5. Betrayed by his ‘Defenders’
Mumia has had to contend with more than biased appeals procedures, a corrupt police force and a racist judge. He also had serious problems with his supposed legal defenders. Through much of the 1982 trial, Anthony Jackson appeared to argue hard for Mumia, and he made several attempts to discredit prosecution witnesses during cross-examination. Yet, as previously noted, he missed some critically important contradictions in the prosecution’s case: Michael Scanlan’s testimony that the shooter had an Afro (which would have excluded Mumia) and Cynthia White’s original account of a third man (besides Mumia and his brother) on the scene the night that Faulkner was killed.(109)
However, Jackson’s role in railroading Mumia went far beyond mere incompetence—in the course of the trial he entered into active collaboration with the prosecution. During in camera sessions with judge and prosecutor, Jackson revealed his confidential discussions with Mumia, grossly violating the attorney/client privilege. Sabo and McGill were particularly interested in why Mumia was not participating more actively in the proceedings, and Jackson explained as best he could:
“MR. JACKSON:…if, indeed, Mr. Jamal is saying, as he has to me, that indeed it is his strategy for me not to participate….I would want that on the record; that Mr. Jamal is telling me not to participate, to be silent.” (110)
Jackson had several similar conversations with the prosecution behind the back of the man whose life he was supposedly defending:
“THE COURT: What kind of strategy is that to sit back there and refuse to answer anything? What kind of strategy is that really?
“MR. JACKSON: Judge, I wish I could answer you—
. . .
“THE COURT: Well, what you may have to do, if that’s going to be his strategy, and every witness testifies, you may have to confer with him and then you may have to put on the record that you have conferred with Mr. Jamal—
“MR. JACKSON: Fine.
“THE COURT: —and he has instructed me not to ask any questions.
“MR. JACKSON: Fine.
“THE COURT: Maybe that’s the way. I don’t know.
“MR. JACKSON: Judge, I think—
“THE COURT: I really don’t know. I think it’s bad.
“MR. JACKSON: I do, too, Judge. But I think the Court is doing all it can do and in that way he can’t come back and say, ‘I had ineffective representation,’ when it’s clear that’s what he wants.”(111)
Not only was Jackson eager to help the prosecutor and the hanging judge undercut any possibility of future appeals, he was also the first to suggest ejecting Mumia from his own trial:
“THE COURT: What he’s going to say is he’s arguing that because we didn’t allow John Africa to represent him, therefore, he doesn’t ask any questions and, therefore, the whole proceeding is improper and unconstitutional and everything else. This is what worries me.
. . .
“MR. JACKSON: …let’s assume for the moment he was removed from the courtroom—
“THE COURT: What do you mean assume? He’s been removed. You mean from the courtroom?
“MR. JACKSON: Yes, from the courtroom. Mr. Jamal advises me not to ask any questions because it’s in his best interest not to do that, and let’s assume he’s going to be convicted and goes up to the Supreme Court, or whatever. The question is, number one, did the Court—well, did he knowingly waive his right, and I don’t think it could be any question about it and, number two, did I have any right to violate what he considered to be his best interests and number three, can the Court on its own—and I believe it’s intruding into the area of the defense.”(112)
Jackson also played an active role in an elaborate hoax designed to convince Mumia that the Pennsylvania Supreme Court had upheld Sabo’s ruling depriving him of his constitutional right to defend himself. On the first day of the trial, 17 June 1982, after appointing Jackson as Mumia’s counsel, Sabo suggested several times that his decision could be reviewed by the Pennsylvania Supreme Court. Later that day Jackson appeared before Pennsylvania Supreme Court Justice McDermott to request that he be released as Mumia’s attorney and that John Africa be permitted to assist in his stead. The next day Jackson reported, “I just bring to the Court’s attention that pursuant to Your Honor’s allowance yesterday we did, of course, petition to the [Pennsylvania] Supreme Court. Justice McDermott denied the petition this morning.”(113) Sabo responded to Jackson’s request that John Africa be permitted to sit at the defense table, as follows:
“I don’t want to hear any more about it. As I told you yesterday, I would abide by what the Supreme Court said. The Supreme Court has spoken in this matter. They have affirmed my decisions and there’s nothing to argue any further.” (114)
This was all a ruse. There is no record on the docket of the Pennsylvania Supreme Court or the Court of Common Pleas of any such proceeding in the case of Mumia Abu-Jamal. But in 2001, Mumia’s legal team discovered that, “under Miscellaneous Docket No. 63, an entry was found in the case of Anthony E. Jackson, Esq. vs Albert F. Sabo, Judge of the Court of Common Pleas of Philadelphia, indicating that a petition for writ of prohibition had been filed on 6/17/82 and denied by Justice McDermott on 6/18/82.”(115) Jackson was acting on his own, rather than in Mumia’s name. This means that the proceeding was, legally, of no significance to Mumia whatsoever. Jackson, Sabo, McGill and McDermott were all participating in a charade designed to mislead Mumia into thinking that the Pennsylvania Supreme Court had saddled him with Jackson as his defender. This was spelled out explicitly by Sabo on the second day of the trial:
“THE DEFENDANT: Who is representing me?
“THE COURT: Mr. Jackson.
“THE DEFENDANT: Why is he representing me?
“THE COURT: By order of the Supreme Court.
“THE DEFENDANT: Did the Supreme Court order him to represent me against my wishes?
“THE COURT: No, it’s by the Court’s order.”(116)
This was a blatant lie—there was no such order. Jackson’s collusion with the prosecution, and his role in sabotaging Mumia’s defense, is in itself ample grounds for throwing out the conviction.(117)
In 1991 Leonard Weinglass, who gained a reputation as one of America’s premier leftist lawyers for defending the “Chicago Eight” against conspiracy charges arising from protests at the Democratic Party’s 1968 national convention, agreed to act as Mumia’s lead attorney for the critically important Post-Conviction Relief hearings. Weinglass recruited Daniel Williams, a successful young Ivy League lawyer, to work with him. The legal team also included two attorneys from the Partisan Defense Committee, Rachel Wolkenstein and Jonathan Piper, who had been working pro bono on Mumia’s behalf since 1987.(118)
Piper and Wolkenstein resigned from the defense team in 1999 when Weinglass and Williams refused to pursue important evidence unearthed by the PDC attorneys. Their departure barely caused a ripple among Mumia’s supporters. Two years later, in March 2001, Mumia fired Weinglass and Williams over the latter’s plans to publish Executing Justice, a book on the case that Wolkenstein aptly described as “a brief for the prosecution.”
The dismissal of Weinglass, who has long been identified with the radical left, in particular with the Maoist/anarchist “Refuse and Resist” grouping, shocked many of Mumia’s supporters. According to Williams, Weinglass (who he describes as his “mentor and friend”) particularly admires Clarence Darrow, a lawyer who defended many leftists and labor militants during a long and illustrious career.(119)
Williams, unlike Weinglass, has no connection to the left. Willams rejects “the notion that ideology should, in any way, dictate litigation strategy or tactics in a death penalty case,”(120) and dismisses both “hard-line anti-Mumia forces and the hard-line pro-Mumia forces” as “profoundly ideologically driven.” (121) While piously undertaking to, “remind fair-minded people of how important is an impartial system of justice,” Williams expresses sympathy with right-wingers, “who find themes of ‘law and order’ more compelling than calls for social justice” on the grounds that they, “have their own fears, born of insecurities that their values and hard-earned possessions are threatened by those who have different visions of what is socially and economically possible in America.”(122)
Williams claims to believe in Mumia’s innocence, but at the same time asks, “without a genuinely fair trial where all the evidence is presented and tested, what substance is there to a proclamation of innocence—or of guilt, for that matter?”(123) Instead of calling for Mumia’s immediate release as the innocent victim of a frame-up, Williams advocates giving the racist judicial system a second chance to pin Faulkner’s death on him, and dismisses calls to “Free Mumia” as “anachronistic rhetoric” from “the splintered world of left-wing backbiting.”(124) These anti-communist prejudices are shared by E.L. Doctorow, a well-known novelist who, in a forward to Williams’ book, complains:
“The cause in the name of Mumia’s innocence has attracted organizations from the margins of American politics. Established media derive from this fact the likelihood of his guilt; he is discredited by the people who support him, even as they are discredited by whom they support.”(125)
The “established media” is the property of a numerically insignificant minority of ultra-rich social parasites. It is hardly surprising that their hirelings, whose very careers depend on defending the status quo, seek to discredit those who dare challenge the grotesque inequities of the American judicial system.
Williams considers it, “unfair to dismiss those who seek Mumia’s execution as evil persons who secretly desire the killing of an innocent man.”(126) He thus excludes the possibility that Mumia was deliberately framed up, but does allow that “law enforcement was willing to fabricate evidence to help in the effort to convict a man they believed to be guilty.” At the same time, against all the evidence, he insists that the system is basically fair, and he explicitly rejects the PDC attorneys’ contention “that law enforcement knew Mumia was innocent, knew that the shooter fled the scene, and relished that a conviction and death sentence would be a terrific coup in the city’s war against MOVE.”(127)
Williams argues that calling for a retrial by the same racist judicial system that engineered the original conviction would invest Mumia with:
“the moral authority to insist that those who seek his execution be equally courageous and put their faith in that same crucible of adversarial testing—a crucible we conventionally call a fair trial. Remember: it is the crucible itself, and not what we put in it, that expresses most fully our societal values.”(128)
Williams’ book perversely combines the celebration of American justice in the abstract with multiple concrete examples of judicial bias and manifest injustice. He writes, for example, that every “single objection interposed by the prosecution during the 1995 [PCRA] hearings—and this is no exaggeration, as the transcripts themselves attest—was sustained by the king of death row.”(129) In fact, it is a slight exaggeration, but anyone reading the transcript will see that Sabo was clearly biased in favor of the prosecution.
Williams depicts Mumia as someone tragically flawed by having “always placed his faith in radical politics,”(130) and the belief that “his fight for freedom could never be disconnected from the political movements propelling his cause.”(131) When prison authorities, who were secretly (and illegally) intercepting Mumia’s correspondence with his lawyers, learned that he planned to file his PCRA petition on 5 June 1995, Pennsylvania Governor Tom Ridge (currently U.S. “Homeland Defense” czar) rushed to preempt him by signing his death warrant first. Williams concedes that:
“The governor established the August 17 date so that Judge Sabo could use it as an artificial deadline by which the PCRA proceedings were to be completed; it thus provided a justification for him to create a climate of haste, which heightens the likelihood of mistakes and omissions.”(132)
Less “impartial” people might interpret such an attempt to hobble the defense as a reason to take the fight outside the narrow legal channels controlled by the prosecution, but Williams disapproves of “heated issues or controversies [being] debated through slogans and rallies,”(133) and adamantly opposed any involvement by Mumia’s legal team in the wave of protest that met Ridge’s attempt to murder their client. Had Mumia not had the good sense to ignore Williams’ advice, and encouraged the protests, he might not be alive today.
Williams was surprised by Sabo’s initial denial of a routine stay of execution and concedes that ultimately he granted it only because the, “international pressure for a stay had become intense, with letters, faxes, and phone calls swamping the clerk’s office from all over the world.”(134) Yet, even in hindsight, Williams refuses to admit that the “rigidly ideological” left had read the situation better than he. He complains that Weinglass, the lead attorney, “trusted both Rachel [Wolkenstein] and Mumia, and that trust trumped my legal analysis.”(135) Williams particularly resented the fact that “Rachel had unique access to Mumia, and he understandably put his faith in her.”(136) Williams notes:
“The prosecutors and the judge had a particular dislike of her [Wolkenstein], either because she was the most strident one in the court room or because…[she] was the most ardent leftist on the defense team.”(137)
Williams writes that Wolkenstein and Piper resigned from the defense team in 1999 because Weinglass refused to “make the ‘knowing frame-up of an innocent man’ theory the centerpiece of the litigation strategy.”(138) When Weinglass originally took the case, Wolkenstein had informed them that Arnold Beverly, a professional mob hit-man imprisoned at the Pennsylvania State Correctional Institute in Hunlock Creek, had told her that he was present when Faulkner was shot and that Mumia Abu-Jamal had nothing to do with it. Beverly also informed her that Philadelphia police officers had planned to kill Daniel Faulkner because they considered him a threat to their rake-offs from drugs and prostitution in the Center City area.
According to Wolkenstein, Weinglass responded to the Beverly story in a peculiar manner: “Attorney Weinglass bluntly told me he was not interested in pursuing this information—that it was too hot to handle—and did not want to discuss it further.”(139) The defense could not use the information in court during the PCRA hearings in any case because:
“Arnold Beverly was emphatic that he would never identify the shooter and made it equally clear that he would not testify about anything he knew about the shooting of P.O. Faulkner even if under subpoena.” (140)
Beverly’s information, which fitted with reports by Hightower, Chobert, Kordansky and Jones of a “third man” fleeing the scene,(141) should have been aggressively pursued. According to Williams, police interrogated at least three black males as possible suspects: Cynthia White’s pimp, Kenneth Freeman and Arnold Howard, who had known Mumia since childhood. Howard was questioned because his driver’s license application form (which in Pennsylvania can be used as a temporary permit) was found in the dead cop’s pant pocket. Howard explained that he had loaned the document to Freeman, a close friend and business partner of Billy Cook, who was a passenger in Cook’s car the night Faulkner was killed.
In his deposition, William Cook reported that “Poppi” (Kenneth Freeman) was “wearing his green army jacket,” and was a passenger in his car that night. Cook says that when Faulkner pulled him over he was ordered out of the vehicle while “Poppi stayed in the car in the passenger seat.” Cook states that he and Faulkner argued briefly before Faulkner began beating him with his flashlight, and then ordered him to produce his paperwork. Cook, who describes himself as “not the organized type” who “didn’t keep papers in the glove compartment,” was “looking for something in the back seat to give the cop like an owner’s card” when he “heard the first shot.”(142)
“When I was looking in the back seat Poppi [i.e., Freeman] was still there and then I looked and Poppi’s door was open. He had been in the passenger seat and I don’t know which way he had gone. He left the area right after this happened.”
Cook also states:
“Later Poppi talked about a plan to kill Faulkner. He told me that he was armed on that night and participated in the shooting. He was connected and knew all kinds of people. I used to ask him about it but he talked but never said much. He wasn’t a talker. I didn’t see Poppi for a while after that.”(143)
In pursuing information about a “third man” who fled the scene, Jonathan Piper of the PDC “carried out a detailed review of the police radio tapes” and established that “contemporaneous police radio ‘flashes’ reported without contradiction that the suspect(s) had fled the scene with Officer Faulkner’s gun.”(144) Several witnesses, including Michael Scanlan, Stake Out officer James Forbes and officer Stephen Trombetta, mentioned seeing a man in a green army jacket at the scene.(145)
William Singletary, a 31 year-old Vietnam veteran who was managing his family’s gas station nearby, told police that “a black male passenger wearing a green army coat got out of William Cook’s Volkswagen, shot Faulkner, and fled the scene.”(146) There were inconsistencies in Singletary’s account: he stated that Faulkner shot Mumia after having himself been shot in the head by the “third man”—which seems highly unlikely, as the fatal bullet killed Faulkner almost instantly. Singletary also testified that he heard Faulkner talking after he had been shot between the eyes, which would have been physically impossible. Finally, Singletary reported seeing a helicopter overhead shining a bright light down on the scene, which no other witness mentioned.(147) Yet in this case no two witnesses told exactly the same story, and there were huge discrepancies and improbabilities in the testimony of the prosecution witnesses. Singletary’s testimony that Faulkner was shot by a passenger wearing a green army coat who got out of Cook’s vehicle (i.e., Freeman) is particularly significant.
When Weinglass called Singletary to the stand, he introduced him with a disclaimer that the defense considered Singletary’s recollection to be inaccurate on some points. But most of Singletary’s account is quite plausible, including his claim that police interrogators at the Philadelphia police headquarters (known as the “Roundhouse”) ripped up his first statement because they did not like what it said. He also reported that a Detective Green “told me I wouldn’t leave, that they would take me to the elevator and beat me up and that my business would be destroyed.”(148) Even after he signed a false statement that he had seen nothing of importance the night Faulkner was killed, Singletary suffered so much police harassment at his gas station that he closed shop and left town a few months later.(149)
Williams, who dismisses Singletary’s story as “so far beyond the pale, no judge would believe it,”(150) does admit that it is odd that “investigators generated a highly detailed report regarding William Singletary (the man who graphically described police coercion) solely to establish that he saw nothing” and suggests that it, “smacked of a defensive maneuver by law enforcement against the eventuality that Singletary would someday testify.”(151)
In March 1999, in conversation with Rachel Wolkenstein, Arnold Beverly went far beyond his earlier information and admitted that he had fired the fatal bullet that killed Faulkner. This admission constitutes the single most important proof of Mumia’s innocence. It answers the question of why Faulkner was killed, something the prosecution was never able to plausibly explain. McGill’s attempt to link the hit on Faulkner to Mumia’s membership in the Black Panther Party twelve years earlier was obviously absurd. But Arnold Beverly had a very clear motive:
“I was hired, along with another guy, and paid to shoot and kill Faulkner. I had heard that Faulkner was a problem for the mob and corrupt policemen because he interfered with the graft and payoffs made to allow illegal activity including prostitution, gambling, drugs without prosecution in the center city area.”(152)
Beverly’s confession brought the developing tensions in the legal team to a head. Weinglass and Williams flatly refused to introduce it. This seems a most peculiar response for an experienced attorney in such a high-profile case, and raises questions as to whether this was because the FOP, or some other sinister force, was exerting pressure.
Williams says he “made it clear to Len that I would not participate in what I regarded as an assisted suicide”(153) if the Beverly confession were introduced, and claims, “I don’t know Len’s analysis of the situation, but he ended up with the same conclusion: if Mumia wanted the witness, he’d have to get another lawyer to present him.”(154) It is hard to believe that, after working together on the case for years, Williams, the self-styled “chief legal strategist,” and Weinglass, the lead attorney, would not have discussed such a dramatic development. It is all the more incredible because they were in agreement about how to proceed, and in the midst of a bitter dispute with the two other attorneys involved.(155) What possible reason could they have had for not discussing it?
It seems far more likely that Williams and Weinglass did in fact discuss the Beverly evidence, but were unable to come up with a plausible rationale for ignoring it. In any case, they were careful to put nothing in writing. The legal team that took over the case revealed that the PDC attorneys had written numerous memos arguing strenuously in favor of introducing Beverly’s confession:
“Cross Appellant Jamal’s present attorneys have not discovered in the files of his former counsel any memorandum by attorney Weinglass or attorney Williams responding to or disagreeing with these memoranda, or setting forth any reasons to believe that Arnold Beverly is not a credible witness or that his confession in declaration form is false. Indeed, quite the opposite.”(156)
They drew the obvious conclusion from this:
“These memoranda prove that, at the very time when attorney Weinglass and attorney Williams were giving Cross-Appellant Jamal an ultimatum that they would resign from his legal team if Arnold Beverly’s confession was presented to the court, attorney Weinglass and attorney Williams knew that, with Arnold Beverly’s testimony, they could prove that the Petitioner was innocent and did not shoot Police Officer Faulkner. These memoranda therefore prove attorney Weinglass and attorney Williams’ conflict of interest. For, in the light of these memoranda, there can be, for them, no innocent explanation for why Arnold Beverly’s confession was not presented to the court in June 1999. These memoranda prove that, when attorney Weinglass and attorney Williams told Cross-Appellant Jamal that using Arnold Beverly’s confession would damage his case, they were being dishonest.”(157)
Weinglass and Williams could find no holes in Beverly’s story, yet insisted that it was not credible.(158) Williams disingenuously claimed to have rejected the Beverly confession to protect Mumia “against his own tendency to destroy himself…” and added, “I have to admit, I also wasn’t about to embarrass myself by running with such a patently outrageous story.” (159) It is well known that corruption was widespread in the Philadelphia police,(160) so it hardly seems “patently outrageous” to suggest that some of those involved might be prepared to eliminate someone who got in their way. As Wolkenstein pointed out:
“Bertram Schlein, a witness who testified against Central Division chief John DeBenedetto, was murdered in 1983. A former police officer and reported associate of Giordano, Kenneth Schwartz, was reportedly a suspect in Schlein’s death. During the prosecution of ‘Five Squad’ narcotics officers for corruption in the 1980-84 time period, a federal prosecutor alleged that Philadelphia police officers had plotted to kill a witness in a federal tax-evasion case against an officer. In that same prosecution, a witness testified that he feared for his life after he was told that a ‘Five Squad’ officer who was cooperating with the FBI had been killed in his home. Other police officers were killed in the early 1980s under circumstances suggesting assassination. The last Philadelphia officer to have been killed before P.O. Faulkner was James Mason, who was shot by a sniper in May 1981. The next officer to be murdered after Daniel Faulkner was Thomas Trench, who was shot at close range in his police car with the window open in May 1985, likely by someone he knew.”(161)
Even Philadelphia’s black Democratic mayor, Wilson Goode, was afraid of the city’s cops. On 6 November 1985 Goode testified before a commission investigating the horrific incineration of eleven people (including five children) in a police assault on a MOVE house six months earlier. Although he was personally responsible for approving the murderous attack, Goode dared not appear on the scene for fear that he might get fragged by one of Philadelphia’s “finest”:
“COMMISSIONER AUDREY BRONSON: I understand that you felt that your life would have been at risk—by whom?
“GOODE: Well, I have received a lot of information that simply people said to me, and I will share this candid discussion with you, that I should be careful of, first of all, of people who were MOVE sympathizers in the neighborhood, that with shots going on out there a shot could easily go awry and hit me, that I should be—I should be—beware of even the potential for even police shots to go awry on the scene and, therefore, there have been, as I was told, instances of the fact that commanders in the Army have, in fact, been mistakenly shot and I should be aware of those kinds of things and the people who talked with me simply persuaded me that, in fact, it would be a risk for me to be in the area.”(162)
It is well known that in the early 1980s the FBI was actively investigating police corruption in Philadelphia.(163) Faulkner’s Center City beat covered many of the after-hours clubs and gay bars forced to pay off the Central Division police. Mumia’s defense team has sought to introduce the affidavit of Donald Hersing,(164) the operator of several “houses of prostitution,” as well as an after-hours club in Center City, who, as an FBI “confidential source of information,” helped document police corruption. Hersing reported that:
“individual street prostitutes [like Cynthia White and Veronica Jones] were also run and controlled by the police who demanded money, sexual favors and information from them in order for them to continue to work the streets with less frequent arrests.”(165)
Wolkenstein notes that Hersing’s list of corrupt cops included:
“James Carlini, head of Homicide; John DeBenedetto, head of the Central Division in which P.O. Faulkner worked; as well as Inspector Alfonzo Giordano, the senior officer at the scene after the shooting. DeBenedetto and other Central Division police officers were convicted in 1983; James Carlini was named in the federal indictment as an unindicted co-conspirator.”(166)
These men had plenty to hide and good reason to think they could get away with murder. Carlini, as head of Homicide, was in a position to deform the entire investigation in order to shield the real culprits by pinning the killing on someone else. DeBenedetto, who headed Faulkner’s division, had control of his schedule, and could have ensured that he ended up at 13th and Locust at a particular time without his bullet-proof vest. Hersing reports: “officers who were receiving payoffs expressed concern about possible FBI wiretaps and surveillance regarding their activities.”(167) If Faulkner, an ambitious young cop with a reputation as something of a straight arrow, was not working with the FBI, he may at least have given his fellow officers the impression that he was. What is certain is that George Sherwood, an FBI agent involved in the Center City investigation, subpoenaed Faulkner’s army records. Wolkenstein states:
“Former FBI agents, then working as investigators on the case, advised me that the most plausible explanation for this was that Faulkner was an informant, confidential source or an investigation target.”(168)
Wolkenstein also points out that it is significant that Faulkner had an expensive camera of the sort the FBI routinely used in this period in his patrol car the night he was killed:
“The case record also disclosed that P.O. Faulkner owned a ‘Topcon’ camera and used it the night he was killed to photograph at least officer Gary Wakshul in the precinct ‘lock-key area.’ Homicide Detective William Thomas had this camera in his possession when he questioned Wakshul and others about the camera. I later learned this was a very expensive camera model which was often used by the FBI during that period. Inexplicably, there is no information as to where the camera was found since there are no property receipts or records of the camera or any film contained in the camera.”(169)
If Faulkner was indeed acting as an FBI informant when he was assassinated, the Bureau may have been reluctant to actively pursue the case in order to safeguard the identities of other assets. Alternatively, they may have wanted to save face by not admitting that Faulkner was working for them. In any case, the FBI was probably happy to see the shooting pinned on a political dissident they had been targeting for years. The parallels between Mumia’s case and the frame-up of Sacco and Vanzetti or, more recently, Geronimo Pratt are striking.(170)
In his confession, Beverly says that he was told Faulkner would be sent “to check something at Johnny Ds (at 13th and Locust) sometime in the early morning hours of December 9.”(171) The prosecution maintained that Faulkner pulled over Billy Cook’s car that night for a routine traffic stop, but this doesn’t explain why the officer would have called for a paddy wagon before getting out of his car, an action that indicates that he anticipated making an arrest.(172) If Faulkner had been sent to that particular corner and advised to look out for Cook’s Volkswagen, it would explain why he had expected to be taking the driver into custody.
At Mumia’s trial, Michael Scanlan mentioned seeing two men standing on the northwest corner of 13th and Locust when Faulkner was shot.(173) Wolkenstein reports that “in late 1996, another eyewitness named Marcus Cannon came forward with the information that he saw two white men who appeared to be undercover police officers present on the scene during P.O. Faulkner’s shooting.”(174) This parallels Beverly’s observation that “Two undercover policemen were standing on the west side of 13th St., north of Locust.” Beverly also noted that “a uniformed police officer was sitting in a car in the corner of the parking lot,” and further:
“They were there while the shooting of Faulkner took place. I was not worried about the police being there since I believed that since I was hired by the mob to shoot and kill Faulkner, any police officers on the scene would be there to help me.”
Beverly saw more cops arriving as he fled the crime scene:
“Cop cars came from all directions. Foot patrol also arrived. I saw a white shirt [i.e., a police supervisor] getting out of the car in the middle of the 13th and Locust intersection just as I was going down the speedline [Philadelphia’s subway system] steps.”(175)
A number of other witnesses also reported heavy police presence in the vicinity immediately after the shooting.(176) Singletary noted “that police officers including ‘white shirts’ (i.e., police supervisors) were at the scene immediately after the shooting.”(177)
One unexplained element in Beverly’s testimony is his statement that before he shot Faulkner, he felt a bullet graze his left shoulder.(178) Wolkenstein suggests that Beverly’s wound may explain:
“the presence of type O blood at the scene according to the criminalist’s report. This pointed to the presence of another person at the scene because Mr. Jamal and Mr. Cook, as well as P.O. Faulkner (based on the Faulkner autopsy report and criminalistics report) all had type A blood.” (179)
It is unclear whether Beverly was wounded by a stray shot from his unidentified co-conspirator (possibly Kenneth Freeman) or by a trigger-happy cop or a mobster. Perhaps Beverly was supposed to be the fall guy, but got lucky, and Mumia ended up getting shot instead. In any case, although bleeding, Beverly says he finished the hit:
“I ran across Locust Street and stood over Faulkner, who had fallen backwards on the sidewalk. I shot Faulkner in the face at close range. Jamal was shot shortly after that by a uniformed police officer who arrived on the scene.”(180)
Beverly’s story squares with Mumia’s account of being shot by “a uniformed cop…gun in hand” as he ran across the street toward his brother.(181) It also fits with Billy Cook’s recollection:
“When I first saw my brother, he was running. He was feet away from me….He had nothing in his hands. I heard a shot and I saw him stumble. I didn’t see who shot him. He was stumbling forward.”(182)
An early indication of the problems in how Weinglass and Williams were handling Mumia’s case was their refusal to call Billy Cook at the 1995 PCRA hearings. Cook had been scheduled to appear, but during the proceedings Weinglass announced he was not available. According to Williams:
“Billy Cook, unfortunately, remained in hiding. The word we received was that he was afraid that he would be killed by the police if he surfaced to help his brother. As far as I know, we never tried to convince him otherwise.”(183)
In rejecting the 1995 appeal, Sabo drew an “adverse inference” from Cook’s failure to appear, i.e., he presumed that Cook’s testimony would have hurt Mumia. Yet Cook says he was ready to take the stand: “I was expecting to testify. Leonard and Rachel were giving me cross signals. Rachel wanted me to testify but Leonard didn’t. So I didn’t testify.”(184) Wolkenstein confirms Cook’s account:
“Attorney Weinglass advised me and represented to the court that Mr. Cook was unavailable because he was fearful of being arrested on outstanding bench warrants if he appeared to testify. This was inconsistent with my own impressions of Cook and his willingness to be a witness….[I]t was my impression that attorney Weinglass did not want to call William Cook as a witness.”(185)
When George Michael Newman, a highly regarded private investigator hired by Weinglass suggested interviewing Billy Cook in preparation for the 1995 PCRA hearing, he was told that Cook “had been interviewed and Weinglass was in communication with him and did not want me talking to him.”(186) At the PCRA hearing, Newman thought Cook “was to testify, and was under subpoena” but Weinglass informed him that Cook had “disappeared.” When Newman offered “to try and find Cook,” Weinglass told him not to bother.(187)
Weinglass also strongly advised Mumia not to testify.(188) Mumia thus lost an important opportunity to proclaim his innocence. Then, at one point during the PCRA hearings, Weinglass suggested that Mumia was entitled to the protection of “the Fifth Amendment”—i.e., the right to avoid self-incrimination.(189) Some observers have interpreted this as indicating that Mumia may have been involved in Faulkner’s killing. The FOP has repeatedly suggested that the failure of Mumia and his brother to testify constitutes an implicit admission of guilt.
The most spectacular evidence of deliberate sabotage by Weinglass and Williams is that in questioning Robert Chobert at the PCRA hearing, they did not raise his stunning admission to Newman that he had not actually seen the shooting!(190) The prosecution had dishonestly presented Chobert to the jury as someone (unlike Cynthia White, their other “eyewitness”) who had no reason to lie, when in fact the police had substantial leverage on him as discussed above.(191) His testimony was therefore critical to securing the conviction, and his recantation would have completely destroyed the prosecution’s case. Had Weinglass not chosen to put Chobert on the stand, it could have been seen as a matter of legal tactics, i.e., a calculation that Chobert’s testimony might have given the prosecution a chance to open up issues the defense would prefer to avoid. But Weinglass did call Chobert to testify, and explored a few secondary issues regarding his driver’s license, while failing to aggressively pursue his startling admission to Newman. Had Chobert tried to retract or deny his confession while on the stand, this would have posed the question of their relative credibility. Chobert is a convicted felon with a long history of infractions, while Newman is highly regarded in the “law enforcement community” and has an extensive list of professional accomplishments and awards.(192)
The refusal to introduce Chobert’s admission that he had lied at Mumia’s 1982 trial proves that Weinglass and Williams were acting against their client’s interests long before they sought to bury Beverly’s 1999 confession. There can be no innocent explanation for this: it can only be a deliberate and conscious attempt to sabotage their client’s defense. Williams’ book is thus but a link in a chain of betrayals.
It is not clear why the PDC attorneys who, as part of the defense team, presumably had access to Newman’s information, did not appreciate the significance of Weinglass’ failure to raise Chobert’s recantation. Perhaps amid the complicated and rapidly developing political/legal situation at the time, they simply overlooked it. It is also possible that they, like other leftists, were initially unable to imagine that Weinglass was capable of intentionally sabotaging his client’s defense. In any case, Wolkenstein and Piper were manifestly not party to the machinations of Weinglass and Williams against Mumia—they unearthed much of the evidence that proves Mumia’s innocence. If, in 1995, the PDC did draw the obvious conclusion from Weinglass/Williams’ refusal to expose Chobert’s perjury, they have not discussed it publicly to our knowledge.(193)
Wolkenstein’s affidavit explains why she and Piper resigned from the defense team in July 1999:
“Weinglass as lead counsel deceived Jamal about the legal significance of the Beverly confession and was adamant in refusing to file a supplemental post-conviction petition based on the sworn statements of Arnold Beverly and William Cook….With the final realization that, no matter what the evidence, lead counsel Weinglass would preclude the necessary steps from being taken to provide a defense for an innocent man and fight to overturn Jamal’s unjust conviction, it was no longer possible for me to function ethically on his legal team.”(194)
On Monday, 5 March 2001, Jamal petitioned to dismiss Williams and Weinglass because on “Sat., 2/24/01 [24 February 2001] via Fed Ex, petitioner learned…that Mr. Williams was in the late processes of publishing a book on the instant case, purported to be an ‘inside account.’”(195) Weinglass’ claim to have seen Williams’ text for the first time only four days earlier, on 20 February 2001,(196) is not particularly credible, nor is his criticism of his co-counsel for not showing the manuscript to Mumia or himself before sending it to the publisher. Weinglass accurately described the book as a “pre-emptive strike” against “the witness that we blocked from coming forward” (i.e., Arnold Beverly),(197) while offering his “professional assessment” that Williams’ tome had done no legal damage to Mumia’s case. But the DA’s office reached a different conclusion—they found Williams’ book very useful, particularly the lie that Mumia had been fully informed and was cognizant of the significance and implications of Beverly’s confession. Williams’ account has provided the legal pretext for the courts to refuse to admit the dramatic evidence of Mumia’s innocence from being introduced in the appeals process.
One of the big questions in all of this is why Weinglass and Williams, who Mumia trusted with his life, would treat him so badly. This is not so puzzling in the case of Williams, a dubious character who apparently decided to cash in on his involvement in the most celebrated political case in a generation.(198) But the motivations of Leonard Weinglass are less obvious. Rachel Wolkenstein has suggested that a major factor was fear:
“I am aware of certain facts which may help explain why Attorney Weinglass would act in such gross disregard for the best interests of his client. Attorney Weinglass reported to me prior to submission of the post-conviction petition that he was physically threatened by Ronald Freeman, the brother of Kenneth [‘Poppy’] Freeman, the man Cook has now sworn was involved in the shooting of P.O. Faulkner. Some time prior to the filing of the post-conviction petition in 1995, Attorney Weinglass received a threatening telephone call from Ronald Freeman, who was then reportedly in prison. According to Attorney Weinglass, Ronald Freeman called him from the warden’s office at the prison and said that if Weinglass dared to name Kenneth Freeman as the shooter, he, Weinglass, would be in physical danger. Attorney Weinglass said that he was upset and frightened by this phone call, particularly because the call came from the warden’s office, suggesting collusion between state actors to interfere with the investigation and intimidate the defense team. During and after the post-conviction hearing, a private investigator hired by Attorney Weinglass to interview current and former Philadelphia police officers also reported hearing of threats that police would ‘take care of’ the defense team. In light of these threats, Attorney Weinglass may well have been in fear of the consequences that could result—including risk to his life and safety—if he conducted a thorough investigation of the real facts of P.O. Faulkner’s death and presented that evidence in court.”(199)
Given that killing people to shut them up was the modus operandi of those who organized Faulkner’s killing, Weinglass may have had good reason to take such threats seriously, but this hardly justifies betraying his client.(200)
(117) Mumia was entitled to an automatic appeal of his conviction. But his attorney, Marilyn Gelb, who was Jackson’s employer and mentor, failed to raise any significant issues, and admitted that she had not read the entire trial transcript. In a May 1995 affidavit (reprinted in Weinglass, p 207), Steven Hawkins, a lawyer with the NAACP Legal Defense and Educational Fund, observed that Gelb, “failed to engage in any type of independent assessment of issues to be raised on appeal” and concluded that her performance was clearly “deficient.”
(118) Weinglass, by contrast, was paid $50,000 for agreeing to take the case, and was promised that more money would be raised. In the end, he received nearly half a million dollars. The lawyers who took the case after Mumia fired Weinglass in 2001 (Nick Brown, Marlene Kamish, Eliot Lee Grossman and J. Michael Farrell) devoted many thousands of hours to the case, but were, like the PDC lawyers, never paid a penny for their efforts.
(119) Clarence Darrow (1857-1938) initially came to national prominence for his defense of Eugene Debs against conspiracy charges laid over the 1894 Pullman rail strike. He also defended “Big Bill” Haywood of the Industrial Workers of the World. Darrow’s most famous case was the 1925 trial of John T. Scopes, a Tennessee teacher charged with teaching Darwin’s theory of evolution.
In his book, Williams remarks that: “Len [Weinglass] regarded Mumia’s case to be his Leopold and Loeb moment—a fitting capstone to his own devotion to the legal profession” (p 212). This is a peculiar comment as the Leopold and Loeb case was heard before the celebrated “Scopes Monkey Trial.” Darrow defended Loeb and Leopold because of his opposition to the death penalty despite knowing in advance that they were guilty. (Darrow discussed the case and his motivations at length in his autobiography, The Story of My Life.)
Darrow was a very different sort of lawyer than Williams and Weinglass. Rather than sacrifice his client to advance his career, Darrow did everything he could to level the tilted playing field of capitalist justice.
“So I say this to Your Honor: One of the first lessons I ever learned as a lawyer from Mr. Weinglass, my mentor, was that every case is a test of the integrity of the system. And this case also is a test of that integrity. And you, Your Honor, sitting on that bench, you are a guardian of that integrity. And so I’m asking the Court to perform that function as the guardian of the integrity of this criminal justice system.”
(137) Ibid., p 246. We have been critical of the SL/PDC’s somewhat erratic record regarding united-front activities in defense of Mumia. The SL has tended to put its energies into smaller, but more easily controlled, events and been reluctant to participate in more broadly based mobilizations with other left groups (most of which would not have been particularly enthusiastic about working with the SL in any case). We have had several exchanges on this issue, including “Poison Pen Pals,” (Workers Vanguard, 25 August 1995), “For United-Front Defense of Mumia Abu-Jamal!” (1917 No. 17, 1996) and “Disagreeable Sectarians” (1917 No. 21, 1999).
We have always credited the SL for its early initiatives in Mumia’s defense and for vigorously opposing attempts by liberals and reformist leftists to change the political axis of the campaign from a fight to free Mumia to one of re-trying him. However, prior to the revelations surrounding the dismissal of Williams and Weinglass, we had been unaware of the full dimensions of the SL/PDC’s work, and in particular their role in unearthing proof of Mumia’s innocence. In doing this, the SL/PDC performed an immensely valuable service to Mumia and the whole workers’ movement.
(141) A fifth witness, Marcus Cannon, is also reported to have seen someone fleeing the scene after the shooting. At the 30 June 1997 PCRA hearing (pp 123-125) the defense attempted to call Cannon to testify. Weinglass described Cannon as a regularly employed worker with no criminal record with “very critical testimony”:
“He has testimony that he was in Whispers on December 9th, 1981—that is a club at the corner of 13th and Locust—and upon leaving that club and walking north on 13th Street from the corner of Locust and, Locust and 13th, he passed two men, white men, one who appeared to be like a bum, sitting near Whispers on the side, on the store side, another one a little bit further down, also white, just leaning along the side. And as Mr. Cannon proceeded north on 13th Street he heard shots, he saw a flash of light, he turned and looked back towards 13th and Locust Street. And as he turned back he saw a black male fleeing very fast east on Locust Street, away from 13th and Locust Street.
“And as he continued turning he saw these two men, white men appear, suddenly stand up, look erect and pull out weapons and proceed very quickly to the corner of 13th and Locust Street.
“He was frightened, he was scared, having seen this, having seen virtually a transformation of a man who appears to be a, who appeared to be a bum, suddenly turn around there, taking an aggressive stance with weapons out. And he immediately turned and continued up, up 13th Street towards Walnut.”
Sabo immediately granted a prosecution request to bar Cannon’s testimony on the grounds that it had not been offered earlier in the proceedings.
(143) Ibid., points 24, 25. Kenneth Freeman was killed on 13 May 1985, the same day police incinerated the MOVE compound on Osage Avenue, killing John Africa and ten others, including five children. Williams (p 294) reports:
“Freeman died under highly mysterious circumstances. He had been brought to a hospital in a police vehicle, gagged, bound, and naked. The death certificate indicated he had died of a heart attack. He was thirty-one with no history of heart problems.”
Freeman’s friends, including Arnold Howard, believed he was murdered by being forcibly injected with an overdose of heroin. Howard said that he had his hands tested for gunshot residue and that he and Freeman were put into a lineup. Howard also reported that Freeman told him he “kept getting picked out” of a police lineup by an “African American” woman (PCRA, 9 August 1995, p 19). Howard had identified this woman to Weinglass as Cynthia White, yet neither Weinglass nor Williams sought to elicit this testimony from Howard when he was on the stand at the 1995 PCRA hearing. Nor did they ask him to testify that Freeman’s hands had also been tested for gunshot residue (see the July 2001 “Petition for Post-Conviction Relief and/or Writ of Habeas Corpus,” pts. 15, 354, 396 and 518).
(146) Ibid., point 4. Singletary, according to Leonard Weinglass, stated “he was with Cynthia White on the night of the occurrence” (PCRA 11 August 1995, p 10). When he testified on 11 August 1995, Singletary reported that Cynthia White was “gone far down the street” when Billy Cook’s Volkswagen arrived at 13th and Locust (PCRA, 11 August 1995, p 301). Given the importance of White to the prosecution’s case, it is easy to see why they might view Singletary as a potentially hostile witness, for he put White in a spot where she could not have seen what she claimed.
(148) Ibid., p 212. From 24-27 April 1977 the Philadelphia Inquirer ran a series of four articles entitled “The Homicide Files” on “illegal interrogations” conducted by detectives at the Roundhouse which described techniques they employed in beating suspects. In the 24 April 1977 report, the Inquirer observed:
“The interviews—including some with detectives who frequently have been accused of beatings—make it clear that top officials in the police department know of and tolerate the coercive measures.”
The concluding article in the series noted that:
“no matter how serious a detective’s offense might be—breaking a man’s rib, beating a man until he urinates blood, or forcing an innocent man to sign a ‘confession’ and thereby allowing the true murderer go free—the detective has always been safe.”
(149) In his testimony at the 11 August 1995 PCRA hearing (pp 223-24) Singletary reported that the glass windows of his station were repeatedly broken, his tow truck was being regularly stopped by police and his driver harassed. He also stated that prior to 9 December 1981 he had had no trouble with police.
(154) Ibid. Williams suggests that “Len was visibly distressed” when Rachel announced that Beverly was prepared to testify and that he “sought out ways to push this witness [Beverly] onto the trash heap.” In her affidavit, Wolkenstein confirms this. She notes that Weinglass was “adamant and would not engage in rational discussion of how Beverly’s account squared with any of the supporting evidence” [point 47].
In point 20 of her affidavit Wolkenstein reports that while Weinglass refused to allocate resources to investigate the personal involvement of some of key police witnesses in corrupt practices, he floated the outline of Beverly’s story publicly:
“Despite his veto against continuing investigation, in early October 1995 Attorney Weinglass announced at a large public meeting in San Francisco that there were rumors that Officer Faulkner was an FBI informant and had been set up to be killed by fellow officers. Since Attorney Weinglass presented this information publicly without the slightest intention of pursuing it through investigation or seriously presenting it in court, he and I had a sharp argument. At the conclusion, Attorney Weinglass finally agreed to undertake some of the investigation I proposed and provide the funds for the investigators. However, Attorney Weinglass still would not agree to investigate Beverly’s account.”
“Unlike most other trial lawyers with whom I’ve worked, Len is unafraid to express doubts and fears about litigation tactics. He thinks aloud, willingly exposing himself to rejection and judgment….”
“Upon hearing of Beverly’s confession, Attorney Weinglass insisted that Beverly be immediately subjected to a polygraph examination, but he chose an examiner, Earl Rawlings, who was not qualified and who performed an incompetent examination. Even that examiner concluded that Beverly was being truthful when he said that he was present at the scene of the shooting and that Mr. Jamal was not the shooter. Subsequently I had Beverly examined by expert polygrapher Charles Honts, whom Attorney Weinglass had flown in during the 1995 post-conviction hearing.”
Honts’ report on his findings, dated 21 May 1999, stated: “Mr. Beverly was being truthful when he answered ‘No’ to the question: Did Mumia Abu-Jamal shoot Officer Daniel Faulkner?”
(21 July 2000) reported:
“In 1989 the [Philadelphia police] department was shaken by the revelations of the ‘Five Squad’ trial, in which six narcotics detectives were convicted of stealing drugs and extorting more than $400,000 from coke dealers in the early ’80s.”
Amnesty International’s February 2000 report noted:
“Both before and since that time , numerous instances have come to light of police brutality and the use of disproportionate force with lethal consequences; of the corruption of police officers and the fabrication of evidence against those suspected of criminal acts.”
The report cites the following:
“For example, in 1995, six Philadelphia police officers pleaded guilty to charges of planting illegal drugs on suspects, the theft of more than $100,000 and the falsification of reports. The investigations into the officers actions have led to the release of hundreds of defendants whose convictions were overturned by the appeal courts. Also in 1995, two other officers from Philadelphia received prison sentences of five to 10 years for framing young men. Since 1993, the city of Philadelphia has paid out approximately $27 million in more than 230 lawsuits alleging police misconduct.”
(163) During a 15 October 1985 session of the commission investigating the MOVE massacre, Neil Welch, former head of the FBI’s Philadelphia office, noted offhandedly that the Philadelphia police department “has been or would have been under almost continuous federal investigation” for some time. According to Nagel (p 16) these investigations “were not only for corruption, but for brutality and civil rights violations.”
(170) “From Sacco and Vanzetti to Mumia Abu-Jamal: Is Innocence Irrelevant?”, by Eliot Lee Grossman, see Appendix No. 12. For an account of the frame-up of Geronimo Pratt see Agents of Repression: The FBI’s Secret Wars Against the Black Panther Party and the American Indian Movement, by Ward Churchill and Jim Vander Wall, (Boston: South End Press, 1990), pp 77-94
(179) Wolkenstein affidavit, point 46, see Appendix No. 9. If DNA in the type O blood found on items at the scene were to match that of Arnold Beverly, it would blow the prosecution case sky high. This may explain why the DA, the state as well as the federal judiciary, are anxious to prevent Beverly from having a chance to appear in court.
“THE DEFENDANT: I am following the advice of Counsel.
“THE COURT: I know that. But all I want to know is following the advice of Counsel, do you wish to the take the stand or do you not wish to take the stand? It is a simple question.”
. . .
“THE DEFENDANT: On the advice of Counsel my wish is not really relevant. I am following the advice of Counsel.
“THE COURT: Well, then I take it that you are following the advice of Counsel and based on that advice you do not intend to take the stand?
“THE DEFENDANT: On the advice of Counsel.
“THE COURT: Yes. But you’re making that decision yourself?
“THE DEFENDANT: On the advice of Counsel.
“THE COURT: Okay. Now you are mincing words with me. But I am not going to worry about that too much.”
(192) Newman, a former President of the California Institute for Professional Investigators, was featured as one of “The top detectives in America” in a November 1999 segment of “48 Hours,” a popular television program.
(198) For all Williams’ pompous invocations of morality and his professions of respect for the magnificent institutions of the American legal system, he had no qualms about advancing his own career with a nefarious book that undermined the position of his client. This constitutes a gross violation of legal ethics, as Mumia’s lawyers pointed out in their 11 March 2002 submission to the U.S. Third Circuit Appeals Court:
“Chief Legal Strategist Daniel Williams [is] in flagrant violation of Rule 1.8 of the Pennsylvania Rules of Professional Conduct, and the Local Rules of the U.S. District Court for the Eastern District of Pennsylvania, which bar an attorney from negotiating or entering into a contract to publish a book about a case in which the attorney is representing a party during the time of that representation. The Official Comment to that rule explains that its purpose is to protect the client from the per se conflict of interest which would result from that situation since what might make the book sell might not be in the best interests of the client.”
It is hard not to see a connection between the willingness of the authorities to overlook Williams’ infraction and the use of the book by prosecutors as evidence against admitting Beverly’s confession.
“Weinglass, in our earliest contacts, advised me he had been threatened by Freeman’s relative(s). Weinglass stated that he did not want me contacting people to ask about Freeman as a result of the alleged threat, and indicated he was made fearful by the threat. In spite of the fact that I routinely advised that Freeman be actively investigated respecting his potential role in the death of Officer Faulkner, Weinglass maintained that the threat he had received posed a risk he was unwilling to take.”
“5. Attorney Weinglass and attorney Williams were unwilling to endanger their own lives and safety by pursuing a defense of Petitioner Jamal that might threaten to unmask the powerful and ruthless people who planned Officer Faulkner’s murder. They were unwilling to risk the potential harm to their professional reputations and careers that might ensue from the campaign of calumny and ‘disinformation’ that might be unleashed against them by those whose interests lay in making the frame-up of Mumia Abu-Jamal stick. The long and the short of it is that attorney Weinglass and attorney Williams consistently put their own personal interests ahead of the interests of their client, Petitioner Jamal, and violated their duty of loyalty to him in so doing.”