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<font size=3><br>
</font><font face="Verdana" size=3>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<br><br>
This is most alarming news:<br><br>
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<a href="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</a>
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<h1><b>Ohio Death Penalty Case Might Determine Abu-Jamal's
Fate</b></h1><font size=3>Shannon P. Duffy<br>
The Legal Intelligencer<br>
October 12, 2009<br><br>
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.<br><br>
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
<a href="http://www.law.com/jsp/article.jsp?id=1202429709644">refused to
take up the issue of whether blacks were unfairly excluded from the
</a><a href="http://www.law.com/jsp/article.jsp?id=1202429709644">jury</a>
.<br><br>
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.<br><br>
Now it appears certain that the high court has decided to hold the
Philadelphia prosecutors' petition in abeyance pending the outcome of
<i>Smith v. Spisak</i> -- an Ohio case that raises strikingly similar
issues to those in Abu-Jamal's case.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
In both cases, the federal courts' decisions to overturn the death
sentences hinged on
<a href="http://supreme.justia.com/us/486/367/case.html"><i>Mills v.
Maryland</a></i> -- a 1988 U.S. Supreme Court decision that governs how
juries should deliberate during the penalty phase of a capital
trial.<br><br>
The <i>Mills</i> 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.<br><br>
Since then, <i>Mills</i> has proven to be a powerful tool for defense
lawyers aiming to overturn death sentences in numerous other
states.<br><br>
The question now before the courts is whether <i>Mills</i> 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.<br><br>
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 interpret<i>Mills</i> by imposing its own
interpretation that extends <i>Mills</i> beyond its original
scope?<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
In 2006, the 6th Circuit overturned Spisak's death sentence based on a
<i>Mills</i> violation as well as findings that his lawyers were
ineffective and had "demonized" Spisak during the
trial.<br><br>
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.<br><br>
But the 6th Circuit in 2008 reinstated its prior decisions, finding they
were correct.<br><br>
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 <i>Mills v.
Maryland</i> to resolve ... questions that were not decided or addressed
in <i>Mills</i>."<br><br>
Abu-Jamal's lead lawyer, Robert R. Bryan of San Francisco, said in April
that the issue in <i>Spisak</i> is "very similar" to the issue
raised in the prosecutors' petition in Abu-Jamal's case.<br><br>
"The question we've got," Bryan said at the time, "is
whether we'll be left dangling in the wind until <i>Spisak</i> is
decided."<br><br>
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 <i>Mills</i> issue in 1995 and -- relying on a 3rd
Circuit decision -- concluded that the Pennsylvania jury instructions did
not run afoul of <i>Mills</i>.<br><br>
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
<i>Mills</i> was not only wrong but unreasonable.<br><br>
Eisenberg urged the justices to see a difference between <i>Mills</i> --
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.<br><br>
"The difficulty with the 3rd Circuit's 'risk of confusion' view is
that <i>Mills</i>, quite simply, stated no such rule," Eisenberg
argues.<br><br>
<br>
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