Thurgood Marshall

“ This analysis erroneously presumes precisely what Caldwell denies, that "focused, unambiguous, and strong," prosecutorial arguments that mislead a jury about its sentencing role in the capital context can ever be deemed harmless. Caldwell rests on the view that any strong, uncorrected, and unequivocal prosecutorial argument minimizing the jury's sense of responsibility for its capital sentencing decision "presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." ”

“ In his closing argument in the sentencing phase of Robert Sawyer's trial, the prosecutor emphatically argued to the jury that a sentence of death would be "merely a recommendation" and that "others" would be able to correct the decision if it turned out to be "wrong." This argument misrepresented the scope of appellate review of capital sentences under Louisiana law. La.Code Crim.Proc.Ann., Art. 905.9 (West 1984) (review by State Supreme Court is limited to question whether sentence of death is "excessive") . ”

“ By the time of Caldwell, "this Court's Eighth Amendment jurisprudence ha [d] taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the State." 472 U.S., at 329, 105 S.Ct., at 2640.
The majority nonetheless insists that the "principle of reliability in capital sentencing" is framed at such a high "level of generality" that treating it as the relevant principle for determining whether Caldwell is new law would render Teague "meaningless." ”

“ Parks, 494 U.S., at 495, 110 S.Ct., at 1264 ("The objectives of fairness and accuracy are more likely to be threatened than promoted" by the rule) ; cf. ante, at 244 (acknowledging that Caldwell § central purpose is to enhance "the accuracy of capital sentencing") . Those cases thus could have been decided in the same way under our prior retroactivity doctrine, which weighed the State's finality and reliance interests against the defendant's interests protected by the new rule. ”

“ Finally, the fundamental importance of Caldwell cannot be denied on the ground that "it is 'unlikely that many [new rules] of basic due process [essential to accuracy and fairness] have yet to emerge.' " Ante, at 243 (quoting Teague, 489 U.S., at 313, 109 S.Ct., at 1077 (plurality opinion) ) . The majority cannot bind the future to present constitutional understandings of what is essential for due process. ”

“ Berry, 391 So.2d 406, 418 (La.1980) (opinion on rehearing) , is evidence that the right is cognizable under the Federal Constitution. The States' strong pre-Caldwell condemnation of misleading prosecutorial arguments regarding the scope of appellate review is thus additional evidence that our Eighth Amendment decisions compelled the result in Caldwell.
Moreover, the majority's contention that the state courts based their decisions solely on "state common law," ante, at 239, assumes that States' capital punishment jurisprudence has evolved independently of our Eighth Amendment decisions. ”

“ This purported reliance interest depends on the erroneous view that Caldwell error could survive review under the Due Process Clause. See, supra, at 257. But even granting a distinction in the degree of scrutiny applied by Donnelly and Caldwell, the State's claimed interest in having its intentional misconduct reviewed under a less demanding standard is hardly worth crediting. ”

“ State, 240 Ga. 142, 146, 240 S.E.2d 37, 40 (1977) (holding that "this type of remark has an unusual potential for corrupting the death sentencing process") ; State v. Berry, 391 So.2d, at 418 ("If the reference conveys the message that the jurors' awesome responsibility is lessened by the fact that their decision is not the final one, or if the reference contains inaccurate or misleading information, then the defendant has not had a fair trial in the sentencing phase, and the penalty should be vacated") ”

“ The strict procedural default rule is designed in part to protect the State's interest-unique in the context of procedural default-in correcting error in the first instance. Sykes, supra, 433 U.S., at 88-90, 97 S.Ct., at 2507-2508. ”