Mumia Case Update December 2006

(Picture of Officer Daniel Faulkner)

On numerous message boards and through correspondence I have been brought aware that there are many of you out there who are questioning what is going on with Mumia’s case.

The question that comes up most frequently and is most obvious is the one about "what is taking so long". Indeed a simple if not totally appropriate question. One that people seem hard pressed to answer.

Now, without hesitation, I do allow myself the indulgence of considering myself an expert if you will on MOVE, I am, however somewhat less confident in terms of expounding upon the complexities of the ongoing case of Mumia Abu-Jamal. Still, I believe I have a reasonable enough grasp of the facts of the case and of the legal system to be able to offer a glimpse into where the case is at and where it might be going into the coming months. I have tried my best to make sure that those things in this "update" that are "facts" are indeed clearly marked as such and that my "opinions", such that I express them are also clear.

The deficiency in this posting will be the neglect of Jamal’s current legal team’s campaign that is ongoing outside of the courtroom. To get into that here would be to the detriment of the concision of what I am trying to do and may cloud factual issues with the muck are mire that passes for the "movement" to "Free Mumia". I will say this however, Jamal’s current attorney is spending a lot of time in public disparaging Officer Faulkner as a brutal racist while distancing himself from the discredited "Beverly confession". I may be reaching here, but I believe the emphasis attacking Officer Faulkner as a brutal racist is a less than oblique way of paving the ground for Jamal to assert a "self-defense" type of stratagem in the unlikely event of a re-trial.

Now, onto the update.

As I have said before, the likelihood of Jamal ever being on the receiving end of executioner’s needle is not very high. The state of Pennsylvania is not like Texas where executions seem to be carried out on at least a monthly basis. Pennsylvania hardly ever executes and has only done so three times during the last three decades that the option to do so has been on the table. Reasons for this are many, but there is a general shift by states away from capital punishment towards things like life in prison without the possibility of parole. So, pretty much wherever you stand on Mumia, when the books are closed on the matter you are unlikely to get the result to which you desire.

The 3rd Circuit Court of Appeals (Phila.) early in the New Year should be making a judgement upon Jamal’s latest appeal.

This appeal from the perspective of Philly prosecutors is whether the Philadelphia District Court erred in nullifying the 1982 death sentence by holding that the trial judge’s written verdict form and oral instruction to the jury created a reasonable likelihood that the jurors thought that they must unanimously find a "mitigating circumstance" existed before they could determine whether the sole aggravating circumstance was outweighed by mitigating circumstances.
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Remember that it was Judge Yohn, who in 2001 overturned Jamal’s death sentence citing the above issue as the reason. Judge Yohn ruled on a legal technicality saying the jury may have misunderstood how to consider "mitigating circumstances" issues raised by the defense at the 1982 trial.

Judge Yohn argued that, based on the trial judge's instruction and the verdict form, the jury may mistakenly have believed it was required to agree unanimously on any mitigating circumstance. He said that by law, all 12 jurors did not have to agree on such issues in penalty deliberations.

In his opinion, Yohn went over federal case law that governs death-penalty deliberations.
According to Yohn, in death-penalty deliberations, juries are required to weigh aggravating and mitigating circumstances. Jurors are not required to agree unanimously on factors that might mitigate in the defendant's favor.

Yohn quoted Common Pleas Judge Albert Sabo, who presided at Abu-Jamal's trial, as instructing the jury: "Remember again that your verdict must be unanimous. It cannot be reached by a majority vote or by any percentage. It must be the verdict of each and every one of you."

Yohn said that comment and other aspects of Sabo's charge created a "reasonable likelihood" that the jury believed it had to agree unanimously on mitigating circumstances.

It was not said whether or not any of the jurors had been asked to testify whether or not they had been "confused" by Sabo’s instructions. Only that the possibility existed and that was enough of a reason to vacate the death sentence.

This is what the District Attorney is appealing, the ruling by Yohn that vacated Jamal’s death sentence and it is this appeal that has left Jamal still technically on "death row". Being that the issue is under review, no death warrant can be signed or date of death can be set.

Jamal’s defender’s led by the capable appellate lawyer, Robert Bryan is arguing the racial discrimination issue. Their claim hinges on whether they can prove that the prosecution excluded jurors on the sole basis of their race, thereby violating Jamal’s due process, civil rights, right to a jury of his peers, etc...

Attorney Byan has a particularly uphill battle on this as Judge Yohn was unambiguous in his argument that no such racial bias was demonstrated on behalf of the prosecution. The facts of the case seem to clearly bear this one out.

In his decision, Yohn points to the fact that during voire dire that there were no improper questions or comments made to any of the African-American jurors.
The previous District Court Judge upheld two unanimous PA Supreme Court rulings which stated in part that they could find "not a trace of support" for an inference that the use of
peremptory challenges was racially motivated. (Commonwealth
v. Mumia Abu Jamal, a/k/a Wesley Cook (1989) 555 A.2d 846, at 850)

That ruling was supported by the facts that:
A) The very 1st qualified venireperson selected by the prosecutor (and then approved by the defense) was, like the defendant, an African American; and
B) The 2nd qualified venireperson selected by the prosecutor was, like the accused, African American; and
C) That genuinely qualified Black (i.e., an unbiased citizen with no sentiments against the death penalty if guilt were proven beyond a reasonable doubt), was peremptorily eliminated from the jury by the African American defendant; and
D) At the end of jury selection the prosecution had selected (and the defense had also approved) three genuinely qualified Blacks;
E) At the end of jury selection the prosecution still had five (5) peremptory challenges left (out of 20 granted by statute). Thus, the 1982 prosecutor, ADA Joseph McGill, if he had been disposed to racially discriminate against the minority defendant, could have easily done so by eliminating the four (4) qualified Blacks he'd already approved with those available peremptory challenges.

The other primary issue in the "hail Mary" defense of Jamal’s legal apparatus is the filing of a brief which would "prove" that Mumia was denied due protection under the law due to the fact that the presiding Judge Sabo had publicly stated that he was "going to help them fry the nigger".

The Third Circuit courts have allowed this brief and both the NAACP Legal Defense Fund and The National Lawyers Guild have filed briefs of their own which sit in support of that of Jamal’s.

The racist comment was reportedly heard by a court stenographer in a robing room prior to jury selection. The stenographer, a Ms. Terri Maruer-Carter has some serious credibility issues pertaining to her claim. Most strikingly, she did not come forward with her information until August of 2001. As an acclaimed and accredited officer of the court, Ms. Carter had to know full well the implications of what she claimed to have heard and should have been professionally, if not morally obligated to tell someone, anyone, about what she allegedly heard. She provides no evidence that she did that until 2001.

Also, her affidavit is noticeably vague and rather short on details.

Perhaps a reason for this is the fact that Ms. Carter is no stranger to radical politics in the Philadelphia area, was opposed to the death penalty, and therefore had at least some motivation to falsify a statement in order to keep someone from being executed. To date their has been no corroboration of Carter’s assertion.

Although, to be fair, not-so-independent journalist, Dave Lindorff has reportedly interviewed one of the people alleged to be with Carter at the time, her former boss. According to Lindorff, Judge Richard Klein had this to say about the incident "I won’t say it did happen and I wont say it didn’t. That was a long time ago." Judge Klein now sits on the PA Superior Court.
So, in 2001, Jamal’s attorneys filed Carter’s affidavit and the judge came back with a striking verdict to the defense’s motion. It was dismissed on the ground that a higher court - the Pa. Supreme Court - had already ruled that there was no racist judicial bias visible in the trial record.

Now, with Judge Sabo deceased it appears that three people know what happened in the robing room that day. One of whom waited two decades to come forward with the information, the other allegedly is offering only vague statements on the issue, and we do not no the identity or view of the other. That being the case, any Judge would be hard pressed to grant Jamal relief under such circumstances.

On the other hand, three people heard Jamal’s confess to shooting Officer Faulkner, one of whom was an African-American security guard.

As far as the judicial system goes, Jamal shot and killed Officer Faulkner. What lies before the court now is just how "fair" the proceedings were that led to him being given the death penalty and whether or not racism played a part in Jamal’s prosecution and what the allegedly "racist" trial Judge’s role may have been in guilty verdict.

Now, if history is any indicator of how things will work out for Mumia, he is in a good deal of trouble. Jamal’s revolving team of attorneys have always done well at presenting their case on paper and to their radical devotees. However under scrutiny, cross examination, or a rigorous application of common sense, that which seems so clear cut and definitive falls to pieces.

In order to secure a new trial for Jamal, not to speak of freedom, the defense must come up with a plausible explanation as to why Mumia was sitting on a curb in front of a dead cop, with an empty shoulder holster under his armpit, with a bullet from the dead cop’s gun in his chest and his own registered .38 caliber pistol laying next to his feet, with all bullets apparently fired.
These circumstances alone would probably be enough to implicate Jamal in the killing of Officer Faulkner. Even putting aside the eyewitness testimony, Jamal’s confession, ballistic evidence, and Jamal’s long held animus towards police and deification of those who murder them, Jamal would be screwed.

If I were him I would do whatever I could to make my 6X9 foot cell that much more comfortable, because barring a miracle, it is very likely that he will spend the rest of his life there.