Thursday, February 18, 2021

From The Archives: Michael Schiffmann's analysis of the Third Circuit Court's 2008 Denial of Mumia Abu-Jamal's Batson Appeal

--Please sign our Color of Change petition to Philadelphia District Attorney Larry Krasner: Stop Defending Mumia Abu-Jamal's Unjust Conviction

(Note from the Jamal Journal:  This abridged and edited version of a June 29, 2008 article “The Distortion of Facts and the Law in the Service of Politics: Some Elementary Considerations Concerning the 2008 Court Decision re Batson,” was published in the 3rd issue of Abu-Jamal News.)

The 3rd Circuit Court of Appeals in its March 27, 2008 decision denied Mumia Abu-Jamal a new trial or hearing. Abu-Jamal’s appeal was based on the so-called Batson issue, which addresses prosecutorial racism in jury selection. The court’s decision was based on speculation that prosecutor McGill’s 66.7 percent “strike rate” against blacks, making them at least ten times more likely to be excluded from the jury, might be explained by some purported massive black overrepresentation in the jury pool. This was just plain wrong, factually and morally.

In the court’s ruling on Batson, the court majority claimed that the defense lacked the data to prove that prosecutor Joseph McGill used his peremptory challenges in a systematic fashion to exclude blacks. The court conceded that the defense did supply data on the so-called “strike rate”; McGill undisputedly used at least 10 out of 15 peremptory strikes against blacks- a strike rate of 66.7 percent. However, the court asserted that in order to properly evaluate this strike rate in the Abu-Jamal case, the defense was supposed to supply data on the race of all the jurors that were questioned during the jury selection process. In the case of Abu-Jamal, jury selection lasted seven days. According to the Philadelphia Inquirer, 157 people went through the process. However, this begs the question: Why should that even matter?

The large majority of the jurors- 107, were struck, not peremptorily, i.e., without giving a reason, but “for cause,” and therefore their race was irrelevant. The final authority on who gets struck for cause and who is left for the opposing parties to either accept or strike peremptorily is the judge, not the prosecutor. Further, the whole Batson issue is not about the judge, but the prosecutor, and not about strikes for cause, but about peremptory strikes.

The Two Elephants in the Room

The March 27 court ruling distorts the record by ignoring data that the defense actually did supply- both in its October 15, 1999 habeas corpus petition and in filings preceding the May 2007 Abu-Jamal hearing in Philadelphia.

As noted above, the overwhelming majority- 107 of the 157 jurors questioned during the pre-trial empanelling of Abu-Jamal’s jury were struck for cause for one of several reasons:

personal hardship involved in serving two to three weeks on a sequestered jury, 

doubts whether they could be fair (many had already concluded he was guilty), or 

opposition to the death penalty, which was by no means limited to blacks.

5 persons were either seated as one of the 4 alternate jurors or – in the case of 1 person – peremptorily struck from being an alternate. 

This left 45 people. 19 of these were struck by the defense, and 15 were struck by the prosecution, leaving 12 to be seated as jurors. These 45 constituted 28.7 percent of the whole pool of potential jurors questioned during the “venire” process. Further, subtracting from these 45, the 6 persons initially struck by the defense before the prosecutor could strike or accept them, left 39 (24.8 percent of the whole venire.) At that point in the process, the prosecutor had an opportunity to display either neutrality or racial bias concerning who was struck. 

The racial composition of this set of 39 persons, and it alone, should logically be the basis to put the prosecutor’s “strike rate” of 66.7 percent against black persons into perspective. They alone were the persons against whom he could use peremptory strikes.

However, as the court mentioned in a mere footnote of the March 27 decision:

"Abu-Jamal contends the prosecutor had the opportunity to strike thirty-nine venirepersons, of which fourteen were allegedly black, but he does not cite any record support for these numbers. We see no record support for these numbers."

Despite this assertion, all 39 persons who the prosecutor had an opportunity to accept or peremptorily strike and the additional 6 persons struck first by the defense are listed in the court transcripts by name, race, day of service and transcript page numbers on p. 18-20 of the July 19, 2006 defense filing. Even if the court were to insist to cast doubt on one or another step in the data collection in this defense filing, which it doesn’t even try – the contention that the defense “does not cite any record support for these numbers'' is simply false.

In fact, the defense presents solid data showing that indeed of these 39 persons, 14 were black – and that the rest, 25, were white, that is, the composition was 35.9 percent black versus 65.1 percent white. This percentage of African Americans is already slightly smaller than their 1980 racial composition of Philadelphia, but the prosecutor still used the vast majority, 66.7 percent, of his peremptories to remove even more of them. 

Regarding “exclusion rates”, in the sense defined by the court, the only thing that rationally makes sense is a comparison between these two numbers- the set of persons whom the prosecutor could strike peremptorily- 35.9%; and the set of persons whom he did strike peremptorily- 66.7%.

Pushing this a little further and factoring in the 6 persons, all white, struck by the defense before the prosecutor could accept or strike them, does not change the amount of black persons but does bring the total of white persons to 31; so that the black-to-white ratio could be seen as 31.1%: 68.9%.

Finally, factor in the 4 alternate jurors that the prosecutor could have struck peremptorily but did not, the picture gets even starker. As mentioned above, there were 5 persons who were considered as alternate jurors. One was peremptorily struck by the defense. Abu-Jamal’s 1999 habeas corpus petition identifies all of them as white.

This raises the number of potential jurors whose race is either given in the July 19, 2006 defense filing (45) or identified in the 1999 habeas petition and easily checkable from the record (another 5) to 50, or 31.8 percent of the entire venire, certainly a not insubstantial percentage. Looking at the racial composition of these 50 persons, the final ratio is 28 percent blacks to 72 percent whites.

None of these data are mentioned anywhere in the March 27, 2008 ruling, not even in Judge Ambro’s 41-page dissent on the Batson question. To his credit, Ambro argues for a new hearing for Abu-Jamal even without considering these data.

Also, very strikingly, the whole 118-page court decision fails to even mention any of the statistical data supplied by the defense on a systematic pattern of discrimination by the Philadelphia District Attorney’s Office in general or by prosecutor Joseph McGill in particular, data that went far beyond and supplied background to McGill’s 66.7 percent strike rate of blacks in Abu-Jamal’s June 1982 trial.

But that does not mean this evidence was not supplied by the defense. It was simply ignored by the court, apparently being too inconvenient.

In its centrally important July 19, 2006 filing, the defense clearly argues, from the known number and from the record that considering the 39 relevant venirepersons:

"the prosecutor struck 71% (10 of 14) of the blacks he had an opportunity to strike, but struck just 20% (5 of 25) of the whites he had an opportunity to strike – i.e., he struck blacks at 3.6 times the rate than he struck whites. The odds of being struck if you were black were 2.5-to-1 (10 to 4). But the odds of being struck if you were white were just 0.25-to-1 (5 to 20) – i.e., a black person’s odds of being struck were 10 times higher than someone who is white."

These two facts – that the defense had supplied statistically significant hard data on the race of approximately one third (50 out of 157) potential jurors, and that if one compares the rates with which the prosecutor struck blacks to the rates with which he struck whites, one finds the striking disparity in which a black person was at least ten times as likely to be struck as a white one – these two facts are the two big, big elephants in the courtroom in this case which won’t go away and are there for everyone to see but which none of the judges of the 3rd Circuit wanted to talk about.

Court precedent on Batson clearly – and rightly – says that statistical data to evaluate a claim of discrimination should not be applied “mechanically,” but rather, in a meaningful way. So it should have been in this case, and yet it was not

Journalist and author Dave Lindorff pointed out right after the May 17, 2007 court hearing that the argument of possible “overrepresentation” of black people in the jury pool is not only highly speculative but, given the concrete conditions in the case at hand, also bordering on the absurd.

Since, in 1982 prospective jury pools were (theoretically randomly) drawn from voter lists, the likelihood of black overrepresentation is small since the population of Philadelphia was around 38 percent in 1980. Black people nationwide, and in Philadelphia in particular, tended, if anything, to be underrepresented in the voter registration lists.

Some Additional Data

Scrutinizing for a more detailed understanding of the data, the picture is very much the same. 70 (or 52%) of the questioned jurors indicated where they lived by larger sections, such as South Philadelphia, Germantown etc.; sometimes they also indicated the neighborhood. 28 additional jurors (or 21%) only indicated the neighborhood. Thus, there is residential data on 73% of the 85% (134 of 157) of the venirepersons.

25 (or 36%) of the 70 persons who identified themselves by larger area came from Northeast Philadelphia, which in 1980 was almost all white. 15 (or 21%) came from heavily black North Philadelphia. Another 12 (or 17%) came from racially mixed South Philadelphia – but most of these were Italian, i.e., white. Thus, the data once again very strongly suggests that the racial composition of the jury pool was similar to the racial composition of the city as a whole in 1980, with a tendency, if any, of black underrepresentation..

The whole argument claiming that racial data about all 157 venirepersons in the Abu-Jamal case is necessary or even relevant to evaluate his Batson claim about racial discrimination in jury selection is unfounded. Once the facts about the composition of the jury pool are finally recognized, even this last ditch argument to deny Abu-Jamal “on the merits” relief in the Batson issue will lie in shambles. If Abu-Jamal were given a new hearing on this issue, this strategy would be revealed as no more than a sham to justify a ruling that the court wanted to reach.

--Michael Schiffmann is the author of the 2006 book Race Against Death, only published in Germany. You can contact Michael Schiffmann by email:

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