Attorney Robert R. Bryan of San Francisco, a veteran capital appeals lawyer who took over Abu-Jamal's defense in 2003, filed a brief on July 20 in the Third Circuit Court of Appeals in Philadelphia, laying out three arguments for overturning Abu-Jamal's murder conviction. The brief also argues for upholding a December 2001 decision by a lower Federal Court that overturned Abu-Jamal's death sentence--a decision that has been appealed to the Third Circuit by the Philadelphia District Attorney's office.
Bryan lays out three claims, all of which which challenge Abu-Jamal's conviction for the 1981 shooting death of Officer Daniel Faulkner.
First, he makes the indisputable point that prosecutor Joseph McGill, in his summation to the jury at trial, "unconstitutionally diminished the jury's role, misled the jury, undermined the reliability of the guilt-innocence determination, and sabotaged the right to the presumption of innocence and not to be convicted unless proved guilty beyond a reasonable doubt" by telling the jury that they didn't need to worry about maybe being wrong about voting "guilty" because the defendant would have "appeal after appeal" and so a guilty verdict "may not be final."
Abu-Jamal's second line of appeal deals with the claim of racial bias by the prosecutor in the selection of the jury. The US Supreme Court has long established that if a prosecutor purposefully uses peremptory challenges to eliminate from the jury persons of a particular race, that is in itself adequate reason for overturning the conviction. In making the argument that such illegal activity occurred, Bryan shows that of 39 jurors considered by the prosecution, 15 were struck, and that of those 15, at least 10 (and probably 11) were black. Looked at another way, prosecutor McGill struck 71 percent of the blacks he had an opportunity to reject, but just 20 percent of the whites. Bryan writes, "This racial disparity is the type of 'pattern' that supports a prima facie case" of race discrimination.
Bryan cites a study (improperly rejected as evidence by the federal district court in 2001) of Philadelphia prosecutors' racial jury selection practices between 1981 and 1997. That study, by Prof. David Baldus (which resulted in the overturning of another murder conviction in Pennsylvania), found that during that 17-year period, which included Abu-Jamal's own 1982 trial, prosecutors struck 51 percent of black jurors and only 26 percent of white jurors-a damning record of unconstitutional racial bias. Furthermore, Bryan notes that even after Abu-Jamal's trial, the district attorney's office was using a training tape that taught new prosecutors how to remove blacks from jurors and to avoid getting caught practicing racial discrimination. (The trick, the tape said, was to keep contemporary notes and to write down some non-racial reason for each peremptory strike of a black juror, to be offered as explanation should a Batson challenge ever be brought on appeal.)
Bryan argues that since prosecutor McGill has never been required to offer a non-racial explanation for his apparent race-based jury selection in Abu-Jamal's trial, the Appeals Court should either overturn the conviction or, at a minimum, order an evidentiary hearing in federal court at which the prosecutor, now retired, would have to make a case that his 10 peremptory strikes of black jurors were all for reasons other than race.
Finally, Abu-Jamal and his attorney argue that bias on the part of the trial judge, Albert Sabo, who was overheard saying, after the first day of jury selectin, that he was going to help the prosecution "fry the n-word," denied Abu-Jamal a chance for a fair trial. Bryan notes that Judge Sabo, who oversaw the highest number of death sentences of any judge in the nation (31, all but 2 of them black), had a long record of racial bias. As Bryan writes of the 1995 Post Conviction Relief Act hearing on Abu-Jamal's case which Sabo also presided over, "The hostility and bias of Judge Sabo could not have been more apparent. Journalists, both local and national, publicized the rank unfairness of the proceedings. The leading paper in Philadelphia observed: 'The behavior of the judge was disturbing the first time around-and in hearings last week he did not give the impression to those in the courtroom of fair-mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case.'"
Bryan concedes that under federal habeas statutes, federal courts may not remand cases to state courts for evidentiary hearings. But having demonstrated that Judge Sabo, who acted as the supposedly impartial "fact finder" in the PCRA hearing, was clearly biased, he writes that the appropriate remedy would be for a federal district court to re-examine the original facts presented at trial, and the new evidence presented during the 1995 PCRA directly--as well as evidence and witnesses which Sabo refused to allow--ignoring Sabo's earlier findings of fact.
Should the three-judge appellate court hearing Abu-Jamal's appeal support either of the first two claims of constitutional violations in his original trial, Abu-Jamal could find himself facing a new trial. Alternatively, in the jury bias claim, Abu-Jamal and his attorney have proposed the remedy of a new hearing in federal district court, probably before the same judge, William Yohn, who earlier rejected both claims, but who overturned Abu-Jamal's death sentence.
Judge Yohn had denied Abu-Jamal's claims concerning the prosecutor's "appeal after appeal" summation statement and concerning evidence of Judge Sabo's bias, which meant the Third Circuit Court had no obligation to hear either issue, but the higher court late last year over-ruled Yohn and certified both issues for appeal. It seems clear that at least two of the three judges assigned to Abu-Jamal's appeal case thought that there was some merit to the two additional claims. Yohn also rejected the claim regarding racial bias in jury selection, but did certify it for appeal to the Third Circuit.
Back in 2001, Judge Yohn overturned Abu-Jamal's death sentence. Yohn's carefully worded explanation for his ruling overturning that conviction explained that Abu-Jamal's penalty-phase verdict form and instructions, which were provided to the jurors to fill out, were flawed documents that, combined with Judge Sabo's flawed instructions, improperly led jurors to believe that unless all 12 of them agreed on a mitigating circumstance that might argue against a death penalty, they could not consider that circumstance in their deliberations. In fact, unanimity of the jury is only required for aggravating circumstances--those that argue in favor of a death penalty. Mitigating circumstances can be considered by any individual juror--an crucial difference since a death sentence must be reached unanimously. Thus if one juror finds a mitigating circumstance--for example that a defendant is a dedicated father to a young child--that one juror could decide to vote against death. Since the jury form's wording and the instructions from the judge both implied that unanimity was required before a mitigating circumstance could be considered, Judge Yohn held that the sentence was void.
The district attorney has appealed this ruling, hoping to have the death penalty reinstated by the Third Circuit. The DA's office, which for decades, and under several different district attorneys, has been obsessed with getting Abu-Jamal injected with lethal chemicals, makes the nit-picking claim that Abu-Jamal's habeas appeal of his sentence was flawed because it only mentioned the third page of the jury form, not the form in its entirety, so that Judge Yohn should not have considered problems in the whole form--only the third page. Bryan makes short work of this argument--which would have his client executed on a technicality--by noting that the habeas appeal in question specifically refers at least once to the form "in its totality."
Both sides in the case will now have an opportunity to respond to the filings of the other side, meaning that the case is unlikely to go to a hearing until fall at the soonest. In the meantime, thanks to a motion by the district attorney, Abu-Jamal, who has insisted on his innocence in the murder of Officer Faulkner, remains in solitary confinement on death row, despite his death sentence having been lifted five years ago.
It is worth pointing out that as the Bush administration has been trashing civil liberties and the Constitution, revoking the fundamental Common Law tradition of habeas corpus (the right to bring one's detention to a court for a ruling on its legality), and the right to a fair trial before an impartial jury of one's peers, Abu-Jamal's case has become an increasingly important part of the struggle to defend those rights for all Americans.
Dave Lindorff is author of "Killing Time: An Investigation Into the Death Penalty Case of Mumia Abu-Jamal" (Common Courage Press, 2003).