A Life in the Balance: The Case of Mumia Abu-Jamal, by Amnes
Posted: Tue Jul 29, 2014 1:27 amA LIFE IN THE BALANCE: THE CASE OF MUMIA ABU-JAMAL
by Amnesty International
NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT
PART 1 OF 2
February, 2000
Amnesty International February 2000 AI Index: AMR 51/01/00
[PICTURE]
Mumia Abu-Jamal in a visiting room at SCI Greene, Pennsylvania. Photo: Copyright k.i.pedizisai/cipher 1996
UNITED STATES OF AMERICA
A Life in the Balance The Case of Mumia Abu-Jamal
Introduction
Mumia Abu-Jamal has been incarcerated on Pennsylvania’s death row for the past 17 years. His case has generated more controversy and received more attention, both national and international, than that of any other inmate currently under sentence of death in the United States of America (USA).
Mumia Abu-Jamal, black, was convicted and sentenced to death in July 1982 for the murder of white police officer Daniel Faulkner on 9 December 1981. He has steadfastly maintained his innocence since 1981. Since the trial, those advocating his release or retrial have contested the validity of much of the evidence used to obtain his conviction. These accusations have been countered by members of the law enforcement community and their supporters, who have agitated for Mumia Abu-Jamal’s execution while maintaining that the trial was unbiased and fair.
In light of the contradictory and incomplete evidence in this case, Amnesty International can take no position on the guilt or innocence of Mumia Abu-Jamal. Nor has the organization identified him as a political prisoner, although it has previously expressed its concern over the activities of a government counterintelligence program, which appeared to number Abu-Jamal among its targets (see page 24). However, the organization is concerned that political statements attributed to him as a teenager were improperly used by the prosecution in its efforts to obtain a death sentence against him. In any event, the administration of the death penalty in the USA remains a highly politicized affair, sanctioned and supported by elected officials for its perceived political advantages. The politicization of Mumia Abu-Jamal’s case may not only have prejudiced his right to a fair trial, but may now be undermining his right to fair and impartial treatment in the appeal courts.
After many years of monitoring Mumia Abu-Jamal’s case and a thorough study of original documents, including the entire trial transcript, the organization has concluded that the proceedings used to convict and sentence Mumia Abu-Jamal to death were in violation of minimum international standards that govern fair trial procedures and the use of the death penalty. Amnesty International therefore believes that the interests of justice would best be served by the granting of a new trial to Mumia Abu-Jamal (see conclusion).
In October 1999, Abu-Jamal filed his initial federal appeal. The federal courts represent Abu-Jamal’s final opportunity to have many of the troubling issues in his case addressed and corrected. However, as discussed below, the 1996 Anti-terrorism and Effective Death Penalty Act severely limits the federal courts’ ability to ensure that legal proceedings at state-level guaranteed the defendants’ rights enshrined in the US Constitution and under international human rights standards. Amnesty International has chosen this time, a time when Abu-Jamal’s life is in the balance, to release this report.
Mumia Abu-Jamal is one of more than three and a half thousand people on death row in 37 states and under federal law throughout the USA. By the end of 1999, 598 prisoners had been put to death in 30 states since executions resumed in 1977; in 1999 alone, 98 prisoners died at the hands of the state, a record year since the 1950s. The US authorities have repeatedly violated international minimum safeguards in their continuing resort to capital punishment. Violations include the execution of the mentally impaired, of child offenders, and of those who received inadequate legal representation at trial. Those sentenced to death in the USA are overwhelmingly the poor, and disproportionately come from racial and ethnic minority communities. The risk of wrongful conviction remains high, with more than 80 prisoners released from death rows since 1973 after evidence of their innocence emerged. Many came close to execution before the courts acted on their claims of wrongful conviction. Others have gone to their deaths despite serious doubts concerning their guilt.
Amnesty International unconditionally opposes the death penalty under all circumstances. Even if it were possible for a country to create a judicial system entirely fair and free from bias and error, the punishment of death would still violate the most fundamental of all human rights. Each death sentence and execution is an affront to human dignity: the ultimate form of cruel, inhuman and degrading punishment.
In opposing the death penalty, Amnesty International in no way seeks to minimize or condone the crimes for which those sentenced to death and executed were convicted. Nor does the organization seek to belittle the appalling suffering of the families of murder victims, for whom it has the greatest sympathy. However, the finality and cruelty inherent in the death penalty render it incompatible with norms of modern day civilized behaviour and an inappropriate and unacceptable response to violent crime.
The continued and accelerating use of the death penalty is one of many serious human rights violations that Amnesty International has identified and repeatedly raised with the US authorities. These other concerns include a nationwide pattern of police brutality; the physical and sexual abuse of prisoners, inhuman or degrading conditions of confinement and the mistreatment of asylum seekers. [1]
The backdrop: Philadelphia, a city of racial tensions, police brutality and police corruption
The shooting of Officer Daniel Faulkner in 1981 and Mumia Abu-Jamal’s trial the following year took place in Philadelphia, a city fraught with tension between the predominately white authorities and the African American and other minority communities. Both before and since that time, numerous instances have come to light of police brutality and the use of disproportionate force with lethal consequences; of the corruption of police officers and the fabrication of evidence against those suspected of criminal acts. [2]
In 1973, a federal judge for the US District Court stated that police abuse occurred with such frequency in Philadelphia that it could not be “dismissed as rare, isolated instances” and that city officials did “little or nothing” to punish or prevent police abuse.
In 1979, the US Department of Justice filed a lawsuit against the then-mayor of Philadelphia, Frank Rizzo, and other city officials for condoning police brutality. The lawsuit listed 290 persons shot by the city’s police officers between 1975 and 1979, the majority of whom were from ethnic minorities. During Frank Rizzo’s eight years as mayor, fatal shootings by Philadelphia police officers increased by 20 per cent annually. In the year after he left office, 1980, fatal shootings declined 67 per cent. [3] Mayor Rizzo appeared to tolerate police misconduct. In 1978, he told an audience of 700 police officers “Even when you’re wrong, I’m going to back you”. [4]
An investigation in 1978 by the Pennsylvania House of Representatives Sub-Committee on Crime and Corrections found that a small but significant number of Philadelphia police routinely engaged in verbal and physical abuse of citizens to a degree the subcommittee considered “lawless”. The investigation concluded that the level of police abuse had reached that of homicidal violence and that Philadelphia lacked the necessary police leadership to control the lawlessness.
Also in 1978, the police became involved in a siege of a house occupied by members of MOVE. [5] During an attempt to force the occupants to leave the building a shot was fired, causing the police to open fire at the house (it is disputed whether the police or those in the house fired the initial shot). At this time, one police officer was fatally wounded; MOVE members later maintained that the police officer was killed by gun fire from other officers. As the occupants surrendered to the police, television cameras filmed a police officer striking Delbert Africa (all members of MOVE adopt the second name of Africa) with the butt of a shotgun and then dragging him along the ground as other police officers kicked him. Police bulldozed the house to the ground the following day, destroying the crime scene and making analysis of many of the day’s events impossible. [6] Nine members of MOVE were tried on charges of third degree murder, conspiracy, and multiple counts of attempted murder and aggravated assault; all were found guilty and sentenced to 30 to 100 years in prison.
Mumia Abu-Jamal was closely involved with MOVE. It is highly likely that the officers who arrested him, although perhaps unaware of his identity, would have immediately associated him with the organization because of his dreadlocks, a hairstyle adopted by all members of MOVE as part of their beliefs. Abu-Jamal was also a former member of the Black Panther Party (BPP) and was under surveillance by the FBI’s Counterintelligence Program, COINTELPRO (see box). [7] Prior to his arrest, Abu-Jamal worked as a journalist and had written articles critical of the authorities in Philadelphia. To supplement his income, he was working as a taxi cab driver at the time of the crime.
The crime: the shooting of police officer Daniel Faulkner
On 9 December 1981, at approximately 3.55am, Officer Daniel Faulkner of the Philadelphia Police Department stopped a car driven by Mumia Abu-Jamal’s brother, William Cook. A struggle ensued between the two men. Mumia Abu-Jamal, who was driving a cab in the vicinity, observed his brother in an altercation with the officer and got out of his vehicle. Minutes later, more police officers arrived on the scene to find Officer Faulkner dead from two bullet wounds to the head and back. Mumia Abu-Jamal was sitting nearby wounded in the chest by a bullet from the police officer’s gun. Abu-Jamal’s own legally-registered gun was found a few feet away from where he sat.
Media coverage of the case as it proceeded to trial referred extensively to Abu-Jamal’s affiliations with MOVE and his former membership in the Black Panther Party. The continual references to Abu-Jamal’s past political activities caused Joe Davidson, president of the Association of Black Journalists to state “[w]e are disturbed by disparaging news reports about Mr. Jamal's political and religious beliefs. As an organization dedicated to truth and fairness in journalism, we will continue to monitor media coverage on this matter. We hope that Mr. Jamal will be tried in the courtroom and not in the press.” [8] Following investigations by the authorities, pre-trial hearings in the case began on 5 January 1982. On 7 June 1982, the trial of Mumia Abu- Jamal on a charge of first degree murder and possession of an instrument of crime commenced in Philadelphia, amid intense publicity.
The trial judge: an independent and fair arbiter of justice?
Where a defendant has selected trial by jury, the ultimate disposition of the case rests with the jurors and not with court officials. But the overall conduct of the trial is the responsibility of the presiding judge and jurors look to the judge for guidance and instruction on the complex legal issues before them. Any hint of bias from the bench may thus have a profound effect on the jury’s deliberations.
The trial of Mumia Abu-Jamal was presided over by Judge Albert F. Sabo. His history of involvement with the police and law enforcement community has raised concerns that he was not the most suitable choice of official to oversee the trial of a defendant accused of killing a police officer. Albert Sabo was an Undersheriff of Philadelphia County for 16 years before becoming a judge in 1974. His official biography lists him as a former member of the National Sheriffs Association, “retired Fraternal Order of Police” (FOP) and as associated with the Police Chiefs’ Association of South East Pennsylvania. [10] As a judge he was no stranger to the death penalty. Over a period of 14 years, he presided over trials in which 31 defendants were sentenced to death, more than any other US judge as far as Amnesty International is aware. Of the 31 condemned defendants, 29 came from ethnic minorities. [11]
The judicial conduct of Judge Sabo has been a cause for concern to many members of the Philadelphia legal community for a number of years. A 1983 Philadelphia Bar survey found that over one third of the responding attorneys considered Judge Sabo unqualified to be on the bench. When asked about the survey, Judge Sabo appeared to reveal his bias against the defence by stating that if he were a defence attorney “I wouldn’t vote for me either”.
In 1992 the Philadelphia Inquirer reviewed 35 homicide trials presided over by Judge Sabo. [12] The investigation concluded that: “through his comments, his rulings and his instructions to the jury” Judge Sabo “favored prosecutors”. According to the report, in one case, Judge Sabo even urged the prosecution to introduce evidence because “it would be helpful to [get] a conviction”. A review of the court records by the Inquirer showed “that most of the homicide judges in Philadelphia hear more murder cases than Judge Sabo with fewer death sentences.” In the same article, the Inquirer also concluded: “The assignment of a judge, like the naming of a lawyer, can be a life-or-death matter for a murder suspect. Some, like Judge Albert F. Sabo, are viewed as prosecution-minded. Others are seen as more favorable to defense. One report likened the system to a ‘crap shoot’.”
Throughout Abu-Jamal’s trial - a trial to determine whether the defendant would live or die - Judge Sabo appeared to be more concerned with expediency than fairness. For example, during the proceedings of 17 June, he stated “I don’t want to be held up on lousy technicalities...what do I care?” and “As far as I’m concerned, it can wait until lunchtime. Whatever you want to do, but let’s do something. I have a jury waiting out there”.
In 1995, defence lawyers requested that Judge Sabo recuse (i.e. remove) himself from presiding over an evidentiary hearing on whether Mumia Abu-Jamal’s original trial was fair, on the grounds of “his inability to endow this proceeding with... the appearance of fairness and impartiality”. Judge Sabo refused. During the hearing, he was openly hostile to the defence, causing one commentator to write: “[t]hroughout the internationally scrutinized post-conviction hearing, which ran from July 26 to August 15, and the closing arguments on September 11, Judge Sabo flaunted his bias, oozing partiality toward the prosecution and crudely seeking to bully Weinglass [a defence lawyer], whose courtroom conduct was as correct as Sabo’s was crass.” [13] On 16 July 1996, the Philadelphia Inquirer described Judge Sabo’s adjudication of the hearings: “The behavior of the judge was disturbing first time around -- and in hearings last week he did not give the impression to those in the courtroom of fair-mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense’s case.”
The defence: Mumia Abu-Jamal’s legal representation at trial
US death penalty procedures are a uniquely complex area of criminal law, in which even attorneys experienced in non-capital trials may fail to adequately represent their clients. Amnesty International has documented numerous cases of death row prisoners who were represented at trial by woefully inadequate defence attorneys. [15] Its concern over such cases is shared by other international human rights groups and inter-governmental bodies. In 1996, for example, the International Commission of Jurists (ICJ), an international non-governmental organization which takes no position on the death penalty per se, published a report that was highly critical of the legal representation afforded defendants in capital cases, concluding: “the administration of the death penalty in the United States will remain arbitrary, and racially discriminatory, and prospects of a fair hearing for capital offenders cannot (and will not) be assured” without substantial remedial steps. [16] The UN Human Rights Committee (HRC - the expert body empowered to monitor countries’ compliance with the International Covent on Civil and Political Rights - the ICCPR) has also made note of the concern over the “the lack of effective measures [in the USA] to ensure that indigent [poor] defendants in serious criminal proceedings, particularly in state courts, are represented by competent counsel”. [17]
At the time of Mumia Abu-Jamal’s trial, Pennsylvania had no minimum standards for those appointed to represent defendants on trial for their life. Attorneys in capital cases were not required to pass any special examinations or to have reached any level of experience in defending those facing trial on serious charges. [18]
Mumia Abu-Jamal was initially represented by a court-appointed attorney, Anthony Jackson. At a pretrial hearing on 13 May 1982, Abu-Jamal requested the court’s permission to represent himself at trial because he was dissatisfied with Jackson’s performance. [19] Judge Ribner, the judge overseeing the pre-trial hearings, granted his request but, over Abu-Jamal’s vigorous objection, appointed Jackson as backup counsel. Jackson also protested at being appointed as backup counsel, stating that he did not know what it entailed, but was told by the judge; “You can fight that out with Mr. Jamal.” Jackson was given no clarification by the court as to his role in the trial as backup counsel.
Since Mumia Abu-Jamal was obviously unable to conduct investigations due to his continued detention, his access to a fully prepared lawyer -- even as “backup counsel” -- was vital to ensure a fair hearing. In a sworn affidavit dated 17 April 1995, Jackson admitted to being “unprepared” for trial and that he “abandoned all efforts at trial preparation” three weeks before the start of the trial after Mumia Abu-Jamal had obtained the right to represent himself.
During jury selection on the third day of the trial, at the suggestion of the prosecution, Judge Sabo withdrew permission for Mumia Abu-Jamal to act as his own attorney -- supposedly only for the duration of jury selection. Judge Sabo based this decision on Abu-Jamal’s alleged slowness in questioning potential jurors and on the grounds that his status as an accused murderer instilled fear and anxiety in the jurors. However, Judge Sabo did concede that “...it is true I have not rebuked Mr. Jamal at any time [during jury selection].”
Jackson objected to the ruling, pointing out to Judge Sabo that “The last case I had before you, it took us nine days to select a jury and it certainly didn’t have as much publicity as this case”. Jackson noted that jury selection in another homicide case had taken five weeks to complete. He went on to state that “in all homicide cases, particularly in capital cases... jurors express some apprehension, some unsettlement, some fear with regard to the whole process.” These objections were to no avail, Judge Sabo continued to deny Abu-Jamal the right to represent himself.
The Philadelphia Inquirer described Abu-Jamal’s conduct prior to his removal as lead counsel as “intent and business like” and “subdued”. In the first two days of the trial, Abu-Jamal had questioned 23 prospective jurors, successfully challenging two for “cause” (bias), defeating a prosecution challenge for cause, and exercising two peremptory strikes (the right to remove a prospective juror without giving reasons).
Amnesty International’s own examination of the trial transcript found no justifiable reason for the revoking of Mumia Abu-Jamal’s right to question potential jurors. At no point during his questioning was he rude or aggressive and his examinations are very similar, in terms of length, to those of the prosecution. His questions were pertinent to the selection of a fair jury. The removal of Abu-Jamal’s right to represent himself at this point in the trial is not supported in any way by the record of the trial. Judge Sabo’s comment that “You have indicated to this court that you do not have the expertise necessary to conduct voir dire” (jury selection) is likewise not supported by the record.
After the jury had been selected and the trial proper began, Mumia Abu-Jamal resumed representing himself. However, the already tense relations between him and Judge Sabo deteriorated rapidly. It is clear from the exchanges between the two men that Abu-Jamal had come to the conclusion that he would be denied a fair trial by the court. His repeated requests to be legally represented by John Africa were denied by Judge Sabo, on the grounds that Africa was not a licensed attorney. [20] Mumia Abu-Jamal also requested that John Africa be allowed to sit at the defence table, in order to provide legal and tactical advice throughout the trial. This request was permissible under Pennsylvania law but was denied by Judge Sabo. When pressed by Abu-Jamal, who gave examples of other judges who had allowed non-lawyers to sit at the table of defendants, Judge Sabo stated that unless there was a legal precedent, he did not care what other judges did, and continued to refuse the request. Typical of the exchanges between Judge Sabo and Mumia Abu-Jamal is the following:
Judge Sabo: Mr. Jamal, it is quite evident to this court that you are intentionally disrupting the orderly procedure of this court. I have warned you time and again that if you continue with that attitude that I would have to remove you as counsel in this case.
Mumia Abu-Jamal: 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. I need counsel of choice, someone I have faith in, someone I have respect for; not someone paid by the same pocket that pays the DA, not a court-appointed lawyer, not a member of the ABA, not an officer of the court but someone I can trust and I have faith in. Your warnings are absolutely moot, they’re meaningless to me.
Shortly after this exchange, Judge Sabo prohibited Mumia Abu-Jamal from representing himself in court and Jackson was reappointed lead counsel. Jackson protested, but his request to be removed was rejected by Judge Sabo, who threatened the lawyer with disciplinary action, including imprisonment for contempt of court, unless he continued. [21] This left the defendant represented by a lawyer who was both reluctant to participate and ill-prepared for trial, effectively stripping Mumia Abu-Jamal of any meaningful legal representation. The following day, after a number of other angry exchanges between judge and defendant, Judge Sabo had Abu-Jamal physically removed from the courtroom.
For the remainder of the trial, Mumia Abu-Jamal was continuously readmitted to and removed from the trial. His behaviour in the courtroom became highly belligerent and disruptive to the proceedings, leaving Judge Sabo with little choice but to remove him if the trial were to continue. However, even if his behaviour justified the court in excluding Abu-Jamal from many of the critical parts of the trial, it would not release the presiding authorities from the duty to conduct a fair and impartial trial and from ensuring that his exclusion infringed as little as possible on Abu-Jamal’s right to participate in his own defence. In effect, Mumia Abu-Jamal was tried in absentia during a large portion of the trial.
The right to the resources necessary for an adequate defence
Mumia Abu-Jamal’s lack of meaningful legal representation was compounded by the refusal of Judge Ribner, the pre-trial judge, to grant the defence adequate funds to employ an investigator, pathologist or ballistics expert. The court also refused defence attorney Jackson requests for a second attorney to aid the defence. [23] In response to the initial request for funds, the Court allocated $150 for each expert. On three occasions, the defence attempted to have this amount increased as it was proving impossible to obtain expert evaluation of the evidence for this fee. On each occasion this entirely reasonable request was denied. Jackson explained to Judge Ribner that he was experiencing difficulties in recruiting the experts without the guarantee of funding. The judge replied that if Jackson submitted an itemised bill for the work the judge would approve payment, assuming he found the charges reasonable. Jackson pointed out that he had told the experts this but that they were still not willing to work without an advance payment--to which the judge replied: “Tell them, ‘The Calendar judge said ‘trust me’”. [24]
This sum allocated by the courts to cover Jackson’s fees and expenses for his work on the case for over six months, payment for an investigator to locate and interview witnesses, and fees for experts to evaluate the evidence and testify in court concerning their findings, was clearly insufficient. The defence presented no expert testimony on ballistics or pathology. [25] The police and prosecution interviewed more than 100 witnesses during their investigation of the crime. The evaluation of these statements alone would have taken more time than Jackson could afford to devote to them.
The jury: a fair and impartial panel of Abu-Jamal’s peers?
An essential element of a fair trial is the selection of an impartial jury of the defendant’s peers, one which will base its verdict solely on the evidence presented to it. Where a case generates a high degree of controversy and publicity, trial courts routinely grant a change of venue, to ensure that the jury has not been exposed to pretrial publicity that could bias its deliberations. Of approximately 80 people in the jury pool at Mumia Abu-Jamal’s trial, all but seven prospective jurors admitted that they were familiar with media coverage of the case.
The jury eventually selected (including the four alternate jurors [26]) consisted of two blacks and 14 whites. The population of Philadelphia at the time of the trial was 40 per cent African American; a jury racially representative of the community could thus have been expected to include at least five black members.
The prosecution used 11 out of its 15 peremptory strikes to remove African Americans from the jury. In 1986, the US Supreme Court ruled in the case of Batson v. Kentucky that the removal of potential jurors must be “race neutral”. [27]
The jurors selected for the trial of Mumia Abu-Jamal appear to have received different treatment from the court according to their race. Jennie Dawley, black, was the only juror selected while Abu-Jamal was conducting his own defence. Dawley requested, before the trial started, that she be allowed to take her sick cat to the veterinarian during the evening, thereby not disrupting the court proceedings. [28] Judge Sabo denied this request without informing the defence. Juror Dawley was dismissed from the jury when she failed to abide by the Court’s instruction. In contrast, a white juror requested permission to take a civil service exam during court time. Judge Sabo granted this request, temporarily halted the trial and instructed a court official to accompany the juror and ensure that he saw no media coverage of the trial.
Jennie Dawley was replaced by a white alternate juror, Robert Courchain. On at least five occasions during jury selection, Courchain stated that, although he would try, he might be unable to set aside his bias in the case. For example, he stated: “unconsciously I don’t think I could be fair to both sides.” The defence sought the removal of Courchain “for cause” (i.e. that he was incapable of deliberating impartially), but Judge Sabo denied the request. As Jackson had previously used the one peremptory strike available to him at this point he was unable to prevent Courchain from becoming an alternate juror.
Jackson also allowed two jurors onto the jury whose life experiences could possibly prejudice them against Abu-Jamal. Juror number 11 was the close friend of a police officer who had been shot while on duty. While being questioned, he openly admitted that this experience could mean he was unable to be a fair juror because of his feelings concerning his friend. Juror number 15 (an alternate) was the wife of a serving police officer. Jackson allowed both onto the jury without objection.
The case for the prosecution: too many unresolved questions
At trial, the prosecution’s case against Abu-Jamal consisted of three elements:
-- the ‘confession’ allegedly made by Abu-Jamal at the hospital;
-- three eyewitnesses who testified that they saw Abu-Jamal commit the offence;
--the presence of Abu-Jamal’s gun at the murder scene, which the prosecution alleged was the murder weapon.
Mumia Abu-Jamal’s “confession”
During the trial, the jury heard testimony from hospital security guard Priscilla Durham and police officer Gary Bell. [30] According to both witnesses, when about to receive treatment for his bullet wound at the hospital, Mumia Abu-Jamal stated: “I shot the motherfucker, and I hope the motherfucker dies.”
During an appeal court hearing in 1995, a third witness, police officer Gary Wakshul, also claimed to have heard the statement. However, Officer Wakshul, who was in the police vehicle that took Mumia Abu-Jamal to the hospital, had written in his report that “we stayed with the male at Jefferson [hospital] until we were relieved. During this time, the negro male made no comments”.
None of the many other police officers in and around the hospital treatment room at that time claimed to have heard the statement, which Abu-Jamal allegedly shouted. Doctors who treated Abu-Jamal at the hospital stated in their testimony that they were with him from the moment he arrived, that he was “weak...on the verge of fainting”, and that they did not hear him make any statement that could be interpreted as a confession.
None of the three witnesses to the alleged confession reported what they had claimed to have heard until February 1982, more than two months after the shooting. They reported the alleged incriminating statements during interviews with the police Internal Affairs Unit. The interviews took place after Abu-Jamal’s made allegations of being abused by the police when he was arrested. [31] Officer Wakshul claimed that his delay in reporting the confession was due to “emotional trauma” caused by the murder of Officer Faulkner. The two other witnesses stated that they did not believe the outburst was significant enough to report to the police.
However, during her trial testimony, Priscilla Durham claimed that she had reported the statement to her hospital supervisor the day after the events and that they had prepared a handwritten note of her allegation. Upon hearing this testimony, the prosecution sent an officer to the hospital in an attempt to recover the supervisor’s record of Durham’s statement. The officer returned from the hospital with an unsigned typewritten statement, which Priscilla Durham denied having seen before. Despite finding that this was not the original document, that the witness had not seen it before that day, and that its authenticity was not verified, Judge Sabo allowed it into evidence. He conjectured that “They took the handwritten statement and typed this” -- events that were not in evidence and that he was thus not in a position to deduce.
Gary Wakshul, the officer who noted in his report that “during this time, the male negro made no statements”, did not testify at the trial. When the defence lawyer attempted to call him as a witness, it transpired that he was on holiday, despite a notation on a police investigation report that Wakshul was not permitted to be on leave at the time of the trial. The defence requested that Officer Wakshul’s whereabouts be established or that the trial be temporarily halted to enable them to locate him. That request was denied by Judge Sabo, who commented to Mumia Abu-Jamal that “your attorney and you goofed”.
The jury was never informed of the existence of Officer Wakshul’s written report of his custody of Mumia Abu-Jamal which clearly contradicts the claim that the suspect “confessed” to killing Officer Faulkner. Therefore, the jury was left with little reason to doubt the testimony of the two witnesses who claimed to have heard the confession.
The likelihood of two police officers and a security guard forgetting or neglecting to report the confession of a suspect in the killing of another police officer for more than two months strains credulity. Priscilla Durham’s claim that she believed Mumia Abu-Jamal’s “confession” was important enough to report to her supervisor (who in turn thought it important enough to have typed out from the original handwritten version) but not important enough to notify the police is scarcely credible.
In a conversation with an Amnesty International researcher, one of Mumia Abu-Jamal’s current legal team stated that a number of the jurors have told defence investigators that they had taken into consideration Abu-Jamal’s “confession”, not just in deciding his guilt but also in sentencing him to death, since the statement portrayed him as aggressive and callous. However, the jurors refused to make any public statements to this effect. The concern remains that a possibly fabricated “confession” may have been a major contributing factor in the jury sentencing Mumia Abu-Jamal to death.
Witnesses to the crime: conflicting and confusing
During the trial, three witnesses testified that Abu-Jamal had run up to Officer Faulkner, shot him in the back and then stood over him and fired another bullet into his head, killing him instantly (although only one witness, White, claimed to have seen the events as described above in their entirety). None of the witnesses testified that Faulkner fired at Abu-Jamal as he fell to the ground -- even when specifically asked -- as the prosecution maintained. The prosecution also maintained that only Abu-Jamal, his brother William Cook and Officer Faulkner were present in the immediate vicinity of the crime scene.
In the years since the trial, defence lawyers have thrown into doubt the reliability of much of this trial testimony.
The complicated nature of the numerous accusations, counter accusations and withdrawing of statements and testimony make it impossible, based on the existing record, to reach definitive conclusions regarding the reliability of any witness. The prosecutors and police contend that the testimony presented at the trial was truthful and uncoerced, and that other witnesses to the crime were not called to testify as they had nothing relevant to add.
However, Abu-Jamal’s attorneys contend that a number of witnesses changed their original statements regarding what they saw on the night of the crime after being coerced, threatened or offered inducements by the police. Based on a comparison of their statements given to the police immediately after the shooting, their testimony during pretrial hearings and their testimony at the trial, the key witnesses did substantively alter their descriptions of what they saw, in ways that supported the prosecution’s version of events.
Cynthia White and Veronica Jones
Cynthia White was a prostitute working in the area on the night in question. At the trial she testified that she had seen Mumia Abu-Jamal run up to Officer Faulkner, shoot him in the back, and then stand over him firing at his head.
Prior to the trial, White had given four written statements and one tape-recorded statement to the police. In one interview she estimated the height of the person who shot Faulkner to be shorter than five feet eight inches. Abu-Jamal is six feet one inch tall. In her first court appearance at a pretrial hearing, she testified that Abu-Jamal held the gun in his left hand. Three days later she testified that she was unsure which hand he held the gun in. At trial she denied knowing which hand the gun was in. During her trial testimony, she claimed that the diagram she originally drew of the incident was incorrect and that her placement of the actors prior to Abu-Jamal’s appearance was inaccurate.
There is evidence to show that Cynthia White received preferential treatment from the prosecution and police. At the time of the trial, she was serving an 18-month prison sentence for prostitution in Massachusetts. She had 38 previous arrests for prostitution in Philadelphia; three of those charges were still pending at the time of trial. She was arrested twice within days of the shooting incident (12 and 17 December). According to Abu-Jamal’s current defence attorneys, there are no records of White ever being prosecuted for those arrests.
In 1987, a detective involved in the prosecution of Abu-Jamal testified in support of bail for White at a court hearing concerning charges of robbery, aggravated assault and possession of illegal weapons. Despite the judge pointing out that White had failed to appear in court on 17 different occasions and that she had "page after page" of arrests and convictions, the prosecution consented to the request that she be allowed to sign her own bail and the judge released her. According to information received by Amnesty International, White failed to appear in court on the charges and the authorities have since been unable to locate her. At an appeal hearings in 1997, the prosecution claimed Cynthia White was deceased and produced a 1992 death certificate in the name of Cynthia Williams, claiming that the fingerprints of the dead woman and White matched. However, an examination of the fingerprint records of White and Williams showed no match and the evidence that White is now dead is far from conclusive.
A second prostitute, Veronica Jones, witnessed the killing and testified for the defence. She claimed she had been offered inducements by the police to testify that she saw Abu-Jamal kill Faulkner, stating that "they [the police] were trying to get me to say something the other girl [White] said. I couldn’t do that." Jones went on to testify that "they [the police] told us we could work the area [as prostitutes] if we tell them [that Abu-Jamal was the shooter]."
However, Judge Sabo had the jury removed for this testimony and then ruled that Jones’ statements were inadmissible evidence. The jury were thus left unaware of the allegations that police officers were offering inducements in return for testimony against Abu-Jamal. In her testimony before the jury, Jones retracted her original statement to police that she saw two unidentified men leave the scene of the crime. Remarkably, Jackson had never interviewed his own witness (a standard practice) but Jones was interviewed by the prosecution prior to the trial.
In 1996, Veronica Jones testified at an appeal hearing that she changed her version of events after being visited by two police officers in prison, where she was being held on charges of robbery and assault. While cross-examining Jones, the prosecution announced to the court that there was an outstanding arrest warrant for Jones on charges of passing bad cheques and indicated that she would be arrested at the conclusion of her testimony.
In a sworn affidavit, Jones described her meeting with the plain clothes police officers:
After Abu-Jamal’s trial, Veronica Jones received a sentence of two years’ probation on the charges she was facing.
In January 1997, another former prostitute who worked in the area of the crime scene in 1981, came forward. In a sworn affidavit, Pamela Jenkins stated that she knew Cynthia White, who had told her she was afraid of the police and that the police were trying to get her to say something about the shooting of Faulkner and had threatened her life. Jenkins was the lover and informant of Philadelphia police officer Tom Ryan. In her statement, Jenkins claimed that Ryan "wanted me to perjure myself and say that I had seen Jamal shoot the police officer." In 1996, Tom Ryan and five other officers from the same district went to prison after being convicted of charges of planting evidence, stealing money from suspects and making false reports. Their convictions resulted in the release of numerous prisoners implicated by the officers. Jenkins was a principal prosecution witness at the trials of the officers.
Robert Chobert
Robert Chobert had just let a passenger out of his cab and was parked when he viewed the incident. It is undisputed that he was closest to the scene of the prosecution eyewitnesses, parked in his cab a car's length behind Faulkner’s police car and approximately 50 feet from the shooting. According to his testimony and statements, he was writing in his logbook when he heard the first shot and looked up. He had to look over or past Faulkner's car, with its flashing red dome light, to see the incident and saw the shooter only in profile. Chobert testified at trial that when he looked up, he saw Faulkner fall and then saw Abu-Jamal "standing over him and firing some more shots into him. “Under cross-examination by Jackson, he stated: "I know who shot the cop, and I ain't going to forget it.”
But Chobert's first recorded statement to police -- about which the jury was not told -- was that the shooter “apparently ran away”, according to a report written on 10 December 1981 by Inspector Giordano. Giordano encountered Chobert upon reaching the scene about five minutes after the shooting. Giordano wrote: “[A] white male from the crowd stated that he saw the shooting and that a black MOVE member had done it and appearently [sic] ran away. When asked what he ment [sic] bby [sic] a MOVE member, the white male stated, 'His hair, his hair,' appearantly [sic] referring to dreadlocks.”
There are also discrepancies between Chobert’s description of the shooter’s clothes and weight and that of Abu-Jamal.
During the trial, Jackson attempted to introduce into evidence Chobert’s previous convictions for driving while intoxicated (twice) and the arson of a school, for which he was on probation. Jackson sought to introduce the convictions to challenge Chobert’s credibility, but Judge Sabo refused to allow the defence the opportunity to make the jury aware of Chobert’s convictions.
The jury were also left unaware that Chobert had been driving his cab with a suspended drivers’ license on the night of the killing; that it was still suspended at the time of the trial and that the police had never sought to charge him for this offence. According to Chobert’s testimony at the 1995 hearing, he had asked the prosecutor during the trial “if he could help me find out how I could get my license back”, which was “important” to him because “that's how I earned my living.” According to Chobert, the prosecutor told him that he would “look into it.”
During this final summation to the jury, the prosecutor emphasized Chobert’s testimony, telling the jury they could “trust” Chobert because “he knows what he saw”. The prosecutor suggested that Chobert’s testimony was given without anyone having influenced him, telling the jury: “do you think that anybody could get him to say anything that wasn’t the truth? I would not criticize that man one bit...What motivation would Robert Chobert have to make up a story...”. However, subsequent revelations suggest that Chobert had substantial reasons to ingratiate himself with the authorities by corroborating their version of events.
Mark Scanlan
In one of his original statements to the police, Scanlan stated several times that he did not know whether Abu-Jamal or his brother shot Faulkner: “I don’t know who had the gun. I don’t know who fired it.” He also misidentified Abu-Jamal as the driver of the vehicle stopped by Officer Faulkner and was approximately 120 feet from the scene. A diagram that Scanlan drew for police indicated that Abu-Jamal and Faulkner were facing each other when the first shot was fired, contrary to the prosecution’s theory that the police officer was initially shot in the back. At trial, Scanlan admitted that he had been drinking on the night in question and that “There was confusion when all three of them were in front of the car.”
by Amnesty International
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PART 1 OF 2
February, 2000
Amnesty International February 2000 AI Index: AMR 51/01/00
[PICTURE]
Mumia Abu-Jamal in a visiting room at SCI Greene, Pennsylvania. Photo: Copyright k.i.pedizisai/cipher 1996
UNITED STATES OF AMERICA
A Life in the Balance The Case of Mumia Abu-Jamal
Introduction
Mumia Abu-Jamal has been incarcerated on Pennsylvania’s death row for the past 17 years. His case has generated more controversy and received more attention, both national and international, than that of any other inmate currently under sentence of death in the United States of America (USA).
Mumia Abu-Jamal, black, was convicted and sentenced to death in July 1982 for the murder of white police officer Daniel Faulkner on 9 December 1981. He has steadfastly maintained his innocence since 1981. Since the trial, those advocating his release or retrial have contested the validity of much of the evidence used to obtain his conviction. These accusations have been countered by members of the law enforcement community and their supporters, who have agitated for Mumia Abu-Jamal’s execution while maintaining that the trial was unbiased and fair.
In light of the contradictory and incomplete evidence in this case, Amnesty International can take no position on the guilt or innocence of Mumia Abu-Jamal. Nor has the organization identified him as a political prisoner, although it has previously expressed its concern over the activities of a government counterintelligence program, which appeared to number Abu-Jamal among its targets (see page 24). However, the organization is concerned that political statements attributed to him as a teenager were improperly used by the prosecution in its efforts to obtain a death sentence against him. In any event, the administration of the death penalty in the USA remains a highly politicized affair, sanctioned and supported by elected officials for its perceived political advantages. The politicization of Mumia Abu-Jamal’s case may not only have prejudiced his right to a fair trial, but may now be undermining his right to fair and impartial treatment in the appeal courts.
After many years of monitoring Mumia Abu-Jamal’s case and a thorough study of original documents, including the entire trial transcript, the organization has concluded that the proceedings used to convict and sentence Mumia Abu-Jamal to death were in violation of minimum international standards that govern fair trial procedures and the use of the death penalty. Amnesty International therefore believes that the interests of justice would best be served by the granting of a new trial to Mumia Abu-Jamal (see conclusion).
In October 1999, Abu-Jamal filed his initial federal appeal. The federal courts represent Abu-Jamal’s final opportunity to have many of the troubling issues in his case addressed and corrected. However, as discussed below, the 1996 Anti-terrorism and Effective Death Penalty Act severely limits the federal courts’ ability to ensure that legal proceedings at state-level guaranteed the defendants’ rights enshrined in the US Constitution and under international human rights standards. Amnesty International has chosen this time, a time when Abu-Jamal’s life is in the balance, to release this report.
Mumia Abu-Jamal is one of more than three and a half thousand people on death row in 37 states and under federal law throughout the USA. By the end of 1999, 598 prisoners had been put to death in 30 states since executions resumed in 1977; in 1999 alone, 98 prisoners died at the hands of the state, a record year since the 1950s. The US authorities have repeatedly violated international minimum safeguards in their continuing resort to capital punishment. Violations include the execution of the mentally impaired, of child offenders, and of those who received inadequate legal representation at trial. Those sentenced to death in the USA are overwhelmingly the poor, and disproportionately come from racial and ethnic minority communities. The risk of wrongful conviction remains high, with more than 80 prisoners released from death rows since 1973 after evidence of their innocence emerged. Many came close to execution before the courts acted on their claims of wrongful conviction. Others have gone to their deaths despite serious doubts concerning their guilt.
Amnesty International unconditionally opposes the death penalty under all circumstances. Even if it were possible for a country to create a judicial system entirely fair and free from bias and error, the punishment of death would still violate the most fundamental of all human rights. Each death sentence and execution is an affront to human dignity: the ultimate form of cruel, inhuman and degrading punishment.
In opposing the death penalty, Amnesty International in no way seeks to minimize or condone the crimes for which those sentenced to death and executed were convicted. Nor does the organization seek to belittle the appalling suffering of the families of murder victims, for whom it has the greatest sympathy. However, the finality and cruelty inherent in the death penalty render it incompatible with norms of modern day civilized behaviour and an inappropriate and unacceptable response to violent crime.
The continued and accelerating use of the death penalty is one of many serious human rights violations that Amnesty International has identified and repeatedly raised with the US authorities. These other concerns include a nationwide pattern of police brutality; the physical and sexual abuse of prisoners, inhuman or degrading conditions of confinement and the mistreatment of asylum seekers. [1]
The backdrop: Philadelphia, a city of racial tensions, police brutality and police corruption
The shooting of Officer Daniel Faulkner in 1981 and Mumia Abu-Jamal’s trial the following year took place in Philadelphia, a city fraught with tension between the predominately white authorities and the African American and other minority communities. Both before and since that time, numerous instances have come to light of police brutality and the use of disproportionate force with lethal consequences; of the corruption of police officers and the fabrication of evidence against those suspected of criminal acts. [2]
In 1973, a federal judge for the US District Court stated that police abuse occurred with such frequency in Philadelphia that it could not be “dismissed as rare, isolated instances” and that city officials did “little or nothing” to punish or prevent police abuse.
In 1979, the US Department of Justice filed a lawsuit against the then-mayor of Philadelphia, Frank Rizzo, and other city officials for condoning police brutality. The lawsuit listed 290 persons shot by the city’s police officers between 1975 and 1979, the majority of whom were from ethnic minorities. During Frank Rizzo’s eight years as mayor, fatal shootings by Philadelphia police officers increased by 20 per cent annually. In the year after he left office, 1980, fatal shootings declined 67 per cent. [3] Mayor Rizzo appeared to tolerate police misconduct. In 1978, he told an audience of 700 police officers “Even when you’re wrong, I’m going to back you”. [4]
An investigation in 1978 by the Pennsylvania House of Representatives Sub-Committee on Crime and Corrections found that a small but significant number of Philadelphia police routinely engaged in verbal and physical abuse of citizens to a degree the subcommittee considered “lawless”. The investigation concluded that the level of police abuse had reached that of homicidal violence and that Philadelphia lacked the necessary police leadership to control the lawlessness.
Also in 1978, the police became involved in a siege of a house occupied by members of MOVE. [5] During an attempt to force the occupants to leave the building a shot was fired, causing the police to open fire at the house (it is disputed whether the police or those in the house fired the initial shot). At this time, one police officer was fatally wounded; MOVE members later maintained that the police officer was killed by gun fire from other officers. As the occupants surrendered to the police, television cameras filmed a police officer striking Delbert Africa (all members of MOVE adopt the second name of Africa) with the butt of a shotgun and then dragging him along the ground as other police officers kicked him. Police bulldozed the house to the ground the following day, destroying the crime scene and making analysis of many of the day’s events impossible. [6] Nine members of MOVE were tried on charges of third degree murder, conspiracy, and multiple counts of attempted murder and aggravated assault; all were found guilty and sentenced to 30 to 100 years in prison.
Mumia Abu-Jamal was closely involved with MOVE. It is highly likely that the officers who arrested him, although perhaps unaware of his identity, would have immediately associated him with the organization because of his dreadlocks, a hairstyle adopted by all members of MOVE as part of their beliefs. Abu-Jamal was also a former member of the Black Panther Party (BPP) and was under surveillance by the FBI’s Counterintelligence Program, COINTELPRO (see box). [7] Prior to his arrest, Abu-Jamal worked as a journalist and had written articles critical of the authorities in Philadelphia. To supplement his income, he was working as a taxi cab driver at the time of the crime.
The crime: the shooting of police officer Daniel Faulkner
On 9 December 1981, at approximately 3.55am, Officer Daniel Faulkner of the Philadelphia Police Department stopped a car driven by Mumia Abu-Jamal’s brother, William Cook. A struggle ensued between the two men. Mumia Abu-Jamal, who was driving a cab in the vicinity, observed his brother in an altercation with the officer and got out of his vehicle. Minutes later, more police officers arrived on the scene to find Officer Faulkner dead from two bullet wounds to the head and back. Mumia Abu-Jamal was sitting nearby wounded in the chest by a bullet from the police officer’s gun. Abu-Jamal’s own legally-registered gun was found a few feet away from where he sat.
Media coverage of the case as it proceeded to trial referred extensively to Abu-Jamal’s affiliations with MOVE and his former membership in the Black Panther Party. The continual references to Abu-Jamal’s past political activities caused Joe Davidson, president of the Association of Black Journalists to state “[w]e are disturbed by disparaging news reports about Mr. Jamal's political and religious beliefs. As an organization dedicated to truth and fairness in journalism, we will continue to monitor media coverage on this matter. We hope that Mr. Jamal will be tried in the courtroom and not in the press.” [8] Following investigations by the authorities, pre-trial hearings in the case began on 5 January 1982. On 7 June 1982, the trial of Mumia Abu- Jamal on a charge of first degree murder and possession of an instrument of crime commenced in Philadelphia, amid intense publicity.
The trial judge: an independent and fair arbiter of justice?
“The judiciary shall decide matters before them impartially, on the basis of the facts and in accordance with the law, without restrictions, improper influences, inducements, pressure, threats or interferences, direct or indirect, from any quarter or for any reason.” [9]
Where a defendant has selected trial by jury, the ultimate disposition of the case rests with the jurors and not with court officials. But the overall conduct of the trial is the responsibility of the presiding judge and jurors look to the judge for guidance and instruction on the complex legal issues before them. Any hint of bias from the bench may thus have a profound effect on the jury’s deliberations.
The trial of Mumia Abu-Jamal was presided over by Judge Albert F. Sabo. His history of involvement with the police and law enforcement community has raised concerns that he was not the most suitable choice of official to oversee the trial of a defendant accused of killing a police officer. Albert Sabo was an Undersheriff of Philadelphia County for 16 years before becoming a judge in 1974. His official biography lists him as a former member of the National Sheriffs Association, “retired Fraternal Order of Police” (FOP) and as associated with the Police Chiefs’ Association of South East Pennsylvania. [10] As a judge he was no stranger to the death penalty. Over a period of 14 years, he presided over trials in which 31 defendants were sentenced to death, more than any other US judge as far as Amnesty International is aware. Of the 31 condemned defendants, 29 came from ethnic minorities. [11]
The judicial conduct of Judge Sabo has been a cause for concern to many members of the Philadelphia legal community for a number of years. A 1983 Philadelphia Bar survey found that over one third of the responding attorneys considered Judge Sabo unqualified to be on the bench. When asked about the survey, Judge Sabo appeared to reveal his bias against the defence by stating that if he were a defence attorney “I wouldn’t vote for me either”.
In 1992 the Philadelphia Inquirer reviewed 35 homicide trials presided over by Judge Sabo. [12] The investigation concluded that: “through his comments, his rulings and his instructions to the jury” Judge Sabo “favored prosecutors”. According to the report, in one case, Judge Sabo even urged the prosecution to introduce evidence because “it would be helpful to [get] a conviction”. A review of the court records by the Inquirer showed “that most of the homicide judges in Philadelphia hear more murder cases than Judge Sabo with fewer death sentences.” In the same article, the Inquirer also concluded: “The assignment of a judge, like the naming of a lawyer, can be a life-or-death matter for a murder suspect. Some, like Judge Albert F. Sabo, are viewed as prosecution-minded. Others are seen as more favorable to defense. One report likened the system to a ‘crap shoot’.”
Throughout Abu-Jamal’s trial - a trial to determine whether the defendant would live or die - Judge Sabo appeared to be more concerned with expediency than fairness. For example, during the proceedings of 17 June, he stated “I don’t want to be held up on lousy technicalities...what do I care?” and “As far as I’m concerned, it can wait until lunchtime. Whatever you want to do, but let’s do something. I have a jury waiting out there”.
In 1995, defence lawyers requested that Judge Sabo recuse (i.e. remove) himself from presiding over an evidentiary hearing on whether Mumia Abu-Jamal’s original trial was fair, on the grounds of “his inability to endow this proceeding with... the appearance of fairness and impartiality”. Judge Sabo refused. During the hearing, he was openly hostile to the defence, causing one commentator to write: “[t]hroughout the internationally scrutinized post-conviction hearing, which ran from July 26 to August 15, and the closing arguments on September 11, Judge Sabo flaunted his bias, oozing partiality toward the prosecution and crudely seeking to bully Weinglass [a defence lawyer], whose courtroom conduct was as correct as Sabo’s was crass.” [13] On 16 July 1996, the Philadelphia Inquirer described Judge Sabo’s adjudication of the hearings: “The behavior of the judge was disturbing first time around -- and in hearings last week he did not give the impression to those in the courtroom of fair-mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense’s case.”
The defence: Mumia Abu-Jamal’s legal representation at trial
“They [defence lawyers] must aid their clients in every appropriate way, taking such actions as is necessary to protect their clients’ rights and interests, and assist their clients before the courts.” [14]
US death penalty procedures are a uniquely complex area of criminal law, in which even attorneys experienced in non-capital trials may fail to adequately represent their clients. Amnesty International has documented numerous cases of death row prisoners who were represented at trial by woefully inadequate defence attorneys. [15] Its concern over such cases is shared by other international human rights groups and inter-governmental bodies. In 1996, for example, the International Commission of Jurists (ICJ), an international non-governmental organization which takes no position on the death penalty per se, published a report that was highly critical of the legal representation afforded defendants in capital cases, concluding: “the administration of the death penalty in the United States will remain arbitrary, and racially discriminatory, and prospects of a fair hearing for capital offenders cannot (and will not) be assured” without substantial remedial steps. [16] The UN Human Rights Committee (HRC - the expert body empowered to monitor countries’ compliance with the International Covent on Civil and Political Rights - the ICCPR) has also made note of the concern over the “the lack of effective measures [in the USA] to ensure that indigent [poor] defendants in serious criminal proceedings, particularly in state courts, are represented by competent counsel”. [17]
At the time of Mumia Abu-Jamal’s trial, Pennsylvania had no minimum standards for those appointed to represent defendants on trial for their life. Attorneys in capital cases were not required to pass any special examinations or to have reached any level of experience in defending those facing trial on serious charges. [18]
Mumia Abu-Jamal was initially represented by a court-appointed attorney, Anthony Jackson. At a pretrial hearing on 13 May 1982, Abu-Jamal requested the court’s permission to represent himself at trial because he was dissatisfied with Jackson’s performance. [19] Judge Ribner, the judge overseeing the pre-trial hearings, granted his request but, over Abu-Jamal’s vigorous objection, appointed Jackson as backup counsel. Jackson also protested at being appointed as backup counsel, stating that he did not know what it entailed, but was told by the judge; “You can fight that out with Mr. Jamal.” Jackson was given no clarification by the court as to his role in the trial as backup counsel.
Since Mumia Abu-Jamal was obviously unable to conduct investigations due to his continued detention, his access to a fully prepared lawyer -- even as “backup counsel” -- was vital to ensure a fair hearing. In a sworn affidavit dated 17 April 1995, Jackson admitted to being “unprepared” for trial and that he “abandoned all efforts at trial preparation” three weeks before the start of the trial after Mumia Abu-Jamal had obtained the right to represent himself.
During jury selection on the third day of the trial, at the suggestion of the prosecution, Judge Sabo withdrew permission for Mumia Abu-Jamal to act as his own attorney -- supposedly only for the duration of jury selection. Judge Sabo based this decision on Abu-Jamal’s alleged slowness in questioning potential jurors and on the grounds that his status as an accused murderer instilled fear and anxiety in the jurors. However, Judge Sabo did concede that “...it is true I have not rebuked Mr. Jamal at any time [during jury selection].”
Jackson objected to the ruling, pointing out to Judge Sabo that “The last case I had before you, it took us nine days to select a jury and it certainly didn’t have as much publicity as this case”. Jackson noted that jury selection in another homicide case had taken five weeks to complete. He went on to state that “in all homicide cases, particularly in capital cases... jurors express some apprehension, some unsettlement, some fear with regard to the whole process.” These objections were to no avail, Judge Sabo continued to deny Abu-Jamal the right to represent himself.
The Philadelphia Inquirer described Abu-Jamal’s conduct prior to his removal as lead counsel as “intent and business like” and “subdued”. In the first two days of the trial, Abu-Jamal had questioned 23 prospective jurors, successfully challenging two for “cause” (bias), defeating a prosecution challenge for cause, and exercising two peremptory strikes (the right to remove a prospective juror without giving reasons).
Amnesty International’s own examination of the trial transcript found no justifiable reason for the revoking of Mumia Abu-Jamal’s right to question potential jurors. At no point during his questioning was he rude or aggressive and his examinations are very similar, in terms of length, to those of the prosecution. His questions were pertinent to the selection of a fair jury. The removal of Abu-Jamal’s right to represent himself at this point in the trial is not supported in any way by the record of the trial. Judge Sabo’s comment that “You have indicated to this court that you do not have the expertise necessary to conduct voir dire” (jury selection) is likewise not supported by the record.
After the jury had been selected and the trial proper began, Mumia Abu-Jamal resumed representing himself. However, the already tense relations between him and Judge Sabo deteriorated rapidly. It is clear from the exchanges between the two men that Abu-Jamal had come to the conclusion that he would be denied a fair trial by the court. His repeated requests to be legally represented by John Africa were denied by Judge Sabo, on the grounds that Africa was not a licensed attorney. [20] Mumia Abu-Jamal also requested that John Africa be allowed to sit at the defence table, in order to provide legal and tactical advice throughout the trial. This request was permissible under Pennsylvania law but was denied by Judge Sabo. When pressed by Abu-Jamal, who gave examples of other judges who had allowed non-lawyers to sit at the table of defendants, Judge Sabo stated that unless there was a legal precedent, he did not care what other judges did, and continued to refuse the request. Typical of the exchanges between Judge Sabo and Mumia Abu-Jamal is the following:
Judge Sabo: Mr. Jamal, it is quite evident to this court that you are intentionally disrupting the orderly procedure of this court. I have warned you time and again that if you continue with that attitude that I would have to remove you as counsel in this case.
Mumia Abu-Jamal: 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. I need counsel of choice, someone I have faith in, someone I have respect for; not someone paid by the same pocket that pays the DA, not a court-appointed lawyer, not a member of the ABA, not an officer of the court but someone I can trust and I have faith in. Your warnings are absolutely moot, they’re meaningless to me.
Shortly after this exchange, Judge Sabo prohibited Mumia Abu-Jamal from representing himself in court and Jackson was reappointed lead counsel. Jackson protested, but his request to be removed was rejected by Judge Sabo, who threatened the lawyer with disciplinary action, including imprisonment for contempt of court, unless he continued. [21] This left the defendant represented by a lawyer who was both reluctant to participate and ill-prepared for trial, effectively stripping Mumia Abu-Jamal of any meaningful legal representation. The following day, after a number of other angry exchanges between judge and defendant, Judge Sabo had Abu-Jamal physically removed from the courtroom.
For the remainder of the trial, Mumia Abu-Jamal was continuously readmitted to and removed from the trial. His behaviour in the courtroom became highly belligerent and disruptive to the proceedings, leaving Judge Sabo with little choice but to remove him if the trial were to continue. However, even if his behaviour justified the court in excluding Abu-Jamal from many of the critical parts of the trial, it would not release the presiding authorities from the duty to conduct a fair and impartial trial and from ensuring that his exclusion infringed as little as possible on Abu-Jamal’s right to participate in his own defence. In effect, Mumia Abu-Jamal was tried in absentia during a large portion of the trial.
The right to the resources necessary for an adequate defence
During the proceedings, every person is entitled...to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts. [22]
Mumia Abu-Jamal’s lack of meaningful legal representation was compounded by the refusal of Judge Ribner, the pre-trial judge, to grant the defence adequate funds to employ an investigator, pathologist or ballistics expert. The court also refused defence attorney Jackson requests for a second attorney to aid the defence. [23] In response to the initial request for funds, the Court allocated $150 for each expert. On three occasions, the defence attempted to have this amount increased as it was proving impossible to obtain expert evaluation of the evidence for this fee. On each occasion this entirely reasonable request was denied. Jackson explained to Judge Ribner that he was experiencing difficulties in recruiting the experts without the guarantee of funding. The judge replied that if Jackson submitted an itemised bill for the work the judge would approve payment, assuming he found the charges reasonable. Jackson pointed out that he had told the experts this but that they were still not willing to work without an advance payment--to which the judge replied: “Tell them, ‘The Calendar judge said ‘trust me’”. [24]
This sum allocated by the courts to cover Jackson’s fees and expenses for his work on the case for over six months, payment for an investigator to locate and interview witnesses, and fees for experts to evaluate the evidence and testify in court concerning their findings, was clearly insufficient. The defence presented no expert testimony on ballistics or pathology. [25] The police and prosecution interviewed more than 100 witnesses during their investigation of the crime. The evaluation of these statements alone would have taken more time than Jackson could afford to devote to them.
The jury: a fair and impartial panel of Abu-Jamal’s peers?
An essential element of a fair trial is the selection of an impartial jury of the defendant’s peers, one which will base its verdict solely on the evidence presented to it. Where a case generates a high degree of controversy and publicity, trial courts routinely grant a change of venue, to ensure that the jury has not been exposed to pretrial publicity that could bias its deliberations. Of approximately 80 people in the jury pool at Mumia Abu-Jamal’s trial, all but seven prospective jurors admitted that they were familiar with media coverage of the case.
The jury eventually selected (including the four alternate jurors [26]) consisted of two blacks and 14 whites. The population of Philadelphia at the time of the trial was 40 per cent African American; a jury racially representative of the community could thus have been expected to include at least five black members.
The prosecution used 11 out of its 15 peremptory strikes to remove African Americans from the jury. In 1986, the US Supreme Court ruled in the case of Batson v. Kentucky that the removal of potential jurors must be “race neutral”. [27]
The jurors selected for the trial of Mumia Abu-Jamal appear to have received different treatment from the court according to their race. Jennie Dawley, black, was the only juror selected while Abu-Jamal was conducting his own defence. Dawley requested, before the trial started, that she be allowed to take her sick cat to the veterinarian during the evening, thereby not disrupting the court proceedings. [28] Judge Sabo denied this request without informing the defence. Juror Dawley was dismissed from the jury when she failed to abide by the Court’s instruction. In contrast, a white juror requested permission to take a civil service exam during court time. Judge Sabo granted this request, temporarily halted the trial and instructed a court official to accompany the juror and ensure that he saw no media coverage of the trial.
Jennie Dawley was replaced by a white alternate juror, Robert Courchain. On at least five occasions during jury selection, Courchain stated that, although he would try, he might be unable to set aside his bias in the case. For example, he stated: “unconsciously I don’t think I could be fair to both sides.” The defence sought the removal of Courchain “for cause” (i.e. that he was incapable of deliberating impartially), but Judge Sabo denied the request. As Jackson had previously used the one peremptory strike available to him at this point he was unable to prevent Courchain from becoming an alternate juror.
Jackson also allowed two jurors onto the jury whose life experiences could possibly prejudice them against Abu-Jamal. Juror number 11 was the close friend of a police officer who had been shot while on duty. While being questioned, he openly admitted that this experience could mean he was unable to be a fair juror because of his feelings concerning his friend. Juror number 15 (an alternate) was the wife of a serving police officer. Jackson allowed both onto the jury without objection.
The case for the prosecution: too many unresolved questions
At trial, the prosecution’s case against Abu-Jamal consisted of three elements:
-- the ‘confession’ allegedly made by Abu-Jamal at the hospital;
-- three eyewitnesses who testified that they saw Abu-Jamal commit the offence;
--the presence of Abu-Jamal’s gun at the murder scene, which the prosecution alleged was the murder weapon.
The removal of jurors by the prosecution on the grounds of their race remains a common practice. Prosecutors simply give a vaguely plausible non-racial reason for dismissing the juror.
One year after the Batson ruling, the Assistant District Attorney for Philadelphia made a training videotape for the city’s prosecutors. On the video, he describes how to select a jury more likely to convict, including the removal of potential black jurors: “Let’s face it, the blacks from the low-income areas are less likely to convict. There’s a resentment to law enforcement... You don’t want those guys on your jury... If you get a white teacher in a black school who’s sick of these guys, that may be the one to accept.”
The video also instructed the trainee prosecutors on how to hide the racial motivation for the rejection of prospective jurors in order to avoid successful claims of racial discrimination from defence lawyers. The tape did not become public until 1997.
A recent study of Philadelphia found that the likelihood of receiving a death sentence is nearly four times higher if the defendant is black. See Killing with Prejudice for more details.
Mumia Abu-Jamal’s “confession”
“One can have eyewitness testimonial evidence, circumstantial evidence, scientific evidence, and even video evidence; but a confession explicitly admitting guilt...is the most powerful piece of evidence that can ever be introduced against him and will surely serve as the key that locks the jail-house door and provides the juice to power the electric chair; and in these more civilized times, the juice for the needle.” Judge Overstreet, Texas Court of Criminal Appeals. [29]
During the trial, the jury heard testimony from hospital security guard Priscilla Durham and police officer Gary Bell. [30] According to both witnesses, when about to receive treatment for his bullet wound at the hospital, Mumia Abu-Jamal stated: “I shot the motherfucker, and I hope the motherfucker dies.”
During an appeal court hearing in 1995, a third witness, police officer Gary Wakshul, also claimed to have heard the statement. However, Officer Wakshul, who was in the police vehicle that took Mumia Abu-Jamal to the hospital, had written in his report that “we stayed with the male at Jefferson [hospital] until we were relieved. During this time, the negro male made no comments”.
None of the many other police officers in and around the hospital treatment room at that time claimed to have heard the statement, which Abu-Jamal allegedly shouted. Doctors who treated Abu-Jamal at the hospital stated in their testimony that they were with him from the moment he arrived, that he was “weak...on the verge of fainting”, and that they did not hear him make any statement that could be interpreted as a confession.
None of the three witnesses to the alleged confession reported what they had claimed to have heard until February 1982, more than two months after the shooting. They reported the alleged incriminating statements during interviews with the police Internal Affairs Unit. The interviews took place after Abu-Jamal’s made allegations of being abused by the police when he was arrested. [31] Officer Wakshul claimed that his delay in reporting the confession was due to “emotional trauma” caused by the murder of Officer Faulkner. The two other witnesses stated that they did not believe the outburst was significant enough to report to the police.
However, during her trial testimony, Priscilla Durham claimed that she had reported the statement to her hospital supervisor the day after the events and that they had prepared a handwritten note of her allegation. Upon hearing this testimony, the prosecution sent an officer to the hospital in an attempt to recover the supervisor’s record of Durham’s statement. The officer returned from the hospital with an unsigned typewritten statement, which Priscilla Durham denied having seen before. Despite finding that this was not the original document, that the witness had not seen it before that day, and that its authenticity was not verified, Judge Sabo allowed it into evidence. He conjectured that “They took the handwritten statement and typed this” -- events that were not in evidence and that he was thus not in a position to deduce.
Gary Wakshul, the officer who noted in his report that “during this time, the male negro made no statements”, did not testify at the trial. When the defence lawyer attempted to call him as a witness, it transpired that he was on holiday, despite a notation on a police investigation report that Wakshul was not permitted to be on leave at the time of the trial. The defence requested that Officer Wakshul’s whereabouts be established or that the trial be temporarily halted to enable them to locate him. That request was denied by Judge Sabo, who commented to Mumia Abu-Jamal that “your attorney and you goofed”.
The jury was never informed of the existence of Officer Wakshul’s written report of his custody of Mumia Abu-Jamal which clearly contradicts the claim that the suspect “confessed” to killing Officer Faulkner. Therefore, the jury was left with little reason to doubt the testimony of the two witnesses who claimed to have heard the confession.
The likelihood of two police officers and a security guard forgetting or neglecting to report the confession of a suspect in the killing of another police officer for more than two months strains credulity. Priscilla Durham’s claim that she believed Mumia Abu-Jamal’s “confession” was important enough to report to her supervisor (who in turn thought it important enough to have typed out from the original handwritten version) but not important enough to notify the police is scarcely credible.
In a conversation with an Amnesty International researcher, one of Mumia Abu-Jamal’s current legal team stated that a number of the jurors have told defence investigators that they had taken into consideration Abu-Jamal’s “confession”, not just in deciding his guilt but also in sentencing him to death, since the statement portrayed him as aggressive and callous. However, the jurors refused to make any public statements to this effect. The concern remains that a possibly fabricated “confession” may have been a major contributing factor in the jury sentencing Mumia Abu-Jamal to death.
Witnesses to the crime: conflicting and confusing
During the trial, three witnesses testified that Abu-Jamal had run up to Officer Faulkner, shot him in the back and then stood over him and fired another bullet into his head, killing him instantly (although only one witness, White, claimed to have seen the events as described above in their entirety). None of the witnesses testified that Faulkner fired at Abu-Jamal as he fell to the ground -- even when specifically asked -- as the prosecution maintained. The prosecution also maintained that only Abu-Jamal, his brother William Cook and Officer Faulkner were present in the immediate vicinity of the crime scene.
In the years since the trial, defence lawyers have thrown into doubt the reliability of much of this trial testimony.
The complicated nature of the numerous accusations, counter accusations and withdrawing of statements and testimony make it impossible, based on the existing record, to reach definitive conclusions regarding the reliability of any witness. The prosecutors and police contend that the testimony presented at the trial was truthful and uncoerced, and that other witnesses to the crime were not called to testify as they had nothing relevant to add.
However, Abu-Jamal’s attorneys contend that a number of witnesses changed their original statements regarding what they saw on the night of the crime after being coerced, threatened or offered inducements by the police. Based on a comparison of their statements given to the police immediately after the shooting, their testimony during pretrial hearings and their testimony at the trial, the key witnesses did substantively alter their descriptions of what they saw, in ways that supported the prosecution’s version of events.
Cynthia White and Veronica Jones
Cynthia White was a prostitute working in the area on the night in question. At the trial she testified that she had seen Mumia Abu-Jamal run up to Officer Faulkner, shoot him in the back, and then stand over him firing at his head.
Prior to the trial, White had given four written statements and one tape-recorded statement to the police. In one interview she estimated the height of the person who shot Faulkner to be shorter than five feet eight inches. Abu-Jamal is six feet one inch tall. In her first court appearance at a pretrial hearing, she testified that Abu-Jamal held the gun in his left hand. Three days later she testified that she was unsure which hand he held the gun in. At trial she denied knowing which hand the gun was in. During her trial testimony, she claimed that the diagram she originally drew of the incident was incorrect and that her placement of the actors prior to Abu-Jamal’s appearance was inaccurate.
There is evidence to show that Cynthia White received preferential treatment from the prosecution and police. At the time of the trial, she was serving an 18-month prison sentence for prostitution in Massachusetts. She had 38 previous arrests for prostitution in Philadelphia; three of those charges were still pending at the time of trial. She was arrested twice within days of the shooting incident (12 and 17 December). According to Abu-Jamal’s current defence attorneys, there are no records of White ever being prosecuted for those arrests.
In 1987, a detective involved in the prosecution of Abu-Jamal testified in support of bail for White at a court hearing concerning charges of robbery, aggravated assault and possession of illegal weapons. Despite the judge pointing out that White had failed to appear in court on 17 different occasions and that she had "page after page" of arrests and convictions, the prosecution consented to the request that she be allowed to sign her own bail and the judge released her. According to information received by Amnesty International, White failed to appear in court on the charges and the authorities have since been unable to locate her. At an appeal hearings in 1997, the prosecution claimed Cynthia White was deceased and produced a 1992 death certificate in the name of Cynthia Williams, claiming that the fingerprints of the dead woman and White matched. However, an examination of the fingerprint records of White and Williams showed no match and the evidence that White is now dead is far from conclusive.
A second prostitute, Veronica Jones, witnessed the killing and testified for the defence. She claimed she had been offered inducements by the police to testify that she saw Abu-Jamal kill Faulkner, stating that "they [the police] were trying to get me to say something the other girl [White] said. I couldn’t do that." Jones went on to testify that "they [the police] told us we could work the area [as prostitutes] if we tell them [that Abu-Jamal was the shooter]."
However, Judge Sabo had the jury removed for this testimony and then ruled that Jones’ statements were inadmissible evidence. The jury were thus left unaware of the allegations that police officers were offering inducements in return for testimony against Abu-Jamal. In her testimony before the jury, Jones retracted her original statement to police that she saw two unidentified men leave the scene of the crime. Remarkably, Jackson had never interviewed his own witness (a standard practice) but Jones was interviewed by the prosecution prior to the trial.
In 1996, Veronica Jones testified at an appeal hearing that she changed her version of events after being visited by two police officers in prison, where she was being held on charges of robbery and assault. While cross-examining Jones, the prosecution announced to the court that there was an outstanding arrest warrant for Jones on charges of passing bad cheques and indicated that she would be arrested at the conclusion of her testimony.
In a sworn affidavit, Jones described her meeting with the plain clothes police officers:
“They told me that if I would testify against Jamal and identify Jamal as the shooter I wouldn’t have to worry about my pending felony charges...The detectives threatened me by reminding me that I faced a long prison sentence - fifteen years...I knew that if I did anything to help the Jamal defense I would face years in prison.”
After Abu-Jamal’s trial, Veronica Jones received a sentence of two years’ probation on the charges she was facing.
In January 1997, another former prostitute who worked in the area of the crime scene in 1981, came forward. In a sworn affidavit, Pamela Jenkins stated that she knew Cynthia White, who had told her she was afraid of the police and that the police were trying to get her to say something about the shooting of Faulkner and had threatened her life. Jenkins was the lover and informant of Philadelphia police officer Tom Ryan. In her statement, Jenkins claimed that Ryan "wanted me to perjure myself and say that I had seen Jamal shoot the police officer." In 1996, Tom Ryan and five other officers from the same district went to prison after being convicted of charges of planting evidence, stealing money from suspects and making false reports. Their convictions resulted in the release of numerous prisoners implicated by the officers. Jenkins was a principal prosecution witness at the trials of the officers.
Robert Chobert
Robert Chobert had just let a passenger out of his cab and was parked when he viewed the incident. It is undisputed that he was closest to the scene of the prosecution eyewitnesses, parked in his cab a car's length behind Faulkner’s police car and approximately 50 feet from the shooting. According to his testimony and statements, he was writing in his logbook when he heard the first shot and looked up. He had to look over or past Faulkner's car, with its flashing red dome light, to see the incident and saw the shooter only in profile. Chobert testified at trial that when he looked up, he saw Faulkner fall and then saw Abu-Jamal "standing over him and firing some more shots into him. “Under cross-examination by Jackson, he stated: "I know who shot the cop, and I ain't going to forget it.”
But Chobert's first recorded statement to police -- about which the jury was not told -- was that the shooter “apparently ran away”, according to a report written on 10 December 1981 by Inspector Giordano. Giordano encountered Chobert upon reaching the scene about five minutes after the shooting. Giordano wrote: “[A] white male from the crowd stated that he saw the shooting and that a black MOVE member had done it and appearently [sic] ran away. When asked what he ment [sic] bby [sic] a MOVE member, the white male stated, 'His hair, his hair,' appearantly [sic] referring to dreadlocks.”
There are also discrepancies between Chobert’s description of the shooter’s clothes and weight and that of Abu-Jamal.
During the trial, Jackson attempted to introduce into evidence Chobert’s previous convictions for driving while intoxicated (twice) and the arson of a school, for which he was on probation. Jackson sought to introduce the convictions to challenge Chobert’s credibility, but Judge Sabo refused to allow the defence the opportunity to make the jury aware of Chobert’s convictions.
The jury were also left unaware that Chobert had been driving his cab with a suspended drivers’ license on the night of the killing; that it was still suspended at the time of the trial and that the police had never sought to charge him for this offence. According to Chobert’s testimony at the 1995 hearing, he had asked the prosecutor during the trial “if he could help me find out how I could get my license back”, which was “important” to him because “that's how I earned my living.” According to Chobert, the prosecutor told him that he would “look into it.”
During this final summation to the jury, the prosecutor emphasized Chobert’s testimony, telling the jury they could “trust” Chobert because “he knows what he saw”. The prosecutor suggested that Chobert’s testimony was given without anyone having influenced him, telling the jury: “do you think that anybody could get him to say anything that wasn’t the truth? I would not criticize that man one bit...What motivation would Robert Chobert have to make up a story...”. However, subsequent revelations suggest that Chobert had substantial reasons to ingratiate himself with the authorities by corroborating their version of events.
Mark Scanlan
In one of his original statements to the police, Scanlan stated several times that he did not know whether Abu-Jamal or his brother shot Faulkner: “I don’t know who had the gun. I don’t know who fired it.” He also misidentified Abu-Jamal as the driver of the vehicle stopped by Officer Faulkner and was approximately 120 feet from the scene. A diagram that Scanlan drew for police indicated that Abu-Jamal and Faulkner were facing each other when the first shot was fired, contrary to the prosecution’s theory that the police officer was initially shot in the back. At trial, Scanlan admitted that he had been drinking on the night in question and that “There was confusion when all three of them were in front of the car.”