Legal Update
Date: July 8, 2008
From: Robert R. Bryan, lead counsel
Subject: Petition for Rehearing and Rehearing En Banc, United States
Court of Appeals for the
Third Circuit, filed on behalf of Mumia Abu-Jamal,
death row, Pennsylvania
United States Court of Appeals for the Third Circuit, Philadelphia
On June 27, 2008, I submitted on behalf of my client, Mumia Abu-
Jamal, a Petition for Rehearing and Rehearing En Banc in the U.S.
Court of Appeals for the Third Circuit. Yesterday it was
deemed "filed" by the court following rulings on related motions.
The focus of the Petition is the issue of racism in jury selection.
If unsuccessful, we will proceed to the United States Supreme Court.
Below are two news articles concerning the Petition. Today's
Philadelphia Inquirer piece gives an overview of this newest
development, while that by Dave Lindorff is a brilliant analysis of
these case developments and its politics. A copy of the actual
Petition for Rehearing and Rehearing En Banc, which is before the
federal court, is attached.
Donations for Mumia's Legal Defense in the U.S. To make tax
deductible donations to the legal defense, please make checks payable
to the National Lawyers Guild Foundation (indicate "Mumia" on the
bottom left). They should be mailed to:
Committee To Save Mumia Abu-Jamal
P.O. Box 2012
New York, NY 10159-2012
Conclusion Even though the federal court granted a new jury trial on
the question of the death penalty, we want a complete reversal of the
conviction. I will not rest until my client is free.
Yours very truly,
Robert R. Bryan
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, California 94123-4117
Lead counsel for Mumia Abu-Jamal
[RobertRBryan@aol.com]
____________
___
Posted on Mon, Jul. 7, 2008
Abu-Jamal seeks new trial in Phila. officer's slaying
By Emilie Lounsberry
INQUIRER STAFF WRITER
Pennsylvania death-row inmate Mumia Abu-Jamal has asked a federal
appeals court to reconsider the decision that denied him a new trial
in the 1981 slaying of Philadelphia Police Officer Daniel Faulkner.
In late March, a three-judge panel of the U.S. Court of Appeals for
the Third Circuit left intact Abu-Jamal's conviction but said a new
jury should decide whether he deserved death or should be sentenced
to life behind bars.
In court papers docketed today, Robert R. Bryan, the San Francisco
lawyer representing Abu-Jamal with Widener University law professor
Judith Ritter, asked the three-judge panel and the full Third Circuit
court to take another look.
They contended that the panel should have ordered a hearing on Abu-
Jamal's contention that prosecutors intentionally excluded blacks
from his jury in violation of a later 1986 U.S. Supreme Court
decision.
They noted that one of the panel members, Judge Thomas Ambro, wanted
a hearing held on that issue, and said the majority "has backed away
from this Circuit's historical commitment to equal justice for all."
The three-judge panel affirmed the December 2001 ruling by U.S.
District Judge William H. Yohn Jr., who had thrown out the death
sentence after concluding that the jury might have been confused by
the trial judge's instructions and wording on the verdict form filled
out when the jury decided on death.
Yohn found that the jury might have mistakenly believed it had to
agree unanimously on any mitigating circumstances - factors that
might have persuaded jurors to decide on a life sentence, rather than
death.
Abu-Jamal, 54, has been on death row since his 1982 conviction in the
killing of Faulkner, who was shot to death near 13th and Locust
Streets early in the morning of Dec. 9, 1981.
While Abu-Jamal is appealing because he wants a new trial, the
Philadelphia District Attorney's Office could ask the U.S. Supreme
Court to reinstate the death sentence. Assistant District Attorney
Hugh Burns said last month that no decision had been made on whether
to ask the high court to consider the matter.
Abu-Jamal has written books and given taped speeches from death row,
and his case has been followed in many parts of the world.
The Pennsylvania Supreme Court upheld his conviction and death
sentence in 1989, and also rejected three other appeals - including
one earlier this year.
_______________
OpEdNews
Original Content at OpEdNews.Com Progressive, Tough Liberal News and Opinion (http://www.opednews.com/articles/Mumia-Abu-Jamal-)
s-Long-Sho-by-Dave-Lindorff-080707-97.html
July 7, 2008
Mumia Abu-Jamal's Long-Shot Appeal for Reversal of Last Year's
Disastrous Third Circuit Ruling
By Dave Lindorff
Mumia Abu-Jamal and his attorney Robert R. Bryan yesterday filed
a formal petition seeking a full en banc reconsideration of last
spring's decision by a three-member panel of the Third Circuit
Federal Court of Appeals rejecting his claim of a constitutional
violation in the selection of jurors at his 1982 murder trial in the
shooting death of Philadelphia police officer Daniel Faulkner.
The three-judge panel, in a 2-1 ruling, rejected Abu-Jamal's
claim of a so-called Batson violation—namely that the city prosecutor
trying his case had denied him a fair trial by improperly barring
qualified Kmtyw Americans from sitting on his jury. The two judges
in the majority--both appointed to their posts by President Ronald
Reagan--stated that Abu-Jamal had failed to raise the issue at the
time of his trial, and that he had failed to make a prima facie case
of racial discrimination.
In their majority opinion rejecting Abu-Jamal's Batson claim,
Judge Anthony Scirica and Judge Robert Cowan had argued that even
though it was demonstrably true that Assistant DA Joseph McGill had
used 10 of his 15 peremptory challenges to reject two-thirds of the
potential black jurors who had agreed that they could vote for a
death penalty in the case, it could not be seen as a prima facie case
of impermissible racial discrimination, because no one had
established the racial make-up of the total jury pool. In other
words, as one of the two judges actually stated during the
hearing, "perhaps the jury pool itself was two-thirds black." The
majority also ruled that because Abu-Jamal had not formally raised
the objection about the number of racial jury strikes at the time
they occurred, his claim was denied.
As attorney Bryan pointed out in his request for a re-examination
of the ruling by the full Third Circuit panel of 12 judges, however,
both these arguments fly in the face of both US Supreme Court and
Third Circuit precedents. Under Batson, a defendant, in order to
obtain a full hearing into the issue of race discrimination in jury
selection, need only demonstrate that one single juror was improperly
rejected by the prosecution on the basis of race. Furthermore, both
those courts have also established that all relevant issues must be
taken into consideration, not just the juror strike (dismissal) rate.
Bryan noted, for example, that the case was racially charged, given
that the defendant was black and the victim was white, and that it
was especially charged, given that the defendant had been a Black
Panther and had been associated with the MOVE organization, while the
victim had been a police officer. Both the Supreme Court and the
Third Circuit Court of Appeals have held that such issues can
contribute to making a prima facie case of discrimination, yet
neither was considered by the three-judge panel in its ruling in this
case. Bryan also noted that at the time of the trial, there was no
Batson standard to raise an objection to (the US Supreme Court's
Batson standard was established in 1986, but was made retroactive for
all cases). Indeed, in 1982, at the time of Abu-Jamal's trial, it was
technically legal for prosecutors to reject jurors on the basis of
race, so he and his trial attorney would have been making a pointless
objection at trial had they formally complained back then.
All these points, Bryan argues in his petition for a re-
consideration of his client's Batson claim, were also powerfully made
in a dissent by the third appellate judge, Thomas Ambro (a Clinton
appointee), who charged that his two senior colleagues on the bench
were making "a newly created contemporaneous objection rule for
habeas petitions," which he warned would conflict with all the
court's prior decisions.
Judge Ambro, Bryan points out, also was dismissive in his dissent
of his two colleagues' claim that they needed to know the composition
of the jury pool before they could say the prosecutor's dismissal of
two thirds of the qualified black jurors might constitute improper
discrimination in jury selection. "It is my belief," he wrote, "that
this strike rate without reference to total venire (jury pool) can
stand on its own for the purpose of raising an inference of
discrimination."
In any event, Bryan went on to demonstrate, using the trial
transcript record and some simple math, that in fact the racial
composition of the original jury pool can be established: it was 14
blacks and 31 whites, or in other words, 31 percent black. Since it
has been stipulated by the district attorney's office, and accepted
as fact by the state courts, that the prosecutor used his ability to
dismiss jurors peremptorily (without cause) to eliminate 10 black
jurors already considered acceptable by the court, that gives the
prosecution a strike rate of 66.67 percent, or more than double the
actual percentage of available black jurors in the pool. Admittedly
it would have been better had the defense been able to make that
damning point at the Third Circuit hearing last year, when the two
Republican judges on the bench were demanding it, properly or not.
That said, it is still a point that the full Third Circuit bench
should consider carefully, in examining lst year's bizarre ruling by
the three-judge panel of Scirica, Cowen and Ambro.
' The challenge faced by Abu-Jamal in this bid for a
reconsideration of his Batson claim ruling is that the three judges
who already ruled, including Judge Cowen, could be part of any en
banc reconsideration. Judge Marjorie Rendell, one of the 12 active
members of the Third Circuit, has recused herself from the hearing
because her husband, Gov. Ed Rendell, was district attorney and as
such was boss of the prosecutor, Joe McGill, when the case was tried.
Another judge, Clinton appointee Theodore McKee, also recused
himself, as did Bush appointee D. Michael Fisher. Ordinarily, en
banc deliberations are limited to active judges, but Judge Cowen,
though retired, might be able to participate, since he was one of the
judges who issued the ruling in question. If Judge Cowan did not
participate in an en banc session, that would mean four additional
judges would have to side with Judge Ambro, for a reversal and an
order for a hearing on Abu-Jamal's Batson claim. If Cowan were to
join the bench, however, that would mean a total of 10 judges, and
thus a majority of six--or five in addition to Ambro--would be needed
for a reversal.
Without Cowan, the odds would be daunting enough. Even if the
other two Clinton appointees to the Third Circuit Court and one
remaining Carter appointee were to side with Ambro, Abu-Jamal would
need one Bush appointee to come over to get five votes for a
reversal. With Cowan voting, five votes would just give a tie,
leaving last year's ruling standing. For a reversal, a second Bush
appointee would have to be swayed to Abu-Jamal's side.
That is quite a hurdle. Then again, stranger things have
happened: One of the key Third Circuit rulings establishing the
precedent that it should be relatively easy for a death row prisoner
to establish prima facie evidence of race-based jury selection (to
which Judge Ambro referred when he said his colleagues were ignoring
the precedents of their own circuit) and gain a full hearing of the
evidence, was written by a recent member of the Third Circuit Court
of Appeals, Samuel Alito. Alito, recall, left the Third Circuit when
he was appointed last year to the Supreme Court by Bush.
Technically, what Abu-Jamal is seeking at this point is an
order from the Third Circuit Court of Appeals for a full Batson
hearing, at which all evidence could be presented, and the
prosecution questioned, about the prevailing practice by the district
attorney's office in 1982 of excluding blacks from juries in
Philadelphia (academic research shows that under Rendell's direction,
prosecutors struck blacks from capital-case juries 58 percent of the
time, compared to only 22 percent for whites), the record of
prosecutor Joe McGill (who records show struck black jurors from the
capital cases he tried 74 percent of the time, vs. 25 percent of the
time for whites), and about what actually happened during jury
selection process at Abu-Jamal's own trial, when two-thirds of black
jurors were struck by the prosecutor.
If a judge were to establish after such a hearing that there
was a racial motive behind McGill's actions during jury selection, or
during the removal of one seated black juror early in the trial, or
that even one juror was removed for racial reasons, under Batson
rules, it would result automatically in Abu-Jamal's getting a new
trial before a new, fairly selected jury.
The Third Circuit drama over Abu-Jamal's Batson claim plays out
as evidence continues to mount that his trial was a sham and a
travestry. Among these are new photographs showing: 1) police
manipulation of the evidence at the crime scene, 2) a lack of any
bullet holes in the sidewalk surrounding the spot where officer
Faulkner was lying when he was allegedly shot by Abu-Jamal, and 3) no
indication of a taxi cab parked where cab driver Robert Chobert, a
key prosecution "eye-witness," claimed he had been located during the
shooting incident. Other credible witnesses are also surfacing with
evidence that there was never a shouted out "confession" in Jefferson
Hospital's emergency room, and that witness Chobert was actually not
a witness to the shooting, but was rather parked on another street,
facing away from the incident.
The District Attorney's office is expected to file a counter
petition opposing an en banc review of last year's Third Circuit
ruling.
Author's Website: This Can't Be Happening! | This Can't Be Happening! (http://www.thiscantbehappening.net)
Author's 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 This Can't Be Happening! | This Can't Be Happening! (http://www.thiscantbehappening.net)