Anatomy of a Racist Frame-Up
The Case of Mumia Abu-Jamal
Appendix No. 12: From Sacco and Vanzetti to Mumia Abu-Jamal
The following text is reprinted from
1917, No. 25. It was
originally presented at a Hofstra University symposium on Sacco and Vanzetti on
4 October 2002 by Eliot Lee Grossman, then one of Mumia Abu-Jamal's lawyers.
Interest in the guilt or innocence of an accused person or
in the adequacy of the legal machinery employed in determining a problem of
this nature reaches at times the intensity of a social question. The conscience
of a community, sometimes that of the whole civilized world, may feel itself
under such circumstances involved in the fate of a person otherwise obscure;
and partisanship may run so high that in the locality whose courts are under
scrutiny the case at issue can hardly be discussed with reason.
Osmond K. Fraenkel, The Sacco-Vanzetti Case, 1931
While the foregoing quotation could well describe the contemporary
case of Mumia Abu-Jamal, it is taken from prominent New York attorney Osmond
Fraenkels introduction to his classic study of the case of Sacco and
Vanzetti, published four years after their 1927 execution. Sacco and Vanzetti
were convicted of the murder of a paymaster and a guard during a hold-up in
South Braintree, Massachusetts in 1920, carried out by a gang of five robbers.
The two anarchists were convicted and sentenced to death in an atmosphere of
post-World War I patriotic fervor, prejudice against draft-resisters,
xenophobia and anti-communism.
Mumia Abu-Jamal was convicted of the murder of a police officer in
downtown Philadelphia, Pennsylvania in 1981. Mumia was convicted and sentenced
to death in the context of local hysteria against the MOVE organization, of
which he was the most prominent supporter, and a trial in which the prosecutor
used against Mumia political statements made at age 16 when he was Minister of
Information of the Philadelphia branch of the Black Panther Party. In December
of 2001, a federal judge threw out Mumias death sentence, but affirmed
his conviction. Mumias life still hangs in the balance, however, as the
state is appealing this decision and has announced its intention to again seek
the death penalty if there is a new sentencing hearing.
A mass political movement grew up around both cases which has made
them internationally known and enlisted the support of prominent individuals
and numerous organizations throughout the world....
The Construction of the Other
Newspapers played the predominant role in the mass
media in Sacco and Vanzettis time. The manner in which the newspapers
constructed the defendants as other flowed directly out of their
hostility (which is to say, that of their owners) to these foreign-born
Reds whose fractured English, refusal to serve as soldiers in the
World War, and despised political opinions not only marked them as
other to the prevailing patriotic ideology, but whose political
defense campaign directly challenged the validity of the prevailing myths about
the legitimacy of American democracy in general, and the fairness of the
American legal system in particular. Illustrative of this were two New York
Times editorials in 1921 which praised Judge Thayers decision denying a
new trial and defended his handling of the original one from the
indignation manufactured and manifested against it in Europe which
the newspaper attributed to the efforts of Communist comrades of the
defendants. The Times went on to viciously attack domestic
Reds who were raising a fat [defense] fund to insure that
every legal technicality will be used.
Despite, or perhaps because of, televisions
dominant role in the mass media of our time, television coverage of
Mumias case has been almost nonexistent, with the exception of a vicious
hit piece perpetrated by pseudo-journalist Sam Donaldson on ABCs
20/20, and short items broadcast immediately after a federal judge
threw out Mumias death sentence [in December 2001], the spin of these
stories being the consternation of the slain police officers widow that
Mumia had not been executed years before.
The only exception to this construction of Mumia as
convicted cop-killerthe ultimate other for the
defenders of law and order American-styletook place on
NBCs Today Show the day after the federal judges
decision, when the author of this paper and Pam Africa from the International
Concerned Family and Friends of Mumia Abu-Jamal refused to be interviewed
opposite the slain officers widow and a mouthpiece for the Fraternal
Order of Police unless the videotaped confession of Arnold Beverly, the man who
committed the crime for which Mumia was sentenced to death, was aired. Although
the network played less than the first minute of the 5-minute videotape, the
force of Arnold Beverlys confessionwhich you will see in its
entirety at the conclusion of the presentation of this papereffectively
deconstructed the medias misconstruction of this case....
Arnold Beverlys confession has been censored out of any
national news coverage although it took over the entire front page of the
sensationalistic Philadelphia Daily News when we filed it in federal court
on May 4, 2001. That day the Daily News ran a full-page photograph of
Mumia with the headline Abu-Jamal Attorneys Drop A Bombshell: Affidavit
from self-described hit man says mob hired him to kill Faulkner. Even
Project Censored, which purports to be a vaguely leftist critic of
the bourgeois press, has censored the Arnold Beverly story, leaving it out of
its list of the 25 Most Censored News Stories of 2001.
From Sacco and Vanzetti to Mumia Abu-Jamal
The invitation to Mumia Abu-Jamals attorneys to present a
paper at this symposium was motivated, in part, by our having filed in
Mumias habeas corpus proceedings in federal court a memorandum of law
drawing a direct historical parallel between the Sacco/Vanzetti case and that
of Mumia. We attached to that legal memorandum a copy of Felix
Frankfurters classic article on the Sacco and Vanzetti case from the
March 1927 issue of the Atlantic Monthly and we urged the judge not to
permit the same injustice to be perpetrated upon Mumia Abu-Jamal.
We were inspired to file that legal memorandum by a retired
longshoreman [Howard Keylor] who played a significant role in motivating his
unions political strike in support of Mumia which shut down West Coast
ports for eight hours in 1999, and who brought to our attention the fact that,
in the case of Sacco and Vanzetti, as in that of Mumia Abu-Jamal, one of the
professional criminals responsible for the crime for which these innocent men
were convicted and condemned to death had confessed and exonerated them of any
participation in the crime. We will return to the subject of Celestino
Medeiros confession in the Sacco/Vanzetti case and Arnold Beverlys
confession in the Mumia Abu-Jamal case after comparing some key elements of the
grotesque unfairness of the trials in both cases.
The Rigging of the Trials
The Sacco/Vanzetti and Mumia Abu-Jamal trials were both rigged
against the defendants from the very beginning. In the case of Sacco and
Vanzetti, the early stages of jury selection resulted in only seven jurors
being selected and the remainder of the pool of 500 potential jurors being
rejected. The trial judge then dispatched the local sheriffs department
to round-up more potential jurors overnight. The sheriffs admitted on
subsequent cross-examination by defense counsel that they hand-picked the new
jury pool from persons personally known to them whom they thought would be
good jurors. Many of these hand-picked jurors were not even on the
jury lists.
Mumia Abu-Jamal repeatedly demanded a line-up during pretrial
proceedings in his case, but these defense motions were all denied. The
prosecution initially opposed a line-up as irrelevant because they had no
witnesses who could identify Mumia as the person who shot the police officer.
Instead, the prosecution announced that it would seek to prove its case by
process of elimination and would show that he was the only person present who
could have committed the crime. Three days after the first defense motion for a
line-up was denied, however, the prosecution put street prostitute Cynthia
White on the witness stand at the preliminary hearing to falsely identify Mumia
as the shooter.
The jury selection process was also manipulated by the trial judge
in Mumias case. Judge Sabo flagrantly violated Mumias
constitutional right to personally question the potential jurors when he was
defending himself, by taking the voir dire out of Mumias hands and
forcing him to choose between Sabo or his court-appointed attorney completing
it. Sabo wrongly denied a challenge for cause of a biased white alternate juror
who admitted that he could not give the defense a fair trial and Sabo then
improperly refused a defense peremptory challenge of the alternate. After the
jury was selected, Sabo and the prosecutor, with the connivance of Mumias
court-appointed attorney, manipulated a Black woman off the jury for alleged
violation of the sequestration rules without affording her a hearing. As a
result, the biased white alternate took the Black jurors place.
The prosecution in the Sacco/Vanzetti case used the
defendants political opinions, particularly their opposition to World War
I, to inflame the jury against them. In his cross-examination of Sacco, the
lead prosecutor asked if he loved this country when he fled to
Mexico in May of 1917 to avoid the draft. This irrelevant and highly
prejudicial line of questioning went on and on, over repeated objections by
defense counsel, all of which were denied. Judge Thayer reinforced the
prosecutions tactics in his final charge to the jury by commending them
for responding to the call for jury service like the true soldier, [who]
responded to that call in the spirit of supreme American loyalty. Thayer
continued with a paean to the word loyalty which drew an implicit but unstated
comparison between the disloyal foreign and atheistic anarchists on trial and
the loyal God-fearing jurors whose patriotic duty it was to decide their fate.
The prosecution at Mumia Abu-Jamals trial
used a political statement by Mumia when he was 16 years old, quoting Mao
Zedongs aphorism that political power grows out of the barrel of a
gun, to argue for the death penalty. This cross-examination was
improperly permitted by Judge Sabo after Mumia made a statement to the jury in
exercise of his right to allocution. The right to allocution is the
right of a convicted person to personally address the sentencer before sentence
is pronounced. Although that right was protected under both the common law and
by statute in Pennsylvania, so that cross-examination should not have been
permitted, the Pennsylvania Supreme Court reinterpreted the law to
retroactively repeal the right to allocution in death penalty cases when this
issue was raised in Mumias direct appeal.
The Bias of the Judges
In the Sacco/Vanzetti case numerous prominent witnesses testified
in support of the clemency petition to the Governor of Massachusetts as to
Judge Thayers vitriolic statements and prejudice against the defendants
and their counsel. Robert Benchley, then drama editor of Life Magazine, who
knew Thayer well, recounted a conversation with a mutual friend who
enthusiastically reported the judges private comments at the time of the
trial that these bastards down in Boston were trying to intimidate him.
He would show them that they could not and that he would like to get a few of
those Reds and hang them too. A Dartmouth College professor and attorney
of conservative views recounted that Thayer told him after denying defense
post-trial motions: Did you see what I did with those anarchistic
bastards the other day. I guess that will hold them for a while....Let them go
to the Supreme Court now and see what they can get out of them. The
Italian Counsel in Boston reported his impressions from having attended the
trial: he [Judge Thayer] was sure that those two men were guilty...and
this feeling of his was evident all through the trial. The special
commission created by the Governor of Massachusetts to review Sacco and
Vanzettis clemency petition gave short shrift to this evidence, in part
because it must have made little impact on the commission chairman, Harvard
University President Abbot Lawrence Lowell, who was an anti-Italian bigot
and an avowed racist whose accomplishments included the introduction of
racial and religious quotas into Harvards admission policies (see Alan M.
Dershowitzs introduction to a 1990 reissue of Fraenkels book).
In the case of Mumia Abu-Jamal, a court stenographer, Terri
Maurer-Carter, came forward in August of 2001 and submitted a declaration under
penalty of perjury that, while passing through the antechamber of Judge
Sabos courtroom at the time of Mumias trial, she overheard a
conversation in which Sabo said, in reference to Mumia, Yeah, and
Im going to help em fry the n----r. Sabos unremitting
hostility to Mumia was evident throughout the trial. Newspaper reports of the
1995 post-conviction proceedings before Sabo uniformly criticized his
contemptuous treatment of the defense.
In both cases the purported ballistics evidence was misrepresented
by the prosecution at trial, is highly suspect, and may have been tampered
with, if not fabricated, by the police. In both the Sacco/Vanzetti and Mumia
Abu-Jamal cases, the prosecution used the term consistent with to
describe the relationship between the purported fatal bullet and the
defendants handgun, creating the false impression that there was
scientific evidence to prove that the bullet was fired from that particular gun
when there was no such evidence. In both cases the use of this term was for the
express purpose of misleading the jury since the bullet at issue was also
consistent with having been fired by numerous other handguns
available in the United States at the time. In the clemency hearings held
before the governors special commission in the Sacco/Vanzetti case, the
defense presented evidence that the purported fatal bullet was not
genuine and argued that it had been substituted for the real bullet by the
police. In the Mumia Abu-Jamal case, what the medical examiner described as a
bullet fragment removed from the officers fatal wound
mysteriously disappeared from the envelope in which it was sent to the police
ballistics lab, and photographs of what is purported to be the fatal bullet do
not match its description in the ballistics report.
The Eyewitness Testimony
Of the witnesses in the Sacco and Vanzetti case who purported to
identify the defendants as present at the crime scene, only one witness claimed
to have seen the shooting and he admitted to both the prosecution and the
defense before trial that he could not identify the shooters. All the other
eyewitnesses to the shooting either refused to identify the defendants or
testified that neither defendant was involved. None of the witnesses who
purported to locate Sacco or Vanzetti at the crime scene had an opportunity for
careful observation of the perpetrators. All of these witnesses, except for
one, either qualified their identification at some time or were reported by
others to have said they could not identify. Other witnesses, with as good or
better opportunities for observation, refused to identify or appeared for the
defense. In ruling on (and rejecting) post-trial motions by the defense in
1924, the original trial judge, Judge Thayer, expressed the opinion that the
jurys verdict did not rest on the eyewitness testimony.
In the case of Mumia Abu-Jamal, two purported eyewitnesses, Robert
Chobert and Cynthia White, testified that they saw Mumia shoot the police
officer. Chobert, a white taxi driver, was a convicted felon on probation for
firebombing a school. He was particularly vulnerable to police and/or
prosecution pressure as he was in daily violation of his probation conditions
for driving his cab without a license and was subject to over 30 years in state
prison if his probation were revoked. According to private investigator Mike
Newman, Chobert recanted his trial testimony to him in 1995, but despite
Newmans reporting this to Mumias ex-Chief Counsel Leonard
Weinglass, Weinglass did not question Chobert about the recantation when he
called Chobert as a witness in post-conviction hearings held that same year.
Cynthia White, a street prostitute, with numerous
convictions and several open cases at the time of Mumias trial, was just
as vulnerable to police or prosecutorial pressure. Despite her testimony
against Mumia, White was placed by one witness, William Singletary, in a
position from which she could not have seen the shooting. Recently, a new
witness came forward, Yvette Williams, who was in jail with White shortly after
the incident for which Mumia was prosecuted and convicted. Williams swears that
White admitted to her that she did not see the shooting and was high on drugs
at the time, but was coerced and bribed by the police to falsely identify Mumia
as the shooter. Williams submitted a sworn affidavit in which she states that
whenever White returned from interrogation sessions with
Philadelphia police detectives Williams observed her to have contraband
articles including sandwiches, sodas, white powder, and syringes.
The Irrelevance of Innocence
In the Sacco/Vanzetti case a young Portuguese
immigrant named Celestino Medeiros, who was confined in the same jail with
Sacco, sent him a note in November of 1925 which read: I hear by confess
to being in the south Braintree shoe company crime and Sacco and Vanzetti was
not in said crime. Medeiros later signed a sworn affidavit for the
convicted mens attorneys which stated that he had participated in the
robbery with four other men who were Italian, and provided various details of
the crime, but would not identify the other men. Sacco and Vanzettis
attorneys subsequently obtained an affidavit from a man who was an accomplice
of Medeiros in the hold-up for which Medeiros was incarcerated, and for which
he had been convicted of murder and sentenced to death. The man swore that
Medeiros had told him on numerous occasions that the South Braintree robbery
had been the work of the Joe Morelli gang, which consisted of five brothers.
There was substantial corroboration for the theory
that the Morelli gang was responsible for the crime. Indeed, there was so much
evidence of the Morelli gangs role in the robbery and murders that the
defense brief to the Massachusetts Supreme Court printed in parallel columns a
table comparing the strength of the case against the Morellis to the weakness
of the case against Sacco and Vanzetti. However, despite this and other
evidence of Sacco and Vanzettis innocence [both Sacco and Vanzetti
presented alibi witnesses at trial and in post-conviction proceedings who
testified that they were far from the crime scene on the date of the crime]
neither the governor, his special clemency commission, Judge Thayer or the
Massachusetts Supreme Court gave it serious consideration. Against the backdrop
of Medeiros confession, United States Supreme Court Justice Oliver
Wendell Holmes, the paragon of American jurists, rejected a habeas corpus
petition and application for stay of execution based on Judge Thayers
bias against the defendants and their counsel. Justice Brandeis, another of
Americas greatest jurists, refused to take any action to stop the
executions because his wife and daughter had shown interest in the case.
Justice Stone cited Holmes opinion in refusing an application for a stay
of execution. Chief Justice Taft was in Canada and refused to cross the border
to consider an application for a stay. Sacco and Vanzettis innocence was
irrelevant to these judges. The two men were executed on August 22, 1927,
immediately following the execution of Celestino Medeiros.
In the case of Mumia Abu-Jamal a man named Arnold
Beverly came forward in June of 1999 and signed a written confession under
penalty of perjury that he shot and killed Police Officer Daniel Faulkner.
Beverly exonerated Mumia of any participation in the crime. This confession was
suppressed by Mumias previous attorneys, Chief Counsel Leonard Weinglass
and Chief Legal Strategist Daniel Williams, and never presented to any court.
Mumia was forced to fire Williams in mid-2001 when he discovered that Williams
was about to publish a book which misrepresented the facts of his case and
repeatedly suggested that he was guiltyin direct violation of the Rules
of Professional Conduct which forbid an attorney from negotiating or entering
into a contract to publish a book about one of their active cases because of an
inherent conflict of interest. Mumia fired Weinglass at the same time because
he refused to take any action to stop Williams from publishing. Mumias
present attorneys, upon taking over his case, found the confession in the files
of prior counsel along with a mountain of corroborating evidence including the
results of a lie detector test administered to Beverly. All of this evidence
has now been filed with the courts and is analyzed in detail in the
post-conviction petition we filed in state court in July of 2001 [available at:
www.bolshevik.org/mumia/pcra.doc].
When the federal judge hearing Mumias habeas corpus
petition refused to authorize us to take Arnold Beverlys deposition, we
arranged for his confession to be videotaped and filed the videotape in state
and federal court....
Arnold Beverly states in his confession that he
and an accomplice were hired by corrupt police officers and organized crime to
kill Officer Faulkner because the officer was an obstacle to the pay-off racket
the police ran in downtown Philadelphia in the 1980s. This involved shaking
down the owners of after-hours clubs and gay bars, prostitutes and pimps, drug
dealers and others to pay protection against police raids or other
interference with their illicit activities. There were three independent FBI
investigations of corruption in the Philadelphia Police Department in the 1980s
which resulted in the convictions of 30 police officers including the Assistant
Commissioner of Police, the captain in charge of the downtown division that
Officer Faulkner worked out of and in which the incident in which he was killed
occurred, and the highest ranking officer at the crime scene investigation. The
head of homicide was an unindicted co-conspirator in these federal
prosecutions.
In his confession, Arnold Beverly recounts in
detail how he and an accomplice lay in wait for Faulkner; how Faulkner clutched
his chest, fell to one knee, and then onto his back when shots rang out; and
how Beverly walked over to where Faulkner lay, stood over Faulkner and shot him
between the eyes, and then used the underground subway system to leave the
scene.
Why Mumias previous attorneys suppressed
this evidence is not yet fully known, but it is known that they were subjected
to death threats to dissuade them from presenting evidence that might point to
the real killers. And it must have been obvious to these attorneys that to
present this evidence would put them up against ruthless and powerful forces
who posed a very real threat to their professional reputations and physical
safety. The manner in which the actions of Mumias attorneys undermined
and effectively sabotaged his defense is detailed in the post-conviction
petition we filed in state court in July of 2001.
Thus far, neither the state nor the federal judges
to whom the evidence of Mumia Abu-Jamals innocence has been presented
have given it serious consideration. Rather, as in the case of Sacco and
Vanzetti, the judges have considered Mumias innocence to be irrelevant.
They have used Weinglass and Williams suppression of this evidence
as a justification for their refusal to permit Arnold Beverly to testify in
open court.
Mumias case is now on appeal before the
Pennsylvania Supreme Court and the United States Court of Appeals for the Third
Circuit. The result of these appeals cannot presently be predicted. Whether
history will repeat itself and visit upon Mumia Abu-Jamal the same injustice
perpetrated upon Sacco and Vanzetti depends upon each of you who are members of
the public as much as it depends on each of us who are Mumias attorneys.
To compare the case of Mumia Abu-Jamal to that of Sacco and Vanzetti is to do
more than engage in an academic exercise, it is simultaneously to issue and
respond to a call to action: Free Mumia Abu-Jamal!
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