By JEFF MACKLER
Federal District Court Judge William H. Yohn’s Dec. 18 decision to overturn the 1982 death sentence imposed on Mumia Abu-Jamal was a product of the worldwide movement in Mumia’s defense. The political price of killing Mumia, an innocent man serving his 20th year on Pennsylvania’s death row for a murder he did not commit, 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 effectively rejected the decisions of the Pennsylvania Supreme Court, which had approved Sabo’s execution order, as it did the signing of two warrants for Mumia’s execution by the former governor, Thomas Ridge, now U.S. homeland security director.
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.
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. Yohn 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.
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 Philadelphia Police Officer Daniel Faulkner on Dec. 9, 1981.
The validity of Beverly’s confession was affirmed by leading lie detector expert Dr. Charles Honts but Yohn ruled that even if Beverly was “credible,” the evidence was submitted beyond the one-year statutory deadline. Mumia’s attorneys effectively refuted this statutory argument-but to no avail. Thus, Yohn’s ruling was based on the brief of the previous legal team, which did not include vital new evidence further exonerating Mumia.
Pennsylvania officials are still seeking Mumia’s execution by lethal injection. They have appealed Yohn’s decision to the U.S. Court of Appeals. If the state is successful, 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 (by having Arnold Beverly take the stand in person) and the evidence that Philadelphia police were complicit in Faulkner’s murder.
It will also include the new evidence in the recent affidavit of Evette Williams, who was imprisoned in the same jail with the prosecution’s chief eyewitness against Mumia, Cynthia White. Williams states that White confided to her that she had lied about seeing Mumia at the murder scene.
White lied, according to Williams, because the police threatened her with a long prison sentence based on numerous outstanding warrants for her arrest in several states.
White, a prostitute who had previously collaborated with corrupt Philadelphia police, had 38 convictions. She since has disappeared, with the police claiming she is dead. Mumia’s attorneys have challenged this assertion of White’s death and have submitted evidence refuting it.
Additional evidence has been presented by private investigator Michael Levine, who states that the prosecution’s other eyewitness, cabdriver Robert Chobert, told him that he too lied about seeing Mumia at the scene of the murder.
With Mumia’s frame-up unraveling, the prosecution has shown no inclination to allow this kind of testimony to be presented before any jury. Similarly, the various state and federal judges who have been confronted with the same evidence have refused to consider it, citing one or another spurious legal doctrines wherein credible witnesses and innocent people are irrelevant in regard to the present functioning of the criminal “justice” system.
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. Mumia’s attorneys have appealed Yohn’s decision at the federal level. But they also continue to pursue Mumia’s freedom in the state courts, where all new evidence must first be presented and litigated
Yohn has made any appeal extremely difficult. Utilizing the provisions of the reactionary AEDPA, he refused to grant a “certificate of appealability” in regard to 28 of the 29 points presented by Mumia’s original attorneys and he has rejected any consideration of the amended briefs submitted by the new legal team.
Yohn granted the right of appeal with 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.
Mumia’s defense team will ask the Court of Appeals, Third Circuit, to consider all 29 points in Mumia’s appeal, including the full amended appeal brief that contains the Beverly confession.
In the end, Mumia’s life rests in the power of human rights fighters and working people the world over rather than in 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.
Yohn has consciously and at least temporarily removed the death penalty issue because it has been an important factor that has helped to mobilize support for Mumia’s defense. The Philadelphia Inquirer echoed Yohn’s thinking in an editorial stating 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 abolition of the racist and classist death penalty in most of the world has 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.
For further information contact, in Philadelphia, the International Concerned Family and Friends of Mumia Abu-Jamal, (215) 476-8812. In San Francisco, call the Mobilization to Free Mumia Abu-Jamal, (415) 695-7745.
Jeff Mackler is a national coordinator of the fight to free Mumia Abu-Jamal.