Judge Refuses Amicus Briefs in Mumia Appeal

The People Must Be Heard

By C. Clark Kissinger

Revolutionary Worker #1074, October 15, 2000

Justice is too important to be left up to judges. That was proven on August 7, 2000, when Federal District Judge William H. Yohn refused to accept all the "amicus" briefs in the case of Mumia Abu-Jamal.

Amicus briefs are legal arguments filed by people or organizations who are not directly involved in a case, but who have an interest in the outcome of a case. Four different amicus briefs have now been submitted to the federal court in support of Mumia's demand to have his Pennsylvania conviction and death sentence overturned.

The four amicus briefs were submitted by the ACLU of Pennsylvania and the NAACP of Philadelphia; the National Lawyer's Guild together with five other legal organizations; 22 members of the British parliament; and the Chicana/ Chicano Studies Foundation.

These briefs join the tens of thousands of letters and petitions that have poured in from around the world, the full-page ads in the New York Times, the concerts and CDs produced by dozens of artists, the outpourings in the streets, the hundreds arrested in civil disobedience, the scathing report from Amnesty International, the resolutions by labor unions, and the visits to Mumia by world famous figures. They demonstrate the broad and intense concern around the world in stopping the execution of Mumia-and how the injustices in Mumia's case deeply affect the lives of millions.

That a federal judge would refuse to even receive these arguments is outrageous and unacceptable. In capital cases, the court is expected to hear any evidence or arguments that can aid the defendant. What does it say about the legal system in this country if such arguments cannot even be considered?

Judge Yohn admits that there is no law, court rule, or precedent from a higher court that defines when a federal district judge should reject amicus briefs. Even the Pennsylvania Supreme Court, which is packed with justices supported by the Fraternal Order of Police, accepted an amicus brief in Mumia's case.

Citing the rules for amicus briefs used by the federal court of appeals (which don't apply to the federal district courts) as a guideline, Judge Yohn declares that the amicus briefs are "unnecessary," and "unhelpful" in that they would impose an additional burden on the court. Let's get real here. A man's life is at stake, and the judge is saying that it's too much burden to read another couple briefs? "Unhelpful to whom?" is the real question. They are certainly not unhelpful to Mumia, as the court well knows, and the people must demand that the court accept them.

The Revolutionary Worker has already written extensively about the contents of Mumia's habeas petition and legal memoranda submitted in support of it. These documents paint a compelling picture of the key legal issues at the heart of Mumia's appeal for justice: the ineffectiveness of his court-appointed counsel; the refusal to allow him to defend himself; the gross misconduct of the prosecution in withholding evidence and inducing witnesses to change their stories; and the racist manipulation of the jury selection process. These issues are both at the heart of Mumia's case, and at the heart of the national debate on the death penalty itself.

Amicus Briefs Defend Basic Rights

The amicus briefs expand on some of these key issues raised in Mumia's habeas petition. They introduce the issue of John Africa being barred from the defense table as an advisor, and they come at some of the original 29 points in Mumia's habeas petition from new angles. The issues of basic rights that they raise are important not only to Mumia, but to the rights of everyone. The two newest amicus briefs have been singled out by Mumia for special attention. "The briefs are more than a procedural or case history," he writes. "They are history lessons about fundamental human rights that were violated by the state with impunity."

A major issue in the media attacks on Mumia has been his alleged disruption and manipulation of his original trial in 1982. A central theme and great strength of the two newest amicus briefs is the manner in which they expose exactly who did, and who did not, manipulate the trial.

The first of these new briefs was filed by 22 members of the British Parliament. This brief builds on a 1975 Supreme Court decision that reaffirmed in striking language the almost absolute right of a defendant in a criminal case to conduct his or her own defense. The U.S. Supreme Court declared that a court cannot impose a defense lawyer on the defendant.

Yet this is exactly what happened in Mumia's case. One of Mumia's strongest arguments for a new trial is the fact that he was removed from acting as his own attorney-and had an attorney he did not want imposed on him. Consequently, this was a major issue raised in his habeas petition, and it was also the major theme of his petition for a writ of certiorari filed with the U.S. Supreme Court in 1999.

The key issue raised in the amicus brief filed by the 22 British MPs is Mumia's request to have John Africa sit at the defense table to advise and assist him in conducting his own defense. Without assistance of someone not employed by the government and in whom the defendant has trust, the defendant sits alone facing the whole power of the state. Having an advisor at the defense table is a common practice in Pennsylvania and elsewhere. But Judge Sabo ruled that the only advisor Mumia could have was a court-appointed attorney named Anthony Jackson, and eventually he removed Mumia from defending himself entirely.

The last amicus brief, filed by the Chicana/Chicano Studies Foundation, goes right to the heart of the government's plot to keep Mumia from defending himself. Given the fact that the right to defend oneself is almost absolute under U.S. law, the government basically had to remove Mumia from the courtroom in order to prevent him from defending himself.

The possibility of Mumia being removed from the courtroom was first raised by the prosecutor Joseph McGill on June 2, 1982. Next Mumia was removed from questioning the prospective jurors on June 9, at the request of prosecutor McGill. Then on the first day of the trial, June 17, Mumia renewed his request to have John Africa at the defense table to assist him. After a lengthy discussion of the issue, Judge Sabo suddenly announced that he was removing Mumia from acting as his own attorney and assigning Anthony Jackson, the court-appointed back-up counsel, to conduct the defense.

The Meeting Behind Closed Doors

The most important contribution of the last amicus brief is to focus attention on a closed meeting in Judge Sabo's chambers that occurred the next morning on June 18. This discussion between Judge Sabo, prosecutor McGill, and defense attorney Jackson dealt with how to keep the trial from being overturned on appeal if Mumia refused to put on a defense or cooperate with Jackson. Mumia, having been removed from acting as his own attorney, was not present and had no idea what was going on. In fact, he never saw the transcript of this shocking meeting until after his sham trial was over.

The transcript of this secretive meeting shows Sabo saying, "Suppose he does something that I have to eject him from the courtroom, because I'm not going to bind him.... Then you're by yourself [referring to Jackson] and then you have to make a decision." Jackson replies, "Yes, sir."

The discussion goes on, and Sabo brings up the example of the 1979 MOVE 9 trial. In this trial, the defendants were removed from the courtroom and their lawyers were ordered to conduct their defense over the objections of the defendants.

When the trial resumed that afternoon, Mumia raises once again his need to have the assistance of John Africa at his table. Sabo removes the jury from the room, and says: "Mr. Jamal, you have interrupted these proceedings for the last time. The Court is ordering the sheriff to remove him [Mumia] from the courtroom. We'll proceed in your absence."

By focussing on these closed door discussions, this amicus brief highlights how Mumia's right to defend himself was deliberately violated.

The last amicus brief also expands on the point in Mumia's habeas petition that, in this same meeting between Sabo, McGill, and Jackson, a decision was made to remove the only juror selected by Mumia while he was still allowed to question prospective jurors, and replace her with a white alternate juror who had openly stated that he didn't think he could be fair in the case. This alternate then became the foreman of the jury that convicted Mumia and sentenced him to death.

These are just some of the arguments that the new amicus briefs bring to the court, and it is an outrage that the court now refuses to read them.

Information on this appeal and all the legal documents referred to in this article can be found on the internet at www.refuseandresist.org/mumia/court.html. For information on the mobilization for Mumia's appearance in federal court, check with your local coalition or on the internet at www.j4mumia.org.

This article is posted in English and Spanish on Revolutionary Worker Online
Write: Box 3486, Merchandise Mart, Chicago, IL 60654
Phone: 773-227-4066 Fax: 773-227-4497
(The RW Online does not currently communicate via email.)