Guilty and Framed
by Stuart Taylor, Jr.
The American Lawyer
December 1, 1995
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It need hardly be said that the subtlest practitioners of doublethink are those who invented doublethink and know that it is a vast system of mental cheating. In our society, those who have the best knowledge of what is happening are also those who are furthest from seeing the world as it is. In general, the greater the understanding, the greater the delusion; the more intelligent, the less sane. One clear illustration of this is the fact that war hysteria increases in intensity as one rises in the social scale. Those whose attitude towards the war is most nearly rational are the subject peoples of the disputed territories. To these people the war is simply a continuous calamity which sweeps to and fro over their bodies like a tidal wave. Which side is winning is a matter of complete indifference to them. They are aware that a change of overlordship means simply that they will be doing the same work as before for new masters who treat them in the same manner as the old ones. The slightly more favoured workers whom we call 'the proles' are only intermittently conscious of the war. When it is necessary they can be prodded into frenzies of fear and hatred, but when left to themselves they are capable of forgetting for long periods that the war is happening. It is in the ranks of the Party, and above all of the Inner Party, that the true war enthusiasm is found. World-conquest is believed in most firmly by those who know it to be impossible. This peculiar linking-together of opposites -- knowledge with ignorance, cynicism with fanaticism -- is one of the chief distinguishing marks of Oceanic society. The official ideology abounds with contradictions even when there is no practical reason for them. Thus, the Party rejects and vilifies every principle for which the Socialist movement originally stood, and it chooses to do this in the name of Socialism. It preaches a contempt for the working class unexampled for centuries past, and it dresses its members in a uniform which was at one time peculiar to manual workers and was adopted for that reason. It systematically undermines the solidarity of the family, and it calls its leader by a name which is a direct appeal to the sentiment of family loyalty. Even the names of the four Ministries by which we are governed exhibit a sort of impudence in their deliberate reversal of the facts. The Ministry of Peace concerns itself with war, the Ministry of Truth with lies, the Ministry of Love with torture and the Ministry of Plenty with starvation. These contradictions are not accidental, nor do they result from ordinary hypocrisy; they are deliberate exercises in doublethink. For it is only by reconciling contradictions that power can be retained indefinitely. In no other way could the ancient cycle be broken. If human equality is to be for ever averted -- if the High, as we have called them, are to keep their places permanently -- then the prevailing mental condition must be controlled insanity.
-- Nineteen Eighty-Four (1984), by George Orwell
Death row celebrity journalist Mumia Abu-Jamal got an unfair trial before a biased judge. His "confession" was probably fabricated by police, who may have rigged other evidence too. But he is also -- probably -- an unrepentant cop-killer. So what now?
You've probably heard about the current darling of the radical-chic crowd and the America-bashing European intellectual set: Mumia Abu-Jamal, a convicted cop killer seeking to parlay his literary and black militant credentials into a ticket off death row.
In a full-page advertisement in the August 9 New York Times, 112 writers, actors, politicians, and others declared: "There is strong reason to believe that as an outspoken critic of the Philadelphia police and the judicial and prison systems, Mumia Abu-Jamal has been sentenced to death because of his political beliefs." The signers included the likes of director Oliver Stone, actors Mike Farrell and Paul Newman, Professor Derrick Bell, and the same Norman Mailer who helped free killer-author Jack Henry Abbott, who killed again.
Cornel West compares Jamal with Martin Luther King, Jr. Jesse Jackson compares him with Nelson Mandela (who has asked that Jamal be spared). And Jamal's book, Live from Death Row, has helped make him an international cause celebre, selling more than 50,000 copies since May.
What you would not know from such stuff is that the evidence shows that Jamal is probably an unrepentant killer, who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back.
So why the big hoo-hah about this character? Is it just the old radical conceit that any black guy who shoots a white cop can't be all bad, especially if he is a "revolutionary" with the Black Panthers on his resume, long dreadlocks, an engaging smile, and a way with words?
Actually, it's more complicated than that. Complicated enough that I'm joining the "Save Mumia" movement, here and now.
After a derailed review of the trial transcripts, witness statements to police, and other evidence brought out before and during a much-publicized post-conviction hearing this summer in state court in Philadelphia, it appears to me that Jamal's trial was grotesquely unfair and his sentencing hearing clearly unconstitutional.
Jamal was prejudiced by police misconduct and probably rampant police perjury; ineffective and underfunded defense lawyering; inappropriate prosecution arguments to the jury; egregiously bad judging by the notoriously biased, pro-prosecution Albert Sabo of the Philadelphia Court of Common Pleas; and questionable voir dire stratagems that forced Jamal to face an 83 percent white jury (ten whites, two blacks) in a 40 percent black city.
Due to this toxic combination of factors, the jury that convicted and condemned Jamal in 1982 lacked some important evidence, including a police report strongly supporting Jamal's claim that his "confession" was a complete fabrication, cemented by perjured prosecution testimony.
There is also evidence -- much of which the jury did not have -- suggesting that all three of the prosecutions eyewitnesses changed their stories to conform to the prosecution's theory of the crime between their initial police "interviews" and their testimony at trial, and that the police sought to stifle exculpatory evidence.
Moreover, even if Jamal did kill Faulkner, the evidence shows that there were mitigating circumstances: When Jamal came on the scene, what he saw was a big (6-foot) white police officer beating Jamal's much smaller brother bloody with a 17-inch flashlight; and when Jamal rushed to his brother's aid, the officer probably shot Jamal in the chest before Jamal shot the officer -- perhaps before Jamal drew his own gun.
In the end, even the overblown assertion in that New York Times advertisement -- that Jamal "has been sentenced to death because of his political beliefs" -- has a kernel of truth to it.
A MOST UNUSUAL DEATH ROW INMATE
Mumia Abu-Jamal is an extraordinary man, with a powerful intellect, a rare talent for radio journalism, a burning empathy for poor people, a lot of admiring friends in journalism and politics, and no prior record of crime or violence, despite personal experience of police brutality and years as a teenage Black Panther under the microscope of FBI and police surveillance.
The day after the 27-year-old Jamal's arrest, the Philadelphia Inquirer reported that Jamal's "searing and skillful interviews" had made him "a well-known figure in local broadcast journalism." Jamal had been on National Public Radio, the National Black Network, and local Philadelphia stations including WUHY-FM (now WHYY). He had been elected chair of the Philadelphia Chapter of the Association of Black Journalists and had won mention in Philadelphia magazine as one of "81 people to watch in 1981."
You won't find many people on death row with credentials like that.
But this was no ordinary journalist, either. Jamal's radical activism went back to his mid-teens, when, he has said, he was beaten, threatened with a gun, kicked in the face, and called "nigger" by police in connection with various peaceful protest activities.
While he was protesting at a George Wallace for president rally in 1968, Jamal wrote in Live from Death Row, "we were attacked by several white men. I was grabbed by two of them, one kicking my skull while the other kicked me in the balls. Then I looked up and saw the two-toned, gold-trimmed pant leg of a Philly cop. I yelled, "Help, police!" The cop saw me on the ground being beaten to a pulp, marched over briskly -- and kicked me in the face. I have been thankful to that faceless cop ever since, for he kicked me straight into the Black Panther Party." Jamal became a founding member of the Black Panther Party's Philadelphia chapter in 1969 at the age of 15.
After joining mainstream news organizations in the 1970s, Jamal, who changed his name from Wesley Cook as a teenager, took an interest in stories about police brutality, and with good reason. The Philadelphia police department was so notorious that the Justice Department, in an unprecedented 1979 civil suit, charged then-mayor (and former police commissioner) Frank Rizzo and the top police brass with encouraging rampant police brutality, racism, and lying. (The complaint was dismissed on jurisdictional grounds.)
By the late 1970s Jamal was also an ardent sympathizer of MOVE -- a black militant, antiestablishment, antipolice group -- and was wearing his hair in long dreadlocks like a MOVE member. By mid-1981 Jamal's growing obsession with MOVE had compromised his standing as a journalist and cost him his job at WUHY. He was freelancing while moonlighting as a cabdriver. After being robbed, he had started carrying a gun.
Nonetheless, Jamal's arrest for Faulkner's murder stunned friends and fellow journalists, several of whom have said that despite the revolutionary rhetoric, violence was alien to his nature.
WHO SHOT FAULKNER: WHAT THE JURY HEARD
Police officer Daniel Faulkner's radio dispatches, accounts of witnesses, and physical evidence establish beyond serious dispute how the chain of events leading to Faulkner's death began that December night in 1981.
At 3:51 A.M. Faulkner stopped Jamal's brother, William Cook, who was driving a Volkswagen Beetle, apparently for a traffic violation, on the south side of Locust Street, about 80 feet east of 13th Street. It was a seedy area replete with late-night bars, nightclubs, cafes, and streetwalkers. Faulkner radioed his location, and then added: "On second thought, send me a wagon" -- apparently planning to arrest Cook (or someone in Cook's car) for an unknown reason.
Both Faulkner and Cook got out of their cars. Faulkner spread-eagled Cook across one of the cars. Then Cook suddenly turned and slugged the officer, or so say two prosecution witnesses. Faulkner responded by clubbing Cook several times with his 17-inch flashlight. (Cook's face and neck were bloody when police arrived.)
WITNESS: ABU-JAMAL DIDN’T SHOOT FAULKNER
William Singletary, a local businessman, said he was standing on a nearby street corner and witnessed the shootings. Immediately after, he tried to give his statement to police that Abu-Jamal arrived after Faulkner was already shot. Homicide detectives interrogated and threatened Singletary with bodily harm, as well as the trashing of his business, if he testified in favor of Abu-Jamal. And then Abu-Jamal’s brother, Billy Cook, later swore that his business partner, Ken Freeman, was in the car with him, and participated in the shooting of Faulkner.
-- Manufacturing Guilt, written & produced by Stephen Vittoria & Justin Lebanowski
As explained in a recent interview, O'Connor argues that the actual shooter was a man named Kenneth Freeman, who was Billy Cook's business partner and who O'Connor argues was a passenger in Cook's car when it was pulled over by Officer Daniel Faulkner the morning of Dec. 9, 1981. Freeman was mysteriously found dead in a Northeast lot (reportedly naked, gagged, hand-cuffed, and with a drug needle in his arm) the day after the infamous May 13, 1985 police bombing of MOVE, leading O'Connor to conclude that "the timing and modus operandi of the abduction and killing alone suggest an extreme act of police vengeance." ...
"They arrested me for assaulting him, but I never laid a hand on him. I was only trying to protect myself," says Cook, who also reports that before he was beaten bloody with the police flashlight, Faulkner "was kind of vulgar and nasty. And if I remember correctly he threw a slur in... 'Nigger' get back in the car."
-- Mumia Abu-Jamal Faces US Supreme Court as New Book and Film Expose Injustice, by Hans Bennett
At this point, Jamal came out of a parking lot on the northeast corner of Locust and 13th, accelerating from a walk to a run as he charged across Locust Street, right at Faulkner. That's when the shooting started, at point-blank range. (It has never been clear why Jamal, whose cab was parked nearby, happened to be around.)
When police arrived at the scene less than a minute later, the wounded Jamal -- sitting on the curb 4 feet from Faulkner, with his empty shoulder holster on and his empty gun nearby -- was the obvious suspect.
Cook was standing a few feet away against a wall, with what two witnesses called "a look of shock" on his face. He allegedly told police, "I ain't got nothing to do with it." (Cook was prosecuted only for slugging Faulkner; Jamal's lawyers and prosecutors agree that he did not shoot Faulkner.)
The main disputes are over who fired the two shots that hit Faulkner, and over when Faulkner shot Jamal, during the interval of a few seconds after Jamal began running toward the scene.
ACCORDING TO THE Prosecution's theory, Jamal ran up behind Faulkner "from ambush" to within about 1 foot, and shot him in the back. The wounded Faulkner returned fire, hitting Jamal in the chest, while falling onto his back. Jamal emptied his gun at his helpless victim's face at close range, finishing him off with a shot between the eyes.
It's a nice, clean theory, pointing to a clear legal conclusion: first-degree murder, which is capital murder in Pennsylvania when the victim is a police officer. If all one had to go on was the physical evidence (as it was presented to the jury) and the trial testimony of the three prosecution eyewitnesses, Jamal's guilt would seem established beyond a shadow of a doubt.
Cynthia White, a prostitute, swore that she had seen Jamal, with gun in hand, firing two shots at Faulkner's back; then Faulkner "turned around and staggered and seemed like he was grabbing for something, then he fell" ; and then Jamal was "standing over" the fallen officer firing "three or four more" shots into his face. Robert Chobert, a cabdriver, swore that he had heard a shot, looked up, and had seen Jamal firing down at the supine Faulkner. Michael Mark Scanlan, who had been out bar-hopping, swore that he had heard a shot while watching a dreadlocked black man (evidently Jamal) rushing at Faulkner with arm outstretched, as though pointing a gun; then the man had stood over Faulkner firing more shots.
"There's no question in my mind," says Jamal's trial prosecutor, Joseph McGill, "that Mumia Abu-Jamal viciously killed Officer Faulkner in the manner presented before the jury, and the jury agreed."
But the prosecution's theory begins to unravel when one studies the initial statements that these three witnesses gave to police on the morning of the shootings, and traces the dramatic changes -- all to the benefit of the prosecution -- in their accounts over the next six months, culminating in their testimony at trial. Still more doubt creeps in when one weighs the strong incentives that White and Chobert had to give police what they wanted.
The prosecution's theory is that Jamal shot Faulkner in the back before being shot by Faulkner. But review of all available evidence (much of which was not before the jury) suggests to me that Faulkner probably saw Jamal coming -- perhaps with gun in hand, perhaps not -- and may have fired the first shot. And other evidence suggests that Cook may well have had a passenger in his car, who jumped out and got away, perhaps after firing one or more shots at Faulkner.
The prosecution's theory -- and, probably, the reality -- is that it was Jamal who fired the fatal shot into the fallen Faulkner's face. But the testimony undergirding this theory was far shakier, less credible, and less consistent with the eyewitnesses' initial reports to police than the jury could have known.
Nor is the physical evidence conclusive, although it may have looked that way to the jury. There was no definitive match, for example, between Jamal's gun and the bullet that killed Faulkner. And police could have gone a long way toward establishing whether or not Jamal was the killer by testing his hands, to determine whether he had recently fired a gun, and smelling his gun barrel, to determine whether it had recently been fired. They did neither.
A CONCOCTED CONFESSION?
If the jurors had any doubts about Jamal's guilt after hearing from the prosecution's eyewitnesses, those doubts probably evaporated when they heard Jamal's "confession."
As he was lying on the floor of the hospital emergency room, near the police officer he was suspected of murdering, Jamal defiantly shouted: "I shot the motherfucker, and I hope the motherfucker dies.' He shouted it again a minute later. At least that was the testimony of Priscilla Durham, a hospital security guard, at Jamal's 1982 trial. Officer Garry Bell, Faulkner's former partner and best friend, swore that he heard Jamal shouting the same words.
Prosecutor McGill not only made powerful use of this alleged confession in his closing argument for a first-degree murder conviction; the next morning, in urging a death sentence, he stressed "the arrogance of an individual who defiantly will do it and then defiantly brag after it.'
But this was a most peculiar "confession," even putting aside the improbability that a man described by another prosecutor at this summer's hearing as "one of the smartest people I have ever seen" would so spontaneously and flamboyantly incriminate himself.
For although Jamal allegedly shouted it out while 15 or so police officers were grappling with him or nearby, and although most or all of these officers were interviewed over the next few days by homicide detectives seeking to build the strongest possible case against Jamal, not a word about this "confession" found its way into a single police report for more than two months.
Jamal's lawyers contend this "confession" was fabricated. And due to the ineffectiveness of Jamal's defense lawyer and the bias of Judge Sabo, the jury never heard the most exculpatory evidence: Officer Gary Wakshul, who was in the paddy wagon that took Jamal from the scene to Jefferson Hospital, reported later that morning that "we stayed with the male at Jefferson until we were relieved. During this time, the Negro male made no comments."
Did Wakshul just not hear Jamal's confession? Or did he step away for a minute and miss it? Or did he leave the hospital before Jamal uttered it? Nope. It turns out he heard the whole confession, loud and clear. At least, that's what Wakshul said in a new statement 64 days after the fact, on February 11, 1982, when questioned in a probe of Jamal's claim that police had beaten him.
Wakshul suddenly recalled there was this one little comment: "As he was placed on the floor [outside the hospital emergency room], and as I was standing back up, I did hear him say, I shot him. I hope the motherfucker dies.'" Asked by his interviewer to explain his initial report, Wakshul said that "the statement disgusted me, and I didn't realize it had any importance until today."
Didn't realize it had any importance? Wakshul's initial report had included far less important details, such as the exact times of Faulkner's radio dispatches. The idea that he had heard Jamal confess but hadn't bothered to report it is patently incredible.
LIKE WAKSHUL, OFFICER GARRY Bell made no mention of Jamal's "confession" in his reports in the days after the shooting. It was not until 78 days later that Bell says he "remembered" the confession. Bell explains he was "devastated seeing Danny with his face almost blown off," but not one of the other 15 to 20 other police officers with Jamal at the hospital ever reported hearing the confession.
Priscilla Durham first mentioned Jamal's "confession" to police investigators in a February 9, 1982, interview, 62 days after the shooting. It was not until yet another four months had gone by that Durham first claimed, in her June 24 trial testimony, that she had reported the alleged Jamal confession "the very next day" after the shooting to a hospital investigator, in a statement that he wrote down by hand. Prosecutor McGill, seemingly surprised, interjected, "I've never seen one."
Nor has one ever been produced, from that day to this. McGill sent word for the hospital to dig up this handwritten "statement," and while Durham was still on the stand there arrived in the courtroom an unsigned, unauthenticated, typewritten piece of paper, dated December 10, 1981.
Durham said that she had never seen this typed "statement" before, but that it was close to what she had reported to hospital investigators. "They took the handwritten statement and typed this," Judge Sabo helpfully conjectured. He then let McGill bolster Durham's credibility by reading key portions of this unauthenticated document to the jury.
Jamal's lawyers stress that Durham was a biased witness because she knew Faulkner and Bell, worked closely with police on a daily basis, and harbored hopes of getting a job as a police officer. Durham and Bell (like Wakshul) also undermined their credibility by denying that Jamal had been brutalized at the hospital, despite evidence (some of which the jury did not hear) suggesting that he was beaten in their presence.
Nor would this have been the first time that Philadelphia police cooked up a phony confession. "That's the kind of bullshit we see all the time," asserts John Packel, chief of the appeals division of the Defender's Association of Philadelphia. "Cops making up whatever they think will help, making up confessions, to get someone they think is guilty." In fact, police may have manufactured two Jamal confessions. Inspector Alfonzo Giordano reported later on the morning of the shooting that the handcuffed Jamal had confessed to him when they were alone in the back of the paddy wagon.
Giordano says he asked Jamal, "Where is the gun that goes into the holster?' and he stated to me, "I dropped the gun on the street after I shot him.'" The prosecution elected not to use this "confession," partly because of the risk of reversal on Miranda grounds.
But I think Giordano made it up. I think Jamal was telling the truth in an interview 11 weeks later, when he told Philadelphia Daily News columnist Chuck Stone: "I confessed? That's absurd. I do remember he [Giordano] called me a black motherfucker and hit me with a walkie-talkie." Giordano -- who pled guilty in 1986 to tax charges arising from his taking $57,000 in payoffs -- stands by his story.
EYEWITNESSES: A CABBIE WITH PROBLEMS
"Throughout this trial, whenever there was any testimony that was changed, it was always to the benefit of the commonwealth."
So said Anthony Jackson, the defense lawyer at Jamal's 1982 trial, while on the stand at this summer's hearing. The proof of his point lies in the remarkable evolution over time in the stories told by the three prosecution eyewitnesses who fingered Jamal as a cop-killer.
Consider cabdriver Robert Chobert.
It is undisputed that he was closer to the scene than the two other prosecution eyewitnesses, parked in his cab a car's length behind Daniel Faulkner's squad car, and some 50 feet from the shooting [see diagram, page 77]. He was writing up a fare when he heard the first shot and looked up. He had to look over or past Faulkner's car, with its flashing red dome light, to see the action, and saw the shooter only from the side.
And what about eyewitness Robert Chobert? His testimony was arranged most likely by Inspector Alfonzo Giordano. The official police photos, as well as Polakoff’s photos, show Chobert’s cab was not parked behind Faulkner’s squad car as claimed by Chobert and the prosecution. In fact, Chobert was driving illegally that night on a suspended license while on probation, after being paid to throw a firebomb into a grade school. During appeals, Chobert admitted that in exchange for his testimony, the prosecution said they would assist with his probation. What’s more, Chobert later admitted that he was parked elsewhere, and that his testimony was false.
-- Manufacturing Guilt, written & produced by Stephen Vittoria & Justin Lebanowski
Chobert testified at trial that when he looked up, he saw Faulkner fall; then saw Jamal "standing over him and firing some more shots into him."
"I know who shot the cop, and I ain't going to forget it," Chobert snapped at Jackson during cross-examination.
But Chobert's first recorded statement to police -- about which the jury was not told -- was that the shooter "apparently ran away," according to a report that morning by Inspector Giordano.
Giordano encountered Chobert upon reaching the scene about five minutes after the shooting: "[A] white male from the crowd stated that he saw the shooting and that a black MOVE member had done it and appearently [sic] ran away. When asked what he ment [sic] bby [sic] a MOVE member, the white male stated, 'His hair, his hair,' appearantly [sic] referring to dreadlocks. I asked him to step over to the rear of EPW #601 [the paddy wagon], the wagon crew opened the back door, the suspect was laying on his back on floor, the white male immediately stated, 'That is the man that shot the policeman.'"
The white male was Chobert. The dreadlocked suspect in the wagon was Jamal. And the problem with Chobert's first account was that if indeed the shooter "ran away" from the scene, then it would be hard to pin the crime on the critically wounded Jamal, who was found on the curb 4 feet from Faulkner, and who had not run anywhere, according to three other witnesses. (Giordano now says that "I don't doubt that this cabdriver saw somebody run away," but that it was not the shooter. The prosecution's theory, and Chobert's testimony, was that nobody ran away.)
Had Chobert gotten confused and misidentified Jamal as the shooter when he saw him in the paddy wagon, because of his race and hairstyle? (Cook had dreadlocks too, and a third man with dreadlocks escaped the scene, according to other witnesses.) Or what?
This account would have given the defense a good start at attacking the prosecution's case against Jamal, on the ground that Chobert's initial report showed that the shooter had escaped -- or, at the very least, that Chobert had no idea who the shooter was. But Chobert's story changed in each of his two subsequent police interviews, getting better for the prosecution each time.
At the homicide unit, less than an hour after his initial report to Giordano, Chobert signed a statement that "I saw this black male stand over the cop and shoot him a couple more times. Then I saw the black male start running towards 12th Street. He didn't get far, maybe 30 or 35 steps and then he fell. The cops got him and stuck him in the back of a wagon."
Chobert also told police that the dreadlocked shooter was "kind of heavyset. He was about 6 feet tall and he was wearing a light tan shirt and jeans."
THIS SECOND RECORDED Chobert statement still posed big problems. For one thing, while Jamal is over 6 feet, he was far from heavyset; he was lean, almost gaunt. And when arrested he was wearing not a light tan shirt, but dark clothes.
More important, if the shooter ran 35 steps (about 100 feet) toward 12th Street, the shooter wasn't Jamal, who sat down or collapsed on the curb 4 feet from Faulkner, and who, according to prosecution eyewitness Cynthia White, "didn't try to run or anything."
Three days later, in a December 12, 1981, reinterview, Chobert said that the shooter's shirt was "dark gray" -- not "light tan." And when asked (yet again) "how far did this man [the shooter] run," he revised 35 steps to "about a car length away," adding that then the shooter "just layed [sic] there by the curb, about 10 feet from the cop." Thus did 100 feet (35 steps) suddenly shrink to 10 feet, perhaps with a little coaching by police.
By the time of his June 19, 1982, trial testimony, Chobert was swearing that the shooter had not run at all: "I saw him walking back about 10 feet and he just fell by the curb."
Jackson stressed some of these discrepancies in cross-examination, but he didn't do it very well, and he didn't get the biggest discrepancy of all ("ran away") before the jury. This enabled prosecutor Joseph McGill plausibly to dismiss the discrepancies as trifling details.
And while McGill told the jurors they could "trust" Chobert, he didn't tell them -- and with Judge Sabo's help prevented the defense from telling -- that Chobert needed friends in law enforcement because he was, among other things, on probation for arson-for-hire.
"I threw a bomb into a school. A Molotov [cocktail]. I got paid for doing it," Chobert explained in chambers. Judge Sabo ruled the arson conviction inadmissible for purposes of impeachment on the ground that it was not "crimen filsi" -- a crime tending to show untruthfulness.
Nor was the jury told about Chobert's drunk driving record, which Sabo deemed inadmissible. Nor was the jury -- or the defense -- told that Chobert had been driving his cab with a suspended license the night of the killing; that it was still suspended at the time of the trial; that police had never given him any trouble about this; that (according to Chobert's testimony this summer) Chobert had asked McGill during the trial "if he could help me find out how I could get my license back" ; that McGill had "said he'll look into it" ; and that this was "important" to Chobert because "that's how I earned my living."
McGill never mentioned this exchange to the defense. He says now that the conversation probably occurred after Chobert testified.
TALES OF TWO PROSTITUTES
The only prosecution eyewitness who claimed that she had seen a gun in Jamal's hand at any time, and the only one who reported Faulkner grabbing at his side (for his own gun?) after being shot, and the only one besides Chobert who identified Jamal as the shooter, was the prostitute Cynthia White.
She told the jury she had seen the whole thing unfold while standing on the southeast corner of Locust and 13th Streets [see diagram, page 77]. That would put her about 80 feet from the scene and perhaps 30 feet behind Chobert's cab.
But White has more credibility problems than the average prostitute -- so many that it's hard to dismiss Jamal's lawyers' contention that her tale was scripted to please the police. Some evidence suggests she wasn't even there.
WHITE HAD AT LEAST 38 arrests on her record in Philadelphia, with three open cases awaiting trial there when she testified at Jamal's trial. She was serving 18 months for prostitution in Massachusetts at the time of Jamal's trial. The jury heard about all that. But Judge Sabo blocked proffered testimony from another prostitute, Veronica Jones, that might have cast even more doubt on White's credibility.
Jones had heard the shooting, but not seen it, while standing almost a block to the east, at Locust and 12th Streets, according to her December 15, 1981, statement to police. Called to testify (reluctantly) for the defense at Jamal's trial, Jones started to say something intriguing: Sometime after her December 15, 1981, statement, she had been locked up "for nothing," held for five hours, and pressed by police to say, "I had seen Mumia ... do it... intentionally." Prosecutor McGill cut Jones off with objections.
In a bench conference, Jackson said that Jones had told him that police "told her that if she would give a statement that backed up Cynthia White, they would let her work the street just like they were letting [Cynthia] work." At McGill's request, Sabo barred any such testimony as irrelevant, and struck the part that Jones had already blurted out.
White's account of the shootings, like Chobert's, evolved considerably after her initial police interview on December 9, 1981, as Jackson stressed in cross-examination. Police arrested her for streetwalking on December 12 and 17, and took the opportunity to send her up to Homicide to be reinterviewed each time. She was reinterviewed again on December 23.
In her first statement, the morning of the shooting, White said that the shooter was "short" with dreadlocks, and "came running out of the parking lot on Locust Street. He had a handgun in his hand. He fired the gun at the police officer four or five times. The police officer fell to the ground, starting screaming."
Problem: Jamal is tall (6 feet 1 inch). Cook is much shorter. Both had dreadlocks.
Bigger problem: Chobert and Scanlan, the third prosecution eyewitness, both told police that same morning that they had heard only one shot before Faulkner fell, and that the rest of the shooting had come as he was flat on his back.
By December 17, 1981, White had a revised version: "He pointed the gun at the police officer and shot him one or two times. Then the officer fell, and he went over and stood above him and shot three more times."
Also in her initial statement, White said that "there was no struggle" between Faulkner and the driver of the Volkswagen (Cook). Problem: Scanlan told police that he saw Cook slugging Faulkner, and then saw Faulkner beating Cook hard with a billy club (apparently it was Faulkner's flashlight).
Three days later, White amended her story, saying that "the driver of the V. W. struck the officer. The officer grabbed him and turned him around." At trial she said Cook had suddenly struck Faulkner "with a closed fist to the cheek." But she still swore that Faulkner had never struck Cook, and had nothing in his hands.
CREDIBLE BUT CONFUSED
Scanlan, the bar-hopping motorist, was the most credible of the three prosecution eyewitnesses. He saw the critical events a lot less clearly than Chobert and White claimed to have seen them. But his story also got better for the prosecution between his initial accounts to police and his testimony at trial.
Scanlan was headed east on Locust Street and stopped at the light on the west side of 13th, about 120 feet from the scene [see diagram, page 77] To see the shootings, he had to look past the corner where Cynthia White claimed she was, past Chobert's cab, and past Faulkner's squad car with its flashing red dome light. According to Scanlan's initial statement to police, Faulkner had "spread the guy across the car with his arms out, and the guy turned back around and swung at the officer. The officer pulled his billy club out and swung hard at the guy hitting him several times on the arm and back. "Then I noticed another black guy come running across the street towards the officer and the guy he was hitting. Then the guy running across the street pulled out a pistol and started shooting at the officer, the officer fell down. Then he stood over the officer and fired three or four more shots point blank at the officer on the ground."
While Jamal's lawyers don't dispute that Jamal was the man Scanlan saw running across the street, they do dispute that Scanlan saw Jamal shoot Faulkner in the back, or at all. And with good reason. For one thing, when Scanlan was asked by police at the scene to identify Jamal, he identified him as the driver of the Volkswagen -- not the shooter. For another, Scanlan then drew a diagram that clearly showed Faulkner facing Jamal as Jamal approached the scene. And in a police reinterview two days later, Scanlan muddied the waters even more.
First, Scanlan said he hadn't seen the man who ran across the street holding or firing a gun. Rather, he assumed that this man was the source of the first gunshot that he heard. Scanlan also noted: "I don't know if the officer fired his gun or not, I didn't see him pull his gun or fire it, I didn't know whether either of the males was shot or not, I was stunned."
Second, Scanlan told police in this reinterview that he had no idea which black male had fired the shots after Faulkner fell: "One of the two males was standing over the officer, I don't know which one it was, then I saw two or three flashes, and heard the shots, I saw the gun in one of the males' hand, but I don't know which male had the gun."
By the time of his June 25, 1982, trial testimony, however, Scanlan's account was less messy: He said that a man (concededly Jamal) had run at Faulkner from behind, and that "I saw a hand come up, like this, and I heard a gunshot. There was another gunshot when the man got to the policeman, and the gentleman he had been talking to. And then the officer fell down on the sidewalk and the man walked over and was standing at his feet and shot him twice. I saw two flashes."
"The man walked over and shot him twice"? Which man? How could Scanlan -- who had admitted on December 11, 1981, that he had no idea which man it was -- be sure in June 1982 that it was Jamal? In cross-examination, Scanlan indicated that he was not very sure: "There was confusion when all three of them were in front of the car."
WHAT REALLY (PROBABLY) HAPPENED
Jamal's lawyers theorize that Scanlan saw Faulkner facing Jamal as Jamal charged the scene; heard Faulkner shoot first at Jamal; mistakenly assumed that it was the other way around; and then saw someone standing over Faulkner and killing him -- the same someone who, according to Chobert's first statement, "ran away."
The prosecution's theory that Jamal fired the first shot, from within 12 inches, into Faulkner's back, depends on the assumption that the wounded Faulkner, while staggering and falling onto his back, with two assailants right on top of him, was able to pull out his gun, turn, and fire into Jamal's upper chest a bullet that lodged in his lower back. Also that Jamal passively waited with gun in hand for Faulkner to draw and shoot before continuing his assault.
IT'S POSSIBLE IT HAPPENED THAT WAY. But it's doubtful that it did -- especially since none of the prosecutions three eyewitnesses ever claimed to have seen Faulkner draw, aim, or shoot his gun, and only the less-than-credible Cynthia White claimed to have seen the charging Jamal, with gun in hand, shooting at Faulkner from behind.
The defense theory seems more plausible: "At that moment, Officer Faulkner faced a life-threatening situation. He had one suspect who allegedly struck him bent over the hood of a car with another individual running toward him. He was alone. It was 4 A.M. It was dark. The neighborhood was unsettling." So Faulkner shot Jamal first. And then Faulkner got spun around and shot in the back by Jamal. Or, as the defense claims, he was shot in the back by a man who ran away.
The who-shot-first question is important: A jury might find that even if the gravely wounded Jamal did shoot Faulkner, the circumstances warranted neither the death penalty nor, perhaps, a first-degree murder conviction, which requires proof beyond a reasonable doubt of malicious and unprovoked killing with "deliberation and premeditation."
The defense could argue: Here we have a 27-year-old man with no criminal record. He sees his beloved kid brother being brutally clubbed by a big police officer. He understandably rushes to his brother's aid, his gun in its holster. The officer turns and shoots him in the chest, nearly killing him. He is racked with pain and shock. Even if you believe that he then shot the officer, it was surely in self-defense, or defense of his brother, or at worst manslaughter, committed after grave provocation and in the heat of passion.
The prosecution could, of course, counter that the execution-style fatal shot, with Jamal standing over his helpless victim, was first-degree murder punishable by death no matter who fired the first shot. But a verdict of manslaughter would be a real possibility, especially if any juror had even a scintilla of doubt as to who fired that fatal shot.
Jamal's lawyers say that if they win a new trial, they're after an acquittal, not just a manslaughter conviction. And to that end, they have taken aim at another key element of the prosecution's case: the theory that Jamal must have killed Faulkner because nobody else but Cook was at the scene.
No fewer than five eyewitnesses (including Chobert) have made statements at one time or another that support the defense theory that someone ran away from the scene. These accounts also raise at least a suspicion that police were so bent on nailing Jamal that they may have shunted aside, or even suppressed, evidence supporting this defense theory.
The most important of these witnesses, and the only one whom the jury heard saying that someone escaped the scene, was a part-time college student, Dessie Hightower. He has consistently and credibly stuck by the story he told police 80 minutes after the shootings: that he saw a man (or possibly a woman) about 6 feet tall, who looked "Jamaican" from behind (meaning that his hair was in dreadlocks or braids), "run from the scene of the crime" before police arrived.
Hightower's initial account posed a problem for police. He was called in for a reinterview six days later, on December 15, 1981. It lasted almost six hours. He told the same story, adding details about what happened after police arrived: Several officers had kicked and beaten Jamal, and had banged his head against a pole while dragging him to the paddy wagon by his dreadlocks. (Police admitted at trial that they banged his head against a pole and dropped him on his face, but claimed these were accidents.)
In the middle of this reinterview, Hightower was asked to take a polygraph test. (None of the prosecution witnesses was asked to do this, despite White's and Chobert's criminal records.) Hightower did so, and was told he had passed, he claims. But prosecutors at this summer's hearing produced a typed police report, dated 12 days after the polygraph test, purporting to show the opposite. The report says that Hightower was told that there was "deception indicated" when he denied "know[ing] for sure who killed Pol. Faulkner" ; when he denied "see[ing] Pol. Faulkner killed" ; and when he denied "see[ingj Jamal with a gun in his hand."
This report is puzzling in at least two respects. First, it indicates that the polygrapher asked Hightower questions wildly out of sync with police reports of his prior interviews, in which he said he did not see the shootings because his view was blocked by a wall at that moment. Second, the report indicates that the polygrapher did not ask Hightower anything about the important subject on which his prior interviews had focused: his claim that he had seen someone running away.
WHAT KIND OF GAME were the police playing with this exculpatory witness? Aside from Hightower, the prostitute Veronica Jones told police (but not the jury) that after Faulkner fell, "I saw two black guys walk across [the] street and then they started sort of jogging." Two black guys jogging: that matches Chobert's (second) December 9, 1981, report, which says he saw the shooter and another black man running. Cook, perhaps -- and who?
Taking the eyewitness evidence as a whole, it seems more likely than not that somebody had been in Cook's car with him and had run away before police arrived. It's also at least conceivable that this mystery man killed Faulkner.
That, in fact, is the sworn testimony of one William Singletary, a new witness who contacted Jamal's lawyers in 1990 and testified publicly -- if not very credibly -- for the first time at this summer's hearing.
WITNESS: ABU-JAMAL DIDN’T SHOOT FAULKNER
William Singletary, a local businessman, said he was standing on a nearby street corner and witnessed the shootings. Immediately after, he tried to give his statement to police that Abu-Jamal arrived after Faulkner was already shot. Homicide detectives interrogated and threatened Singletary with bodily harm, as well as the trashing of his business, if he testified in favor of Abu-Jamal. And then Abu-Jamal’s brother, Billy Cook, later swore that his business partner, Ken Freeman, was in the car with him, and participated in the shooting of Faulkner.
-- Manufacturing Guilt, written & produced by Stephen Vittoria & Justin Lebanowski
Another less than credible new defense witness this summer was Arnold Howard, a lifelong Jamal acquaintance with forgery and burglary convictions on his record. He provided the identity of the mystery man who allegedly was in Cook's Volkswagen and escaped the scene: Kenneth Freeman, Cook's (now deceased) partner in a vending stand a few blocks away.
In an affidavit, Howard swore that Freeman "told me he was driving [Cook's] Volkwagon [sic]" when Faulkner stopped it.
As explained in a recent interview, [J. Patrick] O'Connor argues that the actual shooter was a man named Kenneth Freeman, who was Billy Cook's business partner and who O'Connor argues was a passenger in Cook's car when it was pulled over by Officer Daniel Faulkner the morning of Dec. 9, 1981. Freeman was mysteriously found dead in a Northeast lot (reportedly naked, gagged, hand-cuffed, and with a drug needle in his arm) the day after the infamous May 13, 1985 police bombing of MOVE, leading O'Connor to conclude that "the timing and modus operandi of the abduction and killing alone suggest an extreme act of police vengeance." ...
"They arrested me for assaulting him, but I never laid a hand on him. I was only trying to protect myself," says Cook, who also reports that before he was beaten bloody with the police flashlight, Faulkner "was kind of vulgar and nasty. And if I remember correctly he threw a slur in... 'Nigger' get back in the car."
-- Mumia Abu-Jamal Faces US Supreme Court as New Book and Film Expose Injustice, by Hans Bennett