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</font><h2><b>Cracks in Mumia’s case</b></h2><font size=3>By Linn
Washington Jr.<br><br>
A clear case of open-and-shut guilt is how Philadelphia police and
prosecutors describe the first-degree murder conviction that sent
journalist Mumia Abu-Jamal to death row over a quarter century
ago.<br><br>
However, just a quick peek underneath the surface of this case reveals a
litany of errors and wrongdoing by police, prosecutors and judges that
implode all claims of Abu-Jamal’s absolute guilt.<br><br>
The case against the world’s most famous death-row denizen arguably
contains compelling aspects of apparent guilt, albeit circumstantial and
lacking the conclusive forensic evidence normally expected in such a
high-profile prosecution.<br><br>
Yes, police did find Abu-Jamal at the crime scene, critically wounded by
a bullet fired from the slain policeman’s gun.<br><br>
Yes, eyewitnesses testified that Abu-Jamal shot Officer Daniel
Faulkner.<br><br>
Yes, two policemen claimed hearing Abu-Jamal confess to the
crime.<br><br>
And, yes, courts from Philadelphia’s Common Pleas up to the U.S. Supreme
Court have upheld Abu-Jamal’s conviction.<br><br>
Yet, arguably compelling aspects cannot quell serious questions arising
from the mound of documented misconduct by authorities in Abu-Jamal’s
case that make a mockery of America’s constitutionally enshrined rights
to a fair trial.<br><br>
While fair trial rights require an impartial judge, the judge presiding
at Abu-Jamal’s 1982 trial declared on the eve of that proceeding that he
would help prosecutors “fry the n----r” — a declaration graphically
displaying unfair bias.<br><br>
Five of the seven Pennsylvania Supreme Court justices who unanimously
upheld Abu-Jamal’s conviction in 1998 received critical political and
other assistance from Philadelphia’s police union — the main group
pushing for Abu-Jamal’s execution.<br><br>
That entanglement undermined the appearance of impartiality required of
jurists by Pennsylvania’s Code of Judicial Conduct.<br><br>
One of those five justices in 1998 — Ronald D. Castille, a former
district attorney of Philadelphia who fought to execute Abu-Jamal —
rejected recusal requests that cited code provisions barring
participation of a judge who had “served as a lawyer in the matter in
controversy …”<br><br>
The “overt hostility of the trial judge and the appearance of judicial
bias during appellate review” render Abu-Jamal’s “verdict and sentence
fundamentally unsound,” Amnesty International noted in its seminal
February 2000 study of this contentious case that recommended a new trial
for Abu-Jamal.<br><br>
<br><br>
<b><u>Facts Don’t Fit<br><br>
</u></b>Consider the fact that the two policemen who claimed hearing
Abu-Jamal confess hours after Faulkner’s fatal shooting waited several
weeks to report this key evidence to detectives.<br><br>
One of those two policemen claiming to hear Abu-Jamal’s confession had
even filed an official report hours after the fatal shooting saying
Abu-Jamal made “no comments.”<br><br>
Exactly 64 days after that officer filed his no-comment report, he told
detectives his delay in revealing the confession resulted from him not
realizing the confession “had any importance until today.”<br><br>
Evidence of perceived injustice underlying Abu-Jamal’s conviction
literally hides in plain sight.<br><br>
One glaring example is photos of the Dec. 9, 1981, crime scene taken by
police investigators that don’t show two central elements of the
prosecution’s case against Abu-Jamal.<br><br>
A main pillar of the prosecution’s case against Abu-Jamal was eyewitness
testimony from a cab driver named Robert Chobert.<br><br>
Prosecutors proclaimed Chobert sat in his cab when watching Abu-Jamal
murder the police officer. But police crime scene photographs don’t show
Chobert’s cab behind Officer Faulkner’s patrol car where prosecutors say
it was parked.<br><br>
The trailer for a forthcoming film about Faulkner’s slaying features four
police photos showing different angles of the crime scene. Chobert’s cab
is not shown in any of those photographs.<br><br>
There are only two possible scenarios for the missing cab in those
official crime scene photos: either police tampered with the crime scene
by removing the cab or the cab was never there. Either scenario is a
major legal violation that should warrant a new trial.<br><br>
Also missing from official police crime scene photographs are bullet
marks in the sidewalk around the fallen body of Faulkner fired from
Abu-Jamal’s gun.<br><br>
Prosecutors claimed Abu-Jamal executed Faulkner by firing four times at
the fallen officer’s body at point blank range, hitting Faulkner once in
the face and missing three times.<br><br>
Yet, a sophisticated computer examination of crime scene photos conducted
a few years ago by a NASA scientist who analyzes deep space photographs
revealed no bullet marks in that section of sidewalk that should be
clearly visible if Abu-Jamal acted as prosecutors claim.<br><br>
It is impossible ballistically for three specialized high-velocity
bullets to strike a sidewalk at point blank range without leaving any
marks.<br><br>
The prosecution’s other prime eyewitness was Cynthia White, a prostitute
with a long arrest record and pending criminal charges at the time of
Abu-Jamal’s June 1982 trial.<br><br>
During Abu-Jamal’s trial, the prosecutor told the jury that White hadn’t
received any offer of leniency or other considerations in exchange for
her testimony.<br><br>
Yet immediately after Abu-Jamal’s conviction, Philly prosecutors dropped
those charges pending against white.<br><br>
<br><br>
<b><u>Examples of Injustice<br><br>
</u></b>Remember that Philadelphia police and prosecutors applied that
“open-and-shut guilt” assertion to four other men arrested for three
separate murders in 1981 — the year of Abu-Jamal’s arrest.<br><br>
One of those four men spent 1,375-days on Pennsylvania’s death row before
evidence documented that police detectives framed him. Two of those four
men spent 20 years in prison before evidence revealed they were innocent.
The fourth man — accused of a killing a cop — won an acquittal from a
jury in 1982 when the only witness against him crumbled in
court.<br><br>
Seventeen of the policemen involved in the arrest or investigation of
Abu-Jamal “were disciplined, indicted for crimes, found guilty of
committing acts of corruption or brutality or resigned from the
department under a cloud of suspicion,” stated investigative reporter
Dave Lindorff in his 2003 book on the Abu-Jamal case. Lindorff’s book
“Killing Time” is the first non-partisan book published on this
miscarriage of justice.<br><br>
What, many in Philadelphia’s Black community would ask, is the likelihood
of corrupt cops not cutting corners to secure the conviction of a person
accused of killing a fellow policeman?<br><br>
The same Philadelphia and Pennsylvania courts that found major flaws in
86 Philadelphia death penalty convictions between Abu-Jamal’s December
1981 arrest and last October declare that not a single error exists
anywhere in the Abu-Jamal case — the murder conviction sparking the most
controversy worldwide.<br><br>
Pennsylvania courts, for example, find no fault in prosecutors improperly
excluding Blacks from Abu-Jamal’s trial jury, or allegations of
manipulating evidence and making secret deals with alleged eyewitnesses —
all fundamental fair trial violations producing favorable actions by
those courts for defendants in numerous other cases.<br><br>
Additional evidence of judicial impropriety against Abu-Jamal is evident
in Pennsylvania State and federal courts voiding 22 death sentences
because of failures by defense lawyers to present any mitigating evidence
for their clients during the death penalty phase hearing following guilty
verdicts in capital cases.<br><br>
Voiding convictions for this reason is called procedural fairness where
courts accept the guilty verdict but seek to ensure that all procedures
are properly followed.<br><br>
Suspiciously, despite voiding those 22 death sentences, state and federal
courts found no fault in the failure of Abu-Jamal’s trial lawyer to
present any mitigating evidence during the penalty phase
hearing.<br><br>
The judge for Abu-Jamal’s trial, the infamous Albert Sabo, holds the
national record for presiding over the most death penalty
trials.<br><br>
While courts have overturned two-thirds of those capital convictions in
Sabo’s court, including citing mistakes or misconduct by Sabo himself,
Pennsylvania state courts claim Sabo made no errors in Abu-Jamal’s
case.<br><br>
Federal courts have voided Abu-Jamal’s death sentence citing errors by
Sabo when providing death penalty phase instructions to the
jury.<br><br>
However, Abu-Jamal remains on death row because Philadelphia prosecutors
are seeking to reinstate his death sentence. Because of harsh death row
isolation restrictions, Abu-Jamal has not hugged his wife and children
for over 20 years.<br><br>
<br><br>
<b><u>Injudicious Judges<br><br>
</u></b>Courts — state and federal — have repeatedly altered and/or
abrogated established law to block Abu-Jamal receiving fair trial relief
granted to other defendants raising the same legal challenges.<br><br>
Precedent, or following established law, is supposedly the foundation of
U.S. jurisprudence. Another foundation of U.S. law is requiring a fair
trial to establish guilt or innocence.<br><br>
A prime example of the alter-the-law-to-undermine-Abu-Jamal dynamic is
the 2008 ruling by a federal 3rd Circuit Appeals Court panel that created
a new legal standard for persons challenging racist jury selection
practices by prosecutors.<br><br>
The prosecutor during Abu-Jamal’s 1982 trial used 10 of 15 preemptory
challenges to purge potential Black jurors — more than twice the
exclusion rate expected statistically with race-neutral
procedures.<br><br>
That newly created legal standard advanced by two 3rd Circuit judges to
reject voluminous evidence documenting racist jury selection practices by
Abu-Jamal’s trial prosecutor erected procedures far in excess of those
then required by existing 3rd Circuit and U.S. Supreme Court
precedent.<br><br>
The third member of that three-judge 3rd Circuit panel issued a stinging
41-page dissent that repeatedly criticized his panel colleagues for
radically changing jury discrimination standards applied by their circuit
and the U.S. Supreme Court.<br><br>
Incredibly, the ruling by that panel’s two-judge majority — later backed
by the full 3rd Circuit — faults Abu-Jamal’s 1982 trial attorney for not
strictly following procedures the U.S. Supreme Court didn’t adopt until
1986 … four years after Abu-Jamal’s trial.<br><br>
Curiously, just days before that March 2008 3rd Circuit ruling, the U.S.
Supreme Court granted a Louisiana death row inmate a new hearing after
finding race tainted jury selection practices during that inmate’s
trial.<br><br>
That U.S. Supreme Court ruling employed preemptory challenge standards
less stringent than those the 3rd Circuit created in its Abu-Jamal
ruling.<br><br>
The author of that 2008 Supreme Court ruling, Justice Samuel Alito,
formerly served on the 3rd Circuit where he participated in rulings
granting relief to inmates victimized by prosecutorial jury selection
improprieties less onerous than those in the Abu-Jamal case.<br><br>
The U.S. Supreme Court rejected Abu-Jamal’s appeal of the 3rd Circuit
ruling.<br><br>
American law is an “instrument of the powerful,” Abu-Jamal stated in his
latest book released earlier this year, his sixth book written from death
row. “For the weak, the powerless, the oppressed, the law is more often a
hindrance than a help.”<br><br>
Abu-Jamal, a former Black Panther and supporter of Philadelphia’s MOVE
organization, is a harsh critic of America’s racially inequitable
society, a posture enraging many powerful people.<br><br>
<br><br>
<b><u>Fundamental Issue<br><br>
</u></b>In 1959, when Abu-Jamal was 4-years-old, the Pennsylvania Supreme
Court issued a ruling that goes to the heart of the most important yet
frequently downplayed aspect of Abu-Jamal’s conviction — a fair
trial.<br><br>
Pennsylvania’s highest court proclaimed that defendants are entitled “to
all the safeguards of a fair trial … even if the evidence of guilt piles
as high as Mt. Everest.”<br><br>
Defendants retain fair trial safeguards irrespective of whether judges or
prosecutors are convinced of the defendant’s guilt before trial.<br><br>
That 1959 ruling prohibiting judges and prosecutors from failing to
follow fair trial procedures came in a Philadelphia murder case where the
defendant pleaded guilty.<br><br>
Abu-Jamal has always maintained his innocence.<br><br>
Evidence shows that politics and prejudice drives the determination to
punish Abu-Jamal, not irrefutable proof of his guilt.<br><br>
Because of that, Abu-Jamal deserves a new trial — a trial that is
fair.<br><br>
<b><i>--Linn Washington Jr. is columnist for The Philadelphia Tribune and
a professor of journalism at Temple University. He has been covering the
Abu-Jamal case since 1981. This article first appeared in the
Philadelphia Tribue on December 5, 2009:<br><br>
</i></b>
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