WRONGS IN CIVIL RIGHTS UNDERLYING ABU-JAMAL’S CONVICTION

By Linn Washington Jr.

During 1981, Philadelphia, Pa police proudly announced making arrests in four separate hi-profile homicides including the murders of two policemen.

However, investigations later revealed that police and prosecutors engaged in serious misconduct in each of those murder cases.

Two of those arrested in 1981 spent twenty-years in prison before newly discovered evidence exposed flawed confessions obtained by police. Another man spent 1,375-days on death row before his release, an ordeal that one judge described as a “Kafkaesque nightmare” due to illegal conduct mainly by police. A jury acquitted the teen arrested for one of the 1981 police killings citing lack of evidence.

Ironically, the one 1981 homicide arrest generating the most attention internationally is the one arrest authorities in Philadelphia declare contains not a single instance of impropriety by either police or prosecutors.

This is the case of Mumia Abu-Jamal – convicted of fatally shooting a Philadelphia policeman in December 1981.

The conviction of death-row journalist Mumia Abu-Jamal is filled with serious violations of fundamental civil rights. Freedom from discrimination is a civil right, yet discriminatory actions by police, prosecutors and judges mare all aspects of the Abu-Jamal case.

The case against Abu-Jamal, cobbled from circumstantial evidence, constitutes a festering sore on America’s justice system. Those demanding Abu-Jamal’s execution cavalierly ignore inconclusive forensics, tainted eyewitness testimony and a specious confession.

Violations comprising the injustice of Abu-Jamal’s conviction include the kinds of structural deficiencies that drive exonerations and official investigations nationwide: police fabricating evidence, multiple instances of prosecutorial misconduct, ineffective assistance of defense counsel plus judicial wrongdoing.

One of the most egregious violations is the public pronouncement by the judge presiding at Abu-Jamal’s 1982 trial that he was going to help prosecutors “fry the Nigger.”

That odious admission by Judge Albert Sabo oozing lack of impartiality and racial bigotry clearly violated Abu-Jamal’s constitutionally guaranteed right to a fair trial.

An essential pillar in a constitutionally fair trial, experts agree, is having an “impartial judge” who does not act as “either an assisting prosecutor or a thirteenth juror.”

Assertions by Abu-Jamal’s opponents that his obvious guilt negates any need for following fair trial procedures contradict long established law.

The Pa Supreme Court declared in a 1959 ruling that defendants are entitled “to all the safeguards of a fair trial…even if the evidence of guilt piles as high as Mt. Everest.”

That fair trial right exists irrespective of whether judges or prosecutors are convinced of a defendant’s guilt, the Pa Supreme Court stated in that ruling issued when Abu-Jamal was four-years-old.

That 1959 ruling arose from a Philadelphia murder case where the defendant had pled guilty. Abu-Jamal has consistently proclaimed his innocence in the shooting death of Officer Daniel Faulkner --- before, during and after his trial.

Even some who feel Abu-Jamal could be guilty as charged also believe Abu-Jamal received an unfair trial.

Respected lawyer/journalist Stuart Taylor, in a 1996 article, asserted that Abu-Jamal “received an unfair trial” despite also contending that a “strong probably” existed that Abu-Jamal killed Officer Daniel Faulkner…when Jamal came to the aid of his brother who was being beaten by Faulkner during a traffic stop.

Echoing conclusions of other investigators, Taylor found unfairness in “grossly inadequate defense lawyering, flagrantly biased judging and, in all probability, police fabrication of evidence and intimidation of witnesses.”

Prosecutors contributed to undermining Abu-Jamal’s fair trial rights by withholding evidence of innocence from the defense and the jury during the 1982 trial. This suppression included withholding evidence of a third person at the crime scene other than Abu-Jamal and his brother. Abu-Jamal’s defense centered on the claim that Faulkner’s shooter fled – a contention consistent with eyewitness reports that Faulkner’s shooter fled.

Violations of fair trial procedures by prosecutors are a problem in Pa and nationwide. An October 2007 American Bar Association report chided top prosecutorial officials in Pennsylvania for not complying with “all legal, professional and ethical obligations to disclose to the defense information…and tangible documents…”

Incredibly, state and federal courts including the US Supreme Court have repeatedly dismissed the vile violations in Abu-Jamal’s case when denying his appeals for a new trial.

Dismissals in the Abu-Jamal case contradict those same courts citing chillingly similar violations when voiding over 200 Pa death penalty convictions since 1978.

The federal Third Circuit Court of Appeals, for example, has voided Philadelphia first degree murder convictions upon findings that prosecutors engaged in racially biased jury selection practices.

Yet, in 2008, a 3^rd Circuit panel dismissed Abu-Jamal’s jury bias claim by creating a new standard for proving that claim.

That new proof standard was far stiffer than that Circuit’s existing precedent, exceeding even jury bias proof standards utilized in a US Supreme Court ruling weeks earlier authored by Justice Samuel Alito, a former 3^rd Circuit jurist.

The dissenting judge in that 3^rd Circuit ruling – the first ever dissent in an Abu-Jamal case ruling – upbraided his panel colleagues for seizing Abu-Jamal’s case to change established procedures.

Adherence to precedent is supposedly a fundamental principle of the American legal system. Patterns of failing to follow precedent produces what is dubbed the “Abu-Jamal Exception” – the practice of judges craftily changing precedent to exclude extending Abu-Jamal the legal relief given to other defendants raising the same legal issues.

Documented violations in this closely watched case convince groups as diverse as Amnesty International and the national NAACP that Abu-Jamal is the victim of double standards of justice. The NAACP approved a resolution at its centennial convention in July 2009 calling on the US Department of Justice to investigate civil rights violations in the Abu-Jamal case.

The enormous attention given to the ‘whodunit’ aspects underlying Abu-Jamal’s contentious conviction easily obscures critical context regarding systemic violations by Philadelphia authorities. Failing to factor in this important context elevates the credibility of fallacious claims about Abu-Jamal’s guilt.

One fallacious claim is that police did not frame Abu-Jamal. Evidence from the now proven improprieties in those three other high profile 1981 homicides refutes this claim.

The case of the 1981 arrest producing that wrongful death sentence provides a compelling example of Philadelphia police framing an innocent man.

Philadelphia police had arrested Neil Ferber six months before their December 1981 arrest of Abu-Jamal, charging Ferber with murdering an organized crime figure.

The judge presiding at the trial where Ferber sought compensation for his wrongful incarceration stated in his post-trial opinion that “a variety of Philadelphia police officers” engaged in a litany of illegal conduct “all for the singular purpose of obtaining Ferber’s arrest and subsequent conviction…”

Common sense compels consideration of the conclusion that if Philadelphia police would callously frame a man for a mob murder police could frame a man charged with murdering a fellow police officer.

Persons rejecting evidence of police framing Abu-Jamal ignore a disturbing fact uncovered by investigative reporter Dave Lindorff, author of a book on the Abu-Jamal case. Lindorff documented that seventeen of the 35 police officers involved in the MAJ investigation were later indicted and/or disciplined for misconduct that included manufacturing evidence designed to frame suspects.

Federal investigations and findings by courts have repeatedly documented illegal practices by Philadelphia police and prosecutors.

In 1979, two years before Abu-Jamal’s arrest, the US Justice Department filed an unprecedented civil rights violation lawsuit against 21 top Philadelphia officials – including the city’s then Mayor – charging them with actively backing violent police brutality…abusive misconduct frequently utilizing fabricated evidence to discredit victims and defend their police assailants.

Claims presented at trial about Abu-Jamal’s alleged confession first arose during an investigation into his complaint of suffering police beatings on the day of his arrest – at the crime scene and inside a hospital emergency room.

During that brutality investigation, two officers suddenly remembered hearing Abu-Jamal confess at the hospital. This pair included the officer who brought Abu-Jamal from the crime scene to the hospital who filed a report three hours after Abu-Jamal’s arrest stating Abu-Jamal made “no comments.”

Authorities fired that officer, Gary Wakshul, three years after Abu-Jamal’s arrest. Police officials fired Wakshul for viciously beating a man, including a near fatal assault inside a hospital emergency room.

In 1978, three years before Abu-Jamal’s arrest, the Pa Supreme Court blasted Philadelphia homicide prosecutors for “perpetrating a falsehood and fraud.” This misconduct included having the former head of the DA’s Homicide Unit provide false testimony against a murder defendant. That Supreme Court ruling specifically criticized the “misleading” testimony of ex-Unit head Ed Rendell, who at the time of Abu-Jamal’s trial, served as Philadelphia’s District Attorney.

Courts – state and federal – have overturned many murder convictions obtained during Rendell’s tenure as District Attorney citing instances of misconduct by homicide prosecutors inclusive of withholding evidence of innocence and engaging in racially discriminatory jury selection practices.

The Pa Supreme Court, in a 1999 ruling involving “extensive and flagrant prosecutorial misconduct” released two reputed Philadelphia mob members convicted of a high-profile murder, ruling this pair was denied a fair trial. That unfair trial took place two years after Abu-Jamal’s trial during Rendell’s DA tenure.

The Pa Supreme released those two mob members directly from prison, one year after its 1998 Abu-Jamal case ruling where that Court rejected voluminous claims of prosecutorial misconduct during Abu-Jamal’s trial and his appeal proceedings.

Incidentally, five of the seven Court justices participating in that 1998 ruling against Abu-Jamal received substantial electoral financing and other support from Philadelphia’s police union – the leading proponent of Abu-Jamal’s execution.

A February 2000 Amnesty International report on Abu-Jamal’s case expressed concern about the “political support” Pa justices receive from police organizations noting the prospect of “severe political backlash” against any justice challenging Abu-Jamal’s conviction.

Pa judicial ethics require judges to remove themselves from cases they handled while serving as government lawyers. Yet, a former Philadelphia DA-turned-Pa Supreme Court Justice – who’s received extensive police union backing – has repeatedly refused to remove himself from Abu-Jamal appeals.

Equal protection of laws is an essential aspect of civil rights. The Blacks Law Dictionary – cited as authority by judges – defines equal protection of the law in part as: “no person shall be denied the same protection of laws which is enjoyed by other persons in like circumstances…”

Pa Supreme Court rulings in 1988 and 1989 provide glaring evidence of equal protection violations.

In March 1988, the Pa Supreme Court issued a ruling granting a new trial to a Pa State Trooper charged with fatally shooting a woman inside a judge’s office. That Trooper shot the woman he accused of burglarizing his home during a court proceeding involving that burglary.

The Court ruled the Trooper did not receive a fair trial because the presiding judge made a single statement questioning the professional credentials of a defense witness. The Court deemed that single statement as offering an improper ‘opinion.’

However, one year later, the same Court found no fair trial fault in numerous opinion laden statements by Judge Sabo during Abu-Jamal’s trial – including Sabo assailing the professional competency of Abu-Jamal’s attorney in front of the jury.

Equal protection violations comprise a consistent thread in the trial and appellate court rejections of Abu-Jamal’s legal claims.

These violations include the U.S. Supreme Court in the early 1990s twice refusing to consider Abu-Jamal’s claim that prosecutors violated his First Amendment association rights with inflammatory references to his teenaged membership in the Black Panther Party.

Although Abu-Jamal had voluntarily left the BPP 12-years before his 1982 trial, prosecutors speciously argued his former BPP membership spurred his killing a cop.

The U.S. Supreme Court, months after rejecting Abu-Jamal’s first appeal, granted a new hearing to a murderer who challenged prosecutorial reference to his current membership in a violent white racist prison gang. Following the favorable ruling for the racist, Abu-Jamal unsuccessfully sought Supreme Court reconsideration of his association right claim citing that Court’s ruling in the white racist’s case.

Months after spurning Abu-Jamal a second time, the Supreme Court granted a new hearing to a white murderer challenging prosecutorial reference of his membership in a devil worshipping cult. When giving relief to the devil worshipper, the Supreme Court cited the precedence of its ruling in the racist’s case.

Equal protection of laws seemingly should have provided an ex-Black Panther with the same protection of laws as a white racist and white devil worshipper given the similarities of their appeal circumstances.

The failures of federal and state courts to correct the gross violations in Abu-Jamal’s case, compounding the illegal conduct of police and prosecutors, cries out for an investigation by the U.S. Justice Department requested by organizations and individuals concerned about America’s bedrock principal of equal justice under law.

It is true that courts enjoy wide discretion in interpreting law as those courts deemed appropriate.

However, the fact that state and federal courts have rejected every evidentiary issue and all but one procedural error issue presented in the Abu-Jamal case raises real questions about courts acting in accordance with the principle of equal-justice-under-law.

To accept the assertion that the Abu-Jamal case is one of open-&-shut guilt free of any error requires embracing scenarios that defy logic, law and the proven official misconduct in those other 1981 Philadelphia homicide arrests.

--Linn Washington Jr. is a Yale Law Journalism Fellowship graduate and Philadelphia Tribune columnist who has investigated the Abu-Jamal case since December 9, 1981 – the day of Abu-Jamal’s arrest.