In January, Krasner’s office decided to fight Abu-Jamal’s appeal. He told The Intercept at the time that the move was “a narrow, technical decision in one sense, but incredibly complex and nuanced and affects many other cases.” The latest shift is a welcome one, not least because Abu-Jamal’s grounds for new appeals certainly go beyond the technical.
Larry Krasner dropped his opposition to the appeal, opening a potential avenue to freedom for Abu-Jamal, an outcome that had previously seemed impossible.
The reasons for the defense’s new appeal relates to a recusal issue. Former Pennsylvania Chief Justice Ronald Castille had been Philadelphia’s district attorney as Abu-Jamal initially tried to overcome his conviction. Then Castille, who supports the death penalty and has ties to police unions, heard Abu-Jamal’s case between the years of 1998 to 2012 as chief justice. Abu-Jamal’s attorneys argued that Castille should have recused himself from presiding as a judge over a case he had previously played the prosecutor’s role in.
The specifics aside, the mere fact that Abu-Jamal will be able to argue his appeal again in the Pennsylvania Supreme Court is, at the very least, a tacit recognition that his treatment by the criminal justice system was colored by bias and an ideology of deference to the police.
“District Attorney Larry Krasner did the right thing when he withdrew his office’s appeal in Mumia Abu-Jamal’s case,” the Amistad Law Project, a Pennsylvania-based prisoner advocacy and prison abolitionist organization, wrote in a statement. “This shows commitment to individualized justice.”
As The Intercept reported last year, Krasner’s decision to block Abu-Jamal’s appeal effort drew fierce criticism from criminal justice advocates who had high hopes in the district attorney’s promise to radically reform his office. Before taking on the role, Krasner had sued the Philadelphia Police Department for abuses 75 times; as the city’s prosecutor, he recommended parole for former MOVE members. Yet in blocking Abu-Jamal’s appeal, he appeared to side with police interests, earning the ire of activists, raising questions about whether there could truly be a “progressive prosecutor” at a time when prosecutors around the country are winning elections on strong reformist platforms.
The original case was mired in the sort of police misconduct typical in the prosecution of Black Panthers, including evidence tampering and racism in jury selection. According to the affidavit of a court stenographer, Abu-Jamal’s trial judge, the late Albert Sabo, reportedly told someone in the courthouse, “I am going to help them fry the n—–.”
Krasner’s decision this week made no judgement on the activist’s original conviction, but removes a crucial hurdle enabling a historic injustice to be legally challenged. He stressed that his previous opposition was based in the fact that the original ruling to grant Abu-Jamal new appeals had been too broad. Krasner claimed that the ruling, from Philadelphia Common Pleas Judge Leon Tucker, risked reopening many hundreds of cases wherein a judge had at one time been a prosecutor.
Last month, however, Tucker rewrote and narrowed his opinion in such a way that continued to grant Abu-Jamal new appeals but allayed the district attorney’s concern about the possible consequence of reopening many other cases.
The judge’s opinion, which vacates the appeal denials from 1998 to 2012, followed a Supreme Court precedent that also involved Castille. Tucker said that an impartial appeal process is violated if a prosecutor who had significant personal involvement in the case is later a judge in the same matter. The changes Tucker made in his modified opinion makes clear that being a former prosecutor alone is not grounds for recusal, but Castille’s involvement as a prosecutor rose to the level of “significant personal involvement.” As an instance of potential bias, Tucker cited a letter Castille had sent in 1990 urging the governor’s office to issue death warrants for all police killers.
“So-called progressive prosecutors and lawmakers must reverse the racist policies that resulted in the crisis of aging in prison, which disproportionately impacts Black and Latinx people sentenced to ‘death by incarceration.'”
“Although the issue is technical,” wrote Krasner’s office in a muted statement, “it is also an important cautionary tale on the systemic problems that flow from a judge’s failing to recuse where there is an appearance of bias.”
Krasner’s office noted in its statement that, in withdrawing its opposition and allowing Abu-Jamal new appeal hearings, it is “effectively setting the clock back to where it was in the past,” before the appeals heard by Castille. But, for Abu-Jamal, those two decades — half spent on death row — cannot be taken back. Like so many long-term victims of the carceral system, the chance for eventual freedom does not add up to the deliverance of justice.
“So-called progressive prosecutors and lawmakers must reverse the racist policies that resulted in the crisis of aging in prison, which disproportionately impacts Black and Latinx people sentenced to ‘death by incarceration,’” Jose Hamza Saldana, the director of the Release Aging People in Prison campaign and himself a former political prisoner, told The Intercept. “These elders are left to grow old, despair, and die in prison, and could otherwise be safely released to our communities. DA Krasner can and should take the lead on ensuring justice applies to Abu Jamal, reopen his case, decide that the prosecution was racially and politically motivated and support his release from prison.”