dissenting:

I dissent from the denial of petitioner’s motion for rehearing en banc in this case. Using either the Caldwell v. Mississippi, — U.S. -, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), or the Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc), standard,1 Darden is entitled to habeas corpus relief due to the prosecutor’s closing argument at the guilt/innocence phase of his trial.2

No one, not even the State, as the district court noted, has ever asserted the arguments given by the prosecutors in this case were anything but improper. Darden v. Wainwright, 513 F.Supp. 947 (M.D.Fla. 1981). The magistrate in this case concluded: “I am convinced ... that the jury was prejudiced against Darden by the argu*667ment.” Under the new Brooks test, prejudice is the key element that a petitioner must demonstrate.

The most important factor in this case is the evidence the State presented against Darden. The evidence against Darden was far from overwhelming. Essentially, the State’s ease hinged on the identification of Darden by two eyewitnesses, the victim’s wife and a young boy employed part-time by the victim. There was very little corroborating evidence. Darden at all times denied any involvement in the crime. Furthermore, as I argued in my dissent to the original panel opinion, the eyewitness identifications were conducted, at the very least, in a highly suspect manner. Darden v. Wainwright, 699 F.2d 1031 at 1040-41 (11th Cir. 1983) (Clark, J., dissenting). The closing arguments in numerous improper instances emphasized the reliability of eyewitness identification testimony, the lack of credibility of Darden as well as his “animal” nature, and stressed that death was the only sentence that would protect the public.

Using the Brooks test, the strength of the evidence against the accused is a factor in determining whether the argument exceeded constitutional limits.3 It would seem that the evidence here is weaker than in any of the four eases recently decided by the en banc court. The argument is as egregious as any. Thus, it would seem that the “but for” or prejudice test of Brooks has been satisfied in this case. Certainly it cannot be said that the argument had no effect on the sentencing decision. See Caldwell, supra, 105 S.Ct. at 2646. Therefore, I dissent.

At the request of one of the members of the en banc court, the court has been polled on the petition for rehearing addressed to the en banc court. Less than a majority of the en banc court, and less than a majority of the judges in regular active service, have voted in favor of the petition. The petition for rehearing is, therefore, DENIED.

At 9:00 a.m. Tuesday, September 3, 1985, the mandate will issue and the stay of execution heretofore and presently in effect shall terminate.

dissenting:

Because Darden’s prosecutorial misconduct claim has not been evaluated under current legal standards (Caldwell v. Mississippi, — U.S.-, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc)), I dissent from the denial of rehearing.