PeaceTalks:Robert Bryan, Mumia Abu Jamal's Lead Attorney, On The Recent Ruling In His Case

Below are the observations and analysis of Linn Washington Jr. on the
federal Third Circuit ruling in the Mumia Abu-Jamal case issued on 3/27/08:

Linn Washington Jr. is a journalist and university professor in Philadelphia
who has written extensively about the contentious case since Abu-
Jamal’s arrest in December 1981.

OVERVIEW
The long awaited ruling by the Third Circuit Court of Appeals in the
Mumia Abu-Jamal case released on March 27, 2008 again displays the
dismaying pattern of US courts ignoring precedent to deny relief to
this death row journalist whose plight generates international support.

Precedent in American law means courts following previous court
rulings when determining specific legal issues.

Precedent is the bedrock of American law.

America law requires courts to follow precedent unless significant
evidence and/or compelling rationales necessitate changing precedent.

This Third Circuit ruling changes precedent. This ruling changes
precedent by applying legal procedures in a highly questionable
manner to dismiss compelling evidence of injustice against Abu-Jamal.

The Third Circuit did uphold the elimination of Abu-Jamal’s death
sentence. This is no victory because the ruling upheld his conviction
thus condemning Abu-Jamal to life in prison.

This ruling refused to grant Abu-Jamal a new hearing or new trial on
three compelling issues: prosecutors using racism to exclude African
Americans from the jury during Abu-Jamal’s 1982 trial; the prosecutor
making improper comments to that ’82 jury at the end of the trial;
and pro-prosecution bias by the ’82 trial judge during a 1995 appeals
hearing.

The Third Circuit previously granted relief to persons convicted of
murder in Philadelphia after ruling that Philadelphia prosecutors had
illegally excluded African Americans from juries.

However, in this Abu-Jamal case ruling, the court found no fault in
evidence of exclusion of African Americans from the jury in his 1982
trial.

Curiously, the evidence of exclusion at Abu-Jamal’s trial is of equal
or greater magnitude than proof of exclusion previously found
acceptable for relief by the Third Circuit.

These previous rulings on jury discrimination formed the precedent on
that issue for the Third Circuit.

That precedent stated it is wrong for prosecutors to discriminate
against even one black potential juror. Additionally, that precedent
stated defendants did not have to object to jury selection
discrimination by prosecutors immediately when it occurred.

Yet, this ruling reversed precedent on those two points of legal
procedure.

A week before this Abu-Jamal ruling, the US Supreme Court granted
relief to a death row inmate in Louisiana because of a discriminatory
jury selection process. That Supreme Court ruling was written by a
Justice on that court who formerly served on the Third Circuit.

That Justice, Samuel Alito, had approved relief to Philadelphia
murder defendants due to discriminatory jury selection practices by
prosecutors. Alito, in a February 2005 Third Circuit ruling, stated
prosecutors commit a violation by removing “any black juror because”
of their race – a position similar to the position contained in that
recent US Supreme Court ruling he authored.

THIRD CIRCUIT RULING
The Third Circuit’s ruling rested on a procedural finding by two of
the three judges on this appeal’s court panel. This finding stated
that lawyers for Abu-Jamal during the 1982 trial and the 1995 appeal
hearing failed to follow the procedures legally required to properly
raise the issue of prosecutors improperly using racism during the
jury selection process.

The panel’s majority asserted that “Abu-Jamal has forfeited his
Batson claim by failing to make a timely objection” to improper
procedures by prosecutors referencing the US Supreme Court’s 1986
Batson ruling that outlaws the exclusion of black jurors for reasons
rooted in racism.

Philadelphia area author and investigative reporter Dave Lindorff
notes the absurdity of holding Abu-Jamal’s lawyer responsible for not
strictly following procedures during the 1982 trial that the US
Supreme Court did not create until four years later in that 1986
Batson case.

No lawyer (or judge) in the United States could predicted what
procedure the US Supreme Court would order four years in the future
observes Lindorff, author of the seminal 2003 book on the Abu-Jamal
case: “Killing Time…”

In reaching this conclusion against Abu-Jamal’s jury discrimination
claim, that Third Circuit panel’s majority created a new standard for
persons raising Batson claims in that court.

This standard requires that a Batson violation claim must be raised
at the time of jury selection -- a contemporaneous objection.

Interestingly, in reaching this conclusion of procedural errors by
Abu-Jamal’s attorney, the panel’s majority failed to note that this
lawyer at 1982 trial was unfairly thrust into the jury selection
process after that process was underway without the opportunity to do
any preparation.

The trial judge granted the prosecutor’s request to remove Abu-Jamal
from selecting his own jury, a decision without merit that unfairly
benefited the prosecutor and stripped Abu-Jamal of his right to
represent himself. Plus, this action aggravated tensions between Abu-
Jamal and his attorney.

Further, the panel’s majority faulted an Abu-Jamal lawyer for not
properly raising the jury selection racism issue during Abu-Jamal’s
first appeal in the late 1989s to the Pa Supreme Court without
acknowledging a major error committed by the lawyer who filed that
appeal.

That attorney prepared that appeal without ever reviewing the trial
transcript.

There is no way that attorney could have prepared a legally valid
appeal without knowing what specifically had happened at trial. (That
appeal attorney was also suffering from what proved to be a fatal
brain tumor, a medical condition that impaired that attorney’s
cognitive abilities.)

In creating this new standard, the panel’s majority makes it harder
to prove Batson violations. Plus, this standard changes that court’s
precedent on procedures needed to raise Batson claims.

The judge who dissented from his two colleagues faulted them for
creating this new standard, a standard not ordered by the US Supreme
Court.

“This case’s newly created contemporaneous objection rule…goes
against the grain of our prior actions, as our Court has addressed
Batson challenges on the merits without requiring that an objection
be made during jury selection in order to preserve” future appellate
review, the dissenter said.

This judge, speaking specifically to changing precedent, said since
Third Circuit precedent did “…not have a federal contemporaneous
objection rule…I see no reason why we should not afford Abu-Jamal the
courtesy of our precedents.”

Additionally, this dissenter stated that jury discrimination
practices displayed in a now infamous video-taped training session at
the Philadelphia DAs Office gave “a view of the culture” of that
office during the 1980s when Abu-Jamal was tried.

This dissenter criticized his two colleagues for failing to make the
obvious connection between the discrimination instruction given at
the taped session and discriminatory practices used by Philadelphia
prosecutors before, during and after the 1980s.

“Indeed, given that Abu-Jamal’s trial preceded Batson, it is not far-
fetched to argue that the culture of discrimination was even worse,”
the dissenter declared.

Previously, the Third Circuit ordered new federal trial court
hearings to collect more evidence to enable full and fair
determinations on jury discrimination claims.

The Third Circuit’s ruling rejected that procedure for Abu-Jamal.

MAJOR FLAWS IN COURT RULINGS
This practice of creating new court standards to only apply to Abu-
Jamal was criticized in an Amnesty International report of the Abu-
Jamal case controversy released in 2001.

AI criticized the Pa Supreme Court for altering its prior rulings –
precedents – to reach results against Abu-Jamal.

In 1986, for example, the Pa Supreme Court overturned a Philadelphia
death sentence after ruling that a prosecutor named Joseph McGill
made improper comments to the jury during a trail presided over by
Judge Albert Sabo.

McGill prosecuted Abu-Jamal in a 1982 trial presided over by Judge Sabo.

Abu-Jamal’s attorneys had alleged that McGill engaged in jury
selection discrimination – a claim documented by evidence but a claim
that the Third Circuit panel’s majority rejected. Sabo’s rulings
during that 1982 trail aided this documentable discrimination.

During Abu-Jamal’s ’82 trial, McGill made the same comments to the
jury that the Pa high court faulted in its 1986 ruling. But when the
Court upheld Abu-Jamal’s conviction in 1989 it refused to find any
fault with McGill making the same comments it had faulted him for in
its ruling three years before.

Then, in 1990, the Pa Supreme Court reinstated its 1986 standard
regarding prosecutors making improper comments like McGill made.

The Pa Supreme Court’s flip-flopping on this form of prosecutorial
misconduct led Amnesty International to state in its 2001 report
that: “This contradictory series of precedents leaves the disturbing
impression that the Court invented a new standard of procedure to
apply it to one case only: that of Mumia Abu-Jamal.”

McGill’s improper comments to the jury faulted by the Pa Supreme
Court in 1986 were an appeal issue before the Third Circuit Court.
That federal court panel found no fault in McGill’s comments, denying
Abu-Jamal relief he should have received if those federal appeals
judges fairly followed established law.

The Third Circuit panel also rejected allegations that Judge Sabo was
biased during a major 1995 appeals hearing.

Sabo’s biased antics during that 1995 proceeding were so outrageous
this misconduct provoked strong, caustic criticisms from even
Philadelphia’s normally anti-Abu-Jamal media. An August 1995
editorial in the Philadelphia Inquirer blasted Sabo’s “injudicious
conduct” that included verbally badgering Abu-Jamal’s attorneys and
even briefly jailing one of those attorneys for objecting to one of
his improper rulings.

Scores of newspaper articles from the New York Times to the ultra-
conservative/law-&-order Washington Times reported on Sabo’s pro-
prosecution bias at that ’95 appeal hearing.

The Pa Supreme Court curtly dismissed this widespread journalistic
criticism by contending that the “view of a handful of journalists”
did not convince that Court of Sabo’s bias.

Five of the seven Pa Supreme Court justices that upheld Abu-Jamal’s
conviction in 1998 received campaign contributions from the lead
group seeking Abu-Jamal’s execution, Philadelphia’s police union, the
Fraternal Order of Police (FOP). One of those ’98 justices was the ex-
DA of Philadelphia who as DA fought to execute Abu-Jamal.

The Third Circuit agreed with the Pa Supreme Court’s 1998 ruling that
no evidence exists showing a “settled bias” by Sabo against Abu-
Jamal. The Third Circuit panel made this assertion despite noting
Sabo making a series of “intemperate remarks” against Abu-Jamal and
his defense attorneys during that 1995 appeal hearing.

In another flip-flop ruling, the Pa Supreme Court in March 1988 found
that a single statement uttered by the judge during the murder trial
of a former Pa State Trooper “was extremely prejudicial” to this
Trooper who killed a woman inside a judge’s office.

Where the Pa Supreme Court granted a new trial to that killer cop
because of that judge’s one improper comment, one year later the same
Court found no fault in numerous opinion laden statements Judge Sabo
made during the Abu-Jamal trial.

Sabo rejected requests to remove himself from hearing that ’95 appeal
made by Abu-Jamal attorneys citing his pro-prosecution during the
1982 trial. News articles, editorials and commentaries all faulted
Sabo for not removing himself stating his failure recuse himself
graphically displayed unfairness in a proceeding where fairness was
desperately needed.

Journalistic watch-dogs normally hostile to Abu-Jamal sought the face
of fairness in that ’95 proceeding both to follow established law and
to quell critics claiming Sabo’s unfairness against Abu-Jamal
undermined fairness.

The federal panel’s majority employed a legal procedure to sidestep
Sabo’s clear and illegal bias – an Achilles Heel of that federal
ruling and this entire case.

It is incredible to contend that the widely condemned Judge Sabo who
presided during most trial court proceedings in the Abu-Jamal’s case
did not violate any of Abu-Jamal’s rights at any time – despite his
history of violating rights in this case and other cases.

Judge Sabo handled 32 murder trials that ended in death sentences
before his retirement. But 24 of those sentences in Sabo’s courtroom
had been vacated for errors as of June 2007 according to the American
Civil Liberties Union (ACLU). Some of those death sentences were
reverse due to misconduct and/or mistakes by Sabo.

Sabo had once ordered prosecutors to pursue a death penalty when the
death penalty had been ruled illegal in Pennsylvania. Sabo’s ordering
that illegal procedure led to overturning that death sentence.

WHAT NEXT?
This March 2008 Third Circuit ruling leaves Abu-Jamal with few legal
options to challenge his conviction.

Abu-Jamal can appeal the panel’s ruling to the entire Third Circuit
Court hoping for that full Court to overturn the panel’s ruling.
Further, he can appeal any Third Circuit ruling to the US Supreme Court.

There is a slight prospect of new action in Pa state courts.

The Third Circuit issued an order stating Abu-Jamal will receive a
life-sentence unless Philadelphia prosecutors hold a new penalty
phase hearing seeking to reinstate his death sentence within six months.

This mini-trial style hearing would allow Abu-Jamal to present
evidence, including new evidence of innocence that has emerged like a
flood since his first trial.

But it is unclear if prosecutors will pursue this route that could
create evidence and procedure that could secure a new round of
federal appeals for Abu-Jamal.

OVERLOOKED CRUX OF CASE
Sadly, the federal judges at the trial and appellate court levels,
like judges in Pa state courts, have refused to uphold the most
fundamental issue in the contentious Abu-Jamal case: the right to a
fair trial.

Critics of Abu-Jamal’s conviction from Philadelphia’s Francisville
section to France all feel he was denied a fair trial.

Police and prosecutors blatantly engaging in misconduct to secure a
conviction destroys fair trial rights. A trial judge openly biased
towards police and prosecutors destroys fair trial rights. Court
applying the law in the Abu-Jamal case differently from applied in
other cases destroys equal justice rights.

The Pa Supreme Court declared in a 1959 ruling involving a
Philadelphia murder case that every defendant is entitled “to all the
safeguards of a fair trial…even if evidence of guilt piles as high a
Mt Everest…”

Abu-Jamal was four-years-old when the Pa Supreme Court issued that
1959 ruling against judges and prosecutors cutting-corners during a
trial.

Abundant evidence documents that corners-cut by the prosecutor and
judge during Abu-Jamal’s trial and by judges during his appeals
corrupted his rights to a fair trial and equal justice – rights
guaranteed by the US Constitution.

In June 2007, state courts in Pennsylvania overturned the 200th death
penalty case since 1978 when that state reinstated executions, the
ACLU stated.

It is incredible to contend that 200 death penalty cases contained
errors egregious enough to be vacated but not a single element in the
Abu-Jamal case warrants either a new hearing or a new trial.
-The End-