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A. Two Kinds of Unanimity.
Concurring in the judgment in McKoy v. North Carolina, 494 U. S. 433, 455, n. * (1990), Justice Kennedy sounded a note of caution regarding possible misinterpretation of that opinion.
"Indeed, the broad language of today's opinion might be read to suggest that a scheme requiring jury unanimity as to the presence or absence of a mitigating factor could violate the Constitution. Such a requirement, however, enhances the reliability of the jury's decision without any risk that a single holdout juror may impose a sentence against the views of the other 11." (Emphasis in original).
The Court of Appeals' interpretation of Mills in its first opinion in this case demonstrates that Justice Kennedy's concern was justified. That court apparently understood the rule of Mills to be that jury instructions violate the Constitution if "a reasonable jury could have concluded from the instruction that unanimity was required to find a mitigating circumstance." Banks v. Horn, 271 F. 3d 527, 546 (CA3 2001). Greater depth of analysis is required. Properly understood, Mills does not forbid a bidirectional unanimity requirement.
The problem in Mills was the possibility that the jury could have understood its instructions to require it to give no effect whatsoever to any mitigating circumstance on which the jury was divided, and they must proceed to the final decision on the assumption that circumstance was not true. That is not the same as a general prohibition on any unanimity requirement. See Mills v. Maryland, 486 U. S. 367, 375 (1988). When the jury is not unanimous upon its initial consideration of a mitigating circumstance, there are four possible modes of proceeding:
1. Each juror should proceed to the final decision considering the circumstance if he or she has individually found it true.
2. All jurors should proceed on the premise the circumstance is true.
3. All jurors should proceed on the premise the circumstance is false.
4. The jurors should continue deliberating until they are unanimous, and if they cannot agree report deadlock to the judge, i.e., exactly the procedure they just finished following for the guilt verdict.
Only number 3 violates the rule of Mills. Neither Mills nor McKoy forbids a state from requiring a jury to continue deliberating until it is unanimous one way or the other. The assumption that Mills forbids any kind of unanimity requirement is too simplistic. Mills forbids a state from giving a minority of jurors the power to block the others from considering a circumstance they believe is true. The Court of Appeals' analysis completely ignores this distinction.
The instructions in the present case included a sentence not found in the instructions in Frey v. Fulcomer, 132 F. 3d 916 (CA3 1997): "If, after conscientious and thorough deliberations, you are unable to agree on your findings and your verdict, you should report that to me." Banks, 271 F. 3d, at 547. This sentence indicates interpretation 4 above, continue deliberating until unanimous or report deadlock. It flatly contradicts interpretation 3, the Mills violation. Yet the Court of Appeals, in apparent reference to this sentence, finds it "even more egregious than in Frey regarding the need for the jurors to 'agree' on their 'findings.' " Id., at 547, n. 23.
There is nothing "egregious" or even erroneous about requiring jurors to deliberate until they are unanimous. Such a procedure is entirely in accord with the Anglo-American jury tradition. See McKoy, 494 U. S., at 452 (Kennedy, J., concurring in the judgment). That was how the dissent understood the instructions in Mills. 486 U. S., at 391-393 (Rehnquist, C.J., dissenting). The Mills majority did not dispute that such a procedure would be constitutional; the holding is based entirely on the possibility of a different interpretation. See id., at 378, and n. 11, 383.
The instructions in this case violate the rule of Mills only if the possibility of interpretation 3, as distinct from interpretation 4, reaches the "reasonable likelihood" threshold of Boyde v. California, 494 U. S. 370, 380 (1990). The Court of Appeals not only failed to appreciate the distinction, it placed an important sentence on the wrong side of the balance. See 271 F. 3d, at 547, and n. 23. Discussing the verdict slip, the Court of Appeals says, "There is also no language anywhere on the form from which the jury could infer that a mitigating circumstance might be marked if only one juror had found that circumstance to exist." Id., at 550. There is also no language anywhere in the Third Circuit's opinion from which we can infer that the court understands that such a procedure is not required by Mills. That is, the court appears to be completely oblivious to the distinction between the two kinds of unanimity requirements, one valid and one not. This error makes evident the need for further clarification of exactly what Mills prohibits and what it allows.
The differences from Mills do not stop there. In the present case, there is no need to speculate what the jurors individually found, because the trial judge asked them. The jurors were individually polled on their circumstance findings as well as their final penalty verdict, and every one responded with the same circumstance. Commonwealth v. Banks, 656 A. 2d 467, 471 (Pa. 1995). The possibility that a "requirement of unanimity" operated to "produce a capital sentence that lacks unanimous support of the jurors," McKoy, 494 U. S., at 452 (Kennedy, J., concurring in the judgment), simply is not present in this case. This jury was completely unanimous on the mitigating factors. This is not the least bit surprising, since the defense focused on mental illness, its case for that factor was strong, and that is the factor the jury found. See Commonwealth v. Banks, 521 A. 2d 1, 6-9 (Pa. 1987).
In the wake of Mills and McKoy, courts and legislatures have adopted the "every juror for himself" approach in the erroneous belief that it is constitutionally required. See, e.g., 18 U. S. C. §3593(d); Maryland Rule 4-343(h). The result is to subtly undermine the regularity that was the central purpose of the post-Furman reforms. In order that those sentenced to death not be a "capriciously selected random handful," Furman v. Georgia, 408 U. S. 238, 309-310 (1972) (Stewart, J., concurring), arbitrariness must be restrained in both directions. If a circumstance is considered mitigating in one defendant's case and not in the case of another similarly situated defendant, regularity and even-handedness are undermined. The rule of Lockett v. Ohio, 438 U. S. 586 (1978) and its progeny makes this inevitable to the extent that the definition of "mitigating" can be decided by each jury as a body, see Graham v. Collins, 506 U. S. 461, 494 (1993) (Thomas, J., concurring), but allowing that decision to turn on the idiosyncracies of individual jurors greatly aggravates the problem.
This is not idle speculation. Individual jurors have demonstrated some truly bizarre notions of what constitutes mitigation. For example, the case of Steven Oken is a revolting case of sexual assault and murder by a triple rapist/murderer. See Oken v. State, 790 A. 2d 612, 614-617 (Md. 2002) (Cathell, J., dissenting). Under Maryland's post-Mills procedure, at least one juror actually found that sexual sadism was a mitigating factor! See Oken v. State, 612 A. 2d 258, 283 (Md. 1992); see also Graham v. Collins, 506 U. S. 461, 500 (1993) (Thomas, J., concurring) (claim of "mitigating" circumstance "that the defendant suffers from chronic 'antisocial personality disorder'--that is, that he is a sociopath"). We have idiosyncratic jurors weighing as mitigating those factors which anyone with sense would count as grievously aggravating. This is irrational, arbitrary, and contrary to the principles of Furman.
Before legislatures and state courts can move capital sentencing law back in the direction of greater regularity and less capriciousness, this Court must make clear that they are permitted to do so. The states have been so badly whipsawed by shifting doctrine that nothing less than a clear holding will do. This case presents an opportunity for that clear holding. The additional sentence in the instruction to report back in the event of deadlock reduces the possibility of interpretation number 3, the Mills violation, below the Boyde threshold. The jury poll establishes that this jury was, in fact, unanimous on the factors. The Court can, in this case, establish the footnote in Justice Kennedy's McKoy concurrence as unquestioned law.
There is a second point which should be clear, but evidently is not. The Court of Appeals in this case relied on Mills v. Maryland for the proposition that "the critical question is . . . whether a reasonable jury could have interpreted the instructions in an unconstitutional manner . . . ." 271 F. 3d, at 544 (emphasis added). Mills did indeed say that, as the dissenters so vigorously asserted in Boyde v. California, 494 U. S. 370, 390 (1990) (Marshall, J., dissenting) ("unequivocally confirmed"). However, the Boyde majority found the precedents as a whole less clear and adopted the "reasonable likelihood" standard. Id., at 380. Mills is simply no longer good law on this point.
The Court of Appeals in this case was oblivious to the distinction between the Mills standard and the Boyde standard, and it cited them interchangeably as if they were the same. Indeed, in the very same paragraph in which the court cites the discredited Mills standard, it also cites Boyde. See 271 F. 3d, at 544.
The difference is important. Enormous amounts of time and resources are expended in the microdissection of capital penalty jury instructions. Three decades after Furman, we should expect that all defects in standard instructions which are so fundamental as to transgress the Constitution have been found, and that further fine-tuning can be safely left to state courts and legislatures. Yet the process continues in cases such as this one, where an instruction considered perfectly proper at the time of the trial is still being litigated twenty years later.
The Boyde standard, properly understood and fairly applied, would give states more breathing room and allow most constitutional challenges to standard instructions to be quickly dismissed. The instructions in the present case do not create a reasonable likelihood that the jury thought any number of jurors less than unanimous could preclude the others from considering a circumstance they continued to believe was true. The jury poll affirmatively demonstrates this did not happen. Boyde precludes Banks' claim, but apparently the standard is not sufficiently clear.
Stubborn resistance to the limits on federal habeas by courts of appeals is not confined to disregard of this Court's precedents. Cavalier disregard of the limits established by Congress is also widespread. On May 19 of this year, this Court unanimously reversed a decision of the Sixth Circuit in which that court recited the rule of 28 U. S. C. §2254(d) and then completely failed to apply it, deciding the case de novo instead. Price v. Vincent, 538 U. S. __ (No. 02-254, May 19, 2003) (slip op., at 4).
The Court of Appeals' first opinion in the present case is no better. It says,
"the United States Supreme Court has made it clear that a federal court must apply independent judgment in its interpretation of federal law and if, 'after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail.' " Banks v. Horn, 271 F. 3d 527, 542, n. 15 (CA3 2001) (quoting Williams v. Taylor, 529 U. S. 362, 389 (2000)).
The Court of Appeals appears to be oblivious to the fact that this passage is not from the opinion of the Court in Williams. It is from part II of Justice Stevens' opinion, which is, in effect, a dissent on this point. The opinion of the Court on this point is part II of Justice O'Connor's opinion, which emphatically rejects this passage. See Williams, 529 U. S., at 403. For the Court of Appeals to cite a major precedent of this Court for exactly the opposite of its actual holding is unsettling, to put it mildly.
Regrettably, the Court of Appeals' opinion in the present case does not stand alone in its embrace of the de facto judicial repeal of the statute, which this Court rejected in Williams. In Van Tran v. Lindsey, 212 F. 3d 1143, 1153-1154 (CA9 2000), the Ninth Circuit adopted a "firm conviction" standard, despite the fact that this was precisely the standard proposed in Justice Stevens' opinion in Williams, 529 U. S., at 389, and rejected by the majority in that case. The Ninth Circuit applied that standard in Andrade v. Attorney General, 270 F. 3d 743, 753 (CA9 2001), and this Court reversed. "We have held precisely the opposite . . . ." Lockyer v. Andrade, 538 U. S. __, 155 L. Ed. 2d 144, 158, 123 S. Ct. 1166, 1175 (2003). The present case is equally flagrant.
Such flouting of both an Act of Congress and this Court's precedent by a court of law is intolerable. Beyond question, in this case "a United States court of appeals . . . has decided an important federal question in a way that conflicts with relevant decisions of this Court." Supreme Court Rule 10(c).
The petition for a writ of certiorari should be granted.
June, 2003
Respectfully submitted,
Kent S. Scheidegger
Attorney for Amicus Curiae|
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