The Third Circuit Court of Appeals was correct when, on April 26th, it ruled that Mumia Abu-Jamal should not be executed as a result of being found guilty of the 1981 shooting death of police officer Daniel Faulkner. That original decision resulted from jury instructions given by trial Judge Albert Sabo in 1982 that were so flawed that they could have misled the jurors into thinking that they had to be unanimous regarding mitigating factors that could have resulted in a life sentence instead of death. That ruling—which was required based on the U.S. Supreme Court’s 1988 Mills v. Maryland precedent and which was perfectly consistent with the revisions made in death penalty hearing forms promulgated by the Pennsylvania Supreme Court’s Rules Committee in 1989—was a good start, but it needs a great finish, which would be the immediate release of Mumia. And here’s why.
Let’s deal with a few of the irrefutable factual points and then at least one unarguable legal point. Here’s the first fact: The prosecution’s own ballistics expert performed standard tests to determine whether the gun that Mumia supposedly had was the same one from which the fatal bullet was fired. However, that expert conceded that the tests were “inconclusive.” In other words, that gun was not shown to have fired the shot that killed Faulkner.
The second fact is that the police—who had Mumia in custody at the scene of the crime they say he committed—claimed that due to an oversight, they failed to perform the standard gunpowder residue test on Mumia’s hands. An oversight? In a high profile case involving the alleged cold-blooded execution of a heroic white police officer by a supposedly crazed black revolutionary? Or is it more likely that they did perform the test but didn’t get the results they wanted so they destroyed the evidence because if there’s no gunpowder on Mumia’s hands then he couldn’t have fired a gun? They certainly couldn’t admit that. By the way, they did test his jacket and Faulkner’s jacket and found gunpowder residue on both because they had been shot—so why not test Mumia’s hands? Hmmm.
The third fact is that the widely publicized assertion that Mumia confessed by saying: “I shot the motherfucker, and I hope he dies” is shaky at best—and completely fabricated at worst. No one had heard anything about a purported confession until a police officer, not a few minutes into the investigation but 64 days into it mentioned it. When asked why in the world it took so long to report such critically important evidence, the officer said he hadn’t realized its importance and also had forgotten because he had been emotionally overwhelmed. He actually said that. And this was despite the fact that another officer who had been with Mumia from the time he was found lying in the street until the time he was being treated in the hospital wrote that “the Negro male made no comment.” And a physician stated that the life-threatening bullet wound in Mumia’s chest made it medically impossible for him to have spoken at all.
As an aside, albeit an important one, there was only one alleged eyewitness account to the actual shooting as verified by in-court police documents. This is contrary to widespread media accounts of out-of-court statements by police and prosecutors that there were several eyewitnesses to the actual shooting. The one eyewitness, Cynthia White, was a very popular and very busy prostitute in the neighborhood where the shooting occurred; she testified that Mumia—while firing—was running toward Faulkner immediately after the officer and Mumia’s brother, Billy Cook, had begun walking together to the police car where they arrived without incident. But this is contradicted by another prosecution witness whose name is Robert Chobert and who did not see the actual shooting but said that Faulkner had spread Billy across the car and was swung at and punched by Billy. By the way, isn’t it quite curious that the only supposed eyewitness later got all of her many pending criminal charges (i.e., those resulting from numerous hooking arrests) summarily dropped? And what about the white female court stenographer who heard trial Judge Sabo say, “I’m gonna help the prosecution fry that nigger?” And speaking of Sabo, isn’t he the same judge who had 24 of the 32 death penalty cases he presided over reversed?
And as far as the law is concerned, the U.S. Supreme Court in Batson v. Kentucky made it clear that a defendant is denied a fair trial when the prosecution unconstitutionally excludes blacks from the jury panel through the use of peremptory challenges. In Mumia’s case, the D.A.’s office used 10 of 15 peremptories to dump African Americans, and later got rid of another. That means the prosecutor used about 70 percent of those challenges to knock black folks off the jury. Based on this, even the Third Circuit in 2008 came very close, in a razor-sharp, 2-1 vote, to going beyond its mere re-sentencing order to actually ordering—shockingly—a re-trial. And to those who think that only bleeding-heart liberal judges have been issuing orders to save Mumia’s life, it was two George H.W. Bush appointees on the Third Circuit in 2008 and 2011 and a Reagan appointee on the District Court in 2001. I guess the proper interpretation of the law can sometimes cut across party lines.
These are just a few of many irrefutable factual points and at least one of many unarguable points of law. You can agree if you like. Or you can disagree if you like. But you can’t change the facts, and you can’t change the law. And no amount of yelling and screaming and name-calling and anger and emotionalism is going to help. Quite the contrary, it’s only going to hurt by exposing the weakness of your position. That’s why you should not only follow the lead of the Third Circuit but should go a step farther. And that’s because their recent ruling was a good start but justice demands a great finish. Although it’s been 29 years that Mumia’s been on death row, justice delayed is not always justice denied.