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When I learned that the U.S. Court of Appeals for the Third Circuit had
on July 22, 2008, denied Mumia Abu-Jamal a re-hearing—thus leaving
Mumia’s fight for justice and freedom in the hands of the court of last
resort, the U.S. Supreme Court—my immediate thought
was that we were once again witnessing the operation of the racist
"Mumia Exception."
This is the notion that regardless of previous decisions and precedents
of the U.S. judicial system—from the Third Circuit to the U.S. Supreme
Court—when it comes to their application to Mumia’s case, the
"law" means nothing.
A close look at Mumia’s case lends some credence to the "Mumia
Exception," or "Mumia Law" concept, as it is sometimes
called. In virtually the exact same circumstances, bound by the
important U.S.
Supreme Court decision in the case of Batson
v. Kentucky, the Third Circuit had previously thrown out
convictions in capital cases when Blacks were excluded from juries.
In Mumia’s case, 11 of 14 Black jurors were excluded by preemptory
challenges of the prosecution. One might have concluded that the
three-judge panel of the Third Circuit that decided this issue four
months ago in March 2008, might apply the same precedent and grant a
new trial. They didn’t.
That’s why Mumia asked for a re-hearing before the whole panel, or nine
judges of the Third Circuit. Maybe the entire court would remember that
they themselves had previously decided this issue in several cases
before them. Maybe they would remember that one of their own, Justice
Alito, now sitting on the U.S. Supreme Court, had written the decision
and had sharply noted that the exclusion of even one juror on account
of race, voided the trial result. And maybe the Third Circuit
would take into account that the U.S. Supreme Court, in a powerful
decision in the Snyder case, only months before, had affirmed, if not
strengthened its Batson ruling.
But this did not to come to pass. The Third Circuit, with nine judges
participating, without comment, rejected the en banc (entire court)
re-hearing that Mumia had requested.
Mumia’s attorney, Robert R. Bryan, commented: "Simply put, we did
not receive the needed majority vote from the nine sitting judges; at
least five votes for a rehearing were necessary. However, Justice
Thomas L. Ambro continues to urge the granting of relief on the issue
of racism in jury selection. That position, as detailed in his
brilliant dissenting opinion of March 27, 2008,
will continue to serve as a beacon of hope as we press on for a new
trial and Mumia’s freedom.
"Judge Ambro said that the ‘core guarantee of equal protection,
ensuring citizens that their State will not discriminate on account of
race, would be meaningless were we to approve the exclusion of jurors
on the basis of … race…. I respectfully dissent…’
Bryan’s report continued: "Mumia and I had a legal conference this
afternoon [July 22]. He, as I, was stunned by the federal court’s
refusal to grant relief since it flies in the face of established legal
precedent in both the U.S. Court of Appeals and the U.S. Supreme Court.
I am furious because racism continues to raise its ugly head in this
country, and should have no place in our legal system.
"The indisputable facts are that the prosecutor engaged in racism
in selecting the jury in this case, and that bigotry lingers today in
Philadelphia. It would be naive not to realize that this case continues
to reek of politics and injustice."
Bryan told Socialist Action that he would file a petition for a writ
of certiorari with the U.S. Supreme Court within 90 days
or by Oct. 20, 2008. This is a request that the U.S. Supreme Court
certify that they will hear the case. The court has no legal obligation
to do so. Indeed it routinely rejects 90 percent of such petitions in death penalty cases.
If the Court denies the petition, Mumia’s legal options are finished.
He will either remain in prison for the rest of his life with no
possibility of parole, or will have to defend against renewed efforts
by the state to seek his execution.
Bryan will also appeal the Third Circuit’s rejection of another
critical issue raised in his defense. This is the fact that
Pennsylvania prosecutor Joseph McGill told the jury in his summary
remarks at Mumia’s 1982 trial that they need not concern themselves if
they were not certain about Mumia’s guilt or innocence. McGill
explained that this was because Mumia would have "appeal after
appeal," and therefore any errors that might have occurred could
be corrected.
McGill’s "appeal after appeal" formulation had been the
subject of appeals in several cases prior to Mumia’s, with the result
that the convictions obtained was struck down and new trials ordered.
In Mumia’s case the Third Circuit, apparently "forgot" its
own precedent—that is, a reassertion of the fundamental principles that
juries must find guilt "beyond a reasonable doubt,"
that juries must begin with the presumption of innocence,"
and that juries and only juries have the responsibility of determining
guilt or innocence.
McGill’s assertion to the jury that they
could effectively suspend any reasonable doubt they might have—and by
implication, leave it to higher courts to determine guilt or
innocence—was not challenged at trial by the presiding "Hanging
Judge" Albert Sabo or by the Third Circuit.
"The Mumia
Exception:" another look
A closer examination reveals that the "Mumia Exception"
really doesn’t exist. The vast majority of capital cases, if not all
cases, that come before the courts in capitalist America are riddled
with race and class bias.
The ruling class itself is well aware of this fact, as is any student
who embarks on the study of law in the U.S., not to mention the
millions who are victims of this supposed system of "blind
justice." Capitalist law is the product of capitalist power—that
is, it reflects the needs and interests of the corporate elite who rule
America today. The U.S. has the highest incarceration rate in the world and the
largest percentage of its population on death row.
This is not a statistical aberration. The United Nations recently
issued a report condemning the U.S. for its race bias in what passes
for its criminal "justice" system.
Today’s "prison industrial complex"
serves multiple purposes. It provides a cheap source of labor, a few
cents an hour, for hundreds of major capitalist industries and the
increasingly privatized prison "industry" provides a ready
source of capital paid to corporate outfits who profit handsomely from
prison construction and administration.
Prior to 1996, when the U.S. Congress passed the infamous
Anti-terrorism and Effective Death Penalty Act (AEDPA), signed by
then President Bill Clinton, a full 40 percent of all state court convictions
in capital cases were reversed on appeal to the federal courts. The
reason? An important study found that police intimidation of witnesses,
planting and falsification of evidence and incompetent counsel were
rampant in the system.
But rather than correct the racist and classist "system," an
impossible task in the framework of capitalism, the government sought
to intensify it by "effectively" eliminating appeals to the
federal courts.
The AEDPA was in fact designed to abolish habeas corpus,
the right to appeal to the federal courts. It accomplished this by
replacing the historic "presumption of innocence" with a new
requirement that federal courts were required to grant a
"presumption of correctness" to the findings of what are
essentially racist and classist state courts.
The implementation of this new criteria,
essentially the barbaric imposition of a presumption of guilt, has
produced an explosion of death-row inmates, a killing field of the
oppressed who are awaiting execution, a phenomenon condemned throughout
the world as the U.S. remains among the two or three nations to retain
the death penalty.
It is therefore fair to say that the bias in Mumia Abu-Jamal’s
case is symptomatic of the racism that permeates the criminal justice
system in the U.S. rather than an exception to it. At the
same time, it is also accurate to conclude that the entire court
system—in the face of the power of the international movement that for
26 years has worked to challenge Mumia’s frame-up and prevent his
execution—has geared up to justify its existence in the eyes of
millions who still have illusions that they live in a democratic
society.
The "appearance" of justice is important to the ruling rich,
as they find it increasingly difficult to maintain this illusion. Hence
the passage of the AEDPA, the Patriot Act, and the associated and
massive infringements of civil and democratic rights that are justified
in the name of pursuing the government’s "war on terrorism."
The July 22 decision to reject Mumia’s appeal is but the tip of the
iceberg in regard to the legal atrocities that have been committed to
keep this innocent man on death row. His is a case study in the use of
lying witnesses, falsification of evidence, manipulation of the crime scene,
witness intimidation,
police lying, exclusion of evidence proving innocence. His case also
contains a myriad of constitutional violations, including rejection of
Mumia’s right to act as his own counsel, his physical exclusion from a
majority of trial proceedings against him, the racist exclusion of
Black jurors, and a racist judge who ruled against more than 100
motions presented by Mumia’s defense team.
Indeed, Mumia’s original federal appeal included 29 instances of
constitutional violations based on the facts of the case, 28 of which
were rejected on the grounds that the AEDPA today requires federal
courts to presume that the "facts" found by the racist court
of Judge Sabo must be presumed to be correct. After 26 years, they have
all been proven to be fabrications, a fact that has zero weight in
today’s criminal justice system.
This is no exaggeration. A low point in Mumia’s legal battle came in
the statement of Federal
District Court Judge William H. Yohn Jr., who cited a Supreme
Court ruling that "innocence is no defense."
Yohn’s citation was in response to clear evidence produced by Mumia
that he had not been and could not have been the person who murdered
Police Officer Daniel Faulkner on Dec. 9, 1981. Yohn's logic held that
innocence is trumped by timeliness—that is, if the evidence is
submitted beyond a statutory deadline, even if conclusive, it is
irrelevant. The legal process must embody "finality," says
the "law of the
land" today, even if the final result is the
execution of an innocent man.
Mumia’s legal appeal must be accompanied by a reinvigorated and massive
expansion of the movement that has fought so hard and long for his
freedom. As we go to press, the International Concerned Family and
Friends of Mumia Abu-Jamal, the Mobilization to Free Mumia Abu-Jamal,
and several other defense groups across the country are preparing
coordinated plans to challenge the latest court decision and to make
the political price of Mumia’s continued incarceration too high to pay.
They seek a new trial and Mumia’s freedom.
At the same time, the state of Pennsylvania is evaluating whether it
will proceed with their efforts to reverse a previous federal district
court decision that ruled that the death penalty had been
improperly imposed. Pending the outcome of the state’s decision, Mumia
remains on death row. The threat of execution by lethal injection
remains on the table.
For further information contact ICFFMAJ, (215) 476-8812
or the Mobilization to Free Mumia Abu-Jamal, (510) 268-9429,
freemumia.org.
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