[Ppnews] “The Mumia Exception”

Political Prisoner News ppnews at freedomarchives.org
Tue May 5 17:31:45 EDT 2009

“The Mumia Exception”

by <http://crimemagazine.com/poconnor.htm>J. Patrick O’Connor

Since his conviction in 1982 for the murder of 
Philadelphia Police Officer Daniel Faulkner, 
Mumia Abu-Jamal, through his numerous books, 
essays and radio commentaries, has become the 
face of the anti-death penalty movement in the 
United States and an international cause célèbre. 
Paris, for example, made him an honorary citizen 
in 2003, bestowing the honor for the first time 
since Pablo Picasso received it in 1971. The 
“Free Mumia” slogan is seen and heard around the 
world. Over the last 27 years he has become the 
most visible of the invisible 3,600 Death Row inmates in the United States.

The case of Mumia Abu-Jamal cries out for justice 
not because he is famous but because he is 
innocent. Kenneth Freeman, the street-vendor 
partner of Abu-Jamal’s younger brother, Billy 
Cook, killed Officer Faulkner moments after 
Faulkner shot Abu-Jamal in the chest as he 
approached the scene where Faulkner had pulled 
over the car Cook was driving. When Faulkner 
began beating Cook with an 18-inch long 
flashlight, Abu-Jamal ran from his nearby taxi to 
come to his brother’s aid. After Abu-Jamal was 
shot and collapsed to the street, Freeman emerged 
from Cook’s car, wrestled Faulkner to the 
sidewalk and then shot him to death. Freeman fled 
the scene on foot. Numerous witnesses told police 
they saw one or more black men fleeing right 
after the officer was shot. A driver’s license 
application found in Faulkner’s shirt pocket led 
the police directly to Freeman’s home within hours of the shooting.

But the police did not want Freeman for this 
killing, releasing him without him even having to 
call his attorney. The police, led by the corrupt 
Inspector Alfonzo Giordano who took charge of the 
crime scene within minutes of the shooting, 
wanted to pin Faulkner’s death on the 
blacked-out, police-bashing radio reporter at the 
scene. Freeman they would deal with later, meting 
out their own brand of street justice in the dead of night.

Five days after Faulkner’s death, the Center City 
newsstand where Freeman and Billy Cook operated a 
vending stand burned to the ground at about 3 
a.m. Freeman told a Philadelphia Inquirer 
reporter hours after the arson that “there was no 
question in my mind that the police are behind 
this.” The Inquirer also quoted a Center City 
police officer who was on patrol in the area that 
morning as saying, “It’s entirely possible” that 
“certain sick members” of his department were 
responsible. “All I know is when I got to the 
station to start my shift at 7:30 this morning, 
the station house was filled with Cheshire 
grins.” Although the “unsolved” arson bankrupted 
Freeman and Cook, a worse fate awaited Freeman.

On the night in 1985 when the police infamously 
firebombed the MOVE home and burned down 60 other 
row houses in the process, incinerating 11 MOVE 
members including five children, Freeman’s dead 
body would be found nude and gagged in an empty 
lot, his hands handcuffed behind his back. There 
would be no police investigation into this 
obvious murder: the coroner listed his cause of 
death as a heart attack. Freeman was 31.

Abu-Jamal had been well known to local police 
since he joined the Philly chapter of the Black 
Panther Party at age 15. The next year he was 
named “lieutenant of information,” an appointment 
the Inquirer ran on its front page, picturing the 
young radical at Panther headquarters. Even 
though the chapter would soon dissolve, both the 
police and the FBI continued to monitor Abu-Jamal 
when he left Philadelphia to attend Goddard 
College in Vermont and on his return to 
Philadelphia to take up his radio career. As his 
career took wing, landing him a high-profile job 
at Philadelphia’s public radio station, that 
scrutiny intensified due to his overtly 
sympathetic coverage of the radical 
counter-culture group MOVE. Throughout the 1970s 
and well into the 1980s, police confrontations 
with MOVE were brutal displays of civic discord 
and police abuse that culminated in the 1985 firebombing.

Abu-Jamal’s case has been politically charged 
from the beginning. By the time he was arrested 
for the murder of Officer Faulkner, he was a 
marked man to the police for his Black Panther 
Party association and his favorable reporting of 
MOVE. Inspector Giordano, who detested both 
Abu-Jamal and MOVE, would set the framing of 
Abu-Jamal in motion by falsely claiming that 
Abu-Jamal had told him in the paddy wagon that he 
had killed Faulkner. (Giordano would not be 
called by the prosecution to reiterate his 
fabrication at Abu-Jamal’s trial. Instead, on the 
first business day following Abu-Jamal’s 
sentencing, Giordano would be “relieved” of his 
duties by the police department on what would 
prove to be well-founded “suspicions of 
corruption.” An FBI probe of rank corruption 
within the Philadelphia Police Department – the 
largest ever conducted by the U.S. Justice 
Department of a police force – would lead to 
Giordano’s conviction four years later. The FBI 
investigation would ensnare numerous other 
high-ranking Philadelphia police officials and 
officers, many of them involved in Abu-Jamal’s 
arrest and trial. Deputy Police Commissioner 
James Martin, who was in charge of all major 
investigations, including Faulkner’s death, was 
the ringleader of a vast extortion enterprise operating in City Center.)

The trial of Abu-Jamal was a monumental 
miscarriage of justice from beginning to end, 
representing an extreme case of prosecutorial 
abuse and judicial bias. A pamphlet published by 
Amnesty International in 2000 stated it had 
“determined that numerous aspects of Mumia 
Abu-Jamal’s case clearly failed to meet minimum 
standards safeguarding the fairness of legal proceedings.”

The trial judge, Common Pleas Court Judge Albert 
F. Sabo, presided at more trials that resulted in 
the defendants receiving the death penalty than 
any judge in the nation. Of the 31 so sentenced, 
five won reversals on appeal, an indication of 
extreme judicial bias. The Inquirer called him “a 
defendant’s worst nightmare,” a prominent defense 
attorney referred to him as “a prosecutor in 
robes.” A former court stenographer said in an 
affidavit in 2001 that during Abu-Jamal’s trial 
she overheard Sabo tell someone at the 
courthouse, “Yeah, and I am going to help them fry the nigger.”

During the third day of jury selection, Sabo 
stripped Abu-Jamal of his right to represent 
himself and interview potential jurors despite 
the fact that the Inquirer reported Abu-Jamal was 
“intent and business like” in his questioning. On 
the second day of the trial, Sabo removed 
Abu-Jamal from the courtroom for insisting that 
MOVE founder John Africa replace his court 
appointed backup counsel, Anthony Jackson. In 
turn, Sabo appointed Jackson to represent 
Abu-Jamal. This would put to rout the possibility of a fair trial.

Abu-Jamal’s first major appeal issue developed 
during jury selection when the prosecutor, 
Assistant D.A. Joseph McGill, used 10 or 11 of 
the 15 peremptory challenges he exercised to keep 
otherwise qualified blacks from sitting on this 
death-penalty-vetted jury. In a city with more 
than a 40 percent black population at the time, 
Abu-Jamal’s jury ended up with only two blacks. 
In 1986 – four years after Abu-Jamal’s trial – 
the U.S. Supreme Court ruled in Batson v. 
Kentucky that it was unconstitutional for a 
prosecutor to exclude potential jurors on the 
basis of race. The ruling was retroactive.

The second major constitutional claim that would 
arise occurred at the end of the guilt phase of 
the trial when the prosecutor referenced the 
appeal process in his summation to the jury. He 
told the jury that if they found Abu-Jamal guilty 
of murder in the first degree that “there would 
be appeal after appeal and perhaps there could be 
a reversal of the case, or whatever, so that may not be final.”

Although Officer Faulkner had been killed by 
Kenneth Freeman, the prosecution mounted its 
evidentiary case against Abu-Jamal on the 
perjured testimony of a prostitute informant and 
a cab driver with a suspended license for two 
DUIs who was on probation for throwing a Molotov 
cocktail into a school yard during a school day. 
Both of these witnesses had been handpicked by Giordano at the crime scene.

“The Mumia Exception”

As Amnesty International established in its 2000 
pamphlet entitled “The Case of Mumia Abu-Jamal: A 
Life in the Balance,” his tortuous appeal process 
has been fraught with “judicial machinations.” 
Claims that won the day in other cases were repeatedly denied him.

In 1989, the Pennsylvania Supreme Court turned 
down his first appeal even though one of his 
claims was almost identical to one that had 
persuaded the same court to grant Lawrence Baker 
a new trial in 1986. In that case, Commonwealth 
v. Baker, the court overturned Baker’s death 
sentence for first-degree murder on the grounds 
that the prosecutor improperly referenced the 
lengthy appeal process afforded those sentenced 
to death. That prosecutor – Joseph McGill – was 
the same prosecutor who used similar – almost 
verbatim – language in his summation during both 
the guilt and sentencing phases of Mumia’s trial. 
The judge who failed to strike the language in 
the Baker case was the same judge who presided at 
Mumia’s trial, Common Pleas Court Judge Albert F. Sabo.

The State Supreme Court ruled in Baker that the 
use of such language “minimize[ed] the jury’s 
sense of responsibility for a verdict of death.” 
When Abu-Jamal’s appeal included the very same 
issue, the court reversed its own precedent in 
the matter, denying the claim in a shocking unanimous decision.

A year later, in Commonwealth v. Beasley, the 
Pennsylvania Supreme Court reinstated the death 
sentence of Leslie Beasley, but exerted its 
supervisory power to adopt a “per se rule 
precluding all remarks about the appellate 
process in all future trials.” This rule not only 
reinstated the Baker precedent but it ordered all 
prosecutors in the state to refrain once and for 
all from referencing the appellate process in 
summations to the jury. The court could have made 
this new rule retroactive to Mumia’s case, but did not.

As Amnesty International declared in its pamphlet 
about the case, the Pennsylvania Supreme Court’s 
judicial scheming leave “the disturbing 
impression that the court invented a new standard 
of procedure to apply to one case only: that of 
Mumia Abu-Jamal,” Temple University journalism 
professor Linn Washington aptly dubs this and 
subsequent court decisions denying Mumia a new trial “the Mumia exception.”

Abu-Jamal’s Post-Conviction Relief Act hearing in 
1995 was doomed from the beginning when Judge 
Sabo – the original trial judge – would not 
recuse himself from the case and the Pennsylvania 
Supreme Court would not remove him for bias.

Abu-Jamal’s federal habeas corpus appeal – 
decided by Federal District Judge William Yohn in 
2001 – should have resulted in at least an 
evidentiary hearing on Abu-Jamal’s Batson claim 
that the prosecutor unconstitutionally purged 
blacks from the jury by using peremptory strikes 
to exclude 10 or 11 otherwise qualified black 
jurors from being empanelled. Abu-Jamal’s 
attorneys had included a study conducted by 
Professor David Baldus that documented the 
systematic use of peremptory challenges to 
exclude blacks by Prosecutor McGill in the six 
death-penalty cases he prosecuted in Common Pleas 
Court in Philadelphia. Abu-Jamal’s trial was one 
of the six trials studied by Baldus. Judge Yohn 
barred the study on the erroneous grounds that 
the study was not from a relevant time period 
when, in fact, it was completely relevant. Judge 
Yohn’s error was egregious and could have been 
easily avoided if he had held one evidentiary 
hearing on that defense claim. But during the two 
years that Judge Yohn considered Abu-Jamal’s 
habeas appeal, he held no hearings.

The U.S. Court of Appeals for the Third Circuit 
should have corrected that district court mistake 
by remanding Abu-Jamal’s case back to Judge Yohn 
to hold the evidentiary hearing on the Batson 
claim, but in another example of the “Mumia 
exception,” the court instead continued the long 
and tortured denial of Mumia’s right to a fair 
trial. In a 2 to 1 decision released on March 27, 
2008 that reeked of politics and racism, the 
court ruled that Abu-Jamal had failed to meet his 
burden in providing a prima facie case. He 
failed, the majority wrote, because his attorneys 
were unable to establish the racial composition of the entire jury pool.

In the decision written by Chief Judge Anthony 
Scirica, the court stated that “Abu-Jamal had the 
opportunity to develop this evidence at the PCRA 
evidentiary hearing, but failed to do so. There 
may be instances where a prima facie case can be 
made without evidence of the strike rate and 
exclusion rate. But, in this case [i.e., “the 
Mumia exception” is in play], we cannot find the 
Pennsylvania Supreme Court’s ruling [denying the 
Batson claim] unreasonable based on this incomplete record.”

In a nutshell, the majority denied Mumia’s Batson 
claim on a technicality of its own invention, not 
on its merits. It also broke with the sacrosanct 
stare decisis doctrine – the principle that the 
precedent decisions are to be followed by the 
courts – by ignoring its own previous opposite 
ruling in the Holloway v. Horn case of 2004 and 
the Brinson v. Vaughn case of 2005. It is a 
general maxim that when a point has been settled 
by decision, it forms a precedent which is not 
afterwards to be departed from. In a Ninth 
Circuit Court of Appeals ruling in 1989 in a case 
entitled United States v. Washington, the 
decision stated that an appeal court’s panel is 
“bound by decisions of prior panels unless an en 
banc decision, Supreme Court decision, or 
subsequent legislation undermines those 
decisions.” None of those variables were in play 
when the Third Circuit Court majority ruled against Mumia’s Batson claim.

Judge Thomas Ambro’s dissent was sharp: “
I do 
not agree with them [the majority] that Mumia 
Abu-Jamal fails to meet the low bar for making a 
prima facie case under Batson. In holding 
otherwise, they raise the standard necessary to 
make out a prima facie case beyond what Batson calls for.”

In other words, the majority, in this case alone, 
has upped the ante required for making a Batson 
claim beyond what the U.S. Supreme Court 
stipulated. When ruling in Batson in 1986, the 
U.S. Supreme Court did not require that the 
racial composition of the entire jury pool be 
known before a Batson claim may be raised. The 
high court ruled that a defendant must show only 
“an inference” of prosecutorial discrimination in 
purging potential jurors. Prosecutor McGill’s 
using 10 or 11 of the 15 peremptory strikes he 
deployed is just such an inference – and an 
extremely strong one. McGill’s strike rate of 
over 66 percent against potential black jurors is 
in itself prima facie evidence of race 
discrimination. Prima facie is a Latin term 
meaning “at first view,” meaning the evidence 
being presented is presumed to be true unless disproved.

In commenting on Holloway v. Horn, a Batson-type 
case with striking similarities to Abu-Jamal’s 
claim, Judge Ambro – the lone Democrat-appointed 
judge on the three judge panel – demonstrated 
just how disingenuous the panel’s ruling against 
Abu-Jamal’s Batson claim was. “In Holloway, Judge 
Ambro wrote in his 41-page dissent, “we 
emphasized that ‘requiring the presentation of [a 
record detailing the race of the venire] simply 
to move past the first state – the prima facie 
stage – in the Batson analysis places an undue 
burden upon the defendant.’ There we found the 
strike rate – 11 of 12 peremptory strikes against 
black persons – satisfied the prima facie 
burden.” In Holloway, the Third Circuit ruled 
that the Pennsylvania Supreme Court’s decision 
denying Holloway’s Batson claim was “contrary to” 
and an “unreasonable application” of the Batson standard.

In fact, in rendering both its Holloway and 
Brinson decision, the Third Circuit specifically 
rejected the requirement that a petitioner 
develop a complete record of the jury pool. In 
making its ruling in Abu-Jamal’s appeal, it 
reversed itself to make the pretext of an 
incomplete jury record his fatal misstep. Basing 
its ruling against Abu-Jamal’s Batson claim on 
this invented pretext demonstrated how desperate 
the majority was to block Abu-Jamal’s Batson 
claim. What the majority was implying was that 
Abu-Jamal’s jury pool may well have consisted of 
60 or 70 percent black people and that therefore 
the prosecutor’s using 66 percent of his strikes 
to oust potential black jurors was statistically 
normal and did not create a prima facie case of 
discrimination. This hypothesis is, of course, 
absurd on its face. Blacks have been 
underrepresented on Philadelphia juries for years 
– and remain so today. What was likely was that 
the jury pool at Abu-Jamal’s trial was at least 70 percent white.

The Third Circuit – if it had followed its own 
precedent – would have found the Pennsylvania 
Supreme Court’s ruling denying Abu-Jamal’s Batson 
claim “contrary to” and an “unreasonable 
application” of the Batson standard and remanded 
the case back to Federal District Court Judge 
Yohn to hold an evidentiary hearing to determine 
the prosecutor’s reasons for excluding the 10 
potential black jurors he struck. If that hearing 
satisfied Judge Yohn that all of the prosecutor’s 
reasons for striking potential black jurors were 
race neutral, the Batson claim would fail. If, 
conversely, that hearing revealed racial 
discrimination on the part of the prosecutor 
during jury selection – even if only concerning 
one potential juror – Judge Yohn would have been 
compelled to order a new trial for Abu-Jamal.

Abu-Jamal’s final opportunity for judicial relief 
was filed with the U.S. Supreme Court in November 
of 2008 in the form of a Petition for a Writ of 
Certiorari. On February 4, the high court 
docketed and accepted that filing. According to 
Abu-Jamal’s lead attorney, Robert Bryan of San 
Francisco, “The central issue in this case is 
racism in jury selection. The prosecution 
systematically removed people from sitting on the 
trial jury purely because of the color of their skin, that is, being black.”

For at least two compelling reasons, it appeared 
that the U.S. Supreme Court would grant 
Abu-Jamal’s petition. In its last term, the high 
court expanded its 1986 Batson ruling in its 
Synder v. Maryland decision to warrant a new 
trial if a minority defendant could show the 
inference of racial bias in the prosecutor’s 
peremptory exclusion of one juror. Under Batson, 
the defense needed to show an inference – i.e., a 
pattern – of racial bias in the overall jury 
selection process. Ironically, the Supreme 
Court’s 7-2 decision strengthening and expanding 
Batson’s reach was written by Justice Samuel 
Alito, most recently of the Third Circuit Court of Appeals.

The second reason was that the Third Circuit’s 
ruling denying Abu-Jamal’s Batson claim 
undermined both the Batson and Synder decisions 
by placing new restrictions on a defendant’s 
ability to file a Batson claim. The Third Circuit 
ruling against Abu-Jamal had the effect of 
creating new law by tampering with a long-established Supreme Court precedent.

As a result, there seemed to be something more 
than a remote possibility that the Supreme Court 
would agree to grant Abu-Jamal’s writ.

A Writ of Certiorari is a decision by the Supreme 
Court to hear an appeal from a lower court. 
Supreme Court justices rarely give a reason why 
they accept or deny Cert. Although all nine 
justices are involved in considering Cert 
Petitions, it takes only four justices to grant a 
Writ of Certiorari, even if five justices are 
against it. This is known as “the rule of four.”

Despite needing only four votes to have his 
Batson claim argued, the Supreme Court on April 
6, 2009 tersely denied Abu-Jamal’s request for a 
writ. The so-called “liberal block” of Justices 
Stevens, Ginsberg, Souter, and Breyer 
disintegrated, yielding to the awesome political 
power of the “Mumia exception.”

Abu-Jamal – who turned 55 on April 24, 2009 – 
will, barring the most unlikely intervention by a 
future governor of Pennsylvania, spend the rest 
of his life in prison for a crime he did not commit.

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