 |
Add to My Group
Abu-Jamal Case at Third Circuit, Prosecutor Admits He Had No "True Defense"
By Dave Lindorff (about the author) Page 1 of 2 page(s)
For OpEdNews: Dave Lindorff - Writer
The debates over Abu-Jamal's guilt or innocence have raged now for an astonishing quarter of a century, through the presidencies of Ronald Reagan, George H.W. Bush, Bill Clinton and George W. Bush. Battles have raged, too, within the loose-knit group of people who have backed Abu-Jamal, between those who argue that he is an innocent man, a political prisoner condemned for his politics, and those who simply argue that he never received a fair trial. Politicians at the local, state and even federal level, many without any real knowledge about this complex case, have prostituted themselves by pressing for Abu-Jamal's execution, while others, sometimes equally ignorant of the facts, have lionized him and honored him with honorary citizenships and street names.
Whatever one's views on this case, however, the reality is that it for the first time in 25 years, Abu-Jamal is finally going to get a chance in the second highest court in the land to make the case that his 1982 trial was fatally tainted by unconstitutional error, judicial bias, race-based jury selection and prosecutorial misconduct. The reality also is that the Third Circuit Court of Appeals, which will be hearing arguments on Abu-Jamal's appeal early next year (barring any unanticipated delays), could conceivably end up ordering a new trial for Abu-Jamal--a trial that, because of better defense counsel, a changed political climate, shifting demographics, the deaths of some witnesses, and the likelihood of new defense witnesses, would most likely end up setting him free, or having him released for time served. At the same time, the same three-judge panel hearing this appeal will also be considering a counter appeal by the Philadelphia District Attorney's office, which seeks to overturn a lower Federal District Court decision which five years ago tossed out Abu-Jamal's death sentence. So at the same time that the Third Circuit could end up giving Abu-Jamal a new chance to prove his innocence, or at least to leave prison a free man, it could ironically also end up sending him back onto death row and to a date with the needle.
Let's look at the DA's appeal first, since it's fairly simple.
In 2001, Judge William Yohn, a former Montgomery County state judge appointed to the federal bench by the first President Bush, found that Abu-Jamal's death sentence had been constitutionally tainted. He ruled that the instructions of the trial judge, the late Albert Sabo, and the jury polling form used by Sabo, were both confusing and could have led jurors to mistakenly assume that they could not consider any mitigating circumstances (which might argue against a death sentence) unless all 12 members of the jury agreed that such a mitigating factor existed. In fact, as Judge Yohn noted in his decision, the law allows any one juror who finds such a mitigating factor (for example, being a devoted father to a young child, or having a difficult childhood) to consider that factor in deciding whether or not to vote for a death penalty. Since the law requires a unanimous vote for death in order for a capital sentence to be imposed, this means that any one juror should be able to take execution off the table if she or he thinks there is a sufficiently mitigating factor.
If the DA can convince at least two of the three appellate judges that Yohn was wrong in his ruling, Abu-Jamal would be put back on death row, with his only remaining hope of avoiding execution being the US Supreme Court--or a reversal of his conviction itself. Even if the Third Circuit panel supports Yohn's overturning of the death sentence, however, Abu-Jamal could still end up facing execution. This is because once an Appeals Court decision is rendered, the DA will have 180 days to decide whether to seek a new trial on the sentence alone. If that were to happen, a new jury would have to be impaneled to hear arguments for and against execution, with the alternative being life in prison without possibility of parole.
Yohn's vacating of Abu-Jamal's death sentence was well-reasoned, and it seems unlikely that the higher court would reverse it, but this case has been full of surprises from the start--with most of them going against Abu-Jamal--so it cannot be ruled out.
Meanwhile, however, this past year there was a surprise ruling by the Third Circuit that went Abu-Jamal's way and that improved his chances of winning a new trial by 200 percent. That surprise came in the form of an announcement that Abu-Jamal would be allowed to add two additional grounds for appeal of his conviction to the one, which Judge Yohn had already certified for appeal.
Under existing law and federal court rules, a capital defendant is only guaranteed the right to appeal to the federal appellate court a ruling that a lower federal district judge has "certified" for appeal. Petitions to consider other issues may be made to appellate judges, but those appeals judges have no obligation to grant a hearing on them. In Abu-Jamal's case, Judge Yohn rejected all 20 of his appeals of his conviction. But on one of those claims--the argument that his jury had been systematically stripped of qualified black jurors by the prosecutor's use of peremptory challenges (challenges for which no reason has to be given)--the judge seemed troubled enough by the evidence presented that he certified an appeal to the Third Circuit Court of Appeals.
Abu-Jamal's appellate attorney, Robert R. Bryan of San Francisco, went ahead and pursued several other rejected grounds for appeal, though, and was rewarded last December with a decision by the Third Circuit to hear appeals arguments on two other grounds. One of these was the claim that prosecutor Joseph McGill, near the trial's end during his summation to the jury, had improperly led jurors to believe they needn't worry about the possibility of wrongfully convicting the defendant. Turning the basic requirement that jurors may only convict if they feel a case has been proven "beyond a reasonable doubt," McGill instead urged Abu-Jamal's jury to go ahead and vote guilty because their verdict would not be the last word. McGill, a veteran prosecutor who clearly knew what he was doing, improperly assured them, without any objection from the judge, that there would be "appeal after appeal" of their verdict, which he argued therefore "may not be final."
Federal courts have generally found unconstitutional such attempts to remove jurors' sense of responsibility for the gravity of their decision. It is hard to imagine how fair-minded appellate judges could allow such a blatant undermining of the law to stand, and yet, there have been many examples of appeals courts doing just this, and the Abu-Jamal case is a very politically charged issue.
The other ground for appeal which the Third Circuit invited an appeal filing on was the charge that Judge Sabo had been unconstitutionally biased against the defendant both at the original trial and during the 1995 post-conviction relief act (PCRA) hearing. A few years back, Abu-Jamal's defense team discovered a court stenographer, Terri Maurer Carter, who said that in the opening days of Abu-Jamal's trial, she, in the company of her own judge, Richard Klein (currently a state Superior Court Judge), had overheard Sabo say he would "help them fry the nigger." The alleged incident reportedly occurred at the end of the day as Sabo was exiting the courtroom along with his court clerk through the private "robing room" exit, just as Judge Klein, then a civil court judge who was planning to borrow Sabo's courtroom for evening hearings, and his stenographer, were entering the room.
Common Pleas Judge Pamela Dembe, in 2001, ruled that it wouldn't matter if Sabo had uttered those words, "since this was a jury trial." Hers was a bizarre decision, since even if jurors, not judges, render the verdict, judges clearly do make critical decisions about the admissibility of evidence, about the questions that may be asked of witnesses, and about how trials are to be conducted, and it's common sense that a biased judge could easily skew a trial against a defendant. But in any event, in a PCRA hearing, where there is no jury, it is the judge alone who determines whether new evidence is significant, what questioning will be allowed of witnesses, and what subpoenas will be issued on behalf of the defendant. Sabo's astonishing one-sidedness at that hearing was so blatant that it led the Philadelphia Inquirer to editorialize at the time: "The behavior of the judge in the case was disturbing the first time around--and in hearings last week he did not give the impression...of fair-mindedness. Instead, he gave the impression...of undue haste and hostility toward the defense's case."
Should at least two of the three appeals court judges considering this argument find evidence of unconstitutional judicial bias, it would not lead to an overturning of Abu-Jamal's conviction, but rather would more likely lead to a new round of evidentiary hearings before a federal judge--most likely Judge Yohn. At such a hearing, Abu-Jamal would likely be given a chance to recall and re-question witnesses whose testimony had either been disallowed or interfered with by Judge Sabo. Abu-Jamal would probably also be able to call new witnesses who have been discovered more recently, whose testimony might undermine some of the earlier prosecution witnesses in the case. It is possible there could also be recantations from some key prosecution trial witnesses. (For example, there were reports back in 1995 that one of the prosecution's key eye-witnesses to the Faulkner shooting, the cab driver Robert Chobert, had recanted his trial testimony, in which he had testified that his cab directly behind Faulkner's parked squad car, making him a direct witness to the shooting, and was instead saying that he had been parked on another street, facing away from the incident. Sabo had prevented this damaging line of questioning by the defense at the PCRA.) Clearly such a federal court evidentiary hearing could pave the way for the ordering of a new trial.
The third avenue of appeal of Abu-Jamal's conviction--the one certified for appeal by Judge Yohn in 2001--is perhaps his best shot at an overturning of his conviction. This is the claim of racial bias in jury selection--an issue that even the current conservative Supreme Court has been very sensitive to.
1 | 2
http://www.thiscantbehappening.net
The views expressed in this article are the sole responsibility of the author
and do not necessarily reflect those of this website or its editors.
 Contact Author |
Contact Editor |
 View Authors' Articles |
by Political Rights Defense Fund
$40.00
Number of pages:
Publisher: Unknown
by Gene Stephens
$5.95
Number of pages: 12
Publisher: World Future Society
by Tyler Giannini
$14.95
Lowest New Price $14.92
Number of pages: 170
Publisher: Human Rights Program, Harvard Law School
by Mick Ryan Profe
$52.95
Lowest New Price $38.65
Number of pages: 208
Publisher: Routledge
| 1 comments |
Want to post your own comment on this Article? 
|
||||
|
||||||||||||||
Must Read (0) 
Well Said (0) 
News (0) 
Touching (0) 
Funny (0) 
Supported (0) 
Interesting (0) 
Inspiring (0) 
Valuable (0) Tell a Friend:
|
Copyright © 2002-2009, OpEdNews |
