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Legal Update December 11, 2004 meeting in New York City <br><br>
(Reviewed by Attorney Robert R. Bryan) <br><br>
Mumia’s case is simultaneously being heard in two different courts <br>
presently: the United States Court of Appeals for the Third Circuit
<br>
(appellate court) and the Pennsylvania State Court of Common Pleas <br>
(trial court), both of which sit in Philadelphia. <br><br>
The Third Circuit (the appellate court) <br><br>
Procedure <br><br>
In July 2004, both Robert Bryan and the state of Pennsylvania submitted
<br>
briefs on the effect of the 06-24-04 United States Supreme Court <br>
decision in Beard v. Banks on Mumia’s case. On 07-29-04, Robert filed a
<br>
memorandum of law on the affect of Banks for Mumia, and requested a stay
<br>
of the proceedings in this matter pending the outcome of the issues
<br>
simultaneously being litigated in the Pennsylvania trial court before
<br>
Judge Pamela Dembe. On 10-19-04, the appellate court entered an order
<br>
denying the 07-29-04 request from Robert Bryan for a stay of the <br>
proceedings. What this means is that the issues currently pending before
<br>
the appellate court are moving forward. The next step involves putting
<br>
these issues on what is called a “briefing schedule,” which has yet to
<br>
be done by the appellate court. In other words, Robert has yet to <br>
receive notice from the appellate court as to when briefs will be due on
<br>
the issues currently before it. <br><br>
Robert initially filed for a stay of these proceedings because of the
<br>
active litigation pending before Judge Dembe in the trial court in <br>
Philadelphia, and argued against having to litigate one case in two
<br>
courts at the same time. The matters before Judge Dembe cannot be <br>
resolved by the Third Circuit, but must first be addressed at the trial
<br>
level in the state system. <br><br>
Additionally, Robert Bryan is currently working on a brief to be filed
<br>
with this court requesting that additional issues be certified for <br>
appeal from district court Judge Yohn’s 2001 habeas decision, which
<br>
certified only one claim for relief: racial bias in jury selection, also
<br>
known as the Batson claim. Mumia’s former attorneys filed the original
<br>
motion on this issue, which Robert plans to supplement, requesting that
<br>
additional issues be certified on appeal to the appellate court. What
<br>
are the possible outcomes? There are four possibilities: the Third <br>
Circuit could (1) deny this request outright, (2) only allow a few of
<br>
the 29 issues raised by Mumia’s writ for habeas corpus, (3) send the
<br>
case back to Judge William Yohn to apply the standard set out in <br>
Miller-El (see below), or (4) wait for Mumia’s Batson issue to be <br>
resolved before moving forward on this one. <br><br>
More immediately, Robert plans to file a motion for remand back down to
<br>
the district court on the issues raised by Terri Maurer-Carter’s <br>
affidavit. Terri Maurer-Carter is the court reporter who overheard trial
<br>
judge Albert Sabo—who presided over Mumia’s 1982 “trial,” and 1995,
<br>
1996, and 1997 Post-Conviction Relief Act (PCRA) appellate hearings in
<br>
Philadelphia—say: “Yeah, and I’m going to help ‘em [the prosecution] fry
<br>
the nigger.” <br><br>
<br>
Issues <br><br>
There are two issues before the appellate court, which will be explained
<br>
below. <br><br>
First, what did the United States Supreme Court decide in Beard v. <br>
Banks, and how does that affect Mumia? <br><br>
In July 2004, the appellate court allowed both Robert Bryan and the
<br>
state of Pennsylvania to submit briefs on the affect of Banks on Mumia’s
<br>
case. The issue was whether Mumia’s case was affected by the recent
<br>
United States Supreme Court decision in Beard v. Banks. George Banks was
<br>
sentenced to death in 1982. After his state appeals were exhausted, he
<br>
sought habeas relief in federal district court and was denied. On appeal
<br>
to the Third Circuit Court of Appeals, Banks’ death sentence was found
<br>
to be unconstitutional, and the decision of the district court was <br>
reversed. The appellate court held that jury instructions during Banks’
<br>
sentencing led jurors to believe they could not vote against the death
<br>
penalty unless they all agreed on mitigating evidence—evidence that
<br>
would have inclined them not to vote for a death sentence. The appellate
<br>
court reasoned that these jury instructions violated the United States
<br>
Supreme Court's 1988 ruling in Mills v. Maryland. <br><br>
However, the Third Circuit did not decide whether the rule of Mills was
<br>
retroactive. In other words, could Banks benefit from the United States
<br>
Supreme Court's 1988 decision in Mills where his conviction became final
<br>
in 1987? Thus, when Banks’ case was next brought before the United <br>
States Supreme Court on appeal, the Court sent the case back down to the
<br>
Third Circuit to decide this issue. The appellate court then decided
<br>
that the rule created by the Supreme Court in Mills was retroactive and
<br>
that Banks could benefit. The case was again appealed to the Supreme
<br>
Court and on 06-24-04, the United States Supreme Court reversed the
<br>
decision of the Third Circuit and declared that the rule of law created
<br>
in Mills was not retroactive. In a 5-to-4 decision written by Justice
<br>
Clarence Thomas, the Court found that the rule announced in Mills—that
<br>
sentencing schemes could not prevent jurors from considering mitigating
<br>
evidence that had not been accepted unanimously when deciding whether to
<br>
apply the death penalty—was a new rule of law that was not a “watershed
<br>
rule of criminal procedure implicating the fundamental fairness and
<br>
accuracy of the criminal proceeding.” Finding that the rule of Mills was
<br>
not a “watershed rule,” the United States Supreme Court said that Mills
<br>
could not be applied retroactively and that Banks’ conviction was <br>
constitutional. <br><br>
What does this mean? Basically, it means that a “Mills challenge” to a
<br>
death sentence is only applicable where the sentencing relief sought is
<br>
for a person whose conviction became final after the rule of Mills was
<br>
decided in 1988. Seemingly, the Court has said that relief is available
<br>
to those whose convictions post-date Mills, creating what is called in
<br>
the law a “bright line rule.” Robert Bryan argued in his brief that
<br>
Mumia benefits from the rule of Mills because his conviction became
<br>
final in 1990. The state of Pennsylvania has argued that Mumia should
<br>
not get the benefit of Mills, despite this seemingly bright line rule,
<br>
and there have been several exchanges back and forth (one as recent as
<br>
10-31-04) through the filing of papers with the appellate court on this
<br>
issue. This matter is still pending. <br><br>
If Mumia wins on this issue, that he does get the benefit of Mills, his
<br>
case will go back to the trial level in the Pennsylvania Court of Common
<br>
Pleas. The state of Pennsylvania will have two choices, either (1) <br>
sentence Mumia to life imprisonment, or (2) grant Mumia a full jury
<br>
trial on the issue of whether he should be sentenced to life <br>
imprisonment or death. A full jury trial, or penalty-phase hearing,
<br>
means that Mumia is back to 1982 in terms of the issue of sentencing.
<br>
The state of Pennsylvania will put on evidence of guilt and aggravation
<br>
to argue for a death sentence. Robert Bryan will then be able to put on
<br>
evidence of innocence and mitigation. However, the only decision the
<br>
jury can make should there be a new penalty-phase hearing is life <br>
imprisonment or death. If Mumia loses, then the state of Pennsylvania
<br>
can sign another death warrant, side-stepping Yohn’s 2001 habeas <br>
decision. <br><br>
However, there still remains another issue pending before the appellate
<br>
court: the issue of jury selection, Mumia’s Batson claim. <br><br>
Second, what is Mumia’s Batson claim? The issue of racial bias in jury
<br>
selection, Mumia’s Batson claim, is also still pending before the <br>
appellate court. This issue was the only issue Judge Yohn allowed to be
<br>
appealed to the Third Circuit. In other words, this is the only <br>
guilt-phase appellate issue Yohn certified to go before the appellate
<br>
court. <br><br>
Recently, the United State Supreme Court heard arguments in the case of
<br>
Thomas Miller-El. A summary of that case from an article in the 12-05-04
<br>
NYT is as follows: <br><br>
“In an 8-to-1 decision last year, the Supreme Court instructed the <br>
appeals court to rethink its "dismissive and strained
interpretation" of <br>
the proof in the case, and to consider more seriously the substantial
<br>
evidence suggesting that prosecutors had systematically excluded blacks
<br>
from Mr. Miller-El's jury. Prosecutors used peremptory strikes to <br>
eliminate 10 out of 11 eligible black jurors, and they twice used a
<br>
local procedure called a jury shuffle to move blacks <br>
lower on the list of potential jurors, the decision said. The jury <br>
ultimately selected, which had one black member, convicted Mr. <br>
Miller-El, a black man who is now 53, of killing a clerk at a Holiday
<br>
Inn in Dallas in 1985. <br><br>
Instead of considering much of the evidence recited by the Supreme Court
<br>
majority, the appeals court engaged in something akin to plagiarism. In
<br>
February, it again rejected Mr. Miller-El's claims, in a decision that
<br>
reproduced, virtually verbatim and without attribution, several <br>
paragraphs from the sole dissenting opinion in last year's Supreme Court
<br>
decision, written by Justice Clarence Thomas.” <br><br>
According to Attorney Bryan, Miller-El deals with two issues: (1) racism
<br>
in jury selection and (2) the certification of appellate issues by <br>
federal district courts. Regarding racial bias in jury selection, should
<br>
the United States Supreme Court decide in favor of Miller-El on this
<br>
issue, Mumia’s position will be strengthened. Furthermore, there is also
<br>
good case law in the Third Circuit on this issue that should also <br>
support Mumia’s case. As for the certification of issues for appeal by
<br>
the lower federal courts, the Supreme Court appears to be saying that
<br>
these courts have too high a standard. In other words, they have made it
<br>
such that unless a petitioner can prove a certain win on appeal, then
<br>
that issue will not move forward. But if a certain win was apparent,
<br>
then there would be no need for an appeal because the district court
<br>
would have granted relief in the first instance, right? If Miller-El
<br>
succeeds on this issue, then Robert will be in a better position to
<br>
argue that Judge Yohn violated the proper standard and set the bar to
<br>
high for his certificates of appealability. <br><br>
If Mumia wins his Batson claim, there will be a completely new trial,
<br>
meaning there will be a new trial to decide guilt or innocence. If there
<br>
is an acquittal, Mumia will be released. If Mumia is found guilty, there
<br>
will be a penalty-phase hearing. <br><br>
<br>
The Pennsylvania State Court of Common Pleas (trial court) <br><br>
Procedure <br><br>
With regards to the newly discovered evidence presented to this court
<br>
through the affidavits of William Pate and Yvette Williams, Robert Bryan
<br>
has requested a hearing on the issues this evidence raises in relation
<br>
to Mumia’s conviction. Currently pending before Judge Dembe is a motion
<br>
to dismiss that was filed by the state of Pennsylvania. This new <br>
evidence has not been presented in federal court because the issues it
<br>
raises have not yet been resolved by Dembe in the state court system.
<br>
Robert Bryan has replied to this motion, and was forced by Dembe in
<br>
September 2004 to qualify himself to handle a capital case, despite his
<br>
years of experience in these matters. Robert has handled hundreds of
<br>
capital cases. Interestingly, there is a new state law in Pennsylvania
<br>
that requires defense attorneys handling capital litigation to <br>
demonstrate that they are qualified to handle such matters, but that law
<br>
was not in effect when Dembe challenged Robert’s ability to handle <br>
Mumia’s case. <br><br>
If Judge Dembe decides in Mumia’s favor, then he would get a new trial.
<br>
If Dembe denies relief, then Robert will appeal that decision through to
<br>
the Pennsylvania Supreme Court. It should be noted that if Dembe or the
<br>
Pennsylvania appellate courts grants Mumia relief, there will be no need
<br>
to remain in federal court—another reason why Robert has argued against
<br>
the lifting of the stay by the Third Circuit. <br><br>
Issues <br><br>
There are two issues before the trial court: the fabricated confession
<br>
of Pricilla Durham and that the false testimony the state of <br>
Pennsylvania put on during the trial through their key witness Cynthia
<br>
White. <br><br>
William Pate is the half-brother of Pricilla Durham. In his affidavit,
<br>
he says that Durham lied about the confession she claimed Mumia made at
<br>
the hospital on the night he was shot and Faulkner died. <br><br>
Yvette Williams said in her affidavit that Cynthia White was not present
<br>
during the shooting, but appeared sometime thereafter. <br><br>
(end) <br><br>
<br><br>
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