Death Penalty Again Looms over Mumia’s Head

On June 29, 2004, the U.S. Court of Appeals for the Third Circuit lifted its stay in the case of Mumia Abu-Jamal, and ordered a briefing. At issue is whether the death judgment should stand. Also pending is the prosecution’s unconstitutional use of racism in jury selection.

Robert R. Bryan, Mumia’s lead attorney, has summed up the impact of the latest developments:

“Mumia’s case is now moving forward. He is in extremely grave danger. The authorities want to silence his voice and pen. They thought this could be accomplished by convicting this innocent man and placing him on death row. However, his voice against injustice and oppression is now stronger then ever, and is heard and read throughout the world. The government knows that the only way to stop Mumia is to murder him in the name of the law, to execute him. In over three decades of litigating death-penalty cases, I have not seen one in which the government wants so badly to kill a client. We must not rest until Mumia is free!”

The Court of Appeals briefing order came on the heels of a U.S. Supreme Court decision in Beard v. Banks, (June 24, 2004). The issue is whether this ruling should apply to the case of Mumia. The prosecution is contending that the order for Mumia’s execution must remain and be carried out. However, it is the view of Mr. Bryan that “this tragically unfair decision in the Banks case should not have an effect on Mumia.”

Mr. Bryan explained that Beard v. Banks is a complicated case. The Supreme Court ruled on the appeal by Pennsylvania stemming from a Court of Appeals decision that invalidated the death sentence of George Banks, who has been on death row over 20 years for multiple murder. Mr. Banks’ death sentence had been overturned on the grounds that the jury instructions violated a Supreme Court ruling which held that jurors did not have to agree unanimously on the existence of mitigating circumstances in order to vote against death. The issue in the Banks appeal was whether Mills v. Maryland, 486 U.S. 367 (1988) could be applied retroactively, as the Court of Appeals for the Third Circuit had held.

On June 24 the Supreme Court reversed in a 5-4 decision written by Justice Clarence Thomas. He concluded that the Mills case, which held unconstitutional capital sentencing schemes that require juries to disregard mitigating factors not found unanimously, did not apply retroactively. It was determined that the Banks conviction became final in 1987, thus the 1988 Mills decision did not affect his case even though what had occurred was unconstitutional. Hence, Mr. Banks and others similarly situated could not benefit from the Mills decision and his death judgment will stand. It is understood that about 30 other Pennsylvania death sentences are at stake for similar concerns.

Mr. Bryan pointed out that Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, strongly dissented. Justice Stevens said that the “use of such a procedure is unquestionably unconstitutional today, and I believe it was equally so in 1987 when respondent’s death sentence became final.” He further explained that “Mills simply represented a straightforward application of our longstanding view that ‘the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under [a] legal syste[m] that permit[s] the unique penalty to be…wantonly and…freakishly imposed.’” Justice Souter said, “a death sentence based upon a verdict of 11 jurors who would have relied on a given mitigating circumstance to spare a defendant’s life, and a single holdout who blocked them from doing so, would surely be an egregious failure to express the public conscience accurately.” He found that too much importance is given “to the finality of capital sentences and not enough to their accuracy.”

There are other legal developments concerning the legal fight to free Mumia. Robert Bryan is awaiting a ruling on a petition he filed in the trial court, the Court of Common Pleas, Philadelphia, concerning new evidence of innocence and prosecutorial fraud. He will also be attempting to go back into the U.S. District Court regarding the statement by the trial judge, who said during the trial in reference to Mumia:

“Yeah, and I’m going to help’em fry the nigger.”

Mumia Abu-Jamal is an award winning author and broadcast journalist. He has been languishing on Pennsylvania’s death row for over 23 yrs. Writing from a solitary confinement cell, his essays have reached a worldwide audience. Mumia is the author of five books including Live From Death Row, Death Blossoms, All Things Censored, Faith of Our Fathers and the recently released We Want Freedom. They have sold over 150,000 copies and been translated into seven languages. His 1982 murder trial and subsequent conviction has been the subject of great debate.

Mumia’s insightful essays and melodic baritone breathe life into the numbing statistic—5.1 million people under correctional control. Whether Mumia Abu-Jamal’s voice will reach the airwaves, and ultimately whether he lives or dies, will be a true test of the strength of our struggle. It will also depend on our independence, the depth of our courage, and our will to organize.

—Prison Radio, July 5, 2004