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Check out this new article by Jeff Mackler. He has asked me to help repost this, so permission is granted to reprint.

On Tuesday, January 19, the US Supreme Court granted the Philadelphia DA's petition for a writ of certiorari. The Supreme Court has vacated the lower federal courts' 2001/2008 rulings which had overturned Mumia's death penalty and granted a new sentencing-phase jury trial if the death penalty was to be reinstated.

Supreme Court opens door to Mumia’s execution

BY JEFF MACKLER

In a dangerous decision and a break with its own precedent, the U.S. Supreme Court, on Jan. 19, opened the door wide to Pennsylvania prosecutors’ efforts to execute the 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 its 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," Albert Sabo, Philadelphia prosecutor Joseph McGill, in explicit violation of Batson, used 10 of his 15 peremptory challenges 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. 19, 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 was a neo-Nazi who wore a Hitler mustache to his trial, denounced Jews and Blacks, and confessed in court to three hate-crime murders in Ohio. Spisak saw his jury-imposed death sentence reversed in the federal courts when his attorneys, like Mumia’s, successfully invoked a critical 1988 Supreme Court decision in the famous Mills v. Maryland case.

The Mills decision required, with regard to sentencing procedures, that both the judge’s instructions and the jury forms make clear that any juror who believes that one or more mitigating circumstance exists (sufficient to impose a sentence of life imprisonment as opposed to the death penalty) should have the right to have that issue(s) considered by the jury as a whole. Prior to Mills, Maryland jurors were effectively led to believe that they had to be unanimous on any possible mitigating circumstance for it to be considered in the deliberation process.

Mills explicitly rejected the idea of unanimity; it rejected the notion that a single juror could block from consideration the mitigating circumstances hypothetically found by another juror or even by 11 of the 12 jurors.

Before Mills, the "unanimity" requirement in the way it was presented to juries essentially eliminated the vast majority of mitigating circumstances, and therefore juries had little or no alternative but to impose the death penalty. Under Mills, once all mitigating circumstances were set before the jury, it was then their responsibility to determine whether they were sufficient to impose a sentence of life as opposed to death.

In both Spisak’s and Mumia’s cases the trial court judge violated the Mills principle and in essence instructed the juries that unanimity on each mitigating circumstance was required for consideration of the jury as a whole. 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 Appeals, invoked Mills to overrule the jury-imposed death sentence verdicts. They ordered a new sentencing hearing and trial with the proper instructions to the jury and where new evidence of innocence could be presented. The jury remained bound, however, by the previous jury’s guilty finding.

Even so, the long-suppressed mountain of evidence proving Mumia’s innocence 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.

"States’ rights" logic of Spisak decision

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 were orally mis-instructed and/or received faulty or unclear verdict forms that implied it needed to be unanimous with regard to mitigating circumstances that would be considered to weigh in against the death penalty, the death penalty would be set aside and a new sentencing hearing ordered.

That 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 is 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 Oct. 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. It was not by accident that Mumia’s Pennsylvania prosecutors filed a friend of the court brief (amicus curiae) in support of the Ohio Spisak appeal.

Undoubtedly, the U.S. Supreme Court found some delight in rendering their Spisak decision. They changed the law in order to allow Ohio to execute a likely deranged Nazis and instructed Pennsylvania prosecutors to use this law to try to execute a revolutionary—that is, Mumia Abu-Jamal.

In every sense Mumia’s life is on the line as never before. Pennsylvania 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 Court of Appeals and then to the U.S. Supreme Court. The process could take months or years, but the deliberations will be based on 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 too high to pay. Mumia is alive and fighting today because of that movement. Those dedicated to his freedom and who stand opposed to the death penalty more generally are urged get involved. Free Mumia!

--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.

--Jeff Mackler is the director of the Northern California-based Mobilization to Free Mumia Abu-Jamal.
This article was originally published in Socialist Action newspaper, February, 2010.
http://freemumia.org

Originally posted to HansBennett on Tue Jan 26, 2010 at 03:54 PM PST.

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Comment Preferences

    •  Thanks for this (4+ / 0-)
      Recommended by:
      RonV, opinionated, second gen, Deoliver47

      My brother Leonard Peltier has also suffered recent setbacks in his denial of parole after he has served twice the time other non-Indian prisoners do for the same crime. So I know full well that those held for political reasons in America are never afforded true justice.

      Our brother Mumia must be freed and the criminals whose lies hold him should be jailed in his stead.

      FREE MUMIA! We'll never let him die to justify the lies of the vengeful. Never.

  •  It's been a while (6+ / 0-)

    since the last "Free Mumia" war...

    When I see a bad 5-4 SCOTUS decision, I think: "Thanks, Ralph"

    by Rustbelt Dem on Tue Jan 26, 2010 at 03:55:38 PM PST

    •  are you concerned about... (7+ / 0-)

      ....death penalty being carried out against a person who Amnesty Intl says was convicted with a blatantly unfair trial?

      •  I'm concerned (6+ / 0-)

        that Maureen Faulkner has been waiting 28 years for justice. She was married to a cop that was shot with 5 bullets from the gun that belonged to the person convicted of the crime (who was wearing a shoulder holster) and was in his possession at the time of arrest.

        Also, Philadelphia, even under Rizzo, was never a banana republic.

        When I see a bad 5-4 SCOTUS decision, I think: "Thanks, Ralph"

        by Rustbelt Dem on Tue Jan 26, 2010 at 04:08:00 PM PST

        [ Parent ]

        •  the bullet was never tied directly to Mumia's gun (5+ / 0-)

          The police ballistician testified that the fatal bullet could have come from "multiples of millions" of 38 caliber guns, including from brands other than Mumia's charter arms revolver...

          not that you probably care, though.  Your decision seems already made up, and is based on incorrect, or at best incomplete information.

          Have you ever read the Amnesty Intl Report?

          http://www.amnesty.org/...

          •  So, (0+ / 0-)

            I take it that you don't put much stock in the the testimony of the hospital security guard (not the Philadelphia PD) claiming he made a confession and hoped that Faulkner died, huh?

            When I see a bad 5-4 SCOTUS decision, I think: "Thanks, Ralph"

            by Rustbelt Dem on Tue Jan 26, 2010 at 04:32:20 PM PST

            [ Parent ]

            •  absolutely not. It took over 2 months... (8+ / 0-)

              ...for Priscilla Durham to report that to police.
              To quote Amnesty International: "The likelihood of two police officers and a security guard forgetting or neglecting to report the confession of a suspect in the killing of another police officer for more than two months strains credulity."

              Let me provide some background for you from an article I wrote:

              http://www.sfbayview.com/...

              On the final day of testimony during the original trial, Abu-Jamal’s lawyer discovered Police Officer Gary Wakshul’s official statement in the police report from the morning of Dec. 9, 1981. After riding with Abu-Jamal to the hospital and guarding him until treatment for his gunshot wound, Wakshul reported: "The negro male made no comment." This statement contradicted the trial testimony of prosecution witnesses Gary Bell, a police officer, and Priscilla Durham, a hospital security guard, who testified that they had heard Abu-Jamal confess to the shooting while Abu-Jamal was awaiting treatment at the hospital.

              When the defense immediately sought to call Wakshul as a witness, the DA reported that he was on vacation. Judge Sabo denied the defense request to locate him for testimony, on grounds that it was too late in the trial to even take a short recess so that the defense could attempt to locate Wakshul. Consequently, the jury never heard from Wakshul, nor about his contradictory written report. When an outraged Abu-Jamal protested, Judge Sabo replied: "You and your attorney goofed."

              Wakshul’s report from Dec. 9, 1981, is just one of the many reasons cited by Amnesty International for their conclusion that Bell’s and Durham’s trial testimonies were not credible. There are many other problems that merit a closer look if we are to determine how important Wakshul’s 1982 trial testimony could have been.

              The alleged "hospital confession," in which Abu-Jamal reportedly shouted, "I shot the motherf***er and I hope he dies," was first officially reported to police over two months after the shooting, by hospital guards Priscilla Durham and James LeGrand on Feb. 9, 1982, by Police Officer Gary Wakshul on Feb. 11, by Officer Gary Bell on Feb. 25, and by Officer Thomas M. Bray on March 1. Of these five, only Bell and Durham were called as prosecution witnesses.

              When Durham testified at the trial, she added something new to her story which she had not reported to the police on Feb. 9. She now claimed that she had reported the confession to her supervisor the next day, on Dec. 10, making a handwritten report. Neither her supervisor nor the alleged handwritten statement was ever presented in court. Instead, the DA sent an officer to the hospital, returning with a suspicious typed version of the alleged Dec. 10 report. Sabo accepted the unsigned and unauthenticated paper despite both Durham’s disavowal – because it was typed and not handwritten – and the defense’s protest that its authorship and authenticity were unproven.

              Gary Bell, Faulkner’s partner and self-described "best friend," testified that his two month memory lapse had resulted from his having been so upset over Faulkner’s death that he had forgotten to report it to police.

              Later, at the 1995 PCRA hearings, Wakshul testified that both his contradictory report made on Dec. 9, 1981 – "The negro male made no comment" – and the two month delay were simply bad mistakes. He repeated his earlier statement given to police on Feb. 11, 1982, that he "didn’t realize it [Abu-Jamal's alleged confession] had any importance until that day." Contradicting the DA’s assertion of Wakshul’s unavailability in 1982, Wakshul also testified in 1995 that he had in fact been home for his 1982 vacation and available for trial testimony, in accordance with explicit instructions to stay in town for the trial so that he could testify if called.

              Just days before his PCRA testimony, undercover police officers savagely beat Wakshul in front of a sitting judge in the Common Pleas Courtroom where Wakshul worked as a court crier. The two attackers, Kenneth Fleming and Jean Langen, were later suspended without pay as punishment. With the motive still unexplained, Dave Lindorff and J. Patrick O’Connor speculate that the beating may have been used to intimidate Wakshul into maintaining his "confession" story at the PCRA hearings.

              •  He could have brought this up (0+ / 0-)

                when he testified.

                Oh wait, he didn't testify?  Didn't he cause so many disruptions that he was removed from the courthouse more than 10 times?

                I mean, that kind of sounds like a man who knows he's guilty as hell trying to cause a mistrial.

                When I see a bad 5-4 SCOTUS decision, I think: "Thanks, Ralph"

                by Rustbelt Dem on Wed Jan 27, 2010 at 05:12:04 AM PST

                [ Parent ]

        •  Someone elses death... (13+ / 0-)

          will make her whole?  

          This makes about as much sense as Mike Huckabee on mescaline. - Prodigal 2-6-2008

          by Tonedevil on Tue Jan 26, 2010 at 04:27:27 PM PST

          [ Parent ]

  •  No way Obama can step in. (1+ / 0-)
    Recommended by:
    HylasBrook

    Maybe Rendell on his way out the door.  But then he'd have to give up any desires for the Senate or Obama Administration job that would require Senate confirmation.

    Politics is like playing Asteroids - You go far enough to the left and you end up on the right. Or vice-versa.

    by Jonze on Tue Jan 26, 2010 at 03:57:44 PM PST

  •  eh... (2+ / 0-)

    Urban democrats, not your country blue dogs...control Philadelphia with an iron grip...

    Seth Williams was got through the primary by probably the most liberal political machine in the country

    The "Free Mumia" should be considered a joke since they couldn't get Seth, running for an open seat in a democratic primary, to do anything other than promise the death penalty for Mumia

  •  Gawd, Americans Get Such a Woody Over Murder (4+ / 0-)
    Recommended by:
    Mnemosyne, lams712, Deoliver47, HylasBrook

  •  Black's Law Dictionary defines Kangaroo Court as (5+ / 0-)

    a sham legal proceeding in which a person's rights are totally disregarded and in which the outcome is a foregone conclusion because of the bias of the court.

  •  Thanks for this, but I think this is the..... (4+ / 0-)
    Recommended by:
    RonV, Tonedevil, Deoliver47, HylasBrook

    ...beginning of the end for Mumia. Even so-called progressives here call for his head and NO elected Democrat has the political courage to take a stand on ANYTHING, let alone the death penalty. So despite the fact that the FACTS are on our side, the Supreme Court has shown itself to make some really bad decisions. I guess we can take solace in the fact that we had him with us for 28 years.  

    Keep up the fight.

    "...if my thought-dreams could be seen, they'd probably put my head in a guillotine...." {-8.13;-5.59}

    by lams712 on Tue Jan 26, 2010 at 04:41:33 PM PST

  •  well, at least there's no MOVE crap... (0+ / 0-)

    ...thanks, Hans, for "borrowing" this diary from someone who isn't obsessed with those crazies.

    grok the "edku" -- edscan's "revelation", 21 January 2009

    by N in Seattle on Tue Jan 26, 2010 at 04:50:36 PM PST

  •  asdf (3+ / 0-)

    ... efforts to execute the innocent political prisoner, murder frame-up victim, award-winning journalist, and world-renowned "Voice of the Voiceless," Mumia Abu-Jamal.

    ...

    Dear God! Make the laughter stop!!!!!

    While I do not support the death penalty any longer, let's not walk over a cliff here.

    I have read all the evidence and the books by both sides - and am convinced beyond a reasonable doubt that he is guilty. Even after a trial in Philadelphia's court system.

    I don't have "issues". I have a full subscription!

    by GayIthacan on Tue Jan 26, 2010 at 04:55:47 PM PST

  •  He's not an innocent man (3+ / 0-)

    and despite my objection to any use of the death penalty, continuing this argument does not advance his cause or your own

  •  I think Mumia can safely take out a mortgage (0+ / 0-)

    The way things are going with the death penalty in PA, he's not going anywhere.  We have at least two mass murderers in PA who, politically, would have to be put to death before someone who killed only one person, in at least nominally contested circumstances.  And they're not going anywhere either, as Rendell observed with justifiable frustration last week.

    Enrich your life with adverbs!

    by Rich in PA on Tue Jan 26, 2010 at 05:36:14 PM PST

  •  Thanks you Hans, as always (1+ / 0-)
    Recommended by:
    soothsayer99

    and sorry that uncouth people here have targeted your diaries, that some of us are interested in.

    "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition" Bernice Johnson Reagon

    by Denise Oliver Velez on Wed Jan 27, 2010 at 10:55:10 AM PST

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