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BRELAND v. FORD5/3/1996
1, 54 So.2d 492, 497; Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So.2d 619."
264 Ala. at 544, 88 So.2d at 174-75.
The trial court made no attempt to eradicate the harm caused by the racially inflammatory
remarks in this case. However, even if the trial judge had made such an attempt, a new trial would have been required. The jury heard the remarks of the plaintiff's counsel, and those remarks ineradicably tainted the trial as a result. The legal system must maintain the appearance of justice as well as the substance of justice. The trial judge failed to uphold the appearance of justice, by allowing a party to make racially inflammatory remarks, by not attempting to eradicate their effect, and by not granting a new trial upon the defendant's motion. For all these reasons, I would grant the application for rehearing and would reverse the order of the trial court denying the defendant's motion for a new trial.
In my dissent of May 3, 1996, on original deliverance, I said the following about the closing argument:
"The circumstances surrounding the trial of this case were such that an appeal to racial prejudice would have been especially prejudicial to the defendant. Therefore, I must dissent on the grounds that the comments made by the plaintiff's attorney in closing arguments were so grossly improper that they were beyond eradication by the trial judge."
693 So.2d at 404.
The majority, on rehearing, has extended the opinion, and in the words of the extended opinion, has "repeat . . . and parse [counsel's argument], segment by segment, to illustrate why none of this argument appeals to racial passion, as the dissenting Justices propose."
My views on the prejudicial effect of the argument are not changed, and I question whether the majority should engage in a laboratory analysis of it, as it does in the extended opinion, especially in view of the principle of law that "we . . . must consider the argument as it appears in the record devoid of counsel's intentions in connection therewith." Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 448, 268 So.2d 725, 730 (1972).
MADDOX, Justice (dissenting).
HOOPER, Chief Justice (dissenting).
MADDOX, Justice (dissenting).
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