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A divided panel of the 3rd U.S. Circuit Court of Appeals has reinstated a death sentence after concluding that the lower court erred in overturning it due to potentially confusing jury instructions since those instructions clearly played no role in the jury’s decision. But a dissenting judge said he believed the lower court was right in overturning Richard Hackett’s death sentence because the jury was possibly confused by the trial judge’s instructions and the wording of the jury’s verdict sheet and therefore may have believed it had to be unanimous in its findings of any “mitigating circumstances.” Thursday’s decision in Hackett v. Price reverses an August 2001 decision by U.S. District Judge John R. Padova that upheld Hackett’s murder conviction, but overturned his death sentence. Padova found that Hackett was entitled to a new trial on the penalty phase because the jury instructions and verdict form used in his case violated the U.S. Supreme Court’s 1988 decision in Mills v. Maryland. In Mills, the justices overturned a Maryland death sentence, holding that while juries must unanimously agree on aggravating circumstances if they vote for death, they don’t need to be unanimous in finding a mitigating circumstance that weighs against death. In the wake of Mills, Pennsylvania courts recognized that the ruling cast doubt on the standard jury instructions and verdict forms used in Pennsylvania capital cases. Pennsylvania judges quickly cured the problem by explicitly instructing juries that there is no requirement of unanimity for mitigating factors. But for dozens of inmates already on Pennsylvania’s death row, the Mills decision proved to be a powerful claim to raise on appeal. Federal judges in Pennsylvania have overturned at least seven death sentences on Mills grounds, including Mumia Abu-Jamal, Henry Fahy, Josoph Henry, Joseph Kindler and Otis Peterkin. But the effect of Mills on Pennsylvania’s death row was significantly curtailed earlier this year when the U.S. Supreme Court ruled in Beard v. Banks that the Mills decision should not be applied retroactively because it announced a “new rule of law,” and that the 3rd Circuit had therefore erred by allowing George Banks to pursue a Mills claim. Hackett’s appeal before the 3rd Circuit was put on hold pending the outcome of the Banks case. But since the justices limited their decision to the retroactivity question, the ruling had no effect on Hackett’s appeal since he had raised a Mills claim in his direct appeals. Now the 3rd Circuit has ruled that Mills is no silver bullet and that despite the use of the flawed jury instructions in Hackett’s trial, it was nonetheless clear from the way the jury rendered its verdict that it was not affected by any potential confusion in the instructions and verdict form. “The jury found unanimously that no mitigating circumstance exists. Because of that finding, we conclude that Hackett fails to show a reasonable likelihood that the jurors, individually or collectively, applied the challenged instruction and verdict form in a way that prevented the consideration of constitutionally relevant evidence,” U.S. Circuit Judge Thomas L. Ambro wrote. The ruling is a victory for Philadelphia Assistant District Attorneys David Curtis Glebe and Thomas W. Dolgenos. Ambro, who was joined by Senior U.S. Circuit Judge Morton I. Greenberg, found that since the jury found no mitigating circumstances existed, “it did not proceed to determine whether any mitigating circumstance outweighed the aggravating circumstances it unanimously found.” But in dissent, Senior U.S. Circuit Judge Edward R. Becker complained that “the majority makes no showing, however, that the instructions and verdict slip in this case were at all different from, or any less confusing than, the instructions and verdict slips which led this court to grant relief under Mills in Banks … and Frey v. Fulcomer.” Becker complained that the majority had improperly justified its ruling on the “sole ground” that Hackett’s jury unanimously found “no mitigating circumstance.” “The majority infers from this finding that Hackett’s jury must not have been confused by the instructions and verdict slip with regard to its role in finding mitigating circumstances,” Becker wrote. “I find this analysis unconvincing.” Becker said the majority had evaded the 3rd Circuit’s holding in Banks by focusing on the fact that Hackett’s jury found “no mitigating circumstance,” whereas in the Banks and Frey cases, the juries had found at least one mitigating circumstance and reached the weighing stage. “In my view, this distinction between the cases is immaterial,” Becker said. In Hackett’s case, Becker said, the trial judge “never explained what it meant to ‘unanimously’ find ‘no mitigating circumstance,’ and its instructions, as we have held in Banks and Frey, were reasonably likely to lead a jury to believe that unanimity was required before it could even consider a mitigating factor.” As a result, Becker said, “contrary to the majority’s suggestion that each juror in Hackett’s case must have considered and rejected all mitigating evidence, the record more accurately reflects that this jury likely was unanimous only in finding that there was ‘no mitigating circumstance’ upon which all jurors could agree.” Reviewing the facts in Mills, Becker found that the majority’s analysis was clearly flawed because, just like Hackett’s jury, “the jury in Mills likewise found no mitigating circumstance to exist and imposed a death sentence without reaching the weighing stage.” The Supreme Court nonetheless overturned the death sentence after concluding that the Maryland jury might have been confused. Becker also found that Hackett’s jury had “substantial mitigating evidence to consider.” The jury heard that Hackett was 20 years old at the time of the murder. His mother, Bonnie Hackett, testified that her son twice failed the first grade and suffered from severe learning problems that resulted in his attending a special school throughout childhood for the learning and emotionally disabled. A psychologist also testified that tests showed Hackett had “very regressed, immature perception of reality situations, which is a sign of immaturity and possibly illness” and was “limited in terms of coping mechanisms … [and] limited in understanding social relationships.” In light of such significant mitigation evidence, Becker found that Padova was correct in concluding that it was possible that every one of the jurors had personally found at least one mitigating circumstance, but erroneously believed they were required to be unanimous on a specific mitigating circumstance. Padova concluded that, due to the confusing jury instructions, it was possible that the jury returned a death verdict under the “no mitigating circumstance” prong even if all 12 jurors believed a mitigating factor existed but did not agree on any one particular factor. “For example,” Padova wrote, “two jurors could believe age is a mitigating factor and the other ten jurors could believe the defendant’s lack of significant criminal history is a mitigating factor. All twelve jurors thus believe that a mitigating factor exists, but because they do not all agree as to the same particular mitigating factor, they conclude that there are no commonly agreed upon mitigating factors.” In such a situation, Padova said, the jury “delivers a verdict of death without ever weighing the aggravating circumstance against the mitigating factors.” Hackett’s lawyer, Norris E. Gelman, said he intends to petition for rehearing before the full 3rd Circuit. “I’m terribly disappointed, but I’m heartened by Judge Becker’s outstanding dissent and I’m hopeful that his views will eventually carry the day,” Gelman said.

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