Mumia Habeas Filing Exposes Injustice, Part 4
Building a Railroad:
The Suppression, Manipulation and
Fabrication of Evidence
By C. Clark Kissinger
Revolutionary Worker #1044, February 27, 2000
In Part 3, I analyzed many weaknesses in the prosecution's case. The key question before Judge Yohn of the U.S. District Court, however, is not the strength or weakness of the prosecution's case. The question is whether Mumia had the chance to properly defend against that case and whether the jury had the chance to properly weigh it.
This is an important principle covered over by those who want to kill Mumia. And the two legal memoranda filed by the defense team (which I refer to as the "Memorandum of Law" and the "Reasonableness Memorandum") are filled with examples of wanton violations of due process by the prosecution and the trial judge, Judge Sabo--violations of Mumia's right to a fair trial.
Secret Deals with Witnesses Kept from the Jury
To begin with, these defense documents charge that the police and prosecution manipulated both Cynthia White and Robert Chobert to provide testimony favorable to the prosecution and that the jury was denied the chance to know this.
Cynthia White was the single most important prosecution witness. As noted in Part 3, she was serving an 18-month sentence for prostitution in Massachusetts at the time of the trial. She had been arrested 38 times in Philadelphia for prostitution and had three open cases awaiting trial when she took the stand.
So what happened? The Philly police basically played "hard cop/soft cop" on Cynthia White until her story fell into line with the prosecution's story. First, they picked her up twice in the week following the shooting. But when she finally proved willing to cooperate, the defense notes that "she was...given police protection while she worked as a prostitute in exchange for her testimony." [See Reasonabless Memorandum, p. 8.]
Like the Eveready bunny, the deal kept on working and working: five years later, when Cynthia White was arrested on felony charges, a Philadelphia homicide detective appeared in court to ask that she be released without bail because she was "a Commonwealth witness in a very high profile case." (This was testified to in appeal hearings in 1997). The judge released White, she jumped bail and never showed up for trial. Yet Judge Sabo either struck from the record, or simply forbade, any testimony or questions in this direction--including testimony at the original trial from Veronica Jones, who said that police told her "that she would be allowed to work the street with impunity, like Cynthia White, if she would incriminate Jamal." [ibid., p.9]
Robert Chobert, the cab driver who claimed at trial to have seen Mumia shoot Faulkner, also changed his story between his first account and the trial some months later, again to the benefit of the prosecution. "On the night of the shooting, he told police the shooter was a large, heavy man (estimated to be 200 to 225 pounds), in his mid-thirties.... He also told crime scene investigators that the shooter, wearing a light tan shirt and jeans, `ran away.' Jamal, on the other hand, was 28 years old, slim (weighing only 170 pounds), was wearing a red and blue ski jacket, and fell wounded to the curb near the scene of the shooting, physically unable to run." [Reasonableness Memorandum, p. 11]
At the time of the shooting, Chobert was on probation for an arson for hire. He was also driving his cab on a suspended driver's license. The Reasonableness Memorandum points out "rather than prosecute that violation...McGill promised to `look into' how Chobert could get his license reinstated." [ibid., p. 13] After his testimony, Chobert was allowed to continue operating his cab and served out his probation without further incident.
The problem is not that these two were allowed to testify, but that (as the Memorandum of Law points out) the "State never disclosed that these witnesses were prompted to assist the prosecution through favors." Nor was the fact that Chobert was on probation and could be sent to prison for any violation even allowed into the record.
Indeed Judge Sabo either struck from the record or blocked any testimony that would reveal deals between the prosecution and key witnesses. Yet the U.S. legal system is supposed to guarantee, as a basic principle, that the jury can weigh any facts that "might motivate a witness in giving testimony." The Memorandum of Law cites case after case of convictions overturned because prosecutors hid knowledge of secret deals between witnesses and the state.
But Prosecutor McGill did more than just hide evidence. He exploited Sabo's refusal to allow questions around Chobert's probation by telling the jury that Chobert had absolutely no reason to change his testimony to suit the prosecution case. Here too the defense team cites other cases where similar instances of "improper vouching" for a witness led to overturning of the verdict.
Philadelphia's Witness Coercion Program
The defense team points out that a "total of five witnesses, each independent of the others, observed and reported seeing someone flee from the scene of the shooting toward a nearby alleyway." Of those five, defense witness Dessie Hightower stuck with his original story, despite police attempts to get him to recant through coercive use of lie detector tests. (None of the prosecution witnesses, including those who repeatedly changed their stories, were ever tested.)
Robert Chobert recanted his first story. On the scene that night he said that the shooter had run 30 to 35 feet, but in court he changed his estimate to ten feet (a change that conformed to the prosecution's scenario). Debbie Kordansky was never called, due to the prosecution's withholding of her address and the defense lawyer's dereliction.
The remaining two--Veronica Jones and William Singletary--were coerced into changing their stories (and both testified to this in the state's appeal hearings of 1995-1997). Veronica Jones first talked to police less than a week after the shooting. She said she first heard three shots, then "looked down Locust Street towards Johnny Dee's and I saw a policeman fall down. After I saw the policeman fall I saw two black guys walk across Locust Street and then they sort of started jogging. The next thing I saw was the wagon coming." [Reasonableness Memorandum, p. 19] But six months later, on the witness stand, she denied this story.
At the 1996 PCRA hearing Veronica Jones explained why she had changed her story in the original trial. She explained that at the time she testified she was in jail on serious felony robbery and gun charges. She testified that police visited her in jail and said "they could help me off those charges if I helped them." [ibid., p. 20] The interrogating cops repeatedly stressed that Jones faced up to ten years in prison and the loss of her children if convicted. And they used the example of Cynthia White as a "carrot" to go along with this stick. Veronica Jones testified that they told her that "I was to name Mr. Jamal as the shooter, you know. And if I was to do that, I was supposed to do something like this girl named Lucky White. They said we made a deal with her and it was going to work out for her so they could make it work out for me." [ibid.]
When she recanted her original story of the two men jogging away at the 1982 trial, Jones was given probation. But then in 1996 when she returned to her original story, Judge Sabo allowed Veronica Jones to be arrested directly off the witness stand for an old bad check warrant! Thus did the judge perversely lend credence to Jones' claims that she was threatened with jail for testimony unfavorable to the prosecution.
Again, the defense memoranda cite many precedents where just such coercion of witnesses, including coercive use of lie detector tests, has been held to corrupt and deny due process.
Adding to the outrage, the memoranda point out that the prosecution withheld from the defense the fact that a driver's license belonging to a man named Arnold Howard was found on Faulkner! This only came to light in 1995, when the defense also discovered that Howard had been tested by police to see if he had fired a gun and was questioned by the cops on suspicion of being the shooter. He passed the test and told police that he had lent the license to Kenneth Freeman--a friend of Mumia's brother Billy Cook. Freeman died a few years after the trial.* Clearly, this evidence would have severely undercut the prosecution's theory that the only person in the Volkswagen was Mumia's brother and that, therefore, the only persons at the scene of the crime with Faulkner were Mumia and his brother. Conversely, this evidence could have buttressed the idea that a third person shot Faulkner and fled the scene. But the jury never got to hear it.
More on the Fabricated Confession
In Part 3 I discussed some of the problems with the supposed confession: how those claiming to hear it only reported it several months later and how others at the scene, including the cop who guarded Mumia the whole time and the doctors who treated him, reported no remarks whatever by Mumia. I also noted that one of the witnesses claiming to hear a confession, Priscilla Durham, testified to 15 or 20 cops being in the room at the same time. Incredibly, not one of these trained police officers thought it was at all significant that Jamal had confessed...until over two months later when the police internal affairs unit began investigating Mumia's charges of brutality. Shortly after the internal affairs investigation, Prosecutor McGill asked a meeting of police whether anyone might have heard a confession! McGill's convening of this meeting--a fact which itself should have tended to cast doubt on the confession in the jury's minds--had been hidden from the defense (and thus the jury) until the 1995 appeal hearings.
Moreover, because of the deception of the prosecution and the connivance of Judge Sabo, the jury was not able to hear evidence that would have called this fabricated story of a confession into serious doubt.
Specifically, the defense wanted to call police officer Gary Wakshul, who had actually written a report indicating that "the negro [sic] male made no comments." The prosecution asserted that Wakshul was on vacation and "unavailable"; Judge Sabo then refused to grant a continuance, even for an hour or two, to determine whether Wakshul was at home. As it happens, Wakshul was technically on vacation but he was at home and could have easily testified. Again, the Memorandum of Law cites many cases to the effect that such deliberate deception by the prosecution results, to quote one precedent, in a "pretense of a trial which in truth is but a means of depriving a defendant of liberty."
Suppression of the Political Vendetta Against Mumia
Finally, the defense team argues that the State's refusal to provide files on federal and local police surveillance of Mumia hindered the defense in showing the political bias of the police and the political nature of the case. Mumia had been watched by law enforcement since he was 15--not for any presumed criminal tendencies or activities (in all his years, he had no criminal record before the run-in with Faulkner), but for his political beliefs and activism. Such documents could convincingly demonstrate police bias against Mumia--but these too were withheld from the jury and some have still not seen the light of day.
In a related point, Mumia attempted to call Alphonse Giordano to the PCRA hearings. Giordano, the police inspector in charge of the crime scene, had resigned the next business day after the 1982 trial to plead guilty to police corruption charges. Giordano was familiar with Jamal through police harassment of the Black Panther Party in the early '70s. Sabo quashed the subpoena.
So let's review some of the evidence withheld from the defense, and the jury, by the prosecution and the judge in the original trial:
the fact that star prosecution witness Cynthia White was given great benefits by the police and prosecution for her testimony; the fact that the second most important prosecution witness, Robert Chobert, had also received benefits from the police and prosecution, and was vulnerable to police pressure; the testimony from Veronica Jones indicating both police coercion to change her story and offers of rewards if she would do so; the existence of a driver's license application found on Faulkner's body that was traced to a friend of Mumia's brother; < the fact that the stories of Mumia's confession came out of a meeting convened by the prosecutor himself; the testimony of police officer Gary Wakshul, who had guarded Mumia the whole first night at the hospital, and reported that he had "made no comments"; the fact that Mumia had been under political surveillance by the FBI and Philadelphia police for well over a decade at the time of the shooting.
In addition to the above, I examined in Part 3 the prosecution's startling failure to do certain routine ballistics tests. To this we must add the fact that the defense attorney never showed the jury the medical examiner's written report that stated of Faulkner's fatal wound: "shot w/ 44 cal." (Mumia's gun was .38 caliber.) In the 1995 hearings, the prosecution tried to wish away this damning document with the claim that it was just a work note on a scrap of paper and not the final determination by a qualified ballistics expert. Yet at the trial Judge Sabo had qualified the medical examiner as an expert in gunshot wounds, and in the 1995 hearing the medical examiner admitted that he measured the bullet parts with a millimeter ruler (which could easily distinguish a .44 caliber bullet from a .38 bullet).
What would it have done to the prosecution case if the defense had brought all these points of evidence before the jury? With its witnesses impeached and its confession story shot to pieces, with evidence indicating a third man on the scene who ran away, with its history of political persecution of Mumia clearly on display and grave doubts about the ballistics evidence, would an informed jury have found Mumia guilty of first degree murder beyond a reasonable doubt?
The basic point is that the jury heard only the prosecution's charges and was never permitted to hear the refutation of them. The question before Judge William H. Yohn is whether any such trial can be allowed to stand.
* Two other men, including Cynthia White's pimp, were also questioned on suspicion of being the shooter; Kenneth Freeman and Arnold Howard also went through lineups--yet another fact withheld from the defense in 1982.
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