By JEFF MACKLER
There is no doubt that the Dec. 18, 2001, decision of Federal District Court Judge William H. Yohn Jr. to overturn the 1982 death sentence imposed on the award-winning journalist and human rights fighter Mumia Abu-Jamal was a product of the worldwide movement in his defense. The political price of killing Mumia, an innocent man, has become at least for the moment, too high to pay.
Judge Yohn was forced to vacate the death penalty sentence imposed by the Pennsylvania state court presided over by the racist “hanging judge” Albert Sabo, who had sentenced more people to death than any sitting judge in the country. Yohn’s decision was front-page and prime-time news in the major media across the country. The San Francisco Chronicle banner headline read: “Reprieve for Mumia.”
Twenty years of struggle forced Yohn to rule that Judge Sabo’s sentencing instructions had violated Mumia’s fundamental constitutional rights. The decision implicitly rejected the decisions of the Pennsylvania Supreme Court, which approved Sabo’s execution order as it did the signing of two warrants for Mumia’s execution by former Pennsylvania Gov. Thomas Ridge, now U.S. Homeland Security Director.
Yohn held that Judge Sabo improperly told the jury that they had to be unanimous in order to find mitigating circumstances that would allow them to sentence Mumia to life imprisonment rather than execution.
But Judge Yohn’s 272-page decision upheld Mumia’s original frame-up murder conviction. Citing spurious legal technicalities and “facts” that have long been refuted by the defense, he ignored the mountain of evidence proving Mumia’s innocence as well as the myriad of constitutional violations in Mumia’s case.
Yohn’s decision relied heavily on the infamous 1996 Anti-Terrorism and Effective Penalty Act (AEDPA), which severely restricts the rights of defendants to introduce new evidence proving their innocence.
This Clinton-signed bi-partisan legislation for the first time reversed the historic presumption of innocence and now compels federal judges to grant a “presumption of correctness” to the findings of state court judges.
Yohn, citing the AEDPA, ruled that federal court judges are not in the business of determining the facts of a case-only the constitutional issues. Facts are within the purview of the state courts only, according to Yohn. He ruled that Sabo’s “finding of fact,” even though contradicted by a mass of evidence provided by the defense proving that the prosecution’s key eyewitnesses had lied, had to be upheld.
This legal absurdity and its application to Mumia’s case is the latest product of a frenzied ruling class seeking to ramrod the poor to prison with few if any rights.
Yohn rejected 29 of the 30 legal and constitutional issues raised in Mumia’s original federal appeal filed 22 months ago by his previous legal team, headed by Leonard Weinglass.
In a separate 30-page decision, Yohn rejected consideration of the amended federal brief presented by Mumia’s new attorneys, Marlene Kamish and Elliot Grossman. This brief included the affidavit of the confessed killer, Arnold Beverly, that he, not Mumia Abu-Jamal, had killed Police Officer Daniel Faulkner on Dec. 9, 1981. Yohn refused consideration of the Beverly confession on the grounds that, even if it was “credible,” it was submitted beyond the one-year statutory deadline. Mumia’s attorneys effectively refuted this statutory argument-but to no avail.
With regard to point 25 of Mumia’s brief, dealing with Sabo’s flawed instructions to the jury, Yohn ordered the state of Pennsylvania to hold a new sentencing hearing within 180 days. If the state fails to do so, he ordered, Mumia will be sentenced to life imprisonment without parole.
Mumia still on death row
Pennsylvania officials, however, are still seeking Mumia’s execution by lethal injection. They stated that they will appeal Yohn’s decision and filed initial papers to that effect.
This action stayed Yohn’s order vacating the execution order. It prevented Mumia from being transferred from the death row wing of State Correctional Institute Greene at Waynesburg, Pa., to the general prison population, where-for the first time in 20 years-he would have had the right to physical contact with his family and friends.
If the state prosecutors are successful in appealing Yohn’s decision to the Third Circuit of the U.S. Court of Appeals, Mumia may still be executed. If they are not, Mumia’s tormentors can still seek the death penalty before a new jury in a new sentencing hearing.
This jury will be instructed that they must decide between only two alternatives, death or life imprisonment. But Mumia’s attorneys have stated that they will exercise their right to introduce all evidence “mitigating” the death sentence. This includes the Beverly confession, in person, and the evidence that Philadelphia police were complicit in Faulkner’s murder. Given this possibility, there is no telling what a jury may conclude.
Legal observers expect that the ensuing legal battles will be played out over the course of several years. For the moment at least, the millions of supporters of Mumia’s fundamental rights have won a critical but only partial victory.
After 20 years of state insistence that Mumia’s trial was in perfect order, a crack has been opened in the solid wall of official denial that Mumia’s rights were violated. Yohn’s decision affirmed that Mumia was made to illegally endure 20 terrible years in a tiny isolated cell 23 hours daily, separated from all human physical contact.
Mumia’s attorneys will immediately appeal Yohn’s decision, but Yohn has made this extremely difficult. Utilizing the provisions of the AEDPA, Yohn refused to grant a “certificate of appealability” in regard to 28 of the 29 points presented by Mumia’s defense.
Yohn granted this certificate in regard to only point 16 dealing with the prosecution’s use of its preemptory challenges to remove 11 Black jurors.
While Yohn ruled that Mumia’s rights were not violated in regard to this point, there are now several cases that closely resemble Mumia’s in which federal courts have reversed convictions where racist jury selection was demonstrated. The latest involves a case where the Philadelphia District Attorney had developed training tapes to instruct prosecutors as to how to eliminate Black jurors.
Mumia’s defense team will ask the Court of Appeals to consider all 29 points in Mumia’s appeal including the full amended appeal brief that contains the new evidence regarding the Beverly confession. While the AEDPA holds that only those issues that Yohn certifies as appealable can now be taken to higher courts, the Court of Appeals can itself decide to grant a certificate of appealability of Yohn’s rulings.
Decades of legal proceedings have demonstrated that there are countless variations as to what legal course the case may take. The defense, for example, has announced that it will also appeal the recent state court decision of Judge Pamela Dembe, who refused to grant Mumia a new Post Conviction Relief Act hearing to present the killer Arnold Beverly as a witness on Mumia’s behalf.
Opposition growing against death penalty
In the end, Mumia’s life rests in the power of human rights fighters and working people the world over rather than the “good will” or “adherence to the truth,” of whatever judge is assigned to the case. Absent the enormous movement that has already been constructed, Mumia would have perished long ago at the hands of a state power intent on scapegoating Mumia and millions more for the social disintegration that is a daily feature of capitalist society.
For the ruling rich it is more profitable to build prisons than schools and more profitable to incarcerate millions than provide decent jobs for all.
At the current rate, by the year 2053, half the adult population of the United States will be in prison or under the jurisdiction of the criminal “justice” system-an astounding statistic. The U.S. already leads the world in the number and percentage of its population behind bars. It leads in the number of executions and prisons constructed.
Mumia stands out today among the leading critics of a social system gone amuck. His widely reprinted commentaries regularly oppose U.S. imperialist intervention and social injustice everywhere.
From the vantage-point of the corporate elite, Yohn’s decision was instructive. The New York Times, in its Sunday, Dec. 23 issue, reprinted a cartoon from the Philadelphia Daily News. The first part has a dreadlocked Mumia, denouncing the racist death penalty, standing atop a table rigged for execution, replete with straps and intravenous tubes ready to deliver an injection of deadly poison. The second part has a black-robed judge, presumably Yohn, pushing the execution apparatus out of the room, leaving Mumia stranded in the air with a quizzical look on his face.
The message is clear. Yohn has removed the death penalty platform as a factor that has helped to mobilize support for Mumia’s defense. The Philadelphia Inquirer makes the same point in a different way. In an article opposing the death penalty, the Inquirer offers an editorial concluding that Mumia “is in the right prison but the wrong wing,” that is death row.
Undoubtedly, Yohn’s decision comes at a time when both the worldwide and U.S. opposition to the racist death penalty is on the rise. The major capitalist competitors of the United States in Europe and Japan have long ago abolished the death penalty. Resentful of U.S. military and economic hegemony, including U.S. unilateral abrogation of a number of environmental and military treaties, they seek to profit by U.S. vulnerability whenever possible.
In Europe, where police murder and racist violence is also on the rise, it is convenient for the ruling rich to pose as humane representatives of “civilization” in order to score a few points against the U.S. with regard to the death penalty.
The abolition of the racist and classist death penalty in most of the world has nonetheless been a victory for all working people. Contrary to the political pundits who speculate that Yohn’s ruling will cut the ground out from under Mumia’s supporters, it is clear that support for Mumia’s freedom extends far beyond those whose support is limited to the death penalty issue.
Still, a social movement with the power to win Mumia’s freedom has yet to be constructed. This requires that Mumia’s supporters maintain and expand the unity and depth of support that has thus far stayed the executioner’s hand.
A top priority is bringing Mumia’s fight to the broad labor movement, to working people in general, to the masses of Black and Latino workers who suffer the most from the racist criminal justice system, and to the new generation of emerging youthful fighters.
For further information contact, in Philadelphia: the International Concerned Family and Friends of Mumia Abu-Jamal, (215) 476-8812.
In San Francisco: the Mobilization to Free Mumia Abu-Jamal, (415) 695-7745.
Jeff Mackler is a national coordinator of the fight to free Mumia Abu-Jamal.
Amy Goodman Speaks for Mumia
Some 1700 S.F. Bay Area Mumia activists and free speech radio supporters rallied at Mission High School on Dec. 15 to hear banned Pacifica Radio journalist, social critic, and host of “Democracy Now! In Exile,” Amy Goodman.
Goodman’s presentation focused on Mumia’s case, the U.S. war in Afghanistan, and the free speech fight at Pacifica. Mumia attorney Elliot Grossman presented the key elements of Mumia’s struggle, and actor Danny Glover stressed the need for broad unity in support of Mumia.
The event was co-sponsored by the Mobilization to Free Mumia Abu-Jamal, Friends of Free Speech Radio, and the Media Alliance. Close to $20,000 was raised.
