by Jeff Mackler
In a dangerous decision and a break with its own precedent, the U.S. Supreme Court, on Jan. 15 opened the door wide to Pennsylvania prosecutors’ efforts to execute innocent political prisoner, murder frame-up victim, award-winning journalist and world renowned “Voice of the Voiceless,” Mumia Abu-Jamal.
Six months earlier, on April 6, the Supreme Court all but shut the door on Mumia’s 28-year fight for justice and freedom when it refused to grant a hearing (writ of certiorari) despite it’s own decision in the 1986 case of Batson v. Kentucky that the systematic and racist exclusion of Blacks from juries voids all guilty verdicts and mandates a new trial.
In Mumia’s 1982 trial, presided over by the infamous “hanging judge” Judge Albert Sabo, Pennsylvania prosecutor, Joseph McGill, in explicit violation of Batson, used 10 of his 14 peremptory strikes to exclude Blacks from the jury panel. But as with virtually all Mumia court decisions over the past decades the “Mumia Exception,” a consistent and contorted interpretation of the “law” or abject blindness to it, has been employed to reach a predetermined result. Mumia’s frame-up murder conviction was allowed to stand.
In contrast, on Jan. 15, 2010 Pennsylvania prosecutors, twice rejected in their efforts to impose the death penalty on Mumia (in 2001 and 2008), were given yet another opportunity to do so when the Supreme Court remanded the sentencing issue of life imprisonment versus execution to the U.S. Court of Appeals for the Third Circuit. The latter was instructed to take into consideration the high court’s new ruling in the Ohio case of Smith v. Spisak.
Frank Spisak, a neo-Nazis who wore a Hitler mustache to his trial, denounced Jews, and Blacks and confessed in court to three hate crime murders in Ohio, saw his jury-imposed death sentence reversed in the federal courts when his attorney’s successfully invoked a critical 1988 Supreme Court decision in the famous Mills v. Maryland case. Mills requires that in order to find mitigating circumstances sufficient to impose a sentence of life imprisonment without parole, as opposed to the death penalty, the jury’s majority decision (as opposed to unanimous decision) on each mitigating circumstance is sufficient.
In both Spisak and Mumia’s case the trial court judge violated the Mills principle and in essence instructed the juries that unanimity, not a majority vote on each mitigating circumstance was required. As a consequence, Federal District Courts in both Ohio and in Pennsylvania (in the case of Mumia), later backed by decisions of the U.S. Courts of Appeal, invoked Mills to overrule the jury-imposed death sentence verdicts. They ordered a new sentencing hearing and trial where evidence of innocence could be presented but where the jury was bound by the previous jury’s guilty finding.
Even so, the sheer existence of the mountain of evidence proving Mumia’s innocence that has long been suppressed drives Mumia’s prosecutors to avoid a new trial at all costs. A new trial of any sort could only expose, with unpredictable consequences, the base corruption of a criminal “justice” system permeated by race and class bias. Executing innocent people does not sit well with the American people. In the courts of the elite as in life itself nothing is written in stone. The “law” has more than once been “adjusted” in the interests of the poor and oppressed when the price to pay by insisting on its immutability is too costly in terms of doing greater damage to the system as a whole.
The effect of the 1988 Mills decision was to make it harder for prosecutors to obtain death sentences in capital cases; the effect of Spisak is to make it easier. Armed with this new Supreme Court weapon and order to reconsider the application of Mills, Pennsylvania prosecutors will once again seek Mumia’s execution before the Third Circuit.
Prior to this unexpected turn of events and for the past 22 years, the broad U.S. legal community appeared to agree that Mills applied to all states. That is, if a jury was orally mis-instructed and/or received faulty or unclear verdict forms that implied it needed to be unanimous with regard to mitigating circumstances sufficient to not impose the death penalty, the death penalty was set aside and a new sentencing hearing was ordered.
This is what happened in Mumia’s case when Federal District Court Judge William H. Yohn in 2001 employed Mills to set aside the jury’s death penalty decision. Yohn gave the State of Pennsylvania 180 days to decide whether or not to retry Mumia or to accept a sentence of life imprisonment.
Since then, Pennsylvania officials have effectively stayed Yohn’s order by appealing to the higher federal courts. The Supreme Court gave them the victory they sought.
In deciding to hear Ohio prosecutors’ arguments in the Spisak case with regard to Mills the Supreme Court implied that a new interpretation of the concept of federalism was in the making. The political pendulum has swung back and forth on this issue. In past decades, a “states’ rights” interpretation was employed to justify racist state laws that denied Blacks access to public institutions and facilities. With the rise of the Civil Rights movement federal power was used to compel the elimination of the same racist laws. Justice has been far from blind in America. It is applied to the advantage of the working class and the oppressed only to the extent that the relationship of forces, that is, the struggles of the masses, demand it.
Since Mills was decided based on the facts in the state of Maryland only, Ohio and Pennsylvania prosecutors argued, Mills cannot be automatically applied to other states where a different set of jury instructions and jury forms were involved. Indeed, Ohio prosecutors argued before the Supreme Court on October 13 that Ohio and Pennsylvania were the exception and not the rule and that the norm in other states was to essentially reject a strict interpretation of Mills in favor of various state guidelines regarding jury instructions.
In every sense Mumia’s life is on the line as never before. Pennsylvania’s Governor Ed Rendell is pledged to sign what could be the third and final warrant for Mumia’s execution. Opinions vary as to the timeline for a final decision of the Third Circuit. Indeed, the Third Circuit could in turn remand the Mills issue back to Judge Yohn’s Federal District Court and any decision made therein might well be appealed by either side back to the U.S. Supreme Court. The process could take months or years, but the deliberations will be based on a new turf that leads closer to the death penalty for Mumia than ever before.
Mumia’s supporters around the world and Mumia himself have long noted that the battle for his life and freedom largely resides in our collective capacity to build a massive movement capable of making the political price of Mumia’s incarceration and execution to high to pay. Mumia is alive and fighting today because of that movement. To get involved contact The Mobilization to Free Mumia Abu-Jamal in California, 510-268-9429 or the International Concerned Family and Friends of Mumia Abu-Jamal in Pennsylvania, 215-476-8812.