Verdict Nullification? Like it or not, Mumia may get a new trial.

by Dave Lindorff
Published: May 23, 2007


When the name Mumia Abu-Jamal comes up in local conversation, the debate immediately begins over whether he is guilty of a murder that has kept him on Pennsylvania's death row for 25 years. Rarely does it address the underlying question of whether he had a fair trial or appeal process.

Now, three 3rd U.S. Circuit Court of Appeals judges are mulling key elements that pertain to that very crucial question. They are also considering whether to uphold a 2001 decision by Federal District Judge William Yohn that overturned Abu-Jamal's death sentence for the Dec. 9, 1981, murder of Philadelphia police officer Daniel Faulkner.

The key claim argued before the three-judge panel during a two-and-a-half-hour hearing last Thursday (May 17) in the packed Ceremonial Courtroom of the federal courthouse was whether the prosecutor at the 1982 trial, Joseph McGill, improperly removed potential qualified jurors because of race.

In 1995, the District Attorney's office admitted that McGill used 10 of 15 peremptory challenges requests to strike jurors from consideration, for which no reason has to be given to remove black jurors who otherwise met the requirements to be on the panel, including a willingness to vote for death. This means that, of 14 possible qualified African-American jurors, McGill eliminated 10. That compares to only five white jurors that he peremptorily dismissed out of a possible 25. And it left Abu-Jamal's jury with nine whites and three blacks in a city that was 44 percent black (the gap widened when a black juror was removed by the judge and replaced by a white alternate, with the enthusiastic endorsement of McGill).

On its face, that would seem to be prima facie evidence of racial discrimination that would normally warrant a hearing, but there is more: Over the course of six murder trials that he tried, McGill used his peremptory challenges to remove 74 percent of qualified black jurors, compared to only 25 percent of white jurors. Moreover, McGill's methods were part of a pattern prevailing during the two terms of McGill's boss, then D.A. Ed Rendell. Under Rendell, prosecutors barred 58 percent of all blacks via peremptory challenges, compared to just 22 percent of whites.

Abu-Jamal's lead attorney, Robert R. Bryan, cited these statistics and noted that during jury questioning, McGill asked different questions of blacks than whites, and used different standards in deciding whom to remove.

Rather than contest the statistics and other evidence of racial discrimination in jury selection, Hugh Burns ­ the head of the DA's appeals unit, he argued the state's case against Abu-Jamal claimed that Abu-Jamal had no right to raise the issue in federal court. Burns alleged that Abu-Jamal had missed his chance to do so in 1995, during his Post-Conviction Relief Act (PCRA) hearing, or subsequent appeal to the state supreme court.

The problem with the DA's argument? Much evidence of race-based jury selection did not come to light until 1998, a year after Abu-Jamal's final appeal had been decided. Since Abu-Jamal couldn't have had that evidence until his state appeal was over, it was first presented in his federal habeas appeal in 1999.

A second line of appeal by Abu-Jamal, briefly discussed at last week's hearing, was a statement made by McGill during his summation on the last day of the trial; he told jurors that if they had doubts about the defendant's guilt, they needn't worry, because, "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." (Juries are supposed to reach a guilty verdict only if the case was proven "beyond a reasonable doubt.") This was no slip by McGill, who used identical language in another case, which is why the state Supreme Court, in 1986, overturned that defendant's death sentence.

Now, Abu-Jamal is asking the appeals court to overturn his conviction on the same grounds. He seemed to have won some support from at least one judge, Robert Cowen.

When prosecutor Burns argued that McGill's statement could justify only overturning a sentence, not conviction, Cowen asked, "But isn't what the prosecutor said a denial of [the defendant's] right to a fair trial?"

There were many problems with Abu-Jamal's trial, his lawyers and supporters maintain. He was provided with almost no funds for ballistics or forensic experts. Records of interrogations show that prosecution witnesses were pressured by police over the course of six months to alter their testimony to comport with the prosecution's crime scenario. For example, white taxi driver Robert Chobert, who originally told police the shooter had fled the scene, later graphically described seeing Abu-Jamal do the shooting, execution-style. Chobert was uniquely vulnerable to pressure from prosecutors he had been driving on a license that had been suspended for a DWI conviction, and was also on five-years' probation for felony arson in the fire-bombing of an elementary school for money. Neither this information nor the fact that he had asked the DA to help him "fix" his license was allowed to go to the jury.

The point is that when people develop opinions about this controversial case, particularly in Philadelphia, they tend to base them on the fact of Abu-Jamal's conviction, and then, working on the assumption that the jury accepted the facts as presented at trial to be true, go on to proclaim him guilty of Faulkner's murder.

What if the conviction itself, however, was the result of a pre-selection of jurors inclined to believe the prosecutor, think Judge Albert Sabo was fair and believe police officers and prosecution witnesses? And if, moreover, those jurors were allowed to be assured by the prosecutor that the standard for conviction needn't be "proof beyond a reasonable doubt," then what certainty is there about any of the "facts" presented at the trial, or about the verdict?

This is why the appeal now being considered by the three judges of the 3rd Circuit Chief Judge Anthony Scirica, Judge Cowen and Judge Thomas Ambro is critical. If justice and the hallowed constitutional right to a fair trial are to have any real meaning in the United States, it is essential that juries be chosen in a manner that is fair, not stacked, and it is essential that if the resulting jury convicts especially in a capital case it be on the basis of "proof beyond a reasonable doubt."

As the arguments presented at the 3rd Circuit hearing made clear, there are solid reasons to doubt that either of those things happened in Abu-Jamal's case. Philadelphians need to be prepared to accept that if at least two judges on the appeals court panel reach that conclusion, there will be no way to convincingly argue that Abu-Jamal "did it," until the evidence is presented fairly at a new trial.

(editorial@citypaper.net)

Dave Lindorff, a Philadelphia-area investigative journalist and columnist, is author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2004).