Supreme Court Pushes Mumia Abu-Jamal a Step Closer to Execution

by C. Clark Kissinger
January 2010

In a three-sentence unsigned order, the United States Supreme Court has reversed a decision of the Third Circuit Court of Appeals that had found Mumia Abu-Jamal's original death sentence to be unconstitutional. The case has been sent back to the Third Circuit "for further consideration" in light of another decision by the Supreme Court that changed the Supreme Court's established precedent governing imposition of the death penalty.

This recent Supreme Court action is an ominous development in a 28-year battle over whether the rulers of this country will be able to execute the revolutionary journalist, author, and former Black Panther, Mumia Abu-Jamal. FBI files show that Mumia was under government surveillance for years. He was a crusading Black radio journalist in Philadelphia in 1981, who was also moonlighting as a cab driver when he was involved in a street incident in which a cop was killed and Mumia was shot and severely wounded. From the very beginning, every stop was pulled out to convict Mumia of the shooting and to effect an execution, all based on the grossest violation of legal procedures and fabrication of evidence.

Mumia was convicted and sentenced in a trial where almost all Blacks were excluded from the jury, where police officers were allowed to "remember" (three months after that fact) that Mumia had loudly confessed to shooting the cop (even though a written report—unseen by the jury—from that evening said Mumia made no statement), and where Mumia was barred from the courtroom during half of his own trial because he continued to assert his right to refuse a court-appointed lawyer and to conduct his own legal defense.

In the sentencing part of Mumia's trial, prosecutors overtly made Mumia's politics a factor in arguing that he should be executed—invoking the fact that in the context of exposing the nature of the rulers of this system, a teenage Mumia had quoted Mao Tsetung's statement that "political power grows out of the barrel of a gun."

In the years since Mumia's railroading, new evidence has continued to come forward. New witnesses have described a different person, who fled the scene, as the shooter. Evidence of police coercion of trial witnesses has been amassed. Newly surfaced photographs show that the police claim of Mumia repeatedly firing down at the fallen police officer could not be true.

In these same intervening years, Mumia has finished his college education and earned a master's degree, he is the author of six books, and he continues to publish a weekly column—and he's continued to stand with the people and write columns exposing the system. All from a death-row cell where he is confined 23 hours a day and restricted from seeing family and lawyers except in shackles and chains from behind a plexiglass window.

Most importantly, Mumia has never recanted his belief in the criminality of the system and the need for revolutionary change.

The Supremacist Court

The U.S. Supreme Court is part of the ruling class state apparatus in this country. That is why what is constitutional one day can be found unconstitutional the next, as the needs of the more dominant sections of the ruling class dictate.

For example, during the Jim Crow era, when Black people in the South were exploited under slave-like conditions, the Supreme Court found the legal standard of "separate but equal" was constitutional. That ruling was reversed in the 1950s. Not because the U.S. Constitution itself changed, or because the Supreme Court justices developed new and deeper insights into the meaning of the U.S. Constitution. "Separate but equal" was, in the view of the Court, no longer in conformity with the interests of U.S. imperialism. Segregation was being challenged by powerful protest movements in the U.S. And global outrage at overt, legally sanctioned racial discrimination in the U.S. was proving to be a serious obstacle to U.S. moves to portray itself as a champion of democracy, for the purposes of supplanting European powers' neocolonial domination of Asia, Africa, and Latin America, and in contending with revolutionary movements—particularly in the Third World. And so, under these circumstances, the court overturned the "separate but equal" standard that had been constitutionally legal for decades.

Over the past 50 years, the U.S. ruling class has faced different freedom and necessity in regard to the death penalty. During the upsurges of the 1960s, the death penalty was widely (and accurately) perceived as a violent means of keeping Black people, Latinos, poor people, and political dissidents and revolutionaries oppressed and suppressed. In the context of unprecedented uprisings within the U.S. and international condemnation of the death penalty in the U.S., it was effectively suspended for the decade of the late 1960s through the late 1970s. Since then, while the reality of how the death penalty is used has not changed, the death penalty has been reimposed with a vengeance. In 1994, President Clinton signed the Violent Crime Control and Law Enforcement Act that expanded the federal death penalty to include some 60 crimes.

And there has been struggle—both movements against the death penalty, and some debate within the ruling class—over the use of the death penalty.

Changing Death Penalty Law to Streamline Executions

In the context of a worldwide movement to free Mumia Abu-Jamal, and a wider struggle over the death penalty in the U.S., Mumia's death sentence was ruled unconstitutional by lower courts. The legal basis for this ruling was that the judge's instructions to the jury during sentencing deliberation violated the guidelines set down much earlier by the Supreme Court in Mills v. Maryland. Most states that have the death penalty have a balancing test whereby the jury weighs mitigating and aggravating circumstances in deciding whether to impose the death penalty. The imposition of a death sentence must require a unanimous decision to do so. Requiring unanimous agreement for aggravating circumstances is consistent with this. But if deciding on mitigating circumstances also required a unanimous agreement, that would allow a single pro-death penalty juror to block agreement on any mitigating circumstances, allowing the aggravating circumstances to then predominate and force a death sentence.

Jurors are instructed by trial judges on how to apply the law. The Supreme Court held in the Mills case that "[t]here is a substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular mitigating circumstance." Hence Mills' death sentence was overturned.

This is what happened in Mumia's trial. The form given to the jurors on which to record their findings was worded in a way that any reasonable reader would have concluded that they had to be unanimous on mitigating circumstances. Thus Mumia's death sentence was overturned by a federal district court—a decision that was upheld by the Third Circuit—because the Mills precedent was clearly established federal law.

But the Supreme Court has moved to reverse this standard through a ruling in the case of a neo-Nazi from Ohio named Spisak. Spisak's death sentence had previously been voided because of a violation of the Mills precedent, and that ruling was recently overturned by the Supreme Court. This is a device frequently used by reactionary forces bent on taking away established rights: they use the cases of individuals who have no public support (racists, Mafia, rapists, etc.) to reverse established precedents and establish new weapons against the people.

In this Spisak case, 19 state attorneys-general submitted a joint amicus brief to the Supreme Court, asking that the Mills precedent be watered down to make it easier to get death sentences imposed. Not surprisingly, this brief was initiated by the attorney-general of Pennsylvania and it cited the Mumia case as an example. The Supreme Court then decided 6-3 to modify the Mills decision and let Spisak's death sentence stand.

This ruling has broad and ominous implications in a system where the death penalty is applied to enforce racial, class, and political oppression. And this ruling has urgent and dangerous implications for Mumia Abu-Jamal.

Mumia Must Be Defended

The situation is now very dangerous for Mumia. While the Supreme Court did not explicitly find the Third Circuit to be in error, it did vacate the Third Circuit decision and ordered that court to "further consider" Mumia's case in light of their Spisak decision. Technically, the argument before the Third Circuit will entail whether the facts in the Mumia case are different from the Spisak case. A recent letter from Mumia's attorney, Robert R. Bryan, states, "Now we must resume litigating the issue of the death penalty in the lower federal court. It previously ruled that the trial judge misled the jury and thus Mumia was entitled to a new jury trial on the issue of death or life. That is still the issue. What occurred in Mumia's case is different both procedurally and factually from the jury instructions in Spisak."

Forces ranging from Amnesty International to the European Parliament have expressed concern over the fraudulent nature of Mumia's conviction and sentencing. Yet the Supreme Court not only denied Mumia's appeal for a new trial, but has now blatantly reversed existing principles and openly implied that the Third Circuit should come up with a new finding that would sanction Mumia's execution.

Mumia was railroaded to jail because of his revolutionary beliefs. It would be a terrible thing if the U.S. government is able to execute him. Anyone with a basic sense of justice, and anyone who aspires to a much better world, must oppose and resist the oppressor carrying out the ongoing persecution and the attempted "legalized murder" of Mumia. All this occurs within a broader climate of reaction and an Obama administration that continues to sanction torture, rendition, and large concentration camps (like Bagram in Afghanistan), pushes the war on Afghanistan, launches a brazen occupation of Haiti, and continues to uphold and defend in court the reactionary contempt for the rule of law so massively expanded by the Bush administration. A mass movement, reaching far and wide in society and around the world, was an important factor in stopping the rulers of this country from executing Mumia Abu-Jamal in the 1980s and '90s. At this moment people must come together behind the demand to free Mumia Abu-Jamal.

Revolution #190, January 31, 2010