THE LAW AGAINST THE LAW

Column Written 6/20/98
© 1998 Mumia Abu-Jamal  All Rights Reserved

If it took the White majority more than two hundred years to understand that slavery was wrong, and approximately one hundred years to realize that segregation was wrong (and many still don't understand), how long will it take them to perceive that American criminal justice is evil?
--Paul Butler "Brotherman:
Reflections of a Reformed Prosecutor",
The Darden Dilemma Ellis Cose, ed. (1997)

As long ago as 1880, the US Supreme Court, in Strauder v. West Virginia, ruled that the "defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria." Over a century later, in Batson v. Kentucky (1986), the nation's highest court had to reiterate this principle, for although a century passed by, it remains all too common for trials to be conducted before all-white, or predominantly white, juries, in cases where it appears as if, besides the defendant, only the judge's robes are black. It also shows us that no matter what the Supreme Court does, the judiciary, prosecutors, and police will do what they want to with impunity, especially when blacks are defendants. For, if Strauder was the "law" why did it need reiteration in Baston?

Strauder was ignore in American courtrooms for 106 years, just as Baston is today. As any law student knows, the practice of the law is vastly different from its theory.

Shortly after Baston was decided (in 1986) an Assistant DA in Philadelphia gave a class to DA trainees, teaching them how to violate the spirit of Baston by insuring that most blacks would be removed from the jury pool.

It's over a dozen years since Baston, and still cases are upheld where black defendant had black jurors removed for bogus reasons ­ today. What is the "Law"? What the Supreme Court says, or what DA's do? What the cases say, or what trial judges allow?

The "law" is what is allowed in real cases, in real courtrooms, daily across America, and not what is written in dry, dusty books read by hoary scholars. Seen from this perspective, Baston is still not the law, despite what books may say.

And if the process is not tainted enough, what of the consequences of such a process?
Recently, the Governor of the state which boasts a spate of Baston violations (Pennsylvania), signed Senate Bill 423 into law, and thereby enacted a statute that forbids a death penalty appeal base on:

a) claims that blacks are more likely to be executed for the same crime than whites.
b) that an indigent defendant is more likely to be executed than a rich one.
c) claims that a death sentence is excessive or disproportionate to the penalty imposed in similar cases.

It is a statement that reflects a hellish, unequal status quo that still has not changed no matter what the US Supreme Court says, and no matter how many times it says it.
It is the law of what was, what is and what may be.
©MAJ
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