August 7, 2002

Legal update and orientation by
International Concerned Family
& Friends of Mumia Abu-Jamal

1. We are still waiting for a response in the US Court of Appeals to
both sides' appeals of federal Judge William Yohn's December 2001
ruling, in which he set aside Mumia's death sentence--though he gave
the state of Pennsylvania the option of conducting a new hearing at
which Mumia could be sentenced to death again. If that hearing is not
held, and Yohn's decision is upheld, then Mumia would serve
life in prison without parole.

Mumia's status is unchanged given these appeals. Contrary to popular
opinion, he remains on Death Row, locked up 23 hours a day as before,
with plexiglass barriers between him and all visitors, and with all
the other deadly restrictions inflicted on Death Row inmates. The
Court of Appeals can respond in numerous ways to the appeals by both
sides, ranging from overturning Yohn and reimposing the original
death sentence to upholding Yohn and leaving the question of a new
sentencing hearing up to the state, to setting aside the guilty
verdict in Mumia's original trial.

2. Clearly, Mumia is not even guaranteed a reprieve from execution.
The danger of a possible new death warrant was underscored by the
June 17th US Supreme Court decision which threw out a ruling made by
the 3rd US Circuit Court of Appeals (the very same court which
overruled Mumia's death sentence) last November. That lower court
decision had overturned the death sentence of another
Pennsylvania Death Row inmate, George Banks. The lower court had
overturned Banks' death sentence based on improper instruction to the
jurors in the sentencing phase of the trial that violated Supreme
Court standards for jury instruction set in 1988, precisely the basis
for Yohn's overturning of the death penalty in Mumia's case. In an
unsigned decision, the US Supreme Court questions
whether those 1988 standards could be applied retroactively to a 1982
decision.

The earlier appeals ruling in the Banks case had prompted courts to
overturn the death sentences of several of Pennsylvania's 245 Death
Row inmates, including Abu-Jamal.

With this new Supreme Court decision, Mumia's situation is that much
more dangerous.

Adding to this danger is the fact that two gubernatorial
candidates in Pennsylvania are actively campaigning for the death
penalty and for the execution of Mumia.

3. Mumia's current attorneys filed for a reopening of the Post
Conviction Relief Appeal (PCRA) hearings-held initially in 1995-'96-
claiming that Mumia's former attorneys failed to represent him
properly by never arguing for his innocence and by never presenting
key evidence pointing to Mumia's innocence. They filed
this petition both in Pennsylvania Supreme Court and in the Third
Circuit of the US Court of Appeals. On June 11, the Third Circuit
stated that it would take no action in the case pending the
Pennsylvania Supreme Court's final decision. This
appears to be primarily a procedural ruling, without major
significance, but points to a potentially long process before us.

Meanwhile, in Pennsylvania State Supreme Court a very important
challenge is being waged by Mumia's attorneys to expose the true
story of systematic bias in excluding African-Americans from Mumia's
jury. The attorneys have asked to depose (take sworn testimony from)
Supreme Court Justice Ronald Castille, about whom there have been
recurrent charges of conflict of interest since at least
1987. And now there are additional charges, flowing from a ruling by
the US Supreme Court (in the 1986 "Batson" case) which states that
the exclusion of jurors based on race is grounds for the reversal of
a conviction.

The Pennsylvania Supreme Court based its rejection of Mumia's motion
to depose Castille on three of its prior decisions. But a closer
examination of all three actually support the legitimacy of deposing
Castille. In one (Commonwealth v Basemore, 2000)-the only decision in
which Castille did not participate-the court actually granted
Basemore a new hearing.

Here's the story: Before he was elected to the Supreme Court,
Castille was a District Attorney in the County of Philadelphia.
During an initial appeal of Mumia's original conviction, Castille, as
District Attorney, signed the papers filed for the prosecution,
arguing against Mumia's appeal. Clearly this raises a serious question
about his ability to rule impartially regarding Mumia's case whenever
it comes up before the State Supreme Court.

In 1996, when Mumia's appeal of Albert Sabo's denial of post-
conviction relief reached the Court, Mumia's attorneys asked Castille
to recuse himself-that is, recognize that he had a conflict of
interest and choose not to participate in the deliberations or in the
decision. Castille--the only one who has the power to take such action-
rejected this request. Now, new and more damning evidence of
Castille's conflict of interest and his active participation in the
dissemination of a videotape aimed at teaching Assistant DA's in
Philadelphia how to exclude African-Americans from juries, has
emerged.

One of the key issues in all of Mumia's legal proceedings has been
the racist character of the jury selection at his original trial. In
a city that is over- whelmingly African American, only two African
Americans were selected to participate in his jury. Judge Sabo
consistently allowed the prosecution to challenge African Americans
and remove them during the jury-selection process.
In his ruling last December on Mumia's federal Habeas Corpus
petition, Federal District Court Judge William Yohn identified the
question of racist jury selection and the instructions given to the
jury as the two issues that he (that is, Judge Yohn) considered
worthy of review by the Federal Court of Appeals.
(Mumia's attorneys are asking the higher court to consider a wide
range of questions.)

Since 1998, one of the items of evidence which Mumia and his
attorneys have been trying to enter into the record is a videotape
prepared by one Jack MacMahon. It is a training tape, used to educate
Assistant District Attorneys in Philadelphia on how to exclude
African American jurors without making it obvious that the
basis of exclusion was racial in nature. This tape was produced in
1986, several years after Mumia's trial, but also the same year that
the U.S. Supreme Court issued its "Batson" ruling (see above). The
court declared that a demonstrable pattern of racial discrimination
in jury selection was grounds for overturning a conviction.

This is precisely what the MacMahon tape does demonstrate-a pattern
of racial discrimination-adding to the weight of overwhelming
statistical evidence that African American jurors were consciously
excluded during Mumia's 1982 trial. The videotape is clear evidence
of an attempt to maintain the traditional racist practices of the
Philadelphia DA's office, while camouflaging those practices in
order to circumvent the protections newly offered to defendants by
the Batson decision. Specifically, with regard to Mumia, the MacMahon
tape takes the evidence that there was a racist exclusion of jurors
out of the realm of mere statistics and demonstrates that a conscious
plan lay behind those statistics.

The Pennsylvania Supreme Court denied Mumia's request to allow this
videotape into the record. Justice Castille participated in that
denial. The court justified its rejection of Mumia's motion on the
grounds that the tape could not be shown to reflect general practices
of the Philadelphia DA's office, since it was only a presentation by
a single individual, MacMahon. It now comes to light,
however, that the tape has the official insignia of the city of
Philadelphia on it-along with the name of Ronald Castille as District
Attorney.

And so we have evidence of still another conflict of interest by
Justice Castille. Not only did he participate in a court decision on
a matter in which he had been personally involved, he actually knew
for certain that the basis cited by the court for denying Mumia's
motion was completely false. The videotape was an official document
of the District Attorneys office, not some random production by a
lone individual. And Castille's failure to reveal his personal
participation in the production and dissemination of this
videotape, when the issue came up before the Supreme Court
where he was sitting as a judge,constitutes a serious violation
of professional ethics.

The Supreme Court as a whole rejected Mumia's motion to take a
deposition on these questions from Justice Castille. But Mumia's
attorneys are attempting to reargue the point before the court,
partly based on the fact that Judge Castille should not have
participated in that discussion and decision.

This issue of systematic racial bias in jury selection, and the court
exchanges surrounding it, are potentially explosive if they become
widely known. The facts here reveal in a particularly stark way the
racist, frame-up nature of the original prosecution and death-
sentence imposed on Mumia. The issue of racial bias was also recently
highlighted when Terri Maurer-Carter, a court stenographer during the
time of Mumia's original trial, stated in an affidavit
that she overhead trial Judge Albert Sabo say, referring to
Mumia: "I'm going to help them fry the n----r."

Implications For Activists

1. We should wage a campaign to have Castille recuse himself, and to
force the Pennsylvania Supreme Court to grant Mumia's motion to
depose Castille on the use of the MacMahon tape, thus entering the
MacMahon video into the record. This could make a tremendous
difference, as racial bias in jury selection constitutes
a basis for overturning Mumia's conviction, and could then be
reviewed by the federal courts. Additionally, given the current
climate in the courts of vulnerability on this issue, we could put a
lot of pressure on various officials and the courts themselves to
address the racial bias in the selection of Mumia's
jury.

2. We must point to the contradiction between Federal Judge Yohn's
ruling that Mumia may appeal on the issue of racial bias in the
selection of his jury, and the Castille/Pennsylvania Supreme Court
suppressing the investigation of this issue.

3. We must popularize the fact that in the case of Basemore, the use
of the MacMahon videotape was considered a "highly flagrant violation
of the US Constitution." Basemore was granted the right to appeal.
There was (unlike in Mumia's case) considerable evidence of his
guilt. He nonetheless won the right to an evidentiary hearing on a
claim he had not raised at all before-something
Mumia has been fighting for in the federal courts.

4. We need to circulate and get signatures on the petition to current
Pennsylvania governor Schweiker. (For information contact the NY Free
Mumia Coalition--212-330-8029).

5. We must force the candidates in the present election for
Pennsylvania Governor--and particularly the likely winner, Democratic
Party leader, Ed Rendell, who was the DA for Philadelphia during the
early '80s when Mumia was prosecuted, found guilty, and sentenced to
death-to take responsibility for "their" Supreme Court's "irregularities."
Rendell is campaigning on a pro-death penalty platform and specifically
in support of Mumia's execution, with a totally fabricated version
of what happened on the night of December 9th 1981.
Rendell and Castille share a long history of involvement in the
effort to frame-up and murder Mumia Abu-Jamal.

International Action Center
39 West 14th Street, Room 206
New York, NY 10011
email: iacenter@iacenter.org
fax: 212 633-2889
web: www.iacenter.org
phone: 212 633-6646