3. The Prosecution’s Case
i. Leveraged ‘Eye Witnesses’There were three elements to the prosecution’s 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:
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 Attorney’s 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. Chobert’s 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 chauffeur’s 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 prosecution’s 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 Chobert’s 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 Chobert’s supposed credibility:
The prosecution’s 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:
White’s “identification” of Mumia as the shooter was central to the prosecution’s case. In a speech to Mumia’s supporters in San Francisco in May 2002, Marlene Kamish, who had joined Mumia’s legal team a year earlier, explained the significance of his request to be put in a lineup:
Another indication of Mumia’s innocence is the fact that the tale told by the prosecution’s key witness, Cynthia White, kept shifting, each time in a manner favorable to the prosecution:
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 White’s testimony—her claim that only three people had been present at the killing: Faulkner, Mumia and his brother.(49) At Billy Cook’s trial, only a few months earlier, with the same prosecutor, White had testified that there had been a fourth person—a passenger in Billy Cook’s car. This discrepancy is highly significant because it proves that Cynthia White, the District Attorney’s star witness, was lying under oath (with the probable connivance of both prosecutor and judge). The prosecution’s 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 Cook’s 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:
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:
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 Mumia’s 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 Mumia’s conviction:
Cynthia White was not the only prostitute approached about testifying against Mumia:
Jenkins had acted as a “confidential informant” for the FBI in one of its investigations of the Philadelphia police, but now the DA’s 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:
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.
ii. BallisticsThe second leg of the prosecution’s 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 prosecution’s 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 Mumia’s gun, which they claimed to have found empty beside him, had been fired recently. Nor did they test Mumia’s hands for gunshot residue. Nor were Faulkner’s 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 Philadelphia’s 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 prosecution’s 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:
Another highly suspicious aspect of the ballistics evidence is that a sizable bullet fragment found in Faulkner’s 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 (PDC—the legal defense arm of the Spartacist League/U.S. [SL]), who worked on Mumia’s defense for over a decade, noted:
Then there is also the question of who shot Mumia. According to the prosecution’s expert witness, the only bullet that could be positively identified was the one extracted from Mumia, which, he claimed, matched Faulkner’s gun. But the legal team that took Mumia’s appeal to the Pennsylvania Supreme Court in 2001 questioned whether it was in fact Faulkner’s 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 Mumia’s 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 Examiner’s 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 Makuch’s investigative log as “inaccurate,” but, unlike the official version, it is not contradicted by the physical evidence.(78) iii. A Bogus ConfessionThe third and final leg of the prosecution’s case was Mumia’s supposed “confession,” a transparent invention which has become something of an embarrassment to Mumia’s 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 Mumia’s preliminary hearing in January 1982:
But while constructing the case against Mumia, the DA’s 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 Mumia’s 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 Mumia’s “confession” was an important element in the prosecution’s case. But then, as if by magic, in February 1982 Faulkner’s 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. Bell’s 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 Pate’s 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. Wakshul’s report stated, “During this time the negro male made no comment.”(84) This flatly contradicted the claims by Bell and Durham to have heard Mumia’s “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 Jackson’s 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) Footnotes(42) Pre-trial transcript, 18 March 1982, pp 73-74. Jackson’s 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 Mumia’s 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.) Scanlan’s 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 (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. White’s 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 (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 Department’s 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 (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):
(67) Amnesty International’s 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 driver’s license application form was in Faulkner’s 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
(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:
(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 prosecution’s scenario was:
In point 29 of her affidavit, Wolkenstein pointed to another discrepancy:
(79) Philadelphia Inquirer, 9 January 1982 (80) In his trial testimony (24 June 1982, p 7.140) Bell admitted that he reported Mumia’s “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 (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 Mumia’s “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. |
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