[Ppnews] 'Mumia Exception's' ugly head again
Political Prisoner News
ppnews at freedomarchives.org
Fri Apr 4 13:30:56 EDT 2008
Posted on Wed, Apr. 2, 2008
'Mumia Exception's' ugly head again
Appeals court followed Phila. pattern of rule-altering.
is an investigative journalist
Largely missing from coverage of Thursday's Third Circuit rejection
of Mumia Abu-Jamal's murder-conviction appeal was a 41-page dissent
by Judge Thomas Ambro, one of the panel's three judges.
In a stinging dissent on the rejection of Abu-Jamal's so-called
Batson claim that his jury had been unconstitutionally purged of
blacks, Ambro said his two colleagues, Chief Judge Anthony Scirica
and Judge Robert Cowan, had ignored precedents from the U.S. Court of
Appeals for the Third Circuit and arbitrarily set a higher bar for
this particular appellant.
Ambro writes, "Our court has previously reached the merits of Batson
claims . . . where the petitioner did not make a timely objection
during jury selection . . . and I see no reason why we should not
afford Abu-Jamal the courtesy of our precedents."
In fact, evidence of racial bias in jury selection in this case is
hard to deny. Not only did Prosecutor Joseph McGill use 10 of his
peremptory challenges to remove black jurors who had said they could
vote out a death sentence (compared with only five whites), and not
only did he ask specifically different race-based questions of some
of those jurors, but there is also a documented history of racial
jury purging by the Philadelphia District Attorney's Office, and by
prosecutor McGill, during the early 1980s. Research by academic
experts and the Federal Defenders Office in Philadelphia shows that
between 1977 and 1986, under then-District Attorney Ed Rendell, local
prosecutors struck qualified blacks from juries in capital cases 58
percent of the time, compared with 22 percent of the time for whites.
During the same period, McGill struck qualified black jurors 74
percent of the time, compared with 25 percent for whites.
What obviously upset Ambro is that Scirica and Cowan are
demonstrating another disturbing example of what local journalist
Linn Washington has dubbed the "Mumia Exception."
On several occasions during the former Black Panther and local
journalist's 26-year legal odyssey, this state's courts have altered
the rules just to keep Abu-Jamal on course for death. In 1986, the
Pennsylvania Supreme Court overturned a death sentence where the same
Joseph McGill had made an improper closing statement to jurors in a
murder trial. Declaring that McGill's advice to the jury that their
verdict would not be final because of appeals had "minimize[ed] the
jury's sense of responsibility," the court ordered a new trial. Three
years later in 1989, despite this precedent and presented with an
identical statement by McGill to Abu-Jamal's jury, the same court
inexplicably reversed itself, leaving Abu-Jamal's conviction
standing. One year later, the court reversed itself again, barring
such language by prosecutors "in all future trials," but not making
the decision retroactive for Abu-Jamal.
"Allocution" - the right of a defendant to make a statement to jurors
at sentencing without challenge - offers another example of the
special handling accorded Abu-Jamal's case. Just a month before
considering Abu-Jamal's appeal in March 1989, the Pennsylvania
Supreme Court ruled the right of allocution to be of "ancient
origin." The court said failure to permit a defendant to plead for
mercy demanded reversal of sentence. But when Abu-Jamal came before
the court, saying that the judge had allowed McGill to question
Abu-Jamal after his allocution statement, the same court ruled that
the "right of allocution does not exist in the penalty phase of
This judicial flip-flopping led Amnesty International in its 2001
report on Abu-Jamal's case to conclude that Pennsylvania's highest
court simply rewrites its rules "to apply to one case only: that of
A "Mumia Exception" has been established.
And now this stain on Pennsylvania jurisprudence has migrated to the
federal court system at the Third Circuit.
Dave Lindorff, based in Philadelphia, is author
of "Killing Time: An Investigation into the Death Penalty Case of
Mumia Abu-Jamal." (Common Courage Press, 2003). His work is available
E-mail him at <mailto:dlindorff at yahoo.com>dlindorff at yahoo.com.
522 Valencia Street
San Francisco, CA 94110
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