“This must be what it feels like to have a judge deciding my criminal case who hasn’t been paid for by the Fraternal Order of Police (FOP).” – Mumia Abu-Jamal, December 31, 2018
January 2, 2019— I visited Mumia Monday afternoon (December 31) to discuss this incredible legal win— new rights to appeal— which is a huge and critical step on the path to his freedom after 37 years imprisonment, almost thirty in solitary confinement on death row. I also wanted to make sure he had a copy of Judge Leon Tucker’s 37-page decision to read.
Mumia first heard news of the decision on radio, reporting his petition was “denied in part, won in part.” After speaking with Wadiya (Mumia’s wife), he called and was surprised when I read him Judge Tucker’s order that he won new appeal rights! That Judge Tucker denied the Williams argument does not impact the decision and court order granting Mumia the right to re-appeal all the prior post-conviction issues that were denied by Justice Ronald Castille and rest of the PA Supreme Court from 1998-2012.
Mumia’s lawyer Sam Spital (NAACP Legal Defense Fund) arranged a call with Mumia about the ruling, but Mumia hadn’t yet received a copy of the decision, which was filed last Thursday, December 27.
Mumia asked what I thought about the decision, which I told him I had described in interviews as a “victory” and his first win, ever, in the PA courts, and opens the door to him walking out of prison. It was unusual for me to be so exuberant from me about a court decision in his case.
Mumia repeated the response he had given to Prison Radio when asked for his reaction to the decision:
“It reminds me of when Nixon went to China, and a US diplomat asked China’s #2, Chou En-Lai what he thought about the French Revolution. He replied, ‘It’s too soon to tell’.”
Mumia’s guarded response is rooted in the history of his case: Innocent and charged with a murder the cops knew he didn’t commit. A trial before the notorious Judge Albert Sabo, “king of death row,” and denied the most fundamental rights of due process at trial, couldn’t get the attorney of his choice, couldn’t represent himself, African-Americans excluded from the jury, lying witnesses, phony ballistics and manufactured confession. During the almost 20 years of post-conviction evidentiary hearings and four rounds of legal claims to overturn his frame-up conviction the PA Supreme Court denied his appeals presenting the evidence of prosecution, police and judicial bias, misconduct and corruption that should have led to dismissal of the charges against him, or at least a new trial.
Mumia is hopeful as well as guarded: He had me take down his specific words: “This must be what it feels like to have a judge deciding my criminal case who hasn’t been paid for by the Fraternal Order of Police (FOP).”
There will be no “victory” until Mumia is free. With this court order that Mumia can re-appeal his post-conviction we have the legal opening. This decision has electrified Mumia’s supporters and broke through a national blackout on the case, except for the contrived outbursts of Maureen Faulkner in the courtroom and her claims of victimization.
Mumia asked what we knew about whether DA Larry Krasner is going to appeal. On Monday the word from Krasner’s spokesman was Judge Tucker’s decision was being reviewed. [Since then Maureen Faulkner announced that Krasner told her a decision would be “in a few days.”] Mumia repeated that Larry Krasner had made it clear he would oppose his petition for new rights to appeal when he put Ronald Castille on his post-election advisory board. This was after the U.S. Supreme Court severely criticized Castille for violating a defendant’s due process rights and judicial ethical canons in not recusing himself in Williams’ case.
An appeal of Judge Tucker’s order means years of court proceedings before getting appeals court agreement with the grant of rights for Mumia to re-appeal his conviction. Life imprisonment is slow death row. Mumia has shared with me that he told DOC officials that he had faced state execution twice in his life; but he never felt closer to death than while in general population and mistreated for his skin condition and went into diabetic shock.
Mumia strongly agrees with the immediate international mobilization to convince DA Krasner not to appeal. Mumia had heard about the demonstration in front of Krasner’s office on Friday, December 28.
Our discussion focused heavily on the import of Judge Tucker’s decision for Mumia as well as others. When Mumia’s direct appeal was denied by the PA Supreme Court in March 1989, he wrote a piece, “Law is Politics By Other Means.” So too does Judge Tucker’s decision reflect a political dynamic played out in the legal arena.
This decision is historic, for Mumia and because of the legal basis of Judge Tucker’s ruling, it helps all men and women in the vise of the U.S. criminal injustice system. Judge Tucker relies on the due process clause of United States Constitution and federal and Pennsylvania case precedent that there was unconstitutional bias in the PA Supreme Court denials of Mumia’s post-conviction claims because he was deprived of an “unbiased tribunal without even the appearance of impropriety.”
Mumia is of course, well-aware that the FOP, with Maureen Faulkner as a spearhead, is upping their virulent campaign to keep Mumia locked in prison till death. Mumia wondered if Maureen Faulkner would have had her outburst if Judge Tucker wasn’t African-American. In talking later with Pam Africa, she made the point that the heavy FOP presence, filling half the courtroom, was likely an attempt at intimidating Judge Tucker.
Judge Tucker described Mumia’s case as, “one of the most polarizing cases in Philadelphia history, the nation and perhaps worldwide.” Tucker decided Mumia’s case on the grounds that due process requires an impartial tribunal, and “recusal is warranted when ‘a significant minority of the lay community could reasonably question the court’s impartiality.’” The test is whether there is the “appearance of bias or impropriety.
“The participation of the Justice [Castille] in Petitioner’s [Mumia’s] PCRA appeals before the PA Supreme Court lends itself to the appearance of impropriety as a result of the campaign speeches [a law and order platform touting having “sent 45 people to death row”], campaign endorsement [Fraternal Order of Police], and letters urging the issuances of death warrants.” [Letter from Castille to Gov. Casey et. al]
“Recusal by Justice Castille would have been appropriate to ensure the neutrality of the judicial process.”
This decision becomes precedent for any case where a judge has publicly declared support for a “law and order” agenda, unqualified support for capital punishment, the Fraternal Order of Police, or received financial support from the FOP.
FOP influence, power and corruption permeates the entirety of Mumia’s arrest conviction, death sentence and appeal denials. Trial Judge Albert Sabo (who later oversaw Mumia’s post-conviction evidentiary hearings from 1995-1997) was publicly known as pro-prosecution, put more men on death row than any other judge in the country and a life-long member of the Philadelphia County Sheriff’s Association.
In June 1995 we made a motion to Judge Sabo to recuse himself on grounds of bias and conflict of interest, which he of course denied. In August 2001, Terri Mauer-Carter, a court stenographer came forward with the information that Judge Sabo had told another judge at the beginning of Mumia’s 1982 trial, “I’m going to help them fry the n—–r.” This bias, prejudice and conflict of interest that should have resulted in a new trial for Mumia but was denied in the appeals decided in 1998 and in 2004, with Justice Ronald Castille on the PA Supreme Court.
Judge Tucker’s decision is itself precedent in Mumia’s re-appeals to the point that Judge Sabo deprived Mumia of due process because of the “appearance of bias or impropriety by a tribunal,” at trial and during his PCRA proceedings. Even on this one issue out of a dozen or more, Mumia’s should get a new trial, if not dismissal of the charges.
Mumia is guarded while fighting: Mumia’s final words were that in every new legal action in his case—whether it be to defend Judge Tucker’s order if Krasner appeals or in Mumia’s filing of his re-newed appeals—there must be motions to recuse any judge or justice who gets financial support from the FOP on grounds of bias, the appearance of lack of impartiality. He asked me to let everyone know.
This decision opens the door to Mumia’s freedom but he won’t get through it without the outpouring of support and the mobilization internationally demanding Mumia freedom. Winning Mumia’s freedom is a victory for us all.
Mumia is Innocent and Framed! Be in Philadelphia on January 5 demanding Krasner Not Appeal Judge Tucker’s Order! Free Mumia Now!
Rachel Wolkenstein, January 2, 2019