IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
_________________________________________
COMMONWEALTH OF PENNSYLVANIA,
Appellee, : No. 119
Cap. App. Dkt.
v.
MUMIA ABU-JAMAL,
a/k/a Wesley Cook,
Appellant.
_________________________________________
APPELLANT MUMIA ABU-JAMAL'S SUPPLEMENTAL APPLICATION FOR RELIEF IN THE FORM OF A REMAND
Appellant Mumia Abu-Jamal ("Jamal"), by his attorneys, hereby respectfully applies for relief, and supplements his pending application for relief in the form of a remand, based on new evidence in support of his claim that the Commonwealth struck eligible black jurors on account of their race.
Earlier this month, the Philadelphia County District Attorney's Office released an official internal videotape from the 1980's which was used to train its prosecutors to strike jurors on the basis of race, and to present pretextual rationalizations for those race-based strikes. That videotape advocates a policy condoning unconstitutional jury selection practices in the District Attorney's office. The videotape supports Jamal's claim that racially-based jury strikes took place in his case and that the Commonwealth's proffered explanations for those strikes were pretextual all along. It also belies the Commonwealth's false denials in this appeal that such a discriminatory policy existed. The Commonwealth's false denials and pretextual self-justifications with regard to the jury selection claims are a graphic example of the broader pattern of prosecutorial misconduct permeating every aspect of this case.
In further support of his supplemental application, Jamal states as follows:
The Philadelphia County District Attorney's Policy of Racially-Based Jury Strikes
A. On direct appeal, the Court denied Jamal's claim that the prosecution used racially-based peremptory challenges to exclude black jurors at his 1982 trial. Com. v. Abu-Jamal, 521 Pa 199, 555 A.2d 846, 850 (Pa. 1989). In this PCRA appeal, Jamal points to clear errors in the Court's prior analysis, as well as new evidence and factors establishing his Batson claim. (Brief for Appellant, pp. 96-98.) Among other things, Jamal alleges that "the Philadelphia district attorney's office has engaged in a pattern of striking black jurors." (Brief for Appellant, p. 98.) Jamal cited a federal case noting such a pattern. Diggs v. Vaughn, 1991 U. S. Dist. LEXIS 3945 (E. D. Pa. 1991) (citing "testimony by attorneys familiar with practices in the Philadelphia courts during the relevant period, to the effect that assistant district attorneys routinely sought to exclude blacks from criminal juries"). The Commonwealth denied that Diggs indicated a broader discriminatory policy affecting Jamal's case, misleadingly asserting that "`the relevant period' in Diggs v. Vaughn was 1977, not 1982." (Brief for Appellee, p. 160 n. 82.)
2. Yet now the Commonwealth has publicly conceded that its historic practice of race-based challenges continued as an official prosecution policy through the mid-1980's. The Philadelphia County District Attorney's Office has released a "jury selection" training videotape produced in 1986 or 1987 through which that Office trained its prosecutors to use discriminatory peremptory challenges to strike eligible blacks from jury panels. The videotape records a lecture by Jack McMahon, then a member of the District Attorney's staff, given under the imprimatur of "DATV" and "Ronald Castille, District Attorney." [1] This training video advocates the use of racially-based jury strikes in the most express and blatant fashion. For example, the videotape trains prosecutors that it is essential to keep constant count of the number of blacks and whites on the jury venire:
"When the jury comes in the room, when the 40 people come in the room, count them. Count the blacks and whites. You want to know at every point in the case, where you are. Forty come in. You see 25/15. I mark it down on my sheet: 25/15. And then I know. And then I know how many are left at all times in my jury selection process." [2]
McMahon also instructs the prosecutors that if they need to know how many blacks will be in the next group of jurors called, they should make up an excuse for a recess in order to see how many "bad" jurors are left waiting in the hallway.
3. The videotape also offers reprehensible stereotypes of blacks and other prospective jurors, dripping in racial invective: "People from Mayfair are good, and people from 33rd and Diamond stink. . . . The blacks from the low income areas are less likely to convict . . .. And, as a result, you don't want those people on your jury. . . . Another factor in selecting blacks: You don't want the real educated ones. . . . Again, my experience, young black women are very bad. There's an antagonism. . . You don't want social workers. That's obvious. They got intelligence, sensitivity, all this stuff. You don't want them. . . . Teachers are bad, especially young teachers. . . . I've had good luck with teachers from the public school system. .. . . Ask them what schools they teach in. They may be so fed up with garbage in their schools; 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."
4. The "DATV" videotape counsels that in striking black jurors, prosecutors should be careful not to exclude all the blacks, but instead should tailor the panel to include three or four blacks:
"Some people say the best jury is an all white jury. I don't buy that, particularly with a black defendant. . . . Eight whites and 4 blacks is a great jury. Nine and 3. . . ."
McMahon is very clear about which blacks to strike and which to keep:
"Another factor in selecting blacks: You don't want the real educated ones. This goes across the board -- all races. . . . If you're sitting down and you're going to take blacks, you want older black men and women particularly men, 70, 75 years old. . . . The other thing is blacks from the South -- excellent. . . . I tell you, I don't think you can ever lose a jury with blacks from South Carolina. They are law and order. They are on the cops side. Those people are good."
5. The Philadelphia County District Attorney cannot excuse or downplay McMahon's statements as the words of a lone "rogue" prosecutor, because McMahon was plainly voicing a widespread and long-standing policy of that Office. In the tape itself, McMahon repeatedly affirms that he is articulating the policy of fellow prosecutors. Indeed, McMahon states that his colleagues are even more aggressive in striking black jurors, asserting that in the conventional wisdom of Philadelphia prosecutors, "the best jury is an all white jury." In contrast, McMahon says he is willing to accept older black jurors, while "other D. A.'s" would strike those older black men because "they're black, I've got to get rid of them." McMahon similarly encourages the staff to tap the "wisdom of the ages" and learn racial stereotypes from senior prosecutors: "let people that have been around and have tried cases say people from Mayfair are good and people from 33rd and Diamond stink and get to know that." [3] Given that the videotape explicitly voices a widespread and long-standing practice and policy, it has clear relevance to the Batson issues here, even though it post-dates Jamal's trial. Moreover, the tape pre-dates the Commonwealth's direct appeal brief which presented pre-textual justifications for the Commonwealth's jury strikes.
6. Further proof that McMahon's views reflect the widespread practices of the District Attorney's Office is provided by the judicial record. For example, in Diggs, supra, the federal court cited "testimony by attorneys familiar with practices in the Philadelphia courts during the relevant period [the late 1970's], to the effect that assistant district attorneys routinely sought to exclude blacks from criminal juries." [4] Moreover, in this case, Jamal presented the testimony of his trial lawyer, formerly a member of the Philadelphia District Attorney's staff, that it was the practice of that office to strike black jurors on the basis of race in homicide cases:
Trying cases in City Hall, I know most D.A.'s, most homicides, will get rid of as many blacks as they possibly can, first to the death qualification and then peremptory. Actually, in the beginning of this trial in the jury selection I asked the Judge to state the race of the Jurors there for that very reason. I wouldn't have asked unless I thought it might be happening. (Tr. 7/28/95: 208.) [5]
7. The "DATV" training tape was produced after the United States Supreme Court had rejected those very practices in Batson v. Kentucky, 476 U. S. 105 (1986). The tape makes reference to Batson, and McMahon explains that it is the "policy" of the Philadelphia District Attorney's Office to attempt to circumvent the Batson doctrine. Warning that prosecutors will face Batson challenges when they exclude blacks, McMahon does not advise the prosecutors to abandon their past practices. Instead, he asserts that Batson is "very limited" in its application. He goes on to explain that it is the "policy we have been using" to "protect yourself" by articulating pretextual rationalizations for these strikes. Explaining that it will be too late to "make something up" when the defense objects, he advises the staff to "ask more questions" of black jurors in order to elicit some information that can be pointed to as a race-neutral justification, and then "mark something down that you can articulate."
8. The "DATV" jury selection videotape also shows that the use of racially-biased jury strikes is simply one element of a broader "win at all costs" prosecutorial mentality, flouting the well-established principle that the prosecutor's job is not to secure convictions, but to serve justice. The training videotape literally mocks that principle:
"The case law says the object of getting a jury . . . is to get a competent, fair and impartial jury. Well, that's ridiculous. You are not trying to get that. Both sides are trying to get the jury most likely to do what you want them to do. . . . If you go in there as some noble civil libertarian and try to get jurors who are fair, that's ridiculous. You'll lose. You'll be out of the office and doing corporate law. . . . You are there to win. . . . The only way you are going to do your best is to get jurors that are unfair and more likely to convict than anybody else in that room . . ."
The training video also cautions against selection of "smart people" as jurors "because smart people will analyze the hell out of your case. . . . They take those words reasonable doubt, and they actually try to think about them." [6]
9. The significance of prosecutorial misconduct in jury selection cannot be understated. Indeed, the DATV videotape emphasizes that jury selection is "the single most important part of trial. Preparation, evidence, witnesses, statements don't mean anything unless you have a great jury. The single most important thing to do is to pick a good jury." Taken as a whole, the fundamental lesson of the DATV training tape is that the "most important" element of a trial is to select jurors on the basis of race to assure a jury "that is unfair and more likely to convict." That conclusion runs directly contrary to clearly-established principles concerning the role of the jury. A citizen's right to an impartial jury of his peers is "the grand bulwark of his liberties." Strauder v. West Virginia, 100 U. S. 303, 308 (1880) quoting Blackstone's Commentaries. The legal struggle for equal protection has included a running battle to secure the right of black defendants to jury trial (overcoming "Lynch Law") and to secure the equal right of black citizens to serve as jurors. This has required a continuous struggle against the racist claim that blacks are not "fit" to serve as jurors, a canard repeated in the DATV videotape. See, e.g., Norris v. Alabama, 294 U. S. 587, 597 (1935) (overturning capital convictions in "Scottsboro" case because of "long-continued, unvarying, and wholesale exclusion of negroes from jury service").
Jamal's Claim of Racial Discrimination in Jury Selection
10. The newly-disclosed "DATV" training tape is of key relevance to Jamal's Batson claim because it highlights the very practices and tricks which the Commonwealth used at Jamal's trial and on appeal in a transparent effort to disguise the race-based jury strikes.
11. It is now undisputed that the prosecution used at least ten of its fifteen peremptory strikes to exclude at least ten of fourteen eligible black jurors.7 There were sixteen jurors seated (including four alternates), and there were another twelve jurors that the Commonwealth expressly found "acceptable," but whom Jamal struck. Out of this total of twenty-eight jurors "acceptable" to the Commonwealth, at least twenty-four were white. Hence at least 67 percent (10 of 15) jurors that the prosecutor struck were black, while 86 percent (24 of 28) of the jurors "acceptable" to the Commonwealth were white. [8]
12. In addition to the undeniable statistical disparity, Jamal has pointed to many other circumstances of his case which support his Batson claim, including the racially-charged circumstances of the case: the black defendant/white victim, the issue of police brutality, and the prosecution's injection of Jamal's teenage membership in the Black Panther Party. (See Brief for Appellant, pp. 97-98.) The racially-charged atmosphere prompted Judge Paul Ribner to remark at the first hearing: "I know there are certain cases that have explosive tendencies in this community. And this is one of them." (Tr. 1/5/82: 66.) [9] Exploiting the racially-charged atmosphere, prosecutor McGill immediately injected the issue of Jamal's teenage affiliation with the Black Panther Party into the case. As early as the bail hearing, McGill harped on the Black Panther Party connection in questioning Jamal's character witnesses. (E.g., Tr. 1/11/82: 49 ("did you know him in his late teens at all, or did you have any discussions with him when he was a member of the Black Panthers?").) At trial, in the guilt phase, the prosecutor attempted to ask Jamal's character witnesses about Jamal's Black Panther Party views. (E.g., Tr. 6/30/82: 36-37; 7/1/82: 24-25.) Then, at the penalty phase, the prosecutor questioned Jamal at length about slogans and quotes he espoused as a teenage Black Panther Party member. (Tr. 7/3/82: 22-23.)
13. On direct appeal, this Court erroneously found that Jamal had failed to establish a prima facie case of discrimination in jury selection. Com. v. Abu-Jamal, 555 A.2d at 850. In reaching that conclusion, the Court regrettably failed to appreciate the importance of Batson, calling the decision and its standards "vacuous." Id. [10] In rejecting Jamal's Batson claim, the Court also ignored the affidavit of Jamal's trial counsel, Anthony Jackson, showing that eleven of the Commonwealth's peremptory strikes were used to exclude black jurors. 555 A.2d at 850. The Court may have been misled by the Commonwealth's brief, which disputed that the Commonwealth had stricken more than eight black jurors. (Com. Br. on direct appeal, p. 19.) Then, in this PCRA proceeding, the Commonwealth quickly stipulated that two additional stricken jurors were black, and Jackson's affidavit remains unrefuted that an eleventh stricken juror was also black. (See Brief for Appellant 96-98, see also footnote 7, supra.) [11]
14. The "DATV" videotape provides further evidence of the Philadelphia prosecutors' pattern and policy of using peremptory challenges to exclude black jurors. Jamal supplements his pending remand petition and requests that this Court remand this case for further proceedings on the Batson issue, including the ability to present the videotape and take discovery, including the Commonwealth's jury selection notes in this case. Moreover, the record in this case should be scrutinized in light of the methods of prosecutorial misconduct encouraged in the "DATV" tape.
15. For example, on direct appeal this Court found it notable that the prosecution had allowed some blacks to be seated. The "DATV" videotape shows that this fact is not noteworthy, for the acceptance of a few older black jurors is consistent with a discriminatory jury selection strategy. In this case, the prosecutor found four blacks "acceptable," and all four fit the model of the "DATV" video's recommended jury of eight or nine whites and three or four stable, older, conservative blacks, including at least one juror born in South Carolina:
Jennie Dawley (Juror # 1). A retired common laborer, living with her husband in southwest Philly for over 20 years. (Tr. 6/7/82: 174-87.)
James Burgess (would have been Juror #2, stricken by Jamal). Working for SEPTA, probably about 50, living for 30 years in north Philly. (Tr. 6/9/82: 85-92.)
Savannah Davis (Juror # 7). Budget analyst for the federal government, lived over 30 years in Strawberry Mansion section, worked 29 years with government, has two children working for government, grew up in South Carolina. (Tr. 6/11/82: 53-63.)
Basil Malone (Juror # 10). Worked 2 years for maintenance company, and several years before for machine shop. 44 years old. Lived in Philadelphia 10 years and grew up in Virgin Islands, where he worked as a telephone lineman. Children are 21 and 16. (Tr. 6/15/82: 123-32.)
16. The "DATV" videotape also exposes the Commonwealth's tactic of advancing pretextual race-neutral explanations for jury strikes once a prima facie case has been established. The Commonwealth's direct appeal brief, apparently filed after the "DATV" video was prepared, set forth just such pretextual excuses for the race-based juror strikes. A review of the record, in light of the "DATV" tape, shows that these strikes were clearly pretextual and included outright misrepresentations. See Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) (granting habeas relief on 1989 conviction because, comparing stricken and seated jurors, Philadelphia prosecutors' purported race-neutral explanations were clearly pretextual).
17. On direct appeal, the Commonwealth falsely asserted that its main reason for striking jurors was because they were "unmarried" or "unemployed." (Com. Br. on direct appeal, p. 20.) While four of the stricken black jurors were unmarried or divorced (Brown, Green, Reddick, and Williams), five unmarried or divorced whites were "acceptable" to the Commonwealth: Pekala (Juror # 8) was divorced, as were Warren and Bogner; Coyle and Richman were also unmarried. (Tr. 6/11/82: 95 (Pekala); 6/9: 81 (Warren); 139 (Bogner); 6/7: 166 (Coyle); 6/11: 72 (Richman).) Four stricken black jurors were unemployed or recently laid-off, but two seated white jurors, Tomczak (Juror # 3) and Godfrey (Juror # 12) were both unemployed. (Tr. 6/10/82: 80 (Tomczak); 6/16: 299 (Godfrey).) Moreover, Tomczak's wife was also unemployed, he had no children, and he did not even have a driver's license. The Commonwealth noted that seven stricken black jurors were in their twenties or thirties. However, white juror Tomczak (Juror # 3) was also in his twenties. (Tr. 6/10/82: 87). Kleiner (Juror #15) had small children and was apparently in her twenties or early thirties. (Tr. 6/16: 481-86.) The Commonwealth also would have accepted white juror Richman, who had just graduated college and had just started a temporary job as a lifeguard. (Tr. 6/11/82: 4.178.)
18. The Commonwealth's most absurd proffered explanation is that several stricken black jurors had no prior jury service. In reality, ten out of sixteen seated jurors had no prior jury service (Dawley, Mattiace, Tomczak, Mangan, Adelman, Pekala, Ewalt, Malone, Durso, and Godfrey.) Four other jurors "acceptable" to the Commonwealth (Coyle, Bogner, Affet, Rasiul) also had no prior jury service. In sum, there were thirteen "acceptable" white jurors with no prior service. [12]
19. The Commonwealth also claimed that a number of the stricken jurors "frequently listened to the radio station where defendant had worked as an announcer." (Com. Br. on direct appeal, p. 20.) This statement is grossly misleading. The Commonwealth claims this basis for seven jurors. For three of these jurors, the claim is simply false. The Commonwealth asserts Verna Brown was "familiar with defendant as announcer," but the transcript shows that she did not know Jamal from his reports, but only that when she heard about the crime "I heard he was a newscaster." (Tr. 6/8/82: 82.) Similarly, the Commonwealth asserts that Genevieve Gibson was "familiar with defendant from radio and newspaper" but the transcript shows that she simply heard his name in the newspaper or on the radio in connection with the case. (Tr. 6/10/82: 77-78.) The Commonwealth also asserts that Mario Bianchi (white) "was familiar with defendant as broadcaster," but again all the juror said was "I heard about this case. I understand he was a disk jockey on W.D.A.S. or something." (Tr. 6/15/82: 111.) In sum, these three black jurors had simply heard of Jamal in media reports of the case, a fact which does not distinguish them from numerous white jurors who had passing knowledge of the case from media accounts.
Jamal's Pending Remand Application
20. Jamal has filed a pending application for remand concerning his claims of prosecutorial misconduct, based on the verified statement of Pamela Jenkins. Jenkins, who was a central witness in the 39th District police scandals, reveals that in 1981 some of the same officers implicated there had pressured Jenkins, then a prostitute, to identify Jamal as the shooter in this case. Jenkins also reveals that police applied similar pressure to prostitute Cynthia White, who became the central prosecution witness against Jamal at trial. The improper pressure on these prostitute witnesses is simply a link in a chain of prosecutorial and police misconduct, stretching from the suppression and destruction of a witness statement that the shooter fled the scene, to a fabricated confession, to improper cross-examination and argument.
21. The newly-released "DATV" videotape demonstrates that the chain of misconduct encompassed the jury selection as well. Jamal supplements his pending remand application and requests that this matter be remanded to permit him to support his Batson claim with the newly disclosed "DATV" videotape, and to take discovery on his Batson claim, including discovery regarding the official policies condoning race-based strikes referred to in the "DATV" videotape, the circumstances in which the tape was created, any written policies published in the aftermath of Batson or Commonwealth v. Henderson, 497 Pa. 23, 438 A.2d 951 (1979) (condoning race-based peremptory challenges), the identifies of those who viewed the DATV training sessions, and the prosecution notes regarding jury selection at Jamal's trial. Jamal has simultaneously submitted a letter to the Commonwealth requesting an official copy of the DATV videotape and other disclosures regarding the circumstances of its creation and distribution, and the "official policy" described in it. This letter, attached as Exhibit 2, indicates the breadth of discovery required on this one issue. Given the rampant evidence of prosecutorial misconduct in this case, due process demands that the entire prosecution file be disclosed. [13]
22. While Jamal asserts that a remand hearing with discovery is the only appropriate mechanism to allow full exploration of the circumstances surrounding the DATV videotape, and their relevance to the jury selection and appeal in this case, Jamal alternatively requests that the Commonwealth be ordered to provide an authentic copy of the videotape for incorporation as part of the record on this appeal.
23. The Commonwealth's false justifications of its discriminatory jury strikes fit the mold of its misrepresentations, suppression and destruction of evidence, and "win at all costs" mentality evident throughout this case. This "win at all costs" mentality is also palpable in the prosecution's attempts to insulate its own misconduct from review, its fierce resistance to PCRA discovery, and its suggestion that this Court should reverse its practice of relaxing the waiver doctrine in capital cases, to defeat federal habeas corpus review. Most recently, in answering Jamal's pending application for remand, the Commonwealth attempts to shield its misconduct from further scrutiny by demanding that the appellate record in this matter be closed, just as Jamal's investigation has continued to develop further evidence of prosecutorial and police misconduct. Because of the rampant misconduct infecting every element of this case, the only appropriate remedy is to overturn the conviction and dismiss the charges.
CONCLUSION
For all the foregoing reasons, Jamal's applications for remand should be granted in all respects.
Respectfully submitted,
LEONARD I. WEINGLASS
6 West 20th St., Suite 10A
New York, New York 10010
(212) 807-8646
DANIEL R. WILLIAMS
Moore & Williams, LLP
740 Broadway Suite 500
New York, New York 10003
(212) 353-9587
JONATHAN B. PIPER
Sonnenschein, Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
(312) 876-8000
RACHEL H. WOLKENSTEIN
67 Wall Street, Suite 2411
New York, New York 10005
(212) 406-4252
STEVEN W. HAWKINS
National Conference of Black Lawyers
918 F Street, N.W.
Washington, D.C. 20004
(202) 347-2411
DAVID RUDOVSKY, Local Counsel (Bar No. 15168)
Kairys, Rudovsky, Kalman & Epstein
924 Cherry Street, Suite 500
Philadelphia, PA 19107
(215) 925-4400
Attorneys for Petitioner Mumia Abu-Jamal Footnotes:
1 Jamal has petitioned for the recusal of Justice Castille in this appeal because, among other reasons, he would appear to have a vested interest in defending the practices of the Philadelphia County District Attorney's Office and thus cannot appear impartial in judging Jamal's claims of prosecutorial misconduct. The fact that the Philadelphia County District Attorney's Office promoted a blatant policy of racially-based jury strikes under Justice Castille's tenure is yet another instance of why it would appear unfair if Justice Castille participated in this appeal, particularly given that Jamal's allegation of just such a policy is one of the issues under review.
2 While the District Attorney has recognized an ethical obligation to distribute the videotape to defendants prosecuted by McMahon, no official copy of the tape has been provided to Jamal. Some excerpts from the tape were transcribed by the Philadelphia Inquirer on April 6, 1997 and are attached as Exhibit 1. The other quotations are from an unofficial copy of the videotape obtained by Jamal's counsel.
3 These references demonstrate the need for a hearing and discovery regarding the origins of the videotape, who authorized it, the colleagues McMahon is quoting, who viewed the lecture and the tape, the "policies" described in the tape, and other related issues.
4 Employing the very practices espoused by McMahon, in the Diggs case the prosecutor had "kept a running tabulation of the number of blacks left on the jury after each challenge was exercised . . . a telling indication of (her) predisposed prejudice toward blacks on the jury . . . " Report-Recommendation of U. S. Magistrate (Mar. 8, 1991), quoted in Death Penalty Information Center, Justice on the Cheap: The Philadelphia Story 9 (May 1992) (PCRA Petition Exh. 46).
5 In 1979, this Court had expressly condoned the use of racially-based peremptory strikes in Com. v. Henderson, 497 Pa. 23, 29, 438 A.2d 951, 953 (1979): "Put still more reductively, the race, creed, national origin, sex or other similar characteristics of a venireman may be proper considerations in exercising peremptory challenges when issues relevant to those qualities are present in the case." Id. Henderson thus distorted the holding of Swain v. Alabama, 380 U. S. 202 (1965) that "although the use of peremptory challenges to strike black jurors on account of race violated the Equal Protection Clause, a defendant could not establish such a violation solely on proof of the prosecutor's action at his own trial." Allen v. Hardy, 478 U. S. 255, 258 (1986). As Justice Nix warned in his Henderson dissent "it seems our prior decisions have encouraged prosecutors to use peremptory challenges to arrange the racial balance of juries to their benefit." 438 A.2d at 962. It would be fatuous to suggest that Philadelphia prosecutors at the time of Jamal's trial in 1982 did not employ the discriminatory tools authorized in Henderson.
6 Contrary to the position advanced in the DATV training tape, the adversary system does not match the prosecutor and defense counsel as two equals locked in a "winner take all" struggle. The defense lawyer's client is a lone defendant, while the prosecutor represents the awesome power of the State. While the defense lawyer secures and protects the accused's individual rights, the prosecutor exercises the State's power to imprison, even to execute, in the name of the whole people. The law thus dictates that the prosecution weigh what is right and fair, including what is fair for the accused. E.g., Brady v. Maryland, 373 U. S. 83, 87 n. 2 (1963) (prosecutor's job "is not to achieve victory but to establish justice").
7 Jamal unsuccessfully sought to have the trial court record the race of each juror. Nonetheless, the transcript establishes that eight of the jurors stricken by the prosecution were black. On direct appeal, Jamal presented the affidavit of his trial lawyer, Anthony Jackson, that an additional three jurors stricken by the prosecution were black. At the PCRA hearing, the parties stipulated that two of the three additional jurors identified by Jackson were indeed black. Jackson's affidavit establishes that an eleventh stricken juror was also black, meaning that the prosecution used a total of eleven of its fifteen strikes, 74 percent, against black jurors.
8 The additional 12 jurors "acceptable" to the prosecution but stricken by Jamal were: Coyle (Tr. 6/7/82: 174), Evan (6/8: 46), Moseley (6/9: 74), Warren (6/9: 85), Burgess (6/9: 92), Bogner (6/9: 151), Ottinger (6/9: 238), Fitzpatrick (6/10: 90), Affet (6/10: 136), Rasiul (6/11: 160), Richman (6/11: 178), and Cinque (6/15: 206). Burgess was black, and the remaining eleven jurors were white.
9 A Philadelphia Inquirer commentator noted after the shooting that "radio talk shows were full of people calling in to say exactly what ought to be done about the killing of police officer Daniel Faulkner on the Locust Street strip in the early hours of Wednesday morning. Some of them, predictably, want to lynch the man who calls himself Mumia Abu-Jamal as soon as he recovers from the bullet wound placed in his gut by the dying cop." (PCRA Petition, Exh. 35; emphasis added.)
10 This Court's discomfort with Batson is perhaps understandable when one recalls that earlier this Court had expressly approved of the prosecution's use of racially discriminatory jury strikes in Com. v. Henderson, 497 Pa. 23, 29, 438 A.2d 951, 953 (1979). See footnote 5, supra.
11 The Court's Batson analysis was erroneous for the further reason that it focused solely on the ultimate racial composition of the jury panel, rather than on the Commonwealth's use of specific peremptory challenges.
12 Tr. 6/7/82: 166 (Coyle); 175 (Dawley); 6/9: 140 (Bogner); 192 (Mattiace); 6/10: 82 (Tomczak); 128 (Affet); 140 (Mangan); 208 (Adelman); 6/11: 96 (Pekala); 116 (Ewalt); 152 (Rasiul); 126-27 (Malone); 243 (Durso); 306 (Godfrey).
13 Jamal also requests that the matter be assigned to a different judge on remand. See Missouri v. Smulls, 925 S.W.2d 9 (Mo. 1996), cert. pet. pending (Mar. 18, 1997) (cause reassigned to a new judge on remand for a new post-conviction hearing on Batson issues).
Dated: April 23, 1997
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