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 “Killing Time“:
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 Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. His new book of CounterPunch columns titled “This Can’t be Happening!” is published by Common Courage Press. Information about both books and other work by Lindorff can be found at www.thiscantbehappening.net.
He can be reached at: firstname.lastname@example.org