[News] A Win for Mumia Abu-Jamal

Anti-Imperialist News News at freedomarchives.org
Wed Dec 7 13:44:39 EST 2005

December 7, 2005

A Tainted Trial?


A Stunning Win for Mumia Abu-Jamal


In a startling new development, the Third Circuit Court of Appeals in 
Philadelphia has agreed to hear arguments on three claims by 
Pennsylvania death-row prisoner Mumia Abu-Jamal that his 1982 trial 
and state appeal were tainted by constitutional violations.

Any one of those three claims, if upheld by the three-judge panel, 
could lead to a new trial for one of America's most famous and 
long-standing death row prisoners, a Philadelphia-based journalist 
and former Black Panther activist who was convicted of the 1981 
shooting murder of a white Philadelphia police officer.

The decision came as a surprise because the appellate court was only 
required to consider an appeal from the defense on a single 
guilt-phase issue-the claim that the prosecution had illegally 
removed qualified jurors from the case on the basis of race. That 
claim, while rejected in 2001 by Federal District Court Judge William 
Yohn, had been certified by the judge for appeal to the Third 
Circuit. Appellate courts do not have to even accept arguments from 
defense attorneys on claims that have not been certified for appeal 
by a lower court, so the fact that the judges agreed to accept the 
other two claims is a major victory for the defense.

The two additional claims are that:

1. The prosecutor, Joe McGill, improperly sought to weaken any sense 
of Responsibility and accountability among jurors considering the 
case, and undermined the constitutional requirement of "beyond a 
reasonable doubt," when he told them in his final summation that they 
need not worry overmuch about voting for conviction since Abu-Jamal 
would have "appeal after appeal," and

2. The judge in the case, the late Albert Sabo, who also sat at the 
1995 Post-Conviction Relief Act hearing, where determinations of 
fact, and crucial new evidence, were presented (or where the defense 
attempted, unsuccessfully to present it), was biased against the defense.

Abu-Jamal's claim of racial bias in jury selection is well 
documented. In his habeas appeal to the Federal District Court, his 
then attorneys, Leonard Weinglass and Daniel Williams, submitted four 
academic studies of jury selection practices by both the Philadelphia 
district attorney's office and of assistant DA McGill, himself. Both 
demonstrated clearly that the DA's office under then DA Ed Rendell, 
and McGill in the murder trials he prosecuted, rejected roughly three 
out of four potential black jurors who had already agreed that they 
could vote for capital punishment. This was a rate of peremptory 
rejection of qualified jurors three times higher than for potential 
white jurors, and is prima facie evidence of illegal racial bias. But 
Judge Yohn, in a serious judicial error of both fact and judgment, 
rejected all that evidence. As I exposed in my book on the case 
("Killing Time: An Investigation into the Death Penalty Case of Mumia 
Abu-Jamal," Common Courage Press, 2003), Yohn had confused the 
studies, and incorrectly assumed that they did not cover the time 
period of Jamal's trial, when in fact the studies even included 
Jamal's trial in their data sets. If the appellate court looks at 
that same evidence, the judges would be hard-pressed to find it fair 
in a city 44 percent black that the jury selection process in 
Abu-Jamal's trial resulted in his having just two black jurors ruling 
on his guilt and sentence.

Equally compelling is the claim that McGill's summation was 
unconstitutional. As I wrote in 

Right from the outset, McGill tried to convince the jury that, far 
from following the dictum "innocent until proven guilty," and making 
sure that they didn't convict an innocent man, they should be careful 
not to free a suspect who might well be guilty. Such an argument 
risked providing grounds for a successful overturning of the verdict. 
Appellate courts, including the Supreme Court of Pennsylvania (in a 
case, ironically, involving McGill saying the same words), had 
already held that telling a jury in a summation that their verdict 
would not be final was grounds for a mistrial. In defiance of that 
ruling, McGill probably calculated that the politics of this case-a 
black radical convicted of killing a white police officer-would make 
such a reversal unlikely. The calculation would prove to be correct, 
as we will see later. He went ahead and tried the tactic again, 
telling them, "If your decision of course were to acquit, to allow 
the Defendant to walk out, that is fine. There is nothing I can do 
and there is nothing that the judge or anyone could do that would 
affect that in any way. 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."

It could still be that my political analysis back then will prove 
correct, and that after hearing the defense's argument on the claim, 
the Third Circuit judges will reject it, but they if they did, they'd 
be going against earlier precedents where such statements have been 
made by prosecutors in the same circuit.

Finally on the judicial bias claim, there are so many examples of 
Sabo's bias, particularly at the PCRA hearing, where he was the one 
making the rulings regarding the validity of evidence, and the 
admission of new evidence, that the appellate judges' decision in 
favor of the defense claim of bias should be clear. Again, though, 
there is bound to be enormous political pressure brought on the court 
not to support the claim.

The Third Circuit has put Abu-Jamal's appeal on a "fast track," 
setting January 17 as the date for the defense to file its brief on 
the three claims. At that point, according to a lawyer for the Third 
Circuit court, the DA would have 30 days to respond and to file its 
own brief on the sentencing claim, after which the defense would have 
another 30 days to respond. The DA would have a final 14 days to file 
a final brief responding to the defense's last arguments to the 
court. At that point, the Appeals Court judges (who do not get 
identified publicly until 10 days before a hearing on the case, or a 
decision), would decide whether to hold a public hearing on the case, 
or simply decide based upon the submitted briefs.

There are a number of possible outcomes in the Third Circuit. The 
worst-case scenario for Abu-Jamal would be for the appellate court to 
reverse Judge Yohn's ruling on the death sentence, and to reject all 
the guilt-phase claims, which would put him back on track for execution.

On the guilt-phase claims, there are a number of things that could 
happen. If the jury selection race bias claim, called a Batson claim, 
is upheld, the court could order a new trial or could, as is more 
likely given Yohn's errors, send the case back to Judge Yohn for 
reconsideration based upon the evidence he had wrongly dismissed as 
irrelevant. Yohn could then order a new trial if he found evidence of 
race-based selection of jurors.

The claim of prosecutorial error in the summation to the jury could 
also lead to an order for a new trial, though again another option 
would be to send the matter back to Yohn's court for a rehearing.

Finally, the judicial bias claim, because it involved the PCRA 
hearing in 1995, not the 1982 trial itself, might not lead to a new 
trial but rather to a new or reopened state court PCRA hearing. There 
the defense would likely have the opportunity to bring back key trial 
witnesses as well as call new witnesses. That, in turn, would give 
the defense new avenues of appeal, in both state and federal courts, 
and possibly another chance for a new trial.

A clearly elated Robert Bryan, who took over Abu-Jamal's case as lead 
attorney over a year ago after several years of chaos and 
divisiveness in his defense following his firing of Weinglass and 
Williams, and his hiring of two death-penalty novices, Marlene Kamish 
and Elliott Grossman, said of Tuesday's Third Circuit decision to 
hear arguments on three claims, "Today we achieved a great victory in 
the campaign to win a new trial and the eventual freedom of Mumia."

Bryan said all three claims "are of enormous constitutional 
significance and go to the very essence of Mumia's right to a fair 
trial, due process of law, and equal protection of the law under the 
Fifth, Sixth and Fourteenth Amendments to the Constitution."

Asked for comment on the Third Circuit's decision to her three 
defense claims, a DA's office spokeswoman said, "We haven't heard 
about their decision yet."

Dave Lindorff is the author of 
Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. 
His new book of CounterPunch columns titled 
Can't be Happening!" is published by Common Courage Press. 
Information about both books and other work by Lindorff can be found 
at <http://www.thiscantbehappening.net/>www.thiscantbehappening.net.

He can be reached at: <mailto:dlindorff at yahoo.com>dlindorff at yahoo.com

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