Executing Justice: An Inside Account of the Case of Mumia

Executing Justice: An Inside Account of the Case of Mumia

Postby admin » Tue Jun 09, 2015 1:03 am

EXECUTING JUSTICE: AN INSIDE ACCOUNT OF THE CASE OF MUMIA ABU-JAMAL
by Daniel R. Williams
Defense Lawyer and Chief Legal Strategist for Mumia Abu-Jamal
© 2001 by Daniel R. Williams
Title page photograph © Jennifer Beach

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.


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To my mother, who traveled a rough road so that I might have a smoother ride

Table of Contents:

• Foreword by E.L. Doctorow
• Introduction: The Problem of Ambiguity
• One: Good Versus Evil
o 1. The Killing
o 2. An Open-and-Shut Case
o 3. The Source of Good and Evil
o 4. Constructing Good versus Evil
o 5. The Struggle for Money
o 6. Seeds of Rebellion
o 7. Jury Selection
o 8. Race and Death Penalty
o 9. Flowering of Rebellion
o 10. Priming for Death
o 11. Deciding on Guilt
o 12. Deciding on Death
• Two: Reconfiguring Good Versus Evil
o 13. A New Team, a New Portrait, and an Old Judge
o 14. Revisiting the Past
o 15. Attacking the Open-and-Shut Case
o 16. Fighting Ideology
o 17. Confessing to Lies
o 18. Ambiguity Revisited
• Appendix
• Acknowledgments
• Notes
• Index
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:05 am

FOREWORD

As I write, Mumia Abu-Jamal is in his eighteenth year of solitary
confinement on death row in Pennsylvania's State Correctional Institute.
He was tried, convicted, and sentenced to death for the shooting
murder of Philadelphia police officer Daniel Faulkner. His appeals
have all been rejected by the Pennsylvania state court system. His
lawyers are now engaged in a last attempt to overturn the conviction
by bringing their case to Federal Court in Philadelphia.

The trial of this black journalist and activist has attracted worldwide
attention. The thirty-eight members of the Congressional Black
Caucus have called for a new trial, as have several European governments,
political figures such as the Reverend Jesse Jackson, labor unions,
and ad hoc committees of writers, performers, and university
professors. The scrupulous human rights organization Amnesty International
has described Mumia's trial as a travesty and listed him in
their registry as a political prisoner. There are so many issues of
dubious police behavior, judicial impropriety, and apparent prosecutorial
misconduct attached to this case as to have established a
clear moral imperative to reconsider the entire basis of the case against
Mumia. Yet the Philadelphia Brotherhood of Police, elements of the
local press, and what appears to be the entire political establishment
of Pennsylvania is unrelenting in its insistence that he be executed as
a proven cop killer.

Mumia Abu-Jamal was defended by a court-appointed lawyer who
did not wish to defend him and was unprepared to do so: Mumia
was denied the right to defend himself and excluded from the courtroom
for crucial portions of his trial; a jury was picked with blatant
efforts to eliminate blacks from the panel; the pivotal prosecution
witnesses, one a paroled offender, the other a prostitute with bench
warrants against her, and thus subject to police intimidation, offered
damning testimony at the trial that contradicted what they had said
the night of the officer's death; second-thought testimony by a patrol
officer friend of the victim offered months after he made his original
statement was admitted in evidence; a crucial defense witness, another
policeman, was made unavailable for the trial; and the trajectory of
Mumia's own bullet wound from Officer Faulkner's gun did not accord
with the prosecution's scenario of where he was standing when
he and the police officer were supposed to have exchanged fire.

As a black radio journalist critical of the police and sympathetic
to the beleaguered black MOVE communalists subsequently bombed
out of their Philadelphia enclave, Mumia was not unknown to the legal
establishment. He had belonged to the Black Panther Party as a
teenager, a fact duly recorded by law enforcement and used by the
prosecution to represent that this man who had never been known to
commit an act of violence in his life was motivated to murder policemen
by virtue of his radical beliefs. Two more contextual matters
must be noted: that the trial judge, Albert Sabo, had sentenced more
convicted defendants to death-most of them black men-than any
other judge in the country; and that there existed at that time in the
Philadelphia Police Department a culture of racist brutality and corruption,
since documented by the district attorney's office, which
found, among other lawless activities, the routine subornation of perjury
to secure conviction of defendants whom the police knew to be
innocent.

None of this, of course, is proof of Mumia's innocence. Yet it
does suggest the need for careful examination of the trial and posttrial
record in the presumption that a capital case above all others
must be made with the most painstaking attention to the highest
standards of American law. I believe the present work by Daniel R.
Williams, an attorney and a member of the defense team attempting
to win Mumia a new trial, offers both those who believe in Mumia's
innocence, and those who are just as passionately convinced that he
is guilty, the opportunity to test their beliefs against the thorough
account of the whole sad story, presented in these pages, beginning
on that terrible December night in Philadelphia when, at 4:00 A.M.,
a young and conscientious police officer was mercilessly gunned down
in the street.

One would expect a defense attorney to tilt his story in his client's
favor. While there is no doubt in Mr. Williams's mind that his client
is innocent, what he is concerned to show here is not one man's
innocence of the charge against him, but, in all its details, the nature
of a juridical event. The surprise here is how honest, how forthcoming,
and at points how confessional this account is as it takes us step by
step through the original trial and the appellate procedures since then.
We are shown once again the painful truth that the magisterial body
of law central to our national identity can be brought to its knees by
the demon inadequacies of human character. All trials generate competing
narratives that are in many respects extra-legal. The case is made
from evidence, yes, but also from interpretive ascription, the prevailing
politics of the legal establishment, tabloid sociology, the jury's inferences
from courtroom behavior, and the performance powers of attorneys.
Trials can be marred by stereotypical thinking; they can be
shaped by the careerist self-interest of prosecutors and a defendant's
lack of financial resources; they can fall prey to the intellectual insufficiency
of judges-they are vulnerable to every one of the monumental
number of failings of our human nature that regularly satirize
the idea of justice.

The thrust of Me. Williams's book is judicious. He can be as
critical of his client's courtroom conduct as he can of the behavior of
the judge. He is as honest in his opinions of his colleagues at the
defense table as he is of the state's attorneys. He is as sensitive to the
terrible years of pain and anguish suffered by the slain officer's family
members as he is to a man's state of mind who has lived alone in a
cell under a death warrant for eighteen years.

During the course of those eighteen years the passions of Mumia's
supporters and his detractors have only increased in intensity. On both
sides the rhetoric is enraged, the "paid-for" ads hyperbolic, the rallies
loud and defiant. The cause in the name of Mumia's innocence has
attracted organizations from the margins of American politics. Establishment
media derive from this fact the likelihood of his guilt; he is
discredited by the people who support him, even as they are discredited
by whom they support. The cause in behalf of Mumia's guilt and
the need to execute him and bring closure to the case is spearheaded
by the Philadelphia Brotherhood of Police, and has generated advertising
income from police associations across the country. At neither
extreme can there be a legal certainty to match the righteousness. It
has been difficult to articulate the unresolved prior issue, which is not
this defendant's innocence or guilt but whether the trial that put him
on death row rose to the level of basic standards of American justice.

That is the issue this book addresses. I hope it will attract enough
honest readers from both sides of the dispute, those who have not
taken the trouble before this to acquaint themselves with the legalities,
the personalities, and the crucial turnings of the case. Even the bereaved
family of the slain officer has to understand that unless a man
is found guilty beyond a shadow of a doubt, there can be no true
closure. And we all have to understand that every time a judge enters
the courtroom and calls for a capital case to be heard, the law as well
as the defendant is put on trial.

-- E. L. DOCTOROW
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:05 am

INTRODUCTION

The Problem of Ambiguity


During the past ten years, Mumia Abu-Jamal has become the most
recognized-dare I say, celebrated-death row inmate in the world.
His incarceration on Pennsylvania's death row, since his conviction in
1982 for the shooting death of a young Philadelphia police officer,
has become a flashpoint for a revived and flourishing death penalty
debate in this country. The New York Times recently called him "the
new face of the death penalty debate." He is for many progressives,
political radicals, and students worldwide something much more potent-
a symbol of, among other things, a disturbing phenomenon:
the metastasizing prison-industrial complex that reminds us that an
omnipresent racial polarization still grips our society. Songs, poems,
and stories have been written about, or have been inspired by, him.
He has spawned sundry tabletop merchandise: tote bags, whistles, candles,
mouse pads, T-shirts, compact discs, etc. He has become the
latest incarcerated cause celebre among the artistic, intellectual, and
chattering classes in our media-crazed society. Some claim, with both
delight and dismay, that he is a product of the burgeoning Internetthe
first Internet political prisoner.

No doubt Mumia has done much to attract attention to himself.
He has done so, not by cheap theatrics but by the sheer force of his
intellect and his passion to speak for those who are largely ignored in
the tumult of our "wired" culture. He has written three heartfelt, and
critically well received, books. He has issued biting commentaries in
numerous publications (including the Yale Law Journal, one of the
most selective venues in academe). His trenchant oral recordings about
living a life on death row, awaiting state-sanctioned death, were approved
for airing on National Public Radio, until outcry among law
enforcement groups and conservative politicians intimidated NPR into
changing its mind. Television programs, airing on such national venues
as HBO, the A&E Network, and ABC, have offered various analyses
of the case.

The attention on Mumia's case will only intensify as it moves
further down the corridors of the judicial system. Either he will be
executed or he will be given a new trial. Either way, there will be
much noise and clamor.

I am one of Mumia's attorneys, and I have been involved in the
case since 1992, a full decade after his conviction. When I agreed to
join the defense team, at the request of my mentor and friend, Leonard
Weinglass, I had no idea that Mumia's case would become what
it is today: a lightning rod of controversy amidst a broader controversy
that is escalating (and will continue to escalate) over the use of
the death penalty as a so-called "law and order" tool. Len and I, with
the aid of other lawyers, law students, and activists, have dissected
the prosecution's case against this famed death row inmate to perform
a legal autopsy of sorts. We were not involved in the trial or
original appeal of Mumia's conviction. The case was over, as far as
the authorities in Pennsylvania were concerned, when we stepped in
a decade after the trial to perform that autopsy-that is, to determine
whether Mumia's guilt and punishment had been appropriately and
justly adjudicated. What we found is laid bare in the pages that
follow.

***

Cornel West, a leading public intellectual (a rare breed today), has
asserted without equivocation that Mumia is "unjustly imprisoned for
a crime he did not commit." One can only be struck by the boldness
of those words from an academic not otherwise prone to political
sloganeering. West's bold proclamation of Mumia's innocence may be
among the most audible, by virtue of his stature as a credible and
respected public intellectual, within a chorus of similar proclamations
by many other notables (such as Alice Walker, Ossie Davis, and Angela
Davis). But it is part of a chorus nonetheless.

There are others, however, who proclaim with equal adamancy
that Mumia is a cop killer-and an unrepentant one at that. They
have the argumentative upper hand insofar as he has been found guilty
by a jury, a verdict twice upheld by the Pennsylvania Supreme Court.
The strength of the anti-Mumia position rests on the presumption,
which most Americans accept as akin to religious dogma, that our
judicial system is the envy of the world. That presumption comes
under scrutiny in this book, but for the moment I wanr to say that
it would be unfair to dismiss those who seek Mumia's execution as
evil persons who secretly desire the killing of an innocent man. Rightly
or wrongly, informed or not, those pushing for execution genuinely
believe Mumia is a cop killer.

And then there are those in the middle: agnostics in what has
rapidly grown into a holy war. Actors Ed Asner, Mike Farrell, and
Alec Baldwin are the most visible exemplifications of this position.
Mumia may very well be guilty, the agnostics argue, but who is to
say? There has been no legitimately fair proceeding to adjudicate his
guilt. His trial was a travesty, a besmirchment and stain on "American
justice." He deserves a new trial.

Because I am a lawyer for the defendant, it would be expected
that I would proclaim my client's innocence, and I do. But a lawyer's
proclamation of his client's innocence is understandably met with
skepticism. The interesting question, to me, is not whether I or any
lawyer or celebrity believes in Mumia's innocence. It is the proclamation
itself that intrigues me. After all, people proclaim Mumia's
innocence at the same time that they (rightly, in my view) denounce
his trial as a farce and demand a new one. But without a genuinely
fair trial where all of the evidence is presented and tested, what substance
is there to a proclamation of innocence-or of guilt, for that
matter?

Cornel West's assertion, like the assertions by others, that Mumia
is innocent of the shooting death of a police officer back in December
1981, it seems to me, reflects both an ideological stance and an expression
of faith. It is an ideological stance insofar as those who are
willing to embrace Mumia as a factually innocent man are, by and
large, persons with a certain (but not necessarily homogenous) political
outlook who view Mumia's case as part of a larger ideological struggle.
It is an expression of faith, at its core, because it derives from the
belief that a man as articulate, as compassionate, as committed as
Mumia is to the lost and forgotten souls in the world cannot be guilty
of a cold-blooded murder. It is an assertion that seemingly precludes
even the notion that life and human beings are complicated enough
to allow that Mumia's guilt can coexist with his sincere and deeply
committed allegiance to social justice.

The agnostics in this jihad over Mumia's fate add a sobering message:
we who believe in Mumia's innocence can only insist upon a
process that allows for our faith to be tested. If it can be proven that
Mumia has not been accorded a trial process that inspires confidence
in the jury's verdict, then the pro-Mumia forces will have the moral
authority to insist that those who seek his execution be equally courageous
and put their faith in that same crucible of adversarial testing-
a crucible we conventionally call a fair trial. Remember: it is the
crucible itself, and not what we put in it, that expresses most fully
our societal values.

***

In the end, it seems to me that the polar extremes shouting at
each other in this raging battle speak from deep reservoirs of pain,
anger, and fear. The widow of the slain officer understandably insists
that the original jury verdict in 1982 should be respected and
carried out, as she no doubt needs to believe that it conclusively
resolved the issues relating to her husband's untimely and violent
death. It is worth taking a moment to reflect on her pain, and to be
sensitive to how the intensity of interest in Mumia's case must hurt
her, as well as the other family members and friends of the slain officer.
Convictions assuage the hurt of crime victims and those close to them.
Ambiguities, unresolved crimes, however, act as anticoagulants, interfering
with the healing of open psychological and emotional wounds.
People who find themes of "law and order" more compelling than
calls for social justice have their own fears, born of insecurities that
their values and hard-earned possessions are threatened by those who
have different visions of what is socially and economically possible in
America. Those fears find expression in angry calls for harsh punishment
and state-sponsored killing; the venom of "Let Mumia Fry" must
be understood as anger concealing fear. The eye-opening truth is that
America is filled to the brim with such fearful people. Just listen to
the anti-crime, pro-death penalty rhetoric of politicians. I defYanyone
to demonstrate that political discourse on crime and punishment, especially
discourse on the death penalty, is anything but histrionic,
demagogic, and fear driven.

Those who proclaim Mumia's innocence, many of whom are
members of historically oppressed groups or are politically allied with
such groups, also speak from pain found deep in the wells of their
experiences. Cornel West, Alice Walker, and other progressive intellectuals
and writers rightly admire Mumia for his ability to draw such
groups and people together. He is able to do this in part because of
his enormous vocal and literary gifts. But he builds bridges and forges
bonds among people from within death row primarily because his
writings are dedicated to the pains and sufferings of the struggling
poor and dispossessed who are ever-increasingly becoming downtrodden
in this world of escalating stock values and Internet millionaires.
The struggle waged on Mumia's behalf, though on the surface
prompted by strong feelings that his trial was unfair or that he is
innocent, is perhaps more profound than most other struggles waged
for the unjustly convicted. This is true, in my estimation, because this
struggle to "Free Mumia" seemingly allows for the ventilation of the
pain and suffering of the struggling poor and dispossessed-the voiceless,
as Mumia's supporters would say.

It is precisely this-Mumia's heartfelt allegiance to social justice,
genuine human connectedness, and fundamental morality-that calls
attention to something more intriguing in West's proclamation of
innocence. He makes it in the context of praising Mumia as a man
with an intact, evolved, and flourishing soul living in a place that
human beings have constructed to starve and ultimately destroy the
soul. Mumia is a voice, West observes, that forces us to confront the
demons immanent within "our capitalist 'civilization' [which] is killing
our minds, bodies and souls in the name of the American Dream."
What is intriguing is that Mumia, with his indestructible soul, represents
the dark side of the American Dream for those who look to
him as a symbol in the struggle for political and social justice, just as
he is such for those who want him dead. That's the ambiguity of
Mumia Abu-Jamal.

Ah, ambiguity. West's proclamation begs the question: is Mumia's
stature as a writer, the "truth" of his message, unworthy of attention
if he is guilty of firing a bullet into the brain of a young police officer?
Does guilt for such an act necessarily muffle this voice for social justice?
Or can such a guilty man nonetheless still speak to us, clearly
and credibly? Indeed, even if his guilt somehow justifies extinguishing
his right to remain alive, does it extinguish the worth of his message?
In short, does Mumia's worthiness as a voice for the voiceless depend
upon his innocence? If so, why?

These are questions that no one, so far as I can tell, bothers to
ask. So the answers lie hidden somewhere in the universe, probably
to be discovered when historical distance permits greater objectivity.
In a narrow, legalistic sense, these questions are irrelevant to the arduous
task that I and others have before us in our quest to win Mumia
a new trial. But it is fair to consider, given that Mumia's case confronts
the inscrutable connection between life and death, what Mumia's predicament
might say to us about our human existence. I wrote this
book in that spirit.

-- DANIEL R. WILLIAMS

DECEMBER 2000
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:06 am

To assert in any case that a man must be absolutely cut off from
society because he is absolutely evil amounts to saying that society
is absolutely good, and no one in his right mind will believe
this today.

-- ALBERT CAMUS


ONE: GOOD VERSUS EVIL

Once again, the venom of hatred and
disdain for the law enforcement profession
has vented its ugly anger on one of
Philadelphia's finest.

-- STATEMENT BY THE PHILADELPHIA
CHAPTER OF THE FRATERNAL
ORDER OF POLICE, DECEMBER 9, 1981


1. THE KILLING

A body in a blue police uniform lay still on the sidewalk. A
few feet away, slouched on the curb near the front bumper of
a parked car, was a black man with dreadlocks, bleeding with a gunshot
wound to his chest, his right arm stretched across his torso, his
legs protruding into the street but lazily bent at the knees, his whole
body listless. An empty .38 revolver with a two-inch muzzle was just
beyond his reach to his left. The body in the blue uniform had belonged
to twenty-five-year-old police officer Daniel Faulkner, or just
plain Danny, as his friends and family knew him.

Earlier that morning, on December 9, 1981, a minute or two shy
of 4:00 A.M., someone fired a bullet into Officer Faulkner, striking
him between the eyes as he lay helpless on the cold pavement. For
some, the crime never was a mystery. The twenty-seven-year-old
dreadlocked black man, Mumia Abu-Jamal, found at the crime scene
wearing a gun holster and sitting on the curb within inches of the
alleged mutder weapon, was not simply an obvious suspect; he seemed
to be the only one who could have committed the crime. But for
others who knew the young and talented journalist, the de facto
spokesperson for Philadelphia's disenfranchised minorities, it was incomprehensible
that Mumia-that is what most people called him,
just Mumia-would even be capable of perpetrating such a monstrous
act. The crime was more than just a murder mystery; it was an opportunity
to silence the man people had begun to dub the voice of
the voiceless.

***

Thirteenth and Locust Street was, at the time of this crime, part
of Philadelphia's red-light district, a neighborhood that came alive
after midnight with prostitutes, lost souls, and nighttime carousers. At
3:54 A.M., patrol car 612, with its twirling red dome light, was parked
at a curb on Locust Street about a quarter of a block east of the
Thirteenth Street intersection. An old beat-up blue Volkswagen, license
plate dangling, was parked at the curb in front of the police car,
in full view of Officer Faulkner as he sat peering through the windshield,
the hand-held police radio up near his mouth. Two cars on a
city street, one suggesting disorderliness situated in front of another
that spoke bluntly of "law and order." By the looks of it, Officer
Faulkner was in the midst of an ordinary traffic stop.

The central dispatcher heard Officer Faulkner's routine notification
over the police radio-"This is patrol six-twelve. I have a car
stopped at Twelfth, uh, Thirteenth and Locust" -and dutifully put
out the call for a backup. Officer Faulkner was about to step out when
he looked around to gauge what risks were involved. He didn't have
a partner cruising patrol with him, so he was particularly cautious
about his actions. Something-it is unclear what-told him that a
backup unit was not enough. He contacted central dispatch again.

Officer Faulkner, tall with dark hair and eyes and a slap-your-back
friendly disposition, was five years into his work as a Philadelphia
police officer. He had joined the force after a brief stint in the army
upon graduating high school. He left his modest row house in the
Eastwick section of southwest Philadelphia to begin his night shift at
11:30 P.M., after having spent some time at his dining room table
paying bills. His house was in the midst of renovations and the bills
were mounting. Money was tight, but he and his young wife, Maureen,
didn't have any children-not yet, at least. Mauteen knew that
when they did, Danny would be a good father. She could tell by the
way he loved to play baseball with the neighborhood kids during the
summer. But why rush? They were still young and happy to enjoy life
alone together for a while. They had a ski trip lined up for after
Christmas, and a cruise to Bermuda in the spring.

One of seven children born into a working-class family, Faulkner
was going to celebrate his twenty-sixth birthday on December 21,
twelve days away. He was planning on taking the detectives exam over
the upcoming weekend and was confident he would score well. He
seemed to have a knack for police exams and had a penchant for
discipline. He was proud of the fact that he had finished second in
his class at the police academy. He was also intent on finishing up
the last few credits for his associates degree at Philadelphia Community
College. It wouldn't be exactly right to say that Danny Faulkner
was ambitious. His life had always been lived on a small canvas. It's
just that he was committed to making the most of it. Maureen loved
that about him.

It was approaching 4:00 A.M., and Officer Faulkner spoke into
the radio for the last time. He usually wore a bulletproof vest underneath
his perfectly pressed uniform, but Maureen noticed that he
hadn't put it on that night. Strange, she thought momentarily, before
falling asleep. "On second thought, send me a wagon at Thirteenth
and Locust," Faulkner muttered quickly. The request for a "wagon"
meant he was intent on making an arrest, and he didn't want to be
alone-not at this hour of the night, and not in this part of town.

Officer Faulkner stepped out of the patrol car, scanned the area
again, and put his hat on. No one would have faulted him ifhe hadn't
put his hat on. Many, maybe even most, Philadelphia patrol officers,
deep into their night shift, dispense with the formality. But not Officer
Faulkner. He insisted on the hat, just as much as he insisted on polished
shoes and a pressed uniform.

Danny Faulkner had less than two minutes left in his life. Soon
he would be lying face up on that cold, dingy pavement, lifeless, with
a bullet in his brain.

***

It didn't take long for Locust Street to be bristling with activity.
The night had been punctured with short, crackling, violent bursts of
sound. Those who heard the crisp explosions-was it four, maybe five
jolts of sound? bystanders just couldn't seem to remember-knew
instantly it was gunfire. Homicide detectives, crime scene investigators,
patrol officers, police photographers, curious onlookers, and several
witnesses to various aspects of the "incident," hovered around the
bloodstained asphalt. The dead police officer, found lying on the sidewalk,
was immediately taken away to nearby Jefferson University Hospital,
with the hope that somehow he could be revived. It wasn't until
all the commotion died down that someone picked up Faulkner's hat
from the street. The hat, unlike everything else, was still in perfect
condition-and it remained so for a jury to see seven months later.

Mumia Abu-Jamal, too, was taken to Jefferson University Hospital,
but not before, according to court witnesses, his head was
rammed into a light pole and his body kicked and punched by infuriated
police officers summoned to the scene. Mumia could never
have guessed that the evening would devolve into this. He had had
an enjoyable dinner with friends, among them a journalism colleague
and a local politician, before getting into his cab to earn some badly
needed money. His journalism career was at a crossroads, and he was
moonlighting as a cab driver to support himself and his wife and
children while trying to reassert-perhaps rediscover-his identity as
a journalist. Some reporters on the city hall beat had been whispering
that Mumia's marriage was on the skids and that he had begun to
lose his objectivity as a reporter. But now, his entire life was derailed,
as he lay on the hospital bed, handcuffed to the railing, looking up
at his older sister, Lydia.

Mumia had refused medical treatment when the police, as they
put it, "deposited" him on the emergency room floor. When family
members appeared at the hospital, they urged him to accept treatment
while trying, amidst the bedlam, to grasp what had happened. Mumia
finally agreed. Emergency room surgeons operated for two and a half
hours to repair damage caused by a bullet later discovered to have
been discharged from Officer Faulkner's police-issued revolver. The
police simply "knew" that Mumia had shot the officer. But how had
Mumia been shot? None of the witnesses on the scene could say.

The question of how Mumia had been shot-at what point during
the few seconds of the incident-would be a mystery that would
plague the entire case, and in the end, may hold the key to his exoneration.

Lydia was with him when the anesthesia wore off. Mumia motioned
for her to come nearer. His voice had always bespoken his
strength, even in childhood; bur now it was only a whisper. Come
nearer, he gestured again. "I didn't have anything to do with it. I'm
innocent." Lydia nodded and squeezed his hand.

Maureen never had a chance to exchange whispered words with
her husband at the Jefferson emergency room. Danny Faulkner was
pronounced dead at about 5:00 A.M., bur in reality, he died instantly
once the bullet struck him between the eyes, penetrated his skull, and
then obliterated his brain.

The new mayor, William J. Green III, and other city dignitaries
would come to the hospital later in the morning, designated by the
Commonwealth to vent the city's anger over a senseless attack on that
thin blue line that separates law from disorder. They would join
Danny Faulkner's young widow at the hospital as she attempted to
grasp what had happened.

The president of Lodge No.5 of the Fraternal Order of Police
quickly issued a statement: "Once again, the venom of hatred and
disdain for the law enforcement profession has vented its ugly anger
on one of Philadelphia's finest." Mayor Green ordered the city to
lower flags at half-staff for thirty days, as "Philly's finest" wore black
ribbons on their badges. Faulkner was the second cop killed in the
line of duty that year. More than five thousand people, including the
mayor and virtually every municipal leader, turned out for the memorial
service at St. Barnabas Roman Catholic Church in southwest
Philadelphia. Even the voluble and controversial ex-mayor, Frank
Rizzo, appeared, but remained uncharacteristically silent in the face of
news cameras and a phalanx of journalists beckoning him to give one
of his trademark invectives.

Danny was supposed to go deer hunting the day he was buried,
a friend of his reflected, eyes moistened with emotion as the two
hundred cars in the motorcade passed by.

For the next seven months, the killing of Officer Daniel Faulkner,
and the life and times of the presumed killer, would be fixtures in the
local papers and television news broadcasts. There would be much
hand-wringing over how it could be that a gifted journalist, a passionate
spokesperson for the poor, with no criminal past and a
reputation as a gentle man, could find himself accused of such a vicious
murder.

In racially polarized Philadelphia in 1981, a black man with dreadlocks
was immediately looked upon as an enemy of the police. Philadelphia
was the home of the radical MOVE organization, a group
evoking bemusement among many, but vitriol among police officers
who still remembered a killing of one of their own in a police siege
upon a MOVE compound in 1978. Mumia had been raising eyebrows
for the past three years among journalism colleagues, the public, and
the police, because of his outspoken support for MOVE members,
whom he felt were the latest victims of police brutality in a city that
Mayor Rizzo had nourished with police-state methods. Mumia had
never kept to himself his affinity for MOVE's spiritually based back-to-
nature tenets. It was obvious to the arriving police officers, even
before an investigation was launched, that Mumia had vented his rage,
which was MOVE's rage, against authority by mercilessly killing Officer
Daniel Faulkner.

There would be a trial. But for the police that night, a trial was
nothing more than an unpleasant detour on the way to extracting the
ultimate revenge for this malicious cop-killing. Executing justice was
all that remained.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:08 am

This was a clear-cut case ... the strongest I've
ever prosecuted.

-- PROSECUTOR JOSEPH MCGILL


2. AN OPEN-AND-SHUT CASE

Mumia Abu-Jamal was indicted for the shooting death of P.O.
Daniel Faulkner, and arraigned within a week of the crime on
the charge of murder in the first degree (along with a weapons possession
count) from his hospital bed, where he was recuperating from
the gunshot wound received from the slain officer's revolver. With no
clear idea how Mumia was shot, investigators would endeavor to develop
a theory to explain it. By the time of the arraignment, the
Philadelphia court system had appointed Anthony Jackson, a solo
criminal defense practitioner, to represent the "indigent defendant."

If Jackson thought that this high-profile murder case would be a
career maker for him, he couldn't have been more wrong. Prosecuting
the case was Assistant District Attorney Joseph McGill, an experienced,
aggressive and highly skilled prosecuror who knew how to bring
back death verdicts. He was one of District Attorney Ed Rendell's
golden boys in the office. Furthermore, Jackson's every decision and
judgment would be second-guessed by the legion of supporters for
Mumia who attended every court session. He would have to chart a
difficult course to get the case ready for trial, and he would have to
do so with very little money. He was court-appointed, so he was
beholden to the penny-pinching Philadelphia criminal justice system
for the funds necessary to defend his client. fu if that were not enough,
the trial would take place in Courtroom 253-the well-known way
station to Pennsylvania's death row. Judge Albert F. Sabo, a smallminded,
mean-spirited judge, but a darling of the prosecutors, would
preside over yet another death penalty trial.

This, however, was not going to be an ordinary criminal trial.

It began in early June 1982 and ended on July 3, with a decision
by a jury of twelve to "impose death." The prosecurion presented four
"eyewitnesses" who, with their testimony packaged together, provided
a straightforward account of what happened on the night of the killing.
Officer Faulkner had made a rourine traffic stop; the Volkswagen
driven by Billy Cook, Mumia's brother, apparently had turned toward
oncoming traffic on a one-way street. Cook walked toward the front
hood of the patrol car and words were exchanged. Faulkner then attempted
to put handcuffs on him, when Cook suddenly struck the
officer in the face. In response, Faulkner pulled out his heavy-duty
flashlight and hit Cook in the head. During this scuilie, a man
launched into a run from across the street toward the scene. No one
has ever disputed that the man who ran across Locust Street toward
Faulkner and Cook was Mumia Abu-Jamal.

The entire dispute in the trial centered upon what happened in
the next few seconds. According to the prosecution, the man running
across the street brandished a gun and fired into the back of Officer
Faulkner at close range. The wounded officer staggered from the curb
to the middle of the sidewalk. Faulkner then fell to the ground as the
shooter hovered over him, the revolver pointing downward. After firing
several shots, Mumia Abu-Jamal trudged over to the curb, near
the front bumper of the Volkswagen, and sat down. Within a few
minutes, police officers arrived on the scene and found Mumia
slouched on the curb, and the supposed murder weapon, with five
empty shells, lying nearby.

The prosecution had more than just eyewitness testimony pointing
to Mumia's guilt. It also had two witnesses who claimed that he
shouted out a profanity-laden confession. And as for the gun found
within inches of Mumia's reach, the prosecution couldn't definitively
prove that it had fired the bullet retrieved from the slain officer's brain;
but it did claim that the ballistics analysis strongly indicated that it
was the murder weapon.

It was an impressive case. The evidence needed to be answered.

***

CYNTHIA WHITE'S STORY

Cynthia White was standing on the corner of Locust and Thirteenth
Street. She had been working the streets that night, one of several
black prostitutes congregating on Locust. As the time approached
4:00 A.M., and the bars and nightclubs prepared to close, White expected
that a new spate of customers would soon bargain for her
services. She saw the patrol car parked behind the Volkswagen, but
didn't pay it any attention. A patrol car in the neighborhood was no
big deal to Cynthia White.

The police were always a heavy presence in this part of Philadelphia,
and they were a fixture in the lives of Philadelphia prostitutes.
A federal investigation would later expose a sophisticated network of
police corruption, involving high-ranking cops enmeshed in a scheme
to extort money from prostitutes, pimps, and bar owners. White had
always had a good relationship with the cops-a good relationship, in
fact, was essential to her business. Of course, she had no way of knowing,
as she advertised herself in the cold, that she was about to become
the key witness in one of the most explosive murder cases in Philadelphia
history.

On June 21,1982, Cynthia White sat in a witness chair in Courtroom
253, located in historic city hall, a majestic century-old building
in the heart of Philadelphia, with a statue of William Penn situated
atop a slender dome on the roof. The courtroom itself gestured at the
majesty of the law, with its high ceilings, oak trimmings, and French
Renaissance-style decor. In the natural light of the courtroom, White
looked older than her twenty-four years-more depleted than haggard.
Because she rarely smiled when not working, her face sagged, giving
her a wearied appearance. As she squirmed a bit in her seat, she put
her hands on the inside of her thighs and jutted her shoulders forward
as she waited for the prosecutor to get on with it. She looked small
on the witness stand. In fact, she was a small woman without her high
heels.

The jurors stared at her, struggling to hear her whispered answers.
''I'm going to ask you to speak very loudly," McGill directed as he
pointed toward the microphone. He wanted the jury to hear what she
had to say-every word of it.

Mumia sat at the defense table as White sat poised to bury him
with her testimony. When she first sat down in the witness chair, she
was anxious to get the whole thing over with. But as she descended
deeper into her story, she became more at ease. At ease not so much
from enjoyment but apparently from that unique thrill, for the time
being at least, of feeling important.

Joe McGill was going to make his case with Cynthia White.
Slowly and deliberately. Important testimony in a death penalty trial
must be drawn out slowly and deliberately. Slowly and deliberately,
because important facts must be nurtured. They must be displayed,
then absorbed by the mind, and then woven into a story that evokes
a web of feelings. The men and women on the jury would have a
weighty decision at the end of this trial. They would have to decide
whether Mumia should walk again among the free or become, through
deliberate state action, an inert mass of human flesh returned to the
earth. McGill understood well that facts were not enough. There
would have to be that web of feelings pulsating inside these jurors to
countenance another killing. Transforming facts into feelings is a slow
and deliberate process.

White claimed she saw Officer Faulkner pull the Volkswagen to
the curb, emerge from his vehicle, and then walk toward the driver'sside
window. The driver stepped out before he arrived, and the two
walked back toward the police car and then up onto the sidewalk,
talking or arguing along the way. Shortly after they reached the sidewalk,
White told the jury, the man suddenly struck Officer Faulkner
"with a closed fist to the cheek."

Faulkner whirled the man around. White explained that the officer
then pulled back the assailant's arm as if to place him in handcuffs.
She was quite familiar with handcuffing, having been arrested about
thirty-eight times, according to official documentation; probably more,
in reality. She claimed not to see Officer Faulkner unleash an assault
of his own in retaliation. That was an odd omission on her part. Few
things arouse more anger than an audacious act of violence directed
at a police officer.

McGill asked White to step down and demonstrate what she was
describing. The request was, strictly speaking, unnecessary because her
verbal description was perfectly clear. But necessity is a relative notion:
he wanted the scene to be replayed again so the "facts" could be
absorbed by the jury this time through their eyes, not just their ears.

White stepped down from the box and moved toward the well of
the courtroom. Her initial nervousness had withered away completely
by now. The jury watched the show, for that is what it was, by prosecutorial
design, as she demonstrated how Faulkner pulled the driver's
hands behind his back, wrists crossing, when the latter whirled around
to hit the officer.

"Now, Miss White, when did you first see the man running across
the street? At what point?"

White paused, as if to re-create the scene in her head. Her lips
jutted out, not quite pursed, giving the impression she was reaching
back into her memory for the truth. Consciously or not, she was
effective in conveying credibility. "When the police had the driver in
a position to handcuff him, that's when the man came running,"
White explained.

Before Mumia had caught Cynthia White's eye, he had been in
the driver's seat of his own cab, anticipating another fare from among
the many patrons of the numerous night spots nearby. From his cab
situated in a parking lot across the street from where Officer Faulkner
was struggling with the driver of the Volkswagen, he noticed the red
turret light atop the patrol car. He then saw the Volkswagen, and his
body stiffened. In one motion he opened the door and glided out of
the cab. He looked again just to be sure. Yes, it was his brother's
Volkswagen. Was that his brother with the cop, or was it his brother's
business partner, Ken Freeman, a frequent passenger in the Volkswagen?
He strode briskly through the commercial lot and reached the
street. He didn't notice Cynthia White, and he had no cause to. His
attention was on the cop and the other man. He then broke into a
run. Yes, it was his brother, Billy Cook. And his brother was bleeding.

White claimed that Mumia went from a walk to a run about midway
across Locust Street. She claimed to have noticed that he was brandishing
a gun. Mumia fired rwice at the officer's back at point-blank
range, White insisted under friendly questioning. "Come down again,"
McGill summoned, "and show us once more what it is you saw."

McGill knew that White's testimony on this point would be critical-
perhaps the most critical in the whole trial. He asked her to
demonstrate what happened in that moment just before the officer hit
the ground, not for show but to hammer in a point that he needed
the jury to accept. Somehow, White explained, Officer Faulkner spun
himself around to face Mumia and began to fall to the pavement.
White was certain that the officer was grabbing for something as he
was falling. McGill looked over at his jury. He felt, as a good trial
lawyer ought to feel, that this was his jury, and his jury was paying
attention.

What was it that Faulkner was grabbing for? White couldn't say.
"Will you demonstrate to the jury, Miss White, when you said the
police officer fell and you said he grabbed something? ... Stand here.
You don't have to fall all the way. Just, you know, give us a general
idea how it happened."

White complied, twisting around and leaning back as if to fall to
the ground.

The prosecutor would never get White to say that the officer had
succeeded in pulling out his gun. But he felt he had enough from
White's account to resolve the nagging mystery of how Mumia re-
ceived his near-fatal gunshot wound to the chest. He theorized that
Officer Faulkner managed to fire his service revolver once, striking
Mumia in the chest, as he was falling to the sidewalk. What White
had observed, McGill would later suggest to the jury, was Officer
Faulkner reaching for his service revolver. McGill again asked her to
demonstrate in front of the jury box.

"He came over and he stood on top of him .... He came over
and was doing like this here with the gun."

Wounded, Mumia allegedly stood over the terrified young man
and emptied his revolver. White stood in front of the jury, with her
right arm outstretched and her hand positioned like a simulated gun.
She jerked her hand back three times, simulating the recoil of a firearm,
as she told the jury that Mumia "was doing like this here with
the gun."

She stood for a moment, waiting for the director to give her the
next cue to the performance, but the prosecutor just pointed toward
the witness chair. She walked back to her seat and crossed her legs,
waiting for the next question.

"Would you point him out, Miss White?" Her right hand was
pressed against her lip, her elbow on her knee, when she suddenly
thrust her index finger toward Mumia, her arm rigid for several seconds.
"Any doubt in your mind, Miss White?" The abrupt finger stab
already revealed the answer, but she verbalized one anyway. Viewing
the scene from about three car lengths away, White was sure that it
was the defendant, now seated at a table some twenty feet away, who
killed the officer.

White then explained to the jury that, after the shooting, Mumia
had stumbled over to the curb and sat down. And indeed, when police
arrived at the scene, less than two minutes thereafter, they saw Mumia
slumped on the curb near the front bumper of the Volkswagen, his
chin bobbing slightly on his heaving chest.

As far as the prosecutor was concerned, Cynthia White was all the
prosecution needed to make out its case against the defendant.

***

ROBERT CHOBERT'S STORY

McGill, of course, was delighted that he had more eyewitness testimony,
as it is a mistake to take anything for granted in a jury trial.
He called to the stand a cabdriver who saw the shooting from within
his cab moments after discharging a passenger onto the sidewalk on
the southeast corner of Locust and Thirteenth Street. Robert Chobert,
a troubled twenty-two-year-old white man serving out a probationary
sentence for committing arson for pay at a school, was logging his last
fare in his notebook when he heard a single shot.

"I looked up, 1 saw the cop fall to the ground, and then 1 saw
Jamal standing over him and firing some more shots into him." Chobert
was the kind of witness a trial lawyer loves. No ambiguities, just
a straightforward answer.

He had the look of a youthful beer drinker, pale with dull eyes
and unruly hair, all of which suggested he didn't welcome conversation
from strangers. Something about the way he tightened his face when
prompted to talk gave the impression that he just wasn't into small
talk. When he entered the courtroom to testify, it looked as if he were
going to break into a run down the aisle and jump over the railing.
As he walked between the prosecution and defense tables, he shot a
quick glance over at Anthony Jackson, perhaps already thinking about
the inevitable cross-examination.

He had been staying at a local hotel, for his own protection,
according to the detective who was sitting next to the prosecutor in
the courtroom. Chobert didn't seem to mind it, so long as he wasn't
paying the bill. He thought it was all kind of ridiculous, putting him
in a hotel for a couple of weeks. He couldn't imagine that his life was
in danger because he was a witness in this case. After all, it wasn't a
mob hit. Chobert figured that the MOVE organization-the black
radical group that had taken root in Philadelphia-might be involved
in some way, but the MOVE members seemed to be too hung up on
"the system" to be bothered with him.

McGill wanted to break the scene down into little snippets. So he
asked Chobert to explain exactly what he saw when he looked up
from his notepad. "I saw the officer fall," Chobert explained, with the
terse precision that pleased the prosecutor.

"And then, tell us again, what did you see happen?"

"I saw him shoot again several more times."

"Now, what then did you see the shooter do?"

"Then I saw him walking back about ten feet and he just fell by
the curb." No running, no fleeing, just walking the few feet to the
curb-the curb where Mumia was ultimately found.

Hadn't he told the police that the shooter "ran away?" Jackson
would press later on in his cross-examination. That was a "mistake,"
Chobert responded. Jackson had little ammunition with which to attack
Chobert's retreat from his initial police statement. Chobert had
indeed told investigators at the crime scene that the shooter "ran
away," but he also claimed that the police apprehended him. Now,
on the witness stand, Chobert insisted that the shooter never ran at
all, but only traversed the few feet to the curb, thus mapping the
testimony of Cynthia White.

McGill didn't even attempt to get Chobert to explain how Mumia
had been shot. He evidently knew from the prep sessions that Chobert
couldn't say, despite his claim that he watched, uninterrupted, the
events unfold between the shooter and Officer Faulkner. After the
shooting ended, but before the police arrived, Chobert stepped our of
his cab and walked toward the body on the sidewalk. Jackson never
seized on the puzzling aspect of this testimony. If Chobert walked
toward the slain officer, then doesn't that indicate the shooter had
fled the scene? Isn't that what Chobert, in essence, told the police that
night-that the shooter "ran away"? Does it make sense that Chobert
would walk in the direction of the crime scene, seconds after a man
had just brutally executed a police officer, if that executioner remained
there, as he was now suggesting?

The arriving police ordered him back to his cab. They soon came
back to him after they had whisked Officer Faulkner away and had
thrown Mumia into the police van.

Like White, Chobert gave a statement to interviewing detectives
at the scene, describing what he had seen and the physical attributes
of the shooter. Homicide detectives, figuring that a cab driver's onthe-
scene identification would be more solid-less impeachable, in the
argot of litigators-than that of a prostitute, escorted him to the police
van where Mumia lay. Chobert knew that the man sitting on the curb
was now in the police van because he had seen the police put him
there.

"And then what?" the prosecutor prompted the witness.

"They took me over to the wagon, like I said, and they asked me, 'Is
that the guy?' I said, 'Yes, it is.' " He identified Mumia as the shooter.

"Do you recall telling the police the type of hair that the shooter
had?"

Chobert nodded and it looked as if he were going to crack a smile,
but he caught himself. "Yeah, he had long matted hair ... like a
MOVE member."

Jackson tried to shake Chobert from his certainty that Mumia was
the one. The attack only caused Chobert to harden as a witness. "I
know who shot the cop, and I ain't never gonna forget it." You're
sure? the defense attorney asked again. "Pretty damn right I am."

The prosecution was in good shape with Chobert's on-the-scene
identification. Although Chobert couldn't provide the seamless narrative
that White offered the jury-especially in his inability to account
for Mumia's gunshot wound-he took the sting out of the fact
that White's credibility could always be questioned by virtue of how
she made her living. Chobert also corroborated a key aspect of White's
account: he, too, told the jury that he had seen the shooter stumble
over to the curb at the front of the Volkswagen after firing pointblank
at the fallen officer. Regardless of how Chobert and White may
have described the shooter-and their descriptions differed berween
them and did not match Mumia's physical attributes-the fact that
they both claimed to see the shooter finally situate himself in the very
place that the police found Mumia less than rwo minutes later was
powerful enough to substantiate that Mumia was the killer. Chobert's
on-the-scene identification of Mumia in the police van was just icing
on the cake.

***

MICHAEL SCANLAN AND ALBERT MAGILTON

Two other eyewitnesses were called by the prosecution. While neither
could definitively say who was the shooter, their observations strongly
suggested that the shooter was the man who had run across Locust
Street. Since there was no dispute that that man was Mumia, Scanlan
and Magilton, as far as McGill was concerned, further corroborated
the theory that Mumia was the shooter.

Scanlan, a young well-dressed white man who had just dropped
off his date, was driving alone in his Ford Thunderbird east on Locust.
He admitted to having had "a few cocktails ... a couple hours before."
He brought his vehicle to a stop in the left-hand lane at the traffic
light on Locust just west of the intersection with Thirteenth Street, a
distance he estimated to be "several car lengths" behind the police car,
but which was actually nearly one hundred feet. He remained at the
intersection until after the shooting, facing the rear of the police car.

Scanlan looked as if he had experience in testifying, though he
claimed he didn't. He seemed to know how to connect with his audience
by brushing his eyes across the panel of jurors angled to his
left. He kept a respectful posture throughout his testimony-something
that neither Chobert nor White could do-and wasn't afraid to
smile. There never was much to smile about during the trial, but
Scanlan, more than the others, seemed willing to open up. He could
be a very dangerous witness, Jackson must have thought to himself as
he sat coiled like a cat ready to bounce into action, his chair turned
in the direction of the witness box.

Scanlan's observations differed markedly from those of Cynthia
White. Whereas White had the scuffie between Officer Faulkner and
Billy Cook taking place on the sidewalk, Scanlan testified he first saw
the two men in the street in front of the police car. According to
Scanlan, Officer Faulkner had Billy Cook spread-eagled over the hood
of the police car and was beating him with what appeared to be a
flashlight or billy club after Cook had swung around and struck him
in the face. Scanlan's observations were confirmed by the fact that
Faulkner's seventeen-inch flashlight was found at the scene with a
broken lens. Moreover, the officers who took Cook into custody immediately
after the shooting reported seeing fresh blood running down
his neck and from the left side of his face, a fact confirmed by photographs
taken of Cook. Cynthia White's version, unlike Scanlan's,
omitted any mention of Faulkner hitting Cook. Whether that fact
would hold any significance for the jury remained to be seen, but it
certainly raised a question about White's seamless account of what
happened.

The important fact for McGill was that Scanlan saw a man running
across Locust Street toward the two scuffiing men. Although he
testified that this man brandished a gun, he later modified that claim
with the admission that it was simply an assumption on his part.
When he saw the shooting through the flashing red turret light atop
the patrol car, he assumed that the shooter was the man who had run
across the street. That's why he just assumed the man running across
the street had brandished a gun. Jackson could understand how Scanlan,
an apparently honest man with no real ax to grind, could assert
something as an observed fact when, in reality, it was nothing more
than an assumption. Experienced criminal defense lawyers acutely understand
how the human mind pieces together bits and pieces of an
observed event, stitching them together with assumptions to create an
uninterrupted mental film of what supposedly happened. It is in the
stitching where mistakes are often made.

Of all the witnesses, Scanlan was the only one who candidly admitted
that there was "confusion when all three of them were in front
of the car."

The most articulate and engaging of the eyewitnesses, Scanlan was
the most potent. The jury winced at hearing Scanlan's depiction of
Officer Faulkner's execution: "The man walked over and was standing
at [Officer Faulkner's] feet and shot him twice. I saw two flashes. I
could see the one that hit the officer in the face.... His body jerked.
His whole body jerked."

McGill was pleased with Scanlan as a witness, but he wished that
he could have provided more. McGill never asked him to identify the
defendant in the courtroom as the shooter, because he knew that he
couldn't make the identification. Detectives had tried to get him to
identifY Mumia at the crime scene. With another identification, they
thought, perhaps the prostitute witness would not even be necessary.
But that was not to be. Scanlan's confusion over what he had seen
manifested itself in his identification. He followed the homicide detectives
over to the police van and obediently peered inside. He saw
a man laying inside, not quite in a fetal position, but curled up nonetheless.
The detectives told Scanlan to look carefully-was this the
man who shot the cop? The urge to say yes was compelling, with all
of the police activity around him and the urgency evident in the voices
of the detectives. He couldn't help bur notice that this man had flowing
dreadlocks. Wasn't it the driver who had the dreadlocks? Scanlan
wondered. He tried to reconstruct the sequence of events in his mind
as he stood in the cold night air, looking inside the van. He looked
over toward the buildings where Billy Cook was in the company of
police officers. He compressed his lips as he tried to figure out which
man did what. Is he the one? the detectives wanted to know. Scanlan
looked hard again inside the van. He noticed Mumia's labored
breathing. "No," he finally told them, "he was the driver."

"Fuck," one of the detectives groused.

Albert Magilton was on and off the witness stand before anyone
could realize that he didn't offer much at all. He couldn't describe
the shooter. He didn't even see the shooting. He was in the west
crosswalk of the intersection, heading north across Locust. He reported
seeing Officer Faulkner's vehicle "put on the lights" at the intersection
of Locust and Thirteenth while both vehicles were proceeding east on
Locust. He saw the officer and the driver "walk onto the pavement"
between the cars. Magilton then turned away from the scene to cross
Locust in the midst of traffic. Although he noticed a man run across
Locust, he didn't look in the direction of the crime scene until he
heard gunshots. Police never even tried to have Magilton attempt an
identification.

Scanlan and Magilton were valuable witnesses, not in their own
right but as bolstering witnesses for White and Chobert. White and
Chobert claimed that it was Mumia who had the gun in his hand as
the bullet exploded out of the chamber and struck the officer. Scanlan
and Magilton reinforced the point that Mumia had, just seconds earlier,
run across Locust Street toward the scene; and Scanlan contended
that it was the man who ran across the street-whatever he looked
like-who shot the officer.

***

THE CONFESSION

Prosecutors love confessions. It makes their job so much easier. They
don't need to bolster the credibility of their witnesses; they don't need
to make sute that scientific tests were done correctly; they don't need
to worty about the integrity of the physical evidence. The defendant
convicts himself through his own words.

Juties feel good about confessions too. Jurors don't want to convict
innocent people. They want to make sute that their verdicts of guilt
don't compound a tragedy with an equally horrific tragedy of sending
an innocent man to death at the hands of the law. So when they hear
evidence that a defendant confessed to the crime, their job is made
that much easier also, and their consciences are not racked with nagging
questions about whether they had done the right thing.

Defense lawyers are fond of playing on that human frailty-the
human tendency to wake up nights wondering if you had made a
mistake on a gravely important matter. Defense lawyers, hoping to
frighten jurors into finding reasonable doubt, often remind them that,
at some point in their lives, they will have thoughts intrude on their
sleep, asking whether the man they convicted was really guilty. The
hope, of course, is that the jury will take a risk-averse approach to the
case-as the Constitution demands-and find that the prosecution
simply cannot prove its case beyond a reasonable doubt. But where
the prosecution has evidence of a confession, such pleas and reminders
to a jury ring hollow.

A defense lawyer cannot, under any circumstances, let evidence of
a confession enter into a case without challenging it vigorously. In a
death penalty trial, challenging the confession is a life-or-death task.
The prosecution claimed that Mumia confessed to the killing of Officer
Faulkner, and the defense had to answer that claim.

Both Officer Faulkner and Mumia were removed by the police
from the scene of the shooting and taken to Jefferson Hospital, three
blocks away. Mumia was taken from the police van and dumped
violently onto the emergency room floor near the entranceway. Fortunately
for Mumia, he didn't stay there long, as he was seen by an emergency
room crew within ten minutes of his arrival. Doctor Anthony V.
Coletta, a surgical resident on call, responded immediately to a trauma
code on his beeper. When he reached Mumia he found him to be
"weak ... on the verge of fainting ... if you tried to stand him up, he
would not have been able to stand." Although he was on the floor for
about ten minutes, according to two prosecution witnesses, Mumia
sealed his fate while he lay there awaiting a doctor to tend to him.

A hospital security guard named Priscilla Durham told the jury
that Mumia shouted out to the fifteen to twenty police officers hovering
around him, "I shot the motherfucker, and I hope the motherfucker
dies." When she heard the remark, she figured out, as she
tells it, "what was going on." Mumia was the arrestee who shot the
other patient in the emergency room; he was the cause for the mass
influx of police officers into Jefferson's emergency room. A little while
later, according to Durham, Mumia shouted out the confession again,
phrased in exactly the same way. Through it all, Durham told the
jury, Mumia was "screamin' and hollerin'."

Jackson challenged Durham's account of hearing this confession.
He had no choice. If the jury believed that Mumia bragged about the
killing in such a coldhearted way, the jurors would not only convict
for sure but would probably want to flip the electrocution switch
themselves. Jackson brought out the fact that Durham didn't mention
the confession to law enforcement personnel for approximately three
months.

Durham was ready with an answer, obviously expecting that the
defense would make that point in cross-examination. She turned to
the jury, gave a slight nod, and explained that she had, in fact, reported
hearing the confession the very next day, to her supervisor. She went
on to explain that her supervisor hand-wrote her statement, memorializing
the fact that she had, indeed, heard the confession. Jackson
was stunned. If Durham had reported hearing the confession on the
following day, then it would be impossible to undercut the confession
in any realistic way.

Jackson understood that Mumia's life hung in the balance. He
demanded to see this hand-written statement.

McGill claimed never to have seen the statement, which in itself
was a remarkable fact, but suspiciously told the judge that he "would
be very glad to have it brought over." If McGill had never seen the
document, how did he know it was readily retrievable? Surely he had
to have known that Durham was going to say on the witness stand
that she reported the confession to her supervisor on the following
day. It was a devastating claim to the defense-too devastating for
this highly aggressive prosecutor not to have known about it, as he
was suggesting. Something was up, but Jackson just didn't know what
It was.

"Cross-examine her about something else," the judge advised.
"You can call her later on."

When the cross-examination was over, the jury was left with Durham's
testimony, but no hand-written statement. But, like manna
from heaven, a detective assisting the prosecutor during the trial
marched down the center aisle and entered the well of the courtroom
during a brief recess. He was carrying a piece of paper, and he seemed
to be holding it with reverence, making sure that its edges didn't get
wrinkled. He handed the document to McGill, who took a moment
to read it through.

Bingo! The detective was able to retrieve a typewritten statement
purporting to be a memorialization of Durham's report of the confession
to her supervisor. He was able to retrieve it before Durham was excused
from the stand. It couldn't have been scripted any better for the
prosecutor. McGill pompously walked the treasured document over to
the defense table, fully aware that the drama would only bolster his case.
He rested it in front of]ackson, without a word, but his mannerism suggested
that he was telling Jackson to "give it his best shot."

Jackson barely looked at the document before he showed it to
Durham. It didn't have a signature-not hers, not anyone's. Jackson
detected that Durham appeared to be surprised by the document as
well. He pressed her about it, not knowing what she would say. Trial
lawyers hate asking questions without knowing the answer in advance.
They're taught to do it only in the most desperate situations, and even
then to err on the side of holding back. Durham said she had never
seen it, but claimed that it looked like a typewritten version of the
hand-written account.

McGill wanted to put that document into evidence. But he had
a problem: how could he justifY its admission into evidence if Durham
didn't actually draft it? The rules of evidence are quite strict about
the admission of documents that can't be authenticated by a witness.
After all, an unauthenticated document, such as this one, could have
been generated at any time. But this problem was easily surmountable,
not by dint of effort or crafty lawyering. There was, in fact, no problem
at all, because sitting on the bench was Judge Albert F. Sabo, a
Philadelphia prosecutor's best friend. Judge Sabo seemingly operated
on a simple rule: if a document or testimony helps the prosecution,
it comes into evidence. It's not an evidence rule that law professors
teach their students, but then again, law professors know little about
the law as it is deployed in a real courtroom in a real case. Judge Sabo
applied that rule in this case and allowed the typewritten document
into evidence for the jury to analyze for itself.

Jackson was deflated. His questioning from then on subtly but
unmistakably took on a different complexion. The questions now were
phrased as if he had to accept as fact that Mumia had stupidly shouted
out a confession. Jackson even suggested in his closing argument, preposterously,
that Mumia shouted the confession to deflect attention
from the real perpetrator-his brother. Could there be any doubt what
the jury was going to do now?

Mumia understood, probably more acutely than anyone else, that
Durham had done considerable damage. He had been insisting on his
right to represent himself from the very moment that the trial began,
but that right had been taken from him-for disruptive behavior,
according to the judge; for no good reason other than concern that
he would be too effective, according to Mumia and his supporters.
Mumia stood to question this security guard, and he threw out a
question to her. A few jurors shook their heads disapprovingly. Judge
Sabo gave the command to remove the jury from the courtroom and
they were hustled out.

"You realize if you interrupt in front of this jury I'm going to
have to remove you again," Judge Sabo warned.

Mumia hadn't been intimidated by the warnings before, and he
wasn't intimidated now. "Judge, you can remove me again and again
and again and again. I am going to point out to you what is important
to me; that this is my trial; that this man [gesturing toward Jackson]
isyour employee, not mine; that he is functioning for the court system,
not for me; he is not doing what I am telling him and directing him
to do but what you are ordering him to do .... I am protesting his
appointment, his continuing functioning here. I wish for him to be
withdrawn immediately."

"Are you going to make some statements in front of the jury?"
the judge asked.

"Well, I had planned to defend my life in front of the jury. I plan
to represent myself in front of the jury. I plan to cross-examine witnesses
in front of the jury. I plan to make a closing statement and
argument in front of the jury. But obviously you have other plans."

"In other words, you're telling me if I bring the jury in, you're
going to stand up and start making statements in front of the jury?"

Mumia knew exactly what Judge Sabo was doing: he was "making
a record" to justify his banishment once again from the courtroom.
"I didn't say that at all, Judge. I told you what I plan to do."

"Okay. We'll bring the jury in and we'll play it by ear. Like I told
you before, if you act up-"

"Judge, I'm not acting up," Mumia protested. ''I'm not acting at
all. I'm telling you the truth."

The jury was brought back into the courtroom, and Mumia rose
again to question Durham. The jury turned and shuffied out of the
courtroom again. It had become a virtual daily routine for the jury.

"Okay, Mr. Jamal, it is obvious to the court that you intend to
disrupt the proceedings in front of the jury."

"I am not disrupting. It's obvious I intend to defend myself."

"Well, once again I am removing you from the courtroom."

fu had happened many times before in this wild spectacle of a
trial, an armed court officer, prompted by Judge Sabo's directive, took
Mumia out of the courtroom and relegated him to a holding cell as
the trial proceedings continued.

McGill wasn't going to take any chances with the jury when it
came to the confession. He called another witness, Police Officer
Garry Bell, Faulkner's onetime partner. Bell went to the hospital immediately
after hearing news that Danny had been shot. He was standing
at the nurse's station when a corps of officers dropped Mumia
onto the emergency room floor. He looked over and saw a dreadlocked
black male lying there and he concluded that his fellow officers had just
brought in the killer. White-hot with anger, Bell went over to Mumia,
knelt down to look into his eyes. According to Bell, Mumia looked at
him and uttered the exact words that Durham had recounted for the
jury. In response, Bell told Mumia, "If he dies, you die."

In his opening remarks to the jury, McGill promised that they
would hear evidence of a confession that revealed a "picture of extreme
arrogance, defiance, even a strange boastfulness .... " The prosecutor
fulfilled that promise.

***

THE BALLISTICS AND MEDICAL EVIDENCE

Two guns were recovered from the crime scene. Officer Faulkner's
gun, a police-issued .38 Smith and Wesson, contained six Remington
.38 special cartridges, one of which had been fired. The projectile from
the spent shell was later retrieved from Mumia's lower vertebra. The
other gun, found within inches of Mumia's outstretched hand at the
crime scene, was also a .38-a five-shot Charter Arms revolver with
a two-inch barrel. The Charter Arms revolver contained five cartridges,
all of which had been fired.

There was no doubt that the Charter Arms belonged to Mumia.
He had bought it eighteen months earlier and registered it in his name
after having been victimized by robbers in his cab. In fact, the operator
of the sporting goods shop that sold Mumia the gun distinctly remembered
him. Asked why he remembered him, the witness testified
that "he was very well-spoken and well dressed." Folks who buy guns,
this gunshop proprietor seemed to be saying, aren't typically well
dressed or well-spoken. Or was it the combination of Mumia being
black with dreadlocks and "very well-spoken and well dressed" that
made such an imprint on his mind?

McGill made a point of letting the jury absorb fully the fact that
Mumia's revolver contained "plus P" high-velocity bullets. The witness
explained that the plus-P bullet is known in the gun trade as a "devastating
bullet."

Devastating? "When it hits the target, it just almost explodes," the
firearms expert explained.

The prosecutor's message to the jury was disturbing: Mumia was
not only pleased by what he had done, to the point of bragging about
it; he had envisioned the need to lay waste another human being when
he bought this gun loaded with "devastating" bullets, months before
he ever encountered Danny Faulkner.

Prosecutors like to bring in medical evidence, even when it is
incidental to the guilt/innocence calculus. Clinical talk of how a bullet
pierces through skin and punctures vital organs has a certain attraction
and power. It conveys humanity's fragility in the face of evil. An angry
black man, poised with a gun containing exploding bullets, can snuff
out the life of a young police officer in an instant, and there is nothing
one can do to stop it from happening ... except to take revenge
through the force of the law and hope that it somehow deters others.
That is what a prosecutor wants a jury to feel.

So McGill let the trial linger for a while on clinical and scientific
discussions about how Officer Faulkner died. The state's pathologist
was called to the stand, and he described how he had removed a bullet
from the officer's head. It was too deformed, so he said, to be ballistically
matched to a particular gun. McGill underscored the fact that
the deformed bullet fragment was a .38 caliber with rifling characteristics
"consistent" with Mumia's Charter Arms revolver, thus narrowing
the range of firearms that could have expelled the deadly bullet.
It was certainly of little use to simply conclude that the fragment was
a .38: how many .38 caliber weapons existed on the streets of Philadelphia?
Too many, by anyone's count.

The prosecution had alleged that Mumia fired several shots, at
point-blank range, at Officer Faulkner as he lay helpless on the sidewalk.
Only one struck him. Why? Although McGill didn't harp on
the point, the picture for the jury was that Danny Faulkner desperately
rolled his body from side to side to avoid being killed. He succeeded
in causing the shooter to miss twice. The shooter then bent down
closer, all the better to ensure that the final bullet would reach its
intended destination.

***

AN OPEN-AND-SHUT CASE?

The prosecution had a compelling case. Some say the trial record
proves without doubt Mumia Abu-Jamal brutally killed Officer Danny
Faulkner. Joseph McGill is fond of telling the public that he's never
had a stronger murder case in his successful and high-profile career as
a Philadelphia prosecutor. The Fraternal Order of Police, campaigning
nationwide to battle the forces favoring Mumia, call it a "clear-cut
case" and accuse Hollywood celebrities of being "fools" for joining
forces with "anti-death penalty groups, left-wing extremists, and misguided
academics." The Philadelphia district attorney's office even dispatched
an angry letter to Hollywood celebrities supporting Mumia,
like Ed Asner and Whoopi Goldberg, extending McGill's claim to
say that it was "one of the strongest" cases ever prosecuted in that office.
To reach an even wider audience, District Attorney Lynne Abraham
(who was actually the municipal court judge presiding over Mumia's arraignment)
penned an op-ed piece in the New York Times, entitled
"Mumia Abu-Jamal, Celebrity Cop Killer," questioning how anyone
could be seduced by this cold-blooded killer.

Such seemingly overwhelming evidence-four eyewitnesses (including
two prompt on-the-scene identifications), a highly memorable
confession by an angry black radical with a perceived affiliation with
an anti-establishment organization, an alleged murder weapon found
at the scene with rifling characteristics consistent with the bullet that
drilled through Officer Faulkner's brain, and a suspect found within
feet of the deceased officer and within reachable distance to the gun:
it all begs the question, why is there a fuss over Mumia's case? Why
have Hollywood celebrities, authors, academics, political notables, college
students, and progressive activists around the world seized upon
this man's predicament when, it would seem, his predicament is one
of his own making?
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:09 am

There is not perhaps anywhere to be found a city in
which prejudice against color is more rampant than in
Philadelphia.

-- FREDERICK DOUGLASS

Philadelphia is bleeding to death because of the MOVE
tragedy.

-- PHILADELPHIA JUDGE STANLEY KUBACKI


3. THE SOURCE OF GOOD AND EVIL

Racial polarization is a defining feature of Philadelphia, as it has
been since the mid-1800s when Frederick Douglass visited the
city and decried the subjugation of blacks. Warnings from nineteenthcentuty
intellectuals of an awakened and angered underclass became a
reality in the 1960s, as the Black Panther Party, Huey Newton's radical
black empowerment group, gained a strong foothold in Philadelphia's
minority communities (40 percent of its population), and the
municipal and federal governments took note. The FBI in August
1967 launched a surreptitious offensive against so-called "Black N ationalist
Hate Groups" (BNHG) nationwide as part of its overall domestic
surveillance program known as COINTELPRO, short for
"counterintelligence programs."

The FBI, popularly regarded as a premier crime-fighting agency,
was in the '60s and '70s a political police force engaged in extralegal
activities calculated to contain, and if possible destroy, left-wing political
dissent of all types. Slowly emerging in the public record is a
more complete accounting of this domestic counterinsurgency cam-
paign. Hoover's obsession with Martin Luther King, Jr., which extended
to psychological warfare calculated to induce King to commit
suicide, is now a matter of public record. [1] Thomas I. Emerson, the
late Yale law professor, remarked that the FBI's COINTELPRO operations
"jeopardized the whole system of freedom of expression which
is the cornerstone of an open society.... At worst it raises the specter
of a police state ... [where] in essence the FBI conceives of itself as
an instrument to prevent radical social change in America .... [T]he
Bureau's view of its function leads it beyond data collection and into
political warfare." [2]

In fact, J. Edgar Hoover's obsession with black nationalism stretched
back to the days of Marcus Garvey (1917-18), one of the first black nationalists
to receive widespread attention in the United States. When
the National Association for the Advancement of Colored People
(NAACP) was formed in 1940, principally in response to widespread
lynchings, the FBI quickly penetrated that staunchly anticommunist organization
to look nonetheless, and without success, for communist
"contamination and manipulation."

During the 1960s, as spontaneous and uncoordinated rebellions
flared up in various cities, Hoover became increasingly concerned that
the formation of black organizational leadership would lead to the
harnessing of black rage, which in turn would threaten "law and order"-
a coded expression for protecting the status quo. To Hoover
and others in the Bureau, the solution was obvious: destroy even the
possibility that blacks could become organized. They used whatever
means were at hand to achieve that end.

The Black Panther Party was originally established in Oakland, in
the fall of 1966. Shortly after Labor Day 1968, Hoover publicly announced
that "the greatest threat to the internal security of the country"
was the Black Panther Party. [3] Justifying aggressive FBI tactics on
claims that the Panthers were nothing more than violent thugs, Hoover
completely whitewashed the fact that the "ten-point program" of
the Black Panther Party was inspired with themes of direct community
political control over, and economic self-sufficiency within, the black
communities. In late 1967, the Panthers initiated free breakfast pro-
grams for black children, and offered free health care to blighted communities.
[4] A year later, the Black Panther Party expanded its efforts
into community education and antidrug programs. The success of the
Panthers in attracting allegiance within black communities sparked
concerns within the FBI, with one senior agent noting in a memo
that membership was "multiplying rapidly." [5]

Indeed it had. By 1968, there were as many as five thousand
members in the Black Panther Party, with chapters in over a dozen
cities. The FBI itself admits to 295 distinct COINTELPRO operations
against black nationalist groups; of these, 233 were aimed at the
Black Panther Party specifically. [6] Shootouts between police and the
Panthers stoked the prejudices of the white population just as it further
radicalized many student leftists. New Left leader Tom Hayden advocated
and organized target practice for young political radicals, black
and white, so alarmed was he over the rash of shootouts involving the
Panthers. [7] "The total number of fatalities resulting from these brutally
illegal activities on the part of the nation's 'top law enforcement
agency,' " one knowledgeable observer laments, "will probably never
be known, nor will the number of years spent by innocent people
railroaded into prison cells or the number of lives wrecked in somewhat
more subtle ways." [8]

***

Justified on dubious security grounds, COINTELPRO tactics provided
the green light for municipal police agencies to engage in policestate
activities. Philadelphia became the preeminent example, if not
the paradigm, of police-state governance in urban America in the activist
era of the '60s and '70s. Frank L. Rizzo, Philadelphia's mayor
from 1972 to 1980, exemplified the image of the tough-talking brute
who ran a town with unquestioned authority. As the onetime head of
its police department, Rizzo transformed the Philadelphia police force
into a political weapon targeted at left-wing organizations, all in the
name of law and order. Philadelphia was over 40 percent black and
it was a breeding ground for radical politics in the heady days of the
'60s and early '70s. Aware that they were governing a city containing
a large minority community under the thumb of an unresponsive
white power structure, Rizzo and other power brokers in Philadelphia
feared that themes of black nationalism and empowerment would resonate
with, and hence radicalize, what had long been a rather
quiescent underclass. Rizzo wanted to keep it that way, and the
property-owning and middle-class whites of Philadelphia were solidly
in accord. There was an implicit pact between Rizzo and the business
community in Philadelphia: the police could do whatever they must
to keep their boots on the throats of the underclass, so long as the
crime rate was kept under control, left-wing political activism neutered,
and the business climate cultivated.

Rizzo, the son of a police sergeant, had served in the Philadelphia
police department for forty-five years. He was, no doubt about it, a
larger-than-life figure. Although he rose through the ranks to become
mayor in 1972, he never quit being a police officer in terms of his
political disposition and outlook. As a cop, Rizzo prided himself on
the liberal use of brute force. He encouraged it in other cops, giving
it a wink and a nod even when he was mayor. Rizzo's police-can-dono-
wrong credo pervaded the collective consciousness of the police
department, and to a disturbing extent the public at large.

To consolidate power as mayor, and thus to further imbue police
officers with a feeling of invincibility, Rizzo worked hard to place
loyalists in critical positions of power within the municipality. The
main line of defense against governmental abuse, the state judiciary,
was brought into line with crude political tactics. Judges who looked
askance at police heavy-handedness found themselves off the bench
after lost reelection bids. Strategic leaks of embarrassing and sensitive
private information targeted at political enemies created a climate of
fear among those who otherwise could have challenged Rizzo's obsession
with political activists and organizations seeking meaningful social
change in Philadelphia.

Rizzo first honed his aggressive police tactics on bohemian counterculture
hangouts that sprouted in various parts of the city in the
mid- to late '60s. Rizzo took it as a crusade to rid Philadelphia of
counterculture kids and freethinking young people by demolishing the
commercial establishments that were created to cater to them. There
would be no Haight-Ashbury or Greenwich Village in Philly. Police
raids of head shops, funky cafes and bars made the cost of doing
business virtually prohibitive. Rizzo the Raider, as he became known,
reasoned, quite rightly, that hippies and pot-smoking youngsters from
outside Philadelphia would be disinclined to flock to the city if the
urban environment provided no safe havens for their activities.

Homegrown political radicalism was the next target. The most
glaring example of Rizzo's fixation on squelching potentially radical
political activity occurred in November 1967. Rizzo authorized a "riotplan"
intervention into a demonstration outside a school meeting
where high school students were negotiating with school officials over
implementation of a black studies program. The demonstrators numbered
in the several thousands, voicing their support for the students.
In classic Rizzo style, police officers wearing motorcycle boots and
leather jackets encircled the demonstrators. Rather than give space to
the demonstrators, the police gradually tightened the perimeter, provoking
the demonstrators. It is unclear what prompted the announcement,
but it was inexorable that the announcement would come: "Get
their black asses!" Rizzo shouted. The jittery cops collapsed the leatherclad
perimeter onto the demonstrators, engulfing them in a swirl of
violence. The Philadelphia director of the ACLU, attending the demonstration
to monitor police brutality, reported that Rizzo's cops beat
the demonstrators "unmercifully with clubs."

Rizzo's fear of cultural and political subversion became hauntingly
fanatic when it came to more organized left-wing political activism.
Philadelphia developed a premier special police unit, known as the
Civil Defense squad, to surveil and ultimately subvert the subversives.
Modeled after similar units within the FBI, the CD squad used all of
the domestic counterinsurgency tactics that were in play against national
figures on the left. Infiltration with snitches and undercover
operatives into progressive and left-wing political organizations was
routine. Bulging files containing photographic surveillance and observation
notes rested in file cabinets down the hall from the records
room containing files on criminals and open criminal investigations.
"We keep a record in the file of all demonstrators we cover," one CD
squad officer stated in court testimony during the trial of well-known
peace activist Philip Berrigan.

At the height of '60s activism, the Panthers in Philadelphia stood
out (as they did in other U.S. cities). How could they not, with their
military bearing and discipline, and their tough-talking, no-bullshit
rhetoric. There was no doubt the Panthers and Rizzo were destined
to collide, but not before they engaged in a toxic catch-me-if-you-can
surveillance game. In mid-September 1969, a bugging device was discovered
in the Panther headquarters in Philadelphia. Later that month,
the Panther office was looted and internal documents illegally seized,
including, ironically, signed petitions gathered by Panther members
in its campaign for communiry control of the police.

In March 1970, CD squads, with the help of FBI agents, raided
another Panther office in north Philadelphia and arrested eleven people
believed to be Panther members. Five months later, very early one
August morning, CD squad units simultaneously raided Panther offices
at three Philadelphia locations, with television news cameras in
tow-another classic Rizzo move, as he was consumed by the desire
to manipulate public perception through carefully orchestrated media
events. With stunning speed, CD squad officers and federal agents,
protected by bulletproof vests and chosen for their expertise with firearms,
aggressively subdued Panther members, who actually never put
up any genuine resistance. They then proceeded to loot and destroy
the offices.

To say that Rizzo had a monstrous dislike for the Panthers is an
understatement. He relished belittling them in the press, hoping to
provoke their ire and thus induce bloodshed, which could then be
used to justifY even more repressive police tactics. After the August
1970 raids, Rizzo taunted the Panthers as "yellow" because the arrestees
had complied immediately with law enforcement directives to
drop their weapons. Rizzo suggested that the Panthers were all bark
and no bite because they didn't engage the raiding cops in a shootout.
The arrestees were also humiliated, upon Rizzo's orders, by having to
stand naked for prolonged periods of time, awaiting to be strip
searched. News photos depicted naked Panther members, with uniformed
white police officers standing next to them with shotguns,
chins up, chest out, and obviously satisfied-photos disgustingly suggestive
of an Mrican safari. Rizzo loved the photos and the imagery
of police domination. "Imagine," he gloated, "the big Black Panthers
with their pants down."

In the immediate aftermath of the August raids, news reporters
confirmed complaints by Panther leaders that files and office equipment
were stolen and the physical plant of the offices destroyed. When
reporters confronted Rizzo with this, he grew even more defiant, with
vintage Rizzo-like panache: "We're dealing with a group of fanatics,
yellow dogs .... We are dealing with psychotics and we must be in a
position to take them on. These imbeciles and yellow dogs ... we'd
be glad to meet them on their own terms. Just let them tell us when
and where."

It would never be a fair fight, of course. Rizzo had the guns, the
numbers, the judges, and "the law" on his side. Especially "the law."

***

It was in this climate that Mumia gained political consciousness as
a young teenage Black Panther Party member. Mumia credits a kick
in the face he received from a Philadelphia cop when he was fourteen
years old for his membership in the Party. In fact, he became one of
the founding members of the Philadelphia chapter at the age of fifteen.
As Mumia tells it, he and three other "Afro-headed" youngsters went
to a George Wallace rally, insanely yelling "black power" amidst a sea
of rednecks. Attacked by upward of ten burly men, Mumia and his
ebullient friends tried to summon help from the police. Here's how
Mumia describes what happened next: "[A] cop saw me on the ground
being beaten to a pulp; [he] 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."

Mumia was precisely the type of black youth that the Panthers
sought in their efforts to erect a militant left-wing organization. The
Panthers were unabashedly Marxist, blending the revolutionary zeal of
Franz Fanon with the communist doctrines of Mao Tze-tung. In the
years leading up to Mumia's entry into the Black Panther Party, black
radicals were presented with two paths to black empowerment: one
provided by the Student Nonviolent Coordinating Committee (under
the leadership of Stokely Carmichael) and the other by Huey Newton's
Panthers. SNCC veered in the direction of black separatism,
rooted in the belief that black empowerment could only thrive outside
the hegemony of white influence. On the other hand, Newton rejected
the whole notion of separatism; instead, he felt that the Panthers
would become a vanguard of the left generally, and as such, they could
lead oppressed people of all stripes to genuine revolutionary socialism.
Whereas Carmichael aroused crowds with the chant "Black Power!"
the Panthers invoked the slogan "All Power to the People" -meaning,
power to oppressed people everywhere. SNCC and Carmichael appealed
to the college crowd; Huey and the Panthers appealed to the
urban ghetto youths.

Mumia (along with his twin brother Wayne) was born in Philadelphia
on April 24, 1954. By Mumia's own account, his pre-Panther
years were "absolutely unremarkable." He grew up poor in a housing
project in north Philly, one of five boys and one girl born to Edith
Cook. His father died when he was twelve, but his mother-who by
all accounts was a remarkably strong woman-maintained a tight-knit,
loving, and spiritually nurturing household. Mumia took to religion
as a youngster, becoming a student of religious texts while others read
comic books. In fact, people who remember Mumia as a child uniformly
characterize him as a lover of books and gifted with words.
The poet Wordsworth observed that "the child is the father to the
man." Mumia the man is very much the offspring of Mumia the child.

Edith named her son Wesley. Wesley Cook took on the more
evocative name Mumia Abu-Jamal not so much in a moment of
epiphany bur over time during the self-exploratory years of adolescence.
In many ways, Wesley Cook grew into Mumia Abu-Jamal, with
the change in name reflecting a change, a birthing, of a new consciousness.
It started in a high school class taught by a teacher from
Kenya. In a modest effort to broaden the horizons of the students
beyond the suffocating confinement of urban existence in the projects,
this teacher gave Swahili names to his students. Somehow, whether
by happenstance or design, Wesley Cook was dubbed Mumia. Free
spirited by temperament and captivated by the notion that he could
be liberated from the name given to him at birth (actually a difficult
thing to do, psychologically and emotionally), Wesley Cook took a
liking to the name, not coincidentally at a time when he took a liking
to the liberation themes of black empowerment rhetoric.

The name Abu-Jamal came about later. Mumia's firstborn son was
named Jamal. Abu-Jamal is Arabic for "father of Jamal." Hence, Mumia
Abu-Jamal, a Swahili and Arabic combination.

Joining the Black Panther Party in May 1969, Mumia quickly
impressed with his intelligence and his instinctive need to communicate.
At fifteen, he became the Philadelphia chapter's minister of
information. It was his job to issue written status reports on the Philadelphia
chapter to the Oakland headquarters, which would then be
published in edited form in the national Panther journal, Black Panther-
Black Community News Service. Mumia dove into the assignment,
and took enormous pride (which he still carries to this day) in the
journal's wide international circulation. It seemed to him that journalism
was in his genetic makeup, something that he had no choice
but to do. Mumia was so taken by his foray into journalism that he
increasingly resented conventional schooling as an encroachment upon
what he regarded as the truly transcendent work of the Panthers. He
dropped out of high school, briefly it turns out, to work full-time as
a journalist. The precocious teenager soaked in the experience, traveling
and working in New York and the Bay Area when not typing
away in the Panther offices in Philadelphia.

Mumia, of course, didn't know it at the time, but considerable
COINTELPRO attention was focused on the Black Panther-Black
Community News Service. FBI headquarters in 1970 observed that "the
BPP newspaper has a circulation of ... 139,000. It is the voice of the
BPP and if it could be effectively hindered, it would result in helping
to cripple the BPP." [9] The New York FBI office endorsed the sentiment:
"[the FBI] realizes the financial benefits coming to the BPP
through the sale of this newspaper. Continued efforts will [therefore]
be made to derive logical and practical plans to thwart this crucial
BPP operation." [10]

FBI files, almost a thousand heavily redacted pages of which have
thus far been disclosed, indicate that Philadelphia and federal authorities
took an interest in Mumia even before he officially became a member
of the Panthers. Reflective of the thoroughness oflaw enforcement's
surveillance of political activists, the name Wesley Cook appeared in a
1968 surveillance report, documenting Mumia's arrest at the pro-
George Wallace rally mentioned earlier. The interest intensified, of
course, when this young, impassioned high school kid assumed a prominent
role in the Philadelphia chapter of the Black Panther Party. Perhaps
comparing Mumia to typical suburban adolescents, surveillance
officers didn't know quite what to make of this young teenager's commitment
to radical politics. It was enough, however, to provoke security
concerns, as this entry in an FBI document illustrates:

In spite of the subject's age (fifteen years) Philadelphia feels that
his continued participation in BPP activities in the Philadelphia
Division, his position in the Philadelphia Branch of the BPP,
and his past inclination to appear and speak at public gatherings,
the subject should be included in the Security Index.


Mumia's writings, his whereabouts, his interpersonal relationships,
his speeches-all became part of the security databank of the municipal
and federal government. Law enforcement agencies never detected
any criminal activity on Mumia's part, only a dedication to the Panther's
goals, which essentially boiled down to black empowerment.
But he was never far from the minds of those responsible for "domestic
security" (the justificatory language of COINTELPRO). Indeed, on
at least two occasions, Mumia, without his knowledge, came under
quick suspicion for involvement in at least two homicides (though
never arrested), later attributed to the overtly violent Black Liberation
Army, only to be removed from suspicion upon ironclad proof that
he could not have been involved.

Mumia reduced his involvement with the Black Panther Party in
1970 to return to Benjamin Franklin High School. Confident and
thoroughly politicized, Mumia quickly led a student movement to
change the school's name to Malcolm X High School. School officials
balked at the demand, but Mumia acquired a grudging respect among
the adults as an articulate and charismatic leader.

Mumia's experience in the Black Panther Party planted the seeds
of activist journalism that have flourished ever since. Mumia began
his broadcasting career, after attending Goddard College, at a Temple
University radio station, WRTI-FM, where he did a commentary
show on black affairs until 1973. Two years later, Mumia became a
popular presence on station WHAT, airing broadcasts on a coveted
morning show spot. Politics was always a part of Mumia's journalism,
just as it was an integral part of his work ethic. So it is not surprising
that Mumia left WHAT after he led an employment grievance-related
walkour with other station employees.

Mumia then briefly went to WPEN, only to move over to WUHY
as a reporter and a commentator in July of 1979. It was as a WUHY
reporter that people began to take notice of Mumia as a fixture at city
hall. Mumia understood what Rizzo was all about, and he understood
the dynamics of racial oppression in Philadelphia. His news reports
typically focused on the victims of that oppression, highlighting stories
dealing with housing, prisons, education, and poverty. But what set
Mumia apart was not so much the subject matter of his journalism,
or even the passion he brought to his craft. His news pieces were not
grandiose diatribes against the white power establishment, or embellished
left-wing critiques on municipal politics. They dealt, more often
than not, with small stories involving real people with real pain within
a real city with a really nasty government. It was the small stories that
illuminated the bigger picture of Philadelphia's racial polarization.
People in the marginalized communities listened to Mumia because
his stories lent a dignity to their lives by giving voice to their frustrations
and by simply acknowledging that they existed. Mumia had a
keen understanding that indifference suffocated the human spirit.
Feelings of isolation among disenfranchised poor people demoralized
them and etched a path to alcohol and drug abuse, violence, and
crime. Human connectedness, to this day, is a recurring theme in his
writings. It didn't take sitting in a tiny cell on death row, twentythree
hours a day, for Mumia to appreciate the importance of human
contact.

His journalism colleagues listened admiringly because he had a
resplendent gift to enliven a story with drama and vividness, and did
so with seeming effortlessness. He had the rare ability to draw pictures
with words and evoke emotions with his voice. Mumia had a way of
speaking that cut through cognitive barriers, disengaged intellectualisms
that stood in the way of true understanding, and induced people
to feel. A Bob Marley song says, "He who feels it, knows it." Mumia's
gift as a journalist operated on that insight.

Mumia's ability to tease out the drama in a story with remarkable
prehensile sensibility, and then to weave the facts together with his
mellifluous voice, led to the now-famous encomium "voice of the
voiceless." His journalism led to numerous awards and citations, including
one from the Society of Professional Journalists. He became
president of Philadelphia's Association of Black Journalists in 1980,
and in January 1981, he was identified by the Philadelphia Inquirer
as one Philadelphian to watch, because his "eloquent, often passionate,
and always insightful interviews bring a special dimension to radio
reporting."

Yet as Mumia sat there in the predawn hours of December 9,
1981, slumped on the curb next to the front right bumper of his
brother's beat-up Volkswagen, blood oozing out of his chest and soaking
his shirt, he was a criminal suspect in a brutally vicious murder
of a cop; a man who arrived in that seedy side of Philadelphia at an
hour when most respectable folks are tucked away in bed because he
was moonlighting as a cab driver; a man who drove a cab because his
career as a journalist, a remarkably promising career, was at a crossroads.
Fired at radio station WDAS because his journalism was perceived
to be growing more tendentious and biased, Mumia began
driving a cab to support his family. Beset by marital difficulties and
financial strains, Mumia grew more distant from his professional col-
leagues. They knew that Mumia had taken on the dreadlocked hairstyle
associated with the much-maligned and much-misunderstood
Philadelphia black radical group MOVE, but they didn't know why.
They knew that Mumia wrote stories about MOVE with heartfelt
sympathy and with an increasingly overt alliance to its tenets, but they
didn't understand why. They didn't understand, and certainly didn't
approve of, Mumia's selling of MOVE-published newspapers in the
city hall pressroom. People began to wonder: What's up, Mumia?

***

The MOVE organization-the name shortened from Christian Life
Movement-surfaced in Philadelphia during the early 1970s. It arose
largely through the teachings of an enigmatic, self-taught carpenter
named Vincent Leaphart. Inspired by the spiritual precepts and dietary
regimen of a religious sect known as the Kingdom of Yahweh, Leaphart
developed a worldview that, at first blush, seemed innocuous.
Immediately identified by their dreadlocks and their adopted surname,
Mrica (Leaphart became John Mrica), MOVE members quickly went
from items of curiosity to curious threats to the status quo. MOVE
was described by most so-called mainstream journalists as a back-tonature
cult, a terse description that captures a certain essence to the
group, as it billed itself as devotees of a simplified, more life-affirming
mode of living. According to a MOVE statement,

MOVE's work is to stop industry from poisoning the air, the
water, the soil, and to put an end to the enslavement of liftpeople,
animals, any form of lift. The purpose of John Africa's
revolution is to show people through John Africa's teaching, the
truth, that this system is the cause of all their problems (alcoholism,
drug addiction, unemployment, wift abuse, child pornography,
every problem in the world) .and to set the example of
revolution for people tofollow when they realize how they've been
oppressed, repressed,duped, tricked by this system, this government
and see the need to rid themselves of this cancerous system as
MOVE does.


John Africa's devotion to simplicity and his deep skepticism of
science and technology had a certain seductive charm. "Science is a
trick," he intones in his tract, The Teachings of John Africa, which
MOVE members regard as a sacred text. "Man will see the air and
build a fan, see the sun and invent a light bulb, see a bird and build
a plane. He will duplicate, copy the principle of life rather than DO
AS, be like the principle of life." This advocacy of touching Mother
Nature in the raw, unmediated by "duplicate" devices, translated, in
practice, into eating only raw foods, eschewing even the extermination
of cockroaches and urban vermin, and disavowing the use of soap and
modern-day plumbing. Others in the Powelton Village community
where MOVE took root, not surprisingly, were hardly enchanted with
this back-to-nature ideology.

In a 1996 interview, Mumia described MOVE as a "family of
revolutionaries, of naturalist revolutionaries ... who oppose all that
this system represents." Just as his journalism colleagues back in the
late '70s didn't understand his affinity for MOVE, Mumia didn't
understand the generalized and intense antipathy felt by most Philadelphians
toward its members. "They are the beginning of a movement,"
Mumia announced to colleagues in 1979, "anyone with eyes
and perception can see that."

"What I found," Mumia explained in that 1996 interview, "were
idealistic, committed, strong, unshakable men and women who had a
deep spirit-level aversion to everything this system represents. To
them, this system was a death system involved in a deathly war. To
them, everything this system radiated was poison-from its technological
waste to its destruction of the earth, to its destruction of the
air and water, to its destruction of the very genetic pool of human
life and animal life and all life." [11]

Mumia's sympathies for MOVE reflected not only his affinity for
its underlying doctrines of simplicity and spiritual awakening but also
sprang from Mumia's awareness of Rizzo's iron-fisted racist rule over
Philadelphia. Mumia's disgust over Rizzo's infectious racism was
shared by a growing segment of Philadelphia as early as 1978. Rizzo
ran a blatantly racist reelection campaign in 1978 ("Vote White" was
one campaign slogan), which failed to resonate as forcefully as it once
had with the white citizenry. Philadelphians grew impatient with
Rizzo, as his heavy-handed tactics, which were once grudgingly tolerated
by many well-to-do citizens, did not lead to significant
reductions in the crime rate, as he had promised. Moreover, the indiscriminate
use of deadly force and lesser forms of police abuse
against minorities began to disturb many Philadelphians.

In fact, revelations of police abuse even caught the attention of
the Department of Justice. Hearings were held in 1979, an unprecedented
occurrence, where witnesses described rampant brutality, massive
cover-ups, and suppression of evidence of police abuses. Business
leaders testified that they had entered into a Faustian pact with Rizzo:
police abuses would be tolerated on the promise that the business
climate would improve by virtue of a declining crime rate and a subjugated
minority community.

The federal government hearings substantiated and reinforced the
view of many in Philadelphia that the city had become a virtual police
state, which had led to dangerous levels of racial polarization. The
escalation of racial tensions provoked ever greater demands by progressive
political groups for social justice, which in turn prompted
Philadelphia cops to resort to even more draconian police methods.
It was a vicious cycle that the Department of Justice sought to break.

On August 13, 1979, the Justice Department filed a lawsuit
against the city of Philadelphia, Mayor Rizzo, and over a dozen top
city and police officials. The essence of the suit was the charge that
the city and its municipal leaders condoned systematic police brutality.
Never before in U.S. history had an entire city police department been
accused of violating civil rights of its residents, not only through outright
physical brutality but by the crudest of Orwellian methods of
surveillance as well. The suit was never litigated, however. A federal
judge dismissed it, not because evidence was lacking but because the
federal government lacked the authority (the legal concept is termed
"standing") to institute such a suit. The outcome, however, was, in a
significant sense, beside the point. The actual point was made loudly
and clearly by the mere filing of the suit. Philadelphians took notice.

***

True to form, Philadelphia law enforcement couldn't avoid conflict
with the MOVE organization. From 1974 to 1976, Philadelphia police
arrested MOVE members some four hundred times for offenses
ranging from disturbing the peace to illegal weapons possession. The
police had an "unconcealed disgust and contempt" for MOVE members.
[12] According to journalists John Anderson and Hilary Hevenor:

By September of 1976, there were reports that John Africa had
decided to abandon the course of peacefUL resistance. Leaphart,
one newspaper article noted, had 'told his fOllowers to prepare fOr
a showdown with police. ' And so it was about this time that
MOVE members began doing calisthenics, practicing boxing and
martial arts, and most ominous of all, stockpiling weapons and
ammunition. [13]


Things began to come to a head in May 1977, arising from the
city's desire to rid itself of MOVE. According to city officials, people
living in the Powelton Village section of west Philadelphia, a middleclass
black neighborhood of row houses, complained about the sanitary
conditions of the MOVE compound and the noise coming from
MOVE members' use of a bullhorn to disseminate their diatribes
against "the system."

When verbal threats and warnings did nothing to frighten them
into submission, the police department, on August 8, 1978, resorted
to a bulldozer. They tore down the barricades and knocked out the
windows of the MOVE headquarters. About twenty officers then
rushed into the tattered communal residence, ready to open fire. They
found the first floor empty of people. They soon discovered that the
MOVE members, disoriented and fearful for their own lives and the
lives of their children and their animals, had taken refuge in the basement.
Firemen unleashed their hoses in an attempt to flood the basement
with water; smoke was also blasted into the confined space. The
Stakeout officers then opened fire on the trapped MOVE members.

News photographers captured images of desperate women trying
to climb out through a basement window with children in their arms.
With bullets whizzing, compounded by the ricochet of the bullets
emanating from uncontrolled gunfire, the police assault on the compound
never acquired any semblance of order or logic. It descended
into chaos virtually at the moment heavily armed Stakeout cops entered
the building.

Authorities claimed that the wild shootout had been started by
violence-prone MOVE members, which resulted in the death of one
police officer and the injury of a dozen others. Police Officer James
J. Ramp, fifty-two years old and one of the "old men" of the Stakeout
Unit, received a single gunshot wound (exactly where was a subject
of intense dispute), killing him.

Ramp had earned the right to end his career sitting behind a
desk, but he had been drafted into the MOVE assignment. Ten
years removed from actual street police duty, Ramp didn't even
know how to put on his blue riot helmet when he was dispatched
to Powelton Village. "I've been off the street so long, I don't know
what to do anymore," he joked as his helmet rested backward on
his head.

Enraged by Ramp's death and convinced that the bullet came
from a MOVE gun, Stakeout cops seized MOVE leader Delbert Africa
as he tried to surrender and beat him unmercifully. Their frenzied
rage left them unconcerned over the fact that news photographers
captured the brutality on film.

After the dust settled, eleven MOVE members were arrested. A
press conference in city hall later that afternoon provided the platform
for Police Commissioner Joseph O'Neill to excoriate MOVE
for the Ramp killing. Mayor Rizzo then cursed reporters, blaming
the Philadelphia Inquirer in particular for helping to create a climate
for this sort of disaster. "Every week in your goddamn newspaper,
every weekend, they have headlines in your paper about policemen
did this, did that, murder, murder, murder. ... That's what's wrong
with this city.... You're destroying it. The people you represent are
destroying it." Pointing to the death of Officer Ramp, Rizzo ex-
claimed that it showed the need to restore the death penalty in Philadelphia.
"Put them in the electric chair," Rizzo hollered, "and I'll
pull the switch!"

It wasn't only the top brass who expressed outrage over Ramp's
death. The prevailing sentiment among officers, as one police officer
described it, was that the Stakeout Unit "should have killed all of
them." Another officer told a reporter that MOVE members wanted
violence so that "those animals will become martyrs." The malevolence
lingered for years, as the Ramp killing became a rallying cry for Philadelphia
cops in their vendetta against MOVE and their distrust of
blacks generally. The tragic and highly publicized 1985 bombing of
the relocated MOVE compound on Osage Avenue, leading to the
death of John Africa and ten other MOVE men, women, and children,
can only be understood against the backdrop of the 1978 siege on
MOVE's Powelton Village compound. Many of the older cops involved
in the police action in 1985 distinguished themselves from
other younger cops with the title "'78 veterans." The war against
MOVE continues to this day.

In the trial of the MOVE Nine, the arrested MOVE members
were convicted in the shooting death of Officer Ramp and sentenced
to prison for thirty to one hundred years (two others were separately
tried-one was convicted, the other acquitted after renouncing her
MOVE affiliation). The trial was an ordeal-a harbinger of Mumia's
trial-with acrimonious exchanges between judge and defendants
leading to frequent expulsions from the proceedings. The trial judge,
sixty-eight-year-old Edwin S. MaImed, a conservative white man with
a penchant for gentlemanly rectitude, loathed the convicted defendants.
"In my opinion," he said before pronouncing sentence, "any
thought of rehabilitation of these defendants would be absurd. They
have persisted in setting their own bizarre codes of conduct without
regard for the laws of the Commonwealth or the rights of others, and
I don't think their attitudes will change."

As an aside, three Stakeout Unit officers who beat Delbert Africa
in front of television cameras and still photographers were also put on
trial. Judge Stanley Kubacki dismissed the charges at the close of the
prosecution's case. "Philadelphia is bleeding to death because of the
MOVE tragedy," he said.

One of the reporters covering the MOVE Nine trial was Mumia
Abu-Jamal. A day after the sentences were handed down, the trial
judge appeared on a local radio talk show. A caller came on the line
and asked the judge, "Who shot James Ramp?" The judge admitted
that he had no idea. That caller was Mumia.

Mumia had no way of knowing that his frequent attendance at
the MOVE Nine trial, and his manifest sympathy for the group
(graphically demonstrated by his new dreadlocks), would come into
play a few years later in his own legal predicament. The courtroom
for the MOVE Nine trial was always filled with cops, as the trial
moved along from December 1979 to May 1980, with overt hostilities
expressed against those attending in sympathy with the defendants.
Mumia was among those repeatedly harassed by police inside the
courtroom and out in the corridors of that temple of justice.*

***

The first officers at the scene of the Faulkner shooting, a year and
a half after the conclusion of the emotionally heated trial of the
MOVE Nine, were two Stakeout Unit cops. Mumia was a well-known
ally of MOVE to police officers and officials who were '78 veterans
still angered by the Ramp shooting. Witnesses observed officers beating
Mumia at the scene before putting him into a police van. With
law enforcement officers predisposed to believing that Mumia, a perceived
member and/or ally of MOVE, had just killed a brother officer
in cold blood, the question naturally arises: What were they capable
of doing to make sure that evidence at Mumia's trial would exist to
ensure that "justice for Danny" would be done? What would angry
cops do to execute justice?

_______________

* For complete accounts of the MOVE tragedy in Philadelphia, see Boyette, Let It Burn! The
Philadelphia Tragedy (New York: Contemporary Books, 1989); Paolantinio, Frank Rizzo, The
Last Big Man in Big City America (New York: Camino Books, 1993); Harry, Attention, MOVE!
This is America!; Anderson and Hevenor, Burning Down the House: MOVE and the Tragedy of
Philadelphia (New York: W. W. Norron, 1987).
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:10 am

I know there are certain cases that have
explosive tendencies in the community. And
this is one of them.

-- JUDGE PAUL RIBNER


4. CONSTRUCTING GOOD VERSUS EVIL

A trial is a frightening event.

Those who have never experienced courtroom combat tend
to view trials as nothing more than a highly structured mechanism to
resolve conflict. Resolving conflict undoubtedly expresses the fUnction
of a trial-the imposition of order on conflict, the chaining down of
passions with reason, the rectification of legal wrongs. But to a dedicated
trial lawyer, a trial is always a battle between good and evil
fought on a terrain of bleak emotions. The trial lawyer must tap into
the harsh emotional core of a case, find its deepest human elements,
and then construct a strategy to place his client's cause on the side of
good, or at least, in opposition to evil. In a criminal case, the prosecution
comes into the process presumptively on the side of good and
the defense lawyer on the side of evil. A major hurdle for the defense
is turning the tables.

Tapping into the emotional core of a case necessarily involves
getting inside the emotional universe of one's client, and to the extent
possible, that of the other major players in a case. In so doing, the
trial lawyer risks exposing the deepest regions of his own dark side, of
his own sorrow, distress, and anger, because these and other emotions
are the human elements of virtually every criminal trial. To do a trial
right, a trial lawyer must have the courage to explore his own innermost
being in order to truly understand, and then to effectively communicate
to the audience of twelve, the forces at work in the human
drama that led up to the dispute being litigated in the courtroom.
Because when it comes time to represent the client in this civilized
form of combat, the trial lawyer must communicate to the jury in an
authentic way, from a vantage point of genuine understanding and
empathy. If the jury sees the trial lawyer as nothing more than a
mouthpiece, a person who will use words only to manipulate rather
than to reveal deeper truths, then the jury will never trust that lawyer;
and without trust, there can be no truthful communication; and
without truthful communication, there can be no persuasion. Moreover,
when the trial lawyer engages the trial process as an authentic
person, when he presents his case as if it somehow is an exercise in
his own self-awareness, a project of self-knowledge, the jury cannot
help but become enraptured by the drama that underlies the dispute.
Every trial, because it is rooted in conflict, is a drama that has the
ingredients to captivate. And all good drama is self-revelatory.

The process of getting inside the emotional core of a case so as
to transform it into your own client's battle of good against evil, and
of arriving at that crucial point of authenticity in a trial, begins the
moment the client enters the trial lawyer's life.

***

Unfortunately, capital defendants are often defended by shockingly
incompetent lawyers. Some have been known to sleep through parts
of the trial; some have showed up drunk, high, or hungover; some
have spoken ill of their clients, virtually inviting the jury to execute
them; some don't even speak on their behalf at all. Few try to understand
the client. In Texas, a model jurisdiction for advocates of
government-run death machinery, lawyers jokingly refer to the "mirror
test" as the barometer for determining whether a defendant has been
denied constitutionally adequate counsel. If you put a mirror underneath
the nose of the attorney and it fogs up, the constitutional requirement
of effective assistance of counsel has been satisfied.

Anthony Jackson, Mumia's court-appointed lawyer, was far from
the bottom of the barrel. He was admitted to the bar in July 1974, after
graduating from Temple University's law school. Before law school, he
had worked in the Philadelphia police department as an evidence technician,
storing crime scene evidence for possible use at trial, photographing
crime scenes, and conducting fingerprint tests. He also spent a
few years working as an investigator for the public defender's office and
for private criminal law practitioners. At the urging of a local criminal
defense lawyer (who, by coincidence, handled Mumia's appeal after his
trial), Jackson applied to law school. He entered into his legal training
well suited to the rough-hewn world of criminal law.

One of the few black law school graduates in Philadelphia at the
time, Jackson took his first job as a prosecutor with the Philadelphia
district attorney's office. He became a prosecutor somewhat reluctantly.
While in law school he took a criminal law seminar taught by
Arlen Specter (later to become a U.S. senator), and he submitted a
paper dealing with the scarcity of black prosecutors in the United
States. As a result of that paper, Specter invited him to join the district
attorney's office in Philadelphia. According to Jackson, "it was probably
the last place I thought of working, but I guess to some extent I
was a little bit embarrassed about it so I did take the job." Jackson's
heart, however, was never in the work. He didn't have the prosecutorial
mind-set that admires orderliness over compassion, accountability
over empathy. Prosecutors disdain excuses, scoff at human
weaknesses, and treasure the slippery notion of individual responsibility.
Jackson naturally leaned toward the underdog and empathized
with the frailties of the human heart. He was compassionate by nature,
given to exhibitions of emotion at the drop of a hat-not qualities a
district attorney wants in young prosecutors. "I didn't like prosecutors,"
Jackson bluntly admits. He was a prosecutor for only six
months.

After a few years working to reform the Philadelphia prison sys-
tem, Jackson took a job in 1978 with the Public Interest Law Center
of Philadelphia (PILCOP), an organization dealing with, among other
things, police brutality in Rizzo's Philadelphia. "It was funded by the
Law Enforcement Assistance Administration," Jackson explained in
court testimony in 1995. "It was specifically funded to explore avenues
of increasing police-community relations; ... we were trying to create
an avenue for citizens here in Philadelphia to file complaints and have
them meritoriously examined." In fact, Jackson, who became the director
of PILCOP, was actively involved in the grassroots work behind
the Justice Department lawsuit filed against the city of Philadelphia,
Mayor Rizzo, and others.

Well-known as an active player in the fight against police abuses
in Rizzo's Philadelphia, Jackson had been approached by concerned
friends of Mumia to visit him while he was recuperating in the hospital.
He didn't know if the visit would lead to an attorney-client
relationship; he didn't actually consider it seriously, as he was still
with PILCOP and had not yet set up an office for private practice.
As it turned out, because Mumia was in no condition to seek out a
lawyer himself, and because the arraignment on the murder charge
was to happen within a day or so, Jackson accepted an appointment
from the court to handle the case.

There was no mistaking it: Jackson was overwhelmed with burdens
when he took on Mumia's case on December 12, 1981. Having
been out of private practice for three years, he didn't have file cabinets
filled with case files. In fact, Mumia's slim file was one of the first
cases he acquired, and he had a "Mumia" file even before he had an
actual office. It took Jackson over a month after taking on the appointment
to set up an office. With no money coming in, no office
support, and unaware of what he was getting into, Jackson was destined
to hit stormy weather right from the beginning.

***

Jackson straightened his tie as the elevator made its way to the sixth
floor of the city hall building. There would be television cameras in
the hallway, he figured, and he wanted to look presentable. He had
not dived into the case as of yet-too busy setting up an office and
scrambling for new business-and his client was still recuperating
from his injuries. A month had not yet passed since the killing of
Officer Faulkner. Jackson was not without a plan for the morning's
court appearance, however. He had a client who claimed he was brutalized
by police; the first order of business, he concluded, was to
document those injuries in the court record.

He stepped out of the elevator, walked down the hall, turned the
corner and headed toward Courtroom 613. The camera lights beamed
in his direction as he moved closer to the entrance door, but he waved
the reporters away. There would be time enough for talking with them
later. The court clerk had been waiting for him. The prosecutor, Joseph
McGill, was already present, sitting at the prosecutor's table
thumbing through a sheaf of papers. Jackson greeted his adversary in
his customary friendly fashion, and the two talked brieRy at the railing
separating the spectator section from the well of the courtroom where
the combatants duel over truth and justice. McGill was considerably
taller than Jackson, with gray hair, a penetrating stare, and an aristocratic
bearing. His salt-and-pepper mustache dominated his long,
narrow face, giving him a severe look. He casually remarked that, for
the time being at least, Mumia's brother would be a codefendant in
the case, although he was not charged with the homicide. Jackson had
not known that.

"Step up, Mr. Jackson," the judge said in a friendly tone. He then
directed his clerk to call the case.

"This is the Commonwealth versus Wesley Cook, aka Mumia
Abu-Jamal," the clerk announced, placing an exaggerated accent on
the second syllable to Mumia's name. [i]

"Good morning, Your Honor," Jackson said. ''I'm appearing for
the defendant, Wesley Cook."

"Your Honor, we're prepared to proceed with the preliminary
hearing," McGill quickly announced. A preliminary hearing is a pro-
sufficient evidence (probable cause) to detain the defendant for trial.

Jackson did a double-take. What preliminary hearing? He quickly
stammered through an explanation that his client remained in the
hospital, having sustained, aside from a gunshot wound, "injuries all
about the body," including contusions and lacerations. He told the
judge he wanted photos to document those injuries.

Judge Paul Ribner, a rugged, tough-talking criminal court jurist,
wasn't interested in exploring Jackson's request. He wanted to know
if Jackson was ready for the preliminary hearing. Usually the preliminary
hearing is a routine matter, with the defense attorney playing
little or no role other than to gather as much information as possible
for eventual use at trial or as an aid to conduct an investigation.
Jackson was, nonetheless, not prepared to handle a preliminary hearing.
It was a Tuesday. He had mistakenly thought that the preliminary
hearing was scheduled for that Friday, January 8. On top of that, he
told Judge Ribner that he wouldn't be ready on that day either, because
he had scheduled another matter to attend to in Manhattan.

After having spent the past three years doing civil litigation, Jackson
had forgotten about the rigors and pacing of criminal defense practice.
In civil litigation, a month is a blip in time; in capital litigation, where
immediate investigation is key to putting together a defense, a month
of inactivity, especially if it is the first month after the commission of
the crime, can be cataclysmic. Witnesses can be lost, stories begin to
harden, crime scene evidence is used up in laboratory testing. Homicide
investigators are already deep into the investigation well before
a criminal defense lawyer even meets his client. The first month in a
murder case for a defense lawyer is catch-up time.

"Well, this is the kind of case you want to keep on top of," Ribner
cautioned. Not at all pleased with Jackson's ill-preparedness, Ribner
insisted upon proceeding on the eighth.

Expecting that the judge would accommodate his scheduling conflict,
Jackson was caught flatfooted. 'Tm now finding out that this
matter is listed for the eighth and I am now told today for the first
time, for the very first time, that there's a codefendant in the case."

"You are a smart defense lawyer, Mr. Jackson," Ribner chided.
"But when you tell me that you didn't know there was a codefendant
in this matter-well, all I can say to you is you'll have to spend a
little more time on this case. Check it out, before you get to a hearing
in this matter." The judge leaned forward and looked squarely at
Jackson. "You have a big murder case here, and you'll have to keep
on top of it. Because this case is going to get a lot of exposure in the
community." Ribner could see that the courtroom was divided down
the middle, white faces on one side of the aisle, and black faces on
the other. "I know there are certain cases that have explosive tendencies
in the community. And this is one of them." He had no idea
how prescient those words would become.

On Friday morning, Jackson rushed out of his house to get to
court on time, not wanting to irritate Judge Ribner further. He arrived
in Courtroom 613 and discovered that his rushing was in vain because
Ribner wasn't presiding over the preliminary hearing. It would be
Judge Edward Mekel, a far more laid-back jurist. That wasn't the only
surprise for the morning. He went into the lockup to talk with Mumia
and found him dressed in a white hospital gown. Mumia had fallen
ill the night before and had to be taken to the hospital. He was
brought to city hall directly from the hospital. Jackson knew that
Mumia would not be forced into appearing in open court wearing
only the gown. He was about to get his first lesson about his client.

Mumia had been offered prison clothes to permit him to appear
in open court. Mumia was adamant: no prison clothes in court. Prison
guards informed Judge Mekel of Mumia's refusal to accept prison
garments. Agitated, Judge Mekel nonetheless avoided a power struggle
with Mumia. Instead of suspending the proceedings for the day or
forcing Mumia to make the choice of foregoing attendance at the
preliminary hearing or acquiescing on the issue of prison garb, he sent
the sheriff to a local store to buy clothes for him so the proceedings
could begin without unnecessary acrimony. Rumors circulated among
the reporters that McGill gave money to the sheriff for this unusual
shopping spree.

Four hours later, Mumia entered the courtroom wearing brown
pants and a brown plaid shirt. It wasn't his style of clothing, but the
sheriff wasn't interested in fashion when he bought them. Mumia took
a seat next to his brother. It would be the last time the two brothers
would ever sit next to each other. Billy Cook adored his older brother,
looking upon him with a fond reverence because Mumia, unlike himself,
seemingly had a bottomless reservoir of God-given talent and a
trajectory to his life. Cook discarded his first name and began calling
himself Wesley after Mumia ceased using the name. Cook told his
lawyer that he used the name Wesley out of love and admiration for
his brother.

Cook stared blankly at the wall behind the judge. Mumia sat with
his usual posture, slightly bent forward and chin resting against clasped
hands, as if listening to an interesting story. But the story was not one
that pleased Mumia, or his brother for that matter. Cynthia White
was on the stand-the first witness called by the prosecution in the
preliminary hearing.

Maureen Faulkner sat in the front row, crying, as White began
her testimony.

Her testimony was brief-typical for a preliminary hearing. Prosecutors
are reluctant to have witnesses put their stories on the record
before trial. The more times a witness provides details of an incident,
the greater the likelihood that an inconsistency will surface, and inconsistencies
are the lifeblood of criminal defense work. Criminal defense
lawyers seize upon inconsistencies, twirling them in the light like
a jagged crystal to find that perfectly beautiful refracrion of light that
might induce the jury to find reasonable doubt.

White's story at the preliminary hearing was, in its broad outlines,
the story she was to give to the jury six months later. She spoke of
the Volkswagen being pulled over; Billy Cook and Officer Faulkner
walking over to the front of the patrol car; Cook hitting the officer;
and most crucially, Mumia darting from across the street to shoot at
the officer, several times, with the coup de grace as the officer lay
helpless facing the dark December heavens. She claimed never to have
seen any violence inflicted upon Cook, a claim she was to adhere to
at the trial.

Jackson began his cross-examination with the expected goal of
trying to tease out as much detail from White as the judge would
allow. Cross-examination in a preliminary hearing is not really crossexamination
as trial lawyers conceive of it. It is usually a cat-andmouse
game with a judge: the defense lawyer trying to ask as many
questions about the details of a witness's story (that is, to "discover"
information), and the trial judge, prompted by objections from the
prosecutor, looking to keep the questioning confined (that is, to block
discovery). Suggestive of Jackson's early lack of preparation, he mistakenly
referred to Cynthia White as Miss Washington until she summoned
the coutage to correct him. "Excuse me, it's Miss White," she
said meekly. Jackson sheepishly apologized.

The preliminary hearing generated one inconsistency that illustrated
the malleability of White as a witness, which was to become a
major aspect of Mumia's legal struggles later on. White insisted that
Mumia had a gun in his left hand as he scurried across Locust Street
toward his brother. McGill was probably displeased with this description,
as Mumia had a holster on his left side, which would suggest
that he would have grabbed his gun with his right hand (Mumia is
also right-handed). It appears that the difficulty was ironed out, as
White testified at trial that Mumia had the gun in his right hand, not
his left.

When White finished testifying, Maureen slipped out of the courtroom,
still crying.

McGill then called a law enforcement witness to testify, and what
he had to say was undoubtedly significant. Inspector Alphonse Giordano,
a veteran officer in the Rizzo mold who, as a onetime commander
of the Stakeout Unit, despised everything about MOVE,
lumbered up to the witness chair and rested his full frame comfortably
as he waited for the first question. McGill called Giordano to the
stand to establish that Mumia had admitted to the shooting. But
Giordano's testimony about a confession was not the confession that
the jury was to hear about at the trial. Giordano explained that he
entered the police wagon where police officers had placed Mumia. "I
asked him if he was hurt," Giordano explained. "As I opened his coat
up I noticed a shoulder holster under his left armpit that was empty.
I asked him where's the gun from the shoulder holster."

"What did he say?" McGill prompted.

"His response, 'I dropped it beside the car after I shot him.' "

It would be a fair question to ask why Giordano's "confession"
testimony was not later presented to the jury. Prosecutors don't forgo
such damning evidence unless its costs seriously outweigh its enormous
and obvious benefits. The answer to this mystery was to be
answered on the first business day after the trial concluded. On that
day, Giordano was relieved of his duties in the police department,
disgraced by suspicions of corruption. Giordano was later indicted on
corruption charges arising from a highly publicized scandal involving
extortion and financial kickbacks received from prostitutes, pimps,
sleazy bar owners and the like that rocked the Philadelphia Police
Department. The federal investigation revealed he had been receiving
upward of $3,000 a month in illegal payoffs. He ultimately pled guilty
to tax fraud based upon his receipt of these payoffs. Giordano was
tainted goods; McGill evidently couldn't use him at trial.

With these two witnesses establishing probable cause, McGill
rested his case. The defense was under no illusions about the judge's
decision: Mumia would be held over for trial. The next issue was to
be bail.

That bail was even an open question is remarkable. Capital defendants
don't secute bail-at least, they're not supposed to. Jackson
called two witnesses at the bail hearing. Mumia's mother, Edith Cook,
testified that her son would be staying with her if he could secute his
pretrial release. The other witness was a journalism colleague, Timothy
St. Hill. St. Hill had known Mumia for fifteen years and was the one
who nominated him to be president of the Association of Black Journalists,
a position Mumia held in 1981. Thinking bail was out of the
question, McGill didn't feel the need to challenge their testimony.

Judge Mekel thought otherwise. He set bail at $250,000.

There was no way the district attorney's office was going to let
the bail order stand, as miraculous as it was. McGill immediately went
back to his office and slapped together a motion to revoke the bail
order; he then arranged for the placement of the case on the Monday
calendar.

Jackson and Mumia were back in court on Monday, this time
before Judge Ribner. Whatever prompted Judge Mekel to look favorably
upon Mumia would not have that effect upon Judge Ribner, and
McGill knew it. McGill had no doubt that bail would be revoked
completely by Ribner, and by the end of the day, it was. But one
judge will not simply override another of his colleagues; there has to
be some face-saving rationale to smooth over the bruised egos that
inevitably Bow from one judge's encroachment upon another judge's
exercise of discretion. Understanding this, McGill and Jackson had
witnessed lined up to testify. Judge Ribner made the point very clear
as well: "I am not going to change another judge's order without a
full hearing, that's definite." A hearing, with new witnesses, would
provide the cover needed to override another judge's decision, giving
the whole process a patina of legitimacy.

The district attorney's office was not the only entity bent on getting
the bail revoked. In its first of many acts taken against Mumia
over many years, the Fraternal Order of Police-the FOP for shortdispatched
a telegram to Judge Ribner. The telegram urged him to
revoke Mumia's bail, a highly improper move for obvious reasons.
McGill claimed to know nothing about this communique. Judge Ribner,
for his part, tried to assure the defense that the telegram should
not provoke alarm. "It doesn't affect me," he pledged. "It doesn't
prejudice me toward the sender, will have no effect on anything I do
here."

McGill chimed in: ''I'm sure it will have no effect, Your Honor."

That Jackson had the wherewithal to call witnesses supporting
Mumia's right to bail, when it was patently clear that it was a futile
exercise, was, in retrospect, an oddity in the case. Jackson would hardly
exhibit a fraction of that sort of vigilance later in the trial when it
would have mattered much more. The witnesses Jackson did call were
not typical of defendants accused of killing cops. But Mumia was no
ordinary defendant, that much was clear.

Jackson called several prominent Philadelphians to the stand. State
Senator Milton Street had known Mumia for over ten years when he
was called upon to tell Judge Ribner about his friend's commitment
to social justice and community renewal. Mumia was highly sensitive
to Philadelphia's delicate racial affairs, Senator Street explained, and
he was one of the few young black men in the city willing to make
race a topic of public debate. The senator testified that he had "never
known Mr. Jamal to be a violent person."

Jackson called another local politician to vouch for Mumia. Like
Senator Street, State Representative David Richardson was confident
that Mumia would honor his commitment to appear for trial. He had
known him for seven years, often working with him on matters of
community affairs. Representative Richardson echoed Senator Street's
testimony that Mumia was not a violent man.

Although McGill knew that the bail hearing was but a formalistic
prelude to the revocation of bail, he still took the opportunity to crossexamine
the two politicians. McGill's approach to these witnesses provided
a glimpse into his thinking about the motive behind the
shooting of Officer Faulkner, and it foreshadowed how he would pitch
the case to a juty-to the right kind of jury, that is.

McGill wanted to know whether they had read or heard Mumia
make statements indicating hostility toward the police. They hadn't.
McGill broadened the inquiry: had they known that Mumia was a
onetime member of the Black Panther Party? Were they aware of
statements he made while associated with that organization? Had they
ever discussed with him his affiliation with, or sympathy toward, the
MOVE organization? At one point in the questioning of Representative
Richardson, McGill tried to confront him with a quotation
attributed to Mumia contained in a newspaper article. Judge Ribner
cut McGill off. McGill would try again later ... much later. He was
going to use this newspaper article; he was sure of it.

McGill cared little about the answers these witnesses gave; he
couldn't resist making a point, and he didn't want to wait until trial
to make it. According to McGill's way of thinking, Mumia was a
political radical with ties to what he regarded as dangerous black nationalist
groups who had no qualms about gunning down the guard-
ians of a hated "system" that supposedly oppressed people of color
throughout the world. Officer Faulkner was a victim of radical race
politics, no less than was Officer James Ramp. McGill, unlike Jackson,
was getting to the core of the case early, fleshing out the good-versusevil
story he would later tell the jury. He just needed to make sure
that he was going to get the right kind of jury to accept his story line.
Getting the right kind of jury was important, probably the most important
thing McGill had to do to secure Mumia's conviction and
put him on Pennsylvania's death row.

***

The media took a keen interest in the case, unsurprisingly, and that
concerned Mumia. He understood instinctively that jury selection
would be critical. Concerned with having a panel of whites with preconceived
ideas about his dreadlocked appearance, Mumia urged Jackson
to do something to protect the jury pool. In a court appearance
on February 22, Jackson told Judge Ribner that there was a "practical
problem" that had to be dealt with: Mumia didn't want to be photographed
each time he was escorted down the corridor to appear in
court. A onetime courthouse journalist, Mumia understood the power
of those images of him in handcuffs. It would be tough to select an
impartial jury with that image splashed on newspapers and beamed
into the television sets of a curious Philadelphia citizenry.

"It's a circus-type atmosphere," Jackson complained, "and I don't
think it's necessary." If only Jackson knew what was in store.

Jury selection was still months away. A lot had to be done in the
meantime, but those things would have to wait. Like many overburdened
solo practitioners, Jackson had a myopic outlook on his
practice: cases that were months away from trial sat tucked away in a
file cabinet while tasks that should have been completed last week
took up his full attention. He would come up with a defense before
trial; he was sure of it.

To the extent that Jackson ruminated about his strong-willed client,
he thought about prosecution witness Cynthia White. How was
he going to deal with her eyewitness account? Jackson knew there
were other eyewitnesses, but he only thought of White because she
was the only one, as of the winter of 1982, to have taken the stand
and put on the record what she had supposedly seen.

jackson was appropriately suspicious of White, as he knew from
experience that Philadelphia law enforcement had a history of manipulating
prostitutes. He was aware of the talk about police corruption
involving extortion and kickbacks from prostitutes and pimps. In May
1981, the Federal Bureau of Investigation began an undercover investigation
of the interconnection between Philadelphia police and the
city's prostitutes. The investigation, which was highly publicized, focused
on the Sixth District, where the Faulkner shooting took place.
It produced a mountain of evidence revealing deep-seated corruption;
numerous officers (including Inspector Giordano) were indicted, and
many of them convicted. jackson had no way of knowing for sure
whether White was somehow ensnared in this web of corruption.

jackson certainly allowed for the possibility that White, being a
vulnerable young prostitute, had been manipulated to supply damning
testimony, and surmised that she might not be able to identifY Mumia
in a lineup. He had decided to file a motion seeking to compel her
to make that attempt. Searching for some legal hook to justifY a
lineup, he argued that this identification procedure was necessary because
White initially described the man darting across Locust as having
dreadlocks and the shooter having a hat on. According to jackson this
suggested that another person was at the scene, aside from the officer,
Mumia, and his brother. McGill protested. A lineup was unwarranted,
he countered, because the defense could cross-examine White at trial.
judge Ribner then interjected with a curious remark: White wasn't a
pivotal witness, but only "a link in a chain of evidence." McGill said
nothing to correct Ribner, even though, in fact, White was to be the
most pivotal prosecution eyewitness at the trial. The prosecutor didn't
want his witness subjected to a lineup, and that's usually enough for
a criminal court judge. jackson's motion was denied.

Mumia took notice.

_______________

Notes:

i. People often pronounce the name with the accent on the second syllable, thus, 'MuMEEa'.
Mumia himself puts the accent on the first syllable.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:11 am

There can be no equal justice where the kind of trial a
man gets depends on the amount of money he has.

-- JUSTICE HUGO BLACK, GRIFFIN V. ILLINOIS

People with a lot of money are always going to get
better services. But we aren't in the business of
correcting every social problem.

-- PHILADELPHIA JUDGE DAVID SAVITT


5.THE STRUGGLE FOR MONEY

Of the nearly 3,700 inmates on death row today, most were
represented by lawyers with deficient skills in capital litigation
and handicapped by limited resources-a truly deadly combination.

The problem of inadequate resources and counsel in capital litigation
has always coexisted with capital punishment in this country,
first coming into sharp focus in the famous 1932 Scottsboro Boys
case. The American Bar Association conducted an exhaustive study,
published in 1990, of the impact of underfunded counsel on the application
of the death penalty. It concluded, in the cautionary language
customary of elite members of the bar, that "the inadequacy and inadequate
compensation of counsel at trial" was one of the "principal
failings of the capital punishment systems in the states today." [1]

The heart of the problem is money. Prosecutors have it, capital
defense lawyers don't. District attorneys' offices are funded with public
money, and no one bats an eye. Too often defense lawyers with clients
facing death do not even seek out money for experts, either because
they're ignorant of the process or because they have become too jaded
to try. Judges, ordered to be budget conscious and thus looking for
any excuse not to authorize the release of funds, consistently demand
that the defense lawyer explain precisely why an expert is needed. The
defense lawyer, caught in a catch-22, often cannot articulate the need
because he doesn't have the money to consult with an expert to learn
if expert consultation and testimony will be useful in a case. And then
there is the situation where the court grants the defense a sum of
money, but it turns out to be such a pittance that no expert wants to
get involved. God forbid that a lawyer ask for appointment of another
lawyer to help in the preparation of a defense. As death penalry expert
Stephen Bright noted: "Although it is widely acknowledged that at
least two lawyers, supported by investigative and expert assistance, are
required to defend a capital case, some of the jurisdictions with the
largest number of death sentences are still asking only one lawyer to
defend a capital case." [2]

Who gets assigned to handle capital cases is often determined with
money in mind. In death penalty jurisdictions where fairness has not
completely been dispensed with, the state legislature allots funds for
the creation of an indigent defense program equipped to handle capital
cases. New York and California are two such jurisdictions with admirable
staffs of committed and extremely talented lawyers, investigators,
and mitigation specialists. But in too many jurisdictions, and
Philadelphia was one of them at the time of Mumia's trial, judges
simply appoint private practitioners to take on capital cases, regardless
of competence and training. Because the pay is atrocious, and delayed
in coming, typically only the least talented members of the trial bar
make themselves available for capital cases. The court-appointment
method is favored by some jurisdictions because the costs of sustaining
an ongoing office committed to excellent representation is far more
expensive than the episodic payment to private, financially strapped
lawyers.

Judges often look to the least qualified members of the trial bar
to take capital cases-the so-called courthouse hacks who hang out
daily at the criminal courts building. They often shun calling upon
other members of the bar, because they don't want to impose on their
busy lives dedicated to making money. In any event, the reasoning
goes, why not appoint a lawyer who is more than happy to take an
assignment for want of any other legal business?

Anthony Jackson was a quintessential candidate for court appointment
on a capital case. He needed clients and he needed to be a team
player within the Philadelphia criminal justice system in order to survive
economically as a defense lawyer.

***

It was inevitable that Jackson would plead for money. Plead is the
right word. In Philadelphia, like the worst jurisdictions in the South,
money for justice was scarce. Jackson needed to hire an investigator,
a ballistician, and a pathologist, but he could do so only through the
beneficence of stingy, budget-conscious judges working within a
municipality starved for revenues. At the time, the practice in the
Philadelphia courts was to allocate a fee of $150 per expert or investigator,
doling out slightly more on an ad hoc, unpredictable basis.
Under this system, either the defense lawyer had to convince experts
and investigators to provide their services and risk never being paid a
full fee, or the lawyer himself would pay for their services out of his
own pocket and assume the risk that he would never receive full reimbursement.

Jackson cynically regarded the whole process as a sham, and with
good reason. One Philadelphia trial judge, David Savitt, crystallized
the judicial attitude at the courthouse: "People with a lot of money
are always going to get better services. But we aren't in the business
of correcting every social problem." Administrators in city hall made
it clear to Philadelphia judges that money was scarce. Judge William
Manfredi, the onetime presiding judge of the Philadelphia Homicide
Calendar who allocated resources in death penalty trials, described the
judges' job as balancing "the competing interests of quality representation
with the economic situation of Philadelphia." Given Philadelphia's
dire economic straits, the scales were heavily tilted away from
capital defendants, a constituency with no political clout.

***

Jackson's problem with money at this juncture in the case, however,
wasn't only whether he would get paid; it was also a matter of when.
He understood from the complaints within the local defense bar that,
in Philadelphia, court-appointed lawyers often wait rwo years before
their fee petitions are acted upon; and too often their requested fees
are slashed by judges who care little about the economics of law practice.
The same was true for experts and investigators. Word spread
rapidly among forensic specialists that itemized bills collected dust in
judges' chambers for years before a fraction of the total was paid out.
Few experts accepted court appointments in Philadelphia under these
conditions. That was Jackson's problem: he couldn't get any experts
to help him without payment up front, and he certainly was in no
position to pay for the experts himself.

On March 18, 1982-some ninety days after his appointment as
Mumia's lawyer-Jackson approached Judge Ribner for funds to hire
an investigator. Calls were coming in to his office from people who
claimed to have information about the shooting. Jackson claimed that
the calls were too numerous for him to handle. An investigator would
help, if only he could assure payment. Judge Ribner wasn't about to
open up the coffers for Mumia's defense, but he did obliquely assure
Jackson that additional funds would be released after services had been
performed and itemized bills submitted. Jackson never took up the
court's suggestion to get itemized bills because no one was willing to
take the risk of not getting paid.

On April 29, Jackson was back in court pleading again with Judge
Ribner for release of funds so that he could retain an expert, but the
results were the same. Trial was now around the corner, a little over
a month away. It began to dawn on Jackson that he had not prepared
as diligently as he should have. Panic had not yet infiltrated his consciousness,
but that peculiar dread only a trial lawyer understands
began to usurp his mood. There is no place for a trial lawyer to hide
in a courtroom; as with an athletic competition, he triumphs or fails
in the open, and that fact alone is enough to provoke dread over an
upcoming courtroom battle. But here, Jackson also had a man's life
in his hands, a vocal group of Mumia supporters eyeing his performance,
calls coming in from people who claimed to have seen the
shooting, and now, time was becoming a precious commodity. Jackson
needed another attorney appointed to assist him.

"There is a problem in organizing the materials that I have before
me, as well as preparing the appropriate research," he confessed.
"There is a great deal of work to be done, a great deal of information
to be developed, and I have some reservations as to whether or not I
can properly be prepared to go to trial within the next three weeks,
or three to four weeks."

Mumia sat stoically, taking in the fact that his lawyer was asking
for a life raft to keep from drowning.

"Well, you'll have to work harder," Ribner advised.

"I have reams and reams of material to go through," Jackson continued,
bypassing the judge's useless advice. "And that's my problem.
Physically, Your Honor, I can do only so much. As Your Honor well
knows, I do have other trials."

Ribner told Jackson that he would have to juggle his schedule because
Mumia's case would not be delayed. It became apparent that Jackson's
openness about his state of unpreparedness did not prompt the
judge to look for ways to ensure that the upcoming trial would be fair;
rather, it only emboldened him to push for the trial to begin as quickly
as possible, the better to ensure that "justice" would be done.

"I am in the process of reducing my trial load, Your Honor, to
allow me to prepare effectively for this matter." Jackson didn't want
McGill to walk away with the impression that securing a conviction
was going to be easy.

It is virtual malpractice for a lawyer to handle a capital case alone.
"Two lawyers should always work on every capital case," Pittsburgh's
director of the public defender's office testified before the Pennsylvania
State Judiciary Committee. The American Bar Association standards
for capital litigation call for two lawyers in recognition of the unique
demands of a capital case. No corporate law firm representing a fee-
paying corporate client, where mere money is at stake, would countenance
only a single lawyer on any case of magnitude. In fact, a
corporate litigator, even on a modestly complex project, would be
aided by a slew of Ivy League graduates who have taken a scorchedearth
approach to the litigation.

Judge Ribner, however, was not sympathetic. "Well, I don't recall,
in recent years, ever granting additional counsel in a murder case.
Years ago we did. But later on, because of budget problems, we adopted
the procedure of appointing one attorney." The scales, once again,
tilted toward preserving the budget. "So unless there's something startling
about a case, I'm not inclined to grant additional counsel," Judge
Ribner explained.

Startling? Jackson wanted to know what kind of case would fit
within that category, if not this one. Wasn't it enough that the State
wanted to kill his client? Ribner quickly changed the subject, assuring
Jackson that he would be paid for his time: "Keep a careful list of
how many hours you put in, Mr. Jackson."

Ribner either was plain ignorant or simply not listening. Jackson
wasn't talking about getting paid; he was talking about getting help.
He needed help because he faced a seemingly open-and-shut case and
he hadn't interviewed any witnesses personally. With no investigator
working full-time on the case, Jackson was unable to contact the witnesses
identified in the hundreds of pages of police reports. Their
addresses and phone numbers had been redacted and McGill refused
to disclose that information.

McGill wasn't doing anything underhanded in keeping this vital information
from Jackson. He was merely taking advantage of a Philadelphia
criminal justice policy. Jackson complained to Judge Ribner about
it: "The situation is that by virtue of your policy, Your Honor, of not
providing me with addresses, I have a difficult time in locating many of
these witnesses." Jackson also complained about McGill's insisten<;:e
that witnesses didn't want to talk to him in any event. By McGill's logic,
Jackson really didn't need the addresses and didn't need to talk to the
witnesses, because they wouldn't give him the time of day.

Prosecutors generally don't see the value in an investigation by the
defense-at best, it's an annoyance; at worst, it creates the possibility of
frightening off witnesses. Their attitude is, wait for the witnesses to testify
and then cross-examine them; no need to go out and interview them
ahead of time. To prosecutors, who rarely hone their cross-examination
skills (because they are rarely called upon to cross-examine), pretrial interviews
are only calculated to defeat justice by allowing the defense
attorney to get a preview of what the witness will ultimately say on the
witness stand, thereby improving the defense attorney's chances of
twisting the witness's words to suit his client's ends.

Defense attorneys, by contrast, make their living through crossexamination,
and they know that a good cross-examination hinges on
preparation. The idea of a defense lawyer demolishing a witness before
a mesmerized jury with a spontaneous flurry of questions is the stuff
of fiction. Cross-examination is the defense attorney's treasured opportunity
to tell the jury aspects of the story that make up the client's
case. It is absolutely wrong-in fact, it courts disaster-to view it as
an opportunity to ask questions in search of information. A good
cross-examiner will look upon the witness as a mere prop to tell the
story, not as a fount of information. Consequently, pretrial preparation-
which means the acquisition of information-is the key to an
effective cross-examination.

Jackson had a specific reason for wanting to interview the fact
witnesses, aside from its value as a preparatory tool. "In my view there
has already been some intimidation or misleading of the witnesses,"
he announced provocatively. McGill let the statement pass without
rejoinder when he realized Jackson would not amplify on the accusation.

***

For forty minutes on April 29, Mumia stewed as the judge and his
lawyer talked past each other. Mumia was no novice to courtroom
procedure. He had covered the MOVE Nine trial fifteen months earlier
as a sympathetic journalist. He had reported on other court proceedings.
He knew that the Philadelphia justice system was not
committed to ensuring that he would receive the minimal resources
to mount a defense. Judge Ribner's reference to "budget problems"
didn't surprise him. At the same time, he also knew that a trial lawyer
is no magician. He needs information-from investigators and experts-
to attack a prosecutor's case. He'd seen enough to know he
was being railroaded.

"You ought to try the goddamned case," Mumia yelled to Judge
Ribner, perforating the delusion that this particular defendant was
going to acquiesce in an absurd charade. Jolted by the unexpected
verbal eruption, Jackson whispered aggressively to his client, "Mumia!"

Judge Ribner responded quickly, firmly, and in the only way he
knew how: "Sheriff, put handcuffs on him."

Mumia's patience, eroding throughout the morning, had now
given way to a barrage of frustrated outbursts: "That's right, put the
cuffs on. What are you afraid of, Ribner?" The judge ordered the
sheriff to remove Mumia from the courtroom. "You go to hell!" he
blurted out defiantly. "What the hell are you afraid of?"

Supporters who filled the small sixth-Boor courtroom joined in.
One of the spectators stood up and walked into the aisle, yelling that
the court system was "trying to railroad the man, there ain't no justice!"
Meanwhile, Judge Ribner, safely elevated on the bench and protected
by armed court personnel, responded to Mumia, ''I'm not afraid
of you!" The sheriff's officers quickly ushered the supporters out of
the courtroom as they too taunted the judge. Shouts from the corridor
could be heard within the courtroom as Ribner, his face reddened
with anger, tried to resume the session.

Mumia didn't offer physical resistance as he was escorted out of
the courtroom. Judge Ribner tried in vain to act composed as if nothing
had happened. "It was not your fault," he assured Jackson. "I will
not let this affect my conduct of the case."

Jackson left the courtroom emotionally sapped. The morning's
fracas was, he feared, just a harbinger of what was to come. On the
one hand, a trial with elements of MOVE politics could never be
smooth sailing. On the other hand, he shared his client's frustration.
He too felt the urge to curse the judge and the whole tightfisted
judicial system. The system would not allow for a fair fight, but it
would cynically gesture at the notion of due process so that the jurors,
who would be nothing more than temporary guests in the dirty world
of criminal law, would come to believe that what they were witnessing
was American justice, the finest in the world, operating in the name
of law and order.

Reporters beckoned Jackson for a comment. Mumia's outburst
was a reaction to the "cavalier attitude" that he felt pervaded the way
the case was being handled, he explained. "There's a tremendous
amount of work that still has to be done. My client is upset because he
sees an attitude on the part of some others that it's no big thing .... His
life is at stake."
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:11 am

With rebellion, awareness is born.

-- ALBERT CAMUS


6. SEEDS OF REBELLION

Go into a criminal courthouse and observe the process-not
the trial process but the routinized pretrial process. Trials are
a rarity. The criminal justice system cannot be judged-ought not be
judged-solely by that extraordinarily rare event. To judge the criminal
justice system through observations of celebrated trials is akin to
claiming that you know all about the movie-making business because
you like to go to movies, or that you understand football because
you've seen the Super Bowl.

Sit in the spectator section of the courtroom and watch the pretrial
process unfold with deadening monotony. I remember someone once
describing the process as being like a package express terminal. A case
is called out by a court officer and the file is handed up to the judge,
who is much like a dispatcher routing the packages to their destinations.
Two shipping clerks-the prosecutor and the defense lawyerbicker
over what to do with the package, which sits inert awaiting
resolution of its fate. The bickering typically leads to a plea of guilty,
and the package is routed to some far-off destination. "Next case," the
judge declares, and another package is brought in.

Every so often-and it doesn't happen much, to be sure-a package
reveals itself as a human being, and a rebellious one at that. This
human being protests the package routing system. He announces that
he wants to take control over his fate within a rigid routing system
where obedience and silence prevail. He punctures the delusion of the
dispatcher and the shipping clerks that what they are doing constitutes
the law in action. "Sit down and be quiet," the judge/dispatcher will
demand, offended by the awakening of the package. "This is a court
of law!"

***

On May 13, 1982, with pretrial hearings two weeks away, Mumia
resolved in his own mind that he would not allow himself to be a
package in a bureaucratic routing system.

The state of Pennsylvania had earmarked his life, one so full of
promise, for extermination, and as the seasons changed from winter
to spring, Mumia hurled closer to touching the raw nerves of existence-
that moment in life, which so few of us ever experience and
thus may never understand, where decisions and actions directly and
concretely affect whether one lives or dies. Whether from desperation,
stress, or epiphany, Mumia drew closer to MOVE and took to heart
the "teachings of John Mrica." He would put his faith in those teachings,
and the first public display of that faith would take place that
morning.

Mumia stood before Judge Ribner and let the silence settle in
before speaking. He appreciated the power of silence, that moment
of anticipation before filling the room with the sounds of one's voice.
Silence rivets the mind. A coterie of MOVE members sat in the
audience awaiting the announcement. Unlike the MOVE members,
the news reporters had no clue that Mumia was going to pull the
case into a different direction. John Mrica taught his followers that
the "system" has its own laws, but that nature's laws have a force all
their own. When you acquiesce to the laws and legal procedures that
serve the "system," he taught, you relinquish the power within you.
The teachings of John Africa dictate self-representation in a court
of law.

Mumia announced that morning, in his honeyed baritone voice,
that he would, from that moment forward, handle his own case and
dispense with Jackson's services. Judge Ribner hadn't expected that
such a request would be made, and he seemed to be caught off guard.
This was, after all, a capital case, and it was no time for an attorney
to have a "fool for a client" -the worn-out opprobrium invoked when
a defendant seeks to represent himself. He asked the defendant standing
before him if he understood what that meant. The Constitution
required that Judge Ribner ask a litany of questions: Do you understand
that you have to follow the rules and procedures of this court?
Do you understand that you will not be able to complain later that a
lawyer could have done a better job? Do you understand that this trial
will proceed without regard to your lack of legal training? All of the
caveats and warnings didn't dissuade Mumia from his decision. It was
his life on the line; he'd see to it that it would be defended appropriately.

Mumia's decision would have huge repercussions on the trial proceedings.
The Sixth Amendment to the United States Constitution
guarantees a defendant the right to represent himself. But constitutional
rights are often grudgingly recognized, and the right to selfrepresentation
is no exception. Judges hate it when a defendant
invokes that right, because it bogs down the system. Attorneys, beholden
to the operation of the court system, can be counted on to
keep the case moving along, a preeminent goal of a judge. An untutored
defendant representing himself is only interested in his own fate;
he could care less about efficiency and has no need to be a team player
in the criminal justice game. Judge Ribner wasn't pleased with what
he was hearing, but he had no choice other than to honor Mumia's
request.

Jackson wasn't cut loose, however, much to his chagrin. He thought,
when he heard the announcement, that this ordeal would be over for
him. Mumia wasn't a client who stood by silently as his lawyer
(mis)handled the case. He was a demanding client, the type that
prompts shudders in a criminal defense lawyer. They joke at conferences
with other colleagues about the difficulties of having a demanding
client and daydream about how much easier the practice of law would
be if their clients weren't so damn demanding.

Mumia was more than a demanding client. He brought to the
table a blending of intelligence and skepticism. He asked questions,
and if the answers didn't make sense, he said so. He wanted to see
all of the police reports, and he wanted to know why certain things
were done, and why other things weren't done. He didn't trust law
enforcement to disclose all of the evidence, and he knew better than
to assume that the district attorney's office would play fair. Mumia's
experiences as a journalist, and even his experiences with the Black
Panther Party, had taught him to be skeptical.

Jackson's difficulties extended beyond client relations. The MOVE
organization, still embittered over the conviction and incarceration of
the MOVE Nine, rallied to Mumia's defense. Their members were
conspicuously present at each and every court session in large numbers.
Several MOVE members watching Mumia declare his intention
to represent himself pursuant to the teachings of John Africa would
perish, three years later to the very day, in a police firebomb attack
on their home on Osage Avenue, resulting in the horrific deaths of
six adults and five children. But for the time being, they, too, scrutinized
Jackson's performance, and, by his lights, made ridiculous demands
upon him. Additionally, the media was still going crazy over
the case. Television cameras and reporters stood outside the entranceway
to the courtroom at every appearance. It was all wearing him
down, and he wanted out.

Jackson made a motion to Judge Ribner asking that he be freed
of his professional obligations to Mumia. The judge flatly rejected the
motion, knowing that it would only inject more chaos and delay into
the case-the twin evils in the criminal justice system from a judge's
perspective. He ordered Jackson to remalll as backup counsel. The
notion of backup counsel is not taught in law school or in continuing
legal education seminars. No one really has a clear notion of what it
means. It suggests that the lawyer is there to help the untrained (and
foolish?) client sidestep the legal landmines that populate the terrain
of a trial. But how that assistance is to be given is largely a matter left
for the defendant and his backup counsel. One thing is certain: being
backup counsel is a terribly frustrating experience for a trial lawyer.
Trial lawyers, almost by instinct, critique other trial lawyers in action,
often quickly jumping to the conclusion that they could do it better.
So the frustration is all the more acute when the "lawyer" conducting
the trial is an untrained lay person.

Mumia understood fully that Jackson wanted to be removed from
the case, and that troubled him. He wouldn't go to a doctor who
expressed reservations over providing treatment; he wouldn't even al-
Iowan unwilling mechanic to fix his car. He surely wasn't inclined to
let a lawyer who virtually begged to be relieved from the case to remain
by his side when the State was trying to take his life. "I am faced with
an attorney who has said in full court that he is not functioning as
backup counsel," Mumia explained to Judge Ribner.

"So?" the judge replied.

For an instant, Mumia was puzzled. "I need an attorney who's
comfortable doing that," he continued. "As 1 expressed, 1 worked very
closely with Mr. Jackson but 1 feel it is now time for me to defend
myself." Ribner remained silent. "My point is that if 1 have a courtappointed
counsel assigned as backup counsel who has expressed his
inability to function in that role, then our relationship is compromised.
My ability to depend on his resources is compromised."

The judge was not impressed. Jackson had been on the case for
over five months; the machinery of death would not be stopped to
allow another lawyer to come on board, with all of the associated
delays, simply because the defendant was not satisfied with having a
lawyer who wanted out of the case. He was stuck with Jackson, and
Jackson was stuck with him. Neither was happy.

***

While Jackson was still fuming over being backup counsel, McGill
couldn't have been more pleased. After the May 13 court appearance,
the case was transferred for trial to the Honorable Albert F. Sabo.

Prosecutors in the Philadelphia district attorney's office loved to
hear those two syllables, "Sa-bo." fu one former prosecutor remarked
to an investigative journalist looking into Saba's record as a judge,
"getting sent to Saba is like a vacation for prosecutors." Philadelphia
defense lawyer Mark E. Gottlieb characterized Judge Saba as a favorite
among prosecutors, saying, "I don't think there was anyone you would
be happier with [as a prosecutor]." Gottlieb was in a good position
to know: he once served as head of homicide prosecutors in the Philadelphia
district attorney's office.

The son of immigrants and the first judge of Slovak heritage to
ascend to the bench in Philadelphia, Albert Saba initially wanted to
be an FBI agent, but at five feet four, he was too short. For sixteen
years before becoming a judge, he served as legal advisor to the
sheriff's office. Sitting as a homicide judge for two decades-he was
forced into retirement against his will in January 1998, for budgetary
reasons-he had sentenced thirty-two people to death, far more than
any other judge in the country. Forty percent of all death sentences
in Philadelphia were meted out by Judge Saba. One-fifth of all death
row inmates in Pennsylvania stood in Judge Saba's courtroom when
they heard their fate. Ninety-two percent were black men. What
makes this all the more remarkable is that Judge Saba had heard fewer
homicide cases than many of his colleagues. No one familiar with the
Philadelphia court system ever wondered why Judge Saba was called
the king of death row.

"I've never lost sleep over sentencing defendants to death," Judge
Saba told one reporter. "I sentence 'em and I forget about 'em."

Defenders of Judge Saba, such as Philadelphia district attorney
Lynne Abraham, are fond of pointing out that in Philadelphia, as in
most jurisdictions, it is the jury that ultimately decides whether a
defendant should be sentenced to death. Judge Saba merely carries
out the will of the jury, the argument goes. This argument overlooks
the enormous impact of a judge on the outcome of a case. There is
a myth that "truth" filters to the top through the adversarial battle
between litigants, and the judge merely referees the contest. The judge,
according to this myth, keeps the contestants in line with his fidelity
to the "law." The "law," of course, is perfectly neutral in this mythic
conception of the judicial system.

This myth acquires its force in the public consciousness, in part,
through the symbols that dominate a courtroom. The judge sits above
the fray, looking down upon the trial lawyers as they supposedly battle
over their contested versions of the "truth." The judge wears the black
robes, with the United States flag on one side and the state flag on
the other. On the wall above his head read the words, "In God We
Trust," or some such slogan. When the judge rules upon a question
of law, he does so with an aura of detachment.

The defenders of Judge Sabo who claim that the aspersions thrown
his way are unfair rest their argument upon this myth of neutrality and
detachment. Criminal defense lawyers who have appeared before Judge
Sabo know better. One local lawyer told a Los Angeles Times reporter,
"When you are a defense lawyer and you are in Sabo's courtroom, you
are playing an away game. You are not with the home team."

The Philadelphia Inquirer conducted a study of Judge Sabo's trials.
Published in a Sunday edition on September 13, 1992, the piece noted
that in "case after case ... the judge, through his comments, his rulings
and his instructions to the jury, has favored prosecutors." The
srudy indicated that Sabo would not shy away from providing advice
to a prosecutor to enhance the chances of a conviction. Prosecutors,
the study noted, often had to restrain Judge Sabo, for fear that he
would go overboard and jeopardize a conviction, something that Mc-
Gill would do several times during the trial. Such concern was amply
justified: no judge in the United States competed with Judge Saba in
the percentage of capital cases reversed on appeal.

Judge Sabo's record as a jurist has also provoked consternation
for its palpable racial overtones. Duquesne University law professor
Bruce Ledewitz studied Judge Sabo's record as a presiding jurist
over capital cases through the prism of race and concluded that it
would be "unacceptable in the worst Southern death-belt states.... "
In its publication, justice on the Cheap: The Philadelphia Story, the
Washington-based Death Penalty Information Center highlights Judge
Sabo's death-penalty record to exemplify the destructive influence of
race in the implementation of Pennsylvania's death penalty.

The Philadelphia Inquirer ran another story, approximately a year
after Mumia's trial, indicating that one-third of the attorneys who
participated in a survey rated Judge Sabo as "unqualified" to be a
judge. The relevance of this anecdote, however, is not only in the
survey results but also in Judge Sabo's unguarded response to them.
He remarked, upon hearing of the results, that if he were a defense
attorney, "I wouldn't vote for me either."

***

As the reality of the trial loomed, Jackson's displeasure over being
backup counsel gradually took root in his anxieties over money. He
had too many other commitments-such as making money to fund
his law practice and pay his personal bills-to sit through a trial. He
couldn't tell the judge that money was the reason he wanted out.
He argued instead that he didn't know how to be backup counsel.
He spoke in his customary rapid spurts, but with a noticeable edge
of desperation in his voice.

"I have not been trained as backup counsel," Jackson warned.
"Your Honor would be placing me in a situation I am unfamiliar
with. I have never done this before and I am not sure, feeling that I
would be effective in providing-"

"Whoa, there," Judge Sabo interrupted. "It isn't a very difficult job.
It doesn't require too much to represent someone as backup counsel."

Sabo had a point, which Jackson couldn't deny. He would only
have to sit at the defense table and provide advice episodically, if
Mumia was amenable to soliciting it-and that was his choice. But it
wasn't the intrinsic difficulties with dispensing advice, of course, that
prompted Jackson's desperate plea. It was this case, with the pressures
attendant on it, especially the inordinate attention it was receiving.
He knew where the case was heading: it would be a circus, filled with
diatribes and ranting from the spectators. It was destined to be a
vitriolic contest between defendant and judge, and McGill would
stand poised to skewer whatever defense Mumia could muster. Jackson
kept pleading with Sabo: "I would request that either additional or
other counsel be provided as backup for Mr. Jamal I would not
feel comfortable being Mr. Jamal's backup counsel. Most respectfully,
I would like the record to show as well that I would refuse to
be backup counsel."

Jackson had become emboldened without realizing it. It was not
his prerogative to refuse the assignment at this late stage of the proceedings.
Jackson shifted the focus slightly, suggesting that the judge
would be dooming the legitimacy of the trial from the very start if he
didn't cut him loose. "I am suggesting that without due process Your
Honor is requiring me to perform a function I have never performed
in a matter where a man's life is at risk. ... What I'm saying, Your
Honor, is that I have never, never, since I have been practicing law,
been backup counsel, and I am saying that I do not know how I
would function and I feel uncomfortable that indeed I might be ineffective."

Sabo repeated again that it was no big deal to be backup counsel.
Jackson would have to grit his teeth and endure an unpleasant duty.
Sabo's motives were unstated but transparent: he wanted the trial to
move at a rocket pace, and Jackson was expected to use his role as
backup counsel to keep Mumia in line to accomplish that goal. More
out of spite than anything else, Jackson took Judge Sabo's remarks to
heart. During the period of time that virtually all competent trial
lawyers dedicate themselves to preparing for trial, Jackson had done
nothing on Mumia's behalf-or as he put it years later, "I just sat
back with my hands folded. I wasn't doing him any good."

***

In early June, pretrial hearings began. The issues to be resolved
were routine for a busy criminal justice system. Jackson had filed
motions to suppress evidence-identification evidence, physical evi-
dence, and, of course, evidence of Mumia's own alleged statements.
Hearings were scheduled to determine whether those items of evidence
should be suppressed-that is, disallowed for use at trial. The hearings
were really pro forma-actually, an exercise in futility, because motions
to suppress evidence are rarely granted, notwithstanding the false
but alluring picture foisted upon a gullible public of judges allowing
brutal murderers to go free on trivial technicalities.

Acting as his own lawyer, Mumia questioned witnesses at the pretrial
hearings with surprising deftness. He stumbled on occasion, but
so do the most seasoned trial lawyers. He certainly performed better
than the judge and prosecutor expected. McGill called him the
"smartest" defendant he had ever prosecuted. Mumia's most impressive
work as a lay lawyer came about during his cross-examination of
Cynthia White and Robert Chobert, two eyewitnesses who the prosecution
called to testify at the pretrial hearings to substantiate that
their identifications were legally proper. Although constantly interrupted
by objections, Mumia kept his focus, and his cool, as he methodically
exposed discrepancies in their testimony. Later, Mumia's
cross-examinations of White and Chobert would be the template for
the trial cross-examinations.

But it wouldn't be Mumia doing the questioning in front of the
jury. McGill and Judge Sabo would see to that.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:13 am

[L]et's face it, again, there's the blacks from the low-income
areas .... You don't want those people on your
jury.

[Y]ou know, in selecting blacks, you don't want the real
educated ones ....

-- TRAINING TAPE ON JURY SELECTION FROM THE
PHILADELPHIA DISTRICT ATTORNEY'S OFFICE


7. JURY SELECTION

Pretrial publicity and race are the wild cards in the criminal
justice game. Each affects the outlook of potential jurors, and
thus each alters how the trial evidence will be received and weighed.
The outcome in the battle over whose good-versus-evil narrative will
prevail with the jury may be largely determined before the first words
of testimony are even spoken.

When pretrial publicity focuses on the killing of a white police
officer by a black radical, especially one associated in the public mind
with a particularly misunderstood and maligned black group like
MOVE, the judicial climate is poisoned against the defense right from
the outset. Judge Ribner's observation that Jackson had a "big" case
on his hands that would have "explosive tendencies in this community"
was best interpreted as a warning.

While Officer Faulkner's death made the front pages of the afternoon
papers on December 9, 1981, it was Mumia's ideology and
political activities that gave the story its particular intrigue and bite.
The Philadelphia Inquirer headlined: "Jamal: An eloquent activist not
afraid to raise his voice." The Philadelphia Daily News was quick to
point out that Mumia "... wears his hair in dreadlocks and was associated
with several black activist causes .... [H]e was a leader of the
local Black Panther Party while still a teenager." The media gravitated
toward a particular remark by Mumia, made when he was an ebullient
fifteen-year-old member of the Black Panther Party-"Black people
are facing the reality that the Black Panther Party has been facing:
political power grows out of the barrel of a gun."

To many middle-class whites in Philadelphia, Mumia's involvement
in the Black Panther Party was of a piece with his sympathies
for MOVE. Media profiles of Mumia lumped MOVE in with his
teenage membership in the Black Panther Party, dodging discussion
of the details of either organization or of Mumia's particular involvement
in them. It was enough simply to mention the two organizations,
allowing them to intersect in the personage of the arrested journalist
so as to propagate an alluring portrait of a dangerous black radical
fully capable of attacking a foot soldier of the status quo.

Inevitably, therefore, the killing and the arrest would be seen
through the prism of Philadelphia's racial polarization. One Philadelphia
Inquirer commentator stated that "radio talk shows were full of
people calling in to say exactly what ought to be done about the killing
of Police Officer Daniel Faulkner on the Locust Street strip in the
early hours of Wednesday morning. Some of them, predictably, want
to lynch the man who calls himself Mumia Abu-Jamal as soon as he
recovers from the bullet wound placed in his gut by the dying cop."

At the height of the news blitz Philadelphia Bulletin columnist
Claude Lewis took his fellow journalists to task for "straying from
their purported posture of 'objectivity.' " Wrote Lewis: "They repeatedly
attributed to Abu-Jamal a penchant for radicalism and militancy.
Their characterizations sparkled with prejudicial passion, reducing in
the public mind any possibility of innocence on the part of the suspect."
Guilt or innocence was no longer the issue within the public
discourse. It was all about explication, penetrating the inner meaning
of the hideous crime. Mumia's radical politics, and Philadelphia's lingering
torment over MOVE, were more than the backdrop to a crime
story; they bestowed upon the entire affair a collective psychological
anchor, as if Faulkner's death was the fruition of all that had come
before in Philadelphia's history of race relations.

What was up for grabs in the approaching trial was whether these
things amounted to an explanation for Mumia's otherwise inexplicable
act of murder, or to an explanation for why the police and the court
system was hell-bent on securing a conviction and death sentence,
regardless of his actual guilt. Either the police were good and Mumia
was evil, or vice versa.

McGill, for his part, understood immediately the death potential
of these ingredients in the case. Within weeks of the crime, he had
captured within his own mind an image of who this defendant was,
and he began cultivating a story line that would infuse the killing with
an emotionally charged meaning for his specially selected jury. It
would not be difficult to fashion a good-versus-evil drama with Mumia
Abu-Jamal wearing the proverbial black hat.

***

After three months on the case, Jackson had yet to penetrate beneath
the surface of his case. As each day passed, he was increasing
the likelihood that he would relegate himself to a reactive role in the
trial, desperately trying to hold off the evidentiary onslaught by a
highly aggressive and skilled prosecutor. He had not talked with any
witnesses; he had consulted with no experts concerning the ballistics
and medical evidence; nor had he even developed a plan on how to
prepare an attack on the prosecution's case. He was far from grasping
the defense's emotional core of the case.

As a black man, however, Jackson knew all too well the toxic
effects of racism on the trial process. No set of advocacy skills can
cleanse a trial atmosphere already polluted with racism. He first raised
the issue of race on March 18, less than three months before the start
of jury selection. He wanted the court to authorize the distribution
of a jury questionnaire to those people who would be receiving a jury
summons for possible service on the case of Commonwealth v. Wesley
Cook, aka Mumia Abu-Jamal. Jury questionnaires are not uncommon
in capital cases-they are routine III many states-as they help in
selecting an impartial jury. Jackson wanted the distribution of questionnaires
to help in stopping the prosecution from eliminating blacks
from the jury pool. He had complained to courthouse journalists that
the prosecutors in Philadelphia were notorious for "whitewashing" the
juries, especially in death penalty cases.

"It has been the custom and the tradition of the district attorney's
office to strike each and every black juror that comes up peremptorily,"
Jackson argued to Ribner. He was referring to the prosecution's use
of peremptory strikes against prospective jurors, an allotment of challenges
for which no reason need be given. "That has been my experience
since I have been practicing law, as well as the experience of
the defense bar; the majority of the defense bar knows that that occurs."

McGill didn't like what he was hearing. Slouched in his chair
quietly twirling the edge of his mustache, he jumped abruptly out of
his seat once Jackson raised the specter that race would playa role in
the litigation. "Excuse me, Your Honor-I don't want to interrupt,
but I want to make an objection."

Judge Ribner, reclining in his high-backed leather chair, knew
exactly what McGill was going to say. "You are going to categorically
deny that?" the judge asked incredulously.

Jackson didn't let McGill answer. "They always do," he interjected.
'They always do."

Jackson, of course, was right. Defense lawyers and prosecutors are
acutely sensitive to race, and that sensitivity gets funneled into strategies
over jury selection. But Jackson's accusations were not based on
hard evidence, only anecdotal data that defense attorneys across the
nation store daily in their collective memory. What Jackson didn't
know was that Philadelphia prosecutors were actually trained to racesanitize
the jury in order to maximize the chances of securing a conviction.

Sadly, judges are often not sensitive to the issue of race, taking on
the narrowest understanding of how race and racism come into play
in a criminal trial. They routinely balk at the idea that a murder
case could have racial overtones unless the alleged killer openly declares
his motive to be racial. Judge Ribner, in this respect, was a typical
criminal court judge. Jackson's concern over the exclusion of blacks
from the jury did not resonate with the judge, which is why the judge
was not inclined to use public funds to distribute a questionnaire to
ferret out latent racial attitudes and prejudices.

"This is a murder case," Ribner declared, now leaning forward
and chopping the air with both hands. "I haven't seen any evidence
that anybody has turned this into a racial incident."

Jackson understood that white judges rarely appreciate the influence
of race in the criminal process. He tried, nonetheless, to explain
that race seeps into the process more insidiously, particularly with
jurors harboring preconceptions, stereotypes, and fears that undercut
a black defendant's ability to defend against charges of killing a white
person. Judge Ribner listened, but didn't care enough to understand.
He was more concerned with the budget. As Judge Ribner put it: "It's
never been done before, Mr. Jackson. At any rate, we're not going to
pay for that. The county is not going to pay for that."

***

Until 1986, the judiciary was simply indifferent to the widespread
practice of excluding minorities from criminal juries. That year the
Supreme Court in a case called Batson v. Kentucky erected a threetiered
process for examining whether a prosecutor is improperly excluding
minorities from a jury. [i] First, a defendant must challenge a
prosecutor's exclusion of a juror with a plausible claim that race consciousness
is playing a role. If a judge agrees that race might be playing
a role, then the prosecutor must provide "race-neutral reasons" for the
peremptory strikes. The third step permits the defendant to show that
the race-neutral reasons are but a pretext for race-conscious selection
methods (usually with proof that a minority is eliminated when a
white, with similar characteristics, is not).

Batson was a step in the right direction, but it in no way remedied
the problem. Judges too often rubber-stamp prosecutorial explanations
for striking blacks, even when those explanations are utterly preposterous.
For example, in a 1987 Georgia case, the prosecutor used all
ten of his peremptory strikes to remove all ten blacks from the jury
panel. When the prosecutor was called upon to provide a race-neutral
explanation for one of his strikes as required by Batson, he explained
that one juror looked as "dumb as a fence post." For another black
prospective juror, the prosecutor justified the strike because he "resembled
the defendant." The judge found such explanations sufficient. [1]
Another Georgia prosecutor justified an exclusion of a black prospective
juror because she worked in a video store and therefore would
not be "good with people." The trial judge found this explanation
acceptable. [2] An Alabama prosecutor, with the trial court's imprimatur,
justified his strikes of several blacks from a jury panel because they
were affiliated with Alabama State University-a predominantly black
institution. [3] In one instance, the court found the prosecutor kept a
chart of the prospective jurors with the following categories: "strong,"
"medium," "weak," and "black." The prosecutor struck every black
person from the panel, with the endorsement of the Alabama courts. [4]
A Florida prosecutor in a death case eliminated ten black jurors from
the panel, explaining that they were "inappropriately dressed," and
with respect to one prospective juror, claiming he wore "pointy New
York shoes." This prosecutor rejected a black woman because she was
unemployed, but had accepted an unemployed white woman. The
trial judge found no problem with these explanations. [5]

***

Evidence confirming Jackson's experiential intuition that race consciousness
played a decisive role in jury selection by Philadelphia prosecutors
came in the form of a videotape that surfaced during a 1997
election campaign for the office of district attorney in Philadelphia.
This videotape was prepared ten years earlier by the Philadelphia district
attorney's office expressly for the purpose of training prosecutors
in the craft of race-conscious jury selection. The videotape shows a
senior prosecutor named Jack McMahon standing before a crowd of
young assistant district attorneys eager to learn how to be trial prosecutors.
This training videotape was made under the auspices of then
district attorney Ronald Castille. Castille now sits on the Pennsylvania
Supreme Court, and he had refused to recuse himself from considering
Mumia's second round of appeals in 1998, even though the issue of
race-based jury selection in the Philadelphia district attorney's office
would be a major point of contention.

In the training session, McMahon, a colleague and contemporary
of Joe McGill, appropriately emphasized that "jury selection is the
most important part of the trial." The most well-fashioned trial strategy
is for naught if the audience is not receptive to the advocate's
message. McMahon and the other senior prosecutors in the district
attorney's office understood quite well that, in a city with a history of
racial tensions and Rizzo-style brutality, a case built upon law enforcement
testimony is not as well received by an audience of African-
Americans as it is by an audience of Caucasians. "The blacks from the
low-income areas are less likely to convict," McMahon asserts on the
videotape. "There's a resentment for law enforcement and a resentment
for authority." Themes of law and order sell better with middleclass
whites, McMahon was preaching; and they are aroused to anger
much more readily in a case of black-on-white crime, particularly
where the crime is the killing of a white police officer. The key to
success, McMahon taught his young audience with shocking bluntness,
is keeping blacks off the jury. This was no easy task in a city
with a population consisting of 40 percent African-Americans.

"People from Mayfair are good," McMahon notes on the videotape,
referring to a white neighborhood, "and people from
Thirty-third and Diamond [a poor black community] stink. ... You
don't want any jurors from Thirty-third and Diamond." He reinforces
the message with the warning that "there's the blacks from
the low-income areas ... you don't want those people on your jury,
let's face it." Later in the videotape, McMahon says: "In my experience,
black women, young black women, are very bad"; and "You
know, in selecting blacks, you don't want the real educated ones .... "

McMahon further advocated keeping a running tally of the racial
composition of the jury pool, an irrefutable indication that race would
play a key role in the exercise of peremptory challenges. "Another
thing to do, little tips, too, when a jury comes in the room, the forty
people come in the room, count them. Count the blacks and whites.
You want to know at every point in that case where you are. In other
words, the forty come in-you'll never get it just right. You don't
want to look there or go, 'Is there a black back there?' "

Keeping tabs on the race of the jury pool was so important to the
district attorney's office that McMahon advised young prosecutors to
invent reasons to leave the courtroom, if necessary, to ascertain the
racial composition of upcoming prospective jurors. "If you lose track
or you're not sure of what's going on, you can always take a recess,"
McMahon advises. "Because a lot of times what they do is they'll like
have the next group ... sitting right out there in order. So you can
say, 'Judge, I have to go to the bathroom.' You can go out and see
what's left and check out what's left." [ii]

No lesson on race-based jury selection is complete without a tutorial
on how to avoid the strictures of Batson. "In the future, we're
going to have to be aware of Batson, and the best way to avoid any
problems with it is to protect yourself," McMahon cautions. "And my
advice would be in that situation is when you do have a black juror,
you question them at length. And on this little sheet that you have,
mark something down that you can articulate later if something happens....
So if-let's say you strike three blacks to start with, the first
three people. And then it's like the defense attorney makes an objection
saying that you're striking blacks. Well, you're not going to be
able to go back and say, oh-and make up something about why you
did it. Write it down right then and there .... And then you can say,
'Well, the woman had a kid about the same age as the defendant and
I thought she'd be sympathetic to him' or 'She's unemployed and I
just don't like unemployed people .... ' So sometimes under that line
you may want to ask more questions of those people so it gives you
more ammunition to make an articulable reason as to why you are
striking them, not for race."

Perhaps most brazen is McMahon's explicit instruction to disregard
the prosecutor's duty to be fair. The U.S. Supreme Court has
long made clear that the State's "interest ... in a criminal prosecution
is not that it shall win a case, but that justice shall be done .... It is
as much [the prosecutor's] duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one." [6] The Court has also clearly
stated that "the only legitimate interest [the State] could possibly have
in the exercise of its peremptory challenges is securing a fair and impartial
jury .... The State's interest in every trial is to see that the
proceedings are carried out in a fair, impartial, and nondiscriminatory
manner." [7]

McMahon has this to say about securing a fair and impartial jury:
"The case law says that the object of getting a jury is to get-I wrote
it down. I looked in the cases. I had to look this up because I didn't
know this was the purpose of a jury. The law says, 'Voir dire is to get
a competent, fair, and impartial jury.' Well, that's ridiculous. You're not
trying to get that."

Indeed, McMahon suggested to the young prosecutors that they
would lose their jobs if they attempted to follow the law and choose
fair jurors: "And if you go in there and anyone of you think you're
going to be some noble civil libertarian and try to get jurors, 'Well,
he says he can be fair; I'll go with him,' that's ridiculous. You'll lose
and you'll be out of the office; you'll be doing corporate law. Because
that's what will happen. You're there to win .... And the only way
you're going to do your best is to get jurors that are as unfair and more
likely to convict than anybody else in that room." [iii]

***

Exacerbating the race problem in jury selection is the fact that, in
a capital case, jurors who are resolutely opposed to the death penalty
are not eligible to serve on a capital case. The process of eliminating
from a jury pool those persons opposed to the death penalty is
called death-qualifying a jury (or Witherspooning, a shorthand expression
derived from the U.S. Supreme Court case Witherspoon v.
Illinois). Death-qualifying a jury is a nightmare for defendants. After
a jury pool has undergone a Witherspooning process, those remaining
tend to be more of the law-and-order types, more prone to believe
authority figures such as police officers, and more prone to convict.
Criminologists virtually all agree that death-qualifying a jury renders
it death-penalty prone. People opposed to the death penalty who are
ineligible to sit on a capital case tend to be more liberal, more skeptical
of authority, and more sensitive to human frailties. The Witherspooning
process also results in a bias favoring white juries because
a significantly higher percentage of blacks oppose the death penalty
compared to the general public. Judges are not oblivious to the distorting
effects of Witherspoon. Judge Savitt, a Philadelphia judge,
noted that "the tendency has been for prosecutors to death-qualify
the jury even when they have no intention to seek the death penalty,
because they know that a death-qualified jury is a guilt-prone
jury."

***

An experienced death penalty prosecutor, McGill extracted what
he wanted out of Witherspoon, largely without resistance from Jackson
and Mumia, neither of whom had the experience and skill to counter
McGill's maneuvering. At the end of the juty selection process, more
than half of the blacks in the juty pool were immediately disqualified
because they said that they could never vote for the death penalty.
The beauty of it, for McGill, was that he wouldn't have to use his
limited peremptory challenges on these undesirables. Frustrated, Jackson
went on a radio program and complained about the racial effects
of death-qualifying the jury. He later stated, in court testimony in
1995: "Trying cases in city hall, I know most DAs, in most homicide
cases, will get rid of as many blacks as they possibly can, first through
the death qualification and then through peremptory strikes."

As the selection process began, both Jackson and McGill, each in
his own way, had to confront the inevitable fact that the citizenry in
Philadelphia was acutely aware of the Faulkner shooting. With the
courtroom filled with prospective jurors, Judge Sabo had to weed out
those who had become too saturated with media accounts of the crime
and the case generally. "Does anyone know anything about that incident,
whether through television, radio, or the news media, the press?"
the judge asked the assembled group. "If anyone knows anything about
this incident, would you please rise and give your name to the court officer."
Judge Sabo immediately realized that he should have phrased the
question in the negative, because nearly everyone in the audience had
stood up. "Since most of you have risen, I think it may be easier if you
sit down and I rephrase the question. Is there anyone on this panel who
does not know anything or has not read or heard or seen anything on
television about this incident?" No one moved. Judge Sabo aptly observed,
"Everybody here has read about him."

***

"Good morning, ma'am, my name is Mumia Abu-Jamal."

Juror number eighty-nine, an elderly black woman named Jennie
Dawley, viewed the tall defendant with the musical voice much as the
other people on the jury selection panel did-as an oddity, not so
much because of his dreadlocked hairstyle bur because he was the
defendant. The defendant is supposed to sit quietly at the defense table
while his lawyer does all of the talking. The prospective jurors had
not expected that Mumia would be handling his own case. It took
time for them to come to grips with the fact that Mumia would be
questioning them directly during the voir dire-a process of interacting
with prospective jurors to assist the trial participants in selecting
which of them to eliminate from service.

Although she had lived in southwest Philadelphia for over twenty
years when she was summoned for jury duty, Dawley had never served
before. She told Mumia that she was a retired common laborer who
had no fixed opinion about what had happened on December 9. Mumia
liked her. She seemed to be the kind of authentic person that he
could relate to.

"Is there anything about how I look to you that offends you or
turns you off?" Mumia asked.

"No, you look like people to me, that's all," Dawley answered in
a heartbeat.

Mumia detected a certain feistiness in Dawley, a willingness to
hold her ground. He asked her what her husband had done for a
living. "Well," she said with a nod, "let's not bring him in. Okay. Let
it rest like that. He's not here." She stood up to him, gently but firmly.
Mumia liked that as well. She would stand up to the white folks hellbent
on coming back with a guilty verdict, Mumia figured.

When McGill asked Dawley if she had any moral, religious, or
philosophical scruples which would prevent her from sitting in judgment
of another human being, Dawley put it simply: "No, I'm just
plain old me."

After questioning scores of other people before her, Mumia knew
that Dawley had to be on this jury. He didn't want to signal to McGill
his strong feelings about her, so he took his time in letting the judge
know that she was acceptable. He asked Judge Sabo for permission to
ask some more questions. He probed a little more about her attitude
regarding the notion that a defendant has no obligation to present a
defense-a probing that masked his desire to select her.

It worked. McGill refrained from striking her with a peremptory
challenge, primarily because he viewed her as elderly (and thus, likely
to be hostile to radical politics) and would probably be ill at ease with
Mumia's supposed arrogance. "You have been selected as juror number
one," Judge Sabo informed Dawley. Mumia and the prosecutor, for
the first and last time, agreed on something. But even that would not
last long.

As pleased as Mumia was with Dawley, he could not have been
more distressed about a juror than he was with Edward Courchain. A
fiftyish white man, Courchain never disguised his inability to keep an
open mind, admitting that he had developed a bias for the prosecution.
He candidly disclosed to McGill that he could not accord Mumia
a fair trial and that he would find it "a little difficult" to follow the
law as given by the court. As the questioning progressed, it became
evident that Courchain's inability to be fair to both sides resulted from
his exposure to the media coverage of the case. He told McGill that
he was "swayed a little bit" by the newspaper and television coverage.

Jackson had a single goal as he moved to the front of the defense
table: nail down Courchain's answers about his partiality. "Mr. Courchain,
you've indicated that you may have some difficulty serving in
this case; is that correct?"

Courchain bobbed his head a few times. "That's right."

Jackson gently probed further. "And you further indicated that
this difficulty arises from your exposure to the news media; is that
correct?"

"Right." Courchain's terse reply signaled his suspicion over Jackson's
probing.

Jackson, sensing Courchain's uneasiness, put to him the most
pointed questions that could be asked of a prospective juror: "Now,
as difficult as it may be to answer my question, and of course the
questions of Mr. McGill, we unfortunately have to back you to the
wall to get an answer from you. So, please, consider that when I'm
asking you these questions. What we need to do is to determine your
qualifications as a juror. The questions I'm asking you-although I
know you can't predict with any absolute certainty what you're going
to do in the future-we need to know now in your best judgment,
whether or not you could be objective in this matter, stay in the
middle, don't lean towards the prosecution, don't lean towards the
defense, whether or not you could objectively determine the facts in
this case?"

"Do you want an honest opinion?" Courchain asked.

"Yes, sir," Jackson responded.

"No."

Jackson was taken aback by the bluntness of the answer, but happy
with it nonetheless. He couldn't resist asking Courchain to confirm
the answer. "You cannot do that?"

"No."

Jackson could have stopped at that point. He had enough to justify
removing Courchain, but he sensed that he could secure more
answers to solidify the motion that he would soon make to remove
this prospective juror as unfit to serve. "Sir, if I were to tell you that
the law requires that if you were to serve as a juror you are to set that
aside, could you do that?"

"I would try, but I don't know. Consciously, I don't know."

" 'Consciously -- ' "Jackson parroted.

"Unconsciously, it would still be there," Courchain explained.

"I understand that. And I don't mean to argue with you, sir. I'm
just trying to get it as best as I possibly can, because you also said
that you didn't think that you could be fair to both sides. Did I hear
you correctly?"

Courchain became testy over the dissection of his words. "I said
unconsciously I don't think I could be fair to both sides."

"I don't think I could be fair to both sides"-an answer like that
pretty much assures a criminal defense lawyer that a prospective juror
will get knocked off the panel on a cause challenge (a challenge based
upon bias, favoritism, or other impediment to jury service). Jackson
moved for Courchain's removal. "Denied," Judge Sabo ruled.

Perplexed by the ruling, Jackson realized he was now in a bind.
He had no more peremptory challenges left to remove Courchain. He
argued further with the judge, explaining that the law mandated that
Courchain be removed. Judge Sabo turned to Courchain and asked
him some more questions about whether he could be fair. All he could
say was that he "would try." Jackson moved for his removal again.
"Denied." Courchain was there to stay.

The only saving grace was that Courchain was an alternate and
not on the actual panel of twelve. Not yet, anyway.

***

There is a reason why Jackson, rather than Mumia, was questioning
Courchain. At the start of the third day of jury selection, Judge Sabo
precipitously ruled that Mumia had to turn the jury questioning over
to Jackson, despite the fact that he was doing very well in bringing
out the feelings and attitudes of the prospective jurors. The desire to
silence Mumia was disclosed to the press the day before. McGill told
reporters that he would ask Judge Sabo to stop Mumia from further
questioning the panel, claiming that several prospective jurors left the
courtroom saying that they were too upset and afraid to serve.

When reporters found Jackson outside the courthouse, they asked
him for his reaction to McGill's anticipated maneuver. Appalled that
McGill was playing his hand in the court of public opinion, Jackson
said that Mumia was doing a better job than anyone expected. "The
prosecutor is just trying to minimize the effectiveness that Mumia is
having in bringing out the true feelings of the jurors," Jackson said.
"Legally, he's done a more than adequate job, and there's no good
reason to stop him." Reporters observing the proceedings noted that
Mumia's "demeanor during the selection process has been subdued."

On the following day, McGill let the morning session pass without
making a move. Like any good lawyer, he was waiting for the right
moment-a moment that everyone knew would come. In the afternoon,
he found the prospective juror he thought would give him the
answers he needed. The questioning of juror number 360 had just
ended when McGill stood up to ask some follow-up questions, even
though he was not going to challenge the defense's request for her
removal.

McGill asked, "Before you answered these questions here and
having Mr. Jamal ask you questions, that makes you feel very, very
unsettled, doesn't it?" Juror number 360, a bookkeeper who exhibited
nervousness from the moment she underwent questioning, answered,
"Yes, it does."

"k a matter of fact, it scares you, doesn't it?" McGill continued,
putting words in her mouth, an effective technique in jury selection
when used sparingly to accomplish a clearly defined goal.

"Yes. It scares me to death."

That's what McGill needed, even though it remained unclear what
the "it" was that scared this particular juror. Was it Mumia in particular,
or was it having to sit for questioning on a death penalty case
generally? McGill knew that in the skewed universe of Judge Sabo's
courtroom, he didn't need to tease out such nuances. If McGill insisted
that something be done, chances were that Judge Sabo would
accommodate him.

McGill asked Judge Sabo to entertain his motion to reconfigure
the jury selection process so that Mumia would no longer question
prospective jurors. Mumia expected this maneuver before the trial even
began. He knew that the daily practitioners in the criminal justice
system expect to see a fumbling effort by an untutored criminal defendant.
They don't bargain for an articulate and probing exploration
by a defendant that actually induces people to speak their mind.

The art of jury selection is simple, but few lawyers know how to do
it, because the process of legal education actually throttles the ability to
communicate spontaneously and authentically with real people. They
inherit from law professors a liking for word games and rigid logic, and
they develop a discomfort with the free-flowing give-and-take of genuine
communication. Consequently, most lawyers ask mind-numbing
questions, peppered with multisyllabic, sterile words delivered stiffiyhardly
an invitation to openness and honesty. They are too often afraid
of relinquishing control and letting people speak their mind, afraid that
someone on the panel will say something negative or controversial.
Their fears cause them unwittingly to stifle those human beings from
whom it is most important to hear, oblivious to the fact that their openness
and honesty is a gift. It is a gift because when it comes time for deliberations,
jurors will be in a back room speaking their mind, and the
trial lawyer is not invited, thus negating his power to diminish the impact
of negative remarks and unstated hostility that might affect the
outcome of the case. It's best to hear what a person has to say about various
issues in the case during jury selection, where the damaging remarks
and clues to hostile attitudes are made visible. At least during the jury
selection process, the trial lawyer has some ability to keep the hostile
ones out of the deliberations.

Mumia had always been a natural and fearless communicator, and
he had honed that craft during his years as a radio commentator
and journalist. But more importantly, he loved people and was unafraid
to be vulnerable. As a result, he was open to hearing the good
and the bad. He wanted to know if the prospective jurors didn't like
his hair, if they were afraid of him, if they came into the city hall
building already feeling that he was probably a cop killer. His own
willingness to be open and vulnerable induced communicative reciprocity
in many of those whom he questioned.

McGill didn't like that, so he wanted Judge Sabo to do something
to put a stop to it.

Judge Sabo did not disappoint. Although McGill wanted him to
take over the questioning, Judge Sabo preferred not to. He offered a
compromise: he proposed that Jackson take over the questioning. Mumia
wasn't going for it, seeing it as the first step toward stripping him
completely of his right to represent himself. "I object totally. I object
totally to that so-called compromise."

"Well, that's fine, then. I'll take over the voir dire," the judge
threatened.

"I'm not surprised. I said you would do it yesterday," Mumia
retorted.

"The rules allow me to do it, and I will do it in the interest of
justice."

"That's not in the interest of justice; it's in the interest of a conviction,"
Mumia protested.

Jackson thought it was shortsighted of Mumia to stand on principle
at a time like this and reject the compromise. It would be disastrous
to allow Judge Sabo-or any judge, for that matter-to
conduct the questioning, because he would engage in purely perfunctory
inquiries without the keen ear of an advocate. Jury selection is
far too important to relinquish to judges. If judges could conduct an
effective voir dire, they wouldn't be judges; they would be trial lawyers.
Jackson explained to Mumia that he could do the questioning
far more skillfully than the judge and that he had no interest in taking
over the case. He promised Mumia that he would retreat into the
backup role once the jury selection was over. "Hey, I know you don't
want it," he whispered to Mumia. "I don't want to be in this position,
either; but in my opinion it would be better for me to participate in
the voir dire than to leave it to him [gesturing toward the bench]."
Mumia reflected for a moment, a glacial anger welling inside him. He
then waved his hand to indicate that Jackson should take over. Jackson
handled the questioning for the four remaining days of jury selection.

When the selection process was over, a mostly white and mostly
male panel was selected (nine white, eight male). Four of the twelve
were retired, two were unemployed, and, with one exception, the others
blue-collar laborers. The Philadelphia Inquirer made a point in
noting that "prosecutor Joseph McGill used most of his twenty peremptory
challenges to turn down blacks and younger people." From
a statistical point of view, black jurors faced odds of being struck by
McGill that were over sixteen times greater than for other jurors.

_______________

Notes:

i. To be sure, a lawyer for either side of a dispute may challenge his adversary's jury selection
process under Batson.

ii. This practice of tallying the race of each prospective juror was not only captured on videotape.
it was also noted by several courts. In one case, the former chief of the Homicide Unit in the
Philadelphia districr anorney's office was caughr red-handed. A federal judge nored: "The record
demonstrares conclusively rhar, ar each trial, the prosecuror [the chief of the Homicide Unir]
kept careful records of rhe race of each prospecrive juror, and a running tally of how many
persons of each race remained on rhe venire for possible selecrion." In another case, a federal
magistrare found rhar a prosecutor's jury selecrion notes in a case tried in November 1981
"provide a conremporaneous chronicle of the spurious srrikes for each black juror." Thar prosecutor,
rhe magistrate further observed, "mainrained ... painsraking nores which revealed upon
examinarion a running rabularion of the number of blacks left on the jury after each challenge
was exercised."

iii. McGill's race-conscious jury selection methods were, at the time of Mumia's trial, not illegal,
which only underscores the fact that he engaged in the nefarious practice. The Pennsylvania
Supreme Court, in Commonwealth v. Henderson, 497 Pa. 23, 29 (1979), stated:

Put another way, it is not constitutional error for a prosecutor to challenge a black juror
for the reason that the prosecutor believes -- validly or invalidly -- that a black venireman,
because of the facts of the case, is less likely to be impartial than a white venireman.
Put still more reductively, the race, creed, national origin, sex or other similar characteristics
of a venireman may be proper comideratiom in exercising peremptory challenges
when issues relevant to these qualities are present in the case.
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