February 8–15, 2001

hit and run

Southern Discomfort

In a successful effort to keep a top advisor to Mumia Abu-Jamal in jail for a probation violation, the local U.S. Attorney’s office has invoked a decades-old Supreme Court precedent that once allowed Alabama segregationists to imprison Martin Luther King.

In arguing that Abu-Jamal confidant C. Clark Kissinger should remain jailed for defying parole conditions laid down by federal magistrate judge Arnold C. Rapoport, U.S. Attorney Michael Stiles extensively cites the Supreme Court’s Walker vs. City of Birmingham decision. In that landmark case, dozens of civil rights activists including Martin Luther King Jr. had been fined and imprisoned in 1963 for ignoring a court prohibition against a freedom march through Birmingham. Before the march, a lower federal court had upheld the decision by notorious police chief Eugene "Bull" Connor to deny the protesters a parade permit. The Supremes, by a narrow 5-4 margin, then ruled in 1967 that judicial orders must be obeyed, even when they support clearly unconstitutional government actions.

"It’s a quite impressive little argument," says Kissinger attorney Ronald Kuby of the U.S. Attorney’s 22-page opposition to Kissinger’s stay-of-sentence petition. "It sort of unwittingly casts Clark in the role of Dr. Martin Luther King Jr., and Judge Rapoport in the role of Bull Connor."

"It’s an utterly appropriate comparison," he adds. "But it’s an argument I didn’t dare make. I’m glad they did."

Kuby, however, has nonetheless failed in this latest effort to spring Kissinger from jail. A federal appeals court judge has since denied Kissinger’s petition for a stay of sentence.

The 60-year-old Kissinger, a Brooklyn resident, has been incarcerated since December for violating his parole by making a speech here last summer during the Republican National Convention. Rapoport, who was supervising Kissinger’s one-year parole sentence for his arrest during a 1999 Mumia Abu-Jamal protest at the Liberty Bell, had denied Kissinger’s request to address a legally permitted anti-death-penalty rally. Kissinger came and spoke anyway, without formally appealing Rapoport’s decision.

Stiles could not be reached for comment, but his position on behalf of the government is fairly clear. "If Kissinger believed that the [Judge Rapoport’s] order was unlawful, he had an obligation to challenge that order through the courts," the U.S. Attorney’s response reads in part. "In the court’s attempt to protect the community by requiring obedience to its orders, Kissinger gave the court no choice but to incarcerate him."

But Kuby, in a follow-up filing, accuses Rapoport of taking so much time to rule on Kissinger’s speech request that an effective appeal was impossible. Then, in a final stab at securing the moral high ground in the case, Kuby concludes that Stiles’ citation of the Walker decision "mak[es] such an odious historical comparison …. [that it] invites the same judgment that history has already passed upon those men and the era that they represented."

—Noel Weyrich