Human Rights

"This Case is Not Over": Death Row Prisoner Mumia Abu-Jamal Still Fighting for his Life

With the world's most famous death row prisoner recently denied a new trial, activists take to the streets on April 19th.
In a long-awaited ruling, last month the U.S. Court of Appeals for the Third Circuit denied Pennsylvania death row prisoner Mumia Abu-Jamal a new trial. The 2-3 decision came down nearly ten months after oral arguments in which judges were presented with key pieces of evidence regarding the shocking misconduct in his original trial -- most important among them the systemic racism, from jury selection to sentencing (not to mention the judge’s overheard statement that he was "going to help'em fry the nigger.") The arguments took place almost a year ago -- last May -- in a packed courtroom. Two decades after he was arrested for the shooting death of Philadelphia police officer Daniel Faulkner, this was the biggest development in Abu-Jamal's case since a federal judge discarded his death sentence (while keeping him on death row) in December 2001. The stakes on this day were high; it was as close as he had come to the possibility of a new trial.

Many who attended the hearing on May 17th came away with the impression that Abu-Jamal had a good shot. The cautious optimism of his supporters was shared by his lawyer, Robert R. Bryan. The judges had asked many questions that suggested they were open to considering much of the evidence that has thus far been dismissed, like the prosecution's deliberate removal of African Americans from the jury pool. In Bryan's opinion, the judges had been largely convinced by the arguments. "If the federal court follows the U.S. Constitution and law, we will be granted an entirely new jury trial," he speculated. "However, if the judges are affected by politics, then the outcome will be against us."

Months passed. When the ruling finally came down, on March 27th, the decision was 2 to 1: Mumia Abu-Jamal would not receive a new trial. But he would receive a new jury trial on whether the sentence should be life or death.

The obvious good news was that the Third Circuit upheld the elimination of Abu-Jamal's death sentence. The bad news: By upholding his conviction, the court condemned him to life in prison -- and that's assuming a jury does not hand down a new death sentence.

Mumia's supporters were angered and dismayed. Pam Africa, coordinator of the International Concerned Family and Friends of Mumia Abu-Jamal announced a mass demonstration in Philadelphia to take place on April 19th. "We have absolutely no faith in the judicial system, but if Mumia does have a court proceeding, we will continue to mobilize to pack the courtroom and the streets in support of Mumia." The passion of Abu-Jamal's most vocal supporters is understandable given how close Mumia has come to being executed. Pennsylvania. Gov. Tom Ridge signed a death warrant for Mumia on October 13, 1999 and the years since have seen him literally fighting for his life.

Yet, Bryan disagrees that the court ruling was a total loss. In a phone interview following the decision, he called the ruling "a mixed bag." "First the fact that the court ruled favorably regarding the death penalty is good … anytime there's a victory over the death penalty, it's good." That said, "the court not granting an entirely new jury trial on the issue of innocence or guilt is bad. Obviously." Whatever the odds, he maintains that his ultimate goal is to get a new trial for Abu-Jamal. "I want him to go home to his family."

One of the reasons Bryan is so optimistic is the opinion written by the dissenting judge, Judge Thomas Ambro. Forty-one pages long, it is the single most important opinion that has been written in Abu-Jamal's case. "I have never seen as powerful a dissent as that," Bryan said. "He really took the other two judges to task." Indeed, the first line of Judge Ambrose's dissent reads: "Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution." On that basis alone, Abu-Jamal deserves a new trial.

However, according to the logic of the majority ruling, Abu-Jamal would have had to object to the racially discriminatory jury selection at the time it occurred.
This, among other things, was absurd and unwarranted. "I do not agree with [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson, Ambro wrote, referring to Batson v. Kentucky (1986), in which the Supreme Court ruled that a prosecutor's use of peremptory challenges could not be used to exclude jurors based solely on their race. "In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for." The ruling, he wrote, "goes against the grain of our prior actions."

"This is what we call 'the Mumia exception,'" explained Bryan. A term dubbed by professor Linn Washington, another investigative journalist, David Lindorff, author of Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal summed it up in the Philadelphia Inquirer: in this politically-charged case, "courts have altered the rules just to keep Abu-Jamal on course for death."

Nevertheless, there may be hope for Abu-Jamal. Bryan recently wrote in an e-mail to his supporters, providing an update on the case.
"The dissent of Justice Ambro is a light in the darkness, a roadmap as to where we go from here. On April 9, 2008, the U.S. Court of Appeals granted my 45-day Motion for Extension of Time To File Petition for Rehearing and Rehearing En Banc. The rehearing petition, now due on May 27, 2008, will be seeking review of the case by all the judges in the Third Circuit. The basis will be that 'the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed and consideration of the full court is therefore necessary to secure uniformity of the court's decisions,' and, 'the proceeding involves one or more questions of exceptional importance.' … If unsuccessful, we will proceed to the Supreme Court."
Given the Supreme Court's ruling this week upholding lethal injection -- and effectively lifting a seven-month-long moratorium on executions, it seems like a long-shot -- and the possibility of a death sentence becomes all too real.

Still, "this case would be ripe for acceptance from the court," Bryan says. Especially following the court's recent ruling in Snyder v. Louisiana, in which the court rule 7 to 2 in favor of a black defendant whose case was riddled with racial bias. That case, points out Bryan, came from the Third Circuit, and the Court's condemnation of racial bias was emphatic, even from a conservative like Samuel Alito, who wrote the majority opinion. (Scalia and Thomas dissented.) "It seems that racism in jury selection cuts across the political spectrum."

"The case is far from over," Bryan says. Activists feel the same way. On April 19, Mumia supporters will take to the streets in Philadelphia and other cities around the world to call for justice for the world's most famous death row prisoner. "Mumia is still on death row and in great danger," Bryan says. "His life is hanging in the balance. We must remember that racism, fraud, politics, and unfairness are threads that have run through this case since the beginning."
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