The opinion of the court was delivered by: Will, District Judge.
Petitioner is seeking habeas corpus relief under Section 2254
of Title 28 of the United States Code. He is presently on parole
from the Illinois State Penitentiary at Pontiac, Illinois, where
he had been serving a fifteen-to-thirty year sentence imposed on
December 13, 1962, by the Circuit Court of Cook County, Chicago,
after he was found guilty by a jury of the offense of murder. The
conviction was affirmed by the Supreme Court of Illinois on
December 1, 1966, where the same arguments advanced by the
petitioner in this action were rejected. People v. Kirk,
36 Ill.2d 292, 222 N.E.2d 498 (1966). The petitioner next sought
relief under the Illinois Post Conviction Act where the action
was dismissed even though the petitioner sought to withdraw the
petition on the ground that the decision of the Supreme Court
made the issues res judicata in the state courts. An appeal from
this dismissal is now pending in the Illinois Supreme Court.
At the outset, a question of great significance to the viability
of the federal system must be dealt with. Are there any
circumstances under which a state prosecutor's closing argument,
albeit highly prejudicial and inflammatory, can deprive a
defendant in a state case of fundamental rights guaranteed by the
federal Constitution? A negative response would answer the
question for all prospective petitioners regardless of the
unfairness that might stem from a highly improper and prejudicial
closing statement. On the other hand, an affirmative response
might require a federal court to sit as a reviewing court of all
trial errors which are generally considered to be strictly
"state" questions, asking itself that most nebulous of questions
— did this error, if error it be, deprive the petitioner of a
Either categorical answer seems unacceptable. There may be a
situation where the closing statement of the prosecutor is so
prejudicial that it does indeed deprive the defendant of a fair
trial. Is such a defendant to be left without a federal remedy?
Does our system of federalism require that the federal government
be strictly limited in its power to overturn decisions, even
though outrageous, made in areas that have been left to the
states by the Constitution? Reviewing errors to see whether or
not the trial was "fundamentally fair," it can be urged, breaks
down the distinction between state and federal courts.
Unaided as we are by a specific ruling either by the Supreme
Court or by this Circuit, conflicting decisions of other circuits
and districts must be examined to see if they provide any
compelling logic. The two Circuit decisions that can be found
ruling specifically on whether statements by a prosecutor to the
jury involve a federal constitutional question are conflicting.
In Setser v. Welch, 159 F.2d 703 (4th Cir. per curiam 1947),
cert. denied 331 U.S. 840, 67 S.Ct. 1510, 91 L.Ed. 1851, it was
held that the allegedly prejudicial language used by a prosecutor
(there a United States Attorney) in an address to the jury is not
a question that can be raised by habeas corpus. In Jackson v.
California, 336 F.2d 521 (9th Cir. 1964), on the other hand, the
court made a determination of whether the allegedly improper
remarks of a state prosecutor did deprive the petitioner of a
fair trial after acknowledging the concept that federal courts
should not sit as reviewing courts of their state counterparts.
In United States ex rel. Chase v. Rundle, 266 F. Supp. 487
(M.D.Pa. 1967), the court stated that "absent substantial
prejudice the remarks of a prosecuting attorney in his opening
statement cannot be raised by habeas corpus," and then went on to
determine whether there had been "substantial prejudice."
As with most difficult legal questions, the easiest way is to
follow the traditional path of a general rule with exceptions.
The general rule is that federal habeas corpus is not a proper
proceeding in which to attack errors that are made at a state
trial. Frank v. Mangum, 237 U.S. 309, S.Ct. 582, 59 L.Ed. 969
(1915). However, if these errors are so grievous as to constitute
a denial of fundamental constitutional rights, then habeas corpus
may be appropriate. Sampsell v. California, 191 F.2d 721 (9th
Cir. 1951), cert. denied, 342 U.S. 929, 72 S.Ct. 369, 96 L.Ed.
692 (1952); Jackson v. California, supra; United States ex rel.
Chase v. Rundle, supra.
Accordingly, we accept the procedure employed by the Ninth
Circuit, and examine the alleged errors to ascertain whether or
not they made the proceeding so devoid of fairness that it
deprived the petitioner of due process of law. In making such an
analysis, alleged errors in the trial that do not relate to some
specific Constitutional right in the first eight Amendments which
has been "incorporated" into the Fourteenth Amendment must be so
outrageous and so prejudicial as clearly to constitute a denial
of due process.
In the instant petition, five statements made by the State's
Attorney in his closing argument to the jury are singled out as
being inflammatory and prejudicial:
1. "What you have heard is an insult to your
intelligence, and I think you realize that. I am
ashamed to see twelve jurors in this box have to
walk by this witness stand where so much filth, so
many lies, obvious lies, have been spoken. I am
ashamed to see that men that I have looked up to,
professional men who I thought and I feel are
someone I should respect for the fact that they are
professional men, have taken the stand and, I don't
think they were mistaken, I think they tried to
hoodwink this jury." R-1926
2. "I'm ashamed to see these two young defense
attorneys taking the doctrine that Adolph Hitler,
a long time ago, told the people of Germany. He
said if you told enough lies and enough people
told lies, you'd get to believe these lies." R-1927
3. "You heard many things that were said, many of the
questions that were asked of Maggie McMillan, who
is sitting in this courtroom today. You heard about
this Windy City, you heard about these threats, you
heard a lot of filth and trash. Did they back up
those statements as they said they were going to
do? Did you hear anyone testify to these dirty
statements, dirty that they brought out, that she
was a gambler, that she was doing this and that?
No. No you didn't hear a word of that. You also
heard how their star standup witness, Isiaah
Terrell, is such a wonderful man, this man who
they have the audacity to call an officer. That
perjurer wouldn't be qualified to sweep the floors
of this Courtroom. And how he became a Hawk man, I
have no idea, but I will go into that a little
4. "I also want to apologize to the ladies and
gentlemen of the jury for both Mr. Siet and myself,
who forgot to ask them, as did Mr. Siet, `Did you
get paid for your testimony?'" R-1928
5. "The citizens of Chicago scream, we want justice.
They scream, don't let these defendants go. They
ask for law and order. Fortunately you ladies and
gentlemen of the jury have a chance that many
citizens don't have. You have a chance to show a
community on the south side of Chicago that
citizens who sit as jurors, don't tolerate
senseless killing. Ladies and gentlemen, this is a
responsibility which is in your hands. All I can do
is ask, in the name of the ...