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<b>March 27, 2008<br><br>
</font><font face="Verdana" size=4>Third Circuit Court Rejects Abu-Jamal
Appeal: The "Mumia Exception"<br><br>
</b></font><font face="Verdana" size=2><i>By Dave Lindorff<br><br>
</i>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.<br><br>
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.<br><br>
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.)<br><br>
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.<br><br>
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.<br><br>
In rejecting Abu-Jamal’s claim of racial bias in jury selectionsomething
known as a <i>Batson</i> violation, after the Supreme Court’s 1986
decision in <i>Batson v Kentucky</i>the 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.)<br><br>
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).<br><br>
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.”<br><br>
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 <i>United States v. Clemons</i>, 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 <i>venire</i> [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,”<br><br>
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.<br><br>
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, <i>Brinson v Vaughn</i>, 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.)<br><br>
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.”<br><br>
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.
<br><br>
<br>
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.”<br><br>
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." <br><br>
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.”<br><br>
Justice, that is to say, has not always been blind in this case. A “Mumia
Exception” had been established.<br><br>
And now this stain on Pennsylvania jurisprudence appears to have migrated
to the federal court system, at the Third Circuit.<br><br>
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.”<br><br>
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.”
<br><br>
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.)<br><br>
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 <i>en banc</i> 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.<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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!’”<br>
---------------------<br>
<i>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
<a href="http://www.opednews.com/maxwrite/www.thiscantbehappening.net">
www.thiscantbehappening.net<br><br>
<br><br>
<br>
</a></i>Authors Website:
<a href="http://www.thiscantbehappening.net/" eudora="autourl">
http://www.thiscantbehappening.net<br><br>
</a>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 <br><br>
<br><br>
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