- Von: „MUMIA ABU-JAMAL“ <>
Datum: Sonntag, 30. März 2008 18:13
- http://www.indybay.org/newsitems/2008/03/29/18489281.php
- Observations and analysis of Linn Washington Jr. on the federal Third
- Circuit ruling in the Mumia Abu-Jamal case issued on March 27, 2008. Washington, 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-