By Betsey Piette
Published May 24, 2007 12:38 AM
Over a thousand people rallied in support of death row, political prisoner Mumia Abu-Jamal on May 17 outside the Federal Building in downtown Philadelphia, where a three-judge panel from the U.S. Court of Appeals for the Third Circuit convened to hear oral arguments on his right to a new trial.
Around 200 Mumia supporters, including Dick Gregory, former U.S. Congresswoman Cynthia McKinney, Lynne Stewart, Kathleen Cleaver, and international delegates from France and Germany, were also eyewitnesses on Mumia's behalf inside the courtroom. Abu-Jamal was prohibited from attending this oral hearing.
Participants included busloads from New York and Boston; youth organized by FIST (Fight Imperialism, Stand Together) and Students for a Democratic Society, who traveled overnight from North Carolina; a car caravan from Georgia led by McKinney; and supporters from Richmond, Cleveland and as far away as Los Angeles and San Francisco. However, the overwhelming majority were from the Philadelphia area, many who took off from work to attend.
There were rallies supporting Abu-Jamal in several other U.S. cities (see page 7 round-up article) and demonstrations in many countries around the world, including France, Japan, Mexico, Turkey, Germany, the Netherlands, Canada, Sweden and Britain.
The oral arguments were presented before Chief Judge Anthony Scirica and Judge Robert Cowen, both Reagan appointees, and Judge Thomas Ambro, a Clinton appointee. All three appeared to be familiar with the arguments contained in written briefs filed by attorneys prior to the hearing. During their time on the Third Circuit all three have overturned capital convictions based on the same claim Abu-Jamal is making about race-based exclusion of jurors by the prosecution.
Abu-Jamal was represented by Attorneys Robert Bryan and Judith Ritter, along with NAACP Attorney Christina Swarns. They argued that racial bias in jury selection and improper instructions by the prosecutor to the jury during the sentencing phase of Abu-Jamal's 1982 murder trial provided grounds for a new trial. Arguing for the prosecution, Assistant District Attorney Hugh Burns presented the state's appeal of the December 2001 decision by Federal Judge William Yohn that overturned Abu-Jamal's death sentence even though he remains on death row.
Burns, who was the first to present, often referred to Abu-Jamal's court appointed attorney Anthony Jackson and his failure to file a complaint about racism in jury selection during the trial. Jackson, assigned to "represent" Mumia by Judge Albert Sabo, was disbarred in 1992 for drug abuse, yet the state is still using this attorney to prosecute Mumia 25 years later.
Jackson did file a pre-trial motion in March of 1982 requesting information on the racial composition of the entire venire (jury pool) because he strongly suspected that there would be a problem. However, his motion was denied by Sabo, and the fact that Jackson did not raise this concern again during the trial proceedings was used by Burns to argue that it should not be considered today.
The appellate judges devoted considerable time debating whether racism in jury selection could be determined if the racial makeup of the jury pool was unknown. When asked about the racial composition of the jury pool at Abu-Jamal's PCRA (Post Conviction Relief Act) hearing in 1995, Prosecutor Joseph McGill claimed he didn't remember. However, given that African Americans made up 44 percent of the population of Philadelphia in 1982, the fact that less than 15 percent (two out of fourteen) of the jurors at Abu-Jamal's trial were Black should be evidence enough.
The racial composition of the final pool of jurors is known. Twenty-eight out of forty-three were white and fifteen Black. Each side in a trial can use twenty challenges to eliminate potential jurors without stating why; however, these peremptory challenges may not be used to keep members of a particular race off the jury. McGill used 15 peremptory challenges to remove 10 of the 15 remaining Black jurors, but only five of the 28 whites.
An added factor in support of defense claims was the systematic pattern of exclusion of African Americans from juries by Philadelphia prosecutors around the time of Mumia's 1982 trial. This was addressed by Swarns, who presented oral arguments contained in an amicus brief on behalf of Abu-Jamal by the NAACP Legal Defense and Educational Fund.
The LDEF pioneered the affirmative use of civil actions to end jury discrimination. Their 31-page brief, which underscores the seriousness of the evidence of racial discrimination, can be found at www.naacpldf.org/content/pdf/jury/Abu-Jamal_v_Horn_amicus_brief.pdf.
The LDEF brief cites the 1986 case of Batson v. Kentucky, in which the Supreme Court declared that a criminal defendant who is able to prove that his trial prosecutor used peremptory challenges to exclude potential jurors on the basis of race is entitled to a new trial. Attorneys on behalf of Abu-Jamal are asking the Third Circuit Court of Appeals to consider the combination of factors that infer that his was unquestionably a racially charged case.
Case tainted with racism
Abu-Jamal is African-American and the victim was a white policeman. In the months between the Dec. 9, 1981, shooting death of Daniel Faulkner and the July 1982 trial, the local media continually emphasized the racial aspects of the case, particularly Abu-Jamal's membership in the Black Panther Party and his support of the MOVE organization, including the political prisoners known as the MOVE 9.
In his work as a journalist, Abu-Jamal often reported on prisons and police brutality and in one instance publicly challenged then Police Commissioner Frank Rizzo. He also wore his hair in dreadlocks at the time and the LDEF brief cites a Philadelphia Inquirer article from June 10, 1982, which stated, "Several prospective jurors left the courtroom Tuesday saying they were too upset and afraid to serve after being questioned by Abu-Jamal, who wears his hair in the dreadlocks style of the MOVE sect."
Swarns argued that the trial prosecutor in Abu-Jamal's case, Joseph McGill, had a history of systematically striking Black jurors. The LDEF brief notes that "a survey of homicide cases tried by Mr. McGill between September of 1981 and October 1983 reveal that he excluded prospective African-American venire persons approximately three times as often as he excluded non-black prospective jurors."
The brief points out that "A comprehensive statistical study of Philadelphia County death penalty cases tried between 1981 and 1997 reveals that, `in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51 percent of black jurors and 26 percent of non black jurors.'" Both Swarns and Bryan made reference to a notorious video training tape prepared by Philadelphia D.A. Jack McMahon advocating the systematic exclusion of African-American prospective jurors based on his experience in the D.A.'s office.
Swarns also noted that African-American jurors were struck from the jury pool because they were unemployed, divorced or single parents, yet these criteria were not applied to white jurors. Black jurors were asked if they had heard Abu-Jamal on Black radio stations, yet white jurors were not asked if they had heard Abu-Jamal's commentaries that played on NPR. One African-American man was dismissed because he admitted to having a hearing problem, while a white juror who had to turn up his hearing aid to listen to Prosecutor McGill's questions was allowed to remain.
One African-American woman whom McGill picked for the jury because "she hated Abu-Jamal" was later thrown off by Sabo when she had to attend to a dying pet. She'd asked for a brief time off but was refused. Meanwhile Sabo adjourned the proceedings for an entire afternoon so that a white, male juror could take a civil service exam.
The issue of McGill's clearly inappropriate instructions to jurors during the July 1982 sentencing phase was addressed by Ritter who also questioned the legality of McGill's three-page verdict form.
Each death sentence must rest on two findings: proof beyond a reasonable doubt of at least one aggravating circumstance that would have increased the seriousness of the crime; and the finding that there are no mitigating circumstances sufficiently substantial to call for leniency in sentencing. The verdict form in Abu-Jamal's case consisted of a list of aggravators without any instructions on their application.
While the law doesn't require jurors to be unanimous when it comes to considering mitigating circumstances (for example, positive character witnesses or the fact that the defendant in this case had never been convicted of a crime), the verdict form provided no space for jurors to indicate that some jurors felt these were relevant even if not all agreed upon them.
In fact McGill's instructions gave jurors the impression that they had to be unanimous in order for mitigating circumstances to be considered. In addition, Ritter challenged the constitutionality of McGill's charge to the jury that it was alright if they gave Abu-Jamal the death sentence because he would have "appeal after appeal."
A third appeal by Abu-Jamal's attorneys argued that his 1995 PCRA hearing was constitutionally flawed because the judge—the same Judge Albert Sabo who tried Mumia's original case—was biased in favor of the prosecution. The PCRA transcript shows that Sabo denied subpoenas of witnesses requested by the defense, cut off defense lines of questioning and threatened Abu-Jamal's attorneys with contempt of court when they challenged him. One defense witness who testified to being coerced by prosecutors to lie in the 1982 trial, found herself arrested in the courtroom while she was still on the witness stand in the PCRA hearing.
Sabo's racism and bias against Abu-Jamal is also evidenced by his comment to another judge, "I'm going to help them fry the n****r," overheard by court stenographer Terri Maurer Carter.
`The Mumia rule'
While many of the cases cited as legal precedent by Abu-Jamal's attorneys have been grounds for the reversal of a number of convictions in capital cases, that is no guarantee of a new trial for Abu-Jamal. In a May 15, article by author Dave Lindorff and columnist Linn Washington Jr. titled "Justice System on Trial as Mumia Case Reaches Climax," they point out that over the course of Abu-Jamal's more than two-decade-long appeals process, the courts have shown a willingness to create special exceptions that apply only to him.
They note an example of what might be called `The Mumia Rule' that occurred in the Pennsylvania Supreme Court. The state's top judges in 1986 overturned a death sentence where McGill had made the same closing arguments to jurors at the conclusion of a murder trial presided over by none other than Sabo.
The state's top court declared that McGill's language had "minimized the jury's sense of responsibility for a verdict of death" and ordered a new trial. Three years later in 1989, this court reversed itself when it came to upholding Abu-Jamal's conviction. Eleven years later in 1997 the court flip-flopped again and barred such language by all prosecutors "in all future trials."
In his closing arguments during the May 17th hearing, defense attorney Robert Bryan made a point of this when he listed defendants whose capital cases have come before the Third Circuit Court of Appeals—Donald Hardcastle, Arnold Holloway, Curtis Brinson and Harold Wilson—whose convictions were overturned because of racial discrimination in the proceedings. "Are we to believe that there was no racism in this highly charged case in which a political Black defendant was accused of killing a white police officer; that his is the exception to the rule?" Bryan charged.
The three white, male judges appeared to take a cavalier view when discussing the "criteria" by which they would decide whether racism was a factor in this case. An example of this was their debate over what percentage of exclusion of African Americans from a jury would constitute "bias." At one point Judge Ambro even acknowledged that the intentional exclusion of even one juror on the basis of race violates Abu-Jamal's constitutional rights.
John Parker, a Mumia supporter who flew in from Los Angeles, told Workers World that "While some have applauded the judges for their `fair attitude' at the hearing, in the first place it's ridiculous that there had to be a hearing since there is more than ample proof that Mumia did not have a fair trial. The judges read the arguments before the trial started. They should have granted a new trial automatically. In the second place, if these judges were really concerned about fairness, truth and decency, they would see more of a sense of urgency in getting Mumia free, not waiting a month or so to make a decision while Mumia remains tortured under the conditions he's placed in on death row."
The judges are expected to return a ruling within the next 45 to 90 days.
Before, during and after the two-hour-plus legal proceedings, demonstrators took to the streets, including marching up Market Street and several times around City Hall, blocking traffic for nearly 30 minutes. The march was led by a sound truck packed with youthful supporters. Along the way, shoppers, motorists and workers on their lunch hour stopped to receive material on the case, ask questions and often express their support by honking their horns and waving their fists in the air.
Widespread support was also evident at three separate events the night before, including a reception at the Friends Center for Cynthia McKinney and the French delegation, a teach-in at Drexel University sponsored by Educators for Mumia, and a jam-packed hip-hop and spoken word performance at the Rotunda featuring Immortal Technique.
This community support is a critical factor in winning freedom for Mumia Abu-Jamal. For all the legal dancing around how the federal courts should weigh the claims raised by the attorneys, many suspect that this case will not be determined on the basis of law, but on the basis of the political movement mobilizing in the streets.
Speaking at the teach-in the night before the appellate hearing and at a public forum the following evening, German author and researcher Michael Schiffman provided stark evidence that a lot of people have lied in order to put Abu-Jamal on Pennsylvania's death row and to keep him there. Schiffman presented a slide show of photos taken by press photographer Pedro Polakoff that exposes police manipulation of the 1981 crime scene and contradicts statements made by key witnesses for the prosecution and is further evidence of prosecutorial misconduct. Schiffman noted, "To bring this to light would put many careers on the line—some in very high places."
Already an on-line petition is being circulated calling on the Third Circuit Court judges to do the right thing and rule in favor of a new trial, but organizing has to be done to raise broader awareness of the facts in the case and to prepare Abu-Jamal's supporters for what comes next. Toward this end, the Philadelphia International Action Center has issued a call for a meeting on May 29 at 7 p.m. at the Calvary Church, 48th and Baltimore in Philadelphia. Call 215-724-1618.
Piette was an eyewitness to the May 17 oral argument.
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