[Ppnews] Analysis of Mumia court ruling & 4/19 Phila Demo

[Political Prisoner News]

http://phillyimc.org/en/node/66348 (Philadelphia Independent Media Center)

THE DEMONSTRATION IN PHILADELPHIA WILL BE ON 
APRIL 19! (NOT ON APRIL 26, AS WAS ORGINALLY ANNOUNCED)
--The reason we moved it is to maximize on the 
publicity in Philadelphia leading up to the PA 
democratic primaries.  The primaries will be the 
following week, so by holding our demonstration 
on the 19th we may be able to make use of the 
press.  Thank you for your understanding, and 
please help us clarify this matter by spreading the word.

**************************************
STATEMENT FROM PAM AFRICA, Coordinator of the 
International Concerned Family and Friends of Mumia Abu-Jamal (March 29, 2008):

Last week's court decision was not a 
victory.  While we obviously prefer to have Mumia 
alive, instead of executed, life in prison 
without parole is an unacceptable sentence for an 
innocent man that was convicted with a blatantly 
unfair trial.  Further, there is still no 
guarantee that he will not be executed.  Also, 
even if the overturning of the death penalty is 
eventually finalized, there is no guarantee that 
he will be moved into the general prison 
population, because the government has always 
found ways to make "exceptions" for political prisoners like Mumia.

Once again the courts have held Mumia's case to 
different standards than other cases. At the 1982 
trial Prosecutor McGill used 10 of his 15 
peremptory strikes to remove otherwise acceptable 
black jurors, yet the court ruled that there was 
not even the appearance of discrimination against 
just one of these black jurors!

Judge Thomas Ambro has noted this blatant 
double-standard with the court's rejection of the 
"Batson" claim regarding racist jury selection, 
and he states in his dissenting opinion that the 
court's ruling "goes against the grain of our 
prior actionsŠI see no reason why we should not 
afford Abu-Jamal the courtesy of our precedents."

We have absolutely no faith in the judicial 
system, but if Mumia does have a court 
proceeding, we will continue to mobilize to pack 
the courtroom and the streets in support of 
Mumia, just like we have always done whenever 
there was a courtroom proceeding for Mumia, 
whether he was present or not. However, we know 
that if Mumia gets justice, it will not come from 
the courts, but only from the pressure generated by the people.

Therefore, we will take to the streets with a 
mass-demonstration in Philadelphia on April 19 
demanding Mumia's release based on the evidence 
of both innocence and judicial misconduct from 
the City of Philadelphia all the way up to the 
federal level. In response to the recent court 
decision, numerous demonstrations have already 
been organized internationally and inside the US. 
On April 19, with the media spotlight on 
Pennsylvania's Presidential Primary Election, 
supporters from around the world will gather in 
Philadelphia to take a constitutional stand and 
show our outrage with this unjust court decision.
***************************************************
LINN WASHINGTON ON 3RD CIRCUIT DECISION ON MUMIA

IMPORTANT AND POWERFUL ARTICLE BY LINN WASHINGTON

The following article analyzing the recent 
decision by the Third Circuit to deny Mumia a new 
trial, is written by Philadelphia journalist and 
long time friend of Mumia, Linn Washington. It is 
an excellent piece, asserting straight up that 
there is NO victory in this decision as Mumia is 
not even granted life in prison without parole, 
horrific and unacceptable as that alternative 
is.  The prosecution still has the right to fight 
for and potentially win the execution of 
Mumia.  Also, in describing all the violations of 
their own precedents that the Third Circuit 
committed in making this decision, based on the 
minority position (remember it was a 2-1 
decision), Linn provides us, through that 
dissenting voice, a means for challenging the 
legitimacy, if not the legality, of this whole 
process.  We must publicize this information 
while asserting the total unacceptability and 
viciousness of this decision.  Read this 
article.  And let's together fight like crazy to 
defeat all those forces that are determined to 
silence, execute, and forever imprison our 
Brother Mumia.   ONTO PHILADELPHIA ON APRIL 
19TH!!!  FREE MUMIA AND ALL OUR POLITICAL PRISONERS.

Suzanne Ross, for the Free Mumia Abu-Jamal Coalition

*********************
Observations and analysis of Linn Washington Jr. 
on the federal Third Circuit ruling in the Mumia 
Abu-Jamal case issued on March 27, 2008. 
Washington, is a journalist and university 
professor in Philadelphia who has written 
extensively about the contentious case since 
Abu-Jamal's arrest in December 1981.

OVERVIEW
The long awaited ruling by the Third Circuit 
Court of Appeals in the Mumia Abu-Jamal case 
released on March 27, 2008 again displays the 
dismaying pattern of US courts ignoring precedent 
to deny relief to this death row journalist whose 
plight generates international support.

Precedent in American law means courts following 
previous court rulings when determining specific legal issues.

Precedent is the bedrock of American law.

America law requires courts to follow precedent 
unless significant evidence and/or compelling 
rationales necessitate changing precedent.

This Third Circuit ruling changes precedent. This 
ruling changes precedent by applying legal 
procedures in a highly questionable manner to 
dismiss compelling evidence of injustice against Abu-Jamal.

The Third Circuit did uphold the elimination of 
Abu-Jamal's death sentence. This is no victory 
because the ruling upheld his conviction thus 
condemning Abu-Jamal to life in prison.

This ruling refused to grant Abu-Jamal a new 
hearing or new trial on three compelling issues: 
prosecutors using racism to exclude African 
Americans from the jury during Abu-Jamal's 1982 
trial; the prosecutor making improper comments to 
that '82 jury at the end of the trial; and 
pro-prosecution bias by the '82 trial judge during a 1995 appeals hearing.

The Third Circuit previously granted relief to 
persons convicted of murder in Philadelphia after 
ruling that Philadelphia prosecutors had 
illegally excluded African Americans from juries.

However, in this Abu-Jamal case ruling, the court 
found no fault in evidence of exclusion of 
African Americans from the jury in his 1982 trial.

Curiously, the evidence of exclusion at 
Abu-Jamal's trial is of equal or greater 
magnitude than proof of exclusion previously 
found acceptable for relief by the Third Circuit.

These previous rulings on jury discrimination 
formed the precedent on that issue for the Third Circuit.

That precedent stated it is wrong for prosecutors 
to discriminate against even one black potential 
juror. Additionally, that precedent stated 
defendants did not have to object to jury 
selection discrimination by prosecutors immediately when it occurred.

Yet, this ruling reversed precedent on those two points of legal procedure.

A week before this Abu-Jamal ruling, the US 
Supreme Court granted relief to a death row 
inmate in Louisiana because of a discriminatory 
jury selection process. That Supreme Court ruling 
was written by a Justice on that court who 
formerly served on the Third Circuit.

That Justice, Samuel Alito, had approved relief 
to Philadelphia murder defendants due to 
discriminatory jury selection practices by 
prosecutors. Alito, in a February 2005 Third 
Circuit ruling, stated prosecutors commit a 
violation by removing "any black juror because" 
of their race - a position similar to the 
position contained in that recent US Supreme Court ruling he authored.

THIRD CIRCUIT RULING
The Third Circuit's ruling rested on a procedural 
finding by two of the three judges on this 
appeal's court panel. This finding stated that 
lawyers for Abu-Jamal during the 1982 trial and 
the 1995 appeal hearing failed to follow the 
procedures legally required to properly raise the 
issue of prosecutors improperly using racism during the jury selection process.

The panel's majority asserted that "Abu-Jamal has 
forfeited his Batson claim by failing to make a 
timely objection" to improper procedures by 
prosecutors referencing the US Supreme Court's 
1986 Batson ruling that outlaws the exclusion of 
black jurors for reasons rooted in racism.

Philadelphia area author and investigative 
reporter Dave Lindorff notes the absurdity of 
holding Abu-Jamal's lawyer responsible for not 
strictly following procedures during the 1982 
trial that the US Supreme Court did not create 
until four years later in that 1986 Batson case.

No lawyer (or judge) in the United States could 
predicted what procedure the US Supreme Court 
would order four years in the future observes 
Lindorff, author of the seminal 2003 book on the 
Abu-Jamal case: "Killing TimeŠ"

In reaching this conclusion against Abu-Jamal's 
jury discrimination claim, that Third Circuit 
panel's majority created a new standard for 
persons raising Batson claims in that court.

This standard requires that a Batson violation 
claim must be raised at the time of jury 
selection -- a contemporaneous objection.

Interestingly, in reaching this conclusion of 
procedural errors by Abu-Jamal's attorney, the 
panel's majority failed to note that this lawyer 
at 1982 trial was unfairly thrust into the jury 
selection process after that process was underway 
without the opportunity to do any preparation.

The trial judge granted the prosecutor's request 
to remove Abu-Jamal from selecting his own jury, 
a decision without merit that unfairly benefited 
the prosecutor and stripped Abu-Jamal of his 
right to represent himself. Plus, this action 
aggravated tensions between Abu-Jamal and his attorney.

Further, the panel's majority faulted an 
Abu-Jamal lawyer for not properly raising the 
jury selection racism issue during Abu-Jamal's 
first appeal in the late 1989s to the Pa Supreme 
Court without acknowledging a major error 
committed by the lawyer who filed that appeal.

That attorney prepared that appeal without ever reviewing the trial transcript.

There is no way that attorney could have prepared 
a legally valid appeal without knowing what 
specifically had happened at trial. (That appeal 
attorney was also suffering from what proved to 
be a fatal brain tumor, a medical condition that 
impaired that attorney's cognitive abilities.)

In creating this new standard, the panel's 
majority makes it harder to prove Batson 
violations. Plus, this standard changes that 
court's precedent on procedures needed to raise Batson claims.

The judge who dissented from his two colleagues 
faulted them for creating this new standard, a 
standard not ordered by the US Supreme Court.

"This case's newly created contemporaneous 
objection ruleŠgoes against the grain of our 
prior actions, as our Court has addressed Batson 
challenges on the merits without requiring that 
an objection be made during jury selection in 
order to preserve" future appellate review, the dissenter said.

This judge, speaking specifically to changing 
precedent, said since Third Circuit precedent did 
"Šnot have a federal contemporaneous objection 
ruleŠI see no reason why we should not afford 
Abu-Jamal the courtesy of our precedents."

Additionally, this dissenter stated that jury 
discrimination practices displayed in a now 
infamous video-taped training session at the 
Philadelphia DAs Office gave "a view of the 
culture" of that office during the 1980s when Abu-Jamal was tried.

This dissenter criticized his two colleagues for 
failing to make the obvious connection between 
the discrimination instruction given at the taped 
session and discriminatory practices used by 
Philadelphia prosecutors before, during and after the 1980s.

"Indeed, given that Abu-Jamal's trial preceded 
Batson, it is not far-fetched to argue that the 
culture of discrimination was even worse," the dissenter declared.

Previously, the Third Circuit ordered new federal 
trial court hearings to collect more evidence to 
enable full and fair determinations on jury discrimination claims.

The Third Circuit's ruling rejected that procedure for Abu-Jamal.

MAJOR FLAWS IN COURT RULINGS
This practice of creating new court standards to 
only apply to Abu-Jamal was criticized in an 
Amnesty International report of the Abu-Jamal 
case controversy released in 2001.

AI criticized the Pa Supreme Court for altering 
its prior rulings - precedents - to reach results against Abu-Jamal.

In 1986, for example, the Pa Supreme Court 
overturned a Philadelphia death sentence after 
ruling that a prosecutor named Joseph McGill made 
improper comments to the jury during a trail 
presided over by Judge Albert Sabo.

McGill prosecuted Abu-Jamal in a 1982 trial presided over by Judge Sabo.

Abu-Jamal's attorneys had alleged that McGill 
engaged in jury selection discrimination - a 
claim documented by evidence but a claim that the 
Third Circuit panel's majority rejected. Sabo's 
rulings during that 1982 trail aided this documentable discrimination.

During Abu-Jamal's '82 trial, McGill made the 
same comments to the jury that the Pa high court 
faulted in its 1986 ruling. But when the Court 
upheld Abu-Jamal's conviction in 1989 it refused 
to find any fault with McGill making the same 
comments it had faulted him for in its ruling three years before.

Then, in 1990, the Pa Supreme Court reinstated 
its 1986 standard regarding prosecutors making 
improper comments like McGill made.

The Pa Supreme Court's flip-flopping on this form 
of prosecutorial misconduct led Amnesty 
International to state in its 2001 report that: 
"This contradictory series of precedents leaves 
the disturbing impression that the Court invented 
a new standard of procedure to apply it to one 
case only: that of Mumia Abu-Jamal."

McGill's improper comments to the jury faulted by 
the Pa Supreme Court in 1986 were an appeal issue 
before the Third Circuit Court. That federal 
court panel found no fault in McGill's comments, 
denying Abu-Jamal relief he should have received 
if those federal appeals judges fairly followed established law.

The Third Circuit panel also rejected allegations 
that Judge Sabo was biased during a major 1995 appeals hearing.

Sabo's biased antics during that 1995 proceeding 
were so outrageous this misconduct provoked 
strong, caustic criticisms from even 
Philadelphia's normally anti-Abu-Jamal media. An 
August 1995 editorial in the Philadelphia 
Inquirer blasted Sabo's "injudicious conduct" 
that included verbally badgering Abu-Jamal's 
attorneys and even briefly jailing one of those 
attorneys for objecting to one of his improper rulings.

Scores of newspaper articles from the New York 
Times to the ultra-conservative/law-&-order 
Washington Times reported on Sabo's 
pro-prosecution bias at that '95 appeal hearing.

The Pa Supreme Court curtly dismissed this 
widespread journalistic criticism by contending 
that the "view of a handful of journalists" did 
not convince that Court of Sabo's bias.

Five of the seven Pa Supreme Court justices that 
upheld Abu-Jamal's conviction in 1998 received 
campaign contributions from the lead group 
seeking Abu-Jamal's execution, Philadelphia's 
police union, the Fraternal Order of Police 
(FOP). One of those '98 justices was the ex-DA of 
Philadelphia who as DA fought to execute Abu-Jamal.

The Third Circuit agreed with the Pa Supreme 
Court's 1998 ruling that no evidence exists 
showing a "settled bias" by Sabo against 
Abu-Jamal. The Third Circuit panel made this 
assertion despite noting Sabo making a series of 
"intemperate remarks" against Abu-Jamal and his 
defense attorneys during that 1995 appeal hearing.

In another flip-flop ruling, the Pa Supreme Court 
in March 1988 found that a single statement 
uttered by the judge during the murder trial of a 
former Pa State Trooper "was extremely 
prejudicial" to this Trooper who killed a woman inside a judge's office.

Where the Pa Supreme Court granted a new trial to 
that killer cop because of that judge's one 
improper comment, one year later the same Court 
found no fault in numerous opinion laden 
statements Judge Sabo made during the Abu-Jamal trial.

Sabo rejected requests to remove himself from 
hearing that '95 appeal made by Abu-Jamal 
attorneys citing his pro-prosecution during the 
1982 trial. News articles, editorials and 
commentaries all faulted Sabo for not removing 
himself stating his failure recuse himself 
graphically displayed unfairness in a proceeding 
where fairness was desperately needed.

Journalistic watch-dogs normally hostile to 
Abu-Jamal sought the face of fairness in that '95 
proceeding both to follow established law and to 
quell critics claiming Sabo's unfairness against Abu-Jamal undermined fairness.

The federal panel's majority employed a legal 
procedure to sidestep Sabo's clear and illegal 
bias - an Achilles Heel of that federal ruling and this entire case.

It is incredible to contend that the widely 
condemned Judge Sabo who presided during most 
trial court proceedings in the Abu-Jamal's case 
did not violate any of Abu-Jamal's rights at any 
time - despite his history of violating rights in this case and other cases.

Judge Sabo handled 32 murder trials that ended in 
death sentences before his retirement. But 24 of 
those sentences in Sabo's courtroom had been 
vacated for errors as of June 2007 according to 
the American Civil Liberties Union (ACLU). Some 
of those death sentences were reverse due to 
misconduct and/or mistakes by Sabo.

Sabo had once ordered prosecutors to pursue a 
death penalty when the death penalty had been 
ruled illegal in Pennsylvania. Sabo's ordering 
that illegal procedure led to overturning that death sentence.

WHAT NEXT?
This March 2008 Third Circuit ruling leaves 
Abu-Jamal with few legal options to challenge his conviction.

Abu-Jamal can appeal the panel's ruling to the 
entire Third Circuit Court hoping for that full 
Court to overturn the panel's ruling. Further, he 
can appeal any Third Circuit ruling to the US Supreme Court.

There is a slight prospect of new action in Pa state courts.

The Third Circuit issued an order stating 
Abu-Jamal will receive a life-sentence unless 
Philadelphia prosecutors hold a new penalty phase 
hearing seeking to reinstate his death sentence within six months.

This mini-trial style hearing would allow 
Abu-Jamal to present evidence, including new 
evidence of innocence that has emerged like a flood since his first trial.

But it is unclear if prosecutors will pursue this 
route that could create evidence and procedure 
that could secure a new round of federal appeals for Abu-Jamal.

OVERLOOKED CRUX OF CASE
Sadly, the federal judges at the trial and 
appellate court levels, like judges in Pa state 
courts, have refused to uphold the most 
fundamental issue in the contentious Abu-Jamal case: the right to a fair trial.

Critics of Abu-Jamal's conviction from 
Philadelphia's Francisville section to France all 
feel he was denied a fair trial.

Police and prosecutors blatantly engaging in 
misconduct to secure a conviction destroys fair 
trial rights. A trial judge openly biased towards 
police and prosecutors destroys fair trial 
rights. Court applying the law in the Abu-Jamal 
case differently from applied in other cases destroys equal justice rights.

The Pa Supreme Court declared in a 1959 ruling 
involving a Philadelphia murder case that every 
defendant is entitled "to all the safeguards of a 
fair trialŠeven if evidence of guilt piles as high a Mt EverestŠ"

Abu-Jamal was four-years-old when the Pa Supreme 
Court issued that 1959 ruling against judges and 
prosecutors cutting-corners during a trial.

Abundant evidence documents that corners-cut by 
the prosecutor and judge during Abu-Jamal's trial 
and by judges during his appeals corrupted his 
rights to a fair trial and equal justice - rights 
guaranteed by the US Constitution.

In June 2007, state courts in Pennsylvania 
overturned the 200th death penalty case since 
1978 when that state reinstated executions, the ACLU stated.

It is incredible to contend that 200 death 
penalty cases contained errors egregious enough 
to be vacated but not a single element in the 
Abu-Jamal case warrants either a new hearing or a new trial.




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