PART 2 OF 2
Hightower was hooked up to a polygraph machine about three
hours into the interview and was grilled about his denial of seeing
Mumia brandish a gun. He was never asked a single question about
his observation of seeing someone flee the scene, which was the most
significant detail he provided to law enforcement. It was obvious that
the polygraph examination was not administered for a legitimate in-
vestigatory goal. Of all the crime scene witnesses, only Hightower, a
materially favorable defense witness, was subjected a polygraph test.
This was unusual and suspicious, as the police never asked Cynthia
White, Robert Chobert, Albert Magilton, Michael Scanlan, or any
other prosecution witness to take a polygraph test. The prosecution
could provide no explanation as to why a young college student with
an unblemished record was subjected to a polygraph, and the other
pro-prosecution witnesses-some of whom had criminal recordswere
not. But in view of the other evidence of law enforcement
manipulation of witnesses, a fair inference arises that an effort to intimidate
Hightower was afoot as well.
Hightower left the precinct that night unsure what had just happened.
He comforted himself with the thought that he was not the
only one to be polygraphed and that this was just normal police procedure.
At the 1995 proceedings, the prosecution put on the polygrapher
who testified that Hightower had failed the polygraph. We
brought in a polygrapher of our own from the West Coast, at considerable
expense, but Judge Sabo, prompted by an objection from
the prosecution, would not permit our expert to examine the polygraph
data.
Debbie Kordansky, the woman who refused Jackson's entreaties
over the phone to testify, took the stand at the PCRA hearing in the
afternoon of August 3. Her testimony was not as straightforward as
her initial police interview statement, which on its face indicated that
she had observed someone fleeing the scene. According to Kordansky's
statement, on December 9, 1981, she lived in a hotel at Thirteenth
and Walnut, overlooking the parking lot across the street from the
scene of the shooting. It was that parking lot from which Mumia
emerged before he began his run across Locust Street. That morning
at about 3:45 to 4:00 A.M. she heard gunfire, which prompted her to
look out the window onto the street. She then saw a man runnmg
east on the south side of Locust Street.
At the 1995 hearing, she claimed not to have a complete memory
of the events. We weren't surprised by that claim, however, because
that is what she had told an Internal Affairs investigator in April 1982.
She told that investigator that she had "certain prejudices that affect
my memory against and for police, and black people." Consistent with
what she had told Jackson when he virtually begged for her to cooperate,
Kordansky explained that she had been raped by a black man.
She then said that, based upon "logic" and not memory, she heard
gunshots, heard sirens, and then went to the window. Only at that
point did she see someone run.
The prosecutors seized on this so-called logic-based answer. Grant
hammered the suggestion that her observation of flight was trivial
because she made the observation after the police arrived. This speculation
that she might have seen someone flee after the arrival of the
police simply made no sense, which led me to believe that Grant was
wasting his time with his questioning. What this speculative hypothesis
overlooked is the obvious fact that she reported her observations
of someone fleeing the scene to the police because she thought it
would be helpful to them in their effort to apprehend the shootersomething
she acknowledged as true when she testified. There would
be no reason for Kordansky, a highly reluctant witness in the first
place, to come down from her hotel room, introduce herself to investigators,
and then subject herself to an interview that would ensure
that she would be called later to provide testimony at a trial if what
she saw was as meaningless as seeing someone run after the arrival of
police. On top of that, the police are not in the business of recording
irrelevant information that has no bearing on an investigation. Logic
and common sense indicated that Kordansky felt compelled to report
seeing someone run from the scene because that event was, in her
mind, significant; and it would only have significance if the observed
flight occurred before police arrived.
What about the other two eyewitnesses, Michael Scanlan and Albert
Magilton? These two witnesses appeared to be untainted by law
enforcement manipulation. We certainly didn't have any specific information
indicating that they had been coerced or induced to testifY.
First of all, neither had the vulnerabilities that White, Chobert, and
Jones presented-namely, previous encounters with the law. But more
importantly, these two witnesses did not offer eyewitness accounts
that, upon reflection, seriously advanced the prosecution's case. In fact,
in crucial respects, Scanlan proves to be a very favorable witness for
Mumia.
Scanlan had told detectives in 1982 that Mumia must have been
the driver of the Volkswagen. How did he get that impression? we
wondered. The answer is in the hair-Mumia's hair. Scanlan couldn't
help but notice that Mumia had long, Rowing dreadlocks. He couldn't
have been the shooter, according to Scanlan, because he was "certain"-
a word attributed to him in a police interview report-that
the shooter had an "an Mro hairstyle." Jackson had not developed
this point at the trial, and there appears to be a reason for that, which
amounts to another annoying reminder that nothing in life is ever
simple. Jackson probably didn't want to emphasize Scanlan's description
of the shooter because he had pinned his hopes on the fact that
Robert Chobert, Veronica Jones, and Dessie Hightower would all testify
that the person they saw run from the scene had long dreadlocks.
He probably had no interest in Scanlan's observation that the shooter
had an Mro hairstyle because it contradicted his three "flight" witnesses.
While it is easy to play Monday morning quarterback, I felt angered
by Jackson's apparent tactical judgment. It bespoke his cramped
perspective as to how to mount a defense in this case. Scanlan was an
excellent witness for the prosecution, primarily because he was well
dressed, articulate, engaging, and untainted by even the hint of police
pressure. He also gave the jury the impression that he had an excellent
viewing of the shooting, especially in his description of how Faulkner's
body "jerked" when the shooter fired into his head. An acknowledgment
from a powerful prosecution witness that the shooter had a
hairstyle that had absolutely no resemblance to that of the defendant
on trial is simply too good to pass up. It is the type of evidence that
a trial lawyer revolves an entire cross-examination around. Jackson let
the point slide by, and then ultimately got burned by Chobert's and
Jones's recantations of seeing Right from the crime scene.
The painful irony is that Mumia's dreadlocks symbolized at the
trial his allegiance with MOVE, which was an explanatory point for
why the killing occurred; and yet, those same dreadlocks, through a
skillful cross-examination of Scanlan, could have been a powerful testament
to the fact that he was not the shooter.
***
We had expended a considerable amount of resources searching for
Cynthia White, without success. Without the ability to put White on
the stand, we had to settle on other ways of undermining her credibility
as a witness. I had naively counted on destroying Cynthia White
as a witness through the testimony of Robert Harkins. The prosecution
team, of which Judge Sabo was a de facto member, sabotaged
that effort. But all was not lost, by any means.
White had thirty-eight prior arrests for prostitution in Philadelphia
and three open cases awaiting trial when she took the stand.
Significantly, those thirty-eight arrests were accumulated over a twentymonth
period, from May 1980 to December 1981; from mid-December
1981 to the start of Mumia's trial, White went arrest free, even though
she admitted to continuing to ply her trade during that six-month
period. That paper trail strongly suggested she was receiving favorable
treatment by the police.
She also had an extensive history of providing false information
to law enforcement, and frequently revised her account over time to
conform to the prosecution's theory. For example, she initially described
the shooter as shorter than five feet eight-Mumia stands six
feet one. She later tried to minimize the significance of this observation
with the claim that she was poor at judging height. She implausibly
insisted that it is possible to view Mumia, who is unquestionably a
tall man, as being "short." She also initially claimed at the preliminary
hearing back in January 1982 that Mumia brandished a gun in his
left hand as he ran toward the officer. She later retracted that point,
evidently because it didn't make sense in view of the fact that Mumia
is right-handed and had a holster on his left side (which would call
for retrieving a gun with the right hand). She oscillated between
saying that the shooter wore a hat and that he had dreadlocks. Finally,
she initially told police with respect to Billy Cook and Officer
Faulkner, "there was no struggle" between the two; she then gradually
developed a graphic account of Cook punching Faulkner in
the face. Each of her revised accounts came about in the wake of an
arrest (the first on December 12, and the last taking place on December
17, after which she went arrest-free for six months), a fact
that White admitted at trial was not coincidental. Indeed, a poster
was displayed in Philadelphia precincts advising that any arrests of
Cynthia White were to be routed to the Homicide Division. She
understood that law enforcement regarded her as a valuable witness,
and she was savvy enough to know how to parlay that importance
to secure benefits for herself.
Veronica Jones, the other prostitute witness who ambushed Jackson
with her recantation when she testified at the 1982 trial, had the
potential to undermine White. She had begun to say, before Judge
Sabo blocked further elaboration on the subject, that she and other
prostitutes were offered the same deal that White was offered: they
could work the streets with impunity if they would inculpate Mumia.
It was difficult to corroborate Jones's truncated but momentous allusion
to police manipulation without Cynthia White, whom we had
feverishly tried to locate. But we were able to acquire evidence that
certainly bolstered Jones's spontaneous remarks at trial. On August 1,
Robert Greer, an investigator who briefly helped Jackson with Mumia's
case until money ran out, testified.
Greer was a classic private investigator-gruff and wizened by over
twenty years of law enforcement experience. He testified that when he
attempted to interview White before the 1982 trial he was unable to
do so because two men, who he surmised from his own law enforcement
experience were plainclothes police officers, were always nearby
in a small red car. In Greer's judgment, and he reported this to Jackson,
White was being shadowed and protected by undercover officers-
an observation bolstered by the documentary record indicating
that White was never arrested by the Philadelphia authorities for the
six-month period leading up to Mumia's trial. This explains why Jackson
had expressed to Judge Ribner that he suspected White was being
manipulated by law enforcement. Jackson understandably was reluc-
tant to elaborate on that point in open court back in 1982 because
he didn't want to tip off McGill that he had an investigator who was
trailing a key prosecution witness.
Furthermore, it turns out that White had been arrested on five
occasions between May 1980 and July 1981 by two police officers,
Richard Herron and Joseph Gioffre, who were later convicted in connection
with the federal probe into Philadelphia police corruption. In
each of those instances, the charges against White were dropped. During
this period, Herron and Gioffre were shaking down prostitutes
and pimps for protection money, and one way they accomplished that
extortion was to make arrests and then, for the right financial arrangement,
see to it that the arrest was not ultimately processed for prosecution.
Jackson's suspicions about White's connection to this police
corruption, it turns, out, was worth exploring.
Another clue to the suspicion that White had some sort of arrangement
with Philadelphia law enforcement rests with an event in
1987. In June of that year, White found herself again incarcerated,
this time on armed robbery charges. She appeared in court for bail,
and the judge noted that he was reluctant to release her because of
her record of "seventeen failures to appear" and "page after page" of
arrests. In a jam, White called Detective Richard Culbreth for help.
Detective Culbreth acted as White's "police escort" at Mumia's trial.
He appeared alongside White at a bail hearing and convinced the
reluctant judge to free her without posting bail. Detective Culbreth
had accomplished this amazing outcome after he informed the judge
in a bench conference of White's involvement in Mumia's trial.
Finally, the most important proof that White's seamless narrative
was a concoction centers on medical evidence. Science is the best way
to refute testimony, because science, so long as it is valid science, rises
above the vagaries of human motivation and behavior. With no money
to retain a pathologist, Jackson was unable to make a point that would
be crucial to attacking White's testimony. The prosecution's trial theory,
based upon White's testimony, was that Jamal was shot by Faulkner
as he (Faulkner) was falling to the ground. A defense pathologist
could have shown that the prosecution's theory, rooted in White's
testimony, was physically impossible.
***
We retained John Hayes, M.D., an associate city medical examiner
from New York City, to look over the medical records of Mumia's
gunshot injury. He testified at the hearing on August 4. I had previously
encountered Dr. Hayes as a prosecution witness in a New York
City murder case I had tried. I cross-examined him in that case. Len,
appropriately, handled the examination of him now.
According to Dr. Hayes, Mumia had suffered a gunshot wound
in the right chest just below the right nipple, and the bullet traveled
in a straight line, backward and downward through his right lung, his
diaphragm muscle, the right side of the liver, striking the twelfth rib,
and ending up between the twelfth vertebrae of the spine and the first
lumbar vertebrae, on the back, left-hand side. In Dr. Hayes's opinion,
which the prosecution never even attempted to contest, the gunshot
causing Mumia's wound had to have been angled downward toward
his torso (assuming, as the prosecution does, that Mumia was standing
upright when shot).
This downward angling of the gunshot was inconsistent with the
prosecution theory at trial that a standing Mumia was shot by a falling
Officer Faulkner. The prosecution had two avenues of explanation to
undercut the value of Dr. Hayes's testimony: (1) that Faulkner could
have angled the gun in a downward direction with his arm as he was
falling; or (2) reviving the "ricochet and tumble" theory relied upon
by McGill (the bullet ricochet off bone within Mumia's torso and
then tumbled in a downward direction.) Neither passed the laugh test.
The first explanation suggests that Faulkner fired his gun with his arm
configured in an odd position, which is doubtful because that would
probably have been noticed by the prosecution eyewitnesses. The "ricochet
and tumble" theory was simply wrong, as the X rays conclusively
established that the bullet traveled through Mumia's torso without
any deflection. Dr. Hayes testified, without rebuttal, that a ricochet
would have left some physical indication that could be detected in an
X ray.
There was, in short, no realistic way that Faulkner could have shot
Mumia as he was falling-the prosecution's theory of how the shooting
took place was, plain and simple, wrong. McGill had made a
choice to take White over Harkins. With White's account conflicting
with rock-solid scientific evidence, that left Harkins. And his account
could not in any way be reconciled with the theory that Faulkner had
fired his gun after he had been hit in the back with a bullet. Under
Harkins's account, Mumia had to have been shot sometime before the
shooter grabbed Faulkner, spun him around, and then fired into his
back as he struggled to regain his balance. I became convinced over
time that Harkins was a disfavored witness to McGill because he only
deepened the mystery over when, and under what circumstances, Mumia
was shot.
***
At the end of the day on August 4, a Friday, Len addressed Judge
Sabo on what, in a normal court proceeding, would be just a housekeeping
matter. We were still trying to assemble exhibits from the
original trial and were having some logistical difficulties. Len was asking
that the proceedings resume on Tuesday, thus giving us Monday
to take care of the logistical problems. Judge Sabo refused the request,
noting that "maybe the DA will call some of their witnesses on
Monday."
Len ruffled what little hair he had on the top of his head, a
mannerism of his that I have come to notice reflected tension. "I know
the court is concerned about the prosecutors, but there are two parties
here," he said bitterly.
Judge Sabo's rancor matched Len's bitterness. "I am concerned
with getting witnesses on that witness stand and testifYing under oath
in this courtroom as to what they know about this case. That's what
I'm interested in. I'm not interested in a lot of hot air. I've had enough
of that. It's hot enough outside."
The judge was right about the weather; it was a grotesquely hot
summer in Philadelphia. Mter court we usually went straight from the
air conditioning of the courtroom to the air conditioning of our hotel,
with brief obligatory stops at daily rallies and media microphones
outside city hall. The stifling heat wasn't conducive to exercising,
which only exacerbated the stress.
"I wish the court wouldn't characterize advocacy as hot air," Len
protested. He then proceeded to rebuke Judge Sabo for acting contrary
to the Canon of Judicial Ethics. "You should conduct yourself as the
canons require," he concluded. 1 gave a slight smile at that, because
Len had told me years earlier that 1 should carry the canons with me
when appearing in court to remind judges not to come down too hard
on young lawyers.
"Don't tell me how to conduct myself," Judge Sabo retorted angrily.
"You are a New York attorney. When you come to Pennsylvania,
you show the proper respect to this court. And 1 am telling you one
more time 1 am not only going to evict you but 1 am going to fine
you a thousand. That's not a threat, that's a promise."
Len, Rachel, and 1 remained concerned about the judge removing
us from the case. We knew that he had the authority to do it, and
we didn't trust the Pennsylvania judicial system to stand in his way.
That is why Rachel bit her lip and apologized after she spent a few
hours in lock-up. Len wisely backed down and allowed the proceedings
to dissolve into the much-anticipated weekend.
***
Jesse Jackson showed up at the city hall courthouse on Monday,
August 7. He came not only to observe the proceedings but to provide
spiritual comfort to Mumia. The two talked privately. The meeting
prompted discussions in the defense team over the possibility that
Mumia would dispatch a conciliatory message to Maureen Faulkner.
1 was 100 percent in favor of the overture. Rachel was understandably
wary. She felt that it could backfire on us, in part at least because it
could be misconstrued as a tacit admission of guilt. 1 argued that the
message could be drafted to disabuse anyone of that notion, but 1 was
sympathetic with Rachel's cynical outlook toward the media. More-
over, it was unclear how Maureen would react to any direct communication
from Mumia. Mumia wanted to reach out to her, but he
suspected that she would never accept an overture on his part that
contained any suggestion that he did not kill her husband. In the end,
we opted not to reduce anything to writing, and Mumia passed along
a conciliatory oral message to Maureen through Reverend Jackson.
August 7 was a special day for us. With Reverend Jackson in the
audience (coincidence or not, I don't know), Judge Sabo announced
that he was now prepared to act on the stay of execution application.
"We still have the question of the stay of execution here," he unexpectedly
began. "And today is August seventh. The execution date is
August seventeenth. It's getting rather close." Mumia tended to slouch
a little in his chair, which I enjoyed witnessing because it reflected his
confidence in how we were handling the courtroom presentation. He
certainly never slouched in the 1982 trial. I noticed, however, he
quickly came out of his slouch when he realized what Sabo was about
to do. "And at the rate we're going, I don't see when, I don't even
know when we're going to finish," the judge continued. "And then
from here it is an automatic appeal to the Pennsylvania Supreme
Court. I am sure they are not going to be able to resolve that issue
before August the seventeenth. And from there you are going into
federal court. And I'm sure no one along that line is going to be able
to make all of these decisions before August the seventeenth of 1995."
It was slow in coming, and it was obviously difficult for the cantankerous
judge to capitulate. "Based on that reason alone, because this
is the first PCRA petition, as I understand it, he is legally permitted
to argue that one all the way up to the highest court in the land,
including the United States Supreme Court. And I can't see that happening
before August the seventeenth of 1995, and for that reason
and that reason alone, I will grant your stay of execution."
The courtroom erupted into applause. Nobody noticed that implicit
in the judge's announcement was an admission on his part that
he had no intention of granting our PCRA petition, even though the
evidence was not all in. After all, he was emphasizing Mumia s right
to appeal. "Calm down," Judge Sabo said, not as a rebuke but as the
beginning of a refutation. "Don't be too happy because that's only for
this one." If anything exposed Judge Sabo's utter bias, his behavior at
that moment did. He didn't want to grant that stay, but it is my guess
he was forced into it by superiors within the Philadelphia justice system.
The international pressure for a stay had become intense, with
letters, faxes, and phone calls swamping the clerk's office from allover
the world. My favorite communiques were from Nelson Mandela and
Archbishop Desmond Tutu. It was gratifying to feel a link to those
two freedom-loving individuals. Judge Sabo couldn't abide the cheering,
not because it disrupted the proceedings but because it signified
that he had succumbed. He told the crowd "Don't be too happy,"
childishly insisting upon having the last word, if only to underscore
that he was not going soft.
The police officers attending the hearings were visibly upset. One
of them told a coterie of reporters, "It makes you wonder, maybe we
should have executed him at Thirteenth and Locust where he executed
Danny Faulkner."
Mumia's public reaction was tepid and impersonal. He told an
interviewer shortly after the announcement, "I am not under an active
death warrant, although I remain under an active death sentence; thus,
I still sojourn in hell." He offered no spontaneous reaction, either
through words or gesture, upon hearing Sabo's announcement. This
man who hadn't let an hour pass without verbally jousting with the
judge during the trial; this man who had spoken eloquently and often
in a vain effort to recapture control over his own case; this man,
throughout the PCRA proceedings thirteen years later, sat completely
silent, infrequently whispering commentary to one of us lawyers. Now
this lover of words and people, this incarcerated soul who hungered
for meaningful human contact, seldom engaged in banter during the
breaks in the proceedings. Long stretches of time alone in a cell clearly
had affected him. His writings had become analytical and distant. He
now tends to absorb events and then transmute them in his mind
into intellectual abstractions. He feels comfortable in the realm of
ideas-a realm that the state of Pennsylvania could not trespass upon
until such time, if it should come to pass, that the liquid in the needle
of death is drained into his veins. So his detached reaction to the stay
of execution, and to all else that occurred in the courtroom, seemingly
flowed from what he had been forced to become as a human being.
Many times I had wanted to grab his shoulders and ask him to
speak of how he was really feeling. "What are you feeling, Mumia?
What do you long for, and what do you regret? Are you still able to
love?" Maybe someday.
***
We were back in court on Wednesday, August 9, and Judge Sabo
was peeved about the media coverage of his decision to grant the stay.
His first remarks from the bench were directed at our table, accusing
us of misrepresenting the reason why he had granted the stay. Len,
Rachel, and I had, indeed, gloated to the media and the throngs of
supporters that we won that particular showdown with Judge Sabo.
We needed to gloat as an outlet for our frustrations at having to deal
with aggressive prosecutors who had an embittered judge in their hip
pocket. Len in particular cited the "tens of thousands of people around
the world who supported Mumia" as the reason for the stay. It was
important, from an organizational standpoint, to infuse the support
network with a sense that their vigilance was paying off.
In any event, we felt that it was, in fact, true that Judge Sabo was
forced to capitulate. It may have been the result of the powers that
be in the court system that twisted his arm; but someone within the
system felt the heat from the protests. But Judge Sabo didn't want
that suggestion to go unrebutted. "I did not issue the stay because
Jesse Jackson had anything to do with it," he announced to the audience
and the reporters in particular. "Nor did I issue the stay because
of any national or international pressure. I did it because the law
required it to be done."
This was pure nonsense, as we had argued vociferously back on
July 12, and almost daily during the proceedings, that a stay was
legally required, and yet Judge Sabo had repeatedly refused to issue
the stay. "I told you at the very beginning that this little old judge in
this little old courtroom will not buckle under any kind of pressure,
whether it be national or international."
***
"I know who shot the cop, and I ain't never gonna forget it." With
those words spoken thirteen years before, Chobert played his part in
the prosecution's mission of securing a conviction against their prized
defendant. But Chobert was an ambiguous witness, notwithstanding
his unambiguous identification at trial of Mumia as the killer.
He never had the opportunity to observe Mumia in an upright
position before identifYing him to the police. Mumia was crouched
in a police van, bleeding from the head and chest, when Chobert
peered inside. Had Mumia been able to stand for an on-the-scene
identification, Chobert might not have been so quick to identifY him
as the shooter. He admitted that Mumia didn't fit the physical description
he gave of the shooter. He described the shooter as heavyset,
weighing about 225 pounds-some 55 pounds heavier than Mumia.
This shooter, who Chobert said "ran away," was wearing a light tan
shirt and jeans-colors far more subdued than the bright red and blue
ski jacket worn by Mumia on that fateful night.
Chobert delivered a devastating blow to the defense apart from
his identification testimony. When Jackson asked about his statement
to homicide investigators that the shooter "ran away," Chobert stunningly
renounced the claim. "It was a mistake, just a mistake," he
insisted. Jackson tried to shake Chobert, but that only fortified him.
Jackson went after Chobert from another angle, confronting him
with his criminal record. McGill, however, objected. At a sidebar conference,
Chobert told the judge, "I threw a bomb into a school, a
Molotov [cocktail] ... I got paid for doing it." Chobert was still on
probation for his conviction on this offense and Jackson wanted the
jury to consider it so that they would have the full measure of the
man who they were asked to believe. Judge Sabo sided with McGill
and barred Jackson from doing so.
Jackson completely missed a more fruitful attack. Chobert didn't
only say that the shooter fled, he also gave an account of what he
personally did in the wake of the shooting. He stepped out of his cab
and walked toward the scene of the shooting to see if he could help the
fallen officer. Now, that's odd, I thought. Why would he do that? If,
as he claimed at trial, the shooter remained at the scene, still armed,
wouldn't he be jeopardizing his own life? I thought of Harkins: he
drove off immediately because he feared being shot. Chobert would
never have walked into the line of fire where a cop killer remained
fully armed and capable of killing him. That he walked toward the
sidewalk where the officer lay dead-a fact confirmed by police reports
indicating that arriving cops told him to go back to his cab-powerfully.
confirmed that, in fact, he saw the shooter run away, just as
he claimed to homicide investigators at the scene. Jackson never
caught the absurdity of Chobert's revisionist account at trial.
The new prosecutors attempted to push these facts aside, arguing
that Chobert had no fear of the shooter because he had been shot.
Chobert, however, testified that he was unaware that Mumia had
been shot. Nor could the prosecution say that Chobert felt there was
safety in numbers, as he saw no one else at the crime scene other than
Billy Cook.
We knew that there had to be more to this story. Why would he
walk toward the crime scene when the armed killer was sitting on the
curb? How could he have mistakenly told police that he saw someone
"run away" a distance of some thirty steps eastbound on Locust Street,
which happens to be the approximate distance of an alleyway that
would have been a convenient escape route for the killer? Was it just
a coincidence that Chobert's observation of flight from the crime scene
matched that of other witnesses? There had to be more. We put Chobert
on the stand during the latter part of the 1995 proceedings to find
out if we could bring the full story to light.
We didn't expect Chobert to be a friendly witness. He really had
no reason to be. During the trial in 1982, he had been led to believe
that his life was in danger by testifying. He was put up in a hotel and
provided police protection (two cops who stayed in the room next
door) for a few weeks before his testimony-all for his own safety, he
was told. He had no doubt in his own mind that Mumia was the
killer, notwithstanding what he had reported to the police just minutes
after the shooting.
We knew from the trial transcripts that Chobert was driving a cab
and that he was on probation. We also surmised he had a drinking
problem, because he had two prior DWl convictions. How was it that
he was driving a cab? Wouldn't he have difficulties getting a chauffeur's
license?
Len asked Chobert, "Do you recall if back in 1981 or 1982
whether or not you had a conversation with the district attorney who
was prosecuting this case-Joe McGill-about your driver's license?"
"Yes, I did," Chobert answered.
A conversation between a witness and the prosecutor about how
the witness earns his living? That is certainly worth pursuing. So that
is what Len did.
"Do you recall what he said to you at that time?"
"Well, he said he'll look into it," Chobert explained.
The law is very strict on a prosecutor's obligation to turn over all
information concerning any agreements, formal or informal, between
a witness and the prosecuting authorities. A defense lawyer is entitled
to that information for use in cross-examination, because a jury is
entitled to consider whether such agreements might affect a witness's
testimony. Chobert wasn't giving expansive answers-a reticence
that was in keeping with the way he answered questions at the 1982
trial-and he surely wasn't giving us evidence of a detailed, formal
agreement. But he was giving us more than we had expected going
into these proceedings. We thought we would hit a brick wall with
Chobert.
I slipped Len a note. I figured if McGill said that he'd look into
Chobert's driver's license situation, it must have been Chobert who
initiated the conversation. It only stood to reason, by my calculation,
that this would be true, given that prosecutors are reluctant to extend
favors or benefits to a witness unless absolutely necessary. McGill
surely knew that to do so would require disclosure to the defense,
which would create an avenue of cross-examination. A prosecutor
much prefers a clean witness unburdened by any such favoritism. I
suggested in the note that Len ask Chobert whether he initiated the
discussion.
"And when he said he'll look into it, that was in response to
something that you had mentioned, was it not?"
Chobert admitted that he had initiated the discussion. "I asked
him if he could help me find out how I could get my license back,"
he replied in his typical laconic style. Chobert went on to explain that
his chauffer's license had been suspended, which meant that he had
been violating his probation by driving illegally. While McGill offered
a carrot-to try to get the license back-it also carried a stick-the
threat to Chobert's probation because of his continuing driving violation.
Thus, Chobert was reaching out to McGill out of economic
and penal necessity: he wanted to continue to earn a living and he
didn't want to go back to jail for violating the terms of his probation.
When McGill stated that he would look into the situation, Chobert
expected that he would be receiving his assistance and his benevolence.
This was the best answer we could get, under the circumstances.
The whole point to this line of questioning was not only that McGill
and Chobert had a secret agreement, but that Chobert's state of mind
was affected by it. Because Chobert raised the subject, it was obviously
something that was important to him. McGill's willingness to help
him could only have created an alliance between the witness and the
prosecution, and the defense should have been told about it.
Because Jackson was kept in the dark about McGill's conversation
with Chobert, so was the jury. Was this the reason Chobert testified
that he was "mistaken" in telling investigators that the shooter "ran
away"? Chobert wasn't about to admit in 1995 that he perjured himself
at the 1982 trial. Instead, he clung to his claim that his trial
testimony was the truth and that his statements in the police reports
were a mistake. But Chobert's revelation at the 1995 hearing put
things in their proper context. It provided a reason-a compelling
reason, a jury might well conclude-for Chobert to slant his testimony
in the prosecution's favor. It reinforced the highly suspicious nature
of Chobert's trial testimony, particularly in regards to his conduct at
the scene immediately after the shooting stopped. The only reasonable
inference that could be drawn from all of the evidence is that Chobert
did see the shooter run, and that shooter was considerably huskier
than Mumia. With the shooter gone from the crime scene, Chobert
felt it was safe enough to approach the wounded officer. He must have
assumed that the arriving officers apprehended the fleeing shooter and
placed him inside the police van. He identified Mumia, in all likelihood,
based upon the assumption that he was the apprehended fleeing
shooter, without having the opportunity to view Mumia's stature and
weight. Nor was he able to see Mumia's brightly-colored ski jacket, as it
had been removed when he was thrown into the van. Had Chobert been
able to see Mumia in a standing position wearing his ski jacket, he probably
would not have identified Mumia as the shooter.
McGill proved himself to be a shrewd prosecutor throughout the
1982 trial. The Chobert revelation exposed him to be ruthless. Mc-
Gill, knowing that evidence undercutting Chobert's credibility existed,
misled the jury by asking rhetorically: "What motivation would Robert
Chobert have to make up a story within thirty-five to forty-five
minutes later?" He brazenly suggested to the jury that Chobert had
come in to testifY without any taint of prosecutorial influence, knowing
full well that he had had a questionable conversation with Chobert
and that Jackson had no way of challenging his argument to the jury.
***
The "fleeing man" theory that Jackson had tried to develop at trial
rested on a crucial premise-namely, that a third civilian, aside from
Mumia and his brother, was at the scene with Officer Faulkner. The
prosecution's theory of the crime rested on the equally essential premise
that only two people were at the scene with the officer at the time
of the shooting. Mumia's fight to prove his innocence, in large measure,
hinged on our ability to undermine the prosecution's jealously
guarded two-person theory. At the very least, evidence that raised the
possibility that a third person was at the scene would puncture the
image of a reliable open-and-shut case while simultaneously bolstering
the observations of various witnesses that someone fled toward a
nearby alleyway. We learned during the 1995 proceedings that the
prosecution suppressed physical evidence that would have allowed the
defense to do precisely that: undermine the prosecution's two-person
theory.
Homicide investigators actually initiated an investigation in
1982-without following through-into the possibility that a third
person was at the crime scene and that this third person fled. On the
night in question, police picked up at least three black males-Cynthia
White's pimp (known on the street as Sweet Sam), Billy Cook's
business associate (a man named Kenneth Freeman), and one Arnold
Howard-for questioning as possible suspects to the shooting. We
put Arnold Howard on the stand on August 9.
Howard, a lanky, wiry, and talkative black man, had known Mumia
since he was a child. "We grew up together in the same neighborhood,"
he explained in his testimony. He was extremely thin, a
consequence of having his stomach surgically reconstructed as a result
of five gunshot wounds he received in 1989. In the predawn hours of
December 9, 1981, more than five law enforcement officers picked
up Howard at his home in connection with the Faulkner shooting
investigation. He was taken to the homicide precinct, known as the
Roundhouse, for interrogation and for placement in a lineup. Additionally,
Howard described how the police "put some kind of powder
on my hands."
"Did the officers tell you why they were checking your hands?"
Len asked.
"Yes, they said by my license being found at the scene of a homicide,
that I was somewhat involved in it," Howard explained.
"Now, besides this test of your hands or whatever was done with
your hands, were you asked to participate in any other kind of process?
"Yes, they put me and a Kenneth Freeman into a lineup."
Freeman worked with Billy Cook in a makeshift business, selling
jewelry, hats, scarves, rolling papers, and other knickknacks from a
self-constructed mobile shack. The two frequently rode together in
Cook's Volkswagen. Howard explained that he had given his driver's
license to Freeman a few days earlier.
Howard kept referring to his driver's license, but what he actually
was referring to was a driver's license application form, which also
served as a temporary driver's permit. There was no dispute that this
document was found in the front pants pocket of Officer Faulkner-a
fact that the prosecution disclosed for the first time at the 1995 hearing.
The problem, of course, was that Jackson was never told about
it back in 1982 when the information could have been put to use for
Mumia's benefit. What was Faulkner doing with Howard's driver's
license? Interestingly, prosecution witness Michael Scanlan testified
that he saw Faulkner examining a document in his hand early in the
encounter between him and Cook. Jackson had let that testimony slide
by as an insignificant detail, understandably, as he had no reason to
know or suspect that this document belonged to a third personthanks
to the prosecution's suppression of that fact.
Howard explained to homicide detectives that he lent the document
to Freeman; they were justifiably dubious. If Howard was in
fact at the scene and somehow involved in the shooting, he wouldn't
be inclined to admit it. The fact of his license being in Faulkner's
possession strongly suggested that he was there.
"Incidentally, Mr. Howard, were you there?" Len was referring to
the crime scene.
"No, sir," Howard said firmly.
"Did you produce proof to the detectives as to your whereabouts
at the time of the occurrence?"
"Yes, I did. A sales receipt from Path mark on Aramingo Avenue"
-a location some distance away from Thirteenth and Locust St.
The sales receipt indicated a time of 4:00 A.M. Howard had an alibi,
and, remarkably, it was good enough to satisfy the homicide investigators.
If it wasn't Howard in the Volkswagen with his own driver's license,
then who was? Ken Freeman was the logical answer, not only
by virtue of Howard's claim that he lent the document to him but
also because Freeman was Cook's business partner. Len probed Howard's
knowledge about Freeman, but the prosecutor, a woman named
Arlene Fisk, who had inexplicably taken over the lead role (Joey Grant,
without explanation, left the prosecution team), blocked the inquiry
with persistent objections. Fisk struck me as extremely bright, and
much more pleasant to deal with than Grant or Burns, both of whom
enjoyed affecting a macho veneer. Her lack of a hard edge, however,
didn't dampen her aggressive advocacy.
Freeman had died on the night that the MOVE house on Osage
Avenue was firebombed. Len asked Howard ifhe knew anything about
the circumstances of his death. "My understanding is he was handcuffed
and shot up and dumped up on Grink's lot on Roosevelt Boulevard,
buck naked," Howard said. In fact, Freeman died under highly
mysterious circumstances. He had been brought to a hospital in a
police vehicle, gagged, bound, and naked. The death certificate indicated
he had died of a heart attack. He was thirty-one with no history
of heart problems.
"He was handcuffed?" Len followed up.
"Yes."
"And shot?"
"No, shot up with drugs."
"And to your knowledge, did Ken Freeman have your license on
the night in question?"
Howard nodded. "Yes, he did."
We were pleased with the information Howard provided. By itself,
the undisputed fact that the deceased officer had within his clothing
a driver's license belonging to a third person is more than just an
interesting fact having a slight bearing on the question of Mumia's
guilt or innocence, as it raises a question about the reliability of the
prosecution's two-person theory. But in view of the remarkable fact
that numerous independent witnesses saw Bight from the scene of the
crime (a fact never considered by the earlier jury), this uncontested
item of physical evidence was tremendously significant. The eyewitness
accounts and the driver's license mutually reinforce the indispensable
message that the jury would have received in a genuinely fair trial
proceeding-namely, that the prosecution's theory that only two
people were at the scene who were in a position to shoot the officer
is too unreliable to justify a conclusion of guilt beyond a reasonable
doubt.
Most intriguing, Howard's testimony also increased the importance
of Scanlan's observation of the shooter wearing an Afro, since
Freeman sported one.