Anatomy of a Racist Frame-Up
The Case of Mumia Abu-Jamal
3. The Prosecutions Case
There were three elements to the prosecutions case: eyewitnesses, ballistics and a supposed confession. The central pillar in the frame-up was the eyewitness testimony. Yet even a cursory examination of these witnesses demonstrates their unreliability. Amnesty International made the following general observation:
Based on a comparison of their statements given to the police immediately after the shooting, their testimony during pretrial hearings and their testimony at the trial, the key witnesses did substantively alter their descriptions of what they saw, in ways that supported the prosecutions version of events.(41)
The prosecutors also made it difficult for Jackson to contact witnesses. In the 18 March 1982 pre-trial hearing before Judge Ribner, Jackson complained that the District Attorneys office was claiming that their witnesses did not wish to speak to the defense:
The most important prosecution eyewitnesses were the two who claimed to have seen Mumia gun down Faulkner: Robert Chobert and Cynthia White.(43) Chobert, a 22 year-old cab driver who was in the immediate vicinity of the killing, approached police Inspector Giordano five minutes after the shooting, and reported that the shooter apparently ran away.(44) At the trial Chobert brushed off this initial account as a mistake, and claimed to have seen Mumia shoot Faulkner several times before walking ten feet and falling. Choberts willingness to recast his recollections was no doubt related to the fact that, at the time of the shooting, he was on probation for arson and was driving his cab illegally since his chauffeurs license had been suspended because of unpaid parking tickets.
Chobert was certainly aware that any conviction would have violated the terms of his probation and could have sent him to prison for up to 30 years. He was thus in an extremely vulnerable position and had ample reason to bend his testimony to fit the prosecutions requirements. At the 1982 trial Jackson sought to introduce the fact that Chobert had been convicted for arson, but Sabo correctly ruled that irrelevant. What Jackson should have done was to point out that Choberts violation of the terms of his probation made him extremely susceptible to police pressure to lie. This was relevant, but Jackson never raised it. The prosecution subsequently made much of Choberts supposed credibility:
During this final summation to the jury, the prosecutor emphasized Choberts testimony, telling the jury they could trust Chobert because he knows what he saw. The prosecutor suggested that Choberts testimony was given without anyone having influenced him, telling the jury: do you think that anybody could get him to say anything that wasnt the truth? I would not criticize that man one bit. What motivation would Robert Chobert have to make up a story. However, subsequent revelations suggest that Chobert had substantial reasons to ingratiate himself with the authorities by corroborating their version of events.(45)
The prosecutions star witness was Cynthia White, a 24 year-old prostitute with at least 38 prior arrests (a few of which were still pending at the time of the trial), who claimed to have seen Mumia gun Faulkner down. Jackson had asked Judge Ribner to put Mumia in a lineup to see if White could pick him out. The prosecution objected, presumably because they feared that White would discredit herself if she failed to identify Mumia. Ribner obliged by refusing to put Mumia in a lineup on the grounds that White would not be used as an identification witness. This gave rise to the following exchange a few months later:
Whites identification of Mumia as the shooter was central to the prosecutions case. In a speech to Mumias supporters in San Francisco in May 2002, Marlene Kamish, who had joined Mumias legal team a year earlier, explained the significance of his request to be put in a lineup:
Another indication of Mumias innocence is the fact that the tale told by the prosecutions key witness, Cynthia White, kept shifting, each time in a manner favorable to the prosecution:
Prior to the trial, White had given four written statements and one tape-recorded statement to the police. In one interview she estimated the height of the person who shot Faulkner to be shorter than five feet eight inches. Abu-Jamal is six feet one inch tall. In her first court appearance at a pretrial hearing, she testified that Abu-Jamal held the gun in his left hand. Three days later she testified that she was unsure which hand he held the gun in. At trial she denied knowing which hand the gun was in. During her trial testimony, she claimed that the diagram she originally drew of the incident was incorrect and that her placement of the actors prior to Abu-Jamals appearance was inaccurate.(47)
During the June 1982 trial, White testified that the shooter had been a foot and a half from Faulkner. When Jackson pointed out that in her 8 January 1982 statement she had said six feet, White responded:
Jackson failed to point out another, critically important contradiction in Cynthia Whites testimonyher claim that only three people had been present at the killing: Faulkner, Mumia and his brother.(49) At Billy Cooks trial, only a few months earlier, with the same prosecutor, White had testified that there had been a fourth persona passenger in Billy Cooks car. This discrepancy is highly significant because it proves that Cynthia White, the District Attorneys star witness, was lying under oath (with the probable connivance of both prosecutor and judge). The prosecutions whole case hinged on the claim that there were only three people on the scene (Mumia, his brother and Faulkner) and that Mumia was the only one who could have shot Faulkner.(50) Jackson should have been aware of this, as he quoted from the transcript of Billy Cooks trial during his cross-examination of White.(51)
White was clearly having trouble keeping her story straight, although she had good reason to do so, as Amnesty International observed:
There is evidence to show that Cynthia White received preferential treatment from the prosecution and police. At the time of the trial, she was serving an 18-month prison sentence for prostitution in Massachusetts. She had 38 previous arrests for prostitution in Philadelphia; three of those charges were still pending at the time of trial. She was arrested twice within days of the shooting incident (12 and 17 December ).(52)
An article in the Philadelphia Inquirer indicated that as soon as she agreed to testify against Mumia, White gained immunity from prosecution for her professional activities:
Miss White was arrested 38 times between May 1980 and Dec. 17, 1981. She has not been arrested since she gave police a statement saying that she saw Cook hit Faulkner. She testified during Cooks trial that she has continued to work as a prostitute.(53)
During the 1995 PCRA hearings, Robert Greer, a private investigator who was retained by Jackson to work on the case, testified that in the months before Mumias 1982 trial he had made several attempts to contact White on the corner she was working, but that he was unable to do so because she was always attended by two plainclothes police officers.(54) Amnesty International notes that Philly police officers continued to protect White years after Mumias conviction:
In 1987, a detective involved in the prosecution of Abu-Jamal testified in support of bail for White at a court hearing concerning charges of robbery, aggravated assault and possession of illegal weapons. Despite the judge pointing out that White had failed to appear in court on 17 different occasions and that she had page after page of arrests and convictions, the prosecution consented to the request that she be allowed to sign her own bail and the judge released her. According to information received by Amnesty International, White failed to appear in court on the charges and the authorities have since been unable to locate her.(55)
Cynthia White was not the only prostitute approached about testifying against Mumia:
In January 1997, another former prostitute who worked in the area of the crime scene in 1981, came forward. In a sworn affidavit, Pamela Jenkins stated that she knew Cynthia White, who had told her she was afraid of the police and that the police were trying to get her to say something about the shooting of Faulkner and had threatened her life. Jenkins was the lover and informant of Philadelphia police officer Tom Ryan. In her statement, Jenkins claimed that Ryan wanted me to perjure myself and say that I had seen Jamal shoot the police officer. In 1996, Tom Ryan and five other officers from the same district went to prison after being convicted of charges of planting evidence, stealing money from suspects and making false reports. Their convictions resulted in the release of numerous prisoners implicated by the officers. Jenkins was a principal prosecution witness at the trials of the officers.(56)
Jenkins had acted as a confidential informant for the FBI in one of its investigations of the Philadelphia police, but now the DAs office was anxious to discredit her. Arlene Fisk, the prosecutor, asked when she had last seen White. When Jenkins replied a few months earlier, Fisk produced what she claimed was a New Jersey death certificate for White dated 2 September 1992. In fact, it was established in a subsequent state court hearing before Judge Sabo that there is no evidence that Cynthia White is dead:
The putative death certificate which the Commonwealth produced at the 1997 remand hearing to establish that Cynthia White died in 1992 turned out not to be, as the Commonwealth claimed, a self-authenticating official New Jersey record, but rather an ad hoc collection of several different sealed and unsealed documents stapled together to give the false impression of a single record (Tr. 6/27/97: 143). The Social Security number on the putative death certificate did not belong to Cynthia White, but to a woman named Migdalia Cruz, who was born in Puerto Rico on May 25, 1957. Thereafter, fingerprint evidence proved beyond doubt that the woman whose death certificate the Commonwealth had produced was not Cynthia White.(57)
During cross-examination, Camden New Jersey police officer Ronald Morgan admitted that the fingerprints of the deceased did not correspond to those on file for Cynthia White.(58)
Jenkins account of what Cynthia White told her is corroborated by the sworn statement of Yvette Williams who was in jail with White in December 1981, shortly after Faulkner was shot. Williams says that White told her she had been high on drugs at the time, and had not actually seen the shooting, but that she was being pressured to claim that she saw Mumia shoot Faulkner.
When Lucky [Cynthia Whites street name] told me she didnt even see who shot Officer Faulkner, I asked her why she was lying on that man (Mumia Abu-Jamal). She told me it was because for the police and vice threatened her life. Additionally, the police were giving her money for tricks .According to Lucky, the police told her they would consolidate all her cases and send her up (Muncy), a womens prison, for a long time if she didnt testify to what they told her to say.(59)
The second leg of the prosecutions case was its ballistics evidence. This amounted to little more than the assertion that Faulkner was killed by a bullet consistent with those from the .38 caliber revolver legally registered to Mumia. The prosecutions expert witnesses admitted that the bullet was consistent with multiples of millions of other handguns.(60) The police failed to match fingerprints on any of the weapons supposedly recovered at the scene to either Mumia or Faulkner.(61) Police investigators also failed to perform a routine test to see if Mumias gun, which they claimed to have found empty beside him, had been fired recently. Nor did they test Mumias hands for gunshot residue. Nor were Faulkners hands tested to see if he had recently discharged a firearm. This was all very unusual.
Jackson sought to investigate the suspicious failure to carry out these routine tests during his cross-examination of Dr. Charles Tumosa, the supervisor of Philadelphias Criminalist Unit. But Sabo objected, asking what difference does it make?:(62)
The issue came up again two days later when Jackson called Detective William Thomas, who had been in charge of the crime scene the night of the shooting and should have made sure that Faulkner, Cook and Jamal (the only ones on the scene according to the prosecution) were tested to see if they had recently discharged a firearm. Thomas claimed that the Mobile Crime Lab had run out of kits for doing the tests,(64) but Jackson pointed out that some of the tests could have been carried out the next day.(65) McGill objected to this line of questioning on the grounds that it was irrelevant, but Sabo allowed Jackson to establish that police on the scene failed to administer several standard tests that could have ruled out Mumia as the shooter. In a sidebar conversation with both attorneys, however, he drew the line at investigating the motivation for this failure:
It seems likely that the officers in charge of the scene did not test Mumia (or Faulkner) because they knew the result would be negative. It is also possible that tests were performed, but suppressed when they did not help incriminate Mumia.(67) In the prosecutions scenario, Mumia and Faulkner were both shot from extremely close range (roughly 12 inches),(68) yet the clothing of neither tested positive for traces of nitrates.(69)
Amnesty International commented:
In a case where the prosecutions theory of the crime rests on a specific sequence of events involving an exchange of gunfire, the gathering of ballistics evidence is crucialas is the ability of the defense to present its own expert testimony on the significance of that evidence. The failure of the police to test Abu-Jamals gun, hands and clothing for evidence of recent firing is deeply troubling. Without the ability to hear and assess that missing evidence, the jury was required to reach a verdict based largely on the contradictory and variable testimony of a limited list of eye witnesses.(70)
Another highly suspicious aspect of the ballistics evidence is that a sizable bullet fragment found in Faulkners head by the Medical Examiner was mysteriously lost between the time it was removed from the body and the time the evidence envelope in which it was placed arrived at the police ballistics lab.(71) The police lab reported that the fatal bullet was so mutilated that its markings were indeterminable and found that the bullet in evidence showed insufficient characteristic markings to permit a positive comparison to test-fired bullets.(72) Attorney Rachel Wolkenstein of the Partisan Defense Committee (PDCthe legal defense arm of the Spartacist League/U.S. [SL]), who worked on Mumias defense for over a decade, noted:
However, a photograph taken of this bullet discloses a largely intact lead bullet with pronounced filing impressions indicating that a comparative analysis with original exemplar bullets fired from it could have resulted in a determination as to whether the bullet was fired from Jamals Charter Arms revolver. Additionally the relative width of the lands to the grooves on the bullet reportedly taken from Faulkners head wound is the opposite of all but a few percent of the Charter Arms revolvers produced. Thus the prosecutions ballistics evidence (or lack thereof) itself raises a strong likelihood that the bullet in evidence from Faulkners head wound was not fired from Jamals Charter Arms revolver, and that police ballistics tests were inconclusive because properly and competently performed ballistics examination would exclude Jamals gun as the murder weapon.(73)
Then there is also the question of who shot Mumia. According to the prosecutions expert witness, the only bullet that could be positively identified was the one extracted from Mumia, which, he claimed, matched Faulkners gun. But the legal team that took Mumias appeal to the Pennsylvania Supreme Court in 2001 questioned whether it was in fact Faulkners gun, as it had a bent hammer spur and oversized hand grips which meant it could not be fired single-action.(74) Moreover, the inside of the barrel of the gun the prosecution claims belonged to Faulkner was dirty, indicating that it had not been recently cleaned. Yet Faulkner, a former soldier and an avid hunter, was known to be fastidious about keeping his weapons in top condition.
The prosecution claims that Faulkner, after being shot in the back, somehow managed to fire a shot while falling. Yet Mumia was hit by a bullet that entered just below his right nipple (at the level of his sixth or seventh spinal vertebra) and traveled downward in a straight line to lodge at his twelfth vertebra.(75) The downward trajectory of the bullet through Mumias body meant that it was impossible for Faulkner to have fired the shot either while falling or after he hit the ground, unless Mumia had been standing on his head.(76)
Initially, Sergeant Frederick Westerman of Homicide told the Medical Examiners investigator, Stefan Makuch, that Mumia had been shot by police reinforcements arriving on the scene after Faulkner was down.(77) Only later was the story changed to make Faulkner the one who supposedly shot Mumia. McGill sought to brush off Makuchs investigative log as inaccurate, but, unlike the official version, it is not contradicted by the physical evidence.(78)
The third and final leg of the prosecutions case was Mumias supposed confession, a transparent invention which has become something of an embarrassment to Mumias more sophisticated enemies. Originally Mumia was supposed to have confessed to Inspector Alfonzo Giordano at the scene of the crime before he was taken to the hospital. This story was presented at Mumias preliminary hearing in January 1982:
But while constructing the case against Mumia, the DAs office learned that Giordano would soon be indicted, along with a number of other officers, for extorting money from prostitutes, pimps and speakeasies. The federal government investigation of corruption in the Philadelphia police found that Giordano had been getting $3,000 a month in illegal kickbacks. He was therefore deemed unsuitable to testify at Mumias trial. Giordano resigned from the force the day after Mumia was found guilty, and was subsequently convicted of tax evasion.
This complicated things a bit as Mumias confession was an important element in the prosecutions case. But then, as if by magic, in February 1982 Faulkners partner, Garry Bell, suddenly remembered that Mumia had shouted, I shot the mother fucker, and I hope the mother fucker dies while lying on the floor in the hospital emergency department.(80) Bell claimed that he had forgotten to mention this confession in the report he wrote at the time because he had been upset, although he had included details of other things he had seen or heard that evening. Bells story was seconded by a hospital security guard, Priscilla Durham, who also claimed to have heard the confession. Durham claimed she had reported the confession to her supervisor at the time, who had written it down and had her sign it.(81) Yet this handwritten document could not be found at the time of the trial. Instead, the prosecution produced an unsigned, typewritten statement that Sabo admitted as evidence.(82) In Kenneth Pates 18 April 2003 declaration, he asserted that Durham, who was angry about being laid off, admitted to him in late 1983, or early 1984, that she had in fact not heard Mumia confess to anything.(83)
Anthony Jackson apparently failed to notice, until the end of the trial, that he had in his possession a 9 December 1981 report by Gary Wakshul, the police officer who had arrested Jamal, accompanied him in the wagon and stayed with him the entire time at the hospital. Wakshuls report stated, During this time the negro male made no comment.(84) This flatly contradicted the claims by Bell and Durham to have heard Mumias confession. On 1 July 1982, when Jackson tried to call Wakshul to testify, McGill informed Sabo that the officer was (conveniently enough) on vacation until July 8th.(85) Sabo rejected Jacksons request for a recess to try to locate Wakshul, and declared he would permit no further delays of the trial. He told Mumia, Your attorney and you goofed by not calling Wakshul earlier.(86)
(41) Ibid., p 17
(42) Pre-trial transcript, 18 March 1982, pp 73-74. Jacksons anticipation that Chobert and White would be key to the prosecution case proved accurate. However Albert Magilton, a witness called by the prosecution, whose uncle had been a homicide inspector, and who had a cousin on the Philadelphia police force, did not claim to have seen anything, as Mumias lawyers commented in their 11 March 2002 submission to the United States Court of Appeals for the Third Circuit:
Magilton did make one interesting observation when asked by McGill (8.80) about who was on the scene:
(43) Michael Scanlan, who is sometimes represented as a third prosecution eyewitness to the shooting, admitted that he had been drinking on the evening in question and that he did not know who killed Faulkner. When he appeared as a prosecution witness on the eighth day of the trial (25 June 1982, p 8.12) McGill asked him Are you able to identify anybody, either the driver, or the man who ran over and shot the police officer? Scanlan replied No, sir. He also indicated that while he had not seen a gun, he was certain that the shooter had an Afro hair style and the man who drove the Volkswagen had dread locks (25 June 1982, p 8.56). At the scene Scanlan had misidentified Mumia as the driver of the Volkswagen who was being beaten. (At that time, Billy Cook, like his brother Mumia, had his hair in dreadlocks.) Scanlans testimony that the shooter had an Afro would have excluded Mumia, yet Jackson failed to point out this highly significant contradiction in the prosecution case.
(44) Amnesty International, February 2000, p 19
(45) Ibid., p 20
(46) Transcript of pre-trial hearing, 22 February 1982, pp 7-8
(47) Amnesty International, February 2000, p 17
(48) Testimony of Cynthia White, 22 June 1982, p 5.159
(49) Trial transcript, 22 June 1982, p 5.151
(50) In a December 1995 article in the American Lawyer, Stuart Taylor Jr., a conservative lawyer who opined that Mumia was probably guilty, nonetheless considered that his trial was clearly grotesquely unfair and that:
(51) Trial transcript, 22 June 1982, p 5.93-94
(52) Amnesty International, February 2000, p 18
(53) Philadelphia Inquirer, 30 March 1982. Whites cooperation also won the release of a very close friend who works with me in what I do ostensibly because there was some concern over his safety in the prison because of his connection to her (22 June 1982, p 5.69; 21 June 1982, p 4.74).
(54) PCRA, 1 August 1995, pp 175-177
(55) Amnesty International, February 2000, p 18
(56) Ibid., p 19
(57) 11 March 2002 defense brief in response to Commonwealth of Pennsylvania filed with U.S. Third Circuit Court of Appeals, p 2
(58) PCRA, 1 July 1997, pp 49-51
(59) Yvette Williams affidavit, 28 January 2002, reprinted as Appendix No. 7
(60) Trial transcript, 23 June 1982, p 169, testimony of Anthony L. Paul, supervisor of Philadelphia Police Departments Firearms Identification Unit
(61) Trial transcript, 19 June 1982, p 3.67, testimony of Roy Land, of the Mobile Crime Detection Unit
(62) Trial transcript, 26 June 1982, p. 9.81
(63) Ibid., pp 9.82-83
(64) Trial transcript, 29 June 1982, pp 11.51-52
(65) Ibid., p 11.49. Jackson had sought to establish this in his 26 June cross-examination of Tumosa (pp 9.74-75):
(66) Ibid., pp 11.56-57
(67) Amnesty Internationals February 2000 report (p 21) notes:
The police appeared to be aware of the value of basic forensic testing. According to the testimony of Arnold Howard during the 1995 hearings, after he was arrested on suspicion of involvement in the Faulkner shooting, the police tested his hands to ascertain if he had fired a gun in the recent past. Howard was arrested because his drivers license application form was in Faulkners possession.
Police investigators also conducted a lead residue test on the doorway of 1234 Locust Street from which a bullet was extracted (Trial transcript, 19 June 1982, p 3.71).
(68) Trial transcript, 26 June 1982, testimony of Dr. Charles Tumosa: on Faulkner, p 9.17; on Jamal, p 9.46
(69) Ibid., pp 9.41-42:
(70) Amnesty International, February 2000, p 22
(71) Wolkenstein affidavit, point 29, see Appendix No. 9
(72) Unsigned police ballistic reported as quoted in Wolkenstein affidavit, Appendix No. 9, point 30
(73) Wolkenstein affidavit, point 30, see Appendix No. 9
(74) Trial transcript, 23 June 1982, pp 6.93 and 6.159, testimony of Anthony L. Paul
(75) Trial transcript, 28 June 1982, p 10.66, testimony of Dr. Anthony Coletta
(76) In testimony at the PCRA hearing of 4 August 1995, p 19, Dr. John Hayes, a recognized expert in forensic pathology, stated:
If Mr. Jamal is standing, he sustained a gunshot wound which goes downwards, backwards and from right to left, a falling shooter would be firing upwards at a standing man and therefore the wound pathway would be upwards through Mr. Jamals body.
(77) Trial transcript, 28 June 1982, pp 10.27-28
(78) In her affidavit (see Appendix No. 9, point 28) Rachel Wolkenstein commented that much in the prosecutions scenario was:
contrary to the available physical and ballistics evidence. For example, the location of bullets and fragments recovered at the scene, the absence of divots in the sidewalk, as well as the location of sidewalk blood stains, refute the overall prosecution scenario, including the claim that P.O. Faulkner was shot several times while he lay on the sidewalk with his head pointing east while the shooter faced east. The presence of the copper bullet jacket at the scene is inconsistent with the bullets supposedly in Jamals and Faulkners guns, pointing to a different gun from theirs being fired. Moreover, the officer who purportedly found Jamals gun and turned it in to the ballistics department, Stake Out officer James Forbes, testified at trial that the bullet cartridges in Jamals gun were of a different make than that recorded in the ballistics report. Similarly, the location of the bullet in the door frame of 1234 Locust Street as well as the description of this bullet in the ballistics report suggests that a second police weapon was fired.
In point 29 of her affidavit, Wolkenstein pointed to another discrepancy:
Moreover, although the Medical Examiners normal procedures are to x-ray bodies to locate all bullets or fragments, no x-rays of Faulkners body have yet been located or produced, raising questions concerning the caliber and number of bullets in Officer Faulkners body and raising issues of suppression of evidence.
(79) Philadelphia Inquirer, 9 January 1982
(80) In his trial testimony (24 June 1982, p 7.140) Bell admitted that he reported Mumias confession for the first time on 25 February 1982 and claimed that he had not even mentioned Mumia in his report log (75-48 book) for the night that Faulkner was shot:
(81) During her cross-examination on 24 June 1982 (p 7.52), Durham provided the following account:
(82) Trial transcript, 24 June 1982, p 7.108:
(83) See Appendix No. 10, Statement of Kenneth Pate
(84) Trial transcript, 1 July 1982, p 13.33
(85) Ibid., p 13.38
(86) Ibid., p 13.48. Wakshul did finally appear under subpoena in the 1995 PCRA hearings where he claimed that, like Bell, he too had been so upset that he failed to report Mumias confession until an interview on 11 February 1982 (PCRA hearing, 31 July 1995, pp 86-87 and 1 August 1995, pp 25, 26, 36-37). When Wakshul made his original report in December 1981 there had been no need for him to remember a confession as Giordano was looking after all of that.
Posted: 11 December 2006