April 10, 2014 by Robert Zaller
It’s been nearly 32 years since a 28-year-old taxicab driver was convicted of the murder of a Philadelphia police officer and sentenced to death. It might seem improbable to the point of impossibility that this case should have overturned the nomination of a highly regarded and apparently well-qualified nominee, Debo Adegbile, to head the Civil Rights Division of the Justice Department. Yet that’s exactly what happened when the U.S. Senate rejected Adegbile March 5 by a vote of 52-47 in what Iowa Sen. Tom Harkin called “the lowest point that I think this Senate has descended into [sic] in my 30 years here.”
The cabdriver in question was a sometime journalist and political activist named Mumia Abu-Jamal, a former Black Panther who had been publicly threatened by Frank Rizzo — more or less the equivalent of a Mafioso’s kiss of death. On the night of Dec. 9, 1981, Mumia’s brother, Billy Cook, who has said he was riding with his business partner, Kenneth Freeman, was stopped by Officer Daniel Faulkner. Mumia happened on the scene at that moment in his cab, and — by some accounts — saw his brother being roughed up. He left the cab with the gun he legally carried. An altercation followed, during which Mumia was shot in the chest and Faulkner killed.
Prosecutor Joseph McGill argued at Mumia’s trial that, despite his wound, he had executed Faulkner at point-blank range as he lay on the ground. Freeman was not mentioned during the trial, but a driver’s license application in Freeman’s name was found in Faulkner’s pocket. Freeman was arrested hours later, but almost immediately released. The vending stand that he and Cook operated mysteriously burned to the ground five days later, and Freeman himself was found dead, bound and naked, on the night of the MOVE bombing, May 13, 1985. The cause of his death was listed as a heart attack. It was never investigated further.
In the words of J. Patrick O’Connor, Mumia’s trial represented “a monumental miscarriage of justice from beginning to end.” Inspector Alfonzo Giordano, who took charge of the crime scene, is said to have coerced two witnesses, a prostitute and a cab driver on probation for throwing a Molotov cocktail into a schoolyard, into giving perjured testimony against Mumia. He allegedly beat the wounded Mumia in the paddy wagon and falsely asserted that he had boasted of killing Faulkner to him. Giordano would later be convicted in an FBI corruption probe of the Philadelphia Police Department, as would Deputy Commissioner James Martin, who oversaw Mumia’s case.
After disruptions, Mumia was gagged at his trial on the order of presiding Judge Albert Sabo and denied the right to represent himself as well as his choice of counsel, John Africa who was not a lawyer. Sabo allegedly later boasted that he intended to help the prosecution “fry the nigger.” Prosecutor McGill used 11 of 12 challenges to exclude African Americans from the jury, which as an intentional practice was ruled unconstitutional by the U.S. Supreme Court in Batson v. Kentucky four years later. Although the court’s ruling was retroactive, it was not applied to Mumia’s case.
As outrageous as the trial was, the long record of Mumia’s appeals is even worse. The Pennsylvania Supreme Court ruled that McGill’s jury summation against another defendant, Lawrence Baker, had violated the law, but refused to apply the almost identical words used by McGill in Mumia’s case, thus negating its own precedent. Mumia’s post-conviction review in 1995 was conducted by Sabo, who thus judged his own conduct. The Third Circuit Court of Appeals reversed its rulings in two previous cases, Holloway v. Horn and Brinson v. Vaughn, to deny Mumia relief under Batson v. Kentucky in 2008, and the U.S. Supreme Court refused to grant certiorari to rehear his petition despite the flouting of its own clear rule. Thus, from the state to the highest federal level, successive courts denied Mumia relief according to their own established precedents, a practice that became known in legal circles as “the Mumia exception.” This did not simply violate Mumia’s rights. It undermined the fundamental principle of stare decisis, by which courts, absent extraordinary circumstances, are bound to honor established precedent lest the law have no certainty. The only extraordinary circumstance in Mumia’s case was Mumia himself.
Over the years, Mumia has attracted support from organizations ranging from Amnesty International to the National Association for the Advancement of Colored People. Adegbile oversaw the NAACP Legal Defense Fund in its work assisting Mumia’s Third Circuit appeal. The fund is legendary for its advocacy on behalf of minorities and the poor in capital and civil rights cases. Adegbile’s work was professionally honorable and appropriate. But he incurred the wrath of Philadelphia’s Fraternal Order of Police and the politicians who dance to its tune, notably Republican Sen. Pat Toomey. Toomey waged a one-man campaign to discredit Adegbile on the basis of his representation of Mumia. It was, he said in a Philadelphia Inquirer op-ed replete with falsehoods, an “affront [that] cannot stand.”
The affront, of course, is to the rule of law, which in Mumia’s case has been violated by all three branches of government: by the courts, in their violation of basic legal principles; by the executive, in the person of former Pennsylvania Gov. Tom Ridge, who signed a death warrant for Mumia just as his post-conviction review was being submitted (the death warrant was stayed pending the review); and now by the U.S. Senate, which has stated, in effect, that a lawyer should be judged by the popularity of his client — or, rather, by the political weight of his foes. As for Philadelphia’s police department, it’s once again in the news, this time as the object of a wide-ranging investigation of the narcotics division. You begin to get the idea of why Justice is so often depicted as blind. In the City of Brotherly Love, it’s too painful for her to look.