Brooks v. Kemp’s Empirical Analysis

Citation profile

150 federal appellate · 3 district · 50 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 268 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[I]solated or ambiguous or unintentional remarks must be viewed with lenity.”

   7 later decisions quote this exact passage · from the majority
   e.g. Jones v. Kemp · 937 So. 2d 612 - Farina v. State

2. ““While argument focusing on the victim can be dangerous, not all prosecutorial references to the victim are improper. The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of ‘circumstances of the crime’ that mere mention will always be problematic. It is not necessary that the sentencing decision be made in a context in which the victim is a mere abstraction. “Here, Whisnant asked the jury to remember ‘the person who is not here ... Carol Jeannine Galloway.’ He then ticked off some personal attributes shown by the evidence, i.e., that she was a pretty, 23-year old, unmarried woman living with her parents and that she was a considerate person of high morals. These comments did personalize the victim, but they were brief enough that we cannot conclude that they injected prejudicial or irrelevant material into the sentencing decision.””

   5 later decisions quote this exact passage · from the dissent
   e.g. 110 Wash. 2d 577 - State v. Rice · 680 F. Supp. 867 - Kordenbrock v. Scroggy

3. “asking whether the absence of improper argument would have, in reasonable probability, changed the result is consistent with the standards discussed in Donnelly and with subsequent cases applying the fundamental fairness standard. The several factors which those cases have found relevant operate in the same fashion under the “reasonable probability” test. For example, the willingness to tolerate an isolated or ambiguous argument stems from a recognition of its minimal effect upon the jury. Another factor—the degree to which the challenged remarks have a tendency to mislead the jury and prejudice the accused, Hance v. Zant, 696 F.2d [940] at 950 n. 7 [ (11th Cir.1983) ]—is necessarily included within the reasonable probability test. Even argument greatly exceeding the bounds of propriety will not be fundamentally unfair in the guilt phase of a case with overwhelming evidence because of the low probability of the argu ment’s impact. See, e.g., Cobb v. Wainwrigkt, 609 F.2d 754 (5th Cir.) (given the strength of evidence against the defendant, the prosecutor’s inflammatory argument did not render trial fundamentally unfair), cert. denied, 447 U.S. 907 , 100 S.Ct. 2991 , 64 L.Ed.2d 857 (1980); Cronnon v. Alabama, 587 F.2d 246 (5th Cir.) (improper argument not unconstitutional due to overwhelming evidence of guilt), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 792 (1979). On the other hand, arguments serious enough to satisfy the “reasonable probability” test have been fo”

   3 later decisions quote this exact passage · from the majority
   e.g. 639 F. Supp. 490 - Anglin v. Green · 623 F. Supp. 316 - High v. Kemp