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Supreme Court opens door to Mumia's execution

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.