The Mumia Exception
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 raceIn 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, 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.
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."
Current Philadelphia District Attorney Lynn Abraham continued that outrageous behavior, and gave a demonstration of the toxic politics that affects the justice system where this case is concerned, at a press conference following the announcement of the court’s decision, where she referred to Abu-Jamal repeatedly as an "assassin." In fact, at no point during the trial was there ever any claim by the prosecution, or any witness testimony, to even remotely suggest that Abu-Jamal had "targeted" Faulkner for death. Rather, the prosecution claimed that he had coincidentally been parked in a taxi he was driving, across the street from where his brother William had been stopped on a traffic violation by Faulkner, and had come across the street when his brother and the officer became involved in an altercation. To wrongly label the ensuing double shooting of Faulkner and Abu-Jamal an "assassination" as Abraham did, implying a political "hit" on Faulkner, was clearly aimed at inflaming public sentiment against Abu-Jamal. It was the same thing prosecutor McGill had attempted to do when, after the verdict, during his summation to the jury in the penalty phase of the trial back in ’82, he brought out an old news clipping of an interview with a 15-year-old Abu-Jamal in which the defendant had quoted Chinese revolutionary leader Mao Tse-tung as saying "power flows from the barrel of a gun." (The context of that full article made it clear the young Abu-Jamal was referring in that quote to the power of police, who had just "assassinated" Panther leader Fred Hampton in his bed in a raid on a house in Chicago.)
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!’"
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