Wetzel v. Abu-Jamal Petition for Certiorari

    No.

IN THE
SUPREME COURT OF THE UNITED STATES

JOHN WETZEL, et al.
Petitioners

MUMIA ABU-JAMAL,
Respondent

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

PETITION FOR WRIT OF CERTIORARI

HUGH J. BURNS, Jr.
Chief, Appeals Unit 
RONALD EISENBERG 
Deputy District Attorney 
(counsel of record)

Philadelphia District EDWARD F. McCANN, JR.
Attorney’s Office Acting First Assistant
3 South Penn Square District Attorney
Philadelphia PA 19107 R. SETH WILLIAMS 
(215) 686-5700 District Attorney
ronald.eisenberg@phila.gov

mailto:ronald.eisenberg@phila.gov


1

Capital case: Question presented

This Court issued a GVR to the Third Circuit to 
consider Smith v. Spisak, which had not been 
decided when that court ruled for respondent under 
Mills v. Marlyand. The circuit court nevertheless 
reinstated its original decision.

The issue is whether the circuit court on remand 
misapplied Spisak and applied not a deferential, 
but a deprecatory, standard of review.



List of parties

Petitioners

John Wetzel, Secretary, Pennsylvania Department 
of Corrections

Jeffrey A. Martin, Acting Superintendent of the 
State Correctional Facility at Greene, Pennsylvania

It. Seth Williams, District Attorney of Philadelphia, 
Pennsylvania

Linda L. Kelly, Attorney General of the 
Commonwealth of Pennsylvania,

Respondent

Mumia Abu-Jamal



Ill

Table of contents

Question presented i

List of parties ii

Table of contents iii

Table of authorities v

Orders and opinions below viii

Jurisdiction ix

Constitutional and statutory provisions involved ix

Statement o f  the case 1

State collateral review 6

Federal habeas review 7

Reasons for granting the writ:

1. The circuit court on remand
misapplied Spisak. 8

2. The circuit court’s review
remained unaffected by § 2254. 12



IV

3. The circuit court’s analysis was 
not deferential but deprecatory. 19

4, Summary reversal is warranted. 29

Conclusion 30



V

Table of authorities

FEDERAL CASES

Abu-Jamal v. Horn, 520 F.3d 272
(3d Cir. 2008) 7, 18, 20, 25

Arnold v. Evatt, 113 F.3d 1352 (4th Cir. 1997), 
cert, denied, 522 U.S. 1058 (1998) 27

Banks v. Horn, 271 F.3d 527 (3d Cir. 2001), 
reversed on other grounds sub nom. Beard v.
Banks, 542 U.S. 406 (2004) 18

Blystone v. Pennsylvania, 494 U.S. 299 (1990) 15

Boyde v. California, 494 U.S. 370 (1990) 13, 19

Brown v. Payton, 544 U.S. 133 (2005) 13

Cullen v. Pinholster, 131 S. Ct. 1388 (2011) 14, 29

Duvall v. Reynolds, 139 F.3d 768 (10th Cir.), 
cert, denied, 525 U.S.933 (1998) 27

Felkner v. Jackson, 131 S. Ct. 1305 (2011) 12

Frey v. Fulcomer, 132 F.3d 916 (3d Cir.1997), 
cert, denied, 524 U.S. 911 (1998) 18, 28

Griffin v. Delo, 33 F.3d 895 (8th Cir. 1994),
cert, denied, 514 U.S. 1119 (1995) 27



V I

Harrington v. Richter, 131 S. Ct. 770 (2011) passim

Henley v. Bell, 487 F.3d 379 (6th Cir. 2007) 26

Hudson v. Spisak, 552 U.S. 945 (2007) 17

Kansas v. Marsh, 548 U.S. 163 (2006) 9

Kindler v. Horn, 542 F.3d 70 (3d Cir. 2008), 
vacated on other grounds sub nom. Beard v.
Kindler, 130 S. Ct. 612 (2009) 18

LaFevers v. Gibson, 182 F.3d 705
(10th Cir. 1999) 27

Lawson v. Dixon, 3 F.3d 743 (4th Cir. 1993), 
cert, denied, 471 U.S. 1120 (1994) 27

McKoy v. North Carolina, 494 U.S. 433 (1990) 8

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

Mumia Abu-Jamal v. Sec'y, Pa. Department of
Correction, 2008 U.S. App.LEXIS 28098
(3d Cir. Mar. 27, 2008) passim

Noland v. French, 134 F.3d 208 (4th Cir.),
cert, denied, 525 U.S. 851 (1998) 26

Parker v. Norris, 64 F.3d 1178 (8th Cir. 1995), 
cert, denied, 516 U.S. 1095 (1996) 27



Renico v. Lett, 130 S. Ct. 1855 (2010) 19

Scott v. Mitchell, 209 F.3d 854 (6th Cir.),
cert, denied, 531 U.S, 1021 (2000) 27

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

Spisak v. Mitchell, 465 F.3d 684 (6th Cir. 2006) 17

Strickland v. Washington, 466 U.S. 668 (1984) 13

Walton v. Arizona, 497 U.S. 639 (1990) 8

Williams v. Taylor, 529 U.S. 362 (2000) 14

Zettlemoyer u. Fulcomer, 923 F.2d 284 (3d Cir.), 
cert, denied, 502 U.S. 902 (1991) passim

STATE CASES

Commonwealth v. Abu-Jamal, 720 A.2d 79
(Pa. 1998) 6, 22

Commonwealth v. Abu-Jamal, 30 Phila. 1 (1995) 21

FEDERAL STATUTES

28 U.S.C. § 1254(1) ix

vii

28 U.S.C. § 2254(d) ix, 1, 13, 19, 30



vm

Orders and Opinions below

The April 26, 2011 judgment and opinion of the 
United States Court of Appeals for the Third Circuit, 
affirming the order of the district court following 
remand from this Court for reconsideration, is 
reported at Abu-Jamal v. Secretary, Pennsylvania
Department of Corrections, et. al.,__F.3d__ (3d Cir.
2011), and is reprinted in the Appendix atApp. 1-38. 
The former March 27, 2008 judgment and opinion of 
the Third Circuit, also affirming the order of the 
district court, is reported at Abu-Jamal v. Horn, 520 
F.3d 272 (3d Cir. 2008), and is excerpted in the 
Appendix in relevant part atApp. 43-70. The July 22, 
2008 order of the Third Circuit denying respondent’s 
petition for rehearing and rehearing en banc is 
reprinted in the Appendix at App. 41-42. The 
December 18, 2001 order of the district court 
conditionally granting the petition for writ of habeas 
corpus is excerpted in relevant part in the Appendix 
at App. 71-115. The October 29, 1998 decision of the 
Supreme Court of Pennsylvania is reprinted in 
relevant part in the Appendix at App. 116-119. The 
Philadelphia Court of Common Pleas PCRA decision 
of September 15,1995 is excerpted in relevant part in 
the Appendix at App. 120-122. The July 2, 1982 
sentencing jury instructions and sentencing verdict 
form are reprinted in relevant part in the Appendix 
atApp. 123-135. Pages 21 through 24 of the brief for 
respondent in Smith v. Spisak, No. 08-724, are 
reprinted in the Appendix at App. 136-141.



IX

Jurisdiction

This is a federal habeas corpus proceeding. 
Petitioner seeks review of the order of the United 
States Court of Appeals of the Third Circuit dated 
April 26, 2011, affirming the order of the district 
court granting the writ as to sentencing. This Court 
has jurisdiction to review the judgment of the Court 
of Appeals pursuant to 28 U.S.C. § 1254(1).

Constitutional and statutory provisions 
involved

The Eighth Amendment to the United States 
Constitution provides:

Excessive bail shall not be required, 
nor excessive fines imposed, nor cruel 
and unusual punishments inflicted.

28 U.S.C. § 2254(d) provides, in relevant part:

(d) An application for a writ of habeas 
corpus on behalf of a person in custody 
pursuant to the judgment of a State 
court shall not be granted with respect 
to any claim that was adjudicated on 
the merits in State court proceedings 
unless the adjudication of the claim -



X

(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; ...

42 Pa.C.S. § 9711 states, in pertinent part:

(c) INSTRUCTIONS TO JURY.~

(1) Before the jury retires to consider the 
sentencing verdict, the court shall instruct the jury 
on the following matters: [...]

(iv) the verdict must be a sentence of death if the 
jury unanimously finds at least one aggravating 
circumstance specified in subsection (d) and no 
mitigating circumstance or if the jury unanimously 
finds one or more aggravating circumstances which 
out-weigh any mitigating circumstances. The 
verdict must be a sentence of life imprisonment 
in all other cases.



1

Statement of the case

Nearly three decades ago Philadelphia Police 
Officer Daniel Faulkner was murdered by Mumia 
Abu-Jamal. After the Third Circuit upheld the grant 
of a new sentencing hearing under Mills v. Maryland, 
this Court granted the Commonwealth’s petition for 
certiorari, vacated the circuit court’s judgment, and 
remanded for reconsideration under Smith v. Spisak. 
In its original ruling the circuit court lacked the 
benefit of the latter decision. But on remand, it found 
no need for a different result.

That was surprising. Spisak established that 
Mills is not violated where jurors — as here — were 
told they must unanimously decide the balancing of 
aggravating and mitigating circumstances, but were 
not so instructed concerning the finding of mitigating 
circumstances. That the state court’s ruling was at 
least reasonable should have been obvious.

But a law requiring deference is nullified if 
federal courts do not apply it. Here, even after the 
GVR, deference was absent in the circuit court, in a 
capital case remanded for the very purpose of 
enforcing § 2254. Further review is warranted.

Shortly before 3:38 a.m. near the corner of 13th 
and Locust Streets in Philadelphia, Officer Daniel 
Faulkner stopped a Volkswagen driven by one 
William Cook. The officer, who was in uniform and



2

drove a marked police car, sent a radio call for the 
assistance of a police van. As he stood behind Cook 
and was apparently about to frisk him, Cook turned 
and punched the officer in the face. Officer Faulkner 
attempted to subdue and handcuff Cook. As he did so, 
Mumia Abu-Jamal, a/k/a Wesley Cook — William 
Cook’s brother — emerged from a parking lot across 
the street. He ran up behind the officer and shot him 
in the back. The officer turned and managed to fire 
one shot that hit Abu-Jamal in the upper chest. 
Officer Faulkner fell to one knee, and then fell to the 
ground and lay face-up. Abu-Jamal stood over him 
and methodically emptied his revolver at the officer's 
face. One bullet struck the officer between the eyes 
and entered his brain (N.T. 6/19/82, 106, 209-216, 
276-277; 6/21/82, 4.79-4.106, 5.179; 6/23/82, 6.97; 
6/25/82, 8.4-8.34, 8.181; 6/28/82, 28.65).

Having been shot in turn by his victim, Abu- 
Jamal sat on the curb and was still there when 
backup officers arrived moments later. He tried to 
pick up his gun and use it against them, but was 
disarmed by one of the officers who kicked the 
weapon out of reach (N.T. 6/19/82, 116-117). The 
police transported Abu-Jamal to Jefferson University 
Hospital, where he twice loudly announced, "I shot
the mother f_ker and I hope the mother f_ker dies”
(N.T. 6/19/82,176-199, 263-264; 6/21/82, 4.109, 4.194- 
4.199; 6/24/82, 27-30, 33-34, 56-61, 67-68, 74, 112- 
116, 123, 126, 133-136). Shortly thereafter, Officer 
Faulkner, who had been brought to the same 
hospital, was pronounced dead.



3

On July 1, 1982, following seventeen days of 
testimony, a jury convicted Abu-Jamal of first degree 
murder and possession of an instrument of crime 
(Nos. 1357-1358, January Term 1982).

In the penalty phase the jury was instructed to 
impose death if either of two scenarios was 
established, and otherwise to impose a life sentence:

[Y]our verdict must be a sentence of 
death if you unanimously find at least 
one aggravating circumstance and no 
mitigating circumstances. 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.

N.T. 7/3/82, 92; App. 126-127.1

The jurors were provided with a form on which 
to record the penalty verdict. It stated, “We, the jury, 1

1 As in all Pennsylvania cases these instructions 
closely followed 42 Pa.C.S. § 971 l(c)(iv): “the verdict must 
be a sentence of death if the jury unanimously finds at least 
one aggravating circumstance specified in subsection (d) 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.”



4

having heretofore determined that the above-named 
defendant is guilty of murder of the first degree, do 
hereby further find t h a t f o l l o w e d  by each of above 
options (aggravating and no mitigating; aggravating 
and “any” mitigating; or life imprisonment). Lines for 
recording aggravating and mitigating circumstances 
were provided. The two subsequent pages listed all 
statutory aggravating and mitigating circumstances. 
Next to each was a space for a check mark, and at the 
end of the form were lines for the signatures of the 
jurors and the date. There were no instructions of 
any kind on the form. With respect to recording the 
aggravating and mitigating circumstances, the court 
told the jurors to “put an ‘X’ mark or check mark” 
next to “whichever ones you find” {Id., 94-95; App. 
129). The completed form (App. 131-135) showed the 
following:

(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____________ .

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

A



5

The mitigating eircumstance(s) is/are

The jurors were not instructed that unanimity 
was required to find a mitigating circumstance, or 
that failure to agree barred consideration of 
mitigating evidence.

The jury returned a verdict of death on July 3, 
1982 and Abu-Jamal filed a direct appeal to the state 
supreme court. During the appeal, on June 6, 1988, 
this Court decided Mills v. Maryland, but no 
corresponding claim was raised on appeal.

The state supreme court affirmed the 
judgments of sentence on March 6, 1989. During the 
pendency of Abu-Jamal’s ensuing petition for 
certiorari,2 3 on January 16, 1991, the Third Circuit

2 The letter “A” on the first line stood for the first 
listed sole aggravating circumstance, murdering a peace 
officer acting in the performance of his duties. On the second 
line “A” stood for the first listed mitigating circumstance, 
that the offender had no significant history of prior criminal 
convictions. On the separate pages on which the aggravating 
and mitigating circumstances were listed, the jurors also 
placed check marks next to the circumstances identified by 
letter on the first page.

3 Abu-Jamal filed a petition for certiorari on May 2, 
1990, which this Court denied on October 1, 1990. He filed a

(continued...)



6

decided Zettlemoyer v. Fulcomer, a Pennsylvania 
capital case. It held that the instructions given there, 
which were substantially the same as those here, did 
not violate Mills.

State collateral review

On June 5, 1995, Abu-Jamal filed a petition for 
collateral review under Pennsylvania's Post 
Conviction Relief Act (PCRA), raising a Mills claim. 
Following evidentiary hearings the state court denied 
the petition on September 15, 1995. In deciding the 
Mills claim it cited and relied on Zettlemoyer. App. 
121.

Abu-Jamal appealed the PCRA ruling to the 
state supreme court. In order to distinguish his case 
from Zettlemoyer, he chose to limit his Mills claim to 
“the penalty phase verdict slip.” The state supreme 
court denied relief on October 29, 1998, concluding 
that the form did not “lead the jurors to believe that 
they must unanimously agree on mitigating evidence 
before such could be considered.” Commonwealth v. 
Abu-Jamal, 720 A.2d 79, 119 (Pa. 1998); App. 118- 
119. 3

3(...continued)
petition for rehearing on October 29, 1990, which was denied 
on November 26, 1990. Six months later, on May 15, 1991, 
he filed a second request for rehearing, which was denied on 
June 10, 1991.



7

Federal habeas review

On October 15, 1999, Abu-Jamal filed a 
petition for a federal writ of habeas corpus. On 
December 18, 2001, nine days after the 20th 
anniversary of his murder of Officer Faulkner, the 
district court granted one of his twenty-nine habeas 
claims and ordered a new penalty hearing, finding 
that the state had unreasonably applied Mills.

The Commonwealth appealed. In affirming, the 
Third Circuit concluded that the state supreme court 
had acted unreasonably in its “failure to address the 
entire sentencing scheme,” and that the instructions 
created a risk of “confusion about a unanimity 
requirement.” Abu-Jamal v. Horn, 520 F.3d 272, 303 
(3d Cir. 2008); App. 66-67.

The Commonwealth sought certiorari. While 
its petition was pending, on January 12, 2010, this 
Court decided Smith v. Spisak. In that case the Sixth 
Circuit had granted habeas relief under Mills 
because, even though the instructions there “did not 
say that the jury must determine the existence of 
each mitigating factor unanimously,” the circuit court 
considered that a likely inference. This Court 
reversed, holding that such instructions did not 
“clearly bring about” the error in Mills. On January 
19, 2010, this Court granted the Commonwealth’s 
certiorari petition in this case, vacated the Third 
Circuit’s judgment on the Mills claim, and remanded 
for further consideration in light of Spisak.



8

On April 26, 2011, the Third Circuit announced 
its instant, precedential decision. It concluded that 
Spisak was distinguishable because there was no 
Mills error in that case. Independently determining 
that there was one in this case, it deemed the 
decision of the Pennsylvania Supreme Court 
unreasonable and reaffirmed the grant of habeas 
relief.

The Commonwealth again seeks certiorari in 
this 1981 murder case.

Reasons for granting the writ

1. The circuit court on remand 
misapplied Spisak.

Smith v. Spisak, 130 S. Ct. 676 (2010), clarified 
this Court’s prior decision in Mills v. Maryland, 486 
U.S. 367 (1988). In Mills jurors were told they must 
unanimously agree in order to find any mitigating 
circumstance, and that failure to agree barred its 
use. A single juror could veto mitigation.4

4 See Walton v. Arizona, 497 U.S. 639, 647-651 (1990) 
(Mills instruction “likely led the jury to believe that any 
particular mitigating circumstance could not be considered 
unless the jurors unanimously agreed”); McKoy v. North 
Carolina, 494 U.S. 433, 440 (1990) (in Mills “1 juror was able 
to prevent the other 11 from giving effect to mitigating 
evidence”).



9

The instructions in Spisak avoided that error. 
They did not “say that the jury must determine the 
existence of each individual mitigating factor 
unanimously.” Instead the references to unanimity 
were “focused only on the overall balancing question.” 
Id. at 683-684.

Likewise here. The jurors in this case were not 
told they must decide mitigation unanimously or that 
failure to agree precluded a mitigating circumstance. 
Instead, on the verdict form the word “unanimously” 
referred to the balancing decision: “we, the jury,
have found unanimously ... one or more aggravating 
circumstances which outweigh any mitigating 
circumstances.” The oral instructions likewise said 
that the verdict must be death “if you unanimously 
find one or more aggravating circumstances which 
outweigh any mitigating circumstances” (N.T. 7/3/82, 
92; App. 126-127).

Spisak virtually described the instructions 
given here. It approved telling jurors that, to 
recommend death, they “had to find, unanimously ... 
that each of the aggravating factors outweighed any 
mitigating circumstances.” 130 S Ct. at 684. Here, as 
in Spisak, unanimity was not required to find 
mitigating circumstances. Unanimity was required 
to decide the balancing question that determined the 
verdict. See Kansas v. Marsh, 548 U.S. 163, 179 
(2006) (“Weighing is not an end; it is merely a means 
to reaching a decision. The decision the jury must 
reach is whether life or death is the appropriate



10

punishment”). The jury was thus required to be 
unanimous only in its ultimate decision.

Spisak is at odds with the circuit court’s 
decision — in which its task, paradoxically enough, 
was to reconcile its reasoning with Spisak.

This Court ruled that, to trigger a death 
sentence, jurors may be told to “find, unanimously ... 
that each of the aggravating factors outweighed any 
mitigating circumstances.” 130 S Ct. at 684. In this 
case the instruction was, “if you unanimously find 
one or more aggravating circumstances which 
outweigh any mitigating circumstances” (N.T. 7/3/82, 
92; App. 127). Yet on remand, the circuit court 
nevertheless concluded that there was a “substantial 
possibility” that jurors would have understood 
“unanimously find one or more aggravating 
circumstances which outweigh any mitigating 
circumstances” to “mean that both aggravating and 
mitigating circumstances must be found 
unanimously.” Mumia Abu-Jamal v. Sec'y, Pa. Dep't 
of Corr., 2008 U.S. App. LEXIS 28098, 16 (3d Cir. 
Mar. 27, 2008); App. 18.

Spisak cannot be reconciled with this analysis. 
It held that “find, unanimously ... that each of the 
aggravating factors outweighed any mitigating 
circumstances” does not impose a requirement that 
mitigating circumstances be found unanimously. It 
contradicts the circuit court’s counterintuitive 
conclusion that “unanimously find one or more



11

aggravating circumstances which outweigh any 
mitigating circumstances” is somehow another way 
of saying “both aggravating and mitigating 
circumstances must be found unanimously.”

While “even a strong case for relief does not 
mean the state court's contrary conclusion was 
unreasonable,” Harrington v. Richter, 131 S. Ct. 770, 
786 (2011), in light of Spisak the case for relief here 
was nonexistent. Jurors here were told to be 
unanimous in the balancing decision, just as in 
Spisak.

The Third Circuit nevertheless decided that 
explicitly requiring a unanimous balancing decision 
implicitly required a unanimous mitigation decision. 
It concluded, in essence, that jurors would have been 
hypnotized by the word “unanimous” because it was 
“repeatedly” used “throughout” the instructions. 2008 
U.S. App. LEXIS 28098, 16; App. 18. But there is no 
reason why jurors here were susceptible to this 
hypnosis while Spisak jurors were not. The 
instructions here certainly used the word 
“unanimous” repeatedly, but did so in calling for a 
unanimous verdict:

Remember again that your verdict must 
be unanimous. It cannot be reached by 
a majority vote or by any percentage. It 
must be the verdict of each and every 
one of you. Remember that your verdict 
must be a sentence of death if you



12

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

N.T.7/3/82, 92; App. 126-127.

Spisak made the same argument, contending 
that jurors would understand a unanimity 
requirement to apply to every subpart of every 
sentencing decision (Spisak, Brief for Respondent, 21- 
24; App. 136-141). That argument failed, as it should. 
Telling jurors that they must be unanimous to decide 
whether aggravating circumstances outweigh 
mitigating circumstances says nothing about how to 
find mitigating circumstances, let alone imply that 
doing so requires unanimity.

2. The circuit court’s review remained 
unaffected by § 2254.

The circuit court was required to be “highly 
deferential” to the state court decision and give it 
“the benefit of the doubt,” Felkner v. Jackson, 131 S. 
Ct. 1305 (2011), (citations and internal quotation 
marks omitted). Moreover, the claim raised here 
required application of a general rule to specific



13

facts.5 When the deference requirement and a 
general rule of decision apply “in tandem,” habeas 
review by a federal court is to be “doubly deferential.” 
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); 
Harrington v. Richter, 131 S. Ct. at 788 (review of 
state court’s application of the general prejudice 
standard must be not only “highly deferential” but 
“doubly so”).

That the court below was even aware of this 
standard could not be demonstrated by its opinion. It 
did recite some appropriate terms, such as the words 
“objectively unreasonable” from Williams v. Taylor, 
529 U.S. 362, 409 (2000), but its discussion of the 
merits proved this was merely symbolic. Its task on 
remand was to “determine what arguments or

5 The general rule for deciding jury instruction 
claims, including those raising Mills, is stated in Boyde v. 
California, 494 U.S. 370, 380 (1990). “[T]he proper inquiry in 
such a case is whether there is a reasonable likelihood that 
the jury has applied the challenged instruction in a "way that 
prevents the consideration of constitutionally relevant 
evidence.” This “reasonable likelihood” standard is an 
iteration of the “reasonable probability” standard for 
evaluating prejudice established in Strickland v.
Washington, 466 U.S. 668, 694 (1984). Boyde, 494 U.S. at 
381 n.4 (explaining that the same prejudice standard applies 
to claims of ineffective assistance of counsel and failure to 
disclose exculpatory evidence). See Brown v. Payton, 544 U.S. 
133, 144 (2005) (“Boyde sets forth a general framework for 
determining whether a challenged instruction precluded 
jurors from considering a defendant's mitigation evidence”).



14

theories supported” the state decision and decide if 
“fairminded jurists could disagree.”Harrington v. 
Richter, 131 S. Ct. at 786. Instead the circuit court 
labored to undermine the state decision by insisting 
that Spisak made no difference.

The circuit court deemed this case “easily 
distinguished” from Spisak because “the identified 
language of unanimity here indisputably addresses 
more than the final balancing” in the sense that the 
word unanimously “directly refers to one or more 
aggravating circumstances.” 2008 U.S. App. LEXIS 
28098, 23; App. 25 (internal quotation marks 
omitted). But this cramped reinterpreting of the 
instruction is simply wrong. In “if you unanimously 
find one or more aggravating circumstances which 
outweigh any mitigating circum stances,” 
“unanimously” modifies “outweigh.” Spisak concluded 
that telling jurors to “find, unanimously ... that each 
of the aggravating factors outweighed any mitigating 
circumstances,” does not address “more than the final 
balancing.” The circuit court’s bald pronouncement 
that the same words here did just the opposite is no 
distinction at all, much less an easy one.

Spisak also made no difference, according to 
the circuit court, because a unanimity-for-everything 
inference nonetheless arose when the verdict form 
addressed the jury as a group, saying “[w]e, the jury.” 
2008 U.S. App. LEXIS 28098, 16, 23; App. 18, 25. 
But so did the form in Spisak -  a fact noted, 
surprisingly, in the Third Circuit’s own opinion. 2008



15

U.S. App. LEXIS 28098, 20; App. 22-23 (quoting the 
Spisak verdict form repeatedly saying “We the jury”). 
Spisak unsuccessfully made the same argument in 
this Court (Spisak, brief for respondent, 21, App. 137, 
contending that unanimity was implicitly required 
because the jury was addressed “in the collective 
you”’). Yet the circuit court never explained why the 
same words, used in the same way, have opposite 
meanings here and in Spisak.

The circuit court also sought to distinguish 
Spisak on the ground that jurors here had “to 
identify each mitigating circumstance it found,” 2008 
U.S. App. LEXIS 28098, 24, App. 26, while those in 
Spisak did not. This is no distinction. Spisak jurors 
did not have to record mitigating circumstances, but 
they still had to decide them. What mattered was 
that they were not required to decide unanimously. 
Here, jurors were told to record the mitigating 
circumstances they decided, but they likewise were 
not required to decide unanimously.6

6 The trial court in Spisak specified two potential 
mitigating circumstances, one of which was an open-ended or 
“catchall” provision. The mitigating circumstances here also 
included a catchall provision. Thus, that the form here listed 
all of the statutory mitigating circumstances was not a 
limiting factor. Jurors in both cases were unrestricted in 
deciding what could amount to mitigation. See Blystone v. 
Pennsylvania, 494 U.S. 299, 305 (1990) (explaining that, due 
to the catchall provision, Pennsylvania law “does not limit 
the types of mitigating evidence which can be considered”).



16

Spisak was also different, the circuit court 
found, in that jurors there decided aggravating 
factors in the guilt phase, but jurors here decided 
mitigating and aggravating circumstances 
“contemporaneously” and were instructed “identically 
as to each” giving them “apparent similitude.” 2008 
U.S. App. LEXIS 28098, 24-25; App. 27-29. But this 
similitude theory makes no sense, because the jurors 
were not told they must be unanimous to decide 
either kind of circumstance. Further, evenifthe word 
“unanimously” is construed to modify “aggravating 
circumstances” rather than “outweigh,” the 
instructions still do not require unanimity to find 
“any mitigating circumstances.” Thus, regardless of 
whether the sentencing factors were in some sense 
treated differently or identically, unanimity was not 
required to find mitigating circumstances.

And while the complaint that jurors here 
decided the factors “contemporaneously” did not 
distinguish Spisak (unanimity was not required 
whether the decisions were sequential or 
simultaneous), it distinguished Mills. The 
instructions there rigidly precluded any mitigating 
circumstance not marked “yes” in step II from being 
considered in later deliberations. 486 U.S. at 379-380 
(“Section III instructed the jury to weigh only those 
mitigating circumstances marked “yes” in Section II. 
Any mitigating circumstance not so marked ... could 
not be considered by any juror”). Here, the process 
denigrated by the circuit court had no such rigid



17

steps, allowing jurors to consider any relevant fact 
before reaching a final verdict.

Likewise, the circuit court stressed that no one 
affirmatively told jurors that unanimity was not 
required to find mitigating circumstances. 2008 U.S. 
App. LEXIS 28098, 17, 26; App. 19, 29. But there 
was no need to correct a nonexistent defect. This 
Court properly rejected this argument when Spisak 
made it (Spisak, brief for respondent, 21, App. 137, 
arguing that jurors were not told that mitigation was 
a “non-unanimous decision,”; 24, App. 140, arguing 
that unanimity requirement was implicit “since there 
was never a contrary instruction”).'

Spisak’s arguments failed in his own case but 
succeeded in this one because the central premise of 7

7 The circuit court’s view that such an “anti-Mills 
instruction” is required inevitably follows from the imagined 
need to rebut an imagined unanimity requirement. But 
there is no such requirement, and the circuit court’s “anti- 
Mills instruction” rule is of its own invention. The Sixth 
Circuit’s reliance on this novel rule was precisely the error 
that led to the first grant of certiorari in Spisak. Hudson v. 
Spisak, 552 U.S. 945 (2007) (G W  granted on Ohio’s claim 
that Sixth Circuit’s requirement of an affirmative instruction 
that jurors are free to disagree about mitigating factors was 
a new rule not clearly established in Supreme Court 
precedent); see Spisak v. Mitchell, 465 F.3d 684, 711 (6th Cir. 
2006) (finding violation of Mills based on “silence on the lack 
of unanimity required to find mitigating circumstances”).
The error is equally clear here.



18

those arguments -  that a reference to unanimity, 
even though grammatically directed to the weighing 
decision, implicitly attaches itself to other decisions 
in the sentencing phase -  is thoroughly entrenched in 
the Third Circuit’s own precedent.8

Rather than “determine what arguments or 
theories supported” the state court decision, 
Harrington v. Richter, 131 S. Ct. at 786, the circuit 
court on remand continued to apply the reasoning of 
its own decisions, deeming it “substantially probable” 
that the jury “applied the unanimity requirement to 
mitigating circumstances,” 2008 U.S. App. LEXIS 
28098, 27; App. 29 (internal quotation marks 
omitted) — even though there was no such 
instruction. That it is habitual for the circuit court to

8 Kmdler v. Horn, 542 F.3d 70, 83 (3d Cir. 2008), 
vacated on other grounds sub nom. Beard v. Kindler, 130 S. 
Ct. 612 (2009) (Mills violated because jurors were not told 
“that the requirement of unanimity did not apply to any 
mitigating circumstance”); Abu-Jamal v. Horn, 520 F.3d 
272, 303 (3d Cir. 2008) (that word “unanimity” appeared “in 
close relation” to instructions on mitigation violated Mills)] 
Banks v. Horn, 271 F.3d 527, 548, 550 (3d Cir. 2001), 
reversed on other grounds sub nom. Beard v. Banks, 542 U.S. 
406 (2004) (asserting that Mills error can arise from 
“proximity” of words, and concluding that unanimity for 
mitigation was required “by implication”); Frey v. Fulcomer, 
132 F.3d 916, 923 (3d Cir. 1997), cert, denied, 524 U.S. 911 
(1998) {Mills violated because words “unanimous” and 
“mitigating” appeared close together, creating a “sound bite” 
leading jurors to believe mitigation must be found 
unanimously).



19

infer such a meaning, however, is not evidence that 
any juror ever did. “Jurors do not sit in solitary 
isolation booths parsing instructions for subtle 
shades of meaning in the same way that lawyers 
might ... commonsense understanding of the 
instructions in the light of all that has taken place at 
the trial [is] likely to prevail over technical 
hairsplitting.” Boyde v. California, 494 U.S. 370, 380- 
381 (1990); see Renico v. Lett, 130 S. Ct. 1855, 1864- 
1865 (2010) (although circuit court’s view of the 
record was “not implausible,” it erred in basing its 
decision on disagreement with the state supreme 
court about “the inferences to be drawn from” 
objective facts).

3. The circuit court’s analysis was not
deferential but deprecatory.

The circuit court’s misapplication of Spisak 
and its failure to afford deference are of serious 
concern. But the circuit court went further. Its 
analysis was remarkable in its unfairness to the state 
court.

The standard defined by § 2254 is not a 
suggestion, but a bar to habeas relief in the absence 
of “extreme malfunctions in the state criminal justice 
system.” The ruling of the state court is to be upheld 
absent “an error well understood and comprehended 
in existing law beyond any possibility for fairminded 
disagreement.” Harrington v. Richter, 131 S. Ct. at 
787.



20

The circuit court inverted this standard. In 
both its original decision and in its latest decision 
following the GVR, the circuit court deemed the state 
decision unreasonable because it “focused exclusively 
on the verdict form and reached its conclusion 
without considering the entire jury charge.” 2008 
U.S. App. LEXIS 28098, 29; App.31-32; Abu-Jamal v. 
Horn, 520 F.3d at 303, App. 66 (state decision 
unreasonable for “failure to address the entire 
sentencing scheme”).

This reasoning inexplicably ignored why the 
state supreme court focused on the verdict form. Abu- 
Jamal had narrowed his state appellate claim for the 
specific purpose of avoiding the Third Circuit’s own 
decision in Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d 
Cir.), cert, denied, 502 U.S. 902 (1991).

In Zettlemoyer the Third Circuit held that the 
instructions in that case did not violate Mills. 923 
F.2d at 308 (“Neither the court nor the verdict sheet 
stated that the jury must unanimously find the 
existence of particular mitigating circumstances ... 
Mills is clearly distinguishable”). As Abu-Jamal 
himself recognized when he filed his brief in the state 
supreme court, the instructions in that case and in 
this were substantially the same — both required 
unanimity in the final weighing decision:



21

Zettlemoyer (923 F.2d at 307):

The verdict, of course, must be 
unanimous. Again, if you find 
unanimously, beyond a reasonable 
doubt, the aggravating circumstance 
that I have mentioned, the only one 
that's applicable, that the victim was a 
prosecution witness to a felony and it 
was committed and he was murdered so 
that he would not testify, that is an 
aggravating circumstance. If you find 
that aggravating circumstance and find 
no mitigating circumstances or if you 
find that the aggravating circumstance 
which I mentioned to you outweighs any 
mitigating circumstance you find, your 
verdict must be the death penalty.

This case (N.T.7/3/82, 92; App. 126-127):

[Y]our verdict must be a sentence of 
death if you unanimously find at least 
one aggravating circumstance and no 
mitigating circumstances. Or, if you 
unanimously find one or more 
aggravating circumstances which 
outweigh any mitigating circumstances.

When it addressed Abu-Jamal’s Mills claim in
1995, the state PCRA court expressly relied on
Zettlemoyer. Commonwealth v. Abu-Jamal, 30Phila.



22

1, 110 (1995); App. 121 (“The constitutionality of 
similar verdict forms, along with the instructions 
given here, has repeatedly been upheld”; citing, inter 
alia, Zettlemoyer).

On appeal to the Supreme Court of 
Pennsylvania, Abu-Jamal -  at the time represented 
by five privately retained lawyers — sought to 
differentiate his Mills claim from that in Zettlemoyer. 
He restricted his Mills claim to the verdict form, and 
in a footnote explained that he was doing so to avoid 
Zettlemoyer. that case and other such cases were 
inapposite, he argued, because they “dealt with 
deficient instructions, not verdict forms” (Abu- 
Jamahs brief on appeal from collateral review to the 
state supreme court, No. 119 Capital Appeal Docket,, 
pp. 114-116 & n.143). Abu-Jamal said nothing in his 
brief about the trial court's instructions and did not 
even quote them.

Abu-Jamal’s effort to distinguish his case from 
Zettlemoyer was understandable. In 1996 that case 
was the sole existing Third Circuit decision 
construing Mills and Pennsylvania capital case 
instructions — instructions indistinguishable from 
those here — and it had declared them valid. The 
state supreme court discussed the issue just as Abu- 
Jamal chose to present it, but found that there was 
nothing about the form that violated Mills. 
Commonwealth v. Abu-Jamal, 720 A.2d 79, 119 (Pa. 
1998); App. 117-119.



23

Remarkably, the Third Circuit determined that 
the state supreme court was unreasonable because it 
“focused exclusively on the verdict form and reached 
its conclusion without considering the entire jury 
charge.” 2008 U.S. App. LEXIS 28098, 29; App.31-32. 
In other words, the state court was “unreasonable” 
for addressing the claim as narrowed by the appellant 
in his effort to avoid the circuit court’s own precedent 
that undermined his Mills claim.

Further, the circuit court explained that the 
state court’s focus on the form was unreasonable 
because of the “parallel structure of the form and 
instructions.” According to the circuit court, “the 
verdict form’s first page” and the oral instructions 
“read similarly,” both stating that a death sentence 
would result “if the jury unanimously finds one or 
more aggravating circumstances which outweigh any 
mitigating circumstances.” 2008 U.S. App. LEXIS 
28098, 16-17; App. 18-19. In other words, it was 
“unreasonable” to focus on the form and not the 
instructions notwithstanding that the form and the 
instructions said exactly the same thing.

To make matters all the more inexplicable, 
even the most cursory look at the forms used here 
and in Zettlemoyer shows that the forms and the 
instructions in both cases were saying exactly the 
same thing:



24

Zettlemoyer (923 F.2d at 308, footnotes omitted):

We the jury have found unanimously: 
at least one aggravating circumstance 
and no mitigating circumstance. The 
aggravating circumstance is

[X] the aggravating circumstance 
o u t w e i g h s  [the]  m i t i g a t i n g  
circumstances. The aggravating 
circumstance is [the murdering of a 
prosecution witness to prevent 
testimony in a felony case.]

This case (App. 131-132):

We, the jury, have found unanimously

___ at least one aggravating
circumstance and no mitigating 
circumstance. The aggravating 
circumstance(s) is/are____________ .

X one or more aggravating 
circumstances which outweigh any 
mitigating circumstances.[...]

In the end, the circuit court’s baffling analysis 
is nothing more than a reiteration of its view that, 
contrary to its own ruling in Zettlemoyer, requiring 
unanimity in the weighing decision implicitly violates 
Mills.



25

The Third Circuit’s refusal to even discuss 
Zettlemoyer is also striking because that case 
uniquely demonstrates the reasonableness of the 
state court’s decision. It is a simple syllogism; the 
Third Circuit found in Zettlemoyer that instructions 
like those here did not violate Mills. Third Circuit 
judges are reasonable. Reasonable judges can find 
that the instructions here did not violate Mills.

The Third Circuit has chosen not to engage 
this argument. In its decision prior to the GVR, it at 
least acknowledged that Zettlemoyer was “in tension 
with” its later decisions. Abu-Jamal, 520 F.3d at 304; 
App. 69. But that remark failed to recognize or 
resolve the fact that such tension, in and of itself, 
shows that reasonable jurists can disagree. And the 
circuit court’s instant decision on remand makes no 
mention of Zettlemoyer at all. The issue, however, 
remains: whether “the state court’s ruling ... was so 
lacking in justification that there was an error well 
understood and comprehended in existing law beyond 
any possibility for fairminded disagreement.” 
Harrington v. Richter, 131 S. Ct. at 787.

If the circuit court’s own decision in 
Zettlemoyer does not establish the “possibility of 
fairminded disagreement,” nothing ever could. The 
circuit court’s analysis went beyond a mere lack of 
deference. It more closely resembles dismissal.



26

The circuit court’s refusal to address 
Zettlemoyer is characteristic of its deprecatory 
treatment of the state court decision in this case. 
Zettlemoyer was no abberation. It remains squarely 
in the mainstream of federal appellate decisions 
applying Mills, while the later decisions of the Third 
Circuit departing from Zettlemoyer are in the 
minority. Not only can reasonable jurists agree with 
the Pennsylvania Supreme Court decision, they 
actually do — frequently.

For example, in Noland v. French, 134 F.3d 
208, 213-214 (4th Cir.), cert, denied, 525 U.S. 851 
(1998) — a case decided nine months before the state 
supreme court ruled in this case — the Fourth Circuit 
rejected a Mills claim where, “[j]ust before releasing 
the jury to begin its dehberations in the penalty 
phase,” the trial court gave “a general unanimity 
instruction,” saying they were to reach “a unanimous 
decision as to each issue.” Reading the entire charge 
in context, the Fourth Circuit disagreed with 
Noland’s argument that this “created a reasonable 
likelihood that the jury believed that it must have 
found any mitigating circumstances unanimously.” 
Doubtless the Third Circuit would have reached a 
different result, but on habeas review that is not the 
issue.9

9 See also, e.g., Henley v. Bell, 487 F.3d 379, 391 (6th 
Cir. 2007) (“the plain language of both the instructions and 
the verdict form require unanimity as to the weighing of

(continued...)



27

In litigating Mills claims on federal habeas

9(...continued)
aggravating and mitigating circumstances -  not the 
existence of a mitigating circumstance”); Scott v. Mitchell,
209 F.3d 854, 874 (6th Cir.), cert, denied, 531 U.S. 1021 
(2000) (no Mills issue where jurors told “all 12 of you must 
sign [the verdict form] ... [i]t must be unanimous”); LaFevers 
v. Gibson, 182 F.3d 705, 719 (10th Cir. 1999) (“[a] trial court 
need not ... expressly instruct a capital sentencing jury that 
unanimity is not required before each juror can consider a 
particular mitigating circumstance”); Duvall v. Reynolds, 139 
F.3d 768, 791 (10th Cir.), cert, denied, 525 U.S.933 (1998) 
(same); Arnold v. Evatt, 113 F.3d 1352, 1363 (4th Cir. 1997), 
cert, denied, 522 U.S. 1058 (1998) (“Arnold now claims a 
"substantial possibility" existed that the jury could have 
thought it must also unanimously agree as to the existence of 
any mitigating circumstances. Unlike in McKoy or Mills, 
however, the jury instructions never required the jury to find 
any mitigating factor unanimously”); Parker v. Norris, 64 
F.3d 1178, 1187 (8th Cir. 1995), cert, denied, 516 U.S. 1095 
(1996) (that verdict form “failed to inform jurors that they 
could consider non-unanimous mitigating circumstances” did 
not violate Mills)] Griffin v. Delo, 33 F.3d 895, 905-906 (8th 
Cir. 1994), cert, denied, 514 U.S. 1119 (1995) (instruction 
that jurors must impose life if they unanimously found that 
any mitigating circumstances outweighed aggravating 
circumstances did not imply that they must be unanimous to 
find mitigating circumstances); Lawson v. Dixon, 3 F.3d 743, 
754 (4th Cir. 1993), cert, denied, 471 U.S. 1120 (1994) (Mills 
not violated where jurors told to “find unanimously” whether 
aggravating circumstances outweigh mitigating ones; “such 
an instruction does not run afoul of Mills/McKoy because it 
does not state that jurors must agree unanimously on the 
existence of a mitigating factor”) (citation and internal 
quotation marks omitted).



28

review in this circuit, the Commonwealth has 
constantly cited the fact that most other circuit 
courts to consider similar claims have ruled 
consistently with the Pennsylvania Supreme Court. 
Yet in none of its Mills decisions has the Third 
Circuit even acknowledged this argument, much less 
discussed it on the merits.

As further proof of the state court’s supposed 
unreasonableness, the circuit court noted that, soon 
after Mills was decided, the state supreme court 
issued a new verdict form stating that unanimity was 
not required in finding mitigating circumstances. The 
circuit court treated this as if it were an admission 
that the standard instructions were unconstitutional 
absent such an “anti-Mills instruction.” It was 
characteristically blind to the possibility that the 
state could reasonably have decided to preclude 
potential Mills claims by altering its verdict form, in 
order to protect its judgments from being erroneously 
overturned by a federal court acting outside the 
proper scope of its authority — exactly as occurred 
here.

The state’s protective change to the form was 
futile. Pennsylvania has been fighting and losing the 
Mills battle since 1997, when the Third Circuit 
departed from Zettlemoyer in Frey v. Fulcomer. The 
judgments in this case and in other similar cases 
have been erroneously overturned by the court below 
notwithstanding the clear limitations on federal 
collateral review imposed by Congress.



29

4. Summary reversal is warranted.

Having already once been fruitlessly remanded 
by this Court for enforcement of the AEDPA 
standard, this case calls for summary reversal.

The Third Circuit originally acted without the 
benefit of Spisak. That was duly considered when 
this Court issued its GVR in January 2010. Since 
then — and before the circuit court issued its instant 
opinion -  this Court has handed down decisions such 
as Harrington v. Richter and Cullen v. Pinholster. 
One would have thought all doubt concerning the 
federal habeas standard of review had been removed. 
But one would be wrong. On remand following the 
GVR, the circuit court misapplied Spisak, and its 
mode of review was anything but deferential.

AEDPA will remain ineffective in the Third 
Circuit until the circuit court enforces it. This Court 
has taken steps to insist that this law be followed in 
other circuits that had failed to comply, such as the 
Ninth and Sixth Circuits. It should do the same here.

This Court could have summarily reversed 
under Spisak, but instead gave the circuit court the 
benefit of the doubt. Pennsylvania should now be 
given the benefit it was due under § 2254. The 
circuit court should be summarily reversed.



30

Conclusion

For the reasons set forth above, the 
Commonwealth respectfully requests this Court to 
grant its petition for writ of certiorari.

Respectfully submitted:

HUGH J. BURNS, Jr. 
Chief, Appeals Unit 
RONALD EISENBERG 
Deputy District Attorney 
(counsel of record) 
EDWARD F. McCANN, JR. 
Acting First Assistant 
District Attorney 
R. SETH WILLIAMS 
District Attorney

Philadelphia District 
Attorney’s Office 
3 South Penn Square 
Philadelphia, PA 19107 
(215) 686-5700 

ronald.eisenberg@phila.gov

mailto:ronald.eisenberg@phila.gov


App. 1

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

No. 01-9014

MUMIA ABU-JAMAL, 
a/k/a WESLEY COOK

v.

^SECRETARY, PENNSYLVANIA DEPARTMENT 
OF CORRECTIONS; CONNER BLAINE, 

SUPERINTENDENT, SCI GREENE; DISTRICT 
ATTORNEY FOR PHILADELPHIA COUNTY; 
THE ATTORNEY GENERAL OF THE STATE 

OF PENNSYLVANIA,
Appellants

^Pursuant to Fed. R. App. P. 43(c)

On Appeal from the United States District Court 
for the Eastern District of Pennsylvania

D.C. Civil Action No. 99-cv-05089 
(Honorable William H. Yohn Jr.)

Argued May 17, 2007

Decided M arch 27, 2008



App. 2

Certiorari Granted, Judgment 
Vacated and Remanded from the 

Supreme Court of the United States 
January 19, 2010

Argued on Remand from the 
Supreme Court of the United States 

November 9, 2010

Before: SCIRICA, AMBRO and COWEN, 
Circuit Judges.

JUDGMENT

This cause came to be heard on the record 
from the United States District Court for the Eas­
tern District of Pennsylvania and was argued by 
counsel on November 9, 2010. On consideration 
whereof, it is now hereby

ORDERED and ADJUDGED by this Court 
that the judgment of the District Court entered 
December 18, 2001, be, and the same is hereby 
affirmed. Costs taxed against appellants. All of 
the above in accordance with the opinion of this 
Court.

ATTEST:

Is/ Marcia M. Waldron
Clerk

DATED: April 26, 2011



App. 3

PRECEDENTIAL

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

No. 01-9014

MUMIA ABU-JAMAL, 
a/k/a WESLEY COOK

v.

* SECRETARY, PENNSYLVANIA DEPARTMENT 
OF CORRECTIONS; CONNER BLAINE, 

SUPERINTENDENT, SCI GREENE; DISTRICT 
ATTORNEY FOR PHILADELPHIA COUNTY; 
THE ATTORNEY GENERAL OF THE STATE 

OF PENNSYLVANIA,
Appellants

*Pursuant to Fed. R. App. P. 43(c)

On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 

D.C. Civil Action No. 99-cv-05089 
(Honorable William H. Yohn Jr.)

Argued M ay 17, 2007



Decided March 27, 2008

Certiorari Granted, Judgment 
Vacated and Remanded from the 

Supreme Court of the United States 
January 19, 2010

Argued on Remand from the 
Supreme Court of the United States 

November 9, 2010

Before: SCIRICA, AMBRO and COWEN, 
Circuit Judges.

(Filed: April 26, 2011)

HUGH J. BURNS, JR., ESQUIRE (ARGUED) 
RONALD EISENBERG, ESQUIRE 
Office of District Attorney 
Three South Penn Square 
Philadelphia, Pennsylvania 19107-3499 

Attorneys for Appellants

JUDITH L. RITTER, ESQUIRE (ARGUED) 
Widener University School of Law 
P.O. Box 7474 
4601 Concord Pike 
Wilmington, Delaware 19803 

Attorney for Appellee

App. 4



App. 5

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Mumia Abu-Jamal was convicted of first- 
degree murder in state court and sentenced to 
death. After exhausting state appeals, he filed a 
petition for a writ of habeas corpus under 28 U.S.C. 
§ 2254. A divided panel of this court affirmed the 
denial of Abu-Jamal's petition insofar as it chal­
lenged his conviction. See Abu-Jamal v. Horn, 520 
F.3d 272 (3d Cir. 2008). Our court denied his peti­
tion for rehearing en banc, and the Supreme Court 
of the United States denied his petition for a writ of 
certiorari seeking review of his conviction, Abu- 
Jamal v. Beard,— U.S. —, 129 S. Ct. 1910 (2009) 
(mem.). Abu-Jamal's conviction for first-degree 
murder stands.

On his death penalty challenge,1 the District 
Court found the Pennsylvania Supreme Court's 
order denying post-conviction relief involved an 
unreasonable application of United States Supreme 
Court precedent. See 28 U.S.C. § 2254(d)(1). We *

'Abu-Jamal claimed the jury was unconstitutionally 
limited in its consideration of mitigating factors to only miti­
gating factors found unanimously by the jury. See Mills v. 
Maryland, 486 U.S. 367 (1988).



App. 6

affirmed the District Court's grant of habeas relief 
on the sentence, see Abu-Jamal, 520 F.3d at 304, 
and our court denied the petition for rehearing en 
banc. The Commonwealth of Pennsylvania then 
petitioned the United States Supreme Court for a 
writ of certiorari, challenging our affirmance of the 
District Court's grant of habeas relief on the sen­
tence.

On January 19, 2010, the United States 
Supreme Court granted the Commonwealth's 
petition for a writ of certiorari, vacated our judg­
ment as to Abu-Jamal's sentence, and remanded 
for further consideration. Beard v. Abu-Jamal, — 
U.S. —, 130 S. Ct. 1134 (2010) (mem.). The 
Supreme Court directed that we reconsider our 
holding in light of intervening authority, Smith v. 
Spisak, 558 U.S. —, 130 S. Ct. 676 (2010).

After further review, we conclude the Penn­
sylvania Supreme Court unreasonably applied 
Mills v. Maryland, 486 U.S. 367 (1988), requiring 
Abu-Jamal's death sentence to be vacated. Our 
decision is required by Mills and consistent with 
Spisak. Accordingly, we will affirm the District 
Court's grant of habeas relief on Abu-Jamal's 
mitigation instruction claim.

I.

In 1982, a Pennsylvania jury convicted Abu- 
Jamal of the murder of Philadelphia Police Officer



App. 7

Daniel Faulkner. See Abu-Jamal, 520 F.3d at 
274-76 (providing a full factual history). The jury 
returned, and the judge imposed, a sentence of 
death.

The Pennsylvania courts denied Abu-Jamal's 
claims on direct appeal and collateral review. Com­
monwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989); 
Commonwealth v. Abu-Jamal, 569 A,2d 915 (Pa. 
1990) (per curiam); Commonwealth v. Abu-Jamal, 
No. 1357, 1995 WL 1315980, at *128 (C.P. Ct.
Phila. Cty. 1995); Commonwealth v. Abu-Jamal,
720 A.2d 79 (Pa. 1998); Commonwealth v. Abu- 
Jamal, 833 A.2d 719 (Pa. 2003). The United States 
Supreme Court denied Abu-Jamal's petition for a 
writ of certiorari on October 1, 1990, Abu-Jamal v. 
Pennsylvania, 498 U.S. 881 (1990) (mem.) (on 
direct review), his petition for rehearing on Novem­
ber 26, 1990, Abu-Jamal v. Pennsylvania, 498 U.S. 
993 (1990) (mem.), a second request for rehearing 
on June 10, 1991, Abu-Jamal v. Pennsylvania, 501 
U.S. 1214 (1991) (mem.), and a second and third 
petition for a writ of certiorari on October 4, 1999, 
Abu-Jamal v. Pennsylvania, 528 U.S. 810 (1999) 
(mem.) (on collateral review), and May 17, 2004, 
Abu-Jamal v. Pennsylvania, 541 U.S. 1048 (2004) 
(mem.) (same), respectively.

Having exhausted state court remedies, 
Abu-Jamal filed a petition for a writ of habeas 
corpus under 28 U.S.C. § 2254 in the United States 
District Court for the Eastern District of



App. 8

Pennsylvania. He challenged the validity of his 
criminal conviction, his capital sentence, and the 
sufficiency of post-conviction review. He argued, 
among other things, that the sentencing phase of 
his trial violated the United States Constitution 
because the jury instructions and verdict sheet 
required jury unanimity in its findings with respect 
to the existence of mitigating circumstances. The 
District Court denied the petition as to the convic­
tion and post-conviction proceedings but accepted 
Abu-Jamal’s mitigation instruction claim. See Abu- 
Jamal v. Horn, No. Civ. A. 99-5089, 2001 WL 
1609690, at *1 (E.D. Pa. Dec. 18, 2001). The court 
concluded the Pennsylvania Supreme Court unrea­
sonably applied United States Supreme Court 
precedent in finding otherwise and affirming the 
Court of Common Pleas of Philadelphia County's 
denial of post-conviction relief. See id. at *126. 
Consequently, the District Court granted a writ of 
habeas corpus on this claim and ordered the Com­
monwealth to conduct a new sentencing hearing or 
sentence Abu-Jamal to life imprisonment. Id. at 
*130. The Commonwealth appealed the order of 
the District Court granting the writ as to the sen­
tencing and Abu-Jamal cross-appealed the denial of 
the writ with respect to the conviction. As noted, 
we affirmed the judgment of the District Court in 
its entirety. Abu-Jamal, 520 F.3d at 274.2

2As noted, a divided panel affirmed the denial of
(continued...)



App. 9

Abu-Jamal subsequently filed a petition for panel 
rehearing and rehearing en banc, which was 
denied.

Thereafter, the parties filed cross-petitions 
for writs of certiorari in the Supreme Court of the 
United States. The Supreme Court denied Abu- 
Jamal's petition seeking review of his conviction, 
see Abu-Jamal v. Beard, — U.S. —, 129 S. Ct. 1910
(2009) (mem.), but granted the Commonwealth's 
petition, vacated the portion of our judgment 
regarding Abu-Jamal's sentence, and remanded for 
further consideration in light of new authority, see 
Beard v. Abu-Jamal, — U.S. —, 130 S.Ct. 1134
(2010) (mem.).

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 instruc­
tions and verdict form employed in the sentencing 
phase of Abu-Jamal's trial. See 28 U.S.C. § 2254 
(d)(1); Williams u. Taylor, 529 U.S. 362, 405-06 
(2000). Pursuant to the Supreme Court's order, 
we consider this question in light of Spisak and 2

2 (...continued)
habeas relief on the conviction; the entire panel affirmed the 
grant of habeas relief on the sentence. See Abu-Jamal, 520 
F.3d at 305 (Ambro, J., concurring in part, dissenting in 
part).



App. 10

will examine whether the verdict form and jury 
instructions in the present case are distinguishable 
from those at issue in Spisak such that, taken 
together, they clearly brought about a "substantial 
probability" the jury believed it was precluded from 
considering any mitigating circumstance not found 
unanimously. Mills, 486 U.S. at 384.

II.

Under the standard for habeas relief estab­
lished by the Antiterrorism and Effective Death 
Penalty Act of 1996 (AEDPA), 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 appli­
cation of, clearly established Federal law, as deter­
mined 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 hght of 
the evidence presented in the State court proceed­
ing." 28 U.S.C. § 2254(d)(l)-(2).

Under the first clause of § 2254(d)(1), "a 
state-court decision is contrary to [Supreme Court] 
precedent if the state court arrives at a conclusion 
opposite to that reached by th[e] Court on a ques­
tion of law," or "if the state court confronts facts 
that are materially indistinguishable from a rele­
vant Supreme Court precedent and arrives at a 
result opposite to [the Court's]." Williams, 529 U.S.



App. 11

at 405. Here, the Pennsylvania Supreme Court 
correctly identified Mills as the applicable Supreme 
Court precedent, and the facts at issue are not 
"materially indistinguishable" from those in Mills. 
The Pennsylvania Supreme Court's decision was 
consequently not "contrary to" Mills. See Williams, 
529 U.S. at 405.

Accordingly, we consider only the second 
clause of § 2254(d)(1), and must determine whether 
the Pennsylvania Supreme Court's decision to deny 
Abu-Jamal's mitigation instruction claim "involved 
an unreasonable application of [ ] clearly estab­
lished Federal law, as determined by the Supreme 
Court of the United States," 28 U.S.C. § 2254(d)(1), 
in Mills. "Under § 2254(d)(l)'s 'unreasonable appli­
cation' clause . . .  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 
application must also be unreasonable." Williams, 
529 U.S. at 411; see Schriro v. Landrigan, 550 U.S. 
465, 473 (2007) ("The question under AEDPA is not 
whether a federal court believes the state court's 
determination was incorrect but whether that 
determination was unreasonable—a substantially 
higher threshold."). The Supreme Court has 
instructed that, in making this inquiry, we "should 
ask whether the state court's application of clearly 
established federal law was objectively unreason­
able." Williams, 529 U.S. at 409.



App. 12

In Spisak, the Supreme Court found no 
violation of Mills and consequently concluded the 
state court decision at issue, reaching the same 
conclusion, was not '"contrary to, or . . .  an unrea­
sonable application of, clearly established Federal 
law, as determined by the Supreme Court of the 
United States' in Mills.” 130 S. Ct. at 684 (quoting 
28 U.S.C. § 2254(d)(1)) (alteration in original). 
Accordingly, consistent with the Supreme Court's 
order to reconsider in light of Spisak, we first eval­
uate whether a Mills violation has occurred, and 
then proceed to examine whether the Pennsylvania 
Supreme Court's application of Mills was objec­
tively unreasonable under the second clause of 
§ 2254(d)(1).

III.

In Mills, the Supreme Court vacated a death 
sentence after finding there was "a substantial 
probability that reasonable jurors, upon receiving 
the judge's instructions in this case, and in 
attempting to complete the verdict form as 
instructed, well may have thought they were pre­
cluded from considering any mitigating evidence 
unless all 12 jurors agreed on the existence of a 
particular such circumstance.”3 486 U.S. at 384.

3Spisak used the word "possibility" instead of "prob­
ability" when quoting directly from Mills. See 130 S. Ct. at 
684 (quoting Mills, 486 U.S. at 384). We take this to have

(continued...)



App. 13

The Court held the Constitution proscribes imposi­
tion of the death penalty if members of the jury 
could reasonably believe they are precluded from 
considering mitigating evidence unless the jury 
unanimously agrees the mitigating circumstance 
has been proven to exist. Id. at 380, 384; see also 
McKoy v. North Carolina, 494 U.S. 433, 442-43 
(1990) (l'Mills requires that each juror be permitted 
to consider and give effect to mitigating evidence 
when deciding the ultimate question whether to 
vote for a sentence of death.").4

8(...continued)
been inadvertent, and in any event Mills used both formu­
lations. See 486 U.S. at 377, 384. We do not understand 
Spisak to have changed the legal standard for evaluating 
this kind of question.

4In. Boyde v. California, 494 U.S. 370 (1990), the 
Supreme Court held "[t]he legal standard for reviewing jury 
instructions claimed to restrict impermissibly a jury's consid­
eration of relevant evidence," id. at 378, is "whether there is 
a reasonable likelihood that the jury has applied the chal­
lenged instruction in a way that prevents the consideration 
of constitutionally relevant evidence," id. at 380. Because 
Spisak relied exclusively on Mills' "substantial probability" 
standard, and because we think a "substantial probability" is 
neither more nor less than a "reasonable likelihood," see 
Hackett v. Price, 381 F.3d 281, 300 & n.13 (3d Cir. 2004), we 
will consider whether there is a "substantial probability" the 
jury believed it was precluded from finding a mitigating 
circumstance that had not been unanimously agreed upon.



App. 14

The verdict form at issue in Mills included a 
list of potentially mitigating circumstances, and 
spaces for the jury to check "yes" or "no" after each 
circumstance. Preceding the list, the form read 
'"[hjased upon the evidence we 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 . . . Mills, 486 U.S. at 387 
(Appendix to the Opinion of the Court). Next, the 
form read "'[bjased on the evidence we unani­
mously find that it has been proven . . . that the 
mitigating circumstances marked 'yes' . . . outweigh 
the aggravating circumstances,"' and provided 
spaces where the jury could mark either "yes" or 
"no." Id. at 388-89. Thus, the "instructions, 
together with the forms, told the jury to mark 'yes' 
on [the] list of mitigating factors only if the jury 
unanimously concluded that the particular mitigat­
ing factor had been proved, and to consider in its 
weighing analysis . . . only those mitigating factors 
marked 'yes.'" Spisak, 130 S. Ct. at 683. Accord­
ingly, the Court found the jury was "not free . . .  to 
consider all relevant evidence in mitigation as they 
balanced aggravating and mitigating circum­
stances,” but only mitigating evidence found unani­
mously to exist.5 Mills, 486 U.S. at 380. The Mills 
Court conceded that a constitutional "construction

“The jury in Mills did not mark "yes” next to any 
mitigating circumstance, 486 U.S. at 387-88, and did not 
actually reach the balancing stage, id. at 380 n.13.



App. 15

of the jury instructions and verdict form is plaus­
ible," id. at 377, but remanded for resentencing 
because there was "at least a substantial risk that 
the jury was misinformed," id. at 381, and had 
reasonably interpreted the jury instructions and 
verdict form to preclude consideration of mitigating 
circumstances not found unanimously, see id. at 
384 ("Under our cases, the sentencer must be per­
mitted to consider all mitigating evidence. The 
possibility that a single juror could block such 
consideration, and consequently require the jury to 
impose the death penalty, is one we dare not 
risk.").

We conclude the verdict form and jury 
instructions in this case likewise created a substan­
tial probability the jury believed it was precluded 
from finding a mitigating circumstance that had 
not been unanimously agreed upon. In relevant 
part, the first page of the verdict form used in Abu- 
Jamal's trial stated: 1

(1) We, the jury, unanimously sen­
tence the defendant to
[X] death
[ ] life imprisonment.

(2) (To be used only if the aforesaid 
sentence is death)
We, the jury, have found unani­
mously
[ ] at least one aggravating cir­
cumstance and no mitigating



App, 16

circumstance. The aggravating 
circumstance (s) is/are

[X] one or more aggravating 
circumstances which outweigh 
any mitigating circumstances. 
The aggravating circumstance(s) 
is/are
______________ A_______________
The mitigating circumstance(s) 
is/are
______________ A

The second page listed ten potentially aggravating 
circumstances (a-j). A third page listed eight poten­
tially mitigating circumstances (a-h).6 Each of the 
potential aggravating or mitigating circumstance 
listed had a space next to it for the jury to place a 
checkmark if it found the aggravating or mitigating 
circumstance to exist. On the third and final page, 
there were twelve spaces for each juror to sign his 
or her name, and each did. The instructions given 
to the jury provided, in part:

6The jury placed a checkmark next to mitigating 
circumstance (a) on the third page and then indicated this 
selection on the first page by writing "A." Circumstance (a) 
reads: "The defendant has no significant history of prior 
criminal convictions[.]" Circumstance (h) allowed the jury to 
consider and select "[a]ny other mitigating matter concerning 
the character or record of the defendant or the circumstances 
of his offense."



App. 17

Members of the jury, you must now 
decide whether the defendant is to be 
sentenced to death or life imprison­
ment. The sentence will depend upon 
your findings concerning aggravating 
and mitigating circumstances. The 
Crimes Code provides that a verdict 
must be a sentence of death if the jury 
unanimously finds at least one aggra­
vating circumstance and no mitigating 
circumstance, or if the jury unani­
mously finds one or more aggravating 
circumstances which outweigh any 
mitigating circumstances.

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

The [Cjommonwealth has the burden 
of proving aggravating circumstances 
beyond a reasonable doubt. The defen­
dant has the burden of proving miti­
gating circumstances, but only by a 
preponderance of the evidence. This is 
a lesser burden of proof than beyond a 
reasonable doubt. A preponderance of 
the evidence exists where one side is 
more believable than the other 
side. . . .



App. 18

Now, the verdict is for you, members of 
the jury. Remember and consider all 
of the evidence giving it the weight to 
which it is entitled. Remember that 
you are not merely recommending a 
punishment. The verdict you return 
will actually fix the punishment at 
death or life imprisonment. Remem­
ber again that your verdict must be 
unanimous. It cannot be reached by a 
majority vote or by any percentage. It 
must be the verdict of each and every­
one [sic] of you.

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

It is substantially probable the verdict form's 
first page, especially "[w]e, the jury, have found 
unanimously . . . one or more aggravating circum­
stances which outweigh any mitigating circum­
stances," was read by the jury to mean that both 
aggravating and mitigating circumstances must be 
found unanimously. The jury instructions read



App. 19

similarly, stating: "The Crimes Code provides that 
a verdict must be a sentence of death if the jury 
unanimously finds at least one aggravating circum­
stance and no mitigating circumstance, or if the 
jury unanimously finds one or more aggravating 
circumstances which outweigh any mitigating cir­
cumstances." And the portion of the form where 
the jury was instructed to identify any mitigating 
circumstances found-"The mitigating circum­
stance^) is/are___."-was introduced by the words
"[w]e, the jury, have found unanimously." More­
over, the instructions throughout and repeatedly 
emphasized unanimity. In light of the language 
and parallel structure of the form and instructions 
in relation to aggravating and mitigating circum­
stances, 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 require­
ment to its findings of aggravating but not mitigat­
ing circumstances. This absence is also notable 
because the trial court distinguished between the 
two with respect to the proper burden of proof the 
jury should apply.

We conclude the verdict form together with 
the jury instructions read that unanimity was 
required in the consideration of mitigating circum­
stances and that there is a substantial probability 
the jurors believed they were precluded from inde­
pendent consideration of mitigating circumstances 
in violation of Mills. We now compare the instruc­
tions at issue in Spisak with the verdict form and



App. 20

jury charge here to determine whether our conclu­
sion is consistent with Spisak.

IV.

In Spisak the Supreme Court evaluated a 
Sixth Circuit decision holding a habeas petitioner's 
sentencing instructions unconstitutional. The 
Supreme Court found the forms and instructions 
used in the sentencing phase of Spisak's trial 
"differfed] significantly," Spisak, 130 S. Ct. at 683, 
from those at issue in Mills such that Mills was not 
violated and "consequently . . . the state court [ ] 
decision upholding the [ ] forms and instructions 
was not 'contrary to, or . . .  an unreasonable appli­
cation of, clearly established Federal law, as deter­
mined by the Supreme Court of the United States' 
in Mills,” id. at 684 (alteration in original) (quoting 
28 U.S.C. § 2254(d)(1)). In Spisak's trial, the jury 
found aggravating circumstances prior to, and 
separately from, the sentencing phase of the trial 
when the jury was directed to consider mitigating 
circumstances. At Spisak's sentencing hearing, the 
trial judge instructed the jury that the "aggravat­
ing factors they would consider were the specifi­
cations that the jury had found proved beyond a 
reasonable doubt at the guilt phase of the trial- 
essentially, that each murder was committed in a 
course of conduct including . . . other crimes, and, 
for two of the murders, that the murder was com­
mitted with the intent to evade apprehension or 
punishment for another offense." Id. at 683. The



App. 21

judge then explained what a mitigating factor was, 
listed examples, and informed the jury they should 
consider "any other" mitigating circumstances 
"relevant to the issue of whether the defendant 
should be sentenced to death." Id. (internal quota­
tion marks omitted). The judge then instructed the 
jury on how it should reach its verdict:

[Y]ou, the trial jury, must consider all 
of the relevant evidence raised at trial, 
the evidence and testimony received in 
this hearing and the arguments of 
counsel. From this you must deter­
mine whether, beyond a reasonable 
doubt, the aggravating circumstances, 
which [Spisak] has been found guilty 
of committing in the separate counts 
are sufficient to outweigh the mitigat­
ing factors present in this case.

If all twelve members of the jury find 
by proof beyond a reasonable doubt 
that the aggravating circumstance in 
each separate count outweighs the 
mitigating factors, then you must 
return that finding to the Court.

On the other hand, if after considerin; 
all of the relevant evidence raised at 
trial, the evidence and the testimony



App. 22

received at this hearing and the argu­
ments of counsel, you find that the 
State failed to prove beyond a reason­
able doubt that the aggravating cir­
cumstances which [Spisak] has been 
found guilty of committing in the sep­
arate counts outweigh the mitigating 
factors, you will then proceed to deter­
mine which of two possible life impris­
onment sentences to recommend to the 
Court.

Id. at 683-84 (alteration in original) (internal quo­
tation marks omitted). Two sets of verdict forms 
were made available to the jury. One read:

We the jury in this case . . .  do find 
beyond a reasonable doubt that the 
aggravating circumstance which the 
defendant . . . was found guilty of com­
mitting was sufficient to outweigh the 
mitigating factors present in this case.

We the jury recommend that the sen­
tence of death be imposed . . . .

Spisak Trial Transcript of July 19, 1983, at 2975- 
76, Court of Common Pleas, Cuyahoga County, 
Ohio. The other read:

We the jury . . .  do find that the 
aggravating circumstances which the



App. 23

defendant . . . was found guilty of com­
mitting are not sufficient to outweigh 
the mitigating factors present in this 
case.

We the jury recommend that the 
defendant . . .  be sentenced to life 
imprisonment . . . .

Id. at 2976.

After reviewing the jury instructions and the 
language of the verdict forms, the Supreme Court 
found that:

The instructions and forms made clear 
that, to recommend a death sentence, 
the jury had to find, unanimously and 
beyond a reasonable doubt, that each 
of the aggravating factors outweighed 
any mitigating circumstances. But the 
instructions did not say that the jury 
must determine the existence of each 
individual mitigating factor unani­
mously. Neither the instructions nor 
the forms said anything about how-or 
even whether-the jury should make 
individual determinations that each 
particular mitigating circumstance 
existed. They focused only on the 
overall balancing question. And the 
instructions repeatedly told the jury



A p p .  2 4

to "considejr] all of the relevant evi­
dence,"

Spisak, 130 S. Ct. at 684 (alteration in original) 
(citation omitted). Based on these findings, the 
Court concluded:

In our view the instructions and 
verdict forms did not clearly bring 
about, either through what they said 
or what they implied, the circumstance - 
that Mills found critical, namely, "a 
substantial possibility [sic] that rea­
sonable jurors, upon receiving the 
judge's instructions in this case, and 
in attempting to complete the verdict 
form as instructed, well may have 
thought they were precluded from 
considering any mitigating evidence 
unless all 12 jurors agreed on the 
existence of a particular such circum­
stance."

Id. at 684 (quoting Mills, 486 U.S. at 384).

The Commonwealth claims the instructions 
examined in Spisak are "virtually identical" to the 
language at issue here, which must therefore also 
be read to address only the final balancing ques­
tion. The Commonwealth sees equivalence in "'[i]f 
all twelve members of the jury find by proof beyond 
a reasonable doubt that the aggravating



A p p .  2 5

circumstance in each separate count outweighs the 
mitigating factors,'" Spisak, 130 S. Ct. at 683, and 
"[w]e, the jury, have found unanimously . . . one or 
more aggravating circumstances which outweigh 
any mitigating circumstances,” from Abu-Jamal's 
verdict form. Thus, the Commonwealth contends 
the verdict form's first page does not read that both 
aggravating and mitigating circumstances must be 
found unanimously in violation of Mills.

We disagree. The identified language of 
unanimity at issue in Spisak addressed only how 
the jury should weigh aggravating and mitigating 
circumstances, not how to find either individual 
aggravating or mitigating circumstances. Spisak, 
130 S. Ct. at 684. The forms and instructions in 
Spisak contained no language whatsoever "about 
how-or even whether—the jury should make indi­
vidual determinations that each particular mitigat­
ing circumstance existed." Id. at 684.

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. By contrast with 
Spisak, the identified language of unanimity here 
indisputably addresses more than the final balanc­
ing of aggravating and mitigating factors. "We, the 
jury, have found unanimously," directly refers to 
"one or more aggravating circumstances," and in 
the absence of any instruction or even suggestion to 
the contrary, it is substantially probable the jury



A p p .  2 6

applied the unanimity requirement to "mitigating 
circumstances" as well. When "read naturally," 
Spisak, 130 S. Ct. at 682, in the context of the form 
and instructions, there is a substantial probability 
the word "unanimously" was understood by the 
jury to modify and refer to the finding of both 
aggravating and mitigating circumstances.7

Moreover, by further contrast with Spisak, 
the form and instructions required the jury to 
make individual determinations that certain iden­
tified mitigating circumstances existed and "said or 
. . . implied." id., at 684, that these determinations 
must be made unanimously. The verdict form at 
issue in this case required the jury to select any 
mitigating circumstances found from a list of poten­
tially mitigating circumstances; as discussed, the 
fist is accompanied by spaces for a checkmark after 
each potential circumstance. The trial judge 
instructed the jury to identify each mitigating cir­
cumstance it found and considered in its weighing 
of aggravating and mitigating circumstances:

[The] mitigating circumstances appear 
on the third page here. They run from 
a little (a) to a little letter (h). And

7The same language appears again in the jury 
instructions: "The Crimes Code provides that a verdict must 
be a sentence of death . . .  if the jury unanimously finds one 
or more aggravating circumstances which outweigh any miti­
gating circumstances."



A p p .  2 7

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 [of the first page], which says 
mitigating circumstances.

In Spisak the jury had already determined the 
existence of aggravating circumstances at the guilt 
phase, separately from and before the sentencing 
phase of the trial. Here, the form and instructions 
required the jury to make individual determina­
tions regarding both mitigating and aggravating 
circumstances contemporaneously during the pen­
alty phase. The verdict form introduced the list of 
potential mitigating circumstances with the list of 
aggravating circumstances under one heading 
reading "AGGRAVATING AND MITIGATING 
CIRCUMSTANCES." The jury was instructed 
identically as to each list.8 The parallel structure of

8The jury instructions for aggravating circumstances
stated:

And what 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 on 
the front. Don't spell it out, the whole thing, 
just what letter you might have found.

The trial judge reiterated this instruction for the "second
(continued...)



A p p .  2 8

the form in relation to aggravating and mitigating 
circumstances reads that findings as to each should 
be made similarly. See Mills, 486 U.S. at 378 
("[W]e presume that, unless instructed to the 
contrary, the jury would read similar language 
throughout the form consistently."). Additionally, 
the trial judge distinguished between mitigating 
and aggravating circumstances with respect to the 
proper standard of proof applicable to each.8 9 This

8(...continued)
block" under section (2) and then instructed the jury as to
mitigating circumstances:

And then, you would as I said before, on the 
second page indicate which [aggravating cir­
cumstances] they were and put it on the front 
here, like a small number or (a) or (b) or (c) or 
whatever one you might find. And then, 
underneath that, there are: "The mitigating
circumstances(s) [sic] is/are ___." And those
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.

9The jury instructions stated:

The [C]ommonwealth has the burden of 
proving aggravating circumstances beyond a 
reasonable doubt. The defendant has the 
burden of proving mitigating circumstances,

(continued...)



A p p .  2 9

reinforced the apparent similitude with respect to 
the finding of mitigating and aggravating circum­
stances, increasing the "risk that the jury was mis­
informed," id. at 381, and impermissibly limited in 
its consideration of mitigating evidence. Accord­
ingly, unlike the jury in Spisak, the jury here was 
required to specify not only the aggravating circum­
stances it found but also mitigating circumstances, 
to do so simultaneously, to choose aggravating and 
mitigating circumstances from visually identical 
lists, and to represent its findings as to each in an 
identical manner. In light of what the form and 
instructions both said and implied, and the 
repeated emphasis on unanimous findings, it is 
notable that neither the verdict form nor the 
judge's charge indicated in any manner that the 
jury should apply the unanimity requirement to its 
finding of aggravating but not mitigating circum­
stances.

Accordingly, we conclude our judgment that 
there is a "substantial probability" the jury believed 9

9(...continued)
but only by a preponderance of the evidence. 
This is a lesser burden of proof than beyond a 
reasonable doubt. A preponderance of the evi­
dence exists where one side is more believable 
than the other side. All the evidence from 
both sides, including the evidence you heard 
earlier during the trial-in-chief as to aggra­
vating or mitigating circumstances is impor­
tant and proper for you to consider.



A p p .  3 0

it could not consider any mitigating circumstance 
not unanimously agreed upon is consistent with 
Spisak. "There is, of course, no extrinsic evidence 
of what the jury in this case actually thought." 
Mills, 486 U.S. at 381. But we need only conclude 
a "natural interpretation," id., of the forms and 
instructions together clearly brought about "the 
circumstance that Mills found critical, namely," 
Spisak, 130 S. Ct. at 684, "a substantial probability 
that reasonable jurors . . . well may have thought 
they were precluded from considering any mitigat­
ing evidence unless all 12 jurors agreed on the 
existence of a particular such circumstance," Mills, 
486 U.S. at 384.

V.

The Pennsylvania Supreme Court's decision 
to reject Abu-Jamal's mitigation instruction claim 
involved an objectively unreasonable application of 
Mills. On post-conviction review of this matter, the 
Pennsylvania Supreme Court found no Mills viola­
tion. The Court reasoned:

The verdict slip employed in the 
instant case consisted of three pages.
The requirement of unanimity is found 
only at page one in the section wherein 
the jury is to indicate its sentence.
The second page of the form lists all 
the statutorily enumerated aggravat­
ing circumstances and includes next to



A p p .  3 1

each such circumstance a designated 
space for the jury to mark those cir­
cumstances found. The section where 
the jury is to checkmark those mitigat­
ing circumstances found, appears at 
page three and includes no reference 
to a finding of unanimity. Indeed, 
there are no printed instructions what­
soever on either page two or page 
three. The mere fact that immediately 
following that section of verdict slip, 
the jurors were required to each sign 
their name is of no moment since those 
signature lines naturally appear at the 
conclusion of the form and have no 
explicit correlation to the checklist of 
mitigating circumstances. As such, we 
cannot conclude, as Appellant urges, 
that the structure of the form could 
lead the jurors to believe that they 
must unanimously agree on mitigating 
evidence before such could be consid­
ered. Moreover, verdict shps similar 
to that employed in the instant matter 
have been held by our court not to vio­
late the dictates of Mills.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 119
(Pa. 1998).

The Pennsylvania Supreme Court focused
exclusively on the verdict form and reached its



A p p .  3 2

conclusion without considering the entire jury 
charge. Significantly, the court did not evaluate or 
address the trial judge's oral instructions. See id. 
As a consequence, the court did not consider 
whether the language "a verdict must be a sentence 
of death . . .  if the jury unanimously finds one or 
more aggravating circumstances which outweigh 
any mitigating circumstances," would create a 
substantial probability the jury had understood the 
instructions to preclude consideration of mitigating 
circumstances that were not agreed to by all twelve 
members of the jury. Nor did the court consider 
the effect on the jury of being instructed identically 
and contemporaneously with respect to the making 
of individual determinations regarding mitigating 
and aggravating circumstances. Moreover, 
although the court rejected the claim that the 
"structure of the form could lead the jurors to 
believe that they must unanimously agree on 
mitigating evidence before such could be consid­
ered," id., it conducted an incomplete analysis of 
only a portion of the verdict form, rather than the 
entire form. The court did not consider whether 
the language "[w]e, the jury, have found unani­
mously . . . one or more aggravating circumstances 
which outweigh any mitigating circumstances," 
would create a substantial probability the jury had 
applied the form in violation of Mills, nor did the 
court address the likely effect on the jury of having 
to choose aggravating and mitigating circum­
stances from visually identical lists and represent 
its findings as to each in an identical manner.



A p p .  3 3

Accordingly, the Pennsylvania Supreme Court 
failed to evaluate whether the complete text of the 
verdict form, together with the jury instructions, 
would create a substantial probability the jury 
believed both aggravating and mitigating circum­
stances must be found unanimously. See id. For 
these reasons, the Pennsylvania Supreme Court's 
application of Mills was objectively unreasonable.

VI.

Like the Mills Court, "[ajlthough we are hes­
itant to infer too much about the . . . verdict form 
from. . . . well-meant efforts to remove ambiguity 
from the State's capital sentencing scheme, we can­
not avoid noticing . . . significant changes effected 
in instructions to the jury.” 486 U.S. at 382. On 
February 1, 1989, the Pennsylvania Supreme Court 
adopted a uniform sentencing verdict form for cap­
ital cases. See Pa. R. Crim P. 358A (effective July 
1, 1989). The new form, promulgated shortly after 
Mills was decided on June 6, 1988, "reflects the 
requirement that jurors not be prevented from 
considering all evidence in mitigation," Mills, 486 
U.S. at 382, and makes explicit that unanimity is 
not required in determining the existence of miti­
gating circumstances. The relevant portion of the 
revised form reads:



II. SENTENCING VERDICT AND 
FINDINGS

If you have reached a unanimous verdict, 
complete this part of the form.

In Section A, indicate whether the 
sentencing verdict is death or life 
imprisonment. If the sentence is 
death, indicate the basis for that ver­
dict by completing Section B. If the 
sentence is life imprisonment, indicate 
the basis for that verdict by completing 
Section C.
A. We, the jury, unanimously sentence 
the defendant to (check one):
_____Death
_____Life Imprisonment
B. The findings on which the sentence 
of death is based are (check one):
_____1. At least one aggravating
circumstance and no mitigating 
circumstance.
The aggravating circumstance(s) 
unanimously found (is) (are):

A p p .  3 4

_____2. One or more aggravating
circumstances which outweigh(s) any 
mitigating circumstance(s).
The aggravating circumstance(s) 
unanimously found (is) (are):



A p p .  3 5

The mitigating circumstance(s) found 
by one or more of us (is) (are):

C. The findings on which the sentence 
of life imprisonment is based are 
(check one):
_____1. No aggravating circumstance
exists.
_____2. The mitigating circum­
stance (s) (is) (are) not outweighed by 
the aggravating circumstance (s).
The mitigating circumstance(s) found 
by one or more of us (is) (are):

The aggravating circumstance(s) 
unanimously found (is) (are):

Pa. R. Cl rim P. 358A (emphasis added). The form 
used in Abu-Jamal's trial simply read "[w]e, the 
jury, have found unanimously . . . one or more 
aggravating circumstances which outweigh any 
mitigating circumstances. The aggravating cir­
cumstance (s) is/are____. The mitigating circum­
stance^) is/are____." By contrast, the revised
uniform verdict slip states "[t]he mitigating circum­
stance^) found by one or more of us (is) (are)," 
thereby making clear that, although aggravating 
circumstances must be found unanimously, miti­
gating evidence need not be found unanimously in 
order to be considered by individual jurors during 
the weighing and balancing process. The



A p p .  3 6

Pennsylvania Suggested Standard Criminal Jury 
Instructions were also amended to remove ambigu­
ity with respect to the consideration of mitigating 
evidence during the weighing and balancing pro­
cess. See Pennsylvania Suggested Standard Crim­
inal Jury Instructions §15.2502H(3) (2006). The 
new instruction reads, in relevant part:

When voting on the general findings, 
you are to regard a particular aggra­
vating circumstance as present only if 
you all agree that it is present. On the 
other hand, each of you is free to 
regard a particular mitigating circum­
stance as present despite what other 
jurors may believe. This is different 
from the general findings to reach your 
ultimate sentence of either life in 
prison or death. The specific findings 
as to any particular aggravating cir­
cumstance must be unanimous. All of 
you must agree that the Common­
wealth has proven it beyond a reason­
able doubt. That is not true for any 
mitigating circumstance. Any circum­
stance that any juror considers to be 
mitigating may be considered by that 
juror in determining the proper sen­
tence. This different treatment of 
aggravating and mitigating circum­
stances is one of the law's safeguards 
against unjust death sentences. It



A p p .  3 7

gives a defendant the full benefit of 
any mitigating circumstances. It is 
closely related to the burden of proof 
requirements. Remember, the Com­
monwealth must prove any aggravat­
ing circumstance beyond a reasonable 
doubt while the defendant only has to 
prove any mitigating circumstance by 
a preponderance of the evidence. Your 
final sentence-fife imprisonment or 
death-must be unanimous. All of you 
must agree that the sentence should 
be fife imprisonment or that the sen­
tence should be death because there is 
at least one aggravating circumstance 
and no mitigating circumstance or 
because the aggravating circumstance 
or circumstances outweigh the mitigat­
ing circumstance or circumstances 
found by any juror.

Id. These clarifications highlight the ambiguity at 
issue in this case and on their own serve at least to 
suggest the substantial probability that "some 
jurors were prevented from considering 'factors 
which may call for a less severe penalty.’" Mills, 
486 U.S. at 376 (quoting Lockett u. Ohio, 438 U.S. 
586, 605 (1978)). Accordingly, ”[w]e can and do 
infer from these changes at least some concern . . . 
that juries could misunderstand the previous 
instructions as to unanimity and the consideration



A p p .  3 8

of mitigating evidence by individual jurors." Id. at 
382.

VII.

For the foregoing reasons, we will affirm the 
District Court's grant of relief on the mitigation 
instruction claim. As the District Court noted, the 
"Commonwealth of Pennsylvania may conduct a 
new sentencing hearing in a manner consistent 
with this opinion within 180 days of the Order 
accompanying this [opinion], during which period 
the execution of the writ of habeas corpus will be 
stayed, or shall sentence [Abu-Jamal] to life impris­
onment." Abu-Jamal, 2001 WL 1609690, at *130.



A p p .  3 9

Supreme Court of the United States 
Office of the Clerk 

Washington, DC 20543-0001

William K. Suter
Clerk of the Court 
(302) 479-3011

January 19, 2010

Mr. Ronald Eisenberg 
Deputy District Attorney 
District Attorney’s Office 
Three South Penn Square 
Philadelphia, PA 19107-3499

Re: Jeffrey A. Beard, Secretary,
Pennsylvania Department of 
Corrections, et al. 
v. Mumia Abu-Jamal 
No. 08-652

Dear Mr. Eisenberg:

The Court today entered the following order 
in the above-entitled case:

The motion of respondent for leave to pro­
ceed in forma pauperis is granted. The petition for 
a writ of certiorari is granted. The judgment is 
vacated, and the case is remanded to the United 
States Court of Appeals for the Third Circuit, for



further consideration in light of Smith v, Spisak, 
558 U.S.___(2010).

The judgment or mandate of this Court will 
not issue for at least twenty-five days pursuant to 
Rule 45. Should a petition for rehearing be filed 
timely, the judgment or mandate will be further 
stayed pending this Court’s action on the petition 
for rehearing.

A p p .  4 0

Sincerely,

/s/
William K. Suter, Clerk



A p p .  4 1

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

Nos. 01-9014 & 02-9001

MUMIA ABU-JAMAL, 
a/k/a WESLEY COOK

Mumia Abu-Jamal, 
Appellant at No. 02-9001

MARTIN HORN, PENNSYLVANIA DIRECTOR 
OF CORRECTIONS; CONNER BLAINE, 

SUPERINTENDENT, SCI GREENE; DISTRICT 
ATTORNEY FOR PHILADELPHIA COUNTY; 
THE ATTORNEY GENERAL OF THE STATE 

OF PENNSYLVANIA,
Appellants at No. 01-9014

(D.C. Civ. No. 99-cv-5089)

SUR PETITION FOR REHEARING

Present: SCIRICA, Chief Judge, 
SLOVITER, BARRY, AMBRO, FUENTES,



A p p .  4 2

SMITH, CHAGARES, JORDAN, HARDIMAN 
and COWEN*, Circuit Judges.

The petition for rehearing filed by appellee/ 
cross-appellant Mumia Abu-Jamal in the above- 
entitled case having been submitted to the judges 
who participated in the decision of this Court and 
to all the other available circuit judges of the circuit 
in regular active service, and no judge who concur­
red in the decision having asked for rehearing, and 
a majority of the circuit judges of the circuit in reg­
ular service not having voted for rehearing, the 
petition for rehearing by the panel and the Court 
en banc, is denied. Judge Ambro would grant 
rehearing en banc.

BY THE COURT,

/si Anthony J. Scirica 
Chief Judge

Dated: July 22, 2008 
CMD/cc: Robert R. Bryan, Esq. 

Judith L. Ritter, Esq. 
Hugh J. Burns, Jr., Esq. 
Ronald Eisenberg, Esq. 
Christina Swarns, Esq. 
Jill Elijah, Esq.

*As to panel rehearing only.



App. 43 

(EXCERPT)

PRECEDENTIAL

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

Nos. 01-9014 & 02-9001

Ml'MIA ABU-JAMAL, 
a/k/a WESLEY COOK

Mumia Abu-Jamal, 
Appellant at No. 02-9001

v.

MARTIN HORN, PENNSYLVANIA DIRECTOR 
OF CORRECTIONS; CONNER BLAINE, 

SUPERINTENDENT, SCI GREENE; DISTRICT 
ATTORNEY FOR PHILADELPHIA COUNTY; 
THE ATTORNEY GENERAL OF THE STATE 

OF PENNSYLVANIA,
Appellants at No. 01-9014

On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 

D.C. Civil Action No. 99-cv-5Q89 
(Honorable William H. Yohn Jr.)



A p p .  4 4

Argued May 17, 2007 
Before: SCIRICA, Chief Judge,

AMBRO and COWEN, Circuit Judges.

(Filed March 27, 2008)

HUGH J. BURNS, JR., ESQUIRE (ARGUED) 
RONALD EISENBERG, ESQUIRE 
Office of District Attorney 
Three South Penn Square 
Philadelphia, Pennsylvania 19107-3499

Attorneys for Appellants/Cross-Appellees, 
Martin Horn, Pennsylvania Director of Cor­
rections; Conner Blaine, Superintendent, SCI 
Greene; District Attorney for Philadelphia 
County; The Attorney General of the State of 
Pennsylvania.

ROBERT R. BRYAN, ESQUIRE (ARGUED)
2088 Union Street, Suite 4 
San Francisco, California 94123

JUDITH L. RITTER, ESQUIRE (ARGUED) 
Widener University School of Law 
P.O. Box 7474 
4601 Concord Pike 
Wilmington, Delaware 19803

Attorneys for Appellee/Cross-Appellant, 
Mumia Abu-Jamal



A p p .  4 5

CHRISTINA A. SWARNS, ESQUIRE (ARGUED) 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, New York 10013

Attorney for Amicus Curiae-Appellee, The 
NAACP Legal Defense and Educational 
Fund, Inc.

JILL SOFFIYAH ELIJAH, ESQUIRE 
Criminal Justice Institute 
Harvard Law School 
301 Austin Hall 
1515 Massachusetts Avenue 
Cambridge, Massachusetts 02138

Attorney for Amici Curiae-Appellees, 
National Lawyers Guild, National 
Conference of Black Lawyers, International 
Association of Democratic Lawyers, Charles 
Hamilton Houston Institute for Race & 
Justice of Harvard Law School, Southern 
Center for Human Rights, National Jury 
Project.

OPINION OF THE COURT

SCIRICA, Chief Judge.

This petition for collateral review under 28 
U.S.C. § 2254 came to us more than two decades 
after trial. In 1982, Mumia Abu-Jamal was



A p p .  4 6

convicted and sentenced to death in a Pennsylvania 
court for the murder of Philadelphia Police Officer 
Daniel Faulkner. Following denial of his appeals in 
state court, Abu-Jamal filed a petition for a writ of 
habeas corpus in federal district court. The Dis­
trict Court vacated his death sentence and granted 
a new penalty hearing, but denied all other relief, 
affirming the judgment of conviction. The Com­
monwealth of Pennsylvania appealed the order 
vacating the death penalty. Abu-Jamal appealed 
his conviction.

We consider four issues on appeal: (1) 
whether the Commonwealth's use of peremptory 
challenges violated Abu-Jamal's constitutional 
rights under Batson v. Kentucky, 476 U.S. 79 
(1986); (2) whether the prosecution's trial summa­
tion denied Abu-Jamal due process; (3) whether 
Abu-Jamal was denied due process during post-con­
viction proceedings as a result of judicial bias; and 
(4) whether the jury charge and sentencing verdict 
sheet violated Abu-Jamal's constitutional rights 
under Mills v. Maryland, 486 U.S. 367 (1988), and 
Boyde v. California, 494 U.S. 370 (1990). We will 
affirm the judgment of the District Court.

I.

On December 9, 1981, between three thirty 
and four o'clock in the morning, Philadelphia Police 
Officer Daniel Faulkner made a traffic stop of a 
Volkswagen driven by William Cook, Abu-Jamal's



A p p .  4 7

brother, on Locust Street between 12th and 13th 
Streets, in Philadelphia. Officer Faulkner radioed 
for back-up assistance, and both men exited their 
vehicles. A struggle ensued, and Officer Faulkner 
tried to secure Cook's hands behind his back. At 
that moment, Abu-Jamal, who was in a parking lot 
on the opposite side of the street, ran toward Offi­
cer Faulkner and Cook. As he approached, Abu- 
Jamal shot Officer Faulkner in the back. As Officer 
Faulkner fell to the ground, he was able to turn 
around, reach for his own firearm, and fire at Abu- 
Jamal, striking him in the chest. Abu-Jamal, now 
standing over Officer Faulkner, fired four shots at 
close range. One shot struck Officer Faulkner 
between the eyes and entered his brain.

Within a minute of Officer Faulkner's radio 
call, Officers Robert Shoemaker and James Forbes 
responded. Robert Chobert, a taxi cab driver who 
had just let out a passenger at 13th and Locust, 
stopped the officers before they arrived at the scene 
and notified them an officer had just been shot. 
Officer Shoemaker then approached the parked 
Volkswagen on foot and observed Abu-Jamal 
sitting on the curb. Despite Officer Shoemaker's 
repeated orders to freeze, Abu-Jamal did not 
remain still and reached for an object Officer 
Shoemaker could not yet identify. As Officer 
Shoemaker inched closer, he saw a revolver on the 
ground close to Abu-Jamal's hand. Officer Shoe­
maker kicked Abu-Jamal in the chest to move him 
away from the gun, and then kicked the gun out of



A p p .  4 8

Abu-Jamal's reach. Officer Shoemaker then 
motioned for Officer Forbes to watch Abu-Jamal 
while Shoemaker attended to Officer Faulkner. 
During this time, Officer Forbes also searched 
Cook, who had remained at the scene and was 
standing near the wall of an adjacent building. 
Cook made only a single statement: "I had nothing 
to do with it."

Additional officers arrived on the scene. Offi­
cer Faulkner was immediately rushed to Thomas 
Jefferson University Hospital, where he was later 
pronounced dead. Officers took Abu-Jamal into 
custody. He resisted arrest while officers moved 
him to a police van and tried to handcuff him. Abu- 
Jamal was also taken to Thomas Jefferson Univer­
sity Hospital. While Abu-Jamal was waiting for 
treatment in the emergency room's lobby, Priscilla 
Durham, a security guard on duty at the hospital, 
heard Abu-Jamal twice repeat, "I shot the mother­
fucker, and I hope the motherfucker dies." Officer 
Gary Bell also heard Abu-Jamal make this state­
ment. Hospital personnel then took Abu-Jamal 
into the emergency room for treatment.

Officer Forbes recovered two weapons from 
the scene. A standard police-issue Smith & Wesson 
.38 caliber Pohce Special revolver, registered and 
issued to Officer Faulkner, with one spent Reming­
ton .38 special cartridge, was found on the street 
about five feet away from Officer Faulkner. Ballis­
tic testing later confirmed the bullet that struck



A p p .  4 9

Abu-Jamal was fired from Officer Faulkner's 
revolver. A Charter Arms .38 caliber revolver 
containing five "Plus-P" high-velocity spent car­
tridges was found on the sidewalk near Abu-Jamal. 
Abu-Jamal had purchased this revolver in June 
1979 and it was registered in his name. Officer 
Anthony Paul, supervisor of the Firearms Identifi­
cation Unit in the Laboratory Division of the Phila­
delphia Police Department, testified at trial that 
the bullet recovered from Officer Faulkner's head 
was badly mutilated and could not be matched with 
a specific firearm. Officer Paul also testified that 
the recovered bullet specimen had eight lands and 
grooves with a right hand direction of twist, which 
was consistent with a bullet fired from a Charter 
Arms revolver.

The Commonwealth presented four eye-wit­
nesses at trial. Cynthia White testified she saw 
Abu-Jamal run out of a parking lot on Locust 
Street as Officer Faulkner attempted to subdue 
Cook, and saw Abu-Jamal shoot Officer Faulkner 
in the back. She testified she then watched Officer 
Faulkner stumble and fall, and then saw Abu- 
Jamal hover over Officer Faulkner, shoot him a few 
more times at a close distance, and then sit down 
on the curb. Robert Chobert testified he heard a 
shot, looked up, saw Officer Faulkner fall to the 
ground, and then saw Abu-Jamal fire a few shots 
into Officer Faulkner. At the scene, Chobert iden­
tified Abu-Jamal as the person who shot Officer 
Faulkner. Michael Scanlon testified he witnessed



A p p .  5 0

an assailant, whom he could not identify, shoot 
Officer Faulkner from behind, then watched the 
officer fall, and saw the assailant stand over the 
officer and shoot him in the face. Albert Magliton 
testified he saw Abu-Jamal run across the street 
from the parking lot, then he heard shots and saw 
Officer Faulkner on the ground and Abu-Jamal on 
the curb. Maghton identified Abu-Jamal as the 
shooter, both at the scene and at trial.

On December 15, 1981, Anthony Jackson 
was appointed counsel for Abu-Jamal. Abu-Jamal 
was arraigned on charges of first degree murder 
and other related charges. The court granted Abu- 
Jamal's request to proceed pro se and the court 
designated Jackson, who had spent five months 
preparing for trial, as back-up counsel.

A jury trial commenced on June 7, 1982. 
Abu-Jamal was disruptive, uncooperative, and 
hostile. He repeatedly insisted that John Africa, a 
social activist who was not a lawyer, be appointed 
as counsel, even after the court denied this request. 
Abu-Jamal's conduct necessitated his removal from 
proceeding pro se for the remainder of the trial, and 
at times caused him to be physically removed from 
the courtroom. The jury was instructed against 
drawing negative inferences from his removal. 
Jackson, who was present throughout the entire 
trial and was reinstated as primary counsel when 
Abu-Jamal was removed, kept Abu-Jamal fully 
informed throughout the proceedings.



A p p .  5 1

During the lengthy trial, Jackson cross- 
examined each witness called by the prosecutor. 
Abu-Jamal presented seventeen witnesses: eight 
fact witnesses and nine character witnesses.
Neither Abu-Jamal nor Cook testified at trial. On 
July 2, 1982, the jury found Abu-Jamal guilty of 
first degree murder and of possessing an instru­
ment of a crime.

On July 3, 1982, the jury heard evidence and 
argument in a penalty phase hearing. Later that 
day, the jury returned a sentence of death. The 
jury found one aggravating circumstance, killing a 
police officer acting in the line of duty, and one 
mitigating circumstance, Abu-Jamal's lack of a 
significant criminal record. The court denied post­
trial motions on May 25, 1983, and imposed a sen­
tence of death. The court then appointed new 
appellate counsel for Abu-Jamal's direct appeal to 
the Pennsylvania Supreme Court.

This case has been heard and considered by 
several courts throughout a lengthy appeals pro­
cess. On direct review, the Pennsylvania Supreme 
Court affirmed the trial court's judgment of convic­
tion and sentence on March 6, 1989. See Common­
wealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989). 
Abu-Jamal presented a Batson v. Kentucky, 476 
U.S. 79 (1986), argument -  the prosecution system­
atically excluded jurors by race through the use of 
Peremptory challenges — for the first time on his



A p p .  5 2

direct appeal to the Pennsylvania Supreme 
Court. . . .

k k k k

VI.

The District Court granted relief on Abu- 
Jamal's claim that the jury instructions and verdict 
form employed in the sentencing phase of Abu- 
Jamal's trial were constitutionally defective under 
Mills v. Maryland, 486 U.S. 367 (1988), and Boyde 
v. California, 494 U.S. 370 (1990), and found the 
Pennsylvania Supreme Court was objectively 
unreasonable in finding otherwise. The District 
Court found a '"reasonable likelihood that the jury 
has applied the . . . instruction [and form] in a way 
that prevents the consideration of constitutionally 
relevant evidence' regarding the existence of miti­
gating circumstances (i.e., those weighing against 
the imposition of the death penalty)." Abu-Jamal, 
2001 WL 1609690, at *1 (quoting Boyde, 494 U.S. 
at 380 (alteration in original)). The Commonwealth 
appealed the District Court's grant of relief on this 
claim.

A.

The Commonwealth contends Abu-Jamal did 
not exhaust the Mills claim as required by 28 
U.S.C. § 2254(b)(1)(A), alleging Abu-Jamal only 
raised the claim in state court as one of ineffective



A p p .  5 3

assistance of counsel and based his argument only 
on the verdict form, not on the court's instructions 
to the jury. A petitioner seeking relief under §
2254 must exhaust "the remedies available," Werts 
v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000), by 
"present[ing] in substance the same claim he is now 
seeking to have the federal courts review. Even if a 
state court fails to rule on the merits of a claim, a 
properly presented claim will be considered 
exhausted." Johnson v. Pinchak, 392 F.3d 551, 556 
(3d Cir. 2004) (internal citations omitted); see also 
Baldwin v. Reese, 541 U.S. 27, 33 (2004) ("[A] state 
prisoner does not 'fairly present' a claim to a state 
court if that court must read beyond a petition or a 
brief (or similar document) that does not alert it to 
the presence of a federal claim in order to find 
material. . . that does so.").

The Supreme Court decided Mills in 1988, 
while Abu-Jamal's claim was on direct appeal to 
the Pennsylvania Supreme Court.26 Abu-Jamal 
first raised the Mills claim on PCRA review. The 
PCRA court found that because Abu-Jamal failed to 
assert this claim at trial or on direct appeal, "this 
claim should be waived," and could not form the

26We need not conduct retroactivity analysis under 
Teague v. L a n e , 489 U.S. 288 (1989), because Abu-Jamal's 
conviction did not become final until the United States 
Supreme Court denied his petition for writ of certiorari on 
October 1, 1990, which was after the Court decided M ills .  
See id. at 310.



A p p .  5 4

basis for PCRA relief. PCRA Op., 1995 WL 
1315980, at *111. The PCRA court then considered 
the Mills claim on the merits in the alternative but 
did not find a constitutional violation, concluding 
that similar verdict forms and instructions had 
been upheld in Zettlemoyer u. Fulcomer, 923 F.2d 
284, 306-08 (3d Cir. 1991), and by the Pennsylvania 
Supreme Court. Id. The Pennsylvania Supreme 
Court, reviewing the PCRA court, noted "[Abu- 
Jamal] next submits that the penalty phase verdict 
form was constitutionally defective pursuant to the 
dictates of Mills v. Maryland . . ." and then pro­
ceeded to address the Mills claim on the merits. 
PCRA Appeal Op., 720 A.2d at 119. Because Abu- 
Jamal presented the Mills claim to the state courts 
on the merits, we find this claim exhausted and 
properly before us for review.

Additionally, the Commonwealth contends 
that Abu-Jamal's Mills claim is procedurally 
defaulted for purposes of habeas review. "[A] pro­
cedural default does not bar consideration of a 
federal claim on either direct or habeas review 
unless the last state court rendering a judgment in 
the case clearly and expressly states that its judg­
ment rests on a state procedural bar." Harris, 489 
U.S. at 263 (internal quotations omitted); see also 
Coleman v. Thompson, 501 U.S. 722, 739 (1991) 
(noting a claim is not procedurally defaulted if it 
"fairly appears that a state court judgment rested 
primarily on federal law or was interwoven with 
federal law"). Our review is foreclosed if the last

A



A p p .  5 5

state court to consider the issue "addresses the 
merits of the federal claim only in the course of 
resolving another, independent [ineffective assis­
tance of counsel] claim." Sistrunk, 96 F.3d at 675.

Abu-Jamal asserted the Mills claim for the 
first time on collateral review. The PCRA court 
stated:

[Abu-Jamal] fails to raise this claim at 
trial or on direct appeal. Therefore, 
this claim should be waived. As [Abu- 
Jamal] has not overcome that proce­
dural bar, the claim is [sic] should be 
precluded from PCRA review and may 
not be further considered. 42 Pa.
Cons. Stat. § 9543(a)(3). The following 
discussion of the merits is undertaken 
in the alternative.

PCRA Op., 1995 WL 1315980, at *111. The PCRA 
court proceeded to discuss the merits only "in the 
alternative." Id.

On appeal of the denial of state collateral 
relief (PCRA) Abu-Jamal challenged the previous 
Mills rulings on ineffective assistance of counsel 
grounds as well as on the merits. Upon review of 
the PCRA court's decision, the Pennsylvania 
Supreme Court addressed the Mills claim on the 
merits. The court did not clearly state it was 
addressing the merits of the Mills claim as a



A p p .  5 6

component of an ineffective assistance of counsel 
claim nor did it expressly find the claim waived. 
The court's discussion of waiver, relegated to a 
footnote at the beginning of its opinion, see PCRA 
Appeal Op., 720 A.2d at 88 n.9, is insufficient to bar 
our review. The court did not enumerate wThich 
claims, if any, it would address only as ineffective 
assistance claims. Without a clear and express 
statement that the state court disposed of this 
specific claim on independent state procedural 
grounds, we cannot find the claim procedurally 
defaulted.27

On the merits, the Commonwealth contends 
our review is limited to an assessment of the ver­
dict form. The Commonwealth maintains Abu- 
Jamal only raised a Mills claim based on the 
structure of the verdict form and did not fairly 
present an allegation of Mills error based on the 
jury instructions. But in his briefs to both the 
PCRA court and the Pennsylvania Supreme Court 
on PCRA review, Abu-Jamal raised allegations of 
Mills error grounded in both the verdict form and

27As noted, the Pennsylvania Supreme Court applied 
a relaxed waiver rule to all issues arising in a death penalty 
case. Since a strict waiver rule was not firmly established 
and regularly followed, state law procedural grounds are not 
an adequate basis to support the judgment and cannot be a 
ground for procedural default.



A p p .  5 7

the trial court's jury instruction.28 In his brief to 
the Pennsylvania Supreme Court on PCRA review, 
Abu-Jamal focused his argument on the structure 
of the verdict form, but he cited Mills for the prop­
osition that the combined effect of the jury instruc­
tions and the verdict form may result in constitu­
tional error, arguing, "[njothing in the court's 
instructions would have corrected the jury's prob­
able misunderstanding based on the form. The 
Court must follow Mills and vacate the death sen­
tence." The PCRA court addressed both the jury 
instructions and the verdict form, noting "[t]he 
constitutionality of similar verdict forms, along 
with the instructions given here, has repeatedly 
been upheld." PCRA Op., 1995 WL 1315980, at 
*111. Even though the Pennsylvania Supreme 
Court in its Mills analysis on PCRA review only 
considered the verdict form, we find Abu-Jamal 
raised a Mills claim based on both the verdict form 
and the jury instructions. Therefore, we will not 
consider either in isolation.

Our review is limited to whether the Penn­
sylvania Supreme Court unreasonably applied 
Mills. See 28 U.S.C. § 2254(d)(1); Williams, 529 
U.S. at 405. The Pennsylvania Supreme Court 
correctly identified the applicable Supreme Court

28As noted, Abu-Jamal did not raise a Mills claim at 
trial or on direct review to the Pennsylvania Supreme Court, 
but he first raised it on PCRA review.



A p p .  5 8

precedent, Mills, and the facts here are not "mate­
rially indistinguishable" from the facts in Mills. 
See Williams, 529 U.S. at 406,29 Accordingly, the 
Pennsylvania Supreme Court's conclusion was not 
"contrary to" Mills, and we need only determine 
whether the court's conclusion was "objectively 
unreasonable." 28 U.S.C. § 2254(d).

B.

Abu-Jamal contends the verdict form uncon­
stitutionally precluded members of the jury from 
considering a particular mitigating circumstance 
unless there was unanimous agreement as to its 
proof. Abu-Jamal maintains the jury instructions 
compounded this error. The Commonwealth con­
tends the Pennsylvania Supreme Court's decision 
did not unreasonably apply Supreme Court prece­
dent under the AEDPA standard of review, citing 
Zettlemoyer. The Pennsylvania Supreme Court 
affirmed the PCRA court's denial of post-conviction 
relief on the Mills claim. PCRA Appeal Op., 720 
A.2d at 119. We must determine whether the 
Pennsylvania Supreme Court decision was unrea­
sonable in light of Mills and Boyde.

290 f  course, if the facts were materially indistinguish­
able then the Pennsylvania Supreme Court's conclusion 
would be "contrary to" Mills.



A p p .  5 9

In Mills, the Supreme Court vacated a death 
sentence after finding there was a "substantial 
probability that reasonable jurors, upon receiving 
the judge's instructions in this case, and in 
attempting to complete the verdict form as 
instructed, well may have thought they were pre­
cluded from considering any mitigating evidence 
unless all 12 jurors agreed on the existence of a 
particular such circumstance." Mills, 486 U.S. at 
384. In capital cases, a juror must "be permitted to 
consider and give effect to mitigating evidence 
when deciding the ultimate question whether to 
vote for a sentence of death." McKoy v. North 
Carolina, 494 U.S. 433, 442-43 (1990); see also 
Mills, 486 U.S. at 374-75; Eddings v. Oklahoma,
455 U.S. 104, 110 (1982); Lockett v. Ohio, 438 U.S. 
586, 604 (1978) (plurality opinion).

The petitioner in Mills challenged Mary­
land's capital sentencing statute, as applied to him, 
contending a reasonable juror could have under­
stood the verdict form and the judge's instructions 
to require jury unanimity on any mitigating cir­
cumstances. The Court considered an "intuitively 
disturbing" hypothetical situation:

All 12 jurors might agree that some 
mitigating circumstances were pres­
ent, and even that those mitigating 
circumstances were significant enough 
to outweigh any aggravating circum­
stance found to exist. But unless all



A p p .  6 0

12 could agree that the same mitigat­
ing circumstance was present, they 
would never be permitted to engage in 
the weighing process or any delibera­
tion on the appropriateness of the 
death penalty.

Mills, 486 U.S. at 374. The Court concluded that 
even though a constitutional construction of Mary­
land's sentencing scheme was possible, reasonable 
jurors could have interpreted the verdict form and 
judge's instructions to preclude consideration of 
mitigating circumstances if not found unanimously. 
Accordingly, the Court vacated Mills's sentence 
because "[t]he possibility that a single juror could 
block such consideration, and consequently require 
the jury to impose the death penalty, is one we dare 
not risk." Id. at 384.

In Mills, the Court posed "[t]he critical ques­
tion . . . whether petitioner's interpretation of the 
sentencing process is one a reasonable jury could 
have drawn from the instructions given by the trial 
judge and from the verdict form employed in this 
case." Id. at 375-76. InBoyde v. California, 494 
U.S. 370 (1990), the Supreme Court clarified the 
legal standard as "whether there is a reasonable 
likelihood that the jury has applied the challenged 
instruction in a way that prevents the considera­
tion of constitutionally relevant evidence." Id. at 
380. The District Court found the Pennsylvania



Supreme Court's determination unreasonable. We 
agree.

Turning to this case, we examine the verdict 
form used at trial. The first page of the three-page 
verdict form stated, in part:

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

[X] death
[ ] life imprisonment.

(2) (To be used only if the a foresaid sen­
tence is death)
We, the jury, have found unanimously 

[ ] at least one aggravating circum­
stance and no mitigating cir­
cumstance. The aggravating 
circumstance (s) is/are___________

[X] one or more aggravating circum­
stances which outweigh any 
mitigating circumstances. The 
aggravating circumstance(s) is/are
_______________ A_______________
The mitigating circumstance (s) 
is/are_________ A_______________ .

The second page of the verdict form listed the pos­
sible aggravating circumstances and the third page 
listed the possible mitigating circumstances, each 
with a designated space for the jury to check those 
aggravating or mitigating circumstances found.



A p p .  6 2

Neither the second nor the third page had addi­
tional instructions. At the bottom of the third 
page, the jurors signed their names and dated the 
form.

The jury charge here recited, in part:

Members of the jury, you must now 
decide whether the defendant is to be 
sentenced to death or life imprison­
ment. The sentence will depend upon 
your findings concerning aggravating 
and mitigating circumstances. The 
Crimes Code provides that a verdict 
must be a sentence of death if the jury 
unanimously finds at least one aggra­
vating circumstance and no mitigating 
circumstance, or if the jury unani­
mously finds one or more aggravating 
circumstances which outweigh any 
mitigating circumstances.

The verdict must be a sentence 
of life imprisonment in all other cases 
. . . .  The Commonwealth has the 
burden of proving aggravating circum­
stances beyond a reasonable doubt. 
The defendant has the burden of prov­
ing mitigating circumstances, but only 
by a preponderance of the evidence. 
This is a lesser burden of proof than 
beyond a reasonable doubt. A



A p p .  6 3

preponderance of the evidence exists 
where one side is more believable than 
the other side . . . .

Now, the verdict is for you, 
members of the jury. Remember and 
consider all of the evidence giving it 
the weight to which it is entitled. 
Remember that you are not merely 
recommending a punishment. The 
verdict you return will actually fix the 
punishment at death or life imprison­
ment. Remember again that your 
verdict must be unanimous. It cannot 
be reached by a majority vote or by 
any percentage. It must be the verdict 
of each and everyone [sic] of you.

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

The court then read the verdict form to the jury.



A p p .  6 4

The Pennsylvania Supreme Court on PCRA 
review found there was no Mills violation. PCRA 
Appeal Op., 720 A.2d at 119. It reached this con­
clusion without evaluating whether there was a 
reasonable likelihood that the jury could have mis­
interpreted the entire scheme employed at the 
sentencing phase, that is, the structure and subs­
tance of the verdict form together with the oral 
instructions from the judge. As noted, the Pennsyl­
vania Supreme Court did not consider the judge's 
jury instructions. Instead, the court focused and 
relied on the verdict form in finding no merit to the 
Mills claim. Id. In its opinion, the Pennsylvania 
Supreme Court only addressed the verdict form, 
stating:

The verdict slip employed in the 
instant case consisted of three pages.
The requirement of unanimity is found 
only at page one in the section wherein 
the jury is to indicate its sentence.
The second page of the form lists all 
the statutorily enumerated aggravat­
ing circumstances and includes next to 
each such circumstance a designated 
space for the jury to mark those cir­
cumstances found. The section where 
the jury is to checkmark those mitigat­
ing circumstances found, appears at 
page three and includes no reference 
to a finding of unanimity. Indeed, 
there are no printed instructions



whatsoever on either page two or page
three.

Id. In addition, the court found that the jurors' 
signatures on the third page was "of no moment 
since those signature lines naturally appear at the 
conclusion of the form and have no explicit correla­
tion to the checklist of mitigating circumstances."
Id. The court then held it could not conclude "that 
the structure of the form could lead the jurors to 
believe that they must unanimously agree on miti­
gating evidence before such could be considered."
Id. In reaching its conclusion, the Pennsylvania 
Supreme Court noted it had upheld similar verdict 
forms against a Mills challenge. Id.

The District Court found the Pennsylvania 
Supreme Court's decision was objectively unreason­
able under Mills and Boyde. Abu-Jamal, 2001 WL 
1609690, at *126. The court relied upon several 
factors to reach this conclusion, including the 
Pennsylvania Supreme Court's failure to address 
"the consequence of the jury instructions in this 
case, much less to reach a reasonable conclusion 
regarding the effect of the Jamal charge, and [it] 
compounded this error by unreasonably fading to 
perceive the probable impact of the verdict form on 
the jury's impression regarding the need for

A p p .  6 5



A p p .  6 6

unanimity."30 Id. The court concluded the verdict 
form and jury instructions "created a reasonable 
hkelihood that the jury believed that it was pre­
cluded from considering a mitigating circumstance 
that had not been found unanimously to exist." Id.

We agree the Pennsylvania Supreme Court's 
failure to address the entire sentencing scheme 
resulted in an incomplete and unreasonable appli­
cation of Mills and Boyde. It was unreasonable for 
the Pennsylvania Supreme Court to reach its con­
clusion that the "structure of the form," PCRA 
Appeal Op., 720 A.2d at 119, could not lead to juror 
confusion based on only a portion of the form, 
rather than the entire form, and without evaluat­
ing whether there was a reasonable likelihood of 
jury confusion based on an interpretation of the 
judge's jury instructions and the entire verdict form 
together.

The verdict form's first page, especially the 
language that stated "we, the jury, have found 
unanimously . . . one or more aggravating circum­
stances which outweigh any mitigating

30Tlie District Court also relied upon Banks v. Horn, 
271 F.3d 527, 547-48 (3d Cir. 2001), which subsequently was 
reversed on other grounds, see Beard v. Banks, 542 U.S. 406 
(2004).



A p p .  6 7

circumstances," reads that both aggravating and 
mitigating circumstances must be found unani­
mously. There is nothing in the verdict form to 
clarify that the jury should apply the unanimity 
requirement to aggravating circumstances, but 
not to mitigating circumstances. See Mills, 486 
U.S. at 378-79 (recognizing absence of an explicit 
instruction to jury indicating how jury should 
behave if some, but not all, find a mitigating cir­
cumstance to apply to the defendant). The Penn­
sylvania Supreme Court did not evaluate whether 
this language would create a reasonable likelihood 
the jury had applied the form in violation of Mills. 
Furthermore, the jury instructions risked jury 
confusion about a unanimity requirement for both 
aggravating and mitigating circumstances. 
Throughout the jury instructions, the court 
repeatedly emphasized unanimity in close relation 
to its discussion of mitigating circumstances. The 
jury charge stated: "The Crimes Code provides 
that a 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 aggravat­
ing circumstances which outweigh any mitigating 
circumstances." The trial court reinforced the 
impression that unanimity had to be found for both 
aggravating and mitigating circumstances by 
stating, "remember again that your verdict must be 
unanimous. It cannot be reached by a majority 
vote or by any percentage. It must be the verdict of 
each and every one of you." The judge's charge did



A p p .  6 8

not instruct the jury to distinguish between miti­
gating and aggravating circumstances in their 
application of the unanimity requirement. This 
absence is notable because the trial court distin­
guished between the burdens of proof the jury 
should apply to mitigating and aggravating circum­
stances. The risk of confusion is higher where the 
court distinguishes between aggravating and miti­
gating circumstances on one ground, but not on any 
other. For these reasons, we conclude that the ver­
dict form together with the jury instructions were 
misleading as to whether unanimity was required 
in consideration of mitigating circumstances.

We have examined similar instructions in 
previous cases and found Mills violations. See 
Albrecht, 485 F.3d at 119-120 (finding a Mills 
violation, but vacating the District Court's order 
granting habeas relief after applying Teague); 
Banks, 271 F.3d at 547-48 (granting a writ of 
habeas corpus, after applying AEDPA standard of 
review, because jury instruction and verdict form 
caused Mills error), rev'd on other grounds by 
Beard v. Banks, 542 U.S. 406 (2004); Frey v. Ful- 
comer, 132 F.3d 916, 923-24 (3d Cir. 1997) ("con­
cluding] that the charge in this case was ambig­
uous, reasonably likely to confuse the jury, and 
thus in error" under Mills, without applying 
AEDPA standard of review). The Commonwealth 
contends the Pennsylvania Supreme Court could 
not have been unreasonable because we found no 
Mills violation in Zettlemoyer v. Fulcomer, 923 F.2d



A p p .  6 9

284 (3d Cir. 1991). See id. at 307-08 (finding no 
Mills violation where the instructions had a seven­
teen word separation between the unanimity clause 
and the mitigating circumstances clause). But 
Zettlemoyer is in tension with Frey and we will not 
engage in a sentence-level parsing of the language 
employed. Our analysis relies on United States 
Supreme Court precedent in finding a Mills viola­
tion.

We conclude the Pennsylvania Supreme 
Court's decision was objectively unreasonable 
under the dictates of Mills and Boyde. The jury 
instructions and the verdict form created a reason­
able likelihood that the jury believed it was pre­
cluded from finding a mitigating circumstance that 
had not been unanimously agreed upon. Accord­
ingly, we will affirm the District Court's grant of 
relief on this claim.

V L I .

For the foregoing reasons, we will affirm the 
District Court's judgment, which granted a writ of 
habeas corpus as to the Mills sentencing phase 
claim, but denied the petition for the balance of the 
claims asserted. As the District Court noted, the 
"Commonwealth of Pennsylvania may conduct a 
new sentencing hearing in a manner consistent 
with this opinion within 180 days of the Order 
accompanying this [opinion], during which period 
the execution of the writ of habeas corpus will be



A p p .  7 0

stayed, or shall sentence [Abu-Jamal] to life impris­
onment." Abu-Jamal, 2001 WL 1609690, at *130.

k k k k



App. 71 

(EXCERPT)

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT 

OF PENNSYLVANIA

MUMIA ABU-JAMAL, : CIVIL ACTION
Petitioner, :

v. :

MARTIN HORN, Commissioner, :
Pennsylvania Department of : NO. 99-5089 
Corrections, ET AL., :

Respondents. :

Memorandum and Order

YOHN, J. December 18, 2001

k k k k

III.25 CONSTITUTIONAL DEFICIENCIES IN
THE VERDICT FORM AND JURY CHARGE 
SUGGESTED THAT A FINDING OF MITI­
GATING CIRCUMSTANCES REQUIRED 
UNANIMOUS ACTION IN VIOLATION OF 
PETITIONER'S RIGHTS UNDER THE 8TH 
AND 14TH AMENDMENTS.



A. Allegations in Support of Claim

Petitioner claims that the appearance of the 
verdict form unconstitutionally suggested to the 
jury that it could not consider any particular miti­
gating circumstance unless the panel agreed unani­
mously as to its existence. See PI flf 596-602. He 
asserts that this confusion was compounded by the 
instructions that were intended to clarify the jury's 
role. Id. 602.

B. Violation of Federal Constitution, 
Law or Treaty

Petitioner argues that he was deprived of his 
right to a fair and reliable determination of punish­
ment in violation of the Eighth and Fourteenth 
Amendments to the United States Constitution.
See P14 at 91-92 (citing Mills v. Maryland, 486 
U.S. 367, 384 (1988); McKoy v. North Carolina, 494 
U.S. 433 (1990)). Specifically, he asserts that a 
parallel exists between the facts of his case and 
those at issue in Mills, where the Court found "a 
substantial probability that reasonable jurors, upon 
receiving the judge's instructions . . ., and in 
attempting to complete the verdict form as 
instructed, may well have thought they were pre­
cluded from considering any mitigating evidence 
unless all 12 jurors agreed on the existence of a 
particular such circumstance." Mills, 486 U.S. at 
384; see also Boyde v. California, 494 U.S. 370, 380 
(1990) (modifying the Mills standard for reviewing

A p p .  7 2



A p p .  7 3

jury instructions alleged to restrict a sentencer's 
consideration of relevant evidence by holding that 
the question properly asked by a reviewing court is 
"whether there is a reasonable likelihood that the 
jury [as opposed to a reasonable individual juror] 
has applied the challenged instruction in a way 
that prevents the consideration of constitutionally 
relevant evidence").80 Accordingly, petitioner 
claims, the penalty determination in his case was 
conducted in violation of Mills.

80Wliile the Third Circuit repeatedly has noted the 
applicability of the Boyde standard in assessing Mills claims, 
see Banks v. Horn, 2001 WL 1349369, at *16 (3d Cir. Oct.31, 
2001) and Frey v. Fulcomer, 132 F.3d 916, 921 (3d Cir. 1997), 
the court of appeals also has at least mentioned an alternate, 
arguably less stringent standard for determining whether 
Mills has been violated. See, e.g., Banks, 2001 WL 1349369, 
at *13 ("Proper application of Mills requires at the outset 
that the reviewing court examine the entire jury instruc­
tions, posing the 'critical question' whether a reasonable jury 
could have concluded . . . that unanimity was required to find 
a mitigating circumstance.") (emphasis added); Frey, 132 
F.3d at 923 ("[W]e must determine whether it is reasonably 
likely that the jury could have understood the charge to 
require unanimity in consideration of mitigating evidence.") 
(emphasis added). There is no dispute, however -  and 
indeed, both Frey and Banks make this point explicitly -  that 
the standard to be applied to Mills claims is that articulated 
in Boyde. Accordingly, I am concerned in evaluating peti­
tioner's Mills claim with whether there is "a reasonable like­
lihood that the jury has applied the challenged instruction in 
a way that prevents the consideration of constitutionally 
relevant evidence." Boyde, 494 U.S. at 380 (emphasis 
added).



A p p .  7 4

Respondents contend that petitioner's Mills 
argument was first raised in the 1995 PCRA hear­
ing, where it was advanced only as an ineffective 
assistance of counsel claim. This claim was merit­
less, they assert, because trial counsel could not 
have been ineffective "in not predicting the 1988 
Mills decision in 1982." R23 at 158 (citing Sistrunk 
v. Vaughn, 96 F.3d 666, 670-71 (3d Cir. 1996)). 
Respondents also allege that petitioner's claim fails 
on its merits. They posit that petitioner bases his 
argument solely on the jury verdict form, and does 
not focus at all on the instructions delivered by the 
trial court.81 R23 at 159. They contend that this in

81This, however, is inaccurate. Although the bulk of 
petitioner’s Mills claim is concerned with the effect of the 
verdict form, petitioner explicitly contends that "[t]he court's 
instructions, far from correcting the jury's misunderstanding 
based on the form, would have compounded that misunder­
standing." PI If 602. Accordingly, the effect of both the 
verdict sheet and the instructions have been raised by peti­
tioner. Moreover, as respondents themselves concede, in 
evaluating a claim pursuant to Mills v. Maryland, "the [ver­
dict] form cannot properly be viewed in isolation from the 
court's penalty phase instructions." R23 at 161.

Respondents also assert that Frey is unavailable to 
petitioner as a basis for relief because, under the AEDPA, 
habeas relief is available only to one in custody "pursuant to 
the judgment of a State court" only if that order is "contrary 
to, or an unreasonable violation of clearly established Fed­
eral law as determined by the Supreme Court of the United 
States." R23 at 163 (quoting 28 U.S.C. § 2254). They assert

(continued...)



A p p .  7 5

itself distinguishes petitioner's argument from that 
advanced successfully in Frey v. Fulcomer. See R23 
at 162 (citing Frey, 132 F.3d 916, 923 (3d Cir.
1997)). Nonetheless, they assert that the jury 
explicitly was instructed that unanimity was 
required only if a particular aggravating circum­
stance was found to exist, or if no mitigating cir­
cumstances were found to exist. See id. They 
allege that the trial court's instructions did not 
indicate the need for unanimity in order to find any 
particular mitigating circumstance. See id.

Respondents also argue that the verdict form 
itself contained no indication that unanimity was a 
necessary prerequisite to the jury finding the exis­
tence of mitigating circumstances, and that it did 
not in any way contradict the trial court's clear 
instruction that such a finding need not be 81

81(...continued)
that because Frey is a decision of the Third Circuit, it does 
not qualify under the AEDPA standard. This contention, 
however, is incorrect because Frey does not purport itself to 
be a basis for relief independent of Mills. Rather it simply is 
an application of Mills, with the holding of the Supreme 
Court being the legal basis for relief. It is indisputable that I 
may look to Frey -  or to any other decision of the court of 
appeals -  as an authoritative interpretation of the Supreme 
Court's holding. As stated by the Third Circuit in Matteo,
"we do not believe federal habeas courts are precluded from 
considering the decisions of the inferior federal courts when 
evaluating whether the state court's application of the law 
was reasonable." 171 F.3d at 890.



A p p .  7 6

unanimous. Respondents rely on the Third Cir­
cuit's holding in Zettlemoyer u. Fulcomer, 923 F.2d 
284 (3d Cir. 1991), a case they denote as factually 
apposite the instant matter, as support for their 
conclusion that '"[n]either the court nor the verdict 
sheet stated that the jury could weigh only those 
mitigating circumstances which it found unani­
mously." R23 at 161 (quoting Zettlemoyer, 923 F.2d 
at 308).

Petitioner did not raise the Mills issue at 
trial (Mills not having been decided), or on direct 
appeal. He did raise it in his PCRA action. How­
ever, the PCRA court found that because petitioner 
had failed previously to raise this claim, it was 
waived. PCRA Op. C.L. If 171. As such, the court 
concluded that Mills could not form the basis for 
post-conviction rehef. See id. (citing 42 Pa.C.S. § 
9543(a)(3)). In any event, noting that no evidence 
had been offered on the issue, the PCRA court went 
on to consider petitioner's Mills claim on its merits 
and found no constitutional violation, reasoning 
that similar verdict forms and instructions had 
been upheld by the Third Circuit in Zettlemoyer 
and by the Pennsylvania Supreme Court in several 
cases. See id. f 172-73 (citations omitted).

In affirming the PCRA court's decision, the 
Pennsylvania Supreme Court also noted that peti­
tioner had offered no evidence in support of this 
claim at the PCRA hearing. See PCRA Appeal Op. 
at 119. Moreover, the court distinguished Mills on



A p p .  7 7

the ground that the Mills verdict sheet, unlike that 
in petitioner's case, used the term "unanimously" in 
the context of both aggravating and mitigating 
circumstances. See id. The state supreme court 
further stressed that the unanimity requirement in 
petitioner's case was found only on page 1 of the 
verdict slip, whereas the mitigating circumstances 
were listed on page 3. See id. Additionally, the 
court found that the requirement that all twelve 
jurors sign the third page of the verdict slip was “of 
no moment since those signature lines naturally 
appear at the conclusion of the form and have no 
explicit correlation to the check list of mitigating 
circumstances." Id. The court therefore concluded 
that the structure of the form did not lead the 
jurors to beheve that they must agree unanimously 
as to the existence of mitigating evidence before 
such factors could be considered. See id.

The Pennsylvania Supreme Court identified 
the correct federal law as determined by the 
Supreme Court of the United States, i.e., the Mills 
decision. As such, the state supreme court did not 
"apply a rule that contradicts the governing law set 
forth" by the Supreme Court. See Terry Williams, 
529 U.S. at 405. The issue, then, is whether there 
was an unreasonable application of Mills in peti­
tioner's case.82

82Indeed, it is important to reiterate here that the
(continued...)



A p p .  7 8

82(... continued)
standards under which petitioner's Mills claim must be 
evaluated are those set forth in the AEDPA. This is to be 
contrasted with the Third Circuit's analysis in Frey, which 
employed pre-AEDPA standards in determining whether a 
violation of Mills had been effected in that case. Therefore, 
habeas relief will not be warranted pursuant to Mills if it is 
merely the case that, had I evaluated petitioner's Mills claim 
ab initio, I would have found it to be meritorious. See Mat- 
teo, 171 F.3d at 889. Put differently, a significant degree of 
deference is due the state supreme court's application of 
federal law. Instead, if petitioner is to be granted a writ of 
habeas corpus pursuant to this claim, it must necessarily be 
the case that the Pennsylvania Supreme Court's determina­
tion Mills had not been transgressed was "contrary to," or 
"involved an unreasonable application of' the United States 
Supreme Court's decision in that case. See 28 U.S.C. 
2254(d)(1); Terry Williams, 529 U.S. at 405.

However, given, that the propriety of habeas relief 
based on this claim turns on the application of law (i.e. Mills) 
to facts, and that the facts of this case are materially dis­
tinguishable from those at issue in Mills — for example, the 
language employed by the verdict form and by the trial court 
in instructing the jury in petitioner's case diverges from that 
at issue in Mills -  the "contrary to" standard for relief is 
inapplicable here. See Terry Williams, 529 U.S. at 406 ("[A] 
run-of-the-mill state-court decision applying the correct legal 
rule from our cases to the facts of a prisoner’s case would not 
fit comfortably within § 2254(d)(l)'s 'contrary to' clause."). 
Accordingly, the court will inquire whether the Pennsylvania 
Supreme Court, in denying petitioner's Mills claim, applied 
unreasonably that holding.



A p p .  7 9

C. "Contrary to" or "Unreasonable
Application of' Clearly Established 
Federal Law

Preliminarily, this claim is properly before 
the court. Although the Commonwealth urges that 
petitioner raised the Mills issue only by way of a 
claim alleging ineffective assistance of counsel, 
both the PCRA court and the Pennsylvania 
Supreme Court indicated that the Mills claim was 
before them on its merits.83 The PCRA court spe­
cifically stated that "[pjetitioner claims the verdict 
form in this case violated the rule in the later 
decided84 case of Mills v. Maryland, 486 U.S. 367

83While the PCRA court, as stated, indicated the 
applicability of a state law procedural bar to petitioner's 
Mills claim, nothing in its discussion of this claim supports 
the Commonwealth's position that petitioner did not advance 
the Mills issue on its merits. Quite the contrary, it affirma­
tively indicated that petitioner had done so. See PCRA Op. 
C.L. f  172.

84Although Mills, handed down on June 6, 1988, was 
decided after petitioner was sentenced to death, it nonethe­
less antedated the finality of petitioner's conviction, which 
was registered on October 1, 1990, when the United States 
Supreme Court denied his petition for a writ of certiorari.
See, e.g., Gray v. Netherlands, 518 U.S. 152, 180 (1996)
(noting that a conviction becomes final upon the United 
States Supreme Court's denial of a writ of certiorari on a 
defendant's direct appeal). Accordingly, no retroactivity 
analysis is mandated pursuant to Teague v. Lane, 489 U.S.

(continued...)



A p p .  8 0

(1988)." PCRA Op. C.L. If 172; see also PCRA 
Appeal Op. at 119 ("Appellant. . . submits that the 
penalty phase verdict slip was constitutionally 
defective pursuant to the dictates of Mills v. Mary­
land . . . ."). Because the claim thus was fairly 
presented to the state courts, the exhaustion 
requirement is satisfied. See Amend. St. PCRA 
Pet. Tff 149-50; St. PCRA Mem, at 154-60. Because 
it also was adjudicated on the merits by the state 
courts, see PCRA Op. C.L. Tff 171-73; PCRA Appeal 
Op. at 119, it is subject to the strictures of §
2254(d).

Mills and Its Application Within the Third 
Circuit

In Mills, the petitioner argued that Mary­
land's capital sentencing scheme, as explained to 
the jury by the court's instruction and as imple­
mented by the verdict form, was unconstitutional. 
This was so, he contended, because the verdict 
sheet and jury charge conveyed to the jury the false 
impression that unanimity was required if any 84

84(... continued)
288, 299-301(1989). See Matteo, 171 F.3d at 902 ("If the 
petitioner either seeks relief on the basis of a 'new rule' (i.e 
a decision issued after the conviction became final) or seeks 
relief that would require the habeas court to announce (and 
retroactively apply) a new rule, Teague sharply restricts the 
habeas court's review."). The same can be said of Boyde v. 
California, decided on March 5, 1990.



A p p .  8 1

given mitigating circumstance was to be found to 
exist, and thus considered by the panel in its sen­
tencing determination. See 486 U.S. at 375-76. 
The Court agreed, holding that although it was 
unable to determine with certainty what the jury 
actually believed, there was a "substantial prob­
ability that reasonable jurors," upon considering 
the verdict form and the instruction, would have 
concluded that a mitigating circumstance which 
had been found to exist by less than a unanimous 
jury could not be considered.85 486 U.S. at 384.

8BThis impression was created specifically by the com­
bined effect of the jury charge and verdict form. The verdict 
sheet, as explained by the judge's instructions, was tripar­
tite. Section I pertained to aggravating circumstances, and 
in explaining the jury's responsibilities vis-a-vis this section, 
the trial court stated: "[Y]ou must consider whether the 
aggravating circumstance . . . has been proven beyond a 
reasonable doubt. If you unanimously conclude that it has 
been so proven, you should answer that question yes. If you 
are not so satisfied, then of course you must answer no."
Mills, 486 U.S. at 378 (emphasis original).

Section II concerned mitigating circumstances. That 
section of the form featured identical language, except that a 
preponderance of the evidence standard was articulated for 
the determination of the existence of mitigating circum­
stances. Specifically, it read: "Based upon the evidence we 
unanimously find that each of the following mitigating cir­
cumstances which is marked 'yes' has been proven to exist by 
a preponderance of the evidence and each mitigating circum­
stance marked 'no' has not been proven by a preponderance

(continued...)



A p p .  8 2

8B(...continued)
of the evidence . . . Mills, 486 U.S, at 387. The jury again 
was instructed to mark each answer "yes" or "no." In 
reviewing the impression created by the verdict form and 
this instruction, the Court found that "[although it was clear 
that the jury could not mark 'yes' in any box without unani­
mity, nothing the judge said dispelled the probable inference 
that 'no' is the opposite of 'yes,' and therefore the appropriate 
answer to reflect an inability to answer a question in the 
affirmative." Id. at 378. Put differently, just as the jury was 
instructed to indicate the absence of an aggravating circum­
stance if they were unable to agree to its existence, they 
implicitly were directed to follow this same procedure in the 
context of mitigating circumstances. However, the Court 
proceeded to point out that "[n]o instruction was given indi­
cating what the jury should do if some but not all of the jur­
ors were willing to recognize something about petitioner . . . 
as a mitigating factor." Id. at 379.

Section III was the balancing section; this was the 
place in which those aggravating circumstances found in 
Section I were to he weighed against the mitigating cir­
cumstances found in Section II. As the Court stated, how­
ever, "Section III instructed the jury to weigh only those 
mitigating circumstances marked 'yes' in Section II 
Accordingly, the Court found that

A jury following the instructions set out in the 
verdict form could be "precluded from consid­
ering, as a mitigating factor, [an] aspect of a 
defendant's character or record [or a] circum- 
stanc[e] of the offense that the defendant 
proffer[ed] as a basis for a sentence less than 
death," if even a single juror adhered to the

(continued...)



A p p .  8 3

This, the Court found, violated the constitutional 
rule announced in Lockett v. Ohio and applied in 
Eddings v. Oklahoma that in a capital case "the 
sentencer [may] not be precluded from weighing, as 
a mitigating factor, any aspect of a defendant's 
character or record and any of the circumstances of 
the offense that the defendant proffers as a basis 
for a sentence less than death." Eddings, 455 U.S. 
104, 110 (1982) (quoting Lockett, 438 U.S. 586, 604 
(1978)) (emphasis original), quoted in Mills, 486 
U.S. at 374. As explained by the Third Circuit, 
"[t]he source of this preclusion is irrelevant; 
whether its source is statutory . . ., the sentencing 
court . . ., or an evidentiary ruling . . ., the result is 
the same." Frey, 132 F.3d at 920. Indeed, where a 
jury returns a sentence of death after having been 
prevented from considering relevant mitigating evi­
dence, that sentence must be invalidated.

As alluded to above, Mills repeatedly has 
been applied in this circuit. In Zettlemoyer, our 
Court of Appeals evaluated a jury charge that read, 
in pertinent part, as follows: * 1

8B(...continued)
view that such a factor should not be so con­
sidered.

486 U.S. at 380 (quoting Skipper v. South Carolina, 476 U.S.
1, 4 (1986)).



A p p .  8 4

The verdict, of course, must be unani­
mous. Again, if you find unanimously, 
beyond a reasonable doubt, the 
aggravating circumstance that I have 
mentioned . . . and no mitigating cir­
cumstances or if you find that the 
aggravating circumstance which I 
mentioned to you outweighs any miti­
gating circumstance you find, your 
verdict must be the death penalty. If, 
on the other hand, you find that the 
Commonwealth has not proven an 
aggravating circumstance beyond a 
reasonable doubt or if they have, that 
the mitigating circumstances out- 
weight [sic.] the aggravating circum­
stances, then you must bring in a 
verdict of fife imprisonment.

Under the law . . . you are obligated by 
your oath of office to fix the penalty at 
death if you unanimously agree and 
find beyond a reasonable doubt that 
there is an aggravating circumstances 
[sic.] and either no mitigating circum­
stance or that the aggravating cir­
cumstance outweighs any mitigating 
circumstances.

923 F.2d at 307-08.



A p p .  8 5

In holding this charge to be constitutionally 
permissible under Mills, the court of appeals 
engaged in a sentence-level parsing of the language 
employed. It especially was interested in the 
phrase "if you unanimously agree and find," con­
tained in the second stanza above. The words 
"agree and" were of particular import because they 
served as a linguistic buffer between the unanimity 
requirement and the enterprise of determining the 
existence of mitigating circumstances. 923 F.3d at 
308. Accordingly, the court found that "the word 
'unanimously' in the latter part of the charge mod­
ified only the word 'agree.'" Frey, 132 F.3d at 922 
(citing Zettlemoyer, 923 F.2d at 308). The effect of 
this language was that "the [Zettlemoyer] instruc­
tion was reasonably likely to have been understood 
by the jury to have meant something akin to: you 
must fix the penalty at death if you unanimously 
agree to the ultimate conclusion that either there is 
an aggravating circumstance and no mitigating cir­
cumstances or that the aggravating circumstance 
outweighs any mitigating circumstances." Id.
This, of course, is distinguishable from a require­
ment that the penultimate conclusion as to the 
existence of a particular mitigating circumstance 
be the product of unanimous assent.

The Zettlemoyer instruction also included 
other language that confirmed its constitutional 
validity. For example, the segment of the instruc­
tion set forth above was repeated later in the 
charge, but in this second articulation the word



A p p .  8 6

"unanimously" was not employed. See Frey, 132 
F.3d at 922 (highlighting this aspect of the Zettle- 
moyer charge). Moreover, in Frey the court found it 
significant that in this second repetition the Zet- 
tlemoyer charge "refer[ed] to aggravating circum­
stances outweighing 'any mitigating circumstance 
you may find.'" 132 F.3d at 922. Upon considering 
these additional interpretive indicia in conjunction 
with the linguistic point concerning the phrase 
"agree and find," the Zettlemoyer court concluded 
that the instruction in that case did not create a 
reasonable likelihood that the jury believed that 
unanimity was a prerequisite for finding any par­
ticular mitigating circumstance.

The Zettlemoyer court further held that the 
verdict form in that case also did not create such an 
impression. The form read:

(1) We the jury unanimously sen­
tence the defendant to: ___
death___life imprisonment.

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

We the jury have found unanimously:

___at least one aggravating
circumstance and no mitigating 
circumstance. The aggravating 
circumstance is _______ ______ .



A p p .  8 7

___the aggravating circumstance out­
weighs any mitigating circumstances. 
The aggravating circumstance is

923 F.2d at 308. This sheet, the court held, "did 
not limit the mitigating circumstances that the jury 
could consider." 923 F.2d at 308. The court spe­
cifically focused upon the fact that "[alt]hough the 
jury was obliged to specify the aggravating circum­
stance it found, it had no such duty with respect to 
mitigating circumstances . . . ." Id. This "sug­
gested] that consideration of mitigating circum­
stances was broad and unrestricted," id., and 
accordingly that the jury did not believe itself to be 
limited by the need for unanimity.

After thus considering both the verdict sheet 
and the instructions that accompanied it, the Zet- 
tlemoyer court concluded that "[n]either the court 
nor the verdict sheet stated that the jury must 
unanimously find the existence of particular miti­
gating circumstances or that the jury could weigh 
only those mitigating circumstances which it found 
unanimously. Thus Mills is clearly distinguish­
able." 923 F.2d at 308.

The Third Circuit next revisited Mills in a 
meaningful way in Frey. At first glance, the opera­
tive facts in Frey appear to be virtually indistin­
guishable from those in Zettlemoyer. Indeed, the 
Frey court was candid in its recognition that "the



A p p .  8 8

verdict slip used in Zettlemoyer was substantially 
the same as the verdict slip used in the present 
case," 132 F.3d at 924, and that the instructions 
with which it was confronted were "similar in many 
respects to the charge at issue in Zettlem oyerId. 
at 922. Yet the court proceeded to make two points 
that are important from the perspective of the pres­
ent determination. First, it reaffirmed that, in 
general terms, the impression that unanimity is 
required is generated by the combined effect of the 
jury charge and the verdict sheet. Id. (citing Zettle­
moyer, 923 F.2d at 308 n.22). Accordingly, despite 
the similarities between the verdict forms, the Frey 
court held that "the discussion in Zettlemoyer 
regarding the propriety of the verdict slip is not 
controlling." 132 F.3d at 924. Second, and more 
importantly, the court held that although the Frey 
and Zettlemoyer charges were in many senses alike, 
the Frey instructions "differed significantly" from 
those evaluated in Zettlemoyer.

The court focused specifically on three 
aspects of the charge as creating the misimpression 
that all 12 jurors were obligated to agree as to the 
existence of any given mitigating circumstance. 
First, the Frey charge used the word "unanimously" 
"in close proximity to -  within seven words of -  the 
mitigating circumstances clause." 132 F.3d at 923 
(quoting this portion of the charge: "if the jury 
unanimously finds at least one aggravating circum­
stance and no mitigating circumstance . . ."). The



A p p .  8 9

effect of the temporal86 proximity of these two 
concepts was the creation of "one sound bite" in 
which the requirement of unanimity and the enter­
prise of finding mitigating circumstances, to which 
that requirement does not rightfully apply, were 
joined. Id. Second, whereas the Zettlemoyer 
instruction employed the language "agree and 
find," the Frey charge omitted the words "agree 
and," leaving the complete phrase to read "unani­
mously finds . . . See id. Accordingly it could not 
be said, as it was in Zettlemoyer, that "unani­
mously" modified only "agree." Indeed, there was 
no defensible linguistic construction of the Frey 
instructions apart from the one ultimately 
endorsed by the court -  the unanimity requirement 
pertained to the jury's task of determining the exis­
tence of mitigating circumstances. Third, other 
portions of the Frey instruction were more likely to 
heighten, rather than lessen, the panel's confusion. 
The court explained that" [u] nlike Zettlemoyer, 
where the court specifically instructed the jury that 
aggravating circumstances must be proven

86The term "temporal," as opposed to "spatial," is used 
here because the court's concern -  as it was in Frey -  is with 
the effect created by the instructions when spoken, not as 
written. See Frey, 132 F.3d at 923 (discussing the effect of 
the instructions on "the ear and . . . the mind"). Because the 
jury was presented with the charge auditorily, the degree to 
which the unanimity requirement and mitigating circum­
stances clause were presented in close proximity to each 
other is a matter of temporal, not spatial closeness.



A p p .  9 0

'unanimously, beyond a reasonable doubt,' the trial 
court here did not stress that the different burdens 
that attach to aggravating and mitigating circum­
stances also entail different unanimity require­
ments." Id. at 923-24. This, the court indicated, 
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.

Based on these important distinctions 
between the linguistically similar charges in Zet- 
tlemoyer and Frey, the Frey court determined — as 
the Mills court had -  that although it could not say 
with absolute certainty that the jury operated 
under the impression that unanimity was required 
to find a given mitigating circumstance, the 
instruction "create [d] a risk that the death penalty 
was imposed in spite of 'factors which may call for a 
less severe penalty.'" 132 F.3d at 924-25 (quoting 
Mills, 486 U.S. at 376). This risk was sufficient to 
require the vacatur of Frey's death sentence under 
the pre-AEDPA standards applied by the court of 
appeals in that case. See id.

The Third Circuit's decision in Banks v.
Horn,___F.3d___ , 2001 WL 1349369 (3d Cir. Oct.
31, 2001) -  a post-AEDPA case, like the one at 
bar — marks the court of appeals's most recent 
apphcation of Mills and virtually compels the result 
reached here. In Banks the court held that the 
Pennsylvania Supreme Court had applied Mills in



A p p .  9 1

an unreasonable fashion, and in so doing it again 
focused on both the jury instruction and the verdict 
sheet as sources of confusion over the unanimity 
requirement. It also addressed briefly the individ­
ual polling of the jurors as another potential source 
of confusion.

The Banks court commenced its analysis by 
examining the jury charge delivered by the trial 
court in that case, and by noting that the Pennsyl­
vania Supreme Court did not undertake the sort of 
analysis of this instruction required by Mills. The 
state supreme court had held that "because the 
instruction 'mirrors the language found in the 
death penalty statute of our Sentencing Code [that] 
has previously been reviewed by this court and 
determined not to violate Mills' Banks's claim was 
'without merit.'" Banks, 2001 WL 1349369, at *13 
(quoting Commonwealth v. Banks, 656 A.2d 467, 
470 (Pa. 1995)). The problem with this approach 
was that the state supreme court failed to analyze 
the likely effect of the charge on the panel, specifi­
cally "whether a reasonable jury could have con­
cluded from the instruction that unanimity was



A p p .  9 2

required to find a mitigating circumstance." Id.87 
(citing Mills, 486 U.S. at 370).

The court of appeals undertook this appro­
priate inquiry by juxtaposing the instructions 
delivered by the trial court in Banks with those 
received by the jury in Frey. This comparison 
demonstrated that the relevant instructions in 
those cases were nearly verbatim replicas of each 
other, with any differences being purely semantic. 
Accordingly, the court had little difficulty conclud­
ing that the concern of jury confusion generated by 
the Frey charge was equally present in Banks, and 
thus that the result in the former dictated an anal­
ogous holding in the latter. See id. at *15 ("The 
instructions are in themselves ambiguous, allowing 
for a jury to infer that the requirement of

87The Pennsylvania Supreme Court instead relied, on 
its own precedents in concluding that Banks's sentencing 
proceedings comported with Mills. Yet as indicated by the 
Third Circuit, the court's task in conducting a federal habeas 
review is "not to ensure the consistency of the Pennsylvania 
Supreme Court's application of its law, but, rather, to assure 
proper application of the United States Supreme Court 
teachings." 2001 WL 1349369, at *12. Accordingly, the court 
is guided in this determination by Mills itself, and further by 
those interpretations of that holding that are binding on this 
court; namely, those of our court of appeals. See, e.g., Banks, 
2001 WL 1349369, at *14 ("While . . . Frey does not control 
our holding here, nonetheless our reasoning there regarding 
the Mills imphcations of a very similar jury charge is instruc­
tive and applicable.").



A p p .  9 3

unanimity applies both to aggravating and miti­
gating circumstances. There is no way that a juror 
would understand that a mitigating circumstance 
could be considered by less than all jurors."). 
Furthermore, while the trial court in Banks did 
differentiate between the "beyond a reasonable 
doubt" and "preponderance of the evidence" stan­
dards of proof that apphed to aggravating and 
mitigating circumstances respectively, it notably 
failed to similarly distinguish between these con­
texts regarding the applicability of the unanimity 
requirement. As it had in Frey, see 132 F.3d at 
923-24, the court of appeals found this aspect of the 
Banks charge to be indicative of a Mills violation. 
See 2001 WL 1349369, at *16.

As for the verdict slip in Banks, the Third 
Circuit found that the Pennsylvania Supreme 
Court again failed to undertake the analysis 
required by Mills. Specifically, the state supreme 
court did not assess whether "the need for a unani­
mous finding of mitigating circumstances is one 
that 'a reasonable jury could have drawn from . . . 
the verdict form employed.'" 2001 WL 1349369, at 
*17 (quoting Mills, 486 U.S. at 375-76). After indi­
cating the impropriety of the state supreme court's 
approach, the court of appeals undertook a de novo 
analysis of the verdict sheet and determined that



A p p .  9 4

"the form does suggest the need for unanimity." Id. 
at *17 (emphasis original).88

88The verdict slip in Banks was analogous in struc­
ture to that at issue in Mills; both contained three sections, 
and in Banks each was presented on a separate page. The 
Banks form appeared as follows:

1. We the jury unanimously sentence the defendant 
in the above matter to

______Death
______Life Imprisonment

2. (To be completed if the Sentence is Death)
We the jury have found unanimously

______ At least one aggravating circumstance
and no mitigating circumstances.

The aggravated circumstance(s)(is)(are):
1. __ In the commission of the offense the

defendant knowingly created a grave 
risk of death to another person in 
addition to the victim of the offense.

2. __ The defendant has a significant
history of felony convictions involving 
the use or threat of violence to the 
person.

3. __ The defendant has been convicted of
another federal or state offense, 
committed either before or at the time 
of the offense at issue, for which a 
sentence of life imprisonment or death 
was imposable or the defendant was 
undergoing a sentence of life impris­
onment for any reason at the time of

(continued...)



A p p .  9 5

88(...continued)
the commission of the offense.

Or

______ One or more aggravating circum­
stances which outweigh any 
mitigating circumstance or 
circumstances.

The aggravated circumstance(s)(is)(are):
1. ___ In the commission of the offense the

defendant knowingly created a grave 
risk of death to another person in 
addition to the victim of the offense.

2. ___ The defendant has a significant history
of felony convictions involving the use 
or threat of violence to the person

3. ___ The defendant has been convicted of
another federal or state offense, com­
mitted either before or at the time of 
the offense at issue, for which a sen­
tence of life imprisonment or death 
was imposable or the defendant was 
undergoing a sentence of life imprison­
ment for any reason at the time of the 
commission of the offense.

The mitigating circumstance(s)(is)(are):
1. ___ The defendant was under the influence

of extreme mental or emotional dis­
turbance.

2. ___ The capacity of the defendant to
appreciate the criminality of his

(continued...)



A p p .  9 6

In reaching this conclusion, the court focused 
primarily on the lead-in language to the second 
question. Because that question opened with the 
phrase "[w]e the jury have found unanimously," the 
court determined, "[b]y implication, everything that 
follow[ed] was found unanimously." 2001 WL 
1349369, at *17. The court went on to explain that 
"[w]hat follow [ed was] a reference to both aggravat­
ing and to mitigating circumstances, with no addi­
tional language that would imply that there is a 
different standard for aggravating circumstances 
than there is for mitigating circumstances." Id.
The court specifically noted the absence of affirma­
tive language indicating that a mitigating circum­
stance could be found if only one juror believed it to 
exist. See id. at *18. These aspects of the verdict 
form, coupled with the jury charge, created a suffi­
cient likelihood that the jury was confused as to the 
need for unanimity in the context of mitigating cir­
cumstances so as to render the sentencing

88(...continued)
conduct or to conform his conduct to 
the requirements of law was substan­
tially impaired.

3. Any other mitigating matter concern­
ing the character or record of the 
defendant or the circumstances of his 
offense.

Banks, 2001 WL 1349369, at *17 (emphasis added).



A p p .  9 7

determination constitutionally defective under 
Mills.89 See id.

This Legal Background as Applied to the 
Instant Matter

As in Banks, the Pennsylvania Supreme 
Court failed in this case to "really apply [ ] the 
teachings of Mills." Banks, 2001 WL 1349369, at 
*12. Indeed, the deficiency in the state supreme 
court's analysis of petitioner's Mills claim was more 
significant than that which marked its considera­
tion in Banks. Whereas in Banks the court at least 
addressed the constitutional implications of the 
jury charge, it did not even address this issue in 
petitioner's case. Instead, the court proceeded as 
follows: it first indicated that the Mills claim was 
before it, and further recognized that in Mills the 
unconstitutional confusion was created by both the 
jury instructions and the verdict sheet. Abu- 
Jamal, 720 A.2d at 119. However, it then pro­
ceeded to evaluate only the verdict sheet, stating 
that "the crux of Appellant's argument on this point

89As indicated above, the court also addressed the 
effect of the jury poll that had been conducted in Banks. 
Specifically, it concluded its analysis of Banks's sentencing 
determination by noting that although the Pennsylvania 
Supreme Court had devoted a majority of its opinion in 
Banks to the issue fo the effect of the jury poll, this endeavor 
neither "add[ed] to or reduce[d] the confusion as to the Mills 
problem___ " Banks, 2001 WL 1349369, at *18.



A p p .  9 8

is that the structure of the form was such that the 
jury would be led to believe that unanimity was 
required in order to find, and thus consider, a miti­
gating circumstance."90 Id. This repeats, albeit in 
starker form, the analytical error identified in 
Banks, in which the Third Circuit indicated that 
"[pjroper application of Mills requires at the outset 
that the reviewing court examine the entire jury 
instructions," and pose the '"critical question"' of 
whether the charge created a reasonable likelihood 
that the jury applied the instruction in a way that 
prevented the consideration of constitutionally rele­
vant evidence. Banks, 2001 WL 1349369, at *13 
(quoting Mills, 486 U.S. at 370); see also Boyde, 494 
U.S. at 380. Clearly the failure to even evaluate 
the possibility that the jury charge confused the 
jury as to the existence of a unanimity requirement 
is a paradigmatic example of the "undertaking of] 
a different inquiry from that required under Mills." 
Id. at *17.

90As indicated supra, the Pennsylvania Supreme 
Court was not incorrect when it indicated that the crux of 
petitioner's Mills claim is that the verdict form was mislead­
ing. However, by asserting that "[t]he court's instructions 
. . . would have compounded that misunderstanding," PI 
f  602, petitioner has placed in issue the effect of both the 
verdict sheet and the instructions in this case. The state 
supreme court accordingly was incorrect insofar as it deter­
mined that the effect of the jury charge was not raised at all 
by petitioner.



A p p .  9 9

Additionally, the Pennsylvania Supreme 
Court never mentioned, much less did it apply, the 
Boyde standard for evaluating claims pursuant to 
Mills v. Maryland. See Abu-Jamal, 720 A.2d at 
119. Although the state supreme court did articu­
late the standard set forth in Mills itself — namely 
whether "the jury instructions, together with the 
verdict form, created a substantial probability that 
reasonable jurors may have believed that they were 
barred from considering mitigating evidence unless 
all twelve jurors agreed on the existence of any 
given circumstance," id. -  this is significantly dif­
ferent from the standard articulated in Boyde. See 
Frey, 132 F.3d at 921 (distinguishing between the 
Mills and Boyde standards).

The jury charge in petitioner's case featured 
language that was equally, if not more, problematic 
than those at issue in Banks and Frey. The 
instruction began:

Members of the jury, you must now 
decide whether the defendant is to be sen­
tenced to death or life imprisonment. The 
sentence will depend upon your findings con­
cerning aggravating and mitigating circum­
stances. The crimes code provides that a 
verdict must be a sentence of death if the 
jury unanimously finds at least one aggra­
vating circumstance and no mitigating cir­
cumstance, or if the jury unanimously finds 
one or more aggravating circumstances



A p p .  1 0 0

which outweigh any mitigating circum­
stances. The verdict must be a sentence of 
life imprisonment in all other cases.

N.T. 7/3/82 at 90. The above portion of the charge 
is literally identical to that delivered in Frey, and 
functionally indistinguishable from the equivalent 
portion of the Banks instruction.

The court next discussed the status of a 
Philadelphia police officer as a "peace officer" 
within the meaning of aggravating circumstance 
"A," pertaining to the killing of a "fireman, peace 
officer or public servant. . . who was killed in the 
performance of his duties." First Degree Murder 
Penalty Determination Sheet, Commonwealth v. 
Abu-Jamal, No. 1358 Jan. Term, 1982 (Phila. Ct. 
Com. Pis. July 3, 1982) at 2. It then continued:

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. A preponderance of the 
evidence exists where one side is more 
believable than the other side. All the evi­
dence from both sides, including the evidence 
you heard earlier during the trial-in-chief as 
to aggravating or mitigating circumstances is 
important and proper for you to consider.



A p p .  1 0 1

You should not decide out of any feelings of 
vengeance or sympathy or bias towards the 
defendant.

Now, the verdict is for you, members of 
the jury. Remember and consider all of the 
evidence giving it the weight to which it is 
entitled. Remember that you are not merely 
recommending a punishment. The verdict 
you return will actually fix the punishment 
at death or life imprisonment. Remember 
again that your verdict must be unanimous.
It cannot be reached by a majority vote or by 
any percentage. It must be the verdict of 
each and every one of you.

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

N.T. 7/3/82 at 91-92.

The court then concluded its charge by 
informing the jury that its verdict would be 
recorded on a verdict sheet, and by reading the 
sheet aloud. In explaining the procedure properly 
followed in filling out the slip, the court indicated



A p p .  1 0 2

that in the event the panel were to find (as it did 
not) the existence of at least one aggravating cir­
cumstance and no mitigating circumstance, it 
would find on page 2 of the form "all the aggravat­
ing circumstances. . . . 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 
." Id. at 94. Were the jury to find instead one or 
more aggravating circumstances which outweigh 
any existent mitigating circumstances (as it did), 
the court explained, it should similarly

indicate which [aggravating circum­
stances] they were and put it on the front 
here, like a small number or (A) or (B) or (C) 
or whatever one you might find.

And then, underneath that, [the form 
states]: "The mitigating circumstances(s) 
is/are —"

And those 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 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 and date it



A p p .  1 0 3

down on the bottom, the date that you reach 
the verdict, and return it to the Court with 
this verdict report.

Id. at 94-95.

There are numerous aspects of this charge 
that created a reasonable likelihood that the jury 
believed that it was obligated to consider only miti­
gating circumstances that were found to exist by a 
unanimous panel. First, unlike the Zettlemoyer 
instruction, nowhere in the Jamal charge are the 
words "agree and" found between the words "unani­
mously" and "find." Instead, the phrase "unani­
mously finds" was repeated four times by the trial 
court in this case. Compare, e.g., Zettlemoyer, 923 
F.3d at 307-08 (restating the instruction that "you 
are obligated by your oath of office to fix the pen­
alty at death if you unanimously agree and find 
beyond a reasonable doubt that there is an aggra­
vating circumstances (sic) and either no mitigating 
circumstance or that the aggravating circumstance 
outweighs any mitigating circumstances") (empha­
sis added) with N.T. 7/3/82 at 90 ("The crimes code 
provides that a verdict must be a sentence of death 
if the jury unanimously finds at least one aggravat­
ing circumstance and no mitigating circumstance, 
or if the jury unanimously finds one or more aggra­
vating circumstances which outweigh any mitigat­
ing circumstances.") (emphasis added). Accord­
ingly, the only linguistically plausible conclusion is 
that the word "unanimously" modified "find" in the



A p p .  1 0 4

Jamal instructions. As indicated above, when 
confronted with precisely this language the Banks 
and Frey courts found such to be telling evidence of 
a Mills violation. See Banks, 2001 WL 1349369, at 
*15 (adopting by reference the discussion of this 
language contained in Frey); Frey, 132 F.3d at 923.

Second, in Zettlemoyer, the instruction 
regarding the two conditions under which the 
death penalty could be imposed (i.e. were the jury 
to find an aggravating circumstance and no miti­
gating circumstance, or that the existent aggra­
vating circumstances outweighed the mitigating 
circumstances) was repeated twice, the first time 
articulating the unanimity requirement and the 
second time with this requirement omitted. The 
court of appeals found that this second, error-free 
articulation lessened the likelihood of juror confu­
sion. In Jamal, by contrast, while this instruction 
was repeated, its second articulation employed the 
unanimity language just as the first had. See N.T. 
7/3/82 at 92 ("Remember that your verdict must be 
a sentence of death if you unanimously find at least 
one aggravating circumstance and no mitigating 
circumstances. Or, if you unanimously find one or 
more aggravating circumstances which outweigh 
any mitigating circumstances.") (emphasis added). 
Rather than alleviating the confusing effect of the 
first articulation, then, this second instruction 
reinforced it.



A p p .  1 0 5

Third, because the portion of the Jamal 
charge in which the unanimity requirement was 
mentioned in close proximity to the mitigating 
circumstances clause was identical to its counter­
parts in Frey and Banks, the "sound bite" created 
was precisely the same. See N.T. 7/3/82 at 90 (". . . 
if the jury unanimously finds at least one aggravat­
ing circumstance and no mitigating circumstance 
..."); Banks, 2001 WL 1349369, at *14 (". . . if the 
jury unanimously finds at least one aggravating 
circumstance and no mitigating circumstances 
..."); Frey, 132 F.3d at 923 (". . . if the jury unani­
mously finds at least one aggravating circumstance 
and no mitigating circumstance . . Indeed, as in 
Banks and Frey, the Jamal instructions featured 
the articulation of the unanimity requirement 
within seven words of the mitigating circumstances 
clause. Notably, the Banks court's reaffirmation of 
the concern expressed in Frey regarding the place­
ment of the mitigating circumstances clause in 
close proximity to language indicating the need for 
unanimity reinforces that such constitutes strong 
evidence of a Mills violation. See 2001 WL 
1349369, at *14-15. Moreover, given the subse­
quent repetition of this language in the charge in 
this case, see N.T. 7/3/82 at 92, petitioner's jury, 
unlike the panel in Frey, was subjected to this 
sound bite twice.

Fourth, while the charge in this case dis­
tinguished between the burdens of proof associated 
with aggravating and mitigating circumstances, as



A p p .  1 0 6

in Banks the court did not indicate that different 
unanimity requirements also apply to these differ­
ent types of circumstances. See 2001 WL 1349369, 
at *16 ("A reasonable juror could readily infer from 
the fact that the distinctions between the burden of 
proof were explained, but no mention was made of 
a distinction between a requirement of unanimity 
for a finding of aggravating circumstances and the 
requirement for mitigating circumstances, that the 
same requirement of unanimity applied."); see also 
Frey, 132 F.3d at 924 (noting that the jury charge 
in that case did not "stress that the different bur­
dens . . . also entail different unanimity require­
ments."). In Zettlemoyer, by contrast, the court 
indicated to the jury that to find an aggravating 
circumstance, it had to do so "unanimously, beyond 
a reasonable doubt." It made no equivalent state­
ment regarding mitigating circumstances. No such 
discrepancy was contained within the Jamal 
charge, and thus, as indicated in Frey, " [i]t is what 
is not said here that is significant." Id. at 923.

Indeed, in petitioner's case the jury's tasks of 
finding aggravating and mitigating circumstances 
generally were presented as being equivalent, the 
burden of proof distinction aside. This is further 
evidenced by the fact that, in explaining the verdict 
form, the court stated:

Page 2 lists all the aggravating cir­
cumstances. They go from small letter (A) to 
small letter (J). Whichever one of these that



A p p . 1 0 7

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.

[The] 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.

N.T. 7/3/82 at 94-95. As contrasted with the differ­
ential characterization of the jury's responsibilities 
in Zettlemoyer, the like treatment afforded the 
jury's tasks in this case increases rather than 
decreases the likelihood that the jury believed the 
unanimity requirement that applied to aggravating 
circumstances to be equally applicable in the con­
text of mitigating circumstances.

Fifth, the need for unanimity in petitioner's 
case was reinforced by the following instruction: 
"Remember again that your verdict must be unani­
mous. It cannot be reached by a majority vote or by 
any percentage. It must be the verdict of each and 
every one of you ." N.T. 7/3/82 at 92. This lan­
guage specifically was identified in Banks as creat­
ing "'a reasonable likelihood that the jury has 
applied the challenged instruction in a way that 
prevents the consideration of constitutionally



A p p .  1 0 8

relevant evidence.'" 2001 WL 1349369, at *16 
(quoting Boyde, 494 U.S. at 380). Moreover, this 
statement preceded immediately the second repe­
tition of the above-described sound bite in which 
the unanimity requirement was articulated within 
seven words of the mitigating circumstances 
clause. This further indicates that there is a rea­
sonable likelihood that the jury believed that this 
specific articulation of the unanimity requirement 
pertained to its task of finding mitigating circum­
stances.

Sixth, as indicated above, the charge in peti­
tioner's case ended with the following language:

[The] 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 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 and date it down on the 
bottom, the date that you reach the verdict, 
and return it to the Court with this verdict 
report.

N.T. 7/3/82 at 95 (emphasis added). This aspect of 
the charge, like some of those discussed previously, 
places in the closest temporal proximity the task of



A p p .  1 0 9

finding the existence of mitigating circumstances 
and the requirement that each juror indicate his or 
her agreement with the findings of the jury. The 
Pennsylvania Supreme Court addressed the place­
ment of the signature fines at the end of the third 
page of the verdict sheet, on which the mitigating 
circumstances were fisted, and held that this was 
"of no moment since those signature fines naturally 
appear at the conclusion of the form and have no 
explicit correlation to the checklist of the mitigat­
ing circumstances." Abu-Jamal, 720 A.2d at 119. 
Whether or not this is so, the state supreme court's 
reasoning addresses the verdict form itself, not the 
court's explanation of that form. I express no opin­
ion regarding the impression created by the 
appearance of 12 separate signature fines on the 
same page as the jury is required to indicate which, 
if any, mitigating circumstances it finds to exist. 
However, when articulated verbally in the court's 
charge, the proximity of these aspects of the verdict 
sheet do create at least an implicit correlation of 
the sort to which the state supreme court referred. 
Indeed, this aspect of the instructions indicates 
that there is a reasonable likelihood that the jury 
believed that it was precluded from considering 
mitigating circumstances that were not unani­
mously found to exist.

Seventh, the instruction in petitioner's case 
included no affirmative language indicating that a 
given mitigating circumstance could be considered 
by the panel even if it was not unanimously found



A p p .  1 1 0

to exist. Like the preceding six factors, the absence 
of such language also is indicative of a Mills viola­
tion. See Frey, 132 F.3d at 923 n.5; see also Banks, 
2001 WL 1349369, at *18 (so holding in the context 
of the verdict form).

As for the effect of the verdict sheet in peti­
tioner's case, such also was held by the Pennsylva­
nia Supreme Court not to violate Mills.91 Yet there 
is no need for a novel, in-depth analysis of this form 
because, in a determinative respect, the slip used

91In rejecting petitioner's argument regarding the 
verdict slip, the Pennsylvania Supreme Court essentially 
described the form, indicated the lack of printed instructions 
on its second and third pages, dismissed petitioner's conten­
tion regarding the presence of the 12 signature lines on the 
same page as the mitigating circumstances, and concluded 
that "[a]s such," no Mills violation was present. However, 
the court never addressed the effect of the lead-in language. 
Moreover, it never really engaged in any sort of detailed 
analysis of the likely perception by the jury of its task, as 
shaped by the verdict form. Accordingly, this analysis was 
inconsistent with that mandated by Mills. Because, contrary 
to the court’s ultimate determination, application of both the 
Boyde standard and the substantive holdings in Mills, Banks 
and Frey would have yielded the conclusion that the verdict 
form did create a reasonable likelihood that the jury con­
cluded that unanimity was required to find a particular miti­
gating circumstance, the state supreme court applied Mills 
unreasonably. See Matteo, 171 F.3d at 890.



A p p .  I l l

was identical to that employed in Banks,92 In both 
cases, the form first required the jury to indicate 
whether the punishment imposed was death or life 
imprisonment. If the space indicating death was 
marked, the jury was directed to proceed to the 
second section of the form where it was to indicate 
which aggravating and mitigating circumstances it 
had found to exist. Upon examining this section of 
the form, however, the Banks court found "it only 
reasonable to conclude that the form itself [was] at

92In both cases, as well as in Mills, the verdict slip 
was comprised of three sections. In petitioner's case, as in 
Banks, each section occupied a different page. On the first 
page were two questions. The first was whether the punish­
ment was to be death or life imprisonment, and the second, 
to be answered only in the event of a death sentence, queried 
whether this sentence resulted from a finding of at least one 
aggravating circumstance and no mitigating circumstance, or 
a finding that the existent aggravating circumstances out­
weighed the existent mitigating circumstances. The second 
section, on page 2, was simply a fist of various aggravating 
circumstances, with a space next to each which was to be 
checked by the jury in the event that that particular circum­
stance was found to exist. The third section, on page 3, was 
the same as the second section, except that the fisted circum­
stances were mitigating, and underneath the fist were twelve 
signature fines and a date fine, to be filled in upon the com­
pletion of the sentencing determination.

Notably, the sheet differed significantly from that 
used in Zettlemoyer, where the verdict form lack a space in 
which the jury was to specify the mitigating circumstance(s) 
it found to exist.



A p p .  1 1 2

least confusing, and more likely suggestive, regard­
ing the need for unanimity as to mitigating circum­
stances." 2001 WL 1349369, at *17. This determi­
nation was a product of the lead-in language to this 
section, which read: "[w]e the jury have found 
unanimously." Banks, 2001 WL 1349369, at *17; 
see also First Degree Murder Penalty Determina­
tion Sheet, Commonwealth v. Abu-Jamal, No. 1358 
Jan. Term, 1982 (Phila Ct. Com. Pis. July 3, 1982) 
at 1 (featuring this same language). Specifically, 
the Banks court stated that because this unanimity 
language led into "the overarching second question 
. . . [b]y implication everything that follows was 
found unanimously. What follows is a reference 
both to aggravating and to mitigating circum­
stances, with no additional language that would 
imply that there is a different standard for aggra­
vating circumstances than there is for mitigating 
circumstances." 2001 WL 1349369, at *17. Accord­
ingly, it concluded that "the structure and form of 
the verdict slip itself r[an] afoul of the dictates of 
Mills." 2001 WL 1349369, at *18. This analysis 
applies with equal force to the verdict form in peti­
tioner's case, as no curative language of the sort 
described in Banks is found in the Jamal charge 
either. Accordingly, the incompatibility between 
the verdict sheet and the mandates of Mills that



A p p .  1 1 3

was found to exist in Banks is equally present 
here.93

To conclude, the jury charge and verdict form 
in this case created a reasonable likelihood that the 
jury believed that it was precluded from consider­
ing a mitigating circumstance that had not been 
found unanimously to exist. In the terms used by 
the Banks court, it is the case both that "the 
instructions are in themselves ambiguous, allowing 
for a jury to infer that the requirement of unani­
mity applies both to aggravating and mitigating 
circumstances," 2001 WL 1349369, at *16 and that 
"the structure and form of the verdict slip itself 
runs afoul of the dictates of Mills." Id. at *18. Yet 
the Pennsylvania Supreme Court failed even to 
address the Boyde standard or the consequence of 
the jury instructions in this case, much less to 
reach a reasonable conclusion regarding the effect 
of the Jamal charge, and compounded this error by 
unreasonably failing to perceive the probable 
impact of the verdict form on the jury's impression 
regarding the need for unanimity. Accordingly,

93As in Banks, the jurors were polled individually 
following the announcement of the verdict in this case. See 
N.T. 7/3/82 at 98-101. I find that this procedure was unre­
markable, and in no significant sense different from the poll­
ing that transpired in Banks. Accordingly, I conclude that 
the effect of the jury poll on the likelihood for juror confusion 
was negligible, as the Banks court found it to have been. See 
2001 WL 1349369, at *18.



A p p .  1 1 4

when considered in light of the Boyde standard, 
Mills, and the interpretations of Mills set forth in 
Frey and Banks, this court is compelled to conclude 
that the decision of the Pennsylvania Supreme 
Court in this case, "evaluated objectively and on 
the merits, resulted in an outcome that cannot rea­
sonably be justified under existing [United States] 
Supreme Court precedent." Matteo, 171 F.3d at 
890. Its decision was an objectively unreasonable 
application of federal law. By contrast, a reason­
able application of this precedent necessarily yields 
the conclusion that the jury charge and verdict 
form produced a "reasonable likelihood that the 
jury has applied the . . . instruction [and form] in a 
way that prevents the consideration of constitution­
ally relevant evidence." Boyde, 494 U.S. at 380. 
Accordingly, the petition will be granted as to this 
claim.

D. Unreasonable Determination 
of Facts in Light of Evidence 
Presented

Petitioner does not identify with specificity 
any findings of fact regarding this issue which are 
unreasonable in light of the evidence presented.



A p p .  1 1 5

E. Evidentiary Hearing

Although petitioner argues that an evi­
dentiary hearing is mandatory on this claim, this 
request is moot given the claim's disposition.94

•k ic it k

“ Petitioner's claims 26 through 28 will not be eval­
uated because they are mooted by the disposition of his 25th 
claim.



App. 116 

(EXCERPT)

[J-121-1997]
IN THE SUPREME COURT 

OF PENNSYLVANIA 
EASTERN DISTRICT

COMMONWEALTH 
OF PENNSYLVANIA

No. 119 Capital 
Appeal Dkt.

Appellee Appeal from the 
Orders of the Court 
of Common Pleas of

V .

Philadelphia County 
entered on Septem­
ber 15, 1995; Novem­
ber 1, 1996; and July 
24, 1997 at No. 1357

MUMIA ABU-JAMAL, 
a/k/a WESLEY COOK

January term 1982 
denying post-convic­
tion relief.

Appellant
SUBMITTED: 
September 2, 1997

OPINION OF THE COURT

MR. JUSTICE GAPPY
DECIDED: 
October 29,1998



A p p .  1 1 7

* * * *

Appellant next submits that the penalty 
phase verdict slip was constitutionally defective 
pursuant to the dictates of Mills u. Maryland, 486 
U.S. 367 (1988). The crux of Appellant's argument 
on this point is that the structure of the form was 
such that the jury would be led to believe that 
unanimity was required in order to find, and thus 
consider, a mitigating circumstance. Appellant's 
argument regarding the structure is:

The jury's completed verdict form showed 
one aggravating circumstance and one miti­
gating circumstance. On the first page of the 
form, the jury had to identify any mitigators 
it weighed by filling in a blank. Then, on the 
third page of the form, the jurors were 
required to identify mitigators by putting a 
check mark on the page. All twelve jurors 
had to sign that page.

(Brief of Appellant at p. 114). Initially, we note 
that Appellant offered absolutely no evidence in 
support of this claim at the PCRA hearing.46 His

46Appellant submits that the PCRA court precluded 
expert testimony on this issue. Appellant here refers to the 
proffered testimony of one Professor John Lamberth who, 
according to the offer of proof, interviewed approximately 
thirty-five persons who had been jurors in death penalty

(continued...)



App. 118

sole support appears to be the verdict slip itself; a 
copy of which he appends to his PCRA petition. 
This argument is without merit. In Mills, the 
Supreme Court vacated a sentence of death on the 
basis that the judge's instructions, together with 
the verdict form, created a substantial probability 
that reasonable jurors may have believed that they 
were barred from considering mitigating evidence 
unless all twelve jurors agreed on the existence of 
any given circumstance. The form employed in 
Mills contained printed instructions for both the 
section respecting aggravating circumstances and 
that for mitigating circumstances. These instruc­
tions were identical but for the respective burdens 
of proof. In both, the term "unanimously" was 
used. Compounding this was the judge's instruc­
tion which indicated that both aggravating and 
mitigating circumstances had to be unanimously 
found. 46

46(...continued)
cases before one particular judge, Judge Jackson. The offer 
of proof further provided that, as a result of those interviews, 
Dr. Lamberth had formed opinions about jurors in general. 
Apparently, it was proposed that he would testify regarding 
those opinions. The court precluded this testimony on the 
grounds that it was not only irrelevant, but also inadmissi­
ble. Not only was this proffered testimony irrelevant, but, as 
noted previously herein, a juror may not impeach or invali­
date a verdict by his or her testimony. Patrick, supra. The 
court, thus, properly excluded this proffered testimony.



A p p .  1 1 9

The verdict slip employed in the instant case 
consisted of three pages. The requirement of 
unanimity is found only at page one in the section 
wherein the jury is to indicate its sentence. The 
second page of the form lists all the statutorily 
enumerated aggravating circumstances and 
includes next to each such circumstance a desig­
nated space for the jury to mark those circum­
stances found. The section where the jury is to 
checkmark those mitigating circumstances found, 
appears at page three and includes no reference to 
a finding of unanimity. Indeed, there are no 
printed instructions whatsoever on either page two 
or page three. The mere fact that immediately 
following that section of verdict slip, the jurors 
were required to each sign their name is of no 
moment since those signature lines naturally 
appear at the conclusion of the form and have no 
explicit correlation to the checklist of mitigating 
circumstances. As such, we cannot conclude, as 
Appellant urges, that the structure of the form 
could lead the jurors to believe that they must 
unanimously agree on mitigating evidence before 
such could be considered. Moreover, verdict slips 
similar to that employed in the instant matter have 
been held by our court not to violate the dictates of 
Mills. See e.g. Commonwealth v. Murphy, 657 
A.2d 927 (Pa. 1995).

k kk k



App. 120 

(EXCERPT)

IN THE COURT OF COMMON PLEAS 
FIRST JUDICIAL DISTRICT 

OF PENNSYLVANIA 
TRIAL DIVISION -  CRIMINAL SECTION

COMMONWEALTH 
OF PENNSYLVANIA

: JANUARY TERM, 
: 1982

V. ■

WESLEY COOK 
a/k/a MUMIA ABU- 
JAMAL : NO. 1357

SABO, J. SEPTEMBER 15, 1995

FINDINGS OF FACT,
CONCLUSIONS OF LAW. & ADJUDICATION

"k -k k  'k

B15. Claim That the Verdict Form Was 
Unconstitutional

171. Petitioner fails to raise this claim at 
trial or on direct appeal. Therefore, this claim 
should be waived. As Petitioner has not overcome 
that procedural bar, the claim should be precluded



A p p .  1 2 1

from PCRA review and may not be further con­
sidered. 42 Pa.C.S. § 9543(a)(3). The following 
discussion of the merits is undertaken in the 
alternative.

172. Petitioner claims the verdict form in 
this case violated the rule in the later-decided case 
of Mills v. Maryland, 486 U.S. 383 (1988). Peti­
tioner offered no evidence with respect to this claim 
at the PCRA hearing.

173. The constitutionality of similar verdict 
forms, along with the instructions given here, has 
repeatedly been upheld. Zettlemoyer v. Fulcomer, 
923 F.2d 284, 306-308 (3rd Cir.) (rehearing denied), 
cert, denied, 502 U.S. 902, rehearing denied, 502 
U.S. 1000 (1991); Griffin v. Delo, 33 F.3d 895, 905- 
906 (8th Cir. 1994) (rehearing and rehearing en 
banc denied) (instructions that jury must be unani­
mous as to the outcome of the weighing stage did 
not imply that jury must be unanimous in finding a 
mitigating circumstance); Maynard v. Dixon, 943
F.2d 407, 418-20 (4th Cir. 1991), cert, denied, 502 
U.S. 1110 (1992) (instructions identical to those 
given here); Commonwealth v. Travaglia, 42 Cap­
ital Dkt. (Pa., June 23, 1995); Commonwealth v. 
Tilley, 528 Pa. 125, 595 A.2d 575 (1991); Common­
wealth v. Williams, 524 Pa. 218, 570 A.2d 75 
(1990); Commonwealth v. O'Shea, 523 Pa. 384, 567 
A.2d 1023 (1989), cert, denied, 498 U.S. 881 (1990); 
Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835



A p p .  1 2 2

(1989); Commonwealth v. Frey, 520 Pa. 338, 554 
A.2d 27 (1989), cert, denied, 494 U.S. 1038 (199Q).40

175 [sic: 174]. Petitioner failed to sustain his 
burden of proving the merits of this claim.

k it k k

40See Battle v. Delo, 19 F.3d 1547, 1560-1561 (8th Cir. 
1994) (rehearing en banc denied) (alternative holding) (no 
error to charge that jury must return life sentence if it 
unanimously decided that one or more mitigating circum­
stances outweighed any aggravating ones); Lawson v. Dixon, 
3 F.3d 743, 754 (4th Cir. 1993), cert, denied, 114 S. Ct. 1208 
(1994) (same: court charged that jury must unanimously 
find that aggravating circumstances outweighed "any” miti­
gating circumstances); Kordenbrock v. Scroggy, 919 F.2d 
1091, 1120-1121 (6th Cir 1990) (en banc) (rehearing and 
rehearing en banc denied), cert, denied, 499 U.S. 970 (1991) 
(same: court charged that jury must be unanimous in 
finding any aggravating circumstance but was silent on how 
many jurors had to find any mitigating circumstance); 
DeShields v. Snyder, 829 F.Supp. 676, 688-689 (D. Del 1993) 
(court instructed that jury must unanimously find that 
aggravating circumstances outweighed any mitigating 
circumstances).



App. 123 

(EXCERPT)

IN THE COURT OF COMMON PLEAS 
OF PHILADELPHIA 

CRIMINAL TRIAL DIVISION

COMMONWEALTH : JANUARY TERM,
1982

: 1357 - POSS. INSTRU­
MENT OF 
CRIME, GEN-

VS. ERALLY

: POSS. INSTRU­
MENT CRIME, 
CONCEALED 
WEAPON

MUMIA ABU-JAMAL : 1358 - MURDER

: VOLUNTARY
MAN­
SLAUGHTER

: 1359 - INVOLUNTARY 
MAN­
SLAUGHTER

JULY 3, 1982

COURTROOM 253, CITY HALL



A p p .  1 2 4

JURY TRIAL

BEFORE: HONORABLE ALBERT F. SABO, J.

PRESENT: JOSEPH McGILL, ESQUIRE 
Assistant District Attorney 
for The Commonwealth

ANTHONY JACKSON, ESQUIRE 
Counsel for The Defense 
(Court-Appointed)

MUMIA ABU-JAMAL, Defendant

if if *  if

CHARGE OF THE COURT 

HON. ALBERT F. SABO, J.

(CHARGE COMMENCED 12:22 P.M.)

THE COURT: Members of the jury, you 
must now decide whether the defendant is to be 
sentenced to death or life imprisonment. The sen­
tence will depend upon your findings concerning 
aggravating and mitigating circumstances. The 
Crimes Code provides that a verdict must be a 
sentence of death if the jury unanimously finds at 
least one aggravating circumstance and no mitigat­
ing circumstance, or if the jury unanimously finds



A p p .  1 2 5

one or more aggravating circumstances which 
outweigh any mitigating circumstances.

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

The Crimes Code defines aggravating and 
mitigating circumstances. I will not go into detail 
on them because I will later explain to you this 
penalty sheet which will go out with you that hsts 
ail of the aggravating and mitigating circum­
stances.

I must, however, at this time instruct you as 
a matter of law that a policeman in the City of 
Philadelphia is in fact and in law a peace officer. 
Every state trooper throughout the Commonwealth 
of Pennsylvania, every police officer throughout the 
Commonwealth of Pennsylvania, and every deputy 
sheriff throughout the Commonwealth of Pennsyl­
vania is in fact and in law a peace officer. A peace 
officer is one whose duty and obligation is to main­
tain order or peace, and who has the legal duty and 
obligation to make arrests. Therefore, a policeman 
in the City of Philadelphia is in fact and in law a 
peace officer. I

I should note that that section indicates that 
he must be in the line of duty in the performance of 
his duties. Therefore, that section would not apply 
to a peace officer who might be on vacation or off 
duty socializing. It applies only if he is killed in the



A p p .  1 2 6

performance of his duties. That means, he must be 
in uniform and actually on duty at the time.

The Commonwealth has the burden of prov­
ing aggravating circumstances beyond a reasonable 
doubt. The defendant has the burden of proving 
mitigating circumstances, but only by a preponder­
ance of the evidence. This is a lesser burden of 
proof than beyond a reasonable doubt. A prepon­
derance of the evidence exists where one side is 
more believable than the other side. All the evi­
dence from both sides, including the evidence you 
heard earlier during the trial-in-chief as to aggra­
vating or mitigating circumstances is important 
and proper for you to consider. You should not 
decide out of any feelings of vengeance or sympathy 
or bias towards the defendant.

Now, the verdict is for you, members of the 
jury. Remember and consider all of the evidence 
giving it the weight to which it is entitled. Remem­
ber that you are not merely recommending a pun­
ishment. The verdict you return will actually fix 
the punishment at death or life imprisonment. 
Remember again that your verdict must be unani­
mous. It cannot be reached by a majority vote or by 
any percentage. It must be the verdict of each and 
everyone of you.

Remember that your verdict must be a sen­
tence of death if you unanimously find at least one 
aggravating circumstance and no mitigating



A p p .  1 2 7

circumstances. 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 imprison­
ment.

You will be given a verdict slip upon which to 
record your verdict and findings. I am holding in 
my hand that verdict report which will go out with 
you. You will see it has three pages. The first page 
says:

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

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

And you have two blocks; one block says 
death, the other block says life imprisonment. 
Whichever unanimously you decide on, you will put 
an “X” in that block.

Now, under (2), it says:

“(To be used only if the aforesaid sentence is 
death.)”

That means, under number one, you have 
indicated death and you will put an “X” in there,



A p p .  1 2 8

you would then have to fill out the number two 
portion. And that reads as follows:

“We, the jury, have found unanimously - - “

And the first block there says:

“At least one aggravating circumstance and 
no mitigating circumstance.”

If that is the block, you put an “X” there and 
then, it says:

“The aggravating circumstance(s) is/are - - “

And what 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.

Now, the second block there says:

“One or more aggravating circumstances 
which outweigh any mitigating circumstances.”

And then, it goes on to say:

“The aggravating circumstance(s) is/are - - “



A p p .  1 2 9

And then, you would as I said before, on the 
second page indicate which ones they were and put 
it on the front here, like a small number or (a) or
(b) or (c) or whatever one you might find. And 
then, underneath that, there are:

“The mitigating circumstances(s) is/are - - “

And those 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 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 and date it down on the bottom, the 
date that you reach the verdict, and return it to the 
Court with this verdict report.

(At 12:27 p.m. the Court concluded its 
Charge to the jury on the aggravating and 
mitigating circumstances.)

COURT CRIER: Everyone remain seated 
until the jury leaves the room.

(At 12:27 p.m. the jury exited the courtroom 
to begin its deliberations.)



A p p .  1 3 0

(Whereupon the verdict report slip was 
examined by counsel for the defense and the dis­
trict attorney.)

MR. JACKSON: Your Honor, may we see 
you at side-bar?

(The following colloquy occurred at side-bar.)

•k ic ~k 'k



A p p .  1 3 1

IN THE COURT OF COMMON PLEAS 
FIRST JUDICIAL DISTRICT 

OF PENNSYLVANIA

COMMONWEALTH : JAN. TERM, 1982 
OF PENNSYLVANIA :

: No. 1358. 
vs. :

: TRIAL DIVISION 
: CRIMINAL SECTION 

MUMIA ABU-JAMAL : PHILADELPHIA

FIRST DEGREE MURDER VERDICT 
PENALTY DETERMINATION SHEET

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

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

/ X 7 death
/__ 7 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



A p p .  1 3 2

circumstance. The aggravating 
circumstance (s) is/are___________ .

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

A________________________ .
The mitigating circumstance(s) is/are 

A_________________________

AGGRAVATING AND 
MITIGATING CIRCUMSTANCES

AGGRAVATING CIRCUMSTANCE(S):

(a) The victim was a fireman, peace 
officer or pubhc servant concerned 
in official detention who was killed
in the performance of his duties ( /  )

(b) The defendant paid or was paid by
another person or had contracted 
to pay or be paid by another person 
or had conspired to pay or to be paid 
by another person for the killing of 
the victim ( )

(c) The victim was being held by the 
defendant for ransom or reward, or
as a shield or hostage ( )



A p p .  1 3 3

(d) The death of the victim occurred 
while defendant was engaged in
the hijacking of an aircraft ( )

(e) The victim was a prosecution wit­
ness to a murder or other felony 
committed by the defendant and 
was killed for the purpose of pre­
venting his testimony against the 
defendant in any grand jury or 
criminal proceeding involving such 
offenses ( )

(f) The defendant committed a kill­
ing while in the perpetration of a 
felony ( )

(g) In the commission of the offense 
the defendant knowingly created 
a grave risk of death to another 
person in addition to the victim
of the offense ( )

(h) The offense was committed by
means of torture ( )

(i) The defendant has a significant
history of felony convictions 
involving the use or threat of 
violence to the person ( )



A p p .  1 3 4

(j) The defendant has been convicted 
of another Federal or State offense, 
committed either before or at the 
time of the offense at issue, for 
which a sentence of life imprison­
ment or death was impossible or 
the defendant was undergoing a 
sentence of life imprisonment for 
any reason at the time of the com­
mission of the offense ( )

MITIGATING CIRCUMSTANCE(S):

(a) The defendant has no significant
history of prior criminal convic­
tions ( /  )

(b) The defendant was under the
influence of extreme mental or 
emotional disturbance ( )

(c) The capacity of the defendant to
appreciate the criminality of his 
conduct or to conform his conduct 
to the requirements of law was 
substantially impaired ( )

(d) The youth or advanced age of the
defendant at the time of the crime ( )



A p p .  1 3 5

(e) The defendant acted under extreme
duress or acted under the substan­
tial domination of another person ( )

(f) The victim was a participant in the
defendant's homicidal conduct or 
consented to the homicidal acts ( )

(g) The defendant's participation in the
homicidal act was relatively minor ( )

(h) Any other mitigating matter con­
cerning the character or record of 
the defendant or the circumstances
of his offense ( )

TSignature of Jurorl 
Foreperson 

[Signature of Jurorl

[Signature of Jurorl

[Signature of Jurorl

[Signature of Juror]

[Signature of Jurorl

[Signature of Juror] 

[Signature of Juror] 

[Signature of Juror] 

[Signature of Juror] 

[Signature of Juror] 

[Signature of Jurorl

DATED: July 3. 1982



A p p .  1 3 6

No. 08-724

In tRj£
S u p r e m e  C o u r t  of tfje QHmtrir S t a t e s

KEVIN SMITH, Warden,
Petitioner,

vs.
FRANK J. SPISAK, JR.,

Respondent.

On Writ Of Certiorari To The United States 
Court Of Appeals For The Sixth Circuit

BRIEF OF RESPONDENT

M i c h a e l  J . B e n z a  
Counsel of Record 

17850 Geauga Lake Road 
Chagrin Falls, Ohio 44023 
(216) 319-1247 
(440) 708-2626 (fax)

A l a n  R o s s m a n  
Assistant Federal 

Public Defender 
C a p i t a l  H a b e a s  U n i t  
1660 West 2nd St., Suite 750 
Cleveland, Ohio 44113 
(216) 522-1950 
(216) 522-1951 (fax)

Counsel for Respondent



A p p .  1 3 7

k k k k

. . . [21] Pet. App. 324a; Pet. App. 73a-74a (Spisak, 
465 F.3d at 709-710). Throughout the proceedings 
the jury was repeatedly addressed in the collective 
"you" and instructed that every decision was to be 
the decision of the "jury." The jury was also specifi­
cally instructed that each of the two sets of verdict 
forms, whether for death or life, had to be unani­
mous. Pet. App. 325a (" . . . there is a spot for 
twelve signatures. All twelve of you will sign it if 
that is your verdict in this case.") -326a ("And 
again, all twelve of you must sign whatever verdict 
it is you arrive at [sic] must be signed in ink"); Pet. 
App. 74a-75a (Spisak, 465 F.3d at 710). Every 
instruction advised the jury that it had to be unani­
mous on decisions. At no point were the jurors 
instructed that a decision as to the existence of a 
mitigating factor was an individual, non-unani- 
mous decision.

The primary concern with Ohio's instruction 
is the command that the jury unanimously reject 
the death penalty before considering a hfe sen­
tence. The instruction is quite clear that the jury 
must first unanimously find that the state failed to 
prove that the aggravating circumstances out­
weighed the mitigating factors before the jury



A p p .  1 3 8

could consider a life sentence.1 Under this instruc­
tion a single juror in favor of a death sentence 
would make it impossible [22] for the remaining, 
eleven individual jurors to give effect to the miti­
gating factors each of them determined to exist. 
This is especially problematic in this case as Spi- 
sak's counsel not only conceded the existence of the 
statutory aggravating circumstances, but argued 
extensively about non-statutory aggravators and 
told the jury this case had "all the aggravating 
circumstances you ever want" while at the same 
time diminishing the existence of the mitigating 
factors. Pet. App. 337a.

The impact of this instruction cannot be 
understated. A reasonable interpretation would 
result in one juror refusing to permit any discus­
sion of life sentences and mitigation evidence 
because that juror was in favor of a death sentence. 
Any effort to discuss mitigation evidence would be 
rebuffed because that would entail a discussion of 
life sentences which is not permissible until the 
death penalty was unanimously rejected. As in 
Mills, "the possibility that a single juror could block 
such consideration, and consequently require the 
jury to impose the death penalty, is one we dare not 
risk." Mills, 486 U.S. at 384.

1 This type of instruction, which appears to be unique 
to Ohio, was subsequently declared unconstitutional under 
Mills. State v. Brooks, 75 Ohio St.3d 148, 161, 661 N.E.2d 
1030, 1041-1042 (1996).



A p p .  1 3 9

While it is possible that the jurors under­
stood and applied the instructions in a manner that 
is constitutionally acceptable, it is just as possible 
that one or more of the jurors was mislead and mis­
applied the law. Given the high degree of certainty 
required in capital cases, Mills, 486 U.S. at 376; see 
also Andres v. United States, 333 U.S. 740, 752 
(1948), there is a substantial probability that a 
juror in this [23] case was prevented from indepen­
dently considering and giving weight to mitigation 
evidence as required by Lockett and Eddings. The 
Ohio Supreme Court's subsequent treatment of the 
acquittal-first instruction clearly demonstrates that 
Ohio's "acquittal-first" instruction violates Mills. 
State v. Brooks, 75 Ohio St.3d 148, 161, 661 N.E.2d 
1030, 1041-1042 (1996). In Brooks, the Court inval­
idated this same instruction relying directly and 
explicitly on Mills.2 See also State v. Diar, 120 
Ohio St.3d 460, 491-92, 900 N.E.2d 565, 600-01 
(2008) (state's concession that jury instruction vio­
lated Mills and required reversal). In Brooks, the 
Ohio Supreme Court ordered that future capital 
juries be affirmatively instructed that a single 
juror's vote for hfe prevents a death sentence. 
Brooks, 75 Ohio St.3d at 162, 661 N.E.2d at 1042.

Added to this concern is the fact that every 
instruction referring to the jury's determinations

2Brooks is the first case in which the Ohio Supreme 
Court even cited Mills in a death penalty case.



A p p .  1 4 0

was couched in terms of unanimity: "Members of 
the jury, you have heard the evidence"; "The Court 
and jury have separate functions. You decided the 
disputed facts"; "Now, credibility. You are the sole 
judges of the acts"; "In this case the aggravating 
circumstance are the specifications upon which you 
returned guilty verdict"; "Mitigating factors are 
those which, while not excusing or justifying the 
offense, or offenses, may in fairness and mercy, be 
considered by you, as [24] extenuating or reducing 
the degree of the defendant's responsibility or pun­
ishment"; "You must state your finding as to each 
count uninfluenced by your verdict as to any other 
count"; "A summary of that section provides that 
you, the trial jury, must consider all of the relevant 
evidence raised at trial, the evidence and testimony 
received in this hearing and the arguments of coun­
sel." Pet. App. 313a-329a. It must be presumed 
that the jury understand the unanimity require­
ment to apply to every decision since there was 
never a contrary instruction. Mills, 486 U.S. at 
378-379. There is simply nothing in these jury 
instructions or verdict forms that would have sug­
gested to any juror that the unanimity instruction 
did not apply to every single jury determination, 
including the existence of mitigating factors or the 
impact of that evidence. The totality of the jury 
instructions were such that a reasonable juror 
would have understood the instruction to mean 
that a death sentence had to be unanimously 
rejected before a life sentence could be considered. 
As in Mills, the impact of this instruction is to



A p p .  1 4 1

preclude each individual juror from individually 
giving effect to the mitigation evidence.

Contrary to the Warden's assertion, the 
Sixth Circuit did not hold that states must give a 
specific instruction that the jury need not be unani­
mous as to the existence of mitigating factors. How 
states choose to structure jury instructions is typi­
cally left to the states. Buchanan v. Angelone, 522 
U.S. 269, 277 (1998) ("The State may shape and 
structure the jury's consideration of mitigation so 
long as it does not . . .

k k k k