____________________
...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
Burns¹ arguments. Judging from their challenging questions
to Burns, and their generally favorable questions to
Abu-Jamal¹s attorneys, it seemed likely that they would, in
the end, uphold Yohn¹s decision.
If they do, Abu-Jamal¹s death sentence would be lifted once
and for all.
____________________
Original source URL:
http://www.thiscantbehappening.net/
Saturday, May 19, 2007
Mumia Case on Hold as Appellate Judges Deliberate
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-Jamal¹s 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-Jamal¹s appeal as a ³friend of the court.²
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-Jamal¹s
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 Yohn¹s
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 Burns¹ arguments.
Judging from their challenging questions to Burns, and their generally favorable
questions to Abu-Jamal¹s attorneys, it seemed likely that they would, in the
end, uphold Yohn¹s decision.
If they do, Abu-Jamal¹s 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-Jamal¹s trial, said the DA¹s
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 today¹s 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 didn¹t even attempt to bring in
witnesses to offer mitigating evidence against a death sentence.
A definitive end to Abu-Jamal¹s death sentence, even if his conviction remained
in place or on appeal, would mean a major change in his status. For one thing,
the DA¹s 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 state¹s
super-max death row outside Pittsburgh.
On the conviction issues, the court and Abu-Jamal¹s 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-Jamal¹s supporters in the
spectators¹ gallery. Reading from the court transcript, Bryan noted that McGill
had said, ³If the court pleases, the two black jurors may know him.² (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 didn¹t 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-Jamal¹s, 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 Rendell¹s
two terms as Philadelphia district attorney, when the man who is now
Pennsylvania's governor was McGill¹s boss, the DA¹s 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 court¹s 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-Jamal¹s 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-Jamal¹s
trial, and by the fact that documentary scientific evidence of the Philadelphia
prosecutor¹s systematic rejection of black jurors did not come to light until
after 1997, after Abu-Jamal¹s state appeal had been exhausted.
At least one judge, Ambro, seemed clearly sympathetic with Abu-Jamal¹s 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 ³might have been² majority African-American, ³in which case the
prosecutor¹s peremptory challenges might be seen as having been biased against
whites.² 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 ³almost
inconceivable² 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-Jamal¹s 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 ³not be final² because Abu-Jamal would
have ³appeal after appeal,² 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, ³Isn¹t saying that undermining a
defendant¹s right to a fair trial?²
If Cowen took his own question seriously--and feels that telling jurors that
their judgment isn¹t really final, could undermine the concept of ³proof beyond
a reasonable doubt²--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 ruling¹s far-reaching implications).
There was no discussion of Abu-Jamal¹s 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 doesn¹t 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 ³Free Mumia²
signs, staged a spirited demonstration. Inside the courtroom, Abu-Jamal
supporters filled most of the seats reserved for spectators. Near the front sat
Officer Faulkner¹s 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 courthouse¹s main
entrance.
Prosecutor McGill was also in attendance.
8:01 am pdt
Tuesday, May 15, 2007
Justice System on Trial as Mumia Case Reaches Climax
(This article was written by Dave Lindorff and by Linn Washington, a columnist
with the Philadelphia Tribune.)
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-Jamal¹s 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 jury¹s
sense of responsibility for their verdict by telling them that a guilty verdict
would ³not be final² since there would be ³appeal after appeal.²
The DA¹s office, meanwhile, has appealed a 2001 decision by Federal District
Judge William Yohn overturning Abu-Jamal¹s death sentence‹a ruling that if
sustained, converts Abu-Jamal¹s 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-Jamal¹s 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 city¹s 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 Philadelphia¹s 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 McGill¹s clearly inappropriate
summation to the jury, in which he essentially told them to forget about ³proof
beyond a reasonable doubt,² 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 judge¹s 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 Pennsylvania¹s 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 trial¹s 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 Yohn¹s revocation of Abu-Jamal¹s
death sentence, which was well reasoned and based upon solid US Supreme Court
precedent, the DA¹s office is making the effort, claiming that the precedent
doesn¹t apply in his case.
In fact, over the course of Abu-Jamal¹s 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 ³The Mumia Rule² occurred in the
Pennsylvania Supreme Court. The state¹s top judges in 1986 overturned a death
sentence in 1986 where McGill, the same prosecutor in Abu-Jamal¹s 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-Jamal¹s
case. The state¹s top court, declaring that the prosecutor¹s language had
³minimize[ed] the jury¹s sense of responsibility for a verdict of death,²
ordered a new trial. Three years later in 1989, despite this precedent, the
Court reversed itself, though, upholding Abu-Jamal¹s conviction. Eleven years
later, Pennsylvania¹s highest court reversed track again, barring such language
by prosecutors ³in all future trials.²
Another example of this judicial ³special handling² where Abu-Jamal¹s 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-Jamal¹s conviction in March 1989, the Pennsylvania Supreme Court
issued a ruling stating the right of allocution is of ³ancient origin² and any
failure to permit a defendant to plead for mercy required reversal of sentence.
Abu-Jamal¹s 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 ¹82 trial. The state¹s high
court, however for the first time in its history ruled that the ³right of
allocution does not exist in the penalty phase of capital murder prosecution.²
This flip-flopping on allocution, acceptable language for prosecutors and other
legal precedents led Amnesty International to conclude in its 2000 report on
Abu-Jamal¹s case that the state¹s highest court improperly invents new standards
of procedure ³to apply it to one case only: that of Mumia Abu-Jamal.²
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 ³power flows from the barrel of a
gun.² 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 child¹s words had referred to killing police.
Since the trial, the Fraternal Order of Police, the national police union, has
openly lobbied hard for Abu-Jamal¹s 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-Jamal¹s 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
Pennsylvania¹s 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 lawyer¹s correspondence with him in prison. Prison authorities had opened
his lawyers¹ 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 inmates¹ legal mail was
illegal. The Third Circuit also ruled in Abu-Jamal¹s 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-Jamal¹s attorney Robert R. Bryan and Assistant
District Attorney Hugh Burns, and by Third Circuit Judges Scirica, Ambro and
Cowen.
--
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