Deep Politics Forum

Mumia Abu-Jamal’s Last Chance for Justice

By J. Patrick O’Connor
http://nyc.indymedia.org/en/2009/04/104509.html
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 (http://www.crimemagazine.com) and the author of The Framing of Mumia Abu-Jamal, published by Lawrence Hill Books in 2008.

FROM THE 'JOURNALISTS FOR MUMIA' WEBSITE:

**New articles on O'Connor's book by Carolina Saldaña, Linn Washington Jr., Hans Bennett, and radio shows Law and Disorder, Jazz and Justice, and KOWA**

VIDEO interview with J. Patrick O'Connor:

(WATCH PARTS 1, 2, and 3)

On May 1, the day of the book's release, AJN interviewed O'Connor at Philadelphia City Hall. The next day, The Framing of Mumia Abu-Jamal was featured in The NY Times: "Book Asserts Black Reporter Didn't Kill White Officer in '81."

Read our exclusive interview from April, focusing on the frame-up, Kenneth Freeman, the March 27 court ruling, and Frank Rizzo's legacy.


O’Connor argues that the actual shooter was Kenneth Freeman and he criticizes the media, who “bought into the prosecution’s story line early on and has never been able to see this case for what it is: a framing of an innocent and peace loving man.” For more on “The Framing of Mumia Abu-Jamal” we are featuring an excerpt, a previous interview, O’Connor’s review of “Murdered By Mumia,” and his response to the March 27 ruling.
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http://www.counterpunch.org/lindorff06302010.html
Throwing Mumia Under the Bus

The Politics of Death

By DAVE LINDORFF
On the evening of March 4, participants at the Fourth World Congress Against the Death Penalty in Geneva, Switzerland had assembled from all over the globe for a dramatic Voices of Victims evening. It got more dramatic than they had anticipated though, when suddenly a cell phone rang and Robert R. Bryan, lead defense attorney for Mumia Abu-Jamal, jumped up on the stage to announce that his client had called him from death row in Pennsylvania.

The audience sat in rapt silence as the emcee held the phone up to the microphone. Abu-Jamal, on death row for 28 years after a widely disputed conviction for the murder of Philadelphia police officer Daniel Faulkner, greeted the delegates and then, as he has done on many occasions before, described to them the horrors of life in prison for the 20,000 people around the world who are awaiting execution.

A small group of American death penalty abolitionist leaders, led by Renny Cushing, executive director of Murder Victims' Families for Human Rights, stalked out of the hall. Two members of MVFHR, however, remained in the hall: Bill Babbitt, whose brother Manny, a Vietnam vet suffering acute post-traumatic stress disorder, was executed in California; and Bill Pelke, whose grandmother was murdered by a girl whom he later befriended and helped to spare from execution. Babbitt even joined Bryan onstage during Abu-Jamal's brief address.

What neither Babbitt nor Pelke, nor Abu-Jamal and his attorney, Bryan, knew at the time was that way back in December, leaders and individual board members of several of the organizations in the US abolitionist movement had signed--without their full boards’ or their own memberships’ knowledge--a <a href=“http://www.thiscantbehappening.net/node/116”>“confidential” memorandum</a>,which they then sent to the French organizers of the World Congress, stating bluntly that, “As international representatives of the US abolition movement, we cannot agree to the involvement of Abu-Jamal or his lawyers in the World Congress beyond attendance.”

Purporting to be from “the US members of the Steering Committee” of the World Coalition Against the Death Penalty (though hardly an inclusive list of that committee’s membership) and titled, “Involvement of Mumia Abu-Jamal endangers the US coalition for abolition of the death penalty,” the memo claimed that the French organizers of the World Congress, Together Against the Death Penalty (ECPM), had arranged to have Abu-Jamal speak “over objection.” The memo further further asserted that the abolitionist movement in the US is trying to “cultivate” the support of the ultra-conservative and staunchly pro-death penalty Fraternal Order of Police (FOP), an organization representing some 35,000 police officers in the US that advocates the execution of Abu-Jamal and all other prisoners convicted of killing of police officers. The FOP, said the memo, has “announced a boycott of organizations and individuals who support Abu-Jamal,” and therefore anything done by the Congress to aid his cause would be “dangerously counter-productive to the abolition movement in the US.”

This past week we obtained a copy of that secret memorandum.
When we showed it to some other members of the boards of the organizations whose officers or individual board members had signed their names to it, responses ranged from consternation to outrage. Babbitt’s brother Manny was killed as a direct result of a corrupt law enforcement system in California that for political points pressed for execution, even though it was clear from medical testimony that the elderly grandmother he allegedly killed actually died of shock when she discovered him breaking and entering her apartment. Left in the dark about the memo despite his being on the MVFHR board, Babbitt said, “My brother Manny’s last words to me were to always take the high road, and to me that means telling the truth and being open and transparent.” He added, regarding the content of the memo, “I think throwing Mumia under the bus is not the way to go in the abolitionist movement. You don’t make bargains with a wolf whose motive is to devour.”

Robert Meeropol, a son of Ethyl and Julius Rosenberg, who were executed as spies in 1953, is also a member of the MVFHR board. Currently traveling on behalf of the organization in Asia, he said through a staffer in the US that he did not know about the memo, and added that he still stands “fully in support of a new trial for Mumia Abu-Jamal.”

Several calls seeking a comment from Cushing or Lowenstein remain unanswered, though a staffer at the MVFHR Boston office, Susanna Sheffer, said, “This is a complicated thing. You need to understand the depth and texture of this.”

Also surprised at the memo was actor Michael Farrell, president of the California abolitionist group Death Penalty Focus. Farrell, a long-time supporter of the call for a new trial for Abu-Jamal, said he had never seen the memo, though it was signed by a member of the DPF board, attorney Elizabeth Zitrin.

Other signers of the memo were Thomas H. “Speedy” Rice of the National Association of Criminal Defense Attorneys, Kritsin Houlé of the Texas Coalition to Abolish the Death Penalty and Juan Matos de Juan of the Puerto Rican Bar Assn.

Bryan, a veteran death penalty defense lawyer who served 10 years on the board of the National Coalition to Abolish the Death Penalty--three of them as the organization’s chair--says, “In all my years as an activist opposing the death penalty, I have never heard of any individual or group in that fight singling out anyone as an exception to our campaign to abolish capital punishment. Everyone is treated equally. To single someone out and say they don’t count is chilling. Where do you draw the line? At people accused of killing cops? At people accused of killing old ladies? People accused of killing children? Where does it stop? It’s appalling!”

Heidi Beghosian, executive director of the National Lawyers Guild, an organization that has long been in the forefront of the campaign to end the death penalty in the US, and which was not advised of the plan to circulate the memo on behalf of the US Steering Committee to the World Coalition, despite the NLG'S being a member of the WCADP, roundly condemned the secret effort to silence Abu-Jamal at the March event.

“Mumia Abu-Jamal’s case is emblematic of the inherent flaws in the capital punishment system,” she said. “That he is castigated by leaders in the abolitionist movement shows precisely what is wrong with the system—it is a system enslaved to the whims and personal biases of police, prosecutor, judge, and jury. While cultivating certain voices of law enforcement may assist in efforts to achieve abolition, it should not be at the expense of exposing a case that embodies some of the most reprehensible actions on the part of the police, the district attorney and the judiciary. The powerful FOP, and their heavy-handed efforts to vilify Abu-Jamal and his supporters, should not be the barometer by which abolitionist leaders gauge their strategic priorities. Members of the abolitionist movement should be working together and not further censoring and ostracizing a death row inmate.”

What makes the American abolitionists’ petulant and manipulative behavior as expressed in the secret memo and their cynical threat to withdraw from the Congress particularly outrageous is that Abu-Jamal’s arrest, trial and appeals process has been, as Beghosian notes, a textbook case of police and prosecutor corruption, malfeasance and abuse. From the beginning, even before his arrest, Abu-Jamal’s case was poisoned by a police lust for vengeance. Although he had been shot through the lung and liver by a bullet fired from Officer Faulkner’s service revolver, and was in danger of dying of internal bleeding that was filling his lungs with blood, Abu-Jamal was left lying in a police wagon for almost half an hour before he was finally delivered to a hospital emergency room, where hospital staff and at least one police officer on the scene observed him being kicked and punched by the officers delivering him.

During the jury selection process at the beginning of his trial, the presiding judge, Albert Sabo, who as a county sheriff’s deputy was an FOP member before he was made a judge, was overheard by a second judge and his court stenographer saying to his own court clerk, as he exited the courtroom through the judge’s robing room, “Yeah and I’m gonna help them fry that nigger!”

During the tortuous appeals process, both the state and federal courts have shamelessly bent their rules and violated precedents to deny Abu-Jamal the benefits of precedents that have been routinely accorded other appellants. Third Circuit Appeals Court Judge Thomas Ambro filed a stinging dissent to a decision by his two colleagues, who effectively created new law from the bench in rejecting Abu-Jamal’s well-founded Batson claim of racial bias by the prosecution during jury selection at his trail. Scarcely concealing his outrage, Judge Ambro wrote: "Our Court has previously reached the merits of Batson claims on habeas review in cases where the petitioner did not make a timely objection during jury selection--signaling that our Circuit does not have a federal contemporaneous objection rule--and I see no reason why we should not afford Abu-Jamal the courtesy of our precedents." He added, "Why we pick this case to depart from that reasoning I do not know."

Abu-Jamal himself, interviewed by phone last Friday from his cell at the super-max death row facility SCI-Greene in western Pennsylvania, blasted the attempt to silence him at the Congress, and to ostracize him from the American abolitionist movement. “They are really making deals with the devil,” he said, of claims that the US abolitionist movement was trying to gain the support of the FOP. “My instinct, being from Philadelphia, is that money was passed, though I have no evidence to prove it.” He added, “This secret action is a threat to the entire abolitionist movement. They are saying that because the opposition (to abolition) is so strong, we should not fight. If you have that attitude, why have an abolitionist movement at all?”

Abu-Jamal, whose death penalty was lifted by a federal judge in 2001, only to have the US Supreme Court remand that decision back to the Third Circuit, where it could be reimposed, and who continues, in no small part thanks to pressure from the Pennsylvania FOP, to be held in solitary confinement on death row, where he maintains his innocence, calls the signers of the memo “co-conspirators,” and says they are “naive” to believe they can win over the FOP by abandoning him to his fate.

“If the slavery abolitionists had taken this approach back in 1860,” he says, “and said okay let’s free the slaves, except those uppity ones with prices on their heads like Harriet Tubman and Frederick Douglass, we’d still have slavery today.” Abu-Jamal said it appeared that the abolitionist movement appeared to have lost its way, and said that it needed to be broadened to more closely reflect the population of the nation’s death rows. where nearly everyone is poor, and where 53% of the doomed inmates are non-white.

Dave Lindorff is a Philadelphia-based journalist and columnist. His latest book is “The Case for Impeachment” (St. Martin’s Press, 2006 and now available in paperback). He can be reached at dlindorff@mindspring.com

First they convict an innocent man - because he is Black and because he is a Radical Black. Next, they keep him from getting a fair retrial or Probation/Clemency. Now, they try to make it illegal for him to speak!

Tomorrow, PA Gov. Tom Corbett will hold a press conference at noon at 13th and Locust to announce the passing of "Revictimization Act."
This recent legislation, which was fast tracked through the PA House and Senate last week will make it illegal for prisoners like Mumia Abu Jamal to speak publicly. This is a clear violation of prisoner rights and a violation of the First Amendment.
Recent commentaries from Mumia:
1) A Nation in Fear (2:24) by Mumia Abu-Jamal 10-20-2014
2) First Amendment Threatened
Will Mumia's Voice be Silenced
FSRN Interview (5:19) With Noelle Hanrahan 10-14-2014
3) Mumia Abu-Jamal's comment (:58)
re PA State Sentate Attack on his 1st Amendment Rights.

So flagrant is their contemptuous disregard for rule of law and justice.