Sometime later this year, or early next, the Pennsylvania Supreme Court will decide whether Mumia Abu-Jamal will receive a new trial. We can be certain that if Pennsylvania denies his appeal, he will take his case to the federal courts. With me tonight to discuss the larger issues that arise from this case are Ira Glasser, Executive Director of the American Civil Liberties Union. Mr. Glasser writes extensively on the subject of civil liberties. Vernon Geberth, Homicide and Forensic Consultant, former Lieutenant Commander of the New York City Police Department with over 30 years of law enforcement experience. Jeanine Pirro, District Attorney of Westchester County in New York. Formerly a Westchester County Court Judge. Stuart Taylor, senior writer for Legal Times and The American Lawyer. Stuart is the author of an article about this case entitled "Guilty and Framed." He's also a supporter of Abu-Jamal's efforts to receive a new trial. And Cornel West, author and professor of Afro-American Studies and Philosophy of Religion at Harvard University. Professor West also supports Abu-Jamal's appeal for a new trial. Welcome to you all. Vernon, your reaction to the documentary.
Vernon Geberth
My reaction was that I outraged by the documentary. I found it to be prejudicial, biased, towards Abu-Jamal's case. I felt that the real issue, the death of a young police officer on the streets of Philadelphia was entirely forgotten in a hype that seemed almost surreal as he described being kicked and the lights flashing around. Very, very well done, obviously produced by and supported by folks who were in Abu-Jamal's corner. As a police officer, I have had the unpleasant experience of having to investigate too many homicides of police officers.
Arthur Miller
And Cornel? Your view?
Cornel West
Well, first I want to agree with Vernon that the death of a fellow citizen, in this case Daniel Faulkner, is quite tragic. There's no doubt about that. Whoever did it deserves punishment. But I do think that the documentary made it fairly clear that the law, which ought to be a force of fairness in a democratic society, has not been in this case. And therefore, here's someone who's actually on death row for 13 years, if we can show that there's a reasonable doubt that someone else may have done it than just as citizens, we've got to insure that fairness is put forward.
Vernon Geberth
I would certainly support fairness. As a homicide cop, I have the responsibility, the awesome responsibility of being fair and not bringing to the table a personal agenda. I can't afford to have a personal agenda. Especially in this day and age.
Arthur Miller
Now Stuart, you've written about this. And then you see the documentary. Fair or foul?
Stuart Taylor
I think it's basically fair. There are portions of it I disagree with. Most fundamentally, I think the tone of the documentary suggests there's more doubt as to whether Abu-Jamal actually shot this police officer than I think there is. I think this is something in which reasonable people can disagree and I thought that the documentary through Joseph McGill, the trial prosecutor, allowed that point of view to be presented fairly. At the same time, it's clear that the people who made the documentary had a point of view. They thought he didn't have a fair trial, they thought there was some doubt as to his guilt, and the documentary was prepared with that in mind and therefore was not as balanced as somebody looking for objective journalism ...
Arthur Miller
Point of view journalism.
Stuart Taylor
Yes.
Arthur Miller
Something you're not supposed to be into.
Stuart Taylor
Well, you're not supposed to be into it if you're writing front page stories in the New York Times. But if you're producing a documentary, that's different.
Jeanine Pirro
I couldn't agree with you more, Stuart. When you say that reasonable people can disagree about some of the facts of this case, as related by the documentary. Clearly, there was a bias in the documentary. But I think that the interesting part is that there was a slant on the part of this defendant or appellant, and there were issues that can be easily resolved that were not even discussed in an objective way. But, you know, having said that, I think the important issue here is that we have a police officer who was killed in the line of duty, we also have a defendant who has been on death row for 14 years, which is an indication that there are some problems, in the process.
Cornel West
I think we have to distinguish between bias and a counter-balance. The courts in Philadelphia, they've already made their decisions. He's on death row. The documentary comes along and says maybe in fact there was not fairness in this case. It is a counter-balance to what is already in place in light of decisions that have been made.
Arthur Miller
Abu-Jamal's case has become a national cause celebre. Now Cornel, you got involved in this early. Why? What attracts you to this case?
Cornel West
Well, one, fundamentally, I claim to be committed to fairness and I believe I am. And it's a question of fairness. It would be the case for an ordinary white, brown, red or yellow brother or sister who I thought was treated unfairly by the courts.
Arthur Miller
But why this one? There are 3,000 people on death row in this country.
Cornel West
Well, I must say, if I was called on a number of cases, given whatever time I had, I would contribute to ... contribute the way in which I could that ensured that there's fairness. Now when I was called about this case and was told about it, I responded. And I like to respond to cases across the board in this regard, because it's not just a matter of Abu-Jamal, it's a matter of the criminal justice system in general in this country.
Arthur Miller
Why were you called on this case as opposed to other cases?
Cornel West
My hunch ... I was called from some people in New York who were putting together a gathering. And I said, "Well what are the facts? What's the background? What's going on here?" Because I know people of whatever color have the capacity to be right or wrong, like anybody else.
Arthur Miller
Now Jeanine, what happens if you're on the prosecutorial side of a case that gets captured by the media?
Jeanine Pirro
Well, then, there are a lot of other issues, because what happens when the case becomes a cause celebre is that people start to sign on to a case based upon their own predispositions, based upon where they're coming from, their frame of reference, their assessment of the criminal justice system. And sometimes the facts get lost in the mixture here. And we've seen it before with other cause celebres.
Arthur Miller
Now, Ira, you've done your share of this.
Ira Glasser
The celebrated cases always have, at their root, factual disputes which even if you were in the courtroom and listened to every word of testimony, you wouldn't be 100 percent sure of what the facts were. That's why juries sometimes have a hard time deciding. But here you are, you're a member of the public and you're getting this filtered through all kinds of advocacy journalism and little snippets on the news and so what you do bring to it are your own perceptions. In the O.J. Simpson trial, for example, a key factual question was whether cops planted evidence and then lied about it. Now, if you were black and lived in the inner city, you likely have had a lot of experience with knowing about cases in which cops planted evidence and lied about it. If you were white, middle-class, and lived in the suburb, that would be almost unthinkable to you. So you would form an impression on that facts in that case based on your experience in other cases.
Arthur Miller
But two things bother me. Number one, does this distort the process? Number two, how do we pick this case as opposed to 2999 other cases of people who may not be as articulate, may not be as connected as this man was ... is that in any sense fair?
Stuart Taylor
I think it clearly can distort the process. I don't think it's distorted the process in this case, the criminal process. It also more clearly distorts perceptions when we fixate on this case or on the O.J. Simpson case. However, compared to what? I mean, I think it's better that we pay a lot of attention to this case than if we pay attention to no cases. Because this case, whatever side you're on, illustrates very important problems in the criminal justice system. A police officer was murdered almost 15 years ago and we're still arguing about whether the man who's been on death row most of that time is the one who did it or is not.
Arthur Miller
You sound like a clinical scientist, as if you were examining something in a test tube.
Vernon Geberth
I tell you, from my perspective as a law enforcement and a homicide cop, ... and I don't know anything about the real facts of this case, but just from what I've read before going on this program, this is what we could call in police work, a ground ball homicide. The guy's at the scene, shot by the cop, his gun's there, the ammunition matches. Hey? What's the mystery? This is the guy. Okay?
Ira Glasser
Yeah, but what you don't know is who initiated it, what happened, what the circumstances were.
Jeanine Pirro
Okay, but in addition to that, what you have is a jury that unanimously found him guilty. He was given the death penalty, a conviction that was affirmed unanimously and all kinds of issues throughout the criminal justice system. And the distortion issue is about the public. Well, it doesn't much matter what we say. The most important thing is that the system work. And that the rules are followed. And so I think that ...
Stuart Taylor
... well, if we're going to follow rules, what about the evidence in this case, not to get too deep into it, that the police fabricated a confession out of whole cloth. I shot him and I hope he dies. Made up.
Arthur Miller
We're joined now by Judge Carolyn Engle Temin of the Court of Common Pleas of Philadelphia County. Judge Temin is the Chief Criminal Calendar Judge administering the homicide and major trial divisions for the court. Now, as is clear, from the discussion we had going into the last break, one of the most emotional aspects of this case is the allegations of police misconduct. Just as you pointed out before, there were allegations in the O.J. Simpson case of police misconduct. Now, we don't know what the truth is, as we sit here today, we have to keep referring to these as allegations. What I'm interested in and perhaps you can shed some light on this, Judge, is this a common phenomenon of these allegations of police misconduct in ... in the criminal justice system? Is this now sort of the defense of the day?
Judge Temin
Well, I think that there's a lot of that going on. I think there are a lot of cases where that's part of the defense and there's a reason for it, and that's because we have evidence that it happens. Right now in Philadelphia, if you read the paper, they're covering a case where in a whole police division, evidence was planted and over 200 cases have already been thrown out by the District Attorney of Philadelphia because of this. Police misconduct is very hard to detect. Usually it requires a grand jury, it requires subpoena power and the authority to give immunity and so in an individual case, it would be difficult for the defense to actually establish police misconduct. But we know that it does happen. We hope it's not common. But whether it's a phenomenon in defense of criminal cases, particularly homicide? Yes, I think you can say that it is.
Arthur Miller
In the abstract, you're sitting there with your black robe on and you hear the allegations and you listen to witnesses. Do you have an instinct for these things? Are there signs of the misconduct? When do you believe it, when do you disbelieve it?
Judge Temin
We have to judge allegations of police misconduct as a fact finder and I assume you're asking me as a fact finder, well did the jury ... in cases of this nature, usually, the jury is the fact finder. They're rarely tried to a judge alone. But sitting as a fact finder, we use the same standards that we would use to judge anybody else's credibility in deciding the credibility of witnesses who are testifying about police misconduct.
Arthur Miller
You make prosecutorial decisions based, in large measure, on what the police say to you. Do you have antennae? Do you have red flag signals?
Jeanine Pirro
We have to. We're living in the time when it's simply too important to not suspect that that is a possibility. And what we do as prosecutors, or as judges, is to try to assess whether or not a person appears to be credible, whether what they're saying makes sense, whether it agrees or disagrees with other people who are supposedly at the same place at the same time. But you're correct. It's all about antennas and judgment calls. And with respect to this being almost a mantra now, by defense attorneys in criminal cases, Mark Fuhrman has created the basis and that seed of doubt in jurors' minds so that, you know, a defense attorney would be crazy not to play to that issue.
Arthur Miller
Now Vernon, this is more than 30 years of your life that we've just put on the table.
Vernon Geberth
That's correct. And there is, in fact, police misconduct. And hopefully, it's found out by the police themselves and not exposed, so to speak, because of some police error, okay, and if he becomes part of the ... the case itself. My perception, okay, of this is that we're people, just like everyone else, and sometimes they don't think that cops are people, we're people. We bleed, we cry, we do everything else. We suffer from the same things as the larger society. But you mentioned Mark Fuhrman. To this day I think Mark Fuhrman probably is a racist, but more importantly, I think Mark Fuhrman on those tapes was playing up to that reporter to try to make himself look like someone important who would get a big movie role.
Arthur Miller
You think it's as innocent as that?
Vernon Geberth
Well I think that he certainly has some racist tendencies, but I think that his talk on that tape was to make himself look like some sort of a super cop.
Jeanine Pirro
You know, Vernon, look, he's a liar, he's a bigot, he's a perjurer, he's a racist. He's all those things. But unfortunately, people are drawing the conclusion that other police officers are as well.
Vernon Geberth
Well, I know, because I ...
Jeanine Pirro
And that's the important issue. I mean, the issue here is that police officers get out on the street every day of the week and they put their lives on the line for innocent victims. And prosecutors are, Arthur, prosecuting these cases just as I am in Westchester County, we're putting these cases in the grand jury because it does not behoove us to have police officers on a force who are going to ruin cases, who are going to cause suppression of evidence.
Ira Glasser
The problem is that some terrible crimes are committed against police and also it's true that police commit terrible crimes. And the task, always, is to sort out the facts in a particular case, which is not always so easy. When I grew up in the '50s in New York City, the notion that a cop would beat you up for no reason was as foreign to me as it could be. Cops were people who helped you cross the street when you went to school. When I first heard the ... in the '60s, allegations that cops were and that the FBI was planting evidence and framing and ... and looking to kill members of the Black Panther Party, I thought it was paranoid craziness. Then there was the case of Fred Hampton and so many other cases where it turned out cops did exactly that. So what happens is that when the charge is make, it behooves everybody to take it seriously because we know it happens. On the other hand, it doesn't happen in every instance. So you're still faced, at the end of the day, with the belief that this is possible and you may not, in good conscious, and with any integrity, dismiss the charge of any defendant that the cop did this, you can't just dismiss it, but you still have to take a look at the particular case and try to evaluate the facts in the fairest way possible. That's the task of the jury. It cannot be the task of the public reading newspaper articles.
Arthur Miller
What is the effect in the black community of these high profile cases in which these allegations are made, again, no proof. Allegations?
Cornel West
Well, one is, we don't really need celebrity cases for most black people to acknowledge the level of police misconduct. And it's not a matter of demonizing police. There's misconduct of lawyers, pharmacists, doctors, professors, right across the board. There's a history of differential treatment in black communities, vis-a-vis, other communities. It's partly a matter of class, poor communities versus well-to-do communities and race. There's no doubt about that. And to be an American means you've got to struggle with racism and that's true for policemen, it's true for politicians, it's true for professors, right across the board. So that the sense of ... of the police themselves assuming that they're friendly, given that history, is going to be a difficult one. Even given the tremendous and courageous efforts of some police.
Arthur Miller
Stuart, be a philosopher for me. What do we do? In many instances, and I think Vernon would take this position, the objective of a police officer engaging in ... sort of fabricating evidence is he knows he's got his man, he just wants to sort of embellish the case. He's testalying. What do we do? Should the system throw the prosecution out? Should we punish the cop? How do we solve this?
Stuart Taylor
It's a very hard. Surely, we should punish the cop if he's caught. Because even though he's doing it for an honorable reason, he wants to convict this guilty person, it's against the rules. You don't make up evidence, you don't ... you don't fool with the facts. You don't perjure yourself. And I think we need judges and jurors and prosecutors to be vigilant, we need police to punish their own, but we also need to recognize that there's a special problem here in police misconduct which is, a lot of the police, correct me if I'm wrong, Vernon, think that the courts have rigged the game to make it too hard for them to win. You can't search unless you have a warrant or probable cause. There are a lot of things they think they ought to be able to do to fight crime that the courts won't allow them to do. This creates a temptation to fudge a little bit about what happened to sort of say, "Oh, I saw him drop the gun before I arrested him," rather to admit that you just assumed he had one.
Ira Glasser
Yes, but the problem always is, is that very often, what we don't know is how often a cop will decide this guy is a bad guy. He may not have committed this crime, but he's committed other crimes and I'm going to plant the gun now to get him now because in the larger sense, I'm doing justice, even though I'm making this case up. That's happened.
Arthur Miller
Judge, what does it take to throw a case out these days?
Judge Temin
Well, depending on what ground. You mean on the ground that you believe that there's police misconduct?
Arthur Miller
Yes.
Judge Temin
Well, there may be police misconduct that doesn't infringe on the guilt of the party and the proof beyond a reasonable doubt. For instance, there are cases where some evidence is still suppressed, but there's still enough evidence left for the prosecution to try the case successfully. So even though there's been police misconduct at some point in the case, there's still enough other credible evidence that's admissible under the constitutional requirement that allows the prosecution to continue. But it takes for a policeman to be disbelieved, I think ... you know, we ... we tell the jurors, we ask them whether they will consider the testimony of a law enforcement officer by the same standards that they use to consider anybody else's testimony and you have to say yes to that question in order to get on the jury. But I think most people believe that policemen tell the truth.
Jeanine Pirro
I disagree. When I was a judge, I would ask the potential jurors whether or not they felt that simply because a person wore a uniform that that person was necessarily more credible or more believable than anyone else. Now we're at a different time where the question is almost the opposite. Because they are wearing a uniform, do you promise you won't automatically think that they are less credible?
Judge Temin
... but I think that, as a general rule, that if people were not trying to get on the jury or trying to give you the answer that you expect, that most people, especially from middle class backgrounds, like to believe that policemen are especially professionally trained to do things, they're professionally trained to observe, and that they have no interest in the outcome of the case. And we know that that's not always true.
Arthur Miller
Let's talk about the resources available or not available to a defense team. You've got court-appointed counsel, you've got privately retained counsel. Ira, people would say, look, the state has the police, it's got Jeanine and all of the little Jeanines out there. How can court-appointed public defender defense possibly match that?
Ira Glasser
Well, public defenders and legal aid lawyers are more than competent and experienced as a rule. The problem is that they are also on overload. They have a caseload, normally, because of budget limitations, that no private lawyer would dream of having and that in effect preclude very often, given a case, the kind of attention that it deserves. The kind of defense power that we all saw in the O.J. Simpson is the exact opposite of what the average poor defendant faces. If, in the O.J. Simpson case, a person accused of killing his wife and another person had been a gas station attendant, he would have been on death row in 16 minutes.
Arthur Miller
Oh, there's the cynicism. Well ...
Ira Glasser
98 percent of people convicted of homicide are not sentenced to death. When you look at the two percent who are, this whole debate about the death penalty is that two percent of people convicted of homicide, sentenced to death, and they're almost invariably are poor and without resources and without private investigators and without money and with lawyers who don't know how to try a capital case or with people who do know how to try a capital case but have 90 of them and can't give any of them their attention. There is no question about the fact that the quality of defense for the average defendant has a real relationship to the outcome.
Jeanine Pirro
Okay, now I have to disagree with that. In my experience, I have seen many public defenders, many legal aid attorneys who were far savvier because they spend every day in criminal court than a retained attorney. In addition to that, just as a public defender is overburdened, prosecutors are overburdened. My budget and and our resources are not unlimited. In fact, we're trying and prosecuting more cases than we have in the history of the county with fewer attorneys than we had six years ago. So, you know, we're all, both on the public defender's side and the prosecution side, suffering from the unavailability of all the resources that we could need. And I think that it's a myth to say that because you can hire an attorney that they're probably better.
Stuart Taylor
Who do the police work with? The police are the investigative resources. They work for the prosecutors' office. They don't work for the defense lawyers.
Jeanine Pirro
But Stuart, every day of the week you'll have police coming in and saying that there isn't enough evidence in this case, that this person can't be arrested. You're assuming that every time a police officer looks at a case he's looking to arrest this individual. That's not true. Every day of the week there are people who are not arrested because police have cleared them.
Ira Glasser
That may be, but if that were true ... why ... if O.J. or anybody else in the position to do so had their choice, they wouldn't go to legal aid. And it's not because legal aid lawyers aren't good, it's because you can't do 90 cases without investigatory resources and do justice to those cases. No one in the position to choose would choose that.
Judge Temin
I have to agree with Jeanine. At least from what I've seen in the big cities that have big public defender offices such as Philadelphia, the defender office is almost as big as the District Attorney's office and staffed by equally competent attorneys who are equally overburdened, and they have resources. They have psychiatrists they can hire. They have other resources. What I see though, is the private bar, whether court appointed or retained, and generally it's the same pool, there's a very small pool of lawyers, for instance, in Philadelphia, who try capital cases and they're court appointed sometimes and sometimes they're privately retained. But as a rule, defendants don't have the resources. Even people who can afford lawyers don't have the resources sometimes to pay all the experts you need to successfully defend a capital case, particularly in the mitigation phase. Your case may never go to the penalty phase. It may come out something less than first degree. But if you're charged with a capital offense, you have to prepare for that penalty phase from the very beginning of the case.
Arthur Miller
Now, Vernon, when you were on active duty, were you overworked?
Vernon Geberth
Absolutely. I'm sitting here listening about all these resources we had. I didn't have enough detectives to cover the chart. You're telling me the awesome amount of people we had. It was completely ridiculous. 400 homicides a year in the county of the Bronx when I left. All right? Impossible to handle. The District Attorney then would have the need for these detectives for trial prep, so I lose these people off the chart. So ... I ...
Ira Glasser
... Yeah, but I never said anything about your resources or suggested that they were adequate. What I'm saying is that in the average capital case, the legal counsel and the expert witnesses, and the investigatory resources that are available to the average capital defendant are horrendous and are the things that result in death sentences where people ... you will never find anybody wealthy sentenced to death.
Jeanine Pirro
But a couple ...
Ira Glasser
... tell me why.
Jeanine Pirro
A couple of things. Number one, any judge in that capital case can approve additional spending for the expert witnesses, investigative witnesses, in a capital case. In addition to that, in New York State, when we just passed the death penalty statute, there was more money for the capital defender than there was for even prosecution in these cases ...
Ira Glasser
If that were true, you wouldn't have death penalty resource centers in every state in the south where most of the death penalty cases are.
Arthur Miller
See, Ira makes a good point. There is life outside of New York. There are problems around this ... Stuart, what do you see out there?
Stuart Taylor
I think the further south you get, the worse the defense lawyer typically is in these cases, and New York City, New Jersey, Philadelphia probably are better than most places. What the ... defendants who are the worst off are the ones who get some guy who's maybe a year out of law school trying to learn how to do wills and estates and the local judge says, "Hey, you're defending a death penalty case next week. And we're paying you $500." That happens. It happens a lot. And it doesn't always serve the interest of the prosecution. Because if you look at these cases where people have been sitting on death row for 15 years and they're still appealing, almost always, if you go back and look at the trial, you have a lawyer who did a lousy job and that's why this case is still kicking around.
Ira Glasser
That's what the fight about habeas is.
Cornel West
Yeah, but I think for me, a much deeper issue, which is not the role of the defense and prosecutor, but the role of the criminal justice system in general in our society. We live in a society in which there's increasing disorder, increasing fear, increasing anxiety. And those who already find themselves on the way through the criminal justice system have already been up against a set of circumstances such that it makes it very difficult for us to talk seriously about the justice meted out. Why so? Because it looks as if our society prefers to put the burden on the police to deal with some of these effects of social problems, rather than talk seriously about justice at the work place and education, high quality communities, and so forth. So that even before we move into this dialogue, I think it's important to note on the one hand how the police themselves are overburdened because there's so little attention to the deeper sources of our social problems and then the fact that we're going to find racists among the police, just like we're going to find racists among any other sector of our society and they become then scapegoated and still find some of them abusing, especially young black men. Because you've got the negative stereotypes. Black men are criminals and so forth. And I think before we can even engage in defense versus prosecution, if we can't deal with these larger issues, then increasing disorder and fear are going to lead toward ...
Vernon Geberth
I would tend to agree with everything you said except statistically, the black male is disproportionately represented in the crime statistics. And when we hear about the death of young black males by, not white males, by other black males, right? We're talking about a very violent society. So what you're saying is true. But statistically, the perception is not that far off.
Cornel West
But see, but it makes sense though, Vernon. Why? Because the levels of joblessness among black males exponentially increased in the last 25 years. The level of black men staying in school, junior high, and high school. This is true for any group of human beings who are jobless and don't have access ...
Ira Glasser
Let's not forget the drug prohibition laws which are almost singly most responsible for the differential in sentencing for the higher rates of crime for the explosion of imprisonment, for the disproportionate ...
Arthur Miller
You're all painting a rather terrible picture. You extend your paintbrush to society in general. But for the professionals, the law professionals here, this is an indictment beyond indictment.
Ira Glasser
Yeah, but Cornel makes a very important point that we have over-defined these problems as criminal justice problems. That's certainly true for drug issues. But it's true for most of these issues. And the whole criminal justice system is caught up in a reflection which is a political diversion from the real issues. Politicians make their living getting elected by diverting the public's interest from the real problems into a simpler way of dealing with it. Let's beef up the criminal justice system, let's build prisons instead of schools. Let's deal with those problems because we know how to deal with those problems. If everything becomes a criminal justice system, the cops will be victims, the people will be victims, and we'll all be victims. You can't deal with these problems as if they were criminal justice issues.
Jeanine Pirro
But the reality is that we are living in a society that is more violent than it has ever been. And I couldn't agree with Cornel more. We have got to get to the root causes of poverty, the root causes of why people are not staying in school, and what the problems are, dealing with prevention as opposed to reaction. But in the meantime, what we've got is a violent, violent society and we've got to do something about it.
Ira Glasser
And most of that violence is because people are settling commercial disputes with automatic weapons on the streets. Al Capone didn't shoot people because he was drunk or because he was poor.
Jeanine Pirro
And ... and so you don't disagree...
Arthur Miller
In the Abu-Jamal case, the system is trying to decide whether to give him a new trial. Now one of the things that many people have commented to me about, they simply don't understand, Judge, is how can you have the same judge who sat on the original trial, decide whether that was fair or unfair for purposes of deciding whether to give him a new trial?
Judge Temin
That's the way it's currently done. That's the traditional way and it is our procedure in Philadelphia County that if the judge is still sitting on the bench when the collateral attack is made, and perhaps we should explain that there are two kinds of appeal, one is the direct appeal from the trial, where you have the trial and then you appeal, in our case, to the intermediate appellate court and then eventually, if the supreme court accepts your case, to the supreme court of Pennsylvania, and then you can go to the supreme court of the United States. After you finish that, you can come back and do what's called a collateral attack on your appeal, which is where the Jamal case is now, on collateral attack. And you start once again at the trial level. And traditionally, the same judge who sat on the trial hears the collateral attack, hears additional evidence and additional arguments, and reassesses the case and decides whether the original proceedings were fair.
Jeanine Pirro
And that collateral attack is based upon information ...
Arthur Miller
Yes, explain collateral attack.
Jeanine Pirro
The collateral attack is based upon evidence that was not part of the original record which is why it can go back to the original judge. Then the original judge makes the assessment as to whether or not there should be a new trial because of the information that he or she didn't know.
Arthur Miller
And that sounds good in theory, if the basis for the attack is, we've got new stuff. But what if the basis of the attack is your conduct in hearing the case? To give that back to the same judge bothers some people.
Judge Temin
That is a practice that judges how we routinely re-examine our own rulings. And we routinely hear new arguments about why we ... what we did was wrong. And we welcome, most of us, the opportunity to re-examine that because we're human and we make errors.
Cornel West
... cases in which the judges have decided that a particular judge has been thoroughly unfair?
Judge Temin
Sure. On appeal. On the direct appeal.
Cornel West
On appeal. So appeal is the next level of accountability.
Judge Temin
A judge may re-examine his or her own ruling and decide that it was in error.
Cornel West
But that's still self-regulation. What about mechanisms of accountability for charging that the judge is unfair.
Ira Glasser
This federal habeas. And that's particularly useful ... years ago, during civil rights movements in the south where southern judges regularly convicted black defendants in outrageously and explicitly brutal racial ways, the only remedy was not to appeal to those judges or even to their appellate courts in the state court system. It was to get out of the system entirely, go into federal court, and on what's called a habeas petition, and basically say this trial was unconstitutional because of certain things that happened. And ask the federal court to order a new trial.
Arthur Miller
All right. Let's review the bidding. Because there may be some heads swimming out there. You're convicted, you take an appeal up to the highest court, maybe you try to get to the U.S. Supreme Court. It doesn't work. Then you try a collateral attack, right? You come back in to the original court, knock on the door and say, "Hey, something was rotten here." That doesn't work. Presumably, you appeal that up. Then, in the old "three strikes you're out" image, you say, "Okay, now I'm going to go across the street to the United States Federal Court and I'm going to do it all over again." And that is why we are in the 14th year of this case?
Jeanine Pirro
Exactly.
Ira Glasser
Well, that could be as one of the reasons.
Judge Temin
There are reasons why time passes when nothing happens. You're assuming that one thing follows another. And that didn't used to happen. And traditionally, particularly in capital cases, that didn't used to happen, the collateral attack was often not filed until the execution warrant was summoned. But now we have new statutes, both passed by congress and by the various states, that are trying to stop that from happening and would make the scenario much as you described it where the collateral attack follows not only immediately upon the appeal, but you have to bring it with the direct appeal.
Arthur Miller
Let me be cynical for a moment. I'm sitting on the appellate court. Some misguided governor has made me a judge of an appellate court. I see a case coming up to me, and maybe there are lots of errors in the case. But I say to myself, that defendant is guilty as sin. I know that. I can see it in the record, despite the errors. If I send that case back down for retrial, so many years later, given the attitude that jurors have toward police, a jury today is going to acquit. Now, should I be thinking that way, Stuart? As an appellate judge?
Stuart Taylor
The law clearly says you should not. If the first trial was unfair in a way that's constitutional error, you're supposed to reverse it and not worry about what happens next, even if all the witnesses are dead, let alone just having forgotten things. I think in reality it would be hard for the appellate court not to think about that. If they think, well, there was some error in this trial, let's say, I think the confession was phony or something, but I know this guy did it and I'm afraid that the jury's going to let him walk, I think judges think about that.
Cornel West
I think that's one of the best arguments against the death penalty, though. We have to have such absolute knowledge, almost divine knowledge to be so certain that we then put someone to death. As long as there's that possibility of error, then you would think in the case of a death penalty there ought to be a full-fledged re-evaluation and very, very strong mechanisms of accountability. That's true for anyone ...
Arthur Miller
Let me play devil's advocate. The reason the criminal justice system has no deterrent effect is because by playing all of these cards, by being super careful, there's no reality to the system.
Cornel West
No, not at all. I think first we need to broaden justice in the society. But on the other hand, we've got to be able to show that punitive punishment can be meted out without it requiring a death penalty which would require a kind of divine knowledge that no mortal has.
Arthur Miller
That's why you're a professor of religion.
Arthur Miller
Stuart, where are we in the Abu-Jamal case as we sit here tonight?
Stuart Taylor
Ironically, we're fairy early in the case in its 15th year in the sense that he's doing his first so-called collateral attack in state court. The trial judge, ruled against him last September. He has appealed to the Pennsylvania Supreme Court. The total briefs filed by both sides are more than 300 pages. Jamal is still coming up with new evidence. He recently filed an affidavit from a defense witness who says the police threatened her with a long prison term if she didn't say what they wanted to say. The Pennsylvania Supreme Court will probably hear arguments later this year. Jamal's lawyers are not optimistic about their chances because the Pennsylvania Supreme Court has already ruled four-nothing against him. Then he'll go to federal court and start over.
Arthur Miller
And he's being represented at this point by new counsel.
Stuart Taylor
He now has new counsel. Very competent counsel with adequate resources. Leonard Weinglass is his senior lawyer who's represented a lot of radicals over the years, including the old Chicago Seven trial. And he's being very well represented now and that's one reason the briefs are 300 pages.
Arthur Miller
How long will this process go on?
Stuart Taylor
It's very hard to tell because congress in April passed a new law that's designed to cut it shorter at the federal level. So suppose he loses in Pennsylvania next year, a few years ago he might have looked forward to years more of federal appeals. Now congress is trying to shut that down to make a federal appeal go very fast, over and done with within a year or two and it remains to be seen whether that will succeed.
Arthur Miller
As a professional law enforcement officer, Vernon, what's your reaction to all this?
Vernon Geberth
My reaction is that, I know this sounds very foolish, but I believe in a higher authority, and all of this that takes place now, there's a guy upstairs who knows who did what and there will be a reckoning. And as a homicide cop, I believe in that. And, of course, I try to bring that into my investigations. But yes, there will be a reckoning after all is said and done.
Cornel West
Vernon, I believe in that same God, but I also think it's important that we have increasing attention to ensure that justice is done, that fairness is done to the best of our human ability.
Vernon Geberth
And I believe in that also, Cornel. And the problem is, and I'm going to have to agree with you, justice is not done in the criminal justice system 'cause I know. I see the surviving families. As a homicide cop, I know that.
Jeanine Pirro
And the fact that we are here 14 years later and the fact that this defendant has had 14 years within which to appeal and will continue to appeal is an indication that the system is sensitive to the needs of the defendant, and sometimes we forget that we're here because a police officer was shot in the line of duty.
Ira Glasser
And its precisely that sensitivity which congress has just sought to erase. That's the problem.
Jeanine Pirro
No, what congress has sought to do is to make sure that the defense doesn't wait until the day that the warrant is signed to bring the next appeal.
Ira Glasser
Well, you talk about the defense not waving, is this defense was sitting there, when in fact, what usually happens in most death penalty cases, as you know, is that the defense was incompetent and it's only when you get new lawyers later on and you ... and the execution warrant has been signed, that the thing always starts. That's why it happens that way. Nobody who voted for that bill restricting habeas would want to be subjected to it if it was their life on the line or one of their kids.
Judge Temin
I have to take issue with your statement that most lawyers are incompetent.
Ira Glasser
Most lawyers in death penalty cases. In most states where the death penalty is ... in the south, have not had competent counsel.
Arthur Miller
All right, unlike the criminal justice system, in television, I have to say I'm afraid that's all the time we have.
We hope our discussion has provided you with the context in which to understand this case. And perhaps more in importantly, has illuminated some of the problems that confront our system of criminal justice. I'd like to thank the six people who have joined me on this discuss for Court TV. I'm Arthur Miller. Good night.
