Linn Washington zum Urteil vom 27.3.2008

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-