ON MUMIA, WHAT WILL THE NEXT D.A. BRING?

by Micheal Smerconish

(Philly.com)

Danny Faulkner has had a good friend in the D.A.'s office. As a matter of fact, he's had three: Ed Rendell, Ron Castille and Lynne Abraham.

It was on Rendell's watch that Faulkner was slain 25 years ago. Rendell picked Joe McGill, a top-notch seasoned prosecutor, to try the case. McGill brought home a conviction and death sentence.

Castille followed Rendell. A highly decorated Vietnam vet, Castille could be counted on to support the memory of the slain Philly cop. Next came "tough cookie" Abraham, selected to replace "Ronzo" when he quit to run for mayor. She was elected to a full term in 1993, and been re-elected ever since.

To Abraham, the case has never been just another appeal. As the cop-killer has drawn Hollywood and international support, her office has never wavered.

She has assigned top-shelf assistants to protect McGill's verdict, as evident last week in federal court when Hugh Burns ably represented the people in the latest appeal.

Burns was impressive. But sitting two seats away from Maureen Faulkner amid the haggling over legal minutia, I started getting nervous thinking about the post-Abraham era. She says this is her last term, so the last chapter of the Mumia saga may occur on someone else's watch.
Look how long it's already taken. The murder was in 1981, the trial in 1982. In 1989, the conviction and sentence were upheld by the state Supreme Court.

Now, Abu-Jamal has turned his attention to the federal courts, where he's seeking habeas corpus relief. In 2001, federal Judge William H. Yohn upheld the conviction and rejected all but one of the 29 defense arguments. Abu-Jamal's conviction stands, but his death sentence has been overturned. Both sides are appealing.

It took six years for that trial- level opinion to get argued in the Court of Appeals here, and although history suggests it will take the three judges months before they render a decision, nothing in this case is routine. It's possible that it could take longer, and then, most certainly, one side will request that the entire appellate court hear the case.

Regardless of whether the full Third Circuit hears the case, one or both sides will surely appeal to the Supreme Court. That, too, will cause further delay.

And if, when every appeal has been exhausted, Yohn's decision stands, Abu-Jamal's conviction will remain, but the commonwealth will have to decide whether to hold a retrial for sentencing, or accept life in prison.

The practical effect of a sentencing-only trial is to have to re-try the entire case. Lynne Abraham's successor may face the critical decision of whether Abu-Jamal should live or die. For that reason, the Abu-Jamal case should be question No. 1 for any successor to Abraham.
One likely candidate accepted my invitation to weigh in. City Inspector General Seth Williams is the ex-assistant D.A. who challenged Abraham in 2005 and lost.

He was ready for my inquiry.

"Yes, I have thought about the murder of Officer Faulkner, the trial and appeals process often. I would speak with Mrs. Faulkner and see what her thoughts were because I am mindful of the stress that decades of appeals may cause. But I have a fixed opinion regarding the events of that night, and I agree with the jury's decision based on the law and facts applicable at that time."
Williams correctly notes that in the quarter-century of orchestrated denials on his behalf, Abu-Jamal has never accounted for his conduct on Dec. 9, 1981.

"I appreciate the defendant's right invoke his Fifth Amendment privileges, but . . . if he had testified to what most likely occurred, he would most likely be out on parole now.

"He came upon the scene, and his brother was in some form of a struggle with Officer Faulkner. Mumia shot Officer Faulkner in the back. Faulkner turned around shot Mumia and then Mumia shot Officer Faulkner in the head."

"Reasonable people may disagree on the morality, unjust administration and/or deterrent value of capital punishment. I think we should strive for a society without the death penalty. We definitely have too many aggravators. Nonetheless, absent Mumia or his brother testifying to show some form of self-defense, the jury's verdict was correct with the evidence presented and the settled law provided by Judge Sabo."

Williams' perspective is based, in part, on his own observation. "I went to his [post-conviction] hearings to listen for myself."

And so Mr. Williams has set the bar for 2009. *

Listen to Michael Smerconish weekdays 5:30-9 a.m. on the Big Talker, 1210/AM. Read him Sundays in the Inquirer. Contact him via the Web at http://www.mastalk.com/