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News :: Human Rights
Mumia's Best (and Last) Chance for a New Trial: A Legal Update
by Hans Bennett
Email: hbjournalist (nospam) gmail.com
23 Nov 2006
Black death-row prisoner Mumia Abu-Jamal's battle in court heats up as case is now on fast track with public hearings set to begin
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Mumia's Best (and Last) Chance For a New Trial: A Legal Update
Black death-row prisoner Mumia Abu-Jamal's battle in court heats up as case is now on fast track with public hearings set to begin
by Hans Bennett
“Our objective is to win a new and fair trial in this case. At the conclusion of the retrial I want my client to walk out of the courtroom a free person.”
On October 23, attorney Robert R. Bryan (attorney for death-row prisoner Mumia Abu-Jamal) filed the 4th Step Reply Brief with the U.S. Court of Appeals for the Third Circuit, Philadelphia. Because this should be the last round of reply briefs, Bryan estimates that the public hearing of arguments should begin within three months. After the hearing, the panel of judges will then decide whether to grant Abu-Jamal a new trial.
This current stage in Abu-Jamal's appeal process began in December, 2005, when the 3rd Circuit announced the beginning of deliberations and suprised many by agreeing to consider two claims not “certified for appeal” by Federal District Court Judge William 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.”
In 1982, Abu-Jamal was convicted of killing white Philadelphia police officer Daniel Faulkner in a trial that Amnesty International has declared a "violation of minimum international standards that govern fair trial procedures and the use of the death penalty,"
Calling for a new trial, supporters around the world feel that the original one was tainted by racism, prosecutorial & judicial misconduct, coerced witnesses, suppressed evidence, and a denial of Mumia's constitutional right to represent himself.
Best (and Last) Chance For a New Trial
The 3rd Circuit is now ruling on the 2001 decision by Judge Yohn which affirmed 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 be considered as weighing against a death sentence.
Mumia's case is now in the federal Third Circuit Court of Appeals. DA 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 his 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.
Four Reasons For a New Trial
The courts are 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. The NAACP Legal Defense Fund has filed a “friend of the court” brief in support of this claim.
#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. The NAACP Legal Defense Fund has filed a “friend of the court” brief in support of this claim.
At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia is 44% 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 black jurors, but only 22% of white 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.
Incredibly, just one year later, in the very next case involving this issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored the precedent. However, this would not affect the ruling against Mumia, because the court ruled that this precedent would only apply in “future trials.” This suggests that the rulings were designed to specifically exclude Mumia's case from its precedent.
#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 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 potentially the most explosive because the PCRA evidence that was judged “not credible” 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.
Gary Wakshul and the False Confession
Arguably the strongest evidence against Mumia 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 two month mental lapse resulted from being so upset about Faulkner’s death.
At trial, Durham contradicted her statement to police and testified that she 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.
#1. 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.
#2. 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 are 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.
#3. 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, medical examiner John 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 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 the DA's disclosure of Jones' home address to the defense team.
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 meeting 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. 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 intoxicated and without a license) also “altered their descriptions of what they saw, in ways that supported the prosecution's version of events.”
“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 include her affidavit in their current federal appeal. Mauer-Carter was working as a stenographer in the Philadelphia Court system on the eve of Mumia's 1982 trail when 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.”
Journalist Dave Lindorff recently 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 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."
Organizing for December 9
Interviewed by INSUBORDINATION, Pam Africa (coordinator of Mumia's support network) stressed the urgency of the legal battle and the need to apply political pressure from the grassroots. “We must call attention to Mumia's current battle in the courts. We know the Supreme Court won't hear his case, so this current phase truly is the last chance for a new trial.”
“I believe Mumia is innocent and am personally calling for his immediate release. However, I'll work with anyone supporting a fair trial. By demanding a new trial, we can work with those who know the trial was rotten but are unsure of Mumia's innocence. As more people learn about the injustice, our movement will only become stronger. The evidence is on Mumia's side.”
Activist around the country are organizing for Dec. 9—the 25th anniversary of Mumia's incarceration. Africa is urging supporters to come to Philly for a massive demonstration or to otherwise organize an event in their hometown.
Concluding her fiery speech, Africa challenged the crowd to “rise up” and force the courts to actually serve the people. “We understand that they're getting ready to kill another black revolutionary who has refused to bow down and suck up to his oppressor. Mumia's case represents all that is wrong with this system. We must take action now before it is too late!”
Link to Bennett's recent essay: Is It a Crime to Honor Mumia?
Hans Bennett is a Philadelphia-based photojournalist who has been documenting the movement to free Mumia and all political prisoners for more than 5 years. He can be contacted via email: hbjournalist (at) gmail.com
Check out his brand new website: www.insubordination.blogspot.com
link to the October 23 legal brief:
For more information about Mumia Abu-Jamal's case:
www.mumia.org or www.freemumia.com
This work is in the public domain