Legal Update On Jamal's Case Part 1
The appeal papers were filed by both sides months ago.
After considerable delay the intermediate federal court, the 3rd Circuit Court of Appeals in Philadelphia, has finally scheduled the appeal for oral argument on Thursday, May 17th at 9:30 AM.
Oral argument is limited to 45 minutes.
The court will hear from ADA Hugh Burns on the prosecution's appeal from the portion of federal District Court Judge William Yohn's Dec. 18, 2001 decision which vacated or nullified the unanimous verdict or sentence of "death" reached by the racially mixed jury (two (2) Blacks, ten (10) non Blacks) on Saturday, July 3, 1982 in Courtroom #253 in the Philadelphia Court of Common Pleas.
The central legal issue to be decided after the oral argument is whether or not Judge Yohn's use of a 1988 United States Supreme Court principle was correct, i.e. properly applied in declaring that the typed 1982 Penalty Verdict Sheet, coupled with the trial Judge's oral instructions to the jury on "mitigating circumstances" violated the federal constitution.
A subtext of that issue is whether or not it was proper for Judge Yohn to retroactively apply a 1988 U S Supreme Court principle to a 1982 capital murder case when it's obvious that neither the trial Judge, the prosecutor, nor the defense attorney could possibly have been aware of the unknown future High Court decision, and, thus were completely unable to correct any defect in the Penalty Verdict Sheet or in the trial court's oral instruction to the racially mixed jury which unanimously decided that that one "aggravating circumstance" (murdering a policeman in the line of duty) was not outweighed by one "mitigating circumstance" (Abu Jamal's lack of a substantial criminal conviction record)
The federal appeals court, which usually consists of three (3) appointed (not elected) Judges, will also hear the cross appeal of the remorseless convicted cop killer from the portions of the same December 18, 2001 lower court decision which:
A) Ruled that the habeas corpus petitioner and his lawyers had failed to demonstrate a prima facie case of racial discrimination by the state's prosecutor, ADA Joseph McGill, in the prosecutor's use of 11 peremptory challenges of venire persons (potentials jurors) who, like the defendant, were members of the same distinct racial group, i.e. Black, or African American.
Prima facie means at first glance.
If Abu Jamal wins on this issue, one of two things will follow.
The 3rd Circuit panel can either nullify the Friday, July 2, 1982 unanimous guilty verdict of the same racially mixed jury - "guilty of 1st degree murder," and send the case back to the state court for a brand new trial.
Or, the court can order federal Judge Yohn to hold a hearing in federal court to determine whether or not the transcript of the early June 1982 jury selection proceeding (the voir dire examination of the jury) contains any evidence that some, or any, of the 11 peremptory challenges indicates racial bias on the part of the prosecution.
In 1989 a state appellate court, the Pa. Supreme Court, already ruled unanimously (i.e. without a single Judge filing a dissenting opinion) that:
We have examined the prosecutor's questions and comments
during voir dire along with those of the Appellant (Abu Jamal)
and his counsel (African American defense attorney Anthony
Jackson), and find not a trace of support that the use of
peremptories was racially motivated.
In 1998 the same state court - with somewhat different personel examining the 1982 trial record - made the exact same ruling. (See: Mumia Abu Jamal-The Patron Saint of Cop Killers (2006 Edit.) p. 594 in Chapter 16 - "2nd State Appeal Defeat.)
In 2001 federal Judge Yohn examined the same 1982 voir dire transcript.
He found no evidence whatsoever of racial bias by the prosecutor in his exercise of peremptory challenges against the 11 Blacks eliminated from serving on the Balck defendant's capital murder jury, and affirmed both state court decisions by ruling that:
Petitioner (Abu Jamal) points to no improper statement
or question by the prosecutor during jury selection.
(See: Mumia Abu Jamal-The Patron Saint of American
Cop Killers (2006 Edit) at p. 610 in Chapter 17 - "Death
Penalty Vacated!! Federal Habeas Corpus Proceeding.")
The 2nd Issue to be determined by the 3rd Circuit is whether the 1982 prosecutor's argument in summation violated the defendant's constitutional rights, and thereby requires a new trial.
In his summation former ADA Joseph McGill argued to the jury that "there would be appeal after appeal" if the jury voted guilty of 1st degree murder.
Abu Jamal's San Francisco lawyer, Robert Byran, a death peanlty specialist claims that this deprived Mumia Abu Jamal of the constitutional right of Due Process of Law.
If the remorseless cop killer wins on this issue, the case won't go back to the lower federal court (the District Court).
It will go back to the state court - the Court of Common Pleas - for a new trial.
Abu Jamal will most likely remain in jail pending the new trial, although there's an outside chance that he'll be released on bail on te ground that he's spent the last 24 years in prison due to a supposedly unconstitutional guilty verdict.
If the prosecution loses on this issue, the DA's Office will seek to have the U S Supreme Court review the 3rd Circuit's ruling, and there';s a substantial chance that an application for a writ of certiorari to review the 3rd Circuit's ruling will be granted.
Then, if the writ is granted, a majority of the nine (9) justices on the High Court will have the last word in this absurdly long drawn out capital murder case.
Conversely, if Mumia Abu Jamal loses on this "appeal after appeal" issue (or on the Batson racial discrimination claim, or on the other issue, Abu Jamal will file his 4th petition for writ of certiorari to review the ruling of the 3rd Circuit Court of Appeals and the adverse ruling of the 1998 Pa. Supreme Court.
The convicted cop killer lost all of his previous U S Supreme Court petition for review, but no one knows how the High Court will rule if he tries again.
The 3rd issue to be determined by the three Judge panel on the 3rd Circuit is whether the 1995 denial of Abu Jamal's petition for a new trial by Judge Albert Sabo should be nullified on the ground of racial and other bias by the hearing Judge, the same Judge who presided over the trial, the same one whom Abu Jamal threatened to kill at the May 25, 1983 formal imposition by the Judge of the racially mixed jury's July 3, 1982 death sentence.
If the Death-Row prisoner wins on that issue, the case will be remaned to the state trial court for a new hearing, and the DA's Office will petition the U S Supreme Court for writ of certiorari to review that possible ruling.
If Abu Jamal loses on that issue he'll file still another petition with the same court.
In short, there are several possibilities:
1. The 3rd Circuit could "affirm" in toto (i.e., entirely) the several rulings of the Dec. 18, 2001 District Court (Judge Yohn) which denied Abu Jaml's demand for a new trial but granted his demand to nullify the racially mixed jury's sentence of death and ordered a new penalty trial, and if one isn't conducted by the prosecution, the sentence will automatically be "life in prison without the possibility of parole."
That would insure that the remorseless cop killer will - absent a jail break - spend the rest of his life behind bars in a maximum security prison somewhere in bucolic Pa.
It will also be the end of the "Free Mumia! Free All Political prisoners!" charade - except of course for the Looney Tunes in MOVE.
Conversely, if the 3rd Circuit affirms (upholds) the lower federal court's denial of a new trial, but reverses Judge Yohn's ruling which nullifed the jury's death senetnce, then the case will be remanded back to the state court for a new penalty hearing. There a new jury will decide whether or not Abu Jamal will be sentenced to death or given a sentence of "life without parole."
If there is such a remand, it will up to the surviving brothers, sister, and widow (Maureen Faulkner) of Abu Jamal's 12/9/81 murder victim to inform the DA's Office whether or not the family wants to go through the pain of a lengthy, completely unpredictable penalty hearing, where, even if the jury votes for "death," the convicted cop killer will file still another state appeal to the Pa. Supreme Court (it will be his fifth), followed by still another US Supreme Court petition for a writ of certiorari, another petition to the District Court for a writ of habeas corpus, another appeal to the 3rd Circuit Court of Appeals, and - believe it or not - another petition to the US Supreme Court for a writ of certiorari to review all of the foregoing procedings.
That will take several years.
2. If the 3rd Circuit rules partially in Abu Jamal's favor on the Batson (racial discrimination) claim, the murder case will either be remanded to the federal District Court for an evidentiary hearing to decide whether or not there's a racially neutral reason for each of the 1982 prosecutor's 11 peremptory challenges.
Or, it can completely rule in Abu Jamal's favor, state that he's shown a prima facie case of racial discrimination in the exercise of some or one of the 11 peremptory challenges, and then rule that the state has failed to show a racially neutral reason for one or more chalenges, and then nullify or set aside the 1982 "guilty of 1st degree murder" verdict, and send the case back to the Court of Common Pleas for a new trial.