i. Witnesses for the Defense
Jackson’s 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. Colletta’s 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 Faulkner’s gun still in its holster as his body was loaded into the ambulance, which contradicts the prosecution’s 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 holster—by 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 mother’s 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 Dee’s 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 Dee’s.”(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:
“She claimed she had been offered inducements by the police to testify that she saw Abu-Jamal kill Faulkner, stating that ‘they [the police] were trying to get me to say something the other girl [White] said. I couldn’t do that.’ Jones went on to testify that ‘they [the police] told us we could work the area [as prostitutes] if we tell them [that Abu-Jamal was the shooter].
“However, Judge Sabo had the jury removed for this testimony and then ruled that Jones’ statements were inadmissible evidence. The jury were thus left unaware of the allegations that police officers were offering inducements in return for testimony against Abu-Jamal.” (93)
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:
“MR. MCGILL: I object to the whole area. As I have objected throughout….We have unknown people who happen to be police officers who tell them ‘We will let you work the street like Lucky if you tell us what you know.’ Judge, it is absolutely irrelevant. I don’t think one more question should be asked about that.
“THE COURT: [to Jackson] She is your witness. What she saw on Locust Street that night you can go into as thoroughly as you want to. All this other stuff is not relevant.”(94)
Fourteen years later, in October 1996, Jones again testified for the defense in Mumia’s Post-Conviction Relief hearing:
“Q. Now getting back to your meeting with the detectives prior to your testifying, do you recall what it was that they said to you about your testimony?
“A. Well, when they came to see me at the jail?
“A. It was just more so that, umm, I was to name Mr. Jamal (indicating) as the shooter, you know. And if I was to do that, I was supposed to do something like this girl named Lucky White. They said we made a deal with her and it was going to work out for her so they could make it work out for me. All they kept expressing was don’t forget five to ten years, that’s a long time. They kept expressing that point. So flashback my kids, that’s all I think about is my kids.”(95)
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 Sabo’s 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:
“THE DEFENDANT: My answer is that I have been told from the duration of this trial, the beginning of the trial, the inception of the trial, that I had a number of constitutional rights. Chiefly among them the right to represent myself. The right to select a jury of my peers. The right to face witnesses and examine them based on information they have given. Those rights were taken from me. It seems the only right that this judge and the members of the court want to confer is my right to take the stand, which is no right at all. I want all of my rights, not some of them. I don’t want it piecemeal, I want my right to represent myself and I want my right to make closing argument. I want my rights in this courtroom because my life is on the line and I don’t want no gift.
“THE COURT: Mr. Jamal—
“THE DEFENDANT: (Interposing) I heard what you said.
“THE COURT: I already ruled on that issue. I ruled on all those issues. You have the perfect right to take the stand and give your version of what happened in the early morning hours of December 9th of 1981.
“THE DEFENDANT: Like I had the perfect right to represent myself in this case.
“THE COURT: If you choose not to let the jury know your version of it you do not have to. That is your own free will.
“THE DEFENDANT: It is no question of free will. You have taken every right I have and you want to save one right. You have taken all my rights and you want to say ‘You can have that right but you can’t have the other four that I said you had.’”(96)
ii. Death Sentence for an Innocent Man
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 Sabo’s revocation of his right to defend himself and to seek John Africa’s assistance. He also criticized Sabo’s decisions limiting evidence and Jackson’s 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 evidence’—knowing that wasn’t so. The jury heard merely what Sabo allowed—nothing 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 Mumia’s participation in the Black Panthers a dozen years earlier had somehow turned him into an “executioner”:
“Q. Mr. Jamal, let me ask you if you can recall saying something sometime ago and perhaps it might ring a bell as to whether or not you are an executioner or endorse such actions. ‘Black brothers and sisters—and organizations—which would not commit themselves before are relating to us black people that they are facing—we are facing the reality that the Black Panther party has been facing which is’—Now, listen to this quote. You’ve often been quoted saying this: ‘Political power grows out of the barrel of a gun.’
“Do you remember saying that, sir?
“A. I remember writing that. That’s a quotation from Mao-Tse-Tung.”(99)
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 Mumia’s 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 don’t like it, we don’t just accept it, and we don’t 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 you’re 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.
iii. Gross Judicial Prejudice
McGill’s attempt to make an issue of Mumia’s 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 defendant’s 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 defendant’s membership in the fascist Aryan Brotherhood in arguing for execution:
“Whatever label is given to the evidence presented…Dawson’s First Amendment rights were violated by the admission of the Aryan Brotherhood evidence…because the evidence proved nothing more than Dawson’s abstract beliefs.”(101)
The Delaware Supreme Court, which had earlier thrown out Dawson’s appeal, had cited Mumia’s case as a precedent:
“The Delaware Supreme Court cited, and adopted verbatim, the Pennsylvania Supreme Court’s 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 Court’s logic, through its ruling in Dawson v. Delaware.”(102)
Another gross impropriety committed by the prosecutor, Joseph McGill, in the penalty phase of Mumia’s 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 it’s 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 Baker’s death sentence, on the grounds that such language ‘minimiz[ed] the jury’s sense of responsibility for a verdict of death.’ The court then reversed this precedent in 1989 by upholding Abu-Jamal’s 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 court’s members, who win their posts through election, have unusually close relations with various police organizations:
“The law enforcement community’s support for some members of the Court is both prominent and extensive: Chief Justice John P. Flaherty has been presented with a Justice Award by the Sheriff’s Association of Pennsylvania; Justice Ralph J. Cappy (who wrote the opinion denying Abu-Jamal a new trial) has been awarded ‘Man of the Year’ by Pennsylvania State Police and ‘Man of the Year’ by Pennsylvania Fraternal Order of Police; Justice Ronald D. Castille has been awarded a ‘Distinguished Public Service Award’ by the Pennsylvania County and State Detectives Association, a ‘Layman Award’ by the Pennsylvania Chiefs of Police Association and ‘Man of the Year’ by Fraternal Order of Police Lodge No. 5 (Philadelphia); Justice Sandra Schultz Newman was honoured by the Police Chiefs Association of Southeastern Pennsylvania for ‘dedicated leadership and outstanding contributions to the community and law enforcement.’
“Were any of the Court’s members to vote to uphold Abu-Jamal’s appeals, these strong affiliations with a highly-influential organization lobbying for Abu-Jamal’s execution raises the probability that they would suffer a severe political backlash from the media and other politicians, thereby jeopardizing their future on the bench.”(105)
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 Mumia’s trial was fair, and that there was overwhelming evidence of his guilt. Castille pointed out that most of the others who sit on Pennsylvania’s 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 FOP’s 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 Court’s own rulings on Abu-Jamal’s 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 Castille’s 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 Mumia’s 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 Examiner’s 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 didn’t 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.”
—quoted in trial testimony, 30 June 1982, pp 12.4-5
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 Mumia’s 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 Hightower’s account of seeing someone fleeing the area immediately after Faulkner was shot and subjected him to a polygraph test. The issue of Hightower’s 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:
“Q. Can you explain to us why, Detective Thomas, as you sit here today, why four prosecution alleged eyewitnesses, all of whom have criminal records, were not given a polygraph examination, but a young accounting student was given a polygraph examination, can you explain that for us in this Courtroom?
“A. No, sir.”
(89) Trial transcript, 28 June 1982, p 10.155-56
(90) Ibid., p 10.166. This is significant as it tends to confirm Arnold Beverly’s 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 Mumia’s 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 Mumia’s right to allocution without cross-examination is cited in the 27 August 2002 appeal to the Pennsylvania Supreme Court as one form in which Sabo’s 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