Wetzel v. Abu-Jamal Brief in Opposition

    No. 11-49

In  The

rnpreme Court of tfje ©mteti States!

John  E. W etzel, Secretary , 
Pennsylvania  D epartm ent of Corrections , e t al.,

P etitioners,

v.

Mu m ia  A b u -Ja m a l ,
R espondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals 

for the Third Circuit

BRIEF IN OPPOSITION

John Payton 
Director-Counsel 

Debo P. Adegbile 
*ChristinaA. Swarns 
Johanna B. Steinberg 
Jin Hee Lee
Vincent M. Southerland 
NAACP Legal Defense 

and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
cswarns@naacpldf.org

Judith L. Ritter 
Widener University 

School of Law 
P.O. Box 7474 
4601 Concord Pike 
Wilmington, DE 19801 
(302) 477-2121

*Counsel o f Record

mailto:cswarns@naacpldf.org


1

Page

TABLE OF AUTHORITIES.........................................iv

SUMMARY OF ARGUMENT.....................................  1

ARGUMENT.............................................................   1

I. The Third Circuit’s Decision on Remand
Is Correct................................................................. 2

A. Procedural History.............................................. 2

1. State Court............... ...............................2

2. District Court............................................3

3. Court of Appeals...................................... 4

4. This Court................................................. 4

5. Court of Appeals on Remand.................. 5

B. The Third Circuit’s Mills Analysis Was
Correct and Supported By the Record..............8

1. The verdict form ’s opening
statement required unanimous 
findings by the jury of mitigating 
circumstance(s)..........................................9

2. The verdict form provided space
for only one check next to each 
mitigating circumstance........................11

TABLE OF CONTENTS



TABLE OF CONTENTS
(continued)

3. Additional language in the
verdict form required unanimous 
finding of mitigating
circumstances...........................................13

4. The verdict form required the
signatures o f all twelve jurors 
below the list of mitigating 
circumstances.......................     14

5. Aggravating and mitigating
circumstances are treated 
identically on the verdict form...............15

6. Mr. Abu-Jamal’s verdict form was
more problematic than the Mills 
verdict form .............................................. 15

7. The trial court’s oral instructions
compounded the Mills error ................. 16

8. Changes to Pennsylvania’s capital
jury instructions and verdict form 
after Mills underscore the 
constitutional error.................................22

C. The Third Circuit Correctly Found That 
This Case Is Very Different Than 
Spisak...................................................................22



Ill

TABLE OF CONTENTS
(continued)

D. The Third Circuit Correctly Found That 
the State Court’s Ruling Unreasonably 
Applied Mills......................................................27

1. The state court’s exclusive focus
on the verdict form was 
objectively unreasonable....................... 28

2. The state court’s Mills analysis
was limited to one portion of the 
verdict form ..................................   29

II. This Court Should Deny Certiorari 
Because Petitioners’ Quarrel Is with the 
Third Circuit’s Application of Properly 
Stated Rules of Law to the Facts of this 
Case.........................................................................37

III. This Court Should Deny Certiorari 
Because the Circuit Court’s Grant of 
Mills Relief is Unlikely to Affect Future 
Cases....................................................................... 38

CONCLUSION.................................................   41

ADDENDUM..............................................  la



IV

Cases

Page(s)

Abu-Jamal v. Horn,
520 F.3d 272 (3d Cir. 2008)..............................  4, 29

Abu-Jamal v. Horn, No. CIV. A. 99-508,
2001 WL 1609690
(E.D. Pa. Dec. 18, 2001)................................. passim

Abu-Jamal v. Secretary,
643 F.3d 370 (3d Cir. 2011)...........................passim

Albrecht v. Horn,
485 F.3d 103 (3d Cir. 2007)................................... 39

Beard v. Abu-Jamal,
130 S. Ct. 1134 (2010)......................................  5, 37

Beard v. Banks,
542 U.S. 406 (2004)................................................. 38

Boyde v. California,
494 U.S. 370 (1990)............................................  8, 32

Commonwealth v. Abu-Jamal,
555 A.2d 846 (Pa. 1989)........................................... 2

Commonwealth v. Abu-Jamal,
720 A.2d 79 (Pa. 1998)....................................passim

TABLE OF AUTHORITIES



V

TABLE OF AUTHORITIES
(continued)

Commonwealth v. Murphy,
657 A.2d 927 (Pa. 1995).........................................  34

Cullen u. Pinholster,
131 S. Ct. 1388 (2011).....................................  27, 28

Fahy u. Horn,
516 F.3d 169 (3d Cir. 2008)..................................  39

Frey v. Fulcomer,
132 F.3d 916 (3d Cir. 1997).....................  21, 39, 40

Gonzalez v. Justices of Mun. Ct. of Boston,
420 F.3d 5 (1st Cir. 2005)........................................5

Grutter v. Bollinger,
539 U.S. 306, 322 (2003)........................................ 38

Hackett v. Price,
381 F.3d 281 (3d Cir. 2004)..................................  39

Harrington u. Richter,
131 S. Ct. 770 (2011)................ ........ ..............  27, 28

Kelly v. South Carolina,
534 U.S. 246 (2002)................................................  28

Kindler v. Horn,
542 F.3d 70 (3d Cir. 2008), 
vacated and remanded on other grounds,
130 S. Ct. 612 (2009) 39



V I

TABLE OF AUTHORITIES
(continued)

Kindler v. Horn,
542 F.3d 70 (3d Cir. 2008),
vacated and remanded on other grounds,
130 S. Ct. 612 (2009)..............................................  39

Mills v. Maryland,
486 U.S. 367 (1988)......................................... passim

Noland v. French, 134 F3d 208 (4th Cir.),
cert, denied, 525 U.S. 851 (1998).......................... 36

Schriro v. Landrigan,
550 U.S. 465 (2007)............................................  7, 37

Smith v. Spisak,
129 S. Ct. 1319 (2009)................................................4

Smith v. Spisak,
130 S. Ct. 676 (2010)....................................... passim

State v. Gumm,
653 N.E.2d 253 (Ohio 1995).................................  22

State v. Jenkins,
473 N.E.2d 264 (Ohio 1984).................................  22

Strickland v. Washington,
466 U.S. 668 (1984)........................... ........... ......... 27

Stutson v. United States,
516 U.S. 163 (1996).................................................... 5



TABLE OF AUTHORITIES

Szuchon v. Lehman,
273 F.3d 299 (3d Cir. 2001)..................................  39

Teague v. Lane,
489 U.S. 288 (1989).............................................. . 38

Uttecht v. Brown,
127 S. Ct. 2218 (2007)................................................

Williams v. Taylor,
529 U.S. 362 (2000)........................................ passim

Zettlemoyer v. Fulcomer,
923 F.2d 284 (3d Cir. 1991)...............  24, 35, 36, 39

Docketed Cases

Banks v. Horn,
No. 99-9005 (3d Cir. Aug. 25, 2004)....................  39

Statutes and Rules

Anti-Terrorism and Effective Death Penalty
Act, 28 U.S.C. § 2254(d).............................. ..passim

Pa. R. Crim. P. 358 A ................................................. 22

Supreme Court R. 10................... ................................37

vii

TABLE OF AUTHORITIES
(continued)



V l l l

TABLE OF AUTHORITIES
(continued)

Other Authorities

Petition for Writ of Certiorari,
Beard v. Abu-Jamal, No, 08-652,
2008 WL 4933629 (U.S. Nov. 14, 1008)



1

In Mills v. Maryland, 486 U.S. 367 (1988), this 
Court declared that instructions indicating that a 
juror cannot “find a particular circumstance to be 
mitigating unless all 12 jurors agree[ ] that the 
mitigating circumstance ha[s] been prove [n] to 
exist,” are unconstitutional. Smith u. Spisak, 130 S. 
Ct. 676, 682 (2010) (citing Mills, 486 U.S. at 380- 
381). In this case, the United States Court of 
Appeals for the Third Circuit, on remand from this 
Court, properly found that the verdict form and oral 
instructions given to Respondent’s sentencing jury 
violated Mills. Specifically, after appropriately 
applying the Anti-Terrorism and Effective Death 
Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), the 
appellate court found that the form and instructions, 
taken together, required unanimity in the finding of 
mitigation, that the instructions at issue are 
materially different from those found to be 
acceptable in Spisak, and that the state court’s 
decision was objectively unreasonable. Because the 
Circuit Court’s decision is appropriately deferential 
and amply supported by the record, certiorari review 
is inappropriate.

ARGUMENT

This Court should deny certiorari because the 
Third Circuit’s decision on remand is correct; the 
Circuit applied properly stated rules of law to the 
facts of this case; and the Circuit Court’s grant of 
Mills relief is unlikely to affect future cases.

SUMMARY OF ARGUMENT



I. The Third Circuit’s Decision on Remand Is
Correct.
The Third Circuit’s conclusion that the Abu- 

Jamal jury instructions and verdict form were 
significantly different from -  and worse than -  those 
in Spisak and that the state court’s rejection of 
Respondent’s Mills claim was objectively 
unreasonable, is well supported by the record. 
Petitioners mischaracterize the Circuit’s reasoning, 
fail to acknowledge substantial differences between 
this case and Spisak and incorrectly describe the 
state of the law at the time of the state court’s 
decision.1

A. Procedural History
The procedural history of Respondent’s Mills 

claim demonstrates that the Circuit Court has 
consistently and appropriately conducted the 
deferential review required by § 2254(d).

1. State Court.

Respondent Mumia Abu-Jamal was sentenced to 
death in Philadelphia, Pennsylvania. The 
Pennsylvania Supreme Court affirmed on direct 
appeal, Commonwealth v. Abu-Jamal, 555 A.2d 846 
(Pa. 1989) (“Abu-Jamal-1”), and denied post­
conviction relief, Commonwealth v. Abu-Jamal, 720 
A.2d 79 (Pa. 1998) (“Abu-Jamal-2”). In the state 
post-conviction proceedings, Mr. Abu-Jamal

2

1 As detailed in the Procedural History, supra at pp. 2-8, 
both the District Court and the Third Circuit properly 
recognized and applied the deferential standard of review set 
forth by § 2254(d).



3

exhausted a claim that the capital sentencing verdict 
form and jury instructions violated Mills.

2. District Court.

On federal habeas review, the U.S. District Court 
for the Eastern District of Pennsylvania (the 
“District Court”) addressed the Mills claim at length. 
Abu-Jamal u. Horn, No. CIV. A. 99-5089, 2001 WL 
1609690, *1, *114-*127 (E.D. Pa. Dec. 18, 2001) 
(“Abu-Jamal-3”).

The District Court emphasized that it was 
applying the deferential standards set forth by the 
AEDPA, 28 U.S.C. § 2254(d), as required by this 
Court’s ruling in Williams v. Taylor, 529 U.S. 362 
(2000). Abu-Jamal-3, 2001 WL 1609690, at *10-*11 
(Williams “cautioned federal habeas courts against 
insufficiently deferential review of state court 
decisions”) (citing Williams, 529 U.S. at 409); id. at 
*107 (same) (citing Williams, 529 U.S. at 409); id. at 
*116 n.82 (“important to reiterate” in addressing a 
Mills claim that “a significant degree of deference is 
due the state supreme court’s application of federal 
law”).

Applying AEDPA, the District Court found that 
the jury instructions and verdict sheet violated Mills 
and that the state court’s decision on the Mills claim 
was objectively unreasonable under § 2254(d)(1), 
Abu-Jamal-3, 2001 WL 1609690, at 130. 
Accordingly, the District Court vacated the death 
sentence. Id.



4

3. Court of Appeals.

The Third Circuit unanimously affirmed the 
District Court’s finding of Mills error. Abu-Jamal v. 
Horn, 520 F.3d 272 (3d Cir. 2008) (“Abu-Jamal-4”).

It explained that it was applying the deferential 
standards of § 2254(d). Id. at 292 & n.21 (describing 
AEDPA’s “deferential standard” of review); id. at 
278-79 (collateral review requires deference unless 
“unreasonable application” threshold under § 
2254(d)(1) is met); id. at 279, 287-88 (Mr. Abu- 
Jamal’s habeas petition was “subject to AEDPA”); id. 
at 300 (“Our review is limited to whether the 
Pennsylvania Supreme Court unreasonably applied 
Mills.”) (citing § 2254(d)(1) and Williams, 529 U.S. at 
405).

After applying Mills and § 2254(d), and
considering the verdict form, the oral instructions, 
and the state court’s ruling, the Circuit affirmed the 
grant of habeas relief. Id. at 301-304.

4. This Court.

In 2008, Petitioners filed a certiorari petition, 
seeking this Court’s review of the Third Circuit’s 
ruling. Petition for Writ of Certiorari, Beard v. Abu- 
Jamal, No. 08-652, 2008 WL 4933629 (U.S. Nov. 14, 
1008).

On February 23, 2009, while Petitioners’
certiorari petition was pending, this Court granted 
certiorari in Smith v. Spisak, 129 S. Ct. 1319 (2009), 
to review, inter alia, the Sixth Circuit’s grant of 
relief under Mills. On January 12, 2010, this Court 
reversed the Sixth Circuit. Spisak, 130 S. Ct. 676.



5

On January 19, 2010, this Court issued a “GVR” 
order in the instant case: “Petition for writ of
certiorari granted. Judgment vacated, and case 
remanded to the United States Court of Appeals for 
the Third Circuit for further consideration in light of 
Smith v. Spisak.” Beard v. Abu-Jamal, 130 S. Ct. 
1134 (2010) (“Abu-Jamal-5”).2

5. Court of Appeals on Remand.

After new briefing and oral argument, the Third 
Circuit again unanimously found that the jury 
instructions and verdict form violated Mills, that the 
state court unreasonably applied clearly established 
federal law, and that habeas relief was required 
under § 2254(d)(1). Abu-Jamal v. Secretary, 643 
F.3d 370, 372 (3d Cir. 2011) (“Abu-Jamal-ff’). '

The Third Circuit again emphasized that it was 
applying the deferential standards of AEDPA’s § 
2254(d):

Our review on remand is limited to 
whether the Pennsylvania Supreme 
Court unreasonably applied United 
States Supreme Court precedent in 
finding no constitutional defect in the 
jury instructions and verdict form 
employed in the sentencing phase of 
Abu-Jamal’s trial. See 28 U.S.C. §

zThis Court’s “GVR” order was what Justice Scalia has 
suggested “might be called [a] ‘no-fault V & R’: vacation of a 
judgment and remand without any determination of error in 
the judgment below.” Stutson v. United States, 516 U.S. 163. 
178 (1996) (Scalia, J., dissenting) (emphasis in original); see 
Gonzalez v. Justices of Mun. Ct. of Boston, 420 F.3d 5, 7 (1st 
Cir. 2005).



6

2254(d)(1); Williams [ ], 529 U.S. [at]
405-06 . . . .  Pursuant to the Supreme 
Court’s order, we consider this question 
in light of Spisak . . . .

Under [§ 2254(d)], a state prisoner’s 
application for a writ of habeas corpus 
will be denied unless the adjudication of 
a claim in state court proceedings ‘‘(1) 
resulted in a decision that was contrary 
to, or involved an unreasonable 
application of, clearly established 
Federal law, as determined by the 
Supreme Court of the United States; or 
(2) resulted in a decision that was based 
on an unreasonable determination of 
the facts in light of the evidence 
presented in the State court 
proceeding.” 28 U.S.C. § 2254(d)(l)-(2).

Abu-Jamal-6, 643 F.3d at 373. The Circuit 
explained that because the state court properly 
identified and applied Mills to Respondent’s claim, 
its decision was not “contrary to” clearly established 
law. Id. at 374 (citing Williams, 529 U.S. at 405). 
The Circuit therefore considered whether the state 
court’s decision involved an “unreasonable 
application” of federal law under § 2254(d)(1), and 
noted that:

“a federal habeas court may not issue 
the writ simply because that court 
concludes in its independent judgment 
that the relevant state-court decision 
applied clearly established federal law 
erroneously or incorrectly. Rather, that



7

Abu-Jamal-6, 643 F.3d at 374. Thus:

in making this inquiry, we “should ask 
whether the state court’s application of 
clearly established federal law was 
objectively unreasonable.” Williams,
529 U.S. at 409.

Abu-Jamal-6, 643 F.3d at 374.
The Circuit then observed that its specific task on 

remand was to reconsider its earlier ruling in light of 
Spisak. Because this Court found no Mills violation 
in Spisak, the Circuit first “evaluate[d] whether a 
Mills violation has occurred, and then proceeded] to 
examine whether the Pennsylvania Supreme Court’s 
application of Mills was objectively unreasonable 
under the second clause of § 2254(d)(1).” Id. at 374.

After carefully comparing the Mills and Abu- 
Jamal verdict sheets and jury instructions, id. at 
374-77, the Circuit concluded that “the [.Abu-Jamal] 
verdict form together with the jury instructions” 
indicated that the jury could only consider the 
mitigating circumstances that it found unanimously. 
Id. at 377.

It then compared the Abu-Jamal and Spisak 
instructions and verdict forms, id. at 377-81, and 
found that the “verdict form and judge’s instructions 
used in the sentencing phase of Abu-Jamal’s trial are 
materially different and easily distinguished from 
those at issue in Spisak,” id. at 379. Thus, the

application must also be unreasonable.”
Williams, 529 U.S. at 411; see Schriro v.
Landrigan, 550 U.S. 465, 473 [ ] (2007).



8

Circuit concluded that its finding of a Mills violation 
was “consistent with Spisak.” Id. at 380-81.

Finally, the Third Circuit applied AEDPA’s 
deferential standards to the state court’s decision on 
the Mills claim and concluded that it was objectively 
unreasonable. Id. at 374, 381. Thus, the Third 
Circuit again affirmed the District Court’s grant of 
habeas relief as to Mr. Abu-Jamal’s death sentence. 
Id. at 383.

B. The Third Circuit’s Mills Analysis Was 
Correct and Supported By the Record.

The Circuit unanimously found that the “verdict 
form together with the jury instructions read that 
unanimity was required in the consideration of 
mitigating circumstances and that there is a 
substantial probability3 the jurors believed they 
were precluded from independent consideration of 
mitigating circumstances in violation of Mills.” Id. 
at 377.

3 The Third Circuit noted that in Spisak, this Court 
described the relevant standard to be a “substantial possibility” 
but concluded that since Mills termed the standard to be 
“substantial probability,” this Court’s use of the word, 
“possibility” was likely inadvertent. Abu-Jamal-6, 643 F.3d at 
374 n.3. In Boyde v. California, 494 U.S. 370 (1990), this 
Court clarified that the relevant legal standard was “whether 
there is a reasonable likelihood that the jury has applied the 
challenged instruction in a way that prevents consideration of 
constitutionally relevant evidence.” Id. at 378. The Third 
Circuit found that a ‘“substantial probability’, is neither more 
nor less than [the Boyde standard of] a ‘reasonable likelihood’” 
and that it would utilize the “substantial probability” standard 
to be consistent with Spisak. Abu-Jamal-6, 643 F.3d at 375 n.4.



9

Petitioners assert that requiring unanimity for 
the weighing result does not violate Mills. Petition at 
12. Respondent agrees. Read in isolation from the 
rest of the instructions and verdict form, the 
weighing instruction correctly stated the law.

Petitioners erroneously contend, however, that 
the Third Circuit found a Mills violation based solely 
on this weighing language. Id. at 11; see id. at 10, 
12, 24. Contrary to Petitioners’ claims, the opinion 
makes clear that it was the rest of the verdict form 
along with the oral instructions that created a 
substantial probability that the jury would believe it 
could only consider and weigh unanimously found 
mitigating circumstances against the aggravating 
circumstances. Abu-Jamal-6, 643 F.3d at 375-76. 
The Circuit’s finding that the state court was 
objectively unreasonable in “conduct [ing] an 
incomplete analysis of only a portion of the verdict 
form, rather than the entire form,” id. at 381, offers 
further proof that it did not rely solely on the 
weighing instruction as the basis for granting Mills 
relief. As in Mills, Mr. Abu-Jamal’s jury was misled 
regarding the task that preceded the ultimate 
weighing — the process of identifying and considering 
mitigation.

Accordingly, the appellate court’s finding of a 
Mills violation was correct.

1. The verdict form’s opening 
statement required unanimous 
findings by the jury of mitigating 
circumstance (s).

The opening language on Page One of the verdict 
form reads as follows:



10

We, the jury, having heretofore 
determined that the above-named 
defendant is guilty of murder of the 
first degree, do hereby further find that:

App. 131. That language is followed by:

(1) We, the jury, unanimously 
sentence the defendant to

El death

□  life imprisonment.

(2) (To be used only if the aforesaid 
sentence is death)

We, the jury, have found 
unanimously

□  at least one aggravating
circumstance and no mitigating 
circumstance. The aggravating 
circumstance(s) is/are

3  one or more aggravating 
circumstances which outweigh 
any mitigating circumstances. 
The aggravating circumstance(s) 
is/are A .

The mitigating circumstance(s) 
is/are A .

Id. at 131-32.



11

By opening with “fwje, the jury, having heretofore 
determined that the defendant is guilty of murder of 
the first degree, do hereby further find that-”, id. at 
131 (emphasis added), the verdict form required that 
everything marked on it be found by the same jury 
that found Mr. Abu-Jamal guilty — i.e., the
unanimous jury. The form did not allow an 
individual juror to find anything on his own, 
including a mitigating circumstance.

Page One of the verdict form required the jury to 
specify the sentence; what u[t]he aggravating 
circumstance(s) is/are and what “ [t]he
mitigating circumstance(s) is/are Id. at 131-32. 
(emphasis added). Because the opening statement 
required all verdict form findings to be unanimous, 
the form mandated that the sentence, the 
aggravating circumstances and the mitigating 
circumstances be unanimously found. While the 
first two requirements are proper, the third violates 
Mills.

2. The verdict form provided space 
for only one check next to each 
mitigating circumstance.

Pages Two and Three of the verdict form read as 
follows:

AGGRAVATING AND MITIGATING 
CIRCUMSTANCES

AGGRAVATING CIRCUMSTANCED:

(a) The victim was a fireman, 
peace officer or public servant 
concerned in official detention



12

who was killed in the
performance of his duties. (*'')

[nine more statutory aggravating 
circumstances, labeled (b)-(j) and 
followed by a ( ), not checked by 
the jury]

MITIGATING CIRCUMSTANCE(S):

(a) The defendant has no
significant history of prior 
criminal convictions (S)

[seven more statutory mitigating 
circumstances, labeled (b)-(h) and 
followed by a ( ), not checked by 
the jury]

[twelve lines with signatures of all 
jurors]

App. 132-35.
Thus, the jury was presented with a list of ten 

possible aggravating circumstances, and a list of 
eight possible mitigating circumstances, with a “( )” 
next to each aggravating and mitigating 
circumstance to be checked, if found. The space 
provided next to each mitigating circumstance is too 
small for any marking beyond a single checkmark. 
Also, the form did not provide a mechanism for any 
individual juror to find, or indicate that s/he has 
found, independent of other jurors, a mitigating 
circumstance. These factors reinforce the notion 
that only unanimously found mitigating



13

circumstances were to be considered. Read together 
with the opening statement that directed the jury to 
record only those items that are were unanimously 
found, the verdict form led the jury to believe that it 
could only consider an aggravating or mitigating 
circumstance that was unanimously found.

3. Additional language in the 
verdict form required
unanimous finding of mitigating 
circumstances.

Just below the lines calling for the jury’s 
sentence, the following express unanimity 
requirement appears on Page One of the verdict 
form:

We, the jury, have found 
unanimously

□  at least one aggravating 
circumstance and no mitigating 
circumstance. The aggravating 
circumstance(s) is/are_________ .

I5D one or more aggravating 
circumstances which outweigh 
any mitigating circumstances.
The aggravating circumstance(s) 
is/are A .

The mitigating circumstance(s) 
is/are A

App. 131-32 (emphasis added).
This portion of the form also requires the jury to 

find and consider only the aggravating and



14

mitigating circumstances that it has “found 
unanimously.” Id. at 131 (emphasis added). Because 
this language was read in conjunction with the 
verdict form’s opening statement requiring the jury 
to note only those findings that “we, the jury, have 
found unanimously,” and the list of choices, each 
with one corresponding box that could be checked, 
directly underneath the opening statement, the only 
plausible interpretation is that the specifications of 
aggravators and mitigators on the lines provided 
required unanimous findings.

4. The verdict form required the 
signatures of all twelve jurors 
below the list of mitigating 
circumstances.

The end of the verdict form, just below the list of 
mitigating circumstances on Page Three, requires 
the signatures of all twelve jurors. Id. at 135. This 
also ensured that only unanimously found 
mitigating circumstances are considered. If fewer 
than twelve jurors found a mitigating circumstance, 
checked it on the checklist on Page Three (although 
the form opens with a requirement that only 
findings of the unanimous jury be recorded), and 
wrote it on Page One (although Page One states “We 
the jury have found unanimously . . . [t]he mitigating
circumstanee(s) is/are ___”, id. at 131-32), then the
jurors who disagreed could not sign the verdict form 
without violating their oaths. The presence of all 
twelve signatures confirms the form’s direction to 
unanimously consider and find mitigating 
circumstances.



15

5. Aggravating and mitigating 
circumstances are treated 
identically on the verdict form.

The unanimous finding of mitigating 
circumstances was also required by the verdict 
form’s consistently identical treatment of 
aggravating and mitigating circumstances. To 
comply with Mills, the jury would have had to ignore 
this and believe, contrary to the form’s plain 
language and without any rational basis, that 
aggravation and mitigation should be treated 
differently. The court must “presume that, unless 
instructed to the contrary, the jury would read 
similar language throughout the form consistently.” 
Mills, 486 U.S. at 378.

6. Mr. Ahu-Jamal’s verdict form 
was more problematic than the 
Mills verdict form.

In finding constitutional error, the Third Circuit 
relied upon the similarities between the Mills and 
Abu-Jamal verdict forms, Abu-Jamal-6, 643 F.3d at 
375-77. However, for several reasons, the Abu-Jamal 
form was more likely than the Mills form to be 
understood to require a unanimous mitigation 
finding.

The Mills form allowed the jury to mark “yes” or 
“no” for each listed mitigating circumstance, and the 
list was prefaced with: “ [W]e unanimously find that 
each of the following mitigating circumstances which 
is marked ‘yes’ has been proven to exist . . . and each 
mitigating circumstance marked ‘no’ has not been 
proven . . . .” Id. at 375. Maryland’s high court 
interpreted the jury’s “no” entries as showing that



16

the jury unanimously rejected the “no”-marked 
mitigating circumstance. See id. at 372. So- 
interpreted, the death sentence was constitutional — 
if the jury unanimously rejected each mitigating 
circumstance, no individual juror found a mitigating 
circumstance and no juror was prevented from 
giving effect to mitigation that s/he believed to exist.

This Court found the Maryland court’s 
interpretation of the form “plausible” in light of the 
form’s language. It was nevertheless declared 
unconstitutional because it was unclear that the jury 
interpreted the form the same way as the Maryland 
court. See id. at 375-76.

The Abu-Jamal form is not even susceptible to 
the “plausible” interpretation that the Maryland 
court gave the Mills form. Unlike in Mills, Mr. Abu- 
Jamal’s jury’s only options were to check a 
mitigating circumstance if it was found, or leave it 
blank. The failure to check plainly signifies the 
jury’s failure to unanimously find a mitigating 
circumstance. Thus, the Mills violation is clearer in 
Abu-Jamal than it was in Mills itself.

7. The trial court’s oral 
instructions compounded the 
Mills error.

As the Third Circuit recognized, “the instructions 
throughout and repeatedly emphasized unanimity.” 
Abu-Jamal-6, 643 F.3d at 377. The judge told the 
jury: “You will be given a verdict slip upon which to 
record your verdict and findings.” App. 127. Here, 
and throughout, the judge made no distinction 
between “findings” of aggravating circumstances and 
“findings” of mitigating circumstances, except for



17

different burdens of proof. See infra. Section I. B. 7. 
Thus, the jury had no reason to believe that there 
were any differences (other than burdens of proof) 
between the processes for finding aggravating and 
mitigating circumstances — the instructions required 
both to be found unanimously.

The judge also instructed the jury on how to use 
the checklist of aggravating circumstances on Page 
Two and how to identify aggravating circumstances 
on Page One:

[W]hat you do, you go to Page 2. Page 2 
lists all the aggravating circumstances.
They go from small letter (a) to small 
letter (j). Whichever one of these that 
you find, you put an “X” or check mark 
there and then, put it in the front.
Don’t spell it out, the whole thing, just 
what letter you might have found.

App. 128.
The judge then used materially identical 

language to explain how to use Page Three’s 
checklist of mitigating circumstances and how to 
complete Page One’s identification of the mitigating 
circumstances:

[Tjhose mitigating circumstances 
appear on the third page here, they run 
from a little (a) to a little letter (h).
And whichever ones you find there, you 
will put an “X” mark or check mark and 
then, put it on the front here at the 
bottom, which says mitigating 
circumstances. And you will notice that



18

on the third or last page, it has a spot 
for each and every one of you to sign his 
or her name on here as jurors . . . .

App. 129.
These instructions, like the verdict form itself, 

treat aggravating and mitigating circumstances 
identically -  both were to be “found” and recorded by 
a unanimous jury. As the Third Circuit found, “in 
light of the language and parallel structure of the 
form and instructions in relation to aggravating and 
mitigating circumstances, it is notable that neither 
the verdict form nor the judge’s charge said or in any 
way suggested that the jury should apply the 
unanimity requirement to its findings of aggravating 
but not mitigating circumstances.” Abu-Jamal-6, 
643 F.3d at 377. The instructions do not even hint 
that the jury must unanimously find an aggravating 
circumstance, but not a mitigating one. Instead, the 
last instruction on finding mitigating circumstances 
and signing the form “places in the closest temporal 
proximity the task of finding the existence of 
mitigating circumstances and the requirement that 
each juror indicate his or her agreement with the 
findings of the jury” by signing the form. Abu- 
Jamal-3, 2001 WL 1609690, at *125. The judge’s 
instructions on how to use the verdict form thus 
exacerbated the form’s Mills error.

Other oral instructions also led the jury to treat 
aggravating and mitigating circumstances in the 
same manner:

Members of the jury, you must now 
decide whether the defendant is to be



19

sentenced to death or life 
imprisonment. The sentence will
depend upon your findings concerning 
aggravating and mitigating
circumstances. The Crimes Code 
provides that the verdict must be a 
sentence of death if the jury 
unanimously finds at least one
aggravating circumstance and no 
mitigating circumstance, or if the jury 
unanimously finds one or more
aggravating circumstances which
outweigh any mitigating circumstances.

The verdict must be a sentence of life 
imprisonment in all other cases.

Remember, that your verdict must be a 
sentence of death if you unanimously 
find at least one aggravating 
circumstance and no mitigating 
circumstance. Or, if you unanimously 
find one or more aggravating 
circumstances which outweigh any 
mitigating circumstances. In all other 
cases, your verdict must be a sentence 
of life imprisonment.

App. 124-25; 126-27. In these instructions, like all of 
the instructions, aggravating and mitigating 
circumstances are treated identically as matters to 
be “found” by the unanimous jury or not considered 
at all. Nothing in the instructions would allow the 
jury to reasonably conclude that mitigating and



20

aggravating circumstances should be treated 
differently.

The Third Circuit also found that the failure to 
distinguish between the process of finding 
aggravators and mitigators was “notable because the 
trial court distinguished between the two with 
respect to the proper burden of proof the jury should 
apply.” Abu-Jamal-6, 643 F.3d at 377. In this 
regard, the court instructed the jury that:

Whether you sentence the defendant to 
death or to life imprisonment will 
depend upon what, if any, aggravating 
or mitigating circumstances you find 
are present in this case.
[Aggravating circumstances must be 
proved by the Commonwealth beyond a 
reasonable doubt, while mitigating 
circumstances must be proved by the 
defendant by a preponderance of the 
evidence.

Addendum at 2a.

The Commonwealth has the burden of 
proving aggravating circumstances 
beyond a reasonable doubt. The 
defendant has the burden of proving 
mitigating circumstances, but only by a 
preponderance of the evidence. This is 
a lesser burden of proof than beyond a 
reasonable doubt.

App. 126.



21

Since the instructions stressed the different 
burdens for proving aggravating and mitigating 
circumstances, but were silent as to any differences 
in the manner of proof, jurors would naturally 
conclude that both “aggravating and mitigating 
circumstances must be discussed and unanimously 
agreed to, as is typically the case when considering 
whether a burden of proof has been met.” See Frey v. 
Fulcomer, 132 F.3d 916, 924 (3d Cir. 1997)
(emphasis in original). Thus, the burden of proof 
instructions “likely cemented the jury’s mistaken 
impression that it was obligated not to consider a 
mitigating circumstance that was found to exist by 
anything other than the entire panel.” Abu-Jamal-3, 
2001 WL 1609690, at *119 (emphasis in original).

The jury instructions were also problematic 
because the judge repeatedly used the pronoun “you” 
to refer without distinction to the entity that “finds” 
the defendant guilty, “finds” a sentence, “finds” 
aggravating circumstances, and “finds” mitigating 
circumstances.4 To satisfy Mills, the jury would 
have to have know that “you” meant the “unanimous 
jury” for the first three matters, but meant “each 
individual juror ’ for the last. However, the “natural 
interpretation,” Mills, 486 U.S. at 381, of the 
instructions was that the same “you” -  the 
unanimous jury — must make all of these findings.

4 See also App. 1224-29.



22

8. Changes to Pennsylvania’s 
capital jury instructions and 
verdict form after Mills 
underscore the constitutional 
error.

Just as this Court did in Mills, the Third Circuit 
noted that Pennsylvania adopted a new uniform 
sentencing verdict form for capital cases after Mills 
was decided. Abu-Jamal-6, 643 F.3d at 382 (citing 
Pa. R. Crim. P. 358 A). “ [T]he new form . . . makes 
explicit that unanimity is not required in 
determining the existence of mitigating 
circumstances.” Id.

The Pennsylvania Suggested Standard Criminal 
Jury Instructions were likewise amended in 
response to Mills and now make clear that the jury 
needs to be unanimous before finding an aggravating 
circumstance, but need not be unanimous to consider 
or find a mitigating circumstance. See id. “ [Tjhese 
clarifications highlight the ambiguity at issue in this 
case.” Id. at 383.

C. The Third Circuit Correctly Found That 
This Case Is Very Different Than Spisak.

This Court found that the Spisak jury 
instructions and verdict form did not violate Mills. 
Mr. Spisak’s trial was in Ohio where capital juries 
find the presence or absence of aggravating factors 
at the guilt phase. Spisak, 130 S. Ct. at 680, 683. 5 
Thus, after the penalty phase evidence was 
presented, the legal instructions and form given to

5 See State u. Gumm, 653 N.E.2d 253, 260 (Ohio 1995); 
State v. Jenkins, 473 N.E.2d 264, 277 (Ohio 1984).



the jury were brief. They can be summarized as 
follows:

1. Oral Instructions:

a. Explanation and examples of 
mitigating factors;

b. Weighing instruction — aggravating 
circumstances against mitigating 
circumstances.

2. Verdict Form:

a. Two forms for each murder count — 
both solely addressed weighing;

b. One form read, in its entirety: “We 
the jury in this case . . .  do find 
beyond a reasonable doubt that the 
aggravating circumstances which 
the defendant . . . was found guilty 
of committing were sufficient to 
outweigh the mitigating factors 
present in this case. We the jury 
recommend that the sentence of 
death be imposed.”

c. The other form read, in its entirety: 
“We the jury in this case . . .  do find 
beyond a reasonable doubt that the 
aggravating circumstance which the 
defendant . . . was found guilty of 
committing are not sufficient to 
outweigh the mitigating factors 
present in this case. We the jury

23



24

recommend that the defendant . . . 
be sentenced to life imprisonment.”

Id. at 683-84.
Petitioners argue that the weighing instructions 

in Spisak (2b and 2c above) are virtually identical to 
the weighing instruction given here6 7 therefore there 
was no Mills violation in Mr. Abu-Jamal’s trial. See 
Petition at 9. However, this argument completely 
ignores the additional instructions and language in 
Mr. Abu-Jamal’s verdict form, none of which were 
present in Spisak. As the Third Circuit recognized, 
“ [b]y contrast with Spisak, the identified language of 
unanimity here indisputably addresses more than 
the final balancing of aggravating and mitigating 
factors.” Abu-Jamal-6, 643 F.3d at 379.

The most significant difference between Abu- 
Jamal and Spisak is that the Abu-Jamal verdict 
form contains express unanimity requirements for 
finding mitigating circumstances, and demands that 
the jury specify which mitigating circumstances it 
has unanimously found. See App. 131-32, 134-35. 
The Spisak form, on the other hand, did not require 
the jury to make any findings about mitigating 
circumstances, and certainly did not require the jury 
to specify what mitigating circumstances were 
found. See 130 S. Ct. at 684. Instead, the only 
finding the Spisak form required the jury to make 
was the ultimate sentence. IdP

6 This is not entirely true. The word, “unanimous” does not 
appear on the verdict forms in Spisak.

7 While the Spisak form is radically different from the Abu- 
Jamal form, it is similar to the form in Zettlemoyer v. Fulcomer,



25

Petitioners argue that there “is no distinction” 
between the fact that Mr. Abu-Jamal's jury had to 
find and report on found mitigating circumstances 
and the Spisak jury did not because the Spisak jury 
still had to decide on mitigation. See Petition at 15. 
This entirely misses the point. The Mills and Abu- 
Jamal juries (but not the Spisak jury) were required 
to specify the mitigating circumstances that were 
found. The Abu-Jamal jury instructions and verdict 
form that purported to explain how to find, and 
specify in writing, the proven mitigating 
circumstances ultimately produced the Mills 
violation. See supra Section 1, B. Indeed, the format 
of the Abu-Jamal verdict form made it virtually 
impossible for the jury to record or communicate 
mitigation not found unanimously. The Spisak 
verdict form had no such problem even though the 
jury in that case considered the question of 
mitigation.

Abu-Jamal’s requirement that the jury specify 
the found aggravators and mitigators created 
additional Mills problems. A pervasive feature of 
the Abu-Jamal verdict form and jury instructions, 
which contributed to the Third Circuit’s conclusion 
that they violate Mills, is their identical treatment 
(aside from burden of proof) of aggravating and 
mitigating circumstances to be found by the jury. 
The natural conclusion is that, apart from burdens of 
proof, aggravating and mitigating circumstances 
should be found in the same way -  unanimously. See 
Abu-Jamal-6, 643 F.3d at 377.

923 F.2d 284 (3d Cir. 1991), which the Third Circuit held did 
not violate Mills. Id. at 308. See also infra Section I. D. 2.



26

The Spisak verdict form and jury instructions 
lacked this similar treatment of aggravating and 
mitigating factors, mainly because the structure of 
the Ohio capital sentencing scheme in Spisak 
rendered any similarities between proof of 
aggravating and mitigating factors highly unlikely. 
As explained above, in Spisak -  as in every Ohio 
capital case -  the aggravating factors were 
introduced to and found by the jury at the guilt 
phase; at capital sentencing, the judge then 
“instructed the jury that the aggravating factors 
they would consider were the specifications that the 
jury had found proved beyond a reasonable doubt at 
the guilt phase.” Spisak, 130 S. Ct. at 683. Because 
the aggravating factors were found at the guilt 
phase, the jury had no reason to believe that 
consideration of mitigating circumstances, which 
were first introduced at the sentencing phase, had 
anything in common with the manner in which 
aggravating factors were proved. The contrast with 
Abu-Jamal — where aggravating and mitigating 
circumstances were introduced together at sentencing 
and treated iden tically, apart from burden of proof — 
is profound.

Another important distinction between Spisak 
and Abu-Jamal is that Mr. Abu-Jamal’s verdict form 
required the signatures of all twelve jurors just 
below the checklist on which the jury must record its 
findings of mitigating circumstances. The natural 
reading of this is that all twelve jurors must agree 
that a mitigating factor exists, just as all twelve 
must agree as to the existence of each aggravating 
factor and the ultimate sentence. See supra Section 
I. B. 4. This natural reading of the signatures



27

requirement was reinforced by the judge’s oral 
instructions on how to use the form, which expressly 
connected the signatures requirement with finding 
mitigating circumstances. See supra Section I. B. 7. 
Although the Spisak form required the signatures of 
all twelve jurors, this fact was wholly insignificant 
because the verdict form did not require the jury to 
specify what mitigating circumstances were found 
and the oral instructions did not connect the 
signatures requirement to finding mitigating 
circumstances. 130 S. Ct. at 684. As a consequence, 
signing the Spisak form signified nothing about an 
individual juror’s finding or consideration of 
mitigation.

Thus, upon remand for consideration of Spisak’s 
impact on its earlier ruling, the Third Circuit 
correctly noted the many differences between Abu- 
Jamal and Spisak and properly determined that 
these differences were crucial to Mr. Abu-Jamal’s 
right to have his sentencing jury consider mitigation.

D. The Third Circuit Correctly Found That 
the State Court’s Ruling Unreasonably 
Applied Mills.

On remand from this Court, the Third Circuit 
again found that the Pennsylvania Supreme Court 
unreasonably applied Mills.8 Abu-Jamal-6, 643 F.3d

8 Petitioners contend that the Third Circuit’s review of the 
state court’s decision should have been “doubly deferential.” 
Petition at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 
(2011); Harrington v. Richter, 131 S. Ct. at 770, 788 (2011)). 
Petitioners are mistaken -  the “double deference” requirement 
governs only claims of ineffective assistance of counsel under 
Strickland v. Washington, 466 U.S. 668 (1984). See



28

at 372. This conclusion rested upon two primary 
factors: (1) the state court failed to evaluate the
combined effect of the verdict form and the oral 
instructions and (2) the state court “conducted an 
incomplete analysis of only a portion of the verdict 
form, rather than the entire form.” Id. at 381.9

1. The state court’s exclusive focus 
on the verdict form was 
objectively unreasonable.

The Third Circuit recognized that by the time Mr. 
Abu-Jamal’s jury reached the final weighing and 
verdict stages of its deliberations, the court’s oral 
instructions combined with the verdict form to create 
a substantial probability that the jury would only 
weigh mitigating circumstances that were found

Harrington, 131 S. Ct. at 788; Pinholster at 1410-11. 
Furthermore, as detailed in the Procedural History and 
elsewhere above, the Third Circuit, in finding the state court’s 
decision objectively unreasonable, properly identified and 
applied the deferential standard of review required by § 2254. 
Thus, Petitioners’ assertion that the Circuit failed to accord 
appropriate deference to the state court decision, Petition at 13- 
14, 18, 19, 25, 29, is false. In order to accept Petitioners’ 
arguments this Court would have to believe that the deference 
language repeatedly cited by the Circuit was a smokescreen to 
hide its bad faith decisionmaking.

9 It was also objectively unreasonable and contrary to this 
Court’s precedent for the Pennsylvania Supreme Court to fault 
Mr. Abu-Jamal for offering “absolutely no evidence in support 
of this claim at the PCRA hearing.” Abu-Jamal-2, 720 A.2d at 
119. See Mills, 486 U.S. at 381 (“There is, of course, no 
extrinsic evidence of what the jury in this case actually 
thought. We have before us only the verdict form and the 
judge’s instructions.”); Kelly v. South Carolina, 534 U.S. 246, 
256 (2002). Here, as in Mills and most cases challenging jury 
instructions, the claim is based upon “the verdict form and the 
judge’s instructions.” Mills, 486 U.S. at 381.



29

unanimously. Abu-Jamal-6, 643 F.3d at 381-82. 
Even if the verdict form’s language on weighing, 
taken in isolation, was proper, by ignoring the 
impact of the misleading oral instructions and other 
parts of the form, the state court failed to account for 
the “effect on the jury of being instructed identically 
and contemporaneously with respect to the making 
of individual determinations regarding mitigating 
and aggravating circumstances.” Id. at 381. See 
supra Section I. B. 7.

Petitioners contend that the Circuit’s criticism of 
the state court’s failure to consider the oral jury 
instructions is unfair because Mr. Abu-Jamal’s state 
post-conviction appeal relied only on the verdict 
form. Petition at 20. This is untrue. Indeed, the 
Third Circuit rejected this exact argument and found 
that Mr. Abu-Jamal’s state court pleadings “raised a 
Mills claim based on both the verdict form and the 
jury instructions.” Abu-Jamal-4, 520 F.3d at 299- 
300.

2. The state court’s Mills analysis 
was limited to one portion of the 
verdict form.

The Circuit found the state court’s conclusions 
about the verdict form to be objectively unreasonable 
because the state court only considered one portion 
of that form. Abu-Jamal-6, 643 F.3d at 381-82. In 
Section I. B above, Mr. Abu-Jamal has presented in 
significant detail the Mills-related problems 
presented by the verdict form in his trial. Almost 
none of these problems were addressed by the state 
court because it did not address the entire the form. 
For example, the Third Circuit found it objectively



30

unreasonable that the state court failed to “address 
the likely effect on the jury of having to choose 
aggravating and mitigating circumstances from 
visually identical lists and represent its findings as 
to each in an identical manner.” Id. at 382.

Instead, the Pennsylvania Supreme Court’s 
decision merely noted that the verdict form 
“consisted of three pages” and reached a series of 
conclusions that unreasonably focused on language 
viewed in isolation from the complete form and the 
oral instructions. Abu-Jamal-2, 720 A.2d at 119. By 
ignoring the ways in which the verdict form imposed 
a “requirement of unanimity,” the state court 
unreasonably applied Mills. See Williams, 529 U.S. 
at 397-98 (state court decision “unreasonable insofar 
as it failed to evaluate the totality o f ’ relevant facts).

(a) The state court inaccurately found that the 
“requirement of unanimity is found only at Page One 
in the section wherein the jury is to indicate its 
sentence.” Id. In addition to stating “We, the jury 
unanimously sentence the defendant to death,” Page 
One also states, “We, the jury, have found 
unanimously . . . The aggravating circumstance(s)
is /a re____ A____ . The mitigating circumstance(s)
is/are____A .” App. 131-32. Thus, Page One’s
“requirement of unanimity” expressly applied to the 
finding of both aggravating and mitigating 
circumstances.

In addition to the express use of the word 
“unanimously,” the verdict form opens with the 
requirement that everything on the form be the 
“findings]” of “the jury” that found Mr. Abu-Jamal 
guilty — i.e., the unanimous jury. This applies to



31

Page One’s findings of “mitigating circumstance(s)” 
and to Page Three’s checklist of mitigating 
circumstances, just as clearly as it applies to Page 
One’s findings of “aggravating circumstance(s)” and 
Page Two’s checklist of aggravating circumstances. 
Moreover, the verdict form closes with the required 
signatures of all twelve jurors, reinforcing the 
opening statement that all findings -  including 
mitigation -  must be made unanimously. The state 
court, however, “never addressed the effect of the 
lead-in language.” Abu-Jamal-3, 2001 WL 1609690, 
at *126 n.91.

(b) The state court described the second page of 
the verdict form as containing “all the statutorily 
enumerated aggravating circumstances and . . .  a 
designated space for the jury to mark those 
circumstances found.” Abu-Jamal-2, 720 A.2d at 119. 
It unreasonably failed to recognize that the list of 
mitigating circumstances on Page Three is identical 
in format to this list of aggravating circumstances 
and, therefore, “the natural interpretation of the 
form,” Mills, 486 U.S. at 381, was that both 
mitigating and aggravating circumstances must be 
unanimously found.

(c) The state court unreasonably relied on the 
fact that Page Three, which contains the mitigating 
circumstances checklist, “includes no reference to a 
finding of unanimity.” Abu-Jamal-2, 720 A.2d at 
119. As stated above, the verdict form opens with a 
requirement that everything therein be found by the 
unanimous jury; and the form ends -  on Page Three, 
just below the checklist of mitigating circumstances 
-  with a requirement that all twelve jurors sign, 
indicating their unanimous agreement with



32

everything on the form. Furthermore, although 
Page Two’s list of aggravating circumstances also 
contains no “reference to a finding of unanimity,” it 
is undisputed that the jury knew it had to find 
aggravators unanimously. This identical treatment 
of aggravating and mitigating circumstances creates 
a “reasonable likelihood,” Boyde, 494 U.S. at 378, 
that the jury believed it had to find mitigating 
circumstances unanimously.

Furthermore, the state court itself observed that 
Page Three is the “section where the jury is to 
checkmark those mitigating circumstances found? 
Abu-Jamal-2, 720 A.2d at 119 (emphasis added). 
There is a “reasonable likelihood” that the jury 
understood Page Three in exactly that way — that 
only mitigating circumstances “found” by “the jury” -  
not individual jurors -  should be checked and 
considered. In order to read Page Three consistent 
with Mills, the jury would have to know that each 
individual juror should check those mitigating 
circumstances s/he found, even if the other jurors 
disagreed. To say the least, that is an odd reading of 
the verdict form. Moreover, since the jury was to 
turn in one verdict form, not twelve, it would have 
no way of knowing how to communicate the lack of 
unanimity for any mitigating factor. In addition, the 
jury would have had to give this treatment to 
mitigating circumstances but not aggravating 
circumstances, despite the fact that aggravating and 
mitigating circumstances are treated identically on 
the form.

(d) The state court noted that Pages Two and 
Three, containing the lists of aggravating and 
mitigating circumstances, include no printed



33

instructions, Abu-Jamal-2, 720 A.2d at 119, but 
unreasonably failed to recognize that this
contributes to the Mills error. Without instructions 
accompanying the lists of aggravating and 
mitigating circumstances, the jury had to look to 
other parts of the verdict form, the overall structure 
of the form, and the judge’s instructions to 
understand how to use those lists. As set forth 
herein, those factors indicated that aggravating and 
mitigating factors must be unanimously found.

(e) The state court unreasonably concluded that 
Page Three’s signatures-of-all-jurors requirement 
was irrelevant “since those signature lines naturally 
appear at the conclusion of the form and have no 
explicit correlation to the checklist of mitigating 
circumstances.” Abu-Jamal-2, 720 A.2d at 119. The 
reason it is “natural0” for the twelve signatures to 
“appear at the conclusion of the form” is that it 
signifies the agreement of all twelve jurors to the 
findings recorded on the form. This is especially 
obvious here, where the form opens with a 
requirement that everything noted thereon be the 
findings of the jurj ,̂ not individual jurors.

To the extent the signatures “have no explicit 
correlation to the checklist of mitigating 
circumstances,” exactly the same is true for the 
checklist of aggravating circumstances and the 
sentence. To satisfy Mills, the jurors would have to 
know that signing the form signaled agreement to 
the sentence entered on Page One and agreement to 
the findings of aggravating circumstances entered on 
Page Two, but was meaningless with respect to 
mitigating circumstances on Page Three — the very 
page upon which they were to enter their signatures.



Nothing in the verdict form or instructions conveyed 
that illogical concept.

Even if the state court’s “reasoning” about the 
signatures made any sense in isolation, it 
unreasonably failed to consider the trial judge’s oral 
“explanation of th[e] form”. Abu-Jamal-3, 2001 WL 
1609690, at *125. As stated above, the oral 
instructions on how to use Page Three made an 
“explicit correlation” between the signatures and the 
mitigating circumstances and, thereby, cemented the 
Mills-violation that is apparent on the face of the 
verdict form. The state court unreasonably failed to 
consider the effect of the oral instructions on the 
jury’s understanding of the form.

(f) The state court’s previous approval, in 
Commonwealth u. Murphy, 657 A.2d 927 (Pa. 1995), 
of a “verdict slip [] similar to” Mr. Abu-Jamal’s does 
not make its decision reasonable. Abu-Jamal-2, 720 
A.2d at 119. The entire discussion of the verdict slip 
in Murphy is that “the portion of the verdict slip 
where the jury is to list mitigating circumstances is 
set apart from sections A and B of the verdict slip 
which do require a finding of unanimity.” 657 A.2d 
at 936. There is no description of what the Murphy 
verdict slip actually said.

Petitioners argue that the Circuit’s conclusion 
that the state court unreasonably applied Mills is 
erroneous because the state court correctly applied 
Zettlemoyer, the Circuit’s then-governing Mills 
precedent. See Petition at 20-26. This is false. Abu- 
Jamal is as different from Zettlemoyer as it is from 
Spisak.

34



35

Petitioners incorrectly claim that the Zettlemoyer 
instructions were “virtually identical to those here” 
and, in support, quote one sentence of the oral 
instructions given in Zettlemoyer. Petition at 20-21. 
While this single sentence is similar to one part of the 
Abu-Jamal oral instructions, there are “important 
distinctions” between the two instructions as a 
whole. Abu-Jamal-3, 2001 WL 1609690, at 120; see 
id. at *123.

More significantly, there are vast differences 
between the verdict forms in Zettlemoyer and Abu- 
Jamal. See Abu-Jamal-3, 2001 WL 1609690, at *126 
n.92. Although Petitioners declare that “the most 
cursory” comparison of the forms show they were 
“saying exactly the same thing,” Petition at 23 
(emphasis added), there are substantial differences 
between the verdict forms in Abu-Jamal and 
Zettlemoyer.

In finding the Zettlemoyer verdict form 
constitutional, the Third Circuit stressed two factors 
which materially distinguish it from Abu-Jamal.

First, the Zettlemoyer form said “We the jury 
have found unanimously . . . The aggravating
circumstance i s __,” but there was no such language
for mitigating circumstances. 923 F.2d at 308. “The 
absence of a similar instruction for mitigating 
circumstances indicates that unanimity is not 
required.” Id. In sharp contrast, the Abu-Jamal 
form contains identical language for aggravating 
and mitigating circumstances. App. 131-32. Thus, 
the presence on the Abu-Jamal form of “a similar 
instruction for mitigating circumstances indicates 
that unaninimity” is required.



36

Second, on the Zettlemoyer verdict form, “the jury 
was obliged to specify the aggravating circumstance 
it found,” but “it had no such duty with respect to 
mitigating circumstances, thus suggesting that 
consideration of mitigating circumstances was broad 
and unrestricted.” 923 F.2d at 308. Again, the Abu- 
Jamal form is very different -  it required the jury to 
specify both the aggravating and mitigating 
circumstances it found, with no distinction made 
between the two. Thus, the Abu-Jamal verdict form 
required both aggravating and mitigating 
circumstances be unanimously found.

In short, the Abu-Jamal form suffers from the 
exact Mills-violating features that the Third Circuit 
found absent from the Zettlemoyer form. Moreover, 
the Abu-Jamal form requires a unanimous 
mitigation finding for the additional reasons, see 
supra Section I. B that also were absent from the 
Zettlemoyer form.

The state court’s Mills decision was objectively 
unreasonable.10

10 Petitioners contend that Noland v. French, 134 F.3d 208, 
213-214 (4th Cir.), cert, denied, 525 U.S. 851 (1998), supports 
the state court’s decision because it finds that a general 
unanimity instruction did not cause the jury to believe it had to 
be unanimous in finding mitigation. Petition at 26. Petitioners 
are wrong. In Noland, the instructions included an express 
unanimity requirement for aggravating circumstances (and the 
sentence), but the word “unanimously” was not used on the 
verdict form question regarding mitigating circumstances. 
Thus, Noland does not undermine the Third Circuit’s finding 
here because in Abu-Jamal, no distinction was made between 
findings of aggravating and mitigating circumstances, and the 
verdict form required that both be unanimously found.



37

II. This Court Should Deny Certiorari Because
Petitioners’ Quarrel Is with the Third
Circuit’s Application of Properly Stated
Rules of Law to the Facts of this Case.
Certiorari “is rarely granted when the asserted 

error consists of . . . the misapplication of a properly 
stated rule of law.” Supreme Court Rule 10. Here, 
the Third Circuit applied “properly stated rule[s] of 
law” to the facts of this case for both the 
constitutional merits of the Mills claim and the 
deference due state court decisions under AEDPA.

It is undisputed that the applicable rule of federal 
constitutional law is derived from Mills v. Maryland, 
“in light of Smith v. Spisak.” Abu-Jamal-5, 130 S. 
Ct. at 1134. The Third Circuit expressly recognized 
that Mills and Spisak set forth the applicable 
constitutional rule; applied Mills and Spisak to the 
facts of Mr. Abu-Jamal’s case; and applied no other 
substantive law or lower court interpretations of 
Mills or Spisak. See supra Section I. A.

It is also undisputed that the applicable rule of 
deference under AEDPA is 28 U.S.C. § 2254(d)(1), as 
interpreted by this Court. The Third Circuit 
expressly recognized that § 2254(d)(1) sets forth the 
applicable rule of deference; acknowledged this 
Court’s interpretations of § 2254(d)(1) in cases such 
as Williams, 529 U.S. 362 and Landrigan, 550 U.S. 
465; and applied these deferential standards to this 
case. See supra Section I. A.

Because the Circuit clearly identified and applied 
the correct rules of constitutional law and § 2254(d) 
deference, Petitioners’ request for certiorari review 
should be denied.



38

III. This Court Should Deny Certiorari
Because the Circuit Court’s Grant of Mills
Relief is Unlikely to Affect Future Cases.
This Court grants certiorari in order to review 

“question[s] of national importance.” Grutter v. 
Bollinger, 539 U.S. 306, 322 (2003). This is not such 
a case because the error is unlikely to affect future 
cases.

For several reasons, very few Pennsylvania 
capital cases are eligible for Mills relief under 
Respondent’s circumstances:

First, over 22 years ago -  in February 1989 -  
Pennsylvania’s courts stopped using the verdict 
forms and jury instructions now at issue. And, in 
response to Mills, the Pennsylvania Supreme Court 
promulgated a new standard verdict form and jury 
instructions that are MiZZs-compliant. See Abu- 
Jamal-6, 643 F.3d at 382-83.

Second, the applicability of Mills is limited by the 
anti-retroactivity rule of Teague v. Lane, 489 U.S. 
288 (1989). Because Mills announced a “new rule,” 
it is only available to habeas petitioners whose 
convictions became final after this Court decided 
Mills on June 6, 1988. Beard v. Banks, 542 U.S. 406 
(2004).

Thus, in order for another prisoner to benefit 
from the Circuit’s decision, the case cannot be “too 
new” — it had to be tried before Mills, or at least 
before the official change in the verdict form on 
February 1, 1989. This eliminates every case tried 
in the last 22 years. At the same time, the case 
cannot be “too old” -  it had to be final after Mills. 
This also eliminates a significant body of cases.



39

Third, to benefit from the Circuit’s decision a 
Mills claim must survive all other habeas-related 
barriers, such as the exhaustion requirement and 
procedural default rules. Very few cases could 
survive this filtering and properly present the issues 
on which Petitioners seek review. Few if any are 
likely to present themselves to the Third Circuit in 
the future.

Finally, the limited relevance of Mills error in 
Pennsylvania is reflected by the decisions of the 
Third Circuit. Apart from Respondent’s case, the 
Third Circuit has addressed Mills claims in only 
eight other Pennsylvania capital cases: Zettlemoyer, 
923 F.2d at 306-08; Frey, 132 F.3d at 920-25; 
Szuchon v. Lehman, 273 F.3d 299, 320-24 (3d Cir. 
2001); Hackett, 381 F.3d 281 (3d Cir. 2004); Albrecht 
v. Horn, 485 F.3d 103, 116-20 (3d Cir. 2007); Fahy u. 
Horn, 516 F.3d 169, 175-76 (3d Cir. 2008); Banks v. 
Horn, No. 99-9005 (3d Cir. Aug. 25, 2004); and 
Kindlier v. Horn, 542 F.3d 70, 80-83 (3d Cir. 2008), 
vacated and remanded on other grounds, 130 S. Ct. 
612 (2009).

In six of these cases — Zettlemoyer, Szuchon, 
Hackett, Albrecht, Fahy, and Banks -  the Third 
Circuit denied relief on the Mills claim. In three of 
these cases -  Banks, Albrecht, and Fahy -  the 
Circuit found that the Mills claim was barred by 
Teague. In one — Szuchon — the Circuit held that the 
Mills claim was procedurally defaulted. In two, the 
Circuit denied the Mills claim on the merits — under 
pre-AEDPA de novo review in Zettlemoyer and under 
AEDPA's § 2254(d) in Hackett.



40

In just two of the eight cases, Frey and Kindler, 
did the Third Circuit grant relief under Mills. In 
both cases, habeas review was de novo, not under 
AEDPA’s § 2254(d). In Frey, the claim would have 
been denied under Teague had Petitioners not 
waived their Teague defense. 132 F.3d at 920 n.4.

Thus, the Third Circuit’s Mills decisions 
highlight the limited availability of Mills relief in 
Pennsylvania due to the above-described 
combination of non-retroactivity under Teague, post- 
Mills changes to Pennsylvania’s verdict forms and 
jury instructions, and other procedural issues. The 
rulings also show that even when the rare Mills 
claim survives those obstacles, the Third Circuit 
takes a nuanced approach that has led to habeas 
relief in some cases and denial of relief in others. 
Mr. Abu-Jamal’s meritorious Mills claim is, 
therefore, a rarity even in Pennsylvania, and Mills 
claims will scarcely ever be presented in future 
cases. Accordingly, this Court should not waste its 
rarely granted certiorari jurisdiction on this case.



CONCLUSION

41

For the reasons stated herein, certiorari 
should be denied.

Respectfully submitted,

John Payton 
Director-Counsel

Debo P. Adegbile 
^Christina A. Swarns 
Johanna B. Steinberg 
Jin Hee Lee
Vincent M. Southerland 
NAACP Legal Defense 
and Educational Fund, Inc. 

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965.2200 
cswarns@naacpldf.org

Judith L. Ritter 
W idener University 

School of Law 
P.O. Box 7474 
4601 Concord Pike 
Wilmington, DE 19801 
(302)477-2121

September 9, 2011 * Counsel of Record

mailto:cswarns@naacpldf.org


ADDENDUM



la

In the Court of Common Pleas of Philadelphia 
Criminal Trial Division

(EXCERPTS)

January Term, 1982

Nos.
Commonwealth 1357 Poss Instru of Crime

Gen
vs. Poss Instru of Crime 

Concealed Weapon
Mumia Abu-Jamal

1358 Murder
aka Voluntary Manslaughter

Wesley Cook 1359 Involuntary
Manslaughter

July 3, 1982

Courtroom 253, City Hall 

Jury trial

Before: Honorable Albert F. Sabo, Judge



2a

Page 2.

THE COURT: Ladies and gentlemen of the jury, you 
have found the defendant guilty of murder in the 
first degree, and your verdict has been recorded.

We are now going to hold a sentencing hearing 
during which counsel may present additional 
evidence and arguments and you will decide whether 
the defendant is to be sentenced to death or life 
imprisonment.

Whether you sentence the defendant to death or to 
life imprisonment will depend upon what, if any, 
aggravating or mitigating

Page 3.

circumstances you find are present in this case.

Loosely speaking, aggravating and mitigating 
circumstances are circumstances concerning the 
killing and the killer which make a first degree 
murder case either more serious or less serious. The 
crimes code defines more precisely what constitutes 
aggravating and mitigating circumstances. Although 
I will give you detailed instructions later in this 
hearing, I will tell you now that aggravating 
circumstances must be proved by the 
Commonwealth beyond a reasonable doubt, while 
mitigating circumstances must be proved by the 
defendant by a preponderance of the evidence.

Mr. McGill, are you ready to proceed?



3a

MR. MCGILL: Yes, your honor, if it please the court. 
Your honor, the Commonwealth’s witness will be 
Miss Pat Beato.

PATRICIA BEATO, (SWORN)