A Philadelphia lower state court jurist, Court of Common Pleas Judge Lucretia J. Clemons, has issued an notice that she is intending to summarily completely reject the latest and perhaps most dramatic legal challenge by Pennsylvania’s most well-known prison captive, Mumia Abu-Jamal of his 1982 conviction on a charge of murdering a white police officer.
Abu-Jamal, charged as Wesley Cook for the Dec. 9 shooting of Philadelphia police officer Daniel Faulkner, was originally sentenced to death in a trial fraught with errors, fabricated police testimony, prosecutorial misconduct and overt prosecution bias by trial judge Albert Sabo. He spent nearly three decades on Pennsylvania’s crowded death row in solitary conrfinement, including for an extra ten years after Federal District Judge William Yohn on Dec. 18, 2001 overturned that sentence as constitutionally flawed, until a corrupt former DA Seth Williams finally decided not to further seek an overturning of Yohn’s ruling and the voided death sentence was converted to life without parole
Over the torturedd and tortuous years, Abu-Jamal’s case has won global attention and condemnation with Amnesty International declaring that the trial was a legal atrocity and that he should at a minimum get a new one — a powerful critique that was ignored by the US legal system and by most US media, especially in Abu-Jamal’s hometown of Philadelphia.
Things appeared to looked up Abu-Jamal in 2017 when Philadelphia voters by a wide margin elected Larry Krasner, a fiery defense lawyer and former public defender running on a campaign to radically remake the city’s long-corrupt, overtly racist and death-penalty-obsessed District Attorney’s Office.
A week after taking office, Krasner, in a bold and controversial move, sacked 31 veteran prosecutors hired by his predecessors — about 10% of the department’s attorneys, including senior people. He also staffed up a largely ignored unit called the Conviction Review office promising to have it examine prior convictions by the DAs office to reconsider and even reverse convictions where there appeared to have been false testimony by police witnesses, withholding of exculpatory evidence by prosecutors, and other errors leading to false convictions. A number of major cases have subsequently been overturned, with the wrongly imprisoned victims either freed outright or given new trials that have resulted in not-not guilty verdicts.
Krasner, who undertook important and controversial reforms like an end to cash bail, an end to seeking the death penalty in murder cases, and an effort end testimony in cases by police officers with a record of lying or of being caught planting evidence, was brutally criticized during his first four-year term of office as a reformist DA, both in the local media, and by the city’s politically powerful branch of the Fraternal Order of Police. He was later compelled to compete in both the Democratic primary and then the general election for a second term against two of the ADAs he had earlier sacked, both of whom were well funded in their efforts by the FOP. He won re-election in both those contests by huge margins as the city’s liberal and especially its Black and Latino voters turned out in record numbers for what was an off-year election to return him to office.
But attacks on the popular reformist DA have continued, with the state’s Republican-dominated legislature now attempting to make state-wide Democratic candidates’ alleged “soft-on-crime” policies an issue in next week’s Congressional and state legislative elections, where both the governor’s office and a US Senate seat are open and up for grabs. They are doing this by focusing on the crime issue by way of a baseless and purely “Trumped-up” attempt to impeach Krasner for doing what the city’s voters wanted him to do — fix a racist and corrupt judicial system that has filled the state’s prisons (and its death row) — with minority prisoners, many serving life sentences.
Krasner, like some other reformist DA’s across the country, is clearly embattled, and perhaps that explains (but hardly justifies) why there has been a huge blind spot in his otherwise salutary effort to clean up the outrages in the administration of justice of his predecessors (the last of whom, DA Williams, ended up in prison himself for financial fraud, including of his own mother).
Despite overwhelming evidence that Mumia Abu-Jamal has never had a fair trial, that his conviction was won through judicial bias and interference, fabricated police testimony and evidence, prosecutorial misconduct and that even political interference (including by the governor’s office) has sabotaged his appeals process over the years, Krasner has never had his revamped and enlarged Conviction Review office take up this most prominent legacy case for consideration.
Instead, Krasner, amazingly, chose ADA Grady Gervino, one of those very legacy ADA’s whose tenure dates from the days when promotions of prosecutors were based upon the number of convictions won, however they were obtained, but who was not sacked, and who continues to work in the very division of the DA’s office tasked with defending against appeals by convicted prisoners, to handle the job of combatting such an effort by Mumia Abu-Jamal.
That effort, a petition for a new Post-Conviction Review of Abu-Jamal’s conviction, became a major issue when Krasner and his staff discovered, in late December 2018 while looking for a new desk for his office in a locked storeroom in the DA’s building, six large file boxes labeled “Mumia” filled with documents from the case dating back to the trial, documents that included so-called Brady materials that clearly should have been made available to the defense. These long hidden documents included such things as Prosecutor Joseph McGill’s own hand-written notes taken during death-qualifying interviews of potential jurors for the trial on which he carefully indicated the race of Black jurors he was dismissing without cause, and a note from a key prosecution witness, white taxi driver Robert Chobert, complaining that that he had never received from the DA’s office “the money owed to me.” (McGill has admitted that he may have left Chobert, before he testified, with he impression that he might provide him compensation for lost wages during the trial, though he says it was not the office’s practice to do so and had no intention of doing it.)
The boxes, which were numbered in sequence and clearly marked as having been part of a total of 31 numbered boxes of Mumia case files that were supposed have have been made available to the defense over the course of his appeal, if not during his initial trial, clearly had been deliberately stashed away by prior DAs in the office.
Several journalists, myself included, have reached out to Krasner to highlight the many ways in which this case has been corrupted by prosecution and judicial misconduct. One of these is the clear misrepresentation of Chobert to jurors as a fine upstanding (and clearly white) eye-witness with, (as prosecutor McGill put it in his trial summation to the jury) “no reason to lie.” In truth, McGill has admitted that prior to that testimony as an alleged eye-witness Chobert had privately sought help from the prosecutor in getting his drivers license restored after it had been revoked for a DUI conviction. That request, which McGill said he did not ultimately accommodate, was clear evidence that Chobert, who was driving his taxi illegally while out on bail from a five-year sentence for felony arson of a elementary school, hoped to get something from favorable prosecution testimony. McGill conceded that he did tell Chobert he would “look into it.” Nothing about that clear inducement to testify favorably was mentioned in court or to the jury considering Abu-Jamal’s fate.
Chobert in fact, has admitted to a number of people over the years that he actually was not an eye-witness to the incident that resulted in both Abu-Jamal and Officer Faulkner being shot. His post-trial claims have been that his taxi, in which he was sitting, was parked facing away from the scene of the shooting on a perpendicular street to the street of the shooting, and that he only “heard shots” but saw nothing. That would be consistent with the failure of any other witness at the trial to testify to his or any taxi being where the prosecution claimed it was, namely parked directly behind Faulkner’s squad car and a VW Beetle owned by Mumia’s brother Billy Cook in front of which the shootings happened. (A pair of police drawings based upon the statements of another alleged eye-witness to the shooting, the prostitute Cynthia White, show the squad car, the VW, and even a Ford sedan ahead of the VW, but no taxi behind the squad car. Both those drawings, one produced by Philly police detectives and the other, found in the case where the artist is not identified, but would be either White herself a police detective interrogating her, are displayed in my book on the case, Killing Time (Common Courage, 2003).
` Photos of the crime scene taken by a press photographer even before the official crime scene photographs were taken but not presented at trial, also show no taxi where Chobert, at trial in sworn but clearly perjured testimony, claimed he was parked.
Thanks to Krasner’s totally inexplicable assignment of ADA Gravino to fight Abu-Jamal’s PCRA claim, appears to have deliberately enabled a kind of “DA predecessors’ revenge,” with Gravino, in his court statements and filings, repeating to Judge Clemons the same tired falsehoods to justify blocking Abu-Jamal’s appeal that have been trotted out in the past, instead of joining the prosecution in urging a public court hearing and calling of witnesses in the issues raised by the discovery of the hidden materials.
Judge Clemons, a Black judge appointed in 2016 by Pennsylvania’s Democratic Gov. Thomas Wolf, has been incuriously accepting of ADA Gervino’s easily debunked arguments against an evidentiary hearing, and has rejected all efforts by Abu-Jamal’s attorneys to get one.
This raises suspicion about this being yet another case of the entire Judicial establishment in Philadelphia, which has stood solidly behind the conviction of Abu-Jamal and his original trial conviction since it happened over 40 years ago, again stomping on his right to obtain a fair trial.
This PCRA case was initially being being considered by another Philadelphia jurist, Common Pleas Judge Leon Tucker (the first Black jurist to hear any aspect of Abu-Jamal’s case and appeals during his long sojourn through the state and federal judicial system). Tucker had expressed obvious outrage at some of the issues raised in the PCRA, notably the claim that Abu-Jamal’s initial appeal to the state’s highest court had been tainted by the refusal of State Supreme Court Jurist Ronald Castille to recuse himself from consideration of his appeal despite Castille’s having been Philadelphia’s DA when that office was defending against it. As Tucker said in his ruling allowing that argument to be presented, a judge must avoid “even the appearance” of bias in deciding upon recusal from considering a case. Castille, Judge Tucker ruled, had not done met that standard in this instance.
But Tucker, who was serving as Supervising Judge of Philadelphia’s criminal court when he was considering Ab-Jamal’s appeal, was slickly removed by higher court managers from continuing to handle it when he was transferred last March to the position of Supervising Judge of the Commerce Court bench, and replaced as criminal court supervisor by Judge Clemons.
Clemons’ background hardly suggests any passionate commitment to uncovering injustice in the state or federal judicial system. After earning a BS in hotel and restaurant management in 1993 and an MA in diversity management in 1996 from NYU, she went on to earn a JD at Temple University in 1999. After that education and a year clerking for Federal Judge Clifford Scott Green (a Black judge and lifelong Republican) and a two-year stint as an associate with the law firm Pepper Hamilton, she moved to thePhiladelphia office of major \law firm Ballard Spahr. There she worked in that firm’s Labor & Management Division. Ballard Spahr, a national firm specializing in business law, has a notorious reputation in Philadelphia at least, and perhaps nationally, as a union-busting law firm, with a record of advising employers on how to take advantage of lax state and federal labor law enforcement and of minimal penalties for labor law violations to resist organizing efforts, how to weaken union support in existing union shops, and how to vigorously resist union bargaining efforts during contract negotiations. While it claims to have an active pro-bono practice combating racism and defending voting rights among other things (as do many large business law firms), Ballard Spahr is not a place that would likely attract an attorney looking to devote her or himself to combatting issues like racism in hiring or criminal justice or civil rights and liberties. This is particularly true of the unit Clemons worked in, which handles the management side of labor disputes, not the union side.
Clemons’ casual dismissal of the merits of every claim in Abu-Jamal’s PCRA claim, with the help of facile arguments supplied by ADA Gervino, would seem consistent with the experience she likely gained working at Ballard Spahr.
An example of such casual dismissal of valid judicial claims was Judge Clemons’ rejection of the Mumia’s PCRA assertion that the discovered hidden files in the DA’s office contained evidence of possible deals struck by the prosecution to obtain favorable damaging testimony of guilt from two alleged “eye-witnesses” to the Faulkner shooting — Robert Chobert and Cynthia White.” Her rejection of this claims was based on the patently absurd grounds that even had such evidence been presented to the jury at trial there wouldn’t have been “reasonable probability” that the jury would have reached a different conclusion on guilt!
That is to say, she is saying in her opinion rejecting a PCRA claim that if one or both of the only alleged prosecution eye-witnesses to the shooting could have been shown by the defense at trial to have been induced financially or by a prosecutor’s offer to clear a record or drop a prosecution, into giving false testimony, such evidence would not have likely even convinced even one juror to oppose instead of support a murder conviction. (In felony cases, including of course capital cases, conviction requires a unanimous jury finding of guilty, so that one juror’s “not guilty” vote means acquittal or a whole new trial and new jury.)
This entire judicial 31-page statement by the judge announcing her intention to reject the PCRA is hardly what would likely have been written by Judge Tucker.
Nor I suspect would it likely have been written even by Clemons herself in response to a PCRA claim filed by some less prominent convict in the state’s prison system.
It appears that once more in his long, tortured journey through the corrupt and racist Pennsylvania so-called “justice” system, we are witnessing the manifestation of what prominent Black Philadelphia journalist Linn Washington has dubbed “the Mumia exception, referring to a series of appellate court decisions in his case where precedents were ignored in rejecting his claim, only to be respected later for later appellants.
DA Krasner should be ashamed at himself for have permitted this latest atrocity, which can only be corrected if he finally turns the Abu-Jamal case over to his Conviction Review team for the same kind of re-examination that it has given to so many other less prominent cases of legal errors and corruption.
The defense was given 20 days to respond to Clemons statement and her reasons for rejecting the PCRA, after which the DA gets 10 days to respond.
DAVE LINDORFF is author of Killing Time: An Investigation into the Death Row Case of mumia Abu-Jamal (Common Courage Press, 2003)