Ruling of 3rd Circuit Court
Another ‘Mumia exception’
By
Betsey Piette
Philadelphia
Published Apr 3, 2008 1:13 AM
A ruling by the three-judge panel of the Third Circuit Court of Appeals
rejecting Mumia Abu-Jamal’s appeals has left supporters outraged and
convinced that, for this internationally known political prisoner, there is no
chance for a “fair trial” within the U.S. injustice system.
On March 27, the long-awaited decision by the Third Circuit Court judges
followed a pattern that’s become all too obvious in Abu-Jamal’s
hearings before Pennsylvania courts: ignore their own legal precedents and make
exceptions to the rules when it comes to decisions regarding Mumia.
This practice of creating new court standards applied only to Abu-Jamal has
been dubbed “the Mumia exception” and was criticized in an Amnesty
International report of the Abu-Jamal case controversy released in 2001.
The three-judge panel consisting of Reagan appointees Chief Judge Anthony
Scirica and Judge Robert Cowan, and Judge Thomas Ambro, a Clinton appointee,
refused to grant Abu-Jamal a new hearing or new trial on three compelling
issues: prosecutors use of racism to exclude African Americans from the jury
during Abu-Jamal’s 1982 trial; the prosecutor making improper comments to
that 1982 jury at the trial’s end; and pro-prosecution bias by Judge
Albert Sabo, who ruled over both the 1982 trial and a 1995 appeals hearing.
However, the appeals court said that Abu-Jamal, who has been on death row in
Pennsylvania for almost twenty-six years, deserves a new sentencing hearing
because of flawed jury instructions, thereby upholding a December 2001 ruling
to this effect by Federal District Judge William Yohn.
“The court did order a new jury trial on the issue of whether he should
be on death row,” attorney Robert Bryan told Democracy Now.
“In effect, what they did ... was throw out the death penalty. So
that’s the good part of the decision. On the negative side ... the court
ruled against granting a new trial on the issue of guilt or innocence.”
Bryan stated that he will now ask the entire Third Circuit Court to review the
issues. Philadelphia District Attorney Lynne Abraham has indicated that she
will continue to seek the death penalty for Abu-Jamal.
At a March 31 press conference outside the Federal Court building in
Philadelphia, Abu-Jamal’s supporters denounced the court’s decision
and vowed to up the ante in their fight to free Mumia. Pam Africa of
International Concerned Family and Friends of Mumia Abu-Jamal noted: “The
power of the people has to be unleashed because what the court did is
wrong!”
“This is not the first precedent the courts have broken that’s gone
against Mumia, but this is one that’s going to resonate around the
world,” said Africa, who announced plans for a national protest in
Philadelphia on Saturday, April 19.
Africa said: “Last week’s court decision was not a victory. While
we obviously prefer to have Mumia alive, instead of executed, life in prison
without parole is an unacceptable sentence for an innocent man.”
Journalist Linn Washington Jr., who has followed Abu-Jamal’s case since
1981, noted that there has been instance after instance where the courts
ignored compelling evidence that justifies a new trial for Mumia.
“Precedent in American law means courts following previous court rulings
when determining specific legal issues. Precedent is the bedrock of American
law which requires courts to follow precedent unless significant evidence
and/or compelling rationales necessitate changing precedent,” Washington
stated. “This Third Circuit ruling changes precedent by applying legal
procedures in a highly questionable manner to dismiss compelling evidence of
injustice against Abu-Jamal.”
“What is different about this appellate court ruling,” Washington
concluded, “is that for the first time there has been dissent from a
judge involved,” referring to Judge Thomas Ambro’s strong exception
to his colleagues regarding their decision on Abu-Jamal’s appeal
concerning racism in the jury selection process.
Judges Cowan and Scirica rejected Abu-Jamal’s claim of racial bias
claiming his protest of jury rejection wasn’t timely and he did not
provide the court with evidence on the racial make-up of the jury pool from
which jurors in his 1982 trial were selected. They also ignored evidence that a
systematic practice of excluding African Americans from Philadelphia juries
existed throughout the 1970s and 1980s and was acknowledged by a former
Philadelphia prosecutor.
Basis of dissent
In his 41-page dissent, Judge Ambro challenged the blatant double standard in
the court’s rejection of the “Batson” claim regarding racist
jury selection. In Batson v. Kentucky in 1986 the Supreme Court established
that excluding even one single person from a jury because of their race
violated the Equal Protection Clause of the U.S. Constitution. As recently as
March 19, the Supreme Court affirmed that position in a 7 to 2 ruling in
another death penalty case, Snyder v. Louisiana.
Ambro made several references to precedents set by the Third Circuit Court that
were ignored in the panel’s ruling. “We have repeatedly said that a
defendant can make out a prima facie case for jury selection discrimination by
showing that the prosecution struck a single juror because of race ... in fact
in United States v. Clemons, we explained, ‘striking a single black juror
could constitute a prima facie case even when blacks ultimately sit in the
panel and even when valid reasons exist for striking other blacks.’
“Yet the majority focuses on the absence of information about the racial
composition and the total number of the venire (jury pool) ... claiming the
exclusion rate is necessary to access whether an inference of discrimination
can be discerned in Abu-Jamal’s case. Such a focus is contrary to the
non-discrimination principle underpinning Batson, and it conflicts with our
Court’s precedents, in which we have held that there is no ‘magic
number or percentage necessary’ to trigger a Batson inquiry. ...
“I see no reason why we should not afford Abu-Jamal the courtesy of our
precedents.” Ambro further stated, “Why we pick this case to depart
from that reasoning I do not know.” This is the first time any judge has
publicly acknowledged “the Mumia exception.”
The panel’s majority claims that Abu-Jamal forfeited his Batson claim by
failing to make a timely objection to improper procedures by prosecutors. It is
blatantly absurd, however, to hold Abu-Jamal’s original lawyer
responsible for not strictly following a procedure in 1982 that wasn’t
established until 1986.
Equally absurd was the majority’s decision to deny an evidentiary hearing
to Abu-Jamal because he did not provide them with evidence regarding the jury
pool’s ethnic composition, evidence that would normally be brought
forward in just such a hearing.
The panel’s findings on Abu-Jamal’s other appeals were equally
outrageous. The judges unanimously rejected Abu-Jamal’s claim that Judge
Albert Sabo, who presided over both his 1982 trial and 1995 Post Conviction
Relief Act hearing, had been prejudicial against him. Sabo’s biased
antics during that 1995 proceeding were so outrageous that hundreds of
newspapers around the country, including the Philadelphia Inquirer, criticized
his pro-prosecution stance.
The panel also unanimously rejected the claim that Prosecutor Joseph McGill had
diminished the jury’s sense of responsibility during the conviction phase
of the trial by telling them their decision would not be final as there would
be “appeal after appeal.”
The judges, while not denying McGill’s statement may have had an impact,
stated that court precedent only used such evidence to overturn death
sentences, not convictions, further denying Abu-Jamal relief he should have
received if these federal appeals judges fairly followed their own established
law.
More information on this case, including Pam Africa’s April 19th
statement, the full text of the March 27 court ruling and protest actions for
Mumia can be found at www.millions4mumia.org.
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