[Ppnews] Third Circuit: The "Mumia Exception"

[Political Prisoner News]

Original Content at 
http://www.opednews.com/articles/genera_dave_lin_080327_third_circuit_court_.htm

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March 27, 2008

Third Circuit Court Rejects Abu-Jamal Appeal: The "Mumia Exception"

By Dave Lindorff

After spending almost a year’s time deliberating 
following a hearing last May 17, a three-judge 
panel of the Third Circuit Court of Appeals in 
Philadelphia has shot down all three claims by 
death row prisoner Mumia Abu-Jamal challenging 
his conviction for the 1981 murder of 
Philadelphia Police Officer Daniel Faulkner.

At the same time, the appeals court upheld a 2001 
decision by Federal District Judge William Yohn 
that had overturned former Black Panther and 
Philadelphia journalist Abu-Jamal’s death 
sentence, agreeing with the lower court judge 
that the form used by the trial jury in 1982 to 
establish whether jurors felt there were any 
mitigating circumstances was flawed, and could 
have left panelists mistakenly believing that 
before they could consider any such mitigating 
factors in their deliberations, they would all 
have to agree such a factor existed. In fact, by 
law if even one juror believes that there is a 
mitigating factor, that factor can be considered 
by jurors in deciding on death or life in prison.

The court was unanimous in rejecting Abu-Jamal’s 
claim that the trial judge, Albert Sabo, had been 
prejudiced against him and in favor of the 
prosecution when he presided over a 
Post-Conviction Relief Act hearing in 1995-6. It 
was also unanimous in rejecting Abu-Jamal’s claim 
that Prosecutor Joseph McGill had improperly 
diminished the jury’s sense of responsibility 
during the conviction phase of the trial by 
telling them that their decision would not be 
final as there would be “appeal after appeal.” 
The appellate judges didn’t say that McGill’s 
statement was proper, or even that it might not 
have impacted jurors’ decision on guilt, but 
rather agreed that by court precedent they had 
only used evidence of such prosecutorial 
misconduct to overturn death sentences, not 
convictions. (Arguably, in the unlikely event 
that the Philadelphia DA were successful in 
getting the US Supreme Court to reverse the Third 
Circuit and reimpose Abu-Jamal’s death penalty, 
he could go back and appeal the sentence based 
upon this statement to the jury by McGill.)

But on Abu-Jamal’s third claim­that the 
prosecution had improperly violated his 
Constitutional right to a fair trial by his peers 
by barring 10 qualified African-American 
potential jurors from serving on his jury through 
the use of what are called “peremptory 
challenges”­there was a dissent, making the vote 2-1.

Judge Thomas Ambro, a Clinton appointee to the 
bench­chastised his two colleagues, Chief Judge 
Anthony Scirica and Judge Robert Cowan-- both 
Reagan appointees--saying that they were applying 
a different, and unattainable standard of proof 
to Abu-Jamal than they had been using for other cases brought before them.

In rejecting Abu-Jamal’s claim of racial bias in 
jury selection­something known as a Batson 
violation, after the Supreme Court’s 1986 
decision in Batson v Kentucky­the court majority 
wrote that Abu-Jamal had not made a timely 
protest over prosecutor McGill’s rejection of 10 
black jurors without cause (McGill used 15 of his 
20 available peremptory challenges to remove at 
least 10 qualified black and 5 qualified white 
jurors). The majority also proposed that because 
Abu-Jamal had not provided the court with the 
racial makeup of the jury pool, it was impossible 
to know whether perhaps two-thirds of that pool 
might have been black, giving an “innocent 
explanation” to McGill’s 66.7% black rejection 
rate. (Local attorneys scoff at such a notion, 
saying they've never seen a jury pool so skewed racially.)

Judge Ambro blasted this logic, saying that the 
US Supreme Court had established that “excluding 
even a single person from a jury because of race 
violated the Equal Protection Clause of our 
Constitution.” Significantly, the nation's High 
Court just affirmed that position March 19 with a 
powerful 7-2 ruling in a Louisiana death penalty case (Snyder v. Louisiana).

Judge Ambro then accused his robed colleagues of 
having a double standard, saying “Our Court has 
previously reached the merits of Batson claims on 
habeas review in cases where the petitioner did 
not make a timely objection during jury 
selection­signaling that our Circuit does not 
have a federal contemporaneous objection rule­and 
I see no reason why we should not afford 
Abu-Jamal the courtesy of our precedents.” He 
added, “Why we pick this case to depart from that reasoning I do not know.”

Going further, Judge Ambro writes, “We have 
repeatedly said that a defendant can make out a 
prima facie case for jury-selection 
discrimination by showing that the prosecution 
struck a single juror because of race
In fact, in 
United States v. Clemons, we explained that 
'striking a single black juror could constitute a 
prima facie case even when blacks ultimately sit 
on the panel and even when valid reasons exist 
for striking other blacks.’...Yet the majority 
focuses on the absence of information about the 
racial composition and total number of the venire 
[jury pool], claiming that this statistical 
information­from which one can compute the 
exclusion rate­is necessary to assess whether an 
inference of discrimination can be discerned in 
Abu-Jamal’s case. Such a focus is contrary to the 
nondiscrimination principle underpinning Batson, 
and it conflicts with our Court’s precedents, in 
which we have held that there is no “magic number 
or percentage [necessary] to trigger a Batson inquiry,”

One thing Judge Ambro didn’t mention in his 
41-page dissent was the evidence presented by 
Abu-Jamal to the court of a clear history of 
deliberate race purging of juries by the 
Philadelphia DA’s office, and by prosecutor 
McGill in particular. That evidence, developed by 
academic researchers and by attorneys at the 
Federal Defenders’ Office in Philadelphia, show 
that between 1977 and 1986, while Ed Rendell was 
Philadelphia’s District Attorney, local 
prosecutors used peremptory challenges to strike 
qualified blacks from juries in death penalty 
cases 58 percent of the time, compared to 22 
percent of the time for qualified whites. During 
the same period of time, prosecutor McGill 
himself struck qualified black jurors 74 percent 
of the time in death penalty cases he tried, 
compared to 25 percent of qualified white jurors. 
This is seriously damning evidence of racial bias in jury selection.

Interestingly, one of the Third Circuit 
precedents referred to by Judge Ambro was a 2005 
case heard by Judge Sam Alito, now elevated to 
the Supreme Court. In that case, Brinson v 
Vaughn, Alito overturned the appellant’s death 
penalty conviction, writing that "...a prosecutor 
may violate Batson even if the prosecutor passes 
up the opportunity to strike some African 
Americans jurors." Alito further stated in that 
decision that "a prosecutor's decision to refrain 
from discriminating against some African 
Americans does not cure discrimination against 
others." (Significantly, the High Court’s latest 
Snyder decision opinion was also penned by 
Justice Alito, who shows himself to be a 
passionate opponent of racism in jury selection.)

What appears to be happening here, and what 
obviously upset Judge Ambro, is that the other 
two judges, Scirica and Cowan, are demonstrating 
another example of what my colleague, 
Philadelphia journalist Linn Washington, has dubbed the “Mumia Exception.”

Washington has noted that on several occasions 
during Abu-Jamal’s epic 26-year battle to survive 
Pennsylvania’s death row machine, the state’s 
courts have altered the rules to keep him locked 
up and on course for execution. Pennsylvania’s 
top court in 1986 overturned a death sentence 
where McGill, the same prosecutor in Abu-Jamal’s 
case, had made the same closing statement to 
jurors at the conclusion of a murder trial 
presided over by Judge Sabo, the same trial judge 
who presided in Abu-Jamal’s case. The court, 
declaring that the prosecutor’s language had 
“minimize[ed] the jury’s sense of responsibility 
for a verdict of death,” had ordered a new trial 
that time. Three years later in 1989, despite 
this precedent and presented with an identical 
situation involving the same characters, the same 
court reversed itself, though, upholding 
Abu-Jamal’s conviction. Eleven years later, 
Pennsylvania’s highest court reversed track 
again, barring such language by prosecutors “in 
all future trials,” but not making their decision 
retroactive to include Abu-Jamal.


Another example of this judicial “special 
handling” where Abu-Jamal’s case is concerned, 
involves the right of allocution – the right of 
the convicted to make a statement without 
challenge before sentencing. One month before 
initially upholding Abu-Jamal’s conviction in 
March 1989, the Pennsylvania Supreme Court issued 
a ruling declaring the right of allocution to be 
of “ancient origin” and saying that any failure 
to permit a defendant to plead for mercy demanded 
reversal of sentence. Abu-Jamal’s appeal claimed 
Judge Sabo, by allowing the prosecutor to 
question Abu-Jamal on the stand after the 
convicted defendant had made just such a 
statement to jurors, violated his allocution 
right during the ’82 trial. The state’s high 
court, however – for the first time in its 
history – ruled that the “right of allocution 
does not exist in the penalty phase of capital murder prosecution.”

      In yet a third example, Common Pleas Judge 
Pat Dembe, hearing a request by Abu-Jamal for a 
new Post-Conviction Relief Act Hearing on his 
case after testimony from people who had 
overheard his trial and PCRA judge vow to "fry 
the nigger" at the close of his trial's opening 
day, asserted that he had no case because 
"...since this was a jury trial, as long as the 
presiding judge's rulings were legally correct, 
claims as to what might have motivated or 
animated those rulings are not relevant."

This flip-flopping on allocution, on acceptable 
language for prosecutors, on the importance of 
judges being impartial, and on other legal 
precedents, all led Amnesty International to 
conclude in its 2001 report on Abu-Jamal’s case 
that the state’s highest court improperly invents 
new standards of procedure “to apply it to one 
case only: that of Mumia Abu-Jamal.”

Justice, that is to say, has not always been 
blind in this case. A “Mumia Exception” had been established.

And now this stain on Pennsylvania jurisprudence 
appears to have migrated to the federal court system, at the Third Circuit.

Says Washington, “This decision once again shows 
that in the Abu-Jamal case, evidence is not 
important. As with the Pennsylvania courts, this 
federal court ignored its own precedents in 
reaching a result that is contrary to the facts 
and to the law. The reason for this is what 
Amnesty International pointed out in their 2001 
report: The Abu-Jamal case is hopelessly polluted 
by politics, which precludes any justice in this case.”

Robert Bryan, Abu-Jamal’s lead attorney, said the 
third Circuit Court’s upholding of the death 
penalty reversal was a “major victory,” but he 
said, “The fact that the court majority turned a 
blind eye to the racially discriminatory 
practices of the DA’s office is outrageous.”

Current Philadelphia District Attorney Lynn 
Abraham continued that outrageous behavior, and 
gave a demonstration of the toxic politics that 
affects the justice system where this case is 
concerned, at a press conference following the 
announcement of the court’s decision, where she 
referred to Abu-Jamal repeatedly as an 
“assassin.” In fact, at no point during the trial 
was there ever any claim by the prosecution, or 
any witness testimony, to even remotely suggest 
that Abu-Jamal had “targeted” Faulkner for death. 
Rather, the prosecution claimed that he had 
coincidentally been parked in a taxi he was 
driving, across the street from where his brother 
William had been stopped on a traffic violation 
by Faulkner, and had come across the street when 
his brother and the officer became involved in an 
altercation. To wrongly label the ensuing double 
shooting of Faulkner and Abu-Jamal an 
“assassination” as Abraham did, implying a 
political “hit” on Faulkner, was clearly aimed at 
inflaming public sentiment against Abu-Jamal. It 
was the same thing prosecutor McGill had 
attempted to do when, after the verdict, during 
his summation to the jury in the penalty phase of 
the trial back in ‘82, he brought out an old news 
clipping of an interview with a 15-year-old 
Abu-Jamal in which the defendant had quoted 
Chinese revolutionary leader Mao Tse-tung as 
saying “power flows from the barrel of a gun.” 
(The context of that full article made it clear 
the young Abu-Jamal was referring in that quote 
to the power of police, who had just 
"assassinated" Panther leader Fred Hampton in his 
bed in a raid on a house in Chicago.)

With all three of Abu-Jamal’s habeas claims for 
an overturning of his conviction rejected, his 
case now moves to the US Supreme Court, with a 
possible stop along the way for a hearing by the 
full Third Circuit bench. Abu-Jamal’s attorney 
Bryan says he plans to file a request for such an 
en banc reconsideration of the ruling by the full 
Third Circuit within the next two weeks. Neither 
the full Third Circuit, nor the Supreme Court, 
are obligated to hear the case, which would make 
the current Third Circuit decision the final word on his conviction.

Bryan said, “Judge Ambro’s dissent in the Batson 
decision was very powerful, and we will certainly 
be using it in our arguments to the full Third 
Circuit and to the Supreme Court."

As for the overturned death penalty ruling, which 
the DA’s office will certainly also appeal to the 
High Court, should it be sustained, there are two 
options. The DA could decide to leave things at 
that­something McGill, interviewed shortly after 
Judge Yohn’s initial ruling, said was being 
considered­in which case Abu-Jamal would face 
life in prison with no possibility of parole. He 
would not, however, have to spend more time in 
the near solitary confinement torture of 
Pennsylvania’s maximum-security death row, but 
would be moved to a regular prison. 
Alternatively, the DA could decide to go to a 
Philadelphia court and impanel a new jury to 
conduct just a sentencing hearing, in hopes of 
winning a new death penalty. Such a limited trial 
would not address guilt or innocence--only punishment.

Given fairer rules regarding jury selection, and 
the larger minority population in today’s 
Philadelphia, and Abu-Jamal's having better legal 
representation, it is hard to imagine the DA 
succeeding in convincing 12 fairly chosen 
Philadelphia jurors to sentence journalist him to 
death for a crime for which he has already served 
26 hard years’ time. Moreover, because a 
defendant is entitled to subpoena witnesses in 
his defense, the DA would run the risk that 
Abu-Jamal could use such a trial to introduce new 
evidence of innocence, opening the door to 
further appeals of his underlying conviction. For 
these reasons, an effort to win a new death sentence seems unlikely.

The legal stymieing of Abu-Jamal’s efforts to win 
a new trial comes at a time of growing questions 
regarding his guilt, or at least the veracity of 
the witnesses and the evidence used to convict 
him on a first-degree murder charge.

Last year, photos were discovered that had been 
taken by a freelance news photographer of the 
crime scene on the south side of Locust Street at 
13th Street in Philadelphia’s Center City only 
minutes after police had arrived and after the 
wounded Abu-Jamal and the clinically dead 
Faulkner had been taken off to Jefferson 
Hospital. These photos show police tampering with 
evidence, including the both Abu-Jamal’s and 
Faulkner’s guns as well as the officer’s police 
hat. Photos of the bloody spot on the sidewalk 
where Faulkner lay as he was shot by a bullet to 
the face at close range show no sign of craters 
where three other shots Abu-Jamal is alleged to 
have fired from a position astride the officer 
and that missed should have left their marks in 
the concrete, raising questions about the 
testimony of two alleged eyewitnesses to the 
shooting. Those same photos also show no taxicab 
parked behind Faulkner’s parked squad car in the 
place one of those witnesses, Robert Chobert, 
claimed he had been stopped. The missing cab 
raises questions about the veracity of Chobert’s 
claim to have witnessed Faulkner’s murder.

Other witnesses are still coming forward since 
the trial, who also challenge the prosecution’s 
story, but without a new trial, it is not clear 
that their evidence will ever be heard.

Abu-Jamal’s attorney says Abu-Jamal told him this 
morning that he was “disappointed” in the result, 
but that he “hopes the reversal of the death 
penalty will help others on death row, and says, 'The struggle continues!’”
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DAVE LINDORFF 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.opednews.com/maxwrite/www.thiscantbehappening.net>www.thiscantbehappening.net




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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