Mumia Habeas Filing Exposes Injustice
The Hanging Judge of Philadelphia
By C. Clark Kissinger
Revolutionary Worker #1049, April 9, 2000
Judges, we are told, are impartial--they do not side with the prosecution. They act according to law, not prejudice. They do not suppress evidence. They are supposed to be motivated by a desire for justice, not a thirst for vengeance. And they are charged with protecting the rights of the accused. As for politics? That, we are assured, has no place in the courtroom.
The reality falls far short of this ideal. To begin with, judges are the arbiters of a society divided into classes, overlaid and intertwined with elaborate codes of white supremacy and patriarchy. The very laws that they interpret and apply are saturated with the biases inherent in such a society. So even the most ethical and fair-minded of judges is extremely limited. In practice, most judges feel little compunction about letting their class, racial and sexual biases hang out. Among these, Judge Albert Sabo stands out, and it is Judge Sabo who presided over both Mumia's trial and his appeal for a new trial in Pennsylvania.
In a very significant motion now before the Federal District Court, Mumia's attorneys have asked that Judge Sabo's findings of fact in Mumia's state court appeal for a new trial be set aside. The defense team states that Sabo's findings were unreasonable (1) and that his fact-finding "deserves no deference because Judge Sabo harbored deep-rooted bias and hostility toward Jamal in particular, and toward criminal defendants generally." [p. 1, Reasonableness Memorandum] In this final part of this series on the habeas corpus brief, I will examine Sabo's handling of that appeal for a new trial and the grounds for throwing out his findings of fact.
How Sabo Covered Up His Denial of Mumia's Right to Defense
Part 5 (RW No. 1046) discussed how Sabo had shredded Mumia's elementary right to an adequate trial defense. Sabo denied Mumia his right to defend himself, his right to have an adviser of his choosing sit at the defense table, his right to be present at his own trial, and his right to dismiss his court-appointed lawyer. During the 1995 Post Conviction Relief Act (PCRA) hearings for a new trial, Mumia's new lawyers brought powerful evidence to bear on these claims: they put Mumia's trial lawyer, Anthony Jackson, on the stand.
Jackson quite honestly told the story outlined in Part 5 of this series--his lack of preparation, his unwillingness to replace Mumia as counsel until Sabo threatened him with jail, and the lack of trust and coordination between himself and Mumia. But Sabo deemed all of Jackson's testimony "not credible" and/or irrelevant! Sabo claimed that Mumia "controlled" Jackson the whole way--that the hostility between the two and the obvious anguish of Mumia were actually elements of Mumia's cleverly designed trial strategy. Sabo ruled, with absolutely no justification in the PCRA record, that Jackson was testifying falsely in order to salvage "a victory" in the case--as if telling of one's own incompetence and failure was a "good career move." So Sabo made a "finding of fact" that Mumia was not denied his right to adequate legal representation--a finding of fact that according to the 1996 death penalty law the federal courts must adhere to, unless shown to be unreasonable.
Sabo also cited the record to show three instances when Mumia supposedly told Jackson what to do. Yet Sabo's own citations expose him. The first two incidents occurred when Mumia was still acting as his own counsel--so, of course, Mumia told Jackson, then his backup counsel, what to do. The third incident was the only time at the entire trial when Jackson, as lead lawyer, did act in accord with Mumia's instructions. The defense motion notes that "Jackson testified (in the PCRA hearings) that all strategic and tactical decisions made during trial were his own, and as proof of this fact, Jackson pointed out that it was his practice to state explicitly on the record those instances when he was doing something because Jamal directed him to do so. The incident recounted [by Sabo] was the only time that Jackson staked out a legal position after prefacing his remarks in this fashion. Thus, this single instance where Jackson expressly indicated that his advocacy was made at the direction of Jamal actually confirms that his conduct during the trial was not dictated by Jamal." (p. 48)
In fact, Jackson testified at the PCRA hearing that Mumia did not control the defense case, that Mumia did not dictate strategy to him, that Jackson himself decided what he would argue to the jury and he did not ask Mumia's opinion, and that Jackson also made the decisions as to what witnesses to call or not to call, though he sometimes consulted with Mumia about this. Despite this, Sabo brushed aside the entire record concerning Jackson's trial performance.
Sabo also ruled as fact that Jackson kept Mumia "fully informed" even during the many stretches when Mumia sat in a jail cell while his trial went on without him -- stretches which amounted to almost half the trial, thanks to Sabo's constant ejections of Mumia. The motion points out that this is "pure fiction." "Jackson made it clear to Judge Sabo that Jamal and he were constantly fighting during the times when the court was not in session. He described how Jamal's trial strategy differed markedly from his own. He also told the court that Jamal refused to participate on the terms set by the court; that is, Jamal refused to consult with, and assist, attorney Jackson." (p. 65)
How Sabo Justifies Lack of Funds and Prosecutorial Misconduct
Part of an adequate defense is the ability to hire experts. The record reflects that the defense received $1,350 for experts, most of which didn't actually come through until two years after the trial. Jackson testified in the PCRA hearing that without adequate funding he felt "like a boxer in a ring with both arms tied behind your back, doing your best to bite your opponent." Sabo didn't even try to counter this with a reference to the record, but simply claimed that Jackson was lying in order to "create an appellate issue for his client." (p. 68)
In fact, Jackson had requested funds several times in pre-trial hearings. Judge Ribner, who preceded Sabo on the case, used a rather cynical ploy to stymie the defense: he refused to grant more than $150 per expert up front, telling Jackson that he would have to file expense sheets for the rest and get reimbursed later. In the real world, this meant that no experts could be hired, particularly given Philadelphia's reputation for either not paying up or paying only a portion (this reputation was testified to in the PCRA hearing).
Who did the defense want to retain and what would it have meant? A ballistics expert could have explained that the prosecution's claim that the fatal bullet "was consistent with" Mumia's gun was meaningless, as it was also consistent with several million other guns. He or she could have discussed the questionable recording of the ballistics evidence--first recorded as .44 caliber then changed to .38 caliber. He or she could have told the jury of the routine tests to determine whether Mumia had fired the gun that were either not performed or not reported. But the ballistics expert consulted by the defense refused to testify unless he was paid.
The defense could also have put a pathologist on the stand who could have testified to the downward trajectory of the bullet that Faulkner shot into Mumia, and how the prosecution scenario in which a falling Faulkner shoots an upright Mumia could not account for such a trajectory. Such testimony from experts could have made a huge difference to the jury.
But Sabo in his PCRA ruling holds that assistance from a ballistician or a pathologist would not have helped the defense. To justify his dismissal of the pathologist's testimony, Sabo claims that the bizarre and physically impossible prosecution scenario was actually invented by the defense! Here Sabo seems to be doing an impression of the old Redd Foxx routine about the husband caught cheating on his wife: "Who you gonna believe, woman, me or your lying eyes?"
The defense team also points out that the prosecution attempted to prevent defense access to witnesses, in part by editing their addresses out of the police reports turned over to the defense. But Sabo found as fact in his decision that the defense investigator Greer actually had no difficulty finding witnesses, since Greer himself testified that he had interviewed two witnesses ahead of time. Sabo conveniently leaves out the more important fact that Greer testified that he only found these witnesses because their addresses had been accidently left on the police reports.
One last point: the motion for habeas relief points out that in Mumia's direct appeal following his trial there was also a question of ineffective assistance, as the lawyer had not even read the entire transcript of the case. Sabo dismisses this as unfounded, omitting the fact that he quashed subpoenas for the witnesses who could testify to this in the PCRA hearings. In essence, Sabo ruled that there was no evidence, after he had himself barred the evidence from being heard.
Sabo's Incredible Credibility Rulings
The 1995 PCRA hearings included many witnesses who offered damning testimony. Not a single point of any defense witness was deemed factual by Judge Sabo. How did he manage this? Several ways: ignoring testimony; dismissing it as irrelevant; misinterpreting it so as to favor the prosecution; and--his favorite--deeming the witness "not credible." Let's look at some examples:
Ignoring testimony: Prosecution witness Robert Chobert revealed at the PCRA hearing that he had been driving with a suspended license at the time of the killing and that Prosecutor McGill, rather than prosecuting him for the violation, had promised to "look into" how Chobert could get his license reinstated. "Chobert admitted that he believed McGill was intending to assist him." (p. 13) Sabo simply ignores this in his factfinding, just as he ignores McGill's later misleading of the jury when he rhetorically asked "what motivation would Robert Chobert have to make up a story?" Sabo also ignores Chobert's admission that he changed his story between his first interview and the trial.
Ruling testimony irrelevant: Sabo ruled Debbie Kordansky's testimony that she saw a man fleeing as irrelevant, surmising that it might have occurred after the police arrived. "What Judge Sabo conveniently overlooks," notes the defense, "is the obvious and uncontested fact that she reported her observations to the police of someone fleeing the scene because she thought it would be helpful to them in their effort to apprehend the shooter."
Sabo also dismisses the fact, only uncovered at the PCRA hearings, that Faulkner had the driver's license of a third man on his person at the time he was killed. This Sabo deems to be irrelevant, even though the prosecutors had insisted at the original trial that the "fact" that the only two people on the scene had been Mumia and his brother was an important part of their case, and even though the prosecution had withheld this evidence from the defense.
Suppressing testimony: Sabo outright refused a host of defense motions for subpoenas of witnesses at the PCRA hearings. He refused to accept FBI files into evidence, claiming they were not "authenticated." He refused a defense motion to call Alphonse Giordano (the police inspector in charge at the crime scene) to show that Giordano was familiar with Mumia from police harassment of the Philadelphia Black Panther Party in the early '70s. He quashed subpoenas for officer Gary Bell, who alleged in the 1982 trial that Mumia had confessed to him, and for numerous other officers. He quashed subpoenas to jurors who could have testified as to whether there was secret, and illegal, deliberation going on during the original trial. And he quashed a subpoena to a state court administrator to testify about racial disparities in Pennsylvania's death penalty.
Misinterpreting testimony: Sabo finds "as fact" that had police officer Wakshul testified at the original trial, it would have helped the prosecution and hence the fact that he didn't testify was irrelevant. Wakshul is the cop who guarded Mumia on the night of the shootings, and who noted in his log that "the Negro male made no comments." To make this ruling Sabo accepts Wakshul's initial claim (in his PCRA testimony) that "he did not feel the confession was important at the time he signed the statement and that he did not appreciate its importance until over two months had elapsed." When further questioning drew out Wakshul's intensive training and his understanding of the importance of such confessions, Wakshul switched his story to say that he had been too emotionally distraught at the time to report it. Then Sabo simply ignores Wakshul's statement to investigators a week after the shootings, when he was presumably no longer "distraught," in which he reiterated that Mumia had said nothing of significance on the night in question.
Deeming witnesses not credible: Who were some of the witnesses deemed "not credible" by Sabo? We've already discussed Anthony Jackson, a man who had nothing to gain by testifying to his own lack of preparation and incompetence. But there are more. Investigator Robert Greer testified that he had observed Cynthia White working as a prostitute before the 1982 trial under the watch of two plainclothes police, and that this prevented him from interviewing her before trial. Such protection by plainclothes police could indicate that White had in fact made a deal with the cops for protection to work her corner in exchange for her testimony. Sabo ruled Greer "not credible" on this point. Yet Greer's testimony dovetails with Veronica Jones' testimony at the original trial that she was being pressured by police to make a deal--testimony which Sabo himself had ruled out of order.
Veronica Jones is an even more telling example. When originally interviewed by police in 1981 she had testified that two men ran away from the scene. After police threats and offers described earlier in this series, she changed her testimony to conform to the prosecution in the 1982 trial. Fourteen years later, with absolutely nothing to gain but a clear conscience, Veronica Jones recanted her trial testimony and returned to her original truthful testimony given to the police. She did this despite Sabo's threats to have her prosecuted for perjury and her actual arrest on the stand for an old bad check charge. Nonetheless, Sabo ruled Veronica Jones "not worthy of belief."
The deeming of witnesses as "not credible" is a particularly nasty tactic. Sabo knows that federal judges are very reluctant to reverse state judges on witness credibility rulings. So by ruling so many witnesses as not credible, he hopes to make his own trial record "bullet proof" from federal court review.
The Racist Hostility of a Hanging Judge
The defense motion makes clear that Sabo stands out, even among Philadelphia judges, for his record of vengefulness and racial bias. Writing in 1992, a legal critic noted that Sabo had imposed the death penalty on 26 of the 137 people on death row in Pennsylvania at the time, 24 of whom were Black men. The recent Amnesty International pamphlet updated these statistics.
"Over a period of 14 years, [Sabo] presided over trials in which 31 defendants were sentenced to death, more than any other U.S. judge as far as Amnesty International is aware. Of the 31 condemned defendants, 29 came from ethnic minorities." Another legal scholar said that Sabo's record would be unacceptable even in the worst Southern death-belt states.2
Eleven of Sabo's homicide cases have been partially or totally reversed on appeal. "No other judge sitting in Pennsylvania has had an equivalent percentage of capital cases reversed," states the Reasonableness Memorandum; "and, on information and belief, no other judge in the United States competes with Judge Sabo for this dubious distinction." [p. 85] In fact, even Sabo himself admitted--on the record--that "I am, sure, real biased" against the defense. [p. 89] Sabo's former membership in the Fraternal Order of Police--the organization currently running a campaign for Mumia's execution--has been noted by many. In a stunning instance of both his pro-cop bias and his extreme hostility to Mumia in particular, "the court not only permitted but encouraged off-duty FOP members to carry loaded firearms in court, stating the FOP `are in here for my protection.... I consider the police officers for my protection in this Courtroom."' [p. 98]
At the time of the PCRA hearings, Sabo's extreme hostility towards Mumia even became a subject of press commentary. In the October 1996 hearing, the Philadelphia Daily News wrote of Sabo's "heavy-handed tactics [which] 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." They continued, "He's openly hostile to the defense and lavishly liberal with the prosecution." [p. 22] Their front-page headline during the 1995 hearings put it more bluntly: "Sabo Must Go."
The Philadelphia Inquirer stated in 1995 that the "behavior of the judge 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." Even the New York Times cited courtroom instances that showed that Judge Sabo "has been openly contemptuous of the defense." Stuart Taylor, writing in the conservative American Lawyer, said Sabo "flaunted his bias, oozing partiality toward the prosecution and crudely seeking to bully Weinglass, whose courtroom conduct was as correct as Sabo's was crass." Taylor faulted Sabo for barring Mumia from presenting witnesses and for "sharply restrict[ing] Jamal's lawyers in their questioning of witnesses, and block[ing] them from making offers of proof on the record to show the import of precluded testimony." [pp. 22-23]
Sabo in short has exhibited extreme hostility to Mumia, hostility which is part and parcel of a record of racism and vengeance in the courts that stands out even in the United States. It need only be said that both legal precedent (amply cited in the defense memorandum) and simple justice demand that Sabo should not have presided over an appeal of the trial that he presided over in the first place! Yet preside he did--and he found his own conduct of the 1982 trial to be flawless.
Now Sabo's rulings are before a federal court, and the appeal of these rulings is about to be heard. I have tried in this series to outline the key points of Mumia's appeal, and to show the power of the defense arguments. I think that these arguments provide both a powerful legal basis for the District Court to find for Mumia even on the basis of their own rules and procedures. They also provide valuable ammunition for winning over many more people to oppose Mumia's execution and to demand that Sabo's verdict be overturned.
But Mumia's case has been an explosive mixture of politics and law from the very beginning, and so far reactionary politics has won out over justice and even the establishment's own legal rules at every turn. Time after time, the state violates its own rules--limited and biased as they are to begin with--in order to press ahead with this political execution.
This must not continue. We can only win justice for Mumia by fighting in both the legal and political arenas--that is, in both the courts and the streets. By the time of the District Court hearings, the message must powerfully resound, echoing through the land in a range of forms from a host of voices: Mumia Must Not Die! Justice Must Be Done!
1. The 1996 death penalty law, designed to speed up executions, instructs federal courts to accept findings of fact by state courts as correct unless they can be shown to be "unreasonable."
2. Bad as he is, Sabo forms part of a larger pattern of Philadelphia justice--of the 124 prisoners from Philadelphia on death row in October 1998, only 15 were white; ie. 90% were people of color.
This article is posted in English and Spanish on Revolutionary Worker Online
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