[Ppnews] Supreme Court Might Reinstate Death Penalty for Mumia

Political Prisoner News ppnews at freedomarchives.org
Mon Oct 12 10:35:56 EDT 2009


We have been saying that there is a strong possibility that the US 
Supreme Court will reinstate the Death Penalty for Mumia.  This while 
the leading candidate running to replace Lynne Abraham as Attorney 
General is calling for Mumia's execution and a new hit piece film by 
Tigre Hill "The Barrel of a Gun" is scheduled to be released around 
December 9th, the 28th anniversary of Mumia's arrest and the 
beginning of the subsequent conspiracy to have him executed.  Now 
this article.  Please pay close attention and stay tuned for our 
messages.  -- Suzanne Ross, for the Free Mumia Abu-Jamal Coalition

This is most alarming news:

<http://www.law.com/jsp/article.jsp?id=1202434453364&Ohio_Death_Penalty_Case_Might_Determine_AbuJamals_Fate>http://www.law.com/jsp/article.jsp?id=1202434453364&Ohio_Death_Penalty_Case_Might_Determine_AbuJamals_Fate



Ohio Death Penalty Case Might Determine Abu-Jamal's Fate

Shannon P. Duffy
The Legal Intelligencer
October 12, 2009

Lawyers for convicted cop-killer Mumia Abu-Jamal will be watching 
closely on Tuesday when the U.S. Supreme Court takes up an Ohio death 
penalty case because its outcome may very well decide whether 
Abu-Jamal's death sentence will be reinstated.

In April, Abu-Jamal lost his final appeal seeking a new trial for the 
December 1981 murder of Philadelphia Police Officer Daniel Faulkner 
when the justices 
<http://www.law.com/jsp/article.jsp?id=1202429709644>refused to take 
up the issue of whether blacks were unfairly excluded from the 
<http://www.law.com/jsp/article.jsp?id=1202429709644>jury.

But, at the time, the justices took no action on a companion petition 
filed by the Philadelphia district attorney's office demanding 
reinstatement of Abu-Jamal's death sentence despite having discussed 
it weeks before.

Now it appears certain that the high court has decided to hold the 
Philadelphia prosecutors' petition in abeyance pending the outcome of 
Smith v. Spisak -- an Ohio case that raises strikingly similar issues 
to those in Abu-Jamal's case.

If the prosecutors in that case are successful and win reinstatement 
of the death sentence imposed on Frank G. Spisak, the justices may 
then see no need to take up Abu-Jamal's case.

Instead, at that point, it's likely that the justices would simply 
issue a one-page order in Abu-Jamal's case that would summarily 
reverse the decision by the 3rd U.S. Circuit Court of Appeals and 
order the appellate court to reconsider whether Abu-Jamal's death 
sentence should be reinstated.

Why is Abu-Jamal's case so similar to Spisak's? Both were on death 
row for notorious murders, but both won rulings in federal court that 
granted them partial new trials limited to the penalty phase.

In both cases, the federal courts' decisions to overturn the death 
sentences hinged on 
<http://supreme.justia.com/us/486/367/case.html>Mills v. Maryland -- 
a 1988 U.S. Supreme Court decision that governs how juries should 
deliberate during the penalty phase of a capital trial.

The Mills ruling struck down a Maryland statute that said juries in 
capital cases must be unanimous on any aggravating or mitigating 
factor. Voting 5-4, the justices declared that unanimity was properly 
required for any aggravating factor, but that mitigating factors -- 
those that weigh against imposing a death sentence -- must be handled 
more liberally, with each juror free to find on his or her own.

Since then, Mills has proven to be a powerful tool for defense 
lawyers aiming to overturn death sentences in numerous other states.

The question now before the courts is whether Mills truly requires 
that death sentences in other states be overturned if the juries in 
those states might have been confused by faulty instructions or 
verdict forms and led to believe that mitigating factors require unanimity.

Perhaps even more important to the justices is a corollary question 
of federalism: Is it fair for the federal courts to overturn a state 
court's decision on how to interpretMills by imposing its own 
interpretation that extends Mills beyond its original scope?

It's possible that the justices will provide the answers to those 
questions in Spisak's case that will be immediately applied to 
Abu-Jamal's case -- with Abu-Jamal and his lawyers forced to simply 
watch and wait until that happens.

Spisak, 57, was sentenced to death in 1983 for a killing spree at 
Cleveland State University after a monthlong trial that reportedly 
included testimony that he was a neo-Nazi and cross-dresser.

According to briefs in the case, Spisak killed Horace T. Rickerson, 
Timothy Sheehan and Brian Warford and also shot at John Hardaway and 
Coletta Dartt. Hardaway was shot seven times but survived and 
identified Spisak as the shooter.

After his arrest, Spisak confessed to all five shootings and declared 
that his actions were motivated by his hatred of gay people, blacks and Jews.

As Ohio prosecutors argued in their Supreme Court brief, Spisak 
"proudly testified at length as to his neo-Nazi beliefs and told the 
jury that those beliefs had motivated the murders."

In 2006, the 6th Circuit overturned Spisak's death sentence based on 
a Mills violation as well as findings that his lawyers were 
ineffective and had "demonized" Spisak during the trial.

The Supreme Court overturned the ruling and ordered the 6th Circuit 
to study the case again in light of two other decisions by the high court.

But the 6th Circuit in 2008 reinstated its prior decisions, finding 
they were correct.

Now the Supreme Court has taken the Spisak case up a second time to 
tackle the question of whether the 6th Circuit failed to give proper 
deference to the Ohio state courts "when it applied Mills v. Maryland 
to resolve ... questions that were not decided or addressed in Mills."

Abu-Jamal's lead lawyer, Robert R. Bryan of San Francisco, said in 
April that the issue in Spisak is "very similar" to the issue raised 
in the prosecutors' petition in Abu-Jamal's case.

"The question we've got," Bryan said at the time, "is whether we'll 
be left dangling in the wind until Spisak is decided."

In the prosecutor's petition in Abu-Jamal's case, Deputy District 
Attorney Ronald Eisenberg argued that the 3rd Circuit failed to give 
the proper deference to the rulings of the Pennsylvania Supreme Court 
which had addressed the Mills issue in 1995 and -- relying on a 3rd 
Circuit decision -- concluded that the Pennsylvania jury instructions 
did not run afoul of Mills.

But by the time Abu-Jamal's case made its way into the federal 
courts, the 3rd Circuit "had changed its mind," Eisenberg argued, 
with a series of decisions that said the Pennsylvania courts' 
analysis of Mills was not only wrong but unreasonable.

Eisenberg urged the justices to see a difference between Mills -- 
where the Maryland jury was specifically instructed that it had to be 
unanimous on mitigating factors -- and the situation in states like 
Pennsylvania, where the issue is much subtler and hinges on 
speculation by the federal courts that the jury might have been confused.

"The difficulty with the 3rd Circuit's 'risk of confusion' view is 
that Mills, quite simply, stated no such rule," Eisenberg argues.



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