On the final day of testimony, Abu-Jamal's lawyer discovered Police Officer Gary Wakshul's official statement in the police report from the morning of Dec. 9, 1981. After riding with Abu-Jamal to the hospital and guarding him until treatment for his gunshot wound, Wakshul reported: "the negro male made no comment." This statement contradicted the trial testimony of prosecution witnesses Gary Bell (a police officer) and Priscilla Durham (a hospital security guard), who testified that they had heard Abu-Jamal confess to the shooting, while Abu-Jamal was awaiting treatment at the hospital.
When the defense immediately sought to call Wakshul as a witness, the DA reported that he was on vacation. Judge Sabo denied the defense request to locate him for testimony, on grounds that it was too late in the trial to even take a short recess so that the defense could attempt to locate Wakshul. Consequently, the jury never heard from Wakshul, nor about his contradictory written report. When an outraged Abu-Jamal protested, Judge Sabo replied: "You and your attorney goofed."
Wakshul’s report from December 9, 1981 is just one of the many reasons cited by Amnesty International for their conclusion that Bell’s and Durham’s trial testimonies were not credible. There are many other problems that merit a closer look if we are to determine how important Wakshul’s 1982 trial testimony could have been.
The alleged "hospital confession," in which Abu-Jamal reportedly shouted, "I shot the motherf***er and I hope he dies," was first officially reported to police over two months after the shooting, by hospital guards Priscilla Durham and James LeGrand (February 9, 1982), police officer Gary Wakshul (February 11), officer Gary Bell (February 25), and officer Thomas M. Bray (March1). Of these five, only Bell and Durham were called as prosecution witnesses.
When Durham testified at the trial, she added something new to her story which she had not reported to the police on February 9. She now claimed that she had reported the confession to her supervisor the next day, on December 10, making a hand-written report. Neither her supervisor, nor the alleged handwritten statement were ever presented in court. Instead, the DA sent an officer to the hospital, returning with a suspicious typed version of the alleged December 10 report. Sabo accepted the unsigned and unauthenticated paper despite both Durham's disavowal (because it was typed and not hand-written), and the defense's protest that its authorship and authenticity were unproven.
Gary Bell (Faulkner's partner and self-described "best friend") testified that his two month memory lapse had resulted from his having been so upset over Faulkner’s death that he had forgotten to report it to police.
Later, at the 1995 PCRA hearings, Wakshul testified that both his contradictory report made on December 9, 1981 ("the negro male made no comment") and the two month delay were simply bad mistakes. He repeated his earlier statement given to police on February 11, 1982 that he "didn't realize it [Abu-Jamal’s alleged confession] had any importance until that day." Contradicting the DA’s assertion of Wakshul’s unavailability in 1982, Wakshul also testified in 1995 that he had in fact been home for his 1982 vacation, and available for trial testimony, in accordance with explicit instructions to stay in town for the trial so that he could testify if called.
Just days before his PCRA testimony, undercover police officers savagely beat Wakshul in front of a sitting Judge, in the Common Pleas Courtroom where Wakshul worked as a court crier. The two attackers, Kenneth Fleming and Jean Langen, were later suspended without pay, as punishment. With the motive still unexplained, Dave Lindorff and J. Patrick O’Connor speculate that the beating may have been used to intimidate Wakshul into maintaining his "confession" story at the PCRA hearings.
Regarding Abu-Jamal’s alleged confession, Amnesty International concluded: "The likelihood of two police officers and a security guard forgetting or neglecting to report the confession of a suspect in the killing of another police officer for more than two months strains credulity."
Conclusion: the DA Still Wants to Execute
“The urgent need for a civil rights investigation is heightened because the DA is still trying to execute Mumia,” emphasizes Dr. Suzanne Ross, an organizer of the campaign seeking an investigation. This past March, the US Supreme Court declined to hear Abu-Jamal’s appeal for a new guilt-phase trial, but the Court has yet to rule on whether to hear the appeal made simultaneously by the Philadelphia District Attorney’s office, which seeks to execute Abu-Jamal without granting him a new penalty-phase trial.
In March, 2008, the Third Circuit Court affirmed Federal District Court Judge William Yohn's 2001 decision "overturning" the death sentence. Citing the 1988 Mills v. Maryland precedent, Yohn had ruled that sentencing forms used by jurors and Judge Albert Sabo's instructions to the jury were potentially confusing, and that therefore jurors could have mistakenly believed that they had to unanimously agree on any mitigating circumstances in order to consider them as weighing against a death sentence. According to the 2001 ruling, affirmed in 2008, if the DA wants to re-instate the death sentence, the DA must call for a new penalty-phase jury trial. In such a penalty hearing, new evidence of Abu-Jamal's innocence could be presented, but the jury could only choose between execution and a life sentence without parole.
The DA is appealing to the US Supreme Court against this 2008 affirmation of Yohn’s ruling. If the court rules in the DA’s favor, Abu-Jamal can be executed without benefit of a new sentencing hearing. If the US Supreme Court rules against the DA’s appeal, the DA must either accept the life sentence for Abu-Jamal, or call for the new sentencing hearing. Meanwhile, Mumia Abu-Jamal has never left his death row cell.
How You Can Help