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<h1><b>Verdict
Nullification?</b></h1><font size=3>
<a href="http://www.citypaper.net/articles/2007/05/24/verdict-nullification?userCreated=&commentPosted=0#posted" eudora="autourl">
http://www.citypaper.net/articles/2007/05/24/verdict-nullification?userCreated=&commentPosted=0#posted<br>
<br>
</a></font><h2><b>Like it or not, Mumia may get a new trial.<br><br>
<br>
</b></h2><h3><b>by Dave Lindorff</b></h3><font size=3>Published: May 23,
2007 <br><br>
<br>
When the name Mumia Abu-Jamal comes up in local conversation, the debate
immediately begins over whether he is guilty of a murder that has kept
him on Pennsylvania's death row for 25 years. Rarely does it address the
underlying question of whether he had a fair trial or appeal process.
<br><br>
Now, three 3rd U.S. Circuit Court of Appeals judges are mulling key
elements that pertain to that very crucial question. They are also
considering whether to uphold a 2001 decision by Federal District Judge
William Yohn that overturned Abu-Jamal's death sentence for the Dec. 9,
1981, murder of Philadelphia police officer Daniel Faulkner. <br><br>
The key claim argued before the three-judge panel during a
two-and-a-half-hour hearing last Thursday (May 17) in the packed
Ceremonial Courtroom of the federal courthouse was whether the prosecutor
at the 1982 trial, Joseph McGill, improperly removed potential qualified
jurors because of race. <br>
<br>
In 1995, the District Attorney's office admitted that McGill used 10 of
15 peremptory challenges requests to strike jurors from consideration,
for which no reason has to be given to remove black jurors who
otherwise met the requirements to be on the panel, including a
willingness to vote for death. This means that, of 14 possible qualified
African-American jurors, McGill eliminated 10. That compares to only five
white jurors that he peremptorily dismissed out of a possible 25. And it
left Abu-Jamal's jury with nine whites and three blacks in a city that
was 44 percent black (the gap widened when a black juror was removed by
the judge and replaced by a white alternate, with the enthusiastic
endorsement of McGill). <br><br>
On its face, that would seem to be <i>prima facie</i> evidence of racial
discrimination that would normally warrant a hearing, but there is more:
Over the course of six murder trials that he tried, McGill used his
peremptory challenges to remove 74 percent of qualified black jurors,
compared to only 25 percent of white jurors. Moreover, McGill's methods
were part of a pattern prevailing during the two terms of McGill's boss,
then D.A. Ed Rendell. Under Rendell, prosecutors barred 58 percent of all
blacks via peremptory challenges, compared to just 22 percent of whites.
<br><br>
Abu-Jamal's lead attorney, Robert R. Bryan, cited these statistics and
noted that during jury questioning, McGill asked different questions of
blacks than whites, and used different standards in deciding whom to
remove. <br><br>
Rather than contest the statistics and other evidence of racial
discrimination in jury selection, Hugh Burns the head of the DA's
appeals unit, he argued the state's case against Abu-Jamal claimed that
Abu-Jamal had no right to raise the issue in federal court. Burns alleged
that Abu-Jamal had missed his chance to do so in 1995, during his
Post-Conviction Relief Act (PCRA) hearing, or subsequent appeal to the
state supreme court. <br><br>
The problem with the DA's argument? Much evidence of race-based jury
selection did not come to light until 1998, a year after Abu-Jamal's
final appeal had been decided. Since Abu-Jamal couldn't have had that
evidence until his state appeal was over, it was first presented in his
federal habeas appeal in 1999. <br><br>
A second line of appeal by Abu-Jamal, briefly discussed at last week's
hearing, was a statement made by McGill during his summation on the last
day of the trial; he told jurors that if they had doubts about the
defendant's guilt, they needn't worry, because, "If you find the
defendant guilty of course there would be appeal after appeal and perhaps
there could be a reversal of the case, or whatever, so that may not be
final." (Juries are supposed to reach a guilty verdict only if the
case was proven "beyond a reasonable doubt.") This was no slip
by McGill, who used identical language in another case, which is why the
state Supreme Court, in 1986, overturned that defendant's death sentence.
<br><br>
Now, Abu-Jamal is asking the appeals court to overturn his conviction on
the same grounds. He seemed to have won some support from at least one
judge, Robert Cowen. <br><br>
When prosecutor Burns argued that McGill's statement could justify only
overturning a sentence, not conviction, Cowen asked, "But isn't what
the prosecutor said a denial of [the defendant's] right to a fair
trial?" <br><br>
There were many problems with Abu-Jamal's trial, his lawyers and
supporters maintain. He was provided with almost no funds for ballistics
or forensic experts. Records of interrogations show that prosecution
witnesses were pressured by police over the course of six months to alter
their testimony to comport with the prosecution's crime scenario. For
example, white taxi driver Robert Chobert, who originally told police the
shooter had fled the scene, later graphically described seeing Abu-Jamal
do the shooting, execution-style. Chobert was uniquely vulnerable to
pressure from prosecutors he had been driving on a license that had
been suspended for a DWI conviction, and was also on five-years'
probation for felony arson in the fire-bombing of an elementary school
for money. Neither this information nor the fact that he had asked the DA
to help him "fix" his license was allowed to go to the jury.
<br><br>
The point is that when people develop opinions about this controversial
case, particularly in Philadelphia, they tend to base them on the fact of
Abu-Jamal's conviction, and then, working on the assumption that the jury
accepted the facts as presented at trial to be true, go on to proclaim
him guilty of Faulkner's murder. <br><br>
What if the conviction itself, however, was the result of a pre-selection
of jurors inclined to believe the prosecutor, think Judge Albert Sabo was
fair and believe police officers and prosecution witnesses? And if,
moreover, those jurors were allowed to be assured by the prosecutor that
the standard for conviction needn't be "proof beyond a reasonable
doubt," then what certainty is there about any of the
"facts" presented at the trial, or about the verdict? <br><br>
This is why the appeal now being considered by the three judges of the
3rd Circuit Chief Judge Anthony Scirica, Judge Cowen and Judge Thomas
Ambro is critical. If justice and the hallowed constitutional right to
a fair trial are to have any real meaning in the United States, it is
essential that juries be chosen in a manner that is fair, not stacked,
and it is essential that if the resulting jury convicts especially in a
capital case it be on the basis of "proof beyond a reasonable
doubt." <br><br>
As the arguments presented at the 3rd Circuit hearing made clear, there
are solid reasons to doubt that either of those things happened in
Abu-Jamal's case. Philadelphians need to be prepared to accept that if at
least two judges on the appeals court panel reach that conclusion, there
will be no way to convincingly argue that Abu-Jamal "did it,"
until the evidence is presented fairly at a new trial. <br><br>
<div align="right">(<a href="mailto:editorial@citypaper.net">
editorial@citypaper.net</a>) <br><br>
</div>
Dave Lindorff, a Philadelphia-area investigative journalist and
columnist, is author of Killing Time: An Investigation into the Death
Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2004). <br><br>
<br><br>
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