Abu-Jamal Attorney Responds to Philly DA ----Is the DA afraid the Third Circuit will grant a new trial?

Assistant District Attorney Hugh J. Burns Jr. wrote in his motion that since “Mr. Rendell was the elected district attorney at the time in question, and so would have been responsible for the supposed 'routine' racially discriminatory practices of Philadelphia prosecutors, Abu-Jamal's accusations necessarily implicate Mr. Rendell personally,"

This request followed the March 22 announcement that Abu-Jamal would have oral arguments in Philadelphia on May 17, where the court will consider four different issues that have already been certified for appeal.   Supporters have already begun organizing a mass-demonstration in Philadelphia on May 17, and many feel that the DA’s request is actually designed 1) to delay the oral arguments and 2) to move Abu-Jamal’s case to a more conservative circuit that will be less sympathetic to the issues being presented for a new trial.

Abu-Jamal’s attorney, Robert R, Bryan, strongly opposed this move by the District Attorney and filed his response with the court on April 13.  http://www.freemumia.com/pdfs/RecusalResponse.pdf

In this interview (conducted on April 16), Bryan responds to this recent move from the DA and provides background on the issues being considered on May 17.

San Francisco attorney Robert R. Bryan has appeared as chief counsel in numerous murder cases and specializes in death-penalty litigation. He is a member of the bar of the United States Supreme Court, California, New York, Alabama, various federal courts, and is the former Chair of the National Coalition to Abolish the Death Penalty, Washington, DC.   Mumia Abu-Jamal first began writing Mr. Bryan in 1986 and in 1991 formally asked him to take his case. The attorney had to decline at that time due to a full schedule of other capital case commitments. In 2003 Mr. Bryan was again approached, and finally agreed to become lead counsel for Mr. Abu-Jamal. He can be contacted via email:    RobertRBryan@aol.com

 Hans Bennett: Last week, you filed a response to the DA's request to have the 3^rd Circuit Court recuse itself?  What's this all about?

Robert R. Bryan: I was surprised that the Philadelphia District Attorney actually asked for the disqualification of every judge on the U.S. Court of Appeals for the Third Circuit.  This seems really over the top.  On Friday, April 13, I filed a response aggressively opposing this effort by the DA. One of my concerns is that the prosecution not be allowed to use this ploy to delay oral argument which is set for May 17.

Mumia has been locked up for over a quarter of a century and on death row for 24.  This day for oral arguments has been a long time coming and we do not want justice delayed.  That is the bottom line.  Also, I feel that this court can be fair.  The grounds presented by the DA for disqualification of every judge are baseless and absurd.

I have been doing death penalty work for three decades and this is a novel approach.  Of course, in some cases a judge might not be fair and must be disqualified.  An example would be when I reopened in New Jersey the Hauptmann-Lindbergh Trial of the Century on behalf of Anna Hauptmann, the widow of Richard Hauptmann.  He was executed in 1936 for the kidnap-murder of Charles A. Lindbergh, Jr.; that was long before I was born.  In the 1980s I uncovered evidence suppressed by the government establishing that Mr. Hauptmann was in fact innocent.  We were litigating the case in the U.S. District Court, Newark.  I asked for the recusal of the judge assigned to the case in the belief he could not be fair because his father had been involved in the initial 1932 Lindbergh kidnap investigation as a police chief.

Recusal is statutorily required where a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed facts, or where there is the appearance of impropriety.  However, I do not see those conditions in the case of Mumia Abu-Jamal, where the DA wants to disqualify not just one judge, but rather the entire court.

Bennett: Has the three-judge panel even been selected yet?

Bryan: No.  We do not at this point know whom the three judges will be to hear and decide the case.  For the District Attorney to be asking for disqualification under the circumstances seems absurd.

Bennett: In December, 2005, the U.S. Court of Appeals shocked many by agreeing to consider two claims not “certified for appeal” by Judge Yohn in 2001.  Do you think the DA is threatened by the 3^rd Circuit because they may fairly consider the issues and grant your client a new trial?

Bryan: The prosecution seems intent on doing just about anything to avoid that result:  a new trial not riddled with racism.  The DA's efforts seem not only for the purpose of delaying the May 17 oral argument, but is also a transparent attempt to maneuver the case into being heard by really conservative judges from other circuits.  This court, the Third Circuit, has a reputation for being fair and evenhanded, much more than some of the other courts.  That is all Mumia and I want—fairness.

The United States is divided into different circuits.  This particular circuit is known for being just, particularly when there have been constitutional abuses and has been willing to grant relief.  It is clear what the DA is trying to do.  The prosecution wants Mumia's case out of the Third Circuit and heard instead by judges from elsewhere who are more conservative and less concerned about constitutional violations, particularly with death penalty cases such as this.

A word of caution.  Being in the Third Circuit certainly does not guarantee a favorable outcome.  What Mumia and I want is that his case be fairly heard and adjudged.  If that occurs then we have a good chance of being granted a new trial, since the constitutional violations are so egregious.  Racism and unfairness are threads that have run through this case since the beginning.

Bennett: In 2003 a state court ruled against considering court stenographer Terry Maurer-Carter's affidavit.  Since this time, have you been able to include her affidavit in the current federal appeal, despite the state ruling?

Bryan: Ms. Maurer-Carter came forward in August, 2001 with startling new evidence.  She revealed that during the 1982 trial she overheard Judge Albert Sabo state, in reference to Mumia, that he was going to help “fry the nigger.”  Her sworn declaration was immediately filed in the U.S. District Court.  Three weeks later on September 17, 2001, a motion was filed federally in an effort to expand the judicial bias claim, contending that the newly discovered evidence established the judge “was racially prejudiced” against Mumia.  The evidence also was submitted to the state court, and then as part of a petition I filed March 8, 2004 in the United States Supreme Court.  The issue we presented was whether it is permissible under the Fifth, Sixth and Fourteenth Amendments for a judge to preside over a capital murder trial in which he was overheard stating in reference to the  accused that he was going to help “fry the nigger.”  Just quoting those horrible words of Judge Sabo sends chills down my spine.

Bennett: You have included her statement in your current 3^rd Circuit appeal, in particular regarding the fourth issue being considered:  Judge Sabo's unfairness at the 1995 PCRA evidentiary hearings.

Bryan: Yes.  We have four issues in this case and this one concerns Judge Sabo's bias, not at the 1982 trial, but during the 1995 post-conviction (PCRA) evidentiary hearing.  I am stuck with that limitation since the lawyers previously on the case did not as a matter of law accuse Judge Sabo of bias at the trial.  The judge who was deciding whether or not to grant a new trial in 1995 was the same person who presided over the 1982 trial in which my client was convicted and sentenced to death.  Judge Yohn assumed as part of his federal rulings in 2001, that in denying relief Judge Sabo was impartial and fair.  Now we know that was not true.  When it came to Mumia Abu-Jamal, Judge Sabo made a bigoted remark that he was intent on seeing my client “fry”, to be executed.  The constitutional principles of due process, fundamental fairness, and equal protection of the law, had taken a holiday from his courtroom.  As you know, Mumia has been on death row ever since the trial.

Aside from the numerous violations of my client's constitutional rights detailed in our briefs, we also have this evidence that Judge Sabo said he was going to help the prosecution kill my client, referring to him in the most racist and despicable manner imaginable.

Sabo's “fry the nigger” comment is interrelated with what we are arguing on May 17, but it is not the sole basis of the argument that Judge Sabo was unfair at the 1995 hearing.  But it is now part of it and we put it in because it was raised shortly following discovery, and was presented to the U.S. District Court.  So I feel it is legitimately there before the Court of Appeals.

As you know, I have litigated numerous death penalty cases around the country for three decades.  Back when I was trying many cases in the South, I went before some very racist judges.  One even jailed me three days for contempt of court for challenging his racism and bias.  Incidentally, my client was cleared—acquitted of murder and all related charges.  With all the racism I have witnessed, never have I been before someone who was so arrogant about his or her racism as to just openly talk about it.  Mumia’s case occurred not in the South, but in Philadelphia, which, aside from the police department,  is a sophisticated city.  Yet, in this case Judge Sabo refers to Mumia as a “nigger” and boasts about helping the prosecution ensure that he is executed.  This is the big gorilla in the room that must be addressed; it cannot be ignored.

Bennett: It's remarkable that Judge Pamela Dembe ruled in 2001 that even if Maurer-Carter was correct, it simply does not matter.  She said that 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.”

Bryan: I feel that as a matter of law Judge Dembe was wrong, and of course rejecting that she employed faulty judgment.  The subsequent ruling by the Pennsylvania Supreme Court, which I took to the United State Supreme Court, was likewise based upon illogical reasoning.  Nevertheless, as I mentioned earlier, this issue was also presented during the same period in the U.S. District Court.  The sworn declaration of Terri Maurer-Carter was promptly filed federally.

It is interesting that Ms. Maurer-Carter’s husband was a police officer and she an official court stenographer who has received awards for the excellence for her court-reporting work.  She is just a normal personal, not political, but what Ms. Maurer-Carter overheard really bothered her.  I have great respect for her, that she had the courage to come forward with this information.  Ms. Maurer-Carter could have remained silent and stayed out of this, and she and her family would certainly feel safer at night.

Bennett:        Do you have an estimate of you how long it will take for the 3^rd Circuit Court to make the ruling on a new trial?

Bryan: It is difficult to say.  The court has a goal of having an internal draft decision within 60 days following assignment or all supplemental briefing.  Yet, if a judge on the panel wishes to concur or dissent, he or she should submit the opinion within 45 days after a second judge’s approval of the majority decision.  These are only targets the court sets for itself so it could reach a decision much quicker, or longer.  I hope to have a ruling before the end of the summer, but that depends upon what happens internally with the court; it could be sometime in the fall.  I do not think it will sit on this case for a long time.  This is a court not known to procrastinate and hold up the wheels of justice.

Bennett: What rulings could the court make?

Bryan: I will give you the two extremes of what might happen: (1) If the court decides that Mumia deserves a new trial, the judges might order a retrial. (2)  If the court rules against us on everything, it we would be looking down the barrel of an execution and need to petition the United States Supreme Court.  Of course, there are various rulings the court could make between these two extremes, such as sending the case back to a lower court for further hearings, only ordering a retrial on the issues of life or death, etc.

The issues in this case are of great constitutional importance.  In additional to the work by associate counsel Professor Judith L. Ritter and me, there has been support from highly respected legal organizations.  The NAACP Legal Defense Fund has written a friend of the court brief on the “racism-in-jury-selection” issue.  There was also a brief filed by the National Lawyers Guild, which has been joined by the National Conference of Black Lawyers, International Association of Democratic Lawyers, Charles Hamilton Houston Institute of Race and Justice at Harvard Law School, the Southern Center for Human Rights, and the National Jury Project.  That is quite a list of human rights-oriented organizations arguing that this case cries for a new and fair trial not riddled with racism, as it was initially.   Bennett:  What can supporters around the world do to best aid your battle in the courts?

Bryan: People need to openly express their concern for human rights, opposition to the death penalty, and demand what we are after in this case: a completely new trial, at the conclusion of that trial, my client could go home to his family.  That is the bottom line, and that is what’s driving me and the legal team:  Mumia’s ultimate freedom.

That being said, I consider it very important that people's voices are heard in many ways, like peacefully demonstrating, writing letters to newspaper editors, op-ed pieces, news articles.  It is really like what you, Hans, are doing:  just getting the word out publicly about the injustices that have occurred in this case—letting the facts speak for themselves. That is what people can do.  Of course we need financial support for the legal effort, and there is a fund strictly for the legal defense, the Committee To Save Mumia Abu-Jamal (see below).

The big thing is that that people's voices are heard.  I was in Berlin, Germany, in January and spoke to an audience of well over two thousand people.  The audience’s boisterous reaction to my remarks was overwhelming—they recognized the importance of Mumia to the cause of people’s basic rights.  There is also much activism in many other countries, such as France, England, Spain, Italy.  Mumia Abu-Jamal has become a worldwide symbol in the struggle against the death penalty, and against human rights abuses.

When arrested Mumia was a prominent journalist who was known as the Voice of the Voiceless, because he spoke out against governmental abuses and corruption.  The authorities thought when they prosecuted and put him on death row, they would silence him.  Ironically he is heard by more people today through radio and print than he was when free.  Mumia does not write about himself, but rather about big issues like women's rights, racism, wrongs committed by the U.S. and other governments in Iraq, how we treat prisoners at places like Guantanamo, the education of young people, and poverty.

The Philadelphia District Attorney’s goal is to kill Mumia, to see him put him in the death chamber, strapped down, and murdered in the name of the law.  The hope of the state is to silence Mumia once and for all.

We all need to understand that the racism and unfairness continues through the present and we are trying to change that.

Bennett: Anything else to add?

Bryan: The Batson issue, which concerns racism in jury selection, is very important.  It was not just in my client's case, but it was actually the modus operandi of lawyers in the District Attorney’s Office to remove people from the jury who were black and poor.  This rendered the trial unfair.  The U.S. Supreme Court as well as the U.S. Circuit Court of Appeals have spoken on this issue, ruling that this type of behavior by prosecutors is constitutionally unacceptable.

Bennett: How long have you and Mumia know each other?

Bryan: Mumia started writing me in 1986 and we eventually got to know each other, but I had to turn down the case because I was too busy with other death penalty work.  When he came back to me just over four years ago, I could not say no, because it was too important and he needed help.

Mumia has reminded me that what we are all doing is far bigger that just his case.  It relates to everyone on death row, and is about people everywhere who are unfairly treated, political prisoners around the globe.  We need to bear in mind that a victory for Mumia Abu-Jamal will help other people.  That is Mumia's concern.  He hopes that what we are doing in his case will help other death row inmates, and put a spotlight on the things wrong with legal systems everywhere.  The racism needs to be exposed, brought out to the light of day, and changed.  We are about making change for a lot of people.

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To contribute to the legal defense of Mumia, check should be made payable to the “National Lawyers Guild Foundation.”  The NLG Foundation is a tax-exempt, nonprofit charitable organization under Internal Revenue Code Section 501(c)(3).  Donations should be mailed to: Committee To Save Mumia Abu-Jamal, P.O. Box 2012, New York, NY 10159.

The four issues being considered are:

#1.  Whether the penalty phase of Mumia's trial violated the legal precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling.  This issue was grounds for Yohn’s overturning the death sentence in 2001 and is now being appealed by the DA.  Yohn ruled that sentencing forms used by jurors and Judge Sabo's instructions to the jury were confusing.  Subsequently, jurors mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to be considered as weighing against a death sentence.   #2.  “Certified for appeal” by Yohn in 2001, the Batson claim, addresses the prosecution's use of peremptory challenges to exclude Blacks from Mumia'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. 

At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia is 44% black, Abu-Jamal's jury was composed of ten whites and only two blacks. From 1977-1986 when current Pennsylvania governor Ed Rendell was Philadelphia’s DA, the evidence of racism is striking: from 1977-86, the Philadelphia DA struck 58% of black jurors, but only 22% of white jurors.

#3.  The legality of McGill's statement to the jury minimizing the seriousness of a verdict of guilt: “if you find the Defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.” 

In 1986 the Pennsylvania Supreme Court ruled against McGill in another case (Commonwealth v. Baker) on the same grounds.  When Mumia addressed this same issue in his 1989 appeal with the  State Supreme Court, the court reversed its decision on the legality of such a statement—ruling against the claim for a mistrial. 

Incredibly, just one year later, in the very next case involving this issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored the precedent.  However, this would not affect the ruling against Mumia, because the court ruled that this precedent would only apply in “future trials.”   

#4.  The fairness of Mumia's 1995-97 PCRA hearings when the retired, 74-year-old Judge Sabo was called back specifically for the hearing.  Besides the obvious unfairness of recalling the exact same judge to rule on his fairness in the original 1982 trial, his actual PCRA bias has been extensively documented. 

During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that the “behavior of the judge…gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case.” Concluding the PCRA hearing, Sabo rejected all evidence and every witness presented by the defense as not being credible.  Therefore, Sabo upheld all of the facts and procedures of the original trial as being correct.

For more information, visit mumia.org (Philadelphia), freemumia.com (New York City), freemumia.org (San Francisco), or emajonline.com (Educators for Mumia). For the latest on Abu-Jamal from the independent media, check out Bennett’s new “Voice of the Voiceless” series on Abu-Jamal being published in the months leading up to the oral arguments at: http://hbjournalist1.googlepages.com/ms

 Hans Bennett (insubordination.blogspot.com) is a Philadelphia-based photojournalist who has been documenting the movement to free Mumia and all political prisoners for more than 5 years