LEGAL UPDATE AND ORIENTATION BY INTERNATIONAL CONCERNED FAMILY AND FRIENDS OF MUMIA ABU-JAMAL
posted August 11, 2002
1. We are still waiting for a response in the US Court of Appeals to both sides' appeals of federal Judge William Yohn's December 2001 ruling, in which he set aside Mumia's death sentence-though he gave the state of Pennsylvania the option of conducting a new hearing at which Mumia could be sentenced to death again. If that hearing is not held, and Yohn's decision is upheld, then Mumia would serve life in prison without parole.
Mumia's status is unchanged given these appeals. Contrary to popular opinion, he remains on Death Row, locked up 23 hours a day as before, with plexiglass barriers between him and all visitors, and with all the other deadly restrictions inflicted on Death Row inmates. The Court of Appeals can respond in numerous ways to the appeals by both sides, ranging from overturning Yohn and reimposing the original death sentence to upholding Yohn and leaving the question of a new sentencing hearing up to the state, to setting aside the guilty verdict in Mumia's original trial.
2. Clearly, Mumia is not even guaranteed a reprieve from execution. The danger of a possible new death warrant was underscored by the June 17th US Supreme Court decision which threw out a ruling made by the 3rd US Circuit Court of Appeals (the very same court which overruled Mumia's death sentence) last November. That lower court decision had overturned the death sentence of another Pennsylvania Death Row inmate, George Banks. The lower court had overturned Banks' death sentence based on improper instruction to the jurors in the sentencing phase of the trial that violated Supreme Court standards for jury instruction set in 1988, precisely the basis for Yohn's overturning of the death penalty in Mumia's case. In an unsigned decision, the US Supreme Court questions whether those 1988 standards could be applied retroactively to a 1982 decision.
The earlier appeals ruling in the Banks case had prompted courts to overturn the death sentences of several of Pennsylvania's 245 Death Row inmates, including Abu-Jamal.
With this new Supreme Court decision, Mumia's situation is that much more dangerous.
Adding to this danger is the fact that two gubernatorial candidates in Pennsylvania are actively campaigning for the death penalty and for the execution of Mumia.
3. Mumia's current attorneys filed for a reopening of the Post Conviction Relief Appeal (PCRA) hearings-held initially in 1995-'96- claiming that Mumia's former attorneys failed to represent him properly by never arguing for his innocence and by never presenting key evidence pointing to Mumia's innocence. They filed this petition both in Pennsylvania Supreme Court and in the Third Circuit of the US Court of Appeals. On June 11, the Third Circuit stated that it would take no action in the case pending the Pennsylvania Supreme Court's final decision. This appears to be primarily a procedural ruling, without major significance, but points to a potentially long process before us.
Meanwhile, in Pennsylvania State Supreme Court a very important challenge is being waged by Mumia's attorneys to expose the true story of systematic bias in excluding African-Americans from Mumia's jury. The attorneys have asked to depose (take sworn testimony from) Supreme Court Justice Ronald Castille, about whom there have been recurrent charges of conflict of interest since at least 1987. And now there are additional charges, flowing from a ruling by the US Supreme Court (in the 1986 "Batson" case) which states that the exclusion of jurors based on race is grounds for the reversal of a conviction.
The Pennsylvania Supreme Court based its rejection of Mumia's motion to depose Castille on three of its prior decisions. But a closer examination of all three actually support the legitimacy of deposing Castille. In one (Commonwealth v Basemore, 2000)-the only decision in which Castille did not participate-the court actually granted Basemore a new hearing.
Here's the story: Before he was elected to the Supreme Court, Castille was a District Attorney in the County of Philadelphia. During an initial appeal of Mumia's original conviction, Castille, as District Attorney, signed the papers filed for the prosecution, arguing against Mumia's appeal. Clearly this raises a serious question about his ability to rule impartially regarding Mumia's case whenever it comes up before the State Supreme Court.
In 1996, when Mumia's appeal of Albert Sabo's denial of post- conviction relief reached the Court, Mumia's attorneys asked Castille to recuse himself-that is, recognize that he had a conflict of interest and choose not to participate in the deliberations or in the decision. Castille-the only one who has the power to take such action- rejected this request. Now, new and more damning evidence of Castille's conflict of interest and his active participation in the dissemination of a videotape aimed at teaching Assistant DA's in Philadelphia how to exclude African-Americans from juries, has emerged.
One of the key issues in all of Mumia's legal proceedings has been the racist character of the jury selection at his original trial. In a city that is over- whelmingly African American, only two African Americans were selected to participate in his jury. Judge Sabo consistently allowed the prosecution to challenge African Americans and remove them during the jury-selection process. In his ruling last December on Mumia's federal Habeas Corpus petition, Federal District Court Judge William Yohn identified the question of racist jury selection and the instructions given to the jury as the two issues that he (that is, Judge Yohn) considered worthy of review by the Federal Court of Appeals. (Mumia's attorneys are asking the higher court to consider a wide range of questions.)
Since 1998, one of the items of evidence which Mumia and his attorneys have been trying to enter into the record is a videotape prepared by one Jack MacMahon. It is a training tape, used to educate Assistant District Attorneys in Philadelphia on how to exclude African American jurors without making it obvious that the basis of exclusion was racial in nature. This tape was produced in 1986, several years after Mumia's trial, but also the same year that the U.S. Supreme Court issued its "Batson" ruling (see above). The court declared that a demonstrable pattern of racial discrimination in jury selection was grounds for overturning a conviction.
This is precisely what the MacMahon tape does demonstrate-a pattern of racial discrimination-adding to the weight of overwhelming statistical evidence that African American jurors were consciously excluded during Mumia's 1982 trial. The videotape is clear evidence of an attempt to maintain the traditional racist practices of the Philadelphia DA's office, while camouflaging those practices in order to circumvent the protections newly offered to defendants by the Batson decision. Specifically, with regard to Mumia, the MacMahon tape takes the evidence that there was a racist exclusion of jurors out of the realm of mere statistics and demonstrates that a conscious plan lay behind those statistics.
The Pennsylvania Supreme Court denied Mumia's request to allow this videotape into the record. Justice Castille participated in that denial. The court justified its rejection of Mumia's motion on the grounds that the tape could not be shown to reflect general practices of the Philadelphia DA's office, since it was only a presentation by a single individual, MacMahon. It now comes to light, however, that the tape has the official insignia of the city of Philadelphia on it-along with the name of Ronald Castille as District Attorney.
And so we have evidence of still another conflict of interest by Justice Castille. Not only did he participate in a court decision on a matter in which he had been personally involved, he actually knew for certain that the basis cited by the court for denying Mumia's motion was completely false. The videotape was an official document of the District Attorneys office, not some random production by a lone individual. And Castille's failure to reveal his personal participation in the production and dissemination of this videotape, when the issue came up before the Supreme Court where he was sitting as a judge,constitutes a serious violation of professional ethics.
The Supreme Court as a whole rejected Mumia's motion to take a deposition on these questions from Justice Castille. But Mumia's attorneys are attempting to reargue the point before the court, partly based on the fact that Judge Castille should not have participated in that discussion and decision.
This issue of systematic racial bias in jury selection, and the court exchanges surrounding it, are potentially explosive if they become widely known. The facts here reveal in a particularly stark way the racist, frame-up nature of the original prosecution and death- sentence imposed on Mumia. The issue of racial bias was also recently highlighted when Terri Maurer-Carter, a court stenographer during the time of Mumia's original trial, stated in an affidavit that she overhead trial Judge Albert Sabo say, referring to Mumia: "I'm going to help them fry the n----r."
Implications For Activists
1. We should wage a campaign to have Castille recuse himself, and to force the Pennsylvania Supreme Court to grant Mumia's motion to depose Castille on the use of the MacMahon tape, thus entering the MacMahon video into the record. This could make a tremendous difference, as racial bias in jury selection constitutes a basis for overturning Mumia's conviction, and could then be reviewed by the federal courts. Additionally, given the current climate in the courts of vulnerability on this issue, we could put a lot of pressure on various officials and the courts themselves to address the racial bias in the selection of Mumia's jury.
2. We must point to the contradiction between Federal Judge Yohn's ruling that Mumia may appeal on the issue of racial bias in the selection of his jury, and the Castille/Pennsylvania Supreme Court suppressing the investigation of this issue.
3. We must popularize the fact that in the case of Basemore, the use of the MacMahon videotape was considered a "highly flagrant violation of the US Constitution." Basemore was granted the right to appeal. There was (unlike in Mumia's case) considerable evidence of his guilt. He nonetheless won the right to an evidentiary hearing on a claim he had not raised at all before-something Mumia has been fighting for in the federal courts.
4. We need to circulate and get signatures on the petition to current Pennsylvania governor Schweiker. (For information contact the NY Free Mumia Coalition--212-330-8029).
5. We must force the candidates in the present election for Pennsylvania Governor-and particularly the likely winner, Democratic Party leader, Ed Rendell, who was the DA for Philadelphia during the early '80s when Mumia was prosecuted, found guilty, and sentenced to death-to take responsibility for "their" Supreme Court's "irregularities." Rendell is campaigning on a pro-death penalty platform and specifically in support of Mumia's execution, with a totally fabricated version of what happened on the night of December 9th 1981. Rendell and Castille share a long history of involvement in the effort to frame-up and murder Mumia Abu-Jamal.
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