[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.

Dave Lindorff

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 
capital-murder prosecution."

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 
Mumia Abu-Jamal."

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 
at <http://www.thiscantbehappening.net>www.thiscantbehappening.net. 
E-mail him at <mailto:dlindorff at yahoo.com>dlindorff at yahoo.com.

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