------- Forwarded Message Follows ------- Date: Mon, 22 Dec 1997 14:48:02 -0800 (PST) From: MichaelP <papadop@PEAK.ORG> To: "invisible.names":; Subject: RE; Mumia free-speech from death row appeal
At times during the course of Mumia's incarceration, the authorities made excuses to open his mail and to forward it to the Gov. of PA, who was about to sign his execuiton warrant. The contents were opened on the excuse that Mumia was conducting an illegal business, and what was opened included communications to his atorney(s).
Now read on. ============================= Notes from Appeal Hearing on Mumia Abu-Jamal's Civil Suit Rough Notes from Appeal Hearing on Mumia Abu-Jamal's Civil Suit U.S. Court of Appeals for the Third Circuit, Philadelphia, 12/8/97 by Debbie Lang, Revolutionary Worker/Obrero Revolucionario (This is not a complete transcript or analysis, just some highlights with a few editorial comments) The purpose of the appeal was to challenge the lower court's decision on three issues: Mumia's access to the media and right to function as a journalist, Mumia's right not to have his legal mail opened by prison authorities, and Mumia's right to have access to paralegals. The case stems from events in 1994 and 1995, leading up to, during and just after Mumia's Post-Conviction Relief Appeal. This includes the period from June to August 1995 when Mumia was under an active death sentence. Mumia was punished for "operating a business from prison" (journalism). This excuse was used to open sensitive confidential legal mail and then his paralegals were banned from SCI Greene, effectively cutting Mumia off from his attorneys and supporters outside. Attorney Jere Krakoff argued the appeal before the federal court. The way this process works is the defense has 30 minutes to present arguments in addition to the appeal brief already filed and during that time the judges question the defense attorney. Then the prosecution responds and again the judges raise questions. Finally, the defense has an extremely short time to respond. Then it's over and the judges decide and let both sides know when they've reached their decision, which Attorney Krakoff anticipated would probably be a month or two. The First Claim -- Opening Mumia's Confidential Legal Mail Krakoff began with the issue of the opening of Mumia's mail. He pointed out that in 1994 and 1995 10 pieces of mail were opened, read, copied and distributed outside the DOC (Department of Corrections) including two letters containing sensitive legal strategy for Mumia's PCRA hearing. "The injury that results allows a net to be cast, a very wide net and it permits very sensitive information about a man on death row" to get into the authorities' hands. Attorney Krakoff pointed out that the only time authorities had a right to open confidential legal mail was when it could pose a threat to prison security. Prison authorities used the excuse that Mumia was "engaging in a business or profession", (the publication of Live from Death Row), to open his mail. Krakoff pointed out that engaging in a business or profession is a disciplinary infraction "equivalent to horseplay or smoking in an unauthorized area", yet "the [lower] court took the position that if the DOC believed Jamal was engaging in journalistic activities, they can open his mail". Judge Samuel A. Alito, Jr. asked, "What if the authorities have a reasonable suspicion to believe that mail is being used to carry out a business or profession other than journalism?" Attorney Krakoff pointed out that Mumia has a constitutional right to privacy and free speech and later added that prison authorities only have a right to open mail if it there is "misconduct of such a nature that it jeopardizes institutional security" Judge Richard L. Nygaard asked, "Is there evidence of any other businesses or professions that may be protected while a person is incarcerated?" Attorney Krakoff cited the example of a prison at Huntington Prison who published a book with the assistance of prison authorities, who helped him arrange a radio talk show to publicize the book. The Second Claim -- The Right of Mumia's Paralegals To Visit Him Here, Attorney Krakoff described Mumia's paralegals as "unpaid volunteers who used to go in, review materials and locate witnesses". He explained that many eyewitnesses and witnesses needed to be identified and contacted and that Mumia's legal team needed people who could visit the prison and help in this capacity. Attorney Krakoff said there was a "new rule created for Mr. Jamal" -- the DOC refused to allow the paralegals designated by Mumia's legal team to enter the prison unless they could show licenses, an employment contract or agreement and that they were being paid. Attorney Krakoff called this a "two headed dragon" -- Mumia could not communicate with his legal team by mail because prison authorities were opening it and his paralegals were denied access. The Third Claim -- The Denial of Access Based on the "Argument" That Mumia Conducting A Business or Profession from Prison This was mostly discussed in the context of the other two, since it was a key part of the excuse the authorities used especially for opening his mail, but also to a certain extent in denying his paralegals entrance to the prison. The Commonwealth's Response The deputy attorney general representing the DOC, Amy Zapp, claimed that the while Mumia's legal mail was copied and sent out of the prison, there's no evidence that Governor Ridge, who signed his death warrant in June of 1995, ever saw it. The judges' questions indicated they may have decided that the forwarding of Mumia's legal mail all the way up to the governor's office was so outrageous they would rule his mail should not be read by the authorities under the conditions they specified. Judge Nygaard said he was "appalled that matters of defense strategy could leak out to those who would be sitting across from him [Mumia] in court". Judge Alito said, "Shouldn't there be something to wall off the authorities from reading [legal] mail?" Zapp continued to insist that there is "no evidence this was communicated to anybody else" and that the mail was opened because there was "suspicion of a breach of institutional rules and regulations". One of the judges, Nygaard, referred to the "chilling" effect this might have on other prisoners. The judges asked Zapp a serious of questions about the first amendment issues surrounding the claim that the publication of "Live From Death Row" was "conducting a business or profession from prison", a violation of prison rules. Alito wanted to know what this meant and if to fit the designation he would have to be paid. Zapp said if he is working as a journalist, whether he is being paid or not, he's violating the rules. This is the first time the commonwealth has said their rule applies to UNPAID journalism. Specifically, Zapp said it "covers unpaid writing that is done in the furtherance of a career". In other words, if this stands, Mumia could now be punished for anything he writes, even a short column. Zapp had a hard time answering some of the judge's other hypothetical questions about this rule: what if someone were a mystery novelist and sent to jail, what if someone were writing letters and they were published. Judge Donald P. Lay, Sr. Asked, "Would you do the same if he were writing recipes rather than telling people how cruel and difficult life on death row is?" Zapp stammered over and over again, "It depends on the circumstances of the case". When Alito asked if Mumia was "over the line when he wrote for the Yale Law Journal" and if this was "practicing a business or profession", Zapp revealed the real motivation of the state -- to silence Mumia. Zapp said "technically" Mumia was over the line with the Yale Law Journal article but that it wasn't clear this was practicing a business or profession until they saw a "pattern and course of conduct to act as a journalist". In other words, as Mumia's case became more widely known and he got more support, as he prepared his Post-Conviction Relief Appeal and as Governor Ridge prepared to sign a death warrant, the state acted to cut Mumia off from his legal team and supporters outside. As to the paralegals question, Zapp claimed that they suddenly demanded credentials and an employment contract to ensure that the volunteers presenting themselves as paralegals were actually acting in that capacity. This, even though they observed paralegal volunteers holding legal documents up to the glass for Mumia to read. Closing Attorney Krakoff was given a very short time to rebut the commonwealth's arguments and was again questioned by the judges. Among other things, he pointed out that prison authorities knew Mumia had been writing since at least as far back as 1991 and had done nothing to stop it. He made the point that Mumia had a first amendment right to write, as did other prisoners. He was repeatedly question about "where do you draw the line" on what would be allowed, in particular whether or not a prisoner could be paid for writing and argued that Mumia should be allowed to write AND be paid for his writing. He posed a hypothetical question, what if Martin Luther King had wanted to write a letter from the Birmingham jail, have it published and donate the funds? Transcript of Interview with Mumia's Attorney Jere Krakoff Outside Federal Court After Arguing The Appeal in Mumia'S Civil Suit, Philadelphia, 12/8/97 Transcript by Debbie Lang, reporter for Revolutionary Worker/Obrero Revolucionario JERE KRAKOFF: Somebody was asking me about what happens from here? Okay, well, they'll make a decision. Hopefully it'll be a good opinion and it could take, I think this could take a couple of months because there are three issues. So it could be two or three months, it could be longer, it could be shorter. Question: Could you just break down the three issues? JERE KRAKOFF: Yeah, one of them was the authority of the state to invade his legal mail, which they've done repeatedly, to open the legal letters and read them. The other is the legality of barring the paralegals from the institution and the third is the authority of the state to prohibit him for writing and to punish him for that. And those are the three issues. The writing is free speech, the paralegals is equal protection and access to the courts and the first is really free speech, privacy, those are all important issues. Question: What was your impression of the questions they were asking you? JERE KRAKOFF: I think they were good. They were pointed. They're interested, I think. They realize that these are important issues. Question: And the commonwealth, what was her stand? JERE KRAKOFF: Okay, well there was one important thing that came out of this. They initially had taken, the commonwealth had initially taken the position that he could write as long as he wasn't paid but then they admitted finally today that they'll punish him even if he doesn't get paid. Question: Is this the first time they said that? JERE KRAKOFF: Yeah, really that clearly, which is good, because I think that the court will at least decide that he can do, you know, Jamal's Journal and all those other things without being punished. I'm hoping that they say he can also receive pay because he has important reasons. That's why I made that argument about Martin Luther King, if he wanted to donate the money, why couldn't he? And so I'm hoping we can win that. Question: Well wasn't there one time they said if he got paid the money would have to go to Faulkners? JERE KRAKOFF: No, they never said that. Oh, that was another, yeah, Son of Sam. They never got into that, no. Question: Once more about that question, Judge Ambrose ruled that this was actual interference with the case, which I understand to be (unintelligible). That seems to be one of the more important. JERE KRAKOFF: Right. Question: What do you think the prospects are on that? JERE KRAKOFF: Well, there's enough in the record to support it and hopefully the Third Circuit will say, you know, this messed him up. I don't know. I hope that they will. Question: (unintelligible) for that kind of thing to be overturned? JERE KRAKOFF: Well, I think there's enough in the record to support that finding. I don't think it'll be overturned. Do you, Rachel? RACHEL WOLKENSTEIN: I mean the point about that particular question is it was an answer, Ambrose's decision came in response to the attorney general's office moving to dismiss the injunction under a new federal, a new U.S. Supreme Court decision that was made. And so what she did is made findings that Mumia was really injured, definitely irreparably injured by the fact that his legal mail was interfered with. And the injury was is that we were unable to file his PCRA petition until after the warrant was signed and that put us in a much, much more difficult position legally at the time of the hearing and the litigation on the petition. So she made that finding. For the purposes of this appeal, it doesn't have as much meaning here as it does for us in the criminal case. In other words, this decision is not only important, this whole appeal is not only important for all the things -- not interfering with Mumia's legal mail, not allowing us to have the paralegals that we started with and which we need to have and also very importantly for Mumia to write, but for the criminal conviction, those findings of Ambrose are actually very, very important to us in and of themselves. Because one of the things as you all recall the district attorney did is they argued that we purposely delayed filing Mumia's appeal, that we did that purposely. We waited for five years, we waited for three years, we waited for two years, it was all a publicity stunt. That's their argument and they use the fact that Mumia had not filed before the warrant was signed to argue that we should not have even gotten a stay of execution, that we had "dirty hands" sort of in the legal terminology, that we had played games with the court system and therefore Mumia should have been executed on August 18th and we should have had a stay. So it has that type of impact and all the other legal questions that are having beyond even all the important questions of how we are able to help defend Mumia, work with him and of course his ability to write. JERE KRAKOFF: On another subject, even though the last thing that I said, I think the last thing I said to them was that this isn't only about Mumia in terms of writing, but it's about every prisoner in the state system because we know how a lot of these judges feel about Mumia. But I want to court to know that whatever it rules here, there's going to be some other Mumia down the line who's going to want to write and I think the one thing that the court, one of the questions was very, it's very clear to me that they're disturbed about when is the line crossed, how does an inmate know whether he's in violation of the rule or not because getting money is an important indication that it's a profession but it's not absolutely necessary. So, you know, is writing a recipe? She couldn't even answer their questions very well. How is an inmate who wants to write going to know whether he's going to punished or not. Question: Out of all the things they went through, did they come up with anything that could be used as an example of why they legitimized why they were doing what they were doing and isn't the fact of him being engaged in his defense, even if he did make money, I mean he's still engaged in a defense that requires funds to do so? JERE KRAKOFF: Right. We argued vehemently in the district court that it was important for him to be able to earn money and Len Weinglass testified at length about how expensive it was to try to find witnesses and to have experts and so forth to be able to dispute what the district attorney's experts were going to say or have said, whatever. So the district court, I think, really kind of twisted our argument and made it seem as though we were arguing that he had a right to write because he had to earn money. What we were arguing was he had a right to write because of the first amendment and earning money is an important ingredient in the first amendment. There are a lot of people who would not publish books unless they knew they were going to be paid money. It's not an easy argument in a prison setting. I mean when you first listen to it, you know, isn't there something wrong, they're going to say, with an inmate getting $10,000 or $20,000 for writing a book? But if you really ! think about all the things that the money can be used -- and I wanted to say that, I should have -- I mean you could have a sick mother that you want to raise money for or to pay for your childrens' school and all the other things. Life doesn't end when you're in prison. There are still people in the outside world. I couldn't say everything. Question: But the size of the book or the financial thing, you know, we think we should blow the word of conspiracy big in this here particular part because of they're invading his legal mail and we're talking about working out a strategy to save his life and they're going to Xerox it and if we gonna try to counter them saving his life, this is very clearly conspiracy to me because the people of the state of Pennsylvania, even America, are charging conspiracy by these people that are in charge but we know (unintelligible) charge them with conspiracy against us. JERE KRAKOFF: Well I think the court was very disturbed about what happened with his letter, you know, her saying it wasn't really sent on to the -- how can you prove where anything is sent on? We couldn't call every person in the city of Pittsburgh or in Harrisburg to find out whether they received a copy of the letter. We know that there were copies of this letter that were made and anybody could have received a copy of that. Question: Did she deny that the legal mail was open? JERE KRAKOFF: No. That's 10 pieces, that's exactly right. Question: (unintelligible) as an example? JERE KRAKOFF: For why they can do it? Question: To substantiate their case. JERE KRAKOFF: Well, I think that they were, it all comes down to whether looking for a minor infraction, which gives a person 15 days loss of privileges, the business and profession rule is on the same level, it's not like an assault in a prison or one of the more, or trying to escape. It's on the same level as horseplay between inmates or smoking in an area where you're not allowed to smoke. It's not a real important rule. So how, what we were arguing is the weight of that rule, if it's not real important, we do know that the right of confidentiality between attorneys and clients is important and if you put the two on the scale, one outweighs the other by a mile. Question: But at what point did they come say here, these are the things we were looking for? JERE KRAKOFF: They never, no. They didn't find any of that stuff. But the fact that they didn't find it isn't really the question. The fact is is they have, what we're saying is that the only time they should be able to look through legal mail is if they think there are escape plans in there. I mean, if I'm Jamal's attorney and they think that Jamal and I are developing escape plans, then, you know, something like that, or that I'm trying to help him create a riot in the prison or something like that. Well even then you could argue that you need a court order. But at the very least we're saying those are the types of situations that it should be reserved for. Question: So the ritual that they performed when they stood there and opened the mail in front of him was a false ritual. JERE KRAKOFF: They didn't open it in front of him. The letters were opened outside of him. (unintelligible) No, they had opened it outside of his presence. Question: No, but I'm saying but then when they brought him and he collected his mail they went through the ritual of then opening it. JERE KRAKOFF: No they didn't, not the letters that had been opened already. Those had been closed. (unintelligible) Well, no. Usually his mail is opened in his presence. We know of 10 instances, and I wanted to say something else, which we said in the brief which makes it even ridiculous, three of those letters that were opened were from the U.S. district court. I mean what suspicion do they have? It was said in the brief. I mean, I couldn't say everything because that red light was going on. (crosstalk) I talked longer than I was supposed to. But in our brief it's very clear that out of those 10 letters, three or four of them were from the federal court. The court's going to know this. Their law clerks review those and summarizer them. RACHEL WOLKENSTEIN: I mean they never told Mumia they were opening his legal mail. They lied to him. So the first letter from Len Weinglass that we learned about was a letter that he sort of didn't get for 10 days and they said it was sort of opened by accident, but they never said we're reading it or we copied it. My letter that sort of was sent about the same time that Len's letter was sent, Mumia had no knowledge it was opened before he got it, none at all and there was a witness statement in it and other statements about his case and defense in there. And then the other letters, again, he had no idea were being opened, none. JERE KRAKOFF: That's why it was important, remember when Alito said basically at the beginning what difference, I think those things are important because it shows what can go wrong when you're allowed to do that. The facts of what was in some of those letters is important. RACHEL WOLKENSTEIN: And Mumia, you know, always understood that in fact there's no real security or no real attorney-client privilege in prison. But nonetheless, you have to conduct a certain amount of business and I mean the attorneys with him. And so when he had this problem with Len's letter he said hey look it, this is like proof. They're not saying to me this is what's going on but this is really the proof that we cannot rely upon this mail. And that really put an end to any even attempt to have any real substantive discussion with him through the process of mail. JERE KRAKOFF: That's why I called it a two headed dragon -- he couldn't communicate by mail and he really couldn't communicate through his paralegals, because they were barred. So it was all cut off while he was in a very sensitive time. ___________________________________ Mumia Index | Protests Planned | R&R Main Page ___________________________________ Contact Refuse & Resist! 305 Madison Ave., Suite 1166, New York, NY 10165 Phone: 212-713-5657 email: refuse@calyx.com or resist@walrus.com
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