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Commonwealth of Pennsylvania v. George Banks

September 28, 2011

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
GEORGE BANKS, APPELLEE



The opinion of the court was delivered by: Mr. Chief Justice Castille

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

The Commonwealth of Pennsylvania's Exceptions to the Order and Proposed Findings of the Court of Common Pleas of Luzerne County entered on May 12, 2010 and May 17, 2010, at Nos. 1290, 1506- : 1508, 1519A-1519H, 1520, and 1524 of 1982, in the Plenary Jurisdiction of this Court*fn1

ARGUED: November 30, 2010

OPINION

The central issue in this case is whether George Banks is competent to be executed.*fn2 We hold that he currently is not.

Banks used a semi-automatic rifle to murder thirteen people, and seriously wound a fourteenth, in an early morning shooting spree on September 25, 1982 in and near Wilkes- Barre, Luzerne County, Pennsylvania. Five of the victims were children who shared the unlucky fate of having George Banks as their father: Montanzima Banks (age 6), Kissmayu Banks (age 5), Bowendy Banks (age 4), Mauritania Banks (age 1), and Foraroude Banks (age 1). Four additional victims were unfortunate to have been Banks' current or former girlfriends: Susan Yuhas (age 23), who resided with him, Dorothy Lyons (age 29), who sometimes resided with him, Regina Clemens (age 29), who had resided with him until about two weeks before the murders, and Sharon Mazzillo (age 24), a former girlfriend. Three other victims were murdered because of their relationships to Banks' girlfriends or ex-girlfriends: Scott Mazzillo (age 7), the nephew of Sharon Mazzillo; Alice Mazzillo (age 47), the mother of Sharon Mazzillo; and Nancy Lyons (age 11), the daughter of Dorothy Lyons. The thirteenth and final murder victim was an unlucky passerby. Banks murdered teenaged Raymond Hall, who saw Banks as he was leaving his residence (presumably after killing eight people), and also shot and seriously wounded the teenaged James Olson, who was with Hall. All of the victims, save one, were under the age of thirty, and seven of the victims were under the age of twelve. The factual circumstances surrounding the murders are set forth in detail in this Court's opinion, denying Banks' direct appeal from the sentences of death and related crimes. See Commonwealth v. Banks, 521 A.2d 1 (Pa. 1987).

A jury convicted Banks of twelve counts of first-degree murder, one count of third- degree murder, and various other offenses, and sentenced him to twelve separate sentences of death. Nearly thirty years later, Banks remains on death row, having exhausted all of-right avenues of state and federal review of his convictions and sentences. Federal habeas corpus review of his sentences ended in 2004, with the second of two decisions rendered by the U.S. Supreme Court in Beard v. Banks, 542 U.S. 406 (2004). All that remained was execution of the death sentence, and on October 5, 2004, then- Governor Edward G. Rendell duly signed a warrant of execution, scheduling Banks' execution for December 2, 2004. Banks himself took no action in response to the execution warrant, but two weeks before the execution date, his mother Mary Yelland did, filing a "next friend" petition in the trial court, seeking a stay of execution on grounds that Banks was incompetent to be executed, and thus, his execution would violate the Eighth and Fourteenth Amendments under Ford v. Wainwright, 477 U.S. 399 (1986). See also Panetti v. Quarterman, 551 U.S. 930 (2007).

The judge, Michael T. Conahan, denied the petition for lack of jurisdiction, finding it was time-barred under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Assisted by Banks' long-time local counsel, as well as federal counsel from the Philadelphia Federal Defender, Yelland appealed to this Court in her son's name. On December 1, 2004, we issued a per curiam order assuming plenary jurisdiction under 42 Pa.C.S. § 726, stayed the imminent execution, and directed the trial court to "hold a competency hearing expeditiously in accordance with Ford v. Wainwright." We retained jurisdiction, drafting the trial judge to act as master because competency can be contested factually and because there could be credibility questions to resolve. See Commonwealth v. Banks, 943 A.2d 230 (Pa. 2007). On December 3, 2004, we further ordered the trial court to determine whether Banks had the capacity to initiate clemency proceedings or to designate someone to initiate them on his behalf.

To say that our direction for expedition went unheeded by former Judge Conahan, who has since been removed from the bench and has pleaded guilty to unrelated federal criminal charges, would be an understatement. Many of the delays involved maneuvers by federal counsel seeking to burden the Commonwealth's ability to have its mental health experts examine Banks in order to prepare a case in rebuttal against counsel's claim that Banks had become insane. These defense motions, which were not authorized by our order directing a competency hearing, caused delay in both proceedings before Conahan; and the motions and attendant delays continued following our most recent, third direction to hold an appropriate competency hearing. The competency question is important, but narrow, and it should have been resolved sooner. Following our review of the competency determination rendered by the Honorable Joseph M. Augello, this Court concludes that Banks presently is incompetent to be executed under the standards set forth in Panetti and Ford. As further explained herein, we neither accept nor reject Judge Augello's additional determination related to Banks' competency to pursue clemency. The background and our reasoning follow.

- I -

After a series of delays detailed in the 2007 Banks opinion, the first competency hearing was held before then-Judge Conahan on January 30, 2006. Conahan found that Banks was incompetent to be executed and to decide whether to seek clemency. The Commonwealth sought review of that determination. One of the Commonwealth's primary complaints related to the trial court's refusal to permit the Commonwealth's expert to testify on the ground that defense counsel was not present during the expert's interaction with Banks. This Court concluded that there was no precedent from this Court or the U.S. Supreme Court requiring defense counsel's presence at a medical examination; we explained that the U.S. Supreme Court cases cited by counsel, Ford and Estelle v. Smith, 451 U.S. 454 (1981), simply did not support the blackletter law propositions for which Banks' counsel cited them. We also emphasized that the counsel-presence requirement argued by counsel, and imposed by the trial court, was never authorized by this Court, which had retained jurisdiction. See Banks, 943 A.2d at 238. Accordingly, on December 28, 2007, we directed the trial court to hold a second competency hearing without the restrictions that had been placed on the Commonwealth and further directed that, "with the exception of scheduling and logistical matters, the trial court is not to be diverted by tangential motions and assertions by counsel: this Court retains jurisdiction over such matters." Id. at 239 (emphasis original).

Despite our direction for expedition, the second competency hearing was not held until nearly eight months later, on August 14, 15, and 18, 2008 ("2008 Hearing").*fn3 On September 8, 2008, Judge Conahan issued an "order" again finding that Banks was incompetent under Ford, that he was incompetent to pursue clemency, and that his execution would violate the Pennsylvania and United States Constitutions. The Commonwealth appealed and the matter was briefed.

By order dated August 27, 2009, this Court: (1) rejected Judge Conahan's wholesale adoption of defense counsel's proposed findings of fact and conclusions of law as to Banks' competency to be executed and to pursue clemency; and (2) referred the matter, while retaining plenary jurisdiction, to then-President Judge Chester B. Muroski of the Luzerne County Court of Common Pleas to assign the case to another judge to hold a de novo competency hearing as expeditiously as possible.*fn4 See Commonwealth v. Banks, 989 A.2d 1 (Pa. 2009). In doing so, we noted that Conahan "simply adopted appellee George

Banks' counsel's proposed findings of fact and conclusions of law wholesale as his purported 'Determination of Competency Issues'" in violation of this Court's requirement of an "autonomous judicial expression of the reasons for granting or denying post-conviction relief." We also concluded that the proposed findings Conahan adopted were inappropriate for the decisional task because they included findings beyond the scope of the limited hearing. Finally, we noted that we could not simply return the matter to Conahan for resolution because of his subsequent removal from the bench in disgrace.

The duty to hold a third competency hearing was initially assigned to the Honorable Charles C. Brown, Jr., Senior Judge of Centre County. Banks' counsel then filed two additional motions with this Court -- a Motion for Notice of Evaluations by Commonwealth Experts and a Motion for Videotaping of Evaluations by Commonwealth Experts -- which caused even more delay, and which were summarily denied. This Court issued an extraordinary per curiam order on February 16, 2010 denying the motion related to videotaping, and noting that, "[t]his Court having now twice ruled upon the serial objections petitioner has forwarded concerning the manner in which the Commonwealth's competency examinations should be conducted, any further challenge to the evaluations is deemed defaulted." Our order also noted that, in the time since we had directed a new hearing, the severe shortage of commissioned judges in Luzerne County had been partially remediated, and so we directed the President Judge of Luzerne County "to reassign this matter to a sitting commissioned judge of the Court of Common Pleas of Luzerne County, who is to conduct any further proceedings, including the competency hearing this Court directed on August 27, 2009." Commonwealth v. Banks, 989 A.2d 881, 883 (Pa. 2010).

Thereafter, Judge Augello was assigned to preside over the third competency hearing. He promptly held the hearing on April 27-30, 2010, and filed proposed findings of fact and conclusions of law with this Court on May 17, 2010. Judge Augello concluded that Banks did not comprehend the reasons for the death penalty, and accordingly, found him incompetent under Ford. Judge Augello also found that Banks did not possess the mental capacity to initiate clemency proceedings or to designate someone to pursue clemency proceedings on his behalf. The Commonwealth filed exceptions to the proposed findings, Banks responded and this Court heard oral argument.

Judge Augello's proposed findings and the Commonwealth's exceptions are now before this Court for final disposition. Before turning to Judge Augello's findings and the parties' arguments, a brief explication of this Court's jurisdiction is in order.

- II -

This Court's December 1, 2004 order, invoking extraordinary jurisdiction to resolve the competency-to-be-executed question, implicitly recognized that there was no existing vehicle for Banks to present his execution-related claim. As the PCRA court initially determined, the competency-to-be-executed question did not squarely fall within any of the exceptions to the one-year time bar to the jurisdictional time requirements of the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, Ford itself provided no guidance on the subject, leaving it to the States to formulate their own procedures to review competency-to- be-executed questions as well as the substantive standards governing such review. Since that time, the High Court has at least clarified some of the outer parameters governing the process that is due when a colorable competency challenge is raised. See, e.g., Panetti, discussed infra. However, Panetti does not direct the specific vehicle for pursuing such relief and the question remains unanswered in Pennsylvania. For these reasons, this Court invoked its extraordinary jurisdiction under 42 Pa.C.S. § 726 to review the instant competency-to-be-executed challenge.

Subsequently, this Court referred the matter to the Criminal Procedural and Appellate Court Procedural Rules Committees to formulate rules governing the presentation and review of competency-to-be-executed claims. See Banks, 943 A.2d at 234 n.7. The rules have yet to be finalized as of this writing and this Court is awaiting the recommendation. See 40 Pa. Bull. 2397 (May 8, 2010) (proposed criminal procedural rules published for public comment) and 40 Pa. Bull. 2393 (May 8, 2010) (proposed appellate procedural rules published for public comment).

At the time Banks' counsel originally filed the competency-to-be-executed challenge there was no reason to foresee the intolerable delay that has occurred. Some of the reasons for delay can be addressed when the procedural rules are finalized; others require a firm hand by the judge making the competency determination. A Ford claim presumably ripens only after a death warrant has issued; those warrants establish a date certain for execution and expire in sixty days, see 61 Pa.C.S. ยง 4302(a) (expiration of warrant sixty days after it is signed), ...


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