Abu-Jamal's Last Hope

by Dave Lindorff

The Nation magazine, December 7, 1998

The decision in late October by the Pennsylvania Supreme Court to deny an appeal by Mumia Abu-Jamal of his death sentence for the 1981 murder of a Philadelphia police officer is a travesty that can be corrected only by the federal court system, although thanks to recent efforts to speed up executions and reduce federal court oversight of state death penalties, such intervention is unlikely. Reading the state court's ruling, one cannot help feeling that the judges are twisting themselves into pretzels to deny each of the doomed prisoner's arguments. Taking the ruling as a whole, it is clear that whether or not Abu-Jamal killed Officer Daniel Faulkner, he did not get a fair trial by the State of Pennsylvania.

In their ruling, the state supreme court judges concede that witnesses have changed their testimony and even that they may have been initially coerced or felt pressured into giving false testimony by police and prosecutors-but then, in their wisdom and imagined prescience, they determine that these witnesses' corrected testimony would not have swayed the jury and thus are not grounds for a retrial.

The judges concede that a police officer-whose initial report on the night of the arrest made no reference to a hospital confession by Abu-Jamal but who later changed his report to include, verbatim, an alleged confession reported by two other people at the hospital-did change his recollections. They also concede that this officer was "on vacation" near the end of the trial when the defense sought to call him to the stand, and that the court failed to delay the trial to allow the defense to obtain the officer's testimony regarding the conflicting reports. Yet the judges then conclude that the officer's forgetting of a murder confession was "understandable," and that his vacation and the police department's alleged inability to locate him were "innocent" and not "contrived." A trained police officer doesn't forget a suspect's confession. And in a trial of this prominence, the police would surely have at least known how to reach a key witness if they needed to. The change in the officer's report is critical to a judgment of Abu-Jamal's guilt or innocence.

The appeals judges also make light of the prosecution's use, during the penalty phase of the trial, of incendiary language written by Abu-Jamal a decade earlier when he was a young member of the Black Panthers. Those of us - especially writers - who were more intemperate in our language as teenagers or young adults than we are today should find this use of old writings to convince jurors to have a man executed to be terrifying.

The judges also scoff at the notion that Judge Albert Sabo's onetime membership in the Fraternal Order of Police might mean he was biased. But consider: Abu-Jamal stood accused of killing a police officer. Sabo's FOP membership, even if lapsed, is a clear indication of his identification with the "brotherhood" of the police. Here was Sabo sitting in judgment on a man accused of killing one of the people he had chosen to consider a brother. Of course, he should have recused himself from the case. He did not, and we are left with the appearance of bias in a case that could lead to the death of an innocent man.

If ever a case cried out for retrial, this is it. But thanks to the opportunism of President Clinton, who, in the wake of the Oklahoma City bombing, signed into law the Antiterrorism and Effective Death Penalty Act, it is now extremely difficult for a federal court to intervene and overturn a state court death penalty. In the past a federal judge could look at any capital case fresh on its merits, but under new habeas corpus rules, the defense must convince a federal district judge that the state courts behaved irrationally. Abu-Jamal's defense lawyers will argue that there was irrational behavior, and will also raise Constitutional issues of prosecutorial and judicial misconduct as well as bias in jury selection-which could be grounds for ordering a retrial. Assuming a federal judge agrees to examine this case, a decision could come in days or months. Any appeal of a negative ruling would require permission from the appellate division, and if denied could lead to an execution in thirty to forty-five days. "Public pressure, domestic and international, is important because it at least gives a federal judge pause about treating the case cavalierly," says defense lawyer Dan Williams.

Time grows short for Mumia Abu-Jamal, and it may only be widespread public demands for a retrial that can save him from the gallows.

Dave Lindorff is a writer based in Philadelphia.

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