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NEW RADIO INTERVIEW: Is Honoring Mumia a Crime?
Telephone interview with Peter J. Wirs (Chairman of Philadelphia's 59th Republican Ward Executive Committee) about the new criminal charges filed against two French cities supporting journalist and death-row prisoner Mumia Abu-Jamal.
Listen now:
RADIO INTERVIEW: Is Honoring Mumia Abu-Jamal A Crime?
Telephone interview with Peter J. Wirs (Chairman of Philadelphia's 59th Republican Ward Executive Committee) about the new criminal charges filed against two French cities supporting journalist and death-row prisoner Mumia Abu-Jamal.
by Hans Bennett
PETER J. WIRS INTERVIEW, LINK TO:
15 minute version:
http://hbjournalist1.googlepages.com/wirs15.mp3
6 minute version:
http://hbjournalist1.googlepages.com/wirs6.mp3
2 minute version:
http://hbjournalist1.googlepages.com/wirs2.mp3
Because the audio is an edited version (to be listener and download friendly) of the interview, the full-length transcript is included below so readers can read more and see the overall context to the questions. In doing the audio editing, I made my best attempt to accurately portray the interview.
Is it a crime to publicly honor the controversial black death-row prisoner and journalist Mumia Abu-Jamal (convicted of killing white Philadelphia police officer Daniel Faulkner in a 1982 trial that Amnesty International has declared a "violation of minimum international standards that govern fair trial procedures and the use of the death penalty")? Future Philadelphia mayoral candidate Peter J. Wirs thinks so.
https://www.59thgopward.com/all_candidates.asp#mayor
Acting as the Chairman of Philadelphia's 59th Republican Ward Executive Committee, Wirs has filed criminal charges against the French cities of Paris and Saint Denis. Their crime?
In 2003 Abu-Jamal was declared an honorary citizen of Paris—the first time since Pablo Picasso was similarly honored in the 1970s. This April, the French city of St. Denis (a Paris suburb) named a major street after him. Rue Mumia Abu-Jamal leads directly to the largest sports arena in Europe: “Nelson Mandela Stadium.”
Wirs and the GOP ward committee allege that these public honors "glorify" a "cop-killer" and therefore violate French Penal Code, Article 24 § 2 (L. 29 juillet 1881), prohibiting “the glorified perpetration of a crime [whose elements include] the voluntary trespass to another person's life or physical integrity ...”
The committee's press release explains the following:
http://www.politicspa.com/pressreleasedetailed.asp?id=7501
“Wirs, a twice-elected state constable who specialized in civil rights investigations, said that his exhaustive examination of court records confirms what U.S. District Court Judge William Yohn also found; that Abu-Jamal received a fair trial despite his own ‘obstreperous conduct’ that hogtied his defense counsel’s representation, and that alleged post-mortem eyewitness recantations and inadvertent forensic deficiencies cannot overcome the sheer weight of circumstantial evidence, that only a Charter Arms .38 caliber revolver killed Officer Faulkner, being one of two firearms found at the crime scene, purchased by and registered to Abu-Jamal; the other being the fallen police officer’s service weapon; coupled with Abu-Jamal’s knowingly self-avowed confession that ‘I shot the motherfucker, and I hope the motherfucker dies’ heard twice by Thomas Jefferson University Hospital security personnel where Abu-Jamal was being treated after his arrest.”
“Abu-Jamal’s supporters seize on the Philadelphia Police Department’s admission they failed to test Abu-Jamal for gunshot powder, now a common test to verify one discharged a firearm; and because the bullet recovered from Faulkner suffered too much mutilation, it could not be conclusively matched with any specific Charter Arms revolver. Such contentions, Wirs asserts, does not mitigate the fact that the bullet specimen had eight lands and grooves with a right hand direction of twist consistent with a Charter Arms revolver; and that Abu-Jamal’s Charter Arms revolver was found next to him which contained five ‘Plus-P’ high-velocity spent bullet shell casings.”
Read local article: http://www.theeveningbulletin.com/site/news.cfm?newsid=17470746&BRD=2737&PAG=461&dept_id=576361&rfi=6
Calling Abu-Jamal a “punk,” Chairman Wirs proclaims that “Abu-Jamal’s gratuitous exploitation of genuine international opposition to the death penalty should be exposed for the 'snake-oil’ scam that it is.”
Wirs and the Committee's criminal charges coincide with two key events. First, Abu-Jamal's newest appeal has now gone through four rounds of reply briefs during the last year and now public oral arguments should begin before the end of the winter in early 2007.
Second, this December 9 will mark the 25th anniversary of Abu-Jamal's arrest and police officer Daniel Faulkner's death. Abu-Jamal's supporters are organizing a mass demonstration at Philadelphia's City Hall on December 9. (see announcement): http://www.freemumia.com/25dec9.html
Peter Wirs has said that advocates of Abu-Jamal's conviction may also be organizing their own event that day a few blocks from City Hall at 13th and Locust: the scene of the crime that December 9, 1981 morning, but it is still undecided.
Mumia Abu-Jamal's Current Appeal
In December, 2001 Federal District Court Judge William Yohn affirmed Abu-Jamal's guilt but overturned the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn ruled that sentencing forms used by jurors and Judge Sabo's instructions to the jury were confusing. Subsequently, jurors mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to be considered as weighing against a death sentence.
Mumia's case is now in the federal Third Circuit Court of Appeals. DA Lynne Abraham is appealing the death penalty ruling while Mumia is appealing the guilty verdict.
If the penalty ruling is overturned, a new execution date will be set for Mumia. If his ruling is upheld, the DA can still impanel a new jury to rehear the penalty phase, which could then sentence Mumia to death—regardless of the 3rd Circuit ruling.
Because the DA appealed Yohn's death penalty decision, Mumia has never left death row, and is still unable to have such “privileges” as full-contact visits with his family.
In December, 2005, the 3rd Circuit announced the beginning of deliberations and shocked many by agreeing to consider two claims not “certified for appeal” by Yohn in 2001.
Abu-Jamal's attorney Robert R. Bryan declared it to be “the most important decision affecting my client since his 1981 arrest, for it was the first time there was a ruling that could lead to a new trial and his freedom.” The courts are now considering the following four issues:
#1. Whether the penalty phase of the 1982 trial violated the legal precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling. This issue was Yohn's grounds for overturning the death sentence and is now being appealed by the DA.
#2. “Certified for appeal” by Yohn in 2001, the Batson claim, addresses the prosecution's use of peremptory challenges to exclude blacks from Abu-Jamal's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a defendant deserves a new trial if it can be proved that jurors were excluded on the grounds of race.
At trial, Prosecutor McGill used 11 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia is 44% black, Abu-Jamal's jury was composed of ten whites and only two blacks. From 1977-1986 when current Pennsylvania governor Ed Rendell was Philadelphia's District Attorney, the evidence of racism is striking: from 1977-86, the Philadelphia DA struck 58% of black jurors, but only 22% of white jurors.
#3. The legality of McGill's statement to the jury minimizing the seriousness of a verdict of guilt: “if you find the Defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.”
In 1986 the Pennsylvania Supreme Court ruled against McGill in another case (Commonwealth v. Baker) on the same grounds. When Abu-Jamal addressed this same issue in his 1989 appeal with the State Supreme Court, the court reversed its decision on the legality of such a statement—ruling against the claim for a mistrial.
One year later, in the very next case involving this issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored the precedent. However, this would not affect the ruling against Mumia, because the court ruled that this precedent would only apply in “future trials.”
#4. The fairness of the 1995-97 Post Conviction Relief Act (PCRA) hearings when the retired, 74-year-old Judge Sabo was called back specifically for the hearing.
During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that the “behavior of the judge in the case was disturbing the first time around—and in hearings last week he did not give the impression to those in the courtroom of fair mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case.”
Concluding the PCRA hearing, Sabo rejected all evidence and every witness presented by the defense as not being credible. Therefore, Sabo upheld all of the facts and procedures of the original 1982 trial as being correct.
Is it a Crime to Honor Mumia Abu-Jamal?
Is it a crime to honor black journalist and death-row prisoner Mumia Abu-Jamal? Was the 1982 trial fair enough (as Peter J. Wirs argues) that Abu-Jamal is undeserving of a new trial? I have made an attempt to fairly show both sides of the debate so that readers can make their own decision about this controversial case.
This interview transcript is meant to promote my upcoming article where I also have interviewed Philadelphia journalists Linn Washington and David Lindorff about the criminal lawsuit and the fairness of the 1982 trial. I have attempted to interview Michael Smerconish (local journalist and longtime-advocate of Abu-Jamal's execution) for this upcoming article, but he has not yet returned my telephone call.
I will be submitting the upcoming article to the 4 big local newspapers in Philadelphia: The Philadelphia Inquirer, Daily News, Philadelphia Weekly, and City Paper in my effort to present an article to the public that is both fair and balanced: accurately presenting both sides of the debate so that the readers can decide for themselves what to think.
FULL TRANSCRIPT OF INTERVIEW WITH PETER J. WIRS, CHAIRMAN OF PHILADELPHIA'S 59TH REPUBLICAN WARD EXECUTIVE COMMITTEE
Telephone interview Sunday, November 19, 2006
Hans Bennett: What exactly is the 59th Republican Ward Executive Committee?
Peter J. Wirs: It is part of the Republican Party in Philadelphia.
Hans: Is your suit independent of the city government?
Peter: The Republican Party has nothing to do with the government
Hans: Will you be traveling with a Philadelphia delegation to France at the end of the month?
Peter: No, I've only said before that we were contemplating traveling. No firm plans have been made, and since then some addition elements have materialized that I'm not at liberty to discuss on the record at this moment.
Hans: Are you organizing an event for December 9th.
Peter: No, because of materializing developments I'm not at liberty to state on the record
Hans: I've spoken with a couple of Mumia's supporters who feel that the trial was unfair and I wanted to give you a chance to respond to what they said.
Peter: Alright
Hans: One thing they talked about was Mumia's [alleged] hospital confession. I was wondering what you what you thought about the witnesses reporting the confession two months later. Does that in any way challenge their credibility?
Peter: No
Hans: Why not?
Peter: Let me explain why I'm involved in this. I'm a former twice elected state constable out of the city of Harrisburg. My expertise, my law enforcement career is in civil rights investigation.
The US District Court of the Middle District of Pennsylvania and subsequently the Third Circuit appointed me under the Criminal Justice Act to conduct what became the largest prosecution investigation in the history of the federal courts in Pennsylvania
I am furthermore a 2 time elected board member of the south central chapter of the ACLU. I have great expertise and experience in conducting civil rights investigations--particularly in regard to prosecution and judicial misconduct. That's one of the reasons a lot of people have asked me to be involved in this.
When you look at the trial, (and i have examined the trial record extensively, and thoroughly, and comprehensively) of course there were instances where the system did not perform at an optimal level of perfection, but as was well noted by the Supreme Court, no one is entitled to a perfect trial, they're simply entitled to a fair trial. And in this instance, Judge Sabo (not withstanding whatever alleged personal bias or prejudice may be attributed to him) conducted as thorough and as fair of a trial as possible—not withstanding Mumia's own obstruction of the trial process in the proceedings.
Let's look specifically at the evidence. Those of us involved in any form of law enforcement (be it in the field or back in the court room) know that it's not so much direct testimony, or eye witness testimony that is substantive evidence of proof. Rather, it is the circumstantial evidence that we wish to rely upon.
When you look at the circumstantial evidence that Officer Faulkner was shot by a charter arms bullet (notwithstanding that the actual bullet itself was so maligned that ballistic tests couldn't identify the bullet as coming from Mumia's particular gun), coupled with the fact that the defendant was found at curbside in immediate vicinity with a charter arms revolver and five spent casings, what other inference can you draw from those 2 sets of facts, other than Mumia Abu-Jamal shot officer Faulkner?
Hans: You were talking about the “8 lands and 8 grooves” that made it consistent with the charter arms revolver?
Peter: Yes.
Hans: Well, one thing that Mumia supporters point out is that the “8 lands and 8 grooves” were only mentioned by police ballistics expert Anthony Paul at the actual 1982 trial. He didn't actually write that in his original report. He actually wrote that...
Peter: There's no trial that is perfect. We're all accustomed to the CSI and Law and Order television shows and all these nice televised scripts as to what has occurred. That's not reality. Particularly when you look at 25 years ago the opportunities and advantages for forensic evidence seen on TV today, were not available to us 25 years ago.
All else aside, there are 2 conclusive, clear, and convincing facts that Mumia supporters have not controverted:
1) Officer Faulkner was shot by a bullet from a Charter Arms revolver.
2) The defendant was found immediately nearby with a Charter Arms revolver and 5 spent casings.
On those two facts alone, the Commonwealth asked the jury to draw an inference,
which they did, and concluded that the defendant was guilty beyond reasonable doubt
Hans: Can I ask you, regarding...
Peter: Hans, I want to explain in some detail, so you have a grasp what is going on here, okay?
Peter: Now you have to understand law a little bit here and you also have to understand evidentiary law, alright? There are (as in this trial) a set of facts
and then the jury is asked to reach a conclusion. In most trials the facts are not 100% picture perfect complete. In most crimes, the police officers are in fact the eyes and ears of the jury. The prosecution packages what evidence they have in a nice coherent package to the jury.
The problem that we have here is that often the jigsaw puzzle is not complete, and you have to ask the jury to look at the jigsaw puzzle with pictures missing and still ask them to imagine what the total picture is. In law we have facts. We ask jurors to make reasonable inferences from those facts in order to arrive at a conclusion - the conclusion whether the defendant was innocent or guilty.
The bone that is in everybody's throat is that Abu-Jamal was convicted by the jury drawing an inference, and people are not totally comfortable with that. They don't like people being convicted and facing the death penalty based on inference drawn by less than 100% fact.
Here, in this instance we had only 90% facts and the jury was asked to draw an inference based from those facts. That's what people don't understand occurred, and that's what people don't understand has to occur in every trial that goes to court. As with every trial that goes to court, you don't have video cameras
from beginning to end and you don't have eye witnesses anticipating the situation to occur, so as a result the bone that is sticking in everyone's throat is that he was convicted from the inference drawn from circumstantial evidence...
Hans: Okay, can I go back to talking about how the bullet was tied to the Charter Arms...
Peter: Because #1 the bullet was so maligned that it was impossible to conduct a ballistics test on it with the technology we had 25 years ago and #2 The CSI television show is fiction. It's not real. In the real world we have to deal with evidence as we get it.
Notwithstanding that, there is no allegation by any party of interest (such as Pam Africa or any of these other people) which mitigates these two important uncontroverted facts. There is none.
Hans: Okay, let's go back to these “uncontroverted facts”. Police ballistics expert Anthony Paul didn't write about the “eight lands and eight grooves” in his original report...
Peter: So what?
Hans: He actually said...
Peter: So what?
Hans: Could you hold on a second? He actually said that the “general characteristics” were “indeterminable”.
Peter: So what?
Hans: Do you think that's a significant contradiction that first he said it couldn't be determined and then in court he said that it could?
Peter: It still doesn't mitigate the fact that the bullet was a Charter Arms.
No one has controverted or disputed that Faulkner was shot by a Charter Arms bullet.
Hans: That is in dispute, though, because it was the “eight lands and eight grooves” that....
Peter: No one has ever disputed that in a court of law subject to cross examination.
Hans: Actually, in the PCRA hearings in 1995 it was brought up and...
Peter: It was only brought up. It wasn't subject to valid cross examination and it dealt with a process, not with a conclusion.
Hans: Well, the prosecution did actually cross examine George Fassnaacht. He was the ballistics expert called by Mumia's defense team and he was actually cross-examined by the prosecution when he testified to this contradiction in Anthony Paul's report.
Peter: That still doesn't mitigate the fact that he was shot by a Charter Arms bullet.
Hans: But that's the evidence that ties it to a Charter Arms revolver. He didn't write that in the original report...
Peter: So what?
Hans: He actually said it was “indeterminable” and could not be tied to it...
Peter: So what?
Hans: Then he changed his mind when he was on the stand.
Peter: So what?
Hans: Okay, so you're saying that it's not a strong enough contradiction...
Peter: It doesn't mitigate the fact that was already established at the trial, which was that Officer Faulkner was shot by a charter arms bullet.
Hans: Well another thing, Amnesty International has criticized the fact that police didn't conduct the “smell” and “wipe” tests. Do you think that challenges the prosecution's theory at all?
Peter: It certainly makes them look stupid, but it still doesn't mitigate these 2 uncontroverted facts.
Hans: So you don't think the contradiction in Anthony Paul's police report challenges the official connection to the charter arms revolver?
Peter: This is why people get hung up with what people do during investigations. You saw the same thing in the OJ Simpson trial, alright, and you see it in a lot of big highlighted trials. When people get involved in it, they screw it up.
Look at the facts themselves. Forget what the people did because that's just peripheral. The basic fact is that Faulkner was shot by a Charter Arms revolver. Fact 2: the defendant was found with a Charter Arms owned by him and registered to him with 5 spent casings.
If he had just a charter arms, that wouldn't mean anything. But he had a charter arms that had had 5 spent casings. Where did those five bullets go to? The subway system? Did he leave them inside, did he discharge them inside his cab?
Hans: Well, they only recovered one bullet [besides the one in Mumia's chest officially tied to Faulkner's gun], right?
Peter: Yes, inside Officer Faulker. The fact is there were 5 spent casings out of his charter arms and no one has disputed that.
Fact #1: the defendant had a Charter Arms with 5 spent casings.
Fact #2: Officer Faulkner was shot by a Charter Arms.
Critics are trying to attack the bridge between those two facts what we legally call “inference” and people are saying you don't convict people on an inference. Mumia Abu-Jamal was convicted on an inference.
The fact of the matter is in our legal system, at least 75% of people are convicted on inferences, otherwise you wouldn't be able to convict anyone.
Hans: Okay, can I ask you more about the hospital confession? Police officer Gary Wakshul originally reported on December 9, 1981 that “the negro male made no comment”. When Mumia's lawyer tried to bring this into court on the last day of trial, Judge Sabo blocked it an would not give the defense time to call Wakshul as a witness. You think that was fair for Sabo to do?
Peter: One could argue whether it was fair or not, however it was not reversible error.
Hans: So you argue that the trial was not as fair as it could have been, but it was fair enough.
Peter: Yes, he got a fair trial. Judge Sabo bent over backwards. I don't think Sabo was given the credit he deserved in accommodating Jamal.
Now, if I was in charge of things, would I want Judge Sabo to preside over this trial?
They should have gotten another Judge to preside over this trial. As was established in Commonwealth v. Jamal as well as the earlier Commonwealth v. Africa, and other such trials of this nature, everybody needs to put their best foot forward and that includes the First Judicial District by appointing a judge whose standing and integrity is unassailable and unimpeachable.
Judge Sabo, with his prior association as an under-Sheriff and as a longtime member of the Fraternal Order of Police, gave ammunition, gave fodder to the opposition.
Nonetheless, Judge Sabo was pushed to the point of exasperation in trying to deal with Mumia Abu-Jamal. Keep in mind that Jamal did everything he could to sabotage his trial and in the civil end of court we call this the “doctrine of unclean hands”. If you're committing something that's wrong, you're doing something that's not right you can't ask for equitable relief if you yourself have committed a wrong in that process.
It's called the doctrine of unclean hands and it's not right for you to screw up your trial (turn your political into a circus) and then turn around and say you didn't get a fair trial. Excuse me, you were the one who were supporting law and order circus antics when you should have been abiding by the system's rules and regulations set forth so the trial could be fair. He sabotaged his trial. So the law says we can't hear you now.
Hans: Mumia's supporters have argued that Mumia didn't start his combative behavior (interrupting Sabo and such) until Sabo actually denied him the right to defend himself
Peter: No, Judge Sabo granted him the right because every defendant in the US is allowed to proceed pro se. What Jamal objected to was the appointment of Anthony Jackson to be his standby counsel. The judge has every right to appoint standby council.
Hans: So the point at which Judge Sabo denied him the right to defend himself, you agree with that? Because he denied him the right [a few days into the trial].
Peter: No, he granted the right to proceed pro se.
Hans: For a couple days.
Peter: When Abu-Jamal refused to abide by the rules, by the proper procedure, and continued to flaunt and abuse the authority granted him, that's when Sabo (as permitted by law) revoked his right to proceed pro se--because he was abusing it. With every right, there is a corresponding responsibility.
If I'm the judge I'm going to give you the right to proceed pro se, but if you want to be like council and represent yourself, then you better act like council. It doesn't mean that you turn the courtroom into a sandbox.
Hans: Okay, going back to Judge Sabo, what do you think about court stenographer Terry Mauer-Carter's 2001 affidavit... [saying she overheard Judge Sabo say in regards to Mumia's trial that he was going to help the prosecution “fry the nigger.”]
Peter: It doesn't surprise me. why should that surprise me?
Hans: You don't think the affidavit should be allowed into his current appeal?
Peter: First of all, it's not for me to second guess the Third Circuit Court
in regard to that one claim that judicial bias tarnished the PCRA proceedings, because under the law of Pennsylvania, there is no right to a PCRA proceeding. So having said that they would have to argue about due process and some state created right which may or may not be.
Is the PCRA (written by state representative Lois Haggerty of Montgomery County) a model of constitutional clarity and compliance?
Absolutely not.
Hans: The statement was from the original 1982 trial, not the later PCRA hearings.
Peter: Fine.
Hans: So you think Sabo probably did say it, but it doesn't affect his trial enough that...
Peter: No, it would surprise me if he didn't say it. You know, you have to understand something, okay? We call this conviction psychology. This rule that you're presumed innocent until proven guilty is a joke, it's a standing joke. We all know it because people suffer from conviction psychology.
Do you have siblings?
Hans: I was the oldest, I had a younger sister
Peter: Okay, when your younger sister complained to mom and dad that you struck her, what did your parents do? They came back and yelled at you, right?
Hans: Usually
Peter: We call that conviction psychology. Usually when people make an accusation, when people hear about an accusation, the fact that the allegation was made taints their objectivity and they give credence to the accusation whether or not it is valid. Your sister could have made up the thing that you struck her
but she nonetheless knew that if she ran in and told mom and dad that you struck her you were gonna get your ass kicked.
It's the same thing in the court of law. Every defendant who walks into the court of law has to bear the problem that people say: “well look, he wouldn't have been here unless he did something wrong”. As a result, the judges and jurors and even courtroom observers think “the punk did something wrong”, he's gonna get convicted.
This is a major problem that we have in our court system. Our jurors are not specifically trained to 1)identify conviction psychology, and 2)learn that they have an inherent prejudice which they have to package and leave outside that courtroom door.
Hans: So your saying “innocent until proven guilty” is not a reality?
Peter: Let me finish here. A judge, alright, he's just as human as anyone else is. He, however (being trained in the law), knows that he has personal bias and prejudice. Not only that, he knows that he has personal biases and prejudices but he knows that it is incumbent upon the judge to control them. That's why he wears the black robe: to conceal his personal persona and remind himself and anyone else that whatever personal biases he carries, he left outside the courtroom. When he stepped inside the courtroom his disciplined thinking is that he could care less which side wins. He has to make sure that it is fair, and to that extent, Judge Sabo earnestly attempted to conduct a fair trail .
Was the trial (in the view of the judge, the Commonwealth, and maybe even Anthony Jackson) a slam dunk? I'm sure they all thought it was a slam dunk.
They all thought they were going through the motions perhaps. Nonetheless they went through the motions. They heard all the evidence and Judge Sabo conducted the trial as fairly he could.
Did he conduct a perfect trial, no? But did he conduct a fair trial, yes?
Hans: Even though his comment that he was going to help “fry the nigger”...
Peter: So what?
Hans: He said he was going to help them do it and that means he's going to use his judicial power to help the prosecution, right?
Peter: I'm sure that was bravado more than anything else. Judge Sabo bent over backwards to accommodate Abu-Jamal and moreover if you look at the records, to those of us with a trained eye in looking at these things we see no indicia of prosecution misconduct. We don't see any indicia of appeal violations or what we now call today “404 ambushes”. We don't see any of that.
Joseph McGill did everything he could do to walk the straight and narrow. There were times when he would bait Abu-Jamal, but it was all hard blows that were clearly above the belt
Hans: So you don't...
Peter: The United States says the prosecution can strike hard blows, but they have to be fair blows. McGill did nothing below the belt.
Hans: So you don't think that the jury should have heard about officer Gary Wakshul's “negro male made no comment” statement the day at the hospital?
Peter: For what? To impeach another witness?
Hans: Well, the confession was a big part of the conviction, and it seems that if he said the “negro male made no comment,” that it does challenge the credibilty...
Peter: First of all, jurors back then (just as today) would more likely than not have discounted the testimony of the police officers as being self-serving.
The fact is that the Jefferson University Hospital security guard (who had no axe to grind, and who was not traumatized by the event) was the most levelheaded and objective of all people because she worked in the ER and was used to seeing trauma on a daily basis. Her testimony would be the most credible of any of the testimonies.
Hans: So what do you think about...
Peter: I'm sure that 25 years after the fact, Officer Wakshul is still kicking himself for not reporting the confession at the time. Nonetheless, the testimony of the security guard is all the more credible and remains so today in that regard.
But even if you took out the confession and the errors of the police officers, you still come back to these 2 simple basic facts:
fact 1) Jamal was found with a Charter Arms with 5 spent casings
fact 2) Faulker was shot by a Charter Arms
They would have easily convicted him on those 2 facts alone.
Hans: But if the confession was fabricated, do you think it challenges other evidence?
Peter: No evidence was fabricated. No one has ever alleged in a court of law that it was fabricated
Hans: Why do you think the security guard waited two months to report it also?
Peter: Only because of the mishmash of events. Again, this is not a television show we're talking about.
Hans: Okay, I have next just one more question for you. Going back to the ballistics, the prosecution scenario has Faulkner shooting Mumia at an upward trajectory while Faulkner was falling onto his back. However, the bullet that went through Mumia's chest was at a downward trajectory. What do you think about that?
Peter: I think that we weren't there, we didn't have a video camera or a cellphone camera. We go back to the two fundamental facts that I have articulated.
First, Jamal had a Charter Arms revolver with 5 spent casings and fact #2: Faulkner was shot by a charter arms bullet. Now, until you attack those 2 facts, until you attempt to mitigate those 2 facts, you don't have a leg to stand on with anything.
Hans: Regarding the Charter Arms revolver, did you want to make any more points about the contradiction in the police report. Like I've been saying, they never tied the bullet to the Charter Arms revolver until court. And it was a direct contradiction to the previous report that said those characteristics were “indeterminable”.
Peter: Again, human mistakes certainly screw up things. As I explained to you before, this was not a CSI television show
Hans: Is there anything else you'd like to add?
Peter: Again, with my expertise in civil rights, I have not seen any indication of prosecution or judicial misconduct. It will be 25 years this December 9th. I think it's time justice be served and that the widow be granted closure on this issue.
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LINKS AND UPDATE ON ABU-JAMAL'S COURT CASE
Link to extensive 2005 Kiilu Nyasha interview with Robert Bryan detailing his case for a new trial:
http://www.freemumia.org/NyashaBryanInterview2.pdf
On October 23, attorney Robert R. Bryan (attorney for death-row prisoner Mumia Abu-Jamal) filed the 4th Step Reply Brief with the U.S. Court of Appeals for the Third Circuit, Philadelphia. Bryan estimates that the public hearing of arguments should begin in early 2007. After the hearing, the panel of judges will then decide whether to grant Abu-Jamal a new trial. Link to the Oct.23 brief:
http://www.prisonradio.org/documents/pdf/2006OC~5.PDF
Robert Bryan and Abu-Jamal recently sent a letter to France as a response to the criminal lawsuit and the possible delegation consisting of Wirs and others to France, but the possible visit to France is not happening after all, according to Wirs in the interview above. Link to the letters written by Bryan and Abu-Jamal:
http://www.millions4mumia.org/images/nov.7lettertomairedeparis.pdf
LETTER FROM ATTORNEY ROBERT R. BRYAN RELEASED THURSDAY, NOVEMBER 30
Link to this new brief in pdf format.
http://hbjournalist1.googlepages.com/2006Nov.27-ResponseofMumiatoSur-Reply.pdf
Dear Friends:
Two weeks ago the District Attorney of Philadelphia filed a brief in reply to our most recent brief filed on behalf of Mumia Abu-Jamal. Even though this was to be the last of the briefs before oral argument, we felt obligated to respond due to the complexity of the issues and the government's factual misrepresentations. Attached is the Response of Appellee and Appellant, Mumia Abu-Jamal, to Sur-Reply Brief, submitted this week to the United States Court of Appeals for the Third Circuit, Philadelphia.
This case is of enormous consequence. It concerns the political repression of an outspoken journalist known globally as the "Voice of the Voiceless," the right to a fair trial, and the struggle against the death penalty. The authorities want to kill my client in order to silence his voice and pen. We must not let that occur. Racism and politics are threads that have run through this case since his arrest on December 9, 1981, and continue today.
Each of the issues under consideration by the federal court are of great constitutional significance. They include:
* The prosecutor's exclusion of African Americans from sitting on the jury.
* The bias and racism of the trial judge, Albert F. Sabo, who stated that he was going to "help'em fry the nigger."
* The prosecutor's "appeal after appeal" argument that essentially called upon the jurors to disregard the right to the presumption of innocence and reasonable doubt, and err on the side of guilt.
* The judge's unfair and skewed jury instructions and verdict form that resulted in the death penalty, since jurors were precluded from considering any mitigating evidence unless they all agreed on the existence of a particular special circumstance.
We will be presenting oral argument before a three-judge panel in the U.S. Court of Appeals. Even though no date has been set, this will likely occur within the next few months.
My purpose remains to win this life-and-death struggle, gain a new and fair trial, and see my client walk out of jail a free person. However, as I have warned, Mr. Abu-Jamal remains in great danger.
Thank you for your concern in this campaign for justice.
With best wishes,
Robert
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Robert R. Bryan
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, California 94123
Lead counsel for Mumia Abu-Jamal
Hans Bennett is an independent photojournalist based out of Philadelphia. An archive of his work on Abu-Jamal's case is available at: http://www.insubordination.blogspot.com
Telephone interview with Peter J. Wirs (Chairman of Philadelphia's 59th Republican Ward Executive Committee) about the new criminal charges filed against two French cities supporting journalist and death-row prisoner Mumia Abu-Jamal.
by Hans Bennett
PETER J. WIRS INTERVIEW, LINK TO:
15 minute version:
http://hbjournalist1.googlepages.com/wirs15.mp3
6 minute version:
http://hbjournalist1.googlepages.com/wirs6.mp3
2 minute version:
http://hbjournalist1.googlepages.com/wirs2.mp3
Because the audio is an edited version (to be listener and download friendly) of the interview, the full-length transcript is included below so readers can read more and see the overall context to the questions. In doing the audio editing, I made my best attempt to accurately portray the interview.
Is it a crime to publicly honor the controversial black death-row prisoner and journalist Mumia Abu-Jamal (convicted of killing white Philadelphia police officer Daniel Faulkner in a 1982 trial that Amnesty International has declared a "violation of minimum international standards that govern fair trial procedures and the use of the death penalty")? Future Philadelphia mayoral candidate Peter J. Wirs thinks so.
https://www.59thgopward.com/all_candidates.asp#mayor
Acting as the Chairman of Philadelphia's 59th Republican Ward Executive Committee, Wirs has filed criminal charges against the French cities of Paris and Saint Denis. Their crime?
In 2003 Abu-Jamal was declared an honorary citizen of Paris—the first time since Pablo Picasso was similarly honored in the 1970s. This April, the French city of St. Denis (a Paris suburb) named a major street after him. Rue Mumia Abu-Jamal leads directly to the largest sports arena in Europe: “Nelson Mandela Stadium.”
Wirs and the GOP ward committee allege that these public honors "glorify" a "cop-killer" and therefore violate French Penal Code, Article 24 § 2 (L. 29 juillet 1881), prohibiting “the glorified perpetration of a crime [whose elements include] the voluntary trespass to another person's life or physical integrity ...”
The committee's press release explains the following:
http://www.politicspa.com/pressreleasedetailed.asp?id=7501
“Wirs, a twice-elected state constable who specialized in civil rights investigations, said that his exhaustive examination of court records confirms what U.S. District Court Judge William Yohn also found; that Abu-Jamal received a fair trial despite his own ‘obstreperous conduct’ that hogtied his defense counsel’s representation, and that alleged post-mortem eyewitness recantations and inadvertent forensic deficiencies cannot overcome the sheer weight of circumstantial evidence, that only a Charter Arms .38 caliber revolver killed Officer Faulkner, being one of two firearms found at the crime scene, purchased by and registered to Abu-Jamal; the other being the fallen police officer’s service weapon; coupled with Abu-Jamal’s knowingly self-avowed confession that ‘I shot the motherfucker, and I hope the motherfucker dies’ heard twice by Thomas Jefferson University Hospital security personnel where Abu-Jamal was being treated after his arrest.”
“Abu-Jamal’s supporters seize on the Philadelphia Police Department’s admission they failed to test Abu-Jamal for gunshot powder, now a common test to verify one discharged a firearm; and because the bullet recovered from Faulkner suffered too much mutilation, it could not be conclusively matched with any specific Charter Arms revolver. Such contentions, Wirs asserts, does not mitigate the fact that the bullet specimen had eight lands and grooves with a right hand direction of twist consistent with a Charter Arms revolver; and that Abu-Jamal’s Charter Arms revolver was found next to him which contained five ‘Plus-P’ high-velocity spent bullet shell casings.”
Read local article: http://www.theeveningbulletin.com/site/news.cfm?newsid=17470746&BRD=2737&PAG=461&dept_id=576361&rfi=6
Calling Abu-Jamal a “punk,” Chairman Wirs proclaims that “Abu-Jamal’s gratuitous exploitation of genuine international opposition to the death penalty should be exposed for the 'snake-oil’ scam that it is.”
Wirs and the Committee's criminal charges coincide with two key events. First, Abu-Jamal's newest appeal has now gone through four rounds of reply briefs during the last year and now public oral arguments should begin before the end of the winter in early 2007.
Second, this December 9 will mark the 25th anniversary of Abu-Jamal's arrest and police officer Daniel Faulkner's death. Abu-Jamal's supporters are organizing a mass demonstration at Philadelphia's City Hall on December 9. (see announcement): http://www.freemumia.com/25dec9.html
Peter Wirs has said that advocates of Abu-Jamal's conviction may also be organizing their own event that day a few blocks from City Hall at 13th and Locust: the scene of the crime that December 9, 1981 morning, but it is still undecided.
Mumia Abu-Jamal's Current Appeal
In December, 2001 Federal District Court Judge William Yohn affirmed Abu-Jamal's guilt but overturned the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn ruled that sentencing forms used by jurors and Judge Sabo's instructions to the jury were confusing. Subsequently, jurors mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to be considered as weighing against a death sentence.
Mumia's case is now in the federal Third Circuit Court of Appeals. DA Lynne Abraham is appealing the death penalty ruling while Mumia is appealing the guilty verdict.
If the penalty ruling is overturned, a new execution date will be set for Mumia. If his ruling is upheld, the DA can still impanel a new jury to rehear the penalty phase, which could then sentence Mumia to death—regardless of the 3rd Circuit ruling.
Because the DA appealed Yohn's death penalty decision, Mumia has never left death row, and is still unable to have such “privileges” as full-contact visits with his family.
In December, 2005, the 3rd Circuit announced the beginning of deliberations and shocked many by agreeing to consider two claims not “certified for appeal” by Yohn in 2001.
Abu-Jamal's attorney Robert R. Bryan declared it to be “the most important decision affecting my client since his 1981 arrest, for it was the first time there was a ruling that could lead to a new trial and his freedom.” The courts are now considering the following four issues:
#1. Whether the penalty phase of the 1982 trial violated the legal precedent set by the US Supreme Court's 1988 Mills v. Maryland ruling. This issue was Yohn's grounds for overturning the death sentence and is now being appealed by the DA.
#2. “Certified for appeal” by Yohn in 2001, the Batson claim, addresses the prosecution's use of peremptory challenges to exclude blacks from Abu-Jamal's jury. In 1986, the US Supreme Court ruled in Batson v. Kentucky that a defendant deserves a new trial if it can be proved that jurors were excluded on the grounds of race.
At trial, Prosecutor McGill used 11 peremptory challenges to remove black jurors that were otherwise acceptable. While Philadelphia is 44% black, Abu-Jamal's jury was composed of ten whites and only two blacks. From 1977-1986 when current Pennsylvania governor Ed Rendell was Philadelphia's District Attorney, the evidence of racism is striking: from 1977-86, the Philadelphia DA struck 58% of black jurors, but only 22% of white jurors.
#3. The legality of McGill's statement to the jury minimizing the seriousness of a verdict of guilt: “if you find the Defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final.”
In 1986 the Pennsylvania Supreme Court ruled against McGill in another case (Commonwealth v. Baker) on the same grounds. When Abu-Jamal addressed this same issue in his 1989 appeal with the State Supreme Court, the court reversed its decision on the legality of such a statement—ruling against the claim for a mistrial.
One year later, in the very next case involving this issue (Commonwealth v. Beasley), the State Supreme Court flip-flopped and restored the precedent. However, this would not affect the ruling against Mumia, because the court ruled that this precedent would only apply in “future trials.”
#4. The fairness of the 1995-97 Post Conviction Relief Act (PCRA) hearings when the retired, 74-year-old Judge Sabo was called back specifically for the hearing.
During the 1995 hearings, the mainstream Philadelphia Inquirer wrote that the “behavior of the judge in the case was disturbing the first time around—and in hearings last week he did not give the impression to those in the courtroom of fair mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case.”
Concluding the PCRA hearing, Sabo rejected all evidence and every witness presented by the defense as not being credible. Therefore, Sabo upheld all of the facts and procedures of the original 1982 trial as being correct.
Is it a Crime to Honor Mumia Abu-Jamal?
Is it a crime to honor black journalist and death-row prisoner Mumia Abu-Jamal? Was the 1982 trial fair enough (as Peter J. Wirs argues) that Abu-Jamal is undeserving of a new trial? I have made an attempt to fairly show both sides of the debate so that readers can make their own decision about this controversial case.
This interview transcript is meant to promote my upcoming article where I also have interviewed Philadelphia journalists Linn Washington and David Lindorff about the criminal lawsuit and the fairness of the 1982 trial. I have attempted to interview Michael Smerconish (local journalist and longtime-advocate of Abu-Jamal's execution) for this upcoming article, but he has not yet returned my telephone call.
I will be submitting the upcoming article to the 4 big local newspapers in Philadelphia: The Philadelphia Inquirer, Daily News, Philadelphia Weekly, and City Paper in my effort to present an article to the public that is both fair and balanced: accurately presenting both sides of the debate so that the readers can decide for themselves what to think.
FULL TRANSCRIPT OF INTERVIEW WITH PETER J. WIRS, CHAIRMAN OF PHILADELPHIA'S 59TH REPUBLICAN WARD EXECUTIVE COMMITTEE
Telephone interview Sunday, November 19, 2006
Hans Bennett: What exactly is the 59th Republican Ward Executive Committee?
Peter J. Wirs: It is part of the Republican Party in Philadelphia.
Hans: Is your suit independent of the city government?
Peter: The Republican Party has nothing to do with the government
Hans: Will you be traveling with a Philadelphia delegation to France at the end of the month?
Peter: No, I've only said before that we were contemplating traveling. No firm plans have been made, and since then some addition elements have materialized that I'm not at liberty to discuss on the record at this moment.
Hans: Are you organizing an event for December 9th.
Peter: No, because of materializing developments I'm not at liberty to state on the record
Hans: I've spoken with a couple of Mumia's supporters who feel that the trial was unfair and I wanted to give you a chance to respond to what they said.
Peter: Alright
Hans: One thing they talked about was Mumia's [alleged] hospital confession. I was wondering what you what you thought about the witnesses reporting the confession two months later. Does that in any way challenge their credibility?
Peter: No
Hans: Why not?
Peter: Let me explain why I'm involved in this. I'm a former twice elected state constable out of the city of Harrisburg. My expertise, my law enforcement career is in civil rights investigation.
The US District Court of the Middle District of Pennsylvania and subsequently the Third Circuit appointed me under the Criminal Justice Act to conduct what became the largest prosecution investigation in the history of the federal courts in Pennsylvania
I am furthermore a 2 time elected board member of the south central chapter of the ACLU. I have great expertise and experience in conducting civil rights investigations--particularly in regard to prosecution and judicial misconduct. That's one of the reasons a lot of people have asked me to be involved in this.
When you look at the trial, (and i have examined the trial record extensively, and thoroughly, and comprehensively) of course there were instances where the system did not perform at an optimal level of perfection, but as was well noted by the Supreme Court, no one is entitled to a perfect trial, they're simply entitled to a fair trial. And in this instance, Judge Sabo (not withstanding whatever alleged personal bias or prejudice may be attributed to him) conducted as thorough and as fair of a trial as possible—not withstanding Mumia's own obstruction of the trial process in the proceedings.
Let's look specifically at the evidence. Those of us involved in any form of law enforcement (be it in the field or back in the court room) know that it's not so much direct testimony, or eye witness testimony that is substantive evidence of proof. Rather, it is the circumstantial evidence that we wish to rely upon.
When you look at the circumstantial evidence that Officer Faulkner was shot by a charter arms bullet (notwithstanding that the actual bullet itself was so maligned that ballistic tests couldn't identify the bullet as coming from Mumia's particular gun), coupled with the fact that the defendant was found at curbside in immediate vicinity with a charter arms revolver and five spent casings, what other inference can you draw from those 2 sets of facts, other than Mumia Abu-Jamal shot officer Faulkner?
Hans: You were talking about the “8 lands and 8 grooves” that made it consistent with the charter arms revolver?
Peter: Yes.
Hans: Well, one thing that Mumia supporters point out is that the “8 lands and 8 grooves” were only mentioned by police ballistics expert Anthony Paul at the actual 1982 trial. He didn't actually write that in his original report. He actually wrote that...
Peter: There's no trial that is perfect. We're all accustomed to the CSI and Law and Order television shows and all these nice televised scripts as to what has occurred. That's not reality. Particularly when you look at 25 years ago the opportunities and advantages for forensic evidence seen on TV today, were not available to us 25 years ago.
All else aside, there are 2 conclusive, clear, and convincing facts that Mumia supporters have not controverted:
1) Officer Faulkner was shot by a bullet from a Charter Arms revolver.
2) The defendant was found immediately nearby with a Charter Arms revolver and 5 spent casings.
On those two facts alone, the Commonwealth asked the jury to draw an inference,
which they did, and concluded that the defendant was guilty beyond reasonable doubt
Hans: Can I ask you, regarding...
Peter: Hans, I want to explain in some detail, so you have a grasp what is going on here, okay?
Peter: Now you have to understand law a little bit here and you also have to understand evidentiary law, alright? There are (as in this trial) a set of facts
and then the jury is asked to reach a conclusion. In most trials the facts are not 100% picture perfect complete. In most crimes, the police officers are in fact the eyes and ears of the jury. The prosecution packages what evidence they have in a nice coherent package to the jury.
The problem that we have here is that often the jigsaw puzzle is not complete, and you have to ask the jury to look at the jigsaw puzzle with pictures missing and still ask them to imagine what the total picture is. In law we have facts. We ask jurors to make reasonable inferences from those facts in order to arrive at a conclusion - the conclusion whether the defendant was innocent or guilty.
The bone that is in everybody's throat is that Abu-Jamal was convicted by the jury drawing an inference, and people are not totally comfortable with that. They don't like people being convicted and facing the death penalty based on inference drawn by less than 100% fact.
Here, in this instance we had only 90% facts and the jury was asked to draw an inference based from those facts. That's what people don't understand occurred, and that's what people don't understand has to occur in every trial that goes to court. As with every trial that goes to court, you don't have video cameras
from beginning to end and you don't have eye witnesses anticipating the situation to occur, so as a result the bone that is sticking in everyone's throat is that he was convicted from the inference drawn from circumstantial evidence...
Hans: Okay, can I go back to talking about how the bullet was tied to the Charter Arms...
Peter: Because #1 the bullet was so maligned that it was impossible to conduct a ballistics test on it with the technology we had 25 years ago and #2 The CSI television show is fiction. It's not real. In the real world we have to deal with evidence as we get it.
Notwithstanding that, there is no allegation by any party of interest (such as Pam Africa or any of these other people) which mitigates these two important uncontroverted facts. There is none.
Hans: Okay, let's go back to these “uncontroverted facts”. Police ballistics expert Anthony Paul didn't write about the “eight lands and eight grooves” in his original report...
Peter: So what?
Hans: He actually said...
Peter: So what?
Hans: Could you hold on a second? He actually said that the “general characteristics” were “indeterminable”.
Peter: So what?
Hans: Do you think that's a significant contradiction that first he said it couldn't be determined and then in court he said that it could?
Peter: It still doesn't mitigate the fact that the bullet was a Charter Arms.
No one has controverted or disputed that Faulkner was shot by a Charter Arms bullet.
Hans: That is in dispute, though, because it was the “eight lands and eight grooves” that....
Peter: No one has ever disputed that in a court of law subject to cross examination.
Hans: Actually, in the PCRA hearings in 1995 it was brought up and...
Peter: It was only brought up. It wasn't subject to valid cross examination and it dealt with a process, not with a conclusion.
Hans: Well, the prosecution did actually cross examine George Fassnaacht. He was the ballistics expert called by Mumia's defense team and he was actually cross-examined by the prosecution when he testified to this contradiction in Anthony Paul's report.
Peter: That still doesn't mitigate the fact that he was shot by a Charter Arms bullet.
Hans: But that's the evidence that ties it to a Charter Arms revolver. He didn't write that in the original report...
Peter: So what?
Hans: He actually said it was “indeterminable” and could not be tied to it...
Peter: So what?
Hans: Then he changed his mind when he was on the stand.
Peter: So what?
Hans: Okay, so you're saying that it's not a strong enough contradiction...
Peter: It doesn't mitigate the fact that was already established at the trial, which was that Officer Faulkner was shot by a charter arms bullet.
Hans: Well another thing, Amnesty International has criticized the fact that police didn't conduct the “smell” and “wipe” tests. Do you think that challenges the prosecution's theory at all?
Peter: It certainly makes them look stupid, but it still doesn't mitigate these 2 uncontroverted facts.
Hans: So you don't think the contradiction in Anthony Paul's police report challenges the official connection to the charter arms revolver?
Peter: This is why people get hung up with what people do during investigations. You saw the same thing in the OJ Simpson trial, alright, and you see it in a lot of big highlighted trials. When people get involved in it, they screw it up.
Look at the facts themselves. Forget what the people did because that's just peripheral. The basic fact is that Faulkner was shot by a Charter Arms revolver. Fact 2: the defendant was found with a Charter Arms owned by him and registered to him with 5 spent casings.
If he had just a charter arms, that wouldn't mean anything. But he had a charter arms that had had 5 spent casings. Where did those five bullets go to? The subway system? Did he leave them inside, did he discharge them inside his cab?
Hans: Well, they only recovered one bullet [besides the one in Mumia's chest officially tied to Faulkner's gun], right?
Peter: Yes, inside Officer Faulker. The fact is there were 5 spent casings out of his charter arms and no one has disputed that.
Fact #1: the defendant had a Charter Arms with 5 spent casings.
Fact #2: Officer Faulkner was shot by a Charter Arms.
Critics are trying to attack the bridge between those two facts what we legally call “inference” and people are saying you don't convict people on an inference. Mumia Abu-Jamal was convicted on an inference.
The fact of the matter is in our legal system, at least 75% of people are convicted on inferences, otherwise you wouldn't be able to convict anyone.
Hans: Okay, can I ask you more about the hospital confession? Police officer Gary Wakshul originally reported on December 9, 1981 that “the negro male made no comment”. When Mumia's lawyer tried to bring this into court on the last day of trial, Judge Sabo blocked it an would not give the defense time to call Wakshul as a witness. You think that was fair for Sabo to do?
Peter: One could argue whether it was fair or not, however it was not reversible error.
Hans: So you argue that the trial was not as fair as it could have been, but it was fair enough.
Peter: Yes, he got a fair trial. Judge Sabo bent over backwards. I don't think Sabo was given the credit he deserved in accommodating Jamal.
Now, if I was in charge of things, would I want Judge Sabo to preside over this trial?
They should have gotten another Judge to preside over this trial. As was established in Commonwealth v. Jamal as well as the earlier Commonwealth v. Africa, and other such trials of this nature, everybody needs to put their best foot forward and that includes the First Judicial District by appointing a judge whose standing and integrity is unassailable and unimpeachable.
Judge Sabo, with his prior association as an under-Sheriff and as a longtime member of the Fraternal Order of Police, gave ammunition, gave fodder to the opposition.
Nonetheless, Judge Sabo was pushed to the point of exasperation in trying to deal with Mumia Abu-Jamal. Keep in mind that Jamal did everything he could to sabotage his trial and in the civil end of court we call this the “doctrine of unclean hands”. If you're committing something that's wrong, you're doing something that's not right you can't ask for equitable relief if you yourself have committed a wrong in that process.
It's called the doctrine of unclean hands and it's not right for you to screw up your trial (turn your political into a circus) and then turn around and say you didn't get a fair trial. Excuse me, you were the one who were supporting law and order circus antics when you should have been abiding by the system's rules and regulations set forth so the trial could be fair. He sabotaged his trial. So the law says we can't hear you now.
Hans: Mumia's supporters have argued that Mumia didn't start his combative behavior (interrupting Sabo and such) until Sabo actually denied him the right to defend himself
Peter: No, Judge Sabo granted him the right because every defendant in the US is allowed to proceed pro se. What Jamal objected to was the appointment of Anthony Jackson to be his standby counsel. The judge has every right to appoint standby council.
Hans: So the point at which Judge Sabo denied him the right to defend himself, you agree with that? Because he denied him the right [a few days into the trial].
Peter: No, he granted the right to proceed pro se.
Hans: For a couple days.
Peter: When Abu-Jamal refused to abide by the rules, by the proper procedure, and continued to flaunt and abuse the authority granted him, that's when Sabo (as permitted by law) revoked his right to proceed pro se--because he was abusing it. With every right, there is a corresponding responsibility.
If I'm the judge I'm going to give you the right to proceed pro se, but if you want to be like council and represent yourself, then you better act like council. It doesn't mean that you turn the courtroom into a sandbox.
Hans: Okay, going back to Judge Sabo, what do you think about court stenographer Terry Mauer-Carter's 2001 affidavit... [saying she overheard Judge Sabo say in regards to Mumia's trial that he was going to help the prosecution “fry the nigger.”]
Peter: It doesn't surprise me. why should that surprise me?
Hans: You don't think the affidavit should be allowed into his current appeal?
Peter: First of all, it's not for me to second guess the Third Circuit Court
in regard to that one claim that judicial bias tarnished the PCRA proceedings, because under the law of Pennsylvania, there is no right to a PCRA proceeding. So having said that they would have to argue about due process and some state created right which may or may not be.
Is the PCRA (written by state representative Lois Haggerty of Montgomery County) a model of constitutional clarity and compliance?
Absolutely not.
Hans: The statement was from the original 1982 trial, not the later PCRA hearings.
Peter: Fine.
Hans: So you think Sabo probably did say it, but it doesn't affect his trial enough that...
Peter: No, it would surprise me if he didn't say it. You know, you have to understand something, okay? We call this conviction psychology. This rule that you're presumed innocent until proven guilty is a joke, it's a standing joke. We all know it because people suffer from conviction psychology.
Do you have siblings?
Hans: I was the oldest, I had a younger sister
Peter: Okay, when your younger sister complained to mom and dad that you struck her, what did your parents do? They came back and yelled at you, right?
Hans: Usually
Peter: We call that conviction psychology. Usually when people make an accusation, when people hear about an accusation, the fact that the allegation was made taints their objectivity and they give credence to the accusation whether or not it is valid. Your sister could have made up the thing that you struck her
but she nonetheless knew that if she ran in and told mom and dad that you struck her you were gonna get your ass kicked.
It's the same thing in the court of law. Every defendant who walks into the court of law has to bear the problem that people say: “well look, he wouldn't have been here unless he did something wrong”. As a result, the judges and jurors and even courtroom observers think “the punk did something wrong”, he's gonna get convicted.
This is a major problem that we have in our court system. Our jurors are not specifically trained to 1)identify conviction psychology, and 2)learn that they have an inherent prejudice which they have to package and leave outside that courtroom door.
Hans: So your saying “innocent until proven guilty” is not a reality?
Peter: Let me finish here. A judge, alright, he's just as human as anyone else is. He, however (being trained in the law), knows that he has personal bias and prejudice. Not only that, he knows that he has personal biases and prejudices but he knows that it is incumbent upon the judge to control them. That's why he wears the black robe: to conceal his personal persona and remind himself and anyone else that whatever personal biases he carries, he left outside the courtroom. When he stepped inside the courtroom his disciplined thinking is that he could care less which side wins. He has to make sure that it is fair, and to that extent, Judge Sabo earnestly attempted to conduct a fair trail .
Was the trial (in the view of the judge, the Commonwealth, and maybe even Anthony Jackson) a slam dunk? I'm sure they all thought it was a slam dunk.
They all thought they were going through the motions perhaps. Nonetheless they went through the motions. They heard all the evidence and Judge Sabo conducted the trial as fairly he could.
Did he conduct a perfect trial, no? But did he conduct a fair trial, yes?
Hans: Even though his comment that he was going to help “fry the nigger”...
Peter: So what?
Hans: He said he was going to help them do it and that means he's going to use his judicial power to help the prosecution, right?
Peter: I'm sure that was bravado more than anything else. Judge Sabo bent over backwards to accommodate Abu-Jamal and moreover if you look at the records, to those of us with a trained eye in looking at these things we see no indicia of prosecution misconduct. We don't see any indicia of appeal violations or what we now call today “404 ambushes”. We don't see any of that.
Joseph McGill did everything he could do to walk the straight and narrow. There were times when he would bait Abu-Jamal, but it was all hard blows that were clearly above the belt
Hans: So you don't...
Peter: The United States says the prosecution can strike hard blows, but they have to be fair blows. McGill did nothing below the belt.
Hans: So you don't think that the jury should have heard about officer Gary Wakshul's “negro male made no comment” statement the day at the hospital?
Peter: For what? To impeach another witness?
Hans: Well, the confession was a big part of the conviction, and it seems that if he said the “negro male made no comment,” that it does challenge the credibilty...
Peter: First of all, jurors back then (just as today) would more likely than not have discounted the testimony of the police officers as being self-serving.
The fact is that the Jefferson University Hospital security guard (who had no axe to grind, and who was not traumatized by the event) was the most levelheaded and objective of all people because she worked in the ER and was used to seeing trauma on a daily basis. Her testimony would be the most credible of any of the testimonies.
Hans: So what do you think about...
Peter: I'm sure that 25 years after the fact, Officer Wakshul is still kicking himself for not reporting the confession at the time. Nonetheless, the testimony of the security guard is all the more credible and remains so today in that regard.
But even if you took out the confession and the errors of the police officers, you still come back to these 2 simple basic facts:
fact 1) Jamal was found with a Charter Arms with 5 spent casings
fact 2) Faulker was shot by a Charter Arms
They would have easily convicted him on those 2 facts alone.
Hans: But if the confession was fabricated, do you think it challenges other evidence?
Peter: No evidence was fabricated. No one has ever alleged in a court of law that it was fabricated
Hans: Why do you think the security guard waited two months to report it also?
Peter: Only because of the mishmash of events. Again, this is not a television show we're talking about.
Hans: Okay, I have next just one more question for you. Going back to the ballistics, the prosecution scenario has Faulkner shooting Mumia at an upward trajectory while Faulkner was falling onto his back. However, the bullet that went through Mumia's chest was at a downward trajectory. What do you think about that?
Peter: I think that we weren't there, we didn't have a video camera or a cellphone camera. We go back to the two fundamental facts that I have articulated.
First, Jamal had a Charter Arms revolver with 5 spent casings and fact #2: Faulkner was shot by a charter arms bullet. Now, until you attack those 2 facts, until you attempt to mitigate those 2 facts, you don't have a leg to stand on with anything.
Hans: Regarding the Charter Arms revolver, did you want to make any more points about the contradiction in the police report. Like I've been saying, they never tied the bullet to the Charter Arms revolver until court. And it was a direct contradiction to the previous report that said those characteristics were “indeterminable”.
Peter: Again, human mistakes certainly screw up things. As I explained to you before, this was not a CSI television show
Hans: Is there anything else you'd like to add?
Peter: Again, with my expertise in civil rights, I have not seen any indication of prosecution or judicial misconduct. It will be 25 years this December 9th. I think it's time justice be served and that the widow be granted closure on this issue.
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LINKS AND UPDATE ON ABU-JAMAL'S COURT CASE
Link to extensive 2005 Kiilu Nyasha interview with Robert Bryan detailing his case for a new trial:
http://www.freemumia.org/NyashaBryanInterview2.pdf
On October 23, attorney Robert R. Bryan (attorney for death-row prisoner Mumia Abu-Jamal) filed the 4th Step Reply Brief with the U.S. Court of Appeals for the Third Circuit, Philadelphia. Bryan estimates that the public hearing of arguments should begin in early 2007. After the hearing, the panel of judges will then decide whether to grant Abu-Jamal a new trial. Link to the Oct.23 brief:
http://www.prisonradio.org/documents/pdf/2006OC~5.PDF
Robert Bryan and Abu-Jamal recently sent a letter to France as a response to the criminal lawsuit and the possible delegation consisting of Wirs and others to France, but the possible visit to France is not happening after all, according to Wirs in the interview above. Link to the letters written by Bryan and Abu-Jamal:
http://www.millions4mumia.org/images/nov.7lettertomairedeparis.pdf
LETTER FROM ATTORNEY ROBERT R. BRYAN RELEASED THURSDAY, NOVEMBER 30
Link to this new brief in pdf format.
http://hbjournalist1.googlepages.com/2006Nov.27-ResponseofMumiatoSur-Reply.pdf
Dear Friends:
Two weeks ago the District Attorney of Philadelphia filed a brief in reply to our most recent brief filed on behalf of Mumia Abu-Jamal. Even though this was to be the last of the briefs before oral argument, we felt obligated to respond due to the complexity of the issues and the government's factual misrepresentations. Attached is the Response of Appellee and Appellant, Mumia Abu-Jamal, to Sur-Reply Brief, submitted this week to the United States Court of Appeals for the Third Circuit, Philadelphia.
This case is of enormous consequence. It concerns the political repression of an outspoken journalist known globally as the "Voice of the Voiceless," the right to a fair trial, and the struggle against the death penalty. The authorities want to kill my client in order to silence his voice and pen. We must not let that occur. Racism and politics are threads that have run through this case since his arrest on December 9, 1981, and continue today.
Each of the issues under consideration by the federal court are of great constitutional significance. They include:
* The prosecutor's exclusion of African Americans from sitting on the jury.
* The bias and racism of the trial judge, Albert F. Sabo, who stated that he was going to "help'em fry the nigger."
* The prosecutor's "appeal after appeal" argument that essentially called upon the jurors to disregard the right to the presumption of innocence and reasonable doubt, and err on the side of guilt.
* The judge's unfair and skewed jury instructions and verdict form that resulted in the death penalty, since jurors were precluded from considering any mitigating evidence unless they all agreed on the existence of a particular special circumstance.
We will be presenting oral argument before a three-judge panel in the U.S. Court of Appeals. Even though no date has been set, this will likely occur within the next few months.
My purpose remains to win this life-and-death struggle, gain a new and fair trial, and see my client walk out of jail a free person. However, as I have warned, Mr. Abu-Jamal remains in great danger.
Thank you for your concern in this campaign for justice.
With best wishes,
Robert
=========
Robert R. Bryan
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, California 94123
Lead counsel for Mumia Abu-Jamal
Hans Bennett is an independent photojournalist based out of Philadelphia. An archive of his work on Abu-Jamal's case is available at: http://www.insubordination.blogspot.com
For more information:
http://www.insubordination.blogspot.com
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