BY JEFF MACKLER

From Socialist Action, November 2009
www.socialistaction.org/mackler40.htm

After almost 28 years on Pennsylvania’s death row and innumerable battles in the U.S. criminal injustice system, innocent political prisoner, journalist and world renowned “Voice of the Voiceless” Mumia Abu-Jamal lost his final appeal on April 6, 2009. Ignoring it’s own precedents and those of the Third Circuit U.S. Court of Appeals below it, the U.S. Supreme Court declined to affirm what had been the “law of the land” for decades, 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 notorious “hanging judge” Albert Sabo, the prosecutor Joseph McGill used 10 or perhaps 11 of his 15 peremptory strikes against Black jurors. But as with virtually all court decisions over the past decades in Mumia’s case, the “Mumia Exception,” the contorted interpretation of the “law” to reach a predetermined result, was once again applied, with the high court refusing to review the twisted logic of its subordinate bodies thereby allowing Mumia’s frame-up murder conviction to stand.

But what has caught the attention of both legal observers and human rights activists even more is the fact that the same court, while refusing to hear Mumia’s appeal, chose to delay a ruling on a cross appeal filed by the State of Pennsylvania that seeks Mumia’s execution. Pennsylvania prosecutors, twice rejected in their efforts to impose the death penalty on Mumia (in 2001 and 2008), may have found new support in the U.S. Supreme Court.

It appears that the court’s delay in ruling on the validity of Mumia’s original execution sentence was due to its decision to grant oral arguments in the Ohio case of Smith v. Spisak, a case that might re-write or reinterpret the nation’s laws to make it easier to obtain jury verdicts calling for execution. The Court heard Ohio prosecutor’s arguments for Spisak’s execution on October 13, 2009. A ruling is expected in the year ahead.

Frank Spisak, a neo-Nazis who wore a Hitler mustache to his trial, denounced Jews, and Blacks and confessed in court to three hate crime murders in Ohio, saw his jury-imposed death sentence reversed in the federal courts when his attorney’s successfully invoked a 1988 Supreme Court decision in the famous Mills v. Maryland case. Mills requires that in order to find mitigating circumstances sufficient to impose a sentence of life imprisonment without parole, as opposed to the death penalty, the jury’s majority decision (as opposed to unanimous decision) on each mitigating circumstance is sufficient. In both Spisak and Mumia’s case the presiding trial court judge violated Mills and in essence instructed the juries that unanimity, not a majority vote on each mitigating circumstance was required. In both cases the prosecution’s appeal was rejected and Mills was upheld, thus staying the imposed death sentences and ordering a new trial or sentencing hearing with the proper jury instructions. In both cases the prosecution, seeking to avoid a new trial in any form, appealed to the U.S. Supreme Court demanding execution.

An April 7, 2009 article in the Legal Intelligencer, the oldest law journal in the country, had this to say about the Supreme Court’s decision to delay a ruling on Pennsylvania’s request to re-impose the death penalty on Mumia.

“In both cases, [Spisak and Abu-Jamal] the federal courts' decisions to overturn the death sentences hinged on Mills v. Maryland -- a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.

“The Mills ruling struck down a Maryland statute that said juries in capital cases must be unanimous on any aggravating or mitigating factor. [Emphasis added].

“The justices declared that unanimity was properly required for any aggravating factor, but that mitigating factors -- those that weigh against imposing a death sentence -- must be handled more liberally, with each juror free to find on his or her own.”

The effect of Mills was to make it harder for prosecutors to obtain death sentences in capital cases. The Intelligencer concludes, “The question now before the courts is whether Mills requires that death sentences in other states be overturned if the juries in those states are misled by faulty instructions or sufficiently vague verdict forms to believe that mitigating factors require unanimity.” [Emphasis added].

I emphasize the words “other states” because prior to this unexpected turn of events the legal community appeared to agree that Mills applied to all states. That is, if a jury was orally mis-instructed and/or received faulty or unclear verdict forms that implied it needed to be unanimous with regard to mitigating circumstances sufficient to not impose the death penalty, the death penalty was set aside and a new sentencing hearing was ordered.

This 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 at a new sentencing hearing where new evidence of innocence can be presented by Mumia, but where the jury can only decide between execution and life in prison without parole. At this hearing, the jury cannot make a decision regarding guilt. Since then, Pennsylvania officials have effectively stayed Yohn’s order by appealing to the higher federal courts.

In deciding to hear Ohio prosecutors’ arguments in the Spisak case with regard to Mills the Supreme Court has implied that one of the key issues they will consider centers on the interpretation of the concept of federalism, that is, that the exercise of power in the U.S. is shared in some measure between the federal government and the states. The political pendulum has swung back and forth on this issue. In past decades, the “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 has been far from blind in racist 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 in the State of Maryland, the would-be Ohio and Pennsylvania executioners argue that based on the laws of their states, Mills cannot be automatically applied to the situation in Ohio where a different set of jury instructions and therefore jury deliberations were involved. Indeed, Ohio prosecutors argued before the Supreme Court on October 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.

Should this “states’ rights” argument be accepted and Mills be effectively constricted, the Supreme Court could then uphold Spisak’s death sentence and, with a mere citation to Spisak and the new interpretation of Mills, uphold the Pennsylvania’s appeal seeking Mumia’s execution.

While most legal observers previously considered a Supreme Court Mills re-interpretation a virtual impossibility, the stage has now been set for such an outcome. The state’s longstanding effort o execute Mumia has been given new legal avenues for success with the top court’s decision to re-consider the Spisak case.

What the Supreme Court will do, however, is far from clear. It will also consider Spisak’s new attorney’s argument that his jury trial lawyers were incompetent in essentially arguing during their trial summation that Spisak was essentially an extreme and horrific nut case who barely understood what he was doing. Should the Supreme Court chose to ignore or side-step Pennsylvania’s Mills arguments and rule only on the issue of ineffective assistance of counsel, the chances of Mumia’s execution recede considerably. The court could also chose to remand the case back to the lower courts to reconsider their previous Mills interpretation in light of the Supreme Court’s possible new instructions on this issue. Second guessing the courts in Mumia’s 28-year legal sojourn has stumped virtually the entire legal community, or at least those who believe that the laws of the land should be implemented without prejudice to the individual concerned. In virtually every instance, however, this has not been the case; an unending series of legal atrocities have been perpetrated against Mumia that expose the criminal “justice” system for the fraud it is in racist and classist America.

Mumia is far from out of danger, especially when his very life, in legal terms, presently hinges on the whims of the Supreme Court, the institution that has already denied his request for a hearing before them on another issue, the systematic and racist exclusion of Black jurors. Such exclusion is explicitly prohibited in the historic 1986 Supreme Court ruling in the case of Batson v. Kentucky. But the court once again ignored its own rulings and even decisions that strengthened Batson claims to hasten Mumia's demise. In every sense Mumia’s life is on the line as never before. Pennsylvania’s Governor Ed Rendell is pledged to sign what could be the third and final warrant for Mumia’s execution, a warrant that would likely order that his life be taken by lethal injection.

Mumia's supporters around the world and Mumia himself have long known that the battle for his life and freedom would be qualitatively more advanced by the construction of a powerful mass movement in the streets that won the hearts and minds of millions and more than reliance on a court system permeated by its very nature with class and race bias.

The state power's march for Mumia’s execution has not been limited to the courts. The 2007 “Murdered by Mumia” book co-authored by Maureen Faulkner, the wife of police officer Daniel Faulkner, who Mumia was falsely convicted of murdering, and rightwing talk radio host, Michael Smerconish, presents an outrageous account of Faulkner’s murder. While having little or no basis in the facts of the case the book has nevertheless been used to advance the Fraternal Order of Police’s longstanding campaign to execute the “cop killer.”

More recently, filmmaker Tigre Hill has produced a work scheduled for a debut in Philadelphia in December and later international distribution entitled, “The Barrel of a Gun,” wherein ex-Black Panther leader Bobby Seal’s rhetoric about “offing the pig,” is coupled with rightwinger David Horowitz’s assertions that Mumia was merely carrying out Panther policy. The three-minute preview or trailer to “The Barrel of a Gun” theorizes, without a shred of evidence, that Mumia and his brother Billy Cook, literally planned the Faulkner murder, ambush style.

Those unfamiliar with Mumia’s background and the facts of the case could only conclude that Mumia was guilty without question. That Mumia had left the disintegrating Panthers more than a decade before his frame-up trial, that he was an award-winning journalist and president of the Association of Black Journalists, a leading reporter/critic of the Philadelphia Police Department, dozens of whose officers were indicted and convicted on Justice Department charges of involvement in drug-running, prostitution, planting and falsification evidence and intimidation of witnesses, was not mentioned.

Today, having exhausted most all legal remedies, Mumia’s supporters are engaged in an important campaign to demand a Justice Department civil rights investigation into charges presented by his supporters that demonstrate illegal collusion between Pennsylvania prosecutors and the judiciary. A delegation of Mumia’s defenders across the country has planned a November 12 visit to Washington, D.C. where a meeting with Attorney General Eric Holder will be sought for this purpose. Thousands of petitions demanding Mumia’s freedom obtained across the world will also be presented Holder and to officials of the U.S. Supreme Court.

Similarly, a mass antiwar protest in Washington, D.C.’s Malcolm X Park is set for Saturday, November 7. In addition to the immediate withdrawal of all U.S. troops from the Middle East the sponsoring Black is Back Coalition is demanding Mumia’s freedom.

In the San Francisco Bay Area the Mobilization to Free Mumia Abu-Jamal is sponsoring a tour with Amnesty International’s Death Penalty Abolition Campaign leader Laura Moye. Entitled “Innocent but Facing Execution,” the tour will focus on the cases of Mumia, Troy Davis and Kevin Cooper, three innocent frame-up victims of America's racist criminal “justice” system.

For information in Philadelphia call: 215-476-8812. In San Francisco: 510-268-9429.