2. How the Frame-Up was Organized
It is well established in academic literature on the application of the death penalty in the U.S. that the race of both the defendant and the victim plays a major role.(21) A black person (at least one with less money then O.J. Simpson) normally has little chance of being acquitted of a crime if the victim is white. When the victim is a cop, conviction is virtually certain. Jamal’s case illustrates how the judicial system operates to ensure that the jury delivers the “right” verdict.
A critical element in every trial is the selection of the judge. When the case was assigned to Philadelphia’s “King of Death Row,” Albert F. Sabo, the result was predetermined. Amnesty International reports:
“Albert Sabo was an Undersheriff of Philadelphia County for 16 years before becoming a judge in 1974. His official biography lists him as a former member of the National Sheriffs Association, ‘retired Fraternal Order of Police’ (FOP) and as associated with the Police Chiefs’ Association of South East Pennsylvania. As a judge he was no stranger to the death penalty. Over a period of 14 years, he presided over trials in which 31 defendants were sentenced to death, more than any other US judge as far as Amnesty International is aware. Of the 31 condemned defendants, 29 came from ethnic minorities.”
“In 1992 the Philadelphia Inquirer reviewed 35 homicide trials presided over by Judge Sabo. The investigation concluded that: ‘through his comments, his rulings and his instructions to the jury’ Judge Sabo ‘favored prosecutors.’ According to the report, in one case, Judge Sabo even urged the prosecution to introduce evidence because ‘it would be helpful to [get] a conviction.’ A review of the court records by the Inquirer showed ‘that most of the homicide judges in Philadelphia hear more murder cases than Judge Sabo with fewer death sentences.’”(22)
Not only did Sabo hold the record for the most people sentenced to death by any American judge, he is also thought to have had the highest percentage of capital convictions reversed on appeal.(23)
In August 2001 Mumia’s lawyers released a statement by Terri Maurer-Carter, an official court stenographer in the Court of Common Pleas, who reported that in 1982 at the time of the trial, she heard Sabo remark, in reference to Mumia, “Yeah, and I’m going to help them fry the nigger.” So much for the supposed constitutional guarantee of a fair trial! Sabo’s behavior throughout the proceedings was entirely consistent with his racist declaration of intent to help the prosecution send Mumia to his death for a crime he did not commit. After keeping her mouth shut for two decades, Maurer-Carter, in an act of conscience, finally came forward.(24)
The second element in railroading Mumia was to hobble any effective defense. Anthony Jackson was approached by some of Mumia’s friends about the case and was subsequently appointed by the court as his lawyer. Jackson may have initially taken this high-profile case with good intentions. As director of the Public Interest Law Center of Philadelphia (PILCOP) he had earned a reputation as an effective opponent of police brutality, but he was entirely unqualified for such a politically-charged case.
While the prosecution had virtually unlimited funds to pursue a conviction (police interviewed some 100 witnesses in the case) the defense had next to nothing. Philadelphia, like most big American cities, encourages its judges to be stingy when doling out public funds for indigent defendants to conduct investigations or hire expert witnesses. On 18 March 1982, in a pre-trial hearing before Judge Paul Ribner, Jackson complained that $150 was not enough to hire an investigator or forensic pathologist, and requested additional funds.(25) Ribner advised Jackson to somehow pay for the experts and then seek reimbursement from the trial judge. As Ribner explained, under capitalism “justice” is a commodity, and everyone is only entitled to as much as they can afford:
“THE COURT: The experts you want aren’t more privileged than the rest of us in the world. None of us gets paid in advance.
“MR. JACKSON: I understand that. The problem is that Mr. Jamal is indigent.
“THE COURT: That’s true in almost every case we have, the bulk of the cases. We don’t have any multi-millionaires on the list over there. Everybody is in the same boat. You understand that.
“MR. JACKSON: I understand that. But the problem is, what do we do if it’s required—and I am saying that it is required—and these experts require their money in advance, or certainly in a timely—
“THE COURT: Tell them point-blank they are not going to get money in advance. You handle your case as you see fit.”
This left Jackson with little recourse but to “handle” Mumia’s defense without any effective assistance. A bit later Ribner cynically suggested that perhaps Mumia could find help in California:
“MR. JACKSON:…I have not been able to secure a forensic pathologist, for one hundred and fifty dollars. Most forensic pathologists won’t even review—
“THE COURT: Out in California they may be available.
“MR. JACKSON: That’s what I understand. In California, I understand there’s a forensic pathologist available. But unfortunately, I believe I would have to pay his transportation costs to come here.”(26)
What Jackson failed to do, that a competent attorney would have, was to present Ribner with a specific motion, backed up by a declaration estimating the cost of the time and expenses for a ballistics expert to review the evidence. Making such a request would have increased the likelihood of getting the money, and failing that, provided the necessary groundwork for a successful appeal on this point.
Jackson subsequently asked for another attorney to be assigned to assist him with this complicated case, but this request was also denied. He had no paralegals and only a part-time secretary to assist him.(27) Without an investigator, a ballistics expert, a pathologist or even a legal assistant, Jackson could not possibly have mounted an effective defense, even if he had not been distracted by his attempts to open an office and launch a private law practice. During the trial itself, Jackson was further distracted by threats against himself and his son made by unknown persons.(28)
Mumia, who was somewhat familiar with the operation of the judicial system after observing the MOVE 9 trial a year earlier, had gradually lost confidence in Jackson. On 13 May 1982, a few weeks before the pre-trial hearings were scheduled to begin, Mumia decided that he would be better off representing himself. Judge Ribner was reluctant to reject Mumia’s motion outright, as the Sixth Amendment to the U.S. Constitution supposedly guarantees the right to self-representation. But he refused Jackson’s request to be released from the case, and ordered him to remain in the ambiguous capacity of “backup counsel.” From this point on Jackson, by his own admission, didn’t do anything to prepare for trial.(29) When he first appeared before Sabo, Jackson again asked to be taken off the case:
“I feel uncomfortable in this position being backup counsel. I figured, number one, because [of] my legal training I could probably be a better lawyer than Mr. Jamal; at the same time, I recognize Mr. Jamal’s right to self-representation and his choice of his own counsel. I understand what the law says. I don’t want to be in a position of interfering with his right or in his selection of counsel. It puts me in an unenviable position of being forced to do something that, number one, I don’t feel qualified and comfortable to do and, number two, it’s not being accepted by Mr. Jamal.”(30)
Sabo turned Jackson down this time, and on several subsequent occasions. He also rejected Mumia’s request to have MOVE leader John Africa assist him at the defense table. Mumia had witnessed Africa’s successful defense of himself in a 1981 trial on weapons charges when the MOVE leader instructed his court-appointed attorneys not to raise any objections, and then made an hour-long closing summation to the jury. Four days later, the jury acquitted the defendants on all charges. Sabo and McGill were not going to risk a repetition:
“This request [for John Africa’s participation] was permissible under Pennsylvania law but was denied by Judge Sabo. When pressed by Abu-Jamal, who gave examples of other judges who had allowed non-lawyers to sit at the table of defendants, Judge Sabo stated that unless there was a legal precedent, he did not care what other judges did, and continued to refuse the request.”(31)
Early on in the jury selection process, Sabo stripped Mumia of his pro se status—i.e., his right to represent himself—and forced the unprepared Jackson to take over the defense. Sabo claimed that this action was taken without prejudice, but, as Mumia observed, Sabo’s obvious motive was to make it easier to secure a conviction. The report by Amnesty International concluded that there was no legitimate reason to revoke Mumia’s constitutional right to defend himself:
“During jury selection on the third day of the trial, at the suggestion of the prosecution, Judge Sabo withdrew permission for Mumia Abu-Jamal to act as his own attorney—supposedly only for the duration of jury selection. Judge Sabo based this decision on Abu-Jamal’s alleged slowness in questioning potential jurors and on the grounds that his status as an accused murderer instilled fear and anxiety in the jurors. However, Judge Sabo did concede that ‘…it is true I have not rebuked Mr. Jamal at any time [during jury selection].’
“Jackson objected to the ruling, pointing out to Judge Sabo that ‘The last case I had before you, it took us nine days to select a jury and it certainly didn’t have as much publicity as this case.’ Jackson noted that jury selection in another homicide case had taken five weeks to complete. He went on to state that ‘in all homicide cases, particularly in capital cases… jurors express some apprehension, some unsettlement, some fear with regard to the whole process.’ These objections were to no avail, Judge Sabo continued to deny Abu-Jamal the right to represent himself.
“The Philadelphia Inquirer described Abu-Jamal’s conduct prior to his removal as lead counsel as ‘intent and business like’ and ‘subdued.’ In the first two days of the trial, Abu-Jamal had questioned 23 prospective jurors, successfully challenging two for ‘cause’ (bias), defeating a prosecution challenge for cause, and exercising two peremptory strikes (the right to remove a prospective juror without giving reasons).
“Amnesty International’s own examination of the trial transcript found no justifiable reason for the revoking of Mumia Abu-Jamal’s right to question potential jurors. At no point during his questioning was he rude or aggressive and his examinations are very similar, in terms of length, to those of the prosecution. His questions were pertinent to the selection of a fair jury. The removal of Abu-Jamal’s right to represent himself at this point in the trial is not supported in any way by the record of the trial. Judge Sabo’s comment that ‘You have indicated to this court that you do not have the expertise necessary to conduct voir dire’ (jury selection) is likewise not supported by the record.”
On the first day of his trial Mumia complained, “This is not a fair trial. I haven’t had the counsel of my choice.”(32) Sabo brushed aside his objections.
Jackson made no opening remarks, thus ceding round one to the state. After this performance, when Mumia used most of the second day to protest Sabo’s refusal to let him defend himself, he was removed from the courtroom. When two of Mumia’s brothers, Wayne and Billy, protested this outrage, Sabo threw them in jail for 60 days. Every time Mumia attempted to assert his rights, he was removed from the courtroom and as a result he was present for only half his trial. As Mumia’s 1995 petition for Post-Conviction Relief (PCRA) hearings later pointed out, “Mr. Jamal’s absence from huge segments of the trial could only have tarnished the jury’s view of Mr. Jamal.”(33)
Jackson’s failure to do any preparation during the most critical period (i.e., the month prior to the opening of the trial) practically guaranteed a conviction. Although Jackson called only three witnesses, he did not even bother to interview a single one of them prior to putting them on the stand. This can only be characterized as gross incompetence.(34) While Jackson had a good reputation in the black community for effectively litigating cases involving police brutality during his time at PILCOP, he clearly resented being saddled with Mumia’s case. But Sabo had no intention of allowing Jackson to withdraw. As far as the “hanging judge” was concerned, Mumia had the “defense” he deserved.(35) Jackson had to be aware, given the way the legal system operates, that winning such a high-profile case would very likely destroy his career. No judge would appoint him to subsequent cases, and the prosecutors could have simply refused to give him fair plea bargains, thus forcing him to try every case, thereby ensuring much harsher penalties for any of his clients who were convicted. Before long he would have a reputation as a “bad” lawyer who could not even negotiate reduced sentences.
Jackson did make the useful observation that in his experience the Philadelphia District Attorney’s (DA) office made a practice of routinely peremptorily eliminating black jurors. A total of 43 people, including 15 blacks, were interviewed during the jury selection process. The prosecution used its peremptory challenges to reject 15 potential jurors, 11 of whom were black. An expert statistician, Professor Eugene P. Ericksen of Temple University, reviewed the data and observed, “it is highly improbable that the prosecution’s use of peremptory challenges to excuse Black venirepersons from Petitioner Jamal’s jury was unrelated to their race.”(36)
Evidence recently surfaced which proves that Philadelphia prosecutors were systematically trained to eliminate blacks from juries. In the early 1980s the video production department of the District Attorney’s office—DATV—even produced a training video in which Jack McMahon, a senior prosecutor, instructed new attorneys on picking a “good” jury:
“One year after the Batson ruling [in 1986 the U.S. Supreme Court had ruled in Batson v. Kentucky that the process of selecting jurors must be ‘race neutral’], the Assistant District Attorney for Philadelphia made a training videotape for the city’s prosecutors. On the video, he describes how to select a jury more likely to convict, including the removal of potential black jurors:
“‘Let’s face it, the blacks from the low-income areas are less likely to convict. There’s a resentment to law enforcement… You don’t want those guys on your jury… If you get a white teacher in a black school who’s sick of these guys, that may be the one to accept.’
“The video also instructed the trainee prosecutors on how to hide the racial motivation for the rejection of prospective jurors in order to avoid successful claims of racial discrimination from defense lawyers. The tape did not become public until 1997.”(37)
To conserve peremptory strikes, prosecutors were also trained to rigorously “Witherspoon”(38) prospective jurors—disqualifying those who oppose the death penalty, as many American blacks do.
While the prosecutors worked hard to keep anyone suspected of being sympathetic to Mumia off the jury, Jackson gave a free pass to several jurors who were almost certain to favor the prosecution:
“Juror number 11 was the close friend of a police officer who had been shot while on duty. While being questioned, he openly admitted that this experience could mean he was unable to be a fair juror because of his feelings concerning his friend. Juror number 15 (an alternate) was the wife of a serving police officer. Jackson allowed both onto the jury without objection.”(39)
Jury-rigging didn’t end with the voir dire. Early in the proceedings Sabo refused to permit Jennie Dawley, one of only three blacks on the jury, to take her sick cat to the vet. When Dawley broke sequestration to save her pet, Sabo replaced her with a white juror, Edward Courchain, who, when asked during jury selection whether he “could be objective in this matter,” responded “No” and went on to state, “I don’t think I could be fair to both sides.” Jackson had asked that he be removed, but Sabo seated him anyway.(40) Later in the trial, when a white male juror wanted to write a civil service test, Sabo suspended proceedings for half a day to allow him to do so. This made it clear that, in Sabo’s courtroom, jurors presumed to favor the prosecution received preferential treatment.
“In a 1990 report, the non-partisan US General Accounting Office found ‘a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty.’ The study concluded that a defendant was several times more likely to be sentenced to death if the murder victim was white. This confirms the findings of many other studies that, holding all other factors constant, the single most reliable predictor of whether someone will be sentenced to death is the race of the victim.
“A recent study on the city of Philadelphia found that, even after making allowances for case differences, the odds of receiving a death sentence in Philadelphia are nearly four times higher if the defendant is African-American. (David Baldus, et al., ‘Race Discrimination and the Death Penalty in the Post Furman Era.’ Cornell Law Review, September 1998.)”
“K. Even more compelling is the record number of reversals of capital cases tried before Judge Sabo. According to the prestigious Pennsylvania Capital Resource Center in Philadelphia, a total of 11 cases presided over by Judge Sabo have had [sic] been partially or totally reversed on appeal….No other judge sitting in Pennsylvania has had an equivalent percentage of capital cases he/she presided over reversed; and, on information and belief, no other judge in the United States as well.”
“I have not been able to secure the required experts for the fees. And Your Honor may recall that one hundred fifty dollars has been suggested for each of these experts. In addition, as Your Honor well knows, normally what happens is those fees are paid after the case is over, and sometimes that’s nine months to a year afterward. Under those circumstances I have not been able to get those qualified experts that I would need.
“THE COURT: Those are the standard fees that we agreed to as a matter of policy. I can’t really increase them at this level. You can get interim payments for the amounts that I authorized. As far as any additional payments are concerned, you will have to submit those with your pay petition. The trial judge will know what work was done, and he will either approve them or disapprove them. And then they will go [to] the Administrative Judge.
“MR. JACKSON: I am familiar with the procedure. The problem is that at this stage of the trial—I need the information and the resources of the experts prior to trial.
“THE COURT: I know.
“MR JACKSON: And I can’t secure that. That’s my problem.
“THE COURT: Well, that’s going to be a problem, getting an increase, because then we have to have a general increase. And I don’t think it’s in the cards at the current state of the court system and the budget and everything else.”
“(The following is a discussion in chambers with both counsel present.)
“THE COURT: It is now 10:48 a.m. and we were supposed to start at 9:30. You are late again, Mr. Jackson. What is the excuse this time?
“MR. JACKSON: This morning, Your Honor, at about 6:30, a quarter to 7:00, fire engines came to my house again and I think I indicated that to you, before. There was no fire. I left and I finally got to the office about ten minutes to 9:00. At about a quarter after 9:00 my son called me. I am a single parent. My son called me and indicated that someone called and asked for me and I wasn’t there. He said, ‘You are the one that we want. We will be over to get you.’ He is fifteen years of age. I told him to leave the house and go to my mother’s house.
“Less than five minutes later, he called back and said it was a different person that called. I then decided to go home and pick him up and take him to my mother’s house.
“I don’t know who made the calls. He couldn’t tell whether they were black, white, old or young. I thought that the best thing for me to do was to take him over to my mother’s house.”
“Q. [Charles Grant, Assistant DA] This is what I want to ask you. When you became backup Counsel—
“A. [Jackson] Right.
“Q.—according to the affidavit you filed with that man two months ago or three months ago, you said in effect, I abandoned all efforts at trial preparation and you assumed your responsibility for doing so was over, did you say that?
“A. I did, sir.
“MR. GRANT: Mr. Weinglass, would you leave me alone.
“BY MR. GRANT:
“Q. What did you mean by that?
“A. Well, just as I said to you yesterday, again, in that never-never land of being backup Counsel, I told you I was just going to sit back with my hands folded (indicating).
“Q. You were going to do that when you knew what this meant to both your career and the person you had come to befriend?
“A. Sir, when I am backup Counsel it didn’t mean much to me at all. I was put in a position I didn’t want to be in. I was no good. I wasn’t doing myself any good, I wasn’t doing him any good.
“Q. It didn’t stop you from submitting a fee petition, did it?
“A. The Court was ordering me to be there. I didn’t mean at the present time I didn’t want to be there. If they are going to make me be there they are going to pay for it.”
(33) Weinglass, p 89. PCRA hearings are post-conviction hearings in which the judge who heard the case has an opportunity to review the verdict in light of information that may not have been available at the time of the trial which might indicate that a conviction was mistaken, or that the defendant’s constitutional rights were violated resulting in an unfair trial. The PCRA hearing is important, even when judicial prejudice makes the result a forgone conclusion, because it is the last time the defense has the right to introduce new evidence into the record. Post-conviction relief proceedings must be initiated by the convicted person filing a “petition.”
“On information and belief, at the time of the PCRA hearing in 1995, attorney Weinglass and attorney Williams were aware that attorney Jackson had been suspended from the practice of law in 1990 and disbarred in 1992, at least in part, because of drug abuse. However, they failed to investigate, request discovery or even question attorney Jackson on direct examination as to his possible drug abuse at the time of the original trial, nor did they question him as to the reasons for his suspension and disbarment from the practice of law.”
(35) While adamantly denying Mumia his constitutional right to defend himself, Sabo appeared concerned that he might be creating grounds for a successful appeal, and at various points encouraged Mumia to take part in the kangaroo court proceedings. On the second day of the trial (18 June 1982) Sabo warned him that non-participation risked “Waiving his constitutional right which could be lost forever” (p 2.77). Mumia responded (p 2.81-2):
“THE DEFENDANT: It’s very curious that the Court seems protective of certain rights and clearly doesn’t give a damn about others, the right of self-representation is absolutely an absolute right. Just like the constitutional rights you had about objections, examining, cross-examining witnesses, but the right of self-representation has been stolen by you several times during the voir dire, and it’s been stolen before this actual trial began. My right of determining a jury of my peers was seized by you without cause. My right of self representation was stolen by you without cause and without reason.
“THE COURT: I’m just saying—
“THE DEFENDANT: The rights you’re saying are not rights at all if you can take them at—
“THE COURT: You have rights—
“THE DEFENDANT: If they’re not absolute rights they’re not rights at all.”
“If the prosecution’s striking of potential jurors were ‘race-neutral,’ i.e. done without reference to the person’s race, the probability that 11 or more of the challenged jurors would be Black is extremely small. I have calculated that probability to be 0.0194% or 1 out of 5,155.”
(37) Amnesty International, February 2000, p 14. The District Attorney (DA) at the time was Ronald D. Castille and his name, along with the official seal of the City of Philadelphia, appears in the videotape’s first frame. In 2000 the Pennsylvania Supreme Court condemned the video for recommending practices “which flaunt constitutional principles in a highly flagrant manner” (Commonwealth v Basemore, 560 Pa 258, 744 A2d 717, 731, n. 12 ). Yet Castille, who as DA had been responsible for it, refused to recuse himself from Mumia’s appeals.
“The jury eventually selected (including the four alternate jurors) consisted of two blacks and 14 whites. The population of Philadelphia at the time of the trial was 40 percent African American; a jury racially representative of the community could thus have been expected to include at least five black members.
“The prosecution used 11 out of its 15 peremptory strikes to remove African Americans from the jury.”