Datum: Donnerstag, 7. Mai 2009 21:18 via: PP News
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http://crimemagazine.com/mumia_exception.htm
Since his conviction in 1982 for the murder of Philadelphia PoliceOfficer Daniel Faulkner, Mumia Abu-Jamal, through his numerous books,essays and radio commentaries, has become the face of the anti-deathpenalty movement in the United States and an international causecélèbre. Paris, for example, made him an honorary citizen in 2003,bestowing the honor for the first time since Pablo Picasso received itin 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 invisible3,600 Death Row inmates in the United States.
The case of Mumia Abu-Jamal cries out for justice not because he isfamous but because he is innocent. Kenneth Freeman, the street-vendorpartner of Abu-Jamal’s younger brother, Billy Cook, killed OfficerFaulkner moments after Faulkner shot Abu-Jamal in the chest as heapproached the scene where Faulkner had pulled over the car Cook wasdriving. When Faulkner began beating Cook with an 18-inch longflashlight, Abu-Jamal ran from his nearby taxi to come to hisbrother’s aid. After Abu-Jamal was shot and collapsed to the street,Freeman emerged from Cook’s car, wrestled Faulkner to the sidewalk andthen shot him to death.
Freeman fled the scene on foot. Numerouswitnesses told police they saw one or more black men fleeing rightafter the officer was shot. A driver’s license application found inFaulkner’s shirt pocket led the police directly to Freeman’s homewithin hours of the shooting. But the police did not want Freeman for this killing, releasing himwithout him even having to call his attorney. The police, led by thecorrupt Inspector Alfonzo Giordano who took charge of the crime scenewithin minutes of the shooting, wanted to pin Faulkner’s death on theblacked-out, police-bashing radio reporter at the scene. Freeman theywould deal with later, meting out their own brand of street justice inthe dead of night. Five days after Faulkner’s death, the Center City newsstand whereFreeman and Billy Cook operated a vending stand burned to the groundat about 3 a.m. Freeman told a Philadelphia Inquirer reporter hoursafter the arson that „there was no question in my mind that the policeare behind this.“ The Inquirer also quoted a Center City policeofficer who was on patrol in the area that morning as saying, „It’sentirely possible“ that „certain sick members“ of his department wereresponsible. „All I know is when I got to the station to start myshift at 7:30 this morning, the station house was filled with Cheshiregrins.“ Although the „unsolved“ arson bankrupted Freeman and Cook, aworse fate awaited Freeman. On the night in 1985 when the police infamously firebombed the MOVEhome and burned down 60 other row houses in the process, incinerating11 MOVE members including five children, Freeman’s dead body would befound nude and gagged in an empty lot, his hands handcuffed behind hisback.
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 thePhilly chapter of the Black Panther Party at age 15. The next year hewas named „lieutenant of information,“ an appointment theInquirer ranon its front page, picturing the young radical at Pantherheadquarters. Even though the chapter would soon dissolve, both thepolice and the FBI continued to monitor Abu-Jamal when he leftPhiladelphia to attend Goddard College in Vermont and on his return toPhiladelphia 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 ofthe radical counter-culture group MOVE. Throughout the 1970s and wellinto the 1980s, police confrontations with MOVE were brutal displaysof civic discord and police abuse that culminated in the 1985firebombing. Abu-Jamal’s case has been politically charged from the beginning. Bythe time he was arrested for the murder of Officer Faulkner, he was amarked man to the police for his Black Panther Party association andhis favorable reporting of MOVE. Inspector Giordano, who detested bothAbu-Jamal and MOVE, would set the framing of Abu-Jamal in motion byfalsely claiming that Abu-Jamal had told him in the paddy wagon thathe had killed Faulkner. (Giordano would not be called by theprosecution 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 onwhat would prove to be well-founded „suspicions of corruption.“
An FBIprobe of rank corruption within the Philadelphia Police Department –the largest ever conducted by the U.S. Justice Department of a policeforce – would lead to Giordano’s conviction four years later. The FBIinvestigation would ensnare numerous other high-ranking Philadelphiapolice officials and officers, many of them involved in Abu-Jamal’sarrest and trial. Deputy Police Commissioner James Martin, who was incharge of all major investigations, including Faulkner’s death, wasthe ringleader of a vast extortion enterprise operating in City Center.) The trial of Abu-Jamal was a monumental miscarriage of justice frombeginning to end, representing an extreme case of prosecutorial abuseand judicial bias. A pamphlet published by Amnesty International in2000 stated it had „determined that numerous aspects of Mumia Abu-Jamal’s case clearly failed to meet minimum standards safeguarding thefairness of legal proceedings.“ The trial judge, Common Pleas Court Judge Albert F. Sabo, presided atmore trials that resulted in the defendants receiving the deathpenalty than any judge in the nation. Of the 31 so sentenced, five wonreversals on appeal, an indication of extreme judicial bias. TheInquirer called him „a defendant’s worst nightmare,“ a prominentdefense attorney referred to him as „a prosecutor in robes.“ A formercourt 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 hisright to represent himself and interview potential jurors despite thefact that the Inquirer reported Abu-Jamal was „intent and businesslike“ in his questioning. On the second day of the trial, Sabo removedAbu-Jamal from the courtroom for insisting that MOVE founder JohnAfrica replace his court appointed backup counsel, Anthony Jackson. Inturn, Sabo appointed Jackson to represent Abu-Jamal. This would put torout the possibility of a fair trial. Abu-Jamal’s first major appeal issue developed during jury selectionwhen the prosecutor, Assistant D.A. Joseph McGill, used 10 or 11 ofthe 15 peremptory challenges he exercised to keep otherwise qualifiedblacks from sitting on this death-penalty-vetted jury. In a city withmore than a 40 percent black population at the time, Abu-Jamal’s juryended up with only two blacks. In 1986 – four years after Abu-Jamal’strial – the U.S. Supreme Court ruled in Batson v. Kentucky that it wasunconstitutional for a prosecutor to exclude potential jurors on thebasis of race. The ruling was retroactive.
The second major constitutional claim that would arise occurred at theend of the guilt phase of the trial when the prosecutor referenced theappeal process in his summation to the jury. He told the jury that ifthey found Abu-Jamal guilty of murder in the first degree that „therewould be appeal after appeal and perhaps there could be a reversal ofthe case, or whatever, so that may not be final.“ Although Officer Faulkner had been killed by Kenneth Freeman, theprosecution mounted its evidentiary case against Abu-Jamal on theperjured testimony of a prostitute informant and a cab driver with asuspended license for two DUIs who was on probation for throwing aMolotov cocktail into a school yard during a school day. Both of thesewitnesses 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 tortuousappeal process has been fraught with „judicial machinations.“ Claimsthat won the day in other cases were repeatedly denied him. In 1989, the Pennsylvania Supreme Court turned down his first appealeven though one of his claims was almost identical to one that hadpersuaded the same court to grant Lawrence Baker a new trial in 1986.In that case, Commonwealth v. Baker, the court overturned Baker’sdeath sentence for first-degree murder on the grounds that theprosecutor improperly referenced the lengthy appeal process affordedthose sentenced to death. That prosecutor – Joseph McGill – was thesame prosecutor who used similar – almost verbatim – language in hissummation during both the guilt and sentencing phases of Mumia’strial. The judge who failed to strike the language in the Baker casewas the same judge who presided at Mumia’s trial, Common Pleas CourtJudge 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 ofdeath.“
When Abu-Jamal’s appeal included the very same issue, thecourt reversed its own precedent in the matter, denying the claim in ashocking unanimous decision. A year later, in Commonwealth v. Beasley, the Pennsylvania SupremeCourt reinstated the death sentence of Leslie Beasley, but exerted itssupervisory power to adopt a „per se rule precluding all remarks aboutthe appellate process in all future trials.“ This rule not onlyreinstated the Baker precedent but it ordered all prosecutors in thestate to refrain once and for all from referencing the appellateprocess in summations to the jury. The court could have made this newrule retroactive to Mumia’s case, but did not. As Amnesty International declared in its pamphlet about the case, thePennsylvania Supreme Court’s judicial scheming leave „the disturbingimpression that the court invented a new standard of procedure toapply to one case only: that of Mumia Abu-Jamal,“ Temple Universityjournalism professor Linn Washington aptly dubs this and subsequentcourt decisions denying Mumia a new trial „the Mumia exception.
„ Abu-Jamal’s Post-Conviction Relief Act hearing in 1995 was doomed fromthe beginning when Judge Sabo – the original trial judge – would notrecuse himself from the case and the Pennsylvania Supreme Court wouldnot remove him for bias. Abu-Jamal’s federal habeas corpus appeal – decided by Federal DistrictJudge William Yohn in 2001 – should have resulted in at least anevidentiary hearing on Abu-Jamal’s Batson claim that the prosecutorunconstitutionally purged blacks from the jury by using peremptorystrikes to exclude 10 or 11 otherwise qualified black jurors frombeing empanelled. Abu-Jamal’s attorneys had included a study conductedby Professor David Baldus that documented the systematic use ofperemptory challenges to exclude blacks by Prosecutor McGill in thesix death-penalty cases he prosecuted in Common Pleas Court inPhiladelphia. Abu-Jamal’s trial was one of the six trials studied byBaldus.
Judge Yohn barred the study on the erroneous grounds that thestudy was not from a relevant time period when, in fact, it wascompletely relevant. Judge Yohn’s error was egregious and could havebeen easily avoided if he had held one evidentiary hearing on thatdefense 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 correctedthat district court mistake by remanding Abu-Jamal’s case back toJudge Yohn to hold the evidentiary hearing on the Batson claim, but inanother example of the „Mumia exception,“ the court instead continuedthe long and tortured denial of Mumia’s right to a fair trial. In a 2to 1 decision released on March 27, 2008 that reeked of politics andracism, the court ruled that Abu-Jamal had failed to meet his burdenin providing a prima facie case. He failed, the majority wrote,because his attorneys were unable to establish the racial compositionof the entire jury pool. In the decision written by Chief Judge Anthony Scirica, the courtstated that „Abu-Jamal had the opportunity to develop this evidence atthe PCRA evidentiary hearing, but failed to do so. There may beinstances where a prima facie case can be made without evidence of thestrike rate and exclusion rate. But, in this case [i.e., „the Mumiaexception“ is in play], we cannot find the Pennsylvania SupremeCourt’s ruling [denying the Batson claim] unreasonable based on thisincomplete record.“ In a nutshell, the majority denied Mumia’s Batson claim on atechnicality of its own invention, not on its merits.
It also brokewith the sacrosanct stare decisis doctrine – the principle that theprecedent decisions are to be followed by the courts – by ignoring itsown previous opposite ruling in the Holloway v. Horn case of 2004 andthe Brinson v. Vaughn case of 2005. It is a general maxim that when apoint has been settled by decision, it forms a precedent which is notafterwards to be departed from. In a Ninth Circuit Court of Appealsruling in 1989 in a case entitled United States v. Washington, thedecision stated that an appeal court’s panel is „bound by decisions ofprior panels unless an en banc decision, Supreme Court decision, orsubsequent legislation undermines those decisions.“ None of thosevariables were in play when the Third Circuit Court majority ruledagainst 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 formaking a prima facie case under Batson. In holding otherwise, theyraise the standard necessary to make out a prima facie case beyondwhat Batson calls for.“ In other words, the majority, in this case alone, has upped the anterequired for making a Batson claim beyond what the U.S. Supreme Courtstipulated. When ruling in Batson in 1986, the U.S. Supreme Court didnot require that the racial composition of the entire jury pool beknown before a Batson claim may be raised. The high court ruled that adefendant must show only „an inference“ of prosecutorialdiscrimination in purging potential jurors. Prosecutor McGill’s using10 or 11 of the 15 peremptory strikes he deployed is just such aninference – and an extremely strong one. McGill’s strike rate of over66 percent against potential black jurors is in itself prima facieevidence of race discrimination. Prima facie is a Latin term meaning„at first view,“ meaning the evidence being presented is presumed tobe true unless disproved. In commenting on Holloway v. Horn, a Batson-type case with strikingsimilarities to Abu-Jamal’s claim, Judge Ambro – the lone Democrat-appointed judge on the three judge panel – demonstrated just howdisingenuous the panel’s ruling against Abu-Jamal’s Batson claim was.„In Holloway, Judge Ambro wrote in his 41-page dissent, „we emphasizedthat ‘requiring the presentation of [a record detailing the race ofthe venire] simply to move past the first state – the prima faciestage – in the Batson analysis places an undue burden upon thedefendant.’ There we found the strike rate – 11 of 12 peremptorystrikes against black persons – satisfied the prima facie burden.“
InHolloway, the Third Circuit ruled that the Pennsylvania SupremeCourt’s decision denying Holloway’s Batson claim was „contrary to“ andan „unreasonable application“ of the Batson standard. In fact, in rendering both its Holloway and Brinson decision, theThird Circuit specifically rejected the requirement that a petitionerdevelop a complete record of the jury pool. In making its ruling inAbu-Jamal’s appeal, it reversed itself to make the pretext of anincomplete jury record his fatal misstep. Basing its ruling againstAbu-Jamal’s Batson claim on this invented pretext demonstrated howdesperate the majority was to block Abu-Jamal’s Batson claim. What themajority was implying was that Abu-Jamal’s jury pool may well haveconsisted of 60 or 70 percent black people and that therefore theprosecutor’s using 66 percent of his strikes to oust potential blackjurors was statistically normal and did not create a prima facie caseof 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 havefound the Pennsylvania Supreme Court’s ruling denying Abu-Jamal’sBatson claim „contrary to“ and an „unreasonable application“ of theBatson standard and remanded the case back to Federal District CourtJudge Yohn to hold an evidentiary hearing to determine theprosecutor’s reasons for excluding the 10 potential black jurors hestruck. If that hearing satisfied Judge Yohn that all of theprosecutor’s reasons for striking potential black jurors were raceneutral, the Batson claim would fail. If, conversely, that hearingrevealed racial discrimination on the part of the prosecutor duringjury selection – even if only concerning one potential juror – JudgeYohn would have been compelled to order a new trial for Abu-Jamal. Abu-Jamal’s final opportunity for judicial relief was filed with theU.S. Supreme Court in November of 2008 in the form of a Petition for aWrit of Certiorari. On February 4, the high court docketed andaccepted that filing.
According to Abu-Jamal’s lead attorney, RobertBryan of San Francisco, „The central issue in this case is racism injury selection. The prosecution systematically removed people fromsitting 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. SupremeCourt would grant Abu-Jamal’s petition. In its last term, the highcourt expanded its 1986 Batson ruling in its Synder v.Marylanddecision to warrant a new trial if a minority defendant couldshow the inference of racial bias in the prosecutor’s peremptoryexclusion of one juror. Under Batson, the defense needed to show aninference – i.e., a pattern – of racial bias in the overall juryselection process. Ironically, the Supreme Court’s 7-2 decisionstrengthening and expanding Batson’s reach was written by JusticeSamuel 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 decisionsby placing new restrictions on a defendant’s ability to file a Batsonclaim. The Third Circuit ruling against Abu-Jamal had the effect ofcreating new law by tampering with a long-established Supreme Courtprecedent. As a result, there seemed to be something more than a remotepossibility that the Supreme Court would agree to grant Abu-Jamal’swrit. A Writ of Certiorari is a decision by the Supreme Court to hear anappeal from a lower court. Supreme Court justices rarely give a reasonwhy they accept or deny Cert.
Although all nine justices are involvedin considering Cert Petitions, it takes only four justices to grant aWrit of Certiorari, even if five justices are against it. This isknown as „the rule of four.“ Despite needing only four votes to have his Batson claim argued, theSupreme Court on April 6, 2009 tersely denied Abu-Jamal’s request fora writ. The so-called „liberal block“ of Justices Stevens, Ginsberg,Souter, and Breyer disintegrated, yielding to the awesome politicalpower of the „Mumia exception.“ Abu-Jamal – who turned 55 on April 24, 2009 – will, barring the mostunlikely intervention by a future governor of Pennsylvania, spend therest of his life in prison for a crime he did not commit. Freedom Archives522 Valencia StreetSan Francisco, CA 94110 415 863-9977www.Freedomarchives.org Questions and comments may be sent to claude@freedomarchives.org