After decades of legal and political maneuvering, the twenty-year-old death-penalty case of black journalist Mumia Abu-Jamal is entering a critical stage. The former Black Panther activist’s case is currently before the Court of Appeals for the Third Circuit, which could decide to grant a new trial or reinstate his death sentence. Last December Federal District Judge William Yohn at least temporarily overturned Abu-Jamal’s death sentence while upholding his conviction for the 1981 first-degree murder of white Philadelphia police officer Daniel Faulkner.
Abu-Jamal’s best hope for winning such a trial is his claim that the prosecution improperly barred blacks from his jury. Prosecutor Joseph McGill used eleven of his fifteen peremptory challenges to remove blacks otherwise fit to serve, resulting in a panel that had nine whites, three blacks and four white alternates. (After the replacement of one black, the final jury had ten whites and two blacks.) Judge Yohn last December rejected this claim, ruling that Abu-Jamal had not made a “prima facie case” of racial bias. In reaching that decision, Yohn declined to consider several defense studies. One showed that during the 1977-86 period covering the two terms of District Attorney Edward Rendell (now governor-elect of Pennsylvania), local prosecutors used peremptory challenges to bar 61 percent of otherwise qualified black jurors. Another showed that McGill, over the course of six capital trials, removed 74 percent of qualified black jurors.
The problem is that in rejecting those damning studies, Yohn made several serious factual errors. He claimed that both covered periods after Abu-Jamal’s trial, and that they were thus not relevant. In fact, however, a close examination of his ruling shows that he was confusing them with two other studies submitted by the defense. The two studies he rejected not only cover periods that bracket Abu-Jamal’s 1982 trial, they both include his trial in their data sets. Although Yohn granted the defense a certification of appealability on the jury selection issue, Abu-Jamal’s attorneys for at least eight months failed to notice the errors and have yet to file any appeal based upon them.
A new trial, if held, could include testimony not heard the first time around. For example, in 1982 the jury heard devastating testimony that Abu-Jamal “shouted out” a confession while being brought into the hospital. (This was controversial, because no witness reported such an alleged confession until two months after the shooting.) The trial judge barred Abu-Jamal’s lawyer from calling an officer assigned to stay with Abu-Jamal from the time he was picked up until he was operated on, who had told an investigator at the end of his tour that “during this time, the negro male made no comments.” A new trial would also hear expert testimony that Abu-Jamal (himself shot by a bullet that entered his upper chest and lodged in his lower back) could not have been shot by Faulkner after having shot the officer, as claimed by the prosecution at the original trial, but rather had to have been shot first by Faulkner. Such testimony would undermine the basis of his first-degree murder charge. (At his original trial Abu-Jamal had no funds to hire experts, leaving the prosecutor’s claim unchallenged.)
Abu-Jamal’s new attorneys (hired last year), Eliot Grossman and Marlene Kamish, neither of whom has federal death-penalty appeals experience, have so far focused their attempts to win Abu-Jamal a new trial on the claim that Faulkner’s real killer is a self-described hit man named Arnold Beverly. A black ex-con with a lengthy rap sheet, Beverly claims he was hired to kill Faulkner by corrupt Philadelphia cops worried that Faulkner might be ratting on them to the FBI. But Abu-Jamal knew of Beverly’s story in 1999, and, after hearing arguments pro (from his then-attorney Rachel Wolkenstein) and con (from his lead attorney, Leonard Weinglass), rejected it as not believable and potentially damaging. In order to now use Beverly as a witness Abu-Jamal would have to convince a court that he had been deliberately misled by Weinglass, a highly regarded lawyer with a long history of representing leftist defendants. So far, the courts have rejected such an argument. The danger in pressing ahead with the legally doomed Beverly claim is that it could sour the Third Circuit court on the entire defense appeal. There is reason to believe that similar efforts to inject Beverly into the case already convinced Judge Yohn not to hold any evidentiary hearings.
Meanwhile, the district attorney is appealing the overturning of Abu-Jamal’s sentence before the same court. For now, Abu-Jamal remains on death row in near-solitary confinement.