Continued Delays In Jamal Case

by John Hayden

The 3rd Circuit Court of Appeals has been deliberating on Philadelphia's most notorious cop killing case since May of last year.

The highest court in the land just decided a case that may impact the intermediate federal appeals court's decision on Mumia Abu Jamal's appeal from the portion of Judge William Yohn's 2001 decision that denied the Death-Row prisoner's habeas corpus petition demanding a new trial on the basis of racial discrimination during jury selection.

Mumia Abu Jamal and his San Francisco lawyer, Robert R. Bryan, claim that the 1982 prosecutor, ADA Joseph Mc Gill, deprived the Black defendant of his Constitutional right to equal protection of the law because he'd used 10 of his 20 peremptory challenges to eliminate "qualified Blacks" from the jury that eventually found the Black defendant guilty of capital murder, and then voted for "death" rather than life imprisonment.

That's the so-called Batson claim.

In 1986 the US Supreme Court tried to address the insidious prosecutorial practice north and south of the Mason Dixon line whereby prosecutors would purposefully discriminate against Blacks accused of crime by eliminating fellow Blacks from the jury through the exercise of peremptory (no reason given) challenges.

In Batson . Kentucky (1986) 476 US 79 the prosecutor used four peremptory challenges to eliminate all four potential Black jurors, thereby subjecting the Black defendant to a trial by an all-white jury (which convicted Mr. Batson of burglary). The Supreme Court nullified the conviction and gave Mr. Batson a new trial.

In the brand new case, Snyder v. Louisiana No. 06-10119, the prosecutor used five peremptory challenges to eliminate all five potential Black jurors, thereby subjecting the Black defendant to a trial by and all-white jury (which convicted him of capital murder).

To compound the unfairness, when defense counsel questioned a peremptory challenge to a Black college student, the prosecutor gave the Judge an "unconvincing" and "implausible" explanation for the challenge. This compelled the U S Supreme Court to infer a "discriminatory intent."

Chief Justice Samual Alito, a conservative jurist appointed by a conservative Republican president, wrote the opinion that reversed Mr. Snyder's murder conviction, and granted him a new trial.

Question: Will the recent Supreme Court ruling help the incarcerated radio Philadelphia journalist to obtain a new trial from the 3rd Circuit (or later from the Supreme Court) on his racial discrimination in jury selection claim?

Answer: No one knows.

However, if the 3rd Circuit Judges do grant Mumia Abu Jamal a new trial on his Batson claim, they'll have to completely ignore several record based facts:

1) The Black defendant's Black defense counsel didn't register a single objection to a single one of the 10 peremptory challenges exercised by ADA Joseph McGill.

2) Thus, the trial Judge never had the opportunity to assess whether or not the state's explanation for each challenge was either "race neutral" or racially motivated.

3) In Judge Yohn's 2001 decision, the short description of each of the prosecutor's challenges to 1o potential Black jurors indicate on their face that they were race neutral.

4) Four of the eliminated Blacks could easily have been the basis of a challenge for cause (#15 - "Black, listened to Abu Jamal on the radio, opposed to death penalty;" #1 "Black, bias against police, listened to Abu Jamal on the radio;" #2 - "Black, strong feelings against death penalty; #7 Black, hesitant in answering questions, strong reservations about the death penalty). Any rational Judge would have eliminated all three individuals for lack of impartiality.

5) The other six potential Black jurors had either listened to the accused on the radio (#3, #5, #11,#13) or had a close family member who'd worked at Abu Jamal's radio station(#14), or had a hearing problem (#9). These were obviously racially neutral and not race- based reasons for the challenges.

6) The 1st and 2nd jurors intentionally selected by McGill were, like the accused murderer, Black.

7) The allegedly racially motivated prosecutor intentionally selected a total of four members of the defendant's race for the jury.

8) The defendant himself used a peremptory challenge to eliminate one of the four qualified Blacks that was acceptable to the prosecutor, and whom he wanted on the fact-finding panel.

9) When the racially mixed jury was sworn in, the prosecutor had five unused peremptory challenges left. If Abu Jamal's prosecutor, like Mr. Batson's and Mr. Synder's prosecutor, possessed a biased intention to racially discriminate, he would have used four of the five to eliminate the four Blacks he'd intentionally selected.

On the merits the 3rd Circuit should rule in favor of the prosecution, and the murder victim, Officer Danny Faulkner, whom Mumia Abu Jamal shot in the back and in the face in front of severral eyewitnesses over 26 years ago.

(John Hayden is the author of "Mumia Abu-Jamal: The Patron Saint of American Cop-Killers" which is available at Amazon.com and is currently working on another book on the case titled "Mumia Abu Jamal - The Political Prisoner" which is to be published in late summer of this year. He is a former attorney, who has written numerous articles about Jamal's case for this site and appeared on NPR to speak on the case. To contact Mr. Hayden please email the antimove blog at sept27th2002@yahoo.com and we will forward inquiries to him)