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News 10/15/03 Legal Update Pennsylvania Supreme Court Rejects Mumia's Appeal - U.S. Supreme Court to review critical case that could execute Mumia By Jeff Mackler and Laura Herrera, Co-coordinators On October 8, 2003, the Pennsylvania Supreme Court ruled against Mumia Abu-Jamal's appeal. Citing the "untimeliness" of the evidence presented relating to Mumia's innocence, the court refused to consider the confession of Arnold Beverly that he, not Mumia, murdered police officer Daniel Faulkner on December 9, 1981. Mumia, an award-winning investigative journalist, has been on Pennsylvania's death row since 1982 for a crime he did not commit. His struggle for freedom and justice is supported by the European Parliament, Amnesty International, the 1.8 million member California Labor Federation, the ILWU, Nelson Mandela, Ossie Davis, E.L. Doctorow, Alice Walker, Ed Asner, Jacques Chirac, the San Francisco and Detroit city councils and by millions of supporters of democratic rights worldwide. In rejecting the Beverly confession the court referred to the infamous July 19, 2001 memorandum of Federal District Judge William H. Yohn who ruled that "innocence is no defense." Yohn's decision also cited the need for "finality" as defined by several statutes as well as the reactionary 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA) that was approved by Congress to make state court murder convictions "effective," that is, implemented swiftly with severely limited recourse to federal appeal. Prior to the AEDPA some 40 percent of state court murder convictions were reversed on appeal. Grounds for reversal ranged from racist prosecution practices, exclusion of Black jurors, the use of falsified evidence, intimidation of witnesses, improper jury instructions and a myriad of other abuses that are commonplace in the U.S. criminal "justice" system. The Pennsylvania Supreme Court also dismissed the testimony of Philadelphia court stenographer, Terri Maurer Carter who overheard Mumia's original trial judge, Albert Sabo, state in his antechamber in relation to Mumia's case, "Yeah, and I'm going to help 'em fry the nigger." The Pennsylvania Supreme Court decision cited this quote from Carter's affidavit and was compelled to agree that this evidence WAS submitted in a timely manner. But it was nevertheless rejected as irrelevant. Said the court: "Even if appellant [Mumia] has raised this exception [referring to the "after-discovered evidence exception" of the law] in a timely manner, he is not entitled to relief, as the issue of judicial bias was previously litigated in appellant's first Post Conviction Relief Act proceeding, and was thoroughly addressed on its merits by this court in the ensuing appeal." The Pennsylvania Supreme Court therefore ruled that its previous 1998 ruling did deal with the issue of Judge Sabo's racism even though Sabo's statement, "I'm going to help 'em fry the nigger," was not presented to the court until August 2001, that is, three years later! The court's twisted logic held that the NEW evidence proving Sabo's racist bias amounted to a "reopening" of previous litigation. Pennsylvania courts have previously maneuvered to dismiss Carter's accusation against Judge Sabo, knowing that it was also heard by a prominent Philadelphia judge. When Judge Sabo's racist remark was originally litigated before Court of Common Pleas Judge Pamela Dembe, it was dismissed on the spurious grounds that "even if the statement were true," there is no proof that Judge Sabo [who had sentenced more people to execution than any sitting judge in the U.S., the vast majority Black] evidenced racist bias in his actual decisions during Mumia's trial." A final atrocity was committed by the Pennsylvania Supreme Court when one of its justices, Ronald Castille, refused to accede to a defense motion that he recuse himself from the case. Castille was part of the original Philadelphia prosecution team in Mumia's 1982 trial. Additionally, as Philadelphia District Attorney he had ordered the production of a secret video instructing Philadelphia prosecutors as to how to remove Blacks from jury panels. Castille's name and the State of Pennsylvania seal appear prominently on the now discredited video's introductory credits. Few expected justice to be done by Pennsylvania's top court, especially since all of its judges are members of the Fraternal Order of Police, the only organization in the United States that is actively campaigning for Mumia's execution. Mumia's case will now be returned to the U.S. Court of Appeals, Third Circuit, which had placed it on hold pending the Pennsylvania Supreme Court's decision. But today, the deliberations of the Third Circuit may take place in a new context, a context that could lead to the execution of Mumia Abu-Jamal and dozens of other Pennsylvania inmates. On September 30, 2003 the U.S. Supreme Court announced that it will review the 1983 case of George Banks whose murder conviction was recently reversed by the Third Circuit when it applied the well-known 1988 Supreme Court doctrine in the case of Mills v. Maryland. The court's Mills decision struck down a Maryland statute that required jurors to be unanimous before finding any mitigating circumstance that would allow for a sentence other than the death penalty. The Mills doctrine was applied with regard to Mumia's federal appeal when Federal District Court Judge William H. Yohn reversed Pennslyvania's order to execute him on the grounds that Judge Albert Sabo, in the sentencing part of Mumia's trial, improperly instructed the jury when he told them that a unanimous decision was required to find a mitigating circumstance for a sentence of life imprisonment as opposed to the death penalty. This was a partial victory for Mumia that Pennsylvania prosecutors, still seeking his execution, have appealed to the Third Circuit. Mumia's new legal team, today headed by death penalty specialist Robert R. Bryan, is currently preparing to appeal the remainder of Judge Yohn's decision that upheld Mumia's murder conviction. The decision of the U.S. Supreme Court to review the Mills doctrine that the Third Circuit applied in the Banks case to reverse an execution order, is ominous. The court could interpret Mills in a number of ways that could provide a "legal" basis for Mumia's execution, thus reopening the door to the issuance of a third warrant for his murder by lethal injection. The respected death penalty law analyst, Rick Halperin, writing in the Oct. 1 Legal Intelligencer noted that one outcome of a U.S. Supreme Court review of the Banks case and the Mills doctrine could hold that "the Pennsylvania Supreme Court did not engage in any "unreasonable" application of federal law when it rejected the [Banks] Mills claim." The substitution of a "reasonable" criteria for the present strict interpretation of Banks could give Pennsylvania prosecutors exactly what they have been looking for. "In urging the justices to take the case up," observes Halperin, "the [Pennsylvania] prosecutors argued that 'the federal courts in [the 3rd] Circuit have, through their Mills analysis of this once-standard instruction, effectively nullified every death penalty imposed in Pennsylvania before approximately 1989.'" A major modification of Mills could lead to the execution of 30 Pennsylvania inmates including Mumia Abu-Jamal. Along with the possible reactionary outcome of the Mills review there is an important additional development on the legal front that could have a positive impact on Mumia's struggle for freedom. A February 2003 U.S. Supreme Court decision in the Miller-El case appears to open the door wide to Mumia's new federal team to challenge the rulings of Judge Yohn when he refused to grant Mumia the "certificates of appealability" necessary to appeal the issues he presented to Yohn's federal district court, to the next level. The AEDPA was designed to severely restrict the right of habeus corpus, or federal review. Yohn granted only one such certificate to Mumia while affirming his conviction. He rejected another 27 constitutional and legal issues that Mumia originally presented. Yohn justified this decision by citing the AEDPA requirement that federal judges grant a "presumption of correctness" to the factual findings of state court judges, including Judge Albert Sabo. The Miller-El case substantially lowers this almost insurmountable standard. Robert R. Bryan told The Mobilization to Free Mumia Abu-Jamal that he plans to utilize Miller-El to reverse Yohn's exclusion of many critical constitutional and other issues that should have led to a reversal of his conviction and Mumia's freedom. Bryan has also made it clear that however important new legal developments are, Mumia's freedom rests in the capacity of a united movement to demand that justice be done. "It is within our power to reverse the great injury that has been done to an innocent man whose case is riddled with racism," said Bryan. "We must have the courage and determination to do so." The Mobilization to Free Mumia Abu-Jamal 298 Valencia Street, San Francisco, CA 94103 415-255-1085, Fax: 415-255-1082, alerts@freemumia.org 10-15-03 labor donated