Mumia Abu-Jamal Legal Update March 2009

By John Hayden

After decades of legal appeals, the case of Mumia Abu-Jamal ambles onwards. The convicted murderer is asking the U.S. Supreme Court to nullify his 1st degree murder conviction on the ground of alleged "racism" in the June 1982 jury selection process, and give him a new trial. This comes twenty seven years after the ex-Black Panther shot a 25 year old cop in the back and in the face in front of one Black and three non-Black eyewitnesses on a public street in downtown Philadelphia. For their part, the prosecution is asking the SCOTUS to deny that request, to continue to uphold the 7/2/82 racially mixed jury’s "guilty" verdict, and to reinstate the same jury’s unanimous 7/3/82 sentence of death. The latter was judicially nullified on 12/18/01 by a federal habeas corpus Judge, and continues to be nullified by an intermediate appellate court, the 3rd Circuit Court of Appeals.

Both petitions for a writ of certiorari (in essence permission to appeal to the SCOTUS from a lower court’s ruling) are pending.

The Future

For a host of reasons the SCOTUS will likely decide to review this capital murder case because. First of all, the self styled "political prisoner" received a dissenting opinion on the "racism" issue by one liberal Judge on the 3rd Circuit despite the fact that every state Judge (and the 2001 federal habeas corpus Judge) who reviewed the issue at hand ruled that Abu Jamal had failed to demonstrate a prima facie case of racial discrimination by the 1982 trial prosecutor, ex ADA Joseph McGill.

The High Court may decide to review Abu Jamal’s "racism" in jury selection claim to clarify its own jurisprudence on this significant Batson (Batson v. Kentucky (1986) 476 US 79) racial discrimination issue. It may wish to clarify the law by deciding whether the majority opinion (two 3rd Circuit Court Judges who ruled against the "racism" claim) was right, or whether the third Judge who dissented on that issue rightly followed the High Court’s precedents on the "racism" in jury selection issue.

According to the recent legal papers filed by ADA Hugh Burns, Chief of the Philadelphia District Attorney’s Appeals Bureau, the 3rd Circuit’s unanimous March 2008 decision (which upheld the lower federal court’s December 18, 2001 ruling nullifying the jury’s unanimous 7/3/82 "death" verdict) is contrary to the rulings of other intermediate federal appeals courts on the same Batson issue.
That issue is whether or not the oral instructions of the so-called "Hanging Judge"(the late Albert Sabo), combined with the printed instruction sheet, caused "a reasonable likelihood" that the two Blacks and the 10 non-Blacks who voted for "death" may have erroneously thought that all 12 had to unanimously decide that a potential mitigating circumstance existed before they reached the ultimate question for their decision. That’s whether the sole aggravating circumstance (murdering a policeman in the performance of his duties) outweighed any mitigating circumstance(s).

In my view, both as a crime-writer and a former criminal appeals lawyer with a modicum of experience in the SCOTUS, I think the Chief Justice and the other eight Associate Justices would be passing up a unique opportunity to clarify the Court’s jurisprudence on the Batson issue.

Plus, if the Philadelphia DA’s Office is right in its interpretation of other federal appeals courts’ decisions, this capital murder case presents the High Court with an opportunity to clarify its jurisprudence on what qualifies as a constitutionally proper trial Judge’s instruction to jurors on mitigating circumstances in a capital murder case.

It would be grossly irresponsible for the highest court in the land to allow a jury’s death sentence to be upheld in other parts of the United States governed by other Circuit Courts of Appeal, but to allow a nullification a jury’s death sentence in the states contained in the 3rd Circuit Court of Appeals when the trial Judge’s instructions to the juries in all of these states are virtually identical in language to this 1982 Pa. murder case.

Unfortunately the Chief Judge and his eight colleagues are already overburdened with work because each year about 1,000 lawyers file petitions requesting review of state appeals courts and federal appeals courts rulings. Plus, the grossly litigious Mumia Abu Jamal has already been denied SCOTUS review of his various phony claims of legal error at the trial and state appeal level four times.
The law clerks who will review the "political prisoner’s" present 5th certiorari petition may be less than enthusiastic when they review his final one and make their recommendations to their black-robed bosses.

In short, it’s a coin toss as to whether Jamal is granted review or whether the prosecutor’s office is granted review of the lower federal courts’ rulings.

SCOTUS Procedure

If the appropriate number of Justices in Washington, D.C., vote to review this 26 year old murder conviction the case will be set down for argument sometime later this year. Another forest full of trees will be cut down to supply paper for Abu Jamal’s retained lawyers and for the NAACP Legal Defense Fund lawyers to prepare and file briefs claiming "racism, racism, racism," and the "Free Mumia! Free All Political Prisoners!" charade will continue. The usual suspects – MOVE cultists, various far-left groups, and other Mumiacs - will loudly demonstrate outside the stately SCOTUS building in the nation’s capital, and the transparently phony "racism, racism, racism" propaganda crusade will march onward like the proverbial Energizer Bunny beating the drum for "the framed-up and railroaded" Death-Row prisoner.

Alternatively, if the petitions of both post conviction litigants are summarily denied, the mellow voiced murderer of 25 year old Danny Faulkner will be entitled to a new jury trial on the penalty for his crime in Philadelphia (unless the poor Judge assigned to the case orders a change of venue). Those 12 new jurors will have to decide the same issue that 12 racially mixed jurors were presented with over 26 years ago: Does the convicted murderer who bragged that he’d "shot the motha fuckah" and hoped "he dies" deserve life imprisonment without parole, or a needle in his gun arm? If the jury votes "life," than that’s it. The gun owning radio journalist will be released from Death-Row at Greene S.C.I. He’ll spend the rest of his life in the general prison population.

Conversely, if the jury unanimously votes "death," it’ll be “game on” for team Jamal. The convicted murderer will have access to the same time consuming rights he had on May 25, 1983 when Judge Albert Sabo implemented the July 3, 1982 jury’s death sentence by sentencing the "political prisoner" to death, and the "peaceful law abiding" radio journalist threatened to kill the elderly jurist.
The incredibly absurd state and federal law gives Abu Jamal an appeal as of right to the highest state court – the Pa. Supreme Court – a one shot federal habeas corpus petition to a federal District Court Judge, an appeal as of right to the 3rd Circuit of Appeals, and a 6th petition to the SCOTUS asking it to review the decisions of the lower courts.

JOHN HAYDEN

(Author: Mumia Abu Jamal-The Patron Saint of American Cop Killers (2006)
and
Mumia Abu Jamal- The "Political Prisoner" (2009)
To be published later this year after the Supreme Court of the United States finally decides this 27 year old travesty of delayed American Justice)