This flip-flopping on allocution, on acceptable language for prosecutors, on the importance of judges being impartial, and on other legal precedents, all led Amnesty International to conclude in its 2001 report on Abu-Jamal’s case that the state’s highest court improperly invents new standards of procedure “to apply it to one case only: that of Mumia Abu-Jamal.”
Justice, that is to say, has not always been blind in this case. A “Mumia Exception” had been established.
And now this stain on Pennsylvania jurisprudence appears to have migrated to the federal court system, at the Third Circuit.
Says Washington, “This decision once again shows that in the Abu-Jamal case, evidence is not important. As with the Pennsylvania courts, this federal court ignored its own precedents in reaching a result that is contrary to the facts and to the law. The reason for this is what Amnesty International pointed out in their 2001 report: The Abu-Jamal case is hopelessly polluted by politics, which precludes any justice in this case.”
Current Philadelphia District Attorney Lynn Abraham continued that outrageous behavior, and gave a demonstration of the toxic politics that affects the justice system where this case is concerned, at a press conference following the announcement of the court’s decision, where she referred to Abu-Jamal repeatedly as an “assassin.” In fact, at no point during the trial was there ever any claim by the prosecution, or any witness testimony, to even remotely suggest that Abu-Jamal had “targeted” Faulkner for death. Rather, the prosecution claimed that he had coincidentally been parked in a taxi he was driving, across the street from where his brother William had been stopped on a traffic violation by Faulkner, and had come across the street when his brother and the officer became involved in an altercation. To wrongly label the ensuing double shooting of Faulkner and Abu-Jamal an “assassination” as Abraham did, implying a political “hit” on Faulkner, was clearly aimed at inflaming public sentiment against Abu-Jamal. It was the same thing prosecutor McGill had attempted to do when, after the verdict, during his summation to the jury in the penalty phase of the trial back in ‘82, he brought out an old news clipping of an interview with a 15-year-old Abu-Jamal in which the defendant had quoted Chinese revolutionary leader Mao Tse-tung as saying “power flows from the barrel of a gun.” (The context of that full article made it clear the young Abu-Jamal was referring in that quote to the power of police, who had just "assassinated" Panther leader Fred Hampton in his bed in a raid on a house in Chicago.)
With all three of Abu-Jamal’s habeas claims for an overturning of his conviction rejected, his case now moves to the US Supreme Court, with a possible stop along the way for a hearing by the full Third Circuit bench. Abu-Jamal’s attorney Bryan says he plans to file a request for such an en banc reconsideration of the ruling by the full Third Circuit within the next two weeks. Neither the full Third Circuit, nor the Supreme Court, are obligated to hear the case, which would make the current Third Circuit decision the final word on his conviction.
Bryan said, “Judge Ambro’s dissent in the Batson decision was very powerful, and we will certainly be using it in our arguments to the full Third Circuit and to the Supreme Court."
As for the overturned death penalty ruling, which the DA’s office will certainly also appeal to the High Court, should it be sustained, there are two options. The DA could decide to leave things at that—something McGill, interviewed shortly after Judge Yohn’s initial ruling, said was being considered—in which case Abu-Jamal would face life in prison with no possibility of parole. He would not, however, have to spend more time in the near solitary confinement torture of Pennsylvania’s maximum-security death row, but would be moved to a regular prison. Alternatively, the DA could decide to go to a Philadelphia court and impanel a new jury to conduct just a sentencing hearing, in hopes of winning a new death penalty. Such a limited trial would not address guilt or innocence--only punishment.
Given fairer rules regarding jury selection, and the larger minority population in today’s Philadelphia, and Abu-Jamal's having better legal representation, it is hard to imagine the DA succeeding in convincing 12 fairly chosen Philadelphia jurors to sentence journalist him to death for a crime for which he has already served 26 hard years’ time. Moreover, because a defendant is entitled to subpoena witnesses in his defense, the DA would run the risk that Abu-Jamal could use such a trial to introduce new evidence of innocence, opening the door to further appeals of his underlying conviction. For these reasons, an effort to win a new death sentence seems unlikely.
The legal stymieing of Abu-Jamal’s efforts to win a new trial comes at a time of growing questions regarding his guilt, or at least the veracity of the witnesses and the evidence used to convict him on a first-degree murder charge.
Last year, photos were discovered that had been taken by Pedro Polakoff, a freelance news photographer, of the crime scene on the south side of Locust Street at 13th Street in Philadelphia’s Center City only minutes after police had arrived and after the wounded Abu-Jamal and the clinically dead Faulkner had been taken off to Jefferson Hospital. These photos show police tampering with evidence, including the both Abu-Jamal’s and Faulkner’s guns as well as the officer’s police hat. Photos of the bloody spot on the sidewalk where Faulkner lay as he was shot by a bullet to the face at close range show no sign of craters where three other shots Abu-Jamal is alleged to have fired from a position astride the officer and that missed should have left their marks in the concrete (this proved true even when a photo enhancement expert at NASA's Jet Propulsion Laboratory subjected them to detailed enhancement!) . This lack of impact marks raises questions about the testimony of two alleged eyewitnesses to the shooting since the four high-velocity bullets Abu-Jamal was purported to have fired down at Faulkner simply could not have been fired without leaving marks--unless perhaps there is a "Mumia Exception" to the laws of physics too, and not just in law). Those same photos also show no taxicab parked behind Faulkner’s parked squad car in the place one of those witnesses, Robert Chobert, claimed he had been stopped. The missing cab raises questions about the veracity of Chobert’s claim to have witnessed Faulkner’s murder.
Other witnesses are still coming forward since the trial, who also challenge the prosecution’s story, but without a new trial, it is not clear that their evidence will ever be heard.
Abu-Jamal’s attorney says Abu-Jamal told him this morning that he was “disappointed” in the result, but that he “hopes the reversal of the death penalty will help others on death row, and says, 'The struggle continues!’”
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DAVE LINDORFF is author of "Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal" (Common Courage Press, 2003). His work is available at www.thiscantbehappening.net
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