Journalists for Mumia Fundraiser Presents New Article by Jeff Mackler
This new essay by Jeff Mackler, "Mumia Abu-Jamal: On the Road to Freedom," is presented by “Journalists for Mumia Abu-Jamal” to publicize and raise money for printing the next issue of our newspaper, “Abu-Jamal News.”
Challenging the long-tradition of mainstream media bias against Abu-Jamal, “Journalists for Mumia” provides independent, non-sectarian news about the case of Mumia Abu-Jamal.
AFL-CIO for Mumia, San Francisco, 2001
By JEFF MACKLER
Presented by Journalists for Mumia Abu-Jamal
This new essay by Jeff Mackler, is presented by “Journalists for Mumia Abu-Jamal” to publicize and raise money for printing the next issue of our newspaper, “Abu-Jamal News.” Our first issue was released in April, just weeks prior to Abu-Jamal’s crucial May 17 oral arguments before the federal Third Circuit Court of Appeals.
The week of the oral arguments, Journalists for Mumia unveiled explosive new crime scene pho-tos (never before published in the US) that prove police manipulation of evidence at the scene. The photos were printed on thousands of large posters and posted for viewing on our new web-site: Abu-Jamal-News.com.
While we are still trying to make our money back from these posters, we are now actively fund-raising for the printing of our second issue. The 10,000 copies of our first issue were depleted far too quickly, and we are now hoping to print 30,000 copies of issue #2. Every little bit helps, so please consider donating money to help with the printing costs. All labor is donated, meaning that every penny will go towards printing costs, and a fraction going towards postage for our dis-tribution.
DONATIONS CAN BE MADE with a credit card directly on our website via Pay Pal:
Or, checks can be made out to “Hans Bennett” and mailed to:
Journalists for Mumia, PO Box 30770, Philadelphia, PA 19104
Challenging the long-tradition of mainstream media bias against Abu-Jamal, “Journalists for Mumia” provides independent, non-sectarian news about the case of Mumia Abu-Jamal.
We appreciate your consideration of this crucial financial support for our “all-volunteer labor” newspaper, and hope you enjoy this excellent new article by Jeff Mackler, a long-time organizer of the support movement for Abu-Jamal in San Francisco.
Journalists for Mumia co-founders
Hans Bennett ( firstname.lastname@example.org)
Michael Schiffmann ( email@example.com)
Mumia Abu-Jamal: On the Road to Freedom?
By JEFF MACKLER
It is difficult to imagine that the systematic race and class bias that permeate America’s criminal “justice” system could be set aside and that the nation’s most famed and innocent death row in-mate and political prisoner of 25 years, Mumia Abu-Jamal, could win a new trial and freedom.
But that is precisely what appeared to be unfolding on May 17 in the packed Ceremonial Courtroom of the Federal Courthouse in Philadelphia as a three-judge panel of the U.S. Court of Appeals for the Third Circuit, in full view of 200 riveted Mumia supporters and others from across the country and around the world, mercilessly queried Pennsylvania’s lead prosecutor and persecutor, Hugh Burns.
In contrast, Mumia’s three-person legal team of Robert R. Bryan, Judith Ritter, and NAACP Le-gal Defense Fund amicus curiae (friend of the court) counsel Christina Swarns appeared to have the rapt, if not sympathetic, attention of the three judges during most the two-and-a-half-hour proceeding.
The day’s events left little doubt that these Judges, Chief Justice Anthony Scirica and Judge Robert Cowen (Reagan appointees), and Judge Tho¬mas Ambro of the Clinton era, had carefully read the volum¬inous briefs submitted by both sides and thoroughly research¬ed the history of the constitut¬ional issues involved, includ¬ing the precedent-setting cases that govern their interpretation.
Indeed, a number of the Third Circuit’s previous decisions on several critical issues that directly pertain to Mumia’s most telling arguments have marked this court as among the few remaining “liberal“ juridical institutions in the country.
Hugh Burns was hard pressed to offer his own skewed interpretation of Third Circuit decisions when the judges, who had themselves authored a number of the cases cited, were virtually star-ing/glaring in his face as they peppered him with citations contradicting his central arguments.
This appears to be the real reason why Pennsylvania’s prosecutors, looking for a more conserva-tive panel of judges, filed motions prior to the hearing to literally recuse (remove) the entire Third Circuit from hearing Mumia’s appeal. The prosecutors argued spuriously that the circuit included a judge who is the wife of Pennsylvania Gov. Ed Rendell (Rendell has pledged to sign a third warrant for Mumia’s execution). They postulated that Marjorie Rendell’s presence, by virtue of her relation to the governor, would constitute grounds for a future successful appeal of the pro-ceedings by Mumia in the event of any decision against him.
The prosecution’s effort to escape the Third Circuit’s jurisdiction was rejected, as Robert R. Bryan’s response brief successfully countered that the move was a blatant effort to circumvent the court for political reasons. The judges also granted Bryan’s request to double the time for oral arguments, fi-nally granting each side one hour and five minutes as opposed to the traditional 30 minutes.
Frame-up Trial Under “Hanging Judge” Albert Sabo
In a 1982 frame-up trial presided over by now deceased “hanging judge” Albert Sabo, Mumia Abu-Jamal, an award-winning radio jour¬nalist, was convicted of the Dec. 9, 1981 killing of Phi¬ladelphia police officer Daniel Faulk¬ner. The grotesque trial proceedings have been condemned by groups ranging from Amnesty International and the NAACP to the European Parliament and the presidents of France and South Africa. One third of the 35 Philadelphia police officers in-volved in one way or another in Mumia’s case were later indicted on charges of corruption, wit-ness intimidation, falsification of evidence, and in¬volvement in drug peddling and prostitution.
Judge Sabo himself was a retired member of the death-penalty-obsessed Fraternal Order of Police and was widely seen as “a prosecutor’s best friend.” Sabo sentenced to execution a national re-cord of 32 defendants (30 of whom were racial minorities) over the course of his 14-year stint on the bench.
According to an affidavit filed by award-winning court stenographer Terri Maurer Cater, she over¬heard Sabo state during a Mumia trial recess period and in the presence of another judge, “Yeah, and I’m going to help ‘em fry the nigger.”
This and other evidence of racial bias was clearly presented to the court. In one instance, said Bryan, a Black juror with a hearing disability, who explained that he could function perfectly well when he turned up his hearing aid, was dismissed while a white juror with the same disabil-ity was accepted.
The May 17 hearing began with prosecution de¬signee Hugh Burns presenting the state’s case to re¬instate the death sentence and execute Mumia by lethal injection. A 2001 federal district court de¬cis¬ion by William H. Yohn Jr. had previously voided the trial court’s death sentence based on Judge Sabo’s flawed and ambiguous oral instructions and the similar written forms regarding mitigating circumstances sufficient to sentence Mumia to life imprisonment rather than death. In the face of repeated questions on this issue it seemed apparent that Burns was losing ground with his effort to cite cases to justify the flawed instructions that operated to lead jurors to falsely con-clude that they had to be unanimous with regard to each and every mitigating circumstance to find sufficient grounds to sentence Mumia to life imprisonment as opposed to death.
In a withering presentation of Mumia’s side of this issue, Judith Ritter detailed the flaws in Sabo’s oral and written instructions and cited chapter and verse why similar unclear and ambigu-ous instructions had been struck down by the courts.
If Mumia wins on this issue, if the state insists on death it would be compelled within 180 days to hold what amounts to a new trial, except that the new jury would be barred from finding a verdict of innocence and in¬stead be limited to choosing a sentence of either life in prison or death.
The prosecution has stated that in this eventuality the state has yet to decide if it would pursue a new trial. Instead it might well conclude that its interests would best be served by dropping the matter, thereby keep¬ing Mumia in prison for life and avoiding having the state’s frame-up further exposed with a defense presentation to a new jury, replete with volumes of new or suppressed evidence that prove Mumia’s innocence. Before facing such a prospect the state has a further op-tion, perhaps its magic weapon in turning any defeat it might suffer into victory. It can appeal any decision against it to that bastion of reaction and graveyard of civil liberties, U.S. Supreme Court.
Black jurors excluded from trial
The next critical issue in dispute was Mumia’s contention that in violation of the famous U.S. Supreme Court decision in the 1986 case of Batson v. Kentucky, racism guided the state’s use of preemptory challenges to exclude Black jurors. Of the 14 qualified Black jurors interviewed in Mumia’s 1982 trial, prosecutor Joseph McGill eliminated 10 with preemptory strikes, that is, re-moval with no stated cause.
Of the 25 possible white jurors, McGill eliminated only five. That left Mumia with a jury of nine whites and three Blacks (plus four white alternate jurors) in a city with a Black population of 40 percent. The jury’s racial composition was further altered when Judge Sabo eliminated a Black juror already selected, who was replaced with a white juror, for a final jury composition of 10 whites and two Blacks.
The Black juror was dismissed after she went home in the evening when the trial was not in session to attend to her sick cat despite Judge Sabo’s refusal to grant her permission to do so. But permission to leave the courtroom was not denied to a white juror for who Sabo authorized a police escort to take a civil service exam although it meant suspending the trial itself for a half day.
Race prejudice in jury selection by prosecutor Joseph McGill was cited by Bryan in both Mumia’s written brief and Bryan’s oral arguments. McGill, in six murder trials, including Mumia’s, had removed 74 percent of Black jurors with preemptory challenges as compared to 25 percent of white jurors. Prior to becoming Pennsylvania governor, District Attorney Ed Rendell had established a two-term record of having prosecutors use preemptory challenges to bar 58 per-cent of all Blacks from Philadelphia juries as compared to 22 percent for whites.
Further, the routine exclusion of Black jurors was the established practice of Philadelphia prose-cutors, in accord with an overtly racist 1982 State Supreme Court decision in the case of Com-monwealth v. Henderson, which held, “The race, creed, national origin, sex or other similar char-acteristics of a venireman (member of a jury pool) may be proper considerations in exercising peremptory challenges.”
That is, a Black person in Pennsylvania could be legally excluded from a jury panel if the prose-cutor believed that he/she would be sympathetic to a Black defendant! Henderson was reversed at least in part by the U.S. Supreme Court’s 1986 Batson decision. Hugh Burns’ response to the data proving the exclusion of Blacks was that it was irrelevant and technically barred from con-sideration because the defense allegedly did not present it in a timely manner, that is, during the 1995 Post Conviction Relief Act hearing when new evidence was supposedly open to considera-tion. At that time, however, the extent of the data was unknown and did not become known until the case reached the federal courts.
A new twist to the issue of racist exclusion of Blacks was added to the hearing when the presid-ing judges themselves queried the defense as to the composition of the entire venire (jury pool) from which jurors were selected. Since no such data was available on this matter two of the judges speculated that it was hypothetically possible that the Black percentage of the entire jury pool could have been so high that McGill’s peremptory elimination of 71 percent of the Black jurors might not constitute discrimination at all. Indeed, one judge speculated with a straight face that it was possible that “discrimination against whites” might be the case!
At no time during Mumia’s decades of legal battles had the prosecution itself raised such a possi-bility, either in written briefs or oral arguments. The reason is obvious. The history of jury pools in Philadelphia had always indicated that Blacks were highly underrepresented, as opposed to the hypothetical scenario presented by two of the judges that the possibility existed that Blacks could have been over-represented. But the judges’ toying with the issue could indicate an inclination to establish a new precedent to undermine Mumia’s Batson claim.
Mumia’s defense attorneys responded that even in the absence of data on the overall jury pool, the sum total of the evidence of discrimination they had presented constituted a prima facie case of racial discrimination sufficient to comply with the standards set forth in Batson.
Should the Third Circuit affirm the state’s violation of Batson, the result could either be a new trial or the court’s sending the issue of jury discrimination back to the previous court for an evi-dentiary hearing, where the prosecution’s 1982 striking of each and every Black juror would have to be defended based on grounds other than race. Bryan told me that such a hearing would open the door wide to factually demonstrate that the exclusion of Blacks was based on racist criteria.
Prosecutor McGill: Abu-Jamal Will Have “Appeal after Appeal”
Perhaps the most stunning dispute of the day took place over the defense contention that prosecu-tor Joseph McGill’s summation to the jury included the statement, “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.”
It was here that the full force of the three-judge panel was brought to bear. Hugh Burns was chal-lenged to justify why this statement did not constitute a violation of the U.S. Constitution. The jus-tices were re¬ferring to the due-process clause of the 14th Amendment of the Bill of Rights as it applies to the Sixth Amendment’s fair-trial provisions, in short, the necessity of applying the standard that a jury must operate with a “presumption of innocence” to be negated only if the defendant is found to be guilty “beyond a reasonable doubt.”
The judges felt compelled to remind Burns that only juries, bound by this standard, determine guilt or innocence, not appeals courts, the latter being limited to deciding issues of the common law (law made by judicial decisions), statutory law, and associated constitutional interpretations.
McGill’s “appeal after appeal” statement to the jury was in fact his stock in trade. In fact, a 1986 decision of the Pennsylvania Supreme Court reversed a death sentence and ordered a new sen-tencing in the case of Commonwealth v. Baker, where McGill had dutifully offered the jury vir-tually the same "appeal after appeal" summation.
If the present judges apply this precedent and extend it to the guilt phase of the trial, as they should due to the constitutionally-mandated “reasonable doubt” imperative, Mumia’s guilty ver-dict will be voided and he will be granted a wholly new trial, a trial during which all the evidence of innocence that had been previously suppressed can be submitted to a new jury.
Of course, should the Third Circuit take this course of action, it is likely that the state will appeal the deci-sion to the U.S. Supreme Court, placing Mumia’s fate once again in the hands of the reactionary judiciary.
Robert R. Bryan told this writer that “if the Third Circuit follows the law, Mumia will be granted a new trial,” an eventuality that he believes “will result in Mumia’s freedom.”
While it certainly appears that the “law” is on Mumia’s side, the conclusion that it will be ap-plied, as Bryan fully understands, is far from certain. “The law, in its majestic equality,” French novelist Anatole France aptly observed, “permits the rich and the poor alike to sleep under bridges, beg in the streets, or steal bread.”
A review of “the law’s” record to date mak¬es clear that its interpretation remains in the hands of a racist and class-biased judiciary that has to date torn it to shreds with tortuous renditions that defy logic.
The Anti-terrorism and Effective Death Penalty Act
It was Judge Sabo, whose version of “the law” was applied nearly 100 times against defense mo-tions protesting his violation of Mumia’s constitutional rights, who first indicated how the system would work in this case. It was Federal District Court Judge William H. Yohn’s interpretation of “the law” that was applied to rule against 28 of Mumia’s 29 constitutional issues originally pre-sented to his court. Yohn repeatedly cited the 1996 Anti-terrorism and Effective Death Penalty Act (AEDPA), signed by President Clinton, to justify his interpretation of “the law.”
This reactionary law’s central proposition for the first time requires federal courts to grant a “pre-sumption of correctness” to the findings of state courts, in this case the “legal” findings of racist Judge Albert Sabo. It was signed by President Clinton with his own warning that “parts of it” may be “found to be unconstitutional.” This “liberal” president was referring to the law’s abroga-tion of the presumption of innocence and associated denial of the right of habeas corpus, that is, the right to appeal injustices to the federal courts.
The AEDPA was so named because it was designed to make state court death penalty sentences “effective,” that is, immune from appeal to the federal courts. Prior to its passage a full 40 per-cent of all state court convictions in murder cases were reversed on appeal. Why? The record shows that the major grounds for reversal were incompetent counsel intimidation of witnesses and falsification of evidence, in effect, the central issues in Mumia’s case.
The AEDPA’s new standard, applied to Mumia’s appeal, allowed Judge Yohn to eliminate from consideration the myriad of factual and legal issues demonstrating police/prosecution’s falsifica-tion and fabrication of evidence, intimidation of witnesses and other atrocities under “the law” that had been buried beneath a mountain of contrary “legal” findings over the past 25 years.
Judge Yohn felt compelled to cite another novel interpretation of “the law,” the present doctrine that “innocence is no defense.” Authored by the U.S. Supreme Court in the infamous Herrera case, this holds that innocence is trumped by timeliness. If evidence of innocence is submitted beyond a statutory deadline, it is irrelevant. The legal process must embody “finality,” says the “law of the land” today, even if the result is the execution of an innocent man.
Today, the truth of what happened in the fateful early morning hours of Dec. 9, 1981, has been obliter-ated from the record by a system that has reduced Mumia’s chances of freedom to the interpretations of a handful of “constitutional issues” by three supposedly unbiased jurists, while the vast reserve of evidence proving Mumia’s absolute innocence had been long ago been barred from consideration.
The political stakes involved in Mumia’s case are recognized by all. The federal level of the U.S. state itself believed that it was necessary to inform the Third Circuit where it stood when the House of Representatives in the last session of the Republican Congress passed a lying resolution condemning Mumia as a cop killer and warning the French city of St. Denis that its naming of a street after Mumia was unacceptable to the U.S.
This is but one indication that “the law’s” interpretation extends far beyond the judiciary. All but 31 House members approved this resolution that pitifully stated that Mumia had exhausted all his appeals at a time when his most important appeal was pending before one of the nation’s highest courts. So much for the objectivity, not to mention the factual accuracy, of the legislative branch, the same branch of government that voted to hasten the execution of the 3350 people (mainly Blacks and other op-pressed minorities) who inhabit the death-row sections of the profit-oriented prison industrial complex.
What Really Happened on the Morning of Dec. 9, 1981?
The truth of that day has been largely obliterated by countless police and pro¬secution manipula-tions and falsifications designed to buttress a scenario that can¬not stand up to the massive accu-mul¬ations of facts that were known at the time and subsequently unearthed. The facts are simple enough. In this writer’s view, a police officer, shortly before 4:00 am, in a red-light district of Philadelphia, stopped a banged-up blue Volkswagen bug with a dangling license plate and de-manded that the driver, Mumia’s brother Billy Cook, get out of the car, which he did.
Officer Faulkner, who had put in a call for police back-up, also ended up with a driver’s license application in his clothes that belonged to Arnold Howard, who had given it to Kenneth Freeman, Cook’s street-stall business partner and a passenger in the VW bug. The license was almost im-mediately found by the police in Faulkner’s clothing, but only reported to the defense some 13 years later.
An argument ensued and Faulkner bludgeoned Cook with his 17-inch flashlight. Mumia, parked in his taxicab a distance away, ob¬served the beating. He headed toward the scene and was shot by Faulkner. Freeman then alighted from the VW and shot Faulkner.
Six witnesses say the shooter, Freeman, fled the scene, with se¬v¬eral describing his clothing, hair, and physical characteristics, all vastly different from Mumia’s. Mumia, near dead, lay a few feet away from Faulkner. All the evidence accu¬mulated since that time proves these assertions and disproves the prosecutions fabricated scenario (see freemumia.org).
The 31 photographs of the crime scene taken minutes after the shootings by photojournalist Pedro Polakoff put the lie to the testimony of police “eyewitness” Robert Chobert, who claimed that he viewed the murder from his taxicab that was parked immediately behind Faulkner’s police car. There was no such taxicab there.
Chobert changed his testimony three times to conform to the police scenario. The photographs recently made public by Polakoff show conclusively that the police manipulated the crime scene, rearranging critical evidence and destroying fingerprint evidence on guns found at the scene.
The critical details of the frame-up have been vividly recounted for decades, with new evidence found just months ago further proving their veracity. New ballistic evidence revealed by Michael Schiffmann, a German researcher who wrote his PhD. thesis on the case, again demonstrates the impossibility that Mumia murdered Officer Faulkner.
What Will It Take To Free Mumia?
What can be done today to win Mumia’s freedom? In a perfect world the solution would be in the French tradition of 1789. Drive the corrupt modern day monarchs of capital from their haughty palaces of power and storm the Bastille to free the innocent, including Mumia!
But we do yet not live in a perfect world. Our power has proved sufficient to stay the executioner’s hand for 25 years and beat back two warrants for Mumia’s execution. It has gotten us to the point where a possible aberration in the system has allowed the May 17 hearing to finally expose critical aspects of Mumia’s frame-up. But we are still far from seeing a free Mumia walk out of his supermax death row cell at the State Correctional Institution Greene in Waynesburg, Pennsylvania.
With the fight for one man’s life (Mumia is Everyman and Everywoman who faces death at the hands of criminals) once again on the line and at center stage, we have a new opportunity to rein-vigorate our movement, broaden its base and ensure that justice is done.
Our capacity to mobilize in unprecedented numbers and make the political price of Mumia’s murder and continued incarceration too high to pay is central to the work ahead. History has amply demon-strated that all of our historic victories stem from the exercise of our collective power. That power lies with all who cherish freedom and despise injustice. Join the fight for Mumia’s freedom!
--Jeff Mackler is the Director of the Northern California-based Mobi¬lization to Free Mumia Abu-Jamal, FreeMumia.org; 415-255-1085.
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--Pam Africa, coordinator of The Intl. Concerned Family and Friends of Mumia Abu-Jamal.
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--Ramona Africa, Minister of Communication of The MOVE Organization and the sole adult survivor of the May 13, 1985 bombing of MOVE headquarters.
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"When I am looking for the latest and the most in-depth information about Mumia Abu-Jamal's case, I read Abu-Jamal News."
--Noelle Hanrahan, award winning investigative journalist and director of Prison Radio.
For more: FreeMumia.com (NYC), FreeMumia.org (SF), PrisonRadio.org (Mumia Abu-Jamal’s radio-essays), and EmajOnline.com (Educators for Mumia).
or contact: The Intl. Concerned Family & Friends of Mumia Abu-Jamal:
ICFFMAJ, PO box 19709, Phila., PA, 19143 (215-476-8812)