By JEFF MACKLER
A critical ruling by Judge J. Curtis Joyner, issued in federal court on Nov. 6, may force the Pennsylvania state court to grant Mumia Abu-Jamal a hearing where evidence proving his innocence can be presented.
Mumia Abu-Jamal, an award-winning African American journalist, was charged with murdering Philadelphia police officer Daniel Faulkner on Dec. 9, 1981. Mumia was convicted in a 1982 frame-up trial and has been on Pennsylvania’s death row ever since.
This year, however, another person, Arnold Beverly, admitted that he, not Mumia, had killed Faulkner.
On Nov. 21, state court Judge Pamela Dembe released a written decision stating her intention to rule that Beverly’ confession was irrelevant.
Dembe’s ruling would deny Mumia a new state Post Conviction Relief Act (PCRA) hearing, based on her assertion that she has no “jurisdiction” over the case. The Beverly confession, according to Dembe, was submitted beyond a one-year statutory deadline for the submission of new evidence-even evidence proving Mumia’s innocence.
The defense was given 20 days to respond to Dembe’s impending decision.
Mumia’s 1982 conviction was overseen by the notorious “hanging” state court Judge Albert Sabo, who sentenced more people to death than any sitting U.S. judge.
Sabo was removed from the bench last year against his wishes. But his name came to public attention last month when U.S. District Judge J. Curtis Joyner reversed Sabo’s decision of 19 years ago that had wrongfully condemned Otis Peterkin to death.
Joyner ordered a new trial for Peterkin, stating, “In light of the instances of prosecutorial misconduct, trial counsel ineffectiveness, and trial error, we cannot now find from the evidence properly admitted of record that the jury’s findings that [Peterkin] was guilty of the robbery … and of [murder] in the course of that robbery are supported by sufficient evidence.”
Judge Joyner’s decision has a direct bearing on Mumia’s case, as it contradicts Dembe’s holding that the Peterkin case compelled her to abide by the 1995 PCRA time limit amendments of the Pennsylvania state legislature.
Joyner’s decision reversing Judge Sabo in the Peterkin case held that the issue of innocence, of a fair trial, of ineffective assistance of counsel and judicial and prosecutorial were relevant and superceded the issue of “jurisdiction.”
It remains to be seen whether Dembe, who ruled before she had learned about the federal court decision reversing Peterkin, will now grant Mumia a new PCRA, or, in the alternative, find another legal technicality to prevent the truth of Mumia’s frame-up from coming to light.
“Innocence” is no defense!
Judge Dembe’s ruling against Mumia also affirmed a July 2001 decision by Federal District Court Judge William H. Yohn, who had cited the reactionary 1993 U.S. Supreme Court Herrera decision by then Chief Justice Rehnquist.
“In criminal cases the [original state] trial is the paramount event for determining the defendant’s guilt or innocence,” said Rehnquist. “Federal courts do not sit to correct errors of fact, but to insure that individuals are not imprisoned in violation of the Constitution.”
In Dembe’s ruling, however, the facts proving Mumia’s innocence were also disregarded, this time based on supposed technical deadlines. In the courts of the rich as with all social struggles for democratic and human rights, it is an iron rule that “they have you coming and going,” unless, of course, you have a powerful mass movement to compel that justice is done.
Dembe’s rulings have revealed a deep bias against Mumia. Without a shred of proof, she asserted that Mumia must have been aware of the details of the Beverly confession earlier and that he must have made a conscious decision to reject using the Beverly confession as part of his defense.
Mumia’s attorneys demonstrated that this was not the case and that the details of the confession became known to Mumia only after the complete case records were reviewed by his new legal team.
When Mumia, for the first time, became aware of the details of this matter, he immediately, and within the statutory deadlines, filed for a new PCRA hearing. The one-year deadline begins only when the defendant becomes aware of new evidence proving his innocence.
Dembe also rejected consideration of the Beverly confession on other grounds. She wrote, “Aggrandizing themselves by confessing to participation in high profile crimes is not unusual for persons.”
This astonishing statement was employed to dismiss the Beverly confession, without any supporting evidence as to whether Beverly was actually lying. Dembe did not bother to ask why Beverly, a free man today, would confess to a crime that carries the death penalty.
The spectacle of Mumia fighting for his very life while state and federal judges seek to prevent the real killer from testifying has become the grim reality. Far from an isolated and disconnected confession, the details of the murder of Officer Faulkner sworn to by Beverly are corroborated by several eyewitnesses and substantiated by forensic evidence.
A lie detector test was administered to Beverly by the renown psychologist and criminologist, Dr. Charles Honts. Honts certified to the truth of Beverly’s confession.
Effective Death Penalty Act
Federal Judge Yohn’s outrageous decision, which proved to be the foundation of Dembe’s ruling, also cited the Clinton-signed 1996 Anti-Terrorism and Effective Death Penalty Act, wherein federal judges are required to grant a “presumption of correctness” even to “findings of fact” like Sabo’s. In Sabo’s court, critical evidence and eyewitness accounts proving Mumia’s innocence were stricken from the court record while false testimony from police-intimidated witnesses was allowed to stand.
Judge Dembe managed to once again ignore evidence proving Sabo’s bias and overt racism. She responded to the affidavit submitted by court stenographer Terri Maurer-Carter, who swore that she had overheard Sabo state in his private chambers, “I’m going to help them fry the nigger,” by ruling that even if Sabo had made the statement, it was not relevant.
To be relevant, states Dembe, it must be linked specifically to one of Judge Sabo’s many rulings against Mumia! Incredibly, Dembe believes that a judge who says that he will help the prosecution “fry” Mumia acts within the boundaries of the law.
The legal maneuvers to prevent evidence of Mumia’s innocence and frame-up coming into the courtroom have reached the point of absurdity. Judge Yohn concluded in July: “Even if Beverly’s statements [that he killed Faulkner] were found to be credible, this does not prove that the [state] government possessed and suppressed information that it struck deals with [Cynthia] White and [Robert] Chobert.”
In the absence of such evidence, says Yohn, even a credible Beverly confession that he, not Mumia, killed Faulkner, is irrelevant.
Contrary to Yohn’s conclusion, Mumia’s brief details the fundamental corruption of the testimony of the two key prosecution witnesses, White and Chobert. It demonstrates that their testimony was both changed to coincide with the state’s fabricated version of the murder and that it was the product of direct police collusion and intimidation.
In October, the defense team presented to Judges Dembe and Yohn, for the first time, additional evidence in the form of a sworn affidavit by private investigator Michael Newman that Chobert himself in 1995 had recanted his previous testimony identifying Mumia. Chobert had told Newman that he was in fact not at the scene of the murder and saw nothing!
The defense also presented evidence that the other key “eyewitness” against Mumia, Cynthia White, had identified Kenneth Freeman as the killer, not Mumia Abu-Jamal, in a 1981 police line-up. Dembe’s response, discounting the facts, was that “it is hornbook law that witnesses who recant and witnesses who mysteriously appear long after trial are regarded with suspicion by the courts.”
Dembe did not bother to refute the clear evidence presented by the defense that Chobert and White, the only eyewitnesses who claimed that Mumia was the murderer, had lied. Instead, she relied on the generalization that courts don’t readily accept recantations.
Mumia also offered expert testimony regarding police possession of blood samples at the murder scene. He demanded that these samples be subject to DNA testing to determine if they matched with the DNA of the confessed killer, Arnold Beverly, who had been wounded at the murder scene.
The defense also insisted on subjecting the bullets and revolvers found at the murder scene and in Officer Faulkner’s body, to modern testing devices. With the aid of current scientific techniques, the evidence proving Mumia’s evidence that was ignored or hidden by the police could be properly tested, the defense argued.
Dembe’s decision ignored the DNA and ballistics evidence entirely, as well as the affidavits submitted by defense experts of national renown stating that police testing had been wholly inadequate and/or prejudicial.
Yohn provided the basis for the Dembe decision when he wrote, “When all the circumstances surrounding petitioner’s Beverly claim are considered. I cannot conclude that petitioner has alleged information sufficient to establish that had the statements contained in the Beverly declaration been presented at trial, no reasonable juror would have found petitioner guilty beyond a reasonable doubt.”
An amazing assertion! The judge cannot imagine that had the real killer confessed to the jury and had the prosecution’s two key eyewitnesses stated that they had either not seen the murder or had identified a man other than Mumia as the murderer, the jury would not have found Mumia guilty!
History of a frame-up
The 275-page brief submitted to Dembe’s court documents the incredible history of Mumia’s frame-up and for the first time presents a precise scenario of the murder of Daniel Faulkner by the mob and police-assisted murder team of Arnold Beverly and Kenneth Freeman.
The brief demonstrates that Mumia was not on the scene at the time of Faulkner’s murder, that Mumia did not have a gun, and that when Mumia did arrive on the scene after Faulkner’s murder, he was shot down by a member of the Philadelphia police department who was also complicit in Faulkner’s murder.
Mumia’s legal prospects are in the grip of a legal system that has been honed by race and class prejudice to make state court convictions “effective,” that is, immune from federal review so as to result in rapid execution.
The truth of Mumia’s assertions-as well as the opening provided by the Peterkin decision-will therefore not in and of themselves prove decisive to the winning of his freedom. That job belongs to all who struggle to build a powerful social movement to challenge the robed practitioners of death in disguise as honest arbiters of truth.
The fight for Mumia’s freedom took an important step forward recently when the government of the city of Paris, France, declared Mumia an honorary citizen, an award not bestowed on a foreigner since it was received by artist Pablo Picasso decades ago. A French delegation has scheduled a visit to Mumia at his place of incarceration in western Pennsylvania.
In early December, the Philadelphia Inquirer, following a federal court’s reversal of a Pennsylvania Supreme Court decision upholding a death sentence in the Peterkin case, editorialized in favor of a moratorium on all executions.
There are a host of legal irons still in the fire. These include Mumia’s appeal of the Dembe decision to the Pennsylvania Supreme Court as well as the 29-point habeas corpus [appeal brief] that is still pending before Judge Yohn in federal court.
The latter also raises numerous constitutional violations arising from Mumia’s trial, ranging from the racist exclusion of Black jurors to the denial of his right to self-representation and to the counsel of his choice.
