Petitioners Brief — Sattazahn v. Pennsylvania

No. 01-7574 FILED.

In The ‘JUN 3 007

Supreme Court of the Anitey States

Sd

DAVID ALLEN SATTAZAHN,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

o

On Writ Of Certiorari To The

Supreme Court Of Pennsylvania

>

PETITIONER’S BRIEF

.

ROBERT BRETT DUNHAM

Counsel of Record

ANNE L. SAUNDERS

DEFENDER ASSOCIATION OF

. PHILADELPHIA

Federal Court Division

Suite 545 West, The Curtis Center

Independence Square West

Philadelphia, PA 19106

RECEIVED (215) 928-0520

cn - 7 9092 JOHN T. ADAMS

LINTON, DISTASIO, ADAMS

|} SUPREME COURT, U.S. J 1720 Mineral Springs Road

; P.O. Box 461

Reading, PA 19603-0461

(610) 374-7320

Counsel for Petitioner, David

Allen Sattazahn

Dated: June 3, 2002

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

en oe en | ee ere

CAPITAL CASE

QUESTIONS PRESENTED

1. Does the Double Jeopardy Clause of the Fifth

Amendment bar imposition of the death penalty upon

reconviction after an initial conviction, set aside on appeal,

in which the trial court imposed a statutorily mandated

life sentence when the capital sentencing jury failed to

reach a unanimous verdict?

2. Whether a capital defendant’s life and liberty

interest in the mandatory imposition of a life sentence

required by state law where the sentencing jury fails to

reach a unanimous verdict was violated when the state

sought death sentence on retrial?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED..................:.:ssseceeeeeeeeeeees i

FABETS GH CORT EMSC ED ccccscecscnsssessccnsscscstsscnsnvnienientn ii

TABLE OF AUTHORITIES ................ccccsssseceeesseeeeees iii

CITATION TO OPINIONS BELOW..................0.00000 1

FOF IG ccccscccccccessscnssctiitnnsessimemmanainmimaiaas 1

CONSTITUTIONAL AND STATUTORY PROVI-

BRST TOT V EAT ED ccccccccccccsccccentensetestseasitianiaiamaians 1

STATEMENT OF THE CASE................cccccseeeeeeeeeeeees 2

SUMMARY OF ARGUMENT................cccesseeeeeeeeeeeees 11

RETTIG ccccccscccecccasessnsesesientntentinnmana 15

I. The Capital Retrial of David Sattazahn after

His First Capital Sentencing Proceeding Re-

sulted in the Imposition of a Life Sentence by

Operation of Law Violated His Federal Con-

stitutional Right to Be Free from Double

DOCBEIE occcccceccoscccesssetosisioimmeuminmamaaana 15

Il. The Capital Retrial of David Sattazahn after

His First Capital Sentencing Proceeding

Resulted in the Imposition of a Life Sentence

by Operation of 42 Pa. C.S. § 9711(c)(1)(v)

Violated His Due Process Life and Liberty

Interest in the Sentence Mandated by Penn-

sylvania’s Death Penalty Statute................... 34

CONC LIIIIN .ccccccccccccccccsessscsosesscosnessosesssessesenenennnne 42

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arizona v. Rumsey, 467 U.S. 203 (1984)..................4. passim

Blystone v. Pennsylvania, 494 U.S. 299 (1990).................. 16

Bullington v. Missouri, 451 U.S. 430 (1981) ............. passim

Burks v. United States, 437 U.S. 1 (1978)............. 30, 31, 33

Evitts v. Lucey, 469 U.S. 387 (1985) .............cccccccceeeeees 34, 35

Ford v. Wainwright, 477 U.S. 399 (1986).................. passim

Green v. United States, 355 U.S. 184 (1957) .................000 23

Hicks v. Oklahoma, 447 U.S. 343 (1980)... 13, 34, 35, 37, 38

Jones v. United States, 527 U.S. 373 (1999)..............c0000e 39

North Carolina v. Pearce, 395 U.S. 711 (1969)..............00. 9

Ohio Adult Parole Authority v. Woodard, 523 U.S.

Ee 13, 34, 38, 39, 40

Poland v. Arizona, 476 U.S. 147 (1986)....... 9, 20, 29, 30, 33

Schiro v. Farley, 510 U.S. 222 (1994)........ 13, 20, 29, 32, 33

Smalis v. Pennsylvania, 476 U.S. 140

aa desiaeeeeeremennnanenenmnenmmneseneneeeeneeaet 25, 26, 28, 29

United States v. DiFrancesco, 449 U.S. 117 (1980) .....30, 32

United States v. Jones, 2002 WL 464678 (5th Cir.

ET 38

United States v. Martin Linen Supply Co., 430 U.S.

EEE 25

United States v. Perez, 9 U.S. (Wheat) 579 (1824)............ 25

iv

TABLE OF AUTHORITIES -— Continued

Page

STATE CASES

Commonwealth v. Baker, 531 Pa. 541, 614 4..d 663

Ce iitecscentatnierianislnauiinsdiaiiniintsitenienianiciinaahiaiatisiins acini 16

Commonwealth v. Jones, 546 Pa. 161, 683 A.2d

a iaainntininseneeteencaeiiaciatitiniane diacinindiaialeaacnranrieiea ieee ial 36

Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d

a Ge ranescsmnesensnenssenenenntaiannnnniepempainiatnasie passim

Commonwealth v. Sattazahn, 2001 WL 826060 (Pa.

SARL LTE LALA ALIEN 1, 11

Commonwealth v. Sattazahn, 563 Pa. 533, 763 A.2d

Ee passim

Commonwealth v. Sattazahn, 547 Pa. 742, 690 A.2d

I nineerecenainnraentnienicaiatentiniialattiaeai ata eal adalat ecard 8

Commonwealth v. Sattazahn, 539 Pa. 270, 652 A.2d

icici icici ala aaa ica 7

Commonwealth v. Sattazahn, 537 Pa. 639, 644 A.2d

Neenah ceili ada a a alia 7

Commonwealth v. Sattazahn, No. 0544 M.D. 1993

ITT ascicuntatetaseenentehienh atelier naaattaiainaetaieni teeta ieiainiees 7

Commonwealth v. Sattazahn, No. 02274 PHILA

EE Saree ee 8

Commonwealth v. Sattazahn, 428 Pa. Super. 413,

Ee a SE 7

Commonwealth v. Sattazahn, No. 01024 PHILA

ets CIID crecsnsrncenensimnensininnnienineniisepanionsiinisimiiilbitintins 7

v

TABLE OF AUTHORITIES - Continued

Page

Commonwealth v. Sattazahn, No. 2194/89 (Berks

Gp erintecnienntenensereniennnmnninisedniniitanetadnnmenniaiianmnednemaion 2

Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d

ae eee scncesecenmisennesemesneentasenntasimanammpiiieiienetnianemnenes 16

FEDERAL STATUTES

ee Oe I enernccneenneenicvinineeinmmmennnnmne 1

STATE STATUTES AND RULES OF PROCEDURE

GE Gay ED ceecenennnnteensemermemncnnnenmetl 21

Ga, Ga re tne 17, 36

ee 16

42 PA. C.S. § O711(CM1MAV)..........cccccerccessseseesees 16, 17, 22, 36

GB GA, GE BO ccrsnssnnnsenenscnmesesnenseneenesmene passim

a ae ee eteerenenssaninntoemmeimeiemmennnen 16

es ae cciianettnnennenicnrnetininiesiinimennnnen 16

a, Ge ED cictrceminenmnemnnniel 21

Oe hs Ge erertrererensunnientenmnnnememnl 21

NEV. REV. STAT. § 175.556 (West 2002) ..............cccceecseeeeees 38

Pa. R. Crim. P. 358A (subsequently renumbered as

Ss Se Oe Ge ercnerensediemnenenaneenienannnnl 5, 18, 36

sd

1

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania is

reported as Commonwealth v. Sattazahn, 563 Pa. 533, 763

A.2d 359 (2000), and is reprinted in the Joint Appendix

(hereinafter “J.A.”) at 91-109.

¢

JURISDICTION

The decision of the Pennsylvania Supreme Court was

rendered on November 27, 2000. Petitioner timely filed an

application for reargument, which was denied on July 20,

2001. Commonwealth v. Sattazahn, 2001 WL 826060 (Pa.

July 20, 2001). On October 1, 2001, Justice Souter granted

Petitioner an extension until December 17, 2001 to file his

petition for a writ of certiorari, which was filed on that

date and granted on March 18, 2002. This Court’s jurisdic-

tion is invoked under 28 U.S.C. § 1257(a).

¢

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. This case involves the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution,

which provides in relevant part:

nor shall any person be subject for the same of-

fence to be twice put in jeopardy of life or

limb... .

2. It also involves Section 1 of the Fourteenth

Amendment to the United States Constitution, which

provides in relevant part:

2

nor shall any State deprive any person of life,

liberty, or property, without due process of

law....

3. It also involves a constitutional life and liberty

interest arising out of 42 Pa. C.S. §§ 9711(c)(1)iv) & (v),

which provide in pertinent part:

(iv) the verdict must be a sentence of death

if the jury unanimously finds at least one aggra-

vating circumstance specified in subsection (d)

and no mitigating circumstance or if the jury

unanimously finds one or more aggravating cir-

cumstances which outweigh any mitigating cir-

cumstances. The verdict must be a sentence of

life imprisonment in all other cases.

(v) the court may, in its discretion, dis-

charge the jury if it is of the opinion that further

deliberation will not result in a unanimous

agreement as to the sentence, in which case the

court shall sentence the defendant to life impris-

onment.

¢

STATEMENT OF THE CASE

Petitioner, David Allen Sattazahn, was convicted of

murder, robbery, and related offenses following a jury trial

in the Berks County Court of Common Pleas in May 1991.

Commonwealth v. Sattazahn, No. 2194/89 (Berks C.P.). At

trial, the prosecution presented evidence that Richard

Boyer was found shot to death on April 13, 1987, following

an apparent robbery of the restaurant Mr. Boyer managed.

Record, N.T. 5/2-3/91 at 45-48. The Commonwealth's case

relied primarily on the testimony of Petitioner’s co-

defendant, Jeffrey Hammer. Pursuant to an agreement

Rr

3

with the Commonwealth,’ Mr. Hammer testified that he

and Petitioner had both been involved in planning the

robbery and had cased the restaurant in the days before

the April 12, 1987 robbery. Their plan, he testified, had

been to rob the manager and then handcuff him. Record,

N.T. 5/6/91 at 514-15. Prior to the robbery, Mr. Hammer

and Petitioner retrieved two handguns, holsters, and

ammunition. Record, N.T. 5/6/91 at 494-96. Mr. Hammer

testified that he had a .41 caliber gun and Petitioner

carried a .22 caliber gun.

Mr. Hammer further testified that he and Petitioner

waited for the manager to leave the restaurant aid, as Mr.

Boyer was walking towards his truck, they approached

him and told him to drop the bank bag. Record, N.T. 5/6/91

at 504. Mr. Boyer threw the bag twice then began to run

away. Mr. Hammer testified that both he and Petitioner

had fired their weapons. He said that Petitioner was the

first to shoot, and that after Mr. Hammer fired, he heard

two or three more shots. Record, N.T. 5/6/91 at 506-09. Mr.

Hammer testified that Petitioner then retrieved the bank

bag, they fled the scene and subsequently divided the

money. Record, N.T. 5/6/91 at 510-11, 515, 520-21.

The Commonwealth also presented evidence, through

the autopsy and police testimony, indicating that the

decedent had suffered wounds consistent with a .22 caliber

weapon and that cartridges found at the scene had been

fired from a Ruger Mark II .22 caliber gun. Record, N.T.

5/3/91 at 239, 338. Although the salesperson in the

' In exchange for his testimony, the Commonwealth agreed that

Mr. Hammer would receive a sentence of a term of years rather than

face capital prosecution. Record, N.T. 5/3/91 at 580.

4

gun store could not identify Petitioner as the person who

purchased that weapon some two months before the

robbery/murder (see Record, N.T. 5/3/91 at 381), the

Commonwealth also presented a police handwriting expert

who concluded that the signature on paperwork generated

in the sale of that weapon was consistent with Petitioner’s

handwriting. Record, N.T. 5/6/91 at 481-85.

Following presentation of the evidence, the jury found

Petitioner guilty and the case proceeded to a capital

sentencing hearing on May 9, 1991. At the start of the

hearing, the trial court provided the jury introductory

instructions on the nature of aggravating and mitigating

circumstances and the parties’ respective burdens of proof.

Record, N.T. 5/9/91 at 19-20; J.A. at 10-11. The parties

then presented evidence in support of aggravating and

mitigating circumstances, and rested their respective

cases. Record, N.T. 5/9/91 at 20-30.

After the close of evidence, the court recessed for the

day. The next morning, following argument, the trial court

fully instructed the jury on its sentencing options and

obligations. Record, N.T. 5/10/91, at 55-60; J.A. at 15-20.

The court again instructed the jury that the Com-

monwealth bore the burden of proving aggravating cir-

cumstances beyond a reasonable doubt, while the defense

was required to prove mitigating circumstances by a

preponderance of the evidence. Record, N.T. 5/10/91, at 55-

56; J.A. at 15-16. The Court also instructed the jury that it

must return a death sentence if all of the jurors found at

least one aggravating circumstance and no mitigating

circumstances or if the jury found that aggravating cir-

cumstances outweighed mitigating circumstances, but

that the jury must return a sentence of life imprisonment

in all other circumstances. Record, N.T. 5/10/91, at 55; J.A.

TE

5

at 15-16 (“If you do not all agree on one or more of the

other of these findings then the only verdict you may

return is a sentence of life imprisonment.”); id. at 57; J.A.

at 17 (“As I told you earlier, and as the verdict slip indi-

cates, you must agree unanimously on one of the two

general findings before you can sentence the defendant to

death”).

The trial court further instructed the jury that the

court was required as a matter of law to impose a sentence

of life imprisonment if the jury could not reach a unani-

mous verdict of either life or death:

If you are still unable to agree on a verdict after

conscientious and thorough deliberations, report

that to me. If it seems to me that you are hope-

lessly deadlocked it will be my duty to sentence

the defendant to life imprisonment.’

Record, N.T. 5/10/91, at 58; J.A. at 18.

Per Rule 358A of Pennsylvania’s Rules of Criminal

Procedure (subsequently renumbered as PA. R. CRIM. P.

807), the court also provided the jury with a verdict slip,

which it instructed the jury to read before commencing its

deliberations. Record, N.T. 5/10/91, at 58-59, 60; J.A. at 18,

19. Part D of the instructions on that verdict slip stated in

bold capital letters (J.A. at 27):

D. IF, AFTER SUFFICIENT DELIBERA-

TION, YOU CANNOT UNANIMOUSLY REACH

A SENTENCING VERDICT, DO NO7 COM-

PLETE OR SIGN THIS SLIP, BUT RETURN IT

TO THE JUDGE. THE JUDGE WILL DETER-

MINE IF FURTHER DELIBERATIONS ARE

* All emphasis supplied unless otherwise indicated.

6

REQUIRED; IF THEY ARE NOT, THE JUDGE

WILL SENTENCE THE DEFENDANT TO

LIFE IMPRISONMENT.

After three-and-one-half hours of deliberation, the

jury returned with a note, signed by the jury foreperson,

stating: “Your Honor — [4] We, the jury are hopelessly

deadlocked at 9-3 for life imprisonment. Each one is deeply

entrenched in their position. We do not expect anyone to

change his or her position.” Record, N.T. 5/10/91, at 67;

Court Exhibit No. 4; J.A. at 25.

The trial court conducted the factual inquiry man-

dated by Pennsylvania law to ascertain whether the

sentencing jury was unable to reach a unanimous verdict.

Record, N.T. 5/10/91, at 62-64; J.A. at 21-24. Finding the

jurors deadlocked, the trial court discharged the jury and

announced that it would impose a life sentence upon

Petitioner, as statutorily mandated by 42 Pa. CS.

§ 9711(c)(1)(v):

THE COURT: . . . The Court at this time find-

ing that you are unable to find unanimously for ei-

ther sentence of death or life imprisonment will

discharge you from your duties in deliberating any

further in this particular case. And because of that,

as a result of your inability to unanimously decide,

the Court, by virtue of the |..w, will at the time of

formal imposition of sentence sentence this defen-

dant to life imprisonment.

Record, N.T. 5/10/91, at 64; J.A. at 23-24.

On February 14, 1992, the court formally imposed

that life sentence and remanded Petitioner into the cus-

tody of the state prison system to serve that sentence. See

Record, Sentencing Order, Sentencing Guideline Sentence

Form/Commitment Authorization; J.A. at 30, 35, 40.

——

7

The Commonwealth could not appeal this adjudication

of sentence, nor could Petitioner appeal any issue relating

to this legal determination of life over death.

On March 12, 1992, Petitioner appealed his convic-

tions to the Superior Court of Pennsylvania, the Com-

monwealth’s intermediate appellate court. Commonwealth

v. Sattazahn, No. 01024 PHILA (Pa. Super.). On July 30,

1993, the Superior Court reversed. Commonwealth v.

Sattazahn, 428 Pa. Super. 413, 631 A.2d 597 (1993), rearg.

denied Oct. 6, 1993. The Commonwealth filed for allow-

- ance of appeal, and Petitioner sought allowance of cross-

appeal on other guilt-stage issues. Commonwealth v.

Sattazahn, No. 0544 M.D. 1993 (Pa.). On April 15, 1994,

the Supreme Court of Pennsylvania denied Petitioner’s

motion and initially granted the Commonwealth allowance

of appeal. Commonwealth v. Sattazahn, 537 Pa. 639, 644

A.2d 162 (1994). However, on December 30, 1994, the

Court dismissed that appeal as having been improvidently

granted. Commonwealth v. Sattazahn, 539 Pa. 270, 652

A.2d 293 (1994). The case returned to the Berks County

Court of Common Pleas for a new trial.

On March 9, 1995, the Commonwealth filed notice of

intent to seek the death penalty on retrial. J.A. at 47-53.

Four days later, Petitioner moved to prevent the Com-

monwealth from capitally retrying him. The Court of

Common Pleas, per Judge Keller, held that neither the

state or federal constitutions nor Pennsylvania law, pre-

vented Petitioner “from choosing between his right to

appeal a life sentence mandated by 42 Pa. CSA.

§9711(c)(2) and the remote risk of a death sentence upon

retrial.” Opinion of the Trial Court, at 1 (July 19, 1995)

(“Pretrial Opinion”); J.A. at 54.

8

Petitioner appealed this order to the Superior Court,

No. 02274 PHILA 1995. On April 18, 1996, a split panel of

the Superior Court affirmed. Slip op. (Apr. 18, 1996) (with

Brosky, J., dissenting), rearg. denied, June 21, 1996; J.A.

at 73-81. The intermediate appellate court relied upon the

Pennsylvania Supreme Court’s per curiam decision in

Commonwealth v. Martorano, 535 Pa. 178, 634 A.2d 1063

(1993), which held that a directed verdict of life imposed

by the trial court after the sentencing jury could not reach

a unanimous verdict did not constitute an acquittal of

death and so did not implicate double jeopardy. The

Supreme Court of Pennsylvania denied Mr. Sattazahn’s

petition for allowance of appeal from the Superior Court’s

decision. Commonwealth v. Sattazahn, 547 Pa. 742, 690

A.2d 1162 (1997) (No. 469 M.D. 1996). Petitioner reas-

serted and preserved his objections to capital retrial in an

in camera pretrial proceeding on December 29, 1998.

Record, N.T. In Camera Pretrial Hearing, 12/29/98, at 3-4;

J.A. at 83. The trial court again rejected Petitioner’s

objections to a capital retrial. Jd.

The retrial was conducted between January 12 and

January 22, 1999. On January 22, the death-qualified jury

found Petitioner guilty of first degree murder and related

charges. Later that same day, the court conducted a brief

sentencing-stage hearing’ at which “the remote risk of a

death sentence upon retria]” became a reality: Mr. Satta-

zahn was sentenced to death. See Record, Verdict Slip at 2;

J.A. at 86. The trial court formally imposed sentence on

* The entire defense case at resentencing occupies twelve pages of

transcript. Record, N.T. 1/22/99, at 592-603.

9

February 16, 1999, Record, Sentencing Order; J.A. at 90,

and Petitioner filed a notice of appeal on February 25,

1999.

Petitioner challenged his conviction and sentence on a

number of grounds, including those asserted herein. On

November 27, 2000, the Pennsylvania Supreme Court

upheld Petitioner’s conviction and death sentence by a

bare 4-3 majority. Commonwealth v. Sattazahn, 563 Pa.

533, 763 A.2d 359 (2000); J.A. at 91-109.‘ As had the

Superior Court in 1996, the Pennsylvania Supreme Court

relied upon its 1993 per curiam decision in Martorano to

reject Petitioner’s double jeopardy claim. Sattazahn, 563

Pa. at 545-49, 763 A.2d at 366-68; J.A. at 100-05. It wrote:

Sattazahn argues that Martorano was wrongly

decided because it is irrelevant whether the life

sentence is a result of a unanimous jury verdict

or operation of law following jury deadlock be-

cause either situation is an acquittal on the mer-

its. This is the exact issue raised by the

Appellant in Martorano and after a thorough

discussion of North Carolina v. Pearce, 395 U.S.

711 (1969); Bullington v. Missouri, 451 U.S. 430

(1981); Arizona v. Rumsey, 467 U.S. 203 (1984)

and Poland v. Arizona, 476 U.S. 147 (1986) we

rejected it.

Sattazahn, 563 Pa. at 547, 763 A.2d at 367; J.A. at 102-03.

The state court, tracking its analysis of double jeopardy

in Martorano, interpreted this Court’s double jeopardy

* Three Justices dissented on the grounds that the capital retrial

unconstitutionally burdened Petitioner’s state constitutional right to

appeal.

10

rulings as applying only where there has been a prior

factfinding by the ultimate sentencer that resulted in an

“implied acquittal” of death. It wrote:

In Martorano, we applied Bullington and Rumsey

and held that the Commonwealth is not pre-

cluded from seeking the death penalty on retrial,

where, following their first trial, defendants were

convicted of first-degree murder and sentenced to

life imprisonment, not by a unanimous jury ver-

dict, but by the trial judge following the jury's

deadlock regarding the penalty. The hung jury

did not act as an acquittal on the merits as did

the proceedings at issue in Bullington and Rum-

sey.

Sattazahn, 563 Pa. at 547, 763 A.2d at 367; J.A. at 102.

The state court distinguished Bullington on the grounds

that the unanimous jury verdict in that case had “impli-

edly decided that the prosecution had not proved its case

for death,” whereas the non-unanimous “hung jury” in this

case did not itself reach a verdict. Jd. at 546, 763 A.2d at

366; J.A. at 101. It then distinguished Rumsey on the

grounds that the trial court in Rumsey had imposed a life

sentence only after itself making predicate findings of fact

that the prosecution had failed to prove its case for death,

whereas here “the imposition of a life sentence by the trial

judge [did not] operate as an acquittal.” Jd. at 548, 763

A.2d at 367; J.A. at 103 (quoting Martorano).

The state court anchored its no-acquittal reasoning on

the fact that “[uJnder Pennsylvania’s sentencing scheme,

the judge has no discretion to fashion sentence once he

finds that the jury is deadlocked. The statute directs him

to enter a life sentence.” Jd. (citing 42 Pa. CS.

§ 9711(c\(1\(v)). Therefore, the court opined, “the judge

11

makes no findings and resolves no factual matter. Since

judgment is not based on findings which resolve some

factual matter, it is not sufficient to establish legal enti-

tlement to a life sentence. A default judgment does not

trigger a double jeopardy bar to the death penalty upon

retrial.” Id.

The Pennsylvania Supreme Court also relied upon

Martorano to summarily reject Petitioner’s due process

claim. Id. at 549, 763 A.2d at 368; J.A. at 105-07. Although

the state court stated that the due process claim had been

raised as a state law issue, it opined that “Pennsylvania's

constitutional analysis of these issues is the same as the

federal approach.” Jd.; J.A. at 105.

Petitioner timely sought reargument based upon the

state court’s failure to take into consideration this Court’s

post-Martorano double jeopardy decisions, and because the

state court had failed to address his due process claim.

With two Justices dissenting, the Pennsylvania Supreme

Court denied Petitioner’s application for reargument on

July 20, 2001. Commonwealth v. Sattazahn, 2001 WL

826060 (Pa. July 20, 2001) (per curiam). On December 17,

2001, Petitioner timely filed a Petition for writ of certio-

rari, seeking review of his case. This Court granted certio-

rari.

¢

SUMMARY OF ARGUMENT

David Sattazahn received a life sentence after a

capital trial and sentencing proceeding, tried to completion

in 1991. After reversal of his original conviction, Pennsy]-

vania once again sought, and this time obtained, a death

sentence in his second capital trial. This death sentence

12

violated the Double Jeopardy Clause of the Fifth Amend-

ment. Bullington v. Missouri, 451 U.S. 430 (1981).

Pennsylvania law places upon the prosecution the

burden of persuading all twelve capital sentencing jurors

that death is the appropriate punishment. If the jury

unanimously agrees on a sentence — whether it is life or

death — the court must impose the jury’s verdict. When-

ever the jury is unable to reach a unanimous verdict, the

prosecution has failed to meet its burden of persuasion.

When that occurs, as it did in Petitioner’s initial capital

trial, Pennsylvania law mandates that the trial court

discharge the jury and impose a sentence of life imprison-

ment as a matter of law.

Because this type of jury deadlock actually results in

the imposition of a sentence, the case fundamentally

differs from those in which a jury deadlock on the question

of guilt or sentencing produces a “hung jury.” In the

former, the trial proceedings are finally determined; in the

latter, the “hung jury” prematurely terminates the trial

proceedings without any final resolution. As a result of

this factual and legal distinction, long-established princi-

ples of double jeopardy, due process, and fundamental

fairness apply to the retrial of a life-sentenced defendant

that are inapplicable in the context of a “hung jury” mistrial.

When Pennsylvania capitally retried Petitioner and sought

and obtained a sentence of death, that death-after-life

sentence violated the Fifth and Fourteenth Amendments.

Pennsylvania's capital sentencing hearings are trial-

like proceedings on the issue of punishment that are

materially indistinguishable from those of the Missouri

and Arizona death penalty statutes to which this Court

has held jeopardy attaches. Bullington; Arizona v. Rumsey,

13

467 U.S. 203 (1984). Consequently, when a Pennsylvania

capital defendant receives a life sentence after a capital

sentencing proceeding tried to completion, “requiring

[him] to submit to a second, identical proceeding [is]

tantamount to permitting a second prosecution of an

acquitted defendant.” Schiro v. Farley, 510 U.S. 222, 231

(1994).

Here, the prosecution presented evidence and argu-

ment that was insufficient to convince nine of twelve

jurors that Petitioner should be sentenced to death.

Because of the Commonwealth’s failure of proof, the trial

court imposed a life sentence as a matter of law. 42 PA.

C.S. § 9711(c\(1)(v). Trial court rulings that the prosecu-

tion has failed, as a matter of law, to establish a defen-

dant’s guilt constitute acquittals for double jeopardy

purposes. And regardless of how the final adjudication of

Petitioner’s first sentencing hearing is characterized, the

fact remains that he was sentenced to death after obtain-

ing a life sentence when initially placed in jeopardy.

Subjecting him to successive capital prosecutions, includ-

ing twice facing the hazards of a trial-like capital sentenc-

ing hearing tried to completion, violated double jeopardy.

This Court should reverse Petitioner’s death sentence and

declare that a life sentence imposed by operation of law

following a capital sentencing hearing that has been tried

to completion implicates double jeopardy.

Similarly, when a state mandates certain capital

sentencing procedures or establishes the right to particu-

lar appellate, post-conviction, or post-sentencing review in

capital cases, it creates Fourteenth Amendment life and

liberty interests in those procedures. Hicks v. Oklahoma,

447 U.S. 343 (1980); Ohio Adult Parole Authority v.

Woodard, 523 U.S. 272 (1998); Ford v. Wainwright, 477

14

U.S. 399, 427-31 (1986) (O’Connor, J., concurring). Here,

Pennsylvania enacted a capital sentencing scheme that

provided three possible verdicts: a unanimous verdict of

death; a unanimous verdict of life; and a sentence of life by

operation of law as a result of the jury’s inability to reach a

unanimous verdict. The life sentence that is the product of

these procedures is final and unappealable by either side.

These procedures are an integral part of Pennsyl-

vania’s system for finally adjudicating whether a capital

defendant will live or be sentenced to die. This and the

unmistakably mandatory character of Pennsylvania’s

capital sentencing provisions create a substantial and

legitimate expectation that a capital defendant who

receives a judicially-imposed directed verdict for life

resulting from a jury deadlock will not be subject to

execution for his offense. Further, Pennsylvania makes no

statutory distinction between the treatment of life sen-

tences imposed by judicially directed verdicts and those

imposed by unanimous juries in the event the defendant

successfully appeals his conviction. Nor did it advise the

sentencing jury or Petitioner that a successful appeal

could jeopardize its non-unanimous verdict and his life

sentence. These factors further strengthen the expectation

that Pennsylvania would respect the life sentence that was

mandated by its sentencing laws.

Pennsylvania was not constitutionally required to

impose a directed life verdict when its capital sentencing

juries deadlock, but having chosen this approach, it

created a constitutionally protected life and liberty inter-

est in the resulting life sentence. Pennsylvania may not

arbitrarily deny Petitioner the life sentence mandated by

its laws. This Court should reverse Petitioner’s death

sentence, and enforce his life and liberty interest in the

15

directed life verdict that was mandated by Pennsylvania’s

capital sentencing statute.

¢

ARGUMENT

I. The Capital Retrial of David Sattazahn after

His First Capital Sentencing Proceeding Re-

sulted in the Imposition of a Life Sentence by

Operation of Law Violated His Federal Con-

stitutional Right to Be Free from Double

Jeopardy.

David Sattazahn received a life sentence after a

capital trial and sentencing proceeding, tried to completion

in 1991. After reversal of his original conviction, Pennsyl-

vania once again sought, and this time obtained, a death

sentence in his second capital trial.

After Petitioner was convicted of first degree murder

in his original trial, the case proceeded — per Pennsylvania

law — to a second evidentiary proceeding. That proceeding

was governed by title 42, section 9711 of the Pennsylvania

Criminal Code. The capital sentencing statute guided the

discretion of Petitioner’s capital sentencer in deciding

between the sentencing options of life without parole or

death by providing detailed statutory standards defining

aggravating and mitigating circumstances, establishing

evidentiary requirements and burdens of proof applicable

to these circumstances, and carefully setting forth the

circumstances in which each of the alternative sentences

may be imposed.

Pennsylvania’s capital sentencing statute provides

for two — and only two — sentencing options: life with-

out possibility of parole or death. In seeking death, the

16

Commonwealth is required to prove one or more statuto-

rily enumerated aggravating circumstances beyond a

reasonable doubt.’ When a jury is empaneled as the

capital sentencer, it must unanimously agree that the

Commonwealth has proven an aggravating circumstance

before the jury may weigh that particular circumstance in

its sentencing determination. On the other hand, a capital

defendant is permitted to present any statutorily enumer-

ated or constitutionally recognized mitigating circumstance’

and must prove each circumstance by a preponderance of

the evidence. The jury is required to weigh all mitigating

circumstances found by any one or more of the jurors. 42

Pa. C.S. § 9711(c)(1 iii).

The capital sentencing statute also affords a capital

defendant “a ‘presumption of life’” in the penalty phase of

trial. Commonwealth v. Travaglia, 502 Pa. 474, 499, 467

A.2d 288, 300 (1983). In so doing, it places the burden of

persuasion on the prosecution such that death may not be

imposed unless the capital sentencer has unanimously

determined beyond a reasonable doubt that at least one

aggravating circumstance exists and, even then, death

may not be imposed unless the defendant has failed to

prove any mitigating circumstances or if the aggravating

circumstance(s) outweigh the mitigating circumstance(s)

found. 42 Pa. C.S. § 9711(c)(1)iv)-(v); Blystone v. Pennsyl-

vania, 494 U.S. 299, 305 (1990).’ When the defendant is

* The aggravating circumstances are set forth in 42 Pa. C.S.

§ 9711(d).

* The statutorily enumerated mitigating circumstances are set

forth in 42 Pa. C.S. § 9711(e).

" See also Commonwealth v. Baker, 531 Pa. 541, 569, 614 A. 2d 663,

677 (1992) (Pennsylvania's death penalty “statute .. . decides a ‘tie,’ and

equal balance of aggravation and mitigation, in favor of the defense.”).

17

tried before a sentencing jury, the statute places upon the

prosecution the burden of persuading all twelve capital

sentencing jurors that death is the appropriate punish-

ment. The prosecution meets its burden of persuasion only

when the jury has reached a unanimous verdict of death.

In all other circumstances, state law mandates the imposi-

tion of a sentence of life without possibility of parole. 42

Pa. C.S. § 9711(c)(1)iv).

Pennsylvania also has adopted formal procedures for

imposing sentence following the presentation of evidence

and the jury’s deliberations. Under Pennsylvania law, the

court imposes the jury’s verdict whenever the jury unani-

mously agrees upon a sentence. However, when the trial

court determines that the sentencing jury cannot reach a

unanimous verdict, Pennsylvania law requires that the

trial court impose a sentence of life imprisonment as a

matter of law. 42 Pa. C.S. § 9711(c)(1)(v).

At the close of a capital sentencing jury trial in Penn-

sylvania, the jury is instructed in the applicable burdens

of proof and persuasion. The instructions explain the

combination of factfindings that may result in the

imposition of sentence by a unanimous jury. The jury is

also specifically instructed that, if it is not able to reach a

unanimous verdict, the court will impose a life sentence.

42 Pa. C.S. § 9711(c)(1). The jury is also provided a First

Degree Murder Seniencing Verdict Slip, which it is in-

structed to read before beginning its deliberations. The

verdict slip informs the jury in bold capitalized letters:

IF, AFTER SUFFICIENT DELIBERATION,

YOU CANNOT UNANIMOUSLY REACH A

SENTENCING VERDICT, DO NOT COM-

PLETE OR SIGN THIS SLIP, BUT RETURN

IT TO THE JUDGE. THE JUDGE WILL

¢

18

DETERMINE IF FURTHER DELIBERA-

TIONS ARE REQUIRED; IF THEY ARE

NOT, THE JUDGE WILL SENTENCE THE

DEFENDANT TO LIFE IMPRISONMENT.

Pa. R. CRIM. P. 358A (subsequently renumbered as PA. R.

CRIM. P. 807); see J.A. at 27.

In Petitioner’s 1991 trial, the Commonwealth intro--

duced evidence of a single aggravating circumstance —

murder during the perpetration of a felony (robbery) — and

Petitioner presented mitigating evidence of his lack of any

significant history of prior criminal convictions and his age

at the time of the crime. Commonwealth v. Sattazahn, 563

Pa. 533, 539, 763 A.2d 359, 362 (2000); J.A. at 92; Verdict

Slip at 1; J.A. at 26-27. Following the presentation of

evidence and argument by both sides, the trial court

instructed the jury as required by Pennsylvania law,

including an instruction that the court was legally re-

quired to impose a sentence of life imprisonment if the

jury could not reach a unanimous verdict of either life or

death. Record, N.T. 5/10/91, at 55-60; J.A. at 15-20.

The trial court also provided the jury with a verdict

slip containing the language specified by Rule 358A (see

above), and instructed the jury on the use of the verdict

slip during its deliberations. Record, N.T. 5/10/91, at 58-60;

J.A. at 18-19. After the jury reported that it was “hope-

lessly deadlocked at 9-3 in favor of life imprisonment” with

the jurors “deeply entrenched in their position,” Record,

N.T. 5/10/91, at 67, Court Exh. 4; J.A. at 25, the trial court

discharged the jury pursuant to 42 Pa. C.S. § 9711l(c\(1\(v)

and imposed the statutorily mandated directed verdict of

life imprisonment. Record, N.T. 5/10/91, at 63-64; J.A. at

23-24.

19

The trial court subsequently advised Petitioner that

he had a right to appeal his conviction, but did not ever

inform Petitioner of the possibility that a successful appeal

of his homicide conviction could subject him to a second

capital prosecution. Pétitioner then appealed his homicide

and robbery convictions, and the Pennsylvania Superior

Court overturned those convictions on July 30, 1993.

Several months later, in Commonwealth v. Martorano, 535

Pa. 178, 634 A.2d 1063 (1993), the Pennsylvania Supreme

Court held for the first time that a directed verdict of life

imposed by the trial court after a capital sentencing jury

could not reach a unanimous verdict did not constitute an

acquittal of death and so did not implicate double jeopardy.

After the Pennsylvania Supreme Court declined to

review Petitioner’s successful appeal, the prosecution

provided notice of its intention to seek death a second

time. The state courts — alluding to “the remote risk of a

death sentence upon retrial,” Pretrial Opinion at 1; J.A. at

54 - rejected Petitioner’s pre-trial efforts to quash the

capital reprosecution. Given this second opportunity to

obtain a death verdict, the case proceeded to a second

capital sentencing hearing and this time Petitioner was

sentenced to death.

Mr. Sattazahn’s death-after-life sentence must be

reversed, for Pennsylvania subjected him “to be twice put

in jeopardy of life” for the same offence. U.S. CONST.

Amend. 5.

A State violates the Double Jeopardy Clause of the

Fifth Amendment when it subjects a defendant who

received a life sentence in his original capital sentencing

trial to a capital retrial and death sentence after reversal

of his original conviction. Bullington v. Missouri, 451 U.S.

20

430 (1981) (double jeopardy where jury had sentenced

capital defendant to life imprisonment after trial-like

capital sentencing proceeding); Arizona v. Rumsey, 467

U.S. 203 (1984) (double jeopardy where, after trial-like

capital sentencing proceeding, trial judge sentenced

capital defendant to life based upon erroneous view that

the evidence did not support any aggravating circum-

stances). As this Court has clearly explained, “the Double

Jeopardy Clause applies to . . . capital sentencing proceed-

ing[s]”’ and bars imposition of the death penalty on retrial

whenever “an initial conviction, set aside on appeal, has

resulted in rejection of the death sentence.” Rumsey, 467

U.S. at 209. Double jeopardy applies because when a

capital defendant receives a life sentence after a “capital

sentencing proceeding [that] ‘was itself a trial on the issue

of punishment,’ requiring [him] to submit to a second,

identical proceeding [is] tantamount to permitting a

second prosecution of an acquitted defendant.” Schiro v.

Farley, 510 U.S. 222 (1994) (quoting and citing Bulling-

ton)."

The double jeopardy violation in this case is evident

from a comparison between Pennsylvania’s capital sentenc-

ing proceedings and those of the other states whose capital

sentencing proceedings this Court has held implicate the

Double Jeopardy Clause. Simply put, Pennsylvania's capital

sentencing proceedings are indistinguishable for double

* Cf. Poland v. Arizona, 476 U.S. 147 (1986) (no double jeopardy

where trial judge sentenced capital defendant to death based upon

finding of a single aggravating circumstance that was not supported by

the evidence when death sentence could have been supported by

another aggravating circumstance that the trial court erroneously

believed was not present; double jeopardy would have attached if court’s

error had resulted in a life sentence).

21

jeopardy purposes from those in Bullington (Missouri) and

Rumsey (Arizona).

¢ As in Arizona and Missouri, the capital sen-

tencer is faced with a choice of only two sen-

tencing options. In Arizona, the capital

sentencer was required to choose between

death or the sentencing alternative of life

without possibility of parole for 25 years; in

Missouri, death or the sentencing alternative

of life without possibility of release for 50

years; and in Pennsylvania, death or the sen-

tencing alternative of life without the possi-

bility of parole.

¢ In all three states, the sentencer must make

this decision guided by detailed statutory stan-

dards defining aggravating and mitigating

circumstances, based upon evidence introduced

in a separate proceeding that has all the

formal elements of a trial.

e All three sentencing statutes require proof of

aggravating circumstances beyond a reason-

able doubt, pursuant to procedures governing

the admissibility of evidence.

e All three statutes identify those circum-

stances in which a death sentence may be

imposed and in which a life sentence may be

imposed.

Rumsey, 467 U.S. at 209-10; Bullington, 451 U.S. at 432-

35; 42 Pa. C.S. § 9711; 42 Pa. C.S. § 9756(c); 61 PA. C.S.

§ 331.21.° As in Missouri, any jury decision to impose the

* “That the sentencer in [Pennsylvania when a jury deadlocks] is

the trial judge rather than the jury does not render the sentencing

(Continued on following page)

22

death penalty must be unanimous; and if the jury cannot

agree on a sentence, the defendant is sentenced to life

imprisonment by operation of law. Bullington, 451 U.S. at

434-35; 42 Pa. C.S. § 9711(c)1\(iv)-(v).

“For these reasons, when the Missouri” or Arizona or

Pennsylvania “sentencer imposes a sentence of life impris-

onment in a capital sentencing proceeding, it has deter-

mined that the prosecution has failed to prove its case.”

Rumsey, 467 U.S. at 209. Because “the anxiety and ordeal

suffered by a defendant in Missouri’s” and Arizona’s and

Pennsylvania’s “capital sentencing proceeding are the

equal of those suffered in a trial on the issue of guilt, ...

the Double Jeopardy Clause prohibits the State from

resentencing the defendant to death after the sentencer

has in effect acquitted the defendant of that penalty.” Jd.

In short, as this Court exp'ained:

[A] sentence imposed after a completed Arizona

for Pennsylvania] capital sentencing hearing is a

judgment like the sentence at issue in Bullington

v. Missouri, which this Court held triggers the

protections of the Double Jeopardy Clause.

The double jeopardy principle relevant to re-

spondent’s case is the same as that invoked in

Bullington: an acquittal on the merits by the sole

decisionmaker in the proceeding is final and bars

retrial on the same charge. Application of the

Bullington principle renders respondent’s death

sentence a violation of the Double Jeopardy

Clause because respondent’s initial sentence of

proceeding any less like a trial,” nor does the fact that “no appeal need

be taken if life imprisonment is imposed.” Rumsey, 467 U.S. at 210.

23

life imprisonment was undoubtedly an acquittal

on the merits of the central issue in the proceed-

ing — whether death was the appropriate punish-

ment for respondent’s offense.... [AJs required

by state law, the court then entered judgment in

respondent’s favor on the issue of death. That

judgment, based on findings sufficient to estab-

lish legal entitlement to the life sentence,

amounts to an acquittal on the merits and, as

such, bars any retrial of the appropriateness of

the death penalty.

Rumsey, 467 U.S. at 210-11; see Green v. United States,

355 U.S. 184, 190-91 (1957) (conviction of defendant for

second degree murder was an implied acquittal of accom-

panying charges of first degree murder, and double jeop-

ardy barred retrial for first degree murder when

conviction was reversed on appeal).

In Sattazahn and Martorano, however, the Pennsyl-

vania Supreme Court held that the Fifth Amendment’s

double jeopardy protections attach whenever a final,

unappealable judgment of life is imposed by operation of

the state-law mechanism of a unanimous jury verdict but

not when a final, unappealable judgment of life is imposed

by operation of the state-law mechanism of a directed

verdict of life by the trial judge following a jury deadlock

on sentencing. Sattazahn, 563 Pa. at 547-49, 763 A.2d at

367-68; J.A. at 102-04; Martorano, 535 Pa. at 188, 634

A.2d at 1067-68. This cramped interpretation of the Fifth

Amendment elevates form over substance and badly

misapprehends this Court’s decisions on double jeopardy.

This Court’s precedents establish that double jeopardy

attaches whenever a capital defendant is subjected to

trial-like capital sentencing proceedings, tried to comple-

tion, and the sentencing proceedings terminate with the

24

imposition of a sentence other than death. Bullington,

Rumsey, supra.

Here, David Sattazahn’s legal entitlement to the life

sentence he received in his first capital sentencing pro-

ceeding is beyond question. The State presented evidence

that persuaded only three jurors that death was the

appropriate penalty. The evidence and argument it pre-

sented was not, however, weighty or convincing enough to

persuade the other nine jurors to impose death. As a result

of the prosecution’s failure to meet its burden of persua-

sion, the trial court sentenced Petitioner to life imprison-

ment.

Pennsylvania’s erroneous death-after-life double jeop-

ardy jurisprudence entirely ignores the trial-like nature of

the Commonwealth’s capital sentencing proceeding and the

constitutional consequences produced by the termination

of capital jeopardy that results when such a proceeding is

tried to completion. Instead, Pennsylvania colloquially

misdescribes a deadlocked capital sentencing jury as a

“hung jury,” and then misascribes the very different double

jeopardy consequences of a hung jury to the termination of

jeopardy produced by a non-unanimous capital sentencing

jury under Pennsylvania law. But in fact and law under

Pennsylvania’s capital sentencing scheme, a _ non-

unanimous capital sentencing jury is not a “hung jury”

that prematurely terminates the trial proceedings without

any final resolution of the case. The jury is discharged, but -

this does not produce a mistrial. On the contrary, the

legislature specifically envisioned that a capital sentenc-

ing trial might produce a divided jury that could not agree

on the appropriate sentence. It dealt with that possibility

by requiring the court to impose a life sentence as a

matter of law.

a

25

This distinction makes a difference. The typical hung

jury produces no legal judgment. Instead, it produces a

mistrial that does not determine the outcome of the trial.

This is not an acquittal and does not terminate the case.

United States v. Perez, 9 U.S. (Wheat) 579, 580 (1824). On

the other hand, when a trial court enters a directed verdict

for the defendant after discharging a deadlocked jury, that

directed verdict constitutes a judgment of acquittal that

“act([s] to terminate a trial in which jeopardy has long

since attached.” United States v. Martin Linen Supply Co.,

430 U.S. 564, 570 (1977). Once acquitted, whether by a

jury or the court, “subjecting the defendant to postacquit-

tal factfinding proceedings going to guilt or innocence

violates the Double Jeopardy Clause.” Smalis v. Pennsyl-

vania, 476 U.S. 140, 145 (1986) (citing Arizona v. Rumsey,

467 U.S. 203, 211-12 (1984)).

Pennsylvania law mandates that, if the jury cannot

reach a unanimous verdict after consideration of the

evidence on the issue of whether the defendant should live

or die, “the court shall sentence the defendant to life

imprisonment.” 42 Pa. C.S. §9711(c)(1\(v). It necessarily

follows that:

such a judgment of acquittal plainly concludes a

pending prosecution in which jeopardy has at-

tached, following the introduction at trial of evi-

dence on the genera! issue. In that circumstance

we hold that “although retrial is sometimes per-

missible after a mistrial is declared but no ver-

dict or judgment has been entered, the verdict of

acquittal foreclosed retrial and thus barred ap-

pellate review.”

Martin Linen, 430 U.S. at 576 (quoting United States v.

Wilson, 420 U.S. 332, 348 (1975)).

26

The discharge of a non-unanimous capital-sentencing

jury in Pennsylvania does not produce a mistrial without

fina] judgment. Quite the opposite. It produces an unap-

pealable directed verdict of life imprisonment that termi-

nates the capital sentencing trial. This judicially imposed

life sentence is an acquittal of death that triggers double

jeopardy protections.”

The Pennsylvania Supreme Court’s holding that the

issuance of a statutorily mandated “default judgment” for

life following discharge of a non-unanimous jury “is not

sufficient to establish legal entitlement to a life sentence”

for double jeopardy purposes because the judge who

imposed the life sentence has “malde] no findings and

resolve[d] no factual matter,” Saitazahn, 563 Pa. at 548,

763 A.2d at 367; J.A. at 103; Martorano, 535 Pa. at 194,

634 A.2d at 1070, is similarly unfounded. A defendant need

“ The Pennsylvania Supreme Court’s interpretation of the federal

double jeopardy doctrine in this case is reminiscent of its interpretation

of federal double jeopardy doctrine in Smalis v. Pennsylvania, 476 U.S.

140 (1986), and is erroneous for the same reasons. Here, as in Smalis,

the court ruled that a trial court’s entry of judgment for the defendant

as a matter of law (a directed verdict in this case; in Smalis, a demur-

rer) “is not a factual determination” and therefore “is not the functional

equivalent of an acquittal.” Smalis, 476 U.S. at 143. This Court

explained that a demurrer - which enters judgment for the defendant

as a matter of law when the evidence was insufficient to permit a

conviction — “is an acquittal under the Double Jeopardy Clause.” Jd. at

144. Similarly, here, a directed life verdict - which enters judgment for

the defendant as a matter of law when the prosecution’s evidence was

insufficient to permit a death sentence because the prosecution has not

met its burden of persuading all twelve jurors that death is the

appropriate punishment - also is an acquittal under the Double

Jeopardy Clause. Indeed, Smalis makes clear that even an erroneous

ruling of law that results in the imposition of a life sentence in a capital

sentencing proceeding amounts to an acquittal of death for double

jeopardy purposes. Jd. at 145 n.8.

27

not establish his factual innocence of death to demonstrate

his “legal entitlement to a life sentence” any more than he

must establish factual innocence of an offense to be legally

entitled to a guilt-stage acquittal. Where the state has the

burden of persuasion on the issue of death, a defendant

need only show that the state has failed to carry its

burden by failing to persuade. :

As described above, a jury's failure to unanimously

agree that death should be imposed amounts to a decision,

by operation of Pennsylvania law, that death is not the

appropriate punishment. Pennsylvania law explicitly

states that a death sentence is permissible only when (1)

the sentencing jury unanimously agrees both that the

state has proven one or more aggravating circumstances

and that the defendant has proven no mitigating circum-

stances; or (2) the sentencing jury unanimously agrees

that the aggravating circumstance(s) that all jurors have

found to exist outweigh the combination of mitigating

circumstances that any of the jurors have found to exist.

When this does not occur, either because the weighing

process has produced a unanimous life verdict or because

the jurors cannot reach unanimity, the defendant is legally

entitled to a life sentence.

Likewise, the trial court is not required to make any

specific factfindings as to the existence of aggravating and

mitigating circumstances or their relative weight before

imposing a life sentence. The only facts that the court

must find to establish a defendant’s legal entitlement to a

life sentence are that the sentencing jury is not unanimous

and that the non-unanimous jury is deadlocked. Satta-

zahn, 563 Pa. at 548, 763 A.2d at 367; J.A. at 103 (“Under

Pennsylvania’s sentencing scheme, the judge has no

discretion to fashion sentence once he finds that the jury is

28

deadlocked. The statute directs him to enter a life sen-

tence.”). The consequences of that deadlock — that the

Commonwealth has failed to muster evidence sufficient to

convince the jury to impose death —- mandates “enter[ing]

an ‘acquittal,’ i.e., a life sentence.” Smalis, 476 U.S. at 145

n.8. At that point, “the Double Jeopardy Clause bar(s] a

second sentencing hearing.” Jd.

As set forth above, the decisions of Pennsylvania’s

supreme court assert that double jeopardy attached in

Bullington only because the acquittal of death by the

sentencing jury in that case was unanimous. They assert

that double jeopardy attached in Rumsey because of the

nature of the trial court’s factfinding, rather than the

nature of the trial court’s judgment.” But this Court has

" The Pennsylvania Supreme Court misreads Rumsey as requiring

a specific factfinding of aggravating and mitigating circumstances that

could legally support no sentence other than life before the resulting

judgment could amount to an acquittal on the merits. But Rumsey said

no such thing. It said, “as required by state law, the court then entered

judgment in respondent's favor on the issue of death. That judgment .. .

amounts to an acquittal on the merits and, as such, bars any retrial of

the appropriateness of the death penalty.” Rumsey, 467 U.S. at 211. The

Court, per Justice O’Connor, indicated in a subordinate clause that the

judgment in that particular case had been “based on findings sufficient

to establish legal entitlement to the life sentence,” id., but did not say —

as Pennsylvania erroneously contends —- that the judgment could not

amount to an acquittal on the merits unless it was based on findings

sufficient to establish legal entitlement to the life sentence. This Court

has consistently held that any judgment in the defendant’s favor - even

one that is based on erroneous factfinding that (but for the error) would

be insufficient to establish legal entitlement to a life sentence or guilt-

stage acquittal - implicates double jeopardy and bars retrial. In this

case, the trial judge, “as required by state law,” entered a directed

verdict of life that constituted a “judgment in respondent’s favor on the

issue of death.” That judgment - even though produced by a jury

deadlock, “amounts to an acquittal on the merits and, as such, bars any

retrial of the appropriateness of the death penalty.”

29

never read either case that way. This Court’s conception of

an “acquittal” of death is the imposition of a life sentence

after a trial-like proceeding tried to completion. Schiro v.

Farley, 510 U.S. 222, 232 (1994); Poland v. Arizona, 476

U.S. 147, 152 (1986); Smalis v. Pennsylvania, 476 U.S.

140, 145 n.8 (1986); Arizona _v. Rumsey, 467 U.S. 203, 211

(1984); Bullington v. Missouri, 451 U.S. 430, 445-46

(1981).

Bullington turned on the procedural requirements

that made Missouri’s capital sentencing proceeding

trial-like, 451 U.S. at 433-35, and repeatedly stressed that

the binary choice of sentences resulting from those

proceedings — either life or death’ — would determine

whether the prosecution had proven its case for death, id.

at 444-45. Moreover, the Court expressly included among

its description of the “substantive standards” and “proce-

dural protections” that qualified Missouri life sentences for

double jeopardy protection that “(iJf the jury is unable to

agree, the defendant receives the alternative sentence of

life imprisonment.” Jd. at 435.

Thus, as described earlier, “the Double Jeopardy

Clause applies to Missouri’s capital sentencing proceeding”

— not just to a unanimous jury verdict — and bars imposi-

tion of the death penalty on retrial whenever “an initial

conviction, set aside on appeal, has resulted in rejection of

the death sentence.” Rumsey, 467 U.S. at 209. It similarly

“ Bullington, 451 U.S. at 432 (“Missouri law provides two, and

only two, possible sentences for a defendant convicted of capital

murder: (a) death, or (b) life imprisonment without eligibility for

probation or parole for 50 years.”); id. at 440 (“Bullington’s Missouri

jury was given - and under the State’s statutes could be given — only

two choices, death or life imprisonment.”).

30

applies to Arizona’s capital sentencing proceeding, id. at

209-10; Poland v. Arizona, 476 U.S. 147, 154 n.4 (1986),

and to Pennsylvania's.

Furthermore, the historic policies underlying the

Double Jeopardy Clause make clear that the Fifth

Amendment's double jeopardy protections attached when

Petitioner’s first penalty phase was tried to completion

and produced a final judgment of life - whether or not that

life verdict is denominated an “acquittal.”

The Double Jeopardy Clause forbids a second

trial for the purpose of affording the prosecution

another opportunity to supply evidence which it

failed to muster in the first proceeding. This is

central to the objective of the prohibition against

successive trials. The Clause does not allow “the

State ... to make repeated attempts to convict

an individual for an alleged offense,” since “(t]he

constitutional prohibition against ‘double jeop-

ardy’ was designed to protect an individual from

being subjected to the hazards of trial and possi-

ble conviction more than once for an alleged of-

fense.” Green v. United States, 355 U.S. 184, 187

(1957); see Serfass v. United States, 420 U.S. 377,

387-388 (1975); United States v. Jorn, 400 U.S.

470, 479 (1971).

Burks v. United States, 437 U.S. 1, 11 (1978) (footnote and

parallel citations omitted); United States v. DiFrancesco,

449 U.S. 117, 136 (1980).

This Court has held that the values that underlie this

central principle of double jeopardy jurisprudence “are

equally applicable when a jury has rejected the State’s

claim that the defendant deserves to die.” Bullington, 451

U.S. at 445.

ome ~s!

31

~

The “embarrassment, expense and ordeal” and

the “anxiety and insecurity” faced by a defendant

at the penalty phase of a Missouri capital mur-

der trial surely are at least equivalent to that

faced by amy defendant at the guilt phase of a

criminal trial. The “unacceptably high risk that

the [prosecution], with its superior resources,

would wear down a defendant,” id., at 130, 101

S.Ct., at 433, thereby leading to an erroneously

imposed death sentence, would exist if the State

were to have a further opportunity to convince a

jury to impose the ultimate punishment.

Bullington, 451 U.S. at 445. All of these factors are pre-

sented whenever a State seeks a death-after-life sentence:

the “embarrassment, expense and ordeal"; the “anxiety

and insecurity”; the unacceptably high risk that the

prosecution’s superior resources will wear a defendant”

down, are not affected by the formal mechanism by which

the final judgment of life is entered. They are equally

applicable when a judge has rejected the State’s claim that

the defendant deserves to die, e.g., Rumsey, and when, as

in_this case, state law has rejected death by requiring the

judge to direct a life verdict after the prosecution has

failed to meet its burden of persuasion.

The prosecution is unquestionably entitled to “one fair

opportunity” to obtain a capital conviction, Bullington, 451

U.S. at 442 (quoting Burks), but the Double Jeopardy

Clause limits the prosecution to one fair opportunity.

Where jeopardy of death has attached, a trial-like capital

sentencing hearing has been tried to completion, and a

final judgment of life has been entered, the defendant's

” And particularly, as here, an indigent defendant.

32

jeopardy of death has terminated and, if he successfully

appeals the underlying conviction, he may not be subjected

to a second jeopardy of death.

This Court’s November 1994 decision in Schiro v.

Farley, 510 U.S. 222 (1994) eliminates any possible doubt

as to the applicability of the Fifth Amendment’s double

jeopardy protections to Petitioner’s second capital sentenc-

ing trial. Under double jeopardy, this Court wrote, “the

primary evil to be guarded against is successive prosecu-

tions: ‘{TJhe prohibition against multiple trials is the

controlling constitutional principle.’” Jd. at 230 (quoting

United States v. DiFrancesco, 449 U.S. 117, 132 (1980)).

Thus, this Court explained in language that could not be

much clearer, the “one fair opportunity” Bullington affords

to prosecute a defendant “extends not only to prosecution

at the guilt phase, but also to present evidence at an

ensuing sentencing proceeding”; Bullington establishes a

double jeopardy “prohibition against a second capital

sentencing proceeding.” Id. at 230. The Court unequivo-

cally declared that a “capital sentencing proceeding ‘[is]

itself a trial on the issue of punishment,” and that “re-

quiring a defendant to submit to a second, identical

proceeding [would be] tantamount to permitting a second

prosecution of an acquitted defendant.” Jd. at 232.

The Commonwealth of Pennsylvania was afforded a

fair opportunity to present evidence against Petitioner in

the capital sentencing proceedings in his first trial. The

capital sentencing jury in that trial was not unanimously

persuaded that he should be sentenced to death: on the

contrary, three-quarters of the jurors believed that Peti-

tioner should be sentenced to life imprisonment. Because

the jury was unable to reach a unanimous sentencing

verdict, the Pennsylvania capital sentencing statute

33

required the trial court to impose a life sentence as a

matter of law Pursuant to that law, the court directed a

verdict of life imprisonment and entered a final sentence

of life without possibility of parole. Petitioner’s capital

retrial after successfully challenging his unconstitutional

conviction “was tantamount to permitting a second prose-

cution of an acquitted defendant,” Schiro, 510 U.S. at 232,

and was barred by double jeopardy.

The capital sentencing jury in Petitioner’s first trial

could not properly have returned — and the Common-

wealth of Pennsylvania could not have imposed — a death

verdict so long as the prosecution had failed to persuade

any of the sentencing jurors (let alone nine of twelve) that

death was the appropriate punishment.

Since we necessarily afford absolute finality to a

jury’s verdict of acquittal - no matter how erro-

neous its decision — it is difficult to conceive how

society has any greater interest in retrying a de-

fendant when, on review, it is decided as a mat-

ter of law that the jury could not properly have

returned a verdict of guilty.

Bullington, 451 U.S. at 442-43 (quoting Burks, 437 U.S. at

16); Poland v. Arizona, 476 U.S. at 153 n.2 (same).

David Sattazahn was sentenced to death after obtain-

ing a life sentence when initially placed in jeopardy.

Subjecting him to successive capital prosecutions, includ-

ing twice facing the hazards of a capital sentencing hear-

ing, violated double jeopardy. His death sentence must be

vacated, and Pennsylvania forever barred from seeking

death in his case.

34

Il. The Capital Retrial of David Sattazahn after

His First Capital Sentencing Proceeding Re-

sulted in the Imposition of a Life Sentence by

Operation of 42 Pa. C.S. § 9711(c)(1)(v) Vio-

lated His Due Process Life and Liberty Inter-

est in the Sentence Mandated by Pennsyl-

vania’s Death Penalty Statute.

When a state mandates certain capital sentencing

procedures or establishes the right to particular appellate,

post-conviction, or post-sentencing review in capital cases,

it creates Fourteenth Amendment life and liberty interests

in those procedures. Evitts v. Lucey, 469 U.S. 387, 393

(1985) (due process interest in state created right to direct

appeal); see Hicks v. Oklahoma, 447 U.S. 343, 346 (1980)

(liberty interest in state-created capital sentencing proce-

dures); Ford v. Wainwright, 477 U.S. 399, 427-31 (1986)

(O’Connor, J., concurring) (the “conclusion ... is inescap-

able that Florida positive law has created a protected

liberty interest in avoiding execution while incompetent”);

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272,

288-89 (1998) (O’Connor, J, with Souter, Ginsburg &

Breyer, JJ., concurring) (life interest in state-created right

to capital clemency proceedings); id. at 291-92 (Stevens, J.,

concurring) (life interest in commutation procedures

“abundantly clear”). Although the right to the particular

procedure is established by state law, the violation of the

life and liberty interest it creates is governed by federal

constitutional law. Hicks, 447 U.S. at 346; Ford, 477 U.S.

at 428-29; see Evitts, 469 U.S. at 393.

This Court’s liberty interest jurisprudence has stressed

several principles that compel its application to Pennsyl-

yvania’s mandatory imposition of a life sentence resulting

from a non-unanimous capital sentencing verdict. First, the

6 a et ee Ey ” A Bt

Denes sensentmensice ene

35

Court’s cases “leave no doubt that where a statute indi-

cates with ‘language of an unmistakable mandatory

character,’ that state conduct injurious to an individual

will not occur ‘absent specified substantive predicates,’ the

statute creates an expectation protected by the Due

Process Clause.” Ford v. Wainwright, 477 U.S. at 428

(O’Connor, J., concurring) (citations omitted). Second, the

Court has specifically determined that constitutional

liberty interests are vested in a defendant when the State

employs particular procedures “as ‘an integral part of the

_.. system for finally adjudicating the guilt or innocence of

a defendant.’” Evitts, 469 U.S. at 393. The process by

which a defendant’s sentence is imposed is an integral

part of that system, even in non-capital cases. In capital

cases, it embodies the system of finally adjudicating life or

death. As a result, a defendant “has a substantial and

legitimate expectation that he will be deprived of his

liberty only to the extent determined by the [sentencer] in

the exercise of its statutory discretion, and that liberty

interest is one that the Fourteenth Amendment preserves

against arbitrary deprivation by the State.” Hicks, 447

U.S. at 346. Arbitrarily denying a defendant the “sentence

to which he was entitled under state law, ... is a denial of

due process.” Id.”

As described earlier, Pennsylvania's sentencing

statute specifies two circumstances in which a death

sentence may be imposed and mandates that “(t]he verdict

must be a sentence of life imprisonment in all other cases.”

“ While Hicks involved jury sentencing, it is beyond question that

the substantiality and legitimacy of a defendant’s expectation in the

sentence “to which he [is] entitled under state law” remains the same

whether he is sentenced by a jury or by the court.

36

42 Pa. C.S. § 9711(c)(1\iv). It further mandates that the

court “shall sentence the defendant to life imprisonment”

if it determines that the jury is unable to reach a unani-

mous verdict. 42 Pa. C.S. § 9711(c)(1)(v).* The life sentence

that results from these procedures is final and unappeal-

able by either side.

Pennsylvania also requires both that the trial court

instruct the jury as to the legal consequences of its failure

to reach a verdict, 42 Pa. C.S. § 9711(c)(1), and provide the

capital sentencing jury a verdict slip that specifically

explains that “the judge will sentence the defendant to life

imprisonment,” Pa. R. CRIM. P. 358A (capitalization and

emphasis omitted), if the jury cannot reach a unanimous

verdict. As a result, sentencing juries know from the

outset of deliberations that by disagreeing on the applica-

ble sentence, the defendant will receive a life sentence.

The jury in Petitioner’s initial trial was provided and read

this verdict slip, and knew that when it could not reach a

unanimous verdict Petitioner would be sentenced to life.”*

“ The Pennsylvania courts have recognized the mandatory

character of the trial court’s sentencing obligation. Commonwealth v.

Sattazahn, 563 Pa. at 539, 763 A.2d at 362; J.A. at 92 (court “entered a

mandatory life sentence” under subsection (c)(1)(v)); Jones, 546 Pa. at

199, 683 A.2d at 1199 (“subsection (c)1)(v) ... mandates that a court

impose a life sentence where the jury is unable to reach a unanimous

agreement”); Martorano, 535 Pa. at 194, 634 A.2d at 1070 (1993) (once

judge finds that the jury is deadlocked, “(t]he statute directs him to

enter a life sentence”).

* This instruction creates a substantial and legitimate expectation

in the jury as well as in the defendant that, in the event of a jury

deadlock, the defendant will be sentenced to life. This removes the

incentive for jurors who favor life to try to convince death-leaning jurors

to reach a unanimous verdict because the jurors know the ultimate

sentence will remain the same whether the verdict for life is 12-0 or, in

(Continued on following page)

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be et ee eeri* “

i te is ca te I lS Das a tn chee ert ee

37

There can be no debate as to whether the discharge of

a non-unanimous capital sentencing jury under 42 Pa.

C.S. § 9711(c)(1)(v) actually produces a “sentence to which

{a defendant is] entitled under state law.” Hicks, 447 U.S.

at 346. The procedures are statutorily delineated; their

character is unmistakably mandatory. Ford v. Wainwright,

477 U.S. at 428 (O’Connor, J., concurring). They are an

integral part of Pennsylvania’s system for finally adjudi-

cating whether a capital defendant will live or be sen-

tenced to die. The Commonwealth cannot seek to empanel

a new jury or to appeal the sentence. And the defendant,

as verdict winner, has no basis or need to appeal. By

establishing sentencing procedures that require the

imposition of a life sentence whenever a capital sentencing

jury does not unanimously agree to impose death, and

requiring the judicial imposition of a life sentence when

the jury cannot agree on a sentence, Pennsylvania created

a substantial and legitimate expectation that a capital

defendant who receives a judicially-imposed directed

verdict for life resulting from a non-unanimous jury will

not instead be subject to execution for his offense.

this case, 9-3. Similarly, a death-leaning juror may hold out simply to

make a point, even though he might ultimately have voted for life if he

knew that deliberations would continue until the jury reached a

unanimous decision.

Whereas both the defendant and the jury know that a deadlocked

jury and a jury that is unanimous for life produce the same outcome,

neither the defendant nor the jury has any notice that a non-

unanimous verdict might possibly produce a “second-class” life verdict

that could expose the defendant to a death sentence should he choose to

appeal his conviction. In these circumstances, it is unfair to penalize

the defendant — and a disservice is done to those jurors who would have

pressed for unanimity — by sub silentio transforming the directed life

verdict into a provisional life sentence.

38

That expectation is strengthened by two things

Pennsylvania has not done, but which it would reasonably

be expected to have done if it did not regard the directed

life verdict as final. First, Pennsylvania makes no statu-

tory distinction of any kind between the treatment of life

sentences imposed by judicially directed verdicts and those

imposed by unanimous juries, much less in the event the

defendant successfully appeals his conviction. Second,

Pennsylvania did not inform either the sentencing jury or

Petitioner that a successful appeal could jeopardize a non-

unanimous (but not a unanimous) life verdict and render

Petitioner’s life sentence a nullity. These omissions

strengthen the already substantial and legitimate expecta-

tion that Pennsylvania would respect the life sentence

that was mandated by its sentencing laws.

Pennsylvania was not constitutionally compelled to

follow this approach.”’ Nonetheless, it chose to create this

entitlement and did so in language of unmistakably

mandatory character. Having done so, due process protects

Petitioner from any arbitrary deprivation of the life

sentence he received by operation of Pennsylvania law.

Hicks, 447 U.S. at 346-47; see also Ohio Adult Parole

Authority v. Woodard, 523 U.S. at 292-93 (Stevens, J.,

_concurring) (same re: appellate and post-conviction reme-

dies); Ferd, 477 U.S. at 430-31 (O’Connor, J., concurring).

Because Pennsylvania’s statute, in the words of Justice

Ginsburg, “does not provide for a second shot at death”

Among numerous possible alternatives, the Commonwealth

could have provided that a jury deadlock “would have resulted in

impaneling a second jury,” United States v. Jones, 2002 WL 464678 (5th

Cir. March 27, 2002), or the empaneling of a three-judge panel to

conduct a sentencing hearing and determine sentence, e.g., NEV. REV.

Stat. § 175.556 (West 2002).

39

following a deadlocked jury, Jones v. United States, 527

U.S. 373, 418 (1999) (Ginsburg, J., dissenting on other

grounds), treating Petitioner as death-eligible and subject-

ing him to a second capital trial and a successive capital

sentencing proceeding arbitrarily denies him this constitu-

tionally protected right.

Perhaps if the life and liberty interests implicated in

this case attached after conviction and sentencing, “the

demands of due process [might be] reduced.” Woodard, 523

U.S. 272, 288 (1998) (O’Connor, J., joined by Souter,

Ginsburg & Breyer, JJ., concurring); id. at 290-94

(Stevens, J., concurring in part and dissenting in part).”

But this is not such a case. Here, Pennsylvania had not

“established its right to [capitally] punish” David Satta-

zahn at the time his life and liberty interest attached in

this case. Indeed, the outcome of David Sattazahn’s first

trial instead established that Pennsylvania was disentitled

to capitally punish Petitioner, heightening rather than

diminishing his expectation in a life sentence.

Moreover, David Sattazahn’s life interest in full

enforcement of the life sentence imposed at his first trial

by operation of Pennsylvania law makes his due process

interest even stronger than the liberty interests present in

non-capital cases because the need for heightened reliabil-

ity in capital sentencing adjudications requires more

For example, Ford v. Wainwright, 477 U.S. 399 (1986) (liberty

interest in not being executed while incompetent) and Ohio Adult

Parole Authority v. Woodard, 523 U.S. 272 (1998) (life and liberty

interest in executive clemency proceedings).

* Woodard, 523 U.S. at 288 (O'Connor, J., concurring) (quoting

Ford, 447 U.S. at 429 (O’Connor, J., concurring in result)).

40

solicitous treatment by the Courts. As Justice Stevens has

explained:

The interest in life that is at stake in this case

warrants even greater protection than the inter-

ests in liberty at stake in [non-capital] cases. For

“death is a different kind of punishment from

any other which may be imposed in this country.

From the point of view of the defendant, it is dif-

ferent in both its severity and its finality ....

From the point of view of society, the action of

the sovereign in taking the life of one of its citi-

zens also differs dramatically from any other le-

gitimate state action. It is of vital importance to

the defendant and to the community that any de-

cision to impose the death sentence be, and ap-

pear to be, based on reason rather than caprice

or emotion.” Gardner v. Florida, 430 U.S. 349,

357-58, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393

(1977) (citations omitted) (plurality opinion).

Woodard, 523 U.S. at 293-94.

Once Pennsylvania created the mandatory entitle-

ment to a life sentence, it was not at liberty to retroac-

tively rescind the right by subsequently approving a

second capital trial for a defendant whose right to a

mandatory life sentence had already vested. Subjecting

Petitioner to a capital resentencing hearing and the

resulting death sentence, when the Commonwealth had no

basis or ability to challenge the life sentence he received in

his original trial and when neither the sentencing statute

nor the trial court gave Petitioner notice that a successful

appeal of his conviction could have any possible implications

41

for that life sentence,” constituted an arbitrary denial of

Petitioner’s life and liberty interest in that life sentence.

This Court should reverse Petitioner’s death sentence, and

enforce his life and liberty interest in the directed life

verdict that was mandated by Pennsylvania’s capital

sentencing statute.

* The record is devoid of any evidence that anyone at any time

“prior to overturning his conviction ever alerted Petitioner to the

possibility that a successful appeal could place his life in jeopardy.

42

CONCLUSION

For all the foreguing reasons, this Court should

reverse David Sattazahn’s death-after-life sentence as

having been imposed in violation of the Double Jeopardy

Clause of the Fifth Amendment and the Due Process

Clause of the Fourteenth Amendment. This Court should

grant Petitioner relief and remand this case to the Su-

preme Court of Pennsylvania with directions to impose a

sentence of life imprisonment.

Dated: June 3, 2002

Respectfully submitted,

ROBERT BRETT DUNHAM

Counsel of Record

ANNE L. SAUNDERS

DEFENDER ASSOCIATION

OF PHILADELPHIA

Federal Court Division

Suite 545 West, The Curtis Center

Independence Square West

Philadelphia, PA 19106

(215) 928-0520

JOHN T. ADAMS, ESQUIRE

LINTON, DISTASIO, ADAMS

& PALANGE, PC.

1720 Mineral Springs Road

P.O. Box 461

Reading, PA 19603-0461

(610) 374-7320

Counsel for Petitioner, David

Allen Sattazahn