This case is surprising in this day and age since it presents, on appeal by the State from a conditional grant of the writ of habeas corpus in a proceeding under 28 U.S.C. Sec. 2254, the question whether racially prejudicial remarks by a prosecutor in summation constitutionally infected the conviction of appellee. District Judge Motley held that they did so, that there was not harmless constitutional error, and accordingly granted the petition for the writ unless the State within 60 days retried petitioner, the appellee here. Her opinion is printed at 350 F. Supp. 990 (S.D.N.Y.1972). We agree and affirm.

On a rainy evening, December 11, 1965, three men robbed a Niagara, New York, delicatessen. In the process a robber wearing a beige trench coat, a black beret and a mask covering his mouth scooped up $132 from the cash register, hit a customer of the store with a gun, knocking him unconscious, and took his wallet and money. This robber ran out of the store, pursued by two policemen, but escaped. Meanwhile, two other officers came on the scene in a police car, and after briefly losing sight of the suspect, saw petitioner, Haynes, and arrested him. He was wearing a beige trench coat and black beret but he had no gun, no wallet and no $132. Two black stockings, one of which apparently fitted the description of the "mask," were, however, found in petitioner's pockets along with $25 in change and $73 in bills, 20 of which were and 53 of which were not in his wallet.

Petitioner was identified at the trial by four witnesses, three who saw him in lineups1 (two of whom said they had known him before the robbery) and one who testified he saw petitioner in front of the store before he put on his "mask." Petitioner's defense was based on an alibi supported by his own testimony, corroborated by three other players, that he had been playing poker and that the coins and bills were winnings. He explained his having the money in assorted pockets by saying that he had kept $17 rent money separately. The socks he and his wife said were put in his pocket when he had bought new gold ones that morning, to match his shirt. That the case was relatively a close one is partially evidenced by the fact that the jury retired at 6:07 p. m. on Friday, March 18, 1966, and returned at 10:42 p. m. with a series of questions concerning (1) the police log's data on the time of the call to the police car from which petitioner was ultimately seen and the time of the pick-up of petitioner; (2) from which of Haynes' pockets the arresting officer took the socks; and (3) the arresting officer's testimony as to mud on the shoes and pants of Haynes, coupled with a request to have the shoes and pants in the jury room. The jury retired at 11:16 p. m. and did not return with its guilty verdict until 12:55 a. m. on Saturday, March 19, 1966.

The appellant exhausted his remedies in the state courts, arguing in Point II of his brief to the Appellate Division of the State Supreme Court, 4th Department, entitled "Prosecutor's Remarks" that "allusions to race or ethnic background" were prejudicial and referring to the summation as being "replete with racial overtones, undertones, and explicit statements." Indeed, the State did not brief the exhaustion point here.2

What, then, were the remarks of the prosecutor to the all-white Niagara County jury, on which the trial court based its finding of a denial of due process? We repeat them here in extenso as we believe it necessary for better understanding of our decision (all quotations are from Volume 10 of the transcript of petitioner's trial):

. . . I know that [petitioner's counsel] Mr. Gold, in his experience, he has dealt with people for many years of the colored race. There is something about it, if you have dealt with colored people and have been living with them and see them you begin to be able to discern their mannerisms and appearances and to discern the different shades and so on. Any of you that have never been exposed to them would never be able to. I don't see, I have been exposed to some degree, that isn't what I am getting at. What I am getting at is those who are living with them, dealing with them, and working with them in a sense, have a much better opportunity to evaluate what they see to identify what they see. (27-28.)

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Now, counsel for the defendants told you, and Attorney Gold is probably as well versed with the colored race as any man I know in the legal profession. He knows their weaknesses and inability to do certain things that maybe are commonplace for the ordinary person to do or remember or know certain things. (38.)

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. . . Here she is, a young girl about 13 [referring to a prosecution witness who was black]. And I know that you have recalled this young McCray girl who is the tall sister of Jones. That young lady [also black] had her first baby at 15. She is now married at 16 with another baby on the way. The maturity among these people becomes quite evident quite quickly. Here is a young girl interested in all the young-or ought to be, in the young men of her circle of friends or environment . . . (40-41.)

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It gets confusing when you talk to some of these youngsters like that because they don't express themselves as clearly as you and I might possibly be able to do so. (41-42.)

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Eyvonne Martin true enough is 13 years old. Again I point to the fact she is a colored girl. She knows her own. She knows the young bucks in that neighborhood and she knew Terry Cox [petitioner's codefendant]. (43-44.)

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I know that it is the custom and the habit of many colored people to try and straighten their hair. I don't know what the reason for it is. But in any event it is not uncommon to observe colored people with a heavy pomade grease or hair dressing in their hair. It is also not uncommon to find colored people with somewhat exotic hair-dos, male and female. Most of the exotic hair-dos take the form of a skull cap type hairdo, plastered down. You may have seen this. Others are taking the trend of the current day, of the long hair. It seems to be a fad. May I say that I cannot participate in that. The tendency on the part of these faddists, if I can call them that, is that they use this black bandana type, you have seen it, to hold the hair down. The effect of this grease is to straighten that hair out. And that would bring the hair down. The long hair as described by Mrs. Balon, being pulled down, plastered down on the side of the head and by Investigator Demler, who described it as long. This is not the type of sideburns that we usually think of when we think of sideburns. It probably operates much as bangs operate on a lady. They do not grow out of your forehead. They come off the top and dress down. . . . (79-81.)3

We agree with the district court that the prosecutor's remarks introduced race prejudice into the trial and thereby denied petitioner his constitutional right under the due process clause to a fair trial. There can be no doubt that the prosecutor's remarks would have required reversal in a federal court appeal under the decisions of this and other federal courts. See United States v. Grey, 442 F.2d 1043 (6th Cir.), cert. denied sub nom. Williams v. United States, 400 U.S. 967, 91. S.Ct. 380, 27 L. Ed. 2d 387 (1970).4 See also United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972); United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir. 1970). Skuy v. United States, 261 F. 316 (8th Cir. 1919), contained a prosecutorial statement comparable in its instillation of racial prejudice with this one; in that case the prosecutor implied that the testimony of one Christian soldier should be believed even though disputed by four Jewish witnesses simply because of the different religious affiliations of the witnesses. In both Skuy and Grunberger, supra, reversal was had despite a failure on the part of the defendant to object properly (perhaps by virtue of unconscious acquiescence on the part of the defense attorney in the prosecutor's objectionable remarks), and here too defense counsel's failure to object does not dispose of the issues raised by this habeas petition. This case goes well beyond the classic United States v. Antonelli Fireworks Co., 155 F.2d 631, 637-638 (2d Cir.), cert. denied, 329 U.S. 742, 67 S. Ct. 49, 91 L. Ed. 640 (1946), where the prosecutor's closing statement was an exhortation in wartime to the jury as patriotic Americans in disparagement of the Italian-American defendant. Judge Frank's eloquent dissent, it will be recalled, argued among many other things that a prosecutor "should not be permitted to summon that thirteenth juror, prejudice." 155 F.2d at 659.5 See also Annot., 45 A.L.R. 2d 303, 322-68 (1956); ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function Secs. 5.8(c) and (d), commentary at 128-29 (1970).

Racial prejudice can violently affect a juror's impartiality and must be removed from the courtroom proceeding to the fullest extent possible. See generally G. Allport, The Nature of Prejudice (1955); B. Bettelheim & M. Janowitz, Social Change and Prejudice (1964); S. Blackburn, White Justice; Black Experience Today in America's Courtroom (1971); J. Kovel, White Racism, A Psychohistory (1970). It negates the defendant's right to be tried on the evidence in the case and not on extraneous issues. ABA Standards, supra, at 129. More than just harm to the individual defendant is involved, however. For the introduction of racial prejudice into a trial helps further embed the already too deep impression in public consciousness that there are two standards of justice in the United States, one for whites and the other for blacks. Such an appearance of duality in our racially troubled times is, quite simply, intolerable from the standpoint of the future of our society.

Proceeding from the major premise that the remarks of the prosecutor were prejudicial and would have resulted in reversal had they been made in the federal courts, we must inquire whether, as the State seems to suggest, to result in reversal racially biased remarks of a prosecutor in a state court case must be shown to have had a greater probability of prejudice than remarks on a direct appeal in the federal courts.6 In our analysis we shall refer exclusively to federal court decisions which overturned state court decisions on fourteenth amendment grounds.

We commence our analysis of the application of the fourteenth amendment to prosecutorial summations in state courts with a considerable background of cases-none of them involving prosecutor's remarks, to be sure-overturning convictions on fourteenth amendment grounds where racial prejudice was a major factor in the fiber of the trial. Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543 (1923);7 Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932).8 We also draw upon those cases that hold a fair trial to be a fundamental requisite of due process of law. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (judge not impartial); Payne v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958) (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (right to counsel in all felony cases); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963) (televising defendant's confession before trial requires change of venue); Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965) (two deputy sheriffs who testified against defendant supervised jury); Estes v. Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965) (televising and broadcasting of trial); Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1965) (pre-trial and in-trial publicity); Parker v. Gladden, 385 U.S. 363, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1965) (bailiff's improper remarks to jury).

But all the case law is not as significant as the underlying history and purpose of the fourteenth amendment; it was and is centrally concerned with protecting the rights of black Americans in the states particularly in connection with the application of the law. E. g., Loving v. Virginia, 388 U.S. 1, 10, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). In the introductory speech in the debate on that great amendment, Thaddeus Stevens, when he came to discuss the first section which contains the due process and equal protection clauses, led by saying:

I can hardly believe that any person can be found who will not admit that every one of the provisions is just. They are all asserted in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates on one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford "equal" protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried the same way as a white man . . . .

Quoted in 1 Statutory History of the United States Civil Rights 222-23 (B. Schwartz ed. 1970).

This is of course the point where the due process and equal protection clauses overlap or at least meet9-where a criminal trial is affected by racial prejudice, either in the underlying procedure, the atmosphere surrounding the trial or otherwise. Thus, the equal protection cases are not altogether inapposite. Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1879) (jury selection discriminatory); Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935) (systematic exclusion of Negroes from grand and petit jury lists); Johnson v. Virginia, 373 U.S. 61, 83 S. Ct. 1053, 10 L. Ed. 2d 195 (1963) (per curiam) (segregation in the courtroom); Hamilton v. Alabama, 376 U.S. 650, 84 S. Ct. 982, 11 L. Ed. 2d 979 (1964) (discrimination by prosecutor in addressing a black witness by her first name); Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967) (grand jury selection discriminatory); Sims v. Georgia, 389 U.S. 404, 407-408, 88 S. Ct. 523, 19 L. Ed. 2d 634 (1967) (per curiam) (grand and petit jury selection discriminatory); Alexander v. Louisiana, 405 U.S. 625, 92 S. Ct. 1221, 31 L. Ed. 2d 536 (1972) (Negroes excluded from grand jury). If there is anything more antithetical to the purposes of the fourteenth amendment than the injection against a black man of race prejudice-whether in a procedure underlying, the atmosphere surrounding, or the actual conduct of, a trial-so that he, in the words of Senator Stevens, is deprived of the right of "being tried the same way as a white man," we do not know what it is.

Thus, the purpose and spirit of the fourteenth amendment requires that prosecutions in state courts be free of racially prejudicial slurs in argument. The standard for state prosecution in this regard is thus as high as the rigorous standard required of the federal courts by the fifth amendment's due process clause.

But the State argues, citing Buchalter v. New York, 319 U.S. 427, 431, 63 S. Ct. 1129, 1132, 87 L. Ed. 1492 (1943), which in turn quoted Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S. Ct. 236, 242, 87 L. Ed. 2d 268 (1942), that "it is not asking too much that the burden of showing essential unfairness . . . be sustained not as a matter of speculation but as a demonstrable realty." At least since In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955) (one man judge-grand jury unconstitutional), however, "A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness." (Emphasis supplied.) We cannot of course know what was in the minds of the jury's members when they came to pass upon Haynes' guilt or innocence. Taken individually, probably each would have denied any prejudice. Cf. United States v. Antonelli Fireworks Co., supra, 155 F.2d at 655 n. 35 (Frank, J., dissenting). But we are totally satisfied that there was a strong probability of prejudice here, and probability of prejudice we believe to be the correct test when the evidence of guilt as in this case is not overwhelming. We cannot require that each juror now be examined as to his state of mind at the time of trial. Indeed, these jurors could not, the cases say, impeach their own verdict, even if they had recognized their own prejudice when they saw it. See United States ex rel. Owen v. McMann, 435 F.2d 813, 818-819 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S. Ct. 1373, 28 L. Ed. 2d 646 (1971). It is the cold restatement of the remarks in the record, without inflection or intonation, on which we must rely to determine the probability of prejudice and here we find it.

The State also contends that the statements of the district attorney were "engendered by the blatant racial appeals of counsel for petitioner and were intended for the rehabilitation of the State's own witnesses," even though it concedes that the prosecutor's remarks were "inappropriate." The State fails to refer us to any comment by Haynes' attorney that was a "blatant racial appeal."10 Some of the prosecutor's remarks were undoubtedly, however, in rehabilitation of the State's witnesses; defense counsel had quite correctly referred to the 13-year-old girl Eyvonne Martin as a witness who changed her story in a number of different ways and whose memory (since she didn't remember the name of the street two blocks from where she lived) was unreliable. The white eyewitness's testimony he also attacked partly on the basis that it is difficult for white people to identify "a colored person." But rehabilitating Eyvonne Martin by allusions to the early maturity of "these people"11 and her knowledge of "her own . . . the young bucks in that neighborhood"12 coupled with a reference to the weakness and inability of "them" to do or know things that are "commonplace for the ordinary person" (emphasis supplied) to know or do served to dichotomize the people in the courtroom, to divide them into black and white. Cf. Moseley v. State, 112 Miss. 854, 858, 73 So. 791, 792 (1917) (". . . This injection of race questions into court trials has been uniformly condemned by this court."). The argument of defense counsel relating to identification could justify in reply reference to the particular defendant's peculiar features which made him especially noticeable to a white person-such as his "sideburns"-a reference that was made; it does not justify, in our opinion, the repeated references to "colored people" as a group trying to straighten their hair, or wearing "exotic hairdos," or having sideburns that are not the type "that we usually think of when we think of sideburns." In other words, answer to the identification argument did not require jurors to view "colored people" as an entity separate and apart from themselves, with the natural concomitant that the defendants would be viewed by the jury members as coming from a distinct, a different community from themselves. Cf. State v. Hinton, 210 S.C. 480, 486, 43 S.E.2d 360, 361 (1947) ("I do not ask you to convict the defendants merely because a white man was killed by a negro" held reversible error). Provocation by the defense may be considered as a factor in weighing the prosecutor's conduct in summation. See United States v. Benter, 457 F.2d 1174, 1176 (2d Cir.), cert. denied, 409 U.S. 842, 93 S. Ct. 41, 34 L. Ed. 2d 82 (1972); see also Buchalter v. New York, supra, 319 U.S. at 431, 63 S. Ct. 1129. But see United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S. Ct. 637, 15 L. Ed. 2d 533 (1966). But here there was no provocation, and, while the prosecutor could legitimately reply to the identification argument by the defense, his reply went beyond the bounds of propriety, passing those of due process, here.

Finally the State argues that there was harmless constitutional error13 in the sense that the evidence of guilt was so overwhelming that Haynes could not have been prejudiced by any of the prosecutor's remarks. Cf. United States v. Benter, supra, 457 F.2d at 1178; United States v. Frascone, 299 F.2d 824, 828 (2d Cir. 1962), cert. denied, 370 U.S. 910, 82 S. Ct. 1257, 8 L. Ed. 2d 404 (1963). The short answer to this argument is that our review of the record satisfies us that the evidence was by no means so clear as the prosecution would have it. The identification of petitioner was not overwhelmingly persuasive-the black beret he was wearing was not uncommon in the neighborhood and many raincoats are "beige." Petitioner was not found with the robber's gun or customer's wallet or money in an amount similar to that taken. Petitioner presented, moreover, an alibi supported by the testimony of several witnesses. The jury, moreover was not so ready to convict, since it took several hours of deliberation before guilty verdicts were brought back.14 We totally disagree with the State's contention in the next to concluding sentence in its brief, that "It is clear from the evidence at trial that petitioner had a hopeless case." Rather, we think, the probability of prejudice was sufficiently great, and the case sufficiently close, that the defendant, appellee here, should be given a new trial as ordered by the district court under any applicable "harmless error" standard. Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Accordingly we need not decide whether jury verdicts tainted by racially prejudicial statements by the prosecutor should be measured by the harmless error test, but rather should receive automatic reversal. Racially prejudicial remarks are, however, so likely to prevent the jury from deciding a case in an impartial manner and so difficult, if not impossible, to correct once introduced, that a good argument for applying a more abolute standard may be made. See Note, Harmless Constitutional Error: A Reappraisal, 83 Harv. L.Rev. 814, 820-24 (1970).

Thus, we affirm the judgment below.

Judgment affirmed.

I concur in the opinion of Judge Oakes. I cannot agree with Judge Hays that the comments of the prosecutor here, while admittedly vulgar and revolting, do not rise or perhaps fall to the level of unconstitutionally prejudicial conduct. The majority opinion sets forth in detail the demeaning comments of the prosecutor who was trying black men before an all white jury. In light of his prior comments, the closing sentences of the summation to the jury constitute a blatant appeal to racial prejudice.

We cannot take these people out of the community unless you twelve people sitting in judgment on these matters decide these things have got to stop. I ask you to find these defendants guilty on all counts of this indictment and you can go home with the clearest conscience that you have ever had.*

There is no doubt after reading the entire charge that "these people" are not simply these defendants but these black people. There is no room for this in a state court or in a federal court and the paucity of direct authority for finding it constitutionally offensive, is attributable hopefully to the fact that prosecutors today rarely, if ever, seek to introduce the poison of prejudice into the deliberative processes of the jury. I am persuaded that this was done here and that this petitioner was not simply a member of a race which was viewed with contempt but that he was denied due process.

I reluctantly dissent.

Unlike the majority I can find no suggestion in what the prosecutor said during the trial that, for example, blacks are more likely to commit crimes than whites or that black witnesses are less reliable than white. What I find is such dismal (and untrue) cliches as that all blacks look alike or that all black girls are sexually promiscuous or that black hairdos are particularly unattractive.

Influenced by understandable outrage at the nauseating remarks of the prosecutor, my colleagues have been led to disregard the difference between revolting vulgarity and unconstitutionally prejudicial conduct.