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October 2002 • Vol 2, No. 9 •

Abu-Jamal Files an Appeal with a Unique Argument

By Carole Seligman

Attorneys representing Mumia Abu-Jamal filed an appeal to Pennsylvania’s Supreme Court on August 27 to overturn Judge Pamela Dembe’s ruling last year denying Mumia’s right to submit evidence of his innocence in the 1981 murder of Police Officer Daniel Faulkner. Dembe ruled that Jamal—who had proved blatant racial prejudice by Judge Albert Sabo, the judge who presided over Jamal’s original trial and over his Post Conviction Relief Appeal in 1995—had no right to an impartial judge. Jamal has been incarcerated on death row for 20 years for this crime, although another man, Arnold Beverly, has confessed to the killing in a sworn affidavit!

The new brief filed by Mumia’s attorneys (Michael Farrell, Eliot Grossman, Marlene Kamish, and Nick Brown) decries the ruling’s violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, which require that no procedural rules stop a defendant from putting forward evidence of innocence, and the violation of the Eighth and Fourteenth Amendments’ prohibition on cruel and unusual punishment to bar such evidence of innocence.

In plain terms, if you were unjustly sentenced for a crime you did not commit, and evidence that proved your innocence was uncovered after many years, and a judge refused to hear that evidence on some technical grounds (such as, the evidence was presented “too late”), how would you feel? What would you do? This is the situation of Mumia Abu-Jamal. And, considering the fact that over 100 people have been released from death row prison cells, having been proven innocent in only the last few years (largely on the basis of DNA evidence pointing to someone else’s guilt in the crimes for which they were convicted), Mumia’s situation is not unique. It could happen to me and you.

What is unique, is that Mumia Abu-Jamal is a gifted and prolific journalist, who despite being caged—still on death row—in the Pennsylvania Correctional Institution Greene, writes with passion and knowledge—and a point of view alternative to the corporate media—about the most pressing issues of the 21st century: war, poverty, the prison-industrial complex, racial oppression, civil rights, political prisoners (beside himself) and more.

Mumia and the Dred Scott pro-slavery decision

Now, Jamal’s attorneys, in their brief appealing Judge Dembe’s decision, have convincingly placed this decision—and a whole history of wrong decisions in Mumia’s case—in the context of the role of racial oppression in U.S. history and U.S. courts. Here’s their argument that “The ‘Dred Scott Decision’ is the only legal precedent for Judge Dembe’s ruling that Petitioner Jamal had no right to an impartial judge”:

In 1857, prior to the U.S. Civil War, Dred Scott, a Black man, sued a U.S. court for his freedom from slavery. Chief Justice in the case was Roger Brooke Taney, a slave owner—as were four other justices on the U.S. Supreme Court—from Maryland, who held that the court had no jurisdiction in the case. He wrote:

The question is simply this, can a Negro, whose ancestors were imported to this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed by that instrument to the citizen…. We think they are not…included under the word “citizens”…and can therefore claim none of the rights and privileges which that instrument provides for…. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race…and so far inferior that they had no rights which the white man was bound to respect….

This was the law of the land. And it took a huge Civil War with a tremendous expenditure of human life to tear this racist doctrine down. But, as Mumia’s brief shows, the Dred Scott decision is still with us in the many racist rulings of the judges that have ruled in Mumia’s case and appeals.

Judge Albert Sabo who sentenced Mumia to death acted in the tradition of the Dred Scott decision. He worked hand-in-glove with the prosecution to convict Jamal. An affidavit has been filed in this case by Terri Maurer-Carter, a court stenographer who overheard Judge Sabo say in the antechambers of the court during the time of Jamal’s original trial, “Yeah, and I’m going to help ’em fry the nigger.” And Sabo’s racism overtly infected his conduct of the trial in many, many ways. Among them were: He disallowed Jamal to question potential jurors claiming that jurors were “afraid” of Jamal. He refused Jamal the assistance of John Africa as a legal advisor (citing Africa’s appearance and lifestyle). He stopped Jamal from serving as his own lawyer on false pretexts. He removed Black jurors from serving on the jury. He removed Jamal from the courtroom during most of the trial and he directed the jury to return a verdict for the death penalty despite many mitigating conditions.

Dembe’s ruling echoes the judge in the Dred Scott case

The lawyers’ brief presents a cogent argument that the ruling of Judge Pamela Dembe that Jamal “had no right to an impartial judge to preside over his jury trial”[!]…“effectively declared the courts of the Commonwealth of Pennsylvania to be a ‘justice-free zone.’” Many precedent court decisions, which declare forcefully for an impartial judge, are cited in the brief. For example: A 1997 ruling in Bracy v Gramley is cited:

We cannot ignore the influence that the judge retains in a jury trial…to shape the trial itself. It is she who decides what evidence the jury may hear, how counsel may behave in front of the jury, what arguments may be made, how they may be made, what legal principles the jury must apply, and even, to a significant degree, who will sit on the jury. Thus, even when the verdict is not entrusted to her, a partial judge retains great influence, if not directly upon the jury, then upon the myriad events that culminate in the jury’s decision.

The brief convincingly argues that the only possible precedent for Judge Dembe’s decision not to allow Jamal to present the evidence that exonerates him (the confession of Arnold Beverly) is the Dred Scott decision. The brief quotes from more than one Supreme Court decision to the effect that “a defendant is entitled to a trial before a judge who is not biased against him at any point of the trial…” In Judge Sabo’s conduct, the brief states, “Judge Sabo’s open expression of his intent to contrive with the prosecution to ‘fry’ Petitioner Jamal because of his race falls straight through that ‘constitutional floor’ into a cesspool of racism which, over 100 years after the Civil War, still pollutes our society and, lamentably, elements of its judiciary.”

Lack of impartial judge equivalent to trial by lynch mob

The brief calls the Sabo’s conduct at the original trial “a cynical farce [which, in a capital case is] no better than a lynching party. This is precisely what petitioner Jamal’s trial before Judge Sabo was, to the eternal disgrace of the Commonwealth of Pennsylvania.”

But, in ruling that Jamal didn’t have the “right” to an impartial judge, the brief scores Judge Dembe: “[S]ince being tried before an unfair tribunal is no different from being ‘tried’ by a lynch mob, the ‘right’ to be tried before an unfair tribunal is no right at all.”

Both Sabo and Dembe demonstrated in their rulings that “a Black person has ‘no rights which the white man was bound to respect.’”

National Conference in defense of Mumia

A National Conference on Civil Liberties, Democratic Rights and the case of Mumia Abu-Jamal sponsored by the Mobilization to Free Mumia Abu-Jamal, and supported by many other organizations, will take place November 15-16 at the University of California in Berkeley. Participants will have the opportunity to learn much more about Jamal’s case from his attorneys, who will present a workshop there, as well as the cases of other political prisoners. Civil rights Attorney Lynne Stewart, now under indictment for her work in defending unpopular clients, will speak at the conference as well as a broad cross section of advocates for human and civil rights.

Note: Legal briefs in Mumia Abu-Jamal’s case can be read on the Internet at www.ChicagoFreeMumia.org

Information about the National Conference is at alerts@freemumia.org





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