
mended" a death 
522

sentence. 
Timphasis added); see

Witherspoon v. Illinois, 391 U.S. at 
id. at “518 n. 12~ And this Court hasempnasis duueu; , acc - **, — - , . -expressly held that even one unconstitutional exclusion for cause 

requires reversal of the sentence of death. Davis v. Georgia, 
429 U.S. 122 (1976).

56



29
0>s. ___, 7 7 L. Ed. 2d 235, 251 ( 1983). Accordingly, the Court
has vacated death sentences imposed where.nonstatutory mitigating 
evidence was precluded either by statute, Lockett v. Ohio; by 
state coilrt practice, Eddings v. Oklahoma,, 455 O.S. 104, 113-14 
(1982); or by state rules of evidence, Green v. Georgia, 442 U.S. 
95, 97 (1979). This case asks whether the same relief is due 
when that deprivation is caused by counsel's mistakes.

At the habeas hearing before the magistrate, trial counsel 
Maloney explained the failure to develop and present nonstatu­
tory mitigating evidence as premised on an understanding that the 
Florida statute precluded such evidence. " [A]fter a perusal of 
the mitigating circumstances in the Florida Statute 921.141 [,] 
... we reached the conclusion that Mr. Darden did not qualify 
for any of the statutory factors. H.C. 154. In apparent candor, 
Maloney conceded: "I was completely unaware that any mitigating 
circumstance, if relevant, is admissible. Id_.

Counsel's interpretation of the statute had some support,

^  Such evidence "may make a critical difference, 
capital case." Stanley v. Zant, 697 F.2d 955
1983) .

especially in a 
969 (11th Cir.

30 Florida's 1972 capital sentencing statute confined the jury s 
sentencing deliberations to three issues.

(a) Whether sufficient aggravating circum­stances exist as enumerated in subsection 
(6), and

(b) Whether sufficient mitigating circum­stances exist as enumerated in subsection 
(7), which outweigh aggravating circum­
stances found to exist, and

(c) Based on these considerations whether the

57



31 but it made noand was even adopted in some later Florida cases, 
sense in the context of Mr. Darden's case. For the trial court 
repeatedly and emphatically assured the defense that it could "go 
into any other facts [beyond the statute] that might really be 
pertinent to full consideration of [petitioner’s] case and the 
analysis of [petitioner] and [his] family situation, [his] causes 
or anything else that might be pertinent to what is the appropn-

defendant should be sentenced to life or 
death.

Fla Stat S 921.141(2)(a) , (b), (c)(emphasis added). The judge's
a lt i in a tV d e c is io n  operated within the same statutory confines 
Fla Stat. § 921.141(3). See, e.g., Vance, The Death Penalty 
After Furman, 48 Notre Dame Lawyer‘$50, 3 55 ( 1973)(Under the new Florida sT a-tute, "capital felonies and their attendant aggrava­
ting or mitigating circumstances are carefully spelled out. ).

Not only did the statute appear restrictive on its face; the 
Florida legislature intended it to be. See Hertz & Weisberg, I 
Mitigation of the Penalty of Death: Lockett v. Ohio and_tHe 
C aoT&r Defend ant's Right to Consideration ot Mitigating circugE 
stances',' 69 Cal. L. Rev. 3li, T5B n. 199 (1 9 8 1 ). boon arcer Lockett announced the constitutional requirement that mitigating 
evidence be unrestricted, the Florida legislature amended the 
statute. It deleted the words of restriction, as enumerated m  
subsection (7)," from subsection (2)(b)'s reference to mitiga­
ting circumstances, and specifically added a clause to permit the 
introduction of evidence of "the nature of the crime and the 
character of the defendant." 1979 Fla. Laws ch. 79-353. These 
provisions would not have been necessary unless the prior statute 
was indeed restrictive.

Six months before petitioner's trial, the Florida Supreme 
Court had interpreted the statute as restricting the scope of 
mitigating evidence. State v. Dixon, 283 So.2d 1 (Fla. 1973).

31 Cooper v. State, 336 So.2d 1 133, 1 1 39 n.7 (Fla. 1976)_, cert, 
denied, 43l"u7~925 ( 1977). See also Gibson v. State, 351 So. 2d 
51*7-35! . n.6 (Fla. 1977); Bar^Sy '* > . £  J«.
1270-71 
1975).

(Fla. 1977); Songer v. State,

58



ate sentence." R. 887; accord R. 883-84, 888, 904. Counsel failed 
to understand the critical value of presenting factors broader 
and more personal than those embodied in the narrow statutory
list.
_  Instead, counsel's principal pre-sentencing preparation
consisted of one twenty minute interview in the course of a forty
minute court recess. H.C. 373. Though the court offered to
recess the trial for several days so that counsel could properly
prepare for sentencing, R. 874, defense counsel preferred to
"proceed[] rather quickly before the Jury," asking only for "10
or 15 minutes with the Defendant prior to starting this." R. 875.

Counsel made no effort to inform themselves of Mr. Darden’s
previous reputation for friendliness, good character, and 

32non-violence. Misfortunes in Mr. Darden's past such as a 
life of extreme poverty and social deprivation, the premature 
death of his mother and its lasting effects on him, the desertion 
of his father and stepmother, the harsh treatment of North 
Carolina reform authorities who committed him to a juvenile 
institution for four years for pilfering a mailbox never
entered the decision on death. Because of counsel's misperception 
of the scope of a capital sentencing proceeding, neither judge 
nor jury was informed of even the nonstatutory information of 
value already available to defense counsel in two psychiatric 
reports. R. 885-86. One of these reports made note of peti-

32 Mr. Darden had a previous conviction for assault with intent to 
commit rape. Darden v. State, 218 So.2d 485 (Fla. 2d DCA 1969)

59



and indicated that hetioner's circumstances from childhood on 
ran several businesses successfully, was well liked in the 
community, was considered non-violent by his acquaintances, and 
functioned —  no doubt in large measure because of his early
deprivations —  at the dull normal I.Q. of 88.

Trial counsel's poor performance had important eighth 
amendment consequences. It cost him the opportunity to present 
evidence of a difficult, stunting upbringing and a prior reputa­
tion for a solid, nonviolent character. Instead, it resulted m  
‘a sentencing presentation that lasted only a few minutes, 
occuping seven pages of transcript. It cost him a closing 
argument, a last opportunity for a professional advocate to weave 
the widely varying threads of petitioner's circumstances and 
times into a life, and give meaning and depth and significance to
it in the jury's sentencing decision.

This Court has recently articulated a two-pronged standard 
for adjudicating claims of "actual ineffectiveness" of counsel. 
The performance component requires the defendant to "show that

33 some nonstatutory mitigating evidence did find its “ayintothe 
record nevertheless. At the court's urging, Mr. Darden .ose 
aaain to profess his innocence ("emotionally and with what 
appeared 0̂ 1 its face to be sincerity") and to advise the jury 
that he was the father of a family of seven children. The trial court, demonstrating foresight unusual for the times, madenote 
of these factors in his sentencing report. But see.. Daraen v_ 
State 329 So.2d 287, 291 (Fla. 1976) (where fETFT3?ida Supreme 
Court'observed that there were "no mitigating circumstances to 
reduce the penalty from death"). Here again, however, counse s 
judgment and training in persuasion were never brought to bear on 
this information and its presentation. Counsel s function 
shrivelled from advocate to mere presence m  the courtroom.

60



counsel's representation fell below an objective standard of
reasonableness." -  Washington ---- U -S‘ ----' 8°
I.. Ed. 2d 674, 693 ,1984). See also frith-,. Wainwri^bt, 741 E.2d 
1248, 1254 (11th Cir. 1984). The second prong demands a showing
"that there is a reasonable probability that, but for counsel's 
unprofessional errors, the result of the proceedings would have 
been different," Strickland. 80 L.Ed.2d at 698. See Smith, 741 
P 2d at 1254. The Court defined reasonable probability as "a 
probability sufficient to undermine confidence in the outcome." 
Strickland, 80 L.Ed.2d at 698.

in Strickland, defense counsel offerred no futher evidence 
,t sentencing because of a "sense of hopeless ness.about the 
evidentiary effect of (the defendant's] confession" and because 
offering no evidence permitted him to argue facts about the 
defendant's background presented at an earlier plea colloquy

. . __ his client to cross-examination. 80 L.Ed.2d atwithout subjecting his client
684 . Counsel also knew that the judge favored "a convicted 
defendant who owns up to his crime." Id. at 685. On this basis, 
counsel in Strickland made an extensive closing argument, id. at 
684, which the trial Judge found "admirable." Id. at 686. In 
Strickland, the Court concluded that "counsel has a duty to make 
reasonable investigations or to make a reaonable decision that 
makes particular investigations unnecessary." Id. at 695. It 
concluded that, in the circumstances of that case, counsel's 
performance was reasonable.

61



Here, defense counsel's preparation for and presentation of 
a case at the sentencing phase were not reasonable. The decision 
not to investigate was not an informed, tactical judgment. 
Rather, it was reached because counsel neither knew the law nor 
attempted to investigate and find out the law governing senten­
cing. Indeed, even after the trial court made it clear that 
nonstatutory mitigating factors would be considered and that a 
continuance would be allowed so that counsel could prepare 
properly, counsel nevertheless rushed the case to judgment; they 
failed even to present the nonstatutory mitigating evidence 
already available to them. Counsel’s argument on sentencing was 
hardly professional, much less "admirable," consisting of only a 
short statement that served to highlight the aggravating rather
than the mitigating circumstances.

Unlike Strickland, where the Court concluded that the 
"overwhelming" evidence in favor of death made it improbable 
"that the omitted evidence would have changed the conclusion," 80 
L.Ed.2d at 701, the substandard performance of counsel in this 
case mattered very much. For the prosecutor argued extensivly 
that Mr. Darden was no better than an animal, that he should be 
out to death because otherwise the prison system would release 
him again, and that society was already unlucky that Mr. Darden 
had not managed to kill himself. All of this was both beyond the 
record and beyond the pale. The sentencing hearing began only an 
hour later, in the wake of that argument. Had counsel offered 
the nonstatutory evidence discussed above, it might at least have

62



counteracted these impermissible arguments. It would have offered 
the jury -  which, without such evidence, nevertheless split 
over the question of punishment —  information upon which it 
could have relied in considering life as an appropriate sentence 
for someone who was a human being with "the diverse frailties of 
humankind." Woodson, 428 D.S. at 304. Instead, it was urged to 
consider whether to extinguish an "animal" and thus strike a blow
against an errant prison system.

Lockett and Eddings emphasize that: "in capital cases the
fundamental respect for humanity underlying the Eighth Amendment 

requires consideration of the character and record of the 
individual offender and the circumstances of the particular 
offense as a constitutionally indispensable part of the process 
of inflicting the penalty of death." Woodson v. North Carolina, 
428 U.S. at 304. "A capital sentencing proceeding ... is 
sufficiently like a trial in its adversarial format ... that 
counsel’s role in the proceeding is comparable to counsel's role 
at -trial —  to insure that the adversarial process works to 
produce a just result---" Strickland, 80 L.Ed.2d at 693.

Here, counsel failed altogether to submit the question of 
life or death to adversarial testing, even after the trial judge 
invited them to do so and suggested a continuance. The prosecu­
tor, on the other hand, had missed no opportunity to press home 
his point that "the animal" deserved death by execution if not by 
his own hand. Here, "the core purpose of the counsel guarantee" 
was thwarted; "confronted with both the intricacies of the law

63



*

and the the advocacy of the prosecutor...," Onited States v. Ash, 
413 o.S. 300, 309 (1973), Mr. Darden was left with no assistance 
on either score. Rather, he literally stood up for himself, 
alone. Because this sentencing -process los[t] its character as a 
confrontation between adversaries," and became instead the 
-sacrifice of unarmed prisoners to gladiators...," United States
v. cronic, ___ U.S. ___, 80 L.Ed.2d 657, 666-67 (1984) (quoting
United States ex rel. Williams v. Twomey> 510 F.2d 634, 640 (7th 
Cir. 1974)), the resulting sentence of death should be reversed.

CONCLUSION
For the foregoing reasons, the judgment of the court of 

appeals should be reversed. *

Oocno^ffnl1v submitted,

ROBERT AUGUSTUS "'HARPER, J r .
317 East Park Avenue 
Post Office Box 10132 Tallahassee, Florida 32302 
(904) 224-5900

COUNSEL FOR PETITIONER

64