Harkins described the shooter as a little taller and heavier than the 6-foot, 200-pound Faulkner. Robert Chobert told police in his first statement that the shooter had an Afro and weighed about 225 pounds. (Abu-Jamal, also about 6-foot, wore in his hair in dreadlocks and weighed 170 pounds at the time.)
In Billy Cook’s April 29, 2001, affidavit he declared that Freeman was with him the night of the shooting, was armed, and fled the scene after Faulkner was shot. Cook said he did not see who shot Faulkner.
Freeman would meet an ignominious death hours after Philadelphia police firebombed the MOVE house on Osage Avenue in 1985, killing 11 MOVE members, including John Africa, whose corpse had been beheaded. Freeman’s dead body was found bound, gagged and naked in a vacant lot. There would be no police investigation into this obvious murder. The coroner listed his cause of death as a heart attack. The timing and modus operandi of the abduction and killing alone suggest an extreme act of police vengeance.
Bennett: In your book, you were very optimistic about the Third Circuit granting Abu-Jamal a new guilt-phase trial. Were you surprised by the March 27 ruling? If so, how do you account for such a surprising ruling?
O'Connor: I was incredulous. I thought the oral arguments on May 17 had gone extremely well for Abu-Jamal and that he would get a new trial. The 2-1 majority ruling demonstrated anew just how politicized this case always has been from the beginning and continues to be still. The two Republican-appointed judges on the panel formed the majority and the lone Democrat-appointed judge dissented. I hate to make it sound that simple, but the U.S. Supreme Court itself is not above making decisions based on party or ideological lines, and all too frequently does.
In its ruling, the majority stated it believed Abu-Jamal had “forfeited his Batson claim by failing to make a timely objection. But even assuming Abu-Jamal’s failure to object is not fatal to his claim, Abu-Jamal has failed to meet his burden in providing a prima facie case.” The majority stated that he failed because his attorneys at his PCRA evidentiary hearing neglected to elicit the prosecutor’s reasons for removing 10 otherwise qualified blacks by means of peremptory strikes during jury selection.
“Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a prima facie case can be made without evidence of the strike rate and exclusion rate. But in this case, we cannot find the Pennsylvania Supreme Court’s ruling [denying Abu-Jamal’s Batson claim] unreasonable based on this incomplete record,” the majority wrote. In a nutshell, the majority denied Abu-Jamal’s Batson claim on a technicality of its own invention, not on its merits.
Judge Ambro’s dissent was sharp: “…I do not agree with them [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for.”
In other words, the majority, in this case alone, has upped the ante required for making a Batson claim beyond what the United States Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court imposed no timeliness restrictions as to when a Batson claim may be raised, nor has the court done so in the intervening 22 years. Neither did it require that the racial composition of the entire jury pool be known before a Batson claim could be raised. (In fact, the Supreme Court recently added heft to its Batson ruling, ruling in Synder that the purging of only one black juror on the basis of racial discrimination was grounds for a new trial.) In addition, the Supreme Court ruled in 1986 that to establish a prima facie case for a Batson claim, the defendant must show only “an inference” of prosecutorial discrimination in purging even one black from a jury. Even the Third Circuit has never previously allowed the timing of a Batson claim to be material, nor had it ever ruled previously that not knowing the racial composition of the entire jury pool was a fatal flaw in lodging a Batson claim.
The fact that the prosecutor in Abu-Jamal’s case used 10 of the 15 peremptory challenges to exclude blacks from the jury – a strike rate of 66 percent against potential black jurors – is in itself an inference of discrimination. The result was that only three of the 12 jurors impaneled were black.
The Third Circuit should have remanded the case back to Federal District Court Judge Yohn – the judge who ruled on Abu-Jamal’s habeas corpus petition in 2001 – to hold an evidentiary hearing to determine the prosecutors’ reasons for excluding the 10 potential black jurors he struck. If that hearing revealed racial discrimination on the part of the prosecutor during jury selection, Judge Yohn would be compelled to order a new trial for Abu-Jamal.
Abu-Jamal is left with only two remedies to correct the flawed Third Circuit ruling. His first option is to request the Third Circuit to review its decision en banc where the entire panel of judges sitting on the Third Circuit would conduct oral arguments anew. There is some likelihood that the Third Circuit might agree to meet en banc because the panel’s decision to deny Abu-Jamal’s Batson claim went against that court’s own well-established precedents in granting similar Batson claims in the past. However, the barrier to en banc deliberations is a high one: a majority of the sitting judges must vote to reexamine the case. On the Third Circuit Court, there are 12 judges eligible to vote, but four have already recused themselves from this particular case, meaning five of the remaining eight judges would be needed to go forward en banc. Abu-Jamal has most probably had his one day before the Third Circuit.
Barring a reversal by the Third Circuit, Abu-Jamal’s final option is to appeal the Third Circuit’s ruling to the U.S. Supreme Court, which has on three previous occasions denied to take up his case. This time, though, there is a remote possibility that the high court may take the case up because the Third Circuit’s ruling created new law by placing new restrictions on a defendant’s ability to file a Batson claim.
Bennett: With the media spotlight on the PA Primary Elections, and the major demonstrations supporting Abu-Jamal on April 19, what would you like the world to know about this famous death-row case? How far has the city of Philadelphia come since the days of Police Commissioner and Mayor Frank Rizzo, a notorious racist and public advocate of police brutality?
O'Connor: In a real sense, D.A. Lynn Abraham, just as Frank Rizzo before her, embodies the worst of Philadelphia. Known as “the Queen of Death” for her zeal in seeking the death penalty, she was depicted as the nation’s “deadliest D.A.” in a New York Times Magazine article in 1995. Her personal vendetta against Abu-Jamal equals that of Officer Faulkner’s widow. The day Federal District Court Judge Yohn overturned Abu-Jamal’s death sentence in 2001, Abraham put her antipathy for Abu-Jamal this way: “Today, Mumia Abu-Jamal is what he has always been: a convicted, remorseless, cold-blooded killer.”
The case of Mumia Abu-Jamal represents an enormous miscarriage of justice, representing an extreme example of prosecutorial abuse and judicial bias. What makes getting to the truth about this case so difficult for people, particularly people in Philadelphia, is that the prosecution built its case on perjured testimony with a calculated disregard for what the actual evidence established. The local media bought into the prosecution’s story line early on and has never been able to see this case for what it is: a framing of an innocent and peace loving man.
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
1
