[Ppnews] Mumia Case Reaches Its Climax

[Political Prisoner News]

http://www.counterpunch.org/lindorff05152007.html

May 15, 2007


The Final Showdown


Mumia Case Reaches Its Climax

By DAVE LINDORFF
and LINN WASHINGTON, Jr.

The case of death row prisoner Mumia Abu-Jamal, 
now a quarter of a century long, is heading to a 
climax this Thursday in a hearing before a 
three-judge panel of the Third Circuit Court of 
Appeals in Philadelphia. It is a hearing that 
could result in a new trial for the Philadelphia 
journalist and former Black Panther, or possibly 
in a new date with the executioner.

The wide range of possible outcomes of this 
hearing results from the fact that Abu-Jamal and 
the Philadelphia District Attorney have filed 
cross-appeals in the case. Abu-Jamal, convicted 
in 1982 for the 1981 slaying of white 
Philadelphia Police Officer Daniel Faulkner 
during an arrest of Abu-Jamal's younger brother 
William, is appealing his conviction. He is 
arguing that his jury was unconstitutionally 
purged of black jurors by the prosecutor, who 
used peremptory challenges to bar 10 or 11 black 
jurors from being seated, though all had said 
that they could vote for a death penalty. He is 
also appealing his conviction on the ground that 
the prosecutor, Joseph McGill, improperly 
diminished the jury's sense of responsibility for 
their verdict by telling them that a guilty 
verdict would "not be final" since there would be "appeal after appeal."

The DA's office, meanwhile, has appealed a 2001 
decision by Federal District Judge William Yohn 
overturning Abu-Jamal's death sentence-a ruling 
that if sustained, converts Abu-Jamal's penalty 
to life in prison without possibility of parole.

It is impossible to second-guess what the three 
judges sitting on this appeal will decide on any 
of the claims before them, but looking at their 
prior decisions, all three of the judges, who 
include Chief Judge Anthony Scirica and Judge 
Robert Cowen, both Reagan appointees, and Judge 
Thomas Ambro, a Clinton appointee have, during 
their time on the Third Circuit, overturned 
capital convictions based upon the same claim 
Abu-Jamal is making about race-based exclusion of jurors by the prosecution.

In his federal habeas appeal of his 
conviction-the so-called Batson claim regarding 
jury bias--Abu-Jamal's attorneys noted that in a 
city that is 44 percent African-American, his 
jury initially had only three black members (one 
was removed before the start of the trial, under 
questionable circumstances also possibly relating 
to judicial bias, leaving only two).

Abu-Jamal further presented evidence that his 
mostly white jury was the result of a pattern of 
racism in the city's justice system. Prosecutor 
McGill, who used 11 of his permitted 15 
peremptory challenges (challenges to bar jurors 
for which no reason has to be provided), to 
remove black jurors otherwise qualified to sit, 
had a record over the course of six capital cases 
between 1977 and 1986, of striking 74 percent of 
potential black jurors while striking only 25 
percent of white jurors. Furthermore, defense 
data show that over the same period, during which 
Ed Rendell was Philadelphia's district attorney, 
prosecutors working under his direction 
collectively used their peremptory challenges to 
eliminate black jurors 58 percent of the time, 
compared to only 22 percent of the time for white jurors.

If the appellate court decides that this damning 
statistical evidence shows or suggests a pattern 
of racism in jury selection, it would be bound to 
either order a new trial, or to remand the case 
back to Judge Yohn for a full hearing on the jury bias issue.

This would appear to offer Abu-Jamal his best 
chance for a new trial. If the judges vote the 
way each of them has voted in other similar cases, it could happen.

A second possibility for a new trial would be 
McGill's clearly inappropriate summation to the 
jury, in which he essentially told them to forget 
about "proof beyond a reasonable doubt," and 
which the judge, who still posthumously holds the 
national record for death penalty convictions 
(31), allowed to go unchallenged. Many a death 
sentence has been overturned for just such 
prosecutorial misconduct, but to date, neither 
the Third Circuit nor the US Supreme Court has 
overturned a conviction on the basis of such 
comments. Still, it remains a possible avenue for a reversal and a new trial.

A third avenue of federal appeal by Abu-Jamal 
argues that his initial appeal of his conviction, 
called a Post-Conviction Relief Act (PCRA) 
hearing, was constitutionally flawed because the 
judge-the same Albert Sabo who tried him 
originally-was biased in favor of the 
prosecution. Local newspaper editorials made that 
observation during the hearing. But more 
importantly, the PCRA hearing transcript shows 
that Sabo refused to grant any subpoenas to the 
defense to compel witness testimony, and that the 
judge repeatedly cut off lines of questioning of 
witnesses by defense attorneys when it appeared 
they were about to undermine the case. One 
witness who told of being pressured to lie at the 
trial, found herself arrested in the courtroom 
immediately following her testimony, while she 
was still on the witness stand. She was led off 
in handcuffs with the judge's blessing on a 
check-kiting charge, despite a pledge by her 
attorney to have her appear on the 
charge-normally a routine procedure. If the 
appellate panel rules in favor of this claim, 
Abu-Jamal would not get a new trial, but would 
get a reopened or a new PCRA, probably in federal 
instead of state court. At such a hearing, new 
evidence of innocence could be presented, and 
witnesses from the original trial and the earlier 
PCRA hearing could be further questioned and old testimony challenged.

Abu-Jamal, while still held in solitary 
confinement on Pennsylvania's death row at the 
insistence of Philadelphia District Attorney Lynn 
Abraham, is at this moment not facing the death 
penalty. Federal District Judge Yohn ruled in 
2001 that a poorly worded jury verdict form and 
equally poor instructions from Judge Sabo during 
the trial's penalty phase left jurors thinking, 
incorrectly, that they could consider no 
mitigating circumstances in deciding on his 
sentence unless they all agreed on it. In fact, 
under current law, if any one juror finds a 
mitigating circumstance, it has to be weighed in 
their collective decision, which must itself be 
unanimous for a death penalty. While it is 
unlikely that the Third Circuit judges will 
overturn Judge Yohn's revocation of Abu-Jamal's 
death sentence, which was well reasoned and based 
upon solid US Supreme Court precedent, the DA's 
office is making the effort, claiming that the 
precedent doesn't apply in his case.

In fact, over the course of Abu-Jamal's more than 
two-decade-long appeals process, the courts have 
shown a willingness to create special exceptions that apply only to Abu-Jamal.

One example of what might be called "The Mumia 
Rule" occurred in the Pennsylvania Supreme Court. 
The state's top judges in 1986 overturned a death 
sentence in 1986 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 state's top court, declaring that the 
prosecutor's language had "minimize[ed] the 
jury's sense of responsibility for a verdict of 
death," ordered a new trial. Three years later in 
1989, despite this precedent, the 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."

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 stating the right of allocution is of 
"ancient origin" and any failure to permit a 
defendant to plead for mercy required 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 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, acceptable 
language for prosecutors and other legal 
precedents led Amnesty International to conclude 
in its 2000 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.

Indeed, the Abu-Jamal case has always been as 
much about politics as it has been about law. 
During his sentencing hearing, Prosecutor McGill, 
over the strenuous objection of the defense, read 
from and questioned Abu-Jamal about a 12-year-old 
Philadelphia Inquirer article written about him 
when he had been just 15, in which he had quoted 
Mao Tse-tung as saying "power flows from the 
barrel of a gun." Although Abu-Jamal made it 
clear in the actual article, and during 
questioning by the prosecutor, that he was using 
that line to refer to the power of the police in 
Philadelphia in the early 1970s, the prosecutor 
told jurors that the child's words had referred to killing police.

Since the trial, the Fraternal Order of Police, 
the national police union, has openly lobbied 
hard for Abu-Jamal's execution, endorsing 
judicial candidates who favor the death penalty, 
while opposing those who oppose it, and holding 
annual demonstrations supporting his death, and 
even working successfully to prevent Abu-Jamal 
from having his commentaries from prison 
broadcast on Philadelphia radio stations. On the 
other side, a movement condemning Abu-Jamal's 
conviction and demanding his freedom or a new 
trial has spread around the globe.

Such political action has certainly played a role 
in the decisions made by Pennsylvania's 
politicized judges, all of whom are elected and 
must periodically return to face voters. But the 
prevailing view among attorneys is that such 
political pressures play a lesser role in the 
federal court system, where judges are generally 
better qualified and are appointed for life, and 
particularly at the appellate level, where most 
judges remain until they retire or die.

One indication that the appellate court may not 
be so vulnerable to political pressure came in 
1998, in a case brought by Abu-Jamal protesting 
the opening of his lawyer's correspondence with 
him in prison. Prison authorities had opened his 
lawyers' mail in 1995 and, learning of his 
defense strategy for an upcoming PCRA hearing, 
passed the news along to then Gov. Tom Ridge, who 
rushed through a death warrant. This meant 
Abu-Jamal was facing an execution date only weeks 
from the hearing-a situation Judge Sabo 
repeatedly used as an excuse for rushing the 
proceeding. The Third Circuit ruled that opening 
of inmates' legal mail was illegal. The Third 
Circuit also ruled in Abu-Jamal's favor in a case 
establishing his First Amendment right to write and publish from prison.

And so this case, which began one cold dark 
morning in December 1981, now moves to what could be the final confrontation.

However the three judge panel rules, history is 
likely to be made this Thursday in the legal 
showdown between Abu-Jamal's attorney Robert R. 
Bryan and Assistant District Attorney Hugh Burns, 
and by Third Circuit Judges Scirica, Ambro and Cowen.

Dave Lindorff is the author of 
<http://www.amazon.com/exec/obidos/ASIN/1567512283/counterpunchmaga>Killing 
Time: an Investigation into the Death Row Case of 
Mumia Abu-Jamal. His n book of CounterPunch 
columns titled 
"<http://www.amazon.com/exec/obidos/ASIN/1567512984/counterpunchmaga>This 
Can't be Happening!" is published by Common 
Courage Press. Lindorff's newest book is 
"<http://www.amazon.com/exec/obidos/ASIN/0312360169/counterpunchmaga>The 
Case for Impeachment",
co-authored by Barbara Olshansky. He can be 
reached at: <mailto:dlindorff at yahoo.com>dlindorff at yahoo.com

LINN WASHINGTON, Jr. is a columnist for the 
"Philadelphia Tribune" and is an associate 
professor of journalism at Temple University.




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