By Linn Washington
Jr.
The following article first
appeared in the March 20-22 online edition of Counterpunch
(www.counterpunch.org). Linn Washington Jr. is an associate professor of
journalism at Temple University in Philadelphia and a weekly columnist for The
Philadelphia Tribune—America’s oldest Black owned newspaper. This
case is also covered in an article by CNN Supreme Court producer Bill Mears on
March 28 (www.cnn.com).
During a jailhouse interview in 1978 a Philadelphia radical awaiting trial for a
policeman’s death advanced a salient observation about a fundamental flaw
in America’s legal system.
The
“system just makes and breaks laws as it sees fit!” noted this
radical, who for years had battled Philadelphia authorities arbitrarily bending
and breaking laws to brutally assault his
organization.
This observation by a
member of Philadelphia’s MOVE organization would prove both prophetic and
profound for the journalist conducting that jailhouse interview—Mumia
Abu-Jamal.
Four years after that 1978
interview, Abu-Jamal stood trial for murdering a Philadelphia policeman. That
trial produced a conviction so mired in controversy that today millions around
the globe support Abu-Jamal as the victim of a miscarriage of
justice.
Abu-Jamal cites that
radical’s observation in his new book, “Jailhouse Lawyers: Prisoners
Defending Prisoners vs. the U.S.A.” (City Lights Books, 2009). This is the
sixth book written by Abu-Jamal during his twenty-five-plus years on
Pennsylvania’s death row.
This book examines inmates who have learned law through self-study to challenge
criminal convictions and conditions inside prisons. In Chapter 2 of his new
book, Abu-Jamal provides his assessment of U.S. law, terming it an
“instrument of the powerful, mortality be damned. For the weak, the
powerless, the oppressed, the law is more often a hindrance than a
help.”
That radical’s
observation about arbitrary operation in the justice system accurately describes
the Abu-Jamal case where courts—state and federal—have repeatedly
altered and/or abrogated established law to block Abu-Jamal receiving relief
granted to other inmates raising the same legal
challenges.
The latest example of this
alter-law-to-undermine-Abu-Jamal dynamic drives his appeal currently pending
before the US Supreme Court. This appeal attacks the 2008 ruling by a federal
3rd Circuit Appeals Court panel that created a new legal standard for persons
challenging racist jury selection practices by
prosecutors.
That newly created legal
standard advanced by two 3rd Circuit judges to reject voluminous evidence
documenting racist jury selection practices by the prosecutor during
Abu-Jamal’s 1982 trial erects courtroom procedures far in excess of
procedures required by existing U.S. Supreme Court and 3rd Circuit
rulings.
The third member of that
three-judge 3rd Circuit panel issued a 41-page dissent that repeatedly upbraided
his panel colleagues for radically changing the established jury discrimination
standards applied by their Circuit and the U.S. Supreme Court. “Why we
pick this case to depart from [3rd Circuit precedent] I do not know,”
Judge Thomas Ambro noted in his 2008
dissent.
Incredibly, that panel’s
ruling—later backed by the full 3rd Circuit—faults Abu-Jamal’s
1982 trial attorney for not strictly following procedures the U.S. Supreme Court
didn’t adopt until 1986—four years after Abu-Jamal’s
trial.
An Internet-based petition
campaign requesting the U.S. Supreme Court to overturn the 3rd Circuit ruling
and grant Abu-Jamal a court hearing on the jury selection discrimination issue
amassed over 1,200 signatures in just a few
days.
This petition campaign, initiated
by a coalition of anti-death penalty groups in Germany, has gained signatures
from persons in Germany, Austria, Brazil and Turkey despite it not being
formally launched internationally. So far, petition signers include noted German
actors, actresses, activists, academics, civic leaders and one member of the
German parliament.
The prosecutor during
Abu-Jamal’s 1982 trial used 10 of 15 preemptory challenges to purge
potential Black jurors—more than twice the exclusion rate expected with
race-neutral
procedures.
Abu-Jamal’s richly
detailed appeal to the U.S. Supreme Court, prepared by lead defense lawyer
Robert R. Bryan, includes an examination of the “culture of
discrimination” operative among Philadelphia
prosecutors.
Bryan’s appeal
highlights 11 separate rulings where federal and Pennsylvania state courts
specifically faulted Philadelphia prosecutors for engaging in intentional
discrimination during jury selection. Six of those 11 rulings cited in
Bryan’s appeal came from the 3rd
Circuit.
Further, Bryan’s appeal,
referencing dozens of court rulings nationwide, cites a U.S. Supreme Court
ruling where one justice utilized a scholarly statistical study documenting
Philadelphia prosecutors purging potential Black jurors at twice the rate of
whites during death penalty trials between 1981 and
1997.
Interestingly, just days before
that 2008 3rd Circuit ruling, the U.S. Supreme Court granted a Louisiana death
row inmate a new hearing after finding race tainted jury selection practices
during his trial. This Supreme Court ruling applied standards less stringent
than those the 3rd Circuit created in the Abu-Jamal
ruling.
The author of that Supreme Court
ruling, Justice Samuel Alito, formerly served on the 3rd Circuit, where he
participated in rulings granting relief to inmates victimized by prosecutorial
jury selection improprieties less onerous than those in the Abu-Jamal
case.
The NAACP Legal Defense and
Educational Fund’s legal brief filed on behalf of Abu-Jamal’s U.S.
Supreme Court appeal criticizes the 3rd Circuit panel’s “departure
from controlling precedent”—faulting that ruling for improperly
increasing the evidentiary burden on defendants raising jury discrimination
claims.
The NAACP Defense Fund’s
brief warns that the 3rd Circuit’s ruling “threatens to dramatically
reduce the pool of cases eligible for judicial review ...” because it
“directly contradicts” repeated U.S. Supreme Court
rulings.
Philadelphia prosecutors are
asking the U.S. Supreme Court to reinstate Abu-Jamal’s death sentence and
reject his request for relief regarding jury selection discrimination. That 2008
3rd Circuit ruling upheld a federal District Court judge’s elimination of
Abu-Jamal’s death sentence after finding flaws in forms used by the jury
that condemned him to death.
>The push by
Philadelphia prosecutors to execute Abu-Jamal comes at a time when states around
the nation are backing away from the death penalty. This week, New Mexico became
the 15th state to repeal the death penalty. New Mexico Governor Bill Richardson,
when signing the repeal legislation, noted the exonerations of four death row
inmates in that state.
Six of the 130
death row exonerations nationwide come from
Pennsylvania.
The judge presiding at
Abu-Jamal’s 1982 trial, Albert Sabo, had the dubious judicial distinction
of handling the largest number of death penalty convictions in the U.S. Courts
have overturned two-thirds of those capital convictions in Sabo’s court,
citing faults by prosecutors, defense attorneys and Sabo
himself.
Philadelphia’s District
Attorney’s office is currently resisting actions by Philadelphia’s
mayor to sharply reduce spending by all city government departments due to a
billion dollar budget deficit. Philadelphia prosecutors have spent hundreds of
thousands of dollars battling Abu-Jamal’s appeals in state and federal
court.
Critics of Philadelphia’s
District Attorney’s office constantly cite fiscally wasteful procedures
like relentlessly resisting legal relief to inmates granted by courts upon
findings of faults by police and
prosecutors.
Philadelphia District
Attorney “Lynne Abraham is costing the city a ‘ton’ fighting
police corruption cases,” said Robert “Sugar Bear” Lark, an
inmate still sitting on Pennsylvania’s death row, because Philadelphia
prosecutors are battling a 2007 federal court ruling overturning his
conviction.