What now for Mumia?
As widely reported in the media, the United States Court of Appeals for the Third Circuit issued its long-awaited decision on March 27, 2008. Mumia and I had legal conferences that day, and have been in frequent meetings since.
We view the opinion of the three-judge panel as a mixed bag with some good, some very wrong, and a remarkable dissenting opinion by a judge on racism that gives us great hope for eventual victory. A new jury trial has been ordered by the federal court on the question of whether Mumia should live or die, due to the trial judge’s unconstitutional and misleading instructions to the jury.
It is a positive step in any capital case when a court finds that the death penalty was wrongfully imposed. Mumia is pleased with this part of the ruling because it could help others on death rows across America.
The prosecution now has various options including seeking reconsideration by the federal court and petitioning the United States Supreme Court to have the death sentence remain intact, and has vowed to do all possible to have Mumia executed.
Racism, false argument and judicial bias
It was a great disappointment that the federal court rejected our quest for a reversal of the conviction and a new trial on the question of guilt and innocence. To say that Mumia and I are unhappy with this would be an understatement, for the decision flies in the face of the United States Constitution and case precedent.
The facts are that the prosecutor did engage in racism during jury selection, and made a false and misleading argument to the jury which turned the concept of reasonable doubt and presumption of innocence on its head. The trial judge was biased and bigoted, even stating in reference to my client that he was “going to help’em fry the nigger.”
Unfortunately, the court used against Mumia the failings of the lawyers who represented him years ago in the state and lower federal court. These mistakes should not serve as an excuse to rationalise away the fundamental constitutional violations that occurred in this case.
An inspiring dissent
The silver lining of this ruling is that Judge Thomas L. Ambro wrote a 41-page dissent on the racism-in-jury-selection issue. This brilliant opinion began: “Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution. See Batson v. Kentucky, 476 U.S. 79, 84-86, 99 n. 22, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This simple justice principle was reaffirmed by our Supreme Court this past week. Snyder v. Louisiana, No. 06-10119, 2008 WL 723750, at *4 (Mar. 19, 2008).”
The judge concluded that everyone “is entitled to a fair and impartial trial by a jury of his or her peers. As Batson reminds us, ‘[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of . . . race.'” Id. at 97-98.
The “Mumia Exception”
The latest denial of a new trial to Mumia has been referred to as part of the “Mumia Exception.” David Lindorff, a noted investigative journalist and author of Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal, wrote in the Philadelphia Inquirer on April 2, 2008, that the “courts have altered the rules just to keep Abu-Jamal on course for death.” What Professor Linn Washington earlier dubbed the “Mumia Exception” could not have been more on target.
Reaction of the District Attorney
The District Attorney appeared livid that the federal court had ordered a new penalty-phase jury trial. At a press conference on March 27, 2008, the day of the decision, she vowed that her office will continue pursuing the execution of my client.
Sadly, the prosecution could not resist distorting the truth as it has from the outset over a quarter of a century ago. The DA falsely said that the court “decided . . . that Mr. Jamal was guilty.” That is not what the U.S. Court of Appeals found and is nonsense; there was no retrial or verdict.
Where we go from here
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.
Mumia still in danger
The issues in this case concern the right to a fair trial, the ongoing struggle against the death penalty, and the political repression of a courageous author and journalist. Based upon three decades of successfully defending people facing the death penalty, I am convinced that we can win an acquittal upon a new jury trial. My goal is his acquittal, for Mumia to go home to his family. I will not ret until that occurs.
Mumia is still on death row and in great danger—his life hangs in the balance. We must remember that racism, fraud, politics, and unfairness are threads that have run through this case from the beginning.
Finally, we are grateful for all those who do so much to bring the injustice in this case to public attention, whether it be through demonstrations, writing to newspapers, meetings, or circulating information on the Internet. This is all important. We are of one voice in this campaign for justice: Free Mumia!