Mumia NYC: Mumia’s beste (und letzte) Chance für einen neuen Prozess

Von: „Steve Bloom“ <………………>

Betreff: FW: [MumiaNYC]

Mumia’s Best (and Last) Chance For a New Trial:

A Legal Update

Datum: Montag, 27. November 2006

—–Original Message—–

From: MumiaNYC@yahoogroups.com

On Behalf Of mumianyc

Sent: Friday, November 24, 2006 11:38 AM

Subject: [MumiaNYC] Mumia’s Best (and Last) Chance For a New Trial: A

Legal Update

 

 Mumia’s Best (and Last) Chance For a New Trial: A Legal Update Black

death-row prisoner Mumia Abu-Jamal’s battle in court heats up as case is

now on fast track with public hearings set to begin by Hans Bennett

  

„Our objective is to win a new and fair trial in this case. At the

conclusion of the retrial I want my client to walk out of the courtroom

a free person.“

 

On October 23, attorney Robert R. Bryan (attorney for death-row prisoner

Mumia Abu-Jamal) filed the 4th Step Reply Brief with the U.S. Court of

Appeals for the Third Circuit, Philadelphia. Because this should be the

last round of reply briefs, Bryan estimates that the public hearing of

arguments should begin within three months. After the hearing, the

panel of judges will then decide whether to grant Abu-Jamal a new trial.

 

This current stage in Abu-Jamal’s appeal process began in December,

2005, when the 3rd Circuit announced the beginning of deliberations and

suprised many by agreeing to consider two claims not „certified for

appeal“ by Federal District Court Judge William Yohn in 2001.

 

Mumia’s attorney Robert R. Bryan declared it to be „the most important

decision affecting my client since his 1981 arrest, for it was the first

time there was a ruling that could lead to a new trial and his freedom.“

 

In 1982, Abu-Jamal was convicted of killing white Philadelphia police

officer Daniel Faulkner in a trial that Amnesty International has

declared a „violation of minimum international standards that govern

fair trial procedures and the use of the death penalty,“

 

Calling for a new trial, supporters around the world feel that the

original one was tainted by racism, prosecutorial & judicial misconduct,

coerced witnesses, suppressed evidence, and a denial of Mumia’s

constitutional right to represent himself.

 

Best (and Last) Chance For a New Trial

The 3rd Circuit is now ruling on the 2001 decision by Judge Yohn which

affirmed Abu-Jamal’s guilt but overturned the death sentence. Citing

the 1988 Mills v. Maryland precedent, Yohn ruled that sentencing forms

used by jurors and Judge Sabo’s instructions to the jury were confusing.

Subsequently, jurors mistakenly believed that they had to unanimously

agree on any mitigating circumstances in order to be considered as

weighing against a death sentence.

 

Mumia’s case is now in the federal Third Circuit Court of Appeals. DA

Lynne Abraham is appealing the death penalty ruling while Mumia is

appealing the guilty verdict.

 

If the penalty ruling is overturned, a new execution date will be set

for Mumia. If his ruling is upheld, the DA can still impanel a new jury

to rehear the penalty phase, which could then sentence Mumia to

death–regardless of the 3rd Circuit ruling.

 

Because the DA appealed Yohn’s death penalty decision, Mumia has never

left death row, and is still unable to have such „privileges“ as

full-contact visits with his family.

 

Four Reasons For a New Trial

The courts are now considering the following four issues:

 

#1. Whether the penalty phase of Mumia’s trial violated the legal

precedent set by the US Supreme Court’s 1988 Mills v. Maryland ruling.

This issue was Yohn’s grounds for overturning the death sentence and is

now being appealed by the DA. The NAACP Legal Defense Fund has filed a

„friend of the court“ brief in support of this claim.

 

#2. „Certified for appeal“ by Yohn in 2001, the Batson claim, addresses

the prosecution’s use of peremptory challenges to exclude Blacks from

Mumia’s jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky

that a defendant deserves a new trial if it can be proved that jurors

were excluded on the grounds of race. The NAACP Legal Defense Fund has

filed a „friend of the court“ brief in support of this claim.

 

At Mumia’s trial, Prosecutor McGill used 11 of his 15 peremptory

challenges to remove black jurors that were otherwise acceptable. While

Philadelphia is 44% black, Abu-Jamal’s jury was composed of ten whites

and only two blacks. From 1977-1986 when current Pennsylvania governor

Ed Rendell was Philadelphia’s District Attorney, the evidence of racism

is striking: from 1977-86, the Philadelphia DA struck 58% of black

jurors, but only 22% of white jurors.

 

#3. The legality of McGill’s statement to the jury minimizing the

seriousness of a verdict of guilt: „if you find the Defendant guilty of

course there would be appeal after appeal and perhaps there could be a

reversal of the case, or whatever, so that may not be final.“

 

In 1986 the Pennsylvania Supreme Court ruled against McGill in another

case (Commonwealth v. Baker) on the same grounds. When Abu-Jamal

addressed this same issue in his 1989 appeal with the State Supreme

Court, the court reversed its decision on the legality of such a

statement–ruling against the claim for a mistrial.

 

Incredibly, just one year later, in the very next case involving this

issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped

and restored the precedent. However, this would not affect the ruling

against Mumia, because the court ruled that this precedent would only

apply in „future trials.“ This suggests that the rulings were designed

to specifically exclude Mumia’s case from its precedent.

 

#4. The fairness of Mumia’s 1995-97 PCRA hearings when the retired,

74-year-old Judge Sabo was called back specifically for the hearing.

Besides the obvious unfairness of recalling the exact same judge to rule

on his fairness in the original 1982 trial, his actual PCRA bias has

been extensively documented.

 

During the 1995 hearings, even the mainstream Philadelphia Inquirer

wrote that the „behavior of the judge in the case was disturbing the

first time around–and in hearings last week he did not give the

impression to those in the courtroom of fair mindedness. Instead, he

gave the impression, damaging in the extreme, of undue haste and

hostility toward the defense’s case.“

 

Concluding the PCRA hearing, Sabo rejected all evidence and every

witness presented by the defense as not being credible. Therefore, Sabo

upheld all of the facts and procedures of the original trial as being

correct.

 

This fourth claim is potentially the most explosive because the PCRA

evidence that was judged „not credible“ exposed much more than an unfair

trial. Despite Judge Sabo and the DA’s best efforts to

minimize and discredit, proof of an extensive police frame-up emerged.

 

 

Gary Wakshul and the False Confession

Arguably the strongest evidence against Mumia was suspiciously

introduced two months after his arrest. When interviewed (in February,

1982) by the police Internal Affairs Bureau investigating Mumia’s police

brutality complaint, Officers Wakshul, Bell, and hospital security guard

Priscilla Durham then reported Mumia’s supposed „hospital confession“

for the first time.

 

Mumia allegedly declared (in the presence of 15-20 other cops that have

never confirmed it): „I shot the motherfucker and I hope the

motherfucker dies!“

 

Testifying in 1982, Bell (Faulkner’s partner and „best friend“) claimed

the two month mental lapse resulted from being so upset about Faulkner’s

death.

 

At trial, Durham contradicted her statement to police and testified that

she reported the confession to her supervisor the next day.

While neither her supervisor or the alleged hand-written statement were

presented in court, the DA sent an officer to the hospital–returning

with a suspicious typed version of the alleged report. Sabo accepted

the paper (not signed or dated) despite both Durham’s disavowal of it

(because it was typed and not hand-written) and the defense’s protest

that there was no establishment of authorship or authenticity.

 

Unfortunately, the jury never heard the most explosive evidence

discrediting the confession. While the DA called Bell and Durham to

testify, Wakshul was suspiciously absent. On the final day of testimony

in 1982, Mumia’s lawyer discovered Wakshul’s statement from Dec.9–the

morning of the shooting. After riding with Mumia to the hospital and

guarding him until his treatment, Wakshul reported: „the negro male made

no comment.“

 

When the defense immediately sought to call Wakshul as a witness–the

DA reported that he was on vacation. On grounds that it was too late in

the trial, Sabo denied the defense request to locate him for testimony.

Subsequently, the jury never heard from Wakshul or about his written

report. When an outraged Mumia protested, Sabo cruelly

declared: „You and your attorney goofed.“

 

Wakshul’s „negro male“ report was key evidence at the PCRA hearings, and

it was well-known that he would have to testify to defend his

„confession“ story. Unknown to Mumia’s lawyers, on July 13 (days before

his PCRA testimony) Wakshul was savagely beaten by undercover police

officers in front of a Judge in the Common Pleas Courtroom where he

worked as a court crier. Almost two years later, the two attackers

(members of Philly’s Vice Squad) were suspended without pay as

punishment. With the motive still unexplained, the beating was likely

used to intimidate Wakshul into maintaining his „confession“ story at

the PCRA hearings.

 

On the stand, Wakshul defended both his Dec.9 report and the two month

delay as just being a bad mistake. Further discrediting the „confession“

story, he repeated his incredible statement given to the IAB

investigator in 1982: „I didn’t realize it had any importance

until that day.“

 

The original trial’s injustice was further exposed when Wakshul

testified to being home for his 1982 vacation–in accordance with

explicit instructions to stay in town for the trial so that he could

testify if called.

 

The „confession“ story has been thoroughly discredited. As Amnesty

International concluded: „The likelihood of two police officers and a

security guard forgetting or neglecting to report the confession of a

suspect in the killing of another police officer for more than two

months strains credulity.“

 

The Ballistics

At the PCRA hearings, defense ballistics expert George Fassnacht

testified that he declined a request to assist Mumia’s defense in 1982

because the court-allocated $150 was insufficient. Subsequently the

defense never presented their own specialist. While testifying that the

fatal bullet was probably the same caliber as Mumia’s gun (legally

purchased after his Taxi was repeatedly robbed), Fassnacht challenged

the prosecution’s 1982 evidence in two key ways.

 

#1. Fassnacht defined „particular“ and „general“ rifling

characteristics. „Particular“ traits are „the small stria or scratches

which identify a particular bullet“ as coming from one specific gun.

In contrast, „general“ traits can only link a bullet to a particular

type of gun.

 

Police experts have always said that the fatal bullet was too damaged to

link the „particular“ traits to Mumia’s 38 caliber Charter Arms

revolver.

 

Fassnacht noted an unexplainable contradiction in police ballistic

expert Anthony Paul’s original report. Paul first describes the

bullet’s „general“ traits as „indeterminable.“ Contradicting himself

in the same report, Paul later identified a general trait: a „right-hand

direction of twist.“ Paul’s 1982 testimony went further by identifying

another general trait never mentioned in his written report „8 lands and

8 grooves.“

 

After deeming the general traits „indeterminable,“ Paul then alleged two

general traits that conveniently implicated Mumia’s gun type.

 

#2. Police did not officially perform two basic forensics tests–the

„smell“ and „wipe“ tests. It is standard to „smell“ the gun’s barrel

for gunpowder (which can be smelled up to 4 or 5 hours after discharge).

The „wipe test“ checks for gunshot residue on suspects‘ hands and

clothing.

 

When challenged by the DA, Fassnacht insisted that these tests are

reliable and routinely used.

 

Quoting Amnesty International: „the failure of the police to test

Abu-Jamal’s gun, hands, and clothing is deeply troubling.“ Most likely,

police did perform the tests, but hid this when the results did not

implicate Mumia. This obvious ballistics manipulation seriously

challenges the credibility of other evidence, such as the police

allegation that Mumia’s gun was at his side with five spent cartridges

when police arrived.

 

#3. In 1982, prosecutor McGill argued that Mumia had been shot in the

chest from below by a falling Faulkner. Recognizing the bullet’s

downward trajectory McGill claimed that the bullet ricocheted off bone

within Mumia’s torso and then tumbled in a downward direction.

 

Challenging this far-fetched theory, medical examiner John Hayes

testified in 1995 that X rays proved the bullet traveled without any

deflection. Easily disproving the official scenario, Mumia was probably

shot while running across the street towards Faulkner and his brother.

 

Veronica Jones Exposes Coerced Testimony

Veronica Jones‘ 1996 PCRA testimony exposed police coercion of witnesses

and further discredited the the 1982 testimony of the DA’s star witness:

prostitute Cynthia White (the only one to actually testify to seeing

Abu-Jamal pull the trigger).

 

The story begins on Dec.15, 1981 when Jones (a prostitute who was

working nearby on Dec.9) first told police that she had seen two men

„jogging“ away from the crime scene before police arrived. Testifying

in 1982, Jones recanted and denied ever making the statement.

However, when asked if she had talked to the police since her first

statement, Jones testified that police had visited her in jail the next

month:

 

„They were getting on me telling me I was in the area and I seen Mumia,

you know, do it…They were trying to get me to say something that the

other girl [Cynthia White] said. I couldn’t do that.“ Jones reported

that police offered to let her and White „work the area if we tell

them.“

 

Calling her testimony “ absolutely irrelevant,“ the DA moved to block

the line of questioning and strike the previous statements. Because

Sabo happily complied, the jury was ordered to disregard Jones‘

statement regarding White and a police offer of freedom to „work the

area“ in return for testimony that Abu-Jamal shot Faulkner.

 

The DA and Sabo’s efforts to silence Jones continued through to the PCRA

hearings.

 

Unable to locate her earlier, the Defense found Jones in 1996, and

(over the DA’s protests) obtained permission from the State Supreme

Court to extend the PCRA hearings for Jones‘ testimony. Sabo vehemently

resisted–arguing that there was not sufficient proof of her

unavailability in 1995. However, in 1995 Sabo had refused to order the

DA’s disclosure of Jones‘ home address to the defense team.

 

The defense returned to the State Supreme Court–which then ordered

Sabo to conduct a full evidentiary hearing. Sabo’s attempts to silence

Jones continued as she took the stand. He immediately threatened her

with 5-10 years imprisonment if she testified to having perjured herself

in 1982. In defiance, Jones testified to perjury in 1982 when she

recanted seeing two men „run away“ and „leave the scene.“

She testified to changing her version of events after being visited by

two detectives in prison, where she was being held on charges of

robbery and assault. Urging her to finger Mumia, the detectives

stressed that she faced up to 10 years in prison and the loss of her

children if convicted. Afraid of losing her children, Jones testified

to meeting the police halfway: she didn’t actually finger Mumia, but she

did lie about not seeing two men running from the scene. Accordingly,

Jones only received probation and was never imprisoned for these 1982

charges.

 

During cross-examination, the DA announced that there was an outstanding

arrest warrant for Jones on charges of writing a bad check, and that she

would be arrested after concluding her testimony. Tears pouring down

her face, Jones declared: „This is not going to change my testimony!“

 

Despite objections from the defense, Sabo allowed New Jersey police to

handcuff and arrest Jones.

 

While the DA attempted to use this arrest to discredit Jones, her

determination in the face of intimidation only made her more credible.

Outraged by Jones‘ treatment, even the mainstream Philadelphia Daily

News reported: „Such heavy-handed tactics can only confirm suspicions

that the court is incapable of giving Abu-Jamal a fair hearing. Sabo

has long since abandoned any pretense of fairness.“

 

The same coercion of witnesses by police, DA, and judge exposed by

Jones‘ story was rampant in Mumia’s case. Documented by Amnesty

International, witnesses Cynthia White (a prostitute facing multiple

charges) and Robert Chobert (an arsonist on probation, driving his cab

intoxicated and without a license) also „altered their descriptions of

what they saw, in ways that supported the prosecution’s version of

events.“

 

 

„I’m Going To Help Them Fry The Nigger“

In 2001 another witness–Terri Mauer-Carter–challenged Sabo’s

integrity, but the State Supreme Court ruled against the defense’s right

to include her affidavit in their current federal appeal.

Mauer-Carter was working as a stenographer in the Philadelphia Court

system on the eve of Mumia’s 1982 trail when she states that she

overheard judge Sabo say in reference to Mumia’s case that he was going

to help the prosecution „fry the nigger.“

 

Journalist Dave Lindorff recently interviewed Mauer-Carter’s former

boss, Richard Klein, who was with Mauer-Carter when she states she

overheard Sabo. A Philadelphia Common Pleas Court judge at the time,

who now sits on PA’s Superior Court, Klein told Lindorff: „I won’t say

it did happen, and I won’t say it didn’t. That was a long time ago.“

Lindorff considers Klein’s refusal to firmly reject Mauer-Carter’s claim

to be an affirmation of her statement.

 

The State Supreme Court ruling was an affirmation of lower-level Judge

Patricia Dembe’s argument that even if Maurer-Carter is correct about

Sabo’s stated intent to use his position as Judge to throw the trial and

help the prosecution „fry the nigger,“ it doesn’t matter.

According to Dembe, since it „was a jury trial, as long as the presiding

Judge’s rulings were legally correct, claims as to what might have

motivated or animated those rulings are not relevant.“

Organizing for December 9

Interviewed by INSUBORDINATION, Pam Africa (coordinator of Mumia’s

support network) stressed the urgency of the legal battle and the need

to apply political pressure from the grassroots. „We must call

attention to Mumia’s current battle in the courts. We know the Supreme

Court won’t hear his case, so this current phase truly is the last

chance for a new trial.“

 

„I believe Mumia is innocent and am personally calling for his immediate

release. However, I’ll work with anyone supporting a fair trial. By

demanding a new trial, we can work with those who know the trial was

rotten but are unsure of Mumia’s innocence. As more people learn about

the injustice, our movement will only become stronger.

The evidence is on Mumia’s side.“

 

Activist around the country are organizing for Dec. 9–the 25th

anniversary of Mumia’s incarceration. Africa is urging supporters to

come to Philly for a massive demonstration or to otherwise organize an

event in their hometown.

 

Concluding her fiery speech, Africa challenged the crowd to „rise up“

and force the courts to actually serve the people. „We understand that

they’re getting ready to kill another black revolutionary who has

refused to bow down and suck up to his oppressor. Mumia’s case

represents all that is wrong with this system. We must take action now

before it is too late!“

 

Link to Bennett’s recent essay: Is It a Crime to Honor Mumia?

http://insubordination.blogspot.com/2006/11/is-honoring-mumia-crime_17.h

tml

 

 

Hans Bennett is a Philadelphia-based photojournalist who has been

documenting the movement to free Mumia and all political prisoners for

more than 5 years. He can be contacted via email:

hbjournalist@gmail.com

Check out his brand new website: www.insubordination.blogspot.com

 

link to the October 23 legal brief:

www.millions4mumia.org/alerts/2006OCT5.pdf

 

 

For more information about Mumia Abu-Jamal’s case:

 

www.mumia.org or www.freemumia.com

 

 

 

 

–Mumia is Innocent! Stop the Frame Up! Free Mumia!–

 

Free Mumia Abu-Jamal Coalition, NYC, P.O. Box 16, College Station, NY,

NY 10030 212-330-8029, www.FreeMumia.com, info@FreeMumia.com

 

YC, P.O. Box 16, College Station, NY, NY 10030

212-330-8029, www.FreeMumia.com , info@FreeMumia.com

 

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