April 4, 2009
Mumia Abu-Jamal's Last Chance
for Justice
by J.
Patrick O'Connor
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.
Abu-Jamal's case has been politically charged
from the beginning. 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, first by the Pennsylvania
Supreme Court in 1989 and subsequently by a Federal District Court in 2001 where
the judge overturned his death sentence but left in place in his conviction –
and Abu-Jamal on death row – pending further appeals.
The latest example of what has become known
as "the Mumia exception" occurred in March of
2008 when the U.S. Court of Appeals for the Third Circuit, in a sharply divided
2-1 decision, turned down Abu-Jamal's appeal for a new trial based on the claim
that the prosecutor – through his use of peremptory challenges – purged
otherwise qualified blacks from his jury. In 1986, the U.S. Supreme Court handed
down its landmark Batson decision, ruling that racial discrimination in
jury selection is unconstitutional and merits the harmed defendant a new trial.
In a nutshell, the Third Circuit majority
denied Abu-Jamal's Batson claim on a technicality of its own invention,
not on its merits, ruling that his claim failed because he was not able to
establish the racial composition of the entire jury pool at his 1982 trial. In
issuing its ruling, the court, incredibly, ignored its own previous opposite
rulings in the Holloway v. Horn in 2004 and Brinson v. Vaughn in
2005 where it specifically ruled it was not required for the defendants in those
cases to establish such data.
Abu-Jamal's final opportunity for judicial
relief is now before the U.S. Supreme Court in the form of a Petition for a Writ
of Certiorari. On
February 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."
Joseph McGill, the prosecutor at Abu-Jamal's
trial, has stipulated in previous appeal proceedings that he used 10 of the 15
peremptory challenges he exercised to exclude blacks from the jury – a strike
rate of 66.67 percent against potential black jurors. Such a high strike rate is
in itself an extremely strong inference of discrimination. The result was that –
in a city with a black population of over 40 percent in 1982 – only three of the
12 jurors impaneled were black. As Third Circuit Judge Thomas Ambro pointedly
stated in his dissent, "It is my belief that the 66.67 percent strike rate,
without reference to the total venire [jury pool], can stand on its own for the
purpose of raising an inference of discrimination."
During last year's term, the U.S. Supreme
Court expanded its 1986 Batson ruling 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.
As a result, there is something more than a
remote possibility that the Supreme Court will agree to grant Abu-Jamal's writ.
In denying Abu-Jamal's Batson claim, the Third Circuit's ruling created
new law by placing new restrictions on a defendant's ability to file a Batson
claim. The Third Circuit, in effect, tampered with and undermined a
long-established Supreme Court ruling.
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."
If the Supreme Court were to grant Cert on
Abu-Jamal's Batson claim, one clean, simple option for it would be to
remand the case to federal district court for the Batson hearing both the
Federal District Court in 2001 and the Third Circuit in 2008 should have
ordered. Such a hearing would, in all probability except for "the Mumia
exception," lead to a new trial for Abu-Jamal. A new trial, considering the
utter travesty of justice his original trial represented, would set him free. If
Certiorari is denied, Abu-Jamal – now 54 – will, barring the most unlikely
intervention by a future governor of Pennsylvania, spend the rest of his life in
prison.
– 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.
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Crime Magazine editor Pat O'Connor's new book, The Framing of
Mumia Abu-Jamal is available online at
Amazon,
Barnes & Noble, and
Borders.
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