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Posted on Wed, Apr. 2, 2008 <br><br>
<br><br>
</font><h1><b>'Mumia Exception's' ugly head again<br><br>
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</b></h1><h2><b>Appeals court followed Phila. pattern of
rule-altering.</b></h2><font size=3>Dave Lindorff <br><br>
is an investigative journalist <br><br>
Largely missing from coverage of Thursday's Third Circuit rejection of
Mumia Abu-Jamal's murder-conviction appeal was a 41-page dissent by Judge
Thomas Ambro, one of the panel's three judges. <br><br>
In a stinging dissent on the rejection of Abu-Jamal's so-called Batson
claim that his jury had been unconstitutionally purged of blacks, Ambro
said his two colleagues, Chief Judge Anthony Scirica and Judge Robert
Cowan, had ignored precedents from the U.S. Court of Appeals for the
Third Circuit and arbitrarily set a higher bar for this particular
appellant. <br><br>
Ambro writes, "Our court has previously reached the merits of Batson
claims . . . where the petitioner did not make a timely objection during
jury selection . . . and I see no reason why we should not afford
Abu-Jamal the courtesy of our precedents." <br><br>
In fact, evidence of racial bias in jury selection in this case is hard
to deny. Not only did Prosecutor Joseph McGill use 10 of his peremptory
challenges to remove black jurors who had said they could vote out a
death sentence (compared with only five whites), and not only did he ask
specifically different race-based questions of some of those jurors, but
there is also a documented history of racial jury purging by the
Philadelphia District Attorney's Office, and by prosecutor McGill, during
the early 1980s. Research by academic experts and the Federal Defenders
Office in Philadelphia shows that between 1977 and 1986, under
then-District Attorney Ed Rendell, local prosecutors struck qualified
blacks from juries in capital cases 58 percent of the time, compared with
22 percent of the time for whites. During the same period, McGill struck
qualified black jurors 74 percent of the time, compared with 25 percent
for whites. <br><br>
What obviously upset Ambro is that Scirica and Cowan are demonstrating
another disturbing example of what local journalist Linn Washington has
dubbed the "Mumia Exception." <br><br>
On several occasions during the former Black Panther and local
journalist's 26-year legal odyssey, this state's courts have altered the
rules just to keep Abu-Jamal on course for death. In 1986, the
Pennsylvania Supreme Court overturned a death sentence where the same
Joseph McGill had made an improper closing statement to jurors in a
murder trial. Declaring that McGill's advice to the jury that their
verdict would not be final because of appeals had "minimize[ed] the
jury's sense of responsibility," the court ordered a new trial.
Three years later in 1989, despite this precedent and presented with an
identical statement by McGill to Abu-Jamal's jury, the same court
inexplicably reversed itself, leaving Abu-Jamal's conviction standing.
One year later, the court reversed itself again, barring such language by
prosecutors "in all future trials," but not making the decision
retroactive for Abu-Jamal. <br><br>
"Allocution" - the right of a defendant to make a statement to
jurors at sentencing without challenge - offers another example of the
special handling accorded Abu-Jamal's case. Just a month before
considering Abu-Jamal's appeal in March 1989, the Pennsylvania Supreme
Court ruled the right of allocution to be of "ancient origin."
The court said failure to permit a defendant to plead for mercy demanded
reversal of sentence. But when Abu-Jamal came before the court, saying
that the judge had allowed McGill to question Abu-Jamal after his
allocution statement, the same court ruled that the "right of
allocution does not exist in the penalty phase of capital-murder
prosecution." <br><br>
This judicial flip-flopping led Amnesty International in its 2001 report
on Abu-Jamal's case to conclude that Pennsylvania's highest court simply
rewrites its rules "to apply to one case only: that of Mumia
Abu-Jamal." <br><br>
A "Mumia Exception" has been established. <br><br>
And now this stain on Pennsylvania jurisprudence has migrated to the
federal court system at the Third Circuit. <br><br>
<hr>
</font><font face="Arial, Helvetica" size=2>Dave Lindorff, based in
Philadelphia, is author <br><br>
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.thiscantbehappening.net">
www.thiscantbehappening.net</a>. E-mail him at
<a href="mailto:dlindorff@yahoo.com">dlindorff@yahoo.com</a>. <br><br>
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