I’m not aware of any mainstream reporter who has read the trial transcripts to death-row inmate and journalist Mumia Abu Jamal’s trial. (For what follows the author assumes that the reader is familiar with Mumia’s case, which was the subject of
Baltimore Chronicle articles on 5/97 and 11/99.)
After reading them for all the preliminary hearings, the trial for the 1981 slaying of Police officer Daniel Faulkner, and the post-trial hearing, I have determined that he was framed. I’m not saying that because I know for sure that Mumia didn’t shoot Faulkner, perhaps in an uncharacteristically violent moment. However, the transcripts posted on a
have given me a very strong impression that Faulkner’s brother police officers and the Philadelphia Courts cheated in order to get Mumia on death-row.
Currently, Mumia and his lawyer, Leonard Weinglass, are in their final set of appeals. The next one is the most critical. A Federal Judge is to decide whether new evidence can be introduced in these latter stages. If he decides no, we should expect that Mumia will be executed.
The transcripts also lead me to disagree with several tactics being employed by Mumia’s supporters, namely Refuse and Resist and Mumia’s attorney, Leonard Weinglass. For one thing, they seem to be concentrating too much on the frame; i.e., the numerous reasons to doubt the District Attorney’s evidence. Instead, I think it would be more effective for Mumia’s supporters working for a new trial to focus on legal procedure.
Before explaining any further I’d like to say that the most obvious flaw in Weinglass’s strategy is to suggest that Mumia’s appointed attorney, Anthony “Tony” Jackson, was both disinterested and unqualified to defend Mumia. In my estimation, Jackson’s defense was outstanding. (He’s the progressive hero in the several thousand pages of dialogue.) In my opinion, he has the sharpest legal mind of the group comprising District Attorney Joseph McGill, Mumia, and Judge Sabo. The only reason that Mumia has a chance to be saved is because of Jackson’s work on his behalf.
Two major points in procedure stand above everything else. For one, the Judge in the preliminary hearings, the Honorable Judge Paul Ribner, Jr., made a key ruling that crippled Mumia’s defense. Shortly after the shooting incident occurred (Dec. 9, 1981), Jackson requested that a lineup be given to two key prosecution witnesses. Ribner denied this motion on the grounds, made by the DA, that they weren’t going to be used as identity witnesses. Jackson contested this vigorously when he first made the request and when he tried later in the motions hearing months afterwards. As Jackson points out in the motions hearing, these two witnesses had made no statement that was released to him via discovery at that point, which suggested they had seen Mumia do the slaying. So, when the two witnesses most had a fresh image in their minds of who it was they saw that night, the Judge would not permit them to undergo a lineup, even though the only persons saying that they had specifically seen Mumia were the cops.
Ribner’s blunder also came despite the strong question from her later wretched, abysmal trial testimony, of whether leading witness Cynthia White was even at the scene of the crime. At the pre-trial motions hearing, after Jackson’s relentless argument on their behalf, Ribner was softening his view towards the lineups. He said: “Where there is a clear-cut issue of identification of a person, where there is some question whether the person who comes into court is going to be able to identify the person, identify the face of the individual whom he says he saw at some time previously and where there’s a minimal opportunity to observe the face, that’s what a lineup is for.”
Soon after saying that, Ribner asked McGill: “There is one point you have to keep in mind: how are you going to handle these witnesses?” This is when McGill played a classic “bait and switch.” McGill stated that Cynthia White and Robert Chobert would not be testifying that they identified Mumia Abu Jamal as the shooter. In McGill’s words:
“[Miss White and Mr. Chobert] are not going to get up in the courtroom and identify the defendant as the shooter.”
He lied. At the trial these two quickly became key identity witnesses, alleging they had witnessed the defendant as the shooter. Understand this means the prosecution knowingly misrepresented the witnesses to the motions judge in order to prevent lineups for two leading witnesses. And, the Judge went along with it despite highly articulate protest from Jackson against this ruling. This assault on Mumia’s due process should get him a new trial alone. Getting lineups for the two witnesses was a reasonable request that was paramount to the defense.
Later, the trial judge, the Honorable Albert F. Sabo, Jr., made another colossal error during the voir dire stage. At this point Mumia (who never understood how good Jackson was as a lawyer), dumped Jackson. He had decided to represent himself and utilize his oratory, which already was making an impressive name for him in his brief career in radio journalism.
During voir dire, a potential juror was unsettled at the sight of Mumia asking her questions. For this reason, Sabo decided that Mumia could not continue the voir dire. A year later, during the post-trial motions, McGill would argue that Sabo had to remove Mumia from self-representation because he was asking too many questions of potential jurors. At this stage Jackson reminded the two that neither man is on the record for complaining during voir dire that Mumia was either inarticulate or being disruptive.
Whether Jackson’s statement is truthful or not is critical for Mumia now. The transcripts for the voir dire portion of his conviction are Mumia’s best chance for a new trial. They are not on the Faulkner web site (imagine that). However, if Sabo removed Mumia improperly at this stage nothing that followed should have counted.
In the post-trial motions hearing, Jackson explained what Sabo’s mistakes were. For one, the Supreme Court has ruled (Michael Dougherty vs. the U.S.) that if a defendant is denied the right to represent himself and later disrupts the court, that you can’t say the disruption justified the ruling. In other words, if he is denied self-representation improperly, whatever protest he may make later on does not justify the denial. Also, since Sabo lifted Mumia from self-representation in the middle of voir dire, (i.e., without restarting the process), it also conflicts with another Supreme Court precedent (New York v. Mancuso) which says you cannot change counsel during that process.
When the trial began, Mumia disrupted the Court and behaved in a fashion that could not have endeared him with the jury. (Sabo’s other errors notwithstanding, he was right to have Mumia removed after most of Mumia’s outbursts.) However, before this event took place some members of the jury had already seen Mumia begin as his own lawyer and knew that he had been removed from that role. That too, could not have endeared him to them.
Sabo’s second-most-controversial ruling was that Mumia could not have his trusted ally (but not a lawyer), John Africa, seated with him at the defense table. This came despite the fact that Sabo had granted permission for police officer (and non-lawyer) Gwen Thomas to sit at the prosecution’s table. (McGill disputes whether he even availed himself of this privilege, while Jackson says he did.) This ruling was indicative of an accommodation that Sabo made for the Commonwealth of Pennsylvania that wasn’t granted for the defense, in violation of his equal rights under the law.
Leonard Weinglass may be making a mistake by adding twenty more points to his appeal in Federal Court. The question of whether Mumia was framed or not (as he certainly was) might not be as important to the appeals judge as Ribner and Sabo’s judicial blunders, which made it impossible for Mumia to receive a fair trial before it even began.
My message to Mumia’s supporters is, don’t make the centerpiece of your argument the frame, or Judge Sabo’s many mistakes during the trial. Rather, focus on what happened before the trial occurred.
However we do it, by all means, let’s work together to see Mumia Abu Jamal receive a new trial.