FROM PRESS CONFERENCE HELD ON 19 JULY, 6.30pm
GARDEN COURT CHAMBERS, 57-60 Lincoln's Inn Fields, London, WC2A 3LS
LEADING UK LAWYERS PETITION US APPEAL COURT
RE RACISM IN CASE OF DEATH ROW JOURNALIST
Over 130 of the UK’s most distinguished lawyers are signatories to a letter initiated by Ian Macdonald QC and Legal Action for Women, to the US court of appeal highlighting the racism in the original trial and subsequent hearings of Mr Mumia Abu-Jamal. After 24 years on Pennsylvania’s death row, Mr Abu-Jamal, an award winning journalist convicted in 1982 of killing a policeman, has been granted an appeal which if successful could result in a new trial. This would be the first time his side of the case against conviction would be heard by a jury.
The signatories include: many who are Queen’s Counsel; leading criminal trial lawyers, in some cases household names such as Michael Mansfield QC, Helena Kennedy QC, Lord Gifford QC, Gareth Peirce, Clive Stafford Smith and Geoffrey Bindman; those with experience of doing appeals in the Privy Council in death penalty cases from the Caribbean; many experienced in race and gender discrimination cases; and a professor of law. On 20 July, Robert R. Bryan, lead counsel for Mr Abu-Jamal, will submit opening briefs for the appeal on issues such as prosecutorial use of racism in jury selection and the death penalty.
Ian Macdonald QC, criminal trial lawyer and leading authority in the UK on anti-racism and immigration law, says:
“This is a most unusual case: although it is taking place in a United States court, there is enormous concern among the legal profession here at the strikingly unfair trial that took place. As members of this distinguished profession, which claims to work for justice, we feel obliged to register our grave concern. There is no doubt that what happens in US courts affects the legal climate in the UK.
Drawing on the common legal heritage between the UK and the US which, “since the time of Magna Carta in 1215, has given pride of place to common notions of due process and a fair trial” to justify their intervention, the letter lists some of the more noteworthy outrages including: the prosecution’s systematic removal of Black people from the jury and the blatant racist bias of trial Judge Albert F. Sabo.
Not only was Judge Sabo overheard to say that he was going to help the prosecution ‘fry the nigger’, he banned Mr Abu-Jamal from crucial periods of his own trial and denied him the right to represent himself, he gave the prosecution leeway to slander the defendant, and showed unrestrained favouritism towards white candidates for jury selection.
The concern for Mr Abu-Jamal to have a new trial comes also from opposition to the death penalty. His case is a key test of judicial murder. Thousands of lives depend on the outcome, starting with the 3370 people on death row who are disproportionately Black people and other people of colour.* Mr Abu-Jamal had no criminal convictions before his arrest. The determination of the police, prosecution and judge to deny him a fair trial and execute him strongly suggests that this outstanding campaigning journalist is being tried for his track record of exposing racism, police brutality and corruption in Philadelphia, and for his ongoing opposition to US government policies and practices. What does it mean for political opposition within the superpower if critics of government policies can be disposed of in this shameless anti-democratic way? When the standard of justice within the superpower is allowed to fall, the rest of the world is inevitably influenced.
The lawyers entreat the US courts to make right the actions of Judge Sabo, a racist hanging judge, lest he be taken as the face of US justice.
Legal Action for Women comments:
“We have supported Mr Abu-Jamal’s fight for a new trial for many years and last October had the first opportunity to visit him in prison. With Ian Macdonald we initiated this letter to help ensure that this remarkable man, who is in the greatest danger of judicial murder, and whose case against conviction has never been heard by a jury, gets what we are all entitled to: a fair trial.”
* NAACP-LDF Death Row USA (April 1 2006)
Background
Mumia Abu-Jamal is an award-winning journalist who, in the years leading up to his December 9, 1981, arrest, had actively exposed police corruption, racism, and violence against Black people and other people of colour. Despite severe restrictions on contact with the outside, including how much written material he is allowed, he has continued his work from inside prison, recording weekly Dispatches From Death Row, incisive radio commentaries, for Prison Radio, which goes out on 100 stations. He also writes for other publications. He has written five books while in prison including: Live From Death Row and most recently We Want Freedom: a Life in the Black Panther Party.
The US government's determination to kill Mr Abu-Jamal has to be seen in the context of its treatment of other journalists, many of whom have been killed for trying to speak the truth. His work as a ‘jailhouse lawyer’, regularly providing legal advice to other prisoners, led to recognition by the US National Lawyers Guild a prestigious organisation of lawyers in the US whose aim is to eliminate racism and defend civil, legal and human rights. He tells the story of jailhouse lawyers like himself in a forthcoming book.
Mumia Abu-Jamal's fight for a fair trial has won the support of tens of thousands of people around the world including Archbishop Desmond Tutu, Nelson Mandela, the European Parliament, Alice Walker, Paul Newman, Sister Helen Prejean, Danny Glover, Rage Against The Machine, the Detroit and San Francisco City Councils, Amnesty International, and many others. Various cities including Paris, have bestowed on him honorary citizenship.
Accusations aimed at discrediting Mr Abu-Jamal, for example, that he has never given an account for what happened on that night, ignore the evidence that he was shot in the chest and rendered unconscious shortly after approaching the scene and consequently knows nothing of what happened theret.
Mumia Abu-Jamal comments:
"I remain innocent. A court cannot make an innocent man guilty. Any ruling founded on injustice is not justice."
Robert R. Bryan, lead counsel comments:
“Mumia's case is now moving forward and may proceed at great speed. The authorities want to silence his voice and pen. In over three decades of litigating death-penalty cases, I have not seen one in which the government wants so badly to kill a client.”
Garden Court Chambers
57-60 Lincoln's Inn Fields
London, WC2A 3LS
Learned Colleagues:
We write about the case of Mr Mumia Abu-Jamal, an award-winning journalist who has been on Pennsylvania’s death row for nearly a quarter of a century, and who was recently granted a review by the United States Court of Appeals, Philadelphia.
The review was granted by the Court on three issues, each clearly of enormous constitutional importance.
This is of great interest to us here in the UK because:
(i) we share a common legal heritage which, since the time of Magna Carta in 1215, has given pride of place to common notions of due process and a fair trial;
(ii) these common notions guarantee all, citizen or alien, who come before our courts on serious criminal charges a trial by a jury of their peers and a judge who is both independent and unbiased.
Where our systems at present part company is over the question of the death penalty. The United Kingdom ended the death penalty for murder with the Murder (Abolition of Death Penalty) Act in 1965. Since that time the death penalty has been abolished or suspended in all countries in the European Union and all member countries of the Council of Europe, including the former Soviet Union.
In those parts of the Caribbean where the death penalty still operates, it has been held by the Privy Council, the supreme court of the British Commonwealth, that to keep a person on death row for more than five years is inhuman and degrading treatment, and therefore unconstitutional.
Furthermore, more recently, the Privy Council has ruled that the mandatory requirement to impose a death penalty for murder is incompatible with the right not to be subjected to inhuman or degrading punishment or treatment enshrined in the constitutions of the Eastern Caribbean, Jamaica and the Bahamas (see The Queen v Reyes (2002) 2 WLR 1034; The Queen v Lambert Watson (2005) 1 AC 472: (2004) 3 WLR 841; The Queen V Bowe and Davis [2006] UKPC 10).
In the jurisprudence of the European Court of Human Rights it has been held that extraditing a person to face the death row phenomenon amounts to inhuman and degrading treatment and is a breach of Article 3 of the European Convention of Human Rights (Soering v United Kingdom 1989 11 EHRR 439).
In our own legal developments, the greatest factors leading to abolition were:
(i) the discovery that innocent people had been convicted and executed, and
(ii) a series of unsafe convictions where trials were flawed by unfairness, bias or the withholding of important evidence by the law enforcement agencies.
As regards bias, the requirement for trial by an ‘impartial tribunal’ embodies the protection against actual and presumed bias, and applies equally to the judge and to the jury. In Porter v Magill (2002) AC 357, the House of Lords set out the test which applies in British courts. The court should first ascertain all the relevant circumstances, and then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.
So the reasons why we have become particularly interested in the review of Mr Abu-Jamal’s conviction and sentence are:
(i) because of the serious and disturbing allegations that the fairness of Mr Abu-Jamal’s trial was hopelessly compromised by racism; and
(ii) because Mr Abu-Jamal has become uniquely identified with the movement against the death penalty which is growing in every country, not least in the US itself, where it is practised most. Thus interest in his case and concern for him transcend national boundaries.
The new development in Mr Abu-Jamal’s case is that for the first time in 25 years a court has rendered a decision which could eventually result in this admirable individual receiving a new and fairer trial, and his likely freedom.
We write as lawyers practising in the UK who, sharing a common legal heritage with our counterparts in the USA, are disturbed by the serious allegations that this conviction is fatally flawed by the racism which seems to have permeated the case since the night of Mr Abu-Jamal’s arrest in 1981.
One significant issue before the court in this latest review is whether the prosecution’s systematic removal of Black people from the jury undermined the fairness of the entire judicial process. The prosecution used peremptory challenges to remove qualified people whose only difference from other prospective jurors was the colour of their skin. This appears to have been common practice especially for the prosecutor in this case.[1] That would never be allowed in our jurisdiction, and, as you know, the US Supreme Court held some years ago that such a practice is unfair. It is this precedent that is being relied on to mount a challenge in Mr Abu-Jamal’s case.
We are aware, however, that since that ruling, in similar cases, lower courts have rationalised and excused racist manipulation of jury selection by the prosecution, ultimately resulting in the execution of the victim of this racism. We are concerned that in this case the law as laid out by the US Supreme Court will not be breached again by the racism of a lower court.
Another issue which has been accepted for federal review involved the prejudicial conduct at the post-conviction hearing of the trial judge, Judge Albert Sabo, now deceased. In granting a review of this judge’s behaviour, the Federal Court has clearly shown proper concern about the blatant bias and racist conduct of the trial judge which permeated Mr Abu-Jamal’s trial.
It is widely understood in our profession that the racism of Judge Sabo was not confined to the occasion of the post-conviction hearing or indeed just to this trial, but that he had a reputation for bias and partiality, and was responsible for putting more people on death row than any other judge in the United States. It is said that it is no accident that nearly all of those prisoners were Black. Just as we object if the 18th century hanging judge, Judge Jeffries, is taken to be the face of British justice, no-one in your country would want Judge Sabo to be taken as the face of US justice.
We understand that Mr Robert R Bryan, Mr Abu-Jamal’s lead counsel, has interviewed numerous people who were present not only at the 1982 trial but also at the subsequent evidentiary hearing in 1995, who all witnessed the racist conduct of the judge, which was both overt and subtle.
Judge Sabo discriminated against Mr Abu-Jamal in ways that were clearly related to his race and gave vent to expressions of racist political beliefs.
The most blatant example was the judge’s comment, overheard by a stenographer, that he was going to help the prosecution ‘fry the nigger’.
In addition, Mr Abu-Jamal repeatedly insisted on his right to represent himself, since the court-appointed attorney was not prepared and had conducted very little in the way of an investigation. Judge Sabo denied the defendant this basic right. When Mr Abu-Jamal protested, he was removed from the courtroom. As a result Mr Abu-Jamal was not present during a large portion of his own trial and was thus essentially tried in absentia.
It seems to us to be a matter of some significance that Mr Abu-Jamal was denied the right of self-representation at the very moment in the trial when he was questioning prospective jurors. The outcome is that the prosecution were able to remove Black jurors, while Mr Abu-Jamal was denied the right to question key jurors.
Judge Sabo also allowed the prosecution to argue that Mr Abu-Jamal had been a member of the Black Panther Party[2] as if that was a crime and justified the death penalty. Witnesses also confirm that he showed favouritism towards white witnesses and jurors, allowing one white witness personal time off but denying the same request to a Black juror, leading to this juror leaving the jury. Witnesses reveal that the judge expressed his displeasure with those who were people of colour by the rolling of his eyes and in voice inflection, which was bound to have a terrible impact upon the jurors.
Other witnesses interviewed by Mr Bryan confirm that the treatment of Mr Abu-Jamal by the police was markedly racist. The police were heard by more than one witness to have referred to Mr Abu-Jamal as ’nigger, and after his arrest they ground his head into a post even though he was badly wounded, having been shot in the chest.[3] The police also made a blatant and clear demonstration to the jury of their support for a conviction by packing the court with uniformed police officers. We are not unfamiliar with either such police racism or the kind of court tactics used here – similar behaviour led to some of the most notorious miscarriages of justice in the UK, where convictions were often not overturned by the Court of Appeal until many years later.
We know these issues are to be reviewed in this new appeal, which gives the courts a last chance to right these wrongs. Now that we are in the 21st century, we hope and trust that the court and the public in the United States are aware of the strong concern outside of the US that this racism is dealt with in the strongest and clearest terms.
This is especially urgent in the light of the Katrina hurricane disaster in New Orleans, when television viewers in every country of the world witnessed an unparalleled display of racism on a massive scale, allowed (some would say enabled) by the US government.
You will want to know that the signatories to this letter have worked for many years in the judicial system, that all have worked in cases which challenged various forms of racism, and that some of the signatories are people of colour. We are all profoundly aware of the impact on our personal and professional lives, and on the entire society, of racism in the US judicial system given the influence the United States exercises in every country.
We are also aware that the outcome of this appeal will have a great impact on all people of colour who are at present facing the judicial system; their cases will be influenced, possibly even determined, by whatever legal but also moral precedents are set in the case of Mumia Abu-Jamal.
However, our general concerns do not override our particular worries for this gifted individual who has shown both before and since his incarceration that he is dedicated to the work of changing our world for the betterment of all.
We ask that you consider most carefully the issue of racism in this particular case in the light of the above concerns.
Yours sincerely,
Patrick Allen, Hodge, Jones & Allen
Tamsin Allen, Bindman & Partners
Isis Amlak, Director, Kensington & Chelsea Advocacy Alliance
Lord Anthony Gifford QC, 8 King’s Bench Walk Chambers
Allison Bailey, Garden Court Chambers
Tim Barnden, Wesley Gryk Solicitors
Sophia Barrett, Christian Khan Solicitors
Geoffrey Bindman, Bindman & Partners
Gilbert Blades, Wilkin Chapman Solicitors
Henry Blaxland QC, Garden Court Chambers
Ruth Brander, Doughty Street Chambers
Nick Brown, Doughty Street Chambers
Shereener Browne, Garden Court Chambers
Ruth Bundey, Harrison Bundey Solicitors
Rachel Burley, Christian Khan Solicitors
Emily Burnham, Bail for Immigration Detainees
Brenda Campbell, Garden Court Chambers
Sophia Cannon, Tooks Chambers
Simon Canter, 8 King’s Bench Walk Chambers
Natasha Catterson, Fisher Meredith Solicitors
Raj Chada, Hodge Jones & Allen
Rebecca Chapman, Tooks Chambers
Hugo Charlton, 1 Grays Inn Sq. Chambers, Green Party Chair & Home Affairs spokesperson
Mick Chatwin, Renaissance Chambers
Louise Christian, Christian Khan Solicitors
Kevin Cobham, Cobham Solicitors
Sue Conlon, Tyndallwoods Solicitors
Julie Corns, Fisher Meredith Solicitors
Madeleine Corr, Birnberg Peirce and Partners
Paddy Cosgrove QC, Broad Chare Chambers
Stephen Cottle, Garden Court Chambers
Helen Curtis, Garden Court Chambers
Owen Davies QC, Garden Court Chambers
Liz Davies, Garden Court Chambers
Martyn Day, Leigh Day and Co. Solicitors
Rachel Despict, Birnberg Peirce and Partners
Stephen Dinkeldein, Fisher Meredith Solicitors
Laura Dubinsky, Doughty Street Chambers
John Finlay, Fisher Meredith Solicitors
Brendan Finucane, QC, 23 Essex Street Chambers
Edward Fitzgerald QC, Doughty Street Chambers
Matt Foot, Birnberg Peirce and Partners
Andrew Frederick, Christian Khan Solicitors
Danny Friedman, Matrix Chambers
Arantxa Gaba, Kensington Citizen’s Advice Bureau
Natalia Garcia, Tyndallwoods Solicitors
Alison Gerry, Doughty Street Chambers
Jonathan Glasson, Doughty Street Chambers
Alex Goodman, Atlas Chambers
Courtenay Griffiths QC, Garden Court Chambers
Wesley Gryk, Wesley Gryk Solicitors
John Halford, Bindman & Partners
Phil Haywood, Doughty Street Chambers
Richard Hermer, Doughty Street Chambers
Glen Hodgetts, Tooks Chambers
David Holland, Landmark Chambers
Michael House, Garden Court Chambers
Colin Hutchinson, Garden Court Chambers
Wayne Jordash, Doughty Street Chambers
Andrew Katzen, Hodge Jones & Allen
Helena Kennedy QC, Doughty Street Chambers
Judy Khan, Garden Court Chambers
Julia Krish, Garden Court Chambers
Robert Latham, Doughty Street Chambers
Anya Lewis, Garden Court Chambers
Catrin Lewis, Garden Court Chambers
Alastair Lyon, Birnberg Peirce and Partners
Ian Macdonald QC, Garden Court Chambers
Alison Macdonald, Matrix Chambers
Daniel Machover, Hickman and Rose Solicitors
Jeannie Mackie, Doughty Street Chambers
Pierre Makhlouf, Hackney Community Law Centre
Sajida Malik, Birnberg Peirce and Partners
Campbell Malone, Stephensons
Mike Mansfield QC, Tooks Court Chambers
Anne Marie Jolly, Hodge Jones and Allen
Kate Maynard, Hickman and Rose Solicitors
Kathy Meade, Hackney Community Law Centre
Rajiv Menon, Garden Court Chambers
Keir Monteith, Garden Court Chambers
Peter Morris, Doughty Street Chambers
Anna Morven, Bail for Immigration Detainees
Aryeh Moss, Moss & Co. Solicitors
Narinder Moss, Moss & Co. Solicitors
Piers Mostyn, Tooks Chambers
Terry Munyard, Garden Court Chambers
Sonali Naik, Garden Court Chambers
Catherine O’Donnell, Garden Court Chambers
Femi Omere, Garden Court Chambers
Tim Owen, QC, Matrix Chambers
Icah Peart QC, Garden Court Chambers
Gareth Peirce, Birnberg Peirce and Partners
Jackie Peirce, Glazer Delmar Solicitors
Martin Penrose, Southwark Law Centre
Anne-Marie Piper, Farrer & Co.
Alan Ponting, Asylum Adjudicator
Beatrice Prevatt, Garden Court Chambers
Professor Richard Rawlings, London School of Economics
Paul Ridge, Bindman & Partners
Nicola Rogers, Garden Court Chambers
Nighat Sahi, Christian Khan Solicitors
Sadat Sayeed, Garden Court Chambers
Mike Schwarz, Bindman & Partners
Lucy Scott-Moncrieff, Scott-Moncrieff, Harbour and Sinclair
Smita Shah, Garden Court Chambers
Phil Shiner, Public Interest Lawyers
Maya Sikand, Garden Court Chambers
Stephen Simblet, Garden Court Chambers
Anne Singh, Christian Khan Solicitors
Jessica Skinns, Bindman & Partners
Abi Smith,Tooks Chambers
Julie Sohrah, Bindman & Partners
Hugh Southey, Tooks Chambers
David Spens QC, Garden Court Chambers
Clive Stafford-Smith, Reprieve
Alison Stanley, Bindman & Partners
Dawn Staple, Hodge, Jones & Allen
Keir Starmer QC, Doughty Street Chambers
Mark Stephens, Finer Stephens Innocent
Frances Swaine, Leigh, Day & Co. Solicitors
Mark Symes, Garden Court Chambers
Ronan Toal, Garden Court Chambers
Michael Turner QC, Garden Court Chambers
Pete Weatherby, Garden Court Chambers
James Wech, Liberty
Anesta Weekes QC, 23 Essex Street Chambers
Quincy Whitaker, Doughty Street Chambers
Marc Willers, Garden Court Chambers
Marcia Willis Stewart, Birnberg Peirce and Partners
Rebekkah Wilson, Tooks Court Chambers
Sarah Woodhouse, TRP Solicitors
Claire Wright, Fisher Meredith Solicitors
Eleanor Wright, Fisher Meredith Solicitors
Zubier Yazdani, Hodge, Jones & Allen
Hossein Zahir, Garden Court Chambers
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Legal Action for Women, founded in 1982, is a grassroots anti-sexist, anti-racist legal service for all women and their families. LAW combines access to a network of sympathetic lawyers with experienced lay workers. Its insistence that no case is “hopeless”, that something can always be done, has won LAW recognition including from distinguished legal professionals. LAW has helped prevent many injustices and set important precedents including for the first private prosecution for rape in England.
Ian Macdonald QC is a criminal trial lawyer and a leading authority on immigration law, and author of the standard text Macdonald's Immigration Law and Practice used by immigration practitioners, officials, adjudicators and judges. Head of Garden Court Chambers until 2003 and known for notable cases such as the Mangrove Nine whose case against conspiracy was fought and won in the context of massive community support, and as author of the path-breaking report Murder in the Playground, an Inquiry into Racial Violence in Manchester Schools, following the murder of 13-year-old Ahmed Ullah by another pupil. He was leading counsel for Duwayne Brooks, friend of Stephen Lawrence and key witness in the government Inquiry into his racist murder.
Robert R Bryan became lead attorney for Mumia Abu-Jamal in 2003. He has specialized in death-penalty litigation for three decades, and is lead counsel in various murder cases pending at the federal and state level. Notable cases include representing Anna Hauptmann, widow of Richard Hauptmann executed in 1936 in New Jersey for the kidnap-murder of Charles A. Lindbergh, Jr. and Jimmy Eagle indicted for the killing of two FBI agents on the Pine Ridge Indian Reservation. He is legal commentator for ABC television in San Francisco and lectures widely on the death penalty and human rights in the US and Europe.
Some facts about Mr Abu-Jamal’s 1982 trial
The policeman was killed with a .44 calibre gun. Mr Abu-Jamal's gun, which he was licensed to carry as a night-time taxi driver, was a .38 calibre.
The police never tested Mr Abu-Jamal's gun to see if it had been recently fired. They did not even examine his hands to see if he had fired a gun.
It was claimed at trial that Mr Abu-Jamal stated, at the hospital shortly after the shooting, that he fired the fatal shots. Yet, that was contradicted in a written police report by the officer who was with Mr Abu-Jamal from the moment he was placed in the paddy wagon at the homicide scene until he went into surgery for removal of the bullet lodged near his spine. When asked about the long time spent guarding the defendant, the police office reported: “The negro male made no comment.” A week later he was asked by the chief detective on the case if there was anything he wished to add to his statement, to which the officer replied: “Nothing I can think of now.” He was hidden from the defense at the 1982 trial so did not testify to contradict what other police witnesses claimed was said. Incredibly, 13 years later the officer’s memory “improved” and he claimed to have heard Mr Abu-Jamal state while lying on the floor at the hospital: “I shot him. I hope the motherfucker dies.”
The treating doctor said that Mr Abu-Jamal was unconscious and said nothing. He reported that a nurse found police with loaded guns pointed at the suspect as he lay virtually lifeless in his hospital bed.
William Singletary, a Vietnam veteran and local businessman, saw the whole incident and said that Abu-Jamal was not the shooter. However, the police forced him to change his story and intimidated him into leaving Philadelphia. Over a decade after, he testified at an evidentiary hearing that Mr Abu-Jamal did not shoot the cop and was innocent. The police had put pressure on him to corroborate their version of events.
Other key witnesses, such as Veronica Jones who at the 1995 hearing, testified in support of Mr Abu-Jamal, were harassed into initially giving false testimony. Two prosecution witnesses were given special favors, including exemption from criminal prosecution, for their testimony against him.
The defense lawyer did not interview a single witness in preparation for the 1982 trial, and lacked adequate funds for defending a capital case. Mr Abu-Jamal could not afford to retain competent counsel, an investigator, or needed experts in such fields as pathology and ballistics.
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