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Legal Update on the Appeals Proces of Mumia Abu-Jamal

by louis bettencourt
The following legal update was approved by the National Task Force for Mumia Abu-Jamal at a December 12, 2004 meeting in New York City. This update was also reviewed and approved by Attorney Robert R. Bryan, Mumia’s lead counsel. A popular summary of these legal issues will be prepared by the task force in the near future:
Mumia’s case is simultaneously being heard in two different courts presently: the United States Court of Appeals for the Third Circuit (appellate court) and the Pennsylvania State Court of Common Pleas (trial court), both of which sit in Philadelphia.

The Third Circuit (the appellate court)
In July 2004, both Robert Bryan and the state of Pennsylvania submitted briefs on the effect of the 06-24-04 United States Supreme Court decision in Beard v. Banks on Mumia’s case. On 07-29-04, Robert filed a memorandum of law on the affect of Banks for Mumia, and requested a stay of the proceedings in this matter pending the outcome of the issues simultaneously being litigated in the Pennsylvania trial court before Judge Pamela Dembe. On 10-19-04, the appellate court entered an order denying the 07-29-04 request from Robert Bryan for a stay of the proceedings. What this means is that the issues currently pending before the appellate court are moving forward. The next step involves putting these issues on what is called a “briefing schedule,” which has yet to be done by the appellate court. In other words, Robert has yet to receive notice from the appellate court as to when briefs will be due on the issues currently before it.

Robert initially filed for a stay of these proceedings because of the active litigation pending before Judge Dembe in the trial court in Philadelphia, and argued against having to litigate one case in two courts at the same time. The matters before Judge Dembe cannot be resolved by the Third Circuit, but must first be addressed at the trial level in the state system.

Additionally, Robert Bryan is currently working on a brief to be filed with this court requesting that additional issues be certified for appeal from district court Judge Yohn’s 2001 habeas decision, which certified only one claim for relief: racial bias in jury selection, also known as the Batson claim. Mumia’s former attorneys filed the original motion on this issue, which Robert plans to supplement, requesting that additional issues be certified on appeal to the appellate court. What are the possible outcomes? There are four possibilities: the Third Circuit could (1) deny this request outright, (2) only allow a few of the 29 issues raised by Mumia’s writ for habeas corpus, (3) send the case back to Judge William Yohn to apply the standard set out in Miller-El (see below), or (4) wait for Mumia’s Batson issue to be resolved before moving forward on this one.

More immediately, Robert plans to file a motion for remand back down to the district court on the issues raised by Terri Maurer-Carter’s affidavit. Terri Maurer-Carter is the court reporter who overheard trial judge Albert Sabo—who presided over Mumia’s 1982 “trial,” and 1995, 1996, and 1997 Post-Conviction Relief Act (PCRA) appellate hearings in Philadelphia—say: “Yeah, and I’m going to help ‘em [the prosecution] fry the n----r.”

There are two issues before the appellate court, which will be explained below.

First, what did the United States Supreme Court decide in Beard v. Banks, and how does that affect Mumia?

In July 2004, the appellate court allowed both Robert Bryan and the state of Pennsylvania to submit briefs on the affect of Banks on Mumia’s case. The issue was whether Mumia’s case was affected by the recent United States Supreme Court decision in Beard v. Banks. George Banks was sentenced to death in 1982. After his state appeals were exhausted, he sought habeas relief in federal district court and was denied. On appeal to the Third Circuit Court of Appeals, Banks’ death sentence was found to be unconstitutional, and the decision of the district court was reversed. The appellate court held that jury instructions during Banks’ sentencing led jurors to believe they could not vote against the death penalty unless they all agreed on mitigating evidence—evidence that would have inclined them not to vote for a death sentence. The appellate court reasoned that these jury instructions violated the United States Supreme Court's 1988 ruling in Mills v. Maryland.

However, the Third Circuit did not decide whether the rule of Mills was retroactive. In other words, could Banks benefit from the United States Supreme Court's 1988 decision in Mills where his conviction became final in 1987? Thus, when Banks’ case was next brought before the United States Supreme Court on appeal, the Court sent the case back down to the Third Circuit to decide this issue. The appellate court then decided that the rule created by the Supreme Court in Mills was retroactive and that Banks could benefit. The case was again appealed to the Supreme Court and on 06-24-04; the United States Supreme Court reversed the decision of the Third Circuit and declared that the rule of law created in Mills was not retroactive. In a 5-to-4 decision written by Justice Clarence Thomas, the Court found that the rule announced in Mills—that sentencing schemes could not prevent jurors from considering mitigating evidence that had not been accepted unanimously when deciding whether to apply the death penalty—was a new rule of law that was not a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Finding that the rule of Mills was not a “watershed rule,” the United States Supreme Court said that Mills could not be applied retroactively and that Banks’ conviction was constitutional.

What does this mean? Basically, it means that a “Mills challenge” to a death sentence is only applicable where the sentencing relief sought is for a person whose conviction became final after the rule of Mills was decided in 1988. Seemingly, the Court has said that relief is available to those whose convictions post-date Mills, creating what is called in the law a “bright line rule.” Robert Bryan argued in his brief that Mumia benefits from the rule of Mills because his conviction became final in 1990. The state of Pennsylvania has argued that Mumia should not get the benefit of Mills, despite this seemingly bright line rule, and there have been several exchanges back and forth (one as recent as 10-31-04) through the filing of papers with the appellate court on this issue. This matter is still pending.

If Mumia wins on this issue, that he does get the benefit of Mills, his case will go back to the trial level in the Pennsylvania Court of Common Pleas. The state of Pennsylvania will have two choices, either (1) sentence Mumia to life imprisonment, or (2) grant Mumia a full jury trial on the issue of whether he should be sentenced to life imprisonment or death. A full jury trial, or penalty-phase hearing, means that Mumia is back to 1982 in terms of the issue of sentencing. The state of Pennsylvania will put on evidence of guilt and aggravation to argue for a death sentence. Robert Bryan will then be able to put on evidence of innocence and mitigation. However, the only decision the jury can make should there be a new penalty-phase hearing is life imprisonment or death. If Mumia loses, then the state of Pennsylvania can sign another death warrant, side-stepping Yohn’s 2001 habeas decision.

However, there still remains another issue pending before the appellate court: the issue of jury selection, Mumia’s Batson claim.

Second, what is Mumia’s Batson claim? The issue of racial bias in jury selection, Mumia’s Batson claim, is also still pending before the appellate court. This issue was the only issue Judge Yohn allowed to be appealed to the Third Circuit. In other words, this is the only guilt-phase appellate issue Yohn certified to go before the appellate court.

Recently, the United State Supreme Court heard arguments in the case of Thomas Miller-El. A summary of that case from an article in the 12-05-04 NYT is as follows:

“In an 8-to-1 decision last year, the Supreme Court instructed the appeals court to rethink its "dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury. Prosecutors used peremptory strikes to eliminate 10 out of 11 eligible black jurors, and they twice used a local procedure called a jury shuffle to move blacks lower on the list of potential jurors, the decision said. The jury ultimately selected, which had one black member, convicted Mr. Miller-El, a black man who is now 53, of killing a clerk at a Holiday Inn in Dallas in 1985.

Instead of considering much of the evidence recited by the Supreme Court majority, the appeals court engaged in something akin to plagiarism. In February, it again rejected Mr. Miller-El's claims, in a decision that reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion in last year's Supreme Court decision, written by Justice Clarence Thomas.”

According to Attorney Bryan, Miller-El deals with two issues: (1) racism in jury selection and (2) the certification of appellate issues by federal district courts. Regarding racial bias in jury selection, should the United States Supreme Court decide in favor of Miller-El on this issue, Mumia’s position will be strengthened. Furthermore, there is also good case law in the Third Circuit on this issue that should also support Mumia’s case. As for the certification of issues for appeal by the lower federal courts, the Supreme Court appears to be saying that these courts have too high a standard. In other words, they have made it such that unless a petitioner can prove a certain win on appeal, then that issue will not move forward. But if a certain win was apparent, then there would be no need for an appeal because the district court would have granted relief in the first instance, right? If Miller-El succeeds on this issue, then Robert will be in a better position to argue that Judge Yohn violated the proper standard and set the bar to high for his certificates of appealability.

If Mumia wins his Batson claim, there will be a completely new trial, meaning there will be a new trial to decide guilt or innocence. If there is an acquittal, Mumia will be released. If Mumia is found guilty, there will be a penalty-phase hearing.

The Pennsylvania State Court of Common Pleas (trial court)

With regards to the newly discovered evidence presented to this court through the affidavits of William Pate and Yvette Williams, Robert Bryan has requested a hearing on the issues this evidence raises in relation to Mumia’s conviction. Currently pending before Judge Dembe is a motion to dismiss that was filed by the state of Pennsylvania. This new evidence has not been presented in federal court because the issues it raises have not yet been resolved by Dembe in the state court system. Robert Bryan has replied to this motion, and was forced by Dembe in September 2004 to qualify himself to handle a capital case, despite his years of experience in these matters. Robert has handled hundreds of capital cases. Interestingly, there is a new state law in Pennsylvania that requires defense attorneys handling capital litigation to demonstrate that they are qualified to handle such matters, but that law was not in effect when Dembe challenged Robert’s ability to handle Mumia’s case.

If Judge Dembe decides in Mumia’s favor, then he would get a new trial. If Dembe denies relief, then Robert will appeal that decision through to the Pennsylvania Supreme Court. It should be noted that if Dembe or the Pennsylvania appellate courts grants Mumia relief, there will be no need to remain in federal court—another reason why Robert has argued against the lifting of the stay by the Third Circuit.


There are two issues before the trial court: the fabricated confession of Pricilla Durham and that the false testimony the state of Pennsylvania put on during the trial through their key witness Cynthia White.

William Pate is the half-brother of Pricilla Durham. In his affidavit, he says that Durham lied about the confession she claimed Mumia made at the hospital on the night he was shot and Faulkner died.

Yvette Williams said in her affidavit that Cynthia White was not present during the shooting, but appeared sometime thereafter.

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all you have to do is search for the things you want to find and it is likely that they are there

by John Q Public
Before, during, and after the moment he fired the fatal shot on December 9, 1981, Mumia Abu-Jamal's actions have been consistent with his guilt, and have been consistent with nothing else but his guilt. He has done nothing that an innocent person would do if accused and convicted of murder. All the evidence points to Jamal as the killer. You be the judge.


As a young man, Jamal had a long history of hatred against the law enforcement officers. While he was a Black Panther, Mumia Abu-Jamal wrote, "I for one feel like putting down the pen....LET'S WRITE EPITAPHS FOR PIGS." Jamal has stated that he used his position in the Black Panthers to call for a "black revolution in America" and that "political power grows from the barrel of a gun."


A total of five eyewitnesses have testified that they saw Mumia Abu-Jamal run from a parking lot and shoot Officer Faulkner to death as the officer attempted to arrest Jamal's brother. None of these eyewitnesses knew each other. Each gave their accounts within minutes of the shooting, and the accounts agreed with each other in every significant detail. Several of these individuals stated that -- in some cases from less than 30 feet away -- they watched as Jamal repeatedly fired at the fallen and unarmed officer from point blank range. One even stated that Jamal took the time to bend down and fire the final shot into the wounded officer's face from less than a foot away and that the officer's "whole body jerked" when the shot hit his face. Was each and every one of these eyewitnesses - including a man called by Jamal's own lawyers in 1995, Robert Harkins - "confused" about what they saw, as Jamal and his attorneys allege?


Within a few minutes of the shooting, three of the eyewitnesses personally identified Mumia Abu-Jamal to police at the scene as the man who had shot Officer Faulkner. Again, none of these individuals knew each other. They had no time to find what other witnesses were going to say. Nor was there time for police to "coerce" or "intimidate" them prior to making their identifications. The police had no way of knowing what story to "coerce" witnesses to tell even if they had wanted to. Each witness watched from a different vantage point, and several stated that they never lost sight of Jamal from the moment the shooting stopped, until the police apprehended him and placed him in the van. Were these eyewitnesses all "mistaken" about what they saw, as Jamal and his attorneys now argue?


Jamal was apprehended only 10 feet away from Officer Faulkner's body. In his chest, Jamal had a bullet fired from Officer Faulkner's gun. If the officer was shot by a "phantom killer," as Jamal's lawyers contend, he would have shot the gunman, not Jamal. The eyewitnesses all said that Jamal shot the officer in the back before the officer even knew Jamal was there.


The gun found next to Jamal was owned by Jamal and registered in his name. Does an "innocent man" run to the scene of an arrest with his gun in his hand if he doesn't intend to use it?


Jamal's gun contained five spent casings from unique high velocity special +P ammunition. These casings were the exact brand (Federal), caliber (.38) and type (high velocity +P with a hollow base) of ammunition retrieved from Officer Faulkner's brain. Is it reasonable to believe that an "innocent man" just happened to load his gun with exact same ammunition that the "real killer" used in his gun?


The rifling characteristics of the bullet removed from Officer Faulkner's brain showed that it was fired from a barrel with 8 lands and grooves and a right hand direction of twist. This is identical to the rifling characteristics of the barrel of Jamal's gun. Is it a coincidence that an "innocent man" just happened to load his gun with the same unique ammunition as the "real killer" AND have the same riffling pattern in the barrel of his gun as the "real killer"?


Jamal's brother, William Cook, saw the murder unfold. When police arrived at the scene -- less than one minute after the shooting -- they found Cook against a wall a few feet away from the dead officer's body. Cook's only comment was, "I ain't got nothin to do with this." Would not the brother of an "innocent man" say something like, "The guy who shot the cop ran away." or "My brother didn't do it"? In fact, to this day, Cook is the only known eyewitness (other than Jamal himself) who has never testified to what he saw. He has never so much as suggested that his brother might be innocent.


The jury knew that William Cook was the closest person to the murder. Yet the jury never heard Cook testify on his brother's behalf. It does not require a degree in rocket science to understand the significance of the fact that Cook would allow his brother to be sentenced to death rather than testify to his supposed innocence. Is it believable that an "innocent" Mumia Abu-Jamal would simply accept his brother's silence and not demand to have him testify to his innocence in order to save him from conviction?


On June 21, 1982 , Officer Faulkner's blood stained shirt was displayed in the courtroom. Jamal deliberately turned around and grinned at Officer Faulkner's widow as her husband's shirt was displayed. Several witnesses saw this. Such a calculated act of evil is not characteristic of an innocent man.


Throughout the trial and at the sentencing hearing the jury saw Mumia Abu-Jamal explode with loud violent outbursts, obscenities, verbal threats and diatribes against the judge, the prosecutor, his own attorney, and even the jurors themselves. Were these the acts of an "innocent man"?


Jamal insulted and refused to speak with the lawyer he himself had selected prior to trial. He then refused to be represented by any lawyer at all. Instead, he demanded to have John Africa, the leader of a radical cult called MOVE, act as his lawyer. Would an "innocent man" concerned with keeping his freedom, as opposed to making his trial a political forum, make such absurd demands? Or would an "innocent man" work to provide his highly qualified and experienced attorney -- an attorney he hand picked -- with every bit of information and evidence he could muster that supported his innocence?


Though given two chances (the trial in 1982 and the PCRA hearing in 1996) to take the stand and explain his alleged "innocence," Mumia Abu-Jamal has refused to do so. In fact, he has refused to tell anyone what really happened on the morning Officer Faulkner was murdered; including the legion of reporters from around the world who line up to interview him. Would an "innocent man" keep the facts that prove his supposed innocence a secret?


At his sentencing hearing, Mumia Abu Jamal threatened Judge Albert Sabo in front of the entire courtroom when he said, "I'm going to tell you one thing: You have sentenced yourself, just like Judge Malmed, just like Malcolm, just like Merna Marshal, and every other Judge who dares to sit up there and act like you got some justice. You are wrong. You have just been sentenced to death. You have just been convicted!" (N.T. 5/25/83, 165)

Are these the words of an "innocent man"?

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