|There will be a press conference on Monday, March 31, 2008, 11 am at the
Federal Bldg, 6th & Market. Pam Africa and International Concerned Family and
Friends of Mumia Abu-Jamal will fully address this latest bogus decision of
Please try and attend!
Monday, March 31, 2008
6th & Market
MUMIA COURT DECISION:
Monday, March 31 Press Conference in Philadelphia, 11am,
6th & Market
Monday, March 31 Emergency Planning Meeting, 6pm, Calvary
Church, 48th & Baltimore
According to AP reports today, the Third Circuit of
Appeals Court ruled that while Mumia's guilty conviction
should not be overturned, that he deserved a resentencing
hearing due to flawed instructions that the original jury
received during the original trial, upholding the federal
district's court ruling in December 2001. One article
goes on to say, "If prosecutors don't want to give him a
new death penalty hearing, Abu-Jamal would be sentenced
automatically to life in prison" This is a terrible
ruling but should come to no surprise.
There is no victory in this ruling! It is appealible, but
only to the Supreme Court, full of right-wing Bush
A major demonstration is being planned for Sat., April 26
in Philadelphia. There will be a press conference at the
Federal Building at 6th & Market Sts. at 11am on Monday,
March 31 and also an Emergency Mobilizing Meeting at 6pm
on Monday, March 31 at Calvary Church, 48th & Baltimore to
plan for April 26th and other events.
We need everyone's participation now, more than ever!
Free Mumia and all political prisoners!!!
Third Circuit Court Rejects Abu-Jamal Appeal: The "Mumia Exception"
by Dave Lindorff, OpEdNews.com
After spending almost a year’s time deliberating following a hearing last May 17, a three-judge panel of the Third Circuit Court of Appeals in
Philadelphia has shot down all three claims by death row prisoner Mumia Abu-Jamal challenging his conviction for the 1981 murder of Philadelphia
Police Officer Daniel Faulkner.
At the same time, the appeals court upheld a 2001 decision by Federal District Judge William Yohn that had overturned former Black Panther and
Philadelphia journalist Abu-Jamal’s death sentence, agreeing with the lower court judge that the form used by the trial jury in 1982 to establish
whether jurors felt there were any mitigating circumstances was flawed, and could have left panelists mistakenly believing that before they could
consider any such mitigating factors in their deliberations, they would all have to agree such a factor existed. In fact, by law if even one juror believes
that there is a mitigating factor, that factor can be considered by jurors in deciding on death or life in prison.
The court was unanimous in rejecting Abu-Jamal’s claim that the trial judge, Albert Sabo, had been prejudiced against him and in favor of the
prosecution when he presided over a Post-Conviction Relief Act hearing in 1995-6. It was also unanimous in rejecting Abu-Jamal’s claim that
Prosecutor Joseph McGill had improperly diminished the jury’s sense of responsibility during the conviction phase of the trial by telling them that their
decision would not be final as there would be “appeal after appeal.” The appellate judges didn’t say that McGill’s statement was proper, or even that
it might not have impacted jurors’ decision on guilt, but rather agreed that by court precedent they had only used evidence of such prosecutorial
misconduct to overturn death sentences, not convictions. (Arguably, in the unlikely event that the Philadelphia DA were successful in getting the US
Supreme Court to reverse the Third Circuit and reimpose Abu-Jamal’s death penalty, he could go back and appeal the sentence based upon this
statement to the jury by McGill.)
But on Abu-Jamal’s third claim—that the prosecution had improperly violated his Constitutional right to a fair trial by his peers by barring 10 qualified
African-American potential jurors from serving on his jury through the use of what are called “peremptory challenges”—there was a dissent, making
the vote 2-1.
Judge Thomas Ambro, a Clinton appointee to the bench—chastised his two colleagues, Chief Judge Anthony Scirica and Judge Robert Cowan-- both
Reagan appointees--saying that they were applying a different, and unattainable standard of proof to Abu-Jamal than they had been using for other
cases brought before them.
In rejecting Abu-Jamal’s claim of racial bias in jury selection—something known as a Batson violation, after the Supreme Court’s 1986 decision in
Batson v Kentucky—the court majority wrote that Abu-Jamal had not made a timely protest over prosecutor McGill’s rejection of 10 black jurors
without cause (McGill used 15 of his 20 available peremptory challenges to remove at least 10 qualified black and 5 qualified white jurors). The
majority also proposed that because Abu-Jamal had not provided the court with the racial makeup of the jury pool, it was impossible to know whether
perhaps two-thirds of that pool might have been black, giving an “innocent explanation” to McGill’s 66.7% black rejection rate. (Local attorneys scoff
at such a notion, saying they've never seen a jury pool so skewed racially.)
Judge Ambro blasted this logic, saying that the US Supreme Court had established that “excluding even a single person from a jury because of race
violated the Equal Protection Clause of our Constitution.” Significantly, the nation's High Court just affirmed that position March 19 with a powerful 7-
2 ruling in a Louisiana death penalty case (Snyder v. Louisiana).
Judge Ambro then accused his robed colleagues of having a double standard, saying “Our Court has previously reached the merits of Batson claims
on habeas review in cases where the petitioner did not make a timely objection during jury selection—signaling that our Circuit does not have a
federal contemporaneous objection rule—and I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.” He added, “Why
we pick this case to depart from that reasoning I do not know.”
Going further, Judge Ambro writes, “We have repeatedly said that a defendant can make out a prima facie case for jury-selection discrimination by
showing that the prosecution struck a single juror because of race…In fact, in United States v. Clemons, we explained that 'striking a single black
juror could constitute a prima facie case even when blacks ultimately sit on the panel and even when valid reasons exist for striking other blacks.’...
Yet the majority focuses on the absence of information about the racial composition and total number of the venire[jury pool], claiming that this
statistical information—from which one can compute the exclusion rate—is necessary to assess whether an inference of discrimination can be
discerned in Abu-Jamal’s case. Such a focus is contrary to the nondiscrimination principle underpinning Batson, and it conflicts with our Court’s
precedents, in which we have held that there is no “magic number or percentage [necessary] to trigger a Batson inquiry,”
One thing Judge Ambro didn’t mention in his 41-page dissent was the evidence presented by Abu-Jamal to the court of a clear history of deliberate
race purging of juries by the Philadelphia DA’s office, and by prosecutor McGill in particular. That evidence, developed by academic researchers and
by attorneys at the Federal Defenders’ Office in Philadelphia, show that between 1977 and 1986, while Ed Rendell was Philadelphia’s District
Attorney, local prosecutors used peremptory challenges to strike qualified blacks from juries in death penalty cases 58 percent of the time, compared
to 22 percent of the time for qualified whites. During the same period of time, prosecutor McGill himself struck qualified black jurors 74 percent of the
time in death penalty cases he tried, compared to 25 percent of qualified white jurors. This is seriously damning evidence of racial bias in jury
Interestingly, one of the Third Circuit precedents referred to by Judge Ambro was a 2005 case heard by Judge Sam Alito, now elevated to the
Supreme Court. In that case, Brinson v Vaughn, Alito overturned the appellant’s death penalty conviction, writing that "...a prosecutor may violate
Batson even if the prosecutor passes up the opportunity to strike some African Americans jurors." Alito further stated in that decision that "a
prosecutor's decision to refrain from discriminating against some African Americans does not cure discrimination against others." (Significantly, the
High Court’s latest Snyder decision opinion was also penned by Justice Alito, who shows himself to be a passionate opponent of racism in jury
What appears to be happening here, and what obviously upset Judge Ambro, is that the other two judges, Scirica and Cowan, are demonstrating
another example of what my colleague,Philadelphia journalist Linn Washington, has dubbed the “Mumia Exception.”
Washington has noted that on several occasions during Abu-Jamal’s epic 26-year battle to survive Pennsylvania’s death row machine, the state’s
courts have altered the rules to keep him locked up and on course for execution. Pennsylvania’s top court in 1986 overturned a death sentence
where McGill, the same prosecutor in Abu-Jamal’s case, had made the same closing statement to jurors at the conclusion of a murder trial presided
over by Judge Sabo, the same trial judge who presided in Abu-Jamal’s case. The court, declaring that the prosecutor’s language had “minimize[ed]
the jury’s sense of responsibility for a verdict of death,” had ordered a new trial that time. Three years later in 1989, despite this precedent and
presented with an identical situation involving the same characters, the same court reversed itself, though, upholding Abu-Jamal’s conviction. Eleven
years later, Pennsylvania’s highest court reversed track again, barring such language by prosecutors “in all future trials,” but not making their
decision retroactive to include Abu-Jamal.
Another example of this judicial “special handling” where Abu-Jamal’s case is concerned, involves the right of allocution – the right of the convicted to
make a statement without challenge before sentencing. One month before initially upholding Abu-Jamal’s conviction in March 1989, the Pennsylvania
Supreme Court issued a ruling declaring the right of allocution to be of “ancient origin” and saying that any failure to permit a defendant to plead for
mercy demanded reversal of sentence. Abu-Jamal’s appeal claimed Judge Sabo, by allowing the prosecutor to question Abu-Jamal on the stand after
the convicted defendant had made just such a statement to jurors, violated his allocution right during the ’82 trial. The state’s high court, however –
for the first time in its history – ruled that the “right of allocution does not exist in the penalty phase of capital murder prosecution.”
This flip-flopping on allocution, on acceptable language for prosecutors and on other legal precedents all led Amnesty International to conclude in its
2001 report on Abu-Jamal’s case that the state’s highest court improperly invents new standards of procedure “to apply it to one case only: that of
Justice, that is to say, has not always been blind in this case. A “Mumia Exception” had been established.
And now this stain on Pennsylvania jurisprudence appears to have migrated to the federal court system, at the Third Circuit.
Says Washington, “This decision once again shows that in the Abu-Jamal case, evidence is not important. As with the Pennsylvania courts, this
federal court ignored its own precedents in reaching a result that is contrary to the facts and to the law. The reason for this is what Amnesty
International pointed out in their 2001 report: The Abu-Jamal case is hopelessly polluted by politics, which precludes any justice in this case.”
Robert Bryan, Abu-Jamal’s lead attorney, said the third Circuit Court’s upholding of the death penalty reversal was a “major victory,” but he said,
“The fact that the court majority turned a blind eye to the racially discriminatory practices of the DA’s office is outrageous.”
With all three of Abu-Jamal’s habeas claims for an overturning of his conviction rejected, his case now moves to the US Supreme Court, with a
possible stop along the way for a hearing by the full Third Circuit bench. Abu-Jamal’s attorney Bryan says he plans to file a request for such an en
banc reconsideration of the ruling by the full Third Circuit within the next two weeks. Neither the full Third Circuit, nor the Supreme Court, are
obligated to hear the case, which would make the current Third Circuit decision the final word on his conviction.
Bryan said, “Judge Ambro’s dissent in the Batson decision was very powerful, and we will certainly be using it in our arguments to the full Third Circuit
and to the Supreme Court."
As for the overturned death penalty ruling, which the DA’s office will certainly also appeal to the High Court, should it be sustained, there are two
options. The DA could decide to leave things at that—something McGill, interviewed shortly after Judge Yohn’s initial ruling, said was being
considered—in which case Abu-Jamal would face life in prison with no possibility of parole. He would not, however, have to spend more time in the
near solitary confinement torture of Pennsylvania’s maximum-security death row, but would be moved to a regular prison. Alternatively, the DA could
decide to go to a Philadelphia court and impanel a new jury to conduct just a sentencing hearing, in hopes of winning a new death penalty. Such a
limited trial would not address guilt or innocence--only punishment.
Given fairer rules regarding jury selection, and the larger minority population in today’s Philadelphia, and Abu-Jamal's having better legal
representation, it is hard to imagine the DA succeeding in convincing 12 fairly chosen Philadelphia jurors to sentence journalist him to death for a
crime for which he has already served 26 hard years’ time. Moreover, because a defendant is entitled to subpoena witnesses in his defense, the DA
would run the risk that Abu-Jamal could use such a trial to introduce new evidence of innocence, opening the door to further appeals of his
underlying conviction. For these reasons, an effort to win a new death sentence seems unlikely.
The legal stymieing of Abu-Jamal’s efforts to win a new trial comes at a time of growing questions regarding his guilt, or at least the veracity of the
witnesses and the evidence used to convict him on a first-degree murder charge.
Last year, photos were discovered that had been taken by a freelance news photographer of the crime scene on the south side of Locust Street at
13th Street in Philadelphia’s Center Cityonly minutes after police had arrived and after the wounded Abu-Jamal and the clinically dead Faulkner had
been taken off to Jefferson Hospital. These photos show police tampering with evidence, including the both Abu-Jamal’s and Faulkner’s guns as well
as the officer’s police hat. Photos of the bloody spot on the sidewalk where Faulkner lay as he was shot by a bullet to the face at close range show
no sign of craters where three other shots Abu-Jamal is alleged to have fired from a position astride the officer and that missed should have left their
marks in the concrete, raising questions about the testimony of two alleged eyewitnesses to the shooting. Those same photos also show no taxicab
parked behind Faulkner’s parked squad car in the place one of those witnesses, Robert Chobert, claimed he had been stopped. The missing cab
raises questions about the veracity of Chobert’s claim to have witnessed Faulkner’s murder.
Other witnesses are still coming forward since the trial, who also challenge the prosecution’s story, but without a new trial, it is not clear that their
evidence will ever be heard.
Abu-Jamal’s attorney says Abu-Jamal told him this morning that he was “disappointed” in the result, but that he “hopes the reversal of the death
penalty will help others on death row, and says, 'The struggle continues!’”
DAVE LINDORFF is author of "Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal" (Common Courage Press, 2003). His
work is available at www.thiscantbehappening.net
This is the statement from Germany:
Justice Denied: A Political Decision that Cannot Be Allowed to Stand
Michael Schiffmann for the
German Network Against the Death Penalty and to Free Mumia Abu-Jamal
On Thursday, March 27, the 3rd U.S. Court of Appeals decided to lift the death sentence against Mumia Abu-Jamal and deny him a new trial.
The lifting of the death sentence is a big victory for the movement against the death penalty and for the life and freedom of Mumia.
That the court denied Mumia a new trial is a bitter defeat.
The defense will now seek a decision by the full court instead of the three judge panel that handed down the March 27 decision.
So all is not lost and the struggle continues.
A hopeful sign was that one of the three judges dissented and wrote a 41-page commentary in which he criticized the decision of his colleagues.
In its decision, the 3rd Court of Appeals has followed the precedent of other courts from the Court of Common Pleas in Philadelphia to the U.S.
Supreme Court in deciding one way in a host of cases, and another way in the case of Mumia Abu-Jamal.
The clearest such case was in the early 1990s when the U.S. Supreme Court granted a neo-Nazi prisoner a new sentencing hearing since the
prosecutor had used the defendant’s membership in the ultra-violent, racist prison gang Aryan Brotherhood to argue for the death penalty, but
denied such relief to Mumia even though the prosecutor in his case had argued for Mumia’s execution merely because he had been a member of the
Black Panther Party – 12 years before the trial!
There are multiple other examples of this sort where the courts singled Mumia out for special treatment – and always to his disadvantage.
In the present stage of Mumia’s case, the court once again did so with regard to Mumia’s claim of racism in the jury selection. Generally, to be
granted at least a hearing on this issue, the defendant must make a so-called “prima facie” case that the prosecutor excluded jurors because of their
Generally, the threshold for such a prima facie case is quite low, and mere statistics – black potential jurors were statistically at least 10 times as
likely to be excluded by the prosecutor than white potential jurors – and a whole array of other evidence should certainly have been enough to make
such a prima facie case for Mumia.
Not so for the 3rd Circuit Court majority. It does not even discuss the possibility that it might not have been a good idea to exclude blacks with a ten
times greater likelihood than whites. Rather, it points to all sorts of data that Mumia allegedly did not supply, citing the resulting lack of information as
the reason to deny an evidentiary hearing – as if such an evidentiary hearing were not supposed to supply exactly information of this sort!
In other words, the two majority judges do not seem overly concerned that an evidentiary hearing might reveal information that would convince even
them that racism prevailed during the selection of Mumia’s jury. Once more, Mumia is singled out for “special treatment” and denied relief.
The court also denied Mumia’s other two claims for a new trial or post-conviction hearing, citing similar allegedly purely formal grounds.
The myriads of formalism in which this decision drowns elementary considerations of justice cannot hide the fact that it was not these formalisms that
produced the decision. It was a political decision, a decision designed to please the powers that be, in Philadelphia and Pennsylvania.
If the court’s decision is allowed to stand, the consequences for other prisoners will also be severe.
The court will then have sent a message that 1) racism in jury selection is so harmless and tolerable that you need an unachievable mountain of
evidence to get relief, 2) that prosecutors can deceive the jury at will about its responsibility, as Mumia’s prosecutor Joseph McGill did when he asked
the jury to convict the defendant since in that case he will have “appeal after appeal” anyway, whereas if acquitted he will be able to simply “walk out,”
and finally, that 3) a behavior as blatantly unfair as original trial judge Albert F. Sabo’s behavior during the 1995-97 post-conviction hearings is also
tolerable since it is not in the domain of federal courts to review it (this is the reason given in the decision to deny relief in that particular point).
The March 27 decision by the 3rd Circuit Court marks a sad day not only in the struggle for Mumia, but also in the general struggle for the rights of
defendants in court and for civil and human rights.
But this is not the final word. As I said above, the struggle goes on, in the legal as well as in the political arena. This is not the moment to give up, but
rather, to intensify our fight, for truth, justice, and the life and freedom of Mumia Abu-Jamal.
Michael Schiffmann for the
German Network Against the Death Penalty and to Free Mumia Abu-Jamal
|Mumia's Court Decisions
From Cynthia McKinney:
"HQ" <firstname.lastname@example.org>To: email@example.com
Mumia & Ward Churchill News and Cynthia's Events
Saturday, March 7, 2009 2:12 PM
I am enclosing two e-mail messages that I want to pass on. One is a NAACPLDF press release about their
brief on behalf of Mumia Abu-Jamal. The other message pertains to Ward Churchill's court case for
reinstatement at the University of Colorado. For those of you who are in Colorado and can make it to
Ward's hearing, please consider attending. Reading Ward Churchill's book, The COINTELPRO Papers,
was a life-changing moment for me. Please support Ward's struggle against injustice.
Also, for those of you who are in California and interested in attending, I will be speaking at Monterey
Peninsula College on March 10th. Flyer included below.
For my U.K. friends, I will be in Brighton with the students at the University of Sussex discussing biofuels on
March 12th. Information included below.
For my southern California friends, I will be with the Palestinian-American Women's Association on March
14th at their Women's Month Banquet. Please come if you can! Flyer included below.
1. NAACPLDF Press Release:
March 5th, 2009
NAACP Legal Defense Fund Files Brief in Supreme Court in Mumia Abu-Jamal Case
(New York, NY)- Today the NAACP Legal Defense and Educational Fund (LDF) filed a friend of the
court brief in support of Mumia Abu-Jamal's claim of racial discrimination in the selection of the jury
for his 1981 death penalty trial. LDF's brief supports Mr. Abu-Jamal's request for United States
Supreme Court review of his appeal urging enforcement of the laws that require courts to promptly
investigate evidence of discrimination against African American prospective jurors.
Specifically, LDF objects to the United States Court of Appeals for the Third Circuit's use of a restrictive
interpretation of Batson v. Kentucky, a Supreme Court decision prohibiting prosecutors from excluding
prospective jurors on the basis of race, to conclude that Mr. Abu-Jamal failed to present sufficient evidence
to support his claim of racial discrimination in jury selection. LDF's brief explains that the Third Circuit's
conclusion that the only way to prove that racial discrimination infected the jury selection process is to
document the race of all members from the panel of prospective jurors and the race of all stricken jurors
ignores other significant indicators of discrimination in jury selection and contradicts the Supreme Court's
command that courts examine a wide array of evidence to properly ferret out discrimination in jury selection.
As applied to Mr. Abu-Jamal's case, the Third Circuit decision means that the trial prosecutor's pattern of
strikes against African-American prospective jurors, a culture of discrimination in the prosecutor's office
(including a videotaped training advocating the exclusion of prospective jurors of color), a comprehensive
statistical study documenting a pattern of exclusion of prospective jurors of color by the prosecutor's office
and other such evidence is insufficient to suggest discrimination. LDF's brief explains that turning a blind
eye to such credible evidence of discrimination not only conflicts with the law but also undermines public
confidence in integrity of the courts.
"We believe that the Third Circuit's interpretation of the law will have the effect of shielding discrimination
and undermining the rights of criminal and capital defendants to a fair trial. It is our hope that the Supreme
Court will accept and review Mr. Abu-Jamal's case to make sure that courts respond promptly and
appropriately when confronted with real questions about the existence of racial discrimination in jury
selection ," said John Payton, LDF President and Director-Counsel.
The NAACP Legal Defense and Educational Fund (LDF) is America's legal counsel on issues of race.
Through advocacy and litigation, LDF focuses on issues of education, voter protection, economic justice
and criminal justice. We encourage students to embark on careers in the public interest through
scholarships and internship programs. LDF pursues racial justice to move our nation toward a society that
fulfills the promise of equality for all.
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