Mumia Third Circuit Court Upholds New Sentencing Phase Trial (Mumia NYC)

Von: „MUMIA ABU-JAMAL“ <>

Betreff: !*

Datum: Donnerstag, 28. April 2011 23:15
Note: Philly press includes video of first Black DA Seth Williams vowing to fight for the death of Mumia on 4/26

http://philadelphia.cbslocal.com/2011/04/26/us-court-grants-new-sentencing-for-mumia-abu-jamal/

( www.abu-jamal-news.com ) has several great links!

On April 26, 2011 the US Third Circuit Court upheld earlier rulings from 2001 (by US District Court Judge William Yohn) and 2008 (by the same 3rd Circuit panel of three judges) that ‚overturned’* the death sentence and stated that if the DA wants to re-instate the death penalty, then Mumia must first be given a new sentencing phase jury trial where Mumia can present evidence of innocence but the jury can only decide between execution or life in prison without parole. (View full ruling)

According to the ruling, the DA has 180 days to decide whether or not to have a new sentencing trial. However, the DA is now appealing this ruling to the US Supreme Court, further postponing the 180 day deadline.

*The word ‚overturned‘ must be qualified because following the 2001 ruling, at the DA’s request, Mumia has never left his death row cell or been given general population ‚privileges‘ such as contact visits with family.

RELATED: NAACP LDF press release II Linn Washington Jr. II Jeff Mackler II Associated Press / ABC II FreeMumia.com

_____________________________________________________

Von: MumiaNYC@yahoogroups.com  Im Auftrag
von info@freemumia.com
Gesendet: Dienstag, 26. April 2011 16:24
Betreff: [MumiaNYC]

Big News on Mumia! Third Circuit Upholds 2008

Decision of Life in Prison!
We have not yet seen the actual decision, nor the press release which will
soon be released by the attorneys, but Attorney Judith Ritter who argued
this issue before the Third Circuit on November 9th, with many of us in
attendance, just informed us that the original ruling by Judge William Yohn
back in 2001, upheld by the Third Circuit in 2008, was sustained by the
Third Circuit. In other words, the death sentence has NOT been reimposed!

Needless to say this is a result of the excellent presentation by Judith
Ritter and the escalated activity by the grassroots movement over these many
months since the death penalty issue was reintroduced –in other words the
movement showed that it was not going away!!!

GOOD NEWS! CONGRATULATIONS TO JUDITH RITTER AND TO ALL OF US WHO’VE WORKED
TOGETHER AND HAVE HUNG IN THERE FOR SO MANY YEARS! THE STRUGGLE CONTINUES!

Ona Move! Free Mumia and All Our Political Prisoners!

Suzanne Ross, for the Free Mumia Abu-Jamal Coalition
_____________________________________________________

Von: MumiaNYC@yahoogroups.com  Im Auftrag
von info@freemumia.com
Gesendet: Dienstag, 26. April 2011 16:25
Betreff: [MumiaNYC]

TEXT OF THIRD CIRCUIT DECISION NOT

TO REINSTATE THE DEATH PENALTY ON MUMIA
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-9014
___________
MUMIA ABU-JAMAL,
a/k/a WESLEY COOK
v.
*SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; CONNER BLAINE,
SUPERINTENDENT, SCI GREENE; DISTRICT ATTORNEY FOR PHILADELPHIA COUNTY;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,
Appellants
*Pursuant to Fed. R. App. P. 43(c)
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 99-cv-05089
(Honorable William H. Yohn Jr.)
______________
Argued May 17, 2007
Case: 01-9014 Document: 003110511943 Page: 1 Date Filed: 04/26/2011
Decided March 27, 2008
Certiorari Granted, Judgment Vacated and Remanded
from the Supreme Court of the United States
January 19, 2010
Argued on Remand from the
Supreme Court of the United States
November 9, 2010
Before: SCIRICA, AMBRO and COWEN, Circuit Judges.
(Filed: April 26, 2011)
HUGH J. BURNS, JR., ESQUIRE (ARGUED)
RONALD EISENBERG, ESQUIRE
Office of District Attorney
Three South Penn Square
Philadelphia, Pennsylvania 19107-3499
Attorneys for Appellants
JUDITH L. RITTER, ESQUIRE (ARGUED)
Widener University School of Law
P.O. Box 7474
4601 Concord Pike
Wilmington, Delaware 19803
Attorney for Appellee
_________________
OPINION OF THE COURT
_________________
2
Case: 01-9014 Document: 003110511943 Page: 2 Date Filed: 04/26/2011
SCIRICA, Circuit Judge.
Mumia Abu-Jamal was convicted of first-degree murder in state court and
sentenced to death. After exhausting state appeals, he filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2254. A divided panel of this
court affirmed the denial of Abu-Jamal’s petition insofar as it challenged
his conviction. See Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008). Our
court denied his petition for rehearing en banc, and the Supreme Court of
the United States denied his petition for a writ of certiorari seeking
review of his conviction, Abu-Jamal v. Beard, — U.S. —-, 129 S. Ct. 1910
(2009) (mem.). Abu-Jamal’s conviction for first-degree murder stands.
On his death penalty challenge,1 the District Court found the Pennsylvania
Supreme Court’s order denying post-conviction relief involved an
unreasonable application of United States Supreme Court precedent. See 28
U.S.C. § 2254(d)(1). We affirmed the District Court’s grant of habeas relief
on the sentence, see Abu-Jamal, 520 F.3d at 304, and our court denied the
petition for rehearing en banc. The Commonwealth of Pennsylvania then
petitioned the United States Supreme Court for a writ of certiorari,
challenging our affirmance of the District Court’s grant of habeas relief on
the sentence.
1 Abu-Jamal claimed the jury was unconstitutionally limited in its
consideration of mitigating factors to only mitigating factors found
unanimously by the jury. See Mills v. Maryland, 486 U.S. 367 (1988).
3
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On January 19, 2010, the United States Supreme Court granted the
Commonwealth’s petition for a writ of certiorari, vacated our judgment as to
Abu-Jamal’s sentence, and remanded for further consideration. Beard v.
Abu-Jamal, — U.S. —-, 130 S. Ct. 1134 (2010) (mem.). The Supreme Court
directed that we reconsider our holding in light of intervening authority,
Smith v. Spisak, 558 U.S. —-, 130 S. Ct. 676 (2010).
After further review, we conclude the Pennsylvania Supreme Court
unreasonably applied Mills v. Maryland, 486 U.S. 367 (1988), requiring
Abu-Jamal’s death sentence to be vacated. Our decision is required by Mills
and consistent with Spisak. Accordingly, we will affirm the District Court’s
grant of habeas relief on Abu-Jamal’s mitigation instruction claim.
I.
In 1982, a Pennsylvania jury convicted Abu-Jamal of the murder of
Philadelphia Police Officer Daniel Faulkner. See Abu-Jamal, 520 F.3d at
274-76 (providing a full factual history). The jury returned, and the judge
imposed, a sentence of death.
The Pennsylvania courts denied Abu-Jamal’s claims on direct appeal and
collateral review. Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989);
Commonwealth v. Abu-Jamal, 569 A.2d 915 (Pa. 1990) (per curiam);
Commonwealth v. Abu-Jamal, No. 1357, 1995 WL 1315980, at *128 (C.P. Ct.
Phila. Cty. Sept. 15, 1995); Commonwealth v. Abu-Jamal,
4
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720 A.2d 79 (Pa. 1998); Commonwealth v. Abu-Jamal, 833 A.2d 719 (Pa. 2003).
The United States Supreme Court denied Abu-Jamal’s petition for a writ of
certiorari on October 1, 1990, Abu-Jamal v. Pennsylvania, 498 U.S. 881
(1990) (mem.) (on direct review), his petition for rehearing on November 26,
1990, Abu-Jamal v. Pennsylvania, 498 U.S. 993 (1990) (mem.), a second
request for rehearing on June 10, 1991, Abu-Jamal v. Pennsylvania, 501 U.S.
1214 (1991) (mem.), and a second and third petition for a writ of certiorari
on October 4, 1999, Abu-Jamal v. Pennsylvania, 528 U.S. 810 (1999) (mem.)
(on collateral review), and May 17, 2004, Abu-Jamal v. Pennsylvania, 541
U.S. 1048 (2004) (mem.) (same), respectively.
Having exhausted state court remedies, Abu-Jamal filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254 in the United States District Court
for the Eastern District of Pennsylvania. He challenged the validity of his
criminal conviction, his capital sentence, and the sufficiency of
post-conviction review. He argued, among other things, that the sentencing
phase of his trial violated the United States Constitution because the jury
instructions and verdict sheet required jury unanimity in its findings with
respect to the existence of mitigating circumstances. The District Court
denied the petition as to the conviction and post-conviction proceedings but
accepted Abu-Jamal’s mitigation instruction claim. See Abu-Jamal v. Horn,
No. Civ. A. 99-5089, 2001 WL 1609690, at *1 (E.D. Pa. Dec. 18, 2001). The
court concluded the Pennsylvania Supreme Court unreasonably applied United
States Supreme Court precedent in finding otherwise and affirming the Court
of Common Pleas of
5
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Philadelphia County’s denial of post-conviction relief. See id. at *126.
Consequently, the District Court granted a writ of habeas corpus on this
claim and ordered the Commonwealth to conduct a new sentencing hearing or
sentence Abu-Jamal to life imprisonment. Id. at *130. The Commonwealth
appealed the order of the District Court granting the writ as to the
sentencing and Abu-Jamal cross-appealed the denial of the writ with respect
to the conviction. As noted, we affirmed the judgment of the District Court
in its entirety. Abu-Jamal, 520 F.3d at 274.2 Abu-Jamal subsequently filed a
petition for panel rehearing and rehearing en banc, which was denied.
Thereafter, the parties filed cross-petitions for writs of certiorari in the
Supreme Court of the United States. The Supreme Court denied Abu-Jamal’s
petition seeking review of his conviction, see Abu-Jamal v. Beard, — U.S.
—-, 129 S. Ct. 1910 (2009) (mem.), but granted the Commonwealth’s
petition, vacated the portion of our judgment regarding Abu-Jamal’s
sentence, and remanded for further consideration in light of new authority,
see Beard v. Abu-Jamal, — U.S. —-, 130 S. Ct. 1134 (2010) (mem.).
Our review on remand is limited to whether the Pennsylvania Supreme Court
unreasonably applied United States Supreme Court precedent in finding no
constitutional defect in the jury instructions and verdict form employed in
2 As noted, a divided panel affirmed the denial of habeas relief on the
conviction; the entire panel affirmed the grant of habeas relief on the
sentence. See Abu-Jamal, 520 F.3d at 305 (Ambro, J., concurring in part,
dissenting in part). 6
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the sentencing phase of Abu-Jamal’s trial. See 28 U.S.C. § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Pursuant to the Supreme
Court’s order, we consider this question in light of Spisak and will examine
whether the verdict form and jury instructions in the present case are
distinguishable from those at issue in Spisak such that, taken together,
they clearly brought about a „substantial probability“ the jury believed it
was precluded from considering any mitigating circumstance not found
unanimously. Mills, 486 U.S. at 384.
II.
Under the standard for habeas relief established by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a state prisoner’s application
for a writ of habeas corpus will be denied unless the adjudication of a
claim in state court proceedings „(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.“
28 U.S.C. § 2254(d)(1)-(2).
Under the first clause of § 2254(d)(1), „a state-court decision is contrary
to [Supreme Court] precedent if the state court arrives at a conclusion
opposite to that reached by th[e] Court on a question of law,“ or „if the
state court confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a result opposite to
7
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[the Court’s].“ Williams, 529 U.S. at 405. Here, the Pennsylvania Supreme
Court correctly identified Mills as the applicable Supreme Court precedent,
and the facts at issue are not „materially indistinguishable“ from those in
Mills. The Pennsylvania Supreme Court’s decision was consequently not
„contrary to“ Mills. See Williams, 529 U.S. at 405.
Accordingly, we consider only the second clause of § 2254(d)(1), and must
determine whether the Pennsylvania Supreme Court’s decision to deny
Abu-Jamal’s mitigation instruction claim „involved an unreasonable
application of[] clearly established Federal law, as determined by the
Supreme Court of the United States,“ 28 U.S.C. § 2254(d)(1), in Mills.
„Under § 2254(d)(1)’s `unreasonable application‘ clause . . . a federal
habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.“ Williams, 529 U.S. at 411; see
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) („The question under AEDPA is
not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially
higher threshold.“). The Supreme Court has instructed that, in making this
inquiry, we „should ask whether the state court’s application of clearly
established federal law was objectively unreasonable.“ Williams, 529 U.S. at
409.
In Spisak, the Supreme Court found no violation of Mills and consequently
concluded the state court decision at
8
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issue, reaching the same conclusion, was not „`contrary to, or . . . an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States‘ in Mills.“ 130 S. Ct. at 684
(quoting 28 U.S.C. § 2254(d)(1)) (alteration in original). Accordingly,
consistent with the Supreme Court’s order to reconsider in light of Spisak,
we first evaluate whether a Mills violation has occurred, and then proceed
to examine whether the Pennsylvania Supreme Court’s application of Mills was
objectively unreasonable under the second clause of § 2254(d)(1).
III.
In Mills, the Supreme Court vacated a death sentence after finding there was
„a substantial probability that reasonable jurors, upon receiving the
judge’s instructions in this case, and in attempting to complete the verdict
form as instructed, well may have thought they were precluded from
considering any mitigating evidence unless all 12 jurors agreed on the
existence of a particular such circumstance.“3 486 U.S. at 384. The Court
held the Constitution proscribes imposition of the death penalty if members
of the jury could reasonably believe they are precluded from considering
3 Spisak used the word „possibility“ instead of „probability“ when quoting
directly from Mills. See 130 S. Ct. at 684 (quoting Mills, 486 U.S. at 384).
We take this to have been inadvertent, and in any event Mills used both
formulations. See 486 U.S. at 377, 384. We do not understand Spisak to
9
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mitigating evidence unless the jury unanimously agrees the mitigating
circumstance has been proven to exist. Id. at 380, 384; see also McKoy v.
North Carolina, 494 U.S. 433, 442-43 (1990) („Mills requires that each juror
be permitted to consider and give effect to mitigating evidence when
deciding the ultimate question whether to vote for a sentence of death.“).4
The verdict form at issue in Mills included a list of potentially mitigating
circumstances, and spaces for the jury to check „yes“ or „no“ after each
circumstance. Preceding the list, the form read „`[b]ased upon the evidence
we unanimously find that each of the following mitigating circumstances
which is marked `yes‘ has been proven to exist
have changed the legal standard for evaluating this kind of question.
4 In Boyde v. California, 494 U.S. 370 (1990), the Supreme Court held „[t]he
legal standard for reviewing jury instructions claimed to restrict
impermissibly a jury’s consideration of relevant evidence,“ id. at 378, is
„whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of
constitutionally relevant evidence,“ id. at 380. Because Spisak relied
exclusively on Mills‘ „substantial probability“ standard, and because we
think a „substantial probability“ is neither more nor less than a
„reasonable likelihood,“ see Hackett v. Price, 381 F.3d 281, 300 & n.13 (3d
Cir. 2004), we will consider whether there is a „substantial probability“
the jury believed it was precluded from finding a mitigating circumstance
that had not been unanimously agreed upon. 10
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. . . and each mitigating circumstance marked `no‘ has not been proven . . .
.'“ Mills, 486 U.S. at 387 (Appendix to the Opinion of the Court). Next, the
form read „`[b]ased on the evidence we unanimously find that it has been
proven . . . that the mitigating circumstances marked `yes‘ . . . outweigh
the aggravating circumstances,'“ and provided spaces where the jury could
mark either „yes“ or „no.“ Id. at 388-89. Thus, the „instructions, together
with the forms, told the jury to mark `yes‘ on [the] list of mitigating
factors only if the jury unanimously concluded that the particular
mitigating factor had been proved, and to consider in its weighing analysis
. . . only those mitigating factors marked `yes.'“ Spisak, 130 S. Ct. at
683. Accordingly, the Court found the jury was „not free . . . to consider
all relevant evidence in mitigation as they balanced aggravating and
mitigating circumstances,“ but only mitigating evidence found unanimously to
exist.5 Mills, 486 U.S. at 380. The Mills Court conceded that a
constitutional „construction of the jury instructions and verdict form is
plausible,“ id. at 377, but remanded for resentencing because there was „at
least a substantial risk that the jury was misinformed,“ id. at 381, and had
reasonably interpreted the jury instructions and verdict form to preclude
consideration of mitigating circumstances not found unanimously, see id. at
384 („Under our cases, the sentencer must be permitted to consider all
mitigating evidence. The possibility that a single juror could block such
consideration, and consequently
5 The jury in Mills did not mark „yes“ next to any mitigating circumstance,
486 U.S. at 387-88, and did not actually reach the balancing stage, id. at
380 n.13. 11
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require the jury to impose the death penalty, is one we dare not risk.“).
We conclude the verdict form and jury instructions in this case likewise
created a substantial probability the jury believed it was precluded from
finding a mitigating circumstance that had not been unanimously agreed upon.
In relevant part, the first page of the verdict form used in Abu-Jamal’s
trial stated:
(1) We, the jury, unanimously sentence the defendant to
[X] death
[ ] life imprisonment.
(2) (To be used only if the aforesaid sentence is death)
We, the jury, have found unanimously [ ] at least one aggravating
circumstance and no mitigating circumstance. The aggravating circumstance(s)
is/are
________________________________.
[X] one or more aggravating circumstances which outweigh any mitigating
circumstances. The aggravating circumstance(s) is/are
_______________A_______________.
The mitigating circumstance(s) is/are _______________A________________.
12
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The second page listed ten potentially aggravating circumstances (a-j). A
third page listed eight potentially mitigating circumstances (a-h).6 Each of
the potential aggravating or mitigating circumstance listed had a space next
to it for the jury to place a checkmark if it found the aggravating or
mitigating circumstance to exist. On the third and final page, there were
twelve spaces for each juror to sign his or her name, and each did. The
instructions given to the jury provided, in part:
Members of the jury, you must now decide whether the defendant is to be
sentenced to death or life imprisonment. The sentence will depend upon your
findings concerning aggravating and mitigating circumstances. The Crimes
Code provides that a verdict must be a sentence of death if the jury
unanimously finds at least one aggravating circumstance and no mitigating
circumstance, or if the jury unanimously finds one or more aggravating
circumstances which outweigh any mitigating circumstances.
6 The jury placed a checkmark next to mitigating circumstance (a) on the
third page and then indicated this selection on the first page by writing
„A.“ Circumstance (a) reads: „The defendant has no significant history of
prior criminal convictions[.]“ Circumstance (h) allowed the jury to consider
and select „[a]ny other mitigating matter concerning the character or record
of the defendant or the circumstances of his offense.“
13
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The verdict must be a sentence of life imprisonment in all other cases.
. . . . .
The [C]ommonwealth has the burden of proving aggravating circumstances
beyond a reasonable doubt. The defendant has the burden of proving
mitigating circumstances, but only by a preponderance of the evidence. This
is a lesser burden of proof than beyond a reasonable doubt. A preponderance
of the evidence exists where one side is more believable than the other
side. . . .
Now, the verdict is for you, members of the jury. Remember and consider all
of the evidence giving it the weight to which it is entitled. Remember that
you are not merely recommending a punishment. The verdict you return will
actually fix the punishment at death or life imprisonment. Remember again
that your verdict must be unanimous. It cannot be reached by a majority vote
or by any percentage. It must be the verdict of each and everyone [sic] of
you.
Remember that your verdict must be a sentence of death if you unanimously
find at least one 14
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aggravating circumstance and no mitigating circumstances. Or, if you
unanimously find one or more aggravating circumstances which outweigh any
mitigating circumstances. In all other cases, your verdict must be a
sentence of life imprisonment.
It is substantially probable the verdict form’s first page, especially
„[w]e, the jury, have found unanimously . . . one or more aggravating
circumstances which outweigh any mitigating circumstances,“ was read by the
jury to mean that both aggravating and mitigating circumstances must be
found unanimously. The jury instructions read similarly, stating: „The
Crimes Code provides that a verdict must be a sentence of death if the jury
unanimously finds at least one aggravating circumstance and no mitigating
circumstance, or if the jury unanimously finds one or more aggravating
circumstances which outweigh any mitigating circumstances.“ And the portion
of the form where the jury was instructed to identify any mitigating
circumstances found—“The mitigating circumstance(s) is/are ___.“—was
introduced by the words „[w]e, the jury, have found unanimously.“ Moreover,
the instructions throughout and repeatedly emphasized unanimity. In light of
the language and parallel structure of the form and instructions in relation
to aggravating and mitigating circumstances, it is notable that neither the
verdict form nor the judge’s charge said or in any way suggested that the
jury should apply the unanimity requirement to its findings of aggravating
but not mitigating circumstances. This absence is also notable because the
trial court
15
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distinguished between the two with respect to the proper burden of proof the
jury should apply.
We conclude the verdict form together with the jury instructions read that
unanimity was required in the consideration of mitigating circumstances and
that there is a substantial probability the jurors believed they were
precluded from independent consideration of mitigating circumstances in
violation of Mills. We now compare the instructions at issue in Spisak with
the verdict form and jury charge here to determine whether our conclusion is
consistent with Spisak.
IV.
In Spisak the Supreme Court evaluated a Sixth Circuit decision holding a
habeas petitioner’s sentencing instructions unconstitutional. The Supreme
Court found the forms and instructions used in the sentencing phase of
Spisak’s trial „differ[ed] significantly,“ Spisak, 130 S. Ct. at 683, from
those at issue in Mills such that Mills was not violated and „consequently .
. . the state court[] decision upholding the[] forms and instructions was
not `contrary to, or . . . an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States‘ in Mills,“ id. at 684 (alteration in original) (quoting 28 U.S.C. §
2254(d)(1)). In Spisak’s trial, the jury found aggravating circumstances
prior to, and separately from, the sentencing phase of the trial when the
jury was directed to consider mitigating circumstances. At Spisak’s
sentencing hearing, the trial judge instructed the jury that the
„aggravating factors
16
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they would consider were the specifications that the jury had found proved
beyond a reasonable doubt at the guilt phase of the trial—essentially, that
each murder was committed in a course of conduct including . . . other
crimes, and, for two of the murders, that the murder was committed with the
intent to evade apprehension or punishment for another offense.“ Id. at 683.
The judge then explained what a mitigating factor was, listed examples, and
informed the jury they should consider „any other“ mitigating circumstances
„relevant to the issue of whether the defendant should be sentenced to
death.“ Id. (internal quotation marks omitted). The judge then instructed
the jury on how it should reach its verdict:
[Y]ou, the trial jury, must consider all of the relevant evidence raised at
trial, the evidence and testimony received in this hearing and the arguments
of counsel. From this you must determine whether, beyond a reasonable doubt,
the aggravating circumstances, which [Spisak] has been found guilty of
committing in the separate counts are sufficient to outweigh the mitigating
factors present in this case.
If all twelve members of the jury find by proof beyond a reasonable doubt
that the aggravating circumstance in each separate count outweighs the
mitigating factors, then you must return that finding to the Court.
. . . . .
17
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On the other hand, if after considering all of the relevant evidence raised
at trial, the evidence and the testimony received at this hearing and the
arguments of counsel, you find that the State failed to prove beyond a
reasonable doubt that the aggravating circumstances which [Spisak] has been
found guilty of committing in the separate counts outweigh the mitigating
factors, you will then proceed to determine which of two possible life
imprisonment sentences to recommend to the Court.
Id. at 683-84 (alteration in original) (internal quotation marks omitted).
Two sets of verdict forms were made available to the jury. One read:
We the jury in this case . . . do find beyond a reasonable doubt that the
aggravating circumstance which the defendant . . . was found guilty of
committing was sufficient to outweigh the mitigating factors present in this
case.
We the jury recommend that the sentence of death be imposed . . . .
Spisak Trial Transcript of July 19, 1983, at 2975-76, Court of Common Pleas,
Cuyahoga County, Ohio. The other read:
We the jury . . . do find that the aggravating circumstances which the
defendant . . . was found guilty of committing are not sufficient to
18
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outweigh the mitigating factors present in this case.
We the jury recommend that the defendant . . . be sentenced to life
imprisonment . . . .
Id. at 2976.
After reviewing the jury instructions and the language of the verdict forms,
the Supreme Court found that:
The instructions and forms made clear that, to recommend a death sentence,
the jury had to find, unanimously and beyond a reasonable doubt, that each
of the aggravating factors outweighed any mitigating circumstances. But the
instructions did not say that the jury must determine the existence of each
individual mitigating factor unanimously. Neither the instructions nor the
forms said anything about how—or even whether—the jury should make
individual determinations that each particular mitigating circumstance
existed. They focused only on the overall balancing question. And the
instructions repeatedly told the jury to „conside[r] all of the relevant
evidence.“
Spisak, 130 S. Ct. at 684 (alteration in original) (citation omitted). Based
on these findings, the Court concluded:
In our view the instructions and verdict forms did not clearly bring about,
either through what
19
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they said or what they implied, the circumstance that Mills found critical,
namely, „a substantial possibility [sic] that reasonable jurors, upon
receiving the judge’s instructions in this case, and in attempting to
complete the verdict form as instructed, well may have thought they were
precluded from considering any mitigating evidence unless all 12 jurors
agreed on the existence of a particular such circumstance.“
Id. at 684 (quoting Mills, 486 U.S. at 384).
The Commonwealth claims the instructions examined in Spisak are „virtually
identical“ to the language at issue here, which must therefore also be read
to address only the final balancing question. The Commonwealth sees
equivalence in „`[i]f all twelve members of the jury find by proof beyond a
reasonable doubt that the aggravating circumstance in each separate count
outweighs the mitigating factors,'“ Spisak, 130 S. Ct. at 683, and „[w]e,
the jury, have found unanimously . . . one or more aggravating circumstances
which outweigh any mitigating circumstances,“ from Abu-Jamal’s verdict form.
Thus, the Commonwealth contends the verdict form’s first page does not read
that both aggravating and mitigating circumstances must be found unanimously
in violation of Mills.
We disagree. The identified language of unanimity at issue in Spisak
addressed only how the jury should weigh aggravating and mitigating
circumstances, not how to find either individual aggravating or mitigating
circumstances. 20
Case: 01-9014 Document: 003110511943 Page: 20 Date Filed: 04/26/2011
Spisak, 130 S. Ct. at 684. The forms and instructions in Spisak contained no
language whatsoever „about how—or even whether—the jury should make
individual determinations that each particular mitigating circumstance
existed.“ Id. at 684.
The verdict form and judge’s instructions used in the sentencing phase of
Abu-Jamal’s trial are materially different and easily distinguished from
those at issue in Spisak. By contrast with Spisak, the identified language
of unanimity here indisputably addresses more than the final balancing of
aggravating and mitigating factors. „We, the jury, have found unanimously,“
directly refers to „one or more aggravating circumstances,“ and in the
absence of any instruction or even suggestion to the contrary, it is
substantially probable the jury applied the unanimity requirement to
„mitigating circumstances“ as well. When „read naturally,“ Spisak, 130 S.
Ct. at 682, in the context of the form and instructions, there is a
substantial probability the word „unanimously“ was understood by the jury to
modify and refer to the finding of both aggravating and mitigating
circumstances.7
Moreover, by further contrast with Spisak, the form and instructions
required the jury to make individual determinations that certain identified
mitigating
7 The same language appears again in the jury instructions: „The Crimes Code
provides that a verdict must be a sentence of death . . . if the jury
unanimously finds one or more aggravating circumstances which outweigh any
mitigating circumstances.“
21
Case: 01-9014 Document: 003110511943 Page: 21 Date Filed: 04/26/2011
circumstances existed and „said or . . . implied,“ id., at 684, that these
determinations must be made unanimously. The verdict form at issue in this
case required the jury to select any mitigating circumstances found from a
list of potentially mitigating circumstances; as discussed, the list is
accompanied by spaces for a checkmark after each potential circumstance. The
trial judge instructed the jury to identify each mitigating circumstance it
found and considered in its weighing of aggravating and mitigating
circumstances:
[The] mitigating circumstances appear on the third page here. They run from
a little (a) to a little letter (h). And whichever ones you find there, you
will put an „X“ mark or check mark and then, put it on the front here at the
bottom [of the first page], which says mitigating circumstances.
In Spisak the jury had already determined the existence of aggravating
circumstances at the guilt phase, separately from and before the sentencing
phase of the trial. Here, the form and instructions required the jury to
make individual determinations regarding both mitigating and aggravating
circumstances contemporaneously during the penalty phase. The verdict form
introduced the list of potential mitigating circumstances with the list of
aggravating circumstances under one heading reading „AGGRAVATING AND
MITIGATING CIRCUMSTANCES.“ The jury was instructed identically as to each
list.8 The parallel structure of
8 The jury instructions for aggravating circumstances stated:
22
Case: 01-9014 Document: 003110511943 Page: 22 Date Filed: 04/26/2011
the form in relation to aggravating and mitigating circumstances reads that
findings as to each should be made similarly. See Mills, 486 U.S. at 378
(„[W]e presume that, unless instructed to the contrary, the jury would read
similar language throughout the form consistently.“). Additionally,
And what you do, you go to Page 2. Page 2 lists all the aggravating
circumstances. They go from small letter (a) to small letter (j). Whichever
one of these that you find, you put an „X“ or check mark there and then, put
it on the front. Don’t spell it out, the whole thing, just what letter you
might have found.
The trial judge reiterated this instruction for the „second block“ under
section (2) and then instructed the jury as to mitigating circumstances:
And then, you would as I said before, on the second page indicate which
[aggravating circumstances] they were and put it on the front here, like a
small number or (a) or (b) or (c) or whatever one you might find. And then,
underneath that, there are: „The mitigating circumstances(s) [sic] is/are
__.“ And those mitigating circumstances appear on the third page here. They
run from a little (a) to a little letter (h). And whichever ones you find
there, you will put an „X“ mark or check mark and then, put it on the front
here at the bottom, which says mitigating circumstances.
23
Case: 01-9014 Document: 003110511943 Page: 23 Date Filed: 04/26/2011
the trial judge distinguished between mitigating and aggravating
circumstances with respect to the proper standard of proof applicable to
each.9 This reinforced the apparent similitude with respect to the finding
of mitigating and aggravating circumstances, increasing the „risk that the
jury was misinformed,“ id. at 381, and impermissibly limited in its
consideration of mitigating evidence. Accordingly, unlike the jury in
Spisak, the jury here was required to specify not only the aggravating
circumstances it found but also mitigating circumstances, to do so
simultaneously, to choose aggravating and mitigating circumstances from
visually identical lists, and to represent its findings as to each in an
identical manner. In light of what the form and instructions both said and
implied, and the repeated emphasis on unanimous findings, it is notable that
neither the verdict form nor the judge’s charge indicated in any manner that
the jury should apply the
9 The jury instructions stated:
The [C]ommonwealth has the burden of proving aggravating circumstances
beyond a reasonable doubt. The defendant has the burden of proving
mitigating circumstances, but only by a preponderance of the evidence. This
is a lesser burden of proof than beyond a reasonable doubt. A preponderance
of the evidence exists where one side is more believable than the other
side. All the evidence from both sides, including the evidence you heard
earlier during the trial-in-chief as to aggravating or mitigating
circumstances is important and proper for you to consider.
24
Case: 01-9014 Document: 003110511943 Page: 24 Date Filed: 04/26/2011
unanimity requirement to its finding of aggravating but not mitigating
circumstances.
Accordingly, we conclude our judgment that there is a „substantial
probability“ the jury believed it could not consider any mitigating
circumstance not unanimously agreed upon is consistent with Spisak. „There
is, of course, no extrinsic evidence of what the jury in this case actually
thought.“ Mills, 486 U.S. at 381. But we need only conclude a „natural
interpretation,“ id., of the forms and instructions together clearly brought
about „the circumstance that Mills found critical, namely,“ Spisak, 130 S.
Ct. at 684, „a substantial probability that reasonable jurors . . . well may
have thought they were precluded from considering any mitigating evidence
unless all 12 jurors agreed on the existence of a particular such
circumstance,“ Mills, 486 U.S. at 384.
V.
The Pennsylvania Supreme Court’s decision to reject Abu-Jamal’s mitigation
instruction claim involved an objectively unreasonable application of Mills.
On post-conviction review of this matter, the Pennsylvania Supreme Court
found no Mills violation. The Court reasoned:
The verdict slip employed in the instant case consisted of three pages. The
requirement of unanimity is found only at page one in the section wherein
the jury is to indicate its sentence. The second page of the form lists all
25
Case: 01-9014 Document: 003110511943 Page: 25 Date Filed: 04/26/2011
the statutorily enumerated aggravating circumstances and includes next to
each such circumstance a designated space for the jury to mark those
circumstances found. The section where the jury is to checkmark those
mitigating circumstances found, appears at page three and includes no
reference to a finding of unanimity. Indeed, there are no printed
instructions whatsoever on either page two or page three. The mere fact that
immediately following that section of verdict slip, the jurors were required
to each sign their name is of no moment since those signature lines
naturally appear at the conclusion of the form and have no explicit
correlation to the checklist of mitigating circumstances. As such, we cannot
conclude, as Appellant urges, that the structure of the form could lead the
jurors to believe that they must unanimously agree on mitigating evidence
before such could be considered. Moreover, verdict slips similar to that
employed in the instant matter have been held by our court not to violate
the dictates of Mills.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 119 (Pa. 1998).
The Pennsylvania Supreme Court focused exclusively on the verdict form and
reached its conclusion without considering the entire jury charge.
Significantly, the court did not evaluate or address the trial judge’s oral
instructions. See id. As a consequence, the court did not consider whether
the
26
Case: 01-9014 Document: 003110511943 Page: 26 Date Filed: 04/26/2011
language „a verdict must be a sentence of death . . . if the jury
unanimously finds one or more aggravating circumstances which outweigh any
mitigating circumstances,“ would create a substantial probability the jury
had understood the instructions to preclude consideration of mitigating
circumstances that were not agreed to by all twelve members of the jury. Nor
did the court consider the effect on the jury of being instructed
identically and contemporaneously with respect to the making of individual
determinations regarding mitigating and aggravating circumstances. Moreover,
although the court rejected the claim that the „structure of the form could
lead the jurors to believe that they must unanimously agree on mitigating
evidence before such could be considered,“ id., it conducted an incomplete
analysis of only a portion of the verdict form, rather than the entire form.
The court did not consider whether the language „[w]e, the jury, have found
unanimously . . . one or more aggravating circumstances which outweigh any
mitigating circumstances,“ would create a substantial probability the jury
had applied the form in violation of Mills, nor did the court address the
likely effect on the jury of having to choose aggravating and mitigating
circumstances from visually identical lists and represent its findings as to
each in an identical manner. Accordingly, the Pennsylvania Supreme Court
failed to evaluate whether the complete text of the verdict form, together
with the jury instructions, would create a substantial probability the jury
believed both aggravating and mitigating circumstances must be found
unanimously. See id. For these reasons, the Pennsylvania Supreme Court’s
application of Mills was objectively unreasonable.
27
Case: 01-9014 Document: 003110511943 Page: 27 Date Filed: 04/26/2011
VI.
Like the Mills Court, „[a]lthough we are hesitant to infer too much about
the . . . verdict form from . . . well-meant efforts to remove ambiguity
from the State’s capital sentencing scheme, we cannot avoid noticing . . .
significant changes effected in instructions to the jury.“ 486 U.S. at 382.
On February 1, 1989, the Pennsylvania Supreme Court adopted a uniform
sentencing verdict form for capital cases. See Pa. R. Crim P. 358A
(effective July 1, 1989). The new form, promulgated shortly after Mills was
decided on June 6, 1988, „reflects the requirement that jurors not be
prevented from considering all evidence in mitigation,“ Mills, 486 U.S. at
382, and makes explicit that unanimity is not required in determining the
existence of mitigating circumstances. The relevant portion of the revised
form reads:
II. SENTENCING VERDICT AND FINDINGS
If you have reached a unanimous verdict, complete this part of the form.
In Section A, indicate whether the sentencing verdict is death or life
imprisonment. If the sentence is death, indicate the basis for that verdict
by completing Section B. If the sentence is life imprisonment, indicate the
basis for that verdict by completing Section C.
A. We, the jury, unanimously sentence the defendant to (check one):
______ Death
28
Case: 01-9014 Document: 003110511943 Page: 28 Date Filed: 04/26/2011
______ Life Imprisonment
B. The findings on which the sentence of death is based are (check one):
______1. At least one aggravating circumstance and no mitigating
circumstance.
The aggravating circumstance(s) unanimously found (is) (are):
______.
______2. One or more aggravating circumstances which outweigh(s) any
mitigating circumstance(s).
The aggravating circumstance(s) unanimously found (is) (are):
______.
The mitigating circumstance(s) found by one or more of us (is) (are):
______.
C. The findings on which the sentence of life imprisonment is based are
(check one):
______1. No aggravating circumstance exists.
______2. The mitigating circumstance(s) (is) (are) not outweighed by the
aggravating circumstance(s).
The mitigating circumstance(s) found by one or more of us (is) (are):
______.
The aggravating circumstance(s) unanimously found (is) (are):
______.
29
Case: 01-9014 Document: 003110511943 Page: 29 Date Filed: 04/26/2011
Pa. R. Crim P. 358A (emphasis added). The form used in Abu-Jamal’s trial
simply read „[w]e, the jury, have found unanimously . . . one or more
aggravating circumstances which outweigh any mitigating circumstances. The
aggravating circumstance(s) is/are __. The mitigating circumstance(s) is/are
__.“ By contrast, the revised uniform verdict slip states „[t]he mitigating
circumstance(s) found by one or more of us (is) (are),“ thereby making clear
that, although aggravating circumstances must be found unanimously,
mitigating evidence need not be found unanimously in order to be considered
by individual jurors during the weighing and balancing process. The
Pennsylvania Suggested Standard Criminal Jury Instructions were also amended
to remove ambiguity with respect to the consideration of mitigating evidence
during the weighing and balancing process. See Pennsylvania Suggested
Standard Criminal Jury Instructions §15.2502H(3) (2006). The new instruction
reads, in relevant part:
When voting on the general findings, you are to regard a particular
aggravating circumstance as present only if you all agree that it is
present. On the other hand, each of you is free to regard a particular
mitigating circumstance as present despite what other jurors may believe.
This is different from the general findings to reach your ultimate sentence
of either life in prison or death. The specific findings as to any
particular aggravating circumstance must be unanimous. All of you must agree
that the Commonwealth has proven it beyond a reasonable doubt. That
30
Case: 01-9014 Document: 003110511943 Page: 30 Date Filed: 04/26/2011
is not true for any mitigating circumstance. Any circumstance that any juror
considers to be mitigating may be considered by that juror in determining
the proper sentence. This different treatment of aggravating and mitigating
circumstances is one of the law’s safeguards against unjust death sentences.
It gives a defendant the full benefit of any mitigating circumstances. It is
closely related to the burden of proof requirements. Remember, the
Commonwealth must prove any aggravating circumstance beyond a reasonable
doubt while the defendant only has to prove any mitigating circumstance by a
preponderance of the evidence. Your final sentence—life imprisonment or
death—must be unanimous. All of you must agree that the sentence should be
life imprisonment or that the sentence should be death because there is at
least one aggravating circumstance and no mitigating circumstance or because
the aggravating circumstance or circumstances outweigh the mitigating
circumstance or circumstances found by any juror.
Id. These clarifications highlight the ambiguity at issue in this case and
on their own serve at least to suggest the substantial probability that
„some jurors were prevented from considering `factors which may call for a
less severe penalty.'“ Mills, 486 U.S. at 376 (quoting Lockett v. Ohio, 438
U.S. 586, 605 (1978)). Accordingly, „[w]e can and do
31
Case: 01-9014 Document: 003110511943 Page: 31 Date Filed: 04/26/2011
32
infer from these changes at least some concern . . . that juries could
misunderstand the previous instructions as to unanimity and the
consideration of mitigating evidence by individual jurors.“ Id. at 382.
VII.
For the foregoing reasons, we will affirm the District Court’s grant of
relief on the mitigation instruction claim. As the District Court noted, the
„Commonwealth of Pennsylvania may conduct a new sentencing hearing in a
manner consistent with this opinion within 180 days of the Order
accompanying this [opinion], during which period the execution of the writ
of habeas corpus will be stayed, or shall sentence [Abu-Jamal] to life
imprisonment.“ Abu-Jamal, 2001 WL 1609690, at *130.
Case: 01-9014 Document: 003110511943 Page: 32 Date Filed: 04/26/2011
______________________________________________________

Von: „peter ulrich lehner“ <>
An: „Wiener Komitee Solidarität mit Mumia Abu-Jamal“ < mumia@labournetaustria.at >
Betreff: WG: [MumiaNYC]

PHILADELPHIA ……..

BREAKING NEWS ON MUMIA

(PHILLY INQUIRER)

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von info@freemumia.com
Gesendet: Dienstag, 26. April 2011 20:10

Betreff: [MumiaNYC]

PHILADELPHIA ……..BREAKING NEWS ON MUMIA (PHILLY
INQUIRER)
Abu-Jamal gets chance to escape death row

By Nathan Gorenstein

INQUIRER STAFF WRITER

Mumia Abu-Jamal was awarded a new sentencing hearing today by the Third
Circuit Court of Appeals, but an appeal to the U.S. Supreme Court appears
likely by the district attorney.

In the 32-page decision issued by the court, it accepted defense arguments
that the jury instructions at his original 1982 trial were unclear.

The decision does not give him a new trial on the murder charge; his
conviction remains in effect.

But Philadelphia District Attorney Seth Williams issued a statement that,
„granting this new sentencing hearing is contrary to clearly established
precedent of the United States Supreme Court, and we are now considering
whether to seek further review of today’s decision in the Supreme Court.“

Abu-Jamal remains on death row at the state prison in Waynesburg in
southwest Pennsylvania for the murder of police officer Daniel Faulkner. His
legal team argued that confusing legal instructions to the 1982 jury
encouraged execution rather than a life sentence.

His attorneys said today the Third Circuit decision confirmed a
„constitutional“ error in Abu-Jamal’s sentencing.

The long-running legal review is typical for capital cases in Pennsylvania,
where some 220 people are on death row but the last execution came in 1999 –
only after the inmate, the infamous killer Gary Heidnik, withdrew his
appeal.

At the root of Abu-Jamal’s argument is the contention that jurors may have
been confused by how the word „unanimously“ was used on the verdict sheet.

In capital cases, jurors first have to check a box to declare whether they
reached a unanimous guilty verdict.

Then have to declare whether they found any „mitigating“ circumstances that
might favor a life sentence rather than the death penalty.

Jurors do not have to unanimously agree on which mitigating circumstance to
consider, but Abu-Jamal’s attorneys say the written instructions in 1982 did
not make that clear.

Judith Ritter, the Widner Law professor who argued the case, noted that
Pennsylvania courts have abandoned the „the confusing and misleading
instructions and verdict slip that were relied on in Mr. Abu-Jamal’s trial.“

„Courts now use clear and unambiguous language to advise sentencing juries
about their ability to consider evidence that favors a life verdict. Mr.
Abu-Jamal is entitled to no less constitutional protection,“ she said.

The Third Circuit court agreed with Abu-Jamal in 2008, but Philadelphia
prosecutors appealed to the U.S. Supreme Court, which tossed the case back
for reconsideration.

In the new decision, the court appeared to uphold its 2008 conclusion.

_____

Contact staff writer Nathan Gorenstein at 215-854-2797 or
<mailto: ngorenstein@phillynews.com

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Von: „peter ulrich lehner“ <>
An: „Wiener Komitee Solidarität mit Mumia Abu-Jamal“ < mumia@labournetaustria.at >
Betreff: WG: [MumiaNYC]

NAACP LEGAL DEFENSE & EDU. FUND (LDF)

PRESS RELEASE ON 3RD CIRUIT DECISION
Datum: Dienstag, 26. April 2011 21:42

liebe grüße/eigeia sou/selam/salve/ciao/zdravo/shalom/salam/schukar
di/saludos carinos/srdecné pozdravy/distinti saluti/avec compliments/med
hjärtliga hälsingnar/tisztelettel/z powazaniem/with compliments/amikajn
salutojn

ulo

_____

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Gesendet: Dienstag, 26. April 2011 21:26

Betreff: [MumiaNYC] NAACP LEGAL DEFENSE & EDU. FUND (LDF) PRESS RELEASE ON
3RD CIRUIT DECISION

NAACP Legal Defense & Educational Fund, Inc.
For Immediate Release
April 26, 2011
Contact: Melquiades Gagarin, mgagarin@naacpldf.org
< , 212-965-2783
Mumia Abu-Jamal’s 1982 Death Sentence is Again Declared Unconstitutional
The United States Court of Appeals for the Third Circuit has unanimously
declared that Mumia Abu-Jamal’s death sentence is unconstitutional. In
today’s decision, the Court of Appeals reaffirmed its 2008 finding that Mr.
Abu-Jamal’s sentencing jury was misled about the process for considering
evidence supporting a life sentence. The Court found that, in violation of
the United States Supreme Court’s 1988 decision in Mills v. Maryland, the
jury was improperly led to believe that that it could only consider
unanimously agreed upon evidence favoring a life verdict. This mistake
rendered Mr. Abu-Jamal’s death sentence fundamentally unfair. The NAACP
Legal Defense & Educational Fund, Inc. (LDF) and Professor Judy Ritter of
Widener Law School represent Mr. Abu-Jamal in this appeal of his 1982
conviction and death sentence for the murder of a police officer in
Philadelphia, Pennsylvania.
„This decision marks an important step forward in the struggle to correct
the mistakes of an unfortunate chapter in Pennsylvania history,“ said John
Payton, Director-Counsel of LDF. „Again acknowledging the existence of clear
constitutional error in Mr. Abu-Jamal’s trial, the Court of Appeals‘
decision enhances confidence in the criminal justice system and helps to
relegate the kind of unfairness on which this death sentence rested to the
distant past.“
Prof. Ritter noted that, „Pennsylvania long ago abandoned the confusing and
misleading instructions and verdict slip that were relied on in Mr.
Abu-Jamal’s trial in order to prevent unfair and unjust death sentences.
Courts now use clear and unambiguous language to advise sentencing juries
about their ability to consider evidence that favors a life verdict. Mr.
Abu-Jamal is entitled to no less constitutional protection.“
Mr. Abu-Jamal he has been on death row in Pennsylvania for 29 years.
To speak with counsel for Mr. Abu-Jamal, please contact Melquiades Gagarin,
mgagarin@naacpldf.org  , 212-965-2783.