Roderick Herman Frey | Murderpedia, the encyclopedia of murderers

AND NOW, May 15, 1980, we the jurors empaneled

(insert either death or life imprisonment)

If the sentence is death complete the following portion.

(check only one block)

We the jury have found unanimously

( ) at least one aggravating circumstance and not

mitigating circumstance. The aggravating

circumstance(s) (is) (are)

(/) One or more aggravating circumstances which

outweigh any mitigating circumstances. The

aggravating circumstance(s) (is) (are)

Murder by contract

[ JUROR'S SIGNATURES ]

Frey nonetheless argues that Sorrentino's misstatements could have prejudiced him. Theoretically, the jury could have noticed that the judge and prosecution contradicted Sorrentino on the law and held it against Frey. But the record reveals no outspoken rebukes of Sorrentino, so it is most likely that the jury did not even notice. More importantly, even if the jury did notice, it apparently followed its proper instructions. At least we must presume so, absent any indication to the contrary.

Inadequate Stress on Lack of a Prior Record

As just noted, the prosecution and the trial judge both advised the jury that Frey had no prior record. On the other hand, defense counsel no doubt could have and, in our view, should have presented that fact more persuasively. During the sentencing hearing, Sorrentino did elicit from Frey's father that Frey had never been in trouble before, but, presumably because Sorrentino did not know that criminal history was a statutory mitigating factor, he never hammered the point home in his closing argument. A grudging acknowledgment by the prosecutor and a dry instruction by the trial judge were hardly perfect substitutes.

Nevertheless, Frey's lack of a criminal record was definitely emphasized to the jury during the sentencing proceeding. We cannot conclude that a slightly more favorable spin on Frey's acknowledged lack of criminal history would have, by itself, made a significant difference in the jury's weighing of factors, especially given that the crime was particularly horrible.12 Accordingly, our main consideration will be other potentially mitigating factors pressed by Frey on this appeal that neither the defense nor the prosecution argued in terms during the sentencing phase. We take those arguments in statutory order.

Failure to Argue Extreme Emotional Disturbance and Diminished Capacity

The revised statute lists as mitigating factors "influence of extreme mental or emotional disturbance," 42 Pa.Cons.Stat.Ann. § 9711(e)(2), and "substantial[ ] impair[ment]" of the defendant's "capacity ... to appreciate the criminality of his conduct or to conform his conduct to the requirements of law," 42 Pa.Cons.Stat.Ann. § 9711(e)(3). Although the trial judge instructed on both of these, and defense counsel could certainly have argued both, we conclude that there was virtually no chance that the jury would have found either one.

The psychological evidence from the expert, Dr. Wittmaier, simply did not support a finding of either extreme emotional disturbance or diminished capacity. Wittmaier concluded that Frey "ha[d] a good understanding of social conventions, [and] that his judgment would be generally adequate." Tr. 1034. Frey's only significant deviations from a normal psychological profile were harm avoidance, defendence, and exhibition, none of which were at all likely to convince a jury that Frey was emotionally disturbed or suffered from diminished capacity in a premeditated contract murder case. Hence even if Sorrentino should have argued either of these factors, Frey incurred insignificant prejudice from the failure to argue them.

Failure to Argue "Substantial Domination"

The revised statute considers both "extreme duress, although not ... such duress as to constitute a defense to prosecution" and "substantial domination by another person" as a mitigating circumstance. 42 Pa.Cons.Stat.Ann. § 9711(e)(5). The drafters of this statute obviously considered this lesser species of duress and "substantial domination" to be qualitatively similar, for they listed the two together as one mitigating factor. Moreover, although the Commonwealth conceded at oral argument, and we shall assume, that "substantial domination" is a somewhat less rigorous standard than this brand of duress, the difference between the two does not appear great, at least on the facts of Frey's case.13

When a defendant is in the penalty phase, the jury has already ruled out true duress of the kind that is a defense to guilt under 18 Pa.Cons.Stat.Ann. § 309 (quoted in note 9). The only sorts of duress remaining during the penalty phase of a capital case are therefore situations where (1) a "reasonably firm" person would have resisted actual or threatened use of force but the defendant did not (subsection 309(a)), or (2) the defendant has recklessly placed himself or herself in a situation where coercion by actual or threatened use of force is probable (subsection 309(b)). Frey's argument was of the first sort: Sorrentino argued, and Frey still maintains, that he was a weak person who gave in to Zehring's threats.

"Substantial domination," in contrast, might not require the actual or threatened force that is an element of duress. A dominant coconspirator may have a magnetic, persuasive personality and the defendant may simply be psychologically easy to manipulate, such that threatened force is unnecessary. Nevertheless, on these facts both defenses were similar in that the basic premise of both would have been that the dominant coconspirator, Zehring, led a weak Frey astray.

Because the arguments were so similar and were linked in the statute, reasonable defense counsel might have spoken of "duress" as a shorthand while making both arguments. But that is apparently not what happened here. Sorrentino vigorously argued duress, but, because he was using the incorrect statute, did not know that he could argue "substantial domination" to the jury. Sorrentino's mistake was not a verbal miscue, and we can imagine no tactical reason to argue duress but not "substantial domination," which the Commonwealth has conceded is slightly easier to prove. We will therefore assume that Sorrentino's failure to mention "substantial domination" was deficient performance for purposes of the first prong of Strickland.14

For purposes of the second, prejudice prong of Strickland, however, we must consider the likely strength of the "substantial domination" argument, had it been presented by counsel who knew to make the argument. In determining whether a competent argument would have swayed the jury, we must bear in mind that the jury heard a more than competent and very similar argument on "duress" and still returned a death verdict.

We believe that there was sufficient evidence for the jury to find "substantial domination" (and mitigating but not exculpatory duress, for that matter). Frey testified during the guilt phase that Zehring had continuously threatened him and his family and that he paid Zehring several times not to harm them. Frey said that he did not go to the police because Zehring had specifically threatened harm if he did so. He particularly described one incident where a raging Zehring, who at over six feet and about two hundred pounds was apparently much larger than Frey, had shone a flashlight in his face, brandished a gun, and threatened to kill him. The guilty verdict suggests, however, that the jury found much of Frey's trial testimony incredible.

Of course, the jury did not necessarily disbelieve Frey's version of events completely. Indeed, the prosecution primarily relied upon, and the jury most likely believed, Frey's earlier statements to the police. In one portion of his taped confession, which was played for the jury during the guilt phase, Frey stated that he decided to do what Zehring had suggested that he do--"waste" his wife. Tr. 697. In another portion of the statement, set out in the margin, Frey stated that he feared Zehring and that Zehring had threatened to kill him if he spoke to the police.15

Other evidence was adduced that Zehring was a scary, domineering person, while Frey was susceptible to domination. As to Zehring, several witnesses testified that Zehring was a strange man who had a fetish for weapons and often made threats. The jury could also have credited (at least partially) the testimony of Zehring's fellow inmates that Zehring was crazed and had boasted in jail that he was extorting money from Frey and intended to kill him. As to Frey, the expert witness Wittmaier had testified that Frey was of low-average intelligence, tended to be submissive, that he did not defend himself well, and that he expressed himself poorly. The jury could have concluded from Wittmaier's opinion testimony that Frey, although not particularly psychologically abnormal and therefore responsible for his own actions, was likely to go along with the suggestions of others, such as Zehring. In short, there was considerable evidence that although Frey was a voluntary participant, Zehring was the dominating force in the conspiracy.

On the other hand, there was also strong evidence against a finding of "substantial domination" (and mitigating duress). Most powerful was the testimony of Bowers that, months before the murder, Frey had expressed an independent inclination to kill his wife. Moreover, Frey had arranged the murder of his wife of over twenty years, and the discussions of her murder transpired over a long period. The jury could easily have concluded that even a submissive man does not easily arrange the murder of his wife simply because an acquaintance suggests it. And while it is possible that "substantial domination" can endure for months, given Frey's mature age and only slightly abnormal psychological profile, the jury may have found that most unlikely, particularly since his wife (and the mother of his children) was the victim.

Furthermore, as the Commonwealth observes, the evidence of "substantial domination" was argued, although not as such. Both sides incorporated all the evidence from the guilt phase into the immediately following penalty phase, and Sorrentino argued much of the evidence of "substantial domination," albeit in urging a finding of "duress."16 Although neither party mentioned "substantial domination" in its summation, the trial judge did in his jury instructions, and we must assume that the jury considered the evidence in light of its instructions. No doubt Frey's representation would have been stronger had Sorrentino recounted the evidence of "substantial domination" as such and dovetailed it into the statute. But his error was essentially one of mislabeling arguments that supported both "substantial domination" and mitigating duress, factors listed together in the statute, as supporting only the latter.17

Frey's theory of prejudice appears to be that the jury actually found neither "substantial domination" nor mitigating duress, but, with proper argumentation, it would have found "substantial domination."18 To make that fine distinction, the jury would have to have disbelieved that Zehring threatened force against Frey and his family, but still believed that Zehring exploited Frey's psychological susceptibility to domination. Such an interpretation was certainly possible, but unlikely. Moreover, we find it even less likely that, if the jury so found, it failed to credit Frey's psychological weaknesses either under the rubric of "substantial domination" or as part of its consideration of the character of the defendant and the circumstances of the case. Therefore, even if Frey is correct in how the jury interpreted the evidence, we highly doubt that Sorrentino's labeling error had any significant effect on the jury's decision.19

Failure to Argue Heberlig's Life Sentence

Frey also strongly urges that Sorrentino was deficient in failing to advise the jury that the triggerman, Heberlig, had received a life sentence just the week before. Frey contends that such evidence was admissible under the miscellaneous mitigating circumstances provision in the Pennsylvania statute, 42 Pa.Cons.Stat.Ann. § 9711(e)(8), or as a matter of federal constitutional law. He also suggests that he was significantly prejudiced by that failure because Heberlig's life sentence was later argued to Zehring's sentencing judge, who sentenced Zehring to life imprisonment.20 Blending its arguments on the two prongs of Strickland, the Commonwealth suggests that Heberlig's sentence was irrelevant and inadmissible, and that even if it had been admissible, arguing Heberlig's sentence may have backfired on Frey.

The parties spend much of their briefs disputing whether Heberlig's sentence would be admissible as a matter of present law. As a matter of Pennsylvania law today, codefendants' sentences may be excluded.21 It remains less clear whether the federal constitution (specifically the Fifth, Eighth, and Fourteenth Amendments) requires that codefendants' sentences must be admitted as mitigating evidence in a death penalty hearing.22 We do not need to address that issue here, however.

We deal not with an attack on a trial court's refusal to admit such evidence, but with a claim of ineffective assistance of counsel for failure to attempt to introduce such evidence. Under Strickland, the initial questions here are thus whether any competent defense counsel would have attempted to argue Heberlig's sentence in 1980, and if so, whether prejudice was "reasonably probable"--whether the evidence would have been admitted then and whether the jury would likely have been significantly impressed by that argument. Only if the answers were yes would we need to decide what the law is today.23

In 1980, the law was, as it is now, unclear whether a coconspirator's sentence was admissible. We will assume that competent defense counsel would not have refrained from offering such evidence based solely on doubts about admissibility. Such doubts might have played a role, however, in counsel's decision. More to the point, competent defense counsel in Frey's case would also have considered whether introducing Heberlig's life sentence would help Frey, and in this case that was debatable.

Heberlig was the triggerman, but in many other ways he was less culpable than Frey. Heberlig was a latecomer to the conspiracy who panicked and shot the victim when events did not go as planned. In contrast, the jury might have concluded that Frey was a cold-blooded conspirator involved from the beginning. On that view, if Heberlig deserved life imprisonment, the jury might have concluded that Frey deserved much worse. We conclude that reasonable counsel could well have differed about whether mention of Heberlig's sentence would have helped Frey.

At all events, because Heberlig's actions were not very similar to Frey's, we conclude that the argument, even if it had been attempted, and even if it had been allowed by the trial judge (which is questionable24), would not have swayed the jury much if at all. Moreover, although Frey correctly notes that the Heberlig and Frey sentences were introduced at the Zehring sentencing hearing by way of stipulation, there is no evidence that Zehring's sentencing judge took that factor into account. Far more important in Zehring's case were his disturbed mental state and his cooperation with authorities. We therefore do not consider Heberlig's sentence to be a significant mitigating factor that could help sustain the district court's conclusion of prejudicial ineffective assistance of counsel.

Failure to Argue Other Miscellaneous Mitigating Circumstances

Finally, Frey contends that Sorrentino should have focused the jury's attention on a variety of other possible miscellaneous mitigating circumstances related to Frey's personal background. These factors, which were adverted to during the guilt phase, include the tragic story of the 1977 death of Frey's son in an automobile accident, his ensuing impotence, and the partially related deterioration of his marriage; his somewhat low IQ and psychological weaknesses; and his good work record. All of this was undoubtedly admissible during the penalty phase as "other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense." 42 Pa.Cons.Stat.Ann. § 9711(e)(8).

Although Sorrentino mentioned some (though not all) of these factors in his closing argument during the penalty phase, he also told the jury that the only pertinent mitigating circumstances were age and duress. Instead of arguing these factors as independent mitigating circumstances, he attempted to shoehorn them into proof of duress (a finding of which he incorrectly believed would automatically save Frey's life).25 While failure to focus upon every single detail as a separate mitigating factor would not have constituted substandard performance, under the circumstances of this case, we will assume that Sorrentino's failure to argue any "miscellaneous" mitigating circumstance as such was deficient performance.

As with the lack of a prior criminal record, however, the jury was reminded of most of this information during the sentencing phase, and the trial judge properly instructed the jury that this sort of information should weigh in the balance of aggravating and mitigating factors. More precise argumentation may have helped Frey somewhat, but standing alone this would be an insufficient showing of prejudice. This "miscellaneous" factor does not stand alone, however, so we turn to consideration of all the ineffectively argued mitigating circumstances, as weighed against the aggravating factor of contract murder. See note 12.

C. Weighing the Aggravating and Mitigating Factors

In Pennsylvania, if a penalty phase jury finds at least one aggravating and one mitigating circumstance (as it did in Frey's case), it may only impose the death penalty if it unanimously finds that the aggravating circumstances outweigh the mitigating circumstances. 42 Pa.Cons.Stat.Ann. § 9711(c)(1). If the jury is deadlocked, the sentence must be life imprisonment. Id. For Frey to show sufficient prejudice, then, he must show a "reasonable probability" that, if he had had effective assistance, at least one juror would have decided differently and held out for a verdict of life imprisonment.

A reasonable juror would have had to find that Frey had no significant prior criminal history, for the Commonwealth conceded that. We have also concluded above that a reasonable juror could have, although could easily not have, found that Zehring "substantially dominated" Frey. A reasonable juror might also have considered various of Frey's personal circumstances (such as his psychological/intellectual profile, past family traumas, and so forth) as mitigating circumstances. But, in light of the guilt phase verdict (which is not challenged here), the jury also had to conclude that the aggravating circumstance of contract murder was proven beyond a reasonable doubt. Frey does not and could not contend that effective defense counsel would have prevented the jury from finding the single alleged aggravating circumstance of contract murder, as the evidence of that fact was overwhelming.

Frey instead contends that the jury could easily have found at least three mitigating circumstances (even lumping all the miscellaneous factors into one), and thus that it is "reasonably probable" that the jury would simply have concluded that three is more than one and sentenced Frey to life imprisonment. Perhaps so, but we cannot accept that argument. Strickland instructs that in assessing what would have transpired we must presume that the jury would act according to proper legal instructions. 466 U.S. at 694-95, 104 S.Ct. at 2068. The statute requires a weighing of factors, not a subtraction exercise in a factual vacuum. We must therefore consider not only possible mitigating factors, as we have done above, but also the aggravating factor. In particular, we must consider, as the jury did, not simply the fact of contract murder, but its nature.

As the first degree murder verdict attests, this was a "willful, deliberate and premeditated killing." 18 Pa.Cons.Stat.Ann. § 2502(a), (d) (Purdon 1983). The discussions and planning took place over several months, and Frey was involved during the entire time. Bowers's testimony suggested that Frey quite voluntarily contracted for his wife's murder. The jury surely could not have ignored that Frey callously borrowed the money to pay for his wife's murder from his wife herself. And it must have recalled that Frey's motive for killing his wife was, by his own admission, purely financial, and that he showed little visible remorse despite the brutal way in which the murder transpired. In short, this was not a murder contracted in a fit of provoked anger, but a calculated business-like deal.

With these facts in mind, we simply cannot conclude that there is any "reasonable probability" that, with effective assistance of counsel, Frey's jury would have found that the balance of mitigating and aggravating factors tipped the other way. Sorrentino's misstatements about the statute were corrected. All the evidence was before the jury, which was properly instructed. The jury was reminded of Frey's lack of a criminal record and of his psychological/intellectual profile, and although Sorrentino did not argue "substantial domination" as such, he did argue essentially the same facts in support of the cognate theory of mitigating duress. After five and a half hours of deliberation (about the same amount of time that it took to determine guilt, and not a long period for a capital case), the jury concluded that the mitigating factors paled in comparison to the horrible nature of the contract killing.

Reviewing the record twelve years later, and aided by excellent advocacy by counsel for both sides, we see only a very remote possibility that that jury would have weighed the facts differently had Sorrentino argued the same facts to prove slightly different legal points. We recognize that our legal system depends critically upon defense counsel's effective advocacy, and in some cases, especially close cases, substandard marshaling of the evidence by defense counsel will be sufficiently prejudicial to warrant retrial. In our view, however, Sorrentino did a quite capable job of arguing the facts in Frey's favor, and this was not a case in which better labeling of legal arguments could reasonably likely have tipped the lay jury's balance away from a death verdict. Put another way, in the context of the entire case, Sorrentino's shortcomings, though highly unfortunate, have not "undermined [our] confidence in the outcome," Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

IV. CONCLUSION

The order of the district court granting the writ of habeas corpus to petitioner-appellee Roderick Frey will be vacated. The case is remanded to the district court for further consideration of issues raised in Frey's petition but not reached by that court.

*****

COWEN, Circuit Judge, dissenting.

Because I believe that Roderick Frey has demonstrated a "reasonable probability" that but for the unprofessional conduct of counsel, the result of the penalty phase would have been different, I would affirm the district court's order granting the writ of habeas corpus. Therefore, I respectfully dissent.

As the majority concedes, defense counsel's reading from and reliance on a death penalty statute which had been declared unconstitutional three years earlier constitutes substandard performance and thereby satisfies the first prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The sole issue in this case is whether this error resulted in "prejudice" sufficient to satisfy the second prong of the Strickland test. It should be stressed at the outset that the Court in Strickland rejected an "outcome-determinative standard" under which a petitioner would have to prove by a preponderance of the evidence that the result would have been different had the petitioner been provided reasonably effective representation. Id. at 693, 104 S.Ct. at 2067. Instead, the Strickland Court defined a "reasonable probability" of a different outcome as "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. The majority fails to accept the most obvious fact of this case: that had Frey been represented by even moderately competent counsel, a legitimate and compelling argument would have been advanced on the penalty phase why life imprisonment was appropriate. The jury never heard an effective or legally correct argument from the attorney for Frey (Frey's "champion") why Frey should not suffer death. The Court in Strickland also cautioned that "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069. Unlike the majority, I cannot accept as fair a jury verdict of death when the defendant was represented by an attorney who labored under a long amended law, and where the law presently available afforded numerous and cogent arguments which could have been advanced in favor of a sentence of life imprisonment instead of death.

The majority concludes that no reasonable probability of a life sentence existed, finding that the jury was not "confused" by counsel's error and the jury would in all likelihood have reached the conclusion it did even if counsel had based his penalty phase presentation on the correct statute. I disagree with both of these premises.

As an initial matter I note the obvious: a jury expects defense counsel in a capital murder case to at least be familiar with the correct and applicable death penalty statute. While it is true that the prosecutor knew the correct law and the court at the conclusion of summations instructed the jury on the correct statute, such knowledge by the prosecutor and instructions by the trial court cannot be presumed to have cured any confusion which unquestionably arose, as the majority seems to suggest. Instead, the conflicting instructions could only have added to the jury's confusion. And of commanding significance, which the majority does not appreciate or fails to grasp, a jury looks to defense counsel (not the prosecutor or the judge) for an argument and reasoning why the defendant should not suffer death. The jury does not listen to the prosecutor for an analysis of the evidence which is cast in a light most favorable to the defendant. Nor does the jury listen to the charge of the court for reasoning which would justify a sentence of life. The jury receives the court's charge as a neutral and objective statement of the law--not an argument for the defendant. Certainly, no jury is "tuned in" to why the defendant should be spared when the prosecutor is delivering his summation. It is obvious that the jury received no such message from the prosecutor in this case.

I do not agree with the majority's conclusion that no "prejudice" exists to satisfy the second prong of Strickland. I believe there is a "reasonable probability" that the outcome would have been different had counsel fashioned his penalty phase presentation in accordance with the correct statute. At the least, I do not have confidence in the death verdict which the majority has rationalized into a fair verdict.

As a general matter, such a gross error on the part of defense counsel may well have served to undermine the jury's confidence in the arguments which were made on Frey's behalf. It is difficult to imagine that such an error would not have at least some adverse impact on the jury's perception of defendant's counsel and Frey himself.

More specifically, I am deeply troubled by the simple fact that Frey's "advocate" did not advocate on his behalf. As the majority acknowledges, as it must, the prejudice question under Strickland is whether all of counsel's unprofessional errors, taken as a whole, undermine our confidence in the result. Had counsel here simply failed to mention one applicable mitigating factor, my confidence might not be so drastically undermined. But the error was not near so minor. While Frey thought he had an attorney "representing" him during the penalty phase, the net effect was no different than not being represented at all. I say this since it is the major inarticulated premise of the majority that it does not matter that Frey was not represented (or incompetently represented), since the prosecutor and judge effectively represented him.

Counsel for Frey geared his entire presentation around the erroneous premise that if one mitigating circumstance was found, a life sentence was automatic. The majority may be correct when it suggests that none of the mitigating factors, standing alone, was sufficient to outweigh the single aggravating factor. The problem with the majority's analysis, however, is that its focus is on each separate possible mitigating factor, how that factor might have been argued had counsel known it was available, and whether that particular factor would have been found to outweigh the one single aggravating factor. The majority spends just three pages discussing the impact that all of these numerous mitigating factors, taken together, might have had. The majority appears ready to concede (but it fails to do so) that had the proper statute been used by defense counsel the jury might well have concluded that three or more mitigating factors were present. However, the majority inexplicably surmises that "the jury concluded that the mitigating factors paled in comparison to the horrible nature of the contract killing." Maj.Op. at 369.

The majority's analysis cuts both ways. Its own argument as to the nature of the crime points up how critically important it was in this case for counsel to present the applicable mitigating factors as a whole and to argue that when added together and carefully balanced against the single aggravating factor, death was not the appropriate penalty. The problem, in short, was that while the jury may have been "told" by the prosecution and the court that other mitigating factors existed under the statute, no one ever attempted to persuade them that the sum total of those factors outweighed the one aggravating factor. As wisely noted by the district court, "the issue is not whether the jury was properly instructed as to the law, but whether petitioner received constitutionally adequate assistance of counsel in presenting his case to the penalty jury." Dist.Ct.Op. at 12. A state criminal trial judge instructing the jury that the statute required them to balance the factors, and a reasonably competent attorney for Frey arguing this point (while suggesting on which side the balance should weigh) are two completely different things.1 The majority fails to come to grips with the reality of how cases are decided in an actual courtroom setting: when the jury hears on summation an argument of the prosecution which is shortly validated by the trial judge, and an incorrect legal argument and no actual analysis by the defense attorney, the defendant's fate is sealed.

The facts of Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986) bear a marked similarity to those of the case presently before us. In Woodard, the defendant claimed his lawyer was constitutionally ineffective during the penalty phase of his murder trial because counsel failed to secure for his client the benefit of a new mitigating circumstance added to the Arkansas statute before Woodard's case was tried. The factor added to the statute which Woodard's counsel failed to present to the jury, although it was applicable, was lack of a prior history of significant criminal activity. The court found the omission "serious and important," noting that "[t]he whole question of the death penalty depends, under Arkansas law, on the jury's discretion in weighing aggravating and mitigating circumstances." Id. at 157.

Because "[a] finding of a mitigating circumstance should have been an important objective in Woodard's case, and the failure to seek the inclusion of this obvious mitigating circumstance certainly fell below the threshold of reasonably competent assistance," the court concluded that the first prong of Strickland was satisfied. Id. The court also found the error prejudicial under Strickland's second prong. The court based its conclusion as to prejudice, in part, on the fact that the first vote taken by the jury was seven to five.2 However, the court was clearly troubled by the magnitude of the error committed and concluded that "there is a reasonable probability, in the Strickland sense, that the outcome of the case would have been different had the jury known of this clearly applicable mitigating circumstance." Id. at 158.

Like the court in Woodard, I would conclude that the failure of counsel to present all of the applicable mitigating factors and to argue that they outweighed the single aggravating factor, was error resulting in prejudice sufficient to satisfy Strickland's second prong.

The sentencing stage of any case, regardless of the potential punishment, is "the time at which for many defendants the most important services of the entire proceeding can be performed." ABA Standards on the Administration of Criminal Justice, Sentencing Alternatives and Procedures § 5.3(e). The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of the trial.

Stanley v. Zant, 697 F.2d 955, 963 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).

In conclusion, I can think of few "errors" more egregious than defense counsel acting under a complete misapprehension of the applicable law at the penalty phase. The mistake most certainly "undermines [my] confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. Here, no arguments were made to the jury on the defendant's behalf as to applicable mitigating circumstances. In my view this deprived the defendant of the only chance he had for a sentence of life instead of death. Unlike the majority I think it is more than "theoretically possible," Maj.Op. at 350, that the jury would have sentenced Frey to life imprisonment if he had had effective assistance of counsel.

Frey is a loathsome and despicable human being. As the jury decided following the guilt phase of his trial, he surely deserves, at the least, to spent the remainder of his days in jail for the unconscionable crime he committed. But whether he should also suffer death has never been properly adjudicated by a jury which had the question competently and fairly placed in its hands. I would affirm the order of the district court granting a writ of habeas corpus.

*****

In the district court, Frey also challenged the adequacy of the proportionality review conducted by the Pennsylvania Supreme Court. Additionally, he raised constitutional challenges based on the alleged fact that murder defendants in Lancaster County who waive their right to a jury trial invariably receive life imprisonment, while juries tend to impose death sentences. The district court's opinion mentioned but did not reach these issues, and Frey may have raised others. The parties have not argued those issues before us, and we express no view on them

Apparently Zehring, with Frey's approval, made two separate attempts on Mrs. Frey's life. Zehring had originally arranged an attempt with another person (whose identity remains unknown), but that attempt failed when Zehring and his accomplice were unable to locate their victim. Mr. Frey also approved the second (successful) attempt. Because Frey's jury was never told of the first attempt, it is not relevant to our decision

The defense had earlier called several character witnesses, who had testified to Frey's reputation for telling the truth and being law abiding

Frey's duress defense at trial appears to have evolved. Frey claimed during the guilt phase that he made payments to Zehring, instead of going to the police, to prevent Zehring from hurting the Frey family. On that view, Frey never wanted his wife murdered. At the penalty phase, however, Frey's desire to have his wife killed had been established. The defense at that stage seems to have been that, at worst, Frey had gone along with Zehring's plan, and that Zehring had threatened Frey both before and after the murder to prevent Frey from backing out and going to the police

That subsection provides:

(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).

Frey has not cross-appealed the district court's conclusion that he received effective assistance of counsel during the guilt phase

The earlier statute read, in relevant part:

(d) Aggravating and mitigating circumstances.--If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment:

(1) Aggravating circumstances:

(ii) 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 be paid by another person for the killing of the victim.

(2) Mitigating circumstances:

(i) The age, lack of maturity, or youth of the defendant at the time of the killing.

(ii) The victim was a participant in or consented to the defendant's conduct as set forth in section 1311(d) of this title or was a participant in or consented to the killing.

(iii) The defendant was under duress although not such duress as to constitute a defense to prosecution under section 309 of this title (relating to duress).

Reprinted in note accompanying 42 Pa.Cons.Stat.Ann. § 9711 (Purdon 1982).

The statute in effect at the time of Frey's crime and trial read, in relevant part:

(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 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.

(d) Aggravating circumstances.--Aggravating circumstances shall be limited to the following:

(2) 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 be paid by another person for the killing of the victim.

(e) Mitigating circumstances.--Mitigating circumstances shall include the following:

(1) The defendant has no significant history of prior criminal convictions.

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

(3) 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.

(4) The age of the defendant at the time of the crime.

(5) The defendant acted under extreme duress, although not under such duress as to constitute a defense to prosecution under Pa.C.S. § 309 (relating to duress), or acted under the substantial domination of another person.

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

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

(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.

Pa.Cons.Stat.Ann. § 9711(c), (d), (e) (Purdon 1982) (subsequently amended in a manner not relevant here)

Pennsylvania's duress defense statute, 18 Pa.Cons.Stat.Ann. § 309 (Purdon 1983), which is derived from section 2.09 of the Model Penal Code, reads:

(a) General rule.--It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(b) Exception.--The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

The only statutory factors on which the trial court did not instruct were consent or participation of the victim and minor participation in the crime, 42 Pa.Cons.Stat.Ann. § 9711(e)(7), (8). Obviously, Frey's wife did not voluntarily participate in her murder, and Frey's participation was not minor, especially given what the jury necessarily found at the guilt phase

The sentencing verdict slip, which we have reproduced from Frey III, 554 A.2d at 31 n. 2, read:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Because the prejudice question under Strickland is whether all of counsel's unprofessional errors combined undermine our confidence in the result, we delay consideration of that ultimate issue until we have assayed all the arguments that Sorrentino should have made but did not make. We will, however, analyze the strength of Frey's case on each potentially mitigating factor as it would have been argued by competent counsel aware of the correct statute (not by the nation's finest defense lawyers). Then we will aggregate the defense's arguments on all the potentially mitigating factors and compare them to the prosecution's very strong case on the single aggravating factor of contract murder. Finally, we will assess whether it is reasonably likely that, if Frey had had proper assistance of counsel, the jury would have returned a verdict of life imprisonment

We have not discovered any Pennsylvania case discussing the difference between "substantial domination" and mitigating but nonexculpatory "extreme duress."

Frey also contends that Sorrentino's lawyering was deficient for not calling Zehring to the stand. In 1984, years after the trial, and in 1990 at the federal habeas hearing, Zehring testified in a sworn statement that he was the moving force behind the plot, and that he manipulated Frey as a puppeteer would a puppet

While it is certainly possible that, at Frey's trial, Zehring could have supported Frey's claims of substantial domination and duress, that was highly uncertain. Zehring's testimony came much later, at a time when he was assured of a life sentence, while at the time of Frey's trial, Zehring had yet to plead guilty. Sorrentino testified before the district court that Zehring's story has changed since the time of Frey's trial. Moreover, by all accounts, including the accounts of Zehring's fellow inmates who testified at Frey's trial, Zehring is a bizarre person. His credibility was and is questionable, especially as he admits that his current recollection of the events of 1979 is hazy due to his abuse of amphetamines.

Given the deference that we must accord trial counsel's strategic choices, we conclude that it was not substandard performance for Sorrentino to have concluded at that time that there was no way of knowing what Zehring would say, that Zehring's testimony on cross-examination might well hurt Frey's case, and hence that calling Zehring was too risky. For purposes of judging ineffective assistance, then, we place no weight on Zehring's subsequent statements.

Q. Did you meet with [Zehring] on the evening of the 7th [of November, the day before the crime]?

A. Yeah. He came to my residence.

Q. Do you recall what time that was?

A. Around eleven o'clock.

Q. Did Mr. Zehring threaten you in any way?

A. Yes.

Q. How was that?

A. He told me that if I would even talk to the police about this, I would get the same thing my wife got.

Q. What is your understanding of that?

A. That I'll be shot, too.

Q. Did he tell you how or who this would be done by--you would be shot, too?

A. Yes.

Q. What did he say?

A. He told me that the second party that was involved in this with him knows what I look like, they know where I work, they can get to me any time.

Q. Do you believe this to be true?

A. Yes.

Q. Do you have a fear of Mr. Charles Zehring?

A. Yes.

Q. And would you explain to me why you fear Mr. Zehring?

A. Because he might have me killed now.

Tr. 717-18.

It is not clear whether the conversation recalled in this excerpt took place before or after the murder. The murder took place early in the morning of November 8, 1979, and Frey was recalling a conversation of the evening of November 7. On the other hand, in his statement Frey repeatedly insisted that he did not know beforehand that his wife would be shot, and, on this theory, if he feared being shot, then the conversation with Zehring must have taken place after the murder.

The following is an excerpt from Sorrentino's closing:

Mr. Zehring is not a nice guy. Mr. Zehring through the Commonwealth's own witnesses and through the witnesses we produced was proved to you to be a man who always had guns, always had weapons, armed bombs, had books on anarchy, et cetera, made threats, people consider him a little crazy ...

Did Mr. Zehring coerce Mr. Frey in any way? Is this the situation where there was a sequence of events? You heard about the hiring and following of Mrs. Frey for two months. Was Mr. Frey suckered? Was Mr. Frey convinced maybe this was a good idea? Did it go along that kind of scenario? Is that what happened here?

I can't believe ... that Mr. Frey just suddenly decided to have his wife killed and went to Mr. Zehring and said here is some money, kill my wife. I don't believe that at all. I think there was duress in this case. I think when Mr. Frey tells you that he was threatened, he was threatened. Whether he was threatened before or after he paid the money or for what purpose he paid it, he was threatened. He was threatened before Mrs. Frey was killed. When he tells you that one morning in the Turkey Hill parking lot Mr. Zehring appeared with black all over his face and a sweatshirt and held a gun and a flashlight in his eyes, that is a threat. That is coercion. That is duress. It was verified by the Lancaster County prisoner[s].

The psychologist told you about Mr. Frey and what kind of man he is. He has a 91 I.Q. He is not a super intelligent person. He is not someone who, I don't think, could coldly and calculatingly do this kind of thing without some kind of pressure from another source. I suggest to you again the pressure was from Mr. Zehring and that this thing took a sequence of events. It wasn't as if Mr. Frey went over to Mr. Zehring and said here is $5,000, kill my wife. That is not what happened. The payments were spora[d]ic payments and the Commonwealth cannot refute that. This thing took a course of action, it went along, and it got more serious, more aggravating, as it went along.

But there was duress. And that is all that is required in this proceeding. If you believe that Mr. Zehring coerced, threatened, placed Mr. Frey under duress prior to the death of Barbara Jean Frey, that is enough. He is entitled to be in prison for the rest of his life. But he doesn't deserve the death penalty.

Tr. 1377-80.

This conclusion is not surprising because, as noted above, on these facts the two defenses were very similar. We have observed that the only relevant difference may be that mitigating duress requires an element of force, whereas force may be unnecessary for a "substantial domination" claim

We know only that the jury found at least one mitigating circumstance. We do not know which mitigating circumstances the jury found. The box that the jury checked on the verdict form required it only to list the aggravating circumstances, not the mitigating circumstances. See note 11. If the jury actually found mitigating duress or "substantial domination," Frey would have suffered no prejudice from the failure to argue "substantial domination."

Frey argues that the reference to "duress" was harmful because the jury had rejected duress as a defense to the conviction. But Sorrentino properly spoke of "duress"--even the correct statute uses the term. We believe that the jury properly understood that the issue was being resubmitted to the jury for a different purpose and with a slightly different standard--as a factor, among many, to help determine the appropriate penalty, rather than as an absolute defense to guilt. Moreover, as we observed in note 4, the duress defense during the sentencing phase was somewhat different as a factual matter from the duress defense during the guilt phase

In our view, the only danger in speaking solely of "duress" was that the jury might have equated "substantial domination" and "duress." But as we noted in the text, the difference between the two was not great, and even if the jury failed to focus on "substantial domination," it was entitled to consider Frey's psychological weaknesses as a mitigating personal characteristic.

Because Zehring was sentenced to life imprisonment long after Frey's trial, Sorrentino obviously could not have raised Zehring's sentence. Zehring's sentence may have been relevant in the post-trial proportionality review required by Pennsylvania law, but the district court did not reach Frey's claim regarding the proportionality review, and it is not before us. Zehring's sentence concerns us here only because Frey argues that Heberlig's sentence made a difference in Zehring's sentencing, and so could also have made a difference in Frey's case

The Pennsylvania Supreme Court held in Frey's own case that

[s]entencing is a highly individualized matter, and we have already ruled that the cases against appellant's co-conspirators are not similar to appellant's case for purposes of proportionality review. [Frey I ], 504 Pa. at 444-45, 475 A.2d at 708. The sentence received by a co-conspirator is not a mitigating circumstance as to appellant's role in the crime.

Frey III, 554 A.2d at 33. See also Commonwealth v. Haag, 522 Pa. 388, 562 A.2d 289, 298 (1989) (approving trial court's ruling that jury would not be apprised of acquittal of one codefendant and life sentence of another).

In Lockett v. Ohio, a plurality of the Supreme Court took the view that the Constitution requires that the sentencer in a capital case be permitted to consider "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 of death." 438 U.S. 586, 606, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978). That view became the majority view in Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982). The Court has reaffirmed that holding numerous times since then, notwithstanding criticism, most vociferously from Justice Scalia, see Walton v. Arizona, 497 U.S. 639, 649-58, 110 S.Ct. 3047, 3058-68, 111 L.Ed.2d 511 (1990) (Scalia concurring). The Court has also broadly defined what is relevant to character, record, and circumstances of the crime. As long as any reasonable juror might use evidence in support of a life verdict, the court must admit it. McKoy v. North Carolina, 494 U.S. 433, 436-438, 110 S.Ct. 1227, 1231-34, 108 L.Ed.2d 369 (1990)

On the other hand, the Court has never ruled directly upon the relevance of codefendants' sentences. In Parker v. Dugger, --- U.S. ----, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991), Justice O'Connor's majority opinion noted in passing that, pursuant to both Florida and federal law requiring consideration of all mitigating evidence, the Florida trial court had admitted evidence that none of Parker's accomplices had received a death sentence. Id. at ----, 111 S.Ct. at 736. The Court's holding, however, did not turn on that point. The Court has held that state appellate courts need not compare a defendant's sentence to those of others convicted of similar crimes, Pulley v. Harris, 465 U.S. 37, 43, 104 S.Ct. 871, 875-76, 79 L.Ed.2d 29 (1984), but the issue there was not admissibility of evidence before a sentencing jury and did not focus on coconspirators' sentences in particular.

The state and lower federal courts have split. One line of cases considers codefendants' life sentences relevant, albeit with little discussion why. See, for example, Brookings v. State, 495 So.2d 135, 142-43 (Fla.1986) (jury may compare sentences of those culpable of same crime, but not sentences of those guilty of lesser crimes); People v. Gleckler, 82 Ill.2d 145, 44 Ill.Dec. 483, 492-95, 411 N.E.2d 849, 858-61 (1980) (vacating death sentence partly based on life sentence given to accomplice); State v. McIlvoy, 629 S.W.2d 333, 341-42 (Mo.1982) (death sentence disproportionate to crime where defendant was weakling and follower of another defendant who had received life sentence).

Another line of cases holds that accomplices' sentences may be excluded because not material to the defendant's character or record or to the circumstances of the defendant's crime, and because the same logic might require admission of coconspirators' death sentences. See, for example, Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir.1986); People v. Dyer, 45 Cal.3d 26, 69-71, 246 Cal.Rptr. 209, 234-36, 753 P.2d 1, 26-27 (1988); State v. Williams, 305 N.C. 656, 686-87, 292 S.E.2d 243, 261-62 (1982); Brogie v. State, 695 P.2d 538, 546-47 (Okla.1985); Johnson v. State, 477 So.2d 196, 218 (Miss.1985), rev'd on other grounds, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).

It would make no sense to require resentencing on this basis if the trial court on resentencing could, based on the law today, properly exclude the evidence of coconspirators' sentences

Introduction of Heberlig's sentence may have required considerable additional testimony regarding Heberlig's role. The jury may not have known the details of Heberlig's role in the offense: the parties barely mentioned Heberlig, referring to him only as "Mr. X" and instead focusing on the roles of Zehring and Frey. Thus, even if the trial judge had not anticipated the Pennsylvania Supreme Court's later holdings and considered Heberlig's sentence legally relevant, he may have desired to exclude it on the ground that it would distract the jury

The relevant portion of the closing argument was as follows:

Let's talk about Mr. Frey.

When we talk about duress, you have to consider the person you are judging first. I am not going to belabor it. You have heard it.

Mr. Frey is forty-three years old. He has no prior record. He has children. He has a family. You have seen some of them on the stand. He has worked consistently through his entire life.

His intelligence, his background, his demeanor, his personality, is not consistent with this crime. And I suggest to you that even if you believe that he was involved in this crime, and obviously you do or you wouldn't have convicted him, there had to be duress and there had to be duress in view of the other testimony you heard in the case.

Tr. 1376-77. Sorrentino then launched into an extended discussion of Zehring's coercion of Frey and of Frey's susceptibility thereto. That portion of the summation is quoted in note 16. At no point in his summation did Sorrentino mention the death of Frey's son in an automobile accident, although mention of that fact may have been unlikely to elicit sympathy, given that Frey chose to have his wife killed in a staged automobile accident.

Moreover, in assessing the possible prejudice which may have resulted from counsel's error as to the applicable law, we must examine counsel's performance as a whole at the penalty phase. See King v. Strickland, 714 F.2d 1481, 1491 (11th Cir.1983), vacated on other grounds, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984); Mathis v. Zant, 704 F.Supp. 1062, 1064 (N.D.Ga.1989) (typically, ineffective assistance is shown through combination of weak closing argument and failure to present mitigating evidence). The majority concludes that counsel's "defense of Roderick Frey at the death penalty phase was an undeniably powerful and emotional presentation by a skilled advocate." Maj.Op. at 358. I do not agree. The general weakness of counsel's closing must be considered in conjunction with the total and appalling failure to present and argue applicable mitigating factors. How the majority can characterize an argument as "powerful and emotional" when the argument is not even addressed to the law which the jury will shortly hear charged by the trial judge completely escapes me

It took the jury in this case five and a half hours to return its verdict following the penalty phase. While the majority states that this is a notably short period of time, I would point out that the timing suggests that the vote was not unanimous the first or even the second time around

132 F.3d 916

Roderick Herman Frey, Appellant,
v.
Thomas A. Fulcomer, Warden, State Correctional Institutionat Huntingdon

United States Court of Appeals, Third Circuit.

Argued Dec. 17, 1996.
Decided Dec. 30, 1997

Before: BECKER, ROTH, and McKEE, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge .

This is an appeal by Roderick Frey, who was convicted by a Pennsylvania state court jury of murder in thefirst degree and was sentenced to death, from a final order of the district court denying his petition for a writ of habeas corpus. Frey's appeal requires us to consider whether the jury charge at the penalty phase of his trial violated the Eighth Amendment as construed in Mills v. Maryland , 486 U.S. 367 (1988) and McKoy v. North Carolina , 494 U.S. 433 (1990). These cases hold that a death sentence should be vacated if the jury, upon receiving the judge's instructions, may have thought that it could only consider those mitigating factors which it unanimously found to exist. Because we conclude that the charge was reasonably likely to have had that effect, we will reverse the order of the district court and direct it to grant a conditional writ of habeas corpus permitting Pennsylvania to conduct a new sentencing proceeding or to sentence Frey to life imprisonment.

I. Facts and Procedural History

The following are the basic background facts. A fuller factual history is set forth in our opinion on Frey's previous appeal on different issues, see Frey v. Fulcomer , 974 F.2d 348, 351-56 (3d Cir. 1992) (" Frey I ").

Roderick and Barbara Frey were married in 1956. By 1979, they were experiencing difficulty in their marriage and spoke of divorce. Financial difficulties and the death of their son in an automobile accident two years earlier had contributed to their marital discord. Frey apparently also had engaged in extramarital affairs. Frey worked as a truck driver for the Turkey Hill dairy chain. His job brought him into contact with Charles Zehring, the manager of a Turkey Hill convenience store, whom the Pennsylvania Supreme Court later described as suffering from mental illnesses, including paranoid schizophrenia. See Commonwealth v. Frey , 475 A.2d 700, 702 (1984). By mid-1979, Frey had begun discussing with Zehring his marital difficulties, as well as his concerns about the financial strain that would be caused by a divorce. Zehring suggested as a solution that Frey arrange to have Mrs. Frey killed in a manner that made her death appear accidental.

In October 1979, Barbara Frey sued Frey for divorce, and he moved out of their home. Around the same time, Frey and Zehring finalized an arrangement whereby Frey agreed to pay Zehring five thousand dollars to kill his wife. Frey financed the deal by borrowing the money from Barbara against their expected property settlement. On November 8, 1979, Frey arranged to meet Barbara early in the morning at the Turkey Hill convenience store where she worked. Frey then passed along information to Zehring about her schedule and likely route to the store. In the meantime, Zehring, in exchange for five hundred dollars, enlisted the assistance of Richard Heberlig. Though Heberlig was initially led to believe that he would only be assaulting the intended victim, he became aware, on the morning of November 8, that murder was in fact planned.

Zehring and Heberlig set out at four a.m. on November 8 to locate and kill Barbara Frey. Posing as police officers, they pulled her car over to the side of the road and approached her. Their plan at that point was to beat Mrs. Frey into unconsciousness and then stage an auto accident as their cover. When she did not lose consciousness, Heberlig panicked and shot her in the chest. After the shooting, they moved Mrs. Frey's car to a nearbyfield where they failed in an attempt to set the car onfire. Frey subsequently paid Zehring the balance of the money he owed for the contract killing.

Barbara Frey's body was discovered by a passerby later that morning. On December 6, 1979, Frey confessed to the murder. Zehring and Heberlig were subsequently arrested, and all three men were charged with murder and conspiracy. Zehring and Heberlig pled guilty and received sentences of life imprisonment.

Despite an earlier confession, which he later recanted, Frey opted to stand trial before a jury. The defense called as a witness a psychologist who testified to Frey's low-to- normal IQ, his basically submissive personality, his minimal tendency to defend himself, and his risk averse nature. The defense proceeded to argue that Zehring had threatened Frey, and that Frey had paid Zehring the five thousand dollars as extortion money in an effort to protect his family. The jury was apparently unconvinced by the story, for it found Frey guilty of murder in thefirst degree.

A sentencing hearing followed immediately. After counsel for both Frey and the Commonwealth had presented their arguments, the court instructed the jurors on how they were to assess the evidence before them in order to decide whether Frey was to be sentenced to life imprisonment or to death. Part of that deliberative process involved consideration of the aggravating and mitigating circumstances in Frey's case, and the state trial judge gave the following instruction:

[T]he 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. The verdict must be a sentence of life imprisonment in all other cases.

App. at 286.

The judge then told the jury that there was only one relevant aggravating circumstance (contract murder) but that there were six possible mitigating circumstances: Frey's lack of prior convictions; the influence of mental disturbance; impairment of the ability to appreciate the criminality of the act; youth or advanced age; duress or substantial domination by another person; and any other circumstances that they, as jurors, would consider relevant. Finally, the judge instructed the jury that the Commonwealth must prove aggravating circumstances beyond a reasonable doubt, but that the defense need only prove mitigating circumstances by a preponderance of the evidence.

On May 15, 1989, after five and one-half hours of deliberation, the jury returned a sentence of death. Following his sentencing, Frey retained new counsel and appealed his conviction and sentence to the Pennsylvania Supreme Court, which affirmed. See Commonwealth v. Frey , 475 A.2d 700 (1984). In that appeal Frey raised several arguments, including a claim that his sentence was disproportionate relative to the life sentences given to his accomplices. The Pennsylvania Supreme Court held that the cases of Zehring and Heberlig were not "similar" for purposes of the proportionality review required by 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (Purdon 1982).

In July 1984, Frey petitioned for relief under Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. § 9543(3)(xiii) (Purdon 1982) alleging exculpatory after-discovered evidence -- statements made by Zehring while in prison evidencing Zehring's domination of Frey. The Court of Common Pleas denied Frey's motion, and the Pennsylvania Supreme Court affirmed. See Commonwealth v. Frey , 517 A.2d 1265 (1986). The Supreme Court held that Frey could have elicited this evidence during the guilt phase of the trial, and, at all events, that a different verdict was unlikely.

Frey again petitioned under Pennsylvania's Post Conviction Hearing Act on various other theories, including ineffective assistance of counsel. Both the Court of Common Pleas and the Pennsylvania Supreme Court rejected Frey's claims, holding, inter alia , that Frey had suffered no prejudice from his counsel's failure to accurately state the law regarding mitigating circumstances to the jury at sentencing. See Commonwealth v. Frey , 554 A.2d 27 (1989). In this petition Frey also contended that the jury charge at the penalty phase of his trial violated Mills . This argument was also rejected. See 554 A.2d at 30- 31.

His state court remedies exhausted, Frey then turned to federal court. In March 1991, he filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254 (1988), in the District Court for the Eastern District of Pennsylvania. Although the district court denied the petition with respect to all guilt phase issues, it found that Frey had received ineffective assistance of counsel at the penalty phase and was prejudiced thereby, and that the court had improperly admitted certain testimony at that stage of the proceedings as well.1 Accordingly, the district court granted Frey a writ of habeas corpus, without prejudice to the Commonwealth's right to resentence Frey to life imprisonment, or alternatively, to conduct further proceedings.

The Commonwealth appealed to this court, and on July 10, 1991, we vacated the district court's grant of habeas corpus relief. See Frey I . We held that although performance of defendant's trial counsel was deficient at the penalty stage, habeas relief was not appropriate under the test of Strickland v. Washington , 466 U.S. 668 (1984), since it was not reasonably probable that the jury would have sentenced Frey to life imprisonment rather than death had Frey been afforded effective assistance of counsel.2 We also held that Frey was not denied due process by the admission of the Bowers' testimony. We remanded the matter for further reconsideration of other issues raised by Frey's habeas petition. In October 1995, after an additional hearing and supplemental briefing, the district court denied the petition.

Frey now appeals the order of the district court denying his petition for habeas corpus relief, raising a host of legal issues. However, as noted in the margin, only the question whether the jury charge at the penalty phase impermissibly required the jury to unanimously find the existence of mitigating circumstances in violation of the Eighth Amendment warrants extended discussion.3 Our review of this legal issue is plenary. See Frey I , 974 F.2d at 356.

II. The Jury Charge

Frey challenges his sentence on the ground that the jury charge at the penalty phase of his trial violated the Eighth

Amendment as construed by the Supreme Court in Mills v. Maryland , 486 U.S. 367 (1988) and McKoy v. North Carolina , 494 U.S. 433 (1990). More specifically, Frey contends that the charge impermissibly led members of the jury to believe that a particular mitigating circumstance could not be considered unless there was unanimous agreement regarding proof of that circumstance.

The Commonwealth counters that there is "no likelihood that a reasonable juror could have concluded that they were prohibited from considering the mitigating evidence that they found to exist and that was supported by proof of a preponderance of the evidence," and thus, the Commonwealth argues, the trial court's charge did not suffer from the deficiencies animating Mills and McKoy . In addition, the Commonwealth contends that we considered the same issue in Zettlemoyer v. Fulcomer , 923 F.2d 284 (3d Cir. 1991), and that our approval of the jury charge in that case should control our decision here.4

A. The Mills - McKoy - Boyde Standard

Under the Supreme Court's current construction of the Eighth Amendment, the sentencer in a death penalty case must be permitted to consider all relevant mitigating evidence that the defendant proffers as counseling less than a sentence of death. Eddings v. Oklahoma , 455 U.S. 104 (1982); Lockett v. Ohio , 438 U.S. 586 (1978). Accordingly, it is well established that the sentencer cannot be precluded from considering any such evidence. Skipper v. South Carolina , 476 U.S. 1 (1986); Eddings , 455 U.S. at 114 . The source of this preclusion is irrelevant; whether its source is statutory ( Lockett ), the sentencing court ( Eddings ), or an evidentiary ruling ( Skipper ), the result is the same.

In Mills , the Supreme Court relied on these precedents to conclude that a death sentence should be vacated if there is a substantial probability that reasonable jurors, upon receiving the judge's instructions and attempting to complete the verdict form based on those instructions, may have thought that they could only consider those mitigating factors which they unanimously found to exist. Put differently, if the jurors were led to believe that they could not each individually consider certain mitigating circumstances because there was not unanimous agreement as to the existence of those circumstances, then "some jurors were prevented from considering factors which may call for a less severe penalty, and petitioner's sentence cannot stand." Id. at 376 (internal citations omitted). See also Zettlemoyer v. Fulcomer , 923 F.2d 284, 306-07 (1991) (discussing Mills ).

The "intuitively disturbing" hypothetical scenario which Mills precludes is the following: All 12 jurors agree that some mitigating circumstances are present, and that those mitigating circumstances outweigh any aggravating circumstances. But since the jury cannot unanimously agree that the same mitigating circumstances are present, they would not be permitted to engage in any deliberation on the appropriateness of death versus life imprisonment. See Mills , 486 U.S. at 374 . Moreover, since Eighth Amendment jurisprudence requires that each sentencer be permitted to consider all mitigating circumstances, the Mills Court did not require proof of actual confusion. The Court reasoned that "[t]he possibility that a single juror could block such consideration [of a mitigating circumstance], and consequently require the jury to impose the death penalty, is one we dare not risk." Id. at 384. Thus, the Court required proof of only a substantial probability of confusion on this element of the charge.

Two years later, the Court reaffirmed the importance of Mills in McKoy v. North Carolina , 494 U.S. 433 (1990). In McKoy, the trial court similarly instructed the jury that it must unanimously find the existence of any mitigating circumstances in order to weigh those circumstances in the sentencing determination. Attempting to distinguish itself from the Maryland statute at issue in Mills , North Carolina argued that its death penalty sentencing scheme allowed the jury to recommend life imprisonment even if had found no mitigating circumstances. Id. at 438. The Court determined that this distinction did not cure the constitutional defect. Id. at 439. In sum, the essential holding of Mills - McKoy is simply that one juror cannot prevent the others from giving effect to mitigating evidence, regardless of whether the imposition of a life sentence depends on the existence of such evidence. See id. at 440.

Finally, in 1990, the Court clarified the legal standard for the review of jury instructions when the claim is that the instruction is ambiguous and open to an erroneous interpretation (as was the case in Mills ). In Boyde v. California , 494 U.S. 370, 380 (1990), the Court held that the proper standard in these cases 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." We note that the difference between the standard of review originally outlined in Mills and the standard ultimately adopted in Boyde is not purely semantic. Under the Mills "substantial probability" standard our focus was directed to how a single hypothetical juror might have reacted to the erroneous instruction. Under the Boyde standard, we are told by the Court, our focus should be on the reasonable likelihood that the entire jury applied the instruction in an improper manner. See Boyde , 494 U.S. at 380 . Thus, while our inquiry is directed toward whether the Frey instruction suffers from the same type of defect discussed in Mills (i.e. that the instruction could be read to require a unanimous finding of mitigating circumstances), our standard is that of Boyde , not Mills . See Zettlemoyer , 923 F.2d at 307.

B. The Zettlemoyer Charge

We have had occasion to apply the Mills - McKoy - Boyde analysis to a similar case. In Zettlemoyer , supra , we considered the propriety of the following instruction (which we set forth at length for purposes of comparison):

Again, if you find unanimously, beyond a reasonable doubt, the aggravating circumstance that I have mentioned, . . . that is an aggravating circumstance.

. . .

[Y]ou 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 circumstance or that the aggravating circumstance outweighs any mitigating circumstances.

923 F.2d at 307-08. We found that this instruction was not faulty under Mills . See id. at 308. We placed emphasis on the "if you unanimously agree and find" language reproduced above, and reasoned that it meant "only that the jury's ultimate conclusion must be unanimous, not that each interim step in its deliberations be unanimous." Id.

In other words, we found that the word "unanimously" in the latter part of the jury charge only modified the word "agree" in the sense that the instruction 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 circumstances or that the aggravating circumstance outweighs any mitigating circumstances. Accordingly, we concluded that the fact that the jury "must unanimously agree that the aggravating must outweigh the mitigating is not the same as unanimously agreeing that a mitigating factor exists." Id. This interpretation of the court's "agree and find" language was further suggested by other statements earlier in the Zettlemoyer jury charge. For example, the trial court had previously instructed the jury that:

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. 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 outweight (sic) the aggravating circumstances, then you must bring in a verdict of life imprisonment.

This instruction basically repeats the information presented to the jury in the instruction discussed above. It is notable, however, that this instruction provides the jury with the same decision calculus without the use of the term "unanimously". Additionally, this instruction refers to aggravating circumstances outweighing "any mitigating circumstance you may find". Taken together, this language supports our conclusion that Zettlemoyer 's later use of the term "unanimously" in the jury charge could not be said to support a reasonable likelihood that the jury believed it must unanimously agree on the existence of mitigating circumstances.

C. The Frey Charge

We turn to the jury instruction in the present case. The trial court charged:

Members of the jury, you must now decide whether this defendant should be sentenced to death or life imprisonment. The sentence will depend upon your findings concerning aggravating and mitigating circumstances. The Crimes Code provides that the 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. The verdict must be a sentence of life imprisonment in all other cases.

. . .

Remember that your verdict must be a sentence of death if you unanimously find at least one aggravating circumstances (sic) 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.

App. at 286-89. Although similar in many respects to the charge at issue in Zettlemoyer , there is also a significant and distinguishing dissimilarity here.

As noted above, the determinative question for our purposes is what the jury could have understood the charge to mean, and whether it is reasonably likely that that understanding would have precluded the jurors' independent consideration of any mitigating circumstances. Specifically, we must determine whether it is reasonably likely that the jury could have understood the charge to require unanimity in consideration of mitigating evidence. We need not determine whether the jurors did , in fact, understand the charge to require unanimity in consideration of mitigating evidence -- only whether it was reasonably likely. See Boyde , 494 U.S. at 380 ; Mills , 486 U.S. at 384 .

Examining the language of the jury charge, we must answer in the affirmative. First and foremost, read in its entirety, the relevant portion of the jury charge emphasizes the importance of a unanimous finding, using the phrase frequently and in close proximity to -- within seven words of -- the mitigating circumstances clause. We rescribe the relevant portion of the sentence: "if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance. . . ." Considering this close proximity -- the clause is, to the ear and to the mind, one sound bite -- it is quite possible that a juror would, regardless of other qualifying language, believe that mitigating circumstances had to be found unanimously. This conclusion is not inconsistent with our holding in Zettlemoyer (where the separation was by seventeen words, and not one sound bite). Moreover, as noted above, we found the Zettlemoyer instruction to require unanimity in the ultimate conclusion, and not in the interim findings leading to that conclusion. See Zettlemoyer , 923 F.2d at 308. This was because the Zettlemoyer trial court used the term "unanimously" to modify only the term "agree" in the subsequent phrase "agree and find". In the present case, the court did not instruct the jury to "fix the penalty at death if you unanimously agree and find ...," but rather instructed them to so fix that sentence "if the jury unanimously finds " (emphasis added). Thus, the unanimity language in the Frey charge could only modify the term "find," and hence the jury could reasonably have believed that unanimity was required in both its ultimate and interim conclusions, especially given the close proximity we have described. This possibility, not present in Zettlemoyer , violates Mills .5

Other parts of the Frey charge were more likely to increase the confusion rather than lessen it. As in Zettlemoyer , the Frey trial court made a point of instructing the jury on the relevant burdens of proof relating to both aggravating and mitigating circumstances. The court stated:

Now, 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. . . . 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 appropriate for you to consider.

App. at 288. It is what is not said here that is significant. Unlike Zettlemoyer , where the court specifically instructed the jury that aggravating circumstances must be proven "unanimously, beyond a reasonable doubt," the trial court here did not stress that the different burdens that attach to aggravating and mitigating circumstances also entail different unanimity requirements. A lay jury might plausibly conclude, therefore, that aggravating and mitigating circumstances must be discussed and unanimously agreed to, as is typically the case when considering whether a burden of proof has been met. Such an understanding, however, is plainly inconsistent with the requirements of Mills , and adds to our concern that the jury could have understood the charge to require unanimity in consideration of mitigating evidence.

In sum, we find that, in light of the emphasis placed in this charge on unanimous findings, its close proximity to the "mitigating circumstance" language, and the manner in which this charge deviates from the Zettlemoyer charge, it was reasonably likely that the jury could have believed that it was required to find the existence of mitigating circumstances unanimously before those circumstances could be considered in its deliberations. For that reason, the charge violates Mills .

D. The Verdict Slip

The Commonwealth correctly notes in its brief that the verdict slip used in Zettlemoyer was substantially the same as the verdict slip used in the present case. We also recognize that the court's charge in this case tracked the language set forth in that verdict slip. However, as noted above, the text of the charge in Zettlemoyer differed significantly from the one in the present case. Since Zettlemoyer considered the verdict form and the court's instructions as a whole in reaching its decision, see Zettlemoyer , 923 F.2d at 308 n.22, and since the charge here was significantly different, the discussion in Zettlemoyer regarding the propriety of the verdict slip is not controlling.

Moreover, as we noted in Zettlemoyer , subsequent to Frey's trial Pennsylvania adopted a uniform verdict slip for capital sentencing cases which expressly aims to eliminate the type of ambiguity at issue here. See Pa. R. Crim. P. 358A.6 While both Mills and Zettlemoyer expressed a hesitancy to "infer too much about the prior verdict form from the . . . well-meant efforts to remove ambiguity from the State's capital sentencing scheme," Mills also noted and inferred from such changes "at least some concern . . . that juries could misunderstand the previous instructions as to unanimity and the consideration of mitigating evidence by individual jurors." Mills , 486 U.S. at 382 . Although joint consideration of the constitutionally permissible jury charge and the verdict form in Zettlemoyer led us to the conclusion

that the amended form was not necessary to prevent a reasonable likelihood of jury error, such is not the case here. While we express no opinion on the constitutional necessity of any particular amendment to the verdict form, we do believe that the instruction and the verdict form in the present case taken as a whole are insufficient (and that use of the amended form may cure the defect).

E. Conclusion

Though we recognize that the interpretation offered by the Commonwealth is plausible, instructed by the teachings of Mills and its progeny that "[t]he possibility that a single juror could block such consideration [of a mitigating circumstance], and consequently require the jury to impose the death penalty, is one we dare not risk," id. at 384, we conclude that the charge in this case was ambiguous, reasonably likely to confuse the jury, and thus in error. Because we find that the jury could have understood the charge to preclude consideration of mitigating circumstances that were not agreed to by all twelve jurors, and because that creates a risk that the death penalty was imposed in spite of "factors which may call for a less severe penalty," we must direct vacatur of Frey's sentence. See id. at 376. We do so, however, without prejudice to Pennsylvania's right to sentence Frey to life imprisonment or to conduct a new sentencing hearing in a manner not inconsistent with this opinion.7

The order of the district court will be reversed with instructions to grant the writ of habeas corpus conditionally, with the proviso that Pennsylvania shall, within 120 days, conduct a new sentencing hearing in a manner not inconsistent with this opinion, or sentence Frey to life imprisonment.

A True Copy: Teste:

Clerk of the United States Court of Appeals for the Third Circuit 20

FOOTNOTES

1. The testimony at issue involved Sharon Bowers, an acquaintance of Frey's. Although not appearing at the guilt phase of the trial, Bowers testified at the sentencing phase that Frey complained often of his problems with Mrs. Frey, and that on one occasion in May or June of 1979 Frey told Bowers that "I would kill the son of a bitch [sic] if I knew I could get away with it."

2. As part of his alleged deficient performance at the penalty phase, Frey's counsel had based his arguments to the jury on a Pennsylvania death penalty statute that had been held unconstitutional three years earlier, largely because the statute improperly restricted the defendant's ability to argue mitigating circumstances to the jury. See Frey I , 974 F.2d at 350. We found that this was not prejudicial error in part because the trial judge properly instructed the jury as to which aggravating and mitigating factors to consider, as well as how the jury should balance those factors. See id. at 351. Although we stated at that time that the court "carefully" instructed the jury, and that the judge read "proper instructions" on how to weigh the aggravating and mitigating factors, the question whether the jury charge itself violated Mills - McKoy was not before us at that time and thus those earlier remarks are not controlling here.

3. Frey advances four other bases for relief. First, he once again raises an ineffective assistance of counsel claim. We considered this claim in Frey I , and determined that Frey was not prejudiced by the failings of his attorney. See supra note 2. But Frey now argues that O'Neal v. 7

II. The Jury Charge Frey challenges his sentence on the ground that the jury charge at the penalty phase of his trial violated the Eighth

McAninch , U.S. , 115 S.Ct. 992 (1995) creates a new standard for review of ineffective assistance of counsel claims and thus requires this court to reconsider the matter. We find this contention without merit and decline to reconsider Frey's ineffective assistance of counsel claim. In brief, O'Neal does not change the standard applicable to these types of claims; instead, it only requires that when a court is in "grave doubt" about the likely effect of an error on a jury's verdict, that court should not treat that error as harmless. See id. at 994; see also Yohn v. Love , 76 F.3d 508, 522 (3d Cir. 1996)(construing O'Neal ). Even assuming that this case would trigger an O'Neal analysis, this court did not indicate at any point in its prior opinion that it was in grave doubt about Frey's claim. Indeed, in Frey I we stated that counsel's "shortcomings, though highly unfortunate, have not undermined [our] confidence in the outcome." 974 F.2d at 369 (internal quotations omitted). O'Neal would not command a different result.

Second, Frey argues that the state trial court erred when it failed to instruct the jury that the defendant's age could be considered as a mitigating circumstance, in violation of both 42 Pa. Cons. Stat. § 9711(e)(4) (Purdon 1982), which provides that age can be a mitigating circumstance, and the Eighth Amendment. We find this argument to lack merit, and agree with the Pennsylvania Supreme Court which stated that, whereas youth and old age could be considered a mitigating circumstance, middle age -- Frey was 42 at the time he committed the crime -- could not. At all events, we note that the jury instructions clearly indicated to the jurors that they could consider any circumstances that they felt were relevant as mitigating evidence.

Third, Frey raises a claim regarding the alleged after acquired evidence. He submits that statements made by Zehring after Frey's sentencing was complete constitute after acquired evidence and thus merit a new sentencing hearing. Because we conclude that Frey's death sentence must be vacated and remand the matter for further proceedings, we need not reach this issue. Frey will have the opportunity to offer Zehring's statements as evidence. Should a question of admissibility arise in connection with these statements, that determination will be properly made by the trial court in the first instance.

Finally, Frey challenges the constitutionality of Pennsylvania's proportionality review under the 14th Amendment. For the same reason, we do not reach the merits of this issue. See infra at note 7.

4. We note at the outset that Frey's Mills challenge might be subject to the bar on retroactive application of new legal rules to cases on collateral review announced in Teague v. Lane , 489 U.S. 288 (1989)(plurality opinion). Under Teague , a case that announces a new legal rule after the defendant's conviction became final should not be applied retroactively unless the rule falls within one of Teague 's narrow exceptions. See also Sawyer v. Smith , 497 U.S. 227 (1990). Whether Teague would bar retroactive application of Mills is a close and difficult question upon which the circuits are split. Compare Williams v. Dixon , 961 F.2d 448, 459 (4th Cir. 1992)(holding that Mills survives Teague bar), with Miller v. Lockhart , 65 F.3d 676, 685-86 (8th Cir. 1995)(holding that Mills challenge is subject to Teague bar), and Nethery v. Collins , 993 F.2d 1154, 1162 (5th Cir. 1993)(same). We have not previously taken a definitive position on this debate. In Zettlemoyer we were confronted with this precise issue; although we decided to reach the merits of the Mills claim in that case, we did not expressly hold whether Mills falls outside the Teague bar. See 923 F.2d at 306 n.19. We also note that the district court for the District of Delaware, in a brief but thoughtful opinion, has concluded that Mills does not announce a"new rule" for Teague purposes. See DeShields v. Snyder , 829 F. Supp. 676, 687-88 (D. Del. 1993) (Farnan, J.).

At all events, we do not reach this issue here, as the Commonwealth has failed to raise it in its brief, and thus we deem the issue waived. See Williams , 961 F.2d at 459 (finding waiver). We therefore proceed to the merits.

5. Moreover, at no point did the Frey state trial judge make a statement clarifying each juror's right to consider mitigating evidence absent the agreement of fellow jurors, a factor noted in Kubat v. Thieret , 867 F.2d 351, 373 (7th Cir. 1989) ("Kubat's jurors were never expressly informed in plain and simple language that if even one juror believed that the death penalty should not be imposed, Robert Kubat would not be sentenced to death."); see also Kordenbrock v. Scroggy , 919 F.2d 1091, 1110 (6th Cir. 1990) (en banc) ("Because the jurors in this case were told that aggravating factors had to be unanimous, but were not told exactly what role mitigating factors play, it would have been reasonable for them to assume that mitigating factors had to be found unanimously as well."). While the absence of such an express statement is not dispositive, for such absence was not discussed in Zettlemoyer (which post-dated both Kubat and Kordenbrock ), we reference these cases to suggest one means by which the trial court could have clarified its instructions for the jury. The adoption by Pennsylvania of a uniform verdict slip, see infra at 17, supports this view.

6. The revised instruction provides, in part:

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):

. . . .

Pa. R. Crim. P. 358A (emphasis added).

7. As noted supra , Frey also contends that habeas corpus relief is appropriate on the grounds that the Pennsylvania Supreme Court's proportionality review was procedurally and substantively inadequate, and therefore in violation of Frey's due process rights. The Commonwealth rejoins that the proportionality review statute, 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii), does not create any cognizable liberty interest, and therefore cannot ground a due process claim. On this point it relies on Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex , 442 U.S. 1 (1979), and its progeny. In general, the Greenholtz line of decisions stands for the proposition that state-created liberty interests will be found when the state (1) establishes substantive predicates to guide official decisionmaking, and (2) uses explicit mandatory language in its regulations directing the decisionmaker to reach a particular outcome if the substantive predicates are present. See Kentucky Department of Corrections v. Thompson , 490 U.S. 454, 461-63 (1989). The Commonwealth maintains that the proportionality review mandated by the Pennsylvania Supreme Court does not meet this standard.

We note, however, that it is uncertain whether the United States Supreme Court would follow this approach, or indeed, how it would rule on this issue. Accord Ellis v. District of Columbia , 84 F.3d 1413, 1417 (D.C. Cir. 1996) (noting uncertainty regarding Supreme Court doctrine on state-created liberty interests). This is because the recent decision in Sandin v. Conner , -- U.S. --, 115 S.Ct. 2293 (1995), while not overruling any prior cases, see id. at 2300 n.5, sharply criticizes and effectively abandons the Court's prior methodology (as articulated in cases such as Greenholtz ) for determining the existence of a statutory liberty interest in the prisoner's rights context. See Ellis , 84 F.3d at 1417-18. Sandin holds that state-created liberty interests will be limited to "freedom from restraint which . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin , 115 S.Ct. at 2300. While this is undoubtedly a departure from Greenholtz , Thompson , et al., it is unclear exactly how radical a shift the Court intended to spur. See Sandin , 115 S.Ct. at 2306 (Breyer, J., dissenting). And it is still uncertain how broadly this circuit and others will construe Sandin 's reasoning.

It seems apparent that Sandin was concerned quite specifically with the problem of prison administration and the interest of the states in the effective control of inmates. Those interests are not at issue here, and so it may be that Sandin 's new approach will not apply. See Ellis , 84 F.3d at 1418. Indeed, even the Greenholtz - Thompson line of cases did not directly deal with the type of liberty interest alleged here, and it may be that both Sandin and Greenholtz will prove to be imperfect analogies. At all events, this close and difficult legal problem was not adequately briefed before us, and, since we will vacate Frey's sentence and permit Pennsylvania to conduct a new hearing, and potentially a new proportionality review, we need not reach this issue at this time.