By Dave Lindorff
After spending almost a year’s time deliberating following a hearing last May 17, a three-judge panel of the Third Circuit Court of Appeals in Philadelphia has shot down all three claims by death row prisoner Mumia Abu-Jamal challenging his conviction for the 1981 murder of Philadelphia Police Officer Daniel Faulkner.
At the same time, the appeals court upheld a 2001 decision by Federal District Judge William Yohn that had overturned former Black Panther and Philadelphia journalist Abu-Jamal’s death sentence, agreeing with the lower court judge that the form used by the trial jury in 1982 to establish whether jurors felt there were any mitigating circumstances was flawed, and could have left panelists mistakenly believing that before they could consider any such mitigating factors in their deliberations, they would all have to agree such a factor existed. In fact, by law if even one juror believes that there is a mitigating factor, that factor can be considered by jurors in deciding on death or life in prison.
The court was unanimous in rejecting Abu-Jamal’s claim that the trial judge, Albert Sabo, had been prejudiced against him and in favor of the prosecution when he presided over a Post-Conviction Relief Act hearing in 1995-6. It was also unanimous in rejecting Abu-Jamal’s claim that Prosecutor Joseph McGill had improperly diminished the jury’s sense of responsibility during the conviction phase of the trial by telling them that their decision would not be final as there would be “appeal after appeal.” The appellate judges didn’t say that McGill’s statement was proper, or even that it might not have impacted jurors’ decision on guilt, but rather agreed that by court precedent they had only used evidence of such prosecutorial misconduct to overturn death sentences, not convictions. (Arguably, in the unlikely event that the Philadelphia DA were successful in getting the US Supreme Court to reverse the Third Circuit and reimpose Abu-Jamal’s death penalty, he could go back and appeal the sentence based upon this statement to the jury by McGill.)
Judge Thomas Ambro, a Clinton appointee to the bench—chastised his two colleagues, Chief Judge Anthony Scirica and Judge Robert Cowan-- both Reagan appointees--saying that they were applying a different, and unattainable standard of proof to Abu-Jamal than they had been using for other cases brought before them.
In rejecting Abu-Jamal’s claim of racial bias in jury selection—something known as a Batson violation, after the Supreme Court’s 1986 decision in Batson v Kentucky—the court majority wrote that Abu-Jamal had not made a timely protest over prosecutor McGill’s rejection of 10 black jurors without cause (McGill used 15 of his 20 available peremptory challenges to remove at least 10 qualified black and 5 qualified white jurors). The majority also proposed that because Abu-Jamal had not provided the court with the racial makeup of the jury pool, it was impossible to know whether perhaps two-thirds of that pool might have been black, giving an “innocent explanation” to McGill’s 66.7% black rejection rate. (Local attorneys scoff at such a notion, saying they've never seen a jury pool so skewed racially.)
Judge Ambro then accused his robed colleagues of having a double standard, saying “Our Court has previously reached the merits of Batson claims on habeas review in cases where the petitioner did not make a timely objection during jury selection—signaling that our Circuit does not have a federal contemporaneous objection rule—and I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.” He added, “Why we pick this case to depart from that reasoning I do not know.”
Going further, Judge Ambro writes, “We have repeatedly said that a defendant can make out a prima facie case for jury-selection discrimination by showing that the prosecution struck a single juror because of race…In fact, in United States v. Clemons, we explained that 'striking a single black juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks.’...Yet the majority focuses on the absence of information about the racial composition and total number of the venire [jury pool], claiming that this statistical information—from which one can compute the exclusion rate—is necessary to assess whether an inference of discrimination can be discerned in Abu-Jamal’s case. Such a focus is contrary to the nondiscrimination principle underpinning Batson, and it conflicts with our Court’s precedents, in which we have held that there is no “magic number or percentage [necessary] to trigger a Batson inquiry,”
One thing Judge Ambro didn’t mention in his 41-page dissent was the evidence presented by Abu-Jamal to the court of a clear history of deliberate race purging of juries by the Philadelphia DA’s office, and by prosecutor McGill in particular. That evidence, developed by academic researchers and by attorneys at the Federal Defenders’ Office in Philadelphia, show that between 1977 and 1986, while Ed Rendell was Philadelphia’s District Attorney, local prosecutors used peremptory challenges to strike qualified blacks from juries in death penalty cases 58 percent of the time, compared to 22 percent of the time for qualified whites. During the same period of time, prosecutor McGill himself struck qualified black jurors 74 percent of the time in death penalty cases he tried, compared to 25 percent of qualified white jurors. This is seriously damning evidence of racial bias in jury selection.
Interestingly, one of the Third Circuit precedents referred to by Judge Ambro was a 2005 case heard by Judge Sam Alito, now elevated to the Supreme Court. In that case, Brinson v Vaughn, Alito overturned the appellant’s death penalty conviction, writing that "...a prosecutor may violate Batson even if the prosecutor passes up the opportunity to strike some African Americans jurors." Alito further stated in that decision that "a prosecutor's decision to refrain from discriminating against some African Americans does not cure discrimination against others." (Significantly, the High Court’s latest Snyder decision opinion was also penned by Justice Alito, who shows himself to be a passionate opponent of racism in jury selection.)
What appears to be happening here, and what obviously upset Judge Ambro, is that the other two judges, Scirica and Cowan, are demonstrating another example of what my colleague, Philadelphia journalist Linn Washington, has dubbed the “Mumia Exception.”
Washington has noted that on several occasions during Abu-Jamal’s epic 26-year battle to survive Pennsylvania’s death row machine, the state’s courts have altered the rules to keep him locked up and on course for execution. Pennsylvania’s top court in 1986 overturned a death sentence where McGill, the same prosecutor in Abu-Jamal’s case, had made the same closing statement to jurors at the conclusion of a murder trial presided over by Judge Sabo, the same trial judge who presided in Abu-Jamal’s case. The court, declaring that the prosecutor’s language had “minimize[ed] the jury’s sense of responsibility for a verdict of death,” had ordered a new trial that time. Three years later in 1989, despite this precedent and presented with an identical situation involving the same characters, the same court reversed itself, though, upholding Abu-Jamal’s conviction. Eleven years later, Pennsylvania’s highest court reversed track again, barring such language by prosecutors “in all future trials,” but not making their decision retroactive to include Abu-Jamal.
Another example of this judicial “special handling” where Abu-Jamal’s case is concerned, involves the right of allocution – the right of the convicted to make a statement without challenge before sentencing. One month before initially upholding Abu-Jamal’s conviction in March 1989, the Pennsylvania Supreme Court issued a ruling declaring the right of allocution to be of “ancient origin” and saying that any failure to permit a defendant to plead for mercy demanded reversal of sentence. Abu-Jamal’s appeal claimed Judge Sabo, by allowing the prosecutor to question Abu-Jamal on the stand after the convicted defendant had made just such a statement to jurors, violated his allocution right during the ’82 trial. The state’s high court, however – for the first time in its history – ruled that the “right of allocution does not exist in the penalty phase of capital murder prosecution.”
In yet a third example, Common Pleas Judge Pat Dembe, hearing a request by Abu-Jamal for a new Post-Conviction Relief Act Hearing on his case after testimony from people who had overheard his trial and PCRA judge vow to "fry the n-word" at the close of his trial's opening day, asserted that he had no case because "...since this was a jury trial, as long as the presiding judge's rulings were legally correct, claims as to what might have motivated or animated those rulings are not relevant."
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