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4/26/11 - Mumia Abu-Jamal Wins Critical Court Decision

BY JEFF MACKLER

The U.S. Court of Appeals for the Third Circuit in Philadelphia ruled today (April 26, 2011) that the world-reknown and innocent 29-year death row inmate Mumia Abu-Jamal must receive either a new sentencing hearing within six months or have his 1982 jury-imposed death penalty sentence reversed and instead be incarcerated for life in the general prison population without possibility of parole.

Jamal, 58, was framed-up for the 1981 murder of Philadelphia police officer, Daniel Faulkner, despite massive evidence that he had nothing to do with Faulkner's murder. An award-winning journalist at the time and today a leading critic of U.S. racist, anti-working class and imperialist policies, Jamal is the author of nine books. His weekly news commentaries are published in radical and social justice newspapers around the world, Mumia, as he is known to his friends and supporters, has become an international symbol of opposition to the racist and classist U.S. criminal "justice" system which today incarcerates some 3500 mostly poor people, the majority Black and Latino in its growing death row institutions and 3.5 million in its increasingly for profit and near slave labor prison-industrial complex. An astonishing 7 million people are today in U.S. prisons or under the jurisdiction of the system's various institutions.

The Third Circuit's decision reaffirmed its own 2008 ruling on the same issue as well as the original 2001 decision of Federal District Court Judge William H. Yohn. Both found that the sentencing instructions presented to Mumia's jury in 1982 by "hanging judge" Albert Sabo violated the Eighth Amendment to the U.S. Constitution and the U.S. Supreme Court's precedent-setting case, Mills v. Maryland, wherein the court ruled that flawed jury instructions akin to Sabo's were unconstitutional.

Sabo instructed the jury during the sentencing phase of Mumia's frame-up murder trial that they must be unanimous with regard to each possible mitigating circumstance in order to determine whether such mitigation could later be considered in weighing whether or not to impose the death penalty versus life imprisonment without parole.

Sabo's instructions, and the associated written forms that jurors were given while deliberating Mumia's sentence, essentially implied that a single juror had the right to exclude from consideration any mitigating circumstance. The Third Circuit disagreed and reaffirmed its 2008 ruling that a single juror may find a mitigating circumstance that in his or her view outweighs all aggravating circumstances. This alone would be sufficient to prohibit a death penalty sentence and require a sentence of life imprisonment. This eventuality assumes, of course, that the jury first finds the defendant guilty by unanimous vote.

Mumia's trial was a legal, political and racist atrocity, so much so that human rights organizations and labor and social justice groups from Amnesty International, the NAACP and the California Labor Federation to the European Parliament and thousands of labor unions and internationally prominent individuals around the world condemned it and demanded Mumia's freedom and/or a new trial.

As the case wound its way through the criminal "justice" system, a series of gross violation of Mumia's legal rights, accompanied by the blocking from consideration of direct evidence of innocence, was systematically employed to march Mumia toward the death chambers at his maximum security SCI Greene prison in rural Pennsylvania, where is has been held in a tiny and isolated cell on death row for almost three decades.

The mind-boggling resort to spurious interpretations of the "law" - "innocence is no defense" - and the passage of new laws that make the presentation of evidence of innocence virtually impossible, brought to light the government's "Mumia Exception" policy wherein the law "in all its majesty," applies fully to everyone, EXCEPT Mumia.

Such was the case with the infamous 1996, Clinton-signed, Anti-terrorism and Effective Death Penalty Act (AEDPA) that for the first time in seventy-plus years held that the findings of "fact" of state courts had to be granted a "presumption of correctness" by federal appeals' courts. This law, applied early on in Mumia's Federal District Court hearing, effectively eliminated the historic habeas corpus (right to appeal) foundation of the original U.S. legal system. Prior to AEDPA some 40 percent of state court convictions in capital cases were reversed on appeal, usually based on findings of police corruption, planting of evidence, intimidation of witnesses and incompetent counsel, all of which were grossly operative in Mumia's 1982 frame-up trial. Under the AEDPA, they were effectively excluded from consideration on appeal and the findings of Judge Albert Sabo ("I'm going to help 'em fry the n----r" Sabo), aided by the AEDPA, were allowed to stand unchallenged.

When the above-quoted statement made by Sabo immediately prior to entering the courtroom to preside over Mumia's case, was introduced in court as evidence of bias, the assigned Judge Pamela Dembe crudely ruled that however reprehensible such a statement might be, "there was no evidence" of Sabo bias "during Mumia's trial!" This in the face of more than 100 rulings against motions presented by Mumia's legal team and virtually none against the prosecution! This in the face of Mumia being physically excluded from the courtroom for a majority of his own trial! And this in the face of key prosecution witnesses being threatened with imprisonment unless they falsely testified against Mumia!

The court's decision today, reaffirming its previous 2008 decision on the exact same issue, was a product of the U.S. Supreme Court's intervention at the request of Pennsylvania prosecutors. The high court of essentially reactionary jurists selected by the representatives of the ruling rich, cited their earlier ruling in the infamous January 2010 case of Smith v. Spisak, where the court ruled against a self-confessed Nazis triple murderer who sought relief by citing the improper jury instructions of an Ohio trial judge. Using this ruling the Supreme Court remanded Mumia's case to the Third Circuit with instructions to reconsider its previous ruling in light of its new Spisak decision, the latter, in the tradition of reactionary "states rights" rulings aimed at opening the door to Mumia's execution. The refusal of the Third Circuit to do so on April 26 sets the stage for yet another appeal by Pennsylvania district attorneys to the U.S. Supreme Court, a decision that Philadelphia District Attorney Seth Williams pledged today to mount.

In truth, however, the resort to the Supreme Court by Pennsylvania authorities has less to do with a final shot at "legally" reversing a decision made against Philadelphia's persecutors in three separate rulings than it does with abiding by the order it has repeatedly fought, that is, to grant Mumia a new sentencing hearing. While formally a new jury in such a hearing would be prohibited from reversing the previous "guilty" verdict of the 1982 jury, it would be compelled to hear evidence of innocence in Mumia's case that had previously been banned or suppressed by Judge Sabo and his cohorts in the frame-up system that places millions of poor people, mostly Black and Brown, in prison with little or no recourse.

Here Mumia's would-be District Attorney murderers would be compelled to suffer the humiliating possibility of a jury that just might refuse to render any sentence at all against Mumia after being presented with the massive evidence of his innocence and after the full force of Mumia's frame-up is finally revealed. Better to have the Supreme Court murder Mumia than to be frontally exposed by a jury as being integral to the criminal frame-up of an innocent man!

Should the Supreme Court refuse to do DA Seth Williams' dirty work, many observers estimate that Williams and his associates, with prodding from above, will choose the lesser of the two perceived evils before it. That is, they will cease efforts to murder Mumia through the legal system and accept his ordered life imprisonment sentence without parole. The public exposure of the 29-year and ongoing frame-up Mumia Abu-Jamal would pose an unacceptable risk to the very credibility of an already fundamentally flawed system.

Meanwhile, the direct and immediate threat to Mumia's life has been averted, unless, the Supreme Court chooses to abrogate its own decisions and affirms Pennsylvania's twisted interpretation of established case law. This certainly cannot be excluded.

But while he lives the struggle for Mumia's freedom must continue. Indeed, were it not for the worldwide efforts to reverse his racist conviction, he would have been executed long ago. Mumia's life rests in our hands - in the hearts, minds and ongoing efforts of all those who understand that only a massive and united effort can wrest Mumia from the clutches of a social system where justice and freedom are won in struggle and not gifted from those on high at their pleasure.

We must make the political price of Mumia's continued incarceration too high to pay. We must return him to his comrades in the U.S. and the world over who clearly understand that Mumia's freedom represents a resounding blow against the tyranny that oppresses us all.

Free Mumia Abu-Jamal!

Jeff Mackler is the Northern California-based Director of the Mobilization to Free Mumia Abu-Jamal.

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3rd Circuit Appeal Ruling Favoring Abu-Jamal Smacks Down US Supreme Court
By Anonymous
Created 04/26/2011 - 12:18
by:
Linn Washington Jr.

The federal Third Circuit Court of Appeals in Philadelphia, in a stunning smack at the U.S. Supreme Court, has issued a ruling upholding its earlier decision backing a new sentencing hearing in the controversial case of Mumia Abu-Jamal, the convicted killer of Philadelphia Police Officer Daniel Faulkner.
The latest ruling, issued on Tuesday April 26, 2011, upholds a ruling the Third Circuit issued over two years ago siding with a federal district court judge who, back in 2001, had set aside Abu-Jamal's death penalty after determining that death penalty instructions provided to the jury, and a flawed jury ballot document used during Abu-Jamal's 1982 trial, had been unclear.
The U.S. Supreme Court had ordered the Third Circuit to re-examine its 2009 ruling upholding the lifting of Abu-Jamal's death sentence.
The nation's top court had cited a new legal precedent in that directive to the Third Circuit, a strange order given the fact that the Supreme Court had earlier consistently declined to apply its own precedents to Abu-Jamal's case.
The Associated Press was the first to report the Third Circuit's latest dramatic ruling and in fact, as of the morning of the ruling's release, the decision had still not been posted on the appeals court's website.
Abu-Jamal's current lead attorney, Prof Judith Ritter of the Widener Law School, could not be reached for comment.
Mumia Abu-Jamal
The Third Circuit's ruling, if left standing, requires Philadelphia prosecutors to call for a whole new sentencing hearing if they want to try and reinstate the death penalty. That would require the impaneling of a whole new jury, to hear and consider evidence regarding mitigating circumstances and aggravating circumstances in the case, and then to decide for either execution of life-without-possibility of parole--the only two options legally available. Abu-Jamal has exhausted his avenues of appeal of his conviction, absent new evidence in the case.
If prosecutors opted against holding new hearing then Abu-Jamal's sentence would be converted automatically to a life sentence, which in Pennsylvania means no chance of parole. Abu-Jamal would have to spending the remainder of his life behind bars, though not on death row.
Experts contend a new sentencing hearing would be problematic for prosecutors. Although the issue of guilt or innocence would not be on trial, the defense could bring in witnesses to explain exactly what they saw happen the night of the shooting--witnesses whose testimony could ultimately raise new questions about the validity of the underlying conviction.
It is almost a certainty that prosecutors will appeal the Third Circuit's latest ruling back up to the Supreme Court. Furthermore, prosecutors concede that current and yet unresolved legal issues in this case, which continues to attract unprecedented international scrutiny, will keep it in courts for years. For example, there are several avenues of appeal of Abu-Jamal's death sentence which were never adjudicated by the Federal District court, which mooted them after the Judge, William Yohn, found in favor of one argument and tossed out the death sentence.
In early April 2011 the NAACP Legal Defense Fund publicly announced it was joining the Abu-Jamal defense team and working with Professor Ritter. NAACP lawyers had joined Ritter last fall during the hearing where she argued the legal point just upheld by the Third Circuit in its latest ruling.
Recently Abu-Jamal recorded yet another birthday (4/24) inside a death row isolation cell. Abu-Jamal and the 222 other Pennsylvania death row inmates spend 23-hours per day every day isolated inside minimalist cells.
Since 1983 Abu-Jamal has languished in the confinement of death row, following his controversial July 1982 conviction for the murder of Officerl Faulkner.
Now 57, Abu-Jamal has spent nearly 29 years of his life in prison for a crime he has consistently denied committing--a crime that ample evidence conclusively proves could not have occurred as police and prosecutors have proclaimed.
Authorities, for example, claim Abu-Jamal fired four shots at the policeman, while straddling the officer as he lay defenseless on a sidewalk, striking him only once with a fatal shot in the face.
However, police crime scene photos and police reports make no reference of any bullet marks in that sidewalk around the fallen officer--marks that should have been clearly visible if Abu-Jamal fired three shots at almost point-blank range into the sidewalk as witnesses and the prosecutor claimed.
As detailed in an thorough investigative ballistic test released in September 2010 by This Can't Be Happening! (See our film at the bottom of the home page), it is impossible to fire high-velocity bullets into a sidewalk without leaving any marks. TCBH! test-fired each kind of .38-caliber bullets referenced in police reports about the 1981 crime scene into a slab of old city sidewalk, and each of those bullets left easily visible marks…marks totally contradicting claims by authorities that Abu-Jamal wildly fired into the sidewalk without leaving bullet marks.
Rulings by federal and state courts denying Abu-Jamal the legal relief routinely granted other inmates who had raised the same appeals claims are the least-examined element of this internationally-condemned injustice.
The same Philadelphia and Pennsylvania courts that found major flaws by either defense attorneys, police, prosecutors and/or trial judges in 86 Philadelphia death penalty convictions during a 28-year period after Abu-Jamal's December 1981 arrest declare no errors exist anywhere in the Abu-Jamal case - an assertion critics call statistically improbable.
The federal Third Circuit, for example, declined to grant Abu-Jamal a new trial based on solid legal issues from racial discrimination by prosecutors in jury selection to documented errors by trial judge Albert Sabo, the late jurist who relished his infamous reputation for pro-prosecution bias.
The Third Circuit's 2008 ruling faulting Sabo for his inability to provide the jury with simple death penalty deliberation instructions included the contradictory conclusion that Sabo had adequately provided the jury with instructions about a highly complicated legal issue involving misconduct by the trial prosecutor.
Faulting Sabo for that flawed instruction on prosecutorial misconduct would have required the Third Circuit to give Abu-Jamal a whole new trial. Unwilling to do that, the court sidestepped its duty to ensure justice, by deciding to just eliminate Abu-Jamal's death sentence, instead.
Pennsylvania state courts have released three Philadelphians from death row (half of Pa's death row exonerations to date) citing misconduct by police and prosecutors…misconduct that was less egregious than that documented in the Abu-Jamal case. One of those Philadelphia exonerations involved a man framed by police for a mob-related killing, who was arrested six months before Abu-Jamal.
While many people in Philadelphia may feel Abu-Jamal is guilty as charged, millions around the world question every aspect of this conviction, citing facts that proponents of Abu-Jamal's conviction deliberately dismiss as irrelevant.
This widespread questioning of Abu-Jamal's guilt is the reason why pro-Abu-Jamal activities occurred around the world commemorating Abu-Jamal's 4/24 birthday, including people in San Francisco attending a screening of the “Justice on Trial” movie examining ignored aspects in the case, and people marching for Abu-Jamal's freedom in the Brixton section of London.
Officials in the French city of Saint-Denis will stage a ceremony rededicating a street they named for Abu-Jamal during the last weekend in April.
The ire erupting over Abu-Jamal's prominence on the part of advocates of his execution contains contradictions that are as clear as the proverbial black-&-white.
The U.S. Congress engaged in color-coded contradiction approving a May 2006 resolution condemning far off Saint-Denis for its honoring Abu-Jamal by placing his name on a small one block long street.
Over a decade before that anti-Saint-Denis outrage, over 100 members of Congress had battled to block the U.S. government from deporting a white fugitive convicted of killing a British Army officer in Belfast, Northern Ireland.
That officer's killing had occurred during an investigation into the murder of another Belfast policeman.
Incidentally, the U.S. Congress did not erupt angrily when the City Council of New York City voted to place the name of that fugitive - Joseph Doherty - on the street corner outside the federal detention center then housing him.
In 1988 - six years after Abu-Jamal's conviction - more than 3,000 Philadelphians signed petitions asking federal authorities to grant Doherty special permission to leave his federal detention cell for one day to allow Doherty to serve as Grand Marshall of Philadelphia's St Patrick's Day Parade.
One Philly supporter of suspected convicted cop killer Doherty was the then-President Judge of Philadelphia's trial courts, Edward J. Bradley.
Judge Bradley told a reporter in 1988 that he had no problems as a jurist reconciling his support for a convicted felon because he questioned the “fair treatment” Irish nationals received in English courts.
Judge Bradley's concern about fairness for IRA fighters in English courts is not parallelled by any concern about fairness in Philadelphia courts with regard to the case of former Black Panther Party member Abu-Jamal. Judge Bradley's double standard highlights the gross unfairness of Philadelphia and Pennsylvania state court judges.
Critics who castigate those who contribute to Abu-Jamal's defense fund, especially by Hollywood stars, did not object to fund-raising on behalf of one of the white Los Angeles policemen convicted in federal court for the 1991 beating of Rodney King. That criminal cop was allowed to keep nearly $10-million in sales from his book and from a fund-raising campaign on his behalf - monies generated mainly after that the former police sergeant's imprisonment following a civil rights violation conviction.
One reason the decades-old Abu-Jamal case continues to generate support and rage is Abu-Jamal himself.
A charismatic figure who is articulate, with a level of education and intelligence atypical of the mainly illiterate denizens of death row, Abu-Jamal is able to explain his case, as well as to expose the horrors of the nation's prison system and its death rows.
While on death row Abu-Jamal has written six critically acclaimed books (including one on jailhouse lawyers), produced thousands of commentaries, learned two foreign languages, earned two college degrees, including a masters, and developed a loyal support network comprising millions worldwide.
Even the prosecutor at Abu-Jamal's 1982 trial - Joseph McGill - described him during that trial as the most “intelligent” defendant he'd ever faced.
And another prosecutor, during Abu-Jamal's tainted 1995 appeals hearing, said he didn't think “the shooting of Officer Faulkner is characteristic of this defendant.” (Abu-Jamal had no record of violence or criminal acts before his 1981 arrest.)
Supporters applaud Abu-Jamal's defense of the downtrodden, particularly his poignant criticisms of America's prison-industrial complex, that incarcerates more people per capita than any other country on earth.
Abu-Jamal's stance highlighting the deprivations of the have-nots, predated his arrest, and had earned him the title of “Voice of the Voiceless” during his professional broadcast reporting career, which ran from 1975 till his December 1981 arrest.
Abu-Jamal rarely uses his world-wide platform to speak about his own plight, preferring to focus instead on the injustices endured by others.

Source URL: http://www.thiscantbehappening.net/node/579

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Also see Prison Radio at: www.prisonradio.org

Mumia's birthday was April 24. Send him a note of solidarity to:
Mumia Abu-Jamal
AM 8335 SCI Greene
175 Progress Dr.
Waynesburg PA 15370

Mumia Bio:

Mumia Abu-Jamal is an award-winning journalist who chronicles the human condition. He has been a resident of Pennsylvania's death row for twenty-nine years. Writing from his solitary confinement cell his essays have reached a worldwide audience. His books "Live From Death Row", "Death Blossoms", "All Things Censored", “Faith of Our Fathers”, “We Want Freedom”, and “Jailhouse Lawyers” have sold hundreds of thousands of copies and been translated into nine languages. His 1982-murder trial and subsequent conviction has been the subject of great debate.
Below is the Third Circuit's April 26 decision.

http://www.ca3.uscourts.gov/opinarch/019014p2.pdf


EXCERPTS:

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 01-9014

___________

MUMIA ABU-JAMAL,

a/k/a WESLEY COOK


direct quotes from decision

“Accordingly, the Pennsylvania Supreme Court failed to evaluate whether the complete text of the verdict form, together with the jury instructions, would create a substantial probability the jury believed both aggravating and mitigating circumstances must be found unanimously. See id. For these reasons, the Pennsylvania Supreme Court's application of Mills was objectively unreasonable.

"thereby making clear that, although aggravating circumstances must be found unanimously, mitigating evidence need not be found unanimously in order to be considered by individual jurors during the weighing and balancing process."

"For the foregoing reasons, we will affirm the District Court's grant of relief on the mitigation instruction claim. As the District Court noted, the “Commonwealth of Pennsylvania may conduct a new sentencing hearing in a manner consistent with this opinion within 180 days of the Order accompanying this [opinion], during which period the execution of the writ of habeas corpus will be stayed, or shall sentence [Abu-Jamal] to life imprisonment.” Abu-Jamal, 2001 WL 1609690, at *130."

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AP STORY

US court grants new sentencing for Mumia Abu-Jamal

(AP) - 2 hours ago

PHILADELPHIA (AP) - A federal appeals court on Tuesday ordered a new sentencing hearing for convicted police killer and death-row activist Mumia Abu-Jamal, finding for a second time that the death-penalty instructions given to the jury at his 1982 trial were potentially misleading.
The 3rd U.S. Circuit Court of Appeals ordered prosecutors to conduct the new sentencing hearing within six months or agree to a life sentence. Abu-Jamal's first-degree murder conviction nonetheless stands in the fatal shooting of Officer Daniel Faulkner.
Prosecutors said they were considering another appeal to the U.S. Supreme Court.
"We continue to maintain that granting this new sentencing hearing is contrary to clearly established precedent of the United States Supreme Court," District Attorney Seth Williams said in a statement.
Abu-Jamal's lawyer, Widener University law professor Judith Ritter, did not immediately return a call to The Associated Press.
Tuesday's ruling is the latest in Abu-Jamal's long-running legal saga.
A federal judge in 2001 first granted the former Black Panther a new sentencing hearing over the trial judge's instructions on aggravating and mitigating factors. Philadelphia prosecutors have been fighting the order since, but the 3rd Circuit ruled against them in a pivotal 2008 decision.
In rejecting a similar claim in an Ohio death-penalty case last year, the Supreme Court ordered the Philadelphia appeals court to revisit its Abu-Jamal decision.
On Tuesday, the 3rd Circuit judges stood their ground and noted differences in the two cases.
Under Pennsylvania law, Abu-Jamal should have received a life sentence if a single juror found the mitigating circumstances outweighed the aggravating factors in Faulkner's slaying. The three-judge appeals panel found the verdict form confusing, given its repeated use of the word "unanimous," even in the section on mitigating circumstances.
"The Pennsylvania Supreme Court failed to evaluate whether the complete text of the verdict form, together with the jury instructions, would create a substantial probability the jury believed both aggravating and mitigating circumstances must be found unanimously," Judge Anthony J. Scirica wrote in the 32-page ruling.
Tuesday's decision upholds the 2001 ruling by U.S. District Judge William H. Yohn Jr., who first ruled that the flawed jury instructions warranted a new sentencing hearing. While prosecutors were fighting that ruling, Abu-Jamal has been fighting unsuccessfully to have his conviction overturned.
Faulkner, a white 25-year-old patrolman, had pulled over Abu-Jamal's brother on a darkened downtown street in 1981. Prosecutors say Abu-Jamal saw the traffic stop and shot Faulkner, who managed to shoot back. A wounded Abu-Jamal, his own gun nearby, was found at the scene when police arrived.
Abu-Jamal is now 58. His writings and radio broadcasts from death row have made him a cause celebre and the subject of numerous books and movies. Hundreds of vocal death-penalty opponents and supporters typically turn out for hearings in his case.

Copyright © 2011 The Associated Press. All rights reserved.