Mumia
Abu-Jamal Case is Stuck in Hellish Limbo
13 February 2010By Dave Lindorff
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 with any intellectual honesty
or integrity 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, there 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 challenges to
his sentence. And those challenges are all 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 he 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 to 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 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 to you 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
surveillence 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
misconducdt 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, purjured
prosecution witness testimony and political
interference, will continue to drag on unresolved for
years to come.
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