Garden Court Chambers
57-60 Lincoln's Inn Fields
London, WC2A 3LS

Third Circuit Court of Appeals
21400 James A. Byrne
United States Court House
601 Market Street
Philadelphia, PA 19106- 1729

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 17^th 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 21^st 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,