Momentous decisions are ahead in the 25-year-long case of Philadelphia death row prisoner Mumia Abu-Jamal, following a hearing before a three-judge panel of the Third Circuit Court of Appeals in Philadelphia Thursday.
Burns, who has been the lead attorney for the Philadelphia DA on this case since at least 1995, and who heads the appeals unit, went up against San Francisco death penalty appellate attorney Robert R. Bryan, who assumed the role of lead attorney for Abu-Jamal in 2003.
Abu-Jamal, who was not present at the packed hearing in the ceremonial courtroom of the Federal Courthouse across from the Liberty Bell museum in Philadelphia, had three claims before the Appellate Court, all challenging his conviction for the 1981 murder of Philadelphia Police Officer Daniel Faulkner. Judith Ritter, Abu-Jamal’s local counsel, argued argued against a claim by the District Attorney to overturn a 2001 decision by a lower federal court which threw out his death sentence. Christina Swarns, a counsel with the NAACP Legal defense Fund, argued in support of Abu-Jamal’s appeal as a “friend of the court.”
The two-and-a-half-hour hearing began with prosecutor Burns tryng to make the case that Federal District Judge William Yohn had erred in vacating Abu-Jamal’s death sentence. Judge Yohn had ruled in 2001 that an ambiguous and poorly worded jury verdict form, and an even more ambiguous instruction from the judge in the case, Albert Sabo, had left jurors believing, wrongly, that they had to all agree on any mitigating circumstances before weighing them in their decision as to the death penalty. In fact, any one juror can find a mitigating circumstance, while a death penalty decision must be unanimous. Burns claimed that Yohn’s basis for his ruling was flawed. But all three of the judges—Chief Judge Anthony Scirica and Judge Robert Cowen, both Reagan appointees, and Thomas Ambro, a Clinton appointee—seemed to take a dim view of Burns’ arguments. Judging from their challenging questions to Burns, and their generally favorable questions to Abu-Jamal’s attorneys, it seemed likely that they would, in the end, uphold Yohn’s decision.
If they do, Abu-Jamal’s death sentence would be lifted once and for all. At that point, the DA would have 180 days to decide whether to seek a retrial on just his sentence (not guilt). Several years ago, in an interview with this reporter, Joseph McGill, the original prosecutor at Abu-Jamal’s trial, said the DA’s office had apparently not decided whether it would seek a retrial on the death penalty if Yohn was upheld on appeal, as this would require impaneling a new jury, and essentially retrying the case, since a new jury would not know the issues leading to conviction. The DA has to realize that a death sentence would be much harder to win in today’s Philadelphia, where it would be much harder for the prosecution to obtain a jury of 10 whites and two blacks, as it managed to do for the trial in 1982. Also, in 1982, Jamal had an attorney who had never handled a death penalty case before, and he didn’t even attempt to bring in witnesses to offer mitigating evidence against a death sentence.
A definitive end to Abu-Jamal’s death sentence, even if his conviction remained in place or on appeal, would mean a major change in his status. For one thing, the DA’s office would no longer be able, as it has done since 2001, be able to pressure the courts into keeping him locked away in solitary confinement on the state’s super-max death row outside Pittsburgh.
On the conviction issues, the court and Abu-Jamal’s attorneys focused on a claim that his jury had been unconstitutionally purged of African Americans by a prosecutor who had a history of removing blacks from capital juries—a so-called Batson claim (after the US Supreme Court decision in 1986). The main presentation of the case by attorney Bryan was hampered by frequent questions from the judges, who kept asking for more evidence than just the undisputed fact that prosecutor McGill had used peremptory challenges to remove 10 otherwise qualified black jurors from the jury, compared with only five whites.
Bryan told the court that in the course of questioning potential jurors, McGill had asked different questions of black and white candidates for the jury, for example quizzing blacks in the jury pool on whether they had listened to Abu-Jamal on the radio. He also excused black jurors who were unemployed or who had been barred from a jury before, while allowing white jurors with the same experiences to serve. Bryan also pointed out that McGill had made his concerns about black jurors clear when, during the trial, he raised an alarm that a black judge had entered the courtroom and sat near Abu-Jamal’s supporters in the spectators’ gallery. Reading from the court transcript, Bryan noted that McGill had said, “If the court pleases, the two black jurors may know him.” (Of course, as Abu-Jamal's then attorney Anthony Jackson noted, there was an equal chance any of the white jurors might have known the judge, but McGill didn’t seem to care about them.) In his written brief to the court, Bryan also notes that McGill, over the course of six capital trials including Abu-Jamal’s, used peremptory challenges to strike 74 percent of qualified black jurors, compared to only 25 percent of white jurors. That brief also notes that over Ed Rendell’s two terms as Philadelphia district attorney, when the man who is now Pennsylvania's governor was McGill’s boss, the DA’s office struck black jurors in capital cases 58 percent of the time, compared to only 22 percent of the time for whites. (Indeed, in 1982, and until the high court’s Batson ruling in 1986, the Philadelphia DA actually followed a state supreme court decision called Henderson, which ruled that it was permissible for prosecutors to strike blacks from a jury if they thought they might tend to favor a defendant of the same race.)
DA prosecutor Burns, for his part, focused on an argument that Abu-Jamal’s jury bias claim had been forfeited on procedural grounds because he allegedly had not made it soon enough—either during his trial or in the early stages of his state court appeal. This argument was weakened by the fact that the Supreme Court only made race-based jury selection clearly illegal in 1986, well after Abu-Jamal’s trial, and by the fact that documentary scientific evidence of the Philadelphia prosecutor’s systematic rejection of black jurors did not come to light until after 1997, after Abu-Jamal’s state appeal had been exhausted.
At least one judge, Ambro, seemed clearly sympathetic with Abu-Jamal’s Batson claim. The other two judges were harder to read, as they asked tough questions of both Bryan and Burns. One judge, Cowen, on several occasions suggested the improbable possibility that since nobody knew the racial mix of the Abu-Jamal jury pool, it “might have been” majority African-American, “in which case the prosecutor’s peremptory challenges might be seen as having been biased against whites.” This view is clearly preposterous in a city where the court system had been--and to some extent still is--struggling to obtain an appropriate representation of African Americans on juries. Indeed, back in 1982, the city was still using only voter registration lists to call people to jury duty, and blacks at that time, while constituting 40 percent of the city's population, were notoriously under-represented on the voter rolls. Years later, following a federal lawsuit, the city has changed its method for compiling jury pools, but a lawyer long familiary with the issue says it would have been “almost inconceivable” for there to have been a majority black jury pool in 1982 under the old system.
If at least two of the three judges on the Third Circuit panel were to find prima facie evidence of a Batson violation in Abu-Jamal’s trial, they would likely send the case back to the Federal District Court, where Judge Yohn would be ordered to hold a full evidentiary hearing on the issue. In general, courts have held that the threshold for proving a prima facie case of a Batson violation--and thus winning an evidentiary hearing--is fairly low, while proving an actual case of bias--and winning a new trial--can be much harder.
The second appeal claim by Abu-Jamal--that his trial had been unconstitutionally tainted by a summation statement to the jury by prosecutor McGill in which he told jurors their guilty verdict would “not be final” because Abu-Jamal would have “appeal after appeal,” was given relatively short shrift at the hearing, because of the time spent on the Batson issue. Nonetheless it won support from a surprising quarter.
Prosecutor Burns argued to the court that they should not even be considering the issue, since the US Supreme Court has never ruled that such clearly improper language by a prosecutor should undo a conviction--only a death sentence. But Judge Cowen, looking incredulous, asked Burns, “Isn’t saying that undermining a defendant’s right to a fair trial?”
If Cowen took that question seriously--and feels that telling jurors that their judgment isn’t really final, could undermine the concept of “proof beyond a reasonable doubt”—then he could be considering overturning the guilty verdict. If a second judge went along with his view, that would mean a new trial for Abu-Jamal--except for the fact that the DA would certainly appeal such a decision to the US Supreme Court, (which would be bound to consider it, because of such a ruling’s far-reaching implications).
There was no discussion of Abu-Jamal’s third claim, which was that his post-conviction hearing had been constitutionally flawed because of a pro-prosecution bias on the part of Judge Albert Sabo, the same judge who had presided over his trial. The fact that there was no argument on this claim by either side doesn’t matter much, since both sides have filed detail briefs with the court, as they also did on the other claims. Apparently, the three judges had no major questions for either side regarding their respective arguments.
There is no specific timetable for the court to decide on the four claims before it, though some attorneys predict a decision can probably be expected in one or two months.