On May 17, 2007, we presented oral argument in the U.S. Court of Appeal of the Third Circuit, Philadelphia, on behalf of Mumia Abu-Jamal. Abu-Jamal v. Horn, U.S. Court of Appeals Nos. 01-9014, 02-9001 (death penalty). It was an extraordinary day in my experience of three decades of death penalty litigation. This was certainly the most promising legal proceeding since the arrest of my client over 25 years ago. At last there is light at the end of the tunnel. Even though there is no way to know when or how the federal court will rule, the three-judge panel's numerous questions certainly reflected their concern about what the prosecution had done wrong. A decision could be forthcoming anytime from mid-July to the fall.
It was encouraging to see the courtroom packed with supporters for my client. A large crowd also waited outside during the hearing. There were international observers from various countries including France, and a prominent human rights lawyer from Berlin who is also a member of the German parliament.
The focus of the federal court was on issues concerning the death penalty, misrepresentations by the prosecutor in his argument to the jury, and his racism in jury selection. The atmosphere was far different than previously experienced in this case, as reflected by the judges' overriding concern regarding misconduct by the prosecution. Early on one judge asked opposing counsel in reference to the prosecutor's misrepresentations to the jury during the 1982 trial: "Isn't that a denial of one of the rights secured by the Bill of Rights?" I therefore concluded the hearing by pointing out that even though it is judicially recognized that the Philadelphia District Attorney employed racism in cases both before and after that of Mr. Abu-Jamal, can anyone seriously believe that racism was not at work in this case involving an outspoken journalist who was a former member of the Black Panther Party and a supporter of MOVE's right to exist.
Even though Mr. Abu-Jamal began writing me in 1986, it was not until 2003 that I was finally able to agree to take over as lead counsel. Since then my focus has been on raising his level of credibility, convincing courts to give serious consideration to the many constitutional violations what have occurred in this complex case, and overcoming the errors of the past case lawyers. To date we have been largely successful. Interestingly, every motion I have filed since briefing was ordered federally has been granted.
Oral argument aimed to calmly and candidly dealing with the questions and concerns of the judges. It was not a time for political speeches or emotional-type arguments which I have successfully made before juries in countless murder cases. All possible arguments with supporting legal authority were previously made in our extensive written briefs. Supporting us with excellent briefs and argument was the NAACP's Legal Defense Fund, and the National Lawyers Guild, both of whom I brought into the case some years ago.
People frequently ask what can happen now. The federal court's choices involve various scenarios. These include remanding the case back to the U.S. District Court for further hearings, or granting an entirely new trial, or ordering a new jury trial limited to the penalty issue of life or death, or denying all relief with the case headed towards an execution. Our objective is a reversal of the conviction and death sentence, and the granting of a new trial.
The primary problem we have experienced in Mr. Abu-Jamal's case, in additional to prosecution misconduct and racism, has been mistakes made by prior counsel ranging from not pursing an adequate investigation to failing to raise certain fundamental issues, e.g., judicial bias at trial. This has been evident in the federal appeal, accentuated by some of the judges' questions on May 17. We have taken all possible steps to overcome these shortcomings.
The issues in the case of Mr. Abu-Jamal concern the right to a fair trial, the struggle against the death penalty, and the political repression of an outspoken journalist. Racism and politics are threads that have run through this case since his 1981 arrest. The issues under consideration, all of great constitutional significance, are:
Whether Mr. Abu-Jamal was denied the right to due process of law and a fair trial under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution because of the prosecutor's "appeal-after-appeal" argument which encouraged the jury to disregard the presumption of innocence and reasonable doubt, and err on the side of guilt.
Whether the prosecution's use of peremptory challenges to exclude African Americans from sitting on the jury violated Mr. Abu-Jamal's rights to due process and equal protection of the law under the Sixth and Fourteenth Amendments, and contravened Batson v. Kentucky, 476 U.S. 79 (1986).
Whether the jury instructions and verdict form that resulted in the death penalty deprived Mr. Abu-Jamal of rights guaranteed by the Eight and Fourteenth Amendments to due process of law, equal protection of the law, and not to be subjected to cruel and unusual punishment, and violated Mills v. Maryland, 486 U.S. 367 (1988), since the judge precluded the jurors from considering any mitigating evidence unless they all agreed on the existence of a particular circumstance.
Whether Mr. Abu-Jamal was denied due process and equal protection of the law under the Sixth and Fourteenth Amendments during post-conviction hearings as the result of the bias and racism of Judge Albert F. Sabo which included the comment that he was "going to help'em fry the nigger."
It is a pleasure to announce that we are once more engaged in briefing before the Pennsylvania Supreme Court. On June 1, 2007, we filed on behalf of Mr. Abu-Jamal the opening Brief for Appellant. Commonwealth v. Abu-Jamal, Pa. Sup. Ct. No. 485, Capital Appeals Div. (death penalty). The issues presented include the prosecution falsely manipulating eyewitness testimony, and its use of fabricated evidence. There are procedural problems which occurred before I entered the case, these are issues of such constitutional importance that they must be aggressively pursued. A copy of our brief is attached.*
I am in this case to win a new and fair trial for Mr. Abu-Jamal. That is his and my wish. The goal is for his freedom following a retrial. Nevertheless, Mr. Abu-Jamal remains in great danger. If all is lost, he will be executed.
Your interest in this struggle for human rights and against the death penalty is appreciated.
Yours very truly,
Robert R. Bryan
[Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, California 94123-4117]
Lead counsel for Mumia Abu-Jamal
* Download the brief at http://www.freemumia.com/pdfs/june2007.pdf