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Now
It's been 25 years now since Philadelphia
Police Officer Daniel Faulkner was shot dead in a Center City,
Philadelphia red-light district. Since then, Faulkner has become
a rallying point for the nation's death penalty advocates. It's
been 25 years, too, since the man convicted of killing Faulkner,
Philadelphia radio journalist and former Black Panther Mumia
Abu-Jamal, was arrested for the crime at the scene. Since July
1982, Abu-Jamal has been in solitary confinement on Philadelphia's
death row, from which lonely spot he has become a world-famous
prison journalist, and a rallying point for those opposed to
capital punishment.
The debates over Abu-Jamal's
guilt or innocence have raged now for an astonishing quarter
of a century, through the presidencies of Ronald Reagan, George
H.W. Bush, Bill Clinton and George W. Bush. Battles have raged,
too, within the loose-knit group of people who have backed Abu-Jamal,
between those who argue that he is an innocent man, a political
prisoner condemned for his politics, and those who simply argue
that he never received a fair trial. Politicians at the local,
state and even federal level, many without any real knowledge
about this complex case, have prostituted themselves by pressing
for Abu-Jamal's execution, while others, sometimes equally ignorant
of the facts, have lionized him and honored him with honorary
citizenships and street names.
Whatever one's views on this
case, however, the reality is that it for the first time in 25
years, Abu-Jamal is finally going to get a chance in the second
highest court in the land to make the case that his 1982 trial
was fatally tainted by unconstitutional error, judicial bias,
race-based jury selection and prosecutorial misconduct. The reality
also is that the Third Circuit Court of Appeals, which will be
hearing arguments on Abu-Jamal's appeal early next year (barring
any unanticipated delays), could conceivably end up ordering
a new trial for Abu-Jamal--a trial that, because of better defense
counsel, a changed political climate, shifting demographics,
the deaths of some witnesses, and the likelihood of new defense
witnesses, would most likely end up setting him free, or having
him released for time served. At the same time, the same three-judge
panel hearing this appeal will also be considering a counter
appeal by the Philadelphia District Attorney's office, which
seeks to overturn a lower Federal District Court decision which
five years ago tossed out Abu-Jamal's death sentence. So at the
same time that the Third Circuit could end up giving Abu-Jamal
a new chance to prove his innocence, or at least to leave prison
a free man, it could ironically also end up sending him back
onto death row and to a date with the needle.
Let's look at the DA's appeal
first, since it's fairly simple.
In 2001, Judge William Yohn,
a former Montgomery County state judge appointed to the federal
bench by the first President Bush, found that Abu-Jamal's death
sentence had been constitutionally tainted. He ruled that the
instructions of the trial judge, the late Albert Sabo, and the
jury polling form used by Sabo, were both confusing and could
have led jurors to mistakenly assume that they could not consider
any mitigating circumstances (which might argue against a death
sentence) unless all 12 members of the jury agreed that such
a mitigating factor existed. In fact, as Judge Yohn noted in
his decision, the law allows any one juror who finds such a mitigating
factor (for example, being a devoted father to a young child,
or having a difficult childhood) to consider that factor in deciding
whether or not to vote for a death penalty. Since the law requires
a unanimous vote for death in order for a capital sentence to
be imposed, this means that any one juror should be able to take
execution off the table if she or he thinks there is a sufficiently
mitigating factor.
If the DA can convince at least
two of the three appellate judges that Yohn was wrong in his
ruling, Abu-Jamal would be put back on death row, with his only
remaining hope of avoiding execution being the US Supreme Court--or
a reversal of his conviction itself. Even if the Third Circuit
panel supports Yohn's overturning of the death sentence, however,
Abu-Jamal could still end up facing execution. This is because
once an Appeals Court decision is rendered, the DA will have
180 days to decide whether to seek a new trial on the sentence
alone. If that were to happen, a new jury would have to be impaneled
to hear arguments for and against execution, with the alternative
being life in prison without possibility of parole.
Yohn's vacating of Abu-Jamal's
death sentence was well-reasoned, and it seems unlikely that
the higher court would reverse it, but this case has been full
of surprises from the start--with most of them going against
Abu-Jamal--so it cannot be ruled out.
Meanwhile, however, this past
year there was a surprise ruling by the Third Circuit that went
Abu-Jamal's way and that improved his chances of winning a new
trial by 200 percent. That surprise came in the form of an announcement
that Abu-Jamal would be allowed to add two additional grounds
for appeal of his conviction to the one, which Judge Yohn had
already certified for appeal.
Under existing law and federal
court rules, a capital defendant is only guaranteed the right
to appeal to the federal appellate court a ruling that a lower
federal district judge has "certified" for appeal.
Petitions to consider other issues may be made to appellate judges,
but those appeals judges have no obligation to grant a hearing
on them. In Abu-Jamal's case, Judge Yohn rejected all 20 of his
appeals of his conviction. But on one of those claims--the argument
that his jury had been systematically stripped of qualified black
jurors by the prosecutor's use of peremptory challenges (challenges
for which no reason has to be given)--the judge seemed troubled
enough by the evidence presented that he certified an appeal
to the Third Circuit Court of Appeals.
Abu-Jamal's appellate attorney,
Robert R. Bryan of San Francisco, went ahead and pursued several
other rejected grounds for appeal, though, and was rewarded last
December with a decision by the Third Circuit to hear appeals
arguments on two other grounds. One of these was the claim that
prosecutor Joseph McGill, near the trial's end during his summation
to the jury, had improperly led jurors to believe they needn't
worry about the possibility of wrongfully convicting the defendant.
Turning the basic requirement that jurors may only convict if
they feel a case has been proven "beyond a reasonable doubt,"
McGill instead urged Abu-Jamal's jury to go ahead and vote guilty
because their verdict would not be the last word. McGill, a veteran
prosecutor who clearly knew what he was doing, improperly assured
them, without any objection from the judge, that there would
be "appeal after appeal" of their verdict, which he
argued therefore "may not be final."
Federal courts have generally
found unconstitutional such attempts to remove jurors' sense
of responsibility for the gravity of their decision. It is hard
to imagine how fair-minded appellate judges could allow such
a blatant undermining of the law to stand, and yet, there have
been many examples of appeals courts doing just this, and the
Abu-Jamal case is a very politically charged issue.
The other ground for appeal
which the Third Circuit invited an appeal filing on was the charge
that Judge Sabo had been unconstitutionally biased against the
defendant both at the original trial and during the 1995 post-conviction
relief act (PCRA) hearing. A few years back, Abu-Jamal's defense
team discovered a court stenographer, Terri Maurer Carter, who
said that in the opening days of Abu-Jamal's trial, she, in the
company of her own judge, Richard Klein (currently a state Superior
Court Judge), had overheard Sabo say he would "help them
fry the nigger." The alleged incident reportedly occurred
at the end of the day as Sabo was exiting the courtroom along
with his court clerk through the private "robing room"
exit, just as Judge Klein, then a civil court judge who was planning
to borrow Sabo's courtroom for evening hearings, and his stenographer,
were entering the room.
Common Pleas Judge Pamela Dembe,
in 2001, ruled that it wouldn't matter if Sabo had uttered those
words, "since this was a jury trial." Hers was a bizarre
decision, since even if jurors, not judges, render the verdict,
judges clearly do make critical decisions about the admissibility
of evidence, about the questions that may be asked of witnesses,
and about how trials are to be conducted, and it's common sense
that a biased judge could easily skew a trial against a defendant.
But in any event, in a PCRA hearing, where there is no jury,
it is the judge alone who determines whether new evidence is
significant, what questioning will be allowed of witnesses, and
what subpoenas will be issued on behalf of the defendant. Sabo's
astonishing one-sidedness at that hearing was so blatant that
it led the Philadelphia Inquirer to editorialize at the time:
"The behavior of the judge in the case was disturbing the
first time around--and in hearings last week he did not give
the impressionof fair-mindedness. Instead, he gave the impressionof
undue haste and hostility toward the defense's case."
Should at least two of the
three appeals court judges considering this argument find evidence
of unconstitutional judicial bias, it would not lead to an overturning
of Abu-Jamal's conviction, but rather would more likely lead
to a new round of evidentiary hearings before a federal judge--most
likely Judge Yohn. At such a hearing, Abu-Jamal would likely
be given a chance to recall and re-question witnesses whose testimony
had either been disallowed or interfered with by Judge Sabo.
Abu-Jamal would probably also be able to call new witnesses who
have been discovered more recently, whose testimony might undermine
some of the earlier prosecution witnesses in the case. It is
possible there could also be recantations from some key prosecution
trial witnesses. (For example, there were reports back in 1995
that one of the prosecution's key eye-witnesses to the Faulkner
shooting, the cab driver Robert Chobert, had recanted his trial
testimony, in which he had testified that his cab directly behind
Faulkner's parked squad car, making him a direct witness to the
shooting, and was instead saying that he had been parked on another
street, facing away from the incident. Sabo had prevented this
damaging line of questioning by the defense at the PCRA.) Clearly
such a federal court evidentiary hearing could pave the way for
the ordering of a new trial.
The third avenue of appeal
of Abu-Jamal's conviction--the one certified for appeal by Judge
Yohn in 2001--is perhaps his best shot at an overturning of his
conviction. This is the claim of racial bias in jury selection--an
issue that even the current conservative Supreme Court has been
very sensitive to.
In Abu-Jamal's case, it is
clear from the record that prosecutor McGill used 11 of his allotted
15 "peremptory" challenges to remove from consideration
11 black jurors who had met the standard of agreeing that that
could vote for a death penalty. (In capital cases, jurors must
be questioned by defense and prosecution, or by the judge, and
any juror who states that she or he could never vote for a death
sentence may be summarily dismissed "for cause," since
such a juror, if impaneled, would be able to veto any death sentence.)
In the end, when jury selection was completed, Abu-Jamal wound
up with just three black and nine white jurors (ultimately reduced
to two blacks when one black juror was removed by the judge under
questionable circumstances). This in a city that was 44 percent
black, and in a case that involved the slaying of a white police
officer by a black defendant, making race a critical issue. While
McGill has insisted that his reasons for rejecting all those
qualified black jurors had nothing to do with their race, in
fact both his own record and the record of the prosecutor's office
under then DA Ed Rendell (now Pennsylvania's governor), suggest
otherwise.
Consider that between 1977
and 1986, McGill used peremptory challenges to strike 74 percent
of qualified African-American jurors from trials he prosecuted,
compared to only 25 percent of whites. Consider further that
under DA Rendell, the Philadelphia prosecutor's office overall,
over the same eight-year period, struck black jurors 58 percent
of the time, while striking white jurors only 22 percent of the
time. This is on its face damning evidence of a systematic policy
of illegal race-based jury selection on the part of both McGill
and of the DA's office. Moreover, under existing Supreme Court
precedent, a defendant, to prove unconstitutional race-based
jury selection, does not even need to prove that there is a pattern
of discrimination--only that there is evidence that race was
a factor in his specific trial. McGill's line of questioning
during jury selection for this trial makes it evident that such
was likely the case. For example, black jurors who were dismissed,
not "for cause" but peremptorily, were frequently asked
by McGill if they had "listened to black radio," while
white jurors were never asked such a question. At one point,
McGill also interrupted Judge Sabo to observe that a black judge
had entered the courtroom and seated himself on the side of the
visitor's seating area where Abu-Jamal's supporters were. McGill
said to the judge, "If the court pleases, the two black
jurors may know him." Since it was just as likely that the
ten white jurors might have known Judge Calvin Wilson, this was
clear evidence that McGill saw black jurors as being fundamentally
different from white jurors."
Judge Sabo, it should be noted,
studiously ignored McGill's outburst--perhaps aware of how damaging
they could be.
Although the above statistical
evidence was submitted to Judge Yohn by Abu-Jamal's defense team,
the judge never even considered it, because he confused and conflated
several studies submitted by the defense, and incorrectly concluded
that neither the McGill jury statistics nor the Rendell jury
statistics covered the period of Abu-Jamal's trial. Because Yohn
rejected that evidence out of hand, he did not bother to review
other evidence of race-based jury selection specific to the trial.
Yet in fact, not only did the period of both those studies cover
the period of Abu-Jamal's 1982 trial; his trial was in fact a
part of those statistics.
Should at least two of the
three judges hearing the Third Circuit appeal conclude that there
was an attempt at racial exclusion underlying McGill's peremptory
challenges, they would have no alternative but to order a new
trial for Abu-Jamal. An alternative would be for the Third Circuit
to send the issue back to Judge Yohn, with instructions that
he reconsider, based upon all of the evidence submitted by the
defense. Given that evidence, there is a very good chance that
in the end, Abu-Jamal could get a new trial, with a jury that,
in today's Philadelphia, would likely have four to six African-American
jurors on it instead of only two.
It seems clear that the coming
hearing of Abu-Jamal's appeal before the Third Circuit Court
of Appeals, at which there will be oral arguments presented by
both sides, will be dramatic and possibly explosive. And since
any decision by the appeals court will lead, at a minimum, to
a whole new round of appeals, while some could lead to new hearings
or to a new trial, or penalty trial, it seems equally clear that
this 25-year-old death penalty case will be around for some time
to come, as will the man who has spent those 25 years--including
the last five during which his sentence has technically been
lifted--in solitary confinement on Pennsylvania's grim death
row.
Meanwhile, those who continue
to lobby tirelessly for Abu-Jamal's execution--especially Faulkner's
widow Maureen and the Pennsylvania Fraternal Order of Police,
as well as Governor Rendell himself--should take note of an astonishing
statement made by Abu-Jamal prosecutor McGill in a December 3
article in the Inquirer. McGill, now retired and a private attorney,
who had assured me in an interview for my book on the case (Killing
Time), that it had been "the strongest case" he'd ever
handled, told the Inquirer reporter that Abu-Jamal "could
have been convicted of a lesser offense" had he waged a
"true defense."
It is well known that the Philadelphia
District Attorney's office has had a long history, stretching
back at least to Rendell's two terms as DA, of deliberately overcharging
defendants in hopes of winning plea bargains, and of deliberately
seeking the death penalty even when it is inappropriate, in order
to be able to "death qualify" and screen out jurors
who are opposed to capital punishment (many academic studies
have documented that pro-execution jurors tend to be more pro-government
and more inclined to convict than jurors who object philosophically
or on religious grounds to capital punishment). Indeed many jurisdictions
in Pennsylvania consider this tactic--still practiced under DA
Lynne Abraham--to be unethical.
McGill's statement suggests
that this tactic may have been applied in Abu-Jamal's case. It
is also an admission by McGill that Abu-Jamal never had a "true
defense."
Now I know McGill claims that
this is because Abu-Jamal himself screwed up by insisting on
being able to defend himself, but the truth is more complicated.
In fact, Abu-Jamal had hired an attorney, Anthony Jackson, whom
he thought was up to the task, but who in fact had never handled
a death penalty case, and who moreover had a drug habit (he was
subsequently disbarred for financial improprieties, allegedly
related to drugs). When Jackson began messing up, Abu-Jamal tried
to get rid of him, but was not allowed to do so by Judge Sabo,
who seemed to relish the discord that he was encouraging between
the defendant and his counsel. What Abu-Jamal ended up with was
the worse of all possible worlds: an incompetent defense counsel,
but no right to represent himself either.
In America, the right to a
fair trial is sacred. Is this the kind of situation--a defendant
who did not have a "true defense"--one that anybody,
including McGill, would want to see lead to a man's conviction
and execution?
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