Wilson v. Kemp’s Empirical Analysis

Citation profile

28 federal appellate · 3 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 43 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “A prosecutor’s argument violates the Constitution if it renders the defendant’s trial “so fundamentally unfair as to deny him due process.” [Brooks v. Kemp, 762 F.2d 1383 , 1400 (11th Cir.1985) (en banc) ] (quoting Donnelly v. DeChristoforo, 416 U.S. 637 , 645, 94 S.Ct. 1868 , 1872, 40 L.Ed.2d 431 (1974)) [, vacated on other grounds, 478 U.S. 1016 , 106 S.Ct. 3325 , 92 L.Ed.2d 732 (1986) ]. Improper argument by a prosecutor reaches this threshold of fundamental unfairness if it is “so egregious as to create a reasonable probability that the outcome was changed.” Id. at 1403. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. 668 , 694, 104 S.Ct. 2052 , 2068, 80 L.Ed.2d 674 , 698 (1984). The methodology we have adopted for applying these constitutional standards is to determine first whether particular arguments by a prosecutor were improper and if so, to determine what the probable effect of the improper argument was on the jury. See Brooks v. Kemp, 762 F.2d at 1403.”

   2 later decisions quote this exact passage · from the majority
   e.g. Presnell v. Zant · Nelson v. Nagle

2. “[M]y feelings, ladies and gentlemen, probably are best summed up in the words of a Supreme Court Justice many years ago, in 1873, he wrote an opinion in the case of Eberhart V. The State of Georgia, and while this is more than one hundred years ago, it, in my opinion, fits this situation that we have here today, and it says, reading at page [610] and Volume 47 of the Georgia Reports: “We have, however, no sympathy with that sickly sentimentality that springs into action whenever a criminal is at length about to suffer for crime. It may be a sign of a tender heart, but it is also a sign of one not under proper regulation. Society demands that crime shall be punished and criminals warned, and the false humanity that starts and shudders when the axe of justice is ready to strike, is a dangerous element for the peace of society. We have had too much of this mercy. It is not true mercy. It only looks to the criminal, but we must insist upon mercy to society, upon mercy [sic] to the poor woman whose blood cries out against her murderers. That criminals go unpunished is a disgrace to our civilization, and we have reaped the fruits of it in the frequency in which bloody deed [sic] occur. A stem, unbending, unflinching administration of the penal laws, without regard to position or sex, as it is the highest mark of our [sic] civilization, it [sic] is also the surest mode to prevent the commission of offenses.” 3”

   1 later decision quote this exact passage · from the majority
   e.g. Presnell v. Zant

3. ““As used by the prosecutor, the Gregg passage conveys the impression that ‘this function’ — i.e., capital punishment — is ‘essential in an ordered society.’ By contrast, the Supreme Court’s intended meaning was quite different, as shown by a reading of the entire Gregg passage in context. The intended meaning was that recognition of the function of retribution is ‘essential in an ordered society.f’] * * * [0]ne need only read the relevant portion of the prosecutor’s closing argument to appreciate its message: the United States Supreme Court has stated that in its view, capital punishment is essential in an ordered society. The fact that many states and countries do not have capital punishment and yet enjoy ordered societies belies this conclusion, which in any event has never been expressed by the Supreme Court. * * * [A] review of the entire context of the Gregg opinion shows that this was not the Supreme Court’s intended meaning. Therefore, we conclude that the prosecutor’s misleading use of the passage was improper argument * * Id. at 625.”

   1 later decision quote this exact passage · from the majority
   e.g. State v. Bedford