IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
_________________________________________
COMMONWEALTH OF PENNSYLVANIA,
Appellee,
No. 119 Cap. App. Dkt.
v.
MUMIA ABU-JAMAL,
a/k/a Wesley Cook,
Appellant.
_________________________________________
APPELLANT'S APPLICATION FOR LEAVE
TO CITE SUPPLEMENTAL AUTHORITIES
Appellant Mumia Abu-Jamal, through his attorneys, respectfully applies for leave to cite the following new authorities in support of his claims on appeal:
1. New Authority Concerning Mills v. Maryland Claim (Claim XXIII):
In support of his claim that "The Verdict Form Would Have Led Jurors To Believe Unanimity Was Required to Consider a Mitigating Circumstance," Appellant cites Frey v. Fulcomer, No. 95-9007, 1997 U. S. App. LEXIS 36792 (3d Cir. December 30, 1997) (holding jury instructions and verdict form substantially identical to those here unconstitutional) (copy attached as Exhibit 1).
2. New Authorities Concerning Constitutionality of Death Penalty (Claim XXIV):
In support of his claim that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment, Appellant cites (and requests this Court to judicially notice) the following authorities demonstrating "evolving standards of human decency that mark the progress of a maturing society." 1
1 Gregg v. Georgia, 428 U. S. 153, 173 (1976) (opinion of Stewart, Powell and Stevens, JJ.), quoting Trop v. Dulles, 356 U. S. 86, 101 (1958). See also Enmund v. Florida, 458 U. S. 782, 796 n. 22 (1982) ("climate of international opinion" is relevant in evaluating acceptability of a particular form of punishment) quoting Coker v. Georgia, 433 U. S. 584, 596 (1977).
A. Pennsylvania Bar Association Resolution Requesting A Moratorium On Capital Punishment in Pennsylvania (adopted October 31, 1997) (noting "Pennsylvania Department of Corrections statistics raise a serious concern that people of color and men are sentenced to death at a rate which substantially exceeds the rate at which Caucasians and women are sentenced to death," and calling for the "immediate cessation of any executions in the Commonwealth of Pennsylvania until such time as the fair and impartial administration of the death penalty can be ensured") (copy attached as Exhibit 2); and
B. Philadelphia Bar Association Resolution Calling For A Moratorium on Capital Punishment Until Such Time That Fairness In Its Administration Can Be Ensured (adopted November 25, 1997 by Board of Governors) (noting "a substantial risk, in Philadelphia and elsewhere, that the death penalty continues to be imposed in an arbitrary, capricious and discriminatory manner," and calling for "a moritorium on executions in Pennsylvania until such time as the fair and impartial administration of the death penalty can be ensured and the risk that innocent persons may be executed is minimized") (copy attached as Exhibit 3);
C. Statement of Pierre Sane, Secretary General of Amnesty International, Philadelphia, Pennsylvania, November 25, 1997 (noting that "Amnesty International is horrified that nine out of ten people sentenced to die in Philadelphia and more than sixty percent of people sentenced to die in the state of Pennsylvania, are African American," expressing concern about "the still pervasive pattern in Philadelphia of excluding African Americans from juries in capital cases," and noting that "Amnesty International fears that Mumia Abu-Jamal's original trial may have been contaminated by the deep-rooted racism that appears to taint the application of the death penalty in Pennsylvania") (copy attached as Exhibit 4).
Respectfully submitted,
LEONARD I. WEINGLASS
6 West 20th St., Suite 10A
New York, New York 10010
(212) 807-8646
DANIEL R. WILLIAMS
Moore & Williams, LLP
740 Broadway Suite 500
New York, New York 10003
(212) 353-9587
JONATHAN B. PIPER
Sonnenschein, Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
(312) 876-8000
RACHEL H. WOLKENSTEIN
67 Wall Street, Suite 2411
New York, New York 10005
(212) 406-4252
STEVEN W. HAWKINS
National Conference of Black Lawyers
918 F Street, N.W.
Washington, D.C. 20004
(202) 347-2411
DAVID RUDOVSKY, Local Counsel (Bar No. 15168)
Kairys, Rudovsky, Kalman & Epstein
924 Cherry Street, Suite 500
Philadelphia, PA 19107
(215) 925-4400
Attorneys for Appellant Mumia Abu-Jamal
Dated: February 12, 1997
* * * *
Explanatory Note by C. Clark Kissinger:
While Mumia's appeal before the PA SC is "closed" and no more motions are supposed to be filed, there is an exception that allows parties in the case to inform the court of new "authorities" - new decisions by other courts that effect the interpretation of the law.
This motion cites the case of Frey v. Fulcomer decided by the U.S. Court of Appeals for the Third Circuit. In this case a death penalty was overturned because of faulty instructions to the jury by the judge. The death penalty in PA can only be applied if the jury finds that the aggravating circumstances outweigh the mitigating circumstances. Aggravating circumstances require a unanimous vote by the jurors. Mitigating circumstances do not require a unanimous decision. The appeals court found that in the Frey case the presiding judge did not make this distinction clear.
To quote from their decision: "Because we find that the jury could have understood the charge to preclude consideration of mitigating circumstances that were not agreed to by all twelve jurors, and because that creates a risk that the death penalty was imposed in spite of 'factors which may call for a less severe penalty,' we must direct vacatur of Frey's sentence."
The decision is relevant to Mumia's case because a similarly ambiguous instruction was given to his jury, and the verdict form on which the jury recorded their vote was also confusing in terms of the requirement of unanimity.
posted March 12, 1998
Mumia Index | Mumia Events | R&R Main Page
Contact Refuse
& Resist!
305 Madison Ave., Suite 1166, New York, NY 10165
Phone: 212-713-5657
email: info@refuseandresist.org