Making sense of the Mumia Abu-Jamal decision

A federal judge frees the convicted cop killer from death row, but makes it less likely he'll get to argue his innocence at a new trial.

Published December 20, 2001 1:12AM (EST)

Mumia Abu-Jamal, arguably the world's best-known death-row inmate, has been saved from the gallows, but not from a life in prison.

After mulling the habeas corpus appeal of the incarcerated journalist and former Black Panther for over two years, U.S. District Judge William Yohn on Monday issued a carefully worded decision overturning the penalty-phase verdict of the jury that sentenced Abu-Jamal to death in July 1982 for the slaying of Daniel Faulkner, a white, 25-year-old Philadelphia police officer.

Yohn overturned the death verdict on the narrow grounds that the jury had been wrongly instructed about the rules of mitigating circumstances that might apply to Abu-Jamal. Specifically, he agreed with Abu-Jamal's claim that the jurors had been led to believe, incorrectly, that any finding of mitigating circumstances on his behalf would have to be agreed to unanimously by the panel. In fact, since 1988, the U.S. Supreme Court has held that if even one juror on a panel finds a mitigating circumstance in a defendant's favor, that must be weighed in the jury's decision on whether to vote for death.

But in issuing his decision, Yohn also denied all Abu-Jamal's arguments for overturning his first-degree murder conviction. The ruling, which can be appealed by both Abu-Jamal and the Philadelphia district attorney's office, makes it unlikely that Abu-Jamal will ever again face a death sentence, but also makes it much more difficult for him to challenge his first-degree murder conviction.

Lawyers in Philadelphia say that with better legal representation than he had at his original trial, Abu-Jamal -- who had no criminal record at the time of his arrest on Dec. 9, 1981, had a solid history as a journalist and political activist in Philadelphia, and who has been a model prisoner during nearly 20 years on Pennsylvania's death row -- would be unlikely to be resentenced to death for the shooting of Faulkner. At his original trial, his lawyer, Anthony Jackson, didn't put a single character witness on the stand to argue against a death verdict. That error would not be repeated.

But absent new evidence of innocence or legal error, Yohn's denial of all constitutional claims about the original trial's guilt phase means that, unless the ruling is overturned by a higher court, it would be next to impossible for Abu-Jamal to further challenge his conviction. Convicts are permitted only one federal habeas appeal.

The one remaining avenue left for Abu-Jamal to pursue his claim of innocence would be if a judge in any new penalty-phase hearing permitted him to introduce new witnesses or evidence aimed at mitigating the charge, or raising doubts in the minds of jurors about his guilt -- what is known legally as "residual doubt." While such new evidence, if permitted by the judge, would not automatically lead to a new trial on the underlying conviction, it could, if convincing enough, set in motion a political demand for a new trial that would be hard for any judge to resist.

"What Dan and I were seeking was a new trial," says Abu-Jamal's former lead appellate attorney Leonard Weinglass, referring to his associate, Daniel Williams. Both men were fired by Abu-Jamal last spring, after Williams published a book that discussed the history and some of the disputes within the defense team. "What Mumia was seeking was a dismissal of the charges. What he has gotten is the most minimal relief possible: a new jury to decide whether or not he should face the death penalty again."

Williams, an expert in death-penalty law, was a little more enthusiastic about Yohn's ruling. "This is a tremendous result for Mumia, for although he has been fighting for his freedom, getting off of death row and moving into the general prison population is a drastic improvement in the circumstances of his confinement."

Abu-Jamal's more ardent supporters were less positive in their assessment of the ruling. "This is the next to worst outcome that could have happened," said one activist, who asked not to be identified. Efforts to reach Abu-Jamal's new attorneys, Eliot Grossman and Marlene Kamish, were unsuccessful.

Hugh Burns, the assistant district attorney handling the case for the prosecution, said his office intends to appeal Yohn's decision. Abu-Jamal missed his chance to appeal on the jury instruction error, Burns will argue, because it wasn't raised until 1995 when his new lawyers, Weinglass and Williams, introduced it. Burns said that the decision by Yohn had split the difference between the two sides. "It's not going to make anyone happy," he said.

The Yohn decision comes after a major demonstration in Philadelphia Dec. 8 at which a number of pro-Abu-Jamal demonstrators were pummeled by police. At least eight people were arrested following the melee, with bail set in some cases as high as $80,000. Several were hospitalized.

It also comes at a time of considerable turmoil within the movement to free Abu-Jamal.

Last spring, Abu-Jamal fired his legal team, charging that they had betrayed him by publishing a book about his case. He hired his new legal team, and at the same time attempted to reopen his habeas appeal -- the one that Yohn was considering -- in order to introduce a new witness, Arnold Beverly, who claimed that he, and not Abu-Jamal, had actually slain Faulkner.

Beverly, in an affidavit filed with the court, claims that he had been hired by mobsters on behalf of corrupt police officers who wanted Faulkner executed because he threatened to expose them to federal investigators who at the time were looking into corruption in Philadelphia's Center City police district.

The district attorney's office had opposed introduction of the Beverly evidence, claiming that it had been known to Abu-Jamal as early as 1999, and had been rejected by him as not credible at that time. In fact, in 1999, Abu-Jamal had apparently been presented with a stark choice: If he wanted to rely on Beverly's testimony in his appeal of his conviction, Weinglass and Williams, his lead attorneys who felt Beverly was not credible, said they would quit the case. But if he did not go with Beverly, his other two attorneys, Rachel Wolkenstein and Jon Piper, both activist attorneys with the Spartacist League-affiliated Partisan Defense Committee, and longtime supporters of his cause, would resign from the case. He chose at that time to stick with Weinglass and Williams, and to ignore Beverly's claim. Wolkenstein and Piper quit the case.

Earlier this year, however, Abu-Jamal abruptly changed his mind. He hired new lawyers and began arguing that he had been misled and misinformed by Weinglass and Williams. He accused them, through his new attorneys, of having been more concerned with making money off of Williams' book than with winning his case, or of having been afraid of death threats from corrupt police or of those connected with the alleged hit on Faulkner, and of thus having been unwilling to present Beverly's testimony. The attacks on Weinglass, a prominent leftist advocate who had defended Angela Davis and taken on other major national political cases, angered many of Abu-Jamal's supporters.

A state judge only weeks ago rejected Abu-Jamal's claims of ineffectiveness and corruption on the part of his former attorneys, and declined, as did District Judge Yohn, to authorize a hearing on Beverly's confession to the murder.

Ironically, it was the habeas corpus appeal written and filed by Weinglass and Williams that led to a lifting of Abu-Jamal's death sentence. "This should put to rest the scandalous claims about my and Len's representation of Mumia," said Williams.

Maybe, but it is unlikely to end the two-decades-old struggle of Abu-Jamal to prove his innocence. Indeed, if he is removed from the near-total isolation of the super-max death row prison where he has spent over half his adult life -- as may happen soon now that his death penalty has been voided -- the prolific writer and activist will be much freer to advocate his case than he has been since the day he was arrested.

By David Lindorff

Philadelphia-based journalist Dave Lindorff writes regularly for Salon.

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