The following is a letter (12/6/05) from Robert Bryan (lead counsel for Mumia Abu-Jamal) which initially announced the court's 'legal order' to hear certain claims presented by Mumia's defense. If won, these claims can possibly win Mumia a new trial, or hearing. If lost, Mumia will be in serious danger. Below the letter are articles and information expanding on the info layed out in Bryan's letter, and the implications of the 'legal order'. For recent legal updates, visit the homepage at freemumia.com

ORAL ARGUMENTS CONCERNING THESE CLAIMS WERE HEARD BY THE THURD CIRCUIT COURT OF APPEALS ON MAY 17 IN PHILLY. A DECISION IS EXPECTED SOON. CLICK HERE FOR INFORMATION

12/6/05

Dear Friends and Supporters:

Today the United States Court of Appeals for the Third Circuit issued the most important decision affecting my client, Mumia Abu-Jamal, since the lower federal court ruling in December 2001.  An order was issued this morning that the court will accept for review the following issues, all of which are of enormous constitutional significance and go to the very essence of Mumia's right to a fair trial due process of law, and equal protection of the law under the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution:

• Claim 14 :  Whether appellant was denied his constitutional rights due to the prosecution's trial summation.
• Claim 16 :  Whether the Commonwealth's use of peremptory challenges at trial violated appellant's constitutional rights under Batson v. Kentucky , 476 U.S. 79 (1986).
• Claim 29 : Whether appellant was denied due process during post-conviction proceedings as a result of alleged judicial bias.

Claim 16 concerns the prosecutorial use of racism in jury selection.  The record establishes beyond question that racism is a major thread that has run through this case since Mumia's 1981 arrest, and continues to today.  Claim 14 relates to the guilt phase.  It includes the prosecutor's argument that if convicted Mumia would have "appeal after appeal."  That comment effectively lessened the burden of the jurors, and turned the concept of reasonable doubt and presumption of innocence on its head. Claim 29 is about the bias and incredible racism of Judge Albert Sabo, the trial judge.  Unfortunately, it is limited to his conduct at the 1995 evidentiary (PCRA) hearing, rather than his monstrous behavior at trial.  This restriction is because all of the prior attorneys mistakenly did not attack Sabo's misconduct at trial, an unfortunate oversight and mistake

The court has also issued a briefing schedule.  The case is now on the fast track, as I have been predicting.  The opening briefs are due to be filed by January 17, 2006.

Please post this e-mail and the attached Order on your web sites, and circulate it.

Today we achieved a great victory in the campaign to win a new trial and the eventual freedom of Mumia.

Your support, and activism, is badly needed and appreciated.

VIEW THE LEGAL ORDER HERE

With best wishes,

Robert R. Bryan
=============
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco , California 94123

Lead counsel for Mumia Abu-Jamal

PS the order also grants the Prosecutions request to hear claim 25,
which was the claim which Judge Yohn used to suspend Mumia's death
sentence. Obviously the prosecution is seeking the reimposition of that
sentence.

VIEW THE LEGAL ORDER HERE

VIEW THE LEGAL ORDER HERE

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David Lindorff Article

Big Break in Mumia Abu-Jamal Case

12/08 | One of the nation's oldest and most famous death penalty cases now on a fast track.

In a startling new development, the Third Circuit Court of Appeals in Philadelphia has agreed to hear arguments on three claims by Pennsylvania death-row prisoner Mumia Abu-Jamal that his 1982 trial and state appeal were tainted by constitutional violations.

Any one of those three claims, if upheld by the three-judge panel, could lead to a new trial for one of America's most famous and long-standing death row prisoners, a Philadelphia-based journalist and former Black Panther activist who was convicted of the 1981 shooting murder of a white Philadelphia police officer.

The decision came as a surprise because the appellate court was only required to consider an appeal from the defense on a single guilt-phase issue--the claim that the prosecution had illegally removed qualified jurors from the case on the basis of race. That claim, while rejected in 2001 by Federal District Court Judge William Yohn, had been certified by the judge for appeal to the Third Circuit. Appellate courts do not have to even accept arguments from defense attorneys on claims that have not been certified for appeal by a lower court, so the fact that the judges agreed to accept the other two claims is a major victory for the defense.

The two additional claims are that:

1. The prosecutor, Joe McGill, improperly sought to weaken any sense of
responsibility and accountability among jurors considering the case, and undermined the constitutional requirement of "beyond a reasonable doubt," when he told them in his final summation that they need not worry overmuch about voting for conviction since Abu-Jamal would have "appeal after appeal," and

2. The judge in the case, the late Albert Sabo, who also sat at the 1995 Post-
Conviction Relief Act hearing, where determinations of fact, and crucial new evidence, were presented (or where the defense attempted, unsuccessfully to present it), was biased against the defense.

Abu-Jamal's claim of racial bias in jury selection is well documented. In his habeas appeal to the Federal District Court, his then attorneys, Leonard Weinglass and Daniel Williams, submitted four academic studies of jury selection practices by both the Philadelphia district attorney's office and of assistant DA McGill, himself. Both demonstrated clearly that the DA's office under then DA Ed Rendell, and McGill in the murder trials he prosecuted, rejected roughly three out of four potential black jurors who had already agreed that they could vote for capital punishment. This was a rate of peremptory rejection of qualified jurors three times higher than for potential white jurors, and is prima facie evidence of illegal racial bias. But Judge Yohn, in a serious judicial error of both fact and judgment, rejected all that evidence. As I exposed in my book on the case (“Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal,” Common Courage Press, 2003), Yohn had confused the studies, and incorrectly assumed that they did not cover the time period of Jamal's trial, when in fact the studies even included Jamal's trial in their data sets. If the appellate court looks at that same evidence, the judges would be hard-pressed to find it fair, in a city 44 percent black, that the jury selection process in Abu-Jamal's trial resulted in his having just two black jurors ruling on his guilt and sentence.

Equally compelling is the claim that McGill's summation was unconstitutional. As I wrote in Killing Time:

Right from the outset, McGill tried to convince the jury that, far from following the dictum "innocent until proven guilty," and making sure that they didn't convict an innocent man, they should be careful not to free a suspect who might well be guilty. Such an argument risked providing grounds for a successful overturning of the verdict. Appellate courts, including the Supreme Court of Pennsylvania (in a case, ironically, involving McGill saying the same words), had already held that telling a jury in a summation that their verdict would not be final was grounds for a mistrial. In defiance of that ruling, McGill probably calculated that the politics of this case--a black radical convicted of killing a white police officer--would make such a reversal unlikely. The calculation would prove to be correct, as we will see later. He went ahead and tried the tactic again, telling them, "…If your decision of course were to acquit, to allow the Defendant to walk out, that is fine. There is nothing I can do and there is nothing that the judge or anyone could do that would affect that in any way. 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."

It could still be that my political analysis back then will prove correct, and that after hearing the defense's argument on the claim, the Third Circuit judges will reject it, but they if they did, they'd be going against earlier precedents where such statements have been made by prosecutors in the same circuit.

Finally on the judicial bias claim, there are so many examples of Sabo's bias, particularly at the PCRA hearing, where he was the one making the rulings regarding the validity of evidence, and the admission of new evidence, that the appellate judges' decision in favor of the defense claim of bias should be clear. Again, though, there is bound to be enormous political pressure brought on the court not to support the claim.

After a lengthy delay, the Third Circuit has put Abu-Jamal's appeal on a "fast track," setting January 17 as the date for the defense to file its brief on the three claims. At that point, according to a lawyer for the Third Circuit court, the DA would have 30 days to respond and to file its own brief on the sentencing claim, after which the defense would have another 30 days to respond. The DA would have a final 14 days to file a final brief responding to the defense's last arguments to the court. At that point, the Appeals Court judges (who do not get identified publicly until 10 days before a hearing on the case, or a decision), would decide whether to hold a public hearing on the case, or simply decide based upon the submitted briefs.

There are a number of possible outcomes in the Third Circuit. The worst-case scenario for Abu-Jamal would be for the appellate court to reverse Judge Yohn's ruling on the death sentence, and to reject all the guilt-phase claims, which would put him back on track for execution.

On the guilt-phase claims, there are a number of things that could happen. If the jury- selection race-bias claim, called a Batson claim, is upheld, the court could order a new trial or could, as is more likely given Yohn's errors, send the case back to Judge Yohn for reconsideration based upon the evidence he had wrongly dismissed as irrelevant. Yohn could then order a new trial if he found evidence of race-based selection of jurors.

The claim of prosecutorial error in the summation to the jury could also lead to an order for a new trial, though again another option would be to send the matter back to Yohn's court for a rehearing.

Finally, the judicial bias claim, because it involved the PCRA hearing in 1995, not the 1982 trial itself, might not lead to a new trial but rather to a new or reopened state court PCRA hearing. There the defense would likely have the opportunity to bring back key trial witnesses as well as call new witnesses. That, in turn, would give the defense new avenues of appeal, in both state and federal courts, and possibly another chance for a new trial.

Robert Bryan, who took over Abu-Jamal's case as lead attorney over a year ago after several years of chaos and divisiveness in his defense following his firing of Weinglass and Williams, and his hiring of two death-penalty novices, Marlene Kamish and Elliott Grossman, was clearly elated about Tuesday's Third Circuit decision to hear arguments on three claims. He said, "Today we achieved a great victory in the campaign to win a new trial and the eventual freedom of Mumia."

Bryan said all three claims "are of enormous constitutional significance and go to the very essence of Mumia's right to a fair trial, due process of law, and equal protection of the law under the Fifth, Sixth and Fourteenth Amendments to the Constitution."

For the rest of this column and other stories by Lindorff, please go (at no charge) to This Can't Be Happening! .

By Dave Lindorff dlindorff@yahoo.com http://www.thiscantbehappening.net

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Article by Jeff Mackler on latest Mumia development

In a decision that will likely stun the Pennsylvania legal establishment that has been trying to railroad innocent death row political prisoner and award winning journalist, Mumia Abu-Jamal to the execution chambers for 24 years, the U.S. Court of Appeals of the Third Circuit, reversed two critical Federal District Court rulings.

The Third Circuit's December 6 rulings granted "certificates of appealabilty" to Jamal to challenge alleged race and judicial bias in the 1995 Post Conviction Relief Action proceedings overseen by Mumia's original 1982 trial court "hanging" judge, Albert Sabo. Sabo went to extreme lengths to keep evidence of innocence out of the court record.

The court also allowed Mumia to challenge the trial summation remarks of the state's lead prosecutor, Joseph McGill, who told the jury, " 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."

Mumia's lead attorney, Robert R. Bryan, told this writer that McGill's summation had the effect of qualitatively lowering the historic burden of proof regarding reasonable doubt and presumption of innocence. Similar remarks by Pennsylvania prosecutors have resulted in new trials in other cases.

The Third Circuit's decision was all the more remarkable in that under the provisions of the reactionary 1996 Anti-terrorism and Effective Death Penalty Act, the court had no obligation to even consider defense challenges to the Federal District Court's denial of certificates of appealability.

The court called for an initial January 17 defense brief on these two issues as well as on the single issue that had previously been certified for appeal, that is, the defense insistence that the exclusion of 11 of 14 Black jurors constituted an unconstitutional violation of the Supreme Court ruling on this issue in the famous case of Batson v. Kentucky.

The Third Circuit's decision was not all in favor of Mumia. It denied certificates of appealability on a number of other important points raised by the defense including the right to self-representation and it allowed the State of Pennsylvania to challenge a Federal District Court decision that had ordered the State to hold a new sentencing hearing based on constitutionally flawed jury instructions issued by Judge Sabo. While legal analysts doubt that Pennsylvania prosecutors will be successful in pursuing this "victory" for reaction, if they are, Mumia may be once again be subject to an order for his execution by lethal injection.

"The Third Circuit decision opens the door to a new trial and freedom for my client,"said Bryan. "The case is now on the fast track," he added. The next several months will see defense and prosecution attorneys meeting stringent deadlines for a series of briefs and counter briefs. The 10-person court will then issue a decision or set a date for a hearing and oral arguments.

There are several possible outcomes, from the worst, but least expected scenario where Sabo's unconstitutional sentencing instructions are upheld and Mumia faces execution, to a decision of Third Circuit to either order a new trial or to remand the case to the Federal District Court to re-hear the issues where it had previously ruled without regard to Mumia's constitutional rights.

While Mumia has won yet another victory on the road toward his freedom, the powers that be are far from conceding any errors and remain intent on his execution. Mumia's freedom will be a product of both his legal efforts and a mass political movement exerting its will and making the price of his execution and continued incarceration to high to pay. In Philadelphia contact: International Concerned Family and Friends of Mumia Abu-Jamal at 215-476-8812. In San Francisco contact: The Mobilization to Free Mumia Abu-Jamal at 415-255-1080.

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Legal Addendum from the Free Mumia Abu-Jamal Coalition (NYC)

LATE-BREAKING NEWS!
A Legal Opening for Mumia

On December 6th, 2005the Third Circuit Court of Appeals agreed to expand the issues of Mumia's appeal in the federal courts.

The Court also agreed to consider prosecutor Joseph McGill's improper closing argument to the jury during the guilt phase of Mumia's trial; namely, that Mumia would have `appeal after appeal after appeal'. By arguing this, McGill effectively told the jurors that their decision, which could also mean life or death, didn't mean
much. McGill's statement also effectively turned the constitutional presumption of innocence upside down.

The Third Circuit already had before it the issue of the racist nature of jury selection at Mumia's trial. It agreed to consider this as well.

In addition, the Court agreed to consider Sabo's racism at Mumia's 1995-7 Post Conviction Relief Act hearings, but not at the trial itself where Sabo has been quoted in a sworn statement as saying that he was planning to help the prosecution `fry the nigger'.

On the other side the Third Circuit also agreed to hear the state's appeal of Federal District Judge William Yohn, Jr.'s overturning of Mumia's death sentence in 2001.

While the order by the Third Circuit is an important legal opening, we should note well that Mumia would never have gotten this far--indeed, he probably would be dead--if not for the enormous pressure put on the authorities by millions of people around the world.

December 9th, 2005

Power to the People!
Free Mumia Abu-Jamal and All Political Prisoners!
Abolish the Death Penalty!

Free Mumia Abu-Jamal Coalition (NYC)
P.O. Box 16 Colllege Station
New York, N.Y. 10030
212 330-8029
www.freemumia.com