By JEFF MACKLER
The sensational news on April 17 that Philadelphia District Attorney Larry Krasner withdrew his appeal of Superior Court Judge Leon Tucker’s granting of new appeal rights to Mumia Abu-Jamal represents a major breakthrough in Mumia’s 37-year freedom struggle. Krasner’s decision opens the door wide to re-building a broad and decisive movement in the U.S. and internationally to win a demand that has reverberated across the world, “Free Mumia Abu-Jamal!”
Krasner’s statement to the media is below. Despite its limitations in not applying the core decision inherent in Judge Tucker’s ruling to the myriad of other similarly situated victims of the criminal injustice system, the simple fact that Mumia’s appeal rights have been reinstated can only aid the fight for others in the future. Judge Tucker affirmed and definitively reaffirmed—and Krasner was forced to agree—that “judicial bias” and an “absence of impartiality” were central to key decisions that denied Mumia his basic constitutional rights. These are the precise arguments that our Mobilization to Free Mumia Abu-Jamal in Northern California and the broad national movement for Mumia’s freedom have pressed forward since our formation nearly three decades ago.
Tucker’s sharp rebuttal to Krasner’s original rejection of his ruling, a rebuttal that he was not legally obligated to undertake, shattered Krasner’s argument in his original March 26 decision to appeal Tucker’s ruling. Tucker demonstrated that former Philadelphia District Attorney Ronald Castille, who subsequently became a Pennsylvania Supreme Court judge and refused to recuse himself from adjudicating Mumia’s case, gave the appearance of bias not only because of his prior role as District Attorney but also because the “appearance of impartiality” must be present.
Castille’s pro-death penalty statements, his ties to the Fraternal Order of Police (FOP), and his lobbying for speedy death penalties in capital cases involving the murder of police officers, when Mumia was among his chief targets, all combined to reveal his bias. Hence, Tucker ruled that [Mumia’s] “appeal has established by a preponderance of the new evidence that … there was an unconstitutional potential for bias.” Mumia’s claims, he ruled, “should be reviewed in the interest of justice.”
Now that Tucker’s decision has been accepted by the DA’s office, Mumia’s legal team, led by Judith Ritter, will prepare to review and re-open the previously rejected appeals filed before the Pennsylvania Supreme Court between 1995 and 2012. Ritter is Professor of Law and Director of the Criminal Defense Clinic at Delaware Law School, Widener University, in Wilmington, Del. The appeals are expected to be presented to this court in a timely manner.
Among the constitutional violations that Ritter and Mumia’s associated attorneys will likely argue, and Krasner as District Attorney will oppose, include racial bias in jury to such an extent that it produced an inherently biased jury and therefore an unfair trial (the Batson claim); ineffective assistance of counsel; witness intimidation; falsification of evidence, and exclusion of evidence of innocence.
Additional issues that become part of Mumia’s appeal include a spuriously alleged Mumia hospital murder confession presented by two police officers some three months after they allegedly heard it, phony ballistics evidence, lying and disappeared witnesses, failure to conduct gun power residue tests, cat-scan tests on the trajectory of the bullets fired into Mumia’s body that demonstrated police lies on the murder scene, and a mountain of other material pointing to Mumia’s innocence that has previously been rejected for appeal consideration.
One startling and significant aspect of Mumia’s appeal will be the racist bias in the conduct of Judge Albert “the hanging judge” Sabo, who presided over both the 1982 trial plus the post-conviction review hearings in 1995-1996. An award-winning court stenographer, Terri Maurer Carter, testified that she heard Sabo, a member of the Fraternal Order of Police, say in his court anteroom chambers prior to entering the court to judge Mumia, “Yeah, and I’m going to help ’em fry the n—-r.” The Pennsylvania chapter of the American Bar Association once observed, “No one can get a fair trial in Sabo’s court.”
If Mumia wins just one of his arguments, he will have taken a major stride toward a new trial wherein he can present the repressed evidence of his innocence and expose the police and prosecution’s systematic frame up.
Notwithstanding our utmost optimism for bringing Mumia home, we cannot refrain from expressing our all abiding concern that the exigencies, contortions, and inherent class and race bias of capitalism’s legal system will inevitably be brought to bear. A truly deep and massive movement in this case remains essential to expose the lie to Mumia’s conviction and make the political and social price of his continued frame-up incarceration by the powers that be too high to pay.
Krasner’s decision undoubtedly was influenced by our movement’s collective actions repudiating his adverse initial ruling, including his dis-invitation from a speaking engagement at Yale University Law School, where he hoped to pose as a progressive defender of human rights. No doubt Krasner has been subjected to immense pressure from the FOP and other such organizations and political figures that have long sought Mumia’s execution. His decision has the effect of eliminating years of legal challenges through the various court bodies just to secure the right that Judge Tucker initially granted.
Judge Tucker’s decision and Krasner’s appeal withdrawal represent an historic win for Mumia that will redound across the globe. As always, any legal victory in the racist criminal justice system is never secure unless the full weight of a fighting massive, united, and dedicated social struggle takes the lead in winning new and ever broadening forces.
Mumia Abu-Jamal is an innocent, framed political prisoner, whose freedom struggle has taught a new generation that the U.S. presides over a racist, classist mass incarceration, school to prison scenario social system that imprisons the largest number and percentage of its population than any other nation on earth. A victory for Mumia—that is, winning his freedom and bringing him home—will represent a victory for all humanity.
Statement of Philadelphia District Attorney Larry Krasner, withdrawing his appeal in Mumia Abu-Jamal case
PHILADELPHIA (April 17, 2019) — Today the Philadelphia District Attorney’s Office withdrew its recent appeal of an opinion granting a re-hearing of some previously decided issues in the case of Mumia Abu-Jamal. We withdrew the appeal because the opinion we appealed has been modified consistent with our primary concern — that ruling’s effect on many other cases.
By way of background, Mumia Abu-Jamal was convicted of the murder of a young police officer, Daniel Faulkner, that occurred on December 9, 1981. Even after Maureen Faulkner, the wife of the victim, chose not to continue seeking the death penalty several years ago in hopes of closure, the case has evoked polarizing rhetoric and continues to assume a symbolic importance for many that is distinct from the factual and often technical legal issues involved in the case.
The technical issue at stake here is simply whether or not some decided issues need to be re-heard by a Pennsylvania appellate court due to one former judge’s having worn two hats — the hat of an apparently impartial appellate judge deciding Abu-Jamal’s case after he earlier wore the hat of a chief prosecutor in the same case. Although the issue is technical, it is also an important cautionary tale on the systemic problems that flow from a judge’s failing to recuse where there is an appearance of bias.
Justice Castille did not recuse himself before deciding appeals in the Abu-Jamal case and several others, including the Williams case. In the Williams case, the United States Supreme Court decided that Castille should have recused himself because of the role he took as a chief prosecutor in Mr. Williams’s matter. The U.S. Supreme Court ordered that Mr. Williams’s appeal be re-heard by the Pennsylvania appeals judges, without the taint of Castille’s participation.
A similar question of Castille’s role exists in the Abu-Jamal case. In order to help resolve it, our Office exhaustively searched hundreds of file boxes in relation to the Mumia Abu-Jamal matter, including six previously undisclosed boxes (now turned over to the defense, as required by law). While we did not find any document establishing the same level of involvement by Castille in the Abu-Jamal case as in the Williams case, we did find (and turned over) a June, 1990 letter from then-District Attorney Castille to then-Governor Robert Casey, urging that the Governor issue death warrants, especially in cases involving people who have killed police, in order to “send a clear and dramatic message to all police killers that the death penalty actually means something.” Although the letter does not mention Mr. Abu-Jamal or his case by name, at the time Justice Castille wrote to Governor Casey, there were only three cases involving people who had been convicted of killing police that were pending. One was Mr. Abu-Jamal’s.
In the end, the trial-level judge considering this issue wrote an opinion that agreed with us that these indications of strong feelings on the part of Justice Castille did not rise to the level of the direct and active involvement Justice Castille took in the Williams case but went further, deciding there should be a re-hearing of Abu-Jamal’s decided issues anyway, based on more general principles of judges needing to recuse to avoid the appearance of bias.
We appealed, making it extremely clear in our court papers that our primary concern was with the overly broad language of the opinion and its potentially devastating effect on hundreds of long settled cases, decades after their cases were resolved, including its hurtful effect on victims and survivors. We highlighted our concern with the overly broad language of that opinion in five specific respects and specifically noted that we would re-consider appealing if the trial-level court issued another decision addressing the concerns we raised.
Although the judge was not required to do so, on March 27 he issued another decision that addressed the concerns we raised. The judge made clear that his opinion should not be read to mean that several hundreds of cases were disturbed — -it should be applied only to people convicted of killing police officers whose cases were in the District Attorney’s Office while Castille was District Attorney (the category of cases Castille highlighted in his June 1990 letter to Casey). Given that the trial-level court has now addressed the concerns that led us to appeal in the first place, we have withdrawn the appeal.
Our decision to withdraw the appeal does not mean Mr. Abu-Jamal will be freed or get a new trial. It means that he will have the appeals that Justice Castille participated in deciding reconsidered by a new group of appellate court judges, untainted by former Chief Justice Castille participating in their decision. The trial-level judge has ordered the Philadelphia District Attorney’s Office and the defense to re-submit the legal briefs done in the past (which were written under prior administrations), effectively setting the clock back to where it was in the past.
The result will be that long-settled convictions in other cases will not be disturbed and that decisions made by the Pennsylvania Supreme Court on the legal issues raised decades ago in the Abu-Jamal matter will no longer be tainted by the appearance of bias.