[Ppnews] Mumia Long-Shot Appeal for Reversal of Last Year's Disastrous Third Circuit Ruling

[Political Prisoner News]

OpEdNews

Original Content at 
http://www.opednews.com/articles/Mumia-Abu-Jamal-s-Long-Sho-by-Dave-Lindorff-080707-97.html

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July 7, 2008

Mumia Abu-Jamal's Long-Shot Appeal for Reversal 
of Last Year's Disastrous Third Circuit Ruling

By Dave Lindorff

Mumia Abu-Jamal and his attorney Robert R. Bryan 
yesterday filed a formal petition seeking a full 
en banc reconsideration of last spring’s decision 
by a three-member panel of the Third Circuit 
Federal Court of Appeals rejecting his claim of a 
constitutional violation in the selection of 
jurors at his 1982 murder trial in the shooting 
death of Philadelphia police officer Daniel Faulkner.

The three-judge panel, in a 2-1 ruling, rejected 
Abu-Jamal’s claim of a so-called Batson 
violation­namely that the city prosecutor trying 
his case had denied him a fair trial by 
improperly barring qualified African Americans 
from sitting on his jury. The two judges in the 
majority--both appointed to their posts by 
President Ronald Reagan--stated that Abu-Jamal 
had failed to raise the issue at the time of his 
trial, and that he had failed to make a prima 
facie case of racial discrimination.

In their majority opinion rejecting Abu-Jamal’s 
Batson claim, Judge Anthony Scirica and Judge 
Robert Cowan had argued that even though it was 
demonstrably true that Assistant DA Joseph McGill 
had used 10 of his 15 peremptory challenges to 
reject two-thirds of the potential black jurors 
who had agreed that they could vote for a death 
penalty in the case, it could not be seen as a 
prima facie case of impermissible racial 
discrimination, because no one had established 
the racial make-up of the total jury pool. In 
other words, as one of the two judges actually 
stated during the hearing, “perhaps the jury pool 
itself was two-thirds black.” The majority also 
ruled that because Abu-Jamal had not formally 
raised the objection about the number of racial 
jury strikes at the time they occurred, his claim was denied.

As attorney Bryan pointed out in his request for 
a re-examination of the ruling by the full Third 
Circuit panel of 12 judges, however, both these 
arguments fly in the face of both US Supreme 
Court and Third Circuit precedents. Under Batson, 
a defendant, in order to obtain a full hearing 
into the issue of race discrimination in jury 
selection, need only demonstrate that one single 
juror was improperly rejected by the prosecution 
on the basis of race. Furthermore, both those 
courts have also established that all relevant 
issues must be taken into consideration, not just 
the juror strike (dismissal) rate. Bryan noted, 
for example, that the case was racially charged, 
given that the defendant was black and the victim 
was white, and that it was especially charged, 
given that the defendant had been a Black Panther 
and had been associated with the MOVE 
organization, while the victim had been a police 
officer. Both the Supreme Court and the Third 
Circuit Court of Appeals have held that such 
issues can contribute to making a prima facie 
case of discrimination, yet neither was 
considered by the three-judge panel in its ruling 
in this case. Bryan also noted that at the time 
of the trial, there was no Batson standard to 
raise an objection to (the US Supreme Court’s 
Batson standard was established in 1986, but was 
made retroactive for all cases). Indeed, in 1982, 
at the time of Abu-Jamal’s trial, it was 
technically legal for prosecutors to reject 
jurors on the basis of race, so he and his trial 
attorney would have been making a pointless 
objection at trial had they formally complained back then.

All these points, Bryan argues in his petition 
for a re-consideration of his client's Batson 
claim, were also powerfully made in a dissent by 
the third appellate judge, Thomas Ambro (a 
Clinton appointee), who charged that his two 
senior colleagues on the bench were making “a 
newly created contemporaneous objection rule for 
habeas petitions,” which he warned would conflict 
with all the court's prior decisions.

Judge Ambro, Bryan points out, also was 
dismissive in his dissent of his two colleagues’ 
claim that they needed to know the composition of 
the jury pool before they could say the 
prosecutor’s dismissal of two thirds of the 
qualified black jurors might constitute improper 
discrimination in jury selection. “It is my 
belief,” he wrote, “that this strike rate without 
reference to total venire (jury pool) can stand 
on its own for the purpose of raising an inference of discrimination.”

In any event, Bryan went on to demonstrate, using 
the trial transcript record and some simple math, 
that in fact the racial composition of the 
original jury pool can be established: it was 14 
blacks and 31 whites, or in other words, 31 
percent black. Since it has been stipulated by 
the district attorney’s office, and accepted as 
fact by the state courts, that the prosecutor 
used his ability to dismiss jurors peremptorily 
(without cause) to eliminate 10 black jurors 
already considered acceptable by the court, that 
gives the prosecution a strike rate of 66.67 
percent, or more than double the actual 
percentage of available black jurors in the pool. 
Admittedly it would have been better had the 
defense been able to make that damning point at 
the Third Circuit hearing last year, when the two 
Republican judges on the bench were demanding it, 
properly or not. That said, it is still a point 
that the full Third Circuit bench should consider 
carefully, in examining lst year's bizarre ruling 
by the three-judge panel of Scirica, Cowen and Ambro.

' The challenge faced by Abu-Jamal in this bid 
for a reconsideration of his Batson claim ruling 
is that the three judges who already ruled, 
including Judge Cowen, could be part of any en 
banc reconsideration. Judge Marjorie Rendell, one 
of the 12 active members of the Third Circuit, 
has recused herself from the hearing because her 
husband, Gov. Ed Rendell, was district attorney 
and as such was boss of the prosecutor, Joe 
McGill, when the case was tried. Another judge, 
Clinton appointee Theodore McKee, also recused 
himself, as did Bush appointee D. Michael Fisher. 
Ordinarily, en banc deliberations are limited to 
active judges, but Judge Cowen, though retired, 
might be able to participate, since he was one of 
the judges who issued the ruling in question. If 
Judge Cowan did not participate in an en banc 
session, that would mean four additional judges 
would have to side with Judge Ambro, for a 
reversal and an order for a hearing on 
Abu-Jamal’s Batson claim. If Cowan were to join 
the bench, however, that would mean a total of 10 
judges, and thus a majority of six--or five in 
addition to Ambro--would be needed for a reversal.

Without Cowan, the odds would be daunting enough. 
Even if the other two Clinton appointees to the 
Third Circuit Court and one remaining Carter 
appointee were to side with Ambro, Abu-Jamal 
would need one Bush appointee to come over to get 
five votes for a reversal. With Cowan voting, 
five votes would just give a tie, leaving last 
year’s ruling standing. For a reversal, a second 
Bush appointee would have to be swayed to Abu-Jamal’s side.

That is quite a hurdle. Then again, stranger 
things have happened: One of the key Third 
Circuit rulings establishing the precedent that 
it should be relatively easy for a death row 
prisoner to establish prima facie evidence of 
race-based jury selection (to which Judge Ambro 
referred when he said his colleagues were 
ignoring the precedents of their own circuit) and 
gain a full hearing of the evidence, was written 
by a recent member of the Third Circuit Court of 
Appeals, Samuel Alito. Alito, recall, left the 
Third Circuit when he was appointed last year to the Supreme Court by Bush.

Technically, what Abu-Jamal is seeking at this 
point is an order from the Third Circuit Court of 
Appeals for a full Batson hearing, at which all 
evidence could be presented, and the prosecution 
questioned, about the prevailing practice by the 
district attorney's office in 1982 of excluding 
blacks from juries in Philadelphia (academic 
research shows that under Rendell's direction, 
prosecutors struck blacks from capital-case 
juries 58 percent of the time, compared to only 
22 percent for whites), the record of prosecutor 
Joe McGill (who records show struck black jurors 
from the capital cases he tried 74 percent of the 
time, vs. 25 percent of the time for whites), and 
about what actually happened during jury 
selection process at Abu-Jamal's own trial, when 
two-thirds of black jurors were struck by the prosecutor.

If a judge were to establish after such a hearing 
that there was a racial motive behind McGill's 
actions during jury selection, or during the 
removal of one seated black juror early in the 
trial, or that even one juror was removed for 
racial reasons, under Batson rules, it would 
result automatically in Abu-Jamal's getting a new 
trial before a new, fairly selected jury.

The Third Circuit drama over Abu-Jamal’s Batson 
claim plays out as evidence continues to mount 
that his trial was a sham and a travestry. Among 
these are new photographs showing: 1) police 
manipulation of the evidence at the crime scene, 
2) a lack of any bullet holes in the sidewalk 
surrounding the spot where officer Faulkner was 
lying when he was allegedly shot by Abu-Jamal, 
and 3) no indication of a taxi cab parked where 
cab driver Robert Chobert, a key prosecution 
“eye-witness,” claimed he had been located during 
the shooting incident. Other credible witnesses 
are also surfacing with evidence that there was 
never a shouted out “confession” in Jefferson 
Hospital’s emergency room, and that witness 
Chobert was actually not a witness to the 
shooting, but was rather parked on another 
street, facing away from the incident.

The District Attorney’s office is expected to 
file a counter petition opposing an en banc 
review of last year's Third Circuit ruling.



Authors Website: http://www.thiscantbehappening.net

Authors Bio: Dave Lindorff, a columnist for 
Counterpunch, is author of several recent books 
("This Can't Be Happening! Resisting the 
Disintegration of American Democracy" and 
"Killing Time: An Investigation into the Death 
Penalty Case of Mumia Abu-Jamal"). His latest 
book, coauthored with Barbara Olshanshky, is "The 
Case for Impeachment: The Legal Argument for 
Removing President George W. Bush from Office 
(St. Martin's Press, May 2006). His writing is 
available at http://www.thiscantbehappening.net




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