[antiwar-van] US Supreme Court rejected Mumia Abu-Jamal's appeal for a new guilt-phase trial

[aliyerevani]

Date: Mon, Apr 6, 2009 at 9:38 PM
Subject: Supreme Court Rejects Mumia's Appeal; Mumia's Response

This page will continue to be updated with new developments. Please
help spread the word!

http://www.phillyimc.org/en/us-supreme-court-rejects-mumia-abu-jamals-appeal-new-guilt-phase-trial

Mumia's response available at Prison Radio:
http://www.prisonradio.org/mumia_interview_4_6_09.htm

Today, the US Supreme Court rejected Mumia Abu-Jamal's appeal for a
new guilt-phase trial. The Supreme Court has not yet decided whether
to consider the Philadelphia DA's separate appeal, which is attempting
to execute Abu-Jamal WITHOUT a new sentencing hearing.

In response to today's rejection, Abu-Jamal's lead attorney Robert R.
Bryan will be filing a "petition for re-hearing" at the US Supreme
Court.

Please contact the White House to protest this unjust ruling:   202/456-1111

http://www.whitehouse.gov/CONTACT/

As reported this morning by CNN, Reuters, AP, and others, the US
Supreme Court announced today that they have rejected death-row
journalist Mumia Abu-Jamal's appeal for a new guilt phase trial (in
official legal terms, they rejected his petition for a "writ of
certiorari"). Abu-Jamal's appeal was based primarily on the US Supreme
Court's 1986 "Batson v Kentucky" ruling which stated that a defendant
deserves a new trial if it can be shown that the prosecutor used
peremptory strikes to remove otherwise qualified jurors simply because
of their race. At Abu-Jamal's 1982 trial, prosecutor Joseph McGill
used 10 or 11 of his 15 strikes to remove otherwise acceptable black
jurors.

The US Supreme Court has not yet decided whether it will further
consider the Philadelphia DA's appeal of the 2001/2008 rulings of two
lower courts, which ruled that Abu-Jamal deserves a new sentencing
hearing if the death penalty is to be re-instated. Therefore, if the
US Supreme Court rules in favor of the DA, Abu-Jamal can then be
executed WITHOUT a new sentencing hearing!

J. Patrick O'Connor, author of The Framing of Mumia Abu-Jamal,
responded to today's decision by telling me (direct quote below):

The U.S. Supreme Court's refusal to grant Mumia's request for a writ
of Certiorari is incredibly surprising to me because it only takes
four justices to grant the writ. Granting the writ would have allowed
Mumia's Batson claim of racism in jury selection to be brought before
the entire court for consideration. Why I'm so surprised is that last
year, in a 7-2 decision, the Supreme Court expanded Batson to order a
new trial if the prosecution excluded just one potential juror on the
basis of race. The prosecutor at Mumia's trial has stipulated he used
10 of his 15 peremptory challenges to exclude otherwise qualified
black jurors. This high strike rate (66.6 percent) is itself a prima
facie indication of racism. Denying Mumia's request for the writ cuts
off any possible avenue of legal relief for Mumia. The Supreme Court
was his last chance for judicial justice. Barring clemency by a future
governor of Pennsylvania, the Supreme Court has incomprehensively
condemned Mumia to spend the rest of his life in prison. **(END OF
QUOTE)

--------------------------------------------------

Dave Lindorff, author of the 2003 book Killing Time: An Investigation
into the Death Row Case of Mumia Abu-Jamal responded this morning to
the ruling by telling me (direct quote below):

Once again, a court, in this case the highest court in the land, the
US Supreme Court, has created what Philadelphia journalist and legal
expert Linn Washington has dubbed "The Mumia Exception"--that is to
say a precedent that applies only to one person: Mumia Abu-Jamal. The
decision in this case, which involved the high court's refusal to
consider and reverse last year's Third Circuit Court of Appeals ruling
rejecting Abu-Jamal's claim that his jury was unconstitutionally
purged of qualified black jurors by the prosecution's use of
peremptory challenges to remove 10 or 11 blacks from the panel, was
particularly offensive since it was Justice Samuel Alito, at the time
a member of the Third Circuit Court, who wrote an opinion stating that
if even one potential juror is removed from a panel for reasons of
race or religion, that trial's verdict is fatally flawed and must be
overturned. Alito's opinion in that case was soundly reasoned and
important, but apparently now, in his exalted position as Supreme
Court Justice, Alito thinks the precedent needn't apply to Abu-Jamal.

    By simply not hearing Abu-Jamal's case, the Supreme Court, which
itself has also already established the precedent that the tainting of
a jury by even one racially motivated removal of a juror, has left
intact its precedent on this issue, while at the same time leaving
Abu-Jamal outside its protection. This is a shameful act of political
cowardice on the part of all 9 justices and a betrayal of the
fundamental promise of "equal justice under the law."

    It is almost a certainty that the Third Circuit will revisit this
issue on another death penalty case, and that it will re-affirm the
precedent, already in place in the Third Circuit, that any racial
motive in purging a juror cannot be tolerated. Then we well be left
with the Mumia Exception again, where laws are temporarily suspended
to keep this one man on death row, or in jail all his life.

    The media reports on the court's latest decision in this case have
all gotten it wrong. The court was not ruling that there was "no bias"
in his jury, which was composed of two blacks and 10 whites. What the
court was refusing to do was hear his appeal of a 2-1 Third Circuit
opinion that Abu-Jamal had not objected soon enough or with adequate
evidence to what he claimed was a concerted effort by Prosecutor
Joseph McGill to remove over 10 qualified potential black jurors from
his jury.

     In a stinging minority opinion, Appellate Judge Thomas Ambro had
criticized his two fellow jurists, asking why, for this one
petitioner, they were raising the bar for demonstrating evidence of
race-based jury selection, insisting that Abu-Jamal should have
protested the removal of black jurors at the time it happened, despite
the fact that it was only five years later that such actions were even
found to be unconstitutional. He also asked why his two colleagues
were ignoring the precedents of both the Supreme Court and the Third
Circuit. As Judge Ambro wrote in his dissent: "The Supreme Court has
never announced a rule requiring a contemporaneous objection...and I
see no reason for us to do so now." He also wrote, "The US Third
Circuit Court's own history bears witness against the use of a
contemporary objection rule, signalling that our Circuit does not have
a federal contemporaneous objection rule---and I see no reason why we
should not afford Abu-Jamal the courtesy of our precedents."

    Judge Ambro's indictment of his two fellow judges now hangs over
the reeking air of the Supreme Court Building in Washington, where
placating the politically powerful police union and the right-wing
death is seen to be more important than dispensing justice.

    The Supreme Court did not rule on the appeal by the Philadelphia
District Attorney of a federal district court's overturning of his
death penalty. The High Court could still reverse that ruling, which
would leave Abu-Jamal facing death with no more avenue of appeal.
Alternatively, if the High Court were to leave standing the Third
Circuit's unanimous decision supporting the district court's
overturning of the death penalty, the DA could ask for a new trial on
the penalty alone, in an effort to convince a new jury to reimpose a
death sentence.

     If the DA were not to seek a new penalty phase trial, Abu Jamal
would face life in prison with no possibility of parole, and no more
avenue of appeal of his sentence.

Philadelphia District Attorney Lynn Abraham, in a graphic illustration
of the ugly politics that surround and continue to pollute this case,
immediately grabbed the news of the Supreme Court's decision as an
opportunity to trumpet her own bloodthirsty credentials as a
government execution-monger. Calling Abu-Jamal "nothing short of an
assassin," Abraham once again repeated a fundamental lie of the
Abu-Jamal death squad--that he was somehow gunning for Officer
Faulkner as a rabid cop-hating Black Power advocate.

In fact, the prosecution never even attempted to make such a case.
Even if one were to accept the story line created by Prosecutor Joe
McGill for the jury at the trial at face value, with all the tortured
and falsified testimony of prosecution witnesses, it was that
Abu-Jamal, who happened to be at the scene of an altercation between
his brother and Faulkner, came to his brother's aid and ended up
shooting Faulkner. There was never any claim of premeditation or
planning. which is part of the definition of an "assassination."  As
always, Abraham and her ilk keep attempting to portray Abu-Jamal not
just as a killer of a police officer, but rather as a
coldly-calculating political assassin bent on attacking not just
Faulkner, but all cops.**(END OF QUOTE)

--------------------------------------------

Responding to today’s news, Michael Schiffmann, co-founder of
Journalists for Mumia, and German author of the book Race Against
Death. Mumia Abu-Jamal: a Black Revolutionary in White America, writes
that (direct quote below):

 According to a new CNN report, the US Supreme Court has turned down
Mumia Abu-Jamal's petition for writ of certiorari, aiming to open the
way for a new trial, as usual without giving a reason, while the court
has still taken no decision on the prosecution's petition for writ of
certiorari, which aims at reinstituting the death penalty against
Mumia, which was thrown out by a federal court on December 18, 2001.

If true, as it appears to be, this report marks one of the darkest
days in the history of the US judicial system. An innocent prisoner
who was consecutively framed by the police, the prosecution, and a
whole succession of courts has apparently just been denied the very
least he can demand: not even a new trial, but a hearing about a new
trial.

At the same time, this seems to mean that Mumia is in greater danger
to be executed than ever before.

The US Court can now decide at any moment that it will grant the
prosecution's petition for certiorari. And if so, it can decide within
a relatively short time span - about this, one would have to ask
experienced lawyers - that the prosecution's demand to reinstate the
death penalty is justified and that the December 18, 2001 decision to
throw out the death penalty for Mumia is null and void.

From that point on, the legal barriers against Mumia's execution would
only be paper thin. Pennsylvania's governor Ed Rendell (who served as
the head of the District Attorney's office in Philadelphia when Mumia
was tried, convicted, and sentenced to death for murder in 1982) has
repeatedly made clear that should such a situation arise, he would
loose no time in signing a new execution warrant.

In the light of what has been done to Mumia before, the courts
decision to turn down his petition is not surprising. It's another
application of what has been called the "Mumia Law." Mumia is singled
out for the most unfair treatment imaginable, reserved for true
opponents of the system.

 In J. Patrick O'Connor's review of Mumia's latest book, 'Jailhouse
Lawyers,' O'Connor mentions the fact noted by Mumia himself that of
all the prisoners in the American Gulag of 2.5 million people, who are
incarcerated in one or another form, the "jailhouse lawyers," the one
fighting for the rights of other prisoners and their own rights, are
singled out for the most brutal and inhumane treatment by the guards
and the prison administration.

The same appears to be true for the courts. I have talked to lawyers,
including people who have worked as clerks for State Supreme Court
judges, and I was told that Mumia's brief to the US Supreme Court was
extremely strong and convincing, but all the same, the brief was
turned down, and the US Supreme Court rejects to even consider the
case.

This despite the fact that the brief cites a whole litany of
precedents where the Supreme Court itself and the various federal
appeals courts in the country have granted relief in exactly the same
circumstances where the US Supreme Court now says it is not even ready
to deal with the matter.

In sum: Here, too, Mumia is being punished for being who he is and
acting like who he is, for being Mumia and acting like Mumia, which is
exactly what has sparked such a strong international movement around
this particular case over the years.

That said, I do believe it will have negative consequences and will
weaken positive US Supreme Court decisions such as the ‘Snyder’ case,
where even reactionary justices such as Sam Alito, took a clear stance
against racism in jury selection. The message is: “Look, we can and
are ready to grant you these rights, but only if you have the right
posture, that of one who doesn't raise his/her head. If, on the other
hand, you dare to speak out against injustice, all rights will be
taken away from you.”

This is truly a horrible message.

From our side, I think that means we must step up the fight: The
absence of racism in jury selection and during the trial as a whole
can't be conditioned on some proper behavior of the defendant as
defined by "the master." It is either a right that applies to
everybody or it doesn't offer a real guarantee to anybody.

On a separate point, the consequences are alarming, that, as reported
by CNN and others, the court has already turned down Mumia's petition
while it is still considering the prosecution's brief.

And by alarming I mean just that. "Alarming" doesn't and mustn't mean
going into the shock mode - on the contrary, this is the point where
we must raise hell and mobilize anything and everybody in our powers
to prevent the ultimate injustice, Mumia's execution, from happening.

That said, the prosecution of course has a lot to fear from even a new
sentencing hearing "for" Mumia. Facts would come out that would call
their entire card-house of lies into question and in fact would bring
it down in no time at all. So it's only too understandable that this
is something they are fighting against in "tooth and nail" fashion.

To sum it all up, this is not the time to bow our heads in
disappointed silence. On the contrary, at no point in this whole
struggle is it more important to say that THE STRUGGLE FOR MUMIA'S
LIFE AND FREEDOM CONTINUES!

Brave activists in Philadelphia have stood by Mumia right from the
beginning, joined by others at the end of the eighties. Even in a far
away country such as Germany, activists joined the fray already in
1989. Others all around the world joined, and this would be exactly
the wrong point to give up.

What we can do now - some speculations:

As far as I understand, even now the defense can ask the court to
reconsider its decision. Our first and foremost task as a movement
would be to support such a move with all that is within our powers.
Apart from that, we must raise hell against the DA's countermove to
have Mumia executed. And third, last but by no means least, we must
not give up our struggle to finally free this innocent man, by any
means possible and by any means necessary.

On this last point, we will need to have intense and open
consultations about what to do next. As far as I can see, there are
various options here, and apart from what lawyers can still do (for
example, ask the court to reconsider), two things seem promising to
me: 1) a massive campaign about the facts of the case, which show that
Mumia is innocent of murder, and 2) a campaign for an amnesty for all
the prisoners we consider "political," and who have already served
such an incredibly long time.

[I think this latter point is necessary anyway, as will be evident to
at least some of those who read the names Herman Bell, Veronza Bowers,
Romaine "Chip" Fitzgerald, Jalil Abdul Muntaqim, Leonard Peltier,
Ruchell "Cinque" Magee, Mondo we Langa, Hugo "Yogi" Pinell, Edward
Poindexter, Russell "Maroon" Shoats, Herman Wallace, Alber Woodfox,
and so many others whose names don't spring to mind so readily or who
we haven't even heard about.]

 The long and the short of all this is that this is a serious setback,
but that the struggle continues.

Hasta la victoria siempre! **(END OF QUOTE)


--
Free All Political Prisoners!
nycjericho at gmail.com • www.jerichony.org

 *** * ***  *** * *** * *** * *** * *** * *** * *** * *** * *** * *** * *** * *** * *** * ***
    * "There is nothing more difficult to arrange, more doubtful of success, and more dangerous to carry through, than initiating change..."         Machiavelli 
    * "...There is no other option but to change..."            Fidel 
    * "We are realists... We dream the impossible"        Che


      __________________________________________________________________
Connect with friends from any web browser - no download required. Try the new Yahoo! Canada Messenger for the Web BETA at http://ca.messenger.yahoo.com/webmessengerpromo.php