Cracks in Mumia’s case

Philadelphia Tribune Written by Linn Washington Jr. Saturday, 05 December 2009

A clear case of open-and-shut guilt is how Philadelphia police and prosecutors describe the first-degree murder conviction that sent journalist Mumia Abu-Jamal to death row over a quarter century ago.

In this July 12, 1995, file photo, convicted murderer Mumia Abu-Jamal leaves Philadelphia's City Hall after a hearing. Death-row inmate Mumia Abu-Jamal lost his bid for a new trial in the killing of a city police officer after the U.S. Supreme Court said Monday, April 6, that it would not take up the case. — AP PHOTO/CHRIS GARDNER, FILE

However, just a quick peek underneath the surface of this case reveals a litany of errors and wrongdoing by police, prosecutors and judges that implode all claims of Abu-Jamal’s absolute guilt.

The case against the world’s most famous death-row denizen arguably contains compelling aspects of apparent guilt, albeit circumstantial and lacking the conclusive forensic evidence normally expected in such a high-profile prosecution.

Yes, police did find Abu-Jamal at the crime scene, critically wounded by a bullet fired from the slain policeman’s gun.

Yes, eyewitnesses testified that Abu-Jamal shot Officer Daniel Faulkner.

Yes, two policemen claimed hearing Abu-Jamal confess to the crime.

And, yes, courts from Philadelphia’s Common Pleas up to the U.S. Supreme Court have upheld Abu-Jamal’s conviction.

Yet, arguably compelling aspects cannot quell serious questions arising from the mound of documented misconduct by authorities in Abu-Jamal’s case that make a mockery of America’s constitutionally enshrined rights to a fair trial.

While fair trial rights require an impartial judge, the judge presiding at Abu-Jamal’s 1982 trial declared on the eve of that proceeding that he would help prosecutors “fry the n----r” — a declaration graphically displaying unfair bias.

Five of the seven Pennsylvania Supreme Court justices who unanimously upheld Abu-Jamal’s conviction in 1998 received critical political and other assistance from Philadelphia’s police union — the main group pushing for Abu-Jamal’s execution.

That entanglement undermined the appearance of impartiality required of jurists by Pennsylvania’s Code of Judicial Conduct.

One of those five justices in 1998 — Ronald D. Castille, a former district attorney of Philadelphia who fought to execute Abu-Jamal — rejected recusal requests that cited code provisions barring participation of a judge who had “served as a lawyer in the matter in controversy …”

The “overt hostility of the trial judge and the appearance of judicial bias during appellate review” render Abu-Jamal’s “verdict and sentence fundamentally unsound,” Amnesty International noted in its seminal February 2000 study of this contentious case that recommended a new trial for Abu-Jamal.

Facts Don’t Fit

Consider the fact that the two policemen who claimed hearing Abu-Jamal confess hours after Faulkner’s fatal shooting waited several weeks to report this key evidence to detectives.

One of those two policemen claiming to hear Abu-Jamal’s confession had even filed an official report hours after the fatal shooting saying Abu-Jamal made “no comments.”

Exactly 64 days after that officer filed his no-comment report, he told detectives his delay in revealing the confession resulted from him not realizing the confession “had any importance until today.”

Evidence of perceived injustice underlying Abu-Jamal’s conviction literally hides in plain sight.

One glaring example is photos of the Dec. 9, 1981, crime scene taken by police investigators that don’t show two central elements of the prosecution’s case against Abu-Jamal.

A main pillar of the prosecution’s case against Abu-Jamal was eyewitness testimony from a cab driver named Robert Chobert.

Prosecutors proclaimed Chobert sat in his cab when watching Abu-Jamal murder the police officer. But police crime scene photographs don’t show Chobert’s cab behind Officer Faulkner’s patrol car where prosecutors say it was parked.

The trailer for a forthcoming film about Faulkner’s slaying features four police photos showing different angles of the crime scene. Chobert’s cab is not shown in any of those photographs.

There are only two possible scenarios for the missing cab in those official crime scene photos: either police tampered with the crime scene by removing the cab or the cab was never there. Either scenario is a major legal violation that should warrant a new trial.

Also missing from official police crime scene photographs are bullet marks in the sidewalk around the fallen body of Faulkner fired from Abu-Jamal’s gun.

Prosecutors claimed Abu-Jamal executed Faulkner by firing four times at the fallen officer’s body at point blank range, hitting Faulkner once in the face and missing three times.

Yet, a sophisticated computer examination of crime scene photos conducted a few years ago by a NASA scientist who analyzes deep space photographs revealed no bullet marks in that section of sidewalk that should be clearly visible if Abu-Jamal acted as prosecutors claim.

It is impossible ballistically for three specialized high-velocity bullets to strike a sidewalk at point blank range without leaving any marks.

The prosecution’s other prime eyewitness was Cynthia White, a prostitute with a long arrest record and pending criminal charges at the time of Abu-Jamal’s June 1982 trial.

During Abu-Jamal’s trial, the prosecutor told the jury that White hadn’t received any offer of leniency or other considerations in exchange for her testimony.

Yet immediately after Abu-Jamal’s conviction, Philly prosecutors dropped those charges pending against white.

Examples of Injustice

Remember that Philadelphia police and prosecutors applied that “open-and-shut guilt” assertion to four other men arrested for three separate murders in 1981 — the year of Abu-Jamal’s arrest.

One of those four men spent 1,375-days on Pennsylvania’s death row before evidence documented that police detectives framed him. Two of those four men spent 20 years in prison before evidence revealed they were innocent. The fourth man — accused of a killing a cop — won an acquittal from a jury in 1982 when the only witness against him crumbled in court.

Seventeen of the policemen involved in the arrest or investigation of Abu-Jamal “were disciplined, indicted for crimes, found guilty of committing acts of corruption or brutality or resigned from the department under a cloud of suspicion,” stated investigative reporter Dave Lindorff in his 2003 book on the Abu-Jamal case. Lindorff’s book “Killing Time” is the first non-partisan book published on this miscarriage of justice.

What, many in Philadelphia’s Black community would ask, is the likelihood of corrupt cops not cutting corners to secure the conviction of a person accused of killing a fellow policeman?

The same Philadelphia and Pennsylvania courts that found major flaws in 86 Philadelphia death penalty convictions between Abu-Jamal’s December 1981 arrest and last October declare that not a single error exists anywhere in the Abu-Jamal case — the murder conviction sparking the most controversy worldwide.

Pennsylvania courts, for example, find no fault in prosecutors improperly excluding Blacks from Abu-Jamal’s trial jury, or allegations of manipulating evidence and making secret deals with alleged eyewitnesses — all fundamental fair trial violations producing favorable actions by those courts for defendants in numerous other cases.

Additional evidence of judicial impropriety against Abu-Jamal is evident in Pennsylvania State and federal courts voiding 22 death sentences because of failures by defense lawyers to present any mitigating evidence for their clients during the death penalty phase hearing following guilty verdicts in capital cases.

Voiding convictions for this reason is called procedural fairness where courts accept the guilty verdict but seek to ensure that all procedures are properly followed.

Suspiciously, despite voiding those 22 death sentences, state and federal courts found no fault in the failure of Abu-Jamal’s trial lawyer to present any mitigating evidence during the penalty phase hearing.

The judge for Abu-Jamal’s trial, the infamous Albert Sabo, holds the national record for presiding over the most death penalty trials.

While courts have overturned two-thirds of those capital convictions in Sabo’s court, including citing mistakes or misconduct by Sabo himself, Pennsylvania state courts claim Sabo made no errors in Abu-Jamal’s case.

Federal courts have voided Abu-Jamal’s death sentence citing errors by Sabo when providing death penalty phase instructions to the jury.

However, Abu-Jamal remains on death row because Philadelphia prosecutors are seeking to reinstate his death sentence. Because of harsh death row isolation restrictions, Abu-Jamal has not hugged his wife and children for over 20 years.

Injudicious Judges

Courts — state and federal — have repeatedly altered and/or abrogated established law to block Abu-Jamal receiving fair trial relief granted to other defendants raising the same legal challenges.

Precedent, or following established law, is supposedly the foundation of U.S. jurisprudence. Another foundation of U.S. law is requiring a fair trial to establish guilt or innocence.

A prime example of the alter-the-law-to-undermine-Abu-Jamal dynamic is the 2008 ruling by a federal 3rd Circuit Appeals Court panel that created a new legal standard for persons challenging racist jury selection practices by prosecutors.

The prosecutor during Abu-Jamal’s 1982 trial used 10 of 15 preemptory challenges to purge potential Black jurors — more than twice the exclusion rate expected statistically with race-neutral procedures.

That newly created legal standard advanced by two 3rd Circuit judges to reject voluminous evidence documenting racist jury selection practices by Abu-Jamal’s trial prosecutor erected procedures far in excess of those then required by existing 3rd Circuit and U.S. Supreme Court precedent.

The third member of that three-judge 3rd Circuit panel issued a stinging 41-page dissent that repeatedly criticized his panel colleagues for radically changing jury discrimination standards applied by their circuit and the U.S. Supreme Court.

Incredibly, the ruling by that panel’s two-judge majority — later backed by the full 3rd Circuit — faults Abu-Jamal’s 1982 trial attorney for not strictly following procedures the U.S. Supreme Court didn’t adopt until 1986 … four years after Abu-Jamal’s trial.

Curiously, just days before that March 2008 3rd Circuit ruling, the U.S. Supreme Court granted a Louisiana death row inmate a new hearing after finding race tainted jury selection practices during that inmate’s trial.

That U.S. Supreme Court ruling employed preemptory challenge standards less stringent than those the 3rd Circuit created in its Abu-Jamal ruling.

The author of that 2008 Supreme Court ruling, Justice Samuel Alito, formerly served on the 3rd Circuit where he participated in rulings granting relief to inmates victimized by prosecutorial jury selection improprieties less onerous than those in the Abu-Jamal case.

The U.S. Supreme Court rejected Abu-Jamal’s appeal of the 3rd Circuit ruling.

American law is an “instrument of the powerful,” Abu-Jamal stated in his latest book released earlier this year, his sixth book written from death row. “For the weak, the powerless, the oppressed, the law is more often a hindrance than a help.”

Abu-Jamal, a former Black Panther and supporter of Philadelphia’s MOVE organization, is a harsh critic of America’s racially inequitable society, a posture enraging many powerful people.

Fundamental Issue

In 1959, when Abu-Jamal was 4-years-old, the Pennsylvania Supreme Court issued a ruling that goes to the heart of the most important yet frequently downplayed aspect of Abu-Jamal’s conviction — a fair trial.

Pennsylvania’s highest court proclaimed that defendants are entitled “to all the safeguards of a fair trial … even if the evidence of guilt piles as high as Mt. Everest.”

Defendants retain fair trial safeguards irrespective of whether judges or prosecutors are convinced of the defendant’s guilt before trial.

That 1959 ruling prohibiting judges and prosecutors from failing to follow fair trial procedures came in a Philadelphia murder case where the defendant pleaded guilty.

Abu-Jamal has always maintained his innocence.

Evidence shows that politics and prejudice drives the determination to punish Abu-Jamal, not irrefutable proof of his guilt.

Because of that, Abu-Jamal deserves a new trial — a trial that is fair.