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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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This judge, speaking specifically to changing precedent, said since Third Circuit precedent did “…not have a federal contemporaneous objection rule…I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.”

Additionally, this dissenter stated that jury discrimination practices displayed in a now infamous video-taped training session at the Philadelphia DAs Office gave “a view of the culture” of that office during the 1980s when Abu-Jamal was tried.

This dissenter criticized his two colleagues for failing to make the obvious connection between the discrimination instruction given at the taped session and discriminatory practices used by Philadelphia prosecutors before, during and after the 1980s.

“Indeed, given that Abu-Jamal’s trial preceded Batson, it is not far-fetched to argue that the culture of discrimination was even worse,” the dissenter declared.

Previously, the Third Circuit ordered new federal trial court hearings to collect more evidence to enable full and fair determinations on jury discrimination claims.

The Third Circuit’s ruling rejected that procedure for Abu-Jamal.


This practice of creating new court standards to only apply to Abu-Jamal was criticized in an Amnesty International report of the Abu-Jamal case controversy released in 2001.

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AI criticized the Pa Supreme Court for altering its prior rulings – precedents – to reach results against Abu-Jamal.

In 1986, for example, the Pa Supreme Court overturned a Philadelphia death sentence after ruling that a prosecutor named Joseph McGill made improper comments to the jury during a trail presided over by Judge Albert Sabo.

McGill prosecuted Abu-Jamal in a 1982 trial presided over by Judge Sabo.

Abu-Jamal’s attorneys had alleged that McGill engaged in jury selection discrimination – a claim documented by evidence but a claim that the Third Circuit panel’s majority rejected. Sabo’s rulings during that 1982 trail aided this documentable discrimination.

During Abu-Jamal’s ’82 trial, McGill made the same comments to the jury that the Pa high court faulted in its 1986 ruling. But when the Court upheld Abu-Jamal’s conviction in 1989 it refused to find any fault with McGill making the same comments it had faulted him for in its ruling three years before.

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Then, in 1990, the Pa Supreme Court reinstated its 1986 standard regarding prosecutors making improper comments like McGill made.

The Pa Supreme Court’s flip-flopping on this form of prosecutorial misconduct led Amnesty International to state in its 2001 report that: “This contradictory series of precedents leaves the disturbing impression that the Court invented a new standard of procedure to apply it to one case only: that of Mumia Abu-Jamal.”

McGill’s improper comments to the jury faulted by the Pa Supreme Court in 1986 were an appeal issue before the Third Circuit Court. That federal court panel found no fault in McGill’s comments, denying Abu-Jamal relief he should have received if those federal appeals judges fairly followed established law.

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