Executing Justice: An Inside Account of the Case of Mumia

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

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

It is tempting to pretend that minorities on death row
share a fate in no way connected to our own, that our
treatment of them sounds no echoes beyond the
chambers in which they die. Such an illusion is
ultimately corrosive, for the reverberations of injustice
are not so easily confined.

-- JUSTICE WILLIAM BRENNAN, MCCLESKEY V. KEMP


8. RACE AND THE DEATH PENALTY

Racism, while most visible in the jury selection process, is a
virus that permeates the entire machinery of death. It feeds on
discretion.

The essential dilemma in death penalty jurisprudence is applying
discretion in a nonarbitrary and nondiscriminatory manner while allowing
it to exist within the criminal justice system. Discretion permits
the system to take into account the individualized circumstances of a
capital defendant and of the crime itself. The system of capital punishment
in this country strives to include everyone within the ambit
of the death penalty who supposedly deserves that punishment, while
excluding everyone who, for reasons of innocence or particular circumstance,
even if guilty, should not be put to death. This effort to
avoid over- and underinclusion necessarily mandates that some degree
of discretion be permitted in the criminal justice process when it
comes to applying the death penalty.

Therein lies the problem. While discretion exists within the death
penalty process in order to humanize it, discretion creates space for
the evils of racism. Racism has always existed in nineteenth- and
twentieth-century death penalty jurisprudence in the United States.
In fact, the death penalty, many scholars have noted, is a relic of
slavery and racial violence in the United States. Supreme Court justice
Thurgood Marshall expressed precisely this thesis in one of his capital
punishment opinions: "The criminal law expressly differentiated between
crimes committed by and against blacks and whites, distinctions
whose lineage traced back to the time of slavery."

Undeniable racial disparity in the application of the death penalty
has been a key piece of ammunition in the abolitionist's rhetorical
armory. When the Supreme Court struck down the death penalty in
the United States in 1972, racial disparities in defendants sentenced
to death was a decisive impetus for some of the justices on the Supreme
Court to rule the death penalty unconstitutional. But when the
Supreme Court approved in 1976 new death penalty statutes that
seemingly corrected the problems of discrimination and arbitrariness,
capital punishment litigators renewed their watchful eye on how the
death penalty was being applied, assured that it was just a matter of
time before statistical evidence would confirm that capital punishment
is a fundamentally racist institution that has no place in a civilized
society.

In the mid-'80s, the NAACP Legal Defense Fund concluded that
the time had come for a powerful challenge to the death penalty with
the statistics it had been waiting for. Warren McCleskey was, in 1978,
just another black man in Fulton County Superior Court in Georgia
sentenced to die for killing a white police officer. After several unsuccessful
appeals to the Georgia Supreme Court, lawyers from the Legal
Defense Fund presented evidence in federal court on McCleskey's
behalf that had the potential to end capital punishment in this country
once and for all. Lawyers for McCleskey presented statistical evidence,
packaged in a study conducted by Professors David Baldus and George
Woodworth in which over two thousand murder cases in Georgia were
examined, that showed that the death penalty was imposed in a racially
discriminatory manner. The study demonstrated that in Georgia, between
1976 and 1980, defendants charged with killing whites were
4.3 times more likely to receive the death penalty than those charged
with killing blacks. It concluded that black defendants charged with
killing whites were more likely to receive a death sentence than any
other racial combination. The study also found that prosecutors would
more frequently seek the death penalty when the victim was white
and the defendant was black.

When the case was accepted for review by the U.S. Supreme
Court, hopes among many ran high that this would be the case that
delivered the knockout blow to the death penalty. I was a law student
in the spring of 1986 and I was taking a capital punishment seminar
taught by the lead lawyer in the McCleskey case, Jack Boger of the
NAACP Legal Defense Fund. Jack recruited me to work on the statistical
issues in the case, and during that spring and early summer I
contributed what little I could as a law student. Naive as I was, I
couldn't imagine the Court not being bowled over by the statistical
evidence. But in a highly controversial 5-4 decision issued in 1987,
the Supreme Court rejected McCleskey's claim that the death penalty
was unconstitutional under the Equal Protection Clause of the Fourteenth
Amendment to the Constitution because of its discriminatory
nature. It was my first real lesson in the realities of lawyering: law is
not like buying a refrigerator-there are no guarantees.

Justice Lewis Powell authored the majority decision, arguing that
McCleskey had failed to show that the decision makers in his particular
case acted with a discriminatory purpose. A mere showing of
discriminatory impact, which was undeniable in the Baldus study, was
insufficient to infer discriminatory purpose, and therefore, insufficient
to prove a constitutional violation. The majority also rejected the claim
that the death penalty violated the Eighth Amendment (the amendment
that outlaws cruel and unusual punishment) because it was applied
in an arbitrary manner in which racial prejudices influenced
whether prosecutors seek the death penalty and whether juries impose
it. The majority acknowledged that racial prejudice may influence a
jury's decision. But in a conclusion that was very much a throwback
to the infamous Dred Scott decision in which the Supreme Court
stated that a black person does not have rights that a white person is
bound to respect, the majority found that the documented virus of
racism within the death penalty machinery was constitutionally acceptable.
Indeed, the Court ruled that statistical disparities would inevitably
result from the necessary discretion given to prosecutors and
juries, and that the Constitution does not "place totally unrealistic
conditions" on the use of the death penalty-as if expecting our criminal
justice system to be free of the taint of racism is a totally unrealistic
condition.

Four justices dissented (Brennan, Marshall, Blackmun, and Stevens),
issuing strongly worded opinions attacking the insensitivity of
the majority. "We as a people ignore [Warren McCleskey] and what
his case stands for at our peril," Justice Blackmun cautioned. "We
remain imprisoned by the past as long as we deny its influence on the
present. The destinies of the two races in this country are indissolubly
linked together. The way in which we choose those who will die
reveals the depth of moral commitment to the living."

Justice Brennan, the studious conscience of the Court, correctly
observed that the majority was afraid to accept the implications of the
Baldus study. There was no reason to expect that racial disparities in
the criminal justice system only existed in death penalty jurisprudence;
ruling in favor of McCleskey would put the Court on a slippery slope
where the entire criminal justice edifice could collapse under the
weight of racism. Indeed, the majority opinion itself suggested that a
finding in favor of McCleskey could throw "into serious question the
principles that underlie our entire criminal justice system." Accepting
the Baldus study as a predicate for constitutional analysis would, Justice
Brennan said, "open the door to all aspects of criminal sentencing."
Stripped to its core, Brennan said, the McCleskey case reflects a
fear of "too much justice."

In 1994, Justice Blackmun revisited the travesty of the McCleskey
decision with a personal account of his deep disaffection with the
death penalty. He underscored the fact that the Baldus study provided
"staggering evidence of racial prejudice," which the Court turned its
back on, and that "race continues to playa major role in determining
who shall live and who shall die." He then struck the most disturbing
note of all. Georgia, Blackmun noted, had done more than most other
states to erect a nondiscriminatory system, yet it "was still unable to
stamp out the virus of racism." [1] Justice Antonin Scalia, the most
staunchly pro-death penalty justice on the Court, wrote that race discrimination
is "real, acknowledged in the decisions of this court, and
ineradicable." [2] This single fact, which the Court submerged from view
in its opinion, suggested that the Court was willing to accept the
inevitability of racism within capital punishment because, when it
came to a choice between accepting racism as inevitable within capital
punishment and jettisoning the death penalty, the Court opted for
the former.

A few years after the McCleskey decision, another justice spoke of
the decision. Justice Lewis Powell-the one who cast the swing vote
and wrote the majority decision-revealed to his biographer that he
had changed his mind about McCleskey, regretted that he had voted
as he had, and had come to believe that "capital punishment should
be abolished." [3] If anything should demystify the law, this revelation
should. The death penalty survives today, as flawed as it is, not because
the majesty of the law, as some reified entity existing apart from the
vagaries of the human condition, decrees that it be so; it survives only
because a slim, momentary majority voted against Warren McCleskey.

The majority decision in McCleskey ended its constitutional analysis
with this simple piece of advice: take it to the legislatutes. Statistical
evidence of racial discrimination is not a constitutional matter, the
majority reasoned, but a legislative matter that is best considered in
the political arena. McCleskey exemplifies what has been happening
with death penalty jurisprudence over the past three decades. The
United States Supreme Court has gradually shifted to a hands-off
approach to death penalty jurisprudence-a shift toward the "deregulation
of death" as court-watchers and death penalty scholars have
dubbed it. The case of McCleskey v. Kemp, with its final advice to
abolitionists to seek relief in the legislature, is now a landmark of
willful judicial blindness.

Efforts to arouse legislative sympathies over racial disparities have
been largely fruitless. The Racial Justice Act, a modest piece of legis-
lation that would empower federal courts to review capital cases for
possible racial bias, has bounced around the halls of Congress but has
never been passed. Between 1988 and 1994, increasingly watereddown
versions of the Racial Justice Act were formulated to ease the
queasiness felt by Republicans. During the summer of 1994, the Racial
Justice Act (packaged with the title, Fairness in Sentencing Act) nearly
made it to the House and Senate floor for a vote, but was dropped
from the Omnibus Crime Control bill in the House-Senate conference
committee. Throughout it all, the Department of Justice, with vigorous
encouragement from prosecutors nationwide, robustly argued
against its adoption.

The Justice Department's spirited opposition to the Racial Justice
Act was not based upon governmental doubts that racism infects the
application of the death penalty. After the Supreme Court issued
the McCleskey decision, the United States General Accounting Office
(GAO) published a report in 1990 that concluded that the race of the
defendant and the race of the victim demonstrably influence whether
the death penalty is imposed in the United States. The GAO examined
twenry-eight studies conducted by twenty-one sets of researchers investigating
racial disparities in the imposition of the death penalty and
found them to be valid. The GAO report concluded that in 82 percent
of the studies, race of the victim was found to influence the likelihood
of being charged with capital murder or receiving the death penalty.
"This finding was remarkably consistent across data sets, states, data
collection methods, and analytic techniques," the report indicated.
The GAO report went on to find that "more than three-fourths of
the studies that identified a 'race of defendant' effect found that black
defendants were more likely to receive the death penalty."

One way to appreciate the statistical analyses connecting race to
the death penalty is to transform our vantage point: race is more likely
to affect death sentencing than smoking affects the likelihood of dying
from heart disease. The United States government has taken no action
in one instance; swift action in the other.

The international community has not let McCleskey go unnoticed.
The United Nations Special Rapporteur on Extrajudicial, Summary
or Arbitrary Executions issued a report in January 1998, indicating
that the death penalty was imposed in a discriminatory and arbitrary
manner in this country: "Race, ethnic origin and economic status
appear to be key determinants of who will, and will not, receive a
sentence of death." It further noted that the McCleskey decision permits
United States courts to tolerate racial bias in death penalty cases.
Eighteen months earlier, in July 1996, the Geneva-based International
Commission of Jutists, which consists of respected judges from around
the world, released a 260-page report on racism in this country's death
penalty, finding that it is administered in such a way that it "cannot
be assured" that defendants receive a fair hearing. "The Commission
is of the opinion that ... the administration of capital punishment in
the United States continues to be discriminatory and unjust-and
hence 'arbitrary'-and thus not in consonance with Articles 6 and 14
of the Political Covenant and Article 2(c) of the Race Convention."

***

What about Philadelphia?

In 1998, Professor Baldus and his colleagues published a highly
detailed study of the death penalty in Philadelphia. This study revealed
that the death penalty in Philadelphia poses a "problem of arbitrariness
and discrimination ... [that] is a matter of continuing concern." The
"problem" detected by Baldus and his colleagues is that the odds of
receiving a death sentence are nearly four times higher if the defendant
is black.

Of course, there are crimes that are so horrendous-serial killing
comes to mind-that they eclipse race. White or black, some defendants
are found to have committed acts so gruesome and abominable
that a jury imposes death without regard to race. At the other end of
the spectrum, a killing may evoke less horror and shock, such as a
killing done in the heat of passion or under the influence of intoxication.
There, too, race may play no role. The true test of race as a
factor in the death penalty is how it weighs in on "judgment call"
cases-those where a jury could go either way. In cases of midrange
severity, prosecutors have tremendous discretion not to seek the death
penalty, and juries have meaningful discretion not to impose death.
Thus, the most probative examination of racism in the application of
the death penalty would focus on the midrange cases.

Baldus and his colleagues attempted precisely that. They broke
down the severity of the crime into eight categories, numbering one
through eight with one being the least severe and eight the most
severe. Where the crime falls within category five (midrange severity),
race plays a strong role in the decision making: a quarter of all blacks
receive death in this category, compared to 5 percent for other defendants.
For severity ranges of six and seven, black defendants are sentenced
to death at rates 15 percent higher than for other defendants.
For ranges three and four, the percentage differential is 8 and 11
percent, respectively. These statistical results confirm the public's
already-aroused suspicion that a black is more likely to receive the
death penalty than a white person for the same crime, according to a
June 16, 1997 Newsweek magazine poll.

In McCleskey, the Baldus study focused on the race of the victim.
Baldus and his colleagues also looked at the race-of-victim effect in
Philadelphia as well. The study, not surprisingly, showed that a black
defendant and white victim (Mumia's case, of course, fits this category)
is a deadly combination for defendants.

Armed with Baldus's data and research, and emboldened by expressions
of concern over the death penalty from other jurisdictions,
the Philadelphia City Council, on February 10, 2000, voted 12-4 for
a resolurion calling for a moratorium on executions in Pennsylvania.
Philadelphia is the largest of a growing number of municipalities in
the United States urging a halt to executions.

Philadelphia and Georgia are not the only locales with racial disparities
in the death penalty. Baldus and his colleagues examined data
in three-quarters of the states with prisoners on death row. In 93
percent of those states with available data, there is evidence of raceof-
victim disparities. In half of those states, the race of the defendant
served as a predictor of who received a death sentence. In Florida, a
defendant is 4.8 times more likely to get death if the victim was white
than if the victim was black. In Illinois, which is currently under a
death penalty moratorium, the chances increase 4 times; in Oklahoma,
4.3 times; in North Carolina, 4.4 times; and in Mississippi, 5.5 times.
In Kentucky, the 1996 death row population consisted only of defendants
convicted of killing whites. [4] In 1998, Kentucky became the only
jurisdiction to pass a Racial Justice Act bill which permits race-based
challenges to prosecutorial decisions to seek a death sentence.

The legacy of McCleskey has proven to be more powerful than the
damning and pervasive statistical evidence of racism within the criminal
justice system. The federal courts have not granted relief based
on a racial application of the death penalty in any case. The reason is
obvious: McCleskey's requirement that the defendant show purposeful
discrimination by the prosecutor or the jury in the defendant's particular
case-that is to say, to "get inside" the mind of the prosecutor
or jury-is virtually impossible. No one within the criminal justice
process will openly declare that the death penalty is being imposed on
a particular defendant because he or she is black or brown. Statistical
evidence is the only viable evidence that could be presented. Because
statistical evidence is deemed irrelevant under McCleskey, litigating a
race discrimination challenge to the death penalty is, for all practical
purposes, a monumental waste of time.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:14 am

This is my trial; this is my life on the line.

-- MUMIA ABU-JAMAL TO JUDGE SABO

Mr. Jamal is, if not the most, then one of the most
intelligent defendants by far that I have ever run across.

-- PROSECUTOR JOSEPH MCGILL TO JUDGE SABO


9. FLOWERING OF REBELLION

Mumia entered the courtroom with two armed deputies trailing
behind, one carrying a stack of files clutched against his
chest. The deputy plopped the stack on the defense table in front of
the designated chair for the defendant while the other removed the
handcuffs from Mumia's wrists. Hands liberated, Mumia pumped his
fist energetically and smiled broadly at the spectators, and many of
them reciprocated with encouraging words. He then turned his attention
to the papers stuffed in the file folders in front of him in preparation
for the first day of testimony. He said nothing to his attorney
already seated next to him.

The court crier pounded three times on the table to signal that
everyone was to come to order for the start of the court session. With
the announcement, "God save this Honorable Court," Judge Sabo,
decked out in his black robes, bounded up the steps and mounted the
bench, elevated well above everyone else. He scanned the room and
then looked to see if the court reporter was ready to transcribe the
proceedings. McGill, too, was looking expectantly over at the court
reporter. When she nodded, indicating that she was ready to take
down every single word that would be said during that day's proceeding,
McGill rose to his feet.

"I would ask the court to instruct Mr. Jamal to stick with evidence
or what he intends to show or whatever during the opening statement."
Although Mumia did not have legal training, McGill had no
intention of cutting him any slack. In fact, he wasn't taking Mumia's
lack of legal acumen for granted. He wanted Judge Sabo to keep a
tight rein on him, because he knew Mumia had a gift for words and
a proven ability to enrapture an audience. But most critically, Mumia's
decision to represent himself also gave him one major advantage that
concerned McGill: he could communicate his version of events without
taking the witness stand, and thus avoid the unpleasantness of
cross-examination. McGill didn't want to accord Mumia that kind of
latitude in the trial; he wanted him on that witness stand.

McGill was convinced that cross-examining Mumia would lead to
his unraveling. It is preferable to cross-examine educated witnesses,
especially those who have inflated self-images, over questioning simple,
vulnerable persons who are unaccustomed to manipulating words. If
cross-examination is a duel between the witness and the trial lawyer,
which it surely is, then it must be a duel fairly fought. A demolishing
cross-examination of an unassuming and unpretentious witness rarely
scores big points with a jury. In all likelihood, the jury will identifY
more readily with the besieged witness than with the slick and crafty
lawyer. The jury sees the examination for what it is: an unfair fight;
and the jury sees the trial lawyer for what he or she is: a bully. McGill
was convinced that the jury would give him permission to attack his
prey, and he felt assured that he would attack skillfully. He looked
upon Mumia as an arrogant revolutionary incapable of keeping a lid
on his radical political views, which this particular jury, picked from
within a community saturated with anti-MOVE media coverage over
the past several years, would find repulsive. It would be a fair duel,
because Mumia would be a worthy opponent; and most importantly,
the jury would enjoy witnessing it.

But there would be a whole trial to undergo, a virtual journey to
experience, before Mumia would be given the opportunity to take the
witness stand. The first order of business was the delivery of the opening
statements. The opening statement would be Mumia's singular
moment to bring the jury to his side. It was his opportunity, uninterrupted
and uncross-examined, to tell the jury, from his point of
view, what happened just before 4:00 A.M. on December 9, 1981, as
he ran across Locust Street toward Officer Faulkner and his brother.

An opening statement is no luxury, and it is certainly more than just
a synopsis of the case. It is, perhaps, the most vital moment in trial advocacy-
a moment that must be entwined with the jury selection process.
This process, when done correctly, primes jurors for the theories
and themes that will be communicated in the opening statement. Research
powerfully suggests that jurors begin to develop their outlook on
a case upon hearing the opening statements. What they hear at the beginning
of the trial, if compelling, becomes the mental scaffolding upon
which the case is constructed. It guides the jury to construe the testimony
in a way that is favorable to the advocate's side.

Although the essence of advocacy is communication, the trial process
provides an inhospitable way to communicate. Witnesses get on
the stand and the story dribbles our in little bits and pieces. A witness
is not given carte blanche to launch into an uninterrupted narrative
about events he or she may think is important. Little nuggets of
information are extracted from the witness, question by question,
punctuated by irrelevant detours and interrupted by objections, sidebars,
and breaks in the proceedings. On top of that, a jury is entirely
passive, barred by rules of procedure from asking questions of its own.
This passivity inevitably leads to periods where jurors "zone out" for
varying periods of time, thus resulting in testimony (sometimes crucial
testimony) being missed. A good opening statement gives the jury a
picture of the case as a whole-like a painting that is about to be cut
up into little pieces, only to be reassembled slowly over time. The
reassembling process is the trial itself, and the mental picture of the
painting facilitates the placement of each piece into the proper place.
Even if some pieces are missing, either because a juror has zoned our
or because the evidence wasn't presented, the juror will fill in the
resulting gaps with the full-blown image image provided by the trial
lawyer in the opening statement. No competent trial lawyer forgoes
the opportunity to give an opening statement; and very, very few
skilled trial lawyers, if any at all, delay giving the opening statement.
A skilled trial lawyer takes her case to the jury as soon as possible, and
as often as possible.

***

McGill pushed his chair back and moved quickly toward the jury
as if adrenalin was causing his blood to stampede through his veins.
He was obviously anxious to tell his audience his story of good versus
evil.

Mumia immediately took to his feet. "Judge, I have a statement."

Judge Sabo ordered Mumia and the lawyers up to the bench for
a sidebar conference. Sidebar conferences, as anyone who has served
on a jury knows, are meetings off to the side of the judge's elevated
bench where matters can be discussed beyond earshot of the jury. As
frustrating as a sidebar conference is for the excluded jurors, it pales
in comparison to the agony for a lawyer in being excluded from the
private sanctum of a jury deliberation room.

Judge Sabo wasn't going to take any chances with Mumia. Anything
Mumia wanted to say would have to be said at sidebar, and not
in front of the jury.

"I need a microphone at the table," Mumia whispered.

"I don't have one," Judge Sabo answered, a confused look on his
face. The only microphone in the courtroom was the one for the
witness. It wasn't customary for lawyers to have microphones, at least
not in Courtroom 253.

Mumia glared at the judge. "You get one," he demanded as the
judge shook his head briskly.

To Judge Sabo, this was akin to a child brashly talking back to a parent.
He angrily called out to the clerk and ordered the jury removed
from the courtroom while he restored the fragile balance of justice
within his judicial domain. Figuring that he could accomplish this in a
matter of minutes, he told the clerk to keep the jurors assembled so that
the proceedings could begin in haste. Bur, as he was to do on several occasions
in the trial, Judge Sabo underestimated Mumia's resolve.

The rwo sparred for what seemed like hours over the trivial issue of
a microphone. Judge Sabo, notorious for his quick temper and his penchant
for using contempt citations as a club to keep lawyers in line,
threatened Mumia with contempt. "Judge, that warning doesn't mean
anything to me," Mumia asserted. "If you want to find me in contempt,
go ahead-I'm on this trial for my life. You know those warnings mean
nothing to me." Judge Sabo couldn't deny that Mumia had a point.

Somehow the arguments over the microphone transformed themselves
into arguments over whether Mumia could have the assistance
of MOVE founder John Africa at the trial. John Africa was charismatic,
perceptive, and verbally skillful. He communicated through
aphorisms, analogies, and stories-keys to communicating effectively.
He had used that skill to secure an acquittal for himself from serious
weapons charges in a federal trial the previous summer, singlehandedly
defeating rwo highly trained federal prosecutors in a case
that seemed to be a lock for the prosecution. Attending that trial as
a journalist, Mumia was impressed with John Africa as he watched
him in action representing himself. "I'm an innocent man," John Africa
told the jury in his closing argument. "I didn't come here to make
trouble or to bring trouble, bur to bring the truth. And goddamn it,
that's what I'm going to do! I'm fighting for air that you've got to
breathe. I'm fighting for water that you've got to drink, and if it gets
any worse, you're not going to be drinking that water. I'm fighting
for food that you've got to eat. And, you know, you've got to eat it,
and if it gets any worse, you're not going to be eating that food."
When the jury announced its not-guilty verdict, John Africa had one
thing to say: "The power of truth is final."

Mumia wanted some of that "power of truth." He had actually
been clamoring for John Africa's assistance for weeks, bur Judge Sabo
never took the request seriously. John Africa is not a lawyer, Sabo
reasoned, so he can't appear in court in any representational capacity.
But Mumia wasn't demanding that John Africa represent him as a
lawyer. He wanted John Africa to assist him. Sabo reconstructed the
request in order to delegitimize it; and if he'd had a defendant who
was less intellectually agile, he probably would have been able to get
away with it. Mumia, however, was incensed over the tactic. In another
courtroom several flights above Courtroom 253, a police officer
was permitted to sit at the defense table with his son who had been
charged with a homicide offense. Why, Mumia wanted to know, was
he not accorded the same right?

Judge Sabo was an old-school judge: if he said no, then that's itno
more arguments. Mumia would have to accept the services of
Anthony Jackson, a man trained in legal procedure.

"I don't want that man Uackson] as my defense attorney," Mumia
responded.

"I don't care what you want," Judge Sabo angrily retorted.

"Damn what you want. This is my trial. It's my life on the line."
Mumia shot his fist into the air in a "black power" salute.

McGill figured he knew what was going on: Mumia wanted to
make the trial political theater, and by doing so, engineer a mistrial.
Mumia surely knew about Bobby Seale's conduct in the famous Chicago
Eight trial in Chicago, which dominated the news in 1969. Probably
the most famous political trial in United States history, the trial of
the Chicago Eight, which amused many and disconcerted many more,
involved conspiracy-to-riot allegations arising from the unrest at the
1968 Democratic Convention in Chicago. The charges were brought
against the key leaders of various left-wing contingents struggling for social
change: Abbie Hoffman and Jerry Rubin represented the Yippies
(that is, the counterculture); David Dellinger represented the pacifist
strain of the antiwar movement; Rennie Davis and Tom Hayden were
leaders in the left-wing student movement (the "New Left"); Lee Weiner
and John Froines were exemplars ofleft-wing academics; and Bobby
G. Seale was the designated black man, the cofounder of the Black Panther
Party. Seale wanted legendary attorney Charles Garry to represent
him, but Garry fell ill shortly before trial. Judge Julius Hoffman refused
Seale's request that his case be postponed while Garry recuperated. Seale
then demanded to represent himself. This too Judge Hoffman refused.
With each demand from Judge Hoffman that he accept the representa-
tion of William Kunstler, Bobby Seale responded with the same defiance,
adamancy, and fearlessness as Mumia thirteen years later: "He is
not representing me. I am entitled to represent myself." Seale, like Mumia,
simply refused to acquiesce, which ultimately led to Judge Hoffman's
infamous order to the courtroom marshals: "Take the defendant
into the room in there and deal with him as he should be dealt with in
this circumstance." A short while later, Seale was carried back into the
courtroom, gagged, handcuffed, and bound to a metal chair. When Seale
was able to rattle the handcuffs against the metal, the judge ordered
the marshals, in his customary Victorian locution, to "make that contrivance
more secure." Ultimately, the spectacle of a black man bound and
gagged in a United States courtroom was too much even for Judge
Hoffman, and a mistrial was declared for Bobby Seale. The Chicago
Eight then became the Chicago Seven.

McGill suspected that Mumia would like nothing more than to
ravage Judge Sabo's nerves and thus provoke him to similar madness.
"My thought is that perhaps Mr. Jamal is, if not the most, then one
of the most intelligent defendants by far that I have ever run across,"
McGill said to Judge Sabo, "and I'm quite sure that everything he's
doing is strategic." McGill continued, "I think perhaps Mr. Jamal is
attempting to not only divert their minds from guilt or innocence and
to some sort of condition that he believes he is in unjustifiably, but
that he may well wish to have himself ejected so that learned counsel
would be in a position to try a case, and since he has a great deal of
experience in it, and gain some sort of sympathy from the jury." To
McGill, this display of protest and disruption was a fusion of Black
Panther and MOVE tactics-derail the trial proceedings, inject chaos
into the courtroom, and then seize the moment to convert the entire
process into political theater. McGill would later use this display,
which repeated itself endlessly through the whole trial, to powerful
effect in arguing for the death penalty.

For the time being, McGill wanted to secure as much advantage
as he could from Mumia's protestations. "You stay here and represent
yourself and don't try to chicken out," McGill needled.

Mumia was too fired up to leave McGill's goading alone. "I'm
not chickening out. That's unimportant for me. What I want is a
representative of my choice, not of your choice, not of his [Jackson's]
choice, but of my choice. It's my life on the line."

Jackson sat bemused, his emotions bordering on lassitude. The
thought came to him, inexplicably, that maybe he could now make
another pitch to be cut loose, even though Judge Sabo emphatically
refused his earlier earnest requests to be relieved of the nightmare.
"May I say something?" he interjected. "I most respectfully request to
be removed from this case. I feel uncomfortable in this position being
backup counsel."

McGill and the judge could be excused from suspecting that, perhaps,
Jackson was conspiring with Mumia to prolong the arguing.
Jackson's futile request did nothing to advance the possibility of his
excusal, but it provided Mumia with a segue into another line of
protestation. "I do not want him sitting there in defense of my life,"
Mumia declared.

Judge Sabo, at that point, realized Mumia was not going to let
the proceedings continue. He warned him that this time, he would
not be held in contempt or sanctioned in some other way but that he
would be stripped of his right to represent himself.

Mumia's response was the same: "Judge, your warnings to me are
absolutely meaningless. I'm here fighting for my life. Do you understand
that? I'm not fighting to please the Court, or to please the DA.
I'm fighting for my life."

There was nothing Judge Sabo could realistically say to that in
response. A man facing execution has no genuine interest in being
cooperative or congenial, Judge Sabo reasoned. Because there was no
apparent way for the trial to proceed smoothly without allowing John
Africa to displace Jackson as backup counsel, by day's end Judge Sabo
had rescinded Mumia's status as his own attorney and put Jackson
back into the lead role. It was a decision that ensured continued protests
from Mumia, but at least it provided a way for the trial to
continue-Judge Sabo's sole concern.

The jury, meanwhile, had already been shuttled back to the hotel,
a wasted day in the halls of justice.

***

Jackson didn't expect he would be handling the trial as the lead lawyer.
More than six weeks earlier, on April 29, he had requested appointment
of a second attorney because he felt he couldn't handle the
case himself. He had told Judge Ribner at that time that he was
overwhelmed by the sheer volume of work left to be done on the case.
Yet, two weeks after confessing his unpreparedness and desperate situation,
he learned that he wouldn't have to do any trial preparation after
all, because Mumia would be handling his own defense. Now, on the
day of opening statements, he was thrust back into the lead counsel
role, and thus into a more desperate situation than he had been in on
April 29. He was too shell-shocked even to ask for a continuance.

Actually, Jackson had one last hope to avoid the unwanted duty
of representing Mumia. Judge Sabo gave Jackson permission to take
an emergency petition to the Pennsylvania Supreme Court to challenge
his decision to strip Mumia of his pro se status. Late in the day
on June 17, Jackson, Mumia, and McGill appeared before Justice
James T. McDermott, two flights above Judge Sabo's courtroom. Justice
McDermott, a onetime trial judge who enjoyed his reputation as
a hanging judge and who himself had issued thirteen death sentences
before gaining a seat on the Pennsylvania Supreme Court, was not
expected to be sympathetic to Mumia's desire to have John Africa at
his side, as he had denied requests of MOVE members to represent
themselves in the MOVE Nine trial. He didn't take long, nor did he
agonize over the matter, before issuing his decision: Jackson had to
stay on, and John Africa had to stay out.

After McDermott issued his decision, he rose to leave the bench.
"Where are you going, motherfucker?" Mumia wailed. The crudity of the
epithet, uncharacteristic of the young journalist, shocked even McGill.

***

The day after the wild proceedings on June 17 would be no less
significant for the trajectory of the trial. The one vestige of Mumia's
activity as his own counsel was soon to be taken from him. Mumia
arrived in court on June 18 from his holding cell unaware that the
only juror he had selected, Jennie Dawley, the elderly black woman
he had personally selected as his first choice on the jury, would no
longer be sitting on his case.

Dawley had told a court officer, after the jury was excused early
on June 17 that she had to make a quick trip home. She explained
that her cat was sick and had to be taken to the veterinarian by 7:00
P.M. The court officer ordered her to stay. Dawley left anyway. It
turned out that Mumia's instincts about Dawley were right; she had
an independent streak about her, a feistiness that would serve him well
in the case. The court officers on the night crew assigned to watch
over the jury at the hotel noticed her missing when the jurors assembled
for dinner. Her clothes were still in her room, which indicated
that she intended to return, but she had broken Sabo's strict rules of
sequestration. At about 9:00 P.M., Dawley returned to the hotel, only
to meet up with angry court officers.

Judge Sabo, who had received a report of the events the night
before, told McGill and Jackson about Dawley's violation of the sequestration
order during a private conference in his chambers on the
morning ofJune 18. Mumia was not present for the conference. Much
of the discussion actually centered on how the three of them were
going to deal with Mumia's strong-willed insistence on representing
himself with John Africa's assistance. But, during the course of the
conference, Judge Sabo made it clear that it was his intention to remove
the insolent juror. Jackson expressed some reluctance to go along
with the move, indicating that he wanted to get Mumia's input. It
was a dubious practice to discuss such a sensitive matter without Mumia's
presence in the first place. It was arguably illegal to arrive at a
resolution of the issue without according Mumia the opportunity to
express his own views on the matter, especially given that Dawley had
been selected while he was acting as his own attorney.

McGill knew that Mumia would never allow the removal of Dawley
without protracted argument and protestation. He began pressuring
Jackson with claims that Dawley should never have been selected,
as she obviously disliked Mumia. Judge Sabo, a wily jurist, echoed
that observation, telling Jackson that "she'll hang him." The tag-team
coercion worked: Jackson finally acquiesced to the decision to remove
Dawley, without consulting Mumia. Getting Jackson to withhold any
objection was important to Sabo and McGill because it is difficult to
raise an issue on appeal where the defense attorney does not interpose
an explicit objection to a particular action by the court or the prosecutor.
Comfortable now that Jackson had eliminated any realistic
chance of Mumia's challenging his actions on appeal, Judge Sabo told
the court clerk to send Dawley home.

Edward Courchain, the elderly white man who said he couldn't
be impartial due to the media coverage in the case, now became juror
number one. The jury now consisted of ten whites and only two
blacks. It couldn't have been scripted better for the prosecution.

***

The twelve jurors and three alternates took their seats in the jury
box on June 18 expecting to hear the opening statements that should
have been delivered the day before. When they heard the first words
of the day, they were rightly dubious that they would be needed anytime
soon.

"Who is representing me?" Mumia awaited an answer. Jackson sat
frozen. "Why is he representing me?"

"He's representing you by order of the Supreme Court," Sabo
finally replied.

Mumia again insisted that Jackson was not his lawyer. Getting
nowhere, Judge Sabo ordered the jury removed once again. "Mr. Jamal,
it is obvious to this Court that you have been intentionally-"

"Why is he representing me?" Mumia interrupted, speaking more
loudly now.

"You have been intentionally disrupting the orderly proceedings
in this courtroom," Judge Sabo remarked in a businesslike tone. It
was clear where the judge was going. He was laying the groundwork
to have Mumia removed from the courtroom so the trial could finally
proceed. But before he could do that, without risking reversible error
on appeal, he needed to be patient. Judge Sabo was an intemperate
judge, quick to anger against lawyers, but he was no fool. He knew
what it took to protect his record.

Protecting the record is a skill that trial judges gradually learn,
some quicker than others. What exists on the record is the universe
of facts that come into play after a case is over at the trial court level.
An appeals court will not go outside that record. So if something is
said, or if something happens, and it is not memorialized through
words spoken while the court stenographer is there, then, for all practical
purposes, those remarks just weren't said or those events just
didn't happen. Regardless of whether Judge Sabo had any concerns
over Mumia's rights as an accused person, he had to utter the proper
set of words on the record to construct a particular universe of facts
from which an appeals court would later review the fairness of the
proceedings.

Playing the game of protecting the record, Judge Sabo issued
endless warnings to Mumia about the possibility that he could forfeit
his right to be present at his own trial. Judge Sabo wasn't going to
take the tack of Judge Julius Hoffman, strapping Mumia to a chair
and gagging him. That particular judicial tactic, widely reported in
the news when it occurred to Bobby Seale, appalled the country.
Judge Sabo would simply dispatch Mumia to his jail cell after justifying
the move sufficiently on the record. Mumia was nowhere near
as savvy about constructing a favorable record. He repeatedly castigated
the judge for stripping him of his right to proceed on his own
behalf and for summarily dismissing his request to have John Africa's
assistance. Through it all, Judge Sabo methodically advised Mumia
of the rights he would forgo if he continued to disrupt the proceedings,
including his right to view the witnesses testifying against him
and his right to confer with his attorney during the course of the
trial proceedings.

Mumia was unmoved, convinced that every action by the judge
was freighted with ill-will. "It's very curious that the court seems protective
of certain rights and clearly doesn't give a damn about others.
The right of self-representation is an absolute right. But that right has
been stolen by you several times during the voir dire, and it's been
stolen before this actual trial began."

By 3:00 P.M., Judge Sabo reached the end of his patience. Arguing
wasn't getting anywhere. He thought that maybe, just maybe, he
could squeeze in the opening statements before adjourning for the
day. The jury was brought back in, even while Mumia was still
arguing for his right to represent himself. The jurors took their seats,
and Mumia kept talking. It had to have been puzzling to those fifteen
people, being shuffled in and out of the courtroom, with a criminal
defendant seeming to hold the whole process hostage with his
filibustering.

But McGill knew that his words, at the end of the trial, would
put it all together for the jury. These events inside the courtrooman
oddity, at the least, for the jury-would all make sense in the end:
McGill would see to that. McGill would use these events as further
evidence that Mumia had killed Officer Faulkner, not out of a momentary
flurry of anger but as an outgrowth of who Mumia had
become.

Recognizing that Mumia would not stop talking, Judge Sabo motioned
to have the jury escorted out of the courtroom again. He had
that look that trial judges acquire when they're about to alter the
course of events in a trial. His face broadened, became less rigid and
less wrinkled. It was, one might even say, a look of serenity. He lost
the appearance of someone whose composure was about to become
unhelmed. Even before the last juror walked out the door to the jury
room, Judge Sabo made his proclamation. "Mr. Jamal, you have interrupted
these proceedings for the last time. The Court is ordering
the sheriff to remove the defendant from the courtroom. We'll proceed
in your absence."

Two spectators energetically leaped from their seats as Mumia was
escorted out of the courtroom. "This is a fucking railroad!" one of
them yelled above the chattering of the rest of the people sitting in
the audience.

"What is this?" the other said defiantly.

The outcries seemed to stoke the anger of the Mumia supporters,
as the chattering grew louder. MOVE members flourished defiant
gestures at the court personnel. The clerk sensed that things were
abour to get out of control. About a dozen deputy sheriffs quickly
descended on the two men who had yelled at the judge and forcibly
dragged them out of the courtroom. Most of the spectators sat stunned
at the pell-mell violence. A court of law is the last place one expects
to see physical aggression; it is a place of harsh and sorrowful words,
not physicality. Newspaper accounts referred to the incident as an
"angry brawl" that nearly got out of control. "With arms swinging
and people shouting," the Philadelphia Inquirer reported, "the fighting
threatened to spread to the numerous police officers and supporters
of Abu-Jamal in the courtroom."

"Does anybody know who those men were?" Judge Sabo asked,
referring to the two contemptuous spectators.

"Yes," said McGill. McGill told Judge Sabo they were Billy and
Wayne Cook, Mumia's two brothers.

Judge Sabo threw up his hands in scalding fury and ordered the
clerk to tell the sheriff that the jury would have to be sent back to
the hotel for the second day in a row. He then directed court officers
to bring Mumia's brothers back into the courtroom. They were still
struggling and shouting as they were forcibly brought in front of the
judge. These men weren't facing execution, so a contempt citation
and a jail term would have some meaning, which is why Judge Sabo
held them in contempt and ordered them imprisoned for sixty days.

***

McGill gave reporters his own spin on the day's events: "Mr.
Jamal's eviction from the courtroom may very well be his best shot.
It's difficult to make decisions on someone you don't see."

***

On June 19 Mumia was back at the defense table when Judge Sabo
ascended to the bench. He glanced at Mumia with a grave expression,
wary of him. It was now the third day of the trial since the jury was
empaneled, and opening statements had not yet been delivered. Sabo
was tense, undoubtedly still unnerved by the "melee" the day before,
as McGill characterized it. He was not about to bring the jury back
in until he received an assurance from Mumia that there would be no
more outbursts. "I want to first ascertain from Mr. Jamal whether or
not he will behave himself in this courtroom so that he can stay for
the proceedings." Judge Sabo then looked directly at Mumia, still
seated at the table. "Mr. Jamal, are you going to behave yourself and
not disrupt the orderly proceedings of this courtroom?"

Mumia didn't seem to take offense at the patronizing tone. In
fact, he affected one himself: "I sure will, Judge."

Jackson diffidently requested that the jury be dismissed and a new
one selected, arguing that the jurors had been privy, to some degree,
to the acrimonious exchanges of the past two days. McGill, not unexpectedly,
argued vigorously that, because any prejudice arising from
those events was generated by Mumia's own deliberate actions, he'd
have to live with it (actually, risk dying because of it). McGill applauded
Judge Sabo's "extreme patience" in dealing with "yesterday's
melee" and urged the denial of the defense motion. It was typical
overkill on McGill's part, as Judge Sabo's decision was never in question.
"The motion to dismiss the jury," Judge Sabo announced, "is
denied."

Within minutes, the jurors were again seated in the jury box and
McGill, finally, was giving his "bird's-eye view of what the evidence
will be." The jurors stiffened in their seats as McGill, once again,
strode up to the railing and peered at them. He never pandered to
juries, preferring instead to be looked upon as an authoriry figure, a
man to be respected, not necessarily liked. He recounted the "facts"
concerning the events of December 9 as Cynthia White was expected
to tell it. Although he planned on calling four eyewitnesses, it was
White's account that would provide the seamless narrative upon which
the prosecution's theory was to be built. He described how Officer
Faulkner pulled over Billy Cook's Volkswagen, which led to a physical
scuffie between the two. Mumia darted across the street toward Faulkner
and his brother. The spark that set in motion a killer's rampage
was clear: Mumia, harboring intense antipathy for cops, was intensely
enraged by the fact that a cop was clubbing his own brother over the
head with a flashlight.

McGill explained to the jury that Mumia was also shot at the
scene. According to McGill's theory, again rooted in Cynthia White's
anticipated testimony, Officer Faulkner spun toward Mumia after receiving
a bullet wound to the back. "And you will hear the testimony
that as he fell down, Officer Faulkner was grabbing fOr something .... "
Grabbing for a gun, McGill implied, which young Danny Faulkner
bravely used to fire off a round, striking the murderer in the chest as
he, the officer, fell to the pavement.

Reaching the climax to this tragic narrative, McGill slowed his
speech, the better to impress the jury at how despicable the crime was.
Like a good storyteller, McGill began speaking in the present tense,
to transport the jury to that time and place, helping them to reenact
the events in their minds as a present occurrence. "Officer Faulkner
now is on the ground," McGill said in a husky whisper; "and then
you will hear the testimony of various witnesses that this defendant
walks right over to Officer Faulkner"-his voice rising-"who at this
point is on his back, and within twelve inches of his head, he points
the gun that he had that was loaded, and unloads the gun. One makes
contact, and that was the fatal shot, right between the eyes, literally
blowing his brains out." McGill didn't just use words. He showed the
jury the cruelty of the act. He stretched out his right arm and bent
over, simulating the recoil of the revolver as three rounds were discharged.

McGill was experienced enough to understand the power of a
good opening statement. He sensed that he had this jury on his
side, even at that moment, before a single witness was called. But it
is one thing to persuade a jury early on in a case that the defendant
is guilty. It is quite another to get the jury to hate the defendant, to
wish him dead.

Mumia was taken to a hospital, McGill explained. A sad irony,
he noted as an aside, because this hospital was the same one to which
Danny Faulkner was taken. In one emergency room lay an innocent
victim, designated to protect us from violence and lawlessness; in another,
the very embodiment of lawlessness. He promised the jury that
it would hear evidence that "symbolizes the entire episode."

"This man, this defendant, you will hear and you will see throughout
this trial as the evidence goes on, is a picture of extreme arrogance,
defiance, even a strange boastfulness as to what he did in his deliberate
killing of this police officer." McGill's cunning was slowly coming to
light. A "picture of extreme arrogance" that "you will see throughout
this trial"; McGill was sure that Mumia would play right into his
hands and continue to disrupt the proceedings with his rancorous
barbs at the judge. McGill wanted the jury to watch for this, and
think about it, and then reflect on what Mumia supposedly said at
the hospital. Wasn't Mumia's utter contempt for the judge and for
the sacredness of the trial proceedings nothing more than an extension
of the vileness that led to his crude confession?

Mumia was lying on the emergency room floor, McGill stated,
when Officer Faulkner's partner knelt down to look into the killer's
eyes. "This defendant, you will hear, looks up at him when the officer
is just dying, and said, 'I shot the MF'er and I hope he dies.' Arrogance,
defiance, you will see it."

McGill ended his opening abruptly. He didn't need to rally his
audience, not yet at least. He asked for their patience, signaling that
the trial was both a formality and an emblem of our society's intrinsic
goodness, a necessary road to travel on the way to executing justice.

***

If ever a defense attorney needed to say something, now was the
time. An advocate cannot, must not, let the jury absorb the prosecutor's
story like a dry sponge. The jury wants to know, needs to know,
what the defendant's answer is to the prosecutor's blistering allegations.
Those twelve human beings, at the very least, need to know
that there is an answer, no matter how feeble it might eventually be
taken to be. But not to render an answer, immediately and forcefully,
is tantamount to admitting defeat.

Jackson went to his feet, his arms outstretched toward the table
with his fingers holding up his forward-leaning torso. He didn't make
a move toward the jury; he wouldn't move toward the jury, even
though those men and women sat there with expectant stares, waiting
to be told why the ptosecution had it all wrong. He had no opening
statement prepared, unsurprisingly, as he hadn't expected that one
would be needed from him. "Your Honor, I reserve making opening
remarks till a later time." Several jurors slumped deeper in their seats
as Judge Sabo, with a tinge of glee, said simply, "Very well, then."

McGill could not have been more delighted.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:20 am

PART 1 OF 2

They [the police] were getting on me telling me I was in
the area and I seen Mumia, you know, do it, you know, do
it, you know, intentionally. They were trying to get me to
say something that the other girl [Cynthia] said .... They
told us we can work the area if we tell them.

-- WITNESS VERONICA JONES, 1982


10. PRIMING FOR DEATH

A court of law enshrines cold logical reasoning; securing a
death verdict demands a conflagration of emotions. Vital to an
effective death penalty prosecution, therefore, is a villainous defendant
juxtaposed to a blameless, morally upright, and, preferably, physically
attractive victim.

To the elderly men and women on the jury, Danny Faulkner, a
handsome young white man they would have been proud to call a
son, sacrificed his life on the front lines in the war against lawlessness.
He was the quintessential capital punishment victim. Yet, within
Courtroom 253, as the trial got under way, the victim was an abstraction;
only photographs and words permitted a glimpse into who he
was. If only there was some way to get the jury to feel the weight of
the loss, so that that weight could be felt against the counterweight
of the defendant's viciousness. This was McGill's dilemma. Maureen
Faulkner was his solution.

Maureen walked deliberately to the witness chair, her eyes angled
toward the floor, as if she had somewhere to go with no time even to
exchange a greeting. She went up the two steps and contorted her
body slightly to position herself in front of the witness chair without
hitting the microphone. She made a motion to sit down but then saw
the Bible and realized that she had to take the oath. She raised her
right hand to announce her willingness to tell the truth before God.
She was subdued, sitting in the witness chair, expressionless, waiting
for McGill to ask his nrst question-a virtual model of the grieving
young widow. Just a year from her wedding when she had said that
she would stay with Danny until death, Maureen Faulkner was now
the prosecution's first witness in Mumia's trial. McGill allowed the
jurors to absorb the moment.

They looked at her with soft expressions, momentarily (but only
momentarily) helpless to ease her sorrow. They had before them not
so much a witness with information, for she added little to the evidentiary
mix, but something far more powerful, something that operated
on their humanity at the deepest level. Maureen was also a
victim-of loss, of heartache, of cruel and irrational violence. More
than that, she was an attractive victim, easy to look at, and hence,
easy to feel for. Even more than that, she was a delicate victim, young
and deserving of the love of a husband and the promise of children.
She was, most importantly of all, an undeserving victim, undeserving
of the loss she suffered. Therefore, she deserved justice.

McGill picked his jury to give Maureen, and the city of Philadelphia,
a measure of justice. The jury would be a party to an implied
compact, wherein he would present proof of Mumia's guilt and they
would deliver the gift of justice. But gifts are given from the heart,
prompted by feelings for the recipient. McGill presented Maureen to
the jurors so that they could fiel for Maureen, feel Danny Faulkner's
presence in the courtroom, and, paradoxically as it may seem, at the
same time feel his absence from the human family. Maureen was there
not only to display her loss but also to convey our loss. A death penalty
trial, McGill understood, is as much (if not more) about feelings as
it is about logic.

She told the jury of Danny's last day at home; how he stepped
out into the cold in his uniform at 11:30 P.M. to begin his night shift,
the most frightening for any cop's wife. She identified her husband's
hat, which he dutifully placed on his head before he began his walk
over to the driver's-side door of the Volkswagen-an insignificant
evidentiary detail but a powerful theatrical display: a hat with no one
to wear it-the ultimate symbol of absence. Further, that hat was the
physical incarnation of Officer Faulkner's pride as a police officer, and
its pristine condition at the trial symbolized the abrupt rupture of the
thin blue line.

Maureen's testimony was strategically brief. She didn't need to tell
the jury that she had a ritual with her husband-he was not allowed
to leave for work, ever, without giving her a kiss.

The truth is, Maureen Faulkner would continue to "testify"
throughout the rest of the trial without ever retaking the witness stand.
She remained in the courtroom after the questioning was over, a conspicuous
presence in the spectator section for the balance of the trial,
surrounded by family and friends, and a consistent crew of police
officers. The only time she wasn't there for the jury to see was when
her husband's bloody shirt was taken out of the evidence bag and
unfurled in open court. She broke into sobs at the sight of the shirt
and hastily headed for the exit. Several jurors turned their eyes downward
as the proceedings seemingly froze for an instant, a brief, grim
armistice within the capacious courtroom.

Quiet and grieving, Maureen radiated a power of her own, energized
subtly by the electricity of the proceedings. Maureen's power
was in direct proportion to Mumia's rebellion, because the two were
indissolubly linked in the courtroom drama. Her victimization and
her sorrow seemed more acute in the heat of Mumia's embittered
courtroom denunciations.

Maureen Faulkner was a vital ingredient in the life-death calculus
that is played out in all capital cases: the defendant must be worthy
of being killed by virtue of his acts; but the victim, too, must be
worthy of the jury's act of vengeance. The death penalty is designed,
its proponents argue, for the absolutely worst criminals, for people
who have committed crimes so ghastly that society can no longer
countenance their presence among the living. But that is so in the
realm of logic. In reality, the death penalty, no matter how justified,
speaks to the need for vengeance and cultural expiation. Consequently,
an absolutely essential component to most successful death penalty
prosecutions is the message that someone who is worthless killed
someone who mattered, someone who lived by societal rules and had
the promise to succeed by society's particular standards of success,
leaving alone others who are undeserving of the loss.

McGill's opening statement and Maureen's testimony and presence
sustained the emotional tone of the trial as a series of crime scene
investigators testified to what was observed and found at the location
where Officer Faulkner was shot. Photographs, diagrams, clothing
stiffened by caked blood, and two .38 caliber pistols (one police issued,
the other belonging to the accused) were introduced into evidence.
These prosaic aspects of the evidentiary presentation had their own
subtle power. It gave the prosecution a desirable ethos, an image that
it was the district attorney's office that was devoted to truth and to
seeking out justice. Jackson, in his rambling cross-examinations, only
reinforced this prosecutorial ethos, painting himself as one seeking
only to kick up dust.

But McGill counted on the circumstances of the arrest to propel
the jury into accepting uncritically what the four eyewitnesses had to
say. He sensed that the jury would have no trouble finding Mumia
guilty in large measure because he was apprehended in under two
minutes of the shooting just a few feet from Officer Faulkner's prone
body. P.O. Robert Shoemaker was called to testifY to develop this
point. Shoemaker had heard Faulkner put out over the radio that he
needed a "wagon," which, he explained to the jury, meant that he
planned on making an arrest. What had caught Faulkner's attention
to prompt the desire to take the driver of the Volkswagen into custody
will never be known. Shoemaker and his partner were the first to arrive
at the scene, and when they did, they found Mumia sitting on the
curb with his bent legs protruding into the street and his right arm
crossing his chest.

Shoemaker, with his gun already drawn, ordered Mumia to freeze.
"We made eye contact probably about the same time," Shoemaker
testified, "and the male did not freeze, his arm started to move to the
left." At that moment, in the darkness, Shoemaker couldn't tell what
Mumia was reaching for. He moved slowly to his left, with his eyes
fixed on Mumia's outstretched left arm. Mumia was either gesturing
toward, or reaching for, something. Shoemaker then noticed that a
revolver lay on the pavement about eight inches from Mumia's outstretched
hand.

Unsute of Mumia's intentions, but recognizing that something
awful had just happened, Shoemaker kicked him in the face: "My heel
contacted his throat area and the sole of my shoe hit him on the face."

Shoemaker was a Stakeout Unit cop, which meant that he had to
have absorbed that unit's flaming anger over the shooting death of
Officer Ramp, supposedly by a MOVE member, in 1978. Did he
recognize Mumia as a MOVE sympathizer? Was the kick in the face
a small form of retribution? One witness, Robert Chobert, would say
a little later in the trial that Mumia, with his dreadlocks, had MOVEtype
of hair. To the white population in Philadelphia, in 1981, dreadlocks
on a black man was a virtual neon sign saying, "I am connected
with MOVE." Shoemaker, and his partner, immediately felt that they
had another MOVE killing on their hands.

"I'm shot, I'm shot," Mumia murmured after being kicked in
the face.

Shoemaker called his partner over to keep an eye on their suspect-
indeed, their enemy in the outrageous war against MOVE-as
he walked the fout feet to where Officer Faulkner lay dead, another
casualty of that war, he must have thought. He looked down and saw
the small hole between Faulkner's eyes, and it sickened him. Soon the
entire block was teeming with movement, brightened by a confluence
of flashing turret lights. Bundles of uniformed men, huddled together
in clusters, formed at various spots around where Faulkner had been
shot. When the police wagon arrived, Shoemaker and other officers
lifted Faulkner immediately into the back of the wagon, refusing to
admit to themselves the obvious, and he was then whisked away to
Jefferson University Hospital.

The last thing left for McGill to do, before putting his eyewit-
nesses on the stand, was explain how Mumia was taken from the scene.
This array of evidence was no incidental matter for the prosecution.
McGill expected the defense to raise the claim that police officers
brutalized Mumia at the crime scene. Police witnesses were called to
give the "official" version. Mumia, they said, resisted arrest, flailing
his arms and legs as officers tried to place him in a police wagon.
Whereas Mumia had claimed in a police brutality complaint that cops
rammed his head into a light pole like a human battering ram, police
witnesses insisted that Mumia's head "made contact" with the pole as
a result of his own physical aggression. That aggression also accounted
for the injuries to Mumia's face, as officers claimed that they "accidentally"
dropped him face first onto the pavement.

The official version was important for another reason. McGill
would later bring in evidence of Mumia's supposed bellicose and insolent
confession. That he had the strength and audacity to struggle
against arresting officers, after having shot one of their brothers in
blue, showed that he had the energy and proclivity to confess in the
manner that he did. It was yet another manifestation of Mumia' sutter
hatred of "the system."

Before the end of that particular day, June 19, McGill would have
cab driver Robert Chobert on and off the witness stand. Mumia had,
in Judge Sabo's words, "behaved himself" the whole day, and the case
was now proceeding quickly.

***

For the next few days the jury heard from the other eyewitnesses
(Cynthia White, Michael Scanlan, and Albert Magilton), from witnesses
who had information about Mumia's gun ownership, from a
witness who explained that the rifling characteristics of the bullet
found in the officer's brain were consistent with the rifling characteristics
of the gun found eight inches from Mumia's outstretched hand
at the crime scene, and from two witnesses who claimed to have heard
the hospital confession. This array of evidence, discussed in Chapter
Two, formed the core of the prosecution's case against Mumia, and
it is that core that gave it an open-and-shut quality. Four eyewitnesses,
a murder weapon, and a confession-that is what the jury had before
it when the prosecution announced that it was resting its case.

But it wasn't smooth sailing getting there. Although Mumia sat
as silent as a package throughout the first day of actual testimony, his
quiescence was short-lived. By the third day of testimony, June 22,
Mumia was again rebelling.

That morning, Jackson alerted the court clerk that he wanted to
raise an issue before the jury was brought in. He went over to the
railing to talk with a MOVE member who wanted to pass a message
on to Mumia. The conversation was interrupted when the clerk announced
that the judge would momentarily be coming into the courtroom.
The MOVE members abruptly left their seats, as they always
did when Judge Sabo was about to enter the courtroom, and stepped
out into the corridor. Judge Sabo insisted that audience members
stand when he took the bench. Anyone who refused to stand would
be held in contempt and fined. Rather than give him the satisfaction
of standing, the MOVE members, and others sympathetic to Mumia,
left the courtroom until it was "safe" to come back in.

Jackson went over to the defense table and sat next to his client,
who had been brought in a moment before the announcement. Judge
Sabo then took his seat on the bench. "What's your problem, Mr.
Jackson?" His tone registered that he was in no mood for posturing.
Jackson was about to answer the judge, but Mumia abruptly cut in.

"1 wanted to address you before the jury came in," Mumia declared,
emphasizing that it was his idea, not Jackson's, to delay the
proceedings. Judge Sabo had decided days earlier that he would not
engage in any more repartees with Mumia; they were too exhausting
and tended to bring the wheels of justice to a grinding halt. So he
told Mumia that he'd have to make requests through his lawyer. That
was the one thing Mumia did not want to hear.

"He's not representing me," Mumia again announced, pointing at
Jackson. Judge Sabo turned away, a rude gesture that many judges
resort to when they are displeased with an argument. "Judge, I want
to talk to you." Mumia had chosen this moment, for no apparent
reason, to reclaim control over his case-which is to say, his life.

Judge Sabo stood his ground, indicating that he too had come to
an understanding within himself. "Mr. Jamal, I told you I will not
talk to you. I want you to sit down." Mumia didn't budge. 'Tm telling
you, unless you sit down and behave yourself-"

Mumia interrupted him: "Judge, I am not being disruptive."

"You are. You are preventing me from proceeding with this trial."
Mumia continued to argue that he should be allowed to represent
himself, seemingly trying to wear down the judge by sheer persistence.
Never betraying a concern over being ejected, Mumia didn't so much
as dare the judge to do so as exhibit a nonchalance, an immunity to
Judge Sabo's exercise of judicial authority. He pressed on, at times
raising his voice to the verge of breaking into shouts. He never did,
however. Mumia could deliver with his mellifluous voice the most
heartrending account of a sad story without maudlin displays of emotion.
Listeners to his radio broadcasts and his newsroom colleagues
had marveled at the gift. People in the courtroom quickly saw that
this same gift allowed him to express firmness and outrage without
unseemly exuberance. This frustrated the old jurist.

"I am not going to hear any more about it," Judge Sabo pleaded.
"If you do not permit me to proceed with this trial right now, I'm
going to have you removed from this courtroom."

"You can do what you wish to do," Mumia whispered with a
heavy breath.

"That's exactly what I'm going to do."

Judge Sabo was again laying the groundwork to justify banishing
Mumia from the proceedings. He knew instinctively, however, that
this time the banishment would be weightier, because it would entail
Mumia's absence while critical testimony was being rendered. The
situation would call upon all of his experience in crafting a court
record that would be looked upon favorably by the appellate judges
who operated high above the hurly-burly of trial litigation. He was by
no means a judicial scholar, but he knew enough to protect his record
well at a moment like this.

McGill, however, was nervous. He had practiced criminal law long
enough to recognize that there are vety few, if any, rights that are
more sacrosanct in a jury trial than the defendant's right to be present
during the taking of testimony. The spirit of due process is infused
with the notion that the criminal process isn't supposed to happen to
the accused; it is supposed to happen with the accused. The accused
is deemed a participant in the process while simultaneously its target.
Due process in a criminal trial is, therefore, the melding of two goals:
maintaining respect for the dignity of the accused (no matter how
despicable the crime) and devising an effective method to extract vengeance.
Overemphasizing the latter at the expense of the former can
jeopardize a conviction.

True, the right to be present at one's own trial could be forfeited
by disruptive behavior. But McGill didn't want the case of Commonwealth
v. Mumia Abu-Jamal to be the test case on when behavior is
sufficiently disruptive to justifY banishing a capital defendant from his
own trial. As much as he relished trying this case in Sabo's courtroom,
he knew from experience and from his colleagues that he had to protect
his case against the judge's tendency to go overboard with his
anti-defendant gusto. He wasn't about to have this case reversed by
an appellate court and sent back for retrial. Retrying a case, it is said,
is akin to putting on a wet, sandy bathing suit.

McGill thus tried to broker a deal. He asked Judge Sabo to consider
letting Mumia say what he had to say in the hopes that it would
palliate his distemper. The judge had never had a defendant like this
before. He had always been able to compel obedience by counting on
the fact that he was the judge. It had, in a very real sense, become a
contest of wills. And it would remain so for the remainder of the trial.

McGill gently prodded, and Judge Sabo, looking up at the clock
and noticing that it was now well past 11:00 A.M., slowly began to
back down. But Mumia would have to give in a little as well. There
could be no break in the impasse unless the judge could save face.
Judge Sabo agreed to consider a renewed motion for reinstatement of
Mumia as pro se counsel, but it would have to be Jackson arguing it.
"I will not allow him to address the court," he shouted at Jackson. "If
you have a motion you want to make on his behalf, make it. You've
got a motion, make it!"

Jackson desperately wanted out of the case, and he still harbored
hopes that he would be liberated from the obligation, so he was arguing
the motion as much for his own sake as for Mumia's. He first
conveyed that Mumia's "aggressiveness" was rooted in his "sincere
desire to represent himself." But more than that, Mumia had a certain
outlook about what was happening around him, and to him, and
Jackson wanted to communicate that point as well. "I believe that,
under the circumstances, his aggressiveness with which he has spoken
to this court with regard to his activities in this court is as a result of
what he perceives to be a bias and prejudice within the system and,
specifically, in Your Honor."

Judge Sabo stared blankly as Jackson continued, his arms crossed
tightly across his chest, as if to immobilize himself. He tended to do
that when a defense lawyer made an argument that he had no intention
of taking seriously. It was unnerving to argue a point and see the
judge sitting motionless like a lifeless statue; it made a lawyer feel silly.
And a silly lawyer is not an effective lawyer.

Jackson asked, at Mumia's insistence, that the trial proceedings be
stayed-suspended temporarily-to permit him to file a motion with
a federal judge "so that he would have the issue of self-representation
decided by what he considers to be an impartial and unbiased judiciary."
Jackson also reminded Judge Sabo that "one black juror Uennie
Dawley) was removed for what one might consider to be mysterious
reasons," and that Mumia regarded that judicial act as symptomatic
of the abridgment of rights inflicted upon him. He didn't get to
conduct his own voir dire, and the one juror he did select was removed
literally behind his back. Those facts, Jackson argued, constituted an
impairment of Mumia's right to a jury of his peers, which he should
have had a hand in selecting, as well as an abridgment of his right to
represent himself.

Judge Sabo, stone-faced, let Jackson speak without interruption.
When Jackson sat down, Sabo's rigid features melted away and his
eyes came alive, and he made a speech of his own. He complained
that Mumia "does not take my rulings as a final ruling at this level."
As he has said countless times to virtually every criminal defense lawyer
who has ever tried a case before him, "If you don't like my ruling,
you can appeal it." That was Judge Sabo's mantra, his signal that he's
heard enough and wants to move on.

Hours were expended, largely against Judge Sabo's will, to cut
through Mumia's insistence on having his rights respected. He acceded
to McGill's entreaties to let the motion be argued extensively. He
listened patiently. He had lived up to his end of the bargain. He had
indulged in the charade long enough. Now he wanted the jury to
come in so that the trial could continue.

"Judge, before the jury comes in I'd like to-" Mumia was again
standing, his eyes fixed on Judge Sabo's.

Sabo interrupted him midsentence. "I don't want to hear from
you," the angry judge fumed.

The interruption only caused Mumia to stand taller, with an almost
military bearing. Courtroom observers have described him as
majestic, standing erect at the defense table, straight and still, like a
sturdy fence pole, with his full dreadlocks giving him a commanding
presence that made him difficult to ignore. He spoke with a steady,
deep baritone voice that dominated nervousness or fear. That too
commanded attention, even among those who would rather not listen.

Just by the sound of the two men's voices, one could detect that
Mumia had a power that Sabo could never have. Sabo was a weakwilled
man; he couldn't command respect by the force of his own
personality and character. Wearing judicial robes could not change
that fact. Bur power of personhood was all Mumia could draw upon
in this fight of his life. In addition, Sabo's concerns were petty in
comparison to Mumia's concerns: the judge wanted to move the case
along; the defendant wanted his rights acknowledged so he could present
his case in a way that he saw fit.

Yet the undeniable trump card was the fact that Judge Sabo had
authority-authority vested in him by the law. With that authority
Judge Sabo quickly ordered Mumia to sit down.

"Judge, I have a point to make, and you can order me to sit down.
You can order me thrown out of this courtroom. That's your prerogative."
Like a fence post, Mumia still stood.

"Sheriff!" Judge Sabo cried out. "Sheriff, take him out!" Judge
Sabo was exercising his authority but actually betraying his lack of
power.

"I am not disrupting, Judge."

Shaking his head, Judge Sabo muttered, "I am not going to put
up with it."

"I am not disrupting. You are disrupting my right to defend myself.
I'm not disrupting." A coutt officer took Mumia by the elbow
and he walked cooperatively to the exit. "You're playing hangman,
Judge!" The turmoil was grinding everyone to pieces. The door
slammed and, for a moment, one could hear birds outside chirping
above the hum of midday traffic.

***

In all, Mumia was absent for about half of the trial proceedings.
The Philadelphia Inquirer noted that "Abu-Jamal's actions in court
have in many ways paralleled those of the nine MOVE defendants
tried in 1979 for the death of a police officer during the shootout at
MOVE's west Philadelphia headquarters. There, too, the defendants
said that they did not want any lawyers to represent them, and there,
too, the presiding judge ultimately ordered some lawyers to defend
them anyway."

The colloquy typically sounded the same: Mumia vociferous in
his insistence on representing himself; Judge Sabo ever more cantankerous
in his rebukes-all contributing to an increasingly fierce straitjacketed
tension. If anything, Mumia became more emboldened with
each new day in the proceedings, as he soon began to hurl questions
at the witnesses after Jackson completed his cross-examinations. He
became more explicit in his disavowal of Jackson as his courtappointed
attorney, repeatedly reminding Judge Sabo that Jackson was
forced upon him against his will. A typical remark by Mumia:

Mr. Jackson is representing your interest. He's not representing
mine. He was employed by you, not by me. He's being paid by
the court, not by me. I would like the assistance of counsel of my
choice. I'm not being disruptive. I'm fighting for my life. This is
my trial. [Judge orders Mumia removed, and the sheriff escorts
him toward the door.] Your Honor, you're behaving in a way to
get me killed, get me convicted, aren't you?


The exchanges never advanced beyond Mumia's demand for recognition
of rights to which he felt entitled and Judge Sabo's demand
for order in the courtroom to which he felt equally entitled. It never
took long before they were at loggerheads, and Judge Sabo's frustration
inexorably led to Mumia's banishment from the courtroom, with the
judicial order of removal increasingly sprinkled with sarcasm and lessthan-
dignified language from the judge ("Take a walk," was one of
the judge's favorites). It was a quotidian pageantry of rebellion confronting
authority. But it would later become, by the prosecution's
telling, confirmatory "evidence" that the killing was no aberrational
flash of anger.

***

The defense case began on June 28 with Jackson's opening statement
delivered to a jury already growing weary and already won over
nine days earlier by McGill's own compelling account; that McGill's
opening statement was now backed up by evidence hardened the outlook
of the men and women in the jury box. They were in no mood
to hear a belated opening statement. Jackson had bypassed the opportune
moment for that-a reflection not of considered strategy but
of his unpreparedness. He spoke to the jury for only a few minutes,
mostly in platitudes about the importance of keeping an open mind
as the defense puts on its evidence. What that evidence would be,
Jackson didn't say. In fact, he wasn't even sure. When Jackson thanked
the jury for listening to his brief remarks, McGill felt secure that his
good-versus-evil narrative was the only real show in town.

Jackson's shoot-from-the-hip response to the prosecution's evidence
continued into the defense case. He had no firmly developed
plan to counter the account given by Cynthia White, or to diminish
the incriminating power of Robert Chobert's prompt on-the-scene
identification. He was so dispirited by the devastating impact of the
"confession" evidence that he couldn't bring himself to think about
ways to counter it. He had considered fashioning a defense that would
portray Mumia as killing the officer in a momentary bout of rage-exacerbated
by having been shot-but Mumia vetoed the plan. "They
want me to buy into that, to say I'm crazy," Mumia complained to Jackson,
referring to armchair litigators who offered advice as to how to defend
the case. The best that Jackson could do, so he thought, was to
hinge Mumia's defense on two witnesses-a young accounting student
named Dessie Hightower, and a young prostitute named Veronica
Jones-to establish the possibility that the shooter had fled the scene
seconds before the arrival of police. He also hoped to demonstrate for
the jury-for what purpose, Jackson never made clear-that Mumia
was, in fact, intentionally abused by police when he was arrested.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:21 am

PART 2 OF 2

Image

Mumia with his son Mazi-and a smile that reflected the promising
journalism career ahead of him. 1981. COURTESY OF MUMIA ABU-JAMAL

Image

More than a routine traffic stop- Billy Cook's Volkswagen parked in front
of Officer Daniel Faulkner's patrol car at Thirteenth and Locust, on
December 9,1981. CRIME SCENE PHOTO

Image

A puddle at the end of
a stream - blood from a
point-blank gunshot
wound to Officer
Faulkner's head.
CRIME SCENE PHOTO

Image

The parking lot through which Mumia ran to aid his brother. Was killing on
his mind as he raced towards his brother, Billy Cook, who was in a scuffle
with Officer Faulkner? CRIME SCENE PHOTO

Image

Lost freedom
and lost
promise-
Mumia being
transported
to court after
his recovery
from a gunshot
wound from Officer
Faulkner's
gun. PHILADELPHIA
DAILY NEWS

Image

Fighting back-Officer Faulkner's wife, Maureen, leading a counterdemonstration
against Mumia supporters. AP/WIDE WORLD PHOTOS

Image

Thin blue line -- Police Officer Daniel Faulkner, young and proud.
PHILADELPHIA DAILY NEWS

Image

Court of public opinion-attorney Leonard Weinglass (standing)
debating prosecutor Joseph McGill (seated) at Villanova University.
PHILADELPHIA DAILY NEWS

Image

Court of law -- the author arguing in court. THE STAR LEDGER

Image

The King of Death Row -- Judge Albert F. Sabo. AP/WIDE WORLD PHOTOS

Image

The Free Mumia movement on the move-Ossie Davis speaking at a Mumia
rally in New York, 1999. AP/WIDE WORLD PHOTOS

Image

Taking it to the streets -- supporters at the April 24, 1999 "Millions for
Mumia" demonstration. HARVEY FINKLE, IMPACT VISUALS

Image

No justice, no peace-the trial and conviction of nine MOVE members for the
1978 killing of a police officer was a harbinger of tragic events, including
Mumia's own entanglement in Philadelphia's judicial system and the 1985
bombing of the MOVE compound. COURTESY OF CLARK KISSINGER

Image

Mobilizing a revamped progressive movement- Mumia's supporters listening
to speakers rail against the death penalty and his conviction. HARVEY FINKLE,
IMPACT VISUALS

Image

Mumia's son Jamal in Philadelphia, August
1995. GABE KIRCHHEIMER, IMPACT VISUALS

Image

Family members of Mumia speaking to a crowd protesting his pending
execution. August 1995. Judge Sabo later issued a stay of execution.
CHRISTOPHER SMITH, IMPACT VISUALS

Image

A face an d a cause -- Mumia's case as the flashpoint for opposition to the death penalty and racism in the criminal justice system. HARVEY FINKLE, IMPACT VISUALS

Image

The whole world is watching-protest banner in France, one of many countries
with a large and active pro-Mumia support network. HARVEY FINKLE, IMPACT
VISUALS

Image

No "business as usual"-
clogging the streets,
people from around the
world descend on
Philadelphia.
AP/WIDE WORLD PHOTOS

Image

Feelings run high -- protesters
block the
entrance to ABC headquarters
to protest the
lack of coverage of the
1995 court proceedings.
CHRISTOPHER SMITH,
IMPACT VISUALS

Image

Thousands march for Mumia in downtown Philadelphia. GABE KIRCHHEIMER,
IMPACT VISUALS

Image

Bearing the cross-death chamber for carrying out lethal injections: the
method of choice for carrying out capital punishment in Philadelphia.
JACK KURTZ, IMPACT VISUALS

Image

On the other side of the glass- Mumia Abu-Jamal answering questions in an
interview for an HBO documentary. OTMOOR PRODUCTIONS

Jackson's first witness was an emergency room physician, a young
third-year surgical resident named Anthony Coletta. On December 9,
1981, Dr. Coletta was undergoing that rite of passage for young residency
doctors: enduring long stretches of hospital duty, sometimes
laboring without sleep for twenty-four to thirty-six hours. Dr. Coletta
was trying to catch a few winks of sleep in the predawn hours of
December 9 when his dreaded beeper went off. He had become adept
at quickly shaking out the cobwebs in his head, and he knew that he
had to fasten onto reality quickly now because he saw it was a trauma
code. Dr. Coletta explained to the jury that a trauma code indicates
that there are patients in the ER who face life-threatening injuries for
which surgery may be needed. The trauma code was for Mumia.

Mumia was lying faceup, his clothes soaked in blood, when Dr.
Coletta scanned his body for evidence of trauma. That is what emergency
physicians are trained to do: scan the body, detect trauma, and
quickly prioritize the order of treatment. Dr. Coletta, fully awake by
now, immediately saw that his patient had sustained numerous traumatic
blows to the body.

The most serious infliction of trauma that caught Dr. Coletta's
eye was a gunshot wound to Mumia's chest, located just below the
right nipple. He knew that Mumia was "on the verge of fainting,"
having lost a considerable amount of blood. He later determined that
about a fifth of Mumia's blood had been lost.

There were other injuries of which the doctor took note. He noticed
swelling over Mumia's left eye below a four-centimeter laceration
on his forehead, a laceration on his left lower lip, and swelling on the
right side of his neck and chin. To a lay person, it looked as if Mumia
had been given a beating. To a doctor, Mumia was a victim of "blunt
impact and penetrating trauma" -whether from a beating or from
some fall, medical science couldn't determine definitively. In any
event, it was the gunshot wound that concerned the young surgeon,
and he took action to save Mumia's life. Through family intervention,
he convinced his reluctant patient to submit to anesthesia. Had he
not, Mumia would have died.

Jackson's questioning lingered on the issue of Mumia's facial injuries,
which noticeably puzzled Dr. Coletta, who thought that the
gunshot wound was the most relevant injury. Jackson wanted to prove
that Mumia had been beaten at the scene by angry cops who immediately
jumped to the conclusion that this dreadlocked young black
man, perceived to be a member of the MOVE organization, had killed
a brother officer in cold blood. While Jackson was trying to substantiate
a rush-to-judgment theme in his defense, the jury didn't quite
see it that way. He had not primed them for that message, leaving
them alone to speculate that Jackson was doing the best he could to
represent his client without any real ammunition to shoot down the
prosecution's case. It was folly to expect that the jurors would, without
guidance and ardent advocacy, independently arrive at a judgment that
the police force, the embodiment of evil, were seeking to nail an
innocent man on a capital charge.

He had lost all sense of proportion, a not atypical occurrence with
a defense lawyer who hasn't mastered the art of advocacy. A trial
advocate must always be guided by the jury, not by ego. A trial is no
time to score points for the sake of scoring points. Something might
seem extremely vital to the lawyer, but utterly trivial to the jury. Is
the jury with me on this? a trial lawyer must ask herself constantly. Or
are thesejurors letting this testimony slide by them? Jackson never stopped
to take a breath to gain a sense of perspective. Did all of this emphasis
on Mumia's facial injuries, and the notion that the police beat him
up, really matter to this particular jury?

Probably not. Had Jackson looked over at the jury, had he
switched roles with them in his imagination, he would have realized
that his approach conveyed the impression that the defense had nothing
relevant to say about the key issue in the case: did Mumia fire
those bullets into Officer Faulkner? Nor did Jackson's advocacy seek
to focus attention on a genuine mystery in the case: how had Mumia
been shot? The prosecution offered its theory on the matter, but it
was ripe for attack, as none of the witnesses could actually account
for it. Jackson failed to understand, again due to lack of preparation,
that Mumia's gunshot wound could actually provide evidence to exonerate
him.

Instead, Jackson's advocacy was never more vigorous than when
he extracted testimony from witnesses about police handling of their
prime suspect. The jury was probably right in their judgment of Jackson-
he really had little to say in defense of his client. If this were a
police brutality trial, Jackson might have been able to put a victory
notch on his belt.

The truly important issue was the gunshot wound. In fact, it
would become one of the most critical areas of the evidence in Mumia's
struggle for a new trial. Dr. Coletta noted that the bullet had
lodged in Mumia's lower back, at the twelfth thoracic vertebra. Because
it had indisputably entered in Mumia's chest area, the bullet
had traveled downward through Mumia's body. The bullet had passed
through Mumia's right diaphragm, punctured the liver, and then
corne to rest on the lower spine. McGill quickly grasped the implications
of this testimony, but what about Jackson? If he had, he didn't
let the jury know it. McGill quickly tried to put out the fire.

The downward trajectory of the bullet through Mumia's body
seemingly contradicted the prosecution's theory, derived from Cynthia
White, that Faulkner fired a round as he was falling. That scenario
suggested an upward trajectory, not a sharply downward one. McGill
tried to guide Dr. Coletta into giving opinions that he was not
equipped to render, but Jackson didn't raise any resistance. McGill
first asked the doctor if he could determine "the position of the body
of the defendant at the time that the gun was fired." Dr. Coletta
admitted that he "would not be qualified to speculate about that." The
prosecutor was satisfied with Dr. Coletta's conjecture that the bullet
could have tumbled downward after ricocheting off bone. If the bullet
did ricochet off bone, it would allow for the possibility that Faulkner
had fired upward at Mumia as he was falling to the pavement. This "ricochet"
theory should be sufficient, McGill thought, to leave Cynthia
White's testimony fully intact. And McGill surely had no worries about
other medical evidence presented by the defense contradicting this ricochet
theory; the penny-pinching judiciary saw to that.

***

Dessie Hightower, a young accounting student at a local college,
was the next defense witness. Hightower, and his friend Robert Pigford
(who later became a Philadelphia police officer), were in the
vicinity of Thirteenth and Locust Streets when they heard popping
sounds. The two young men were in the area to pick up another
associate at a local bar, but they had arrived too late. The bar had
closed, so they were walking back to the car when they heard the
pops. Hightower initially thought they were firecrackers, but by the
third or fourth report, he realized they were gunshots.

Hightower and Pigford were across the street from the shooting.
"I was able to clearly see across the street to where the incident happened,"
Hightower explained. He noticed a person running eastbound,
toward Twelfth Street, just as he glanced in the direction of
the shooting. He couldn't make out if it was a male or female. Within
seconds, police units descended upon the scene. He watched the events
unfold as eight or nine officers surrounded a figure sitting inert on
the sidewalk. He described how the police hit and kicked this inert
figure before grabbing him by the dreadlocks. They then stretched
him out to transport him to a nearby police wagon, but not before
ramming his head into a light pole.

A police officer summoned the two men to come closer, and
Hightower explained that he saw someone run eastward past a hotel
in the middle of the block. Hightower was then escorted over to the
van to look at Mumia. He saw him crouched in the van, blood thickly
dripping from his forehead. He told the investigators that he couldn't
say if Mumia was the shooter because he didn't see the actual shooting.
Hightower and Pigford were then taken to the homicide precinct for
questioning.

Jackson ended his examination on that point, mistakenly believing
that he had exhausted this witness's value. Hightower had more to
say, however. But Jackson didn't know that, because he had not talked
to Hightower before calling him as a witness. Thirteen years would
pass before Hightower would explain what else he experienced with
law enforcement.

Nonetheless, Jackson secured the most important point that Hightower
could offer as a witness: evidence of someone fleeing the scene
immediately after shots were fired. He was confident he was going to
have another witness corroborating Hightower's observation, but before
he called this corroborating witness, he put the lead detective on
the stand.

Detective William Thomas was, at the time of the trial, a relatively
new detective. fu he described it, his role in the investigation was to
be the hub and the other investigators would be the spokes. It was
his job to be familiar with the investigation as a whole. Jackson wanted
to get more mileage out of Hightower's testimony, and he felt he
could do it with Detective Thomas. He asked him a series of questions
about the exploration of other leads or clues, insinuating that law
enforcement officers simply assumed Mumia's guilt once they saw him
at the scene, within feet of the slain officer, with an empty gun by
his side. But once Jackson began inquiring into whether investigators
tried to locate this fleeing person that Hightower described, McGill
became nervous.

When trial lawyers get nervous, they object. Even if a bona fide
legal justification for the objection is unavailable, they object anyway;
the important thing is to buy some time by objecting. And that is
what McGill did when Jackson asked Thomas if the fleeing person
had ever been located. Even Judge Sabo, not known to be liberal in
his allowance of defense attorneys to bring in marginal evidence,
couldn't see the basis for McGill's objection. In fact, McGill really
couldn't conjure up a coherent legal argument to bar Jackson's query.
He just blurted out: "You open up one big can of worms if you permit
this to continue." The evidence code has never had a can-of-worms
provision to justifY the exclusion of evidence. But that didn't matter
to McGill. If McGill insisted, with sufficient vigor, that evidence
shouldn't come in, then Judge Sabo would oblige him and rule the
evidence inadmissible.

McGill was absolutely right. Over a decade and a half later, the
whole issue of the fleeing person was a huge can of worms for the
Commonwealth of Pennsylvania.

Jackson, of course, wasn't thinking about the long run. He had a
case to try, and he knew that he had to keep pushing the point about
flight from the crime scene. Detective Thomas was actually unimportant
to him. It was his next witness who would enhance his theory of
the case.

"The defense calls Veronica Jones to the stand." A5 with Hightower,
Jackson hadn't talked to Jones before putting her in the witness
chair. Bur he wasn't worried. He had a police interview report
clutched between his thumb and index finger, the document dangling
in the stillness of the courtroom air, when he announced her name.
That police report was all he needed to feel good about Veronica
Jones. After the court session the day before, Jackson confidently told
reporters that he would be presenting a witness who would corroborate
Hightower's account that someone had fled the scene immediately
after the shooting.

Although it was summer in Philadelphia, Jones was sniffling as
though it were February. StuffY headed and lethargic from a cold, she
didn't enjoy being in the courtroom. Plus she hadn't had a shower in
days. Her hair was matted down, unlike the bloated Afro she wore
out on the street. If she wasn't in the courtroom, she would have been
nursing her cold inside her jail cell, incarcerated pending trial on a
weapons and robbery charge. It was a considerable step up from her
usual prostitution arrests.

She scanned the large courtroom in what appeared to be a gesture
of disrespect, as if to say, "What are all of you looking at?" She immediately
noticed that the spectators to her left, which was the prosecution
side, were mostly white males with closely cropped hair and
constipated expressions. There was nothing distinctive in their clothing,
other than the fact that some were in police uniform. Jones
couldn't get over how they all seemed to have dour expressions on
their faces. On the right side of the spectator section, however, black
men and women, with a smattering of light-skinned folks, sat with
animated expressions and varied hairstyles. She knew instantly, despite
her watery eyes and stuffy nose, that there were competing factions in
this case: one side was for the dead cop; the other for the brother who
faced execution.

And here she was, stuck in the middle.

"Good afternoon, Miss Jones." Jackson didn't give her a chance
to acknowledge the greeting. "I want to direct your attention to December
9, 1981, about three-fifty A.M. Tell us where you were." Jackson
dispensed with the usual introductory questions and jumped
immediately to the heart of the matter.

McGill had been slow and deliberate in bringing out the important
facts supporting his case. Jackson, by contrast, was peripatetic and
anxious. His voice quivered and he spoke rapidly.

Jones, remarkably unself-conscious of her unkempt appearance,
explained that she was working a corner on Twelfth and Locust, about
three-quarters of a block from the shooting. She was a prostitute, like
Cynthia White, lingering on the sidewalk to take advantage of the
inebriated crowds emptying out of the closing nightclubs and bars.

"And what did you see?" Jackson casually asked, quickly glancing
over at the jurors to assure himself that they were paying attention.

"All I seen was two men and a policeman."

Jackson took a step toward the witness box and looked at her with
a quizzical glare. Jones sensed that this lawyer, whom she had never
met, wanted her to keep talking. "I seen a policeman on the ground -- what
else can I say?"

Jackson wasn't sure what was happening. He peered down at the
police report, now clutched tightly in his hand. What did she mean,
"what else can I say?" It was all right there in this police report. All
Jackson wanted from her now was to answer the question in the way
he expected, which meant that she just had to tell the jury what she
had told investigating detectives six days after the shooting.

On December 15, 1981, two detectives caught up with Jones at
her mother's home in Camden, New Jersey, just across the Pennsylvania
border. Cynthia White had told homicide investigators that
Jones was in the vicinity of the shooting. Jones admitted to the two
visiting detectives that she was at the corner of Twelfth and Locust
Streets when she heard three shots. "I looked down Locust Street
towards Johnny Dee's and I saw a policeman fall down. After I saw
the policeman fall I saw two black guys walk across Locust Street
and then they started sort of jogging. The next thing I saw was a
wagon coming." Det. Daniel Bennett, the investigator who memorialized
Jones's statement in the police report, was "positive" that
Jones meant that the two men were running away from the scene of
the shooting.

Jackson asked Jones about that day when the two detectives paid
her a visit. She acknowledged that she was interviewed. That was a
start, Jackson thought.

"What, if anything, did you see anyone do when you turned
around and looked up Locust Street?" he probed, hoping that this
woman would just spit out what was in the report.

"I didn't see anyone do nothing. No one moved."

"No one moved at all?" Jackson pressed, trying to hold back the
panic swelling up in his chest-the type a child feels when he senses
he's lost. His head bobbed up and down, as he repeatedly looked at
Jones and then at the report now held with two hands at chest level.

Jones replied, "Not that I seen, no."

Jackson asked for a sidebar, furious. The jurors weren't following
the testimony anymore; they were now 'interested in something much
more interesting, something that broke the boredom of hearing words
piled upon words, hour after hour, each day followed by another. The
drama now was Jackson himself. They could see from his hurried and
repeated glimpses at the document in his hand and then at the witness
that he was floundering and panicking. How would he swim to shore?
Would he be able to?

Jackson called for a sidebar because he wanted to have the police
report read to the jury, but he knew he'd have trouble from McGill
and the judge. Jones was, after all, his witness, and there are strict
rules against impeaching one's own witness. The only way to avoid
those rules is to claim that the witness has become hostile or adverse
to the party calling her to the stand. Jackson made that precise point
at the sidebar conference.

"This is incredible," McGill declared.

"I am now going to plead surprise, because she is now claiming
nobody moved," Jackson responded excitedly. "Mr. McGill knows
from the statement what she said."

Judge Sabo was amused. "He pleads surprise," he said to McGill.

"I am going to cross-examine her!" Jackson blurted out, nearly
shouting and whispering at the same time. The panicked feeling in
Jackson's chest was now unleashed.

"Don't get excited," Judge Sabo cautioned. "Are you telling me
you never talked to her?"

"I never talked to her, no."

Judge Sabo shook his head. Even he knew that it was virtual
malpractice to put a witness on the stand without speaking to her first.
Because McGill didn't seem to be objecting, Judge Sabo granted Jackson's
request to impeach her with the interview statement, but he
warned Jackson to keep it narrowed to that issue only. Jackson exhaled
in relief.

He quickly showed Jones a copy of the police report and tried to
walk her through it. But the darkened tunnel that he was in was a lot
longer than he had thought. She disputed making the statements attributed
to her in the report. She even denied placing her signature
at the bottom of four of the five sheets comprising the report.

"How did your signature get on five sheets?" Jackson was angry,
and he lost his concern over showing it.

"My mother is a witness," Jones declared, fighting back, "I signed
one blank piece of paper." Jones not only disavowed seeing flight from
the crime scene, she was irrationally claiming that the police fabricated
a police report with an account that favored the accused. Jackson
couldn't figure out what was going on.

Jackson pressed on, but to the jury and court observers, he was
still floundering. Jones was supposed to be a short witness, nothing
more than corroboration for Hightower. Instead, Jackson had her on
the stand for what seemed like forever, hoping that he could undo
the catastrophe that had befallen his plans. He gave up his efforts to
get Jones to speak about flight from the crime scene when she angrily
told the jury that she was a "nickel bag high" from marijuana when
the detectives came to visit her.

And then, on a lark, he asked her, "Other than this one time
when detectives came to your home in Jersey to interview you, had
you talked to any other police at any other time?" Jackson was violating
the rule-much overstated, but still worth remembering-that
you don't ask a question to which you don't know the answer. But
desperate times call for desperate measures, so he just threw the question
out there for Jones to answer.

Veronica Jones unwittingly exposed the prosecution's underbelly.
"I had got locked up, I think it was in January," she stammered. "I
am not sure. Maybe February." Jones paused to think for a moment.
"I think sometime after that incident. They were getting on me telling
me I was in the area and I seen Mumia, you know, do it, you know,
intentionally. They were trying to get me to say something that the
other girl said. I couldn't do that." The revelation froze the entire
courtroom; even the reporters sat motionless, trying to grasp what
Jones had just said. Jackson had no idea this was coming, and he was
unprepared to exploit it. Meanwhile, Jones continued to provide the
defense with gifts: "It came about when we had brought up Cynthia's
name and they told us we can work the area if we tell them."

McGill objected. "She is now going into facts and trying to say
that the police are telling her she could work the area if they would
tell us that the defendant shot the officer."

Indeed she was saying precisely that, but Jackson was so stunned
he could only think to apologize. "I am not responsible for her answers,"
he lamely asserted. There was, of course, no reason to apologize
for Jones's spontaneous revelation that law enforcement officers tried
to get prostitutes to incriminate Mumia with the inducement that
they would be permitted to work the streets with impunity. No one
on the defense side of the case could be accused of generating this
testimony, as Jackson's lackluster pretrial efforts never brought him to
an encounter with any of the witnesses.

Judge Sabo recognized that Jones was now catapulting the case
into a different direction, so he gave a sympathetic ear to McGill's
protestations over the defense's incursion into "irrelevant" terrain.
"Why are you putting her on the stand?" Judge Sabo asked. "You told
me you were putting her on the stand for one purpose and that is to
tell what she saw that night. Let's limit it to that."

Jackson argued that he was now entitled to use her for another
purpose, in this case something far more significant for the defense.
This witness, he pointed out, was now exposing the underbelly of the
prosecution. The seamless narrative that White provided to the jury,
which formed the bedrock to the prosecution's theory of the case, was
being exposed as the product of law enforcement manipulation, and
all Judge Sabo could do was rebuke Jackson for using her as a witness
for evidence beyond that which he had anticipated.

Jackson's suspicions, which he had harbored since January when
he first cross-examined Cynthia White, were now confirmed. He had
heard that Philly cops manipulated prostitutes in criminal cases, but
never had he been able to put such evidence before a jury. Now he
had a witness on the stand talking about it. Jackson couldn't believe
he'd even have to argue the matter. What judge in his right mind
would block the defense from going down this path? Judge Sabo called
a recess and ordered Jackson to "talk with" Jones.

Ten minutes later, Jackson gave a report to Judge Sabo, based
upon his fitst and only conversation with Jones. "Just a summary of
what she said," he began. "She was picked up and she believed it was
in the first week of January. She was picked up by uniformed officers
who took her, as well as some other people, aside and said, 'Look, we
will let you work the street and we will do for you just like we have
done for Lucky.' " McGill placed his palms on the table, signaling he
was going to stand up. "Lucky is Cynthia White's name," Jackson
explained. "The police then said to her, 'We want to ask you some
questions about where you were, because we know Lucky said you
were out there that night and you saw what happened,' and all of
that. They told her that if she would give a statement that backed up
Cynthia White, they would let her work the street just like they were
letting her work. "

"I object to the whole area," McGill retorted, undoubtedly agitated.

"She is your witness," Judge Sabo admonished Jackson. "What she
saw on Locust Street that night you can go into as thoroughly as you
want to. All this other stuff is not relevant."

It was unbelievable. The judge was admonishing Jackson because
the witness was revealing police manipulation of eyewitnesses. Jackson
argued a point that he felt was beyond dispute; he was absolutely
entitled to bring out this sort of evidence. But Judge Sabo insisted
that he could not have a witness testify to matters that were not within
the scope of what she was initially offered for.

"All this other stuff is not relevant"-how could that be!? He was
stunned by the degree of Judge Sabo's obstinate bias for the prosecution.
How could he rule that this evidence was not relevant!? He
clenched his teeth, frustrated with having to deal with two prosecutors,
one of whom wore a robe. He walked back to his chair, and just as
he was about to sit down, looked up at Judge Sabo. He thought about
saying something more-what, he didn't know. In the end, gravity
got the better of him and he dropped down into the chair. What little
fight he had inside fled the moment Judge Sabo blocked this line of
inquiry. The jury would never get the full impact of "all this other
stuff." The Philadelphia Inquirer said the events were a "blow to defense
attorney Anthony Jackson and Abu-Jamal."

Jackson never could figure out the mystery of Veronica Jones.
Why had she so firmly recanted what she had told detectives six days
after the shooting? He would have gladly turned his back on that
question if only he could have brought out the full story for the jury
of police manipulation of Cynthia White. Little did he know those
two facets of Jones's ill-fated moment in front of the jury were but
two sides of the same evidentiary coin.

***

Jackson left court at the end of the day on June 29 wondering what
he should do the next day. While about one hundred Mumia supporters
marched in the rain from ciry hall to the site of the shooting
to hold a rally, he took another look at the file and noticed a police
report memorializing a statement by another witness, Debbie Kordansky.
It reminded him that he had wanted to track her down weeks
ago, but just couldn't find the time. It was another thing that fell
through the cracks. He called McGill to tell him he wanted to call
Kordansky as a witness the following morning, but that he didn't have
any means to locate her, as the district attorney's office had a policy
of withholding phone numbers and addresses of witnesses. McGill
claimed not to have a current address but did have a phone number.

Jackson dialed the number McGill gave him and a woman answered.
It was Debbie Kordansky. Jackson mumbled into the phone
that he represented Mumia Abu-Jamal. Kordansky knew instantly why
Jackson was calling, and she made it clear that she wanted no part of
the trial. Jackson tried to be friendly, telling her that she was an
important witness and that it was her obligation to tell the jury what
she knew. Kordansky didn't even ponder what Jackson was saying to
her. She immediately began telling him that she was in no shape to
get to court.

"What do you mean?" Jackson asked.

"I was in a bike accident, my face got all scratched up. I can't do
this, sir."

Jackson was dubious. He pressed her some more, his waning patience
evident in the way he began snapping at her.

"Listen," Kordansky finally exclaimed, "I am afraid to tell you
what 1 said because 1 really don't want to help you."

"Look, you just have to testify," Jackson insisted.

"I really don't want to help you, understand?" Kordansky wasn't
kidding. "I really don't like black people. 1 was raped by a black man
about five years ago and if 1 could avoid coming into court I will."

With that, Jackson laid the receiver down, gently, as if not to
wake a baby. He cursed in disgust. He didn't want this damn case.
Mumia didn't want him on the case. The people in the audience either
thought he was a fool or a cop hater. And now he was having more
witness trouble. He didn't have any money to hire an investigator to
track Kordansky down. He sure wasn't going to play detective and do
it himself.

The next morning, Jackson told the court clerk that he wanted a
conference with the judge before the jury was brought in. McGill and
Jackson went into chambers, as Judge Sabo played his usual round of
solitaire before the start of the day's session.

"What can 1 do for you fellas?" Judge Sabo asked, laying down
another card. He was quite good-natured when he was off the bench.
Some lawyers who hated to appear before him even claimed that he
could be downright charming. The old judge realized that the lawyers
were waiting for him to put the cards down, so he put the deck atop
the unfinished game and looked up at McGill. McGill leaned his head
to the right, indicating that it was Jackson who wanted to speak to
him. "What is it, Counselor?"

Jackson explained that he was having problems getting Kordansky
to come into court. Judge Sabo wanted to know what "this girl"
had to say. Jackson explained that she had described seeing someone
run eastbound on the sourh side of Locust Street after she heard
shots ring out. Kordansky was to be Jackson's third witness on that
point, but he feared that he would ultimately have only Hightower
testifying to it.

Judge Sabo tried to dissuade Jackson from calling her to the stand.
Hearing that she didn't like black people, Judge Sabo took on a false
avuncular affect and advised Jackson to dispense with her. "Maybe
you are better off without a witness like that," he warned. Sabo was
not giving genuinely helpful advice to a defense lawyer. In all likelihood,
self-interest-in particular, ending the trial before the Fourth
of July holiday-was his motivation.

Jackson disagreed. "I think I would be remiss if I did not make
some further attempt to get her in court."

Judge Sabo's initial good-natured mood immediately disappeared.
He wanted to move the case along. He sensed that it was winding its
way toward a conclusion, and anything that bogged the process down
irked him. His patience, always tenuous in the first place when it
came to criminal defense attorneys, was paper thin now. He complained
to Jackson that it was his fault for being in this predicament.
He castigated the beleaguered lawyer for not making arrangements to
bring Kordansky in weeks ago.

"I was forced into this situation," Jackson explained in defense of
himself. "I can't afford and I can't pay for an investigator. I have to
run around and do it. That is my problem, Judge. But I have to make
an attempt to bring her in." Judge Sabo's frustration toward Jackson
was irrational, akin to poking a man's eyes out and then blaming him
for being blind.

It would be thirteen years before Kordansky took the witness stand
in the case of Commonwealth v. Jamal. This jury would never hear
from her. Jackson just didn't have the wherewithal-financial or emotional-
to secure her attendance. The momentum of events was overcoming
his will completely. An effective defense lawyer is able to stop
that momentum. He is able to slow the pace of the trial down, if need
be, to give his client and himself a chance to deliberate on what will
come next. But Jackson wasn't acting as an effective defense lawyer at
this point, or at any point in the trial. The machinery of justice was
steam rolling over him.

Jackson's cynicism turned out to be correct: there would only be
one witness to the fleeing person, even though he had expected that
the jury would hear from four witnesses on that vital point. The jury,
not irrationally, thought that one witness was the best the defense
could do.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:22 am

You and your attorney goofed.

-- JUDGE SABO


11. DECIDING ON GUILT

Death penalty trials are unlike any other. The participants feel
the difference the moment jury selection begins. The heaviness
of death gives the jury selection process a lumbering quality, as people
are asked to engage in quick archaeological excavations into their souls
to determine whether they can be part of a process where human
beings will decide whether another human being should live or die.

The process of determining guilt remains the same, except, perhaps,
that the presentation of evidence is done with greater solemnity
to express recognition of the gravity of the ultimate aim. In an odd
way, the routinized procedutes of a trial serve as a comfort to the
jurors who long for some reassurance that they, mere mortals with
ordinary lives, can carry out the job more appropriately assigned to
Fate. The jurors are reminded, before they retreat to determine
whether the prosecution has proven guilt beyond a reasonable doubt,
that their verdict must be rendered without regard to punishment.

But unlike a conventional trial, a capital trial is broken into two
phases. If guilt is established (in the guilt phase), then those same
jurors must sit through another phase, one that is more wrenching,
more ineffable, and often more contested than the former. This phase,
known as the penalty or sentencing phase, is devoted to determining
whether the defendant's moral worth as a human being has been so
vitiated by his crime that he is no longer fit to remain among the
living.

The guilt phase is often just a prelude to the penalty phase. The
penalty phase is where the jury plays God.

Criminal defense lawyers are, deep down, an optimistic lot, once
they are in the midst of a trial. No matter how bad it gets in a trial,
they seem to cling to the idea that they can pull out an acquittal with
a stellar summation, or with some Perry Mason moment. Jackson was
no different. He had done little to undermine the prosecution's openand-
shut case. He had done nothing, as of yet, to attack the prosecution's
"confession" evidence. He virtually conceded that the gun
registered to Mumia was the murder weapon. Yet, with the trial winding
down to its last two days, he had not given a moment's thought
to the penalty phase.

This was a mistake. No lawyer entering into a death penalty case
should look upon the penalty phase as a mere appendage to the guilt
phase of the trial. It is not an afterthought. In most death penalty
cases, where guilt is essentially conceded, the real fight begins in the
penalty phase. But even where guilt is contested, even where hopes
for an acquittal run high, even where reasonable expectations may
justifY such optimism, competent representation in a death penalty
case mandates intense and thorough preparation for the penalty phase.

***

It was June 30, and Jackson had several witnesses lined up to testify;
none, however, to attack the extremely damaging evidence of the
emergency room confession. He had really put all of his evidentiary
eggs in one basket-the "fleeing man" basket, if you will. That effort,
in large measure, didn't payoff, with Robert Chobert and Veronica
Jones both recanting their original claim to police of seeing someone
run from the scene, and Debbie Kordansky unwilling to come into
court. He was now scrambling with the logistical difficulties of lining
up over a dozen character witnesses to testify.

In a close case, character witnesses can make a real difference.
The theory behind allowing witnesses to testify as to a defendant's
character is intuitive: a person with good character traits is less likely
to commit a crime in defiance of those traits than one who is without
them. Mumia had no criminal record. The Faulkner shooting
was his only ensnarement within the web of the criminal justice system.
Jackson, therefore, wasn't concerned about rebuttal testimony
to the slew of character witnesses he was to call. What he didn't expect,
however, was that he was doing McGill a terrific favor by
marching down that road.

Jackson's first character witness was Sonya Sanchez, a poet and
writer, known largely for her forays into issues of social justice in the
United States. At the time she took the stand in Mumia's trial, she
had been teaching at Temple University in Philadelphia for five years.
Before that, she had taught at Amherst and University of Pennsylvania.
Sanchez knew Mumia personally, but Jackson was compelled to stay
within the narrow framework of the law and limit his questions to
Sanchez's awareness of Mumia's reputation for nonviolence. She testified
that Mumia "has always been viewed by the black community
as a creative, articulate, peaceful, genial man." Her direct testimony
lasted about three minutes.

McGill, without an obligatory greeting, went into his questioning
as if a golden moment would slip through his fingers if he didn't
move quickly. "Miss Sanchez, in reference to your writings, you wrote
a foreword, did you not, for the book Asata Speaks, correct?"

Sanchez lifted her eyebrows in apparent recognition of where Mc-
Gill was heading, but oblivious to the assiduity with which he would
pursue his line of questioning. "That is correct," she answered simply.
Asata Shakur, an ex-Black Panther who later joined the violent Black
Liberation Army, had been convicted in New Jersey of killing a New
Jersey State Trooper.

"Did that not deal with convicted police killer Joanne Chesimard's
case?"

"Did you read it?" Sanchez replied, defensively.

"I am asking you." McGill wisely refrained from answering the
witness's question.

"It has nothing to do with that at all. It has to do with her as a
black woman in America."

"Were you not in sympathy with her position?"

"That is not correct. That is why I asked you, 'Did you read it?' "
Sanchez answered defiantly.

"Is it a fact, Miss Sanchez, it does deal with Miss Joanne Chesimard,
is that correct?"

"It deals with her as a black woman."

McGill then moved in for the clincher. "And was she not convicted
of killing a policeman and is presently a fugitive from justice,
is that correct?"

"I think so."

The damage was significant-even devastating: the only picture
the jury had of Sanchez was of a person who seemingly supported cop
killers. Is this the type of people Mumia associated with? the jurors
must have asked themselves. Jackson decided to pose some additional
questions to Sanchez in his redirect examination to dilute the damage
done by McGill's questioning. He was hoping to give the jury a more
well-rounded picture. Instead, he unwittingly brought the picture into
sharper focus.

"Has there been a purpose in any of your writings to criticize the
police department?" Jackson asked.

Sanchez was apparently oblivious to the dynamics of the courtroom-
at least, of that particular courtroom, with that nearly all-white,
predominantly male and elderly jury sitting just a few feet
angled to her left. "I have written about many facets of America,"
Sanchez answered. "I have written about the oppression in a place
called America."

"Oppression in a place called America"? McGill knew that his jury
would not comprehend Sanchez's words, because they didn't occupy
Sanchez's universe; they didn't share her outlook or embrace her political
commitments. "Oppression in a place called America" to this
jury was nothing more than sloganeering by people who wanted to
do away with the blessings of American liberty. This "place called
America" was their home, and it was, in their minds, the envy of the
world. Attacking "this place called America" was tantamount to attacking
the jurors' own identity.

Sanchez continued: "I teach also at Gratorford Prison. I teach
young men in prison and have also talked to the guards there. You
cannot talk about America without talking about oppression and the
police department and the courts."

McGill wasn't going to belabor the point, but he stood up to
cross-examine Sanchez again to reinforce the threatening message.
"When you are talking about oppression in your answer to Mr. Jackson,
the question is simply, are you including oppression by police on black
people?" McGill didn't know what the answer would be, but the answer
mattered little. Sanchez tersely replied, "By everyone."

And so it went for hours. A few minutes of direct examination in
which, as if by rote, each of the fifteen character witnesses vouched
for Mumia's nonviolent reputation, was followed by lengthy crossexaminations
calculated to portray Mumia as a political radical who
viewed law enforcement, and governmental authority generally, as the
enemy of black people. At several points, McGill attempted to introduce
that one item of evidence that he was unable to bring out earlier
at the bail hearing: that mysterious newspaper article, which he felt
would crystallize this theme and would make sense of this entire sordid
affair-make sense of the killing, the confession, the courtroom outbursts,
all of it. Though not a legal scholar, and never one to give the
defense the benefit of the doubt on an evidentiary ruling, Judge Sabo
instinctively recoiled at the attempt to bring in the newspaper article.
He felt that McGill had enough to secure his conviction and death
sentence, and he wasn't going to let McGill's thirst for more risk a
reversal years down the road .

***

Jackson must have been astounded. There, buried in the file, was
a police report that he had completely forgotten about. How could
that have happened, given what the report contained? He could
only blame it on the fact that he had just been too overwhelmed
with the sheer volume of material in the case and his assumption,
which he harbored right up to the start of the trial, that he would
not be trying the case. He went into court on July 1 armed with
the report and dedicated to making one more request of the judge,
perhaps his most urgent request to date-a request even Judge Sabo
surely would not deny.

McGill was thrilled when he walked into court. The guilt phase
of the case was going to be over by the end of the day. Notes for his
closing argument were tucked away in his briefcase. He could give the
closing argument in his sleep. Those he had delivered to other juries,
in less notorious murder cases, served as the template for this one.
Guilt was a lock, he thought. Never had he had such an overwhelming
case of guilt. McGill had his eyes set on the penalty phase.

Jackson nudged McGill at the prosecutor's table. "Joe, we gotta
see the judge." McGill asked Jackson what for, but Jackson refused to
say. "We gotta, that's all," he said.

"Your Honor, there is another matter I would like to bring to
your attention," Jackson announced in the judge's chambers. He
waited for the judge to say something, and discerning that the judge
was waiting on him to say more, Jackson cleared his throat to explain.
"We have now found there is another police officer that we would
like to have testify."

Predictably, Judge Sabo wanted to know what this officer would
say. He reacted to Jackson's statement not as a request but as a signal
that the defense was seeking a delay in the trial. He was not inclined,
to say the least, to allow for more delay, as he too had grown weary
of the trial. Jackson explained that Officer Gary Wakshul was one of
several officers who brought Mumia into the emergency room on
December 9.

"So?" Judge Sabo impatiently interrupted. Jackson continued to
explain that this officer had signed a police interview statement. "So?"
the judge interjected again.

Jackson knew by the judge's impatient tone that he was going to
have trouble. "The statement indicates, Your Honor, that ... well, it
says: 'During this time the Negro male made no comment.' " Jackson
could barely get the words out. He felt a tightness in his chest, as it
was clear to him that the judge was upset by this news. Wakshul was
with Mumia when he supposedly twice blurted out the confession,
Jackson explained, and yet he informed investigators that Mumia had
said nothing. Sabo registered no reaction to indicate that he understood
the import of what Jackson was saying. McGill, however, knew
exactly what Jackson was driving at.

Jackson was about to enter a litigation twilight zone.

"He is not around," McGill informed the judge. "I am going to object
to bringing this guy in. He is not around. I am not bringing him in
at the last minute." Jackson was puzzled by McGill's hostility. He had
been aggressive throughout the trial, but not hostile-not toward him,
at least. But now there was a discernible edge to his voice.

Judge Sabo nodded in agreement. "You knew about this before. I
am not going to hold up this trial."

Jackson protested, confessing that he had been unaware of Wakshul's
statement. "I was forced to try and remember everything that
everybody said and I couldn't do it," he admitted. It was a replay of
Jackson's remarks on April 29. He had pleaded desperately with Judge
Ribner then to give him some help by appointing a second attorney
on the case. He had openly admitted that he was in over his head,
with pretrial hearings and trial a little over a month away. And then,
two weeks later, Mumia took the burden away from him by opting
to represent himself. Judge Sabo himself told Jackson that he could
now relax, because being backup counsel was really no big deal. When
he was unexpectedly thrust back into the lead counsel role, the jury
had already been selected and testimony was about to begin. It was
enough just to keep his head above water, preparing for the next day's
proceeding the night before, with six-day-a-week court sessions. He
just didn't have the time or energy to digest all of the nearly two
hundred police reports in the file. Couldn't Judge Sabo, in the interests
of justice, just cut him a break?

Judge Sabo remained unmoved. "I am not going to delay the
court," he reiterated. In any event, Judge Sabo averred, the statement
was ambiguous. "I don't know what he means by this. 'During this
time the Negro male made no comments.' That may be as far as he
is concerned. Look, there were a lot of police officers in that room.
There were other people that were there that may not have heard it."

Judge Sabo was missing the point. Frustrated, Jackson tried to
explain that this wasn't a situation where a police report reflected an
omission of a fact. "Judge, he didn't say, 'I didn't hear anything.' He
said, 'He made no comments.' "

"It doesn't mean it wasn't said," Judge Sabo snapped back. That
the jurors were the ones who properly should be evaluating Wakshul's
statement was lost in the exchange. Judge Sabo had a penchant for
tendentious reasoning to defeat an argument by a defense lawyer, and
it was coming into play with full force now. "He didn't hear it as far
as he is concerned. He can't speak for everybody else that is in that
room. I am not going to delay the case any longer."

McGill gently offered reinforcement to Judge Sabo's anxiety to
complete the trial, noting that the July Fourth holiday was fast approaching.
It was a Thursday. The upcoming weekend was the holiday
weekend, in the cradle of American liberty. "You could have had this
man long ago," Judge Sabo stated with finality. "I am not going to
delay the case anymore. There has been enough delay."

Earlier in the trial, the judge had suspended the trial proceedings
for a half day to allow a white male juror to take a civil service exam.
That delay didn't count, presumably because this juror, unlike Jennie
Dawley, was deemed favorable to the prosecution.

Jackson refused to quit. He knew that he had to do something
about that alleged confession, and he felt terrible in overlooking Wakshul's
report. A man's life hung in the balance. He wasn't too exhausted
to forget that. Trying to make the point that his request to
bring Wakshul in to testify really didn't entail much of a delay at all,
Jackson asked, "How long is it going to take to get a police officer
here?"

"How do 1 know? He could be on vacation." Vacation? Why
would Judge Sabo offer that conjecture? Was he privy to information
that was unavailable to the defense?

Judge Sabo called a short recess, ostensibly to allow McGill to
inquire about Wakshul's availability. McGill picked up the courtroom
phone and chatted in a low voice. He placed the receiver down and
Judge Sabo motioned for the court reporter to begin typing.

"Your Honor, 1 have made efforts to find out where Officer Wakshul
is and 1 am informed that he is on vacation until July 8." Judge
Sabo's conjecture-was it conjecture?-turned out to be correct.

Jackson continued to press. "Well, does that mean he is not in
the city? Can we call him at home? Maybe he's still in the city."

Judge Sabo could only shake his head. He had never seen Jackson
so insistent. He had, up until then, looked upon him as a team player
in the judicial system: make an application, state your reasons, and
then accept the ruling of the court. This sort of persistence could earn
Jackson a bad reputation, which would jeopardize future court appointments
on criminal cases.

"I am not going to go looking for anybody now," Sabo growled.
"I have reached an end to my patience with this nonsense."

That was the end of it. Jackson knew that he wasn't going to get
this witness on the stand. Like Kordansky, Wakshul never appeared
in front of the jury. He finally did take the stand in the case of
Commonwealth v. Jamal over a decade later. Jackson had no way of
knowing it at the time, but Wakshul was a far more explosive witness
than he could have ever imagined. And on top of that, he was in
Philadelphia, just a phone call away.

Mumia wasn't privy to the events in chambers that morning. It
was nearly noon on July 1 when the proceedings resumed in open
court. The defense had no other witnesses. It now came time for the
most difficult decision a defendant must make-whether to testify.
Judge Sabo asked Mumia if he intended to take the stand. He and
McGill expected that this highly intelligent defendant, a man who had
made a name for himself in the communication business, the voice of
the voiceless, would sit in the witness chair and explain how it is that
he found himself slouched on the curb with a gunshot wound to the
chest, just a few feet away from a dead police officer. Mumia stood
up and glared at the judge.

"My answer is that I have been told throughout this trial, from
the beginning of the trial, the inception of the trial, that I had a
number of constitutional rights. Chief among them the right to represent
myself. The right to select a jury of my peers. The right to face
witnesses and examine them based on information they have given.
Those rights were taken from me." Mumia paused and looked over
his shoulder at the black faces in the audience, at the people who had
become his brothers and sisters in MOVE. He continued but it was
clear he was now speaking not to the judge but to everyone in the
room. "It seems the only right that this judge and the members of
the court want to confer is my right to take the stand, which is no
right at all." Mumia's voice then began to rise. "I want all of my
rights, not some of them. I don't want it piecemeal, I want my right
to represent myself and I want my right to make a closing argument.
I want my rights in this courtroom because my life is on the line."

Jackson stood as soon as Mumia took his seat. He announced,
"The defense rests."

Mumia catapulted to his feet. "The defense does not rest!" Mumia
exclaimed. He wanted to know why Officer Wakshul was not slated
to appear. Mumia understood fully that a failure to rebut the confession
evidence would destroy any hope of an acquittal. He also couldn't
stomach the rank outrageousness of it. He refused to let the police
frame him without a fight.

Judge Sabo said it was "impossible" for Wakshul to come in,
because "the officer is on vacation."

Mumia scrambled through documents strewn on the table, and,
locating what he was looking for, pointed to it. "On here it says no
vacation," Mumia countered. A typewritten notation on Wakshul's
police report of December 9, a notation that Jackson had overlooked,
contained the reference "no vac" on the top of the first page. The
judge waved that point off, pointing out that he had "the right to ask
for him before and you didn't do ie" Mumia thundered, "I had a
right to represent myself, but you stopped that, didn't you?"

"Your attorney and you goofed," Sabo answered back, too embroiled
in the exchange to notice the cruelty in the remark. Mumia
had been fighting throughout the trial for his right to control his own
defense, resulting in numerous expulsions from the couttroom, but
instead he had foisted upon him an unprepared, overwhelmed, and
unwilling advocate who simply dropped the ball in failing to subpoena
Wakshul. Now Judge Sabo was telling him that he'd have to accept
the consequences-the deadly consequences-of Jackson's dereliction.
"You stole my right to represent myself," Mumia retorted.

Judge Sabo was completely sucked into the argument. "You did
by your own actions."

"By fighting to defend myself, I stole my right? That is a lie,
Judge."

The whole process was a lie in Mumia's eyes. He had always
insisted on his innocence. The eyewitnesses saw him run across Locust
Street-that much they got right. But in the darkness, illuminated
only by a red flashing and twirling bulb on top of Officer Faulkner's
patrol car, they had missed the fact that he was felled by a bullet when
he came within a few feet of the officer, stepping toward the curb
with the officer slightly elevated on the sidewalk. Cynthia White, the
most damaging of the prosecution's eyewitnesses, was a liar; she was
a prostitute who was induced to lie, and when a witness, Veronica
Jones, was about to blow the lid off that dirty little secret, Judge Sabo
kept the lie packaged up. And now, as Mumia saw it, the most brazen
of all of the lies, the "confession" in the emergency room, was immune
from attack because an officer with an opposing story was supposedly
away on vacation.

"I am not going to allow this court to proceed to lynch me without
speaking in defense of my life. Damn!" Members of the audience
began shouting in support. Jackson held his head in his hands,
shocked that even Sabo, the most notoriously unfair trial judge in the
courthouse, which was not an easy distinction to earn within Phila-
delphia's criminal justice system, would descend this low in railroading
Mumia. He wouldn't even allow a simple phone call to Wakshul's
home when it was obvious that Mumia desperately needed this witness.
"I know you want to kill me," Mumia continued. "It has been
made abundantly clear."

***

Closing arguments are the crown jewel of the trial lawyer's craft.
Many trial lawyers like to think of closing argument as a time of
oratory; a platform for eloquence and brilliance to penetrate the seemingly
impenetrable logic erected by the opponent's stack of evidence;
an opportunity to bring coherence to the myriad pieces of information
extracted from witnesses, question by question, forged through evidentiary
injunctions that act as minefields to the trial lawyer as he
tries to reach his destination. But the truly great summation is something
far more sublime. Yes, it must be disciplined by logic and constrained
by reason. Yes, it must be uplifting, imbued with the passion
of an ardent advocate who genuinely believes in his client and in his
client's cause. Yet-and this is difficult for most trial lawyers to accept-
he or she must become invisible.

Invisible? But it is my moment to shine, says the trial lawyer. It
is my chance to persuade that jury of the justness of my client's cause.
It may very well be my only chance to save my client from the gallows.
How can I become invisible!? The trial lawyer must strive to have the
jury forget that it is the skilled and silver-tongued lawyer speaking of
injustice; the jury must feel the injustice itself, unmediated by oratory
and eloquence. It is an art form, carried out through a cultivated skill,
not unlike the skill of a virtuoso musician who becomes invisible as
the audience is swept away by the music.

Anthony Jackson stood in front of the jury, not too close, lest he
intrude on their space. He had not earned the right to approach those
men and women with an air of intimacy. He wouldn't admit it; he
couldn't admit it at that moment, but he knew deep down that his
client faced an inevitable conviction. The jurors themselves likely knew
that Jackson, deep down, knew this basic truth. Not on some con-
scious level, but deep inside their souls, they could sense the vibes of
resignation coming through Jackson's words. Jackson apologized to the
jurors. Some watched him with dour expressions; others with crossed
arms and stiffened shoulders. He hadn't even allowed himself to say
anything about the evidence, or about Mumia, or about the spectacles
that they, the jury, had witnessed throughout the trial. He apologized
for the slow pace of the trial, betraying his own sense of relief that
his ordeal was about over. "This trial has now come to an end. I am
sure most of you and many of you said, 'Thank God.' " Fifteen days
had passed since those jurors assembled to hear the evidence.

If the trial was an ordeal, it was such because of Mumia. An
apology for the plodding pace, and expressing relief that it is over,
served only to isolate Mumia in that courtroom. His own lawyer,
probably without awareness, had abandoned him within the first minute
of the closing argument. And that abandonment, unwitting as it
probably was, underscored Jackson's more conscious abandonment of
the case on May 13 when he pleaded unsuccessfully with the judge
to cut him loose from the case.

Mumia had spent much of his energy during the trial trying to
expose the betrayal of American justice. It was not so much an ordeal
from the defense perspective as it was a challenge to the ethical underpinnings
of the system. Jackson would never reveal whether he ever
allowed himself to understand that. He told the jurors, even before
discussing the evidence, that they could be proud of this system of
justice of which they were now a part as direct participants. "We in
America, unlike many other countries, are fortunate in that we are
here today as a result of the struggles of a number of people, people
that we don't know and people perhaps that we have never even read
about who have fought and died to make this system work." Whether
the jury agreed with this politician-like verbal applause for American
justice didn't matter. Jackson was not speaking for his client; he wasn't
giving voice to his client's cause. His talk of the greatness of American
justice did not spring forth from truths borne in the contest that took
place in the courtroom, right before the jury's eyes.

Jackson continued with the point: "It may seem kind of strange
to you when I say to you that Mr. Jamal, aside from the fact he was
arrested, is indeed fortunate, fortunate in an ironic kind of way. When
I say he is fortunate, he is being tried in America in a courtroom, in
an American courtroom." Strange, indeed. The point, if anything,
actually seemed to underscore the idea that his client's political harangues
were irrational, and thus, by extension, that he was capable
of irrational acts of violence. It was an odd point as well, given that
an American courtroom is one of the few places in the Western world
where a defendant is exposed to the death penalty.

The first half of Jackson's summation consisted of meaningless
platitudes that did nothing to help Mumia. For example, against the
mountain of evidence presented by the prosecution, Jackson pitted the
presumption of innocence. He argued that the presumption of innocence
is genuine evidence from which the jury could acquit. Literally
true, but the words were empty, drained of spirit and blood. It was
shallow, a manifestation of absolutely no preparation and commitment
to the case, to insist that some lofty legal principle could eviscerate
the evidence presented by the prosecution.

The final half of Jackson's summation urged the jurors to question
Cynthia White's credibility, noting her vulnerability to police pressure,
and highlighted discrepancies in the eyewitness testimony. "Looking
at the inconsistencies in the evidence, you'll know that Mumia Abu-
Jamal did not shoot Officer Faulkner," he asserted. He suggested that
perhaps the police jumped to the conclusion that Mumia was the
culprit based upon his reputation as a trenchant critic of the police.
"Did they want Jamal because he is a well-known journalist, primarily
in the black community?" he asked rhetorically. The jurors stared back
blankly. Where was the evidence for that thesis? How does that explain
the prompt on-the-scene identifications? These were questions McGill
would later thrust upon the jurors. As for the confession, Jackson
implied that Mumia, facing death on the emergency room floor, falsely
implicated himself to protect his brother. "When he thinks he's dying,
would love of your brother allow you to say that you were the one
who did the shooting?" Jackson asked.

Some of Jackson's points respecting the troublesome nature of the
eyewitness testimony were valid, if not astute, but they were delivered
with a mind-numbing tone, almost as if he were reading a shopping
list. He had no coherent story line about what happened on the night
in question; he had no deep understanding about his client or the
social backdrop to the investigation. He was presenting a grab-bag
closing argument, offering a menu of choices to justify an acquittal,
hoping that the jurors would be enticed to select just one. It had the
trappings of a closing argument, but not the substance of persuasive
rhetoric. fu a criminal defendant facing the death penalty, Mumia was
not constitutionally entitled to persuasiveness. He received the accoutrements
of due process, and that was more than many of his brothers
and sisters on death row had received.

Most importantly, as Jackson ended his closing argument it was
plain that he had never taken away the momentum McGill acquired
after he addressed the jury in his unopposed opening statement. There
never was any question who stood for good and who embodied evil.
The trial had worked out beautifully for McGill. His evidence had
been contested by a criminal defense lawyer, giving it a veneer of
legitimacy. A jury assumes, for it can hardly assume otherwise, that
when evidence is challenged by the defense, it could not have been
challenged more thoroughly. A jury does not know what it cannot
know-that other evidence that could counter the prosecution's case
exists outside of what they heard in the courtroom.

When McGill began his closing argument, he reinforced the point,
telling the jury that the defense had had the prosecution's file at its
disposal, a right accorded a defendant to permit the fair challenge of
the prosecution's evidence. He was essentially echoing Jackson's
American-justice-is-great theme. The prosecution's evidence had been
challenged in the way the great American justice system says that it
should be, and he wanted the jury to understand that. Jackson had
given it his best shot and he could do no better-not for lack of skill
or preparation but because his client was manifestly guilty and the
evidence was too compelling to rebut. The jury was now privy to all
of the relevant information bearing upon the guilt-innocence inquiry,
as the defense had the wherewithal to present its own evidence of
innocence, if such existed. McGill wanted the jury to appreciate that
fact as well. Only then can the jury truly hold in appropriate esteem
the value of that evidence, for the prosecution's case had withstood a
robust challenge, thereby endowing it with a power from which there
was no escape.

McGill had been shrewd throughout the trial, but at times that
shrewdness led him to deliver low blows. He told the jury that it
could acquit the defendant and there would be "nothing that anyone
could do about it." Acquittal, McGill argued, was an "immense
power" that the jury retained, and like all immense power, it must be
used with restraint. McGill was undermining the scope of the presumption
of innocence and the unique judicial calculus that is the hallmark
of American justice: it is better that ten guilty go free than one innocent
be convicted. The finality of an acquittal, McGill argued, must be
weighed against the fact that "if you find the defendant guilty ... there
would be appeal after appeal after appeal." McGill was arguing that
caution should be exercised in favor of conviction, not acquittal; that
it was better to err on the side of the prosecution, because that sort
of mistake might be remedied by some appellate court at some future
date.

The low blows continued. Throughout the trial, McGill graciously
advised Judge Sabo on ways to mitigate the prejudice associated with
the acrimonious exchanges between Mumia and the judge. McGill
and Judge Sabo shared a desire to "protect the record" against an
appellate reversal. But McGill felt no constraints in making use of
Mumia's difficulties with the judge as a fulcrum for generating sympathy
for Officer Faulkner and outrage over Mumia's "arrogance and
defiance." Mumia's dogged insistence on his right to represent himself,
and his repeated reminder that he was on trial "for his life," became
the focal point of McGill's advocacy.

"Let me tell you this, let me make this clear," McGill enunciated
slowly, moving down the railing. "You have heard constantly, constantly
you have heard about the facts that this defendant is on trial
for his life. You have heard this all the time." The bitterness in Mc-
Gill's tone revealed the depth of his disgust at Mumia's courtroom
behavior. "Let me add this. Will you understand that this defendant
is on trial for taking somebody's life, too. That is one thing we hadn't
heard much about."

This was utter nonsense. The whole trial was about the accusation
against Mumia for "taking somebody's life." But McGill didn't pause
for the jury to consider the absurdiry of this point. It was only a
bridge to the emotional chord McGill wanted to strike: "It may be
true and indeed it is true that Daniel Faulkner on December ninth,
at three-fifty-eight as he looked up at the barrel of this gun, did not
have an opportunity to ask for any type of counsel, or to make any
type of abusive remarks in relation to anybody, the system, the laws,
or anything. No one quickly ran down and said, 'Do you want an
attorney? Do you want something? Do you want this? Do you want
that?' He was just shot in cold blood with this weapon."

The rwo mutually reinforcing images were compelling: on one
mental screen was a helpless police officer, looking up at a gunwielding
angry black man dedicated to destroying American values,
and on the other, Mumia Abu Jamal at the center of numerous courtroom
spectacles where judicial authority and the legitimacy of the
system were under verbal assault. Mumia's struggle for recognition of
his rights, his quarrels with the judge, were now the organizing force
to the evidence against him. McGill's strategy was coming into sharper
focus, and it would later dominate the proceedings when McGill
turned to advocating death. This was no spur-of-the-moment killing.
To understand the evidence, McGill was saying, you must understand
who Mumia is; and who this man is was displayed in the well of the
courtroom throughout the trial proceedings.

Why else would Officer's Faulkner's brain be shattered with a
high-velocity Plus-P bullet that explodes upon contact? That Mumia
would have Plus-P bullets was consistent with his attitude toward
authority-those bullets destroy, and that was the essence of Mumia's
radical political sentiments: destruction of the white power structure,
of the status quo. Why else would Mumia blurt out a profanity-laced
confession that boasted of a cruel assassination? Only an arrogant and
disciplined warrior could muster the bravado to do this in the com-
pany of scores of police officers while lying vulnerable on an
emergency room floor with a potentially fatal gunshot wound to the
chest. Mumia was no ordinary street thug. To McGill, the confession
revealed that Officer Faulkner was a casualty of a certain kind of war,
and that war would, three years later, lead to the highly publicized
and much criticized bombing of the Osage Avenue MOVE residence.
Whereas Jackson's closing argument had no resonating theme, Mc-
Gill's closing packed a wallop derived from a tightly drawn portrait,
the accuracy of which was seemingly irrelevant to this prosecutor, this
judge, and this trial process. The important fact was that this portrait
was tailor made for this nearly all-white blue-collar jury.

The actual eyewitness evidence was really an afterthought, a form
of confirmation of what the jury already believed to be the case. That
is why McGill reserved his discussion of the eyewitness evidence for
later in the closing argument. McGill understood the rhetorical value
of imprinting an image on the minds of the audience before launching
into the more logical aspects of an argument. The mental image, the
picture of a helpless cop looking up at an antiauthoritarian black radical
poised to blow his brains out, fertilized the emotional soil from
which "rational" justifications for conviction would grow.

"What you have, ladies and gentlemen, is an individual who was
observed by the witnesses and who never left the scene." Four witnesses!
None of those four, McGill emphasized, had any motive to
implicate an innocent man in such a barbaric act. "What more compelling
identification testimony would you need than that?" McGill
airbrushed out of his rendition of the evidence the confusion that must
have suffused the scene, with witnesses looking upon events through
a flashing turret light atop a patrol car. McGill glossed over the discrepant
physical descriptions of the shooter, and the evolving narrations
about what was supposedly observed. These nuances were
precisely that: nuances that had no significance in the face of who the
defendant was. It was enough to fasten upon the fact that four witnesses
observed Mumia dart toward Officer Faulkner, and that seconds
later, a dark figure stood over the uniformed young man, bent over
him and fired the Plus-P bullet into his brain. Mumia never left the
scene, McGill repeated over and over. "That is the type of evidence
that you may well find compelling."

The only thing left for McGill to do, as he wound his way to a
conclusion, was to rally his audience. It is not enough to convince.
The trial lawyer ultimately must persuade, must induce action in others,
which is a far more difficult thing to do. Because the jury will
eventually assemble in a small room with a mandate to take action,
trial lawyers must find a way to rally the jury to act. "This is one
vicious act," McGill said with controlled anger, crouching down on
the floor and looking up to reenact the horror that Faulkner must
have experienced, seeing a gun pointed at his face. "This is one uncompromising,
vicious act. This is one act that the people of Philadelphia,
all of them, all of you everywhere are outraged over." McGill
wanted the men and women in that jury box to understand that they
were being watched, that their actions would be judged by their fellow
citizens. "This act demands action! Responsibility and courage!"

The jury was asked to do something for the "people of Philadelphia."
How could they resist that plea?

***

The following day, Friday, July 2, 1982, didn't begin well for Jackson.
He was awoken at 6:30 A.M. by fire engines parked in front of
his house. Apparently, and it wasn't the first time during the trial,
someone falsely reported a fire at his home. After resolving matters
with disgruntled firefighters, Jackson readied himself for the day. He
stopped by his office shortly before 9:00 A.M., fully expecting to make
it into Courtroom 253 by 9:30. He then received a call from his
fifteen-year-old son just as he was about to trudge over to the courthouse.
His son had received a threatening phone call, apparently a
threat of kidnapping. Jackson tried to keep calm as he instructed his
son to get over to his grandmother's home. His son called back a
couple of minutes later. He had received another call, from a different
person but with a similar message. Jackson rushed over and took his
son to his grandmother's.

It was remarkable that Jackson was able to keep enough focus to
sit through the soporific verbiage that precedes jury deliberations. Before
juries are allowed to evaluate the evidence-they are constantly
reminded during the trial not to come to any conclusions until deliberations
begin-they must receive instructions on the legal principles
applicable to a case. Such instructions generally fall into two categories:
first, the judge explains the general principles that operate in all criminal
trials, such as the burden of proof and the presumption of
innocence; second, the judge sets forth the particular elements of a
crime, each of which the prosecution must prove beyond a reasonable
doubt.

Shortly after 11:00 A.M., Judge Sabo began delivering the instructions
on the law to a jury anxious to begin deliberating. At 11:48
A.M., the twelve men and women assembled in a room and began
discussing what they had seen and heard in the courtroom. Meanwhile,
Mumia sat alone in his cell, writing and waiting. Jackson and
McGill also waited, passing the time nervously in their own ways.
They waited for about six hours, with a startling intercession before
the verdict was rendered. The jury had sent in a note, at 2:30 P.M.,
asking for further clarification on the law of manslaughter. The note
signaled that the jury was beyond the whodunit question. Perhaps,
the note implied, Mumia was guilty of manslaughter, and not murder,
because he had killed the officer in a state of uncontrolled rage, induced
by the maltreatment of his brother. It was a stretch. Whoever
killed Officer Faulkner committed an act that appeared to be the
quintessence of first-degree murder. Was the requested reinstruction
on manslaughter simply a bump in the road on the way to a guilty
verdict for murder in the first degree?

The jury foreman, George Ewalt, a telephone lineman and Vietnam
veteran activist, stood up and looked to the court clerk for guidance.
He had been chosen foreman by the others in the jury room
because he seemed able to keep the discussions organized. The jurors
never questioned in their deliberations that Mumia was the man who
pulled the trigger to his .38 revolver which propelled the bullets that
struck the young officer, once in the back and once between the eyes.
They had spent some time debating whether the tricky element of
premeditation-a key ingredient to a first-degree murder charge-had
been established beyond a reasonable doubt. When Judge Sabo reinstructed
the jury on the law of manslaughter and the varying degrees
of murder, he accurately told the jury that premeditation can be
formed in an instant. That clarification put the deliberations back on
track, leading to the announcement of the verdict. [i]

With a slow cadence, the clerk asked the jury foreperson if the
jury had reached a verdict on the weapons possession count. Whether
the clerk inquired of the trivial weapons possession count for dramatic
effect or simply out of convention is unclear. Everyone, of course,
wanted to know about the first-degree murder count. Ewalt punctured
the drama, so anxious was he to announce the verdict. "Guilty of
murder in the first degree," he said. No one in the courtroom had
trouble hearing the announcement. Propriety, of course, is the bedrock
of solemnity, so the clerk again asked Ewalt to announce the verdict
on the weapons possession count. With that guilty verdict announced,
Ewalt was then given the green light to announce, once again, the
jury's verdict adjudging Mumia Abu-Jamal a cop killer.

"The initial response to the verdict was one of uncharacteristic
calm for a courtroom that has seen as much turmoil as Courtroom
253 has during the month-long Abu-Jamal trial," one reporter wrote.
Maureen Faulkner wept quietly with her hands clasped tightly together.
On the other side of the aisle, Lydia Wallace, Mumia's sister,
put her hand on her mother's lap. Edith Cook was visibly ashen; her
precious son-the one who always unabashedly showered her with
love, the one who refrained from eating meat because it was too decadent
and itself the product of violence against other living creatures,
the one who cared little for conventional success because too many
continued to suffer the sting of poverty and loneliness, the one who
she looked to with distinct pride-the precious baby who she brought
into the world and strived to protect against the psychic wounds of
poverty; this young man who had lived his life to get to this point
had been adjudicated a convicted murderer.

Mumia was sitting deep in his chair, his legs crossed, torso curled
and his face tightened, as the verdict was read. Was it anger, or just
holding back the hurt, that caused him to sit motionless for the entire
ten minutes that it took to record the verdict? When the deputy sheriffs
moved in to escort him out of the courtroom, he rose gingerly
from his chair and looked out toward the audience. He exclaimed:
"Ona Move! Long live John Africa! This system is finished!" His defiance
revealed nothing about how he was really feeling.

It was the end of the day on a Friday of a holiday weekend. Judge
Sabo called the lawyers to the bench and gave them a choice: start
the penalty phase immediately (meaning, that very night) or begin
promptly the next morning. "What is your pleasure, gentlemen?" he
asked, evidently pleased with the outcome. Jackson was too emotionally
winded to respond. He'd had enough of Judge Sabo, McGill, and
Mumia. He wanted the whole ordeal over. McGill, noticing Jackson's
reticence, chimed in, "Judge, I think the first thing tomorrow morning
would be in order." There would be no respite for Jackson to collect
his thoughts on how to advocate for Mumia's life. He had done no
preparation, absolutely none, for the penalty phase. He had no witnesses
lined up. He had no strategy in mind. The jury would decide
whether Mumia should live or die, but it would not receive meaningful
assistance from Anthony Jackson. Thirteen years later, when
asked how he passed the time that evening, Jackson confessed that he
had no memory of it.

Jackson walked past the railing and into the spectator section on
his way to the courtroom exit. Suddenly shouting jolted him like an
unexpected slap in the face, causing him to stop midstride. "You're a
traitor," MOVE member Jeanette Africa screamed. "You're going to
pay for this!" Jackson had put up with a lot of berating for the past
month, and he had kept his own feelings bottled up in order to forge
ahead with his unwanted duty. But, with his emotional guard down,
this particular verbal attack especially stunned him. Others joined in
the screaming, angered by his failure, as some were saying, to "get off
the case." Jackson tried to get to the exit door. Jeanette Mrica quickly
moved toward him and bumped into him. "Don't touch me!" Jackson
warned, speaking for the first time in response to the screaming. The
brief outburst uncorked his pent-up emotions. He collapsed onto a
seat and began to cry. Jeanette Mrica continued to shout obscenities
at him.

Reporters observed the scene with dismay. They felt sympathy for
Jackson, a man who, from their vantage point, had tried his best to
help a totally ungrateful client. They saw from their spectator seats
Mumia's open disdain for "this shyster," his repeated castigation and
insults. He toiled in the barren fields of a criminal courtroom, doing
a thankless job, and in the end, he was reduced to tears by a barrage
of insults. And tomorrow he would have to convince this same jury,
in this hostile milieu, to spare Mumia's life.

After the supporters and Mumia's family emptied out of the courtroom,
the Faulkner family and police officers quietly celebrated, hugging
each other and shaking hands. McGill, meanwhile, met the
waiting news reporters outside: ''I'm especially proud of the courage
of the jury. To stand up to the shouting, the antics that have gone
on in this courtroom, takes something special. I'm also very proud of
the way the Faulkner family has stood up to this-they're a fantastic
example to all people. They kept their cool at all times, even when
they were being abused inside and outside the courtroom." McGill's
comments appeared underneath banner headlines the following morning:
"Abu-Jamal Found Guilty of Murder."

_______________

Notes:

i. My understanding of what occurred during the deliberations derives from interviews of actual
Jurors.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:23 am

Political power grows out of the barrel of a gun.

-- MAO TSE-TUNG

This decision today proves neither my guilt nor my
innocence. It proves merely that the system is finished.

-- MUMIA ABU-JAMAL AFTER THE JURY'S VERDICT


12. DECIDING ON DEATH

How juries decide cases is shrouded in mystery, and, it seems
to me, it should be so. Researchers, however, have expended
considerable effort to penetrate the mystery of jury decision making
in capital cases precisely because the question to be resolved is so
profound. Their published studies, therefore, are important not simply
because they examine a highly unique process in the criminal justice
system but because they teach us something about ourselves. After all,
jurors in a capital case are plucked out of their daily routines to sit in
ultimate judgment of another human being, even though they are not
taught, either in school or in the crunch of daily living, how to judge
whether a human being should live or die.

In the guilt phase, the jury searches for facts from which a determination
is made about an actual criminal episode. The jury understands,
at bottom, that their decision is connected to a real-world event
from which the verdict can be adjudged true or false. At the penalty
phase, by contrast, there are no events that the deliberation process
seeks to capture within a verdict. The moral decision whether to vote
for death cannot be judged as true or false. The penalty phase decision
making process propels human beings into that metaphysical wall separating
life and death. How are human beings to decide whether to
extinguish another human being? Are we even equipped to do that?

In 1990, a group of researchers, experts in widespread fields of
law, sociology, political science, and criminology, from over a dozen
universities in the United States, assembled to begin a research project
known as the Capital Jury Project. Their aim was to study how human
beings arrive at their decisions in a capital case. It is clear from the
studies that the most important factor in the jury's life-or-death
quandary is whether the defendant will pose a future danger to society.
Killing, in short, is palatable only if done in the name of life
itself.

This finding by the Capital Jury Project reveals how important it
is for a jury to be aware of alternatives to the death sentence. When
a jury is made aware that a life sentence without possibility of parole
actually means lift without parole, then the chances of a life verdict
increase dramatically. According to the Capital Jury Project, "one of
the primary influences on jury behavior in capital cases is the fearoften
based on misunderstanding-that a defendant who does not
receive a death sentence might return to society in a relatively short
time and commit more crimes of violence." Some states, like Texas,
refuse to implement a true life-without-parole system because their
legislatures fear that juries will be less likely to impose death under
those circumstances. While these politicians cynically castigate the parole
system, they keep it on the books in order to keep the death
machinery operating.

Another critical factor in the jury's life-death decision is the notion
of juror responsibility. The researchers found that jurors understandably
enter into penalty phase deliberations deeply troubled over what
they are being asked to do. One juror in an interview conducted by
a Capital Jury Project researcher reported: "The first thing we did was
everybody just collapsed literally in each others' arms and cried, knowing
that we had to do that .... Somebody just said, what right do we
have to decide if somebody should live or die? And then, we had a
large discussion about that, about whether we as people had that
right." The emotional barrier expressed by this juror is the chief enemy
of a death penalty prosecutor. A prosecutor who wants the jury to
vote for death needs to tear down that barrier. He or she needs to
diminish the sense of responsibility that most jurors feel when given
the power to decide between life or death.

Here, too, the findings of the Capital Jury Project illuminate the
process. One of the most common jury reactions to this emotional
barrier is to look to "the law." If it is "the law" that is doing the
killing, then the jury decision rests not on individual moral judgment
but on an abdication of responsibility rooted in the comforting notion
that the goodness of "the law" decrees the result. The fact is, "the law"
does not tell the jury which sentence to choose-indeed, the Constitution
forbids it. The Constitution requires that the jury be given the discretion
to choose life, no matter how horrendous the crime. Yet the
Capital Jury Project found that jurors are prone to misinterpret jury
instructions-indeed, are emotionally driven to misinterpret them -- in
order to convince themselves that the law dictates a certain result.

In one North Carolina case, out of forty-nine jurors questioned,
according to researchers, "only two were able to tell us properly what
the legal requirements of mitigating testimony were. And in every
instance, where the jurors were mistaken, their mistake made a death
sentence more likely. The misunderstandings are very deep." [1]

Another dynamic the Capital Jury Project research reveals is that
jurors will ignore the fact that they are engaged in a morally weighty
decision whether to authorize the killing of another human being and
will transform the penalty phase into a mechanical process of weighing
facts to derive an outcome that the law decrees is the "right" one.
Stated another way, jurors treat the penalty phase as no different from
the guilt phase inasmuch as the penalty phase is looked upon as simply
a process of factfinding. Jurors, then, take comfort in the notion that
the law is doing the killing, not them.

The jury in Mumia's case was probably no different from most
capital juries. The men and women who were being asked to decide
whether Mumia should live or die were susceptible to the same emo-
tional barriers, and thus the same need to avoid responsibility, that
were discovered in the research by the Capital Jury Project. They had
the same concerns over future dangerousness and the same impulse to
justify killing with rationales rooted in the preservation and sanctification
of life.

It would be up to the lawyers to channel this amalgamation of
human complexity, either toward life or toward death.

***

Reasons to let live, reasons to kill. It is sometimes best to think of
complex things in their starkest terms. The penalty phase is, when
handled conscientiously by a dedicated capital defense lawyer, a complex,
difficult process. But, stripped down, it is quite basic: reasons to
let live, reasons to kill.

For the defense attorney, the penalty phase presents a unique
challenge. A case reaches the penalty phase only after the jury has
rejected the defense lawyer's closing argument in the guilt phase. In
a noncapital case, that rejection stings, but at least the trial itself is
over. In a capital trial, that rejection spills over to the next phase,
because the rejected defense lawyer, credibility shaken, if not shattered,
must urge the jury to accept what he now has to say. Conversely,
the prosecutor enters the proceeding already triumphant in
the battle of good over evil.

McGill's penalty phase evidence was already part of the record
even before that phase began. The evidence that justified the guilty
verdict would be the evidence that would justifY death. A skilled
death penalty prosecutor, McGill had litigated this case from the
very beginning with an eye toward getting a death verdict. He
sensed that the jury didn't need to hear more evidence. They only
needed motivation to do that which most human beings are reluctant
to do. McGill turned over the case to the defense, poised to
shoot down whatever evidence Jackson could muster to save his client's
life.

At 10:34 A.M., Mumia Abu-Jamal rose and announced that he
"would like to read a statement." McGill knew that Mumia would
issue a statement, because he had attempted to do so after the guilty
verdict was announced. McGill spent part of the prior evening preparing
his strategy to attack his target. Jackson, for his part, had no
idea what Mumia was about to say; nor did he particularly care. Mumia
had treated him badly throughout the trial, berating him openly
as a courtroom hack whose true allegiance was to the assembly line
justice system that carted away beaten-down human beings to metallic
warehouses. Jackson had had enough.

Mumia had had enough of Jackson also. He did not consult with
him about the wisdom of the statement he was about to give. In fact,
the only meeting the two had in reference to the penalty phase was a
brief exchange in the lockup area outside the courtroom earlier that
morning. The jury looked upon the man they adjudged a cop killer
as he began to speak without interruption.

"Today's decision comes as no surprise. In fact, many will remember
that I said this would happen last week when John Africa
predicted and prophesied this jury decision. I want everyone to
know it came after a legal, trained lawyer was imposed upon me
against my will. A legal, trained lawyer whose interests were clearly
not my own. A legal, trained lawyer named Tony Jackson, a man
who knew he was inadequate to the task, and chose to follow the
direction of this black-robed conspirator, Albert Sabo, even if it
meant ignoring my directions ....

"It was a legal, trained lawyer who followed Sabo's direction not
to introduce the testimony of Policeman Gary Wakshul, a cop
who, according to his statement of 12-9-82, arrested me, carried
me to a wagon, accompanied me to Jefferson Hospital, guarded
me, and returned to [the] Homicide [precinct] later that morning
to make a statement. According to Wakshul, "We stayed with the
male at Jefferson until we were relieved. During this time, the
Negro male made no comments .... " According to Sabo, Wakshul
is on vacation, so despite the fact his testimony is directly linked
to a supposed confession, he would not be called in to testify. How
convenient! It was a legal, trained lawyer who told the jury "You
have heard all the evidence"-knowing that wasn't so. The jury
heard merely what Sabo allowed-nothing more. Many jurors
were told I would cross-examine witnesses, make opening and closing
arguments, and explore evidence. What they also heard was I
would act as my own attorney. What they saw was a man silenced,
gagged by judicial decree.

"A man ordered not to fight for his life. Every so-called 'right' was
deceitfully stolen from me by Sabo. My demand that the defense
be assisted by John Africa was repeatedly denied. While, meanwhile,
in a ciry hall courtroom just four floors directly above, a
man charged with murder sits with his lawyer and his father, who
just happens to be a Philadelphia policeman. The man, white, was
charged with beating a black man to death ....

"But isn't justice blind, equal in its application? Does it matter
whether a white man is charged with killing a black man or a black
man is charged with killing a white man? As for justice, when the
prosecutor represents the Commonwealth, the judge represents the
Commonwealth, and the court-appointed lawyer is paid and supported
by the Commonwealth, who follows the wishes of the defendant,
the man charged with the crime? If the court-appointed
lawyer ignores or goes against the wishes of the man he's charged
with representing, whose wishes does he follow?

"I am innocent of these charges that I have been charged of and
convicted of, and despite the connivance of Sabo, McGill, and
Jackson to deny me my so-called rights to represent myself, to
assistance of my choice, to personally select a jury who's totally of
my peers, to cross-examine witnesses, and to make both the opening
and closing arguments, I am still innocent of these charges.

"According to your so-called law, I do not have to prove my innocence.
But, in fact, I did have to do so by disproving the Com-
monwealth's case. I am innocent despite what you twelve people
think and the truth shall set me free.

"This jury is not composed of my peers, for those closest to my
life experiences were intentionally and systematically excluded, peremptorily
excused. Only those prosecution prone, some who began
with a fixed opinion of guilt, some related to city police, mostly
white, mostly male, remain. May they one day be so fairly judged.

"Long live John Africa!! For his assistance in this fight for my life!
It is John Africa who has strengthened me, aided me, and guided
me, and loved me! Could John Africa have done worse than this
worthless sellout and shyster who promised much and delivered
nothing? Could he have done worse than Tony Jackson?

"On December ninth, the police attempted to execute me in the
street. This trial is a result of their failure to do so. Just as police
tried to kill my brothers and sisters of the family Africa on August
the eighth, 1978. They failed, and hence, a so-called trial was conducted
to complete the execution. But long live John Africa for
our continued survival.

"This decision today proves neither my guilt nor my innocence. It
proves merely that the system is finished. Babylon is falling!! Long
live MOVE!! Long live John Africa!"


The moment McGill hungered for had arrived. It would have
been reasonable for him to expect Mumia to testify during the prior
guilt phase, proclaiming his innocence then-but he had refused in
protest over the unfairness of the trial. McGill's image of Mumia as
an arrogant and highly intelligent man warranted the expectation that
he would testify. The opportunity to cross-examine his prey was
merely deferred, it turned out, as McGill asked, "May I proceed, Your
Honor?" Judge Sabo swept the air with his right hand, as if he were
welcoming someone into a room. "Go ahead," he said.

Jackson noticed in McGill's hands a collection of newspaper articles.
He had seen McGill attempt on several occasions during the
trial, and even at the bail hearing, to use old publications containing
statements attributed to Mumia when he was a teenage member of
the Black Panther Party. Jackson was astute enough to know that
injecting black nationalist political discourse into the penalty phase
would be disastrous. He immediately asked Judge Sabo for a sidebar
conference.

He argued that McGill's use of the publications would "prejudice
the minds and inflame the jury." McGill knew that Jackson was
right, and that was the point of it. He wanted-he needed-the jury
to be inflamed; anything less and the jury might not have the gumption
to authorize the Commonwealth of Pennsylvania to kill the
defendant. McGill wisely refrained from speaking with such bluntness.
Instead, he employed one of the favorite arguments used by
prosecutors-the opening-the-door argument. When a defendant
introduces evidence to make a point, he "opens the door" to the
prosecutor to deliver otherwise inadmissible evidence to rebut the defendant's
point. Thus, McGill argued, Mumia brought it on himself
by making a speech espousing his views of the trial and the criminal
justice system. The prosecution, he argued, was now entitled to bring
in evidence of his political views and affiliations.

McGill's opening-the-door argument was manifestly pretextual, as
he had long wanted to confront Mumia with his past affiliation with the
Black Panther Party. Mumia's political affiliations well over a decade
earlier had nothing to do with his expression of outrage over the jury's
verdict and his disgust with the way Judge Sabo handled the trial. To his
credit, Judge Sabo kept McGill at bay throughout the trial when it came
to injecting hard evidence of Mumia's radical political leanings into
the trial. But now it was different. Mumia had spoken, and spoken
harshly. It was only fair, Judge Sabo reasoned, to give the prosecutor
some latitude.

Mumia signaled immediately that he would not be a cooperative
witness. McGill first asked Mumia to repeat a quotation from John
Africa contained in his statement. Seated at the defense table, Mumia
refused, telling McGill to get it from the stenographer. McGill didn't
push the point. He understood well the trial lawyer's delicate power
over a witness, and how easily that power can be lost.

A good trial lawyer knows not to get entangled with a witness. It
is, Gerry Spence once taught me, like fighting a gorilla in a cage. If
you get inside the cage, you have relinquished the source of your
power. It is best to stay ourside the cage, thus keeping the gorilla
neutralized, while you poke at him with a stick. A good trial lawyer
pokes at the witness with pointed questions, and the witness is stuck
inside the witness box constrained by the rules of court, which only
allow the lawyer to ask questions. The more the lawyer pokes with
his metaphorical stick, the angrier the witness gets; and soon, like the
enraged gorilla, the witness begins to unravel, rattling the invisible
cage. The jurors don't see the invisible stick and the invisible cage,
only the unraveling witness, and conclude that the trial lawyer has
done his job.

It was Mumia's job not to get flustered, to maintain the aplomb
that characterized his other heated exchanges in the trial.

"Let me try something else, then. What is the reason you did not
stand when Judge Sabo came into the courtroom?" McGill asked,
poking through the cage.

Mumia reacted just as McGill had hoped. "Because Judge Sabo deserves
no honor from me or anyone else in this courtroom." Mumia
then slid his chair back and stood up, the better to underscore his point.
"Because he is an executioner. Because he is a hangman. That's why."

"You are not an executioner?" McGill asked.

"No. Are you?" Mumia replied sharply, sitting back down.

McGill didn't take the bait. Hostile witnesses try to induce the
trial lawyer to climb into the cage by lobbing their own questions at
the lawyer. Answer the question and the trial lawyer risks getting inside.
McGill wisely moved on to the next question.

In fact, McGill moved quickly into the heart of his examination.
He was using a January 4, 1970, newspaper article in the Philadelphia
Inquirer containing excerpts of an interview with a precocious teenager
named Wesley Cook, Mumia's name given at birth. "Mr. Jamal, let
me ask you if you can recall saying something some time ago and
perhaps it might ring a bell as to whether or not you are an executioner
or endorse such actions." McGill lifted the newspaper closer to eye
level and he began to read. " 'Black brothers and sisters, and organizations,
which wouldn't commit themselves before are relating to us
black people that they are facing-we are facing the reality that the
Black Panther Party has been facing, which is .. .' " McGill paused,
took a step toward the jurors and brushed his eyes across the panel,
and then enunciated very slowly. "Now, listen to this quote, you've
often been quoted saying this: 'Political power grows out of the barrel
of a gun.' Do you remember saying that, sir?"

McGill had been insinuating that Officer Faulkner was killed because
of ideology from the moment the trial began. It was the core
thesis in his good-versus-evil narrative, which he suggested in his opening
statement, telling the jury that it would see firsthand that the
killing was more than just the act of a no-good street predator. It was
a revolutionary act, an assault upon "the system," by a black revolutionary
who had lost his grounding in the real world when he embraced
the system-hating MOVE organization. It was, in short, a
political crime. Mumia's courtroom conduct suggested it; Mumia's
teenage statement confirmed it.

Mumia explained that the quotation was from Mao Tse-tung, the
Chinese communist leader. "It's very clear that political power grows
out of the barrel of a gun," Mumia expounded, "or else America
wouldn't be here today." He said nothing of the fact that it was a
favorite slogan among Black Panther Party members in the '60s. Nor
did he explain that, as a member of the Black Panther Party, he was
required to absorb the essential teachings of Mao contained in the
famous Little Red Book-a slim volume which was popular among
college kids. In fact, the Panthers sold Mao's Little Red Book on college
campuses nationwide to raise money for the organization. As a teenager,
Mumia was only regurgitating a slogan that suited the times.

Many of Mumia's supporters were pleased that the trial had taken
this turn; to them, this was terrific testimony simply because Mumia
was espousing "political truths." To the journalists who had been sit-
ting through the trial, mystified by much of Mumia's behavior, it was
disastrous. These journalists, better suited to assesshow middle America
felt about radical political discourse, viewed the situation correctly;
the jury was not impressed.

"It is America who has seized political power from the Indian
race, not by God, not by Christianity, not by goodness, but by the
barrel of a gun," Mumia continued, speaking confidently, somewhat
like a debater in front of a university crowd. What was Mumia saying,
that America was a fraud? Was he saying that killing is justified? This
was a political perspective that the jurors didn't encounter on network
television. It was an outlook, a self-referential critique, that was not
part of the American landscape, and therefore could not at that moment
take root in the jurors' consciousness. It only caused them to
see red.

But Mumia was not speaking to persuade. If he was, he was playing
the fool; and Mumia may be many things, but he's no fool. He
was rebelling. He knew that the sentencing hearing was not about
capturing the truth, about elucidating the arc of his own political
awareness, about shining a light on who he really was. But in his
rebellion he lost sight of how McGill was coaxing him into projecting
a caricature onto a canvas that salt-of-the-earth Americans have no
ability to critique themselves.

"Do you believe that your actions as well as your philosophy are
consistent with the quote, 'Political power grows out of the barrel of
a gun'?" McGill continued.

"I believe that America has proven that quote to be true."

"Do you recall saying that: 'The Panther Party is an uncompromising
party, it faces reality'?"

"Yes. Why don't you let me look at the article so I can look at it
in its full context, as long as you're quoting," Mumia countered.

McGill quickly agreed-he could hardly contain his delight, in
fact. The article talked of the Black Panther Party's antipathy toward
police who, the Panthers believed, engaged in murders as a "calculated
design of genocide and a national plot to destroy the Party leadership,"
as evidenced by "a bloody two-year history of police raids and shoot-
outs." It also noted that Mumia was committed to "helping Black
Americans gain a sense of dignity" and that the Philadelphia chapter
was "more socially activist than militant." But Mumia's teenage commitment
to social justice for Philadelphia's impoverished blacks was
obscured by the article's frequent references to guns. "All Panthers
must learn to operate service weapons correctly," the article stated.
This surely jolted the jurors, perhaps caused them to jettison everything
else.

When Mumia finished reading the article, McGill again began
poking the stick inside the cage, asking a series of questions about his
courtroom behavior. The juxtaposition was not accidental, of course.
McGill wanted to demonstrate that Mumia's courtroom behavior was
nothing short of a display of what the article described: an angry black
nationalist who sees political change coming only through armed insurrection.
Mumia resisted the questioning, trying to wrest back control
by throwing out questions of his own.

"Are you going to just keep on asking questions like you did to
Judge Sabo, and constantly playing with words?" McGill asked. "Did
you not continually question Judge Sabo and disagree with his rulings
continually after he ordered you again and again and again and again?"
McGill kept the questions coming, bringing up as well Mumia's outbursts
at Judge Ribner and Justice McDermott.

Satisfied that the jury now had before it the true measure of the
man, McGill announced that the prosecution rested.

***

McGill's use of the article was entirely unfair. The reference to the
saying, "Political power grows out of the barrel of a gun," occurred
in a paragraph within the news article that reads:

"Since the murders, " says Wesley Cook, Chapter Communications
Secretary, "Black brothers and sisters and organizations which
wouldn't commit themselves before are relating to us. Black people
are facing the reality that the Black Panther Party has been facing:
Political power grows out of the barrel of a gun. "

The jury never heard the phrase "since the murders," which preceded
the quotation that McGill found so inflammatory. What was
Mumia referring to?

On December 4, 1969, shortly after 4:00 A.M., fourteen Chicago
police officers, under orders from Cook County state's attorney Edward
V. Hanrahan, burst into the home of Fred Hampton, the leader
of the Chicago chapter of the Black Panther Party. Gunfire erupted.
When it was all over, Hampton lay dead in his bed; Panther member
Mark Clark was also killed. Other Panther members survived their
gunshot wounds. The newspaper article McGill used in the 1982 trial
reported on an interview with Wesley Cook that took place a month
after this Chicago shooting Qanuary 4, 1970). The phrase "since the
murders" was a reference to the Hampton and Clark killings. Mumia's
observation that "political power grows out of the barrel of a gun"
was not a reflection of his attitude toward guns and violence, but an
observation about the government's manifest willingness to use violence
against the Panthers. The Hampton and Clark killings revealed the
truth of Mao's maxim, a blatant illustration of the government's use
of guns to exert political power. Twelve years later, McGill plucked
out the Mao quotation, stripped it from its context, and unfairly attributed
it to Mumia as a reflection of his personal penchant for violence.
Unfortunately, Mumia did nothing in his repartee with McGill
to project a more appealing image to the nearly all-white jury.

***

Although Jackson had called several prominent citizens as witnesses
six months earlier at a bail hearing, he had no one lined up to testify
now. When the debacle was over and Mumia took his seat, Jackson
could think of nothing else to do but formally put an end to the
penalty phase proceedings. He said softly, "The defense would rest,
Your Honor." All that was left were the closing arguments for and
against imposing death.

Jackson spoke first, and this time, instead of platitudes, he offered
a mechanical analysis of the death penalty statute. Under Pennsylvania
law the jury is required to impose death if certain specified aggravating
factors outweigh whatever mitigating factors the defense can point to.
One of the aggravating factors that a jury may find to justify a death
verdict under the Pennsylvania statute is the fact that the victim was
a peace officer. With no genuine mitigation evidence introduced into
the penalty phase, Jackson seized upon the language of the statute. It
said "peace officer" not police officer, he argued. Had the state legislature
wanted to include "police officers" within the ambit of the death
provision, it would have used that tide in the statute. "I'll bring that
to your attention," Jackson lamely declared, "as a matter I think you
need to consider." Jackson's plea for a life verdict descended to the
level of arguing that Officer Faulkner was not a "peace" officer within
the literal terms of the statute. The jury could only react with one
emotion: disgust.

In another blunder, Jackson unwittingly suggested to the jury that
a life sentence for Mumia might not in actuality be a full life term
behind bars. "Some cases" exist, Jackson pointed out, where a person
is given a life sentence and he is "out in a few years." This outrageous
remark by a lawyer who was supposed to be giving jurors reasons to
spare Mumia's life actually triggered the life-preservation impulse that
would justify killing him-after all, would the jury fear that Mumia
might someday gain his freedom and kill again?

Jackson also argued that the death penalty has had a tortured
history in the United States, and in Pennsylvania. He tried to convince
the jurors that imposing death is wrong. He should have
known that this was a Sisyphian task, as these jurors had been
death-qualified through their acknowledgment that they did not
have conscientious scruples against imposing the death penalty. Jackson
succeeded only in revealing that he had nothing meaningful to
say on Mumia's behalf. He never attempted to close the political
and cultural distance between the jury and his client, perhaps because
bridging the divide was simply impossible. It was true that the
race-conscious jury selection, coupled with the Witherspooning process,
created a huge chasm between the two.

It was a sorry display, but it wasn't yet over.

McGill asked for a five-minute break before he began his closing.
He quickly scribbled notes on a legal pad, obviously jotting down
points arising from the morning's events.

McGill began by telling the jurors that they had "the opportunity
to actually hear this defendant ... you had the opportunity to see the
person, the type of person he is, and how he is." He asked the jury
to think about that when "reflecting back upon the incident, the
events at the time." McGill sensed that he now had permission from
the jury to elevate the venom in his delivery, saying, "What we're
dealing with now and who we're dealing with now is a convicted
murderer." McGill pointed to Mumia: "This man over here is a
killer." He let a beat of silence reinforce his anger while giving him
an opportunity to connect more forcefully through eye contact with
each of the jurors. He then told the jury, in the starkest terms, what
their guilty verdict meant. "You're looking at and have heard a killer.
That's who we're dealing with."

McGill retreated from the railing a few steps-itself a form of
communication. He put out both arms, like a human scale, and explained
that they, the jurors, had to weigh the aggravating factors
against the mitigating factors. "If the aggravating outweighs the mitigating,
then the law requires the death penalty." This balancing of
the aggravating factors (the factors that merited imposition of death)
against mitigating factors (factors supporting a life imprisonment sentence)
was the essential task for the jury. The argument was crucial
to McGill. He couldn't bank on the jury imposing the death penalty
merely out of outrage or fear. The human capacity of empathy for
another human being is too resilient to be fully extinguished by negative
emotions. McGill wanted the jury to see its role in a banal way.
His strategy was to emphasize the mechanical nature of the sentencing
decision, and thus eviscerate its subtle, individualized, and morally
weighty aspects. The effect of this mode of argumentation was to blunt
the jury's sensitivity to what the United States Supreme Court characterized
as its "truly awesome responsibility." McGill invoked the
notion of legal duty, not to emphasize the importance of legal duty
in its own right but as a reassuring escape from the anxiety of moral
choice. In effect, he was telling the jurors that they were technicians
in a larger legal apparatus from which Mumia would receive "appeal
after appeal after appeal"; that the painfully difficult choice about life
or death is, in reality, no choice at all, for the law makes the choice
for them.

McGill understood instinctively what the Capital Jury Project uncovered
years later through research: jurors seek out ways to put the
decision-making onus on the law.

"Law and order. Ladies and gentlemen, this is what this trial is
all about, more than any other trial I have ever seen; and certainly
more than any other I have been involved in." McGill was moving
closer to the central motivation behind the need to execute Mumia.
"Because you yourself have seen, you have heard things that are going
on, and you have heard testimony of things that are going on as to
what is lawful and what is not lawful, and actions, arrogance, reactions
against the law. Law and order. So, ladies and gentlemen, at least ask
yourselves the question, are we going to live in a society with law and
order, and are we going to enforce the laws consistent with the intention
of law and order, or are we going to decide our own rules and
then act accordingly? That's really what we are talking about .... Because
once we have the opportunity presented that anybody can kill
a cop and it doesn't matter, you may as well forget about law and
order, just throw it right out."

Effective trial lawyers are distrustful of abstractions. Powerful,
readily understandable images are far more effective. McGill gave the
jury a short vignette to underscore his law-and-order message. "This
morning, before I left-actually, my mother actually called me up and
we were talking about the case a little bit and before I went down
here, she said this to me. She simply said, you know, and I won't go
into some of the other things that she said about this case, but she
specifically said this, 'Joe, if you can come up'-and this is a lady
who is in her seventies-she said, 'Joe, if you can come up and kill a
police officer, who is going to protect me?' "

"Who is going to protect me?" McGill's vignette revealed that his
argument about law and order was really a device to tap into fear --
the fear, cultivated by media obsession with violent crime, that lawabiding
folks are in constant danger. Fear is the wellspring of law and
order; and McGill needed to talk about fear, because anger, the emotion
that paves the way for a death verdict, is a secondary emotion.
Anger sustains itself within the human heart against the competing
impulses to preserve life, to sanctify life, by the more primary emotion-
fear. McGill needed to use fear to nourish the anger that would
ultimately compel the jury to demand death.

"That's what she said," McGill continued. "But that, ladies and
gentlemen, is really what it is all about. Because that is what our
system and the kind of constant battleground that we have during the
course of every day in this city. The only symbol of people that are
attempting to enforce the law, to control and protect people, are police
officers. And if you can at will kill police, ladies and gentlemen, you
then make that extra step towards the area which is without law enforcement,
which is an outright jungle. We are one step from the
jungle without the opportunity of individuals to enforce the law."

Mumia repudiated social order, McGill argued. "Order, ladies and
gentlemen, that you may not have seen; order that this defendant has
decided is not good enough for him." McGill could now explicitly
state what he had long insinuated: "This is not something that happened
overnight." The capacity to execute a police officer had brewed
within Mumia since he was in his early teens. That, McGill argued,
was the true significance of Mumia's endorsement of the Mao quote.

The rhetorical noose was now securely fastened around Mumia's
neck. "The horror, the horror," Kurtz says at the end of]oseph Conrad's
Heart of Darkness. Western colonialists conquered the jungles of
Mrica and Asia, and in so doing, propagated a cultural image of the
jungle as a place of chaos, darkness, and horror. McGill's closing argument
reached its apex with the imagery of an "outright jungle," and
thereby tapped into something deep in the collective psyche of the
largely white, blue-collar jury. Mumia was to be feared, and thus
hated, for his murderous act, which was the fruition of his revolutionary
politics, which, in turn, threatened the encroachment of the
jungle. To stave off chaos, darkness, and horror, McGill was telling
his jury-and it was never more his jury than at that moment-they
must eradicate the jungle by executing this man. But by voting for
his execution, McGill reminded the jurors, "you are not asked to kill
anybody .... You are asked to follow the law. The same law that I
keep on throwing at you, saying those words, law and order." The
jury was to be the expression of law and order no less than Mumia
was the expression of the jungle. McGill had succeeded in pitting the
jury against Mumia, placing the two in irreconcilable conflict. The
jury could no longer be the detached dispenser of justice. The jury
would be the preserver of law and order. There could be no doubt
what the jury would do.

***

The jury left the courtroom to begin its life-or-death deliberations
at 12:27 P.M. after receiving the legal instructions regarding the weighing
of aggravators and mitigators. Less than four hours later, at 4:20
P.M., the jury announced its verdict. The jury had deliberated for less
time on the issue of whether Mumia should live or die than it did on
the issue of his guilt.

One juror had griped that they should hurry up with the decision
because he still hoped to attend a barbecue event. No one was happy
sacrificing even a portion of their Fourth of July weekend on such a
grim task. [i]

Before the jury was brought into the courtroom to announce its
decision, the clerk telephoned for more sheriff's deputies. The courtroom
was soon ringed by twenty of them. Mumia glowered at the
jurors as they shuffled toward their designated and familiar places in
the jury box. The court clerk ceremoniously posed the query to the
jury foreman: "Having found the defendant, Mumia Abu-Jamal, guilty
of murder in the first degree, what is your verdict as to penalty?" The
jurors sat motionless and without expression. The jury foreman's answer
was short: "Death."

***

Philadelphia Inquirer reporter Marc Kaufman wondered aloud
whether Mumia had a death wish. In an article entitled, "Did Abu-
Jamal Want the Jury to Find Him Guilry?" Kaufman wrote that "Abu-
Jamal conducted his unsuccessful defense with what appeared to be
an intense and perplexing will to offend and even the desire to fail."
Kaufman recounted Mumia's frequent verbal jousting with Judge
Sabo; but more dismaying was Mumia's attack upon the jury itself
and the justice system overall. Why, Kaufman asks, did Mumia adopt
this "strategy of John Mrica"? It puzzled many of Mumia's friends
and admirers. But one thing seemed clear to Kaufman: "The strategy
[of John Mrica] helped convict him and, incidentally, communicated
a largely negative and one-dimensional picture of a man believed by
many to be an exceptional individual."

Kaufman reported that "some friends and observers" believed that
Mumia was "committing 'an indirect suicide.' " Others speculated
that "the pressures and disappointments of his life had grown so great
that he literally lost touch with reality." And then there was McGill's
theory, which would revive itself over a decade later when a new legal
challenge was brought against the conviction and death sentence. Mc-
Gill told reporters that Mumia's attack upon the judge, the jury, and
the justice system as a whole was a ploy to derail the proceedings in
order that a successful appeal could someday be launched. As Kaufman
put it: "Injecting the kind of chaos that MOVE can bring to a court,
this reasoning goes, helps create an environment in which judicial
error is more likely, and so the verdict would be overturned on appeal."

To McGill and others in the district attorney's office, there was a
method to all of Mumia's courtroom madness.

_______________

Notes:

i. A juror who had apparently relocated to Ohio disclosed this fact to a local ABC reporter.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:25 am

PART 1 OF 2

TWO: RECONFIGURING GOOD VERSUS EVIL

This court is not going to be intimidated by mob pressure.
Understand that. If the day ever comes that the mob can
control the courts, then, indeed, we are in dire circumstances.
I will not tolerate it. No threats, nothing is going to intimidate
this court. No mob pressure is going to intimidate this court.

-- JUDGE SABO, JULY 18, 1995, TO COURTROOM SPECTATORS

I've never seen a Jim Crow court until today. The whole atmosphere
of this court is Mississippi 1955, and that's what's sad
about it.

-- CORNEL WEST, COMMENTING ON JUDGE SABO'S COURT


13. A NEW TEAM, A NEW PORTRAIT, AND AN OLD JUDGE

''I'm shook up," a juror told a local reporter. "When you have
to condemn a man to death, it's rough." Mumia's adamantine
behavior, however, apparently made a rough job a bit easier. Another
juror pointed to Mumia's in-court behavior to mitigate the severity of
his judgment: "His behavior made it easier to believe he could be a
killer." [1] And yet another juror was even more blunt: "The man is
intelligent, but he was acting stupid." [2]

The death verdict against Mumia was the twentieth in Philadelphia
alone since Pennsylvania reinstated the death penalty in 1978. [i] Mumia
happened to be the third Philadelphian hit with a death verdict within
a ten-day period. It was McGill's sixth successful death penalty trial, the
largest number in Pennsylvania. Even at this early stage in Pennsylvania's
implementation of the death penalty, legal observers perceived a
thirst for death in the Philadelphia district attorney's office.

Today, the reputation of the Philadelphia district attorney's office
is unmatched among capital punishment jurisdictions. District Attorney
Lynne Abraham was dubbed in a 1995 New York Times Magazine
article as "the deadliest DA" [3] because her office seeks the death penalty
in 85 percent of all homicide cases-a staggering percentage. Philadelphia
death verdicts account for more than half of the state's death
row population, now at 223, even though it makes up only 14 percent
of the state's total population. The death penalty is meted out eleven
times more frequently in Philadelphia than in Pittsburgh, even though
the populations of the two urban locales are roughly the same and the
disparity in their murder rates comes nowhere close to explaining the
death verdict disparity. Nationwide, the city of Philadelphia has sent
more people to death row than twenty-eight out of the thirty-eight
states with the death penalty.

***

McGill, like Jackson, was emotionally depleted after the death verdict
was announced. He was also enormously satisfied, dispensing
brawny handshakes to the cops and FOP representatives who attended
much of the trial. Heartfelt hugs were reserved for Maureen and the
Faulkner family members, many of whom harbored concerns that the
jury would not have the courage to mete out a death sentence for a
man who, they grudgingly had to admit, was both intelligent and
charismatic. All of the spectators on the prosecution side of the courtroom
had deepened their antipathy toward MOVE over the past several
weeks, disgusted by their vociferous condemnation of "the system"
that was trying to "railroad a brother." To them, the death verdict-a
token of justice for a young police officer and his widow-meant that
they prevailed over the forces of destruction.

Exhausted, McGill spoke briefly with reporters, his fatigue giving
way to the enmity that bubbled beneath the surface: "The citizens in
Philadelphia have just had enough," he declared. "They've had it with
hearing about reasons and excuses for people who have committed
serious, vicious, malicious acts." A profile of McGill appearing in Philadelphia
Magazine applauded his stewardship of the trial, noting that
it had been a sideshow for the hated MOVE organization:

Countless times during the Abu-Jamal trial MOVE members
who were present to lend moral support to the accused attempted
to take over the courtroom. Soon, Abu-Jamal and Faulkner were
practically relegated to the status of sideshow, as MOVE transfOrmed
the tense scene into a guerilla theater confrontation, pitting
their cult against the community. That summer, McGill felt
more like a ringmaster than a prosecutor. Eventually, his name,
too, was added to MOVE's Manson-like death list.


Danny Faulkner's partner, Officer Garry Bell, left the courtroom
more subdued than his colleagues and friends. He was dubious that
the death sentence would ever be carried out. "Danny was shot like a
dog," Bell told the Philadelphia Inquirer. "There was no justice at all
for him. This man will have appeals and appeals, and I really don't
think he'll ever be electrocured." [ii]

***

On March 6, 1989, the Pennsylvania Supreme Court issued its
decision in the appeal of Commonwealth v. Mumia Abu-Jamal. Mumia's
trial had been fair, the Court ruled, and his death sentence was
an appropriate sanction for the cruelty and hideousness of his crime.
Whatever irregularities marred the trial process was not the fault of
the trial judge, but rather, was the by-product of an obstreperous
defendant who refused to sit quietly. The description of the trial contained
in the Court's judicial opinion bore scant resemblance to what
really happened, which is hardly surprising. Rarely does an appellate
court decision bring a trial proceeding to life.

The Pennsylvania Supreme Court, which is the oldest supreme
court in the United States (predating even the United States Supreme
Court), consists of seven justices. It is a court with a proud history of
judicial leadership and scholarly jurists. It is also one of only eleven
state supreme courts that still chooses its justices in partisan elections.
The elected terms are only ten years, which means the justices are
perennially burdened with raising money and avoiding overly controversial
decisions. One retired justice from that court remarked that
"this is the very worst possible method of selecting judges-it doesn't
have a single redeeming grace."

During the 1980s, this proud institution came close to dissolving
amidst torrid accusations of racism, fraud, and Machiavellian maneuvering.
At the center of the controversy was the chief justice on the
court, Robert N. C. Nix, Jr. The son of an esteemed Pennsylvania congressman,
Nix was the first black justice ever to sit on the Pennsylvania
Supreme Court. A fellow jurist, Justice Rolf Larsen, apparently coveting
Nix's position as chief justice, tried to coax Nix into running for the
U.S. Senate, thereby vacating the slot. When Nix refused, Larsen threatened
to expose to the public that Nix is black, which, Larsen believed,
would undermine Nix's chances for reelection in 1981. Here is Nix's recounting
of the conversation, rendered during hearings on the scandal:

After a short discussion of the wisdom of that decision [to run for
Senate}, justice Larsen indicated' "Well, you know that you have
to run for retention next year." I said· "Yes,1was certainly aware
of that fact. He then indicated ... to me, "You must be aware
of the fact that when you ran for election in 1971 many of the
residents of the Commonwealth were not aware of your race, and
that fact could make a difference in a retention election. )) That
was the end of the conversation.


A parade of witnesses was called during the hearings, which corroborated
Nix's accusation that Larsen attempted to coerce Nix's re-
tirement from the bench through race baiting. For example, the
Democratic chairman of Allegheny County, Cyril Wecht, testified that
Larsen had "talked about his plans to expose the fact that Justice Nix
is a 'nigger,' as he put it."

Larsen was caught using the N word on other occasions. One
witness, a law clerk on the Pennsylvania Supreme Court, testified at
the hearing that Larsen made the following remark about the MOVE
Nine trial: "They should put those niggers in a cage and hang them
from the ceiling."

Larsen's behavior grew even more bizarre. A story leaked that Larsen
had used an aide to secure prescription drugs illegally. Incensed,
Larsen lashed out at two of his colleagues on the court, claiming that
they had tried to run him over in a car. On November 1, 1993, Larsen
was indicted by a grand jury that heard from over two hundred witnesses,
including all seven members of the Pennsylvania Supreme
Court, regarding the illegal drug purchases. Larsen ultimately left the
court in disgrace. The scandals prompted the Pennsylvania Senate to
consider disbanding the court and reinstituting a new one.

Mumia's case hit the Pennsylvania Supreme Court docket during
this turbulent period. And things didn't seem quite right with
the court when Mumia's case was decided. Two justices (one being
Larsen) inexplicably didn't participate in the oral argument or in the
decision of the court. During the oral argument, Nix asked pointed
questions of the appellate lawyer with the district attorney's office
concerning McGill's reference in his closing argument that Mumia
would have "appeal, after appeal, after appeal." The court had earlier
reversed a death sentence handled by McGill for invoking precisely
that argument, noting that it impermissibly waters down the weightiness
of the jury's task in deciding between life and death. It was
apparent to many observers of the oral argument that Chief Justice
Nix was going to push for the overturning of Mumia's death sentence.
Without explanation, when the decision was issued fifteen
months later, Nix joined the other two absent colleagues and recused
himself without explanation. An editor for the Philadelphia
Inquirer thought it odd that Nix would raise probing questions
about McGill's conduct and then not participate in the court's decision.

Nix refuses to explain why he did not participate in the appellate
decision on Mumia's case. Facing reelection in 1991 (the decision was
issued in 1989), Nix was apparently caught in a dilemma. He couldn't,
from a political point of view, side with Mumia on the appeal, even
though, by the looks of it, he agreed that Mumia's trial had been
unfair; but, equally true, he couldn't bring himself to join the other
members of the court in whitewashing the trial with an opinion endorsing
Judge Sabo's and McGill's conduct. He apparently reached
for the escape hatch and recused himself. Justice Nix abdicated his
role as a jutist a second time when, almost a decade later, another
appeal to the Pennsylvania Supreme Court was filed on Mumia's behalf.
Because he abruptly opted for early retirement, he did not sit for
that appeal. On top of that, the district attorney at the time of Mumia's
original appeal, Ronald Castille, became a member of the Pennsylvania
Supreme Court. He refused to recuse himself from Mumia's
second appeal to that court, even though his name appeared on the
prosecution briefs submitted in opposition to Mumia's original appeal.

Interestingly, the 1993 grand jury that indicted Justice Larsen issued
the recommendation that, from here on out, "the reason for
recusals should be documented in court records."

Defeated in the Pennsylvania Supreme Court in 1989, Mumia then
asked the United States Supreme Court to review his case. The U.S. Supreme
Court refused. Its refusal to consider one issue in particular remains
especially troubling: McGill's politicization of the penalry phase
hearing through his use of the twelve-year-old newspaper article containing
the Mao quote. Mumia's appellate lawyer argued, as did Jackson,
that this injection of political affiliation into a criminal trial
violated Mumia's First Amendment rights. No one, the argument went,
should be punished, certainly not risk death in a criminal proceeding, in
whole or in part, because of one's political beliefs or organizational affiliations.
Actions, not thoughts, are the relevant criteria.

The Pennsylvania Supreme Court noted that Mumia's former teenage
membership in the Black Panther Parry, "an unpopular political
organization" with a "perceived violent philosophy," demonstrated his
"longstanding disdain for the system." This was, in the sterile terms
suitable for appellate judges, precisely what McGill had argued. The
court held that McGill properly used this alleged aspect of Mumia's
character to argue for imposition of the death penalty. With that ruling,
Commonwealth v. Jamal entered the constellation of legal precedent.

***

David Dawson could never have predicted, and would probably
have been appalled at the thought, that his life would in any way
intersect with Mumia's. He certainly had nothing in common with
Mumia in terms of social outlook or political philosophy. Dawson
liked to call himself Abaddon, meaning "one of Satan's disciples." He
landed on death row after being convicted in Delaware for brutally
murdering a woman during a burglary spree. During the penalty phase
of Dawson's trial, the prosecutor proceeded in much the way McGill
had. He endeavored to link Dawson's criminal rampage to his political
beliefs. The prosecutor sought to introduce evidence that Dawson was
a member of the Aryan Brotherhood, a white racist group, and had
multiple tatoos reflecting his racist and satanic views (including tatoos
and paintings of swastikas). Although Dawson's lawyer objected to
this evidence, the trial judge permitted the prosecution to proceed
with its politicized attack, but excluded all of the swastika-related evidence.
Dawson received a death sentence.

Dawson appealed to the Delaware Supreme Court, arguing that
the use of his Aryan Brotherhood affiliation in the penalty phase violated
his First Amendment rights. The Delaware Supreme Court,
either because it was impressed by the Pennsylvania Supreme Court's
analysis or simply too lazy to engage in an analysis of its own, adopted
verbatim the reasoning contained in the published decision of Commonwealth
v. Jamal. Right-winger David Dawson and left-winger Mumia
Abu-Jamal were joined at the hip in the world of legal precedent.

The two cases weren't linked for long. David Dawson's lawyers
petitioned the United States Supreme Court to take a look at the
issue. The Court agreed to do so. Mumia's earlier certiorari request,
raising the same issue, had been rejected by the Court. In 1992, the
United States Supreme Court ruled that the Delaware high court was
wrong to allow the penalty phase to become politicized in that way.
"Whatever label is given to the evidence presented," the Court explained,
"Dawson's First Amendment rights were violated by the admission
of the Aryan Brotherhood evidence ... because the evidence
proved nothing more than Dawson's abstract beliefs." Dawson v. Delaware
is now a significant precedent in Supreme Court death penalty
jurisprudence.

Mumia had every right to expect equal treatment from the United
States Supreme Court. The Delaware Supreme Court, after all, had
relied exclusively on his case, and the United States Supreme Court
ruled that that court was wrong for doing so. Mumia had a compelling
basis for Supreme Court action, and he asked again that the Court
take his case. The response, however, was terse: "Petitioner's application
for writ of certiorari is denied."

Barely into the new decade, the road was paved for Mumia's execution-
unless his case could be deconstructed to undermine the
reliability of the jury's guilt and penalty phase verdicts.

***

Leonard Weinglass took on Mumia's case in 1992. Several lawyers
were considered for the job, but none had the credentials matching
Len's as a lawyer for leftist causes-an essential criterion for selection.
Len came into prominence as a direct result of a friendship he forged
with Tom Hayden in 1967 in Newark, New Jersey. A leading figure
in the student movement of the '60s through his work with Students
for a Democratic Society (SDS), Hayden was engaged in community
organizing in Newark at the time. After a stint in the air force, Len
returned home (he grew up in nearby Kearney) and set up his smalltown
law practice there, a somewhat unusual career choice for a Yale
Law graduate. It was that friendship that led to his later involvement
in the famous Chicago Seven trial in which Hayden was one of the
defendants. The Chicago Seven trial was Len's launching pad to
countless other left-wing political cases, big and small.

I first met Len in November 1987, while working as a well-paid
young associate at a large San Francisco law firm specializing in labor
and securities litigation. Coming from an uneducated family (I was the
first to graduate high school), I was perhaps entitled to feel deserving of
my success and the road that success put me on. But the money and all
that it promises in the material world didn't seem to fill a vacuum inside
me; the corporate world was not so much a gilded cage as it was a platform
for slow death, an opulent milieu that withered the spirit, which
thrives on genuine human connectedness. I was living a dual life back
then, slaving away for corporate America but secretly squeezing in activities
for various left-wing causes and reading existentialist and postmodern
philosophy (I read virtually all of Nietzsche's books on company
time). I hungered for human connectedness.

One day, a young activist named Karya Komisaruk, who I knew
slightly, threw out the idea that I represent her in a federal criminal
trial. An MBA graduate out of D.C. Berkeley (I had gone there as an
undergraduate and met her once during that period of my life), Kayta
was an impassioned antinuclear activist under federal indictment for
sabotage and destruction of government properry. She explained to
me that she had entered onto Vandenberg Air Force Base, located
north of Santa Barbara, California, and taken a hammer to a sophisticated
computer system that was an integral part of a system called
Navstar. Navstar was part of Reagan's first-strike nuclear defense policy,
premised on the lunatic theory that a missile defense system could
be designed, with the aid of computers, to intercept incoming enemy
nuclear warheads. Protected by this computer-driven umbrella of missiles
attacking enemy missiles, our military and political leaders salivated
over the prospect of being able to launch a nuclear attack against
the "evil empire" with virtual impunity.

The madness of it all was too much for Karya. She decided to
take matters into her own hands and destroy the computer system
herself, which she did in the early morning hours of June 2, 1987,
with nothing more than a hammer and a can of spray paint (the paint
was used to write in bold lettering "International Law," "U.N. Charter,"
and other words to capture the legal justification for her actions,
which she hoped would be considered by a jury). She then held a
press conference in San Francisco, telling the world what she had
done, to the deep embarrassment of the United States government.
Her action was part of a nonviolent tradition in the antinuclear movement
made famous by Catholic theologians Daniel and Philip Berrigan-
a tradition known as the plowshares action, inspired by Isaiah
2:4: "And they shall beat their swords into plowshares, and their spears
into pruning hooks; nation shall not lift up swords against nation,
neither shall they learn war any more."

I told Katya that I was not equipped to handle a criminal trial but
expressed my amazement at her gumption. I had never even seen a reallife
trial before, let alone participated in one as a lawyer. I was a wellpaid,
sit-behind-the-desk lawyer, which suited my Ivy League legal
training. I didn't have the foggiest notion how to be a "real" lawyer,
which is what she needed. Law schools, especially the most esteemed
ones, don't teach their students how to be courtroom warriors. Katya
wisely reached out for a "real" lawyer-Len Weinglass. I didn't read
many books about law as a kid, but I remembered reading a book about
the Chicago Seven trial. Even as a kid I more readily identified with Len
than with the more voluble William Kunstler, the other lawyer in the
trial. When I learned Len Weinglass agreed to handle Katya's case, I immediately
sought permission from the powers that be at the firm
(begged is probably more accurate) to let me assist him in the trial.

I was the "law person" at the defense table, which meant that I
was responsible for preparing legal motions and researching legal issues.
Mostly, however, I watched Len do his work as a courtroom
advocate, mesmerized and enchanted. Here was a lawyer who actually
spoke words that evoked feelings and painted mental pictures; a lawyer
who, unlike the stuffed shirts at my law firm, gave of himself in a
spirit of generosity within the austere environment of a courtroom.
Watching Len, I realized that he used the trial process to share information
and to share important truths about the human conditionsharing,
not proselytizing or lecturing pedantically.

Well, that was the beginning of the end of my days as a corporate
litigator. When I first met Len I was still grieving over the loss of my
mother, who had died three weeks earlier of cancer. In hindsight, it's
clear to me now that I was open for any escape from my sorrow, and
working with Len provided it. Watching him do his magic, I decided
to abandon my plans of eventually entering the slow-paced bucolic
world of academia, and vowed to become a trial lawyer like him. Nine
months later, I moved from San Francisco to New York with nothing
more than a backpack and a guitar. It was as if my mother's death
was her gift to me-the impetus for me to break free and take Robert
Frost's road less traveled.

For seven months, I slept on the living room floor of Len's
modest-sized Manhattan loft, earning a pittance of what I had as a
corporate lawyer, bur thrilled nonetheless. Len and I worked together
for several years, as I soaked in how to be a trial lawyer. They were
among the best years of my life. One evening, tucked away in sleeping
bags under the stars at Len's Catskills hideaway, Len recounted an
experience he had as a young lawyer that crystallizes his approach to
advocacy before a jury.

After finishing one of his first jury trials, Len went back to the
trial judge's chambers, having been summoned there.

"Mr. Weinglass, where did you go to law school?" the judge inquired.

"Yale, Your Honor."

"Where are you parents from?"

"Rumania," Len answered, befuddled by the judge's curiosity.

"Well, next time, young man, a little less Yale and a little more
Rumania."

It was only natural that Len would recruit me to work with him
on Mumia's case. Two other lawyers officially came onto the team in
1994 as active participants: Jonathan Piper, a closet leftist working as
an associate in a big corporate firm in Chicago, and Rachel Wolkenstein,
a never-in-the-closet leftist with the Partisan Defense Committee,
an organization founded upon the Marxist ideology of Leon
Trotsky. Another lawyer, Steve Hawkins, experienced in capital litigation
through his work at the NAACP Legal Defense Fund, Inc.,
helped out sporadically as a consultant.

Nineteen ninety-four was a crucial year, because that is when I
began drafting the petition for a new trial pursuant to Pennsylvania's
Post-Conviction Relief Act (PCRA), the statute authorizing inmates
to challenge their convictions even after their original appeals have
been exhausted. Jon helped considerably in beefing up the nearly two
dozen separate constitutional claims we were intending to raise. Meanwhile,
Len and Rachel stoked up the political movement, which blossomed
at around this time. Rallies for Mumia were regular events
throughout the United States (many on college campuses), and in
France, Germany, Denmark, Holland, and Italy. For example, in
1993, two thousand protesters took to the street in front of the U.S.
Cultural Institute in Berlin. T-shirts, bumper stickers, mouse pads,
buttons, posters-all bearing Mumia's internationally recognized face
appeared everywhere. I couldn't go on vacation without seeing "Free
Mumia" slogans. Fund-raisers were commonplace as well, and they
went beyond those sponsored or endorsed by celebrities such as Ed
Asner, Ossie Davis, Mike Farrell, Danny Glover, Alice Walker, and
others. Nine San Francisco high schools in the spring of 1994, for
instance, held a ten-kilometer race to raise money for us. There existed
at least twenty national and international groups devoted to supporting
our efforts to secure a new trial.

I was virtually oblivious to it all at the time. I hovered over the
trial transcripts and perused the massive quantity of legal precedent
like a scientist in a laboratory. I felt that all of my legal training and
my experiences as a lawyer were in preparation for this case. Freeing
Mumia was not a political cause to me; it was a personal mission.

Len, who admired Clarence Darrow, felt likewise. Darrow had
ended his illustrious career with a magnificent plea against the death
penalty in the famous 1924 case of Leopold and Loeb (in which two
intellectually gifted teenagers, in seeking to commit the "perfect
crime," kidnapped for ransom and then murdered the fourteen-yearold
son of a prominent Chicago businessman). I sensed that Len regarded
Mumia's case to be his Leopold and Loeb moment-a fitting
capstone to his own devotion to the legal profession. In many ways,
my devotion to this case is also my gift to Len.

After years of investigation and careful analysis of the trial transcripts
and the voluminous police reports, we finished putting together
our PCRA petition in late spring of 1995. When we filed it on June
5, it felt to me as though we were launching a rocket into space,
nervously wondering whether it would take a nose-dive into the ocean.

***

At the time we had decided upon the June 5 filing date, in late
May, Governor Thomas Ridge had not yet signed a death warrant. In
fact, even though Mumia's original appeal to the Pennsylvania Supreme
Court had been decided in 1989, no death warrant had ever
been issued against him, and we were confident that it would stay
that way while we litigated the PCRA petition. Len wrote to Governor
Ridge in April informing him of our intention to file the PCRA. The
correspondence was not a courtesy communique-in death penalty
litigation, like any serious litigation, nothing is done withour some
tactical judgment undergirding the decision. We wanted to put the
governor on notice that Mumia fully intended to take advantage of
the rights afforded him under the PCRA. We felt that this notification
would foreclose the governor from issuing a death warrant before the
PCRA petition was litigated, lest he appear to be overly bloodthirsty.
Len's letter didn't tell the governor when we were filing the PCRA
petition, because we had not yet decided on a date.

The situation on June 5 was not, however, as we had expected it
to be. On June 1, four days before our intended filing date, the governor
signed a warrant for Mumia's execution, scheduling it for August
17, 1995. At the time, we didn't know how the governor timed the
signing of the death warrant so perfectly. All that we knew at that
point was that we would have to litigate this case under added pressure,
which is exactly what the governor probably wanted.

Unbeknownst to us, the governor was aware of much of the legal
team's thinking on the case. We learned four months later, after the
PCRA proceedings concluded, that government officials had been intercepting,
reading, and photocopying Mumia's mail, including privileged
correspondence to and from his attorneys, beginning in August
of 1994. Needless to say, the attorney-client correspondence contained
sensitive information about our tactical and strategic assessments of
Mumia's case, as well as our plans to file the PCRA petition. The
revelation came about as a result of a civil rights lawsuit Mumia filed
against prison officials in the United States District Court for the
Western District of Pennsylvania, alleging that his mail was being
illegally tampered with.

Mumia's civil rights suit went to trial before a federal magistrate
in September 1995. Prison officials argued that they justifiably inspected
Mumia's mail to prevent the conducting of a business from
within the prison-the business being the sale of his writings, notably
his first book, Live from Death Row, a collection of essays containing
Mumia's harsh critique of the prison system. The magistrate didn't
quarrel with the rationale; the problem was that the assistant general
counsel for the Department of Corrections, David Horowitz, read
Mumia's privileged legal mail, photocopied the correspondence, and
then, in the words of the magistrate, "forwarded" them to the Office
of General Counsel, "in their entirety and with no redactions."

The magistrate was rightly disturbed by this activity, because, as
he noted, "the Office of General Counsel is an Executive Office and
a source of advice to the Governor of Pennsylvania for, among other
things, questions concerning the signing of death warrants." The magistrate
condemned Horowitz's actions; as a lawyer, he knew better than
to pass on attorney-client communications to the governor's office.
The magistrate ruled: "Here, however, Horowitz, operating entirely
outside of the procedure set forth in [the Department of Corrections
regulations], obtained information relating directly to [Mumia's] state
court collateral appeal, containing his attorney's work product and
advice concerning possible claims, and he did nothing to prevent that
information from being disclosed. In fact, finding himself in possession
of material which had nothing to do with the suspected violation
of Department of Corrections policy, and having much to do with
[Mumia's] state court appeal, he sent that material on to Brian Gottlieb
[deputy counsel at the Office of General Counsel]."

A federal judge adopted the findings of the magistrate on the issue
of impermissible interception of legal mail, ruling that it "interfered
entirely with counsel's ability to represent [Mumia Abu-Jamal] during
his collateral appeal." [4] Among other things, the interception of the
legal mail allowed the governor to issue a preemptive strike against us,
forcing us to litigate our PCRA petition under the heat of a death
warrant.

***

We soon received notification to appear before Judge Sabo on July
24. With that notification, and with the execution date set for August
17, Rachel and Jon panicked and urged that we should request from
the court an earlier date. Steve Hawkins and I, the most experienced
in the area of appellate and postconviction death penalty litigation,
disagreed, arguing that we needed the time to prepare for the hearing
and that we would secure a stay of execution from a court-not necessarily
from Judge Sabo, but from a court somewhere. Rachel and
Jon naively believed that we could march into a Philadelphia court,
pick and choose the legal issues we wanted to present for resolution,
and then demand an adjournment to begin the hearings at some later
date. Steve and I weren't so sanguine.

"But we can't sit and do nothing; there's an execution date," Jon
solemnly reminded us during a meeting in a conference room at my
Greenwich Village office where the defense team usually met.

"It's bullshit," I said. "There won't be an execution on August
seventeenth." The law was crystal clear: a death row inmate is constitutionally
entitled to one habeas corpus challenge of his conviction
and sentence. An execution before resolution of the habeas corpus
petition is, for obvious reasons, a denial of that constitutional right.
"We can start the hearings at the end of the month without putting
Mumia at risk," I pressed. "We should file a stay application, and if
it gets denied, we'll get one from a federal judge."

Len, rarely one to openly offer an opinion on a legal issue, stayed
silent while we debated the issue. He ultimately sided with Rachel
and Jon, figuring that moving up the date to secure a stay of execution
would not have a downside and would satisfy the clamor among some
supporters for us to do something.

The difficult task of putting thought onto paper and the crafting
of legal strategy, back in the mid-'90s, was something that Jon Piper
and I handled, which, speaking for myself, caused me to be more
legalistic in my assessment of how we should proceed. Len played
virtually no role in writing legal briefs, and little in developing the
legal arguments. He reexamined the case with the trained eye of a
seasoned trial lawyer but had little to offer in packaging an appeal.
Because we weren't preparing for a trial but instead pursuing an appeal,
Len spent much of his time as the ambassador for the case, the
public spokesperson. While he traipsed around the world giving
speeches at "Mumia" rallies, providing the "face" to the defense team,
Jon and I wrote the legal briefs that served as the blueprint for the
upcoming courtroom litigation. Rachel, not an actual practicing lawyer
and with little litigation experience, supervised our investigators,
maintained close contact with Mumia and the political support network,
and kept the files in order. The media often characterized us as
a "large, high-powered defense team," which both unnerved me and
made me chuckle. Len relished the description because it enhanced
his stature as the field marshal to a huge bevy of troops in this holy
war to free Mumia. In reality, Jon and I were the intellectual forces
behind the case up to that point, and Jon had to squeeze in time from
his busy corporate law practice to provide his contribution-which
was uniformly excellent in quality. Working with Jon in putting together
the all-important legal briefs for the case, I certainly didn't feel
as though I were part of a "large, high-powered" defense team. Often
I felt the anxiety of working alone on a mammoth task.

I say all this because it seemed to me that Len's "ambassador" role
caused him to be much more sensitive to "the movement" than I was,
and somewhat cavalier in his attention toward the legal issues with
which we had to grapple. In fact, at times I felt he was too sensitive
to how our actions would be judged by the diverse contingent of pro-
Mumia activists, and too willing to be influenced by Rachel's ideo-
logically driven assessment of how we should proceed. Rachel's view
of me, of course, was just the flip side: I was too analytical and too
legalistic. In this instance, Len was understandably concerned that the
Mumia supporters (including MOVE), who took the August 17 date
quite seriously, would not understand the legalistic rationale for acquiescing
to a court appearance on July 24. Len didn't want to tell
throngs of sign-carrying activists that Mumia would not be executed
on August 17 lest it dampen their ardor. We sent a letter requesting
that the court date be advanced. The administrative judge for the
Court of Common Pleas granted our request and moved the date to
July 12.

***

We appeared in Courtroom 253 on the morning ofJuly 12 having
to fight through the crowded corridor. Hundreds of Mumia supporters
jammed onto the second floor, making it almost impossible to get to
the courtroom. A huge crowd-some shouting "Free Mumia" and
carrying banners with the same message, others distributing leftist literature,
and still others looking on with wide-eyed detachment-were
outside in the city hall courtyard, fully exposed to the blistering morning
heat.

When Mumia strode into the packed courtroom, dreadlocks still
flowing but considerably heavier than he was the last time he had
been there, it was as if a rock star had come onto the stage. Mumia
beamed a smile out to the audience and flourished an enthusiastic
clench-fisted salute. This is how Time magazine reported it:

Like rival clans thrust together at gunpoint, the two halves of a
Philadelphia courtroom audience watched each other warily last
week, begrudging good behavior. Then a convict with cascading
dreadlocks entered, and the people to the right of the aisle erupted
"Free Mumia!" they screamed "Mumia, we love you!" Women
blew kisses. Men punched the air with salutes. To the left of the
aisle, the other half watched, silently enraged that the defendant
might get another chance.


The scene would replay itself at every court appearance when Mumia
walked into the courtroom with his bouncy steps: throngs of
cheering fans sitting behind the defense table, disgruntled spectators,
including Maureen and Faulkner family members, sitting silently on
the prosecution side. I frequently tried to sneak glances at the Faulkner
family and at Maureen, who had relocated to sourhern California
shortly after the killing and had not remarried. They always sat impassively
when the supporters cheered, but I know-because they had
said as much-that, while we were energized by the support, a part
of them died a little inside at the sight of the adulation. "It's wearing
me down," Maureen tersely admitted later in the proceedings. I understood
what she meant, the erosion inside from feeling embittered
and powerless. Others seated on the prosecution side were more voluble.
"Have you ever seen anything more disgusting?" one young cop
angrily complained to reporters. "Cheering a cop killer!" "He should
fry!" the anti-Mumia forces in the courtroom were fond of saying in
response to the "Free Mumia" chants. "If Mumia dies, there'll be fire
in the skies," the pro-Mumia folks would yell back.

Several close relatives of the slain officer, including his older
brother, Tom Faulkner, attended the proceedings. Tom always had a
pained expression on his face. He told reporters that he had trouble
sleeping at night, especially because he would catch glimpses of Mumia's
face on posters and placards at various places. I learned one day
during the hearings that things had not gone well for the Faulkner
family in the years following the killing. Danny's other brother, Joseph,
died prematurely in 1985, as did his sister in 1987 and his
mother in 1989. "Danny's mother died of a broken heart," Maureen
said. Tom insisted that the heartbreak from Danny's early violent
death contributed to the deaths of his brother, sister, and mother. I
was struck by the profound sadness in that notion.

Judge Saba, white-haired, small but not frail, and admirably agile
at seventy-four years of age, energetically mounted the bench and
wasted no time in letting everyone know that this was his domain and
that he was not going to tolerate "improper decorum" in his courtroom.
"Before we proceed," Sabo announced, "I just want to remind
everyone that this is a court of law. We are not out on the street.
This court will not tolerate any outbursts. If that should occur, the
sheriffs are instructed to remove that person immediately and they will
not be allowed back into the courtroom. Everything must be proper
and decorum must be maintained." At that moment, a spectator let
out an incoherent shout. The first ejection from the courtroom thus
occurred within seconds of Sabo's warning. There would be many,
many more.

Calm temporarily restored, Len stood to make an argument that
had no realistic chance of succeeding-namely, that Judge Sabo had
to recuse himself because of his bias. The reason for Sabo's presence
in the first place, after all these years, had more to do with efficiency
and custom than anything else. Postconviction appeals (which is what
we were engaged in, sometimes called collateral appeals) are handled
in the first instance by the original trial judge. The theory is that the
original trial judge would have the most familiarity with the case,
thereby putting him in the best position to evaluate legal challenges
to the original trial proceedings. The problem, of course, is that the
original trial judge is not inclined to conclude that he permitted a
defendant to be convicted in an unfair trial.

The heart of our argument for recusal was the undeniable fact that
Mumia and Judge Sabo despised each other, and the judge had made
his antipathy known during the course of the 1982 trial. We claimed
that Judge Sabo could not set his strong feelings aside and fairly adjudicate
the issues we intended to present, most of which dealt with
his conduct and decision making during the trial. On top of that, we
brought forward material indicating Judge Sabo's bias against criminal
defendants generally, including an affidavit from one lawyer, and statements
from six others, that characterized the judge essentially as a
defendant's nightmare. We even presented evidence demonstrating
that Judge Sabo had been reversed on appeal more often than any
other judge in the United States.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:25 am

PART 2 OF 2

In his long argument, Len emphasized the judge's longstanding
connections to law enforcement. "Your Honor has served prior to
becoming a judge for sixteen years as an undersheriff in Philadelphia.
And while you were in that capacity you were a member of the Fraternal
Order of the Police, as 1 understand it, and you were a member
of the Sheriffs' Association. And we don't know what this court's
relationship is to those organizations, but we do know that one of the
organizations that this court has had a long-standing relationship with
is the Fraternal Order of the Police, and that association is now currently,
today, actively involved in a campaign to see to it that Mr.
Jamal is executed." Len was right: the FOP had taken out newspaper
ads, erected a Web site, and sponsored protests and rallies advocating
that "Mumia should fry."

Len concluded with a gratuitous observation, bur resourceful
nonetheless: "I just want to say, 1 don't think Your Honor is aware
of it, but we have two attorneys here from Japan, and two attorneys
here from Germany, who were sent by lawyers' associations in their
home countries because of their concern over this case. 1 myself have
had a call from the consul general of Italy who said the foreign office
in Rome wants a report on these proceedings." Because Len's skills as
a lawyer are more jury-oriented, he has a knack for injecting information
into a proceeding that adds texture to a legal argument. Many
appellate specialists who spend most of their time in law libraries and
in front of computer screens fail to humanize their arguments, preferring
the world of abstractions. That certain notables were in the
audience had nothing to do with the legal issues, of course, and would
not have been mentioned by a pure appellate lawyer; but they had
everything to do with advocating for Mumia in the larger court of
public opinion. It was a resourceful bit of name-dropping.

I, for one, was unaware of whether any notables were in the audience
until Len made the announcement. 1 turned and noticed for
the first time that Cornel West, the Harvard philosophy professor, was
intensely observing the proceedings. 1 was pleased, as 1 believed that
we needed witnesses of Cornel West's stature to document what we
would experience in Sabo's courtroom.

The prosecution's swift response reflected what we were to experience
throughout the litigation: hard-hitting, aggressive, and highly
personal attacks. The prosecution came in with a team of four lawyers,
each with unique skills and each committed to defusing the political
notoriety this case had achieved. (McGill had left the district attorney's
office in 1986 to enter private practice.) Prosecutor Hugh Burns, a
bald, portly, and humorless man who is an appellate specialist in the
district attorney's office, was the first to speak for the prosecution
team. Burns was the prosecution team's most relentless advocate.
What he lacked in charisma and oratorical flair, he made up with a
certain doggedness in his advocacy. I had the impression that Burns
had taken a few beatings in elementary school from playground bullies
and being a lawyer was his revenge. Len had a darker view of Burns,
joking that watching him in action gave new insight into how things
were done in a Nazi Germany courtroom.

Pumped up by the excitement of the proceedings, Burns told
Judge Sabo in an uninterrupted and rapidly delivered speech that our
mission was only to disturb the peace in Philadelphia. "The bottom
line in regard to all of the statements that have been made that are
contradicted by the record, refuted by the record, refuted by appellate
decisions, that the defense attempts to rely on is this: It demonstrates
that the defense in this case does not care about the truth, does not
care about the law, does not care about the record. What it cares
about is making inflammatory statements which are intended to inflame
and feed an atmosphere of public pressure which is directed at
you, which is intended to pressure you." Burns urged the judge to
resist this "campaign of public pressure."

Burns then held up a piece of paper. "I have seen, in addition to
all else I have seen, fliers distributed by I do not know who, in which
they include your fax number, and they say put pressure on this judge,
send him a fax." Burns then directed a question at the judge: "I wonder
if we could ask you for the record, Your Honor, if you have
received any faxes?" Judge Sabo happily obliged, stretching his arms wide the way my
little daughter, Hannah, does when I ask her how much she loves me.
All the while the judge flashed a smile that gave him a certain childlike
charm.

Burns smiled back and swung his head from side to side to signal
his disapproval. "I suspect you have received quite a few. I suggest
that that is all part and parcel of the strategy that's been adopted by
the defense in this case."

It didn't take Judge Sabo long to deny the recusal motion. No
one abides being called biased, prejudiced, and unfair. Judges, it's
important to remember, are no different. And to be called these things
by an out-of-town New York City lawyer with a history of representing
political radicals-well, this was no way to get invited to the Sabos'
for dinner. As soon as the arguments were concluded, he announced
that he had "given serious thought to this, and I see no reason why
this court should recuse itself." He claimed that he had been "fair to
the defendant during his trial and could be fair to him at this time."
The pro-Mumia side of the pews erupted in laughter and snickers, as
sheriff's officers took several steps toward the audience, poised to follow
the commands of the judge. "I will not tolerate these outbursts,"
he warned. He then declared, in self-congratulatory fashion, that "mob
pressure" and "threats" would not influence him as a jurist.

With the recusal motion summarily disposed of, we pushed to
have the stay of execution issued. It was obvious, given the scope of
the challenge we were mounting against the prosecution's case, that
we would never complete the hearing before the designated execution
date. Additionally, Mumia was absolutely entitled to have recourse to
an appeal to the Pennsylvania Supreme Court, and then to the federal
courts thereafter. The process would take several years. Issuing a stay
was pro forma. But we quickly learned firsthand what Mumia has
known for years-that with Judge Sabo, nothing can be taken for
granted.

In response to the motion for a stay of execution, Judge Sabo
wanted to know when we could put on our first witness.

Len began to answer, "We can start that process-"

"Tomorrow? Today? Tomorrow?" Judge Sabo interjected.

"Your Honor, I really do not believe in a death penalty case, we
ought to be proceeding under this kind of pressure," Len protested.

"Well, you have to proceed as promptly as possible. As I said
before, justice delayed is justice denied." Judge Sabo concerned about
justice? The sarcasm in his voice was palpable.

Another prosecutor, Joey Grant, a rough-talking assistant district
attorney who had spent several years as a defense attorney with the
federal public defender office in Philadelphia, took the judge's cue and
pushed to have the proceedings begin in haste. "I think the only
recourse for Your Honor," Grant volunteered, "is to say 'Counselor,
with all due respect, come on, I don't want to hear it, you made some
allegations, now is the time to put up or shut up'-and that's what I
suggest we do here." We likened Grant, a talented prosecutor who I
grew to like, to Christopher Darden, the black prosecutor on the o. J.
Simpson prosecution team, which was fresh in the news at the time
of these proceedings. We suspected, perhaps unfairly, that Grant, an
African-American, was brought in to defuse the incendiary imagery of
a legion of white prosecutors seeking to execute a black man. More
disturbing was Grant's reputation as an overzealous, "cross-the-line"
litigator. In 1992, a Pennsylvania court reversed a murder conviction
against a man named Nicodemo Scarfo on grounds of prosecutorial
misconduct. The court stated: "We are especially concerned that prosecutorial
misconduct seems to arise in Philadelphia County more so
than in any other county in this Commonwealth." The court went
on to advise prosecutors to take a "more thoughtful approach to the
prosecutor's role in our society." One of the two prosecutors whose
conduct was under scrutiny in the Scarfo case was Joey Grant.

Burns attacked us from a different angle, saying that because we
had time on our hands to stoke up the protesters at rallies, we surely
could be ready to present real evidence. "Yesterday," Burns said, "Mr.
Weinglass was outside trying to incite the crowd."

Len has always had to battle the legacy of his experience in the
Chicago Seven trial. Some people in the legal community still think
of him as "that wild man Weinglass," an opprobrium from Judge
Hoffman that stuck. Anyone who knows Len-a gentle human being,
if there ever was one-realizes how absurd the characterization is. Len
shot back at Burns: "This is the kind of thing I'm talking about, Your
Honor. I come to Philadelphia, I expect lawyerly-like conduct." With
that, the trappings of dignity in the proceedings melted away in the
heat of the dialogue.

The fix was in. We now understood the real function of the August
17 execution date. There would be no execution on August 17,
1995-of that I was certain. The governor established the August 17
date so that Judge Sabo could use it as an artificial deadline by which
the PCRA proceedings were to be completed; it thus provided a justification
for him to create a climate of haste, which heightens the
likelihood of mistakes and omissions. Mistakes and omissions would
then be exploited by the prosecution in any future proceedings in
federal court, where the real fight would take place. Judge Sabo refused
to grant the stay, the better to keep the pressure on.

But he also did something that was rather cunning. He didn't
deny our request for a stay either. He ruled that he would "take it
under advisement." By doing so, we couldn't take the issue to the
Pennsylvania Supreme Court on an emergency appeal, because a litigant
can only appeal an actual denial of a request. Judge Sabo made
it clear that he wasn't denying our stay application. He just wasn't
granting it as of yet. He blindsided us, and he clearly enjoyed the
feeling of having the upper hand.

The governor's decision to issue a death warrant-something the
legal team knew was a symbolic gesture-galvanized the Mumia supporters,
not only those who packed the courtroom but supporters
worldwide. To them, August 17 was a real deadline, a date that could
mark the end of the line for Mumia. To them, the fight for a stay of
execution was highly significant, and we opted to pursue our legal
strategy with that premise in mind. To the lawyers and to Judge
Sabo, the fight over the stay was really about power. Judge Sabo
couldn't abide the notion of giving us anything; and to the prosecution,
the quibbling over the stay suited their desire to pressure us into
putting on a case without the psychological comfort of being fully
prepared.

Of the July 12 proceedings Cornel West said: "I've never seen a
Jim Crow court until today. The whole atmosphere of this court is
Mississippi 1955, and that's what's sad about it." Throughout the
proceedings, we could hear the chants outside: "Justice, Now!" "Free
Mumia!" and "Sabo Must Go!"

***

We never were able to secure the stay of execution before the start
of the hearings. Judge Sabo wouldn't even grant our request to have
the hearings begin on August 1, only three weeks away. We reluctantly
put forth that proposal as a compromise to the prosecution's insistence
that we begin immediately. The judge wasn't interested in compromises;
if the prosecution thought it best to begin immediately, then
the PCRA proceedings would begin immediately.

Faced with a rushed schedule that threatened our ability to present
our evidence, we filed an emergency application with the Pennsylvania
Supreme Court seeking more time to prepare for the hearing. Jon
Piper and another prosecutor on their team debated the issue before
Justice Frank]. Montemuro, Jr., of the Pennsylvania Supreme Court,
as Len and I prepared ourselves for the courtroom battles to come.
Len and I were the designated courtroom litigators; Rachel handled
certain motions and logistical matters; and Jon, to the extent that he
could squeeze in the time (no small feat given that he was an associate
in a corporate law firm), would help me with legal research and drafting
of legal memoranda. At the end of the day on July 17, we received
word from Jon that Montemuro pushed the start of the hearings back
to July 26-a surprising result, given that we were the ones who
advocated having the case advanced in the first place. In any event, it
still wasn't much time, but at least it gave us a chance to catch our
breath. One newspaper article reported in its headline, "Raucous Appeal
Hearing Aborted in Abu-Jamal Case." Raucous it was, but
aborted it was not.

The next day, July 18, Judge Sabo let it be known that the protesters
who appeared outside his home over the weekend-eleven people
of the hundred-plus who showed up with placards and healthy
lungs were arrested-would not influence his actions. He figured that
we lawyers orchestrated, or at least encouraged, the incursion into his
private sanctuary, but we had actually had no involvement whatsoever.
Although rightfully upset by the protests at his home, he didn't let
on that he was miffed by the Pennsylvania Supreme Court's intervention,
but he must have been, at the least, a bit annoyed. He quipped
to Len, "It reminded me of the old Biblical story of Solomon." Len
said that "we felt like that child" who Solomon proposed splitting in
half. "So do I," Sabo responded good-naturedly, "because I wanted to
start today and you wanted to start August first. And the Supreme
Court broke the bone, gave you a piece, gave me a piece, and said
now you lawyers chew on it." Sabo seemed to enjoy the back-andforth.
To Sabo, temporarily taken out of retirement to handle this
case, the events in his courtroom were a game. It probably broke the
monotony of sitting at home playing solitaire.

***

The courtroom dramatics were a boon for the reporters. The media
chastised Judge Sabo for his rank partiality. The Philadelphia Inquirer
remarked after the first few court appearances: "The behavior of the
judge was disturbing the first time around-and in hearings last week
he did not give the impression to those in the courtroom of fairmindedness.
Instead, he gave the impression, damaging in the extreme,
of undue haste and hostility toward the defense's case." A
front-page headline in the Philadelphia Daily News on July 19, 1995,
put it bluntly: "Sabo Must Go." One Philadelphia Inquirer columnist,
calling Sabo "Mr. Magoo with an attitude," warned that his "behavior"
does not "inspire confidence in the court's impartiality." I thought
that the reference to Mr. Magoo was interesting; Abbie Hoffman had
observed that Judge Julius Hoffman in the Chicago Seven trial looked
like Mr. Magoo.

Even Senator Arlen Specter, an unexpected ally, told the Republican
National Committee that this case was being mishandled by
Judge Sabo. In a speech at the Wyndham Franklin Plaza Hotel, Specter,
a former Philadelphia district attorney, stated that, although he
did not know the merits of the case, "once the judge says he is entitled
to a hearing, it has to be a realistic hearing and a meaningful hearing
and a hearing that has adequate time for preparation."

The media impression of Judge Sabo didn't improve over time.
In an August 13 editorial, the Philadelphia Inquirer had this to say:
"Over the last several days in a handsome City Hall courtroom, the
search for justice in the case of the death-row inmate Mumia Abu-
Jamal might have been a serious, sober, rational affair-a proceeding
that enhanced respect for the law. That, unfortunately, has not been
the case. And it has been, in large part, because of the injudicious
conduct of presiding Commonwealth Court Judge Albert F. Sabo."
The New York Times, noting that Judge Sabo "has sent more people
to death row than any judge in the state," cited actual courtroom
occurrences at the hearing to illustrate that Judge Sabo "has been
openly contemptuous of the defense." The article further observed that
"Judge Sabo has sustained virtually every prosecution objection while
shooting down almost every defense objection."

Legal commentator Stuart Taylor, writing for the conservative
publication American Lawyer, was shocked by the way Judge Sabo
conducted the hearings, observing that he "flaunted his bias, oozing
partiality toward the prosecution." Taylor faulted Judge Sabo for barring
Mumia from presenting witnesses and for "sharply restrict[ing]
Jamal's lawyers in their questioning of witnesses, and block[ing] them
from making offers of proof on the record to show the import of the
precluded testimony."

Throughout the nation, people, many with high-profile names,
voiced their concerns over the fairness of Mumia' s trial and the 1995
proceedings. A full-page ad in the New York Times summarizing our
legal claims appeared in early August with an eye-popping list of
names. Professor Charles Ogletree, the Harvard Law professor, and
three of his colleagues wrote to Governor Ridge on August 4, 1995,
urging clemency. So did Jesse Jackson. The National African American
Leadership Summit issued a statement on June 10, 1995, expressing
its "deep alarm" over Mumia's case. A petition signed by two dozen
members of Congress was sent to Attorney General Janet Reno, stating
with reference to the impending execution date that a "grave injustice
is about to be committed."

The events in Judge Sabo's courtroom reverberated in distant
lands. A few thousand supporters marched through downtown Berlin
a day after we began the hearings. Protests in France, Denmark, London,
Rome, Brasilia, Mexico City, and other cities followed. Early in
July, South Mrica's largest black newspaper, The Sowetan, issued an
editorial stating: "When a country's criminal justice system is riddled
with racism, it is only the international community that can uphold
the rights of its victims. One such victim is award-winning journalist
and former Black Panther Mumia Abu-Jamal, a Pennsylvania deathrow
prisoner who is fighting from his cell the racism of America's
justice system." The Mrican National Congress and Nelson Mandela
wrote to Governor Ridge. The European Parliament voted a resolution
calling upon Judge Sabo to issue a stay of execution and urging a fair
review of Mumia's case. Human Rights Watch "joined with many
other human rights organizations in raising serious doubts about the
fairness of his trial .... " French president Jacques Chirac directed his
ambassador in Washington to urge the federal government to intervene
and spare Mumia's life. Danielle Mitterrand even visited Mumia.
The German foreign minister also urged the federal government to
intervene. Italian parliamentary deputies, in tandem with a writer's
group headed by Salman Rushdie, urged that Mumia's death sentence
be lifted. Belgium dispatched a communique to the State Department
asking for the same thing. The foreign reaction even crossed into
violence. In Greece, for example, two bombs went off in American-owned
banks, with a radical group taking responsibility for the blasts,
saying they were in protest of Mumia's death sentence.

***

The court session on July 26 began, not surprisingly, with Judge
Sabo picking a fight with us. We had just taken our seats when the
court crier issued the solemn pronouncement, "God save this Honorable
Court."

"Take a seat back there!" Judge Sabo shouted to some people in
the audience within a fraction of a second after taking the bench. He
then directed his anger at one of Rachel's assistants, MOVE member
Jeanette Africa. He ordered her away from our table, demanding that
she sit in the audience. Len tried to explain that she was assisting the
team, but Sabo scoffed at the argument.

"She is not a lawyer," he said sharply. "I am asking her to take a
seat back there in the audience."

Len didn't want to back down, but he didn't want to start the
proceedings with unnecessary bickering either. "I think it should be
noted that she has sat there [at the defense table behind Mumia]
without disruption of any kind for the last court session."

"I am not talking about disruption. I am saying that is not the
proper place for her to sit. She had too much to say in the last trial
and that's why we had a lot of trouble." Age and the passage of over
a decade had not dimmed the judge's memory. He remembered that
Mumia had consulted with Jeanette throughout the 1982 trial. This
recollection of the 1982 trial prompted some shouts from the audience.
Judge Sabo shouted back: "Any outbursts and you will be evicted
from the courtroom. You are not out on the street. What you do on
the street I don't care, but in this courtroom you will show proper
respect for the proceedings that are going on here now."

Len waited for the judge to finish his warning. "Your Honor, the
court's last comment about the first trial is reflective of an attitude-"
"It is not reflective of anything," Judge Sabo interrupted. "I am
just telling you plain ordinary facts that occurred, Counselor." Judge
Sabo was fond of using that appellation, "counselor." He said it with
an edge, using the word as a verbal jab at a lawyer. He didn't give
Len a chance to respond, opting to change the subject. "I understand
you subpoenaed the governor and his staff."

Indeed we did. We wanted the governor and four of his aides to
testify as to the timing of the issuance of the death warrant. We didn't
yet know about the forwarding of intercepted legal mail to the governor,
but we knew that the timing of the death warrant was not
coincidental. The governor, of course, was moving to quash the subpoena
and an argument date had been set for Monday, July 31.

Len tried to shift the focus back to Judge Sabo's attitude. He
renewed our recusal motion, pointing out that numerous news outlets
had been critical of the judge's handling of the proceedings thus far.
Len was waving photocopies of newspaper articles, arguing that "community
sentiment" is a relevant criterion for determining whether a
judge should continue to sit on a case.

"Community sentiment does not control, Counselor. This court
does not buckle under community pressure. Let's go! The recusal request
is denied. For the tenth time, the twentieth, the thirtieth time,
it is denied! Let's proceed with the case, Counselor."

Prosecutor Grant chimed in, "May the Commonwealth call its
first witness, if he declines to do so?"

"One way or another we are proceeding," Judge Sabo said, speaking
directly toward the prosecution side of the room.

"The Supreme Court has ordered this court to stop hurrying us,"
Len pointed out.

Judge Sabo glared momentarily at Len, undoubtedly fuming over
Len's willingness to use our minor victory with the Pennsylvania
Supreme Court to embarrass him before a packed courtroom. He
spoke again of King Solomon, as if the telling of the story would
convince everyone that the higher court had not personally repudiated
him when it ordered that we be given additional time to prepare.
"They have taken a bone and broken it and given you a piece
and given me a piece," Judge Sabo said bitterly. "And as I told you
before, I ate my piece. And that's spelled A-T-E, for the news media.
Now let's proceed." He didn't want the media to misunderstand
what he had said and erroneously report that he "hated" what the
Supreme Court had done. There was no doubt that he was sensitive
to how the media was reporting the courtroom events. Truth be
told, everyone was.

***

I knew that we had to eviscerate the good-versus-evil story that
McGill had deployed so successfully at the 1982 trial, and I thought
the best way to do that would be to develop a good-versus-evil story
of our own. A useful first step, in my view, would be to undermine
a critical premise of McGill's narrative: namely, that Mumia was a
dangerous, violence-prone radical who was nothing more than a time
bomb. That's how I proposed to begin.

We arranged to have in court on July 26 six mitigation witnesses:
State Representative David P. Richardson, journalists E. Steven Collins
and Joe Davidson, Mumia's high school teacher Ken Hamilton,
a longtime family friend Ruth Ballard, and Mumia's sister, Lydia Wallace.
These witnesses, who I prepared and would question, were exemplars
of the type of evidence that could have been presented to the
jury back in 1982 as a basis for advocating for a life sentence. Since
I would be the first to question witnesses in the PCRA proceedings,
I would have to play it by ear as to how much latitude Judge Sabo
was going to give us in the questioning.

***

My image of a good penalty phase defense is Richard Wright's
Native Son. The hero in that book, Bigger Thomas, committed a
ghastly crime-killed a girl, hacked up her body, and burnt it in an
incinerator. A prosecutor's presentation to a jury would focus only on
those few minutes of Bigger's life. If a juror/reader focused solely on
those few minutes, she would likely be quite inflamed and perhaps
amenable to imposing a death sentence. But I dare say that few readers
of Native Son come away from the experience anxious to send Bigger
Thomas into the death chamber. The reason is because Richard
Wright does a masterful job of bringing us into Bigger's world, allowing
us to understand him, to see him as a complex human being with
intrinsic dignity and worth, without sugarcoating the hideousness of
his crime. A dedicated trial lawyer gets inside the emotional universe
of his client, and in so doing, is able to remove his client from the
presumptive category of evil he finds himself in at the start of a capital
trial. Richard Wright, like so many other great-souled artists, shows
us how it is done.

It is often said that a great trial lawyer, like a great novelist, preacher,
or prophet, is a great storyteller. An effective death penalty trial lawyer
must be the ultimate storyteller.

Anthony Jackson never thought about how to advocate for Mumia's
life in the event of a conviction. He never assembled evidence
about Mumia's life; he never consulted with people who had known
him at various stages of his life; he never even talked with Mumia
about the subject. It was, therefore, inevitable that the penalty phase
would be, at the least, a perfunctory affair, and at worst, a disaster.

McGill had focused almost exclusively on Mumia's early association
with the Black Panther Party, knowing that the jury probably
held an image of that organization as destructive, ruthless, and threatening
to all that white middle-class America holds dear. The Panthers
were indeed fond of Mao's remark that "all political power grows out
of the barrel of a gun." Mumia's early political awareness could not
have sidestepped such sloganeering. But it was too much for McGill's
jury, nurtured on network news and sitcoms, to understand that the
Panthers in general, and Mumia in particular, embraced Mao's remark
as an observation, a pithy distillation, of European and American history.
Mumia tried to explain that point to the jury, but the transmittal
of that message, occurring in Judge Sabo's pressure-cooker courtroom
with the fog of death hovering over the proceedings, was lost upon
an audience that had already adjudicated Mumia a cold-blooded cop
killer.

Mumia did indeed embrace radical politics. He still does. What
the jury did not hear was that Mumia's commitment to radical politics
was not, as McGill suggested, the scaffolding upon which Mumia built
his desire to kill police officers. Rather, like many others, Mumia came
to radical politics, the Black Panther Party, and advocacy journalism
because he felt that social justice requires attacking the roots of our
society's ills-notably racism and poverty, which flourish in an unjust
economic system. Violence was not the trajectory of his radical poli-
tics; community service was.

There was no excuse for Jackson's failure to bring in mitigation
witnesses to counteract McGill's distorted caricature of Mumia. He
had the good sense to bring in respected Philadelphians like Representative
Richardson and Senator Street at the bail hearing six months
earlier. Newspaper accounts of the crime were often filled with commentary
by people who knew Mumia, expressing shock that he
would be involved in such a violent incident. A December 10, 1981,
report in the Philadelphia Daily News, for example, noted that "Jamal's
arrest for murder seems another contradiction in the life of a man
remembered by friends as calm and peace-loving." The article further
reported that those who knew Mumia described him as "talented,
brilliant, compassionate." It went on to say: "He was an awardwinning
journalist of immense talent ... whose work showed deep
compassion and understanding of the city's minority community."
The Philadelphia Inquirer came out with a profile of Mumia on the
same day. It noted that, according to those who knew him, "Violence
was something alien to Jamal-despite his association with militant
groups." The Inquirer piece added: "Jamal's friends described him as
a gentle man, a good reporter with an excellent radio voice and a
social activist who never preached violence."

Acel Moore, an associate editor at the Philadelphia Inquirer, was
in shock when news came out of Mumia's arrest. "Mumia, whom I
have known professionally for several years, was a gentle man who I
would not consider capable of a violent act," Moore stated to other
reporters. The news director at public radio station WUHY, Nick
Peters, underscored the point: "I never detected anything in him that
would suggest violence."

My strategy for the hearing was to explore four areas of Mumia's
life to illuminate his personal qualities: his commitment to community
service and empowerment, his commitment to family, his commitment
to peace and nonviolence, and his commitment to the craft of
journalism. Three individuals with reputations beyond challenge were
slated to be our core witnesses: Representative Richardson, Philadelphia
radio journalist E. Steven Collins, and Wall Street Journal reporter
Joe Davidson. Mumia's sister, his high school teacher, and his
mother's close friend would be complementary witnesses, adding more
color to the portrait that the core witnesses would paint.

State Representative David Richardson was the first of our witnesses.
He testified that he came to know Mumia through their shared
commitment to the community: "We were very actively involved in
the community through a number of organizations, groups, to try to
help promote and motivate the community around cultural and positive
aspects of the African-American community here in the city of
Philadelphia." He added: "It was Mumia's compassion for people and
compassion for those issues that impacted directly on vital issues, such
as housing, such as health care, such as feeding the homeless, that
drew me closer to Mumia."

Richardson's testimony showed how Mumia's talents and activism
flowed from his deep devotion to the voiceless. He looked upon Mumia
as a fusion of slain black leaders: "[I]t was the compassion and
heart and feeling of Dr. Martin Luther King but the tenacity of a
Malcolm X, and also the conviction of a man like Medgar Evers. And
I think if you tied them together and you look at what we have here
today you would have that in a total, comprehensive sense in Mr.
Jamal, who has been actively involved in our city and struggle for a
long time."

Richardson's invocation of martyred black leaders was echoed by
E. Steven Collins. Collins testified that Jamal "had a way of translating
human emotion through radio so that no matter where you were you
understood the circumstances. I think of him as I think of Dr. King.
Because Dr. King did that." Collins's and Richardson's assessment of
Mumia was not at all surprising. Mary Mason of radio station WHAT,
a prominent radio broadcaster with a popular morning radio show,
described Mumia to a reporter from the Philadelphia Daily News the
day after the shooting "as a Malcolm X, Dr. Martin Luther King, and
the Rev. Jesse Jackson rolled into one."

Richardson also led the way with strongly worded answers about
Mumia's peaceful disposition and commitment to nonviolence. Richardson
described him as a "strong advocate" for peace, a "peacemaker"
who "abhorred violence." Collins said he could not "remember one
time where there was ever a discussion, any hostility, verbal or otherwise,
towards any law enforcement, or even a philosophical view
that would suggest that." In trying to articulate his view of Mumia's
attitude toward peace and violence, Collins stated that he "search[ed
his] mind" but could not find any indication of a proclivity toward
violence. "In my mind I thought a million times about this whole
preoccupation with his supposed philosophical bent on hurting law
enforcement or whatever," Collins explained. "And I don't remember
ever, ever, ever hearing that or having a discussion with Mumia or
other people where that came up or that was principal or centerpiece
as he has been treated in many news stories since this occurred."

I knew that much of Mumia's self-image was wrapped up in his
activities as a journalist. I wanted the witnesses to explain that Mumia
never separated craft from politics: what he did as a journalist was
entwined with his commitment to social change. Journalism was, I
intuited, an outlet for his acute sensitivity to the voiceless in society.
At the time of his arrest, he was serving as president of the Philadelphia
Association of Black Journalists. His mastery of the craft was
well-known and admired. Every profile of Mumia published in the
immediate wake of the shooting, of which there were several, focused
primarily on his immense talents as a journalist. The Philadelphia
Inquirer reported on December 10, 1981, that "one of [Mumia's]
former news directors said yesterday, it was his searing and skillful
interviews and radio reports on 'the system' as it affected the swirling
forces and subtleties of inner-city life that made him a well-known
figure in local broadcast journalism." Nick Peters, the public radio
station news director, remarked, "If you ever heard his reports it was
incredible. People would hear his reports and always wanted to know
more about the subject. He had an incredible presence."

Radio personality Mary Mason felt Mumia was "one of the best
in the business." Mason, who had her run-ins professionally with Mumia,
still viewed him as "an extraordinary news person. Jamal could
have been a network anchor." A colleague at WUHY where Mumia
once worked, America Rodriguez, explained that Mumia had "a dramatic
flair." "He didn't make his stories dramatic. He could draw out
the drama of an event."

Collins testified that he would have told the jury that Mumia was
"the greatest voice and greatest journalist 1 had met," someone his
peers expected would rise to the level of broadcasters like Charles
Osgood and Ed Bradley. According to Collins, Mumia's commitment
to the community was "seemingly his trademark" because his journalism
spoke for "people who needed a voice. People who were out
of work ... [I]f you are standing in an employment line or in a welfare
line and you get short treatment, as the people do on that level, Mumia
would articulate and illuminate their condition in an incredible
way." Joe Davidson, the Wall Street Journal reporter, testified that
Mumia was "the best radio journalist in the city."

1 prompted Representative Richardson to remember the time
when Mumia aired an appeal to the community to help locate a missing
child. He explained that this particular broadcast "sticks out more
so than a lot of other cases ... because it was the compassion that was
shown directly as it related to human life." As a Temple student,
Collins recalled hearing a commentary by Mumia on the pointless
shooting death of a young black man. "[I] n three minutes it felt like
1 had a keen insight into what happened and Mumia's conclusion was
compelling and it encouraged people to think about the value of life."

Mumia's older sister, Lydia Wallace, explained in her testimony
that her brother had a passion for justice even as a child growing up
in the housing projects. "He cared about people. He wanted everyone
to have a fair shake .... He was sensitive to the people's plight, hardship,
oppression."

A longtime neighbor and family friend, Ruth Ballard, recalled
Mumia as a young boy giving Bible lessons to others: "There is one
particular incident where in the summertime mainly they would have
Bible classes. And a teacher would come around and teach them at
the community hall different things about the Bible and the Lord.
And Mumia would go as well as other children, but Mumia would
do something different after the class was over. He would go home
and he would gather up the little children and he would read to them
from the literature that he had received in Bible class. As though he
was the preacher or the teacher."

Mumia's generosity was underscored by his high school teacher,
Kenneth Hamilton, who said that "Mumia was just very eager to share
with other classmates." Hamilton also remembered Mumia for his intellect
and his voracious reading. "I was impressed by his intelligence,
his sincerity," Hamilton explained. "He was very well read for a young
man of his age and he stood out far from the rest of the class." Hamilton's
testimony was reminiscent of a comment made by Mumia's principal at
Benjamin Franklin High School, Leon Bass, in the wake of his arrest. Bass
told a reporter that he remembered Mumia as one who helped lead an
unsuccessful student effort to change the school's name to Malcolm X
High School. He described Mumia as having "great potential."

With all the emphasis on Mumia's work as a journalist, I did my
best to explore his private life, which I had come to learn displayed
the same compassion he expressed publicly. The problem was that
Mumia is an intensely private person, one who is highly reticent when
it comes to exposing private feelings and personal information about
his childhood. Mumia's sister testified that their family life during
Mumia's childhood was structured, spiritually based, and loving. Mumia
fostered a loving relationship with his siblings. Lydia explained
that her brother was especially close to his mother, visiting her frequently
even after he went out on his own. He also was a father at
the time of his trial, and his devotion to his children was visible to
those who knew him. In fact, Representative Richardson carried with
him the following image of Mumia: "You could picture Mumia with
his son on his shoulders and his microphone in his hand interviewing
people in the community as he was actually out in the community
doing his work."

The struggle to reconfigure the good-versus-evil narrative that
would redefine the case had a positive start. Faced with the vivid and
compelling portrait these witnesses provided, prosecutor Grant recognized,
in his words, the "immense talents of Mr. Jamal," his "obviously
talented journalistic voice, and his activism." He then
admitted, to our amazement, that the killing of Officer Faulkner could
not be squared with Mumia's true character: "From all the descriptions
of everybody that has come here-and they all are good people from
what I can see, I believe-I don't think the shooting of Officer Faulkner
is characteristic of this defendant." Quite a change from McGill's
blistering assessment.

***

The court session ended on July 26 the way it began, with angry
shouts. After I finished up the questioning for the day, the judge
wanted to know who we would be presenting the next day. After some
discussion on the matter, Judge Sabo quickly left the bench. Rachel
had walked up to the podium to address certain problems over visitation
with Mumia. Judge Sabo had obviously ignored her. The slight
aroused the pro-Mumia spectators and they began chanting "Sabo
must go!" Someone went back to chambers and moments later Judge
Sabo returned to the bench.

"There is too much noise in this courtroom," he angrily exclaimed.
"If you don't shut up I will put you all outside."

Someone yelled out, "This is bullshit!"

"Take him out!" Judge Sabo ordered.

The spectator, an elderly and frail black man, raised his hands to
indicate that he would leave voluntarily. As he gingerly made his way
toward the aisle from his seat, he shouted out to Sabo in a strained
voice, "You are a judge! You are a judge!" It was a powerful moment,
the perfect thing to say. Judge Sabo needed to be reminded that, as
a judge, it was his duty to rise above the agitation engendered by
strong feelings stemming from the case.

It seemed to me Sabo was ruffled and embarrassed, but he tried
to mask it with bravado. "Put him out!" he demanded again. Court
officers moved in to take the elderly black man by the arm when he
abruptly swung at one of them, protesting, "I can walk! I can walk!"
I suppose it was because of his age and evident frailty that the court
officers didn't get overly physical with him. On several occasions during
the hearing, court officers literally threw spectators out of the
courtroom.

Sabo pounded both fists on the bench. "It is getting to be a circus
here, Mr. Weinglass. Stop this nonsense." Another outburst of laughter
instigated the court crier to demand silence. "Boy, I will tell you,
this is getting to be a circus. It is a shame. It's a disgrace." With that,
the judge trudged toward the door to his chambers.

I just shook my head. It was only the beginning.

________________

Notes:

i. In the first five years of New York's death penalty, by contrast, only one individual from New
York City was sentenced to death.

ii. In 1982, the mode of execution was by electric chair. It is now by lethal injection, the method
of choice in the vast majority of death states.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:26 am

I did the best I could with the resources that
I had.

-- ANTHONY JACKSON


14. REVISITING THE PAST

It was only a matter of time before Judge Sabo would start
threatening us with contempt, for which he was famous among
the local criminal defense practitioners. It happened for the first time
on the second day of the proceedings, July 27. Judge Sabo wanted me
to call the next witness. While we had intended that our next witness
would be Anthony Jackson, we weren't sure if he was fully prepared
to handle the stress of answering uncomfortable questions about his
performance in a very difficult case. Len and I were huddled in a
conference with Mumia, as the judge peered impatiently at us. We
were discussing the other possible witnesses to call before putting Jackson
on the stand.

"It is past nine-thirty now, Counselor, call your next witness." We
were still deep in conversation, oblivious to the judge. "Mr. Williams.
Mr. Williams! Mr. Williams!" I looked up, startled. "The court has
directed you to call the next witness. I don't want to have to hold
you in contempt."

There it was: the contempt threat. We entered the PCRA pro-
ceedings having heard much about Sabo's penchant for threatening
lawyers with contempt. It was a relief of sorts to have him use the
word early in the litigation, almost like taking an early punch in a
boxing match to remove the frightening aura of the contest. The threat
would be issued numerous times during the course of the hearings,
and actual citations issued twice, against Len and Rachel. In fact, the
threats became so routine we eventually didn't even take notice.

After some squabbling with the judge over scheduling, we called
Jackson to the stand. Len had been working with him for days, and
he would be doing the questioning. I liked Jackson, because he struck
me as compassionate and genuine. I remember him, Len, and me
having dinner one evening several months before the hearings, and I
marveled at how unguarded he was. He knew what we were hoping
to do: paint him as an incompetent. It says a lot about Jackson that
he was willing to spend hours going back over a time in his life that
he probably wanted desperately to forget when he knew what our
mission was. As horrible as the experience in 1982 was for him, he
still retained a generous spirit.

During the times when I observed Len preparing Jackson as we
approached the day he would take the stand, I could see his eyes
gradually deaden and his stamina wither. There came a point when
he just wanted the whole thing to be over with-finally and definitively,
over. I felt pained at what we would necessarily subject him to
in the PCRA hearing. It is never easy for a lawyer to take the witness
stand, especially for a trial lawyer whose psychological makeup is
geared to having control in the courtroom. It is especially stressful for
a criminal defense lawyer to relinquish control by being questioned in
the context of a claim that he didn't provide constitutionally adequate
representation. The stress is magnified when the case is receiving
worldwide attention. On the one hand, Jackson didn't want to see
Mumia executed; no defense lawyer wants that for a client. On the
other hand, no lawyer, and Jackson was no exception, enjoys having
his performance put under a microscope and critiqued with the benefit
of hindsight for any semblance of performance deficiency. As lawyers
for Mumia, we would be unforgiving in our critique; but as a fellow
trial lawyer, I was more tempered, because I know that it is impossible
to go through a trial without making mistakes.

***

Jackson took hesitant steps as he approached the witness chair.
Beads of perspiration had already formed on his brow and his tie
seemed to be tightened unnaturally around his neck. Len first lobbed
simple questions to Jackson about his personal background, a standard
way of warming up a witness. Len then gently moved into the area
of his experience with capital punishment litigation. Jackson claimed
that he had handled upward of twenty capital cases before getting
involved with Mumia's case. This was plainly wrong, and I jotted a
quick note to Len to indicate why I thought so. Jackson had spent
three years with a public interest agency doing civil litigation; at the
time of Mumia's arrest, the revived death penalty in Pennsylvania had
only been on the books for those same three years. There was no
conceivable way Jackson could have handled a single capital case, let
alone twenty. Len wisely didn't launch into an attack of our own
witness at this early stage of the questioning, notwithstanding my
initial exuberant backseat-driver instinct to attack. It is usually better
to get what you need from a witness with friendly questioning, then
attack later, if necessary.

I was pleased that Len took my suggestion to get the "good stuff"
concerning the penalty phase before entering into the thornier area of
Jackson's guilt-phase representation. Our prep sessions with Jackson
revealed that his inadequate performance in the penalty phase was
straightforward and undeniable. He quickly admitted on the stand
that he had talked with no one about testifying in the penalty phase,
had subpoenaed no witnesses, and had not developed a plan for rebuffing
McGill's vigorous advocacy for death. "We were working six
days a week for a couple of weeks," Jackson explained, oddly using
the word "we" when in fact he had worked alone on the case. "I
assumed that we would have had at least an extra day to prepare for
the sentencing." That's what you get for assuming anything in Sabo's
courtroom, I thought to myself.

Len then nailed the point: "So that we are clear, Mr. Jackson,
prior to the verdict of guilt on Friday afternoon, July second, you
hadn't done anything to prepare for the penalty phase hearing, is that
right?" Jackson nodded and acknowledged that this was true.

Jackson's admission that he did nothing to present a case for life
on Mumia's behalf was, in my judgment, very important. For many
supporters, and for Jon and Rachel, it meant little because the sentiment
was that nothing would be acceptable short of Mumia's release
from prison. As important as that goal was (and remains), the reality
that any death penalty litigator understands is that saving the client's
life is paramount because it presents the most immediate problem to
be solved. The foundation upon which the death penalty can be overturned
having been laid, the lawyer can then work for his client's
exoneration, if that is feasible under the circumstances. If too much
emphasis is placed on complete exoneration at the expense of developing
a powerful case against the death verdict, one risks losing the
entire case-and the client dies. It is like doing emergency medicine:
save the patient's life, and then deal with restoring him to full health,
if that is possible. It was always my orientation, and that of Steve
Hawkins-which made us (the two death penalty litigators) the lone
voices on the defense team-to place at least as much emphasis on
the penalty phase as on the guilt phase in litigating Mumia's case.

After questioning Jackson about his mishandling of the penalty
phase, Len moved into the far more delicate area of Jackson's guiltphase
performance-delicate because Jackson felt that it was wrong
to fault him for the jury's verdict. He felt he had performed adequately,
and he still had some understandable remnants of bitterness
toward the MOVE members who castigated and threatened him during
and after the trial. But, to his credit, he kept those feelings hidden
from view as he testified before the packed courtroom. Len identified
each of the witnesses called by the defense and asked Jackson if he
had talked with any of them before testifying. Jackson admitted that
he put all of them on the stand cold.

Len then brought up the subject of Debbie Kordansky. Jackson
explained that he was too swamped to arrange for her attendance in
advance of the trial. "In this case, unlike any other homicide case that
I had tried before," he explained, "the district attorney was pretty
much in control of all of the witnesses. They had redacted the addresses
and phone numbers of the witnesses and cut them out literally.
There was no way for the defense to contact these witnesses without
going through the district attorney's office. Miss Kordansky was one
person I wanted to speak to. Why? Among other things, she said she
saw a man running from the scene. Obviously I wanted to see her."

Jackson paused to see if Len wanted to ask a question. Len just
looked at him, which prompted Jackson to continue. "I remember
bringing this up to the judge and Mr. McGill. As I recall, Mr. McGill
said words to the effect that she didn't want to talk to me, she had
nothing to say, she'd hurt me or something of that sort. This was the
kind of thing Mr. McGill always kept telling me, that these witnesses
don't want to testify for the defense or won't be good for the defense."

Len questioned Jackson about other mishaps in the trial, seeking
to get Jackson to take responsibility for them. He admitted to certain
lapses, including his failure to attack cab driver Robert Chobert with
evidence of his probationary status arising from a conviction for
throwing a Molotov cocktail into a public school. He also admitted
that he should have arranged for Officer Wakshul's attendance to
undermine the reliability of the confession evidence. Another lapse
was Jackson's failure to notice that the medical examiner who performed
the autopsy made a hand-written notation on the first page of
the autopsy report that the bullet penetrating the slain officer's skull
was a .44 caliber.

At first blush, it appeared that there had been a finding that the
fatal bullet was a .44 caliber, which would have ruled out Mumia's
.38 caliber pistol, and therefore would have exonerated him. Jackson
totally missed this avenue of attack upon the prosecution's case. The
wrinkle, however, is that our own ballistics expert concluded that the
fatal bullet was, indeed, a .38 caliber. That fact has not deterred many
to proclaim, erroneously, that Officer Faulkner was killed by a .44
caliber bullet. When we realized that we could not, in fact, make out
a case that the fatal bullet was a .44 caliber, we pursued a more limited
point. Jackson's failure to notice the ".44 cal." reference on the first
page of the autopsy report spoke volumes about his shoddy trial preparation.
It would be one thing for him to decide, as a practical matter,
that he would not use this reference in the report to undermine the
reliability of the medical examiner's testimony; it's an entirely different
matter to bypass its use completely because it simply wasn't noticed.
It is difficult to fathom how any modestly prepared lawyer could have
overlooked the ".44 cal." notation on the first page of the medical
examiner's report. Jackson's failure to notice it illustrated just how ill
prepared and overwhelmed he was.

Jackson seemed relieved when that line of questioning was over.
He insisted that he had not "given Mumia second-rate service." He
said that he had given him "the best that I could with the resources
that were made available to me." Jackson much preferred answering
questions about "the resources that were made available" to him. He
had no problem blasting the Philadelphia court system, in part because
the attention was deflected away from his own conduct and performance;
but most importantly, he seemed invigorated by the opportunity
to expose the stinginess of the system, because, to him, that
was the true source of the evil.

Jackson explained that the court system allocated $150 for a pathologist.
"I telephoned five, six, seven pathologists in this area of
Pennsylvania, New Jersey, Maryland, Delaware. The best I could get
was a pathologist in Pittsburgh who said if I would mail it to him he
would read [the autopsy report] and tell me something over the telephone.
For a hundred and fifty dollars he says he doesn't walk out of
his neighborhood. And he was the cheapest. I had no success in finding
a pathologist who would even consider reviewing [the report], talk
to me or anything, for a hundred and fifty dollars."

As for a ballistics expert, Jackson said it was "almost an identical
situation." He had contacted a ballistician he knew from his days as
an evidence technician with the police department, George Fassnacht.
Jackson was able to muster about $350 from Judge Ribner, but as
Jackson explained, "I did not have enough funds for him to perform
any tests, any examinations, nor for his appearance in court."

Jackson testified that he received "a grand total" of about $800
to secure expert assistance in the trial, including the services of an
investigator. To exacerbate the difficulty, Jackson added, "Assuming
even the amount given by the court was acceptable, you then had
to ask that they wait approximately a year before they receive the
money."

Len finished his questioning by the lunch break. When we returned
for the afternoon session, I noticed a shouting match outside
the courtroom entrance between Mumia's family members and supporters
and court officers. I couldn't make out what the problem was
because the shouting garbled the arguments; all I could see was that
folks were angry and Maureen Faulkner was reduced to tears.

I tried to ask Rachel what had happened in the hallway as the
afternoon court session was called to order, but was interrupted when
two spectators were forcibly removed for standing with clenched fists
in the air after court officers had ordered them to sit down and a
third spectator was ejected for raising his hand in a Hitler salute. By
the time that flare-up was under control, Rachel was already at the
podium complaining that the off-duty police and Faulkner family
members were permitted to enter the courtroom without going
through the metal detectors. This apparently agitated the Mumia supporters.
Rachel complained that this sort of favoritism was unfair. I
heard Maureen whisper loudly, "That's not true!" Yelling then erupted
behind us; more spectators were ejected for hurling insults at the
judge.

Grant disputed Rachel's assertion, stating: "I don't know where
she gets her information but I wish she would start researching some
of the statements she makes prior to opening her mouth."

"She does that all the time," Judge Sabo added.

The personal attack on Rachel was not unusual. The prosecutors
and the judge had a particular dislike of her, either because she was
the most strident one in the courtroom or because they had investigated
us and learned that she was not a genuinely practicing lawyer
and was the most ardent leftist on the defense team. Len, of course,
received grudging respect as an old warrior. As for me, Grant and
some of the detectives pulled me aside in the hallway during one of
the breaks in the proceedings and chided me that I was still young
enough to salvage my otherwise promising career as a trial lawyer if
only I would cross over that great divide and fight on the side of the
angels. I simply laughed at the mock invitation and joked that I was
having too much fun representing bad guys. "You'll be sorry," one of
the detectives warned with a wry smile.

Grant made the suggestion that the pro-Mumia supporters enter
through one set of metal detectors and those sympathetic to the Faulkner
family enter through another set. He explained that this solution
suited the hair-trigger atmosphere that pervaded the court proceedings.
"Since July the twelfth when we started these proceedings, there has
been a constant tumult, incessant horns blaring, crowds shouting,
right underneath the window where the proceedings are taking place,"
Grant recounted. "We've had three outbursts, four outbursts in the
last three days. People shouting and directing comments to Your
Honor. People have been escorted out today. There's been a sum total
of about sixteen people ejected from the courtroom. Now, I am not
suggesting that the defense team is orchestrating any of this, but certainly
emotions are very volatile and spirits are very high. I would
suggest for counsels' own protection and everybody else that there be
two separate entrances and they have metal detectors at both entrances."

As it turned out, the judge didn't quite understand what Grant
was proposing. He ordered the court officers to set up a separate
entrance for use by the Faulkner family and Mumia's family, while
everyone else had to use the general public entrance. We were pleased
with that arrangement. We weren't so pleased with Sabo's offhand
remark that he approved of off-duty officers attending the proceedings
carrying concealed guns. When we protested, he waved our concerns
away, stating that they did so for his "protection."

The afternoon sessionwas devoted to Joey Grant's cross-examination
of Jackson. Grant was a tireless questioner, though at times overly enamored
with big words and long complex sentences. His convoluted
locutions frustrated Jackson. Wording aside, however, the message was
clear: any deficiencies in Jackson's performance had nothing to do with
his preparation or commitment to the case; rather, it had everything to
do with Mumia's "control" over it.

"I don't envy the position you were in," Grant said as a preface
to a question, "but tell me if this is a fair statement. Basically, Mr.
Jamal was telling you what to do and dictating both the strategy and
the witnesses to be called."

"No, sir," Jackson fired back. "Mr. Jamal was not dictating anything
to me."

Grant then proceeded to confront Jackson with various snippets
from the trial transcript. There were several occasions during the trial
when Mumia had consulted with various MOVE members during
court recesses. Grant brought out those occasions to suggest that Mumia
was taking orders from MOVE. Grant also quoted several passages
where Jackson told Judge Sabo that Mumia wished to follow the
"strategy of John Africa" and did not want "a legally trained lawyer"
representing him.

"Were you running the show?" Grant didn't even give Jackson a
chance to answer. "You weren't running the show, you were part of
the show, Mr. Jackson, weren't you?"

Jackson fought back, answering, "I don't know what you mean
about 'the show,' Mr. Grant." Jackson was feisty, but Grant's badgering
was beginning to wear him down. It was getting close to 4:00
P.M., and he needed a break. "He did not dictate to me ... he did
not dictate strategy to me," Jackson griped. "If he did, I would have
walked out of the courtroom then."

The cross-examination continued, with long incoherent statements
by Grant couched as questions. Then, without any real catalyst, Jackson
inexplicably broke into tears. He simply stopped talking and tears
began rolling down his cheeks. He tried to compose himself but
couldn't stop his stammering speech. He had to be helped off the
witness stand, manifestly overwrought. Grant told me years later that
he thought Jackson had stopped breathing, which frightened him momentarily.
It was a bizarre moment because he wasn't talking about
an emotional subject when he began to cry; he was fielding questions
about the possibility that Mumia's supporters raised money for him
during the pretrial phase of the case. No one could figure out what
had prompted the display of emotion at that moment. I watched
Jackson slowly step down from the witness stand and thought to myself
that the glare of attention had taken its toll. Upon reflection, it
occurred to me that Jackson had reason to be very sensitive over suggestions
of financial impropriety-which is what Grant was insinuating. [i]
Jackson was suspended from the practice of law several years
after Mumia's trial due to the mishandling of client funds-a fact that
Grant didn't expose because, deep down, he regarded Jackson as a
friend and as a noble man.

I had my run-ins with Grant during the proceedings, but I respected
his forbearance in that instance. He could have drilled in the
knife and really bloodied Jackson. But he didn't, out of simple human
decency. Too often, in the heat of battle, we forget to be decent.

***

It wouldn't be a day in Judge Sabo's courtroom without an acrimonious
exchange between the judge and the defense team. When
Jackson left the courtroom out of a side exit, Len moved to the podium
to address the judge. Sabo was on his way off the bench. "Your
Honor, one last thing," Len cried out.

"What is it Mr. Weinglass? Why don't we wait until tomorrow
morning?" Fatigued, Sabo was in no mood for more verbal sparring.

"Tomorrow might be too late," Len said, gripping the podium
with both hands. "I just want to make one simple request of the
district attorney." Len explained that he needed the prosecution to
provide a document to us that was part of the court record.

Fatigue had gotten to Grant also, as he reacted testily. "I am sick
of giving them everything!" he shouted.

Judge Sabo, anxious to get home, simply didn't want to get into
the middle of a shouting match. "Well, I don't have it."

"I am sure the district attorney has it," Len said, maintaining his
calm.

"Try to find it tonight," Judge Sabo responded.

"I don't have it, Your Honor."

"Well, 1 don't have it, either."

The calmness in Len's voice was slowly giving way to the highpitched
sounds of stress and frustration. "I am not asking the court
for it; 1 am asking the court to ask the district attorney to provide it
for us."

"Well, ask them for it," Judge Sabo responded, apparently forgetting
Grant's earlier outburst.

"I have, and they refuse," Len explained.

"Go and ask the Supreme Court for it," the judge advised. "I
don't have it. What do you want me to do, dig something up for
you? 1 don't have it."

Judge Sabo, either through maliciousness or idiocy, refused to
acknowledge the nature of Len's request. "I want you to perform as
a judge interested in the rights of my client," Len said, now fully
rebuking the judge.

Judge Sabo rose from his chair. "Don't leave the bench," Len
commanded. Uh-oh, 1 thought.

"I am leaving the bench now because I am tired of this, Counselor.
Let's deal with this tomorrow!"

"Same old game ... Tomorrow ... You will tell me then that it's
too late."

Grant, who had been packing his files, quickly moved to the railing.
"Oh, shit," 1 muttered to myself. 1 had never seen Len become
unhinged like that in a courtroom.

"You know what, Judge," Grant advised, "I think counsel needs
to be reprimanded. 1 don't think he understands the rules of decorum
and the profession in a courtroom."

Judge Sabo glared at Len. "Do you understand, Counselor, that
you are here by permission of this court?" The threat was real. We
had no right to appear as lawyers in a jurisdiction for which we had
no license. Judge Sabo had the power to strip us of the privilege of
handling this case in his courtroom.

"I understand that," Len answered-he too sensing that we
needed to be careful.

"You could be removed. So please. Don't go too far." With that
last remark, Judge Sabo strode toward the door to his chambers.

***

Judges like to pretend that they are oblivious to news coverage of
their cases. The events inside Courtroom 253 were front-page news
in the papers and the lead story on the local news broadcasts during
the 1995 PCRA proceedings, just as the trial proceedings were in
1982. When Judge Sabo entered the courtroom on Friday morning,
July 28, he had something to say to the news media that left no doubt
that he read the papers. ''To you people of the news media. I do wish
that you would report the proceedings in here correctly," he complained.
"You said that we had evicted three people yesterday because
they refused to sit. We actually evicted four. Three of them were evicted
because when they stood up they turned their back to the court. The
fourth one was evicted-he was a rather stocky white male who had
stood up and gave the court a Nazi salute." Sabo moved his microphone
closer and he put his mouth up against it. "Well, nobody in this courtroom
will address this court with a Nazi salute. He not only was evicted
but he was told that he could not come back any further in these proceedings.
I will not tolerate any Nazi salute in this courtroom." I suppose
the judge had a point. Refusing to stand or raising a defiant fist in
the air are, in my view, acceptable signs of disapproval even inside a
courtroom (so long as a jury is not present to witness it); a gesture that
equates this case with the horrors of Nazism, however, is not something
that any judge will tolerate.

Judge Sabo had one more point to make. He was taking a real
hit in the press and on the local news broadcasts. His unguarded
remarks and his undisguised favoritism to the prosecution prompted
numerous commentaries about his unfitness to preside over the case.
Some lamented that he was doing the prosecution and the Faulkner
family a disservice, which I thought was absolutely true. For the life
of me, I do not know why the powers that be in the Philadelphia
criminal justice system allowed Sabo to preside over the PCRA proceedings.
Allowing a respected jurist to handle the matter would have
given the proceedings a semblance of legitimacy. In any event, the
media suggestion that he was actually a detriment to the prosecution
side of the case had to have wounded him.

"I also read in the news media that there is constant bickering
between defense counsel and the judge," he said. "Well, that's going
to stop. When I make a ruling, that's final. I will not tolerate any
arguing about it. The matter, as you all know, is on automatic appeal
to the [Pennsylvania] Supreme Court. I will not tolerate any bickering;
there is not going to be any more bickering." He then brought up
the occurrence at the end of the previous day with Len. "Yesterday, I
had adjourned. I wanted to leave. It was a long day. I don't want any
motions or arguments at that time. There will not be any more of
that. And if you continue to do that, I will have no alternative but to
hold you in contempt and fine you."

***

Jackson resumed the stand, haggard and testy. Jackson stomped
bitterly toward the witness stand, his shoulders drooped and a scowl
on his face. I noticed at that moment that Sabo had handed Grant a
document. I couldn't tell if the judge was trying to be sly abour it.
After the obligatory greeting, Grant showed the mystery document to
Jackson. It was his fee petition-the invoice he submitted after his
obligations on the case were over. It was apparent that Judge Sabo
had done some digging of his own; digging to help the prosecution,
of course. The fee petition showed that Jackson was wrong in his
estimate that the court system allotted about $800 for expert and
investigative services; in fact, the figure was around $1 ,400-a figure
that was still woefully insufficient for a capital case, but damage was
nonetheless done to Jackson's reliability as a witness. It wasn't so much
the discrepancy in the figures that hurt us; it was the impression it
left. It suggested that Jackson was willing to shade his testimony in
our favor because he wanted to see us prevail. When Len objected to
Sabo's apparent willingness to act as a second prosecutor, he offered
a disingenuous explanation. "I just wanted to correct the record," he
claimed. "I only gave it to Mr. Jackson because I saw he was having
difficulty remembering what the fees were. So I gave it to him to assist
him." Someone behind us yelled out "Bullshit!"

When Grant finished his questioning about the fee petition -- questioning
that seemed to go on forever, with endless editorializing -- he
began focusing on Jackson's claim that he did little trial preparation
for the five-month period before Mumia announced his decision to
represent himself in May 1982. Here, too, Grant scored some points.
He stroked Jackson's ego, telling him, "I have seen you work, Mr.
Jackson, and I know you are very thorough." Grant and Jackson had
been adversaries in several cases. It's difficult for an ego-driven trial
lawyer (and there is no such thing as a non-ego-driven trial lawyer)
to resist the flattery, even when it is a transparent tactical ploy.

"You must have read through those reports ten times, at least,"
Grant asserted.

"At least," Jackson agreed. Ouch, I thought. As the one who would
be writing the briefs later on in the case, I listened to answers and
envisioned how they would be deployed on paper. Jackson's answer
was the type that gets paraded in legal briefs to show that Mumia
received excellent and diligent lawyering. 1'd have to find a way to
deal with it in our legal briefs.

Grant then sought to discredit Jackson's sworn statement in his
affidavit where he claimed to have done little preparation. "You state
in your affidavit," Grant began, "and I am paraphrasing-"

Len immediately rose from his seat. "Beg your pardon," he said.
''I'm paraphrasing because I don't really care about the exact wording,"
Grant explained.

"You have to give him the precise wording, otherwise it is not
proper impeachment," Len argued. He was absolutely right. The rules
of impeachment don't permit paraphrasing. A witness who is the subject
of the impeachment must be confronted with the exact words he
supposedly uttered or attested to on a prior occasion. Grant was obviously
unfamiliar with the rule.

"Could counsel cite some law for that proposition," Grant demanded.

Len restated the proposition: "You can't paraphrase and say you
are impeaching at the same time."

"This is Me. Weinglass on evidence, Judge. I never heard of this
rule." The audience behind the prosecution table-the anti-Mumia
spectators-burst into guffaws at Grant's sarcasm.

"Let the record reflect that there was loud laughter from the right
side of the courtroom and no admonishments from this court." There
was a moment of silence as Len remained standing, awaiting a response
from the judge. Judge Sabo apparently thought that Len would
be satisfied just saying something on the record; it was evident that
Len expected the judge to admonish the anti-Mumia spectators.

Judge Sabo capitulated. "All right. I am admonishing everybody.
No laughing, no speaking out, no nothing." It was a weak warning,
couched in terms of putting everybody on notice. For good measure,
to disabuse anyone of the notion that he had given in to Len, Judge
Sabo childishly added, "And that goes for you too, Mr. Weinglass."

Grant eventually returned to his favorite theme: Mumia's purported
control over the defense case, rendering Jackson a victim of
Mumia's ill-fated reliance on MOVE members as his legal advisors.
Grant pointed out that Mumia had control over which character witnesses
to call. Jackson explained that when it came to character witnesses,
it is expected that the client would dictate who would be
eligible as witnesses. "I didn't know Me. Jamal all my life; I couldn't
tell him who to call as a character witness."

Grant then pointed out that Mumia had withheld the names of
the character witnesses from Jackson until the moment that they were
to be called. "It's because you weren't in control, Mr. Jackson," Grant
propounded.

"You are still on this control thing," Jackson said, frustrated.

"Yes, and I am going to stay on it," Grant replied.

"Well, let me just tell you this, Mr. Grant, and I am going to try
to tell you for the last time. I have been practicing law for a long
time. At no time, at no time that I know of have I not been in control
when I was the lawyer. When I was backup counsel-that's when I
wasn't in control." Jackson took a sip of water, and then leaned toward
the microphone to continue, hoping his answer would put a stop to
the unceasing inquiry about who was in control. "For some reason,
you seem to think Mr. Jamal was in control. Mr. Jamal was in control
when he got the Commonwealth to respond to some political thing.
When I was the lawyer, I was the lawyer and I was doing what I
wanted to do. When Mr. Jamal wanted me to do something, I said,
'Your Honor, Mr. Jamal wants me to do this.' If I didn't preface my
remark that way, then I was in control." It turned out that Jackson
had prefaced his remark with the caveat that Mumia was ordering him
to take a particular course of action only once during the trial (and it
was an incidental episode where Mumia wanted Jackson to move for
a dismissal of the murder charge-a futile act, but one that Jackson
agreed to perform to mollify his client).

Jackson's little speech didn't deter Grant from asking still more
questions about Mumia's supposed control over the case. It was tiresome
to watch, because Grant had it all wrong. True, Mumia repeatedly
rebuked Jackson openly; true, he repeatedly ordered him to stop
acting as his lawyer; true, he attempted on several occasions to question
witnesses himself; true, he refused to cooperate with Jackson. But
all of these things didn't add up to what Grant suggested was the
reality. The reality was, Mumia never had control over his own case,
which is precisely why he rebuked Jackson, protested his presence and
his actions in court, and refused to cooperate. Mumia's conduct didn't
reflect that he was in control; it proved that he was stripped of control.
Grant refused to see the distinction.

In fact, Grant seemed to fuel the distinction with his questioning:
"He shouted in your face a number of times, didn't he?" "You have
never been so humiliated in any case that you can remember, true?"
"He shouted at you during the course of a trial in a public forum,
right?" The questions only established Mumia's frustration and ruptured
relationship with Jackson. To Grant, it supposedly bolstered the
prosecution's claim that Mumia controlled the case.

Grant craftily ended his questioning with an effort to undermine
an article of faith within the pro-Mumia movement-that Mumia is
an innocent man. "Now, the truth is, that no matter how much investigation
you did, over how much time, and notwithstanding all the
resources and groups available to Mr. Jamal and to you, and notwithstanding
all the organizations offering monetary and other support,
you just did not find any evidence that showed him to be innocent;
isn't that the simple truth in this case?"

There were ways of answering that question without really answering
it. Jackson could have attacked the premises to the question;
after all, he had not been given adequate resources, and had not performed
any investigation, and had not received money or support
from any organizations. Whether from fatigue or just a lack of will,
Jackson answered as if he no longer wanted to engage in a duel with
Grant. "The simple truth is," Jackson said slowly, "I didn't find it.
That's right. If I had more resources I may have. I don't know."

Grant had more staying power than Jackson, and for that I admired
him. Nontriallawyers don't realize how tough it is to question
a witness for days, which is what Grant had done, never seeming to
let up. He followed up on Jackson's answer with a final question:
"And you may have found out that there was no such evidence that
you could unearth no matter how much money or how much time
you could have had?"

"You are absolutely right," Jackson said.

_______________

Notes:

i. Jackson was appointed by the court, which meant that he was nor allowed to accept money
from sources other than the court.
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Re: Executing Justice: An Inside Account of the Case of Mumi

Postby admin » Tue Jun 09, 2015 1:27 am

PART 1 OF 2

No matter how careful courts are, the possibility of
perjured testimony, mistaken honest testimony, and
human error remain all too real. We have no way of
judging how many innocent persons have been executed,
but we can be certain that there were some.

-- JUSTICE THURGOOD MARSHALL, FURMAN V. GEORGIA


15. ATTACKING THE OPEN-AND-SHUT CASE

Except for those who believe the death penalty is morally
wrong as a matter of principle no matter to whom it is applied,
the most potent argument for its abolition is the possibility that factually
innocent people may be executed. The fact that the death penalty
is racially discriminatory rarely alters people's position on the
subject. Some may be sufficiently moved by the statistics of discrimination
to call for an overhaul of the system, but their support for
capital punishment as a form of criminal sanction remains unaltered.
To many death penalty supporters, discriminatory application of the
death penalty only means that more white defendants should be executed.
But even the staunchest supporters of capital punishment shudder
at the thought of an innocent person executed pursuant to the
law. Not surprisingly, therefore, the stridency in the public discourse
over Mumia's case converges principally on his guilt or innocence.

The most puzzling aspect to Mumia's entire case, which is also its
greatest irony, is that all of the second-guessing over Mumia's guilt or
innocence could theoretically have been avoided with rudimentary
crime scene investigative techniques, which, if Mumia was indeed the
shooter, could have conclusively linked his .38 caliber Charter Arms
revolver with the death of Faulkner. McGill did his best to create the
impression with the jury that this linkage could be made. In reality,
however, all that the prosecution could show was that the bullet removed
from the slain officer's brain was "consistent with" the rifling
characteristics of bullets that would be expelled from the recovered
revolver, which Mumia had begun to carry with him shortly after he
was robbed while moonlighting as a cab driver.

What puzzled us was the absence of evidence indicating that Mumia's
gun had recently been fired, and that he had recently fired it.
Because officers arrived at the crime scene in less than two minutes
after the shooting, it would have been extremely easy to make those
determinations. We didn't believe for a moment that investigators
forgot to perform the requisite crime scene tests-not in a police
killing investigation. We suspected that law enforcement had deepsixed
the results.

In 1994, we retained a ballistician named George Fassnacht,
whom Jackson had unsuccessfully attempted to retain in 1982, to
review the police ballistics reports and the trial testimony of the prosecution
experts. We called him to the stand on August 2. Fassnacht
testified that he refused to accept an appointment on Mumia's case
in 1982 because of "a shortage of funds." Asked if he made a decision
as to the acceptance of court appointments generally, Fassnacht replied:
"It was soon after [I rejected the appointment in the Jamal case]
that I stopped taking court-appointment cases in Philadelphia for a
period of close to ten years." Why, Fassnacht was asked. "Because
Philadelphia either wouldn't pay sufficiently, would arbitrarily slash
the bill in half, or make you wait one, two years for payment."

Fassnacht found, to his astonishment, that there were no reports
indicating whether Mumia had lead residue on his hands or face-a
telltale sign of recent firing of a revolver. Crime scene investigators
had conducted other more cumbersome tests on various items of evidence,
including lead residue tests on the slain officer's tie and on a
nearby wall. Yet investigators incredibly claimed they did no lead res-
idue tests on Mumia's hands or face-obviously the most relevant
area for lead residue testing. When a gun is discharged, it not only
expels the bullet from the muzzle, it releases microscopic particles of
lead residue back toward the shooter. Much of that blowback residue-
how much depends on such factors as the type of gun and
weather-lands on the hands and face of the shooter. A revolver, by
virtue of its construction, releases far more residue than a rifle, and
somewhat more residue than an automatic pistol. The greatest concentration
of residue would be found on the web area of the hand
holding the firearm at time of discharge. It is on the web area of the
hand that crime scene investigators, at the very least, conduct the lead
residue test.

A lead residue test is routine in crime scene investigations where
a suspect is apprehended shortly after an incident involving alleged
gunfire. Crime scene investigators are fully aware of the fact that the
highest concentration of microscopic particles flying out from a discharged
revolver on the hands of the shooter exists shortly after the
shooting. Fassnacht testified that a lead residue test "could have been
accomplished without too much difficulty to determine if, in fact, he
had fired a firearm." Fassnacht pointed out that a simple hand-wipe
analysis could have been performed on Mumia's hands. A hand-wipe
analysis involves brushing the skin of a suspect with a cotton swab,
which is moistened with a certain chemical. Obviously, the most
promising area to swab would be the hands; but crime scene investigators
often swab the suspect's face and forearms, as some firearms
(especially revolvers like Mumia's) blowout considerable amounts of
microscopic lead particles. The swabbing procedure, when done only
on the hands, takes a minute or two. The residue lodged in the pores
of the skin are transferred onto the swab, which is then submitted for
laboratory analysis. No crime scene unit in any major city in 1981
operated without this inexpensive firearms residue kit. Fassnacht testified
that he "would have expected them (the crime scene investigators)
to have performed that test."

Equally astonishing was the claim that no one bothered to notice
whether Mumia's gun was still warm or smelled of gunpowder. It is
possible to detect the smell of gunpowder for four to six hours after
a gun is fired. Recently fired guns, especially pistols, also emit heat.
Police officers are trained to sniff a recovered gun for the smell of
gunpowder, and to feel for warmth on the muzzle, to determine if it
had been fired recently. Jamal's gun was picked up at the scene within
minures of the incident and then delivered to the Firearms Identification
Unit by 5:55 A.M. on the morning of December 9,1981, about
two hours after the alleged shooting. Yet homicide investigators insisted
that no one bothered to smell or feel the muzzle.

Because these sorts of tests were easy to perform and customary
for crime scene investigators, it simply made no sense that law enforcement
accidentally bypassed them when positive results could have
definitively proved Mumia's direct involvement in the killing. The
suspicious nature of the claim was heightened by the fact that this was
a crime scene investigation involving the killing of a police officer-a
crime that undoubtedly provokes enhanced efforts to produce inculpatory
evidence. Although we never ferreted out direct proof that test
results were withheld from the defense, we felt that the inference was
compelling that that was precisely what happened.

***

After Fassnacht, we called a witness who actually saw the shooting
but never testified at the trial. This was remarkable, because out of all
of the eyewitnesses, this one provided to crime scene investigators the
most complete account of what happened. Why did McGill, as thorough
a prosecutor as he was, keep this eyewitness from the jury?

Robert Harkins, a rotund and bellicose fifty-six-year-old man,
wanted no part of the drama taking place in Judge Sabo's courtroom.
We had, on several occasions, visited his home and workplace in an
effort to talk with him. He refused us each time, once telling our
investigator that "detectives downtown" told him he didn't have to
talk to us. On one occasion, at about 9:00 P.M., I knocked on his
door while Len and Steve waited down the block. I've had good success
in the past schmoozing hostile witnesses, and I boasted to Len
that I could accomplish what the investigators could not. "Give it a
try," he said. A young girl answered the door, probably around twelve
years old. The blood drained from my head and I choked up as I
asked to speak to Robert Harkins. As soon as I saw the young girl,
thoughts of Harkins's criminal record intruded into my thoughts-a
record containing information that he had been convicted of sexual
offenses, including corrupting a minor. To see a young girl living in
that home, fair or unfair to Harkins, made me queasy. When he came
to the door, I stumbled through my introduction, telling him that I
was very sorry to disturb him at that hour of the night but it was a
life-or-death matter. I guess my insincerity was evident because as soon
as Harkins caught on that I was working on behalf of "that cop killer,"
as he put it, he cursed and slammed the door.

We stated in our PCRA petition that we wanted to call Harkins
as a witness in order to establish that he had viewed a photo array-an
assemblage of photos (usually six) lined up for a witness to determine
if he is able to select the suspect. We had no independent proof that
a photo array was shown, only a gut instinct based on the fact that
McGill never put Harkins on the witness stand. Why did McGill
forgo another eyewitness who was no more than thirty feet from the
shooting? One explanation that suggested itself from our investigation
was Harkins's legal problems. It was possible that McGill didn't want
to expose Harkins to cross-examination, in view of his distasteful criminal
record. This, however, was doubtful; McGill was too aggressive a
prosecutor to dispense with an eyewitness because of solicitude for the
witness's feelings and privacy. Indeed, White and Chobert were no
angels. It seemed to us, however, that another plausible explanation,
which we were obliged to explore, was that investigators attempted,
unsuccessfully, to secure a positive identification from Harkins shortly
after the crime. A failed identification would not only further support
our claim that Mumia was wrongly accused, it would add yet another
layer to our evidence of prosecutorial misconduct. A prosecutor is
constitutionally compelled to disclose to the defense all evidence of
failed identifications. The prosecution had never indicated in any of
its disclosures that Harkins failed in making an identification. If we
could prove that the prosecution suppressed a failed photo array iden-
tification, we would have good grounds for a reversal of Mumia's
conviction.

The problem, however, was that we had no solid evidence to back
up our speculation that Harkins had viewed a photo array. Harkins
was my witness, and I was dubious that he would testify that he had
been shown a photographic array containing Mumia's picture. Prosecutors
are certainly not above doing nefarious things, but suppressing
a photo array is too easily discoverable for a prosecutor to risk. But,
on the other hand, Harkins hadn't denied viewing a photo array to
our investigator, who had succeeded in exchanging a few words with
him. In any event, I had a more ambitious goal. I pressed for the
calling of Harkins as a witness because I strongly suspected that Mc-
Gill had not used him as a trial witness for a more basic reason: his
observations severely undercut the prosecution's theory of the case. In
fact, I believed that Harkins, a witness who probably had the best
vantage point to the shooting of all the prosecution witnesses, could
go far in bolstering our claim of Mumia's innocence.

Len and I went back and forth over Harkins. I relished those
moments with Len because I felt privileged to witness firsthand the
thought process of a veteran courtroom warrior. Unlike most other
trial lawyers with whom I've worked, Len is unafraid to express doubts
and fears about litigation tactics. He thinks aloud, willingly exposing
himself to rejection and judgment (and oh, how willing lawyers are
to pass judgment), because he cares little of appearing powerful and
mighty. Ironically, his power in the courtroom comes from his manifest
lack of hubris and, as I mentioned earlier, his approach to jury
persuasion as a process of sharing.

We both agreed that Harkins was a witness to be feared, not only
because of his overt hostility but because he was a loose cannon. We
didn't know what he would say about his observations of the crime.
We had police reports containing his interview statements, which, we
believed, blew a gaping hole in the prosecution's theory of what happened
at Thirteenth and Locust; but, as Jackson had painfully learned
with Veronica Jones and Robert Chobert, that was no guarantee that
his in-court testimony would be consistent with them. Moreover, the
detectives assisting the 1995 prosecutors had their hooks in Harkins.
After our failed attempts to get Harkins to cooperate with us, we could
only gain access to him through arrangements with certain detectives.
When we tried to interview him at a police precinct, where he was
being "protected" from us, he simply refused to talk. Ultimately, primarily
through my urging, we decided to put him on the stand, knowing
that we would need some latitude from Judge Sabo to deal with
Harkins's expected hostility. In retrospect, I wonder what gave me the
notion that Sabo would cut us any sort of slack in questioning a
witness-a naive belief in justice, perhaps.

"Petitioner calls Robert Harkins," I announced.

A rather pathetic, overweight, and rumpled man waddled precariously
to the witness box and stopped, nervously fidgeting with his
fingers. Harkins stood there a moment, apparently thinking that he
needed permission to ascend the two steps to the witness chair. The
clerk motioned for him to take a seat, and he stumbled while trying
to place his large frame in front of the microphone. He sat with a
straightened back on the edge of the seat, his lips pursed and tightened
to reveal his tension.

"Now, on December ninth, 1981, at about six A.M., do you remember
being interviewed by a detective?" I asked Harkins as he
glowered at me from the witness chair.

Harkins acknowledged that he had been interviewed and had
signed a police interview report. The report indicated that Harkins
saw a scuffle between the shooter and the officer, which resulted in
the officer falling to the ground on all fours. Cynthia White, the
prosecution's key witness, never said anything about a scuffle between
the officer and the shooter; indeed, she never claimed that the shooter
touched the officer at all (or vice versa). White had said that Mumia
shot the officer in the back as he was running to the scene, and as a
result of that gunshot, the officer stumbled and fell. According to
Harkins's statement, the officer was hit in the back with a bullet when
he was on the pavement on his hands and knees struggling to regain his
balance. The officer then "rolled over" onto his back-again, an observation
in stark contrast to that offered by White. At that point, the
shooter fired two more shots. When asked if he could identify the
shooter, Harkins answered, "Maybe."

A week later, Harkins was interviewed again. Undoubtedly, investigators
were perplexed with the starkly different scenario that Harkins
provided from that of White. In fact, the whole case, from an
investigative standpoint, came down to a choice between Harkins and
White. Chobert, Scanlan, and Magilton could not provide the kind
of detail in their testimony that would allow for a complete accounting
of what happened. None of those witnesses claimed to have seen the
entire incident from beginning to end; White and Harkins, however,
gave as complete an accounting of the events as could reasonably be
expected. The other three witnesses could complement either Harkins
or White. For this reason, McGill could not put White and Harkins
on the stand at the trial; it would have to be one or the other. The
interesting question, then, is why did McGill choose White over
Harkins?

When Harkins was brought back in for a second interview, the
decision as to which of the two would be the bedrock of the prosecution's
case was still very much up in the air. Harkins spoke again
of a physical scuffle between the officer and the shooter, this time with
more detail. He told the investigator that the shooter "grabbed the
officer with his hand and spun him" -no gunfire, not even the brandishing
of a gun, just the physical act of grabbing the officer with the
hand and spinning him. The interviewing detective asked Harkins
again if the shooter actually grabbed Faulkner-to which Harkins
again explained that he had. He reiterated that Officer Faulkner then
lost his balance as a result, fell to all fours as the shooter hovered over
him, and was then hit in the back with a bullet. At that point, the
officer rolled over and was then struck by the fatal bullet.

Significantly, Harkins never saw Faulkner discharge his gun at the
shooter. In fact, he saw the shooter "shrug" his shoulders after firing
into the officer, as if, in his words to the police, "somebody was
watching him." Nowhere in any of the interview statements did Harkins
mention that the shooter went over to the curb and sat down.
Harkins actually left the scene immediately, because, as he put it, "if
there was any more shooting, I didn't want to be the one shot."

The shooter, under Harkins's account, who he described as bigger
and heavier than Faulkner, was never wounded, was seemingly nonchalant
about having just killed a cop, had been in a physical scuffie
immediately before discharging his gun, and fired at the officer in the
back when he was on the ground. No wonder McGill didn't call
Harkins as a witness. His account thoroughly contradicted that of
Cynthia White, a far more malleable witness-hence, more desirable
for law enforcement. It didn't have the primary virtue of White's
account-an explanation as to when and how Mumia was shot
through testimony that the officer had "grabbed for something" as he
was falling toward the pavement. Whereas White resolved that mystery,
Harkins deepened it.

The prosecutors at the 1995 hearing undoubtedly knew that Harkins
posed a major problem for them. It was in their interest to keep the
prosecution story line of the killing clean and straightforward. Harkins
would only muck things up with an account that could never be reconciled
with the account that was presented to and accepted by the jury
in 1982. So they had a strategy: object, and object often, and count on
Judge Sabo to be Judge Sabo-a fellow prosecutor in black robes. It
was, of course, an excellent strategy in Judge Sabo's courtroom. There is
not supposed to be a home-court advantage in litigation, but realiry departS
from theory quite often in the rough-and-tumble world of courtroom
combat. Every single objection interposed by the prosecution
during the 1995 hearings-and this is no exaggeration, as the transcripts
themselves attest-was sustained by the king of death row.

"Do you remember telling the detective that the first thing you
saw was Police Officer Faulkner grabbing a guy?" I asked.

"Objection, Your Honor!" Grant bellowed.

"We are not here to rehash that," Judge Sabo replied on cue,
playing his role as second prosecutor to the hilt.

"Do you remember what you told Detective Sutton on December
ninth, 1981, about the shooting?" I pressed on.

"I was coming down Locust Street-"

Grant immediately interrupted Harkins. "Objection."

"Objection is sustained."

I kept going, asking the same sorts of questions in varying ways,
hoping, naively, that Grant would get fed up with objecting. I was
never naive enough to believe that Judge Sabo would tire of sustaining
Grant's objection. But Grant catapulted out of his chair after each of
my questions, no doubt enjoying the home-court advantage.

There was a time in my life as a trial lawyer when the repeated
sustaining of objections to my questions would discombobulate me.
rd become flushed with shame and long for a place to hide in that
austere pit in the middle of the courtroom. I learned to hide the fear
and shame from the jury, but those feelings would cause me to lose
my power as a courtroom warrior. Over time, with each new jury
trial, I learned not so much to hide my fear and shame but to put it
out in the open for the jury to see it. I came to realize that it is not
unwise to show the jury that you are human, that you, like them, are
afraid at times. I struggled to reach that point in my personal development
to understand that in a jury trial, it is okay to be vulnerable,
because vulnerability allows for human connection, which in turn allows
for authentic communication. And if there is one thing a trial
lawyer must understand about advocacy, it is this: When you're not
communicating, you're not advocating.

I didn't concern myself with fighting with Grant or the judge. I
wanted to expose information, and if I had to stumble through an
examination to do that, then so be it. I began protesting, but Judge
Sabo simply agreed with Grant's position, without even the pretense
of pondering the issue, that we could only ask Harkins about whether
he viewed a photo array. Questions about what he saw on the night
in question were off-limits.

"Let me ask you this, Mr. Harkins. There were discussions, were
there not, on December ninth, 1981, about what happened, right?"

"Yes."

"And you told the police that you were very near where the shooting
happened, right?"

"Yes."

"And that you saw the shooter, is that right?"

"Yes."

"You didn't see the shooter get shot, did you?"

"No, 1 did not."

"Did you see a man running across the street?"

"No, 1 did not."

Grant stepped in again. "I object." 1 had been wondering what
had taken him so long.

Judge Sabo, growing impatient, rebuked me. "Would you get right
to the issue here, Counselor?"

1 decided to go into the photo array issue before going back to
Harkins's observations of the shooting, just to get Grant off my back.
During the course of that questioning, Harkins blurted out, which
stunned everyone, apparently even the prosecutors, that the shooter
"walked, then sat down on the curb." He had never even hinted at
seeing such a thing before. As 1 said earlier, he had actually told the
investigator that he immediately fled the scene for fear of being caught
in gunfire. This inculpatory remark, which was akin to Chobert's surprise
claim at the trial to the same effect, came out of the blue. Grant,
of course, didn't object to that piece of testimony about the night in
question. 1 was ready to launch into my attack, and 1 believed that
even Sabo would allow it now. After all, Harkins had just "opened
the door" to a full exploration of what he saw by virtue of his volunteering
that he saw the shooter lumber over to the curb.

"When you talked to the police on December seventeenth, 1981,
did they ask you about the description of the shooter?"

"I object."

"Why don't you get right to it, Counselor?" Judge Sabo demanded,
again referring to his expectation that we only question Harkins
on the photo array issue.

1 ignored the judge. "Now, you mentioned something about the
shooter sitting down. Do you remember that?"

"Yes."

"Did you tell that to any of the detectives?" I looked over at Grant
and extended both my arms out toward him, indicating, sarcastically,
that it was his turn to say something.

"Objection," Grant said as he gave me a wink. Grant enjoyed the
theatrics of courtroom battles, just as I do, and we related on that
level. I didn't begrudge him the wink, just as he didn't take umbrage
at my sarcastic gesture. The proceedings, deathly serious, had devolved
into a game where each side did its best to create a court record that
would enhance the chances of success later on in federal court.

I then challenged Grant to allow me to question Harkins about
what he saw. It was a last-ditch effort, hoping that I could goad his
macho competitive nature. "Let me be clear to Mr. Grant. If he wants
to throw the gauntlet down, if I were allowed the latitude to question
Mr. Harkins, I could demonstrate to the court that in fact his scenario,
his own testimony, exonerates Mr. Jamal." A strong claim, packaged
within a bold challenge-would Grant take the bait?

Judge Sabo didn't let Grant respond. He immediately interjected,
harping on the fact that we never submitted an affidavit from Harkins
encompassing the issue of his eyewitness observations. That Harkins
was not amenable to talking with us, to say the least, never entered
into the equation for the judge. I should have remembered how Judge
Sabo shut Jackson down when Jackson tried to question Veronica
Jones about police manipulation. There, too, this same judge refused
to allow questioning to go beyond the parameters that were set out
before the witness took the stand.

I continued to ignore the judge and threw out the challenge again,
this time injecting the suggestion that the prosecution was afraid. "I
appreciate the Commonwealth's fear in my questioning this witness,
but what I'm saying to the court is that I could demonstrate actual
innocence through this witness."

"Counselor, you show me-"

"The court is barring me from doing that," I thundered, the frustration
probably evident in my audacity to interrupt the judge. My
interruption could have earned me a contempt citation, but Sabo was
too caught up in the quarreling. "How does Your Honor's ruling
advance the cause of justice?" I asked.

"What do you mean by justice?" the old jurist asked.

"To ensure that an innocent person is not executed," I answered.

"If I could demonstrate through this witness actual innocence-"
Judge Sabo fired back before I could finish, "His guilt has already
been demonstrated by a prior jury." I shook my head, which prompted
Judge Sabo to express his own view of justice: "Counselor, justice is
an emotional feeling. That's all it is."

The spectators let out a gasp. Judge Sabo, seemingly oblivious to
the shallowness of his remark, addressed the crowd: "All right, quiet
in the room or you will be asked to leave. You are going to go out."

Could he really mean that we were not fighting for something
substantial, something beyond the triviality of emotions? "Justice is an
emotional feeling," he said again. "When I win my case, it's justice.
When I lose my case, I didn't get justice, you know. So take it from
there." To Sabo, justice was "an emotional feeling" wrapped up in a
contest, a game-which, when played in his courtroom, is a rigged
event. In this instance, and in so many others in his courtroom over
the past twenty years, the courtroom battles were a life-or-death game.

"I think there is a concept that we call truth, which you're missing,"
I responded.

"You didn't say you were going to call him to show that there
was actual innocence. You said you were calling him to show that the
district attorney's office did something wrong."

I saw that the judge was being highly formalistic because Grant
had fought hard to silence Harkins through saturation objections. I
informed the judge that we wanted to amend our Petition so that
Harkins could be presented to show actual innocence.

"I object," Grant announced, unsurprisingly.

"Of course they object," I declared. "Of course they don't want
the actual innocence evidence to come out."

And it never did through the live testimony of Robert Harkins.
We could never find the wedge to get him back onto the stand so
long as Judge Sabo was presiding over the proceedings.

***

The day ended on August 2 with the usual acrimony, the usual
feuding, but no ejections from the courtroom and no boisterous shouting.
It's odd to characterize a court session as calm because there had
been no fireworks duting the proceedings. Yet, in a case where bitter
exchanges with the judge and the prosecution were par for the course,
we felt that stretches of time where no one was being ejected, or no
one was shouting epithets, were moments of calm.

Although the proceedings on August 2 had those stretches of time
that were calm by comparison to other occasions, it began as if it were
going to be a brutal day. Before Fassnacht took the stand, Judge Sabo
announced that he would be tightening his grip on the defense because
we had been plastering the city with subpoenas. "I think it is time for
the court to take back reins on the defendant here," he announced as
soon as he took the bench. "Because I have been a little, I guess a little
bit lax. I don't know if it's lax, but it's like leaving a bull unattended in
a china shop that just goes through and knocks everything down."

It never took much for Rachel to tangle with the judge, and these
remarks not unexpectedly rankled her. "Your Honor," she declared,
"before we get to that, you indicated that you wanted us to proceed
per our petition. And I would inform the court that claim number
nine deals with the geographical and racial disparity question." Rachel
was referring to our allegation that the jury pool was rigged to undercount
the number of minorities eligible for jury service.

Judge Sabo didn't pay attention to Rachel's point, which was a
good one. We were certainly entitled to present evidence to substantiate,
if we could, this particular claim. Rachel kept arguing.

"Counselor, Counselor!" Judge Sabo yelled. Rachel kept on arguing,
as if the judge were actually interested in hearing what she
had to say. "Counselor! No more! I have ruled on that issue, you
have an exception." Rachel kept going, and I sat there amazed. I
wondered if she had taken lessons in oratory from MOVE members,
who also had an unbelievable ability to engage in rapidfire speech
and intense focus even when facing a hostile crowd. "If you keep
talking," the judge warned, "you are going to find yourself up in the
cell room. I am telling you I have ruled on that. You have an exception
to my ruling."

The threat of jail didn't deter Rachel; I'm not sure she even heard
the threat. "Your Honor-" She couldn't finish the thought.

"All right! Sheriff! Take her out of here, please!" Judge Sabo wasn't
kidding. Several armed officers took Rachel by the arms, pinned them
behind her and handcuffed her. She stood at the podium the entire
time that she was being handcuffed, glaring at the judge. One officer
took her by the arm and guided her down the center aisle. Len and
I sat there paralyzed. In fact, the courtroom had never been that quiet
during the entire three-week proceedings. Everyone just watched the
arrest process unfold. As cantankerous and abusive as he was, Sabo
had always been quite predictable in how he handled courtroom
events. He'd chastise, ridicule, threaten with contempt-a range of
responses that were never too dynamic. What immobilized Len and
me, and what stunned the entire crowd in the courtroom, was the
fact that Sabo's arrest order was like a bolt out of the blue. Rachel's
conduct was hardly the most brazen act to be perpetrated in the courtroom.
Len's earlier command to the judge not to leave the bench, and
my audacious interruption of him during Harkins's testimony, seemed
to involve more effrontery than Rachel's insistence on completing her
statement. It all came down to timing and personality: Sabo was getting
fed up with us (as we were with him), and he simply disliked
Rachel far more than he did Len and me.

Rachel was taken to a holding cell upstairs, where she stayed for
a few hours.

"I am telling you, I will not tolerate this," Judge Sabo muttered,
as the audience shuffled and stirred. "When I make an order, that's
it." He called a recess to collect himself.

We immediately visited Rachel in the holding cell, and she was
buoyant. She didn't want to talk about her situation, only how we
planned to proceed that day. Len kept reassuring her that things would
be okay, that we would get her out, while she repeatedly tried to
reassure us that she was unafraid. I'm convinced that, in fact, she was
unafraid. I certainly had my differences with Rachel, but I never
doubted her commitment to her politics and to Mumia's case. Her
poise that morning, both in the courtroom and in the lockup, conveyed
a strength that Len and I fed off. I doubt that I would have
been so collected if it were me handcuffed and dragged from the
courtroom.

Rachel later begrudgingly apologized to the judge, after we insisted
that she do so, because Judge Sabo was making noises about removing
her from the case. His actions were extreme, even for him. The daily
chants out in the couttyard were apparently getting under his skin.
Muffied sounds of "Freedom Now!" "Free Mumia!" "Sabo Must Go!"
from the city hall courtyard below provided background music to the
proceedings. On the day that Rachel was arrested, Judge Sabo, for the
first time, angrily ordered the arrests of the protestors outside. Fortunately
for the protestors, word reached them about Judge Sabo's
order before sheriff's officers could apprehend them.

***

If Jackson had a defense strategy, it was developing the theoty that
the actual shooter fled the scene moments before the police arrived.
Dessie Hightower, the young accounting student, carried the weight
of that strategy through his testimony of seeing someone run eastbound
after he heard the pops of gunfire. Robert Chobert and Veronica
Jones were supposed to share the load, but they recanted their
initial claims of flight from the crime scene. Debbie Kordansky, a
fourth witness to flight whom Jackson forgot about until the night
before he needed her, simply refused to appear in court.

We believed Jackson was on the right track, and thus pursued the
flight theory, dedicating ourselves to presenting explanations as to why
Jackson's efforts to develop that defense met with failure. Len liked
to tell the press that the fact that four eyewitnesses spontaneously told
investigators about flight proved definitively that there was another
person at the scene of the shooting, aside from Cook, Faulkner, and
Mumia. "Were these witnesses hallucinating?" he would ask rhetorically.
I was struck by the consistency in the reported observations. All
four claimed to see someone flee eastbound in the direction of a
nearby alleyway. I've visited that alleyway numerous times and was
impressed by its potential as an escape route. Jones and Chobert both
asserted that two people "ran away," with the added wrinkle from
Chobert that one of the fleeing persons was Billy Cook, who returned
to the crime scene when the flashing turret lights of oncoming police
cars made running useless. What was important to me was that the
consistency in the description of flight refutes any suggestion that what
these people saw was nothing more than a scattering of people away
from the eruption of gunfire. Moreover, their observations were provided
to investigators, not to give them a sense of the ambience of
the crime scene in the wake of gunfire but to assist them in apprehending
the actual perpetrator.

On August 3, we began putting on evidence to substantiate this
proposition that a third person, probably a passenger in the Volkswagen,
killed Officer Faulkner.

***

It would seem unnecessary to disrupt Dessie Hightower's life again
by having him testify during these proceedings in view of the fact that
he had provided testimony of flight at the 1982 trial. Hightower was
never one who relished his involvement in this case. McGill had noted
back in April 1982 that Hightower did not want to be involved. But
if the police and prosecution had manipulated other witnesses, we
reasoned, they probably tried to do the same to Hightower. We put
him on the stand as our first witness on Thursday, August 3, to substantiate
our suspicions, but not before detectives almost arrested him
two weeks earlier.

On July 17, at about 8:00 P.M., detectives appeared at Hightower's
home and banged on his door. Hightower was home with the flu.
When he answered the door and noticed the badges held up against
his face, he tried to reclaim as much focus as he could. The detectives,
according to the prosecutors, were only there to subpoena the young
man; Hightower, however, explained to us that they were there to
arrest him because he had not appeared in Sabo's courtroom to testify
pursuant to the defense subpoena-an account that was consistent
with the fact that Judge Sabo had indeed issued a warrant for his
arrest. Fortunately, they accepted Hightower's assurance that he would
come into court as soon as he could overcome his illness. When we
learned of these events, we complained bitterly. Why would detectives,
the prosecurion, and even Judge Sabo be concerned about the appearance
of a witness who we subpoenaed? The prosecutors knew that
Hightower was our witness, and his attendance was, therefore, our
concern. It was quite apparent to us that the practice of witness intimidation,
backed by the force of a judge, was alive and well in
Philadelphia.

In any event, Hightower testified at the PCRA hearing that he
had been interviewed by police on two occasions: shortly after the
police took control over the crime scene, and then six days later. On
both occasions he told police that he had seen someone flee eastbound
on Locust Street before police arrived on the scene. The first police
interview went by without incident and was conducted quickly. The
interviewing detective wrote down Hightower's statement on a police
form and had him sign it.

But on December 15, Hightower was summoned back to the
precinct. He arrived at about 4:00 P.M., expecting to be there only
for a few minutes, probably to clarify some minor point. He was kept
there for over five and a half hours. A detective launched into questions
about what Hightower had seen, and the young accounting student
explained again, patiently, that he had seen someone run
eastbound on Locust Street, past a hotel that was on the block. The
detective seemed skeptical, bordering on annoyed. He pressed Hightower,
asking if he had seen Mumia fire a gun. Hightower got the
feeling that the detective didn't believe him.
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