THE TRIAL OF MUMIA ABU JAMAL
by Leonard I. Weinglass
In one of the most extraordinary trials in recent history, Mumia Abu-Jamal, a leading African American broadcast journalist in Philadelphia, aptly dubbed "the voice of the voiceless", was put on trial in June of 1982 and sentenced to death for the murder of a white police officer.
The case was tried before the Honorable Albert Sabo, notorious for having put more people on death row than any other sitting judge in the United States.
Before ascending to the bench, he served as the under sheriff in Philadelphia for 16 years. No less distinguished was the tough and experienced prosecutor, who had previously convicted a demonstrably innocent man. (After serving 12 years for a crime he didn't commit, the district attorney's office petitioned the court for the defendant's release following an investigation into the prosecution's use of false testimony.)
The only inexperienced actor in the proceedings was Mumia's court appointed attorney, who was thrust into the role of defense counsel after Mumia was stripped of his right to represent himself midway through jury selection.
He repeatedly sought to be relieved as assisting counsel to Mumia during pretrial hearings. Following the trial, he was suspended from the practice of law for unrelated financial dealings.
It would have been impossible for counsel to effectively defend Mumia even if he had the skill and dedication. The court allocated just $150 pretrial to the defense for the investigation of the case, despite the fact that the police investigators had conducted over 125 witness interviews. By trial time, the defense had succeeded in locating just two eyewitnesses, although aware that there were many more. In a desperate last minute move, Mumia's attorney frantically tried to contact a key eyewitness by borrowing the judge's telephone while the jury sat waiting in the courtroom. The effort failed. While the prosecution presented experts on ballistics and pathology, the defense was prevented from doing so due to the paltry sums allocated by the court for that purpose.
On the third day of jury selection, the court barred Mumia from further questioning of the prospective jurors. Reluctantly, and obviously unprepared, his court appointed attorney was compelled to take over. Although 77 of the first 80 jurors had heard or read of the case, necessitating a probing inquiry into what opinions, if any, they had formed, the court became impatient with the process, falsely claiming that Mumia's questions intimidated jurors. More plausibly, the court's action was attributed by court observers to the fact that Mumia's professional training in broadcast journalism was creating too favorable an impression.
Under pressure from the court to expedite the selection process, which at one point included threatening Mumia's lawyer with contempt, a jury was selected that included a man whose best friend was a former Philadelphia police officer on disability as the result of having been shot while on duty, and an alternate juror whose husband was a Philadelphia police officer.
Counsel inexplicably failed to object or even make note of the prosecution's racist use of 11 of 15 peremptory challenges to remove African American jurors.
He even consented to the judge's summary dismissal, in Mumia's absence, of an African American juror who had already been selected, replacing her with an older white male, who refused to answer whether he could keep an open mind, saying he didn't think he "could be fair to both sides."
The prosecution presented its case in less than seven days. Mumia was not present during most of it, having been removed from the courtroom for insisting on his right to self-representation, as well as the assistance of John Africa at counsel table. With his life on the line, he argued that he was being defended by a lawyer who was not only unqualified, but unwilling to represent him. Nothing was done to assist Mumia in following the proceedings, such as audio transmission into his holding cell or the provision of a transcript. Not only was this a departure from common practice, but it was particularly damaging since it was Mumia, not his attorney, who had prepared the case. Without Mumia's presence or assistance, his attorney could only feebly attempt to cross examine the prosecution's witnesses.
It was undisputed that the police officer had been shot on a public street at 4 a.m. on December 9, 1981, after having made a stop of Mumia's brother's car. It was also undisputed that Mumia arrived at the scene moments later, after the officer had pummelled his brother with his flashlight. Mumia was shot, presumably by the same officer, since the bullet taken from his body matched that of the officers gun. Mumia remained in critical condition for a period of time following emergency surgery.
Nonetheless, his case was rushed to trial within six months without a continuance. From the time he announced that he would be defending himself, Mumia was given just three weeks to get his case ready for trial.
The prosecution's case relied mainly on the testimony of four witnesses who claimed to be at or near the scene of the shootings. The court had refused all requests to have these witnesses attempt an identification of Mumia in a lineup, instead allowing him to be identified as he sat at counsel table or through photographs in his absence. The most damaging witness was a female prostitute who had a record of over three-score arrests and was facing additional charges in Massachusetts. She testified that she saw Mumia shoot the officer by running up behind him, shooting him once, and then firing again after he fell to the sidewalk. Previously, she had given a number of differing accounts, most of them contradicted by the other three witnesses. Another prostitute who was working the same area that night testified she was offered the same deal as the prosecution's witness: immunity from arrest by the police in return for her testimony against Mumia.
Of the three remaining witnesses, all male, two said they saw Mumia run to the scene where the police officer was beating Mumia's brother. Both testified that gunfire erupted shortly after Mumia arrived, but neither one saw Mumia shoot the officer. The third witness, a cabdriver who pulled up behind the police car, was closest to the shooting. He told police the shooter fled the scene, beating a hasty retreat before the police arrived by running to where an alleyway intersects the sidewalk some 30 yards away. The shooter was a large heavy man, over 6'2" and weighing more than 225 pounds. Mumia is 6'1" and weighs a scant 170 pounds. At trial this witness denied that the shooter ran away, insisting instead that he took just a few steps and then sat down on the curb at the precise point where the police found Mumia, slumped over and bleeding profusely from his wound. The judge kept from the jury the fact that this witness had previously been convicted of throwing a Molotov cocktail into a public school for pay and might therefore have altered his testimony to curry favor with the prosecution or even out of fear. Another witness, a nearby resident, also reported seeing a man flee the scene in the same direction. She was the witness defense counsel couldn't produce after contacting her on the judge's telephone midway through trial. A third witness, a prostitute, told the authorities that she also observed one or two men running from the scene, but recanted her story after being threatened by the police. In all, four witnesses situated in four separate locations on the street and none of whom knew each other or Mumia reported seeing the shooter flee, and all had him going in precisely the same direction. It's simply impossible that all four were hallucinating about the very same thing. Nonetheless, no investigation was made to locate or identify the fleeing suspect.
The prosecution's theory was that Mumia first shot the officer, wounding him slightly. When the officer returned fire and hit Mumia, Mumia, angered by having been shot, stood over the officer who had since fallen to the sidewalk, and shot him in the face, killing him instantly. None of the witnesses, however, saw it that way. None even saw Mumia get shot. That theory was constructed out of the simple fact that the police found both Mumia and the officer lying within several feet of each other on the sidewalk and both wounded from gunshot. No attempt was made to investigate the several reports of the shooter seen running away. While Mumia's gun was found at the scene (he had a permit to carry a weapon since he had been robbed as a cabdriver) the prosecution's expert claimed he could not match the bullet recovered from the officers body to Mumia's gun due to the fragmented nature of the bullet.
To add weight to this somewhat shaky thesis, unconfirmed by the incredible prosecution witnesses, a security guard was produced who was assigned to the hospital where Mumia was taken for treatment. She testified that Mumia, an experienced journalist who had covered scores of court cases, openly confessed to everyone within earshot that he had shot the policeman, adding for emphasis, "I hope the mother fucker dies." However, the officer who took Mumia into custody and stayed with him specifically told investigators that Mumia remained silent throughout the entire time he was with him. His testimony, however, like that of the missing eyewitnesses, was not produced at trial. The honest officer who reported these events was "on vacation" and not available when called by the defense.
A defense request to continue the case a few days until his return was denied. Not being able to produce the witnesses it needed to rebut the prosecution's case, the defense relied, instead on the testimony of 16 character witnesses.
All testified that Mumia could not possibly have committed such a crime since he was known both professionally and socially as a gentle and decent man.
When one of the character witnesses, the noted author and poet Sonia Sanchez, took the stand, the prosecutor questioned her, over objection, about the irrelevant fact that she had written the forward to Assata Shakur's (Joanne Chesimard) book. Then, with the court's blessing, he launched into a highly prejudicial and improper line of questioning about Assata's conviction for the killing of two police officers in New Jersey; he inquired, further, whether Sanchez also politically supported three New York men who had been convicted of killing police. Thus, the prosecutor insinuated that Sanchez made a habit of supporting police killers; and that, by implication, Mumia must be one. In so doing, the prosecutor not only committed prosecutorial misconduct, but he also set the stage for what later became an all out attack on Mumia's politics.
The jury began deliberations at noon on the Friday of the Fourth of July weekend. By then they had been sequestered in a downtown hotel and away from their families for almost three weeks. Not surprisingly, before the day was over they reached a verdict guilty of first degree murder. However, they were unable to do so without first requesting, following several hours of deliberation, that they be re-instructed on the law of third degree murder and manslaughter. Evidently, at least some jurors were troubled by the fact that, even if they accepted the prosecution's theory of the case, the element of premeditation was lacking since the officer was not fatally shot until after Mumia himself was shot, and then, presumably, as the result of an unpremeditated reaction. With the jury thus conflicted on the lesser charges of manslaughter and third degree murder, no one anticipated this same jury would vote the death penalty.
The key to understanding why they did lies in what transpired during that part of the case which followed, referred as the penalty phase. It is then that both sides present evidence bearing on the issue of whether or not a sentence of life without parole should be imposed or death. In a clear violation of Mumia's constitutional rights, the prosecution presented evidence of Mumia's background as a member of the Black Panther Party some 12 years earlier and his political beliefs as reported in a newspaper interview when he was just 16 years old. Beyond doubt, Mumia is on death row because of those political beliefs and associations. The ensuing portion of the transcript reads like a grotesque chapter out of the Inquisition.
It began when Mumia rose at counsel table to read a statement to the jury, exercising the time-honored right of allocution that all convicted persons have prior to being sentenced. He was not sworn as a witness and did not take the stand. In his statement he claimed his innocence and eloquently accused the proceedings of being unfair. Stunned by Mumia's accusations against his handling of the case, the judge ruled that Mumia had made himself a witness and could be cross-examined in front of the jury.
The prosecutor only too eagerly rose to the occasion. First, Mumia was asked why he didn't stand for the judge when he entered the courtroom. That irrelevant and prejudicial inquiry was followed in rapid succession by a series of questions about why Mumia didn't accept the court's rulings without rancor, shouted at an appellate judge when his right to control his own case was taken away and engaged in a hostile exchange with the court during pretrial hearings. As if to answer these questions, the prosecutor read from a 12-year-old newspaper article about the Black Panther Party which contained, among other things, an interview of Mumia when he was just 16 years old. With his voice now rising, the prosecutor demanded to know if Mumia had ever said that "political power grows out of the barrel of a gun."
Mumia calmly responded that the quote did not originate with him but was a well-known dictum of Chairman Mao Tse-tung of the People's Republic of China. Continuing without letup, the prosecutor asked if Mumia could recall in the same interview having said, "all power to the people." Again Mumia acknowledged the quote but insisted on the right to read extensively from the news article in order to place his comments in context. The article, which had previously been kept out of evidence by the court as being too prejudicial, included references to the Black Panther Party, the breakfast program and the party's on-going dispute with the Philadelphia Police Department.
Having thus portrayed Mumia as a radical black militant to this nearly all-white jury, the prosecutor argued in summation that it was Mumia's political history and disrespect of the system that caused him to kill the policeman. In returning a verdict of death, the jury obviously focused on the irrelevant quoted words of a 16 year old, while disregarding the fact that Mumia had grown into manhood without a single arrest or conviction on his record, with a college education, a family and the abiding respect and admiration of the community.
The appeal which followed was no less irregular. A year passed before Judge Sabo got around to formally pronouncing the sentence of death. Mumia's first assigned appellate attorney did nothing for an additional year and had to be removed from the case by the appellate court. His replacement counsel required another year to reconstruct events and file the necessary papers. Part of that reconstruction was an affidavit from Mumia's trial attorney testifying to the number of African Americans who had been removed from the jury. Due to the passage of time, the Pennsylvania Supreme Court disregarded the affidavit, alleging, without support in the record, that his memory had faded in the interim. All relief was denied. Just four justices, the minimum number required, signed the court's Opinion. One of the four should have clearly disqualified himself since he was involved in a direct and personal confrontation with Mumia, but didn't. The chief justice, an African American, inexplicably removed himself from the case, as did another justice, also without comment. That justice had been accused of racial bias by the chief, and was later prosecuted for a minor drug offense, convicted, and subsequently removed from the bench following impeachment by the Pennsylvania Senate.
The court's Opinion, a particularly vituperative 15-page document, possibly the result of Justice McDermott's personal encounter with Mumia, rejected all of Mumia's claims respecting constitutional and trial errors. Sanctioned were the prosecutors racist use of peremptory challenges, the court's deprivation of Mumia's right to defend himself and be present, and the improper cross-examination of both Sonia Sanchez and Mumia. Most remarkably, the prosecutors argument to the jury that Mumia would have appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final, was upheld. That precise argument, undermining the need of the jury to confront the finality of what they were being asked to do, was specifically rejected by the United States Supreme Court in 1985. Earlier the Supreme Court of Pennsylvania reversed a state conviction which, ironically, was based on a summation given by the very same prosecutor using the nearly identical argument he made in Mumia's case. The court chose to ignore both these precedents and affirmed Mumia's death sentence.
Mumia fared no better with the U.S. Supreme Court. It refused to even consider his appeal. However, that same year it accepted, and decided favorably, a case in which a member of the Aryan Brotherhood, a white racist organization, complained that the prosecution had improperly used the fact of his political association against him in the penalty phase of the trial. Ruling that the First Amendment to the Constitution bars such evidence, the court reversed his death sentence. Mumia's petition for similar relief was denied without comment.
Now, more than 12 years after his conviction, Mumia is seeking a new trial in the state courts of Pennsylvania. If denied, he will file a habeas corpus petition in the federal courts. However, new restrictions imposed by the U.S. Supreme Court on habeas corpus severely restrict his ability to obtain any relief.
For the first time his case is being investigated. Already evidence has been found in support of his innocence. However, investigating his case more than a decade after the event has proven both difficult and expensive. While a death warrant has not yet been signed by the governor, there is the imminent danger that in early 1995 an execution date will be set since Tom Ridge, the Governor, ran, in part on expediting executions. Since Mumia is near the top of the list of those awaiting the signing of a warrant, we are in a race against time to save this innocent and, as the preceding pages attest, eloquent "voice of the voiceless."
In the words of Ossie Davis, co-chair of the Committee to Save Mumia Abu-Jamal, "We gotta fight!"
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