Justice Done in Mumia Case
Editorial

The Denver Post
Wednesday, December 26, 2001, p. B10

Convicted cop-killer Mumia Abu-Jamal has become a poster boy for the 'America Stinks' crowd in the 20 years since he killed Philadelphia police officer Daniel Faulkner. But a Solomonic decision by U.S. District Judge William H. Yohn Jr. - which enshrined a principle long embedded in Colorado's well-tested death penalty law - should go a long way to restore public confidence in the U.S. criminal justice system. Yohn has been assailed by both 'Free Mumia' fanatics and pro-death penalty zealots for his decision that gave Pennsylvania prosecutors six months to hold a new sentencing hearing for Abu-Jamal or to commute his sentence to life without parole. But Yohn's decision conforms closely to both the facts of the case and the decisions on capital punishment set out by the U.S. Supreme Court and faithfully reflected in Colorado law.

Yohn upheld Abu-Jamal's first-degree murder conviction for the simple reason that he was proven guilty beyond all reasonable doubt of murdering Faulkner. Abu-Jamal's .38-caliber gun revolver fired the bullets that hit Faulkner in the back, then between the eyes. The dying officer fired back and police found the wounded Abu-Jamal slumped on the sidewalk near his victim. Several witnesses identified Abu-Jamal as Faulkner's killer.

But while there was no reasonable doubt about Abu-Jamal's guilt, there is good reason to believe that the trial judge sent the jury defective instructions during the penalty phase of the trial. Incredibly, jurors were told they needed to be unanimous in finding any mitigating factors that might cause them to sentence Abu-Jamal to life in prison instead of death.

That's no mere technicality; it's a gross reversal of the burden of proof, which never rests at the defense table under the U.S. Constitution. In contrast, consider the Colorado death penalty statute, which required four steps in the penalty phase in the more enlightened days when juries set that penalty, a task now regrettably delegated to a three-judge panel.

First, the jury had to unanimously conclude that at least one aggravating factor, as defined in the statute, existed in the case. But when next discussing mitigating factors, Colorado jurors were specifically told they didn't need to be unanimous and could even consider mitigating factors not presented by the defense. Mitigation, in short, is anything that even one juror thinks justifies sparing the defendant's life.

That leeway in the second phase reflected the fact that jurors were required in the third phase to unanimously conclude that the aggravating factors outweighed the mitigating factors. Only then could they proceed to the fourth step, where they again needed to unanimously choose a death penalty as opposed to life without parole.

If a single juror is allowed to veto a life sentence in the first, third and fourth phases, it is obviously unconstitutional to require the defense to persuade all 12 jurors that mitigating circumstances exist. Yet that's exactly what happened in Abu-Jamal's case.

The Colorado Supreme Court would have reversed a death penalty handed down on such botched instructions in a heartbeat. The fact that it took 20 years for the error to be corrected in Abu-Jamal's case should give pause to those who want a rush to judgment in capital cases.