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Students Set to Argue Criminal Case before U.S. Court of Appeals for the Third Circuit

Ke Gang and Mischa Wheat, both '18, win case in Third Circuit

May 04, 2017

Two students in the Appellate Litigation Clinic are scheduled to argue a habeas corpus appeal before the U.S. Court of Appeals for the Third Circuit on May 9.

Students Ke Gang and Mischa Wheat will argue that a man convicted of first-degree murder in 1992 was denied due process when the jury received unclear instructions.

The man, who was accused of waiting in the getaway car in a robbery that involved a fatal shooting, was convicted of conspiracy, robbery and first-degree murder, said Professor Richard Frankel, who directs the clinic and supervises the students’ work.

A conviction on a conspiracy charge ordinarily means that a defendant is guilty of actions committed by co-conspirators, however, a first-degree murder conviction requires a jury to find that a defendant specifically intended to kill, whether or not co-conspirators had that intention, Frankel explained.

In briefs to the Third Circuit, Gang and Wheat argued that jurors were not given clear instructions on this point, enabling them to convict their client of first-degree murder without determining that he, rather than one of his co-conspirators, specifically intended to kill. 

“The instructions were confusing, because they specifically suggested that a defendant could be found guilty for the shooting, whether or not he intended for a shooting to occur,” Frankel said. 

The case already has a lengthy appellate history.  After a state judge vacated the man’s murder conviction, the District Attorney’s Office appealed to the Superior Court, which agreed to overturn the conviction.  The District Attorney’s Office appealed that ruling to the Supreme Court of Pennsylvania, which reversed the appellate court rulings.

Gang and Wheat have had an unexpected degree of control over the case.

"Professor Frankel is a constant source of support and guidance, but we've gotten to be in the driver's seat for this appeal," Wheat said, adding that the clinic has allowed the students to develop a sense of responsibility to deliver a good outcome for their client. "It's distinctly different from prepping for a final."

Gang, a native of China, is pursuing a JD through the Global Access program for internationally trained attorneys.  She and Wheat are editors of the Drexel Law Review.

Update: The Third Circuit posted a video feed of the oral arguments, which can be viewed at this link