First, the not good news: the United States Supreme Court granted certiorari to review the Third Circuit's grant of relief to George Banks because of a jury instruction and verdict slip that jurors were reasonably likely to believe required them to unanimously agree to the existence of mitigating circumstances before any of them would be permitted to consider that evidence as a basis to spare the defendant's life. The Court granted review to consider, (1) whether its 1988 decision in Mills v. Maryland -- that an instruction that misleads the jury into believing they must be unanimous as to mitigation violates the Eighth and Fourteenth Amendments -- constituted a new rule that law that cannot be applied in habeas corpus proceedings to cases like Banks' that had become final on direct appeal before Mills was decided; and (2) if Mills is not a new rule of law, or fits within very limited exceptions to the new rule doctrine, did the instruction and verdict slip actually violate Mills. Report on recent legal decisions in Pa. death penalty cases
By Rob Dunham, Federal Defenders Association, Capital Habeas Unit
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This case, which is not being handled by our office, also presents very technical issues concerning whether and to what extent the Anti-Terrorism and Effective Death Penalty Act (AEDPA) habeas corpus amendments in 1995 affected the new-rule doctrine.
On the good side, there are a bunch of relatively new victories to report. I've prepared black-letter of these cases below. All of them, except for Cuevas (which was decided on direct appeal), are Capital Habeas Unit cases. Kindler was represented by Candian local counsel, Eric Sutton, in the United Nations proceedings.
A. Commonwealth v. Williams (Kenneth), No. 981/1984 (Lehigh C.P. Oct. 17, 2003) (Lehigh, PCRA) (death sentence reversed for sentencing-stage counsel's ineffectiveness in failing to investigate and present mitigating evidence of defendant's "mental problems," including diagnoses of post-traumatic stress disorder, depression, adjustment disorder, and dysthemic disorder; while there was a factual dispute as to the PTSD diagnosis, "it is reasonably probable that the [other diagnoses] would have been sufficient to present a mitigating factor, even if the jury did not credit the diagnosis of PTSD"; penalty-phase relief also granted when trial court improperly prevented defense psychologist from presenting relevant mitigating evidence in the form of expert mental health testimony that the defendant would not pose a future danger if he received a life sentence; court also holds that defendant was denied the proportionality review that was mandated at the time of his appeal when the Lehigh County court erroneously informed the Administrative Office of Pennsylvania Courts that Williams' jury had found one aggravating circumstance and no mitigating circumstances -- sentencing jury had in fact found one mitigating circumstance; PCRA court ordered clerk to provide correct information to AOPC to permit new proportionality review, if necessary).
B. Kindler v. Horn,--- F. Supp. 2d -, 2003 WL 22221208, No. 99-CV-0161 (E.D. Pa. Sept. 22, 2003) (Philadelphia, habeas) (new sentencing hearing granted for prosecutorial misconduct and under Mills v. Maryland as interpreted by Banks v. Horn; jury instruction and verdict slip created reasonable likelihood that jury believed it must unanimously agree to the existence of a mitigating circumstance before the jury was entitled to consider and give mitigating effect to that circumstance; "blatant" prosecutorial misconduct found in sentencing phase where prosecutor improperly vouched for death penalty by stating that he would "argue and present both of the sides" with respect to co-defendant "but I felt from the outset here that I would let you know that the urging [for death] would be done based on the evidence would be against [defendant]"; "By contrasting Petitioner with his co-defendant and arguing in favor of the death penalty as to him alone, it further appears that the goal of the prosecutor was to use Mr. Kindler as a `sacrificial lamb' in order to secure at least one death penalty conviction.").
C. Commonwealth v. Cuevas, 2003 WL 22204801, No. 363 Cap. App. Dkt. (Pa. Sept. 24, 2003) (Monroe, direct appeal) (new sentencing hearing granted for insufficiency of the evidence of 42 Pa. C.S. 9711(d)(14); subsection (d)(14) requires not merely a showing of involvement, association, or competition in the drug trade, it "require[s] the killing be intended to promote appellant's drug activity"; evidence that "appellant was a buyer, not a seller, and . . . had an altercation relating to $20 he may have owed [victim]" was insufficient because "there was no evidence appellant stood to benefit in future drug activity by killing the source of his drugs").
D. Commonwealth v. Yarris, No. 690/82 (Del. C.P. Sept. 3, 2003) (Delaware, successor PCRA/DNA exoneration) (new trial granted following joint petition for post-conviction relief based upon DNA evidence excluding Mr. Yarris as source of semen, blood, and skin-cell DNA in this rape-murder; semen and skin-cell DNA was from same person, and it was neither Mr. Yarris nor the victim's husband).
E. Fahy v. Horn, No. 99-CV-5086 (E.D. Pa. Aug. 26, 2003) (Philadelphia, habeas) (new sentencing hearing granted under Mills v. Maryland as interpreted by Banks v. Horn; jury instruction and verdict slip created reasonable likelihood that jury believed it must unanimously agree to the existence of a mitigating circumstance before the jury was entitled to consider and give mitigating effect to that circumstance; Mills did not announce new rule of law and therefore may be retroactively applied in this case).
F. Judge v. Canada, Communication No. 829/1998, CCPR/C/78/D/829/1998 (U.N.H.R.C.) (Aug. 13, 2003) (Philadelphia, United Nations Human Rights Committee) (Deportation from Canada to the United States of an escaped defendant who had been sentenced to death without ensuring that the sentence would not be carried out violated Article 6, 1 & 2 of the International Covenant on Civil and Political Rights, establishing the right to life as an international human right (Art. 6, 1) and limitations on the use of the death penalty (Art. 6, 2). "For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdictions if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out.").