Update to Race for Justice

By Leonard Weinglass

Revolutionary Worker #925, September 28, 1997

Political prisoner Mumia Abu-Jamal was framed up and railroaded for the 1981 murder of a Philadelphia cop and has been on death row since 1982. Mumia's lawyer, Leonard Weinglass, recently wrote an update for the new German edition of his book, RACE FOR JUSTICE: Mumia Abu-Jamal's Fight Against the Death Penalty (Common Courage Press), 1995. This update covers the important events in Mumia's case between the summer of 1995 and May 1997.

Since the publication of Race for Justice, approximately two years ago, more favorable developments have occurred in the case of Mumia Abu-Jamal than in the previous 12 years. Still he remains on death row in Pennsylvania with the possibility of a new execution date being set in 1997.

In two protracted court proceedings in 1995 and 1996 each of the three prongs on which the prosecution based its case--(1) that the witnesses on the crime scene identified Mumia as the only person who could have killed Officer Faulkner; (2) that Mumia's gun was the murder weapon; and (3) that Mumia confessed to the shooting at the hospital--was so thoroughly rebutted and discredited as to make a new trial for Mumia inevitable to all but the most committed advocates for his execution.

The new facts that emerged with respect to the crime scene included the following:

William Singletary, an eye-witness who was found at the crime scene by the arriving officers, but who did not testify at trial, testified that he saw an individual, not Mumia or his brother, shoot Officer Faulkner and then flee the scene. These observations are precisely what he related to the detectives on the night in question, only to have them threaten him unless he changed his story. He was held at the police station for hours and eventually forced to leave Philadelphia as the result of police threats and harassment. Unlike the prosecution witnesses Singletary had no criminal record, was a decorated Vietnam veteran and family man, who had no motive to lie.

Another witness, Debbie Kordansky, who also did not testify at the trial due to the fact that she "didn't like black people" and "didn't want to help the defense," was subpoenaed to testify and acknowledged that she had told the police on the night in question that she saw someone from her hotel room overlooking the street run after the shooting had stopped.

Still another witness, Robert Chobert, who did testify at trial for the prosecution and identified Mumia as the shooter, admitted that he had originally told the police that the shooter had run away, but changed his story six months later at trial because he was "in error." The reason for the change became clearer when he admitted that the police learned of his having driven his cab that night without a license, causing him to seek the assistance of the prosecutor handling the case. Sheepishly, he admitted that he was able to continue driving his cab for at least another 10 years without a license.

A long and expensive investigation located Veronica Jones in 1996, a witness who also denied at trial seeing anyone run from the shooting scene. With her life as a prostitute now a dim memory of her long abandoned past she came forward and told the court what she had told the police within a week of the shooting: that she did, in fact, see two men run from the scene after the shooting stopped. What caused her to change her story at trial was also explained--a visit just prior to her testifying by two police detectives in the jail where she was awaiting trial on serious charges who threatened her with a 10-year prison sentence if she helped Mumia's defense. At the time she was 20 years old and faced the loss of her three infant daughters if sent to prison. After hearing this testimony an outraged Judge Sabo ordered her jailed on an old bad check warrant. She was led from the courtroom in handcuffs.

In 1995 the defense learned for the first time that the police had recovered from the clothing of the slain officer as he lay on the sidewalk a driver's license or application belonging to a third person who had been arrested as a suspect and brought to the police station that night. The prosecution kept this fact from the defense for over 13 years! The individual named on the license was located and confirmed during a court hearing that the document was his and that he had, in fact, been taken into custody that night. He, however, had an ironclad alibi and was released; but not before giving the police the name of the individual who had borrowed his license. That person, now deceased, was also taken into custody and placed in a line-up at which he was, according to this witness, identified by a female witness.

The accumulated weight of this new information devastated the prosecution's main thesis at trial concerning the crime scene--that Mumia had to be the shooter since only he, his brother and the Officer were present. Judge Sabo found none of the above either credible or, where conceded as true by the prosecution, persuasive. In his opinion denying Mumia a new trial he adhered completely to the prosecution's theory of the case as presented at trial in 1982 and disbelieved or disregarded the new evidence.

In early 1997, after Judge Sabo had ruled, another prostitute with relevant information, Pamela Jenkins, was located. She had served as an informant for the FBI and was a key prosecution witness before a federal grand jury investigating police corruption. She signed a sworn statement to the Pennsylvania Supreme Court stating that she had been threatened by the police if she refused to name Mumia as the shooter. Insisting that she was nowhere near the crime scene she adamantly refused and was ultimately protected by her boyfriend, a Philadelphia police officer who had become enamored with her when she was a 14-year-old sophomore at the high school where he was serving as a truant officer. Most relevant was her statement that her friend, Cynthia White, another prostitute and the prosecution's chief witness against Mumia at trial, confided to her that she testified only after having her life threatened by the police. The Supreme Court, as of this writing, is considering whether or not to order a court hearing so her testimony could also be made part of the record.*

The second prong, that Mumia's gun was the murder weapon, was also rebutted by evidence that was equally persuasive in arguing for a new trial:

The medical examiner's report was entered into the official record for the first time, specifically noting that the bullet removed from Officer Faulkner's brain was a .44 caliber bullet. (Mumia's gun, a .38 caliber, could not have fired such a bullet.)

Mumia's trial counsel admitted under oath that he could not recall seeing the autopsy report, did not question the medical examiner on it during the trial, and did not introduce it into evidence.

The medical examiner was subpoenaed to testify at the 1995 hearing and was obviously terrified to acknowledge his own report before a courtroom half filled with police spectators. Shamefully, he could not recall the autopsy, his own notes, or any work he had done on the case.

Gun expert Fassnacht testified on behalf of Mumia that he found it incredible that the police allegedly failed to conduct a simple test to determine if Mumia's gun had been recently fired. It was a test he himself had taught the Philadelphia police when he served as a police instructor. Nor could he fathom why the police did not immediately test Mumia's hand to see if he had recently fired a weapon, a test that is routinely done in homicide cases.

Also called into question was the contradictory finding by the police laboratory that the fatal bullet was .38 caliber. New evidence pointed to the fact that the medical examiner removed two lead pieces of a bullet from the deceased officer, but only one was received and examined by the police laboratory. No one was called by the prosecution to explain what happened to the missing piece--and how it would have influenced the police lab findings as to the caliber of the bullet.

Once again, Judge Sabo remained unpersuaded. He simply discounted all this new information respecting the bullet, Mumia's gun, the inexplicable failure of the police to connect the weapon to the murder, or Mumia's counsel's incompetence.

Lastly, the alleged confession at the hospital was so thoroughly discredited that even a conservative, leading American journalist (also a lawyer), after reviewing the entire record, concluded in the prestigious magazine, American Lawyer, that the confession was a fabrication. The new evidence was based on the testimony of Officer Wakshul, who did not appear and testify at Mumia's trial because he was allegedly on vacation. The defense located him and subpoenaed him to testify in a court hearing in 1995. He testified as follows:

He did tell the police on the night of the shooting that "the negro male made no comments." However, several months later, after attending a meeting with the prosecutor, be suddenly remembered that Mumia had, in fact, confessed. When asked why he didn't note that fact earlier, he replied, "I didn't think it was important!" He also acknowledged that while he was officially listed as being on vacation during the trial in 1982 he was, in fact, at home in Philadelphia waiting to be called to testify if the prosecutor wanted him.

Judge Sabo found that his later recollection after meeting with the prosecutor was more accurate and ignored his earlier statement on the night in question. On this issue Mumia's request for a new trial was also denied.

Not only was the factual basis for the case against Mumia effectively undermined during hearings in 1995 and 1996, the trial process itself was shown to have been deficient in terms of providing Mumia with the minimal rights to which he was entitled, particularly the means to defend himself.

In three days of testimony his trial lawyer admitted that he had not talked to a single witness before trial, was totally unprepared, did not even consider tactics or strategy for the guilt phase of the trial, made errors of law in failing to object at critical points, and didn't pursue obtaining the needed funds for an investigator and expert witnesses.

His investigator admitted that he dropped out of the case before the trial began because there were no funds. He had interviewed just two witnesses while he knew the police had interviewed more than ten times as many. He had spent most of his time trying to interview Cynthia White, the chief prosecution witness. However, each time he sought to interview her on the street corner she worked as a prostitute he was deterred by the presence of two plainclothes officers protecting her as she worked.

Gun expert Fassnacht testified that he declined to assist the defense at trial because the $150 the court had authorized for his work was insufficient.

Mumia's trial attorney testified that he had tried to retain a badly needed pathologist as a defense expert but could not find a single pathologist to agree to take the case for the S150 that had been authorized by the Court.

A total of approximately $13,000 was spent by the County for Mumia's defense, including his lawyer's total fee, an investigator and a photographer. The inadequacy of such funding may be gauged by the spending patterns of other courts in urban areas. Los Angeles County spends $60,000 for the defense of each capital case while a special commission in New York advised the Governor that he should anticipate spending $600,000 on each case.

Not only was Mumia hampered by inadequate resources and an ineffective attorney, he was subjected to a trial in which the jury had been improperly selected through a process of racial exclusion. The prosecution had conceded before the Pennsylvania Supreme Court in 1989 that it had removed eight qualified African American jurors. The defense investigated that claim and discovered that, in fact, the prosecution had removed eleven. When confronted with the new evidence the district attorney readily conceded they had removed ten. As the record now stands of the fifteen persons removed from jury service by the prosecution, ten, or two thirds, were African American. In 1986 the U.S. Supreme Court denounced the practice of racial exclusion by state prosecutors. The Pennsylvania Supreme Court, when it decided Mumia's appeal in 1989, sidestepped the Supreme Court decision due, in part, to the prosecutor's claim that only eight African American jurors were excluded, and those for allegedly non-racial reasons, plus the irrelevant fact that Mumia had also struck a single African American juror.

With this issue once again pending before the Pennsylvania Supreme Court on the basis of new information, dramatic evidence of the true motivation of district attorney's office in excluding African American jurors unexpectedly surfaced. The current District Attorney for Philadelphia, Lynn Abraham, who is being opposed for re-election by a former assistant District Attorney now in private practice, released an official training videotape made in 1987 by the challenger when he was serving as an instructor in the District Attorney's office and which reflects what must have been the D.A.'s office policy. On that tape he is lecturing young D.A.'s on how to strike jurors on the basis of race and present pretextual rationalizations for those race-based strikes. One of his suggestions included allowing African American jurors whose early background included exposure to segregationist practices in the deep South to sit since they, presumably would have an instilled fear of authority. This was precisely what occurred in Mumia's case. Of the two African American jurors who deliberated, one was an elderly woman from South Carolina and the other a male from the Virgin Islands. The defense has asked the Supreme Court of Pennsylvania to review the tape as evidence of the prosecutor's tactics. A decision is pending.**

Another issue recently brought to the attention of the Pennsylvania Supreme Court was an official finding by a federal judge in Pittsburgh in late 1996 that prison authorities had wrongfully opened and copied mail correspondence between Mumia and his attorneys at a critical time in 1995 just prior to his filing of his new court papers, causing him "actual harm" in his quest for a new trial. This was the first time that any judge anywhere agreed with what Mumia had been claiming for 15 years--that his rights were systematically violated by representatives of the state. This finding, now under appeal, led the defense to ask the Pennsylvania Supreme Court to dismiss the charges against Mumia or, at the least, grant a new hearing and/or trial. The Court has yet to rule.

The pending twenty-three separate issues raised on appeal, including the now established record on prosecutorial misconduct in manipulating and withholding evidence, will be decided sometime in 1997 by the six justices sitting on the Pennsylvania Supreme Court. There is a vacancy on the Court caused when the Chief Justice, the only African American on the Court, unexpectedly announced his early retirement shortly after Mumia filed his appeals brief. One of the six Justices remaining was the District Attorney of Philadelphia who opposed Mumia's last appeal in 1989. The brief against Mumia was filed under his name. A request that he disqualify himself from sitting on this appeal is still undecided. What was decided, however, was a request by Mumia that the Court hear oral argument from his counsel before deciding the case. That request was denied.

Should Mumia lose his case before the Pennsylvania Supreme Court the Governor of Pennsylvania, Thomas Ridge, a conservative Republican whose background includes military service in Vietnam as a sharpshooter in the dreaded I Corps, has already signaled his intention to sign a new death warrant for Mumia's execution setting forth a specific date.

In that event Mumia's defense would seek a stay of his execution by filing a petition for habeas corpus review of his case in the federal district court in Philadelphia. It is anticipated, although not certain, that the federal court will stay the execution until it has had the opportunity to review his case to see if violations of federal law occurred. This stage of the proceedings has always been considered critical by Mumia's defense. Since 1977, when the death penalty returned to the United States, federal judges have reversed over thirty-five percent of state death convictions for violations of federal rights. These judges, unlike most state judges, are not elected and serve for life, unless impeached. It was anticipated that Mumia's case would finally receive an independent review in the federal courts if he was wrongfully denied his federal rights by the state courts of Pennsylvania.

No longer. On April 24, 1996 President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act of 1996, following the Oklahoma City bombing one of whose provisions severely restrict the power of federal judges to conduct an independent review of state proceedings. In essence it requires federal judges to defer to the state courts and permits state convictions to stand even if violations of federal rights occurred just so long as they are not "unreasonable." While this drastic curtailment of traditional habeas corpus review is now being challenged in the courts, it is mostly Reagan and Bush appointed judges who will be deciding whether this major loss of rights violates the constitution.

For more than fifteen years, Mumia, who has lived in the shadow of death, has asserted his innocence. The new information brought out in the last two years, cited above, supports that claim. The record now reflects that an innocent man's conviction was secured through coercion of witnesses, fabrication of a confession, suppression of evidence, and other gross police and prosecutorial misconduct, compounded by the ineffectiveness of his trial counsel and the ruling of a hostile court. Even those who advocate his execution publicly acknowledge that if given a new trial Mumia would most likely be found not guilty.

Once again, the American system of criminal justice is being challenged by issues of race, class and politics. The life of a black political activist lies threatened by those same forces who have historically urged a national system of intimidation and control. Nothing short of complete vindication for Mumia Abu-Jamal, already too late after fifteen years of tortuous incarceration, will prevent yet another injustice in a history already saturated with the blood of innocents.

May 1997
Copyright Leonard Weinglass
Reprinted with permission

* RW note: This hearing was held June 1997. Pamela Jenkins testified about how she had been threatened by the police if she refused to name Mumia as the shooter. Jenkins also testified that Cynthia White had been a police informant and that she had seen Cynthia White earlier this year. Sabo ruled that Pamela Jenkins testimony was not credible. Pamela Jenkins' testimony and Sabo's ruling are now part of the record of Mumia's case that is being considered by the Pennsylvania Supreme Court.

** RW note: This request was later denied by the Pennsylvania Supreme Court.

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