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With the fate of dozens of Pennsylvania’s death row inmates in the balance, Tuesday’s oral argument before the U.S. Supreme Court in the case of Beard v. Banks could hardly have been weightier. Or more hypertechnical. For an hour, the justices focused on questions relating to whether Pennsylvania’s jury instructions and verdict forms used in death penalty cases throughout the 1980s violated the Supreme Court’s 1988 decision in Mills v. Maryland, which struck down a requirement that Maryland jurors be unanimous in any finding of a “mitigating” factor. Most of the argument focused on complex and technical questions: whether the Mills decision should be applied retroactively so that it might potentially benefit every Pennsylvania death row inmate, whether Mills announced a “new rule of law” or was the obvious extension of prior Supreme Court decisions, and whether the Pennsylvania Supreme Court’s analysis of the Mills issue in George Banks’ case was an “unreasonable application of” federal law. By the end of Tuesday’s hourlong argument, it appeared likely that the justices would overturn a decision by the 3rd U.S. Circuit Court of Appeals that applied Mills retroactively in Banks’ case and overturned his death sentence on the grounds that the jury instructions and verdict form might have led some 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. Such a ruling would have immediate ramifications. Federal judges in Pennsylvania have overturned at least seven death sentences for Mills violations, and prosecutors say that dozens more on death row will be raising Mills claims in appeals that have yet to reach the federal courts. 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. Banks, a Luzerne County, Pa., former prison guard, murdered 13 people, including five of his own children, in a shooting rampage in 1982. The jury that convicted him went on to return 12 death sentences. When Banks’ case made its way to federal court, 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 U.S. Supreme Court vacated the decision and ordered the 3rd Circuit to take another look at Banks’ case, finding that the appeals panel 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 that 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. Although Banks hails from Luzerne County, the Philadelphia district attorney’s office took the lead in the Supreme Court appeal, and the case was argued by Deputy District Attorney Ronald Eisenberg. Eisenberg argued that Rendell and Roth got it wrong when they held that Mills was an obvious extension of the Supreme Court’s 1978 decision in Lockett v. Ohio. He said Lockett held only that death penalty juries must be allowed to consider any mitigating factor — but said nothing about unanimity. Justice Stephen Breyer challenged Eisenberg, asking, “What else could Lockett mean?” Eisenberg agreed that the Mills decision cited Lockett as the grounds for its holding but said the question of whether Mills announced a new rule of law was not so simple. Instead, he said, the question is whether every reasonable judge on every court in the country would read Lockett and see that the Mills holding was the only possible result. The reality, Eisenberg said, is that judges on many courts have split on the issue, including four current justices on the U.S. Supreme Court, who said in a dissent and concurrence in the 1990 decision in McKoy v. North Carolina that the Mills rule was not an indisputable conclusion. Eisenberg said the 3rd Circuit brushed aside the import of the McKoy dissent on the ground that it was not the voice of a majority of the court. But in doing so, he said, the 3rd Circuit missed the point because the concurrence and dissent nonetheless showed that four justices of the high court clearly did not understand the Mills rule to be dictated by pre- Mills precedent. Arguing for Banks, Luzerne County First Assistant Public Defender Albert J. Flora Jr. said Mills was not a new rule of law, but just one of many decisions that interpreted the larger fundamental principle announced in Lockett. The Lockett decision, Flora said, instructed lower courts to remove any barriers to a jury’s consideration of mitigating evidence in the penalty phase. In Mills, Flora said, the Supreme Court simply insisted on the removal of yet another barrier. But early on in the argument, it became clear that Flora was lacking support even among justices usually considered liberal in death penalty cases. Justice Ruth Bader Ginsburg said that arguing that Lockett compelled the result in Mills was “quite a stretch.” Flora insisted that the Lockett court could not conceive of every type of barrier and that later decisions applied its general principle to different factual scenarios. Picking up on Eisenberg’s point, Ginsburg asked whether it made any difference that four Supreme Court justices have themselves said that Lockett didn’t mandate the outcome in Mills. “That’s a tough question,” Flora said. Justice David Souter, too, suggested that he rejected Banks’ retroactivity argument, saying he saw the issues in Lockett and Mills as “two very different questions.” At several points in the argument, Breyer seemed intent on assisting Flora in his arguments. Court-watchers later said Flora seemed unable to benefit from the assistance. “When a justice throws you a softball like that, you’re supposed to hit it out of the park. He just couldn’t do that,” one lawyer said. Other court-watchers were even more critical of Flora’s performance, noting that he allowed long periods of silence on several occasions and was rarely quick to answer a question. “Those pregnant pauses are deadly — they’re arsenic,” one lawyer said. By contrast, Eisenberg earned rave reviews. “It was obvious that he was extremely well prepared and ready for any question. There wasn’t a single question that he didn’t get the better of,” one lawyer said. Another lawyer said the case was unusual because it defied ordinary predictions about judicial philosophy. “This isn’t just a death penalty case — it’s a retroactivity case. That’s an issue that can come up again in any area [of law]. So I think the justices are going to be very careful about what kind of law they make here — and it might surprise you to see who’s on which side,” the lawyer said.

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