Indybay.org
by Jeff Mackler
Thursday Nov 5th, 2009 12:03 PM
Pennsylvania prosecutors, twice rejected in their efforts to impose
the death penalty on Mumia (in 2001 and 2008), may have found new
support in the U.S. Supreme Court.
SF EVENT FOR MUMIA, KEVIN COOPER, AND TROY DAVIS -- Sunday, NOVEMBER
8TH AT 2PM: Centro Del Pueblo, 474 Valencia Street (between 15th and
16th Streets) San Francisco (read more at bottom of article)
After almost 28 years on Pennsylvania's death row and innumerable
battles in the U.S. criminal injustice system, innocent political
prisoner, journalist and world renowned "Voice of the Voiceless"
Mumia Abu-Jamal lost his final appeal on April 6, 2009. Ignoring it's
own precedents and those of the Third Circuit U.S. Court of Appeals
below it, the U.S. Supreme Court declined to affirm what had been the
"law of the land" for decades, 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 notorious "hanging judge"
Albert Sabo, the prosecutor Joseph McGill used 10 or perhaps 11 of
his 15 peremptory strikes against Black jurors. But as with virtually
all court decisions over the past decades in Mumia's case, the "Mumia
Exception," the contorted interpretation of the "law" to reach a
predetermined result, was once again applied, with the high court
refusing to review the twisted logic of its subordinate bodies
thereby allowing Mumia's frame-up murder conviction to stand.
But what has caught the attention of both legal observers and human
rights activists even more is the fact that the same court, while
refusing to hear Mumia's appeal, chose to delay a ruling on a cross
appeal filed by the State of Pennsylvania that seeks Mumia's
execution. Pennsylvania prosecutors, twice rejected in their efforts
to impose the death penalty on Mumia (in 2001 and 2008), may have
found new support in the U.S. Supreme Court.
It appears that the court's delay in ruling on the validity of
Mumia's original execution sentence was due to its decision to grant
oral arguments in the Ohio case of Smith v. Spisak, a case that might
re-write or reinterpret the nation's laws to make it easier to obtain
jury verdicts calling for execution. The Court heard Ohio
prosecutor's arguments for Spisak's execution on October 13, 2009. A
ruling is expected in the year ahead.
Frank Spisak, a neo-Nazis who wore a Hitler mustache to his trial,
denounced Jews, and Blacks and confessed in court to three hate crime
murders in Ohio, saw his jury-imposed death sentence reversed in the
federal courts when his attorney's successfully invoked a 1988
Supreme Court decision in the famous Mills v. Maryland case. Mills
requires that in order to find mitigating circumstances sufficient to
impose a sentence of life imprisonment without parole, as opposed to
the death penalty, the jury's majority decision (as opposed to
unanimous decision) on each mitigating circumstance is sufficient. In
both Spisak and Mumia's case the presiding trial court judge violated
Mills and in essence instructed the juries that unanimity, not a
majority vote on each mitigating circumstance was required. In both
cases the prosecution's appeal was rejected and Mills was upheld,
thus staying the imposed death sentences and ordering a new trial or
sentencing hearing with the proper jury instructions. In both cases
the prosecution, seeking to avoid a new trial in any form, appealed
to the U.S. Supreme Court demanding execution.
An April 7, 2009 article in the Legal Intelligencer, the oldest law
journal in the country, had this to say about the Supreme Court's
decision to delay a ruling on Pennsylvania's request to re-impose the
death penalty on Mumia.
"In both cases, [Spisak and Abu-Jamal] 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. [Emphasis added].
"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."
The effect of Mills was to make it harder for prosecutors to obtain
death sentences in capital cases. The Intelligencer concludes, "The
question now before the courts is whether Mills requires that death
sentences in other states be overturned if the juries in those states
are misled by faulty instructions or sufficiently vague verdict forms
to believe that mitigating factors require unanimity." [Emphasis added].
I emphasize the words "other states" because prior to this unexpected
turn of events the legal community appeared to agree that Mills
applied to all states. That is, if a jury was orally mis-instructed
and/or received faulty or unclear verdict forms that implied it
needed to be unanimous with regard to mitigating circumstances
sufficient to not impose the death penalty, the death penalty was set
aside and a new sentencing hearing was ordered.
This 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 at a new sentencing hearing
where new evidence of innocence can be presented by Mumia, but where
the jury can only decide between execution and life in prison without
parole. At this hearing, the jury cannot make a decision regarding
guilt. Since then, Pennsylvania officials have effectively stayed
Yohn's order by appealing to the higher federal courts.
In deciding to hear Ohio prosecutors' arguments in the Spisak case
with regard to Mills the Supreme Court has implied that one of the
key issues they will consider centers on the interpretation of the
concept of federalism, that is, that the exercise of power in the
U.S. is shared in some measure between the federal government and the
states. The political pendulum has swung back and forth on this
issue. In past decades, the "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 has been far from blind in racist 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 in the State of Maryland, the would-be Ohio
and Pennsylvania executioners argue that based on the laws of their
states, Mills cannot be automatically applied to the situation in
Ohio where a different set of jury instructions and therefore jury
deliberations were involved. Indeed, Ohio prosecutors argued before
the Supreme Court on October 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.
Should this "states' rights" argument be accepted and Mills be
effectively constricted, the Supreme Court could then uphold Spisak's
death sentence and, with a mere citation to Spisak and the new
interpretation of Mills, uphold the Pennsylvania's appeal seeking
Mumia's execution.
While most legal observers previously considered a Supreme Court
Mills re-interpretation a virtual impossibility, the stage has now
been set for such an outcome. The state's longstanding effort o
execute Mumia has been given new legal avenues for success with the
top court's decision to re-consider the Spisak case.
What the Supreme Court will do, however, is far from clear. It will
also consider Spisak's new attorney's argument that his jury trial
lawyers were incompetent in essentially arguing during their trial
summation that Spisak was essentially an extreme and horrific nut
case who barely understood what he was doing. Should the Supreme
Court chose to ignore or side-step Pennsylvania's Mills arguments and
rule only on the issue of ineffective assistance of counsel, the
chances of Mumia's execution recede considerably. The court could
also chose to remand the case back to the lower courts to reconsider
their previous Mills interpretation in light of the Supreme Court's
possible new instructions on this issue. Second guessing the courts
in Mumia's 28-year legal sojourn has stumped virtually the entire
legal community, or at least those who believe that the laws of the
land should be implemented without prejudice to the individual
concerned. In virtually every instance, however, this has not been
the case; an unending series of legal atrocities have been
perpetrated against Mumia that expose the criminal "justice" system
for the fraud it is in racist and classist America.
Mumia is far from out of danger, especially when his very life, in
legal terms, presently hinges on the whims of the Supreme Court, the
institution that has already denied his request for a hearing before
them on another issue, the systematic and racist exclusion of Black
jurors. Such exclusion is explicitly prohibited in the historic 1986
Supreme Court ruling in the case of Batson v. Kentucky. But the court
once again ignored its own rulings and even decisions that
strengthened Batson claims to hasten Mumia's demise. In every sense
Mumia's life is on the line as never before. Pennsylvania's Governor
Ed Rendell is pledged to sign what could be the third and final
warrant for Mumia's execution, a warrant that would likely order that
his life be taken by lethal injection.
Mumia's supporters around the world and Mumia himself have long known
that the battle for his life and freedom would be qualitatively more
advanced by the construction of a powerful mass movement in the
streets that won the hearts and minds of millions and more than
reliance on a court system permeated by its very nature with class
and race bias.
The state power's march for Mumia's execution has not been limited to
the courts. The 2007 "Murdered by Mumia" book co-authored by Maureen
Faulkner, the wife of police officer Daniel Faulkner, who Mumia was
falsely convicted of murdering, and rightwing talk radio host,
Michael Smerconish, presents an outrageous account of Faulkner's
murder. While having little or no basis in the facts of the case the
book has nevertheless been used to advance the Fraternal Order of
Police's longstanding campaign to execute the "cop killer."
More recently, filmmaker Tigre Hill has produced a work scheduled for
a debut in Philadelphia in December and later international
distribution entitled, "The Barrel of a Gun," wherein ex-Black
Panther leader Bobby Seal's rhetoric about "offing the pig," is
coupled with rightwinger David Horowitz's assertions that Mumia was
merely carrying out Panther policy. The three-minute preview or
trailer to "The Barrel of a Gun" theorizes, without a shred of
evidence, that Mumia and his brother Billy Cook, literally planned
the Faulkner murder, ambush style.
Those unfamiliar with Mumia's background and the facts of the case
could only conclude that Mumia was guilty without question. That
Mumia had left the disintegrating Panthers more than a decade before
his frame-up trial, that he was an award-winning journalist and
president of the Association of Black Journalists, a leading
reporter/critic of the Philadelphia Police Department, dozens of
whose officers were indicted and convicted on Justice Department
charges of involvement in drug-running, prostitution, planting and
falsification evidence and intimidation of witnesses, was not mentioned.
Today, having exhausted most all legal remedies, Mumia's supporters
are engaged in an important campaign to demand a Justice Department
civil rights investigation into charges presented by his supporters
that demonstrate illegal collusion between Pennsylvania prosecutors
and the judiciary. A delegation of Mumia's defenders across the
country has planned a November 12 visit to Washington, D.C. where a
meeting with Attorney General Eric Holder will be sought for this
purpose. Thousands of petitions demanding Mumia's freedom obtained
across the world will also be presented Holder and to officials of
the U.S. Supreme Court.
Similarly, a mass antiwar protest in Washington, D.C.'s Malcolm X
Park is set for Saturday, November 7. In addition to the immediate
withdrawal of all U.S. troops from the Middle East the sponsoring
Black is Back Coalition is demanding Mumia's freedom.
In the San Francisco Bay Area the Mobilization to Free Mumia
Abu-Jamal is sponsoring a tour with Amnesty International's Death
Penalty Abolition Campaign leader Laura Moye. Entitled "Innocent but
Facing Execution," the tour will focus on the cases of Mumia, Troy
Davis and Kevin Cooper, three innocent frame-up victims of America's
racist criminal "justice" system.
For information in Philadelphia call: 215-476-8812. In San Francisco:
510-268-9429.
BAY AREA EVENTS FOR MUMIA:
Sunday, NOVEMBER 8TH AT 2PM: Centro Del Pueblo, 474 Valencia Street
(between 15th and 16th Streets) San Francisco
Admission: $5.00 - $20 sliding scale. No one turned away for lack of funds.
Hear:
Laura Moye, Director, Amnesty International's Death Penalty Abolition
Campaign; actively
working for several years with Troy Davis and his family in Georgia
Hans Bennett, Founder, Journalists for Mumia Abu-Jamal; Editor, Free
Mumia News; Author,
The Case of Mumia Abu-Jamal: Innocent Man on Death Row
Rebecca Doran, leading activist in Kevin Cooper's defense
Sunday, November 8, 2009 2:00 pm
Sponsor: Mobilization to Free Mumia Abu-Jamal, 510-268-9429
freemumia.org [Note: If you can't attend send your check payable to:
"Mobilization to Free Mumia Abu-Jamal," P.O. Box 10328, Oakland, CA 94610.]
[Also in Palo Alto, Fri., Nov. 6, 7:30 pm, Fellowship Hall, First
Baptist Church, 305 N. California
Ave, 650-326-8837, peaceandjustice.org] labor donated
<http://freemumia.com>http://freemumia.com
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