Oct. 23, 2011 This Can't Be Happening
Dave Lindorff and Linn Washington, Jr.
With Mumia Abu-Jamal's sentence of death now formally vacated, thanks
to the Supreme Court's decision last week not to consider an appeal
by the Philadelphia District Attorney of a Third Circuit Court
panel's ruling that that sentence had been unconstitutional thanks to
flawed jury instructions from the trial judge and a flawed jury
ballot form, many of those who have long called for his execution are
now saying, fine, let him rot in prison for the rest of his life.
The Philadelphia Inquirer, the leading newspaper in his hometown of
Philadelphia, in more genteel language, said essentially the same
thing in an unsigned October 13 editorial, opining that with the
death penalty vacated, the default sentence of life in prison without
parole was "appropriate" and "in the best interest of justice."
The editorial urged DA Seth Williams not to exercise his right within
the next 180 days to seek to obtain a new death sentence by asking
for a new jury trial on the penalty only. The paper made this plea
not because the editors felt such an effort to re-sentence him would
be unseemly, but because of the cost to the struggling city of Philadelphia.
But hold on here. Putting aside for a moment the matter of whether
Abu-Jamal was even fairly convicted in a trial that was viewed as a
shameful farce at the time in 1982 even by the editors of the
Inquirer, is it really "in the best interest of justice" or in any
way "appropriate" for Abu-Jamal to simply be switched over from a
death sentence to a sentence of life in prison without parole, now
that, as the Inquirer correctly noted in its editorial, "four federal
judges have ruled that Abu-Jamal's 1982 death sentence was
unconstitutional," and that "he was denied a fair sentencing at his
No. It is manifestly not just or appropriate! Abu-Jamal no longer has
a death sentence, but remains in solitary on death row thanks to a
vengeful, or gutless, DA and supine judges
The unconstitutional sentence of death voted out by confused jurors
back in 1982 has meant that Abu-Jamal, for nearly 30 years, has been
held in a Super Max death row prison called SCI-Greene in western
Pennsylvania, where he is confined in a tiny windowless cell in
solitary confinement, separated at all times from even other inmates.
It means that unlike other prisoners, as a death row inmate he has
for all those years been unable to have any physical contact with
friends and loved ones -- even his little grandchildren, or his late
mother, whose funeral he was barred from attending. Death row
prisoners, on the rare occasions when they are allowed to see
visitors, are brought, cuffed and manacled dispite the impossibility
of escape, to a "visiting room," and must communicate through a thick
plexiglass window. Abu-Jamal was even kept in this hellish condition
during the last 10 years, after Federal District Judge William Yohn,
in December 2001, initially overturned his death sentence, because
the vindictive and sadistic then DA Lynn Abraham asked the court to
keep him there for the duration of the appeal process on that issue.
Yohn's decision was never overturned in all that time, yet even now
that Yohn's ruling has been finally confirmed by the Supreme Court
and can no longer be challenged, Abu-Jamal remains in that death row
cell, thanks to the continued vindictiveness or political cowardice
of Abraham's successor.
But Abu-Jamal should never have been there in the first place! The
federal courts, since 2001, have established, over and over, and now
with finality, that the jury back in 1982 was misinformed by trial
Judge Albert Sabo about the absoluteness of the "life without
possibility of parole" alternative to death. They were further
confused by the jury ballot form he gave them, which a series of
federal courts has established likely confused them about the rules
on "mitigating circumstances" that they might consider would argue
against voting for a death sentence.
In order for someone to be sentenced to death, it is not enough that
someone simply kills another person. Rather, a jury must unanimously
find at least one "aggravating circumstance" in the commission of
that murder. But for there to be at least that one "aggravating"
factor, the law says all 12 jurors must agree to it. They cannot say
it exists if there is a single dissenting vote. But in the case of
mitigating factors, which might lead a juror to decide against death
and for life without parole, the rule is that any single juror can
find one, and can then apply it to his or her own decision. The jury
form, the courts found, improperly made it sound like they had to
also agree unanimously about the existence of any mitigating
circumstance before any one of them could consider it. The likelihood
is that at least one of those 12 jurors could have felt there was a
mitigating circumstance, such as that Abu-Jamal had no prior
convictions, or that witnesses testified that he was a good father to
his small children, etc. But thanks to the flawed jury form, and
flawed instructions from Sabo, they did not feel they could legally
take any of that into consideration because others didn't agree.
So because of these unconstitutional flaws in the penalty phase of
his trial, Abu-Jamal spent not a month, not a year, not two years,
but 30 years on death row, all the time waiting for the state to kill
him. That is a heavy punishment for any man.
It might be one thing if this error had been corrected in a short
time following his trial, but instead, the D.A.'s office has fought
tooth and nail every step of the way over three decades and right up
to the Supreme Court against the finding of error, and has even
fought to keep him on death row after a federal judge had rendered
his decision overturning the sentence.
It's not "appropriate" at this point, now that the error has been
confirmed, to just say, "So what?" and to convert the sentence to
life in an ordinary prison without the possibility of parole, as
though nothing worse had happened.
Justice demands that there be some kind of recognition of the fact
that Abu-Jamal has been put through 30 years of a true hell that he
did not deserve, and that, moreover, his death sentence was unconstitutional.
Many convicted murderers in the United States have been released
after far less than 30 years in jail. It would be appropriate at this
point for the D.A. to admit that this particular prisoner has
suffered not just enough, but more than was constitutionally
appropriate, and to ask the court to release him on time served.
Meanwhile, if he is not released and is instead "left to rot" in jail
for life, his new legal team, headed up by Christina Swarns of the
NAACP Legal Defense Fund, would have to discover new avenues for
further challenges to his conviction. The difficulty for Abu-Jamal is
that all the constitutional challenges to his original trial, and to
the corrupted appeals process to which he was subjected, have already
been rejected by the federal courts. In order to win a new trial at
this point, then, he and his legal team would have to discover
evidence of innocence which he "could not reasonably have been
expected to have discovered earlier through due diligence." Such
evidence might include recanting witnesses, newly discovered
witnesses, or perhaps more crime scene photos that raise questions
about the original evidence. But they all would face that high hurdle
of being either new, or not earlier discoverable, if they are to be
grounds for a possible new trial.
On the other hand, as
wrote earlier , if D.A. Williams is brash enough or pressured
enought by groups like the Fraternal Order of Police to attempt to
retry the penalty phase, there is a much easier route for Abu-Jamal
to bring in new evidence of innocence. Since many of the alleged
witnesses to the shooting incident that led to Faulkner's death were
also used by the prosecution to portray the crime as a kind of a
cold-blooded execution, those witnesses -- at least the ones who are
still alive -- could be subpoenaed to appear at a penalty hearing by
the defense, where their veracity could be challenged. At that point
evidence such as ballistics tests  to show that it would have been
impossible for Abu-Jamal to have fired directly downward four times
at Officer Daniel Faulkner while straddling him, hitting him only once,
without there being any bullet marks in the surrounding sidewalk. Or
evidence--photographic and otherwise--that there was never any taxi
cab parked directly behind Faulkner's squad car, where purported eye-witness
Robert Chobert said he was parked when the shooting occurred. Or perhaps a
new witness decisively claiming that there was never a confession
shouted out by Abu-Jamal in the Jefferson Hospital ER, or that the
prosecutor hid exculpatory evidence at trial.
Should any of these things happen during a new penalty phase trial it
could be a whole new ballgame in terms of the conviction itself.
That would be the best outcome at this point. It is what Amnesty
International, in a Feb. 17, 2000 report on the case which only
merited a one-paragraph notice in the Inquirer at the time, concluded
when it called for a new trial, saying that the first one has been
"in violation of minimum international standards that govern fair
trial procedures." Clearly the Inquirer's current editorial writers
don't bother to check their paper's own morgue. If they had, they'd
have seen that back on July 16, 1995, their predecessors had
editorialized during a Post Conviction Relief Act hearing on the case
that was being held before the original trial judge Albert Sabo, that
the "whole truth" of the case may "never be found." Those same
editorial writers wrote back then that the behavior of the Judge Sabo
at the 1982 trial was "disturbing," and in the 1995 fact-finding PCRA
appeal Sabo "did not give the impression to those in the courtroom of
fair-mindedness." How one gets from there to saying his current fate
is in any way "appropriate" or "in the best interest of justice" we
If DA Williams wants to do the right thing here, but does not have
the political courage to just release Abu-Jamal on time served, given
the huge political power of the FOP, which has been unethically
lobbying for, and even bribing judges to execute him for years, he
could short-circuit all of this, as Linn Washington
ThisCantBeHappening! , by offering Abu-Jamal an Alford Plea deal.
Under the terms of an Alford Plea, a convicted person may continue to
claim her or his innocence, while conceding that the prosecutor
probably has the evidence to convict. Upon being freed, the
individual remains a convicted murderer, but both sides can claim to
have won on some level.
It would be a messy end to a very messy case, but it would be far
more "appropriate" and would be far more "in the interest of
justice," than just throwing Abu-Jamal into Graterford Prison for
life without possibility for parole after he has already
unconstitutionally endured 30 agonizing years on death row.
Friday, November 04, 2011
Oct. 23, 2011 This Can't Be Happening