The next critical issue in dispute was Mumia’s contention that in violation of the famous U.S. Supreme Court decision in the 1986 case of Batson v. Kentucky, racism guided the state’s use of preemptory challenges to exclude Black jurors. Of the 14 qualified Black jurors interviewed in Mumia’s 1982 trial, prosecutor Joseph McGill eliminated 10 with preemptory strikes, that is, removal with no stated cause.
Of the 25 possible white jurors, McGill eliminated only five. That left Mumia with a jury of nine whites and three Blacks (plus four white alternate jurors) in a city with a Black population of 40 percent. The jury’s racial composition was further altered when Judge Sabo eliminated a Black juror already selected, who was replaced with a white juror, for a final jury composition of 10 whites and two Blacks.
The Black juror was dismissed after she went home in the evening when the trial was not in session to attend to her sick cat despite Judge Sabo’s refusal to grant her permission to do so. But permission to leave the courtroom was not denied to a white juror for who Sabo authorized a police escort to take a civil service exam although it meant suspending the trial itself for a half day.
Race prejudice in jury selection by prosecutor Joseph McGill was cited by Bryan in both Mumia’s written brief and Bryan’s oral arguments. McGill, in six murder trials, including Mumia’s, had removed 74 percent of Black jurors with preemptory challenges as compared to 25 percent of white jurors. Prior to becoming Pennsylvania governor, District Attorney Ed Rendell had established a two-term record of having prosecutors use preemptory challenges to bar 58 percent of all Blacks from Philadelphia juries as compared to 22 percent for whites.
Further, the routine exclusion of Black jurors was the established practice of Philadelphia prosecutors, in accord with an overtly racist 1982 State Supreme Court decision in the case of Commonwealth v. Henderson, which held, “The race, creed, national origin, sex or other similar characteristics of a venireman (member of a jury pool) may be proper considerations in exercising peremptory challenges.”
That is, a Black person in Pennsylvania could be legally excluded from a jury panel if the prosecutor believed that he/she would be sympathetic to a Black defendant! Henderson was reversed at least in part by the U.S. Supreme Court’s 1986 Batson decision. Hugh Burns’ response to the data proving the exclusion of Blacks was that it was irrelevant and technically barred from consideration because the defense allegedly did not present it in a timely manner, that is, during the 1995 Post Conviction Relief Act hearing when new evidence was supposedly open to consideration. At that time, however, the extent of the data was unknown and did not become known until the case reached the federal courts.
A new twist to the issue of racist exclusion of Blacks was added to the hearing when the presiding judges themselves queried the defense as to the composition of the entire venire (jury pool) from which jurors were selected. Since no such data was available on this matter two of the judges speculated that it was hypothetically possible that the Black percentage of the entire jury pool could have been so high that McGill’s peremptory elimination of 71 percent of the Black jurors might not constitute discrimination at all. Indeed, one judge speculated with a straight face that it was possible that “discrimination against whites” might be the case!
At no time during Mumia’s decades of legal battles had the prosecution itself raised such a possibility, either in written briefs or oral arguments. The reason is obvious. The history of jury pools in Philadelphia had always indicated that Blacks were highly underrepresented, as opposed to the hypothetical scenario presented by two of the judges that the possibility existed that Blacks could have been over-represented. But the judges’ toying with the issue could indicate an inclination to establish a new precedent to undermine Mumia’s Batson claim.
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