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Geschwendt v. Ryan

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


argued: September 5, 1991.

GEORGE GESCHWENDT, APPELLANT
v.
JOSEPH M. RYAN, SUPERINTENDENT (WARDEN); AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; ERNEST PREATE; AND THE DISTRICT ATTORNEY OF BUCKS COUNTY

On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 90-4043.

Stapleton, Greenberg and Aldisert, Circuit Judges.

Author: Aldisert

Opinion OF THE COURT

The major question for decision in this appeal by George Geschwendt from a denial of federal habeas corpus relief is whether he was deprived of liberty without due process of law in violation of the Fourteenth Amendment when he was convicted of first-degree murder by a Pennsylvania jury that was not given the option of finding him not guilty by reason of insanity. Secondary issues are whether Geschwendt exhausted this argument before the state court system, and whether his counsel's failure to raise the argument on direct appeal constituted ineffective assistance of counsel.

We hold that Geschwendt has exhausted his due process claim and that he was denied his due process rights under the Fourteenth Amendment. Accordingly, we will reverse the judgment of the district court and remand with instructions to enter an order granting the petition for habeas corpus and directing Geschwendt's release from custody unless the Commonwealth of Pennsylvania grants him a new trial within a reasonable period of time.

The district court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, following the district court's grant of a certificate of probable cause. The appeal was timely filed under Rule 4(a), F.R.A.P.

I.

The facts surrounding the killing of five members of the Abt family and a family friend were not disputed at trial. Sometime prior to March 12, 1976, Geschwendt purchased a .22 caliber revolver, which he falsely reported stolen on the day of the purchase. On March 12, at approximately 8:30 a.m., he took the gun and ammunition, walked across the street to the Abt residence and broke into the house. Over the course of the next several hours, he shot and killed five members of the Abt family and a boyfriend of one of the Abt daughters as they returned from work or school. After each shooting, he dragged the body of the victim into the cellar and cleaned up all evidence of the killing. At approximately 6:30 p.m., when the telephone began to ring repeatedly, he left the Abt residence by the front door and returned to his home across the street by an indirect route.

When he arrived home, Geschwendt concealed the gun, the rubber gloves he had worn during the shootings and his blood-stained clothing in the saddle bags of his motorcycle. On the next day, he drove to the Delaware River, where he disposed of his shoes and the rubber gloves. He donated the clothing to Goodwill Industries after washing it to remove all visible evidence of blood. He threw the gun, the spent casings and unused ammunition into a creek.

Geschwendt subsequently confessed to the killings. At trial in 1976, his sole defense was insanity. The court instructed the jury that it could return only two possible verdicts -- guilty or not guilty -- even though defense counsel requested an instruction on a third possible verdict of not guilty by reason of insanity. Defense counsel argued that Pennsylvania law required such an instruction when a defense of insanity was raised.

Following his conviction on all six murder counts, Geschwendt appealed first to the Superior Court and then to the Pennsylvania Supreme Court, alleging five assignments of error. Both courts affirmed the trial court's judgments of sentence, with the Supreme Court being divided, 4-3. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982). Geschwendt then filed a pro se habeas petition in federal court asserting the same five assignments of error. The magistrate judge appointed counsel.

On February 4, 1991, the magistrate judge issued a report recommending that the district court grant the petition for writ of habeas corpus "for failure of the trial court to charge the jury as to the possible verdict of not guilty by reason of insanity in violation of Petitioner's due process rights." Mag. Rpt. at 35; App. at 66A. On March 20, 1991, the district court rejected this recommendation and denied the petition for three reasons: (1) the record strongly suggests that Geschwendt has not exhausted his alternative verdict claim before the state court; (2) the trial judge's failure to charge on the alternative verdict did not violate Geschwendt's due process rights; and (3) even if the trial judge did err, the error was harmless. D.C. Mem. at 9-17; App. at 75A-83A. On April 4, 1991, the district court issued a certificate of probable cause, and this appeal followed.

II.

Geschwendt argues that his due process rights were violated when the trial court rejected his request for a jury instruction on a third alternative verdict of not guilty by reason of insanity. The Commonwealth responds that this argument must fail because (1) Geschwendt has not exhausted the argument before the state court; (2) the trial court did not err because the alternative verdict instruction was not required by law at the time of trial; (3) even if an error did occur, it did not amount to a constitutional violation; and (4) even if a constitutional violation did occur, it was harmless error,

The determination that a habeas petitioner has not exhausted state remedies involves the application and interpretation of legal precepts, and thus receives plenary review. Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir. 1986), cert. denied, 480 U.S. 938 (1987). Whether the trial court erred in failing to instruct the jury on a third alternative verdict also is a question of law subject to plenary review. Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988). In a habeas proceeding, however, we do not consider whether the instruction was erroneous or undesirable, but whether the defective instruction "'so infected the entire trial that the resulting conviction violates due process.'" Polsky v. Patton, 890 F.2d 647, 650 (3d Cir. 1989) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).

III.

We are faced here with an appeal by an individual who was convicted by a state court jury in a high-profile, mass-murder case. In a case such as this, where it is difficult to muster any sympathy for the appellant, determining whether the state trial court protected his constitutional rights is an onerous responsibility that necessarily taxes the objectivity, if not the very integrity, of the federal judicial system in its obligation to process the Great Writ.

Federal judges are keenly aware that as we measure the contours of the Constitution, we do not engage in a popularity contest. Our role as ultimate guardians of the Bill of Rights is to insure that society, when prosecuting those who breach its rules of conduct, does not breach its own rules of procedure, which are enshrined in the Constitution. Our task in federal collateral review of state convictions, therefore, is not to ask whether the habeas petitioner has violated rules of social conduct, but only whether society has respected the rules it has established to guarantee fair trials.

Before we embark on this examination, we must consider the rule of comity that exists between the state and federal judicial systems. This rule generally requires a federal habeas petitioner to exhaust all constitutional claims in the state court system before proceeding to federal court. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 510 (1982). Here we must decide whether Geschwendt has exhausted his due process claim in the Pennsylvania courts.

Geschwendt argues that he was deprived of the protections of the due process clause when his jury was denied the option of considering three alternative verdicts at his murder trial: guilty, not guilty or not guilty by reason of insanity. Although the plurality opinion in Commonwealth v. Geschwendt, 500 Pa. at 135 n.8, 454 A.2d at 999 n.8, stated that the issue had not been raised on appeal, three of the justices addressed it in detail. See id. at 136-39, 454 A.2d at 1000-01 (Roberts, J., dissenting). In Bisaccia v. Attorney Gen. of State of N.J., 623 F.2d 307 (3d Cir.), cert. denied, 449 U.S. 1042 (1980), we suggested that where a petitioner claims to have raised a due process claim in the state system, and the state court majority opinion does not squarely address the petitioner's due process claim, the analysis in the dissenting opinion may be deemed a factor supporting the conclusion that the habeas claim was fairly presented to the state court. Id. at 311.

Although we are satisfied that exhaustion is present under the teachings of Bisaccia, we believe even more evidence of exhaustion exists here. First, after criticizing the dissent for addressing an issue not before the court, Justice Nix, writing for the plurality, proceeded to meet the very question: "Nor is [the purported denial of the third possible verdict of not guilty by reason of insanity] supported by the record when the charge is viewed as a whole." Commonwealth v. Geschwendt, 500 Pa. at 135 n.8, 454 A.2d at 999 n.8. Second, Geschwendt's brief before the Pennsylvania Supreme Court evidently raised the issue: "'Certainly if the jury was not informed of this permissible verdict, a full and informed decision could not be made. This is so because consideration would only be given to two of three permissible verdicts.'" Id. at 139 & n.4, 454 A.2d at 1001 & n.4 (Roberts, J., dissenting) (quoting Appellant's Brief at 26). We conclude, therefore, that Geschwendt has exhausted his state remedies.

IV.

We now turn to the principal contention presented in this appeal that due process guaranteed Geschwendt the fair opportunity to present his insanity defense to this Pennsylvania jury, see United States ex rel. Smith v. Baldi, 192 F.2d 540, 544 (3d Cir. 1951), aff'd, 344 U.S. 561 (1953), and that this opportunity was foreclosed when the trial court refused to instruct the jury that it could return a verdict of not guilty by reason of insanity. Geschwendt makes a classic procedural due process argument that he was deprived of both a quality and quantum of liberty in the sense of freedom from physical restraint because his jury was not permitted to make an "informed judgment" regarding the possibility of reaching a verdict of not guilty by reason of insanity. He argues that had the jury rendered such a verdict, he would have been confined to a mental institution, rather than to a prison, and his period of confinement under Pennsylvania law would have been for "so long as [he] shall continue to be of unsound mind," rather than for life. See 19 Pa. Stat. Ann. § 1351 (Purdon 1964).

Because this is the issue for decision, it is important to emphasize what is not. This is not a case controlled by the holding in Schad v. Arizona, U.S. , 111 S. Ct. 2491 (1991), as vigorously urged by the dissent. We do not consider that holding as authority to excuse the trial court's refusal to instruct the jury on the possible verdict of not guilty by reason of insanity. In Schad, the Court held that the refusal to charge on the lesser-included offense of robbery was harmless error. Applying Beck v. Alabama, 447 U.S. 625 (1980), the Court determined that the fact "that the jury's 'third option' was second-degree murder rather than robbery [did] not diminish the reliability of the jury's capital murder verdict." U.S. at , 111 S. Ct. at 2505. But the court explained:

That is not to suggest that Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence. Cf. Roberts v. Louisiana, 428 U.S. 325, 334-35 (1976) (plurality opinion). In the present case, however, petitioner concedes that the evidence would have supported a second-degree murder conviction, Brief for Petitioner 18-19, and that is adequate to indicate that the verdict of capital murder represented no impermissible choice.

Id. (emphasis added). By "no impermissible choice," the Court meant that the alternative instruction in that case was supported by the evidence and thus represented a viable option for the jury. In the present case, however, the lesser-included offenses were third-degree murder and voluntary manslaughter. Under Pennsylvania law in effect at the time of Geschwendt's trial, a conviction of either of these offenses would have required the jury to find that Geschwendt's acts were not "wilful, deliberate, intentional and premeditated." App. at 101A.

Such a finding would have been in stark contrast with the uncontroverted evidence, as the dissent ably points out: "This was a cold-blooded calculated mass homicide carefully planned by a vicious criminal who subsequently attempted to cover-up his heinous acts." Dissent Typescript at 20-21. Leaving aside for a moment the question of Geschwendt's sanity, these acts were wilful, deliberate, intentional and premeditated, and the jury could not have found otherwise. Because the charges on third-degree murder and voluntary manslaughter were not supported by the evidence, this case is outside the holding of Schad.

Our conclusion is further supported by precedent of this court. In Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir. 1988), we determined that the district court had erred in failing to instruct the jury on the lesser-included offense of aggravated assault, which was supported by the record. Engaging in a harmless error analysis, we held that "the instruction on simple manslaughter was not a constitutionally adequate substitute for an instruction on aggravated assault" because it "did not necessarily offer the jury a rational compromise between aggravated manslaughter and acquittal; only an aggravated assault charge could do that." Id. at 1028.

Accordingly, we believe that the trial court's instructions on the lesser-included offenses of third-degree murder and voluntary manslaughter in Geschwendt's case were not viable alternatives on this record, and that these instructions were not a constitutionally adequate substitute for the instruction on the third alternative verdict of not guilty by reason of insanity.

Moreover, we do not have a claim that in 1976 the court was required to instruct the jury as to the consequences of a verdict of not guilty by reason of insanity. We also do not have a claim that Pennsylvania law is constitutionally infirm because it does not permit an insanity defense. The Commonwealth of Pennsylvania recognizes this defense and has done so since it was one of the original thirteen colonies. See Commonwealth v. Smith, 374 Pa. 220, 226-27, 97 A.2d 25, 29 (1953) (restating rule that a person has a right not to pay the penalty for an action if his or her mental condition does not satisfy the legal test for sanity); Commonwealth ex rel. Smith v. Ashe, 364 Pa. 93, 106-07, 71 A.2d 107, 115, cert. denied, 340 U.S. 812 (1950) (recognizing that an individual's insanity at the time of an offense requires an acquittal). Thus, Chief Justice Rehnquist's casual observation in Ake v. Oklahoma, 470 U.S. 68, 91 (1985) (Rehnquist J., dissenting), that "it is highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant," is not applicable here.

What is presented for our consideration is a fundamental concept, properly expressed in the teachings of Hicks v. Oklahoma, 447 U.S. 343 (1980):

Where . . . a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. That defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner's right to liberty is a denial of due process of law.

Id. at 346 (citations omitted) (footnote omitted). This court specifically has recognized that when a state, such as Pennsylvania, has created an insanity defense, "due process guarantees all defendants fair opportunity to present the defense." United States ex rel. Smith v. Baldi, 192 F.2d at 544; see also Thomas v. Cunningham, 313 F.2d 934, 938 & n.7 (4th Cir. 1963) ("Procedural due process requires that a state shall afford [a defendant] adequate opportunity to raise [an insanity defense].").

As stated before, Geschwendt alleges that the trial court's denial of an opportunity for confinement to a mental institution for "so long as [he] shall continue to be of unsound mind," instead of to a prison for life, deprived him of both a quality and quantity of liberty. "To deny [a defendant] the possibility of a lesser restraint of liberty because of a practice which permits arbitrary trial court activity is offensive to . . . settled concepts of due process." United States ex rel. Matthews v. Johnson, 503 F.2d 339, 345 (3d Cir. 1974) (in banc), cert. denied, 420 U.S. 952 (1975).

Involved here are those precepts of constitutional law that concern "the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states." Palko v. Connecticut, 302 U.S. 319, 327 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). Freedom from physical restraint without due process of law is among those "'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,'" Powell v. Alabama, 287 U.S. 45, 67 (1932) (quoting Herbert v. Louisiana, 272 U.S. 312, 316 (1926)); is "basic to our system of jurisprudence," In re Oliver, 333 U.S. 257, 273 (1948); and is "essential to a fair trial." Gideon v. Wainwright, 372 U.S. 335, 342-44 (1963); see Pointer v. Texas, 380 U.S. 400, 403 (1965).

With these revered axioms of procedural due process as a jurisprudential backdrop, we now turn to an examination of the substantive Pennsylvania law governing the trial of criminal cases.

V.

At the time of Geschwendt's trial in 1976, two Pennsylvania statutes required that a jury acquitting a defendant on the basis of insanity state the reason for such acquittal in the verdict. First and foremost, the Act of March 31, 1860, P.L. 427, § 66, as amended, provided:

In every case in which it shall be given in evidence upon the trial of any person charged with any crime or misdemeanor, that such person was insane at the time of the commission of such offence, and he shall be acquitted, the jury shall be required to and specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity; and if they shall so find and declare, the court before whom the trial is had shall order the cost of prosecution to be paid by the county, and shall have power to order him to be kept in strict custody, in such place and in such manner as to the said court shall seem fit, at the expense of the county in which the trial is had, so long as such person shall continue to be of unsound mind.

19 Pa. Stat. Ann. § 1351 (Purdon 1964) (emphasis added) [hereinafter "Act of 1860"], repealed by Act of April 28, 1978, P.L. 202, § 2(a)[377], 42 Pa. Cons. Stat. § 20002(a)[377] (Supp. 1982) (effective June 27, 1980). The Mental Health and Mental Retardation Act of 1966*fn1 also provided:

(a) Whenever any person charged with any crime is acquitted on the ground of insanity or having been insane at the time he committed the crime, the jury or the court as the case may be, shall state such reason for acquittal in its verdict.

(b) In such event, the court may direct the Attorney for the Commonwealth to act as petitioner to initiate commitment proceedings under section 406.

50 Pa. Stat. Ann. § 4413 (Purdon 1969), repealed in part by Act of July 9, 1976, P.L. 817, § 502, 50 Pa. Stat. Ann. § 7502 (Purdon 1976).

After presenting insanity as his sole defense, Geschwendt's trial counsel brought the criminal procedure requirements of the Act of 1860, as amended, to the trial court's attention and asked the court to instruct the jury on the possible verdict of not guilty by reason of insanity:

DEFENSE COUNSEL: I would take exception to Your Honor's second failure to charge regarding the specific alternative possibility of a verdict of not guilty by reason of insanity in accordance with 19 Purdon's 1351 which, I believe, requires the instruction be given to the jury -- the option be given to the jury, unless I misread it.

THE COURT: I do not follow you at all on that.

DEFENSE COUNSEL: It's my feeling they should be specifically instructed there is an alternative not guilty verdict which specifically states not guilty by reason of insanity. I believe that's what the statute says.

THE COURT: An exception is granted.

App. at 43A.

On appeal to the Pennsylvania Supreme Court, Geschwendt argued that the trial court erred in refusing to inform the jury of the consequences of a verdict of not guilty by reason of insanity. Commonwealth v. Geschwendt, 500 Pa. at 124, 454 A.2d at 993. The plurality discussed at length whether to give retroactive effect to the holding in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), that a jury must be instructed on the consequences of a verdict of not guilty by reason of insanity. The plurality concluded that it should not, and thus rejected Geschwendt's argument. 500 Pa. at 135, 454 A.2d at 999.

Justice Roberts, writing for the dissent, responded that the retroactivity analysis was unnecessary. Instead, he characterized as "critical" the trial judge's erroneous refusal to "honor the fundamental request of appellant that the jury be instructed 'regarding the specific alternative possibility of a verdict of not guilty by reason of insanity.'" Id. at 136, 454 A.2d at 1000 (Roberts, J., dissenting). Justice Roberts concluded: "Because appellants sanity was a central issue, upon which substantial evidence was offered by both the defense and prosecution, appellant was statutorily entitled to an instruction that would have informed the jury of its right to return a verdict of not guilty by reason of insanity." Id. (Roberts, J., dissenting).

For three separate reasons, we reject the Commonwealth's contention that Pennsylvania trial courts were not compelled to offer this third option verdict in insanity defense cases at the time of Geschwendt's trial in 1976, and that the option did not become required by law until a year later, when the Pennsylvania Supreme Court handed down its decision in Mulgrew.

A.

First, to accept this notion is to suggest that only a court, and not the legislature, may create the substantive law of Pennsylvania. The absurdity of this proposition is manifest. For over 100 years prior to Geschwendt's trial, the legislature had commanded, in one form or another, that "the jury shall be required to find specially whether such person was insane at the time of the commission of such offence, and to declare whether he was acquitted by them on the ground of such insanity," 19 Pa. Stat. Ann. § 1351 (Purdon 1964), or that the "jury or the court as the case may be, shall state such reason for acquittal in its verdict." 50 Pa. Stat. Ann. § 4413(a) (Purdon 1969). It logically follows from the plain language of these statutes that a jury must be instructed on a verdict of not guilty by reason of insanity whenever the insanity defense is raised. A defendant simply cannot be found not guilty by reason of insanity, as directed by the Pennsylvania legislature, if such a verdict is not made known to the jury. See Commonwealth v. Trill, 374 Pa. Super. 549, 567, 543 A.2d 1106, 1114-15 (1988), appeal denied, 522 Pa. 603, 562 A.2d 826 (1989).

Case law demonstrates that Pennsylvania trial judges and practitioners in criminal courts routinely respected the directive of these statutes. Long before the Mulgrew decision, trial judges and lawyers followed the clear language of the Act of 1860 and the teachings of other Pennsylvania Supreme Court cases. For example, as early as 1911, the Pennsylvania Supreme Court discussed the significance of the Act of 1860:

When insanity is set up as a defense to an indictment charging the commission of a crime, it becomes, under the act of 1860, a distinct issue before the jury, and if, in their judgment, the accused ought to be acquitted because he was insane at the time he committed the act charged against him, there must be a special finding by the jury of insanity as the ground of acquittal.

Commonwealth v. Molten, 230 Pa. 399, 402, 79 A. 638, 638 (1911) (emphasis added); accord Commonwealth v. Ragone, 317 Pa. 113, 122-23, 176 A. 454, 458 (1935).

Moreover, in 1959, the Pennsylvania Trial Guide included the following "approved charge" on a defense of insanity:

"The plea of insanity at the time of committing the crime is a well recognized defense. . . . If the defendant has satisfied you by fairly preponderating evidence that he was insane at the time (deceased met his death), although the Commonwealth has convinced you that the defendant did the (killing), you would find him not guilty (by reason of insanity)."

B. Laub, Pennsylvania Trial Guide § 194.1(1), at 368 (1959 & Supp. 1968) (quoting Commonwealth v. Smith, 374 Pa. at 226, 97 A.2d at 29). The cases evidence use of similar instructions. See, e.g., Commonwealth v. Patskin, 372 Pa. 402, 419, 93 A.2d 704, 713 (1953) ("If you find, by the fair weight and preponderance of the evidence, that the defendant . . . was insane within the legal meaning of the term, at the time of the commission of the offense, your verdict must be not guilty by reason of insanity."), cert. denied, 347 U.S. 931 (1954).

B.

Second, the precise issue before the Pennsylvania Supreme Court in Mulgrew was "whether the court below erred in failing to instruct the jury concerning the consequences of a verdict of not guilty by reason of insanity," 475 Pa. at 275, 380 A.2d at 351, and not whether Pennsylvania law required that an instruction be given on the availability of such a verdict. If anything, the issue and decision in Mulgrew presupposed that the jury would be given the option of finding the defendant not guilty by reason of insanity. In overruling its prior decision in Commonwealth v. Gable, 323 Pa. 449, 187 A. 393 (1936), the court held "that it is proper to instruct the jury concerning the possibility of commitment proceedings being initiated against the defendant if such defendant is acquitted of the criminal charge filed against him by reason of an insanity defense." 475 Pa. at 275, 380 A.2d at 351. The court reasoned that

explaining the consequences of acquittal by reason of insanity to a jury will assist the jury in properly determining the guilt or innocence of a defendant. By such an instruction we reduce the possibility of compromise verdicts of guilty occasioned by a jury's misapprehension of "acquitting" a defendant by reason of insanity.

Id. at 276, 380 A.2d at 352. Thus, the purpose of the Mulgrew rule was to clear up any juror confusion regarding the meaning of one of the three possible verdicts required by law in insanity defense cases.

C.

Third, the practice of instructing on the third option verdict was so uniformly recognized in the state that when the issue was presented to the Pennsylvania Supreme Court in 1987, the court held that the failure of defense counsel to request such a verdict constituted ineffective assistance of counsel under the Sixth Amendment. Commonwealth v. Gass, 514 Pa. 287, 294, 523 A.2d 741, 744 (1987). The court concluded that the failure to request an instruction at all was worse than failing to request an instruction regarding the consequences of the third option verdict:

In the instant case, not only was the meaning of a not guilty by reason of insanity verdict not explained to the jury, they were not even advised that it was a possible verdict. Based on the instruction that was given, we cannot assume that they understood that if they believed the insanity defense, they could find the Appellant not guilty by reason of insanity, when they were told there were only five possible verdicts that they could reach. Nor can we speculate as to what the verdict would have been had they been properly instructed.

Id. at 293, 523 A.2d at 744.

VI.

Borrowing the language of the Pennsylvania Supreme Court, we also cannot "speculate as to what the verdict would have been [in this case] had [the jury] been properly instructed." Id. Here we have a man who confessed to the brutal killing of six people over a period of six hours. His only defense was insanity; yet the jury was instructed to bring back an either/or verdict -- guilty or not guilty:

If you would conclude that the Commonwealth has not met its burden as to any of the above, then the Commonwealth should suffer an acquittal and you should find the defendant not guilty and that would be the end as to your deliberations. [App. at 106A.]

As I said to you before, it would appear to me, but again I repeat it . . . for you, that the defendant is either guilty or not guilty of all of the various informations charging him with the killing of the five members of the Abt family and Garson Engle. [Id. at 114A.]

In view of what I have said regarding the legal test of insanity and the Commonwealth's burden of proof, you cannot find the defendant guilty unless you are satisfied beyond a reasonable doubt that at the time of the killing either the defendant had no mental disease or defect or, if he did have a mental disease or defect, that he was not as a result of such disease or defect, incapable of knowing what he was doing or of judging that it was wrong to do what you conclude he did. [Id. at 108A.]

If the Commonwealth has sustained its burden of proof as I have outlined it for you, do not for one moment be fearful to return a verdict of guilty in such degree as you determine the Commonwealth has demonstrated to you. If, on the other hand, the Commonwealth has not sustained its burden of proof, then it is your duty to render a verdict of not guilty and you should not be fearful of doing so. [Id. at 117A.]

Thus, in the matrix given them, the members of the jury reasonably could have concluded that had they found the defendant insane, they would have had to acquit him.

Without the third option verdict, the jurors reasonably could have concluded that a verdict of not guilty would have released this man to the streets, to kill again. This is not only a permissible inference, but a reasonable one, and perhaps, under the circumstances of this case, a compelling one. The jury could have found Geschwendt insane, yet at the same time guilty; it could have found him guilty out of fear of releasing him to kill again. We cannot conclude as a matter of law that the jury could not have so rationalized its verdict. As early as 1860, the Pennsylvania legislature recognized this possible foible in human nature and created a mechanism to discourage, if not totally eliminate, this possibility. That mechanism is the third option verdict of not guilty by reason of insanity, an option that was withheld from the jury in this case. We believe that had the trial court given the jury the option of finding Geschwendt not guilty by reason of insanity, the jury could have concluded, based on the common sense and life experiences of reasonable lay men and women, that such a verdict would have provided a basis for restricting Geschwendt's freedom and for not releasing him to the streets.

Moreover, at the time of Geschwendt's trial, a trial court did not have the power to commit a defendant to a mental institution for treatment unless the jury returned a verdict of not guilty by reason of insanity. See 19 Pa. Stat. Ann. § 1351 (Purdon 1964); 50 Pa. Stat. Ann. § 4413(b) (Purdon 1969); see also Commonwealth ex rel. DiEmilio v. Shovlin, 449 Pa. 177, 178-80, 295 A.2d 320, 321-22 (1972). Thus, if Geschwendt's jury had returned a verdict of not guilty, without an expression that it was based on insanity, the trial court would have had no choice but to release him from custody. We recognize that until Mulgrew the trial court had no duty to instruct the jury on the consequences of a verdict of not guilty by reason of insanity, but we believe that the court's failure in this case to give the jury the option of such a verdict ignored a very important purpose of the statutes: to provide psychiatric treatment for those so mentally imbalanced that society has chosen not to hold them criminally responsible for their acts. By refusing to give the option to the jury, the trial court essentially abdicated its responsibility under Pennsylvania law.

The question then becomes: Did this violation of state law constitute a deprivation of due process under the Fourteenth Amendment? It is to this issue that we now turn.

VII.

The gravamen of the due process deprivation in this case is that under the terms of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 Pa. Stat. Ann. §§ 4406(a), 4413(b) (Purdon 1969), an individual found not guilty by reason of insanity was entitled to "commitment to an appropriate facility for examination, observation and diagnosis," and "if, upon examination, it is determined that such person is in need of care at a facility, the examining physicians or director . . . shall immediately report to [the] court which may order the commitment of such person for care and treatment." The Act of 1860, as amended, 19 Pa. Stat. Ann. § 1351 (Purdon 1964), set forth as a cross reference in 50 Pa. Stat. Ann. § 4413, provided that any commitment to a mental institution for treatment would be for "so long as such person shall continue to be of unsound mind."

Thus, at the time of Geschwendt's trial, the consequences of verdicts under all three options could be summarized as follows: (1) verdict of guilty of murder in the first degree: the death penalty or a life sentence in a penal institution; (2) verdict of not guilty by reason of insanity: probable commitment to a mental institution for care and treatment so long as the impaired mental condition continues; and (3) verdict of not guilty simpliciter: Total freedom. An unconditional acquittal.*fn2

Geschwendt argues that the jurors may have found him insane, but because they were unwilling to release him to the streets, they returned a verdict of guilty that resulted first in a death sentence, and later in a life sentence in a penal institution. From this he argues that he was denied both a quantum and quality of freedom, as embodied in the concept of liberty under the due process clause of the Fourteenth Amendment, because the trial court refused to instruct the jury on the third option as required under Pennsylvania law. We agree.

"Insanity being a defense under Pennsylvania law, due process guarantees all defendants fair opportunity to present the defense." United States ex rel. Smith v. Baldi, 192 F.2d at 544. The trial court here did not afford Geschwendt the required fair opportunity to present his only defense. Although the court permitted him to interpose his insanity defense by argument and by testimony, the jury was allowed to consider it only in terms of a verdict of not guilty simpliciter. Because the jury was denied the opportunity to consider it in connection with the provisions of the Act of 1860, as amended, and the Mental Health and Mental Retardation Act of 1966, we cannot say that he was given a fair opportunity to present the full defense of not guilty by reason of insanity. Accordingly, Geschwendt's trial did not meet the requirements of the due process clause.

VIII.

We need not discuss in depth the remaining contentions. The dereliction in this case, which we deem to be a deprivation of a fundamental right, cannot be considered harmless error. As we stated in Polsky v. Patton, 890 F.2d 647 (3d Cir. 1989), "some constitutional errors can never be harmless," namely, those errors that "either 'aborted' or 'denied' the basic trial process." Id. at 649 (quoting Rose v. Clark, 478 U.S. 570, 578 n.6 (1986)). We hold that the deprivation of a meaningful defense in a mass-murder case aborts or denies the basic trial process.

Having determined that the writ should be granted on the basis of the due process clause, we do not meet Geschwendt's argument that his counsel's failure to raise the third option contention on direct appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.

IX.

The judgment of the district court will be reversed and the cause remanded with instructions that the court enter an order granting the writ of habeas corpus and directing Geschwendt's release from custody unless the Commonwealth of Pennsylvania accords him a new trial within a reasonable period of time. The district court order should provide, of course, that, even in the absence of a new trial, Geschwendt need not be released if he is civilly committed by the state within a reasonable period of time.

GREENBERG, Circuit Judge, dissenting:

I respectfully dissent but before I explain my reasons for doing so I will expand on the majority's description of what happened at Geschwendt's trial. The case was tried in two stages: a culpability stage to determine what offense or offenses, if any, of which Geschwendt was guilty, and then a penalty phase. While the majority says that the trial court "instructed that jury that it could return only two possible verdicts - guilty or not guilty - even though defense counsel requested an instruction on a third possible verdict of not guilty by reason of insanity," typescript at 3-4, this is an incomplete explanation of the charge. It cannot be denied, as the majority later recognizes, that the trial court also told the jury that it could convict Geschwendt of third degree murder if it rendered him incapable of forming the requisite intent for first degree murder which would otherwise have been proven or that it could convict Geschwendt of voluntary manslaughter. Of course, in accordance with Pennsylvania procedure, the judge further told the jury that if it found Geschwendt guilty of first degree murder it would then deliberate again to decide whether the sentence would be life imprisonment or death.

The court was scrupulously fair in its charge on burden of proof and insanity. It told the jury five times that the Commonwealth bore the burden of proving Geschwendt guilty beyond a reasonable doubt, three times that the Commonwealth bore the burden of proving Geschwendt sane beyond a reasonable doubt, and three times that if the Commonwealth failed in its burden to prove Geschwendt sane beyond a reasonable doubt it must find him not guilty. Thus, the first degree murder verdict was returned by a jury fully instructed as to the Commonwealth's burdens. Following the six first degree murder convictions, the case moved to the penalty phase and, after deliberation on that issue, the jury returned a verdict of six sentences of death.

The punishment, however, was not carried out for after the Supreme Court of Pennsylvania invalidated the death penalty in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S. Ct. 3143 (1978), the penalty was changed to life imprisonment. Thereafter the Superior Court of Pennsylvania and then the Supreme Court of Pennsylvania, in a divided decision, affirmed Geschwendt's conviction and the modified sentence. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982).*fn1 The principal issue in the Supreme Court according to the plurality of that court concerned the trial court's refusal to charge the jury on the consequences of a verdict of not guilty by reason of insanity. It upheld the trial court's refusal to so charge on the basis that a change in the law requiring such a charge after Geschwendt's trial would not be retroactive so as to apply in his case.

It is evident therefore that the jury had far more than the two choices emphasized by the majority. Rather, it had four choices at the culpability phase: murder in the first degree; murder in the third degree; voluntary manslaughter; and not guilty.*fn2 It then had two additional choices at the penalty phase: death or life imprisonment.*fn3 As we shall see it is highly significant that at both phases of the trial the jury selected the most severe option possible, first degree murder and then death.

I now turn to the merits of the case. The majority opinion is predicated on its understanding that the trial court did not instruct the jury that it could return a verdict of not guilty by reason of insanity. But as the majority points out, the plurality opinion of the Supreme Court of Pennsylvania held that this conclusion was not "supported by the record when the charge is viewed as a whole." Commonwealth v. Geschwendt, 500 Pa. at 135 n.8, 454 A.2d at 999 n.8. I can understand why a person might question why it is necessary to view the charge "as a whole" in determining whether a particular form of verdict was submitted to the jury. After all, in the usual case a charge is examined "as a whole" to ascertain if it covered an abstract question of law rather than a concrete matter such as a form of verdict.

The answer, however, is obvious. Whatever may be true in other cases, in this case when the charge is examined and is considered against the undisputed facts, the only way that a verdict of not guilty could have been conceivably returned would have been if the jury concluded that the Commonwealth did not prove Geschwendt to be sane because Geschwendt admitted he killed the victims. As the Supreme Court of Pennsylvania said, "the facts surrounding the murders were not disputed." 500 Pa. at 123, 454 A.2d at 992. Even at this late date Geschwendt concedes in his brief that the "defense was insanity" and the majority recognizes this, for in its opinion it indicates that Geschwendt "confessed to the killings" and at the trial "his sole defense was insanity." Typescript at 3. It is apparent, therefore, that the plurality opinion of the Supreme Court of Pennsylvania simply recognized that in this case a general verdict of not guilty would have been tantamount to a verdict of not guilty by reason of insanity. In fact the situation was so clear that the Superior Court simply said that the jury was instructed that it could convict Geschwendt of first degree murder or find him "not guilty by reason of insanity." 271 Pa. Super. at 105, 412 A.2d at 597. Thus, contrary to the majority, I conclude that in substance the trial court did instruct the jury that it could find Geschwendt not guilty by reason of insanity when the instructions are viewed as a whole. Accordingly, I reject the basic premise of its opinion.

I acknowledge, of course, that under state law the Supreme Court of Pennsylvania could require that, no matter how certain it is that a not guilty verdict could be predicated only on a finding of insanity, a new trial is required if the form of verdict does not expressly provide for a finding of not guilty by reason of insanity. But our habeas power is not so broad for we may overturn a state conviction on the basis of a defect in the jury instructions only if a fundamental due process right of the petitioner has been violated. See Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400 (1973). Since the due process right implicated here is based on a theory that the jury might have guessed that a not guilty verdict would permit Geschwendt to be free and the jury would have been reluctant to return such a verdict, I would hold that due process was not violated, as the basis for a not guilty verdict could not have been misunderstood.

I now turn to Schad v. Arizona, 111 S. Ct. 2491 (1991), which controls the outcome of this appeal even if the plurality of the Supreme Court of Pennsylvania was wrong with respect to the meaning of the charge as a whole and even if my first conclusion is also flawed. Thus, in considering Schad, I will treat the charge as though it did not, when viewed as a whole, provide the jury with a not guilty by reason of insanity option. Schad was indicted in Arizona for first degree murder under a traditional statutory formulation defining that offense as either premeditated murder or felony murder. Inasmuch as the murder arose out of an apparent robbery, Schad viewed the evidence as supporting a finding that he was the robber, though not the murderer, and he therefore requested a lesser included offense charge on robbery. Id. at 2504.*fn4 The trial court would not give a robbery charge but it did give a second degree murder charge, as a lesser included offense. Accordingly, the jury had three choices of verdict, as it could have convicted Schad of first or second degree murder or found him not guilty. It convicted him of first degree murder and the court sentenced him to death. The Supreme Court of Arizona affirmed the conviction but the Supreme Court of the United States granted certiorari.

The Supreme Court of the United States addressed two issues on the appeal. The first was whether the jury had to be told that it must be unanimous on its theory underlying its verdict of first degree murder. The Court held that this was not required because the offense involved was simply first degree murder, not the theory of the murder. While the implications of this holding are certainly interesting when applied to other settings in which we require unanimity on issues other than the ultimate finding, we are not concerned with them here.

We are, however, concerned with the second issue relating to the refusal of the trial court to instruct on the possibility of a robbery conviction, for it controls our result. The Court, in language directly applicable to this case, indicated that in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980), it had invalidated an Alabama statute prohibiting lesser included offense instructions in capital cases because it was concerned "that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all." 111 S. Ct. at 2504. It pointed out that in Beck it had "repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented," a concern not present in Schad because Schad's jury did not have an all-or-nothing choice. Id. at 2505. Rather, Schad's jury had a third option to guilty of first degree murder or not guilty, namely second degree murder. Hence the first degree verdict was reliable even though on one view of the evidence, Schad may have been guilty of robbery but not of the homicide. The Court in discussing Schad's argument that the jury might have thought him guilty of robbery though not of murder, but nevertheless convicted him of first degree murder, explained:

To accept the contention advanced by petitioner and the dissent, we would have to assume that a jury unconvinced that petitioner was guilty of either capital or second-degree murder, but loath to acquit him completely (because it was convinced he was guilty of robbery), might choose capital murder rather than second-degree murder as its means of keeping him off the streets. Because we can see no basis to assume such irrationality, we are satisfied that the second degree murder instruction in this case sufficed to ensure the verdict's reliability.

Id. (Emphasis added.)

I cannot imagine why the majority will not apply the reasoning of Schad here. See Hutto v. Davis, 454 U.S. 370, 375, 102 S. Ct. 703, 706 (1982). The majority suggests that judicial "integrity" requires its result. For me, however, the integrity issue is that as judges of a court inferior to the Supreme Court, we must follow the decisions of that Court. In Schad, the trial court refused to give an instruction, supported by the evidence, that would have permitted the jury to return a verdict for a lesser included offense. But the Supreme Court held that the first degree murder verdict was reliable because the jury did not return a verdict for the intermediate offense of second degree murder. Here, even assuming that the jury was not given the option of returning a verdict of not guilty by reason of insanity, its guilty verdict was similarly reliable because it did not return a guilty verdict for either of the lesser included offenses of third degree murder or voluntary manslaughter. The Schad analogy cannot be avoided because Geschwendt's argument as explained by the majority is a mirror image of Schad's: "Geschwendt argues that the jurors may have found him insane, but because they were unwilling to release him to the streets, they returned a verdict of guilty that resulted first in a death sentence, and later in a life sentence in a penal institution." Typescript at 25. Just as the intermediate charge on second degree murder destroyed Schad's argument, the lesser included offense charges on third degree murder and voluntary manslaughter demolish Geschwendt's due process claim.

I have not overlooked the fact that in Schad the Court indicated that it did not suggest that "Beck would be satisfied by instructing the jury on just any lesser included offense, even one without any support in the evidence." 111 S. Ct. at 2505. But Beck was in fact satisfied in Schad because Schad conceded "that the evidence would have supported a second-degree murder conviction." Id.

Here the trial court charged the jury on third degree murder as follows:

Now, if you conclude that the Commonwealth has sustained its burden of proof and has demonstrated by the degree of proof required that the defendant was sane at the time the crimes were committed, and you find that he did commit such crimes and in such degree as you may determine, you still have an additional problem. This problem, however, only arises and comes into play if you have previously concluded that the defendant was guilty of first degree murder.

You will recall that I told you earlier that the main distinction between murder in the first degree and that of third degree lies in the specific intent to take life being required in the former. Such intent to take life supplies the quality of wilfulness, deliberation and premeditation, otherwise essential to murder in the first degree. If you conclude that the defendant did not possess the capacity to form this specific intent to take life, due to a mental defect or disease, that is to say, that he did not possess the capacity to enter into a deliberately premeditated killing, then for those reasons you would not be justified and could not return a conviction of murder in the first degree against him for there would be no rhyme or reason, no logical escape from a proposition that a person cannot be guilty of wilful, deliberate and premeditated killing when he did not act deliberate [sic], premeditated and was not wilful for he was incapable of mentally doing so. If you find that he did not possess sufficient mental capacity to form this specific intent to kill, but nevertheless the killing did result from his act, and he was sane, then this inability to form such an intent would reduce the killing from first degree murder to third degree murder, and that should be your verdict.

This, again, is for the reason that the Commonwealth must prove beyond a reasonable doubt that the defendant possessed the mental capacity to form the required intent to kill as is required for first degree murder. On this problem, namely, whether the defendant possessed a mind capable of forming the specific intent to kill, as with the defense of insanity, you should as I have just told you look to and at all of the testimony both of lay witnesses and expert witnesses and from that testimony make your determination as to whether George Geschwendt was sane, and if so, was he capable of forming the intent which we have just outlined.

App. at 108-10. (Emphasis added.)

This charge was obviously somewhat different from the charge on insanity which provided that a defendant is insane "if at the time of committing any act he is, as a result of mental disease or defect, unable to understand the nature and quality of his act or to distinguish between right and wrong with respect to that act." Yet the third degree murder charge given here is similar to the insanity charge in the most fundamental way: the third degree murder charge diminishes criminal responsibility for a lack of specific mental intent, just as the insanity charge excuses criminal conduct for an inability to form the specific mental intent. In fact if the situation in this case were not so serious it would be almost laughable to suggest that Geschwendt's jury might have returned a verdict of not guilty by reason of insanity if it could have done so but, deprived of that opportunity, found that he had the intent to commit six first degree murders.

Thus, the third degree murder charge supplied a perfect option for the jury to return a guilty verdict for a lesser included offense if it thought that the Commonwealth had not established that Geschwendt was sane but it did not want to acquit him and risk seeing him go free. Yet it returned six verdicts of first degree murder. I reiterate that it is irrational to believe that the jury might have found Geschwendt not guilty by reason of insanity, if given that explicit choice, inasmuch as it rejected a third degree murder verdict after receiving the above charge.

The majority seeks to avoid Schad by pointing out that I have characterized this case as a cold-blooded murder by a vicious criminal. Typescript at 10. The problem with this accurate observation is that it causes the majority's opinion to self-destruct for if, as I have no doubt is the fact, the jury agreed with my assessment, then the appropriate verdict was returned. Only if the jury thought that Geschwendt was not shown to be sane is the absence of the specific verdict option of not guilty by reason of insanity significant for in that case the jury would have known that it was not dealing with a vicious criminal. Therefore, I reiterate that assuming the jury believed that sanity was not proven but it nevertheless declined to follow the court's instructions and find Geschwendt not guilty as it did not want to release him, the third degree conviction would have been the perfect option since Geschwendt's insanity would supply the basis to find that he did not have the intent for a first degree murder conviction.

The majority also states that the third degree charges were not supported by the evidence. Typescript at 10. This is absolutely wrong because the evidence of insanity which Geschwendt himself produced would have supported a finding by the jury that Geschwendt did not have the intent for a first degree conviction. It must be remembered that the judge told the jury that if Geschwendt "did not possess the capacity to form this specific intent to take life, due to a mental defect or disease" but was sane and was otherwise guilty of first degree murder, it should convict him of third degree murder. Undoubtedly evidence of insanity, going to whether Geschwendt was able "to understand the nature and quality of his act or to distinguish between right or wrong with respect to that act," would go directly to Geschwendt's mental condition and ability to form a specific intent to take life. Accordingly, the trial judge charged the jury to consider on this point the very evidence that was presented on the sanity issue. Therefore, it is not surprising that neither the Commonwealth nor Geschwendt objected to the jury being charged on third degree murder. Thus, third degree murder was a completely legitimate issue in this case and only the majority, not the trial attorneys nor the trial court, thinks otherwise.

How then does the majority conclude that third degree murder was not supported by the evidence? It does so by saying that "leaving aside for a moment the question of Geschwendt's sanity, these acts were wilful, deliberate, intentional and premeditated, and the jury could not have found otherwise." Typescript at 10. The problem with this is that the majority has actually put to the side the very question posed. In that same motion, the majority ignores the evidence which Geschwendt himself produced to support his claim of insanity. Thus, the majority has found that there is no support in the evidence for third degree murder by "leaving aside" the evidence that does support that charge.

I cannot join in such a process. It is, of course, always possible to conclude that there is no evidence to support a finding if the evidence that does support it is left aside. But it is wrong to do that, particularly in a habeas corpus case which is, after all, an intrusion into state judicial proceedings. The undeniable fact is that the majority makes no effort to analyze the insanity evidence produced to demonstrate that it would not support a third degree murder conviction. Of course, it could not successfully do so since the evidence would have justified that result, as the trial court and the parties at the trial recognized. After all, as the district court pointed out in its opinion, Dr. Watson, a psychiatrist, testified that Geschwendt "did not know the nature and quality of his acts in the normal sense." Even Geschwendt admits in his brief that he produced testimony "of two psychiatrists who examined [him] that at the time of the crime he did not know the difference between right and wrong and did not understand the nature and consequences of his acts."

How then can it possibly be contended that the evidence could not support a finding that he lacked the specific intent to kill? While obviously the jury did not conclude that Geschwendt did not understand the nature and quality of his acts, why could it have not nevertheless used the evidence on the point to negate a finding that he had the specific intent to kill? Indeed, at least insofar as I am aware, until this day no court or attorney, including Geschwendt's attorney on this appeal, has ever contended that third degree murder was not properly an issue in this case. The fact is that if the trial court had refused to charge on third degree murder, it would have acted inconsistently with the principles of the later decided Beck.*fn5

There is, of course, another factor to validate the verdict. Not only did the jury find Geschwendt guilty of the most severe offense available, it also sentenced Geschwendt to die six times. Accordingly, in addition to rejecting the findings of guilty for the intermediate lesser included offenses, the jury rejected a life imprisonment penalty and imposed six sentences of death. Certainly if the jury thought that Geschwendt was insane and would have returned a verdict of not guilty by reason of insanity, if such a charge had been available, it would have sentenced Geschwendt to imprisonment for life.*fn6 Indeed, this case is a far stronger one for a harmless error analysis than Schad because in Schad the court and not the jury fixed the death penalty. See State v. Schad, 163 Ariz. 411, 788 P.2d 1162 (1989). Thus, in contrast to Shad the penalty imposed further validates the verdict in this case. The majority deals with the significance of the fact that the jury imposed six death penalties by ignoring it.

In the circumstances, I would hold that beyond any doubt at all, not just a reasonable doubt, that if the jury concluded that the Commonwealth did not establish that Geschwendt was sane but nevertheless convicted him because it did not want to set him free it would not have convicted him of six first degree murders and then sentenced him to die six times. While the Supreme Court thought it irrational to think that the Schad jury would have convicted Schad of first degree murder if it considered him guilty only of robbery, that "irrationality" pales into insignificance when compared to what the majority thinks the jury might have done here based on the majority's view that a not guilty by reason of insanity option could have made a difference in this case.

The district court in its opinion, rendered before Schad, was exactly right when it said:

It is a telling point that the jury returned a verdict of death on the same day it found him guilty. Is it conceivable that a jury that was prepared to accept Geschwendt's insanity defense but felt themselves 'barred' and 'powerless' to do so based on the trial judge's charge, would nevertheless proceed to render six verdicts of death on the very same day they deliberated his guilt?

App. at 82.

Of course, it is not so conceivable. While Geschwendt in his brief points out quite correctly that the district court gave no "authority for the proposition that a jury would never vote to execute a man they believed to have been insane at the time of the murders he committed" that statement misses the point. The issue is not whether the jury would send an insane defendant to his death for I admit that it is possible that a jury might disregard its instructions and do exactly that. The actual issue is whether a jury which would have returned a verdict of not guilty by reason of insanity if it could have done so would, if denied that option, vote to have an insane man executed rather than sentence him to life imprisonment or convict him of a noncapital offense justified by the evidence which the defendant himself produced.

The majority tells us that without "the third option verdict," i.e., not guilty by reason of insanity, "the jurors reasonably could have concluded that a verdict of not guilty would have released this man to the streets, to kill again. This is not only a permissible inference, but a reasonable one, and perhaps, under the circumstances of this case, a compelling one." Typescript at 22. I see no reason for this conclusion, for even the majority admits that there was no doubt that Geschwendt committed the homicides. Thus, a general verdict of not guilty could not reasonably be taken to be anything other than a finding of insanity. This was not a case in which the defendant said he did not commit the acts with which he was charged but, even if he did, he was insane. Accordingly, there is no reason to believe that in the circumstances of this case, if the jury speculated on the consequences of its verdict, it would not have anticipated that commitment proceedings would follow a not guilty verdict. The majority's conclusion on this point implicitly assumes that the jury would think that only a convicted criminal could be committed to a mental institution. I cannot imagine why it believes that, for I would have thought that it was a matter of general understanding that persons other than convicted criminals may be involuntarily committed to mental institutions.

Nevertheless I will assume that the majority is correct and that the jury believed that the uninviting consequence of a not guilty verdict would have been that Geschwendt could have been freed to kill again. But even assuming that this was so how can anyone believe that the jury would have sentenced him to die when it could have avoided this consequence by convicting him of third degree murder or at the very least by sentencing him to life imprisonment as it was fully authorized to do at the penalty phase?

In addition to being contrary to Schad, the majority opinion cannot be reconciled with our method of analysis in Vujosevic v. Rafferty, 844 F.2d 1023 (3d Cir. 1988). Vujosevic was a habeas case in which the state defendant was convicted of aggravated manslaughter as a lesser included offense on a murder indictment. The trial judge also charged manslaughter as a lesser included offense but erroneously refused to charge on aggravated assault, a lesser included offense yet. The Appellate Division of the Superior Court of New Jersey affirmed on the theory that if the jury believed that only an assault was involved it would have convicted the defendant of manslaughter, the least serious offense available to it under the court's charge. State v. Vujosevic, 198 N.J. Super. 435, 444-46, 487 A.2d 751, 756-57 (App. Div.), certif. denied, 101 N.J. 247, 501 A.2d 920 (1985). We, however, disagreed as we thought that the defendant's own testimony would have made a manslaughter conviction "nonsensical" and because we did not think that manslaughter necessarily offered a rational compromise between aggravated manslaughter and acquittal.

Vujosevic was clearly overruled by Schad because in Schad the Supreme Court made no determination that a second degree verdict conviction would have been logical, though it recognized that the evidence could have supported a conviction for that lesser included offense. Thus, in Schad it was the availability of the second degree verdict rather than the realistic possibility that it would be returned that validated the first degree murder conviction. Of course, in Vujosevic the trial court determined that a manslaughter conviction could have been justified under the evidence or it would not have charged that offense and neither we nor the Appellate Division suggested that manslaughter should not have been charged.

But even if Vujosevic has not been overruled so that in some cases it could continue to be the basis for habeas relief if a lesser included offense is not charged, it dictates that the writ be denied here. Whatever may have been the situation in Vujosevic, it surely would not have been "nonsensical" for Geschwendt's jury if it found that the Commonwealth had not proven Geschwendt to be sane to reduce the verdict to third degree murder because of a mental defect rendering him incapable of forming the requisite intent for first degree murder if it could not return a verdict of not guilty by reason of insanity. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 295 (3d Cir.) (discussing effect of diminished capacity to reduce first degree murder to third degree), cert. denied, 60 U.S.L.W. 3266 (U.S. Oct. 7, 1991). In addition, it cannot be said that if the jury concluded that Geschwendt was insane it could not have accommodated that finding to the third degree murder charge. The fact is that Geschwendt does not even argue now that the third degree murder charge was inappropriate on the facts and I emphasize that at the trial his attorney did not object to the third degree charge being given. Indeed, if the jury found Geschwendt insane and wanted to return a verdict reflecting that conclusion a third degree verdict was far preferable to a first degree verdict. Furthermore, even if the jury did not return a third degree verdict, it surely would not have been "nonsensical" for it to have returned a verdict of life imprisomnent.

Why then did this jury find Geschwendt guilty of six murders in the first degree and sentence him to die six times? The answer is obvious. It found that the Commonwealth had established beyond a reasonable doubt that Geschwendt was sane. Indeed, notwithstanding psychiatric evidence to support the insanity defense, who could have realistically expected the jury to have found otherwise in the face of contrary expert testimony and the undisputed facts which the majority accurately describes.*fn7 This was a cold-blooded calculated mass homicide carefully planned by a vicious criminal who subsequently attempted to cover-up his heinous acts. A worse case cannot be imagined. Of course the jury rejected the insanity defense.

Before I close this aspect of my dissent I have a few further observations to make. As I have indicated, the essence of the majority's opinion is that Geschwendt was deprived of a fair chance at a not guilty verdict because the jury was not given the opportunity to state that the basis for such a verdict was insanity. The majority concedes, however, that Geschwendt could support his insanity plea by argument and testimony and thus would have received a general verdict of not guilty if the Commonwealth did not prove that he was sane and the jury followed the court's instructions. Typescript at 26. While the majority does not rely on Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, the principle underlying its argument is the same as that adopted by the Court in Beck for it accepts Geschwendt's argument that the jury may have found him insane but nevertheless convicted him of first degree murder to keep him off the streets.*fn8

In this regard I point out that it is not surprising that the Supreme Court limited Beck in Schad for Beck represents an exception to a broader principle of law as it presupposes that the jury may not faithfully carry out its instructions. See Francis v. Franklin, 471 U.S. 307, 324 n.9, 105 S. Ct. 1965, 1976 n.9 (1985). Indeed, if the jury did follow its instructions, it would be advantageous to a defendant that he not be charged on a lesser included offense, as a finding that he only committed the lesser included but uncharged offense would result in his acquittal. The majority's opinion uses the reasoning of Beck, for if a jury concludes that the prosecution has not established that a defendant is sane and then carries out its instructions, it does not matter if it is given the opportunity for a special verdict of not guilty by reason of insanity. Thus, the majority is sub silencio following Beck for it holds that it does matter. Since the majority is in fact applying Beck, it follows that it should also recognize the Schad limitation on Beck.

There is a third reason, perhaps even more fundamental than the first two, why the writ should not be granted in this case. Once again I will assume that the plurality of the Supreme Court of Pennsylvania was wrong and that the charge as a whole did not give the jury the option to return a verdict of not guilty by reason of insanity. But the error, if there was an error at all, was only of state law. As we explained in Zettlemoyer v. Fulcomer, 923 F.2d at 309, it is well established that a state court's misapplication of its own law does not generally raise a constitutional claim and the federal courts have no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.

The majority builds a federal constitutional case in this situation as follows. It quotes Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227 (1980), that a defendant has a right against arbitrary deprivation of his liberty. It points out that as a matter of state law Pennsylvania has long recognized insanity as a defense and that procedural due process requires that the state afford a defendant an adequate opportunity to raise the insanity defense it affords. Furthermore, the majority urges that as a matter of Pennsylvania law the trial court erred in failing to charge the jury that it could return a verdict of not guilty by reason of insanity. Ultimately, then, it asks whether "this violation of state law constituted a deprivation of due process under the Fourteenth Amendment?" Typescript at 24. It answers that there was such a violation because the jury could only return a verdict of not guilty simpliciter if the Commonwealth did not prove that Geschwendt was sane.

I will accept the due process question as the majority poses it and, for purposes of this opinion, I will accept the various underlying premises for the question, though I do not actually believe all of them. In this regard I note that notwithstanding the majority's analysis, which I emphasize that at this point I accept, it is questionable whether Pennsylvania required as a matter of state law at the time of Geschwendt's trial that the jury be given the option to return a verdict of not guilty by reason of insanity.*fn9 The experienced Pennsylvania district court in this case explained:

The trial judge's failure to charge on the alternative verdict of not guilty by reason of insanity did not violate Geschwendt's rights to due process. At the time of Geschwendt's trial, trial judges were not obligated to specifically instruct a practice until after [Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977)], and the Supreme Court specifically rejected Geschwendt's argument to apply Mulgrew retroactively.

App. at 77.

I do, however, agree that Pennsylvania has long recognized insanity as a defense and that procedural due process required that Geschwendt be given an adequate opportunity to advance the defense. Of course, I accept the Hicks statement that a defendant has a right not to be arbitrarily deprived of his liberty.

But where does all of this take us? As the Supreme Court made clear in Donnelly v. De Christoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974), in habeas cases where, as here, only generalized arguments of denial of due process as opposed to specific guarantees under the Bill of Rights are advanced, relief can be granted only if the trial is "so infected . . . with unfairness as to make the resulting conviction a denial of due process." At this trial Geschwendt was certainly not denied the opportunity to call witnesses on the issue of his sanity and to present argument on the point. Furthermore, the Commonwealth was assigned the burden of establishing sanity beyond a reasonable doubt. The only possible due process violation was that the jury was not given the opportunity to return a not guilty verdict with the announcement that it was returned by reason of insanity.

But where is it written that as a matter of due process of law a state must provide for such a special verdict, provided that it allows a general verdict to be returned on the basis of insanity?*fn10 If the majority is correct then as a matter of federal constitutional law a state must provide for a special verdict of not guilty by reason of insanity, at least if it recognizes the insanity defense, for otherwise a trial judge not giving the charge violates state law but not federal constitutional law. I cannot imagine the source of such a requirement. Why, for example, could not a state authorize a civil commitment process to determine the defendant's current mental state and thus the necessity for his confinement to follow a criminal trial if a general verdict of not guilty is returned in a case in which insanity is in issue? Unless it could not do that this case does not raise a substantial federal claim.

Hicks v. Oklahoma, 447 U.S. 343, 100 S. Ct. 2227, cited by the majority, is certainly not contrary to my result. There the jury was instructed that if they found a defendant guilty of distributing heroin they must sentence him to a 40-year term as an habitual offender. While his appeal was pending, the mandatory term was declared unconstitutional in another case so that the defendant could have been sentenced by the jury to a term of not less than ten years. The defendant then asked the state appellate court to set aside his sentence on the basis of the intervening decision but it refused to do so as it reasoned that he was not prejudiced by the impact of the invalid statute as the jury could have sentenced him to 40 years' imprisonment even without the mandatory term. The defendant then obtained certiorari in the Supreme Court.

The Supreme Court reversed notwithstanding the state's argument that nothing more than a state procedural matter was involved. It reasoned as follows:

Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner's right to liberty is a denial of due process of law.

Id. at 346, 100 S. Ct. at 2229 (omitting citations; emphasis in original).

Clearly Hicks is distinguishable from this case, for in Hicks the jury was given an erroneous instruction on substantive state law which forced it to return a verdict for a sentence that was four times longer than required, a fundamental error indeed. Here the charge on the law to the jury, unlike the charge in Hicks, was absolutely substantively correct on state law because the jury was told that it could not find Geschwendt guilty unless the Commonwealth proved beyond a reasonable doubt that he was sane. It therefore follows that the due process violation in this case is dependent upon a conclusion which I refuse to reach that the federal constitution requires that a state provide a special verdict based on insanity. I simply will not equate for due process purposes an erroneous instruction to the jury that it must return a verdict for a sentence four times that required by law, to a correct instruction that it should find Geschwendt not guilty if it concludes that the Commonwealth has not proven him to be sane beyond a reasonable doubt. I repeat for purposes of emphasis that obviously there is a critical distinction between instructing the jury with the wrong substantive law, as happened in Hicks, and providing it with the correct law as the trial court did here. The bottom line is inescapable. Geschwendt is receiving federal habeas corpus relief for an error, if there was an error at all, of state law. This is not acceptable.

Geschwendt raises an additional point which the majority did not have to address directly as it is granting relief on another basis but I do for if I agreed with Geschwendt on the point I would concur in the result rather than dissent. Referring to his direct appeal, he urges that his state appellate counsel failed "to preserve on appeal the issue of the trial court's failure to inform the jury of the trial alternative verdict," i.e., not guilty by reason of insanity. Thus, he perceives that his attorney was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

There are two problems with this argument. Geschwendt admits in his reply brief that he "has not previously raised ineffectiveness of counsel as a constitutional violation in the Pennsylvania state courts." He seeks to avoid this omission by pointing out that the appellee has not raised state court exhaustion. While that is true it obviously is of little help as we raise exhaustion on our own. He then urges, citing Zettlemoyer v. Fulcomer, 923 F.2d at 309, that inasmuch as "exhaustion is a rule of comity and not a jurisdictional requirement," we may decide the merits of an unexhausted claim.

It seems to me that I should meet this issue oil the merits for his counsel did preserve the issue on the direct appeal and I see no point in prolonging these proceedings. While the majority does not deal with counsel's alleged ineffectiveness, it nevertheless addresses the question of whether the issue of the right to the submission of an alternative verdict of not guilty by reason of insanity was preserved on the state appeal, since Geschwendt's right to the submission of such a verdict is the issue the majority addresses. The majority demonstrates that the issue was raised in the Supreme Court of Pennsylvania which in turn addressed the point. Obviously, in view of my first conclusion in this dissent I agree with the majority on this issue. In the circumstances, state appellate counsel could not have been ineffective for failure to raise the issue, as he raised it.*fn11

I close by pointing out that the majority could reach its result to discharge Geschwendt from custody only by rejecting the understanding of the meaning of the verdict by the Superior Court and a plurality of the Supreme Court of Pennsylvania, by refusing to apply the harmless error analysis dictated by Schad, by treating a state law issue as a federal constitutional matter, and by assuming that the jury would think that a criminal conviction is a prerequisite to an involuntary civil commitment proceeding. I will not do these things.

For the foregoing reasons I would affirm the order of the district court denying the writ of habeas corpus.


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