Mumia Habeas Filing Exposes Injustice

Part 5:
How the Court Denied Mumia's
Right to an Effective Defense

By C. Clark Kissinger

Revolutionary Worker #1046, March 12, 2000

In the last four parts of this series, we've focused on the highly political nature of Mumia's trial and the prosecutorial misconduct involved in suppressing evidence, manipulating witnesses, and creating a phony confession story. These outrages violate the most elementary sense of justice. At the same time, they go together with an even more elementary violation of Mumia's rights--the outright denial of his right to either defend himself (legally known as appearing pro se, "for oneself") or to be represented and/or assisted by effective legal counsel. This denial of the right to a defense forms one of the most important cornerstones of his appeal.

Traditionally, U.S. law has guaranteed people accused of a crime the right to defend themselves. People on trial are supposed to be able to choose between defending themselves or being represented by a competent attorney. In reality, for the poor this usually means an inexperienced attorney with few resources going up against the machinery of a well-financed district attorney's office that is in cahoots with the police.

In death penalty cases, it's even worse. One expert compared most death penalty trials to "a match between Mike Tyson and Martin Short, and the referee is on Tyson's payroll." In recent years death penalty defendants have had court-appointed lawyers who were later disbarred, attorneys who had only recently been readmitted after an earlier disbarment, attorneys who turned up at trial drunk, and others who even fell asleep during the proceedings.

One thing that stands out in Mumia's case is that the attorney himself has fully admitted under oath that he was unprepared for trial and that he could not get along with Mumia. Nor did this suddenly come to light after the trial. Mumia's attorney for his first trial, Anthony Jackson, repeatedly pointed all this out to Judge Sabo at the time. Time and again Jackson asked to be relieved first of his duties as backup counsel when Mumia was to defend himself, and then, when Mumia was illegally deprived of this right, to be relieved as lead counsel. Only when Sabo threatened Jackson with jail for contempt did he finally cease protesting.

How Sabo Deprived Mumia of His Right to Represent Himself

But let's start at the beginning. Anthony Jackson was appointed to represent Mumia early on, and attended several hearings. As early as January 5, 1982, the original judge in the case castigated Jackson for not paying enough attention to the case. On April 29, "Jackson requested a second attorney to assist with the defense, as he recognized that he was in over his head." (Reasonableness Memorandum, p. 51) With trial drawing near, Jackson told the court:

"[T]here is a problem in organizing the materials that I have before me, as well as preparing the appropriate research. . to be developed, and I have some reservations as to whether or not I can properly be prepared to go to trial within the next three weeks, or three to four weeks.... I have reams and reams of material to go through. . . And that's my problem. Physically, your Honor, I can only do so much. As your Honor well knows, I do have other trials... I am in the process of reducing my trial load, your Honor, to allow me to prepare effectively for this matter. But there are some matters that are still outstanding." [Reasonableness, p. 51-52]The court denied this request. Jackson fell further behind.

On May 13, 1982, Jackson lost a motion for more money for experts. Mumia, distressed by Jackson's obvious lackadaisical preparation, asked to represent himself. The judge granted this request but then appointed Jackson as Mumia's backup counsel--despite protests by both Jamal and Jackson! Jackson said he didn't know anything about being a backup counsel, and asked to be either relieved or assisted: "I am suggesting that without due process your Honor is requiring me to perform a function I have never performed in a matter where a man's life is at risk," he pleaded. But Sabo denied his request and, even worse, told him that it "isn't a very difficult job.... It doesn't require too much to represent someone as back-up counsel."

Relieved of being lead counsel and taking Sabo's words to heart, Jackson (in his own words) "abandoned all efforts at trial preparation." The case opened with jury selection, which went on for a day and a half; the Philadelphia Inquirer reported that Mumia was "intent and business-like" and "subdued" as he questioned the jurors. But Sabo soon took away Mumia's pro se right during jury selection, claiming that he was too slow and was scaring the jurors.1 Still, Sabo promised Mumia that he could resume defending himself as soon as the trial began.

When the trial moved to opening arguments, Mumia again requested that Jackson be removed and that John Africa be appointed his backup counsel. Today those who clamor for Mumia's execution claim that this shows that Jamal intended to turn the case into a "spectacle" (though how anything could be more of a spectacle than Sabo's Alice-in-Wonderland trial in a lynch-mob atmosphere is a real stumper). In fact, Mumia had serious reasons for making this request. John Africa had successfully acted as his own lawyer--defeating a federal charge of illegal ownership of weapons shortly before Mumia's trial--and was extremely unlikely to kowtow to the judge. But Jackson had shown himself to be more concerned with his standing in court than Mumia's life, going so far during the argument over backup counsel as to say that he was more concerned with his own rights than Mumia's.

When Sabo continually denied this, Mumia then requested that John Africa be allowed to sit at the defense table to advise him. Not only was this request absolutely permissible under Pennsylvania law, Mumia even provided Sabo with examples of other judges who had allowed non-lawyers to sit at the table with defendants. But Sabo repeatedly denied this utterly legal request; further, he threatened Mumia that he would deny him his pro se rights outright unless he stopped requesting John Africa as his adviser.

Mumia now faced a situation in which Judge Sabo had forced an unwilling backup lawyer upon him, had denied him the advice of a man he greatly respected, and had put his very right to defend himself into question. Mumia spoke up:

"Judge, your warnings to me are absolutely meaningless. I'm here fighting for my life. Do you understand that? I'm not fighting to please the Court, or to please the DA, I'm fighting for my life. I need counsel of choice, someone I have faith in, someone I have respect for; not someone paid by the same pocket that pays the DA, not a court-appointed lawyer, not a member of the ABA, not an officer of the court but someone I can trust and I have faith in. Your warnings are absolutely moot, they're meaningless to me."

Later the same day, Sabo denied Mumia his right to defend himself altogether, citing Mumia's "disruption." From a standpoint of simple justice, this defies belief--Sabo provoked Mumia by denying a basic right, and when Mumia responded in a firm but amazingly respectful way, Sabo took away his rights further! This was a classic Catch-22--you can't get your rights unless you insist on them, but if you insist on your rights that becomes grounds for taking them away.

But let's look at this claim of disruption from a legal standpoint.2 The Memorandum of Law cites a case where a defendant seeking permission to proceed pro se was denied that right on the basis of disruption, as was Mumia. However, an appeal court reversed the verdict, maintaining that it would be wrong to justify denying a defendant's pro se right because of his protests over the denial of that right! With Mumia, the circumstances were even more compelling, in that he faced a death sentence.

Sabo Saddles Mumia with Ineffectual Counsel

With Mumia no longer representing himself, Sabo forced Anthony Jackson to become lead counsel on the opening day of trial--over Jackson's repeated objections. Sabo actually threatened Jackson with imprisonment for contempt unless he shut up and continued.

Sabo's action had consequences. The Memorandum of Law states that "the ominous pretrial signs of trouble erupted into outrageous oversights and blunders during the course of the trial. Defense experts and investigators were not retained, and prosecution experts and fact-witnesses were not adequately challenged. Materially favorable defense witnesses were never summoned to testify. Nor did defense counsel protect Jamal against prosecutorial overreaching in such matters as the selection of a race-sanitized jury, improper argumentation before the jury, and the introduction of fabricated, as well as prejudicially irrelevant, evidence. Indeed, defense counsel admitted defeat at the outset of the trial, openly lamenting to the trial court that he could see no defense to the case." (Memorandum of Law, p. 43)

The defense team points out that Jackson never developed a trial strategy; did not interview the witnesses; did not prepare examinations or opening remarks; did not target evidentiary issues to research; did not subpoena witnesses; did not adequately consult with his client; did not familiarize himself with the case file; did not consider avenues of attacking the prosecution's case; and did not assemble evidence that pointed to Mumia's innocence.

The witnesses who saw someone flee the scene,...the evidence indicating the fabrication of "Mumia's confession," ...the dubious nature of the prosecution's "scientific evidence," ...the physical evidence to show that key prosecution witness Cynthia White's description of what happened that night was physically impossible, the medical examiners report describing the fatal bullet as .44 caliber--none of this got before the jury. The two memoranda not only detail the specific instances where Jackson failed in his duties, but also the relevant legal precedents where convictions were overturned due to similar instances of incompetence by counsel.

Actually, the rift between Mumia and Jackson is itself a grounds to overturn the verdict. The defense team has pointed out that "where an unbridgeable rift between counsel and client causes the communication between them to break down, counsel's ability to perform the constitutional function contemplated by the Sixth Amendment is fatally compromised, for the adversarial process demands the accused have `counsel acting the role of an advocate'...Consequently courts have held that it offends the fundamental precepts of the Sixth Amendment to foist upon a defendant a lawyer with whom he cannot communicate or whom he does not trust." (Memorandum of Law, p. 45) And here, too, the team cites precedents where such conflicts caused verdicts to be overturned.

The Memorandum of Law also notes that appellate decisions have held that judges must inquire into the causes of a rift between lawyer and defendant. Instead Sabo did all he could to worsen it, even taunting Jackson (and Mumia) over a technical lapse that Sabo seized on in order to deny a subpoena for officer Gary Wakshul, saying "you goofed."3

To make matters worse, the trial court also refused to provide necessary funds for Mumia to engage a pathologist (who could have proven that the prosecution's theory was physically impossible), or a ballistics expert (who could have shown that neither Mumia nor his gun had actually been connected to the shooting). The defense investigator (who could have located favorable witnesses and exposed the prosecution's manipulation of witnesses) quit before the trial because he had not been paid. Jackson did request funds for these and pointed out to the Court that no expert would agree to take on a case for a $150 advance and a promise of more to come later; but Jackson's request for more money in advance was turned down, and he never engaged a single expert.

A Railroad Ride
to a Death Sentence

Jackson's representation got worse as the trial went on. Death penalty cases in Pennsylvania have two phases. The guilt phase, in which juries decide whether the defendant is guilty; and then a separate penalty phase, in which they decide whether to execute the defendant. Pennsylvania law compels the jury to consider mitigating circumstances (factors that argue against imposing the death penalty) and aggravating circumstances (factors that argue for imposing a death sentence).

But Jackson presented no witnesses to testify to mitigating circumstances! In fact, he didn't even ask for a continuance to prepare for the penalty phase of the trial. In discussing this, the Memorandum of Law points out that "The chief prosecutor in the PCRA proceeding in 1995, upon hearing the testimony of the mitigation witnesses [who could have been called in 1982, if Mumia had competent counsel], announced that the killing of P.O. Faulkner was not in keeping with Jamal's character. Such was the power and impact of these mitigation witnesses. Yet, the sentencing jury [in 1982] heard no mitigation witnesses." Instead, Prosecutor McGill was allowed to spin his politically inspired fantasies of a Black radical out to kill cops without challenge.

Again, there are many precedents insisting on the necessity of "thorough preparation," as one Pennsylvania decision of 1994 put it, for the penalty phase of the trial. But attorney Jackson himself testified in 1995 that he "hadn't done anything to prepare a penalty or mitigation-phase hearing." Jackson never talked with Mumia about the penalty phase (other than a brief meeting with him the morning it began) and never considered calling any witnesses at the penalty phase. The memorandum notes that "the federal courts have consistently held that a trial counsel's failure to put on available mitigating evidence" constitutes grounds for overturning the sentence. (Memorandum of Law, p. 74)

Sabo must share the blame for what the defense team has called an "unprecedented and astounding lapse." (Memorandum of Law, p. 70) The guilt-phase of the trial ended on Friday, July 2. "Rather than provide counsel the respite of a weekend to collect his thoughts and prepare a strategy for the penalty phase, the court forced defense counsel to proceed the next morning to attempt to save Jamal's life, and defense counsel did not even request a continuance." (Memorandum of Law, p. 72) This is a railroad in the literal meaning of the word--rushing the proceedings through in such a way that the defense cannot prepare.

Finally, and perhaps most egregious among the numerous errors in this phase, Jackson did not object when the prosecution turned the sentencing phase into a blatantly political attack. Jackson sat mute as Prosecutor McGill said that this particular trial "was a referendum on fighting crime generally [and] should be seen as part of a larger effort to thwart the siege of criminality in our urban neighborhoods, and that, therefore, the community expected and demanded conviction." (Memorandum of Reasonableness, p.58) This, in spite of the fact that Mumia had no criminal record. Nor did Jackson object when McGill introduced Mumia's political views into the proceedings, and cited them as an "aggravating factor" in giving him the death sentence!

Mumia Not Allowed To Be Present at His Own Trial

No doubt Sabo would have preferred that Mumia sit mute while the court denied him his right to defend himself and his right to effective counsel. But that was not on Mumia's agenda; he protested. And when he did, Sabo punished him further, removing him from his own trial altogether.

Mumia was taken from the courtroom over and over again, missing nearly half his trial. Moreover, Sabo provided absolutely no way for Mumia to follow the trial for his life; for instance, the proceedings were not piped in to Mumia. So witnesses were heard and exhibits produced with Mumia having no way of even knowing the evidence against him, and this in a trial for his life! Yet in 1981 a New York verdict was overturned on appeal precisely because of "the state's failure to provide the technological equipment necessary for the defendant to stay apprised of the proceedings and communicate with his lawyer."

Mumia was also excluded from proceedings held in the judge's chambers (called in camera proceedings). Again, the defense team has marshaled precedent to show that the defendant's right to be present at all phases of his proceedings is so important that its violation has led to overturned verdicts in the past.

Proceeding solely from the framework of "what is legal," the violations of Mumia's rights to defend himself and/or have adequate legal assistance and representation are more than enough to make a new trial mandatory. But Mumia's case--and indeed the death penalty cases today more generally--have much more to do with repressive politics than legal precedent. It is up to us to lay bare the contradiction to millions--between the supposed guarantees of democracy and the reality of political dictatorship that has been on display every step of the way in the case of Mumia Abu-Jamal.

1 Amnesty International, in its investigation of the case, found "no justifiable reason for the revoking of Mumia Abu-Jamal's right to question potential jurors."

2 We have to make this distinction between justice and legality; to paraphrase a remark by Marlon Brando's character in the movie Dry White Season, in most places law and justice are distant cousins--in Philadelphia they're not even on speaking terms.

3 Wakshul was the officer who guarded Mumia the night of his arrest and wrote in his report that the "Negro male made no comments"--such testimony would have been instrumental in exposing the fabrication of the confession hoax by the prosecution.

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