Williams v. Matesanz

United States Court of Appeals
For the First Circuit

No. 00-1204

REESE WILLIAMS, JR., A/K/A OMAR ABDUR RAHIM,

Petitioner, Appellant,

v.

JAMES MATESANZ,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Willie J. Davis, with whom Davis, Robinson & White, LLP, was
on brief, for appellant.
Elizabeth Klein Frumkin, Assistant Attorney General,
Commonwealth of Massachusetts, with whom Thomas F. Reilly,
Attorney General, was on brief, for appellee.

October 25, 2000
 SELYA, Circuit Judge. Asserting that a state trial

judge's jury instructions incorrectly described the

prosecution's burden of proof, petitioner-appellant Reese

Williams, Jr., sought habeas corpus relief in the federal

district court. He now appeals the district court's order of

dismissal.

Because the petitioner filed his habeas application on

September 10, 1997, the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214

(1996) (codified in scattered sections of 28 U.S.C.), governs

his case. Bui v. DiPaolo, 170 F.3d 232, 235 (1st Cir. 1999)

(holding that the AEDPA applies to habeas proceedings instituted

on or after April 24, 1996). The neoteric standard of review

imposed by the AEDPA "places a new constraint on the power of a

federal habeas court to grant a state prisoner's application for

a writ of habeas corpus with respect to claims adjudicated on

the merits in state court." Williams v. Taylor, 120 S. Ct.

1495, 1523 (2000). Relying upon our formulation of this new

constraint, O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir.

1998), the district court determined that the AEDPA precluded

relief in this situation. Because O'Brien is congruent with the

Supreme Court's subsequent holding in Taylor, we affirm.

I. BACKGROUND

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 In its present posture, this appeal does not require

us to canvass the evidence leading to the petitioner's quarter-

century-old conviction for first-degree murder. Accordingly, we

turn directly to the travel of the case, referring the reader

who hungers for a more detailed account of the underlying facts

to the opinion of the Massachusetts Supreme Judicial Court (SJC)

rejecting the petitioner's direct appeal. See Commonwealth v.

Williams, 391 N.E.2d 1202, 1205 (Mass. 1979).

The Commonwealth charged the petitioner with

participating in an armed robbery that resulted in the slaying

of a shopkeeper. The petitioner unsuccessfully interposed an

alibi defense and a claim of mistaken identity. Although the

evidence depicted the petitioner's alleged confederate as the

actual triggerman, a petit jury, instructed on the Massachusetts

felony-murder rule, found the petitioner guilty of first-degree

murder on May 16, 1973. The trial judge sentenced him to life

imprisonment. The SJC affirmed the conviction. Id. at 1216.

Roughly sixteen years later, the petitioner sought

post-conviction relief. He based his claim on newly-decided

cases that appeared to call into serious question the trial

judge's repeated references in his jury instructions to a "moral

certainty" criterion. In the petitioner's view, these

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references reduced the prosecution's burden of proof below the

constitutionally required standard.

A justice of the superior court — not the original

trial justice, who had died during the intervening years —

rejected this contention in a meticulously reasoned rescript.

See Commonwealth v. Williams, Crim. No. 96965 (Mass. Super. Ct.

Aug. 2, 1996) (St. Ct. Op.). The petitioner's attempts to

secure further review in the Commonwealth's courts were

unsuccessful.

Having exhausted his state remedies, the petitioner

instituted a federal habeas proceeding. He again posited that

the state trial court's extensive use of the phrase "moral

certainty" had violated his right to due process and rendered

his trial fundamentally unfair. The district court, accepting

the report and recommendation of a magistrate judge, applied the

AEDPA standard as elucidated in O'Brien, 145 F.3d at 24, and

dismissed the application. The court did, however, grant a

certificate of appealability. See 28 U.S.C. § 2253(c)(1). This

appeal followed.

II. THE HABEAS STANDARD

The AEDPA directs federal courts to refuse a writ of

habeas corpus at the behest of a state prisoner unless the

underlying state adjudication

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 (1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the
United States . . . .

28 U.S.C. § 2254(d)(1). In O'Brien, we determined that this

statute requires a federal habeas court first to assess whether

the state court acted contrary to a legal rule prescribed by the

Supreme Court. 145 F.3d at 24. In the absence of a controlling

rule (or if the state court correctly identified the controlling

rule), the federal habeas court then proceeds to determine

"whether the state court's use of (or failure to use) existing

law in deciding the petitioner's claim involved an unreasonable

application of Supreme Court precedent." Id.

We decided O'Brien without explicit guidance from the

Supreme Court. Last term, however, the Court spoke to the same

general set of questions and identified two classes of cases in

which the AEDPA permitted federal courts to grant habeas relief

to state prisoners. Taylor, 120 S. Ct. at 1519. This taxonomy

is essentially the same as the two-step pavane limned in

O'Brien: the first category embraces cases in which a state

court decision directly contravenes Supreme Court precedent, and

the second embraces cases in which a state court decision,

although not "contrary to" relevant Supreme Court precedent,

nonetheless constitutes an "unreasonable application" of

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relevant Supreme Court precedent. Given this parallelism, we

conclude that O'Brien correctly anticipated Taylor, and thus

remains good law.

Taylor and O'Brien, read together, shed some helpful

light on how section 2254(d)(1) operates. For example, in

discussing when a state court decision would be contrary to

clearly established Supreme Court case law, the Taylor Court

noted that "[a] state-court decision will certainly be contrary

to our clearly established precedent if the state court applies

a rule that contradicts the governing law set forth in our

cases." 120 S. Ct. at 1519. The Court added that "[a] state-

court decision will also be contrary to this Court's clearly

established precedent if the state court confronts a set of

facts that are materially indistinguishable from a decision of

this Court and nevertheless arrives at a result different from

our precedent." Id. at 1519-20. These statements dovetail with

our earlier observation that the "contrary to" prong of section

2254(d)(1) imposes a burden on the petitioner to "show that

Supreme Court precedent requires an outcome contrary to that

reached by the relevant state court." O'Brien, 145 F.3d at 24-

25 (emphasis supplied). Explicating what was meant by this

requirement, we stated that "the key inquiry . . . is whether a

Supreme Court rule — by virtue of its factual similarity (though

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not necessarily identicality) or its distillation of general

federal law precepts into a channeled mode of analysis

specifically intended for application to variant factual

situations — can fairly be said to require a particular result

in a particular case." Id. at 25.

Taylor and O'Brien also inform the second prong of the

model established by section 2254(d)(1). They teach that

federal habeas relief may lie in favor of a state prisoner when

a state court correctly identifies the applicable federal rule

but applies it in an unreasonable manner to the facts of a

particular case. Taylor, 120 S. Ct. at 1520. "This reduces to

a question of whether the state court's derivation of a case-

specific rule from the Court's generally relevant jurisprudence

appears objectively reasonable." O'Brien, 145 F.3d at 25;

accord Taylor, 120 S. Ct. at 1521-22 (holding that the

assessment of unreasonableness demands an objective analysis).

Because this objective standard is broader than the "reasonable

jurist" standard, Taylor, 120 S. Ct. at 1521-22; O'Brien, 145

F.3d at 25 n.7, the mere fact that some fair-minded judges might

find a particular outcome unreasonable does not warrant relief.

Nor does the existence of error, in and of itself: there is,

for this purpose, an important distinction between unreasonable

applications and incorrect applications. See Taylor, 120 S. Ct.

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at 1522 ("[A] federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that

application must also be unreasonable."); O'Brien, 145 F.3d at

25 (recognizing that the "unreasonable application" clause does

not allow a federal court to grant habeas relief simply because

it disagrees with the state court's decision or because it would

have reached an opposite conclusion). In the last analysis, a

state court decision is objectively unreasonable only if it

falls "outside the universe of plausible, credible outcomes."

O'Brien, 145 F.3d at 25.

III. APPLICATION OF THE HABEAS STANDARD

We turn now from the general to the specific. The

Constitution requires that the prosecution, in a criminal case,

prove the defendant's guilt beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 364 (1970). Here, the petitioner claims

that the state trial judge's repeated references to proof to a

"moral certainty" left in the jurors' minds an indelible

impression that the prosecution's burden of proof was something

less than beyond a reasonable doubt. We examine this premise,

subject to the stark limitations imposed by the AEDPA.

A

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 Before Congress enacted the AEDPA, a federal court's

exercise of habeas corpus jurisdiction did not require that it

pay any special heed to the underlying state court decision.

E.g., Brown v. Allen, 344 U.S. 443, 458 (1953) (observing that

the habeas court treats the state court decision as nothing more

than "the conclusion of a court of last resort of another

jurisdiction"). The AEDPA amendments alter the legal landscape,

placing the state court's decision at center stage in a federal

habeas proceeding. O'Brien, 145 F.3d at 20. "Only if that

decision deviates from the paradigm described in section 2254(d)

can a habeas court grant relief." Id.

In this instance, the relevant state court decision is

the state superior court's denial of post-conviction relief. 1

Consequently, we focus not on the adequacy of the jury

instructions per se, but, rather, on the reasonableness of the

state court decision upholding those instructions.

B

We inquire, first, whether the relevant state court

decision is contrary to existing federal law as enunciated by

1Although a single justice of the SJC, acting pursuant to
Mass. Gen. Laws ch. 278, § 33E, effectively upheld this ruling
by denying leave to appeal, he did so principally by embracing
"the thorough analysis of the issues made by the Superior Court
judge . . . ."

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the Supreme Court. Taylor, 120 S. Ct. at 1519; O'Brien, 145

F.3d at 24. Here, we answer that inquiry in the negative.

The Supreme Court has directly addressed the use of the

phrase "moral certainty" in jury instructions. E.g., Victor v.

Nebraska, 511 U.S. 1, 10-17, 21-22 (1994); Cage v. Louisiana,

498 U.S. 39, 40-41 (1990), overruled on other grounds by Estelle

v. McGuire, 502 U.S. 62 (1991). But the standard laid out by

these cases is open-ended and its application requires

perscrutation of the specific facts of each particular case.

See Victor, 511 U.S. at 6 ("The constitutional question in the

present cases, therefore, is whether there is a reasonable

likelihood that the jury understood the instructions to allow

conviction based on proof insufficient to meet the [reasonable

doubt] standard."). For this reason, the state superior court

decision can run aground on section 2254(d)(1)'s "contrary to"

prong only if that court either applied the wrong law or reached

a conclusion opposite to that reached by the Supreme Court on

nearly identical facts. See Taylor, 120 S. Ct. at 1519-20;

O'Brien, 145 F.3d at 25.

Neither situation obtains here. The state superior

court identified the appropriate Supreme Court case law —

notably, Victor and Cage — and recognized its relevance.

Moreover, the state trial judge's jury instructions were quite

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different from those that the Supreme Court previously had

considered.

To be sure, the statute's "contrary to" tine may pierce

a state court decision if the latter is "diametrically different

from, opposite in character or nature from, or mutually opposed

to" Supreme Court precedent. Taylor, 120 S. Ct. at 1520. Here,

however, none of these characterizations fits. A state court

decision that applies the correct legal rule but reaches an

independent outcome on different facts cannot be deemed to run

at cross purposes to Supreme Court precedent. Id. Accordingly,

section 2254(d)(1)'s "contrary to" prong cannot be used here to

spearhead habeas relief.

C

This brings us to the second step of the requisite

analysis: whether the state court decision constitutes an

unreasonable application of clearly established Supreme Court

case law. Taylor, 120 S. Ct. at 1519; O'Brien, 145 F.3d at 24-

25. For purposes of this inquiry, a federal court operates

within a closely circumscribed sphere. Its determination cannot

be based simply on whether the state court reached the correct

result when applying federal law. See O'Brien, 145 F.2d at 25

("We think it is pellucid . . . that the 'unreasonable

application' clause does not empower a habeas court to grant the

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writ merely because it disagrees with the state court's

decision, or because, left to its own devices, it would have

reached a different result."). Rather, the federal habeas court

must determine whether the state court's application of the law

to the facts, as evidenced by the conclusion that it reached,

was objectively unreasonable. Taylor, 120 S. Ct. at 1521-22.

Measured by this yardstick, we believe that the state court's

decision, though problematic, is not "so offensive to existing

precedent, so devoid of record support, or so arbitrary, as to

indicate that it is outside the universe of plausible, credible

outcomes." O'Brien, 145 F.3d at 25 (footnote omitted).

As the state superior court recognized, the salient

Supreme Court precedents in this situation are Victor and Cage.

Both of these cases dealt disapprovingly with the use of the

phrase "moral certainty" in jury instructions on reasonable

doubt. The cases, however, reached different results. The Cage

Court found the particular instructions used there misleading,

and granted the writ. Cage, 498 U.S. at 41. In contrast, the

Victor Court found a different set of jury instructions adequate

notwithstanding the trial judge's references to moral certainty.

Victor, 511 U.S. at 17, 22.

The lesson of these cases is that context is all-

important and that careful scrutiny must be afforded to the

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setting in which "moral certainty" references appear. See id.

at 16 (explaining that "moral certainty language cannot be

sequestered from its surroundings"). Using this mode of

analysis, the habeas court must determine whether the remainder

of the jury instructions provide sufficient cover to assure that

the "moral certainty" language did not impermissibly dilute the

"beyond a reasonable doubt" standard. See id. at 21.

A side-by-side comparison of Cage and Victor

illustrates this point. In Cage, the trial judge's very brief

charge described "reasonable doubt" as a "grave uncertainty" and

an "actual substantial doubt," and led the jury to believe that

it needed to find the defendant guilty to a "moral certainty."

Cage, 498 U.S. at 40. The Court found this unacceptable

because:

[T]he words 'substantial' and 'grave,' as
they are commonly understood, suggest a
higher degree of doubt than is required for
acquittal under the reasonable-doubt
standard. When those statements are then
considered with the reference to 'moral
certainty,' rather than evidentiary
certainty, it becomes clear that a
reasonable juror could have interpreted the
instruction to allow a finding of guilt
based on a degree of proof below that
required by the Due Process Clause.

Id. at 41 (footnote omitted). In other words, nothing in the

instruction lent a constitutionally appropriate gloss to moral

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certainty. Victor, 511 U.S. at 16 (explaining the holding in

Cage).

In contradistinction, the jury instructions in Victor

were not so sparse. The Court described the situation as

follows:

The jury in [this] case was told that a
reasonable doubt is 'that state of the case
which, after the entire comparison and
consideration of all the evidence, leaves
the minds of the jurors in that condition
that they cannot say they feel an abiding
conviction, to a moral certainty, of the
truth of the charge.' The instruction thus
explicitly told the jurors that their
conclusion had to be based on the evidence
in the case. Other instructions reinforced
this message. . . .

We do not think it reasonably likely that
the jury understood the words 'moral
certainty' either as suggesting a standard
of proof lower than due process requires or
as allowing conviction on factors other than
the government's proof.

Victor, 511 U.S. at 16 (internal citations omitted; emphasis in

original). Accordingly, the Court concluded that the

discouraged phrase ("moral certainty") had been given a concrete

meaning not inconsistent with proof beyond a reasonable doubt,

and thus did not undermine the convictions. Id. at 16-17, 22.

Against this backdrop, we focus the lens of our inquiry

on the state superior court's decision and ask whether the

court's application of the analytic framework dictated by the

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relevant Supreme Court precedents was objectively unreasonable.

See Taylor, 120 S. Ct. at 1522; O'Brien, 145 F.3d at 25.

The state superior court plainly understood the primacy

of context. In its rescript denying the petitioner's post-

conviction motion for a new trial, the court carefully

considered the trial judge's jury instructions as a whole.

Citing cases such as Commonwealth v. Gagliardi, 638 N.E.2d 20,

25 (Mass. 1994), the court acknowledged that employment of the

phrase "moral certainty" had come under fire in recent years.

St. Ct. Op. at 6-7. It proceeded to recount the Cage Court's

reasoning, see 498 U.S. at 40-41, concentrating on why the

Supreme Court found the trial judge's reference to "moral

certainty" misleading. St. Ct. Op. at 7-8.

The court followed this exercise by discussing the

concept of proof beyond a reasonable doubt. Id. at 11-12. It

then undertook a painstaking inquiry into the use of the phrase

"moral certainty" in the jury instructions given in this case

(the pertinent portions of which are set forth in an appendix to

this opinion). The court had noted early on that the trial

judge had used the term no fewer than fourteen times. Id. at 9.

It now catalogued and dissected each reference, and reviewed the

context to determine whether in practical effect the reference

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tended to erode the trial judge's statement of the

constitutionally required burden of proof. Id. at 10-16.

In its careful examination, the court plodded phrase

by phrase through the instructions. It found support at each

step along the way for its ultimate conclusion that the

instructions, though containing several references to the

discouraged phrase ("moral certainty"), did not dilute the

standard of proof below a reasonable doubt. We need not recite

book and verse as to each perception, but, rather, offer a few

examples that convey the flavor of the examination.

The court acknowledged that the trial judge had begun

by defining "proof beyond a reasonable doubt" as "proof to a

moral certainty," a standard instruction theretofore approved by

the SJC. E.g., Gagliardi, 638 N.E.2d at 24 n.3; Commonwealth v.

Little, 424 N.E.2d 504, 506-07 & n.4 (Mass. 1981). But the

judge did not dilute the Commonwealth's burden. Indeed, in most

instances where "moral certainty" references appeared, an

explanatory statement appeared in the immediate vicinity, thus

providing a clear (and constitutionally correct) explication of

the level of guilt required. E.g., St. Ct. Op. at 12 (equating

"moral certainty" with a statement that "any reasonable doubt of

the existence of any fact . . . which is essential to the proof

of guilt of this defendant requires acquittal"). In this way,

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the judge reminded the jury that its decision had to be based on

the evidence in the case — a concept that he reinforced at the

end of the reasonable doubt instruction when he emphasized the

need for the jury to find guilt beyond a reasonable doubt, based

on the facts. Id. at 13.

The superior court's confidence in the efficacy of

these reminders was bolstered by the trial judge's inclusion of

similar redeeming statements in other portions of the charge.

Id. at 14-15. The court ascertained that each individual

reference met the constitutional standard, and that the

references, collectively, met the constitutional standard. Id.

at 15-16. In this regard, it specifically found that the valid

definition of proof beyond a reasonable doubt, contained early

in the charge, when combined with the trial judge's repeated

references to the appropriate standard in both his summary of

the evidence and his recital of the law, foreclosed any possible

confusion in the jurors' minds. Id. Finally, the court

concluded that "the charge, taken as a whole, could not have led

a reasonable juror to apply the wrong standard or use the

instructions incorrectly." Id. at 16.

To be sure, it is possible to argue the accuracy of

this conclusion. Indeed, had the case come before us on direct

appeal, we might well have decided it otherwise. After all, the

references to "moral certainty" were numerous, and the risk of

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error seems readily evident. The test, however, is not whether

we think that the state court reached the right result. Taylor,

120 S. Ct. at 1522; O'Brien, 145 F.3d at 25. When assessing a

state prisoner's conviction under the AEDPA amendments, we can

ask only whether the specific conclusion that the state court

drew from its contextual examination was clearly outside the

realm of reasonable outcomes. Taylor, 120 S. Ct. at 1522;

O'Brien, 145 F.3d at 25. In this case, it was not: the state

court's conclusion constitutes an objectively reasonable (though

not inevitable) application of the relevant Supreme Court

precedents.

The proof of the pudding is that the state superior

court's approach drew heavily upon clearly established Supreme

Court case law. E.g., Victor, 511 U.S. at 10-17, 21-22; Cage,

498 U.S. at 40-41. It followed the method of those decisions

meticulously. Any argument over the correctness of the state

court's ultimate conclusion would be one of degree, calling for

a choice between credible, although mutually opposed, views.

That ends our inquiry. When there are two plausible outcomes

that can result from a reasoned application of clearly

established Supreme Court precedent to a particular set of

facts, the state court's choice between those outcomes, whether

right or wrong, cannot constitute a basis for habeas relief

under the second branch of section 2254(d)(1). Accordingly, the

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district court did not err in denying the application for a

writ.

IV. CONCLUSION

We are not without empathy for the petitioner's

situation. Assisted by able counsel, he saw the Supreme Court's

emerging jurisprudence as a possible avenue to a new trial —

only to have Congress's adoption of a restrictive standard of

review for state prisoners' habeas applications transform that

avenue into a dead end. We can question the wisdom of the AEDPA

regime insofar as it pertains to habeas cases, but we cannot

question Congress's authority to adopt that regime. The state

superior court, in denying post-conviction relief, complied

therewith and rendered an objectively reasonable (if arguable)

decision. We are statutorily constrained to defer to that

decision, notwithstanding our misgivings about the correctness

vel non of the jury instructions. Under the AEDPA, we can go no

further.

Affirmed.

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 Appendix

(Excerpts from the state trial judge's reasonable doubt

instructions; references to "moral certainty" highlighted.)

What then is proof beyond a reasonable
doubt, you may ask. In all criminal cases
the defendant is entitled to have a verdict
of not guilty rendered unless the
Commonwealth proves to a degree of certainty
which is expressed by the phrase “beyond a
reasonable doubt,” the existence of a state
of facts that under the law constitutes the
defendant’s guilt of the crime charged.

Proof beyond a reasonable doubt, Mr.
Foreman, ladies and gentlemen of the jury,
means proof to a moral certainty. This does
not mean proof to a mathematically accurate
certainty, it means proof to a moral
certainty. Proof beyond a reasonable doubt
does not mean proof beyond all doubt, nor
does it mean proof beyond a whimsical or
fanciful doubt, nor does it mean proof
beyond all possibility of innocence. If the
rule of law were that proof beyond a
reasonable doubt meant proof beyond all
possibility of innocence, virtually all
criminals would go free and the
administration of justice in the Courts of
this Commonwealth and elsewhere would be
impossible. If an unreasonable doubt or
mere possibility of innocence should be
deemed enough to prevent conviction in this
or in any case, practically every criminal
would be free. Such a rule would be wholly
absurd.

A fact is proved beyond a reasonable
doubt when it is proved to a moral certainty

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as distinguished from an absolute or
mathematical certainty. When it is proved
to a certainty, that degree of certainty
that satisfies the judgment and conscience
of you ladies and gentlemen of the jury as
reasonable men and women and leaves in your
minds as reasonable men and women a settled
conviction of guilt, but if when all is said
and done there remains in the mind of you
jurors any reasonable doubt of the existence
of any fact or facts which is essential to
the proof of guilt of this defendant, the
defendant must have the benefit of it and he
cannot be found guilty upon the charge.

Now here is a definition of reasonable
doubt which was given one hundred twenty
years ago, and I shall read it to you.

It is not mere possible doubt, because
everything relating to human affairs and
depending upon moral evidence is open to
some possible or imaginary doubt. It is
that state of the case which, after entire
comparison and consideration of all the
evidence, leaves the minds of jurors in that
condition that they cannot say they feel an
abiding conviction to a moral certainty of
the truth of the charge. All presumptions
of law independent of evidence are in favor
of innocence, and every person is presumed
to be innocent until he is proven guilty.
If upon such proof there is reasonable doubt
remaining, the accused is entitled to the
benefit of it by an acquittal, for it is not
sufficient to establish a probability,
though a strong one, arising from the
doctrine of chance that the fact charged is
more likely to be true than the contrary,
but the evidence must establish the truth of
the fact to a reasonable and to a moral
certainty, a certainty that convinces and
directs the understanding and satisfies the
reason and the judgment of those who are
bound to act conscientiously upon it, a

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 certainty which you would like to have
reached, all of you, when you make a
determination of some great significance in
your own personal lives. That is the type
of certainty which you should reach, a moral
certainty.

You must ask yourselves, now, does the
evidence which you have heard here establish
beyond a reasonable doubt such facts as in
their turn show to the same degree of
certainty, that is to say, a moral certainty
that the defendant did unlawfully
participate in the taking of the life of
Andrew Fillios. If this is not shown, he is
to be acquitted. If it is shown, he is to
be convicted. The defendant’s right to hold
the Government to the strictest of proof is
an absolute right. No consideration of
public safety, no righteous indignation, no
atrocity of crime or zeal for the
suppression of crime can give to the Court
or to you jurors the reason to relax the
rule of law or to explain the evidence to
any conclusion not warranted by fair and
convincing forces. I should fail in my duty
if I did not with equal emphasis remind you
that the community is not safer if only the
rights of those charged with crime are
recognized and guarded. The right of the
Commonwealth to have a verdict commensurate
with its proof is as absolute and is as
sacred as the right of the defendant’s in
this case that, it shall not have more.

* * *

(Excerpts from the summary of the evidence and recital of the

law found in later portions of the jury instructions; references

to "moral certainty" highlighted.)

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 . . . the sole question for your
determination here is, have you been
convinced beyond a reasonable doubt that
[petitioner] participated with Adams in the
killing of Fillios. If you have a
reasonable doubt that he participated with
Adams, then you shall acquit him. If you
have been convinced to a moral certainty
that he participated with Adams in the
killing of Fillios, then you shall find him
guilty. . . . If the two acted together and
you are convinced of it beyond a reasonable
doubt, then you will find him guilty. If
you have a reasonable doubt that he
participated with Adams, then you will
acquit him.

. . . .

Now these pieces of testimony from
Adams, from [petitioner], and from [P]olice
[S]ergeant Scalese, and from the other
witnesses and all of them, Kelly, Cargianes,
the other witnesses whom you heard here, all
of this testimony you will consider in
determining this issue. Having considered
it all, you will give to it such weight as
you think it is entitled to have. The sole
question here is, have you been convinced
beyond a reasonable doubt, to a moral
certainty, that [petitioner] participated in
the commission of the crime . . . . If you
find and you are satisfied to a moral
certainty that he did, if you find and you
are satisfied to a moral certainty that he
did participate with Adams, [petitioner] on
the theory of concert of action must be
found guilty.

. . . If you have a reasonable doubt
as to [petitioner’s] participation, you will
acquit him. If you are convinced to a moral
certainty of his participation in the crime,
and therefore, of his guilt, you shall find
him guilty.

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. . . .

If after your consideration of all the
evidence there lurks in your minds’ eye a
reasonable doubt that [petitioner]
participated in the commission of the crime
of murder with Adams, then you shall find
him not guilty.

If, on the other hand, you have
reached a point in your unanimous minds’ eye
where you have been convinced to a moral
certainty, and beyond a reasonable doubt,
that [petitioner] did participate in the
commission of the crime, aided and abetted
by Adams or aiding and abetting Adams, then
you shall find him guilty.

. . . .

For emphasis I repeat: If you have
unanimously a reasonable doubt, you shall
acquit; and when the Clerk inquires of you,
Mr. Foreman, you shall respond “Not guilty.”
If, on the other hand, you have been
convinced to a moral certainty of guilt and
have determined the degree of murder, then,
Mr. Foreman, you shall answer with the
single word “guilty” . . . .

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