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December 7, 2005<br><br>
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<h1><font size=5 color="#990000"><b>A Tainted
Trial?</i></b></font></h1><font size=3>
<a href="http://www.counterpunch.org/" eudora="autourl">
http://www.counterpunch.org/<br><br>
</a></font><h1><font face="Times New Roman, Times" size=5><b>A Stunning
Win for Mumia
Abu-Jamal</b></font></h1><font face="Times New Roman, Times" size=5>By
DAVE LINDORFF<br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>n a startling new development, the Third
Circuit Court of Appeals in Philadelphia has agreed to hear arguments on
three claims by Pennsylvania death-row prisoner Mumia Abu-Jamal that his
1982 trial and state appeal were tainted by constitutional
violations.<br><br>
Any one of those three claims, if upheld by the three-judge panel, could
lead to a new trial for one of America's most famous and long-standing
death row prisoners, a Philadelphia-based journalist and former Black
Panther activist who was convicted of the 1981 shooting murder of a white
Philadelphia police officer.<br><br>
The decision came as a surprise because the appellate court was only
required to consider an appeal from the defense on a single guilt-phase
issue-the claim that the prosecution had illegally removed qualified
jurors from the case on the basis of race. That claim, while rejected in
2001 by Federal District Court Judge William Yohn, had been certified by
the judge for appeal to the Third Circuit. Appellate courts do not have
to even accept arguments from defense attorneys on claims that have not
been certified for appeal by a lower court, so the fact that the judges
agreed to accept the other two claims is a major victory for the
defense.<br><br>
The two additional claims are that:<br><br>
</font>
<dl>
<dd>1. The prosecutor, Joe McGill, improperly sought to weaken any sense
of Responsibility and accountability among jurors considering the case,
and undermined the constitutional requirement of "beyond a
reasonable doubt," when he told them in his final summation that
they need not worry overmuch about voting for conviction since Abu-Jamal
would have "appeal after appeal," and<br><br>
<dd>2. The judge in the case, the late Albert Sabo, who also sat at the
1995 Post-Conviction Relief Act hearing, where determinations of fact,
and crucial new evidence, were presented (or where the defense attempted,
unsuccessfully to present it), was biased against the defense.<br><br>
</dl>Abu-Jamal's claim of racial bias in jury selection is well
documented. In his habeas appeal to the Federal District Court, his then
attorneys, Leonard Weinglass and Daniel Williams, submitted four academic
studies of jury selection practices by both the Philadelphia district
attorney's office and of assistant DA McGill, himself. Both demonstrated
clearly that the DA's office under then DA Ed Rendell, and McGill in the
murder trials he prosecuted, rejected roughly three out of four potential
black jurors who had already agreed that they could vote for capital
punishment. This was a rate of peremptory rejection of qualified jurors
three times higher than for potential white jurors, and is prima facie
evidence of illegal racial bias. But Judge Yohn, in a serious judicial
error of both fact and judgment, rejected all that evidence. As I exposed
in my book on the case ("Killing Time: An Investigation into the
Death Penalty Case of Mumia Abu-Jamal," Common Courage Press, 2003),
Yohn had confused the studies, and incorrectly assumed that they did not
cover the time period of Jamal's trial, when in fact the studies even
included Jamal's trial in their data sets. If the appellate court looks
at that same evidence, the judges would be hard-pressed to find it fair
in a city 44 percent black that the jury selection process in Abu-Jamal's
trial resulted in his having just two black jurors ruling on his guilt
and sentence.<br><br>
Equally compelling is the claim that McGill's summation was
unconstitutional. As I wrote in
"<a href="http://www.amazon.com/exec/obidos/ASIN/1567512283/counterpunchmaga">
Killing Time</a>":<br><br>
<dl>
<dd>Right from the outset, McGill tried to convince the jury that, far
from following the dictum "innocent until proven guilty," and
making sure that they didn't convict an innocent man, they should be
careful not to free a suspect who might well be guilty. Such an argument
risked providing grounds for a successful overturning of the verdict.
Appellate courts, including the Supreme Court of Pennsylvania (in a case,
ironically, involving McGill saying the same words), had already held
that telling a jury in a summation that their verdict would not be final
was grounds for a mistrial. In defiance of that ruling, McGill probably
calculated that the politics of this case-a black radical convicted of
killing a white police officer-would make such a reversal unlikely. The
calculation would prove to be correct, as we will see later. He went
ahead and tried the tactic again, telling them, "If your decision of
course were to acquit, to allow the Defendant to walk out, that is fine.
There is nothing I can do and there is nothing that the judge or anyone
could do that would affect that in any way. If you find the Defendant
guilty of course, there would be appeal after appeal and perhaps there
could be a reversal of the case, or whatever, so that may not be
final."<br><br>
</dl>It could still be that my political analysis back then will prove
correct, and that after hearing the defense's argument on the claim, the
Third Circuit judges will reject it, but they if they did, they'd be
going against earlier precedents where such statements have been made by
prosecutors in the same circuit.<br><br>
Finally on the judicial bias claim, there are so many examples of Sabo's
bias, particularly at the PCRA hearing, where he was the one making the
rulings regarding the validity of evidence, and the admission of new
evidence, that the appellate judges' decision in favor of the defense
claim of bias should be clear. Again, though, there is bound to be
enormous political pressure brought on the court not to support the
claim.<br><br>
The Third Circuit has put Abu-Jamal's appeal on a "fast track,"
setting January 17 as the date for the defense to file its brief on the
three claims. At that point, according to a lawyer for the Third Circuit
court, the DA would have 30 days to respond and to file its own brief on
the sentencing claim, after which the defense would have another 30 days
to respond. The DA would have a final 14 days to file a final brief
responding to the defense's last arguments to the court. At that point,
the Appeals Court judges (who do not get identified publicly until 10
days before a hearing on the case, or a decision), would decide whether
to hold a public hearing on the case, or simply decide based upon the
submitted briefs.<br><br>
There are a number of possible outcomes in the Third Circuit. The
worst-case scenario for Abu-Jamal would be for the appellate court to
reverse Judge Yohn's ruling on the death sentence, and to reject all the
guilt-phase claims, which would put him back on track for
execution.<br><br>
On the guilt-phase claims, there are a number of things that could
happen. If the jury selection race bias claim, called a Batson claim, is
upheld, the court could order a new trial or could, as is more likely
given Yohn's errors, send the case back to Judge Yohn for reconsideration
based upon the evidence he had wrongly dismissed as irrelevant. Yohn
could then order a new trial if he found evidence of race-based selection
of jurors.<br><br>
The claim of prosecutorial error in the summation to the jury could also
lead to an order for a new trial, though again another option would be to
send the matter back to Yohn's court for a rehearing.<br><br>
Finally, the judicial bias claim, because it involved the PCRA hearing in
1995, not the 1982 trial itself, might not lead to a new trial but rather
to a new or reopened state court PCRA hearing. There the defense would
likely have the opportunity to bring back key trial witnesses as well as
call new witnesses. That, in turn, would give the defense new avenues of
appeal, in both state and federal courts, and possibly another chance for
a new trial.<br><br>
A clearly elated Robert Bryan, who took over Abu-Jamal's case as lead
attorney over a year ago after several years of chaos and divisiveness in
his defense following his firing of Weinglass and Williams, and his
hiring of two death-penalty novices, Marlene Kamish and Elliott Grossman,
said of Tuesday's Third Circuit decision to hear arguments on three
claims, "Today we achieved a great victory in the campaign to win a
new trial and the eventual freedom of Mumia."<br><br>
Bryan said all three claims "are of enormous constitutional
significance and go to the very essence of Mumia's right to a fair trial,
due process of law, and equal protection of the law under the Fifth,
Sixth and Fourteenth Amendments to the Constitution."<br><br>
Asked for comment on the Third Circuit's decision to her three defense
claims, a DA's office spokeswoman said, "We haven't heard about
their decision yet."<br><br>
Dave Lindorff</b> is the author of
<a href="http://www.amazon.com/exec/obidos/ASIN/1567512283/counterpunchmaga">
Killing Time: an Investigation into the Death Row Case of Mumia
Abu-Jamal</a>.<font face="Verdana" size=3>
</font><font face="Verdana" size=2>His new book of CounterPunch columns
titled
"<a href="http://www.amazon.com/exec/obidos/ASIN/1567512984/counterpunchmaga">
This Can't be Happening!</a>" is published by Common Courage Press.
Information about both books and other work by Lindorff can be found at
<a href="http://www.thiscantbehappening.net/">
www.thiscantbehappening.net</a>.<br><br>
He can be reached at:
<a href="mailto:dlindorff@yahoo.com">dlindorff@yahoo.com</a><br><br>
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