Mumia Case on Hold as Appellate Judges Deliberate

by Dave Lindorff

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 against a fourth 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 more difficult 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, 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 proposed 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 his own 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.


Outside the courtroom, in the plaza in front of the courthouse, and along 6th Street, several hundred pro-Abu-Jamal demonstrators, many carrying “Free Mumia” signs, staged a spirited demonstration. Inside the courtroom, Abu-Jamal supporters filled most of the seats reserved for spectators. Near the front sat Officer Faulkner’s widow, Maureen, and several family members and supporters, who were allowed to enter the courtroom via a private entrance while other spectators had to go through security gates and line up at the courthouse’s main entrance.

The case of death row prisoner Mumia Abu-Jamal, now a quarter of a century long, is heading to a climax this Thursday in a hearing before a three-judge panel of the Third Circuit Court of Appeals in Philadelphia. It is a hearing that could result in a new trial for the Philadelphia journalist and former Black Panther, or possibly in a new date with the executioner.


The wide range of possible outcomes of this hearing results from the fact that Abu-Jamal and the Philadelphia District Attorney have filed cross-appeals in the case. Abu-Jamal, convicted in 1982 for the 1981 slaying of white Philadelphia Police Officer Daniel Faulkner during an arrest of Abu-Jamal’s younger brother William, is appealing his conviction. He is arguing that his jury was unconstitutionally purged of black jurors by the prosecutor, who used peremptory challenges to bar 10 or 11 black jurors from being seated, though all had said that they could vote for a death penalty. He is also appealing his conviction on the ground that the prosecutor, Joseph McGill, improperly diminished the jury’s sense of responsibility for their verdict by telling them that a guilty verdict would “not be final” since there would be “appeal after appeal.”

The DA’s office, meanwhile, has appealed a 2001 decision by Federal District Judge William Yohn overturning Abu-Jamal’s death sentence—a ruling that if sustained, converts Abu-Jamal’s penalty to life in prison without possibility of parole.

It is impossible to second-guess what the three judges sitting on this appeal will decide on any of the claims before them, but looking at their prior decisions, all three of the judges, who include Chief Judge Anthony Scirica and Judge Robert Cowen, both Reagan appointees, and Judge Thomas Ambro, a Clinton appointee have, during their time on the Third Circuit, overturned capital convictions based upon the same claim Abu-Jamal is making about race-based exclusion of jurors by the prosecution.


In his federal habeas appeal of his conviction—the so-called Batson claim regarding jury bias--Abu-Jamal’s attorneys noted that in a city that is 44 percent African-American, his jury initially had only three black members (one was removed before the start of the trial, under questionable circumstances also possibly relating to judicial bias, leaving only two).


Abu-Jamal further presented evidence that his mostly white jury was the result of a pattern of racism in the city’s justice system. Prosecutor McGill, who used 11 of his permitted 15 peremptory challenges (challenges to bar jurors for which no reason has to be provided), to remove black jurors otherwise qualified to sit, had a record over the course of six capital cases between 1977 and 1986, of striking 74 percent of potential black jurors while striking only 25 percent of white jurors. Furthermore, defense data show that over the same period, during which Ed Rendell was Philadelphia’s district attorney, prosecutors working under his direction collectively used their peremptory challenges to eliminate black jurors 58 percent of the time, compared to only 22 percent of the time for white jurors.

If the appellate court decides that this damning statistical evidence shows or suggests a pattern of racism in jury selection, it would be bound to either order a new trial, or to remand the case back to Judge Yohn for a full hearing on the jury bias issue.

This would appear to offer Abu-Jamal his best chance for a new trial. If the judges vote the way each of them has voted in other similar cases, it could happen.


A second possibility for a new trial would be McGill’s clearly inappropriate summation to the jury, in which he essentially told them to forget about “proof beyond a reasonable doubt,” and which the judge, who still posthumously holds the national record for death penalty convictions (31), allowed to go unchallenged. Many a death sentence has been overturned for just such prosecutorial misconduct, but to date, neither the Third Circuit nor the US Supreme Court has overturned a conviction on the basis of such comments. Still, it remains a possible avenue for a reversal and a new trial.


A third avenue of federal appeal by Abu-Jamal argues that his initial appeal of his conviction, called a Post-Conviction Relief Act (PCRA) hearing, was constitutionally flawed because the judge—the same Albert Sabo who tried him originally—was biased in favor of the prosecution. Local newspaper editorials made that observation during the hearing. But more importantly, the PCRA hearing transcript shows that Sabo refused to grant any subpoenas to the defense to compel witness testimony, and that the judge repeatedly cut off lines of questioning of witnesses by defense attorneys when it appeared they were about to undermine the case. One witness who told of being pressured to lie at the trial, found herself arrested in the courtroom immediately following her testimony, while she was still on the witness stand. She was led off in handcuffs with the judge’s blessing on a check-kiting charge, despite a pledge by her attorney to have her appear on the charge—normally a routine procedure. If the appellate panel rules in favor of this claim, Abu-Jamal would not get a new trial, but would get a reopened or a new PCRA, probably in federal instead of state court. At such a hearing, new evidence of innocence could be presented, and witnesses from the original trial and the earlier PCRA hearing could be further questioned and old testimony challenged.


Abu-Jamal, while still held in solitary confinement on Pennsylvania’s death row at the insistence of Philadelphia District Attorney Lynn Abraham, is at this moment not facing the death penalty. Federal District Judge Yohn ruled in 2001 that a poorly worded jury verdict form and equally poor instructions from Judge Sabo during the trial’s penalty phase left jurors thinking, incorrectly, that they could consider no mitigating circumstances in deciding on his sentence unless they all agreed on it. In fact, under current law, if any one juror finds a mitigating circumstance, it has to be weighed in their collective decision, which must itself be unanimous for a death penalty. While it is unlikely that the Third Circuit judges will overturn Judge Yohn’s revocation of Abu-Jamal’s death sentence, which was well reasoned and based upon solid US Supreme Court precedent, the DA’s office is making the effort, claiming that the precedent doesn’t apply in his case.

In fact, over the course of Abu-Jamal’s more than two-decade-long appeals process, the courts have shown a willingness to create special exceptions that apply only to Abu-Jamal.

One example of what might be called “The Mumia Rule” occurred in the Pennsylvania Supreme Court. The state’s top judges in 1986 overturned a death sentence in 1986 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 state’s top court, declaring that the prosecutor’s language had “minimize[ed] the jury’s sense of responsibility for a verdict of death,” ordered a new trial. Three years later in 1989, despite this precedent, the 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.”


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 stating the right of allocution is of “ancient origin” and any failure to permit a defendant to plead for mercy required 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 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.”

This flip-flopping on allocution, acceptable language for prosecutors and other legal precedents led Amnesty International to conclude in its 2000 report on Abu-Jamal’s case that the state’s highest court improperly invents new standards of procedure “to apply it to one case only: that of Mumia Abu-Jamal.”

Justice, that is to say, has not always been blind in this case, at least at the state court level.


Indeed, the Abu-Jamal case has always been as much about politics as it has been about law. During his sentencing hearing, Prosecutor McGill, over the strenuous objection of the defense, read from and questioned Abu-Jamal about a 12-year-old Philadelphia Inquirer article written about him when he had been just 15, in which he had quoted Mao Tse-tung as saying “power flows from the barrel of a gun.” Although Abu-Jamal made it clear in the actual article, and during questioning by the prosecutor, that he was using that line to refer to the power of the police in Philadelphia in the early 1970s, the prosecutor told jurors that the child’s words had referred to killing police.


Since the trial, the Fraternal Order of Police, the national police union, has openly lobbied hard for Abu-Jamal’s execution, endorsing judicial candidates who favor the death penalty, while opposing those who oppose it, and holding annual demonstrations supporting his death, and even working successfully to prevent Abu-Jamal from having his commentaries from prison broadcast on Philadelphia radio stations. On the other side, a movement condemning Abu-Jamal’s conviction and demanding his freedom or a new trial has spread around the globe.


Such political action has certainly played a role in the decisions made by Pennsylvania’s politicized judges, all of whom are elected and must periodically return to face voters. But the prevailing view among attorneys is that such political pressures play a lesser role in the federal court system, where judges are generally better qualified and are appointed for life, and particularly at the appellate level, where most judges remain until they retire or die.


One indication that the appellate court may not be so vulnerable to political pressure came in 1998, in a case brought by Abu-Jamal protesting the opening of his lawyer’s correspondence with him in prison. Prison authorities had opened his lawyers’ mail in 1995 and, learning of his defense strategy for an upcoming PCRA hearing, passed the news along to then Gov. Tom Ridge, who rushed through a death warrant. This meant Abu-Jamal was facing an execution date only weeks from the hearing—a situation Judge Sabo repeatedly used as an excuse for rushing the proceeding. The Third Circuit ruled that opening of inmates’ legal mail was illegal. The Third Circuit also ruled in Abu-Jamal’s favor in a case establishing his First Amendment right to write and publish from prison.


And so this case, which began one cold dark morning in December 1981, now moves to what could be the final confrontation.


However the three judge panel rules, history is likely to be made this Thursday in the legal showdown between Abu-Jamal’s attorney Robert R. Bryan and Assistant District Attorney Hugh Burns, and by Third Circuit Judges Scirica, Ambro and Cowen.

 

Dave Lindorff Source
 

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