Date: July 8, 2008
From: Robert R. Bryan, lead counsel
Subject: 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
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, California 94123-4117
Lead counsel for Mumia Abu-Jamal
[http://us.mc304.mail.yahoo.com/mc/compose?to=RobertRBryan%40aol.com]
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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.
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OpEd News 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/
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