Mumia Habeas Filing Exposes Injustice

Part 1:

by C. Clark Kissinger

Revolutionary Worker #1040, January 30, 2000

The United States, it is sometimes said, may be a society divided by extremes of inequality; it may have a history of racial oppression bred deep into the bone; it may be a place where everything is for sale to the highest bidder; but--and this, it is said, is the saving grace of the American system--it is a society in which all people, high or low, are guaranteed due process of law.

Those who believe this must now come to grips with the 29 claims of constitutional violations contained in Mumia Abu-Jamal's petition for habeas corpus that was filed last October. This petition was supplemented by the "memorandum of law" in support of those 29 claims, filed on December 7. There are more filings still to come, but even these initial papers show extreme violations of the principles laid down by the U.S. Constitution, as interpreted by the government's own Supreme Court over the years. They show beyond doubt that if the U.S. government and the state of Pennsylvania proceed with the legally sanctioned murder of Mumia Abu-Jamal, they will do so not only in the face of most people's standards of justice and humanity, but in contradiction of their own rules and claimed principles.

The memorandum of law is powerful. Activists and supporters of Mumia Abu-Jamal should get familiar with this document (available on many Mumia support internet sites) and learn how to bring out its key arguments to those who are only now awakening to the debate. Moreover, we must understand some of the key demands raised by the legal team and use our political exposure and mobilization to strengthen the battles being waged right now in court.

The Fraternal Order of Police, prosecutor Joe McGill, Maureen Faulkner, Vanity Fair magazine, Sam Donaldson--and right-wing hacks too numerous and tiresome to mention--all sound a single chorus. They howl that Mumia was found guilty and sentenced to die--so "let's get on with it." Then they selectively dip into the trial transcripts for the prosecution's most egregious distortions or fabrications, while conveniently leaving out every damning refutation marshaled by the defense.

But the defense memorandum convincingly shows that both Mumia's trial and his Post-Conviction Relief Act hearings were hopelessly contaminated. The outrages are legion and include: the coercion of witnesses; the suppression and fabrication of evidence; the denial of Mumia's right to represent himself, and/or to have an adequate legal defense, and even to be present during his own trial; a racially discriminatory jury selection; an outrageous manipulation of the penalty phase of the trial; and an appeals process so ludicrously biased that it resembles the court scenes in Alice in Wonderland--where the Queen of Hearts keeps yelling "Off with their heads!" The memorandum backs up each and every assertion with both the facts of the case and legal precedent established by the U.S. Supreme Court.

Getting Clear on the Question

When we get out there and explain the importance of this appeal to people, when we get out there and expose the lies of the Fraternal Order of Police and their friends, we need first of all to be clear on what the real question is. The question is not whether some journalist can rig up a few juicy quotes (from witnesses who made a deal with the state) or some out-of-court tall tales into a slick and slanted package that somehow does away with the need for a real trial. The question is not whether the Fraternal Order of Police can howl loudly enough to make people forget the sorry record of the Philadelphia police in witness coercion and evidence-tampering (which has resulted in scores of tainted convictions being overturned in Philly recently). And the question is not whether Maureen Faulkner's desire for "closure" can be made into an emotionally compelling sound bite.

The question is whether Mumia ever got anything remotely resembling a fair trial, and, if he didn't, then how the hell can his continued imprisonment, let alone his looming execution, be justified?

The December 7 memorandum of law shows, in great depth and detail, that Mumia did NOT get a fair trial. This in turn leads to other questions. Questions like: Why the rush to murder Mumia? Why the rush...and why the fear? Why the fear of finally allowing Mumia to defend himself, with attorneys of his own choosing? Why the fear of a trial in which the defense team would actually be able to hire ballistics and forensics experts, as they could not do in the first trial? Why the fear of subjecting the prosecution's ridiculous jerry-rigged case to a rigorous going-over by a competent defense team, with Mumia finally present at his own trial?

Why, indeed? If the federal courts fail to reverse Judge Sabo and the Pennsylvania Supreme Court, then the only possible explanation would be their desire to send a vicious political message and to remove, forever, a lifelong rebel against their system. Such a thing cannot be allowed to go down; such a verdict cannot stand.

This series will highlight some of the key assertions and arguments in the memorandum of law. First, though, I want to explain more deeply the critical importance of the federal district court proceedings, now looming as early as April.

The Evidence Must Be Heard!

As noted above, Mumia has filed a motion for a writ of habeas corpus. This means that he has asked the federal courts to overrule the decisions of the state court for violations of the U.S. Constitution. The federal district court has agreed to hear arguments on the habeas petition. Oral arguments may begin as early as April. If District Court Judge Yohn turns down Mumia's petition, then it is likely that Pennsylvania Governor Ridge will sign another death warrant. Mumia's attorneys would immediately file appeals at the Circuit Court of Appeals and then the Supreme Court, but--contrary to popular misunderstanding--neither of these courts is required by law to hear such appeals or to stay the death warrant. This should strongly bring home what's at stake in the upcoming district court action! We must all bend every effort for a massive show of support for Mumia going into those proceedings, while strengthening the movement for the challenges ahead of us.

As I have explained in previous articles, the "Antiterrorism and Effective Death Penalty Act of 1996" (AEDPA) severely limits the grounds on which prisoners can file for habeas corpus. Even so, the AEDPA still provides that claims of habeas can be granted in cases where the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" [emphasis added, cited on p. 3 of Memorandum of Law in Support of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2254--the memorandum filed for Mumia on December 7]. For all of Mumia's 29 claims, the memorandum sets forth Supreme Court precedents and rules that the state courts violated in one way or another.

The AEDPA provides a second basis for granting habeas. Habeas must be granted when the state court decision is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding" [emphasis added, 28 U.S.C. 2254 (d)(2), cited in the Memorandum, p. 6]. The AEDPA loads the dice on this, though, by saying that the federal courts must presume the state court finding of fact to be correct unless the defendant can provide "clear and convincing evidence" to the contrary. Many of Mumia's claims focus precisely on Judge Sabo's "unreasonable determination of the facts." Indeed, Judge Sabo's entire conduct of the trial and PCRA proceedings was so outrageously biased against Mumia, that Mumia's attorneys are challenging the entire state court fact-finding process. In addition, they intend to file another motion for an evidentiary hearing.

Here is the crucial point in all this. Unless Judge Yohn either sets aside the entire state court fact-finding process, or grants an evidentiary hearing on some of the particular claims being raised by Mumia then the state fact-finding record will be allowed to stand as is for the entire rest of the process. This means two things. First, all of the phony evidence entered by the prosecution (the phony confession, the false "eyewitness" testimony, and so on) will be allowed to stand as if it were true. Second, all the new evidence found by Mumia's legal team, but kept out of the record by Judge Sabo, will never be heard.

So if Judge Yohn does NOT throw out Sabo's fact-finding altogether, and if he does NOT grant an evidentiary hearing, this will mean many bad things for Mumia's case. . . and for justice. This will mean that the testimony of Veronica Jones--which clearly established how the police attempted to coerce and bribe witnesses--will be ignored. This will mean that Faulkner's partner Gary Bell--who "suddenly remembered" a confession from Mumia more than two months after the shootout in which Faulkner died--will never be questioned by Mumia's legal team, and thus his credibility will never be examined. (Sabo quashed a subpoena to Bell during the PCRA hearings.) This will mean that crucial testimony about how the jury proceedings were tainted will never even get heard. (Again, Sabo quashed relevant subpoenas on this point during the PCRA hearings). And this will also mean that evidence on political surveillance conducted by the Philadelphia police department against Mumia--which would include possible evidence of long-standing political hostility to him--will never come to light. (Again, Sabo denied a defense motion for records of such surveillance.)

In all, the memorandum lists five criteria for an evidentiary hearing that have been agreed on by the Supreme Court and that all apply to Mumia's case. First, Sabo simply refused to address certain factual issues, often deciding for himself that a witness wasn't credible. Second, Sabo's fact-finding was often "insufficiently historical, specific, considered and comprehensive." Third, and very important, some of the most important claims in Mumia's petition rest on facts which could not be brought out in the PCRA hearings, because Sabo quashed subpoenas, disallowed evidence that was presented, and refused discovery motions. Fourth, Sabo's blatant hostility towards Mumia and even his lawyers "infected the entire fact-finding process, rendering the PCRA proceedings a sham" [memorandum, p. 12]. And finally, Sabo often found as "facts" assertions that were utterly unsupported as evidence.

If Judge Yohn says no to these motions, then this evidence and much more besides will never be heard at any other legal level. So we have to be very clear on the stakes here: in order for there to be even an ounce of justice in this case, THE EVIDENCE MUST BE HEARD!

This article is posted in English and Spanish on Revolutionary Worker Online
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