Myth # 3
Myths About Mumia
Jamal’s supporters claim that prosecutor Joe McGill and Judge Albert Sabo conspired to “racially stack” the jury that convicted Jamal, in violation of his civil rights. Some supporters have gone so far as to claim that there was only one black juror at Jamal’s original trial in 1982; others have said there were none. It is alleged that this “racially stacked” jury disregarded all the evidence and found Jamal guilty simply because he was black.
In his book “Race For Justice”, Leonard Weinglass states, “During the course of the jury selection, the prosecution used eleven of fifteen peremptory challenges to excuse nearly 75 percent of the eligible black jurors.” In his public presentations, Weinglass claims that the sole reason for the dismissal of these prospective jurors was the fact that they were black.
Jamal’s lawyers also argue that his absence from an “in chambers conference,” in which the Judge, the prosecutor, and Jamal’s trial attorney (a black man) discussed and agreed upon the removal of a black juror who had violated sequestration, was a pretext to remove her because of her race.
Though you wouldn’t know it if you spoke to one of Jamal’s supporters, the jury that convicted Mumia Abu-Jamal was not simply thrust upon him. Jamal represented himself throughout the jury selection process, and personally participated in the selection of each and every juror. He used his peremptory challenges (each side gets 20 of these, each of which allows them to reject one potential juror at their discretion) to remove an unknown number of white potential jurors — although, at the time, no one thought to accuse Jamal of rejecting white people because of their race.
It is also of interest that prosecutor Joe McGill — who was supposedly rejecting potential jurors solely because they were black — accepted at least four black people for the jury. Further, Jamal personally used one of his own peremptory challenges to remove one of these black persons from the jury.
It is also known that McGill used ten (out of twenty) challenges to remove black potential jurors. But it is important to note that it is not unlawful to reject black potential jurors, any more than it is unlawful to reject white ones. What is unlawful is to reject a potential juror because of his or her race. Jamal has never offered any proof that McGill did that. On the contrary, the record shows a legitimate reason for McGill to have removed each of the black potential jurors he did:
- Janet Coates (Black) Indicated that she would be biased against police and that she had listened to Jamal on the radio. (N.T. 6/7/82, 129-30)
- Alma Austin (Stipulated to being black at 1995 PCRA hearing.) Expressed strong feelings against the death penalty. (N.T. 6/8/82, 2.51-54)
- Verna Brown (Black) Stated that she had listened to Jamal on the radio. (N.T. 6/8/82, 3.242-245)
- Beverly Green (Race unknown. At the 1995 PCRA hearing Mr. Weinglass stated that he would verify that Ms Green was black, but later removed her from the witness list and withdrew the claim) Hesitant in answering the prosecutor’s questions. (N.T. 6/8/82, 3.242-245)
- Genevieve Gibson (Black) Listened to Jamal on the radio. (N.T. 6/10/82, 4.78)
- Gaitano Ficordimondo (Race unknown) (N.T.6/10/82, 4.96)
- Webster Riddick (Black) Expressed “strong reservations” about the death penalty. (N.T.6/10/82, 4.222-224)
- John Finn (Race unknown) Stated that he was a member of the clergy, and was very hesitant to answer the prosecutor’s questions directly. (N.T. 6/11/82, 5.75-82)
- Carl Lash (Black) Stated that he had formerly been a “prison counselor”. (N.T. 6/11/82, 5.105, 110-111, 113-114)
- Delores Thiemicke (Race Unknown) At age 24, she was unemployed. (N.T. 6/11/82, 5.192-193)
- Gwendolyn Spady (Black) Stated that she had listened to Jamal on the radio. (N.T. 6/15/82, 111-13)
- Mario Bianchi (Race not of record.) Stated he listened to Jamal on the radio and had difficulty understanding the presumption of innocence. (N.T. 6/15/82, 111-113)
- Wayne Williams (Black) Stated that he had listened to Jamal on the radio. (N.T. 6/15/82, 171-173)
- Henry McCoy (Black) Stated that his daughter worked at a radio station with Jamal. (N.T. 6/15/82, 223-225)
- Darlene Sampson (Stipulated that she was black at 1995 PCRA hearing.) Stated that she had listened to Mr. Jamal on the radio, that she had strong feelings against the Death Penalty and that she “could not be fair if the trial was a long one”. (N.T. 6/16/82, 276, 281-291, 293-297)
In Pennsylvania — as in most states that employ Capital Punishment — it is a legal requirement in capital murder cases that any person not willing to consider a death sentence be dismissed from the jury. Several prospective jurors in Jamal’s trial were released from service because they expressed profound disagreement with the use of the Death Penalty and stated that they would not be willing to consider it as an option if they found Jamal to be guilty. Others were dismissed because they listened to Jamal on the radio, or knew someone who knew him personally, or because they were hesitant in answering questions or had difficulty understanding key concepts. There is nothing to suggest that the prosecutor was acting on the basis of anyone’s race.
McGill, who started with 20 peremptory challenges, had five that he never used — yet the first juror selected by McGill and Jamal (Jeannie Dooley, or Dawley) was black. Lacking any real evidence for their claims of racial animus, Jamal’s lawyers now like to talk about statistics. But in the 1982 trial, Jamal — who was representing himself — failed to note the race of each prospective juror so it would become part of the official record. Today, there is no way to tell how many of the people on the panel of prospective jurors was black, or how many of them were rejected by Jamal (thus reducing the number of qualified black potential jurors available to McGill).
Weinglass’ pronouncement that the blacks rejected by McGill made up “75%” of all of the black people in the jury pool is, quite simply, a lie. He made the figure up out of thin air.
The Supreme Court of Pennsylvania has twice reviewed the court record in this case to determine if McGill used his peremptory challenges with discriminatory intent. Both times, it found that he had no such intent.
THE AGREEMENT TO DISMISS
THE WANDERING JUROR
Jamal’s supporters often note that Jamal was absent from an “in chambers” conference in which it was determined that one of the initial jurors should be removed. While it is true that Jamal was not present at this conference, lost in all the pro-Jamal rhetoric is the reason why Jamal was not present. The record shows that had Jamal wanted to present, he could have been. But Jamal had failed to heed the warnings given to him regarding his obstructive actions in the courtroom. He was not present at this “in chambers” conference because he had once again been removed from the courtroom as a result of his own disruptive and contemptuous actions — not because of a plot to have him absent, as Jamal’s supporters allege.
Jamal was represented by his counsel at the conference. Jamal’s attorney — Anthony Jackson, an experienced criminal defense attorney who was hand pick by Jamal and a black man — agreed that, because she had deliberately violated sequestration, Dawley should be removed. This is exactly what would have happened to any juror who violated sequestration. Jackson had a further reason, moreover — he felt that Dawley had been “very belligerent” towards Jamal. The argument of Jamal’s new lawyers — that Dawley was removed simply due to her race — is discredited by Jamal’s own lawyer.
FACTS SUPPORTING OUR REBUTTAL
The jury selection process in Mumia Abu-Jamal’s trial was unlike that of most trials, because Jamal was in control — he was representing himself. At one point Judge Albert Sabo took over the questioning for both sides for a short time, and later agreed to let the parties return to asking the questions if Jackson did the talking. The record verifies that at all times Jamal was making the decisions as to how his peremptory challenges were used.
Though Jamal’s supporters choose not to mention it, the Pennsylvania Supreme Court has twice (1989 and 1998) reviewed the notion that the jury in Jamal’s trial was unfairly stacked with “white” jurors. The Justices of the Supreme Court found this argument to be baseless. Given the record, it’s easy to see why they came reached this conclusion.
THE JURY SELECTION PROCESS
On May 13, 1982, two weeks before the trial began, Mumia Abu-Jamal abruptly chose to remove his hand picked attorney, Anthony Jackson and proceed “pro se” (as his own lawyer). Jamal represented during jury selection.
After three days in which Jamal personally questioned each prospective juror (venierperson), a full third of the entire jury panel was used up, while only one juror was selected. Prosecutor Joe McGill told the Court that he felt the jury selection process was taking an inordinate amount of time. He also noted that several prospective jurors appeared to be frightened by Jamal’s appearance and his manner of questioning them. In fact, one prospective juror, Ruth Swenk, said that Jamal “scares me to death.” (6-8-82 T.R. 2.138)
Jamal’s supporters often point to an article printed in the Philadelphia Inquirer in which it is stated that Jamal was “intent and businesslike” as he questioned perspective jurors. But this argument diverts attention from the real issue raised by McGill, which went to the delay Jamal was causing and the fear being expressed by the potential jurors. McGill moved that Judge Sabo begin questioning prospective jurors for both the prosecution and the defense, as was authorized by the Pennsylvania Rules of Criminal Procedure. McGill noted that this process would accomplish three things: quicken the pace of jury selection, ease the concerns of the prospective jurors, and protect Jamal from being judged by people who had adverse feelings towards him.
McGill: “I was going to make a motion. Judge, my motion is that your Honor take over the voir dire (jury questioning). That will, of course, mean taking over the voir dire for questions from both sides, not just Mr. Jamal’s but also mine. I wouldn’t be able to ask any [questions] either.
The authority your Honor, would be Pennsylvania Rule of Criminal Procedure 1106D, where it says that the Judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination. This is clear authority for Your Honor to do this.
The reasons for this request are twofold: The first reason is that I believe that the speed of the voir dire or should I say the pace of voir dire is extremely and deliberately, very slow. However, either because of Mr. Jamal’s maybe inexperience in asking specifically framed questions or his decision to ask questions, not all I believe to be relevant for the purposes of voir dire, it has caused in the last two days only 20 jurors to be questioned and one to be chose. That means 30 in the first panel, and this will be the third day of panel one. There are 30, more than half, as a matter of fact, 60% remain to be questioned.
I believe, Your Honor, that if the Court would ask the questions, questions that would safeguard the rights of both the Commonwealth and the defendant, this would expedite the matter without in any way infringing upon the rights of the defendant.
The second reason is because of my own experience in past trials. I could say that in reference to what I have observed during the course of this voir dire, it appears to me and it will appear on the record, certainly on the last two witnesses, it appears to me that in many cases throughout the voir dire there is an unsettling effect when the defendant, who is charged with such a heinous crime, if the facts are accepted by the jurors, particularly that of shooting a policeman in the back and then shooting him in the face at close range, it tends to create in the venierperson an unsettling feeling, as a matter of fact in a few jurors outright fear.
Now, when we have a situation where an individual himself is asking questions and creating that type of anxiety, which would be different that the anxiety where another individual, his attorney, would be asking them, referring to a third party in the courtroom, the possibility for answers which are not clear, that are confused or that in fact unfortunately, I believe that these jurors in as much as some of them are fearful, will begin to find reasons that they don’t want to serve. Even though they would be arguably good jurors, because of the emotion that is presented to them, they are not giving clear answers or are too upset to be able to answer correctly. (N.T. 6/9/82, 3.2 -8)
Jamal objected to the court conducting voir dire, walked away from the sidebar conference where the matter was being discussed, and ordered his back-up counsel not to participate in the proceedings. He announced that he wanted a non-attorney, John Africa, to question the proposed jurors on his behalf. The court denied this and indicated that it would review proposed questions for its conduct of the voir dire. He announced that he considered court-conducted voir dire a “damned farce” (N.T. 6/9/82, 3.19-3.45).
The court then conducted the voir dire for both sides, questioning twelve prospective jurors in what was left of the morning session (N.T. 6/9/82, 3.46-3.105). After the luncheon recess, Jamal told Jackson to inform the court that he wanted John Africa to represent him, but that he had agreed to let Jackson ask the defense voir dire questions. Jamal petulantly refused to speak when the court asked him to confirm that he had agreed to proceed in this way. As if addressing a pouting five-year-old, the Judge invited Jamal to object if Jackson had not correctly represented his preference. Jamal did not respond. The court therefore allowed Jackson to ask the remaining voir dire questions (N.T. 6/9/82, 3.106-3.129). But while Jackson gave voice to the questions, Jamal continued to represent himself, and made all of the decisions regarding jury selection.
The resulting jury was one that Jamal personally picked out himself.
DID THE PROSECUTION USE 10 PEREMPTORY
CHALLENGES TO EXCLUDE BLACKS?
In his book “Race for Justice,” Jamal’s lawyer Leonard Weinglass states, “The prosecution used 11 of 15 peremptory challenges to exclude 75 % of the eligible black jurors.” In his public presentations, Weinglass regularly states that prosecutor Joe McGill purposely and knowingly used 11 of the 15 peremptory challenges he exercised in 1982, to “exclude otherwise qualified black [African American] prospective jurors from serving on the jury, simply because they were black.”
This attack on Joe McGill’s moral and ethical standards is also one of the key issues raised on appeal by Mr. Weinglass. This allegation is also blindly repeated by many of Mumia Abu-Jamal’s celebrity supporters, such as Tom Morello (Rage Against the Machine), Mike Farrell (M*A*S*H) and Ed Asner, each of whom regularly speaks out to the media offering allegedly “factual” support for Jamal.
The judges who hear Jamal’s appeals will certainly have the last word on this matter. However, for the benefit of those interested in this case, we have listed the facts as they are shown in the court record.
In 1982, the jury cards filled out by prospective jurors did not require them to disclose their race. One of the responsibilities assumed by Mumia Abu-Jamal as he represented himself, was the task of asking each prospective juror their race and noting it for the record. Judge Sabo actually encouraged Jamal to do so. The record clearly reflects that Jamal chose not to follow Sabo’s advice and failed to note the race of each prospective juror. Therefore, to this day, there is no definite way to tell what the race of each prospective juror was. It is thus easy for Weinglass to level his accusation against the prosecution outside the courtroom; there is simply no way to prove him wrong on this issue. However, inside the courtroom, where accusations must be backed up with fact, Mr. Weinglass has failed to support his myth. His accusation has twice (1989 and 1998) been reviewed by the State Supreme Court, and was dismissed as being without merit.
DID THE PROSECUTION RACIALLY FIX THE JURY?
The two facts that most undermine the defense allegation that the prosecution “racially fixing the jury” with discriminatory intent, is the fact that McGill accepted four African-American jurors and that he still had five (5) unused peremptory challenges when the final jury was seated. Had Joe McGill intended to racially “fix” the jury, as Weinglass suggests, he could have exercised these unused challenges to exclude the three black jurors that were seated, as well as James Burgess — one of at least four black jurors accepted by McGill and peremptorily struck by Jamal. These facts also show that McGill was striking individuals, black or white, for their potential biases, not because of their race.
At the 1982 trial, each side began jury selection with 20 peremptory challenges. By definition, “peremptory challenges” afford both the prosecution and the defense the opportunity to strike any prospective juror without offering a reason to the Court. However, this system leaves open the possibility that either side might use their peremptory challenges to exclude qualified individuals solely because of their ethnicity. In 1986, the U.S. Supreme court established legal precedent forbidding this in Batson vs. Kentucky.
As stated in the 1998 Supreme Court decision (posted on danielfaulkner.com), to support a “Batson” claim the defense must establish that the prosecution chose to “purposefully discriminate” against blacks by excluding them “solely on the basis of race.”
In 1989 and again in 1998, the Pennsylvania Supreme Court found that McGill had no such intent:
“We have examined the prosecution’s questions and comments during voir dire, along with those of the appellant and his counsel, and we find not a trace of support for an inference that the use of peremptories was racially motivated”.
There is no evidence at all to support Weinglass’s claim that the prosecutor struck any black person “solely by virtue of the fact that they were black.”
THE RACIAL MAKE UP OF THE JURY
When evaluating the validity of the racially stacked jury myth, it’s important to understand that at the beginning of the 1982 trial, 3 of the 12 jurors seated were black. In Jamal’s own Federal appeal, he states that four black jurors were accepted by the prosecution (Jamal habeas petition, p. 120), at least one of those black jurors, James Burgess, was struck from service by Mumia Abu-Jamal himself with one of his peremptory challenges. The record shows that the first two jurors accepted by prosecutor McGill were black. In the 1996 case, United States vs. Wills, the 9th Circuit Court of Appeals determined that the prosecution’s willingness to accept minority groups weighed against any claim that it was striking jurors solely for being members of that group.
It remains unknown exactly how many blacks (or members of other racial or ethnic groups) served on the jury. At the outset of the trial, one of the black jurors, Jennie Dawley, violated sequestration to attend to a sick cat. Both the defense and the prosecution agreed to her removal.
Jamal’s supporters appear to argue that the white jurors who voted to convict Jamal did so simply because he is black; and that black jurors (excepting, apparently, those who actually served and heard the evidence) would have voted for acquittal simply because he is black. This argument strikes us as not only absurd, but demeaning to people of both races. The jurors (some of whom were white and some black) heard the evidence, and the evidence compelled them to convict. There is no reason to believe that an equally qualified jury composed of a different mix of races would not have done the same.
THE JENNIE DAWLEY INCIDENT
Leonard Weinglass now asserts that Judge Albert Sabo is a “racist,” because he had earlier made special arrangements for a “white juror” to take a civil service exam, while he failed to display the same flexibility when a “black” juror, Dawley, asked to leave the hotel and attend to her sick cat.
To some, Weinglass’ allegation of racial bias may appear to warrant concern. Yet the transcripts directly contradict this claim. The record shows that in 1995, Sabo noted that a juror (whose race is not of record) was allowed to leave the hotel by prearrangement with the court in order to take a civil service exam that required him to be present. On the other hand, Jennie Dawley simply got up and left without asking permission, even though she acknowledged that her husband was at home and could have seen to her cat. At the 1995 PCRA hearing Judge Sabo responded to Weinglass’ allegation of racism on this ground:
“She didn’t communicate with me Counselor, let’s get that straight. I didn’t know a thing about it until the Court Officer relayed the information to me [after she had already left the hotel].”
N.T. 7/12/95, 26
Assistant District Attorney Hugh Burns also addressed this issue in his 1995 opening statement:
“She [Ms. Dawley] didn’t get the courts permission to go, she simply chose to go. And then the [court] crier reported it to you [Judge] and this is a part of the record-when he [the court crier] told her that she should not leave, she [Ms. Dawley] said, “I don’t care what Judge Sabo or anybody says, I do what I have to do, nobody is going to stop me.”
N.T. 7/12/95, 49
Contrary to what Jamal’s supporters allege, there is no doubt that Jennie Dawley chose to violate sequestration without bothering to inform the Judge or ask permission to leave. Neither the prosecution or the defense wanted a person on the jury who was so clearly unwilling to follow the directions of the court or submit to the requirements of jury service. The record shows that both the prosecution and the defense agreed to Dawley’s removal from the jury, with Anthony Jackson stating, “I thought it was a matter of whose side she ended up on, but she was definitely belligerent.” (N.T. 6/18/82, 2.43) Jackson, not unreasonably, did not want to risk that Dawley might end up on the prosecution side and direct her belligerence against his client.
Jamal’s supporters bitterly complain that, by random selection, the alternate juror selected to replace Ms. Dawley was “white.” Now who’s being racist?
In his writings, Weinglass claims this new juror was biased against Jamal and that he said that he would not be able to fairly judge him. This is a simply untrue. Had he done so, he never would have been accepted as an alternate.
WHY WASN’T JAMAL PRESENT WHEN
JENNIE DAWLEY WAS REMOVED?
The day after Jennie Dawley had left the hotel to attend to her sick cat, and subsequently returned to her hotel room, an “in chambers” conference was held at which Jamal was not present. It was during this meeting that the judge, the prosecutor and Jamal’s attorney, Anthony Jackson, who was representing Jamal at the time, reached a consensus that Ms. Dawley should be removed as a juror, because she had violated sequestration, and because she had displayed adverse feelings towards Jamal.
Mumia Abu-Jamal’s supporters and his attorneys often imply that he was barred from attending this allegedly critical meeting as part of a conspiracy to cull Dawley from the jury simply because she was black. The actual facts contradict this silly allegation. Jamal was not present because he had previously been removed from the courtroom due to his disruptive and contemptuous actions, prior to the topic of Ms. Dawley’s violation ever being mentioned. As prescribed by law, Anthony Jackson was representing Jamal as defense counsel during this conference. As was appropriate, Jackson, along with McGill and Sabo agreed to Dawley’s removal.
Jamal’s supporters and his attorneys place great weight upon Jennie Dawley because she was black and because “she was the only juror personally selected by Jamal.” But through his self-representation in the selection process, all of the jurors — an unknown number of whom were black — were selected by Jamal. To single out Dawley as “Jamal’s choice” is absurd, as McGill too agreed to her acceptance while he still possessed numerous peremptory challenges.
Jamal’s lawyers also argue that his being “barred” from attending this conference was a violation of his right to “due process”. But in two cases called Snyder vs. Massachusetts (1934) and United States vs. Gagnon (1985), in which the court ruled that:
“Whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, [the] presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.”
Jamal’s absence at the time Jennie Dawley was being discussed — a juror who, according to Jamal’s own attorney, was “very belligerent” towards Jamal — did not “thwart” a fair and just hearing.”
If one reviews the trial record, all the far-flung allegations of conspiracy to racially fix the jury in Mumia Abu-Jamal’s trial are exposed as inaccurate misrepresentations of what actually occurred. Yet, despite the Supreme Court’s ruling stating that the “racially stacked jury” myth is “without merit,” Jamal, his lawyers and his supporters continue to twist the facts and argue this myth outside the courtroom.
Despite Jamal’s propaganda to the contrary, the simple fact is that, even more than most defendants, Mumia Abu-Jamal was given every opportunity to be personally involved in the selection of his jury.
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