Within the next few days, President of the Philadelphia Court of Common Pleas, Judge Pamela Dembe will likely rule on Mumia Abu-Jamal’s pro se motion challenging her secret sentence of Mumia to life imprisonment without parole. Given Judge Dembe’s decade-long record of rejecting consideration of any new evidence in Mumia’s case, it is safe to assume that she will perfunctorily deny Mumia’s challenge, and deny him the opportunity to further legal argument and an evidentiary hearing.

It was Judge Dembe who deemed it irrelevant and refused to hold an evidentiary hearing when it was disclosed that on the eve of Mumia’s trial, Judge Albert Sabo, the trial judge and PCRA judge ruling in the hearings from 1995-1998, admitted his bias and racism with his declaration, overheard by a court stenographer, “Yes, I’m going to help them fry the n—–.”

Mumia’s sentence was secretly imposed on August 13, 2012 —in flagrant violation of constitutional and PA statutory law, intended to foreclose Mumia’s right to challenge his sentence to “slow death row,” life sentence without parole. Mumia learned about the secret sentencing and filed his challenge on August 23, just in time to meet the jurisdictional period for filing a post-sentence motion. The PA rules of criminal procedure say the judge should rule within ten days of Mumia’s August 23 filing of the motion. Mumia has the right to appeal any denial of his motion opposing the illegal sentencing process and his life sentence.

Had Mumia been notified of the impending sentencing, he would have argued for immediate release from prison pursuant to a motion for extraordinary relief based on thirty years of solitary confinement on death row pursuant on an illegal sentence. The last decade on death row was after the federal court ruling in December 2001 overturning Mumia’s death sentence as illegal and unconstitutional. Mumia had the legal right to raise in court before his sentencing that this tortuous treatment of keeping him in solitary confinement under an illegal death sentence was a continuation of the government misconduct – falsified evidence and coercion of witnesses– that resulted in his conviction and death sentence for a crime he did not commit. His decade in solitary confinement, while the DA tried to get the death sentence reinstated by the Federal Court of Appeals and U.S. Supreme Court, was retaliation against Mumia for not being silenced.

Further, Mumia’s motion for extraordinary relief, made prior to sentence would have included a constitutional challenge to life imprisonment without parole as a violation of the Eighth Amendment prohibition against cruel and unusual punishment, the Pennsylvania Constitution’s prohibition against cruel punishments, evolving standards of decency and international law. Judge Dembe’s secret sentencing was intended to strip Mumia of his legal right to make these challenges to the state’s continuing vendetta against him.

Mumia, in his post-sentence motion, has now made the challenge to his own sentence to slow death row and for all those who are sentenced to life imprisonment and suffer the additional torture of solitary confinement. The significance of Mumia’s court challenge is powerfully stated by Bret Grote, September 3, 2012. Bret is the investigator for HRC (Pennsylvania Human Rights Coalition), who is also providing legal assistance on these matters. “In challenging the authority of the state of Pennsylvania to sentence him to die in prison, Mumia Abu-Jamal has established a point of convergence for those men and women who are fighting for their lives and dignity within the vast and suffering colony that is the U.S. prison system.

Declaring that the imposition of a sentence of life without the possibility of parole after having spent thirty years of solitary confinement on death row pursuant to an unconstitutional death-sentence to be in gross excess of the quantum of state-inflicted pain and suffering permitted under the Eighth Amendment to the U.S. Constitution, the appeal resonates and intersects with other forces fighting against the power of the state to impose permanent, devastating, and lethal forms of violence against those people and communities it deems disposable or threatening….

In challenging his sentence, Mumia has created a broad, unifying platform that creates space for all those who are fighting state torture, death rows and death sentences, life without parole, and the venal and despicable ideologies that sustain them.
For these reasons it is incumbent upon all those who aspire to inhabit a world worth living in to re-dedicate ourselves to the struggle for Mumia’s freedom and the freedom of all from the clutches of state terror, as these struggles are one and the same.”

A Legal Post-Script on Mumia’s Due Process Rights at Sentencing

The first issue raised in Mumia’s August 23, 2012 post-sentencing motion states: (1) The imposition of the sentence of life without parole on August 13, 2012 was in violation of the fundamental requirements that must be adhered to under Pennsylvania state law and the United States Constitution and as such was illegal and should be considered null and void.

Sentencing is not a simple administrative proceeding or ministerial act. Under the United States and Pennsylvania Constitutions defendants’ right to due process prohibit the sentencing of a defendant without notice and the opportunity to be present and heard prior to the imposition of sentence. These are fundamental and unequivocal rights. The right for a defendant to be present at all critical stages of the trial process, including sentencing, is well established under the United States and Pennsylvania constitutions. See, Illinois v. Allen, 397 U.S. 337 (1970), Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194(1973), United States v. Faulks, 201 F.3d 208 (3rd Cir. 2000), Commonwealth v. Thomas, 553 A.2d 918 (Pa. 1989), Commonwealth v. Vega, 719 A.2d 227 (Pa. 1998), Commonwealth v. Faulk, 928 A.2d 1061 (Pa. Super 2007), and Commonwealth v. Williams, 9 A.3d 613 (Pa. 2010).

This is a fundamental procedural guarantee that applies to re-sentencing after an initial sentence has been vacated. “The defendant’s presence at sentencing is a deeply rooted procedural protection and no mere formality. We see no reason why that principle should not carry full force at a resentencing.” U.S. v Faulks, supra, United States v. Moree, 928 F.2d 654 (5th Cir. 1991)

Mumia’s right to be present and apprised of his rights at a sentencing proceeding are mandated under the laws of the Commonwealth of Pennsylvania. Pa. R. Crim. P. 702 (c) (1) states, without exceptions, “At the time of sentencing, the judge shall afford the defendant the opportunity to make a statement in his or her behalf and shall afford counsel for both parities the opportunity to present information and argument relative to sentencing.”

In Mumia’s case his death sentence was overturned and the sentence vacated. The federal court order mandated the Commonwealth to conduct a new sentencing trial or alternatively to impose a sentence of life imprisonment. The choice was left to the Commonwealth of Pennsylvania. The sentencing had to be carried out pursuant to Pennsylvania law. Mumia’s legal challenge to the clandestine imposition of a life sentence against him is a statement that the state will be fought whenever they attempt to deny him his constitutional rights.

The entirely of the court proceedings convicting Mumia and upholding his frame up conviction were imbued with violation of his rights to due process. To name but a few from the 1982 trial itself: excluding Mumia from my trial, including while he was representing himself; then denying him the right of self-representation; removal of qualified Black citizens from the jury; holding an in camera hearing with police officers who had information concerning who shot Mumia and when, contrary to the prosecution’s version; manipulation and falsification of the crime scene; falsification of ballistics evidence; coercion of trial witnesses to lie on the witness stand; and fabrication of a confession Mumia never made.

The imposition of the life sentence was intended to go unnoticed. In addition to no prior notification of Mumia or his counsel of record, the Docket Sheet of Mumia’s case is listed under the name, “Wesley Cook.” This is despite the fact that Mumia’s name was legally changed in the late 70’s to Mumia Abu-Jamal. All of the court decisions on Mumia’s case listed as, “Commonwealth vs. Abu-Jamal.” Nor does Judge Albert Sabo’s name appear in the docket record.

On August 20, 2012 when it was made known to Judge Dembe that she had been caught out in this illegally and unconstitutionally imposed sentencing, there was a telling but futile attempt to “correct” the record. The court docket sheet has been altered. It now indicates that a notice dated August 21 of the already imposed sentence (August 13) was mailed to counsel of record, the District Attorney and to Mumia (in the name Mumia Abu-Jamal, not Wesley Cook). The notice received by Mumia was mailed to him on August 22, 2012 and received by him on August 24, 2012, a day past the jurisdictional deadline to file a post-sentencing motion!

In addition the Docket Sheets on Mumia’s case were changed as to the dates of recording the Order of Judge Yohn directing the Commonwealth to uphold his decision vacating the death sentence. It also changed the wording of the order sentencing Mumia to life imprisonment. The President Judge and the Clerk of the Court have some reason to think that this corrects the illegal sentencing.

The secret sentencing and attempt to preclude Mumia from challenging his life sentence was yet another attempt to silence Mumia—having been defeated and denied a “legal lynching” they want him to rot away in prison. Our fight continues to be for Freedom for Mumia, as part of the fight for liberation of all mankind.

from press statement


Rachel Wolkenstein
5 September 2012 917 689 4009