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Under orders from the U.S. Supreme Court to address an issue it had skipped over, the 3rd U.S. Circuit Court of Appeals has reaffirmed its October 2001 decision to overturn the death sentence of a Pennsylvania man convicted of 13 murders and held that the case law he relied on must be applied retroactively. The decision in Banks v. Horn, holding that the U.S. Supreme Court’s 1988 decision in Mills v. Maryland should be applied retroactively, directly affects dozens of inmates on Pennsylvania’s death row who are raising similar claims. “We hold that Mills did not announce a new rule of constitutional law for retroactivity purposes, and accordingly that our application of Mills on our habeas review of Banks’ sentence was completely proper,” 3rd Circuit Judge Marjorie O. Rendell wrote in an opinion joined by Judge Jane R. Roth. In so holding, Rendell noted that the 6th U.S. Circuit Court of Appeals has also concluded that Mills must be applied retroactively; the 5th and 8th Circuits have both held that Mills announced a new rule and therefore cannot be applied retroactively. In its October 2001 decision, the 3rd Circuit had held that George Banks was entitled to a new penalty phase because the combination of faulty jury instructions and a confusing verdict form might have led some jurors to believe that they had to agree unanimously on any “mitigating” circumstance before they could vote against the death sentence. The unanimous three-judge panel concluded that such faulty jury instructions violated the Supreme Court’s decision in Mills. But the U.S. Supreme Court vacated the decision and ordered the 3rd Circuit to address the threshold question of whether Mills should be applied retroactively. Now, by a 2-1 vote, the 3rd Circuit has ruled that Mills may be applied retroactively because it did not announce any “new rule” of law. But in a concurring opinion, 3rd Circuit Judge Dolores K. Sloviter said she believed that Mills did announce a new rule. However, Sloviter said, Banks’ case was unique because the Pennsylvania Supreme Court had allowed him to raise the Mills issue in his Post-Conviction Relief Act petition. “The Pennsylvania Supreme Court considered the Mills claim on the merits,” Sloviter wrote. Sloviter said the rules on retroactivity are designed to foster respect for the state courts in the interest of federalism and comity by prohibiting the federal courts from granting relief on an issue that arose after the defendant completed his direct appeals in the state courts. But since Pennsylvania allowed Banks to raise the Mills issue in his second round of state court appeals, Sloviter said, those concerns evaporated. “In this case, because of the application of Pennsylvania’s unique relaxed waiver doctrine in capital cases, the Pennsylvania Supreme Court not only had the first opportunity to review Banks’ jury instructions, verdict slip, and jury poll in light of Mills, but exercised that opportunity,” Sloviter wrote. In Mills, 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. Although the Pennsylvania Supreme Court has granted relief on Mills claims in only a few cases, the federal courts have shown a much greater tendency to do so. Convicted cop killer Mumia Abu-Jamal’s only winning claim was under Mills, and he 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. After the 3rd Circuit overturned Banks’ death sentence, the Pennsylvania attorney general’s office joined the Luzerne County district attorney’s office in urging the appellate court to rehear the case en banc. In an amicus 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. The 3rd Circuit first refused to reconsider the case, but then found that it had no choice when the U.S. Supreme Court handed down a decision in June 2002 that ordered the 3rd Circuit to consider the retroactivity of Mills. Because Banks’ conviction became final in October 1987 — eight months before the Supreme Court issued its decision in Mills — it would not benefit Banks unless it was applied retroactively. Rendell found that under the seminal case for deciding retroactivity, Teague v. Lane, Mills was not new, but instead was an expansion of a line of cases in which the Supreme Court repeatedly insisted that juries in death penalty cases must be allowed to consider any mitigating evidence the defendant wants to present. Although the Supreme Court has never clearly defined how to decide whether a case announces a new rule, Rendell found that the justices have called for a “reasonable jurist” standard in which courts must decide whether a reasonable judge would have predicted the result. After reviewing the legal landscape in place at the time, Rendell concluded that Mills was just such a case. “We find ourselves unable to construct any analytic framework, consistent with the legal landscape, under which Mills could have come out differently … . A failure to decide Mills as the court in fact decided it would not just have taken an ‘illogical’ or ‘grudging’ application of [prior cases], it would have taken a completely untenable one. Any reasonable jurist ‘would have felt compelled’ to decide Mills accordingly,” Rendell wrote. The Mills decision, Rendell noted, “is replete with references to controlling precedent.” As a result, Rendell concluded that “the relevant holding in Mills, then, was merely its acknowledgment of a conclusion already required by the governing constitutional rules: that if a jury instruction and verdict form, because of its unanimity requirements, precluded juror consideration of any and all mitigation evidence, the resulting death sentence would be unconstitutional.”

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