This morning the U.S. Court of Appeals for the Sixth Circuit denied death row inmate Billy Irick's habeas appeal in Irick v. Bell. Judge Batchelder delivered the opinion of the court, joined by Judge Siler. Judge Gilman issued a separate opinion concurring in part and dissenting in part.

The two issues on appeal were whether Irick was denied due process because the prosecution had failed to turn over a witness statement at trial and whether there was prosecutorial misconduct at the penalty phase. The panel unanimously rejected the first argument (while disagreeing on the proper standard of review), but split over whether improper statements in the prosecutor's closing argument justified the writ.

Irick alleged that the prosecutor's closing statement was improper, and may have induced the jury to deliver a death sentence rather than a life sentence. The relevant portion of the prosecutor's closing statement was as follows:

But what about other people? Because, with your verdict, you make a statement about things whether you realize it or not. You will make a statement about the value of Paula's life. You will make a statement about what this man did and your willingness to tolerate it. You will make a statement to everybody else out there what is going to happen to people who do this sort of thing. Some of you may believe that punishment is a deterrence. Some of you may not. I don't know. I personally believe that it is. I will tell you why, and this is not an original thought. But I have heard this comment made, and I guess it all depends on how you are turned [sic]—how you look at the world.

Someone said that the death penalty is, sort of, like a lighthouse. You don't know how many ships have been saved by its beacon. You can't count that. You only know the ones that disregarded its warning. Those, you count. Those are the Billy Ray Iricks.

I know this is a hard decision, ladies and gentlemen, but there comes a time in society when we have the right to defend ourselves. I suggest to you that it is more than a right to defend ourselves in this kind of situation where there is a child involved. We have a duty to defend ourselves, a duty to defend our families, and our homes, and our children. That is what this case is about. And our law is now being entrusted into your care. Thank you.

Quick test -- perhaps a review for those preparing for a CrimPro exam -- what about this closing is improper? [Consult the opinion for your answer.]

Assuming portions of the closing were improper, the majority held that it did not justify overturning the death sentence. Any misconduct was not "flagrant" and did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Judge Gilman, on the other hand, believed "there is a reasonable probability that at least one juror would have reached a different outcome as to Irick's sentence in the absence of the prosecutor's misconduct." The state courts had recognized that the prosecutor's statement was improper, but had not found it to be reversible error, an outcome Judge Gilman found to be unreasonable, justifying issuance of the writ.