Editor’s Note: Companion posts by Johanna Fernandez and Tigre Hill on Múmia Abu-Jamal are published today in conjunction with a program that will take place at the National Constitution Center on Friday, when the facility has been rented by the National Lawyers Guild. The program, organized and presented by the Guild, marks the 30th anniversary of the killing of Philadelphia police officer Daniel Faulkner and the incarceration of Abu-Jamal, who was convicted of the murder. Organizers of the event maintain Abu-Jamal’s innocence. This post first appeared on Nov. 29. On Wednesday prosecutors announced that they will no longer pursue the death penalty against Abu-Jamal, who will be re-sentenced to life in prison.
The thirtieth anniversary of Múmia Abu-Jamal’s incarceration arrives on December 9, 2011. The occasion coincides with a recent U.S Supreme Court motion that allowed to stand the decisions of four federal judges whose past rulings declare unconstitutional Abu-Jamal’s death sentence.
On December 9, at the National Constitution Center’s Grand Hall Overlook, Cornel West, among others, will offer their views on the case. They will be joined by hundreds of citizens who oppose the death penalty, decry the refusal of constitutional rights to Abu-Jamal, and insist that justice for Múmia will not be served by life imprisonment, but by freedom.
The basis of the Supreme Court’s motion is the “Mills Claim,” which rules unconstitutional improper instructions to a jury deliberating on a death sentence. In the Abu-Jamal case, the jury was misled to believe that it had to unanimously agree to consider mitigating factors against a death sentence. The fact is that any one juror may have done so and, if convinced by the merits, blocked a sentence of death. Because of improper instructions, the jury didn’t consider that Múmia was a rising journalist and dedicated father who’d recently authored and produced an award-winning radio essay on the Pope’s visit to Philadelphia. Given Abu-Jamal’s personal history, character, and career path, it was highly unlikely that he was guilty of premeditated murder.
In light of these constitutional violations, the federal courts now mandate that Múmia be granted a new sentencing-phase trial or have his sentence changed to life without parole. Recent discussions in Philadelphia’s mainstream media, all of which have emphasized the enormous costs of a new trial to the financially strapped city, suggest that the DA is likely to choose the latter.
Despite widespread evidence of prosecutorial and judicial misconduct during the conviction-phase of the trial, the federal courts have only granted Múmia relief on the constitutionality of his sentence. But if the courts have found violations during the trial’s sentencing-phase, shouldn’t these findings call into question the fairness of the trial from the beginning, especially given that both trial phases were presided over by the same judge, the same DA, and the same jury?
At least one federal judge, Thomas Ambro of the Third Circuit Court, has declared unconstitutional the manner in which Abu-Jamal’s original conviction was obtained. In 2007, Judge Ambro wrote a dissenting opinion upholding Abu-Jamal’s attorneys’ claims that the prosecution’s elimination of 11 out of 15 potential African Americans from the jury was overwhelming in its racial bias. Acknowledging the unequal application of the law in the Abu-Jamal case, Judge Ambro wrote that the court’s decision to deny Abu-Jamal the famous “Batson” claim of discrimination in jury selection “goes against the grain of our prior actions.” In previous cases with exactly the same claims, the court had granted relief to the defendants, but this time it ruled against Múmia in a two to one decision that overturned the court’s own precedents.
What Múmia’s jury could not have known prior to its conviction verdict was that within days of the trial’s end, 15 of the 35 police officers who’d collected evidence at the crime scene of Officer Daniel Faulkner’s shooting would be convicted and jailed on charges that included graft, corruption, and tampering with evidence. Among these officers was Alfonzo Giordano, who led the crime scene investigation.
The Polakoff photographs, discovered in 2006, demonstrate the illegal methods employed by the police in the Abu-Jamal case. Pedro Polakoff was a freelance photographer and one of the first persons at the crime scene. In Polakoff’s photos, Officer James Forbes, who testified that he properly handled the two guns allegedly retrieved at the crime scene, is seen holding the weapons with bare hands. The photos also discredit cabdriver Robert Chobert as a witness; his taxi, contrary to his testimony, is pictured facing away from the fallen officer’s car. This evidence hasn’t been reviewed by any court.
Of all the compelling evidence of innocence in this case, the most important and least known is the existence of a fourth person at the crime scene, a man named Kenneth Freeman. In his excellent book, The Framing of Múmia Abu-Jamal, Patrick O’Connor argues that Freeman, not Abu-Jamal, killed Officer Faulkner. Within hours of the shooting, a driver’s license application found in Officer Faulkner’s shirt pocket led the police to Freeman, who was identified as the shooter in a line-up. Yet Freeman’s presence at the scene was concealed, first by Inspector Giordano and later, at trial, by Prosecutor Joe McGill.
We’re sobered by the realization that for thirty years an international movement kept Abu-Jamal alive long enough for the appeals process to run its course. But what if the movement hadn’t kept him alive? This latest development is another in a long line of cautionary tales about the death penalty. Its finality (not to mention the barbarism of its administration and the torture of awaiting certain death) is part of what makes it unconstitutional under the Eighth Amendment’s protection against cruel and unusual punishment.
For thirty years Abu-Jamal has been forced to withstand tortured isolation in a windowless cell the size of a small bathroom. For thirty years he has not touched his children, wife, family, or friends.
A petition: Because for thirty years he has been subjected, unconstitutionally, to unbearably inhumane conditions, because he is innocent of the crime for which he is charged, and because he has been denied a fair trial, Múmia Abu-Jamal should be immediately released from prison and awarded restitution for time served.
I believe that history will prove that Múmia is innocent and that our quest for his release marks one of the most moral political assignments of our time. That’s why, on December 9, we’ll gather at Philadelphia’s National Constitution Center, where, in the presence of that powerful nationwide symbol of liberty and justice, we’ll again raise our voices and say, Free Múmia!
Johanna Fernández is Assistant Professor of History at Baruch College of the City University of New York. She is the writer and producer of the documentary film, Justice on Trial: The Case of Múmia Abu-Jamal, which premiered at the National Constitution Center in September 2010.