NAACP files brief supporting
Condemns racism in black death-row prisoner's original trial
by Hans Bennett
"The blacks from the low income areas are less likely to convict. There's a resentment for law enforcement and a resentment for authority....
you don't want those people on your jury, let's face it."
In an official 1986 Philadelphia District Attorney training video for new prosecutors(which publicly surfaced in 1997), veteran DA prosecutor Jack McMahon lectured in support of removing Blacks from jury panels. Explicitly recognizing this practice's illegality, McMahon explained that "the law" calls for a "'competent, fair, and impartial jury.' Well, that's ridiculous. You're not trying to get that."
If any of these new prosecutors refused to act as such, McMahon warned them that they'd lose their job: "If you're going to be some noble civil libertarian...You'll lose and you'll be out of office; you'll be doing corporate law...You're there to win...and the only way to do your best is to get jurors that are as unfair and more likely to convict than anybody else in that room."
Because of the illegality, McMahon recommended practical ways to conceal race-conscious jury selection. Describing one technique, he said, "when you do have a black juror, you question them at length. And on this little sheet of paper that you have, mark something down so that you can articulate later if something happens...And then you can say, 'Well the woman had a kid about the same age as the defendant and I thought she'd be sympathetic to him' or 'She's unemployed and I just don't like unemployed people...' So sometimes under that line you may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race."
NAACP Supports Batson Claim
While perhaps the most striking, the McMahon videotape is just one piece of evidence cited by the NAACP Legal Defense Fund's Amicus Curiae (friend of the court) brief filed this summer in support of death-row prisoner Mumia Abu-Jamal's appeal—currently at the federal Third Circuit Court of Appeals.
The NAACP brief focuses on Abu-Jamal's Batson claim—one of four issues currently before the 3rd Circuit Court. "Certified for appeal" by federal District Court Judge William Yohn in 2001, the Batson claim addresses the prosecution's use of peremptory challenges to exclude Blacks from Abu-Jamal's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a defendant deserves a new trial if it can be proved that jurors were excluded on the grounds of race. Most importantly, the Batson ruling significantly lowered the defendant's burden of proof.
The NAACP argues that "when viewing the facts of Mr. Abu-Jamal's case through the lens of Batson's true history and purpose, it becomes abundantly clear that he has set forth a prima facie case of discrimination." While DA prosecutor McGill's conduct "strongly suggested discriminatory intent," other evidence "strongly suggests" that this same discrimination "was common practice," throughout the DA's office.
At Abu-Jamal's trial, McGill used 11 of his 15 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia is 44% black, the jury was composed of ten whites and only two blacks.
The NAACP cites a survey of homicide cases tried by McGill from Sept., 1981 to Oct., 1983, showing that "the odds that Mr. McGill would peremptorily challenge an African-American potential juror were 8.47 times greater than for non-black jurors."
From 1977-1986 (when current Pennsylvania governor Ed Rendell was DA), Philadelphia DA prosecutors struck 58% of black jurors, but only 22% of white jurors.
"I'm Going To Help Them Fry The Nigger"
In 2001 another witness—Terri Mauer-Carter—challenged the 1982 trial's fairness, but the State Supreme Court ruled against the defense's right to include her affidavit in their current federal appeal. Mauer-Carter was working as a stenographer in the Philadelphia Court system on the eve of Mumia's 1982 trail when she states that she overheard presiding Judge Albert Sabo say in reference to Mumia's case that he was going to help the prosecution "fry the nigger."
Journalist Dave Lindorff recently interviewed Mauer-Carter's former boss, Richard Klein, who was with Mauer-Carter when she states she overheard Sabo. A Philadelphia Common Pleas Court judge at the time, who now sits on PA's Superior Court, Klein told Lindorff: "I won't say it did happen, and I won't say it didn't. That was a long time ago." Lindorff considers Klein's refusal to firmly reject Mauer-Carter's claim to be an affirmation of her statement.
The State Supreme Court ruling was an affirmation of lower-level Judge Patricia Dembe's argument that even if Maurer-Carter is correct about Sabo's stated intent to use his position as Judge to throw the trial and help the prosecution "fry the nigger," it doesn't matter. According to Dembe, since it "was a jury trial, as long as the presiding Judge's rulings were legally correct, claims as to what might have motivated or animated those rulings are not relevant."
Last Chance For a New Trial?
In 1982, Abu-Jamal was convicted of first-degree murder and sentenced to death for allegedly killing white police officer Daniel Faulkner. Citing an unjust conviction, millions around the world have since demanded a new trial for the black journalist and political activist.
Abu-Jamal's long list of international supporters now includes the Japanese Diet, the European Parliament, and members of both the British & German Parliaments. In the US, the National Black Caucus of State Legislators recently joined the NAACP in condemning the death penalty and calling for a new trial: "The continued unjust incarceration of Mumia Abu-Jamal represents a threat to the civil rights of all people."
In 2001 Judge Yohn affirmed Abu-Jamal's guilt but overturned the death sentence. Abu-Jamal is appealing the guilty verdict. Because the DA appealed Yohn's death penalty decision, he never left death row, and is still unable to have such "privileges" as full-contact visits with his family.
If the penalty ruling is overturned, a new execution date will be set. If its upheld, the DA can still impanel a new jury to rehear the penalty phase, which could then sentence him to death—regardless of the 3rd Circuit ruling.
In December, 2005, the 3rd Circuit began deliberations and shocked many by agreeing to consider two claims not "certified for appeal" by Yohn in 2001. Abu-Jamal's attorney Robert R. Bryan declared it to be "the most important decision affecting my client since his 1981 arrest, for it was the first time there was a ruling that could lead to a new trial and his freedom."
Oral Arguments Expected Any Month
After a year of each side filing reply briefs before the court, the 3rd Circuit Court is now expected to hold public oral arguments any month. Supporters of Abu-Jamal are organizing and applying pressure internationally in their call for a new trial.
Despite the renewed hope among Abu-Jamal's supporters that the 3rd Circuit will grant a new trial, Pam Africa (coordinator of Abu-Jamal's international support network) is somberly cautious. Africa emphasizes that "Mumia can still be executed. Further, since the Supreme Court is unlikely to hear Mumia's case, this is realistically his last chance to get a new trial. As the history of his case shows, we need public pressure to ensure the court's fairness."
"I believe Mumia is innocent and am personally calling for his immediate release," Africa said. "However, I'll work with anyone supporting a fair trial. By demanding a new trial, we can work with those who know the trial was rotten but are unsure of Mumia's innocence. Mumia's case represents all that is wrong with this system. We must take action now before its too late!"
This article is the latest article in Philadelphia-based photojournalist Hans Bennett's new series on Abu-Jamal being published in the months leading up to the oral arguments before the Third Circuit Court of Appeals. The "Voice of the Voiceless" series presents a review of the new German book on Abu-Jamal's case, an interview with Peter J. Wirs (who is filing criminal charges against French cities supporting Mumia), a legal update, and more. Check it out at: http://hbjournalist1.googlepages.com/ms