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!*Second Legal Intelligencer Article on Mumia's death penalty
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nattyreb
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Oct 15, 2009 13:03 PDT
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Please go to http://www.freemumia.com/meeting.html for info on 10/17 =20
EMERGENCY MEETING and make plans to attend!
=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D
From: Hans Bennett
-------------
=
http://www.law.com/jsp/article.jsp?id=3D1202434533155&Mumia_AbuJamals_Life=
_May_Hinge_on_Case_of_NeoNazi_Triple_Murderer
Mumia Abu-Jamal's Life May Hinge on Case of Neo-Nazi Triple Murderer
Shannon P. Duffy
10-14-2009
In a bizarre twist of fate, Mumia Abu-Jamal -- the convicted cop =20
killer whose quarter century on death row in Pennsylvania has made him =20=
internationally famous -- may find that his very life hinges on the =20
outcome of a U.S. Supreme Court argument on Tuesday in the case of a =20
neo-Nazi triple murderer who wore a Hitler mustache at trial as he =20
testified proudly about his desire to kill blacks, Jews and gays.
For Abu-Jamal, the stakes couldn't be higher. And the worst-case =20
scenario is that the decision in the Ohio case, Smith v. Spisak, could =20=
directly lead to a reinstatement of Abu-Jamal's death sentence.
But the justices may never reach the legal issues that Abu-Jamal =20
shares with Frank Spisak, the neo-Nazi convicted in that case. That =20
could happen if the high court instead focuses entirely on issues =20
relating to whether Spisak's defense lawyer at trial did such a poor =20
job in delivering his closing argument in the death penalty phase that =20=
his death sentence cannot stand.
If Spisak secures a victory purely on those grounds, the justices =20
might find it unnecessary to rule on a second issue -- whether the =20
jury instructions were confusing and faulty in Spisak's (and in Abu-=20
Jamal's) case.
Abu-Jamal's case has been in a kind of legal limbo since April. The =20
justices rejected Abu-Jamal's petition for certiorari -- effectively =20
upholding his conviction for the murder of Philadelphia Police Officer =20=
Daniel Faulkner -- but took no action on a petition from the =20
Philadelphia district attorney seeking to have his death sentence =20
reinstated.
It soon became clear that the justices were holding the Philadelphia =20
prosecutors' petition in abeyance because they had agreed to hear =20
Spisak's case, which raised a nearly identical issue.
Typically in such cases, the justices decide the first case and then, =20=
if necessary, issue summary reversals in the other pending cases that =20=
raised the same issue, sending them back to the lower courts to =20
reconsider in light of the high court's most recent pronouncement.
The issue that Abu-Jamal shares with Spisak is that both men won court =20=
rulings that overturned their death sentences based on Mills v. =20
Maryland, a 1988 U.S. Supreme Court decision that governs how juries =20
should deliberate during the penalty phase of a capital trial.
In Mills, the justices struck down a Maryland statute that said juries =20=
in capital cases must be unanimous on any aggravating or mitigating =20
factor.
The 5-4 decision declared that unanimity was properly required only =20
for "aggravating" factors that support death sentences, but that =20
mitigating factors -- those that weigh against imposing a death =20
sentence -- must be handled more liberally, with each juror free to =20
find on his or her own.
The question now before the courts is whether Mills requires that =20
death sentences in other states be overturned if the juries in those =20
states are misled by faulty instructions or verdict forms to believe =20
that mitigating factors require unanimity.
Perhaps even more important to the justices is a corollary question of =20=
federalism: Is it fair for the federal courts to overturn a state =20
court's decision on how to interpretMills by imposing its own =20
interpretation that extends Mills beyond its original scope?
A BIZARRE CLOSING ARGUMENT
But in Tuesday's argument, the justices spent most of their time =20
discussing Spisak's second argument -- that his trial lawyer had =20
delivered such a poor closing argument in the penalty phase that he =20
was effectively denied effective representation.
On that point, the justices were all over the map.
"Have you ever heard or read a defense summation that was more =20
derogatory of the defendant than the summation here?" Justice Samuel =20
A. Alito Jr. asked Ohio Attorney General Richard Cordray.
Cordray insisted that the trial lawyer had done the best he could with =20=
"the bed that was made by his client, who got on the stand for days on =20=
end and spewed his racist propaganda, made it clear that he was not =20
only unrepentant but was triumphant."
Alito pressed the point, saying the lawyer told the jury that Spisak =20
demanded no sympathy, and asked: "Isn't that exactly what he has to =20
appeal for in order not to get a death verdict, sympathy based on =20
mental illness, despite the horrific crimes that this person committed?"
Cordray disagreed, saying he considered the lawyer's speech to be part =20=
of a "coherent strategy" that was premised on telling the jury: "I can =20=
sense that you are not feeling sympathy for my client. Do what makes =20
you a humane people, what makes us proud as a people, and do not give =20=
the death penalty to a person who is sick, demented, twisted, as my =20
client has shown himself to be."
Justice Ruth Bader Ginsburg described the closing argument as =20
"disjointed" and said, "it goes off on tangents that have nothing to =20
do with the sentence. ... I mean, it really is quite a stream of =20
consciousness."
But Ginsburg also asked Spisak's lawyer, Michael Benza of Chagrin =20
Falls, Ohio: "Do you know of any case where ineffective assistance was =20=
found on the basis of a closing argument alone?"
Benza conceded he did not, but insisted that was only because Spisak's =20=
case was "such an outlier."
"I have been litigating capital cases since 1993. I have never seen a =20=
closing argument like this," Benza said.
A group of 20 law professors who teach trial advocacy filed an amicus =20=
brief supporting Spisak that urged the justices to declare that his =20
trial lawyer's speech "was deficient to such a level that it =20
constituted ineffective assistance of counsel."
But several justices seemed inclined to approve of the argument as a =20
sound strategy.
As Justice Stephen Breyer described it: "It makes sense logically to =20
say he has the worst defendant he has ever seen. He's murdered lots of =20=
people in cold blood. He gets up on the stand and says: =91I'm going to =20=
kill a lot more.' He sounds totally bonkers."
Breyer said he interpreted the trial lawyer's strategy as recognizing =20=
that his insanity defense had failed, but nonetheless arguing to the =20
jury, "We don't execute people who are crazy and this guy is crazy."
Justice Antonin Scalia went further, saying, "I thought it was a =20
brilliant closing argument. ... Have you ever conducted a capital case =20=
in which the defendant takes the stand with a Hitler mustache and says =20=
he's glad for what he's done and he will do it again? ... This was an =20=
extraordinary trial, and it seems to me that the technique that =20
counsel used to try to get mercy for this fellow was the best that =20
could have been done."
In telephone interviews Tuesday afternoon, lawyers on both sides of =20
the Abu-Jamal case expressed guarded optimism about the outcome in the =20=
Spisak case.
FACTS DIFFERENT ENOUGH?
Attorney Robert Bryan of San Francisco, the lead lawyer for Abu-Jamal, =20=
said he believes the Mills issue as it arose in Spisak's case is =20
factually and procedurally different enough that the outcome will not =20=
dictate how Abu-Jamal's case should be decided.
But Deputy District Attorney Ronald Eisenberg, who attended the oral =20
arguments, said he anticipates that the justices will reach the Mills =20=
issue and will find fault in the way the 6th U.S. Circuit Court of =20
Appeals applied it in Spisak's case.
While most of the federal circuits have declined to extend Mills to =20
cases in which there was a risk of juror confusion, Eisenberg said, =20
the 6th Circuit did so in Spisak's case and the 3rd Circuit committed =20=
the same error in Abu-Jamal's case.
'PADILLA v. KENTUCKY'
In the first case argued Tuesday, Padilla v. Kentucky, a lawyer told =20
his client, Jose Padilla, a permanent resident alien arrested for drug =20=
trafficking, that pleading guilty as part of a plea agreement would =20
not expose him to deportation. That advice was flat wrong.
Padilla sued in 2004, claiming ineffective assistance that deprived =20
him of his constitutional rights. But the Kentucky Supreme Court ruled =20=
that incorrect advice on matters that are collateral to the criminal =20
case don't make out a case of ineffective assistance under the Supreme =20=
Court's Strickland v. Washington standard.
Most U.S. Supreme Court justices seemed wary of expanding the =20
definition of ineffective assistance to include flawed advice on =20
matters beyond the actual criminal case the lawyer is handling.
"We have to decide whether we are opening a Pandora's box here," said =20=
Scalia, who said flawed advice about the effect of a guilty plea on =20
child custody could be another issue defendants would raise.
Breyer also said, "The world is filled with 42 billion circumstances" =20=
that could trigger ineffective-assistance claims for other reasons.
Stephen Kinnaird of Paul Hastings Janofsky & Walker, arguing for =20
Padilla, said deportation is "so severe and so material" that the =20
court could limit its ruling to advice in that area. "The lawyer has =20
the distinct duty to assess the advantages and disadvantages of the =20
plea."
Deputy Solicitor General Michael Dreeben told the court that a =20
criminal defense lawyer does not have a constitutional duty to advise =20=
his client about immigration law, but if he or she does and does so =20
incorrectly, "the lawyer has used his professional skills to undermine =20=
a personal decision that belongs to the defendant alone."
The Padilla case is being tracked by immigrant rights advocates who =20
say thousands of immigrants have been put in jeopardy by poor legal =20
representation and advice. "Every day, immigrants are advised to give =20=
up their rights and plead guilty to charges that subject them to =20
lifetime exile," said Benita Jain, co-director of the Immigrant =20
Defense Project.
Tony Mauro, the U.S. Supreme Court correspondent for The Legal =20
Intelligencer affiliate The National Law Journal, contributed =20
reporting to this article.
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<html><body style=3D"word-wrap: break-word; -webkit-nbsp-mode: space; =
-webkit-line-break: after-white-space; "><span class=3D"Apple-style-span" =
style=3D"font-family: Verdana; font-size: 13px; "><div =
id=3D"printerfriendlycontent">Please go to <a =
href=3D"http://www.freemumia.com/meeting.html">http://www.freemumia.com/me=
eting.html</a> for info on 10/17 EMERGENCY MEETING and make plans to =
attend!</div><div id=3D"printerfriendlycontent">=3D=3D=3D=3D=3D=3D=3D=3D=3D=
=3D=3D=3D</div><div id=3D"printerfriendlycontent"><br></div><div =
id=3D"printerfriendlycontent">From: Hans Bennett</div><div =
id=3D"printerfriendlycontent">-------------</div><div =
id=3D"printerfriendlycontent"><a =
href=3D"http://www.law.com/jsp/article.jsp?id=3D1202434533155&;Mumia_Ab=
uJamals_Life_May_Hinge_on_Case_of_NeoNazi_Triple_Murderer">http://www.law.=
com/jsp/article.jsp?id=3D1202434533155&Mumia_AbuJamals_Life_May_Hinge_=
on_Case_of_NeoNazi_Triple_Murderer</a><br><br><h2>Mumia Abu-Jamal's Life =
May Hinge on Case of Neo-Nazi Triple Murderer</h2>Shannon P. =
Duffy<br><br>10-14-2009</div><div id=3D"printerfriendlycontent"><br>In a =
bizarre twist of fate, Mumia Abu-Jamal -- the convicted cop killer whose =
quarter century on death row in Pennsylvania has made him =
internationally famous -- may find that his very life hinges on the =
outcome of a U.S. Supreme Court argument on Tuesday in the case of a =
neo-Nazi triple murderer who wore a Hitler mustache at trial as he =
testified proudly about his desire to kill blacks, Jews and =
gays. </div><div id=3D"printerfriendlycontent"><br>For Abu-Jamal, =
the stakes couldn't be higher. And the worst-case scenario is that the =
decision in the Ohio case, <em>Smith v. Spisak</em>, could directly =
lead to a reinstatement of Abu-Jamal's death sentence.</div><div =
id=3D"printerfriendlycontent"> <br>But the justices may never reach =
the legal issues that Abu-Jamal shares with Frank Spisak, the neo-Nazi =
convicted in that case. That could happen if the high court instead =
focuses entirely on issues relating to whether Spisak's defense lawyer =
at trial <a target=3D"new" =
href=3D"http://www.law.com/jsp/article.jsp?id=3D1202434517286">did such =
a poor job in delivering his closing argument</a> in the death =
penalty phase that his death sentence cannot stand. <br>If Spisak =
secures a victory purely on those grounds, the justices might find it =
unnecessary to rule on a second issue -- whether the jury instructions =
were confusing and faulty in Spisak's (and in Abu-Jamal's) =
case. </div><div id=3D"printerfriendlycontent"><br>Abu-Jamal's case =
has been in a kind of legal limbo since April. The justices rejected =
Abu-Jamal's petition for certiorari -- effectively upholding his =
conviction for the murder of Philadelphia Police Officer Daniel Faulkner =
-- but took no action on a petition from the Philadelphia district =
attorney seeking to have his death sentence reinstated. </div><div =
id=3D"printerfriendlycontent"><br>It soon became clear that the justices =
were holding the Philadelphia prosecutors' petition in abeyance because =
they had agreed to hear Spisak's case, which raised a nearly identical =
issue. <br>Typically in such cases, the justices decide the first =
case and then, if necessary, issue summary reversals in the other =
pending cases that raised the same issue, sending them back to the lower =
courts to reconsider in light of the high court's most recent =
pronouncement. </div><div id=3D"printerfriendlycontent"><br>The =
issue that Abu-Jamal shares with Spisak is that both men won court =
rulings that overturned their death sentences based on <em><a =
target=3D"new" href=3D"http://supreme.justia.com/us/486/367/">Mills v. =
Maryland</a></em>, a 1988 U.S. Supreme Court decision that governs how =
juries should deliberate during the penalty phase of a capital =
trial. </div><div =
id=3D"printerfriendlycontent"><br>In <em>Mills</em>, the justices =
struck down a Maryland statute that said juries in capital cases must be =
unanimous on any aggravating or mitigating factor. </div><div =
id=3D"printerfriendlycontent"><br>The 5-4 decision declared that =
unanimity was properly required only for "aggravating" factors that =
support death sentences, 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. </div><div =
id=3D"printerfriendlycontent"><br>The question now before the courts is =
whether <em>Mills</em> requires that death sentences in other =
states be overturned if the juries in those states are misled by faulty =
instructions or verdict forms to believe that mitigating factors require =
unanimity. </div><div id=3D"printerfriendlycontent"><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<em>Mills</em> by imposing its =
own interpretation that extends <em>Mills</em> beyond its =
original scope? </div><div =
id=3D"printerfriendlycontent"><br><strong>A BIZARRE CLOSING =
ARGUMENT</strong> </div><div id=3D"printerfriendlycontent"><br>But =
in Tuesday's argument, the justices spent most of their time discussing =
Spisak's second argument -- that his trial lawyer had delivered such a =
poor closing argument in the penalty phase that he was effectively =
denied effective representation. </div><div =
id=3D"printerfriendlycontent"><br>On that point, the justices were all =
over the map. </div><div id=3D"printerfriendlycontent"><br>"Have =
you ever heard or read a defense summation that was more derogatory of =
the defendant than the summation here?" Justice Samuel A. Alito Jr. =
asked Ohio Attorney General Richard Cordray. </div><div =
id=3D"printerfriendlycontent"><br>Cordray insisted that the trial lawyer =
had done the best he could with "the bed that was made by his client, =
who got on the stand for days on end and spewed his racist propaganda, =
made it clear that he was not only unrepentant but was =
triumphant." </div><div id=3D"printerfriendlycontent"><br>Alito =
pressed the point, saying the lawyer told the jury that Spisak demanded =
no sympathy, and asked: "Isn't that exactly what he has to appeal for in =
order not to get a death verdict, sympathy based on mental illness, =
despite the horrific crimes that this person committed?" </div><div =
id=3D"printerfriendlycontent"><br>Cordray disagreed, saying he =
considered the lawyer's speech to be part of a "coherent strategy" that =
was premised on telling the jury: "I can sense that you are not feeling =
sympathy for my client. Do what makes you a humane people, what makes us =
proud as a people, and do not give the death penalty to a person who is =
sick, demented, twisted, as my client has shown himself to =
be." </div><div id=3D"printerfriendlycontent"><br>Justice Ruth =
Bader Ginsburg described the closing argument as "disjointed" and said, =
"it goes off on tangents that have nothing to do with the sentence. ... =
I mean, it really is quite a stream of consciousness." </div><div =
id=3D"printerfriendlycontent"><br>But Ginsburg also asked Spisak's =
lawyer, Michael Benza of Chagrin Falls, Ohio: "Do you know of any case =
where ineffective assistance was found on the basis of a closing =
argument alone?" <br>Benza conceded he did not, but insisted that =
was only because Spisak's case was "such an outlier." </div><div =
id=3D"printerfriendlycontent"><br>"I have been litigating capital cases =
since 1993. I have never seen a closing argument like this," Benza =
said. </div><div id=3D"printerfriendlycontent"><br>A group of 20 =
law professors who teach trial advocacy filed an amicus brief supporting =
Spisak that urged the justices to declare that his trial lawyer's speech =
"was deficient to such a level that it constituted ineffective =
assistance of counsel." </div><div =
id=3D"printerfriendlycontent"><br>But several justices seemed inclined =
to approve of the argument as a sound strategy. </div><div =
id=3D"printerfriendlycontent"><br>As Justice Stephen Breyer described =
it: "It makes sense logically to say he has the worst defendant he has =
ever seen. He's murdered lots of people in cold blood. He gets up on the =
stand and says: =91I'm going to kill a lot more.' He sounds totally =
bonkers." </div><div id=3D"printerfriendlycontent"><br>Breyer said =
he interpreted the trial lawyer's strategy as recognizing that his =
insanity defense had failed, but nonetheless arguing to the jury, "We =
don't execute people who are crazy and this guy is =
crazy." </div><div id=3D"printerfriendlycontent"><br>Justice =
Antonin Scalia went further, saying, "I thought it was a brilliant =
closing argument. ... Have you ever conducted a capital case in which =
the defendant takes the stand with a Hitler mustache and says he's glad =
for what he's done and he will do it again? ... This was an =
extraordinary trial, and it seems to me that the technique that counsel =
used to try to get mercy for this fellow was the best that could have =
been done." </div><div id=3D"printerfriendlycontent"><br>In =
telephone interviews Tuesday afternoon, lawyers on both sides of the =
Abu-Jamal case expressed guarded optimism about the outcome in =
the <em>Spisak</em> case. </div><div =
id=3D"printerfriendlycontent"><br><strong>FACTS DIFFERENT =
ENOUGH?</strong> </div><div =
id=3D"printerfriendlycontent"><br>Attorney Robert Bryan of San =
Francisco, the lead lawyer for Abu-Jamal, said he believes =
the <em>Mills</em> issue as it arose in Spisak's case is =
factually and procedurally different enough that the outcome will not =
dictate how Abu-Jamal's case should be decided. </div><div =
id=3D"printerfriendlycontent"><br>But Deputy District Attorney Ronald =
Eisenberg, who attended the oral arguments, said he anticipates that the =
justices will reach the <em>Mills</em> issue and will find =
fault in the way the 6th U.S. Circuit Court of Appeals applied it in =
Spisak's case. </div><div id=3D"printerfriendlycontent"><br>While =
most of the federal circuits have declined to extend Mills to cases in =
which there was a risk of juror confusion, Eisenberg said, the 6th =
Circuit did so in Spisak's case and the 3rd Circuit committed the same =
error in Abu-Jamal's case. </div><div =
id=3D"printerfriendlycontent"><br><strong>'PADILLA v. =
KENTUCKY'</strong> </div><div id=3D"printerfriendlycontent"><br>In =
the first case argued Tuesday, <em>Padilla v. Kentucky</em>, a =
lawyer told his client, Jose Padilla, a permanent resident alien =
arrested for drug trafficking, that pleading guilty as part of a plea =
agreement would not expose him to deportation. That advice was flat =
wrong. </div><div id=3D"printerfriendlycontent"><br>Padilla sued in =
2004, claiming ineffective assistance that deprived him of his =
constitutional rights. But the Kentucky Supreme Court ruled that =
incorrect advice on matters that are collateral to the criminal case =
don't make out a case of ineffective assistance under the Supreme =
Court's <em><a target=3D"new" =
href=3D"http://supreme.justia.com/us/466/668/case.html">Strickland v. =
Washington</a></em> standard. </div><div =
id=3D"printerfriendlycontent"><br>Most U.S. Supreme Court justices =
seemed wary of expanding the definition of ineffective assistance to =
include flawed advice on matters beyond the actual criminal case the =
lawyer is handling. <br>"We have to decide whether we are opening a =
Pandora's box here," said Scalia, who said flawed advice about the =
effect of a guilty plea on child custody could be another issue =
defendants would raise. </div><div =
id=3D"printerfriendlycontent"><br>Breyer also said, "The world is filled =
with 42 billion circumstances" that could trigger ineffective-assistance =
claims for other reasons. </div><div =
id=3D"printerfriendlycontent"><br>Stephen Kinnaird of Paul Hastings =
Janofsky & Walker, arguing for Padilla, said deportation is "so =
severe and so material" that the court could limit its ruling to advice =
in that area. "The lawyer has the distinct duty to assess the advantages =
and disadvantages of the plea." </div><div =
id=3D"printerfriendlycontent"><br>Deputy Solicitor General Michael =
Dreeben told the court that a criminal defense lawyer does not have a =
constitutional duty to advise his client about immigration law, but if =
he or she does and does so incorrectly, "the lawyer has used his =
professional skills to undermine a personal decision that belongs to the =
defendant alone." </div><div =
id=3D"printerfriendlycontent"><br>The <em>Padilla</em> case is =
being tracked by immigrant rights advocates who say thousands of =
immigrants have been put in jeopardy by poor legal representation and =
advice. "Every day, immigrants are advised to give up their rights and =
plead guilty to charges that subject them to lifetime exile," said =
Benita Jain, co-director of the Immigrant Defense =
Project. </div><div id=3D"printerfriendlycontent"><br><em>Tony =
Mauro, the U.S. Supreme Court correspondent for </em>The Legal =
Intelligencer<em> affiliate </em>The National Law Journal<em>, =
contributed reporting to this =
article.</em><br></div><br></span></body></html>=
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