Mumia Habeas Filing Exposes Injustice, Part 3

Conflicting Stories and "Repressed Memories":
The Prosecution Story

By C. Clark Kissinger

Revolutionary Worker #1042, February 13, 2000

Since I began this series (see Parts 1 and 2 ), Mumia's defense team has filed another important motion, one requesting a "review for reasonableness" of the entire Pennsylvania court record. This motion exposes Judge Sabo's findings of fact in their particulars as completely unreasonable. It further contends that beyond these particulars, "the state court factfinding deserves no deference because Judge Sabo harbored deep-rooted bias and hostility towards Jamal in particular, and towards criminal defendants generally." I'll be referring to this motion, as well as to the earlier memorandum of law, throughout the rest of the series and will devote an entire part later on to its very important points on Sabo's "deep-rooted bias and hostility."

In this part, I will follow the description of the evidence in the "memorandum of law" filed on December 7. With that as background, Part 4 will examine the defense team's claims on the judge's violations of law and the prosecution's deceptions, and how they prevented Mumia from receiving a fair trial.

Let me start with an important point: At this point, the defense does not have to prove Mumia's innocence. Still less does it have to prove the guilt of a third party. Right now the defense must prove one thing, and one thing only: that the errors of the judge and the deceptions of the prosecution combined to prevent Mumia from receiving a fair trial the first time around.

Those who oppose Mumia's bid for a new trial try to cover this over. They try to bait the defense into giving a different scenario, into proving that someone else did it, or into making Mumia "tell his version" outside of the courtroom. All that is just so much noise. The legal question before the Federal District Court right now is--did Mumia get a fair trial. With that as background, let's look at the description of the evidence in the memorandum of law.

Faulkner Stops Billy Cook

Everybody agrees that it all began when Officer Faulkner pulled over Billy Cook, Mumia's brother, at close to 4 a.m. at the corner of 13th and Locust. Faulkner reported his location and then, before even getting out of his patrol car, ordered a paddy wagon to back him up. The prosecution insists that Billy Cook was alone in his Volkswagen; why Faulkner ordered a wagon for a routine traffic stop of a lone individual remains a mystery.

Three prosecution witnesses and one defense witness testified about the stop. All agreed that Faulkner got out first. The key prosecution witness was Cynthia White. White testified that Faulkner and an occupant of the VW got out, and both began to walk towards the police car, talking or arguing as they walked. White says that after they reached the sidewalk, the man punched Faulkner in the face. According to White, Faulkner then whirled the person around, put his arms behind him and made a motion as if to put him in handcuffs; however no handcuffs were ever found.

Prosecution witness Mark Scanlan differed markedly from White. Scanlan placed Faulkner in the street, not on the sidewalk. He said that he saw Faulkner beat someone who was "spread-eagled" over the hood of the police car, with what appeared to be a flashlight or billy club. This matches the testimony of police officers who took Billy Cook in custody and reported fresh blood running down his neck and the left side of his face. A third prosecution witness, Albert Magilton, said he saw Faulkner stop the car and that Faulkner and the civilian begin to walk, but then Magilton turned away and didn't look back until after hearing gunshots.

The fourth witness to the stop was Dessie Hightower, a defense witness. Hightower had an unobstructed view. He testified that Faulkner walked not to the driver's side of the VW, but to the passenger side and was trying to get somebody out of the car. Hightower also recalled seeing "one black male sitting in [the VW], possibly a Jamaican," right after the shooting. Hightower's testimony of a second person in the VW could help to explain why Faulkner radioed for backup, as well as why Faulkner had the driver's license of a third person on him at the time of his death--a fact withheld from the defense and the jury in the 1982 trial.

The Shootings

Three witnesses reported seeing Mumia across the street from the police car, walking fast and then running towards the scene where Faulkner was beating his brother. Two witnesses, Magilton and Scanlan, reported seeing nothing in Mumia's hands as he approached. Neither witness saw Mumia fire any shots nor saw any flashes from a weapon as he approached Faulkner. Scanlan drew a diagram the night of the incident which showed Faulkner facing Mumia as Mumia ran toward the scene. Only Cynthia White claimed at trial to have seen a gun in Mumia's hands as he ran towards his brother and Faulkner.

One extremely curious thing about all this is that not a single witness who testified at the trial could recall seeing Faulkner shoot Mumia--not even the prosecution star, Cynthia White, who claimed to see everything. Yet Faulkner's shooting of Mumia is the one undisputed fact of the whole case! The bullet entered Mumia's right chest and moved in a downward direction through his rib cage, piercing his liver and coming to rest in his lower back. Scanlan's diagram put Mumia in the street when the first shot was fired, and even Cynthia White put Faulkner up on the sidewalk holding Billy Cook against the car, which would have him facing more toward Mumia as he approached from the street. The memorandum of law filed by Mumia's lawyers suggests that the explanation most consistent with the testimony (aside from Cynthia White's) and Mumia's wound is that Officer Daniel Faulkner saw Mumia approaching from the street and shot him as he approached.

But the prosecution argued that Mumia ran up to Faulkner, then circled around from behind and shot him in the back. They further claim that Faulkner, though gravely wounded and falling down, whirled around and fired a shot that somehow passed downwards through Mumia. Mumia, in this scenario, then stood over the wounded Faulkner and shot him in the head. It is worth noting that some legal experts believe that this scenario, improbable though it may be, was chosen by the prosecution because it is the only one that could even possibly justify a finding of first-degree (premeditated) murder and a death sentence under Pennsylvania law.

The prosecution has two big problems with this scenario. I've already laid out the first problem: the trajectory of the bullet indicates Faulkner shot Mumia while pointing his gun from a higher position. Their second problem? The only witness testifying to the precise prosecution scenario is Cynthia White. The other prosecution witnesses who claim to have seen either Mumia, or someone who looks like Mumia, shoot Faulkner cannot account either for who fired the first shot or for how Mumia was shot at all.

The testimony of Cynthia White is truly problematical. At the time of the trial, she was serving an 18-month sentence for prostitution in Massachusetts. She had been arrested 38 times in Philadelphia for prostitution and had three open cases awaiting trial when she took the stand. White gave a statement the night of the shooting. After this, the police in Faulkner's precinct put White's picture on the bulletin board, with a notice to contact the homicide unit if she was arrested. Sure enough, she was arrested twice in the next 10 days and taken to the homicide unit, where she gave revised statements both times--each one more heavily loaded against Mumia. By the time of the trial White was saying that the diagram she drew on the night of the incident was wrong, that her first estimate of the shooter's height was off by more than four inches, and that she had also placed the actors prior to Jamal's appearance wrongly. (In the next part, I'll examine the deal that was struck with Cynthia White...and how suppression of this deal from the jurors clearly violates established legal procedure and Mumia's rights.)

Besides Cynthia White, the other star witness for the prosecution is Robert Chobert, a cab driver. Chobert says that he looked up from writing a fare after hearing the first shot, but never saw Faulkner shoot Mumia. The memorandum of law points out that if this part of Chobert's testimony is true, it would confirm that Mumia was shot first. Chobert described the man who shot Faulkner as 6 feet tall and between 200 to 225 pounds; Mumia weighed 170 pounds at the time of the incident. Chobert reported hearing shots, but never seeing a gun or any flashes from a gun barrel. He insisted at the trial that Mumia was the shooter, despite the disparity between the description he originally gave to the police and the man he saw in court. But Chobert was also greatly susceptible to police pressure, being on probation for a felony and illegally driving his cab with a suspended license--facts which Sabo and the prosecutor McGill kept from the jury, and which I'll also examine in more depth in Part 4.

Of the other witnesses, Mark Scanlan mis-identified Mumia as the driver of the Volkswagen and admitted that there was "confusion when all three of them were in front of the car." Scanlan also said that he was certain that the shooter had "an Afro hairstyle," and refused to identify the dreadlocked Mumia as the shooter at the trial. As the memorandum notes, Scanlan--a white man--clearly had problems distinguishing one Black man from another, a fact that has particular relevance if there was indeed another passenger in the VW besides Billy Cook. In fact, Scanlan is only certain that shots were fired and that the shooter wore an Afro. The final prosecution witness, Albert Magilton, identified Mumia as the man who ran across the street, but doesn't claim to have seen him shoot at anyone.

Testimony of Someone Fleeing the Scene

Five different witnesses reported seeing someone flee the scene of the shooting before the police arrived; one of them identified the person fleeing as the man who shot Faulkner.

Dessie Hightower, a college student, testified for the defense that 13 to 15 seconds after the shooting stopped he saw a 5-foot 9-inch person wearing dreadlocks run down the south side of Locust towards a side street and disappear. Robert Chobert told the arriving police captain that the shooter "ran away," and later reiterated that the shooter ran 30 feet in the same direction that Hightower described. At the trial, however, Chobert changed his estimate to 10 feet, saying that he must have been mistaken on the night of the shooting.

Veronica Jones originally told investigators she saw two men "sort of jogging" from the scene, also going east on Locust. On the stand, she denied this. (But when Jones suddenly began to testify about police coercion to change her story, Judge Sabo quickly interrupted her story, deemed this "irrelevant," and ordered Mumia's lawyer to stop this line of questioning. I'll have more to say on Veronica Jones next week.) Debbie Kordansky, who did not testify at the trial, reported seeing "a man running on the south side of Locust Street." Also, at the 1995 hearings, William Singletary testified that Jamal was not the shooter, and that the shooter fled down Locust Street.

Mumia at the Hospital

After beating Mumia, the police eventually took him to a hospital three blocks from the crime scene, where he was under treatment within five to ten minutes of arrival. The attending physician, Dr. Coletta, found Mumia to be "weak...on the verge of fainting...if you tried to stand him up, he would not have been able to stand." Another doctor testified that Mumia was lethargic. All witnesses agree that Mumia could not walk into the hospital under his own power, and two police officers--Gary Wakshul and Stephen Trombetta--stayed with Mumia from the time he was driven to the hospital until the doctors started treating him. None of these witnesses reported hearing Mumia say anything out of the ordinary. In fact, Gary Wakshul wrote in his report that "the Negro male made no comments," and failed to mention any confession when interviewed a week after the incident.

Yet two months later Officer Gary Bell--Faulkner's partner--and a hospital security guard, Priscilla Durham*, suddenly claimed to have heard Mumia shout in the hospital, "I shot the motherfucker and I hope that he dies." The memorandum of law points out that Bell never wrote up an incident report about this alleged confession of his partner's murder, nor did he mention it in his patrol log that day, nor did he see fit to tell any fellow officers, his wife, his brother or anyone else until Internal Affairs interviewed him on February 25. Bell told ABC's "20/20" program that he was so stunned by the confession that he repressed the memory of it until someone specifically asked him. In fact, Officer Bell was interviewed by detectives on December 16 and even then he never mentioned hearing a confession.

As for Durham, she never reported this confession to any officers, despite the fact that she came in contact with police at the hospital daily. Nor did she mention it when she was interviewed by detectives. As with Officer Bell, it took Miss Durham almost two months to remember Mumia's alleged confession. This led to the following exchange in the 1982 trial:

THE DEFENDANT: Miss Durham, why did you wait until February the 2nd to make your statement?

THE COURT: Okay. Mr. Jamal, it is obvious to the Court that you intend to disrupt the proceedings in front of the jury.

THE DEFENDANT: I am not disrupting. It's obvious I intend to defend myself.

THE COURT: And once again I am removing you from the courtroom.

In an attempt to explain why she had not reported the confession earlier, Durham claimed at the trial to have dictated a statement about the event shortly afterwards to a hospital investigator who took handwritten notes. This statement was never given to police and has never been produced. Yet at the trial, Judge Sabo decided to admit as evidence an unsigned typewritten facsimile of that alleged statement offered by the prosecution, even though Durham said she had never seen this typewritten statement before.

Durham, in contrast to the doctors, described a scene where Mumia was violently thrashing and screaming, while officers restrained him. It was then, she says, that she heard him yell his confession. Strangely, none of the 15 or 20 officers that Durham described as also being in the room, some of them supposedly involved in restraining Mumia, ever reported the confession either. It is truly remarkable that not a single officer would have seen fit to make a note of or report a public confession by a murder suspect. Nonetheless, the confession was entered into the trial.

The Strangely Selective and Inconclusive Ballistics Evidence

The final bits of evidence revolve around the ballistics tests on the gun found at the scene that was registered to Mumia. The state argues that the ballistics tests on the retrieved bullets showed rifling grooves consistent with the barrel of this gun. The "Memorandum on Reasonableness" filed recently shows that the ballistics testimony of the prosecution was riddled with inconsistency and that the defense was handicapped by its inability to hire its own ballistics expert. More important, "consistent with" is an extremely elastic term. The defense team points out that "the jury should have learned from a defense [expert] that the investigatory record narrowed the range of hand-held firearms that are consistent with the bullet removed from the deceased to that of many millions of guns"! Moreover, no test has ever definitively linked the bullets to Mumia's gun.

The defense team raises a further very important point on the ballistics evidence. It would have been simple and natural for the police to conduct two tests on the night in question: first, a test of Mumia's hand for nitrate residues to prove that he had recently fired a gun; and second, a test of Jamal's gun itself to see if it had been recently fired. As the "Reasonableness" Memorandum remarks, "So astounding is the absence of such reports...that the only rational inference to be drawn is that the test results by crime scene investigators were suppressed as unhelpful to the prosecution's theory of guilt."


Even at face value, the evidence for the prosecution is hardly convincing. The question before the appeals courts is NOT, however, whether such evidence is sufficient for a finding of guilty. The appeals court must decide whether this evidence was manipulated in such a way that the jurors could not correctly weigh its truthfulness; whether the court suppressed other evidence (some of which I've indicated above) that could have helped Mumia refute the prosecution's case; and whether the court violated its own procedures in ways to prevent Mumia from exercising his rights and getting even a shot at justice. In the next part, I'll take a closer look at all this and show how the prosecution unconscionably twisted some evidence, very likely manufactured other evidence, and finally prevented the defense from presenting (and in some cases even knowing about) important evidence pointing to Mumia's innocence--all in violation of even their own loaded rules.

* Durham, who originally denied knowing Faulkner, later admitted that she did in fact know him and cried on hearing that he had been shot.

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