Analysis of the Pennsylvania
Supreme Court Decision
On Mumia Abu-Jamal
By C. Clark Kissinger
The Pennsylvania Supreme Court (PSC) has now turned down the appeal of Mumia Abu-Jamal for a new trial. Mumia is a lifelong political activist, a Black man, a writer, a father, and a revolutionary. Falsely convicted of the first degree murder of a police officer, he has continued for over 16 years to wield his pen in the interests of the people from death row. His case has become a momentous legal, political, and moral struggle that concentrates some of the most burning issues of the day.
In recent years his legal team has compiled a court record that shows conclusively that Mumia's 1982 "trial" was a travesty of justice. Yet on October 30 -- "mischief night" -- the PSC released its unanimous decision. By rejecting a new and fair trial for Mumia, the Pennsylvania high court has now sent this case hurtling onto a new, faster, and more dangerous course.
Never in recent history has such a farcical judicial proceeding been so thoroughly dissected and exposed, as were the "trial" of Mumia Abu-Jamal in 1982 and the subsequent hearings for a new and fair trial. Federal courts have been overturning approximately 35% of the death penalty cases brought before them because of gross error by state courts -- usually on issues far less substantive and numerous than those raised in Mumia's case. Yet in Mumia's case . . .
--The PSC found that every single defense witness was not credible, including all the witnesses who testified either that a different person was the shooter or that another man was seen running from the scene. --The PSC found that every single witness presented by the prosecution and the police was completely credible, including those who changed their stories to implicate Mumia and who received favors from the police. --The PSC found that there was no problem at all with the prosecution using peremptory challenges to knock at least ten prospective Black jurors off the panel, even though this practice has been outlawed by the U.S. Supreme Court. --The PSC found that Judge Sabo was not at all biased against the defense, and that he ruled correctly on every instance of excluding evidence that would aid Mumia. --The PSC found that there was no problem with Mumia's legal representation in his 1982 "trial," and that he was properly removed both from representing himself and from the courtroom itself for most of his "trial." --The PSC found that it was perfectly permissible to use Mumia's earlier membership in the Black Panther Party in argument to the jury for his execution, even though the U.S. Supreme Court had barred a similar argument for a white prisoner who had been a member of a white racist gang. --And the PSC found that there was no problem with excluding the 600+ pages of FBI surveillance files from the hearings for a new trial on the farcical reason that there was no authentication that these were in fact FBI files!
The unanimous opinion of the Pennsylvania Supreme Court that there was not a single flaw in the judicial railroad of Mumia and to deny his appeal on every single issue is not the result of an impartial judicial review, but is the result of a political decision made at the highest levels to press ahead with the execution of Mumia Abu-Jamal.
Given the new federal Effective Death Penalty Act of 1996, that requires federal courts to accept the findings of state courts regarding factual issues, state courts like those in Pennsylvania can now abuse the process by tailoring the official record to defeat effective review.
To see exactly how that is done, let's dig into some of the points made in the PSC denial of Mumia's appeal.
The Issue of Judge Sabo During his many years on the bench, Judge Albert Sabo became notorious as a vitriolic, pro-police jurist. He had the unique distinctions of presiding over more death sentences than any other sitting judge in the United States, and being denounced by a group of former district attorneys who had appeared before him. Sabo presided over both the 1982 "trial" and the hearings in 1995-97 for a new trial. With Mumia and his attorneys, he was arrogant, nasty, and openly biased.
The PSC found that "there were certainly instances in the record where the judge displays displeasure or impatience," but concludes that these were the result of the conduct of Mumia's attorneys. (Here we should recall that Sabo did more than display displeasure, he fined Leonard Weinglass for contempt and had Rachel Wolkenstein taken out of the courtroom in handcuffs!) And in response to criticism of Sabo's outrageous conduct by Philadelphia's major newspapers, the PSC says: "The opinions of a handful of journalists do not, however, persuade us that Judge Sabo's decision not to recuse himself [step aside from judging the case] was in error. Moreover, our careful review of the proceedings reveals that none of the challenged behavior on the part of Judge Sabo evidences an inability to preside impartially."
With regard to the allegation that Sabo always ruled in favor of the prosecution, the PSC says: "we cannot conclude that any of the rulings were legally improper" and "Judge Sabo displayed no such adversarial position towards Appellant [Mumia]."
The Refusal of Discovery Defendants at the appeals level normally have the power of the court to compel potentially favorable evidence to be sought out and produced. This process is called "discovery." The new evidence that has been uncovered by Mumia's legal team in the last few years made it plain that the police and the District Attorney's office had improperly withheld evidence and threatened witnesses. To get to the bottom of this, Mumia's attorneys asked Judge Sabo to order the files of the DA and the police to be produced, but Sabo refused.
In response to this, the PSC now claims that Mumia had no rights of discovery in his hearing for a new trial, and to add insult to injury they added that "Appellant received extensive discovery during the course of his trial in 1981-1982." In other words, the only evidence against the police Mumia was going to get was whatever his ineffective, court-appointed counsel asked for 16 years ago before any of the new witnesses came forward!
Officer Wakshul and the Confession Hoax Two months after Mumia's arrest, and after he had filed police brutality charges, the prosecutors and police fabricated the story that Mumia had loudly and publicly "confessed" to shooting Officer Faulkner. A big problem with this invention was that Officer Wakshul had written in his report on the evening Mumia was shot, beaten, and arrested, that "the negro male made no statements."
When Mumia's attorney tried to subpoena Wakshul at the 1982 trial, prosecutors claimed that he was away on vacation (when he was actually at home and available) and Sabo refused to grant a delay in the trial until Wakshul could be made available.
In 1995 Wakshul was finally brought into court, and not surprisingly he fell in line with the confession hoax and testified that he had indeed heard Mumia "confess." So why had he written just the opposite in his report? Wakshul said that he failed to report it because he was emotionally overwrought. Judge Sabo ruled that this explanation was credible, and the PSC decision says "we agree with the PCRA [Post Conviction Relief Act] court's conclusion that there was no credible evidence that Wakshul fabricated the confession."
The Coercion of Witnesses and Withholding of Evidence It was the PCRA hearings in 1995, -96, and -97 that established that Mumia's 1982 "trial" was characterized by witnesses changing their original stories to implicate Mumia, and by the police hiding evidence and witnesses from the defense. Yet the PSC asserted that there was neither suppression of evidence nor the offering of deals or favors. For example, the high court found that the prosecutor had done nothing to help prosecution witness Robert Chobert get his suspended drivers license back. That's right. They simply let him go on driving his cab without a license!
With regard to Cynthia White and Veronica Jones, the PSC ruled that "there was no evidence of any such 'deals' or 'favors.'" To reach this conclusion, the PSC simply ignored the testimony on how Cynthia White was released on no bail from a serious felony charge at the request of the Philadelphia Police. And Veronica Jones's children were indeed not taken away from her as police had threatened, when she changed her testimony to deny seeing two men jogging away from the scene. Most people would call these deals or favors.
Veronica Jones originally told the police truthfully that she saw two men jogging from the scene of the shooting. Yet at trial, under police pressure, she said she did not see that. In 1996 she came forward to admit that she lied at the 1982 trial. The PSC does a sleight of hand by charging that Jones' testimony is unreliable because it is recanted testimony. Technically, Jones was recanting her false testimony given at the 1982 trial. But what she did in fact was to return to her original truthful information given to police officers who first questioned her. Her new testimony is highly reliable because it is substantiated by the officers' written notes from 1981.
Dessie Hightower was the only witness given a polygraph test back in 1981, presumably because he did not support the police version of the facts. Hightower was told at the time that he had passed the test, but the very existence of the test was withheld from the defense. At the PCRA hearing in 1995, the prosecution claimed that Hightower has failed the polygraph, but then, with Judge Sabo's support, still refused to give the test to the defense! The PSC put the Hightower issue to rest with the conclusion: "we cannot second guess the PCRA court's determination." [Again, the "PCRA court" refers to the hearing before Judge Sabo seeking a new trial under Pennsylvania's Post Conviction Relief Act.]
Witness William Singletary told the PCRA hearing that police had torn up two statements he made about what he had seen, and would not release him until he signed a statement that they had dictated. He also testified that two cops came to the gas station he owned and threatened him. Not surprisingly the PSC agreed with Judge Sabo's finding that Singletary was not a credible witness.
The PSC was not disturbed that the prosecution withheld from the defense the fact that an application for a duplicate drivers license belonging to Arnold Howard was found in the slain officer's pocket. Howard had loaned the application to one Kenneth Freeman, who was a partner of Mumia's brother whom the slain officer had stopped for a traffic offense. In 1995 Howard testified about his questioning by police the day of the shooting. The PSC rubber stamped Judge Sabo's finding that Howard is not a credible witness, and ignored the fact that this physical evidence and Howard's questioning about it had been kept a secret from the defense for 13 years.
Even more interesting is the treatment of William Harmon. Harmon was a prisoner in Pennsylvania who contacted the defense team and claimed to have been a witness to the 1981 shooting. At the 1995 PCRA hearing, Harmon gave a version of the events that was totally different from that of all other witnesses, and involved two different shooters. Judge Sabo duly declared his testimony to be "absolutely incredible." But Harmon was not a witness called by the defense. After the defense team interviewed him and ascertained that he was not a credible witness, they did not put him on the stand. It was Judge Sabo who ordered Harmon to testify over the objections of the defense! Harmon was a "ringer" inserted into the hearings by Sabo in an attempt to discredit the defense witnesses in general.
Witness Sharon Smith testified how police arriving at the scene beat Mumia, crying "Kill the Black motherfucker!" The PSC again rubber stamped Sabo's finding that Smith was not a credible witness. Another defense witness, Pamela Jenkins, who testified about police coercion of witnesses was also found to be not credible. Similarly they dismissed the threats made against William Cook, Mumia's brother, that led him not to testify in 1995. Much is made of the fact that Cook did not testify in the 1982 trial, but he was available then and for some reason the prosecution did not want to put him on the stand.
[For more details on these witnesses, see "The KGO-TV Report: A Case Study in Irresponsible Journalism," by C. Clark Kissinger and Leonard Weinglass.]
The FBI Files One of the important pieces of evidence uncovered by Mumia's legal team is the 600+ pages of FBI files documenting the years of surveillance of Mumia, and the working relationship between the FBI and the Philadelphia police. Not only did the prosecution not disclose the existence of this material at Mumia's "trial," but Judge Sabo refused to allow it to be admitted in evidence during the hearing for a new and fair trial.
Mumia's FBI files (heavily edited) had been obtained from the FBI under the Freedom of Information Act. The PSC ruling on this matter is so incredible that it deserves to be given verbatim: "The court's [Sabo's] ruling on this issue did not constitute an abuse of discretion, but rather constituted a proper evidentiary ruling. Absent any authentication that these files were, indeed, FBI files, there is simply no basis for their admission."
The Issues of Representation Despite the fact that Mumia's trial attorney in 1982 told the court that he was unprepared to try the case and did not have sufficient funds for expert witnesses, the PSC found no problems with Mumia's representation. They also upheld Sabo's denial of Mumia's right to represent himself. The blame is put on Mumia here, claiming that he was disruptive. This, of course, dodges the fact that Mumia only became disruptive (and righteously so!) to protest his removal as pro se counsel and the turning over of his case to the court-appointed attorney. <P> Then, in a chilling reminder of the nature of class justice in America, the PSC went on: "While an accused is constitutionally guaranteed the right to the assistance of counsel that right gives to a defendant only the right to choose, at his or her own cost, any attorney desired [emphasis in the original]." Only those with money are going to get the attorney of their choice.
The PSC also approved the meetings between the prosecutor and the court-appointed defense attorney in Judge Sabo's chambers without Mumia being present.
Other Legal Issues Mumia's attorneys also challenged a number of remarks made by the prosecutor in the courtroom that had the effect of prejudicing the jury, but the PSC said that they were "not outside the bounds of permissible oratorical flair." The PSC said that it was permissible to urge conviction, not on the grounds of the evidence, but "on some generalized grounds, such as to protect society or preserve civil order." The PSC upheld several instances in which the prosecutor vouched for the credibility of certain witnesses to the jury (the jury is supposed to make the determination of credibility).
Other issues on which the court upheld Judge Sabo were the use of peremptory challenges to knock Blacks out of the prospective jury pool, the removal of the only juror that Mumia helped to select when he was functioning as his own attorney, and the confusing wording on the form used by jurors to record their verdict.
Dawson v. Delaware In this landmark decision, the U.S. Supreme Court held in 1992, that a defendant's exercise of his constitutionally protected rights of free speech and association could not be used as an argument for the imposition of the death penalty. In the Dawson case, prosecutors told the jury that Dawson had been a member of the Aryan Brotherhood, a white racist prison gang. The U.S. Supreme Court, in a decision written by the Chief Justice, was zealous in upholding Dawson's right to have been a member of white racist organization, without having it used against him in an unrelated issue.
What the PSC doesn't dare mention, is that the Delaware Supreme Court had upheld the use of political affiliations in the argument for a death penalty in the Dawson case by citing as precedent a similar case from neighboring Pennsylvania: the case of Commonwealth v. Mumia Abu-Jamal. So the U.S. Supreme Court shot down this practice that was explicitly based on Mumia's case.
The PSC tries vainly to wiggle out of this massive contradiction by claiming that there was a relevant connection between Mumia's membership in the Black Panther Party ten years earlier, and his character at the time of the alleged crime.
In this decision the PSC also asserts that the printed interview of Mumia that was read to the jury includes statements by Mumia advocating violence against the police. This is simply a lie. In the interview Mumia describes violence by the police against the Black Panther Party.
Pennsylvania's Death Penalty In the last few months a major academic study on the use of the death penalty in Pennsylvania has shown that its disproportionate application to people of color is greater than that of most Southern States. This study was submitted in full to the PSC.
On these issues, the PSC had this to say: "Appellant claims that he repeatedly attempted to offer proof that Philadelphia County defendants were more likely to receive the death penalty and that sixty percent of the death row inmates in Pennsylvania are African-American, but was denied the ability to present evidence establishing such racial and geographic disparities. Our review of the record reveals, however, that Appellant never offered competent proof of such claims."
The Pennsylvania Supreme Court Unlike some state supreme courts, Pennsylvania's high court is not composed of justices appointed for life and thus at least give the appearance of being insulated from politics. Quite the contrary, the PSC is composed of judges who periodically stand for re-election in partisan political campaigns, and who solicit and accept endorsements and campaign contributions.
One of the most notorious justices of the Pennsylvania court is Ronald Castille. As a former Philadelphia District Attorney, the papers opposing Mumia's earlier appeals were submitted under his name. Castille's name also appears on a recently revealed video tape used to train assistant DA's in how to knock Black jurors off of juries without appearing to do it on the basis of race.
In 1986, Castille was selected as "Man of the Year" by Lodge No. 6 of the Fraternal Order of Police, and the FOP endorsed him in his run for the Supreme Court in 1993. The FOP has played the major role in making public demands for Mumia's execution. Understandably, Mumia's attorneys asked Justice Castille to recuse himself [not take part] in this decision.
Justice Castille refused to step aside in this case, and made the following remarkable response: "At the outset, I note that the very same FOP which endorsed me during earlier electoral processes also endorsed Mr. Chief Justice John P. Flaherty, Mr. Justice Ralph Cappy [who wrote the Mumia decision for the court], Mr. Justice Russell M. Nigro, and Madame Justice Sandra Schultz Newman. If the FOP's endorsement constituted a basis for recusal, practically the entire court would be required to decline participation in this appeal."
Not a bad idea! The fact that five of the seven justices are FOP candidates goes a long way toward explaining why the PSC could not find a single error in the entire 17-year-long railroad of Mumia Abu-Jamal.
What All This Means There is a growing consensus in the halls of power on a political program of criminalizing Black youth, using prisons and death chambers to "solve" the problems of poverty and social breakdown, and the use of police powers to suppress radical or revolutionary opposition. Mumia has become a pole around which opposition to this program is gathering, precisely because of his uncompromising resistance to this whole agenda.
Earlier this year I wrote "I want to stress that what is discussed here is the legal aspect of our struggle. It is a critical arena for this struggle, but it is also their arena, run by their rules. The people are going to fight in that arena, but we also have a broader arena where WE set some of the rules. It is very important that we not ignore the critical moment when the Pennsylvania Supreme Court rules, and think 'Oh, it doesn't mean much, there's going to be a stay and more appeals.' On the contrary, a negative decision would signal a political decision to go for Mumia's execution, and he will immediately be into the speeded up federal execution mill. . . . [If that happens] we must be prepared to take the struggle to a whole new level."
That assessment holds even more true today. In the last year our movement HAS grown, with events like the Peoples Tribunal, major street demonstrations, Philly Freedom Summer, the full page ad in the New York Times, concerts and the hundreds of local programs that have taken place. The battle to save Mumia increasingly rallies a new alliance of the Black community, the youth, prominent people and major organizations from religious, immigrant, anti-death penalty, civil liberties, and legal communities. And increasingly Mumia's voice is heard among the most oppressed, those with "nothing to lose." But at the same time we must soberly assess that we are still not at the level where the government feels that it would be simply too dangerous for it to proceed with its vicious plan to execute Mumia.
So we have to think about what it really means to "take the struggle to a whole new level." It means that Mumia's case must become the unavoidable topic of talk shows and radio call-ins, of debates and columns in newspapers, in the arts and major cultural events, of campus teach-ins, of union resolutions, and in religious gatherings. It means that Mumia's name has to be so well known that millions are following the debate and the struggle over his case. It means that elected public officials, major social and religious organizations, and prominent figures cannot avoid taking a stand. Because today, where you stand on the case of Mumia Abu-Jamal is the benchmark of where you stand on social justice. People have to be compelled to speak to this.
There also has to be a rising storm of determined actions. Is there not something to be learned from the prominent politicians and artists who were arrested for sitting before the doors of the South African embassy, from the religious activists who sheltered refugees from Central America in defiance of the law, from the parents of those murdered by the police who take the battle right to the precinct doors, from the students who took over campus buildings, held teach-ins, and refused to let "business as usual" proceed during the Gulf War, and from the way the people of Los Angeles refused to accept the verdict freeing the cops who beat Rodney King?
All this is what it means to raise our movement to the breadth, diversity and determination that is required. It is up to the people to make justice happen. The time is now.
(November 5, 1998)
© C. Clark Kissinger. Permission is granted to reproduce this article for any purpose consistent with the defense of Mumia Abu-Jamal if properly credited to C. Clark Kissinger, Refuse & Resist!