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Antioch Law Journal

Authors

Marshall Dayan

Abstract

In January 1983, the United States Court of Appeals for the Eleventh Circuit decided the case of Hance v. Zant. Establishing a stringent standard apparently in line with the Supreme Court's requirement of heightened reliability in capital cases, the Eleventh Circuit reversed Hance's death sentence. The court held, inter alia, that the prosecutor's inflammatory closing argument at the end of the sentencing phase of the trial was violative of the eighth and fourteenth amendments. Six months later, in a group of four other death penalty cases, the United States Supreme Court dismissed challenges to the sentencing process.2 The Court held that as long as the information presented to the sentencing authority was reliable, and related to the defendant's crime or character, the constitutional protections of the eighth and fourteenth amendments were not violated. These cases, coupled with Strickland v. Washington,3 a Supreme Court decision regarding ineffective assistance of counsel, led the Eleventh Circuit Court of Appeals to overrule its decision in Hance less than three years later. In Brooks v. Kemp4 and its companion case, William Tucker v. Kemp,5 the Eleventh Circuit applied a radically new standard for reversal of death sentences based on prosecutorial misconduct at closing argument. On petition for writ of certiorari to the Eleventh Circuit, however, the United States Supreme Court vacated the judgment of the Eleventh Circuit Court of Appeals in Tucker.6 The Supreme Court remanded the cause for further consideration in light of Caldwell v. Mississippi,7 a recently decided death penalty case also involving prosecutorial misconduct at closing argument. This Comment analyzes the tragic series of misperceptions by the Eleventh Circuit Court of Appeals, places much of the blame for the Eleventh Circuit's improper application of a legal principle on the shoulders of the United States Supreme Court, and proposes an appropriate standard of review for challenges to death sentences based on prosecutorial misconduct at closing argument.

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