U.S. Court of Appeals Denies Mumia a Re-Hearing

[by Jeff Mackler]

When I learned that the U.S. Court of Appeals for the Third Circuit had on July 22, 2008, denied Mumia Abu-Jamal a re-hearing—thus leaving Mumia’s fight for justice and freedom in the hands of the court of last resort, the U.S. Supreme Court—my immediate thought was that we were once again witnessing the operation of the racist “Mumia Exception.”

This is the notion that regardless of previous decisions and precedents of the U.S. judicial system—from the Third Circuit to the U.S. Supreme Court—when it comes to their application to Mumia’s case, the “law” means nothing.

A close look at Mumia’s case lends some credence to the “Mumia Exception,” or “Mumia Law” concept, as it is sometimes called. In virtually the exact same circumstances, bound by the important U.S. Supreme Court decision in the case of Batson v. Kentucky, the Third Circuit had previously thrown out convictions in capital cases when Blacks were excluded from juries.

In Mumia’s case, 11 of 14 Black jurors were excluded by preemptory challenges of the prosecution. One might have concluded that the three-judge panel of the Third Circuit that decided this issue four months ago in March 2008, might apply the same precedent and grant a new trial. They didn’t.

That’s why Mumia asked for a re-hearing before the whole panel, or nine judges of the Third Circuit. Maybe the entire court would remember that they themselves had previously decided this issue in several cases before them. Maybe they would remember that one of their own, Justice Alito, now sitting on the U.S. Supreme Court, had written the decision and had sharply noted that the exclusion of even one juror on account of race, voided the trial result. And maybe the Third Circuit would take into account that the U.S. Supreme Court, in a powerful decision in the Snyder case, only months before, had affirmed, if not strengthened its Batson ruling.

But this did not to come to pass. The Third Circuit, with nine judges participating, without comment, rejected the en banc (entire court) re-hearing that Mumia had requested.

Mumia’s attorney, Robert R. Bryan, commented: “Simply put, we did not receive the needed majority vote from the nine sitting judges; at least five votes for a rehearing were necessary. However, Justice Thomas L. Ambro continues to urge the granting of relief on the issue of racism in jury selection. That position, as detailed in his brilliant dissenting opinion of March 27, 2008, will continue to serve as a beacon of hope as we press on for a new trial and Mumia’s freedom.

“Judge Ambro said that the ‘core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of … race…. I respectfully dissent…’

Bryan’s report continued: “Mumia and I had a legal conference this afternoon [July 22]. He, as I, was stunned by the federal court’s refusal to grant relief since it flies in the face of established legal precedent in both the U.S. Court of Appeals and the U.S. Supreme Court. I am furious because racism continues to raise its ugly head in this country, and should have no place in our legal system.

“The indisputable facts are that the prosecutor engaged in racism in selecting the jury in this case, and that bigotry lingers today in Philadelphia. It would be naive not to realize that this case continues to reek of politics and injustice.”

Bryan told Socialist Action that he would file a petition for a writ of certiorari with the U.S. Supreme Court within 90 days or by Oct. 20, 2008. This is a request that the U.S. Supreme Court certify that they will hear the case. The court has no legal obligation to do so. Indeed it routinely rejects 90 percent of such petitions in death penalty cases.

If the Court denies the petition, Mumia’s legal options are finished. He will either remain in prison for the rest of his life with no possibility of parole, or will have to defend against renewed efforts by the state to seek his execution.

Bryan will also appeal the Third Circuit’s rejection of another critical issue raised in his defense. This is the fact that Pennsylvania prosecutor Joseph McGill told the jury in his summary remarks at Mumia’s 1982 trial that they need not concern themselves if they were not certain about Mumia’s guilt or innocence. McGill explained that this was because Mumia would have “appeal after appeal,” and therefore any errors that might have occurred could be corrected.

McGill’s “appeal after appeal” formulation had been the subject of appeals in several cases prior to Mumia’s, with the result that the convictions obtained was struck down and new trials ordered. In Mumia’s case the Third Circuit, apparently “forgot” its own precedent—that is, a reassertion of the fundamental principles that juries must find guilt “beyond a reasonable doubt,” that juries must begin with the presumption of innocence,” and that juries and only juries have the responsibility of determining guilt or innocence.

McGill’s assertion to the jury that they could effectively suspend any reasonable doubt they might have—and by implication, leave it to higher courts to determine guilt or innocence—was not challenged at trial by the presiding “Hanging Judge” Albert Sabo or by the Third Circuit.

“The Mumia Exception:” another look

A closer examination reveals that the “Mumia Exception” really doesn’t exist. The vast majority of capital cases, if not all cases, that come before the courts in capitalist America are riddled with race and class bias.

The ruling class itself is well aware of this fact, as is any student who embarks on the study of law in the U.S., not to mention the millions who are victims of this supposed system of “blind justice.” Capitalist law is the product of capitalist power—that is, it reflects the needs and interests of the corporate elite who rule America today. The U.S. has the highest incarceration rate in the world and the largest percentage of its population on death row.

This is not a statistical aberration. The United Nations recently issued a report condemning the U.S. for its race bias in what passes for its criminal “justice” system.

Today’s “prison industrial complex” serves multiple purposes. It provides a cheap source of labor, a few cents an hour, for hundreds of major capitalist industries and the increasingly privatized prison “industry” provides a ready source of capital paid to corporate outfits who profit handsomely from prison construction and administration.

Prior to 1996, when the U.S. Congress passed the infamous Anti-terrorism and Effective Death Penalty Act (AEDPA), signed by then President Bill Clinton, a full 40 percent of all state court convictions in capital cases were reversed on appeal to the federal courts. The reason? An important study found that police intimidation of witnesses, planting and falsification of evidence and incompetent counsel were rampant in the system.

But rather than correct the racist and classist “system,” an impossible task in the framework of capitalism, the government sought to intensify it by “effectively” eliminating appeals to the federal courts.

The AEDPA was in fact designed to abolish habeas corpus, the right to appeal to the federal courts. It accomplished this by replacing the historic “presumption of innocence” with a new requirement that federal courts were required to grant a “presumption of correctness” to the findings of what are essentially racist and classist state courts.

The implementation of this new criteria, essentially the barbaric imposition of a presumption of guilt, has produced an explosion of death-row inmates, a killing field of the oppressed who are awaiting execution, a phenomenon condemned throughout the world as the U.S. remains among the two or three nations to retain the death penalty.

It is therefore fair to say that the bias in Mumia Abu-Jamal’s case is symptomatic of the racism that permeates the criminal justice system in the U.S. rather than an exception to it. At the same time, it is also accurate to conclude that the entire court system—in the face of the power of the international movement that for 26 years has worked to challenge Mumia’s frame-up and prevent his execution—has geared up to justify its existence in the eyes of millions who still have illusions that they live in a democratic society.

The “appearance” of justice is important to the ruling rich, as they find it increasingly difficult to maintain this illusion. Hence the passage of the AEDPA, the Patriot Act, and the associated and massive infringements of civil and democratic rights that are justified in the name of pursuing the government’s “war on terrorism.”

The July 22 decision to reject Mumia’s appeal is but the tip of the iceberg in regard to the legal atrocities that have been committed to keep this innocent man on death row. His is a case study in the use of lying witnesses, falsification of evidence, manipulation of the crime scene, witness intimidation, police lying, exclusion of evidence proving innocence. His case also contains a myriad of constitutional violations, including rejection of Mumia’s right to act as his own counsel, his physical exclusion from a majority of trial proceedings against him, the racist exclusion of Black jurors, and a racist judge who ruled against more than 100 motions presented by Mumia’s defense team.

Indeed, Mumia’s original federal appeal included 29 instances of constitutional violations based on the facts of the case, 28 of which were rejected on the grounds that the AEDPA today requires federal courts to presume that the “facts” found by the racist court of Judge Sabo must be presumed to be correct. After 26 years, they have all been proven to be fabrications, a fact that has zero weight in today’s criminal justice system.

This is no exaggeration. A low point in Mumia’s legal battle came in the statement of Federal District Court Judge William H. Yohn Jr., who cited a Supreme Court ruling that “innocence is no defense.”

Yohn’s citation was in response to clear evidence produced by Mumia that he had not been and could not have been the person who murdered Police Officer Daniel Faulkner on Dec. 9, 1981. Yohn’s logic held that innocence is trumped by timeliness—that is, if the evidence is submitted beyond a statutory deadline, even if conclusive, it is irrelevant. The legal process must embody “finality,” says the “law of the land” today, even if the final result is the execution of an innocent man.

Mumia’s legal appeal must be accompanied by a reinvigorated and massive expansion of the movement that has fought so hard and long for his freedom. As we go to press, the International Concerned Family and Friends of Mumia Abu-Jamal, the Mobilization to Free Mumia Abu-Jamal, and several other defense groups across the country are preparing coordinated plans to challenge the latest court decision and to make the political price of Mumia’s continued incarceration too high to pay. They seek a new trial and Mumia’s freedom.

At the same time, the state of Pennsylvania is evaluating whether it will proceed with their efforts to reverse a previous federal district court decision that ruled that the death penalty had been improperly imposed. Pending the outcome of the state’s decision, Mumia remains on death row. The threat of execution by lethal injection remains on the table.

For further information contact ICFFMAJ, (215) 476-8812 or the Mobilization to Free Mumia Abu-Jamal, (510) 268-9429, freemumia.org.

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SPONSORED By THE MOBILIZATION TO FREE MUMIA ABU-JAMAL & THE INTERNATIONAL CONCERNED FAMILY AND FRIENDS OF MUMIA ABU-JAMAL. CO-SPONSORS: Courage Foundation/Assange Defense.org & Middle East Children’s Alliance, Arab Resource Organizing Center. HEAR Alice Walker, prize-winning novelist; Daniel Ellsberg of the Pentagon Papers; Jamal Jr, Mumia’s grandson; Chris Hedges, prize-winning journalist