Head
Strong: Evidence the Pa. death penalty is punishment existing in name only
4.6.08
By Michael
Smerconish
Inquirer
Currents Columnist
Maureen
Faulkner called me in a panic.
She'd just retrieved a voice
mail from Philadelphia Assistant District Attorney Hugh Burns, alerting her to
a federal appellate decision concerning the man who a jury said murdered her
husband.
But her messaging system had
garbled the important news. She was desperate to know whether I'd learned the
outcome.
How incredibly sad, I thought.
Twenty-six years removed from Danny Faulkner's execution, and she still jumps
when the telephone rings. Hers is the sort of apprehension a parent experiences
when a child is out late and the nighttime silence is pierced by a ringing
phone. Given the volatility of the case and the endless appeals, she's found no
silence since that early morning knock awakened her Dec. 9, 1981. And it's
still not over. Which is why I believe we need to rethink the death penalty.
By now, we all know the
news: While the 1982 conviction of Mumia Abu-Jamal was upheld, the jury's
sentence will not be imposed - short of a successful appeal by the D.A.'s
Office, or a re-reversal at yet another sentencing hearing.
The death sentence has been
stayed, not because of any actual finding of confusion on the part of the jury,
but because a three-judge panel decided that "the jury instructions and
the verdict form created a reasonable likelihood that the jury believed it was
precluded from finding mitigating circumstance that had not been unanimously
agreed upon."
As District Attorney Lynne
Abraham summarized for me last week, "Sometimes, the court substitutes
what it believes might have happened for what really happened - in an abundance
of caution. Now, we don't always agree with this, because the court is saying,
'Well, we think there's the possibility that there's an ambiguity in the jury
form, and we think they may have been confused.'
"Well, they didn't ask
the jury whether they were confused. They're just thinking for the jury. That's
the way the system goes."
The written decision
reminded me of something I'd heard when sitting through the appellate arguments
last spring, when one of the lawyers based his argument on how many words
removed from unanimous the word mitigating appeared on the
verdict slip.
Today, that is the
technicality sparing Abu-Jamal's life. So, even though the court has again
affirmed Abu-Jamal's guilt, it nevertheless refuses to allow him to be
executed.
It's more proof that the
death penalty in the commonwealth is a sham, a paper tiger, and a form of
punishment that exists in name only. Consider that there are currently 228
individuals on death row in Pennsylvania. Since capital punishment was
reinstated in 1978, three people have been put to death (the last was Gary
Heidnick nine years ago) - and only after each of the three gave up his appeal.
It's time to stop kidding
ourselves. The death penalty needs to be removed from the Pennsylvania
sentencing options, at least until the appellate procedure is streamlined by a
legislature willing to oversee judicial obfuscation.
Apparently, I am not alone
in these feelings. Joseph McGill prosecuted Abu-Jamal in 1982. "You're
right, it's something that really takes you aback when you think about
it," he told me. "And I think it comes down simply to this. . . . A lot of courts do not like the death penalty.
They simply don't like it. Now, I am not saying that they are making up things
just to prevent putting it on. I'm not saying that. I think that they're in
good faith with what they're trying to do. And it is obviously a tremendously
critical decision. All of this I understand.
"But it really comes
down to this point . . . if we don't like the death penalty, if we don't feel
that it's appropriate in this commonwealth, well, let's just get it off the
books. And let's not pretend."
Presumably, it's on the
books because voters want it, and politicians covet voter support. But
something happens between campaign season and the appellate process. The
judiciary stands in the way. And no one seems to hold our judges accountable
for the roadblocks they erect. In the meantime, victims are overlooked or
forgotten.
Danny Faulkner was one of
seven children born to Thomas and Mary Faulkner. Mary was alive when her son
was murdered and attended every day of the subsequent trial before passing away
a few years thereafter. (Thomas, a trolley driver, died when Danny was a boy.)
All of Danny Faulkner's siblings were alive at the time of his tragic death,
but only two are with us today.
In other words, Danny's
mother, his one sister and three of his brothers died after his murder, but
without closure. The same is true for Maureen Faulkner's parents, who
painstakingly accompanied her to the trial in 1982.
Meanwhile, the man who heaped
tragedy upon everyone related to the Philly cop still lives, albeit behind
bars. Abu-Jamal is now in his mid-50s.
The Faulkners and the City
of Philadelphia were victimized twice: first by an assailant, a so-called
journalist, whose only contribution to the city he covered is the murder of one
of its police officers; second, by a judicial system content to prescribe a
punishment it is unwilling to deliver.
Michael Smerconish's column
appears Thursdays in the Daily News and Sundays in Currents. He can be heard
from 5 to 9 a.m. weekdays on "The Big Talker," WPHT-AM (1210).
Contact him via the Web at http://www.mastalk.com.