By Hans Bennett

On April 6, 2009, the US Supreme Court refused to consider an appeal from death-row journalist and former Black Panther, Mumia Abu-Jamal, who was convicted of first-degree murder in the shooting death of white Philadelphia Police Officer, Daniel Faulkner, at a 1982 trial deemed unfair by Amnesty International, the European Parliament, the Japanese Diet, Nelson Mandela, and numerous others. Citing the Supreme Court denial and several instances of withheld evidence, Abu-Jamal’s international support network is now calling for a federal civil rights investigation into Abu-Jamal’s case.

The facts of the Abu-Jamal/Faulkner case are highly contested, but all sides agree on certain key points: Abu-Jamal was moonlighting as a taxi-driver on December 9, 1981, when, shortly before 4:00 a.m., he saw his brother, William “Billy” Cook, in an altercation with Officer Faulkner after Faulkner had pulled over Cook’s car at the corner of 13th and Locust Streets, downtown Philadelphia. Abu-Jamal approached the scene. Minutes later when police arrived, Faulkner had been shot dead, and Abu-Jamal had been shot in the chest. The bullet removed from Faulkner, reportedly a .38, was officially too damaged to match it to the legally registered .38 caliber gun that Abu-Jamal says he carried as a taxi driver, after he was robbed several times on the job. Further, Amnesty International has criticized the official “failure of the police to test Abu-Jamal’s gun, hands, and clothing” for gunshot residue, as “deeply troubling.” Abu-Jamal has always maintained his innocence, and today still fights the conviction from his death-row cell in Waynesburg, PA, where he also records weekly radio commentaries, and has now written six books.

Recently, Abu-Jamal had petitioned the US Supreme Court to review the US Third Circuit Court ruling of March, 27 2008, which rejected his bid, based on three issues, for a new guilt-phase trial. One issue was that of racially discriminatory jury selection, based on the 1986 case Batson v. Kentucky, on which the three-judge panel split 2-1, with Judge Thomas Ambro dissenting. Ambro argued that prosecutor Joseph McGill’s use of 10 out of his 15 peremptory strikes to remove otherwise acceptable African-American jurors, was itself enough evidence of racial discrimination to grant Abu-Jamal a preliminary hearing that could have led to a new trial. In denying Abu-Jamal this preliminary hearing, Ambro argued that the Court was creating new rules that were being exclusively applied to Abu-Jamal’s case. The denial "goes against the grain of our prior actions…I see no reason why we should not afford Abu-Jamal the courtesy of our precedents," wrote Ambro.

In his new essay titled “The Mumia Exception,” author J. Patrick O’Connor argues that the Third Circuit Court’s rejection of the Batson claim and of the other two issues presented is only the latest example of the courts’ longstanding practice of altering existing precedent to deny Abu-Jamal legal relief. O’Connor cites many other problems, including the 2001 affidavit by a former court stenographer, who says that on the eve of Abu-Jamal’s trial, she overheard Judge Albert Sabo say to someone at the courthouse that he was going to “help” the prosecution “fry the nigger,” referring to Abu-Jamal. Common Pleas Judge Pamela Dembe rejected this affidavit on grounds that even if Sabo had made the comment, it was irrelevant as long as his “rulings were legally correct.”

The phrase “Mumia Exception” was first coined by Linn Washington, Jr., a Philadelphia Tribune columnist and professor of journalism at Temple University, who has covered this story since the day of Abu-Jamal’s 1981 arrest. Washington criticizes the Third Circuit’s ruling against Abu-Jamal’s claim that Judge Sabo had treated him unfairly at the 1995-97 Post-Conviction Relief Act (PCRA) hearings, which was another issue the Circuit Court had considered. Citing “the mound of legal violations in this case,” Washington says “the continuing refusal of U.S. courts to equally apply the law in the Abu-Jamal case constitutes a stain on America’s image internationally.”

Launched Campaign Cites Withheld Evidence

The Philadelphia Inquirer has reported that supporters of Mumia Abu-Jamal are responding to the March 2009 US Supreme Court ruling by launching a campaign calling for a federal civil rights investigation into Abu-Jamal’s case. The campaign’s supporters include the Riverside Church’s Prison Ministry, actress Ruby Dee, professor Cornel West, and US Congressman Charles Rangel, who is Chairman of the House Committee on Ways and Means. In 2004, the NAACP passed a resolution supporting a new trial for Abu-Jamal, and campaign supporters will be gathering to publicize the civil rights campaign at the upcoming NAACP National Convention in New York City, July 11-16, and to pressure the NAACP to honor their earlier resolutions by actively supporting the current campaign seeking an investigation. Supporters will then be in Washington, DC on July 22 to lobby their elected officials, and in mid-September, they’ll return to Washington, DC for a major press conference.

Thousands of signatures have been collected for a public letter to US Attorney General Eric Holder, which reads: “Inasmuch as there is no other court to which Abu-Jamal can appeal for justice, we turn to you for remedy of a 27-year history of gross violations of US constitutional law and international standards of justice.” The letter cites Holder’s recent investigation into the case of former Senator Ted Stevens, which led to all charges against him being dropped: “You were specifically outraged by the fact that the prosecution withheld information critical to the defense’s argument for acquittal, a violation clearly committed by the prosecution in Abu-Jamal’s case. Mumia Abu-Jamal, though not a US Senator of great wealth and power, is a Black man revered around the world for his courage, clarity, and commitment, and deserves no less than Senator Stevens.”

Several campaigns seeking a civil right investigation into the Abu-Jamal case have been launched since 1995, at which time, the Congressional Black Caucus (CBC) was one of many groups that publicly supported an investigation. In a 1995 letter written independently of the CBC, Representatives Chaka Fattah, Ron Dellums, Cynthia McKinney, Maxine Waters, and John Conyers (now Chairman of the House Judiciary Committee) stated, “There is ample evidence that Mr. Abu-Jamal’s constitutional rights were violated, that he did not receive a fair trial, and that he is, in fact, innocent.” Assistant Attorney General Andrew Fois responded to the CBC’s request, and in a September 1995 rejection letter written to Congressman Ron Dellums, Fois conceded that even though there is a 5-year statute of limitations for a civil rights investigation, the statute does not apply if “there is significant evidence of an ongoing conspiracy.” One of the 2009 campaign’s organizers is Dr. Suzanne Ross, a spokesperson for the Free Mumia Abu-Jamal Coalition of New York City. Citing Andrew Fois’ letter, Ross argues that the “continued denial of justice to Mumia in the federal courts, as documented by dissenting Judge Thomas Ambro,” is evidence of an “ongoing conspiracy,” and thus merits an investigation. “Throughout the history of this case, we were always told ‘Wait until we get to the federal courts. They will surely overturn the racism and gross misconduct of Judge Sabo,’ but we never got even a preliminary hearing on the issue considered most winnable: racial bias in jury selection, the so called Batson issue.” Ross also criticizes the Third Circuit’s denial of Abu-Jamal’s claim that Judge Sabo was unfair at the 1995-97 PCRA hearings, and considers this denial to be further evidence of an “ongoing conspiracy.” Ross argues that the courts’ continued affirmation of Sabo’s rulings during the PCRA hearings, and Sabo’s ultimate ruling that nothing presented at the PCRA hearings was significant enough to merit a new trial, serves to legitimize numerous injustices throughout Abu-Jamal’s case.

Specifically referring to the issue of withheld evidence, that was central to the case of former Senator Ted Stevens, organizer Suzanne Ross identifies five key instances in Abu-Jamal’s case, where “evidence was withheld that could have led to Mumia’s acquittal.” The DA’s office withheld two items from Abu-Jamal’s defense: the actual location of the driver’s license application found in Officer Faulkner’s pocket; and Pedro Polakoff’s crime scene photos. Then, at the request of prosecutor McGill, Judge Sabo ruled to block three items from the jury: prosecution eyewitness Robert Chobert’s probation status and criminal history; testimony from defense eyewitness Veronica Jones about police attempts to solicit false testimony; and testimony from Police Officer Gary Waskshul.

DA Suppresses Evidence About Kenneth Freeman

In their recent books, Michael Schiffmann (Race Against Death: The Struggle for the Life and Freedom of Mumia Abu-Jamal, 2006) and J. Patrick O’Connor (The Framing of Mumia Abu-Jamal, 2008) argue that the actual shooter of Officer Faulkner was a man named Kenneth Freeman. Schiffmann and O’Connor argue that Freeman was an occupant of Billy Cook’s car, who shot Faulkner in response to Faulkner having shot Abu-Jamal first, and then fled the scene before police arrived.

Central to Schiffmann and O’Connor’s argument was the presence of a driver’s license application for one Arnold Howard, which was found in the front pocket of Officer Faulkner’s shirt. Abu-Jamal’s defense would not learn about this until 13 years later, because the Police and DA's office had failed to notify them about the application’s crucial location. Journalist Linn Washington argues that this failure was "a critical and deliberate omission," and "a major violation of fair trial rights and procedures. If the appeals process had any semblance of fairness, this misconduct alone should have won a new trial for Abu-Jamal.” More importantly, Washington says "this evidence provides strong proof of a third person at the scene along with Faulkner and Billy Cook. The prosecution case against Abu-Jamal rests on the assertion that Faulkner encountered a lone Cook minutes before Abu-Jamal's arrival on the scene, but Faulkner got that application from somebody other than Cook, who had his own license."

At the 1995 PCRA hearing, Arnold Howard testified that he had loaned his temporary, non-photo license to Kenneth Freeman, who was Billy Cook’s business partner and close friend. Further, Howard stated that police came to his house early in the morning on Dec. 9, 1981, and brought him to the police station for questioning because he was suspected of being “the person who had run away” from the scene, but he was released after producing a 4:00 a.m. receipt from a drugstore across town (which provided an alibi) and telling them that he had loaned the application to Freeman (who Howard reports was also at the police station that morning).

Also pointing to Freeman’s presence in the car with Cook, O’Connor and Schiffmann cite prosecution witness Cynthia White’s testimony at Cook’s separate trial for charges of assaulting Faulkner, where White describes both a “driver” and a “passenger” in Cook’s VW. Also notable, investigative journalist Dave Lindorff’s book (Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal, 2003) features an interview with Cook’s lawyer Daniel Alva, in which Alva says that Cook had confided to him within days of the shooting that Freeman had been with him that morning.

Linn Washington argues that "this third person at the crime scene is consistent with eyewitness accounts of the shooter fleeing the scene. Remember that accounts from both prosecution and defense witnesses confirm the existence of a fleeing shooter. Abu-Jamal was arrested at the scene, critically wounded. He did not run away and return in a matter of seconds." Eyewitnesses Robert Chobert, Dessie Hightower, Veronica Jones, Deborah Kordansky, William Singletary, and Marcus Cannon all reported, at various times, that they saw one or more men run away from the scene. O’Connor writes that “some of the eyewitnesses said this man had an Afro and wore a green army jacket. Freeman did have an Afro and he perpetually wore a green army jacket. Freeman was tall and burly, weighing about 225 pounds at the time.” Then there’s eyewitness Robert Harkins, whom prosecutor McGill did not call as a witness. O’Connor postulates that the prosecutor’s decision was because Harkins’ account of a struggle between Faulkner and the shooter that caused Faulkner to fall on his hands and knees before Faulkner was shot “demolished the version of the shooting that the state’s other witnesses rendered at trial.” O’Connor writes further that “Harkins described the shooter as a little taller and heavier than the 6-foot, 200-pound Faulkner,” which excludes the 6’1”, 170-lb Abu-Jamal.

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