July 8, 2008

From:      Robert R. Bryan, lead counsel
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

Lead counsel for Mumia Abu-Jamal

 

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
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 African
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: 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
http://www.thiscantbehappening.net