Day v. Atlantic Greyhound Corporation Brief on Behalf of Appellant

    No. 02-9001

IN THE UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT

MUMIA ABU-JAMAL,
APPELLANT IN No. 02-9001 

v.
MARTIN HORN, PENNSYLVANIA DIRECTOR OF CORRECTIONS, et. al.

APPELLEE IN No. 02-9001

On Appeal from the United States District Court 
for the Eastern District of Pennsylvania

BRIEF OF AMICUS CURIAE
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
IN SUPPORT OF APPELLANT SEEKING REVERSAL, IN PART, OF 

THE DISTRICT COURT’S ORDER

Theodore M. Shaw
Director-Counsel and President 

Norman J. Chachkin 
Christina A. Swarns 
NAACP LEGAL DEFENSE & 

EDUCATIONAL FUND, INC.
99 Hudson Street, Suite 1600 
New York, N.Y. 10013 
212-965-2200 (Phone)
212-219-2052 (Fax)

Attorneys for Amicus Curiae
The NAACP Legal Defense and Educational Fund, Inc.



STATEMENT OF CORPORATE DISCLOSURE

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amicus 

curiae fdes the following statement of disclosure: The NAACP Legal Defense & 

Educational Fund, Inc., is a nonprofit 501(c)(3) corporation and is not a publicly held 

company that issues stock.

i



TABLE OF CONTENTS

Statement of Corporate Disclosure......................................................................  j

Table of Contents .............................................................................................  jj

Table of Authorities.........................................................................................  jjj

Interest of Amicus ...........................................................................................  1

Argument.......................................................................................................... 2

A. The Promise of Batson: Real Inquiry into Real Suspicion of
Discrimination.........................................................................................2

B. Mr. Abu-Jamal Has Set Forth a Prima Facie Case of
Discrimination in Jury Selection ........................................................ 12

1. The Racial Overtones in Mr. Abu-Jamal’s C a s e ...................12

2. The Conduct of the Trial Prosecutor..................................... 17

3. The Historical Conduct of the Philadelphia County District
Attorney’s Office ......................................................................18

Conclusion............................................................................................................ 20

ii



TABLE OF AUTHORITIES

FEDERAL CASES

Alexander v. Louisiana, 405 U.S. 625 (1972)......................................................1? 8

Avery v. Georgia, 345 U.S. 559 (1953).................................................................... 4

Batson v. Kentucky, 476 U.S. 79 (1986)........................................................passim

Bronshtein v. Horn, 404 F.3d 700 (3d Cir. 2005).................................................. 11

Carter v. Jury Commission, 396 U.S. 320 (1970) ....................................................1

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991)............................. 1

Georgia v. McCollum, 505 U.S. 42 (1992)........................................................  1,16

Ham v. South Carolina, 409 U.S. 524 (1973)....................................................1,13

Holloway v. Horn, 355 F.3d 707 (3d Cir. 2004)................................................ 8, 11

Johnson v. California, 125 S.Ct. 2410 (2005) ............................................ 1, 10, 11

Johnson v. Love, 40 F.3d 658 (3d Cir. 1994) ........................................................  21

Miller-El v. Cockrell, 537 U.S. 322 (2003)................................................................ 1

Miller-El v. Dretke, 125 S.Ct. 2317 (2005)......................................................passim

Powers v. Ohio, 499 U.S. 400 (1991)..................................................................  3, 5

Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995).......................................  12, 14, 15

Strauderv. West Virginia, 100 U.S. 303 (1879)......................................................3

Swain v. Alabama, 380 U.S. 202 (1965)........................................................passim

iii



Turner v. Fouche, 396 U.S. 346 (1970) .................................................................... 1

Turner v. Murray, 476 U.S. 28 (1986) ..................................................................  16

U.S. v. Clemmons, 892 F.2d 1153 (3d Cir. 1989)......................................................8

U.S. v. Clemons, 843 F.2d 741 (3d Cir. 1988) .................................................. 6, 11

U.S. v. Pearson, 448 F.2d 1207, 1217 (5th Cir. 1971)............................................6

Wilson v. Beard, 426 F.3d 653 (3d Cir. 2005) ................................... 1, 8, 9, 19, 20

STATE CASES

Commonwealth v. Henderson, 497 Pa. 23 (1981) ................................................ 19

NEWSPAPER ARTICLES

Stephen Braun, Accused Killer a Man o f Many Sides,
Philadelphia Daily News, December 9,1981 ..................................................14

Jim Davis, Witnesses Give Conflicting Accounts o f Actual Shooting,
Philadelphia Tribune, December 11, 1981........................................................13

Joyce Gemperlein, Abu-Jamal’s Bail Appeal Slated to be Heard
Today, Philadelphia Inquirer, Januaiy 22, 1982 ................................... 13 (n. 9)

Joyce Gemperlein, Abu-Jamal is Denied Information on Witnesses,
Philadelphia Inquirer, March 19, 1982 ................................................ 13, 14, 15

Joyce Gemperlein, Higher Bail Sought for Abu-Jamal,
Philadelphia Inquirer, Januaiy 10, 1982 ................................................13 (n. 9)

Joyce Gemperlein and Robert J. Rosenthal, Abu-Jamal Shot Officer in Back,
Witness Says, Philadelphia Inquirer, January 9, 1982 ................................... 16

IV



Christopher Hepp, The Accused[’s] Friends Can’t Fathom ‘Brilliant’ 
Newsman as Murder Suspect, Philadelphia Daily News,
December 10, 1981 ..................................... 13, 14, 15

Terry E. Johnson and Michael A. Hobbs, The Suspect: One Who Raised
His Voice, Philadelphia Inquirer, December 10, 1981 .......................13, 14, 15

Marc Kaufman, Abu-Jamal Selection o f Jurors Halted,
Philadelphia Inquirer, June 10,1982 ................................................................  14

Robert J. Terry and Michael A. Hobbs, Policeman Shot to Death: Radio
Newsman Charged, Philadelphia Inquirer, December 10, 1981.......... 13 (n. 9)

Robert J. Terry and Terry E. Johnson, Chamber Gives Slain Officer’s
Wife $1,000, Philadelphia Inquirer, December 11,1981 ...............................15

Frederic N. Tulsky, Officers Say Abu-Jamal Hit a Pole,
Philadelphia Inquirer, June 4, 1982 ..................................................................  16

Norris P. West, Jamal Says His Defense is Hindered,
Philadelphia Tribune, April 23, 1982 ................................................................ 15

OTHER AUTHORITIES

David C. Baldus et al., The Use o f Peremptory Challenges in Capital Murder Trials: 
A Legal and Empirical Analysis, 3 U. Pa. J. CONST. L. 3 (2001)...........................3

Congressional Research Service, Library of Congress, The Constitution o f the 
United States o f America: Analysis and Interpretation: Annotations o f Cases 
Decided by the Supreme Court o f the United States, Sixth Amendment- 
Rights o f Accused in Criminal Prosecutions at 1417 (Johnny H. Killian &
George A. Costello eds., 1992)................................................................................ 7



Interest of Amicus'

The NAACP Legal Defense and Educational Fund, Inc. (LDF) is a non-profit 

corporation formed to assist African Americans in securing their rights by the 

prosecution of lawsuits. LDF has a long-standing concern with the influence of racial 

discrimination on the criminal justice system in general, and on jury selection in 

particular. We represented the defendants in, inter alia, Swain v. Alabama, 380 U.S. 

202 (1965), Alexander v. Louisiana, 405 U.S. 625 (1972) and Ham v. South 

Carolina, 409 U.S. 524 (1973); pioneered the affirmative use of civil actions to end 

jury discrimination, Carter v. Jury Commission, 396 U.S. 320 (1970), Turner v. 

Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae in Miller-El v. Dretke, 

125 S.Ct. 2317 (2005), Johnson v. California, 125 S.Ct. 2410 (2005), Miller-El v. 

Cockrell, 537 U.S. 322 (2003), Batson v. Kentucky, 476 U.S. 79 (1986), Edmonson 

v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991), and Georgia v. McCollum, 505 

U.S. 42 (1992). In addition to our jury discrimination work in the United States 

Supreme Court, LDF was counsel of record in Wilson v. Beard, 426 F.3d 653 (3d Cir. 

2005). Given its expertise, FDF believes its perspective would be helpful to this 

Court in resolving the issues presented in this case.

1 All parties have consented to the filing o f  this brief. Counsel for Appellant, Mumia Abu-Jamal, Robert R. 
Bryan, and Counsel for Appellee, the Commonwealth o f  Pennsylvania, Hugh Burns, have provided undersigned counsel 
with letters attesting to their consent.

1



ARGUMENT

Abu-Jamal v. Horn asks this Court to determine whether Batson v. Kentucky, 

476 U.S. 79 (1986), requires a court confronted with evidence raising a genuine 

suspicion ot intentional discrimination in the exercise of peremptory challenges to 

inquire into the motivations behind the challenged strike(s) or whether, instead, such 

an examination can only be triggered by actual proof of discrimination. Because the 

Batson three-part test was developed to ameliorate the logistical and practical 

difficulties of proving discriminatory intent, Batson clearly requires the former. In 

order for Batson's promise to be realized, courts facing real indications of 

discriminatory intent must make a genuine inquiry into the motivations behind 

challenged strike(s) in order to expose and eliminate discrimination injury selection.

Because Mr. Abu-Jamal’s case presents an abundance of evidence of 

discriminatory intent, the District Court erred in deferring to the Pennsylvania courts’ 

findings that Mr. Abu-Jamal failed to set forth a prima facie case of discrimination 

under Batson. This Court should reverse.

A. The Promise of Batson: Real Inquiry into Real Suspicion of 
Discrimination.

The United States Supreme Court has long condemned racial discrimination 

in jury selection. Indeed, “[f]or over a century, [the Supreme Court] has been

2



unyielding in its position that a defendant is denied equal protection of the laws when 

tried before a jury from which members of his or her race have been excluded by the 

State’s purposeful conduct.” Powers v. Ohio, 499 U.S. 400, 405 (1991). The 

Supreme Court has explained that intentional discrimination harms the defendant on 

trial, the excluded juror, and the community-at-large. The defendant is harmed 

because s/he is “denie[d]. . . the protection that a trial by jury is intended to secure” 

-  the “right[s] under the Fourteenth Amendment to ‘protection of life, and liberty 

against race or color prejudice.”’Ratoon, 476 U.S. at 86-87 (quoting Strauder v. West 

Virginia, 100 U.S. 303, 309 (1879)). The excluded juror suffers because exclusion 

from jury service “is practically a brand upon them, affixed by the law, an assertion 

of their inferiority, and a stimulant to that race prejudice which is an impediment to 

securing to individuals of the race that equal justice which the law aims to secure to 

all others.” Strauder, 100 U.S. at 308. The entire community is negatively impacted 

by discriminatory jury selection because “[w]hen the government’s choice of jurors 

is tainted with racial bias, that ‘overt wrong. . .  casts doubt over the obligation of the 

parties, the jury, and indeed the court to adhere to the law throughout the trial,’

[it] ‘invites cynicism respecting the jury’s neutrality’ and undermines public 

confidence in adjudication.” Miller-El v. Dretke, 125 S.Ct. 2317, 2324 (2005) 

(quoting Powers, 499 U.S. at 412; citing Georgia v. McCollum, 505 U.S. 42, 49

3



(1992)).

In working to eradicate discrimination injury selection, the Supreme Court has 

focused on the discriminatory use of peremptory challenges. Although the 

peremptory challenge has long been recognized as a “means of assuring the selection 

of a qualified and unbiased jury,” Batson, 476 U.S. at 91 (citing Swain v. Alabama, 

380 U.S. 202, 219 (1965)), the Court has acknowledged that it also “constitute^] a 

jury selection practice that permits ‘those to discriminate who are of a mind to 

discriminate.’” Id. at 96 (quoting A very v. Georgia, 345 U.S. 559, 562 (1953)). The 

Court has therefore “sought to accommodate the prosecutor’s historical privilege of 

peremptory challenge free of judicial control, and the constitutional prohibition on 

exclusion of persons from jury service on account of race.” Batson, 476 U.S. at 91 

(citing Swain, 380 U.S. at 214-20, 222-24).

To strike the appropriate balance between these often competing interests, the 

Court has struggled with determining when a prosecutor accused of exercising 

peremptory challenges in a racially discriminatory manner should be required to 

articulate the reasons underlying the use of such challenges and, more specifically, 

how much evidence of discrimination a petitioner must present in order to trigger 

such an inquiry. The resolution of this question is critical: if a petitioner claiming 

discrimination is required to satisfy an extremely high evidentiary burden, the

4



integrity of the peremptory challenge will be preserved but unlawful discrimination 

will go undetected. If, on the other hand, petitioners need only satisfy an extremely 

low evidentiary burden, purposeful discrimination will be exposed but the peremptory 

challenge will be gutted. The Supreme Court’s decisions in Swain, and Batson (and 

its progeny) exemplify its struggle to strike the right balance. These cases also 

explain how and why the Court has concluded that petitioners must not face 

insurmountable barriers to the resolution of real claims of discrimination and that 

courts confronted with legitimate indicia of discrimination must inquire into the 

motives underlying challenged peremptory strikes to determine whether 

discrimination is at work.

In Swain, the Supreme Court tried for the first time “to reconcile the command 

of racial neutrality injury selection with the utility, and the tradition, of peremptory 

challenges.” Powers, 499 U.S. at 405. Although it “declined to permit an equal 

protection claim premised on a pattern of jury strikes in a particular case, [the Court] 

acknowledged that proof of systematic exclusion of black persons through the use of 

peremptories over a period of time might establish an equal protection violation.” Id. 

Specifically, the Court held that a petitioner challenging the allegedly discriminatory 

exercise of a prosecutor’s peremptory challenges must demonstrate that

the prosecutor in a county, in case after case, whatever the

5



circumstances, whatever the crime and whoever the defendant or the 
victim may be, is responsible for the removal of Negroes who have been 
selected as qualified jurors by the jury commissioners and who have 
survived challenges for cause, with the result that no Negroes ever serve 
on petit juries . . . .

Swain, 380 U.S. at 223. Practically speaking, the Swain decision meant that 

peremptory challenges were shielded from all review unless and until a petitioner 

claiming discrimination was able to carry the very substantial burden of 

“investigating], over a number of cases, the race of persons tried in the particular 

jurisdiction, the racial composition of the venire and petit jury, and the manner in 

which both parties exercised their peremptory challenges.” Batson, 476 U.S. at 92 

n. 17 (citing U.S. v. Pearson, 448 F.2d 1207, 1217 (5th Cir. 1971)). Thus, the Swain 

court erected an extremely high threshold for challenging potentially discriminatory 

peremptory strikes.

In the years that followed, it became clear that Swain’’s burden of proof was 

“crippling,” Batson, 476 U.S. at 92, “unworkable,” Miller-El, 125 S.Ct. at 2324, and, 

ultimately, an impediment to the discovery and elimination of racial discrimination 

in jury selection. Indeed, “[i]n the two decades following Swain ‘almost no other 

defendants . . .  [were able to meet Swain’s] standard of proof.”’ U.S. v. Clemons, 843 

F.2d 741, 745 (3d Cir. 1988) (quoting McCray v. Abrams, 750 F.2d 1113, 1120 (2d

6



Cir. 1984)).2 As a result, after Swam, the discriminatory “[mjisuse of the peremptory 

challenge to exclude black jurors [became] common and flagrant,” Batson, 476 U.S. 

at 103 (Marshall, J., concurring), and “prosecutors’ peremptory challenges [were] 

largely immune from constitutional scrutiny.” Batson, 476 U.S. at 92-93.3 Thus, 

although Swain technically created a mechanism for remedying purposeful 

discrimination in the exercise of peremptory challenges, its extremely high threshold 

burden rendered its promise illusory. Criminal defendants, excluded jurors and the 

community-at-large therefore continued to suffer from the deleterious effects of racial 

discrimination in the exercise of peremptory challenges.

Given its patent ineffectiveness, in 1986 the Supreme Court re-evaluated 

Swain. Relying on the Court’s historical commitment to eradicating racial 

discrimination injury selection, the evolution of its equal protection jurisprudence,4

2
"See also Congressional Research Service, Library o f  Congress, The Constitution o f  the United States o f  

America: Analysis and Interpretation: Annotations o f  Cases Decided by the Supreme Court o f  the United States, Sixth 
Amendment-Rights o f  A ccused  in Criminal Prosecutions  at 1417 (Johnny H. Killian & George A. Costello eds., 1992), 
a ls o  a v a i l a b le  as  S. D o c .  N o . 1 0 3 -6 ,  1 0 3 rd C o n g .  ( I s1 S ess .  1 9 9 2 ) ,  a v a i l a b l e  at
http://www.gpoaccess.gov/constitution/pdf7con017.pdf, (“Swain . . . posited so difficult a standard o f  p roof  that 
defendants could seldom succeed ); James O. Pearson, Jr., Use o f  Peremptory Challenge to Exclude from Jury  Persons  
Belonging to a Class or Race, 79 A.L.R.3d 14, 2b (1979) (“ In all of  the cases involving [the Swain  Standard] thus far.
. .no defendant has yet been successful in proving to the court's satisfaction an invidious discrimination by the use o f  the 
peremptory challenge against blacks over a period of time.” ).

3 See also Batson, 476 U.S. at 101 (White, J., concurring) (in the two decades that folio wed Swain, “ the practice 
o f  peremptorily eliminating blacks from petit juries in cases with black defendants remainfed] widespread.”).

4
See, e.g., Batson,  4 7 6 U .S .a t9 3  (The Swain  testis “inconsistent with standards that have been developed since 

Swain for assessing a prima facie case under the Equal Protection Clause.”).

7

http://www.gpoaccess.gov/constitution/pdf7con017.pdf


and the continuing abuse of the peremptory challenge system post-SVram,5 in Batson 

the Supreme Court “tailored a new test under which defendants can more effectively 

protect themselves against the discriminatory use of peremptory challenges.” U.S. v. 

Clemmons, 892 F.2d 1153, 1 155 (3d Cir. 1989).

Because the Batson court “recognized the difficulty defendants will often have 

in showing intentional discrimination,” Wilson v. Beard, 426 F.3d 653, 666 (3d Cir. 

2005), it “repudiated] . . .  the evidentiary burden that it had previously placed on 

defendants in making an equal protection claim.” Holloway v. Horn, 355 F.3d 707, 

720 (3d Cir. 2004). Instead, the Court held that “the defendant may establish a prima 

facie case ‘in other ways than by evidence of long-continued unexplained absence’ 

of members of his race ‘from many panels.’” Batson, 476 U.S. at 95 (quoting Cassell 

v. Texas, 339 U.S. 282, 290 (1950)). The Court declared that “[w]hen circumstances 

suggest the need, the trial court must undertake a ‘factual inquiry’ [into allegations 

of discrimination] that ‘takes into account all possible explanatory factors’ in the 

particular case.” Id. (quoting Alexander v. Louisiana, 405 U.S. 625, 630 (1972)). 

Specifically, the Batson court held that a petitioner seeking to prove intentional 

discrimination in the exercise of peremptory challenges must

5See, e.g., Batson, 476 U.S. at 99 (“The reality of practice, amply reflected in many state- and federal-court 
opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black 
jurors.”).

8



[first] make out a prima facie case “by showing that the totality of the 
relevant facts gives rise to an inference of discriminatory purpose.” 
Second, once the defendant has made out a prima facie case, the “burden 
shifts to the State to explain adequately the racial exclusion” by offering 
permissible race-neutral justifications for the strikes. Third, “if a race- 
neutral explanation is tendered, the trial court must then decide 
whether the opponent of the strike has proved purposeful racial 
discrimination.”

Wilson, 426 F.3d at 666 (quoting Johnson v. California, 125 S.Ct. 2410, 2416 

(2005)). With this decision, therefore, the Court sought to create an accessible means 

of addressing discrimination in jury selection.

In order to ensure that the Batson test did not suffer from the infirmities of 

Swain, the Court explicitly stated that petitioners claiming discrimination should not 

be saddled with a heavy evidentiary burden. Specifically, the Court declared that a 

such a petitioner need only

show that he is a member of a cognizable racial group, and that the 
prosecutor has exercised peremptory challenges to remove from the 
venire members of the defendant’s race. Second, the defendant is 
entitled to rely on the fact, as to which there can be no dispute, that 
peremptory challenges constitute a jury selection practice that permits 
“those to discriminate who are of a mind to discriminate.” Finally, the 
defendant must show that these facts and any other relevant 
circumstances raise an inference that the prosecutor used that practice 
to exclude the veniremen from the petit jury on account of their race.
This combination of factors in the empaneling of the petit jury, as in the 
selection of the venire, raises the necessary inference of purposeful 
discrimination.

Batson, 476 U.S. at 96 (quoting Avery, 345 U.S. at 562) (internal citations omitted).

9



A court presented with such prima facie evidence of discrimination is required to take 

action: it must obtain a race-neutral reason for the State’s challenged strikes and 

decide whether the defendant has proven purposeful discrimination. Batson, 476 U.S. 

at 97-98. By directing that courts respond to indicia of discrimination by conducting 

a targeted inquiry and making (and explaining the basis for) reviewable findings on 

the issue, Batson promised that courts would “enforce[] the mandate of equal 

piotection and further[] the ends of justice” to fill the vacuum that was created by 

Swain. Batson, 476 U.S. at 99.

In the years since Batson, the Supreme Court has maintained its commitment 

to keeping the prim a facie case burden low in order to expose and eliminate the 

discriminatory use of peremptory challenges. Thus, in Johnson v. California, 125 

S.Ct. 2410 (2005), the Supreme Court reaffirmed the principle that the prima facie 

case burden is not and cannot be unduly heavy and that courts confronted by a prima 

facie case of discrimination must inquire into the motives behind the challenged 

strikes to ensure that discrimination is not at work.

In Johnson, the Supreme Court reversed the California Supreme Court’s 

holding that Batson's prima facie case required a petitioner to “show that it is more 

likely than not that the other party’s peremptory challenges, if unexplained, were 

based on impermissible group bias.” Id. at 2413. Specifically, the Court held that

10



[w]e did not intend the first step to be so onerous that a defendant would 
have to persuade the judge -  on the basis of all the facts, some of which 
are impossible for the defendant to know with certainty -  that the 
challenge was more likely than not the product of purposeful 
discrimination. Instead, a defendant satisfies the requirements of 
Batson's first step by producing evidence sufficient to permit the trial 
judge to draw an inference that discrimination has occurred.

Id. at 2417. The Court emphasized that theprima facie case burden must be kept low 

in order to honor Batson's, goal of protecting defendants, excluded jurors, and the 

community-at-large from the harm of discrimination injury selection:

The Batson framework is designed to produce actual answers to 
suspicions and inferences that discrimination may have infected the jury 
selection process. The inherent uncertainty present in inquiries of 
discriminatory purpose counsels against engaging in needless and 
imperfect speculation when a direct answer can be obtained by asking 
a simple question.

Johnson, 125 S.Ct. at 2418.

Thus, the promise of Batson is that courts confronted with real evidence of 

discrimination in the use of peremptory challenges will take prompt action to protect 

the interests of defendants, excluded jurors and the greater community by inquiring 

into the motives underlying challenged strikes and, where appropriate, remedy acts 

of unlawful discrimination.6

In light o f  B a tson’s history and purpose, this Court has similarly rejected interpretations o f  the prima facie 
case requirement which are unduly burdensome. See, e.g., Bronshtein v. Horn,  404 F.3d 700, 723 (3d Cir. 2005) 
(holding that the Pennsylvania Supreme Court’s requirement that a petitioner seeking to establish a prima fa c ie  case of 
discrimination create a record o f  "the race o f  the jurors who served and the race o f  the jurors acceptable to the 
[prosecution] who were stricken by the defense” was contrary to Batson) (internal quotations and citations omitted); 
Holloway  v. Horn, 355 F.3d at 728(same); Clemons,  843 F.2d at 746 (rejecting the State’s argument that there should



B. Mr. Abu-Jamal Has Set Forth a Prima Facie Case of Discrimination
in Jury Selection.

When viewing the facts of Mr. Abu-Jamal’s case through the lens of Batson's 

true history and purpose, it becomes abundantly clear that he has set forth a prima 

facie case of discrimination. As detailed below and in the Brief o f Appellee and 

Cross-Appellant, Mumia Abu-Jamal, an appropriately context-sensitive, holistic 

examination of the facts and circumstances surrounding Mr. Abu-Jamal’s voir dire 

proceedings makes clear that there is more than “sufficient” evidence “to permit the 

trial judge to draw an inference that discrimination has occurred.” Johnson, 125 S.Ct. 

at 2417.

1. The Racial Overtones in Mr. Abu-Jamal’s Case.

This was unquestionably a racially charged case. Mr. Abu-Jamal is African 

American and the victim was white. See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1168 

(3d Cir. 1995) (“[t]he nature of the crime and its racial configuration -  

[a black defendant and white victim] -  contribute significantly to [the] prima facie 

case.”). Additionally, Mr. Abu-Jamal was a prominent African-American community

be “some magic number or percentage to tr igger a Batson  inquiry” because such a test “would short-circuit the fact- 
specific determination expressly reserved for trial judges” and “Batson  does not require that the government adhere to 
a specific mathematical formula in the exercise o f  peremptory challenges”)(internal citations omitted).

12



activist. See NT 7/26/95 at 39, 41,46-47.7 Furthermore, in the months between the

incident and the trial, the local media continually emphasized the racial aspects of the

case.8 Specifically, newspapers highlighted the following facts:

• Mr. Abu-Jamal Was an African-American Community Activist and a 
Member of and/or Advocate for African-American Organizations. See
Stephen Braun, Accused Killer a Man o f Many Sides, Philadelphia Daily 
News, December 9, 1981, at 4 (Mr. Abu-Jamal was the immediate past 
president of the Philadelphia Chapter of the Association of Black Journalists; 
he was “close to members of the MOVE organization” and occasionally served 
as their spokesman; he had been the communications secretary for the 
Philadelphia chapter of the Black Panthers; in December 1970, he was 
suspended from Benjamin Franklin High School for distributing literature 
“calling for ‘black revolutionary student power.”’);9 Terry E. Johnson and 
Michael A. Hobbs, The Suspect: One Who Raised His Voice, Philadelphia 
Inquirer, December 10, 1981, at A 1 (Mr. Abu-Jamal was “a gadfly among 
journalists and easily recognizable because of his . . . revolutionary politics;” 
he was associated with “militant groups;” he “was involved in numerous black 
political organizations and was an active supporter of MOVE, a radical back- 
to-nature movement;” he had been a member of the Black Panther Party); Jim 
Davis, Witnesses Give Conflicting Accounts o f Actual Shooting, PHILADELPHIA 
Tribune, December 11, 1981, at 1 (“Jamal, in news media accounts dwelling 
on his teen-aged years, has been portrayed as a Black militant, stressing his ties 
to the former Black Panther Party.”); Christopher Hepp, The Accused[’s]

1 See, e.g., Ham v. South Carolina,  409 U.S. 524 (1973) (noting that the defendant’s identity as a prominent 
African-American civil rights activist is a critical factor for determining whether race is a constitutionally significant issue 
in a case).

g
Numerous venirepersons acknowledged exposure to the press coverage o f  Mr. Abu-Jam al’s case. See, e.g., 

NT 6/7/82 at 171; NT 6/8/82 at 2.15, 2.42, 2.67, 2.80, 2.94, 2.116, 2.135, 2.156; NT 6/9/82 at 3.55, 3.72, 3.89, 3.97, 
3.131, 3.144, 3.195, 3.197; NT 6/10/82 4 .6 1 ,4 .1 0 9 ,4 .1 9 9 ;  NT 6/1 1/82 at 28, 39 ,5 5 ,  80; NT 6/16/82 at 301 ,317 ,  345, 
4 7 1 ,4 8 5 .

9
See also Robert J. Terry, Michael A. Hobbs, Policeman Shot to Death: Radio Newsman Charged , 

P hiladelphia Inqui re r , D ecember 10, 1981, at A l ;  Joyce Gemperlein, H igher Bail Sought fo r  Abu-Jamal,  
P hi ladelphia Inqui re r , January 10, 1982, at B l ;  Joyce Gemperlein, A b u -Ja m a l’s Bail Appeal Slated to be Heard  
Today, PHILADELPHIA INQUIRER, January 22, 1982, at B5.

13



Friends Can t Fathom Brilliant ’Newsman as Murder Suspect, Philadelphia 
Daily News, December 10, 1981, at 1 (Mr. Abu-Jamal “showed deep 
compassion and understanding of the city’s minority community;” he was 
“communications secretary for the Philadelphia chapter of the Black Panthers;” 
while at Benjamin Franklin High School, he “helped lead an unsuccessful 
student effort to change the school’s name to Malcolm X High School.”)

As a Reporter, Mr. Abu-Jamal Worked for African-American Media 
Outlets And/or Focused on African-American Issues. See Braun, supra 
(Mr. Abu-Jamal “often reported on housing, prisons and other stories involving 
poor people and minorities;” he “worked as a stringer for radio station 
WDAS;” when working for WUHY, he “covered black affairs;” he later 
worked as a consultant to WUHY to prepare “a special report on MOVE for 
the stations afternoon talk show, ‘Fresh Air;’” his “radio career began a t . 
WRTI-FM, where, through 1973, he did a commentary show on black 
affairs.”);10 Hepp, supra (while working with WUHY, Mr. Abu-Jamal, “often 
reported on housing, prisons and other stories involving poor people and 
minorities;” he “distinguished himself reporting on the North Philadelphia 
reaction to the pope’s arrival in 1979 and in continuing coverage of the MOVE 
organization;” he worked for WDAS).

Mr. Abu-Jamal Wore His Hair in Dreadlocks. See Braun, supra (“Jamal, 
like many Rastafarians, grew his hair in long, spiky dreadlocks”);11 Johnson 
and Hobbs, supra (“Once, when asked about his hair style, Jamal said: ‘I wear 
it as a conscious African. I wear it to show oneness with the first man, an 
African, who wore his hair this way.’”); Hepp, supra (“Jamal surprised other 
reporters by showing up with his hair braided in the familiar dreadlock style 
of MO VE members.”); Marc Kaufman, Abu-Jamal Selection o f Jurors Halted, 
Philadelphia Inquirer, June 10,1982, at B4 (“Several prospective jurors left 
the courtroom Tuesday saying they were too upset and afraid to serve after 
being questioned by Abu-Jamal, who wears his hair in the dreadlocks style of 
the MOVE sect.”).

l0See also Terry and Hobbs, supra. 

11 See also Terry and Hobbs, supra.

14



Mr. Abu-Jamal Demonstrated Interest in and/or Involvement with the 
Rastafarian Religious-Cultural Movement. See Braun, supra; Hepp, supra.

Mr. Abu-Jamal was Born Wesley Cook but Changed his Name. See
Johnson and Hobbs, supra (“Jamal, whose name at birth was Wesley Cook, 
adopted the African name after leaving the Black Panther Party in 1970.”).

Prior to his Arrest, Mr. Abu-Jamal Made Public Statements Regarding 
the Rights and Experiences of African Americans. See Johnson and Hobbs, 
supra (Mr. Abu-Jamal was dismissed from Benjamin Franklin High School 
“for circulating pamplets [sic] calling for ‘black revolutionary student power’”; 
“During the 1979-1980 MOVE trial for the murder of police officer James 
Ramp, Jamal complained that police harassed him when he entered the heavily 
guarded courtroom because his dreadlocks gave him the appearance of a 
MOVE member. You know how they treat you,’ he said angrily to another 
reporter at the time”; “In a 1970 interview, Jamal said: ‘Black people are facing 
the reality that the Black Panther Party has been facing: Political power grows 
out of the barrel of a gun.”); Hepp, supra (Mr. Abu-Jamal had been criticized 
for working “to bring more black programming to WRTI.”).

African-American Organizations Established and/or Supported a Defense
Fund for Mr. Abu-Jamal. See Terry and Hobbs, supra (the Association of 
Black Journalists established a defense fund for Mr. Abu-Jamal); Robert J. 
Terry and Terry E. Johnson, Chamber Gives Slain Officer’s Wife $1,000, 
Philadelphia Inquirer, December 11,1981, at B 1 (“Defense fund committee 
organizers said that among the groups participating are the Association of 
Black Journalists, the National Black Independent Political Party, the National 
Lawyers Guild, the Black Teachers Caucus of the Philadelphia Federation of 
Teachers and the Committees United Against Police Abuse.”); Gemperlein, 
supra (January 10,1982); Norris P. West, Jamal Says His Defense is Hindered, 
Philadelphia Tribune, April 23, 1982, at 1 (“A benefit concert, featuring 
Temple University instructor and poet Sonia Sanchez, Black Sheep and a 
member of the Last Poets raised funds for Jamal’s defense. Black Sheep, a 
Philadelphia oriented reggae group, asserted the defense committee’s goals by 
singing their recently composed song, ‘Justice for brother Jamal.’”).

15



Members of the Philadelphia-Based, African-American Organization, 
MOVE, Attended the Court Proceedings and Supported Mr. Abu-Jamal’s 
Defense. See Joyce Gemperlein, Abu-Jamal is Denied Information on 
Witnesses, Philadelphia Inquirer, March 19,1982, at B3; Joyce Gemperlein 
and Robert J. Rosenthal, Abu-Jamal Shot Officer in Back, Witness Says, 
Philadelphia Inquirer, January 9, 1982, at A1 (“Abu-Jamal’s supporters, 
many of them members of MOVE, a self-styled back-to-nature group, have 
said that he was not guilty of the shooting and that he was beaten by police 
after the shooting. . . . After the hearing, MOVE supporters in the audience 
shouted: ‘On the move!’ -  their now-familiar slogan at court hearings 
involving their members, as Abu-Jamal was led from the courtroom.”); 
Frederic N. Tulsky, Officers Say Abu-Jamal Hit a Pole, Philadelphia 
Inquirer, June 4, 1982, at D24.

Because there exists a constitutionally significant risk of race prejudice in the 

trial of an African-American defendant who, like Mr. Abu-Jamal, is prominently 

involved in race-work and “[rjacial issues . . . [are] inextricably bound up with the 

conduct of the trial,” the courts reviewing Mr. Abu-Jamal’s Batson claim had an 

obligation to be sensitive to the potential for discrimination in the prosecutor’s 

exercise of peremptory challenges. Turner v. Murray, 476 U.S. 28, 32 n.3 (1986) 

(citing Risaino v. Ross, 424 U.S. 589, 596-97 (1976)). Given this fact as well as the 

goals of Batson, the lower courts should, therefore, have erred (if at all) on the side 

of inquiring into the motivations behind the prosecutor’s suspicious peremptory 

challenges in order to assure Mr. Abu-Jamal, the members of the venire, and the 

community-at-large that Mr. Abu-Jamal’s trial was fair and that African-American 

prospective jurors were not excluded because of their race. See McCollum, 505 U.S.

16



at 49 (citing Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, 

Pei emptory Challenges, and the Review oj Jury Verdicts, 56 U. Chi. L. Rev. 153, 

195-96 (1989)) (“The need forpublic confidence is especially high in cases involving 

race-related crimes. In such cases, emotions in the affected community will 

inevitably be heated and volatile. Public confidence in the integrity of the criminal

justice system is essential for preserving community peace in trials involving race- 

related crimes.”).

2. The Conduct of the Trial Prosecutor.

The conduct of Joseph McGill, Mr. Abu-Jamal’s trial prosecutor strongly 

suggested discriminatory intent. Not only did Mr. McGill use a disproportionate 

number of his peremptory challenges to exclude African-American potential jurors,12 

he also made statements suggesting discriminatory intent.13 “If anything more is 

needed for an undeniable explanation of what was going on, history supplies it.” 

Miller-El, 125 S.Ct. at 2340. The record reveals that Mr. McGill had a personal 

history of systematically striking black jurors. As detailed in Mr. Abu-Jamal’s

~See B rie f  o f  Appellee and  Cross-Appellant, Mumia Abu-Jamal,  at 18-22 (noting that “the prosecutor struck 
71 % (10/14) o f  the blacks he had an opportunity to strike, but struck jus t 20% (5/25) 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 o f  being struck ifyou  were black 
were 2.5-to-l (10/4), but the odds o f  being struck if you were white were jus t  0/25-to-l (5/20) -  i.e., a black person’s 
odds o f  being struck were 10 times higher than someone who is white.”).

'A e e  NT 6/12/82 at 2.35 (the prosecutor indicated that he accepted an African-American juror because he 
believed that juror was “fair-minded” because she hated Mr. Abu-Jamal).

17



Habeas Petition, a survey of homicide cases tried by Mr. McGill between September 

of 1981 and October of 1983 reveal that he excluded prospective African-American 

venirepersons approximately three times as often as he excluded non-black 

prospective jurors. Specifically, Mr. McGill was 2.93 times more likely to 

peremptorily challenge African-American venirepersons than non-blacks and the 

odds that Mr. McGill would peremptorily challenge an African-American potential 

juror were 8.47 times greater than for non-black jurors. See Habeas Petition at 

465-66. Each of these factors strongly suggests discriminatory intent. See Batson, 

476 U.S. at 97 (a pattern of strikes and statements/questions by the trial prosecutor 

“may support. . .  an inference of discriminatory purpose.”); Miller-El, 125 S.Ct. at 

2325 (“[hjappenstance is unlikely to produce” a significant disparity in the use of 

peremptory challenges against African-American potential jurors).

3. The Historical Conduct of the Philadelphia County District 
Attorney’s Office.

There is also substantial evidence that the Philadelphia County District 

Attorney’s Office systematically excluded African-American prospective jurors 

through the use of peremptory challenges. A comprehensive statistical study of 

Philadelphia County death penalty cases tried between 1981 and 1997 reveals that, 

“in 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51 %

18



of black jurors and 26% of nonblack jurors.” Miller-El, 125 S.Ct. at 2341 (Breyer, 

J., concurring) (citing David C. Baldus et al., The Use o f Peremptory Challenges in 

Capital Murder Trials: A Legal and Empirical Analysis, 3 U. Pa . J. Const. L. 3, 52- 

53, 73, n. 197 (2001)). The study found that the racial disparities were more 

pronounced prior to Batson (when this jury was selected) than after. Id.

Additionally, a videotaped voir dire training by the Philadelphia County 

District Attorney s Office explicitly advocates the exclusion of African-American 

prospective jurors. See, e.g., Wilson, 426 F.3d at 656-658 (“[i]n the [training] tape, 

[the prosecutor] makes a number of highly inflammatory comments implying that he 

regularly seeks to keep qualified African-Americans from serving on juries.”).14

Finally, trial counsel’s contemporaneous accounts ofhis experiences with the 

Philadelphia District Attorney’s Office corroborate these findings. See, e.g., NT 

3/18/82 at 12 (in requesting the opportunity to voir dire the potential jurors on the 

race issues in the case, trial counsel indicated that “[i]t has been the custom and the

14
Although the videotaped training occurred some years after Mr. A bu-Jam al’s trial, this Court has concluded 

that the prosecutor at issue, Jack McMahon, utilized the techniques described in the tape for years beforehand. See 
Wilson, 426 F.3d at 669 (“M cM ahon had worked in the District A ttorney’s office for six years prior to W ilson’s [1983] 
trial. It simply defies logic to suggest that all o f  the techniques which he so forcefully advocates in the tape suddenly 
came to him during the two years between Wilson’s trial and the training session at which the tape was made.”). 
Additionally, the fact that Mr. McMahon states that other Philadelphia prosecutors routinely use their peremptory 
challenges to exclude all African-American potential jurors demonstrates that this was a widespread practice within the 
Philadelphia County District A ttorney’s Office. See Supplemental Appendix o f  Appellee and  Cross-Appellant, Mumia  
Abu-Jamal  at 237 (DATV Transcript at 56). Finally, this evidence, in combination with the trial counsel’s experience 
(detailed infra) and the contemporaneous findings o f  Pennsylvania courts, see, e.g.. Commonwealth  v. Henderson, 491 
Pa. 23, 27 (1981), strongly suggests that the use o f  peremptory challenges to exclude African-American potential jurors 
was common practice in the Philadelphia County District Attorney’s Office.

19



tradition of the District Attorney’s Office to strike each and every black juror that 

comes up peremptorily. It has been my experience since I have been practicing law, 

as well as the experience of the defense Bar, the majority of the defense Bar, that that 

occurs. ); id. ( I just finished a jury tria l. . .  where the first thirteen black jurors were 

peremptorily challenged by the district attorney.”).15

This evidence of a pattern or practice of discriminatory exercise of peremptory 

challenges by the Philadelphia County District Attorney’s Office also supports the 

inference of discrimination. See Miller-El, 125 S.Ct. at 2340 (finding a Batson 

violation by relying, in part, on evidence that “[t]he prosecutors took their cues from 

a 20-year old manual” advocating the exclusion of African-American -  and other 

minority -  potential jurors).

CONCLUSION

When the racially charged atmosphere of the trial, the conduct of the trial 

prosecutor and the pattern and practice of the Philadelphia County District Attorney’s 

Office are “viewed cumulatively^] its direction is too powerful to conclude anything 

but [that there exists an inference of] discrimination.” Miller-El, 125 S.Ct. at 2339. 

As this Court has stated:

to allow the absence of a prima facie case to be case dispositive when

15 See also NT 7/28/95 at 208.

20



the record raises serious questions about the prosecutor’s motivations 
would defeat one of Batson's principal purposes -  to provide assurance 
to the defendant and the community that criminal judgments are not 
tainted by invidious discrimination. Where the record as a whole as 
ultimately developed permits a reasonable argument that the judgment 
is so tainted, the issue of taint must be resolved; it cannot be avoided by 
a finding that the defendant failed to present a prim a facie case.

Johnson v. Love, 40 F.3d 658, 665 (3d Cir. 1994). This is exactly such a case. This

Court should find that the District Court erred in deferring to the state courts’

conclusion that Mr. Abu-Jamal did not present a prima facie case of discrimination

in the exercise of peremptory challenges and erred in failing to inquire into the true

motivations underlying these strikes.

For the foregoing reasons, amicus respectfully suggests that this Court reverse 

the district court’s decision that Mr. Abu-Jamal has not set forth a prima facie case 

of discrimination under Batson.

21



Dated: July 27, 2006

Respectfully submitted, 
THEODORE M. SHAW 
Director-Counsel and President

/s/ Christina A. Swarns_______
CHRISTINA A. SWARNS 
NORMAN J. CHACHKIN 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, NY 10013 
212-965-2200 (Phone) 
212-219-2052 (Fax)

Attorneys for Amicus Curiae

22



CERTIFICATIONS

1 ■ Certification of Bar Membership

I hereby certify that I, Christina A. Swams, am a member in good standing of 

the bar of the United States Court of Appeals for the Third Circuit.

2. Certification of Word Count

This brief complies with the type-volume limitation of Fed.R.App.P. 

32(a)(7)(B) because it contains 5673 words, excluding the parts ofthe brief exempted 

by Fed. R.App.P. 32(a)(7)(B)(iii).

This brief also complies with the typeface requirements of Fed.R.App.P. 

32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because this brief 

has been prepared in a proportionally spaced typeface using WordPerfect 9.0 in 14 

point, Times New Roman font.

3. Certification of Service

I hereby certify that I e-mailed an electronic copy of the foregoing Brief of 

Amicus Curiae The NAACP Fegal Defense & Educational Fund, Inc. in Support of 

Appellant/Cross-Appellee Seeking Reversal of the District Court’s Order, in a single 

.PDF file, to the Office of the Clerk, United States Court of Appeals for the Third 

Circuit at the following e-mail address: <electronic_briefs@ca3.uscourts.gov>.

I hereby certify that ten copies of the foregoing Brief have been deposited in

23

mailto:electronic_briefs@ca3.uscourts.gov


the United States mail, postage prepaid and properly addressed to the Office of the 

Clerk, United States Court of Appeals for the Third Circuit, 21400 United States 

Courthouse, 601 Market Street, Philadelphia, PA 19106.

I hereby certify that two copies of the foregoing brief have been deposited in 

the United States mail, postage prepaid and properly addressed, to counsel for all 

other parties in this suit, as follows:

Robert R. Bryan, Esq. Hugh Burns, Esq.
Law Offices of Robert R. Bryan District Attorney’s Office
2088 Union Street, Suite 4 Three South Penn Square
San Francisco, CA 94123 Philadelphia, PA 19107

4. Certification of Identical Compliance of Briefs

I hereby certify that the electronic and hard copies of foregoing Brief in the 

instant matter contain identical text.

24



5. Certification of Virus Check

I hereby certify that a virus check of the electronic .PDF version of the 

foregoing Brief was performed using Symantic AntiVirus, and the .PDF file was 

found to be virus free.

Dated: July 27, 2006

/s/ Christina A. Swams 
CHRISTINA A. SWARNS 
Attorney fo r  Amicus Curiae 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson St., 16lh Floor 
New York, N.Y. 10013 
212-965-2200 (Phone) 
212-219-2052 (Fax)

25