On Thursday, March 27, the 3^rd U.S. Court of Appeals decided to lift the death sentence against Mumia Abu-Jamal and deny him a new trial.

The lifting of the death sentence is a big victory for the movement against the death penalty and for the life and freedom of Mumia.

That the court denied Mumia a new trial is a bitter defeat.

The defense will now seek a decision by the full court instead of the three judge panel that handed down the March 27 decision.

So all is not lost and the struggle continues.

A hopeful sign was that one of the three judges dissented and wrote a 41-page commentary in which he criticized the decision of his colleagues.

In its decision, the 3^rd Court of Appeals has followed the precedent of other courts from the Court of Common Pleas in Philadelphia to the U.S. Supreme Court in deciding one way in a host of cases, and another way in the case of Mumia Abu-Jamal.

The clearest such case was in the early 1990s when the U.S. Supreme Court granted a neo-Nazi prisoner a new sentencing hearing since the prosecutor had used the defendant’s membership in the ultra-violent, racist prison gang Aryan Brotherhood to argue for the death penalty, but denied such relief to Mumia even though the prosecutor in his case had argued for Mumia’s execution merely because he had been a member of the Black Panther Party – 12 years before the trial!

There are multiple other examples of this sort where the courts singled Mumia out for special treatment – and always to his disadvantage.

In the present stage of Mumia’s case, the court once again did so with regard to Mumia’s claim of racism in the jury selection. Generally, to be granted at least a hearing on this issue, the defendant must make a so-called “prima facie” case that the prosecutor excluded jurors because of their race.

Generally, the threshold for such a prima facie case is quite low, and mere statistics – black potential jurors were statistically at least 10 times as likely to be excluded by the prosecutor than white potential jurors – and a whole array of other evidence should certainly have been enough to make such a prima facie case for Mumia.

Not so for the 3^rd Circuit Court majority. It does not even discuss the possibility that it might not have been a good idea to exclude blacks with a ten times greater likelihood than whites. Rather, it points to all sorts of data that Mumia allegedly did not supply, citing the resulting lack of information as the reason to deny an evidentiary hearing – as if such an evidentiary hearing were not supposed to supply exactly information of this sort!

In other words, the two majority judges do not seem overly concerned that an evidentiary hearing might reveal information that would convince even them that racism prevailed during the selection of Mumia’s jury. Once more, Mumia is singled out for “special treatment” and denied relief.

The court also denied Mumia’s other two claims for a new trial or post-conviction hearing, citing similar allegedly purely formal grounds.

The myriads of formalism in which this decision drowns elementary considerations of justice cannot hide the fact that it was not these formalisms that produced the decision. It was a political decision, a decision designed to please the powers that be, in Philadelphia and Pennsylvania.

If the court’s decision is allowed to stand, the consequences for other prisoners will also be severe.

The court will then have sent a message that 1) racism in jury selection is so harmless and tolerable that you need an unachievable mountain of evidence to get relief, 2) that prosecutors can deceive the jury at will about its responsibility, as Mumia’s prosecutor Joseph McGill did when he asked the jury to convict the defendant since in that case he will have “appeal after appeal” anyway, whereas if acquitted he will be able to simply “walk out,” and finally, that 3) a behavior as blatantly unfair as original trial judge Albert F. Sabo’s behavior during the 1995-97 post-conviction hearings is also tolerable since it is not in the domain of federal courts to review it (this is the reason given in the decision to deny relief in that particular point).

The March 27 decision by the 3^rd Circuit Court marks a sad day not only in the struggle for Mumia, but also in the general struggle for the rights of defendants in court and for civil and human rights.

But this is not the final word. As I said above, the struggle goes on, in the legal as well as in the political arena. This is not the moment to give up, but rather, to intensify our fight, for truth, justice, and the life and freedom of Mumia Abu-Jamal.

Michael Schiffmann for the

German Network Against the Death Penalty and to Free Mumia Abu-Jamal