This Legal Update is made on behalf of my client, Mumia Abu-Jamal, who remains on Pennsylvania's death row. Many people have inquired as to our reaction and position concerning recent legal developments, and what will happen now. This should answer many of those questions and alleviate some of the confusion.
U.S. Court of Appeals for the Third Circuit, Philadelphia
As widely reported in the media, the U.S. Court of Appeals issued its long-awaited decision on March 27, 2008. (Abu-Jamal v. Horn, Nos. 01-9014, 02-9001, 2008 WL 793877 (3rd Cir. 2008).) Mumia and I had legal conferences that day, and we have been in frequent contact since including a death-row meeting earlier this week and a discussion this evening. We view the opinion of the three-judge panel as a mixed bag with some good, some very wrong, and a remarkable dissenting opinion by a judge on racism that gives us great hope for eventual victory.
A new jury trial has been ordered by the federal court on the question of whether Mumia should be sentenced to life or death, due to the trial judge's unconstitutional and misleading instructions to the jury. It is a positive step in any capital case when a court finds that the death penalty was wrongfully imposed. Mumia is pleased with this part of the ruling because it could help others on death rows across the U.S. The prosecution now has various options including seeking reconsideration by the federal court and petitioning the U.S. Supreme Court to have the death sentence remain intact.
It was a great disappointment that the federal court rejected our quest for a reversal of the conviction and a new trial on the question of guilt and innocence. To say that Mumia and I are unhappy with this would be an understatement, for the decision flies in the face of the United States Constitution and case precedent. The facts are that the prosecutor did engage in racism during jury selection, and made a false and misleading argument to the jury which turned the concept of reasonable doubt and presumption of innocence on its head. The trial judge was biased and bigoted, even stating in reference to my client that he was "going to help'em fry the n----r." Unfortunately the court used against Mumia the failings of the lawyers who represented him in state post-conviction and federal habeas corpus proceedings. Their mistakes should not serve as an excuse to rationalize away the fundamental constitutional violations that occurred in this case.
The silver lining of this ruling is that Judge Thomas L. Ambro wrote a 41-page dissent on the racism-in-jury-selection issue. This brilliant opinion began:
Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution. See Batson v. Kentucky, 476 U.S. 79, 84-86, 99 n. 22, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This simple justice principle was reaffirmed by our Supreme Court this past week. Snyder v. Louisiana, No. 06-10119, 2008 WL 723750, at *4 (Mar. 19, 2008).
Justice Ambro concluded that everyone is entitled to a fair and impartial trial by a jury of his or her peers. As Batson reminds us, "[t]he core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of ... race." Id. at 97-98. I fear today that we weaken the effect of Batson by imposing a contemporaneous objection requirement where none was previously present in our Court's jurisprudence and by raising the low bar for a prima facie case of discrimination in jury selection to a height unattainable if enough time has passed such that original jury records are not available. In so holding, we do a disservice to Batson. I respectfully dissent.
Shortly before the decision, we brought the Snyder decision to the attention of the federal court in a Notice of Supplemental Authority. I wrote on March 23, 2008:
In Snyder v. Louisiana, ___ U.S. ___, 2008 WL 723750 (Mar. 19, 2008), the judgment of the Louisiana Supreme Court was reversed with the United States Supreme Court holding that the trial court should have disallowed a peremptory challenge based upon race because it violated Batson v. Kentucky, 476 U.S. 79 (1986). Justice Alito, in writing for the majority, reaffirmed that evidence of discriminatory intent should be taken from a broad array of factors. Citing Miller-El v. Dretke, 545 U.S. 231, 239 (2005), he pointed out that "in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted ..." Snyder underscores the point made by Appellee and Cross-Appellant, Mr. Abu-Jamal, urged in oral argument on May 17, 2007, and in briefing, that the existence of a prima facie Batson claim depends upon, inter alia, the connection between race and the pattern of strikes, the nature of the case, comments made during jury selection, and the time and place of the trial. Brief of Appellee and Cross-Appellant, Mumia Abu-Jamal, July 26, 2006, at 17-46; Fourth-Step Reply Brief of Appellee and Cross-Appellant, Mumia Abu-Jamal, Oct. 23, 2006, at 11-58.
The high court also reiterated that "the Constitution forbids striking even a single prospective juror for a discriminatory purpose." Snyder v. Louisiana, 2008 WL 723750 at *4 (quoting United States v. Vasquez-Lopez, 22 F.3d 900, 902 (C.A.9 1994)). This too was pointed out in oral argument and briefing. Brief of Appellee and Cross-Appellant, Mumia Abu-Jamal, supra, at 41-42. Finally, the case recognized that an "inference of discriminatory intent" is supported when the prosecution's proffered reasons for striking African Americans do not apply even-handedly to non-African Americans. Snyder v. Louisiana, 2008 WL 723750 at *8. Again, this point was presented in oral argument and our briefing. See, e.g., Brief of Appellee and Cross-Appellant, Mumia Abu-Jamal, supra, at 32-36.
The "Mumia Exception"
The latest denial of a new trial to Mumia has been referred to as part of the "Mumia Exception." David Lindorff, a noted investigative journalist and author of Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal, wrote in the Philadelphia Inquirer on April 2, 2008, that the "courts have altered the rules just to keep Abu-Jamal on course for death." What Professor Linn Washington earlier dubbed the "Mumia Exception" could not have been more on target.
Reaction of the District Attorney of Philadelphia
The District Attorney appeared livid that the federal court had ordered a new penalty-phase jury trial. At a press conference on March 27, 2008, the day of the decision, she vowed that her office will continue pursuing the execution of my client. Sadly, the prosecution could not resist distorting the truth as it has from the outset over a quarter of a century ago. The DA falsely said that the court "finally decided in its wisdom ... that Mr. Jamal was guilty." That is not what the U.S. Court of Appeals found and is nonsense; there was no retrial or verdict. That is not what appellate courts do. Rather, the federal decision dealt with issues of law and procedure. The prosecution's suggestion that my client was found "guilty" of anything on appeal is absurd and patently false.
Where we go from here
The dissent of Justice Ambro is a light in the darkness, a roadmap as to where we go from here. On April 9, 2008, the U.S. Court of Appeals granted my 45-day Motion for Extension of Time To File Petition for Rehearing and Rehearing En Banc. The rehearing petition, now due on May 27, 2008, will be seeking review of the case by all the judges in the Third Circuit. The basis will be that "the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the 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." (Fed. R. App. P. 35(b)(1).) If unsuccessful, we will proceed to the Supreme Court.
The issues in this case concern the right to a fair trial, the ongoing struggle against the death penalty, and the political repression of a courageous author and journalist. Based upon three decades of successfully litigating murder cases involving the death penalty, I am convinced that we can win an acquittal upon a new jury trial. My goal is his acquittal upon retrial. I intend to see Mumia go home to his family. I will not rest until that occurs.
Mumia is still on death row and in great danger. His life is hanging in the balance. We must remember that racism, fraud, politics, and unfairness are threads that have run through this case since the beginning. As reflected by the comments at its recent press conference, the prosecution has learned little from its shameful behavior in this case. The misconduct continues, and the prosecutorial wrongs of the past are thus visited on the present.
Finally, we are grateful for all those who do so much to bring the injustice in this case to public attention, whether it be through demonstrations, writing to newspapers, meetings, or circulating information on the Internet. This is all important. We are of one voice in this campaign for justice: Free Mumia!
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