On May 17, the 3rd Circuit Court of Appeals will hear oral arguments in the case of internationally renowned black death-row journalist Mumia Abu-Jamal. The court will consider four different issues that it has already certified for appeal. It will then decide to either grant a new trial, affirm the life sentence, or re-instate the death sentence.
Immediately after this date was announced last week, supporters of Abu-Jamal around the world began mobilizing to support Abu-Jamal at the hearings. Explaining the urgency, Pam Africa (coordinator of Abu-Jamal’s support network) says that “Mumia can still be executed. Further, since the Supreme Court is unlikely to hear Mumia's case, this is realistically his last chance to get a new trial. As the history of his case shows, we need public pressure to ensure the court's fairness.”
“We’re asking people to come to Philadelphia and show that the whole world is watching these oral arguments,” said Africa. “I believe Mumia is innocent and am personally calling for his immediate release,” Africa said. “However, I'll work with anyone supporting a fair trial. By demanding a new trial, we can work with those who know the trial was rotten but are unsure of Mumia's innocence.”
Abu-Jamal’s attorney, Robert R. Bryan doubts that his client will appear in court because of a rule that the defendant is not brought in for oral arguments. Africa is upset about this rule because she feels that Abu-Jamal’s presence will help to ensure fairness. She asks, “These people are arguing about his life, and he’s not allowed to be there to make sure everything is done right?”
Africa is also concerned about the limited time given for the presentation of oral arguments. While the 3rd Circuit Court has granted 45 minutes total, Abu-Jamal’s attorney is arguing for at least an hour. Africa argues that “in order to argue this case, you need much more time than that.”
A New Trial?
In 1982, Abu-Jamal was convicted of killing white Philadelphia police officer Daniel Faulkner in a trial that Amnesty International has declared a "violation of minimum international standards that govern fair trial procedures and the use of the death penalty."
Calling for a new trial, supporters around the world feel that the original one was tainted by racism, prosecutorial and judicial misconduct, coerced witnesses, suppressed evidence, and a denial of Mumia's constitutional right to represent himself.
His case has attracted activists around the world organizing against racism, poverty, corporate media censorship, mass incarceration, political repression, and the death penalty.
Activist Noam Chomsky argues, “Mumia's case is symbolic of something much broader... The US prison system is simply class and race war... Mumia and other prisoners are the kind of people that get assassinated by what's called 'social cleansing' in US client states like Colombia.”
Still on Death Row
In December 2001, Federal District Court Judge William Yohn affirmed Abu-Jamal's guilt but overturned the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn ruled that sentencing forms used by jurors and Judge Sabo's instructions to the jury were confusing. Subsequently, jurors mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to be considered as weighing against a death sentence.
Mumia's case is now in the federal Third Circuit Court of Appeals. DA Lynne Abraham is appealing the death penalty ruling while Mumia is appealing the guilty verdict.
If the penalty ruling is overturned, a new execution date will be set for Mumia. If his ruling is upheld, the DA can still impanel a new jury to rehear the penalty phase, which could then sentence Mumia to death -- regardless of the 3rd Circuit ruling.
Because the DA appealed Yohn's death penalty decision, Mumia has never left death row, and is still unable to have such “privileges” as full-contact visits with his family.
The Four Issues Being Considered
In December, 2005, the 3rd Circuit announced the beginning of deliberations and shocked many by agreeing to consider two claims not “certified for appeal” by Yohn in 2001.
Mumia's attorney Robert R. Bryan declared it to be “the most important decision affecting my client since his 1981 arrest, for it was the first time there was a ruling that could lead to a new trial and his freedom.” The courts are now considering the following four issues:
#1. Whether the penalty phase of Mumia's trial violated the legal precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling. This issue was Yohn's grounds for overturning the death sentence and is now being appealed by the DA.
#2. “Certified for appeal” by Yohn in 2001, the Batson claim, addresses the prosecution's use of peremptory challenges to exclude Blacks from Mumia's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a defendant deserves a new trial if it can be proved that jurors were excluded on the grounds of race.
At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia is 44% black, Abu-Jamal's jury was composed of ten whites and only two blacks. From 1977-1986 when current Pennsylvania governor Ed Rendell was Philadelphia's District Attorney, the evidence of racism is striking: from 1977-86, the Philadelphia DA struck 58% of black jurors, but only 22% of white jurors.
#3. The legality of McGill's statement to the jury minimizing the seriousness of a verdict of guilt: “if you find the Defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.”
In 1986 the Pennsylvania Supreme Court ruled against McGill in another case (Commonwealth v. Baker) on the same grounds. When Abu-Jamal addressed this same issue in his 1989 appeal with the State Supreme Court, the court reversed its decision on the legality of such a statement -- ruling against the claim for a mistrial.
Incredibly, just one year later, in the very next case involving this issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored the precedent. However, this would not affect the ruling against Mumia, because the court ruled that this precedent would only apply in “future trials.” This suggests that the rulings were designed to specifically exclude Mumia's case from its precedent.
#4. The fairness of Mumia's 1995-97 PCRA hearings when the retired, 74-year-old Judge Sabo was called back specifically for the hearing. Besides the obvious unfairness of recalling the exact same judge to rule on his fairness in the original 1982 trial, his actual PCRA bias has been extensively documented.
During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that the “behavior of the judge in the case was disturbing the first time around -- and in hearings last week he did not give the impression to those in the courtroom of fair mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case.”
Concluding the PCRA hearing, Sabo rejected all evidence and every witness presented by the defense as not being credible. Therefore, Sabo upheld all of the facts and procedures of the original trial as being correct.
“I'm Going To Help Them Fry The Nigger”
In 2001 another witness -- Terri Mauer-Carter -- challenged Sabo's integrity, but the State Supreme Court ruled against the defense's right to include her affidavit in their current federal appeal. Mauer-Carter was working as a stenographer in the Philadelphia Court system on the eve of Mumia's 1982 trail when she states that she overheard Judge Sabo say in reference to Mumia's case that he was going to help the prosecution “fry the nigger.”
Journalist Dave Lindorff recently interviewed Mauer-Carter's former boss, Richard Klein, who was with Mauer-Carter when she states she overheard Sabo. A Philadelphia Common Pleas Court judge at the time, who now sits on PA's Superior Court, Klein told Lindorff: "I won't say it did happen, and I won't say it didn't. That was a long time ago." Lindorff considers Klein's refusal to firmly reject Mauer-Carter's claim to be an affirmation of her statement.
The State Supreme Court ruling was an affirmation of lower-level Judge Patricia Dembe's argument that even if Maurer-Carter is correct about Sabo's stated intent to use his position as Judge to throw the trial and help the prosecution "fry the nigger," it doesn't matter. According to Dembe, since it "was a jury trial, as long as the presiding Judge's rulings were legally correct, claims as to what might have motivated or animated those rulings are not relevant."
Organizing for May 17
Before the May 17 date had been set, Abu-Jamal supporters had already been organizing events for April 24 -- Mumia’s birthday. The event in Philadelphia will show the film Framing an Execution (narrated by Danny Glover), which analyzes the biased presentation of Abu-Jamal’s case by Sam Donaldson on ABC’s 20/20 in 1999. Afterwards, the forum will discuss new evidence of innocence.
On the same day in France, Abu-Jamal’s international supporters will be joined by a US delegation defending last April’s naming of a street for Abu-Jamal in the Paris suburb of St. Denis.
“In 2001, when Judge Yohn affirmed Mumia’s conviction, he said there was no evidence to show that Mumia is innocent. That is absolutely not true, but Yohn could get away with saying this because the mainstream media did not hold him accountable.” Pam Africa argues that independent journalism and aggressive media-activism are urgently needed to challenge the mainstream media to report accurately about the upcoming oral arguments. “Deceitful mainstream media coverage since November has not presented the extensive evidence of Mumia’s innocence, and this dishonest coverage makes Mumia seem like a cold blooded killer. Only independent media has been putting the truth out about Mumia.”
Among the many stories about Abu-Jamal in the independent press, Africa highly recommends reading about the important new evidence presented in German author Michael Schiffmann’s new book on the case -- especially the new discovery of crime-scene photos that expose police manipulation of evidence at the scene.
If supporters are unable to travel to Philadelphia on May 17, Africa encourages people do something in their hometown to publicize the oral arguments and hold the mainstream media accountable in their coverage of the case. “Mumia's case represents all that is wrong with this system. We must take action now before its too late.”
For more information, check out mumia.org (Philadelphia), freemumia.com (New York City), freemumia.org (San Francisco), or emajonline.com (Educators for Mumia). For the latest on Abu-Jamal from the independent media, check out Bennett’s new “Voice of the Voiceless” series on Abu-Jamal being published in the months leading up to the oral arguments at: http://hbjournalist1.googlepages.com/ms
Hans Bennett (insubordination.blogspot.com) is a Philadelphia-based photojournalist who has been documenting the movement to free Mumia and all political prisoners for more than five years.
Other Articles by Hans Bennett
Corporate Power in Colombia: An Interview with Aviva Chomsky