The Case Put Forth By Abu-jamal A City Known For Past Police Excesses Finds Itself Part Of A Death-row Inmate's Case.

Posted: July 23, 1995

The image of Philadelphia justice plays a central role in the belief of thousands of people across the United States and the world that death-row inmate Mumia Abu-Jamal is innocent and did not get a fair trial.

The Philadelphia police who arrested him in 1981 had a reputation, acquired especially during the years in which Frank Rizzo was police commissioner and mayor, for toughness bordering on brutality. Even today, scores of drug convictions are being overturned because Philadelphia police officers planted evidence on innocent people, then lied about it in court.

Albert F. Sabo, the Philadelphia judge in Abu-Jamal's 1982 trial, has presided over more death-penalty convictions than any other judge in America.

The Philadelphia District Attorney's Office did (and does) seek the death penalty in far more cases than prosecutors elsewhere in Pennsylvania. Of the state's 194 death-row inmates, 105 are from Philadelphia.

And Abu-Jamal, an accomplished though unemployed radio journalist who could not afford a lawyer, tried to defend himself but was not allowed to by the judge.

"My client is demonstrably innocent," said defense attorney Leonard Weinglass, who filed a 300-page appeal last month - just as Abu-Jamal's death warrant was being signed by Gov. Ridge, who was elected last year on a pro- death penalty platform.

To his supporters, Abu-Jamal's prosecution is a compelling drama of racism and gross injustice. Yet to others, including the jury that took just four hours to convict him, the case against him was overwhelming and will be difficult to refute.

While the new appeal raises many questions about the evidence, most of them were raised by his defense lawyer at Abu-Jamal's 1982 trial and were rejected or discounted by the jury. So far, there have been no new witnesses brought forward, no recantations, no dramatic discoveries - and the burden of proof has moved from the prosecution to the defense.

In addition, 13 years after the killing of Police Officer Daniel Faulkner, the two people who know most about what happened that grim winter night still have never told their stories.

Abu-Jamal, who was found wounded four feet from the dying policeman, did not testify in the trial and has not spoken with reporters about what happened. Equally silent has been Abu-Jamal's brother, William Cook, the only other person in a position to know how Faulkner was killed.

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More people around the world probably know (or think they know) Mumia Abu- Jamal than know "America's Mayor," Ed Rendell. In England, Germany, South Africa and Japan, Abu-Jamal is widely described as the premier "political prisoner" on America's death row. Since its release in the spring, his book, Live From Death Row, has sold 32,000 copies, his lawyer said.

In recent days, Harvard philosophy and religion professor Cornel West has joined his legion of supporters. And this month, the New York Times published a plea by respected novelist E.L. Doctorow, asking that Abu-Jamal be given a new trial and reciting a list of alleged problems with the case.

The case that has attracted such passions on both sides began when the journalist-turned-cab-driver met Officer Faulkner at 13th and Locust Streets on Dec. 9, 1981. Abu-Jamal's brother, William Cook, had been pulled over to the side of Locust Street at almost 4 a.m. by Faulkner, 25, a decorated officer with five years' experience. Cook was in a green Volkswagen, Faulkner in his patrol car.

The two got into a verbal fight, then a physical one after Cook got out of his car. Faulkner was handcuffing Cook when the first shot rang out.

Abu-Jamal, a radio journalist down on his luck, was driving a cab on the night shift when the shooting occurred. It remains unclear as to why he was passing Locust and 13th at that moment. What is clear is the intense bond between the two brothers.

Cook's attorney, Daniel Alva, said he had always known William Cook by the name "Wesley," Abu-Jamal's given name. After the brothers were arrested, Alva asked Cook why he called himself Wesley. Cook replied that he loved and respected his brother so much that when Abu-Jamal took his Muslim name, Cook took Abu-Jamal's discarded name.

When police cars swarmed to the scene, a critically wounded Faulkner lay on the ground and Abu-Jamal, a bullet in his chest, sat four feet away. Cook, his back against a wall, stood nearby.

The prosecution presented this version of what happened:

Abu-Jamal left his cab, ran toward Faulkner and shot him once in the back. Faulkner spun around, pulled out his revolver, shot his assailant and collapsed. Abu-Jamal, standing over Faulkner, shot him again, this time in the head, and fell to the ground.

Abu-Jamal's gun, with five spent cartridges, was found nearby. Three witnesses, who did not know each other, told police essentially the same version of events: that a man with dreadlocks ran across the street and shot the officer. Two of them identified the shooter as Abu-Jamal.

Prosecutors produced two other witnesses who said they heard Abu-Jamal boast of the shooting at Thomas Jefferson University Hospital.

The jury came back with a conviction four hours after it went out. It took them even less time to decide on the death penalty.

That was 1982. Today, a large defense team with a well-respected lead attorney, Weinglass - of Chicago 7 and Pentagon Papers fame - is rearguing the case on appeal. They offer evidence that they say proves Abu-Jamal's innocence, contend that his first trial was unfair and stacked against him, and say they believe that the federal courts - if not the higher state court - ultimately will grant their client a new trial or a new sentencing hearing. He is scheduled to be executed Aug. 17.

Here is a description of the key evidence now being presented:

THE BULLET. The defense says an assistant medical examiner who autopsied Faulkner concluded that the bullets found in him were .44-caliber. Abu-Jamal's gun, which he lawfully purchased, was a .38-caliber Charter Arms revolver. His supporters point to the discrepancy as proof he was framed.

That issue was not addressed during the trial. Defense attorney Anthony Jackson and prosecutor Joseph McGill both have said they were unaware of the report at the time.

At the trial, a ballistician reported that the fatal bullets were from a .38-caliber gun. Because the bullets, especially powerful "Plus-P" bullets, exploded when they entered Faulkner, a direct match could not be made with any gun. But the ballistics experts concluded that markings on the bullets were consistent with Abu-Jamal's gun and that the bullet casings found in that gun were of the same make as those found in Faulkner.

Paul Hoyer, the assistant medical examiner who autopsied Faulkner, said that the notation in question was made on a preliminary work sheet and that ''basically, it's a matter of little consequence. . . ."

"Yes, it's part of the paperwork," Hoyer said, "but it is not the official finding."

He added that, while he did not recall the bullets, a .38-caliber Plus-P could easily take on the characteristics of a larger .44-caliber bullet after being fired. He also said he was not a ballistics expert. The notation "is not something I would ever stand behind," Hoyer said.

THE EYEWITNESSES. The defense contends that the two most important witnesses, prostitute Cynthia White and cab driver Robert Chobert, were both in trouble with the law and had good reason to say whatever police wanted to hear.

The defense also argues that both changed their versions of the events between the night of the shooting and the trial.

Chobert, 22 at the time, was on probation for having thrown a firebomb into a schoolyard for pay. That fact, which defense attorney Jackson wanted the jury to hear, was suppressed by Judge Sabo.

The defense also wanted the jury to know that another prostitute told police that some officers told her that she - like Cynthia White - could have what amounted to police protection if she were to testify for the prosecution. Although the jury heard some of that prostitute's allegations about White's ''deal," a fuller description was ruled inadmissible.

The defense also points out that Chobert initially reported the shooter was heavyset (about 200 pounds). Abu-Jamal weighed 170.

Further, the defense offers testimony from witnesses who said they never saw Cynthia White where she said she was.

A third eyewitness, cab driver Edward Scanlan, had no outstanding problems with the law, and the defense does not claim his version of the events changed much over time.

During the trial, the prosecution stressed that those three witnesses reported seeing roughly the same events. Police reports show all three were interviewed separately within 30 minutes of the shooting.

Chobert and White said they could positively identify Abu-Jamal, who wore long dreadlocks, as the man who shot the officer. Chobert said he saw Abu- Jamal shoot Faulkner, slump to the ground, and get pulled into a police wagon - where he identified him.

THE ALLEGED CONFESSION. The third leg of the prosecution's case was Abu- Jamal's alleged "blurt-out" confession in the emergency room. According to Gary Bell, Faulkner's partner, a thrashing Abu-Jamal said, "I shot the motherf-er and hope he dies!" Hospital security guard Priscilla Durham testified to hearing the same thing.

During the trial, the defense assailed that testimony as unreliable, especially because Bell did not report the comment until more than two months after the shooting. In its appeal, the defense also contends that Durham waited until even later to report what she claimed to hear.

In addition, Gary Wakshul, a police officer who accompanied Abu-Jamal from the crime scene to the emergency room, that night filed a report that read: ''The Negro male made no statements." The defense called Wakshul to testify late in the trial, but he was said to be on vacation and, as a result, did not testify.

The defense has long contended that Wakshul's absence - which was accepted by Sabo - undercut its case.

The prosecution, however, says Wakshul would have been more important to its side because he made a second statement to police, calling his initial report incomplete and saying he remembered Abu-Jamal's blurt-out - although not until months later.

Also during the trial, prosecutors produced a report they say Durham made and gave to her superiors the day after the shooting. That report, which police did not receive until March, quotes Durham as saying she heard Abu- Jamal's angry "confession."

A THIRD SHOOTER? The defense has offered its own theory of who shot Faulkner: a third, unidentified man - with dreadlocks - who then ran off.

In its appeal and during public rallies, defense attorneys claim that "no less than four witnesses to the shooting . . . reported seeing a person, identified as the gunman who shot Officer Faulkner by one of them, flee before the police arrived."

Three of those four testified at the trial, two for the defense. Those two, Dessie Hightower and prostitute Veronica Jones, said they did not witness the shooting and did not look at the scene until a short time later.

The prosecution witness was Chobert, who, in his initial statement, said that he saw the man who shot Faulkner "running toward 12th Street" and that ''he didn't get very far, maybe 30 or 35 steps, and then he fell."

The defense interprets this to mean that someone other than Abu-Jamal ran

from the scene. The prosecution - and Chobert - says the person "running" was Abu-Jamal.

Chobert later changed his testimony to say Abu-Jamal ran one car length

from the shooting.

The fourth witness claimed by the defense is Debbie Kordansky, a resident of the St. James Hotel, which overlooks the crime scene. She refused to testify at the trial, but her police statement reports that she heard shots and adds: "I didn't look out the window at first. I heard sirens a short time later. I saw about 10 squad cars and two vans. I saw a male running on the south side of Locust Street."

Prosecutors argue that Kordansky, like Hightower and Jones, did not witness the shooting and reported seeing someone running long enough after the incident for it to be meaningless.

Whatever happened that night, defense attorney Weinglass and Abu-Jamal's many supporters believe him to be legally not guilty because he did not receive a fair trial.

A central point they make is that a police killing is exactly the kind of case in which evidence of guilt might be concocted and evidence of innocence suppressed. That is precisely what happened in the 1985 case of Wilfredo Santiago, who was convicted of killing Officer Thomas Trench but was granted a new trial by a Common Pleas Court judge who concluded that evidence had been withheld from the defense.

Anthony Jackson, a respected lawyer who has directed a public-interest law- center project on police brutality, was approached by friends of Abu- Jamal's and appointed by the court as his attorney. From the outset, a pattern appeared: Abu-Jamal accused the courts of denying him his rights, and the courts found him to be belligerent and disruptive.

Three weeks before the trial, Abu-Jamal petitioned to represent himself, saying he had not been given enough money to hire investigators and others who could help his case. At that point, his supporters say, he concluded the ''system" would not be fair to him and further embraced the philosophy of the radicals of MOVE, whom he had befriended in the years before Faulkner was shot.

Abu-Jamal covered the 1980 trial of nine MOVE members accused of shooting a police officer during the 1978 Powelton Village shootout. There, he witnessed the MOVE strategy of constantly challenging "the system" to turn the courtroom into a political arena.

Some of Abu-Jamal's supporters argue that he politicized his trial because he believed he would get no justice, especially before Sabo, a former undersheriff and Fraternal Order of Police member who many believe has a pro- prosecution bias.

Prosecutors see Abu-Jamal's trial behavior differently, as a deliberate tactic to cause a mistrial or create so many errors that his conviction and sentence would be overturned on appeal.

These are specific points of law that the defense now claims show Abu- Jamal's trial to have been unfair:

SUPPRESSION OF EVIDENCE. The petition alleges that police threatened, intimidated and coerced a witness named William Singletary. It claims police tore up several witness statements written by Singletary, threatened him with violence and arrest, and forced him to sign a "false statement" in which he denied seeing the shooting. The defense contends that police continued to harass Singletary until he moved to North Carolina and was thus unavailable for the trial.

No statement by Singletary is included in the legal papers filed by the defense. The petition states that defense attorneys will produce one but only if a protective order is signed to keep police from "harassing" Singletary.

In addition, the defense contends, neither it nor Jackson was told about a polygraph test witness Dessie Hightower says he was given and passed after he said he saw someone fleeing the crime scene. Nor was the defense provided police reports of a five-hour interview witness Veronica Jones says she had with police in January 1982.

Joseph McGill, the prosecutor on the case, last week said his office withheld nothing.

"This was a high-profile case, and we wanted to make sure everything was done just right," he said. "We gave them everything we had."

INADEQUATE FUNDS FOR REPRESENTATION. In an affidavit, defense attorney Jackson says the court offered him $150 apiece for a ballistics expert, a pathologist and an investigator. Even after that amount was raised a bit, he says, he could not find experts to work for the money allotted.

Without expert advice, Jackson said, the defense was unable to obtain scientific evidence that might have refuted the prosecution's case. With limited funds for investigation and problems finding witnesses, Jackson's investigator, at the time of the trial, was able to find and speak with just two of the 80 people interviewed by police.

The public funds offered to Abu-Jamal were consistent with what other judges were allowing at the time, and the state Supreme Court affirmed the allotment. Unlike other poor defendants, Abu-Jamal had a fund-raising campaign on his behalf. Joseph Davidson, then-president of Philadelphia's chapter of the National Association of Black Journalists, said he believed about $1,000 was raised.

Association members say that money was handed over to some of Abu-Jamal's friends and supporters, rather than to his attorney. Jackson has said he never received any private money raised to help with the defense.

POSSIBLE JURY EXCLUSIONS. The defense states that prosecutors used 11 of their 15 peremptory challenges to eliminate black jurors. The result was a jury of 10 white people and two black people.

Five years later, a U.S. Supreme Court ruling - which is retroactive - said black jurors cannot be excluded solely on the basis of race. There must be nonracial reasons for rejecting anyone from a jury.

That issue, in a slightly different form, was raised in Abu-Jamal's first appeal to the state Supreme Court. The justices ruled that the prosecutor had provided nonracial reasons for rejecting black jurors. Federal courts, which tend to be more aggressive on the issue, have yet to review the case.

The defense also alleges that Savannah Davis, one of the black jurors, said three white jurors, including the foreman, gathered every night for about a week in a hotel room in which the jury was sequestered. She said she could hear them discussing the case, the defense says.

SELF-REPRESENTATION. The defense petition argues that Abu-Jamal was denied his right to defend himself and contends that he should have been granted his request that MOVE leader John Africa be present to advise and represent him.

His right to participate in his own defense was further violated by his removal from the courtroom for "disruptions," which, the defense argues, could have been avoided had the court responded fairly to his request for John Africa's assistance.

Abu-Jamal was dismissed as his own attorney twice, first when Sabo concluded that he was asking improper questions and frightening prospective jurors during jury selection and later after the trial began.

The transcript shows that as the trial opened, Abu-Jamal demanded John Africa as his counsel, claiming "only he can guarantee me my freedom." Sabo denied the request (higher courts had ruled a defendant must have a certified attorney), but Abu-Jamal persisted in asking for John Africa even after the jury was seated. He was then removed as his own attorney for the second time.

The state Supreme Court has upheld Sabo's decisions on self-representation.

RELEVANCE OF BLACK PANTHERS. During the sentencing part of the trial, when Abu-Jamal testified in his own behalf, prosecutor McGill questioned him about his teenage membership in the Black Panther Party in 1970. McGill read from a newspaper interview in which Abu-Jamal quoted Mao Tse-tung statement that ''political power grows out of the barrel of a gun."

Defense attorneys contend that the prosecution violated Abu-Jamal's constitutional rights by using his past membership in the Panthers against him. They argue that Abu-Jamal had no criminal record and was not being tried for a political crime related to his former Panther Party membership. The information was used to inflame the predominantly white jury against him, they maintain.

Abu-Jamal made that claim in his first appeal to the Pennsylvania Supreme Court. Prosecutors countered that McGill had used the Panther membership to rebut testimony about Abu-Jamal's good character. The justices ruled it was appropriate character rebuttal to show Abu-Jamal's "longstanding disdain for the system."

Legal experts consider the use of Abu-Jamal's former Black Panther membership a potentally strong appeals issue when the case gets into federal court. Recently, the U.S. Supreme Court overturned the death penalty imposed on a man whose membership in the Aryan Brotherhood was used against him.

As Abu-Jamal's case moves through the appeals stage, questions arise:

* Why didn't William Cook testify for his brother? According to Cook's lawyer, the younger brother was ready and eager to testify. Defense attorney Jackson says it was Abu-Jamal's decision not to call his brother.

* Why didn't Jackson argue that if Abu-Jamal did kill Faulkner, it was third-degree, not first-degree, murder? Only first-degree murder can result in the death penalty.

Because Abu-Jamal happened to be driving by when he saw his brother being arrested - and, some witnesses said, being hit by Faulkner - Jackson could have argued that the shooting occurred in the heat of passion and was not premeditated, first-degree murder.

Also, because no witnesses saw Faulkner shoot Abu-Jamal, the defense could have argued that Faulkner might have shot first and that Abu-Jamal fired in self-defense.

Yet, in his summation, Jackson told the jurors they should not entertain the possibility that Abu-Jamal was guilty of a lesser crime but should decide his guilt or innocence on first-degree murder only.

"During the trial, people would say that Mumia was probably enraged that night, that he reacted to what he saw happening and was temporarily insane," Jackson said. "I remember he said: 'They want me to buy into that, to say I'm crazy.' But he would never select that. . . . It was never an option because of the way he is."

Abu-Jamal's appeal will be heard, starting Wednesday, by Sabo. The witnesses put forward will take the stand to testify and to be cross-examined. Questions of evidence and credibility will be examined and revisited.

If Sabo completes the hearing by the scheduled execution date, Aug. 17, and rejects the appeal, it is still highly unlikely Abu-Jamal would be executed anytime soon. His attorneys would appeal Sabo's rejection to the state Supreme Court, which undoubtedly would stop the execution if Sabo does not.

Then, if the state Supreme Court denies his appeal, Abu-Jamal can go to federal court, where federal appeals judges would consider whether anything in the trial or in the state appeals process violated his constitutional rights. Most death-row inmates who have won new trials or new sentencing hearings have done so at the federal level.

Legal experts say all the appeals could take several years. So it appears the passionate and polarizing case of Mumia Abu-Jamal will be around for some time to come.

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