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A federal judge has overturned the death sentence of Henry Fahy, a Philadelphia man convicted of raping and murdering a 12-year-old neighbor in 1981, after finding that the jury instructions and verdict slip used during the death penalty phase of his trial were confusing. In her 127-page opinion in Fahy v. Horn, Senior U.S. District Judge Norma L. Shapiro found that the instructions and 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. Shapiro found that the jury instructions used in Fahy’s trial were nearly identical to the faulty instructions that led the 3rd U.S. Circuit Court of Appeals to overturn the death sentence of George Banks who was convicted of 13 murders. In Banks v. Horn, the 3rd Circuit concluded that the jury instructions ran afoul of the U.S. Supreme Court’s 1988 decision in Mills v. Maryland, which 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, the Mills decision added a significant claim 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.” The 3rd Circuit refused to grant a rehearing before the full court, but the U.S. Supreme Court later ordered the 3rd Circuit to address an issue it had skipped over — whether Mills should be applied retroactively. In January 2003, the 3rd Circuit reaffirmed its ruling, holding 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.” Now, applying the Banks decision, Shapiro has ruled that Fahy’s death sentence, too, must be overturned. “After considering the jury charge and verdict sheet from Fahy’s trial, there is a reasonable likelihood that the jury applied the challenged instruction in a way that prevented the consideration of constitutionally relevant evidence,” Shapiro wrote. Philadelphia Assistant District Attorney Thomas Dolgenos argued that Shapiro shouldn’t even consider any of Fahy claims in his federal habeas petition because he had waived his rights to pursue any further appeals in 1996 when he announced in open court that he wanted to end his appeals. The 1996 hearing before Philadelphia Common Pleas Judge Albert F. Sabo was prompted by Fahy’s letter to the state Supreme Court that asked for his appeals to be withdrawn. The justices ordered Sabo to conduct an inquiry to determine if Fahy understood the rights he was giving up. Fahy told Sabo that he wanted his lawyers to drop his appeals, saying “I have been on death row since 1983. Forgive me. I know you all mean well. It’s just I think your energy could be well spent on someone who is, who is ready to receive it. There is no use in giving it to me when I don’t want it.” But Shapiro concluded that Fahy had not “knowingly and intelligently” waived his appeals because his decision was the result of coercion. Fahy testified before Shapiro that the real reason he had decided to forego his appeals because he was repeatedly abused and threatened by guards — including one who was related to the girl he murdered — whenever he was transported from prison to court for a hearing on one of his appeals. Fahy said he tried to tell Sabo about the abuse, but that the judge would not listen. He told Shapiro that he was thinking: “if I could talk to Sabo or someone in the authority figure off the record and let them know what was going on, that I wouldn’t have to waive my appeals as I did. And when Sabo told me that I couldn’t speak to him off the record privately, there was nothing else I could do.” Shapiro concluded that Sabo “did not care to hear, much less consider, the reasons underlying Fahy’s request for more time.” As a result, Shapiro concluded that Fahy’s waiver of his appeal rights was not voluntary. “It is impossible to know if the coercive nature of the colloquy proceedings colored Fahy’s actions; however, the evidence establishes that Fahy either was, or believed he was, improperly induced to waive his rights,” Shapiro wrote. Shapiro found that Fahy was beaten while in a City Hall holding cell in 1981 — an experience that a psychiatrist described as scarring Fahy so deeply that it triggered a post-traumatic stress reaction. Fahy was also threatened by guards, Shapiro found, including one who “shared a last name with … Fahy’s victim.” Fahy testified that he knew the guard and his family wanted him dead, and that his fears were heightened following the murder of his own daughter when he was asked by a guard during a trip from prison to court whether he had “other children.” “This, to Fahy, was a clear indication that the lives of his other children were in danger should he choose to try and save his own life,” Shapiro wrote. Shapiro found that the evidence “does not establish Fahy actually suffered the myriad forms of ‘abuse’ to which he testified,” but that “it does substantiate Fahy’s claims that he lived in a state of fear and acute agitation caused by the expectation of danger.” And Fahy’s most recent testimony about his desire to pursue his appeals was convincing, Shapiro found. “Fahy’s representations that he never wanted to waive his rights and still has no desire to do so are powerful. Fahy testified that he wants his claims heard, and he wants to live,” Shapiro wrote.

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