                               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         wrote   the
opinion, in which Judge King and Judge Harris joined.


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.
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   separate        penalty       proceeding,    the     state,       with

Solicitor          Donald    Myers      at    the      helm,   emphasized        the     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    this    all-white    jury,       Myers

                                                2
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 mixed-

race 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.    1443.   He     also    labeled          Bennett       a    “caveman,”        a       “mountain

man,”    a   “monster,”        a    “big       old   tiger,”         and    “[t]he           beast    of

burden.” J.A. 1420-44. In addition, Myers intentionally elicited

irrelevant,      inflammatory             testimony       from       one        of   the      state’s

witnesses,      who    recounted          a    dream     in       which    he    was     chased       by

murderous,      black     Indians.             While      cross-examining                a     defense

witness,     Myers      alluded       to       Bennett’s          sexual    partner           as    “the

blonde-headed         lady,”       J.A.       1343-44,    alerting          the      jury      to    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



                                                 3
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      the    “caveman”        comment   “merely      descriptive”          of

testimony     that     Bennett     had   twice      pulled    someone     else      by   the

hair.   Id.     at    289.     The    United       States    Supreme      Court     denied

certiorari.       Bennett     v.     South    Carolina,      549   U.S.    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

                                              4
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).




                                       5
                                            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

                                            6
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 second-

guess 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      “so    infected    the   trial     with

                                            7
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

                                      8
this    reason,   the    Supreme    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

                                       9
stock-in-trade.       But     the     remarks        challenged           here      were

unmistakably      calculated        to         inflame     racial         fears     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    delivered       a    final     summation       in     which    he

alternated     between      characterizing         Bennett    as     a     primitive,

subhuman    species   and    a   wild,     vicious       animal.    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]

                                          10
      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   two    of        [Bennett’s]    past    violent      incidents”

because    the   prosecutor       made     the   remark    while    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,    the    prosecutor’s         comments    mined      a    vein    of

historical    prejudice      against       African-Americans,       who       have   been

appallingly      disparaged       as    primates     or   members   of    a    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.




                                           11
       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    quotation     marks       omitted).         Likening     Bennett      to    King

Kong   in   particular    stoked       race-based         fears     by    conjuring      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      of   this    case    do    not    leave      any      doubt    that   the

challenged     comments     were       appeals       to    racial        prejudice,      not

innocent     descriptions       of     Bennett’s         size   and       strength.      The

prosecutor    easily     could       have    highlighted          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

                                            12
the    earlier     mixed-race        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    remarks.        The   capital       sentencing        determination

“requires    the     individual        jurors       to    focus      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      of    .   .   .   ‘[those]       compassionate          or    mitigating

factors    stemming      from    the    diverse         frailties     of     humankind.’”

Caldwell, 472 U.S. at 330 (quoting Woodson v. North Carolina,

428 U.S. 280, 304 (1976) (plurality opinion)). The prosecutor’s

                                             13
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    and    had     been   assaulted    by   Bennett    several      years

earlier.      The    prosecutor      asked     Gilbert,     “Do   you   have    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

                                         14
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    Hardee,     you     remember         her?”        J.A.    1343.     Collins

responded,       “The   real   big       lady?”       Id.    Myers       answered,      “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

                                            15
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

                                             16
of   the   finest        advocates          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          before       an     all-white         jury,      however,     the

prosecutor         suddenly          and    tellingly          took    a    different,       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    had        come   dangerously          close      to   crossing     the

constitutional           line    even       before       his    closing      argument       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

                                                  17
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

                                              18
[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
