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Geschwendt v. Ryan

filed: June 18, 1992; As Corrected June 24, 1992.

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). May 6, 1992, Reargued

Argued September 5, 1991 Before: Stapleton, Greenberg and Aldisert, Circuit Judges. Reargued May 6, 1992 Before: Sloviter, Chief Judge, and Becker, Stapleton, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Roth and Aldisert, Circuit Judges

Author: Greenberg

Opinion OF THE COURT

GREENBERG, Circuit Judge.

George Geschwendt, who is serving life imprisonment for six first degree state murder convictions, appeals from a judgment of the district court entered on March 21, 1991, denying his petition for habeas corpus. We will affirm.

I. BACKGROUND

We will only summarize the facts as developed at the trial in the Court of Common Pleas in Bucks County, Pennsylvania, for they are not in dispute and are set forth in the opinion of the Supreme Court of Pennsylvania on Geschwendt's direct appeal from his conviction. See Commonwealth v. Geschwendt, 500 Pa. 120, 123-24, 454 A.2d 991, 992-93 (1982). Prior to March 12, 1976, Geschwendt purchased a .22, caliber gun and falsely reported to the local police that it was stolen on the day of the purchase. Geschwendt at that time resided with his mother and brother in Bensalem Township directly across the street from a residence, occupied by the Abt family. On March 12, 1976, after his brother and mother had gone to work, Geschwendt, broke into the Abt's empty home. Geschwendt waited for the Abts to return and, as they did so, using the gun he had reported stolen, he shot and killed five of them, as well as a boyfriend of one of the victims. Geschwendt had intended to kill the entire family, but he left before he completed his mission, because he was alarmed by the constant ringing of the telephone. While Geschwendt attempted to conceal his role in the killings by disposing of his clothes and the gun, when questioned he gave a complete confession which he has never repudiated.

Geschwendt was indicted for six first degree murders. The case was tried to a jury in two stages: a culpability stage to determine the offenses, if any, Geschwendt had committed, followed by a penalty phase. As Geschwendt indicates in his brief, "the defense was insanity," for he did not deny committing the homicides. Thus, with the use of expert testimony, he attempted to establish that he was insane. However, the Commonwealth countered with expert testimony that Geschwendt was sane. Following the completion of the evidence on the first phase, the court defined the elements of first degree murder, including the specific intent to take life required, and instructed the jury that Geschwendt could be convicted of that offense if the Commonwealth proved beyond a reasonable doubt that the elements had been satisfied. The court also instructed the jury that it could convict Geschwendt of third degree murder if he suffered from a mental defect rendering him incapable of forming the requisite intent for first degree murder. Furthermore it charged the jury it could convict Geschwendt of voluntary manslaughter.*fn1 In accordance with Pennsylvania procedure, the Judge told the jury that if it found Geschwendt guilty of first degree murder, it would deliberate again to decide whether to sentence him to life imprisonment or death. Of course, the court also instructed the jury that Geschwendt could be found not guilty.

The court gave detailed instructions on the insanity defense, telling 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 to prove Geschwendt sane beyond a reasonable doubt, the jury should find him not guilty. At trial Geschwendt did not assert that the court erred in its formulation of either the substantive law or the burden of proof on the insanity defense and he still makes no such claim. Nevertheless, he objected to the charge as the jury could find him not guilty only by returning a general verdict, whereas he urged that he was entitled to a charge that the jury could return a specific verdict of not guilty by reason of insanity. The trial court refused to give the specific verdict charge, and Geschwendt was convicted of six counts of first degree murder.

The case next turned to the penalty phase. At that stage, the court instructed the jury that, if it found that the first degree murders were accompanied by at least one aggravating circumstance, and no mitigating circumstance, it was obliged to sentence Geschwendt to death, but otherwise the sentence would be life imprisonment. The court explained that the Commonwealth could demonstrate that there was an aggravating circumstance by proving beyond a reasonable doubt that Geschwendt broke into the house with the intent to commit murder. On the other hand, the court stated that if Geschwendt formed that intent after he entered, then the Commonwealth would not have proven that there was an aggravating circumstance.

The court also reminded the jury that Geschwendt, who was 24 years old at the time of the murders, urged that his mental age and lack of maturity constituted a mitigating circumstance, and it noted that Geschwendt had presented evidence on this point from a Dr. Strochak. It then told the jury that, if Geschwendt established by a preponderance of the evidence that he "lacked maturity, was young mentally insofar as his age was concerned, you have then determined that a mitigating circumstance exists, and if you so determine, then the punishment must be life imprisonment."

The court then reiterated that, if the jury found one aggravating circumstance but no mitigating circumstance, the sentence would be death, but if it did not find an aggravating circumstance, or if it found a mitigating circumstance, then the sentence was to be life imprisonment. During the deliberations, the court, in response to a question from the jury, instructed it that, if there was a mitigating circumstance, the sentence was to be life imprisonment even if there was an aggravating circumstance. The jury returned six death penalty verdicts.

The punishment, however, was not carried out, for after Geschwendt's trial 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, 57 L. Ed. 2d 1160 (1978). Accordingly, Geschwendt was resentenced 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 on direct appeal. Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982).*fn2 A three-Justice plurality in the Supreme Court believed that Geschwendt's principal issue on the appeal was his challenge to the trial court's refusal to charge the jury that a verdict of not guilty by reason of insanity might lead to his psychiatric treatment and commitment. It rejected his argument, reasoning that while Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977), had changed the law after Geschwendt's trial so that such a charge would thereafter be given, the change was not retroactive and thus did not apply in his case.*fn3 In Mulgrew the court held that "when insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the possible psychiatric treatment and commitment of the defendant after the return of a verdict of not guilty by reason of insanity." 475 Pa. at 277-78, 380 A.2d at 352. Geschwendt does not now question the holding on his direct appeal that Mulgrew was inapplicable in his case.*fn4

The Supreme Court of Pennsylvania, in the plurality opinion, indicated that the issue which is raised on this appeal, that the trial court erred in not instructing the jury that it could return a verdict of not guilty by reason of insanity, had not been properly preserved. Nevertheless, it dealt with and rejected this contention on the merits, as it held that it 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. Three Justices Dissented on the ground that Geschwendt had been entitled to a specific charge that he could be found not guilty by reason of insanity, as they concluded that there had been a requirement in Pennsylvania since 1860 that when sanity is in issue the jury be allowed to return a specific verdict of not guilty by reason of insanity. 500 Pa. at 138, 454 A.2d at 1001. Furthermore they maintained that Mulgrew should be applied in Geschwendt's case. The seventh Justice concurred without opinion in the result reached by the plurality.

Subsequently, Geschwendt filed a petition for habeas corpus in the district court, arguing that his due process rights had been violated by the trial court's refusal to charge the jury that he could be found not guilty by reason of insanity.*fn5 Following the appointment of counsel, Geschwendt moved to amend his petition to include a contention that his counsel was ineffective on his direct appeal, as that counsel had failed to assert that the trial court erred in its "refusal to give the jury an instruction that would have informed it of its right to return a verdict of not guilty by reason of insanity." The matter was referred to a magistrate Judge who filed a report dated February 4, 1991, recommending that the court grant Geschwendt habeas relief because Pennsylvania law at the time of Geschwendt's trial required that the trial court instruct the jury that it could return a verdict of not guilty by reason of insanity. The magistrate Judge reasoned that the court's refusal to provide this instruction violated Geschwendt's right to due process of law under the United States Constitution. While the magistrate Judge mentioned the motion to amend the petition in her report and recommendation, she did not consider the ineffective counsel argument on the merits and did not act on the motion.

The district court rejected the recommendation, as it held that it was not the practice in Pennsylvania to instruct a jury that it had the option to return a specific verdict of not guilty by reason of insanity until after the decision in Mulgrew.*fn6 Inasmuch as Mulgrew had been decided after Geschwendt's trial, the district court determined that he had not been denied due process of law. The court also pointed out that it was "a telling point that the jury returned a verdict of death on the same day it found him guilty." It then asked, rhetorically, "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?" The district court did not address the ineffective counsel argument.*fn7

On this appeal, Geschwendt urges that he was deprived of his liberty without due process of law because the trial court did not charge the jury that it could find him not guilty by reason of insanity. In this regard, he relies on Pa. Stat. Ann. tit. 50, § 4413 (Purdon 1969), and the Dissent in the Supreme Court of Pennsylvania on his direct appeal. He further contends that his attorney on the direct appeal was ineffective for failing to preserve and argue the contention that the trial Judge erred in not informing the jury that it could return a verdict of not guilty by reason of insanity.

II. DISCUSSION

A. The Charge to the Jury

1. The Substance of the Charge

We deal first with the trial court's refusal to charge that the jury could return a verdict of not guilty by reason of insanity.*fn8 It is surprising that at the time of Geschwendt's trial there was still some question as to whether the jury had to be charged that when sanity was in issue it could return such a verdict. But the experienced Pennsylvania federal district court in this case did not think it was required, and thus the trial court's view of the law was not unique. The district court explained that the instruction that a jury could return a verdict of not guilty by reason of insanity "did not become standard practice until after the Mulgrew decision in 1977" so that at "the time of Geschwendt's trial, trial Judges were not obligated to specifically instruct a jury on this option." There is a certain logic in this, for, until Mulgrew, it was not necessary to tell the jury of the consequence of a verdict of not guilty by reason of insanity. Thus, arguably, when Geschwendt was tried it was not important for the jury to be able to return a special verdict of not guilty by reason of insanity, as it could have only speculated on the consequences of that verdict.*fn9

Nevertheless, we will assume without deciding that the charge was required by state law. But this assumption does not help Geschwendt, for, when the charge is examined and is considered in conjunction with the undisputed facts, it is clear that 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. As the Supreme Court of Pennsylvania said, "the facts surrounding the murders were not disputed." 500 Pa. at 123, 454 A.2d at 992. Indeed, the magistrate Judge, though recommending that the petition be granted, observed "no jury could have reasonably found [Geschwendt] not guilty of committing . . . the physical acts." Furthermore, Geschwendt himself concedes in his brief that the "defense was insanity."

It is therefore apparent that the plurality opinion of the Supreme Court of Pennsylvania simply recognized that 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." Commonwealth v. Geschwendt, 271 Pa. Super. 102, 105, 412 A.2d 595, 597 (1979). Overall, we have no reason to reject the Conclusion of the Supreme Court of Pennsylvania that, when the instructions are viewed as a whole, the trial court did instruct the jury that it could find Geschwendt not guilty by reason of insanity. Thus, the court offered the jury the opportunity to return a de facto verdict of not guilty by reason of insanity.

We acknowledge that the Supreme Court of Pennsylvania under state law could have ordered a new trial because the jury was not given an explicit opportunity to return a de jure verdict of not guilty by reason of insanity. But our power in this habeas corpus proceeding is not so broad, for we may order the discharge of a state prisoner on the basis of defective jury instructions only if his or her fundamental due process fights have been violated. See Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973). Here the only possible basis to contend that the error of state law rose to the level of a due process violation would be that the jury might have guessed that a general not guilty verdict, but not a special verdict of not guilty by reason of insanity, would have caused Geschwendt to be released and that the jury would have been reluctant to have that happen. But there is no basis for such a Conclusion, as we are confident that in this case the jury would have recognized that the reason for a not guilty verdict could not have been misunderstood.

2. Schad v. Arizona

We next turn to Schad v. Arizona, 115 L. Ed. 2d 555, 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 we are also incorrect in our Conclusion that Geschwendt's due process rights were not violated by the form of the verdict. Thus, in considering Schad, we will treat the charge as though it did not, even 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 apparently arose from a robbery, Schad viewed the evidence as supporting a finding that he was only the robber and not the murderer, and he therefore requested a lesser included offense charge on robbery. Id. at 2504.*fn10 While the trial court declined to give that charge, it did give a second degree murder charge, as a lesser included offense. Accordingly, the jury there 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 rejected Schad's contention that the trial court's refusal to instruct on the possibility of a robbery conviction was inconsistent with Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980).*fn11 The Court in Schad indicated that in Beck 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," but that concern was 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 other than guilty of first degree murder or not guilty, namely second degree murder. Hence the Court held that 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.*fn12 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, the Court explained:

To accept the contention advanced by [Schad] and the Dissent, we would have to assume that a jury unconvinced that [Schad] 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).

Schad, of course, did not announce a new principle of law, for it was and is consistent with the great weight of state authority. See State v. Mendez, 252 N.J. Super. 155, 165-66, 599 A.2d 565, 570-71 (App. Div. 1991) (collecting cases). Schad teaches us that, in cases involving offenses on a ladder, if the trial court wrongfully refuses to charge the offense at the bottom rung, that error is harmless provided the jury returns a guilty verdict for an offense higher up rather than for an intermediate offense which was also charged.

There is simply no escape here from the principle underlying Schad. 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 had not returned a verdict for the intermediate offense of second degree murder.*fn13 Here, even assuming that the jury had not been given the option of returning a verdict of not guilty by reason of insanity, its guilty verdict is similarly reliable because the jury did not return a guilty verdict for either of the lesser included offenses, third degree murder or voluntary manslaughter.*fn14 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 foreclose Geschwendt's due process claim. While we recognize that Schad was concerned with a failure to charge a lesser included offense and we deal here with a refusal to charge on an alternative form of a jury verdict of not guilty, that does not matter. As an inferior court, we are bound to follow both the "reasoning and [the] result" in Schad, and the reasoning controls here. Planned Parenthood v. Casey, 947 F.2d 682, 692 (3d Cir. 1991), cert. granted, 112 S. Ct. 931 (1992).

We are, of course, aware 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. Beck was 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 can excuse criminal conduct for an inability to form the specific mental intent. Furthermore, the court told the jury that the lack of capacity it was to consider was related to mental defect or disease, the very conditions involved in the insanity defense.

Our result cannot be avoided by an argument that, notwithstanding the court's charge to the jury which, as a legal matter, made a third degree conviction possible, such a conviction could not be justified by the evidence. The evidence of insanity which Geschwendt himself produced could have supported a finding by the jury that Geschwendt did not have the intent for a first degree conviction. As the district court pointed out in its opinion, Dr. Watson, a psychiatrist, testified that Geschwendt "did not know the nature or quality of his acts in the normal sense." Indeed, 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." It would defy logic to hold that the jury could not have used this evidence to reach a Conclusion that Geschwendt had diminished capacity and was therefore guilty of third degree murder.

We reiterate that the Judge instructed 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. We have no doubt that 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," could have been used by the jury to conclude that Geschwendt lacked the ability to form a specific intent to take life. Therefore, it was entirely appropriate that the trial court charged the jury to consider on the diminished capacity issue the very evidence that was presented on the sanity issue. Thus, it is not surprising that neither the Commonwealth nor Geschwendt objected to the jury being charged on third degree murder, and that charge was properly given in this case.*fn15

We recognize that it could be argued that the jury, by returning a first degree murder conviction and thus rejecting the insanity defense, necessarily rejected a diminished capacity defense so that a third degree verdict was no longer a viable option. But this contention would not undercut our result, because Geschwendt's position that he was prejudiced by the trial court's failure to charge that the jury could find him not guilty by reason of insanity assumes that it is possible that it would have returned such a verdict if it had been able to do so. If, as we have no doubt is the case, the jury found Geschwendt was guilty because he was sane, then, of course, he was not prejudiced by the absence of the alternative verdict. On the other hand, if the jury did not find that he was sane but nevertheless convicted him, then it did not reject the evidence that Geschwendt was insane and it then could have used that evidence to support a diminished capacity verdict.

It is evident, therefore, that 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. We think that it would be irrational to believe, if the jury would have found Geschwendt not guilty by reason of insanity if given that explicit choice, that same jury would reject a third degree murder verdict under the above charge and instead return a first degree murder verdict.

There is yet another factor that validates the verdict for the jury, in addition to finding Geschwendt guilty of the most severe offense available, sentenced him to die six times, thus rejecting a sentence of life imprisonment. 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 verdict had been available, but would not find him not guilty because it feared he would be released, it would have sentenced Geschwendt to imprisonment for life rather than condemn him to die. It cannot reasonably be argued that the jury would have thought that a sentence of life imprisonment could somehow be tantamount to a direction for Geschwendt's release, so that it would have been reluctant to return a verdict for that punishment. As we have already explained, the jury could not sentence Geschwendt to death unless it found an aggravating circumstance and did not find a mitigating circumstance. While it is not difficult, based on the record, to understand how the jury was able to find an aggravating circumstance, though it was not compelled to do so, it is also clear that it could easily have found a mitigating circumstance.*fn16 Accordingly, 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 the situation in Schad, the penalty imposed further validates the verdict rendered.*fn17

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 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 lime 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 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, when denied that option, vote to have an insane man executed rather than sentence him to life imprisonment or convict him of a noncapital offense. This question cannot be reasonably answered affirmatively.*fn18

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. There is no doubt that Geschwendt committed a carefully planned, calculated mass homicide which he attempted to conceal both before and after the fact. The facts demonstrate that he ...


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