Anatomy of a Racist Frame-Up
The Case of Mumia Abu-Jamal
4. A Tilted Trial
Jacksons defense of Mumia was unimpressive to say the least. The first witness called by the defense was Anthony Colletta, a third-year surgical resident at the hospital. Colletta testified that Mumia had lost a great deal of blood and had numerous bruises and injuries of a sort consistent with a brutal beating. McGill asserted that Mumia was responsible for his own injuries because he had smashed his head into a lamp post while resisting arrest, and then flailed about violently causing the arresting officers to momentarily lose their grip and drop him face first on the pavement. Collettas testimony in court established that Mumia had been subject to police brutality, but had little relevance to a charge of murder. Jackson did not raise the question of the supposed confession, although later, when asked about it by television interviewers, Colletta said he had heard no such thing and that Mumia seemed physically incapable of shouting out anything.
Besides Colletta, Jackson called only a few witnesses, and most of those were not particularly useful.(87) The most important defense witness was Dessie Hightower, a young accounting student at a local college, who testified that he had seen someone with dreadlocks flee the scene, but admitted under cross-examination that he could not tell if it was a man or a woman.(88) Hightower also reported seeing Faulkners gun still in its holster as his body was loaded into the ambulance, which contradicts the prosecutions scenario and suggests that Mumia was shot by someone other than Faulkner. During cross-examination McGill asked Hightower, Is there any particular reason that you focused on this holster? Hightower replied, Because, one of the officers grabbed him by his holsterby the belt I guess you would call it.(89) Hightower also stated that the first police cars arrived almost immediately after the shootings, Maybe ten seconds, fifteen. It was so very, very, prompt, very prompt.(90)
Jackson considered his most important witness to be a young prostitute, Veronica Jones, who on 15 December 1981 had given a statement to two detectives at her mothers house in Camden, New Jersey in which she reported seeing two men flee the crime scene:
As I was walking away from the High Speedline entrance I heard firing. I heard three shots. I looked down Locust Street towards Johnny Dees 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 started sort of jogging. The next thing I saw was a wagon coming. There was one other black guy standing by the entrance of the Speedline by Johnny Dees.(91)
But when Jackson put Jones on the stand, she flatly denied seeing anyone flee the scene.(92) Jackson did not know that Jones, a 20 year-old with three small children, had been arrested a few weeks earlier and was facing ten years in jail on felony robbery and gun possession charges. Shortly before she testified, she was visited by two detectives in her jail cell who offered to have her charges dropped if she agreed to help the prosecution:
McGill objected that it was irrelevant whether or not Jones had been offered immunity in exchange for changing her testimony. Sabo upheld McGill, and ruled that the question of whether or not police officers had been suborning perjury was irrelevant and without implications for the credibility of other prosecution witnesses:
Fourteen years later, in October 1996, Jones again testified for the defense in Mumias Post-Conviction Relief hearing:
In one of the most brazen acts of intimidation in the whole frame-up, Assistant DA Arlene Fisk had Jones arrested on the witness stand at the PCRA hearing by New Jersey state troopers on a 1982 bench warrant for a few bounced checks. This was so outrageous that even the pro-cop Philadelphia Daily News complained, Such heavy-handed tactics can only confirm suspicions that the court is incapable of giving Abu-Jamal a fair hearing.
On 1 July 1982, as his trial drew to a close, Mumia made his final protest against the kangaroo court proceedings, and denounced Sabos refusal to permit him to make the closing argument to the jury. Asked if he wished to waive his right to take the stand in his own defense he replied:
On 2 July 1982 the jury returned a guilty verdict. In most states after a guilty verdict is registered in a capital murder trial there is a second, penalty phase in which the jury hears testimony on whether or not to impose the death penalty. According to a long-standing common law tradition, in this phase a convicted person has the right of allocution, i.e., the right to address the sentencer before the sentence is imposed. A convicted person who chooses to speak at this time is not considered to be testifying and is therefore not subject to cross-examination.
Mumia was permitted to read a statement in accordance with his right to allocution. He took the opportunity to criticize some of the more blatantly prejudiced aspects of his trial, including Sabos revocation of his right to defend himself and to seek John Africas assistance. He also criticized Sabos decisions limiting evidence and Jacksons willingness to play by the rules laid down by the hanging judge:
It was a legal, trained lawyer who told the jury You have heard all the evidenceknowing that wasnt so. The jury heard merely what Sabo allowednothing more.
Mumia proclaimed his innocence and roundly denounced all the officers of the court:
I am innocent of these charges that I have been charged of and convicted of and despite the connivance of Sabo, McGill and Jackson to deny me my so-called rights to represent myself, to assistance of my choice, to personally select a jury who is totally of my peers, to cross-examine witnesses, and to make both opening and closing arguments, I am still innocent of these charges.(97)
After Mumia concluded, Sabo outrageously permitted McGill to cross-examine him.(98) McGill used this opportunity to suggest that Mumias participation in the Black Panthers a dozen years earlier had somehow turned him into an executioner:
McGill talked of how people like his mother, then in her seventies, depended on police officers to protect them, and appealed to the jurors to help prevent a descent into the jungle:
The only symbol of people that are attempting to enforce the law, to control and protect people are police officers. And, if you can at will kill police, ladies and gentlemen, you then make that extra step towards the area which is without law enforcement, which is an outright jungle.
In his summation McGill hinted that Mumias radical politics should incline the jurors to want to sentence him to death:
The law of Judge Sabo, the law of the Supreme Court. Again, this is what this is all about, law and order. How do we avoid it if we dont like it, we dont just accept it, and we dont try to change it from within, we just rebel against it. And maybe that was the siege all the way back then with political power, power growing out of the barrel of a gun. No matter who said it, when you do say it and when you feel it, and particularly in an area when youre talking about police or cops or shootings and so forth, even back then, this is not something that happened over night.(100)
On 3 July 1982, after deliberating for only three and a half hours, the jury came back with a recommendation of death.
McGills attempt to make an issue of Mumias membership in the Black Panther Party is in itself sufficient grounds for overturning his sentence. In 1992, in Dawson v. Delaware, the U.S. Supreme Court ruled that the introduction of a defendants political views in the penalty phase of a capital trial is an unconstitutional violation of free speech. The Supreme Court stated that the prosecution had been wrong to introduce the defendants membership in the fascist Aryan Brotherhood in arguing for execution:
Whatever label is given to the evidence presented...Dawsons First Amendment rights were violated by the admission of the Aryan Brotherhood evidence...because the evidence proved nothing more than Dawsons abstract beliefs.(101)
The Delaware Supreme Court, which had earlier thrown out Dawsons appeal, had cited Mumias case as a precedent:
The Delaware Supreme Court cited, and adopted verbatim, the Pennsylvania Supreme Courts ruling in the Abu-Jamal case to deny the appeal of Delaware death row prisoner, David Dawson. It would now appear that the US Supreme Court has found fault with the Pennsylvania Supreme Courts logic, through its ruling in Dawson v. Delaware.(102)
Another gross impropriety committed by the prosecutor, Joseph McGill, in the penalty phase of Mumias trial was his suggestion that Mumia would have recourse to a virtually limitless series of appeals:
Ladies and gentlemen, you are not asked to kill anybody. You are asked to follow the law. The same law that I keep on throwing at you, saying those words, law and order. I should point out to you its the same law that has for six months provided safeguards for this defendant. The same law, ladies and gentlemen, the same law that will provide him appeal after appeal after appeal .The same law, ladies and gentlemen, that has made it so because of the constant appeals, that as Mr. Jackson said, nobody at all has died in Pennsylvania since 1962 for an incident that occurred in 1959.(103)
Prosecutors know that jurors are more likely to deliver a death sentence if they think it unlikely to be carried out. In 1986 the Pennsylvania Supreme Court had ruled that this was an illegitimate procedure, but later made a special exception for Mumia:
In a previous case also presided over by Judge Sabo (Commonwealth v Baker), and involving the same prosecutor, Joseph McGill, the prosecution also described the lengthy appeals of death row inmates in his summation to the jury. In 1986 the Pennsylvania Supreme Court overturned Bakers death sentence, on the grounds that such language minimiz[ed] the jurys sense of responsibility for a verdict of death. The court then reversed this precedent in 1989 by upholding Abu-Jamals death sentence, only to reestablish it in 1990, in the case of Commonwealth v Beasley, ordering the precluding of all remarks about the appellate process in all future trials. This contradictory series of precedents leaves the disturbing impression that the Court invented a new standard of procedure to apply it to one case only: that of Mumia Abu-Jamal.(104)
This conclusively demonstrates that the Pennsylvania Supreme Court is a highly politicized body prepared to discard its own rulings in order to fry Mumia. Most of the courts members, who win their posts through election, have unusually close relations with various police organizations:
Pennsylvania Supreme Court Justice Ronald Castille, a particular favorite of the Fraternal Order of Police (FOP), is the former Philadelphia DA whose name appeared on prosecution briefs arguing that Mumias trial was fair, and that there was overwhelming evidence of his guilt. Castille pointed out that most of the others who sit on Pennsylvanias highest court share his bias:
I note that the very same FOP which endorsed me during earlier electoral processes also endorsed Mr. Chief Justice John P. Flaherty, Mr. Justice Ralph Cappy, Mr. Justice Russell M. Nigro, and Madame Justice Sandra Schultz Newman. If the FOPs endorsement constituted a basis for recusal, practically the entire court would be required to decline participation in this appeal. (106)
Amnesty International observed, The refusal of a judge to recuse himself from proceedings in which he previously served as an advocate for one of the parties is a serious breach of judicial ethics and timidly ventured that, the Courts own rulings on Abu-Jamals appeals have left the unfortunate impression that the state Supreme Court may have been unable to impartially adjudicate this controversial case.(107) As noted above, during Castilles tenure as Philadelphia District Attorney in the late 1980s, his office produced a videotape instructing prosecutors on how to use peremptory challenges to eliminate blacks from juries.(108) This was outrageous enough to be condemned by the Pennsylvania Supreme Court, yet none of the learned justices considered it a reason to disqualify Castille from participation in adjudicating Mumias appeals.
(87) The testimony of Detective William Thomas is discussed above. Jackson also called Sergeant Frederick Westerman of the Philadelphia Police Homicide Unit and Stefan Makuch, an investigator for the Medical Examiners office, whose testimony is also discussed above. Dr. Regina Cudemo, a psychiatric resident at the hospital, testified about her observations of police treatment of Mumia in the Emergency Department. Jackson recalled Cynthia White to investigate some of the discrepancies in her story, and also sought to call Debbie Kordansky, a woman who had given police the following statement
I was watching TV and I heard about five gun shots sometime between 3:45 and 4:00 a.m. The gunshots seemed to be in succession. I thought that it was firecrackers. I didnt look out the window at first. I heard sirens a short time later. I saw about ten squad cars and two vans at l3th and Locust Street. I saw a male running on the south side of Locust Street.
Kordansky openly admitted being hostile to blacks and only acting in an attempt to aid the police. When approached by Jackson to testify at the trial she simply refused, and Jackson got no help from Sabo in compelling her to appear. When she did finally testify at Mumias Post-Conviction Relief hearing, she reported hearing gunfire, looking out her hotel window and seeing a man fleeing the scene. (PCRA, 3 August 1995, pp 240-42)
(88) Trial transcript, 28 June 1982, p 10.127, p 10.148. The police were evidently not pleased with Hightowers account of seeing someone fleeing the area immediately after Faulkner was shot and subjected him to a polygraph test. The issue of Hightowers polygraph was raised in the PCRA hearing of 3 August 1995 (p 169) and was addressed during the testimony of Detective William Thomas, who had been in charge of the crime scene that night:
(89) Trial transcript, 28 June 1982, p 10.155-56
(90) Ibid., p 10.166. This is significant as it tends to confirm Arnold Beverlys statement (see Appendix No. 1) that police where present when he shot Faulkner.
(91) Statement of Veronica Jones, 15 December 1981, as read in court 29 June 1982, trial transcript p 11.106
(92) Ibid., p 11.99
(93) Amnesty International, February 2000, p 18. (Jones testimony in trial transcript, 29 June 1982, pp 11.129, 11.136)
(94) Trial transcript, 29 June 1982, p 11.140-41
(95) PCRA, 1 October 1996, p 24
(96) Trial transcript, 1 July 1982, pp 13.41-42
(97) Trial transcript, 3 July 1982, penalty phase summations, pp 14-15
(98) In the Petition for Post-Conviction Relief and/or Writ of Habeas Corpus, filed in Pennsylvania Court of Common Pleas 3 July 2001 Mumias lawyers argued:
764. Mr. Jamal chose not to testify during the innocence/guilt phase of his trial, but following conviction he chose to exercise his ancient common-law right of allocution in the penalty phase of the trial. The right to allocution, that is, the right of a defendant to personally address the sentencer in mitigation of punishment, is guaranteed by statute under the Pennsylvania Rules of Criminal Procedure, Rule 1405(a); is a due process right under the Fourteenth Amendment, is inextricably intertwined with the right not to testify against oneself under the Fifth and Fourteenth Amendments, and is constitutionally required in capital cases by the Eighth Amendment. Following his statement in allocution, Petitioner Jamal was cross-examined by the prosecutor, in violation of his right to allocution. (7/3/82 Tr. 10-33)
The denial of Mumias right to allocution without cross-examination is cited in the 27 August 2002 appeal to the Pennsylvania Supreme Court as one form in which Sabos gross prejudice deformed the original trial. A violation of this sort is normally considered sufficient grounds for overturning the sentence.
(99) Trial transcript, 3 July 1982, pp 21-22
(100) Ibid., p 68
(101) quoted in Amnesty International, February 2000, p 25
(103) Trial transcript, 3 July 1982, pp 71-72
(104) Amnesty International, February 2000, pp 25-26
(105) Ibid., pp 29-30
(106) Ibid., p 27
(108) See footnote No. 37
Posted: 11 December 2006