The only legal options that were considered by the Third Circuit Court of Appeals, a federal court immediately below the US Supreme Court, at the November 9 hearing were whether Mumia Abu-Jamal is to be executed or get life in prison without parole. The question of Mumia?s guilt or innocence and the opportunity of a new trial was not part of this hearing. The Third Circuit decided that issue in March 2008 in a decision made by the same three judges who conducted this hearing.
To grasp the significance of this hearing, one needs to revisit Federal District Court Judge William Yohn, Jr.'s decision of December 18, 2001. In that ruling the judge upheld Mumia's conviction but at the same time threw out his death sentence on the grounds that the verdict form used by the jury for sentencing at his trial violated the U.S. Supreme Court's Mills precedent, thereby prejudicing the jury toward the death penalty rather than life in prison. Yohn then gave the state 180 days to convene a new jury trial only on the issue of Mumia's penalty, in which the choices would be either death or life in prison without parole. On the other hand, if the state did nothing, Yohn ruled that Mumia would automatically be sentenced to life in prison without parole.
At the time he made this decision, Judge Yohn stayed his ruling on overturning the death sentence while the prosecution appealed his decision to the next higher level of federal court, the Third Circuit Court of Appeals. (At the same time Mumia appealed Judge Yohn's decision upholding his conviction). Mumia was therefore never removed from Death Row and remains there to this day.
On March 27, 2008, the Third Circuit upheld Yohn's decision on the death penalty in a 3-0 vote. Again the decision was stayed while the state appealed to the highest federal level, the Supreme Court. (In the same decision, the Third Circuit rejected Mumia's appeal on the conviction by 2-1 that is, finding him guilty and, as before, Mumia appealed that ruling.)
On April 6, 2009 the US Supreme Court refused to hear Mumia?s appeal of the Third Circuit?s decision upholding his conviction.
On January 10, 2010, the Supreme Court ordered the Third Circuit to reconsider its decision on the death sentence in light of its unanimous rejection of an appeal from a white-supremacist named Spisak. That man admitted to killing at least two people in Ohio and openly stated that he wished to have murdered more. He had appealed his death sentence also as a violation of the Mills precedent, but involving a different aspect of it than Mumia's case. The Sixth Circuit, as did the Third Circuit in Mumia's case, ruled that the death sentence should be thrown out. However, the Supreme Court ruled that the Mills precedent did not apply in Spisak's case, and therefore execution rather than life in prison was the appropriate penalty. Based on that decision, the Supreme Court questioned the Third Circuit's ruling in Mumia's case, and asked it to reconsider the issue of execution for him as well.
Thus, the hearing on November 9th was on Mumia's penalty only. The choices before the court were either to sustain Yohn's and its own earlier decisions or to reinstate the death penalty. According to those in the courtroom, the attorney who represented Mumia on this issue, Judith Ritter, argued the applicability of the Mills precedent very convincingly. On that basis Mumia?s death sentence should not be reinstated. The history of Mumia?s case, however, has shown that precedent and effective arguments, as in the argument of racial bias in jury selection made before the same three judges three years ago, are often ignored by the court in favor of a political agenda at least to keep Mumia locked up if not executed and completely silenced. That racial bias issue easily could have resulted in Mumia?s conviction being thrown out, but in a split 2-1 vote, the judges established a new precedent just for Mumia. (All three judges blew off the question of Mumia?s innocence).
After hearing the arguments and asking questions, Chief Judge Scirica said that the court would 'take the matter under advisement'. ). It may be months before a decision is announced.
If the Third Circuit reaffirms its earlier decision to sentence Mumia to life in prison without parole, the state will most likely appeal to the Supreme Court. If that court agrees with the Third Circuit, or in the unlikely event that the state doesn?t appeal at all, the state then will have 180 days to implement Judge Yohn?s decision.
In that case the prosecution would have to decide whether to do nothing and let the life sentence
stand or ask for a new penalty trial (which would take place in a Pennsylvania state court) in the hope of ?winning? a death sentence again. Mumia would certainly want the latter to happen since it would give him some opportunity to introduce new evidence challenging the prosecution?s version of what happened on December 9, 1981, which was the basis for the jury?s guilty verdict at his 1982 trial. Thus, while this proceeding would not be a trial on the question of guilt or innocence, but only a hearing on the sentencing issue, new evidence that could undermine Mumia?s conviction itself might be introduced.
If the Third Circuit rules against Mumia, Mumia will surely appeal to the Supreme Court. But the odds for the Supreme Court to overturn the Third Circuit?s decision favoring execution are very small given the reactionary composition of that court.
However, even if the Supreme Court rules for a death sentence, Mumia would still have some legal options. Back in 2001, when Yohn threw out the death penalty based on the Mills precedent, he did not deal with several other issues raised by the defense. Therefore, Mumia would have the right to go back before Judge Yohn and ask him to address these other significant issues related to the improper sentencing process at his trial. Such a hearing, though limited to life in prison or execution, would inevitably also include challenges to the prosecution?s version of what happened at the crime scene. This would especially be true if grassroots work continues to expose the fraudulent nature of the trial and appeals process as has been done dramatically in the last few years; for example, through the release of the long hidden photographs of the crime scene, and the evidence that four people, not three, were present at there. This would also be true if grassroots work continues to press for a Department of Justice civil rights investigation and draws greater support and activism. Not only might the death penalty be once again overturned, but Mumia?s conviction itself might get thrown out.
Mumia's legal situation remains extremely dangerous as the re-imposition of the death sentence would surely be a big setback in his struggle to demonstrate his innocence. The authorities in Philadelphia are mobilizing for Mumia?s execution, and the Supreme Court seems likely to be sympathetic to that agenda. But even with that being said, the right that remains for Mumia to go back to Judge Yohn is very important for opening up space to expose the level of injustice, the violation of due process, and the racism that has permeated the entire history of this case. While the US legal system looks very powerful and impenetrable to justice, the grassroots movement in the US combined with international pressure could force the courts to make decisions that they otherwise would not. Surely Mumia?s being alive today, despite three attempts to kill him, twice with scheduled execution days, is a tribute to the massive struggles waged by people across this globe.
New York Free Mumia Abu-Jamal Coalition
International Concerned Friends & Family of Mumia Abu-Jamal