From The Archives: Michael Schiffmann on Judge Albert Sabo’s 1995-97 PCRA Hearings --"Justice is just an emotional feeling"

--Please sign our Color of Change petition to Philadelphia District Attorney Larry Krasner: Stop Defending Mumia Abu-Jamal's Unjust Conviction

(Note from Jamal Journal: This April 16, 2008 article by German author Michael Schiffmann was first titled “Justice Is Just an Emotional Feeling: Judge Sabo’s 1995-97 Kangaroo Court,” and published in Abu-Jamal News, issue #2. This version has been edited for length.)

One of the three defense points the 3rd Court of Appeals rejected in its March 27, 2008 decision not to grant Abu-Jamal a new trial or at least new hearings in any form was the claim that the behavior of the original trial judge Albert Sabo during the 1995, 1996, and 1997 post-conviction hearings was so unfair and unconstitutional as to warrant relief. 

In its decision, the court gave this point short shrift and referred to one of its earlier decisions where it says it held that federal “habeas proceedings are not the appropriate forum … to pursue claims of error at the PCRA proceeding.” Given the date of that decision (Lambert v. Blackwell), October 12, 2004, it is curious why the court certified Abu-Jamal’s PCRA claim in the first place, a certification that took place only on December 6, 2005.

The courts recent decision practically says that however biased, immoral and outrageous a judge’s behavior may be during PCRA proceedings, it will no longer be subject to federal review.

This alone is reason enough to strongly protest the recent court decision, since as we will see in a moment, Albert F. Sabo posture and deeds during Abu-Jamal’s 1995-97 hearings fit all the adjectives just mentioned, and more.

Judge Sabo at the 1982 Trial

On March 18, 1982, Abu-Jamal’s then lawyer Anthony Jackson made a motion to the pre-trial judge, Judge Ribner, to have questionnaires sent out to prospective jurors in the case to enable the defense to see to it that the jury finally empanelled would be impartial and fair. This was to supply the defense beforehand with more information about the jurors, and one of the reasons Jackson said that information was needed was because of the systematic exclusion of black jurors by Philadelphia prosecutors by means of peremptory strikes.

Ribner, himself a harsh jurist who presided over 9 death sentences, transferred the decision to the trial judge, Albert Sabo, who dealt with the question on June 4 at one of the suppression hearings (during the brief period when Abu-Jamal was allowed to represent himself), of course found the concerns of the defense unfounded and a questionnaire for prospective jurors unnecessary, referring even to alleged Pennsylvania court procedure that disallowed it.

Here, a defense attempt to get information about the jurors in the pool out of which the eventual jurors would be selected, including information about race, was blocked by Judge Sabo even before the jury selection itself, even though a questionnaire, which the defense offered to pay for out of its own all but empty pockets, would likely have saved a lot of time in jury selection – and having a speedy trial was one of Judge Sabo’s purported main concerns.

Judge Sabo at the 1995-97 PCRA Hearings

After the Governor of Pennsylvania, later Homeland Security Czar Thomas Ridge, had preempted the defense’s filing of its PCRA petition by signing an execution order against Abu-Jamal for August 17 on June 1, 1995, Judge Sabo, in a rare display of judicial sadism, refused to stay the execution until August 7, when the proceedings were already well under way. 

That meant that the prisoner moved into the so-called “phase 2,” which in turn meant that Abu-Jamal was stripped of almost all personal belongings, placed under permanent 24 hour supervision, and stripped of the right to use the prison legal library resources at a time when he needed them most.

Judge Sabo used Abu-Jamal’s execution date repeatedly as an excuse to quash subpoenas of important witnesses, to deny supplemental petitions, to interrupt defense attorneys’ arguments, and even to fine and in one case throw them in jail. 

When Judge Sabo finally granted a stay of the execution ten days before the set date, he gleefully told the defendant and his understandably jubilant supporters: “Calm down, don’t be too happy because that’s only for this one.”

In a stunning display of bias, Judge Sabo himself disrupted what is called “courtroom decorum” by allowing off-duty police officers to carry their guns with them into the courtroom. 

After repeated statements by the defense concerning this, at the hearing on July 31, 1995 he said: “They are in here for my protection. […] Any police officer that is in here is authorized to.”

Judge Sabo on the Batson Issue 

When on August 2, 1995 the defense tried to subpoena clerks from the Administrative Office of the Pennsylvania Courts as well as the Jury Commissioner of the County of Philadelphia as part of their PCRA petition argument that jury pools were not drawn “from a fair cross section of the community,” Sabo silenced Mumia’s attorney and had her locked up in a jail cell instead. 

When all subpoenas were quashed, another of Mumia’s lawyers stated during the defense’s closing argument on September 11, 1995: “We have been precluded from presenting any evidence with respect to the racially-biased manner in which jury pools were selected in Philadelphia in 1982.” 

This is particularly stupefying since twelve and a half years later, the 3rd Circuit Court of Appeals:

(1) Denies Abu-Jamal relief on the question of racism in jury selection because of an alleged lack of defense data on the racial composition of the jury pool, the very question one of Mumia’s lawyers tried to address when Sabo locked her up. 

(2) Declares that whatever Judge Sabo did during the PCRA hearings can no longer be part of any federal review, including his move to block the defense from getting hold of the data that the court now demands.

Judge Sabo on Eyewitness Robert Harkins

On August 2, 1995, Sabo blocked one of Abu-Jamal’s lawyers from completing his examination of a potentially important eyewitness of the events on December 9, 1981, cab driver Robert Harkins, who described the shooting of P.O. Faulkner in a way that flatly contradicted the prosecution’s eyewitness’ testimony at the 1982 trial. 

When Harkins, apparently under intense police/prosecution pressure in the days before his PCRA testimony, for the first time ever claimed to have seen the shooter slump down exactly where the police claimed to have found Abu-Jamal, Sabo prevented any further examination of this witness by the defense. 

In the meantime, this has emboldened those for whom Abu-Jamal’s guilt is an article of faith to claim Harkins as a “fifth” prosecution eyewitness, whereas in fact everything else that Harkins ever testified totally contradicts the prosecution’s story of the shooting.

In connection with this, Sabo uttered one of the most shocking sentences during all of the PCRA hearings. When Abu-Jamal’s lawyer insisted on questioning Harkins further “to seek justice” and “to ensure that an innocent person is not executed,” Sabo, after snappishly interrupting him with the words “How about when it [sic] is guilty,” brutally revealed the apparent guidelines of his judicial career: “Counselor, justice is an emotional feeling. That’s all it is. […] Justice is an emotional feeling. When I win my case, it’s justice. When I lose my case, I didn’t get justice, you know. So take it from there.”

Judge Sabo Denies Every Claim

After the final arguments from both sides on September 11, 1995, it took Judge Sabo no more than four days to churn out a 154-page decision with 290 factual findings where he denied every argument made by the defense and found everything that the prosecution had said true. 

His clerks could hardly have written a decision of such length and detail in such a short time without the judge already dictating what to write during the hearing itself in which he was supposed to be a neutral arbiter.

In his decision Sabo virtually duplicated, with all factual mistakes, omissions and distortions, the representations in the prosecution’s PCRA brief about Police Officer Gary Wakshul, the officer who (assigned to guard the arrested Abu-Jamal on December 9, 1981) had expressly stated that Abu-Jamal had made “no comments” at the time, but who would 64 days later claim to have heard a murder confession by the defendant. 

At the 1982 trial, Sabo had blocked this very same officer from being brought to the courtroom to be questioned by the defense on this glaring contradiction.

The 1996 PCRA Hearing: Veronica Jones

Veronica Jones, an original defense witness at the 1982 trial first told police that she saw two men run away from the December 1981 crime scene. Jones then recanted at Abu-Jamal’s 1982 trial and said she had seen nothing. At the 1996 PCRA Hearing, Jones  told her full story, about how the police had coerced her into giving false testimony at the trial. Immediately after testifying, Judge Sabo allowed her to be arrested on the stand for petty charges. 

That was quite different from the treatment of the main prosecution witness at Abu-Jamal’s 1982 trial, Cynthia White, who was brought to the trial from Massachusetts where she served time for prostitution, but was never harassed by Sabo for her outstanding cases in Philadelphia for the same “crime.”

The 1997 PCRA Hearing: Pamela Jenkins

At Abu-Jamal’s final PCRA hearing in 1997, Pamela Jenkins, another Philadelphia prostitute in 1981, testified that like Jones, she was pressured by the police regarding Abu-Jamal. 

Jenkins said she was asked by police to testify that she saw Abu-Jamal shoot Faulkner, even though she wasn’t even at the crime scene. 

Jenkins also testified that she knew how the police had coerced star prosecution witness Cynthia White into mendaciously claiming that Abu-Jamal was the shooter and that she had recently very briefly come across White in person in an attempt to get her to recant her lies. After Jenkins testified about seeing Cynthia White, Judge Sabo allowed the prosecution to produce highly dubious documents according to which White had been “deceased” since 1992.   

Before the three-day 1997 hearing, the prosecution had never mentioned that “fact.” Whereas Sabo found this sudden discovery by the prosecution credible, in the year before he had mockingly dismissed the defense attorney’s claim that they couldn’t find Jones before 1996.