Following mixed court ruling, Mumia Abu-Jamal’s lead attorney maintains hope for overturning conviction

Amy Goodman and Juan Gonzalez interview Mumia's lead attorney Robert Bryan The following radio interview was transcribed from the March 28 Democracy Now show.

A federal appeals court Thursday (March 28) refused to overturn the conviction of imprisoned journalist and former Black Panther Mumia Abu-Jamal and rejected his call for a new trial. However, the long-awaited ruling said Abu-Jamal, who has been on death row for twenty-six years, deserves a new sentencing hearing because of flawed jury instructions. If he is re-sentenced, he will face either death or life in prison without parole. We speak to Abu-Jamal’s lead attorney, Robert Bryan.

JUAN GONZALEZ: A federal appeals court Thursday refused to overturn the conviction of imprisoned journalist and former Black Panther, Mumia Abu-Jamal, and rejected his call for a new trial. However, the long-awaited ruling said that Abu-Jamal, who has been on death row for twenty-six years, deserves a new sentencing hearing because of flawed jury instructions. That’s if he is not sentenced purely just to life in prison without parole. If he is re-sentenced, he will face either death or life in prison without parole.

Abu-Jamal was convicted for killing a white police officer in 1982 following a controversial trial before a predominantly white jury. Protests are scheduled for today in New York and San Francisco.

AMY GOODMAN: We’re joined now in San Francisco by Robert Bryan, the lead counsel for Mumia Abu-Jamal. Welcome.

Pam Africa has said this certainly is no victory. Can you explain exactly what the court ruled?

ROBERT BRYAN: Well, good morning, Amy. And the decision in this case yesterday is really a mixed bag. On the one hand, the death penalty—the court threw out the death penalty in this case, even though Mumia remains on death row today, and if the state appeals or seeks further relief, nothing will change, at least for the present. The court did order a new jury trial on the issue of whether he should be on death row. In effect, what they did, as I said, was throw out the death penalty. So that’s the good part of the decision. And having done this type of work defending people facing the death penalty for over three decades, I can tell you any time the death penalty gets thrown out is a real victory.

On the negative side, as Juan just pointed out, the jury—the court ruled against granting a new jury trial on the issue of guilt and innocence. And we were rather astounded that the court made that ruling. The silver lining to that ruling, to that dark cloud, is that it was a split court. We were before three judges. Two judges ruled against us; a third judge, Judge Ambro, rendered a forty-one-page dissent in which he strongly criticized the majority and said that racism was a work in this case, that racism—that the prosecution engaged in removing people of color, African Americans, from sitting on the jury of Mumia Abu-Jamal. So that really gives us a road map or, if you will, a very bright light in the darkness of where we go from here, because my goal is to achieve a new trial for Mumia. I want him acquitted by a jury. My intent, as I’ve done in so many other cases, is to see him go home to his family, and that’s the bottom line.

JUAN GONZALEZ: So now, with this, since this was a decision, a split decision, of a panel of the Third Circuit, is it possible then to appeal to the entire Third Circuit on this decision?

ROBERT BRYAN: Well, Juan, you’ve actually—you’ve certainly been doing your homework. That’s exactly what we will be doing within the next few weeks. And that is, this was a decision by three judges, two-to-one; now we will be going before the entire court, all the judges, asking them to review this issue.

And, of course, the biggie, the big—the gorilla in the room, the elephant in the room, is the racism in jury selection. The District Attorney’s office in Pennsylvania—in Philadelphia, back during— particularly during that period in the early ’80s, late ’70s and mid- to late ’80s, engaged in a pattern—this is judicially recognized—of removing people from sitting on juries because of race, because of the color of their skin. And when we argued this case before the three-judge panel last May 17, I completed the argument by asking the rhetorical
question: are we to believe that the District Attorney did not engage in racism in jury selection in this case, when it’s judicially recognized it did in case after case, both before and after the trial of Mumia Abu-Jamal?

And, of course, the trial of Mumia Abu-Jamal was the biggest trial in the history of the city of Pennsylvania. And Mumia Abu-Jamal, as people certainly know, is a very activist writer, journalist—he’s written five books on death row—and he’s the person who’s always bringing the authorities, the establishment, to task. He’s very critical of abuse of
government, people abusing power, of racism, that type of thing. And so, racism was certainly at work in this case.

AMY GOODMAN: Can you talk about how the original jury was chosen, Robert Bryan, lead counsel for Mumia Abu-Jamal?

ROBERT BRYAN: Well, it’s interesting. Judge Ambro, in his dissent, in
the first paragraph, cited a case that I presented to the court just
Monday: /Snyder v. Louisiana/, decided last week, March 19. And the U.S.
Supreme Court, in a seven-to-two decision, reaffirmed that the removal
of even one person from sitting on a jury because of his or her race is
constitutionally intolerable, unacceptable. And that is exactly what
happened in this case, but not just one. The prosecution in this case
engaged in a pattern of 67, 66 percent, nearly 70 percent of their
strikes, of removing people who could be on the jury, were people who
were African American, while the defense engaged in only—removed only
like 20 percent. So there weren’t that many people, African American,
available to sit on the jury in the first place, and yet the prosecution
struck nearly every one of them, not all, but nearly every one. And as I
said, the court said only one is enough, if one person is removed
because of his or her race. And certainly there was just a pattern in
this case and in other cases by that office of removing people because
of their race.

JUAN GONZALEZ: And, of course, Philadelphia back then, as now, had
about a 40, 45 percent African American population, right?

ROBERT BRYAN: Yes, that’s true, but a far less percentage wound up
being eligible to be selected, what we call on the jury venire, on the
panel. And there’s no question of the racism being at work in this case.
What’s interesting about this decision yesterday, and Judge Ambro raised
this question twice in his forty-one-page dissent, and that is, why is
this case being treated differently from other cases? Why is the
majority, the other two judges, treating this case differently? It’s
what we often think of as the Mumia exception. And that is, the law is
one thing for everyone else, but the courts seem to strive to carve out
an exception for Mumia Abu-Jamal, because obviously he’s outspoken, he’s very critical of the establishment. And I might say that the big issue lingering over all of this is that he is absolutely not guilty of murder.

AMY GOODMAN: Robert Bryan, again, to clarify, because I don’t think
any of these articles made clear, this three-judge panel of the U.S.
Court of Appeals for the Third Circuit ruled that Mumia Abu-Jamal must
be sentenced to life in prison for killing Daniel Faulkner or get a chance with a new Philadelphia jury that would decide only whether he should be sentenced to life or get the death penalty; is that right? And who makes this decision?

ROBERT BRYAN: That’s exactly right. And the three judges were at least unanimous on this. And as I said, this is the good side of the decision. And Mumia and I talked yesterday twice, and I broke it to him about this decision during our first conference. And we both recognized—he
recognized that this was a real victory that at least we won on the
death penalty, because it not only affects him, but certainly would help other people sitting on death rows. And what the court found was that the death penalty, as applied in this case, back at the 1982 trial by a very bigoted, very racist judge, was not applied properly, that it
violated very clear standards of the U.S. Constitution. And the court
said that he is—my client is entitled to a new trial on the question of
the death penalty in this case. So that was a win. I mean, that is not
what we wanted, but it’s a giant step.

AMY GOODMAN: Again, if you could clarify, but still, just to
understand, he either could be sentenced to life in prison or a
sentencing jury would decide whether he gets life or the death penalty. Who decides—

ROBERT BRYAN: That’s exactly right.

AMY GOODMAN: —whether there’s a sentencing jury or whether he’s
sentenced to life in prison?

ROBERT BRYAN: That’s decided by the jury, unless the District Attorney’s office hollered uncle, threw in the towel and said, “Well,
we’re not going to re-prosecute this case.” Then, automatically, the
sentence—the re-sentence would be without—a jury would not be necessary, would be less than death; it would be life. But assuming the prosecution continues with its zeal to try to snuff the life out of my client, we would go before a new jury of twelve men and women in Philadelphia, and that jury would decide whether it should be life or death. And I can assure you that even though the issue, if that’s what we had to do, even though the issue would be penalty, we are entitled to bring in evidence of innocence, that he’s not guilty of murder.

JUAN GONZALEZ: But Robert, again, just for our listeners and viewers to be clear on this, the decision as to whether to go to a jury again is made by the District Attorney of Philadelphia, Lynne Abraham? Would that be the person who would make the decision?

ROBERT BRYAN: Yes, Juan. If—

JUAN GONZALEZ: Because she’s—I think she’s already indicated, at least
in some of the reports, that she still believes that he—that she wants the death penalty for him, which would—the only recourse she would have would be to go to a jury. So it’s most likely that they will go to a jury again, to a jury trial over life in prison or the death penalty.

ROBERT BRYAN: That is absolutely correct, Juan, that if—unless they give up, we will have a new jury trial, at least on the issue of a penalty, a death penalty or life. But again, I need to emphasize that our goal is an entirely new trial. We’re pursuing that with great diligence. My—I have known Mumia since 1986, and the bottom line in all of this is an entirely new trial and acquittal by a new jury so he can go home to his family. He has written five books from death row. I
suspect if I can free him, which is what I plan to do, we will see many more books coming from the pen of Mumia Abu-Jamal.

AMY GOODMAN: Robert Bryan, I want to thank you for being with us, lead counsel for Mumia Abu-Jamal, speaking to us from San Francisco. There will be protests today in New York and San Francisco around this issue.