Lawyers for convicted cop-killer Mumia Abu-Jamal will be watching closely on Tuesday when the U.S. Supreme Court takes up an Ohio death penalty case because its outcome may very well decide whether Abu-Jamal's death sentence will be reinstated.
In April, Abu-Jamal lost his final appeal seeking a new trial for the December 1981 murder of Philadelphia Police Officer Daniel Faulkner when the justices refused to take up the issue of whether blacks were unfairly excluded from the jury.
But, at the time, the justices took no action on a companion petition filed by the Philadelphia district attorney's office demanding reinstatement of Abu-Jamal's death sentence despite having discussed it weeks before.
Now it appears certain that the high court has decided to hold the Philadelphia prosecutors' petition in abeyance pending the outcome of Smith v. Spisak -- an Ohio case that raises strikingly similar issues to those in Abu-Jamal's case.
If the prosecutors in that case are successful and win reinstatement of the death sentence imposed on Frank G. Spisak, the justices may then see no need to take up Abu-Jamal's case.
Instead, at that point, it's likely that the justices would simply issue a one-page order in Abu-Jamal's case that would summarily reverse the decision by the 3rd U.S. Circuit Court of Appeals and order the appellate court to reconsider whether Abu-Jamal's death sentence should be reinstated.
Why is Abu-Jamal's case so similar to Spisak's? Both were on death row for notorious murders, but both won rulings in federal court that granted them partial new trials limited to the penalty phase.
In both cases, the federal courts' decisions to overturn the death sentences hinged on Mills v. Maryland -- a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.
The Mills ruling struck down a Maryland statute that said juries in capital cases must be unanimous on any aggravating or mitigating factor. Voting 5-4, the justices declared that unanimity was properly required for any aggravating factor, but that mitigating factors -- those that weigh against imposing a death sentence -- must be handled more liberally, with each juror free to find on his or her own.
Since then, Mills has proven to be a powerful tool for defense lawyers aiming to overturn death sentences in numerous other states.
The question now before the courts is whether Mills truly requires that death sentences in other states be overturned if the juries in those states might have been confused by faulty instructions or verdict forms and led to believe that mitigating factors require unanimity.
Perhaps even more important to the justices is a corollary question of federalism: Is it fair for the federal courts to overturn a state court's decision on how to interpret Mills by imposing its own interpretation that extends Mills beyond its original scope?
It's possible that the justices will provide the answers to those questions in Spisak's case that will be immediately applied to Abu-Jamal's case -- with Abu-Jamal and his lawyers forced to simply watch and wait until that happens.
Spisak, 57, was sentenced to death in 1983 for a killing spree at Cleveland State University after a monthlong trial that reportedly included testimony that he was a neo-Nazi and cross-dresser.
According to briefs in the case, Spisak killed Horace T. Rickerson, Timothy Sheehan and Brian Warford and also shot at John Hardaway and Coletta Dartt. Hardaway was shot seven times but survived and identified Spisak as the shooter.
After his arrest, Spisak confessed to all five shootings and declared that his actions were motivated by his hatred of gay people, blacks and Jews.
As Ohio prosecutors argued in their Supreme Court brief, Spisak "proudly testified at length as to his neo-Nazi beliefs and told the jury that those beliefs had motivated the murders."
In 2006, the 6th Circuit overturned Spisak's death sentence based on a Mills violation as well as findings that his lawyers were ineffective and had "demonized" Spisak during the trial.
The Supreme Court overturned the ruling and ordered the 6th Circuit to study the case again in light of two other decisions by the high court.
But the 6th Circuit in 2008 reinstated its prior decisions, finding they were correct.
Now the Supreme Court has taken the Spisak case up a second time to tackle the question of whether the 6th Circuit failed to give proper deference to the Ohio state courts "when it applied Mills v. Maryland to resolve ... questions that were not decided or addressed in Mills."
Abu-Jamal's lead lawyer, Robert R. Bryan of San Francisco, said in April that the issue in Spisak is "very similar" to the issue raised in the prosecutors' petition in Abu-Jamal's case.
"The question we've got," Bryan said at the time, "is whether we'll be left dangling in the wind until Spisak is decided."
In the prosecutor's petition in Abu-Jamal's case, Deputy District Attorney Ronald Eisenberg argued that the 3rd Circuit failed to give the proper deference to the rulings of the Pennsylvania Supreme Court which had addressed the Mills issue in 1995 and -- relying on a 3rd Circuit decision -- concluded that the Pennsylvania jury instructions did not run afoul of Mills.
But by the time Abu-Jamal's case made its way into the federal courts, the 3rd Circuit "had changed its mind," Eisenberg argued, with a series of decisions that said the Pennsylvania courts' analysis of Mills was not only wrong but unreasonable.
Eisenberg urged the justices to see a difference between Mills -- where the Maryland jury was specifically instructed that it had to be unanimous on mitigating factors -- and the situation in states like Pennsylvania, where the issue is much subtler and hinges on speculation by the federal courts that the jury might have been confused.
"The difficulty with the 3rd Circuit's 'risk of confusion' view is that Mills, quite simply, stated no such rule," Eisenberg argues.