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Ruling of 3rd Circuit Court

Another ‘Mumia exception’

Published Apr 3, 2008 1:13 AM

A ruling by the three-judge panel of the Third Circuit Court of Appeals rejecting Mumia Abu-Jamal’s appeals has left supporters outraged and convinced that, for this internationally known political prisoner, there is no chance for a “fair trial” within the U.S. injustice system.

On March 27, the long-awaited decision by the Third Circuit Court judges followed a pattern that’s become all too obvious in Abu-Jamal’s hearings before Pennsylvania courts: ignore their own legal precedents and make exceptions to the rules when it comes to decisions regarding Mumia.

This practice of creating new court standards applied only to Abu-Jamal has been dubbed “the Mumia exception” and was criticized in an Amnesty International report of the Abu-Jamal case controversy released in 2001.

The three-judge panel consisting of Reagan appointees Chief Judge Anthony Scirica and Judge Robert Cowan, and Judge Thomas Ambro, a Clinton appointee, refused to grant Abu-Jamal a new hearing or new trial on three compelling issues: prosecutors use of racism to exclude African Americans from the jury during Abu-Jamal’s 1982 trial; the prosecutor making improper comments to that 1982 jury at the trial’s end; and pro-prosecution bias by Judge Albert Sabo, who ruled over both the 1982 trial and a 1995 appeals hearing.

However, the appeals court said that Abu-Jamal, who has been on death row in Pennsylvania for almost twenty-six years, deserves a new sentencing hearing because of flawed jury instructions, thereby upholding a December 2001 ruling to this effect by Federal District Judge William Yohn.

“The court did order a new jury trial on the issue of whether he should be on death row,” attorney Robert Bryan told Democracy Now. “In effect, what they did ... was throw out the death penalty. So that’s the good part of the decision. On the negative side ... the court ruled against granting a new trial on the issue of guilt or innocence.” Bryan stated that he will now ask the entire Third Circuit Court to review the issues. Philadelphia District Attorney Lynne Abraham has indicated that she will continue to seek the death penalty for Abu-Jamal.

At a March 31 press conference outside the Federal Court building in Philadelphia, Abu-Jamal’s supporters denounced the court’s decision and vowed to up the ante in their fight to free Mumia. Pam Africa of International Concerned Family and Friends of Mumia Abu-Jamal noted: “The power of the people has to be unleashed because what the court did is wrong!”

“This is not the first precedent the courts have broken that’s gone against Mumia, but this is one that’s going to resonate around the world,” said Africa, who announced plans for a national protest in Philadelphia on Saturday, April 19.

Africa said: “Last week’s court decision was not a victory. While we obviously prefer to have Mumia alive, instead of executed, life in prison without parole is an unacceptable sentence for an innocent man.”

Journalist Linn Washington Jr., who has followed Abu-Jamal’s case since 1981, noted that there has been instance after instance where the courts ignored compelling evidence that justifies a new trial for Mumia. “Precedent in American law means courts following previous court rulings when determining specific legal issues. Precedent is the bedrock of American law which requires courts to follow precedent unless significant evidence and/or compelling rationales necessitate changing precedent,” Washington stated. “This Third Circuit ruling changes precedent by applying legal procedures in a highly questionable manner to dismiss compelling evidence of injustice against Abu-Jamal.”

“What is different about this appellate court ruling,” Washington concluded, “is that for the first time there has been dissent from a judge involved,” referring to Judge Thomas Ambro’s strong exception to his colleagues regarding their decision on Abu-Jamal’s appeal concerning racism in the jury selection process.

Judges Cowan and Scirica rejected Abu-Jamal’s claim of racial bias claiming his protest of jury rejection wasn’t timely and he did not provide the court with evidence on the racial make-up of the jury pool from which jurors in his 1982 trial were selected. They also ignored evidence that a systematic practice of excluding African Americans from Philadelphia juries existed throughout the 1970s and 1980s and was acknowledged by a former Philadelphia prosecutor.

Basis of dissent

In his 41-page dissent, Judge Ambro challenged the blatant double standard in the court’s rejection of the “Batson” claim regarding racist jury selection. In Batson v. Kentucky in 1986 the Supreme Court established that excluding even one single person from a jury because of their race violated the Equal Protection Clause of the U.S. Constitution. As recently as March 19,  the Supreme Court affirmed that position in a 7 to 2 ruling in another death penalty case, Snyder v. Louisiana.

Ambro made several references to precedents set by the Third Circuit Court that were ignored in the panel’s ruling. “We have repeatedly said that a defendant can make out a prima facie case for jury selection discrimination by showing that the prosecution struck a single juror because of race ... in fact in United States v. Clemons, we explained, ‘striking a single black juror could constitute a prima facie case even when blacks ultimately sit in the panel and even when valid reasons exist for striking other blacks.’

“Yet the majority focuses on the absence of information about the racial composition and the total number of the venire (jury pool) ... claiming the exclusion rate is necessary to access whether an inference of discrimination can be discerned in Abu-Jamal’s case. Such a focus is contrary to the non-discrimination principle underpinning Batson, and it conflicts with our Court’s precedents, in which we have held that there is no ‘magic number or percentage necessary’ to trigger a Batson inquiry. ...

“I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.” Ambro further stated, “Why we pick this case to depart from that reasoning I do not know.” This is the first time any judge has publicly acknowledged “the Mumia exception.”

The panel’s majority claims that Abu-Jamal forfeited his Batson claim by failing to make a timely objection to improper procedures by prosecutors. It is blatantly absurd, however, to hold Abu-Jamal’s original lawyer responsible for not strictly following a procedure in 1982 that wasn’t established until 1986.

Equally absurd was the majority’s decision to deny an evidentiary hearing to Abu-Jamal because he did not provide them with evidence regarding the jury pool’s ethnic composition, evidence that would normally be brought forward in just such a hearing.

The panel’s findings on Abu-Jamal’s other appeals were equally outrageous. The judges unanimously rejected Abu-Jamal’s claim that Judge Albert Sabo, who presided over both his 1982 trial and 1995 Post Conviction Relief Act hearing, had been prejudicial against him. Sabo’s biased antics during that 1995 proceeding were so outrageous that hundreds of newspapers around the country, including the Philadelphia Inquirer, criticized his pro-prosecution stance.

The panel also unanimously rejected the claim that Prosecutor Joseph McGill had diminished the jury’s sense of responsibility during the conviction phase of the trial by telling them their decision would not be final as there would be “appeal after appeal.”

The judges, while not denying McGill’s statement may have had an impact, stated that court precedent only used such evidence to overturn death sentences, not convictions, further denying Abu-Jamal relief he should have received if these federal appeals judges fairly followed their own established law.

More information on this case, including Pam Africa’s April 19th statement, the full text of the March 27 court ruling and protest actions for Mumia can be found at www.millions4mumia.org.