Hans Bennett, International Action Center, April 16, 2008
On March 27, the U.S. Third Circuit Court of Appeals ruled against granting a new guilt-phase trial to world-famous journalist and death row prisoner Mumia Abu-Jamal. While ruling against the three issues that could have led to a new guilt-phase trial, the court affirmed U.S. District Court Judge Yohn’s 2001 decision overturning the death sentence. If the district attorney wants to re-instate the death sentence, the D.A. must call for a new penalty-phase jury trial that would be limited to the question of life in prison without a chance of parole or a reinstatement of the death sentence.
Outraged by this decision, Abu-Jamal’s supporters around the world held “day after” protests, and are now organizing a mass demonstration in Philadelphia on April 19, just days before the Pennsylvania presidential primary election. Simultaneously, Abu-Jamal is appealing the court ruling “en banc” to the entire Third Circuit, and if unsuccessful there, he will appeal to the U.S. Supreme Court, in an effort to be granted a new guilt-phase trial.
At this critical juncture in Abu-Jamal’s case, an explosive new book is set for release in May, titled “The Framing of Mumia Abu-Jamal,” by J. Patrick O’Connor, and published by Lawrence Hill Books. O’Connor explains that he was “an associate editor for TV Guide at its headquarters in nearby Radnor, Pa., during the time Officer Faulkner was killed and Abu-Jamal was put on trial and convicted of murdering him. ... Sometime in the mid-1990s I began hearing and seeing the ‘Free Mumia’ slogan.
“In 1996, when HBO premiered the one-hour documentary ‘Mumia Abu-Jamal: A Case for Reasonable Doubt?,’ I developed some questions about the verdict and certainly the fairness of his trial.”
Soon, O’Connor had “read all the trial transcripts as well as all of the transcripts from Abu-Jamal’s Post-Conviction Relief Act hearings that were held in 1995, and continued in 1996 and 1997. I also read all the contemporaneous newspaper articles from the Philadelphia Inquirer and Philadelphia Daily News, as well as all the books published about the case.”
In his new book, O’Connor argues that Abu-Jamal was clearly framed by police, and that the actual shooter was a man named Kenneth Freeman. O’Connor criticizes the local media, who, he says, “bought into the prosecution’s story line early on and has never been able to see this case for what it is: a framing of an innocent and peace-loving man.”
In his review of the recent book “Murdered by Mumia,” O’Connor writes that “there’s a great deal to admire about Maureen Faulkner, the widow of Philadelphia Police Officer Daniel Faulkner,” but concludes that her “obsessive hate for Abu-Jamal has blinded her to the prosecutorial misconduct and judicial bias that plagued his trial and justifiably fueled his rise to a world stage. The real villains in her life were the police and prosecutors who framed Abu-Jamal for Officer Faulkner’s killing. They are the ones, not the long drawn-out appellate process that has kept Abu-Jamal alive, who have denied her the closure she was due more than 25 years ago.”
For more background on “The Framing of Mumia Abu-Jamal” and J. Patrick O’Connor, Abu-Jamal-News.com is featuring an excerpt from the new book, a previous interview with the author, and O’Connor’s review of “Murdered By Mumia.” This new interview was conducted on April 11, 2008, and will be featured in the “Journalists for Mumia” newspaper, to be released days before the April 19 demonstration in Philadelphia.
Hans Bennett: Advocates of Abu-Jamal’s conviction and execution always say that a police frame-up of Abu-Jamal is a lunatic, far-fetched “conspiracy theory” that should be dismissed by any sane observer. What do you mean when you say he was “framed”? How was this done?
J. Patrick O’Connor: Mumia’s early association with the Philadelphia branch of the Black Panther Party marked him as a subversive to George Fencl, the chief inspector of the Philadelphia Police Department’s Civil Defense Bureau. His subsequent sympathetic coverage of MOVE while reporting for the local public radio station made him an avowed enemy of Mayor Frank Rizzo. Minutes after Officer Faulkner was shot at 3:55 a.m., Inspector Alfonzo Giordano–who reported directly to Fencl–took command of the crime scene and personally set in motion the framing of Abu-Jamal. It would be Giordano who claimed that Mumia told him in the paddy wagon that he dropped his gun after he shot Faulkner; it would be Giordano who arranged for prostitute Cynthia White and felon Robert Chobert to identify Abu-Jamal as the shooter. Giordano and White would be the D.A. office’s only witnesses at the preliminary hearing to hold Abu-Jamal over for trial where Giordano repeated this “confession.”
Giordano is as corrupt a police officer as one can imagine. For years he had been extorting kickbacks–personally averaging $3,000 per month–from Center City prostitutes, pimps and bar owners, which explains his early arrival at the crime scene. He knew Cynthia White and her pimp. He coerced her at the scene to identify Abu-Jamal as the shooter. She would be the only witness the D.A. had to claim to see Abu-Jamal holding a gun over Faulkner.
In her original statement to the police–given within an hour of the shooting–she had Abu-Jamal running from the parking lot and from as far away as ten yards firing off “four or five shots” at Faulkner before the officer fell. In her third interview with police detectives, given on Dec.17, she fine-tuned her statement to comport with the actual evidence in the case that Faulkner was shot at close range.
[In one of the most sinister aspects of Abu-Jamal’s case, the police department waited until the Monday after Abu-Jamal’s conviction to “relieve” Giordano of his duties on what would prove to be well-founded “suspicions of corruption.” Four years after Abu-Jamal’s trial, Giordano pled guilty to tax evasion in connection with those payouts and was sent to prison.—HB]
Incredibly, the police arriving at the crime scene would later claim not to have conducted any tests to determine if Abu-Jamal had recently fired a gun by checking for powder residue on his hands or clothing, nor did they claim to even feel or smell his gun to determine if it had been recently fired. Tests such as these are so routine at murder scenes that it is almost inconceivable the police did not run them. It is more likely that they did not like the results of the tests.
From the outset, the investigation into the shooting death of Officer Faulkner was conducted with one goal in mind: to hang the crime on Mumia Abu-Jamal. There was no search for the truth, no attempt at providing the slain officer with the justice he deserved. Giordano handed Abu-Jamal to the D.A.’s office with his own lie about Abu-Jamal confessing to him and packing off Cynthia White in a squad car to tell her concocted account of the shooting.
When the D.A.’s office was forced to back away from the corrupt Giordano, Assistant D.A. Joseph McGill elicited a new “confession” to replace Giordano’s in February when security guard Priscilla Durham and Officer Garry Bell, Faulkner’s best friend on the police force, responded to his promptings by saying they heard Abu-Jamal blurt out at the hospital, “I shot the mother-fucker and I hope the mother-fucker dies.” Not one of the dozens of other officers present at the hospital would make such a claim. In fact, the two officers who accompanied Abu-Jamal from the time he was placed in the paddy wagon until he went into surgery reported that he made no comments in signed statements given to detectives assigned to the case that morning.
The prosecution knew that its new “confession” could be skewered if Abu-Jamal’s defense attorney, Anthony Jackson, called the two officers who accompanied Abu-Jamal to the stand, so all the prosecution really had was Cynthia White. With White saying she saw it all from beginning to end, and willing to testify that she saw Abu-Jamal blow the helpless Faulkner’s brains out in ruthless cold blood, McGill had his case made, providing White’s credibility could survive Jackson’s cross-examination. McGill bet the entire case that it could, and despite the utter web of lies she told the jury, was right.
HB: Why do you think that Kenneth Freeman was the actual shooter of Police Officer Daniel Faulkner?
JPOC: Kenneth Freeman was Billy Cook’s street vendor partner and was riding with him in the VW when Faulkner pulled the VW over. Freeman got out of the VW and subsequently handed Faulkner a phony driver’s license application bearing the name of Arnold Howard, which Howard had recently loaned to him. Howard’s papers were found in Faulkner’s shirt pocket. Police rounded up both Howard and Freeman in the early morning hours of Dec. 9 and brought them in for questioning. At the Post-Conviction Relief Act hearing in 1995, Howard testified that on several occasions, Cynthia White picked Freeman out of a lineup.
At Billy Cook’s March 29 trial for assaulting Officer Faulkner, with McGill as the prosecutor, White told McGill in direct testimony that the passenger in the VW “had got out.” McGill said, “He got out of the car”? White responded, “Yes.” [At Abu-Jamal’s trial, McGill got White to testify that only Abu-Jamal, Cook and Faulkner were at the scene.]
Various witnesses said they saw a black man running from the scene right after the shooting. 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.
Cab driver Robert Harkins was driving right by the parked police car and the VW when he saw a police officer grab a man. The man “then spun around and the officer went to the ground,” falling facedown backwards, landing on his hands and knees. The assailant shot the officer in the back, causing him to roll over on his back, and then executed him with a shot to his forehead.
Harkins described the shooter as a little taller and heavier than the 6-foot, 200-pound Faulkner. Robert Chobert told police in his first statement that the shooter had an Afro and weighed about 225 pounds. [Abu-Jamal, also about 6-foot, wore his hair in dreadlocks and weighed 170 pounds at the time.]
In Billy Cook’s April 29, 2001, affidavit he declared that Freeman was with him the night of the shooting, was armed, and fled the scene after Faulkner was shot. Cook said he did not see who shot Faulkner.
Freeman would meet an ignominious death hours after Philadelphia police firebombed the MOVE house on Osage Avenue in 1985, killing 11 MOVE members, including John Africa, whose corpse had been beheaded. Freeman’s dead body was found bound, gagged and naked in a vacant lot. There would be no police investigation into this obvious murder. The coroner listed his cause of death as a heart attack. The timing and modus operandi of the abduction and killing alone suggest an extreme act of police vengeance.
HB: In your book, you were very optimistic about the Third Circuit granting Abu-Jamal a new guilt-phase trial. Were you surprised by the March 27 ruling? If so, how do you account for such a surprising ruling?
JPOC: I was incredulous. I thought the oral arguments on May 17 had gone extremely well for Abu-Jamal and that he would get a new trial. The 2-1 majority ruling demonstrated anew just how politicized this case always has been from the beginning and continues to be still. The two Republican-appointed judges on the panel formed the majority and the lone Democrat-appointed judge dissented. I hate to make it sound that simple, but the U.S. Supreme Court itself is not above making decisions based on party or ideological lines, and all too frequently does.
In its ruling, the majority stated it believed Abu-Jamal had “forfeited his Batson claim by failing to make a timely objection. But even assuming Abu-Jamal’s failure to object is not fatal to his claim, Abu-Jamal has failed to meet his burden in providing a prima facie case.” The majority stated that he failed because his attorneys at his PCRA evidentiary hearing neglected to elicit the prosecutor’s reasons for removing 10 otherwise qualified blacks by means of peremptory strikes during jury selection.
“Abu-Jamal had the opportunity to develop this evidence at the PCRA evidentiary hearing, but failed to do so. There may be instances where a prima facie case can be made without evidence of the strike rate and exclusion rate. But in this case, we cannot find the Pennsylvania Supreme Court’s ruling [denying Abu-Jamal’s Batson claim] unreasonable based on this incomplete record,” the majority wrote. In a nutshell, the majority denied Abu-Jamal’s Batson claim on a technicality of its own invention, not on its merits.
Judge Ambro’s dissent was sharp: “...I do not agree with them [the majority] that Mumia Abu-Jamal fails to meet the low bar for making a prima facie case under Batson. In holding otherwise, they raise the standard necessary to make out a prima facie case beyond what Batson calls for.”
In other words, the majority, in this case alone, has upped the ante required for making a Batson claim beyond what the United States Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court imposed no timeliness restrictions as to when a Batson claim may be raised, nor has the court done so in the intervening 22 years. Neither did it require that the racial composition of the entire jury pool be known before a Batson claim could be raised. [In fact, the Supreme Court recently added heft to its Batson ruling, ruling in Synder that the purging of only one black juror on the basis of racial discrimination was grounds for a new trial.]
In addition, the Supreme Court ruled in 1986 that to establish a prima facie case for a Batson claim, the defendant must show only “an inference” of prosecutorial discrimination in purging even one black from a jury. Even the Third Circuit has never previously allowed the timing of a Batson claim to be material, nor had it ever ruled previously that not knowing the racial composition of the entire jury pool was a fatal flaw in lodging a Batson claim.
The fact that the prosecutor in Abu-Jamal’s case used 10 of the15 peremptory challenges to exclude blacks from the jury–a strike rate of 66 percent against potential black jurors–is in itself an inference of discrimination. The result was that only three of the 12 jurors impaneled were black.
The Third Circuit should have remanded the case back to Federal District Court Judge Yohn–the judge who ruled on Abu-Jamal’s habeas corpus petition in 2001–to hold an evidentiary hearing to determine the prosecutors’ reasons for excluding the 10 potential black jurors he struck. If that hearing revealed racial discrimination on the part of the prosecutor during jury selection, Judge Yohn would be compelled to order a new trial for Abu-Jamal.
Abu-Jamal is left with only two remedies to correct the flawed Third Circuit ruling. His first option is to request the Third Circuit to review its decision en banc where the entire panel of judges sitting on the Third Circuit would conduct oral arguments anew. There is some likelihood that the Third Circuit might agree to meet en banc because the panel’s decision to deny Abu-Jamal’s Batson claim went against that court’s own well-established precedents in granting similar Batson claims in the past.
However, the barrier to en banc deliberations is a high one: a majority of the sitting judges must vote to reexamine the case. On the Third Circuit Court, there are 12 judges eligible to vote but four have already recused themselves from this particular case, meaning five of the remaining eight judges would be needed to go forward en banc. Abu-Jamal has most probably had his one day before the Third Circuit.
Barring a reversal by the Third Circuit, Abu-Jamal’s final option is to appeal the Third Circuit’s ruling to the U.S. Supreme Court, which has on three previous occasions denied to take up his case. This time, though, there is a remote possibility that the high court may take the case up because the Third Circuit’s ruling created new law by placing new restrictions on a defendant’s ability to file a Batson claim.
HB: With the media spotlight on the Pennsylvania primary elections, and the major demonstrations supporting Abu-Jamal on April 19, what would you like the world to know about this famous death-row case? How far has the city of Philadelphia come since the days of Police Commissioner and Mayor Frank Rizzo, a notorious racist and public advocate of police brutality?
JPOC: In a real sense, D.A. Lynn Abraham, just as Frank Rizzo before her, embodies the worst of Philadelphia. Known as “the Queen of Death” for her zeal in seeking the death penalty, she was depicted as the nation’s “deadliest D.A.” in a New York Times Magazine article in 1995. Her personal vendetta against Abu-Jamal equals that of Officer Faulkner’s widow. The day Federal District Court Judge Yohn overturned Abu-Jamal’s death sentence in 2001, Abraham put her antipathy for Abu-Jamal this way: “Today, Mumia Abu-Jamal is what he has always been: a convicted, remorseless, cold-blooded killer.”
The case of Mumia Abu-Jamal represents an enormous miscarriage of justice, representing an extreme example of prosecutorial abuse and judicial bias. What makes getting to the truth about this case so difficult for people, particularly people in Philadelphia, is that the prosecution built its case on perjured testimony with a calculated disregard for what the actual evidence established. The local media bought into the prosecution’s story line early on and has never been able to see this case for what it is: a framing of an innocent and peace-loving man.
Two things account for the unprecedented national and international interest in this case. First and foremost is the man himself. Despite more than 25 years of the bleakest existence possible in isolation on death row, Mumia Abu-Jamal remains what he has always been: an articulate, compassionate righter of wrongs. The second thing that makes this case so compelling to such a wide audience is that his trial represents such a monumental abuse of government power to railroad one man that it really says no citizen is truly free until this wrong has been undone.
Hans Bennett is a Philadelphia journalist and co-founder of Journalists for Mumia, whose website is Abu-Jamal-News.com.