[Ppnews] Like it or not, Mumia may get a new trial

Thu May 24 11:19:29 EDT 2007

Verdict Nullification?

http://www.citypaper.net/articles/2007/05/24/verdict-nullification?userCreated=&commentPosted=0#posted

Like it or not, Mumia may get a new trial.

by Dave Lindorff

Published: May 23, 2007

When the name Mumia Abu-Jamal comes up in local 
conversation, the debate immediately begins over 
whether he is guilty of a murder that has kept 
him on Pennsylvania's death row for 25 years. 
Rarely does it address the underlying question of 
whether he had a fair trial or appeal process.

Now, three 3rd U.S. Circuit Court of Appeals 
judges are mulling key elements that pertain to 
that very crucial question. They are also 
considering whether to uphold a 2001 decision by 
Federal District Judge William Yohn that 
overturned Abu-Jamal's death sentence for the 
Dec. 9, 1981, murder of Philadelphia police officer Daniel Faulkner.

The key claim argued before the three-judge panel 
during a two-and-a-half-hour hearing last 
Thursday (May 17) in the packed Ceremonial 
Courtroom of the federal courthouse was whether 
the prosecutor at the 1982 trial, Joseph McGill, 
improperly removed potential qualified jurors because of race.

In 1995, the District Attorney's office admitted 
that McGill used 10 of 15 peremptory challenges  
requests to strike jurors from consideration, for 
which no reason has to be given  to remove black 
jurors who otherwise met the requirements to be 
on the panel, including a willingness to vote for 
death. This means that, of 14 possible qualified 
African-American jurors, McGill eliminated 10. 
That compares to only five white jurors that he 
peremptorily dismissed out of a possible 25. And 
it left Abu-Jamal's jury with nine whites and 
three blacks in a city that was 44 percent black 
(the gap widened when a black juror was removed 
by the judge and replaced by a white alternate, 
with the enthusiastic endorsement of McGill).

On its face, that would seem to be prima facie 
evidence of racial discrimination that would 
normally warrant a hearing, but there is more: 
Over the course of six murder trials that he 
tried, McGill used his peremptory challenges to 
remove 74 percent of qualified black jurors, 
compared to only 25 percent of white jurors. 
Moreover, McGill's methods were part of a pattern 
prevailing during the two terms of McGill's boss, 
then D.A. Ed Rendell. Under Rendell, prosecutors 
barred 58 percent of all blacks via peremptory 
challenges, compared to just 22 percent of whites.

Abu-Jamal's lead attorney, Robert R. Bryan, cited 
these statistics and noted that during jury 
questioning, McGill asked different questions of 
blacks than whites, and used different standards in deciding whom to remove.

Rather than contest the statistics and other 
evidence of racial discrimination in jury 
selection, Hugh Burns  the head of the DA's 
appeals unit, he argued the state's case against 
Abu-Jamal  claimed that Abu-Jamal had no right 
to raise the issue in federal court. Burns 
alleged that Abu-Jamal had missed his chance to 
do so in 1995, during his Post-Conviction Relief 
Act (PCRA) hearing, or subsequent appeal to the state supreme court.

The problem with the DA's argument? Much evidence 
of race-based jury selection did not come to 
light until 1998, a year after Abu-Jamal's final 
appeal had been decided. Since Abu-Jamal couldn't 
have had that evidence until his state appeal was 
over, it was first presented in his federal habeas appeal in 1999.

A second line of appeal by Abu-Jamal, briefly 
discussed at last week's hearing, was a statement 
made by McGill during his summation on the last 
day of the trial; he told jurors that if they had 
doubts about the defendant's guilt, they needn't 
worry, because, "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." (Juries are 
supposed to reach a guilty verdict only if the 
case was proven "beyond a reasonable doubt.") 
This was no slip by McGill, who used identical 
language in another case, which is why the state 
Supreme Court, in 1986, overturned that defendant's death sentence.

Now, Abu-Jamal is asking the appeals court to 
overturn his conviction on the same grounds. He 
seemed to have won some support from at least one judge, Robert Cowen.

When prosecutor Burns argued that McGill's 
statement could justify only overturning a 
sentence, not conviction, Cowen asked, "But isn't 
what the prosecutor said a denial of [the defendant's] right to a fair trial?"

There were many problems with Abu-Jamal's trial, 
his lawyers and supporters maintain. He was 
provided with almost no funds for ballistics or 
forensic experts. Records of interrogations show 
that prosecution witnesses were pressured by 
police over the course of six months to alter 
their testimony to comport with the prosecution's 
crime scenario. For example, white taxi driver 
Robert Chobert, who originally told police the 
shooter had fled the scene, later graphically 
described seeing Abu-Jamal do the shooting, 
execution-style. Chobert was uniquely vulnerable 
to pressure from prosecutors  he had been 
driving on a license that had been suspended for 
a DWI conviction, and was also on five-years' 
probation for felony arson in the fire-bombing of 
an elementary school for money. Neither this 
information nor the fact that he had asked the DA 
to help him "fix" his license was allowed to go to the jury.

The point is that when people develop opinions 
about this controversial case, particularly in 
Philadelphia, they tend to base them on the fact 
of Abu-Jamal's conviction, and then, working on 
the assumption that the jury accepted the facts 
as presented at trial to be true, go on to 
proclaim him guilty of Faulkner's murder.

What if the conviction itself, however, was the 
result of a pre-selection of jurors inclined to 
believe the prosecutor, think Judge Albert Sabo 
was fair and believe police officers and 
prosecution witnesses? And if, moreover, those 
jurors were allowed to be assured by the 
prosecutor that the standard for conviction 
needn't be "proof beyond a reasonable doubt," 
then what certainty is there about any of the 
"facts" presented at the trial, or about the verdict?

This is why the appeal now being considered by 
the three judges of the 3rd Circuit  Chief Judge 
Anthony Scirica, Judge Cowen and Judge Thomas 
Ambro  is critical. If justice and the hallowed 
constitutional right to a fair trial are to have 
any real meaning in the United States, it is 
essential that juries be chosen in a manner that 
is fair, not stacked, and it is essential that if 
the resulting jury convicts  especially in a 
capital case  it be on the basis of "proof beyond a reasonable doubt."

As the arguments presented at the 3rd Circuit 
hearing made clear, there are solid reasons to 
doubt that either of those things happened in 
Abu-Jamal's case. Philadelphians need to be 
prepared to accept that if at least two judges on 
the appeals court panel reach that conclusion, 
there will be no way to convincingly argue that 
Abu-Jamal "did it," until the evidence is presented fairly at a new trial.

(<mailto:editorial at citypaper.net>editorial at citypaper.net)

Dave Lindorff, a Philadelphia-area investigative 
journalist and columnist, is author of Killing 
Time: An Investigation into the Death Penalty 
Case of Mumia Abu-Jamal (Common Courage Press, 2004).

Freedom Archives
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415 863-9977

www.Freedomarchives.org  
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