Confronted with a growing movement to abolish the death penalty, exposed repeatedly by revolutionary journalist Mumia Abu-Jamal for its racism, hypocrisy and brutality, the U.S. legal system is coalescing to assert its threatened right to kill people it deems dangerous.

The courts have been doing this drop by drop: a denial of oral arguments here, a rejection of amicus briefs there. While each decision has been seemingly insignificant, taken together they form a gathering ice storm for Mumia.

However, two recent court decisions concerning Mumia’s case have turned the frozen drops into a squall. The first is the decision on 8 October by the Pennsylvania Supreme Court to deny a hearing of the new evidence of Mumia’s innocence and the racist bias of the trial judge, Albert Sabo. The second is a decision by the U.S. Supreme Court to review the application of the precedent upon which Federal District Judge William Yohn, Jr., overturned Mumia’s death sentence in December 2001.

Two major cases from the 20th century form a precedent for what’s going on now in the courts with Mumia: (1) Sacco and Vanzetti, who were railroaded to the electric chair over a seven-year period by the Commonwealth of Massachusetts because: (a) they were anarchists and Italians; and (b) to assert its authority despite the gigantic working-class movement which sprang up in their defense; (2) Ethel and Julius Rosenberg, who were legally murdered by the U.S. government because of the radical movement they represented, even though that same government knew at the time that they were not the ‘atom spies’ it alleged.

More recent was the case of Shaka Sankofa, who in 2000 was the target of a death warrant, signed by the governor of Texas then, George W. Bush. Shaka Sankofa was a self-educated, politically aware Black prisoner. From jail, he wrote, spoke and gained a following. But his rights to procedural due process were violated from the time of his arrest. As a result, evidence of his innocence never was heard at his trial. Afterward, the appellate courts repeatedly refused to consider Shaka’s petitions on these matters, citing timeliness and other technicalities.

A worldwide movement arose to save Shaka, but it was too little and too late against the determination of the Texas authorities to silence him forever.

The decision by the Pennsylvania court was not unexpected. This is the same court which reversed its own precedent in the 1980’s in order to deny Mumia’s first, direct appeal, and then re-reversed itself a year later in another case. It’s also the same court, which used two different standards to weigh evidence in denying Mumia’s second appeal in 1998.

Participating in the decision was Justice Ronald Castille, who as Philadelphia County D.A. in the 1980’s had signed off on all the briefs filed against Mumia’s first appeal. Castille’s signature also is on videotape produced by his own office instructing newly hired prosecutors how to remove Black people from juries without giving the appearance of racism.

The Pennsylvania court’s decision had two parts. The first upheld a decision by Common Pleas Judge Pamela Dembe to deny a hearing of the substantial evidence of Mumia’s innocence: a confession to the crime by a man named Arnold Beverly; declarations by Mumia himself and his brother, who was also at the scene; and affidavits by investigators and informants which support Mumia’s story and impeach the testimony of prosecution witnesses.

Judge Dembe and the Supreme Court did not judge the evidence on its merits. Rather they dismissed it as ‘untimely’; that is, it wasn’t filed within the time limits prescribed by the Pennsylvania Legislature. The Legislature, however, did permit exceptions to its requirements, but Dembe and the justices refused to apply them to the evidence of innocence in this life-or-death case.

Therefore, in the eyes of the Pennsylvania courts, an innocent person can be legally murdered if he or she filed evidence of innocence ‘too late’. Further, all the new evidence of Mumia’s innocence becomes non-existent in the eyes of the courts. This is not only true for the Pennsylvania courts, but the federal courts, too. The terms of the Anti-Terrorism and Effective Death Penalty Act of 1996(AEDPA) bar, with few exceptions, the federal courts from examining evidence, which has already been looked at--or ignored--by state courts.

The second part of the decision upheld Judge Dembe’s refusal to consider the affidavit of Terri Maurer-Carter, a veteran court reporter who declared that she overheard Judge Sabo state during Mumia’s trial in 1982 that he was going to help the prosecution ‘fry the nigger’.

Judge Dembe had conceded that the Maurer-Carter declaration may be timely, but said it was the job of the Supreme Court to look at it, not hers. The Supreme Court then turned around and ignored it on the grounds that the issue of racism had already been argued in Mumia’s 1998 appeal. Not really. What had been litigated then was Judge Sabo’s general prejudice against Mumia arising from the judge’s previous job as under sheriff of Philadelphia County and his long-time membership in the Fraternal Order of Police. Sabo’s race bias was treated as a side issue, illustrated in the overwhelmingly racist pattern of his death sentences.

The Maurer-Carter affidavit, however, puts Sabo’s racism in the center of a large, white-framed picture. There, for all to see is the trial judge not only promising to aid the prosecution, but also vowing to help execute Mumia because he is Black.

Moreover, the picture holds many more people. Earlier this year a commission appointed by the Pennsylvania Supreme Court itself recommended a moratorium on death penalties in part because they were applied in a racist manner.

But the court blew all this off. It wouldn’t consider content. It ignored its own commission. It acted in fact as if Chief Justice Taney, who wrote in his Dred Scott opinion that a Black person ‘has no rights which a white man is bound to respect’, had arisen from his grave and taken a seat of honor on its bench in Harrisburg.

Separately, in an illustration of how the system is moving to murder Mumia, Federal Judge Yohn had earlier refused to hear Maurer-Carter because he said that Sabo’s race bias had not been already litigated in the state courts.

The second decision was by the U.S. Supreme Court reviewing the application of its Mills v. Maryland decision in another Pennsylvania case, Banks v. Horn. The significance of this for Mumia is that Judge Yohn cited both cases as precedents in throwing out Mumia’s death sentence.

The Mills decision of 1988 overturned a Maryland requirement that jurors had to be unanimous in finding a mitigating circumstance before they could vote against a death penalty. For many years Pennsylvania used vaguely worded jury instructions, which could have led jurors to believe the same thing. As a result of Mills, at least six Pennsylvania prisoners, including Mumia, have had their death sentences overturned.

At issue in the Banks review is whether Mills can be applied retroactively, and to what extent. According to legal journalist Rick Halperin, the Supreme Court could decide that Mills cannot be applied retroactively. In that event all prisoners whose direct appeals to the Pennsylvania state courts were completed before Mills was decided, including Mr. Banks, would be out of luck. Or the court could also apply Mills retroactively, but find that the Pennsylvania courts acted ‘reasonably’ in its application. In that case all death row prisoners who have made Mills claims, including Mumia, could have their death sentences put back.

Finally, the Supreme Court could uphold the overturning of Mr. Banks’ death sentence, but this seems unlikely since the justices voted to examine the case in the first place. The Supreme Court, in fact, accepts for review only about 2% of the cases, which come before it. More threatening for Mumia is the fact the two Luzerne County prosecutors who argued against Banks were joined at the court by two attorneys from the Philadelphia D.A.’s office.

Shining outside Mumia’s case is a ray of hope. Last spring the U.S. Supreme Court decided an appeal of Thomas Joe Miller-El. Miller-El, also from Texas like Shaka, had asked the Supreme Court to reverse the Federal Fifth Circuit Court of Appeals’ rejection of his request for a certificate of appeal ability. Such a certificate is permission under AEDPA for a prisoner to appeal further a claim, which had been rejected by a lower Federal District Court. He had previously petitioned the Fifth Circuit for such a certificate to pursue his claim that his rights under the Batson v. Kentucky decision were violated in the racist jury selection process at his original trial.

The Supreme Court ruled for Miller-El, 8-1. Moreover, in making it’s ruling the court closely examined the jury selection at Miller-El’s trial. While Mumia already has such a certificate for his Batson claim, the fact that the Supreme Court looked at the jury selection process in the way that it did indicates some unease on this question by the authorities.

Perhaps the growing movement against the death penalty is pushing them this way. By contrast, in 1987 Justice Powell expressed the same unease during the arguments in McCleskey v. Kemp when he said: ‘This evidence of racism is overwhelming, it’s not refuted, but what are we supposed to do, declare the whole system unconstitutional?’ But Powell ruled against the death-row prisoner anyway, and McCleskey was later executed by the state of Georgia.

The Miller-El ray of hope, however, will be dissipated without a movement, which threatens the stability of a system, which wants to kill Mumia to show the Black, and working-class people who listen to him, that it’s still the boss. Mumia would have been murdered by the state many years ago if it had not been for a globe-spanning chorus of voices and militant actions to protest the injustice done to him. In particular Judge Yohn never would have thrown out Mumia’s death sentence if it had not been for the support of hundreds of thousands of people. Thomas Joe Miller-El himself, much less known than Mumia, nevertheless has organized support, which has pushed his case through the courts.

Peace and Power.

Join the campaign to free Mumia. Abolish the death penalty.

By the NYC Free Mumia Coalition/International Concerned Family and Friends of Mumia Abu-Jamal

icffmaj@aol.com
215-476-8812