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Cathy Harris News Updates
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Wednesday, April 26, 2017


[Pnews] Report on Mumia Abu Jamal's Post-Conviction Appeal Act Hearing

Report on Mumia’s PCRA Hearing on Challenge to Appeals based on Bias of former prosecutor, then Supreme Court judge Ronald Castille, April 24, 2017

Rachel Wolkenstein, April 25, 2017

Yesterday, April 24, 2017, Mumia Abu-Jamal’s 63rd birthday was the first court hearing on the PCRA (Post-Conviction Appeal Act) petitition that was filed on August 7, 2016 by attorneys Judith Ritter and Christina Swarns. Last June the U.S. Supreme Court issued a precedent-setting decision, Williams v. Pennsylvania, 136 S.Ct. 1989 (2016), holding it is a violation of the due process right to an impartial tribunal free of judicial bias if a judge participating in a criminal appeal had “a significant personal involvement as a prosecutor in a critical decision” in a defendant’s case.

Castille was the elected District Attorney during the preparation, argument and appeal of the 1982 conviction of Mumia for murder and the death sentence to the PA Supreme Court in 1988 and to the U.S. Supreme Court in 2000. The legal remedy for this due process violation is to vacate all the denials of the Mumia’s appeals from 1998-2008, and allow Mumia a new appeal of all his legal claims of innocence, the frame-up conviction and denials of his right to trial judge who is not a self-declared racist, an unbiased jury, his right to representation of his choice and his right to self-representation and all other violations of his right to a fair trial.

On April 24 there was legal argument before Judge Leon W. Tucker, who is the supervising judge of the Philadelphia PCRA part of the Court of Common Pleas. He has been a judge since 2005; his wife, Petrese Tucker is the Chief US District Court Judge of the federal district court for the Eastern District of PA. Ronald Eisenberg, who is now a Deputy District Attorney argued for the DA’s office. He was first promoted in the DA’s office to Chief of the Appeals Division in 1986 by newly elected DA Castille. Eisenberg has been the supervising DA on all of Mumia’s cases since then. He argued the Williams case before the U.S. Supreme Court.

Christina Swarns made the legal argument for Mumia, making the essential point that Williams held that due process is violated if a judge had previously had a significant personal involvement in a critical prosecutorial decision. She stated the Williams holding applied directly to Mumia’s case, that Castille’s name as District Attorney appears on all of the DA’s appeal filings in Mumia’s case. Judge Tucker asked whether the fact that Castille signed off on the DA’s briefs was his significant personal involvement. Swarns said that there is currently no document in Mumia’s case like the one in the Williams case. (Castille authorization of seeking the death penalty against Williams.) But discovery was requested so that the DA’s memos can be check for evidence of Castille’s involvement in Mumia’s case. Tucker asked a second time about whether there is currently a document showing Castille’s personal involvement in Mumia’s case and Swarns repeated the need for discovery.

Additionally, Swarns stated that given the high profile nature of Mumia’s case and that Castille bragged about the number of people he put on death row (a number that included Mumia), Castille would have been directly involved in Mumia’s appeal. Tucker again asked whether to Swarns knowledge, without discovery, was there knowledge of Castille’s direct involvement. Swarns said that there is not, but that was the situation in Williams’ case --- the document with Castille’s signature was found only after the court ordered discovery from the prosecution.

The issue of whether or not there is “jurisdiction” for Mumia’s PCRA petition to be considered was raised by Tucker. This has to do with whether the Williams case is “retroactive,” applying to cases decided before the Williams decision. Swarns explained that it did apply because the issue in Williams was a fundamental component of due process and legal authority supported those cases as being applied to cases initially decided beforehand. Also argued was the reason Mumia’s filing was an exception to the PA law that required post-conviction challenges to be filed within one year (!) of a conviction becoming final. (In Mumia’s case that was 1991, after the U.S. Supreme Court denied to consider his appeal.) Swarns laid out the reasons Mumia case met the statutory exceptions that made his filing “timely.”

Tucker asked what the remedy would be if this petition were granted – was it the restoration of Mumia’s appellate rights. Swarns stated that this was what the Williams case required.

Eisenberg argued for the DA. Most of his argument was the position that the PCRA court couldn’t/shouldn’t consider Mumia’s petition, because the Williams case wasn’t retroactive and his case didn’t meet the “exceptions” to the timeliness provisions. Therefore, he argued, the PCRA court had no jurisidiction to consider the case. And if there is no jurisidiction, there is no discovery and no case. (There are appeals, of course.)

In the course of his argument, Eisenberg stated the timeliness restrictions came from the PA legislature concerns about the costs and work involved in re-litigating these cases. And that in Mumia’s case there were a number of appeals and many legal claims, that re-litigating them would have a huge impact on the court workload, which is why there are these restrictions. Then Eisenberg said that why, “sometime you just have to draw the line.”

Christina Swarns responded, that the standard for due process violations is that they have retroactive application. And that Mumia is entitled to the full protections and relief provided under due process. She invoked Supreme Court Justice Breyer dissenting when the death penalty was upheld in the McClesky case (where it was proven that the death penalty was imposed against African Americans 4x greater than against whites), saying this was “fear of too much justice for Mumia Abu-Jamal.)

Swarns said that this could all be resolved by the judge granting discovery of the DA’s files on Castille’s involvement in Mumia’s appeals. If there are documents showing Castille’s involvement or not, would answer this case.

Judge Tucker ended by saying that he was taking this “under advisement” and he would give his decision at a later time.

Summary comment – Judge Tucker could go any number of ways on this. He could argue fully with the DA and dismiss Mumia’s PCRA for “lack of jurisdiction.” He find jurisdiction, implicitly or explicitly, and require the DA to open its files for discovery of its preparation, argument etc. of Mumia’s appeal from1986-90 to see if there are documents indicating Castille’s involvement. Or Judge Tucker could ask from more legal arguments on any of those issues. Judge Tucker is not required to rule on any of this in any specific time period.

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