"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, March 27, 2008

Court Rejects Mumia's Batson Claim

The Third Circuit Court of Appeals upholds Wesley Cook's, aka, Mumia Abu Jamal's conviction, but remands for resentencing because of an ambiguity in one of the sentencing phase jury instructions.

The Court decisively rejected the defense's central claim that blacks were improperly excluded from the trial jury, which had two black members who voted to convict and to sentence Mumia to death.

I hope Pennsylvania pursues an appeal to the en banc Third Circuit and to the SCOTUS if necessary on the sentencing instruction issue(the PA Supreme Court found it unambiguous); failing that, they should vigorously pursue on remand a death sentence for this malicious cop killer. Hopefully they will not knuckle under to the on-going high pressure campaign from the usual academy and Hollywood leftists.

More background on this appeal and the case here.

UPDATE: Full opinion here.

UPDATE II: On reading the opinion, the Batson issue was a real stretch for Mumia on several counts: First, Batson itself was not decided until four years after the trial of this case, and although the SCOTUS ruled that Batson would retroactively apply to cases not ended when it was decided, the applicablility of Batson to those cases seems unfair when neither party could utilize their peremptories with Batson's new requirements in mind. Second, since Batson was not in force when the trial took place, there could be no contemporaneous objection by the defense (or by the prosecutor) which would have allowed for a remedy to be applied at trial (e.g., disallowing the challenged strike and seating the juror). Third, since the burden of persuasion rests on the party challenging the strike, it is their burden to present an appellate record of sufficient detail to assess the challenge. Thus, if the race of each juror answering voir dire questions was not adequately identified on the record, the challenger of the strike is hard pressed to exclude the possibility that an unidentified juror's answers to voir dire questions was in fact the challenged juror, and those answers, not the juror's race, supports the challenged strike.

The importance of a complete record for those challenging a strike is demonstrated by this passage from the 3d Circuit opinion, citing:
four missing pieces of evidence often used when evaluating whether a defendant had established a prima facie case [of discrimination under Batson]: (1) the racial composition of those jurors dismissed by the defendant; (2) the total number of jurors in the venire; (3) the racial composition of the entire venire; and (4) the number and race of those dismissed for cause...the record is fatally deficient to support a successful challenge to the Pennsylvania Supreme Court’s decision finding no prima facie case under Batson.
Again, the practice tip: perfect the record if want to make a successful Batson challenge.

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