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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

The rules of Teague v. Lane and 28 U. S. C. §2254(d) are important and independent limitations on collateral review. The Court of Appeals’ erroneously narrow interpretation of these rules will needlessly delay enforcement of the death penalty, reducing its deterrent effect. These delays are contrary to the rights of victims and society which CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

Over twenty years ago, George Banks "shot fourteen people . . . killing thirteen and wounding one." Commonwealth v. Banks, 521 A. 2d 1, 3 (Pa. 1987), cert. denied, Banks v. Pennsylvania, 484 U. S. 873 (1987). The dead included seven children. See id., at 5. He was sentenced to death in 1983. Id., at 3. Despite the absence of any doubt regarding his identity as the perpetrator, see id., at 8, the execution of the judgment has been delayed for two decades of repetitive review, including a direct appeal, two state collateral reviews, two federal habeas petitions, and associated appeals and petitions for certiorari. See Banks v. Horn, 63 F. Supp. 2d 525, 530-531 (MD Pa. 1999).

In the current round, the United States Court of Appeals for the Third Circuit denied most of his claims, but it vacated the death sentence based on its disagreement with the Pennsylvania Supreme Court regarding the application of Mills v. Maryland, 486 U. S. 367 (1988), a precedent established after Banks' sentence became final on direct review. See Banks v. Horn, 271 F. 3d 527, 540-541 (CA3 2001).

This Court granted certiorari and summarily reversed in Horn v. Banks, 536 U. S. 266 (2002) (per curiam). The per curiam opinion confirmed that the nonretroactivity rule of Teague v. Lane, 489 U. S. 288 (1989) remains an independent limitation on federal habeas corpus and remanded for determination of whether Mills was a new rule. 536 U. S., at 272.

On remand, the Third Circuit panel divided. The two-judge majority held that Mills was not a new rule within the meaning of the Teague line of cases. Banks v. Horn, 316 F. 3d 228, 229-230 (CA3 2003). The third judge believed Mills was a new rule, but also believed that when a state court waives its procedural default rule and considers on collateral review a claim that could have been raised on direct appeal, the case is not "final" within the meaning of Teague until the completion of the collateral review. Id., at 255 (Sloviter, J., concurring). ⁽¹⁾ The Commonwealth of Pennsylvania, through the Secretary of its Department of Corrections, has again asked this Court to review the case via a petition for writ of certiorari.

SUMMARY OF ARGUMENT

The Court of Appeals in the present case found the rule of Teague v. Lane difficult to apply, and it is evident that further instruction is needed. The Court of Appeals' opinion comes close to a catalog of all the ways this Court has said not to conduct the Teague inquiry: (1) defining "rules" at an excessive level of generality; (2) holding that an outcome is "dictated" because it implements policies of earlier cases, while ignoring countervailing indications of other cases; (3) inadequately surveying the legal landscape, especially ignoring state court opinions; (4) relying on nonconstitutional decisions governing only federal criminal cases, which do not impose those rules on the states; (5) disregarding the close division in the rule-making case itself; and (6) giving no weight to settled practice.

On the merits, it is also evident that the rule of Mills v. Maryland and McKoy v. North Carolina needs clarification. As Justice Kennedy noted in his McKoy concurrence, a rule requiring the jury to be unanimous either way on mitigating circumstances is not only permissible but desirable. Courts and legislatures are adopting the "every juror for himself" rule in the mistaken belief that Mills and McKoy require it. This is contrary to the evenhandedness principle of Furman v. Georgia and contributes to arbitrariness in capital sentencing.

On the application of 28 U. S. C.§2254, the Court of Appeals quoted and used a standard of "independent judgment" that was expressly and emphatically rejected by this Court in Williams v. Taylor.

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Footnote 1. Judge Sloviter made no attempt to reconcile her unique definition of finality with the fact that this Court applied the usual definition in identical circumstances in Sawyer v. Smith, 497 U. S. 227 (1990). See Brief for Criminal Justice Legal Foundation as Amicus Curiae inHorn v. Banks, No. 01-1385, pp. 4-5.  
 
August 2003