Mumia Abu-Jamal

Von: "MUMIA ABU-JAMAL" < >

Betreff: !*"The Mumia Exception"

by J. Patrick O'Connor

Datum: Donnerstag, 7. Mai 2009 21:18

 

via: PP News

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"The Mumia Exception"

 

by J. Patrick O’Connor

http://crimemagazine.com/mumia_exception.htm

 

Since his conviction in 1982 for the murder of Philadelphia Police

Officer Daniel Faulkner, Mumia Abu-Jamal, through his numerous books,

essays and radio commentaries, has become the face of the anti-death

penalty movement in the United States and an international cause

célèbre. Paris, for example, made him an honorary citizen in 2003,

bestowing the honor for the first time since Pablo Picasso received it

in 1971. The "Free Mumia" slogan is seen and heard around the world.

Over the last 27 years he has become the most visible of the invisible

3,600 Death Row inmates in the United States.

 

The case of Mumia Abu-Jamal cries out for justice not because he is

famous but because he is innocent. Kenneth Freeman, the street-vendor

partner of Abu-Jamal’s younger brother, Billy Cook, killed Officer

Faulkner moments after Faulkner shot Abu-Jamal in the chest as he

approached the scene where Faulkner had pulled over the car Cook was

driving. When Faulkner began beating Cook with an 18-inch long

flashlight, Abu-Jamal ran from his nearby taxi to come to his

brother’s aid. After Abu-Jamal was shot and collapsed to the street,

Freeman emerged from Cook’s car, wrestled Faulkner to the sidewalk and

then shot him to death. Freeman fled the scene on foot. Numerous

witnesses told police they saw one or more black men fleeing right

after the officer was shot. A driver’s license application found in

Faulkner’s shirt pocket led the police directly to Freeman’s home

within hours of the shooting.

 

But the police did not want Freeman for this killing, releasing him

without him even having to call his attorney. The police, led by the

corrupt Inspector Alfonzo Giordano who took charge of the crime scene

within minutes of the shooting, wanted to pin Faulkner’s death on the

blacked-out, police-bashing radio reporter at the scene. Freeman they

would deal with later, meting out their own brand of street justice in

the dead of night.

 

Five days after Faulkner’s death, the Center City newsstand where

Freeman and Billy Cook operated a vending stand burned to the ground

at about 3 a.m. Freeman told a Philadelphia Inquirer reporter hours

after the arson that "there was no question in my mind that the police

are behind this." The Inquirer also quoted a Center City police

officer who was on patrol in the area that morning as saying, "It’s

entirely possible" that "certain sick members" of his department were

responsible. "All I know is when I got to the station to start my

shift at 7:30 this morning, the station house was filled with Cheshire

grins." Although the "unsolved" arson bankrupted Freeman and Cook, a

worse fate awaited Freeman.

 

On the night in 1985 when the police infamously firebombed the MOVE

home and burned down 60 other row houses in the process, incinerating

11 MOVE members including five children, Freeman’s dead body would be

found nude and gagged in an empty lot, his hands handcuffed behind his

back. There would be no police investigation into this obvious murder:

the coroner listed his cause of death as a heart attack. Freeman was 31.

 

Abu-Jamal had been well known to local police since he joined the

Philly chapter of the Black Panther Party at age 15. The next year he

was named "lieutenant of information," an appointment theInquirer ran

on its front page, picturing the young radical at Panther

headquarters. Even though the chapter would soon dissolve, both the

police and the FBI continued to monitor Abu-Jamal when he left

Philadelphia to attend Goddard College in Vermont and on his return to

Philadelphia to take up his radio career. As his career took wing,

landing him a high-profile job at Philadelphia’s public radio station,

that scrutiny intensified due to his overtly sympathetic coverage of

the radical counter-culture group MOVE. Throughout the 1970s and well

into the 1980s, police confrontations with MOVE were brutal displays

of civic discord and police abuse that culminated in the 1985

firebombing.

 

Abu-Jamal’s case has been politically charged from the beginning. By

the time he was arrested for the murder of Officer Faulkner, he was a

marked man to the police for his Black Panther Party association and

his favorable reporting of MOVE. Inspector Giordano, who detested both

Abu-Jamal and MOVE, would set the framing of Abu-Jamal in motion by

falsely claiming that Abu-Jamal had told him in the paddy wagon that

he had killed Faulkner. (Giordano would not be called by the

prosecution to reiterate his fabrication at Abu-Jamal’s trial.

Instead, on the first business day following Abu-Jamal’s sentencing,

Giordano would be "relieved" of his duties by the police department on

what would prove to be well-founded "suspicions of corruption." An FBI

probe of rank corruption within the Philadelphia Police Department –

the largest ever conducted by the U.S. Justice Department of a police

force – would lead to Giordano’s conviction four years later. The FBI

investigation would ensnare numerous other high-ranking Philadelphia

police officials and officers, many of them involved in Abu-Jamal’s

arrest and trial. Deputy Police Commissioner James Martin, who was in

charge of all major investigations, including Faulkner’s death, was

the ringleader of a vast extortion enterprise operating in City Center.)

 

The trial of Abu-Jamal was a monumental miscarriage of justice from

beginning to end, representing an extreme case of prosecutorial abuse

and judicial bias. A pamphlet published by Amnesty International in

2000 stated it had "determined that numerous aspects of Mumia Abu-

Jamal’s case clearly failed to meet minimum standards safeguarding the

fairness of legal proceedings."

 

The trial judge, Common Pleas Court Judge Albert F. Sabo, presided at

more trials that resulted in the defendants receiving the death

penalty than any judge in the nation. Of the 31 so sentenced, five won

reversals on appeal, an indication of extreme judicial bias. The

Inquirer called him "a defendant’s worst nightmare," a prominent

defense attorney referred to him as "a prosecutor in robes." A former

court stenographer said in an affidavit in 2001 that during Abu-

Jamal’s trial she overheard Sabo tell someone at the courthouse,

"Yeah, and I am going to help them fry the nigger."

 

During the third day of jury selection, Sabo stripped Abu-Jamal of his

right to represent himself and interview potential jurors despite the

fact that the Inquirer reported Abu-Jamal was "intent and business

like" in his questioning. On the second day of the trial, Sabo removed

Abu-Jamal from the courtroom for insisting that MOVE founder John

Africa replace his court appointed backup counsel, Anthony Jackson. In

turn, Sabo appointed Jackson to represent Abu-Jamal. This would put to

rout the possibility of a fair trial.

 

Abu-Jamal’s first major appeal issue developed during jury selection

when the prosecutor, Assistant D.A. Joseph McGill, used 10 or 11 of

the 15 peremptory challenges he exercised to keep otherwise qualified

blacks from sitting on this death-penalty-vetted jury. In a city with

more than a 40 percent black population at the time, Abu-Jamal’s jury

ended up with only two blacks. In 1986 – four years after Abu-Jamal’s

trial – the U.S. Supreme Court ruled in Batson v. Kentucky that it was

unconstitutional for a prosecutor to exclude potential jurors on the

basis of race. The ruling was retroactive.

 

The second major constitutional claim that would arise occurred at the

end of the guilt phase of the trial when the prosecutor referenced the

appeal process in his summation to the jury. He told the jury that if

they found Abu-Jamal guilty of murder in the first degree that "there

would be appeal after appeal and perhaps there could be a reversal of

the case, or whatever, so that may not be final."

 

Although Officer Faulkner had been killed by Kenneth Freeman, the

prosecution mounted its evidentiary case against Abu-Jamal on the

perjured testimony of a prostitute informant and a cab driver with a

suspended license for two DUIs who was on probation for throwing a

Molotov cocktail into a school yard during a school day. Both of these

witnesses had been handpicked by Giordano at the crime scene.

 

"The Mumia Exception"

 

As Amnesty International established in its 2000 pamphlet entitled

"The Case of Mumia Abu-Jamal: A Life in the Balance," his tortuous

appeal process has been fraught with "judicial machinations." Claims

that won the day in other cases were repeatedly denied him.

 

In 1989, the Pennsylvania Supreme Court turned down his first appeal

even though one of his claims was almost identical to one that had

persuaded the same court to grant Lawrence Baker a new trial in 1986.

In that case, Commonwealth v. Baker, the court overturned Baker’s

death sentence for first-degree murder on the grounds that the

prosecutor improperly referenced the lengthy appeal process afforded

those sentenced to death. That prosecutor – Joseph McGill – was the

same prosecutor who used similar – almost verbatim – language in his

summation during both the guilt and sentencing phases of Mumia’s

trial. The judge who failed to strike the language in the Baker case

was the same judge who presided at Mumia’s trial, Common Pleas Court

Judge Albert F. Sabo.

 

The State Supreme Court ruled in Baker that the use of such language

"minimize[ed] the jury’s sense of responsibility for a verdict of

death." When Abu-Jamal’s appeal included the very same issue, the

court reversed its own precedent in the matter, denying the claim in a

shocking unanimous decision.

 

A year later, in Commonwealth v. Beasley, the Pennsylvania Supreme

Court reinstated the death sentence of Leslie Beasley, but exerted its

supervisory power to adopt a "per se rule precluding all remarks about

the appellate process in all future trials." This rule not only

reinstated the Baker precedent but it ordered all prosecutors in the

state to refrain once and for all from referencing the appellate

process in summations to the jury. The court could have made this new

rule retroactive to Mumia’s case, but did not.

 

As Amnesty International declared in its pamphlet about the case, the

Pennsylvania Supreme Court’s judicial scheming leave "the disturbing

impression that the court invented a new standard of procedure to

apply to one case only: that of Mumia Abu-Jamal," Temple University

journalism professor Linn Washington aptly dubs this and subsequent

court decisions denying Mumia a new trial "the Mumia exception."

 

Abu-Jamal’s Post-Conviction Relief Act hearing in 1995 was doomed from

the beginning when Judge Sabo – the original trial judge – would not

recuse himself from the case and the Pennsylvania Supreme Court would

not remove him for bias.

 

Abu-Jamal’s federal habeas corpus appeal – decided by Federal District

Judge William Yohn in 2001 – should have resulted in at least an

evidentiary hearing on Abu-Jamal’s Batson claim that the prosecutor

unconstitutionally purged blacks from the jury by using peremptory

strikes to exclude 10 or 11 otherwise qualified black jurors from

being empanelled. Abu-Jamal’s attorneys had included a study conducted

by Professor David Baldus that documented the systematic use of

peremptory challenges to exclude blacks by Prosecutor McGill in the

six death-penalty cases he prosecuted in Common Pleas Court in

Philadelphia. Abu-Jamal’s trial was one of the six trials studied by

Baldus. Judge Yohn barred the study on the erroneous grounds that the

study was not from a relevant time period when, in fact, it was

completely relevant. Judge Yohn’s error was egregious and could have

been easily avoided if he had held one evidentiary hearing on that

defense claim. But during the two years that Judge Yohn considered Abu-

Jamal’s habeas appeal, he held no hearings.

 

The U.S. Court of Appeals for the Third Circuit should have corrected

that district court mistake by remanding Abu-Jamal’s case back to

Judge Yohn to hold the evidentiary hearing on the Batson claim, but in

another example of the "Mumia exception," the court instead continued

the long and tortured denial of Mumia’s right to a fair trial. In a 2

to 1 decision released on March 27, 2008 that reeked of politics and

racism, the court ruled that Abu-Jamal had failed to meet his burden

in providing a prima facie case. He failed, the majority wrote,

because his attorneys were unable to establish the racial composition

of the entire jury pool.

 

In the decision written by Chief Judge Anthony Scirica, the court

stated that "Abu-Jamal had the opportunity to develop this evidence at

the PCRA evidentiary hearing, but failed to do so. There may be

instances where a prima facie case can be made without evidence of the

strike rate and exclusion rate. But, in this case [i.e., "the Mumia

exception" is in play], we cannot find the Pennsylvania Supreme

Court’s ruling [denying the Batson claim] unreasonable based on this

incomplete record."

 

In a nutshell, the majority denied Mumia’s Batson claim on a

technicality of its own invention, not on its merits. It also broke

with the sacrosanct stare decisis doctrine – the principle that the

precedent decisions are to be followed by the courts – by ignoring its

own previous opposite ruling in the Holloway v. Horn case of 2004 and

the Brinson v. Vaughn case of 2005. It is a general maxim that when a

point has been settled by decision, it forms a precedent which is not

afterwards to be departed from. In a Ninth Circuit Court of Appeals

ruling in 1989 in a case entitled United States v. Washington, the

decision stated that an appeal court’s panel is "bound by decisions of

prior panels unless an en banc decision, Supreme Court decision, or

subsequent legislation undermines those decisions." None of those

variables were in play when the Third Circuit Court majority ruled

against Mumia’s Batson claim.

 

Judge Thomas Ambro’s dissent was sharp: "…I do not agree with them

[the majority] that Mumia Abu-Jamal fails to meet the low bar for

making a prima facie case under Batson. In holding otherwise, they

raise the standard necessary to make out a prima facie case beyond

what Batson calls for."

 

In other words, the majority, in this case alone, has upped the ante

required for making a Batson claim beyond what the U.S. Supreme Court

stipulated. When ruling in Batson in 1986, the U.S. Supreme Court did

not require that the racial composition of the entire jury pool be

known before a Batson claim may be raised. The high court ruled that a

defendant must show only "an inference" of prosecutorial

discrimination in purging potential jurors. Prosecutor McGill’s using

10 or 11 of the 15 peremptory strikes he deployed is just such an

inference – and an extremely strong one. McGill’s strike rate of over

66 percent against potential black jurors is in itself prima facie

evidence of race discrimination. Prima facie is a Latin term meaning

"at first view," meaning the evidence being presented is presumed to

be true unless disproved.

 

In commenting on Holloway v. Horn, a Batson-type case with striking

similarities to Abu-Jamal’s claim, Judge Ambro – the lone Democrat-

appointed judge on the three judge panel – demonstrated just how

disingenuous the panel’s ruling against Abu-Jamal’s Batson claim was.

"In Holloway, Judge Ambro wrote in his 41-page dissent, "we emphasized

that ‘requiring the presentation of [a record detailing the race of

the venire] simply to move past the first state – the prima facie

stage – in the Batson analysis places an undue burden upon the

defendant.’ There we found the strike rate – 11 of 12 peremptory

strikes against black persons – satisfied the prima facie burden." In

Holloway, the Third Circuit ruled that the Pennsylvania Supreme

Court’s decision denying Holloway’s Batson claim was "contrary to" and

an "unreasonable application" of the Batson standard.

 

In fact, in rendering both its Holloway and Brinson decision, the

Third Circuit specifically rejected the requirement that a petitioner

develop a complete record of the jury pool. In making its ruling in

Abu-Jamal’s appeal, it reversed itself to make the pretext of an

incomplete jury record his fatal misstep. Basing its ruling against

Abu-Jamal’s Batson claim on this invented pretext demonstrated how

desperate the majority was to block Abu-Jamal’s Batson claim. What the

majority was implying was that Abu-Jamal’s jury pool may well have

consisted of 60 or 70 percent black people and that therefore the

prosecutor’s using 66 percent of his strikes to oust potential black

jurors was statistically normal and did not create a prima facie case

of discrimination. This hypothesis is, of course, absurd on its face.

Blacks have been underrepresented on Philadelphia juries for years –

and remain so today. What was likely was that the jury pool at Abu-

Jamal’s trial was at least 70 percent white.

 

The Third Circuit – if it had followed its own precedent – would have

found the Pennsylvania Supreme Court’s ruling denying Abu-Jamal’s

Batson claim "contrary to" and an "unreasonable application" of the

Batson standard and remanded the case back to Federal District Court

Judge Yohn to hold an evidentiary hearing to determine the

prosecutor’s reasons for excluding the 10 potential black jurors he

struck. If that hearing satisfied Judge Yohn that all of the

prosecutor’s reasons for striking potential black jurors were race

neutral, the Batson claim would fail. If, conversely, that hearing

revealed racial discrimination on the part of the prosecutor during

jury selection – even if only concerning one potential juror – Judge

Yohn would have been compelled to order a new trial for Abu-Jamal.

 

Abu-Jamal’s final opportunity for judicial relief was filed with the

U.S. Supreme Court in November of 2008 in the form of a Petition for a

Writ of Certiorari. On February 4, the high court docketed and

accepted that filing. According to Abu-Jamal’s lead attorney, Robert

Bryan of San Francisco, "The central issue in this case is racism in

jury selection. The prosecution systematically removed people from

sitting on the trial jury purely because of the color of their skin,

that is, being black."

 

For at least two compelling reasons, it appeared that the U.S. Supreme

Court would grant Abu-Jamal’s petition. In its last term, the high

court expanded its 1986 Batson ruling in its Synder v.

Marylanddecision to warrant a new trial if a minority defendant could

show the inference of racial bias in the prosecutor’s peremptory

exclusion of one juror. Under Batson, the defense needed to show an

inference – i.e., a pattern – of racial bias in the overall jury

selection process. Ironically, the Supreme Court’s 7-2 decision

strengthening and expanding Batson’s reach was written by Justice

Samuel Alito, most recently of the Third Circuit Court of Appeals.

 

The second reason was that the Third Circuit’s ruling denying Abu-

Jamal’s Batson claim undermined both the Batson and Synder decisions

by placing new restrictions on a defendant’s ability to file a Batson

claim. The Third Circuit ruling against Abu-Jamal had the effect of

creating new law by tampering with a long-established Supreme Court

precedent.

 

As a result, there seemed to be something more than a remote

possibility that the Supreme Court would agree to grant Abu-Jamal’s

writ.

 

A Writ of Certiorari is a decision by the Supreme Court to hear an

appeal from a lower court. Supreme Court justices rarely give a reason

why they accept or deny Cert. Although all nine justices are involved

in considering Cert Petitions, it takes only four justices to grant a

Writ of Certiorari, even if five justices are against it. This is

known as "the rule of four."

 

Despite needing only four votes to have his Batson claim argued, the

Supreme Court on April 6, 2009 tersely denied Abu-Jamal’s request for

a writ. The so-called "liberal block" of Justices Stevens, Ginsberg,

Souter, and Breyer disintegrated, yielding to the awesome political

power of the "Mumia exception."

 

Abu-Jamal – who turned 55 on April 24, 2009 – will, barring the most

unlikely intervention by a future governor of Pennsylvania, spend the

rest of his life in prison for a crime he did not commit.

 

 

 

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