Mumia Abu-Jamal’s Last Chance for Justice

By J. Patrick O’Connor

Since his conviction in 1982 for the murder of Philadelphia Police Officer Daniel Faulkner, Mumia Abu-Jamal, through his numerous books, essays and radio commentaries, has become the face of the anti-death penalty movement in the United States and an international cause célèbre. Paris, for example, made him an honorary citizen in 2003, bestowing the honor for the first time since Pablo Picasso received it in 1971.

Abu-Jamal’s case has been politically charged from the beginning. As Amnesty International established in its 2000 pamphlet entitled "The Case of Mumia Abu-Jamal: A Life in the Balance," his tortuous appeal process has been fraught with "judicial machinations." Claims that won the day in other cases were repeatedly denied him, first by the Pennsylvania Supreme Court in 1989 and subsequently by a Federal District Court in 2001 where the judge overturned his death sentence but left in place in his conviction – and Abu-Jamal on death row – pending further appeals.

The latest example of what has become known as "the Mumia exception" occurred in March of 2008 when the U.S. Court of Appeals for the Third Circuit, in a sharply divided 2-1 decision, turned down Abu-Jamal’s appeal for a new trial based on the claim that the prosecutor – through his use of peremptory challenges – purged otherwise qualified blacks from his jury. In 1986, the U.S. Supreme Court handed down its landmark Batson decision, ruling that racial discrimination in jury selection is unconstitutional and merits the harmed defendant a new trial.

In a nutshell, the Third Circuit majority denied Abu-Jamal’s Batson claim on a technicality of its own invention, not on its merits, ruling that his claim failed because he was not able to establish the racial composition of the entire jury pool at his 1982 trial. In issuing its ruling, the court, incredibly, ignored its own previous opposite rulings in the Holloway v. Horn in 2004 and Brinson v. Vaughn in 2005 where it specifically ruled it was not required for the defendants in those cases to establish such data.

Abu-Jamal’s final opportunity for judicial relief is now before the U.S. Supreme Court in the form of a Petition for a Writ of Certiorari. On February 4, the high court docketed and accepted that filing. According to Abu-Jamal’s lead attorney, Robert Bryan of San Francisco, "The central issue in this case is racism in jury selection. The prosecution systematically removed people from sitting on the trial jury purely because of the color of their skin, that is, being black."

Joseph McGill, the prosecutor at Abu-Jamal’s trial, has stipulated in previous appeal proceedings that he used 10 of the 15 peremptory challenges he exercised to exclude blacks from the jury – a strike rate of 66.67 percent against potential black jurors. Such a high strike rate is in itself an extremely strong inference of discrimination. The result was that – in a city with a black population of over 40 percent in 1982 – only three of the 12 jurors impaneled were black. As Third Circuit Judge Thomas Ambro pointedly stated in his dissent, "It is my belief that the 66.67 percent strike rate, without reference to the total venire [jury pool], can stand on its own for the purpose of raising an inference of discrimination."

During last year’s term, the U.S. Supreme Court expanded its 1986 Batson ruling to warrant a new trial if a minority defendant could show the inference of racial bias in the prosecutor’s peremptory exclusion of one juror. Under Batson, the defense needed to show an inference – i.e., a pattern – of racial bias in the overall jury selection process. Ironically, the Supreme Court’s 7-2 decision strengthening and expanding Batson’s reach was written by Justice Samuel Alito, most recently of the Third Circuit Court of Appeals.

As a result, there is something more than a remote possibility that the Supreme Court will agree to grant Abu-Jamal’s writ. In denying Abu-Jamal’s Batson claim, the Third Circuit’s ruling created new law by placing new restrictions on a defendant’s ability to file a Batson claim. The Third Circuit, in effect, tampered with and undermined a long-established Supreme Court ruling.

A Writ of Certiorari is a decision by the Supreme Court to hear an appeal from a lower court. Supreme Court justices rarely give a reason why they accept or deny Cert. Although all nine justices are involved in considering Cert Petitions, it takes only four justices to grant a Writ of Certiorari, even if five justices are against it. This is known as "the rule of four."

If the Supreme Court were to grant Cert on Abu-Jamal’s Batson claim, one clean, simple option for it would be to remand the case to federal district court for the Batson hearing both the Federal District Court in 2001 and the Third Circuit in 2008 should have ordered. Such a hearing would, in all probability except for "the Mumia exception," lead to a new trial for Abu-Jamal. A new trial, considering the utter travesty of justice his original trial represented, would set him free. If Certiorari is denied, Abu-Jamal – now 54 – will, barring the most unlikely intervention by a future governor of Pennsylvania, spend the rest of his life in prison.

—J. Patrick O’Connor is the editor of Crime Magazine (www.crimemagazine.com) and the author of The Framing of Mumia Abu-Jamal, published by Lawrence Hill Books in 2008.

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ARTICLE FROM 2008:

Analysis of the U.S. Court of Appeals for the Third Circuit’s decision in the case of Mumia Abu-Jamal

By J. Patrick O’Connor
(2008)

The U.S. Court of Appeals for the Third Circuit’s ruling in the case of Mumia Abu-Jamal continues a long and tortured denial of Abu-Jamal’s right to a fair trial. Just as the Pennsylvania Supreme Court reversed its own precedent to deny Abu-Jamal a new trial based on the prosecutor’s improper summation to the jury during the guilt phase of his trial, the Third Circuit’s March 27 decision has now followed suit by going against its own well-established precedent regarding Abu-Jamal’s well founded Batson claim. Instead of remanding the case to federal district court for consideration of Abu-Jamal’s claim that his trial prosecutor purged blacks from the jury by using peremptory challenges in a discriminatory manner at his 1982 trial, a 2-1 majority of judges ruled to uphold the Pennsylvania Supreme Court’s denying his Batson claim.

On Abu-Jamal’s other two claims before the Third Circuit, the three-judge panel was unanimous in its rulings. It denied Abu-Jamal’s claim that the prosecutor’s summation to the jury during the guilt phase of the trial infringed his constitutional right to a fair trial, finding that the Pennsylvania Supreme Court’s denying of this claim was not "unreasonable." Abu-Jamal’s claim that Judge Sabo was biased against him during his Post Conviction Relief Act hearing was denied because "alleged errors in collateral proceedings are not a proper basis for habeas relief...It is the original trial that is the ‘main event’ for habeas purposes."

The panel upheld Federal District Court Yohn’s 2001 ruling overturning Abu-Jamal’s death sentence, ordering the Philadelphia D.A.’s Office to hold a new sentencing hearing within 180 days or to sentence Abu-Jamal to life in prison without parole.

The chances of the D.A.’s Office holding a new sentencing hearing are about as non-existent as its chances for getting a new jury to reinstate the death penalty for Abu-Jamal. For one thing it would be the sentencing hearing of all sentencing hearings. The hearing would take weeks to conduct and would be guaranteed to attract hundreds, if not thousands, of Abu-Jamal’s ardent supporters to Philadelphia’s landmark City Hall. A new jury would be impaneled to hear the facts of the case, many of which could be challenged and probably debunked by Abu-Jamal’s attorneys. And unlike at Abu-Jamal’s last sentencing hearing where his defense attorney called no character witnesses to testify on his behalf, a who’s who of witnesses would be placed under oath before the jury to attest to his admirable character. A much more likely course is for the D.A.’s Office to appeal the overturning of the death sentence to the overall Third Circuit, requesting an en banc hearing, or, if that is denied, a direct appeal to the U.S. Supreme Court. Philadelphia D.A. Lynne Abraham will appeal out of spite, in keeping with her long running vendetta against Abu-Jamal, not because she holds out any hope of a higher court reinstating the death penalty.

The Abu-Jamal case has been racially charged and politicized from the outset, from the time of his arrest when Police Inspector Alfonzo Giordano set the framing of the former Black Panther in motion by enticing prostitute Cynthia White to perjure herself about Officer Daniel Faulkner’s shooting. The Third Circuit Court’s ruling continues the injustice. Is it a coincidence that the two judges in the majority were both appointed by President Reagan and the lone Democrat-appointed judge on the three-judge panel was the dissenter? It seems not. As the U.S. Supreme Court itself demonstrates time and time again in its decisions, not even its justices are free of partisan and ideological biases.

In Chief Judge Anthony Scirica’s summation of the case for the Third Circuit majority, he makes no attempt to demonstrate that he actually sifted through the pages of conflicting trial testimony to prove that he even read that testimony or gave it any meaningful analysis. He simply buys into the prosecution’s entire scenario of how Officer Faulkner came to die despite the ballistics and medical evidence presented at trial showing otherwise. Scirica has Abu-Jamal running toward Faulkner and shooting him in the back. As Faulkner falls to the ground, he was able to turn around, reach for his own firearm, and fire at Abu-Jamal, striking him in the chest. He then has Abu-Jamal standing over Faulkner and firing four shots at close range. One of the shots strikes Faulkner between the eyes and enters his brain.

Scirica mistakenly has Robert Chobert – instead of taxi driver Robert Harkins – stopping Officers Shoemaker and Forbes to inform them of Faulkner’s shooting.

He has Shoemaker giving Abu-Jamal "repeated orders to freeze, but Abu-Jamal reaching for an object – a revolver – near his hand, prompting Shoemaker to kick Abu-Jamal in the chest to move him away from the gun." Abu-Jamal was blacked out at the time of Shoemaker’s arrival.

Scirica has Abu-Jamal resisting arrest while officers moved him to a police van, without referencing the fact that – as police testimony at trial showed – Abu-Jamal was too weak to stand and had to be carried to the van and en route the police rammed his head into a pole and dropped him to the ground.

He reprises security guard Priscilla Dunham’s claim about Abu-Jamal defiantly shouting out a confession, which he quotes verbatim.

The chief judge has Cynthia White seeing Abu-Jamal shoot Faulkner in the back, then "hover" over Faulkner, prior to shooting him a few more times and then Abu-Jamal sitting down on the curb. The judge does not reference the fact that not one witness at trial could recall seeing her at the scene, that she had 38 arrests for prostitution in Philadelphia, and that she so altered her original statement to the police about the shooting that she had no credibility.

Next Scirica took up Robert Chobert. He said Chobert heard a shot, looked up and saw Faulkner fall to the ground, and then saw Abu-Jamal fire a few shots into Faulkner. At trail, Chobert had claimed to have been parked directly behind Faulkner’s patrol car. No witnesses, not even Cynthia White, noticed a taxi cab behind the patrol car and none was there when police arrived within two minutes of the shooting. In his trial testimony, Chobert, like White, backed away in numerous important details from his original statement to the police given shortly after the shooting.

Scirica has eye-witness Michael Scanlan saying he saw an assailant shoot Faulkner from behind, then watched as Faulkner fell, and saw the assailant stand over Faulkner and shoot him in the face. Scirica does not mention that Scanlan identified the shooter as having an Afro and wearing a black knit cap or that Scanlan testified he never saw the man running from the parking lot [Abu-Jamal] shoot the officer.

Scirica credits Anthony Jackson with "spending the last five months preparing for trial," when, in fact, once Judge Ribner agreed at a pre-trial hearing to allow Abu-Jamal to represent himself pro se that Jackson virtually stopped preparing for trial and had not pre-interviewed one witness prior to trial.

More absurdly, Scirica states that Jackson kept Abu-Jamal "fully informed throughout the proceedings" during the time that Abu-Jamal was banished from the courtroom, which was over half his trial. In reality, Abu-Jamal and Jackson hardly conferred at all during the trial.

Judge Scirica’s cavalier disregard for the trial record would underpin the majority’s view of the merits of Abu-Jamal’s Batson claim.

In its ruling on the Batson claim, the majority stated that it believed Abu-Jamal had "forfeited his Batson claim by failing to make a timely objection. But even assuming Abu-Jamal’s failure to object is not fatal to his claim, Abu-Jamal has failed to meet his burden in providing a prima facie case." The majority wrote that he failed because his attorneys at his PCRA evidentiary hearing failed to elicit the prosecutor’s reasons for removing 10 otherwise qualified blacks by means of peremptory strikes during jury selection.

"Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a prima facie case can be made without evidence of the strike rate and exclusion rate. But in this case, we cannot find the Pennsylvania Supreme Court’s ruling [denying Abu-Jamal’s Batson claim] unreasonable based on this incomplete record," the majority wrote. In a nutshell, the majority denied Abu-Jamal’s Batson claim on a technicality of its own invention, not on its merits. It also ignored its own previous opposite ruling in the Holloway v. Horn case in 2004.

Judge Thomas Ambro’s dissent was sharp: "...I do not agree with them [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for."

In other words, the majority, in this case alone, has upped the ante required for making a Batson claim beyond what the United States Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court imposed no timeliness restrictions as to when a Batson claim may be raised, nor has the court done so in the intervening 22 years. Neither did it require that the racial composition of the entire jury pool be known before a Batson claim could be raised. (In fact, the Supreme Court recently added heft to its Batson ruling, ruling in Synder that the purging of only one black juror on the basis of racial discrimination was grounds for a new trial.) In addition, the Supreme Court ruled in 1986 that to establish a prima facie case for a Batson claim, the defendant must show only "an inference" of prosecutorial discrimination in purging potential jurors. Even the Third Circuit has never previously allowed the timing of a Batson claim to be material, nor had it ever ruled previously that not knowing the racial composition of the entire jury pool was a fatal flaw in lodging a Batson claim.

The fact that the prosecutor in Abu-Jamal’s case used 10 of the 15 peremptory challenges to exclude blacks from the jury – a strike rate of 66.67 percent against potential black jurors – is in itself an extremely strong inference of discrimination. The result was that only three of the 12 jurors impaneled were black. As Judge Ambro correctly stated in his dissent, "It is my belief that the 66.67 percent strike rate, without reference to the total venire [jury pool], can stand on its own for the purpose of raising an inference of discrimination."

Ambro followed that assertion by writing, "My colleagues attempt to downplay the strike rate by saying it is essentially meaningless without reference to the racial makeup of the venire as a whole. They claim it is impossible to understand such a high strike rate without ‘contextual markers’ about the entire jury venire. While such ‘markers’ would be helpful, the lack of a record containing that information should not serve as an absolute bar to Abu-Jamal’s claim. Simply put, the failure to develop a record of the entire venire pool or all black members in that pool (against which to compare the prosecutor’s use of peremptory strikes) does not defeat a prima facie Batson claim. This is because Batson does not place the burden on the petitioner to develop a full statistical accounting in order to clear the low prima facie hurdle of the Batson analysis."

In commenting on Holloway v. Horn, a case with striking similarities to Abu-Jamal Batson’s claim, Ambro demonstrated just how disingenuous the panel’s ruling against Abu-Jamal’s Batson claim was. "In Holloway, we emphasized that ‘requiring the presentation of [a record detailing the race of the venire] simply to move past the first [prima facie] stage in the Batson analysis places an undue burden upon the defendant. There we found the strike rate – 11 of 12 peremptory strikes against black persons – satisfied the prima facie burden despite the lack of contextual markers my colleagues now seek here." In Holloway, the Third Circuit ruled that the Pennsylvania Supreme Court decision denying Holloway’s Batson claim was "contrary to" and an "unreasonable application of" the Batson standard.

In fact, in rendering its Holloway decision, the Third Circuit specifically rejected the requirement that a petitioner develop a complete record of the jury venire. In making its ruling in Abu-Jamal’s appeal, it reversed itself to make the pretext of an incomplete jury record his fatal misstep.

The Third Circuit – if it had followed its own precedent – would have found the Pennsylvania Supreme Court’s ruling denying Abu-Jamal’s Batson claim "unreasonable" and remanded the case back to Federal District Court Judge Yohn – the judge who ruled on Abu-Jamal’s habeas corpus petition in 2001 – to hold an evidentiary hearing to determine the prosecutors’s reasons for excluding the 10 potential black jurors he struck. If that hearing satisfied Judge Yohn that all of the prosecutor’s reasons for striking potential black jurors were race neutral, Abu-Jamal’s Batson claim would fail. If, conversely, that hearing revealed racial discrimination on the part of the prosecutor during jury selection – even if only concerning one potential juror – Yohn would be compelled to order a new trial for Abu-Jamal.

Abu-Jamal is left with only two remedies to correct the flawed Third Circuit ruling. His first option is to request the Third Circuit to review its decision en banc where the entire panel of judges sitting on the Third Circuit would conduct oral arguments anew. On April 9, the Third Circuit granted Abu-Jamal’s petition for Extension of Time to File for Rehearing and Rehearing En Banc, allowing Abu-Jamal’s attorneys until May 27 to file.

According to Abu-Jamal’s lead attorney, Robert R. Bryan, the basis of the petition he will file is that the Third Circuit’s "decision conflicts with a decision of the U.S. Supreme Court or of the court [Third Circuit] to which petition is addressed and consideration of the full court is therefore necessary to secure uniformity of the court’s decisions," and "the proceeding involves one or more questions of exceptional importance."

There is some likelihood that the Third Circuit might agree to meet en banc because the panel’s decision to deny Abu-Jamal’s Batson claim went against that court’s own well-established precedents in granting similar Batson claims in the past. However, the barrier to en banc deliberations is that a majority of the sitting judges must vote to sit. In the case of the Third Circuit, there are 12 judges eligible to vote, but four have already recused themselves from this particular case, meaning five of the remaining eight judges would be needed to go forward en banc. Abu-Jamal has most probably had his one day before the Third Circuit.

Barring an en banc hearing by the Third Circuit, Abu-Jamal’s final option is to appeal the Third Circuit’s ruling to the U.S. Supreme Court, which has on three previous occasions denied to take up his case. This time, though, there is a remote possibility that the high court may take the case up because the Third Circuit’s ruling created new law by placing new restrictions on a defendant’s ability to file a Batson claim.