Wednesday, November 17, 2010

What does Mumia face legally after the Nov 9th hearing?


The only legal options that were considered by the Third Circuit
Court of Appeals, a federal court immediately below the US Supreme
Court, at the November 9 hearing were whether Mumia Abu-Jamal is to
be executed or get life in prison without parole. The question of
Mumia's guilt or innocence and the opportunity of a new trial was not
part of this hearing. The Third Circuit decided that issue in March
2008 in a decision made by the same three judges who conducted this hearing.

To grasp the significance of this hearing, one needs to revisit
Federal District Court Judge William Yohn, Jr.'s decision of December
18, 2001. In that ruling the judge upheld Mumia's conviction but at
the same time threw out his death sentence on the grounds that the
verdict form used by the jury for sentencing at his trial violated
the U.S. Supreme Court's Mills precedent, thereby prejudicing the
jury toward the death penalty rather than life in prison. Yohn then
gave the state 180 days to convene a new jury trial only on the issue
of Mumia's penalty, in which the choices would be either death or
life in prison without parole. On the other hand, if the state did
nothing, Yohn ruled that Mumia would automatically be sentenced to
life in prison without parole.

At the time he made this decision, Judge Yohn stayed his ruling on
overturning the death sentence while the prosecution appealed his
decision to the next higher level of federal court, the Third Circuit
Court of Appeals. (At the same time Mumia appealed Judge Yohn's
decision upholding his conviction). Mumia was therefore never removed
from Death Row and remains there to this day.

On March 27, 2008, the Third Circuit upheld Yohn's decision on the
death penalty in a 3-0 vote. Again the decision was stayed while the
state appealed to the highest federal level, the Supreme Court. (In
the same decision, the Third Circuit rejected Mumia's appeal on the
conviction by 2-1 that is, finding him guilty and, as before, Mumia
appealed that ruling.)

On April 6, 2009 the US Supreme Court refused to hear Mumia's appeal
of the Third Circuit's decision upholding his conviction.

On January 10, 2010, the Supreme Court ordered the Third Circuit to
reconsider its decision on the death sentence in light of its
unanimous rejection of an appeal from a white-supremacist named
Spisak. That man admitted to killing at least two people in Ohio and
openly stated that he wished to have murdered more. He had appealed
his death sentence also as a violation of the Mills precedent, but
involving a different aspect of it than Mumia's case. The Sixth
Circuit, as did the Third Circuit in Mumia's case, ruled that the
death sentence should be thrown out. However, the Supreme Court ruled
that the Mills precedent did not apply in Spisak's case, and
therefore execution rather than life in prison was the appropriate
penalty. Based on that decision, the Supreme Court questioned the
Third Circuit's ruling in Mumia's case, and asked it to reconsider
the issue of execution for him as well.

Thus, the hearing on November 9th was on Mumia's penalty only. The
choices before the court were either to sustain Yohn's and its own
earlier decisions or to reinstate the death penalty. According to
those in the courtroom, the attorney who represented Mumia on this
issue, Judith Ritter, argued the applicability of the Mills precedent
very convincingly. On that basis Mumia's death sentence should not be
reinstated. The history of Mumia's case, however, has shown that
precedent and effective arguments, as in the argument of racial bias
in jury selection made before the same three judges three years ago,
are often ignored by the court in favor of a political agenda at
least to keep Mumia locked up if not executed and completely
silenced. That racial bias issue easily could have resulted in
Mumia's conviction being thrown out, but in a split 2-1 vote, the
judges established a new precedent just for Mumia. (All three judges
blew off the question of Mumia's innocence).
After hearing the arguments and asking questions, Chief Judge Scirica
said that the court would 'take the matter under advisement'.) It may
be months before a decision is announced.

If the Third Circuit reaffirms its earlier decision to sentence Mumia
to life in prison without parole, the state will most likely appeal
to the Supreme Court. If that court agrees with the Third Circuit, or
in the unlikely event that the state doesn't appeal at all, the state
then will have 180 days to implement Judge Yohn's decision.

In that case the prosecution would have to decide whether to do
nothing and let the life sentence
stand or ask for a new penalty trial (which would take place in a
Pennsylvania state court) in the hope of "winning" a death sentence
again. Mumia would certainly want the latter to happen since it would
give him some opportunity to introduce new evidence challenging the
prosecution's version of what happened on December 9, 1981, which was
the basis for the jury's guilty verdict at his 1982 trial. Thus,
while this proceeding would not be a trial on the question of guilt
or innocence, but only a hearing on the sentencing issue, new
evidence that could undermine Mumia's conviction itself might be introduced.

If the Third Circuit rules against Mumia, Mumia will surely appeal to
the Supreme Court. But the odds for the Supreme Court to overturn the
Third Circuit's decision favoring execution are very small given the
reactionary composition of that court.

However, even if the Supreme Court rules for a death sentence, Mumia
would still have some legal options. Back in 2001, when Yohn threw
out the death penalty based on the Mills precedent, he did not deal
with several other issues raised by the defense. Therefore, Mumia
would have the right to go back before Judge Yohn and ask him to
address these other significant issues related to the improper
sentencing process at his trial. Such a hearing, though limited to
life in prison or execution, would inevitably also include challenges
to the prosecution's version of what happened at the crime scene.
This would especially be true if grassroots work continues to expose
the fraudulent nature of the trial and appeals process as has been
done dramatically in the last few years; for example, through the
release of the long hidden photographs of the crime scene, and the
evidence that four people, not three, were present at that scene.
This would also be true if grassroots work continu es to press for a
Department of Justice civil rights investigation and draws greater
support and activism. Not only might the death penalty be once again
overturned, but Mumia's conviction itself might get thrown out.

Mumia's legal situation remains extremely dangerous as the
re-imposition of the death sentence would surely be a big setback in
his struggle to demonstrate his innocence. The authorities in
Philadelphia are mobilizing for Mumia's execution, and the Supreme
Court seems likely to be sympathetic to that agenda. But even with
that being said, the right that remains for Mumia to go back to Judge
Yohn is very important for opening up space to expose the level of
injustice, the violation of due process, and the racism that has
permeated the entire history of this case. While the US legal system
looks very powerful and impenetrable to justice, the grassroots
movement in the US combined with international pressure could force
the courts to make decisions that they otherwise would not. Surely
Mumia's being alive today, despite three attempts to kill him, twice
with scheduled execution days, is a tribute to the massive struggles
waged by people across this globe.

The Free Mumia Abu-Jamal Coalition
International Concerned Family and Friends of Mumia Abu-Jamal

--Mumia is Innocent! Stop the Frame Up! Free Mumia!--

Free Mumia Abu-Jamal Coalition, NYC
P.O. Box 16, College Station, NY, NY 10030

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