Here’s a prediction: Seth Williams, the district attorney of
Philadelphia, will decide not to seek to reimpose the death penalty on
Mumia Abu-Jamal, the world-famous journalist, former Black Panther and
condemned prisoner who has spent the last almost 30 years of his life on
Pennsylvania’s overcrowded death row.
The choice belongs to Williams, now that the U.S. Supreme Court has
decided, today, on its second time around dealing with the issue, not to
overturn the decision of a three-judge panel of the Third Circuit Court
of Appeals, which had, on orders of the Supreme Court, reheard,
reconsidered and reaffirmed its earlier decision upholding the tossing
out of Abu-Jamal’s death sentence by a lower federal district court.
For years since the dramatic 2001 decision by Federal District Judge
William Yohn overturning Abu-Jamal’s death sentence on grounds that the
trial judge’s instructions to the jury had been faulty and that the
jury verdict form was dangerously misleading, Abu-Jamal has remained
stuck in brutal solitary confinement at SCI-Green.
That’s the super-max
facility that houses Pennsylvania’s condemned prisoners, where Abu-Jamal
and the others who are actually facing death are denied any human
contact either with each other or with close relatives and friends
(visits are conducted through heavy bullet-proof plexiglass, with the
inmate in chains, for no good reason beyond simple gratuitous cruelty,
since escape is impossible). He was kept there for the last decade
through the machinations of a vindictive DA’s office, which argued that
as long as the lifting of his death sentence was on appeal, he should
have to stay put as if he were facing imminent death.
There remains no reason or lame excuse to keep him in that hell hole now, and he should be immediately moved out.
The only way he could face a death penalty at this point would be if
the DA, within the next 180 days, were to order up a new trial on the
penalty phase of his case, with a new jury hearing arguments for and
against sentencing Abu-Jamal to death all over again for the crime he
was convicted of back in 1982: the shooting death of white Philadelphia
Police Officer Daniel Faulkner. (There is no easy avenue for appeal of
Abu-Jamal’s conviction at this point, as all his habeas claims of
constitutional violations and trial errors have been rejected by the
highest federal courts.)
Already, the wheels are turning against a penalty retrial.
Maureen Faulkner, the widow of Daniel Faulkner, who has been a
tireless campaigner for Abu-Jamal’s execution, has reportedly told a
reporter from the Associated Press, following word of the Supreme
Court’s decision, that she “wondered whether it was time to end the
long-running drama.”
Mumia Abu-Jamal: 30 years on death row, never a fair trial
She is quoted as saying she worries about the cost
of a rehearing of the penalty issue to the city of Philadelphia, and
notes that “many of the relevant witnesses are dead.” Plus she doesn’t
want to afford Abu-Jamal any more publicity, she says.
What she doesn’t say, but what DA Williams surely knows, is that if
there were a re-hearing of the penalty phase of this sorry case, there
is virtually no way that a modern Philadelphia jury would vote to
execute Abu-Jamal. First of all, it would not be possible for the DA,
who in any case is himself an African-American for the first time in the
city’s history, to pack the jury with white people the way the
prosecutor did in 1982 (and the way the DA’s office routinely did in
felony and especially murder trials until 1986, when the despicable
practice, tantamount to lynching, was outlawed by the Supreme Court).
Furthermore, Abu-Jamal has been a model prisoner for 30 years, earning a
Bachelor’s and a Master’s degree while on death row, writing a number
of highly-regarded books, including Live from Death Row, which
exposes the horrors of a life waiting for death, and of the nation’s
whole prison industrial complex. And of course, he has served those 30
long years in prison, and still faces a future of life without
possibility of parole even if he doesn’t face execution. That is bound
to seem punishment enough to at least one juror in a panel of 12
honestly selected individuals of the city of Philadelphia, making a
unanimous death penalty sentence almost impossible to imagine.
But there is another reason I seriously doubt Williams will retry
Abu-Jamal to get the death penalty reimposed: the fear that such a court
hearing could lead to a new trial on the conviction itself, which was
the result of a trial process which was even more of a travesty, if that
is possible, than the portion that led to his death penalty.
This is because in a penalty-phase hearing, in order to refute
prosecution claims to a jury that Abu-Jamal didn’t just kill Officer
Faulkner, but killed him in a way that was wanton and deliberate and
even pre-meditated, Abu-Jamal’s defense attorneys would certainly bring
in witnesses, some from the original trial, and some discovered since
that trial, who would raise serious questions about the veracity of the
original trial’s prosecution witnesses. They could do this because those
witnesses were used at the trial to describe not just the supposed
shooting, but the vicious manner in which it was supposedly carried out.
Just take the matter of the prosecution’s depiction, in closing
arguments during the penalty phase of the trial, of an “execution-style”
slaying of Faulkner, with witnesses describing Abu-Jamal standing
astride the prone Faulkner, who was supposedly lying “on his back,” and
firing four shots downward almost point blank, hitting the officer once
between the eyes.
As my colleague Linn Washington and I prove convincingly in a gun
test we ran last year (see the film of our test by scanning down to the
bottom of our homepage or go to: http://www.youtube.com/watch?v=hedfNPt6UQQ&feature=player_embedded),
this story had to have been a fabrication, because three of those shots
missed Faulkner, and there is no sign of bullet impacts anywhere in the
concrete sidewalk around the bloodstained spot where Faulkner’s body
was lying. That lack of evidence would raise questions about whether the
prime witness describing that certainly brutal slaying story could
actually have seen what he told the jury he saw.
The witness in question, a young white taxi driver named Robert
Chobert, claimed at the trial that he had parked his taxi directly
behind Faulkner’s parked squad car. The shooting was said to have
occurred on the sidewalk two cars forward of Chobert’s taxi, meaning he would have been viewing it diagonally from his seat at the wheel, through at least the front and rear windows
of the parked squad car and perhaps the parked VW Beetle belonging to
Abu-Jamal’s brother Billie Cook, too -- this at night and with
Faulkner’s dome lights and tail lights flashing in his eyes. But on top
of this, there is no crime-scene photo showing Chobert’s taxi cab parked behind Faulkner at all, and the likelihood is that he was not even a witness.
It would also certainly be presented by the defense at any penalty
hearing that contrary to the trial prosecutor’s assertion to the jury
that “this man” (Chobert) had “no reason to lie,” he actually had plenty
of reason to do so. The original jury, thanks to a biased and clearly
ludicrous decision by the trial judge, Albert Sabo, never was informed
that Chobert at the time he allegedly parked behind Faulkner’s vehicle,
and at the time of the trial, was driving on a driver's and a hack's
license suspended for a DWI conviction, and that he was on probation for
felony arson, for the fire-bombing of an elementary school!
Furthermore, it only became known to the defense in 1995 that Chobert
had also asked the prosecutor if he might be able to “fix” his driver’s
license problem (a request that the prosecutor should by law have
immediately made known to the defense, and to the court, since even if
he did nothing to help Chobert, it meant that Chobert was likely to have
been hoping for a reward for testifying favorably for the prosecution).
Of course, this is only one example of the peril posed to the
state’s case against Abu-Jamal by any public rehearing on his death
penalty. There are many, many more such perils, too.
While on the one hand, it is surely a relief--and a victory for
Abu-Jamal and his supporters -- that this atrocity of a case will almost
certainly not result in Abu-Jamal’s execution, thanks to the Supreme
Court’s decision to stay out of it, in a perverse way, on the other hand
it is also unfortunate. This is because once Abu-Jamal is sentenced to
life without parole rather than to death, and is transferred to a
general prison population, where he will have freer access to his loved
ones and to the public, as well as to the state’s huge prison
population, the national and global movement to free him will likely
weaken, for he will no longer be the icon of the anti-death penalty
movement that he has been while facing death.
He will of course be able to combat this potential loss of attention
to his case thanks to his journalistic skills, which will be easier to
apply once he’s sprung from SCI-Green and has at least occasional access
to a computer and to a library. But let’s face it: remaining a leading
symbol of the nation’s death penalty madness will be harder once the
threat of execution is finally lifted.
This means that those of us who believe that Abu-Jamal’s original
trial was a scandal of the worst proportions, and that his guilt was
never proven, thanks to the epic misconduct of the prosecution, the
induced lying by prosecution witnesses, the clear pro-prosecution bias
of the judge, the ineptness of the defense attorney, the packing of the
jury, the lack of funding for any defense experts, and myriad other
flaws, will have to work all the harder at trying to win this
long-suffering victim of the American injustice system a new trial, not
on the penalty, but on his original conviction.
DAVE LINDORFF is the author of Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2006).
