“Law is politics, by other means.” David Kairys, Temple Law Professor
An appeal will be filed in the Pennsylvania Supreme Court by his attorneys Judith Ritter (Widener Law Professor), Sam Spital (Legal Defense Fund) and Bret Grote (Abolitionist Law Center).
The three judge Superior Court panel; President Judge Jack Panella (Democrat), Victor Stabile (Republican), President Judge Emeritus John Bender a (Republican); issued a 23 pg ruling upholding Philadelphia Common Pleas Judge Lucretia Clemon’s refusal to grant an evidentiary hearing.
The court affirmed Clemons’ opinion that the court lacked jurisdiction to consider the claims before it due to procedural bars. The two issues were constitutional violations in jury selection (a Batson claim) and suppression of evidence favorable to the accused (a Brady claim). To quote the court “the [suppressed] letter was not impeachment material or exculpatory” and the voir dire notes “do not show improper motivations to strike jurors.”
Let’s unpack what that means.
What is the actual evidence the Superior Court is dismissing? Here is a list of the new evidence found buried in storage closet No. 17 in the basement of the DA’s office, and turned over in 2021.
- Handwritten voir dire notes from Joseph McGill (ADA) detailing the impermissible strike pattern targeting eligible black jurors over white jurors.
- Alleged “eye witness” Robert Chobert’s handwritten note to Assistant District Attorney (ADA) Joseph McGill after the trial demanding “his money” that was promised to him.
- Detailed memos tracking of “eyewitness” Cynthia White’s cases and notices for Joseph McGill (ADA) to be consulted when they are called.
The Superior court called this document “not exculpatory.” In lay terms that means not favorable to the defendant. They further stated that while the District Attorney’s office should have turned over this evidence, the fact that they buried it for 34 years did not harm Mumia.
The problem with that argument is that Chobert was demanding money post-trial from the prosecutor: it is a smoking gun. The PCRA court and the Superior court had an obligation to find out why Chobert was asking for money. What was required was a hearing to ask Chobert under oath. To quote the Superior Court panel “the only evidence Petitioner put forward is Chobert’s letter, in which the witness asked the prosecutor about money he believed he was owed. It is entirely speculative to assume, as Petitioner does, that the letter proves McGill promised Chobert money in exchange for his testimony.”
Further, the court itself speculates that the money owed could have been the $5 a day Chobert was allowed in witness fees. They also cannot assume that McGill was potentially telling the truth in his affidavit when he says Chobert wanted to be paid for missing work.
The DA buried this letter for 34 years for a reason: it is damning and damaging to their key “eyewitness,” Robert Chobert.
The court had an obligation to instruct the lower court to conduct an evidentiary hearing and get Chobert and McGill up on the stand under oath. What was needed here, and what the PA Supreme Court should rule for on appeal, is that there needs to be a credibility determination, an evaluation of Chobert’s and McGill’s contradictory statements, answers in open court, and vigorous cross examination. That is what the law should require.
Judge Clemmons and now the Superior Court have deliberately avoided the elephant in the room: the lack of credibility of Assistant District Attorney Joseph McGill and the questionable “eyewitness” Robert Chobert.
McGill’s affidavit submitted to the court in Nov. 2019 itself raises key contradictions that would have been systematically exposed by Mumia’s attorneys if he testified in an evidentiary hearing. Robert Chobert, the main “eyewitness” also would have been subjected to rigorous questioning.
Racial Bias in Jury Selection: Batson Issues
A few points to understand about the “Batson” issues, firstly, the racial bias in jury selection. The court acknowledges that McGill’s voir dire notes taken when selecting the jury “should have been disclosed earlier.” Yet, they go on to state that they do not show any evidence of improper motivation. Certainly, granting an evidentiary hearing and getting McGill up on the stand could shed light on his motivations.
2ndly, the Superior Court misses the point of the skillful arguments in the brief put forth by Mumia’s attorneys (Spital, Ritter, and Grote). McGill’s notes specifically reveal how McGill dismissed black jurors who were similarly situated in favor of white jurors. The right to sit on a jury, the right to have a fair trial is compromised if people are removed because of their race. These handwritten notes by McGill were buried and kept from Mumia’s lawyers. By the superior courts own admission, they should have been turned over 37 years ago.
The U.S. Supreme Court’s ruling in Batson states that even if one juror was removed improperly it is a violation of the defendant’s constitutional rights and requires a new trial. Batson’s clear upholding of due process is a powerful precedent that Pennsylvania courts are using PCRA procedural bars to ignore. In foreclosing an evidentiary hearing to question McGill, the Superior Court relies on the PCRA statute that says a claim is waived if not brought up during a previous hearing. Specifically the lower court and the Superior Court stated that Mumia’s counsel had the opportunity in 1995, in front of Sabo, to call McGill to the stand and examine him, and did not exercise “due diligence” and when they failed to call him as a witness.
What Must Be Done
We must work strategically, consistently, and with the knowledge that it will get much more difficult as we get closer to freedom. We must demand Mumia’s freedom and to demand an end to death by incarceration (DBI). Some work is case specific, and some work is class specific. But it all must be done and there is room for new brilliant and robust initiatives.
Just this week, Abolitionist Law Center’s Executive Director Robert Saleem Holbrook, was at the White House demanding Biden exercise Executive Clemency for Leonard Peltier and others.
Take a moment to read Robert Saleem Holbrook’s poignant and timely op-ed in the Philadelphia Public Citizen 9-20-24 describing the White House briefing he and others delivered this week.
I will close this sobering message with the note that we continue.
We believe in Freedom. And we will not rest until all of our people are home.
When We Fight, We Win,
When We Survive, We Win
When We Love, We Win
