Abu-Jamal Case Goes to Third Circuit

December 7, 2006 (2 articles)

Abu-Jamal Case Goes to Third Circuit; Prosecutor Admits Jamal Had No "True
Defense"
Pennsylvania

by Dave Lindorff, BuzzFlash

It's been 25 years now since Philadelphia Police Officer Daniel Faulkner was
shot dead in a Center City, Philadelphia red-light district. Since then,
Faulkner has become a rallying point for the nation's death penalty
advocates. It's been 25 years, too, since the man convicted of killing
Faulkner, Philadelphia radio journalist and former Black Panther Mumia
Abu-Jamal, was arrested for the crime at the scene. Since July 1982,
Abu-Jamal has been in solitary confinement on Philadelphia's death row, from
which lonely spot he has become a world-famous prison journalist, and a
rallying point for those opposed to capital punishment.

The debates over Abu-Jamal's guilt or innocence have raged now for an
astonishing quarter of a century, through the presidencies of Ronald Reagan,
George H.W. Bush, Bill Clinton and George W. Bush. Battles have raged, too,
within the loose-knit group of people who have backed Abu-Jamal, between
those who argue that he is an innocent man, a political prisoner condemned
for his politics, and those who simply argue that he never received a fair
trial. Politicians at the local, state and even federal level, many without
any real knowledge about this complex case, have prostituted themselves by
pressing for Abu-Jamal's execution, while others, sometimes equally ignorant
of the facts, have lionized him and honored him with honorary citizenships
and street names.

Whatever one's views on this case, however, the reality is that it for the
first time in 25 years, Abu-Jamal is finally going to get a chance in the
second highest court in the land to make the case that his 1982 trial was
fatally tainted by unconstitutional error, judicial bias, race-based jury
selection and prosecutorial misconduct. The reality also is that the Third
Circuit Court of Appeals, which will be hearing arguments on Abu-Jamal's
appeal early next year (barring any unanticipated delays), could conceivably
end up ordering a new trial for Abu-Jamal -- a trial that, because of better
defense counsel, a changed political climate, shifting demographics, the
deaths of some witnesses, and the likelihood of new defense witnesses, would
most likely end up setting him free, or having him released for time served.
At the same time, the same three-judge panel hearing this appeal will also
be considering a counter appeal by the Philadelphia District Attorney's
office, which seeks to overturn a lower Federal District Court decision
which five years ago tossed out Abu-Jamal's death sentence. So at the same
time that the Third Circuit could end up giving Abu-Jamal a new chance to
prove his innocence, or at least to leave prison a free man, it could
ironically also end up sending him back onto death row and to a date with
the needle.

Let's look at the DA's appeal first, since it's fairly simple.

In 2001, Judge William Yohn, a former Montgomery County state judge
appointed to the federal bench by the first President Bush, found that
Abu-Jamal's death sentence had been constitutionally tainted. He ruled that
the instructions of the trial judge, the late Albert Sabo, and the jury
polling form used by Sabo, were both confusing and could have led jurors to
mistakenly assume that they could not consider any mitigating circumstances
(which might argue against a death sentence) unless all 12 members of the
jury agreed that such a mitigating factor existed. In fact, as Judge Yohn
noted in his decision, the law allows any one juror who finds such a
mitigating factor (for example, being a devoted father to a young child, or
having a difficult childhood) to consider that factor in deciding whether or
not to vote for a death penalty. Since the law requires a unanimous vote for
death in order for a capital sentence to be imposed, this means that any one
juror should be able to take execution off the table if she or he thinks
there is a sufficiently mitigating factor.

If the DA can convince at least two of the three appellate judges that Yohn
was wrong in his ruling, Abu-Jamal would be put back on death row, with his
only remaining hope of avoiding execution being the US Supreme Court -- or a
reversal of his conviction itself. Even if the Third Circuit panel supports
Yohn's overturning of the death sentence, however, Abu-Jamal could still end
up facing execution. This is because once an Appeals Court decision is
rendered, the DA will have 180 days to decide whether to seek a new trial on
the sentence alone. If that were to happen, a new jury would have to be
impaneled to hear arguments for and against execution, with the alternative
being life in prison without possibility of parole.

Yohn's vacating of Abu-Jamal's death sentence was well-reasoned, and it
seems unlikely that the higher court would reverse it, but this case has
been full of surprises from the start -- with most of them going against
Abu-Jamal -- so it cannot be ruled out.

Meanwhile, however, this past year there was a surprise ruling by the Third
Circuit that went Abu-Jamal's way and that improved his chances of winning a
new trial by 200 percent. That surprise came in the form of an announcement
that Abu-Jamal would be allowed to add two additional grounds for appeal of
his conviction to the one, which Judge Yohn had already certified for
appeal.

Under existing law and federal court rules, a capital defendant is only
guaranteed the right to appeal to the federal appellate court a ruling that
a lower federal district judge has "certified" for appeal. Petitions to
consider other issues may be made to appellate judges, but those appeals
judges have no obligation to grant a hearing on them. In Abu-Jamal's case,
Judge Yohn rejected all 20 of his appeals of his conviction. But on one of
those claims -- the argument that his jury had been systematically stripped
of qualified black jurors by the prosecutor's use of peremptory challenges
(challenges for which no reason has to be given) -- the judge seemed
troubled enough by the evidence presented that he certified an appeal to the
Third Circuit Court of Appeals.

Abu-Jamal's appellate attorney, Robert R. Bryan of San Francisco, went ahead
and pursued several other rejected grounds for appeal, though, and was
rewarded last December with a decision by the Third Circuit to hear appeals
arguments on two other grounds. One of these was the claim that prosecutor
Joseph McGill, near the trial's end during his summation to the jury, had
improperly led jurors to believe they needn't worry about the possibility of
wrongfully convicting the defendant. Turning the basic requirement that
jurors may only convict if they feel a case has been proven "beyond a
reasonable doubt," McGill instead urged Abu-Jamal's jury to go ahead and
vote guilty because their verdict would not be the last word. McGill, a
veteran prosecutor who clearly knew what he was doing, improperly assured
them, without any objection from the judge, that there would be "appeal
after appeal" of their verdict, which he argued therefore "may not be
final."

Federal courts have generally found unconstitutional such attempts to remove
jurors' sense of responsibility for the gravity of their decision. It is
hard to imagine how fair-minded appellate judges could allow such a blatant
undermining of the law to stand, and yet, there have been many examples of
appeals courts doing just this, and the Abu-Jamal case is a very politically
charged issue.

The other ground for appeal which the Third Circuit invited an appeal filing
on was the charge that Judge Sabo had been unconstitutionally biased against
the defendant both at the original trial and during the 1995 post-conviction
relief act (PCRA) hearing. A few years back, Abu-Jamal's defense team
discovered a court stenographer, Terri Maurer Carter, who said that in the
opening days of Abu-Jamal's trial, she, in the company of her own judge,
Richard Klein (currently a state Superior Court Judge), had overheard Sabo
say he would "help them fry the nigger." The alleged incident reportedly
occurred at the end of the day as Sabo was exiting the courtroom along with
his court clerk through the private "robing room" exit, just as Judge Klein,
then a civil court judge who was planning to borrow Sabo's courtroom for
evening hearings, and his stenographer, were entering the room.

Common Pleas Judge Pamela Dembe, in 2001, ruled that it wouldn't matter if
Sabo had uttered those words, "since this was a jury trial." Hers was a
bizarre decision, since even if jurors, not judges, render the verdict,
judges clearly do make critical decisions about the admissibility of
evidence, about the questions that may be asked of witnesses, and about how
trials are to be conducted, and it's common sense that a biased judge could
easily skew a trial against a defendant. But in any event, in a PCRA
hearing, where there is no jury, it is the judge alone who determines
whether new evidence is significant, what questioning will be allowed of
witnesses, and what subpoenas will be issued on behalf of the defendant.
Sabo's astonishing one-sidedness at that hearing was so blatant that it led
the Philadelphia Inquirer to editorialize at the time: "The behavior of the
judge in the case was disturbing the first time around -- and in hearings
last week he did not give the impression ... of fair-mindedness. Instead, he
gave the impression ... of undue haste and hostility toward the defense's
case."

Should at least two of the three appeals court judges considering this
argument find evidence of unconstitutional judicial bias, it would not lead
to an overturning of Abu-Jamal's conviction, but rather would more likely
lead to a new round of evidentiary hearings before a federal judge -- most
likely Judge Yohn. At such a hearing, Abu-Jamal would likely be given a
chance to recall and re-question witnesses whose testimony had either been
disallowed or interfered with by Judge Sabo. Abu-Jamal would probably also
be able to call new witnesses who have been discovered more recently, whose
testimony might undermine some of the earlier prosecution witnesses in the
case. It is possible there could also be recantations from some key
prosecution trial witnesses. (For example, there were reports back in 1995
that one of the prosecution's key eye-witnesses to the Faulkner shooting,
the cab driver Robert Chobert, had recanted his trial testimony, in which he
had testified that his cab directly behind Faulkner's parked squad car,
making him a direct witness to the shooting, and was instead saying that he
had been parked on another street, facing away from the incident. Sabo had
prevented this damaging line of questioning by the defense at the PCRA.)
Clearly such a federal court evidentiary hearing could pave the way for the
ordering of a new trial.

The third avenue of appeal of Abu-Jamal's conviction -- the one certified
for appeal by Judge Yohn in 2001 -- is perhaps his best shot at an
overturning of his conviction. This is the claim of racial bias in jury
selection -- an issue that even the current conservative Supreme Court has
been very sensitive to.

In Abu-Jamal's case, it is clear from the record that prosecutor McGill used
11 of his allotted 15 "peremptory" challenges to remove from consideration
11 black jurors who had met the standard of agreeing that that could vote
for a death penalty. (In capital cases, jurors must be questioned by defense
and prosecution, or by the judge, and any juror who states that she or he
could never vote for a death sentence may be summarily dismissed "for
cause," since such a juror, if impaneled, would be able to veto any death
sentence.) In the end, when jury selection was completed, Abu-Jamal wound up
with just three black and nine white jurors (ultimately reduced to two
blacks when one black juror was removed by the judge under questionable
circumstances). This in a city that was 44 percent black, and in a case that
involved the slaying of a white police officer by a black defendant, making
race a critical issue. While McGill has insisted that his reasons for
rejecting all those qualified black jurors had nothing to do with their
race, in fact both his own record and the record of the prosecutor's office
under then DA Ed Rendell (now Pennsylvania's governor), suggest otherwise.

Consider that between 1977 and 1986, McGill used peremptory challenges to
strike 74 percent of qualified African-American jurors from trials he
prosecuted, compared to only 25 percent of whites. Consider further that
under DA Rendell, the Philadelphia prosecutor's office overall, over the
same eight-year period, struck black jurors 58 percent of the time, while
striking white jurors only 22 percent of the time. This is on its face
damning evidence of a systematic policy of illegal race-based jury selection
on the part of both McGill and of the DA's office. Moreover, under existing
Supreme Court precedent, a defendant, to prove unconstitutional race-based
jury selection, does not even need to prove that there is a pattern of
discrimination -- only that there is evidence that race was a factor in his
specific trial. McGill's line of questioning during jury selection for this
trial makes it evident that such was likely the case. For example, black
jurors who were dismissed, not "for cause" but peremptorily, were frequently
asked by McGill if they had "listened to black radio," while white jurors
were never asked such a question. At one point, McGill also interrupted
Judge Sabo to observe that a black judge had entered the courtroom and
seated himself on the side of the visitor's seating area where Abu-Jamal's
supporters were. McGill said to the judge, "If the court pleases, the two
black jurors may know him." Since it was just as likely that the ten white
jurors might have known Judge Calvin Wilson, this was clear evidence that
McGill saw black jurors as being fundamentally different from white jurors."

Judge Sabo, it should be noted, studiously ignored McGill's outburst --
perhaps aware of how damaging they could be.

Although the above statistical evidence was submitted to Judge Yohn by
Abu-Jamal's defense team, the judge never even considered it, because he
confused and conflated several studies submitted by the defense, and
incorrectly concluded that neither the McGill jury statistics nor the
Rendell jury statistics covered the period of Abu-Jamal's trial. Because
Yohn rejected that evidence out of hand, he did not bother to review other
evidence of race-based jury selection specific to the trial. Yet in fact,
not only did the period of both those studies cover the period of
Abu-Jamal's 1982 trial; his trial was in fact a part of those statistics.

Should at least two of the three judges hearing the Third Circuit appeal
conclude that there was an attempt at racial exclusion underlying McGill's
peremptory challenges, they would have no alternative but to order a new
trial for Abu-Jamal. An alternative would be for the Third Circuit to send
the issue back to Judge Yohn, with instructions that he reconsider, based
upon all of the evidence submitted by the defense. Given that evidence,
there is a very good chance that in the end, Abu-Jamal could get a new
trial, with a jury that, in today's Philadelphia, would likely have four to
six African-American jurors on it instead of only two.

It seems clear that the coming hearing of Abu-Jamal's appeal before the
Third Circuit Court of Appeals, at which there will be oral arguments
presented by both sides, will be dramatic and possibly explosive. And since
any decision by the appeals court will lead, at a minimum, to a whole new
round of appeals, while some could lead to new hearings or to a new trial,
or penalty trial, it seems equally clear that this 25-year-old death penalty
case will be around for some time to come, as will the man who has spent
those 25 years -- including the last five during which his sentence has
technically been lifted -- in solitary confinement on Pennsylvania's grim
death row.

Meanwhile, those who continue to lobby tirelessly for Abu-Jamal's execution
-- especially Faulkner's widow Maureen and the Pennsylvania Fraternal Order
of Police, as well as Governor Rendell himself -- should take note of an
astonishing statement made by Abu-Jamal prosecutor McGill in a December 3
article in the Inquirer. McGill, now retired and a private attorney, who had
assured me in an interview for my book on the case (Killing Time), that it
had been "the strongest case" he'd ever handled, told the Inquirer reporter
that Abu-Jamal "could have been convicted of a lesser offense" had he waged
a "true defense."

It is well known that the Philadelphia District Attorney's office has had a
long history, stretching back at least to Rendell's two terms as DA, of
deliberately overcharging defendants in hopes of winning plea bargains, and
of deliberately seeking the death penalty even when it is inappropriate, in
order to be able to "death qualify" and screen out jurors who are opposed to
capital punishment (many academic studies have documented that pro-execution
jurors tend to be more pro-government and more inclined to convict than
jurors who object philosophically or on religious grounds to capital
punishment). Indeed many jurisdictions in Pennsylvania consider this tactic
-- still practiced under DA Lynne Abraham -- to be unethical.

McGill's statement suggests that this tactic may have been applied in
Abu-Jamal's case. It is also an admission by McGill that Abu-Jamal never had
a "true defense."

Now I know McGill claims that this is because Abu-Jamal himself screwed up
by insisting on being able to defend himself, but the truth is more
complicated. In fact, Abu-Jamal had hired an attorney, Anthony Jackson, whom
he thought was up to the task, but who in fact had never handled a death
penalty case, and who moreover had a drug habit (he was subsequently
disbarred for financial improprieties, allegedly related to drugs). When
Jackson began messing up, Abu-Jamal tried to get rid of him, but was not
allowed to do so by Judge Sabo, who seemed to relish the discord that he was
encouraging between the defendant and his counsel. What Abu-Jamal ended up
with was the worse of all possible worlds: an incompetent defense counsel,
but no right to represent himself either.

In America, the right to a fair trial is sacred. Is this the kind of
situation -- a defendant who did not have a "true defense" -- one that
anybody, including McGill, would want to see lead to a man's conviction and
execution?

---

Source : BuzzFlash (Philadelphia area journalist Dave Lindorff is the author
of "Killing Time: An Investigation into the Death Penalty Case of Mumia
Abu-Jamal," (Common Courage Press, 2003). His latest book, co-authored with
Barbara Olshansky, is "The Case for Impeachment," published in June by St.
Martin's Press)

http://www.buzzflash.com/articles/contributors/611

***

December 6, 2006

Pennsylvania

House debates resolution on French street name

By KIMBERLY HEFLING, Associated Press

House members debated a resolution Wednesday that would denounce a French
city for naming a street in honor of Mumia Abu-Jamal, who was sentenced to
death for shooting a Philadelphia police officer.

"We must stand together as one and send a strong message to the world that
cop-killers deserve to be punished, not to be celebrated," said Rep. Mike
Fitzpatrick, a Philadelphia-area congressman who authored the resolution.

The debate came a few days shy of the 25th anniversary of the shooting of
Daniel Faulkner, a 25-year-old officer shot after he pulled over Abu-Jamal's
brother on Dec. 9, 1981. Abu-Jamal, a one-time radio reporter and former
Black Panther, was convicted in 1982 and sentenced to death.

Abu-Jamal's writings and taped speeches on the justice system have made him
a cause celebre among Hollywood activists, foreign politicians and some
death-penalty opponents who believe he was the victim of a racist justice
system.

In December 2001, a federal judge overturned Abu-Jamal's death sentence but
upheld his conviction. Both sides have appealed that ruling, and Abu-Jamal
remains on death row in western Pennsylvania. Last year, the 3rd Circuit of
Appeals agreed to consider Abu-Jamal's appeal of his conviction.

In April, a street in St. Denis, a suburb in France just north of Paris, was
named after Abu-Jamal.

The bill would ask the French government to step in to change the street
name if St. Denis opted not to. A vote was expected on the resolution later
Wednesday.

Reps. John Conyers, D-Mich., and Bobby Scott, D-Va., said Congress should
focus on other issues.

"Let's agree to let the French government focus on the needs of its people
while we focus on the needs of hard working people here in America," Conyers
said.

Pennsylvania Reps. Allyson Schwartz, a Democrat, and Charles Dent, a
Republican, also spoke in favor of the resolution.

The police union in Philadelphia sent a representative to Washington on
Wednesday and was watching the vote closely, especially that of Rep. Chaka
Fattah, a candidate for Philadelphia mayor. The union promised to work
against Fattah in the 2007 Democratic primary, because he supports giving
Abu-Jamal a new trial.

---

Source : Associated Press

http://www.zwire.com/site/news.cfm?newsid=17558105&BRD=2212&PAG=461&dept_id=
465812&rfi=6

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