(What follows is an article from Jamal apologist Dave Lindorff concerning the latest twist and turns in Jamal’s attempt to evade justice. My response to his distortions of fact are made in italics.)
Abu-Jamal's Appeal Moves into its Final Stage
by Dave Lindorff
The appeal of Mumia Abu-Jamal, the Philadelphia-based African-American journalist who has spent a quarter of a century on Pennsylvania’s death row after being convicted of killing a white Philadelphia police officer, is finally moving into its critical phase, in the federal Court of Appeals. (At the time of the killing of Officer Faulkner, Jamal was more taxi cab driver and MOVE adherent than journalist
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 challenge Abu-Jamal’s conviction for the 1981 shooting death of Officer Daniel Faulkner. (More so, these claims make have to do with supposed procedural errors and allegations of bias as opposed to a direct assault upon the core facts of the prosecutions case. Facts that Jamal’s revolving door of defense attorneys have never been able to sufficiently address as the decades have passed and millions of dollars have been spent.)
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."
(Here, either Lindorff is either willingly or unwittingly distorting the truth. The quotations from McGill that Lindorff is referencing occurred after Jamal was found guilty thereby nullifying Lindorffs or Attorney Bryan’s assertion of “guilt-innocence determination” diminish the role of the jury. At the point where Prosecutor McGill informed the jury that Jamal would have “appeal after appeal” Jamal had already been found guilty. And, as history has proven, McGill’s assertion has been born out as Jamal has literally had appeal after appeal and is still pursuing them long after the 1982 verdict and sentencing has been handed down.
This fact coupled with the rarified use of the death penalty in Pennsylvania prove McGill’s statements to be far more prescient a few decades ago than do Attorney Bryan’s and journalist Lindorffs’ do today
As Bryan writes in his brief, "By saying [that the jury decision] would not be final and telling the jury that a guilty verdict would be reviewed in `appeal after appeal,' the prosecutor incorrectly advised the jury that their role and responsibility was less than it was." This, he argues, "deprived Mr. Abu-Jamal of his right to trial by jury because unlike the jury guaranteed by the Constitution, his jury was told that they were not the final fact-finders." As he notes, "The presumption of innocence and the requirement of proof beyond a reasonable doubt are grounded upon the idea that doubts should be resolved in favor of the accused and acquittal." (Again Lindorff follows the pattern of falsehood and wanders into the world of legal subjectivity and interpretation, all the while ignoring the facts of the case which point directly and without hesitation towards Jamal’s guilt. It is also worth pointing out at this point that while many may disagree with Attorney Bryan’s advocacy on behalf of Jamal, that he is doing his job, which is to essentially to spin the facts to the benefit of his client. If you don’t like it than your quarrel is with the adversarial system of justice and not Bryan or other defense attorneys. Lindorff on the other hand is a political animal whose support of Jamal is rooted in his own personal political proclivities and are not based upon an empirical acknowledgment of the facts of the case.)
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.
(What Lindorff fails to mention is that Jamal played a role in the placing of every single juror for his trial. To the extent that he himself even struck a black juror. Lindorffs also confidently or deliberately forgets to mention that Prosecutor McGill accepted at least four blacks for the jury, one of which was the aforementioned black juror who was struck by Mumia.Factually speaking, there is of course no way to tell how many of the people on the panel of prospective jurors was black, or how many of them were rejected by Jamal. It is also a fact that African Americans are by percentage are less likely to support capital punishment and are therefore excluded by Pennsylvania law to be jurors on a case that could result in such a penalty. While the ethicacy of this policy is open to debate, the fact remains that in 1982 it was a reality and likely affected the ultimate makeup of the jury that heard Jamal’s case.
What Lindorff also fails to mention is the fact that The Supreme Court of Pennsylvania has twice reviewed the case files in order to establish whether Prosecutor McGill acted with racially discriminatory intent. On both occasions the court sided with the prosecutors.)
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.) (Here Lindorffs merely assumes what he should have to prove, which is precisely why the Baldus study failed to move the court for relief. While the statistic of the Baldus report are compelling to the point they should be studied and followed up on, they are not reason alone to grant Jamal a new trial. The McMahon training tape Lindorff mentioned is abhorrent as it is candid and if there was something of validity within Bryan’s appeal this would be it. And if it can be proven that jurors on Mumia’s case were stricken during jury selection because of their race than I would be the first to call for a new trial.
Not that I believe that a new trial would do anything but affirm what those who have studied the case already know, and that is Jamal’s clear-cut guilt, but when it comes to infringement of constitutional rights than I believe it best to err on the side of caution.)
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 selecting, that he was going to help the prosecution "fry the nigger," 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.'" (Now Lindorff raises the issue of the alleged racist utterances of Judge Sabo. Curiously enough this statement did not come to light until after Sabo’s death. Also, there is only one person to have claimed to have heard Sabo’s bigotry, Terri Carter. Mrs. Carter than a court stenographer is now a leftist radical and had been for some years before coming forward with her revelation. The lack of corroboration to the alleged statement coupled with the many years of silence on Carter’s part virtually ensure that no appellate body will allow it to be used as a cause for Jamal to receive a new trial.
What I find personally interesting about Terri Carter and her story is how Jamal’s supporters have embraced her story without question or consideration. This, while being completely dismissive of the three witnesses who claim to have heard Jamal confess. It is this kind of crass arrogance that has stoked the ire of Philadelphians for so many years as the “Free Mumia” movement presses it’s case throughout the world.
I also find it interesting that Lindorff would be so careless as to quote the Philadelphia Inquirer which has long held the editorial position that Mumia is guilty.)
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." (The Philadelphia DA’s office has worked to see that the sentence handed down by Jamal’s jury is carried out, which is their responsibility. This is done because Jamal quite clearly shot down Daniel Faulkner in cold-blood and not because of some kind of “nit picking” animosity.)
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. (Here it is not so much what Lindorffs says but what he did not say that is important. Jamal has maintained his innocence as far as the charges against him go, but it took him till May of 2001 to actually get around to denying that he shot Officer Faulkner. This denial however, raises more problems for Jamal than it solves.
First of all he fails to make any mention of the handgun he was in possession of the night of the murder, he also fails to mention hearing the shot that wounded him, and perhaps most importantly his re-counting of events runs counter to that of the other eyewitnesses with the single exception being Jamal’s own brother.)
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. (It is worth pointing out that if anything, Jamal’s case shows how the judicial system, despite it’s flaws, is dedicated to preserving individual rights. Lindorff’s oblique reference to the detainees at Guantanamo having something to do with Jamal’s case is absurd at best and a cheap and cynical oversimplification at worst.)
Dave Lindorffs is author of "Killing Time: An Investigation Into the Death Penalty Case of Mumia Abu-Jamal" (Common Courage Press, 2003).