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"This Is No Victory"--Analysis of Third Circuit Court decision re. Mumia Abu-Jamal

By Linn Washington, Jr.  Posted by Hans Bennett (about the submitter)     Permalink
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That Justice, Samuel Alito, had approved relief to Philadelphia murder defendants due to discriminatory jury selection practices by prosecutors. Alito, in a February 2005 Third Circuit ruling, stated prosecutors commit a violation by removing “any black juror because” of their race – a position similar to the position contained in that recent US Supreme Court ruling he authored.


The Third Circuit’s ruling rested on a procedural finding by two of the three judges on this appeal’s court panel. This finding stated that lawyers for Abu-Jamal during the 1982 trial and the 1995 appeal hearing failed to follow the procedures legally required to properly raise the issue of prosecutors improperly using racism during the jury selection process.

The panel’s majority asserted that “Abu-Jamal has forfeited his Batson claim by failing to make a timely objection” to improper procedures by prosecutors referencing the US Supreme Court’s 1986 Batson ruling that outlaws the exclusion of black jurors for reasons rooted in racism.

Philadelphia area author and investigative reporter Dave Lindorff notes the absurdity of holding Abu-Jamal’s lawyer responsible for not strictly following procedures during the 1982 trial that the US Supreme Court did not create until four years later in that 1986 Batson case.

No lawyer (or judge) in the United States could predicted what procedure the US Supreme Court would order four years in the future observes Lindorff, author of the seminal 2003 book on the Abu-Jamal case: “Killing Time…”

In reaching this conclusion against Abu-Jamal’s jury discrimination claim, that Third Circuit panel’s majority created a new standard for persons raising Batson claims in that court.

This standard requires that a Batson violation claim must be raised at the time of jury selection -- a contemporaneous objection.

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Interestingly, in reaching this conclusion of procedural errors by Abu-Jamal’s attorney, the panel’s majority failed to note that this lawyer at 1982 trial was unfairly thrust into the jury selection process after that process was underway without the opportunity to do any preparation.

The trial judge granted the prosecutor’s request to remove Abu-Jamal from selecting his own jury, a decision without merit that unfairly benefited the prosecutor and stripped Abu-Jamal of his right to represent himself. Plus, this action aggravated tensions between Abu-Jamal and his attorney.

Further, the panel’s majority faulted an Abu-Jamal lawyer for not properly raising the jury selection racism issue during Abu-Jamal’s first appeal in the late 1989s to the Pa Supreme Court without acknowledging a major error committed by the lawyer who filed that appeal.

That attorney prepared that appeal without ever reviewing the trial transcript.

There is no way that attorney could have prepared a legally valid appeal without knowing what specifically had happened at trial. (That appeal attorney was also suffering from what proved to be a fatal brain tumor, a medical condition that impaired that attorney’s cognitive abilities.)

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In creating this new standard, the panel’s majority makes it harder to prove Batson violations. Plus, this standard changes that court’s precedent on procedures needed to raise Batson claims.

The judge who dissented from his two colleagues faulted them for creating this new standard, a standard not ordered by the US Supreme Court.

“This case’s newly created contemporaneous objection rule…goes against the grain of our prior actions, as our Court has addressed Batson challenges on the merits without requiring that an objection be made during jury selection in order to preserve” future appellate review, the dissenter said.

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