Mumia Case: The Final Showdown


Richard Moore

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The Final Showdown
Mumia Case Reaches Its Climax

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

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

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 

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.

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 

Dave Lindorff is the author of Killing Time: an Investigation into the Death Row
Case of Mumia Abu-Jamal. His n book of CounterPunch columns titled "This Can't 
be Happening!" is published by Common Courage Press. Lindorff's newest book is 
"The Case for Impeachment",

co-authored by Barbara Olshansky. He can be reached at: •••@••.•••

LINN WASHINGTON, Jr. is a columnist for the "Philadelphia Tribune" and is an 
associate professor of journalism at Temple University.

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