IN THE PHILADELPHIA DETENTION CENTER that fall, Walter waited for the Pennsylvania Superior Court to rule on his double jeopardy argument, that the “not guilty” verdict at the first trial had been signed by the jury and should therefore stand. If they agreed, he’d go home; if not, he’d be tried again. He spent most of his time in his cell. Some inmates had been convinced by following his trial that he actually hadn’t killed Barbara Jean, and they left him alone. Others beat him if he showed his face.1
Walter became friends with David Dickson, a thirty-four-year-old army veteran and former Wells Fargo security guard. Dickson was charged with the 1984 murder of Deborah Wilson, a Drexel University student. Walter and he had met that spring in the infirmary, where Walter was being kept separate from the other inmates for his own safety and Dickson was under observation after being discovered twisting his sheets into a noose. Dickson found Walter to be not as sharp as an average person and childlike, more a twelve-year-old than a grown-up. They played chess and talked. Dickson never heard him say anything about his case except that he was innocent.2
As Philadelphia district attorney Lynne Abraham waited for the superior court’s ruling on Walter’s appeal that fall, the distorting effect of politics on our justice system was on display in the Pennsylvania governor’s race between Republican congressman and former prosecutor Tom Ridge and Democratic Lieutenant Governor Mark Singel. The race focused on crime—“our only issue,” a Ridge spokesman said3—and reinforced an important lesson for the politically ambitious Abraham: show no mercy or be prepared to lose.
Singel’s staff searched through cases from Ridge’s time as a prosecutor, hoping to embarrass him with any case in which he’d taken less than the toughest stance possible. Ridge’s team likewise searched for something to damage Singel, who, as lieutenant governor, was chairman of the Pennsylvania Board of Pardons, overseeing recommendations that the governor commute the sentences of a few inmates per year for good behavior.
Or, as a Ridge TV ad put it, “Mark Singel met with convicted murderers and rapists to promise understanding and mercy. Then, incredibly, Singel voted to release forty-eight criminals serving life sentences.”4
Singel was ahead by four points when, a month before the election, one of the inmates the Board of Pardons had recommended for release was arrested for kidnapping, rape, and robbery in New York and was also suspected of murder. The tragedy was a political gift for Ridge, who used it to attack Singel, pulled ahead by twelve points, and won the election by five.5
“When it comes to the death penalty,” Lynne Abraham told Tina Rosenberg, a writer for the New York Times Magazine, in 1995, “I am passionate. I truly believe it is manifestly correct.” It wasn’t a deterrent, Abraham said, but it gave the people of the city the feeling of control. “We are so overwhelmed by cruelty and barbarism, and most people feel the legal system doesn’t work,” she said. “We feel our lives are not in our own hands. . . . I represent the victim and the family. I don’t care about killers.”6
Abraham’s willingness to admit that the death penalty isn’t a deterrent but offers a sense of control to a scared populace is startling for its honesty: prosecutors don’t usually admit they do things for appearances, especially in death penalty cases; it sounds better and is more in keeping with their job descriptions to say they follow the facts and pursue justice. Because if their goal is to make society feel safe or in control, as opposed to finding the truth, a conviction helps whether the defendant is guilty or not.
Philadelphia County had 105 people on death row in 1995, third most of any county in the country behind Harris County (Houston), Texas, and Los Angeles County—both of which had many times more people and more murders than Philadelphia. No prosecutor in the country used the death penalty more than Abraham, who sought it in nearly every case the law allowed.7
Asked if she’d ever seen a death sentence given to someone who didn’t deserve it, Abraham said “no”; asked specifically about the case of an innocent Philadelphia man who’d spent four years on death row because, a court ruled, Philadelphia police lied on the stand at his trial, Abraham said, “He wasn’t executed. The system worked.” She was arguing that what mattered wasn’t that police lied to put an innocent man on death row but that the lies eventually came out—despite, it should be said, the best efforts of her office, which had fought the exoneration. She didn’t address the larger implication of her own argument, that if the system catches some of its mistakes it must miss others, which means innocent people spend their lives in prison and are executed. Only since the Innocence Project and other groups started using DNA to prove wrongful convictions in droves have a sizable number of DAs and law enforcement leaders been willing to admit this.
Lynne Abraham was fiercely political, but her toughness was not just posture. She’d grown up, in Tina Rosenberg’s memorable phrase, a “tomboy and alley-prowler”8 in West Philadelphia; her father was a butcher, a nightclub owner, and a bookie, who took his daughter along on money collection runs. She put herself through Temple University and Law School and, in 1967, took a job in the DA’s office under future US Senator Arlen Specter. She earned a reputation for toughness even in that cutthroat, male-dominated world, investigating cases in high-crime neighborhoods with a .38 on her waist. She was willing to do “whatever she had to do to win,” as a police officer who worked with her at the time put it.9
In 1971 Mayor Frank Rizzo, a former police commissioner, appointed Abraham head of the Redevelopment Authority in Philadelphia, only to fire her thirteen months later when she wouldn’t hire clerks he sent her as part of his patronage machine. Standing up to Rizzo made Abraham famous, and she was elected a municipal court judge in 1975. In 1979 she moved to the Court of Common Pleas, and in 1983 became one of the select judges in Philadelphia who heard only homicide cases.
To admirers, Abraham was knowledgeable, firm, courteous, and extremely tough; to some defense lawyers she was more like a prosecutor than a judge.10 That was made official in 1991 when DA Ed Rendell quit to run for mayor and a panel of common pleas court judges appointed Abraham to replace him. She became the latest in a line of politically ambitious Philadelphia DAs that included Specter, Rendell (mayor of Philadelphia, governor of Pennsylvania), and Ron Castille (later chief justice of the Pennsylvania Supreme Court). Abraham didn’t create the win-at-all-costs philosophy that dominated the Philadelphia DA’s office, but she was trained in it, and, as DA, with an eye on higher office, openly considering runs for mayor and attorney general, perpetuated it.11
The Philadelphia DA’s office was well known for this philosophy. In 1992, a Pennsylvania superior court judge, throwing out a Philadelphia murder conviction, wrote that prosecutorial misconduct happened in Philadelphia County more than in any other county in Pennsylvania and reminded prosecutors that the Commonwealth’s client was justice.12 In response Abraham, stung and politically sensitive to public outrage, demoted the head of her homicide office because of systemic cheating in that office—hiding evidence from defense lawyers, striking African Americans from juries because of their race. Abraham needed to hold someone responsible, but it’s hard to imagine how such organized cheating could have happened without her knowing about it.
In fact, as far as striking African Americans from juries went, she did know; her office used a 1986 videotape made by ADA Jack McMahon to train young prosecutors in jury selection, including how to remove blacks from juries.
On the tape McMahon explained that jury selection was the most important part of a criminal case: preparation, evidence, and witness statements didn’t make a damn bit of difference without a good jury, he said.13
“The case law says that the object of getting a jury is to get—I had to look this up because I didn’t know this was the purpose of a jury—a ‘competent, fair, and impartial jury,’” McMahon said. “Well, that’s ridiculous. You’re not trying to get that. . . . And if any one of you think you’re going to be some noble civil libertarian and try to get [fair] jurors, that’s ridiculous. You’ll lose and you’ll be out of office. . . . The only way you’re going to do your best is to get jurors that are as unfair and more likely to convict than anyone in that room.”
The ideal juror from the Commonwealth’s standpoint, McMahon went on, would be willing to hang his own mother. Young prosecutors should remember, he said, that the key to getting that best juror is, like in blackjack, to stay within your own rules: take solid, well-dressed citizens from strong families, people who read simple books instead of Karl Marx. Never take a lawyer or a law student, never take a social worker, don’t take a teacher, they’re too liberal, unless maybe it’s a white teacher from a mostly black school who’s fed up with black teenagers. Never take Quakers, they need too much evidence. Blacks from low-income areas are less likely to convict, so you don’t want “those people” on your jury; it may look like you’re being racist, but you’re just being realistic. If you are going to take blacks, you want older black men.
“Black women, young black women, are very bad,” he said.
But he wasn’t arguing for all-white juries, he said, because an all-white jury might not even care about the case if the defendant and victim were both black. An ideal jury is eight whites and four blacks, or nine and three. To get around the then-recent Supreme Court ruling in Batson v. Kennedy (1986) that declared striking black people from juries for their race alone unconstitutional, McMahon said they should interview the black potential jurors at great length and make sure to jot down things they could excuse them for without mentioning race as an issue. Death penalty cases offer a chance for this, McMahon explained, because the lawyers get to interview, or voir dire, the potential jurors one at a time, so they can be more confrontational without the risk of alienating the rest of the jurors.
Most of all, McMahon explained, keep smart people off the jury.
“Smart people will analyze the hell out of your case,” he said. “They hold you to a higher standard. . . . They take those words ‘reasonable doubt’ and they actually try to think about them. You want people to come in there and say, ‘Yep, she said he did it, he did it.’”
Abraham herself would make the tape public when, in 1997, McMahon ran against her for DA. She used the tape to damage him; it was also a “surprise gift” for hundreds of convicted felons whose cases would all be subject to greater review because of it.14
Abraham won the election.