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A federal judge has overturned the death sentence in one of Northampton County, Pa.’s most notorious murder cases after finding that jurors were given faulty instructions and a misleading verdict slip that could have led them to believe they had to be unanimous in finding any “mitigating circumstances” that would support voting against death. The May 16 decision by U.S. District Judge Anita B. Brody, of the Eastern District of Pennsylvania, in Henry v. Horn is part of a growing trend in which the federal courts are upholding Pennsylvania murder convictions, but overturning death sentences due to so-called Mills violations. In its 1988 decision in Mills v. Maryland, the U.S. Supreme Court struck down a Maryland statute that required jurors to be unanimous before finding any mitigating circumstance. Pennsylvania courts quickly realized that Mills required a rewriting of the state’s standard jury instructions. By 1990, Pennsylvania juries were being instructed that unanimity was required only for aggravating circumstances, and that any individual juror had the right to stand alone in finding a mitigating circumstance that would support a vote against death. But for dozens of inmates already on death row, Mills served a different purpose; it was a powerful issue to raise on appeal. The story of those appeals is a study in contrasts. While the Pennsylvania Supreme Court has granted relief on Mills claims in only a few cases, the federal courts have recently shown a much greater tendency to do so. Convicted cop killer Mumia Abu-Jamal’s only winning claim was under Mills. Lawyers who watch death penalty litigation in Pennsylvania were hardly surprised since Abu-Jamal was the third Pennsylvania death row inmate in 2001 to win a new sentencing hearing on the basis of a Mills violation. And according to an appellate brief filed by the Pennsylvania attorney general’s office, there are at least 30 more similar cases in the federal pipeline in which the Pennsylvania Supreme Court has rejected a Mills claim when affirming a death sentence. In August 2001, U.S. District Judge John R. Padova, of the Eastern District of Pennsylvania, overturned Richard Hackett’s death sentence after finding that the Pennsylvania Supreme Court’s analysis of the Mills claim in his case was an “unreasonable” application of federal law. In October, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals also found a Mills violation when it overturned George Banks’ death sentence for 12 murders in Luzerne County, Pa. Remarkably, the opinion in Banks by 3rd Circuit Judge Marjorie O. Rendell quoted extensively from Padova’s opinion in Hackett, strongly suggesting that the appellate court is poised to uphold his decision when it comes up for review sometime this year. The Luzerne County district attorney’s office urged the appellate court to rehear the Banks case en banc, saying the 12 death sentences imposed on Banks had been “erased through the retroactive application of a federal rule that did not even exist until 1988.” The Pennsylvania attorney general’s office joined that request by filing an amicus brief that said the panel erred because Mills was handed down after Banks had already completed his direct appeal. In the brief, Assistant Executive Deputy Attorney General Robert A. Graci argued that if the Banks decision stands it will “directly impact at least 30 cases in which the Pennsylvania Supreme Court rejected Mills challenges.” Graci argued that the federal courts should be more deferential to the Pennsylvania Supreme Court, especially since it has found valid Mills violations in three cases, and its analysis of the issue should not be labeled unreasonable. But the 3rd Circuit refused to grant rehearing and noted that only one of the court’s 12 active judges, Chief Judge Edward R. Becker, had voted in favor of reargument. BRODY JOINS TREND Now Judge Brody has joined the trend with a 54-page decision that faults the Pennsylvania Supreme Court for failing to apply Mills and its progeny properly. Brody’s decision begins with an account of Josoph Henry’s crime and the state court proceedings that led up to his death sentence: In the early morning hours of April 5, 1986, Henry entered the dormitory room of a fellow Lehigh University student, Jeanne Ann Clery. While he was in the process of burglarizing the room, Clery woke up. To prevent her from identifying him, Henry attacked Clery in a way that prosecutors later described as torturous. Bite marks were found on her face and breasts, and there were bruises over most of her body. Henry also raped and sodomized Clery before manually strangling her. Police later found numerous items in Henry’s room that had been stolen from Clery and her roommate. Henry admitted his role in Clery’s death to several of his friends and roommates. At trial, Henry didn’t dispute the charges, but instead attempted to defend himself by raising an insanity defense. But after several psychiatrists had testified for both the prosecution and the defense, the trial judge granted the Commonwealth’s demurrer and removed the issue of insanity from the jury. The jury convicted Henry of first-degree murder, rape, involuntary deviate sexual intercourse, indecent assault, burglary, theft, robbery and aggravated assault. Following a three-day penalty hearing, the jury sentenced Henry to death. Ever since, Henry has waged a losing battle to get a new trial or at least a new sentencing hearing — until now. Judge Brody rejected 13 out of Henry’s 14 claims, but found that his Mills claim was nearly identical to the claim made in Banks. Brody found that when the Pennsylvania Supreme Court addressed Henry’s Mills claim, it rejected it on the grounds that it was no different from two previous cases in which the high court had denied relief. But those two cases — Banks and Frey — have since been overturned by the 3rd Circuit. “The Pennsylvania Supreme Court’s reliance on its own precedents … is not sufficient to render its application of Mills objectively reasonable,” Brody wrote. Brody found that the 3rd Circuit’s decision in Banks “virtually compels the conclusion that the Pennsylvania Supreme Court’s opinion [in Henry's case] involved an unreasonable application of Mills.” When the Pennsylvania Supreme Court reviewed Banks, it held that the jury instruction was constitutional because it quoted from the language in the death penalty statute. On habeas review, the 3rd Circuit concluded that “the Pennsylvania Supreme Court ruled that there was no Mills violation without ever really applying the teachings of Mills.” Brody found that in Henry’s case, the Pennsylvania Supreme Court “conducted an almost identical analysis.” The analysis was “unreasonable,” Brody found, because “by simply relying on its precedents of Commonwealth v. Banks and Commonwealth v. Frey, and failing to examine the effect of the jury instructions and verdict slip upon the jury in Henry’s sentencing trial, the Pennsylvania Supreme Court failed to apply the teachings of Mills. Tackling the issue herself, Brody found that the jury instructions and verdict slip in Henry’s case violated Mills by “permitting the jury to infer that the unanimity requirement applied to both the aggravating and mitigating circumstances.” The jury instructions, she noted, “emphasized the importance of a unanimous finding in close proximity of the mitigating circumstances clause. In Banks, Brody said, the 3rd Circuit found that “this created a sound bite that was likely to stick in the minds of jurors and convince them that they had to find mitigating circumstances unanimously.” The Banks court also noted that the instructions emphasized the difference between the relevant burdens of proof relating to aggravating and mitigating circumstances, but remained silent with regard to the different unanimity requirements. Brody also found that the verdict slip used in Henry’s case “suggested a need for unanimity to the jury.” The “lead-in language” on the slip used the phrase “We the jury have found unanimously,” before the section in which the jury was to check off both the aggravating and mitigating circumstances it found. Such a verdict slip exacerbates the problems created by the faulty jury instructions, Brody said, because it creates “a strong impression that mitigating circumstances needed to be found unanimously.” Henry was represented by Assistant Federal Defenders Robert Brett Dunham, Billy H. Nolas, Matthew Lawry and Yvonne Bradley. Northampton County District Attorney John M. Morganelli argued the case for the commonwealth.

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