No New Penalty Trial Likely: US Supreme Court Confirms Third Circuit Ruling Lifting Mumia Abu-Jamal’s Death Penalty

Here’s a prediction: Seth Williams, the district attorney of Philadelphia, will decide not to seek to reimpose the death penalty on Mumia Abu-Jamal, the world-famous journalist, former Black Panther and condemned prisoner who has spent the last almost 30 years of his life on Pennsylvania’s overcrowded death row.

The choice belongs to Williams, now that the U.S. Supreme Court has decided, today, on its second time around dealing with the issue, not to overturn the decision of a three-judge panel of the Third Circuit Court of Appeals, which had, on orders of the Supreme Court, reheard, reconsidered and reaffirmed its earlier decision upholding the tossing out of Abu-Jamal’s death sentence by a lower federal district court.

For years since the dramatic 2001 decision by Federal District Judge William Yohn overturning Abu-Jamal’s death sentence on grounds that the trial judge’s instructions to the jury had been faulty and that the jury verdict form was dangerously misleading, Abu-Jamal has remained stuck in brutal solitary confinement at SCI-Green. That’s the super-max facility that houses Pennsylvania’s condemned prisoners, where Abu-Jamal and the others who are actually facing death are denied any human contact either with each other or with close relatives and friends (visits are conducted through heavy bullet-proof plexiglass, with the inmate in chains, for no good reason beyond simple gratuitous cruelty, since escape is impossible). He was kept there for the last decade through the machinations of a vindictive DA’s office, which argued that as long as the lifting of his death sentence was on appeal, he should have to stay put as if he were facing imminent death.

There remains no reason or lame excuse to keep him in that hell hole now, and he should be immediately moved out.

The only way he could face a death penalty at this point would be if the DA, within the next 180 days, were to order up a new trial on the penalty phase of his case, with a new jury hearing arguments for and against sentencing Abu-Jamal to death all over again for the crime he was convicted of back in 1982: the shooting death of white Philadelphia Police Officer Daniel Faulkner. (There is no easy avenue for appeal of Abu-Jamal’s conviction at this point, as all his habeas claims of constitutional violations and trial errors have been rejected by the highest federal courts.)

Already, the wheels are turning against a penalty retrial. Maureen Faulkner, the widow of Daniel Faulkner, who has been a tireless campaigner for Abu-Jamal’s execution, has reportedly told a reporter from the Associated Press, following word of the Supreme Court’s decision, that she “wondered whether it was time to end the long-running drama.” She is quoted as saying she worries about the cost of a rehearing of the penalty issue to the city of Philadelphia, and notes that “many of the relevant witnesses are dead.” Plus she doesn’t want to afford Abu-Jamal any more publicity, she says.

What she doesn’t say, but what DA Williams surely knows, is that if there were a re-hearing of the penalty phase of this sorry case, there is virtually no way that a modern Philadelphia jury would vote to execute Abu-Jamal. First of all, it would not be possible for the DA, who in any case is himself an African-American for the first time in the city’s history, to pack the jury with white people the way the prosecutor did in 1982 (and the way the DA’s office routinely did in felony and especially murder trials until 1986, when the despicable practice, tantamount to lynching, was outlawed by the Supreme Court). Furthermore, Abu-Jamal has been a model prisoner for 30 years, earning a Bachelor’s and a Master’s degree while on death row, writing a number of highly-regarded books, including Live from Death Row, which exposes the horrors of a life waiting for death, and of the nation’s whole prison industrial complex. And of course, he has served those 30 long years in prison, and still faces a future of life without possibility of parole even if he doesn’t face execution. That is bound to seem punishment enough to at least one juror in a panel of 12 honestly selected individuals of the city of Philadelphia, making a unanimous death penalty sentence almost impossible to imagine.

But there is another reason I seriously doubt Williams will retry Abu-Jamal to get the death penalty reimposed: the fear that such a court hearing could lead to a new trial on the conviction itself, which was the result of a trial process which was even more of a travesty, if that is possible, than the portion that led to his death penalty.

This is because in a penalty-phase hearing, in order to refute prosecution claims to a jury that Abu-Jamal didn’t just kill Officer Faulkner, but killed him in a way that was wanton and deliberate and even pre-meditated, Abu-Jamal’s defense attorneys would certainly bring in witnesses, some from the original trial, and some discovered since that trial, who would raise serious questions about the veracity of the original trial’s prosecution witnesses. They could do this because those witnesses were used at the trial to describe not just the supposed shooting, but the vicious manner in which it was supposedly carried out.

Just take the matter of the prosecution’s depiction, in closing arguments during the penalty phase of the trial, of an “execution-style” slaying of Faulkner, with witnesses describing Abu-Jamal standing astride the prone Faulkner, who was supposedly lying “on his back,” and firing four shots downward almost point blank, hitting the officer once between the eyes.

As my colleague Linn Washington and I prove convincingly in a gun test we ran last year, this story had to have been a fabrication, because three of those shots missed Faulkner, and there is no sign of bullet impacts anywhere in the concrete sidewalk around the bloodstained spot where Faulkner’s body was lying. That lack of evidence would raise questions about whether the prime witness describing that certainly brutal slaying story could actually have seen what he told the jury he saw.

The witness in question, a young white taxi driver named Robert Chobert, claimed at the trial that he had parked his taxi directly behind Faulkner’s parked squad car. The shooting was said to have occurred on the sidewalk two cars forward of Chobert’s taxi, meaning he would have been viewing it diagonally from his seat at the wheel, through at least the front and rear windows of the parked squad car and perhaps the parked VW Beetle belonging to Abu-Jamal’s brother Billie Cook, too — this at night and with Faulkner’s dome lights and tail lights flashing in his eyes. But on top of this, there is no crime-scene photo showing Chobert’s taxi cab parked behind Faulkner at all, and the likelihood is that he was not even a witness.

Newly discovered film footage of the shooting scene from a local ABC Channel 6 archive. Note the absence of any taxi parked behind Faulkner's squad car. (Courtesy of Ted Passon)

Update: Philadelphia filmmaker Ted Passon has just discovered in the archives of local ABC affiliate Channel 6 “Action News” footage taken of the scene of the Faulkner shooting showing police in the dark early morning hours of Dec. 9, 1981 putting barriers in place around the crime scene. Faulkner's squad car is plainly seen, as is Billy Cook's VW ahead of it, and a Ford sedan ahead of that, but there is no sign of Chobert's taxi, which should be in the foreground parked behind Faulkner's vehicle. A still of that video segment is posted above, courtesy of Ted Passon.

It would also certainly be presented by the defense at any penalty hearing that contrary to the trial prosecutor’s assertion to the jury that “this man” (Chobert) had “no reason to lie,” he actually had plenty of reason to do so.

The original jury, thanks to a biased and clearly ludicrous decision by the trial judge, Albert Sabo, never was informed that Chobert at the time he allegedly parked behind Faulkner’s vehicle, and at the time of the trial, was driving on a driver's and a hack's license suspended for a DWI conviction, and that he was on probation for felony arson, for the fire-bombing of an elementary school!

Furthermore, it only became known to the defense in 1995 that Chobert had also asked the prosecutor if he might be able to “fix” his driver’s license problem (a request that the prosecutor should by law have immediately made known to the defense, and to the court, since even if he did nothing to help Chobert, it meant that Chobert was likely to have been hoping for a reward for testifying favorably for the prosecution).

Of course, this is only one example of the peril posed to the state’s case against Abu-Jamal by any public rehearing on his death penalty. There are many, many more such perils, too.

While on the one hand, it is surely a relief—and a victory for Abu-Jamal and his supporters — that this atrocity of a case will almost certainly not result in Abu-Jamal’s execution, thanks to the Supreme Court’s decision to stay out of it, in a perverse way, on the other hand it is also unfortunate. This is because once Abu-Jamal is sentenced to life without parole rather than to death, and is transferred to a general prison population, where he will have freer access to his loved ones and to the public, as well as to the state’s huge prison population, the national and global movement to free him will likely weaken, for he will no longer be the icon of the anti-death penalty movement that he has been while facing death.

He will of course be able to combat this potential loss of attention to his case thanks to his journalistic skills, which will be easier to apply once he’s sprung from SCI-Green and has at least occasional access to a computer and to a library. But let’s face it: remaining a leading symbol of the nation’s death penalty madness will be harder once the threat of execution is finally lifted.

This means that those of us who believe that Abu-Jamal’s original trial was a scandal of the worst proportions, and that his guilt was never proven, thanks to the epic misconduct of the prosecution, the induced lying by prosecution witnesses, the clear pro-prosecution bias of the judge, the ineptness of the defense attorney, the packing of the jury, the lack of funding for any defense experts, and myriad other flaws, will have to work all the harder at trying to win this long-suffering victim of the American injustice system a new trial, not on the penalty, but on his original conviction.