February 11, 2010
By Linn Washington Jr.
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's case.
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.
Linn Washington Jr. is a columnist for The Philadelphia Tribune who's followed the Abu-Jamal case since December 1981. Washington, a graduate of the Yale Law Journalism Fellowship, coined "The Mumia Exception" phrase.
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