Censorship by Execution?

The Case of Mumia Abu-Jamal, Philadelphia's Black Journalist on Death Row

By ERIC FRANCIS

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DIGGING into the notorious death penalty case of journalist and broadcaster Mumia Abu-Jamal, I expected, at minimum, to find some balance on the issues, some sense that, if the state of Pennsylvania was ready to execute Jamal for shooting a police officer first in the back, then in the face, that there would at least be some evidence that he really committed the crime: evidence as defined by law and as obvious to common sense. And a motive for committing the crime, too.

Over the course of two years, I spoke with some of Mumia's closest supporters, his attorney, and read case materials from the history of the proceedings against him. I interviewed people who had followed the case from its early years, traveled to Philadelphia, explored the crime scene and spoke with dozens of people with knowledge of the situation.

Searching for the actual controversy, my quest was for something in the state's case to refute the numerous and constant assertions by his international coalition of supporters that Jamal, a clear-headed, intellectual and vocal critic of government misconduct and police brutality, was framed for the 1981 shooting of Philadelphia police officer Daniel Faulkner. Jamal has been on death row since his 1982 conviction for Faulkner's death, and there have been no other arrests in connection with the killing.

To be sure, Jamal, who had no prior criminal record, does not fit the typical profile of a death-row inmate; for one thing, you're actually reading about him. But Jamal's life has some unusual elements, including a high-profile public service career. At the time of his arrest, he was president of the Philadelphia Association of Black Broadcasters, working several jobs to support his wife and family. His photograph had recently appeared on the cover of Philadelphia magazine as one of the "people to watch," which cited his "eloquent, often passionate and always insightful interviews [which] bring a special dimension to radio reporting." In his career, Jamal had interviewed Julius Erving, Bob Marley, Alex Haley and a variety of other international figures.

He relentlessly pursued his stories, and at the time of his arrest was one of the few people investigating a case in which the Philadelphia police unloaded 10,000 rounds of ammunition into the home of a religious organization, after which nine members of the group were convicted of murder after one police officer was shot in the back, probably in the hailstorm of "friendly fire." Within hours of the arrests, police had literally bulldozed the crime scene, destroying the house, the evidence, and any chance of vindicating the nine people who were later sentenced to 30-100 years in state prison for shooting one officer.

It was while Jamal was in the process of covering these events that he was found seriously wounded at the scene of an unrelated, early-morning incident in which Officer Faulkner was shot.

Jamal's supporters say that, after a decade of police and FBI surveillance dating to his early teenage years when he was a member of the famed Black Panthers, the outspoken writer and activist was charged with Faulkner's murder, convicted in a sham trial, and is now being held captive for his political views and gutsy journalism. Jamal remains prolific and outspoken despite his predicament, though within the correctional system he has faced harsh punishment for exporting his views outisde prison walls. He is author of ongoing news reports, as well as two internationally-published collections of journalism, Live from Death Row (1995) and Death Blossoms (1997), and in 1998 released a CD entitled "All Things Censored," which finally makes available his commentaries that were banned from National Public Radio after intense pressure by police lobbyists and then-Senator Bob Dole.

While most of Jamal's reporting is incisively critical of racism, the burgeoning police state and the prison culture that's taken root in America, if you analyze the chess board, the "censorship" issue at stake really appears to be that Jamal is the one individual who can expose the rather apparent cover-up around his own case -- though in court rather than in print.

Dead men tell no tales and have no legal standing, and as a man condemned, living on death row's terrifying line-to-be-killed, Jamal is as far from the witness stand, the defense table and a new jury as he can possibly be while still alive. State judges have refused to give him a new trial despite numerous revelations of alleged judicial misconduct and many documented Constitutional violations by the police and courts surrounding Jamal's arrest and original trial. With his federal appeals and civil rights claims running out, with his state appeals completely exhausted, and with increasing, indeed, it seems at times jovial enthusiasm for a faster death penalty in the legislatures and the courts, many observers fear it's unlikely that he will get a new trial. But many others, it's worth mentioning, feel it's impossible that he will not.

"The case has come to be a certain trial of strength between the people and the government on this whole issue," says Clark Kissinger, a journalist and scholar with the organization Refuse & Resist, which has been carefully tracking and publicizing Jamal's case for years. "It's very embarrassing for them when they have to come forward and admit that there was a wholesale miscarriage of justice, and that it was probably done deliberately."

Kissinger remains realistic that it will be difficult for Jamal to get a new trial, but persists in his work, aware of the lager picture. "The problem with Mumia's case is that because it's become international, it's calling the whole program of faster executions with fewer appeals into question. And it's sort of become a point of principle with them that Mumia must die. Because if he doesn't, it vindicates everything that everybody's been saying. There is a much bigger political program at stake in Mumia's case."

THERE WERE NO executions in the United States between 1972 and 1976, after the Supreme Court ruled in the famous Furman case that capital punishment was a judicial free-for-all. At the time, most states had no sentencing guidelines, and judges and juries had what turned out to be arbitrary power to kill or let live many convicted felons. With the January 1977 execution of Utah double-murderer Gary Gilmore, the death sentence returned to American soil, even as European nations one by one dropped the practice as unbefitting civilized culture. And while capital punishment has been gaining momentum through the increasingly violent Clinton years, and is now attached to some 30 federal crimes and practiced in 38 states, very recently it's hit choppy waters politically, legally and morally.

In one of the most glaring examples of a problem, journalism students at Northwestern University in Chicago have been responsible for "exculpating" -- that's legalese for, "sorry, wrong guy" -- three death row inmates, who, it turns out, didn't do whatever the jury had sentenced them to die for -- perfectly false judicial findings which their failed appeals could not overturn. As Jamal jokes in a commentary on his All Things Censored CD, "Why do you think they call it capital punishment? Those who don't gots the capital gets the punishment."

But sometimes not. Earlier this year, investigative efforts by Medill School of Journalism students at Northwestern freed developmentally-disabled death-row inmate Anthony Porter, falsely convicted in 1982 of double murder. After some old-fashioned, feet-on-the-street, hands-in-the-documents reporting, re-enacting the crime scene and putting it all together, the students discovered blatant errors in the prosecution's case, findings which were instrumental in triggering the chain of events leading to Porter's release earlier this year, as well as the arrest of a real suspect, whom the students had located in Milwaukee, and from whom they had obtained a confession.

"Anthony's lawyer stopped investigating because the family could not keep paying him," says Shawn Armbrust, one of the Medill students who helped break the case. "They sold their house to pay this man, and he just stopped investigating. I've always been opposed to the death penalty because I think it's barbaric. But I think this case taught me that morally it's still wrong, and practically, it's not working. However you feel about it, no one wants innocent people to die. No one wants poor people to be executed at a rate nine times more than everyone else. You have to think about the reality, regardless of whether you agree with the 'eye for an eye concept'."

Armbrust, who solved the case working with five fellow students, her professor and a private investigator, is planning on attending law school after she graduates this month.

"Cases like this are the ones than turn narrow-minded people around, and that, I think, will produce real change," she said, adding, "my dad is now against the death penalty. All of his friends who were making fun of me for doing this are now calling and saying, 'You've done the most amazing thing. I don't know what I think about the death penalty any more'. When you prove to people that the death penalty doesn't work on a human level, then they start to rethink it."

After a similar project in 1996, Medill students, led by the same journalism professor, David Protess, solved the case of the "Fort Heights Four," a group of innocent black defendants whom city police had been picked up for a murder in 1977. Digging through government documents in an old storage room, the students found the police's "street file," which had the names of people who really committed the crime, suggesting that police knew the four men they charged were innocent. While the Fort Heights Four were languishing in prison -- two of them serving on death row for 18 years -- the real criminals had killed again.

Incredible as this sounds, the overall statistics from Illinois, since executions resumed in there in the mid-1980s, are on a still more surreal scale: 12 of the state's death row inmates have been executed, while 12 others have been exculpated, and are today free. Many others are awaiting execution in this macabre, politically-charged lottery known as capital punishment.

SO, AS IT TURNS OUT, the international coalition lining up behind Jamal might not have such a crackpot theory after all, presenting compelling evidence both of serious problems in Jamal's original trial, as well as evidence that he is innocent. This coalition includes tens of thousands of supporters who attend regularly-held demonstrations in the US, Canada, Puerto Rico and other countries, as well as attorneys, civil rights leaders, musicians, scholars, the European Parliament, Amnesty International, and Danielle Mitterand, the widow of the former French President and death penalty abolitionist François Mitterand.

In the nearly two decades that Jamal has lived in a tiny cell, watching many of his fellow inmates go to their deaths, the house of cards built by the prosecution has slowly tumbled, but the courts have yet to take notice.

At about 4 a.m. Dec. 9, 1981, Jamal was found seriously wounded at the scene of Officer Faulkner's shooting. Faulkner had apparently shot Jamal, though even this is not known for sure. Jamal had stopped the taxicab he was driving to supplement his income after allegedly seeing Faulkner beating his brother, Billy Cook, with a flashlight so brutally that the flashlight was breaking apart and was covered with Cook's blood. But what happened next, as Jamal approached Faulkner and Cook, is unclear. There were no street lights, as the scene illuminated only by the red lights flashing on top of Faulkner's police car, making eye-witness identification of suspects tricky.

The most important element in the case against Jamal is a "confession" that he allegedly gave to police the night of the shooting. Yet the officers who heard the alleged confession reported it a full two months after the incident, and, coincidentally, only after Jamal had officially charged them with police brutality for the vicious beating he says he received at the crime scene and in the hospital waiting room after his arrest. Had there been a confession, surely it would have been headlines the very next day.

An official, contemporaneous police report by one of the officers who later implicated Jamal stated that the "male Negro made no statements" in custody. The attending emergency room doctor (where Jamal had been placed on life support and taken into emergency surgery because he had been shot in the chest and was likely to die) said nothing. Indeed, the doctor stated that Jamal was in no condition to say anything.

Court and police records indicate that Jamal "confessed" before the police read him any Miranda rights. But, since he fully understood his rights, it's highly unlikely that Jamal, a well-read Constitutional scholar and historian, would have said a word to police even if he had shot Faulkner.

Jamal, who had been robbed at gunpoint twice while driving a cab, was licensed to carry a handgun, which was found at the crime scene. Yet the bullet removed from Faulkner's brain was, in the original medical examiner's report, listed as .44 caliber slug. Mumia's gun was a .38, which could not have fired a .44. No tests have been performed that prove Mumia's gun fired the bullet which killed Faulkner, and the court allocated just $150 for defense expert witnesses (for a ballastician, a pathologist, an investigator and a photographer), a ridiculously small sum of money, since at the time a single expert witness for the defense would have cost at least $3000.

Police then lost the bullet which killed Faulkner, as were several other slugs recovered from the crime scene. Other evidence was withheld from the defense, including the existence of copper bullet jacketing recovered at the crime scene that even police admit could neither have been fired by Jamal's nor Faulkner's guns because both were loaded with regular, non- jacketed shells.

According to testimony which surfaced at the trial, Jamal's gun was not even smelled to see whether it had been fired at the scene. No tests were performed for gunpowder, lead traces, or burn marks on the officer's clothing, or on Mumia's hands -- among the most basic evidence police would need to collect in a firearms-related murder case to obtain an honest conviction. More recent forensic tests financed by the defense, which are being used in the pending federal petitions for a new trial, suggest that had the police followed these normal evidentiary procedures, they would have exonerated Jamal.

Jamal, who was denied his constitutional right to defend himself at his own trial, was banned from the proceeding after raising these issues and others. Jamal's current attorneys say that his original court-appointed lawyer interviewed no witness before they took the stand, and at trial, Jamal said he was unrepresented, which prompted the judge to remove him from the courtroom. In clear violation of state judicial procedure, the judge did not even allow Jamal to follow the proceedings from jail. Yet none of these issues were enough to persuade state appeals courts to overturn the conviction. Observers say that the Pennsulvania Supreme Couret, to which judges are elected for terms (rather than appointed for life), is influenced by police lobby organizations who contribute to judges' campaigns. One of these, the Fraternal Order of Police (FOP), is waging national publicity and fund-raising campaign to have Jamal executed. The FOP, meanwhile, officially endorsed the election campaigns of five of the seven justices sitting on the Pennsylvania Supreme Court, a court which has twice upheld the trial court's decision to convict Jamal.


IN 1996, A CRUCIAL prosecution witness, Veronica Jones, came forward and said that her trial testimony was a fake recounting of events to secure a deal on felony charges she was then facing. Jones testified in the 1996 hearing intended to determine whether the 1982 trial was fair, that she had seen two other men fleeing the crime scene. But, she said, she had concealed this fact at trial as part of her agreement with police. Though this testimony had been suppressed at the original trial by police, who had allegedly coerced Jones other witnesses to change their testimony, it's widely supported that one or two other men ran from the scene of the shooting, even though the jury never heard this information.

In 1982, Jones was a 21-year-old prostitute with two children. She was able to plea-bargain her felony charges after Jamal's conviction, and did not go to jail. However, moments after she testified at the special 1996 "fair trial" hearing, returning to her original version of events, she was arrested in the courtroom by two New Jersey police officers for allegedly passing a bad check at a liquor store years earlier.

According to the Oct. 2, 1996 New York Times, Leonard Weinglass, Jamal's lead attorney and a prominent death penalty defense lawyer, jumped to his feet and told Judge Albert Sabo that the arrest was "part of the long pattern of police intimidation" that began shortly after Officer Faulkner's death in 1981. But Sabo, who was presiding over the special hearing intended to determine whether the original trial over which he had presided 15 years earlier was fair, dismissed Jones's statements as inconsequential and "lacking credibility." As Jones, sitting on the witness stand, broke into tears when prosecutors announced the warrant for her arrest, Sabo, refusing to intervene, then said in open court, "Maybe she has good reason to weep."

"It's shocking what happened this morning in an open courtroom," Weinglass said to the crowd gathered outside the Philadelphia courthouse that day in October 1996. "You can only imagine what happened behind closed doors."

Sabo, a former sheriff's deputy who has since been removed from the bench, has presided over more trials resulting in death penalties than any other judge in American history. At one point, he had condemned 26 men to die, 24 of them black. He has issued 31 death sentences, many of which have been reversed on appeal for such blatant judicial errors as applying laws that were passed long after the crimes in question were committed.

A recent study published in the Cornell Law Review concluded that in Philadelphia, a black man is eight times more likely to be sentenced to death than anywhere else in the United States, including death belt states such as Florida, Texas and across the south, a fact of which the Pennsylvania bar seems fully aware; both city and state bar associations have called for a moratorium on Pennsylvania's death penalty until the process is studied and fixed.

In 1996, before Sabo's "fair trial" hearing, Jamal's attorneys filed papers to remove Sabo from the case, citing dozens of examples of his blatant bias against Jamal and other black defendants. According to the Philadelphia Inquirer, the problem had been so serious that even the city's zealous prosecutors "cautioned Sabo that his rulings might go too far in their behalf." In a later incident, six of the city's former prosecutors said in an affidavit that it was impossible for a defendant to get a fair trial in Sabo's courtroom.

Court records indicate that 11 prospective jurors were removed from the jury pool because they were black, and Sabo removed the only juror whom both the prosecution and defense agreed was qualified to hear the case. In a jury trial, one joror who does not agree with the verdict can stop the proceeding, resulting in a "hung jury" rather than a conviction.

Court records also indicate that distinguished members of the Philadelphia bar have said that Sabo was "referred to as a "prosecutor in robes," and is noted for assisting the prosecution in the course of trial."

Despite these arguments, Sabo ruled he was qualified to preside over the hearing intended to determine whether his original trial had been fair, at which he allowed no evidence into the record that contradicted the earlier guilty verdict and death sentencep; and he allowed the arrest of Veronica Jones in open court.

Meanwhile, the state's governor, Tom Ridge, has signed 162 death warrants. One hundred of those people have been people of color. Ridge has the distinction of being the first governor to achieve this dubious statistic.

Michael Sussman, a Harvard-trained federal civil rights lawyer, says, "I don't think there is a way to have a fair criminal justice system, frankly, and I've always viewed the issue this way: If you can't have a fair criminal justice system, you have to make a determination as to how far you're going to go with that system. Is that system going to be able to take someone's life? It's bad enough that it's unfair. We can't change that. But what we could say is there's a limiting principle here, and that's life. We're not going to let the unfair system take someone's life."

Sussman, a Constitutional attorney who has also defended a number of accused murderers, added, "The general consensus is that between 15 and 20 percent of people who are convicted of crimes did not commit the crime of which they were convicted. Criminologists who have studied it generally find that, and there is no strong reason to believe that it's different in death penalty cases."

Sussman said that police concocting stories of confessions are fairly commonplace. He gave the example of a person he was defending last year, an illiterate man who was alleged to have written and signed a murder confession. The three experts who testified that he was illiterate. "He allegedly read the confession out loud, according to the police. He can't read. He's been in jail for 13 years."

Meanwhile, in Illinois, two of the men freed from the Illinois death row -- Rolando Cruz and Alejandro Hernandez -- had their convictions reversed, which were based on a concocted confession police took from Cruz. In the aftermath of the pair's third trial, at which they were finally acquitted long after the real attacker had been convicted and imprisoned, a special grand jury indicted three former prosecutors and four former sheriff's deputies, charging them with perjury, obstruction of justice and conspiracy to frame Cruz. Their trial, in Du Page County, Illinois, is now about to wrap up.

And in Nebraska, the state legislature recently passed legislation calling for a moratorium on executions, pending a two-year study and review of the death penalty.

Yet despite these problems, 3,500 prisoners live under a sentence of death, and the United States, the only Western country with a peace-time death sentence, is one of five countries known to execute juvenile defenders.

The tide may slowly be turning, but at this point, the fate of Mumia Abu-Jamal is in the hands of the federal judiciary, which, fortunately, has overturned 38% of the death sentences handed down by the state courts.

"That is a shocking statistic," says Len Weinglass, Jamal's lead attorney, a death penalty defense specialist who has personally escorted nearly two dozen people from the gallows through his legal efforts, "because what that indicates is that a very high percentage of these cases are flawed, as was Mumia's. And I think that if we have the resources to go forward, that Mumia will be vindicated as well." ++

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Additional research, translations and photography by Maria M. Henzler. Photo and Internet research by Keiko Ito. Thanks to Stephen Bergstein for research and editorial support. Thanks to Cornell Law Review, The Innocence Project at Northwestern University Law School, and Medill School of Journalism for their assistance.