Johnny Bennett v. Bryan Stirling

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-03191-RMG. [999971916]. [16-3]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-3

JOHNNY BENNETT,
Petitioner - Appellee,
v.
BRYAN P. STIRLING, Commissioner, South Carolina Department
of Corrections; JOSEPH MCFADDEN, Warden, Lieber Correctional
Institution,
Respondents - Appellants.

Appeal from the United States District Court for the District of
South Carolina, at Charleston.
Richard M. Gergel, District
Judge. (2:13-cv-03191-RMG)

Argued:

October 25, 2016

Decided:

November 21, 2016

Before WILKINSON, KING, and HARRIS, Circuit Judges.

Affirmed by published opinion.
Judge Wilkinson
opinion, in which Judge King and Judge Harris joined.

wrote

the

ARGUED: Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF
SOUTH CAROLINA, Columbia, South Carolina, for Appellants.
John
Henry Blume, III, CORNELL LAW SCHOOL, Ithaca, New York, for
Appellee.
ON BRIEF: Alan Wilson, Attorney General, John W.
McIntosh, Chief Deputy Attorney General, Donald J. Zelenka,
Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellants.
Lindsey S. Vann, JUSTICE 360, Columbia, South
Carolina, for Appellee.

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WILKINSON, Circuit Judge:
Petitioner Johnny Bennett challenges the imposition of a
capital sentence in the South Carolina courts. While recognizing
full well the deferential standard of review under AEDPA, we
nonetheless agree with the district court that the sentencing
was suffused with racially coded references to a degree that
made

a

fair

proceeding

impossible.

We

therefore

affirm

the

judgment of the district court granting habeas relief.
I.
Bennett, a black man, was convicted in 1995 for murder,
kidnapping, armed robbery, and larceny in a South Carolina trial
court.

In

a

Solicitor

separate

Donald

penalty

Myers

at

proceeding,

the

helm,

the

state,

emphasized

the

with
size

difference between Bennett (6’6” and 300 pounds) and the victim
Benton Smith, a black man with a slight build (5’7” and 135
pounds). A mixed-race jury sentenced Bennett to death for the
murder.

On

appeal,

the

South

Carolina

Supreme

Court

upheld

Bennett’s convictions but reversed his death sentence, ordering
the trial court to conduct a new sentencing. State v. Bennett,
493 S.E.2d 845 (S.C. 1997) (Bennett I).
The second sentencing proceeding was held in 2000. As in
the

first

trial,

Myers

led

the

prosecution

and

the

jury

sentenced Bennett to death. But this time, the jury was composed
of

white

jurors

only.

And

before
2

this

all-white

jury,

Myers

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chose to use racially charged language from the first sentence
of his opening argument to his final soliloquy, casting aside
the race-neutral presentation he had employed with the mixedrace jury.
The most egregious appeals to racial prejudice came in his
closing argument, in which he referred to Bennett using a slew
of

derogatory

terms.

Myers

admonished

the

jury,

“Meeting

[Bennett] again will be like meeting King Kong on a bad day.”
J.A.
man,”

1443.
a

He

also

Bennett

a

“monster,”

labeled

old

“big

a

“caveman,”

tiger,”

and

a

“mountain

“[t]he

beast

of

burden.” J.A. 1420-44. In addition, Myers intentionally elicited
irrelevant,
witnesses,
murderous,
witness,

inflammatory
who

recounted

black

Myers

blonde-headed

testimony
a

dream

Indians.

While

alluded

lady,”

to

J.A.

from
in

which

of

he

sexual

alerting

the

was

cross-examining

Bennett’s
1343-44,

one

chased
a

partner
the

state’s

jury

by

defense
as
to

“the
the

interracial nature of the relationship.
Bennett moved for a new trial, but the trial court denied
his request. The court found that the “King Kong” comment “was
not an appeal to racial prejudice” and was an “invited response”
to the defense’s portrayal of Bennett as a peaceful and helpful
prison citizen. J.A. 1628-29. As a result, the court concluded,
the reference did not result in a denial of due process. The

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court analyzed the “caveman” comment separately and arrived at
the same conclusions.
The

South

Carolina

Supreme

Court

affirmed

the

death

sentence, holding that the comments “did not improperly inject
racial issues into the trial.” State v. Bennett, 632 S.E.2d 281,
289 (S.C. 2006) (Bennett II). The court observed that the “King
Kong”

label

“could

have

racial

connotations”

but

found

that

Myers’s use of the term “was not an appeal to the passions or
prejudices

of

the

jury.”

Id.

at

288.

Instead,

the

reference

conveyed Bennett’s “size and strength as they related to his
past crimes” and was an invited response. Id. at 288-89. The
court

found

testimony
hair.

the

that

Id.

certiorari.

at

“caveman”

Bennett
289.

Bennett

had

The
v.

comment
twice

United
South

“merely

pulled
States

Carolina,

descriptive”

someone
Supreme
549

U.S.

else

by

of
the

Court

denied

1061

(2006)

(mem.).
In

2008,

Bennett

sought

post-conviction

relief

(PCR)

in

state court, arguing that the seating of a racially biased juror
violated his right to an impartial jury under the Sixth and
Fourteenth Amendments. While preparing for the PCR proceeding,
Bennett’s counsel interviewed a former juror and asked why the
juror thought Bennett committed the murder. The juror responded,
“Because he was just a dumb nigger.” J.A. 1846. After hearing
testimony from the juror, the PCR court denied relief on the
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grounds that the juror was not racially biased at the time of
the actual sentencing. The South Carolina Supreme Court denied
certiorari.
Bennett

filed

the

instant

petition

for

federal

habeas

relief under 28 U.S.C. § 2254 in 2014. He raised seven grounds
for relief, including prosecutorial misconduct and juror bias.
After a hearing, the district court granted relief independently
on

both

grounds,

vacated

Bennett’s

death

sentence,

and

“return[ed] the matter to the Lexington County Court of General
Sessions

for

resentencing

within

180

days

of

[the]

order.”

Bennett v. Stirling, 170 F. Supp. 3d 851, 855 (D.S.C. 2016).
According to the district court, the state courts unreasonably
determined

that

the

“King

Kong”

comment,

“black

Indians”

testimony, and “blonde-headed lady” remark were not intentional
appeals to racial prejudice. Id. at 861-67. The district court
also found unreasonable the PCR court’s determination that the
juror was not racially biased at the time of the sentencing. Id.
at 867-72. The respondents now appeal.
II.
We review de novo the district court’s decision to grant
habeas relief under 28 U.S.C. § 2254. Winston v. Pearson, 683
F.3d 489, 503-04 (4th Cir. 2012).

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A.
Under Section 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a federal court may
not grant a state prisoner’s habeas petition unless the state
court’s

adjudication

of

the

prisoner’s

claim

was

legally

or

factually unreasonable. See 28 U.S.C. § 2254(d); Pub. L. No.
104-132, § 104, 110 Stat. 1214, 1218-19 (codified at 28 U.S.C.
§ 2254). More precisely, Section 2254(d)(1) allows relief if the
state

court’s

decision

“was

contrary

to,

or

involved

an

unreasonable application of, clearly established Federal law, as
determined

by

the

Supreme

Court.”

§

2254(d)(1).

Circuit

precedent “cannot form the basis for habeas relief.” Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012). In addition, “[t]he more
general the [federal] rule, the more leeway [state] courts have
in reaching outcomes in case-by-case determinations.” Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004). Section 2254(d)(2), in
turn, permits relief where the state court’s decision “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d)(2).
A state court’s factual determinations are presumed correct, and
the

petitioner

must

rebut

this

presumption

by

clear

and

convincing evidence. § 2254(e)(1).
Federal

courts

thus

owe

state

tribunals

significant

deference. In the words of the Supreme Court, “A state court’s
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determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the
correctness

of

the

state

court’s

decision.”

Harrington

v.

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough, 541 U.S.
at 664).
Section 2254 thus imposes a high yet not insurmountable
hurdle to relief. The statute “reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error
correction.” Id. at 102-03 (quoting Jackson v. Virginia, 443
U.S.

307,

332

n.5

(1979)

(Stevens,

J.,

concurring

in

the

judgment)). Federal habeas review may not be used “to secondguess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010). But AEDPA deference is not unlimited.
It “does not by definition preclude relief” and “does not imply
abandonment

or

abdication

of

judicial

review.”

Miller-El

v.

Cockrell, 537 U.S. 322, 340 (2003).
B.
Bennett

alleges

that

the

prosecutor

appealed

to

racial

prejudice in his capital sentencing proceeding. Accordingly, the
“clearly established Federal law” that governs our analysis is
the Supreme Court’s decision in Darden v. Wainwright, 477 U.S.
168 (1986). Darden held that a prosecutor’s improper comments
offend

the

Constitution

if

they
7

“so

infected

the

trial

with

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unfairness as to make the resulting conviction a denial of due
process.” Id. at 181 (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)); see Parker, 132 S. Ct. at 2153. Under
this standard, it “is not enough that the prosecutors’ remarks
were

undesirable

or

even

universally

condemned.”

Darden,

477

U.S. at 180-81. Courts must conduct a fact-specific inquiry and
examine

the

challenged

comments

in

the

context

of

the

whole

record. United States v. Young, 470 U.S. 1, 11-12 (1985).
Prosecutors,

moreover,

retain

substantial

latitude

to

present their case as they see fit. That latitude is not to be
casually abridged. The Supreme Court has cautioned that “[t]he
line separating acceptable from improper advocacy is not easily
drawn.” Id. at 7. Accordingly, courts “should not lightly infer
that a prosecutor intends an ambiguous remark to have its most
damaging meaning” or that a jury “will draw that meaning from
the plethora of less damaging interpretations.” Donnelly, 416
U.S. at 647.
But while a prosecutor “may strike hard blows, he is not at
liberty to strike foul ones.” Berger v. United States, 295 U.S.
78, 88 (1935). It is beyond dispute that “[t]he Constitution
prohibits racially biased prosecutorial arguments.” McCleskey v.
Kemp, 481 U.S. 279, 309 n.30 (1987). Racial prejudice, “odious
in all aspects, is especially pernicious in the administration
of justice.” Rose v. Mitchell, 443 U.S. 545, 555 (1979). For
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reason,

the

Supreme

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Court

has

“engaged

in

‘unceasing

efforts’ to eradicate racial prejudice from our criminal justice
system.” McCleskey, 481 U.S. at 309 (quoting Batson v. Kentucky,
476 U.S. 79, 85 (1986)).
Finally, we remain sensitive to the Court’s judgment that
“the qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the
capital sentencing determination.” California v. Ramos, 463 U.S.
992, 998-99 (1983). Courts cannot avert their eyes from the risk
that

“racial

prejudice

infect[ed]

a

capital

sentencing

proceeding . . . in light of the complete finality of the death
sentence.” Turner v. Murray, 476 U.S. 28, 35 (1986) (plurality
opinion).
For the reasons that follow, the prosecutor’s argument here
exceeded all permissible bounds.
III.
The

state

courts

unreasonably

determined

that

the

prosecutor’s references to Bennett during closing argument were
not appeals to racial prejudice. Drawing on this flawed factual
finding, the courts unreasonably concluded that Bennett’s right
to due process was not violated.
A.
We understand that closing arguments can be florid. Vivid
expression and exaggeration for effect are many an attorney’s
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stock-in-trade.
unmistakably

But

the

calculated

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remarks
to

challenged

inflame

here
fears

racial

were
and

apprehensions on the part of the jury. Just before the jury left
the courtroom to decide whether Bennett would receive a capital
sentence,

Myers

alternated
subhuman

delivered

between

species

a

final

characterizing

and

a

wild,

summation
Bennett

vicious

as

animal.

in
a

which

he

primitive,

Myers

labeled

Bennett an “old caveman,” a “mountain man” (twice), a “monster,”
and a “big old tiger.” J.A. 1420-34. Referring to the murder and
then to Bennett, the prosecutor remarked, “Painful, vile, cruel,
inhuman,

everywhere.

Everywhere.

Everywhere.

The

beast

of

burden.” J.A. 1444. The coup de grâce in this sad story arrived
when Myers warned the jury what would result if it did not
impose the death penalty: “You give him life, the real Johnny
will come back. You give him life and he’ll come back out.
Meeting him again will be like meeting King Kong on a bad day.
Vile

Johnny.

Mean

Johnny.

Manipulating

Johnny.

Murderous

Johnny.” J.A. 1443.
The state courts, most notably the South Carolina Supreme
Court, found that the “King Kong” comment was “not an appeal to
the passions or prejudices of the jury.” Bennett II, 632 S.E.2d
at 288. The state supreme court explained:
[T]he trial court properly determined that [Bennett’s]
size and strength were probative of the aggravating
circumstance of physical torture, which the [trial]
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court charged to the jury. In this regard, the
Solicitor’s use of the term “King Kong” was not
suggestive of a giant black gorilla who abducts a
white woman, but rather, descriptive of [Bennett’s]
size and strength as they related to his past crimes.
Id. The court also found that the “caveman” comment was “merely
descriptive

of

because

prosecutor

the

two

of

[Bennett’s]
made

the

past

remark

violent

while

incidents”

mentioning

how

Bennett pulled two individuals by their hair. Id. at 289.
With all respect, these were unreasonable findings of fact.
The

prosecutor’s

comments

were

poorly

disguised

appeals

to

racial prejudice. It is impossible to divorce the prosecutor’s
“King Kong” remark, “caveman” label, and other descriptions of a
black capital defendant from their odious historical context.
And

in

context,

historical
appallingly

the

prejudice

prosecutor’s
against

disparaged

as

comments

mined

African-Americans,

primates

or

members

a

who
of

vein
have

a

of

been

subhuman

species in some lesser state of evolution. We are mindful that
courts “should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning.” Donnelly,
416 U.S. at 647. But here, “the prosecutor’s remarks were quite
focused, unambiguous, and strong.” Caldwell v. Mississippi, 472
U.S. 320, 340 (1985). The comments plugged into potent symbols
of racial prejudice, encouraging the jury to fear Bennett or
regard him as less human on account of his race.

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The “King Kong” comment especially drew on longtime staples
of racial denigration. That comment was “not just humiliating,
but degrading and humiliating in the extreme.” Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc)
(internal
Kong

in

quotation

marks

particular

omitted).

stoked

Likening

race-based

fears

Bennett
by

to

conjuring

King
the

image of a gargantuan, black ape who goes on a killing spree and
proceeds to swing the frail, white, blonde Fay Wray at the top
of the Empire State Building. Petitioner is right to note that
the film is regarded by many critics as “a racist cautionary
tale about interracial romance.” Br. of Appellee at 40 (quoting
Phillip

Goff

et

al.,

Not

Yet

Human:

Implicit

Knowledge,

Historical Dehumanization, and Contemporary Consequences, 94 J.
Personality & Soc. Psychol. 292, 293 (2008)).
In addition to the content of the remarks, the particular
circumstances
challenged
innocent
prosecutor

of

this

comments
descriptions
easily

case

were

not

appeals

of

could

do

leave
to

Bennett’s
have

any

doubt

the

prejudice,

not

strength.

The

racial

that

size

highlighted

and

Bennett’s

physical

attributes in a race-neutral manner. There was no impediment to
the

prosecutor’s

ability

to

note

“repeated

examples

of

[Bennett’s] proclivity to viciously and savagely attack others
defenseless to someone of his size.” Reply Br. of Appellants at
2. Indeed, the prosecutor did so in a race-neutral manner before
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the

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earlier

mixed-race

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jury.

In

addition,

the

state

used

cardboard figures without objection in the second sentencing to
convey the size disparity between Bennett and his victim. See
Br. of Appellants at 38. And of course, the jury could see
Bennett and assess his size as he sat in the courtroom. See Br.
of Appellee at 50. The prosecutor’s references then were not
only gratuitous but were, as the district court explained, “a
not so subtle dog whistle on race that this Court cannot and
will not ignore.” Bennett, 170 F. Supp. 3d at 866.
B.
The South Carolina Supreme Court’s factual determinations
with

respect

to

Myers’s

close

led

to

its

erroneous

legal

conclusion that Bennett’s due process rights were not violated.
It is important to consider the procedural distortion wrought by
the

challenged

“requires

the

remarks.

The

individual

capital

jurors

to

sentencing
focus

determination

their

collective

judgment on the unique characteristics of a particular criminal
defendant.” McCleskey, 481 U.S. at 311. Impairing the jury’s
ability

“to

confront

and

examine

the

individuality

of

the

defendant would be particularly devastating to any argument for
consideration
factors

of

stemming

.

.

from

.

‘[those]

the

diverse

compassionate
frailties

of

or

mitigating

humankind.’”

Caldwell, 472 U.S. at 330 (quoting Woodson v. North Carolina,
428 U.S. 280, 304 (1976) (plurality opinion)). The prosecutor’s
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closing comments here risked reducing Bennett to his race and
damaged

the

jury’s

ability

to

consider

objectively,

and

individually, whether mercy was warranted.
We must also evaluate the challenged remarks in the context
of the record as a whole. See Young, 470 U.S. at 11-12. The
prosecutor’s opening statement began, “Ladies and gentlemen, you
all have seen the defendant, Johnny Bennett; huge, giant man,
six-six, six-seven, brutal monster size.” J.A. 273. In the next
breath, Myers branded Bennett a “big old brute.” Id. Drawing to
a close, Myers called Bennett a “big old bear of a fellow,” J.A.
277, with a “[b]ig old bear of a fist,” J.A. 280.
The animal imagery was shortly reinforced by racial imagery
from one of the state’s witnesses. The witness, Shannon Gilbert,
was

white

earlier.

and
The

had

been

prosecutor

assaulted
asked

by

Bennett

Gilbert,

“Do

several
you

have

years
any

consciousness about being in a hospital; do you know of any
dreams or anything?” J.A. 393. Gilbert began to testify that he
remembered only one dream from his stay at the hospital, but the
defense objected on relevance grounds. Myers, who plainly knew
what Gilbert would say, responded that Gilbert would “bring out
the relevance.” Id. Gilbert proceeded to describe his dream:
“Indians were chasing me trying to kill me, and the thing that I
thought was they were black. . . . [T]here might have been a
link. You know, that I was remembering something about trying to
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get away from someone.” J.A. 394. At the district court hearing,
the respondents conceded that Myers elicited the testimony and
that they could not articulate a purpose for the testimony other
than invoking racial fears.
Myers also made certain that the jury knew that Bennett had
a sexual relationship with a white prison guard. Byron Collins,
a defense witness, testified that Bennett helped him recover
from

depression

while

in

prison.

Myers’s

initial

cross-

examination consisted of a series of inquiries about whether
Bennett

had

encouraged

Collins

to

be

disruptive

or

to

break

prison rules; Collins answered each question in the negative.
The

defense

briefly

built

on

this

line

of

questioning

on

redirect. On recross, Myers swerved in a different direction and
asked, “There was one guard that loved Johnny Bennett and that
was

Judie

responded,

Hardee,
“The

you

real

big

remember
lady?”

her?”
Id.

J.A.

Myers

1343.

answered,

Collins
“Judie

Hardee, you remember her, the blonde-headed lady?” J.A. 1343-44.
Collins said he didn’t remember, and the prosecution rested.
During his closing argument, Myers reminded the jury that
Bennett was “having sex with the female guard” no fewer than
seven

times.

J.A.

1441.

While

the

state

argues

that

“it

is

extremely common today for people to color their hair,” Br. of
Appellants at 46, the district court rightly noted that “almost
all women with blonde hair are white,” Bennett, 170 F. Supp. 3d
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at 864. As the district court found, “The Solicitor’s carefully
choreographed

questioning

alerted

[Bennett’s]

all-white

jury

that his prison guard lover was a white woman.” Id. at 863.
There was therefore nothing isolated about the prosecutor’s
racially-charged references to Bennett during closing argument.
In Donnelly, the Supreme Court found that a habeas petitioner’s
due

process

rights

were

not

violated

in

part

because

the

prosecutor’s remark “was but one moment in an extended trial.”
Donnelly, 416 U.S. at 645. Here, in contrast, we do not have “a
case where the misconduct of the prosecuting attorney was slight
or confined to a single instance, but one where such misconduct
was pronounced and persistent, with a probable cumulative effect
upon the jury which cannot be disregarded as inconsequential.”
Berger, 295 U.S. at 89.
Whether the “black Indians” testimony or the “blonde-headed
lady”

comment

would

independently

merit

reversal

is

not

a

question we need answer. Suffice it to say that those comments
do nothing to dispel our misgivings about what transpired here.
Race was a recurrent theme throughout the capital sentencing
proceeding, a theme designed to implant both racial fears and
prejudices

in

the

mind

of

the

jury

by

playing

upon

ancient

staples of racial disparagement and discrimination.
Our ruling does nothing to drain the adversary process of
its spontaneity or to suppress the free-wheeling style that some
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finest

advocates

Pg: 17 of 19

employ.

The

proceeding

here

hardly

needed to be run this way. We note once again that in front of
the mixed-race jury at the first sentencing, Myers managed to
respect

the

Constitution’s

prohibition

on

appeals

to

racial

prejudice. His closing argument was race-neutral, and he did not
elicit testimony on the “black Indians” dream.
When

arguing

prosecutor

before

suddenly

and

an

all-white

tellingly

took

jury,
a

however,

different,

the
race-

oriented approach. And though it should not have been necessary
by the year 2000, the defense’s repeated objections put Myers on
notice

that

he

constitutional

had
line

come
even

dangerously
before

his

close

to

closing

crossing

argument

the

began.

Immediately after Myers referred to Bennett’s sexual partner as
“the blonde-headed lady,” the defense moved for a mistrial on
the basis of prosecutorial misconduct. Renewing the motion after
the jury exited the courtroom, the defense argued that it had
repeatedly alerted the court to “the Solicitor’s attempt[s] to
insert race into this case” and that the “blonde-headed lady”
comment

was

“one

of

the

most

despicable

performances

[the

defense had] ever seen.” J.A. 1377.
There can be no fair claim that the prosecutor’s tactics
were invited. The state conceded before the district court that
there

was

no

improper

conduct

by

the

defense;

the

defense’s

witnesses merely portrayed Bennett as a non-violent peacemaker
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and a model citizen in the prison community. The prosecution had
every

right,

of

course,

to

paint

a

dramatically

different

picture, but through evidence that pointed to the actions of the
man, not the happenstance of his race.
Finally, no curative instructions were given. Unlike the
trial judge in Donnelly, who directed the jury to ignore the
challenged remark, 416 U.S. at 644, the state trial court here
never instructed the jury on particular comments, such as the
“King Kong” and “caveman” references, the “blonde-headed lady”
remark,

or

the

“black

Indians”

testimony.

Whether

curative

instructions would have cured the problem or simply served to
reinforce

the

racial

references

is

a

question

we

need

not

address, for the jury retired from the courtroom unadmonished
and its deliberations reached the prosecution’s desired result.
IV.
Even

apart

from

the

deference

due

them

under

AEDPA,

we

emphasize our respect for the efforts of our colleagues in state
courts. We stress once again that prosecutors are entitled to
significant latitude in pressing their closing arguments. There
is no presumption of prejudice from a simple untoward remark;
many

challenged

prosecutorial

comments

will

amount

to

little

more than fleeting remarks whose impact is negligible in the
context of an entire trial. But the prosecutor’s conduct here
“so infected the trial with unfairness as to make the resulting
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Pg: 19 of 19

[sentence] a denial of due process.” Darden, 477 U.S. at 181
(quoting Donnelly, 416 U.S. at 643). *
The

record

here

tells

the

story.

There

is

no

need

for

elaboration on our part. The criminal justice system must win
the trust of all Americans by delivering justice without regard
to the race or ethnicity of those who come before it. The many
instances where the system performs its duties admirably help to
build

the

trust

of

the

people.

A

proceeding

like

this

one

threatens to tear that trust apart.
For the foregoing reasons, the judgment is affirmed.

AFFIRMED

*

Our ruling on the prosecutor’s comments makes it
unnecessary to consider Bennett’s claim that the seating of a
racially biased juror violated his right to an impartial jury.
19