Punishing Radicalism: Mumia Abu-Jamal, Andrea Smith, and Due Process
March 28, 2008 5 Comments
When I ran The Anti-Essentialist Conundrum, I linked a post about one of many political prisoners in the United States right now, Mumia Abu-Jamal. (A consequence of nuking one’s blog is not knowing which post it was, or who wrote the post you linked. *sigh*)
Mumia Abu-Jamal is a renowned journalist from Philadelphia who has been in prison since 1981 and on death row since 1983 for allegedly shooting Philadelphia police officer Daniel Faulkner. He is known as the “Voice of the Voiceless” for his award- winning reporting on police brutality and other social and racial epidemics that plague communities of color in Philadelphia and throughout the world. Mumia has received international support over the years in his efforts to overturn his unjust conviction.
Mumia Abu-Jamal was serving as the President of the Association of Black Journalists at the time of his arrest. He was a founding member of the Philadelphia Chapter of the Black Panther Party as a teenager. Years later he began reporting professionally on radio stations such as NPR, and was the news director of Philadelphia station WHAT. Much of his journalism called attention to the blatant injustice and brutality he watched happen on a daily basis to MOVE, a revolutionary organization that works to protect all forms of life–human, animal, plant–and the Earth as a whole.
[...]The prosecution claimed that the shot which killed Faulkner came from Mumia Abu-Jamal’s legally registered .38-caliber weapon, contradicting the medical examiner’s report that the bullet removed from Faulkner’s brain was a .44-caliber. This fact was kept from the jury. Moreover, a ballistics expert found it incredible that police at the scene failed to test Mumia’s gun to see if has been recently fired, or to test his hands for powder residue. One of the most damning prosecution claims was that Mumia confessed at the hospital. However, this confession was not reported until nearly two months after December 9th, immediately after Mumia had filed a brutality suit against the police. One of the officers who claims to have heard the confession is Gary Wakshul. However, in his police report on that day he stated, “the Negro male made no comments.” Dr. Coletta, the attending physician who was with Mumia the entire time, says that he never heard Mumia speak.
The star prosecution witness, a prostitute named Cynthia White, was someone no other witness reported seeing at the scene. During the trial of Billy Cook (Mumia’s brother) just weeks before Mumia’s trial, White gave testimony completely contradictory to what she stated at Mumia’s trial. Her testimony at Billy Cook’s trial placed someone at the scene who was not there when police arrived. This corroborates the other five witness accounts that someone fled the scene. In a 1997 hearing, another former prostitute, Pamela Jenkins, testified that White was acting as a police informant. Other sworn testimony revealed that witness coercion was routinely practiced by the police. In 1995, eyewitness William Singletary testified that police repeatedly tore up his initial statement–that the shooter fled the scene–until he finally signed something acceptable to them. The following year, witness Veronica Jones came forward to testify that she had been coerced into changing her initial statement that two men fled the scene. Witness Billy Cook, who was present the whole time, has stated very clearly that Mumia is absolutely innocent.
Due to police manipulation of witnesses, fabrication of evidence, and the rights of the defense severely denied, Mumia was found guilty. He was sentenced to death during the penalty phase based solely on his political beliefs. Mumia has been unjustly separated from his family for twenty-two years, with the threat of death looming over his head.
The U.S. Court of Appeals for the Third Circuit reviewed Abu-Jamal’s case, and they affirmed the federal district court decision to conduct a new sentencing hearing and invalidate the death penalty sentence, rather than award Abu-Jamal a new trial. (Via Xicano Power.) Robert Bryan, the lead counsel for Abu-Jamal, spoke with Juan Gonzalez and Amy Goodman of Democracy Now about the pros and cons of the court’s decision:
On the one hand, the death penalty—the court threw out the death penalty in this case, even though Mumia remains on death row today, and if the state appeals or seeks further relief, nothing will change, at least for the present. The court did order a new jury trial on the issue of whether he should be on death row. In effect, what they did, as I said, was throw out the death penalty. So that’s the good part of the decision. And having done this type of work defending people facing the death penalty for over three decades, I can tell you any time the death penalty gets thrown out is a real victory.
On the negative side, as Juan just pointed out, the jury—the court ruled against granting a new jury trial on the issue of guilt and innocence. And we were rather astounded that the court made that ruling. The silver lining to that ruling, to that dark cloud, is that it was a split court. We were before three judges. Two judges ruled against us; a third judge, Judge Ambro, rendered a forty-one-page dissent in which he strongly criticized the majority and said that racism was a work in this case, that racism—that the prosecution engaged in removing people of color, African Americans, from sitting on the jury of Mumia Abu-Jamal.
For some brief background, before the start of a trial, the prosecution, defense, and judge conduct a process of jury selection called the voir dire. A pool of potential jurors enter the courtroom (thinking of excuses to get out of serving), and the judge or the lawyers ask the potential jurors questions about their abilities to decide the case in question fairly and impartially. In most jurisdictions, the lawyers can ask questions — Maryland, which is in the minority on this issue, has the judge ask potential jurors questions.
During this process the prosecution and defense have two mechanisms for eliminating jurors from the panel until they receive the final 12 triers of fact: challenges for cause and peremptory challenges. Challenges for cause are unlimited, and they are used when the lawyers and/or judge determine that a juror’s conscious or unconscious biases will affect his/her impartiality. Peremptory challenges, however, are limited depending on the type of case before the jury. Peremptory challenges can be used for any reason by either side. In crimes carrying the possible penalty of death, the peremptory challenges are very high and the voir dire is more stringent.
The exclusion of people from juries on the basis of race via peremptory challenges has affected the state and federal court system through a large portion of United States jurisprudence. Prosecutors would routinely strike black Americans from the juries of black defendants using peremptory challenges; as a result the trial, conviction, and sentencing would not be determined by a proper jury of the defendant’s peers.
The seminal case that outlawed this practice of excluding people from juries on the basis of race is Batson v. Kentucky, 476 U.S. 79 (1986). The Court at that time articulated a test where defendants could challenge the prosecutor’s peremptory challenges if it followed a pattern of removing members of a certain race from the panel. Upon being challenged, the judge asks the prosecutor to go back and give legitimate reasons for striking the jurors removed. If the prosecutor cannot provide satisfactory reasons, the jurors stricken are reinstated.
Getting back to Abu-Jamal’s case, Robert Bryan notes in the Democracy Now interview that the Supreme Court reinforced the principles of the Batson case earlier this month in its decision in Snyder v. Louisiana, 128 S. Ct. 1203 (2008). Justice Alito, who wrote the majority opinion for the court, reinforces the importance of upholding the general principles of Batson:
As previously noted, the question presented at the third stage of the Batson inquiry is “‘whether the defendant has shown purposeful discrimination.'” The prosecution’s proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent.
[...]In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. [...]We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.
However, the Third Circuit decision in Abu-Jamal’s case does not take the extra step to order a completely new trial for him — only to have his sentencing redetermined by a new jury.
But since the jury during the course of a normal jury trial decides the defendant’s guilt and innocence, as well as recommends a sentence of life or death, why won’t Abu-Jamal’s entire case — guilt or innocence determination included — be reevaluated in a new trial by a new jury?
The poor logic in this case reminds me of the poor logic of the University of Michigan in denying tenure to Andrea Smith, an eminent Native American feminist scholar.
Jointly appointed in the Program in American Culture and the Department of Women’s Studies, Dr. Smith’s body of scholarship exemplifies scholarly excellence with widely circulated articles in peer-reviewed journals and numerous books in both university and independent presses including Native Americans and the Christian Right published this year by Duke University Press. Dr. Smith is one of the greatest indigenous feminist intellectuals of our time. A nominee for the 2005 Nobel Peace Prize, Dr. Smith has an outstanding academic and community record of service that is internationally and nationally recognized. She is a dedicated professor and mentor and she is an integral member of the University of Michigan (UM) intellectual community. Her reputation and pedagogical practices draw undergraduate and graduate students from all over campus and the nation.
With this type of record, the reasons for denying tenure seem incomprehensible. However, the fabric of Andrea Smith’s work consistently challenges the racism, sexism, colonialism, and systematic disenfranchisement and violation of Native Americans at the hands of the United States and its supporting institutions. (See her published work, Conquest: Sexual Violence and American Indian Genocide, as an example.) This trend of radical thought and activism, when considered along with the fact other women of color professors at the university being denied tenure, indicates a more invidious reasoning is afoot for these decisions.
Comparatively, since Abu-Jamal’s incarceration and long wait on death row, he has written a series of published works about the nature of his imprisonment, his life on death row, and the legitimacy of the operation of the U.S. criminal justice system. His lawyer thinks, and I agree, that the reluctance of the court to award a new trial for Abu-Jamal stems from a reluctance to accord any substantial benefit to him because of the body of his work, despite the fact the remedy would be entirely appropriate considering the prior history of his case:
What’s interesting about this decision yesterday, and Judge Ambro raised this question twice in his forty-one-page dissent, and that is, why is this case being treated differently from other cases? Why is the majority, the other two judges, treating this case differently? It’s what we often think of as the Mumia exception. And that is, the law is one thing for everyone else, but the courts seem to strive to carve out an exception for Mumia Abu-Jamal, because obviously he’s outspoken, he’s very critical of the establishment. And I might say that the big issue lingering over all of this is that he is absolutely not guilty of murder.
The overarching result of this decision is Mumia Abu-Jamal gets the option between facing death (again) or receiving life in prison, even if his attorney presents exculpatory evidence that proves his innocence. On what planet is this choice just?
Why is it seemingly a facet of this system that if you challenge its illegitimacy or its flaws — within its logic, using its rules, with acknowledgment of the paths constructed to allow everyone following them a fair chance at life — its response results in more erosion of its so-called just and neutral foundation? I hold little doubt that the penalties lodged against Abu-Jamal and Smith stem from their work to criticize and to expose the history and cycle of unjust and immoral practices this society encourages daily. And it’s sickening to be raised under such high ideals about this country’s capabilities when its foundation can’t even face up to its own history, its own consequences from the bloodshed implanted into its legacy.
The criminal justice system of the United States, along with many of its other institutions, needs redemption and transformation desperately. It needs restoration and drastic transformation into a system that truly tries and judges people accused of crimes fairly and impartially, granting the appropriate remedies and levying the appropriate punishments when required. And Mumia Abu-Jamal’s case is one of many cases that proves our system has a long road to travel before it reaches its highly lauded standards of due process and equal protection under its laws. Through its everyday application, these guarantees of rights, justice, and liberties seem to exist for people only in this country’s deluded idealizations of itself.