[Ppnews] Prosecutor Admits Mumia Had No "True Defense"

[Political Prisoner News]

http://www.counterpunch.org/lindorff12072006.html

December 7, 2006


Prosecutor Admits Mumia Had No "True Defense"


Mumia Abu-Jamal Case Goes to Third Circuit

By DAVE LINDORFF

It's been 25 years now since Philadelphia Police Officer Daniel 
Faulkner was shot dead in a Center City, Philadelphia red-light 
district. Since then, Faulkner has become a rallying point for the 
nation's death penalty advocates. It's been 25 years, too, since the 
man convicted of killing Faulkner, Philadelphia radio journalist and 
former Black Panther Mumia Abu-Jamal, was arrested for the crime at 
the scene. Since July 1982, Abu-Jamal has been in solitary 
confinement on Philadelphia's death row, from which lonely spot he 
has become a world-famous prison journalist, and a rallying point for 
those opposed to capital punishment.

The debates over Abu-Jamal's guilt or innocence have raged now for an 
astonishing quarter of a century, through the presidencies of Ronald 
Reagan, George H.W. Bush, Bill Clinton and George W. Bush. Battles 
have raged, too, within the loose-knit group of people who have 
backed Abu-Jamal, between those who argue that he is an innocent man, 
a political prisoner condemned for his politics, and those who simply 
argue that he never received a fair trial. Politicians at the local, 
state and even federal level, many without any real knowledge about 
this complex case, have prostituted themselves by pressing for 
Abu-Jamal's execution, while others, sometimes equally ignorant of 
the facts, have lionized him and honored him with honorary 
citizenships and street names.

Whatever one's views on this case, however, the reality is that it 
for the first time in 25 years, Abu-Jamal is finally going to get a 
chance in the second highest court in the land to make the case that 
his 1982 trial was fatally tainted by unconstitutional error, 
judicial bias, race-based jury selection and prosecutorial 
misconduct. The reality also is that the Third Circuit Court of 
Appeals, which will be hearing arguments on Abu-Jamal's appeal early 
next year (barring any unanticipated delays), could conceivably end 
up ordering a new trial for Abu-Jamal--a trial that, because of 
better defense counsel, a changed political climate, shifting 
demographics, the deaths of some witnesses, and the likelihood of new 
defense witnesses, would most likely end up setting him free, or 
having him released for time served. At the same time, the same 
three-judge panel hearing this appeal will also be considering a 
counter appeal by the Philadelphia District Attorney's office, which 
seeks to overturn a lower Federal District Court decision which five 
years ago tossed out Abu-Jamal's death sentence. So at the same time 
that the Third Circuit could end up giving Abu-Jamal a new chance to 
prove his innocence, or at least to leave prison a free man, it could 
ironically also end up sending him back onto death row and to a date 
with the needle.

Let's look at the DA's appeal first, since it's fairly simple.

In 2001, Judge William Yohn, a former Montgomery County state judge 
appointed to the federal bench by the first President Bush, found 
that Abu-Jamal's death sentence had been constitutionally tainted. He 
ruled that the instructions of the trial judge, the late Albert Sabo, 
and the jury polling form used by Sabo, were both confusing and could 
have led jurors to mistakenly assume that they could not consider any 
mitigating circumstances (which might argue against a death sentence) 
unless all 12 members of the jury agreed that such a mitigating 
factor existed. In fact, as Judge Yohn noted in his decision, the law 
allows any one juror who finds such a mitigating factor (for example, 
being a devoted father to a young child, or having a difficult 
childhood) to consider that factor in deciding whether or not to vote 
for a death penalty. Since the law requires a unanimous vote for 
death in order for a capital sentence to be imposed, this means that 
any one juror should be able to take execution off the table if she 
or he thinks there is a sufficiently mitigating factor.

If the DA can convince at least two of the three appellate judges 
that Yohn was wrong in his ruling, Abu-Jamal would be put back on 
death row, with his only remaining hope of avoiding execution being 
the US Supreme Court--or a reversal of his conviction itself. Even if 
the Third Circuit panel supports Yohn's overturning of the death 
sentence, however, Abu-Jamal could still end up facing execution. 
This is because once an Appeals Court decision is rendered, the DA 
will have 180 days to decide whether to seek a new trial on the 
sentence alone. If that were to happen, a new jury would have to be 
impaneled to hear arguments for and against execution, with the 
alternative being life in prison without possibility of parole.

Yohn's vacating of Abu-Jamal's death sentence was well-reasoned, and 
it seems unlikely that the higher court would reverse it, but this 
case has been full of surprises from the start--with most of them 
going against Abu-Jamal--so it cannot be ruled out.

Meanwhile, however, this past year there was a surprise ruling by the 
Third Circuit that went Abu-Jamal's way and that improved his chances 
of winning a new trial by 200 percent. That surprise came in the form 
of an announcement that Abu-Jamal would be allowed to add two 
additional grounds for appeal of his conviction to the one, which 
Judge Yohn had already certified for appeal.

Under existing law and federal court rules, a capital defendant is 
only guaranteed the right to appeal to the federal appellate court a 
ruling that a lower federal district judge has "certified" for 
appeal. Petitions to consider other issues may be made to appellate 
judges, but those appeals judges have no obligation to grant a 
hearing on them. In Abu-Jamal's case, Judge Yohn rejected all 20 of 
his appeals of his conviction. But on one of those claims--the 
argument that his jury had been systematically stripped of qualified 
black jurors by the prosecutor's use of peremptory challenges 
(challenges for which no reason has to be given)--the judge seemed 
troubled enough by the evidence presented that he certified an appeal 
to the Third Circuit Court of Appeals.

Abu-Jamal's appellate attorney, Robert R. Bryan of San Francisco, 
went ahead and pursued several other rejected grounds for appeal, 
though, and was rewarded last December with a decision by the Third 
Circuit to hear appeals arguments on two other grounds. One of these 
was the claim that prosecutor Joseph McGill, near the trial's end 
during his summation to the jury, had improperly led jurors to 
believe they needn't worry about the possibility of wrongfully 
convicting the defendant. Turning the basic requirement that jurors 
may only convict if they feel a case has been proven "beyond a 
reasonable doubt," McGill instead urged Abu-Jamal's jury to go ahead 
and vote guilty because their verdict would not be the last word. 
McGill, a veteran prosecutor who clearly knew what he was doing, 
improperly assured them, without any objection from the judge, that 
there would be "appeal after appeal" of their verdict, which he 
argued therefore "may not be final."

Federal courts have generally found unconstitutional such attempts to 
remove jurors' sense of responsibility for the gravity of their 
decision. It is hard to imagine how fair-minded appellate judges 
could allow such a blatant undermining of the law to stand, and yet, 
there have been many examples of appeals courts doing just this, and 
the Abu-Jamal case is a very politically charged issue.

The other ground for appeal which the Third Circuit invited an appeal 
filing on was the charge that Judge Sabo had been unconstitutionally 
biased against the defendant both at the original trial and during 
the 1995 post-conviction relief act (PCRA) hearing. A few years back, 
Abu-Jamal's defense team discovered a court stenographer, Terri 
Maurer Carter, who said that in the opening days of Abu-Jamal's 
trial, she, in the company of her own judge, Richard Klein (currently 
a state Superior Court Judge), had overheard Sabo say he would "help 
them fry the nigger." The alleged incident reportedly occurred at the 
end of the day as Sabo was exiting the courtroom along with his court 
clerk through the private "robing room" exit, just as Judge Klein, 
then a civil court judge who was planning to borrow Sabo's courtroom 
for evening hearings, and his stenographer, were entering the room.

Common Pleas Judge Pamela Dembe, in 2001, ruled that it wouldn't 
matter if Sabo had uttered those words, "since this was a jury 
trial." Hers was a bizarre decision, since even if jurors, not 
judges, render the verdict, judges clearly do make critical decisions 
about the admissibility of evidence, about the questions that may be 
asked of witnesses, and about how trials are to be conducted, and 
it's common sense that a biased judge could easily skew a trial 
against a defendant. But in any event, in a PCRA hearing, where there 
is no jury, it is the judge alone who determines whether new evidence 
is significant, what questioning will be allowed of witnesses, and 
what subpoenas will be issued on behalf of the defendant. Sabo's 
astonishing one-sidedness at that hearing was so blatant that it led 
the Philadelphia Inquirer to editorialize at the time: "The behavior 
of the judge in the case was disturbing the first time around--and in 
hearings last week he did not give the impressionof fair-mindedness. 
Instead, he gave the impressionof undue haste and hostility toward 
the defense's case."

Should at least two of the three appeals court judges considering 
this argument find evidence of unconstitutional judicial bias, it 
would not lead to an overturning of Abu-Jamal's conviction, but 
rather would more likely lead to a new round of evidentiary hearings 
before a federal judge--most likely Judge Yohn. At such a hearing, 
Abu-Jamal would likely be given a chance to recall and re-question 
witnesses whose testimony had either been disallowed or interfered 
with by Judge Sabo. Abu-Jamal would probably also be able to call new 
witnesses who have been discovered more recently, whose testimony 
might undermine some of the earlier prosecution witnesses in the 
case. It is possible there could also be recantations from some key 
prosecution trial witnesses. (For example, there were reports back in 
1995 that one of the prosecution's key eye-witnesses to the Faulkner 
shooting, the cab driver Robert Chobert, had recanted his trial 
testimony, in which he had testified that his cab directly behind 
Faulkner's parked squad car, making him a direct witness to the 
shooting, and was instead saying that he had been parked on another 
street, facing away from the incident. Sabo had prevented this 
damaging line of questioning by the defense at the PCRA.) Clearly 
such a federal court evidentiary hearing could pave the way for the 
ordering of a new trial.

The third avenue of appeal of Abu-Jamal's conviction--the one 
certified for appeal by Judge Yohn in 2001--is perhaps his best shot 
at an overturning of his conviction. This is the claim of racial bias 
in jury selection--an issue that even the current conservative 
Supreme Court has been very sensitive to.

In Abu-Jamal's case, it is clear from the record that prosecutor 
McGill used 11 of his allotted 15 "peremptory" challenges to remove 
from consideration 11 black jurors who had met the standard of 
agreeing that that could vote for a death penalty. (In capital cases, 
jurors must be questioned by defense and prosecution, or by the 
judge, and any juror who states that she or he could never vote for a 
death sentence may be summarily dismissed "for cause," since such a 
juror, if impaneled, would be able to veto any death sentence.) In 
the end, when jury selection was completed, Abu-Jamal wound up with 
just three black and nine white jurors (ultimately reduced to two 
blacks when one black juror was removed by the judge under 
questionable circumstances). This in a city that was 44 percent 
black, and in a case that involved the slaying of a white police 
officer by a black defendant, making race a critical issue. While 
McGill has insisted that his reasons for rejecting all those 
qualified black jurors had nothing to do with their race, in fact 
both his own record and the record of the prosecutor's office under 
then DA Ed Rendell (now Pennsylvania's governor), suggest otherwise.

Consider that between 1977 and 1986, McGill used peremptory 
challenges to strike 74 percent of qualified African-American jurors 
from trials he prosecuted, compared to only 25 percent of whites. 
Consider further that under DA Rendell, the Philadelphia prosecutor's 
office overall, over the same eight-year period, struck black jurors 
58 percent of the time, while striking white jurors only 22 percent 
of the time. This is on its face damning evidence of a systematic 
policy of illegal race-based jury selection on the part of both 
McGill and of the DA's office. Moreover, under existing Supreme Court 
precedent, a defendant, to prove unconstitutional race-based jury 
selection, does not even need to prove that there is a pattern of 
discrimination--only that there is evidence that race was a factor in 
his specific trial. McGill's line of questioning during jury 
selection for this trial makes it evident that such was likely the 
case. For example, black jurors who were dismissed, not "for cause" 
but peremptorily, were frequently asked by McGill if they had 
"listened to black radio," while white jurors were never asked such a 
question. At one point, McGill also interrupted Judge Sabo to observe 
that a black judge had entered the courtroom and seated himself on 
the side of the visitor's seating area where Abu-Jamal's supporters 
were. McGill said to the judge, "If the court pleases, the two black 
jurors may know him." Since it was just as likely that the ten white 
jurors might have known Judge Calvin Wilson, this was clear evidence 
that McGill saw black jurors as being fundamentally different from 
white jurors."

Judge Sabo, it should be noted, studiously ignored McGill's 
outburst--perhaps aware of how damaging they could be.

Although the above statistical evidence was submitted to Judge Yohn 
by Abu-Jamal's defense team, the judge never even considered it, 
because he confused and conflated several studies submitted by the 
defense, and incorrectly concluded that neither the McGill jury 
statistics nor the Rendell jury statistics covered the period of 
Abu-Jamal's trial. Because Yohn rejected that evidence out of hand, 
he did not bother to review other evidence of race-based jury 
selection specific to the trial. Yet in fact, not only did the period 
of both those studies cover the period of Abu-Jamal's 1982 trial; his 
trial was in fact a part of those statistics.

Should at least two of the three judges hearing the Third Circuit 
appeal conclude that there was an attempt at racial exclusion 
underlying McGill's peremptory challenges, they would have no 
alternative but to order a new trial for Abu-Jamal. An alternative 
would be for the Third Circuit to send the issue back to Judge Yohn, 
with instructions that he reconsider, based upon all of the evidence 
submitted by the defense. Given that evidence, there is a very good 
chance that in the end, Abu-Jamal could get a new trial, with a jury 
that, in today's Philadelphia, would likely have four to six 
African-American jurors on it instead of only two.

It seems clear that the coming hearing of Abu-Jamal's appeal before 
the Third Circuit Court of Appeals, at which there will be oral 
arguments presented by both sides, will be dramatic and possibly 
explosive. And since any decision by the appeals court will lead, at 
a minimum, to a whole new round of appeals, while some could lead to 
new hearings or to a new trial, or penalty trial, it seems equally 
clear that this 25-year-old death penalty case will be around for 
some time to come, as will the man who has spent those 25 
years--including the last five during which his sentence has 
technically been lifted--in solitary confinement on Pennsylvania's 
grim death row.

Meanwhile, those who continue to lobby tirelessly for Abu-Jamal's 
execution--especially Faulkner's widow Maureen and the Pennsylvania 
Fraternal Order of Police, as well as Governor Rendell 
himself--should take note of an astonishing statement made by 
Abu-Jamal prosecutor McGill in a December 3 article in the Inquirer. 
McGill, now retired and a private attorney, who had assured me in an 
interview for my book on the case (Killing Time), that it had been 
"the strongest case" he'd ever handled, told the Inquirer reporter 
that Abu-Jamal "could have been convicted of a lesser offense" had he 
waged a "true defense."

It is well known that the Philadelphia District Attorney's office has 
had a long history, stretching back at least to Rendell's two terms 
as DA, of deliberately overcharging defendants in hopes of winning 
plea bargains, and of deliberately seeking the death penalty even 
when it is inappropriate, in order to be able to "death qualify" and 
screen out jurors who are opposed to capital punishment (many 
academic studies have documented that pro-execution jurors tend to be 
more pro-government and more inclined to convict than jurors who 
object philosophically or on religious grounds to capital 
punishment). Indeed many jurisdictions in Pennsylvania consider this 
tactic--still practiced under DA Lynne Abraham--to be unethical.

McGill's statement suggests that this tactic may have been applied in 
Abu-Jamal's case. It is also an admission by McGill that Abu-Jamal 
never had a "true defense."

Now I know McGill claims that this is because Abu-Jamal himself 
screwed up by insisting on being able to defend himself, but the 
truth is more complicated. In fact, Abu-Jamal had hired an attorney, 
Anthony Jackson, whom he thought was up to the task, but who in fact 
had never handled a death penalty case, and who moreover had a drug 
habit (he was subsequently disbarred for financial improprieties, 
allegedly related to drugs). When Jackson began messing up, Abu-Jamal 
tried to get rid of him, but was not allowed to do so by Judge Sabo, 
who seemed to relish the discord that he was encouraging between the 
defendant and his counsel. What Abu-Jamal ended up with was the worse 
of all possible worlds: an incompetent defense counsel, but no right 
to represent himself either.

In America, the right to a fair trial is sacred. Is this the kind of 
situation--a defendant who did not have a "true defense"--one that 
anybody, including McGill, would want to see lead to a man's 
conviction and execution?

Dave Lindorff is the author of 
<http://www.amazon.com/exec/obidos/ASIN/1567512283/counterpunchmaga>Killing 
Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. 
His new book of CounterPunch columns titled 
"<http://www.amazon.com/exec/obidos/ASIN/1567512984/counterpunchmaga>This 
Can't be Happening!" is published by Common Courage Press. Lindorff's 
new book is 
"<http://www.amazon.com/exec/obidos/ASIN/0312360169/counterpunchmaga>The 
Case for Impeachment",
co-authored by Barbara Olshansky.

He can be reached at: <mailto:dlindorff at yahoo.com>dlindorff at yahoo.com


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