Saturday, January 23, 2010

Cop-Killer A Step Closer To Execution?

The long-delayed execution of Mumia Abu-Jamal (nee Wesley Cook) is one small step closer to being carried out as the result of a decision of the U.S. Supreme Court. That only means that he is one small step farther from dying of old age before he receives his just punishment. Abu-Jamal's case is simply a glaring example of how insane the American appellate process has become.

On December 9, 1981, Abu-Jamal cold-bloodedly shot and killed police officer Daniel Faulkner, shooting him in the back because he objected to his brother, William Cook, receiving a traffic citation from Faulkner. The evidence and testimony were overwhelming, Abu-Jamal was wounded by a shot from the dying police officer and was captured on the scene, and a jury of twelve (including two African-Americans) took only a few hours to convict. One witness testified that at the hospital, Abu-Jamal confessed to the killing as follows: "I shot the motherf----r, and I hope the motherf----r dies." The forensic and circumstantial evidence were indisputable. Multiple experts and eyewitnesses testified to the clear fact that Abu-Jamal was the killer.

The trial and verdict took place in 1982. Since that time, Abu-Jamal has become the darling of the leftist race-baiters and the bane of the appellate courts. His attorneys have filed a series of ridiculous and often frivolous appeals, but where there's a ridiculous appeal, there's a ridiculous court. Ultimately, the Supreme Court of Pennsylvania and/or the U.S. Supreme Court have reversed every decision made by the appellate courts below. But since there is no state or federal rule requiring that all appeals of whatever nature be exhausted within a specific period of time, the defense appellate attorneys continue to file appeals based on "new facts" or new law. With the passage of lengthy periods of time, witnesses die, disappear, or have altered remembrances of the event that was so clear in their minds years and decades earlier. That creates a fertile field of appellate manipulation. Forensic evidence gets misplaced, and trial records get lost or destroyed in the moves from courtroom, to file rooms, to archives, to basements and to digital and photographic reproductions of the originals.

And so it has been for the appeals and records of Abu-Jamal. The murder and trial took place in Philadelphia, where Abu-Jamal was an original organizer of the Black Panthers during the height of their cop-killing ways. Ponder that for a moment. The Justice Department which will review the federal issues for future appeals is currently the same Justice Department which recently squelched the judgments against New Black Panther Party members for voter intimidation in that same city. Fortunately, almost all aspects of the appeals will be processed and argued by the attorneys for the State of Pennsylvania, but don't expect any help from the Holder Justice Department and its leftist political attorneys.

In the twenty-seven years since Abu-Jamal was convicted, he has become the icon for the American left and European fools. Paris renamed a street in his honor in 2007. Rallies have been held for his release in nearly every western European capital. Better to address a phony claim of racist persecution in America than to deal with your own terrorists. Hollywood is not lacking in support for this thug, led largely by one Danny Glover who recently declared that the Haitian earthquake was caused by the failure to stop global warming at the conference in Copenhagen. Joining him are various has-been actors, perpetual leftists, and former members of the M*A*S*H TV series. Naturally, the ACLU, the NAACP and various Public Defender offices (aka, counsel for the undeserving) have shouted Abu-Jamal's innocence from the rooftops.

So with all that support and free legal representation, don't expect to see the sentence carried out any time soon. This week's Supreme Court decision addressed only two facets of only one appeal that reached the top level of appellate foolishness. The federal 3rd Circuit Court of Appeals had stayed Abu-Jamal's execution based on allegedly unclear instructions to the jury concerning their ability to produce a death-penalty verdict. The previous week, the Supreme Court had reversed an identical case in Ohio, and this ruling merely affirmed the reasoning in that decision, thereby reversing the 3rd Circuit stay that ordered a new sentencing hearing for Abu-Jamal. This appeal (out of the myriad appeals filed on Abu-Jamal's behalf) addressed only the sentencing, but not the verdict or the facts. The Supreme Court merely sent the case back to the 3rd Circuit court for a ruling "consistent with this opinion." So it's not even really a complete reversal.

Says leftist lead defense counsel and appellate attorney for Abu-Jamal, Robert R. Bryan of San Francisco (where else?): "If [this case and the Ohio case] are similar, of course it didn't bode well. But they're different. It's always uphill with a death-penalty case." Indeed it is. And to make that point, the Supreme Court ordered the case back to the 3rd Circuit for a consistent opinion on the appeal, but also left wide open the possibility that the 3rd Circuit would still reverse on other defense grounds, and send it back to, guess where, the trial court. And so goes the obnoxious and deadly game of appellate ping-pong.

Bryan goes on to assure us: "His body's locked up, but his mind is free as a bird. He has a lot to draw from within that most people similarly situated don't have." True enough. Most murderers don't have access to public radio, a published book on racial prejudice in the legal system, the Hollywood goofball crowd, and millions of dollars worth of free legal counsel. And the murderer in Ohio didn't have the advantage of leftist outrage in the press and courts because that murderer was Frank Spisak, the neo-Nazi who murdered three people in 1982. White racist murderers are obviously less-justified in their murders than are black racist murderers.

Leftists are fond of quoting the legal adage that "justice delayed is justice denied." Most of us on the conservative side would agree with that. But the left is only talking about convicted criminal defendants, particularly famous defendants. But every case has two sides. What about justice for Maureen Faulkner, the police officer's still-grieving widow and their two now-adult children? And in criminal cases, individuals aren't the plaintiffs. The plaintiffs are the People of the State of Pennsylvania. When will they get their justice? If you've read this article carefully, you know the answer to that question is "not soon."

21 comments:

Tennessee Jed said...

As a Philadelphia guy for most of the years since the murder took place, I am very familiar with this case. Still, I find your post disturbing in that it seems we may never see justice and execution of this cop killer.

StanH said...

What an amazing legal journey this murdering thug is on, and I would bet in some way or another the taxpayer is footing bill?

Lawhawk! I read where Sacramento voted for universal healthcare for CA, at a cost of 200billion plus. Is this true? If so, that’ll help that deficit.

LawHawkSF said...

Tennessee: Abu-Jamal's case is only the most prominent example of this sort of distortion of justice. The lawyers are clever and determined. The courts have been complete saps. The Philadelphia local and appellate districts are loaded with opponents of the death penalty. And obviously there is a strong element of political correctness which overrides good law and common sense. The case is all too-typical in many ways. The viciousness of the killing, the clear guilt of the murderer, and the hangover from the civil rights movement gone wrong combined to produce a cesspool of bad decisions. Tragically for Faulkner's widow, their children, and the rule of law, this vile creature may die in his sleep in prison years from now.

LawHawkSF said...

StanH: There have been a multitude of these schemes proposed in California. This latest Democrat plan is just one of them. The socialized medicine, single-payer advocates in Sacramento are even more tone-deaf than those in DC. This bill, proposed by the noxious former Supervisor from San Francisco and now State Senator Mark Leno, has been hanging around since early last year. Leno finally introduced it into the state upper house on January 20th in direct reaction to the death of his pal Pelosi's national health care plans.

Two prior attempts to impose single-payer narrowly passed the legislature, only to be vetoed by the Governator. Those bills were equally crazy and less expensive than Mark Leno Quixote's current one. This is nothing more or less than the howling of a spoiled brat leftist Democrat reacting to the debacle in DC. In addition, the tone-deaf crypto-Marxist introduced the measure right after Brown was declared the Senate victor in Massachusetts. He doesn't see that the Republicans will have a field day with it. California is less blue than Massachusetts and there's rebellion in the air.

California already has a patchwork of state controlled health care schemes which is outrageously costly, inefficient and unsuccessful. San Francisco imposed mandatory health care on all employers three years ago along with city-paid care for those who aren't employed (which is a lot of people now). Leno's plan to make a horrible situation worse has a polar bear's chance in the Sahara of passing, or surviving a veto.

AndrewPrice said...

This system definitely needs to be reformed. On the one hand, it's far too hard to win on appeal when there are real problems or true new evidence. But on the other, the system lets the guilties abuse the system so thoroughly that justice can never be carried out and that the entire system appears to become a mockery of itself.

LawHawkSF said...

Andrew: That's a pretty good summary. My experience was that the clearer my client's appeal, and the clearer the law on the matter, the less likely it was that the appeal would succeed. With criminal appeals, all I had to do was throw enough legal mud against the wall, and some of it would stick. When that mud dried up, all I had to do was find some more mud. It was so bad, that the routine pretrial denial of a California Penal Code 1538.5/995 motion (sufficiency of the evidence, lawfulness of the search and seizure, and lawfulness of the arrest and detention) was always a fertile ground for appeal even though the denial of the pretrial motion was completely sensible and valid.

StanH said...

Who pays for all of these appeals, ACLU, charity, Taxpayer? If I had my druthers this creep would have been vaporized the day after his conviction, but is the appeal just to get him off of death row or released?

Writer X said...

Everything about this case is disgusting. The supporters of this murderer are the types who live for these sorts of bumper-sticker "causes." If only it had been Danny Glover's brother who had been shot by Cook. Then it would be remarkable to see how his tune would change. Hypocrites, all of them. As if the murder of a police officer who writes someone a traffic ticket is somehow justifiable.

LawHawkSF said...

StanH: The answer to your question is "the usual suspects." The ACLU has contributed its nefarious assistance. The NAACP has provided funds. The Hollywood Left has raised buckets of cash for him. When the Public Defender was on the case originally, the People of the State of Pennsylvania paid for it. Currently the private attorney from San Francisco is being well-paid by the pro-murderer crowd.

LawHawkSF said...

WriterX: The people who support this scumbag are the same ones who wear Che t-shirts. They're too dumb to understand what the case entails, but they know there's something innately anti-American and un-American about it, so they blindly follow the cause.

Danny Glover can blame the Haitian earthquake on the failure of the Copenhagen climate summit, so blaming white racism for Abu-Jamal's noble act is easy. Glover is a San Francisco resident (he grew up in the same neighborhood as O J Simpson). He owns commercial property near my place, and his residential hotel was once my polling place. There were socialist candidate signs well inside the forbidden perimeter, and the American flag was hanging askew held on a stucco wall with masking tape. When I got done voting, I went home, called the Registrar and Director of Elections and demanded they remove the signs and hang the flag respectfully. Amazingly, they did. Glover is almost as scummy as Abu-Jamal, and half as intelligent.

BevfromNYC said...

All that money spent and wasted, not to defend his innocence, but to defend his sentence. Okay, give him life without parole and put him in the same cellblock with the skinheads and white supremicists...

LawHawkSF said...

Bev: The defenders of the clearly-guilty are not going to be satisfied with a life without parole sentence. They sense victory. The beleaguered District Attorneys and State's Attorneys are being whittled down to helplessness. The Supreme Court struck down the erroneous ruling on sentencing, but sent it back with the possibility of further proceedings, including, God help us all, a new trial. That would set the bastard free if it ever happened. Given the passage of time, the loss of witnesses or changes in their testimony, stale evidence and rules of evidence that are even more restrictive than they were at the time of the original trial, the prosecutors would probably be forced to dismiss the case for inability to prove the case. That's justice?

BevfromNYC said...

See, that is what I did not understand. It isn't just about sentencing. But on the otherhand as the laws have become more restrictive, scientific techniques have become more precise and accepted in the courtroom...DNA, computer generated reenactments etc. I know, I watch too much CSI, but it is something the defense will have to consider before going for a new trial.

HamiltonsGhost said...

Lawhawk--The San Francisco lawyer seemed to go out of his way to say that the Supreme Court missed some subtle difference between the Abu-Jamal case and the Ohio case. Is that just political talk, or does he have some other reason?

LawHawkSF said...

HamiltonsGhost: He's probably setting up the next round of appeals. The Supreme Court, if it's following its own rules, can only render an opinion based on the arguments presented to them, not the ones they think should have been presented. That leaves doors wide open for the attorneys to argue the same old crap from a different angle at the lower appellate levels.

It's called "distinguishing the case." Essentially, the appellate counsel says: "The Supreme Court was right, given what was brought before them. But consider the following in distinguishing the Ohio case from the case at bar for the following reasons: . . . . " Then the appellate attorney finds some obscure factual or evidentiary matter that actually was different, and hangs his hat on that. Most of the time it's a distinction without a difference, but that doesn't stop the more sympathetic lower courts from starting the whole path to the Supreme Court all over again.

I have seen appellate opinions reversing a conviction on grounds as ridiculous as the prosecutor using the word "or" in his brief when he should have used "and," even though the exact meaning of the prosecutor's words were abundantly clear.

If you want to see how very badly an appellate court decision can be written and reasoned, just check out Sotomayor's appellate opinion in the New Jersey firefighters case. Even her comrade-at-law at the Supreme Court, Ruth Bader Ginsburg, chided Sotomayor for her sloppy work and ignorance of procedure. And that wasn't even a criminal matter.

LawHawkSF said...

Bev: The O J Simpson murder trial was a perfect example of the mis-use of DNA evidence by a clever defense team battling a pair of grandstanding amateurish prosecutors and a political-appointee judge who couldn't control his courtroom.

In the Abu-Jamal case, we have no way of knowing what evidence is still intact, and whether DNA evidence could even be extracted. But you can bet that if an appellate court sends the case back for retrial (not solely for sentencing), the defense will pull out all the stops. As one example, after changing her story about three years ago, one of the witnesses (a junkie prostitute) placed herself in a different position from the one she originally claimed. A computer-generated video of the new position would demonstrate that she couldn't have seen the murder as it was committed. A tired or inexperienced prosecutor could get sidetracked attacking the video instead of tearing up the witness's changed testimony.

The longer this appellate process goes on, the greater the chances that Abu-Jamal will walk away a free man who will instantaneously write a New York Times best-seller about how an innocent man who was the victim of white racism spent umpty-ump years in prison and was now found innocent. More likely, it will be like former NAACP president Benjamin Chaves, who announced he had been found innocent when in fact the case had been tried so many years earlier that the prosecution simply couldn't prove its case again the way it could at the time of the original trial.

LawHawkSF said...

Bev: I forgot to make it clear that in the Chaves case, the prosecution simply dismissed the case because of the near-impossibility of proving his guilt again. In that case, there were far fewer years between the original trial and the appellate opinion ordering a new trial. Imagine what difficulty a prosecutor in a potential new trial for Abu-Jamal would have after nearly three decades have passed.

BevfromNYC said...

But all along the appeals process hasn't the conviction been upheld? Is it possible that the defense will have to take that issue to the Supremes which could take another 27 years? I guess, if they have opened the door by strking down the sentence then that could muddy the conviction as well.

LawHawkSF said...

Bev: His conviction has been challenged three times at the lower appellate levels, then affirmed again at the Supreme Court twice and once at the Pennsylvania Supreme Court. It's still an open issue since all appeals on the conviction have not yet been exhausted, and the Supreme Court didn't rule on that issue this time. So, long story short, yes it could take exactly that long.

It's not a huge leap of logic for some court to conclude that if the jury didn't understand the death penalty options and the judge was wrong in his instructions, then the whole trial was "tainted," resulting in an order for a new trial on the merits. And if a jury finds him not guilty, the whole process is effectively over forever (double-jeopardy, and all that). Still, appeals on the reversal alone could take another two or three decades before it could ever get back to a trial court.

Congress needs to pass legislation limiting the number of years during which the defendant must produce all his grounds for appeal and exhaust all his remedies. With certain highly-limited exceptions (such as previously undiscovered and undiscoverable clear physical evidence of innocence), I think five years is plenty. Absolutely no new hard evidence has been presented in the Abu-Jamal case since its inception. Everything on appeal has depended on altered eyewitness testimony, constitutional challenges, and legal niceties, all of which could have been cut off twenty-two years ago (plus the time it takes for the final appeals to be heard and disposed of).

It's actually not quite that simple, of course, but it would eliminate the vast majority of frivolous appeals.

BevfromNYC said...

I understand your point about limitations, but it isn't better to err on the side of caution and put no time limit? Especially when someone's life is on the line.

LawHawkSF said...

Bev: There is an ancient legal principle that "at some time, all litigation must cease." That is the principle on which statutes of limitations are built. I believe it's a bedrock principle upon which all governments of law must rise or fall. I've always been willing to debate what that time-period should be, but rarely whether the principle itself is in question.

That said, the death penalty is another issue entirely. Unlike all other penalties which can be wholly or partially undone, this one is truly final. It's probably the best argument there is for the elimination of the death penalty, at least from the legal viewpoint as opposed to the moral or theological objections.

However, as liberal as I would make the rules on death penalty cases, at some time all litigation must cease. Given all the best evidence that the law and science could produce, fifty years ago DNA evidence wasn't even a dot on the horizon. We can't build an entire legal system around some legal or scientific event that might happen in the unforeseeable future. The death of a convicted criminal on scientific grounds that later appear to be outdated and no longer operable is comparable to the death of a soldier by friendly fire. It is a tragedy. It is to be avoided by every means presently available to us. But as long as laws and military operations are performed by human beings, such losses will happen. Our duty is to do everything humanly possible to avoid those errors.

Outside the legal arena, all that is left is the moral or theological argument, and if enough people think that it is morally or theologically wrong to execute someone because he might be proven innocent later, the law will be changed. But it doesn't change the legal principle, it only changes the law.

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