Latest Development in Mumia Case

by Michael Schreiber

[The following article appears in the December 2010 edition of Socialist Action newspaper.]

PHILADELPHIA—On Nov. 9, several hundred people rallied outside the federal courthouse here to “Free Mumia!” Inside the building, meanwhile, a three-judge panel deliberated over the fate of Mumia Abu-Jamal, the political prisoner and noted Black journalist who has been on Pennsylvania’s death row for close to 28 years. Mumia was sentenced to death in 1982 after being convicted on false charges of killing Daniel Faulkner, a Philadelphia police officer. A large amount of evidence has come to light since then indicating that Mumia was the victim of a police frame-up.

The Third Circuit Court of Appeals was in session Nov. 9 to hear arguments as to whether unclear instructions to the jury during the sentencing phase of Mumia’s trial might have encouraged the jurors to choose the death penalty for him instead of life in prison. Almost three years ago, the same three judges had agreed that this appeared to be the case, and ordered a new sentencing hearing for Mumia. But Pennsylvania state prosecutors appealed their decision, and this year, the Supreme Court asked the Third Circuit to reconsider.

The legal build-up for the recent hearing goes back to 2001, when Federal District Judge William Yohn overturned Mumia’s death sentence. Yohn maintained that the sentencing procedure had violated the U.S. Supreme Court’s 1988 Mills v. Maryland decision.

The Supreme Court had determined in Mills that instructions given to jurors in the trial might have caused them to believe that “they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular mitigating circumstance.” Mumia’s attorneys had argued, and Judge Yohn agreed, that the language of the written form given to jurors in Mumia’s trial had similarly misled them. The verbal instructions given by trial judge Albert Sabo, the attorneys said, further confused the jurors.

The state appealed Yohn’s ruling to the Third Circuit Court of Appeals, which upheld his decision on March 27, 2008. But Mumia remained on death row while prosecutors appealed the Third Circuit’s decision to the Supreme Court.

On Jan. 10, 2010, the Supreme Court ordered the Third Circuit to reconsider its decision on Mumia in light of the High Court’s recent rejection of an appeal by Frank Spisak, a neo-Nazi on Ohio’s death row. The Court had ruled that Mills did not apply in Spisak’s case—thus introducing the possibility of a narrower interpretation of Mills that might open the door for the Third Circuit to reverse its previous decision.

Mumia Abu-Jamal was represented before the Third Circuit on Nov. 9 by Judith Ritter, a professor at Widener law school. Ritter, who had previously and successfully argued Mumia’s case before the same three-judge panel, effectively demonstrated that the facts in his case applied directly and unambiguously to the criteria in the Mills decision and that the court must sustain Yohn’s original ruling as well as their own previous decision. But state attorney Hugh Burns asserted that Mumia’s sentencing appeal was “virtually the same” as that of Spisak, and on that basis the court should reinstate the death penalty.

Burns was somewhat embarrassed when one of the judges agreed with Ritter that Judge Sabo had employed the word “unanimous” perhaps “seven, eight, or more times” when instructing the jury of its obligations in regard to finding mitigating circumstances. Ritter said that this was “misleading advice,” and counter to the Supreme Court’s intent in Mills v. Maryland. The rejection of such unanimity is at the core of the Mills decision, which explicitly allows even a single juror to put forward a mitigating circumstance for the jury’s consideration.

The three judges appeared to be receptive to Ritter’s arguments, while directing their sharpest questions to the state attorney. Following the hearing, Ritter was upbeat. She told reporters outside the courtroom: “This court two years ago saw a violation of Mills. I don’t believe the judges believe that their earlier decision was incorrect. Nothing has changed that should change their minds.”

But caution is in order. In what some have called the “Mumia exception,” the federal court system has frequently found a way to refuse to apply legal precedents to Mumia’s case. Notwithstanding the fact that other prisoners have obtained redress in similar circumstances, Mumia Abu-Jamal always merits special handling as a political prisoner.

The Third Circuit Court could take several months to render its decision. If it reaffirms its earlier decision to sentence Mumia to life in prison without parole, the state will likely appeal to the Supreme Court.

The state also has the option of asking for a new penalty trial in a Pennsylvania state court, in the hope of obtaining a death sentence again. But the state might wish to avoid such a hearing because of the danger that the defense could present witnesses and new evidence that raise strong questions about Mumia’s guilt. This might include items such as the long-hidden photographs taken by Pedro Polakoff at the crime scene in 1981, which contradict the scenario put forth by police and the prosecution.

While such evidence would not have direct legal ramifications in Mumia’s case, it would be highly embarrassing to the prosecution in the “court of public opinion.”

Mumia, too, would have an opportunity to appeal to the Supreme Court if the Third Circuit were to decide for the death penalty. But given the Supreme Court’s highly reactionary composition, it is unlikely that it would overturn the lower court’s decision.

Nevertheless, even if the court rules for a death sentence on this issue, other legal avenues remain open for future appeals by Mumia’s defense. Mumia has the right to ask Judge Yohn to address those issues related to the improper sentencing process in his trial that the judge had left open in 2001.

In this period of final court appeals, the state is mustering its forces to send Mumia to the death chamber. It is essential that all those who cherish civil liberties, all those who oppose the horrendous death penalty, likewise mobilize in public forums and the streets to save the life of an innocent man. Twice before, the Pennsylvania governor signed an order to execute Mumia, and twice before, his death was averted at the eleventh hour—due in large part to the massive outcry of rage that arose around the world.

We must not allow Pennsylvania’s incoming right-wing governor, Thomas Corbett, to sign yet another (and final) order to take Mumia’s life. Free Mumia!

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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 & 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