March 23, 2007
Third Circuit Appeals Court Sets Date for Oral Arguments in Mumia Case
By Dave Lindorff
Mumia Abu-Jamal, the Philadelpia journalist and former Black Panther activist who has been on Pennsylvania’s death row since 1982, will finally have his appeal of his conviction heard by a three-judge panel of the Third Circuit Court of Appeals, which set a date of May 17.
At that session, Abu-Jamal will argue that his original trial for the 1981 murder of police officer Daniel Faulkner was fatally flawed because of racial bias by the prosecutor in jury selection. He will argue that his conviction by that jury was improper because the prosecutor improperly was permitted to lessen jurors’ sense of responsibility by assuring them that whatever they decided, the defendant would get “appeal after appeal” and so their decision “would not be final.” He will also argue that his effort to appeal his conviction was damaged because his post-conviction relief act hearing was presided over by a judge who was clearly biased in favor of the district attorney.
The hearing will also hear a claim by the district attorney that Abu-Jamal’s death sentence—lifted by a Federal Judge in 2001—should be reinstated. The federal district court had ruled that Abu-Jamal’s sentence had been arrived at by a jury that was given improper and confusing instructions by Judge Albert Sabo, and that their sentencing form itself was
misleading.
Meanwhile, it has been learned that the Philadelphia District Attorneys Office earlier this month attempted
unsuccessfully to have the entire Third Circuit Court—one of the more liberal appeals courts in the nation—recused from hearing Abu-Jamal’s appeal on the grounds that Abu-Jamal’s claim of jury selection bias was charging then DA Ed Rendell (now Pennsylvania’s governor), with having deliberately violated the law. Rendel’s wife, Marjorie, is one of the appeals court judges in the Third Circuit.
Abu-Jamal’s attorney Robert R. Bryan, objecting to the DA’s effort, noted that there was no claim of illegality on the governor’s part, but rather on the part of the prosecutor in the case, Joseph McGill. It is alleged that a succession of Philadelphia DA’s encouraged their prosecutors to remove as many blacks as possible from capital juries, and documentary evidence has been submitted to show that this was done, both by the DA’s office over all, and by assistant DA McGill in his own capital cases. During jury selection for Abu-Jamal’s trial, 11 black potential jurors who had all agreed they
could vote for a death penalty, were removed by McGill using his available peremptory challenges (meaning he did not have to give a reason for his action).
In a letter to the DA’s office stating that the request to have all the circuit’s judges recused from hearing the case had been rejected, the clerk of the court said that such a request would have to be made not as a letter, but in the form of a formal motion. In a scolding tone, the letter notes that such a motion “must be in proper form, i.e. an original and three copies and certificate of service.”
“It must have been humiliating for the opposition” to receive such a note, comments attorney Bryan. He notes that to date, the DA has “not had the guts” to make such a formal motion, adding, “We’ll see.”
Authors Website: http://www.thiscantbehappening.net
Authors Bio: Dave Lindorff, a columnist for Counterpunch, is author of several recent books (“This Can’t Be Happening! Resisting the Disintegration of American Democracy” and “Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal”). His latest book, coauthored with Barbara Olshanshky, is “The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office” (St. Martin’s Press, May 2006). His writing is available at
http://www.thiscantbehappening.net .
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March 22, 2007
Legal Update
Re: Mumia Abu-Jamal v. Martin Horn, Pennsylvania Director of Corrections
U.S. Court of Appeals Nos. 0 1-90 14,02-900 1 (death penalty)
Dear Friends:
Today notification was received that oral argument in the case of my client, Mumia Abu-Jamal, is scheduled on Thursday, May 17, 9:30 am, in the U.S. Court of Appeals for the Third Circuit, Ceremonial Courtroom, 1″ Floor, U.S. Courthouse, 6″‘ and Market Streets, Philadelphia. The NAACP Legal Defense and Educational Fund, Inc., and the National Lawyers Guild, which have filed amicus curiae (friend of the court) briefs, are also participating.
This case concerns Mr. Abu-Jamal’s right to a fair trial, the struggle against the death penalty, and the political repression of an outspoken journalist. Racism and politics are threads that have run through this case since his 1981 arrest. The complex issues under consideration, which are of great constitutional significance, include:
Whether Mr. Abu-Jamal was denied the right to due process of law and a fair trial under the Fifth, Sixth and Fourteenth Amendments because of the prosecutor’s “appeal-after-appeal” argument which encouraged the jury to disregard the presumption of innocence and reasonable doubt, and err on the side of guilt.
Whether the prosecution’s use of peremptory challenges to exclude African Americans from sitting on the jury violated Mr. Abu-Jamal’s rights to due process and equal protection of the law under the Sixth and Fourteenth Amendments, and contravened Batson v. Kentucky, 476 U.S. 79 (1986).
Whether the jury instructions and verdict form that resulted in the death penalty deprived Mr. Abu- Jamal of rights guaranteed by the Eight and Fourteenth Amendments to due process of law, equal protection of the law, and not to be subjected to cruel and unusual punishment, and violated Mills v. Maryland, 486 U.S. 367 (1988), since the judge precluded the jurors from considering any mitigating evidence unless they all agreed on the existence of a particular circumstance.
Whether Mr. Abu-Jamal was denied due process and equal protection of the law under the Sixth and Fourteenth Amendments during post-conviction hearings as the result of the bias and racism of Judge Albert F. Sabo which included the comment that he was “going to help’em fry the ni – – er”.
Recently the Philadelphia District Attorney’s Office sent a letter to the court suggesting that the entire Third Circuit should disqualify itself from deciding the case of my client. We filed a reply strongly objecting to this absurd request, explaining that the position of opposing counsel was “utterly unfounded and should be rejected.” On March 10 the court rebuked the prosecution, advising that it had failed to follow proper procedure and thus no action would be taken.
Professor Judith L. Ritter, associate counsel, and I are in this case to win a new and fair trial for Mr. Abu-Jamal. The goal is for our client to be free. Nevertheless, he remains in great danger. If all is lost, he will be executed. Your interest in this struggle for human rights and against the death penalty is appreciated.
Yours very truly,
Robert R. Bryan
Lead counsel for Mumia Abu-Jamal
 
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