It appears that we haven’t heard the last of Mumia Abu-Jamal. Oral arguments lasted more than two hours, far longer than the ordinary 15 minutes per side. The three judges hearing the case are Chief Judge Anthony J. Scirica, who was appointed by President Reagan, and Judges Thomas L. Ambro, appointed by President Clinton, and Robert E. Cowen, appointed by Reagan.
Mumia was tried for the 1981 slaying of white Philadelphia Police Officer Daniel Faulkner while Faulkner was purportedly “arresting” Abu-Jamal’s younger brother William. The trial judge in Mumia’s case has sent more men to death row than any other judge east of the Mississippi in the last 50 years.
The panel is weighing several issues: whether the prosecution improperly eliminated black jurors under Batson v. Kentucky, improper prosecutorial summation, whether the trial judge was racially biased, and penalty phase jury instructions. Press accounts suggest that the panel’s questioning indicates some interest by the panel in the Batson claim. All three judges have previously granted relief in other cases on Batson grounds.
blacks whites and two whites blacks served on the jury. Prosecutors struck 10 blacks and five whites from the pool, while accepting four blacks and 20 whites, though all had said that they could vote for a death penalty. In their pleadings Mumia’s counsel noted that in a city that is 44 percent African-American, his jury initially had only three black members (one was removed before the start of the trial, under questionable circumstances also possibly relating to judicial bias, leaving only two). Over the course of six capital cases between 1977 and 1986, the same lead trial prosecutor had struck74 percent of potential black jurors while striking only 25 percent of white jurors. Furthermore, defense data show that over the same period, during which Ed Rendell was Philadelphia’s district attorney, prosecutors working under his direction collectively used their peremptory challenges to eliminate black jurors 58 percent of the time, compared to only 22 percent of the time for white jurors.
If the appellate court decides that this damning statistical evidence shows or suggests a pattern of racism in jury selection, it would be bound to either order a new trial, or to remand the case back to Judge Yohn for a full hearing on the jury bias issue.
At oral argument the panel, according to press accounts, suggested they needed to know the racial makeup of the approximately 150-person jury pool before they could determine whether the selection had been biased. “It doesn’t prove anything,” without the larger number for comparison, Judge Robert E. Cowen said. No such record exists.