Head Strong: Evidence the Pa. death penalty is punishment existing in name only

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.