Supreme Court Ruling Benefits Abu-Jamal Case

January 27, 2010 By Linn Washington ZMag

In a perverse way, the recent U.S. Supreme Court ruling reinstating
the death sentence of Mumia Abu-Jamal could ultimately benefit the
world's most recognized death row inmate.

This ruling orders the federal 3rd Circuit Court of Appeals to
reexamine the issue of whether the judge at Abu-Jamal's 1982 trial
provided faulty jury instructions regarding death penalty
deliberation procedures.

The 3rd Circuit had found those judicial instructions flawed and
voided Abu-Jamal's death sentence, prompting an appeal from
Philadelphia prosecutors that the Supreme Court granted.

Returning this controversial case back to the 3rd Circuit enables new
legal maneuvering which Philadelphia prosecutors concede could
include examination of issues federal courts have not considered in
this matter that draws attention internationally arising from the
explosive intersection of racism and politics.

Although the case against former Black Panther Abu-Jamal arguably
contains compelling elements, this case is circumstantial, centered
on testimony from criminally flawed eyewitnesses and lacking
conclusive forensic evidence.

Those demanding a new trial for self-proclaimed revolutionary
journalist Abu-Jamal consistently cite credible evidence of egregious
improprieties by police, prosecutors and jurists as corrupting the
quest for justice of this once award-winning radio reporter who's
authored six books while on death row for over 25-years.

Amnesty International, in its seminal 2000 report on the Abu-Jamal
case, detailed "a pattern of events" comprising Abu-Jamal's fair
trial rights including irregularities by police and prosecutors plus
"hostility by the trial judge and the appearance of judicial bias
during appellate review."

The least scrutinized aspect of Abu-Jamal's case is unusual rulings
issued by appellate courts - federal and state - often creating new
standards seemingly crafted to deny this convicted cop killer the
legal relief granted to others including a few convicted of murdering police.

When the Pennsylvania Supreme Court first upheld Abu-Jamal's
conviction in March 1989 it eliminated an ancient legal standard
permitting defendants' to make statements before sentencing that it
had reinforced in a ruling issued just one month earlier.

Curiously, the same Philadelphia and Pennsylvania courts that found
major flaws in 86 Philadelphia death penalty convictions between
Abu-Jamal's December 1981 arrest and October 2009 declare that not a
single error - evidentiary or procedural - exists anywhere in the
Abu-Jamal case.

Despite Pennsylvania state and federal courts voiding 22 death
penalties because of defense lawyer failures to present any
mitigating evidence for their clients during death penalty hearings,
courts found no fault in Abu-Jamal's trial lawyer failing to present
any mitigating evidence during the penalty hearing.

When the 3rd Circuit Court upheld Abu-Jamal's conviction in 2008, it
created a new standard for defendants challenging racist jury
selection practices by prosecutors - a standard more stringent than
the standard used by that Circuit and the U.S. Supreme Court.

Abu-Jamal's appeal of that 3rd Circuit ruling highlighted 11 separate
rulings where federal and Pa state courts specifically faulted
Philadelphia prosecutors for engaging in intentional discrimination
during jury selection.

Six of those 11 rulings cited in that appeal came from the 3rd
Circuit yet the U.S. Supreme Court rejected Abu-Jamal's appeal in
April 2009 without comment.

The U.S. Supreme Court engaged in contradictory rulings related to
Abu-Jamal in the early 1990s making a mockery of its duty to ensure
equal justice under law.

That Court granted a new hearing to a Delaware murderer who
challenged prosecutorial reference to his current membership in a
violent white racist prison gang, citing the racist's First Amendment
free association rights.

Following favorable ruling for that avowed racist, Abu-Jamal
unsuccessfully sought Supreme Court reconsideration of its rejection
of his challenge of prosecutors violating First Amendment protections
by referencing his teenaged membership in the Black Panther Party.

Months after spurning Abu-Jamal's request, the Supreme Court granted
relief to a white Nevada murderer challenging prosecutorial reference
of his membership in a devil worshipping cult - citing its prison
racist ruling precedent.

Equal protection of laws seemingly should have provided an ex-Black
Panther with the same protection of rights extended to a racist gang
member and devil worshipper given similarities in their respective appeals.

While it's true that courts enjoy wide discretion in interpreting law
as those courts deem appropriate, disparate rulings in the Abu-Jamal
case raise real questions about courts acting in accordance with
America's bedrock principle of equal-justice-under-law.

The most disturbing aspect of the Abu-Jamal case is that evident
improprieties by police, prosecutors and jurists ignored in this
matter are deprivations endured daily by defendants nationwide,
undermining equal justice under law - that phrase chiseled above the
entrance to the U.S. Supreme Court building.

Linn Washington Jr., columnist for The Philadelphia Tribune, is a
former Yale Law Journalism Fellow who writes frequently about the
Abu-Jamal case and other issues involving race-based inequities in
America. He is author of Black Judges on Justice: Perspectives from
the Bench, published by The New Press.



http://www.indybay.org/newsitems/2010/01/26/18636298.php

Supreme Court opens door to Mumia’s execution

BY JEFF MACKLER Philly IMC

In a dangerous decision and a break with its own
precedent, the U.S. Supreme Court, on Jan. 19,
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. 19, 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 circumstance exists (sufficient to
impose a sentence of life imprisonment as opposed
to the death penalty) should have the right to
have that issue(s) 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 circumstance
for it 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, invoked Mills 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” has more than once
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, Mills cannot 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 Nazis 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.
This article was originally published in
Socialist Action newspaper, February, 2010.
http://freemumia.org


Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org