by Jeff Mackler / December 2005 issue of Socialist Action newspaper
In a decision that will likely stun the Pennsylvania legal establishment that has been trying to railroad death-row political prisoner and journalist Mumia Abu-Jamal to the execution chambers for 24 years, the U.S. Court of Appeals of the Third Circuit, reversed two critical Federal District Court rulings.
The Third Circuit’s Dec. 6 rulings granted “certificates of appealability” to Jamal to challenge
alleged race and judicial bias in the 1995 Post Conviction Relief Action proceedings overseen by Mumia’s original 1982 trial court “hanging” judge, Albert Sabo. Sabo went to extreme lengths to keep evidence of innocence out of the court record.
The court also allowed Mumia to challenge the trial summation remarks of the state’s lead prosecutor, Joseph McGill, who told the jury, ” If you find the defendant guilty, of course, there would be appeal after appeal, and perhaps there could be a reversal of the case, or whatever, so that may not be final.”
Mumia’s lead attorney, Robert R. Bryan, told Socialist Action that McGill’s summation had the effect of qualitatively lowering the historic burden of proof regarding reasonable doubt and presumption of innocence. Similar remarks by Pennsylvania prosecutors have resulted in new trials in other cases.
The Third Circuit’s decision was all the more remarkable in that under the provisions of the
reactionary 1996 Anti-terrorism and Effective Death Penalty Act, the court had no obligation to even consider defense challenges to the Federal District Court’s denial of certificates of appealability.
The court called for an initial Jan. 17 defense brief on these two issues as well as on the single issue that had previously been certified for appeal—that is, the defense insistence that the exclusion of 11 of 14 Black jurors constituted an unconstitutional violation of the Supreme Court ruling in the case of Batson v. Kentucky.
The Third Circuit’s decision was not all in favor of Mumia. It denied certificates of appealability on a number of other important points raised by the defense, including the right to self-representation, and it allowed the state of Pennsylvania to challenge a Federal District Court decision that had ordered the state to hold a new sentencing hearing based on constitutionally flawed jury instructions issued by Judge Sabo.
“The Third Circuit decision opens the door to a new trial and freedom for my client,” Bryan told Socialist Action. “The case is now on the fast track,” he added. The next several months will see defense and prosecution attorneys meeting stringent deadlines for a series of briefs and counter briefs. The 10-person court will then issue a decision or set a date for a hearing and oral arguments.
There are several possible outcomes. The worst—but least expected—scenario would be one in which Sabo’s unconstitutional sentencing instructions are upheld, and Mumia faces execution. On the other hand, the Third Circuit could either order a new trial or remand
the case to the Federal District Court to re-hear the issues on which it had previously ruled without regard to Mumia’s constitutional rights.
While Mumia has won yet another victory on the road toward his freedom, the powers that be are far from conceding any errors and remain intent on his execution. Mumia’s freedom will be a product of both his legal efforts and a mass political movement exerting its will and making the price of his execution and continued incarceration too high for the authorities and the ruling class to pay.
In Philadelphia, contact the International Concerned Family and Friends of Mumia Abu-Jamal, (215) 476-8812. In San Francisco, contact the Mobilization to Free Mumia Abu-Jamal, (415) 255-1085.