By Christina Swarns

In the 1982 trial of Mumia Abu-Jamal, his prosecutor used a disproportionate number of his peremptory challenges against African Americans, excluding 10 of 14 blacks, but only 5 of 25 whites, from the pool of potential jurors.

In July 1982, Mumia Abu-Jamal was convicted of murdering a Philadelphia police officer after a racially-charged trial.  But his conviction was biased and unfair.

On March 5, 2009, LDF filed a “friend of the court” brief  asking the United States Supreme Court to review the jury selection process in the controversial 1982 trial of Mumia Abu-Jamal. This brief urges the Supreme Court to enforce the existing laws that require courts to promptly investigate “inferences” of racial discrimination and ensure that the criminal justice system maintains its own integrity, provides a fair trial for the accused, and protects prospective jurors of color from discrimination.

“It is our hope that the Supreme Court will accept and review Mr. Abu-Jamal’s case to make sure that courts respond promptly and appropriately when confronted with real questions about the existence of racial discrimination in jury selection,” said John Payton, LDF President and Director-Counsel.

Mumia Abu Jamal

Nearly three decades ago, in July of 1982, Mr. Abu-Jamal, a then-journalist, African- American community activist, and former Black Panther Party member was charged, convicted and sentenced to death for the shooting death of a white Philadelphia police officer. Since his conviction, Mr. Abu-Jamal’s controversial case has received enormous national and international attention, sparking debates over his guilt, the death penalty and  the fairness of his trial.

In 2001, after 19 years on death row, a federal court vacated Mr. Abu-Jamal’s death sentence but denied his claim that the prosecutor used his peremptory challenges to exclude African Americans from service on his jury.

LDF has been involved in Mr. Abu-Jamal’s case since 2006, when it lent its legal expertise to the United States Court of Appeals for the Third Circuit as an amicus, or “friend of the court.”  In that pleading, and in each subsequent LDF filing in the case, LDF has maintained that Mr. Abu-Jamal’s right to a fair and unbiased trial was denied.

LDF’s most recent brief to the United States Supreme Court explains that the March 27, 2008 decision by the Third Circuit, stating that the only way to prove an inference of racial discrimination in the exercise of peremptory challenges is by documenting the race of all members of the panel of prospective jurors and the race of all stricken jurors, ignores other very significant indicators of racial discrimination. It flies in the face of the Supreme Court’s 1986 ruling in Batson v. Kentucky, which declared that the Constitution is violated if a prosecutor in a particular case uses his/her peremptory challenges to exclude potential jurors on the basis of race.

There is an abundance of evidence of racial discrimination in Mr. Abu-Jamal’s case.  At his 1982 trial, Mr. Abu-Jamal’s trial prosecutor used a disproportionate number of his peremptory challenges against African Americans: he excluded 10 of 14 blacks, but only 5 of 25 whites, from the pool of potential jurors.  The trial prosecutor also indicated that for an African-American juror to be fair, she or he had to hate Mr. Abu-Jamal.

The conduct of Mr. Abu-Jamal’s trial prosecutor is consistent with that of the entire Philadelphia County District Attorney’s office.  A statistical study of Philadelphia County death penalty cases tried between 1981 and 1997 reveals that prosecutors in that office struck 51% of black jurors, but only 26% of non-black jurors. Additionally, a 1986 videotaped training on jury selection produced by that office explicitly advocates the exclusion of potential African-American jurors.

In that video, a Philadelphia Assistant District Attorney, Jack McMahon, offered tips on how to exclude prospective jurors of color and to conceal such race-conscious jury selection.  Some of his advice to fellow prosecutors included:

• “Avoid selecting older black women when the defendant is a young black man.”
• ”If you get, like, a white teacher teaching in a black school that’s sick of these guys maybe, that may be one you accept.”
• ”In selecting blacks, you don’t want the real educated ones.”

The consistency between the recommendations made in the McMahon video and the findings of the statistical study, and the behavior of Mr. Abu-Jamal’s trial prosecutor indicates that the racist attitude, outlook and practices expressed by McMahon were a reflection of the institutional policies and practices of Philadelphia’s District Attorney’s office. Together, this evidence certainly establishes an “inference” of discrimination, regardless of the absence of evidence documenting the race of each and every member of the jury panel.

LDF has a long-standing concern and litigation record of challenging discrimination in jury selection, one of the most pervasive forms of racial discrimination in the criminal justice system. LDF recently secured jury discrimination victories in Wilson v. Beard in the Third Circuit and Johnson v. California, Miller-El v. Dretke and Miller-El v. Cockrell in the U.S. Supreme Court.

LDF has confidence that if the Supreme Court applies the law as it has been written, Mr. Abu-Jamal will receive the fair hearing to which he is entitled and that racial bias in the selection of his jury will ultimately be proven.

Christina Swarns is Director, Criminal Justice Project, for the NAACP Legal Defense and Educational Fund, Inc.