Mumia's lawyer responds to DA
April 17, 2007
by Hans Bennett, Indybay
In this interview, San Francisco attorney Robert R. Bryan responds to the
recent move from the Philadelphia DA requesting that the entire Third
Circuit Court recuse itself from Mumia's case.
Abu-Jamal Attorney Responds to Philly DA
----Is the DA afraid the Third Circuit will grant a new trial?
Hans Bennett interviews Abu-Jamal attorney Robert R. Bryan
As reported in two recent Associated Press articles,
( http://cbs3.
http://www.iht.
php )
the Philadelphia District Attorney has filed a motion asking the entire 3rd
U.S. Circuit Court of Appeals to recuse itself from black death-row
journalist Mumia Abu-Jamal's case on grounds that Gov. Ed Rendell, whose
wife serves on the court, was district attorney during Abu-Jamal's 1982
trial. The DA argues that if the court rules unfavorably for Abu-Jamal, the
defendant could then argue that the ruling was a result of bias from the
court, and as the Associated Press wrote, the DA allegedly "wants to leave
Abu-Jamal no grounds for any future appeal."
Assistant District Attorney Hugh J. Burns Jr. wrote in his motion that since
"Mr. Rendell was the elected district attorney at the time in question, and
so would have been responsible for the supposed 'routine' racially
discriminatory practices of Philadelphia prosecutors, Abu-Jamal's
accusations necessarily implicate Mr. Rendell personally,"
This request followed the March 22 announcement that Abu-Jamal would have
oral arguments in Philadelphia on May 17, where the court will consider four
different issues that have already been certified for appeal. Supporters
have already begun organizing a mass-demonstration in Philadelphia on May
17, and many feel that the DA's request is actually designed 1) to delay the
oral arguments and 2) to move Abu-Jamal's case to a more conservative
circuit that will be less sympathetic to the issues being presented for a
new trial.
Abu-Jamal's attorney, Robert R, Bryan, strongly opposed this move by the
District Attorney and filed his response with the court on April 13.
http://www.freemumi
In this interview (conducted on April 16), Bryan responds to this recent
move from the DA and provides background on the issues being considered on
May 17.
San Francisco attorney Robert R. Bryan has appeared as chief counsel in
numerous murder cases and specializes in death-penalty litigation. He is a
member of the bar of the United States Supreme Court, California, New York,
Alabama, various federal courts, and is the former Chair of the National
Coalition to Abolish the Death Penalty, Washington, DC.
Mumia Abu-Jamal first began writing Mr. Bryan in 1986 and in 1991 formally
asked him to take his case. The attorney had to decline at that time due to
a full schedule of other capital case commitments. In 2003 Mr. Bryan was
again approached, and finally agreed to become lead counsel for Mr.
Abu-Jamal. He can be contacted via email: RobertRBryan [at] aol.com
Hans Bennett: Last week, you filed a response to the DA's request to have
the 3rd Circuit Court recuse itself? What's this all about?
Robert R. Bryan: I was surprised that the Philadelphia District Attorney
actually asked for the disqualification of every judge on the U.S. Court of
Appeals for the Third Circuit. This seems really over the top. On Friday,
April 13, I filed a response aggressively opposing this effort by the DA.
One of my concerns is that the prosecution not be allowed to use this ploy
to delay oral argument which is set for May 17.
Mumia has been locked up for over a quarter of a century and on death row
for 24. This day for oral arguments has been a long time coming and we do
not want justice delayed. That is the bottom line. Also, I feel that this
court can be fair. The grounds presented by the DA for disqualification of
every judge are baseless and absurd.
I have been doing death penalty work for three decades and this is a novel
approach. Of course, in some cases a judge might not be fair and must be
disqualified. An example would be when I reopened in New Jersey the
Hauptmann-Lindbergh Trial of the Century on behalf of Anna Hauptmann, the
widow of Richard Hauptmann. He was executed in 1936 for the kidnap-murder of
Charles A. Lindbergh, Jr.; that was long before I was born. In the 1980s I
uncovered evidence suppressed by the government establishing that Mr.
Hauptmann was in fact innocent. We were litigating the case in the U.S.
District Court, Newark. I asked for the recusal of the judge assigned to the
case in the belief he could not be fair because his father had been involved
in the initial 1932 Lindbergh kidnap investigation as a police chief.
Recusal is statutorily required where a judge has a personal bias or
prejudice concerning a party, or personal knowledge of disputed facts, or
where there is the appearance of impropriety. However, I do not see those
conditions in the case of Mumia Abu-Jamal, where the DA wants to disqualify
not just one judge, but rather the entire court.
Bennett: Has the three-judge panel even been selected yet?
Bryan: No. We do not at this point know whom the three judges will be to
hear and decide the case. For the District Attorney to be asking for
disqualification under the circumstances seems absurd.
Bennett: In December, 2005, the U.S. Court of Appeals shocked many by
agreeing to consider two claims not "certified for appeal" by Judge Yohn in
2001. Do you think the DA is threatened by the 3rd Circuit because they may
fairly consider the issues and grant your client a new trial?
Bryan: The prosecution seems intent on doing just about anything to avoid
that result: a new trial not riddled with racism. The DA's efforts seem not
only for the purpose of delaying the May 17 oral argument, but is also a
transparent attempt to maneuver the case into being heard by really
conservative judges from other circuits. This court, the Third Circuit, has
a reputation for being fair and evenhanded, much more than some of the other
courts. That is all Mumia and I want-fairness.
The United States is divided into different circuits. This particular
circuit is known for being just, particularly when there have been
constitutional abuses and has been willing to grant relief. It is clear what
the DA is trying to do. The prosecution wants Mumia's case out of the Third
Circuit and heard instead by judges from elsewhere who are more conservative
and less concerned about constitutional violations, particularly with death
penalty cases such as this.
A word of caution. Being in the Third Circuit certainly does not guarantee a
favorable outcome. What Mumia and I want is that his case be fairly heard
and adjudged. If that occurs then we have a good chance of being granted a
new trial, since the constitutional violations are so egregious. Racism and
unfairness are threads that have run through this case since the beginning.
Bennett: In 2003 a state court ruled against considering court stenographer
Terry Maurer-Carter'
include her affidavit in the current federal appeal, despite the state
ruling?
Bryan: Ms. Maurer-Carter came forward in August, 2001 with startling new
evidence. She revealed that during the 1982 trial she overheard Judge Albert
Sabo state, in reference to Mumia, that he was going to help "fry the
nigger." Her sworn declaration was immediately filed in the U.S. District
Court. Three weeks later on September 17, 2001, a motion was filed federally
in an effort to expand the judicial bias claim, contending that the newly
discovered evidence established the judge "was racially prejudiced" against
Mumia. The evidence also was submitted to the state court, and then as part
of a petition I filed March 8, 2004 in the United States Supreme Court. The
issue we presented was whether it is permissible under the Fifth, Sixth and
Fourteenth Amendments for a judge to preside over a capital murder trial in
which he was overheard stating in reference to the accused that he was going
to help "fry the nigger." Just quoting those horrible words of Judge Sabo
sends chills down my spine.
Bennett: You have included her statement in your current 3rd Circuit appeal,
in particular regarding the fourth issue being considered: Judge Sabo's
unfairness at the 1995 PCRA evidentiary hearings.
Bryan: Yes. We have four issues in this case and this one concerns Judge
Sabo's bias, not at the 1982 trial, but during the 1995 post-conviction
(PCRA) evidentiary hearing. I am stuck with that limitation since the
lawyers previously on the case did not as a matter of law accuse Judge Sabo
of bias at the trial. The judge who was deciding whether or not to grant a
new trial in 1995 was the same person who presided over the 1982 trial in
which my client was convicted and sentenced to death. Judge Yohn assumed as
part of his federal rulings in 2001, that in denying relief Judge Sabo was
impartial and fair. Now we know that was not true. When it came to Mumia
Abu-Jamal, Judge Sabo made a bigoted remark that he was intent on seeing my
client "fry", to be executed. The constitutional principles of due process,
fundamental fairness, and equal protection of the law, had taken a holiday
from his courtroom. As you know, Mumia has been on death row ever since the
trial.
Aside from the numerous violations of my client's constitutional rights
detailed in our briefs, we also have this evidence that Judge Sabo said he
was going to help the prosecution kill my client, referring to him in the
most racist and despicable manner imaginable.
Sabo's "fry the nigger" comment is interrelated with what we are arguing on
May 17, but it is not the sole basis of the argument that Judge Sabo was
unfair at the 1995 hearing. But it is now part of it and we put it in
because it was raised shortly following discovery, and was presented to the
U.S. District Court. So I feel it is legitimately there before the Court of
Appeals.
As you know, I have litigated numerous death penalty cases around the
country for three decades. Back when I was trying many cases in the South, I
went before some very racist judges. One even jailed me three days for
contempt of court for challenging his racism and bias. Incidentally, my
client was cleared-acquitted of murder and all related charges. With all the
racism I have witnessed, never have I been before someone who was so
arrogant about his or her racism as to just openly talk about it. Mumia's
case occurred not in the South, but in Philadelphia, which, aside from the
police department, is a sophisticated city. Yet, in this case Judge Sabo
refers to Mumia as a "nigger" and boasts about helping the prosecution
ensure that he is executed. This is the big gorilla in the room that must be
addressed; it cannot be ignored.
Bennett: It's remarkable that Judge Pamela Dembe ruled in 2001 that even if
Maurer-Carter was correct, it simply does not matter. She said that since it
"was a jury trial, as long as the presiding judge's rulings were legally
correct, claims as to what might have motivated or animated those rulings
are not relevant."
Bryan: I feel that as a matter of law Judge Dembe was wrong, and of course
rejecting that she employed faulty judgment. The subsequent ruling by the
Pennsylvania Supreme Court, which I took to the United State Supreme Court,
was likewise based upon illogical reasoning. Nevertheless, as I mentioned
earlier, this issue was also presented during the same period in the U.S.
District Court. The sworn declaration of Terri Maurer-Carter was promptly
filed federally.
It is interesting that Ms. Maurer-Carter'
she an official court stenographer who has received awards for the
excellence for her court-reporting work. She is just a normal personal, not
political, but what Ms. Maurer-Carter overheard really bothered her. I have
great respect for her, that she had the courage to come forward with this
information. Ms. Maurer-Carter could have remained silent and stayed out of
this, and she and her family would certainly feel safer at night.
Bennett: Do you have an estimate of you how long it will take for the 3rd
Circuit Court to make the ruling on a new trial?
Bryan: It is difficult to say. The court has a goal of having an internal
draft decision within 60 days following assignment or all supplemental
briefing. Yet, if a judge on the panel wishes to concur or dissent, he or
she should submit the opinion within 45 days after a second judge's approval
of the majority decision. These are only targets the court sets for itself
so it could reach a decision much quicker, or longer. I hope to have a
ruling before the end of the summer, but that depends upon what happens
internally with the court; it could be sometime in the fall. I do not think
it will sit on this case for a long time. This is a court not known to
procrastinate and hold up the wheels of justice.
Bennett: What rulings could the court make?
Bryan: I will give you the two extremes of what might happen: (1) If the
court decides that Mumia deserves a new trial, the judges might order a
retrial. (2) If the court rules against us on everything, it we would be
looking down the barrel of an execution and need to petition the United
States Supreme Court. Of course, there are various rulings the court could
make between these two extremes, such as sending the case back to a lower
court for further hearings, only ordering a retrial on the issues of life or
death, etc.
The issues in this case are of great constitutional importance. In
additional to the work by associate counsel Professor Judith L. Ritter and
me, there has been support from highly respected legal organizations. The
NAACP Legal Defense Fund has written a friend of the court brief on the
"racism-in-jury-
National Lawyers Guild, which has been joined by the National Conference of
Black Lawyers, International Association of Democratic Lawyers, Charles
Hamilton Houston Institute of Race and Justice at Harvard Law School, the
Southern Center for Human Rights, and the National Jury Project. That is
quite a list of human rights-oriented organizations arguing that this case
cries for a new and fair trial not riddled with racism, as it was initially.
Bennett: What can supporters around the world do to best aid your battle in
the courts?
Bryan: People need to openly express their concern for human rights,
opposition to the death penalty, and demand what we are after in this case:
a completely new trial, at the conclusion of that trial, my client could go
home to his family. That is the bottom line, and that is what's driving me
and the legal team: Mumia's ultimate freedom.
That being said, I consider it very important that people's voices are heard
in many ways, like peacefully demonstrating, writing letters to newspaper
editors, op-ed pieces, news articles. It is really like what you, Hans, are
doing: just getting the word out publicly about the injustices that have
occurred in this case-letting the facts speak for themselves. That is what
people can do. Of course we need financial support for the legal effort, and
there is a fund strictly for the legal defense, the Committee To Save Mumia
Abu-Jamal (see below).
The big thing is that that people's voices are heard. I was in Berlin,
Germany, in January and spoke to an audience of well over two thousand
people. The audience's boisterous reaction to my remarks was
overwhelming-
people's basic rights. There is also much activism in many other countries,
such as France, England, Spain, Italy. Mumia Abu-Jamal has become a
worldwide symbol in the struggle against the death penalty, and against
human rights abuses.
When arrested Mumia was a prominent journalist who was known as the Voice of
the Voiceless, because he spoke out against governmental abuses and
corruption. The authorities thought when they prosecuted and put him on
death row, they would silence him. Ironically he is heard by more people
today through radio and print than he was when free. Mumia does not write
about himself, but rather about big issues like women's rights, racism,
wrongs committed by the U.S. and other governments in Iraq, how we treat
prisoners at places like Guantanamo, the education of young people, and
poverty.
The Philadelphia District Attorney's goal is to kill Mumia, to see him put
him in the death chamber, strapped down, and murdered in the name of the
law. The hope of the state is to silence Mumia once and for all.
We all need to understand that the racism and unfairness continues through
the present and we are trying to change that.
Bennett: Anything else to add?
Bryan: The Batson issue, which concerns racism in jury selection, is very
important. It was not just in my client's case, but it was actually the
modus operandi of lawyers in the District Attorney's Office to remove people
from the jury who were black and poor. This rendered the trial unfair. The
U.S. Supreme Court as well as the U.S. Circuit Court of Appeals have spoken
on this issue, ruling that this type of behavior by prosecutors is
constitutionally unacceptable.
Bennett: How long have you and Mumia know each other?
Bryan: Mumia started writing me in 1986 and we eventually got to know each
other, but I had to turn down the case because I was too busy with other
death penalty work. When he came back to me just over four years ago, I
could not say no, because it was too important and he needed help.
Mumia has reminded me that what we are all doing is far bigger that just his
case. It relates to everyone on death row, and is about people everywhere
who are unfairly treated, political prisoners around the globe. We need to
bear in mind that a victory for Mumia Abu-Jamal will help other people. That
is Mumia's concern. He hopes that what we are doing in his case will help
other death row inmates, and put a spotlight on the things wrong with legal
systems everywhere. The racism needs to be exposed, brought out to the light
of day, and changed. We are about making change for a lot of people.
--
To contribute to the legal defense of Mumia, check should be made payable to
the "National Lawyers Guild Foundation." The NLG Foundation is a tax-exempt,
nonprofit charitable organization under Internal Revenue Code Section
501(c)(3). Donations should be mailed to: Committee To Save Mumia Abu-Jamal,
P.O. Box 2012, New York, NY 10159.
The four issues being considered are:
#1. Whether the penalty phase of Mumia's trial violated the legal precedent
set by the US Supreme Court's 1988 Mills v. Maryland ruling. This issue was
grounds for Yohn's overturning the death sentence in 2001 and is now being
appealed by the DA. Yohn ruled that sentencing forms used by jurors and
Judge Sabo's instructions to the jury were confusing. Subsequently, jurors
mistakenly believed that they had to unanimously agree on any mitigating
circumstances in order to be considered as weighing against a death
sentence.
#2. "Certified for appeal" by Yohn in 2001, the Batson claim, addresses the
prosecution'
jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a
defendant deserves a new trial if it can be proved that jurors were excluded
on the grounds of race.
At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory challenges
to remove black jurors that were otherwise acceptable. While Philadelphia is
44% black, Abu-Jamal's jury was composed of ten whites and only two blacks.
From 1977-1986 when current Pennsylvania governor Ed Rendell was
Philadelphia'
Philadelphia DA struck 58% of black jurors, but only 22% of white jurors.
#3. The legality of McGill's statement to the jury minimizing the
seriousness of a verdict of guilt: "if you find the Defendant guilty of
course there would be appeal after appeal and perhaps there could be a
reversal of the case, or whatever, so that may not be final."
In 1986 the Pennsylvania Supreme Court ruled against McGill in another case
(Commonwealth v. Baker) on the same grounds. When Mumia addressed this same
issue in his 1989 appeal with the State Supreme Court, the court reversed
its decision on the legality of such a statement-ruling against the claim
for a mistrial.
Incredibly, just one year later, in the very next case involving this issue
(Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored
the precedent. However, this would not affect the ruling against Mumia,
because the court ruled that this precedent would only apply in "future
trials."
#4. The fairness of Mumia's 1995-97 PCRA hearings when the retired,
74-year-old Judge Sabo was called back specifically for the hearing. Besides
the obvious unfairness of recalling the exact same judge to rule on his
fairness in the original 1982 trial, his actual PCRA bias has been
extensively documented.
During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that
the "behavior of the judge.gave the impression, damaging in the extreme, of
undue haste and hostility toward the defense's case." Concluding the PCRA
hearing, Sabo rejected all evidence and every witness presented by the
defense as not being credible. Therefore, Sabo upheld all of the facts and
procedures of the original trial as being correct.
For more information, visit mumia.org (Philadelphia)
York City), freemumia.org (San Francisco), or emajonline.com (Educators for
Mumia). For the latest on Abu-Jamal from the independent media, check out
Bennett's new "Voice of the Voiceless" series on Abu-Jamal being published
in the months leading up to the oral arguments at:
http://hbjournalist
---
Source : Indybay (Hans Bennett (insubordination.
Philadelphia-
free Mumia and all political prisoners for more than 5 years
http://freemumia.
http://www.indybay.
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