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Abu-Jamal Case at Third Circuit, Prosecutor Admits He Had No “True Defense”

by Dave Lindorff

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 impression…of fair-mindedness. Instead, he gave the impression…of 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?

Dave Lindorff, a columnist for Counterpunch, is author of several recent books (“This Can’t Be Happening! Resisting the Disintegration of American Democracy” and “Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal”). His latest book, coauthored with Barbara Olshansky, is “The Case for Impeachment: The Legal Argument for Removing President George W. Bush from Office (St. Martin’s Press, May 2006). His writing is available here.