By Stuart Taylor Jr.
June 11, 1996
When death row defense lawyers present "new evidence" to support claims of innocence as long as 14 years after the defendant's conviction -- as those representing Pennsylvania death row inmate Mumia Abu-Jamal did May 22 -- people are understandably skeptical.
Such claims are often little more than desperate, last -ditch ploys by lawyers running out of delaying tactics. Impatience with such stalling helped prompt Congress and President Clinton to enact strict new limits on federal habeas corpus appeals in April.
But the fact is that due to the peculiar dynamics of our criminal process -- and especially the woefully inadequate representation most capital defendants receive at trial -- evidence casting real doubt on the fairness of murder convictions and death sentences regularly emerges many years later.
As the Supreme Court begins to grapple with the ambiguities in the new habeas statute, the Jamal case stands as an example of the need for federal courts to remain open to new evidence, even after seemingly intolerable delays in carrying out the sentence of a defendant who was convicted in 1982 of murdering a police officer in cold blood.
Jamal's case has been much publicized for reasons that have no direct bearing on his guilt or innocence: He is a self -proclaimed black "revolutionary," and an extraordinarily articulate and talented journalist. Those traits have won him a big following in leftist, Hollywood, and European intellectual circles.
Inconveniently for Jamal's admirers, the evidence that he probably killed police officer Daniel Faulkner remains strong: It is undisputed that he was found 4 feet from the dead officer a minute after the killing, with his empty revolver nearby and a bullet from Faulkner's gun in his torso. In addition, while claiming to be "innocent," Jamal has never said that he did not shoot Faulkner or specified who did.
But new evidence, mostly dug up since 1993 by Jamal's first good lawyers, raises at least a tiny doubt as to whether it was he who killed Faulkner, strongly suggests that if he did, it was closer to manslaughter than to cold-blooded murder, and shows clearly that he received an unfair trial, tainted by grossly inadequate defense lawyering, flagrantly biased judging and, in all probability, police fabrication of evidence and intimidation of witnesses.
Timely, Tantalizing Testimony
The latest piece of new evidence is a May 21 affidavit by Veronica Jones, belatedly bolstering both Jamal's trial defense that the killer got away and his current claims that the police intimidated witnesses.
Jones was plying her wares as a prostitute in a seedy part of Philadelphia at 4 a.m. on Dec. 9, 1981, the morning of Faulkner's death. She told police a few days later that she had seen two men hurrying from the scene of the shooting (which she had heard but not seen) before the police arrived and arrested Jamal. But when called as a defense witness at trial, Jones unexpectedly repudiated her police report and supported the prosecution claim that nobody had left the scene.
This, Jones now swears, was perjury, suborned by police. Her May 21 affidavit claims that two (unidentified) Philadelphia detectives had visited her in jail days before Jamal's 1982 trial and had "threatened me by reminding me that I faced a long prison sentence" on multiple pending felony charges; they said she would get off easy if she would help the prosecution at Jamal's trial.
"When they finally left," the affidavit says, "I knew that if I did anything to help the Jamal defense I would face years in prison." And when she was taken from jail to testify at Jamal's trial, "[b]oth detectives who had threatened me earlier were in plain view, standing in the rear of the courtroom. When asked by Jamal's attorney to confirm what I had first told the police -- that I saw two males run from the scene after the firing stopped -- I steadfastly denied it."
Trial testimony by Jones that two men had escaped would have helped Jamal by corroborating the account of another defense witness, Dessie Hightower, that he had seen someone running from the scene. As it was, Hightower's testimony was not much of a counterweight to the prosecution's theory -- backed by two of the three witnesses who identified Jamal as the killer -- that nobody had escaped.
Jamal's current lawyers not only have shredded the credibility of those prosecution witnesses, but also have identified no fewer than five eyewitnesses (including Jones and Hightower) who have said at one time or another that someone escaped the scene. At least four of them said so in their initial police reports, but the jury heard only about Hightower.
Why did it take so long for defense lawyers to come up with the new Veronica Jones account? Well, she says she was afraid to help Jamal. Besides, Jamal's original lawyer never interviewed her, either before or after her surprising trial testimony. And by the time Jamal's current chief lawyer, Leonard Weinglass, began investigating a very cold trail in 1993, Jones had long since left the Philadelphia area, moving several times, using aliases, and keeping an unlisted phone number. It took some doing to find her.
Of course, it's possible that Jones is lying now, but her current account helps convince me that somebody escaped the scene of the crime.
Moreover, the Jones affidavit adds weight to the considerable body of evidence that police influenced a number of vulnerable witnesses -- some through intimidation, some though more subtle suggestions -- to make dramatic changes in their initial stories so as to paint Jamal as a cold-blooded murderer deserving of death, while suppressing evidence that might complicate the picture.
Most flagrantly, it appears probable that a flamboyant Jamal "confession" that was presented to the jury -- "I shot the motherfucker and I hope the motherfucker dies" -- was a complete fabrication, concocted by police long after the fact to clinch the case. Although a prosecution witness claimed that Jamal had shouted this out at the hospital twice, within earshot of 15 or 20 police officers -- who were soon interviewed by homicide detectives seeking to build the strongest possible case against Jamal -- not a word about this "confession" found its way into a single police report for more than two months.
And one of the officers who was later to claim he had heard Jamal's shouted "confession" wrote in his initial report, hours after the shooting, that Jamal had "made no comments" at the hospital. The jury never heard about that.
Bad Means To An End?
Some might be tempted to dismiss even such gross violations of due process, and the many others detailed by Jamal's current lawyers, as harmless error if it were utterly clear that Jamal is a cold-blooded cop-killer. But it's not clear.
Evidence that was not provided to the jury shows that Jamal -- then a 27-year-old man with no criminal record -- ran toward Faulkner only after coming upon the sight of the officer beating Jamal's younger brother bloody with a 17-inch flashlight.
(The brother had slugged the officer first while being patted down after a traffic stop; it's unclear whether Jamal saw that. Prosecution and defense agree that the brother did no shooting. He was arrested at the scene, but has never testified.)
The evidence also supports the inference that -- contrary to the prosecution's claim that Jamal fired the first shot "from ambush" into Faulkner's back -- the officer probably fired first, hitting the charging Jamal in the chest and nearly killing him. Then (probably) Faulkner was shot in the back, fell to the ground, and was killed by a bullet between the eyes.
So even if we could be confident beyond a reasonable doubt that it was Jamal who shot Faulkner -- which may be debatable, given the evidence that someone escaped -- it's not at all clear that this was a cold-blooded, first-degree murder, which Pennsylvania law defines as a malicious, unprovoked killing with "deliberation and premeditation."
Jamal is seeking a new trial, and he is entitled to one. But his first collateral attack on his conviction and sentence was predictably rejected last September by Albert Sabo, the same notoriously pro-prosecution Philadelphia judge who presided over the 1982 trial. Jamal is now appealing to the Pennsylvania Supreme Court, which has already rejected (by 4-0 in 1989) his direct appeal in the politically charged case.
If Jamal loses in the state courts, as seems probable, he will seek federal habeas relief. It will be an important test of the new habeas statute, which requires federal judges to give state courts a strong presumption of correctness on issues of federal constitutional law as well as of fact.
Has Congress paved the way for executions of people whose convictions and sentences are tainted by egregious violations of the Constitution and who may not be murderers at all? We'll see.
(Stuart Taylor Jr. is a senior writer with American Lawyer Media, L.P., and The American Lawyer magazine.)
The American Lawyer is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
