What's Next in the Courts for Mumia Abu-Jamal

by C. Clark Kissinger

Revolutionary Worker #957, May 17, 1998

"This standard is met if the petitioner can demonstrate either: (1) that the proceedings resulting in the petitioner's conviction were so unfair that a miscarriage of justice occurred which no civilized society can tolerate; or (2) that the petitioner is innocent of the crimes charged."

from Rule 1507 of the
Criminal Procedural Rules of the
State of Pennsylvania

Protests continue while we await the final decision of the Pennsylvania Supreme Court. But many people are asking "what comes next," and rightly so. This court ruling will represent a major turning point in the legal battle for justice for Mumia Abu-Jamal.

What follows is an outline of what will likely take place in the legal arena following the decision by the Pennsylvania Supreme Court. It is not possible to predict the course of events with complete accuracy for three reasons. First, this case has come to concentrate a major political struggle in society over the whole reactionary agenda emphasizing police powers and speeded-up executions. Second, the courts have many different options in fixing the outcome at each stage. Third, there are tactical decisions that will have to be made by Mumia and his legal defense team at each step along the way.

But neither is the legal terrain totally unknowable. There are laws, procedures and precedents which the state currently observes to some degree because many of its supporters believe in "the rule of law," and their continued faith in the system is important to the state.

The Pennsylvania Supreme Court

What is before this court is an appeal of Judge Sabo's refusal to grant a new trial. There are at least five ways the court can rule: First, they could find the Post Conviction Relief Act (PCRA) hearings before Judge Sabo to have been so flawed by his conduct that they send the case back to the trial court level for a whole new hearing on the motion for a new trial. (Judge Sabo has now been forcibly retired, so this hearing would be before a new judge.) Second, the court could find that the entire case against Mumia is so flawed by prosecutorial and judicial misconduct that they order Mumia freed and the charges against him dropped. Third, they can find that the prosecution of Mumia was sufficiently flawed to require a new trial, and the case would be sent back to the trial court (again, not before Sabo). Fourth, they could find that only the sentencing portion of Mumia's original trial was flawed, and send the case back to the trial court level for a new sentencing hearing. In this case, Mumia's "guilt" would be taken as established fact, and a new jury would be empanelled to decide between life in prison and execution. Fifth, the court could rule that Mumia's case has no merit and deny his appeal for a new trial.

Pennsylvania's Supreme Court is more "politically driven" than most. Its justices are elected in partisan elections, and some receive official endorsements from the same police organizations that are campaigning for Mumia's death. But since the case against Mumia is so weak, it is possible that a decision may be made to resolve it at the state level. This would avoid having to have the federal courts overrule the state court, and thus preserve a major point of the current reactionary agenda: giving state governments the final say on executions. Still, many observers expect the Pennsylvania high court to deny Mumia's appeal. If it does, the court will then issue within 60 days an official order called a "mandate."

The Governor and a Death Warrant

Because former Governor Casey held off on signing death warrants for Mumia and a number of other death row inmates, the Pennsylvania state legislature changed the law to require the governor to sign a death warrant within 30 days that sets a death date within 60 days. Of course Governor Tom Ridge requires no such legal prodding. He has promised to sign a death warrant for Mumia as soon as the Pennsylvania Supreme Court rules. The death warrant is an order to the prison authorities to carry out the execution. But under the new law, even if Ridge fails to sign the warrant, the head of the Department of Corrections is now empowered to carry out the execution anyway without a warrant. Executions have become administrative functions of the prison authorities. The Governor's right to delay for a more careful look at the case has been eliminated.

In order to stop any scheduled execution, Mumia's legal team will be compelled to file documents with the federal courts very quickly to obtain a stay of the execution order. Under the federal habeas corpus law, this stay is mandatory. That is, the federal court must grant a stay of execution while it considers Mumia's federal appeal.

Here it is important to say a few things about a death warrant. First, even though the issuance of a death warrant will be followed within a week or two by a federal court order staying the execution, a stay is nothing but a temporary postponement. The signing of this death warrant would be a major turning point in Mumia's case. It would signal that a political decision has been made to push ahead with Mumia's execution. The decision of the state of Pennsylvania to execute Mumia will have been finalized, and all the new evidence brought forward in the various hearings since 1995 will have been officially rejected. This must be met with massive and international protests. Second, this will be a moment when Mumia's case is back in the media and public consciousness, and we must make every effort to keep it there. Third, it means that Mumia's case would now be into the federal courts with their new political agenda of speeded-up appeals and swift executions.

Mumia's case spent 17 years in the state courts. That will not be the case in federal courts. In the new "rush to execution" climate, Mumia's appeals in the federal courts will be acted on in months (not years) at each stage.

The "Effective Death Penalty Act"

In April of 1996, the Congress passed and President Clinton signed into law the "Anti-Terrorism and Effective Death Penalty Act of 1996" (EDPA). This law was pushed through in the hysterical atmosphere following the bombing of the federal building in Oklahoma City. One purpose of this law is to severely restrict the ability of federal courts to overturn death sentences handed down in state courts. The effect of the "habeas corpus reform" contained in this new law is to throw the U.S. judicial system back to the era of "states' rights," where federal courts did not interfere with judicial misconduct by the states. It was the mass protests of the 1960s Civil Rights Movement that finally compelled the federal courts to step in and put an end to "cracker justice" in the South. The 1996 legislation restores cracker justice, north and south alike.

The "problem" the new habeas corpus law is meant to correct is that since 1977 the federal courts have overturned approximately 35 percent of all death sentences handed down by state courts, usually for flagrant violations of the defendants' rights. If it were not for this extra review process, there would be over 5,000 people on death row today.

A motion for habeas corpus (Latin for "let's have the body") in English common law was an appeal to a court to review whether the King's detention of somebody was legal. In granting the motion, the court told the King's sheriff to "bring the body" into court and justify why you are holding him. This concept developed into a general mechanism by which federal courts are asked to review criminal convictions by state courts. What it means in practice is that state governments do not have an absolute right to take away a person's freedom or life.

Some of the vicious new provisions of the 1996 law apply to Mumia's case and some do not. One provision of the new law limits prisoners to a single federal habeas corpus motion that must be filed within six months in death penalty cases. In Mumia's case, this is not an issue at this point, because this will be his first federal habeas motion, and he will have to file for it quickly in order to obtain a stay of the death warrant.

Another aspect of the new federal law is to offer the states a real "devil's bargain." The new law offers to set strict time limits for (i.e. speed up) appeals of death sentences coming from any state that has also acted to speed up its own state appeals process. It's like the government saying "We'll give you more highway money if you keep the speed limit at 55." Only here they are saying, "If you will rush death penalty cases through your state court, we'll rush them through the federal courts." These federal speed-up provisions require the federal district courts to decide on habeas petitions within 120 days, and give the federal Court of Appeals only 120 days to review the district court's decision. Death was to be on the fast track.

Pennsylvania, like many other states, quickly passed new laws changing its appeals process in order to get in on this "deal" with the federal government. These new strict time limits were the prospect facing Mumia in the federal courts. However, quite unexpectedly, the Pennsylvania Supreme Court got into a snit and struck down the new Pennsylvania law in August of 1997, ruling that the state constitution gives the state Supreme Court alone the power to establish appeals procedures in the state courts.

Thus for the moment the new horrendous time limits do not apply to Mumia's case in the federal courts. But this does not mean the case will be dragged out over a long period of years. As mentioned above, its progress in the federal courts will be measured in months at each stage. Also the current political climate is one of swift, and ugly, changes in all legal procedures concerning evidence admissibility, constitutional safeguards, sentencing, and appeals procedures. The action of the Pennsylvania Supreme Court in knocking down the speeded-up procedures may itself be "reconsidered."

The Effects of EDPA on Mumia's Case

The parts of the new federal law which restrict how the federal courts review cases appealed from the state courts DO apply to Mumia's case. They require the federal courts to assume that findings of fact by the state courts are true. In the past, the federal courts conducted a new and independent examination of the facts in the case. Now the federal courts are NOT supposed to reassess the evidence. They are to presume whatever the state court found to be true. This turns the whole process around. It puts the burden on the prisoner to prove he is clearly innocent, rather than the state having to prove he is guilty beyond a reasonable doubt.

Let's be clear on what this means. It means that all the new evidence that was presented in the three PCRA hearings is out--not to be considered by the federal courts--because Judge Sabo found that it was not credible. It means that Veronica Jones' coming forward and recanting her false testimony at Mumia's trial is not to be considered. It means that Pamela Jenkins' testimony on how police coerced witnesses is out. It means that the testimony of William Singletary, an eyewitness who testified that Mumia was not the shooter, is not to be considered. It means that the new information on Robert Chobert, who was allowed to drive a cab for 10 years without a license in return for changing his testimony, is to be forgotten. It means that Cynthia White is presumed dead because Judge Sabo said she is. It means that the fairy tale about witnesses suddenly "remembering" two months after the fact that Mumia made a public confession the night of the shooting is to be accepted as true, and the testimony of the emergency room personnel to the contrary is to be ignored. It means that all of Judge Sabo's refusals to subpoena key documents and testimony are O.K.

Even on issues of law (as opposed to the facts in the case), the federal courts are now instructed to accept errors made by the state courts on the constitutional rights of defendants, so long as the errors are not "unreasonable"! One can only wonder what a "reasonable" constitutional error is when a man's life is at stake.

The Path Through the Federal Courts

Any motion for habeas corpus would be heard by the federal district court in Philadelphia. One of the judges in this court is the wife of Ed Rendell, Philadelphia's mayor and former D.A. (Small world, isn't it?) In the federal district court, Mumia's legal team would most likely file motions for discovery (seeking to get at the evidence that Judge Sabo suppressed) and for an evidentiary hearing. These motions would be "briefed," that is, there would be written arguments by both Mumia's legal team and the state of Pennsylvania. All this would take some time, but the court would set deadlines for the briefs that are measured in days, not in months. If the motions are granted, this would take more time. But again, just because there are not fixed deadlines doesn't mean that this process will go slowly.

There are several ways the federal district court could rule on the habeas motion, just as the Pennsylvania Supreme Court had a number of options. One thing that it could do is to put Mumia's appeal "on hold" and send it back to the state courts. The federal court cannot accept Mumia's appeal until all state remedies have been exhausted. Since Sabo refused to hear certain evidence, the federal court could say that the state remedies have not been exhausted, and send it back to the state courts to hear this evidence. This would be in keeping with the new federal policy of having state courts do all the hearing of evidence. Then, after such hearings, the case would bounce back to federal court to rule on the habeas motion.

Besides the route of a federal habeas corpus motion, Mumia also has the option of seeking a "writ of certiorari" from the U.S. Supreme Court. A motion for "cert" is different from a habeas motion. It is not asking the court to hear new evidence, but to simply look at the written record and rule on some particular points of law--usually federally protected rights. While the Supreme Court normally grants a stay while such motions are being considered, these motions are routinely denied by the U.S. Supreme Court without oral arguments. Only occasionally will the Supreme Court hear such a case when an important issue of law is involved.

If the federal district court turns down Mumia's habeas appeal, the next step is the federal 3rd Circuit Court of Appeals, a court that also sits in Philadelphia. The federal court of appeals normally hears cases with a panel of three judges. They may or may not allow oral arguments, but they will mainly review the record of the federal district court proceedings. If the ruling by these three judges is negative, Mumia can then petition to have a panel consisting of all judges of the 3rd Circuit Court hear the case. Such requests are not frequently granted, but the request itself will take some time to rule on.

At this point it should be evident that there is going to be a lot of action in Philadelphia over the next year or two, and that city remains an important focus for the political campaign for justice for Mumia. And just to add some spice to the mix, it should be noted that Philadelphia is one of the cities bidding for the Democratic Party National Convention in the year 2000.

The final stop in the federal appeals process is the U.S. Supreme Court. The Supreme Court accepts very few death penalty cases for review--usually only those that present new questions of law, or those involving conflicting rulings by different circuit courts of appeal. However, one thing to watch is how the Supreme Court rules on the constitutionality of the "Effective Death Penalty Act." There could be some old-fashioned contradictions between the Supreme Court and the Congress over whether Congress has the power to restrict the appeals process. But in general we have to say that the political leaders of both major parties are united around expanding and speeding up the death penalty.

The entire federal judiciary is now packed with conservative judges from the Reagan-Bush-Clinton presidencies. The trend has been to rubber-stamp the decisions of state courts, and speed up executions. The ruling elites in this country have a political agenda that revolves around more police, more prisons, and more use of the death penalty. Freeing a Black revolutionary writer who was convicted of killing a police officer goes right up against that agenda. That is why the case of Mumia Abu-Jamal has become such a major issue in society. There is a great deal at stake for both sides. For them, the issue is so important that they find it preferable to execute a few innocent people than to contribute to any vacillations about the need for the expanded death penalty. This was the meaning of the infamous 1993 Herrera decision that ruled states could execute prisoners who were actually innocent as long as the state courts did not violate constitutionally protected procedures. (See my article on "Why We Can't Depend on the Federal Courts"--RW #928, October 19, 1997)

In Conclusion

Even if Mumia were to lose his current appeal before the Pennsylvania Supreme Court, and be denied justice in the subsequent federal appeals up through the U.S. Supreme Court, Pennsylvania state law does allow for yet another PCRA hearing for a motion for a new trial. This brings us back to the quotation at the beginning of this article. That section from the Pennsylvania rules of criminal procedures, which sets out the criteria for a second PCRA appeal, is rather ironic. If ever there was a case so unfair that a miscarriage of justice occurred which no civilized society can tolerate it has been in the case of Mumia Abu-Jamal. The fact that something so simple as a fair and an honest hearing of the facts, before a court that is not out to kill Mumia for political reasons, has been so utterly unattainable should remind us every day of the nature of the system we are up against.

In conclusion I want to stress that what is discussed here is the legal aspect of our struggle. It is a critical arena for this struggle, but it is also their arena, run by their rules. The people are going to fight in that arena, but we also have a broader arena where WE set some of the rules. It is very important that we not ignore the critical moment when the Pennsylvania Supreme Court rules, and think "Oh, it doesn't mean much, there's going to be a stay and more appeals." On the contrary, a negative decision would signal a political decision to go for Mumia's execution, and he will immediately be into the speeded up federal execution mill. Right now the Pennsylvania Supreme Court is gauging just how much injustice they think they can get away with. We have to create a public response which causes the court to feel their only option is to find a legal pretext for backing off from the execution of our brother Mumia Abu-Jamal. And we must be prepared to take the struggle to a whole new level if they rule against him.

Instructions for sending tax-deductible contributions for Mumia's legal defense:

1) Make check payable to "Black United Fund/Mumia Abu-Jamal," earmark it for "legal defense," and mail to Black United Fund, 2227 N. Broad Street, Philadelphia, PA 19132 or
2) Make check payable to "Bill of Rights Foundation," earmark it for "Mumia Abu-Jamal legal defense," and mail to Committee to Save Mumia Abu-Jamal, 163 Amsterdam Ave., No. 115, New York, NY 10023-5001.

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