Justice Denied

Kid:                Who kills Prince Humperdinck?  At the end, somebody’s gotta do it.  Is it Inigo?  Who?

Grandpa:       Nobody.  Nobody kills him.  He lives.

Kid:                You mean he wins? 

—Fred Savage as the Kid, and Peter Falk as Grandpa in The Princess Bride

The older I get, the less ardent I become in my support for the death penalty.

But this one pisses me off.

On Wednesday Philadelphia District Attorney Seth Williams announced his office was abandoning the death penalty case against former Black Panther and convicted cop-killer Mumia Abu-Jamal, after the Supreme Court declined to review a 2008 ruling from the U.S. Third Circuit Court of Appeals that Jamal’s sentencing was improper.  Although Jamal will spend life in prison, he now avoids the death penalty to which he was originally sentenced.

For those who may not be familiar, let’s review the facts as recited by the Third Circuit (taken essentially verbatim from the lower court ruling to the same effect):

“On December 9, 1981, between three thirty and four o’clock in the morning, Philadelphia Police Officer Daniel Faulkner made a traffic stop of a Volkswagen driven by William Cook, Abu-Jamal’s brother, on Locust Street between 12^th and 13^th Streets, in Philadelphia.  Officer Faulkner radioed for backup assistance, and both men exited their vehicles.  A struggle ensued, and Officer Faulkner tried to secure Cook’s hands behind his back.  At that moment, Abu-Jamal, who was in a parking lot on the opposite side of the street, ran toward Officer Faulkner and Cook.  As he approached, Abu-Jamal shot Officer Faulkner in the back.  As Officer Faulkner fell to the ground, he was able to turn and fire at Abu-Jamal, striking him in the chest.  Abu-Jamal, now standing over Officer Faulkner, fired four shots at close range.  One shot struck Officer Faulkner between the eyes and entered his brain.”

The Court went on to note that backup officers who responded within one minute of Officer Faulkner’s radio call arrived to find Jamal sitting on the curb next to the body.  Officer Faulkner’s service revolver was found with one spent casing, and the bullet that struck Jamal was ballistically matched to that gun.  A second .38 purchased by and registered to Jamal was found next to Jamal with five spent casings.  Although the bullets that killed Officer Faulkner were too mutilated for a specific match, fragments had barrel markings consistent with the make of Jamal’s gun.  Four eyewitnesses saw Jamal stand over the wounded Officer Faulkner and shoot him in the face, with three of them positively identifying Jamal as the shooter (the fourth saw the shooter from behind).  A security guard and police officer at the hospital heard Jamal say twice: “I shot the m-----f-----, and I hope the m-----f----- dies.”

Jamal was convicted by a unanimous jury in just three hours.

Over the last 30 years, Jamal has had some 17 appeals, including multiple trips to both the State and federal Supreme Courts.  Not one has upheld any complaint regarding the guilt phase of Jamal’s trial.  Yet, despite overwhelming evidence of his guilt, Jamal became the subject of a virulent protest movement that claimed Jamal was railroaded because he is black and Faulkner was white (my wife and I had the misfortune of running into a parade on his behalf in Philadelphia about 12 years ago, and its participants bore an uncanny resemblance to the aimless, unwashed, tattooed/pierced mobs now comprising the “occupy” movement; not exactly poster children for credibility).

But in 2008 the Third Circuit, relying on the Supreme Court’s decision in Mills v. Maryland, ruled that the Pennsylvania Supreme Court was “objectively unreasonable” in approving the Court’s instructions regarding Jamal’s sentencing.  Pennsylvania’s sentencing system at the time required the jury to impose the death penalty if it either (a) unanimously found at least one of a series of statutorily-defined aggravating circumstances was present, or (b) unanimously found one or more aggravating circumstances that outweighed any of a list of statutorily-defined mitigating circumstances. 

The Third Circuit overturned Jamal’s death sentence based on an argument that the proximity of the word “unanimously” to the discussion of considering mitigating factors, and the Court’s repeated emphasis on the need for unanimity, could have confused the jury into believing that it could not consider a particular mitigating circumstance unless there was unanimous agreement as to the mitigating circumstance itself.  Here’s the actual text from the relevant part of the verdict form (the Court's instructions were to the same effect), and judge for yourself whether it’s subject to any confusion:

(2) (To be used only if the aforesaid sentence is death) We, the jury, have found unanimously

            [  ] at least one aggravating circumstance and no mitigating circumstance.  The aggravating circumstance(s) is/are     .

            [X]  one or more aggravating circumstances which outweigh any mitigating circumstances.  The aggravating circumstance(s) is/are    A.

            The mitigating circumstance(s) is/are    A.

The aggravating and mitigating circumstances found by the Jamal jury (indicated by the “A”s) were that he killed a police officer acting in the line of duty, and his lack of a significant criminal record.  After the verdict the jury was polled—very common practice—and each affirmed that they were in agreement with the verdict.

I don’t see that the form is subject to much confusion, and I’m not sure I care.  The language of the form and the Court’s instructions tracked almost verbatim the Pennsylvania sentencing statute—the trial judge followed the law, as he was supposed to do.  And the unanimity requirement is included to protect the defendant!!!!  Had that language not been there, Jamal would surely have been complaining about its absence.  Furthermore, the Mills case forming the basis of the Third Circuit’s decision was decided in 1988, six years after Jamal’s sentencing trial.  In other words, Jamal’s death sentence was overturned based on jury instruction standards that did not exist at the time of his sentencing.

But here’s the thing that really gets me.  The argument is that the instruction could have confused the jury into not considering a mitigating circumstance, but nowhere in the 48 pages of the Third Circuit’s opinion (with concurrence) or the 200+ pages of the District Court’s opinion is there any suggestion of any particular additional mitigating circumstance the jury failed to consider, such as Jamal was on drugs, or Officer Faulkner was participating with Jamal in a felony.  There isn't even any indication that Jamal has offered one.  Yet although no one appears even to have argued that the jury actually missed something in Jamal’s favor, because of a dubious technical failure to comply with a Supreme Court opinion that hadn’t yet been handed down, Jamal’s sentence is overturned.

This isn’t a case of actual innocence.  Four people saw Mumia Abu-Jamal shoot Daniel Faulkner in the back, then stand over the wounded officer and shoot him in the face (meaning Jamal was almost certainly looking Officer Faulkner squarely in the eyes when he pulled the trigger).  Jamal himself proudly admitted the crime to two others.  Jamal and his gun—which contained exactly the number of spent casings as shots that hit Officer Faulkner—were found sitting next to the dying officer.  There is neither a question whether the guy did it, or whether the jury missed a mitigating factor that would somehow have outweighed these facts.  Yet despite his undeniable guilt, through a 30 year war of attrition, Jamal has finally managed to bleed the system the system dry of time, money, and patience.

25-year-old Officer Daniel Faulkner wasn’t guilty of anything.  But he didn’t get 30 extra years for endless appeals.  Nobody granted him clemency based on a technicality.

And now, apparently, he won’t get justice, either.