Cops, Courts Aim to Silence ‘Voice of the Voiceless’

For Labor Action to Free Mumia!

Reprinted below are excerpts from a statement published in February by the San Francisco Bay Area-based “Labor Action Committee To Free Mumia Abu-Jamal” on recent developments in the case.

Mumia Abu-Jamal is a former Black Panther, award winning journalist, behind-bars commentator on critical social issues—and an innocent man on death row. In April 2009, after more than two decades of court rulings that ignored mounting evidence of his innocence, the Supreme Court upheld his 1982 frame-up conviction without comment. Then, this January, the Court moved closer to reinstating his death sentence—which had been put on hold by lower court rulings.

On January 19th the Supreme Court “vacated” the Third Circuit (federal appellate) ruling, which—after up-holding Mumia’s conviction—said that Mumia’s death sentence had been imposed under faulty instructions to the jury. The Third Circuit had instructed Pennsylvania state courts that under Mills v Maryland—a 1988 Supreme Court precedent—Mumia’s sentence should be decided again in a new sentencing hearing, or (if no such hearing was held) converted to a life sentence without the possibility of parole. In Mills, the Supreme Court had struck down a Maryland statute which said that juries in capital cases must be unanimous on any aggravating or mitigating factor when deciding the sentence. The Mills ruling said that while aggravating factors need be unanimous, factors that mitigate against imposing death required a simple majority only. The Third Circuit said Mills applied in Mumia’s case, and so required reconsideration of the sentence.

But now, the Supreme Court has ordered the Third Circuit to reconsider this decision. They did so in light of their recent ruling on another case, Smith v Spisak. Having summarily tossed out Mumia’s appeal against his conviction last year, the Court waited until now, after its Spisak ruling, to take up the cross-appeal by the Philadelphia DA, seeking to reinstate Mumia’s death sentence. It was obvious that the Court planned to use its Spisak ruling against Mumia, and now it has. The clear implication was that the Third Circuit had just lost its reason (the Mills precedent) for setting aside Mumia’s death sentence:

“Of the cases summarily decided [January 19th], one is especially noteworthy: the Court has granted the petition in Beard v. Abu-Jamal (08-652), vacating and remanding to the Third Circuit to consider in light of Smith v. Spisak.”

Smith v Spisak stemmed from a case in Ohio of an avowed neo-Nazi, who confessed in court to murdering five people for racist reasons. Spisak’s death sentence had been set aside, based on faulty jury instructions under the Mills precedent, similar to Mumia’s, in two lower court rulings. The Supreme Court unanimously reversed these, and said Spisak should be executed. The Mills ruling had the effect of inhibiting, somewhat, the rush to execute. But in its current ruling in Spisak, the Court said that Mills may not apply in any given state, based on differing jury-instruction forms which may or may not be confusing to jurors on the issue of mitigating factors. Thus the Court watered down what was considered to be a binding national precedent, with language allowing different states to make their own interpretations—a “states rights” position.

It is important to see through the haze of legal gibberish here. In saying that Mills didn’t apply in the Spisak case, the Supreme Court allowed itself to say, only days later, that Mills probably didn’t apply to the politically more important case of Mumia Abu-Jamal either. The Court thus weakened its own precedent in order to reinforce and strengthen the death penalty generally. And at the same time, it used the case of a confessed racist murderer to set back the struggle of a world-renowned, innocent and anti-racist death-row prisoner—Mumia Abu-Jamal.

Taking precedent-breaking legal measures against hard right-wing targets in order to use them against the working-class left, is a long-established tactic of a ruling class which seeks above all to preserve its own power. But in the case of Mumia Abu-Jamal particularly, breaking legal precedent in order to hasten his execution is the norm. In making its flat-out rejection of Mumia’s appeal last April, the Supreme Court had to knowingly violate its own well-established precedent in Batson v Kentucky—the 1986 ruling which said that purging a jury on the basis of race was unconstitutional. One of the best-known legal precedents in modern U.S. history, Batson required that convictions be thrown out for even one incident of racially-based juror exclusion. And, it was to be applied retroactively. In Mumia’s 1982 trial, the prosecutor used at least 10 out of 15 peremptory challenges to exclude blacks for reasons that were not applied to prospective white jurors.

Many other precedents have been broken as well by appellate courts, which were then upheld by the Supreme Court. The Third Circuit reversed a well-established rule preventing prosecutors from undermining the principle of “innocent until proven guilty beyond a reasonable doubt” in their summations to the jury. In Mumia’s case, the prosecutor said that Mumia would go free immediately if acquitted, but would get “appeal after appeal” if convicted, thus saying to the jury that if in doubt they should convict, not acquit. Having tossed this practice in an earlier case involving the same prosecutor, they upheld it in Mumia’s case, and this in turn was upheld by the Supreme Court. (In yet another case, the Third Circuit later restored the earlier precedent on this issue.)

Still more fundamental is the question of innocence itself. In order to convict and uphold Mumia’s conviction the prosecution manufactured false confessions, planted evidence, and threatened “witnesses” into saying they saw what they didn’t see. All of these illegal tricks were used against Mumia, yet no court has overturned the conviction because of them. Meanwhile, the real evidence—including witnesses who saw the real killer or killers run away, and a witness (William Singletary) who said Mumia didn’t shoot anybody but who was not called to testify—should have proven Mumia’s innocence from the start. But more evidence of innocence has come in since the trial, including witness recantations, another man (Arnold Beverly) who confessed, and photos of the crime scene that show that police lied.

“Innocent until proven guilty beyond a reasonable doubt” is perhaps the most fundamental of all legal precedents, predating the U.S. legal system itself. The whim of the feudal lord to execute whom he pleased, has (supposedly) been replaced in bourgeois society by the rule of law. And if the state has failed to really prove guilt or has ignored new evidence of innocence, but is still holding the prisoner, there is the ancient precedent of habeas corpus, under which the state must explain why it is still holding the person.

But in the U.S., where the term “lynch-law” entered the language, and where the legal system is based largely on the law of the slave-holders, both of these fundamental principles have been thoroughly undermined. In the Supreme Court’s Herrera v Collins decision, and in the 1996 Anti-Terrorism and Effective Death Penalty Act (ATEDPA) signed by Democratic President Bill Clinton, U.S. legal precedent makes it nearly impossible to overturn a fraudulent conviction on appeal. The “facts” of the case as established in state courts must now be accepted in federal appeals courts regardless of merit, and the “timeliness” of appeal filings must be observed, thus gutting the right of habeas corpus. For U.S. courts, if you’re outside these narrow boundaries, and especially if you’re targeted as an enemy of the state the way Mumia is, innocence is no defense!

A small handful of innocents on death row have been released for factors such as false confessions, police corruption of witnesses, ineffective assistance of counsel, or the confession of someone else to the crime. And more recently, DNA evidence has provided relief to some frame-up victims, although even this can be distorted by police, or studiously overlooked by the courts (see the Kevin Cooper case for instance: In one state out of 50 (Illinois), death sentences were systematically tossed when half of death row inmates were found to be innocent.

The case of Mumia Abu-Jamal shows that the much-heralded “rule of law” in this so-called democracy is a fraud from beginning to end. For nearly half a century, Mumia has been hounded by the state’s forces of “law and order.” First targeted when he was 15 under the FBI’s counter-intelligence program (COINTELPRO) for his political work as an activist exposing police racism and brutality, Mumia was framed on the spot in December of 1981 for killing a police officer who was probably talking to the Justice Department about the corruption of inner-city cops in his district. A man named Arnold Beverly later confessed that he was hired by corrupt cops to kill the officer, Daniel Faulkner, because Faulkner had been “interfering” with police pay-offs in downtown Philadelphia.

While we support pursuing all available legal avenues to defend Mumia in court, and we support and urge that donations be made to Mumia’s legal defense fund, we find that there is no point in petitioning corrupt authorities such as Obama and the U.S. Justice Department to correct wrongs which they themselves are either responsible for, or firmly committed to. Pleading with such a system to have a change of heart can only sow illusions, and undermine Mumia’s defense. The petitions demand nothing, they only ask for an internal review of the system, by the system.

We have no quarrel with the millions of well-meaning individuals around the world who have already signed the two petitions (one to the U.S. Justice Department under [Eric] Holder, and another to Obama). The problem is rather one of leadership.

When longshore workers shut down West Coast ports and marched through San Francisco streets in 1999, they chanted, “An injury to one is an injury to all! Free Mumia Abu-Jamal,” thereby uniting the black freedom struggle and the workers movement in one powerful action. We know that if freedom is to be won for Mumia, a massive movement of working people must be mobilized. Educate, agitate, organize and demonstrate! Build workers actions to free Mumia!