[Ppnews] Mumia Abu-Jamal’s Case Stuck in Legal Limbo

Political Prisoner News ppnews at freedomarchives.org
Mon Feb 8 18:08:30 EST 2010

Mumia Abu-Jamal’s Case Stuck in Legal Limbo

By <http://pubrecord.org/author/dave-lindorff/>Dave Lindorff
The Public Record
Feb 8th, 2010

The recent decision by the US Supreme Court to 
send convicted police killer Mumia Abu-Jamal’s 
case back down to the Third Circuit Court of 
Appeals in Philadelphia, with instructions for a 
three-judge panel there to reconsider its 
decision to uphold the lifting of the prominent 
African-American journalist’s death penalty, is 
only the latest in a long string of examples of 
how courts at all levels have made special 
exceptions to precedent in order to try and kill this particular prisoner.

The high court found on January 19, that Frank 
Spisak, a self-described Nazi and killer of three 
in Ohio, had been properly sentenced, because at 
the time the Ohio Supreme Court affirmed his 
death penalty on appeal, “settled law” was that 
the jury instructions given to his jury had been 
proper. And under the terms of the 1995 Effective 
Death Penalty Act, federal courts, including the 
Supreme Court, have to defer to the judgements of 
state courts unless those courts’ decisions are deemed “unreasonable.”

Where it gets complicated though, is that 
subsequent to the conclusion of Spisak’s state 
appeals, the US Supreme Court, in a 1988 decision 
called Mills v. Maryland, ruled that ambiguously 
worded jury ballot forms and confusing or 
misleading jury instructions on sentencing by 
judges were grounds for reversing a death 
sentence. Mills was never made retroactive (one 
of the more repugnant features of many Supreme 
Court decisions), but Abu-Jamal’s state appeals 
didn’t even properly begin until after his 
1995-96 Post-Conviction Relief Act hearing, and 
so the same finding made by the Supreme Court 
majority in Spisak’s case–that the confusing jury 
instruction standards were “settled law” at the 
time–cannot be made in Abu-Jamal’s case.

But the Supreme Court order sending Abu-Jamal’s 
case back down to the Third Circuit, right or 
wrong, hardly means Abu-Jamal’s battle is over, 
much less lost, despite his already having spent 
an astonishing 28 years in solitary confinement 
on Pennsylvania’s hellish death row.

Even if the Third Circuit were to reverse itself, 
and decide against all logic that because of 
another Supreme Court decision made last month, 
reimposing the death penalty on Frank Spisak, the 
self-proclaimed Nazi killer of three men, 
Abu-Jamal should also die, it would not mean he 
can simply be marched off to a gurney for a lethal injection.

As Hugh Burns, the assistant district attorney in 
Philadelphia who has been leading the effort by 
the DA’s office to have Abu-Jamal executed for 
the last decade and a half, noted in an article 
in the Philadelphia Inquirer, threre are at least 
three more avenues of appeal of Abu-Jamal’s death 
sentence that still need to be considered at the 
district Federal Court level (actually there are four).

That’s because when Federal Judge William Yohn, 
way back in 2001, issued his historic ruling 
revoking Abu-Jamal’s death sentence on the 
grounds that the jury ballot form used to 
determine sentencing, and the instructions of 
trial judge Albert Sabo, had been confusing on 
the question of mitigating circumstances, he 
mooted those other avenues of appeal, saying that 
he didn’t need to rule on them. The sentence was already lifted.

Now that Yohn has been reversed on that lifting 
of the death sentence, though, Abu-Jamal has a 
right to have Judge Yohn go back and look at the 
other three challenges to his sentence. And those 
challenges are very solid and serious. (Actually, 
I’ve always considered it a measure of how 
confident Judge Yohn was in the correctness of 
his decision on the jury instructions claim that 
he didn’t bother to deal with the other four 
appeals claims–something he could have done simultaneously.)

The first unresolved appeal claim goes to the 
heart of a defendant’s right to representation 
and a fair trial. Abu-Jamal’s attorney, Anthony 
Jackson, testified under oath at a 
Post-Conviction Relief Act hearing in 1995 to the 
obvious truth that did absolutely nothing to 
prepare for the sentencing portion of the trial. 
He called no witnesses to testify to Abu-Jamal’s 
character, an astonishing lapse which left the 
prosecutor free and unchallenged in portraying 
Abu-Jamal as a cop-hating terrorist.

Jackson prepared no witnesses, though Abu-Jamal’s 
siblings and mother were on hand and ready to 
testify, as were many others in the community. 
Jackson, astonishingly, didn’t even request a 
delay of a few days after the guilty verdict in 
order to prepare for the sentencing hearing. When 
the judge ordered the session to begin the next 
day, Jackson went along meekly. It didn’t help 
that on the morning of the sentencing hearing, 
Jackson was awoken first at 6 am by fire trucks 
at his home–the result of a “prank call”– and 
that after he got to court, he received a 
frightened and frightening call from his 
15-year-old son saying that someone had called 
his home telling the boy “You are the one we 
want. We’ll be coming over to get you!” (Any bets 
on who was making those calls?) Abu-Jamal in his 
1999 habeas appeal the federal court claims his 
constitutional right to representation was denied 
by Jackson’s dismal performance at the sentencing hearing.

A second line of appeal, also mooted and left 
unresolved by Judge Yohn, was a claim that 
Abu-Jamal’s first, fourth, fifth and fourteenth 
amendment rights were violated when Prosecutor 
Joseph McGill improperly used Abu-Jamal’s 
membership, as a 15-year-old boy, in the Black 
Panther organization, in trying to portray him as 
a vicious cop-hater. McGill came to court with a 
yellowed newspaper clipping from the Philadelphia 
Inquirer in which the young Abu-Jamal, quoting 
Chinese Communist Party leader Mao Tse-tung, had 
told reporters that “power flows from the barrel 
of a gun.” It didn’t matter that the article 
explained that Abu-Jamal had made that statement 
in the context of the murder days earlier of 
Panther leader Fred Hampton by Chicago Police, 
and that the context made it clear he was referring to the power of police.

McGill took the quote out of context and made it 
appear as though Abu-Jamal was advocating war on 
the cops. In any event, the quote had been made 
12 years before, when Abu-Jamal was just a boy. 
The reality was that, far from being at war with 
police, Abu-Jamal as an adult had a sterling 
record or no arrests or convictions. Here is a 
case where the Pennsylvania courts and federal 
courts in the Third Circuit have repeatedly 
overturned death convictions where membership in 
allegedly anti-social organizations was cited by 
prosecutors in an effort to tarnish defendants 
before a jury, but where a special exception has 
been apparently been carved out for Abu-Jamal. 
Judge Yohn has yet to rule on this line of appeal.

Third, there remains to be considered an appeal 
on the grounds that prosecutor McGill improperly 
sought, in his final argument to the jury in the 
sentencing hearing, to diminish the jurors’ sense 
of responsibility for their decision. McGill told 
the jury, “Ladies and gentlemen, you are not 
asked to kill anybody. You are asked to follow 
the law. The same law that I keep on throwing at 
you, saying those words, law and order.

I should point out that it’s the same law that 
has for six months provided safeguards for this 
defendant. The same law, ladies and gentlemen, 
the same law that will provide him appeal after 
appeal after appeal
.The same law, ladies and 
gentlemen, that has made it so because of the 
constant appeals
nobody at all has died in 
Pennsylvania since 1962 for an incident that occurred in 1959.”

Again, the courts at all levels–in Pennsylvania, 
in the Third Circuit, and the US Supreme Court 
itself–have all overturned death penalty 
sentences based upon just such statements having 
been made to juries at trials. Indeed, another 
case prosecuted successfully by McGill himself 
was overturned because he made exactly the same 
statement to a jury, claiming jurors need not 
feel they are personally ordering a man’s death. 
So this appeal too needs to be considered in full by Judge Yohn.

Finally, there is a fourth avenue of appeal which 
was also mooted and left unresolved by Judge 
Yohn. That is the claim that the prosecutor 
knowingly withheld evidence in police files which 
showed that Abu-Jamal had no criminal record and 
no propensity for violence. Specifically, 
Abu-Jamal, years after his trial, obtained his 
FBI file–largely composed of materials obtained 
by the FBI from Philadelphia Police and the 
Philadelphia Police Department’s so-called “Red Squad.”

That file, 600 pages long, shows that 
surveillance of Abu-Jamal ended in 1973. A 1974 
memo at the end of the file states, “In March 
1973, per bureau instructions, captioned subject 
was deleted from ADEX [the list of people deemed 
subversive and slated as part of COINTELPRO to be 
rounded up and detained in the event of a 
national emergency] and no additional 
investigation conducted concerning his activities.

Sources, however, have continued to report 
periodically on COOK [Abu-Jamal’s family name] 
and, although he has not displayed a propensity 
for violence, has continued to associate himself 
with individuals and organizations engaged in 
Extremist activities.” Clearly this file, stating 
that Abu-Jamal did not appear to be a violent 
person, had been available to the prosecution, 
and should have been offered to the defense. This 
appeal of Abu-Jamal’s conviction based upon a 
claim of prosecutorial misconduct must also be considered by Judge Yohn.

Once the Third Circuit has reconsidered its 
decision on the jury instruction issue–and the 
outcome there is by no means certain, with 
Abu-Jamal’s attorney Robert Bryan planning a 
spirited argument that Abu-Jamal’s case is 
substantively different from the Spisak case–and 
if it were to rule against Abu-Jamal, there would 
first of all be a new appeal of that decision 
back to the US Supreme Court. Only if the high 
court were to uphold such a decision would these 
four other issues finally go back before Judge Yohn.

It appears that even if the courts continue to 
rule against this now world-renowned journalist 
who has spent more than half his life sitting 
confined in a small cell on death row, his 
controversial case, dogged as it is by charges of 
judicial misconduct, racial bias, prosecutorial 
misconduct, perjured prosecution witness 
testimony and political interference, will 
continue to drag on unresolved for years to come.

Dave Lindorff is a Philadelphia-area journalist 
and has followed the Abu-Jamal case for more than 
12 years. His book on the case, Killing Time: An 
Investigation into the Death Row Case of Mumia 
Abu-Jamal, was published in 2003 by Common 
Courage Press. Lindorff’s work is available at www.thiscantbehappening.net.

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