There are many adjectives that can be used to describe Michael Moore. Propagandist. Patriot. Liar. Hero. Well, I'd like to add one more to the list. Well, two more actually.
Amoral scumbag.
On August 9, 1995, Michael Moore was a signatory on a full page ad in the New York Times that said cop killer Mumia Abu Jamal deserved a new trial. To date, he has never denied doing it and has even made a joke about it in his book Dude, Where's My Country in a "satirical" chapter about how to start a conversation around the dinner table with a conservative relative. In an interview with Democracy Now, Moore said he didn't know if Mumia killed Danny Faulkner, but that he deserved a new trial.
Gee, Mike. If you don't know if Mumia killed Faulker, how do you know he needs a new trial?
Hope you enjoy backing a convicted cop killer who has never denied killing Danny Faulkner.
2 comments:
Guilty and Framed
By Stuart Taylor, Jr.
The American Lawyer
December 1995
You've probably heard about the current darling of the radical-chic crowd and the America-bashing European intellectual set: Mumia Abu-Jamal, a convicted cop killer seeking to parlay his literary and black militant credentials into a ticket off death row.
In a full-page advertisement in the August 9 New York Times, 112 writers, actors, politicians, and others declared: "There is strong reason to believe that as an outspoken critic of the Philadelphia police and the judicial and prison systems, Mumia Abu-Jamal has been sentenced to death because of his political beliefs." The signers included the likes of director Oliver Stone, actors Mike Farrell and Paul Newman, Professor Derrick Bell, and the same Norman Mailer who helped free killer-author Jack Henry Abbott, who killed again.
Cornel West compares Jamal with Martin Luther King, Jr. Jesse Jackson compares him with Nelson Mandela (who has asked that Jamal be spared). And Jamal's book, Live from Death Row, has helped make him an international cause celebre, selling more than 50,000 copies since May.
What you would not know from such stuff is that the evidence shows that Jamal is probably an unrepentant killer, who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back.
So why the big hoo-hah about this character? Is it just the old radical conceit that any black guy who shoots a white cop can't be all bad, especially if he is a "revolutionary" with the Black Panthers on his resume, long dreadlocks, an engaging smile, and a way with words?
Actually, it's more complicated than that. Complicated enough that I'm joining the "Save Mumia" movement, here and now.
After a detailed review of the trial transcripts, witness statements to police, and other evidence brought out before and during a much-publicized post-conviction hearing this summer in state court in Philadelphia, it appears to me that Jamal's trial was grotesquely unfair and his sentencing hearing clearly unconstitutional.
Jamal was prejudiced by police misconduct and probably rampant police perjury; ineffective and underfunded defense lawyering; inappropriate prosecution arguments to the jury; egregiously bad judging by the notoriously biased, pro-prosecution Albert Sabo of the Philadelphia Court of Common Pleas; and questionable voir dire stratagems that forced Jamal to face an 83 percent white jury (ten whites, two blacks) in a 40 percent black city.
Due to this toxic combination of factors, the jury that convicted and condemned Jamal in 1982 lacked some important evidence, including a police report strongly supporting Jamal's claim that his "confession" was a complete fabrication, cemented by perjured prosecution testimony.
There is also evidence -- much of which the jury did not have -- suggesting that all three of the prosecution's eyewitnesses changed their stories to conform to the prosecution's theory of the crime between their initial police "interviews" and their testimony at trial, and that the police sought to stifle exculpatory evidence.
Moreover, even if Jamal did kill Faulkner, the evidence shows that there were mitigating circumstances: When Jamal came on the scene, what he saw was a big (6-foot) white police officer beating Jamal's much smaller brother bloody with a 17-inch flashlight; and when Jamal rushed to his brother's aid, the officer probably shot Jamal in the chest before Jamal shot the officer -- perhaps before Jamal drew his own gun.
In the end, even the overblown assertion in that New York Times advertisement -- that Jamal "has been sentenced to death because of his political beliefs" -- has a kernel of truth to it.
A Most Unusual Death Row Inmate
Mumia Abu-Jamal is an extraordinary man, with a powerful intellect, a rare talent for radio journalism, a burning empathy for poor people, a lot of admiring friends in journalism and politics, and no prior record of crime or violence, despite personal experience of police brutality and years as a teenage Black Panther under the microscope of FBI and police surveillance.
The day after the 27-year-old Jamal's arrest, the Philadelphia Inquirer reported that Jamal's "searing and skillful interviews" had made him "a well-known figure in local broadcast journalism." Jamal had been on National Public Radio, the National Black Network, and local Philadelphia stations including WUHY-FM (now WHYY). He had been elected chair of the Philadelphia Chapter of the Association of Black Journalists and had won mention in Philadelphia magazine as one of "81 people to watch in 1981."
You won't find many people on death row with credentials like that.
But this was no ordinary journalist, either. Jamal's radical activism went back to his mid-teens, when, he has said, he was beaten, threatened with a gun, kicked in the face, and called "nigger" by police in connection with various peaceful protest activities.
While he was protesting at a George Wallace-for-president rally in 1968, Jamal wrote in Live from Death Row, "we were attacked by several white men. . . . I was grabbed by two of them, one kicking my skull while the other kicked me in the balls. Then I looked up and saw the two-toned, gold-trimmed pant leg of a Philly cop. . . . I yelled, 'Help, police!' The cop saw me on the ground being beaten to a pulp, marched over briskly -- and kicked me in the face. I have been thankful to that faceless cop ever since, for he kicked me straight into the Black Panther Party." Jamal became a founding member of the Black Panther Party's Philadelphia chapter in 1969 at the age of 15.
After joining mainstream news organizations in the 1970s, Jamal, who changed his name from Wesley Cook as a teenager, took an interest in stories about police brutality, and with good reason. The Philadelphia police department was so notorious that the Justice Department, in an unprecedented 1979 civil suit, charged then-mayor (and former police commissioner) Frank Rizzo and the top police brass with encouraging rampant police brutality, racism, and lying. (The complaint was dismissed on jurisdictional grounds.)
By the late 1970s Jamal was also an ardent sympathizer of MOVE -- a black militant, antiestablishment, antipolice group -- and was wearing his hair in long dreadlocks like a MOVE member. By mid- 1981 Jamal's growing obsession with MOVE had compromised his standing as a journalist and cost him his job at WUHY. He was freelancing while moonlighting as a cabdriver. After being robbed, he had started carrying a gun.
Nonetheless, Jamal's arrest for Faulkner's murder stunned friends and fellow journalists, several of whom have said that despite the revolutionary rhetoric, violence was alien to his nature.
Who Shot Faulkner: What The Jury Heard
Police officer Daniel Faulkner's radio dispatches, accounts of witnesses, and physical evidence establish beyond serious dispute how the chain of events leading to Faulkner's death began that December night in 1981.
At 3:51 a.m. Faulkner stopped Jamal's brother, William Cook, who was driving a Volkswagen Beetle, apparently for a traffic violation, on the south side of Locust Street, about 80 feet east of 13th Street. It was a seedy area replete with late-night bars, nightclubs, cafes, and streetwalkers. Faulkner radioed his location, and then added: "On second thought, send me a wagon" -- apparently planning to arrest Cook (or someone in Cook's car) for an unknown reason.
Both Faulkner and Cook got out of their cars. Faulkner spread- eagled Cook across one of the cars. Then Cook suddenly turned and slugged the officer, or so say two prosecution witnesses. Faulkner responded by clubbing Cook several times with his 17- inch flashlight. (Cook's face and neck were bloody when police arrived.)
At this point, Jamal came out of a parking lot on the northeast corner of Locust and 13th, accelerating from a walk to a run as he charged across Locust Street, right at Faulkner. That's when the shooting started, at point-blank range. (It has never been clear why Jamal, whose cab was parked nearby, happened to be around.)
When police arrived at the scene less than a minute later, the wounded Jamal -- sitting on the curb 4 feet from Faulkner, with his empty shoulder holster on and his empty gun nearby -- was the obvious suspect.
Cook was standing a few feet away against a wall, with what two witnesses called "a look of shock" on his face. He allegedly told police, "I ain't got nothing to do with it." (Cook was prosecuted only for slugging Faulkner; Jamal's lawyers and prosecutors agree that he did not shoot Faulkner.)
The main disputes are over who fired the two shots that hit Faulkner, and over when Faulkner shot Jamal, during the interval of a few seconds after Jamal began running toward the scene.
According to the prosecution's theory, Jamal ran up behind Faulkner "from ambush" to within about 1 foot, and shot him in the back. The wounded Faulkner returned fire, hitting Jamal in the chest, while falling onto his back. Jamal emptied his gun at his helpless victim's face at close range, finishing him off with a shot between the eyes.
It's a nice, clean theory, pointing to a clear legal conclusion: first-degree murder, which is capital murder in Pennsylvania when the victim is a police officer. If all one had to go on was the physical evidence (as it was presented to the jury) and the trial testimony of the three prosecution eyewitnesses, Jamal's guilt would seem established beyond a shadow of a doubt.
Cynthia White, a prostitute, swore that she had seen Jamal, with gun in hand, firing two shots at Faulkner's back; then Faulkner "turned around and staggered and seemed like he was grabbing for something, then he fell"; and then Jamal was "standing over" the fallen officer firing "three or four more" shots into his face. Robert Chobert, a cabdriver, swore that he had heard a shot, looked up, and had seen Jamal firing down at the supine Faulkner. Michael Mark Scanlan, who had been out bar-hopping, swore that he had heard a shot while watching a dreadlocked black man (evidently Jamal) rushing at Faulkner with arm outstretched, as though pointing a gun; then the man had stood over Faulkner firing more shots.
"There's no question in my mind," says Jamal's trial prosecutor, Joseph McGill, "that Mumia Abu-Jamal viciously killed Officer Faulkner in the manner presented before the jury, and the jury agreed."
But the prosecution's theory begins to unravel when one studies the initial statements that these three witnesses gave to police on the morning of the shootings, and traces the dramatic changes -- all to the benefit of the prosecution -- in their accounts over the next six months, culminating in their testimony at trial. Still more doubt creeps in when one weighs the strong incentives that White and Chobert had to give police what they wanted.
The prosecution's theory is that Jamal shot Faulkner in the back before being shot by Faulkner. But review of all available evidence (much of which was not before the jury) suggests to me that Faulkner probably saw Jamal coming -- perhaps with gun in hand, perhaps not -- and may have fired the first shot. And other evidence suggests that Cook may well have had a passenger in his car, who jumped out and got away, perhaps after firing one or more shots at Faulkner.
The prosecution's theory -- and, probably, the reality -- is that it was Jamal who fired the fatal shot into the fallen Faulkner's face. But the testimony undergirding this theory was far shakier, less credible, and less consistent with the eyewitnesses' initial reports to police than the jury could have known.
Nor is the physical evidence conclusive, although it may have looked that way to the jury. There was no definitive match, for example, between Jamal's gun and the bullet that killed Faulkner. And police could have gone a long way toward establishing whether or not Jamal was the killer by testing his hands,
to determine whether he had recently fired a gun, and smelling his gun barrel, to determine whether it had recently been fired. They did neither.
A Concocted Confession?
If the jurors had any doubts about Jamal's guilt after hearing from the prosecution's eyewitnesses, those doubts probably evaporated when they heard Jamal's "confession."
As he was lying on the floor of the hospital emergency room, near the police officer he was suspected of murdering, Jamal defiantly shouted: " 'I shot the motherfucker, and I hope the motherfucker dies.' " He shouted it again a minute later. At least that was the testimony of Priscilla Durham, a hospital security guard, at Jamal's 1982 trial. Officer Garry Bell, Faulkner's former partner and best friend, swore that he heard Jamal shouting the same words.
Prosecutor McGill not only made powerful use of this alleged confession in his closing argument for a first-degree murder conviction; the next morning, in urging a death sentence, he stressed "the arrogance of an individual who defiantly will do it and then defiantly brag after it."
But this was a most peculiar "confession," even putting aside the improbability that a man described by another prosecutor at this summer's hearing as "one of the smartest people I have ever seen" would so spontaneously and flamboyantly incriminate himself.
For although Jamal allegedly shouted it out while 15 or so police officers were grappling with him or nearby, and although most or all of these officers were interviewed over the next few days by homicide detectives seeking to build the strongest possible case against Jamal, not a word about this "confession" found its way into a single police report for more than two months.
Jamal's lawyers contend this "confession" was fabricated. And due to the ineffectiveness of Jamal's defense lawyer and the bias of Judge Sabo, the jury never heard the most exculpatory evidence: Officer Gary Wakshul, who was in the paddy wagon that took Jamal from the scene to Jefferson Hospital, reported later that morning that "we stayed with the male at Jefferson until we were relieved. During this time, the Negro male made no comments."
Did Wakshul just not hear Jamal's confession? Or did he step away for a minute and miss it? Or did he leave the hospital before Jamal uttered it? Nope. It turns out he heard the whole confession, loud and clear. At least, that's what Wakshul said in a new statement 64 days after the fact, on February 11, 1982, when questioned in a probe of Jamal's claim that police had beaten him.
Wakshul suddenly recalled there was this one little comment: "As he was placed on the floor [outside the hospital emergency room], and as I was standing back up, I did hear him say, 'I shot him. I hope the motherfucker dies.' " Asked by his interviewer to explain his initial report, Wakshul said that "the statement disgusted me, and I didn't realize it had any importance until today."
Didn't realize it had any importance? Wakshul's initial report had included far less important details, such as the exact times of Faulkner's radio dispatches. The idea that he had heard Jamal confess but hadn't bothered to report it is patently incredible.
Like Wakshul, officer Garry Bell made no mention of Jamal's "confession" in his reports in the days after the shooting. It was not until 78 days later that Bell says he "remembered" the confession. Bell explains he was "devastated seeing Danny . . . with his face almost blown off," but not one of the other 15 to 20 other police officers with Jamal at the hospital ever reported hearing the confession.
Priscilla Durham first mentioned Jamal's "confession" to police investigators in a February 9, 1982, interview, 62 days after the shooting. It was not until yet another four months had gone by that Durham first claimed, in her June 24 trial testimony, that she had reported the alleged Jamal confession "the very next day" after the shooting to a hospital investigator, in a statement that he wrote down by hand. Prosecutor McGill, seemingly surprised, interjected, "I've never seen one."
Nor has one ever been produced, from that day to this. McGill sent word for the hospital to dig up this handwritten "statement," and while Durham was still on the stand there arrived in the courtroom an unsigned, unauthenticated, typewritten piece of paper, dated December 10, 1981.
Durham said that she had never seen this typed "statement" before, but that it was close to what she had reported to hospital investigators. "They took the handwritten statement and typed this," Judge Sabo helpfully conjectured. He then let McGill bolster Durham's credibility by reading key portions of this unauthenticated document to the jury.
Jamal's lawyers stress that Durham was a biased witness because she knew Faulkner and Bell, worked closely with police on a daily basis, and harbored hopes of getting a job as a police officer. Durham and Bell (like Wakshul) also undermined their credibility by denying that Jamal had been brutalized at the hospital, despite evidence (some of which the jury did not hear) suggesting that he was beaten in their presence.
Nor would this have been the first time that Philadelphia police cooked up a phony confession. "That's the kind of bullshit we see all the time," asserts John Packel, chief of the appeals division of the Defender's Association of Philadelphia. "Cops making up whatever they think will help, making up confessions, to get someone they think is guilty."
In fact, police may have manufactured two Jamal confessions. Inspector Alfonzo Giordano reported later on the morning of the shooting that the handcuffed Jamal had confessed to him when they were alone in the back of the paddy wagon.
Giordano says he asked Jamal, " 'Where is the gun that goes into the holster?' and he stated to me, 'I dropped the gun on the street after I shot him.' " The prosecution elected not to use this "confession," partly because of the risk of reversal on Miranda grounds.
But I think Giordano made it up. I think Jamal was telling the truth in an interview 11 weeks later, when he told Philadelphia Daily News columnist Chuck Stone: "I confessed? That's absurd. I do remember he [Giordano] called me a black motherfucker and hit me with a walkie-talkie." Giordano -- who pled guilty in 1986 to tax charges arising from his taking $57,000 in payoffs -- stands by his story.
Eyewitnesses: A Cabbie With Problems
"Throughout this trial, whenever there was any testimony that was changed, it was always to the benefit of the commonwealth."
So said Anthony Jackson, the defense lawyer at Jamal's 1982 trial, while on the stand at this summer's hearing. The proof of his point lies in the remarkable evolution over time in the stories told by the three prosecution eyewitnesses who fingered Jamal as a cop-killer.
Consider cabdriver Robert Chobert.
It is undisputed that he was closer to the scene than the two other prosecution eyewitnesses, parked in his cab a car's length behind Daniel Faulkner's squad car, and some 50 feet from the shooting. He was writing up a fare when he heard the first shot and looked up. He had to look over or past Faulkner's car, with its flashing red dome light, to see the action, and saw the shooter only from the side.
Chobert testified at trial that when he looked up, he saw Faulkner fall; then saw Jamal "standing over him and firing some more shots into him."
"I know who shot the cop, and I ain't going to forget it," Chobert snapped at Jackson during cross-examination.
But Chobert's first recorded statement to police -- about which the jury was not told -- was that the shooter "apparently ran away," according to a report that morning by Inspector Giordano.
Giordano encountered Chobert upon reaching the scene about five minutes after the shooting: "[A] white male from the crowd stated that he saw the shooting and that a black MOVE member had done it and appearently [sic] ran away. When asked what he ment [sic] bby [sic] a MOVE member, the white male stated, 'His hair, his hair,' appearantly [sic] referring to dreadlocks. I asked him to step over to the rear of EPW #601 [the paddy wagon], the wagon crew opened the back door, the suspect was laying on his back on floor, the white male immediately stated, 'That is the man that shot the policeman.' "
The white male was Chobert. The dreadlocked suspect in the wagon was Jamal. And the problem with Chobert's first account was that if indeed the shooter "ran away" from the scene, then it would be hard to pin the crime on the critically wounded Jamal, who was found on the curb 4 feet from Faulkner, and who had not run anywhere, according to three other witnesses. (Giordano now says that "I don't doubt that this cabdriver saw somebody run away," but that it was not the shooter. The prosecution's theory, and Chobert's testimony, was that nobody ran away.)
Had Chobert gotten confused and misidentified Jamal as the shooter when he saw him in the paddy wagon, because of his race and hairstyle? (Cook had dreadlocks too, and a third man with dreadlocks escaped the scene, according to other witnesses.) Or what?
This account would have given the defense a good start at attacking the prosecution's case against Jamal, on the ground that Chobert's initial report showed that the shooter had escaped -- or, at the very least, that Chobert had no idea who the shooter was. But Chobert's story changed in each of his two subsequent police interviews, getting better for the prosecution each time.
At the homicide unit, less than an hour after his initial report to Giordano, Chobert signed a statement that "I saw this black male stand over the cop and shoot him a couple more times. Then I saw the black male start running towards 12th Street. He didn't get far, maybe 30 or 35 steps and then he fell. . . . The cops got him and stuck him in the back of a wagon."
Chobert also told police that the dreadlocked shooter was "kind of heavyset. He was about 6 feet tall and he was wearing a light tan shirt and jeans."
This second recorded Chobert statement still posed big problems. For one thing, while Jamal is over 6 feet, he was far from heavyset; he was lean, almost gaunt. And when arrested he was wearing not a light tan shirt, but dark clothes.
More important, if the shooter ran 35 steps (about 100 feet) toward 12th Street, the shooter wasn't Jamal, who sat down or collapsed on the curb 4 feet from Faulkner, and who, according to prosecution eyewitness Cynthia White, "didn't try to run or anything."
Three days later, in a December 12, 1981, reinterview, Chobert said that the shooter's shirt was "dark gray" -- not "light tan." And when asked (yet again) "how far did this man [the shooter] run," he revised 35 steps to "about a car length away," adding that then the shooter "just layed [sic] there by the curb, about 10 feet from the cop." Thus did 100 feet (35 steps) suddenly shrink to 10 feet, perhaps with a little coaching by police.
By the time of his June 19, 1982, trial testimony, Chobert was swearing that the shooter had not run at all: "I saw him walking back about 10 feet and he just fell by the curb."
Jackson stressed some of these discrepancies in cross- examination, but he didn't do it very well, and he didn't get the biggest discrepancy of all ("ran away") before the jury. This enabled prosecutor Joseph McGill plausibly to dismiss the discrepancies as trifling details.
And while McGill told the jurors they could "trust" Chobert, he didn't tell them -- and with Judge Sabo's help prevented the defense from telling -- that Chobert needed friends in law enforcement because he was, among other things, on probation for arson-for-hire.
"I threw a bomb into a school. . . . A Molotov [cocktail]. . . . I got paid for doing it," Chobert explained in chambers. Judge Sabo ruled the arson conviction inadmissible for purposes of impeachment on the ground that it was not "crimen falsi" -- a crime tending to show untruthfulness.
Nor was the jury told about Chobert's drunk driving record, which Sabo deemed inadmissible. Nor was the jury -- or the defense -- told that Chobert had been driving his cab with a suspended license the night of the killing; that it was still suspended at the time of the trial; that police had never given him any trouble about this; that (according to Chobert's testimony this summer) Chobert had asked McGill during the trial "if he could help me find out how I could get my license back"; that McGill had "said he'll look into it"; and that this was "important" to Chobert because "that's how I earned my living."
McGill never mentioned this exchange to the defense. He says now that the conversation probably occurred after Chobert testified.
Tales of Two Prostitutes
The only prosecution eyewitness who claimed that she had seen a gun in Jamal's hand at any time, and the only one who reported Faulkner grabbing at his side (for his own gun?) after being shot, and the only one besides Chobert who identified Jamal as the shooter, was the prostitute Cynthia White.
She told the jury she had seen the whole thing unfold while standing on the southeast corner of Locust and 13th Streets. That would put her about 80 feet from the scene and perhaps 30 feet behind Chobert's cab.
But White has more credibility problems than the average prostitute -- so many that it's hard to dismiss Jamal's lawyers' contention that her tale was scripted to please the police. Some evidence suggests she wasn't even there.
White had at least 38 arrests on her record in Philadelphia, with three open cases awaiting trial there when she testified at Jamal's trial. She was serving 18 months for prostitution in Massachusetts at the time of Jamal's trial. The jury heard about all that. But Judge Sabo blocked proffered testimony from another prostitute, Veronica Jones, that might have cast even more doubt on White's credibility.
Jones had heard the shooting, but not seen it, while standing almost a block to the east, at Locust and 12th Streets, according to her December 15, 1981, statement to police. Called to testify (reluctantly) for the defense at Jamal's trial, Jones started to say something intriguing: Sometime after her December 15, 1981, statement, she had been locked up "for nothing," held for five hours, and pressed by police to say, "I had seen Mumia . . . do it . . . intentionally." Prosecutor McGill cut Jones off with objections.
In a bench conference, Jackson said that Jones had told him that police "told her that if she would give a statement that backed up Cynthia White, they would let her work the street just like they were letting [Cynthia] work." At McGill's request, Sabo barred any such testimony as irrelevant, and struck the part that Jones had already blurted out.
White's account of the shootings, like Chobert's, evolved considerably after her initial police interview on December 9, 1981, as Jackson stressed in cross-examination. Police arrested her for streetwalking on December 12 and 17, and took the opportunity to send her up to Homicide to be reinterviewed each time. She was reinterviewed again on December 23.
In her first statement, the morning of the shooting, White said that the shooter was "short" with dreadlocks, and "came running out of the parking lot on Locust Street. He had a handgun in his hand. He fired the gun at the police officer four or five times. The police officer fell to the ground, starting screaming."
Problem: Jamal is tall (6 feet 1 inch). Cook is much shorter. Both had dreadlocks. Bigger problem: Chobert and Scanlan, the third prosecution eyewitness, both told police that same morning that they had heard only one shot before Faulkner fell, and that the rest of the shooting had come as he was flat on his back.
By December 17, 1981, White had a revised version: "He pointed the gun at the police officer and shot him one or two times. Then the officer fell, and he went over and stood above him and shot three more times."
Also in her initial statement, White said that "there was no struggle" between Faulkner and the driver of the Volkswagen (Cook). Problem: Scanlan told police that he saw Cook slugging Faulkner, and then saw Faulkner beating Cook hard with a billy club (apparently it was Faulkner's flashlight).
Three days later, White amended her story, saying that "the driver of the V.W. struck the officer. The officer grabbed him and turned him around." At trial she said Cook had suddenly struck Faulkner "with a closed fist to the cheek." But she still swore that Faulkner had never struck Cook, and had nothing in his hands.
Credible But Confused
Scanlan, the bar-hopping motorist, was the most credible of the three prosecution eyewitnesses. He saw the critical events a lot less clearly than Chobert and White claimed to have seen them. But his story also got better for the prosecution between his initial accounts to police and his testimony at trial.
Scanlan was headed east on Locust Street and stopped at the light on the west side of 13th, about 120 feet from the scene [see diagram, page 77]. To see the shootings, he had to look past the corner where Cynthia White claimed she was, past Chobert's cab, and past Faulkner's squad car with its flashing red dome light.
According to Scanlan's initial statement to police, Faulkner had "spread the guy across the car with his arms out, and the guy turned back around and swung at the officer. The officer pulled his billy club out and swung hard at the guy hitting him several times on the arm and back. . . . Then I noticed another black guy come running across the street towards the officer and the guy he was hitting. Then the guy running across the street pulled out a pistol and started shooting at the officer . . . the officer fell down. Then he stood over the officer and fired three or four more shots point blank at the officer on the ground."
While Jamal's lawyers don't dispute that Jamal was the man Scanlan saw running across the street, they do dispute that Scanlan saw Jamal shoot Faulkner in the back, or at all. And with good reason. For one thing, when Scanlan was asked by police at the scene to identify Jamal, he identified him as the driver of the Volkswagen -- not the shooter. For another, Scanlan then drew a diagram that clearly showed Faulkner facing Jamal as Jamal approached the scene. And in a police reinterview two days later, Scanlan muddied the waters even more.
First, Scanlan said he hadn't seen the man who ran across the street holding or firing a gun. Rather, he assumed that this man was the source of the first gunshot that he heard. Scanlan also noted: "I don't know if the officer fired his gun or not, I didn't see him pull his gun or fire it, I didn't know whether either of the males was shot or not, I was stunned. . . ."
Second, Scanlan told police in this reinterview that he had no idea which black male had fired the shots after Faulkner fell: "One of the two males was standing over the officer, I don't know which one it was, then I saw two or three flashes, and heard the shots, I saw the gun in one of the males' hand, but I don't know which male had the gun."
By the time of his June 25, 1982, trial testimony, however, Scanlan's account was less messy: He said that a man (concededly Jamal) had run at Faulkner from behind, and that "I saw a hand come up, like this, and I heard a gunshot. There was another gunshot when the man got to the policeman, and the gentleman he had been talking to. And then the officer fell down on the sidewalk and the man walked over and was standing at his feet and shot him twice. I saw two flashes."
"The man walked over . . . and shot him twice"? Which man? How could Scanlan -- who had admitted on December 11, 1981, that he had no idea which man it was -- be sure in June 1982 that it was Jamal? In cross-examination, Scanlan indicated that he was not very sure: "There was confusion when all three of them were in front of the car."
What Really (Probably) Happened
Jamal's lawyers theorize that Scanlan saw Faulkner facing Jamal as Jamal charged the scene; heard Faulkner shoot first at Jamal; mistakenly assumed that it was the other way around; and then saw someone standing over Faulkner and killing him -- the same someone who, according to Chobert's first statement, "ran away."
The prosecution's theory that Jamal fired the first shot, from within 12 inches, into Faulkner's back, depends on the assumption that the wounded Faulkner, while staggering and falling onto his back, with two assailants right on top of him, was able to pull out his gun, turn, and fire into Jamal's upper chest a bullet that lodged in his lower back. Also that Jamal passively waited with gun in hand for Faulkner to draw and shoot before continuing his assault.
It's possible it happened that way. But it's doubtful that it did -- especially since none of the prosecution's three eyewitnesses ever claimed to have seen Faulkner draw, aim, or shoot his gun, and only the less-than-credible Cynthia White claimed to have seen the charging Jamal, with gun in hand, shooting at Faulkner from behind.
The defense theory seems more plausible: "At that moment, Officer Faulkner faced a life-threatening situation. He had one suspect who allegedly struck him bent over the hood of a car with another individual running toward him. He was alone. It was 4 a.m. It was dark. The neighborhood was unsettling." So Faulkner shot Jamal first. And then Faulkner got spun around and shot in the back by Jamal. Or, as the defense claims, he was shot in the back by a man who ran away.
The who-shot-first question is important: A jury might find that even if the gravely wounded Jamal did shoot Faulkner, the circumstances warranted neither the death penalty nor, perhaps, a first-degree murder conviction, which requires proof beyond a reasonable doubt of malicious and unprovoked killing with "deliberation and premeditation."
The defense could argue: Here we have a 27-year-old man with no criminal record. He sees his beloved kid brother being brutally clubbed by a big police officer. He understandably rushes to his brother's aid, his gun in its holster. The officer turns and shoots him in the chest, nearly killing him. He is racked with pain and shock. Even if you believe that he then shot the officer, it was surely in self-defense, or defense of his brother, or at worst manslaughter, committed after grave provocation and in the heat of passion.
The prosecution could, of course, counter that the execution- style fatal shot, with Jamal standing over his helpless victim, was first-degree murder punishable by death no matter who fired the first shot. But a verdict of manslaughter would be a real possibility, especially if any juror had even a scintilla of doubt as to who fired that fatal shot.
Jamal's lawyers say that if they win a new trial, they're after an acquittal, not just a manslaughter conviction. And to that end, they have taken aim at another key element of the prosecution's case: the theory that Jamal must have killed Faulkner because nobody else but Cook was at the scene.
No fewer than five eyewitnesses (including Chobert) have made statements at one time or another that support the defense theory that someone ran away from the scene. These accounts also raise at least a suspicion that police were so bent on nailing Jamal that they may have shunted aside, or even suppressed, evidence supporting this defense theory.
The most important of these witnesses, and the only one whom the jury heard saying that someone escaped the scene, was a part-time college student, Dessie Hightower. He has consistently and credibly stuck by the story he told police 80 minutes after the shootings: that he saw a man (or possibly a woman) about 6 feet tall, who looked "Jamaican" from behind (meaning that his hair was in dreadlocks or braids), "run from the scene of the crime" before police arrived.
Hightower's initial account posed a problem for police. He was called in for a reinterview six days later, on December 15, 1981. It lasted almost six hours. He told the same story, adding details about what happened after police arrived: Several officers had kicked and beaten Jamal, and had banged his head against a pole while dragging him to the paddy wagon by his dreadlocks. (Police admitted at trial that they banged his head against a pole and dropped him on his face, but claimed these were accidents.)
In the middle of this reinterview, Hightower was asked to take a polygraph test. (None of the prosecution witnesses was asked to do this, despite White's and Chobert's criminal records.) Hightower did so, and was told he had passed, he claims. But prosecutors at this summer's hearing produced a typed police report, dated 12 days after the polygraph test, purporting to show the opposite. The report says that Hightower was told that there was "deception indicated" when he denied "know[ing] for sure who killed Pol. Faulkner"; when he denied "see[ing] Pol. Faulkner killed"; and when he denied "see[ing] Jamal with a gun in his hand."
This report is puzzling in at least two respects. First, it indicates that the polygrapher asked Hightower questions wildly out of sync with police reports of his prior interviews, in which he said he did not see the shootings because his view was blocked by a wall at that moment. Second, the report indicates that the polygrapher did not ask Hightower anything about the important subject on which his prior interviews had focused: his claim that he had seen someone running away.
What kind of game were the police playing with this exculpatory witness?Aside from Hightower, the prostitute Veronica Jones told police (but not the jury) that after Faulkner fell, "I saw two black guys walk across [the] street and then they started sort of jogging." Two black guys jogging: That matches Chobert's (second) December 9, 1981, report, which says he saw the shooter and another black man running. Cook, perhaps -- and who?
Taking the eyewitness evidence as a whole, it seems more likely than not that somebody had been in Cook's car with him and had run away before police arrived. It's also at least conceivable that this mystery man killed Faulkner.
That, in fact, is the sworn testimony of one William Singletary, a new witness who contacted Jamal's lawyers in 1990 and testified publicly -- if not very credibly -- for the first time at this summer's hearing.
Another less than credible new defense witness this summer was Arnold Howard, a lifelong Jamal acquaintance with forgery and burglary convictions on his record. He provided the identity of the mystery man who allegedly was in Cook's Volkswagen and escaped the scene: Kenneth Freeman, Cook's (now deceased) partner in a vending stand a few blocks away.
In an affidavit, Howard swore that Freeman "told me he was driving [Cook's] Volkwagon [sic]" when Faulkner stopped it.
Ineffective Assistance
During the six months between Jamal's arrest and his trial, while police and prosecutors were putting their case together and doing some 150 witness interviews, Jamal's court-appointed defense lawyer, Anthony Jackson, was doing a lot less.
Jackson was far from the worst lawyer a death penalty defendant has ever had. He had some 20 homicide trials under his belt and other useful experience, including several years at a public interest group that specialized in lawsuits alleging police brutality.
But Jackson's preparation of Jamal's case was woefully inadequate, and he was working under conditions that became increasingly difficult. Judge Paul Ribner, who handled the pre- trial proceedings, allocated Jackson the standard Philadelphia ration for an investigator and expert witnesses -- "not to exceed $150" apiece. Several Jackson motions for additional funds to investigate the case were denied, as was a Jackson plea for the appointment of a second lawyer to help out.
As trial approached, Jackson's investigator had stopped work due to insufficient funds, after interviewing only two witnesses. Jackson also lacked funds to pay for trial testimony by a pathologist or a ballistics expert. Meanwhile, Judge Ribner had denied a defense request for a lineup to test the questionable identifications of Jamal as the killer by eyewitnesses Chobert and White. And by May 1982, Jamal was aware of the prosecution's apparent intention to use one or both of his two (probably phony) "confessions" at trial.
So perhaps it's not hard to understand how it was that by the time of the June 1982 trial, Jamal -- who had been slipping into the MOVE group's strange orbit for some time -- got the impression that he was being railroaded by a corrupt and dishonest system bent on killing him, and that Jackson was being used as a fig leaf.
Jamal elected on May 13 to represent himself at trial. Jackson, meanwhile, was ordered by Judge Ribner to act as Jamal's "backup counsel," and the first of his several requests to withdraw was rejected. He ceased to work on the case for the five weeks before trial, because (he says) he assumed that Jamal would handle everything from voir dire to questioning witnesses. But Judge Sabo, who took over the case as trial approached, apparently had other ideas.
An Unfair Trial
The unfairness of Jamal's 1982 trial was almost guaranteed once it was assigned to Judge Albert Sabo (who declines to comment on the case). The short, white-haired judge, who is said to be genial and informal off the bench, was undersheriff of Philadelphia County for 16 years, and a proud member of the Fraternal Order of Police, before taking the bench in 1974. Sabo, now 74 and semiretired, has sent 32 defendants (27 blacks, two Asians, two whites, and one Latino) to death row -- far more than any other judge in the nation. He is notoriously pro-prosecution -- a cop on the bench.
Judge Sabo and Jamal began battling soon after the start of voir dire, on June 7, 1982. After two laborious days, Sabo granted a request by prosecutor McGill to bar Jamal from continuing to question prospective jurors, on the ground that he was taking too long and making them uncomfortable.
But this smacked of pretext. The Inquirer wrote at the time that Jamal "was intent and businesslike" and "subdued" in voir dire. While some jurors were apparently upset by Jamal's dreadlocks, beard, and questions about their home life, Sabo's claim (in findings of fact after this summer's hearing) that he was "belligerent" during voir dire rings false.
Prosecutor McGill used peremptory challenges to strike 11 of the 14 blacks in the eligible jury pool. By the time testimony began, the black militant defendant, charged with the highly publicized murder of a white policeman, in a then-40 percent black city, faced -- as a result of a probably unconstitutional voir dire -- a jury of two blacks and ten whites, including a friend of another officer shot in the line of duty.
After being unjustly barred by Sabo from representing himself at voir dire, Jamal made things worse for himself by insisting over and over again, throughout the rest of the trial, that MOVE founder John Africa be allowed to sit at the defense table and counsel him. Sabo rejected any such arrangement because Africa was not a lawyer. But Jamal refused to accept the finality of Sabo's rulings. Instead, he repeatedly complained in front of the jury that he was being "gagged" and deprived of his right to represent himself, and did not want or trust Jackson or any "any legal-trained lawyer."
These disruptions led Sabo to bar Jamal from examining witnesses or otherwise representing himself at any stage of the trial, and to expel him from the courtroom -- with such comments as "take a walk" -- each time Jamal misbehaved.
Jackson, meanwhile, was suddenly thrust unprepared into the arena, whipsawed between an unmanageable client -- who, Jackson told Sabo, "has no faith in anything I say" -- and a judge who would neither let Jackson withdraw nor give him a break. With Sabo rushing the trial through three consecutive Saturdays, Jackson recalled in an affidavit this year, "I was kept busy each evening feverishly reviewing over 100 police interviews" and other materials, "with little or no time for witness preparation or the defense case."
Under these difficult circumstances, Jackson blew it. For example, he did not interview either of the defense eyewitnesses, Dessie Hightower and Veronica Jones, before the trial. And Jones gave Jackson a nasty surprise when she took the stand: She flatly disavowed her December 15, 1981, statement to police that she had seen "two black guys . . . sort of jogging" after the shootings.
Sabo compounded Jackson's difficulties by issuing a string of pro-prosecution rulings on key issues throughout the trial. The most prejudicial precluded a belated bid by Jackson to put on the best evidence that Jamal's confession was a fabrication: Officer Gary Wakshul's report the morning of the shootings that Jamal had "made no comments" while at the hospital.
Jackson swore at this summer's hearing that he had simply forgotten to subpoena Wakshul or give the prosecution timely notice that he wanted him to testify. Although this may well have been ineffective assistance of counsel, it does not excuse the responses of prosecutor McGill and Judge Sabo on July 1, 1982, when Jackson sought a brief continuance to summon Wakshul.
McGill strenuously objected, saying, "He is not around." Judge Sabo, scanning the December 9, 1981, Wakshul statement, preposterously suggested that it was consistent with the trial testimony that Jamal had defiantly shouted out a confession at the hospital. Sabo also conjectured -- with remarkable clairvoyance -- that Wakshul "could be on vacation." McGill checked, and reported back that, in fact, "he is on vacation until July 8."
Jackson asked whether this meant Wakshul was "not in the city." McGill did not answer. Instead, Judge Sabo cut in: "I am not going to go looking for anybody now." When Jamal complained that this was a crucial witness, the judge snapped, "Your attorney and you goofed." Jamal responded: "You are trying to hide the truth."
Ironically, at this summer's hearing Wakshul recalled that he had spent most of that 1982 vacation at home, leaving town only after "I believed the testimony was over."
A bit later on the same day (July 1, 1982) that Sabo spurned Jamal's pleas to call Wakshul, Jamal elected not to testify in his own defense, explaining to the court: "The right to represent myself, the right to select a jury of my peers, the right to face witnesses and examine them . . . were taken from me. It seems the only right that this judge [wants] to confer is my right to take the stand, which is no right at all. I want all of my rights, not some of them . . . because my life is on the line."
The Wakshul episode was not the only instance of sharp practice by prosecutor McGill at the trial. He also sponsored possibly perjured testimony by witnesses including Durham, Bell, Chobert, and White. And in his summation, McGill improperly vouched for Chobert's testimony, misleadingly suggested that Chobert had no reason to tailor his account to the prosecution's liking, and contended that Jamal's vociferous insistence on his right to represent himself showed a "vicious . . . frame of mind."
(McGill rejects these criticisms as "absolutely wrong," and notes that the Pennsylvania Supreme Court rejected all of Jamal's attacks in a 1989 decision.)
Jackson's closing was feeble -- especially his lame statement to the jury that "you have heard all of the evidence," which was very far from being the case. Jackson also urged the jury (perhaps at Jamal's insistence) not to "compromise this verdict," and either to convict Jamal of first-degree murder or acquit him of any role in Faulkner's death.
The jury got the case at noon on July 2. After asking at one point to be reinstructed on the law of first- and third-degree murder and manslaughter, the jury returned its first-degree conviction at about 5 p.m.
An Unconstitutional Sentence
If Jamal's trial was unfair, his sentencing proceeding was a travesty. It was pushed through by Judge Sabo in less than three hours on the Saturday of the July 4 weekend, the morning after the conviction. And it was riddled with constitutional flaws including ineffective assistance of counsel, improper cross- examination and argument by prosecutor McGill, and inadequate instructions of law by Sabo.
Jackson says he did no preparation for the sentencing proceeding, gave no thought to the "available tactical approaches," and had only a perfunctory meeting with Jamal, at which he neither consulted with his bitterly estranged client on what to do nor looked at the statement that Jamal was about to read to the jury.
The best hope for persuading the jury that Jamal did not deserve to die was to establish the mitigating circumstance of good character, through testimony by some of his many friends and admirers -- journalists, politicians, and others. Yet Jackson did not call a single witness in the sentencing phase. (Jackson had called 15 character witnesses during the guilt phase. They testified briefly that Jamal was a peaceful and law-abiding man. But the rules would have allowed for far more detailed accolades at sentencing.)
Jackson's closing argument at sentencing was pathetic. He wasted time and credibility, for instance, quibbling with the prosecution's unassailable claim that Faulkner was a "peace officer" within the meaning of the statutory list of aggravating circumstances on the verdict form.
Jamal's own uncounseled and ill-advised statement to the jury made a disastrous situation worse. His assertion that "I am innocent despite what you 12 people think" was lost amid his attacks on the judge ("black-robed conspirator"), the prosecutor, and the defense lawyer ("this worthless sellout and shyster"), and his denigration of the jury. "Had he been actively seeking the death penalty, some have said, he could hardly have done a better job," Marc Kaufman wrote in the Inquirer after the trial.
But if Jamal helped dig his own grave, he was shoved into it by the police, the prosecutor, the judge, and the ineffective defense lawyer, in gross violation of the Constitution. And if Jamal seems a paranoid wacko when one first reads his rantings about a corrupt and dishonest system, a closer look suggests that maybe the system proved him right.
McGill -- in his cross-examination of Jamal at the sentencing -- made inflammatory use of political pronouncements Jamal had made as a Black Panther 12 years before, when he was 15 years old. McGill read from a 1970 newspaper clipping in which Jamal was quoted saying, "All power to the people," and asserting that blacks "are facing the reality that the Black Panther Party has been facing: Political power grows out of the barrel of a gun." McGill implied that these statements and Jamal's courtroom behavior showed that Jamal deserved to die.
"I saw it," said Jamal in a recent interview. "When [the name Black Panther] hit the jury, it was like a bolt of electricity -- pow."
This alone should require reversal of Jamal's sentence both under long-established First Amendment and death penalty case law, and under the logic of the Supreme Court's 8-to-1 decision in Dawson v. Delaware, in 1992. It held that a prosecutor violated the First Amendment in a death sentencing proceeding when he stressed the defendant's membership in a white racist prison gang called the Aryan Brotherhood. A defendant's "abstract beliefs," the Court held, could not be used to argue for a death sentence unless relevant to "the issue being tried."
McGill misleadingly suggested in his closing argument that the Jamal quotation showed that "this is not something that happened overnight" -- implying that Jamal had been looking for a chance to kill a cop -- and stressed that "one thing that cannot be tolerated is constant abuse of authority, defiance of authority, and daily law-breaking."
Daily law-breaking? For all his revolutionary rhetoric, the 27- year-old Jamal had a spotless criminal record. And "abuse of authority" is not supposed to be a capital offense in this country. (The Pennsylvania Supreme Court in 1989 unpersuasively upheld McGill's use of Jamal's political statements as showing his "long-standing disdain for the system.")
McGill also sought to minimize the jury's sense of responsibility by arguing, among other things, that the jurors could bring in a verdict of death without worrying too much about Jamal's being executed: He would have "appeal after appeal after appeal," and any verdict for death would not be final.
In my view, this violates several U.S. Supreme Court cases and a 1986 Pennsylvania Supreme Court precedent, which had struck down a man's death sentence because of nearly identical comments to the jury by the same Joseph McGill. (The Pennsylvania court, straining to distinguish these precedents, rejected Jamal's appeal on this point too.)
Judge Sabo's instructions of law to the jury were also constitutionally flawed in at least two respects: Sabo made no explicit mention of the jury's obligation to consider any evidence of overall good character as a mitigating circumstance. He also used a standard Pennsylvania verdict form that appears to violate principles later detailed in the 1988 Supreme Court decision in Mills v. Maryland, by leaving the false implication that unanimity might be required to find any such mitigating circumstance.
Celebrity on Death Row
After his 1982 trial, Jamal, like most death row inmates, largely disappeared from view. But by 1989 -- when his less-than-well- crafted direct appeal was spurned by the Pennsylvania Supreme Court -- the seeds were being planted for his remarkable rise to global celebrity. He has since emerged as the nation's premier anti-death penalty poster boy, and as a rallying point for what remains of the radical left.
In the late 1980s, Jamal's MOVE supporters brought his cause to the attention of the far left, New York-based Partisan Defense Committee, which portrayed Jamal as a political prisoner and began organizing protests around the country and in Europe. Jamal's cause was also taken up by other leftist groups, death penalty opponents, and black politicians.
Leonard Weinglass, a seasoned 62-year-old trial lawyer with a long list of leftist causes and criminals on his resume, was recruited by Jamal's family and friends and took over as lead counsel in early 1992. Weinglass has represented three defendants in the 1969-1970 Chicago Seven conspiracy trial as well as Angela Davis, Jane Fonda, Kathy Boudin, and various protesters, accused bombers, and killers. Working with Weinglass are his protege Daniel Williams, of New York's Moore & Williams; PDC staff counsel Rachel Wolkenstein; and Jonathan Piper, a 35-year-old associate at Chicago's Sonnenschein Nath & Rosenthal. Piper and others at his firm have put in thousands of pro bono hours on the case.
While his legal team was preparing for post-conviction appeals, Jamal was writing dozens of essays about prison life and the criminal justice system. He was published in the Yale Law Journal (in 1991), the Nation magazine, and elsewhere, and he taped radio broadcasts that were aired in New York, San Francisco, Canada, Cuba, England, France, Germany, and Australia. Addison-Wesley Publishing Co. collected many of these commentaries this spring in Jamal's book, Live from Death Row, which has been a commercial success.
The Sabo Circus: Part II
National and international media attention on Jamal's case reached a crescendo this summer, after Pennsylvania governor Thomas Ridge signed a death warrant on June 1, scheduling Jamal's execution for the week of August 13. Jamal's legal team filed his first state petition for post-conviction relief, as well as related motions for discovery, a stay of execution, and recusal of Judge Sabo -- some 300 pages in all -- on June 5.
Under Pennsylvania procedure, Judge Sabo had the option of presiding over the post-conviction proceeding, much of which consisted of attacks on his own conduct at the 1982 trial. Although semiretired, he seized the case with relish, summarily spurning contentions that he should recuse himself because of what Jamal's lawyers called his bias at Jamal's trial, his general bias against African-American capital defendants, and "his inability to endow this proceeding with . . . the appearance of fairness and impartiality."
This last accusation proved an understatement. Throughout the internationally scrutinized post-conviction hearing, which ran from July 26 to August 15, and the closing arguments on September 11, Judge Sabo flaunted his bias, oozing partiality toward the prosecution and crudely seeking to bully Weinglass, whose courtroom conduct was as correct as Sabo's was crass.
Sabo denied all of Jamal's discovery requests and quashed over 25 subpoenas, many of which sought evidence that Sabo had barred the lawyers from exploring through discovery or other witnesses. He sharply restricted Jamal's lawyers in their questioning of witnesses, and blocked them from making offers of proof on the record to show the import of the precluded testimony. In a letter to Sabo, Weinglass complained that the judge's conduct "raises the troubling spectre of attempting to defeat judicial review."
Sabo also hurled two unwarranted contempt-of-court citations at Jamal's lawyers. On August 2 he ordered Rachel Wolkenstein handcuffed and arrested for repeatedly seeking to explain for the record the relevance of two witnesses whose subpoenas Sabo had quashed. And on August 11 Sabo fined Leonard Weinglass $1,000 for failing to hand over some photographic slides quickly enough.
"We were in some kind of a game where, when we complied with a request or a ruling, the rules changed," recalls Weinglass, adding that Sabo and the late judge Julius Hoffman of Chicago Seven fame are the only two judges who have held him in contempt. Asked to compare the two, Weinglass responds: "Judge Hoffman had a lot more finesse and a good sense of humor. Judge Sabo is just a blunderbuss of bias."
Jamal's lawyers did not hit any home runs at the hearing, and had some setbacks. Their new witnesses -- including William Singletary and Arnold Howard -- were less than credible. But they did succeed in doggedly piling up a record that, when scrutinized in detail, establishes the unfairness of Jamal's trial and sentencing; casts a dark shadow over the integrity of the system that put him on death row; raises substantial doubt about whether this was a first-degree murder; and leaves a lingering question whether Jamal killed Faulkner at all.
Sabo rejected Jamal's petition on September 15, four days after receiving the parties' post-hearing briefs and hearing their closing arguments. Much of his 154-page opinion was lifted verbatim from the prosecution's proposed findings of fact and conclusions of law. Jamal's lawyers have appealed to the Pennsylvania Supreme Court. If they lose there, they will seek federal habeas corpus review.
What Should Be Done
A careful appraisal of the facts, and a scrupulous application of the constitutional precedents, would lead a reviewing court to reverse both Jamal's sentence and his conviction, and to grant him a new trial. (That's not a prediction.)
But while I have no doubt that Jamal's death sentence should be reversed, I initially hesitated to call for a new trial, and I suspect that judges might hesitate as well.
The reason (which no judge would admit) is this: Big-city juries can no longer be counted on to convict -- even when the defendant is clearly a vicious murderer -- in racially charged cases poisoned by police misconduct. See, for example, People v. Orenthal James Simpson. So a new trial for Jamal might very well mean an acquittal.
And the evidence that Jamal shot Faulkner -- and probably fired the fatal shot -- remains very strong, even if, as I believe, both of Jamal's "confessions" were fabrications, and the police and prosecutors cannot be trusted, and the eyewitness testimony was unreliable, and someone ran away from the scene, perhaps after shooting Faulkner at least once.
Is it clear beyond a reasonable doubt that Jamal killed Faulkner? I lean toward that conclusion, but with some ambivalence. I still have a nagging little question about whether the real killer may have gotten away. And the evidence that tips me toward finding Jamal guilty beyond a reasonable doubt is supposed to be irrelevant (under Fifth Amendment case law), and would be inadmissible at any retrial.
That evidence is the 14-year-long silence of both Jamal and his brother, William Cook, about what happened. Neither of them has ever said how Faulkner was killed, or even denied explicitly that Jamal killed him. Not on the day of the murder. Not at Jamal's trial. And not during the 14 years since.
The most Jamal has ever said about the murder was his statement to the jury during the sentencing phase that "I am innocent of these charges."
What's that supposed to mean? Jamal's lawyers say it means Jamal didn't shoot Faulkner. I'm not so sure. This is a man who chooses words with care. If he were truly innocent, wouldn't he have found at least one occasion, in the 5,000 days since Faulkner's death, publicly to say something like "I didn't shoot him"? And to explain who did?
Jamal will not answer such questions. Although he has granted some interviews, he declined my request for one, through his lawyers, after I refused to agree to their condition that I promise in advance not to ask Jamal anything about what happened the morning of Faulkner's death.
The silence of Jamal and Cook leaves me convinced beyond a reasonable doubt that Jamal shot Faulkner at least once, and comes very close to convincing me that he fired the fatal shot. Still, there is good reason to believe that if Jamal did fire the fatal shot, he acted with a mental state somewhere on the spectrum of culpability between manslaughter and classic first-degree murder, because he resorted to deadly force only after seeing Faulkner beating Cook bloody, and probably only after being shot by Faulkner.
And for doing that -- in the interval of a few seconds that crashed without warning into what had for 27 years been a largely admirable life -- the appropriate penalty is less than death, and less than life without parole. The maximum penalty for manslaughter in Pennsylvania in 1981 was ten years, with parole eligibility after five. I'm not sure that this was a mere manslaughter, and I'm not sure that the 14 years Jamal has already spent behind bars -- mostly in the hell-on-earth called death row -- is punishment enough. But it's close.
And that is reason enough to put aside any qualms about the possibility that granting Jamal the appropriate legal relief might lead to his walking free. He deserves a new trial, and he should get one.
(The American Lawyer is an affiliate publication of Court TV.)
Copyright 1995, American Lawyer Media.
I see there's a homophobe loser who hasn't bothered to read the 5000 pages of evidence and court precedings at http://www.danielfaulkner.com/.
Guess some people think killing cops and insulting people who find that sort of thing reprehensible is better than learning the facts.
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