by Dave Lindorff and Linn Washington, Jr. l This Can't Be Happening

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 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 original trial.”

No. It is manifestly not just or appropriate!

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 I 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 cannot fathom.

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 wrote earlier in 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.