[Ppnews] Supreme Court opens door to Mumia’s execution

[Political Prisoner News]

<http://www.phillyimc.org/en/supreme-court-opens-door-mumia%E2%80%99s-execution>http://www.phillyimc.org/en/supreme-court-opens-door-mumia%E2%80%99s-execution
http://www.indybay.org/newsitems/2010/01/26/18636298.php

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/>http://freemumia.org



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