For a better experience, click the Compatibility Mode icon above to turn off Compatibility Mode, which is only for viewing older websites.

U.S. Court of Appeals for the Third Circuit Hands Clinic Students a Victory

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

March 30, 2018

The U.S. Court of Appeals for the Third Circuit ruled in favor of a man represented by the Federal Litigation and Appeals Clinic in a case argued by students Ke Gang and Mischa Wheat.

Judges Luis Felipe Restrepo, Thomas L. Ambro and Richard Lowell Nygaard unanimously agreed with Gang and Wheat that Tony L. Bennett had been deprived of due process when a jury convicted him of first degree murder in 1992 after receiving erroneous instructions.

The court concluded that the jury received instructions that incorrectly led them to believe that a defendant could be found guilty of murder, based on an accomplice’s intent. The decision means that Bennett is eligible for a new trial.

“Mr. Bennett has been wrongly subjected to a sentence of life without the possibility of parole,” said Professor Richard Frankel, the director of the Clinic. “We are pleased that the Third Circuit recognized that his conviction violated his constitutional rights and provided him a remedy. Ke and Mischa believed in Mr. Bennett’s case from the start and worked tirelessly in their advocacy on his behalf.”

Although some testimony at trial indicated that Bennett had supplied a gun that was used in a jewelry store robbery, he was in a getaway car when an accomplice entered the store and fatally shot a clerk.

Gang and Wheat, who were 2Ls when they appeared before the court in 2017, argued that a first-degree murder conviction requires a jury to find specific intent to kill on a defendant’s part, but that the jurors in Bennett’s trial received instructions that allowed them to convict him of murder even if he only intended a robbery.

In its ruling, the circuit court concurred, noting that the trial court repeatedly instructed that the jury could convict Bennett of first-degree murder without finding that he possessed specific intent to kill.

The case had 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.

The court acknowledged and thanked the clinic “for the skillful pro bono advocacy provided to Mr. Bennett in this appeal.”

Wheat said his classmate, Gang, deserved tremendous credit for convincing the judges that a de novo review of the case was appropriate, creating an opening for them to consider his arguments on the violation of due process.

“The case would have been much more difficult, if Ke hadn’t convinced them,” Wheat said, adding that he is greatly relieved that Bennett may finally have a chance to leave prison 25 years after having been convicted of first-degree murder “absent any evidence that he wanted anyone to be hurt.”

Because the court’s ruling is precedential, it provides future petitioners with a holding upon which they can rely, which Wheat called “a second victory.”

Gang and Wheat are both editors of Drexel Law Review. Gang is a Global JD student.