Taken From Courthouse News:

(CN) – Vacating the death sentence imposed against a convicted murderer, the Pennsylvania high court called it “shocking” that jurors were told that killing an unborn child is a capital offense.
Harold Murray IV was convicted in 2006 of three counts of first-degree murder with regard to the deaths of Shawne Mims, Jennifer Pennington and Pennington’s unborn child.
Hours before his death, Mims and an accomplice had robbed Murray and another man at gunpoint of their money, crack cocaine and cellphones. During the robbery, Pennington and another woman waited in the car. The group then checked into a hotel where they used the stolen drugs, drank tequila and had sex.
With help from a friend, Murray and the other robbery victim tried to track down Mims and Pennington. They broke into the home of Mims’ girlfriend with an AK-47 rifle, a revolver and a handgun, and eventually barricaded the woman and her children in a basement.
Murray later learned that Pennington was at a Wawa convenience store in King of Prussia, Pa., and forced her into the vehicle with his accomplices. Surveillance video shows that Pennington was clearly pregnant at the time.
Pennington helped her captors locate Mims at a second hotel. Murray and one of his friends found Mims naked and unarmed in his room, then shot him in the back.
The men then drove Pennington to Fairmont Park in Philadelphia, forced her out of the car, and shot her twice in the face. Pennington died at the scene, and her unborn child did not survive the attack.
Murray was sentenced to death for his role in the three murders, but the Pennsylvania Supreme Court vacated his sentence Friday for “egregious” error.
An experienced judge, two veteran defense attorneys and two skilled prosecutors all misinformed the sentencing jury that it could sentence Murray to death for the unborn child’s murder.
“The jury was instructed at length that the unborn child’s murder was a death-eligible conviction, which aggravating and mitigating circumstances were available for consideration for that murder, and how the jury should proceed in considering the proper penalty for that murder,” Justice Max Baer wrote for the court.
Pennsylvania law, however, does not allow death penalty consideration for the murder of a fetus.
“Respectfully, that the murder of Pennington’s unborn child was submitted to the jury as a death-eligible offense is shocking and calls into question the validity of the penalty phase as a whole,” Baer wrote.
The state had argued that the error was harmless because the jury would have considered the same evidence in deciding whether to sentence Murray to death for Pennington’s murder.
But the U.S. Supreme Court has ruled that capital cases must be submitted to the strictest scrutiny, according to the ruling.
Here, “we are presented with more than a substantial risk that the jury was misinformed; all agree that the jury was, in fact, explicitly misinformed,” Baer wrote. “The court charged the jury that it could return a sentence of death for the murder of Pennington’s unborn child, and we cannot be certain that this erroneous instruction did not play a role in the jury’s consideration of the death penalty for Pennington’s murder. We find obvious that this error implicates ‘the procedure by which the state imposes the death sentence,’ and therefore requires a new penalty hearing.”