Lucas: No requirement for affirmative instruction that jury unanimity is not required for mitigating factor

In Lucas v. Warden, No. 13-11909 (Nov. 12, 2014), the Court affirmed the denial of habeas relief to a Georgia inmate sentenced to death for three 1998 murders. The Court rejected Lucas’ ineffective assistance of counsel claim, finding that counsel did not fail to develop expert testimony that Lucas’ intoxication on the day of the murders rendered his confession unreliable. The Court pointed out that Lucas professed and exhibited a memory of the murders during his videotaped confession. The Court also rejected the argument that counsel failed to present Lucas life history as mitigation, finding that quite the opposite counsel presented substantial testimony of family history. The Court also rejected Lucas’ Brady claim, agreeing with the Georgia state courts that the testimony of a witness would have been cumulative at best. The Court rejected the request for a new trial based on the prosecutor’s improper statement during cross-examination during the penalty phase that prison escapes happen “every day.” The Court noted that the defense witness challenged this statement, and that the statement was “far less egregious” than what said by prosecutors in other cases in which no prejudice was held to have occurred. The Court rejected the argument that the jury should have been instructed that mitigating factors need not be found unanimously. The Court recognized that it is error to instruct a jury that it must agree unanimously on mitigating factors. But it found no requirement that an affirmative instruction must be given when the trial court has not otherwise suggested that unanimity is mandatory.