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Senator Calls Winning Constitutional Case on the Death Penalty ‘Undermining Justice’

Pandering to the Fraternal Order of Police

by DAVE LINDORFF

Pennsylvania Senator Republican Pat Toomey last week went before the whole US Senate to oppose the nomination by President Obama of Debo Adegbile, former head of the litigation department of the NAACP Legal Defense Fund, to head the Justice Department’s Civil Rights Division. In his speech, Toomey tried to argue that Adegbile is unfit for the job because he supervised the Legal Defense Fund’s role in helping with the appeal in federal court of the death sentence of Philadelphia journalist Mumia Abu-Jamal — an appeal that ended up vacating that sentence, and that was left standing by the US Supreme Court.

Toomey’s position — that Adegbile had “undermined the justice system” by filing that appeal claiming that Abu-Jamal’s death sentence had been unconstitutional — is ludicrous on its face. For one thing, the actual argument that led to the vacating of the death sentence was developed and presented in court by attorney Judith Ritter as lead counsel. She is not affiliated with the Legal Defense Fund. Furthermore, given that the appeal was successful in federal court, and then upheld on appeal by a three-judge panel of the Third Circuit Court of Appeals, and given that the US Supreme Court, asked to reverse that ruling by Philadelphia’s District Attorney and the Pennsylvania Attorney General, refused to hear the case, thereby affirming it — to say that Adegbile, whatever role he played in the case, had somehow “undermined justice” is the same as saying that a Federal District Judge, an Appellate Court panel, and the Supreme Court all “undermined justice.”

That’s a pretty heavy indictment, even for a self-styled “Tea Party” senator!

But Pennsylvania’s junior senator didn’t stop there.

In his determined effort to pander to the wishes of Pennsylvania’s politically powerful police union, the Fraternal Order of Police, which has for years been pushing for Abu-Jamal’s execution following his 1982 conviction for the murder of white Philadelphia Police Officer Daniel Faulkner, and continues to fume now that he is now “just” serving a sentence of life without chance of parole, Toomey recited many of the same tired falsehoods trotted out regularly by the FOP. He said that the 1982 trial of Abu-Jamal had “conclusively proved” that he had ruthlessly shot Officer Faulkner, first shooting the officer in the back and then standing over the “prone and helpless” officer as he lay on the ground and “pumping four more bullets into him and one in the face which killed him.”

The truth is that only one of the four bullets fired at Faulkner hit him, and the scenario presented to the jury by the prosecution in the case — namely that Abu-Jamal stood astride the fallen officer and fired point-blank downward at him — could not have happened, since investigators found no bullet marks on the sidewalk around the spot where Faulkner was lying and there were no bullet marks in Faulkner’s body, except for the fatal shot to the head.

Try and make that trick work.

Since the four-shot scenario was based upon the testimony of the prosecution’s alleged “eye-witnesses,” and since what they testified to could not have happened, the whole prosecution scenario must be viewed with extreme skepticism.

But it gets worse. Those four “eye witnesses” turn out not to be so reliable. One, Michael Scanlan, could not identify Abu-Jamal, and actually described the shooter as having an afro, while Abu-Jamal wore dreadlocks. Another, Albert Magilton, was in fact not even an “eye” witness at all, but only said he had “heard shots.”

The most important two “witnesses,” a white cab-driver named Robert Chobert, and a prostitute named Cynthia White, were almost certainly not telling the truth, and were likely coached by the prosecution and/or the police.

Let’s start with Chobert. He testified that he had parked his car directly behind Faulkner’s squad car, which itself was behind the VW Beetle he had stopped, which belonged to Abu-Jamal’s brother Billy Cook, whom Faulkner was ticketing and arresting at the time of the shooting incident. Chobert claimed at trial to have witnessed the shooting from his seat behind the wheel of his cab. The problem with that is that the shooting occurred on the sidewalk by the curb in front of the VW. This means that for Chobert to have “witnessed” it, he would have had to be looking, in the 4 am darkness, through a police cruiser with its dome lights flashing, and through a VW Beetle sedan. And remember, Faulkner was said to have been lying on the sidewalk, with Abu-Jamal leaning over him, so the whole action would have been down behind the body of the cars. Not an easy thing to “witness” for anyone without X-ray vision.

Meanwhile, no one else testified to having even seen a taxi cab in that location except for Cynthia White, who claimed, improbably, to have been standing on the sidewalk at the corner near where the cab would have been, watching the shooting (no witness placed White at the scene). Furthermore, although there are myriad photographs taken of the crime scene by police and by freelance press photographers — some snapped from a very early point in the investigation while it is still dark — there is not one photograph showing Chobert’s taxi cab parked behind Faulkner’s squad car, where he testified he was parked.

It is very unlikely that Chobert did actually park his car there. Why? Because, unknown to the jury, Chobert at the time of that incident was driving his taxi on a license that had been suspended for a DWI conviction. Even the prosecutor knew that was a big deal, and alerted the court, but the judge, Albert Sabo, a former Sheriff and well known to be a friend or the prosecution, ruled that the information was not germaine to Chobert’s veracity as a witness and kept the information out of court). Moreover, also not known to the jury (because, once again, the trial judge ruled that it was irrelevant to his credibility), Chobert was currently on probation on a five-year sentence for conviction of arson for hire (he had tossed a molotov cocktail bomb into a grammar school for pay). Does anyone honestly believe that such a person, on probation and driving illegally, have deliberately pulled up his taxi and parked behind a police car?

Because Chobert’s crimes were withheld from the jury, the prosecutor in his closing argument was able to actually say to the jury:
“…The kernel of his believability, the trust that you can have in an individual when he talks as he did I would not criticize that man one bit. Ladies and gentlemen, he knows what he saw and I don’t care what you say or what anybody says, that is what he saw. Do you think anybody could get him to say anything that wasn’t the truth?”
Would that have gone over like it clearly did, had the jury been informed, as it should have been, of Chobert’s crimes, and the pressure he must have been under to be a “good” prosecution witness? We cannot know, because the prosecutor was allowed to get away with the deception, thanks to a criminally biased judge.

The prosecutor in the case was also guilty of misconduct — because it became known later that Chobert had asked him, before testifying at the trial, if the prosecutor could “fix” his suspended license. Even if the prosecutor never did “fix” that license suspension, the mere fact that the witness thought that it might be possible in return for supportive testimony should have been brought to the attention of judge and jury. Prosecutor Joseph McGill never mentioned that request to the defense or the judge, nor was he challenged about it years later, after Chobert testified about it at a 1995 post-conviction hearing (held before the same trial judge, Albert Sabo).

Furthermore, in two drawings of the scene of the crime — one apparently in White’s own hand, and a second professionally done by police investigators in accordance with her direction (both published as illustrations in my book on the case, Killing Time: An Investigation into the Death Penalty Case of Mumia Abu-Jamal (Common Courage Press, 2003) — she does not depict Chobert’s taxi, though she does draw and mention a Ford Sedan that was not at all involved in the incident, and which was parked in front of the VW, and is evident in police photos of the scene.

As for White herself, many have also questioned whether a prostitute with many arrests and who was well known to police would have been standing on the sidewalk near a parked police car at all, much less when gunfire erupted. Even if she had been hanging out there initially, it is most likely she would have departed the scene immediately as Faulkner pulled his car to the curb. In any event, her story changed multiple times as, over the course of months during investigations before the trial, she was repeatedly picked up by police on prostitution charges and then brought in to the homicide division to be questioned and requestioned. Each time, her “recollection” of the incident changed, always moving closer and closer to the scenario that the prosecution ultimately presented to the jury.

Initially White was not even treated by police investigators as an important witness. Other witnesses at the scene were immediately brought over to the police van where a seriously injured and internally bleeding Abu-Jamal was being left untended for half an hour, and asked if they could identify him. She never was. Later, the prosecution assured an arraignment judge that she would not be an “identification” witness, though at trial, six months later, she was asked to point Ab-Jamal out in the courtroom as though she would know him from the incident (his face had been in the papers and on the news for months preceding the trial by that time, making that courtroom ID process a farce).

Finally, Sen. Toomey in his Senate speech, makes much of the claim — made at the trial with great fanfare — that Abu-Jamal had “bragged” about having shot Faulkner and that he said he “hoped the MF-er would die,” as he was brought into the same hospital himself by police for treatment of a bullet wound to the chest.

What Toomey didn’t say was the reality that this supposedly “shouted out” confession was reported to police investigators by nobody, including none of the officers who dragged him into the hospital ER (beating him along the way), either that day, or in subsequent days or weeks. Nor was it heard by the doctors who were only feet away working on Faulkner. Only two months later, at a meeting of police and prosecutor, did several officers claim they suddenly “remembered” the confession. (The other person said to have heard the “confession” was a hospital security guard, but she didn’t mention it to police either at the time — only months later.)

Most significantly, the police officer assigned to guard Abu-Jamal during his time in the ER and in his hospital room following surgery, Gary Wakshul, wrote in his official report on that day that during the course of all his time with Abu-Jamal, which began with the suspect’s arrival at the hospital, “the negro male made no comments.”

Near the end of Abu-Jamal’s trial, the defense tried to have Wakshul brought in and put on the stand to explain the contradiction between his signed statement that there had been “no comments” from his charge and the belated claim by other police and the hospital guard that Abu-Jamal had shouted out a confession. But the prosecution claimed he was away “on vacation,” and the judge, saying he was unwilling to delay the trial, sent the case to the jury for deliberation with the damaging “confession” testimony left unchallenged. It turns out that Wakshul was actually at home waiting to be called to testify, and that the prosecutor had simply lied to the court. We know this because Wakshul later said he had been “ordered” to say home and to be on call during his vacation until the trial had ended. That instruction would, of course, have come from the District Attorney’s office, and almost certainly from prosecutor McGill himself.

Toomey, for his pathetic performance in the Senate well, has earned the monicker “Senator Pander.”

The bottom line, which Senator Pander surely ought to know, is that whether or not Abu-Jamal is guilty, Debo Adegbile did exactly what a lawyer should do. Asked to help right a constitutional wrong, he had the NAACP Legal Defense Fund assist in the appeal of Abu-Jamal’s death sentence, which a federal judge had already ruled to be unconstitutional. Adegbile and his legal team did their duty, fighting an appeal by the state to the Third Circuit, which upheld the lower court’s ruling, and then on to the Supreme Court, which by refusing to accept the state’s appeal, endorsed the Third Circuit, meaning that its decision that Abu-Jamal had been unconstitutionally sentenced to death because of a flawed jury ballot form and confusing instructions from the trial judge was confirmed beyond any dispute.

Senator Pander should know that if the American justice system is to be truly just, it must be just and constitutionally applied to all people — even those convicted of murder. That’s why death sentences have to be voted on by juries following an entirely separate hearing, with a separate presentation of evidence and arguments.

But Senator Pander should also know that this particular trial wasn’t just unconstitutional in its sentencing. Far from a “convincing” case, as he claimed, it was an atrocity of justice from the get-go.

Myself, I don’t know what happened on the early morning of Dec. 9, 1981. But neither does anyone else, including the FOP and Sen. Toomey. This is because, among other things, the investigation of the case was so poorly done (police didn’t even do a wipe test of Abu-Jamal’s hands to see if he had recently fired a gun, or if they did, they didn’t like the result and pretended not to have done that test — a basic step in any murder-by-gun case), because there were so many cases of obvious witness tampering and coaching by the prosecution, and of outright lying by witnesses, and because there was such evident bias on the part of the judge, that in the end it is impossible to say Abu-Jamal was a murderer, or even that he was the shooter of Officer Faulkner.

Dave Lindorff is a founding member of ThisCantBeHappening!, an online newspaper collective, and is a contributor to Hopeless: Barack Obama and the Politics of Illusion (AK Press).