Death penalty instructions to jury are clear enough, Seventh Circuit rules.

Pattern jury instructions may be confusing for most lay people, but that is not enough reason to grant a condemned killer in Illinois a new sentencing hearing, according to the Seventh Circuit. (Free v. Illinois, Nos. 92-3618, 92-3711, and 93-2517,1993 U.S. App. LEXIS 33329 (7th Cir. Dec. 21, 1993).) The court overturned rulings by lower federal courts that James Free was entitled to a new sentencing hearing.

Free was convicted in 1979 of killing a woman while he was trying to rape her During the trial's sentencing phase, the jurors were told, "[I]f from your consideration of the evidence and after your due deliberation you unanimously find that there are no mitigating factors sufficient to preclude the imposition of the death sentence then you should return a verdict that the defendant be sentenced to death."

Free was on drugs when he allegedly killed the woman, and he had no significant criminal history. Illinois accepts these circumstances as mitigating factors. However, the jury found there were "no mitigating circumstances sufficient to bar the death penalty."

On appeal, Free presented testimony by University of Chicago law professor and sociologist Hans Zeisel that the jurors probably did not understand the sentencing instructions the judge gave them. Zeisel had tested a total of 238 randomly chosen jury pool members to see if they understood the instructions given in death penalty cases. About 40 percent of those given the pattern instructions did not.

The results were no better when Zeisel repeated the test using the specific facts and instructions in Free. Kimball Anderson of Chicago, Free's court-appointed lawyer, argued that this showed Free's sentence was defective because the instructions were not clear.

The federal magistrate agreed, and the district judge granted Free's habeas petition. Criminal defense lawyers and prosecutors hoped that the state's instructions might be clarified. Death-row inmates hoped for greater opportunities to have habeas petitions considered. (See Illinois Death Penalty Instructions Too Confusing. Killer to Be Resentenced, TRIAL, Feb. 1993, at 94.)

Last December Chief Judge Richard Posner, in a 2-to-1 opinion, dashed these hopes. He said that explaining the jury instructions further would have been belaboring the obvious. He ruled that the study was not helpful because Zeisel had not used actual jurors. Sitting through a trial and then hearing lawyers explain the instructions may help jurors comprehend them, he reasoned. He also faulted the study for not proposing alternative instructions edited for clarity and testing them with a control group.

In his dissent, Judge Richard Cudahy pointed out that though there was no control group, Free did introduce evidence from a linguistic expert that a better instruction could have been drafted. Cudahy wrote, "I do not think an appellate court should be quite so cavalier in upsetting these factual findings."

Anderson has petitioned the Seventh Circuit to rehear the case en banc.