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Citing Racist Bias, Attorneys for Mumia Abu-Jamal Urge a Federal Appeals Court to Grant the Former Black Panther a New Trial

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Attorney Robert Bryan says a racist judge and racist jury practices contributed to the sentencing of Abu-Jamal to death row. Bryan joins us in New York one day after he argued before the 3rd U.S. Circuit Court of Appeals in Philadelphia. [includes rush transcript]

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StoryMay 15, 2007Philadelphia Court Hearing Could Decide Fate of Imprisoned Journalist Mumia Abu-Jamal
This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: For our first segment, we turn to Philadelphia and a pivotal court hearing for the imprisoned journalist and the former Black Panther, Mumia Abu-Jamal. Abu-Jamal has spent a quarter-century on death row. He was convicted of killing a police officer following a controversial trial before a predominantly white jury. In 2001, a judge overturned Mumia Abu-Jamal’s death sentence but upheld his conviction. On Thursday, a three-judge panel heard oral arguments to decide whether Mumia gets a new trial, life in prison without patrol, or execution. Hundreds of people packed the courtroom, while an even larger crowd rallied in support of Mumia outside. A decision may not come down for months.

AMY GOODMAN: We’re joined right now by Mumia Abu-Jamal’s lead attorney. Robert Bryan has represented Mumia since 2003. He’s a fellow of the American Board of Criminal Lawyers and the former chair of the National Coalition to Abolish the Death Penalty. Welcome to Democracy Now!

ROBERT BRYAN: It’s a pleasure to be here, Amy.

AMY GOODMAN: Why don’t you lay out what happened in the courtroom for — what was it? — two hours yesterday?

ROBERT BRYAN: Well, it was over two hours. We argued before a three-judge panel of the United States Court of Appeals for the Third Circuit, which is just below the U.S. Supreme Court. The court seemed really interested. There are a number of issues pending before this court. They involve the death penalty, racism in jury selection, the racism and bias of the trial judge, Sabo, who referred to my client during the trial, to use his words — I’m quoting him — “I’m going to help them fry the nigger,” referring to Mumia Abu-Jamal.

AMY GOODMAN: Who heard that?


AMY GOODMAN: Who heard that?

ROBERT BRYAN: A court stenographer. It was just outside the courtroom. She was going with her judge to another courtroom, and they passed Judge Sabo in an antechamber adjacent to the courtroom where the trial occurred, and Sabo started talking about the trial and made those comments, which are as offense as — I mean, as you may know, I specialize in death penalty litigation. I’ve handled hundreds of death penalty trials and cases in post-conviction proceedings in the past three decades. I even went and spent three days in jail in a murder case for contempt of court, in which my client was acquitted — African American. I’ve seen a lot of racism, but I’ve never heard anything like that, except in this case in Philadelphia. It’s unprecedented.

JUAN GONZALEZ: And that court stenographer’s statement, has it ever gone before a judge on this case?

ROBERT BRYAN: Juan, it went before the court yesterday. I said — from my lips — and I said, “Understand, these are the words of Judge Sabo, not Robert R. Bryan.” But our focus yesterday is interesting, with all the energy by the prosecution to kill my client. The focus yesterday was on constitutional crimes committed by the prosecution. What the whole focus was primarily was on the death penalty, I’d say 20 percent, and 80 percent on racism in the District Attorney’s Office of Philadelphia. And in all of my years of doing this kind of work, I find yesterday’s hearing, as I think back on it this morning, as unprecedented. These judges, how they’ll rule, we do not know, but they were very troubled — that was very clear — about the racism in this case.

JUAN GONZALEZ: One of the main points that you were raising was the jury selection process in the original trial, right?


AMY GOODMAN: The number of challenges of potential white jurors versus black jurors. Could you talk about that?

ROBERT BRYAN: Yes. The U.S. Supreme Court has been very clear in recent years, beginning with a 1986 decision, that racism in jury selection offends the U.S. Constitution. And in this case, the prosecutor used over two-thirds of his strikes to remove people of color, African Americans, only 20 to 25 percent white people. I mean, you know, you have all of these African-American people removed and very few white people. And it’s well documented that the District Attorney’s Office of Philadelphia during that period in the early '80s, and certainly going back, were very active in employing racism in jury selection discrimination. And the big question yesterday, in my words, was — an issue for the court was and is — was race, was discrimination at work in this case? And it seems like not only the statistics, but a wealth of other evidence, certainly seems to establish that. Let's just hope that the judges agree with us.

AMY GOODMAN: Robert Bryan, the assistant district attorney, Hugh Burns, told the appellate panel that Judge William Yohn erred when he overturned Abu-Jamal’s death sentence, because he should have deferred to the decision of the Pennsylvania Supreme Court, which had already held that the penalty phase jury instructions were not confusing. Please explain that, because most people think Mumia Abu-Jamal remains on death row.

ROBERT BRYAN: That is true. He is still on death row. He’s in a cell today, Amy, that’s smaller than most of our bathrooms at home. And from there, he does his journalism, which is another story, and it’s phenomenal. But the lower U.S. district court reversed the case in December 2001, because of a misuse of the death penalty by Judge Sabo, the trial judge. He instructed the jury that they could not return anything less than death, unless they all agreed on any one particular special circumstance, such as his good works in his life. In other words, you couldn’t have one juror feel that he should not get death for one reason, another or different reason; they had to all agree, which is nonsense and contrary to U.S. Supreme Court precedent. Immediately after that decision, he reversed it. In other words, he said there had to be a trial on the question of life or death, a new jury trial. The prosecution immediately appealed it, so thus the death penalty remained in effect. Mumia remains on death row, where he sits today, as we’re here in this nice studio.

And the court started out yesterday just ripping into the prosecutor. He had the opening comments, because he’s the one who initially appealed. Then we cross-appealed. And they just could not understand how one could logically find that what the judge did in this case in instructing the jury would pass muster with the U.S. Constitution. So the court seemed very troubled by that.

What we’re interested in are the other issues. Of course, I do not want my client to be executed. I do not want to have to go and watch my friend, who has first asked me to represent him in 1986, 21 years ago — I do not want to lose him. But I want a new trial for him. And at that trial — I’ve won countless murder cases through the years — this case deserves an acquittal. I want him to go home to his family.

JUAN GONZALEZ: Now, in terms of the move from here, the court — you expect a decision sometime in the next few months?

ROBERT BRYAN: Yes. And there’s really no way of predicting. I can only give a guess, a guesstimate, not even an estimate. I would predict that we would probably have a decision in 45 to 90 days.

Now, I just received an email last evening from the court, which is — I’ve never had this happen in the hundreds of death penalty cases I’ve handled through the years, in which they want us now to order transcripts of the hearing. Now, this isn’t a trial. This is before a U.S. Court of Appeals three-judge panel. And so, I will deal with that later today. So they actually want transcribed — I don’t know why they’d want to read what I had to say, but maybe my associates, maybe they want to see what they had to say. But they want transcripts of the hearing, which is unusual in a case at this stage.

JUAN GONZALEZ: And it was also a unusual that they allowed the NAACP to actually argue an amicus brief.

ROBERT BRYAN: Yeah, and one of the first things I did when I — even though Mumia asked me to represent him in 1986, and I turned him down; I was just too busy with other cases — when I finally took over the case — he came back to me four-and-a-half or five years ago — one of the first things I did was, I started talking with the NAACP Legal Defense Fund here in New York, because they are very well known for their great work and particularly in racism in jury selection, which is one of our big issues.

And so, they argued — Christine Swarns of that office argued yesterday. I shared some of — and I was able to persuade the court — I filed a motion asking if they’d be able to share some of my argument time. Normally, what they would call amicus curiae, friend of the court people, organizations like the NAACP Legal Defense Fund, only submit briefs. I asked the court if they could also join me in argument, and the court granted it, which was wonderful.

And so, here I was here up arguing then, and my associate Judith Ritter, who’s a law professor, argued. And she argued strictly on the death penalty issue. And then the NAACP Legal Defense Fund was able to argue. And then I wrapped up. I argued twice. But it was marvelous to have them join us. So I think it indicates the concern this court has. They seem to be trying to grapple with trying to do the right thing. Only time will tell. But also the National Lawyers Guild filed an amicus curiae brief. They did not argue yesterday, because we just didn’t have enough time.

AMY GOODMAN: Ed Rendell, the governor of Pennsylvania, was the DA at the time in 1982 —


AMY GOODMAN: — when Mumia Abu-Jamal was tried. His wife is a judge on the Third Circuit?

ROBERT BRYAN: But she recused herself, disqualified herself. She does in every case down in Philadelphia, so that was a non-issue. The prosecution tried to use that red herring to get rid of this court, and, of course, the court slapped them down and rejected that. She always steps aside in these type of cases.

AMY GOODMAN: Mumia Abu-Jamal was not at the hearing yesterday?

ROBERT BRYAN: No, unfortunately, because it wasn’t a trial.

AMY GOODMAN: How is he doing?

ROBERT BRYAN: I talked with him at length, Amy, last night, and he was very humble about what happened yesterday. And his comments to me — and, incidentally, he wanted me to say hello to both of you this morning — his comments to me was, “You know what I want, Robert: people to understand that this is not about me, Mumia Abu-Jamal. This is about everybody on death row around the world. This is about all political prisoners around the world. And I hope that, through what the court does in this case, it will help other people.” It’s a typical Mumia comment and attitude, and he’s very humble about his position in this.

JUAN GONZALEZ: And also, for some of our listeners or viewers who may not be as familiar with Mumia’s case, how would you estimate the impact of his case — given the virtual blackout that you have in the commercial media of the Mumia Abu-Jamal case, what is the impact of this case around the world?

ROBERT BRYAN: Well, the impact in commercial media, as we’re speaking today, has been shifting and changing. I’ve worked hard to try to bring it to everybody, the message in this case. But it’s a worldwide issue, Mumia Abu-Jamal. I have given a number of talks in Paris, in various places in France. I spoke to 2,500 people in January in Berlin, Germany. And there’s world interest, standing ovation at the end of all of these talks. And it’s not about me. It’s not about Mumia, as he keeps reminding me. It’s about him as a symbol in the fight against the death penalty.

And you have to remember that he’s unique in the world, because Mumia Abu-Jamal is not just a death row prisoner, a brilliant one at that, but he is a journalist. When he was arrested, he was already known as the voice of the voiceless, and he continues from this tiny bathroom-sized cell to turn out weekly these commentaries that are read and heard by people, not only here, but around the world. And it just — there’s nothing like what’s happening with Mumia around the world. So he’s important to people everywhere.

AMY GOODMAN: Robert Bryan, I want to thank you very much for being with us. Robert Bryan is the lead attorney for Mumia Abu-Jamal, fellow of the American Board of Criminal Lawyers, former chair of the National Coalition to Abolish the Death Penalty. And we will certainly continue to follow this case. Thank you.

ROBERT BRYAN: Thank you.

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