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J. Patrick O'Connor is
the editor of Crime Magazine (www.crimemagazine.
com) and the author of The Framing of Mumia
Abu-Jamal, published by Lawrence Hill Books in 2008.
Since
his conviction in 1982 for the murder of Philadelphia Police Officer
Daniel Faulkner, Mumia Abu-Jamal, through his
numerous books, essays and radio commentaries, has become the face of
the anti-death-penalty movement in the United States and an international cause
célèbre.
Paris, for example, made him an
honorary citizen in 2003, bestowing the honor for the first time since
Pablo Picasso received it in 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 invisible 3600 Death Row inmates in
the United States.
The
case of Mumia Abu-Jamal cries out for justice
not because he is famous but because he is innocent. Kenneth Freeman,
the street-vendor partner of Abu-Jamal’s younger brother, Billy Cook,
killed Officer Faulkner moments after Faulkner shot Abu-Jamal in the
chest as he approached the scene where Faulkner had pulled over the car
Cook was driving. When Faulkner began beating Cook with an 18-inch long
flashlight, Abu-Jamal ran from his nearby taxi to come to his brother’s
aid.
After
Abu-Jamal was shot and collapsed to the street, Freeman emerged from
Cook’s car, wrestled Faulkner to the sidewalk and then shot him to
death. Freeman fled the scene on foot. Numerous witnesses told police
they saw one or more black men fleeing right after the officer was
shot. A driver’s license application found in Faulkner’s shirt pocket
led the police directly to Freeman’s home within hours of the shooting.
But
the police did not want Freeman for this killing, releasing
him without him even having to call his attorney. The police, led by
the corrupt Inspector Alfonzo Giordano, who took charge of the crime
scene within minutes of the shooting, wanted to pin Faulkner’s death on
the blacked-out, police-bashing radio reporter at the scene. Freeman
they would deal with later, meting out their own brand of street
justice in the dead of night.
Five
days after Faulkner’s death, the Center City newsstand where Freeman
and Billy Cook operated a vending stand burned to the ground at about 3
a.m. Freeman told a Philadelphia Inquirer reporter hours after the
arson that "there was no question in my mind that the police are
behind this."
The
Inquirer also quoted a Center City police officer who was on
patrol in the area that morning as saying, "It’s entirely
possible" that "certain sick members" of his department
were responsible. "All I know is when I got to the station to
start my shift at 7:30 this morning, the station
house was filled with Cheshire grins." Although the
"unsolved" arson bankrupted Freeman and Cook, a worse fate
awaited Freeman.
On
the night in 1985 when the police infamously firebombed the MOVE home
and burned down 60 other row houses in the process, incinerating 11
MOVE members including five children, Freeman’s dead body would be
found nude and gagged in an empty lot, his hands handcuffed behind his
back. 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 the Philly chapter
of the Black Panther Party at age 15. The next year he was named
"lieutenant of information," an appointment the Inquirer ran
on its front page, picturing the young radical at Panther headquarters.
Even though the chapter would soon dissolve, both the police and the
FBI continued to monitor Abu-Jamal when he left Philadelphia to attend Goddard College in Vermont and on his return to Philadelphia 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 of the radical counter-culture group MOVE.
Throughout the 1970s and well into the 1980s, police confrontations
with MOVE were brutal displays of civic discord and police abuse that
culminated in the 1985 firebombing.
Abu-Jamal’s
case has been politically charged from the beginning. By the time he
was arrested for the murder of Officer Faulkner, he was a marked man to
the police for his Black Panther Party association and his favorable
reporting of MOVE. Inspector Giordano, who detested both Abu-Jamal and
MOVE, would set the framing of Abu-Jamal in motion by falsely claiming
that Abu-Jamal had told him in the paddy wagon that he had killed
Faulkner.
(Giordano
would not be called by the prosecution 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 on what would prove to be well-founded
"suspicions of corruption." An FBI probe of rank corruption
within the Philadelphia Police Department—the largest ever conducted by
the U.S. Justice Department of a police force—would lead to Giordano’s
conviction four years later.
The
FBI investigation would ensnare numerous other high-ranking Philadelphia police officials and
officers, many of them involved in Abu-Jamal’s arrest and trial. Deputy
Police Commissioner James Martin, who was in charge of all major
investigations, including Faulkner’s death, was the ringleader of a
vast extortion enterprise operating in City Center.)
The
trial of Abu-Jamal was a monumental miscarriage of justice from
beginning to end, representing an extreme case of prosecutorial abuse
and judicial bias. A pamphlet published by Amnesty International in
2000 stated it had "determined that numerous aspects of Mumia Abu-Jamal’s case clearly failed to meet
minimum standards safeguarding the fairness of legal proceedings."
The
trial judge, Common Pleas Court Judge Albert F. Sabo, presided at more
trials that resulted in the defendants receiving the death penalty than
any judge in the nation. Of the 31 so sentenced, five won reversals on
appeal, an indication of extreme judicial bias. The Inquirer called him
"a defendant’s worst nightmare," a prominent defense attorney
referred to him as "a prosecutor in robes."
A
former court 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 his right
to represent himself and interview potential jurors despite the fact
that the Inquirer reported Abu-Jamal was "intent and business
like" in his questioning. On the second day of the trial, Sabo
removed Abu-Jamal from the courtroom for insisting that MOVE founder
John Africa replace his court-appointed backup counsel, Anthony
Jackson. In turn, Sabo appointed Jackson to represent Abu-Jamal. This
would put to rout the possibility of a fair trial.
Abu-Jamal’s
first major appeal issue developed during jury selection when the
prosecutor, Assistant D.A. Joseph McGill, used 10 or 11 of the 15
peremptory challenges he exercised to keep otherwise qualified blacks
from sitting on this death-penalty- vetted jury. In a city with more
than a 40 percent black population at the time, Abu-Jamal’s jury ended
up with only two blacks. In 1986—four years after Abu-Jamal’s trial—the
U.S. Supreme Court ruled in Batson v. Kentucky that it was
unconstitutional for a prosecutor to exclude potential jurors on the
basis of race. The ruling was retroactive.
The
second major constitutional claim that would arise occurred at the end
of the guilt phase of the trial when the prosecutor referenced the
appeal process in his summation to the jury. He told the jury that if
they found Abu-Jamal guilty of murder in the first degree that "there
would be appeal after appeal and perhaps there could be a reversal of
the case, or whatever, so that may not be final.’
Although
Officer Faulkner had been killed by Kenneth Freeman, the prosecution
mounted its evidentiary case against Abu-Jamal on the perjured
testimony of a prostitute informant and a cab driver with a suspended
license for two DUIs who was
on probation for throwing a Molotov cocktail into a school yard during
a school day. Both of these witnesses had been handpicked by Giordano
at the crime scene.
“Judicial machinations”
As
Amnesty International established in its 2000 pamphlet entitled
"The Case of Mumia Abu-Jamal: A Life in
the Balance," his tortuous appeal process has been fraught with
"judicial machinations." Claims that won the day in other
cases were repeatedly denied him.
In
1989, the Pennsylvania Supreme Court turned down his first appeal even
though one of his claims was almost identical to one that had persuaded
the same court to grant Lawrence Baker a new trial in 1986. In that case,
Commonwealth v. Baker, the court overturned Baker’s death sentence for
first-degree murder on the grounds that the prosecutor improperly
referenced the lengthy appeal process afforded those sentenced to
death. That prosecutor—Joseph McGill—was the same prosecutor who used
similar, almost verbatim, language in his summation during both the
guilt and sentencing phases of Mumia’s trial.
The judge who failed to strike the language in the Baker case was the
same judge who presided at Mumia’s trial,
Common Pleas Court Judge 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 of
death." When Abu-Jamal’s appeal included the very same issue, the
court reversed its own precedent in the matter, denying the claim in a
shocking unanimous decision.
A
year later, in Commonwealth v. Beasley, the Pennsylvania Supreme Court
reinstated the death sentence of Leslie Beasley, but exerted its
supervisory power to adopt a "per se rule precluding all remarks
about the appellate process in all future trials." This rule not
only reinstated the Baker precedent but it ordered all prosecutors in
the state to refrain once and for all from referencing the appellate
process in summations to the jury. The court could have made this new
rule retroactive to Mumia’s case, but did
not.
As
Amnesty International declared in its pamphlet about the case, the
Pennsylvania Supreme Court’s judicial scheming leaves "the
disturbing impression that the court invented a new standard of
procedure to apply to one case only: that of Mumia
Abu-Jamal," Temple University journalism professor Linn Washington
aptly dubs this and subsequent court decisions denying Mumia a new trial "the Mumia
exception."
Abu-Jamal’s
Post-Conviction Relief Act hearing in 1995 was doomed from the
beginning when Judge Sabo—the original trial judge—would not recuse himself from the case and the Pennsylvania
Supreme Court would not remove him for bias.
Abu-Jamal’s
federal habeas corpus appeal—decided by Federal District Judge William Yohn in 2001—should have resulted in at least an
evidentiary hearing on Abu-Jamal’s Batson claim that the prosecutor
unconstitutionally purged blacks from the jury by using peremptory
strikes to exclude 10 or 11 otherwise qualified black jurors from being
empanelled.
Abu-Jamal’s
attorneys had included a study conducted by Professor David Baldus that documented the systematic use of
peremptory challenges to exclude blacks by Prosecutor McGill in the six
death-penalty cases he prosecuted in Common Pleas Court in
Philadelphia. Abu-Jamal’s trial was one of the six trials studied by Baldus. Judge Yohn barred
the study on the erroneous grounds that the study was not from a
relevant time period when, in fact, it was completely relevant.
Judge
Yohn’s error was egregious and could have
been easily avoided if he had held one evidentiary hearing on that
defense 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 corrected that
district court mistake by remanding Abu-Jamal’s case back to Judge Yohn to hold the evidentiary hearing on the Batson
claim, but in another example of the "Mumia
exception," the court instead continued the long and tortured
denial of Mumia’s right to a fair trial. In a
2 to 1 decision released on March 27,
2008
that reeked of politics and racism, the court ruled that Abu-Jamal had
failed to meet his burden in providing a prima facie case. He failed,
the majority wrote, because his attorneys were unable to establish the
racial composition of the entire jury pool.
In
the decision written by Chief Judge Anthony Scirica,
the court stated that "Abu-Jamal had the opportunity to develop
this evidence at the PCRA evidentiary hearing, but failed to do so.
There may be instances where a prima facie case can be made without
evidence of the strike rate and exclusion rate. But, in this case
[i.e., "the Mumia exception" is in
play], we cannot find the Pennsylvania Supreme Court’s ruling [denying
the Batson claim] unreasonable based on this incomplete record."
In
a nutshell, the majority denied Mumia’s
Batson claim on a technicality of its own invention, not on its merits.
It also broke with the sacrosanct stare decisis
doctrine, the principle that the precedent decisions are to be followed
by the courts, by ignoring its own previous opposite ruling in the
Holloway v. Horn case of 2004 and the Brinson v. Vaughn case of 2005.
It
is a general maxim that when a point has been settled by decision, it
forms a precedent which is not afterwards to be departed from. In a
Ninth Circuit Court of Appeals ruling in 1989 in a case entitled United States v. Washington, the decision stated that
an appeal court’s panel is "bound by decisions of prior panels
unless an en banc decision, Supreme Court decision, or subsequent
legislation undermines those decisions." None of those variables
were in play when the Third Circuit Court majority ruled against 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 for making a prima facie case under
Batson. In holding otherwise, they raise the standard necessary to make
out a prima facie case beyond what Batson calls for."
In
other words, the majority, in this case alone, has upped the ante
required for making a Batson claim beyond what the U.S. Supreme Court
stipulated. When ruling in Batson in 1986, the U.S. Supreme Court did
not require that the racial composition of the entire jury pool be
known before a Batson claim may be raised. The high court ruled that a
defendant must show only "an inference" of prosecutorial
discrimination in purging potential jurors. Prosecutor McGill’s using
10 or 11 of the 15 peremptory strikes he deployed is just such an
inference—and an extremely strong one.
McGill’s
strike rate of over 66 percent against potential black jurors is in
itself prima facie evidence of race discrimination. Prima facie is a
Latin term meaning "at first view," meaning the evidence
being presented is presumed to be true unless disproved.
In
commenting on Holloway v. Horn, a Batson-type case with striking
similarities to Abu-Jamal’s claim, Judge Ambro—the
lone Democrat-appointed judge on the three judge panel—demonstrated
just how disingenuous the panel’s ruling against Abu-Jamal’s Batson
claim was. "In Holloway, Judge Ambro
wrote in his 41-page dissent, "we emphasized that ‘requiring the
presentation of [a record detailing the race of the venire] simply to
move past the first state—the prima facie stage—in the Batson analysis
places an undue burden upon the defendant.’ There we found the strike
rate—11 of 12 peremptory strikes against black persons—satisfied the
prima facie burden."
In
Holloway, the Third Circuit ruled that the Pennsylvania Supreme Court’s
decision denying Holloway’s Batson claim was "contrary to"
and an "unreasonable application" of the Batson standard.
In
fact, in rendering both its Holloway and Brinson decisions, the Third
Circuit specifically rejected the requirement that a petitioner develop
a complete record of the jury pool. In making its ruling in Abu-Jamal’s
appeal, it reversed itself to make the pretext of an incomplete jury
record his fatal misstep. Basing its ruling against Abu-Jamal’s Batson
claim on this invented pretext demonstrated how desperate the majority
was to block Abu-Jamal’s Batson claim. What the majority was implying
was that Abu-Jamal’s jury pool may well have consisted of 60 or 70
percent black people and that therefore the prosecutor’s using 66
percent of his strikes to oust potential black jurors was statistically
normal and did not create a prima facie case of 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 have found the
Pennsylvania Supreme Court’s ruling denying Abu-Jamal’s Batson claim
"contrary to" and an "unreasonable application" of
the Batson standard and remanded the case back to Federal District
Court Judge Yohn to hold an evidentiary
hearing to determine the prosecutor’s reasons for excluding the 10
potential black jurors he struck.
If
that hearing satisfied Judge Yohn that all of
the prosecutor’s reasons for striking potential black jurors were race
neutral, the Batson claim would fail. If, conversely, that hearing
revealed racial discrimination on the part of the prosecutor during
jury selection—even if only concerning one potential juror—Judge Yohn would have been compelled to order a new trial
for Abu-Jamal.
Abu-Jamal’s
final opportunity for judicial relief was filed with the U.S. Supreme
Court in November of 2008 in the form of a Petition for a Writ of
Certiorari. On Feb. 4, the high court docketed and accepted that
filing. According to Abu-Jamal’s lead attorney, Robert Bryan of San
Francisco, "The central issue in this case is racism in jury
selection. The prosecution systematically removed people from sitting
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. Supreme
Court would grant Abu-Jamal’s petition. In its last term, the high
court expanded its 1986 Batson ruling in its Synder
v. Maryland decision to warrant a new trial if a minority defendant
could show the inference of racial bias in the prosecutor’s peremptory
exclusion of one juror. Under Batson, the defense needed to show
an inference—i.e., a pattern—of racial bias in the overall jury
selection process. Ironically, the Supreme Court’s 7-2 decision
strengthening and expanding Batson’s reach was written by Justice
Samuel 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
decisions by placing new restrictions on a defendant’s ability to file
a Batson claim.
The
Third Circuit ruling against Abu-Jamal had the effect of creating new
law by tampering with a long-established Supreme Court precedent. As a
result, there seemed to be something more than a remote possibility
that the Supreme Court would agree to grant Abu-Jamal’s writ.
A
Writ of Certiorari is a decision by the Supreme Court to hear an appeal
from a lower court. Supreme Court justices rarely give a reason why
they accept or deny Cert. Although all nine justices are involved in considering
Cert Petitions, it takes only four justices to grant a Writ of
Certiorari, even if five justices are against it. This is known as
"the rule of four."
Despite
needing only four votes to have his Batson claim argued, the Supreme
Court on April 6, 2009, tersely denied Abu-Jamal’s
request for a writ. The so-called "liberal block" of Justices
Stevens, Ginsberg, Souter, and Breyer disintegrated, yielding to the awesome
political power of the "Mumia
exception."
Abu-Jamal—who
turned 55 on April 24, 2009—will, barring the most unlikely
intervention by a future governor of Pennsylvania, spend the rest of
his life in prison for a crime he did not commit.
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