Thursday, October 15, 2009

Second Legal Intelligencer Article on Mumia's death penalty

Please go to for info on 10/17 EMERGENCY MEETING and make plans to attend!

From: Hans Bennett:

Mumia Abu-Jamal's Life May Hinge on Case of Neo-Nazi Triple Murderer
Shannon P. Duffy

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.

For Abu-Jamal, the stakes couldn't be higher. And the worst-case scenario is that the decision in the Ohio case, Smith v. Spisak, could directly lead to a reinstatement of Abu-Jamal's death sentence.

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 did such a poor job in delivering his closing argument in the death penalty phase that his death sentence cannot stand.
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.

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.

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.
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.

The issue that Abu-Jamal shares with Spisak is that both men won court rulings that overturned their death sentences based on Mills v. Maryland, a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.

In Mills, the justices struck down a Maryland statute that said juries in capital cases must be unanimous on any aggravating or mitigating factor.

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.

The question now before the courts is whether Mills 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.

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?


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.

On that point, the justices were all over the map.

"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.

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."

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?"

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."

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."

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?"
Benza conceded he did not, but insisted that was only because Spisak's case was "such an outlier."

"I have been litigating capital cases since 1993. I have never seen a closing argument like this," Benza said.

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."

But several justices seemed inclined to approve of the argument as a sound strategy.

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: ‘I'm going to kill a lot more.' He sounds totally bonkers."

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."

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."

In telephone interviews Tuesday afternoon, lawyers on both sides of the Abu-Jamal case expressed guarded optimism about the outcome in the Spisak case.


Attorney Robert Bryan of San Francisco, the lead lawyer for Abu-Jamal, said he believes the Mills 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.

But Deputy District Attorney Ronald Eisenberg, who attended the oral arguments, said he anticipates that the justices will reach the Mills issue and will find fault in the way the 6th U.S. Circuit Court of Appeals applied it in Spisak's case.

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.


In the first case argued Tuesday, Padilla v. Kentucky, 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.

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 Strickland v. Washington standard.

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.
"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.

Breyer also said, "The world is filled with 42 billion circumstances" that could trigger ineffective-assistance claims for other reasons.

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."

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."

The Padilla 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.

Tony Mauro, the U.S. Supreme Court correspondent for The Legal Intelligencer affiliate The National Law Journal, contributed reporting to this article.