|
It is difficult to imagine that the
systematic race and class bias that permeate America's criminal
"justice" system could be set aside and that the nation's
most famed and innocent death row inmate and political prisoner of 25
years, Mumia Abu-Jamal, could win a new trial and freedom.
But that is precisely what appeared to be
unfolding on May 17 in the packed Ceremonial Courtroom of the Federal
Courthouse in Philadelphia as a three-judge panel of the U.S. Court of
Appeals for the Third Circuit, in full view of 200 riveted Mumia
supporters and others from across the country and around the world,
mercilessly queried Pennsylvania' s lead prosecutor and persecutor,
Hugh Burns.
In contrast, Mumia's three-person legal team
of Robert R. Bryan, Judith Ritter, and NAACP Legal Defense Fund amicus
curiae (friend of the court) counsel Christina Swarns appeared to have
the rapt, if not sympathetic, attention of the three judges during most
the two-and-a-half- hour proceeding. In almost every instance Mumia's
defense team responded to the panel's questions and arguments without
hesitation and with citations buttressing their central arguments.
The day's events left little doubt that these
Judges, Chief Justice Anthony Scirica and Judge Robert Cowen (Reagan
appointees), and Judge Thomas Ambro of the Clinton era, had carefully
read the voluminous briefs submitted by both sides and thoroughly
researched the history of the constitutional
issues involved, including the precedent-setting cases that govern
their interpretation.
Indeed, a number of the Third Circuit's
previous decisions on several critical issues that directly pertain to
Mumia's most telling arguments have marked this court as among the few
remaining "liberal" juridical institutions in the country.
Hugh Burns was hard pressed to offer his own
skewed interpretation of Third Circuit decisions when the judges, who
had themselves authored a number of the cases cited, were virtually
staring/glaring in his face as they peppered him with citations
contradicting his central arguments.
This appears to be the real reason why
Pennsylvania's prosecutors, looking for a more conservative panel of
judges, filed motions prior to the hearing to literally recuse (remove)
the entire Third Circuit from hearing Mumia's appeal. The prosecutors
argued
spuriously that the circuit included a judge
who is the wife of Pennsylvania Gov. Ed Rendell (Rendell has pledged to
sign a third warrant for Mumia's execution). They postulated that
Marjorie Rendell's presence, by virtue of her relation to the governor,
would constitute grounds for a future successful appeal of the
proceedings by Mumia in the event of any decision against him.
The prosecution' s effort to escape the Third
Circuit's jurisdiction was rejected, as Robert R. Byran's response
brief successfully countered that the move was a blatant effort to
circumvent the court for political reasons. The judges also granted
Bryan's
request to double the time for oral
arguments, granting each side one hour as opposed to the traditional 30
minutes.
Frame-up trial under "hanging
judge" Sabo
In a 1982 frame-up trial presided over by now
deceased "hanging judge" Albert Sabo, Mumia Abu-Jamal, an
award-winning radio journalist, was convicted of the Dec. 9, 1981
killing of Philadelphia police officer Daniel Faulkner. The grotesque
trial proceedings have been condemned by groups ranging from Amnesty
International and the NAACP to the European Parliament and the
presidents of France and South Africa.
More than a third of the 35 Philadelphia
police officers indicted at that time on charges of corruption, witness
intimidation, falsification of evidence, and involvement in drug
peddling and prostitution were involved in one way or another in
Mumia's case.
Judge Sabo himself was a retired member of
the death-penalty- obsessed Fraternal Order of Police and was widely
seen as "a prosecutor's best friend." Sabo sentenced to
execution a national record of 32 defendants (30 of whom were racial
minorities) over the course of his 14-year stint on the bench.
According to an affidavit filed by
award-winning court stenographer Terri Maurer Cater, she overheard Sabo
state during a Mumia trial recess period and in the presence of another
judge, "Yeah, and I'm going to help 'em fry the n****r."
This and other evidence of racial bias was
clearly presented to the court. In one instance, said Bryan, a Black
juror with a hearing disability, who explained that he could function
perfectly well when he turned up his hearing aid, was dismissed while a
white juror with the same disability was accepted.
The May 17 hearing began with prosecution
designee Hugh Burns presenting the state's case to reinstate the death
sentence and execute Mumia by lethal injection. A 2001 federal district court
decision by William H. Yohn Jr. had previously voided the trial court's
death sentence based on Judge Sabo's flawed and ambiguous oral
instructions and the similar written forms regarding mitigating
circumstances sufficient to sentence Mumia to life imprisonment rather
than death. In the face of
repeated questions on this issue it seemed apparent that Burns was
losing ground with his effort to cite cases to justify the flawed
instructions that operated to lead jurors to falsely conclude that they
had to be unanimous with regard to each and every mitigating
circumstance to find sufficient grounds to sentence Mumia to life
imprisonment as opposed to death.
In a withering presentation of Mumia's side
of this issue, Judith Ritter detailed the flaws in Sabo's oral and
written instructions and cited chapter and verse why similar unclear
and ambiguous instructions had been struck down by the courts.
If Mumia wins on this issue the state would
be compelled within 180 days to hold what amounts to a new trial,
except that the new jury would be barred from finding a verdict of
innocence and instead be limited to choosing a sentence of either life
in
prison or death.
Prosecutor McGill has stated that in this
eventuality the state has yet to decide if it would pursue a new trial.
Instead it might well conclude that its interests would best be served
by dropping the matter, thereby keeping Mumia in prison for life and
avoiding having the state's frame-up further exposed with a defense
presentation to a new jury, replete with volumes of new or suppressed evidence
that prove Mumia's innocence. Before facing such a prospect the state
has a further option, perhaps its magic weapon in turning and defeat it
might suffer into victory. It can appeal any decision against it to
that bastion of reaction and graveyard of civil liberties, U.S. Supreme
Court.
Black jurors excluded from trial
The next critical issue in dispute was
Mumia's contention that in violation of the famous U.S. Supreme Court
decision in the 1986 case of Batson v. Kentucky, racism guided the state's
use of preemptory challenges to exclude Black jurors. Of the 14
qualified Black jurors interviewed in Mumia's
1982 trial, prosecutor Joseph McGill eliminated 10 with preemptory
strikes, that is, removal with no stated cause.
Of the 25 possible white jurors, McGill
eliminated only five. That left Mumia with a jury of nine whites and
three Blacks (plus four white alternate jurors) in a city with a Black
population of 40 percent. The jury's racial composition was further
altered when Judge Sabo eliminated a Black juror already selected, who
was replaced with a white juror, for a final jury composition of 10
whites and two Blacks.
The Black juror was dismissed after she went
home in the evening when the trial was not in session to attend to her
sick cat despite Judge Sabo's refusal to grant her permission to do so.
But permission to leave the courtroom was not denied to a white juror
for who Sabo authorized a police escort to take a civil service exam
although it meant suspending the trial itself for a half day.
Race prejudice in jury selection by
prosecutor Joseph McGill was cited by Bryan in both Mumia's written
brief and Bryan's oral arguments. McGill, in six murder trials,
including Mumia's, had removed 74 percent of Black jurors with
preemptory challenges as compared to 25 percent of white jurors. Prior
to becoming Pennsylvania governor, District Attorney Ed Rendell had
established a two-term record of having prosecutors use preemptory
challenges to bar 58 percent of all Blacks from Philadelphia juries as
compared to 22 percent for whites.
Further, the routine exclusion of Black
jurors was the established practice of Philadelphia prosecutors, in
accord with an overtly racist 1982 State Supreme Court
decision in the case of Commonwealth v.
Henderson, which held, "The race, creed, national origin, sex or
other similar characteristics of a venireman (member of a jury pool)
may be proper considerations in exercising peremptory challenges."
That is, a Black person in Pennsylvania could
be legally excluded from a jury panel if the prosecutor believed that
he/she would be sympathetic to a Black defendant! Henderson was
reversed at least in part by the U.S. Supreme Court's 1986 Batson
decision. Hugh Burns' response
to the data proving the exclusion of Blacks was that it was irrelevant
and technically barred from consideration because the defense allegedly
did not present it in a timely manner, that is, during the 1995 Post
Conviction Relief Act hearing when new evidence was supposedly open to
consideration. At that time, however, the extent of the data was
unknown and did not become known until the case reached the federal
courts.
A new twist to the issue of racist exclusion
of Blacks was added to the hearing when the presiding judges themselves
queried the defense as to the composition of the entire venire (jury
pool) from which jurors were selected. Since no such data was available
on this matter two of the judges speculated that it was hypothetically
possible that the Black percentage of the entire jury pool could have
been so high that McGill's peremptory elimination of 71 percent of the
Black jurors might not constitute discrimination at all. Indeed, one
judge speculated with a straight face that it was possible that
"discrimination against whites" might be the case!
At no time during Mumia's decades of legal
battles had the prosecution itself raised such a possibility, either in
written briefs or oral arguments. The reason is obvious. The history of
jury pools in Philadelphia had always indicated that Blacks were highly
underrepresented, as opposed to the hypothetical scenario presented by
two of the judges that the possibility existed that Blacks could have
been over-represented. But the judges' toying with the issue could
indicate an inclination to establish a new precedent to undermine
Mumia's Batson claim.
Mumia's defense attorneys responded that even
in the absence of data on the overall jury pool, the sum total of the
evidence of discrimination they had presented constituted a prima facie
case of racial discrimination sufficient to comply with the standards
set forth in Batson.
Should the Third Circuit affirm the state's
violation of Batson, the result could either be a new trial or the
court's sending the issue of jury discrimination back to the previous
court for an evidentiary hearing, where the prosecution' s 1982
striking of each and every Black juror would have to be defended based
on grounds other than race. Bryan told me that such a hearing would
open the door wide to factually demonstrate that the exclusion of
Blacks was based on racist criteria.
Perhaps the most stunning dispute of the day
took place over the defense contention that prosecutor Joseph McGill's
summation to the jury included the statement, "If you find the
defendant guilty of course there would be appeal after appeal and
perhaps there could be a reversal of the case, or whatever, so that may
not be final."
It was here that the full force of the
three-judge panel was brought to bear. Hugh Burns was challenged to
justify why this statement did not constitute a violation of the U.S.
Constitution. The justices were referring to the due-process clause of
the 14th Amendment of the Bill of Rights as it applies to the Sixth
Amendment's fair-trial provisions, in short, the necessity of applying
the standard that a jury must operate with a "presumption of
innocence" to be negated only if the defendant is found to be
guilty "beyond a reasonable doubt."
The judges felt compelled to remind Burns
that only juries, bound by this standard, determine guilt or innocence,
not appeals courts, the latter being limited to deciding issues of the
common law (law made by judicial decisions), statutory law, and
associated constitutional interpretations.
McGill's "appeal after appeal"
statement to the jury was in fact his stock in trade. In fact, a 1986
decision of the Pennsylvania Supreme Court reversed a death sentence
and ordered a new trial in another case where McGill dutifully offered
the jury virtually the same "appeal after appeal" summation.
If the present judges apply this precedent,
not to mention the constitutionally- mandated "reasonable doubt" imperative, Mumia's guilty
verdict will be voided and he will be granted a new trial, a trial during
which all the evidence of innocence that had been previously suppressed
can be submitted to a new jury.
Of course, should the Third Circuit take this
course of action, it is likely that the state will appeal the decision
to the U.S. Supreme Court, placing Mumia's fate once again in the hands
of the reactionary judiciary.
Robert R. Bryan told this writer that
"if the Third Circuit follows the law, Mumia will be granted a new
trial," an eventuality that he believes "will result in
Mumia's freedom."
While it certainly appears that the
"law" is on Mumia's side, the conclusion that it will be
applied, as Bryan fully understands, is far from certain. "The
law, in its majestic equality," French novelist Anatole France
aptly observed, "permits the rich and the poor alike to sleep
under bridges, beg in the streets, or steal bread."
A review of "the law's" record to
date makes clear that its interpretation remains in the hands of a
racist and class-biased judiciary that has to date torn it to shreds
with tortuous renditions that defy logic.
It was Judge Sabo, whose version of "the
law" was applied nearly 100 times against defense motions
protesting his violation of Mumia's constitutional rights, who first
indicated how the system works. It was Federal District Court Judge
William H. Yohn's
interpretation of "the law" that
was applied to rule against 28 of Mumia's 29 constitutional issues
originally presented to his court. Yohn repeatedly cited the 1996
Anti-terrorism and Effective Death Penalty Act (AEDPA), signed by
President Clinton, to justify his interpretation of "the
law."
This reactionary law's central proposition
for the first time requires federal courts to grant a "presumption
of correctness" to the findings of state courts, in this case the
"legal" findings of racist Judge Albert Sabo. It was signed
by President Clinton with his own warning that "parts of it"
may be "found to be unconstitutional." This
"liberal" president was referring to the law's abrogation of
the presumption of innocence and associated denial of the right of
habeas corpus, that is, the right to appeal injustices to the federal
courts.
The AEDPA was so named because it was
designed to make state court death penalty
sentences "effective," that is,
immune from appeal to the federal courts. Prior to its passage a full
40 percent of all state court convictions in murder cases were reversed
on appeal. Why? The record shows that the major grounds for reversal
were incompetent counsel intimidation of witnesses and falsification of
evidence, in effect, the central issues in Mumia's case.
The AEDPA's new standard, applied to Mumia's
appeal, allowed Judge Yohn to eliminate from consideration the myriad
of factual and legal issues demonstrating police/prosecution' s
falsification and fabrication of evidence, intimidation of witnesses
and other atrocities under "the law" that had been buried
beneath a mountain of contrary "legal" findings over the past
25 years.
Judge Yohn felt compelled to cite another
novel interpretation of "the law," the present doctrine that
"innocence is no defense." Authored by the U.S. Supreme Court
in the infamous Herrera case, this holds that innocence is trumped by
timeliness. If evidence of innocence is submitted beyond a statutory
deadline, it is irrelevant. The legal process must embody
"finality," says the "law of the land" today, even
if the result is the execution of an innocent man.
Today, the truth of what happened in the
fateful early morning hours of Dec. 9, 1981, has been obliterated from
the record by a system that has reduced Mumia's chances of freedom to
the interpretations of a handful of "constitutional issues"
by three supposedly unbiased jurists, while the vast reserve of
evidence proving Mumia's absolute innocence had been long ago been
barred from consideration.
The political stakes involved in Mumia's case
are recognized by all. The federal government itself believed that it
was necessary to inform the Third Circuit where it stood when the House
of Representatives in the last session of the Republican Congress
passed a lying resolution condemning Mumia as a cop killer and warning
the French city of St. Denis that its naming of a street after Mumia
was unacceptable to the U.S. government.
This is but one indication that "the
law's" interpretation extends far beyond the judiciary. All but 31
House members approved this resolution that pitifully stated that Mumia
had exhausted all his appeals at a time when his most important appeal
was pending before one of the nation's highest courts. So much for the
objectivity, not to mention the factual accuracy, of the legislative
branch, the same branch of government that voted to hasten the
execution of the 3500 people (mainly Blacks and other oppressed
minorities) who inhabit the death-row sections of the profit-oriented
prison industrial complex.
What really happened on the morning of Dec.
9, 1981?
The truth of that day has been largely
obliterated by countless police and prosecution manipulations and falsifications
designed to buttress a scenario that cannot stand up to the massive
accumulations of facts that were known at the time and subsequently
unearthed. The facts are simple enough. A police officer, shortly
before 4:00 am, in a red-light district of Philadelphia, stopped a
banged-up blue Volkswagen bug with a dangling license plate and
demanded that the driver, Mumia's brother Billy Cook, present his
driver's license. Cook did so, but gave Officer Faulkner, who had put
in a call for police back-up, a temporary license that belonged to
Arnold Howard, who had given it to Kenneth Freeman, Cook's street-stall
business partner and a passenger in the VW bug. The license was almost
immediately found by the police in Faulkner's clothing, but only
reported to the defense 12 years later.
An argument ensued and Faulkner bludgeoned
Cook with his 17-inch flashlight. Mumia, parked in his taxicab a
distance away, observed the beating. He headed toward the scene and was
shot by Faulkner. Freeman then alighted from the VW and shot
Faulkner. Six witnesses say the
shooter, Freeman, fled the scene, with several describing his clothing,
hair, and physical characteristics, all vastly different from Mumia's.
Mumia, near dead, lay a few feet away from Faulkner. All the evidence
accumulated since that time proves these assertions and disproves the
prosecutions fabricated scenario (see freemumia.org).
The 31 photographs of the crime scene taken
minutes after the shootings by photojournalist Pedro Polokoff put the
lie to the testimony of police "eyewitness"
Robert Chobert, who claimed that he viewed
the murder from his taxicab that was parked immediately behind
Faulkner's police car. There was no such taxicab there.
Chobert changed his testimony three times to
conform to the police scenario. The photographs recently made public by
Polokoff show conclusively that the police
manipulated the crime scene, rearranging
critical evidence and destroying fingerprint evidence on guns found at
the scene.
The critical details of the frame-up have
been vividly recounted for decades, with new evidence found just months
ago further proving their veracity. New ballistic evidence revealed by
Michael Schiffman, a German researcher who wrote his PhD. thesis on the case, again
demonstrates the impossibility that Mumia murdered Officer Faulkner.
What can be done today to win Mumia's
freedom? In a perfect world the solution would be in the French
tradition of 1789. Drive the corrupt modern day monarchs of capital
from their haughty palaces of power and storm the Bastille to free the
innocent, including Mumia!
But we do yet not live in a perfect world.
Our power has proved sufficient to stay the executioner' s hand for 25
years and beat back two warrants for Mumia's execution. It has gotten
us to the point where a possible aberration in the system has allowed
the May 17 hearing to finally expose a critical aspects of Mumia's
frame-up. But we are still far from seeing a free Mumia walk out of his
supermax death row cell at the State Correctional Institution Greene in
Waynesburg, Pennsylvania.
But with the fight for one man's life, (Mumia
is Everyman and Everywoman who faces death at the hands of criminals.)
once again on the line and at center stage, we have a new opportunity
to reinvigorate our movement, broaden its base and ensure that justice
is done.
Our capacity to mobilize in unprecedented
numbers and make the political price of Mumia's murder and continued
incarceration too high to pay is central too the work ahead. History
has amply demonstrated that all of our historic victories stem from the
exercise of our collective power. That power lies with all who cherish
freedom and despise injustice. Join the fight for Mumia's freedom!
*Jeff Mackler is the Director of the Northern
California-based Mobilization to Free Mumia Abu-Jamal, freemumia.org;
415-255-1085.
|