Mumia’s Battle in the Courtroom: The Four Issues Made Simple
by Abu-Jamal News staff
In December, 2001 Federal District Court Judge William Yohn affirmed Mumia Abu-Jamal's guilt but overturned the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn ruled that sentencing forms used by jurors and Judge Sabo's instructions to the jury were confusing. Subsequently, jurors mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to consider them as weighing against a death sentence.
Mumia's case is now in the federal Third Circuit Court of Appeals, with oral arguments set for May 17. District Attorney Lynne Abraham is appealing the death penalty ruling while Mumia is appealing the guilty verdict.
If the penalty ruling is overturned, a new execution date will be set for Mumia. If Yohn’s ruling is upheld, the DA can still impanel a new jury to rehear the penalty phase, which could then sentence Mumia to death—regardless of the 3rd Circuit ruling.
Because the DA appealed Yohn's death penalty decision, Mumia has never left death row, and is still unable to have such “privileges” as full-contact visits with his family.
While the specter of execution still exists, there is also reason for hope. In December, 2005 the 3rd Circuit announced the beginning of deliberations and shocked many by agreeing to consider two claims not “certified for appeal” by Yohn in 2001.
Mumia's attorney Robert R. Bryan declared it to be “the most important decision affecting my client since his 1981 arrest, for it was the first time there was a ruling that could lead to a new trial and his freedom.” The court is now considering the following four issues:
1. Whether the penalty phase of Mumia's trial violated the legal precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling. This issue was Yohn's grounds for overturning the death sentence and is now being appealed by the DA.
2.“Certified for appeal” by Yohn in 2001, the Batson claim addresses the prosecution's use of peremptory challenges to exclude Blacks from Mumia's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a defendant deserves a new trial if it can be proved that jurors were excluded on the grounds of race. Most importantly, Batson significantly lowered the defendant's burden of proof.
At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia was 40% black, Abu-Jamal's jury was composed of ten whites and only two blacks. From 1977-1986 when current Pennsylvania governor Ed Rendell was Philadelphia's District Attorney, the evidence of racism is striking: from 1977-86, the Philadelphia DA struck 58% of potential black jurors, but only 22% of white jurors.
In their Amicus Curiae (“friend of the court”) brief supporting the Batson claim, the NAACP Legal Defense Fund concludes that it is an “abundantly clear… prima facie case of discrimination.” The LDF cites a survey of homicide cases DA McGill tried from Sept., 1981 to Oct., 1983, showing that “the odds that Mr. McGill would peremptorily challenge an African-American potential juror were 8.47 times greater than for non-black jurors.”
3.The legality of McGill's statement to the jury minimizing the seriousness of a verdict of guilt: “If you find the Defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.”
In 1986 the Pennsylvania Supreme Court ruled against McGill in another case (Commonwealth v. Baker) on the same grounds. When Abu-Jamal addressed this same issue in his 1989 appeal with the State Supreme Court, the court reversed its decision on the legality of such a statement—ruling against the claim for a mistrial.
4. The fairness of Mumia's 1995-97 PCRA hearings when the retired, 74-year-old Judge Sabo was called back specifically for the hearing. Besides the obvious unfairness of recalling the exact same judge to rule on his own fairness in the original 1982 trial, his actual PCRA bias has been extensively documented.
During the 1995 hearings, even the mainstream Philadelphia Inquirer wrote that the “behavior of the judge in the case was disturbing the 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.”
Concluding the PCRA hearing, Sabo rejected all evidence and every witness presented by the defense as not being credible. Therefore, Sabo upheld all of the facts and procedures of the original trial as being correct.
This fourth claim is particularly explosive in that the PCRA evidence judged “not credible” by Sabo exposed much more than an unfair trial. Despite Judge Sabo and the DA's best efforts to minimize and discredit, proof of an extensive police frame-up emerged.
What the 1995-97 PCRA Hearings Revealed:
Gary Wakshul and the False Confession
Perhaps the clearest example of fabricated evidence used against Mumia, his alleged “confession,” was suspiciously introduced two months after his arrest. When interviewed in February 1982 by the police Internal Affairs Bureau investigating Mumia's police brutality complaint, Officers Wakshul, Bell, and hospital security guard Priscilla Durham then reported Mumia's supposed “hospital confession” for the first time.
Mumia allegedly declared (in the presence of 15-20 other cops that have never confirmed it): “I shot the motherfucker and I hope the motherfucker dies!”
Testifying in 1982, Bell (Faulkner's partner and “best friend”) claimed the over two month mental lapse (Bell first reported the “confession on February 25, 1982) resulted from being so upset about Faulkner’s death.
At trial, Durham amended her statement to police by suddenly testifying that she had reported the confession to her supervisor the next day. While neither her supervisor or the alleged hand-written statement were presented in court, the DA sent an officer to the hospital--returning with a suspicious typed version of the alleged report. Sabo accepted the paper (not signed or dated) despite both Durham’s disavowal of it (because it was typed and not hand-written) and the defense’s protest that there was no establishment of authorship or authenticity.
Unfortunately, the jury never heard the most explosive evidence discrediting the confession. While the DA called Bell and Durham to testify, Wakshul was suspiciously absent. On the final day of testimony in 1982, Mumia's lawyer discovered Wakshul's statement from Dec.9—the morning of the shooting. After riding with Mumia to the hospital and guarding him until his treatment, Wakshul reported: “The Negro male made no comment.”
When the defense immediately sought to call Wakshul as a witness—the DA reported that he was on vacation. On grounds that it was too late in the trial, Sabo denied the defense request to locate him for testimony. Subsequently, the jury never heard from Wakshul or about his written report. When an outraged Mumia protested, Sabo cruelly declared: “You and your attorney goofed.”
Wakshul's “Negro male” report was key evidence at the PCRA hearings, and it was well-known that he would have to testify to defend his “confession” story. Unknown to Mumia's lawyers, on July 13 (days before his PCRA testimony) Wakshul was savagely beaten by undercover police officers in front of a Judge in the Common Pleas Courtroom where he worked as a court crier. Almost two years later, the two attackers (members of Philly's Vice Squad) were suspended without pay as punishment. With the motive still unexplained, the beating was likely used to intimidate Wakshul into maintaining his “confession” story at the PCRA hearings.
On the stand, Wakshul defended both his Dec.9 report and the two month delay as just being a bad mistake. Further discrediting the “confession” story, he repeated his incredible statement given to the IAB investigator in 1982: “I didn’t realize it had any importance until that day.”
The original trial's injustice was further exposed when Wakshul testified to being home for his 1982 vacation—in accordance with explicit instructions to stay in town for the trial so that he could testify if called.
The “confession” story has been thoroughly discredited. As Amnesty International concluded: “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.”
At the PCRA hearings, defense ballistics expert George Fassnacht testified that he declined a request to assist Mumia’s defense in 1982 because the court-allocated $150 was insufficient. Subsequently the defense never presented their own specialist. While testifying that the fatal bullet was probably the same caliber as Mumia's gun (legally purchased after his Taxi was repeatedly robbed), Fassnacht challenged the prosecution's 1982 evidence in two key ways.
Fassnacht defined “particular” and “general” rifling characteristics. “Particular” traits are “the small stria or scratches which identify a particular bullet” as coming from one specific gun. In contrast, “general” traits can only link a bullet to a particular type of gun.
Police experts have always said that the fatal bullet was too damaged to link the “particular” traits to Mumia's 38 caliber Charter Arms revolver.
Fassnacht noted an unexplainable contradiction in police ballistic expert Anthony Paul's original report. Paul first describes the bullet's “general” traits as “indeterminable.” Contradicting himself in the same report, Paul later identified a general trait: a “right-hand direction of twist.” Paul's 1982 testimony went further by identifying another general trait never mentioned in his written report “8 lands and 8 grooves.”
After deeming the general traits “indeterminable,” Paul then alleged two general traits that conveniently implicated Mumia's gun type. However, even if these “general” traits existed on the bullet, it was not a reliable link to Mumia’s gun. Paul was asked by the defense in 1982, “approximately, how many millions of guns have eight lands and grooves and how many would provide this bullet?” He acknowledged that it could have come from “multiples of millions,” including many millions of guns not manufactured by Charter Arms.
Police did not officially perform two basic forensics tests—the “smell” and “wipe” tests. It is standard to “smell” the gun's barrel for gunpowder (which can be smelled up to 4 or 5 hours after discharge). The “wipe test” checks for gunshot residue on suspects' hands and clothing.
When challenged by the DA, Fassnacht insisted that these tests were reliable and routinely used.
Quoting Amnesty International, “the failure of the police to test Abu-Jamal’s gun, hands, and clothing is deeply troubling.” Most likely, police did perform the tests, but hid this when the results did not implicate Mumia. This obvious ballistics manipulation seriously challenges the credibility of other evidence, such as the police allegation that Mumia’s gun was at his side with five spent cartridges when police arrived.
A third challenge of the prosecution’s ballistics was raised by medical examiner John Hayes. In 1982, prosecutor McGill argued that Mumia had been shot in the chest from below by a falling Faulkner. Recognizing the bullet's downward trajectory McGill claimed that the bullet ricocheted off bone within Mumia’s torso and then tumbled in a downward direction.
Challenging this far-fetched theory, Hayes testified in 1995 that X rays proved the bullet traveled without any deflection. Easily disproving the official scenario, Mumia was probably shot while running across the street towards Faulkner and his brother.
Veronica Jones Exposes Coerced Testimony
Veronica Jones' 1996 PCRA testimony exposed police coercion of witnesses and further discredited the 1982 testimony of the DA's star witness: prostitute Cynthia White (the only one to actually testify to seeing Abu-Jamal pull the trigger).
The story begins on Dec.15, 1981 when Jones (a prostitute who was working nearby on Dec.9) first told police that she had seen two men “jogging” away from the crime scene before police arrived. Testifying in 1982, Jones recanted and denied ever making the statement. However, when asked if she had talked to the police since her first statement, Jones testified that police had visited her in jail the next month:
“They were getting on me telling me I was in the area and I seen Mumia, you know, do it..They were trying to get me to say something that the other girl [Cynthia White] said. I couldn't do that.” Jones reported that police offered to let her and White “work the area if we tell them.”
Calling her testimony “absolutely irrelevant,” the DA moved to block the line of questioning and strike the previous statements. Because Sabo happily complied, the jury was ordered to disregard Jones' statement regarding White and a police offer of freedom to “work the area” in return for testimony that Abu-Jamal shot Faulkner.
The DA and Sabo's efforts to silence Jones continued through to the PCRA hearings.
Unable to locate her earlier, the Defense found Jones in 1996, and (over the DA's protests) obtained permission from the State Supreme Court to extend the PCRA hearings for Jones' testimony. Sabo vehemently resisted—arguing that there was not sufficient proof of her unavailability in 1995. However, in 1995 Sabo had refused to order disclosure of Jones' home address to the defense team.
Over Sabo’s objections, the defense returned to the State Supreme Court—which then ordered Sabo to conduct a full evidentiary hearing. Sabo's attempts to silence Jones continued as she took the stand. He immediately threatened her with 5-10 years imprisonment if she testified to having perjured herself in 1982. In defiance, Jones testified to perjury in 1982 when she recanted seeing two men “run away” and “leave the scene.”
She testified to changing her version of events after being visited by two detectives in prison, where she was being held on charges of robbery and assault. Urging her to finger Mumia, the detectives stressed that she faced up to 10 years in prison and the loss of her children if convicted. Afraid of losing her children, Jones testified to having met the police halfway: she didn't actually finger Mumia, but she did lie about not seeing two men running from the scene. Accordingly, Jones only received probation and was never imprisoned for these 1982 charges.
During cross-examination, the DA announced that there was an outstanding arrest warrant for Jones on charges of writing a bad check, and that she would be arrested after concluding her testimony. With tears pouring down her face, Jones declared: “This is not going to change my testimony!”
Despite objections from the defense, Sabo allowed New Jersey police to handcuff and arrest Jones.
While the DA attempted to use this arrest to discredit Jones, her determination in the face of intimidation only made her more credible. Outraged by Jones' treatment, even the mainstream Philadelphia Daily News reported: “Such heavy-handed tactics can only confirm suspicions that the court is incapable of giving Abu-Jamal a fair hearing. Sabo has long since abandoned any pretense of fairness.”
The same coercion of witnesses by police, DA, and judge exposed by Jones' story was rampant in Mumia's case. Documented by Amnesty International, witnesses Cynthia White (a prostitute facing multiple charges) and Robert Chobert (an arsonist on probation, driving his cab without a license, which he had lost twice due to DWI) also “altered their descriptions of what they saw, in ways that supported the prosecution's version of events.”
While the defense did attempt to challenge these discrepancies, Sabo blocked efforts to inform the 1982 jury fully about the vulnerability of these witnesses to police pressure.
Speaking about White, both Veronica Jones (in 1996) and another ex-prostitute, Pamela Jenkins (in 1997) testified that she was blackmailed into her testimony by the police, who had the power to pursue or drop prostitution charges against her, and in January 2002, yet another witness, Yvette Williams, testified that White’s trial testimony against Mumia was the result of her fearing for her life because of threats by the police.
As for the second most important prosecution witness, cab driver Robert Chobert, he was not only vulnerable because he had been driving without a license, but also because he was on probation because he had firebombed a school, and with his probation revoked for illegally driving a cab, he faced a potentially very long time in jail. And yet his probation was never revoked while he continued to illegally drive his cab at least until the 1995 PCRA hearing, with an occasional fine being his heaviest punishment.
Sabo, of course, never found any trouble with any of this, neither in the original 1982 trial nor during the PCRA hearings – a stance that is probably best explained by his general stance with regard to Mumia right from the start, which is encapsulated in the statement of a new witness who came forward years after the trial.
“I'm Going To Help Them Fry The Nigger”
In 2001 another witness—Terri Mauer-Carter—challenged Sabo's integrity, but the State Supreme Court ruled against the defense's right to have her affidavit considered. Mauer-Carter was working as a stenographer in the Philadelphia Court system on the eve of Mumia's 1982 trial. She states that she overheard judge Sabo say in reference to Mumia's case that he was going to help the prosecution “fry the nigger.”
In 2002, Journalist Dave Lindorff interviewed Mauer-Carter's former boss, Richard Klein, who was with Mauer-Carter when she states she overheard Sabo. A Philadelphia Common Pleas Court judge at the time who now sits on PA's Superior Court, Klein told Lindorff: "I won't say it did happen, and I won't say it didn't. That was a long time ago." Lindorff considers Klein's refusal to firmly reject Mauer-Carter's claim to be an affirmation of her statement.
The 2003 State Supreme Court ruling was an affirmation of lower-level Judge Patricia Dembe's argument that even if Maurer-Carter is correct about Sabo's stated intent to use his position as Judge to throw the trial and help the prosecution "fry the nigger," it doesn't matter. According to Dembe, since it "was a jury trial, as long as the presiding Judge's rulings were legally correct, claims as to what might have motivated or animated those rulings are not relevant."
As attorney Robert R. Bryan explains during his interview in this issue of Abu-Jamal News (see cover story), Mauer-Carter’s affidavit is part of the current appeal at the Third Circuit, in regards to the fairness of Judge Sabo.
Grounds For a New Trial
Also supporting a new trial is respected Philadelphia journalist Linn Washington, who has been covering the Abu-Jamal case since the morning of Dec. 9, 1981 when he arrived at the suspiciously unguarded 13th and Locust crime scene while working for The Philadelphia Daily News. In a 2001 affidavit (not part of the current Third Circuit appeal), Washington states that when he arrived “around 8:30 AM,” there were no police officers in sight guarding the scene. “As a veteran of much police beat reporting,” he “found it highly unusual” and “feared that the lack of police presence…would have an adverse effect on the sufficiency of the police investigation.”
In a recent interview, Washington argues that “Abu-Jamal deserves a new trial because he never received a fair trial or a fair hearing from any Pennsylvania state appellate court. It is obvious to non-partisan observers that the trial judge was less than impartial, the prosecutor engaged in improper conduct, police made errors in their investigation and the trial attorney was ineffective.” These are “text book definitions for an unfair trial.”
“When the Abu-Jamal case is placed in context with other cases where the state courts have overturned death and/or life sentences, it is amazing that over a long list of inmates have received relief on claims of injustice far less onerous than those in the Abu-Jamal case. Amnesty International is accurate in its conclusion that state courts have deliberately mishandled this case and those inappropriate actions by courts are part of what fuels international claims that Abu-Jamal did not receive a fair trial.”