AND NOW, May 15, 1980, we the jurors empaneled

(insert either death or life imprisonment)

If the sentence is death complete the following portion.

(check only one block)

We the jury have found unanimously

( ) at least one aggravating circumstance and not

mitigating circumstance. The aggravating

circumstance(s) (is) (are)

(/) One or more aggravating circumstances which

outweigh any mitigating circumstances. The

aggravating circumstance(s) (is) (are)

Murder by contract

[ JUROR'S SIGNATURES ]

Frey nonetheless argues that Sorrentino's misstatements could have prejudiced him. Theoretically, the jury could have noticed that the judge and prosecution contradicted Sorrentino on the law and held it against Frey. But the record reveals no outspoken rebukes of Sorrentino, so it is most likely that the jury did not even notice. More importantly, even if the jury did notice, it apparently followed its proper instructions. At least we must presume so, absent any indication to the contrary.

Inadequate Stress on Lack of a Prior Record

As just noted, the prosecution and the trial judge both advised the jury that Frey had no prior record. On the other hand, defense counsel no doubt could have and, in our view, should have presented that fact more persuasively. During the sentencing hearing, Sorrentino did elicit from Frey's father that Frey had never been in trouble before, but, presumably because Sorrentino did not know that criminal history was a statutory mitigating factor, he never hammered the point home in his closing argument. A grudging acknowledgment by the prosecutor and a dry instruction by the trial judge were hardly perfect substitutes.

Nevertheless, Frey's lack of a criminal record was definitely emphasized to the jury during the sentencing proceeding. We cannot conclude that a slightly more favorable spin on Frey's acknowledged lack of criminal history would have, by itself, made a significant difference in the jury's weighing of factors, especially given that the crime was particularly horrible.12 Accordingly, our main consideration will be other potentially mitigating factors pressed by Frey on this appeal that neither the defense nor the prosecution argued in terms during the sentencing phase. We take those arguments in statutory order.

Failure to Argue Extreme Emotional Disturbance and Diminished Capacity

The revised statute lists as mitigating factors "influence of extreme mental or emotional disturbance," 42 Pa.Cons.Stat.Ann. § 9711(e)(2), and "substantial[ ] impair[ment]" of the defendant's "capacity ... to appreciate the criminality of his conduct or to conform his conduct to the requirements of law," 42 Pa.Cons.Stat.Ann. § 9711(e)(3). Although the trial judge instructed on both of these, and defense counsel could certainly have argued both, we conclude that there was virtually no chance that the jury would have found either one.

The psychological evidence from the expert, Dr. Wittmaier, simply did not support a finding of either extreme emotional disturbance or diminished capacity. Wittmaier concluded that Frey "ha[d] a good understanding of social conventions, [and] that his judgment would be generally adequate." Tr. 1034. Frey's only significant deviations from a normal psychological profile were harm avoidance, defendence, and exhibition, none of which were at all likely to convince a jury that Frey was emotionally disturbed or suffered from diminished capacity in a premeditated contract murder case. Hence even if Sorrentino should have argued either of these factors, Frey incurred insignificant prejudice from the failure to argue them.

Failure to Argue "Substantial Domination"

The revised statute considers both "extreme duress, although not ... such duress as to constitute a defense to prosecution" and "substantial domination by another person" as a mitigating circumstance. 42 Pa.Cons.Stat.Ann. § 9711(e)(5). The drafters of this statute obviously considered this lesser species of duress and "substantial domination" to be qualitatively similar, for they listed the two together as one mitigating factor. Moreover, although the Commonwealth conceded at oral argument, and we shall assume, that "substantial domination" is a somewhat less rigorous standard than this brand of duress, the difference between the two does not appear great, at least on the facts of Frey's case.13

When a defendant is in the penalty phase, the jury has already ruled out true duress of the kind that is a defense to guilt under 18 Pa.Cons.Stat.Ann. § 309 (quoted in note 9). The only sorts of duress remaining during the penalty phase of a capital case are therefore situations where (1) a "reasonably firm" person would have resisted actual or threatened use of force but the defendant did not (subsection 309(a)), or (2) the defendant has recklessly placed himself or herself in a situation where coercion by actual or threatened use of force is probable (subsection 309(b)). Frey's argument was of the first sort: Sorrentino argued, and Frey still maintains, that he was a weak person who gave in to Zehring's threats.

"Substantial domination," in contrast, might not require the actual or threatened force that is an element of duress. A dominant coconspirator may have a magnetic, persuasive personality and the defendant may simply be psychologically easy to manipulate, such that threatened force is unnecessary. Nevertheless, on these facts both defenses were similar in that the basic premise of both would have been that the dominant coconspirator, Zehring, led a weak Frey astray.

Because the arguments were so similar and were linked in the statute, reasonable defense counsel might have spoken of "duress" as a shorthand while making both arguments. But that is apparently not what happened here. Sorrentino vigorously argued duress, but, because he was using the incorrect statute, did not know that he could argue "substantial domination" to the jury. Sorrentino's mistake was not a verbal miscue, and we can imagine no tactical reason to argue duress but not "substantial domination," which the Commonwealth has conceded is slightly easier to prove. We will therefore assume that Sorrentino's failure to mention "substantial domination" was deficient performance for purposes of the first prong of Strickland.14

For purposes of the second, prejudice prong of Strickland, however, we must consider the likely strength of the "substantial domination" argument, had it been presented by counsel who knew to make the argument. In determining whether a competent argument would have swayed the jury, we must bear in mind that the jury heard a more than competent and very similar argument on "duress" and still returned a death verdict.

We believe that there was sufficient evidence for the jury to find "substantial domination" (and mitigating but not exculpatory duress, for that matter). Frey testified during the guilt phase that Zehring had continuously threatened him and his family and that he paid Zehring several times not to harm them. Frey said that he did not go to the police because Zehring had specifically threatened harm if he did so. He particularly described one incident where a raging Zehring, who at over six feet and about two hundred pounds was apparently much larger than Frey, had shone a flashlight in his face, brandished a gun, and threatened to kill him. The guilty verdict suggests, however, that the jury found much of Frey's trial testimony incredible.

Of course, the jury did not necessarily disbelieve Frey's version of events completely. Indeed, the prosecution primarily relied upon, and the jury most likely believed, Frey's earlier statements to the police. In one portion of his taped confession, which was played for the jury during the guilt phase, Frey stated that he decided to do what Zehring had suggested that he do--"waste" his wife. Tr. 697. In another portion of the statement, set out in the margin, Frey stated that he feared Zehring and that Zehring had threatened to kill him if he spoke to the police.15

Other evidence was adduced that Zehring was a scary, domineering person, while Frey was susceptible to domination. As to Zehring, several witnesses testified that Zehring was a strange man who had a fetish for weapons and often made threats. The jury could also have credited (at least partially) the testimony of Zehring's fellow inmates that Zehring was crazed and had boasted in jail that he was extorting money from Frey and intended to kill him. As to Frey, the expert witness Wittmaier had testified that Frey was of low-average intelligence, tended to be submissive, that he did not defend himself well, and that he expressed himself poorly. The jury could have concluded from Wittmaier's opinion testimony that Frey, although not particularly psychologically abnormal and therefore responsible for his own actions, was likely to go along with the suggestions of others, such as Zehring. In short, there was considerable evidence that although Frey was a voluntary participant, Zehring was the dominating force in the conspiracy.

On the other hand, there was also strong evidence against a finding of "substantial domination" (and mitigating duress). Most powerful was the testimony of Bowers that, months before the murder, Frey had expressed an independent inclination to kill his wife. Moreover, Frey had arranged the murder of his wife of over twenty years, and the discussions of her murder transpired over a long period. The jury could easily have concluded that even a submissive man does not easily arrange the murder of his wife simply because an acquaintance suggests it. And while it is possible that "substantial domination" can endure for months, given Frey's mature age and only slightly abnormal psychological profile, the jury may have found that most unlikely, particularly since his wife (and the mother of his children) was the victim.

Furthermore, as the Commonwealth observes, the evidence of "substantial domination" was argued, although not as such. Both sides incorporated all the evidence from the guilt phase into the immediately following penalty phase, and Sorrentino argued much of the evidence of "substantial domination," albeit in urging a finding of "duress."16 Although neither party mentioned "substantial domination" in its summation, the trial judge did in his jury instructions, and we must assume that the jury considered the evidence in light of its instructions. No doubt Frey's representation would have been stronger had Sorrentino recounted the evidence of "substantial domination" as such and dovetailed it into the statute. But his error was essentially one of mislabeling arguments that supported both "substantial domination" and mitigating duress, factors listed together in the statute, as supporting only the latter.17

Frey's theory of prejudice appears to be that the jury actually found neither "substantial domination" nor mitigating duress, but, with proper argumentation, it would have found "substantial domination."18 To make that fine distinction, the jury would have to have disbelieved that Zehring threatened force against Frey and his family, but still believed that Zehring exploited Frey's psychological susceptibility to domination. Such an interpretation was certainly possible, but unlikely. Moreover, we find it even less likely that, if the jury so found, it failed to credit Frey's psychological weaknesses either under the rubric of "substantial domination" or as part of its consideration of the character of the defendant and the circumstances of the case. Therefore, even if Frey is correct in how the jury interpreted the evidence, we highly doubt that Sorrentino's labeling error had any significant effect on the jury's decision.19

Failure to Argue Heberlig's Life Sentence

Frey also strongly urges that Sorrentino was deficient in failing to advise the jury that the triggerman, Heberlig, had received a life sentence just the week before. Frey contends that such evidence was admissible under the miscellaneous mitigating circumstances provision in the Pennsylvania statute, 42 Pa.Cons.Stat.Ann. § 9711(e)(8), or as a matter of federal constitutional law. He also suggests that he was significantly prejudiced by that failure because Heberlig's life sentence was later argued to Zehring's sentencing judge, who sentenced Zehring to life imprisonment.20 Blending its arguments on the two prongs of Strickland, the Commonwealth suggests that Heberlig's sentence was irrelevant and inadmissible, and that even if it had been admissible, arguing Heberlig's sentence may have backfired on Frey.

The parties spend much of their briefs disputing whether Heberlig's sentence would be admissible as a matter of present law. As a matter of Pennsylvania law today, codefendants' sentences may be excluded.21 It remains less clear whether the federal constitution (specifically the Fifth, Eighth, and Fourteenth Amendments) requires that codefendants' sentences must be admitted as mitigating evidence in a death penalty hearing.22 We do not need to address that issue here, however.

We deal not with an attack on a trial court's refusal to admit such evidence, but with a claim of ineffective assistance of counsel for failure to attempt to introduce such evidence. Under Strickland, the initial questions here are thus whether any competent defense counsel would have attempted to argue Heberlig's sentence in 1980, and if so, whether prejudice was "reasonably probable"--whether the evidence would have been admitted then and whether the jury would likely have been significantly impressed by that argument. Only if the answers were yes would we need to decide what the law is today.23

In 1980, the law was, as it is now, unclear whether a coconspirator's sentence was admissible. We will assume that competent defense counsel would not have refrained from offering such evidence based solely on doubts about admissibility. Such doubts might have played a role, however, in counsel's decision. More to the point, competent defense counsel in Frey's case would also have considered whether introducing Heberlig's life sentence would help Frey, and in this case that was debatable.

Heberlig was the triggerman, but in many other ways he was less culpable than Frey. Heberlig was a latecomer to the conspiracy who panicked and shot the victim when events did not go as planned. In contrast, the jury might have concluded that Frey was a cold-blooded conspirator involved from the beginning. On that view, if Heberlig deserved life imprisonment, the jury might have concluded that Frey deserved much worse. We conclude that reasonable counsel could well have differed about whether mention of Heberlig's sentence would have helped Frey.

At all events, because Heberlig's actions were not very similar to Frey's, we conclude that the argument, even if it had been attempted, and even if it had been allowed by the trial judge (which is questionable24), would not have swayed the jury much if at all. Moreover, although Frey correctly notes that the Heberlig and Frey sentences were introduced at the Zehring sentencing hearing by way of stipulation, there is no evidence that Zehring's sentencing judge took that factor into account. Far more important in Zehring's case were his disturbed mental state and his cooperation with authorities. We therefore do not consider Heberlig's sentence to be a significant mitigating factor that could help sustain the district court's conclusion of prejudicial ineffective assistance of counsel.

Failure to Argue Other Miscellaneous Mitigating Circumstances

Finally, Frey contends that Sorrentino should have focused the jury's attention on a variety of other possible miscellaneous mitigating circumstances related to Frey's personal background. These factors, which were adverted to during the guilt phase, include the tragic story of the 1977 death of Frey's son in an automobile accident, his ensuing impotence, and the partially related deterioration of his marriage; his somewhat low IQ and psychological weaknesses; and his good work record. All of this was undoubtedly admissible during the penalty phase as "other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense." 42 Pa.Cons.Stat.Ann. § 9711(e)(8).

Although Sorrentino mentioned some (though not all) of these factors in his closing argument during the penalty phase, he also told the jury that the only pertinent mitigating circumstances were age and duress. Instead of arguing these factors as independent mitigating circumstances, he attempted to shoehorn them into proof of duress (a finding of which he incorrectly believed would automatically save Frey's life).25 While failure to focus upon every single detail as a separate mitigating factor would not have constituted substandard performance, under the circumstances of this case, we will assume that Sorrentino's failure to argue any "miscellaneous" mitigating circumstance as such was deficient performance.

As with the lack of a prior criminal record, however, the jury was reminded of most of this information during the sentencing phase, and the trial judge properly instructed the jury that this sort of information should weigh in the balance of aggravating and mitigating factors. More precise argumentation may have helped Frey somewhat, but standing alone this would be an insufficient showing of prejudice. This "miscellaneous" factor does not stand alone, however, so we turn to consideration of all the ineffectively argued mitigating circumstances, as weighed against the aggravating factor of contract murder. See note 12.

C. Weighing the Aggravating and Mitigating Factors

In Pennsylvania, if a penalty phase jury finds at least one aggravating and one mitigating circumstance (as it did in Frey's case), it may only impose the death penalty if it unanimously finds that the aggravating circumstances outweigh the mitigating circumstances. 42 Pa.Cons.Stat.Ann. § 9711(c)(1). If the jury is deadlocked, the sentence must be life imprisonment. Id. For Frey to show sufficient prejudice, then, he must show a "reasonable probability" that, if he had had effective assistance, at least one juror would have decided differently and held out for a verdict of life imprisonment.

A reasonable juror would have had to find that Frey had no significant prior criminal history, for the Commonwealth conceded that. We have also concluded above that a reasonable juror could have, although could easily not have, found that Zehring "substantially dominated" Frey. A reasonable juror might also have considered various of Frey's personal circumstances (such as his psychological/intellectual profile, past family traumas, and so forth) as mitigating circumstances. But, in light of the guilt phase verdict (which is not challenged here), the jury also had to conclude that the aggravating circumstance of contract murder was proven beyond a reasonable doubt. Frey does not and could not contend that effective defense counsel would have prevented the jury from finding the single alleged aggravating circumstance of contract murder, as the evidence of that fact was overwhelming.

Frey instead contends that the jury could easily have found at least three mitigating circumstances (even lumping all the miscellaneous factors into one), and thus that it is "reasonably probable" that the jury would simply have concluded that three is more than one and sentenced Frey to life imprisonment. Perhaps so, but we cannot accept that argument. Strickland instructs that in assessing what would have transpired we must presume that the jury would act according to proper legal instructions. 466 U.S. at 694-95, 104 S. Ct. at 2068. The statute requires a weighing of factors, not a subtraction exercise in a factual vacuum. We must therefore consider not only possible mitigating factors, as we have done above, but also the aggravating factor. In particular, we must consider, as the jury did, not simply the fact of contract murder, but its nature.

As the first degree murder verdict attests, this was a "willful, deliberate and premeditated killing." 18 Pa.Cons.Stat.Ann. § 2502(a), (d) (Purdon 1983). The discussions and planning took place over several months, and Frey was involved during the entire time. Bowers's testimony suggested that Frey quite voluntarily contracted for his wife's murder. The jury surely could not have ignored that Frey callously borrowed the money to pay for his wife's murder from his wife herself. And it must have recalled that Frey's motive for killing his wife was, by his own admission, purely financial, and that he showed little visible remorse despite the brutal way in which the murder transpired. In short, this was not a murder contracted in a fit of provoked anger, but a calculated business-like deal.

With these facts in mind, we simply cannot conclude that there is any "reasonable probability" that, with effective assistance of counsel, Frey's jury would have found that the balance of mitigating and aggravating factors tipped the other way. Sorrentino's misstatements about the statute were corrected. All the evidence was before the jury, which was properly instructed. The jury was reminded of Frey's lack of a criminal record and of his psychological/intellectual profile, and although Sorrentino did not argue "substantial domination" as such, he did argue essentially the same facts in support of the cognate theory of mitigating duress. After five and a half hours of deliberation (about the same amount of time that it took to determine guilt, and not a long period for a capital case), the jury concluded that the mitigating factors paled in comparison to the horrible nature of the contract killing.

Reviewing the record twelve years later, and aided by excellent advocacy by counsel for both sides, we see only a very remote possibility that that jury would have weighed the facts differently had Sorrentino argued the same facts to prove slightly different legal points. We recognize that our legal system depends critically upon defense counsel's effective advocacy, and in some cases, especially close cases, substandard marshaling of the evidence by defense counsel will be sufficiently prejudicial to warrant retrial. In our view, however, Sorrentino did a quite capable job of arguing the facts in Frey's favor, and this was not a case in which better labeling of legal arguments could reasonably likely have tipped the lay jury's balance away from a death verdict. Put another way, in the context of the entire case, Sorrentino's shortcomings, though highly unfortunate, have not "undermined [our] confidence in the outcome," Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

IV. CONCLUSION

The order of the district court granting the writ of habeas corpus to petitioner-appellee Roderick Frey will be vacated. The case is remanded to the district court for further consideration of issues raised in Frey's petition but not reached by that court.

COWEN, Circuit Judge, dissenting.

Because I believe that Roderick Frey has demonstrated a "reasonable probability" that but for the unprofessional conduct of counsel, the result of the penalty phase would have been different, I would affirm the district court's order granting the writ of habeas corpus. Therefore, I respectfully dissent.

As the majority concedes, defense counsel's reading from and reliance on a death penalty statute which had been declared unconstitutional three years earlier constitutes substandard performance and thereby satisfies the first prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The sole issue in this case is whether this error resulted in "prejudice" sufficient to satisfy the second prong of the Strickland test. It should be stressed at the outset that the Court in Strickland rejected an "outcome-determinative standard" under which a petitioner would have to prove by a preponderance of the evidence that the result would have been different had the petitioner been provided reasonably effective representation. Id. at 693, 104 S.Ct. at 2067. Instead, the Strickland Court defined a "reasonable probability" of a different outcome as "a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. The majority fails to accept the most obvious fact of this case: that had Frey been represented by even moderately competent counsel, a legitimate and compelling argument would have been advanced on the penalty phase why life imprisonment was appropriate. The jury never heard an effective or legally correct argument from the attorney for Frey (Frey's "champion") why Frey should not suffer death. The Court in Strickland also cautioned that "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069. Unlike the majority, I cannot accept as fair a jury verdict of death when the defendant was represented by an attorney who labored under a long amended law, and where the law presently available afforded numerous and cogent arguments which could have been advanced in favor of a sentence of life imprisonment instead of death.

The majority concludes that no reasonable probability of a life sentence existed, finding that the jury was not "confused" by counsel's error and the jury would in all likelihood have reached the conclusion it did even if counsel had based his penalty phase presentation on the correct statute. I disagree with both of these premises.

As an initial matter I note the obvious: a jury expects defense counsel in a capital murder case to at least be familiar with the correct and applicable death penalty statute. While it is true that the prosecutor knew the correct law and the court at the conclusion of summations instructed the jury on the correct statute, such knowledge by the prosecutor and instructions by the trial court cannot be presumed to have cured any confusion which unquestionably arose, as the majority seems to suggest. Instead, the conflicting instructions could only have added to the jury's confusion. And of commanding significance, which the majority does not appreciate or fails to grasp, a jury looks to defense counsel (not the prosecutor or the judge) for an argument and reasoning why the defendant should not suffer death. The jury does not listen to the prosecutor for an analysis of the evidence which is cast in a light most favorable to the defendant. Nor does the jury listen to the charge of the court for reasoning which would justify a sentence of life. The jury receives the court's charge as a neutral and objective statement of the law--not an argument for the defendant. Certainly, no jury is "tuned in" to why the defendant should be spared when the prosecutor is delivering his summation. It is obvious that the jury received no such message from the prosecutor in this case.

I do not agree with the majority's conclusion that no "prejudice" exists to satisfy the second prong of Strickland. I believe there is a "reasonable probability" that the outcome would have been different had counsel fashioned his penalty phase presentation in accordance with the correct statute. At the least, I do not have confidence in the death verdict which the majority has rationalized into a fair verdict.

As a general matter, such a gross error on the part of defense counsel may well have served to undermine the jury's confidence in the arguments which were made on Frey's behalf. It is difficult to imagine that such an error would not have at least some adverse impact on the jury's perception of defendant's counsel and Frey himself.

More specifically, I am deeply troubled by the simple fact that Frey's "advocate" did not advocate on his behalf. As the majority acknowledges, as it must, the prejudice question under Strickland is whether all of counsel's unprofessional errors, taken as a whole, undermine our confidence in the result. Had counsel here simply failed to mention one applicable mitigating factor, my confidence might not be so drastically undermined. But the error was not near so minor. While Frey thought he had an attorney "representing" him during the penalty phase, the net effect was no different than not being represented at all. I say this since it is the major inarticulated premise of the majority that it does not matter that Frey was not represented (or incompetently represented), since the prosecutor and judge effectively represented him.

Counsel for Frey geared his entire presentation around the erroneous premise that if one mitigating circumstance was found, a life sentence was automatic. The majority may be correct when it suggests that none of the mitigating factors, standing alone, was sufficient to outweigh the single aggravating factor. The problem with the majority's analysis, however, is that its focus is on each separate possible mitigating factor, how that factor might have been argued had counsel known it was available, and whether that particular factor would have been found to outweigh the one single aggravating factor. The majority spends just three pages discussing the impact that all of these numerous mitigating factors, taken together, might have had. The majority appears ready to concede (but it fails to do so) that had the proper statute been used by defense counsel the jury might well have concluded that three or more mitigating factors were present. However, the majority inexplicably surmises that "the jury concluded that the mitigating factors paled in comparison to the horrible nature of the contract killing." Maj.Op. at 369.

The majority's analysis cuts both ways. Its own argument as to the nature of the crime points up how critically important it was in this case for counsel to present the applicable mitigating factors as a whole and to argue that when added together and carefully balanced against the single aggravating factor, death was not the appropriate penalty. The problem, in short, was that while the jury may have been "told" by the prosecution and the court that other mitigating factors existed under the statute, no one ever attempted to persuade them that the sum total of those factors outweighed the one aggravating factor. As wisely noted by the district court, "the issue is not whether the jury was properly instructed as to the law, but whether petitioner received constitutionally adequate assistance of counsel in presenting his case to the penalty jury." Dist.Ct.Op. at 12. A state criminal trial judge instructing the jury that the statute required them to balance the factors, and a reasonably competent attorney for Frey arguing this point (while suggesting on which side the balance should weigh) are two completely different things.1 The majority fails to come to grips with the reality of how cases are decided in an actual courtroom setting: when the jury hears on summation an argument of the prosecution which is shortly validated by the trial judge, and an incorrect legal argument and no actual analysis by the defense attorney, the defendant's fate is sealed.

The facts of Woodard v. Sargent, 806 F.2d 153 (8th Cir.1986) bear a marked similarity to those of the case presently before us. In Woodard, the defendant claimed his lawyer was constitutionally ineffective during the penalty phase of his murder trial because counsel failed to secure for his client the benefit of a new mitigating circumstance added to the Arkansas statute before Woodard's case was tried. The factor added to the statute which Woodard's counsel failed to present to the jury, although it was applicable, was lack of a prior history of significant criminal activity. The court found the omission "serious and important," noting that "[t]he whole question of the death penalty depends, under Arkansas law, on the jury's discretion in weighing aggravating and mitigating circumstances." Id. at 157.

Because "[a] finding of a mitigating circumstance should have been an important objective in Woodard's case, and the failure to seek the inclusion of this obvious mitigating circumstance certainly fell below the threshold of reasonably competent assistance," the court concluded that the first prong of Strickland was satisfied. Id. The court also found the error prejudicial under Strickland's second prong. The court based its conclusion as to prejudice, in part, on the fact that the first vote taken by the jury was seven to five.2 However, the court was clearly troubled by the magnitude of the error committed and concluded that "there is a reasonable probability, in the Strickland sense, that the outcome of the case would have been different had the jury known of this clearly applicable mitigating circumstance." Id. at 158.

Like the court in Woodard, I would conclude that the failure of counsel to present all of the applicable mitigating factors and to argue that they outweighed the single aggravating factor, was error resulting in prejudice sufficient to satisfy Strickland's second prong.

The sentencing stage of any case, regardless of the potential punishment, is "the time at which for many defendants the most important services of the entire proceeding can be performed." ABA Standards on the Administration of Criminal Justice, Sentencing Alternatives and Procedures § 5.3(e). The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of the trial.

Stanley v. Zant, 697 F.2d 955, 963 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S. Ct. 2667, 81 L. Ed. 2d 372 (1984).

In conclusion, I can think of few "errors" more egregious than defense counsel acting under a complete misapprehension of the applicable law at the penalty phase. The mistake most certainly "undermines [my] confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. Here, no arguments were made to the jury on the defendant's behalf as to applicable mitigating circumstances. In my view this deprived the defendant of the only chance he had for a sentence of life instead of death. Unlike the majority I think it is more than "theoretically possible," Maj.Op. at 350, that the jury would have sentenced Frey to life imprisonment if he had had effective assistance of counsel.

Frey is a loathsome and despicable human being. As the jury decided following the guilt phase of his trial, he surely deserves, at the least, to spent the remainder of his days in jail for the unconscionable crime he committed. But whether he should also suffer death has never been properly adjudicated by a jury which had the question competently and fairly placed in its hands. I would affirm the order of the district court granting a writ of habeas corpus.

In the district court, Frey also challenged the adequacy of the proportionality review conducted by the Pennsylvania Supreme Court. Additionally, he raised constitutional challenges based on the alleged fact that murder defendants in Lancaster County who waive their right to a jury trial invariably receive life imprisonment, while juries tend to impose death sentences. The district court's opinion mentioned but did not reach these issues, and Frey may have raised others. The parties have not argued those issues before us, and we express no view on them

Apparently Zehring, with Frey's approval, made two separate attempts on Mrs. Frey's life. Zehring had originally arranged an attempt with another person (whose identity remains unknown), but that attempt failed when Zehring and his accomplice were unable to locate their victim. Mr. Frey also approved the second (successful) attempt. Because Frey's jury was never told of the first attempt, it is not relevant to our decision

The defense had earlier called several character witnesses, who had testified to Frey's reputation for telling the truth and being law abiding

Frey's duress defense at trial appears to have evolved. Frey claimed during the guilt phase that he made payments to Zehring, instead of going to the police, to prevent Zehring from hurting the Frey family. On that view, Frey never wanted his wife murdered. At the penalty phase, however, Frey's desire to have his wife killed had been established. The defense at that stage seems to have been that, at worst, Frey had gone along with Zehring's plan, and that Zehring had threatened Frey both before and after the murder to prevent Frey from backing out and going to the police

That subsection provides:

(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).

Frey has not cross-appealed the district court's conclusion that he received effective assistance of counsel during the guilt phase

The earlier statute read, in relevant part:

(d) Aggravating and mitigating circumstances.--If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment:

(1) Aggravating circumstances:

(ii) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

(2) Mitigating circumstances:

(i) The age, lack of maturity, or youth of the defendant at the time of the killing.

(ii) The victim was a participant in or consented to the defendant's conduct as set forth in section 1311(d) of this title or was a participant in or consented to the killing.

(iii) The defendant was under duress although not such duress as to constitute a defense to prosecution under section 309 of this title (relating to duress).

Reprinted in note accompanying 42 Pa.Cons.Stat.Ann. § 9711 (Purdon 1982).

The statute in effect at the time of Frey's crime and trial read, in relevant part:

(c) Instructions to jury.--

(1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters:

(iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.

(d) Aggravating circumstances.--Aggravating circumstances shall be limited to the following:

(2) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.

(e) Mitigating circumstances.--Mitigating circumstances shall include the following:

(1) The defendant has no significant history of prior criminal convictions.

(2) The defendant was under the influence of extreme mental or emotional disturbance.

(3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(4) The age of the defendant at the time of the crime.

(5) The defendant acted under extreme duress, although not under such duress as to constitute a defense to prosecution under Pa.C.S. § 309 (relating to duress), or acted under the substantial domination of another person.

(6) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal acts.

(7) The defendant's participation in the homicidal act was relatively minor.

(8) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.

Pa.Cons.Stat.Ann. § 9711(c), (d), (e) (Purdon 1982) (subsequently amended in a manner not relevant here)

Pennsylvania's duress defense statute, 18 Pa.Cons.Stat.Ann. § 309 (Purdon 1983), which is derived from section 2.09 of the Model Penal Code, reads:

(a) General rule.--It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(b) Exception.--The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

The only statutory factors on which the trial court did not instruct were consent or participation of the victim and minor participation in the crime, 42 Pa.Cons.Stat.Ann. § 9711(e)(7), (8). Obviously, Frey's wife did not voluntarily participate in her murder, and Frey's participation was not minor, especially given what the jury necessarily found at the guilt phase

The sentencing verdict slip, which we have reproduced from Frey III, 554 A.2d at 31 n. 2, read:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Because the prejudice question under Strickland is whether all of counsel's unprofessional errors combined undermine our confidence in the result, we delay consideration of that ultimate issue until we have assayed all the arguments that Sorrentino should have made but did not make. We will, however, analyze the strength of Frey's case on each potentially mitigating factor as it would have been argued by competent counsel aware of the correct statute (not by the nation's finest defense lawyers). Then we will aggregate the defense's arguments on all the potentially mitigating factors and compare them to the prosecution's very strong case on the single aggravating factor of contract murder. Finally, we will assess whether it is reasonably likely that, if Frey had had proper assistance of counsel, the jury would have returned a verdict of life imprisonment

We have not discovered any Pennsylvania case discussing the difference between "substantial domination" and mitigating but nonexculpatory "extreme duress."

Frey also contends that Sorrentino's lawyering was deficient for not calling Zehring to the stand. In 1984, years after the trial, and in 1990 at the federal habeas hearing, Zehring testified in a sworn statement that he was the moving force behind the plot, and that he manipulated Frey as a puppeteer would a puppet

While it is certainly possible that, at Frey's trial, Zehring could have supported Frey's claims of substantial domination and duress, that was highly uncertain. Zehring's testimony came much later, at a time when he was assured of a life sentence, while at the time of Frey's trial, Zehring had yet to plead guilty. Sorrentino testified before the district court that Zehring's story has changed since the time of Frey's trial. Moreover, by all accounts, including the accounts of Zehring's fellow inmates who testified at Frey's trial, Zehring is a bizarre person. His credibility was and is questionable, especially as he admits that his current recollection of the events of 1979 is hazy due to his abuse of amphetamines.

Given the deference that we must accord trial counsel's strategic choices, we conclude that it was not substandard performance for Sorrentino to have concluded at that time that there was no way of knowing what Zehring would say, that Zehring's testimony on cross-examination might well hurt Frey's case, and hence that calling Zehring was too risky. For purposes of judging ineffective assistance, then, we place no weight on Zehring's subsequent statements.

Q. Did you meet with [Zehring] on the evening of the 7th [of November, the day before the crime]?

A. Yeah. He came to my residence.

Q. Do you recall what time that was?

A. Around eleven o'clock.

Q. Did Mr. Zehring threaten you in any way?

A. Yes.

Q. How was that?

A. He told me that if I would even talk to the police about this, I would get the same thing my wife got.

Q. What is your understanding of that?

A. That I'll be shot, too.

Q. Did he tell you how or who this would be done by--you would be shot, too?

A. Yes.

Q. What did he say?

A. He told me that the second party that was involved in this with him knows what I look like, they know where I work, they can get to me any time.

Q. Do you believe this to be true?

A. Yes.

Q. Do you have a fear of Mr. Charles Zehring?

A. Yes.

Q. And would you explain to me why you fear Mr. Zehring?

A. Because he might have me killed now.

Tr. 717-18.

It is not clear whether the conversation recalled in this excerpt took place before or after the murder. The murder took place early in the morning of November 8, 1979, and Frey was recalling a conversation of the evening of November 7. On the other hand, in his statement Frey repeatedly insisted that he did not know beforehand that his wife would be shot, and, on this theory, if he feared being shot, then the conversation with Zehring must have taken place after the murder.

The following is an excerpt from Sorrentino's closing:

Mr. Zehring is not a nice guy. Mr. Zehring through the Commonwealth's own witnesses and through the witnesses we produced was proved to you to be a man who always had guns, always had weapons, armed bombs, had books on anarchy, et cetera, made threats, people consider him a little crazy ...

Did Mr. Zehring coerce Mr. Frey in any way? Is this the situation where there was a sequence of events? You heard about the hiring and following of Mrs. Frey for two months. Was Mr. Frey suckered? Was Mr. Frey convinced maybe this was a good idea? Did it go along that kind of scenario? Is that what happened here?

I can't believe ... that Mr. Frey just suddenly decided to have his wife killed and went to Mr. Zehring and said here is some money, kill my wife. I don't believe that at all. I think there was duress in this case. I think when Mr. Frey tells you that he was threatened, he was threatened. Whether he was threatened before or after he paid the money or for what purpose he paid it, he was threatened. He was threatened before Mrs. Frey was killed. When he tells you that one morning in the Turkey Hill parking lot Mr. Zehring appeared with black all over his face and a sweatshirt and held a gun and a flashlight in his eyes, that is a threat. That is coercion. That is duress. It was verified by the Lancaster County prisoner[s].

The psychologist told you about Mr. Frey and what kind of man he is. He has a 91 I.Q. He is not a super intelligent person. He is not someone who, I don't think, could coldly and calculatingly do this kind of thing without some kind of pressure from another source. I suggest to you again the pressure was from Mr. Zehring and that this thing took a sequence of events. It wasn't as if Mr. Frey went over to Mr. Zehring and said here is $5,000, kill my wife. That is not what happened. The payments were spora[d]ic payments and the Commonwealth cannot refute that. This thing took a course of action, it went along, and it got more serious, more aggravating, as it went along.

But there was duress. And that is all that is required in this proceeding. If you believe that Mr. Zehring coerced, threatened, placed Mr. Frey under duress prior to the death of Barbara Jean Frey, that is enough. He is entitled to be in prison for the rest of his life. But he doesn't deserve the death penalty.

Tr. 1377-80.

This conclusion is not surprising because, as noted above, on these facts the two defenses were very similar. We have observed that the only relevant difference may be that mitigating duress requires an element of force, whereas force may be unnecessary for a "substantial domination" claim

We know only that the jury found at least one mitigating circumstance. We do not know which mitigating circumstances the jury found. The box that the jury checked on the verdict form required it only to list the aggravating circumstances, not the mitigating circumstances. See note 11. If the jury actually found mitigating duress or "substantial domination," Frey would have suffered no prejudice from the failure to argue "substantial domination."

Frey argues that the reference to "duress" was harmful because the jury had rejected duress as a defense to the conviction. But Sorrentino properly spoke of "duress"--even the correct statute uses the term. We believe that the jury properly understood that the issue was being resubmitted to the jury for a different purpose and with a slightly different standard--as a factor, among many, to help determine the appropriate penalty, rather than as an absolute defense to guilt. Moreover, as we observed in note 4, the duress defense during the sentencing phase was somewhat different as a factual matter from the duress defense during the guilt phase

In our view, the only danger in speaking solely of "duress" was that the jury might have equated "substantial domination" and "duress." But as we noted in the text, the difference between the two was not great, and even if the jury failed to focus on "substantial domination," it was entitled to consider Frey's psychological weaknesses as a mitigating personal characteristic.

Because Zehring was sentenced to life imprisonment long after Frey's trial, Sorrentino obviously could not have raised Zehring's sentence. Zehring's sentence may have been relevant in the post-trial proportionality review required by Pennsylvania law, but the district court did not reach Frey's claim regarding the proportionality review, and it is not before us. Zehring's sentence concerns us here only because Frey argues that Heberlig's sentence made a difference in Zehring's sentencing, and so could also have made a difference in Frey's case

The Pennsylvania Supreme Court held in Frey's own case that

[s]entencing is a highly individualized matter, and we have already ruled that the cases against appellant's co-conspirators are not similar to appellant's case for purposes of proportionality review. [Frey I ], 504 Pa. at 444-45, 475 A.2d at 708. The sentence received by a co-conspirator is not a mitigating circumstance as to appellant's role in the crime.

Frey III, 554 A.2d at 33. See also Commonwealth v. Haag, 522 Pa. 388, 562 A.2d 289, 298 (1989) (approving trial court's ruling that jury would not be apprised of acquittal of one codefendant and life sentence of another).

In Lockett v. Ohio, a plurality of the Supreme Court took the view that the Constitution requires that the sentencer in a capital case be permitted to consider "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence of death." 438 U.S. 586, 606, 98 S. Ct. 2954, 2965, 57 L. Ed. 2d 973 (1978). That view became the majority view in Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 874, 71 L. Ed. 2d 1 (1982). The Court has reaffirmed that holding numerous times since then, notwithstanding criticism, most vociferously from Justice Scalia, see Walton v. Arizona, 497 U.S. 639, 649-58, 110 S. Ct. 3047, 3058-68, 111 L. Ed. 2d 511 (1990) (Scalia concurring). The Court has also broadly defined what is relevant to character, record, and circumstances of the crime. As long as any reasonable juror might use evidence in support of a life verdict, the court must admit it. McKoy v. North Carolina, 494 U.S. 433, 436-438, 110 S. Ct. 1227, 1231-34, 108 L. Ed. 2d 369 (1990)

On the other hand, the Court has never ruled directly upon the relevance of codefendants' sentences. In Parker v. Dugger, --- U.S. ----, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991), Justice O'Connor's majority opinion noted in passing that, pursuant to both Florida and federal law requiring consideration of all mitigating evidence, the Florida trial court had admitted evidence that none of Parker's accomplices had received a death sentence. Id. at ----, 111 S.Ct. at 736. The Court's holding, however, did not turn on that point. The Court has held that state appellate courts need not compare a defendant's sentence to those of others convicted of similar crimes, Pulley v. Harris, 465 U.S. 37, 43, 104 S. Ct. 871, 875-76, 79 L. Ed. 2d 29 (1984), but the issue there was not admissibility of evidence before a sentencing jury and did not focus on coconspirators' sentences in particular.

The state and lower federal courts have split. One line of cases considers codefendants' life sentences relevant, albeit with little discussion why. See, for example, Brookings v. State, 495 So. 2d 135, 142-43 (Fla.1986) (jury may compare sentences of those culpable of same crime, but not sentences of those guilty of lesser crimes); People v. Gleckler, 82 Ill. 2d 145, 44 Ill. Dec. 483, 492-95, 411 N.E.2d 849, 858-61 (1980) (vacating death sentence partly based on life sentence given to accomplice); State v. McIlvoy, 629 S.W.2d 333, 341-42 (Mo.1982) (death sentence disproportionate to crime where defendant was weakling and follower of another defendant who had received life sentence).

Another line of cases holds that accomplices' sentences may be excluded because not material to the defendant's character or record or to the circumstances of the defendant's crime, and because the same logic might require admission of coconspirators' death sentences. See, for example, Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir.1986); People v. Dyer, 45 Cal. 3d 26, 69-71, 246 Cal. Rptr. 209, 234-36, 753 P.2d 1, 26-27 (1988); State v. Williams, 305 N.C. 656, 686-87, 292 S.E.2d 243, 261-62 (1982); Brogie v. State, 695 P.2d 538, 546-47 (Okla.1985); Johnson v. State, 477 So. 2d 196, 218 (Miss.1985), rev'd on other grounds, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988).

It would make no sense to require resentencing on this basis if the trial court on resentencing could, based on the law today, properly exclude the evidence of coconspirators' sentences

Introduction of Heberlig's sentence may have required considerable additional testimony regarding Heberlig's role. The jury may not have known the details of Heberlig's role in the offense: the parties barely mentioned Heberlig, referring to him only as "Mr. X" and instead focusing on the roles of Zehring and Frey. Thus, even if the trial judge had not anticipated the Pennsylvania Supreme Court's later holdings and considered Heberlig's sentence legally relevant, he may have desired to exclude it on the ground that it would distract the jury

The relevant portion of the closing argument was as follows:

Let's talk about Mr. Frey.

When we talk about duress, you have to consider the person you are judging first. I am not going to belabor it. You have heard it.

Mr. Frey is forty-three years old. He has no prior record. He has children. He has a family. You have seen some of them on the stand. He has worked consistently through his entire life.

His intelligence, his background, his demeanor, his personality, is not consistent with this crime. And I suggest to you that even if you believe that he was involved in this crime, and obviously you do or you wouldn't have convicted him, there had to be duress and there had to be duress in view of the other testimony you heard in the case.

Tr. 1376-77. Sorrentino then launched into an extended discussion of Zehring's coercion of Frey and of Frey's susceptibility thereto. That portion of the summation is quoted in note 16. At no point in his summation did Sorrentino mention the death of Frey's son in an automobile accident, although mention of that fact may have been unlikely to elicit sympathy, given that Frey chose to have his wife killed in a staged automobile accident.

Moreover, in assessing the possible prejudice which may have resulted from counsel's error as to the applicable law, we must examine counsel's performance as a whole at the penalty phase. See King v. Strickland, 714 F.2d 1481, 1491 (11th Cir.1983), vacated on other grounds, 467 U.S. 1211, 104 S. Ct. 2651, 81 L. Ed. 2d 358 (1984); Mathis v. Zant, 704 F. Supp. 1062, 1064 (N.D.Ga.1989) (typically, ineffective assistance is shown through combination of weak closing argument and failure to present mitigating evidence). The majority concludes that counsel's "defense of Roderick Frey at the death penalty phase was an undeniably powerful and emotional presentation by a skilled advocate." Maj.Op. at 358. I do not agree. The general weakness of counsel's closing must be considered in conjunction with the total and appalling failure to present and argue applicable mitigating factors. How the majority can characterize an argument as "powerful and emotional" when the argument is not even addressed to the law which the jury will shortly hear charged by the trial judge completely escapes me

It took the jury in this case five and a half hours to return its verdict following the penalty phase. While the majority states that this is a notably short period of time, I would point out that the timing suggests that the vote was not unanimous the first or even the second time around