Mr. Sam Donaldson Mr. Harry Phillips 20/20 ABC-TV Dear Sam and Harry,
Because I was on a plane the night your piece on Mumia Abu-Jamal aired I wasn't able to see it. In response to my call, Harry explained that the labor problem you're having made him unable to provide me with a copy, so I had to find my own. I finally did.
Watching the segment takes me back to your comment during our brief conversation, Harry, that you thought the show did a "fair job of presenting both sides of the story." That being so, I'd hate to see what you thought was a biased piece.
I'd like to ask a few questions, if I might, and offer some thoughts on what you've done in the hope that you'll be decent enough to consider them. I guess I won't be naive enough to express here a hope that you'll consider revisiting the issue, but it would be interesting to know what, as people who consider yourselves serious journalists, your thoughts are on the points I raise.
Before going into them, however, I would like you to clarify something for me. There are, as you well know, many who are very exercised about this case. I don't, despite your effort to lump us all together as ignorant or misled "supporters", agree with the positions expressed by large numbers of them, but some do make telling points. In that regard, a communication was sent me claiming to know that someone who works with you, reportedly named Phuong Nguyen, wrote to the head of the Pennsylvania Prison System, probably, I'm assuming, in pursuit of an interview for you with Jamal. Whatever the case, it is suggested that in her letter she indicated a view that most of the material available to the public was biased in favor of Jamal and that you were "currently working in conjunction with Maureen Faulkner and the Philadelphia Fraternal Order of Police."
I'd certainly like to know if that is true, because if so it would 1) explain what I think was the obvious bias of your presentation and 2) put the conversations we had prior to the interview in a new light. You did tell us, I will note, that you were going to interview Mrs. Faulkner. You did not, however, make it clear that you were "working with" either her or the FOP. That fact, I assume you understand, would certainly have made a difference in my decision to take part in what you have called an "investigation."
Before going on to comment upon and ask questions about the segment as aired, I'd like to make a point that seems to have been overlooked by you and others in the media who have chosen to look into this case, however superficially, for their shows. When an incident takes place that is thought to be a crime, witnesses are interviewed and clues are gathered in order for the authorities to reconstruct, as best they can, what occurred. Putting those pieces together, sifting, examining and processing them through the filter of experience, need, prejudice, politics and hopefully a desire to find the truth results in the creation of what is known as a prosecution theory. It then becomes the prosecutor's job to convince a jury that his scenario is not theory but fact, that this is the way it all happened, that the accused is the perpetrator and that in the interests of justice they must find this to be so.
It is the job of the defense, armed with the presumption of innocence on the part of its client, to poke holes in that theory and demonstrate that it didn't, perhaps couldn't have happened that way; to show that the defendant is the wrong man or that the event didn't happen the way the prosecutor suggests; or to show that perhaps the event did occur but in a different sequence or with a different intention than that alleged, so that the defendant is either set free or, perhaps, found to have been responsible for a different, often lesser, infraction.
Though these points may seem obvious, I have noticed that they often appear to be lost in the mind's eye of those, yourselves included, who look at these cases. Lost with them then is the idea that the prosecution theory remains just that, even though held true by a judge and jury, until the entire appeals process has run its course. This is so because higher courts, with the help of capable legal teams on appeal, often find that new evidence throws a different light on the matter; that prosecutorial misconduct in the presentation of the case, inappropriate actions, decisions or instructions on the part of the judge, misrepresentation on the part of witnesses or ineffective assistance on the part of the defense counsel require that, in the interests of justice, a new and fair trial is required.
It is this failing that provides the most egregious insult to the end of justice, in my view, because shows such as yours, accepting as you clearly did the prosecution theory as fact, choose to close the book with a declaration of guilt or innocence rather than examining the tougher questions about the rights of the accused and the propriety and fairness of the process.
-- Holding that thought in mind, then, let's go to the specifics. And I'll pose my comments and questions in the order that the inciting remark appears in your program:
- Comment:
"Hollywood's Unlikely Hero." Really? Even you have to own that this is a cheap and inappropriate shot. I understand it helps raise your profile to drag Hollywood into the discussion whenever you can, but this must embarrass even you. A few names connected with show business, much as they provide glitz for your hype-machine, do not demonstrate ownership of a case you yourselves describe as having garnered "worldwide interest."
- Comment:
I'll give only a passing nod to the left-baiting references, "a who's who of the celebrity left" and "his supporters are a kind of radical left for the 90's," but ask you to be fair in acknowledging that you failed to include in your derisive litany of his "supporters" the category into which most of the "celebrities" you are so quick to name actually fit: namely, those who make no claim as to Jamal's innocence but believe it is clearly evident that he did not get a fair trial and, even if guilty, deserved one. (It's also quite clear here that you chose not to follow up on my suggestion that you contact Stuart Taylor, Jr., the author of the article in The American Lawyer entitled "Guilty and Framed.")
Of course, having included the above category would have made it much more difficult for you to lump all of those you branded into a single class of "dupes," so I understand why you chose to leave it out. But does that make you proud? I rather suspect including it (or talking to Mr. Taylor) would have also made for a lot more serious work on the part of those to whom you entrust your investigating. And that, I take it, is to be avoided.
- Question:
From what source did your researchers get the assertion that you stated as fact, namely that "Three eyewitnesses... all say they saw Jamal run from across the street and shoot the office in the back."? That is, of course, the prosecution theory. But are you aware of the fact that only one of the eyewitnesses made that statement? And are you further aware that the one eyewitness who made the statement wasn't even noted as being on the scene by another of the same eyewitnesses to whom you make reference? Did your investigation reveal that a defense witness, a prostitute as was Cynthia White (the sole witness to claim she saw Jamal run across and shoot Faulkner in the back), swore that she was approached by police and offered a deal if she would implicate Jamal in the same manner White had?
You see, if you only go to the man who prosecuted the case for your "facts," you sometimes don't get the benefit of the sometimes inconvenient nuances that begin to raise questions about the fairness of the process.
- Question:
"As the officer spun around, he grabbed his revolver and, as he fell to the sidewalk, fired a shot that wounded Jamal in the chest." Another important part of the prosecution theory. Unfortunately, it is contradicted by the trajectory of the bullet through Jamal's body, traveling downward from his upper chest and lodging near his spine, rather than upward, as it would have had to travel had it been fired by the falling, wounded man you describe.
- Comment:
And of course, as you have it, Jamal then "executed" Officer Faulkner, a term used by the prosecutor and the FOP to paint a picture of the "cold-blooded murderer," as he is described by Mrs. Faulkner. Now, in fairness (and here again I give away my naiveté), even in the event the shooting happened in the way the prosecutor theorizes, with Jamal rushing to the defense of his brother who was being, according the witnesses, beaten by Officer Faulkner, does this describe a calculated, premeditated, "cold-blooded" act?
- Comment:
Admittedly a small point, but in a moment of reflective candor you might recognize the significance of it. You note that Jamal "claims he was beaten by police" while protesting the Wallace rally. If you'll go back and look at your script you might be surprised at the preponderance of such qualifiers when commenting upon Weinglass' or Jamal's words and the lack of them when noting the statements of police, prosecutors and Mrs. Faulkner. Then again, given your mind-set, you might not.
- Question:
Other than the clear attempt to bias your audience, what is the value of your statement, after taking pains to make the point that he was speaking in a "sympathetic" documentary, that Jamal's denial of guilt "repeats the only thing he has ever said about the murder"? Other than the fact that this claim is part of the constant FOP drum-beat, it's simply not true. Apparently your investigators failed you again.
- Comment:
"Sam Donaldson goes to the heart of the evidence when 20/20 Wednesday continues." -- "We conducted a four-month investigation and here is what we found." -- "On a cold December day in 1981, Maureen Faulkner buried her husband, Officer Daniel Faulkner. But for 17 years, there has been no closure." Really, fellows, this is theater. The man has been on death row for those 17 years and that is not, despite Mrs. Faulkner's discomfiture, a cushy existence. The campaign for which she is the figurehead and sometimes spokesperson is well financed and politically powerful and is intent on death for Jamal despite significant questions that have yet to be resolved. You presented your audience with the image of a poor, grieving, frightened widow standing alone against the forces of iniquity: the "Free Mumia" campaign. This is journalism of the most yellow stripe.
Mrs. Faulkner "has written a 100-page document"? Really? Just who are these investigators of yours? Mrs. Faulkner is a compelling figure, of course, and the way you presented her makes her seem even more so. It is going a bit far, though, to posit her as legal expert, author and one-woman band in her lonely pursuit, carrying the torch for truth and justice in memory of her slain husband without even a sidelong glance in the direction of the FOP.
And may I note here that I hold no animus toward Mrs. Faulkner, in spite of the things she's said. I wish she could allow this to be put to rest and let the process continue. And I certainly wish she would not allow this issue to be put in personal terms, with those of us who believe that a flawed system failed in this case derided as dupes, publicity seekers and ignorant pawns because we have the temerity to disagree with her (and the Fraternal Order of Police's) evident need for more blood to be spilled without the due process of law having fairly been applied.
- Comment:
While it may be that some of "Jamal's supporters say that the bullet that killed Officer Faulkner was a .44-caliber, not a .38, like the gun found at the scene", it is hardly fair to imply that all do. I certainly don't. Nor is it fair to suggest that this is a prime contention of the defense. As Leonard Weinglass said, the pathologist's note should have been presented to and argued before the jury. That is the job of the defense, one that the original attorney failed to do.
But the point you seemed to want to make as you slalomed your way through this ballistics mess is that the admission that the fatal bullet may be a .38 rather than a .44 might then be somehow probative. It is not. The ballistics tests done have not been able to match Jamal's pistol with the fatal bullet, and to suggest that because the bullet is the same caliber as his pistol it must have been fired by him is a syllogism of the first water. The argument made by many that no ballistics tests were done is overstated and I know Ed Asner wishes he had been less general in his reference. But the point he and many make is essentially correct. The most rudimentary tests were simply not done and there is thus no way to prove that Jamal fired a weapon that night, that his weapon had been recently fired, or that the bullet that killed Officer Faulkner came from his pistol.
- Comment:
Your discussion of the "confession" is carefully crafted. It fails, by the way Sam, to include your own statement to Ed Asner and me at the taping session that you believed the confession story was phony. Perhaps something you've learned since has changed your mind? If so, it would be nice to know what that was.
As it is, your editorial decision to include Gary Bell's expression of remorse for not having remembered to report Jamal's confession until two months later is a nice touch. Your announcer even highlighted it as a lead-in to the break, "Could a police officer forget a murder confession?" What is interesting is that you apparently decided not to mention that Officer Wakshul, even after writing that "the Negro male made no comments" in his report of the event, also "remembered" hearing and then forgetting the confession two months later. But then, I guess it would have been asking the audience to accept a lot to have your announcer declaim at the bumper, "Could two police officers forget the same murder confession and coincidentally remember it two months later?"
Priscilla Durham, who also claimed two months later to have heard the confession at the time and never bothered to mention it to the police because "she didn't think they cared to hear it from her" (according to the FOP) did in fact testify in court as you suggest. She also claimed that her supervisor had written it down. But what was introduced in court was an unsigned, typewritten version of the statement which she said she'd never seen before. And good old Judge Sabo didn't find that at all troubling. The other person you say now says he heard it didn't even testify at the trial. Were you aware of that?
And, of course, if you get into deep water with the conflicting stories they offer even now, you can always fall back on the old "rejected by two appeals courts" defense.
- Comment:
Yup, Singletary's and some of the other witnesses' (defense and prosecution) descriptions of the events at the scene are confusing and perhaps confused. Maybe even confabulated. But it's worth noting that Singletary is not the only one who says the police told him that what he was reporting on the night of the incident was not acceptable to them. And given the history of the police in that district - at that point and since - I think a journalist might want to look a bit deeper into this story than you have here.
As Weinglass says, "The jury should have heard from Singletary." And Jones. And others.
- Comment:
"None of these holes in the defense scenario seem to bother Mumia Abu-Jamal's supporters." I would agree that for some it is as much a social and political cause as it is a case with demonstrable facts that can be proved or disproved. But I would point out that much of the cynicism and distrust visible on their part is a result of just the kind of simplistic and one-sided reporting that you are responsible for in this excuse for an investigation. And, given the fact that the holes in the prosecution theory don't seem to have bothered you a great deal, you prove yourself no moral exemplar by the observation.
- Comment:
The suggestion that Ed and I "admit[ted] to a larger purpose behind [our] interest in his case" misstates the facts and is insulting. I openly oppose the death penalty in all cases. If guilt is clear and the condemned appears to have gotten a fair trial I have no problem acknowledging that, while still maintaining that life without parole is more fair, more humane, more equitable, less expensive and less likely to cause the death of an innocent, mentally disturbed or inappropriately convicted (as in a child) defendant. I don't involve myself in cases on a basis with which I do not agree for the purpose of advancing the abolitionist cause and I resent your having implied that I do. --
As I once suggested to a colleague of yours who did an even worse piece on this case (though arguably less harmful because to a smaller audience), a legitimate subject for inquiry might in fact be why so many of the disenfranchised in our society find themselves willing to join a cause like this without a full knowledge of the facts at its core. But when one does as you did and simply take a cursory look at the facts, accept the scenario propounded by the authorities and selectively pick at odds and ends of the other view with an eye toward impeaching the integrity of anyone and everyone who expresses concern, you heap injustice upon injustice and feed the anger of those who have come to believe that the powerful are all in league for their own ends and the less fortunate be damned.
You apparently find Joe McGill and Ed Rendell convenient and credible spokespeople while holding Weinglass in contempt. But a fair presentation would have allowed a more balanced view to be expressed. You seemed to enjoy pressing Weinglass on points in which you thought you detected weakness, but I heard no questions to McGill about the Philadelphia District Attorney's office's practice of excluding blacks from their juries - a fact exposed since the Jamal case. I heard no questions about the federal investigation of the Philadelphia Police, before and at the time of the trial, which concluded that members of the force were guilty of, among other things, brutality, perjury, intimidation of witnesses and corrupt relations with prostitutes resulting in kickbacks and favors, all issues relevant to Jamal's trial. Nor was there anything about Judge Sabo; his character, biases, standing in the legal community or track record. These and other queries pertinent to the central question of a fair trial should, it seems to me, have been part of your "four-month investigation" if it were to have any validity.
Jamal may have shot Officer Faulkner. I don't know. But the cognizable facts do not in any case prove that he committed premeditated murder. He may well have run across the street yelling, in defense of his brother, as some suggest. He may have been brandishing a weapon. Officer Faulkner may have turned and fired first, shooting him as he approached and been gunned down afterward. There may have been another man in the car, as some have suggested, who did the shooting, or part of it, and ran. All of it happened in split seconds in the dark in the early hours of the morning and many of the witnesses have given conflicting versions of the event. And many have changed their stories, including some of the "eyewitnesses" the prosecution theory you have taken so to heart relies upon. You were not there. Nor was I. Nor were the prosecutors. That's why a fair trial based upon a fair presentation of the facts before a fair judge and a fairly selected jury is essential.
I believe an objective reading of this case shows that this did not occur.
I don't, personally, hold Mumia Abu-Jamal as a hero. I don't know the man. He is obviously very intelligent and very articulate, and he just as obviously holds views that do not endear him to the establishment. Nor do they make him a character with whom the general public is likely to easily find sympathy. But it is a craven act to use this man and this case in a manner that pretends to journalism but in fact only more deeply ingrains the prejudices already searing the soul of our society. Better not to do it at all than to do what you have done. The pretense of fairness and objectivity combined with the charade of serious investigation add up to a poisonous mix that will, I hope, soon be repudiated by journalists worthy of the name who are interested in reestablishing the credibility of their profession.