Dave Lindorff

is an investigative journalist

Largely missing from coverage of Thursday's Third Circuit rejection of Mumia Abu-Jamal's murder-conviction appeal was a 41-page dissent by Judge Thomas Ambro, one of the panel's three judges.

In a stinging dissent on the rejection of Abu-Jamal's so-called Batson claim that his jury had been unconstitutionally purged of blacks, Ambro said his two colleagues, Chief Judge Anthony Scirica and Judge Robert Cowan, had ignored precedents from the U.S. Court of Appeals for the Third Circuit and arbitrarily set a higher bar for this particular appellant.

Ambro writes, "Our court has previously reached the merits of Batson claims . . . where the petitioner did not make a timely objection during jury selection . . . and I see no reason why we should not afford Abu-Jamal the courtesy of our precedents."

In fact, evidence of racial bias in jury selection in this case is hard to deny. Not only did Prosecutor Joseph McGill use 10 of his peremptory challenges to remove black jurors who had said they could vote out a death sentence (compared with only five whites), and not only did he ask specifically different race-based questions of some of those jurors, but there is also a documented history of racial jury purging by the Philadelphia District Attorney's Office, and by prosecutor McGill, during the early 1980s. Research by academic experts and the Federal Defenders Office in Philadelphia shows that between 1977 and 1986, under then-District Attorney Ed Rendell, local prosecutors struck qualified blacks from juries in capital cases 58 percent of the time, compared with 22 percent of the time for whites. During the same period, McGill struck qualified black jurors 74 percent of the time, compared with 25 percent for whites.

What obviously upset Ambro is that Scirica and Cowan are demonstrating another disturbing example of what local journalist Linn Washington has dubbed the "Mumia Exception."

On several occasions during the former Black Panther and local journalist's 26-year legal odyssey, this state's courts have altered the rules just to keep Abu-Jamal on course for death. In 1986, the Pennsylvania Supreme Court overturned a death sentence where the same Joseph McGill had made an improper closing statement to jurors in a murder trial. Declaring that McGill's advice to the jury that their verdict would not be final because of appeals had "minimize[ed] the jury's sense of responsibility," the court ordered a new trial. Three years later in 1989, despite this precedent and presented with an identical statement by McGill to Abu-Jamal's jury, the same court inexplicably reversed itself, leaving Abu-Jamal's conviction standing. One year later, the court reversed itself again, barring such language by prosecutors "in all future trials," but not making the decision retroactive for Abu-Jamal.

"Allocution" - the right of a defendant to make a statement to jurors at sentencing without challenge - offers another example of the special handling accorded Abu-Jamal's case. Just a month before considering Abu-Jamal's appeal in March 1989, the Pennsylvania Supreme Court ruled the right of allocution to be of "ancient origin." The court said failure to permit a defendant to plead for mercy demanded reversal of sentence. But when Abu-Jamal came before the court, saying that the judge had allowed McGill to question Abu-Jamal after his allocution statement, the same court ruled that the "right of allocution does not exist in the penalty phase of capital-murder prosecution."

This judicial flip-flopping led Amnesty International in its 2001 report on Abu-Jamal's case to conclude that Pennsylvania's highest court simply rewrites its rules "to apply to one case only: that of Mumia Abu-Jamal."

A "Mumia Exception" has been established.

And now this stain on Pennsylvania jurisprudence has migrated to the federal court system at the Third Circuit.

Dave Lindorff, based in Philadelphia, is author

of "Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal." (Common Courage Press, 2003). His work is available at www.thiscantbehappening.net. E-mail him at dlindorff@yahoo.com.