Is Innocence Irrelevant?
From Sacco And Vanzetti To Mumia Abu-Jamal
By Eliot Lee Grossman, Esq.
A paper presented at Hofstra University, October 4, 2002 at the symposium Representing Sacco and Vanzetti.
Interest in the guilt or innocence of an accused person or in the adequacy of the legal machinery employed in determining a problem of this nature reaches at times the intensity of a social question. The conscience of a community, sometimes that of the whole civilized world, may feel itself under such circumstances involved in the fate of a person otherwise obscure; and partisanship may run so high that in the locality whose courts are under scrutiny the case at issue can hardly be discussed with reason.
While the foregoing quotation could well describe the contemporary case of Mumia Abu-Jamal, it is taken from prominent New York attorney Osmond Fraenkels introduction to his classic study of the case of Sacco and Vanzetti, published four years after their 1927 execution. Sacco and Vanzetti were convicted of the murder of a paymaster and a guard during a hold-up in South Braintree, Massachusetts in 1920, carried out by a gang of five robbers. The two anarchists were convicted and sentenced to death in an atmosphere of post-World War I patriotic fervor, prejudice against draft-resisters, xenophobia, and anti-communism.
Mumia Abu-Jamal was convicted of the murder of a police officer in downtown Philadelphia, Pennsylvania in 1981. Mumia was convicted and sentenced to death in the context of local hysteria against the MOVE organization, of which he was the most prominent supporter, and a trial in which the prosecutor used against Mumia political statements made at age 16 when he was Minister of Information of the Philadelphia Branch of the Black Panther Party. In December of 2001, a federal judge threw out Mumias death sentence, but affirmed his conviction. Mumias life still hangs in the balance, however, as the State is appealing this decision and has announced its intention to again seek the death penalty if there is a new sentencing hearing.
A mass political movement grew up around both cases, which has made them internationally known and enlisted the support of prominent individuals and numerous organizations throughout the world. In both cases the media has shown itself to be an ideological battleground on which hegemonic and counter-hegemonic forces contend for the opportunity to transmit their messages as each transforms into links on the signifying chain of its discourse the individuals whose lives hang in the balance.
The construction of the other
Newspapers played the predominant role in the mass media in Sacco and VanzettiÇs time. The manner in which the newspapers constructed the defendants as other flowed directly out of their hostility (which is to say, that of their owners) to these foreign-born Reds whose fractured English, refusal to serve as soldiers in the First World War, and despised political opinions not only marked them as Other to the prevailing patriotic ideology, but whose political defense campaign directly challenged the validity of the prevailing myths about the legitimacy of American democracy in general and the fairness of the American legal system in particular. Illustrative of this were two New York Times editorials in 1921, which praised Judge Thayers decision denying a new trial and defended his handling of the original one from the indignation manufactured and manifested against it in Europe, which the newspaper attributed to the efforts of Communist comrades of the defendants. The Times went on to viciously attack domestic Reds who were raising a fat [defense] fund to insure that [e]very legal technicality will be used.
Despite or perhaps because of televisions dominant role in the mass media of our time, television coverage of Mumias case has been almost nonexistent, with the exception of a vicious hit piece perpetrated by pseudo-journalist Sam Donaldson on ABCs 20/20, and short items broadcast immediately after a federal judge threw out Mumias death sentence, the spin of these stories being the consternation of the slain police officers widow that Mumia had not been executed years before.
The only exception to this construction of Mumia as convicted cop-killer the ultimate Other for the defenders of law and order American-style took place on NBCs Today Show the day after the federal judges decision, when the author of this paper and Pam Africa from the International Concerned Family and Friends of Mumia Abu-Jamal refused to be interviewed opposite the slain officers widow and a mouthpiece for the Fraternal Order of Police unless the videotaped confession of Arnold Beverly, the man who committed the crime for which Mumia was sentenced to death, was aired. Although the network played less than the first minute of the 5-minute videotape, the force of Arnold Beverlys confession, which you will see in its entirety at the conclusion of the presentation of this paper, effectively deconstructed the medias misconstruction of this case. The Beverly confession is discussed in greater detail in the final section of this paper where its reception by the courts is compared to that of the Medeiros confession in the Sacco/Vanzetti case.
Mumias case has been effectively blacked-out of the newspapers since his trial concluded twenty years ago, with occasional interludes of biased coverage of newsworthy events such as the 1995 post-conviction hearings before the original trial judge and the December 2001 decision by the federal judge overturning his death sentence. Whenever there is press coverage of Mumia, the mantra convicted cop-killer is invariably inserted before his name.
Arnold Beverlys confession has been censored out of any national news coverage although it took over the entire front page of the sensationalistic Philadelphia Daily News when we filed it in federal court on May 4, 2001. That day the Daily News ran a full-page photograph of Mumia with the headline Abu-Jamal Attorneys Drop A Bombshell: Affidavit from self-described hit man says mob hired him to kill Faulkner. Even Project Censored, which purports to be a vaguely leftist critic of the bourgeois press, has censored the Arnold Beverly story, leaving it out of its list of the 25 Most Censored News Stories of 2001.
From Sacco and Vanzetti to Mumia Abu-Jamal
The invitation to Mumia Abu-Jamals attorneys to present a paper at this symposium was motivated, in part, by our having filed in Mumias habeas corpus proceedings in federal court a memorandum of law drawing a direct historical parallel between the Sacco/Vanzetti case and that of Mumia. We attached to that legal memorandum a copy of Felix Frankfurters classic article on the Sacco and Vanzetti case from the March 1927 issue of the Atlantic Monthly and we urged the judge not to permit the same injustice to be perpetrated upon Mumia Abu-Jamal.
We were inspired to file that legal memorandum by a retired longshoreman who played a significant role in motivating his unions political strike in support of Mumia which shut down West Coast ports for eight hours in 1999, and who brought to our attention the fact that, in the case of Sacco and Vanzetti, as in that of Mumia Abu-Jamal, one of the professional criminals responsible for the crime for which these innocent men were convicted and condemned to death had confessed and exonerated them of any participation in the crime. We will return to the subject of Celestino Medeiros confession in the Sacco/Vanzetti case and Arnold Beverlys confession in the Mumia Abu-Jamal case after comparing some key elements of the grotesque unfairness of the trials in both cases.
The Rigging of the Trials
The Sacco/Vanzetti and Mumia Abu-Jamal trials were both rigged against the defendants from the very beginning. In the case of Sacco and Vanzetti, the early stages of jury selection resulted in only seven jurors being selected and the remainder of the pool of 500 potential jurors being rejected. The trial judge then dispatched the local sheriffs department to round-up more potential jurors overnight. The sheriffs admitted on subsequent cross-examination by defense counsel that they hand-picked the new jury pool from persons personally known to them whom they thought would be good jurors. Many of these hand-picked jurors were not even on the jury lists.
Mumia Abu-Jamal repeatedly demanded a line-up during pretrial proceedings in his case, but these defense motions were all denied. The prosecution initially opposed a line-up as irrelevant because they had no witnesses who could identify Mumia as the person who shot the police officer. Instead, the prosecution announced that it would seek to prove its case by process of elimination and would show that he was the only person present who could have committed the crime. Three days after the first defense motion for a line-up was denied, however, the prosecution put street prostitute Cynthia White on the witness stand at the preliminary hearing to falsely identify Mumia as the shooter.
The jury selection process was also manipulated by the trial judge in Mumias case. Judge Sabo flagrantly violated Mumias constitutional right to personally question the potential jurors when he was defending himself, by taking the voir dire out of Mumias hands and forcing him to choose between Sabo or his court-appointed attorney completing it. Sabo wrongly denied a challenge for cause of a biased white alternate juror who admitted that he could not give the defense a fair trial and Sabo then improperly refused a defense peremptory challenge of the alternate. After the jury was selected, Sabo and the prosecutor, with the connivance of Mumias court-appointed attorney, manipulated a Black woman off the jury for alleged violation of the sequestration rules without affording her a hearing. As a result, the biased white alternate took the Black jurors place.
The prosecutions use of the political opinions of the defendants
The prosecution in the Sacco/Vanzetti case used the defendantsÇ political opinions, particularly their opposition to World War I, to inflame the jury against them. In his cross-examination of Sacco, the lead prosecutor asked if he loved this country when he fled to Mexico in May of 1917 to avoid the draft. This irrelevant and highly prejudicial line of questioning went on and on, over repeated objections by defense counsel, all of which were denied. Judge Thayer reinforced the prosecutions tactics in his final charge to the jury by commending them for responding to the call for jury service like the true soldier, [who] responded to that call in the spirit of supreme American loyalty. Thayer continued with a paean to the word loyalty which drew an implicit but unstated comparison between the disloyal foreign and atheistic anarchists on trial and the loyal God-fearing jurors whose patriotic duty it was to decide their fate.
The prosecution at Mumia Abu-Jamals trial used a political statement by Mumia when he was 16 years old, quoting Mao Tse-Tungs aphorism that political power grows out of the barrel of a gun, to argue for the death penalty. This cross-examination was improperly permitted by Judge Sabo after Mumia made a statement to the jury in exercise of his right to allocution. The right to allocution is the right of a convicted person to personally address the sentencer before sentence is pronounced. Although that right was protected under both the common law and by statute in Pennsylvania, so that cross-examination should not have been permitted, the Pennsylvania Supreme Court reinterpreted the law to retroactively repeal the right to allocution in death penalty cases when this issue was raised in Mumias direct appeal.
The bias of the judges
In the Sacco/Vanzetti case numerous prominent witnesses testified in support of the clemency petition to the Governor of Massachusetts as to Judge Thayers vitriolic statements and prejudice against the defendants and their counsel. Robert Benchley, then drama editor of Life Magazine, who knew Thayer well, recounted a conversation with a mutual friend who enthusiastically reported the judges private comments at the time of the trial that these bastards down in Boston were trying to intimidate him. He would show them that they could not and that he would like to get a few of those Reds and hang them too. A Dartmouth College professor and attorney of conservative views recounted that Thayer told him after denying defense post-trial motions: Did you see what I did with those anarchistic bastards the other day. I guess that will hold them for a while ... Let them go to the Supreme Court now and see what they can get out of them. The Italian Counsel in Boston reported his impressions from having attended the trial: [H]e [ Judge Thayer] was sure that those two men were guilty...and this feeling of his was evident all through the trial. The special commission created by the Governor of Massachusetts to review Sacco and Vanzettis clemency petition gave short shrift to this evidence, in part because it must have made little impact on the commission chairman, Harvard University President Abbot Lawrence Lowell, who was an anti-Italian bigot and an avowed racist whose accomplishments included the introduction of racial and religious quotas into Harvards admission policies.
In the case of Mumia Abu-Jamal, a Court Stenographer, Terri Maurer-Carter, came forward in August of 2001 and submitted a declaration under penalty of perjury that, while passing through the antechamber of Judge Sabos courtroom at the time of Mumias trial, she overheard a conversation in which Sabo said, in reference to Mumia, Yeah, and Im going to help them fry the n****r. Sabos unremitting hostility to Mumia was evident throughout the trial. Newspaper reports of the 1995 post-conviction proceedings before Sabo uniformly criticized his contemptuous treatment of the defense.
The ballistics evidence
In both cases the purported ballistics evidence was misrepresented by the prosecution at trial, is highly suspect, and may have been tampered with if not fabricated by the police. In both the Sacco/Vanzetti and Mumia Abu-Jamal cases the prosecution used the term consistent with to describe the relationship between the purported fatal bullet and the defendants handgun, creating the false impression that there was scientific evidence to prove that the bullet was fired from that particular gun when there was no such evidence. In both cases the use of this term was for the express purpose of misleading the jury since the bullet at issue was also consistent with having been fired by numerous other handguns available in the United States at the time. In the clemency hearings held before the Governors special commission in the Sacco/Vanzetti case, the defense presented evidence that the purported fatal bullet was not genuine and argued that it had been substituted for the real bullet by the police. In the Mumia Abu-Jamal case, what the medical examiner described as a bullet fragment removed from the officers fatal wound mysteriously disappeared from the envelope in which it was sent to the police ballistics lab, and photographs of what is purported to be the fatal bullet do not match its description in the ballistics report.
The eyewitness testimony
Of the witnesses in the Sacco and Vanzetti case who purported to identify the defendants as present at the crime scene, only one witness claimed to have seen the shooting and he admitted to both the prosecution and the defense before trial that he could not identify the shooters. All the other eyewitnesses to the shooting either refused to identify the defendants or testified that neither defendant was involved. None of the witnesses who purported to locate Sacco or Vanzetti at the crime scene had an opportunity for careful observation of the perpetrators. All of these witnesses, except for one, either qualified their identification at some time or were reported by others to have said they could not identify. Other witnesses, with as good or better opportunities for observation, refused to identify or appeared for the defense. In ruling on (and rejecting) post-trial motions by the defense in 1924, the original trial judge, Judge Thayer, expressed the opinion that the jurys verdict did not rest on the eyewitness testimony.
In the case of Mumia Abu-Jamal, two purported eyewitnesses, Robert Chobert and Cynthia White, testified that they saw Mumia shoot the police officer. Chobert, a white taxi driver, was a convicted felon on probation for firebombing a school. He was particularly vulnerable to police and/or prosecution pressure as he was in daily violation of his probation conditions for driving his cab without a license and was subject to over 30 years in state prison if his probation were revoked. According to private investigator Mike Newman, Chobert recanted his trial testimony to him in 1995, but despite Newmans reporting this to Mumias ex-Chief Counsel Leonard Weinglass, Weinglass did not question Chobert about the recantation when he called Chobert as a witness in post-conviction hearings held that same year.
Cynthia White, a street prostitute, with numerous convictions and several open cases at the time of Mumias trial, was just as vulnerable to police or prosecutorial pressure. Despite her testimony against Mumia, White was placed by one witness, William Singletary, in a position from which she could not have seen the shooting. Recently, a new witness came forward, Yvette Williams, who was in jail with White shortly after the incident for which Mumia was prosecuted and convicted. Williams swears that White admitted to her that she did not see the shooting and was high on drugs at the time, but was coerced and bribed by the police to falsely identify Mumia as the shooter. Williams submitted a sworn affidavit in which she states that whenever White returned from interrogation sessions with Philadelphia police detectives Williams observed her to have contraband articles including sandwiches, sodas, white powder, and syringes.
The irrelevance of innocence
In the Sacco/Vanzetti case a young Portuguese immigrant named Celestino Medeiros, who was confined in the same jail with Sacco, sent him a note in November of 1925 which read: I hereby confess to being in the South Braintree shoe company crime and Sacco and Vanzetti was not in said crime. Medeiros later signed a sworn affidavit for the convicted mens attorneys which stated that he had participated in the robbery with four other men who were Italian, and provided various details of the crime, but would not identify the other men. Sacco and Vanzettis attorneys subsequently obtained an affidavit from a man who was an accomplice of Medeiros in the hold-up for which Medeiros was incarcerated, and for which he had been convicted of murder and sentenced to death. The man swore that Medeiros had told him on numerous occasions that the South Braintree robbery had been the work of the Joe Morelli gang, which consisted of five brothers.
There was substantial corroboration for the theory that the Morelli gang was responsible for the crime. Indeed, there was so much evidence of the Morelli gangs role in the robbery and murders that the defense brief to the Massachusetts Supreme Court printed in parallel columns a table comparing the strength of the case against the Morellis to the weakness of the case against Sacco and Vanzetti. However, despite this and other evidence of Sacco and Vanzettis innocence, neither the Governor, his special clemency commission, Judge Thayer or the Massachusetts Supreme Court gave it serious consideration. Against the backdrop of Medeiros confession, United States Supreme Court Justice Oliver Wendell Holmes, the paragon of American jurists, rejected a habeas corpus petition and application for stay of execution based on Judge Thayers bias against the defendants and their counsel. Justice Brandeis, another of Americas greatest jurists, refused to take any action to stop the executions because his wife and daughter had shown interest in the case. Justice Stone cited Holmes opinion in refusing an application for a stay of execution. Chief Justice Taft was in Canada and refused to cross the border to consider an application for a stay. Sacco and Vanzettis innocence was irrelevant to these judges. The two men were executed on August 22, 1927, immediately following the execution of Celestino Medeiros.
In the case of Mumia Abu-Jamal, a man named Arnold Beverly came forward in June of 1999 and signed a written confession under penalty of perjury that he shot and killed Police Officer Daniel Faulkner. Beverly exonerated Mumia of any participation in the crime. This confession was suppressed by Mumias previous attorneys, Chief Counsel Leonard Weinglass and Chief Legal Strategist Daniel Williams, and never presented to any court. Mumia was forced to fire Williams in mid-2001 when he discovered that Williams was about to publish a book which misrepresented the facts of his case and repeatedly suggested that he was guiltyin direct violation of the Rules of Professional Conduct which forbid an attorney from negotiating or entering into a contract to publish a book about one of their active cases because of an inherent conflict of interest. Mumia fired Weinglass at the same time because he refused to take any action to stop Williams from publishing. Mumias present attorneys, upon taking over his case, found the confession in the files of prior counsel along with a mountain of corroborating evidence including the results of a lie detector test administered to Beverly. All of this evidence has now been filed with the courts and is analyzed in detail in the post-conviction petition we filed in state court in July of 2001.
When the federal judge hearing Mumias habeas corpus petition refused to authorize us to take Arnold Beverlys deposition, we arranged for his confession to be videotaped and filed the videotape in state and federal court. It is this videotape which will be shown at the conclusion of the reading of this paper.
Arnold Beverly states in his confession that he and an accomplice were hired by corrupt police officers and organized crime to kill Officer Faulkner because the officer was an obstacle to the pay-off racket the police ran in downtown Philadelphia in the 1980s. This involved shaking down the owners of after-hours clubs and gay bars, prostitutes and pimps, drug dealers and others to pay protection against police raids or other interference with their illicit activities. There were three independent FBI investigations of corruption in the Philadelphia Police Department in the 1980s which resulted in the convictions of 30 police officers including the Assistant Commissioner of Police, the captain in charge of the downtown division that Officer Faulkner worked out of and in which the incident in which he was killed occurred, and the highest ranking officer at the crime scene investigation. The head of homicide was an un-indicted co-conspirator in these federal prosecutions.
In his confession, Arnold Beverly recounts in detail how he and an accomplice lay in wait for Faulkner; how Faulkner clutched his chest, fell to one knee, and then onto his back when shots rang out; and how Beverly walked over to where Faulkner lay, stood over Faulkner and shot him between the eyes, and then used the underground subway system to leave the scene.
Why Mumias previous attorneys suppressed this evidence is not yet fully known, but it is known that they were subjected to death threats to dissuade them from presenting evidence that might point to the real killers. And it must have been obvious to these attorneys that to present this evidence would put them up against ruthless and powerful forces who posed a very real threat to their professional reputations and physical safety. The manner in which the actions of Mumias attorneys undermined and effectively sabotaged his defense is detailed in the post-conviction petition we filed in state court in July of 2001.
Thus far, neither the state nor the federal judges to whom the evidence of Mumia Abu-Jamals innocence has been presented have given it serious consideration. Rather, as in the case of Sacco and Vanzetti, the judges have considered Mumias innocence to be irrelevant. They have used WeinglassÇ and WilliamsÇ suppression of this evidence as a justification for their refusal to permit Arnold Beverly to testify in open court.
Mumias case is now on appeal before the Pennsylvania Supreme Court and the United States Court of Appeals for the Third Circuit. The result of these appeals cannot presently be predicted. Whether history will repeat itself and visit upon Mumia Abu-Jamal the same injustice perpetrated upon Sacco and Vanzetti depends upon each of you who are members of the public as much as it depends on each of us who are Mumias attorneys. To compare the case of Mumia Abu-Jamal to that of Sacco and Vanzetti is to do more than engage in an academic exercise, it is simultaneously to issue and respond to a call to action: Free Mumia Abu-Jamal!