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In a dangerous decision and a break
with its own precedent, the U.S. Supreme Court, on Jan. 15, opened the
door wide to Pennsylvania prosecutors’ efforts to execute the innocent
political prisoner, murder frame-up victim, award-winning journalist,
and world-renowned “Voice of the Voiceless,” Mumia
Abu-Jamal.
Six months
earlier, on April 6, the Supreme Court all but shut the door on Mumia’s
28-year fight for justice and freedom when it refused to grant a
hearing (writ of certiorari) despite its own decision in the 1986 case
of Batson v. Kentucky that the systematic and racist exclusion of Blacks from
juries voids all guilty verdicts and mandates a new trial.
In Mumia’s 1982
trial, presided over by the infamous “hanging judge,” Albert Sabo,
Philadelphia prosecutor Joseph McGill, in explicit violation of Batson, used 10 of his 15 peremptory challenges to exclude
Blacks from the jury panel. But as with virtually all Mumia court
decisions over the past decades, the “Mumia Exception,” a consistent
and contorted interpretation of the “law,” or abject blindness to it,
has been employed to reach a predetermined result. Mumia’s frame-up
murder conviction was allowed to stand.
In contrast, on
Jan. 15, 2010, Pennsylvania prosecutors, twice rejected in their
efforts to impose the death penalty on Mumia (in 2001 and 2008), were
given yet another opportunity to do so when the Supreme Court remanded
the sentencing issue of life imprisonment versus execution to the U.S.
Court of Appeals for the Third Circuit. The latter was instructed to
take into consideration the High Court’s new ruling in the Ohio case of Smith v. Spisak.
Frank Spisak was
a neo-Nazi who wore a Hitler mustache to his trial, denounced Jews and
Blacks, and confessed in court to three hate-crime murders in Ohio.
Spisak saw his jury-imposed death sentence reversed in the federal
courts when his attorneys, like Mumia’s, successfully invoked a critical
1988 Supreme Court decision in the famous Mills v. Maryland case.
The Mills decision required, with regard to sentencing procedures,
that both the judge’s instructions and the jury forms make clear that any juror who believes that one or more mitigating
circumstances exist (sufficient to impose a sentence of life
imprisonment as opposed to the death penalty) should have the right to
have the issues considered by the jury as a whole. Prior to Mills, Maryland jurors were effectively led to believe
that they had to be unanimous on any possible mitigating circumstances
them to be considered in the deliberation process.
Mills explicitly
rejected the idea of unanimity; it rejected the notion that a single
juror could block from consideration the mitigating circumstances
hypothetically found by another juror or even by 11 of the 12 jurors.
Before Mills, the “unanimity” requirement in the way it was
presented to juries essentially eliminated the vast majority of
mitigating circumstances, and therefore juries had little or no
alternative but to impose the death penalty. Under Mills, once all mitigating circumstances were set before
the jury, it was then their responsibility to determine whether they
were sufficient to impose a sentence of life as opposed to death.
In both Spisak’s
and Mumia’s cases the trial court judge violated the Mills principle and in essence instructed the juries that
unanimity on each mitigating circumstance was required for consideration
of the jury as a whole. As a consequence, Federal District Courts in
both Ohio and in Pennsylvania (in the case of Mumia), later backed by
decisions of the U.S. Courts of Appeals, invokedMills to overrule the jury-imposed death-sentence verdicts. They
ordered a new sentencing hearing and trial with the proper instructions
to the jury and where new evidence of innocence could be presented. The
jury remained bound, however, by the previous jury’s guilty finding.
Even so, the
long-suppressed mountain of evidence proving Mumia’s innocence drives
Mumia’s prosecutors to avoid a new trial at all costs. A new trial of
any sort could only expose, with unpredictable consequences, the base
corruption of a criminal “justice” system permeated by race and class bias.
Executing innocent people does not sit well with the American people.
In the courts of the elite, as in life itself, nothing is written in
stone. The “law” more than once has been “adjusted” in the interests of
the poor and oppressed when the price to pay by insisting on its
immutability is too costly in terms of doing greater damage to the
system as a whole.
The effect of
the 1988 Mills decision was to make it harder for prosecutors to obtain
death sentences in capital cases; the effect of Spisak is to make it easier. Armed with this new Supreme Court
weapon and order to reconsider the application of Mills, Pennsylvania prosecutors will once again seek
Mumia’s execution before the Third Circuit.
“States’ rights”
logic of Spisak decision
Prior to this
unexpected turn of events and for the past 22 years, the broad U.S.
legal community appeared to agree that Mills applied to all states. That is, if a jury were orally mis-instructed and/or
received faulty or unclear verdict forms that implied it needed to be
unanimous with regard to mitigating circumstances that would be
considered to weigh in against the death penalty, the death penalty
would be set aside and a new sentencing hearing ordered.
That is what
happened in Mumia’s case when Federal District Court Judge William H.
Yohn in 2001 employed Mills to set aside the jury’s death-penalty decision. Yohn gave
the state of Pennsylvania 180 days to decide whether or not to retry
Mumia or to accept a sentence of life imprisonment.
Since then,
Pennsylvania officials have effectively stayed Yohn’s order by
appealing to the higher federal courts. The Supreme Court gave them the
victory they sought.
In deciding to
hear Ohio prosecutors’ arguments in the Spisak case with regard to Mills, the Supreme Court implied that
a new interpretation of the concept of federalism was in the making.
The political pendulum has swung back and forth on this issue. In past
decades, a “states’ rights” interpretation was employed to justify
racist state laws that denied Blacks access to public institutions and
facilities. With the rise of the civil rights movement, federal power
was used to compel the elimination of the same racist laws.
Justice is far
from blind in America. It is applied to the advantage of the working
class and the oppressed only to the extent that the relationship of
forces—that is, the struggles of the masses—demand it.
Since Mills was decided based on the facts in the state of Maryland
only, Ohio and Pennsylvania prosecutors argued, Millscannot be automatically applied to other states
where a different set of jury instructions and jury forms were
involved. Indeed, Ohio prosecutors argued before the Supreme Court on
Oct. 13 that Ohio and Pennsylvania were the exception and not the rule
and that the norm in other states was to essentially reject a strict
interpretation of Mills in favor of various state guidelines regarding
jury instructions. It was not by accident that Mumia’s Pennsylvania
prosecutors filed a friend of the court brief (amicus curiae) in
support of the Ohio Spisak appeal.
Undoubtedly, the
U.S. Supreme Court found some delight in rendering their Spisak decision. They changed the law in order to allow
Ohio to execute a likely deranged Nazi and instructed Pennsylvania
prosecutors to use this law to try to execute a revolutionary—that is,
Mumia Abu-Jamal.
In every sense
Mumia’s life is on the line as never before. Pennsylvania Governor Ed
Rendell is pledged to sign what could be the third and final warrant
for Mumia’s execution. Opinions vary as to the timeline for a final
decision of the Third Circuit. Indeed, the Third Circuit could in turn
remand the Mills issue back to Judge Yohn’s Federal District Court,
and any decision made therein might well be appealed by either side
back to the Court of Appeals and then to the U.S. Supreme Court. The
process could take months or years, but the deliberations will be based
on new turf that leads closer to the death penalty for Mumia than ever
before.
Mumia's supporters
around the world and Mumia himself have long noted that the battle for
his life and freedom largely resides in our collective capacity to
build a massive movement capable of making the political price of
Mumia’s incarceration and execution too high to pay. Mumia is alive and
fighting today because of that movement. Those dedicated to his freedom
and who stand opposed to the death penalty more generally are urged get
involved. Free Mumia!
Contact the
Mobilization to Free Mumia Abu-Jamal in California, (510) 268-9429, or
the International Concerned Family and Friends of Mumia Abu-Jamal in
Pennsylvania, (215) 476-8812.
-Jeff Mackler is
the director of the Northern California-based Mobilization to Free
Mumia Abu-Jamal.
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