By Dave Lindorff
In a surprise order signed Dec. 27, a Philadelphia Common Pleas supervising judge has offered a new chance for Mumia Abu-Jamal to challenge his 1982 conviction for the murder of white Philadelphia police officer Daniel Faulkner.
Specifically, Judge Leon Tucker has ordered the Pennsylvania Supreme Court to reconsider four Post Conviction Relief Act (PCRA) hearings and petitions for hearings in the Abu-Jamal case that the state's high court had rejected over the years.
The world-famous prisoner, journalist and political activist Abu-Jamal, better known to both his supporters and his enemies as Mumia, has spent 37 years in jail, most of that time in solitary confinement and on death row. His death sentence was initially vacated on constitutional grounds by Federal District Court Judge William Yohn in December, 2001 but at the insistence of the Philadelphia DA's office, he remained held on death row until that office's appeals were exhausted a decade later by the decision of an appellate court.
Barring a pardon, which in Pennsylvania is not remotely likely, particularly in this politically fraught case, the only way for Abu-Jamal to get out of prison at this point is for him to have his conviction overturned and a new trial ordered. This is what PCRA hearings seek to do by presenting new evidence of innocence or by challenging trial errors, witness recantations or prosecutorial misconduct in the original trial.
After two years of a bitterly contested hearing, Judge Tucker ruled that the four PCRAs in question had all been improperly rejected by a state Supreme Court that since 1994 included, and that between 2008 and 2014 was headed by Justice Ronald Castille. Castille from 1986 to 1991 had been Philadelphia's district attorney, a position that had him overseeing the Commonwealth's legal response to the appeal efforts of Abu-Jamal, unarguably the politically hottest case facing the DA's appellate legal team. Judge Tucker ruled that because of those years as DA, Justice Castille should have recused himself from considering those PCRA requests. Because he refused to do so - joining the court majority in rejecting all four of the requests including three that never even got a hearing or heard witness testimony -now the defense gets to resubmit them all to a high court that no longer includes the ethically challenged Castille.
As Tucker wrote in his 37-page decision signed on Dec. 27:
""the claim of bias, prejudice, and the refusal of former Justice Castille to recuse himself from Petitioner's PCRA appeals is worthy of consideration as true justice must be completely just without even a hint of partiality, lack of integrity or impropriety. Regardless of the underlying guilty verdict of the first degree murder charge, and regardless if the tribunal was trial or appellate, Petitioner is entitled to an unbiased tribunal, without even the appearance of impropriety."
Judge Tucker, in his order, was particularly critical of several memos by then-DA Castille that an intense search by current DA Larry Krasner concluded were mysteriously missing from the Abu-Jamal case file in the DA's office. The existence of those memos is proven because memos referring to them were found in the DA's files.
Judge Tucker wrote:
"This court finds that the Commonwealth had a duty to preserve the memo by Mr. Castille to Ms. Barthold. The Commonwealth argues that there was no duty to preserve the memo. However, the Commonwealth has been involved in post-conviction death penalty case litigation regarding his particular case since 1983. Therefore, the Commonwealth knew or should have known that litigation in this death ase matter was likely and preservation of all documents relating to this case should be preserved. It is ironic that the Commonwealth accepts no responsibility for the preservation of the memo request from Mr. Castille yet has been able to retain the responsive document from Ms. Barthold that the memo request from Mr. Castille was attached to. Likewise, this court finds that it was foreseeable that the misplacement of the death penalty case documents could be prejudicial to the Petitioner."
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