Live From Death Row, by Mumia Abu-Jamal

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Afterword

The trial of Mumia Abu-Jamal Leonard I. Weinglass Attorney for Mumia Abu-Jamal

In one of the most extraordinary trials in recent history, Mumia Abu-Jamal, a leading African-American broadcast journalist in Philadelphia, aptly dubbed, "the voice of the voiceless," was put on trial in June 1982 and sentenced to death for the murder of a white police officer. The case was tried before the Honorable Albert Sabo, notorious for having put more people on death row than any other sitting judge in the United States. Before ascending to the bench, he served as the undersheriff in Philadelphia for sixteen years. No less distinguished was the tough and experienced prosecutor who had previously obtained the murder conviction of an innocent man. [1] After the defendant in that case had served twelve years for a crime he didn't commit, the district attorney's office successfully petitioned the court for his release based on evidence that indicated that the defendant had not committed the crime, and following an investigation into the original trial evidence and testimony.

The only inexperienced actor in Mumia's case was the court-appointed attorney, who was thrust into the role of defense counsel after Mumia was stripped of his right to represent himself midway through jury selection. The attorney repeatedly sought to be relieved as assisting counsel to Mumia during pretrial hearings.

It would have been impossible for counsel to defend Mumia effectively no matter what his skill and dedication. The court allocated only $150 pretrial to the defense for the investigation of the case despite the fact that the police investigators had conducted more than 125 witness interviews. By trial time, the defense had succeeded in locating just two eyewitnesses, although aware that there were many more. In a desperate last-minute move, Mumia's attorney frantically tried to convince a key eyewitness to come to court by calling on the judge's telephone while the jury sat waiting in the courtroom. The effort failed. While the prosecution presented experts on ballistics and pathology, the defense was prevented from doing so due to the paltry sums allocated by the court for that purpose.

On the third day of jury selection, the court barred Mumia from further questioning of prospective jurors. Reluctantly, and obviously unprepared, his court-appointed attorney was compelled to take over. Although seventy-seven of the first eighty jurors had heard or read of the case, necessitating a probing inquiry into what opinions, if any, they had formed, the court became impatient with the process, claiming that Mumia's questions intimidated jurors. Some court observers believed that the court's action might more plausibly be attributed to the fact that Mumia's professional training in broadcast journalism was creating too favorable an impression.

Under pressure from the court to expedite the selection process, which at one point included threatening Mumia's lawyer with contempt, a jury was selected that included a man whose best friend was a former Philadelphia police officer on disability after being shot while on duty, as well as an alternate juror whose husband was a Philadelphia police officer. Counsel inexplicably failed to object or even make note of the prosecution's racially skewed use of eleven of fifteen peremptory challenges to remove African-American jurors. He even consented to the judge's summary dismissal, in Mumia's absence, of an African-American juror who had already been selected, replacing her with an older white male, who refused to answer whether he could keep an open mind, saying he didn't think he "could be fair to both sides."

The prosecution presented its case in less than seven days. Mumia was not present during most of it, having been removed from the courtroom for insisting on his right to self-representation, as well as the assistance of John Africa at counsel table. With his life on the line, he argued that he was being defended by a lawyer who was not only unqualified but unwilling to represent him. Nothing was done to assist Mumia in following the proceedings, such as transmission into his holding cell or the provision of a transcript. Not only was this a departure from common practice, but it was particularly damaging since it was Mumia, and not his attorney, who had prepared the case. Without Mumia's presence or assistance, his attorney could only feebly attempt to cross-examine the prosecution's witnesses.

That the police officer had been shot on a public street at 4 A.M. on December 9, 1981, after having stopped Mumia's brother's car was undisputed. That Mumia arrived at the scene moments after the officer had pummeled his brother with his flashlight was also undisputed. Mumia was shot, presumably by the same officer, since the bullet taken from his body matched that of the officer's gun. Mumia remained in critical condition for a period of time following emergency surgery. Nonetheless, his case was rushed to trial within six months without a continuance. After announcing that he would defend himself, Mumia was given just three weeks to prepare his case for trial.

The prosecution's case relied mainly on the testimony of four witnesses who claimed to be at or near the scene of the shootings. The court had refused all requests to have these witnesses attempt an identification of Mumia in a lineup, instead allowing him to be identified as he sat at counsel table or through photographs in his absence. The most damaging witness was a female prostitute who had a record of over thirty-five arrests and was serving a sentence in Massachusetts. She testified that she saw Mumia shoot the officer by running up behind him, shooting him once, and then firing again after he fell to the sidewalk. Previously, she had given a number of differing accounts, most of them contradicted by the other three witnesses. Another prostitute who was working the same area that night testified she was offered the same deal as the prosecution's witness: immunity from arrest by the police in return for her testimony against Mumia.

Of the three remaining witnesses, all male, two said they saw Mumia run to the scene where the police officer was beating Mumia's brother. Both testified that gunfire erupted shortly after Mumia arrived, but neither one saw Mumia shoot the officer. The third witness, a cabdriver who had pulled up behind the police car, was closest to the shooting. He told police that the shooter fled the scene, before more police arrived, by running to where an alleyway intersects the sidewalk some thirty yards away. The shooter was a large, heavy man, over six feet two and weighing more than 225 pounds. Mumia is six feet one and weighed a scant 170 pounds. At trial this witness denied that the shooter ran away, insisting instead that he took just a few steps and then sat down on the curb at the precise point where the police found Mumia, slumped over and bleeding profusely from his wound. The judge kept from the jury the fact that this witness had previously been convicted of throwing a Molotov cocktail into a public school for pay and was then on parole. He might have altered his testimony to curry favor with the prosecution or even out of fear. Another witness, a nearby resident, also reported seeing a man flee the scene in the same direction. She was the witness that defense counsel couldn't produce after contacting her on the judge's telephone midway through trial. A third witness, a prostitute, told the authorities that she also observed one or two men running from the scene, but recanted her story after lengthy questioning by the police. In all, four witnesses situated in four separate locations on the street -- none of whom knew each other or Mumia -- reported seeing the shooter flee, and all had him going in precisely the same direction. It's simply impossible that all four were hallucinating about the very same thing. Nonetheless, no investigation was made to locate or identify the fleeing suspect.

The prosecution's theory was that Mumia first shot the officer, wounding him slightly. When the officer returned fire and hit him, Mumia, angered, stood over the officer, who had since fallen to the sidewalk, and shot him in the face, killing him instantly. None of the witnesses, however, saw it that way. None even saw Mumia get shot. That theory was constructed out of the simple fact that the police found both Mumia and the officer lying within several feet of each other on the sidewalk, both wounded from gunshots. Although Mumia's gun was found at the scene (he had a permit to carry a weapon because he had been robbed as a cabdriver), the prosecution's expert claimed he could not match the bullet recovered from the officer's body to Mumia's gun due to the fragmented nature of the bullet.

To add weight to its somewhat shaky thesis, unconfirmed by the incredible prosecution witnesses, the prosecution produced a security guard who worked at the hospital where Mumia was taken for treatment. She testified that Mumia, an experienced journalist who had covered scores of court cases, openly confessed to everyone within earshot that he had shot the policeman, adding for emphasis, "I hope the motherfucker dies." But the officer who took Mumia into custody and stayed with him stated in his written report that Mumia remained silent throughout the entire time he was with him. His testimony, however, like that of the missing eyewitnesses, was not produced at trial. The officer who reported these events was "on vacation" when he should have been available to be called by the defense. A defense request to continue the case a few days until his return was denied.

Not able to produce the witnesses it needed to rebut the prosecution's case, the defense relied instead on the testimony of sixteen character witnesses. All testified that Mumia could not possibly have committed such a crime because he was known both professionally and socially as a gentle and decent man. When one character witness, the noted author and poet Sonia Sanchez, took the stand, the prosecutor questioned her, over objection, about the irrelevant fact that she had written the foreword to Assata Shakur's (Joanne Chesimard's) book, Assata Speaks. Then, with the court's blessing, he launched into a highly prejudicial and improper line of questioning about Assata's conviction for killing two police officers in New Jersey; inquiring, further, whether Sanchez also politically supported three New York men who had been convicted of killing police. Thus the prosecutor insinuated that Sanchez made a habit of supporting police killers, and that, by implication, Mumia must be one. In so doing, the prosecutor not only committed prosecutorial misconduct but set the stage for what later became an all-out attack on Mumia's politics.

The jury began deliberations at noon on the Friday of the Fourth of July weekend. By then they had been sequestered in a downtown hotel and away from their families for almost three weeks. Not surprisingly, before the day was over they had reached a verdict -- guilty of first-degree murder. However, they were unable to do so without first requesting, following several hours of deliberation, that they be reinstructed on the law of third-degree murder and manslaughter. Evidently, at least some jurors were troubled by the fact that, even if they accepted the prosecution's theory of the case, the element of premeditation was lacking because the officer was not shot fatally until after Mumia himself was shot; and then, presumably, as the result of an unpremeditated reaction. With the jury thus conflicted on the lesser charges of manslaughter and third-degree murder, no one anticipated this same jury would vote the death penalty.

The key to understanding why they did lies in what transpired during that part of the case that followed, referred to as the penalty phase. It is then that both sides present evidence bearing on the-issue of whether a sentence of life without parole or a sentence of death should be imposed. In a clear violation of Mumia's constitutional rights, the prosecution presented evidence of Mumia's background as a member of the Black Panther Party some twelve years earlier and his political beliefs as reported in a newspaper interview when he was just sixteen years old. Beyond doubt Mumia is on death row because of those political beliefs and associations. The ensuing portion of the transcript reads like a grotesque chapter out of the Inquisition.

It began when Mumia rose at counsel table to read a statement to the jury, exercising the time-honored right of allocution that all convicted persons have prior to being sentenced. He was not sworn as a witness and did not take the stand. In his statement he expressed his innocence and eloquently claimed that the proceedings were unfair. Stunned by Mumia's accusations against his handling of the case, the judge ruled that Mumia had made himself a witness and could be cross-examined in front of the jury. The prosecutor only too eagerly rose to the occasion.

First, Mumia was asked why he didn't stand for the judge when he entered the courtroom. That irrelevant and prejudicial inquiry was followed in rapid succession by a series of questions about why Mumia didn't accept the court's rulings without rancor, shouted at an appellate judge when his right to control his own case was taken away, and engaged in a hostile exchange with the court during pretrial hearings. As if to answer these questions, the prosecutor read from a twelve-year-old newspaper article about the Black Panther Party that contained, among other things, an interview of Mumia when he was just sixteen years old. [2] With his voice rising, the prosecutor demanded to know whether Mumia had ever said that "political power grows out of the barrel of a gun." Mumia calmly responded that the quote did not originate with him but was a well-known dictum of Chairman Mao Ze-dong of the People's Republic of China. Continuing without letup, the prosecutor asked if Mumia could recall having said, in the same interview, "All power to the people." Again Mumia acknowledged the quote but insisted on the right to read extensively from the news article in order to place his comments in context. The article, which had previously been kept out of evidence by the court for being too prejudicial, included references to the Black Panther Party, the breakfast program, and the party's ongoing dispute with the Philadelphia Police Department.

Having thus portrayed Mumia as a radical black militant to this nearly all-white jury, the prosecutor argued in summation that it was Mumia's political history and disrespect of the system that caused him to kill the policeman. The jury returned a verdict of death, after being allowed to focus on the irrelevant quoted words of a sixteen-year-old, and disregarding the fact that Mumia had grown into manhood without a single conviction on his record, had a family, and the abiding respect and admiration of the community.

The appeal that followed was no less irregular. A year passed before Judge Sabo got around to formally pronouncing the sentence of death. Mumia's first assigned appellate attorney did nothing for an additional year and had to be removed from the case by the appellate court. His replacement counsel required another year to reconstruct events and file the necessary papers. Part of that reconstruction was an affidavit from Mumia's trial attorney testifying to the number of African-Americans who had been removed from the jury. Due to the passage of time, the Pennsylvania Supreme Court disregarded the affidavit, alleging that the attorney's memory had faded in the interim. All relief was denied. Only four justices, the minimum number required, signed the court's opinion. [3] One of the four, Justice McDermott, clearly should have disqualified himself, because he had been involved in a direct and personal court confrontation with Mumia, but didn't. Chief Justice Nix, an African-American, inexplicably removed himself from the case, as did another justice, Justice Larson, also without comment. That justice had been accused of racial bias by the chief and was later prosecuted for a minor drug offense, convicted, and subsequently removed from the bench following impeachment by the Pennsylvania Senate.

The court's opinion, a particularly vituperative fifteen-page document, possibly the result of Justice McDermott's personal encounter with Mumia, rejected all of Mumia's claims respecting constitutional and trial errors. Sanctioned was the prosecutor's racially skewed use of peremptory challenges, the court's deprivation of Mumia's right to defend himself and be present, and the improper cross-examination of both Sonia Sanchez and Mumia. Most remarkably, the prosecutor's argument to the jury that Mumia would have "appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final," was upheld. That precise argument, undermining the need of the jury to confront the finality of what they were being asked to do, was specifically rejected by the U.S. Supreme Court in 1985. [4] Earlier the Pennsylvania Supreme Court had reversed a state conviction that, ironically, was based on a summation given by the very same prosecutor using the nearly identical argument he made in Mumia's case. [5] The court chose to ignore both these precedents and affirmed Mumia's death sentence.

Mumia fared no better with the U.S. Supreme Court. It refused to even consider his appeal. [6] However, that same year it accepted, and decided favorably, a case in which a member of the Aryan Brotherhood, a white racist organization, complained that the prosecution had improperly used the fact of his political association against him in the penalty phase of his trial. Ruling that the First Amendment to the Constitution bars such evidence, the Court reversed his death sentence. [7] Mumia's petition to be joined in this appeal was denied without comment.

Now, more than twelve years after his conviction, Mumia is seeking a new trial in the state courts of Pennsylvania. If denied, he plans to file a habeas corpus petition in the federal courts. However, new restrictions imposed by the U.S. Supreme Court on habeas corpus severely restrict his ability to obtain any relief.

For the first time, his case is being investigated. Evidence has already been found in support of his innocence. However, investigating his case more than a decade after the event has proven both difficult and expensive.

At the time of this writing, a death warrant has not yet been signed by the governor. But because of the November 1994 election of Republican governor Thomas Ridge who ran, in part, on expediting executions, there is danger that in early 1995 an execution date will be set. Mumia is near the top of the list of those awaiting the signing of a warrant, so we are in a race against time to save this innocent and, as the preceding pages attest, eloquent "voice of the voiceless." In the words of Ossie Davis, cochair of the Committee to Save Mumia Abu-Jamal, "We need Mumia desperately. At a time like this, we cannot afford to let them take such a voice from us without putting up a fight of enormous proportions."

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Notes:

1. Commonwealth v. Connor.

2. Philadelphia Inquirer, January 4, 1970.

3. Commonwealth v. Abu-Jamal 521 Pa. 188, 555 A.2d 846 (1989).

4. Caldwell v. Mississippi 472 U.S. 320 (1985).

5. Commonwealth v. Baker 511 Pa. 1, 511 A.2d 777 (1986).

6. Pennsylvania v. Abu-Jamal 498 U.S. 881 (1990).

7. Dawson v. Delaware 503 U.S. 159 (1992).

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About the Author

Mumia Abu-Jamal was born April 24, 1954, in Philadelphia.

At the time of his arrest on December 9, 1981, on charges of murder of Philadelphia police officer Daniel Faulkner, Mumia Abu-Jamal was a well-known Philadelphia-based African-American journalist and activist. He was the president of the Philadelphia chapter of the Association of Black Journalists. The January 1981 issue of Philadelphia magazine had named him "one of the people to watch in 1981."

During the period of 1970-1981 he was a widely acclaimed and Corporation for Public Broadcasting award-winning journalist, known as "the voice of the voiceless" as a result of his news broadcasts on National Public Radio, Mutual Black Network, and National Black Network, and did daily reports on WUHY (now WHYY) and a number of other stations.

From his youth, Mumia was a political activist. At age fourteen, he was beaten and arrested for protesting a presidential rally for George Wallace. In the fall of 1968, he became a founding member and Lieutenant minister of information of the Philadelphia chapter of the Black Panther Party. During the summer of 1970, Mumia worked at the Black Panther Party newspaper in Oakland, California, returning to Philadelphia shortly before the Philadelphia police raid on all three offices of the Black Panther Party.

While working as a journalist during the 1970s, Mumia published some hard-hitting criticism of the Philadelphia Police Department and the Rizzo administration, which also made him a man for them "to watch." He rejected Rizzo's version of the 1978 siege of the MOVE organization's Powelton Village home by more than six hundred heavily armed officers, and his tireless advocacy resulted in his being fired from his broadcast job. He had to work as a night-shift cabdriver to support his family.

He was driving a cab the night of December 9, 1981, when he was shot and beaten by police and charged with the murder of a police officer. He was put on trial within six months, and on July 3, 1982, he was convicted of murder and sentenced to death. His appeal to the Pennsylvania Supreme Court was denied in March 1989, and the U.S. Supreme Court has refused review of his case. A petition for postconviction relief is now being prepared for filing in the state courts.

For thirteen years he has been on death row in Huntingdon prison. He has been a working journalist from death row for over five years -- his commentaries have been printed in dozens of newspapers (at least forty are known) throughout the United States and Europe. In January 1991 his commentary on life on death row and the impact of the McCleskey case was featured in the Yale Law Journal.

In 1994 his scheduled commentaries for National Public Radio's All Things Considered, "Live from Death Row," which described life behind bars in Huntingdon, caused such controversy that they were abruptly canceled, sparking intense debates across the country about censorship and the death penalty.

For more information on racism, the death penalty, and what you can do, contact:

International Concerned Friends & Family of Mumia Abu-Jamal
P.O. Box 19709
Philadelphia, PA 19143
215-476-8812 phone & fax

Equal Justice USA, A Project of the Quixote Center
P.O. Box 5206
Hyattsville, MD 20782
301-699-0042 phone
301-864-2182 fax

Free Mumia Abu-Jamal Coalition
P.O. 650
New York, NY 10009
212-330-8029

Committee to Save Mumia Abu-Jamal
P.O. Box 163
Amsterdam Ave. #115
New York, NY 10023-5001

Partisan Defense Committee
P.O. Box 99
Canal St. Station
New York, NY 10013
212-406-4252

Western PA Committee to Free Mumia Abu-Jamal
P.O. Box 10174
Pittsburgh, PA 15232-0174

Art & Writings Against Death Penalty
164 Lexington Ave.
Jersey City, NJ 07304
201-435-3244

Freedom Now Network!
2420 24th St.
San Francisco, CA 94110
415-648-4505

Just Justice
c/o Claude Pujol, UFR d'anglais, 3
Rue des Tanneurs, 37041
Tours Cedex France
33-47-61-69-37 phone

Refuse & Resist!
305 Madison Ave., Suite 1166
New York, NY 10165