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Articles David Lindorff's "Killing Time" New Mumia Abu-Jamal book: Strong on facts but fundamentally flawed BY JEFF MACKLER [Mumia Abu-Jamal is an award-winning journalist, author and political prisoner on Pennsylvania's death row for 21 years. His struggle for justice is supported by the European Parliament, Amnesty International, the Japanese Diet, the 1.8-million member California Labor Federation, hundreds of U.S. and international trade union bodies, Nelson Mandela, French president Jacques Chirac, actors Ossie Davis, Danny Glover and Alice Walker, and by tens of thousands of individuals and organizations dedicated to democratic and human rights across the globe.] David Lindorff's new book, "Killing Time: An Investigation Into the Death Row Case of Mumia Abu-Jamal" [Common Courage Press, 345 pp., Monroe, Maine] offers a detailed but often flawed account of the 1982 frame-up murder trial orchestrated by a combination of Philadelphia police, prosecutor Joseph McGill and presiding Judge Albert Sabo. Lindorff concludes without equivocation that Mumia was the victim of a massive frame-up. He affirms what Mumia's supporters have known for a decade and longer, that the prosecution's two "eyewitnesses," prostitute Cynthia White and convicted arsonist/cab driver, Robert Chobert, were likely not on the murder scene, saw nothing and were threatened, intimidated and forced to lie on the witness stand in order to avoid imprisonment. Lindorff demonstrates in great detail that the infamous Judge Albert Sabo, who had sentenced more people (the majority Black) to death than any sitting judge in the United States, was prejudiced in the extreme against Mumia and his attorneys. He recounts the measures undertaken by state prosecutor Joseph McGill to prevent the jury from hearing critical testimony that refuted the prosecution's case and he exposes the corruption of Philadelphia police who conspired, among other calumnies, to fabricate a confession by Mumia. But Lindorff's book is marred by fatal errors of fact and judgment. He rejects, without serious investigation or argument, the central and well-documented case scenario presented by Mumia's attorneys today, that professional mob hitman and police-hired killer, Arnold Beverly, not Mumia, killed Police Officer Daniel Faulkner on December 9, 1991. He rejects both Beverly's confession and the lie detector tests that affirm its validity. Lindorff's effort in this key area renders his book and motives suspect as best. On page 25 he states, "The difficulty with this account," that is, that Beverly is the killer, "spare at it is, is that most of the witnesses in the case say that they saw Abu-Jamal, or someone in any event, running across the street BEFORE the shooting began. Abu-Jamal claims he heard 'what sounded like gun shots' PRIOR to his getting out of his cab." [Emphasis in original.] Let's examine this line of argument. In regard to the prosecution's two eyewitnesses, White and Chobert, it is now virtually certain that neither was on the murder scene or saw anything. Lindorff himself demonstrates this quite effectively basing himself on the testimony of several other witnesses and on the contradictions in both White and Chobert's testimony wherein neither saw the other at the murder scene although both claim to have been there. The defense team has gone further. They have produced new witnesses whose testimony specifically excludes White and Chobert being at the murder scene. Evette Williams, in a sworn affidavit, states that Cynthia White, a prostitute and petty-criminal with multiple convictions and outstanding warrants, told her that police officers threatened White with indefinite incarceration unless she agreed to falsely identify Mumia as the killer. Williams and White were prison mates at that time. Similarly, Robert Chobert told a defense investigator that, contrary to his trial testimony, neither he nor his taxicab was on the murder scene and that he saw nothing. Lindorff also details the evidence proving that Chobert's testimony was perjured. Thus, at least in reference to the state's only eyewitnesses who claim to have seen Mumia at the murder scene, the case against Mumia disappears. Lindorff also carefully evaluates the testimony of other witnesses who claim to have seen one or another part of the Faulkner murder but who did not specifically identify Mumia. He demonstrates that most all of their testimony is either flawed or highly questionable. In fact a careful examination of Lindorff's own research and what is now known about the case as a whole leads one to the conclusion that the Beverly's confession is quite credible. But Lindorff, for no apparent reason, shrinks from what a careful reader could easily conclude from his own work. Mumia's attorneys present a compelling case that Mumia appeared at the murder scene AFTER the murder. Their detailed diagram of the murder scene, in conjunction with a wealth of additional evidence,Ê sharply distinguishes between the location of Beverly before and during the murder he committed and Mumia, who arrived after the murder. The location of Mumia's cab (found with the key in the ignition and the engine running), based on the testimony of the taxi company that eventually retrieved it, is additional confirmation of the separate and distinct locations of Beverly and Mumia. Contrary to the original testimony of Chobert and contrary to the testimony of witnesses who stated that the shooter(s) ran away, Mumia ran nowhere, being himself almost fatally shot, not by Police Officer Faulkner, but by a Beverly police accomplice at the murder scene. Again, Lindorff's effort to refute the Beverly confession stands in sharp contrast to many of the facts that he amply provides in his book that repudiate the police version of Faulkner's murder and are consistent with the account provided by Mumia and his legal team, that is the Beverly scenario. Lindorff goes to some length to cast doubt on Billy Cook's affidavit [Cook was on the murder scene and is Mumia's brother], stating that his business partner Kenneth Freeman admitted to Cook that he was one of the two killers of Faulkner. But Cook's separate trial for assault on Faulkner revealed, contrary to police and prosecution arguments in Mumia's trial, that Freeman WAS on the murder scene and a passenger in Cook's car. Indeed, the temporarily driver's license found on Faulkner's body was loaned to Freeman by its owner, Arnold Howard, who testified to this fact under police interrogation. All sides to the dispute agree, including the police, that Howard, who had an ironclad alibi, was not at the murder scene. Again, Lindorff makes the same point regarding Freeman's presence at the murder scene. Further, newspaper reporter Linn Washington, who investigated the unprotected murder scene just a few hours after the killing, signed an affidavit that largely confirmed Cook's statement that after he was struck on the head by Faulkner, he returned to his car in an effort to find some form of identification. Washington states that he saw blood in the back seat area of Cook's car. Cook states that he was leaning over the back seat looking for identification. The above again appears to validate Cook's statement's regarding when bullets were fired, Mumia's absence from the murder scene and other facts consistent with the Beverly confession. To further refute this confession Lindorff relies heavily on information he claims to have attained from Mumia's former attorney Leonard Weinglass. He quotes Weinglass as saying, "The Beverly strategy had long been dead. It was killed by Mumia in 1999 when he decided to let [Rachel] Wolkenstein and [Jonathan] Piper [who advocated for the strategy] quit." [Brackets in original, p. 260.] This is a strange assertion indeed. Since his removal from the case Leonard Weinglass has steadfastly stated that he will not comment on Mumia's case other than to insist on Mumia's innocence. Weinglass told this writer that the statements attributed to him in the book did not reflect the substance of the interview he gave to Lindorff. Since Lindorff's book was published Weinglass has refused comment on it and has refused to return Lindorff's phone calls. In fact, the only comments Weinglass has made publicly are to consistently reaffirm his belief in Mumia's innocence. Lindorff is agnostic on this very issue. While he states definitively that Mumia was framed by the police, judge and prosecution, that his trial was a travesty of justice, that police lied, that Judge Sabo made overtly racist comments, that critical evidence was fabricated, that Federal District Court Judge William H. Yohn made grievous errors of fact, and more, he nevertheless concludes that, on the critical issue of innocence, he is uncertain. [Judge Yohn's 2002 decision affirmed Mumia's State Court murder conviction but overturned the imposition of the death sentence. The defense has appealed the former while the prosecution has stated that it will appeal the latter.] Lindorff "leans toward innocence," he tells us but he maintains his doubts. He contrasts the responsibilities of what he calls objective journalists like himself, to what he describes as Mumia advocates, as if there is a gap between the two, as if journalists are free from prejudice as opposed to advocates who are bound by their political commitment to Mumia's freedom regardless of the facts. But here, Lindorff departs from the very principles he claims to uphold. If indeed, the facts, as he recounts them in great and detail are true, then America's proclaimed legal standard of innocence must be applied. Lindorff demonstrates far "beyond a reasonable doubt" that nothing even resembling a credible case has been made against Mumia. Yet he recoils from the obvious conclusion that justice and law require, a verdict of "not guilty." He documents a frame-up of massive proportions in which the prosecution's only "eyewitnesses" stand exposed as liars yet he nevertheless proclaims neutrality. To bolster his position Lindorff launches into a spurious attack on the credentials of Mumia's new attorneys Elliot Grossman and Marlene Kamish. A strange logic is employed wherein their alleged lack of death penalty experience somehow indicates that Mumia's innocence is in question. One could only wonder if Lindorff would argue, equally absurdly, for Mumia's innocence based on the extensive death penalty experience of his former attorneys! The personal attack on Mumia's legal team, separated entirely from the evidence they present proving Mumia's innocence, reveals that Lindorff is far from the "objective" journalist he claims to be. One can only wonder why Lindorff chose to discredit himself by engaging in such low level attacks. Would the fact that Mumia has now included Robert Bryan to his legal effort, a noted defense attorney who has been chief counsel in 100-plus death penalty cases, change Lindorff's conclusions? Or would the fact that the new legal team has regularly consulted in every step of their research and legal arguments with leading specialists in death penalty cases, alter Lindorff's views? The answer to these questions is obvious. It is not the credentials of Mumia's attorneys that Lindorff objects to, it is their legal and factual arguments, which he dismisses almost out of hand. Lindorff has the audacity to condemn Mumia's attorneys for their refusal to grant him interviews. But he neglects to mention that before the appearance of his book he engaged in vitriolic attacks on Mumia's legal team in Salon magazine indicating that his intention was anything but objective journalism. Similarly, Lindorff takes a jab at Mumia himself, scoring him, gently, of course, for failing to answer his "Express Mail" questions. David Lindorff's book does include a valuable "Insert" that has been appended to the front pages of his work. Here he discusses some fundamental errors of fact in the decision of Federal District Court Judge William H. Yohn. He demonstrates that Yohn's exclusion of three key studies demonstrating a pattern of illegal exclusion of Blacks from Philadelphia juries was invalid. Yohn's December 18, 2001 decision rejected the conclusions of these studies on the ground that they did not include the specific time period, 1982, when Mumia's trial took place. They were, according to Yohn, therefore irrelevant. The studies included data on the general exclusion of Blacks from Philadelphia juries (Cornell Law Review study) and similar data demonstrating racist exclusion that was collected in sub-studies evaluating the tenure of Philadelphia district attorney Ed Rendell and Philadelphia prosecutor Joseph McGill. Lindorff demonstrates effectively that the three studies cited not only covered the time period of Mumia's trial but they included the actual data on the jury selection in Mumia's own trial. Thus, contrary to Yohn, these studies were relevant and did apply to Mumia's trial where 11 of 15 Black jurors were excluded by the prosecution based on preemptory (and illegal) challenges of Black jurors. The results of Mumia's 1982 trial should have been voided and a new trial granted, according to Lindorff, based on the U.S. Supreme Court's Batson decision that banned the exclusion of jurors based on race. Lindorff's analysis of Yohn's factual findings both exposes the Judge's flawed decision and confirms the considered judgement of the legal teams, past and present that correctly presented them to Yohn in the first place. I have been informed that the brief to the U.S. Court of Appeals, Third Circuit, in preparation by Mumia's attorneys similarly challenge Yohn's unfounded exclusion as "irrelevant" the three critical studies. Lindorff strongly implies that minus the Batson issues, the remainder of Yohn's rulings rejecting Mumia's federal habeas brief, with some important exceptions that he discusses in detail in a separate chapter, meet the test of the law. Indeed, Lindorff's assessment of Yohn's rulings seems to vary significantly depending on whether one is reading the opening "Insert" or the material on the same subject he offers in Chapter 10 of his book. In truth, Yohn's rulings, in regard to virtually every issue he adjudicated, reveal an extreme and unjustified effort to proclaim as "irrelevant" Mumia's carefully presented constitutional and other legal claims challenging the validity of his conviction. Yohn's rulings are based on his own interpretation of a series of laws, and judicial interpretations that become law, that a racist and classist criminal justice system has evolved over decades and longer. To be precise, there is nothing absolute in the law and in its interpretation. No law stands above the relationship of forces in class society. Racist laws were passed and enforced with impunity until a mass civil rights movement compelled their repeal. The right of unions to strike or to collective bargaining was ruled illegal until workers "legalized" these rights on the streets. The McCarthy witchhunt era produced a plethora of laws holding that individual liberty was subordinate to "national security." Virtually every one was repealed in the face of mass social struggles for civil rights and against the war in Vietnam. Mumia has presented an abundance of legal arguments that demand his immediate release. He is not lacking in "legal" authority. Indeed, his freedom is contingent on the emergence of a social movement whose power makes the price of his illegal execution or continued incarceration to high to pay. "Power," said nineteenth century abolitionist Frederick Douglas, "concedes nothing without a demand." Justice for Mumia, requires a powerful challenge to the racist criminal "justice" system that Yohn and his rulings personify. Yohn, in a separate opinion, citing the infamous U.S. Supreme Court Herrera decision, wherein "innocence is no defense" held that even if the Beverly confession was "credible," it remained "irrelevant" because of its allegedly late submission. Following the same logic a Texas court two years ago ordered the murder of Shaka Sankofa who presented irrefutable evidence of innocence that satisfied the arresting sheriff and the jury that convicted him. Sankofa was nevertheless executed "according to the law," because this evidence was submitted beyond the statutory deadlines. The legal requirements of "finality" were satisfied and the innocent Sankofa was murdered! Yohn also cities the reactionary 1996 Effective Death Penalty Act that for the first time reverses the historic presumption of innocence that "compelled" Yohn to accept the racist Judge Sabo's every ruling, however flawed. Similarly, Philadelphia Common Pleas Court Judge Pamela Dembe, citing "the law," rejected the defense affidavit of court stenographer Terri Maurer Carter who overheard, Judge Sabo state in his chambers in regard to Mumia's case, "Yeah, and I'm going to help 'em fry the nigger." In this instance, Lindorff proudly cities, likely for the first time, the name of another witness who overheard Sabo's racist statement, a Philadelphia Judge who all but confirmed its accuracy. But Dembe, also citing "the law" ruled that even if Sabo had made the racist remark stating his intent to help "fry Mumia," the remark was irrelevant because there was no showing that Sabo's courtroom rulings were racist! This statement is evidence in the extreme demonstrating that the law in all its "majesty" allows openly racist judges to practice the trade. Judges Dembe and Yohn would have us believe that Black America should accept without question overtly racist judges provided only that they were "objective" in the courtroom. Lindorff himself oddly concludes his book in wonderment. After summarizing his various possible scenarios - that Mumia is an innocent victim of a frame-up, that Mumia shot Faulkner in self-defense, that Mumia shot Faulkner and someone else "finished the job," or that "several well-meaning but heavily armed people [including Mumia] all doing what they thought was right, with tragic consequences for all of them," killed Faulkner - he moves on to a final possibility. He writes on his final page: "Maybe (though I don't think the scenario claimed by Beverly makes sense), there is even something more to the story. Something darker ---as suggested by the cryptic and wholly unjustified gaps in Faulkner's FBI file and some of the peculiar behavior of police investigators in this case, as well as by the never-explained evidence of other bullets having hit doors and windows remote from Faulkner's body, and the mysterious camera in his car." Here Lindorff includes in his own cryptic and barely audible manner ("gapsÉFBI fileÉpeculiar police behaviorÉbullets hitting doors and windowsÉmysterious camera") and without any substantive examination, the vaguest of references to a portion of the new evidence presented by Mumia's current legal team that demonstrate the validity of the Beverly confession that he rejects. He wonders if the legal team's assertion that corrupt police killed Faulkner because he stood in the way of their illegal activities has substance ("gaps in Faulkner's FBI file"). At the time of Faulkner's murder the FBI and U.S. Department of Justice were involved in a long-term investigation of Philadelphia police corruption ranging >from involvement in illegal gambling and prostitution to intimidating witnesses, planting evidence and otherwise using brute force to achieve desired results. It is well known that cops who did not go along were sometimes found shot to death, ambushed in quiet places under suspicious circumstances. Lindorff wonders why every "witness" scenario, however questionable, accounts for at best a few bullets being fired. He should have taken a closer look at the filings of Mumia's attorneys whose work he so summarily derides. These filings clearly show that if the prosecution scenario is combined with the undeniable physical evidence found at the scene, at least eight bullets were fired. The prosecution's doctored scenario accounts for only six (one bullet found in Mumia's body, the rest allegedly fired from Mumia's 5-chambered revolver). That is, the prosecution's scenario is demonstrably false. But instead of pointing this out Lindorff prefers to vaguely hint at alternative "dark" possibilities and unexplained bullets. This also stands in sharp contrast to Lindorff's citing the work of Mumia's legal teams, past and present, that demonstrate that the police never proved that either Faulkner or Mumia fired any bullets. The police failure to conduct the most elementary gunpowder residue tests on either Faulkner's or Mumia's hands has never been explained. Mumia's attorneys (who have presented testimony that Faulkner was taken to the hospital with his gun still holstered, as opposed to policeÊ accounts that had Faulkner firing a single bullet before being killed by Mumia), assert that the only plausible explanation is that neither fired their revolvers. And "the mysterious camera in Faulkner's police car?" Lindorff only lets us wonder what he is referring to. Only those familiar with the intricate details of the case would understand that it could have been used, in collaboration with the ongoing FBI investigation into Philadelphia police corruption, to catch crooked cops in the act of commission of crimes. Could these be the cops involved in the killing of Faulkner or the shooting of Mumia? If Lindorff is correct that key prosecution witnesses lied under police pressure, while others, White and Chobert, were likely absent entirely from the murder scene, the central evidence for Mumia's guilt disappears. In the face of this evidence (that the 1982 jury never heard) would any jury of Mumia's peers fail to conclude that reasonable doubt was a certainty. Lindorff's failure to draw the obvious conclusion indicates that his objectivity is sorely lacking. [Originally published in Socialist Action newspaper, January 2003.] © January 2003 Jeff Mackler