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'S APPLICATION FOR RELIEF IN THE FORM OF A REMAND

Appellant Mumia Abu-Jamal, through his attorneys, respectfully applies for relief in the form of a remand to present additional evidence in support of his claims that (1) his death sentence should be vacated due to racial and geographical disparities in the system of capital punishment in Pennsylvania which directly affected his case, and (2) that the Commonwealth impermissibly used peremptory challenges to excuse qualified jurors on account of their race in this case, which was part of a broader pattern of racially-based jury strikes in Philadelphia capital cases. Newly-prepared expert reports confirm precisely the points Jamal has already offered to prove in these post- conviction proceedings -- that black Philadelphians are substantially more likely to be sentenced to death than similarly-situated whites, and that Philadelphia prosecutors engaged in a pattern of racially-based jury strikes against black jurors in capital cases, a pattern exemplified at Jamal's 1982 trial. In further support of his application, Jamal states as follows:

1. In his post-conviction petition, Jamal alleged that the system of capital punishment in Pennsylvania is applied disparately and freakishly and is therefore unconstitutional because black defendants disproportionately receive death sentences compared to white defendants. (Amended PCRA Petition, Claim XIII; Brief for Appellant, Issue XXIV, p.116.) At the post-conviction hearing, to establish this unconstitutional racial bias, Jamal subpoenaed court administrators to testify concerning the number of black and white inmates on Pennsylvania's death row, and to establish the circumstances of their alleged crimes. Based on this evidence, Jamal offered to establish an unconstitutional racial bias in the system of capital punishment, and to show that such a bias infected his own prosecution.

2. The PCRA court quashed the subpoenas, even refusing to permit Jamal's attorneys to make any proffer with regard to those subpoenas -- and literally having one defense attorney arrested in court simply because she attempted to explain Jamal's claim that Pennsylvania's death penalty is racially biased and the relevance of the quashed subpoenas. (Tr. 8/2/95: 4-5.) The PCRA court went on to rule falsely that "petitioner made no offer of proof" on this issue. (COL 168.)

3. Although Jamal was systematically precluded from presenting evidence in support of his claim, similar evidence -- indeed, the very kind of evidence Jamal sought to present -- has now been compiled by independent researchers who have performed a study of the likelihood of black and white defendants receiving the death penalty in crimes with similar circumstances. The resulting study confirms that black defendants are substantially more likely to receive the death penalty than white defendants charged under similar circumstances. The study specifically concluded that in cases like this one where Philadelphia juries weigh aggravating and mitigating circumstances, black defendants like Jamal are over 14 times more likely to receive a death sentence. (See Exhibit A; Baldus Aff. 4.)

4. In addition, Jamal has always contended that the prosecution in this case used racially-based jury strikes to exclude eleven qualified black jurors in this case. (See Amended PCRA Petition, Claim IX; Brief for Appellant, Issue XV, p. 96.) In April 1997, Jamal filed a remand petition in this appeal to present evidence that the Philadelphia County District Attorney's office engaged in a pervasive pattern and practice of using such racially based strikes in the 1980's. That application was denied. (5/30/97 Order.)

5. The researchers who have demonstrated the racial bias in the application of the death penalty in Philadelphia have also compiled evidence substantiating Jamal's claim of racial bias in the prosecution's use of jury strikes. (See Exhibit A, Baldus Aff. 9; "The Death Penalty in Black & White," p. 23.) That study confirms that from 1983 to 1993 Philadelphia prosecutors struck 52% of all black jurors but only 23% of other jurors. (Id.; see also Exh. B.) In Jamal's case, the disparity is even more extreme -- the prosecution struck over 67% (11 of 15) of qualified black jurors, and struck only 14% (4 of 28) of qualified white jurors.

6. Federal courts have already judicially determined that a pervasive pattern of racially-based jury strikes infected Philadelphia prosecutions in the late 1970's. 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"). Last year, the Philadelphia District Attorney released an officially-sanctioned "jury selection" training videotape prepared in 1986 which expressly trained junior prosecutors to engage in such unconstitutional and racially-biased jury strikes. The new expert report confirms that this racially-biased practice extended even into the 1990's. On remand, Jamal would establish that these patterns of misconduct in jury selection and of racial bias in capital sentencing extended throughout the 1980's, including Jamal's 1982 trial.

7. Prior to his arrest, Jamal was a prominent journalist known as the "Voice of the Voiceless" for his coverage of the plight of the oppressed and his exposure of racism in America. Jamal has always maintained his innocence, and that this prosecution is racially-motivated to silence his voice and his criticism of racial injustice. Punctuating that contention, the court below effectively silenced Jamal's attempts to demonstrate in court the racial bias inherent in the death penalty, even arresting one defense lawyer for attempting to articulate that claim. Jamal is entitled to his day in court to demonstrate the unconstitutional and racist character of Pennsylvania's system of capital punishment, and the prosecution's misconduct in jury selection which rendered a fair trial impossible in this case.

CONCLUSION

For all these reasons, a remand should be granted. Alternately, the Court should expand the appellate record to include the exhibits attached hereto for the Court's consideration in reviewing Jamal's appeal.

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 Appellant Mumia Abu-Jamal
Dated: August 1, 1998

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R. A. P. 121:

Service by first class mail addressed as follows:

Hugh J. Burns, Jr., Esquire (counsel for
District Attorney of Philadelphia County)
Assistant District Attorney
1421 Arch Street
Philadelphia, Pa. 19102
(215) 686-5728

Karl Baker, Esquire (counsel for amicus)
125 South Ninth Street, Suite 701
Philadelphia, Pa. 19105-1161
(215) 568-3190

Earl W. Trent, Esquire (counsel for amicus)
1514 Cecil B. Moore Avenue
Philadelphia, Pa. 19121

Romona Washington, Esquire (counsel for amicus)
5019 Cedar Avenue
Philadelphia, Pa. 19143

Dated: August 1, 1998

Jonathan B. Piper
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60613
(312) 876-7992
(Counsel for Appellant Mumia Abu-Jamal)

[posted August 5, 1998]

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