Anatomy of a Racist Frame-Up
The Case of Mumia Abu-Jamal
2. How the Frame-Up was Organized
It is well established in academic literature on the application of the death penalty in the U.S. that the race of both the defendant and the victim plays a major role.(21) A black person (at least one with less money then O.J. Simpson) normally has little chance of being acquitted of a crime if the victim is white. When the victim is a cop, conviction is virtually certain. Jamals case illustrates how the judicial system operates to ensure that the jury delivers the right verdict.
A critical element in every trial is the selection of the judge. When the case was assigned to Philadelphias King of Death Row, Albert F. Sabo, the result was predetermined. Amnesty International reports:
Albert Sabo was an Undersheriff of Philadelphia County for 16 years before becoming a judge in 1974. His official biography lists him as a former member of the National Sheriffs Association, retired Fraternal Order of Police (FOP) and as associated with the Police Chiefs Association of South East Pennsylvania. As a judge he was no stranger to the death penalty. Over a period of 14 years, he presided over trials in which 31 defendants were sentenced to death, more than any other US judge as far as Amnesty International is aware. Of the 31 condemned defendants, 29 came from ethnic minorities.
Not only did Sabo hold the record for the most people sentenced to death by any American judge, he is also thought to have had the highest percentage of capital convictions reversed on appeal.(23)
In August 2001 Mumias lawyers released a statement by Terri Maurer-Carter, an official court stenographer in the Court of Common Pleas, who reported that in 1982 at the time of the trial, she heard Sabo remark, in reference to Mumia, Yeah, and Im going to help them fry the nigger. So much for the supposed constitutional guarantee of a fair trial! Sabos behavior throughout the proceedings was entirely consistent with his racist declaration of intent to help the prosecution send Mumia to his death for a crime he did not commit. After keeping her mouth shut for two decades, Maurer-Carter, in an act of conscience, finally came forward.(24)
The second element in railroading Mumia was to hobble any effective defense. Anthony Jackson was approached by some of Mumias friends about the case and was subsequently appointed by the court as his lawyer. Jackson may have initially taken this high-profile case with good intentions. As director of the Public Interest Law Center of Philadelphia (PILCOP) he had earned a reputation as an effective opponent of police brutality, but he was entirely unqualified for such a politically-charged case.
While the prosecution had virtually unlimited funds to pursue a conviction (police interviewed some 100 witnesses in the case) the defense had next to nothing. Philadelphia, like most big American cities, encourages its judges to be stingy when doling out public funds for indigent defendants to conduct investigations or hire expert witnesses. On 18 March 1982, in a pre-trial hearing before Judge Paul Ribner, Jackson complained that $150 was not enough to hire an investigator or forensic pathologist, and requested additional funds.(25) Ribner advised Jackson to somehow pay for the experts and then seek reimbursement from the trial judge. As Ribner explained, under capitalism justice is a commodity, and everyone is only entitled to as much as they can afford:
This left Jackson with little recourse but to handle Mumias defense without any effective assistance. A bit later Ribner cynically suggested that perhaps Mumia could find help in California:
What Jackson failed to do, that a competent attorney would have, was to present Ribner with a specific motion, backed up by a declaration estimating the cost of the time and expenses for a ballistics expert to review the evidence. Making such a request would have increased the likelihood of getting the money, and failing that, provided the necessary groundwork for a successful appeal on this point.
Jackson subsequently asked for another attorney to be assigned to assist him with this complicated case, but this request was also denied. He had no paralegals and only a part-time secretary to assist him.(27) Without an investigator, a ballistics expert, a pathologist or even a legal assistant, Jackson could not possibly have mounted an effective defense, even if he had not been distracted by his attempts to open an office and launch a private law practice. During the trial itself, Jackson was further distracted by threats against himself and his son made by unknown persons.(28)
Mumia, who was somewhat familiar with the operation of the judicial system after observing the MOVE 9 trial a year earlier, had gradually lost confidence in Jackson. On 13 May 1982, a few weeks before the pre-trial hearings were scheduled to begin, Mumia decided that he would be better off representing himself. Judge Ribner was reluctant to reject Mumias motion outright, as the Sixth Amendment to the U.S. Constitution supposedly guarantees the right to self-representation. But he refused Jacksons request to be released from the case, and ordered him to remain in the ambiguous capacity of backup counsel. From this point on Jackson, by his own admission, didnt do anything to prepare for trial.(29) When he first appeared before Sabo, Jackson again asked to be taken off the case:
I feel uncomfortable in this position being backup counsel. I figured, number one, because [of] my legal training I could probably be a better lawyer than Mr. Jamal; at the same time, I recognize Mr. Jamals right to self-representation and his choice of his own counsel. I understand what the law says. I dont want to be in a position of interfering with his right or in his selection of counsel. It puts me in an unenviable position of being forced to do something that, number one, I dont feel qualified and comfortable to do and, number two, its not being accepted by Mr. Jamal.(30)
Sabo turned Jackson down this time, and on several subsequent occasions. He also rejected Mumias request to have MOVE leader John Africa assist him at the defense table. Mumia had witnessed Africas successful defense of himself in a 1981 trial on weapons charges when the MOVE leader instructed his court-appointed attorneys not to raise any objections, and then made an hour-long closing summation to the jury. Four days later, the jury acquitted the defendants on all charges. Sabo and McGill were not going to risk a repetition:
This request [for John Africas participation] was permissible under Pennsylvania law but was denied by Judge Sabo. When pressed by Abu-Jamal, who gave examples of other judges who had allowed non-lawyers to sit at the table of defendants, Judge Sabo stated that unless there was a legal precedent, he did not care what other judges did, and continued to refuse the request.(31)
Early on in the jury selection process, Sabo stripped Mumia of his pro se statusi.e., his right to represent himselfand forced the unprepared Jackson to take over the defense. Sabo claimed that this action was taken without prejudice, but, as Mumia observed, Sabos obvious motive was to make it easier to secure a conviction. The report by Amnesty International concluded that there was no legitimate reason to revoke Mumias constitutional right to defend himself:
On the first day of his trial Mumia complained, This is not a fair trial. I havent had the counsel of my choice.(32) Sabo brushed aside his objections.
Jackson made no opening remarks, thus ceding round one to the state. After this performance, when Mumia used most of the second day to protest Sabos refusal to let him defend himself, he was removed from the courtroom. When two of Mumias brothers, Wayne and Billy, protested this outrage, Sabo threw them in jail for 60 days. Every time Mumia attempted to assert his rights, he was removed from the courtroom and as a result he was present for only half his trial. As Mumias 1995 petition for Post-Conviction Relief (PCRA) hearings later pointed out, Mr. Jamals absence from huge segments of the trial could only have tarnished the jurys view of Mr. Jamal.(33)
Jacksons failure to do any preparation during the most critical period (i.e., the month prior to the opening of the trial) practically guaranteed a conviction. Although Jackson called only three witnesses, he did not even bother to interview a single one of them prior to putting them on the stand. This can only be characterized as gross incompetence.(34) While Jackson had a good reputation in the black community for effectively litigating cases involving police brutality during his time at PILCOP, he clearly resented being saddled with Mumias case. But Sabo had no intention of allowing Jackson to withdraw. As far as the hanging judge was concerned, Mumia had the defense he deserved.(35) Jackson had to be aware, given the way the legal system operates, that winning such a high-profile case would very likely destroy his career. No judge would appoint him to subsequent cases, and the prosecutors could have simply refused to give him fair plea bargains, thus forcing him to try every case, thereby ensuring much harsher penalties for any of his clients who were convicted. Before long he would have a reputation as a bad lawyer who could not even negotiate reduced sentences.
Jackson did make the useful observation that in his experience the Philadelphia District Attorneys (DA) office made a practice of routinely peremptorily eliminating black jurors. A total of 43 people, including 15 blacks, were interviewed during the jury selection process. The prosecution used its peremptory challenges to reject 15 potential jurors, 11 of whom were black. An expert statistician, Professor Eugene P. Ericksen of Temple University, reviewed the data and observed, it is highly improbable that the prosecutions use of peremptory challenges to excuse Black venirepersons from Petitioner Jamals jury was unrelated to their race.(36)
Evidence recently surfaced which proves that Philadelphia prosecutors were systematically trained to eliminate blacks from juries. In the early 1980s the video production department of the District Attorneys officeDATVeven produced a training video in which Jack McMahon, a senior prosecutor, instructed new attorneys on picking a good jury:
One year after the Batson ruling [in 1986 the U.S. Supreme Court had ruled in Batson v. Kentucky that the process of selecting jurors must be race neutral], the Assistant District Attorney for Philadelphia made a training videotape for the citys prosecutors. On the video, he describes how to select a jury more likely to convict, including the removal of potential black jurors:
Lets face it, the blacks from the low-income areas are less likely to convict. Theres a resentment to law enforcement... You dont want those guys on your jury... If you get a white teacher in a black school whos sick of these guys, that may be the one to accept.
The video also instructed the trainee prosecutors on how to hide the racial motivation for the rejection of prospective jurors in order to avoid successful claims of racial discrimination from defense lawyers. The tape did not become public until 1997.(37)
To conserve peremptory strikes, prosecutors were also trained to rigorously Witherspoon(38) prospective jurorsdisqualifying those who oppose the death penalty, as many American blacks do.
While the prosecutors worked hard to keep anyone suspected of being sympathetic to Mumia off the jury, Jackson gave a free pass to several jurors who were almost certain to favor the prosecution:
Juror number 11 was the close friend of a police officer who had been shot while on duty. While being questioned, he openly admitted that this experience could mean he was unable to be a fair juror because of his feelings concerning his friend. Juror number 15 (an alternate) was the wife of a serving police officer. Jackson allowed both onto the jury without objection.(39)
Jury-rigging didnt end with the voir dire. Early in the proceedings Sabo refused to permit Jennie Dawley, one of only three blacks on the jury, to take her sick cat to the vet. When Dawley broke sequestration to save her pet, Sabo replaced her with a white juror, Edward Courchain, who, when asked during jury selection whether he could be objective in this matter, responded No and went on to state, I dont think I could be fair to both sides. Jackson had asked that he be removed, but Sabo seated him anyway.(40) Later in the trial, when a white male juror wanted to write a civil service test, Sabo suspended proceedings for half a day to allow him to do so. This made it clear that, in Sabos courtroom, jurors presumed to favor the prosecution received preferential treatment.
(21) A report entitled Racial Prejudices under the Death Penalty Facts section of Amnesty Internationals website states:
In a 1990 report, the non-partisan US General Accounting Office found a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty. The study concluded that a defendant was several times more likely to be sentenced to death if the murder victim was white. This confirms the findings of many other studies that, holding all other factors constant, the single most reliable predictor of whether someone will be sentenced to death is the race of the victim.
(22) Amnesty International, February 2000, pp 6, 7
(23) Motion for Recusal of the Honorable Albert F. Sabo, filed 5 June 1995 (reprinted in Leonard Weinglass, p 260)
K. Even more compelling is the record number of reversals of capital cases tried before Judge Sabo. According to the prestigious Pennsylvania Capital Resource Center in Philadelphia, a total of 11 cases presided over by Judge Sabo have had [sic] been partially or totally reversed on appeal .No other judge sitting in Pennsylvania has had an equivalent percentage of capital cases he/she presided over reversed; and, on information and belief, no other judge in the United States as well.
(24) See Appendix No. 6
(25) Pre-trial transcript, 18 March 1982, pp 6-7. Jackson appealed to Ribner:
(26) Ibid., pp 9-10
(27) Transcript of Mumias PCRA hearing 31 July 1995, pp 89-91
(28) Trial transcript, 2 July 1982, pp 3-4:
(29) In the PCRA hearing of 28 July 1995 (pp 60-61) the following exchange took place:
(30) Trial transcript, 17 June 1982, pp 1.64-65
(31) Amnesty International, February 2000, p 10
(32) Trial transcript, 17 June 1982, p 1.48
(33) Weinglass, p 89. PCRA hearings are post-conviction hearings in which the judge who heard the case has an opportunity to review the verdict in light of information that may not have been available at the time of the trial which might indicate that a conviction was mistaken, or that the defendants constitutional rights were violated resulting in an unfair trial. The PCRA hearing is important, even when judicial prejudice makes the result a forgone conclusion, because it is the last time the defense has the right to introduce new evidence into the record. Post-conviction relief proceedings must be initiated by the convicted person filing a petition.
(34) In point 113 of the Petition for Post-Conviction Relief and/or Writ of Habeas Corpus, filed 3 July 2001, Mumias lawyers commented:
(35) While adamantly denying Mumia his constitutional right to defend himself, Sabo appeared concerned that he might be creating grounds for a successful appeal, and at various points encouraged Mumia to take part in the kangaroo court proceedings. On the second day of the trial (18 June 1982) Sabo warned him that non-participation risked Waiving his constitutional right which could be lost forever (p 2.77). Mumia responded (p 2.81-2):
(36) Prof. Eugene P. Ericksen affidavit, 13 September 2001. Ericksen also made the following observation:
If the prosecutions striking of potential jurors were race-neutral, i.e. done without reference to the persons race, the probability that 11 or more of the challenged jurors would be Black is extremely small. I have calculated that probability to be 0.0194% or 1 out of 5,155.
(37) Amnesty International, February 2000, p 14. The District Attorney (DA) at the time was Ronald D. Castille and his name, along with the official seal of the City of Philadelphia, appears in the videotapes first frame. In 2000 the Pennsylvania Supreme Court condemned the video for recommending practices which flaunt constitutional principles in a highly flagrant manner (Commonwealth v Basemore, 560 Pa 258, 744 A2d 717, 731, n. 12 ). Yet Castille, who as DA had been responsible for it, refused to recuse himself from Mumias appeals.
(38) The term derives from the case of Witherspoon vs. Illinois.
(39) Amnesty International, February 2000, p 14
(40) Ibid. On the preceding page the same report noted:
Posted: 11 December 2006