Beard, Jeffrey, Secy., PA Dept. of Corrections, et al. v. Banks, George (06/24/2004)

Questions presented: questions presented

BY KEVIN GRASHA, MEDILL NEWS SERVICE

Two decades ago, George Banks was convicted of murdering 13 people -- including seven children, five of whom he had fathered -- in a 1982 shooting rampage in Luzerne County, Penn.

Since Banks 1983 conviction on 12 counts of first-degree murder and one count of third-degree murder and subsequent death sentence, the case has followed a long, twisted path through the court system.

After numerous unsuccessful appeals in state and federal courts, Banks appealed to the 3rd Circuit Court of Appeals, which reversed his death sentence in October 2001.

The case then went to the U.S. Supreme Court, which in 2002, in Horn v. Banks, told the 3rd Circuit to re-consider its decision. But in January 2003, the 3rd Circuit unanimously reaffirmed its decision to take Banks off death row, and the case is again before the U.S. Supreme Court.

The 3rd Circuit, citing the 1988 Supreme Court opinion in Mills v. Maryland, ruled that the jury instructions at the time of Banks sentencing were flawed because jurors were led to believe they could not vote against the death penalty unless they all agreed on at least one mitigating factor. The 3rd Circuit said Banks was entitled to a new sentencing hearing with revised jury instructions.

In Mills v. Maryland, the Supreme Court overturned a Maryland statute that said jurors had to unanimously agree on mitigating evidence when determining a sentence in a death penalty case.

The 3rd Circuit had a major problem to contend with: Mills v. Maryland was decided approximately eight months after Banks sentence became final. Nevertheless, the 3rd Circuit concluded it could be applied "retroactively."

Banks case is now bogged down by the technical legal question of whether Mills v. Maryland can still be applicable, according to Kent Scheidegger of the Criminal Justice Legal Foundation, which has filed two amicus briefs urging the U.S. Supreme Court hear the case.

Scheidegger explained the two issues now before the court:

Did Mills v. Maryland create a new rule of constitutional law, whichaccording to a 1989 U.S. Supreme Court decision, means it could not overturn judgments that became final before it was announced? And, if it does apply, does it mean the jury instructions were flawed?

If the U.S. Supreme Court overturns Banks death sentence, it could determine the fate of a number of other inmates on Pennsylvanias death row, prosecutors say.

In their brief asking the Supreme Court to take the case, prosecutors from the Luzerne County district attorneys office argued that the 3rd Circuit had, "through their Mills analysis of this once-standard instruction, effectively nullified every death penalty imposed in Pennsylvania before approximately 1989." They argued it could impact about 30 cases in the state.

The CJLF agreed, arguing in a brief that the appeals court had completely ignored two earlier Supreme Court decisions which prohibit federal courts from overturning state convictions or sentences because of later changes in legal procedure.

Furthermore, the CJLF said that the court of appeals erroneously narrow interpretation of these rules will needlessly delay enforcement of the death penalty, reducing its deterrent effect.

"The number one problem in capital punishment today is that the rules are constantly changing," Scheidegger said. "It is practically impossible to conduct a capital sentencing proceeding that won't be considered erroneous at some time in the future."

He said the Supreme Court has "tinkered" with the rules for nearly 30 years and needs to clarify those adjustments, so the only cases affected are the ones that are either tried after they announce a rule or are still pending on appeal.

Banks attorney, Albert J. Flora, Jr., disagrees, however, saying that no one really knows for sure how many cases may be affected.

Meanwhile, as the courts sort through the legal minutia, Banks sits in his cell in a Pennsylvania state prison, waiting -- but maybe not understanding -- any of what is happening.

Flora said even though he was deemed competent to stand trial in 1982, Banks was, and still is, "severely mentally ill." He added that even the prosecutions psychologist agreed with that assessment.

"The thing that really did us in during the trial," Flora recalled, was when Banks took the witness stand against his advice and insisted on entering crime scene photographs into evidence to try to show that there was a government conspiracy against him.

Banks alleged that his shots had only wounded, not killed, some of the victims, and that police had shot them. He explained that some of the bullet holes had been covered up with "coroners paste" and that dummies were used in the photographs.

"When he took the stand, we had no idea what he was going to say," Flora said.

Whether Banks serves a life sentence or is put to death now hinges on what the U.S. Supreme Court decides about what retroactivity means.

"If they say Mills does apply to this case, then they have to decide whether Banks should get a new sentencing hearing," Flora said. "If they say Mills doesnt apply retroactively thats the end."

On Sept. 30, 2003, one week before the start of the 2003-04 term, the U.S. Supreme Court accepted review in the case and allowed Banks to have his case heard without court costs.