1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 argument v.

IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X JEFFREY A. BEARD, SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL., Petitioners : : : : : : No. 02-1603

GEORGE E. BANKS.

- - - - - - - - - - - - - - - -X Washington, D.C. Tuesday, February 24, 2004 The above-entitled matter came on for oral

before the Supreme Court of the United States at

11:24 a.m. APPEARANCES: RONALD EISENBERG, ESQ., Deputy District Attorney; Philadelphia, Pennsylvania; on behalf of the Petitioners. ALBERT J. FLORA, JR., ESQ., First Assistant Public Defender; Wilkes-Barre, Pennsylvania; on behalf of the Respondent.

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ORAL ARGUMENT OF

C O N T E N T S
PAGE

RONALD EISENBERG, ESQ.
On behalf of the Petitioners ALBERT J. FLORA, JR., ESQ.
On behalf of the Respondent REBUTTAL ARGUMENT OF
RONALD EISENBERG, ESQ.
On behalf of the Petitioners 42
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3

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P R O C E E D I N G S (11:24 a.m.) CHIEF JUSTICE REHNQUIST: We'll hear argument

next in No. 02-1603, Jeffrey A. Beard v. George E. Banks. Mr. Eisenberg. ORAL ARGUMENT OF RONALD EISENBERG ON BEHALF OF THE PETITIONERS MR. EISENBERG: please the Court: At three defense including brother, his trial in 1983, George Banks' team of Mr. Chief Justice, and may it

lawyers presented 23 forensic

mitigation witnesses, his mother, The

three

psychiatrists, and

and co-workers,

a priest,

two nuns.

trial court instructed the jury mitigating evidence it. Now Banks claims

that it must consider any in rejecting

unless it was unanimous

that

Mills v.

Maryland,

a

of this

Court made

after the

completion

of his

direct appeal, entitles him to for the killing of 13 people.

re-open his death sentence In fact, Mills creates a a

new distinct rule

regulating the

manner of conducting

death penalty hearing that is not applicable retroactively and that in any case was reasonably applied by the State

courts attempting to interpret it. The primary issue in this case, though, is

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whether

the

Mills

rule

which

prohibits

unanimity minor

requirements at the

mitigation stage

was merely a

application of existing law dictated by prior precedent or whether Lockett beyond it's v. instead Teague-barred. the Mills does cite

Ohio for

general proposition

that it's

dispute that the sentencer, quote/unquote, may not

be precluded from considering mitigation. But before Mills, the sentencer, always referred to the That judge was a new. or the quote/unquote, never to

jury,

individual time

jurors.

leap made for Even with

the first

in Mills.

That was

a unanimity as we'll in the

charge, although there wasn't address, a jury

one in this case, the

still considered

evidence

manner that juries historically have considered that is collaboratively. been read to Until Mills,

evidence,

the Constitution to verdicts, And even

had never

forbid unanimity as or special

whether general verdicts since Mills, as this

verdicts. in

Court

recently said

Jones v.

United States, we have long been of the view that the very object of comparison themselves. So the remained open understanding question of jury unanimity, we believe, the jury of system is by to secure unanimity by a

views and

arguments among

the jurors

not only after Lockett but of members of this

even within the the time of

Court at

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Mills

and

thereafter.

In

fact,

in

McKoy

v.

North of

Carolina, decided 2 the Court rejected

years after Lockett as

Mills, four Justices supporting, let

alone

compelling, a rule against jury unanimity. Now, whether the dissenters in McKoy can be said to be right or wrong about the meaning The of Mills is

irrelevant in this

Teague context.

question is that did not

they believed that Mills, not to mention Lockett, resolve the unanimity question presented here. QUESTION: Mr. Eisenberg, tell --

tell

us

exactly what you mean by jury unanimity because, you know, most States verdict. MR. EISENBERG: mean only at the stage Excuse me, Your Honor, of finding yes. I require jury unanimity in the -- in the final

whether particular That is the -- the Mills and

mitigating circumstances are present.

jury unanimity question that was decided in the McKoy cases, as I've said, subject to

dispute, strong

dispute, among the Court that continued even after Mills. Because this is a Teague I've right said, is not or whether Mills can be case, the question, as was right or McKoy was but

which side

better

defended now, could have

whether what the

State court

judges reasonably be. And since

known the

outcome would

even within

Court there was such continuing controversy on the matter,

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it cannot be said that State judges

reasonably could have

known, and therefore the case is Teague-barred. But that uncertainty continued even beyond McKoy because in the next similar case before the Court, Walton the issue was presented on essentially the

v. Arizona,

same basis as out

the Mills case had been. that a single

The single hold­ because of a a

juror scenario,

juror

unanimity requirement in preponderance of the

Mills or

because, in Walton, standard, could

evidence

block

consideration of mitigating evidence and thereby mandate a death penalty case. QUESTION: brief at page 8 On -- on the then set at instructions in the red page 9, there This is are in two the to is

and

different

instructions

out.

respondent's brief.

And then

the jury form which has In your view interpret

be checked is set out on pages 9 and 10. that all we should consider when we

these

instructions, or do you have some that you wish us to refer to? MR. EISENBERG: Your

additional instructions

Honor, I

think that

the that not It's

instruction here was basically the message as to unanimity

the same throughout,

regarding mitigation or the instructions. It's

was basically the same throughout in the joint appendix at page 21.

repeated at page

26, and we think embodied in the jury form -- I'm sorry -­

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also at pages 66 and 67. And instructed aggravation unanimously in each that of it those must cases, be the jury to it was find must

first or

unanimous then that

no

mitigation whether

and

find

any

--

find

aggravating

circumstances which outweigh any mitigating circumstances. But, of course, the threshold question is

whether the State courts could even have known was such a thing as

that there or

a rule against unanimity, whether on the facts of

not unanimity was actually required case.

this

And the Walton case, as I've mentioned, is relevant in Walton the same was that argument was of the

to that question because at issue, and the

argument

because

preponderance of the evidence or even really 12 hold-out

standard, a hold-out

juror be

jurors, so to speak, could

somewhat persuaded by mitigating

evidence, could think it

significant, but not quite past the tipping point required by the preponderance standard and at all yet be precluded in the weighing from

considering that evidence

stage.

And yet, the defendant lost that argument in Walton. And again, to leave the State the relevance for Teague purposes is courts in the position of McKoy, before trying to Mills, in the of

determine before this case in Lockett case

Walton, before

1983 that the somehow

Eighth Amendment through the establishment

precluded

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unanimity. QUESTION: they -Well, with Lockett -with Lockett

what Lockett says is that the sentencer cannot be considering as a mitigating or factor any

precluded from aspect of the

defendant's character

record

or any

circumstance. Now, thing people one thing that could have meant -- one

-- is that think --

you cannot not only

execute a person that -crime but is also

unless 12 unusually that it

that that's

terrible

aggravating

outweighs in this person's to bring in. come

life any good things he

wants

That's his character. judgment.

And 12 people have to Now, if that's so, 12

to that ultimate

people have to have not

come to that ultimate

judgment, 12 people fact 11 don't So if

come to that ultimate off, but one

judgment when in

would let him agree that that's

blocks it

by saying I

this is the

mitigating circumstance.

what Lockett means, it

would be obvious that that

wouldn't satisfy it. MR. EISENBERG: QUESTION: my question. MR. EISENBERG: QUESTION: Lockett -- Lockett -­ could Lockett mean that And Well -­

Well, what else could Lockett mean is

What else

would make sense in the context of the death penalty?

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you'll have a lot of answers, but I want to know what they are. MR. EISENBERG: QUESTION: Yes. It -what it also could have Excuse me, Justice Breyer.

MR. EISENBERG: made sense is

that the jury as a

whole in the historical

manner of juries had to consider the evidence, and there's no doubt that it could have meant the you suggest. interpretation that

And we know that because Mills held that and So, of course, it could have meant that. it could have meant that and was by

McKoy held that. But the fact

that

eventually held to

mean that

over continuing dissent

the Court is not -- does not resolve the Teague question. QUESTION: tell me precisely wonder if that's going to be the meant. And I No, it doesn't, but I want you to

in a reasonable way -- and I'm going to -- if it is reasonable or not. That's have in

issue -- what -- I'll

other thing it might

draw here

on the concurrence

Penry where the statement is made it's

obvious it's meant

what I just said it meant because anything else would have been arbitrary in the context of our arbitrariness

jurisprudence. MR. EISENBERG: QUESTION: the words, Well -­

So -- so you tell me -- I understand

well, historical, et cetera, but I want to pin

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you down more than that. MR. EISENBERG: first to Penry. Penry did not involve this question of Yes, Your Honor. Let me speak

unanimity, and the taken that

reason I believe that

the opinion was of Lockett is

it was obviously an application

because it involved very much the same kind of categorical question that was presented in Lockett. In the Penry three

case, there were

three questions

before the jury, jury. The

mitigating categories given said, I have some

to the

defendant

evidence

that doesn't In

strictly fall Lockett, there

within one of those were three

three categories. of

categories

mitigation

given

to

the

sentencer, and the defendant said, of mitigation that don't fall

I have some categories within those three

categories that my

sentencer was limited to.

That's why

Penry is a straightforward Lockett case. QUESTION: commentary these But I'm thinking I may of Penry's

about Mills or up,

whatever. I

-- I may get Mills was

cases mixed

but

thought

that

characterized as a case that follows obviously -­ MR. EISENBERG: QUESTION: MR. remember no Your Honor, I --

-- from Lockett -­ I could be from any wrong, but I of the -- I

EISENBERG:

such statement

opinions in

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Penry or Mills and

really in any other McKoy cases where the extent it

case except for the subject was

the -- the in dispute. members of

So that to

was obvious to some

the Court, it was far from obvious to other members of the Court, and therefore certainly couldn't have been obvious

to the State court judges who were expected to know before either of those cases were decided. QUESTION: Mr. Eisenberg, the court of appeals

has changed its mind in this area, has it not? MR. EISENBERG: Honor, and that is very That is certainly our view, Your relevant to the second question that the

presented here, which Mills an

is whether, even assuming

rule could be applied retroactively, there was a -­ application of that rule by the State

unreasonable

court. Now, originally this question came before the

Third Circuit Court of Appeals in 1991 in case. It was the that same type of

the Zettlemoyer that's the of

instruction structure And the

presented

here

tracked

the

of court

Pennsylvania appeals, the

sentencing

statute. Court of

Third Circuit

Appeals, said

that

that instruction was said it was not

not inconsistent with Mills, with Mills

and it an

inconsistent

because

instruction that requires unanimity as doesn't mention unanimity as to

to aggravation but is not an

mitigation

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instruction that requires unanimity as to both. same theory along. In the next Circuit in case that came up before

It's the

that we have been presenting in this case all

the Third

1997 in Frey, the Third Circuit held, no, that

kind of instruction, with all the words and proximities at issue there, did violate Mills. QUESTION: Did it -- did it treat the Frey case

as overruling its earlier case? MR. EISENBERG: It's -it treated it as

distinguishing, Your Honor, but that -- Mr. Chief Justice, but we think the that that's was irrelevant for our purposes

because

Frey case

a pre-AEDPA

case, certainly the Frey case

wasn't applying a

deference standard.

And

not only wasn't applying the

deference standard, but went

so far as to characterize the State court's interpretation of its instruction in these capital cases as plausible. Now, reasonable -­ QUESTION: Could I interrupt? Excuse me. I interrupt with just one whether or not plausible means

MR. EISENBERG: QUESTION: question?

May

Because I'm -- I'm a little rusty on just what was. case And I -- I if you think you have just read the

the sequence of opinions one impression of the

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instructions

because

I think

you've

got a

very strong

argument on the instructions. I get a different impression of look at the jury form, the case when I effect And

the verdict form, which in

requires a check to show the jury acting unanimously. my question is at the first go-round, did the

court of

appeals actually focus on the instructions? MR. EISENBERG:

the -- the jury form as well as

The

court

of appeals

in the

Zettlemoyer case, the first one in 1991, Your Honor. QUESTION: It did.

focused on both,

MR. EISENBERG: was faced exactly is brief. with the --

And the court of appeals the -I believe that the

-- it page

923 F.2d at 308.

It's cited

in our -- in our

The court of

appeals specifically quoted both the and we would suggest and that

charge and both

the verdict form,

were legally

parallel to

the charge

the form

involved in this case.

And the court

made its comment in

regard to both of those provisions. QUESTION: imply a concept Because the jury form does seem to

of unanimity because they got

to require

-- you know, the form definitely refers to unanimity. MR. unanimity in EISENBERG: Well, the form refers to

exactly the same way that the charge does, I

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would submit, Justice jury,

Stevens, because the

it says, we, in the

the

unanimously sentence

defendant

above

matter, and then you have two options, just as the statute in Pennsylvania and just as the judge's charge laid out.

We unanimously sentence the defendant in the above matter, and it says to at least -- we -- we, the jury, unanimously sentence the life defendant in We, the above the two jury matter to -death or found

imprisonment. and

have you At

unanimously,

then the

options.

least one

aggravating circumstance and no mitigating circumstance or -- and there's a big or in the middle of the verdict form

-- or one or more aggravating circumstances which outweigh any mitigating circumstances. QUESTION: in the mitigating three options. MR. So -­

Yes, but -- but the key point is that one, two,

circumstances are, there are

They just checked one. EISENBERG: Yes, Your Honor. There are

blanks next to the mitigating circumstances, we still have those blanks next

but frankly, mitigating

to

circumstances now after Mills, after it's been changed, in order to make it perfectly explicit that any one juror can vote for mitigation. QUESTION: And see, it isn't explicit here, and

the check seems to me to indicate that they were unanimous on mitigating circumstance number 1, but they were not on

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the others. MR. EISENBERG: QUESTION: Well -­

And so it seems very likely that some considered -- felt they could not

of the jurors may have

consider mitigating circumstance 2 or 3. MR. EISENBERG: Your Honor, two things. First

of all, the reason that there are checks there is that the jury, under the give Pennsylvania a structure, is at essentially in the

required to

second look

mitigation

weighing charge, even if

even if some of those jurors may have -­ may have been in dispute about the

the jurors

existence of those mitigating circumstances.

So in order

to apply the first phase of the instructions, they have to decide whether all of them find no mitigation. If all of

them don't find the absence of mitigation, then they go to the second stage, and at that point, they are all required to look at mitigation, even if they might have voted

against tracks

it the first time. the kind of

So the statute appropriately that all of them are

mitigation

required to consider in the weighing process. The second point I want to make, however, Your

Honor, is that, of course, this is not the first time that a verdict form like this and an instruction like this have been looked at. And I must emphasize this is a deference

case under section 2254.

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As I explained, the Third Circuit in 1991 looked at a verdict violation States of form like this and Mills. Other said, no, this is not a

circuits around held that this

the United kind of

have

consistently

instruction and verdict form are not a violation of Mills. Where the -where the instruction and verdict form don't then

explicitly require unanimity as explicitly require unanimity

to aggravation but as to mitigation,

there's no violation of Mills. QUESTION:

And that's -­ if in fact we have 12

And so -- so

jurors and all 12 believe that this person was awarded the Congressional Medal of means he Honor and 11 of them think that

shouldn't get death, but

one of them

thinks it

isn't that much of this, the

of an offsetting factor,

on your reading Lockett that

-- they could

conclude after

it's death because we don't have unanimity on whether that Congressional Medal offsets the horrible crime. MR. EISENBERG: second question Justice Breyer, for the deference purposes of our

here,

question,

argument was

is that that is not the case, that the jury here vote for death or not required to

not permitted to

vote for death automatically merely unanimous in failing to find a

because they were not particular piece of

mitigation. QUESTION: So if they had been -- because let's

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--

I --

I was reading

the jury form

differently, and I

might be wrong.

I'll go back to that. and I want to And on that, go back you're to that

But take my hypothetical to the retroactivity question.

thinking, well,

before Mills

a State

that came

conclusion would not be violating the Constitution. MR. EISENBERG: that before would not What I would say, Your Honor, is that came to that conclusion of the

Mills a State have acted

unreasonably

for purposes

Teague standard. QUESTION: Yes, all right. in Mills -suppose you're right. not right,

Now, suppose And now

in Mills you would

say, well, that's

and the reason that's not right is because the role of the juror is not simply to find the facts, but also to weigh

the significance of the mitigating fact against the horror of the crime. have said. Well, why isn't that terribly important? I.e., That's what Mills then on that view would

that is a radical shift in the role of the juror from what was previously viewed as simply finding facts, now to a

person who is going to make the ultimate weighing question in his own mind in respect to life and death and the

person's career. MR. EISENBERG: Well, Your Honor, we think it is

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a significant change and that's -­ QUESTION: But amazingly enough to fall within

in -- you see where I'm going? MR. EISENBERG: QUESTION: Well, that's -­

I'm -- I'm saying -­ -- to the same exception. a watershed rule. Is it a

MR. EISENBERG: QUESTION: watershed rule? MR. EISENBERG: the answer to that is -­ QUESTION: --

Yes, yes.

Yes, Your Honor, and

If it is

a watershed rule,

then of

course it's retroactive. MR. EISENBERG: Honor, that the fact Then answer to is new that is, Your be

that

a rule

enough to

Teague-barred is hardly enough to make it -- render it -­ QUESTION: In other words, it's not that -­ -- a second Teague exception.

MR. EISENBERG: In fact, Your held that

Honor, this Court has on numerous occasions rules, are not

rules, including Lockett-based

new, and yet not a single one of them has a second exception. The Court

been held to be that that

has made clear

category is exceedingly narrow,

that such exceptions will

be very rare, and surely in every other case where a -- an important Lockett-based rule been found has been announced that has

new for Teague purposes, the Court has gone on

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to

reject second exception his brief here

status here.

In

fact, even

Banks in

does not argue

second exception

status for the Mills rule. In further comment on the Mills rule, however, I would -- I would like to -- on the Teague bar, Your Honor, I would like to point out, as I've mentioned, that the

Court has Teague

previously considered Lockett-based In Simmons, for

claims for in the were the

purposes. case,

example, and rules

Caldwell

the

Court established

that

explicitly based on jury's consideration sentencing hearing.

Lockett concerning -- concerning of evidence at the -- at

a capital

And yet, in both of those cases, even

though I would suggest they were really smaller leaps from Lockett than Mills was, the Court has held that those were new rules that were not entitled either to old rule status or to second exception that Simmons status. And as in the new cases

holding

and Caldwell

were

rules, we

believe the Court should hold that Teague is a new rule. Now, to return to the question -to the

deference question, which -­ QUESTION: You mean that Teague is a new rule. I'm sorry, Your Honor. That's

MR. EISENBERG: Mills is a new rule. QUESTION:

Mills is. Thank you.

MR. EISENBERG:

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To return to the question presented, held that the was as I

deference question, the second was saying, the Third Circuit one that same

State court's interpretation, the here in State court,

victorious

the

interpretation based was plausible.

on the same whether

State court precedents, not plausible means

And

or

reasonable, it surely does not mean unreasonable. And yet, in the Mills that Third first post-AEDPA case involving

came along in the Third Circuit, this one, the held without discussion of either its

Circuit

original 1991 discussion contrary of

ruling that had its 1997

upheld this charge had noted

or any

ruling that

that the Third

construction

was

not unreasonable,

the

Circuit held in

this case that no

court could reasonably

have applied Mills in the way that the State court did. And the -the reason that all the other

circuits have disagreed with the Third Circuit on that and that the Third Circuit itself has come to a different Mills

position on that gets back

to Mills itself because

was not the kind of charge that was involved in this case. In Mills, the charge explicitly required the jury to be

unanimous in order to find the presence of mitigation. QUESTION: Just to get back a minute, Mr.

Eisenberg, this case was decided before Mills was decided. Right?

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MR.

EISENBERG:

The

direct

appeal

in

this

QUESTION: MR. of

Yes, the direct appeal. -- was completed, before including Mills was

EISENBERG:

certiorari

by this

Court,

decided.

Yes, Your Honor. And in the Mills case, the Court was faced with

a verdict form which explicitly required unanimity to find -- to mark yes for mitigation and explicitly required that only those mitigating circumstances marked yes -- that is, unanimously marked yes -- could be considered at the

weighing stage. Now, happened here. yeses. contrast that There was in both respects with what

no instruction on unanimity for

There was no instruction that only unanimous yeses weighed. Instead, we have only an instruction

could be

requiring unanimity for no votes on mitigation. And I think that there's a further important

point about the Mills case. QUESTION: those -But, Mr. Eisenberg, you would concede questions are -are certainly

those

ambiguous. clarify that the group. like you

The --

Pennsylvania made the

change just to the -­

it was the individual

juror and not

You can look at those and

conclude that just so you

had to find

the aggravated unanimously,

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had to

find

each mitigating

unanimously.

The form

is

certainly susceptible to that reading. MR. suggest all, it EISENBERG: Well, Your Honor, I would

that if it

is susceptible

to such a

reading at the reason The

is far from the

primary meaning, and

for that is really just the rules of English grammar. two stages of in the process that are not are laid out

in the are

instruction

question

parallel.

They

dramatically different. be unanimous in

So the first stage says, you must circumstances or no

finding aggravating

mitigating circumstances. matter of grammar, that

And there's no question, there's only one verb

as a

in that

sentence with

two objects, aggravating

circumstances and

no mitigating circumstances. must apply to both nouns. In structure. the second

The verb, unanimously finds,

sentence,

we

have a

different

Unanimously find -­ Mr. Eisenberg, if you -- if you were

QUESTION:

-- if you were a -- a defense lawyer and you knew that the -- the law was that each juror could individually you were confronted decide like

the mitigators and

with a form

this, would you object? MR. EISENBERG: rule already Well, Your I think Honor, had the Mills somebody might have

been decided,

raised an objection.

It may or may not have succeeded but

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certainly

had

an

objection

been

able

to

be

made

contemporaneously, we wouldn't have

to have worried about

error being built into the trial and the matter could have been handled expeditiously. That's why we have changed our verdict form, not because Pennsylvania has changed its understanding of what has always been but because the structure of its sentencing process, matter was

once Mills was

decided, once the

constitutionalized, it became certainly wise for the court to attempt to avoid further litigation on making it explicit. QUESTION: Before it was just the law and not the question by

constitutional, it was all right to be -- to be ambiguous, but once it was constitutional, it had to be clear? I'm

not following. MR. EISENBERG: Honor, is response that the to a Well, our -- our argument, Your the form that way. in

fact that rule is

they changed not

new their

evidence

they In

previously read fact, the

statute in

a different

State supreme court has always said that it has statute to require unanimity only as to

always read the

the absence, to the rejection of mitigation and not to the finding of any particular mitigation. But arguments of in reference to your question concerning argument of

counsel, in fact,

there was no

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counsel from

either side

here that

the jury

had to

be

unanimous about Honor has

mitigation.

In the same manner that Your the prosecutor, be unanimous had he about

suggested, presumably the jury had

believed

that

to

mitigation, it

would have been to his advantage to say so

and to argue to the jury, all 12 of you have to find these before you can consider them. that. And in fact, here's what the defense lawyer said in volume 2301. 6 of the trial transcript at pages 2300 and to He didn't say anything like

He wasn't,

I believe,

specifically referring

mitigation, but he said, quote, think individually, decide this individually. life. Now, in light of the manner in which the case All it takes is one person to save his

was argued to the jury and in light of the manner in which the judge presented the charge and laid out the verdict

form, we believe that the jury would not have -- cannot be assumed to have come to the wrong conclusion here, and

surely that

the State court and, as I've mentioned, every court looking at similar instructions and could not be said to have acted

Federal circuit verdict forms,

unreasonably in finding the absence of a Mills violation. Thank you. If there are no further questions,

now I'd like to reserve the remainder of my time.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 principle creates Court:

QUESTION:

Very well, Mr. Eisenberg.

Mr. Flora, we'll hear from you. ORAL ARGUMENT OF ALBERT J. FLORA, JR. ON BEHALF OF THE RESPONDENT MR. FLORA: Mr. Chief Justice, may it please the

Lockett and

Eddings

established a that a

fundamental which from

which basically barrier

provides

a State sentencer

any

which precludes and full

giving full consideration

effect to

mitigating

evidence relating to a person's character, background, and circumstances impermissible. When we look at Mills decision in McKoy, the unanimity a weighing State different type of and take into account the instruction in Mills, in was a of the offense is constitutionally

such as Pennsylvania, essentially barrier which precluded jurors evidence. In a

to give

effect to mitigating the unanimity but in can say

non-weighing State, be appropriate, single juror this

requirement would probably

a weighing State, what to other piece 11 jurors, of

happens is a I don't

believe that a

particular

evidence

satisfies

mitigating those

circumstance,

and that

single juror

can preclude

other 11 jurors from giving effect. QUESTION: That might have been, Mr. -- Mr.

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Flora, the logical extension of Lockett itself compelled or

Lockett, but to say

that I

directed

that extension

think is quite a stretch. MR. FLORA: look back Justice Ginsburg, I think over a period when you of time, all

at the legal landscape

going back from Hitchcock, to Skipper, to Eddings, in of those barriers. cases, the Court The Court dealt with different with different

types of of

dealt

pieces

factual evidence relating to circumstances of the offense.

character and background and

When the Lockett rule was initially announced by a plurality of the Court, the Court could not perceive in different type of barrier that a period of may come

the future every about, and

so what happened over

time, when

you took the

Lockett rule, you were

essentially applying

it to a variety of time

factual different situations, and each a particular barrier, which if it precluded a

the Court would look at

it had not perceived

in the past, and

juror or a jury from giving effect to mitigating evidence, it struck down that barrier. And that's where we're

coming from here. So when we say that it is a stretch of Lockett, I think it is a it is logical consequence and the

I don't believe so. of Lockett. I think

dictated by Lockett

cases that followed after that.

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QUESTION:

Does it -- does it

mean nothing that

this Court was so sharply divided and that you really have just an opinion? the The lead opinion is labeled opinion White disassociated of

Court, but Justice He --

himself from of the

the reading. case. MR.

he had a

much narrower view

FLORA:

If we look at looking the

Mills and if we look the was dissent, over how my a

dissent, was

in that

at

interpretation reasonable

issue

juror would that

have

interpreted the I did not

particular the

instructions in dissent that

case.

glean from

they thought a

unanimity requirement

would

not constitute a barrier to a jury or jurors giving effect to mitigating evidence. If you look question that McKoy at 494 opinion, prevent evidence we the at McKoy -- and I think this is a

Justice Breyer had posed about a case -- in U.S. at 438, the Court reason other that allowing jurors from says in the majority a hold-out juror to

considering

mitigating

violated the principle established in Lockett v. sentencer may not be precluded from giving

Ohio, that a

effect to all mitigating evidence. QUESTION: way, did it? Yes, but Lockett I didn't put it quite later decision a way

mean, frequently a an earlier

will kind

of characterize

decision in

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that tends to support the later decision. MR. FLORA: to a point. that an That is correct. I -- I would agree not say the was

If we look evidentiary

at Lockett, Lockett did ruling which

precluded

consideration or giving effect to mitigating evidence constitutionally prohibited. QUESTION: had to admit any

It said that the -- it said the court with the defendant's

evidence dealing

character. MR. FLORA: That is correct, but what I'm saying time Lockett was could envision

is when you look back at Lockett, at the decided, I don't think the various types of

the Court could -barriers that a sentencer from each time a

State could create giving effect barrier came to up,

which would

preclude a

mitigating evidence.

So

whether it was in Eddings or Skipper or Hitchcock -­ QUESTION: quite different But what was happened in Lockett was Mills. In

than what

involved in to

Lockett, jury.

evidence

was offered

be considered

by the

The

court said, no, that's not what we think of as And our Court said, any evidence for from

mitigating evidence. bearing on the

defendant's character

is admissible

consideration by the jury. the way you describe Mills. MR. FLORA: The

Now, that's a long step

way

I

describe

Mills

is

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essentially

again

that

in

order

to

give

effect

to

mitigating evidence, you simply which allows one juror to

cannot have a requirement other 11 from

preclude the

giving that effect.

And it's my position that that is -­

that concept is dictated by the Lockett rule. QUESTION: one might say you If there's doubt would prevail about that, I mean, argument in a

on that

debate, but Teague requires more, doesn't it? MR. there is jurors. the a FLORA: There is language as to whether if amongst the minds of the at

reasonable debate

The problem with of capital

that concept, when you look jurisprudence since

history

Furman on which of

forward, I can only think this Court has

of probably two cases in in its If

been unanimous v. Dugger.

decision, one

which was Hitchcock

we say that

the rule if so

upon which a defendant seeks to rely is a new rule,

much as one Justice disagrees, I don't think we could ever have then a rule that would be based on precedent. the problem I have. QUESTION: Does it make any difference if it's That's

four Justices, as it was in McKoy, do you think? MR. quantitate it think that -­ QUESTION: Does it make any difference that the FLORA: I don't think you can honestly I just

-- put a quantitative amount to it.

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dissenters say

Lockett didn't

remotely support

the rule

that a mitigator found by only one juror controls? MR. FLORA: QUESTION: I think -- that's a tough question. But that is what -- what was said in

McKoy by the dissenters. MR. FLORA: the dissenters, but that. QUESTION: Would it be all right, let's say jury, That is what was said in McKoy by

the majority in McKoy

disagreed with

today after Mills, for a

trial judge to instruct a

ladies and gentlemen of the jury, this is a case of utmost gravity from the standpoint of both the defendant and -­

and the families of the victims? most valuable aggravating if you are

And your verdict will be mitigating and surrender your

unanimous as to should not

factors.

You

individual views. then I'll say that?

If you

cannot come to that conclusion, instructions. Could a judge

give you further

Would that serve a purpose? MR. FLORA: A judge could not say that in light

of Mills.

I think, however -­ QUESTION: MR. FLORA: It's too dangerous? -- especially in a weighing State

because you're talking about unanimously find circumstances. Then you also

aggravating

used the phrase unanimously

find mitigating circumstances, and that's the problem that

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I have. I think clearly a jury in the court can give guidance to weighing of evidence, a

consideration and

and

quite frankly, that happens all the time. QUESTION: said is Because it seems to me that what I've

right, that if they are unanimous on all factors, -- that's the jury functioning at its best. event that

that that's

And you would give further instructions in the the jurors cannot surrender --

should not surrender their if that's the way it

individual views on mitigation, and has to come out, fine.

But I want you to try to do this.

You think that would be error? MR. FLORA: unanimously find all If you of the tell the jury to try to the In

mitigating

factors,

problem I see with that is what happens if they don't. Pennsylvania there

is no remedy if there is a deadlock on

the finding of a mitigating factor. QUESTION: Well, of course, my hypothetical was

half -- half completed, and then we'd have to fill in what would happen and I -- I didn't bother to do does seem to me that the instruction I that. But it the the

suggest in

first instance

is --

is valuable and

also reflects

understanding at least pre-Mills that

-- that many people

in the legal system had as to the way the jury functions. MR. FLORA: It was an understanding of the way

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the jury functions pre-Mills. the penalty phase, in

I would agree there, but in look at the way the it is

taking a

unanimity requirement would very different -­ QUESTION:

operate in that phase,

Well, I -- I think for your case you If you say this was

-- you have to amend your statement.

the general understanding as to the way the jury functions pre-Mills, I think you should say pre-Lockett or -or

you're in danger of losing your Teague argument. MR. FLORA: Well, when I think of a unanimity juror holds In a

requirement in a out, that juror

non-capital setting, if one cannot force a guilty

verdict.

capital case, other 11 from

if one

juror holds out

and precludes

the

giving effect to mitigating

evidence, that

one juror essentially can effect a sentence of death. QUESTION: what do you say to would be the and says, That's true, but now what are you -­ which

a different reading of Lockett, A State official reads supposed to

following?

Lockett the

this is

how it's

work, that

defendant can introduce evidence on the jurors can consider any of this

anything he wants and mitigating evidence, to vote, the the

and they do consider it. the only things that factors

But when it comes time can use

the jurors are

to offset of

aggravating

mitigating

aspects

defendant's life, that they unanimously agree are, one, in

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existence and, two, are mitigating.

They

look at Lockett Now

and say, of course, the jurors considered everything. -- now it comes time to vote, the rules in our State. Now, what I think is the hardest for

and at this point these are

you is,

while that might not be the best reading of Lockett and it certainly doesn't prove Lockett after Mills, to have been the can we say it's true reading of an unreasonable

reading of Lockett? MR. FLORA: QUESTION: MR. FLORA: consideration I think we can. Because? I think we can because merely giving

to mitigating evidence would, I think, also to give effect to essential. that evidence, with

necessitate the ability

and I think that's what's the fact -­ QUESTION: our holding closer case

If we're left

But you -- you don't seem which was a

to mention

in Saffle v. Parks in my view about case.

much harder, dictated by And in

whether it was

Lockett than your

And the

Court said no.

light of Saffle, I -- I don't see what you have left going for you on that argument. MR. FLORA: In Saffle, you were dealing with an

anti-sympathy instruction. concept, but it's not

Sympathy in and of itself is a character. It's not

evidence of

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evidence

of

background.

It's

not

evidence

of

the

circumstances of a crime. QUESTION: MR. FLORA: QUESTION: QUESTION: MR. FLORA: attempt was to Sympathy is a -- a conflict? Is a concept. Concept. Oh, concept. When you Excuse me.

introduce sympathy, as the that by doing that

be done

in Saffle,

you're bringing into the picture something that is totally irrelevant and from which a jury would not be able to make a reasoned moral inquiry into the culpability of the

defendant to determine whether a sentence of death or life should be imposed. what Saffle was So when I look at Saffle and I look at do, I think that's very

attempting to

different effect to

than having

a barrier

which precludes

giving

character evidence and background

evidence and

evidence specifically relating to the offense. I see it as being very

circumstances of an different under the

circumstances. QUESTION: before and I'd -Is -- is -- the point I was thinking it was Justice Kennedy actually. I

think when he -- he wrote in concurrence. the result in the Mills fits within our

It is apparent line of cases on the

forbidding

imposition of

capital punishment

basis of caprice in an arbitrary and unpredictable fashion

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or through arbitrary

or freakish means.

That's Franklin

and California v. Brown and Furman All right. to characterize a Think back reasonable

and so forth. effort of

to what my -- my State

interpretation

Lockett different from yours. that be in everything? your opinion, the

Well, can you say why would State saying they Right? consider

You remember what it was.

All right.

Why would that be freakish or arbitrary? MR. FLORA: It would be freakish or arbitrary

again I think because mere consideration of jury is not enough. I think you

evidence by a give that

have to

evidence effect.

Without giving that evidence

effect, I the

think you can end up death penalty. QUESTION: it effect. the jury,

with an arbitrary imposition of

No, but the question is how you

give

Eddings and Lockett said all 12 people,

you cannot preclude from giving a

categorically evidence

certain

kind

of mitigating

any consideration.

The question

in Mills was can you preclude one juror from

giving dispositive effect to an item of evidence in such a way as to determine the questions. verdict. can Those be are two under very the

different

They

placed

umbrella of

what effect must jurors be allowed to give to

mitigating evidence, but they are very different questions within that umbrella. And it seems to me that because the

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questions are different, there is not something irrational or capricious in someone having a question -- in someone

being uncertain of the answer to though the first question

the second question even in favor of

has been answered

admissibility.

What do you say to that? I think that it still comes back to And the mechanism that that unanimity juror is

MR. FLORA:

how the unanimity requirement operates. that's being utilized in employing

requirement again I

is the

actual juror,

and if

think a lone, hold-out

vote, then I

think under

the circumstances that is a clear violation of the Lockett rule. QUESTION: jury form Is -- a different question. -- do we have it? I'm Is the -- I'm -I'm

in the record

looking at pages 66, 67, and of the joint trying to

68 of the appendix where the form. And

appendix where you have

work out whether this

is or is

not ambiguous.

And it seems

to me it might depend on the way in which it the word unanimously

appeared on the page because you see appears over on how

here in question 2 on page 66, and depending indented, it might be whether the jury

this is

would reasonably think that that

word unanimously does or

does not apply to the questions that are on page 68. MR. FLORA: go back It's improperly indented. When you

and I think you could actually

look at the -- at

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the jury -­ QUESTION: indented. unanimously If it But the form itself is -it's

were indented,

it would seem

that the

would govern what

follows thereafter, but if

it's not indented, it seems to me a judge might reasonably think that that word unanimously didn't govern what --

what follows thereafter. MR. FLORA: When you have we, the jury, have

found unanimously, my recollection of the form was that it is actually not indented like that. QUESTION: this is the other not indented, If it's not indented, then -and

part of the case.

See, if --

if it's

then you look at the instruction and in the nowhere does the -the judge say the mitigating anything factors look at really this apply

instruction itself, about having to

find

unanimously.

He doesn't

say that.

And then you

the jury form and again, doesn't seem to say

if it's not indented, it that they have to

find

unanimously because

the word unanimously

seems to

here on the page to the first three things that are blank. And then we get a new section. In the new section it

doesn't say anything about unanimous. So -because the court could so that was what whether have I want you a judge to reply to State the

question is reasonably

in that

taken

this form

and

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instructions have did. to be

and said, well, unanimous.

it --

it doesn't

say they

They wouldn't have

thought they

MR. FLORA: when it

My understanding of the verdict form we, the jury, all of the have found check-off

was developed was that basically

unanimously items.

applies to

QUESTION: MR. FLORA: QUESTION:

All of those things. I beg your pardon? And -- and if a judge -if a judge

in the State says, well, I think it didn't, what would you point to in reply? MR. FLORA: is The only thing that I could point to form itself. That's all I could

the actual verdict

point to. I'd like to go back a minute on the -the

question on the jury question -- or the jury instructions. Jury instructions in capital cases to begin with are very difficult to get across to jurors. Just

traditionally case guilt to a

we've had a tough time. you have

When you look at a through the

like this and

the jury going

phase of the case, that jury is already conditioned unanimity requirement in finding guilt. When you

then carry them instruction

over to a penalty phase and we have here and you

you take the give that

that

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instruction to them, given the

fact it's the way

they've

already been conditioned and listening to that instruction and hearing the there is word unanimously repeated and that the repeated, jury would as And

a substantial

likelihood

interpret that instruction as requiring unanimity both to the aggravating and mitigating circumstances.

that's the problem with the instruction. And then when you take the verdict slip and put

that on top of it, I think that compounds everything under the circumstances. When we supreme court And that's the problem here. -- staying at the with this, Mills when the -- and State they

looked

issue It

decided Mills on

the merits in 1995.

was not decided

during the direct review process. unique procedure In 1995 merits,

Pennsylvania has a very capital cases.

dealing with finality in

when the State supreme court applied Mills on the what they simply did was they said, we interpret They looked at

our statute as

not requiring unanimity.

only a portion of the instruction, I believe approximately three sentences, and they say, language violation of of our statute I what and the instruction tracks the therefore there is no

Mills.

suggest that's they didn't

an unreasonable is apply the

application

because

do

correct standard in -­ QUESTION: But that was something in 1995, and

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you're talking

now about a case

that was over

on direct

appeal before Mills was decided. MR. FLORA: the case was That is correct, but in 1995, when court had

decided, the Pennsylvania supreme Mills. And that's

the benefit of this case.

what's different about

Pennsylvania

has a

very

different and

unique

procedure which essentially leaves process because in capital

open the direct review in Pennsylvania

proceedings

prior to 1996, the State court on apply any existing constitutional

collateral review would precedents to a claim, direct review decided by very

even though it was and

not considered first on decision came

even though the

up or was

this Court after the direct different concept there.

review process.

It's a

So there's a question here as to

when finality I think occurred. QUESTION: But wouldn't that undercut this

Court's remand the first -- if it was still

time around?

I mean, if it were wouldn't it

on direct review, then there

be any question about applying back. MR. sent it back, is whether FLORA:

Teague and yet we sent

And I understand that, and when you

one of the questions we had in our own mind fact this Court was fully aware of in

in

Pennsylvania's

unique process

dealing

with finality

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capital cases. In things you final. looking at Teague, one of the very first judgment is

have to do is

determine when the in terms

Teague itself

speaks

of conventional a State can't

notions of finality, develop its

but that doesn't mean

own concept of finality to give respect.

which the Federal have the criminal

courts should

After all, States

primary responsibility for establishing rules of

procedure and protecting the rights of an accused. With that in comity which underline not offended if a mind, concepts the basic of federalism and are

precepts of Teague

State court

decides to keep

open its

direct review process and on here's a decision that came We

collateral review say, look, down from the United States the facts of certain that

Supreme Court. this case execution reproach.

are going to apply it to to be absolutely is beyond

because we want of an

individual

constitutional

QUESTION: policy that its

Yes,

but that's

the State making will do that,

a

State

court judges

and

that's different from a Federal intrusion. MR. FLORA: do that. May I finish the question? QUESTION: I think you've answered it, Mr. I think the States have a right to

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Flora.

Thank you. Mr. Eisenberg, you have 4 minutes remaining. REBUTTAL ARGUMENT OF RONALD EISENBERG ON BEHALF OF THE PETITIONER MR. EISENBERG: As to the Thank you, Mr. Chief Justice. finality, Your

last point concerning the --

Honor, created

and a

the

argument that form of

Pennsylvania has review, which is

unique

collateral

really just direct review, that would be news to the State supreme court which declared this very case to have become final at the conclusion of direct appeal in 1987. Moreover, the Pennsylvania Supreme numerous occasions applied the Teague Court has on in cases

rule

arising on

collateral review

to hold

that the

claim at done

issue was a new rule.

Obviously they couldn't have

that if they didn't think that their own collateral review occurred after the point of finality. And -- and furthermore, in -- in response to the argument that this Court may not have been fully aware of procedure, brief in Court's

the supposedly unique nature of Pennsylvania's Mr. Flora made exactly to that argument in preceded

the this

opposition

certiorari

that

previous summary disposition in this case. Concerning the general argument not a new rule because it forbids any that Lockett is barrier to the

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consideration of mitigation, of of what's a barrier that

course the whole question

qualifies for Lockett protection

or not -- and that question has by no means been clear, as I mentioned. That was the exact argument that was at

issue in Walton, and the to the extent the

majority of the Court held is a

that

preponderance standard

barrier,

it's an acceptable barrier. cases where create the Court has

But, of course, even in those held that Lockett applies, to

a rule against a

barrier to consideration such as the Court has, nonetheless,

Simmons and such as Caldwell, held that that rule is new.

Saffle is certainly additional proposition, create find although in Saffle the

support for that to

Court declined

a rule.

In Simmons

and Caldwell, the

Court did yet in

that the rule

was required

by Lockett, and

later cases found that the rule was new. Now, alternative one of the reasons I think to that the

view or

the --

the failure

see Lockett

immediately as a case that we must consider

precluded unanimity is because nature of consideration of It's not merely law, in

what the

mitigating circumstances is, Your Honor. a fact finding. fact.

It is really a mixed question of

The jury is not required to find fact A, fact B, or It is required to find a mitigating circumstance. And given that that is the nature of mitigating

fact C.

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circumstances, States not

it

was all

the

more reasonable

for the

to understand Lockett as

precluding unanimity fact

for the purposes of making

that mixed fact -- mixed

and law determination at the mitigating stage. case, as it was

But in any

I've said, given the dispute even on this Court, certainly reasonable for the -for the State

courts not to know. And about the given the dispute among the other courts

-- the nature of

the application of

the Mills it

rule to verdict forms and

instructions like this one,

was certainly reasonable for the State courts to -­ QUESTION: law that See, this mixed question of more difficult for you fact of in the

I think makes it if it's a to decide

sense that the jurors

mixed question, it's should this person

really asking die, does he in the

deserve

to die.

And then

the pre-Mills statute

State becomes a situation where he will die even though 11 jurors think he shouldn't. MR. EISENBERG: QUESTION: MR. questions are But, Your Honor, those -­

And that -- that -­ -those of difficult questions mixed that we

EISENBERG: exactly

the kinds

always ask juries

to decide and in

every context outside not

of this one, to decide unanimously, even for example,

just in the case of the commonwealth meeting its burden of

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proof, but the defendant meeting his burden of proof where
that burden of proof is on him in the situation of a -- of
an affirmative defense.
Of course, my argument is not that Lockett can't
possibly be read to require the result that you suggest.
If there are no further questions, thank you.
CHIEF Eisenberg.
The case is submitted.
(Whereupon, at 12:24 p.m., the case in the
JUSTICE REHNQUIST: Thank you, Mr.

above-entitled matter was submitted.)

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