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In a case that could directly impact dozens of inmates on Pennsylvania’s death row, the U.S. Supreme Court announced Tuesday that it will review a decision by the 3rd U.S. Circuit Court of Appeals that overturned the death penalty of George Banks, a Luzerne County, Pa., man who murdered 13 people — including five of his own children — in a 1982 shooting rampage. At issue in the high court appeal is whether Pennsylvania’s jury instructions in death penalty cases were flawed for many years and may have led jurors to believe that they were not allowed to vote against the death penalty unless all 12 jurors unanimously agreed on at least one “mitigating” circumstance. Federal judges have overturned at least seven death sentences on the grounds that the jury instructions violated the U.S. Supreme Court’s 1988 decision in Mills v. Maryland in which the justices struck down a Maryland statute that required jurors to be unanimous before finding any mitigating circumstance. Over the past three years, Mills has proved to be the winning issue for a string of death-row inmates waging their final round of appeals in the federal courts, including Mumia Abu-Jamal, Henry Fahy, Richard Hackett, Josoph Henry, Joseph Kindler and Otis Peterkin. In Banks’ case, a judge in the Middle District of Pennsylvania initially upheld his death sentence, but the 3rd Circuit overturned it in October 2001, citing a Mills violation. But in June 2002, the Supreme Court ordered the 3rd Circuit to take another look at Banks’ case, finding that the lower court had erred by failing to address the threshold question of whether Mills should be applied retroactively. In January 2003, the 3rd Circuit reaffirmed its decision to overturn Banks’ death sentence, but the judges were split on their reasoning. Two judges — Marjorie O. Rendell and Jane R. Roth — concluded that Mills should be applied retroactively because the decision “did not announce a new rule of constitutional law.” The third judge, Dolores K. Sloviter, said she believed Mills is a new rule that usually should not be applied retroactively, but that Banks should nonetheless be allowed to press a Mills claim because the Pennsylvania courts addressed and ruled on the claim. Tuesday’s decision by the Supreme Court to review the Banks case again came as no surprise to some lawyers because the federal circuits are sharply split over the question of whether Mills should be applied retroactively. Broadly speaking, the Banks case could be decided in one of three ways, each of which could have an immediate effect on dozens of other Pennsylvania death-row inmates. If the justices decide that Mills should not be applied retroactively, the case would end there and Banks would see his death penalty reinstated. At the same time, any other death-row inmate whose direct appeals were completed before Mills was decided would also be unable to raise a Mills claim. Such a ruling, however, would have no effect on an inmate in the position of Mumia Abu-Jamal, who raised Mills on direct appeal. In the second scenario, the justices could decide that Mills is retroactive but that Banks’ death penalty must be reinstated because the Pennsylvania Supreme Court did not engage in any “unreasonable” application of federal law when it rejected the Mills claim. Such a ruling could lead to reinstatement of every death penalty overturned on Mills grounds. In the final scenario, the justices could uphold the 3rd Circuit’s decision in all respects. Depending on the high court’s language, such a ruling could ensure victory for inmates in many of the pending cases as well as future cases that have not yet reached the federal courts. It could also prompt the Pennsylvania Supreme Court to begin granting relief on Mills claims more often than it has so far. In the petition to the high court, Luzerne County District Attorney David W. Lupas and Assistant DA Scott C. Gartley were joined by lawyers from the Philadelphia District Attorney’s Office — Assistant DA Thomas W. Dolgenos, the chief of the federal litigation unit, and Deputy District Attorney Ronald Eisenberg, who heads the office’s law division. In their joint brief, the prosecutors argued that the question of the retroactivity of Mills is “especially important” in Pennsylvania because the jury instructions at issue in Banks’ case “were standard in this commonwealth for years.” The 3rd Circuit’s ruling, they argued, “will directly impact at least 30 cases currently making their way through the state and federal courts.” In urging the justices to take the case up, the prosecutors argued that “the federal courts in [the 3rd] Circuit have, through their Mills analysis of this once-standard instruction, effectively nullified every death penalty imposed in Pennsylvania before approximately 1989.” Describing Banks as “one of the most notorious murderers in Pennsylvania history,” prosecutors noted that “his guilt has never been in doubt.” Summarizing the chilling facts, the brief said: “On September 25, 1982, George Banks murdered 13 people in an armed rampage in Wilkes-Barre, Pennsylvania. Seven of his victims were children, including five of his own. Banks admitted the killings in several statements to police. At trial, he took the stand and admitted shooting most of the victims; however, Banks claimed that the police had framed him for the other murders, which the police themselves had supposedly committed.” In June 1983, a Luzerne County jury rejected Banks’ conspiracy theory and convicted him on 12 counts of first-degree murder and one count each of third-degree murder, attempted murder, aggravated assault, recklessly endangering another person, robbery and theft of a motor vehicle. Following the penalty phase of the trial, the same jury sentenced Banks to death on each of the 12 counts of first-degree murder. Since then, prosecutors argue, the Banks case took “an odyssey of appeals and collateral review that has now lasted almost two decades.” Banks lost his direct appeal in 1987 when the Pennsylvania Supreme Court upheld his conviction and death sentences. He first raised Mills in an appeal under the Pennsylvania Post Conviction Relief Act, but the trial judge and state Supreme Court again rejected all his claims. Banks’ first federal appeal was dismissed in 1997 by a judge who found that it raised new issues that had never been presented to the Pennsylvania courts. After the state courts rejected Banks for the third time, U.S. District Judge James F. McClure reached the merits of the case and rejected all of Banks’ claims. Victory for Banks came in October 2001 when the 3rd Circuit ruled that McClure had erred by failing to grant relief under Mills. Now, nearly two years later, Banks and his lawyers — Albert J. Flora Jr. of Wilkes-Barre and William Ruzzo of Kingston — received the news that they must defend that victory in the highest court in the land. Lawyers familiar with practice before the U.S. Supreme Court say that when the high court agrees to hear a case, it immediately makes the case more important. That is especially true in the Banks case due to the obvious impact it will have on a large number of pending death penalty cases in Pennsylvania. Sources close to the Banks case said the justices’ decision Tuesday is likely to lead to behind-the-scenes maneuvering on both sides as prosecutors and defense lawyers decide who will argue the case. One lawyer said the Luzerne County DA’s office is likely to ask Eisenberg, who oversees all appeals in the Philadelphia DA’s office, to take on the chore. On the defense side, the same source said, Banks’ longtime lawyers may also be looking for a lawyer with Supreme Court experience and may ask one of the two lawyers — Peter Goldberger of Ardmore or Temple University law professor Louis M. Natali — who filed an amicus brief in Banks’ case before the 3rd Circuit on behalf of the Pennsylvania Association of Criminal Defense Lawyers.

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