INTERVIEW: Abu-Jamal Attorney Responds to Philly DA
----Is the DA afraid the Third Circuit will grant a new trial?
Hans Bennett interviews Abu-Jamal attorney Robert R. Bryan
As reported in two recent Associated Press articles (April 6 and April 16), the Philadelphia District Attorney has filed a motion asking the entire 3rd U.S. Circuit Court of Appeals to recuse itself from black death-row journalist Mumia Abu-Jamal’s case on grounds that Gov. Ed Rendell, whose wife serves on the court, was district attorney during Abu-Jamal's 1982 trial. The DA argues that if the court rules unfavorably for Abu-Jamal, the defendant could then argue that the ruling was a result of bias from the court, and as the Associated Press wrote, the DA allegedly “wants to leave Abu-Jamal no grounds for any future appeal.”
Assistant District Attorney Hugh J. Burns Jr. wrote in his motion that since “Mr. Rendell was the elected district attorney at the time in question, and so would have been responsible for the supposed 'routine' racially discriminatory practices of Philadelphia prosecutors, Abu-Jamal's accusations necessarily implicate Mr. Rendell personally,"
This request followed the March 22 announcement that Abu-Jamal would have oral arguments in
Abu-Jamal’s attorney, Robert R, Bryan, strongly opposed this move by the District Attorney and filed his response with the court on April 13.
In this interview (conducted on April 16),
Mumia Abu-Jamal first began writing Mr. Bryan in 1986 and in 1991 formally asked him to take his case. The attorney had to decline at that time due to a full schedule of other capital case commitments. In 2003 Mr. Bryan was again approached, and finally agreed to become lead counsel for Mr. Abu-Jamal. He can be contacted via email:
Hans Bennett: Last week, you filed a response to the DA's request to have the 3rd Circuit Court recuse itself? What's this all about?
Mumia has been locked up for over a quarter of a century and on death row for 24. This day for oral arguments has been a long time coming and we do not want justice delayed. That is the bottom line. Also, I feel that this court can be fair. The grounds presented by the DA for disqualification of every judge are baseless and absurd.
I have been doing death penalty work for three decades and this is a novel approach. Of course, in some cases a judge might not be fair and must be disqualified. An example would be when I reopened in
Recusal is statutorily required where a judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed facts, or where there is the appearance of impropriety. However, I do not see those conditions in the case of Mumia Abu-Jamal, where the DA wants to disqualify not just one judge, but rather the entire court.
Bennett: Has the three-judge panel even been selected yet?
Bennett: In December, 2005, the U.S. Court of Appeals shocked many by agreeing to consider two claims not “certified for appeal” by Judge Yohn in 2001. Do you think the DA is threatened by the 3rd Circuit because they may fairly consider the issues and grant your client a new trial?
A word of caution. Being in the Third Circuit certainly does not guarantee a favorable outcome. What Mumia and I want is that his case be fairly heard and adjudged. If that occurs then we have a good chance of being granted a new trial, since the constitutional violations are so egregious. Racism and unfairness are threads that have run through this case since the beginning.
Bennett: In 2003 a state court ruled against considering court stenographer Terry Maurer-Carter's affidavit. Since this time, have you been able to include her affidavit in the current federal appeal, despite the state ruling?
Bennett: You have included her statement in your current 3rd Circuit appeal, in particular regarding the fourth issue being considered: Judge Sabo's unfairness at the 1995 PCRA evidentiary hearings.
Aside from the numerous violations of my client's constitutional rights detailed in our briefs, we also have this evidence that Judge Sabo said he was going to help the prosecution kill my client, referring to him in the most racist and despicable manner imaginable.
Sabo's “fry the nigger” comment is interrelated with what we are arguing on May 17, but it is not the sole basis of the argument that Judge Sabo was unfair at the 1995 hearing. But it is now part of it and we put it in because it was raised shortly following discovery, and was presented to the U.S. District Court. So I feel it is legitimately there before the Court of Appeals.
As you know, I have litigated numerous death penalty cases around the country for three decades. Back when I was trying many cases in the South, I went before some very racist judges. One even jailed me three days for contempt of court for challenging his racism and bias. Incidentally, my client was cleared—acquitted of murder and all related charges. With all the racism I have witnessed, never have I been before someone who was so arrogant about his or her racism as to just openly talk about it. Mumia’s case occurred not in the South, but in
Bennett: It's remarkable that Judge Pamela Dembe ruled in 2001 that even if Maurer-Carter was correct, it simply does not matter. She said that since it “was a jury trial, as long as the presiding judge's rulings were legally correct, claims as to what might have motivated or animated those rulings are not relevant.”
It is interesting that Ms. Maurer-Carter’s husband was a police officer and she an official court stenographer who has received awards for the excellence for her court-reporting work. She is just a normal personal, not political, but what Ms. Maurer-Carter overheard really bothered her. I have great respect for her, that she had the courage to come forward with this information. Ms. Maurer-Carter could have remained silent and stayed out of this, and she and her family would certainly feel safer at night.
Bennett: Do you have an estimate of you how long it will take for the 3rd Circuit Court to make the ruling on a new trial?
Bennett: What rulings could the court make?
The issues in this case are of great constitutional importance. In additional to the work by associate counsel Professor Judith L. Ritter and me, there has been support from highly respected legal organizations. The NAACP Legal Defense Fund has written a friend of the court brief on the “racism-in-jury-selection” issue. There was also a brief filed by the National Lawyers Guild, which has been joined by the National Conference of Black Lawyers, International Association of Democratic Lawyers, Charles Hamilton Houston Institute of Race and Justice at
Bennett: What can supporters around the world do to best aid your battle in the courts?
That being said, I consider it very important that people's voices are heard in many ways, like peacefully demonstrating, writing letters to newspaper editors, op-ed pieces, news articles. It is really like what you, Hans, are doing: just getting the word out publicly about the injustices that have occurred in this case—letting the facts speak for themselves. That is what people can do. Of course we need financial support for the legal effort, and there is a fund strictly for the legal defense, the Committee To Save Mumia Abu-Jamal (see below).
The big thing is that that people's voices are heard. I was in
When arrested Mumia was a prominent journalist who was known as the Voice of the Voiceless, because he spoke out against governmental abuses and corruption. The authorities thought when they prosecuted and put him on death row, they would silence him. Ironically he is heard by more people today through radio and print than he was when free. Mumia does not write about himself, but rather about big issues like women's rights, racism, wrongs committed by the
The Philadelphia District Attorney’s goal is to kill Mumia, to see him put him in the death chamber, strapped down, and murdered in the name of the law. The hope of the state is to silence Mumia once and for all.
We all need to understand that the racism and unfairness continues through the present and we are trying to change that.
Bennett: Anything else to add?
Bennett: How long have you and Mumia know each other?
Mumia has reminded me that what we are all doing is far bigger that just his case. It relates to everyone on death row, and is about people everywhere who are unfairly treated, political prisoners around the globe. We need to bear in mind that a victory for Mumia Abu-Jamal will help other people. That is Mumia's concern. He hopes that what we are doing in his case will help other death row inmates, and put a spotlight on the things wrong with legal systems everywhere. The racism needs to be exposed, brought out to the light of day, and changed. We are about making change for a lot of people.
To contribute to the legal defense of Mumia, check should be made payable to the “National Lawyers Guild Foundation.” The NLG Foundation is a tax-exempt, nonprofit charitable organization under
The four issues being considered are:
#1. Whether the penalty phase of Mumia's trial violated the legal precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling. This issue was grounds for Yohn’s overturning the death sentence in 2001 and is now being appealed by the DA. Yohn ruled that sentencing forms used by jurors and Judge Sabo's instructions to the jury were confusing. Subsequently, jurors mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to be considered as weighing against a death sentence.
#2. “Certified for appeal” by Yohn in 2001, the Batson claim, addresses the prosecution's use of peremptory challenges to exclude Blacks from Mumia's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a defendant deserves a new trial if it can be proved that jurors were excluded on the grounds of race.
At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory challenges to remove black jurors that were otherwise acceptable. While
#3. The legality of McGill's statement to the jury minimizing the seriousness of a verdict of guilt: “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.”
In 1986 the Pennsylvania Supreme Court ruled against McGill in another case (Commonwealth v. Baker) on the same grounds. When Mumia addressed this same issue in his 1989 appeal with the State Supreme Court, the court reversed its decision on the legality of such a statement—ruling against the claim for a mistrial.
Incredibly, just one year later, in the very next case involving this issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored the precedent. However, this would not affect the ruling against Mumia, because the court ruled that this precedent would only apply in “future trials.”
#4. The fairness of Mumia's 1995-97 PCRA hearings when the retired, 74-year-old Judge Sabo was called back specifically for the hearing. Besides the obvious unfairness of recalling the exact same judge to rule on his fairness in the original 1982 trial, his actual PCRA bias has been extensively documented.
During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that the “behavior of the judge…gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case.” Concluding the PCRA hearing, Sabo rejected all evidence and every witness presented by the defense as not being credible. Therefore, Sabo upheld all of the facts and procedures of the original trial as being correct.
For more information, visit mumia.org (
For the latest on Abu-Jamal from the independent media, check out Bennett’s new “Voice of the Voiceless” series on Abu-Jamal being published in the months leading up to the oral arguments at: http://hbjournalist1.googlepages.com/ms
Hans Bennett (insubordination.blogspot.com) is a Philadelphia-based photojournalist who has been documenting the movement to free Mumia and all political prisoners for more than 5 years
All work by photojournalist Hans Bennett