Sunday, September 28, 2008
The Framing of Mumia Abu-Jamal: Guest Writer Hans Bennett
Journalist Hans Bennett has given me permission to post his OpEdNews Diary post here. You can see the original at: http://www.opednews.com/maxwrite/diarypage.php?did=9719
VIDEO interview with J. Patrick O'Connor at Philly City Hall, who released his book, The Framing of Mumia Abu-Jamal, earlier this year.
On May 1, 2008, the day of the book's release, AJN interviewed O'Connor at Philadelphia City Hall. The next day, The Framing of Mumia Abu-Jamal was featured in The NY Times: "Book Asserts Black Reporter Didn't Kill White Officer in '81."
Read our exclusive interview from April, focusing on the frame-up, Kenneth Freeman, the March 27 court ruling, and Frank Rizzo's legacy.
O’Connor argues that the actual shooter was Kenneth Freeman and he criticizes the media, who “bought into the prosecution’s story line early on and has never been able to see this case for what it is: a framing of an innocent and peace loving man.” For more on “The Framing of Mumia Abu-Jamal” we are featuring an excerpt, a previous interview, O’Connor’s review of “Murdered By Mumia,” and his response to the March 27 ruling.
**New articles on O'Connor's book by Carolina Saldaña, Linn Washington Jr., Hans Bennett, and radio shows Law and Disorder, Jazz and Justice, and KOWA**
J. Patrick O’Connor’s presentation at Baruch College, NYC
June 23, 2008
Good evening and thank you for coming.
Tonight I’m going to cover five areas of the Mumia Abu-Jamal case, beginning with my reasons for writing The Framing of Mumia Abu-Jamal. I’ll next discuss how the arrest set the framing in motion. Then look at how the physical evidence and early eyewitness statements pointed to a shooter other than Mumia. In Part 4 I’ll show how the prosecutor used perjured, coerced, and bribed testimony to get the death verdict. I’ll finish with an analysis of Mumia’s various legal appeals and where he stands now. At the conclusion, I’ll be happy to try to answers your questions about the case.
1. Why I wrote this book:
When Mumia was sentenced to death on July 3, 1982, for the murder of Philadelphia Police Officer Daniel Faulkner, I was an associate editor for TV Guide at its headquarters in nearby Radnor, Pennsylvania.
I had often heard Mumia giving reports on the local public radio station during the 20 months he was employed there. I was impressed with his ability to make listeners feel what he was describing – and with the compassion in his distinctive voice. He was, in a very real sense, the “voice of the voiceless.” I had great admiration for him.
In 1996 I watched the BBC documentary: Mumia Abu-Jamal: A Case for Reasonable Doubt on HBO and I began to develop some doubts about the fairness of his trial and its verdict.
When Amnesty International published an 84-page pamphlet in 2000 stating that it had determined that numerous aspects of Mumia’s case “clearly failed to meet minimum standards safeguarding the fairness of legal proceedings,” I began to research the case. By this time I was editor of the Internet site Crime Magazine (www.crimemagazine.com), and my intention was to write an article about the case for it.
Running throughout much of Mumia’s support is a subtext that his trial was unfair but that he probably killed Officer Faulkner in self-defense. As I read and re-read the available material on the case – transcripts from both his trial and Post-Conviction Relief Act hearings, newspaper accounts, and several books written about the case – I could see that his trial was a monumental miscarriage of justice, representing an extreme case of prosecutorial abuse and judicial bias.
What I could not tell until I was several years into my research was whether Mumia had actually killed Officer Faulkner. The officer had been in the process of violently arresting Mumia’s younger brother – Billy Cook – shortly before 4 a.m. in a “red-light” section of Center City Philadelphia when Mumia – moonlighting as a taxi driver – happened to be nearby and ran from a parking lot to assist his brother. When I was able to determine that the passenger in Billy Cook’s car had killed Officer Faulkner, I then set out to show what no other book about this case had ever attempted to reveal: Why and how Mumia was framed for Officer Faulkner’s killing.
What makes getting to the truth of this case so difficult for so many people who continue to believe that Mumia is guilty of murdering Officer Faulkner is that the prosecution built its case on perjured, bribed, and coerced testimony with a calculated disregard for what the actual evidence established.
2. How the arrest set the framing of Mumia Abu-Jamal in motion:
The framing of Mumia Abu-Jamal was set in place at the very outset when Inspector Alfonzo Giordano arrived within minutes to take control of the crime scene. Giordano formerly reported directly to George Fencl, the chief inspector of the Philadelphia Police Department’s Civil Defense Bureau – a special intelligence unit that had monitored Mumia since he joined the Philly chapter of the Black Panther Party at age 15. The civil defense bureau was also at the heart of the police department’s harassment of MOVE, the small, radical back-to-nature group that became the focal point of police brutality in the 1970s and 1980s. The civil defense bureau’s interest in Mumia intensified as his radio career took wing. At the local public radio station, Mumia became an outspoken critic of the Mayor Rizzo-dominated police department and one of the city’s few reporters to dare empathize with MOVE in its ongoing and epic-like battle with Rizzo and the police department.
Normal police procedure would have been for a homicide detective to assume control of the crime scene, but there would be nothing normal about this arrest. Giordano seized control, confronting Mumia in the paddy wagon by striking him in the forehead with a hard object – most likely his walkie-talkie – and cursing him with repeated racial epithets. It would be Giordano who claimed that Mumia told him that he dropped his gun in the street after he shot Faulkner. It would be Giordano who arranged at the scene for 21-year-old prostitute Cynthia White and a 23-year-old, white, felon by the name of Robert Chobert to identify Mumia as the shooter. Giordano and White would be the D.A. Office’s only witnesses at the preliminary hearing to hold Mumia over for trial where Giordano repeated this so-called “confession.” Although the police released this confession to the news media the day of Faulkner’s shooting, no jury would ever hear Giordano testify to it. In one of the most sinister aspects of Mumia’s case, the police department waited until the first working day after Mumia’s sentencing to “relieve” Giordano of his duties on what would prove to be well founded “suspicions of corruption.”
Giordano was as corrupt a police officer as one can imagine, even by Philadelphia standards. For years he had been extorting kickbacks – personally averaging $3,000 per month – from Center City prostitutes, pimps, and bar owners, which explains his early arrival at the crime scene. Four years after Mumia’s trial, Giordano pled guilty to tax evasion in connection with those payouts. His penalty: four years probation. In the wide-ranging FBI probe that nailed Giordano, numerous other high-ranking police officers also were convicted, including Deputy Police Commissioner James Martin, and John DeBenedetto, head of the Central Division, to which Faulkner was assigned. Martin, the acknowledged head of the Philadelphia Police Department’s elaborate extortion apparatus, was in charge of all major investigations, including Faulkner’s death.
Giordano didn’t even bother to have White go through the pretense of identifying Mumia in the paddy wagon as he did several other eyewitnesses. Instead, he coerced or enticed her at the scene to concoct an eyewitness account of Faulkner’s shooting and packed her off in a patrol car to give her statement to police detectives at the Roundhouse. White would be the only witness the D.A. had to claim to see Mumia holding a gun over a prone Faulkner.
3. How the physical evidence and early eyewitness statements pointed to a shooter other than Mumia:
From the outset, the investigation into the shooting death of Officer Faulkner was conducted with one goal in mind: to hang the crime on Mumia Abu-Jamal. There was no search for the truth, no attempt at providing the slain officer with the justice he deserved. The physical evidence at the crime scene and the initial witness statements – other than White’s – pointed to a shooter other than Mumia.
· Four eyewitnesses told police that they saw one or more black men running from the scene after hearing gunshots.
· The prosecution’s entire account of how Mumia himself came to be shot – that Officer Faulkner, after Mumia cowardly shot him in the back, was able somehow to whirl around, and while falling down backwards get off the shot that struck Mumia – was a flagrant misrepresentation of the actual evidence. The prosecution’s scenario was completely discredited at trial when the surgeon who operated on Mumia testified that the bullet struck him in the chest and traveled straight downward, lodging in his liver. What the evidence actually showed was that Faulkner – while standing on the sidewalk – shot Mumia as he approached from the street.
· Even Robert Chobert, the felon on probation Giordano had I.D. Mumia in the paddy wagon, said in his first statement that the shooter was in his mid-30s, was heavy-set, weighing 200 to 225 pounds, was 6 feet tall, and wore a gray colored dress shirt that had a green picture on the back. (Mumia was 27. He was 6 feet tall, but weighed a lean 170 pounds then. That night he wore a waist-length, red-quilted ski jacket with a vertical blue stripe crossing the front. There was no picture on it, front or back.
· Cab driver Robert Harkins is the only eyewitness who saw what actually happened to Faulkner. He was driving by the police car and Cook’s VW when he saw an officer grab a man. The man then spun the officer around and the officer went to the ground on his hands and knees, his back now facing the assailant. The assailant then shot the officer in the back, causing the officer to roll over on his back, and then the assailant – according to Harkins – fired two more shots point blank at the officer, one hitting him between the eyes, killing him instantly. When Harkins saw the officer go flat to the ground, he began fearing for his own life and sped away. Within a block he spotted a police paddy wagon and alerted the officers in it that a police officer had been shot.
Harkins’s account of the officer being thrown down on his hands and knees was borne out by the slit in Faulkner’s trousers at the knee and the denuding of his knee.
Harkins – like Chobert – described the assailant as being a little taller and heavier than the officer. Faulkner was 6 feet and weighed 200 pounds. Harkins said the assailant’s clothing was “not too dark and it wasn’t light.” His description fit Billy Cook’s burly street vendor associate, Kenneth Freeman, who was about 6 foot, but weighed over 200 pounds. Freeman that night wore a green army jacket – not too dark and it wasn’t light.
Mumia’s jury did not get to hear from Harkins because the prosecution did not want his testimony to put to rout the perjured testimony of Cynthia White and Robert Chobert.
· In Faulkner’s shirt pocket was a driver’s application bearing the name Arnold Howard. (When the prosecution turned over evidence to the defense, it concealed that the driver’s application had been found in Faulkner’s clothing, claiming it had been recovered from inside Cook’s VW.) Police rousted Howard from his house pre-dawn that morning and brought him in for questioning. He informed them that he had loaned his driver’s application to his friend, Kenneth Freeman. Police then brought Freeman in for questioning. Here, delivered to them, was Faulkner’s assailant. But the police did not want Freeman for this crime even after star prosecution witness Cynthia White twice picked him out of lineups that morning. Freeman was released without having to even bother to contact an attorney.
Five days later, in what the Philadelphia Inquirer reported as a probable police arson, Freeman’s vending stand was burnt to the ground at 3 a.m., effectively bankrupting him. Less than four years later, on the night the police firebombed the MOVE home on Osage Avenue – killing 11 MOVE members, including five children and burning down 60 other row houses in the process – Freeman’s dead body was found nude, gagged and bound – his hands cuffed behind his back – in an empty lot on Roosevelt Boulevard. Coincidence? The coroner listed the 31-year-old’s death as a heart attack and no investigation of his obvious murder was undertaken.
· Perhaps the most absurd claim – absurd as in unbelievable – that the crime-scene police made was that they didn’t conduct even the most elementary tests of Mumia’s gun to determine if it had been recently fired, by either feeling it for heat or smelling it. Neither, they claimed, did they run the most basic trace-metal test on Mumia’s hands to determine if he had fired his gun. What is probable is that they did conduct all three of these tests and each was negative.
· The 26-crime scene photos taken by freelance photographer Pedro Polakoff at the scene of Officer Faulkner’s killing represent another major indication of the Philadelphia Police Department and Philadelphia D.A.’s Office total disregard for what the actual crime-scene evidence revealed. Polakoff arrived at the crime scene 12 minutes after hearing of the shooting on his police scanner. When Polakoff offered the photos to the police and the D.A.’s Office in early 1982, neither wanted them. And for good reason. The photos, taken in total, tell a story neither the police nor the prosecution wanted anyone to know about.
For one thing, the photos depict a stunning nonchalance on the part of the police at the crime scene, particularly the crime scene of a felled fellow officer. Normal police protocol for securing a crime scene – instead of heightened – was abandoned. Polakoff would tell German author Michael Schiffmann 25 years later that it was the “most messed up crime scene I’ve ever seen,” because it was never secured and he, and many others, had free access to it.
The photos also show a disturbing pattern of evidence manipulation and mishandling of crucial forensic evidence within minutes of the police arriving at the scene.
In an interview after his photos were released in 2007, Polakoff said that when he first arrived at the scene the working theory of the police was that the shooter had fled. He said police were interviewing people to get information about the shooter’s description.
4. How the prosecutor used perjured and coerced testimony to get the death verdict:
It wasn’t enough for Prosecutor Joe McGill to try Abu-Jamal on the facts and evidence of the case. Time and again, from his pre-trial dealings through his summations at both the guilt and sentencing phases of the trial, he would go over the top in his effort to send Abu-Jamal to the electric chair.
· McGill knew there was another person in Billy Cook’s VW. He knew that another man – Arnold Howard – had loaned his driver’s application to Cook’s street-vendor partner, Kenneth Freeman, and that application was in Faulkner’s shirt pocket when the officer was killed. He most likely knew that Cynthia White had twice picked Freeman out of lineups hours after Faulkner’s death.
· At Billy Cook’s assault trial – held three months prior to Mumia’s trial – Cynthia White had testified – under questioning from McGill – about both the driver and a passenger in Cook’s VW getting out of the car as Faulkner approached. One of McGill’s first orders of business when White took the stand at Mumia’s trial was to get on record the exact opposite testimony. McGill began by asking her if anyone else was there besides the defendant, the police officer, and Billy Cook. Her answer was, “No.” Getting White to limit the people at the crime scene to only those three was an essential deception McGill needed to establish to counter any other eyewitness testimony regarding one or more black men fleeing the scene.
· McGill, apparently, had no ethical misgivings about using Cynthia White’s obviously perjured testimony. He knew that not one eyewitness had seen her at the scene. He also knew that in her original statement to police – given within an hour of Faulkner’s shooting – that she had Mumia running from the parking lot and from as far as 10 yards away firing four or five shots at Faulkner. After police arrested her again for prostitution three days after Faulkner’s death, she expanded her statement only to say that she saw Billy Cook strike Faulkner. Arrested again five days later, she finally got the message. She was now willing to alter her first two statements to comport with the actual evidence that Faulkner was shot at close range. He reward was to ply her trade with impunity for the six months leading up to Mumia’s trial. She admitted at Billy Cook’s assault trial that she had not been arrested since providing her third statement to police on December 17. Another perk the D.A.’s Office threw her way was to allow her live-in pimp to sign his own bail on a felony theft charge the month before Mumia came to trial.
· The same lack of ethical concern can be said of McGill’s use of Robert Chobert as a witness. Chobert had made the absurd claim in his statement that his taxi was parked directly behind Faulkner’s patrol car and that he saw it all from just feet away. Polakoff’s photos, by the way, belie this claim as did all other eyewitness testimony except for that of Cynthia White. At the time, Chobert was on felony probation and violating that parole by driving a taxi with a revoked driver’s license – revoked for two DUIs. McGill knew that it was nonsense for Chobert to claim that he would park directly behind any police car, but he needed him to bolster White’s less than credible standing as the key prosecution witness. So he used Chobert, simple as that. It didn’t seem to faze McGill that in Chobert’s original statement to police he had said the shooter had run 30 feet or so before collapsing. Mumia, of course, was found passed out just feet from Faulkner. In a subsequent statement to police, Chobert reduced the feet that Mumia ran to 10, still 10 feet more than was true.
· How desperate was the D.A.’s Office and the police to frame Mumia? One of the four witnesses who told police they saw one or more black men fleeing the scene immediately after the shooting was prostitute Veronica Jones. She would recant her original statement at trial after detectives visited her in her jail cell shortly before she was to testify at Mumia’s trial. At the time the 21-year-old Jones faced major felony charges for armed robbery, assault, and possession of an instrument of crime. She was looking at up to 15 years in prison. Her reward for cooperating turned out to be a sentence of five years’ probation on the felony charges against her. At Mumia’s Post-Conviction Relief Act hearing continuation in 1996, Jones bravely testified – under a threat of perjury charge from Judge Sabo – that Philadelphia detectives had coerced her into disavowing her claim about seeing two black men flee the crime scene. Sabo, of course, found her testimony not credible.
· The most credible witness the jury would hear from was a young accounting student – Dessie Hightower, whom the defense called to testify. Just as White had at Cook’s assault trial – Hightower would testify that Faulkner had approached the passenger side of the VW. A few minutes later, after hearing gunshots, Hightower observed someone running from the scene. The police, and presumably the prosecution, were so concerned with the exculpatory contents of his original statement that detectives re-interviewed him in the weeks to come for five hours on one occasion and then a week later came to his workplace and picked him for more questioning, some of it conducted with Hightower wired to a polygraph machine. Hightower would be the only witness the police polygraphed even though White and Chobert had so obviously altered their original statements. In addition, no polygraphs were administered to Officer Garry Bell and hospital security guard Priscilla Durham who concocted the damning “hospital confession” from Mumia.
· There was ample reason to polygraph both of them. For one thing, neither reported the so-called confession to the prosecution until over two months later when McGill himself interviewed them. More pointedly, the two officers who accompanied Mumia from the time he was placed in the paddy wagon until he went into surgery – and who never left his side during that interim – were Officers Gary Wakshul and Stephen Trombetta. In separate, signed statements given to detectives shortly after Mumia went into surgery, both Wakshul and Trombetta reported that Mumia had made no comments. Wakshul’s statement read, “During this time, the Negro male made no comments.”
When Mumia’s court-appointed attorney, Anthony Jackson, made an 11th hour attempt at Mumia’s trial to call Wakshul as a rebuttal witness to debunk Mumia’s alleged hospital confession, prosecutor McGill said he did not know where he was, although McGill knew that Wakshul was at home awaiting the possibility of being called to court to testify. The jury never got to hear from Wakshul or Trombetta – only from Bell and Durham. At trial, Bell testified he had no recall of even seeing Durham at the hospital.
5. Mumia’s failed appeals – “the Mumia exception” and his legal status now:
Mumia’s legal odyssey has been beset by the same sort of machinations as his arrest and trial. In 1989, the Pennsylvania Supreme Court turned down his first appeal even though one of his claims was almost the exact same claim that had persuaded the same court to grant Lawrence Baker a new trial in 1986. In that case, Commonwealth v. Baker, the court overturned Baker’s death sentence for first-degree murder on the grounds that the prosecutor improperly referenced the lengthy appeal process afforded those sentenced to death. That prosecutor – Joseph McGill – was the same prosecutor who used similar – almost identical – language in his summation during both the guilt and sentencing phases of Mumia’s trial. The judge who failed to strike the language in the Baker case was the same judge who presided at Mumia’s trial, Common Pleas Court Judge Albert F. Sabo.
The State Supreme Court ruled in Baker that the use of such language “minimize[ed] the jury’s sense of responsibility for a verdict of death.” When Mumia’s appeal included the very same issue, the court reversed its own precedent in the matter, denying the claim in a shocking unanimous decision.
A year later, in Commonwealth v. Beasley, the Pennsylvania Supreme Court reinstated the death sentence of Leslie Beasley, but exerted its supervisory power to adopt a “per se rule precluding all remarks about the appellate process in all future trials.” This rule not only reinstated the Baker precedent but it ordered all prosecutors in the state to refrain once and for all from referencing the appellate process in summations to the jury. The court could have made this new rule retroactive to Mumia’s case, but did not.
As Amnesty International declared in its pamphlet published in 2000 about Mumia’s case, the Pennsylvania Supreme Court’s judicial scheming leave “the disturbing impression that the court invented a new standard of procedure to apply to one case only: that of Mumia Abu-Jamal,” Temple University journalism professor Linn Washington aptly dubs this and subsequent court decisions denying Mumia a new trial “the Mumia exception.”
Mumia’s Post-Conviction Relief Act hearing in 1995 was doomed from the beginning when Judge Sabo – Mumia’s original trial judge – would not recuse himself from the case and the Pennsylvania Supreme Court would not remove him for bias.
Mumia’s federal habeas corpus appeal – decided by Federal District Judge William Yohn in 2001 – should have resulted in at least an evidentiary hearing on Mumia’s Batson claim that the prosecutor unconstitutionally purged blacks from Mumia’s jury by using peremptory strikes to exclude 10 or 11 otherwise qualified black jurors from the jury pool. Judge Yohn’s error was egregious and could have been easily avoided if he had held one evidentiary hearing on that defense claim. But during the two years that Judge Yohn considered Mumia’s habeas appeal, he held no hearings.
The U.S. Court of Appeals for the Third Circuit should have corrected that district court mistake by remanding Mumia’s case back to Judge Yohn to hold the evidentiary hearing on the Batson claim, but in another example of the “Mumia exception,” the court instead continued the long and tortured denial of Mumia’s right to a fair trail. In a 2 to 1 decision released on March 27 that reeks of politics and racism, the court ruled that Abu-Jamal had failed to meet his burden in providing a prima facie case. He failed, the majority wrote, because his attorneys at his Post-Conviction Relief Act hearing in 1995 neglected to elicit the prosecutor’s reasons for peremptorily removing 10 otherwise qualified blacks during jury selection.
In the decision written by Chief Judge Anthony Sirica, the court stated that] “Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a prima facie case can be made without evidence of the strike rate and exclusion rate. But, in this case [i.e., “the Mumia exception” is in play], we cannot find the Pennsylvania Supreme Court’s ruling [denying Mumia’s Batson claim] unreasonable based on this incomplete record.”
In a nutshell, the majority denied Mumia’s Batson claim on a technicality of its own invention, not on its merits. It also broke with the sacrosanct stare decisis doctrine – the principle that the precedent decisions are to be followed by the courts – by ignoring its own previous opposite ruling in the Holloway v. Horn case of 2004 and the Brinson v. Vaughn case of 2005. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. In a Ninth Circuit Court of Appeals ruling in 1989 in a case entitled United States v. Washington, the decision stated that an appeal court’s panel is “bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions.” None of those variables were in play when the Third Circuit Court majority ruled against Mumia’s Batson claim.
Judge Thomas Ambro’s dissent was sharp: “…I do not agree with them [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for.”
In other words, the majority, in this case alone, has upped the ante required for making a Batson claim beyond what the U.S. Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court did not require that the racial composition of the entire jury pool be known before a Batson claim may be raised. The high court ruled that a defendant must show only “an inference” of prosecutorial discrimination in purging potential jurors. Prosecutor McGill’s using 10 or 11 of the 15 peremptory strikes he deployed is just such an inference – and an extremely strong one. McGill’s strike rate of over 66 percent against potential black jurors is in itself prima facie evidence of race discrimination. Prima facie is a Latin term meaning “at first view,” meaning the evidence being presented is presumed to be true unless disproved.
In commenting on Holloway v. Horn, a Batson-type case with striking similarities to Mumia’s claim, Judge Ambro – the lone Democrat-appointed judge on the three judge panel – demonstrated just how disingenuous the panel’s ruling against Mumia’s Batson claim was. “In Holloway, Judge Ambro wrote in his dissent, “we emphasized that ‘requiring the presentation of [a record detailing the race of the venire] simply to move past the first state – the prima facie stage – in the Batson analysis places an undue burden upon the defendant.’ There we found the strike rate – 11 of 12 peremptory strikes against black persons – satisfied the prima facie burden.” In Holloway, the Third Circuit ruled that the Pennsylvania Supreme Court’s decision denying Holloway’s Batson claim was “contrary to” and an “unreasonable application” of the Batson standard.
In fact, in rendering both its Holloway and Brinson decision, the Third Circuit specifically rejected the requirement that a petitioner develop a complete record of the jury pool. In making its ruling in Mumia’s appeal, it reversed itself to make the pretext of an incomplete jury record his fatal misstep. Basing its ruling against Abu-Jamal’s Batson claim on this invented pretext demonstrated how desperate the majority was to block Abu-Jamal’s Batson claim. What the majority was implying was that Abu-Jamal’s jury pool may well have consisted of 60 or 70 percent black people and that therefore the prosecutor’s using 66 percent of his strikes to oust potential black jurors was statistically normal and did not create a prima facie case of discrimination. This hypothesis is, of course, absurd on its face. Blacks have been underrepresented on Philadelphia juries for years – and remain so today. What was likely was that the jury pool at Abu-Jamal’s trial was at least 70 percent white.
The Third Circuit – if it had followed its own precedent – would have found the Pennsylvania Supreme Court’s ruling denying Abu-Jamal’s Batson claim “contrary to” and an “unreasonable application” of the Batson standard and remanded the case back to Federal District Court Judge Yohn to hold an evidentiary hearing to determine the prosecutor’s reasons for excluding the 10 potential black jurors he struck. If that hearing satisfied Judge Yohn that all of the prosecutor’s reasons for striking potential black jurors were race neutral, Mumia’s Batson claim would fail. If, conversely, that hearing revealed racial discrimination on the part of the prosecutor during jury selection – even if only concerning one potential juror – Judge Yohn would be compelled to order a new trial for Abu-Jamal.
Mumia is left with only two remedies to correct the flawed Third Circuit ruling. His first option is to request the Third Circuit to review its decision en banc where the entire panel of active judges sitting on the Third Circuit would conduct oral arguments anew. On April 9, the Third Circuit granted Abu-Jamal’s petition for Extension of Time to File for Rehearing En Banc, which allowed Mumia’s lead attorney, Robert Bryan of San Francisco, until May 27 to file.
According to Bryan, the basis of the petition he filed is that the Third Circuit’s “decision conflicts with a decision of the U.S. Supreme Court or of the court” – in this case the Third Circuit – “to which petition is addressed and consideration of the full court is therefore necessary to secure uniformity of the court’s decisions,” and “the proceeding involves one or more questions of exceptional importance.”
There is some likelihood that the Third Circuit might agree to meet en banc because the three-judge panel’s decision to deny Abu-Jamal’s Batson claim went against that court’s own well-established precedents in granting similar Batson claims in the past. However, the barrier to en banc deliberations is a high one: the majority of the active judges must vote to sit. In the case of the Third Circuit, there are 12 active judges eligible to vote, but three have already recused themselves from this particular politically charged case, meaning five of the remaining nine remaining judges would be needed to vote to go forward en banc. Considering that the decision denying Mumia’s Batson claim was written by the court’s chief judge and that the majority of active judges are Republican appointees – four of them by George W. Bush – Mumia has most probably had his one day before the Third Circuit. I can only hope I’m wrong about that.
Barring an en banc hearing by the Third Circuit, Mumia’s final option is to appeal the Third Circuit’s ruling to the U.S. Supreme Court, which has on three previous occasions denied to take up his case. This time, though, there is a remote possibility that the high court might intervene in the case because the Third Circuit’s ruling created new law by placing new restrictions on a defendant’s ability to file a Batson claim. The Third Circuit, in effect, tampered with and undermined a long-established Supreme Court ruling. One clean, simple option for the Supreme Court would be to remand the case to federal district court for the Batson hearing the Third Circuit should have ordered.
Such a hearing would, in all probability except for “the Mumia exception,” lead to a new trial for Mumia. I pray that day will come.
Hans Bennett is a Philadelphia photojournalist mostly focusing on the movement to free Mumia Abu-Jamal and all political prisoners. An archive of his work is available at insubordination.blogspot.com and he is also co-founder of "Journalists for Mumia," created to challenge the long history of corporate media bias, whose website is: Abu-Jamal-News.com