(Special to the Anti-MOVE Blog)
By: JOHN HAYDEN
Author: Mumia Abu Jamal - The Patron
Saint of American Cop Killers
The appeal papers were filed by Mumia Abu Jamal's attorney and the Philadelphia DA's Office several months ago.
After considerable delay the intermediate federal court, the 3rd Circuit Court of Appeals in Philadelphia, has finally scheduled the appeal for oral argument on Thursday, May 17th at 9:30 AM.
Oral argument is limited to 60 minutes for each side.
The court will hear from Philadelphia ADA Hugh Burns (head of the Appeals Unit) on the prosecution's appeal from a portion of federal District Court Judge William Yohn's Dec. 18, 2001 decision.
It vacated or nullified the unanimous verdict or sentence of death reached by the racially mixed jury (two (2) Blacks, ten (10) non Blacks) on Saturday, July 3, 1982 in Courtroom #253 in the Philadelphia Court of Common Pleas.
When the appeal is decided in a written opinion and order sometime later this year, the convicted cop killer will, subject to possible review and possible changes by the U S Supreme Court in Washington, D.C., either:
A) Be granted a new jury trial; or
B) Be granted a hearing before a Judge on his 1995 petition for a new trial; or
C) Be sentenced to life imprisonment without the possibility of parole: or
D) Be sentenced to death;
E) Be given a new penalty trial before a jury.
Death Sentence Issue
The central legal issue to be decided by the federal Judges after the oral argument is whether or not Judge Yohn's use of a 1988 United States Supreme Court case-law principle (Mills v. Maryland (1988) 486 US 367) was correct, i.e., properly applied in declaring that the typed 1982 Penalty Verdict Sheet, coupled with the trial Judge's oral instructions to the jury on "mitigating circumstances," violated the federal constitution.
A subtext of that issue is whether or not it was proper for Judge Yohn to have retroactively applied that 1988 U S Supreme Court principle to a 1982 capital murder trial when it's obvious that neither the trial Judge, the prosecutor, nor the defense attorney could possibly have been aware of the unknown future High Court decision.
Thus, all three were completely unable to correct any real or imagined "constitutional" defect in the Penalty Verdict Sheet (or in the trial court's oral instruction to the racially mixed jury).
The latter unanimously decided that one "aggravating circumstance" (murdering a policeman in the line of duty) was not outweighed by one "mitigating circumstance" (Abu Jamal's lack of a substantial criminal conviction record)
Cross Appeal of Convicted Cop Killer
In the 1999-2001 federal habeas corpus proceeding the case was decided on the legal papers of the respective parties.
There was no evidentiary hearing.
No one testified before Judge Yohn for or against Mumia Abu Jamal's claims in his petition.
The convicted cop killer completely struck out on all of his claims of legal error in the trial court, the new trial hearing court, and the state appeals court, except he won on his claim that the third page of the typed Penalty Verdict Sheet, violated his 8th amendment and 14th amendment constitutional rights to due process of law and equal protection of the law.
On May 17th the federal appeals court (which usually consists of three (3) appointed (i.e., non elected Judges) will also hear the cross appeal of the remorseless murderer from portions of the same December 18, 2001 lower federal court decision which did several things:
A) Alleged Racial Discrimination - Ruled that the habeas corpus petitioner and his lawyers had failed to demonstrate a prima facie case of racial discrimination by the state's prosecutor, ADA Joseph McGill, in the prosecutor's use of 10 peremptory challenges of venire persons (potential jurors) who, like the defendant, were members of the same distinct racial group, i.e., Black, or African American.
Prima facie means at first glance, or on its first appearance.
Prima facie evidence is proof or evidence that's sufficient - if not rebutted by contrary evidence to prove a party's allegation.
In the federal habeas corpus case (Mumia Abu Jamal, Petitioner, v. Martin Horn (Abu Jamal's jailor) & the Phila. DA's Office, Respondents) the convicted cop killer and his various lawyers have alleged that they've established a prima facie case of racial discrimination by the 1982 prosecutor during the jury selection process.
That process resulted in the selection of four (4) qualified Blacks by the prosecutor, one (1) of whom was peremptorily eliminated as a juror by Abu Jamal himself.
Thus, three (3), not four (4), genuinely qualified Blacks were initially sworn in as fact finders, or jurors.
The term "qualified," in the context of a capital murder prosecution, means that each of the prospective Black jurors appeared to the prosecutor to be not only fair and impartial, with no bias for either side, but also appeared to have no moral, religious, philosophical, or ethical reservation about imposing the death penalty if the prosecutor proved to each person beyond a reasonable doubt that Mumia Abu Jamal was guilty of 1st degree murder of 25 year old policeman Danny Faulkner.
If Abu Jamal wins on the Batson (racial discrimination) issue, one of two things will follow.
The 3rd Circuit panel can either nullify the Friday, July 2, 1982 unanimous verdict of the racially mixed jury - "guilty of 1st degree murder" - and send the case back to the state court (the Phila. Court of Common Pleas) for a brand new jury trial.
Or, the court can order federal Judge Yohn to hold an evidentiary hearing in the federal District Court to determine whether or not the transcript of the early June 1982 jury selection proceeding (the voir dire examination of the jury) contains any evidence that some, or any, of the prosecutor's 10 peremptory challenges indicates unconstitutional racial discrimination on the part of the prosecution.
In 1989 a state appellate court, the Pa. Supreme Court, already ruled unanimously (i.e., without a single Judge filing a dissenting opinion) that:
"We have examined the prosecutor's questions and comments
during voir dire, along with those of the Appellant (Abu Jamal)
and his counsel (African American defense attorney Anthony
Jackson), and find not a trace of support for an inference that
the use of peremptories was racially motivated.
(Commonwealth of Pa. v. Mumia Abu Jamal, a/k/a Wesley
Cook (1989) 555 A.2d 846, at 850)"
In 1998 the same state court - with somewhat different personnel examining the same 1982 trial record - made the exact same ruling. (See: Mumia Abu Jamal-The Patron Saint of American Cop Killers (2006 Edit.) p. 594 in Chapter 16 - "2nd State Appeal Defeat.")
During the period of October 1999 - December 2001 federal Judge Yohn examined the same 1982 transcript of the voir dire examination of the jury (i.e., the Q. & A. between ADA Joseph McGill and the ten (10) African American prospective jurors who were eliminated with peremptory challenges).
The federal District Court Judge found no evidence whatsoever of racial discrimination by the prosecutor in his exercise of peremptory challenges against the 10 Blacks eliminated from serving on the Black defendant's capital murder jury. He ruled that the convicted cop killer had failed to demonstrate a prima facie case of unconstitutional discrimination.
He affirmed both state court decisions by ruling that:
Petitioner (Abu Jamal) points to no improper statement or question by the prosecutor during jury selection. (See: Mumia Abu Jamal-The Patron Saint of American Cop Killers (2006 Edit) at p. 610 in Chapter 17 - "Death Penalty Vacated!! Federal Habeas Corpus Proceeding.")
AND B) "Appeal after appeal" - Ruled that the 1982 ADA did not violate the accused's murderer's constitutional rights during his summation at the end of the 14 day capital murder trial.
The Pa. Supreme Court had already made the exact same ruling in 1989 and again in 1998.
The issue to be determined by the 3rd Circuit is whether the 1982 prosecutor's argument in summation violated the defendant's constitutional rights to due process of law under the 5th, 6th, and 14th amendments of the federal constitution, and thereby requires a new trial.
In his summation in response to an argument previously made to the jury by attorney Jackson, former ADA Joseph McGill argued to the jury that:
If you would find the defendant guilty, of course there would be appeal after appeal, and perhaps there could be a reversal of the case, or whatever, so that may not
Abu Jamal's San Francisco lawyer, Robert Byran, a death penalty specialist with an impressive resume in such cases, claims that this statement deprived Mumia Abu Jamal of the constitutional right of Due Process of Law because it undermined the jury's obligation or burden to find the defendant guilty beyond a reasonable before it could vote guilty as charged of 1st degree murder.
If the remorseless cop killer wins on this issue, the case will not go back to the lower federal court (the District Court).
It will go back to the state court - the Philadelphia Court of Common Pleas - for a new trial.
Abu Jamal will most likely remain in jail pending the new trial.
However, there's an outside chance that the cop killer will be released on bail on the ground that he's spent the last 24 years in prison due to a supposedly unconstitutional guilty verdict.
If the prosecution loses on this Batson issue, the DA's Office will seek to have the U S Supreme Court review the 3rd Circuit's ruling.
For several technical reasons, coupled with the fact that the state (Commonwealth of Pa. represented by the Phila. DA's Office) won in the trial court, won in the new trial hearing court, won in the Pa. Supreme Court (twice) and won (except on the death penalty issue) in the federal District Court, there's a substantial chance that the prosecutor's application for a writ of certiorari to review the 3rd Circuit's ruling will be granted.
Then, if the writ is granted to the DA's Office, a majority of the nine (9) justices on the High Court will have the last word in this absurdly long drawn out capital murder case.
Conversely, if Mumia Abu Jamal loses on this "appeal after appeal" issue (or on the Batson racial discrimination claim, or on the racial bias of the trial Judge issue) Abu Jamal will file his 4th petition for a writ of certiorari to review the ruling of the 3rd Circuit Court of Appeals, the adverse rulings of the 2001 federal District Court, and the adverse rulings of the 1989 and 1998 Pa. Supreme Court.
The convicted cop killer lost all of his previous U S Supreme Court petitions for review.
The odds are against the radio journalist if he tries again, but no one knows how the High Court will rule if the remorseless cop killer files another petition for a writ of certiorari.
AND C) Trial Judge's racism - The federal District Court denied Abu Jamal's habeas corpus claim that he should be granted a new evidentiary hearing on the claims set forth in his June 1995 New Trial Petition (i.e., his Post Conviction Relief Act Petition).
The issue to be determined by the three Judge panel on the 3rd Circuit is whether the 1995 denial of Abu Jamal's petition for a new trial by Judge Albert Sabo should be nullified on the ground of racial and other bias by the hearing Judge, the same Judge who presided over the trial, the same one whom Abu Jamal threatened to kill at the May 25, 1983 formal imposition by the Judge of the racially mixed jury's July 3, 1982 death sentence.
If the Death-Row prisoner wins on that issue, the case will be remanded or sent back to the state trial court for a new hearing by a Judge sitting without a jury.
The DA's Office will petition the U S Supreme Court for writ of certiorari to review that possible ruling.
If Abu Jamal loses on that significant constitutional issue he'll file still another petition for a writ of certiorari with the same court.
The "Fry The Nigger" Issue
The convicted cop killer and his San Francisco lawyer, Robert R. Bryan, claim that the 1982 trial Judge made the following egregiously racist and hopelessly biased remark in a robing room in the courthouse sometime in June of 1982 before the jury selection process began.
I'm going to help them fry the nigger.
"Fry," of course refers to the state's electric chair (which, subsequent to 1982, was later eliminated by the state legislature and replaced by a lethal injection chamber).
"Them," of course, refers to the "racist" cops and the "racist" Philadelphia DA's Office, who, according to Abu Jamal and his loyal supporters in the "Free Mumia! Free All Political Prisoners!" crusade, "framed-up and railroaded" the cab driving radio journalist on December 9, 1981.
Judge Albert Sabo, before he died several years ago, categorically denied that he ever uttered those explosive words.
Plus, due to a ruling by Philadelphia Court of Common Pleas Judge Pamela Dembe (which denied another one of Abu Jamal's truth-challenged "I'm innocent" new trial petitions), there never was an evidentiary hearing on the factual issue created by a Caucasian court steno's written and sworn allegation and the Judge's oral denial.
The court steno never testified before Judge Dembe as Abu Jamal's witness.
The stenographer's credibility and reliability were never tested by a skilled cross examiner - especially one who didn't believe her.
Thus, today, a quarter of a century after the outrageously biased remark was supposedly made in the house of justice, no one knows for certain whether:
A) the woman actually heard what she swears on paper (in an affidavit) that she heard, or
B) she imagined that she'd heard it; or
C) like some of Abu Jamal's truth-challenged witnesses at his July-August 1995
disastrously unsuccessful new trial hearing, she simply made it up to help the
self styled "political prisoner" break his appointment with the executioner.
However, one thing is certain - certain beyond a reasonable doubt - and perhaps even certain beyond any doubt whatsoever.
The female court stenographer never mentioned anything about the trial Judge's racially explosive remark until about nineteen (19) years after she claims to have heard it.
June 1982 Delay
Jury selection in the capital murder case (Commonwealth v. Mumia Abu jamal, a/k/a Wesley Cook) began about six (6) court days before the trial was supposed to commence on Thursday morning June 17, 1982.
In June of 1982 the female court stenographer was part of the system of criminal justice in Philadelphia.
She worked on a daily basis in the courthouse.
She knew the name of the trial Judge's superior - the Administrative Judge who'd assigned the highly publicized capital murder case to Judge Albert Sabo.
She never reported the alleged anti defendant, anti Black incident to Judge Sabo's superior during the six (6) days when the jury selection process took place in the building where she worked.
If she had, and even if the Administrative Judge didn't believe her, nevertheless he most probably would have removed Judge Sabo to prevent the appearance of impropriety.
The professional stenographer had the ability - and the opportunity - to report the alleged blatantly racist incident to someone - anyone - from the time she claims she heard it, until jury selection, with Judge Sabo presiding, began in the second week in June of 1982.
During that period, and during the six (6) days of jury selection the stenographer never reported the alleged racist incident to the Judge she was assigned to work for, to his law clerk, or to the accused murderer's lawyer, Anthony Jackson, (whose law office was minutes away from where she worked in the courthouse, and who was present in the courthouse, her daily workplace, for the six (6) days of jury selection in Room #253).
The stenographer never reported the alleged grossly racist and biased event to any member of the defendant's supportive family -his mother, his sister, or his two (2) brothers, who like Abu Jamal, were present in Room #253 for all or part of the jury selection process.
Indeed, she never reported the outrageous incident to anyone in the city of Philadelphia.
Additional 14 Day Delay
From Thursday, June 17, 1982 (when testimony was scheduled to begin) through the last day of the guilt phase of the trial, Friday, June 3, 1982, the court stenographer never reported the alleged incident to anyone, including, but not limited to journalists from two (2) mainstream daily newspapers, the Philadelphia Inquirer, and the Daily News.
Inquirer reporter Marc Kaufmann covered the trial (and the one day penalty trial) on a daily basis.
She never told him about it.
Both newspapers were - and still are -anti death-penalty in their editorial pages.
Both had regularly published extraordinarily negative articles about "them," i.e., the "racist" cops whom Judge Sabo supposedly said he was going to help "fry the nigger."
On Friday afternoon, July 3, 1982, the court stenographer was working in the courthouse where the most important criminal trial of the year was taking place.
In the late afternoon the entire building almost rocked when the foreman of the racially mixed jury - two (2) Blacks, ten (10) non Blacks - announced that the local African American radio journalist had been found guilty of 1st degree murder of a police officer Danny Faulkner and possession of the instrument of the crime, his own five (5) shot 38 that was found at the crime scene, about 15 seconds after the killing, within Abu Jamal's reach, with all five cartridges fired.
The jury's verdict was all over the local TV and radio news that night.
The guilty verdict was page one news the following day in the two local papers.
The blazing headline on the front page of the Philadelphia Inquirer on the following day, Saturday, July 3, 1982, was:
ABU JAMAL FOUND GUILTY
OF MURDER - COULD GET
DEATH FOR KILLING OFFICER
Underneath the headline and a photo of the newly convicted murderer were some words that the Inquirer's reporter - and everyone in the courtroom had heard - after Abu Jamal heard the jury's verdict of guilty:
This System is finished.
The Philadelphia print and electronic media also reported to the public - and the stenographer - that a penalty trial for the newly convicted murderer was going to take place at 9:30 AM that day, Saturday, July 3, 1982.
All reported that the ADA, Joseph McGill, was going to ask the racially mixed jury to sentence Abu Jamal to death - not life in prison.
In June and July of 1982 the court stenographer was a part of "This System" when she claimed she'd heard the outrageously prejudiced remark about five (5) weeks before the jury's guilty verdict.
The stenographer was still a member of The System when the 1st degree murder verdict was announced in court and later reported in the free press, on radio, and on TV.
At both times she had an obligation as an American citizen, as a decent human being, and most importantly as a paid member of the criminal justice system to report Judge Sabo's alleged egregious misconduct to someone in authority - or to the media - a remark that, if true, and if she had heard it, would have been a flagrant violation of the Judge's oath of office and the Code of Judicial Ethics which demands lack of bias, objectivity, impartiality, and integrity, from trial Judges.
The afternoon or evening of the verdict, or at the very latest on the day of the penalty trial, Saturday, July 3, 1982, the Philadelphia stenographer knew that a 28 year old human being was in jeopardy of being sentenced to death in the electric chair.
She knew that the Judge who would preside over the penalty trial was none other that the jurist whom she now claims was a vicious racist who was going to, in her words:
Help them (i.e., the prosecutor and the police) fry the nigger.
Yet, she never told anyone about the alleged racially biased incident during the entire month of June of 1982 or on Friday July 2nd, or on Saturday July 3rd.
She didn't report the alleged incident to the penalty trial Judge's superior, to the Judge in whose courtroom she regularly worked, to any reporter at the Daily News or the Inquirer, to Abu Jamal's family or friends, or to the Afican-American lawyer for the 28 year old newly convicted murderer whose fate was going to be decided on Saturday, July 3, 1982.
Is it any wonder that many - if not most - folks familiar with this case find it extremely difficult, if not impossible, to believe her now, 25 years after the supposed event?
From July 3, 1982 to May 25, 1983 the convicted murderer's trial counsel, Anthony Jackson, was preparing a motion or application to Judge Sabo to vacate or set aside the jury's verdict of "guilty," and the jury's verdict of "death."
Abu Jamal continued to remain behind bars.
As the jurist who presided over the 14 day jury trial and the one day penalty trial, Judge Albert Sabo was the only person in The System who had the power to either grant the convicted murderer's motion to vacate or deny it.
The woman employed and paid by "This System" never reported the pre-trial remark to anyone in or out of The System during that lengthy time period.
If the racist June 1982 pre-trial event had actually occurred as she described it, the court steno had over nine (9) months to think about it, and to decide what to do about the alleged judicial misconduct.
After all, a man's life was at stake.
Nevertheless, she never reported the alleged pre-trial remark to anyone during that lengthy time period.
If she'd reported it to Judge Sabo's superior in the judicial system, and even if the Administrative Judge didn't believe her, it's virtually certain that he would have removed Judge Sabo from the scheduled May 25, 1983 court proceeding.
It's virtually certain that he would have appointed some other Judge to eliminate the appearance of impropriety in this capital murder case wherein a Black citizen was en route to Pa.'s Death-Row and the electric chair for having murdered a Caucasian cop who was trying to arrest Abu Jamal's younger brother for assaulting him.
On May 25, 1983 Judge Sabo listened to both lawyers' arguments.
Then he summarily denied Abu Jamal's motion to set aside both verdicts.
He promptly carried out the racially mixed jury's unanimous "death" verdict by directing the appropriate person in a Pa. prison to put Mumia Abu Jamal to death in the electric chair.
Abu Jamal and some of the remorseless murderer's loyal supporters in the local MOVE cult promptly threatened to kill the Judge, and the radio journalist shouted to the Judge - in the presence of his dignified mother and his loyal sister:
Fuck you Judge!
Abu Jamal was taken to a local prison where he awaited the preparation of his 1st appeal to the highest court in the state of Pa.
An appeals specialist, Ms. Marilyn Gelb, was assigned by The System to prepare Abu Jamal's appeal.
Additional Delay - 1983-1989
It took from May 25, 1983 to early March of 1989 - five (5) years and nine (9) months - for Abu Jamal's appeal to be prepared by the lawyer, "heard" (on briefs from both sides) by the court, and then determined.
During that period attorney Gelb's law office wasn't far from the courthouse where the court steno worked.
The court stenographer never communicated the alleged pre-trial statement of the trial Judge to appellate attorney Gelb.
She never reported it to the NAACP, or to the National Association of Black Journalists, or to the Black lawyers association that filed a brief on behalf of the former president of the Philadelphia chapter of the NABJ.
She never reported the alleged pre-trial event to anyone in authority in the judicial system, or to anyone at the two local newspapers, or radio stations, or TV stations.
In March of 1989 all of the Judges of the Pa. Supreme Court joined in a decision that upheld all of the evidentiary rulings of the allegedly racist trial Judge and then denied Abu Jamal's appeal.
Abu Jamal remained on Death-Row.
Additional Delay - 1989 -1995
The court steno never said a word to anyone about the trial Judge's alleged pre-trial racist remark for more than five and a ½ years - from March of 1989 through September of 1995.
On June 1, 1995 Abu Jamal's Manhattan based lawyers, Leonard Weinglass, Daniel R. Williams, and Rachel Wolkenstein, filed a lengthy petition for a new trial.
It was based on over two (2) dozen claims of constitutional error committed by the trial Judge and the prosecutor at the June 1982 jury trial, the penalty trial, and, most importantly, during the jury selection process.
Naturally the post conviction proceeding was reported in the free press.
Shortly after the Post Conviction Relief Act Petition was publicized in the media, the Republican Pa. Governor, Tom Ridge, announced that he'd signed a death warrant to be carried out in August of 1995.
This received additional widespread publicity.
The new trial hearing began in July of 1995.
Guess who was the Philadelphia jurist assigned to be the sole fact finder at the July-August new trial hearing?
You guessed it.
None other than the supposedly racist white haired Judge who'd presided over the Death-Row prisoner's 14 day capital murder trial, and the one day penalty trial, and the pre-trial jury selection process.
It was the same black-robed person whom Abu Jamal had insulted during the June-July 1982 trial as an "executioner," a "hangman," and a "black-robed conspirator," and whom Abu Jamal had threatened to kill in open court in front of his own family on May 25, 1983.
It was the Judge whom the author of five books presently refers to in his writings as a "certified maniac."
Guess who didn't alert a single person in the city of Philadelphia, in the state of Pennsylvania, in the entire United States of America, or on the planet earth, that Judge Albert Sabo had boasted in the halls of justice in June of 1982 that he was going to "help them (the prosecutor and the police) fry the nigger?"
The same court stenographer.
The lass never said a word about the alleged June 1982 egregiously racist incident prior to, or during the entire July-August 1995 hearing which was covered in many instances on the front pages of the two local papers, and reported occasionally on Philadelphia radio and TV.
In July-August 1995 the supposedly racist Judge, sitting without a jury (as prescribed by Pa.law), heard witnesses from both sides.
Judge Sabo had the sole power to determine who was telling the truth and who wasn't.
He - not a jury of 12 non lawyers - was the sole decider of the facts.
He, and only he, had the legal authority to decide whether any of Abu Jamal's "Mumia's innocent!" witnesses were credible, and if so, whether or not their testimony required him to set side the 1982 guilty verdict and order a new trial.
He and only he had the sole power to decide all of the legal issues raised in the new trial petition, especially the Batson, or racial discrimination claim.
Of course the most significant constitutionally based issue during the hearing was Abu Jamal's claim that the 1982 ADA's use of ten (10) peremptory challenges to eliminate "qualified Blacks" was racially discriminatory under the 1986 U S Supreme Court doctrine of Batson v. Ky.
In 1995 Judge Sabo had been called out of a well earned retirement and appointed by his superior, the Administrative Judge, to preside over the hearing on Abu Jamal's allegations in his lengthy June 1, 1995 new trial petition.
The hearing itself started in July of 1995.
If prior to that time the court steno had done the right thing, you may safely bet your rent money - or the mortgage payment - that the head of the Philadelphia judiciary would never have appointed Judge Albert Sabo to preside as the sole fact finder.
Not in a million years.
You may safely assume that a Caucasian Judge accused of saying he was going to "help them fry the nigger" would not have been pulled out of retirement to become the sole decider of the race based Batson claim by the Black new trial petitioner, if the court stenographer had reported in 1995 what she later claimed in 1999 that she'd heard in 1982.
The July-August 1995 fact finding Judge heard all of the convicted cop killer's witnesses and all of the Black journalist's Batson arguments, and subsequently filed a written order and decision on September 15, 1995.
He made about 150 findings of fact.
All were adverse to the Black new trial petitioner.
Judge Sabo ruled that the racial discrimination or Batson claim was without merit.
He dismissed Abu Jamal's petition for a new trial.
This important event was also front page news in the city where the stenographer was employed in The System.
It was reported on TV and radio.
The court steno never said a word to anyone about the alleged grossly anti defendant, egregiously racist pre-trial remark by the hearing Judge either at the time the decision was publicized, shortly thereafter, or more importantly, prior to or during the two month evidentiary hearing.
Additional Delay - 1995- 1998
The remorseless murderer's lawyers promptly filed a Notice of Appeal to the Pa. Supreme Court.
The legal beagles then researched, prepared, and filed their legal briefs in support of Abu Jamal's demand that most, if not all, of the fact findings of Judge Sabo in his 9/15/95 decision be set aside as either biased or erroneous.
They demanded that a new Post Conviction Relief Act hearing be granted before a different fact finding Judge.
For about two (2) years, from September 1995 to sometime in 1997 (when the appeal papers were submitted to the Pa. Supreme Court by both sides), the court steno never said a word to anyone about Judge Sabo's alleged 1982 judicial misconduct to Abu Jamal's appellate counsel (Leonard Weinglass and Daniel R. Williams).
She never said a word about it to anyone else - including the seven (7) Judges of the Pa. Supreme Court - while the Death-Row prisoner's lawyers were preparing legal grounds to set aside Judge Sabo's 9/15/95 order denying a new trial.
The Pa. Supreme Court Judges never had the opportunity to decided whether or not Abu Jamal should be granted a new trial or a new PCRA hearing based on Judge Sabo's alleged misconduct because they were never informed that the blatantly racist pre-trial event had occurred.
Abu Jamal's 2nd state appeal was denied in late October of 1998.
Abu Jamal's 1982 1st degree murder conviction was upheld - unanimously,
Ditto the jury's death sentence.
That meant that absent a review proceeding (a "certiorari" proceeding) in the U S Supreme Court (which was never granted) the then 43 year old Death-Row prisoner was well on his way to a one way stroll into Pa.'s death chamber in Rockford prison in Centre County, Pa.
The adverse 1998 Pa. Supreme Court decision was prominently reported by the free press.
The court stenographer said nothing about to anyone.
1999 - Hallelujah! She Talks!
In 1999, the year that Abu Jamal filed his federal habeas corpus petition with the District Court in Philadelphia, the court steno suddenly remembered and speedily revealed a significant event she claimed that she'd observed about nineteen (19) years previously.
Her brief affidavit is published on the remorseless cop killer's Web sites:
mumia.org; & millions4mumia;& free mumia.com.
In 1999 her written and sworn to statement containing the alleged egregiously racist "fry the nigger" claim was announced by Abu Jamal's newest in a long line of "Free Mumia! Free All Political Prisoners!" legal beagles.
It was made the basis of still another unsuccessful petition for a new trial to the Philadelphia Court of Common Pleas.
Judge Pamela Dembe, who was assigned to determine this 2nd PCRA petition, gave the claim short shrift, and dismissed the petition.
The court steno never testified before Judge Dembe as Abu Jamal's witness.
She was never cross examined by a prosecutor familiar with the 1982 trial testimony and the 1995 new trial hearing testimony.
Thus, Judge Dembe's decision, although well reasoned and based on solid state law precedent, never assessed the court steno's credibility or her reliability.
The decision never assessed the court stenographer's reason, or her excuse - if any - for her nineteen (19) year delay in reporting an extremely significant event, the alleged grossly racist and blatantly biased judicial misconduct of a trial Judge impacting the life and liberty of a human being about to be tried in his courtroom in 1982 for capital murder.
Let us - you and me - do so.
Let's assume solely for the sake of argument that prior to the jury selection process in June of 1982 a Caucasian Judge assigned to a capital murder trial for a Black defendant, proudly boasted to a Caucasian court steno who didn't work for him in his courtroom, that:
I'm going to help them fry the nigger.
Let's assume further that he also made several other blatantly injudicious, pro prosecution, pro conviction, and pro execution remarks like this:
I'm going to help the DA's Office and the police railroad this bum into a jury verdict of guilty of
1st degree murder.
I'm going to give an instruction to the jury at the end of the trial that will guarantee to the Philadelphia police and to the DA's Office that the jury will never convict this bum of the lesser crimes of 3rd degree murder or voluntary manslaughter.
I'm going to give the jury an instruction that will steer the jury to convict this bum of the top count in the indictment - 1st degree murder, a crime punishable by death.
Let's assume that the supposedly racist Judge also proclaimed:
After I help the DA's Office and the cops fry this bum, I'm going to go to the place of his execution and ask the warden for permission to personally pull the switch.
Let's assume further that the allegedly racist trial Judge also boasted to the June 1982 court stenographer that:
On every occasion I have to rule on an evidentiary question I'm going to rule in favor of the prosecutor, ADA McGill.
On every occasion that this bum's Black lawyer makes an objection to what ADA McGill is doing, I'm going to overrule the defense lawyer's objection and rule in favor of the prosecutor.
Let's further assume further that Judge Sabo bragged to the stenographer that:
When it comes to allowing prosecution witnesses to testify against this bum, whether the Pa. Supreme Court or the US Supreme Court cases permit me to do so, I'm going to allow that prosecution witness to take the stand and help the absolutely wonderful DA's Office and our valiant Philadelphia police to fry this bum.
Let's assume further that Judge Sabo told the 1982 court stenographer that:
After I help the prosecution and the police convict this bum of capital murder and I preside over his penalty trial, when the defendant's Black lawyer gets to his summation, I'm going to strictly confine him within the boundaries of the rules governing oral argument.
If attorney Jackson tries to argue to the jury anything whatsoever other than mitigating circumstances, with or without an objection by ADA McGill, I'm going to immediately cut attorney Jackson off.
I'm going to threaten to hold Abu Jamal's lawyer in contempt. I'm going to threaten to report his contemptuous conduct to the Bar Association. I'm going to recommend that attorney Jackson's license to practice law be suspended or revoked.
In short, I'm not only going to railroad this Black defendant into Pennsylvania's electric chair, I'm going to rid the city of Philadelphia of his Black lawyer.
Now let's examine the trial record.
Let's see how the allegedly racist trial Judge treated 28 year old Mumia Abu Jamal during his 14 day jury trial, and during his one day penalty trial.
Or, if you wish, go directly to the primary source.
Peruse for yourself the entire transcript.
Decide for yourself whether or not the late Judge Albert Sabo demonstrated any anti defendant, anti Black bias during the proceedings.
The Reality - The Trial Record
No 1. Hospital Confession Witness - During the trial an immensely important issue for the jurors to decide was whether or not Mumia Abu Jamal had made an extremely damaging oral confession or boast outside the entrance to the ER area of Thomas Jefferson Hospital about half an hour after the murder of Officer Faulkner.
The lawyer with the burden of proof, ADA Joseph McGill, was trying, through the testimony of an African American hospital employee, Ms. Priscilla Durham, to convince the jury that the wounded new ER surgery patient had bragged to this female security guard near the entrance door to the ER area that:
I shot the motha fuckah, and I hope the motha fuckah dies!
After this "earwitness" to Abu Jamal's boast or confession testified on direct examination, her credibility was challenged during cross examination by attorney Jackson.
The ADA wanted to bolster or support this crucial witness's testimony by having another hospital employee testify that he'd heard Mumia Abu Jamal make the same arrogant boast in the same area of the hospital.
ADA McGill asked the Judge to allow him to place that "earwitness", another Jefferson Hospital security guard, Mr. James Le Grand, on the stand and tell the fact finders what he'd heard Abu Jamal say.
Over McGill's strenuous objection, the supposedly racist trial Judge - for reasons I've never understood - refused to permit the prosecutor to allow Mr. Le Grand to take the stand.
Judge Sabo refused to allow Mr. LeGrand to tell the two (2) Blacks and the ten (10) non Blacks on the jury what he'd heard at about 4:20 AM, December 9, 1981 at Jefferson Hospital.
That was a judicial ruling which certainly wasn't calculated to, or intended to help the prosecutor "fry the nigger."
No. 2 - Sanction For Trial Obstructionist - Abu Jamal intentionally obstructed the murder trial for two (2) entire court days (Thurs 6/17/82 and Fri 6/18/02).
He deliberately prevented ADA McGill from making his mandatory opening statement to the jury, he kept the impatient jurors twiddling their thumbs in the jury room, he prevented the murdered cop's widow from testifying, he prevented Swat Team police from telling the jurors how they'd observed Abu Jamal at the crime scene, sitting on the curb next to his murder victim, about 15 seconds after the last shot was fired outside 1234 Locust St. in downtown Philadelphia.
On those two days, and on the approximately thirteen (13) other occasions during the trial, when Abu Jamal contemptuously misbehaved in the courtroom, the trial Judge had two options under Pa. Supreme Court and U S Supreme Court rules.
He could opt to remove the trial obstructionist from the jury's presence until he promised to behave, or he could opt to have the sheriff put a gag in his mouth and chain him to the defense table in front of the jurors.
The supposedly racist trial Judge who was supposedly trying to help the ADA and the police send Abu Jamal to the electric chair, opted for the less severe discipline.
On all of these trial obstructing occasions Judge Sabo merely ordered the sheriff to remove the obstructionist from disrupting the trial until he promised to behave.
If Judge Sabo had employed the harsher, and legally authorized discipline, it would have irreparably prejudiced the accused murderer.
The sight of a dread-locked, male, Black, capital case defendant being chained to a table with a gag in his mouth would inevitably have caused the jurors - or at least some of them - to believe that the accused murderer was a wild and dangerous person, thereby making it easier, and perhaps even imperative, for the jurors to remove him from society by finding him guilty.
Judge Sabo, in the exercise of a sound discretion, and as an experienced capital case trial Judge, wisely opted for a different sanction for the stubborn radio journalist who insulted him during the trial as a "hangman," a "black-robed conspirator," and an "executioner," and later threatened to kill him at the formal sentencing proceeding on May 25, 1983.
No. 3 - Objections - The "racist" Judge sustained over 50% of the defense attorney's objections.
Plus, on several occasions when ADA McGill objected to attorney Jackson's questions, the impartial trial Judge overruled the prosecutor's objection, and then allowed the defense lawyer to proceed with his interrogation of a witness.
Granting defense counsel's objections to the prosecutor's questions, and sustaining the defense lawyer's objections to the prosecutor's questions, was a hell of a way for a trial Judge to help the prosecutor and the police "fry the nigger."
No. 4 - Summation Leeway - During the summation of the defense attorney at the one day penalty trial of Saturday, July 3, 1982, there were, strictly speaking, only two issues for the jurors to decide.
1st: Were there any mitigating circumstances ("mitigators").
2nd: Did the mitigating circumstances outweigh the sole aggravating circumstance (murdering a peace officer during the performance of his duty).
Strictly speaking, Abu Jamal's African American lawyer should only have been permitted by the "racist" Judge to argue to the jurors that one, or two, or three mitigating circumstances existed, and that these mitigators weren't outweighed by the fact that the cab driving radio journalist had shot and killed Officer Danny Faulkner while he was performing his duty .
Judge Sabo didn't hold attorney Jackson to that standard on Saturday, July 3, 1983.
The "racist" trial Judge gave the zealous defense lawyer incredible leeway in his emotional, tear-filled plea to the jury to spare his fellow Black's life and vote for life imprisonment as opposed to voting for the death penalty.
Judge Sabo allowed attorney Jackson to argue that if a juror voted for death, that juror would be "condoning 1st degree murder."
Judge Sabo allowed the defense lawyer to argue that the death penalty only existed in primitive countries like Iraq, Iran, and Afghanistan.
The "racist" Judge who was supposedly trying to help ADA McGill "fry the nigger" allowed the defense attorney to get away with this argument against the death penalty:
Although we still have the death penalty or provisions for the death penalty in Pennsylvania, will you one day wonder if in fact in the United States Supreme Court says, well, for whatever reasons, the provisions of the death penalty as it is administered constitutes cruel and unusual treatment? Is it going to be constitutional? Isn't that why one day something can be legal and constitutional, and the very next day it's not? So you are being asked at this moment to decide whether or not it is all right to kill Mr. Jamal.
ADA McGILL: Objection!
Judge Sabo allowed the Black defendant's lawyer to get away with arguing to the jury that they shouldn't vote for the death penalty for his male Black client because historically the "death penalty has been imposed on certain classes of people: poor people, Black people, and men."
He let the lawyer get away with arguing:
Do you want to add to that statistic?
None of the above arguments had anything whatsoever to do with "mitigating circumstances."
Yet, in spite of the Judge's supposed pro prosecution, pro police, anti Abu Jamal, racially bigoted mind set, Judge Albert Sabo allowed attorney Jackson to make arguments that were clearly outside the strict parameters of the three statutory mitigating circumstances that might induce a juror to vote for life imprisonment in lieu of "death."
No. 5 - Charge To The Jury - Most significantly, despite absolutely no evidence whatsoever upon which a 3rd degree murder verdict could rationally be based, the "racist" trial Judge gave the jury an instruction that they might find the accused murderer guilty of mere 3rd degree murder rather than 1st degree murder.
In 1982 3rd degree murder under Pa. law was an unjustifiable, premeditated killing where the defendant intended to "merely to inflict bodily harm" to his/her crime victim, and "not to take human life, and yet as a result of the injury death results."
Mumia Abu Jamal didn't testify. He didn't have the guts.
He knew the prosecutor would chew him up and spit him out on cross examination if he swore that he didn't shoot and kill Officer Faulkner with the 5 shot 38 he'd purchased in his own name on June 27, 1979 - the one found by Officers Shoemaker and Forbes near the murder victim, and right next to Abu Jamal, with all five bullets fired.
The fact finders never heard Abu Jamal claim that he was merely trying to cause bodily harm to his human target and not to take the cop's life when he fired a bullet directly into the forehead of his wounded and helpless victim.
The uncontested evidence at the trial was that the gun owner had placed the muzzle of his five (5) shot 38 close to the face of Officer Faulkner, and fired one shot directly into a vital part of his body -his brain - killing him instantly.
No rational juror could have believed that Abu Jamal intended to cause mere "physical harm" to Officer Faulkner when he shot the wounded and helpless cop in the forehead.
But the law required Judge Sabo to instruct the jury on this lesser included offense of 3rd degree murder, and that's what's the "racist" trial Judge did.
Judge Sabo thereby gave the racially mixed jury the opportunity to avoid convicting the radio journalist of a crime involving the death penalty by convicting him of a lesser crime involving mere prison time.
This was certainly not the way to help the prosecutor and the police "fry" Abu Jamal.
In 1982 voluntary manslaughter was an intentional and unjustifiable killing of a human being without malice, express or implied, "but under the immediate influence of a sudden and intense passion resulting from serious provocation by the person killed."
Neither Abu Jamal nor his brother, William Cook, testified.
There was no evidence adduced by the defense that Abu Jamal experienced a sudden and intense passion as a result of seeing his uniformed murder victim interacting with William Cook.
The only testimony the fact finders heard was that motorist Michael Scanlan saw William Cook punch the uniform cop in the face, and that the assaulted officer retaliated by striking Cook two times, "three at most," in the shoulder upper arm area with either a flashlight or a billy club.
In other words, what the defendant saw was a motor vehicle operator commit a criminal assault upon a uniformed traffic cop who, after being unlawfully punched in the face, used a minimal amount of retaliatory force upon a non vital part of his assailant's body.
Scanlan testified - without contradiction - that he saw Officer Faulkner’s's police cruiser pull over a VW, that the cop and the VW got out of their cars, talked, and then went up to the curb outside 1234 Locust St. Officer Faulkner tried to put handcuffs on William Cook as he was "spread-eagle in front of the Volkswagen."
Then the eyewitness to a street execution observed the following:
While he was spread eagle he swung around and struck the officer in the face with his fist. The officer reacted, trying to subdue the gentleman, and during this time another man came running out from a parking lot across the street towards the officer and the gentleman in front of the police car. I saw a hand come up like this (gesturing) and I heard a gun shot. There was another gunshot when the man got to the policeman, and the gentleman he had been talking to.
And then the officer fell down on the sidewalk and the man walked over and was standing at his feet and shot him twice. I saw two flashes. It could have been two or three. I remember seeing two flashes. I could see that the one hit the officer in the face because his body
jerked. His whole body jerked.
When Scanlan saw the VW driver assault Officer Faulkner with a closed fist:
It sent him backwards, he flinched, his face was thrown to one side.
In response the murder victim:
Pulled out a flashlight or billy club, and reacted by trying to subdue the man, by striking him above the shoulders. This lawful reaction by a crime victim, a uniformed peace officer acting in the performance of his duty, did not constitute a serious provocation lowering Abu Jamal's criminal culpability under Pa. law from 1st degree murder to mere voluntary manslaughter.
However, despite no evidence upon which a voluntary manslaughter verdict could rationally be based, the "racist" trial Judge gave the jurors an instruction that they might find the accused guilty of voluntary manslaughter (punishable by a maximum of 10 years) rather than 1st degree murder (punishable by death in the electric chair).
All of the above may be checked out and verified by simply perusing the trial and penalty trial transcript.
Based on these five (5) record-based examples of the late Judge Albert Sabo's conduct of the 1982 capital murder trial and the one day penalty trial, is it any wonder that almost no one outside the fanatical, blind to reality, "Free Mumia! Free All Political Prisoners!" crusade believes that the 1982 murder trial Judge attempted to help the Philadelphia police and the DA's Office "fry" Abu Jamal during the 1982 capital murder trial?
The author of the most authoritative and comprehensive book on the remorseless cop killer, Mumia Abu Jamal - The Patron Saint of American Cop Killer, writes from the perspective of a former state prosecutor, a former criminal trial lawyer, a former criminal appeals specialist (rape, robbery, drugs, arson, murder, etc), the former co editor of Gilbert's Criminal Law & Procedure (a desk reference book for trial Judges), and a free lance journalist.
The 2006 edition is available at "amazon.com
" and "barnes&noble.com."
An updated version that will include a chapter on the prospective decision of the 3rd Circuit Court of Appeals will be published later this year.