Incarceration Nation

Two Wins for Mumia Abu-Jamal

By Rachel Wolkenstein

After testing on March 31, 2017 showed Mumia Abu-Jamal had stage-four cirrhosis, an irreversible scarring of the liver caused by his untreated Hepatitis C, the Pennsylvania Department of Corrections (DOC) conceded and Mumia was informed that they would begin treating him with the Hepatitis C cure. Now, other prisoners are filing lawsuits against the DOC for Hepatitis C treatment based on the precedent set in Mumia’s case.

First legal step won in Mumia’s new challenge to his conviction!

On August 7, 2016 a new legal action was filed on behalf of innocent prisoner, Mumia Abu-Jamal, in the Pennsylvania Court of Common Pleas by attorneys Judith Ritter and Christina Swarns of the NAACP Legal Defense Fund. This action is a path to overturn Mumia’s conviction and win his freedom. Last June the U.S. Supreme Court issued a precedent-setting decision, Williams v. Pennsylvania, 136 S.Ct. 1989 (2016), holding that it is a violation of the due process right to an impartial tribunal free of judicial bias if a judge participating in a criminal appeal had “a significant personal involvement as a prosecutor in a critical decision” in a defendant’s case. The remedy: a new appeal without the participation of the judge, who should have recused (removed) himself from the appeal process.

The Pennsylvania Supreme Court Justice with a dual role as prosecutor and then judge in the Williams’ case is Ronald D. Castille. The Williams case precedent applies fully and directly to Mumia Abu-Jamal’s case, as well as others in Pennsylvania and nationally.

Castille was the elected Philadelphia District Attorney during Mumia’s direct appeal in 1988, responsible for all the legal briefs and arguments presented by the District Attorney to the Pennsylvania Supreme Court to uphold Mumia’s conviction and death sentence. Then, elected as a Justice of the Pennsylvania Supreme Court in 1994, Ronald D. Castille denied every one of Mumia’s appeals of his post-conviction challenges from 1995-2008.

A court hearing on the new legal action was held on April 24, 2017, Mumia’s 63rd birthday, before Judge Leon W. Tucker, the supervisory judge of the Philadelphia Court of Common Pleas. The courtroom was filled with Mumia’s supporters and demonstrators rallied outside and all day and into the evening demanding Mumia’s freedom. Ronald Eisenberg, Deputy District Attorney, appointed by District Attorney Castille in 1986 to oversee all criminal appeals, represented the District Attorney. Since then, he has overseen all district attorney legal actions opposing Mumia’s appeals.

Eisenberg argued Mumia’s petition should be dismissed by the judge on the grounds the Williams case is not retroactive (not applicable to cases like Mumia’s that were decided before the Williams case) and that the one year time period for Mumia to file new appeals passed decades ago. The DA also argued that even if Judge Tucker decided Mumia’s appeal is timely; there is no evidence that Pennsylvania Supreme Court Justice Ronald Castille had been involved in Mumia’s case while he was the District Attorney from 1986-1991 or as a senior district attorney during Mumia’s 1982 trial. Mumia’s attorney, Christina Swarns (LDF) acknowledged several times that there was no direct evidence of Castille’s personal involvement in Mumia’s case, as was presented in the Williams case. Swarns also addressed the exceptional circumstances of Mumia’s case and that the DA’s office had misrepresented Castille’s involvement in other cases. A motion for Discovery was made for the DA to turn over its files on Mumia’s appeals to determine what particular action and decision Castille took in Mumia’s case.

District Attorney Eisenberg objected with a dissertation on the Pennsylvania Legislature’s passage of the Post Conviction Relief Act in 1996 that established the “timeliness” requirements and that access to the appellate courts had to be limited, stating, “At some point you just have to draw the line.” Attorney Swarns responded that the standard for due process violations is that they have retroactive application. And that Mumia is entitled to the full protections and relief provided under due process. She invoked Supreme Court Justice Brennan’s dissent when the death penalty was upheld in the McClesky case (where it was proven that the death penalty was imposed against African Americans four times more than against whites,) saying this was “fear of too much justice for Mumia Abu-Jamal.) She concluded her argument with the demand for discovery of the prosecution’s files stating, “If the review shows that Castille wasn’t involved, then we won’t need to be concerned about how much justice Mumia Abu-Jamal receives.”

Just four days later, on April 28th, Judge Tucker issued a ruling. It did not accept the prosecution’s argument to dismiss Mumia’s petition. He granted this discovery and ordered the DA’s office to produce and turn over all records and memos regarding Castille’s involvement in Mumia’s case; pre-trial, trial, post-trial and direct appeal proceedings; communications between Castille and his staff and any public statements Castille made about Mumia’s case during or after his tenure as District Attorney of Philadelphia. These records are to be turned over to Mumia’s attorneys by May 30, 2017, and Mumia has fifteen days to file amendments to his post-conviction petition.

Finally a win

This is an unquestionable win for Mumia in the Pennsylvania courts. It is the first ever order to the Philly DA’s office to open prosecution files on Mumia’s case to him. The DA’s office will likely stall and appeal and we should be prepared for protestations that the records do not exist. But we know the following:

We know that Castille was elected DA in 1986 with the support of the Fraternal Order of Police (FOP). Lodge No. 5 named Castille its “Man of the Year” and gave financial and public support to him in 1989 for his re-election. In 1993 Ronald Castille won a seat on the Pennsylvania Supreme court as the “law and order” candidate, endorsed by the FOP with 36,000 police officers. Castille bragged that his office had secured 45 death sentences—one of those death sentences was to Mumia Abu-Jamal—and that he prosecuted some of the city’s most “notorious criminals.”

Castille was also a vociferous defender of a pattern of prosecutorial misconduct that was so prevalent in his office that it was criticized in the Pennsylvania appeals court, blaming alleged misconduct on the “pushy, obnoxious” defense lawyers. Two of the Philadelphia prosecutors found to commit misconduct by the appeals court in cases unrelated to Mumia’s were the Assistant District Attorneys in Mumia’s trial (Joseph McGill) and 1995 hearing (Charles Grant).

Moreover, Mumia’s appeals were based on new law decided by the U.S. Supreme Court since his 1982 trial on the right to a jury in which African-Americans were not excluded because of their race (Batson v. Kentucky, 476 U.S. 79 (1986)) and that a prosecutor cannot undermine the jury’s fundamental responsibility as decider for a defendant’s death sentence. (Caldwell v. Mississippi, 472 U.S. 320 (1985), followed by Commonwealth v. Baker, 511 Pennsylvania. 1, 511 A.2d 777 (1986).)

Mumia’s main legal arguments on his 1988 appeal included that the prosecutor excluded African-American jurors; put Mumia’s Black Panther Party membership and statements as a teenager to the jury, arguing this was evidence he had always intended to kill a police office. In summation the prosecution argued to the jury that it could sentence Mumia to death even if jurors were not convinced, because Mumia would have “appeal after appeal after appeal” and that Pennsylvania hadn’t executed anyone in twenty years. Castille was responsible as District Attorney to construct and present legal arguments to the Pennsylvania Supreme Court that those U.S. and Pennsylvania Supreme Court precedents were not relevant in Mumia’s case.

One of Castille’s “accomplishments” as District Attorney was the 1986 video training tape for prosecutors made in response to the new Batson decision. It taught prosecutors how to exclude African-Americans from juries and how to conceal that exclusion from defense attorneys and the court record. The first frame of the video bears the seal of the City of Philadelphia, name and title of Ronald D. Castille, District Attorney and the logo of DATV Production identifying the videotape as produced by the District Attorney’s television production department.

The existence of this training tape did not become publicly known until 1997. During the time that Ronald Castille was preparing the District Attorney’s legal briefs to uphold Mumia’s conviction and death sentence and while Castille sat as Justice on the Pennsylvania Supreme Court hearing arguments against the unconstitutional exclusion of African-Americans from Mumia’s jury, Castille’s direct personal responsibility for the DATV Jury Training Videotape confirming and continuing the policy of exclusion of jurors on the basis of race was denied and suppressed.

Mumia brought legal action for Castille to recuse himself from participating as a judge in appeals to the Pennsylvania Supreme Court in 1996 and again in 2002 because Castille was biased, pro-death penalty, pro-prosecution and supported by the FOP. Castille denied Mumia’s motions, stating he had no conflict of interest and no direct knowledge of Mumia’s case.

An examination of the prosecution files on Mumia’s case will show that Castille was personally involved in securing the 1998 Pennsylvania Supreme Court decision affirming Mumia’s conviction and death sentence. Castille did not disclose his involvement with the DATV training tape on how to keep African Americans off the jury when the motions for his recusal were made in 1996 and 2002.

Under Williams, all of Mumia’s appeals to the Pennsylvania Supreme Court from 1995-2012 should be dismissed and a new appeal made to the Supreme Court without Ronald Castille’s participation. In other words, Mumia would be able to re-appeal the entirety of his conviction before the Pennsylvania Supreme Court beginning with the fact that his pro-cop, pro-death penalty trial judge Albert Sabo was racially biased. Sabo declared before trial, “I’m going to help them fry the nigger.”

Mumia could also re-appeal the prosecution’s intentional exclusion of African-Americans from his jury; the Prosecution’s summation argument that Mumia would have “appeal after appeal” depriving him of the constitutional standard of guilt beyond a reasonable doubt and the importance of the jury decision in determining guilt and a death sentence; denying Mumia the right to self-representation and to be in the courtroom during his trial; ineffective assistance of trial counsel; Police and prosecutorial fabrication of evidence of guilt—false hospital confession, phony ballistics evidence, lying witnesses Cynthia White, Priscilla Durham, Robert Chobert—and suppression of evidence of Mumia’s innocence—Veronica Jones, Dessie Hightower, William Singletary, Ken Freeman, Arnold Howard, and the confession of Arnold Beverly.

The prosecutorial and judicial misconduct that underlies Mumia’s case will be exposed. This new legal proceeding is a path towards Mumia’s freedom; we can win Mumia’s freedom with mass international protest and publicity

We cannot rely on the purported justice of the courts, or promises of a new DA who says he will investigate cases of “wrongful conviction” or that of politicians and others who say that Mumia deserves a “fair trial.” Mumia should never been arrested and convicted. It was a politically motivated and racially biased trial of an innocent man. It will take international mass protest, including labor organizations worldwide, to take up the fight for Mumia’s freedom as part of the struggle against Black oppression, political repression, class bias and U.S. imperialist interventions. As part of this international struggle, we can win Mumia’s freedom.

—May 2, 2017