2. AN OPEN-AND-SHUT CASE
This was a clear-cut case ... the strongest I've
-- PROSECUTOR JOSEPH MCGILL
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
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
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,"
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
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 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
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
"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
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
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
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
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.
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
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
"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
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
"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
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
***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?