[Ppnews] Mumia's Best (and Last) Chance for a New Trail: A Legal Update

Political Prisoner News ppnews at freedomarchives.org
Mon Nov 27 08:38:17 EST 2006

Mumia Abu-Jamal's battle in court heats up as case is now on fast
track with public hearings set to begin
by Hans Bennett

"Our objective is to win a new and fair trial in this case. At the
conclusion of the retrial I want my client to walk out of the
courtroom a free person."

On October 23, attorney Robert R. Bryan (attorney for death-row
prisoner Mumia Abu-Jamal) filed the 4th Step Reply Brief with the U.S.
Court of Appeals for the Third Circuit, Philadelphia. Because this
should be the last round of reply briefs, Bryan estimated that the
public hearing of arguments would begin within three months. After the
hearing, the panel of judges will then decide whether to grant
Abu-Jamal a new trial.

This current stage in Abu-Jamal's appeal process began in December,
2005, when the 3rd Circuit announced the beginning of deliberations
and suprised many by agreeing to consider two claims not "certified
for appeal" by Federal District Court Judge William Yohn in 2001.

Mumia's attorney Robert R. Bryan declared it to be "the most important
decision affecting my client since his 1981 arrest, for it was the
first time there was a ruling that could lead to a new trial and his

In 1982, Abu-Jamal was convicted of killing white Philadelphia police
officer Daniel Faulkner in a trial that Amnesty International has
declared a "violation of minimum international standards that govern
fair trial procedures and the use of the death penalty,"

Calling for a new trial, supporters around the world feel that the
original one was tainted by racism, prosecutorial & judicial
misconduct, coerced witnesses, suppressed evidence, and a denial of
Mumia's constitutional right to represent himself.

Best (and Last) Chance For a New Trial

The 3rd Circuit is now ruling on the 2001 decision by Judge Yohn which
affirmed Abu-Jamal's guilt but overturned the death sentence. Citing
the 1988 Mills v. Maryland precedent, Yohn ruled that sentencing forms
used by jurors and Judge Sabo's instructions to the jury were
confusing. Subsequently, jurors mistakenly believed that they had to
unanimously agree on any mitigating circumstances in order to be
considered as weighing against a death sentence.

Mumia's case is now in the federal Third Circuit Court of Appeals. DA
Lynne Abraham is appealing the death penalty ruling while Mumia is
appealing the guilty verdict.

If the penalty ruling is overturned, a new execution date will be set
for Mumia. If his ruling is upheld, the DA can still impanel a new
jury to rehear the penalty phase, which could then sentence Mumia to
death—regardless of the 3rd Circuit ruling.

Because the DA appealed Yohn's death penalty decision, Mumia has never
left death row, and is still unable to have such "privileges" as
full-contact visits with his family.

Four Reasons For a New Trial
The courts are now considering the following four issues:

#1. Whether the penalty phase of Mumia's trial violated the legal
precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling.
This issue was Yohn's grounds for overturning the death sentence and
is now being appealed by the DA. The NAACP Legal Defense Fund has
filed a "friend of the court" brief in support of this claim.

#2. "Certified for appeal" by Yohn in 2001, the Batson claim,
addresses the prosecution's use of peremptory challenges to exclude
Blacks from Mumia's jury. In 1986, the US Supreme Court ruled in
Batson v. Kentucky that a defendant deserves a new trial if it can be
proved that jurors were excluded on the grounds of race. The NAACP
Legal Defense Fund has filed a "friend of the court" brief in support
of this claim.

At Mumia's trial, Prosecutor McGill used 11 of his 15 peremptory
challenges to remove black jurors that were otherwise acceptable.
While Philadelphia is 44% black, Abu-Jamal's jury was composed of ten
whites and only two blacks. From 1977-1986 when current Pennsylvania
governor Ed Rendell was Philadelphia's District Attorney, the evidence
of racism is striking: from 1977-86, the Philadelphia DA struck 58% of
black jurors, but only 22% of white jurors.

#3. The legality of McGill's statement to the jury minimizing the
seriousness of a verdict of guilt: "if you find the Defendant guilty
of course there would be appeal after appeal and perhaps there could
be a reversal of the case, or whatever, so that may not be final."

In 1986 the Pennsylvania Supreme Court ruled against McGill in another
case (Commonwealth v. Baker) on the same grounds. When Abu-Jamal
addressed this same issue in his 1989 appeal with the State Supreme
Court, the court reversed its decision on the legality of such a
statement—ruling against the claim for a mistrial.

Incredibly, just one year later, in the very next case involving this
issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped
and restored the precedent. However, this would not affect the ruling
against Mumia, because the court ruled that this precedent would only
apply in "future trials." This suggests that the rulings were designed
to specifically exclude Mumia's case from its precedent.

#4. The fairness of Mumia's 1995-97 PCRA hearings when the retired,
74-year-old Judge Sabo was called back specifically for the hearing.
Besides the obvious unfairness of recalling the exact same judge to
rule on his fairness in the original 1982 trial, his actual PCRA bias
has been extensively documented.

During the 1995 hearings, even the mainstream Philadelphia Inquirer
wrote that the "behavior of the judge in the case was disturbing the
first time around—and in hearings last week he did not give the
impression to those in the courtroom of fair mindedness. Instead, he
gave the impression, damaging in the extreme, of undue haste and
hostility toward the defense's case."

Concluding the PCRA hearing, Sabo rejected all evidence and every
witness presented by the defense as not being credible. Therefore,
Sabo upheld all of the facts and procedures of the original trial as
being correct.

This fourth claim is potentially the most explosive because the PCRA
evidence that was judged "not credible" exposed much more than an
unfair trial. Despite Judge Sabo and the DA's best efforts to minimize
and discredit, proof of an extensive police frame-up emerged.

Gary Wakshul and the False Confession
Arguably the strongest evidence against Mumia was suspiciously
introduced two months after his arrest. When interviewed (in February,
1982) by the police Internal Affairs Bureau investigating Mumia's
police brutality complaint, Officers Wakshul, Bell, and hospital
security guard Priscilla Durham then reported Mumia's supposed
"hospital confession" for the first time.

Mumia allegedly declared (in the presence of 15-20 other cops that
have never confirmed it): "I shot the motherfucker and I hope the
motherfucker dies!"

Testifying in 1982, Bell (Faulkner's partner and "best friend")
claimed the two month mental lapse resulted from being so upset about
Faulkner's death.

At trial, Durham contradicted her statement to police and testified
that she reported the confession to her supervisor the next day. While
neither her supervisor or the alleged hand-written statement were
presented in court, the DA sent an officer to the hospital--returning
with a suspicious typed version of the alleged report. Sabo accepted
the paper (not signed or dated) despite both Durham's disavowal of it
(because it was typed and not hand-written) and the defense's protest
that there was no establishment of authorship or authenticity.

Unfortunately, the jury never heard the most explosive evidence
discrediting the confession. While the DA called Bell and Durham to
testify, Wakshul was suspiciously absent. On the final day of
testimony in 1982, Mumia's lawyer discovered Wakshul's statement from
Dec.9—the morning of the shooting. After riding with Mumia to the
hospital and guarding him until his treatment, Wakshul reported: "the
negro male made no comment."

When the defense immediately sought to call Wakshul as a witness—the
DA reported that he was on vacation. On grounds that it was too late
in the trial, Sabo denied the defense request to locate him for
testimony. Subsequently, the jury never heard from Wakshul or about
his written report. When an outraged Mumia protested, Sabo cruelly
declared: "You and your attorney goofed."

Wakshul's "negro male" report was key evidence at the PCRA hearings,
and it was well-known that he would have to testify to defend his
"confession" story. Unknown to Mumia's lawyers, on July 13 (days
before his PCRA testimony) Wakshul was savagely beaten by undercover
police officers in front of a Judge in the Common Pleas Courtroom
where he worked as a court crier. Almost two years later, the two
attackers (members of Philly's Vice Squad) were suspended without pay
as punishment. With the motive still unexplained, the beating was
likely used to intimidate Wakshul into maintaining his "confession"
story at the PCRA hearings.

On the stand, Wakshul defended both his Dec.9 report and the two month
delay as just being a bad mistake. Further discrediting the
"confession" story, he repeated his incredible statement given to the
IAB investigator in 1982: "I didn't realize it had any importance
until that day."

The original trial's injustice was further exposed when Wakshul
testified to being home for his 1982 vacation—in accordance with
explicit instructions to stay in town for the trial so that he could
testify if called.

The "confession" story has been thoroughly discredited. As Amnesty
International concluded: "The likelihood of two police officers and a
security guard forgetting or neglecting to report the confession of a
suspect in the killing of another police officer for more than two
months strains credulity."

The Ballistics
At the PCRA hearings, defense ballistics expert George Fassnacht
testified that he declined a request to assist Mumia's defense in 1982
because the court-allocated $150 was insufficient. Subsequently the
defense never presented their own specialist. While testifying that
the fatal bullet was probably the same caliber as Mumia's gun (legally
purchased after his Taxi was repeatedly robbed), Fassnacht challenged
the prosecution's 1982 evidence in two key ways.

#1. Fassnacht defined "particular" and "general" rifling
characteristics. "Particular" traits are "the small stria or scratches
which identify a particular bullet" as coming from one specific gun.
In contrast, "general" traits can only link a bullet to a particular
type of gun.

Police experts have always said that the fatal bullet was too damaged
to link the "particular" traits to Mumia's 38 caliber Charter Arms

Fassnacht noted an unexplainable contradiction in police ballistic
expert Anthony Paul's original report. Paul first describes the
bullet's "general" traits as "indeterminable." Contradicting himself
in the same report, Paul later identified a general trait: a
"right-hand direction of twist." Paul's 1982 testimony went further by
identifying another general trait never mentioned in his written
report "8 lands and 8 grooves."

After deeming the general traits "indeterminable," Paul then alleged
two general traits that conveniently implicated Mumia's gun type.

#2. Police did not officially perform two basic forensics tests—the
"smell" and "wipe" tests. It is standard to "smell" the gun's barrel
for gunpowder (which can be smelled up to 4 or 5 hours after
discharge). The "wipe test" checks for gunshot residue on suspects'
hands and clothing.

When challenged by the DA, Fassnacht insisted that these tests are
reliable and routinely used.

Quoting Amnesty International: "the failure of the police to test
Abu-Jamal's gun, hands, and clothing is deeply troubling." Most
likely, police did perform the tests, but hid this when the results
did not implicate Mumia. This obvious ballistics manipulation
seriously challenges the credibility of other evidence, such as the
police allegation that Mumia's gun was at his side with five spent
cartridges when police arrived.

#3. In 1982, prosecutor McGill argued that Mumia had been shot in the
chest from below by a falling Faulkner. Recognizing the bullet's
downward trajectory McGill claimed that the bullet ricocheted off bone
within Mumia's torso and then tumbled in a downward direction.

Challenging this far-fetched theory, medical examiner John Hayes
testified in 1995 that X rays proved the bullet traveled without any
deflection. Easily disproving the official scenario, Mumia was
probably shot while running across the street towards Faulkner and his

Veronica Jones Exposes Coerced Testimony
Veronica Jones' 1996 PCRA testimony exposed police coercion of
witnesses and further discredited the the 1982 testimony of the DA's
star witness: prostitute Cynthia White (the only one to actually
testify to seeing Abu-Jamal pull the trigger).

The story begins on Dec.15, 1981 when Jones (a prostitute who was
working nearby on Dec.9) first told police that she had seen two men
"jogging" away from the crime scene before police arrived. Testifying
in 1982, Jones recanted and denied ever making the statement. However,
when asked if she had talked to the police since her first statement,
Jones testified that police had visited her in jail the next month:

"They were getting on me telling me I was in the area and I seen
Mumia, you know, do it...They were trying to get me to say something
that the other girl [Cynthia White] said. I couldn't do that." Jones
reported that police offered to let her and White "work the area if we
tell them."

Calling her testimony " absolutely irrelevant," the DA moved to block
the line of questioning and strike the previous statements. Because
Sabo happily complied, the jury was ordered to disregard Jones'
statement regarding White and a police offer of freedom to "work the
area" in return for testimony that Abu-Jamal shot Faulkner.

The DA and Sabo's efforts to silence Jones continued through to the
PCRA hearings.

Unable to locate her earlier, the Defense found Jones in 1996, and
(over the DA's protests) obtained permission from the State Supreme
Court to extend the PCRA hearings for Jones' testimony. Sabo
vehemently resisted—arguing that there was not sufficient proof of her
unavailability in 1995. However, in 1995 Sabo had refused to order the
DA's disclosure of Jones' home address to the defense team.

The defense returned to the State Supreme Court—which then ordered
Sabo to conduct a full evidentiary hearing. Sabo's attempts to silence
Jones continued as she took the stand. He immediately threatened her
with 5-10 years imprisonment if she testified to having perjured
herself in 1982. In defiance, Jones testified to perjury in 1982 when
she recanted seeing two men "run away" and "leave the scene."

She testified to changing her version of events after being visited by
two detectives in prison, where she was being held on charges of
robbery and assault. Urging her to finger Mumia, the detectives
stressed that she faced up to 10 years in prison and the loss of her
children if convicted. Afraid of losing her children, Jones testified
to meeting the police halfway: she didn't actually finger Mumia, but
she did lie about not seeing two men running from the scene.
Accordingly, Jones only received probation and was never imprisoned
for these 1982 charges.

During cross-examination, the DA announced that there was an
outstanding arrest warrant for Jones on charges of writing a bad
check, and that she would be arrested after concluding her testimony.
Tears pouring down her face, Jones declared: "This is not going to
change my testimony!"

Despite objections from the defense, Sabo allowed New Jersey police to
handcuff and arrest Jones.

While the DA attempted to use this arrest to discredit Jones, her
determination in the face of intimidation only made her more credible.
Outraged by Jones' treatment, even the mainstream Philadelphia Daily
News reported: "Such heavy-handed tactics can only confirm suspicions
that the court is incapable of giving Abu-Jamal a fair hearing. Sabo
has long since abandoned any pretense of fairness."

The same coercion of witnesses by police, DA, and judge exposed by
Jones' story was rampant in Mumia's case. Documented by Amnesty
International, witnesses Cynthia White (a prostitute facing multiple
charges) and Robert Chobert (an arsonist on probation, driving his cab
intoxicated and without a license) also "altered their descriptions of
what they saw, in ways that supported the prosecution's version of

"I'm Going To Help Them Fry The Nigger"
In 2001 another witness—Terri Mauer-Carter—challenged Sabo's
integrity, but the State Supreme Court ruled against the defense's
right to include her affidavit in their current federal appeal.
Mauer-Carter was working as a stenographer in the Philadelphia Court
system on the eve of Mumia's 1982 trail when she states that she
overheard judge Sabo say in reference to Mumia's case that he was
going to help the prosecution "fry the nigger."

Journalist Dave Lindorff recently interviewed Mauer-Carter's former
boss, Richard Klein, who was with Mauer-Carter when she states she
overheard Sabo. A Philadelphia Common Pleas Court judge at the time,
who now sits on PA's Superior Court, Klein told Lindorff: "I won't say
it did happen, and I won't say it didn't. That was a long time ago."
Lindorff considers Klein's refusal to firmly reject Mauer-Carter's
claim to be an affirmation of her statement.

The State Supreme Court ruling was an affirmation of lower-level Judge
Patricia Dembe's argument that even if Maurer-Carter is correct about
Sabo's stated intent to use his position as Judge to throw the trial
and help the prosecution "fry the nigger," it doesn't matter.
According to Dembe, since it "was a jury trial, as long as the
presiding Judge's rulings were legally correct, claims as to what
might have motivated or animated those rulings are not relevant."

Organizing for December 9
Interviewed by INSUBORDINATION, Pam Africa (coordinator of Mumia's
support network) stressed the urgency of the legal battle and the need
to apply political pressure from the grassroots. "We must call
attention to Mumia's current battle in the courts. We know the Supreme
Court won't hear his case, so this current phase truly is the last
chance for a new trial."

"I believe Mumia is innocent and am personally calling for his
immediate release. However, I'll work with anyone supporting a fair
trial. By demanding a new trial, we can work with those who know the
trial was rotten but are unsure of Mumia's innocence. As more people
learn about the injustice, our movement will only become stronger. The
evidence is on Mumia's side."

Activist around the country are organizing for Dec. 9—the 25th
anniversary of Mumia's incarceration. Africa is urging supporters to
come to Philly for a massive demonstration or to otherwise organize an
event in their hometown.

Concluding her fiery speech, Africa challenged the crowd to "rise up"
and force the courts to actually serve the people. "We understand that
they're getting ready to kill another black revolutionary who has
refused to bow down and suck up to his oppressor. Mumia's case
represents all that is wrong with this system. We must take action now
before it is too late!"

Hans Bennett is a Philadelphia-based photojournalist who has been
documenting the movement to free Mumia and all political prisoners for
more than 5 years. He can be contacted via email: 
<mailto:hbjournalist%40gmail.com>hbjournalist at gmail.com

Link to the October 23 legal brief

For more information about Mumia Abu-Jamal's case:

www.mumia.org or www.freemumia.com

The Freedom Archives
522 Valencia Street
San Francisco, CA 94110
(415) 863-9977
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