Justice Is Just an Emotional Feeling: Judge Sabo's 1995-97 Kangaroo Court

· During the same day of the 1995 PCRA hearings, August 2, Sabo blocked attorney Williams from completing his examination of a potentially important eyewitness of the events on December 9, 1981, cab driver Robert Harkins, who described the shooting of P.O. Faulkner in a way that flatly contradicted the prosecution’s eyewitness’ testimony at the 1982 trial. When Harkins, apparently under intense police/prosecution pressure in the days before his PCRA testimony, for the first time ever claimed to have seen the shooter slump down exactly where the police claimed to have found Abu-Jamal, Sabo prevented any further examination of this witness by the defense. In the meantime, this has emboldened those for whom Abu-Jamal’s guilt is an article of faith to claim Harkins as a “fifth” prosecution eyewitness, whereas in fact everything else that Harkins ever testified totally contradicts the prosecution’s story of the shooting.

· In connection with this, Sabo uttered one of the most shocking sentences during all of the PCRA hearings. When Williams insisted on questioning Harkins further “to seek justice” and “to ensure that an innocent person is not executed,” Sabo, after snappishly interrupting him with the words “How about when it [sic] is guilty,” brutally revealed the apparent guidelines of his judicial career: “Counselor, justice is an emotional feeling. That’s all it is. […] Justice is an emotional feeling. When I win my case, it’s justice. When I lose my case, I didn’t get justice, you know. So take it from there.”

· After the final arguments of both sides on September 11, 1995, it took Judge Sabo no more than four days to churn out a 154-page decision with 290 factual findings where he denied every argument made by the defense and found everything that the prosecution had said true. His clerks could hardly have written a decision of such length and detail in such a short time without the Judge already dictating what to write during the hearing itself in which he was supposed to be a neutral arbiter.

· In his decision Sabo virtually duplicated, with all factual mistakes, omissions and distortions, the representations in the prosecution’s PCRA brief about Police Officer Gary Wakshul, the officer who (assigned to guard the arrested Abu-Jamal on December 9, 1981) had expressly stated that Abu-Jamal had made “no comments” at the time, but who would 64 days later claim to have heard a murder confession by the defendant. At the 1982 trial, Sabo had blocked this very same officer from being brought to the courtroom to be questioned by the defense on this glaring contradiction.

· When Veronica Jones, an original defense witness in 1981/1982 who first had said she saw two men run away from the December 1981 crime scene but then recanted at Abu-Jamal’s 1982 trial and said she had seen nothing, told her full story how the police had coerced her into giving false testimony at the trial, Judge Sabo allowed her to be arrested on the stand on petty charges. That was quite different from the treatment of the main prosecution witness at Abu-Jamal’s 1982 trial, Cynthia White, who was brought to the trial from Massachusetts where she served time for prostitution, but was never harassed by Sabo for her outstanding cases in Philadelphia for the same “crime.”

· At Abu-Jamal’s final PCRA hearing in 1997, Pamela Jenkins, another Philadelphia prostitute in 1981, testified that like Jones, she was pressured by the police re Abu-Jamal. She said she was asked by police to testify that she saw Abu-Jamal shoot Faulkner, even though she wasn’t even at the crime scene. After she also testified that she knew how the police had coerced star prosecution witness Cynthia White into mendaciously claiming that Abu-Jamal was the shooter and that she had recently very briefly come across White in person in an attempt to get her to recant her lies, Judge Sabo allowed the prosecution to produce highly dubious documents according to which White had been “deceased” since 1992. Before the three-day 1997 hearing, the prosecution had never mentioned that “fact.” Whereas Sabo found this sudden discovery by the prosecution credible, in the year before he had mockingly dismissed the defense attorney’s claim that they couldn’t find Jones before 1996.

These few bullet points cannot claim to be an exhaustive presentation of Judge Sabo’s (mis)-behavior during Mumia Abu-Jamal’s first and only post-conviction hearings (he filed a 2nd and 3rd PCRA petition in 2001 and 2003, respectively, but didn’t get a hearing on either of them, and both were dismissed by the Pennsylvania state courts. If I have understood all the legal steps correctly, the rejection of the 3rd petition is now being appealed to the U.S. Supreme Court).

Rather than being even more detailed in describing the plight Abu-Jamal had to undergo after his 1982 trial before Judge Sabo when he met the same judge again in 1995-97, I want to turn now to something not altogether different, namely, another high profile Philadelphia criminal trial that took place roughly in the middle between these two dates, in 1988.

Here, nine persons were accused of having conspired to murder a well-known personality from South Philadelphia. The defense lawyer of the primary defendant was initially very worried about the outcome since the judge assigned to the case had a reputation as being extremely tough: a “hanging judge,” so to speak. All defendants faced the death penalty, and his client was the one whose odds were definitely the worst.

As it turned out, the defense attorney’s fears were largely unfounded. The defense was given ample time to ensure a fair jury selection process even before the process actually began, since the judge had no objection whatsoever to a questionnaire being passed out to all potential jury members, with the “completed forms … returned to the attorneys on both sides.” In his 2001 memoirs, the defense attorney mentioned above gives a colorful description of how all this “seemed to work like a charm” for the defense.

Since the judge never seemed to rush the proceedings, it took close to a month to pick “a jury of twelve and six alternates.” It appears that the defense attorney never had the slightest trouble with the trial judge and was virtually unconstrained in putting on evidence destroying the prosecution’s claims – undoubtedly helped by practically unlimited funds enabling him to do so.

When the prosecution rested its case, the trial was already in its third month. The main defendant’s lawyer was quite satisfied since the judge, “with his tough reputation, wasn’t really treating the defense all that badly,” and also “prevented the prosecutors from going to far with evidence of other crimes committed by the defendants on trial,” which, in this case, would have included “murders allegedly ordered” by the main defendant and “committed by the co-defendants.”

This courteous treatment of the defense extended to the summation, where the judge let the lead defense attorney shift his final speech for the defense from Friday to Monday to prevent the jury both from forgetting the message and from scrutinizing it to much by reviewing the transcript. By the time of the summations, the trial was in its fourth month, with no apparent attempt of the judge to hasten it or to treat the defense unfairly in any other way.

The defense counsel from whose memoirs this description and all quotes above are taken was the prominent Philadelphia mafia lawyer Robert Simone.

The main defendant in this trial, which ended in May 1988 with an acquittal of all nine defendants, was Nicodemo “Nicky” Scarfo; he and his eight co-defendants who all also belonged to the Scarfo faction of the Philadelphia mob stood accused of having organized the murder of Scarfo’s capo and chief executioner, the brutal Salvatore Testa.

The name of the judge was Albert F. Sabo.

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