Why We Can't Depend on the Federal Courts

By C. Clark Kissinger

Revolutionary Worker #928, October 19, 1997

Given the outrageous treatment that Mumia Abu-Jamal has received in the Pennsylvania courts, it is tempting to believe that his situation will greatly improve once he gets into the federal court system. This is a very dangerous illusion.

The belief that more justice can be found in the federal courts comes from an era now gone. In the 1960s, the federal government had foreign policy reasons for knocking down certain open forms of segregation and injustice in the United States. There was also an explosive people's movement that compelled many concessions.* But today the political leadership of the country pursues a campaign of "blame the victim" and strips away the most basic legal rights of those least able to defend themselves.

In April of 1996, the Congress passed into law the "Effective Death Penalty Act of 1996." The purpose of this law was to end the ability of federal courts to overturn death sentences handed down in state courts. The ability of the federal judicial system to examine and overturn fraudulent sentences imposed by state courts was developed in the two most important periods of progress for African-Americans in our history: The period of Reconstruction following the Civil War, and the Civil Rights Movement of the '60s that brought down Jim Crow laws. It was in these great battles that the right of federal courts to review state court actions was won, and the results have been important.

Over the last decade, approximately 35 percent of all death sentences appealed to the federal courts have been overturned, because the defendants have been able to prove that either their basic rights were denied or that the evidence proved their actual innocence. In short, many innocent people were being saved. The 1996 law was passed by Congress and signed into law by President Clinton to put an end to this. The "effect" of the "Effective Death Penalty Act" is to throw the federal court system back to the era of "state's rights" preceding the Civil War, when persons falsely convicted by state courts could not obtain relief in the federal courts.

First, under this new law prisoners sentenced to death have only 180 days after their state sentence is final in which to petition the federal courts. But what frequently happens is that new evidence concerning the alleged crime or police misconduct only comes to light years after the pronouncing of a death sentence. To put a 180-day appeal limit on the only sentence that is irreversible is to make sure that defendants are executed before they can even mount an appeal.

Second, the federal courts are now required to assume that findings of fact by the state courts are true. In the past, if a state court said that "the male Negro raped the white woman," the federal courts could look at the evidence and see if that was true or not. Now the federal courts are NOT supposed to look at the evidence and are to assume that whatever the state court said is true. The federal court can only question the "presumed correctness" of a state court if the defendant can "rebut the presumption of correctness by clear and convincing evidence."

Let's take a look at what this new requirement means. For a jury to find a defendant guilty in a criminal trial, they must unanimously find that he is guilty beyond a reasonable doubt. That is, if only one juror has serious doubts that he is definitely guilty, he cannot be convicted. This is a standard of judgment that favors the defendant. By contrast, for a jury to rule against a defendant in a civil law suit, a simple majority of the jury must find him wrong by the "preponderance of evidence." That is, the weight of the evidence must be tipped heavily against him, but need not be beyond a reasonable doubt. This standard of judgment is not weighted in favor of the defendant. But under the new Effective Death Penalty law, for a defendant to get a federal court to even look at the evidence in his case, he must have "clear and convincing evidence" that except for the errors committed in his state trial, "no reasonable fact finder would have found the applicant guilty." In other words, the defendant has to literally prove he is innocent first in order to get a hearing on the state court's denial of his rights. This standard of judgment is heavily weighted against the defendant, and is all but impossible to satisfy.

Take for example the frequent problem of incompetent counsel provided by state courts for defendants who don't have the money to hire good lawyers. Under the new law, you cannot get the federal court to order a new trial just by showing that your lawyer was incompetent, drunk, or even asleep during your trial. To get a new trial, you have to show by "clear and convincing evidence" that you would have been found innocent if you had had a good lawyer at your original trial. But how can anyone prove what might have happened in the past had the circumstances been different? Only a new trial can rectify the past denial of justice.

Third, even on issues of law (as opposed to the facts in the case), the federal courts are now instructed to accept errors by the state courts on the constitutional rights of defendants, so long as the errors are not "unreasonable."

Fourth, the new law makes it almost impossible to get more than one review by federal courts, and it requires that the lower federal court grant a "certificate of appealability" before the defendant can appeal to a higher federal court. (The prosecutor doesn't need any such "certificate of appealability" to appeal.) The federal district court is given only 180 days to rule on death penalty cases, and the federal court of appeals is given only 120 days to rule on any appeal. The goal is speed--not justice.

This new law applies to any appeal by Mumia into the federal courts. And while the U.S. Supreme Court has not yet ruled on the constitutionality of all its provisions, the trend in its rulings have been right in line with the new law. Over the last few years the U.S. Supreme Court has handed down a series of decisions on the death penalty that make it constitutional to execute minors and people who are mentally handicapped. People may remember President Clinton rushing back to Arkansas (where he was still Governor) during the 1992 presidential election campaign to sign the death warrant for a mentally handicapped prisoner.

Then in 1993 the U.S. Supreme Court handed down the infamous Herrera decision in which it ruled that it was constitutional for a state to execute an innocent person, so long as his trial had no legal errors! Here are the Court's own words: "Herrera's constitutional claim for relief based upon his newly discovered evidence of innocence must be evaluated in light of the previous 10 years of proceedings in this case. In criminal cases, the trial is the paramount event for determining the defendant's guilt or innocence. Where, as here, a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the constitutional presumption of innocence disappears. Federal courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution...Thus, claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings."

In other words, as long as the "proper procedures" were followed, the U.S. Supreme Court doesn't care if an innocent defendant is executed. Leonel Herrara was executed by the state of Texas on May 12, 1993.

THIS is the federal judicial system into which Mumia Abu-Jamal's case will go if his appeal before the Pennsylvania Supreme Court fails. This is why it has been so important to bring out the evidence in the state court proceedings, and why it is so important to step up the pressure on the government and its courts at all levels. This is a system that will never provide justice unless it is compelled to by massive resistance by the people.

Mumia's case can only be won by massive and international protest, just as the frame-up and threatened execution of the Scottsboro Boys was defeated in 1932. There is much work to be done, and we cannot be lulled into complacency by unfounded hopes. The danger is great, but the power of the people is greater.

* Editor's Note: Decisions in the Federal Courts in the 1960s can be understood in this context. The U.S. ruling class was faced with massive, militant struggle and as the pamphlet, "Cold Truth, Liberating Truth" points out: "They were faced with the danger that this struggle would continue to explode all out of control, especially as the Civil Rights movement gave way to a revolutionary Black Liberation movement in the late 1960s. And treating Black people in the U.S. as `second-class citizens' cut against the game they were running the Third World. In Africa, Asia, and elsewhere in the Third World, people were rising up against colonialism, and the rulers of the U.S. were fronting as `champions of freedom and democracy,' trying to sucker the struggling peoples of the Third World into accepting domination by U.S. imperialism in a new kind of colonialism."

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