Supreme Test

During a jailhouse interview in 1978 a Philadelphia radical awaiting trial for a policeman’s death advanced a salient observation about a fundamental flaw in America’s legal system.

The “System just make and break laws as it see fit!” noted this radical who for years had battled Philadelphia authorities arbitrarily bending and breaking laws to brutally assault his organization.

This observation by a member of Philadelphia’s MOVE organization would prove both prophetic and profound for the journalist conducting that jailhouse interview – Mumia Abu-Jamal.

Four years after that 1978 interview, Abu-Jamal stood trial for murdering a Philadelphia policeman. That trial produced a conviction so mired in controversy that today millions around the globe support Abu-Jamal as the victim of a miscarriage of justice.

Abu-Jamal cites that radical’s observation in his new book “Jailhouse Lawyers: Prisoners Defending Prisoners vs. the U.S.A.” (City Lights Books 2009).

This is the sixth book written by Abu-Jamal during his twenty-five-plus years on Pennsylvania’s death row. This book examines inmates who’ve learned law through self-study to challenge criminal convictions and conditions inside prisons.

Abu-Jamal, in Chapter 2 of his new book, provides his assessment of American law terming it an “instrument of the powerful, mortality be damned. For the weak, the powerless, the oppressed, the law is more often a hindrance than a help.”

That radical’s observation about arbitrary operation in the justice system accurately describes the Abu-Jamal case where courts – state and federal – have repeatedly altered and/or abrogated established law to block Abu-Jamal receiving relief granted to other inmates raising the same legal challenges.

The latest example of this alter-law-to-undermine-Abu-Jamal dynamic drives his appeal currently pending before the US Supreme Court. This appeal attacks the 2008 ruling by a federal 3rd Circuit Appeals Court panel that created a new legal standard for persons challenging racist jury selection practices by prosecutors.

That newly created legal standard advanced by two 3rd Circuit judges to reject voluminous evidence documenting racist jury selection practices by the prosecutor during Abu-Jamal’s 1982 trial erects courtroom procedures far in excess of procedures required by existing US Supreme Court and 3rd Circuit rulings.

The third member of that three-judge 3rd Circuit panel issued a 41-page dissent that repeatedly upbraided his panel colleagues for radically changing the established jury discrimination standards applied by their Circuit and the US Supreme Court.

“Why we pick this case to depart from [3rd Circuit precedent] I do not know,” Judge Thomas Ambro noted in his 2008 dissent.

Incredibly, that panel’s ruling – later backed by the full 3rd Circuit – faults Abu-Jamal’s 1982 trial attorney for not strictly following procedures the US Supreme Court didn’t adopt until 1986…four years after Abu-Jamal’s trial.

An internet based petition campaign requesting the US Supreme Court to overturn the 3rd Circuit ruling and grant Abu-Jamal a court hearing on the jury selection discrimination issue amassed over 1,200 signatures in just a few days.

This petition campaign initiated by a coalition of anti-death penalty groups in Germany has gained signatures from persons in Germany, Austria, Brazil and Turkey despite it not being formally launched internationally. So far, petition signers include noted German actors, actresses, activists, academics, civic leaders and one member of the German parliament.

The prosecutor during Abu-Jamal’s 1982 trial used 10 of 15 preemptory challenges to purge potential black jurors – more than twice the exclusion rate expected with race-neutral procedures.

Abu-Jamal’s richly detailed appeal to the US Supreme Court, prepared by lead defense lawyer Robert R. Bryan, includes an examination of the “culture of discrimination” operative among Philadelphia prosecutors.

Bryan’s appeal highlights 11 separate rulings where federal and Pa state courts specifically faulted Philadelphia prosecutors for engaging in intentional discrimination during jury selection. Six of those 11 rulings cited in Bryan’s appeal came from the 3rd Circuit.

Further, Bryan’s appeal, referencing dozens of court rulings nationwide, cites a US Supreme Court ruling where one Justice utilized a scholarly statistical study documenting Philadelphia prosecutors purging potential black jurors at twice the rate of whites during death penalty trials between 1981 and 1997.

Interestingly, just days before that 2008 3rd Circuit ruling, the US Supreme Court granted a Louisiana death row inmate a new hearing after finding race tainted jury selection practices during his trial.

This Supreme Court ruling applied standards less stringent than those the 3rd Circuit created in the Abu-Jamal ruling.

The author of that Supreme Court ruling, Justice Samuel Alito, formerly served on the 3rd Circuit where he participated in rulings granting relief to inmates victimized by prosecutorial jury selection improprieties less onerous than those in the Abu-Jamal case.

The NAACP Legal Defense and Educational Fund’s legal brief filed on behalf of Abu-Jamal’s US Supreme Court appeal criticizes the 3rd Circuit panel’s “departure from controlling precedent” – faulting that ruling for improperly increasing the evidentiary burden on defendants raising jury discrimination claims.

The NAACP Defense Fund’s brief warns that the 3rd Circuit’s ruling “threatens to dramatically reduce the pool of cases eligible for judicial review…” because it “directly contradicts” repeated US Supreme Court rulings.

Philadelphia prosecutors are asking the US Supreme Court to reinstate Abu-Jamal’s death sentence and reject his request for relief regarding jury selection discrimination.

That 2008 3rd Circuit ruling upheld a federal District Court judge’s elimination of Abu-Jamal’s death sentence after finding flaws in forms used by the jury that condemned him to death.

The push by Philadelphia prosecutors to execute Abu-Jamal comes at a time when states around the nation are backing away from the death penalty.

This week, New Mexico became the 15th state to repeal the death penalty. NM Governor Bill Richardson, when signing the repeal legislation, noted the exonerations of four death row inmates in that state.

Six of the 130 death row exonerations nationwide come from Pennsylvania.

The judge presiding at Abu-Jamal’s 1982 trial, Albert Sabo, has the dubious judicial distinction of handling the largest number of death penalty convictions in America. Courts have overturned two-thirds of those capital convictions in Sabo’s court citing faults by prosecutors, defense attorneys and Sabo himself.

Philadelphia’s District Attorneys Office is currently resisting actions by Philadelphia’s Mayor to sharply reduce spending by all city government departments due to a billion dollar budget deficit.

Philadelphia prosecutors have spent hundreds of thousands of dollars battling Abu-Jamal’s appeals in state and federal court.

Critics of Philadelphia’s DAs Office constantly cite fiscally wasteful procedures like relentlessly resisting legal relief to inmates granted by courts upon findings of faults by police and prosecutors.

Philadelphia District Attorney “Lynne Abraham is costing the City a ‘ton’ fighting police corruption cases,” said Robert “Sugar Bear” Lark, an inmate still sitting on Pa’s death row because Philadelphia prosecutors are battling a 2007 federal court ruling overturning his conviction.

Linn Washington Jr. is an Associate Professor of Journalism at Temple University in Philadelphia and a weekly columnist for The Philadelphia Tribune – America’s oldest black owned newspaper.



Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, (AK Press). He lives in Philadelphia.