by Jeff Mackler, the director of the Northern California-based Mobilization to Free Mumia Abu-Jamal.
The U.S. Court of Appeals for the Third Circuit in Philadelphia ruled on April 26 that world-renowned and innocent death-row inmate Mumia Abu-Jamal must either receive a new sentencing hearing within six months or have his 1982 jury-imposed death-penalty sentence reversed and be incarcerated for life in the general prison population without possibility of parole.
Jamal, 58, was framed up for the 1981 murder of Philadelphia police officer Daniel Faulkner, despite massive evidence that he had nothing to do with Faulkner’s murder. An award-winning journalist at the time—and today a leading critic of racist, anti-working-class, and imperialist U.S. policies—Jamal is the author of nine books. His weekly news commentaries are published in radical and social justice newspapers around the world.
Mumia has become an international symbol of opposition to the racist and classist U.S. criminal “justice” system, which today incarcerates some 3500 people—the majority poor, Black, and Latino—in its growing death-row institutions, and 3.5 million in its increasingly for-profit and virtually slave-labor prison-industrial complex. An astonishing 7 million people are today in U.S. prisons or under the jurisdiction of the system’s various institutions.
The Third Circuit’s decision reaffirmed its own 2008 ruling on the same issue, as well as the original 2001 decision of Federal District Court Judge William H. Yohn. Both courts found that the sentencing instructions presented to Mumia’s jury in 1982 by “hanging judge” Albert Sabo violated the Eight Amendment to the U.S. Constitution and the U.S. Supreme Court’s precedent-setting case, Mills v. Maryland, wherein the Court had ruled that flawed jury instructions akin to Sabo’s were unconstitutional.
Sabo instructed the jury during the sentencing phase of Mumia’s frame-up murder trial that they must be unanimous with regard to each possible mitigating circumstance in order to determine whether such mitigation could later be considered in weighing whether or not to impose the death penalty versus life imprisonment without parole.
Sabo’s instructions, and the associated written forms that jurors were given while deliberating Mumia’s sentence, essentially implied that a single juror had the right to exclude from consideration any mitigating circumstance. The Third Circuit disagreed and reaffirmed its 2008 ruling that a single juror may find a mitigating circumstance that in his or her view outweighs all aggravating circumstances. This alone would be sufficient to prohibit a death penalty sentence and require a sentence of life imprisonment. This eventuality assumes, of course, that the jury first finds the defendant guilty by unanimous vote.
Mumia’s trial was a legal, political, and racist atrocity, so much so that human rights, labor, and social justice groups from Amnesty International, the NAACP and the California Labor Federation to the European Parliament and thousands of labor unions and internationally prominent individuals around the world condemned it and demanded Mumia’s freedom and/or a new trial.
As the case wound its way through the criminal “justice” system, a series of gross violations of Mumia’s legal rights, including blocking direct evidence of his innocence in the case, was systematically employed to march Mumia toward the death chambers. He has been held in a tiny and isolated cell at the maximum security SCI Greene prison in rural Pennsylvania for almost three decades.
The mind-boggling resort to spurious interpretations of the “law”—”innocence is no defense”—and the passage of new laws that make the presentation of evidence of innocence virtually impossible, brought to light the government’s “Mumia Exception” policy, wherein the law “in all its majesty” applies fully to everyone except Mumia.
Such was the case with the infamous 1996 Clinton-signed, Anti-terrorism and Effective Death Penalty Act (AEDPA), which for the first time in 70-plus years held that the findings of “fact” of state courts had to be granted a “presumption of correctness” by federal appeals’ courts. This law, applied early on in Mumia’s Federal District Court hearing, effectively eliminated the historic habeas corpus (right to appeal) foundation of the original U.S. legal system.
Prior to AEDPA some 40 percent of state court convictions in capital cases had been reversed on appeal, usually based on findings of police corruption, planting of evidence, intimidation of witnesses, and incompetent counsel—all of which were grossly operative in Mumia’s 1982 frame-up trial. Under AEDPA, they were effectively excluded from consideration on appeal, and the findings of Judge Albert Sabo (“I’m going to help ‘em fry the n—-r”), aided by the AEDPA, were allowed to stand unchallenged.
When the above-quoted statement (made by Sabo immediately prior to entering the courtroom to preside over Mumia’s case) was introduced in court as evidence of bias, the assigned Judge Pamela Dembe crudely ruled that however reprehensible such a statement might be, “there was no evidence” of Sabo’s bias “during Mumia’s trial!” This in the face of more than 100 rulings against motions presented by Mumia’s legal team and virtually none against the prosecution! This in the face of Mumia’s being physically excluded from the courtroom for a majority of his own trial! And this in the face of key prosecution witnesses being threatened with imprisonment unless they falsely testified against Mumia!
The court’s April 26 decision, reaffirming its previous 2008 decision on the exact same issue, was a product of the U.S. Supreme Court’s intervention at the request of Pennsylvania prosecutors. The High Court, composed of essentially reactionary jurists selected by the representatives of the ruling rich, cited their earlier ruling in the infamous January 2010 case of Smith v. Spisak, where the Court ruled against a self-confessed Nazis triple murderer, who had sought relief by citing the improper jury instructions of an Ohio trial judge.
Using this ruling the Supreme Court remanded Mumia’s case to the Third Circuit with instructions to reconsider its previous ruling in light of its new Spisak decision—the latter, in the tradition of reactionary “states’ rights” rulings, aimed at opening the door to Mumia’s execution. The refusal of the Third Circuit to do so on April 26 sets the stage for yet another appeal by Pennsylvania prosecutors to the U.S. Supreme Court, a decision that Philadelphia District Attorney Seth Williams has pledged to mount.
In truth, however, the resort to the Supreme Court by Pennsylvania and Philadelphia authorities has less to do with a final shot at “legally” reversing a decision made against Philadelphia’s persecutors in three separate rulings than it does with abiding by the order it has repeatedly fought—that is, to grant Mumia a new sentencing hearing. While formally a new jury in such a hearing would be prohibited from reversing the previous “guilty” verdict of the 1982 jury, it would be compelled to hear evidence of innocence in Mumia’s case that had previously been banned or suppressed by Judge Sabo and his cohorts in the frame-up system that places millions of poor people, mostly Black and Brown, in prison with little or no recourse.
Here Mumia’s would-be executioners would be compelled to suffer the humiliating possibility of a jury that just might refuse to render any sentence at all against Mumia after being presented with the massive evidence of his innocence and after the full force of Mumia’s frame-up is finally revealed. Better to have the Supreme Court murder Mumia than to be frontally exposed by a jury as being integral to the criminal frame-up of an innocent man!
Should the Supreme Court refuse to do DA Seth Williams’ dirty work, many observers estimate that Williams and his associates, with prodding from above, would chose the lesser of the two perceived evils before it. That is, they would cease efforts to murder Mumia through the legal system and accept his ordered life imprisonment sentence without parole. The public exposure of the 29-year frame-up of Mumia Abu-Jamal would pose an unacceptable risk to the very credibility of an already fundamentally flawed system.
Meanwhile, the direct and immediate threat to Mumia’s life has been averted, unless the Supreme Court chooses to abrogate its own decisions and affirms Pennsylvania’s twisted interpretation of established case law. This certainly cannot be excluded. However, unresolved legal issues could keep Mumia’s case in the courts for many years. This would involve several avenues of appeal that the Federal District Court mooted after Judge William Yohn had ruled in favor of the argument concerning Judge Sabo’s misleading instructions to the jury on the death penalty.
But while Mumia lives, the struggle for his freedom must continue. Indeed, were it not for the worldwide efforts to reverse his racist conviction, he would have been executed long ago. Mumia’s life rests in our hands—in the hearts, minds, and ongoing efforts of all those who understand that only a massive and united effort can wrest Mumia from the clutches of a social system in which justice and freedom are won in struggle and not gifted from those on high at their pleasure.
We must make the political price of Mumia’s continued incarceration too high for the ruling class and its governmental agents to pay. We must return Mumia to his comrades in the U.S. and the world over who clearly understand that his freedom represents a resounding blow against the tyranny that oppresses us all. Free Mumia Abu-Jamal!
> This article was originally published in the May 2011 print edition of Socialist Action newspaper.