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Abu-Jamal Case at Third Circuit, Prosecutor Admits He Had No "True Defense"
By Dave Lindorff (about the author) Page 2 of 2 page(s)
Consider that between 1977 and 1986, McGill used peremptory challenges to strike 74 percent of qualified African-American jurors from trials he prosecuted, compared to only 25 percent of whites. Consider further that under DA Rendell, the Philadelphia prosecutor's office overall, over the same eight-year period, struck black jurors 58 percent of the time, while striking white jurors only 22 percent of the time. This is on its face damning evidence of a systematic policy of illegal race-based jury selection on the part of both McGill and of the DA's office. Moreover, under existing Supreme Court precedent, a defendant, to prove unconstitutional race-based jury selection, does not even need to prove that there is a pattern of discrimination--only that there is evidence that race was a factor in his specific trial. McGill's line of questioning during jury selection for this trial makes it evident that such was likely the case. For example, black jurors who were dismissed, not "for cause" but peremptorily, were frequently asked by McGill if they had "listened to black radio," while white jurors were never asked such a question. At one point, McGill also interrupted Judge Sabo to observe that a black judge had entered the courtroom and seated himself on the side of the visitor's seating area where Abu-Jamal's supporters were. McGill said to the judge, "If the court pleases, the two black jurors may know him." Since it was just as likely that the ten white jurors might have known Judge Calvin Wilson, this was clear evidence that McGill saw black jurors as being fundamentally different from white jurors."
Judge Sabo, it should be noted, studiously ignored McGill's outburst--perhaps aware of how damaging they could be.
Although the above statistical evidence was submitted to Judge Yohn by Abu-Jamal's defense team, the judge never even considered it, because he confused and conflated several studies submitted by the defense, and incorrectly concluded that neither the McGill jury statistics nor the Rendell jury statistics covered the period of Abu-Jamal's trial. Because Yohn rejected that evidence out of hand, he did not bother to review other evidence of race-based jury selection specific to the trial. Yet in fact, not only did the period of both those studies cover the period of Abu-Jamal's 1982 trial; his trial was in fact a part of those statistics.
Should at least two of the three judges hearing the Third Circuit appeal conclude that there was an attempt at racial exclusion underlying McGill's peremptory challenges, they would have no alternative but to order a new trial for Abu-Jamal. An alternative would be for the Third Circuit to send the issue back to Judge Yohn, with instructions that he reconsider, based upon all of the evidence submitted by the defense. Given that evidence, there is a very good chance that in the end, Abu-Jamal could get a new trial, with a jury that, in today's Philadelphia, would likely have four to six African-American jurors on it instead of only two.
It seems clear that the coming hearing of Abu-Jamal's appeal before the Third Circuit Court of Appeals, at which there will be oral arguments presented by both sides, will be dramatic and possibly explosive. And since any decision by the appeals court will lead, at a minimum, to a whole new round of appeals, while some could lead to new hearings or to a new trial, or penalty trial, it seems equally clear that this 25-year-old death penalty case will be around for some time to come, as will the man who has spent those 25 years--including the last five during which his sentence has technically been lifted--in solitary confinement on Pennsylvania's grim death row.
Meanwhile, those who continue to lobby tirelessly for Abu-Jamal's execution--especially Faulkner's widow Maureen and the Pennsylvania Fraternal Order of Police, as well as Governor Rendell himself--should take note of an astonishing statement made by Abu-Jamal prosecutor McGill in a December 3 article in the Inquirer. McGill, now retired and a private attorney, who had assured me in an interview for my book on the case (Killing Time), that it had been "the strongest case" he'd ever handled, told the Inquirer reporter that Abu-Jamal "could have been convicted of a lesser offense" had he waged a "true defense."
It is well known that the Philadelphia District Attorney's office has had a long history, stretching back at least to Rendell's two terms as DA, of deliberately overcharging defendants in hopes of winning plea bargains, and of deliberately seeking the death penalty even when it is inappropriate, in order to be able to "death qualify" and screen out jurors who are opposed to capital punishment (many academic studies have documented that pro-execution jurors tend to be more pro-government and more inclined to convict than jurors who object philosophically or on religious grounds to capital punishment). Indeed many jurisdictions in Pennsylvania consider this tactic--still practiced under DA Lynne Abraham--to be unethical.
McGill's statement suggests that this tactic may have been applied in Abu-Jamal's case. It is also an admission by McGill that Abu-Jamal never had a "true defense."
Now I know McGill claims that this is because Abu-Jamal himself screwed up by insisting on being able to defend himself, but the truth is more complicated. In fact, Abu-Jamal had hired an attorney, Anthony Jackson, whom he thought was up to the task, but who in fact had never handled a death penalty case, and who moreover had a drug habit (he was subsequently disbarred for financial improprieties, allegedly related to drugs). When Jackson began messing up, Abu-Jamal tried to get rid of him, but was not allowed to do so by Judge Sabo, who seemed to relish the discord that he was encouraging between the defendant and his counsel. What Abu-Jamal ended up with was the worse of all possible worlds: an incompetent defense counsel, but no right to represent himself either.
In America, the right to a fair trial is sacred. Is this the kind of situation--a defendant who did not have a "true defense"--one that anybody, including McGill, would want to see lead to a man's conviction and execution?
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For informatin about Dave Lindorff's book Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2004), please go to: www.thiscantbehappening.net 
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