Racist Jury Selection in the Case of Mumia Abu-Jamal

Posted: 13/10/2012 in In my words - zenith

Rejoice and praise characterized the streets on the 4th day of November 2008, the day when Barack Obama was voted into office by the American people. It was a day of pride, jubilee, and hope; however this hope meant different things for different people. One man, Mumia Abu-Jamal, along with his supporters hoped for a miracle in the form of a Presidential pardon from Philadelphia’s Death Row. Mumia Abu-Jamal has been a resident of this peculiar institution since May 25, 1983 and a prisoner of the state since December 9, 1981 for the alleged first degree murder of police officer Daniel Faulkner. While it is not the focus of this paper to discuss the inhumanity of the US death sentence, it is however important to understand that in this case it was not justified. From the very beginning of the case, well before the two sides entered the court-room, there were a great deal of inconsistencies with the testimonies of the prosecution and the way in which the case was conducted. Racism plagued the trial from the judge’s chair to the witness stand, and to the jury box; the three pinnacle sources of the court decision. It is the interest of this article to discuss explicitly the racism found in the jury and jury selection process, which illegally placed Mumia on a straight path to the bars behind which he lives to this day. The court of Judge Albert Sabo in the Philadelphia County Court of Common Pleas ignored a number of Supreme Court and Philadelphia Court decisions pertaining to racist jury selection and jury misleading. The trial of Mumia Abu-Jamal was a blatant violation of the precedent set in the case of Strauder v. West Virginia and affirmed in Batson v. Kentucky, which prohibited racist selection of jurors in the court. As a result of this violation of precedent along with deception of the jury by the prosecution, it is strongly supported that Mumia deserves a re-trial in which justice is finally served and “democracy” can finally be found in a country that claims to be rooted in it.
On the evening of December 9th 1981, Mumia Abu-Jamal was driving his taxi cab when he came upon Daniel Faulkner, a Philadelphia police officer, in an altercation with his brother. The events that followed his arrival are known only to Mumia, his brother, the late Faulkner, and the late Kenneth Freeman. It is the argument of the defense that Mumia ran to his brother’s aide when Faulkner shot him in the chest debilitating him (Francome). It is at this point that Faulkner was shot possibly by Kenneth Freeman, the passenger in the vehicle being stopped by the officer. Witnesses then say they saw two men running from the scene leaving the wounded Mumia and Faulkner in the street. It is the argument of the prosecution however, that there was no other passenger (even though Freeman’s driver’s license was found in the officer’s pocket) and that Mumia was the first shooter (Francome). The force from his bullet supposedly caused Faulkner to turn around and let off a shot hitting Mumia in the chest. Finally they say Mumia, although shot and incapacitated, straddled the dying officer and let off his five remaining 38 caliber charter arms revolver rounds, sending a fatal bullet between the eyes. There is a great deal of evidence against the prosecution’s argument ranging from crime scene neglect, bullet trajectory evidence, witness coercion by the police, and much more, however these things were never brought into the courtroom (Francome). Something else that wasn’t brought into the courtroom was a fair constituency of black jurors to interpret the evidence that made it past the prosecution’s review.

In a city where the black population was 40 percent of the total, the trial’s jury was composed of a mere 18 percent, not even half of that. The remaining members of the jury were none other than the typical white middle class individuals, perfect for the manipulation of the prosecution. Ultimately, the final count stood at two blacks and fourteen whites (including the four alternate jurors), however a racially representative jury of that city would have been thought to have at least five black jurors; this was of course far from the case in the trial of Mumia Abu-Jamal (“The Case of Mumia Abu-Jamal”, 11). This process of what is known as “jury stacking” is unconstitutional, however is protected by the right of the attorney to strike potential jurors based strictly on peremptory challenges, which do not require any explanation. “The prosecution used 11 out of its 15 peremptory strikes to remove African Americans from the jury” (Amnesty Int’l, 13). However, when jurors are excluded strictly based on race alone, this is a violation of Constitutional law provided by the 14th Amendment’s Equal Protection Clause. Jennie Dawley, for example, was a black woman who was the only juror selected while Mumia was conducting his own defense. During this time before the trial even began, she asked the court to be excused in the evening in order to take her ill cat to the veterinarian. Judge Sabo quickly denied this request without first informing the defense (Ibid, 13). When she decided to go against this order, she was dismissed from the trial. Normally there would be no issue in making this decision since she defied the order, however a white juror requested an excusal to participate in a civil service exam during actual court time. This, according to the precedent previously set by Sabo, would be impermissible, however it was granted by Judge Sabo. Demonstrating an even greater deal of favoritism, Sabo even temporarily halted the trial and assigned a court official to accompany the white juror (Ibid, 13-14).
How can one justify the denial of a woman permission to care for her sick cat before the trial has even started, yet the approval of another person to take a civil service exam during the trial. Does this not support the belief that Judge Sabo in his treatment of the jurors was racially biased? If this doesn’t, then the fact that Dawley was replaced by a white alternate juror should. Not only would this alter the ratio of blacks to whites in the jury booth, but it exposed yet another issue in the jury selection. Robert Courchain, the replacement juror, said he may not be able to set aside his bias in the case, stating, “unconsciously I don’t think I could be fair to both sides” (Amnesty Int’l, 14). Similarly, two other jurors were allowed onto the jury who held prior prejudice to the situation. “… a jury was selected that included a man whose best friend was a former Philadelphia police officer on disability after being shot while on duty, as well as an alternate juror whose husband was a Philadelphia police officer” (Abu-Jamal, 171). While being questioned, one even admitted that he would be unable to be a fair juror due to the experience of his friend. To top it all off, only seven of the eighty prospective jurors prior to the case had not admitted to being familiar with media coverage of the case (Amnesty Int’l, 13). This is important because having prior negative experience with similar cases or premature opinions of the trial resulting from media coverage leads to an obviously biased jury. They are more likely to have prejudice against the defendant and more likely to convict. It is not uncommon of prosecution to attempt to pack the jury with individuals who would be most likely to convict, whether it be due to personal experience, racial bias, or any other reason. This was just the case in Commonwealth of Pennsylvania v. Mumia Abu-Jamal and the reason why this man, who is believed to be innocent, deserves a re-trial. He deserves the chance to present all the evidence that has been developed over the years to a jury that abides by the Equal Rights Clause of the Constitution. This is further supported by the earlier mentioned case of Strauder v. West Virginia.

Dating all the way back to the year 1880, Taylor Strauder was a black man convicted of murder by an all-white jury as a result of West Virginia’s exclusionary policy. This, he argued, was a violation of his newly given Constitutional rights, causing him to file a petition with the state court. He was denied by the state court and Strauder then decided to bring his case to the US Supreme Court. The Court spoke through Justice William Strong in holding that this categorical exclusion of blacks from the jury based solely on their race was a blatant violation of the 14th Amendment to the US Constitution (“Strauder v. West Virginia”). This amendment of course served to “to assure to the colored race the enjoyment of all the civil rights that, under the law, are enjoyed by white persons, and to give to that race the protection of the general government in that enjoyment whenever it should be denied by the States” (“Batson v. Kentucky). This being said, was it not the right of the potential black jurors in the state of West Virginia to participate in the trial convicting one of their peers? Was it also not the black defendant’s right to have his case reviewed by a jury of his racial peers? It was the opinion of the Court that the latter was indeed his right and conveying this point further, Strong concluded the Court’s strong opinion saying; “Concluding, therefore, that the statute of West Virginia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offence against the State…” (“Strauder v. West Virginia”). An important point to note is that the court recognized the rights of the black criminal defendant in making its decision, not the rights of the potential jury members. The reasoning behind this was since the juries would be “drawn from a panel from which the state has expressly excluded every man of [a defendant’s] race” (Ibid). Nevertheless, Strauder was able to take victory and create the precedent against the exclusionary ways of the state court not only of West Virginia, but throughout the nation, including Philadelphia.
How then could it have been possible for Mumia Abu-Jamal to be put up against a Jury consisting of over 80% whites? The Philadelphia court completely ignored the precedent created in the Strauder case, ultimately leading to the unfair trying of the former Black Panther. This normally shouldn’t seem so extraordinarily biased against Mumia, however the city’s legal history seems to support a specific disposition for him. In 1986, 4 years after the Mumia trial, James Kirkland Batson was convicted of burglary by an all-white jury in Louisville, Kentucky. In the case Batson v. Kentucky, Batson argued to the Supreme Court much like Strauder that his 14th amendment rights under the Equal Protection Clause were violated by the exclusion of black jurors. Reaffirming the precedent set forth by the Strauder case, the Court stated that prosecutors may not use race as a deciding factor in executing preemptory challenges (“Batson v. Kentucky”). Batson’s victory and the Court’s opinion acted retroactively to Mumia Abu-Jamal’s case and highlighted the racist and illegitimate court system in Philadelphia. Indeed this is a very bold claim that is unfortunately further supported by the extensive, seemingly never ending case of Mumia. Now, with the jury that he desired, minus the two black jurors, the prosecuting attorney needed to unleash the next stage in his mission to condemn the life of the defendant.

Joseph McGill, lead prosecuting attorney, employed a number of tactics in order to play off the emotions of the already biased jury. On numerous occasions he attempted to make significant issue of Mumia’s membership in the Black Panther Party as a teen (Abu-Jamal, 177). This would become an act liable for argument using the 1992 case of Dawson v. Delaware in which the US Supreme Court ruled that the introduction of a defendant’s political views is unconstitutional and a violation of free speech. Further, McGill specifically and successfully gave the jury the false impression that ultimately their decision would not be final. “Prosecutors know that jurors are more likely to deliver a death sentence if they think it unlikely to be carried out” (“The Case of Mumia Abu-Jamal,” 28). The prosecution continuously suggested that Mumia would have opportunity for a limitless series of appeals, saying, “Ladies and gentlemen, you are not asked to kill anybody. You are asked to follow the law… nobody at all has died in Pennsylvania since 1962 for an incident that occurred in 1959” (Ibid, 28). Statements like this aim to encourage the members of the jury to satisfy the desires of those who want to see this alleged cop killer in the hot seat so to speak. In giving them the impression that their decision wouldn’t be final, the jury is now made to be more likely to decide along with the majority, inside and outside the courtroom, because no one wants to be the one bad seed that went against the consensus. Here was yet another instance in which the jury was blatantly lied to and placed under the delusion that in the end, they wouldn’t hold much responsibility for taking this innocent man’s life. In 1986, the Pennsylvania Supreme Court ruled this was an illegal procedure, however introduced another “Mumia Exception,” as they have come to be known. It was the case of Commonwealth v. Baker in which the same type of jury coercion was performed and as a result, Baker’s death sentence was overturned, giving rise to another court precedent providing hope to the wrongfully incarcerated Mumia Abu-Jamal. “The court then reversed this precedent in 1989 by upholding Abu-Jamal’s death sentence, only to reestablish it in 1990, in the case of Commonwealth v. Beasley…” (Ibid, 29). Clearly, a particular exception was made to keep Mumia on the path to an early demise.

An interesting exposé to bring into the picture comes from about a year following the Batson ruling. A training videotape made for Philadelphia city prosecutors was made public and incited outrage when its racist content could be seen by all. The video showed the Assistant District Attorney, Jack McMahon, instructing a group of young future prosecutors on how to pick and choose the best jury for their cases. He is quoted saying, “Let’s face it, the blacks from the low-income areas are less likely to convict. There’s a resentment to law enforcement…You don’t want those guys on your jury…If you get a white teacher in a black school who’s sick of these guys, that may be the one to accept” (“McMahon DA Training Video”). He then goes on to speak on how to avoid placing educated people on the jury in fear that they will take the concept of without a reasonable doubt “too seriously” (Ibid). This was the first time, with this indirect confession, that it was blatantly obvious that the Philadelphia judicial system was one of racist action and discriminatory practice. It is without a doubt that it can be inferred that these same tactics and beliefs were at play in the trial of Mumia Abu-Jamal, and only further support right to a trial de nuvo.

In December of 2001 the significance of the jury in the case was more than evident when Judge William H. Yohn Jr. voided Mumia’s death sentence while upholding the conviction. Judge Yohn’s Memorandum and Order states; “…the jury instructions and verdict sheet in this case involved an unreasonable application of federal law. The charge and verdict form created a reasonable likelihood that the jury believed it was precluded from considering any mitigating circumstance that had not been found unanimously to exist” (Yohn, 269). Not only was there a problem in picking the jury, but even after picking the jury, the prosecution mislead its members. They were made to believe a number of falsehoods, such as the one described above. The prosecuting attorney, Joseph McGill, led the men and women of the jury to believe that the decision had to be unanimous. This leads to a number of issues; firstly, those few who oppose the guilty verdict face a sort of peer pressure in which they do not want to be the “problem children” per-say and decide against the majority. In doing this, they would force the entire jury into a dead-lock in which they must re-discuss the entire case until either those in favor of a guilty verdict change their minds or vice-versa, and no one wants to be the rotten egg that adds an extra week or two onto the deliberation process. Now as a result of the exposure this falsification of the legal process, it seemed that a glimmer of hope was seen on the side of the defense, however it would not be enough to incite praise because Mumia was still behind bars serving a life sentence.
Taking this further, Mumia’s habeas corpus was riddled with judicial errors that were initially ignored by the Third Circuit Court. On December 6, 2005, the US Court of Appeals for the Third Circuit acknowledged four issues for appeal in the ruling passed down by the District Court in the case. These issues included; use of a flawed jury verdict form and confusing instructions to the jury given by the judge; whether racial bias in jury selection existed in a capacity enough to produce a biased jury and therefore, an unfair trial; the prosecutor may have improperly attempted to reduce the jury’s sense of responsibility by telling them a guilty verdict would be deferred and subject to a slew of appeals; Lastly, whether the presiding Judge, demonstrated unacceptable bias in his conduct. These acknowledgements support the claims made earlier and show that they were initially being ignored to keep the forward movement of Mumia’s defense at a standstill. Unfortunately, it was not enough to keep the Third Circuit Court from returning on May 17, 2007 to hear oral arguments of the appeals and the Pennsylvania Commonwealth’s desire to reinstate the voided death sentence. The Commonwealth’s argument was based on the belief that Yohn’s ruling was flawed and should have been referred to the Pennsylvania Supreme Court. They attempted to discredit Mumia’s Batson claim by arguing that no complaints were made during the original jury selection, the fault of his assigned defense attorney, Anthony Jackson. On March 27, 2008, a three judge panel met to discuss the defense counsel’s argument that the trial was biased due to the fact that the judge was a racist and the jury was racially biased and misinformed. They upheld the conviction on this and another occasion in April 2009, shooting down yet another appeal. This leads us into the present day, almost thirty years following the initial conviction in 1982.

The case of Mumia Abu-Jamal is one that seems to carry a particular significance to the Commonwealth of Pennsylvania. It is very unclear however, what it is about this case in particular that has made the prosecution so unyielding in their wish to seem Mumia executed by the state. From the moment the gun-shots were heard on the day Officer Daniel Faulkner was murdered, Mumia Abu-Jamal was targeted as the suspect, the villain, the perfect victim of Philadelphia’s racist legal system. The most effective tool in assuring this highly likely innocent man found his way behind bars was the jury. This was well known to the prosecution who was a well-known friend to the judge presiding over the trial. Joseph McGill took advantage of preemptory challenges and the emotions of the members of the jury to make the conviction of Mumia Abu-Jamal inevitable. The Philadelphia legal system allowed this to occur despite a number of Supreme Court and State Court precedents, which were ignored in this case. It was very clear that the Commonwealth of Pennsylvania was not and is not going to rest until they see this man, who has become an international sensation, fry in a chair. No matter what though, the many supporters of Mumia from around the globe will not rest until he is in the comfort of his own home with the family he was never allowed to know.


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