Socialist Viewpoint

June 30, 2002. We are still waiting for a response in the US Court of Appeals to both sides’ appeals of federal Judge William Yohn’s December 2001 ruling, in which he set aside Mumia’s death sentence—though he gave the state of Pennsylvania the option of conducting a new hearing at which Mumia could be sentenced to death again. If that hearing is not held, and Yohn’s decision is upheld, then Mumia would serve life in prison without parole.

Mumia’s status is unchanged given these appeals. He remains on Death Row, locked up 23 hours a day as before, with Plexiglas barriers between him and all visitors and all the other deadly restrictions. The Court of Appeals can respond in numerous ways to the appeals by both sides, ranging from overturning Yohn’s ruling and re-imposing the original death sentence, to upholding Yohn and leaving the question of a new sentencing hearing up to the state, to setting aside the guilty verdict in Mumia’s original trial.

Mumia Abu-Jamal’s current attorneys filed for a reopening of the Post Conviction Relief Appeal (PCRA) hearings—held initially in 1995-96. They claim that Mumia’s former attorneys failed to represent him properly by never arguing that he was innocent and never presenting key evidence of his innocence. They filed this petition both in Pennsylvania Supreme Court and in the Third Circuit of the U.S. Court of Appeals. On June 11, the Third Circuit stated that it would take no action in the case pending the Pennsylvania Supreme Court’s final decision. This appears to be primarily a procedural ruling, without major significance, but points to a potentially long process.

Meanwhile, a very important challenge is being waged in Pennsylvania State Supreme Court by Mumia’s attorneys to expose the true story of systematic bias in excluding African-Americans from his jury. The attorneys have asked to take sworn testimony from Supreme Court Justice Ronald Castille, about whom there have been recurrent charges of conflict of interest since at least 1987. And now there are additional charges, flowing from a ruling by the U.S. Supreme Court (in the 1986 “Batson” case), which states that the exclusion of jurors based on race provides grounds to reverse a conviction.

The Pennsylvania Supreme Court based its rejection of Mumia’s motion to depose Justice Castille on three of its prior decisions. But a closer examination of all three actually supports the legitimacy of deposing Castille. In one (Commonwealth v Basemore, 2000)—the only decision in which Castille did not participate—the court actually granted a new hearing.

Here’s the story: Before he was elected to the Supreme Court, Castille was a District Attorney in the County of Philadelphia. During an initial appeal of Mumia’s original conviction, Castille, as District Attorney, signed the papers filed for the prosecution, arguing against Mumia’s appeal. Clearly this raises a serious question about his ability to rule impartially regarding Mumia’s case whenever it comes up before the State Supreme Court.

In 1996, when Mumia’s appeal of Albert Sabo’s denial of post-conviction relief reached the Court, Mumia’s attorneys asked Castille to recuse himself—that is, recognize that he had a conflict of interest and choose not to participate in the deliberations or in the decision. Castille—the only one who has the power to take such action—rejected this request. Now, new and more damning evidence of Castille’s conflict of interest and his active participation in the dissemination of a videotape aimed at teaching Assistant DA’s in Philadelphia how to exclude African-Americans from juries, has emerged.

One of the key issues in all of Mumia’s legal proceedings has been the racist character of the jury selection at his original trial. In a city that is overwhelmingly Black; only two Blacks were seated on his jury. Judge Sabo consistently allowed the prosecution to challenge and remove Blacks during the jury-selection process. In his ruling last December on Mumia’s federal Habeas Corpus petition, Federal District Court Judge William Yohn identified the question of racist jury selection and the instructions given to the jury as the two issues that he (that is, Judge Yohn) considered worthy of review by the Federal Court of Appeals. (Mumia’s attorneys are asking the higher court to review many more of the injustices on which Mumia’s conviction was based.)

The notorious training video

Since 1998, one piece of evidence, which Mumia has been trying to enter into the record, is a video prepared by one Jack MacMahon. It is a tape, used to train assistant District Attorneys in Philadelphia on how to exclude Black jurors without making it obvious that the exclusion was racial. This tape was produced in 1986, the same year that the U.S. Supreme Court issued the ruling (“Batson”) that racial discrimination in jury selection was grounds for overturning a conviction.

This is precisely what the MacMahon tape does: It demonstrates a pattern of racial discrimination by Philadelphia prosecutors, which adds to the overwhelming statistical evidence that Black jurors were consciously excluded during Mumia’s 1982 trial. The videotape is clear evidence of the maintenance of the traditional racist practices of the Philadelphia DA’s office, while camouflaging those practices in order to circumvent the protections newly offered to defendants by the Batson decision. In Mumia’s case the MacMahon tape demonstrates that a conscious plan lay behind the statistics that proved exclusion of Black jurors.

The Pennsylvania Supreme Court denied Mumia’s request to allow this videotape into the record. Justice Castille participated in that denial. The court justified its rejection of Mumia’s request on the grounds that the tape could not be shown to reflect general practices of the Philadelphia DA’s office, since it was only a presentation by a single individual, MacMahon. It now comes to light, however, that the tape has the official insignia of the city of Philadelphia on it—along with the name of Ronald Castille as District Attorney!

A conflict of interests at the highest level

And so we have evidence of still another conflict of interest by Justice Castille. Not only did he participate in a court decision on a matter in which he had been personally involved, he actually knew for certain that the basis cited by the court for denying Mumia’s motion was completely false. The videotape was an official document of the District Attorneys office, not some random production by a lone individual. And Castille’s failure to reveal his personal participation in the production and dissemination of this videotape, when the issue came up before the Supreme Court where he was sitting as a judge, constitutes a serious violation of professional ethics.

The Supreme Court as a whole rejected Mumia’s motion to take a deposition on these questions from Justice Castille. But Mumia’s attorneys are attempting to reargue the point before the court, partly based on the fact that Judge Castille should not have participated in that decision.

These issues of systematic racial bias in jury selection, and the court exchanges surrounding it, are potentially explosive if they become widely known. The facts reveal in a particularly stark way the racist, frame-up nature of the original prosecution and death-sentence imposed on Mumia. The issue of racial bias was also recently highlighted when Terri Maurer-Carter, a court stenographer during the time of Mumia’s original trial, stated in an affidavit that she overhead trial Judge Albert Sabo say, referring to Mumia: “I’m going to help them fry the nigger.”

Implications For Activists

Activists should campaign to have Castille recuse himself, and force the Pennsylvania Supreme Court to grant Mumia’s motion to depose Castille on the use of the racist training tape, thus entering the video into the record. This could make a difference, because racial bias in jury selection constitutes a basis for overturning Mumia’s conviction, and could then be reviewed by the federal courts. Given the current vulnerability of the courts on this issue, activists could pressure various officials and the courts themselves to address the racial bias in the selection of Mumia’s jury.

We must point to the contradiction between Federal Judge Yohn’s ruling that Mumia may appeal on the issue of racial bias in the selection of his jury, and the Castille/Pennsylvania Supreme Court suppressing the investigation of this issue.

We must popularize the fact that in the case of Basemore, the use of the MacMahon videotape was considered a “highly flagrant violation of the U.S. Constitution.” Basemore was granted the right to appeal. There was (unlike in Mumia’s case) considerable evidence of his guilt. He nonetheless won the right to an evidentiary hearing on a claim he had not raised at all before—something Mumia has been fighting for in the federal courts.

We need to circulate and get signatures on the petition to current Pennsylvania governor Schweiker. (For information contact the NY Free Mumia Coalition, see below.)

We must force the candidates in the present election for Pennsylvania Governor—and particularly the likely winner, Democratic Party leader, Ed Rendell, who was the DA for Philadelphia during the early ’80s when Mumia was prosecuted, found guilty, and sentenced to death—to take responsibility for “their” Supreme Court’s “irregularities.” Rendell is campaigning on a pro-death penalty platform and specifically in support of Mumia’s execution, with a totally fabricated version of what happened on the night of December 9th, 1981. Rendell and Castille share a long history of involvement in the effort to frame-up and murder Mumia Abu-Jamal.

June 30, 2002

—This article is a slightly shortened version of information circulated by the New York Free Mumia Abu-Jamal Coalition: P.O. Box 650, New York, NY 10009; 212-330-8029