February 12, 2010
By Linn Washington OpEd News
Two inmates on Pennsylvania's death row raise the same issue on
appeal blatant misconduct by prosecutors and police yet Pa's Supreme
Court issues different rulings in these respective cases.
The Pa Supreme Court released Jay C. Smith directly from his death
row cell, ruling the misconduct by prosecutors and police so
"egregious" that retrying Smith for murdering a school teacher and
her two children would violate fair trial protections in Pa's state
Constitution.
However, in appeals from convicted Philadelphia cop killer Mumia
Abu-Jamal, Pa's highest court repeatedly rejects solid evidence of
wrongdoing by prosecutors and police despite that misconduct being
more extensive than misconduct in Smith'scase.
Why, people wonder worldwide, does Mumia Abu-Jamal remain imprisoned
when mounds of evidence unearthed since his 1982 trial undermine all
aspects of the controversial conviction that sent this acclaimed
journalist to death row?
The answer to this justice denying/logic defying question is simple:
"The Mumia Exception."
This "Mumia Exception" is the phrase devised to describe the practice
repeatedly employed by state and federal courts to strip Abu-Jamal of
the same legal relief those courts extend to other inmates raising
the same legal issue when challenging violations of their legal rights.
Jurists bending and/or breaking the bedrock American legal principal
of equal justice under the law is the driving dynamic of "The Mumia Exception."
This "Exception" explains how Pa's Supreme Court in the Smith case
castigated authorities for illegally withholding evidence crucial to
the high school principal's defense while that court constantly
refuses to criticize any of the misconduct that crippled Abu-Jamal's defense.
The fact that courts including the U.S. Supreme Court have
consistently upheld the conviction of the world's most recognized
death row denizen is a key argument advanced by persons backing
Abu-Jamal's execution when countering claims of his innocence.
Execution advocates reject "The Mumia Exception" as the reason why
courts uphold Abu-Jamal's conviction despite the fact that dismissing
the role of the "Exception" requires embracing scenarios that defy
statistics and common sense.
For example, Philadelphia and Pennsylvania appellate courts
overturned 86 Philadelphia death penalty convictions between
Abu-Jamal's December 1981 arrest and October 2009 after finding
various errors by prosecutors, police, defense attorneys and even
judges including the judge at Abu-Jamal's trial.
Yet, those same courts declare that not a single error evidentiary or
procedural exists anywhere in the contentious Abu-Jamal case a
statistically improbable circumstance.
Pa and federal courts have even brushed aside credible evidence that
on the eve of Abu-Jamal's 1982 trial the presiding judge, Albert
Sabo, declared he would help prosecutors "fry the Nigger" an odious
admission oozing racial bigotry and lack of impartiality clearly
violating Abu-Jamal's constitutionally guaranteed fair trial rights.
The twin pillars of this "Mumia Exception" are: courts refusing to
apply their established legal rulings (precedent) to Abu-Jamal's
appeals; and/or courts creating new legal standards to sabotage
Abu-Jamal's appeals.
One easily understood example of the failure-to-follow-precedent
prong of "The Mumia Exception" involves state and federal appellate
courts in Pennsylvania dismissing 22 death sentences because of
failures by defense lawyers to present any mitigating evidence for
their clients during death penalty hearings.
Yet, Pa state and federal courts repeatedly found no violation in the
failure of Abu-Jamal's trial lawyer to present any kind of mitigating
evidence during the penalty hearing producing Abu-Jamal's death sentence.
It's important to note that courts uphold procedural rights in death
penalty cases like the mitigating evidence requirement without
challenging evidence of guilt.
The most recent example of the "Exception's" create-new-law prong is
the 2008 ruling by the federal 3rd Circuit Court of Appeals upholding
Abu-Jamal's conviction where it created a new standard for
challenging racist jury selection practices by prosecutors.
That newly invented 3rd Circuit standard exceeded both the jury bias
proof precedent that appeals court used six previous times in
faulting discriminatory practices by prosecutors. Further, that new
standard was more stringent than U.S. Supreme Court precedent.
But, when the U.S. Supreme Court rejected Abu-Jamal's appeal in April
2009, it exhibited "The Mumia Exception" by allowing the 3rd
Circuit's precedent-contradicting standard to stand thus keeping
Abu-Jamal sitting in a death row cell.
Examples of the "Mumia Exception" abound"even in court rulings
involving defendants convicted of killing police officers.
Three years before Abu-Jamal's December 9, 1981 arrest for fatally
shooting Philadelphia Policeman Daniel Faulkner the Pa Supreme Court
granted a new trial to a Pittsburgh, Pa man sentenced to death for
the ambush slaying of a police officer.
The Pa Supreme Court, in that 1978 ruling, condemned a judge for
allowing prosecutors to introduce "irrelevant and prejudicial"
evidence that improperly inflamed the jury.
But eleven years later the Pa Supreme Court rejected Abu-Jamal's
appeal claim that his trial judge allowed prosecutors to improperly
taint jurors with their inflammatory yet unsubstantiated assertion
that Abu-Jamal's teenaged membership in the Black Panther Party
spurred his killing a cop.
Abu-Jamal, an award-winning journalist who voluntarily left the BPP
in 1970, had no record of violence or other criminal conduct.
In 1999, the Pa Supreme Court released two reputed gangsters
convicted of a high-profile mob murder in Philadelphia, declaring
that pair was denied a fair trial due to "extensive and flagrant
prosecutorial misconduct."
That ruling releasing the mobsters from prison came one year after
the Pa Supreme Court rejected all allegations of fair trial
violations when upholding Abu-Jamal's conviction for the second time.
That October 1998 ruling rejected voluminous evidence presented
during Abu-Jamal's mid-1990s post-conviction appeal proceedings
documenting official misconduct. That evidence included prosecutorial
misconduct of improperly withholding evidence of innocence,
discriminatory jury selection practices and intimidating defense witnesses.
The pro-prosecution bias of Judge Albert Sabo during Abu-Jamal's 1995
post-conviction appeal hearing was so pronounced that it drew intense
criticism from local and national news media normally hostile to Abu-Jamal.
While editorials, commentaries and news coverage assailed Sabo's
improprieties, including fining and jailing Abu-Jamal's defense
lawyers, the Pa Supreme Court proclaimed the "opinions of a handful
of journalists" did not convince it that Sabo acted improperly.
One 1995 rights demolishing action completely ignored by state and
federal courts was then PA Governor Tom Ridge issuing a death warrant
on the eve of Abu-Jamal's lawyers filing their post-conviction appeal.
Ridge's office knew when lawyers planned to file that appeal because
Pa prison authorities were illegally intercepting mail from
Abu-Jamal's lawyers and forwarding copies of that correspondence
containing legal strategy to the Governor's office.
That death warrant, violating Abu-Jamal's appeal right, cast a
disruptive cloud, allowing Sabo to rush the appeal hearing citing the
urgency of that death warrant.
Shamelessly, the Pa Supreme Court allowed Sabo to handle that appeal
hearing despite his bias during the 1982 trial being one of the appeal issues.
The enormous attention given to the "whodunit' aspects underlying
Abu-Jamal's conviction easily obscures critical context regarding
systemic violations like that legally indefensible interference by
then Gov. Ridge who later served as Homeland Security czar for
President George W. Bush.
Assertions by Abu-Jamal's opponents that his obvious guilt negates
any need for judges to apply fair trial protections and/or employ
equal justice principles contradict decades of court rulings -- precedent.
The Pa Supreme Court declared in a 1959 ruling that defendants are
entitled "to all the safeguards of a fair trial"even if the evidence
of guilt piles as high as Mt. Everest."
That fair trial right exists irrespective of whether judges or
prosecutors are convinced of a defendant's guilt, Pa's highest court
stated in that ruling issued when Abu-Jamal was four-years-old.
That 1959 ruling arose from a Philadelphia murder case where the
defendant pled guilty. Abu-Jamal has consistently proclaimed his
innocence in the fatal shooting of Officer Faulkner before, during
and after his trial.
The U.S. Supreme Court first employed "The Mumia Exception" during
rulings in the early 1990s granting relief to a white racist prison
gang member and a devil worshipper who'd raised the same appeal issue
as Abu-Jamal.
Each defendant claimed prosecutors violated their First Amendment
free association rights with references to respective prison gang,
devil worshipping and BPP memberships.
The Supreme Court faulted prosecutorial references to the then
current organizational affiliations of that gang member and devil
worshipper while it twice found no fault in prosecutors exploiting
Abu-Jamal's past BPP membership.
Equal protection of laws seemingly should have provided an ex-Black
Panther with the same Constitutional protections extended to the
racist gang member and devil worshipper.
Incredibly "The Mumia Exception" is the least scrutinized aspect of
this heavily examined case.
Jurists never admit employing "The Mumia Exception" because that
improper procedure violates their sworn duty to uphold the legal
principles of equal justice and adherence to precedent.
Failure to factor the endemic impact of "The Mumia Exception"
elevates the credibility of fallacious claims about Abu-Jamal's
"open-&-shut' guilt.
Author's Bio: Linn Washington Jr. is a veteran investigative
journalist who writes regularly on issues involving the criminal
justice system, the news media, race-&-racism, constitutional rights
and the Mumia Abu-Jamal case. He is passionate about examining
injustices. Washington embraces the often forgotten role of
journalism: to hold the powerful accountable. Washington writes a
weekly column for The Philadelphia Tribune, America's oldest
African-American owned newspaper. He is a graduate of the Yale Law
Journalism Fellowship. Washington enjoys biking, hiking and visiting
foreign countries. He lives in a semi-rural section of South Jersey.
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