Supr Ct reverses fed'l appeals ct ruling that required new sentencing hearing for Mumia??

See attached.

Philly is having an action. Are we gonna do the same?

No. 08-652
Title:
Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al., Petitioners
v.
Mumia Abu-Jamal
Docketed: November 18, 2008
Lower Ct: United States Court of Appeals for the Third Circuit
Case Nos.: (01-9014)
Decision Date: March 27, 2008
Rehearing Denied: July 22, 2008

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Oct 6 2008 Application (08A315) to extend the time to file a petition for a writ of certiorari from October 20, 2008 to November 19, 2008, submitted to Justice Souter.
Oct 14 2008 Application (08A315) granted by Justice Souter extending the time to file until November 19, 2008.
Nov 14 2008 Petition for a writ of certiorari filed. (Response due December 18, 2008)
Nov 28 2008 Order extending time to file response to petition to and including January 21, 2009.
Jan 13 2009 Order further extending time to file response to petition to and including February 13, 2009.
Feb 13 2009 Brief of respondent Mumia Abu-Jamal in opposition filed.
Feb 13 2009 Motion for leave to proceed in forma pauperis filed by respondent.
Feb 25 2009 DISTRIBUTED for Conference of March 20, 2009.
Mar 2 2009 Reply of petitioners Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. filed. (Distributed)
Mar 18 2009 Supplemental brief of petitioners Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al. filed. (Distributed)
Jan 12 2010 DISTRIBUTED for Conference of January 15, 2010.
Jan 19 2010 Motion for leave to proceed in forma pauperis filed by respondent GRANTED.
Jan 19 2010 Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Smith v. Spisak, 558 U.S. ____ (2010).


~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioners:
Ronald Eisenberg Deputy District Attorney (215) 686-5700

District Attorney's Office

Three South Penn Square

Philadelphia, PA 19107-3499

ronald.eisenberg [at] phila.gov
Party name: Jeffrey A. Beard, Secretary, Pennsylvania Department of Corrections, et al.
Attorneys for Respondent:
Robert R. Bryan Law Offices of Robert R. Bryan (415) 292-2400
Counsel of Record 2088 Union Street, Suite 4

San Francisco, CA 94123-4117

RobertRBryan [at] aol.com
Party name: Mumia Abu-Jamal

(Bench Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SMITH, WARDEN v. SPISAK
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 08–724. Argued October 13, 2009 —Decided January 12, 2010
After the Ohio courts sentenced respondent Spisak to death and denied
his claims on direct appeal and collateral review, he filed a federal
habeas petition claiming that, at his trial’s penalty phase, (1) the instructions
and verdict forms unconstitutionally required the jury to
consider in mitigation only those factors that it unanimously found to
be mitigating, see Mills v. Maryland, 486 U. S. 367, and (2) his counsel’s
inadequate closing argument deprived him of effective assistance
of counsel, see Strickland v. Washington, 466 U. S. 668. The
District Court denied the petition, but the Sixth Circuit accepted both
arguments and ordered relief.
Held:
1. Because the state court’s upholding of the mitigation jury instructions
and forms was not “contrary to, or . . . an unreasonable application
of, clearly established Federal law, as determined by [this]
Court,” 28 U. S. C. §2254(d)(1), the Sixth Circuit was barred from
reaching a contrary decision. The Court of Appeals erred in holding
that the instructions and forms contravened Mills, in which this
Court held that the jury instructions and verdict forms at issue violated
the Constitution because, read naturally, they told the jury that
it could not find a particular circumstance to be mitigating unless all
12 jurors agreed that the mitigating circumstance had been proved to
exist, 486 U. S., at 380–381, 384. Even assuming that Mills sets
forth the pertinent “clearly established Federal law” for reviewing the
state-court decision in this case, the instructions and forms used here
differ significantly from those in Mills: They made clear that, to recommend
a death sentence, the jury had to find unanimously that
each of the aggravating factors outweighed any mitigating circumstances,
but they did not say that the jury had to determine the existence of each individual mitigating factor unanimously. Nor did they
say anything about how—or even whether—the jury should make individual
determinations that each particular mitigating circumstance
existed. They focused only on the overall question of balancing the
aggravating and mitigating factors, and they repeatedly told the jury
to consider all relevant evidence. Thus, the instructions and verdict
forms did not clearly bring about, either through what they said or
what they implied, the constitutional error in the Mills instructions.
Pp. 2–9.
2. Similarly, the state-court decision rejecting Spisak’s ineffectiveassistance-
of-counsel claim was not “contrary to, or . . . an unreasonable
application” of the law “clearly established” in Strickland.
§2254(d)(1). To prevail on this claim, Spisak must show, inter alia,
that there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, supra, at 694. Even assuming that the closing argument
was inadequate in the respects claimed by Spisak, this Court
finds no “reasonable probability” that a better closing argument
without these defects would have made a significant difference. Any
different, more adequate closing argument would have taken place in
the following context: Spisak’s defense at the trial’s guilt phase consisted
of an effort by counsel to show that Spisak was not guilty by
reason of insanity. Counsel, apparently hoping to demonstrate
Spisak’s mentally defective condition, called him to the stand, where
he freely admitted committing three murders and two other shootings
and repeatedly expressed an intention to commit further murders
if given the opportunity. In light of this background and for the
following reasons, the assumed closing argument deficiencies do not
raise the requisite reasonable probability of a different result but for
the deficient closing. First, since the sentencing phase took place
immediately after the guilt phase, the jurors had fresh in their minds
the government’s extensive and graphic evidence regarding the killings,
Spisak’s boastful and unrepentant confessions, and his threats
to commit further violent acts. Second, although counsel did not
summarize the mitigating evidence in great detail, he did refer to it,
and the defense experts’ more detailed testimony regarding Spisak’s
mental illness was also fresh in the jurors’ minds. Third, Spisak does
not describe what other mitigating factors counsel might have mentioned;
all those he proposes essentially consist of aspects of the
“mental defect” factor that the defense experts described. Finally, in
light of counsel’s several appeals to the jurors’ sense of humanity, it
is unlikely that a more explicit or elaborate appeal for mercy could
have changed the result, either alone or together with the foregoing
circumstances. The Court need not reach Spisak’s claim that
§2254(d)(1) does not apply to his claim, because it would reach the
same conclusion even on de novo review. Pp. 9–16.
512 F. 3d 852, reversed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, ALITO, and SOTOMAYOR,
JJ., joined, and in which STEVENS, J., joined as to Part III.
STEVENS, J., filed an opinion concurring in part and concurring in the
judgment.

Pam Africa commented in SF Bayview on January 21, 2010 at
http://www.sfbayview.com/2010/pam-africa-on-the-supreme-court-ruling-against-mumia/
and it is reposted at:
http://www.indybay.org/newsitems/2010/01/21/18635870.php
and here it is:

Pam Africa, chairwoman of International Concerned Family and Friends of Mumia Abu Jamal, was a key organizer of the large demonstration outside the 3rd Circuit Court of Appeals when Mumia’s case was heard there on May 17, 2007. Now the Supreme Court has ordered the case back to that court. – Photo: Minister of Information JROn Tuesday, Jan. 19, the U.S. Supreme Court ruled against political prisoner Mumia Abu Jamal and granted the Philadelphia DA’s petition for a writ of certiorari. Basically, the Supreme Court went against the lower federal circuit court’s 2001 and 2008 rulings, which granted a new sentencing phase jury trial if the death penalty was to be reinstated in Jamal’s case. Now the case goes back down to the 3rd Circuit Court of Appeals, who will decide whether they will re-impose the death penalty without the jury trial.

In a recent interview with the Block Report, Mumia spoke about the Spisak case, in which the death penalty has since been reinstated for the white supremacist murderer Frank Spisak. The question is how this will affect Mumia’s case since they both dealt with the Mills issue, which addresses confusing jury instructions.

We are now at the highest level of Code Red in the case of Mumia Abu Jamal. The people must come to this tireless souljah’s defense.

I interviewed Pam Africa, the chairwoman of the International Concerned Family and Friends of Mumia Abu Jamal, about the direction of the “Free Mumia” movement at this critical time …

M.O.I. JR: Now that we have this information on how the Supreme Court wants to move on Mumia’s case, how is the International Concerned Family and Friends of Mumia Abu Jamal moving? And what do they need from the people?

Pam Africa: One thing that people need to understand is that this is a very crucial time. What we’re doing today, we’re having a press conference in front of the District Attorney’s Office here in Philadelphia.

This is the first Black DA in the city of Philadelphia. His name is Seth Williams, who ran on the platform that when he became district attorney, he would execute Mumia. That’s why we’re having the demonstration there, because it eventually will end up in the hands of the district attorney.

The district attorney are the ones that are applying for this death sentence on Mumia. I know that they are battling Mills (the case concerning jury instructions) and everything else, but people must stay focused. The time is very short in dealing with the case of Mumia.

Seth Williams celebrates his victory in the Nov. 3, 2009, election that made him Philadelphia’s first Black district attorney. – Photo: Laurence Kesterson, Philadelphia InquirerPeople must organize around the world. There are two petitions that are happening: One is by a group of people over in Germany with Mumia’s attorney, Robert Bryan, calling on President Obama to get involved in the case and get Mumia a new case, because he never had a trial, really.

But we’re calling on the attorney general. When I say we, I’m saying there are several groups and organizations that is spearheaded by the New York (Free Mumia Abu-Jamal) Coalition that is calling on the attorney general, because what we’re pointing out is that Mumia cannot get any fairness whatsoever.

Brewing right here is another example of what it is we’re talking about. Mumia cannot get any fairness in this court system, so we’re calling on the U.S. attorney general to do a civil rights investigation into this case, because Mumia’s civil rights from the beginning to the end, and our civil rights as citizens of this United States who have pointed out the evidence very clearly (are threatened). That nobody can get around: Mumia is innocent. He is factually innocent.

And what we’re asking people to do is to sign both of the petitions on behalf of Mumia. The one that the attorney is putting out there, because when he petitions and all, Obama, Obama’s next move is that he has to go to the U.S. attorney general. And when he comes to the U.S. attorney general, he will fully know that our last person who signed the petition for the civil rights investigation was Skip Gates, who sat down and had a beer after he was beat up by the police, you know, at the White House. I’m saying, he signed the petition. We have people that are right in the ear of Obama and the attorney general.

And I want to point out very clearly, we have no hope whatsoever in the system. Our faith, Mumia’s faith, is in the people. Will the people rise up and do what is right? Shaka Sankofa is dead because the people didn’t consistently stay on top of these people when they did wrong.

Tookie Williams, when they executed him, when they murdered him in cold-blood when the movement was moving, it should’ve continued to move that way. There are magnificent things that are happening in California around the death penalty, but everybody must unite together and move as one up against this government for the sake of Brotha (Troy) Davis, for the sake of all the brothas that’s on death row right now.

Again there is Academics for Mumia, who are at Princeton University, who is having a meeting pulling academics together, and we’re asking the academics to sign both of these petitions while they educate people. I’m telling you people, we are not without the evidence. If you go to the website at Journalists for Mumia, if you go into the Bay View, you will find all of the evidence that you need to bring the system down to its knees.

Once again, do not be duped by time; time is running out. And I know that when this next step is made, as I understand, things might be like six months and then it will go to the DA. The time might be a little bit off, but we don’t have much time. It’s time for them people to get into them churches, make them ministers get up, make these politicians get up, you know, make the people rise up, as they did in 1999, when we did Millions for Mumia. The time is now for organizing, organizing with all of the strength that you have.

And I just want to thank people like the Partisan Defense Committee, Labor for Mumia, the Mobilization for Mumia, Millions for Mumia. These people have stayed steadfast, and if I haven’t mentioned the names of other people, there is a lot of individuals – JR and the Bay View – for keeping this issue up front in the people’s eye.

The time is now for organizing, organizing with all of the strength that you have. People must pull together to abolish the death penalty. Save this brotha who has been on the front lines, from deathrow, on every issue of social justice that there is.

And I will be down (in the Bay) on Feb. 18. I’ll be in California, from the 18th to the 23rd. I’m coming down there for the brotha of the San Francisco 8 (Francisco Torres’) hearing. I’m coming down there for Brotha JR’s hearing, and I wish I could be in LA when they bring this murderous cop (who murdered) Oscar Grant there, but I’m going to be pushing for people to get there – everybody who can.

This death sentence that was handed out to this brotha; we can’t allow it, people. And I’m saying y’all have been an example to all of the people around the world of resistance (of what can be done) when people be consistent at what they do. Y’all have had something done here when y’all had that murderous monster arrested. It must continue. This dude must sit on deathrow. That is where he needs to sit with all of the other people. And let people fight to get his behind off of deathrow.

You know, it can’t be enough said: People must pull together. You must abolish the death penalty because it is wrong, all the way across the board. We must support JR and all of the brothas and sistas that was arrested. This is what Mumia is pushing for; this is what we’re pushing for.

When we come to California, we’ll be having more information about Mumia. The movement is moving real fast, so please while you are organizing for everything, tell people that they must get into the streets in order to save this brotha who has been on the front lines, from deathrow, on every issue of social justice that there is.

Email POCC Minister of Information JR, Bay View associate editor, at blockreportradio [at] gmail.com and visit http://www.blockreportradio.com.
ALSO, GO TO
http://www.freemumia.com/
AND
http://www.freemumia.com/pressreleasesupremecourt.html
and
http://www.abu-jamal-news.com/article.php?name=usscdp

Los Angeles had a demonstration for Mumia and it is front and center at LA Indymedia as it should be on all Indymedia websites. See
http://la.indymedia.org/news/2010/01/234173.php
and
http://la.indymedia.org/news/2010/01/234224.php

Philadelphia Indymedia is following the story at
http://www.phillyimc.org/en/mumia-abu-jamal-supreme-court-decisionemergency-response-demo

We have a pro-death penalty president as always and a pro-death penalty district attorney of Philadelphia as always, and both happen to be black and Democrats. See
http://www.votesethwilliams.com/

Mumia was framed by Democrat District Attorney, Ed Rendell, who became Chair of the National Democratic Party in 2000 and was eventually elected to be mayor of Philadelphia and now is Governor of Pennsylvania. His wife is a federal judge on the Third Circuit Court of Appeals (conflict of interest). See
http://en.wikipedia.org/wiki/Ed_Rendell

THE QUESTIONS MUST BE ASKED:
1. Where is the black community of the US, numbering some 41 million people, most of whom support Mumia Abu-Jamal, unlike Seth Williams? This case is well known and when this writer handed out leaflets in San Francisco for Mumia, the support for Mumia and the knowledge of his case among the black population was 100% (and among white San Franciscans, the support for Mumia was almost non-existent. Being a white, native San Franciscan, I am ashamed).

2. Now that Barack Obama, who ran as a millionaire, warmonger, death penalty promoter, has finally shown himself to be a fraud so that the black voters of Massachusetts rejected him and his candidate for US Senate this past week, IS THE BLACK COMMUNITY FINALLY GOING TO VOTE RED (SOCIALIST) OR GREEN INSTEAD OF 90% DEMOCRAT OR 90% SIT AT HOME? We can sit at home if there are no reds or greens running for a position, but otherwise, we have to vote red or green if we want serious change that benefits the workingclass, including ABOLISHING THE DEATH PENALTY NOW.

Of course, THE ENTIRE ANTI-DEATH PENALTY COMMUNITY MUST BE ON HIGH ALERT. Some reality must be shed on the demographics of the US: The white, non-Hispanic European descendant population in the US is about 65% with a median age of 41, and declining rapidly. Lots of white are anti-death penalty, but WE ARE FEELING THE EFFECTS OF OLD AGE! The workingclass, which is overwhelmingly either African-American or Hispanic, must be mobilized. PLEASE DO NOT TELL ME IT CANNOT BE DONE. San Francisco has witnessed 5 horrifying football parades for which the workingclass rushes to take off from work to see the gladiators for this gambling racket, so I know it can be done.

WE, THE ANTI-DEATH PENALTY COMMUNITY OF THE WORLD, NEED PHONE NUMBERS TO CALL, FAX NUMBERS TO RECEIVE OUR FAXES, US MAIL ADDRESSES FOR SNAIL MAIL. Nazi USA must be put in the spotlight as being the backward anti-workingclass, racist cesspool it is, as all of Europe, most of Latin America including Mexico, and African countries such as South Africa and Ivory Coast have abolished the death penalty. The death penalty is a class weapon of terror against the workingclass, and in racist USA, it is also a racist legacy of slavery, today's lynching by the capitalist class.

Free Mumia Abu-Jamal
Tear Down the Prisons
Wall by Wall!

I came across Pam Africa's remarks subsequent to my initial posting. Thanks for reposting Pam's commentary.

Notice that, in the Spisak decision, the court doesn't discuss any specific facts on record in regard to jury instructions, and merely ANNOUNCES that the case was different from Mills! Why did the Supreme Court even bother to issue an opinion on the Spisak case if they couldn't be bothered to reveal their reasoning?

What a crock of BS!

So all the Third Circuit has to do, in order to deny Mumia a new sentencing hearing, is to imitate the Supreme Court's approach? Without discussing much less contemplating any evidence on record?

Not that I'm surprised at all. I'm just disgusted.

A lynching under any other name is still a lynching.