A Supreme Court blow to anti-death penalty icon Mumia Abu-Jamal

Confusion in sentencing?

Both a federal judge and a federal appeals court had ruled that the jury that sentenced Abu-Jamal to death might have been confused over how to properly assess mitigating evidence during the penalty phase of the trial.

At issue was whether jurors might have thought that they had to unanimously agree on each piece of mitigating evidence being weighed against the aggravating circumstances justifying a death sentence.

There is no unanimity requirement for jurors considering mitigating circumstances. They are free to consider anything that might weigh against a death sentence.

In contrast, all jurors must agree on any aggravating factors. In addition, jurors must unanimously decide that the prosecution has proved beyond a reasonable doubt that those aggravating factors outweigh any mitigating circumstances.

The 'Mills standard'

In some cases jurors have been given faulty instructions by the trial judge that jurors must unanimously agree on the mitigating factors. Such instructions are inaccurate and unconstitutional under a 1988 Supreme Court decision called Mills v. Maryland.

In the Mills case the high court ruled that a defendant must receive a new sentencing hearing whenever there is a “substantial possibility that reasonable jurors … well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed.”

In the Abu-Jamal case, the federal appeals court ruled that Abu-Jamal should either receive a new sentencing hearing or have his death sentence be changed to a life sentence.

Last Tuesday, the high court decided a similar case, Smith v. Spisak. The case was like Abu-Jamal’s in that a state court had upheld the jury instructions and verdict form, but a federal appeals court overturned that ruling after concluding that there was a violation of the Mills standard.

Supreme Court's decision

In the Spisak case, the high court reversed the federal appeals court in a decision that will make it harder in future cases to argue possible juror confusion short of a judge actually giving the wrong instructions to the jury.

“The instructions did not say that the jury must determine the existence of each individual mitigating factor unanimously,” Justice Stephen Breyer wrote in the majority opinion last week. “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.”

Justice Breyer added: “In our view the instructions and verdict forms did not clearly bring about, either through what they said or what they implied, the circumstances that Mills found critical.”

It will now be up to the Third Circuit to apply this new, tougher test to the facts of Abu-Jamal’s case.

The case is Beard v. Abu-Jamal.

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