Perspectives

Michael Schiffman on the Tigre Hill Film’s Reliance on Maureen Faulkner’s “Testimony”

Revenge as “Finding Peace” and “Closure”

Maureen Faulkner’s Crusade to Have the Alleged Killer of Her Husband Executed –

In one of the most monstrous miscarriages of justice in the United States, nine young men who were later to become internationally known as the “Scottsboro Boys” (this in itself a sign of the times as some of them were hardly boys but young adults) were accused and convicted of raping to white women near the village of Scottsboro. Most of them were sentenced to death. Since then, a vast literature has documented that they were all innocent, as the crime in question had never even happened.[1]

One of the men, Andy Wright, was paroled in 1950 after almost two decades in jail for a crime he didn’t commit. Surrounded by reporters, the man who had served 19 years for a non-existent crime said, “I have no hard feelings toward anyone.” Asked about Victoria Price, the young woman who had falsely accused him and, different from the other woman involved, always refused to later recant her lies, he commented, “If she’s still living, I feel sorry for her because I don’t guess she sleeps much at night.”[2]

Or consider the case of Amy Biehl, a young American woman who did social work in during the transition of that country from apartheid to parliamentary democracy. She was stoned and stabbed to death by a violent anti-white mob, and four of the men involved were sentenced to long prison terms. Even so, the parents of Amy Biehl found the moral greatness to forgive the killers, support their parole, and even enter into close personal relations with them.[3]

A third case one could quote here is the case of the Los Angeles member of the Black Panther Party (BPP) Elmer “Geronimo” Pratt (now Geronimo ji-Jaga) who spent 26 ½ years in prison because the FBI, with the help of a government informer and agent provocateur, knowingly framed him for a particularly heinous murder he had absolutely nothing to do with. After his release, he told a reporter that in prison “I found freedom, my understanding of freedom. […] I found it in the depths of the worst holes in San Quentin and Folsom prison.”[4]

Just as many other prisoners released from long stints in jail or even on death, unjustly convicted for crimes they were innocent of, ji-Jaga shows remarkably little desire for revenge. He certainly hasn’t forgiven the FBI and the Los Angeles Police Department for doing the dirty work that cost him his freedom for a quarter century, but today, he spends most of his time in fostering social self-help projects in his old home Louisiana and his new one, .

Similar reactions to the experience of harrowing injustice and ordeal abound, even though of course they are far from universal. Yet there is another, totally different approach, and unfortunately, it is this approach that is to be expected from the Tigre Hill film Barrel of a Gun coming out on September 21, at least judging by the previous statements of some of the most prominent participants and the two trailers available at the time of writing.

I have analyzed the first trailer for Hill’s elsewhere and shown it to be an astonishing combination of inaccuracies, absurdities, and outright lies.

The second one,[5] putting the slain Police Officer Faulkner’s wife Maureen center stage as the ancillary victim, doesn’t even purport to deal with any facts of the case, but carries a purely emotional message, and the message is that neither Danny Faulkner nor his widow Maureen will ever find peace unless the life of Faulkner’s purported murderer, Mumia Abu-Jamal, is snuffed out in the same deliberate way as Faulkner’s life allegedly was on December 9, 1981.

Lingering in the background of this trailer are two premises, which I will now examine in turn.

Superior Knowledge?

The first premise is that for some reason, Mrs. Faulkner has more knowledge of the events that led to the death of her husband than other people, even though she, too, was not present at the scene. Thus in her book coauthored with the Philadelphia talk show host Michael Smerconish, Murdered by Mumia,[6] Maureen Faulkner she claims to exactly know the facts of the case and how Abu-Jamal allegedly killed Officer Faulkner.

Even though the question of Abu-Jamal’s guilt or innocence has already been extensively treated elsewhere, it needs to be pointed out that Maureen Faulkner’s claim to superior knowledge of the facts collapses on even the most superficial inspection of her book, a telling fact given the enormous resources in terms of access to the files of the DA’s office she and her co-author Smerconish could rely on while writing it.

At the time it appeared (2007), I intended to write a review, but quickly gave up because just flipping through it at random turned up so many egregious mistakes that writing a detailed critique could easily have ended up in another book. To illustrate, even the few pages of the brief – but central – chapter 4 of the book called “The Facts”[7] contain two incredible bloopers.

One of them is that both Cynthia White and taxi driver Robert Chobert “testified that they saw Abu-Jamal run across the street and fire at Danny,”[8] which is patently untrue in the case of Chobert, who actually only claimed to have seen the final, deadly shots at Faulkner.[9] Different from the Faulkner/Smerconish account, Chobert never testified to having seen the beginning of the events, much less to have seen how Abu-Jamal triggered it all by firing at Faulkner. A not unimportant distinction: If Abu-Jamal had indeed fired first (and then, as Chobert indeed claimed in his trial testimony, fired the deadly shots at Faulkner), this would indicate first degree murder and thus eligibility for the death penalty.

The second gross mistake is that Officer Faulkner shot Abu-Jamal in the stomach,[10] not, as actually true, in the chest, a crucial distortion as the version with the stomach fits the prosecution’s theory of the events, which has Faulkner fire at Abu-Jamal as he was already falling down himself after being shot in the back by Abu-Jamal, whereas defense specialists have shown many years ago that Faulkner could not have shot Abu-Jamal in the chest from this position, particularly when one takes into account that the bullet that had entered Abu-Jamal’s chest traveled in a downward angle.

And the rest of the Faulkner/Smerconish book is of exactly the same caliber.

Practically everything put out by Maureen Faulkner since she appeared on the public scene to campaign for the execution of Mumia Abu-Jamal seems to make clear that she is less interested in the truth about the horrible event that the sudden loss of her husband certainly was, but in revenge. And if revenge takes precedence over truth, the all important thing becomes, not that the right person is taken to account for the crime in question, but that someone has to pay.

Faulkner’s indifference towards the facts of the case was again demonstrated during the NBC show in early December 2007 following the release of her and Smerconish’s book when, confronted with the newly discovered photos by press photographer Pedro P. Polakoff demonstrating mishandling, manipulation, and misinterpretation of the crime scene at 13th and Locust, she dismissed these as just another instance of BS by Abu-Jamal supporters[11] even though the authenticity of Polakoff’s photos is not in doubt.

While such a stance might seem natural and understandable, it is by no means inevitable. There are many people who rise beyond the mere desire to “have someone pay” to the wish to objectively know the truth about the events that deprived them of a relative, a friend, or a person dear to them. One of these persons is the wife of a guard by the name of Brent Miller in the notorious Angola Prison in Louisiana who was killed in the early 1970s, with two members of the Black Panther Party prison organization, Herman Wallace and Albert Woodfox, accused and then convicted of the deed.

It has long been clear that Wallace and Woodfox didn’t kill Miller or collaborated in his killing, even though they are still in jail for this after almost forty years, and under the most horrifying conditions. And Brent Miller’s widow now says: “What I want is justice, and if these two men did not do this, I think they need to be out!”[12] Given the record of falsehoods and falsifications she has put out herself (in the book she co-authored, but also on other occasions[13]) or gone along with, it seems that Maureen Faulkner will not be able to do this in the foreseeable future.

To sum it up, for such a mindset, in this case most notoriously represented by Mrs. Faulkner herself and the Fraternal Order of Police, the necessity of revenge seems to count uppermost, quite regardless of what the facts are, and of whether those who will finally be subjected to that revenge are the even the “right” targets.

The Privilege of the Ancillary Victim

The second premise of the trailer is that as one of “the survivors” and “victims that are left behind” in violent deaths as in the case of her husband, she is in a privileged position to demand punishment, “closure,” and even the death of the purported perpetrator since only such measures can get her the “peace” she is entitled to.[14]

In this vein, Maureen Faulkner has come to subscribe to something one can only describe as a cult of revenge and death. In part, this is based on assuming for herself and her family a monopoly of suffering, as if the almost 29 years Abu-Jamal has spent in jail and his more that 26 years on death row had been one continuous and uninterrupted party, and as if Abu-Jamal did not have family and friends who are being put through hell together with him, a fact that Faulkner, the FOP, and the major media outlets somehow manage to almost never mention.

As for Faulkner, even in the rare moments when she does register some sympathy, not with Abu-Jamal himself but at least with his relatives, that sympathy is quickly withdrawn, as in Murdered by Mumia where she claims to have at first empathized with Abu-Jamal’s mother Edith during the trial but then to have lost all positive feelings when Edith demanded that Maureen Faulkner be searched before entering the courtroom.[15]

Since nobody else apart from her family and friends deserves empathy or sympathy, this becomes the singular cause of “A Life Sentence of Loss, Pain, and Injustice,” the subtitle of her book, and as a result of this now decade-long stance of Maureen Faulkner (and of the artistic and moral decisions of filmmaker Tigre Hill), the entirely widow-focused second trailer for Barrel of a Gun can be reduced to one sentence: “On account of my unique suffering, I need and deserve to have Mumia Abu-Jamal executed.” The principle of blood vengeance thus becomes reintroduced into the public sphere.

The evil supposedly residing inside Abu-Jamal can only be fought by wiping the man himself off the face of the earth.

Yet once again, as in the case of the distorted view of the facts because of the overwhelming wish to see somebody pay, a life-long determination to seek revenge is by no means inevitable.

On May 21, 1971, the white New York police officer Joseph Piagentini and his black fellow officer Waverly Jones were struck down and killed in a hail of bullets, an act that was later pinned on three members of the Black Panther Party, Herman Bell, Jalil Abdul Muntaqim, and Albert Washington, who were all convicted to life in prison. Washington died in prison in 2000, but Bell and Muntaqim came up for parole in 2004, and the son of Waverly Jones, Waverly Jones Jr., supported their bid to be released. Unsurprisingly, he was furiously attacked for this from police circles, but he stood his ground, and here is part of his response:

Much of what I hear about these men who were convicted does not accurately describe the reality of who they are or have become. Herman Bell was incarcerated for 30 years and never got into an argument or fight yet he’s described as a vicious, unrepentant killer with hatred and malcontent in his heart, also his accomplishments can not go without notice. Jalil Muntaqim is another one that spent his duration in prison as a model prisoner never engaging in anything violent or disruptive. They have also maintained their innocence all the while.[16]

He doesn’t even say whether he himself believes them to be innocent, but rather points to the 1960s’ and 1970s’ extreme anti-Black racism, the police brutality that significantly contributed to the confrontations between Black militants and the police, as well as the FBI’s COINTELPRO program designed to destroy the Black liberation movement, and finally argues: “It may be difficult for people to understand why I chose to stand with these men in their petition for parole but if I had hatred and bitterness and sought revenge where would I begin?”[17]

Maybe one of his reasons was that for him the 33 years Bell and Muntaqim had already spent in jail were simply enough. One would hope to find such a rational and compassionate stance more often in cases such as these. Tigre Hill’s new film will not be the place to look for it.


[1] For a good and truthful literary treatment, see Ellen Feldman, Scottsboro, W.W. Norton, New York 2008. A thorough treatment of the facts of the case is found in Dan T. Carter, Scottsboro. A Tragedy of the American South, updated and revised edition, University of Louisiana Press , Baton Rouge 2007.

[2] The above is largely a paraphrase taken from http://www.crimemagazine.com/scottsboro-boys-jim-crow-trial.

[3] For a fuller account, see Angela Y. Davis, Are Prisons Obsolete?, Seven Stories Press, New York 2003 and the sources given there.

[4] In the series “Living Luminaries” on the Serious Business of Happiness, found on youtube in 2009 and available from the author. And further: The various religious teachers tell you that “you have to let go! To not have an ego, to not be attached to all these things which are causing you to kill you[rself]. But once you reach that, it’s just like a spirit that just exists, of loving yourself.”

[5] Viewable on http://www.facebook.com/pages/The-Barrel-of-a-Gun/21747061158?ref=mf.

[6] Maureen Faulkner and Michael Smerconish, Murdered by Mumia. A Life Sentence of Loss, Pain, and Injustice, The Lyons Press, Guilford, CT 2008.

[7] Ibid., p. 22-25.

[8] Ibid., p. 23.

[9] As a glance at the trial transcript clearly reveals.

[10] Ibid., p. 24.

[11] See http://www.youtube.com/watch?v=1FsL3rjXpl4.

[12] See http://www.msnbc.msn.com/id/3032619/#23661740 and the website http://www.angola3.org/.

[13] For one, see http://insubordination.blogspot.com/2007/05/interview-linn-washington-jr-on-mumia.html.

[14] This trend in the American legal system goes far beyond the present case and is now severely threatening the constitutional principle that justice is a public affair which must not be subjected to private interests.

[15] Murdered by Mumia, p. 43. Whether the episode happened that way is impossible to determine, but even if it did, according to what people who attended the trial told this author, Abu-Jamal’s family and friends were subjected to a fair amount of threats, harassment, and intimidation during the 1982 trial, a not unimportant piece of background. For the ethical and rhetorical aspects of the book in general, see Mark Taylor ’s review “How Not to Build One’s Case for Justice,” http://www.emajonline.com/index.php?action=4&content_id=201.

[16] http://www.nycop.com/FORUM_CURRENT/Jones-Piangentini-Victims/body_jones-piangentini-victims.html.

[17] Ibid.

Linn Washington, “The ‘Mumia Exception’ – Explaining Injustice” (February 11, 2010)

By Linn Washington Jr.

Two inmates on Pennsylvania’s death row raise the same issue on appeal – blatant misconduct by prosecutors and police – yet Pa’s Supreme Court issues different rulings in these respective cases.

The Pa Supreme Court released Jay C. Smith directly from his death row cell, ruling the misconduct by prosecutors and police so “egregious” that retrying Smith for murdering a school teacher and her two children would violate fair trial protections in Pa’s state Constitution.

However, in appeals from convicted Philadelphia cop killer Mumia Abu-Jamal, Pa’s highest court repeatedly rejects solid evidence of wrongdoing by prosecutors and police despite that misconduct being more extensive than misconduct in Smith’s case.

Why, people wonder worldwide, does Mumia Abu-Jamal remain imprisoned when mounds of evidence unearthed since his 1982 trial undermine all aspects of the controversial conviction that sent this acclaimed journalist to death row?

The answer to this justice denying/logic defying question is simple: “The Mumia Exception.”

This “Mumia Exception” is the phrase devised to describe the practice repeatedly employed by state and federal courts to strip Abu-Jamal of the same legal relief those courts extend to other inmates raising the same legal issue when challenging violations of their legal rights.

Jurists bending and/or breaking the bedrock American legal principal of equal justice under the law is the driving dynamic of “The Mumia Exception.”

This “Exception” explains how Pa’s Supreme Court in the Smith case castigated authorities for illegally withholding evidence crucial to the high school principal’s defense while that court constantly refuses to criticize any of the misconduct that crippled Abu-Jamal’s defense.

The fact that courts – including the U.S. Supreme Court – have consistently upheld the conviction of the world’s most recognized death row denizen is a key argument advanced by persons backing Abu-Jamal’s execution when countering claims of his innocence.

Execution advocates reject “The Mumia Exception” as the reason why courts uphold Abu-Jamal’s conviction despite the fact that dismissing the role of the “Exception” requires embracing scenarios that defy statistics and common sense.

For example, Philadelphia and Pennsylvania appellate courts overturned 86 Philadelphia death penalty convictions between Abu-Jamal’s December 1981 arrest and October 2009 after finding various errors by prosecutors, police, defense attorneys and even judges – including the judge at Abu-Jamal’s trial.

Yet, those same courts declare that not a single error – evidentiary or procedural – exists anywhere in the contentious Abu-Jamal case – a statistically improbable circumstance.

Pa and federal courts have even brushed aside credible evidence that on the eve of Abu-Jamal’s 1982 trial the presiding judge, Albert Sabo, declared he would help prosecutors “fry the Nigger” – an odious admission oozing racial bigotry and lack of impartiality clearly violating Abu-Jamal’s constitutionally guaranteed fair trial rights.

The twin pillars of this “Mumia Exception” are: courts refusing to apply their established legal rulings (precedent) to Abu-Jamal’s appeals; and/or courts creating new legal standards to sabotage Abu-Jamal’s appeals.

One easily understood example of the failure-to-follow-precedent prong of “The Mumia Exception” involves state and federal appellate courts in Pennsylvania dismissing 22 death sentences because of failures by defense lawyers to present any mitigating evidence for their clients during death penalty hearings.

Yet, Pa state and federal courts repeatedly found no violation in the failure of Abu-Jamal’s trial lawyer to present any kind of mitigating evidence during the penalty hearing producing Abu-Jamal’s death sentence.

It’s important to note that courts uphold procedural rights in death penalty cases – like the mitigating evidence requirement – without challenging evidence of guilt.

The most recent example of the “Exception’s” create-new-law prong is the 2008 ruling by the federal 3rd Circuit Court of Appeals upholding Abu-Jamal’s conviction where it created a new standard for challenging racist jury selection practices by prosecutors.

That newly invented 3rd Circuit standard exceeded both the jury bias proof precedent that appeals court used six previous times in faulting discriminatory practices by prosecutors. Further, that new standard was more stringent than U.S. Supreme Court precedent.

But, when the U.S. Supreme Court rejected Abu-Jamal’s appeal in April 2009, it exhibited “The Mumia Exception” by allowing the 3rd Circuit’s precedent-contradicting standard to stand thus keeping Abu-Jamal sitting in a death row cell.

Examples of the “Mumia Exception” abound…even in court rulings involving defendants convicted of killing police officers.

Three years before Abu-Jamal’s December 9, 1981 arrest for fatally shooting Philadelphia Policeman Daniel Faulkner the Pa Supreme Court granted a new trial to a Pittsburgh, Pa man sentenced to death for the ambush slaying of a police officer.

The Pa Supreme Court, in that 1978 ruling, condemned a judge for allowing prosecutors to introduce “irrelevant and prejudicial” evidence that improperly inflamed the jury.

But eleven years later the Pa Supreme Court rejected Abu-Jamal’s appeal claim that his trial judge allowed prosecutors to improperly taint jurors with their inflammatory yet unsubstantiated assertion that Abu-Jamal’s teenaged membership in the Black Panther Party spurred his killing a cop.

Abu-Jamal, an award-winning journalist who voluntarily left the BPP in 1970, had no record of violence or other criminal conduct.

In 1999, the Pa Supreme Court released two reputed gangsters convicted of a high-profile mob murder in Philadelphia, declaring that pair was denied a fair trial due to “extensive and flagrant prosecutorial misconduct.”

That ruling releasing the mobsters from prison came one year after the Pa Supreme Court rejected all allegations of fair trial violations when upholding Abu-Jamal’s conviction for the second time.

That October 1998 ruling rejected voluminous evidence presented during Abu-Jamal’s mid-1990s post-conviction appeal proceedings documenting official misconduct. That evidence included prosecutorial misconduct of improperly withholding evidence of innocence, discriminatory jury selection practices and intimidating defense witnesses.

The pro-prosecution bias of Judge Albert Sabo during Abu-Jamal’s 1995 post-conviction appeal hearing was so pronounced that it drew intense criticism from local and national news media normally hostile to Abu-Jamal.

While editorials, commentaries and news coverage assailed Sabo’s improprieties, including fining and jailing Abu-Jamal’s defense lawyers, the Pa Supreme Court proclaimed the “opinions of a handful of journalists” did not convince it that Sabo acted improperly.

One 1995 rights demolishing action completely ignored by state and federal courts was then PA Governor Tom Ridge issuing a death warrant on the eve of Abu-Jamal’s lawyers filing their post-conviction appeal.

Ridge’s office knew when lawyers planned to file that appeal because Pa prison authorities were illegally intercepting mail from Abu-Jamal’s lawyers and forwarding copies of that correspondence containing legal strategy to the Governor’s office.

That death warrant, violating Abu-Jamal’s appeal right, cast a disruptive cloud, allowing Sabo to rush the appeal hearing citing the urgency of that death warrant.

Shamelessly, the Pa Supreme Court allowed Sabo to handle that appeal hearing despite his bias during the 1982 trial being one of the appeal issues.

The enormous attention given to the ‘whodunit’ aspects underlying Abu-Jamal’s conviction easily obscures critical context regarding systemic violations like that legally indefensible interference by then Gov. Ridge who later served as Homeland Security czar for President George W. Bush.

Assertions by Abu-Jamal’s opponents that his obvious guilt negates any need for judges to apply fair trial protections and/or employ equal justice principles contradict decades of court rulings — precedent.

The Pa Supreme Court declared in a 1959 ruling that defendants are entitled “to all the safeguards of a fair trial…even if the evidence of guilt piles as high as Mt. Everest.”

That fair trial right exists irrespective of whether judges or prosecutors are convinced of a defendant’s guilt, Pa’s highest court stated in that ruling issued when Abu-Jamal was four-years-old.

That 1959 ruling arose from a Philadelphia murder case where the defendant pled guilty. Abu-Jamal has consistently proclaimed his innocence in the fatal shooting of Officer Faulkner before, during and after his trial.

The U.S. Supreme Court first employed “The Mumia Exception” during rulings in the early 1990s granting relief to a white racist prison gang member and a devil worshipper who’d raised the same appeal issue as Abu-Jamal.

Each defendant claimed prosecutors violated their First Amendment free association rights with references to respective prison gang, devil worshipping and BPP memberships.

The Supreme Court faulted prosecutorial references to the then current organizational affiliations of that gang member and devil worshipper while it twice found no fault in prosecutors exploiting Abu-Jamal’s past BPP membership.

Equal protection of laws seemingly should have provided an ex-Black Panther with the same Constitutional protections extended to the racist gang member and devil worshipper.

Incredibly “The Mumia Exception” is the least scrutinized aspect of this heavily examined case.

Jurists never admit employing “The Mumia Exception” because that improper procedure violates their sworn duty to uphold the legal principles of equal justice and adherence to precedent.

Failure to factor the endemic impact of “The Mumia Exception” elevates the credibility of fallacious claims about Abu-Jamal’s ‘open-&-shut’ guilt.

Linn Washington Jr. is a columnist for The Philadelphia Tribune who’s followed the Abu-Jamal case since December 1981. Washington, a graduate of the Yale Law Journalism Fellowship, coined “The Mumia Exception” phrase.

The Spisak Case and Mumia’s Case – from The Legal Intelligencer

Mumia Abu-Jamal’s Life May Hinge on Case of Neo-Nazi Triple Murderer
Shannon P. Duffy
The Legal Intelligencer
10-14-2009
In a bizarre twist of fate, Mumia Abu-Jamal — the convicted cop killer whose quarter century on death row in Pennsylvania has made him internationally famous — may find that his very life hinges on the outcome of a U.S. Supreme Court argument on Tuesday in the case of a neo-Nazi triple murderer who wore a Hitler mustache at trial as he testified proudly about his desire to kill blacks, Jews and gays.
For Abu-Jamal, the stakes couldn’t be higher. And the worst-case scenario is that the decision in the Ohio case, Smith v. Spisak, could directly lead to a reinstatement of Abu-Jamal’s death sentence.
But the justices may never reach the legal issues that Abu-Jamal shares with Frank Spisak, the neo-Nazi convicted in that case. That could happen if the high court instead focuses entirely on issues relating to whether Spisak’s defense lawyer at trial did such a poor job in delivering his closing argument in the death penalty phase that his death sentence cannot stand.
If Spisak secures a victory purely on those grounds, the justices might find it unnecessary to rule on a second issue — whether the jury instructions were confusing and faulty in Spisak’s (and in Abu-Jamal’s) case.
Abu-Jamal’s case has been in a kind of legal limbo since April. The justices rejected Abu-Jamal’s petition for certiorari — effectively upholding his conviction for the murder of Philadelphia Police Officer Daniel Faulkner — but took no action on a petition from the Philadelphia district attorney seeking to have his death sentence reinstated.
It soon became clear that the justices were holding the Philadelphia prosecutors’ petition in abeyance because they had agreed to hear Spisak’s case, which raised a nearly identical issue.
Typically in such cases, the justices decide the first case and then, if necessary, issue summary reversals in the other pending cases that raised the same issue, sending them back to the lower courts to reconsider in light of the high court’s most recent pronouncement.
The issue that Abu-Jamal shares with Spisak is that both men won court rulings that overturned their death sentences based on Mills v. Maryland, a 1988 U.S. Supreme Court decision that governs how juries should deliberate during the penalty phase of a capital trial.
In Mills, the justices struck down a Maryland statute that said juries in capital cases must be unanimous on any aggravating or mitigating factor.
The 5-4 decision declared that unanimity was properly required only for “aggravating” factors that support death sentences, but that mitigating factors — those that weigh against imposing a death sentence — must be handled more liberally, with each juror free to find on his or her own.
The question now before the courts is whether Mills requires that death sentences in other states be overturned if the juries in those states are misled by faulty instructions or verdict forms to believe that mitigating factors require unanimity.
Perhaps even more important to the justices is a corollary question of federalism: Is it fair for the federal courts to overturn a state court’s decision on how to interpret Mills by imposing its own interpretation that extends Mills beyond its original scope?
A BIZARRE CLOSING ARGUMENT
But in Tuesday’s argument, the justices spent most of their time discussing Spisak’s second argument — that his trial lawyer had delivered such a poor closing argument in the penalty phase that he was effectively denied effective representation. On that point, the justices were all over the map.
“Have you ever heard or read a defense summation that was more derogatory of the defendant than the summation here?” Justice Samuel A. Alito Jr. asked Ohio Attorney General Richard Cordray.
Cordray insisted that the trial lawyer had done the best he could with “the bed that was made by his client, who got on the stand for days on end and spewed his racist propaganda, made it clear that he was not only unrepentant but was triumphant.”
Alito pressed the point, saying the lawyer told the jury that Spisak demanded no sympathy, and asked: “Isn’t that exactly what he has to appeal for in order not to get a death verdict, sympathy based on mental illness, despite the horrific crimes that this person committed?” Cordray disagreed, saying he considered the lawyer’s speech to be part of a “coherent strategy” that was premised on telling the jury: “I can sense that you are not feeling sympathy for my client. Do what makes you a humane people, what makes us proud as a people, and do not give the death penalty to a person who is sick, demented, twisted, as my client has shown himself to be.”
Justice Ruth Bader Ginsburg described the closing argument as “disjointed” and said, “it goes off on tangents that have nothing to do with the sentence. … I mean, it really is quite a stream of consciousness.”
But Ginsburg also asked Spisak’s lawyer, Michael Benza of Chagrin Falls, Ohio: “Do you know of any case where ineffective assistance was found on the basis of a closing argument alone?”
Benza conceded he did not, but insisted that was only because Spisak’s case was “such an outlier.”
“I have been litigating capital cases since 1993. I have never seen a closing argument like this,” Benza said. A group of 20 law professors who teach trial advocacy filed an amicus brief supporting Spisak that urged the justices to declare that his trial lawyer’s speech “was deficient to such a level that it constituted ineffective assistance of counsel.” But several justices seemed inclined to approve of the argument as a sound strategy.
As Justice Stephen Breyer described it: “It makes sense logically to say he has the worst defendant he has ever seen. He’s murdered lots of people in cold blood. He gets up on the stand and says: ‘I’m going to kill a lot more.’ He sounds totally bonkers.” Breyer said he interpreted the trial lawyer’s strategy as recognizing that his insanity defense had failed, but nonetheless arguing to the jury, “We don’t execute people who are crazy and this guy is crazy.”
Justice Antonin Scalia went further, saying, “I thought it was a brilliant closing argument. … Have you ever conducted a capital case in which the defendant takes the stand with a Hitler mustache and says he’s glad for what he’s done and he will do it again? … This was an extraordinary trial, and it seems to me that the technique that counsel used to try to get mercy for this fellow was the best that could have been done.”
In telephone interviews Tuesday afternoon, lawyers on both sides of the Abu-Jamal case expressed guarded optimism about the outcome in the Spisak case.
FACTS DIFFERENT ENOUGH?
Attorney Robert Bryan of San Francisco, the lead lawyer for Abu-Jamal, said he believes the Mills issue as it arose in Spisak’s case is factually and procedurally different enough that the outcome will not dictate how Abu-Jamal’s case should be decided. But Deputy District Attorney Ronald Eisenberg, who attended the oral arguments, said he anticipates that the justices will reach the Mills issue and will find fault in the way the 6th U.S. Circuit Court of Appeals applied it in Spisak’s case.
While most of the federal circuits have declined to extend Mills to cases in which there was a risk of juror confusion, Eisenberg said, the 6th Circuit did so in Spisak’s case and the 3rd Circuit committed the same error in Abu-Jamal’s case.

O’Connor, “The Mumia Exception”

“The Mumia Exception”

by J. Patrick O’Connor

CrimeMagazine.com Since his conviction in 1982 for the murder of Philadelphia Police Officer Daniel Faulkner, Mumia Abu-        Jamal, through his numerous books, essays and radio commentaries, has become the face of the anti-death penalty movement in the United States and an international cause célèbre. Paris, for example, made him an honorary citizen in 2003, bestowing the honor for the first time since Pablo Picasso received it in 1971. The “Free Mumia” slogan is seen and heard around the world. Over the last 27 years he has become the most visible of the invisible 3,600 Death Row inmates in the United States.

The case of Mumia Abu-Jamal cries out for justice not because he is famous but because he is innocent. Kenneth Freeman, the street-vendor partner of Abu-Jamal’s younger brother, Billy Cook, killed Officer Faulkner moments after Faulkner shot Abu-Jamal in the chest as he approached the scene where Faulkner had pulled over the car Cook was driving. When Faulkner began beating Cook with an 18-inch long flashlight, Abu-Jamal ran from his nearby taxi to come to his brother’s aid. After Abu-Jamal was shot and collapsed to the street, Freeman emerged from Cook’s car, wrestled Faulkner to the sidewalk and then shot him to death. Freeman fled the scene on foot. Numerous witnesses told police they saw one or more black men fleeing right after the officer was shot. A driver’s license application found in Faulkner’s shirt pocket led the police directly to Freeman’s home within hours of the shooting.

But the police did not want Freeman for this killing, releasing him without him even having to call his attorney. The police, led by the corrupt Inspector Alfonzo Giordano who took charge of the crime scene within minutes of the shooting, wanted to pin Faulkner’s death on the blacked-out, police-bashing radio reporter at the scene. Freeman they would deal with later, meting out their own brand of street justice in the dead of night.

Five days after Faulkner’s death, the Center City newsstand where Freeman and Billy Cook operated a vending stand burned to the ground at about 3 a.m. Freeman told a Philadelphia Inquirer reporter hours after the arson that “there was no question in my mind that the police are behind this.” The Inquirer also quoted a Center City police officer who was on patrol in the area that morning as saying, “It’s entirely possible” that “certain sick members” of his department were responsible. “All I know is when I got to the station to start my shift at 7:30 this morning, the station house was filled with Cheshire grins.” Although the “unsolved” arson bankrupted Freeman and Cook, a worse fate awaited Freeman.

On the night in 1985 when the police infamously firebombed the MOVE home and burned down 60 other row houses in the process, incinerating 11 MOVE members including five children, Freeman’s dead body would be found nude and gagged in an empty lot, his hands handcuffed behind his back. There would be no police investigation into this obvious murder: the coroner listed his cause of death as a heart attack. Freeman was 31.

Abu-Jamal had been well known to local police since he joined the Philly chapter of the Black Panther Party at age 15. The next year he was named “lieutenant of information,” an appointment the Inquirer ran on its front page, picturing the young radical at Panther headquarters. Even though the chapter would soon dissolve, both the police and the FBI continued to monitor Abu-Jamal when he left Philadelphia to attend Goddard College in Vermont and on his return to Philadelphia to take up his radio career. As his career took wing, landing him a high-profile job at Philadelphia’s public radio station, that scrutiny intensified due to his overtly sympathetic coverage of the radical counter-culture group MOVE. Throughout the 1970s and well into the 1980s, police confrontations with MOVE were brutal displays of civic discord and police abuse that culminated in the 1985 firebombing.

Abu-Jamal’s case has been politically charged from the beginning. By the time he was arrested for the murder of Officer Faulkner, he was a marked man to the police for his Black Panther Party association and his favorable reporting of MOVE. Inspector Giordano, who detested both Abu-Jamal and MOVE, would set the framing of Abu-Jamal in motion by falsely claiming that Abu-Jamal had told him in the paddy wagon that he had killed Faulkner. (Giordano would not be called by the prosecution to reiterate his fabrication at Abu-Jamal’s trial. Instead, on the first business day following Abu-Jamal’s sentencing, Giordano would be “relieved” of his duties by the police department on what would prove to be well-founded “suspicions of corruption.” An FBI probe of rank corruption within the Philadelphia Police Department – the largest ever conducted by the U.S. Justice Department of a police force – would lead to Giordano’s conviction four years later. The FBI investigation would ensnare numerous other high-ranking Philadelphia police officials and officers, many of them involved in Abu-Jamal’s arrest and trial. Deputy Police Commissioner James Martin, who was in charge of all major investigations, including Faulkner’s death, was the ringleader of a vast extortion enterprise operating in City Center.)

The trial of Abu-Jamal was a monumental miscarriage of justice from beginning to end, representing an extreme case of prosecutorial abuse and judicial bias. A pamphlet published by Amnesty International in 2000 stated it had “determined that numerous aspects of Mumia Abu-Jamal’s case clearly failed to meet minimum standards safeguarding the fairness of legal proceedings.”

The trial judge, Common Pleas Court Judge Albert F. Sabo, presided at more trials that resulted in the defendants receiving the death penalty than any judge in the nation. Of the 31 so sentenced, five won reversals on appeal, an indication of extreme judicial bias. The Inquirer called him “a defendant’s worst nightmare,” a prominent defense attorney referred to him as “a prosecutor in robes.” A former court stenographer said in an affidavit in 2001 that during Abu-Jamal’s trial she overheard Sabo tell someone at t the courthouse, “Yeah, and I am going to help them fry the nigger.”

During the third day of jury selection, Sabo stripped Abu-Jamal of his right to represent himself and interview potential jurors despite the fact that the Inquirer reported Abu-Jamal was “intent and business like” in his questioning. On the second day of the trial, Sabo removed Abu-Jamal from the courtroom for insisting that MOVE founder John Africa replace his court appointed backup counsel, Anthony Jackson. In turn, Sabo appointed Jackson to represent Abu-Jamal. This would put to rout the possibility of a fair trial.

Abu-Jamal’s first major appeal issue developed during jury selection when the prosecutor, Assistant D.A. Joseph McGill, used 10 or 11 of the 15 peremptory challenges he exercised to keep otherwise qualified blacks from sitting on this death-penalty-vetted jury. In a city with more than a 40 percent black population at the time, Abu-Jamal’s jury ended up with only two blacks. In 1986 – four years after Abu-Jamal’s trial – the U.S. Supreme Court ruled in Batson v. Kentucky that it was unconstitutional for a prosecutor to exclude potential jurors on the basis of race. The ruling was retroactive.

The second major constitutional claim that would arise occurred at the end of the guilt phase of the trial when the prosecutor referenced the appeal process in his summation to the jury. He told the jury that if they found Abu-Jamal guilty of murder in the first degree that “there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.”

Although Officer Faulkner had been killed by Kenneth Freeman, the prosecution mounted its evidentiary case against Abu-Jamal on the perjured testimony of a prostitute informant and a cab driver with a suspended license for two DUIs who was on probation for throwing a Molotov cocktail into a school yard during a school day. Both of these witnesses had been handpicked by Giordano at the crime scene.

“The Mumia Exception”

As Amnesty International established in its 2000 pamphlet entitled “The Case of Mumia Abu-Jamal: A Life in the Balance,” his tortuous appeal process has been fraught with “judicial machinations.” Claims that won the day in other cases were repeatedly denied him.

In 1989, the Pennsylvania Supreme Court turned down his first appeal even though one of his claims was almost identical to one that had persuaded the same court to grant Lawrence Baker a new trial in 1986. In that case, Commonwealth v. Baker, the court overturned Baker’s death sentence for first-degree murder on the grounds that the prosecutor improperly referenced the lengthy appeal process afforded those sentenced to death. That prosecutor – Joseph McGill – was the same prosecutor who used similar – almost verbatim – language in his summation during both the guilt and sentencing phases of Mumia’s trial. The judge who failed to strike the language in the Baker case was the same judge who presided at Mumia’s trial, Common Pleas Court Judge Albert F. Sabo.

The State Supreme Court ruled in Baker that the use of such language “minimize[ed] the jury’s sense of responsibility for a verdict of death.” When Abu-Jamal’s appeal included the very same issue, the court reversed its own precedent in the matter, denying the claim in a shocking unanimous decision.

A year later, in Commonwealth v. Beasley, the Pennsylvania Supreme Court reinstated the death sentence of Leslie Beasley, but exerted its supervisory power to adopt a “per se rule precluding all remarks about the appellate process in all future trials.” This rule not only reinstated the Baker precedent but it ordered all prosecutors in the state to refrain once and for all from referencing the appellate process in summations to the jury. The court could have made this new rule retroactive to Mumia’s case, but did not.

As Amnesty International declared in its pamphlet about the case, the Pennsylvania Supreme Court’s judicial scheming leave “the disturbing impression that the court invented a new standard of procedure to apply to one case only: that of Mumia Abu-Jamal,” Temple University journalism professor Linn Washington aptly dubs this and subsequent court decisions denying Mumia a new trial “the Mumia exception.”

Abu-Jamal’s Post-Conviction Relief Act hearing in 1995 was doomed from the beginning when Judge Sabo – the original trial judge – would not recuse himself from the case and the Pennsylvania Supreme Court would not remove him for bias.

Abu-Jamal’s federal habeas corpus appeal – decided by Federal District Judge William Yohn in 2001 – should have resulted in at least an evidentiary hearing on Abu-Jamal’s Batson claim that the prosecutor unconstitutionally purged blacks from the jury by using peremptory strikes to exclude 10 or 11 otherwise qualified black jurors from being empanelled. Abu-Jamal’s attorneys had included a study conducted by Professor David Baldus that documented the systematic use of peremptory challenges to exclude blacks by Prosecutor McGill in the six death-penalty cases he prosecuted in Common Pleas Court in Philadelphia. Abu-Jamal’s trial was one of the six trials studied by Baldus. Judge Yohn barred the study on the erroneous grounds that the study was not from a relevant time period when, in fact, it was completely relevant. Judge Yohn’s error was egregious and could have been easily avoided if he had held one evidentiary hearing on that defense claim. But during the two years that Judge Yohn considered Abu-Jamal’s habeas appeal, he held no hearings.

The U.S. Court of Appeals for the Third Circuit should have corrected that district court mistake by remanding Abu-Jamal’s case back to Judge Yohn to hold the evidentiary hearing on the Batson claim, but in another example of the “Mumia exception,” the court instead continued the long and tortured denial of Mumia’s right to a fair trial. In a 2 to 1 decision released on March 27, 2008 that reeked of politics and racism, the court ruled that Abu-Jamal had failed to meet his burden in providing a prima facie case. He failed, the majority wrote, because his attorneys were unable to establish the racial composition of the entire jury pool.

In the decision written by Chief Judge Anthony Scirica, the court stated that “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 [i.e., “the Mumia exception” is in play], we cannot find the Pennsylvania Supreme Court’s ruling [denying the Batson claim] unreasonable based on this incomplete record.”

In a nutshell, the majority denied Mumia’s Batson claim on a technicality of its own invention, not on its merits. It also broke with the sacrosanct stare decisis doctrine – the principle that the precedent decisions are to be followed by the courts – by ignoring its own previous opposite ruling in the Holloway v. Horn case of 2004 and the Brinson v. Vaughn case of 2005. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. In a Ninth Circuit Court of Appeals ruling in 1989 in a case entitled United States v. Washington, the decision stated that an appeal court’s panel is “bound by decisions of prior panels unless an en banc decision, Supreme Court decision, or subsequent legislation undermines those decisions.” None of those variables were in play when the Third Circuit Court majority ruled against Mumia’s Batson claim.

Judge Thomas 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 U.S. Supreme Court stipulated. When ruling in Batson in 1986, the U.S. Supreme Court did not require that the racial composition of the entire jury pool be known before a Batson claim may be raised. The high court ruled that a defendant must show only “an inference” of prosecutorial discrimination in purging potential jurors. Prosecutor McGill’s using 10 or 11 of the 15 peremptory strikes he deployed is just such an inference – and an extremely strong one. McGill’s strike rate of over 66 percent against potential black jurors is in itself prima facie evidence of race discrimination. Prima facie is a Latin term meaning “at first view,” meaning the evidence being presented is presumed to be true unless disproved.

In commenting on Holloway v. Horn, a Batson-type case with striking similarities to Abu-Jamal’s claim, Judge Ambro – the lone Democrat-appointed judge on the three judge panel – demonstrated just how disingenuous the panel’s ruling against Abu-Jamal’s Batson claim was. “In Holloway, Judge Ambro wrote in his 41-page dissent, “we emphasized that ‘requiring the presentation of [a record detailing the race of the venire] simply to move past the first state – the prima facie stage – in the Batson analysis places an undue burden upon the defendant.’ There we found the strike rate – 11 of 12 peremptory strikes against black persons – satisfied the prima facie burden.” In Holloway, the Third Circuit ruled that the Pennsylvania Supreme Court’s decision denying Holloway’s Batson claim was “contrary to” and an “unreasonable application” of the Batson standard.

In fact, in rendering both its Holloway and Brinson decision, the Third Circuit specifically rejected the requirement that a petitioner develop a complete record of the jury pool. In making its ruling in Abu-Jamal’s appeal, it reversed itself to make the pretext of an incomplete jury record his fatal misstep. Basing its ruling against Abu-Jamal’s Batson claim on this invented pretext demonstrated how desperate the majority was to block Abu-Jamal’s Batson claim. What the majority was implying was that Abu-Jamal’s jury pool may well have consisted of 60 or 70 percent black people and that therefore the prosecutor’s using 66 percent of his strikes to oust potential black jurors was statistically normal and did not create a prima facie case of discrimination. This hypothesis is, of course, absurd on its face. Blacks have been underrepresented on Philadelphia juries for years – and remain so today. What was likely was that the jury pool at Abu-Jamal’s trial was at least 70 percent white.

The Third Circuit – if it had followed its own precedent – would have found the Pennsylvania Supreme Court’s ruling denying Abu-Jamal’s Batson claim “contrary to” and an “unreasonable application” of the Batson standard and remanded the case back to Federal District Court Judge Yohn to hold an evidentiary hearing to determine the prosecutor’s reasons for excluding the 10 potential black jurors he struck. If that hearing satisfied Judge Yohn that all of the prosecutor’s reasons for striking potential black jurors were race neutral, the Batson claim would fail. If, conversely, that hearing revealed racial discrimination on the part of the prosecutor during jury selection – even if only concerning one potential juror – Judge Yohn would have been compelled to order a new trial for Abu-Jamal.

Abu-Jamal’s final opportunity for judicial relief was filed with the U.S. Supreme Court in November of 2008 in the form of a Petition for a Writ of Certiorari. On February 4, the high court docketed and accepted that filing. According to Abu-Jamal’s lead attorney, Robert Bryan of San Francisco, “The central issue in this case is racism in jury selection. The prosecution systematically removed people from sitting on the trial jury purely because of the color of their skin, that is, being black.”

For at least two compelling reasons, it appeared that the U.S. Supreme Court would grant Abu-Jamal’s petition. In its last term, the high court expanded its 1986 Batson ruling in its Synder v. Maryland decision to warrant a new trial if a minority defendant could show the inference of racial bias in the prosecutor’s peremptory exclusion of one juror. Under Batson, the defense needed to show an inference – i.e., a pattern – of racial bias in the overall jury selection process. Ironically, the Supreme Court’s 7-2 decision strengthening and expanding Batson’s reach was written by Justice Samuel Alito, most recently of the Third Circuit Court of Appeals.

The second reason was that the Third Circuit’s ruling denying Abu-Jamal’s Batson claim undermined both the Batson and Snyder decisions by placing new restrictions on a defendant’s ability to file a Batson claim. The Third Circuit ruling against Abu-Jamal had the effect of creating new law by tampering with a long-established Supreme Court precedent.

As a result, there seemed to be something more than a remote possibility that the Supreme Court would agree to grant Abu-Jamal’s writ.

A Writ of Certiorari is a decision by the Supreme Court to hear an appeal from a lower court. Supreme Court justices rarely give a reason why they accept or deny Cert. Although all nine justices are involved in considering Cert Petitions, it takes only four justices to grant a Writ of Certiorari, even if five justices are against it. This is known as “the rule of four.”

Despite needing only four votes to have his Batson claim argued, the Supreme Court on April 6, 2009 tersely denied Abu-Jamal’s request for a writ. The so-called “liberal block” of Justices Stevens, Ginsberg, Souter, and Breyer disintegrated, yielding to the awesome political power of the “Mumia exception.”

Abu-Jamal – who turned 55 on April 24, 2009 – will, barring the most unlikely intervention by a future governor of Pennsylvania, spend the rest of his life in prison for a crime he did not commit.

–J. Patrick O’Connor is the editor of Crime Magazine (http://www.crimemagazine.com) and the author of The Framing of Mumia Abu-Jamal, published by Lawrence Hill Books in 2008.

Troy Davis’ Letter – 2 Hours Before a Scheduled Execution (Later Stayed)

To all, I want to thank all of you for your efforts and dedication to Human Rights and Human Kindness, in the past year I have experienced such emotion, joy, sadness and never ending faith.

It is because of all of you that I am alive today, as I look at my sister Martina I am marveled by the love she has for me and of course I worry about her and her health, but as she tells me she is the eldest and she will not back down from this fight to save my life and prove to the world that I am innocent of this terrible crime.

As I look at my mail from across the globe, from places I have never ever dreamed I would know about and people speaking languages and expressing cultures and religions I could only hope to one day see first hand. I am humbled by the emotion that fills my heart with overwhelming, overflowing Joy.

I can’t even explain the insurgence of emotion I feel when I try to express the strength I draw from you all, it compounds my faith and it shows me yet again that this is not a case about the death penalty, this is not a case about Troy Davis, this is a case about Justice and the Human Spirit to see Justice prevail.

I cannot answer all of your letters but I do read them all, I cannot see you all but I can imagine your faces, I cannot hear you speak but your letters take me to the far reaches of the world, I cannot touch you physically but I feel your warmth everyday I exist.

So Thank you and remember I am in a place where execution can only destroy your physical form but because of my faith in God, my family and all of you I have been spiritually free for some time and no matter what happens in the days, weeks to come, this Movement to end the death penalty, to seek true justice, to expose a system that fails to protect the innocent must be accelerated.

There are so many more Troy Davis’. This fight to end the death penalty is not won or lost through me but through our strength to move forward and save every innocent person in captivity around the globe. We need to dismantle this Unjust system city by city, state by state and country by country.

I can’t wait to Stand with you, no matter if that is in physical or spiritual form, I will one day be announcing, “I AM TROY DAVIS, and I AM FREE!”

Never Stop Fighting for Justice and We will Win!– Troy Davis

EMAJ Response to Professor Levitt in NYTimes (4.22.2008)

EMAJ RESPONSE TO NEW YORK TIMES COLUMN ON MUMIA

Longer Version (901 words)

As university professors who seek to apply scientific analysis to social phenomena for the purpose of understanding and explaining the workings of society, its institutions, and its problems, we were alarmed by the imprecision with which Professor Steven Levitts approached a discussion of the case of Mumia Abu-Jamal, one of the most contested death penalty cases in 20th Century U.S. history, in his article, “Think Twice Before You Wear Your ‘Free Mumia’ T-shirt” (April 22, 2008). The case of Mumia Abu-Jamal merits deeper scrutiny than that afforded it by Professor Levitts because the life of a man is at stake; because the transcript of the original trial points unequivocally to countless constitutional rights violations; and most importantly because the constitutional violations in this case are not aberrant, but rather are an endemic feature of our criminal justice system. The violations that Abu-Jamal’s case exemplify, such as judicial misconduct, discrimination in jury selection, and police corruption and tampering with evidence to obtain a conviction, account for the exponential and disproportionate incarceration of African Americans in the United States over the last 30 years, making the issue of black incarceration one of the gravest civil rights problems of our time.

Yet, with little to no knowledge of the case – by his own admission – Professor Levitts calls into question the edifice of Abu-Jamal’s defense on grounds that the Hollywood celebrities and students whom he believes to be the base of Abu-Jamal’s supporters (and whom he seemingly disdains) are not fit legal experts. Ironically, Professor Levitts urges his readers to find a compelling and ‘factual’ account of the case in a highly questionable book, Murdered by Mumia, co-written by Michael Smerconish, a conservative Philadelphia radio talk-show host, and Maureen Faulkner. Ms. Faulkner is the widow of the slain police officer, Daniel Faulkner, whom Mumia Abu-Jamal was accused of killing in 1982. In a recent Today Show interview with the authors, even the mainstream talk show host Matt Lauer challenged the authors saying that the emotional search for resolution in this book by Ms. Faulkner while understandable is incompatible with an objective analysis of the circumstances that led to the killing of Officer Faulkner. Not surprisingly, the book inaccurately renders the facts of the case and omits others.

That same Today Show news segment on the case also aired a series of photographs taken at the scene of the crime where Officer Faulkner was killed that clearly show police mishandling key evidence and contradict the evidence assembled by the prosecution against Abu-Jamal. The photos were discovered by researcher Dr. Michael Schiffmann of the University of Heidelberg , and taken by free lance photographer Pedro Polokoff who offered them to police and prosecutors at Abu-Jamal’s 1982 trial. However, these were never considered at the trial and were unknown to Abu-Jamal’s defense team, until very recently.

While the civil and constitutional rights violations in Abu Jumal’s case are many, two are especially consequential in the legal world. The first violation concerns the deliberate exclusion of African Americans by the prosecution during the jury selection process. In a city where 40% of the population was black at the time of the trial, only one black juror survived the jury selection process, leading Amnesty International to report that jurors were accorded different treatment from the court on account of race. The practice of discrimination in jury selection was publicly exposed in Philadelphia in 1987 when a training videotape on how to select a jury likely to convict was leaked to the press. The tape was made by the Assistant Attorney General of Philadelphia and was used to instruct prosecutors on how to remove African Americans from the jury pool.

The second major violation concerns judicial bias and misconduct during the original trial. In addition to a report by a court stenographer accusing the presiding judge of making a racist remark in court against Abu-Jamal, the judge’s previous 16-year affiliation with law enforcement as under-sheriff of Philadelphia County meant that he had a conflict of interest and therefore could not render an impartial ruling in a case involving the shooting of a police officer. Yet, Judge Sabo refused to recuse himself from the case.

All this is just to scratch the surface of the constitutional violations suffered by Abu-Jamal. In a recent ruling on the case by the Third Circuit Court, the dissenting Judge Thomas Ambro acknowledges the unequal application of the law in the case of Mumia Abu-Jamal. He writes that the decision to deny Abu-Jamal the famous “Batson” claim of discrimination in jury selection “goes against the grain of our prior actions…I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.”

Unfortunately, Professor Levitts seems to think he need not do any research into these matters, and has also never learned of the hundreds of researching scholars who support Abu-Jamal. Instead, Levitts breezily references one of the most emotionally charged and personally invested publications in the marketplace today.

To be sure, the death of Ms. Faulkner’s husband was a travesty, and she has every right to her free expression of opinion. It must be stressed, however, that neither the truth about her husband’s death nor the fight for due process for Mumia Abu-Jamal is well-served by the quick opinions that Levitts lobs into the blogosphere. As an academic, Levitts should have done better, and the New York Times should publish better in analyzing Abu-Jamal’s important case.

Tameka Cage, University of Pittsburgh *Johanna Fernandez, Baruch College * Mark Lewis Taylor, Princeton Theological Seminary* Co-Coordinators of Educators for Mumia Abu-Jamal (EMAJ). http://emajonline.com/ *Institutions listed for identification purposes only.

Shorter version (785words)

A

s university professors, we were alarmed by the imprecision with which Professor Steven Levitts approached a discussion of the case of Mumia Abu-Jamal, one of the most contested death penalty cases in 20th Century U.S. history, in his article, “Think Twice Before You Wear Your ‘Free Mumia’ T-shirt” (22 April, 2008). Abu-Jamal’s case merits deeper scrutiny than that afforded it by Professor Levitts because a man’s life is at stake; because the transcript of the original trial points unequivocally to countless constitutional rights violations; and most importantly because the constitutional violations in this case are not aberrant, but rather are an endemic feature of our criminal justice system.

The violations in Abu-Jamal’s case, such as judicial misconduct, discrimination in jury selection, police corruption and tampering with evidence, are responsible for the disproportionate incarceration of African Americans in the over the last 30 years, and make issues of black incarceration the gravest of civil rights problems in our time.

Yet, with little to no knowledge of the case – by his own admission – Professor Levitts calls into question the edifice of Abu-Jamal’s defense on grounds that the Hollywood celebrities and students, whom he believes to be the base of Abu-Jamal’s supporters (and whom he seemingly disdains), are not fit legal experts.

Ironically, Professor Levitts urges his readers to find a compelling and ‘factual’ account of the case in a highly questionable book, Murdered by Mumia, co-written by Michael Smerconish, a conservative Philadelphia radio talk-show host, and Maureen Faulkner. Ms. Faulkner is the widow of the slain police officer, Daniel Faulkner, whom Abu-Jamal was accused of killing in 1982. In a recent Today Show interview with the authors, even the mainstream talk show host Matt Lauer challenged the authors saying that the emotional search for resolution in Ms. Faulkner’s book, while understandable, is incompatible with an objective analysis of the circumstances that led to Officer Faulkner’s murder. Not surprisingly, the book inaccurately renders the facts of the case and omits others.

That same Today Show news segment on the case also aired a series of photographs taken at the scene of the crime where Officer Faulkner was killed that clearly show police mishandling key evidence and contradict the evidence assembled by the prosecution against Abu-Jamal. These photos were never considered at the trial and were unknown to Abu-Jamal’s defense team, until very recently.

While the civil and constitutional rights violations in Abu Jumal’s case are many, two are especially consequential in the legal world. The first violation concerns the deliberate exclusion of African Americans by the prosecution during the jury selection process. The practice of discrimination in jury selection was publicly exposed in Philadelphia in 1987 when a training videotape on how to select a jury likely to convict was leaked to the press. The tape was made by the Assistant Attorney General of Philadelphia and was used to instruct prosecutors on how to remove African Americans from the jury pool.

The second major violation concerns judicial bias and misconduct during the original trial. In addition to a report by a court stenographer accusing the presiding judge of making a racist remark against Abu-Jamal, the judge’s previous 16-year affiliation with law enforcement as under-sheriff of Philadelphia County meant that he had a conflict of interest in a case involving the shooting of a police officer. Yet, Judge Sabo refused to recuse himself from the case.

All this is just to scratch the surface of the constitutional violations suffered by Abu-Jamal. In a recent ruling on the case by the Third Circuit Court, the dissenting Judge Thomas Ambro acknowledges the unequal application of the law in the case of Abu-Jamal. He writes that the decision to deny Abu-Jamal the famous “Batson” claim of discrimination in jury selection “goes against the grain of our prior actions…I see no reason why we should not afford Abu-Jamal the courtesy of our precedents.”

Unfortunately, Professor Levitts seems to think he need not do any research into these matters, and has also never learned of the hundreds of researching scholars who support Abu-Jamal. Instead, Levitts breezily references one of the most emotionally charged and personally invested publications in the marketplace today.

To be sure, the death of Ms. Faulkner’s husband was a travesty, and she has her right to free expression. It must be stressed, however, that neither the truth about her husband’s death nor the fight for due process for Abu-Jamal is well-served by the quick opinions that Levitts lobs into the blogosphere. As an academic, Levitts should have done better, and the New York Times should publish better in analyzing Abu-Jamal’s important case.

Tameka Cage, University of Pittsburgh * Johanna Fernandez, Baruch College * Mark Lewis Taylor, Princeton Theological Seminary* Co-Coordinators of Educators for Mumia Abu-Jamal (EMAJ). http://emajonline.com/ -*Institutions listed for identification purposes only.

INFORMATION ON MOVE 9 PAROLE HEARINGS IN 2008

http://move9parole.blogspot.com/2008/03/video-mike-africa-jr-interview-about.html VIDEO: Mike Africa Jr. interview about the MOVE 9 Parole Hearings By Hans Bennett Abu-Jamal-News.com Watch video here.  Along with excerpts of archival footage from the Cohort Media documentary titled “MOVE”, this video features a new interview with MOVE member Mike Africa Jr. Born in prison, he is the son of MOVE prisoners Mike Sr. and Debbie Africa, who are both eligible for parole in 2008, after 30 years in prison, along with the six other remaining MOVE prisoners. This video is the first in a series of videos to be released in the weeks leading up to the Parole Hearings in April.  recently I have written an article on The MOVE 9 and interviewed journalist Linn Washington Jr. about covering MOVE since the 1970s. Also, Ramona Africa recently was interviewed by Uprising Radio. And of course, there is the documentary about MOVE, narrated by Howard Zinn, viewable online at Brightcove or You Tube. MOVE’s website is onamove.com . This April parole hearing is SO important. Letters and calls to the Parole Board now can really help. The eight remaining prisoners are Janine, Debbie, Janet, Delbert, Mike, Phil, Eddie, and Chuck Africa.  It is probably a good idea for folks to send letters to each of the nine Board members. The chairperson was appointed by Ed “1985 Bomber” Rendell so don’t count on her getting your message to the whole Board. Their individual names are on this web page: http://www.pbpp.state.pa.us/pbppinfo/cwp/view.asp?a=3&q=154178&pbppNav=|  Letters can all be sent to this address: [name of Board member], Pennsylvania Board of Probation and Parole, 1101 South Front Street, Suite #5100, Harrisburg, PA 17104-2517, tel: (717) 787-5699 . Please send copies of the letters to Phil Africa at: William Phillips Africa #AM-4984, SCI-Dallas, 1000 Follies Rd., Dallas, PA 18612. Stay tuned for more information and coverage in the coming months!

21 FAQS ON THE POLAKOFF PHOTOS (Updated Jan. 30)

THE POLAKOFF PHOTOS

New Photos of the Crime Scene of the Shooting Death of

Police Officer Daniel Faulkner

21 FAQs –  FREQUENTLY ASKED QUESTIONS

(Updated January 29. 2008)

by Educators for Mumia Abu-Jamal  and Journalists for Mumia Abu-Jamal,

in consultation with Dr. Michael Schiffmann

Mumia Abu-Jamal has been on Pennsylvania ‘s death row for over a quarter of a century. His 1982 conviction for the shooting death of Philadelphia Police Officer Daniel Faulkner, has been contested by jurists, human rights organizations, and peoples of conscience the world over. Even though he is arguably the most famous political prisoner in the United States, his case and struggle for justice distills many of the issues that racially stigmatized groups and others have faced in the United States for decades: police brutality and violence, racist applications of the death penalty, prosecutorial misconduct, suborning of witnesses, and the use of wealth and political privilege in criminal justice systems to service the ideological interests of groups and classes in power.
Within the last year, some 26 photos have been discovered by researcher Dr. Michael Schiffmann of the University of Heidelberg , showing the crime scene where Officer Faulkner was killed. These photos were offered to police and prosecutors from the beginning, but were never considered at Abu-Jamal’s 1982 trial, or in any judicial phase of his struggle for justice thereafter. Indeed, they were unknown even to Abu-Jamal’s defense team, until very recently. To widen public knowledge about these photos and to answer many of the basic questions about them, Educators for Mumia Abu-Jamal and Journalists for Mumia Abu-Jamal have collaborated to produce this document of “21 FAQs about the Polakoff Photos.” We stress that while it is important for the public to have knowledge about these photos, and to debate them in the media and public forum, the most important and necessary move is for the court system to give Abu-Jamal a new trial and deliberate officially on this evidence and all evidence that is potentially exculpatory for Abu-Jamal.

For more information, please see previous press-releases from May, October, and December (4 photos can be viewed at Abu-Jamal-News.com). Video footage is now available of the Dec.4 Journalists for Mumia press conference addressing the photos (Parts One and Two), as well as the Dec. 8 slide show presentation of the photos, which were recently spotlighted by Reuters, NBC’s Today Show, National Public Radio, Counterpunch, The SF Bay View Newspaper, The Black Commentator, The Philadelphia Weekly, and others.

More extensive information on the case can be found at the following websites:  FreeMumia.com (New York City), FreeMumia.org (San Francisco), EmajOnline.com (Educators for Mumia), Abu-Jamal-News.com (Journalists for Mumia), or by contacting: The International Concerned Family & Friends of Mumia Abu-Jamal, P.O. Box 19709, Philadelphia, PA 19143, (215) 476-8812, icffmaj@aol.com .

I. Facts

1. Why are these photos coming out just now, and how were they discovered?

  • The photos were discovered by University of Heidelberg linguist and translator, Michael Schiffmann, during an unrelated internet search in late May 2006. Schiffmann first found two photos taken by a freelance photographer, Pedro Polakoff. Later he would have access to over 26 of Polakoff’s photos of the crime scene. Previous researchers and those debating the Mumia case, in court or outside of court, seem to have had no knowledge of these photos until this discovery, and until Schiffmann’s later discussion of the photos in his 2006 book, Race Against Death: The Struggle for the Life and Freedom of Mumia Abu-Jamal (published only in Germany, with an English manuscript presently available). Educators for Mumia Abu-Jamal (EMAJ) and Journalists for Mumia Abu-Jamal (J4M) have been instrumental in circulating knowledge of Schiffmann’s discovery.

2. Is there any chance these Polakoff photos could be fake or doctored?

  • Schiffmann has responded to this query directly: “Polakoff has preserved the original negatives, from which the images viewed on the internet were directly scanned, with a negative scanner. As the negatives show, Daniel Faulkner’s hat started on the top of the VW, and only later showed up on the sidewalk, where it would then remain for the official police photo. There isn’t a scintilla of a doubt about its authenticity, […] and there isn’t the slightest doubt about the time sequence of the photographs, a question that I’ve gone through with photographer Pedro Polakoff again and again and again.”[1]

3. Who is this photographer?

  • Pedro P. Polakoff was a freelance photographer in Philadelphia who got to the crime scene just 12 minutes after the shooting was first reported on police radio, and apparently at least 10 minutes before the Philadelphia Police Mobile Crime Detection (MCD) Unit that handles crime scene forensics and photographs.

4. How could Polakoff get access to the crime scene for these photos?

  • Polakoff was himself surprised about how he could move and photograph freely everywhere at the crime scene, even after the PPD Mobile Crime Unit arrived. Polakoff told Schiffmann that it was the “most messed up crime scene I have ever seen.” It was completely unsecured, a fact testified to also by Philadelphia journalist, Linn Washington, Jr.[2]

5. How did Schiffmann get his information from Polakoff?

  • After the first contact, first by telephone, and then by email with Polakoff, Schiffmann amassed over 60 pages of email notes from questioning Polakoff.  He also had over six weeks of other contacts with Polakoff, “without ever revealing more to him,” writes Schiffmann, “than the fact that I was working on a book on the case.” Only relatively later in the conversations with Polakoff did Schiffmann reveal his own views and suspicions about the prosecutors’ version of the case. Schiffmann also has studied Polakoff’s many responses at different points during his contacts, and Schiffmann finds that Polakoff is both detailed and consistent each time.

6. What is most important about the 26 Polakoff photos?

  • This question must be approached both as a procedural question and as a substantive question. Procedurally, there is the fact that Polakoff offered the 26 photos to the police and DA’s Office, and they showed no interest in them. The photos surely never entered the court record of Abu-Jamal’s case to be set before a jury’s deliberation. Let us grant that photos can enter as evidence in many ways, and a photo which very clearly shows one thing to one person can show something very different to another person, often depending on context (of other evidence, knowledge, personal experience and ideological interests, and so on). Nevertheless, the key procedural point is that the Polakoff photos, which were available and offered to police and prosecutors in both 1981/1982, and in the 1990s, never even made it into the evidentiary record of this case. They were omitted, left out, of all procedures for investigating Officer Faulkner’s death.
  • Substantively, the Polakoff photos enable defense attorneys, and by extension the court, to raise significant reasonable doubt about the basic scenario of Officer Faulkner’s death – a scenario that prosecutors constructed to argue for Abu-Ja­mal’s guilt. In light of the Polakoff photos, that scenario could be completely destroyed by attorneys. In particular, testimony for the prosecution about that scenario, provided by Cynthia White, Robert Chobert and Michael Scanlon, becomes incredible.[3]
  • —– At the 1982 trial of Abu-Jamal, they all testified that the killer stood over the officer who was lying defenselessly on the sidewalk and fired several .38 caliber bullets down at him, one of which hit him between the eyes and killed him instantaneously, whereas the other shots missed.
  • —– These missing shots would have produced traces in the sidewalk that it would have been impossible to overlook, since bullets of that caliber would have left large divots, or even holes with concrete broken away, in the sidewalk.
  • —– Neither the one police photo of where Faulkner allegedly lay, nor a full nine other Polakoff photos taken of the same area from various angles, show any traces of such shots into the sidewalk.
  • —– Even if we grant that interpreting photographs can at times be a complex endeavor, the apparent absence of any such divots renders the prosecution witnesses’ testimony highly problematic, to say the least.

7. Couldn’t the other shots have glanced off the sidewalk or hit at such an angle that they might not have left any trace?

  • This is highly unlikely. In the first place, the prosecution witnesses and prosecutors’ summary of the crime claim that a killer stood directly above Jamal, straddling him even, and fired downward. From that angle any missing shots are most likely discharged in a downward direction that would leave divots. In the second place, a highly qualified ballistics expert who was consulted by Schiffmann has informed him that firing .38 caliber bullets in this way would “inevitably” produce divots in the sidewalk.[4] The same point is made in the specialized literature on the subject. Again, this is a new matter that was never heard, or deliberated on, by a jury.

8. Are there other significant problems for the prosecution case raised by the Polakoff photos?

  • Yes, many, but two more should be noted, especially. First, the testimony of taxi driver Robert Chobert is further discredited. He claims to have been parked just behind the slain police officer’s squad car, with a direct view of the killing. The Polakoff photos show the space behind the officer’s car and there is no sign of Chobert’s taxi, giving fuller support to the conjecture that Chobert’s probationary status for a past act of throwing a Molotov cocktail into a grammar schoolyard, and the fact that he was driving his cab without a license on account of repeated DUI violations, might have made him vulnerable to police pressure to say he saw what he didn’t see.

Second, the photos raise further questions about police contamination or manipulation of evidence at the crime scene. One Polakoff photo shows police officer Faulkner’s hat on the top of the VW he had pulled over, whereas the official police photo, taken later and used at the trial has the hat on the sidewalk where prosecutors say Faulkner was slain (and a later Polakoff photo has it moved to the ground also, which corresponds with the official police photo). Several Polakoff photos show police officer James Forbes at the crime scene holding the recovered weapon in his bare hand, even changing the guns from one hand to another, whereas at trial Forbes had denied touching the guns metal parts for the full one-and-a-half hours he held them. Again, these matters were not heard by a jury.

9. Wouldn’t the police and prosecutors be interested in such early photos of the crime scene?

  • One would think so. Polakoff reports, however, that the police showed no interest. After Polakoff’s photographic work had been so obvious to police at the crime scene in 1981, he expected to be contacted by the police or by the D.A. He was not. Polakoff also phoned the DA’s office in 1982. Then, in the 1990s, Polakoff says, “when there was this big fuss about a new trial for Abu-Jamal, I contacted them myself and asked them to get back to me. They didn’t even answer me.”[5] He was offering them the photos and what he had to say about them. The interest that police and the DA’s Office should have shown was suspiciously absent.

10. In spite of their failure to respond to Polakoff, is there any evidence that the police and prosecutors did know about his photos?

  • As noted above, the police were very much aware that he was shooting these photos during the early moments at the crime scene in 1981. There is no way they would not be aware of that basic fact. Moreover, according to Schiffmann, three of Polakoff’s photos did appear in different Philadelphia newspapers during the days just after the shooting. Schiffmann summarizes: “It is a breathtaking lack of investigative zeal that they didn’t get back to him all by themselves despite the fact that the cops knew him well and his name was clearly visible on the photos, at least in the editions of them I came across on the internet in May 2006.”[6]

11. Were any of the photos used in the trial of 1982?

  • No, they were not used at the 1982 trial where Abu-Jamal was convicted, nor at any of his later appellate hearings, nor at the PCRA Hearings of the 1990s.

12. If these photos are potentially helpful to Abu-Jamal’s case, why didn’t Abu-Ja­mal’s several teams of attorneys make use of them?

  • The answer to this query is simple: the Abu-Jamal attorneys did not know then that the Polakoff photos existed. Now that they do know, it’s a different story. Present attorney, Robert Bryan, has said he “could have a field day in court with those photos” – provided, of course, that Abu-Jamal gets a new trial.

13. Why didn’t Polakoff contact Abu-Jamal’s defense team about his photos, after he had not received any responses from the police or prosecutors?

  • In the period of the shooting, and right up to the recent present, Polakoff was very supportive of the police view of the case, having, according to Schiffmann, “not the slightest doubt that Mumia was the murderer.”[7] Polakoff wanted to help the prosecution and was surprised when they were totally uninterested in his photos. He had no motivation to contact the defense team.

II. Implications

14. Why was Polakoff so sure Mumia was the shooter? After all, even though he was an early arrival to the crime scene, he wasn’t early enough to see the shooting.

  • Polakoff simply believed the police who told him that a fellow cop had been shot and that they “had the motherfucker who did it.”[8] When he offered the photos to them he just wanted to try to help them confirm that argument with the material available to him.

15. Was Polakoff told anything else by the police about the killing of Daniel Faulkner?

  • Yes. In fact, Polakoff says, “all the officers present expressed the firm conviction that Abu-Jamal had been the passenger in Billy Cook’s VW and had fired and killed Faulkner by a single shot fired from the passenger seat of the car.”[9] For all the years after the case, since Polakoff had read almost nothing else about the details and debates about what happened, he “held the firm opinion that this was indeed what had taken place,” i.e. that Mumia – contrary to actual fact – had been riding in his brother’s VW and emerged from there to shoot Faulkner.[10]

16. At Abu-Jamal’s trial, police, prosecutors, and defense were all agreed that Mu­mia approached the scene from his own cab through a parking lot across the street. So, where did the police get this early version of the crime that the shooter emerged from the passenger seat of Billy Cook’s VW?

  • Polakoff told Schiffmann that the early police opinion was the result of interviewing three other witnesses who were still present at the crime scene (a parking lot attendant, a drug addicted woman, and another woman) – none of whom, however, seem to have “appeared in any report presented by the police or the prosecution.”[11] Polakoff concluded this from statements made by the police to him directly, and from his overhearing of their conversations.

17. Has anyone else ever claimed that there was someone else riding with Abu-Ja­mal’s brother that night in the passenger seat?

  • Update January 27, 2008: Yes. None other than that brother himself, Billy Cook, has now corroborated for the excellent new documentary on Mumia Abu-Jamal “In Prison My whole Life.” This is the first time that Cook has made a statement in front of a camera to the effect that indeed there was a “friend” with him that night. As for the identity of that friend and Billy Cook’s take on what later happened to him, see the updates to Q. 20 and 21.
  • Another person to indicate that a passenger was riding in Billy Cook’s car was one of the prosecution’s own witnesses, Cynthia White. She testified in the trial of Billy Cook himself, where Abu-Jamal prosecutor Joseph McGill functioned in the same role as in the Abu-Jamal trial. One of her remarks was highly problematic for the pro­secution, whose murder case against Abu-Jamal had always been based on the presupposition that only three persons were present at the scene: Faulkner, Abu-Jamal, and Cook:[12]
  • —– White: And the police got out of the police car and walked over to the Volkswagen. And he didn’t get all the way to the Volks­wagen, and the driver of the Volkswagen was passing some words. He had walked around between the two doors, walked up to the sidewalk.

McGill: Who walked?

White: The passenger – the driver. The driver and the police officer.

McGill: When the officer went up to the car, which side of the car did the officer go up to?

White: A. The driver side.

McGill: The driver side?

White: Yes.

McGill: What did the passenger do?

White: He had got out.

McGill: What did the driver do?

White: He got out of the car.

McGill: He got out of the car?

White: Yes.[13]

  • The language of this dialogue seems to point pretty clearly to the presence of another person at the scene, namely, a passenger in Billy Cook’s VW. The driver of a car and the passenger of a car are notions that are hard to confuse, but moreover, White also says that the driver “got out of the car,” while the passenger “had got out of the car,” which once again points to the driver and the passenger as being two distinct persons. The prosecution never clarified this question.
  • —– That other man, who would have been a third man at the crime scene (in addition to Billy Cook and Abu-Jamal), was never acknowledged by prosecutors or police at Abu-Jamal’s trial.
  • —– Even though it is almost certain that Cynthia White didn’t observe the shooting itself, she may very well have seen the beginning of the events, an apparently unmotivated traffic stop of a Black male by a white police officer, after which she most likely turned away as quickly as possible to avoid harassment for her ‘illegal’ work as a prostitute.

18. Why would Abu-Jamal and his brother, Billy Cook, not themselves emphasize the presence of the third man, presumably a childhood friend of both Cook and Abu Jamal named Kenneth Freeman (see Q. 20), at the crime scene and thus a potential suspect?

  • Schiffmann argues that the identity of the third man, Kenneth Freeman, means that if Abu-Jamal and his brother fingered him as the killer they would have been pinning blame not only on a friend of theirs, but on a friend of their family. Freeman would then have had to face the same fate that Abu-Jamal did – for an action that might have been considered as legitimate self-defense and the defense of others on the part of Abu-Jamal and Billy Cook.[14]
  • The background to this is that according to Schiffmann, all the available evidence points to the conclusion that the December 9, 1981 shootout was triggered by the life-threatening shot that Officer Faulkner fired into Abu-Jamal’s chest. With Mumia Abu-Jamal already incapacitated, most likely the third man on the scene, Kenneth Freeman then sprang into action and began firing at the officer, in what he probably conceived as defense of Abu-Jamal, his brother, and not least himself. But of course there was no guarantee, to put it mildly, that the Philadelphia courts would interpret this as self-defense. So Freeman ended up being left out of the picture by the two other men involved, Mumia Abu-Jamal and Billy Cook.

19. Is there any evidence that Kenneth Freeman was the kind of person who could be considered a threat to a police officer?

  • In a deposition by Philadelphia journalist Linn Washington, Jr., he stated that Kenneth Freeman frequently reported his experiences of police brutality to the Philadelphia Tribune where Washington worked. Washington knew Freeman as a frequent victim of police abuse.[15] Washington has also stated repeatedly that, on account of this background, Freeman harbored “an enormous anger at the police.”[16]

20. Is there any evidence that Officer Faulkner that night had any interchange with a third person such as Kenneth Freeman?

  • Yes, in the shirt pocket of Officer Faulkner was a driver’s license application in the name of Arnold Howard, which Howard later testified was paperwork he had given to Kenneth Freeman. We don’t know quite why Freeman was given the paper work or what Freeman would do with it, but the fact that he was known to have it, and that it ended up in Officer Faulkner’s shirt pocket, suggests that Faulkner and Freeman had some interchange on the night of the shooting.
  • Update January 27, 2008: While Abu-Jamal’s brother Billy Cook in the film mentioned in Q. 17 declines to mention the name of the friend who was with him in the car that night, the context in which he was asked leaves little doubt that that “friend” and Kenneth Freeman were one and the same man. For Cook on Freeman’s further fate, see Q. 21.
  • Six people, Robert Chobert, Dessie Hightower, Veronica Jones, Deborah Kordansky, William Singletary, and Marcus Cannon, reported at various times that they saw one or more men run away from the scene, in the direction of a nearby alleyway which would have been a very suggestive escape route for anyone who would want to avoid being caught by the police.
  • —– One of these people was prosecution witness Robert Chobert. There is every indication – see for this, inter alia, question 8 – that Chobert did not observe the shooting itself and was not where he claimed to have been, behind Police Officer Faulkner’s car, but he may very well have observed the person that fled the scene after the shooting. Chobert first simply said that the shooter had run away. Shortly after this, after he had identified Abu-Jamal, he said the shooter had run away but did not get very far – 30 to 35 steps and was then caught. At the trial, Chobert said the shooter made it no further than ten feet. Actually, Abu-Jamal was right next to the dead officer and thus fit neither of the accounts given by Chobert. Interestingly, in his first descriptions after the shooting, Chobert described the shooter as large, stocky, weighing 220 to 225 pounds and wearing dreadlocks – a description that fits Kenneth Freeman as he is remembered by acquaintances almost perfectly.

21. Where is Kenneth Freeman himself now?

  • He was found dead on the night of May 13/14, 1985, the night of the firebombing of the MOVE house. Freeman was found “handcuffed and shot up with drugs and dumped on a Grink’s lot on
    Roosevelt Boulevard

    , buck naked.”[17] Again, no jury ever heard or deliberated on Kenneth Freeman’s fate, or on his possible connections to the crime for which Mumia Abu-Jamal was convicted and sentenced to death.

  • Given the actual flimsiness of the case against Abu-Jamal – lying eyewitnesses, a phony confession, distorted or non-existent ballistic evidence – the police at the scene had to suspect that someone else was involved and probably the actual shooter. Since they were aware of the Howard license in Faulkner’s shirt, an immediate trail led to none other than Kenneth Freeman. Given the revengefulness and propensity of the Philadelphia police for deadly violence, as well as the date and extremely suspicious circumstances under which the dead Freeman was found, the conclusion that he was killed by the police as part of

21 FAQS ON THE POLAKOFF PHOTOS

THE POLAKOFF PHOTOS

New Photos of the Crime Scene of the Shooting Death of

Police Officer Daniel Faulkner

21 FAQs –  FREQUENTLY ASKED QUESTIONS

by Educators for Mumia Abu-Jamal  and Journalists for Mumia Abu-Jamal,

in consultation with Dr. Michael Schiffmann

Mumia Abu-Jamal has been on Pennsylvania ‘s death row for over a quarter of a century. His 1982 conviction for the shooting death of Philadelphia Police Officer Daniel Faulkner, has been contested by jurists, human rights organizations, and peoples of conscience the world over. Even though he is arguably the most famous political prisoner in the United States, his case and struggle for justice distill many of the issues that racially stigmatized groups and others have faced in the United States for decades: police brutality and violence, racist applications of the death penalty, prosecutorial misconduct, suborning of witnesses, and the use of wealth and political privilege in criminal justice systems to service the ideological interests of groups and classes in power.
Within the last year, some 26 photos have been discovered by researcher Dr. Michael Schiffmann of the University of Heidelberg , showing the crime scene where Officer Faulkner was killed. These photos were offered to police and prosecutors from the beginning, but were never considered at Abu-Jamal’s 1982 trial, or in any judicial phase of his struggle for justice thereafter. Indeed, they were unknown even to Abu-Jamal’s defense team, until very recently. To widen public knowledge about these photos and to answer many of the basic questions about them, Educators for Mumia Abu-Jamal and Journalists for Mumia Abu-Jamal have collaborated to produce this document of “21 FAQs about the Polakoff Photos.” We stress that while it is important for the public to have knowledge about these photos, and to debate them in the media and public forum, the most important and necessary move is for the court system to give Abu-Jamal a new trial and deliberate officially on this evidence and all evidence that is potentially exculpatory for Abu-Jamal.

For more information, please see previous press-releases from May, October, and December (4 photos can be viewed at Abu-Jamal-News.com). Video footage is now available of the Dec.4 Journalists for Mumia press conference addressing the photos (Parts One and Two), as well as the Dec. 8 slide show presentation of the photos, which were recently spotlighted by Reuters, NBC’s Today Show, National Public Radio, Counterpunch, The SF Bay View Newspaper, The Black Commentator, The Philadelphia Weekly, and others.

More extensive information on the case can be found at the following websites:  FreeMumia.com (New York City), FreeMumia.org (San Francisco), EmajOnline.com (Educators for Mumia), Abu-Jamal-News.com (Journalists for Mumia), or by contacting: The International Concerned Family & Friends of Mumia Abu-Jamal, P.O. Box 19709, Philadelphia, PA 19143, (215) 476-8812, icffmaj@aol.com .

I. Facts

1. Why are these photos coming out just now, and how were they discovered?

  • The photos were discovered by University of Heidelberg linguist and translator, Michael Schiffmann, during an unrelated internet search in late May 2006. Schiffmann first found two photos taken by a freelance photographer, Pedro Polakoff. Later he would have access to over 26 of Polakoff’s photos of the crime scene. Previous researchers and those debating the Mumia case, in court or outside of court, seem to have had no knowledge of these photos until this discovery, and until Schiffmann’s later discussion of the photos in his 2006 book, Race Against Death: The Struggle for the Life and Freedom of Mumia Abu-Jamal (published only in Germany, with an English manuscript presently available). Educators for Mumia Abu-Jamal (EMAJ) and Journalists for Mumia Abu-Jamal (J4M) have been instrumental in circulating knowledge of Schiffmann’s discovery.

2. Is there any chance these Polakoff photos could be fake or doctored?

  • Schiffmann has responded to this query directly: “Polakoff has preserved the original negatives, from which the images viewed on the internet were directly scanned, with a negative scanner. As the negatives show, Daniel Faulkner’s hat started on the top of the VW, and only later showed up on the sidewalk, where it would then remain for the official police photo. There isn’t a scintilla of a doubt about its authenticity, […] and there isn’t the slightest doubt about the time sequence of the photographs, a question that I’ve gone through with photographer Pedro Polakoff again and again and again.”[1]

3. Who is this photographer?

  • Pedro P. Polakoff was a freelance photographer in Philadelphia who got to the crime scene just 12 minutes after the shooting was first reported on police radio, and apparently at least 10 minutes before the Philadelphia Police Mobile Crime Detection (MCD) Unit that handles crime scene forensics and photographs.

4. How could Polakoff get access to the crime scene for these photos?

  • Polakoff was himself surprised about how he could move and photograph freely everywhere at the crime scene, even after the PPD Mobile Crime Unit arrived. Polakoff told Schiffmann that it was the “most messed up crime scene I have ever seen.” It was completely unsecured, a fact testified to also by Philadelphia journalist, Linn Washington, Jr.[2]

5. How did Schiffmann get his information from Polakoff?

  • After the first contact, first by telephone, and then by email with Polakoff, Schiffmann amassed over 60 pages of email notes from questioning Polakoff.  He also had over six weeks of other contacts with Polakoff, “without ever revealing more to him,” writes Schiffmann, “than the fact that I was working on a book on the case.” Only relatively later in the conversations with Polakoff did Schiffmann reveal his own views and suspicions about the prosecutors’ version of the case. Schiffmann also has studied Polakoff’s many responses at different points during his contacts, and Schiffmann finds that Polakoff is both detailed and consistent each time.

6. What is most important about the 26 Polakoff photos?

  • This question must be approached both as a procedural question and as a substantive question. Procedurally, there is the fact that Polakoff offered the 26 photos to the police and DA’s Office, and they showed no interest in them. The photos surely never entered the court record of Abu-Jamal’s case to be set before a jury’s deliberation. Let us grant that photos can enter as evidence in many ways, and a photo which very clearly shows one thing to one person can show something very different to another person, often depending on context (of other evidence, knowledge, personal experience and ideological interests, and so on). Nevertheless, the key procedural point is that the Polakoff photos, which were available and offered to police and prosecutors in both 1981/1982, and in the 1990s, never even made it into the evidentiary record of this case. They were omitted, left out, of all procedures for investigating Officer Faulkner’s death.
  • Substantively, the Polakoff photos enable defense attorneys, and by extension the court, to raise significant reasonable doubt about the basic scenario of Officer Faulkner’s death – a scenario that prosecutors constructed to argue for Abu-Ja­mal’s guilt. In light of the Polakoff photos, that scenario could be completely destroyed by attorneys. In particular, testimony for the prosecution about that scenario, provided by Cynthia White, Robert Chobert and Michael Scanlon, becomes incredible.[3]
  • —– At the 1982 trial of Abu-Jamal, they all testified that the killer stood over the officer who was lying defenselessly on the sidewalk and fired several .38 caliber bullets down at him, one of which hit him between the eyes and killed him instantaneously, whereas the other shots missed.
  • —– These missing shots would have produced traces in the sidewalk that it would have been impossible to overlook, since bullets of that caliber would have left large divots, or even holes with concrete broken away, in the sidewalk.
  • —– Neither the one police photo of where Faulkner allegedly lay, nor a full nine other Polakoff photos taken of the same area from various angles, show any traces of such shots into the sidewalk.
  • —– Even if we grant that interpreting photographs can at times be a complex endeavor, the apparent absence of any such divots renders the prosecution witnesses’ testimony highly problematic, to say the least.

7. Couldn’t the other shots have glanced off the sidewalk or hit at such an angle that they might not have left any trace?

  • This is highly unlikely. In the first place, the prosecution witnesses and prosecutors’ summary of the crime claim that a killer stood directly above Jamal, straddling him even, and fired downward. From that angle any missing shots are most likely discharged in a downward direction that would leave divots. In the second place, a highly qualified ballistics expert who was consulted by Schiffmann has informed him that firing .38 caliber bullets in this way would “inevitably” produce divots in the sidewalk.[4] The same point is made in the specialized literature on the subject. Again, this is a new matter that was never heard, or deliberated on, by a jury.

8. Are there other significant problems for the prosecution case raised by the Polakoff photos?

  • Yes, many, but two more should be noted, especially. First, the testimony of taxi driver Robert Chobert is further discredited. He claims to have been parked just behind the slain police officer’s squad car, with a direct view of the killing. The Polakoff photos show the space behind the officer’s car and there is no sign of Chobert’s taxi, giving fuller support to the conjecture that Chobert’s probationary status for a past act of throwing a Molotov cocktail into a grammar schoolyard, and the fact that he was driving his cab without a license on account of repeated DUI violations, might have made him vulnerable to police pressure to say he saw what he didn’t see.

Second, the photos raise further questions about police contamination or manipulation of evidence at the crime scene. One Polakoff photo shows police officer Faulkner’s hat on the top of the VW he had pulled over, whereas the official police photo, taken later and used at the trial has the hat on the sidewalk where prosecutors say Faulkner was slain (and a later Polakoff photo has it moved to the ground also, which corresponds with the official police photo). Several Polakoff photos show police officer Steve Forbes at the crime scene holding the recovered weapon in his bare hand, even changing the guns from one hand to another, whereas at trial Forbes had denied touching the guns metal parts for the full one-and-a-half hours he held them. Again, these matters were not heard by a jury.

9. Wouldn’t the police and prosecutors be interested in such early photos of the crime scene?

  • One would think so. Polakoff reports, however, that the police showed no interest. After Polakoff’s photographic work had been so obvious to police at the crime scene in 1981, he expected to be contacted by the police or by the D.A. He was not. Polakoff also phoned the DA’s office in 1982. Then, in the 1990s, Polakoff says, “when there was this big fuss about a new trial for Abu-Jamal, I contacted them myself and asked them to get back to me. They didn’t even answer me.”[5] He was offering them the photos and what he had to say about them. The interest that police and the DA’s Office should have shown was suspiciously absent.

10. In spite of their failure to respond to Polakoff, is there any evidence that the police and prosecutors did know about his photos?

  • As noted above, the police were very much aware that he was shooting these photos during the early moments at the crime scene in 1981. There is no way they would not be aware of that basic fact. Moreover, according to Schiffmann, three of Polakoff’s photos did appear in different Philadelphia newspapers during the days just after the shooting. Schiffmann summarizes: “It is a breathtaking lack of investigative zeal that they didn’t get back to him all by themselves despite the fact that the cops knew him well and his name was clearly visible on the photos, at least in the editions of them I came across on the internet in May 2006.”[6]

11. Were any of the photos used in the trial of 1982?

  • No, they were not used at the 1982 trial where Abu-Jamal was convicted, nor at any of his later appellate hearings, nor at the PCRA Hearings of the 1990s.

12. If these photos are potentially helpful to Abu-Jamal’s case, why didn’t Abu-Ja­mal’s several teams of attorneys make use of them?

  • The answer to this query is simple: the Abu-Jamal attorneys did not know then that the Polakoff photos existed. Now that they do know, it’s a different story. Present attorney, Robert Bryan, has said he “could have a field day in court with those photos” – provided, of course, that Abu-Jamal gets a new trial.

13. Why didn’t Polakoff contact Abu-Jamal’s defense team about his photos, after he had not received any responses from the police or prosecutors?

  • In the period of the shooting, and right up to the recent present, Polakoff was very supportive of the police view of the case, having, according to Schiffmann, “not the slightest doubt that Mumia was the murderer.”[7] Polakoff wanted to help the prosecution and was surprised when they were totally uninterested in his photos. He had no motivation to contact the defense team.

II. Implications

14. Why was Polakoff so sure Mumia was the shooter? After all, even though he was an early arrival to the crime scene, he wasn’t early enough to see the shooting.

  • Polakoff simply believed the police who told him that a fellow cop had been shot and that they “had the motherfucker who did it.”[8] When he offered the photos to them he just wanted to try to help them confirm that argument with the material available to him.

15. Was Polakoff told anything else by the police about the killing of Daniel Faulkner?

  • Yes. In fact, Polakoff says, “all the officers present expressed the firm conviction that Abu-Jamal had been the passenger in Billy Cook’s VW and had fired and killed Faulkner by a single shot fired from the passenger seat of the car.”[9] For all the years after the case, since Polakoff had read almost nothing else about the details and debates about what happened, he “held the firm opinion that this was indeed what had taken place,” i.e. that Mumia – contrary to actual fact – had been riding in his brother’s VW and emerged from there to shoot Faulkner.[10]

16. At Abu-Jamal’s trial, police, prosecutors, and defense were all agreed that Mu­mia approached the scene from his own cab through a parking lot across the street. So, where did the police get this early version of the crime that the shooter emerged from the passenger seat of Billy Cook’s VW?

  • Polakoff told Schiffmann that the early police opinion was the result of interviewing three other witnesses who were still present at the crime scene (a parking lot attendant, a drug addicted woman, and another woman) – none of whom, however, seem to have “appeared in any report presented by the police or the prosecution.”[11] Polakoff concluded this from statements made by the police to him directly, and from his overhearing of their conversations.

17. Has anyone else ever claimed that there was someone else riding with Abu-Ja­mal’s brother that night in the passenger seat?

  • One person to indicate that a passenger was riding in Billy Cook’s car was one of the prosecution’s own witnesses, Cynthia White. She testified in the trial of Billy Cook himself, where Abu-Jamal prosecutor Joseph McGill functioned in the same role as in the Abu-Jamal trial. One of her remarks was highly problematic for the pro­secution, whose murder case against Abu-Jamal had always been based on the presupposition that only three persons were present at the scene: Faulkner, Abu-Jamal, and Cook:[12]
  • —– White: And the police got out of the police car and walked over to the Volkswagen. And he didn’t get all the way to the Volks­wagen, and the driver of the Volkswagen was passing some words. He had walked around between the two doors, walked up to the sidewalk.

McGill: Who walked?

White: The passenger – the driver. The driver and the police officer.

McGill: When the officer went up to the car, which side of the car did the officer go up to?

White: A. The driver side.

McGill: The driver side?

White: Yes.

McGill: What did the passenger do?

White: He had got out.

McGill: What did the driver do?

White: He got out of the car.

McGill: He got out of the car?

White: Yes.[13]

  • The language of this dialogue seems to point pretty clearly to the presence of another person at the scene, namely, a passenger in Billy Cook’s VW. The driver of a car and the passenger of a car are notions that are hard to confuse, but moreover, White also says that the driver “got out of the car,” while the passenger “had got out of the car,” which once again points to the driver and the passenger as being two distinct persons. The prosecution never clarified this question.
  • —– That other man, who would have been a third man at the crime scene (in addition to Billy Cook and Abu-Jamal), was never acknowledged by prosecutors or police at Abu-Jamal’s trial.
  • —– Even though it is almost certain that Cynthia White didn’t observe the shooting itself, she may very well have seen the beginning of the events, since in her testimony regarding Abu-Jamal, she mentioned a fact that was both true and inconvenient for the prosecution, namely, the beating of Billy Cook by Officer Faulkner.

18. Why would Abu-Jamal and his brother, Billy Cook, not themselves emphasize the presence of the third man, Kenneth Freeman, at the crime scene and thus a potential suspect?

  • Schiffmann argues that the identity of the third man, Kenneth Freeman, means that if Abu-Jamal and his brother fingered him as the killer they would have been pinning blame not only on a friend of theirs, but on a friend of their family. Freeman would then have had to face the same fate that Abu-Jamal did – for an action that might have been considered as legitimate self-defense and the defense of others on the part of Abu-Jamal and Billy Cook.[14]
  • The background to this is that according to Schiffmann, all the available evidence points to the conclusion that the December 9, 1981 shootout was triggered by the life-threatening shot that Officer Faulkner fired into Abu-Jamal’s chest. With Mumia Abu-Jamal already incapacitated, most likely the third man on the scene, Kenneth Freeman then sprang into action and began firing at the officer, in what he probably conceived as defense of Abu-Jamal, his brother, and not least himself. But of course there was no guarantee, to put it mildly, that the Philadelphia courts would interpret this as self-defense. So Freeman ended up being left out of the picture by the two other men involved, Mumia Abu-Jamal and Billy Cook.

19. Is there any evidence that Kenneth Freeman was the kind of person who could be considered a threat to a police officer?

  • In a deposition by Philadelphia journalist Linn Washington, Jr., he stated that Kenneth Freeman frequently reported his experiences of police brutality to the Philadelphia Tribune where Washington worked. Washington knew Freeman as a frequent victim of police abuse.[15] Washington has also stated repeatedly that, on account of this background, Freeman harbored “an enormous anger at the police.”[16]

20. Is there any evidence that Officer Faulkner that night had any interchange with a third person such as Kenneth Freeman?

  • Yes, in the shirt pocket of Officer Faulkner was a driver’s license application in the name of Arnold Howard, which Howard later testified was paperwork he had given to Kenneth Freeman. We don’t know quite why Freeman was given the paper work or what Freeman would do with it, but the fact that he was known to have it, and that it ended up in Officer Faulkner’s shirt pocket, suggests that Faulkner and Freeman had some interchange on the night of the shooting.
  • Six people, Robert Chobert, Dessie Hightower, Veronica Jones, Deborah Kordansky, William Singletary, and Marcus Cannon, reported at various times that they saw one or more men run away from the scene, in the direction of a nearby alleyway which would have been a very suggestive escape route for anyone who would want to avoid being caught by the police.
  • —– One of these people was prosecution witness Robert Chobert. There is every indication – see for this, inter alia, question 8 – that Chobert did not observe the shooting itself and was not where he claimed to have been, behind Police Officer Faulkner’s car, but he may very well have observed the person that fled the scene after the shooting. Chobert first simply said that the shooter had run away. Shortly after this, after he had identified Abu-Jamal, he said the shooter had run away but did not get very far – 30 to 35 steps and was then caught. At the trial, Chobert said the shooter made it no further than ten feet. Actually, Abu-Jamal was right next to the dead officer and thus fit neither of the accounts given by Chobert. Interestingly, in his first descriptions after the shooting, Chobert described the shooter as large, stocky, weighing 220 to 225 pounds and wearing dreadlocks – a description that fits Kenneth Freeman as he is remembered by acquaintances almost perfectly.

21. Where is Kenneth Freeman himself now?

  • He was found dead on the night of May 13/14, 1985, the night of the firebombing of the MOVE house. Freeman was found “handcuffed and shot up with drugs and dumped on a Grink’s lot on
    Roosevelt Boulevard

    , buck naked.”[17] Again, no jury ever heard or deliberated on Kenneth Freeman’s fate, or on his possible connections to the crime for which Mumia Abu-Jamal was convicted and sentenced to death.

  • Given the actual flimsiness of the case against Abu-Jamal – lying eyewitnesses, a phony confession, distorted or non-existent ballistic evidence – the police at the scene had to suspect that someone else was involved and probably the actual shooter. Since they were aware of the Howard license in Faulkner’s shirt, an immediate trail led to none other than Kenneth Freeman. Given the revengefulness and propensity of the Philadelphia police for deadly violence, as well as the date and extremely suspicious circumstances under which the dead Freeman was found, the conclusion that he was killed by the police as part of a general vendetta against its perceived “enemies” (remember that 11 MOVE members were killed the same night) doesn’t seem far-fetched.


[1] J4M communiqué, December 12, 2007.

Mark Taylor’s Review of Murdered By Mumia

THE NEW BOOK BY

MAUREEN FAULKNER AND MICHAEL SMERCONISH

How Not to Build One’s Case for Justice

A Review of Maureen Faulkner and Michael A. Smerconish, Murdered By Mumia: A Life Sentence of Loss, Pain, and Injustice. Guilford, CT: The Lyons Press, 2007, 349 pp.

by Mark Lewis Taylor

Educators for Mumia Abu-Jamal (EMAJ)

December 19, 2007

Maureen Faulkner, widow of slain Philadelphia Police Officer, Daniel Faulkner, and conservative Philly radio talk-show host, Michael Smerconish, released their new book in early December 2007. It is their take on the decades-long debate about perhaps the most contested death penalty case today, one that dates back to the 1982 conviction and death sentence of Mumia Abu-Jamal for the officer’s murder. The book’s chapters are organized roughly in terms of what Maureen Faulkner sees as her emotional ups and downs relating to her public relations victories and defeats, in her struggle to see Abu-Jamal executed.

The battle lines have firmed up over the years as prosecutors continue to argue they have “slam dunk” evidence of Abu-Jamal’s guilt, even while ever more analysts and human rights organizations – Amnesty International, for example – call for a new trial.

In their book, Faulkner and Smerconish definitely embrace the slam-dunk view of evidence for Abu-Jamal’s guilt and are out to explain to readers, as Maureen Faulkner puts it, “why I and my family need to see Jamal executed” (300).

As this quote from the book shows, the prose is all in Maureen Faulkner’s first person voice. Smerconish merely aims “to play scribe for her,” as she sits in his study satisfying his request for all the details of her struggle to see Abu-Jamal executed for the murder of her husband (xvi-xv).

The result is a blend-in that takes a woman’s and her family’s very real loss and pain and mixes it with the political agendas that are familiar to anyone who knows Smerconish’s several books and radio screeds against “the disease of political correctness.” Being politically correct is Smerconish’s negative term for anyone who voices political criticism of social and political structures, especially if this means not sharing Smerconish’s “instincts” (his term) to support law enforcement and to have “always respected the uniform.”

Precisely here, in this foregrounding of respect for the uniform, is what I will call the book’s first “rhetorical strategy of persuasion,” its way of inviting readers into sympathy and agreement. In this review, I suggest that these strategies are as problematic and flawed, if not more so, than are its misreadings of the facts of the case.

Other reviewers of this book have already treated the inaccuracies in the facts as rendered in Murdered By Mumia.[1] There are also some glaring omissions in the book of key problems, such as a court stenographer Terri Maurer-Carter’s affidavit holding that she overheard trial judge Albert Sabo saying during a break from Abu-Jamal’s trial, “Yeah, and I’m going to help ‘em fry the n—— .” Nor is there treatment of testimony revealing that a third man at the scene in all likelihood had been riding in the VW of Abu-Jamal’s brother, Billy Cook.[2] There are some notable inaccuracies, too, such as getting wrong the name of that third man, writing as they do of “Howard Freeman” (140), not Kenneth Freeman.

These inadequacies are compounded by the rhetorical strategies used by the book, and it is these on which I concentrate in this review. Let us begin with this first strategy of “respecting the uniform.” It leads up to four other strategies that are also flawed.

Recall, these rhetorical strategies concern the book’s approach to trying to persuade readers to accept the authors’ reading of the case. By looking at these strategies we not only have one way of evaluating the book’s claims, but also of understanding to whom this book makes its appeal.

Rhetorical Strategy No.1 – Assume Instinctive Allegiance to the Uniform

Faulkner’s and Smerconish’s respect for the uniform is not limited to just a respect for the man or woman in a police uniform who works the street. It is extended to mean respect for all elements of the political order that may be linked with such men and women: the Fraternal Order of Police, local judges and Supreme Court justices, District Attorneys, and any supportive politicians who stand with these groups.

Faulkner expresses throughout her book a near unqualified devotion to these institutional backers of the uniform. Twenty-some years after the trial, she still receives police escort and transport in police vans, to and from court hearings (144-5). She celebrates perceived public relations gains at offices and establishments frequented by Philadelphia police. She thrills to the roar of thousands of bikers on a memorial run for her slain husband, 12,000 of whom once received special escort from the Philadelphia Highway Patrol with Police Commissioner John Timoney leading the caravan (258). The bikers she celebrates would later organize themselves into B.A.C.U.P., Bikers Allied to Commemorate Uniformed Police, Inc.

One early book-signing event displayed respect for the uniform with a full-fledged cultural event at Geno’s Steaks, a Philly establishment renowned for its unqualified support for police “This is very pro-cop. We believe in justice,” said Geno’s owner Jerry Vento at the signing event, also explaining why any Abu-Jamal supporters would find the place to be “…a little bad territory for them to come in here.” The signing included a ceremony complete with prayer, taps, and “Amazing Grace” on bagpipes played by the Philadelphia Police and Fire Pipes and Drum Corp.[3]

Faulkner, Smerconish and their supporters surely have every right to celebrate their freedom of speech and their publications, and to gather with their friends as they may wish. But the fact that they abound with respect and rituals for the uniform is not grounds for the integrity of claims they make about Abu-Jamal’s guilt or innocence.

Not only does such claimed allegiance to the uniform beg all the questions that have been debated in this case, it also overlooks the failure and corruption, the doing of injustice, which has been performed by those in police uniform in Philadelphia .

Maureen Faulkner’s support, personally and professionally, for the Fraternal Order of Police, the District Attorneys Office, Police Commissioners, and the police generally, includes her frequent words of praise for those who officiated at Abu-Jamal’s original trial and appellate process, first Judge Albert Sabo and prosecutor Joseph McGill, and also Hugh Burns who overseas the case today for the D.A.’s Office. There is no mention of the historical background of police corruption in Philadelphia .[4] Also unmentioned is the “2003 study by a state supreme court-appointed committee which confirmed that the entire Philadelphia legal system, along with the Pennsylvania appellate courts that review that system are rife with racism, and that death penalty prosecutions, especially in Philadelphia are poisoned by prejudice.”[5] Faulkner and Smerconish go out of their way to intentionally praise Judge Sabo (31-33, 132), even though both the Philadelphia Inquirer and the Philadelphia Daily News, hardly Abu-Jamal supporters, called for Sabo’s removal during the 1990s PCRA hearings.

Indeed, this book’s rhetorical strategy, rooting itself in “instincts” of pervasive respect for the uniform, may be, in Philadelphia at least, actually to sabotage the book’s persuasive appeal. With no mention of the history of corruption by uniformed authorities in Philadelphia the authors’ instincts become suspect.

Rhetorical Strategy No. 2 – Define Truth in Narrow Terms

The authors take some pains to tell us what they mean by “truth,” especially in the matter of determining the truth of Abu-Jamal’s guilt or innocence. “Truth,” they say, is “that which is testified to while under oath by an individual in the courtroom and is deemed credible by the court” (215).

Now no one would deny – and the supporters of Abu-Jamal’s claims to innocence or to have a new trial do not deny it either – that it is unimportant to take what has been testified to “under oath” and “deemed credible by the court” with utter seriousness. And so the Abu-Jamal supporters have been just as committed to reading the transcripts as Faulkner and Smerconish claim to be. But this book’s definition of truth as simply what is in the court transcripts is too narrow.

Debates, even at the appellate court levels, always meant looking also at the conditions under which the testimony and transcripts were produced: who was allowed to testify and who not, who may have been vulnerable to pressure from authority and who not, who may have been biased in presiding over the case and who not? Abu-Jamal’s advocates have pressed questions in all these areas, arguing, for example, that opportunities to testify before a jury in court are being denied to Veronica Jones who claims that she was pressured by police to not testify for Abu-Jamal, and still denied also to Terri Maurer-Carter who claims to have heard Judge Albert Sabo say during a break from the original trial, “Yeah, and I’m going to help ‘em fry the n—–.” They have argued that Judge Sabo’s bias limited and shaped the ways testimony was taken and what went into the transcripts.

There are many other examples of these ways of questioning the conditions under which testimony was taken and given. No argument is settled simply by the fact of what the transcripts say, but rather by careful reflection on the conditions that generated those transcripts, i.e. the social, political and procedural conditions that have enabled and limited those transcripts. That is the domain of “truth” not really explored by Smerconish and Faulkner.

Indeed, their very definition of what truth is turns readers away from bothering with those important questions. Truth is not guaranteed by what’s in a transcript record, but by assuring due process in constructing that record.

Rhetorical Strategy No. 3 – Caricature Advocates for Abu-Jamal’s New Trial

Faulkner and Smerconish sustain a caricature of the movement for Abu-Jamal, a depiction that uses distortion and exaggeration. Let us admit that at times individuals in support of Abu-Jamal have dished out distortion and exaggeration of Faulkner and Smerconish, or of their supporters. With regard to this book’s view of the Abu-Jamal supporters, though, the caricature is most severe. Consider three ways in which this is so.

First, those working for Abu-Jamal are often characterized as out to cause Maureen pain. Even unrelated claims for Abu-Jamal are often seen by the authors as callous attacks on Faulkner, to cause her emotional pain and suffering. It is almost impossible to formulate any defensive proposition for Abu-Jamal, without Maureen Faulkner claiming that those propositions are out to hurt her and her family. Again, her emotions and pain are legitimate. She doesn’t need any of us to tell her or her supporters that. But those emotions and pain cannot be allowed, as they tend to become in this book, an arbiter of what justice is for Abu-Jamal.

Second, the book characterizes the movement as completely ignorant of the facts, as made up of people unable to weigh arguments. Mumia Abu-Jamal’s defenders are just “Mumidiots” (47). In fact, the commitment to weigh arguments, to follow the evidence, to get more of the evidence heard, has been the continuous concern of Abu-Jamal’s attorneys, of International Concerned Family and Friends of Mumia Abu-Jamal, of various authors writing on the case, and of scholar advocates from schools, colleges and universities.

It is telling in this regard that the Faulkner/Smerconish book makes no mention at all of two of the most measured and reasoned studies, the 2000 study by Amnesty International which called for a new trial, and the 2003 book by Dave Lindorff which remains one of the most exacting and thorough treatments of the case. I stress, there is not one attempt by Smerconish and Faulkner even to mention these works.

Nor do Faulkner and Smerconish make a single reference to the organization on Abu-Jamal’s behalf, of hundreds of educators from all levels of education, especially from colleges and universities. Through their organization of “Educators for Mumia Abu-Jamal,” these educators from the 1990s mobilized many press conferences, press releases, and also financed a full-page ad in the New York Times on May 5, 2000, to call for a new trial.[6] Faulkner and Smerconish repeatedly circulate the myth that only uninformed “ Hollywood celebrities” have stepped forward to speak in Abu-Jamal’s defense.

The third mode of caricature of the movement involves saying that the movement only thrives outside Philadelphia . Smerconish repeats the mantra: “what’s notable about Abu-Jamal’s support is that it grows in strength the farther one gets from Philadelphia ” (x). In response, let me refrain, here, from commenting on what historians establish as Philadelphia authorities’ heavy repression of community supporters of black dissidents, of dissidents in general, and also of black communities in the city, especially from the time of Mayor Frank Rizzo.[7]

In spite of that repressive history, which can account for why dissent over the years in Philadelphia has often been beaten down, there has been resistance. As a coordinator of EMAJ, I can easily point to one way in which this caricature is wrong. The educators who spoke out for a new trial and for the removal of Judge Sabo from Abu-Jamal’s case during the 1990s PCRA hearings, were not only from around the nation and the world, they were also from Philadelphia . Faculty signed their first ad in support of Abu-Jamal in 1995, and it was in the Philadelphia Daily News – not abroad, not outside of Philadelphia . They represented many of Philadelphia’s schools: Temple University , the University of Pennsylvania , Philadelphia University of the Sciences, Philadelphia Community College , Drexel University , Swarthmore College , and various secondary schools. In 1995, faculty from these schools, some eight in number, in fact, held a press conference in Philadelphia , to call for Sabo’s removal and for a new trial. The event was barely covered in the Philadelphia press.

Faulkner and Smerconish are as silent about all this work of local educators in their own city, as they are about the reputable and careful studies of the case by Amnesty International and Lindorff. Instead, they circulate a caricature of a misinformed and ignorant movement of non-thinkers, duped people in Paris, France, for example, or the “Mumidiots” everywhere, as they prefer to write (49).

No wonder these authors have shown themselves inept in responding to recent radio debates with Dave Lindorff, or with Pam Africa of International Concerned Family and Friends, or in showing themselves to have even a basic familiarity with the important recent studies by Michael Schiffmann concerning the repressed photos of Daniel Faulkner’s crime scene, taken by Pedro Polakoff.[8]

Rhetorical Strategy No. 4 – Demonize Mumia Abu-Jamal

Having set up an approach to the book in the ways described above, it will not be surprising that Faulkner and Smerconish demonize Mumia in various simplistic ways.

At times, readers will find Faulkner and Smerconish guilty of shameless hyperbole, as when they characterize Abu-Jamal’s court protest actions as those of a “latter-day Charles Manson” (35), or summarize the graduation ceremony at Antioch College, which featured Mumia as commencement speaker by way of audio-tape, as “like one of the rallies the Nazis staged in Nuremburg” (262).

Beyond this hyperbole, there is a continual demonization of Abu-Jamal as ominous specter. He is not simply guilty of a crime of murder, he is also “heartless executioner” (57), an “evil man” (82) with a “haunting grimace” of face (262) and an “unmistakable snarl” of voice (85), who bought the gun he was carrying as a Taxi driver “fully resolved,” say the authors, “to shoot and seriously injure or kill someone,” intending “the execution of anyone who crossed his path” (87).

As is usually the case with such a demonization of others, there is also a near complete idealization of one’s own group and life. I will not here seek to list off any flaws in the character of Daniel Faulkner, his family or supporters. In fact, I can imagine and see some virtues. But as this book recounts Faulkner’s life there is not one down-side, not one complex ambiguity mentioned by the authors. In the chapter, “Danny and Me,” the dominant story-line is about how Mumia cut short the life of Daniel Faulkner, a hard-driving, adventurous, goal-setting, blue-eyed Irish achiever in army life, then as prison guard, and later as a police officer frequently-awarded for “aggressive patrol procedures” (57-8).

The reference to Mumia as “heartless executioner” occurs at the end of a paragraph in this chapter where Daniel and the Faulkner family are presented as “good people…They went to church. They loved one another and looked out for one another. They worked hard. Nothing was handed to them. They stayed out of other people’s business and kept within the law. They were ‘good people’” (56)

I am not here proposing any reverse demonization of Faulkner, just some ambiguity, some freedom from the book’s all-too-easy polarization of hero-Faulkner versus demon-Mumia. The book does not give that complexity and thus sews some suspicion about its other claims, too.

Rhetorical Strategy No. 5 – Avoid Serious Reflection on Substantial Issues

I have in mind here the way the Faulkner/Smerconish book, while being about the desire of the Faulkner family to see the execution of an African-American man, avoids serious reflection either on the merits of the death penalty, or on the problem of structural racism.

Concerning the death penalty, there is no weighing of the arguments for capital punishment, not even a concern to cite the theorists who have developed some strong arguments for the death penalty.[9] Usually, in the context of the rhetoric summarized above, and with reference to Maureen Faulkner’s grief and pain, the book makes do with statements like this one from Faulkner on the penultimate page of her book: “I firmly believe that a person who knowingly and violently takes the life of another person, especially a police officer, should forfeit their own life” (300).

Mumia’s citation of Albert Camus on the problems with the death penalty in his Yale Law Journal essay is not even taken up by the authors. They just quote Abu-Jamal citing Camus and then plunge on to bemoan that he was given a chance to write for this Ivy-League publication (72). There is one place later in the book where the authors do pause to mention – though without citation – a “criminology study at Wayne State University ” that “emboldened” Michael Smerconish, by claiming that in the wake of an execution “there are fewer murders committed on the third day thereafter” (165). This rather bizarre fragment from an uncited source is taken as grounds for Smerconish’s “fervor and conviction” that the death penalty is a deterrent. In fact, law enforcement studies themselves question the deterrence value of the death penalty, especially for deterring the killing of police officers.[10]

The other issue that haunts the book and is never seriously reflected upon is racism and the criminal justice system. The writers tend to block serious reflection on this theme by accusing supporters of Abu-Jamal of “playing the race card” (73, 75, 156) or simply denying that the issue is relevant to this case (see pages 296-7 for original prosecutor Joe McGill’s position about recent charges of racism in jury selection). This is a most obvious evasion of issues with which a serious book would have to wrestle.

Nearly every reputable history of criminal justice and policing in Philadelphia , and of its economic and political life generally, has found it necessary to look at the effects of structural racism in city structures.[11] There exists, too, the studies that beginning in 1998 have found Philadelphia and Pennsylvania courts and review systems “rife with racism.”[12] Moreover, U.S. Third Circuit Court judges now weighing Abu-Jamal’s legal arguments are grappling with legal precedent’s long-established concern that racial bias not be operative at all in a legal proceeding.[13]

Given the confirmation we now have that the Philadelphia DA’s Office had used a video tape for training members of its Office in the “art” of reducing black representation on juries, and had done so near the time of Abu-Jamal’s prosecution,[14] Faulkner’s and Smerconish’s crude dismissal of the issue as “playing the race card” is yet another reinforcement of Philadelphia’s tradition of structural racism, and another severe failing of this book’s rhetorical strategy.

A Closing Image – “Convicts Waiting for Trial”

For a closing image I suggest a passage from Maureen Faulkner’s description of her experiences during PCRA Hearings in Philadelphia ’s new Criminal Justice Center. She and her partner, Paul Palkovic, traveled to the hearings one day, transported by a police van that delivered them and the family to the back of the courthouse, so that they might avoid the “lengthy line” of others trying to get in, the “huge backup of people” and the “hundreds of Abu-Jamal people trying to get into the courtroom” (144-5). She then says that as they disembarked from the van, “there was a busload of convicts waiting for trial next to us” (144).

Now, perhaps these “convicts waiting for trial” were previously convicted inmates being sent to trial for further deliberation on alleged new crimes. That, though, would be an all-too-charitable reading of the expression chosen by Faulkner here. It is more likely – and all evidence from Faulkner’s and Smerconish’s rhetoric in the book suggests this – that she is instead presuming that if one has been apprehended for trial , or is “waiting for trial,” one is already a “convict,” at least a bad person, not of  the “good people.” It is another assumption of ill repute that she projects on those who are not clearly part of the system that continues to serve her in so many ways.

In this same passage, Faulkner also says that the “convicts” “boisterously jeered as we solemnly walked in,” not bothering to tell readers how they would know to jeer at her and for what. It is enough that she is one who sees them jeering. She goes on to allege that “very angry pro-Abu-Jamal protestors” chased her and about ten others, including attorneys and two cops (145).

Her spirits were soothed that day only by “pleasant conversation” with Ed Rendell, who “has always been a strong supporter of mine.” Then Mayor Rendell arranged for her and Paul to make a trip to the top of City Hall where they enjoyed, as she puts it, “the pristine perfection of our temporary solitude – perched high atop the city where the madness raged below us” (146).

Clearly, as this book makes clear, Maureen Faulkner and her family have had the ups and downs suffered by nearly all victims of violent crimes, and she’s had still more highs and lows born of her relentless struggle alongside Philadelphia authorities to see Abu-Jamal executed. She also has had what many murder victims families have not had,[15] years of supportive police culture, police van escorting and mayoral sponsorship for visits to the high places (literally and metaphorically)of city government.

In spite of all this official support, Faulkner and Smerconish have not offered in this book a convincing discourse that seriously reflects upon what justice might be in the case of Mumia Abu-Jamal. Let us hope that the U.S. Third Circuit Court of Appeals, now considering Abu-Jamal’s case, can offer a more discerning wisdom.


[1] See, for example, Dave Lindorff, “Maureen Faulkner and Mumia: Vengeance Isn’t Sweet,” OpEdNews http://www.opednews.com/articles/opedne_dave_lin_071202_maureen_faulkner_and.htm (accessed December 13, 2007).

[2] For information on both of these matters, see the English manuscript of the German publication, Race Against Death: The Struggle for the Life and Freedom of Mumia Abu-Jamal, pages 200-202, and 219-22, respectively.

[3] “Book signing and rally to remember Danny Faulkner,” posted by Derek Bargeld on December 10, 2007 http://www.newsnet14.com/?p=7689&print=1 (accessed December 13, 2007).

[4] Peter F. Vaira, Philadelphia Inquirer, August 27, 1995, and “Trampling the Public Trust: Philadelphia Police Abuses Reveal Systemic Injustice, Action Update, October 1995 (Hyattsville, MD: Equal Justice USA, 1995), 3-5.

[5] Quoted in Dave Lindorff, “Maureen Faulkner and Mumia: Vengeance Isn’t Sweet,” see above footnote no. 1; and “Was Philadelphia Officer Daniel Faulkner ‘Murdered By Mumia?”, Journalists for Mumia web site,  http://www.abu-jamal-news.com/flyerMBM.pdf (accessed December 11, 2007).

[6] Educators for Mumia Abu Jamal web site, at http://www.emajonline.com. For the New York Times ad by educators in 2000, see http://www.jca.apc.org/mumia/source/NYTad.pdf (accessed December 13, 2007).

[7] Robert Justin Goldstein, Political Repression in Modern (Cambridge and New York: Schenkman Publishing Co., 1978), 523-9, and Schiffmann, 56-7.

[8] Journalists for Mumia, at http://www.abu-jamal-news.com/ , and Educators for Mumia, at http://www.emajonline.com/files/PressRelease.Polakoff.Photos.EMAJ.pdf .

[9] I do not believe the arguments of death penalty advocates hold good, but see Hugo Adam Bedau and Paul G. Cassell, Debating the Death Penalty: Should Have Capital Punishment. The Experts on Both Sides Make Their Case (New York: Oxford University Press, 2005).

[10] “Law Enforcement and the Death Penalty,” at The Death Penalty Information Center, http://www.deathpenaltyinfo.org/article.php?&did=1705#lawenforcement (accessed December 13, 2007).

[11] On histories about racism in Philadelphia, see Julie Winch, Philadelphia’s Black Elite: Activism, Accommodation and the Struggle for Autonomy, 1787-1848 (Philadelphia: Temple University Press, 1988), and Charles Banner-Haley To Do Good and To Do Well: Middle-Class Blacks and the Depression, Philadelphia, 1929-1941 (New York: Garland Publishing, Inc. 1993). Compare Samuel Bass Warner, The Private City : Philadelphia in Three Periods of Its Growth (Philadelphia: University of Pennsylvania Press, 1987).

[12] Robert Dunham, “Death Penalty and Race: Partners in Injustice,” CounterPunch, December 10, 2001 http://www.counterpunch.org/dunham1.html (accessed December 11, 2007).

[13] A summary of the legal precedent for considering racism in legal proceedings is eloquently summarized by Christina Swarns in the NAACP Amicus Brief for Abu-Jamal’s appearance before the U.S. Third Circuit Court, at http://www.naacpldf.org/content/pdf/jury/Abu-Jamal_v_Horn_amicus_brief.pdf (accessed December 13, 2007).

[14] Dunham, see above footnote, no. 10.

[15] For other life-journeys by family members who have lost loved ones to murder, see the web site at Murder Victims Families for Reconciliation at http://ww[15] See, for example, Dave Lindorff, “Maureen Faulkner and Mumia: Vengeance Isn’t Sweet,” OpEdNews http://www.opednews.com/articles/opedne_dave_lin_071202_maureen_faulkner_and.htm (accessed December 13, 2007).

[15] For information on both of these matters, see the English manuscript of the German publication, Race Against Death: The Struggle for the Life and Freedom of Mumia Abu-Jamal, pages 200-202, and 219-22, respectively.

[15] “Book signing and rally to remember Danny Faulkner,” posted by Derek Bargeld on December 10, 2007 http://www.newsnet14.com/?p=7689&print=1 (accessed December 13, 2007).

[15] Peter F. Vaira, Philadelphia Inquirer, August 27, 1995, and “Trampling the Public Trust: Philadelphia Police Abuses Reveal Systemic Injustice, Action Update, October 1995 (Hyattsville, MD: Equal Justice USA, 1995), 3-5.<

Page 1 of 3123
Visit Us On TwitterVisit Us On FacebookVisit Us On Google Plus