Breaking News
Tue Jan 19, 2010 10:53am EST
http://www.reuters.com/article/idUSTRE60I3GL20100119
WASHINGTON (Reuters) - The U.S. Supreme Court on Tuesday granted an appeal by prosecutors and set aside a ruling that invalidated the death sentence of black political activist Mumia Abu-Jamal for the 1981 murder of a Philadelphia police officer.
His case has become a prominent cause for many death penalty opponents.
In a brief order, the Supreme Court sent the case back to a U.S. appeals court based in Philadelphia for further consideration in view of the high court's recent decision in an Ohio case that had raised similar issues.
The Supreme Court in the Ohio case unanimously reinstated the death sentence of a neo-Nazi convicted of murdering three men. The court's action, which was not a ruling on the merits of the case, could lead to Abu-Jamal's death sentence being reinstated, too.
The appeals court had ruled that Abu-Jamal, 55, deserved a new sentencing hearing because of flawed jury instructions.
Abu-Jamal, a former member of the Black Panthers militant group, was convicted and sentenced to death in 1982 for murdering white Philadelphia police officer Daniel Faulkner in an early morning confrontation on December 9, 1981.
The officer was shot after stopping Abu-Jamal's brother for driving the wrong way down a Philadelphia street. Abu-Jamal, a former radio reporter who was arrested at the scene, has maintained his innocence.
Abu-Jamal's jailhouse writings about the justice system have drawn the attention of many people around the world. His case attracted the support of many death penalty opponents, foreign political leaders and Hollywood celebrities.
The flaw in the jury instructions related to whether the jurors understood how to weigh mitigating circumstances that could have resulted in a sentence other than the death penalty. Under the law, jurors did not have to agree unanimously on the mitigating circumstances.
Prosecutors appealed to the Supreme Court the part of the appeals court decision that invalidated Abu-Jamal's death sentence. The Supreme Court last year let stand the part of the decision that upheld Abu-Jamal's murder conviction.
SOME BACKGROUND:
This past March, the U.S. Supreme Court declined to hear Abu-Jamals appeal for a new guilt-phase trial, but the Court has yet to rule on whether to hear the appeal made simultaneously by the Philadelphia District Attorneys office, which seeks to execute Abu-Jamal without granting him a new penalty-phase trial.
In March 2008, the Third Circuit Court affirmed Federal District Court Judge William Yohns 2001 decision overturning the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn had ruled that sentencing forms used by jurors and Judge Albert Sabos instructions to the jury were potentially confusing, and that therefore jurors could have mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to consider them as weighing against a death sentence.
According to the 2001 ruling, affirmed in 2008, if the DA wants to re-instate the death sentence, the DA must call for a new penalty-phase jury trial. In such a penalty hearing, new evidence of Abu-Jamals innocence could be presented, but the jury could only choose between execution and a life sentence without parole.
The DA is appealing to the U.S. Supreme Court against this 2008 affirmation of Yohns ruling. If the court rules in the DAs favor, Abu-Jamal can be executed without benefit of a new sentencing hearing. If the U.S. Supreme Court rules against the DAs appeal, the DA must either accept the life sentence for Abu-Jamal or call for the new sentencing hearing. Meanwhile, Mumia Abu-Jamal has never left his death row cell.
Mumia Update January 14, 2010
Hans Bennett
www.abu-jamal-news.com
Yesterday there was a huge development in Mumia's case.
According to a posting yesterday on the US Supreme Court's website, the Court has scheduled a conference for this Friday, January 15, to discuss Mumia's case. Specifically, they are looking at the Philadelphia DA's request to have Mumia executed without a new sentencing hearing.
The Supreme Court has apparently been waiting for the ruling on the Spisak case, which was also released yesterday. In Spisak, the court ruled to reinstate Spisak's death sentence, but it is still unclear what impact this ruling will have. The common thread between Mumia and Spisak is the "Mills" precedent, and the Court yesterday ruled that Spisak's case did not meet the standards of Mills.
This is the link to the Supreme Court posting:
http://origin.www.supremecourtus.gov/docket/08-652.htm
Posted at www.prisonradio.org will be copies of the briefs and decisions.
Copy of U.S. Supreme Court ruling in Spisak.
Click here for a copy of the amicus brief by the District Attorney in Mumia's case.
SOME BACKGROUND:
This past March, the U.S. Supreme Court declined to hear Abu-Jamals appeal for a new guilt-phase trial, but the Court has yet to rule on whether to hear the appeal made simultaneously by the Philadelphia District Attorneys office, which seeks to execute Abu-Jamal without granting him a new penalty-phase trial.
In March 2008, the Third Circuit Court affirmed Federal District Court Judge William Yohns 2001 decision overturning the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn had ruled that sentencing forms used by jurors and Judge Albert Sabos instructions to the jury were potentially confusing, and that therefore jurors could have mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to consider them as weighing against a death sentence.
According to the 2001 ruling, affirmed in 2008, if the DA wants to re-instate the death sentence, the DA must call for a new penalty-phase jury trial. In such a penalty hearing, new evidence of Abu-Jamals innocence could be presented, but the jury could only choose between execution and a life sentence without parole.
The DA is appealing to the U.S. Supreme Court against this 2008 affirmation of Yohns ruling. If the court rules in the DAs favor, Abu-Jamal can be executed without benefit of a new sentencing hearing. If the U.S. Supreme Court rules against the DAs appeal, the DA must either accept the life sentence for Abu-Jamal or call for the new sentencing hearing. Meanwhile, Mumia Abu-Jamal has never left his death row cell.
Mumia Abu-Jamal's Life May Hinge on Case of Neo-Nazi Triple Murderer
Shannon P. Duffy The Legal Intelligencer October 14, 2009
In a bizarre twist of fate, Mumia Abu-Jamal -- the convicted cop killer whose quarter century on death row in Pennsylvania has made him internationally famous -- may find that his very life hinges on the outcome of a U.S. Supreme Court argument on Tuesday in the case of a neo-Nazi triple murderer who wore a Hitler mustache at trial as he testified proudly about his desire to kill blacks, Jews and gays.
For Abu-Jamal, the stakes couldn't be higher. And the worst-case scenario is that the decision in the Ohio case, Smith v. Spisak, could directly lead to a reinstatement of Abu-Jamal's death sentence.
But the justices may never reach the legal issues that Abu-Jamal shares with Frank Spisak, the neo-Nazi convicted in that case. That could happen if the high court instead focuses entirely on issues relating to whether Spisak's defense lawyer at trial did such a poor job in delivering his closing argument in the death penalty phase that his death sentence cannot stand.
If Spisak secures a victory purely on those grounds, the justices might find it unnecessary to rule on a second issue -- whether the jury instructions were confusing and faulty in Spisak's (and in Abu-Jamal's) case.
Abu-Jamal's case has been in a kind of legal limbo since April. The justices rejected Abu-Jamal's petition for certiorari -- effectively upholding his conviction for the murder of Philadelphia Police Officer Daniel Faulkner -- but took no action on a petition from the Philadelphia district attorney seeking to have his death sentence reinstated.
It soon became clear that the justices were holding the Philadelphia prosecutors' petition in abeyance because they had agreed to hear Spisak's case, which raised a nearly identical issue.
Typically in such cases, the justices decide the first case and then, if necessary, issue summary reversals in the other pending cases that raised the same issue, sending them back to the lower courts to reconsider in light of the high court's most recent pronouncement.
The issue that Abu-Jamal shares with Spisak is that both men won court rulings that overturned their death sentences based on Mills v. Maryland, a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.
In Mills, the justices struck down a Maryland statute that said juries in capital cases must be unanimous on any aggravating or mitigating factor.
The 5-4 decision declared that unanimity was properly required only for "aggravating" factors that support death sentences, but that mitigating factors -- those that weigh against imposing a death sentence -- must be handled more liberally, with each juror free to find on his or her own.
The question now before the courts is whether Mills requires that death sentences in other states be overturned if the juries in those states are misled by faulty instructions or verdict forms to believe that mitigating factors require unanimity.
Perhaps even more important to the justices is a corollary question of federalism: Is it fair for the federal courts to overturn a state court's decision on how to interpret Mills by imposing its own interpretation that extends Mills beyond its original scope?
A BIZARRE CLOSING ARGUMENT
But in Tuesday's argument, the justices spent most of their time discussing Spisak's second argument -- that his trial lawyer had delivered such a poor closing argument in the penalty phase that he was effectively denied effective representation.
On that point, the justices were all over the map.
"Have you ever heard or read a defense summation that was more derogatory of the defendant than the summation here?" Justice Samuel A. Alito Jr. asked Ohio Attorney General Richard Cordray.
Cordray insisted that the trial lawyer had done the best he could with "the bed that was made by his client, who got on the stand for days on end and spewed his racist propaganda, made it clear that he was not only unrepentant but was triumphant."
Alito pressed the point, saying the lawyer told the jury that Spisak demanded no sympathy, and asked: "Isn't that exactly what he has to appeal for in order not to get a death verdict, sympathy based on mental illness, despite the horrific crimes that this person committed?"
Cordray disagreed, saying he considered the lawyer's speech to be part of a "coherent strategy" that was premised on telling the jury: "I can sense that you are not feeling sympathy for my client. Do what makes you a humane people, what makes us proud as a people, and do not give the death penalty to a person who is sick, demented, twisted, as my client has shown himself to be."
Justice Ruth Bader Ginsburg described the closing argument as "disjointed" and said, "it goes off on tangents that have nothing to do with the sentence. ... I mean, it really is quite a stream of consciousness."
But Ginsburg also asked Spisak's lawyer, Michael Benza of Chagrin Falls, Ohio: "Do you know of any case where ineffective assistance was found on the basis of a closing argument alone?"
Benza conceded he did not, but insisted that was only because Spisak's case was "such an outlier."
"I have been litigating capital cases since 1993. I have never seen a closing argument like this," Benza said.
A group of 20 law professors who teach trial advocacy filed an amicus brief supporting Spisak that urged the justices to declare that his trial lawyer's speech "was deficient to such a level that it constituted ineffective assistance of counsel."
But several justices seemed inclined to approve of the argument as a sound strategy.
As Justice Stephen Breyer described it: "It makes sense logically to say he has the worst defendant he has ever seen. He's murdered lots of people in cold blood. He gets up on the stand and says: I'm going to kill a lot more.' He sounds totally bonkers."
Breyer said he interpreted the trial lawyer's strategy as recognizing that his insanity defense had failed, but nonetheless arguing to the jury, "We don't execute people who are crazy and this guy is crazy."
Justice Antonin Scalia went further, saying, "I thought it was a brilliant closing argument. ... Have you ever conducted a capital case in which the defendant takes the stand with a Hitler mustache and says he's glad for what he's done and he will do it again? ... This was an extraordinary trial, and it seems to me that the technique that counsel used to try to get mercy for this fellow was the best that could have been done."
In telephone interviews Tuesday afternoon, lawyers on both sides of the Abu-Jamal case expressed guarded optimism about the outcome in the Spisak case.
FACTS DIFFERENT ENOUGH?
Attorney Robert Bryan of San Francisco, the lead lawyer for Abu-Jamal, said he believes the Mills issue as it arose in Spisak's case is factually and procedurally different enough that the outcome will not dictate how Abu-Jamal's case should be decided.
But Deputy District Attorney Ronald Eisenberg, who attended the oral arguments, said he anticipates that the justices will reach the Mills issue and will find fault in the way the 6th U.S. Circuit Court of Appeals applied it in Spisak's case.
While most of the federal circuits have declined to extend Mills to cases in which there was a risk of juror confusion, Eisenberg said, the 6th Circuit did so in Spisak's case and the 3rd Circuit committed the same error in Abu-Jamal's case.
Follow these links below for updated information.
Link to the Democracy Now Story!
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The Supreme Court has denied an appeal from the journalist and former Black Panther Mumia Abu-Jamal. On Monday, the court rejected without comment Abu-Jamal’s bid to overturn his conviction for the 1981 killing of a white police officer20following a controversial trial before a predominantly white jury. Abu-Jamal contends the case was marred with racial bias, including the deliberate exclusion of blacks from the jury. “It shows you that precedent means nothing, that the law is politics by other means,” Abu-Jamal said in response to the ruling. [includes rush transcript]
Guests:
Vincent Southerland, Assistant counsel at the NAACP Legal Defense Fund and a member of Mumia Abu-Jamal’s legal team.
Christina Swarns, Counsel for Mumia Abu-Jamal at the NAACP Legal Defense Fund.
Mumia Abu-Jamal, speaking from death row. Courtesy of Noelle Hanrahan of the Prison Radio Project.
AMY GOODMAN: The Supreme Court has denied an appeal from the journalist and former Black Panther Mumia Abu-Jamal. On Monday, the court rejected without comment Abu-Jamal’s bid to overturn his conviction for the 1981 killing of a white police officer following a controversial trial before a predominantly white jury. Abu-Jamal contends the case was marred with racial bias, including the deliberate exclusion of blacks from the jury.
The ruling leaves in place a federal appeals court ruling upholding Abu-Jamal’s conviction. Prosecutors, meanwhile, are now trying to appeal a separate ruling for a new sentencing hearing because of flawed jury instructions. If re-sentenced, Abu-Jamal will face either death or life in prison without parole.
For more on the case, I’m joined now by Vincent Southerland. He is assistant counsel at the NAACP Legal Defense Fund and a
member of Mumia Abu-Jamal’s legal team. He joins me from the Democracy Now! studio in New York. And on the phone in New York is Christina Swarns. She is counsel for Mumia Abu-Jamal at the NAACP Legal Defense Fund. She spoke to Abu-Jamal after Monday’s ruling.
Let’s begin right now by talking about exactly what this ruling means, Vincent Southerland.
VINCENT SOUTHERLAND: Well, good morning, Amy. Thank you for having me.
What this ruling really means is that one of Mr. Abu-Jamal’s strongest —what we thought was one of his strongest claims for relief has completely been denied by the Supreme Court. Essentially, as you said, he was contesting the discriminatory selection of jurors during his 1981 trial—1982 trial, excuse me. And there was—despite the fact there was overwhelming evidence that the district attorney’s office of Philadelphia engaged in discriminatory selection practices with respect to the jurors on Mr. Mumia Abu-Jamal’s case, the Supreme Court decided that they didn’t want to hear the case, his appeal. Essentially, Mr. Abu-Jamal’s trial prosecutor used eleven out of his fifteen peremptory challenges, that is, challenges to strike jurors, and struck jurors of African American descent. And ultimately, he was tried before a jury of ten whites and two African American jurors.
AMY GOODMAN: Christina Swarns, you spoke to Mumia Abu-Jamal after the White House—after the Supreme Court ruling on Monday. What did he say?
CHRISTINA SWA
RNS: He was obviously both surprised and disappointed by the outcome of the case. You know, he recognizes that the outcome of his case impacts not only himself, but obviously a lot of other death sentence prisoners and really, you know, not just death-sentenced, a lot of other convicted people in the Third Circuit and in Pennsylvania, Delaware and New Jersey and throughout the country. So he realizes that the unfortunate decision of the Third Circuit will not be reversed, and not only will he not be able to explore, you know, the issues that Vincent talked about in terms of the discrimination in his case, it’s going to prevent a lot of other people from getting to look at evidence of racial discrimination in their cases. And I think on both fronts, he’s very disappointed.
AMY GOODMAN: Vincent Southerland, can you explain what the Batson case is?
VINCENT SOUTHERLAND: Sure. Batson was essentially a case that was decided by the Supreme Court in 1986, and it essentially lowered the standard, in one respect, for counsel to even ask the question as to whether or not discrimination in jury selection had taken place. Essentially, when defense counsel or a prosecutor, in some cases, sees a pattern of discrimination, a pattern of strikes during the course of jury selection, that attorney has a right to then question the court, to ask whether or not the other counsel is using those strikes in a discriminatory manner.
And at that point, when the court makes a determination that there has20been some type of a pattern of discrimination, some type of discrimination during the course of jury selection, the onus is then on the prosecutor to or the other counsel to make—to provide some explanation as to why they’re striking jurors and make that explanation—you know, provide an explanation that does not have to do with race. They cannot be striking jurors based on race. And, you know, that decision is essentially the cornerstone of the protections that defendants have in order to prevent discriminatory jury selection and at least challenge discrimination in jury selection during trial.
AMY GOODMAN: I wanted to turn to Mumia Abu-Jamal in his own words now. On Monday, he spoke to Noelle Hanrahan of the Prison Radio Project shortly after the Supreme Court decision.
MUMIA ABU-JAMAL: Well, all I know is, you know, what Christina told me, so there’s nothing. There’s nothing to read. There’s no order, other than my name is on a list of cert denied.
NOELLE HANRAHAN: That’s right.
MUMIA ABU-JAMAL: So we don’t know anything. And, you know, if it is the Batson issue, then it just shows you that precedent means nothing, that the law is politics by other means, and that the Constitution means nothing, that a fair jury means nothing, you know.
NOELLE HANRAHAN: You said, when I just first talked to you, something about it’s another day, and how many days?
MUMIA ABU-JAMAL: Another day and three decades.
NOELLE HANRAHAN: When did you stop
being surprised?
MUMIA ABU-JAMAL: When I was at pretrial hearing before Judge Sabo, and he denied the motion. I knew then that he wasn’t working with the Constitution. It did surprise me, and it really shocked me, because, you know, I had read the cases. I knew what the law was. I knew what the law books said the law was. I learned then that they’re not going by that kind of law. And apparently they’re not going by that kind of law now. You know, if you read Batson and you read my case, then it’s almost as if you’re in two different universes. And, in fact, you are. You are.
NOELLE HANRAHAN: Are there different rules for what type of people?
MUMIA ABU-JAMAL: Well, there’s always been different rules for black people. You know. If you read Batson, what will surprise people who have never done so, it has nothing to do with the accused, the defendant, the person on trial. Batson, in its own terms, says it protects the rights of those people who are allegedly American citizens, who are denied the right to serve as jurors. That’s what it says. That’s what it says. But, in fact, you know, how does it do that, when it allows people to be removed, after Batson became law, for spurious reasons? You know, Batson can be bested and beaten by exactly the way the DA’s office said it could be beaten: by lying and getting up and saying, "Well, no, we didn’t have any racist reasons.”
AMY GOODMAN: Mumia Abu-Jamal, speaking
from death row to Noelle Hanrahan of Prison Radio, based in San Francisco. Christina Swarns, at this point, what happens? What about re-sentencing? What are the next steps in this case? There’s still another appeal being heard, is that right?
CHRISTINA SWARNS: Yes. Well, two things. Robert Bryan is actually lead counsel for Mumia Abu-Jamal. Vincent and I work for the Legal Defense Fund, and we served as friends of the court supporting their case. Mr. Bryan has informed us, and, of course, we fully agree, that he should and will seek rehearing in the Supreme Court, asking them to reconsider their decision rejecting Mr. Abu-Jamal’s Batson claim. If that is denied—and I will say that those are very rarely granted—then we will have to wait for the Supreme Court to rule on the state’s appeal of the decision throwing out Mr. Abu-Jamal’s death sentence.
If the Supreme Court leaves in place the decision that threw out Mr. Abu-Jamal’s death sentence, then it will—the case will return to Philadelphia trial court, and the district attorney, as you mentioned before, has the right, you know, to impanel a new jury and again ask them to decide as between life and death.
Additionally, I know that Mr. Bryan and all the other lawyers involved in this case will obviously look it over and see whether there are any other avenues for successes, meaning secondary or third round of appeals in this case, and we’ll just basically regroup and see what can be20done.
AMY GOODMAN: Well, I thank you both for being with us, Christina Swarns and Vincent Southerland. They’re both with the NAACP Legal Defense Fund, responding to the latest Supreme Court decision around Mumia Abu-Jamal. Actually, he has a new book out. It’s called Jailhouse Lawyers: Prisoners Defending Prisoners v. the USA. And, of course, we’ll continue to follow this case.
Legal Update
Date: July 22, 2008 From: Robert R. Bryan, lead counsel Subject: Federal ruling regarding Mumia Abu-Jamal, death row, Pennsylvania [please circulate]
U.S. Court of Appeals for the Third Circuit, Philadelphia Today our Petition for Rehearing and Rehearing En Banc, submitted on behalf of my client, Mumia Abu-Jamal, was denied by the U.S. Court of Appeals for the Third Circuit. Simply put, we did not receive the needed majority vote from the nine sitting judges; at least five votes for a rehearing were necessary. However, Justice Thomas L. Ambro continues to urge the granting of relief on the issue of racism in jury selection. That position, as detailed in his brilliant dissenting opinion of March 27, 2008, will continue to serve as a beacon of hope as we press on for a new trial and Mumia's freedom. Judge Ambro said that the "core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of . . . race. . . . I respectfully dissent." A copy of today's decision is attached.
Reaction Mumia and I had a legal conference this afternoon. He, as I, was stunned by the federal court's refusal to grant relief since it flies in the face of established legal precedent in both the U.S. Court of Appeals and the U.S. Supreme Court. I am furious because racism continues to raise its ugly head in this country, and should have no place in our legal system. The indisputable facts are that the prosecutor engaged in racism in selecting the jury in this case, and that bigotry lingers today in Philadelphia. It would be naive not to realize that this case continues to reek of politics and injustice.
U.S. Supreme Court We will be seeking relief in the Supreme Court. The Petition for Writ of Certiorari will be filed by October 20, 2008, unless there is an extension. The racism issue will be presented, along with the fact that the prosecutor made misrepresentations to the jury in order to obtain a murder conviction against Mumia.
Conclusion My goal remains a complete reversal of the conviction, even though the federal court has already granted a new jury trial on the question of the death penalty. We will not rest until Mumia is free.
Yours very truly,
Robert R. Bryan Lead counsel for Mumia Abu-Jamal
follows is an overview written before the latest setback
Third Circuit Court Rejects Abu-Jamal Appeal: The "Mumia Exception" by Dave Lindorff, OpEdNews.com
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 claim—that 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 bench—chastised 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 selection—something known as a Batson violation, after the Supreme Court’s 1986 decision in Batson v Kentucky—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.)
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 selection—signaling that our Circuit does not have a federal contemporaneous objection rule—and 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 information—from which one can compute the exclusion rate—is 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.”
This flip-flopping on allocution, on acceptable language for prosecutors 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.”
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 that—something McGill, interviewed shortly after Judge Yohn’s initial ruling, said was being considered—in 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 www.thiscantbehappening.net
Prison Radio / Redwood Justice Fund
P.O. Box 411074 • San Francisco, CA 94141
www.prisonradio.org
From The Desk of Noelle Hanrahan
February 15, 2008
Dear Friend,
I just got off the phone with Mumia. He said, “Tell everyone they are in my thoughts, and send them all my love. Oh, and tell them to write. I love hearing from everyone. We need to revive letter writing before it becomes a lost art.”
Please take a moment to pick up a pen and jot a personal note to Mumia. Tell him what you are working on. Bring your world of activism to him. Make that connection. He is a journalist and is fascinated by the daily struggles that we undertake for liberation.
Every word that makes it through those prison walls helps dissolve the distance between us. Each act of connection is one step closer to bringing Mumia home. His address is: Mumia Abu-Jamal, AM 8335, SCI Greene 175 Progress Dr., Waynesburg, PA 15370.
“It is the truth which will triumph after all. Al final la verdad vencerá.”
—Lori Berenson.
Stay alert! Mumia’s life hangs in the balance. A ruling from the 3rd Circuit U.S. Court of Appeals is expected any day. Mumia could receive a new trial; he could get an evidentiary hearing or a new sentencing hearing; or his death sentence could be reinstated. Put “mumia” in the Google news alerts for breaking news. See www.freemumia.com for updates.
The Today Show Takes on Mumia’s Case
On Dec. 6, 2007, Matt Lauer & Company did an amazing job. Yes, it was an interview with Maureen Faulkner (the officer’s widow) and Michael Smerconish (a right-wing talk show host in Philadelphia), who co-wrote “Murdered by Mumia: A Life Sentence of Pain, Loss and Injustice.” But the report was serious journalism. Lauer’s questions for Faulkner and Smerconish were probing. He actually asked Faulkner: “Why do you think so many people believe he needs a new trial?”
You have to see the clip! I nearly fell out of my chair. After years of being nailed by the mainstream media the Today Show’s coverage of Mumia was balanced and fair! New evidence was featured that exposes serious flaws in the Philadelphia District Attorney’s case against Mumia Abu-Jamal.
It was the first mainstream broadcast of the explosive crime scene photos taken moments after the December 9, 1981 shooting at 13th and Locust. The photos, by independent photographer Pedro Polakoff, were rediscovered by German researcher Dr. Michael Schiffman of the University of Heidelberg in Germany. These photos prove that the police conspired to falsify evidence, altering the crime scene to frame Mumia. Thank you to Hans Bennet of Journalists for Mumia Abu-Jamal. He was the driving force in this campaign. See more at www.abu-jamal-news.com. Also for a thorough dissection of the Faulkner book see “The Big Lie” www.partisandefense.com.
Bishop Desmond Tutu Visits Mumia!
South Africa’s Bishop Tutu visited Abu-Jamal on death row at SCI Greene in October. When Bishop Tutu arrived, he was told he could not visit. Mumia explained: “He was treated like any Black man visiting, with very little respect. That is until a black guard happened by and recognized him, and then the guards found the ‘right paperwork.’” Bishop Tutu remained dignified while experiencing the humiliation that millions of prisoners and their families endure. Bishop Tutu was uncomfortable with Mumia’s conditions: his hands were shackled, and he was kept behind plexiglass for the non-contact visit. Mumia’s humanity did shine through, though, and Bishop Tutu, inspired by his visit, made this statement: “I oppose the death penalty on principle in every case and I support the pleas for a retrial for Mumia Abu-Jamal.”
“In Prison My Whole Life” Has Its U.S. Premiere at Sundance!
Robert Redford’s influential film festival hosted the U.S. premiere for the acclaimed feature-length documentary, “In Prison My Whole Life.” Produced by Livia Giuggioli and Colin Firth, it is a film that tackles the Abu-Jamal case through the story of English expatriate William Francome, who was born on the day of Mumia’s arrest, 12/9/81. The world premiere was in October in London and Rome.
Amnesty International has endorsed the film. Prison Radio is reserving judgment, as we have not yet seen it. But we have had a huge battle with the producers. When we became aware that the filmmakers were attempting to alter Mumia’s photo and literally put a gun into his hand, we demanded that they not associate his image with blood, guns, or violence. It cost Prison Radio literally tens of thousands of dollars in staff time and legal fees to try to keep them from degrading Mumia’s image and voice. At this point they have stolen, i.e., refused to pay a license fee for, all the audio and many of the photos you see of Mumia, while refusing, in writing, to agree not to degrade his photo. Remember—if the film is accurate and good, it is only because Prison Radio fought to make sure it would be.
Help us Bring Mumia Home!
If you think it is important to hear Mumia’s voice, join us. We can only do this work with your help. Please consider a gift of $50, $100, $350, $1,000, $35.
Solidarity is key!
Your support helps us reach over 200 radio stations every week. Join us, and keep the voices of Mumia Abu-Jamal, Dortell Williams, Siddique Abdullah Hasan, Herman Wallace, Albert Woodfox, and Lori Berenson alive and vibrant.
Every donation matters, and we honor those of you who act. A wise man once said, “If you want to know what is in someone’s heart look in their check book.”
Continue this journey with us.
Toward Justice & Freedom,
Noelle Hanrahan
Prison Radio
© Jennifer Beach/Prison Radio
“The voice of Black political journalism in the struggle for the liberation of African-American people has always proved to be decisive throughout Black history. From David Walker’s appeal in 1829, to the political journalism of Frederick Douglass, to the Black Panther newspaper. When you listen to Mumia you hear the echoes of David Walker, Frederick Douglass, W.E.B. DuBois, Paul Robeson, and the sisters and brothers who kept the faith with struggle, who kept the faith with resistance. And that is part of the reason why Mumia is so dangerous to the state.”
—Manning Marable
www.prisonradio.org
Stunning Poster -The Time is Now for Release!
Backside (Extensive Resource List)
Links:
(in German, but has some valuable documents in English)
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