You and your attorney goofed.
-- JUDGE SABO
11. DECIDING ON GUILTDeath penalty trials are unlike any other. The participants feel
the difference the moment jury selection begins. The heaviness
of death gives the jury selection process a lumbering quality, as people
are asked to engage in quick archaeological excavations into their souls
to determine whether they can be part of a process where human
beings will decide whether another human being should live or die.
The process of determining guilt remains the same, except, perhaps,
that the presentation of evidence is done with greater solemnity
to express recognition of the gravity of the ultimate aim. In an odd
way, the routinized procedutes of a trial serve as a comfort to the
jurors who long for some reassurance that they, mere mortals with
ordinary lives, can carry out the job more appropriately assigned to
Fate. The jurors are reminded, before they retreat to determine
whether the prosecution has proven guilt beyond a reasonable doubt,
that their verdict must be rendered without regard to punishment.
But unlike a conventional trial, a capital trial is broken into two
phases. If guilt is established (in the guilt phase), then those same
jurors must sit through another phase, one that is more wrenching,
more ineffable, and often more contested than the former. This phase,
known as the penalty or sentencing phase, is devoted to determining
whether the defendant's moral worth as a human being has been so
vitiated by his crime that he is no longer fit to remain among the
living.
The guilt phase is often just a prelude to the penalty phase. The
penalty phase is where the jury plays God.
Criminal defense lawyers are, deep down, an optimistic lot, once
they are in the midst of a trial. No matter how bad it gets in a trial,
they seem to cling to the idea that they can pull out an acquittal with
a stellar summation, or with some Perry Mason moment. Jackson was
no different. He had done little to undermine the prosecution's openand-
shut case. He had done nothing, as of yet, to attack the prosecution's
"confession" evidence. He virtually conceded that the gun
registered to Mumia was the murder weapon. Yet, with the trial winding
down to its last two days, he had not given a moment's thought
to the penalty phase.
This was a mistake. No lawyer entering into a death penalty case
should look upon the penalty phase as a mere appendage to the guilt
phase of the trial. It is not an afterthought. In most death penalty
cases, where guilt is essentially conceded, the real fight begins in the
penalty phase. But even where guilt is contested, even where hopes
for an acquittal run high, even where reasonable expectations may
justifY such optimism, competent representation in a death penalty
case mandates intense and thorough preparation for the penalty phase.
***
It was June 30, and Jackson had several witnesses lined up to testify;
none, however, to attack the extremely damaging evidence of the
emergency room confession. He had really put all of his evidentiary
eggs in one basket-the "fleeing man" basket, if you will. That effort,
in large measure, didn't payoff, with Robert Chobert and Veronica
Jones both recanting their original claim to police of seeing someone
run from the scene, and Debbie Kordansky unwilling to come into
court. He was now scrambling with the logistical difficulties of lining
up over a dozen character witnesses to testify.
In a close case, character witnesses can make a real difference.
The theory behind allowing witnesses to testify as to a defendant's
character is intuitive: a person with good character traits is less likely
to commit a crime in defiance of those traits than one who is without
them. Mumia had no criminal record. The Faulkner shooting
was his only ensnarement within the web of the criminal justice system.
Jackson, therefore, wasn't concerned about rebuttal testimony
to the slew of character witnesses he was to call. What he didn't expect,
however, was that he was doing McGill a terrific favor by
marching down that road.
Jackson's first character witness was Sonya Sanchez, a poet and
writer, known largely for her forays into issues of social justice in the
United States. At the time she took the stand in Mumia's trial, she
had been teaching at Temple University in Philadelphia for five years.
Before that, she had taught at Amherst and University of Pennsylvania.
Sanchez knew Mumia personally, but Jackson was compelled to stay
within the narrow framework of the law and limit his questions to
Sanchez's awareness of Mumia's reputation for nonviolence. She testified
that Mumia "has always been viewed by the black community
as a creative, articulate, peaceful, genial man." Her direct testimony
lasted about three minutes.
McGill, without an obligatory greeting, went into his questioning
as if a golden moment would slip through his fingers if he didn't
move quickly. "Miss Sanchez, in reference to your writings, you wrote
a foreword, did you not, for the book Asata Speaks, correct?"
Sanchez lifted her eyebrows in apparent recognition of where Mc-
Gill was heading, but oblivious to the assiduity with which he would
pursue his line of questioning. "That is correct," she answered simply.
Asata Shakur, an ex-Black Panther who later joined the violent Black
Liberation Army, had been convicted in New Jersey of killing a New
Jersey State Trooper.
"Did that not deal with convicted police killer Joanne Chesimard's
case?"
"Did you read it?" Sanchez replied, defensively.
"I am asking you." McGill wisely refrained from answering the
witness's question.
"It has nothing to do with that at all. It has to do with her as a
black woman in America."
"Were you not in sympathy with her position?"
"That is not correct. That is why I asked you, 'Did you read it?' "
Sanchez answered defiantly.
"Is it a fact, Miss Sanchez, it does deal with Miss Joanne Chesimard,
is that correct?"
"It deals with her as a black woman."
McGill then moved in for the clincher. "And was she not convicted
of killing a policeman and is presently a fugitive from justice,
is that correct?"
"I think so."
The damage was significant-even devastating: the only picture
the jury had of Sanchez was of a person who seemingly supported cop
killers. Is this the type of people Mumia associated with? the jurors
must have asked themselves. Jackson decided to pose some additional
questions to Sanchez in his redirect examination to dilute the damage
done by McGill's questioning. He was hoping to give the jury a more
well-rounded picture. Instead, he unwittingly brought the picture into
sharper focus.
"Has there been a purpose in any of your writings to criticize the
police department?" Jackson asked.
Sanchez was apparently oblivious to the dynamics of the courtroom-
at least, of that particular courtroom, with that nearly all-white,
predominantly male and elderly jury sitting just a few feet
angled to her left. "I have written about many facets of America,"
Sanchez answered. "I have written about the oppression in a place
called America."
"Oppression in a place called America"? McGill knew that his jury
would not comprehend Sanchez's words, because they didn't occupy
Sanchez's universe; they didn't share her outlook or embrace her political
commitments. "Oppression in a place called America" to this
jury was nothing more than sloganeering by people who wanted to
do away with the blessings of American liberty. This "place called
America" was their home, and it was, in their minds, the envy of the
world. Attacking "this place called America" was tantamount to attacking
the jurors' own identity.
Sanchez continued: "I teach also at Gratorford Prison. I teach
young men in prison and have also talked to the guards there. You
cannot talk about America without talking about oppression and the
police department and the courts."
McGill wasn't going to belabor the point, but he stood up to
cross-examine Sanchez again to reinforce the threatening message.
"When you are talking about oppression in your answer to Mr. Jackson,
the question is simply, are you including oppression by police on black
people?" McGill didn't know what the answer would be, but the answer
mattered little. Sanchez tersely replied, "By everyone."
And so it went for hours. A few minutes of direct examination in
which, as if by rote, each of the fifteen character witnesses vouched
for Mumia's nonviolent reputation, was followed by lengthy crossexaminations
calculated to portray Mumia as a political radical who
viewed law enforcement, and governmental authority generally, as the
enemy of black people. At several points, McGill attempted to introduce
that one item of evidence that he was unable to bring out earlier
at the bail hearing: that mysterious newspaper article, which he felt
would crystallize this theme and would make sense of this entire sordid
affair-make sense of the killing, the confession, the courtroom outbursts,
all of it. Though not a legal scholar, and never one to give the
defense the benefit of the doubt on an evidentiary ruling, Judge Sabo
instinctively recoiled at the attempt to bring in the newspaper article.
He felt that McGill had enough to secure his conviction and death
sentence, and he wasn't going to let McGill's thirst for more risk a
reversal years down the road .
***
Jackson must have been astounded. There, buried in the file, was
a police report that he had completely forgotten about. How could
that have happened, given what the report contained? He could
only blame it on the fact that he had just been too overwhelmed
with the sheer volume of material in the case and his assumption,
which he harbored right up to the start of the trial, that he would
not be trying the case. He went into court on July 1 armed with
the report and dedicated to making one more request of the judge,
perhaps his most urgent request to date-a request even Judge Sabo
surely would not deny.
McGill was thrilled when he walked into court. The guilt phase
of the case was going to be over by the end of the day. Notes for his
closing argument were tucked away in his briefcase. He could give the
closing argument in his sleep. Those he had delivered to other juries,
in less notorious murder cases, served as the template for this one.
Guilt was a lock, he thought. Never had he had such an overwhelming
case of guilt. McGill had his eyes set on the penalty phase.
Jackson nudged McGill at the prosecutor's table. "Joe, we gotta
see the judge." McGill asked Jackson what for, but Jackson refused to
say. "We gotta, that's all," he said.
"Your Honor, there is another matter I would like to bring to
your attention," Jackson announced in the judge's chambers. He
waited for the judge to say something, and discerning that the judge
was waiting on him to say more, Jackson cleared his throat to explain.
"We have now found there is another police officer that we would
like to have testify."
Predictably, Judge Sabo wanted to know what this officer would
say. He reacted to Jackson's statement not as a request but as a signal
that the defense was seeking a delay in the trial. He was not inclined,
to say the least, to allow for more delay, as he too had grown weary
of the trial. Jackson explained that Officer Gary Wakshul was one of
several officers who brought Mumia into the emergency room on
December 9.
"So?" Judge Sabo impatiently interrupted. Jackson continued to
explain that this officer had signed a police interview statement. "So?"
the judge interjected again.
Jackson knew by the judge's impatient tone that he was going to
have trouble. "The statement indicates, Your Honor, that ... well, it
says: 'During this time the Negro male made no comment.' " Jackson
could barely get the words out. He felt a tightness in his chest, as it
was clear to him that the judge was upset by this news. Wakshul was
with Mumia when he supposedly twice blurted out the confession,
Jackson explained, and yet he informed investigators that Mumia had
said nothing. Sabo registered no reaction to indicate that he understood
the import of what Jackson was saying. McGill, however, knew
exactly what Jackson was driving at.
Jackson was about to enter a litigation twilight zone.
"He is not around," McGill informed the judge. "I am going to object
to bringing this guy in. He is not around. I am not bringing him in
at the last minute." Jackson was puzzled by McGill's hostility. He had
been aggressive throughout the trial, but not hostile-not toward him,
at least. But now there was a discernible edge to his voice.
Judge Sabo nodded in agreement. "You knew about this before. I
am not going to hold up this trial."
Jackson protested, confessing that he had been unaware of Wakshul's
statement. "I was forced to try and remember everything that
everybody said and I couldn't do it," he admitted. It was a replay of
Jackson's remarks on April 29. He had pleaded desperately with Judge
Ribner then to give him some help by appointing a second attorney
on the case. He had openly admitted that he was in over his head,
with pretrial hearings and trial a little over a month away. And then,
two weeks later, Mumia took the burden away from him by opting
to represent himself. Judge Sabo himself told Jackson that he could
now relax, because being backup counsel was really no big deal. When
he was unexpectedly thrust back into the lead counsel role, the jury
had already been selected and testimony was about to begin. It was
enough just to keep his head above water, preparing for the next day's
proceeding the night before, with six-day-a-week court sessions. He
just didn't have the time or energy to digest all of the nearly two
hundred police reports in the file. Couldn't Judge Sabo, in the interests
of justice, just cut him a break?
Judge Sabo remained unmoved. "I am not going to delay the
court," he reiterated. In any event, Judge Sabo averred, the statement
was ambiguous. "I don't know what he means by this. 'During this
time the Negro male made no comments.' That may be as far as he
is concerned. Look, there were a lot of police officers in that room.
There were other people that were there that may not have heard it."
Judge Sabo was missing the point. Frustrated, Jackson tried to
explain that this wasn't a situation where a police report reflected an
omission of a fact. "Judge, he didn't say, 'I didn't hear anything.' He
said, 'He made no comments.' "
"It doesn't mean it wasn't said," Judge Sabo snapped back. That
the jurors were the ones who properly should be evaluating Wakshul's
statement was lost in the exchange. Judge Sabo had a penchant for
tendentious reasoning to defeat an argument by a defense lawyer, and
it was coming into play with full force now. "He didn't hear it as far
as he is concerned. He can't speak for everybody else that is in that
room. I am not going to delay the case any longer."
McGill gently offered reinforcement to Judge Sabo's anxiety to
complete the trial, noting that the July Fourth holiday was fast approaching.
It was a Thursday. The upcoming weekend was the holiday
weekend, in the cradle of American liberty. "You could have had this
man long ago," Judge Sabo stated with finality. "I am not going to
delay the case anymore. There has been enough delay."
Earlier in the trial, the judge had suspended the trial proceedings
for a half day to allow a white male juror to take a civil service exam.
That delay didn't count, presumably because this juror, unlike Jennie
Dawley, was deemed favorable to the prosecution.
Jackson refused to quit. He knew that he had to do something
about that alleged confession, and he felt terrible in overlooking Wakshul's
report. A man's life hung in the balance. He wasn't too exhausted
to forget that. Trying to make the point that his request to
bring Wakshul in to testify really didn't entail much of a delay at all,
Jackson asked, "How long is it going to take to get a police officer
here?"
"How do 1 know? He could be on vacation." Vacation? Why
would Judge Sabo offer that conjecture? Was he privy to information
that was unavailable to the defense?
Judge Sabo called a short recess, ostensibly to allow McGill to
inquire about Wakshul's availability. McGill picked up the courtroom
phone and chatted in a low voice. He placed the receiver down and
Judge Sabo motioned for the court reporter to begin typing.
"Your Honor, 1 have made efforts to find out where Officer Wakshul
is and 1 am informed that he is on vacation until July 8." Judge
Sabo's conjecture-was it conjecture?-turned out to be correct.
Jackson continued to press. "Well, does that mean he is not in
the city? Can we call him at home? Maybe he's still in the city."
Judge Sabo could only shake his head. He had never seen Jackson
so insistent. He had, up until then, looked upon him as a team player
in the judicial system: make an application, state your reasons, and
then accept the ruling of the court. This sort of persistence could earn
Jackson a bad reputation, which would jeopardize future court appointments
on criminal cases.
"I am not going to go looking for anybody now," Sabo growled.
"I have reached an end to my patience with this nonsense."
That was the end of it. Jackson knew that he wasn't going to get
this witness on the stand. Like Kordansky, Wakshul never appeared
in front of the jury. He finally did take the stand in the case of
Commonwealth v. Jamal over a decade later. Jackson had no way of
knowing it at the time, but Wakshul was a far more explosive witness
than he could have ever imagined. And on top of that, he was in
Philadelphia, just a phone call away.
Mumia wasn't privy to the events in chambers that morning. It
was nearly noon on July 1 when the proceedings resumed in open
court. The defense had no other witnesses. It now came time for the
most difficult decision a defendant must make-whether to testify.
Judge Sabo asked Mumia if he intended to take the stand. He and
McGill expected that this highly intelligent defendant, a man who had
made a name for himself in the communication business, the voice of
the voiceless, would sit in the witness chair and explain how it is that
he found himself slouched on the curb with a gunshot wound to the
chest, just a few feet away from a dead police officer. Mumia stood
up and glared at the judge.
"My answer is that I have been told throughout this trial, from
the beginning of the trial, the inception of the trial, that I had a
number of constitutional rights. Chief among them the right to represent
myself. The right to select a jury of my peers. The right to face
witnesses and examine them based on information they have given.
Those rights were taken from me." Mumia paused and looked over
his shoulder at the black faces in the audience, at the people who had
become his brothers and sisters in MOVE. He continued but it was
clear he was now speaking not to the judge but to everyone in the
room. "It seems the only right that this judge and the members of
the court want to confer is my right to take the stand, which is no
right at all." Mumia's voice then began to rise. "I want all of my
rights, not some of them. I don't want it piecemeal, I want my right
to represent myself and I want my right to make a closing argument.
I want my rights in this courtroom because my life is on the line."
Jackson stood as soon as Mumia took his seat. He announced,
"The defense rests."
Mumia catapulted to his feet. "The defense does not rest!" Mumia
exclaimed. He wanted to know why Officer Wakshul was not slated
to appear. Mumia understood fully that a failure to rebut the confession
evidence would destroy any hope of an acquittal. He also couldn't
stomach the rank outrageousness of it. He refused to let the police
frame him without a fight.
Judge Sabo said it was "impossible" for Wakshul to come in,
because "the officer is on vacation."
Mumia scrambled through documents strewn on the table, and,
locating what he was looking for, pointed to it. "On here it says no
vacation," Mumia countered. A typewritten notation on Wakshul's
police report of December 9, a notation that Jackson had overlooked,
contained the reference "no vac" on the top of the first page. The
judge waved that point off, pointing out that he had "the right to ask
for him before and you didn't do ie" Mumia thundered, "I had a
right to represent myself, but you stopped that, didn't you?"
"Your attorney and you goofed," Sabo answered back, too embroiled
in the exchange to notice the cruelty in the remark. Mumia
had been fighting throughout the trial for his right to control his own
defense, resulting in numerous expulsions from the couttroom, but
instead he had foisted upon him an unprepared, overwhelmed, and
unwilling advocate who simply dropped the ball in failing to subpoena
Wakshul. Now Judge Sabo was telling him that he'd have to accept
the consequences-the deadly consequences-of Jackson's dereliction.
"You stole my right to represent myself," Mumia retorted.
Judge Sabo was completely sucked into the argument. "You did
by your own actions."
"By fighting to defend myself, I stole my right? That is a lie,
Judge."
The whole process was a lie in Mumia's eyes. He had always
insisted on his innocence. The eyewitnesses saw him run across Locust
Street-that much they got right. But in the darkness, illuminated
only by a red flashing and twirling bulb on top of Officer Faulkner's
patrol car, they had missed the fact that he was felled by a bullet when
he came within a few feet of the officer, stepping toward the curb
with the officer slightly elevated on the sidewalk. Cynthia White, the
most damaging of the prosecution's eyewitnesses, was a liar; she was
a prostitute who was induced to lie, and when a witness, Veronica
Jones, was about to blow the lid off that dirty little secret, Judge Sabo
kept the lie packaged up. And now, as Mumia saw it, the most brazen
of all of the lies, the "confession" in the emergency room, was immune
from attack because an officer with an opposing story was supposedly
away on vacation.
"I am not going to allow this court to proceed to lynch me without
speaking in defense of my life. Damn!" Members of the audience
began shouting in support. Jackson held his head in his hands,
shocked that even Sabo, the most notoriously unfair trial judge in the
courthouse, which was not an easy distinction to earn within Phila-
delphia's criminal justice system, would descend this low in railroading
Mumia. He wouldn't even allow a simple phone call to Wakshul's
home when it was obvious that Mumia desperately needed this witness.
"I know you want to kill me," Mumia continued. "It has been
made abundantly clear."
***
Closing arguments are the crown jewel of the trial lawyer's craft.
Many trial lawyers like to think of closing argument as a time of
oratory; a platform for eloquence and brilliance to penetrate the seemingly
impenetrable logic erected by the opponent's stack of evidence;
an opportunity to bring coherence to the myriad pieces of information
extracted from witnesses, question by question, forged through evidentiary
injunctions that act as minefields to the trial lawyer as he
tries to reach his destination. But the truly great summation is something
far more sublime. Yes, it must be disciplined by logic and constrained
by reason. Yes, it must be uplifting, imbued with the passion
of an ardent advocate who genuinely believes in his client and in his
client's cause. Yet-and this is difficult for most trial lawyers to accept-
he or she must become invisible.
Invisible? But it is my moment to shine, says the trial lawyer. It
is my chance to persuade that jury of the justness of my client's cause.
It may very well be my only chance to save my client from the gallows.
How can I become invisible!? The trial lawyer must strive to have the
jury forget that it is the skilled and silver-tongued lawyer speaking of
injustice; the jury must feel the injustice itself, unmediated by oratory
and eloquence. It is an art form, carried out through a cultivated skill,
not unlike the skill of a virtuoso musician who becomes invisible as
the audience is swept away by the music.
Anthony Jackson stood in front of the jury, not too close, lest he
intrude on their space. He had not earned the right to approach those
men and women with an air of intimacy. He wouldn't admit it; he
couldn't admit it at that moment, but he knew deep down that his
client faced an inevitable conviction. The jurors themselves likely knew
that Jackson, deep down, knew this basic truth. Not on some con-
scious level, but deep inside their souls, they could sense the vibes of
resignation coming through Jackson's words. Jackson apologized to the
jurors. Some watched him with dour expressions; others with crossed
arms and stiffened shoulders. He hadn't even allowed himself to say
anything about the evidence, or about Mumia, or about the spectacles
that they, the jury, had witnessed throughout the trial. He apologized
for the slow pace of the trial, betraying his own sense of relief that
his ordeal was about over. "This trial has now come to an end. I am
sure most of you and many of you said, 'Thank God.' " Fifteen days
had passed since those jurors assembled to hear the evidence.
If the trial was an ordeal, it was such because of Mumia. An
apology for the plodding pace, and expressing relief that it is over,
served only to isolate Mumia in that courtroom. His own lawyer,
probably without awareness, had abandoned him within the first minute
of the closing argument. And that abandonment, unwitting as it
probably was, underscored Jackson's more conscious abandonment of
the case on May 13 when he pleaded unsuccessfully with the judge
to cut him loose from the case.
Mumia had spent much of his energy during the trial trying to
expose the betrayal of American justice. It was not so much an ordeal
from the defense perspective as it was a challenge to the ethical underpinnings
of the system. Jackson would never reveal whether he ever
allowed himself to understand that. He told the jurors, even before
discussing the evidence, that they could be proud of this system of
justice of which they were now a part as direct participants. "We in
America, unlike many other countries, are fortunate in that we are
here today as a result of the struggles of a number of people, people
that we don't know and people perhaps that we have never even read
about who have fought and died to make this system work." Whether
the jury agreed with this politician-like verbal applause for American
justice didn't matter. Jackson was not speaking for his client; he wasn't
giving voice to his client's cause. His talk of the greatness of American
justice did not spring forth from truths borne in the contest that took
place in the courtroom, right before the jury's eyes.
Jackson continued with the point: "It may seem kind of strange
to you when I say to you that Mr. Jamal, aside from the fact he was
arrested, is indeed fortunate, fortunate in an ironic kind of way. When
I say he is fortunate, he is being tried in America in a courtroom, in
an American courtroom." Strange, indeed. The point, if anything,
actually seemed to underscore the idea that his client's political harangues
were irrational, and thus, by extension, that he was capable
of irrational acts of violence. It was an odd point as well, given that
an American courtroom is one of the few places in the Western world
where a defendant is exposed to the death penalty.
The first half of Jackson's summation consisted of meaningless
platitudes that did nothing to help Mumia. For example, against the
mountain of evidence presented by the prosecution, Jackson pitted the
presumption of innocence. He argued that the presumption of innocence
is genuine evidence from which the jury could acquit. Literally
true, but the words were empty, drained of spirit and blood. It was
shallow, a manifestation of absolutely no preparation and commitment
to the case, to insist that some lofty legal principle could eviscerate
the evidence presented by the prosecution.
The final half of Jackson's summation urged the jurors to question
Cynthia White's credibility, noting her vulnerability to police pressure,
and highlighted discrepancies in the eyewitness testimony. "Looking
at the inconsistencies in the evidence, you'll know that Mumia Abu-
Jamal did not shoot Officer Faulkner," he asserted. He suggested that
perhaps the police jumped to the conclusion that Mumia was the
culprit based upon his reputation as a trenchant critic of the police.
"Did they want Jamal because he is a well-known journalist, primarily
in the black community?" he asked rhetorically. The jurors stared back
blankly. Where was the evidence for that thesis? How does that explain
the prompt on-the-scene identifications? These were questions McGill
would later thrust upon the jurors. As for the confession, Jackson
implied that Mumia, facing death on the emergency room floor, falsely
implicated himself to protect his brother. "When he thinks he's dying,
would love of your brother allow you to say that you were the one
who did the shooting?" Jackson asked.
Some of Jackson's points respecting the troublesome nature of the
eyewitness testimony were valid, if not astute, but they were delivered
with a mind-numbing tone, almost as if he were reading a shopping
list. He had no coherent story line about what happened on the night
in question; he had no deep understanding about his client or the
social backdrop to the investigation. He was presenting a grab-bag
closing argument, offering a menu of choices to justify an acquittal,
hoping that the jurors would be enticed to select just one. It had the
trappings of a closing argument, but not the substance of persuasive
rhetoric. fu a criminal defendant facing the death penalty, Mumia was
not constitutionally entitled to persuasiveness. He received the accoutrements
of due process, and that was more than many of his brothers
and sisters on death row had received.
Most importantly, as Jackson ended his closing argument it was
plain that he had never taken away the momentum McGill acquired
after he addressed the jury in his unopposed opening statement. There
never was any question who stood for good and who embodied evil.
The trial had worked out beautifully for McGill. His evidence had
been contested by a criminal defense lawyer, giving it a veneer of
legitimacy. A jury assumes, for it can hardly assume otherwise, that
when evidence is challenged by the defense, it could not have been
challenged more thoroughly. A jury does not know what it cannot
know-that other evidence that could counter the prosecution's case
exists outside of what they heard in the courtroom.
When McGill began his closing argument, he reinforced the point,
telling the jury that the defense had had the prosecution's file at its
disposal, a right accorded a defendant to permit the fair challenge of
the prosecution's evidence. He was essentially echoing Jackson's
American-justice-is-great theme. The prosecution's evidence had been
challenged in the way the great American justice system says that it
should be, and he wanted the jury to understand that. Jackson had
given it his best shot and he could do no better-not for lack of skill
or preparation but because his client was manifestly guilty and the
evidence was too compelling to rebut. The jury was now privy to all
of the relevant information bearing upon the guilt-innocence inquiry,
as the defense had the wherewithal to present its own evidence of
innocence, if such existed. McGill wanted the jury to appreciate that
fact as well. Only then can the jury truly hold in appropriate esteem
the value of that evidence, for the prosecution's case had withstood a
robust challenge, thereby endowing it with a power from which there
was no escape.
McGill had been shrewd throughout the trial, but at times that
shrewdness led him to deliver low blows. He told the jury that it
could acquit the defendant and there would be "nothing that anyone
could do about it." Acquittal, McGill argued, was an "immense
power" that the jury retained, and like all immense power, it must be
used with restraint. McGill was undermining the scope of the presumption
of innocence and the unique judicial calculus that is the hallmark
of American justice: it is better that ten guilty go free than one innocent
be convicted. The finality of an acquittal, McGill argued, must be
weighed against the fact that "if you find the defendant guilty ... there
would be appeal after appeal after appeal." McGill was arguing that
caution should be exercised in favor of conviction, not acquittal; that
it was better to err on the side of the prosecution, because that sort
of mistake might be remedied by some appellate court at some future
date.
The low blows continued. Throughout the trial, McGill graciously
advised Judge Sabo on ways to mitigate the prejudice associated with
the acrimonious exchanges between Mumia and the judge. McGill
and Judge Sabo shared a desire to "protect the record" against an
appellate reversal. But McGill felt no constraints in making use of
Mumia's difficulties with the judge as a fulcrum for generating sympathy
for Officer Faulkner and outrage over Mumia's "arrogance and
defiance." Mumia's dogged insistence on his right to represent himself,
and his repeated reminder that he was on trial "for his life," became
the focal point of McGill's advocacy.
"Let me tell you this, let me make this clear," McGill enunciated
slowly, moving down the railing. "You have heard constantly, constantly
you have heard about the facts that this defendant is on trial
for his life. You have heard this all the time." The bitterness in Mc-
Gill's tone revealed the depth of his disgust at Mumia's courtroom
behavior. "Let me add this. Will you understand that this defendant
is on trial for taking somebody's life, too. That is one thing we hadn't
heard much about."
This was utter nonsense. The whole trial was about the accusation
against Mumia for "taking somebody's life." But McGill didn't pause
for the jury to consider the absurdiry of this point. It was only a
bridge to the emotional chord McGill wanted to strike: "It may be
true and indeed it is true that Daniel Faulkner on December ninth,
at three-fifty-eight as he looked up at the barrel of this gun, did not
have an opportunity to ask for any type of counsel, or to make any
type of abusive remarks in relation to anybody, the system, the laws,
or anything. No one quickly ran down and said, 'Do you want an
attorney? Do you want something? Do you want this? Do you want
that?' He was just shot in cold blood with this weapon."
The rwo mutually reinforcing images were compelling: on one
mental screen was a helpless police officer, looking up at a gunwielding
angry black man dedicated to destroying American values,
and on the other, Mumia Abu Jamal at the center of numerous courtroom
spectacles where judicial authority and the legitimacy of the
system were under verbal assault. Mumia's struggle for recognition of
his rights, his quarrels with the judge, were now the organizing force
to the evidence against him. McGill's strategy was coming into sharper
focus, and it would later dominate the proceedings when McGill
turned to advocating death. This was no spur-of-the-moment killing.
To understand the evidence, McGill was saying, you must understand
who Mumia is; and who this man is was displayed in the well of the
courtroom throughout the trial proceedings.
Why else would Officer's Faulkner's brain be shattered with a
high-velocity Plus-P bullet that explodes upon contact? That Mumia
would have Plus-P bullets was consistent with his attitude toward
authority-those bullets destroy, and that was the essence of Mumia's
radical political sentiments: destruction of the white power structure,
of the status quo. Why else would Mumia blurt out a profanity-laced
confession that boasted of a cruel assassination? Only an arrogant and
disciplined warrior could muster the bravado to do this in the com-
pany of scores of police officers while lying vulnerable on an
emergency room floor with a potentially fatal gunshot wound to the
chest. Mumia was no ordinary street thug. To McGill, the confession
revealed that Officer Faulkner was a casualty of a certain kind of war,
and that war would, three years later, lead to the highly publicized
and much criticized bombing of the Osage Avenue MOVE residence.
Whereas Jackson's closing argument had no resonating theme, Mc-
Gill's closing packed a wallop derived from a tightly drawn portrait,
the accuracy of which was seemingly irrelevant to this prosecutor, this
judge, and this trial process. The important fact was that this portrait
was tailor made for this nearly all-white blue-collar jury.
The actual eyewitness evidence was really an afterthought, a form
of confirmation of what the jury already believed to be the case. That
is why McGill reserved his discussion of the eyewitness evidence for
later in the closing argument. McGill understood the rhetorical value
of imprinting an image on the minds of the audience before launching
into the more logical aspects of an argument. The mental image, the
picture of a helpless cop looking up at an antiauthoritarian black radical
poised to blow his brains out, fertilized the emotional soil from
which "rational" justifications for conviction would grow.
"What you have, ladies and gentlemen, is an individual who was
observed by the witnesses and who never left the scene." Four witnesses!
None of those four, McGill emphasized, had any motive to
implicate an innocent man in such a barbaric act. "What more compelling
identification testimony would you need than that?" McGill
airbrushed out of his rendition of the evidence the confusion that must
have suffused the scene, with witnesses looking upon events through
a flashing turret light atop a patrol car. McGill glossed over the discrepant
physical descriptions of the shooter, and the evolving narrations
about what was supposedly observed. These nuances were
precisely that: nuances that had no significance in the face of who the
defendant was. It was enough to fasten upon the fact that four witnesses
observed Mumia dart toward Officer Faulkner, and that seconds
later, a dark figure stood over the uniformed young man, bent over
him and fired the Plus-P bullet into his brain. Mumia never left the
scene, McGill repeated over and over. "That is the type of evidence
that you may well find compelling."
The only thing left for McGill to do, as he wound his way to a
conclusion, was to rally his audience. It is not enough to convince.
The trial lawyer ultimately must persuade, must induce action in others,
which is a far more difficult thing to do. Because the jury will
eventually assemble in a small room with a mandate to take action,
trial lawyers must find a way to rally the jury to act. "This is one
vicious act," McGill said with controlled anger, crouching down on
the floor and looking up to reenact the horror that Faulkner must
have experienced, seeing a gun pointed at his face. "This is one uncompromising,
vicious act. This is one act that the people of Philadelphia,
all of them, all of you everywhere are outraged over." McGill
wanted the men and women in that jury box to understand that they
were being watched, that their actions would be judged by their fellow
citizens. "This act demands action! Responsibility and courage!"
The jury was asked to do something for the "people of Philadelphia."
How could they resist that plea?
***
The following day, Friday, July 2, 1982, didn't begin well for Jackson.
He was awoken at 6:30 A.M. by fire engines parked in front of
his house. Apparently, and it wasn't the first time during the trial,
someone falsely reported a fire at his home. After resolving matters
with disgruntled firefighters, Jackson readied himself for the day. He
stopped by his office shortly before 9:00 A.M., fully expecting to make
it into Courtroom 253 by 9:30. He then received a call from his
fifteen-year-old son just as he was about to trudge over to the courthouse.
His son had received a threatening phone call, apparently a
threat of kidnapping. Jackson tried to keep calm as he instructed his
son to get over to his grandmother's home. His son called back a
couple of minutes later. He had received another call, from a different
person but with a similar message. Jackson rushed over and took his
son to his grandmother's.
It was remarkable that Jackson was able to keep enough focus to
sit through the soporific verbiage that precedes jury deliberations. Before
juries are allowed to evaluate the evidence-they are constantly
reminded during the trial not to come to any conclusions until deliberations
begin-they must receive instructions on the legal principles
applicable to a case. Such instructions generally fall into two categories:
first, the judge explains the general principles that operate in all criminal
trials, such as the burden of proof and the presumption of
innocence; second, the judge sets forth the particular elements of a
crime, each of which the prosecution must prove beyond a reasonable
doubt.
Shortly after 11:00 A.M., Judge Sabo began delivering the instructions
on the law to a jury anxious to begin deliberating. At 11:48
A.M., the twelve men and women assembled in a room and began
discussing what they had seen and heard in the courtroom. Meanwhile,
Mumia sat alone in his cell, writing and waiting. Jackson and
McGill also waited, passing the time nervously in their own ways.
They waited for about six hours, with a startling intercession before
the verdict was rendered. The jury had sent in a note, at 2:30 P.M.,
asking for further clarification on the law of manslaughter. The note
signaled that the jury was beyond the whodunit question. Perhaps,
the note implied, Mumia was guilty of manslaughter, and not murder,
because he had killed the officer in a state of uncontrolled rage, induced
by the maltreatment of his brother. It was a stretch. Whoever
killed Officer Faulkner committed an act that appeared to be the
quintessence of first-degree murder. Was the requested reinstruction
on manslaughter simply a bump in the road on the way to a guilty
verdict for murder in the first degree?
The jury foreman, George Ewalt, a telephone lineman and Vietnam
veteran activist, stood up and looked to the court clerk for guidance.
He had been chosen foreman by the others in the jury room
because he seemed able to keep the discussions organized. The jurors
never questioned in their deliberations that Mumia was the man who
pulled the trigger to his .38 revolver which propelled the bullets that
struck the young officer, once in the back and once between the eyes.
They had spent some time debating whether the tricky element of
premeditation-a key ingredient to a first-degree murder charge-had
been established beyond a reasonable doubt. When Judge Sabo reinstructed
the jury on the law of manslaughter and the varying degrees
of murder, he accurately told the jury that premeditation can be
formed in an instant. That clarification put the deliberations back on
track, leading to the announcement of the verdict. [i]
With a slow cadence, the clerk asked the jury foreperson if the
jury had reached a verdict on the weapons possession count. Whether
the clerk inquired of the trivial weapons possession count for dramatic
effect or simply out of convention is unclear. Everyone, of course,
wanted to know about the first-degree murder count. Ewalt punctured
the drama, so anxious was he to announce the verdict. "Guilty of
murder in the first degree," he said. No one in the courtroom had
trouble hearing the announcement. Propriety, of course, is the bedrock
of solemnity, so the clerk again asked Ewalt to announce the verdict
on the weapons possession count. With that guilty verdict announced,
Ewalt was then given the green light to announce, once again, the
jury's verdict adjudging Mumia Abu-Jamal a cop killer.
"The initial response to the verdict was one of uncharacteristic
calm for a courtroom that has seen as much turmoil as Courtroom
253 has during the month-long Abu-Jamal trial," one reporter wrote.
Maureen Faulkner wept quietly with her hands clasped tightly together.
On the other side of the aisle, Lydia Wallace, Mumia's sister,
put her hand on her mother's lap. Edith Cook was visibly ashen; her
precious son-the one who always unabashedly showered her with
love, the one who refrained from eating meat because it was too decadent
and itself the product of violence against other living creatures,
the one who cared little for conventional success because too many
continued to suffer the sting of poverty and loneliness, the one who
she looked to with distinct pride-the precious baby who she brought
into the world and strived to protect against the psychic wounds of
poverty; this young man who had lived his life to get to this point
had been adjudicated a convicted murderer.
Mumia was sitting deep in his chair, his legs crossed, torso curled
and his face tightened, as the verdict was read. Was it anger, or just
holding back the hurt, that caused him to sit motionless for the entire
ten minutes that it took to record the verdict? When the deputy sheriffs
moved in to escort him out of the courtroom, he rose gingerly
from his chair and looked out toward the audience. He exclaimed:
"Ona Move! Long live John Africa! This system is finished!" His defiance
revealed nothing about how he was really feeling.
It was the end of the day on a Friday of a holiday weekend. Judge
Sabo called the lawyers to the bench and gave them a choice: start
the penalty phase immediately (meaning, that very night) or begin
promptly the next morning. "What is your pleasure, gentlemen?" he
asked, evidently pleased with the outcome. Jackson was too emotionally
winded to respond. He'd had enough of Judge Sabo, McGill, and
Mumia. He wanted the whole ordeal over. McGill, noticing Jackson's
reticence, chimed in, "Judge, I think the first thing tomorrow morning
would be in order." There would be no respite for Jackson to collect
his thoughts on how to advocate for Mumia's life. He had done no
preparation, absolutely none, for the penalty phase. He had no witnesses
lined up. He had no strategy in mind. The jury would decide
whether Mumia should live or die, but it would not receive meaningful
assistance from Anthony Jackson. Thirteen years later, when
asked how he passed the time that evening, Jackson confessed that he
had no memory of it.
Jackson walked past the railing and into the spectator section on
his way to the courtroom exit. Suddenly shouting jolted him like an
unexpected slap in the face, causing him to stop midstride. "You're a
traitor," MOVE member Jeanette Africa screamed. "You're going to
pay for this!" Jackson had put up with a lot of berating for the past
month, and he had kept his own feelings bottled up in order to forge
ahead with his unwanted duty. But, with his emotional guard down,
this particular verbal attack especially stunned him. Others joined in
the screaming, angered by his failure, as some were saying, to "get off
the case." Jackson tried to get to the exit door. Jeanette Mrica quickly
moved toward him and bumped into him. "Don't touch me!" Jackson
warned, speaking for the first time in response to the screaming. The
brief outburst uncorked his pent-up emotions. He collapsed onto a
seat and began to cry. Jeanette Mrica continued to shout obscenities
at him.
Reporters observed the scene with dismay. They felt sympathy for
Jackson, a man who, from their vantage point, had tried his best to
help a totally ungrateful client. They saw from their spectator seats
Mumia's open disdain for "this shyster," his repeated castigation and
insults. He toiled in the barren fields of a criminal courtroom, doing
a thankless job, and in the end, he was reduced to tears by a barrage
of insults. And tomorrow he would have to convince this same jury,
in this hostile milieu, to spare Mumia's life.
After the supporters and Mumia's family emptied out of the courtroom,
the Faulkner family and police officers quietly celebrated, hugging
each other and shaking hands. McGill, meanwhile, met the
waiting news reporters outside: ''I'm especially proud of the courage
of the jury. To stand up to the shouting, the antics that have gone
on in this courtroom, takes something special. I'm also very proud of
the way the Faulkner family has stood up to this-they're a fantastic
example to all people. They kept their cool at all times, even when
they were being abused inside and outside the courtroom." McGill's
comments appeared underneath banner headlines the following morning:
"Abu-Jamal Found Guilty of Murder."
_______________
Notes:i. My understanding of what occurred during the deliberations derives from interviews of actual
Jurors.