(This is the second in a series of articles published here that are authored by Chrisitan Peheim which delve into the core issues of the case. This article has to do with the ballistics evidence, the prosecution theory, the defense theory, and the conspiracy theories. In order to appreciate this article fully, readers should visit Christian's website
, which contain diagrams and pictures in more detail than I can provide here.)
Was Abu-Jamal's Weapon the Murder Weapon?
by Christian Peheim
Supporters of Abu-Jamal do not like to address this question. Opponents claim that the amount of evidence is very convincing. What does the evidence really show?
The only thing undisputed is the fact that it was not possible to link the deadly bullet to a specific gun because the bullet was distorted and mutilated.
In June 1982, Mumia's attorney, Anthony Jackson was not able to overcome the ballistics evidence. He tried to attack that evidence on many occasions, but he obviously was not successful. Jamal's third attorney,Leonard Weinglass and his team, used the media to attack the evidence, but in court they were not successful. However, outside of court they were able to raise some doubts. In order to find out whether Abu-Jamal’s weapon was the murder weapon we have to examine the evidence presented at the trial and the PCRA hearings.
The gun found beside Mumia Abu-Jamal was a Charter Arms Undercover Revolver made of blue steel with brown wooden grips, 38. calibre, five chambers and a 2 inch long barrel. Due to the short barrel of this undercover model such weapons are called "snub nosed". The barrel had 8 lands and grooves with a right-hand direction of twist. A bullet will be pressed into these lands and grooves to start rotating, which stabilizes its trajectory. The chambers contained one fired casing from the manufacturer Smith & Wesson and four from Federal. All casings had caliber 38 and were lead stamped with the +P designation. The +P designation indicates that the ammunition has been loaded with more gunpowder than standard ammunition.
According to Anthony Paul, the ballistics expert working for the Philadelphia Police Department, the pressure created by +P ammunition is 21,000 pounds compared to 16,000 pounds for standard ammunition. However, due to the shorter barrel the gunpowder did not have time to burn completely.
The gun belonged to Abu-Jamal. He bought it on 27 June 1979 at Pearson’s Sporting Goods and signed the required forms with his name. At the time of the trial the salesman still could remember Abu-Jamal because Jamal was well-dressed. The gun has been found at the crime scene only inches away from him. At the time of his arrest he was wearing an empty shoulder holster for a small gun. Police officers Shoemaker and Forbes have written in their initial reports that they have found the weapon on the sidewalk close to Abu-Jamal. James Forbes took it together with Daniel Faulkner’s gun. Afterwards, police officers Sobolosky, Chin, and McGurk handcuffed Abu-Jamal and carried him to a wagon while Forbes kept the weapons in his left hand. He had the weapons in his hand until after Abu-Jamal has been transported to the hospital.
He can be seen holding the weapons in Pedro Polakoff’s photos. The photos that Jamal supporters are now claiming prove Jamal's innocence. Some conspiracy theories are based on the assertion that someone else had taken Abu-Jamal’s gun out of it's holster. At the time when only Shoemaker and Forbes were at the crime scene, they did not have any opportunity to frisk Abu-Jamal. This would have been possible after reinforcements arrived at the scene.
In order to pull out Abu-Jamal’s gun and pretend that it has been found at the sidewalk these officers would have to have worked together. That means they drafted a plan for a frame-up within the first 5 or 10 very busy minutes. At the same time, this would have to have been carried out under the eyes of curious onlookers. This conspiracy theory is pure nonsense. No one who is serious could consider such a theory. The fact that Mumia had a gun raises questions.
In order to explain it his lawyers said that he had been robbed twice while driving a taxicab and he required the gun for protection. During an interview in 1998 Leonard Weinglass explained it as follows: “... Mumia did have a gun. He had a legal weapon that night. He was a cab driver. He had been robbed. He took out a permit. He had a gun. ...” This explanation is confusing, probably intentionally so.
According to police reports immediately after the murder, the gun was registered to Abu-Jamal, but he had no permission to carry it. Certainly, he did not have the permission to have it with him in the taxicab, or to have it on his person, in a holster, concealed from public view. It is clear that Jamal, by statements that he and his attorneys have made about his possession of the gun that the gun was carried because he had been robbed twice during his time as a Taxi driver.
However, all reports available today show that he started driving a taxicab in 1981, which was 2 years after he bought that gun.
Projectiles And Fragments
One bullet with round head and one hollow point bullet In total, two bullets and a few fragments have been found (not counting the bullet from Faulkner’s weapon). The projectile extracted from Daniel Faulkner’s head was an un-coated lead hollow base bullet caliber 38 (or 357, because according to Anthony Paul both calibers are the same at the beginning.
The manufacturer was the company Federal because at that time hollow base bullets were unique to this company. The bullet was distorted and mutilated and, therefore, it was not possible to have a 100% match of the bullet to a specific firearm.
During direct examination Anthony Paul explained that he could determine the right-hand direction of twist only. He was not even able to determine the total general rifling characteristics of the barrel. However, during cross-examination he was more precise and said that a sufficiently big area of the bullet’s surface was visible to find out that the barrel had eight lands and grooves.
Some people have doubts about the more precise testimony regarding the number of lands and grooves, and Paul never gave a clear definition of “total general rifling characteristics”. Even if the number of lands and groves seems to be questionable to some observers, the caliber and right-hand direction of twist have been determined beyond any doubt.
In addition to the bullet, medical examiner Dr. Hoyer removed an independent piece of lead with the maximum dimensions 10×3×2 millimeters from Daniel Faulkner’s head. That piece of lead has not been sent to the ballistics department. It’s not known what happened to it. During the PCRA hearing Dr. Hoyer could not remember what he did with that piece. On the other hand, Anthony Paul didn’t say anything about difficulties when measuring the caliber.
Obviously, the missing piece of lead did not have any influence on the diameter of the bullet. In front of the entrance door of 1234 Locust a copper jacket was also found. On the surface was a portion of a knurled cannelure and the weight was 14.6 grains (0.94 grams). A copper jacket is a cup that contains a lead projectile. Especially as part of hollow point bullets a copper jacket restricts the expansion of the lead projectile after hitting a target. In front of the entrance door of 1234 Locust a copper jacket has been found . West of the entrance door seven lead fragments with a total weight of 1.18 grams were also found.
In the vicinity of these fragments at a height of 17 inches was a lead stain was on the wall. In the vestibule of 1234 Locust an un-coated lead fragment, irregular in shape was located. All of the bullet fragments and evidence of gunfire are clearly connected to the murder of Daniel Faulkner. Otherwise, foot traffic would have moved the copper jacket and the very light fragments to a lower location like a chink between concrete panels. More importantly, no other recent shooting in that area has been reported.
Direction of Shots
The locations of gunshot traces show the directions of shots. Since the two holes in the area of the entrance of 1234 Locust are the result of missing shots fired at Daniel Faulkner who was somewhere between the police car and Volkswagen, the shooter has to have been on the street. In contrast to these shots, the deadly shot has been fired at close range. The muzzle of the weapon was at a distance of 23 inches from the head of Officer Faulkner. Together with eyewitness testimony, the projectiles, and fragments, there is evidence of at least four shots (without the shot from Faulkner’s gun). Eyewitnesses testified about more than one shot fired at Daniel Faulkner after he fell to the ground. Therefore, at least one projectile got lost, because it’s rather unlikely that the fragments belong to that missing shot. The fragments could have come from one or more projectiles. The fragment found inside of 1234 Locust has been described as “un-coated” but due to its small weight it could have been part of the tip of a coated bullet and, as a result, it could have belonged to the copper bullet jacket.
Based on the documents available, a more precise determination cannot be made. Together with the two almost complete projectiles we have four or more shots. Two of these shots were un-coated hollow base bullets from the manufacturer Federal. At least one projectile was a different type because it contained a copper jacket.
Variations of a Fairy Tale: Caliber 44 And Caliber 44, Light
For many years, Abu-Jamal’s supporters claimed that Daniel Faulkner was killed by a .44 caliber bullet. The basis of this falsehood was a note written by the Medical Examiner Dr. Hoyer on the first page of his report. The note read “Shot 44 cal”. In 1995, the meaning of this note has been clarified. During the PCRA hearing Dr. Hoyer said that this piece of paper has been an intermediate work product and that it should not have been part of the final report.
Additionally, he was not a ballistics expert. During Jamal's 1982 trial, Dr. Hoyer stated the appearance of the entrance wound was in accordance with +P ammunition. It’s difficult to tell whether such a conclusion can be determined with any degree of scientific certainty. Under certain circumstances, even ammunition with a relatively high velocity can create rather small entrance wounds. However, in this case, the injuries described by Dr. Hoyer, (the skull had multiple fractures above the eyes) were so severe, that they very well could have been in accordance with his experience with +P ammunition. These severe injuries could have been the reason for Dr. Hoyer’s error regarding the bullet’s caliber. Afterwards, the Medical Examiner measured the dimensions of the bullet with a ruler. The diameter at the base was 10 millimeter and the length was 12 millimeter. George Fassnacht, the ballistics expert of the defense, testified that this rough measurement is consistent with caliber 40 but not with caliber 44. He made this determination on the witness stand without pocket calculator.
This statement supported the testimony by the ballistics expert Anthony Paul. Paul for sure used better tools and identified the bullet as caliber 38. Not even the piece of lead not forwarded by the Medical Examiner could change that result. When Weinglass examined Fassnacht during the PCRA hearing, he obviously tried to get the answer that the caliber of a bullet can be determined by weighing it. However, that projectile was not complete and therefore the diameter could not have been determined by weighing, but only by measuring directly.
During the hearing in 1995, George Fassnacht was asked by prosecutor Grant whether he would be willing to carry out a reexamination of the ballistics evidence. He refused to do so for ethical reasons. Whether his refusal to do the examination was justified, or makes sense, is not relevant, particularly in light of the response or rather lack of a response, by Jamal, who was present at the hearing, and his team of attorneys.
Even if Fassnacht would not have carried out that examination they easily would have located another expert. In reality, they did not even try to find out how far the prosecution was willing to go insofar as pressuring the ballistics expert to testify. During the following re-direct examination, Weinglass did not even mention the proposal by prosecutor Grant. In my opinion, to pass up a chance like this, deliberately and knowingly, demonstrates that they did not want to get results that they knew would have further their already damaged case.
An innocent man would have jumped up to claim this chance immediately. In reality, it took six more years until another expert named Ronald Singer asked for the firearms evidence to be reexamined.
This should have been the end of the 44-fairy tale, but Leonard Weinglass’ team of lawyers stubbornly continued to treat it as fact. Other supporters of Abu-Jamal to this day, cling to the myth that the bullet that killed Officer Faulkner was killed by a bullet other than a .38 caliber.
For more serious papers and discussion where statements can only be but so absurd, a more ambiguous version of the fairy tale can be found. Weinglass defended the .44 caliber fairy tale with the arguement that a jury should decide the issue in a new trial. This, in spite of the fact that he knows that without a doubt, the bullet was a .38 caliber.
What is arguably more pernicious than Weinglass and his cynical attempts at perpetuating a myth he knows to be false, is is the report "A Life In The Balance", authored by the human rights's group, Amnesty International. While the author claims that the report is based on the trial transcript, some serious mistakes make this assertion seem less than credible.
The most serious mistake concerns the work of the Medical Examiner. After the 44-fairy tale has been created, supporters of Abu-Jamal claimed that the Medical Examiner has been accepted as a ballistics expert by the court. That claim was indented to lend more weight to his wrong estimation. In reality in 1982 the District Attorney asked him whether the entrance wound was consistent with +P ammunition. After an objection by the defense attorney he was qualified as an expert who can judge the results of that type of ammunition. By no means, however, has he been accepted as a ballistics expert. He only had expertise regarding the wounds created by +P ammunition.
However, Amnesty International would take things one step further. The report inaccurately claims that “the Medical Examiner testified that the bullet was consistent with those fired by Abu-Jamal’s gun but that tests were inconclusive as to whether it actually came from his firearm.” In reality, this statement did not come from the medical examiner, Dr. Hoyer ,but was part of the testimony by the ballistics expert Anthony Paul.
Obviously, the author of "A Life In The Balance" only got the (false) information that the Medical Examiner has been accepted as ballistics expert and afterwards he mixed up the testimony by these two persons. If he really had read the trial transcript as he claims within the report, such a mistake surely would not have occurred. The sad thing is that Amnesty International never apologized for it's mendacious and biased report. Today the 44-fairy tale leads a hidden existence. It’s too absurd to be used as evidence for actual innocence during a serious discussion. It’s not even sufficient an argument to demand a new trial. Why the wrong estimation of a medical doctor should be brought before a jury if it cannot have a real influence on their decision?
The value of this ongoing life can be seen in Michael Schiffmann’s pro-Mumia book, "Race Against Death". He writes in a footnote that the actual diameter never has been determined and he mentions the Medical Examiner’s report. Than he writes, based on the 1981 ballistics report of the police, that defense expert George Fassnacht determined that the caliber of the bullet removed from Faulkner’s head was .40 caliber, which is closer to a .38 than to .44. In reality that estimation was not based on the police report but on the report by the Medical Examiner. Additionally, he ignores testimony by ballistics expert Anthony Paul who clearly said that the bullet was a .38 caliber.
If the true caliber really would be unknown, that fact would be too important for a short description within a footnote. However, the statement about the unknown caliber is completely wrong and, therefore, it was necessary to put it in a footnote. It can raise doubts if readers are not familiar with the case, and at the same time it’s possible that critics will overlook that assertion.
In this shady and manipulative form, the fairy tale of the .44 bullet most likely will stay with us for a long time. Authors like Paul Mulshine and Thomas Clough wrote the deadly bullet was a hollow point bullet. Also Schiffmann, who accurately published the findings of the ballistics report and deals extensively with ballistics, writes in the German version of his book the deadly bullet was a hollow point bullet and such bullets increase the size after hitting a target (mushrooming). Hollow point bullets really act in this way but the deadly bullet was a hollow base bullet with different properties.
Tests Not Carried Out
Two tests could have contributed to answer the question whether Abu-Jamal’s gun was the murder weapon. By simply smelling on the barrel it could have been determined whether the gun had been fired recently (within the last hours). The Neutron Activation Test would have shown whether Abu-Jamal did fire a gun within a few hours. Both tests were not been carried out by Police. The smell test issue was introduced in 1995 by the ballistics expert George Fassnacht. Back in 1982, Fassnacht worked than as an advisor for Jamal attorney, Anthony Jackson.
During the trial Anthony Jackson raised the ballistics test repeatedly with the prosecution experts. George Fassnacht, who later submitted a bill in excess of $750 dollars, surely gave him extensive advice on these tests. Additionally, Jackson worked as evidence technician for the Philadelphia Police Department for a number of years. Moreover, he had his own experience on how to deal with the presentation of evidence through his extensive experience as an attorney. Despite these facts in 1982, none of them mentioned the smell test which raises the issue of how common the practice would have been in 1981.
Additionally, it can’t be explained why such a doubtful test which cannot be reproduced should be part of standard investigation procedures. For police officers at the crime scene it made much more sense to concern themselves with irrefutable evidence obtained from ballistics analysis.
Not only that, but if there was a "conspiracy by police" to frame Mumia, why did they not just claim that they did do such a test and that it was positive? Certainly, there would have been no realistic way to say that they were lying about it. Therefore, it arguably wasn't even a mistake by police officers to not bother with smelling the barrel.
The Neutron Activation Test on the other hand, was standard police practice in 1981. Even Arnold Howard said in his less than credible testimony in 1995 that his hands had been tested in the main police building several hours after the murder. Nevertheless, Abu-Jamal’s hands were not tested. Leonard Weinglass claimed in his typical shady fashion that police may have deliberately omitted this test because it would have shown that Jamal had not fired a gun. This arguement, in light of the facts, simply is not credible
In 1995 the District Attorney worked to prove that the Neutron Activation Test would not have made any sense. Statements from the police bear this out. The murder happened around 3:52 in the morning and police arrived on the scene just moments later. Police officers took Abu-Jamal in custody and brought him to a police van. It was not their duty to test his hands on the spot and would have been absurd considering their suspect was himself shot and wounded.
Arguably, the test should have been carried out in the police building. Perhaps, Roy Land from the Mobile Crime Detection Unit could have done the test, but he arrived at the crime scence around 4:15 a.m, well after Abu-Jamal already has been taken from the crime scene.
Originally, Abu-Jamal was on the way to the police building where his hands could have been tested. However, before he arrived there, the police van was been redirected to Jefferson Hospital. Gary Wakshul wrote this in his report of 9 December 1981.
According to Wakshul's report, "As per orders from Inspector Giordano, we were to proceed, with the male, to the Homicide Unit, but enroute, these orders were amended via police radio and we were informed to go to Jefferson Hospital and to have the male treated for any injuries". After Officers got Jamal to the hospital, it was practically impossible to carry out the Neutron Activation Test.
Before he has been treated for his injuries his clothes would have likely been removed as he was somewhat cleaned up. Obviously, during the time Dr. Coletta treated Abu-Jamal’s injuries it was not possible to carry out the test and afterwards the the test would not have made any sense .
Actually, no one tried to conduct that test. Neither Roy Land at the crime scene nor police officers at the Homicide Unit got a chance to do the test. It’s likely that within the first few hours after the murder no one realized that this test has not been carried out. Afterwards it was too late. It’s simply nonsense to call it part of a conspiracy.
First of all, conspiracies require time for preparation and that mistake happened within a very short period of time after the murder. Additionally, each detective who would have tried to obtain evidence against Abu-Jamal would have insisted on this test. Abu-Jamal and his weapon were found beside a dead police officer. By 4:35 a.m. 4 witnesses had given statements to the police which clearly implicated Abu-Jamal and 2 of theses witnesses identified him at the crime scene.
In light of the evidence obtained by police in the early morning hours. the fact that they did not carry out the test does not indicate a conspiracy against Abu-Jamal. All that remains is the fact that these tests have not been carried out and, as a consequence, cannot be utilized.
Which Facts Were Known in 1982?
In order to answer this question I would like to summarize the items of information available to the jury in 1982. These are the same items of information that were known to the public after the PCRA hearings. The entire story about caliber 44 is not information but a fairy tale and the independent piece of lead, which has not been handed over to the ballistics department, does not change anything, as well.
Mumia was on the crime scene when the murder happened. Only 30 to 45 seconds after the last shot Abu-Jamal’s gun has been found at the crime scene. Until this day no witness was able to provide credible testimony that a person left the scene together with the murder weapon. For people believing in the running man myth this assertion may sound biased but the best account of a running man still comes from Dessie Hightower and his testimony, even by admission of Jamal's former legal team is less than credible. On the other hand, even the fairy tale told by Singletary asserts that the weapon stayed at the crime scene.
When the shooting began the murder weapon has been fired from the street towards the building. Scanlan, White, and Magilton observed Mumia Abu-Jamal leaving the parking lot and crossing the street. No witness testified that another person had been at this location when they heard the first shots.
The murder weapon was outside its holster when the murder happened. Only 30 to 45 seconds after the last shot Abu-Jamal’s gun has been found at the sidewalk outside the shoulder holster. There is no reason to believe that someone else took Abu-Jamal’s revolver and placed it on the sidewalk or that Abu-Jamal has drawn his gun after the shooting. An unused weapon should have been in the shoulder holster.
Weird conspiracy theories involving a policemen taking out the gun from Abu-Jamal’s shoulder holster are simply that: weird conspiracy theories and they don’t have any basis.
The murder weapon has been fired at least four times. Abu-Jamal’s weapon contained 5 spent casings. Therefore, the gun had been fired at some point. Theoretically, he could have carried an empty weapon but there are three main reasons why this is very unlikely.
An empty weapon could have a deterrent effect but that’s unlikely and dangerous, not to speak of the danger or carrying a concealed weapon illegally.
It’s even more unlikely for this specific weapon because it was an undercover model hidden in a shoulder holster. A person attacking Abu-Jamal would not have known that he was armed.
Without live ammunition that gun would have been useless.
The gun was not just empty but it contained spent casings. If they have not been spent in the night of the murder, than Abu-Jamal would have placed a used weapon in his shoulder holster without cleaning and without removing the spent casings. This is even more unlikely than placing a completely empty gun in his holster. Something like this does not just happen accidentally. If the weapon has been emptied before the night of the murder, Abu-Jamal would have known that fact.
The gun was found on the sidewalk beside Abu-Jamal. There would have been no reason to pull out an empty gun. Of course, according to Robert Shoemaker Mumia also reached for the empty gun when police arrived, but that was a different situation. It’s much more believable that Abu-Jamal, who had just shot somebody and himself been shot, did not count the shots fired from his weapon and therefore was not aware of the fact that the gun was empty when police arrived on the scene.
The murder weapon was a .38 caliber and the barrel had 8 lands and grooves with a right-hand direction of twist. Abu-Jamal’s weapon was caliber 38 and the barrel had 8 lands and grooves with a right-hand direction of twist.
The murder weapon contained two different types of ammunition. Two or more bullets were from the manufacturer Federal and at least one bullet was a different type (projectile with copper jacket). Abu-Jamal’s weapon contained four casings from Federal and one casing from Smith & Wesson.
The entrance wound in Daniel Faulkner’s head was very severe and was consistent with +P ammunition. The wound was so severe that Dr. Hoyer estimated a bigger caliber. The casings in Abu-Jamal’s weapon were marked as +P ammunition. The PCRA hearing showed one additional result.
In 1995, the defense got a chance to have the ballistics evidence reexamined by a defense expert and they simply ignored that chance. No innocent man would do that. Supporters of Abu-Jamal always insist that it was not possible to compare the bullet to a specific firearm. It’s true that theoretically multiple millions of weapons could have fired that bullet but these millions of weapons weren't found at the crime scene just seconds after the murder containing five spent casings. It is true that the murder weapon cannot be determined with 100% scientifically certainty to be the one carried by Jamal.
However, the evidence available is sufficient to determine the murder weapon beyond a reasonable doubt. Abu-Jamal’s Charter Arms revolver was the murder weapon!
Abu-Jamal’s Sworn Declaration
On 3 May 2001 Mumia Abu-Jamal signed a sworn declaration. Since that day, commentators have criticized the declaration and have pointed out many holes. Even some supporters of Abu-Jamal question it's believablity. Dave Lindorff and Michael Schiffmann, two authors of books in favor of Abu-Jamal, are among those critics. Lindorff explicitly contradicts the declaration while Schiffmann ignores it when he describes how the murder could have happened.
The reality is that Abu-Jamal’s declaration was part of a conspiracy. Former Mumia attorney Eliot Grossman, and his colleagues clearly initiated this conspiracy in order to get the confession of Arnold Beverly admitted into evidence. In spite of the many holes in Jamal's declaration, it does raise some interesting issues regarding the gun that was found at his side and has been the subject of so much controversy.
Mumia does not mention his weapon in his afadavit, not a single word. Did he carry the gun or not? It has been found at the crime scene with 5 spent casings and he wore an empty shoulder holster. If he carried the gun he has to explain at what time he did fire it. Did he really carry an empty gun or did he fire into the air? If he did not carry his gun he has to explain where it was or who carried his gun. In this case it would be interesting to know why he wore an empty shoulder holster. He claims that he was unconscious after he was shot in the chest, but with that claim he cannot explain why he did not give any information regarding his gun in his declaration.
The crucial facts about his gun are based on the situation before the shooting. He still knows the facts no matter whether he really was unconscious or not. Additionally, Abu-Jamal is smart enough to know how important these things are. In reality, the purpose of his declaration was not to explain, but to hide. Abu-Jamal’s refusal to provide useful information had a negative effect on the question whether his gun was the murder weapon. Before that declaration there was no reasonable doubt. Only some very weak doubts without credibility could have been made up. The idea that he carried an empty gun could be a doubt but for sure no reasonable doubt. The idea that another person pulled out the gun from his shoulder holster is even less credible.
However, all these theoretical doubts do not exist any longer. Since he deliberately has refused to provide any explanation regarding his gun, there are no doubts at all, no matter whether they are reasonable or not. Only mathematical certainty cannot be achieved.