Justice Done in Mumia Case
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
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.