Mumia 101: The Attorneys
(picture of the early morning crime scene December 9, 1981)
(What follows is the first in what I hope will be a series of articles by author Christian Peheim about Jamal's case. The first of which deals with Mumia's long history with attorneys in a clear-cut and precise way. Christian also lays out Jamal's bleak future as a result of legal missteps. To fully appreciate Peheim's work is to read this article on his own site. Due to technical constraints on mine, I cannot do the type of pictorial and graphic layouts that he uses so well on his own site to illustrate his points.)
Mumia Abu-Jamal's Lawyers
by Christian Peheim
It’s tough to work as Abu-Jamal’s lawyer. It’s even tougher to be his former lawyer. There is a high probability to be called ineffective or incompetent. It’s even possible to be treated like a criminal who deliberately acted against Abu-Jamal’s interests. Grossman an Kamish are the only former lawyers of Abu-Jamal who never have been called ineffective. At the same time they are the only lawyers who really hurt the case of their client when they started a conspiracy to support Beverly's confession.
Anthony Jackson’s fate was the worst of all. During the trial of 1982 he has been called a shyster and a baboon and his client accused him of being a conspirator who helped judge and prosecutor. Among today’s mumiacs it is a fact that he was incompetent and constitutionally ineffective. Abu-Jamal’s lawyers - from Weinglass to Bryan - often used this argument, as well. In reality he was not that bad. His cross examination of prosecution witnesses was detailed, careful, and sometimes successful (see Gary Bell). He was not as good as O.J.’s Dream Team but he was not bad, either. He made mistakes like the missing character witnesses during the penalty phase and Gary Wakshul, and he was not well prepared. However, there are some important points to consider. Contrary to his own testimony he did not run the show. His statements on the record of the 1982 trial show that Abu-Jamal and not Jackson choose the character witnesses.
Additionally, his client sabotaged the case by not returning witness statements and Jackson simply could not remember everything. Most important for Jackson’s performance was the fact that he had nothing to go on. Lindorff blamed him for not presenting an alternative to the prosecution scenario but forgets to explain how that alternative scenario should have looked like. Not even his client gave him support. In the end the prosecution had a strong case and there was no alternative scenario. Usually, the accusations against Jackson are based on his sworn declaration prepared for the PCRA hearing.
Even the completely fact challenged report by Amnesty International mentions that declaration but not the record of the cross examination by Hugh Burns. ("A Live in the Balance" supposedly is based on the trial transcripts but some very disturbing mistakes show that this statement at the beginning of the report is an outright lie. Amnesty International never did apologize for that biased report.) Despite all the problems Jackson described 1995, it’s difficult to find out how he could have done better and which advantage he could have gained. Weinglass and Williams had sufficient resources, years for preparation, Abu-Jamal’s support, and they still were not able to win the case. Judge Yohn described the situation pretty well when he wrote about some of the claims regarding Jackson’s performance “I specifically have found each of petitioner’s substantive claims regarding these issues to be without merit.”
Compared with Jamal's other attorneys, Marilyn Gelb has not been criticized that much. She was Abu-Jamal’s appellate counsel until 1991. Her performance can be compared to Jackson’s.
She was neither great nor bad and she had the same basic disadvantage as Jackson: she had nothing to work with. There where no good arguments available. Weinglass tried to put her on the witness stand, as well, but due to medical reasons she could not testify. As a result, she could not take over all the blame and, therefore, she has not been abused as a prime example of ineffectiveness. Only within petitions the claim of ineffectiveness has been raised.
Leonard Weinglass and Daniel Williams
One should think two successful lawyers like Leonard Weinglass and Daniel Williams would be safe. They successfully challenged two execution warrants (1995 and 1999) and the petition prepared by them resulted in judge Yohn overturning the death sentence. Additionally, they sacrificed their reputation in order to help their client. Otherwise it can’t be explained why they put William Singletary and William Harmon on the witness stand. Both told mutually contradictory fairy tales. Singletary’s account was so unbelievable that DA Arlene Fisk offered police men and police cars to bring him in. Most likely her intention was to embarrass the defense with this witness. Harmon’s account was not better and attorney Williams called them a "disaster".
At the end the lawyers got nicknamed “scheme team” by the Philadelphia press. However, even Weinglass and Williams had their limits. After the 1997 testimony of Pamela Jenkins become a first class disaster, they had to be more careful. Finally, the complete nonsense of Arnold Beverly’s confession was too much for them. In the dream world of Rachel Wolkenstein and the Partisan Defense Committee, Beverly was a witness, in the reality of Williams and Weinglass it was sheer lunacy to use him in court. Williams wrote, he didn’t want to "embarrass himself" by putting Beverly on the stand. At that time he still could count on his client and Abu-Jamal made the decision to ignore Beverly. Two years later Williams published "Executing Justice" and he and Weinglass got fired, and than savaged by the movement that once looked to them as saviors. To me it’s still a mystery why Abu-Jamal did not only fire Williams but Weinglass, as well. Maybe he was desperate.
The judicial maneuvers during the nineties where fruitless. On the other hand, Beverly looked like the promise of a new trial. However, Beverly’s confession was already old and the claim of ineffective counsel was not sufficient to circumvent the timeliness requirement. In order to get the confession accepted by the court, Grossman required something stronger than that. He launched some vicious attacks against Weinglass and accused him of deliberately sabotaging the case. Therefore, Grossman claimed, the former lawyers acted like government agents and, as a result, Beverly’s confession should not be barred. The courts did not buy into this. According to Judge Dembe, it was a thinly veiled ineffectiveness claim and she refused to decide on the merits. In the end Leonard Weinglass was as professional as Anthony Jackson before him. He did not fight back and still speaks well of his former client.
Eliot Grossman and Marlene Kamish
The strategy of Eliot Grossman and Marlene Kamish has been criticized from the beginning and, as shown by court decisions and by waning public support, the critics were right. After Daniel Williams and David Lindorff explained in their pro-Jamal books that Beverly’s confession is not believable, most supporters realized that they could no longer use it in their propaganda. Only some extreme left-wing groups like the Partisan Defense Committee still use it in their campaigns. Meanwhile, many Jamal supporters complain that such seemingly important testimony has been dismissed on procedural grounds only. However, this argument ignores the fact that the unreliable nature of that confession was the reason for the lawyers to not present it on time. Grossman’s claims and actions had a few lasting effects. First of all, Daniel Williams has been called a traitor.
Otherwise his book Executing Justice would have had a devastating effect on Beverly, but the defense team could not do without his confession. Additionally, Weinglass has been accused of sabotaging the case of his client. That treatment of Abu-Jamal’s former lawyers resulted in a financial disaster. Many supporters simply turned their backs on the case. In the end, Grossman failed completely. His own habeas petition has been rejected by judge Yohn and his so-called “evidence” of actual innocence hasn’t been heard. But that’s not all. In view of the evidence presented in public, in my view, he became the first lawyer who really hurt Abu-Jamal’s case.
The Conspiracy to Support Beverly's Confession
In May 2001 Grossman presented 5 declarations. They were supposed to bolster Arnold Beverly’s confession. First of all, Beverly’s confession says that he and another unknown perpetrator have shot Daniel Faulkner. He was hired by the mob and corrupt policemen. Abu-Jamal arrived at the crime scene after the murder took place and he got shot by another officer. Donald Hersing’s declaration provided a motive for the murder. He was an FBI informant and his declaration described his contacts with corrupt policemen.
William Cook provided some clues regarding Kenneth Freeman being the second hit man. If the affidavits are to be believed, Cook did not see anything because at the time of the murder he was inside his Volkswagen and looked backwards. For his part, Mumia stated he was in his taxicab and did not see anything, either. After he heard something like shots he saw his brother, run towards the scene and got shot by a police officer. He claims that he cannot remember anything else.
The fifth declaration came from journalist and a long-time friend of Mumia, Linn Washington. He gave some amazing statements. Washington attacked the police for things they have done in the 1970s and he described how other people have told him on the morning after the shooting that Abu-Jamal was beaten by the police. Of course, he does not give any names. His entire declaration would have been pretty useless except for one small portion. When he arrived at 13th and Locust around 8:30 he found the crime scene without any police officers and he was able to inspect the unlocked Volkswagen. Inside he saw a few drops of blood on the floor in the back behind the driver's seat.
That statement should have corroborated William Cook’s declaration who said he was inside the Volkswagen after he has been beaten by Daniel Faulkner. Cook claimed that he was bleeding profusely when he went inside the car and searched for some papers on the back seat. The entire story was a fabrication and it wasn’t even a good one. Abu-Jamal’s account contradicts virtually all witnesses, he claimed to have seen things through his rear view mirror which where not visible through that mirror and he completely forgets to mention his own weapon. Why he has drawn his weapon and when did he fire all five rounds? Cooks declaration was worse.
Despite his guilty plea for aggravated assault on Daniel Faulkner he now claims that he never has done anything. He says he went inside the car after he has been beaten. Only a suicidal officer would have allowed him to do so because in such a situation he could not see Cook’s hands. Cook claimed that everything happened in front of the Volkswagen but this claim contradicts witness statements, and crime scene photos show a clear trail of blood coming from the front of Faulkner’s car. Additionally, the entire car stop happened within some thirty seconds. William Cook did not have enough time to go back into his car.
Finally, Washington’s declaration is a lie, as well. His recollection is that he saw blood on the floor. However, since Cook did not go back into his car he also did not bleed there. Additionally, a police officer searched the Volkswagen and did not see any blood drops. How is it that Washington remembered this 20 years after the crime, coincidentally when a number of other people just happened to be making statements? In reality things where not like he describes them. When did Linn Washington search the VW? If he made a mistake with his time estimation and he was there before the Volkswagen has been removed, his account still cannot be the truth because police is present at the scene (one car on the left side and another one in the background with the lights on, this picture can be located on Pehiem's website). Linn Washington told lies in order to support Cook’s lies. But the worst is the fact that Washington and Cook somehow must have worked together to create their lies, or had them scripted for them.
Addendum (September 2007) I just realized that A Case For Reasonable Doubt brought a short sequence which showed the crime scene at the early morning before sunrise. On the left side a police car can be seen and in the background most likely another police car is parked with the headlights on. A look at the scene confirms that all cars (Faulkner’s police car, Volkswagen and Ford Galaxy) have been removed already. Therefore, Linn Washington’s declaration is even more suspicious. At which location did he find the Volkswagen? How Does This Hurt Abu-Jamal?
Meanwhile many years have passed and Arnold Beverly is in the trash bin of history. All those declarations have been exposed as nonsense. The entire strategy never had a chance because the timeliness requirement was too big an obstacle. Even if Grossman would have been successful in getting a new PCRA hearing, the judge would have immediately dismissed his claims on the merits. Grossman had a completely unrealistic objective.
However, the situation after Grossman is not the same as before. He allowed Abu-Jamal and his brother to present sworn declarations. Both declarations did not help him with the timeliness requirements. They could have been helpful after Beverly would have been accepted by the Court of Common Pleas but not before. Right from the beginning both declarations have been useless. But now the brothers have made their statements and they have no real chance to change their stories. Why this is important? Legal proceedings in Abu-Jamal’s case can lead to a few different situations where it could be an advantage for him to testify on his own behalf. When doing so it is very important to be believable.
No matter whether it’s a new trial, a new sentencing hearing or simply a clemency petition to the governor, it would be better for Abu-Jamal if the persons who decide his fate can believe him. If he changes his story he will look like a liar who says anything that sounds favorable. If he sticks to his story it would be a simple task for the prosecutor to discredit him. If he says nothing he cannot contest the evidence. Let us assume for a moment Abu-Jamal gets a new trial. His chances to get acquitted are small but it seems to be possible to get convicted of a lesser charge. If he succeeds in convincing the jury that he saw Daniel Faulkner beating his brother and due to this violent act committed by a white police officer he lost self control, he has a small chance of obtaining a manslaughter conviction.
If that fails or if he gets a new sentencing hearing his task is to establish mitigating factors. The same story could be used to explain a state of mental turmoil which constitutes a mitigating factor. Additionally, I am sure there will be some character witnesses who will do there best to prove his good character, which would be a third mitigating factor. The first mitigating factor is the fact that he does not have a criminal record, which has been accepted by the original jury in 1982. Such mitigating evidence was the reason why Jamil Abdullah Al-Amin’s life got spared after he killed a police officer in Atlanta and wounded a second one. Abu-Jamal’s lawyers could try to do the same for their client and a sympathetic jury could be swayed to spare his life, too.
In the worst case where the only thing left is a petition for clemency, Abu-Jamal could try to convince the governor that there are mitigating factors which have not been heard by a jury. Legal proceedings still can drag on for years and a future governor may be somehow sympathetic.
In reality Abu-Jamal doesn’t have these options. He already lied and he was part of a conspiracy to obtain his freedom. Grossman and Kamish are responsible for that conspiracy and Abu-Jamal, Cook, and Washington played their own part. In the long run that conspiracy really will hurt Abu-Jamal’s case. Maybe one day he will realize that and try to lay blame his former lawyers for their ineffective work. This tactic however, did not help Jamal in the past, is certain to fail in the future.