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March 15, 2002


The opinion of the court was delivered by: Buckwalter, District Judge.



The police arrived, pronounced the girl dead at the scene and removed the body to the morgue. The body was then examined by one Dr. Edward Campbell, Medical Examiner and Forensic pathologist. The deceased's blouse had been torn and the zipper of her dungarees (men's style) was partially ripped off. The dungarees were also torn at the inner seams of the thighs on both sides of the crotch. The crotch seam of the deceased's panties was likewise torn. The cause of death was attributed to strangulation by ligature. There were also bruises to the skin of the neck, a broken bone on the right side of the neck and bruises of the voice box. Tears were found in the child's rectum and testing ascertained the presence of acid phosphates in the vagina.
The clothing of the deceased was delivered to the Police Department Laboratory where brushings and microscopic examination disclosed particles of leather, leather dust, glue, polish, dog hairs, fiber and chips of paint adhering to the clothing. These findings led to the issuance of three search warrants for the person of and premises occupied by the appellant, which premises were located at 1109 North 40 th Street and consisted of a shoe repair shop in the ground floor and living quarters in the rear of the shop. The execution of these warrants resulted in obtaining, inter alia, paint scrapings from various parts of the premises, specimens of leather, glue, fibers, threads and hairs, clothing of appellant, bed sheets, bedspreads and drapes. These specimens were delivered to the Police Department Laboratory, analyzed by Dr. Edward J. Burke, then the Laboratory Director, and compared with items removed from the deceased's clothing. The Commonwealth's entire case rested upon the testimony of Dr. Burke with reference to the similarity of the specimens.

Petitioner was convicted by a jury of first-degree murder of Edith Connor. He was sentenced to life imprisonment by Judge Joseph L. McGlynn, Jr. on April 23, 1971. The sentence was affirmed by the Supreme Court of Pennsylvania, supra.

His subsequent pro se petition for post conviction relief on a single technical ground that the indictment did not use the words "kill and murder" was denied. Commonwealth v. Thomas, 268 Pa.Super. 566, 408 A.2d 1148 (1979).

In 1973, a federal petition for habeas corpus was dismissed without prejudice for failure to exhaust state remedies (E.D.Pa. C.A. No. 73-2711).

The Board of Pardons added the following:

Mr. Thomas has served over twenty-nine years of his sentence. He has had only five misconducts since 1971. He has continued to maintain his innocence throughout his incarceration. He earned a Bachelor of Arts Degree from Villanova in 1992. He completed sex therapy and continues involvement with Alcoholics Anonymous. Since 1987, he has worked in the Weave Shop and has displayed excellent work habits. The Staff, Superintendent and Commissioner all support commutation due to the applicant's maturity and stability.
The members of the Board of Pardons were impressed by the strong community support for this application. Over two dozen individuals attended the clemency hearing on behalf of Mr. Thomas. We are confident that he will have the necessary support to guide him from the structured environment of prison to productive living in society. We suggest a two year post-dated minimum sentence date of July 21, 1996. This will enable him the opportunity to take full advantage of pre-release programs offered by the Department of Corrections. At the expiration of his minimum sentence, he will have served nearly 32 years incarcerated.

On January 14, 1995, Governor Robert Casey granted commutation as follows:

Therefore, Know Ye, That in consideration of the promises and by virtue of the authority vested in me by the Constitution, I have commuted the sentence of life imprisonment of the said Louis C. Mickens-Thomas from life imprisonment to the minimum term of 31 years, 9 months, 6 days to life expiring on July 21, 1996, so that if he be released on parole in accordance with law he shall remain on parole the balance of his natural life unless returned to the correctional institution for violation of parole and that the sentence of imprisonment is hereby commuted accordingly so that he may be eligible for pre-release consideration at the discretion of the Dept. of Corrections. Subsequent to the date of my signature below a conviction of a new summary, misdemeanor or felony offense may upon a hearing by the Board of Pardons render my granting of this clemency null and void.

As set forth above, petitioner did not become eligible for parole until July 21, 1996. In July of 1995, after his commutation but before the expiration of his prison term, an act duly passed by the legislators and applicable to the Pennsylvania Board of Probation and Parole (hereafter the Board) provided in part as follows:

In no case shall the board act upon an application of an inmate whose term of imprisonment was commuted from life to life on parole or upon an inmate who was serving a term of imprisonment for a crime of violence or is an inmate serving a sentence under 42 Pa.C.S. § 9712 (relating to sentences for offenses committed with firearms) unless the inmate has served at least one year in a pre-release center.

61 P.S. § 331.34a.

The Department of Corrections did not approve petitioner for pre-release (Letter of June 6, 1995 — P-21). On July 22, 1996, petitioner filed an application for release but the Parole Board notified him that it could not act upon his application since he had not completed one year in pre-release, citing 61 P.S. § 331.34a (See Respondent Exhibit 9 at 217, Letter to Leonard Sosnov, Esquire dated September 25, 1996).

On November 26, 1996, petitioner filed a petition for review in the nature of an action in mandamus invoking the original jurisdiction of the Commonwealth Court of Pennsylvania. See Mickens-Thomas v. Cor., 699 A.2d 792 (1997). In that case, the Pennsylvania Board of Probation and Parole conceded that 61 P.S. § 331.34a could not be applied retroactively to petitioner. While petitioner was seeking an order compelling the Board to parole him, the Commonwealth Court denied that relief. Instead, it directed the Board by order dated 8/12/97 to "consider and rule on Petitioner's application for parole within ten days of the entry of this order and, in the event of denial of the application, transmit a written statement of the reasons for the denial to the Pennsylvania Board of Pardons for its consideration of whether to accept the denial or immediately release petitioner on parole." Petitioner's November 12, 1997 notice of appeal from this judgment was quashed by the Pennsylvania Supreme Court on 1/15/98.

Pursuant to the directive of the Commonwealth Court, the Board considered petitioner's application for parole on August 21, 1997 and denied it. The Board asked for an evaluation by mental health staff experienced in dealing with sex offenders and scheduled another review for March of 1998. Also pursuant to the Commonwealth Court's order, the Board transmitted a written statement of its reason as follows: "Assaultive instant offense. Very high assaultive behavior potential. Victim injury. Unfavorable recommendation from the District Attorney. Conviction of prior assault offense." With regard to the latter, stipulation number 2, see infra, reads: "In 1945, Mr. Thomas was charged with rape when he was 17 years old. The rape charge was dismissed and a wayward minor charge was substituted. A wayward minor charge is not an adult conviction but a juvenile adjudication, for which Mr. Thomas was placed on probation."

On September 18, 1997, the Pardon Board by a vote of 3-2 concurred in the Board's action denying parole. The Pardon Board at this time was composed of Lieutenant Governor Mark Schweiker, Attorney General Michael Fisher, Warden Richard Gigliotti, Dr. Daniel Menniti and Thomas Harper, Esquire (See Stipulations, No. 4).

On October 29, 1997, petitioner filed an application for leave to file original process with the Pennsylvania Supreme Court, along with a petition for writ of habeas corpus seeking his immediate release from prison. In a per curiam order entered January 28, 1998, the court allowed petitioner to file original process and summarily denied the habeas petition. See Mickens-Thomas v. Vaughn, No. 158 E.D. Misc. Docket 1997.

On March 30, 1998, the Board again denied petitioner's request for parole. The reasons given were: "Assaultive instant offense. Very high assaultive behavior potential. Victim injury. Your need for counseling and treatment." (Respondent's Exhibit 9 at 28). This action was taken even though petitioner was in full compliance with the Board's stipulations from the August 1997 hearing and had "full staff support" of the Department of Corrections.

A Review Summarization Report showed that petitioner had complied with the Board's stipulation under the August 21, 1997 order. Petitioner remained free of misconducts, was recommended for release by the Department of Corrections and was in ...

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