MUMIA ABU-JAMAL, a/k/a WESLEY COOK v. Secretary, Pennsylvania Department of Corrections

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 May 17, 2007

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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
_________________
OPINION OF THE COURT
_________________
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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 challenged his conviction. See Abu-Jamal v. Horn, 520
F.3d 272 (3d Cir. 2008). Our court denied his petition 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 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
sentence.
1 Abu-Jamal claimed the jury was unconstitutionally limited
in its consideration of mitigating factors to only mitigating
factors found unanimously by the jury. See Mills v.
Maryland, 486 U.S. 367 (1988).
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On January 19, 2010, the United States Supreme Court
granted the Commonwealth’s petition for a writ of certiorari,
vacated our judgment 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 Pennsylvania
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 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. Commonwealth 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. Sept. 15, 1995); Commonwealth v. Abu-Jamal,
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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
November 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 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 conviction 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 unreasonably
applied United States Supreme Court precedent in finding
otherwise and affirming the Court of Common Pleas of
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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 Commonwealth
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 sentencing 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 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 instructions and verdict form employed in
2 As noted, a divided panel affirmed the denial of 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).
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the sentencing phase of Abu-Jamal’s trial. See 28 U.S.C. §
2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Pursuant to the Supreme Court’s order, we consider this
question in light of Spisak and 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 established 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 application of,
clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(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 question of law,” or “if the state court confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result opposite to
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[the Court’s].” Williams, 529 U.S. 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 established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),
in Mills. “Under § 2254(d)(1)’s ‘unreasonable application’
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 unreasonable.” Williams, 529
U.S. at 409.
In Spisak, the Supreme Court found no violation of
Mills and consequently concluded the state court decision at
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issue, reaching the same conclusion, was not “‘contrary to, or
. . . an unreasonable 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 evaluate whether a Mills violation has
occurred, and then proceed to examine whether the
Pennsylvania Supreme Court’s application of Mills was
objectively 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 precluded from
considering any mitigating evidence unless all 12 jurors
agreed on the existence of a particular such circumstance.”3
486 U.S. at 384. The Court held the Constitution proscribes
imposition of the death penalty if members of the jury could
reasonably believe they are precluded from considering
3 Spisak used the word “possibility” instead of “probability”
when quoting directly from Mills. See 130 S. Ct. at 684
(quoting Mills, 486 U.S. at 384). We take this to have been
inadvertent, and in any event Mills used both formulations.
See 486 U.S. at 377, 384. We do not understand Spisak to
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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) (“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
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 “‘[b]ased upon the evidence we
unanimously find that each of the following mitigating
circumstances which is marked ‘yes’ has been proven to exist
have changed the legal standard for evaluating this kind of
question.
4 In 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
consideration of relevant evidence,” id. at 378, 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,” 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.
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. . . 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 “‘[b]ased on the
evidence we unanimously 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 mitigating factor
had been proved, and to consider in its weighing analysis . . .
only those mitigating factors marked ‘yes.’” Spisak, 130 S.
Ct. at 683. Accordingly, the Court found the jury was “not
free . . . to consider all relevant evidence in mitigation as they
balanced aggravating and mitigating circumstances,” but only
mitigating evidence found unanimously to exist.5 Mills, 486
U.S. at 380. The Mills Court conceded that a constitutional
“construction of the jury instructions and verdict form is
plausible,” 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 permitted to
consider all mitigating evidence. The possibility that a single
juror could block such consideration, and consequently
5 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.
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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 substantial 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) We, the jury, unanimously sentence the
defendant to
[X] death
[ ] life imprisonment.
(2) (To be used only if the aforesaid
sentence is death)
We, the jury, have found unanimously
[ ] at least one aggravating
circumstance and no mitigating
circumstance. The aggravating
circumstance(s) is/are
________________________________.
[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________________.
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The second page listed ten potentially aggravating
circumstances (a-j). A third page listed eight potentially
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:
Members of the jury, you must now decide
whether the defendant is to be sentenced to
death or life imprisonment. 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 aggravating circumstance and no
mitigating circumstance, or if the jury
unanimously finds one or more aggravating
circumstances which outweigh any mitigating
circumstances.
6 The 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.”
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The verdict must be a sentence of life
imprisonment in all other cases.
. . . . .
The [C]ommonwealth 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. . . .
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
everyone [sic] of you.
Remember that your verdict must be a sentence
of death if you unanimously find at least one
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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.
It is substantially probable the verdict form’s first
page, especially “[w]e, the jury, have found unanimously . . .
one or more aggravating circumstances which outweigh any
mitigating circumstances,” was read by the jury to mean that
both aggravating and mitigating circumstances must be found
unanimously. The jury instructions read similarly, stating:
“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 aggravating circumstances
which outweigh any mitigating circumstances.” And the
portion of the form where the jury was instructed to identify
any mitigating circumstances found—“The mitigating
circumstance(s) is/are ___.”—was introduced by the words
“[w]e, the jury, have found unanimously.” Moreover, 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 circumstances, it is notable that neither the verdict
form nor the judge’s charge said or in any way suggested that
the jury should apply the unanimity requirement to its
findings of aggravating but not mitigating circumstances.
This absence is also notable because the trial court
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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 circumstances and that there is a
substantial probability the jurors believed they were
precluded from independent consideration of mitigating
circumstances in violation of Mills. We now compare the
instructions at issue in Spisak with the verdict form and jury
charge here to determine whether our conclusion 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
“differ[ed] 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 application of, clearly established Federal law,
as determined 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 “aggravating factors
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they would consider were the specifications 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 committed with the intent to
evade apprehension or punishment for another offense.” Id.
at 683. The 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 quotation 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
determine 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
mitigating 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.
. . . . .
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On the other hand, if after considering all of the
relevant evidence raised at trial, the evidence
and the testimony received at this hearing and
the arguments of counsel, you find that the State
failed to prove beyond a reasonable doubt that
the aggravating circumstances which [Spisak]
has been found guilty of committing in the
separate counts outweigh the mitigating factors,
you will then proceed to determine which of
two possible life imprisonment sentences to
recommend to the Court.
Id. at 683-84 (alteration in original) (internal quotation 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 committing was sufficient to
outweigh the mitigating factors present in this
case.
We the jury recommend that the sentence 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 defendant . . . was
found guilty of committing are not sufficient to
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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 unanimously. 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 to
“conside[r] all of the relevant evidence.”
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
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they said or what they implied, the circumstance
that Mills found critical, namely, “a substantial
possibility [sic] 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
precluded from considering any mitigating
evidence unless all 12 jurors agreed on the
existence of a particular such circumstance.”
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 question. The Commonwealth sees
equivalence in “‘[i]f 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,’” 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.
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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 individual
determinations that each particular mitigating 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 balancing 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
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 identified mitigating
7 The 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 mitigating
circumstances.”
21

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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 potentially
mitigating circumstances; as discussed, the list is
accompanied by spaces for a checkmark after each potential
circumstance. The trial judge instructed the jury to identify
each mitigating circumstance 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 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
determinations regarding both mitigating and aggravating
circumstances contemporaneously during the penalty 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
8 The jury instructions for aggravating circumstances stated:
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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,
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
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
circumstances] 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.
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the trial judge distinguished between mitigating and
aggravating circumstances with respect to the proper standard
of proof applicable to each.9 This reinforced the apparent
similitude with respect to the finding of mitigating and
aggravating circumstances, increasing the “risk that the jury
was misinformed,” id. at 381, and impermissibly limited in its
consideration of mitigating evidence. Accordingly, unlike the
jury in Spisak, the jury here was required to specify not only
the aggravating circumstances 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
9 The 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, 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 evidence 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.
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unanimity requirement to its finding of aggravating but not
mitigating circumstances.
Accordingly, we conclude our judgment that there is a
“substantial probability” the jury believed 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
mitigating 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 violation. 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
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the statutorily enumerated aggravating
circumstances and includes next to each such
circumstance a designated space for the jury to
mark those circumstances 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.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 119 (Pa. 1998).
The Pennsylvania Supreme Court focused exclusively
on the verdict form and reached its 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
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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 considered,” 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 unanimously . . . 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 circumstances from visually
identical lists and represent its findings as to each in an
identical manner. 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 circumstances must be found unanimously.
See id. For these reasons, the Pennsylvania Supreme Court’s
application of Mills was objectively unreasonable.
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VI.
Like the Mills Court, “[a]lthough we are hesitant to
infer too much about the . . . verdict form from . . . well-
meant efforts to remove ambiguity from the State’s capital
sentencing scheme, we cannot 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 capital 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 mitigating 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
verdict 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
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______ 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):
______.
______2. One or more aggravating
circumstances which outweigh(s) any
mitigating circumstance(s).
The aggravating circumstance(s) unanimously
found (is) (are):
______.
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 circumstance(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):
______.
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Pa. R. Crim 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 circumstance(s) is/are __. The mitigating
circumstance(s) is/are __.” By contrast, the revised uniform
verdict slip states “[t]he mitigating circumstance(s) found by
one or more of us (is) (are),” thereby making clear that,
although aggravating circumstances must be found
unanimously, mitigating evidence need not be found
unanimously in order to be considered by individual jurors
during the weighing and balancing process. The
Pennsylvania Suggested Standard Criminal Jury Instructions
were also amended to remove ambiguity with respect to the
consideration of mitigating evidence during the weighing and
balancing process. See Pennsylvania Suggested Standard
Criminal 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 aggravating 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 circumstance 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 circumstance must be unanimous.
All of you must agree that the Commonwealth
has proven it beyond a reasonable doubt. That
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is not true for any mitigating circumstance.
Any circumstance that any juror considers to be
mitigating may be considered by that juror in
determining the proper sentence. This different
treatment of aggravating and mitigating
circumstances is one of the law’s safeguards
against unjust death sentences. It gives a
defendant the full benefit of any mitigating
circumstances. It is closely related to the
burden of proof requirements. Remember, the
Commonwealth must prove any aggravating
circumstance beyond a reasonable doubt while
the defendant only has to prove any mitigating
circumstance by a preponderance of the
evidence. Your final sentence—life
imprisonment or death—must be unanimous.
All of you must agree that the sentence should
be life imprisonment or that the sentence should
be death because there is at least one
aggravating circumstance and no mitigating
circumstance or because the aggravating
circumstance or circumstances outweigh the
mitigating 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 v. Ohio,
438 U.S. 586, 605 (1978)). Accordingly, “[w]e can and do
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32
infer from these changes at least some concern . . . that juries
could misunderstand the previous instructions as to unanimity
and the consideration 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 imprisonment.” Abu-Jamal,
2001 WL 1609690, at *130.

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