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Articles Major Court Victory for Mumia Abu-Jamal By Jeff Mackler The Dec. 6 ruling of the U.S. Court of Appeals of the Third Circuit reversing two critical Federal District Court decisions in the case of innocent death row political prisoner and award-winning journalist Mumia Abu-Jamal opens the door wider than ever for a new trial and Mumia's eventual freedom. The court's ruling was a major blow to the Pennsylvania legal establishment, which has sought to publicly minimize the political damage it has suffered. The decision also registers a blow to reactionary provisions of the 1996 Anti-terrorism and Effective Penalty Act that was designed to eliminate constitutional protections in the name of efficiency in implementing state court death penalty decisions. The Third Circuit granted "certificates of appealabilty" to Jamal to challenge defense alleged race and judicial bias in the 1995 Post Conviction Relief Action proceedings that were overseen by Mumia's original 1982 trial court "hanging" judge, Albert Sabo. Sabo went to extreme lengths to keep evidence of innocence out of the court record. The court also allowed Mumia to challenge the 1982 trial summation remarks of the state's lead prosecutor, Joseph McGill, who told the jury, "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." Mumia's lead attorney, Robert R. Bryan of San Francisco, told this writer that McGill's summation had the effect of qualitatively lowering the historic burden of proof regarding reasonable doubt and presumption of innocence. Virtually the same remarks by Pennsylvania prosecutors in other cases have resulted in new trials. The Third Circuit's decision is especially remarkable since, under the provisions of the reactionary 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA), the court had no obligation to even consider defense challenges to the Federal District Court's denial of certificates of appealability. When Federal District Court Judge William H. Yohn Jr. ruled against Mumia four years ago with regard to some 27 of the 29 points that the defense raised in its original habeas brief he cited in almost every instance the strict provisions of the AEDPA. This Clinton-signed law qualitatively raised the standard required to secure a "certificate of appealability," the prerequisite for having one's appeal issues heard by the next level of the federal judiciary - in this case, the U.S. Court of Appeals of the Third Circuit. With the AEDPA the presumption of innocence standard was replaced by a requirement that federal judges were henceforth required to grant a "presumption of correctness" to the findings of state courts. This reversal of the burden of proof has now been itself reversed, or at least in part. The AEDPA was passed by Congress in the aftermath of the Oklahoma City bombing, when Democrats sought to grant law enforcement agencies greater leeway to circumvent constitutional or due process protection in the name of fighting terrorism. This goal dovetailed with the Republican's effort to make state court convictions in capital cases "effective." The result was the AEDPA, two laws combined, both reactionary. The "effective death penalty" portion of the Act was incorporated to essentially eliminate the right to appeal to higher courts. This was because prior to the AEDPA some 40 percent of state court convictions in capital cases were reversed on appeal to the federal courts, largely, according to studies on the subject, because of police misconduct, racism, intimidation of witnesses, falsification of evidence and ineffective assistance of counsel. In essence, the AEDPA junked the presumptions of reasonable doubt and innocence and essentially required defendants to virtually prove their innocence rather than simply presenting evidence of reasonable doubt in order to qualify for the right to appeal. Judge Yohn gave Mumia a certificate of appealability with regard to just one of the 29 points argued in his habeas brief -- the Batson issue, or the application of the U.S. Supreme Court's decision in the case of Batson v. Kentucky that banned preemptive exclusions of Blacks from juries without stating a specific non-race-based reason for each exclusion. Judge Yohn did not agree with and in fact rejected the defense's arguments with regard to Mumia's Batson claim. But he did grant Mumia the right to appeal his view. Citing the AEDPA, he denied this right with regard to the remaining 27 claims presented in Mumia's habeas corpus, or appeal brief. Since Yohn decided Mumia's case, however, the U.S. Supreme Court has at least in part overturned the near-insurmountable "presumption of correctness" standard established by the AEDPA. The court essentially substituted something more akin to the previous standard. This important modification of the AEDPA was a product of the court's decision in the case of Miller El v. Cockrell, decided in 2003. While the Third Circuit's rationale for its reversal of Yohn and the resulting granting of the two new certificates of appealability have yet to be published, it is likely that the court relied on Miller El.. Mumia's appeal to the Third Circuit, authored by Robert R. Bryan, indeed cited Miller El several times. The Third Circuit's decision was not entirely positive. It denied Mumia certificates of appealability with regard to four other important points raised by the defense, including the right to self-representation, the exclusion of Mumia from a majority of the court proceedings in his own trial and the racist exclusion of an already selected Black juror from the jury panel. The Third Circuit also allowed the State of Pennsylvania to challenge a Federal District Court decision that had previously ordered the State to hold a new sentencing hearing based on the constitutionally flawed jury instructions issued by Judge Sabo. Sabo improperly told the jurors, during the sentencing phase of Mumia's 1982 trial, that if they were to decide to find mitigating circumstances sufficient to impose a life sentence rather than execution, they would have to be unanimous. The Federal District Court ruled that unanimity had never been required. It ordered the State of Pennsylvania to hold a new sentencing hearing, in effect a new trial, within 180 days and with the proper jury instructions. If the state failed to do so Yohn asserted that he would impose a life sentence on Mumia in place of the jury's execution verdict. The Dec. 6 Third Circuit granted the State of Pennsylvania a certificate of Appealability on this matter, an ominous ruling to say the least. While legal analysts doubt that Pennsylvania prosecutors will be successful in pursuing this "victory" for reaction, if they are, and if Mumia loses on the remaining three issues where he was granted review, he will once again be subject to an order for his execution by lethal injection. But Robert R. Bryan, backed by several precedents on this point, seriously doubts that Pennsylvania prosecutors can succeed in their effort to uphold Judge Sabo's flawed jury instructions. Assuming Bryan is correct and the State of Pennsylvania fails in this matter, the result must be either a decision by state prosecutors to drop the matter of Mumia's execution entirely and abide by Yohn's decision to change the verdict from execution to life imprisonment, or, in the alternative, the state can impanel an entirely new jury and retry the entire case. In this eventuality, however, the jury's verdict would be restricted to two options only, execution or life imprisonment. A verdict of innocence would be excluded from consideration. Even here, however, the defense's ability to bring in evidence of innocence during a potential second trial might well result, according to Bryan, in new proceedings that could lead to Mumia's freedom. From the realm of speculation we now proceed to consideration of more probably outcomes. Bryan asserts with confidence that "The Third Circuit decision opens the door to a new trial and freedom for my client." The case is now on the legal fast track. The next several months will see defense and prosecution attorneys meeting stringent deadlines for a series of briefs and counter briefs. The first deadline, January 17, has been imposed on the State of Pennsylvania to present its opening brief. Barring the granting of extensions, thirty days later the opening brief for the defense are to follow. These will be followed by a series of rebuttals. The 10-person court will then issue a decision or first set a date for a hearing and oral arguments. In addition to the possible outcomes discussed above the Third Circuit could either order a new trial on all issues or send the case back to the Federal District Court to re-hear the issues where it had previously ruled without regard to Mumia's constitutional rights. Close observers, including former Pennsylvania state prosecutors believe that a new trial for Mumia, where for the first time in 24 years he would be allowed to present the full range of evidence proving his innocence, could only result in his acquittal and freedom. While Mumia has won a critical victory on this road, Pennsylvania officials are far from conceding any error. They remain focused on securing a third order for Mumia's execution. Mumia's freedom will be a product of both his legal efforts and a mass political movement exerting its will and making the price of his execution and continued incarceration to high to pay. Friend of the court or amicus curiae briefs are in preparation for Mumia by the NAACP's Legal Defense Fund on the Batson/jury selection issue and by the National Lawyers Guild on the issue of the constitutionally-flawed trial summation by state prosecutor, Joseph McGill. In Philadelphia contact: International Concerned Family and Friends of Mumia Abu-Jamal at 215-476-8812. In San Francisco contact: The Mobilization to Free Mumia Abu-Jamal at 415-255-1080. jmackler@locrian.com © 2005 Jeff Mackler