Who Is Mumia?
How Can I Help?
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 inmate 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 Legal 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. In almost every
instance Mumia's defense team responded to the panel's
questions and arguments without hesitation and with
citations buttressing their central arguments.
The day's events left little doubt that these
Judges, Chief Justice Anthony Scirica and Judge Robert
Cowen (Reagan appointees), and Judge Thomas Ambro of
the Clinton era, had carefully read the voluminous
briefs submitted by both sides and thoroughly
researched the history of the constitutional issues
involved, including 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 staring/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 conservative 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 proceedings 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. Byran'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,
granting each side one hour as opposed to the
traditional 30 minutes.
Frame-up trial under "hanging judge" Sabo
In a 1982 frame-up trial presided over by now deceased
"hanging judge" Albert Sabo, Mumia Abu-Jamal, an
award-winning radio journalist, was convicted of the
Dec. 9, 1981 killing of Philadelphia police officer
Daniel Faulkner. 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.
More than a third of the 35 Philadelphia police
officers indicted at that time on charges of
corruption, witness intimidation, falsification of
evidence, and involvement in drug peddling and
prostitution were involved in one way or another in
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 record 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 overheard 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 n****r."
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 disability was accepted.
The May 17 hearing began with prosecution designee
Hugh Burns presenting the state's case to reinstate the
death sentence and execute Mumia by lethal injection.
A 2001 federal district court decision 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
conclude 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 ambiguous instructions had
been struck down by the courts.
If Mumia wins on this issue the state 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 instead be
limited to choosing a sentence of either life in
prison or death.
Prosecutor McGill 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 keeping 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 option, perhaps its magic weapon in turning and 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, removal with no stated
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
percent 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 prosecutors, in
accord with an overtly racist 1982 State Supreme Court
decision in the case of Commonwealth v. Henderson,
which held, "The race, creed, national origin, sex or
other similar characteristics 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 prosecutor
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 consideration 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
consideration. 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 presiding 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 possibility,
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 evidentiary 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
Perhaps the most stunning dispute of the day took
place over the defense contention that prosecutor
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 challenged
to justify why this statement did not constitute a
violation of the U.S. Constitution. The justices were
referring 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
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 trial in another case
where McGill dutifully offered the jury virtually the
same "appeal after appeal" summation.
If the present judges apply this precedent, not to
mention the constitutionally-mandated "reasonable
doubt" imperative, Mumia's guilty verdict will be
voided and he will be granted a new trial, a trial
during which all the evidence of innocence that had
been previously suppressed can be submitted to a new
Of course, should the Third Circuit take this course
of action, it is likely that the state will appeal the
decision to the U.S. Supreme Court, placing Mumia's
fate once again in the hands of the reactionary
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 applied,
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 makes 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
It was Judge Sabo, whose version of "the law" was
applied nearly 100 times against defense motions
protesting his violation of Mumia's constitutional
rights, who first indicated how the system works. 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 presented 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
"presumption 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 abrogation 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
percent 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
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 falsification 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 obliterated
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 government 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. government.
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
3500 people (mainly Blacks and other oppressed
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 prosecution manipulations and falsifications designed to buttress a scenario that cannot stand up to the massive accumulations of facts that were known at the time and subsequently unearthed. The facts are simple enough. 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 demanded that the driver, Mumia's
brother Billy Cook, present his driver's license. Cook did so, but gave Officer Faulkner, who had put in a call for police back-up, a temporary license 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 immediately found by the police in Faulkner's clothing, but only reported to the defense 12 years later.
An argument ensued and Faulkner bludgeoned Cook with his 17-inch flashlight. Mumia, parked in his taxicab a distance away, observed 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 several 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 accumulated 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 Polokoff
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
Chobert changed his testimony three times to conform
to the police scenario. The photographs recently made
public by Polokoff 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 Schiffman, a German researcher who wrote his PhD. thesis on the case, again demonstrates the impossibility that Mumia murdered Officer Faulkner.
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,
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 a 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.
But 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 reinvigorate 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 demonstrated 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 Mobilization to Free Mumia Abu-Jamal, freemumia.org; 415-255-1085.