S.P.Duffy: Mumias Leben könnte von Urteilsspruch über einen 3-fachen Neonazimörder abhängen (nattyreb)

Shannon P. Duffy

 

10-14-2009

 

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.

(Eine bizarre Drehung des Schicksals hat Mumia Abu Jamal – den verurteilten Polizistenmörder , der sich ein Viertel Jahrhundert im Todestrakt in Pennsylvanien befindet, international berühmt gemacht. Er meinte, dass es sein könnte, dass sein ganzes Leben vom Ergebnis eines Obersten US-Gerichtsurteils am Dienstag über einen dreifachen Neonazi-Mörder abhängt (Smith v. Spisak), der bei der Gerichtsverhandlung einen Hitler Schnurrbart trug und stolz seinen Wunsch ausdrückte, Schwarze Juden und Schwule zu töten.)

 

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?

 

A BIZARRE CLOSING ARGUMENT

 

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.

 

FACTS DIFFERENT ENOUGH?

 

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.

 

‚PADILLA v. KENTUCKY‘

 

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.