The State Supreme Court ruled in Baker that the use of such language "minimize[ed] the jury's sense of responsibility for a verdict of death." When Abu-Jamal's appeal included the very same issue, the court reversed its own precedent in the matter, denying the claim in a shocking unanimous decision.
A year later, in Commonwealth v. Beasley, the Pennsylvania Supreme Court reinstated the death sentence of Leslie Beasley, but exerted its supervisory power to adopt a "per se rule precluding all remarks about the appellate process in all future trials." This rule not only reinstated the Baker precedent but it ordered all prosecutors in the state to refrain once and for all from referencing the appellate process in summations to the jury. The court could have made this new rule retroactive to Mumia's case, but did not.
As Amnesty International declared in its pamphlet about the case, the Pennsylvania Supreme Court's judicial scheming leave "the disturbing impression that the court invented a new standard of procedure to apply to one case only: that of Mumia Abu-Jamal," Temple University journalism professor Linn Washington aptly dubs this and subsequent court decisions denying Mumia a new trial "the Mumia exception."
Abu-Jamal's Post-Conviction Relief Act hearing in 1995 was doomed from the beginning when Judge Sabo - the original trial judge - would not recuse himself from the case and the Pennsylvania Supreme Court would not remove him for bias.
Abu-Jamal's federal habeas corpus appeal - decided by Federal District Judge William Yohn in 2001 - should have resulted in at least an evidentiary hearing on Abu-Jamal's Batson claim that the prosecutor unconstitutionally purged blacks from the jury by using peremptory strikes to exclude 10 or 11 otherwise qualified black jurors from being empanelled. Abu-Jamal's attorneys had included a study conducted by Professor David Baldus that documented the systematic use of peremptory challenges to exclude blacks by Prosecutor McGill in the six death-penalty cases he prosecuted in Common Pleas Court in Philadelphia. Abu-Jamal's trial was one of the six trials studied by Baldus. Judge Yohn barred the study on the erroneous grounds that the study was not from a relevant time period when, in fact, it was completely relevant. Judge Yohn's error was egregious and could have been easily avoided if he had held one evidentiary hearing on that defense claim. But during the two years that Judge Yohn considered Abu-Jamal's habeas appeal, he held no hearings.
The U.S. Court of Appeals for the Third Circuit should have corrected that district court mistake by remanding Abu-Jamal's case back to Judge Yohn to hold the evidentiary hearing on the Batson claim, but in another example of the "Mumia exception," the court instead continued the long and tortured denial of Mumia's right to a fair trial. In a 2 to 1 decision released on March 27, 2008 that reeked of politics and racism, the court ruled that Abu-Jamal had failed to meet his burden in providing a prima facie case. He failed, the majority wrote, because his attorneys were unable to establish the racial composition of the entire jury pool.
In the decision written by Chief Judge Anthony Scirica, the court stated that "Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a prima facie case can be made without evidence of the strike rate and exclusion rate. But, in this case [i.e., "the Mumia exception" is in play], we cannot find the Pennsylvania Supreme Court's ruling [denying the Batson claim] unreasonable based on this incomplete record."
In a nutshell, the majority denied Mumia's Batson claim on a technicality of its own invention, not on its merits. It also broke with the sacrosanct stare decisis doctrine - the principle that the precedent decisions are to be followed by the courts - by ignoring its own previous opposite ruling in the Holloway v. Horn case of 2004 and the Brinson v. Vaughn case of 2005. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. In a Ninth Circuit Court of Appeals ruling in 1989 in a case entitled United States v. Washington, the decision stated that an appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions." None of those variables were in play when the Third Circuit Court majority ruled against Mumia's Batson claim.
Judge Thomas Ambro's dissent was sharp: "...I do not agree with them [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for."
In other words, the majority, in this case alone, has upped the ante required for making a Batson claim beyond what the U.S. Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court did not require that the racial composition of the entire jury pool be known before a Batson claim may be raised. The high court ruled that a defendant must show only "an inference" of prosecutorial discrimination in purging potential jurors. Prosecutor McGill's using 10 or 11 of the 15 peremptory strikes he deployed is just such an inference - and an extremely strong one. McGill's strike rate of over 66 percent against potential black jurors is in itself prima facie evidence of race discrimination. Prima facie is a Latin term meaning "at first view," meaning the evidence being presented is presumed to be true unless disproved.
In commenting on Holloway v. Horn, a Batson-type case with striking similarities to Abu-Jamal's claim, Judge Ambro - the lone Democrat-appointed judge on the three judge panel - demonstrated just how disingenuous the panel's ruling against Abu-Jamal's Batson claim was. "In Holloway, Judge Ambro wrote in his 41-page dissent, "we emphasized that 'requiring the presentation of [a record detailing the race of the venire] simply to move past the first state - the prima facie stage - in the Batson analysis places an undue burden upon the defendant.' There we found the strike rate - 11 of 12 peremptory strikes against black persons - satisfied the prima facie burden." In Holloway, the Third Circuit ruled that the Pennsylvania Supreme Court's decision denying Holloway's Batson claim was "contrary to" and an "unreasonable application" of the Batson standard.
In fact, in rendering both its Holloway and Brinson decision, the Third Circuit specifically rejected the requirement that a petitioner develop a complete record of the jury pool. In making its ruling in Abu-Jamal's appeal, it reversed itself to make the pretext of an incomplete jury record his fatal misstep. Basing its ruling against Abu-Jamal's Batson claim on this invented pretext demonstrated how desperate the majority was to block Abu-Jamal's Batson claim. What the majority was implying was that Abu-Jamal's jury pool may well have consisted of 60 or 70 percent black people and that therefore the prosecutor's using 66 percent of his strikes to oust potential black jurors was statistically normal and did not create a prima facie case of discrimination. This hypothesis is, of course, absurd on its face. Blacks have been underrepresented on Philadelphia juries for years - and remain so today. What was likely was that the jury pool at Abu-Jamal's trial was at least 70 percent white.
The Third Circuit - if it had followed its own precedent - would have found the Pennsylvania Supreme Court's ruling denying Abu-Jamal's Batson claim "contrary to" and an "unreasonable application" of the Batson standard and remanded the case back to Federal District Court Judge Yohn to hold an evidentiary hearing to determine the prosecutor's reasons for excluding the 10 potential black jurors he struck. If that hearing satisfied Judge Yohn that all of the prosecutor's reasons for striking potential black jurors were race neutral, the Batson claim would fail. If, conversely, that hearing revealed racial discrimination on the part of the prosecutor during jury selection - even if only concerning one potential juror - Judge Yohn would have been compelled to order a new trial for Abu-Jamal.
Abu-Jamal's final opportunity for judicial relief was filed with the U.S. Supreme Court in November of 2008 in the form of a Petition for a Writ of Certiorari. On February 4, the high court docketed and accepted that filing. According to Abu-Jamal's lead attorney, Robert Bryan of San Francisco, "The central issue in this case is racism in jury selection. The prosecution systematically removed people from sitting on the trial jury purely because of the color of their skin, that is, being black."
For at least two compelling reasons, it appeared that the U.S. Supreme Court would grant Abu-Jamal's petition. In its last term, the high court expanded its 1986 Batson ruling in its Synder v. Maryland decision to warrant a new trial if a minority defendant could show the inference of racial bias in the prosecutor's peremptory exclusion of one juror. Under Batson, the defense needed to show an inference - i.e., a pattern - of racial bias in the overall jury selection process. Ironically, the Supreme Court's 7-2 decision strengthening and expanding Batson's reach was written by Justice Samuel Alito, most recently of the Third Circuit Court of Appeals.
The second reason was that the Third Circuit's ruling denying Abu-Jamal's Batson claim undermined both the Batson and Synder decisions by placing new restrictions on a defendant's ability to file a Batson claim. The Third Circuit ruling against Abu-Jamal had the effect of creating new law by tampering with a long-established Supreme Court precedent.
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