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Supporters of death-row
inmate and innocent political prisoner Mumia Abu-Jamal will mobilize
outside the courthouse in Philadelphia on Nov. 9 at 12 p.m., as the
U.S. Court of Appeals for the Third Circuit meets, for a second time,
to decide whether Mumia is to be executed post haste or granted a new
trial.
The Third Circuit
announced its decision to hear the case almost immediately following
the circus-like spectacle orchestrated by Philadelphia’s Fraternal
Order of Police, its district attorney and mayor, and a host of other
blood-thirsty would-be Mumia executioners. They and their associates
rallied last month to the premier showing of Tigre Hill’s twisted new
film, “The Barrel of a Gun,” which promised to reveal critical evidence
proving that Mumia was the killer of Police Officer Daniel Faulkner on
Dec. 9, 1981.
While Hill’s film showing
made the front page of the Philadelphia Inquirer, neither that
paper nor any other in the country could bring itself to affirm Hill’s
unsubstantiated conclusions. Indeed, Hill’s thesis that Mumia had
participated in an ambush of Faulkner was never offered by the
prosecution itself during Mumia’s trial.
This did not deter
Philadelphia’s DA, Seth Williams, from declaring to the media that he
would seek the death penalty. Nor was it a coincidence, in this
writer’s view, that the Third Circuit followed Hill’s film premier with
an announcement that it would hear the case on Nov. 9.
The last time that the
Third Circuit heard Mumia’s appeal, in 2008, it affirmed the decision
of Federal District Court Judge William H. Yohn that the instructions
given to the jury by “hanging judge” Albert Sabo in Mumia’s discredited
1982 trial were fundamentally flawed and in violation of the famous
1988 U.S. Supreme Court decision in the case of Mills v. Maryland. The Mills
decision made it more difficult for juries to execute people found
guilty of murder by making it clear that a majority, as opposed to
unanimity, was sufficient to consider the weight of each and every
mitigating circumstance necessary to negate a death sentence. Citing Mills, both District Court Judge
Yohn and the Third Circuit voided Mumia’s death sentence and ordered a
new sentencing trial.
But last year’s decision
of the U.S. Supreme Court vacated the Third Circuit’s Mills ruling and instructed it
to reconsider in light of its January 2010 new interpretation of Mills rendered by the Ohio case
of Smith v. Spisak. Frank Spisak
was a member of a neo-Nazi group who confessed to the killing of three
people. Spisak’s death sentence, like Mumia’s, had been voided due to a
Mills violation.
Pennsylvania officials
filed a friend-of-the-court brief in support of the Ohio prosecutors’
appeal, realizing that a Supreme Court reversal or new interpretation
of Mills could be used to
reinstate Mumia’s death sentence. That is precisely what happened, and
that is what they are now seeking on Nov. 9. Rather than being
compelled to organize a new sentencing trial in which new and old
evidence demonstrating the racist frame-up of Mumia during his 1982
trial could be presented, they would much prefer an immediate order by
the Third Circuit to reverse its previous decision and replace it with
a new sentence of execution. If this turns out to be the case,
Pennsylvania Governor Edward Rendell has pledged to sign yet a third
warrant for Mumia’s execution.
Should the Third Circuit
order a new sentencing trial, however, the jury is not permitted
to find Mumia “not guilty!” While the proceeding itself must include
Mumia’s right to introduce evidence of innocence, the jury will
nevertheless be limited to determining Mumia’s sentence only—that is,
life in prison or execution.
Even if the jury should
believe that Mumia is indeed innocent and that he has proven his
innocence “beyond a reasonable doubt,” the peculiarities of the “law”
in capitalist America preclude a reversal of the guilty verdict of the
previous jury. In this instance as well as others decreed by the
Supreme Court in recent decades, “innocence is no defense.” In its
“wisdom,” and to limit endless appeals by the innocent, the courts
today operate on the thesis that “innocence is trumped by timeliness.”
If an innocent person does not submit evidence of innocence within
whatever statutory guidelines are set by each state, the evidence is
worthless!
Further, the
Anti-terrorism and Effective Death Penalty Act (AEDPA), signed by
President Clinton, also designed to hasten the murder of the innocent,
declares that federal courts today must grant a “presumption of
correctness” to the findings of fact of state courts. Previously, the
criteria employed in federal court appeals, habeas corpus, was based on
the presumption of innocence. That is, defendants had the right to
challenge the “findings of fact” of state courts.
The AEDPA was passed by
Congress and signed by Clinton because a full 40 percent of all state
court convictions in murder cases were reversed on appeal to the
federal judiciary. Why? Authoritative studies demonstrated that the
state court convictions were often based on ineffective assistance of
counsel, police falsification and planting of evidence, intimidation of
witnesses, withholding of evidence of innocence, etc. AEDPA was
designed to affirm racist state court decisions and to make them
“effective,” that is, carried out swiftly without serious recourse to
federal courts. Scapegoated Blacks and Latinos were the major victims.
Mumia’s case was riddled
with all of the above inherent racist and classist practices, yet the
vast majority of the points raised in his federal appeals were
rejected, with Judge Yohn citing the AEDPA. The findings of fact of the
racist Judge Albert Sabo, the same Sabo who stated in his antechambers
before entering the courtroom to judge Mumia’s case, “Yeah, and I’m
going to help ’em fry the nigger,” had to be presumed correct.
To expect that the Third
Circuit will on Nov. 9 uphold its previous ruling that voided Mumia’s
death sentence is to be naïve at best. This is the same Third Circuit
that in 2008 violated its own precedents and the U.S. Supreme Court
decision in the famous case of Batson
v. Kentucky. The Batson
decision voided murder convictions in which Blacks had been excluded
from juries. In Mumia’s case, 11 of 14 Black jurors were excluded by
racist preemptory challenges of the prosecution.
Mumia asked for a
re-hearing on his Batson claim,
this time before the whole panel, or nine judges of the Third Circuit,
as opposed to the original three-judge panel. Maybe, some thought, the
whole court 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. But the Third Circuit, with nine judges
participating, rejected Mumia’s request for a re-hearing, without
comment.
To be fair, one judge,
Donetta Ambrose, did dissent, stating 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.”
With the Supreme Court’s
Nazi Spisak decision in hand
and with the same court’s having vacated the Third Circuit’s ruling
that had previously voided Mumia’s death sentence, it’s not
unreasonable to expect these “prestigious” jurists to bend once again
to carry out the decisions of those in power who seek to justify their
corrupt criminal “justice” system and silence one of its most prominent
critics.
But this may not be the
end of the “legal” struggle. There may be still be some extra innings
left in this 30-year game, innings that allow Mumia’s supporters to
strengthen a movement that is working to make the political price of
the execution and incarceration of the innocent Mumia Abu-Jamal too
high to pay and to win Mumia’s freedom.
A recent CounterPunch
article by David Lindorff, author of the book, “Killing Time: An Investigation into the Death Row Case of Mumia
Abu-Jamal,” points to the fact that when in 2001 Judge Yohn,
citing the AEDPA, ruled against Mumia on most of the 29 points in
Mumia’s federal appeal, he did rule in favor of Mumia on one point,
citing Mills, and voided the
death penalty. In so doing, Yohn declined to rule on four other points
in Mumia’s brief, declaring them essentially moot because they dealt
with the sentencing aspect of Mumia’s trial and he had already voided
Mumia’s death sentence.
Should the Third Circuit
now reverse itself and Yohn, these previously mooted (set aside as no
longer relevant) points could be expected to once again come into play.
Mumia’s attorneys would, of course, appeal any negative Third Circuit
decision back to the Supreme Court for yet another ruling. If Mumia
lost there once again, Yohn’s mooted points might still see the light
of day.
Here’s
a summary of Lindorff’s account of the four points that might allow
further litigation and therefore delay any effort to execute Mumia: “The first unresolved appeal claim goes to the
heart of a defendant’s right to representation and a fair trial.
Abu-Jamal’s attorney, Anthony Jackson, testified under oath at a
Post-Conviction Relief Act hearing in 1995 to the obvious truth that he
did absolutely nothing to prepare for the sentencing portion of the
trial. He called no witnesses to testify to Abu-Jamal’s character, an
astonishing lapse which left the prosecutor free and unchallenged in
portraying Abu-Jamal as a cop-hating terrorist.
“A second line of appeal, also mooted, … was a claim that
Abu-Jamal’s first, fourth, fifth and fourteenth amendment rights were
violated when Prosecutor Joseph McGill improperly used Abu-Jamal’s
membership, as a 15-year-old boy, in the Black Panther organization, in
trying to portray him as a vicious cop-hater.
“Third, McGill told the jury: ‘Ladies and gentlemen, you are not asked to kill
anybody. You are asked to follow the law. The same law that I keep on
throwing at you, saying those words, law and order. I should point out
to you it’s the same law that has for six months provided safeguards
for this defendant. The same law, ladies and gentlemen, the same law
that will provide him appeal after appeal after appeal. ... The same
law, ladies and gentlemen, that has made it so because of the constant
appeals ... nobody at all has died in Pennsylvania since 1962 for an
incident that occurred in 1959.’
“Again, the courts at all levels—in Pennsylvania, in the
Third Circuit, and the U.S. Supreme Court itself—have all overturned
death penalty sentences based upon just such statements having been
made to juries at trials.
“Finally, there is a fourth avenue of appeal … the claim
that the prosecutor knowingly withheld evidence in police files which
showed that Abu-Jamal had no criminal record and no propensity for violence.”
The “appearance” of
justice is important in “democratic” America but the state power is
finding it increasingly difficult to maintain this illusion or
appearance, hence the passage in 1996 of the AEDPA, the Patriot Act of
2001, the frame-up, absurd and abhorrent 10-year re-sentencing of Lynne
Stewart, the massive persecution of Arabs and people of Islamic faith,
the recent FBI raids and Grand Jury subpoenas and the associated and
daily infringements of civil and democratic rights that are justified
in the name of pursuing the government’s “war on terrorism.”
Mumia’s ongoing
persecution represents 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, and a myriad of
constitutional violations including rejection of the right to act as
one’s own counsel, Mumia’s physical exclusion from a majority of the
trial proceedings against him, the racist exclusion of Black jurors, a
racist judge who ruled against more than 100 motions presented by
Mumia’s defense team, and more.
Mumia’s freedom would
represent a victory for all people struggling for freedom and equality. All out
to Philadelphia, Nov. 9! Stop the execution! Free
Mumia now!
For further information contact:
International Concerned Family and Friends of Mumia Abu-Jamal, (215)
476-8812 or The Mobilization to Free Mumia Abu-Jamal, (510) 268-9429, freemumia.org
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