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Court Rules Mumia Abu-Jamal’s Death Sentence is Unconstitutional, Grants New Sentencing Hearing

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The case of Pennsylvania death row prisoner Mumia Abu-Jamal took a surprising turn Tuesday when the Third U.S. Circuit Court of Appeals unanimously declared his death sentence unconstitutional. It is the second time the court has agreed with a lower court judge who set aside Abu-Jamal’s death sentence after finding jurors were given confusing instructions that encouraged them to choose death rather than a life sentence. Now Abu-Jamal, a former Black Panther and journalist, could get a new sentencing hearing in court. We speak with his co-counsel, Judith Ritter, and Linn Washington, an award-winning journalist who has followed Abu-Jamal’s case for almost three decades. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The case of Pennsylvania death row prisoner Mumia Abu-Jamal took a surprising turn Tuesday when an appeals court unanimously declared his death sentence unconstitutional. It’s the second time the court has done so.

Abu-Jamal is a former Black Panther and journalist. For decades, he has argued racism by the trial judge and prosecutors led to his 1982 conviction of killing Philadelphia police officer Daniel Faulkner.

Two years ago, the Third U.S. Circuit Court of Appeals agreed with a lower judge who set aside Abu-Jamal’s death sentence after finding jurors were given confusing instructions that encouraged them to choose death rather than a life sentence. The U.S. Supreme Court then ordered the court to reexamine the decision. Now that the ruling has been upheld, Abu-Jamal could get a new sentencing hearing in court before a new jury.

Philadelphia District Attorney Seth Williams said he’ll appeal the federal court’s decision to grant a new sentencing hearing for Abu-Jamal.

DISTRICT ATTORNEY SETH WILLIAMS: What I’m going to do is I’m going to review fully the opinion of the Court of Appeals, but it is my belief at this point that I will ask the Supreme Court to clarify and to make a decision on what we should do at this point.

AMY GOODMAN: Philadelphia District Attorney Seth Williams.

Well, to discuss these latest developments in the case of Mumia Abu-Jamal, we go to Philadelphia, where we’re joined by his attorney, Judy Ritter. She has worked on his case as his co-counsel since 2002 and wrote the legal arguments in this appeal.

We’re also joined by Linn Washington, the award-winning journalist and columnist for the Philadelphia Tribune. He has followed Mumia Abu-Jamal’s case for almost three decades.

We welcome you both to Democracy Now! Judy Ritter, why don’t you start off by explaining exactly what this decision is? How significant is it? What does it mean for Mumia Abu-Jamal?

JUDITH RITTER: It’s enormously significant. It was literally a life-or-death decision, and it upholds the setting aside of the death penalty that occurred in early 2000. So, the DA has challenged that ruling that the death penalty was unconstitutionally implemented, and we’ve once again prevailed in the courts with regard to the ruling that it was an unconstitutional sentence that was handed down by the jury.

AMY GOODMAN: If you could explain exactly what the process was that this court has found unconstitutional, what the jurors are given, what they understood, the instructions they were given at the time.

JUDITH RITTER: Sure. You know, death penalty law is very clear that a jury has to be very free to consider any possible evidence that would suggest the death penalty is inappropriate. And Supreme Court case law, all federal case law, has been consistent that nothing can suggest to the jury that they have restrictions with regard to the consideration of mitigating evidence.

And what happened here — and this is not that uncommon in Pennsylvania at the time — is that the jury was led to believe, because the instructions were incorrect, that unless they all agreed that a particular mitigating circumstance existed, they couldn’t consider it. And that’s not the law. The law is that an individual juror may find a mitigating circumstance and considerate it, in weighing it, in determining whether to vote for death or not. And so, because this jury was misled, because the instructions and the verdict sheet were highly misleading — not even close, actually — the district court judge originally said that it was unfair, the Third Circuit said it was unfair in 2008, and again yesterday the Third Circuit said, “Despite recent Supreme Court cases, we’re confident that this was an unfair death sentence.”

AMY GOODMAN: And so, Judith Ritter, what does this mean? What is the timetable that was given? What does it mean to impanel a new jury? And what will they be hearing?

JUDITH RITTER: Well, to just back up for a minute, what it means immediately, according to the DA — and you mentioned that in the beginning — the DA says that he’s going to ask the U.S. Supreme Court to consider whether the Third Circuit is right. So that will take a good few months. And just, the Supreme Court may or may not agree to even look at the case. If they refuse to look at the case, if they deny certiorari, as they do in many, many cases, then the District Attorney will make a choice. Do they convene a new penalty phase? Do they ask a new jury to sentence Mumia to death, or not? That would mean, if they decided to do it, a jury gets selected, and evidence is presented by the prosecutor. They have the burden of trying to persuade a jury that death is appropriate. If the Supreme Court agrees to hear the case, then of course that will be briefed in the Supreme court. And the issue that’s already been ruled upon by four federal judges would have to be considered by the Supreme Court, but only if they agree to review it.

AMY GOODMAN: So this jury that will hear the sentencing part, whether he would get the death sentence or life without parole or a life sentence, how much evidence can be presented in that case?

JUDITH RITTER: It depends on what the evidence is relevant to, right? With regard to sentencing, with regard to whether there are aggravating circumstances or mitigating circumstances, it’s pretty broad in terms of what evidence can be presented. What type of evidence that related to the guilt would have to really be decided at the time. It becomes a difficult issue when it’s a new jury who didn’t sit at the trial years back. So those issues would have to be litigated, actually, with regard to what evidence would be presented, and it would be important legal calls that that judge, who would be selected also, would have to make.

AMY GOODMAN: And if there was new evidence?

JUDITH RITTER: New evidence with regard to innocence, do you mean?


JUDITH RITTER: Well, if there were new evidence with regard to innocence, that would be presented in a different forum. That would have to be presented in a post-conviction action that could be filed in the state court, and possibly federal court down the line. Anything new would have to be litigated aside from a new penalty phase.

AMY GOODMAN: Now, isn’t there also another appeal pending in the Pennsylvania Supreme Court? Can you talk about that?

JUDITH RITTER: Yes, I can. Yeah, a petition was filed, and the Supreme Court of Pennsylvania is reviewing it. The National Academy of Sciences, which is a congressionally appointed academy with very highly respected scientists, came out with a report a couple of years ago discrediting so much of the forensic evidence that courts have been using for many years. And part of that was ballistics testimony. And so, we filed a petition alleging — and I think we have strong grounds to allege this — that the ballistics evidence in the testimony from the ballistics expert in Mumia’s trial was now discredited, that it’s not reliable evidence. And so, based upon that, we’ve asked for a new trial, because of that new information. That was denied by the lower court, and that is currently pending in the Pennsylvania Supreme Court.

AMY GOODMAN: Linn Washington, you have been covering Mumia Abu-Jamal’s case since the beginning, almost 30 years now. Were you surprised by this ruling?

LINN WASHINGTON: I wasn’t surprised by the ruling. The court, in its opinion in 2008, was very meticulous in how it examined this particular issue. So, for them to be asked — or more specifically, ordered — by the Supreme Court of the United States to reexamine this meticulous deliberation they gave, I didn’t think that the court would come to a different conclusion. However, as Professor Ritter and I were talking about before we came on live, you can’t really predict what’s going to happen in this case, because the rulings from the courts have been so perverse and have bent and broken the law on so many occasions. I mean, it’s incredible that we’re at this point now where the courts have now said that of all of the things that have happened in this case, there’s only one issue that we find problematic, and that’s a statistical improbability, if not impossible.

AMY GOODMAN: Go back to the beginning of this trial. I mean, it was December 9th, 1981, that Philadelphia police officer Daniel Faulkner pulled over a car driven by William Cook, Mumia’s brother. Mumia’s birth name was Wesley Cook. And in the end, in that altercation, two people were shot: Faulkner and Mumia Abu-Jamal himself. Faulkner died. Faulkner was a white police officer. Mumia Abu-Jamal was black, a black journalist living in Philadelphia. The jury happens. Describe the case — the trial happens. Describe that case and the judge, Sabo.

LINN WASHINGTON: Well, it was a very highly charged trial, as well as crime. And part of the thing that charged that was the racial element: a white cop and a person who self-identified as a black radical, a revolutionary, if it will. So that dominated headlines.

The actual structure of the trial was the type of proceeding that, if it occurred in another country and it involved an American, even Fox Television would find it to be ludicrous. We had a judge, Judge Sabo, who had a reputation of being pro-prosecution. I mean, this is what he publicly declared on numerous occasions. So, from a fundamental fairness point of view, how could you have a fair trial?

And then, this particular judge went on to not only select actual juror members, when he improperly withdrew Abu-Jamal’s right to represent himself, he determined what evidence the jury would hear. So, as Amnesty International said in its report in 2001, the jury that convicted Abu-Jamal didn’t even hear all of the evidence that was available at the time. And, of course, as we now know, there’s been a lot of other evidence that has come forward, and that jury never heard any of that.

AMY GOODMAN: Of course, there was also the famous court stenographer, who said in an affidavit that she heard Judge Sabo say in the courtroom antechamber, “I’m going to help them fry the [N-word],” he said — the court stenographer said about Sabo.

LINN WASHINGTON: Right. She overheard this. She agonized with it for a number of years, actually about 11 or 12 years, came forward, presented that information. When it went to the court, they essentially said, “Well, we don’t know. If the guy is racist, it’s no big deal, because it was a jury trial.” Well, like I just said, he determined a lot of elements in the trial. But the one missing element in that whole — this particular angle, in terms of this revelation, was that this court stenographer was with a judge, a judge who was a member of the Philadelphia court at the time and subsequently served on the appellate court in Pennsylvania. So, if there was a real effort on the part of the system —- prosecutors and the courts -— to really determine the validity, or lack thereof, of this charge against Sabo, they could have went and talked to this judge, and they never did. And I think they never did, because they didn’t want to hear the answer, which was: yes, Sabo said it, he was a racist, and that invalidates the whole trial; Abu-Jamal deserves a new trial.

AMY GOODMAN: Philadelphia District Attorney Seth Williams said Tuesday, while the decision means Abu-Jamal might get a life sentence instead of the death penalty, it does not change his first-degree murder conviction. This is Williams.

DISTRICT ATTORNEY SETH WILLIAMS: This is not a case of “who done it?” The Court of Appeals had ruled that this is not for a new evidentiary hearing, that Mumia Abu-Jamal did in fact kill Officer Daniel Faulkner in 1981.

AMY GOODMAN: That was Philadelphia District Attorney Seth Williams. Linn Washington, your response?

LINN WASHINGTON: And that was sophistry. On the surface, yes, the courts have upheld that, but that is the real travesty in this case, that the courts have dismissed all of the overwhelming factual evidence that the crime did not occur as the police and prosecution claimed and also that Abu-Jamal didn’t shoot the officer, as he’s been convicted of. Now, the courts have upheld it, but again I say, that is one of the true travesties in this whole case, that they could look at this overwhelming evidence and say, “Well, we don’t think that’s any problem. Yes, the judge is a racist. Yes, cops lied in court. Yes, evidence was fabricated. No, there’s not the evidence that you claim that there is. But we don’t see any problems here. We have overturned hundreds of cases from Philadelphia by the same district attorney’s office, but in this particular case, the one that gets the most international attention, we don’t see any problems at all.” I think that’s problematic for any fair-minded person.

AMY GOODMAN: Finally, Judy Ritter, what does the timetable look like right now? It was 2001, in fact, that this already, in a sense, took place, yet Mumia Abu-Jamal continues to live on death row, as he has for almost 30 years now.

JUDITH RITTER: That’s correct, he does. And I think not everybody realizes that, that even throughout, even though the death sentence was set aside, he hasn’t moved from death row at all. You know, I think that the timetable now is — really depends on the Supreme Court. If they don’t choose to review this within several months, that should be decided. If they do, the briefing and the presentations in the Supreme Court will take a lot longer than that.

I just want to add something about what the District Attorney said yesterday, because everything, I think, he said has to be taken with a huge grain of salt, because he also said that there was racism in the criminal justice system in Pennsylvania at that time. He admits that, and he says, “But not in this case.” Well, really, nothing could be further from the truth. And what Linn just said is — you know, a huge amount of the evidence that there was so much racism at play in this case. And for him to make a statement like that, it just seems disingenuous.

AMY GOODMAN: Well, I want to thank you both very much for being with us. Linn Washington, Philadelphia Tribune, has covered the case of Mumia Abu-Jamal since the beginning. And Judith Ritter has represented Mumia Abu-Jamal since 2002. She’s also a professor of law and director of the Criminal Defense Clinic at Widener Law School in Pennsylvania.

This is Democracy Now!,, as we turn to Mumia Abu-Jamal’s latest audio column, produced by Prison Radio. Mumia Abu-Jamal does a weekly column that is run on radio stations around the country. He did this on April 24th. It’s called “The Method of Their Madness.”

MUMIA ABU-JAMAL: “The Method of Their Madness.”

Across America, jaws are tightened and hearts race over rising gas prices, which, in turn, hikes prices all along the line of product distribution, as manufacturers and merchandisers add their increased transportation cost to prices. Americans are surly, shaking their fists at Arab potentates, dreaming wild dreams of desert conquests that will bring this vital resource under U.S. control.

What the average American doesn’t know is that less than 20 percent of all imported oil comes from the Middle East and that the reason for much of the heightened prices is because of pure speculation and fear stoked by news stories of unrest in the region. And what event caused the greatest regional unrest in the past 25 years? The Iraq war. Yeah, the Iraq war. And the unrest has sent oil prices spiking upwards. For example, on the eve of the war, oil sold at $30 a barrel. By spring 2008, it was $126 a barrel. Today, it’s $108 per barrel.

Still, for the last few years, Exxon Mobil made more money on petroleum sales than any company in the history of capital. Last year, Exxon made $30 billion in profits. Thirty billion. For these ends, wars are fought. Tens, even hundreds, of thousands are slain. The Constitution is shredded. The economy is bottomed out. Schools are hollowed out. And politicians are but prostitutes in suits — with my apologies to honest prostitutes. Terrorism is a chimera, a political tool to mask deeper economic drives to dominate and control the world’s sole remaining natural resource: oil. There is a method to this madness. It’s called profit.

From death row, this is Mumia Abu-Jamal.

AMY GOODMAN: Mumia Abu-Jamal released that commentary on April 24th, his 58th birthday. He has been doing weekly commentaries for years, produced by Prison Radio and Noel Hanrahan. We have interviewed him on Democracy Now!. You can go to our website to see all the interviews. In 1999, he came on the politicalprisoners”>broadcast to comment on the release of a number of Puerto Rican indepedentista activists. As he spoke to us on the phone, his phone was ripped out of the wall by prison authorities. Mumia sued and later won that case for violation of his rights.

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