Mumia Abu-Jamal Legal Update

Legal Update ­ December 11, 2004 meeting in New York City

(Reviewed by Attorney Robert R. Bryan)

Mumia’s case is simultaneously being heard in two different courts
presently: the United States Court of Appeals for the Third Circuit
(appellate court) and the Pennsylvania State Court of Common Pleas
(trial court), both of which sit in Philadelphia.

The Third Circuit (the appellate court)

Procedure

In July 2004, both Robert Bryan and the state of Pennsylvania
submitted
briefs on the effect of the 06-24-04 United States Supreme Court
decision in Beard v. Banks on Mumia’s case. On 07-29-04, Robert filed
a
memorandum of law on the affect of Banks for Mumia, and requested a
stay
of the proceedings in this matter pending the outcome of the issues
simultaneously being litigated in the Pennsylvania trial court before
Judge Pamela Dembe. On 10-19-04, the appellate court entered an order
denying the 07-29-04 request from Robert Bryan for a stay of the
proceedings. What this means is that the issues currently pending
before
the appellate court are moving forward. The next step involves
putting
these issues on what is called a “briefing schedule,” which has yet
to
be done by the appellate court. In other words, Robert has yet to
receive notice from the appellate court as to when briefs will be due
on
the issues currently before it.

Robert initially filed for a stay of these proceedings because of the
active litigation pending before Judge Dembe in the trial court in
Philadelphia, and argued against having to litigate one case in two
courts at the same time. The matters before Judge Dembe cannot be
resolved by the Third Circuit, but must first be addressed at the
trial
level in the state system.

Additionally, Robert Bryan is currently working on a brief to be
filed
with this court requesting that additional issues be certified for
appeal from district court Judge Yohn’s 2001 habeas decision, which
certified only one claim for relief: racial bias in jury selection,
also
known as the Batson claim. Mumia’s former attorneys filed the
original
motion on this issue, which Robert plans to supplement, requesting
that
additional issues be certified on appeal to the appellate court. What
are the possible outcomes? There are four possibilities: the Third
Circuit could (1) deny this request outright, (2) only allow a few of
the 29 issues raised by Mumia’s writ for habeas corpus, (3) send the
case back to Judge William Yohn to apply the standard set out in
Miller-El (see below), or (4) wait for Mumia’s Batson issue to be
resolved before moving forward on this one.

More immediately, Robert plans to file a motion for remand back down
to
the district court on the issues raised by Terri Maurer-Carter’s
affidavit. Terri Maurer-Carter is the court reporter who overheard
trial
judge Albert Sabo—who presided over Mumia’s 1982 “trial,” and 1995,
1996, and 1997 Post-Conviction Relief Act (PCRA) appellate hearings
in
Philadelphia—say: “Yeah, and I’m going to help ‘em [the prosecution]
fry
the nigger.”


Issues

There are two issues before the appellate court, which will be
explained
below.

First, what did the United States Supreme Court decide in Beard v.
Banks, and how does that affect Mumia?

In July 2004, the appellate court allowed both Robert Bryan and the
state of Pennsylvania to submit briefs on the affect of Banks on
Mumia’s
case. The issue was whether Mumia’s case was affected by the recent
United States Supreme Court decision in Beard v. Banks. George Banks
was
sentenced to death in 1982. After his state appeals were exhausted,
he
sought habeas relief in federal district court and was denied. On
appeal
to the Third Circuit Court of Appeals, Banks’ death sentence was
found
to be unconstitutional, and the decision of the district court was
reversed. The appellate court held that jury instructions during
Banks’
sentencing led jurors to believe they could not vote against the
death
penalty unless they all agreed on mitigating evidence—evidence that
would have inclined them not to vote for a death sentence. The
appellate
court reasoned that these jury instructions violated the United
States
Supreme Court's 1988 ruling in Mills v. Maryland.

However, the Third Circuit did not decide whether the rule of Mills
was
retroactive. In other words, could Banks benefit from the United
States
Supreme Court's 1988 decision in Mills where his conviction became
final
in 1987? Thus, when Banks’ case was next brought before the United
States Supreme Court on appeal, the Court sent the case back down to
the
Third Circuit to decide this issue. The appellate court then decided
that the rule created by the Supreme Court in Mills was retroactive
and
that Banks could benefit. The case was again appealed to the Supreme
Court and on 06-24-04, the United States Supreme Court reversed the
decision of the Third Circuit and declared that the rule of law
created
in Mills was not retroactive. In a 5-to-4 decision written by Justice
Clarence Thomas, the Court found that the rule announced in
Mills—that
sentencing schemes could not prevent jurors from considering
mitigating
evidence that had not been accepted unanimously when deciding whether
to
apply the death penalty—was a new rule of law that was not a
“watershed
rule of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Finding that the rule of Mills
was
not a “watershed rule,” the United States Supreme Court said that
Mills
could not be applied retroactively and that Banks’ conviction was
constitutional.

What does this mean? Basically, it means that a “Mills challenge” to
a
death sentence is only applicable where the sentencing relief sought
is
for a person whose conviction became final after the rule of Mills
was
decided in 1988. Seemingly, the Court has said that relief is
available
to those whose convictions post-date Mills, creating what is called
in
the law a “bright line rule.” Robert Bryan argued in his brief that
Mumia benefits from the rule of Mills because his conviction became
final in 1990. The state of Pennsylvania has argued that Mumia should
not get the benefit of Mills, despite this seemingly bright line
rule,
and there have been several exchanges back and forth (one as recent
as
10-31-04) through the filing of papers with the appellate court on
this
issue. This matter is still pending.

If Mumia wins on this issue, that he does get the benefit of Mills,
his
case will go back to the trial level in the Pennsylvania Court of
Common
Pleas. The state of Pennsylvania will have two choices, either (1)
sentence Mumia to life imprisonment, or (2) grant Mumia a full jury
trial on the issue of whether he should be sentenced to life
imprisonment or death. A full jury trial, or penalty-phase hearing,
means that Mumia is back to 1982 in terms of the issue of sentencing.
The state of Pennsylvania will put on evidence of guilt and
aggravation
to argue for a death sentence. Robert Bryan will then be able to put
on
evidence of innocence and mitigation. However, the only decision the
jury can make should there be a new penalty-phase hearing is life
imprisonment or death. If Mumia loses, then the state of Pennsylvania
can sign another death warrant, side-stepping Yohn’s 2001 habeas
decision.

However, there still remains another issue pending before the
appellate
court: the issue of jury selection, Mumia’s Batson claim.

Second, what is Mumia’s Batson claim? The issue of racial bias in
jury
selection, Mumia’s Batson claim, is also still pending before the
appellate court. This issue was the only issue Judge Yohn allowed to
be
appealed to the Third Circuit. In other words, this is the only
guilt-phase appellate issue Yohn certified to go before the appellate
court.

Recently, the United State Supreme Court heard arguments in the case
of
Thomas Miller-El. A summary of that case from an article in the
12-05-04
NYT is as follows:

“In an 8-to-1 decision last year, the Supreme Court instructed the
appeals court to rethink its "dismissive and strained interpretation"
of
the proof in the case, and to consider more seriously the substantial
evidence suggesting that prosecutors had systematically excluded
blacks
from Mr. Miller-El's jury. Prosecutors used peremptory strikes to
eliminate 10 out of 11 eligible black jurors, and they twice used a
local procedure called a jury shuffle to move blacks
lower on the list of potential jurors, the decision said. The jury
ultimately selected, which had one black member, convicted Mr.
Miller-El, a black man who is now 53, of killing a clerk at a Holiday
Inn in Dallas in 1985.

Instead of considering much of the evidence recited by the Supreme
Court
majority, the appeals court engaged in something akin to plagiarism.
In
February, it again rejected Mr. Miller-El's claims, in a decision
that
reproduced, virtually verbatim and without attribution, several
paragraphs from the sole dissenting opinion in last year's Supreme
Court
decision, written by Justice Clarence Thomas.”

According to Attorney Bryan, Miller-El deals with two issues: (1)
racism
in jury selection and (2) the certification of appellate issues by
federal district courts. Regarding racial bias in jury selection,
should
the United States Supreme Court decide in favor of Miller-El on this
issue, Mumia’s position will be strengthened. Furthermore, there is
also
good case law in the Third Circuit on this issue that should also
support Mumia’s case. As for the certification of issues for appeal
by
the lower federal courts, the Supreme Court appears to be saying that
these courts have too high a standard. In other words, they have made
it
such that unless a petitioner can prove a certain win on appeal, then
that issue will not move forward. But if a certain win was apparent,
then there would be no need for an appeal because the district court
would have granted relief in the first instance, right? If Miller-El
succeeds on this issue, then Robert will be in a better position to
argue that Judge Yohn violated the proper standard and set the bar to
high for his certificates of appealability.

If Mumia wins his Batson claim, there will be a completely new trial,
meaning there will be a new trial to decide guilt or innocence. If
there
is an acquittal, Mumia will be released. If Mumia is found guilty,
there
will be a penalty-phase hearing.


The Pennsylvania State Court of Common Pleas (trial court)

Procedure

With regards to the newly discovered evidence presented to this court
through the affidavits of William Pate and Yvette Williams, Robert
Bryan
has requested a hearing on the issues this evidence raises in
relation
to Mumia’s conviction. Currently pending before Judge Dembe is a
motion
to dismiss that was filed by the state of Pennsylvania. This new
evidence has not been presented in federal court because the issues
it
raises have not yet been resolved by Dembe in the state court system.
Robert Bryan has replied to this motion, and was forced by Dembe in
September 2004 to qualify himself to handle a capital case, despite
his
years of experience in these matters. Robert has handled hundreds of
capital cases. Interestingly, there is a new state law in
Pennsylvania
that requires defense attorneys handling capital litigation to
demonstrate that they are qualified to handle such matters, but that
law
was not in effect when Dembe challenged Robert’s ability to handle
Mumia’s case.

If Judge Dembe decides in Mumia’s favor, then he would get a new
trial.
If Dembe denies relief, then Robert will appeal that decision through
to
the Pennsylvania Supreme Court. It should be noted that if Dembe or
the
Pennsylvania appellate courts grants Mumia relief, there will be no
need
to remain in federal court—another reason why Robert has argued
against
the lifting of the stay by the Third Circuit.

Issues

There are two issues before the trial court: the fabricated
confession
of Pricilla Durham and that the false testimony the state of
Pennsylvania put on during the trial through their key witness
Cynthia
White.

William Pate is the half-brother of Pricilla Durham. In his
affidavit,
he says that Durham lied about the confession she claimed Mumia made
at
the hospital on the night he was shot and Faulkner died.

Yvette Williams said in her affidavit that Cynthia White was not
present
during the shooting, but appeared sometime thereafter.

(end)



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