From zodiac@gold.interlog.comMon Jun 12 23:29:00 1995 Date: Mon, 12 Jun 1995 16:30:42 -0400 (EDT) From: zodiac Reply to: marxism@jefferson.village.virginia.edu To: pnews-l@sjuvm.stjohns.edu, psn@csf.colorado.edu, iww-news@igc.apc.org, marxism@jefferson.village.virginia.edu Subject: JAMAL CASE: Legal arguments Doug Henwood asked for someone to give LEGAL DETAILS of the Mumia Abu-Jamal case. I, too, had found them to be scattered inconsistently over several articles floating around cyberspace. But I need some straight facts for the story I'm writing. This afternoon, the Partisan Defense Committee (in Toronto) passed me the following document -- a petition from Jamal's lawyers. It is filled with facts. I immediately scanned it in. Hope you find it useful. Ken. K.K.Campbell P.S. Please forgive errors as being my own fault during transcription. -- start here -- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, Respondent, V. MUMIA ABU-JAMAL, a/k/a Wesley Cook, Petitioner CRIMINAL DIVISION Nos. 1357-1358 (January Sessions, 1982) PETITION FOR POST-CONVICTION RELIEF ----------------------------------- To The HONORABLE JUDGES OF THE CRIMINAL COURT: Petitioner MUMIA ABU-JAMAL , through undersigned counsel, and upon the Exhibits and the Memorandum of Law submitted herewith, respectfully petitions this Court for relief pursuant to 42 Pa. C.S. section 9541 et. seq. ("The Post-Conviction Relief Act" or "PCRA!'), on grounds that his restraint and sentence of death results from a conviction and sentence that was obtained in violation of the Constitution of this Commonwealth and of the Constitution of the United States. In support of this petition, Petitioner alleges as follows: PRELIMINARY STATEMENT 1. Petitioner Mumia Abu-Jamal ("Mr. Jamal") is presently incarcerated at SCI-Greene, and is awaiting execution of a death sentence upon a conviction of murder in the first degree and possession of an instrument of a crime. 2. By this petition, Mr. Jamal moves to vacate the judgment of conviction and sentence entered on May 25, 1983, and requests a new trial on both the guilt and penalty phase. Mr. Jamal was tried by a jury, Judge Albert Sabo presiding, and convicted of murder in the first degree and possession of an instrument of a crime on July 2, 1982. After a sentencing hearing on the following day, the jury voted to impose the penalty of death. (7/3/82, Tr. 98) Post-trial motions were filed and denied. (5/25/83, Tr. 1-157) The court, through Judge Sabo, formally imposed the death sentence on May 25, 1983. (Id. at 163-66) Mr. Jamal then pursued a direct appeal, which culminated in a decision by the Pennsylvania Supreme Court affirming his conviction and death sentence. Com. v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), reh'g denied, 524 Pa. 106, 569 A.2d 915 (1990). For unknown reasons, two justices recused themselves from consideration of the appeal. 3. Thereafter, Mr. Jamal submitted an application for certiorari review with the United States Supreme Court, which was denied. Abu-Jamal v. Pennsylvania, 498 U.S. 881 (1990). Mr. Jamal then filed a petition for rehearing predicated on the Supreme Court's grant of certiorari review in cases involving similar issues, which was denied. Abu-Jamal v. Pennsylvania, 498 US. 993 (1990). Mr. Jamal's motion for leave to file a second petition for rehearing was also denied. Abu-Jamal v. Pennsylvania, 501 U.S. 1214 (1991). 4. Mr. Jamal was represented at trial by court-appointed counsel, Anthony Jackson. He was represented on appeal, also by appointment, by Marilyn J. Gelb. 5. On June 1, 1995, Governor Thomas Ridge signed a warrant for Mr. Jamal's execution during the week of August 13, 1995. 6. This is Mr. Jamal's first application for collateral relief pursuant to the Post-Conviction Relief Act. INTRODUCTORY STATEMENT 7. Petitioner Jamal was convicted of a crime he did not commit and sentenced to death based on his political views and history. 8. Through this proceeding, Mr. Jamal will prove that his conviction was the product of widespread police and prosecutorial misconduct, countenanced and advanced by a hostile and biased trial court which stripped him of his ability to raise a defense and then violated his fundamental rights to a fair and impartial trial. 9. Police coerced witnesses to testify against Mr. Jamal, rewarded those who did, concealed exculpatory evidence of his innocence, forcing at least one exculpatory witness to give a false statement and leave the jurisdiction for fear of police harassment. Not satisfied, a false "confession" story was manufactured months later as a result of Mr. Jamal's filing a complaint against the police. The police witness who could have rebutted that false claim went "on vacation" and was thus unavailable for trial. Testimony was adduced from prosecution experts who tailored their scientific tests to preclude the possibility of Mr. Jamal's innocence and offered speculation and hypothesis that, it turns out, was utterly false. None of this was rebutted at trial due to the court's refusal to provide Mr. Jamal with minimal funds to launch an investigation and hire experts in firearms and pathology and due to the gross ineffectiveness of his stand-in counsel. 10. For its part the trial court seated a jury from which blacks were unconstitutionally excluded through the prosecution's use of racially-biased peremptory challenges, then (in Mr. Jamal's absence) removed the only juror selected by Mr. Jamal and replaced her with a white juror who said he was biased against him. The court denied Mr. Jamal the right to represent himself, forced an unprepared, unwilling and incompetent stand-in attorney to serve as Mr. Jamal's counsel, and excluded Mr. Jamal from key portions of the trial. The court refused to grant a continuance to allow a critical defense witness to be called to rebut the false confession claim, barred cross-examination of a prosecution witness on his probationary status for a felony conviction, and refused to permit the defense to show that the key prosecution witnesses had a motive to lie due to police rewards and threats. 11. Then the court allowed the prosecution to make egregiously improper and unfair jury arguments at both the guilt and penalty phases, and allowed the unconstitutional use of Mr. Jamal's political activities and statements from more than a decade earlier to convince the jury that death was the appropriate sentence. 12. Because of the apparent scope of the Commonwealth's misconduct and suppression of evidence in his case, Mr. Jamal seeks a new trial. He also moves for extensive discovery, the right to amend this Petition, and a protective order. For any factual issues that must be resolved, the court should order an evidentiary hearing. SUMMARY OF THE EVIDENCE 13. Philadelphia Police Officer Daniel Faulkner was shot at approximately 3:52 am. on December 9, 1981, in downtown Philadelphia on Locust Street near the intersection with 13th Street. He died approximately one hour later at Jefferson University Hospital as a result of the gunshot wound. (6/25/82, Tr. 43) Mr. Jamal was also found at the scene. He had been critically wounded by a gunshot and was sitting in a pool of blood on the curb approximately four feet from where Officer Faulkner had fallen. (6/2/82, Tr. 3.5; 6/19/82, Tr. 117) Mr. Jamal was arrested and also taken to Jefferson University Hospital for extensive surgery. (6/28/82, Tr. 74) The prosecution claimed Mr. Jamal shot Officer Faulkner in the back and then stood over him and shot him in the face. 14. At the time, Mr. Jamal was a well-known award-winning journalist and activist in the Philadelphia area. Thirteen years earlier, at 15 years of age, Mr. Jamal had been one of the founding members of the Philadelphia Chapter of the Black Panther Party; and by late 1969 he had become its communications secretary. In the mid-1970's, Mr. Jamal turned to the profession of journalism, and became known throughout Pennsylvania for his journalistic activities, including news broadcasts on National Public Radio, the Mutual Black Network, the National Black Network, and his own talk show on -FM. In late 1980, at age 26, Mr. Jamal was elected chair of the Philadelphia Chapter of the Association of Black Journalists. The January 1981 issue of Philadelphia Magazine named Mr. Jamal "one of the people to watch in 1981." (Exh. 27) Mr. Jamal remains an accomplished and controversial author. His writings have appeared in a number of prestigious publications, including the Yale Law Journal. In May 1995 his book, Live From Death Row, was published by the Addison-Wesley Publishing Company. 15. Because of his legal and constitutionally-protected political affiliation with the Black Panther Party and his activities as a journalist and activist critical of Mayor Rizzo and the police on issues of race, police brutality and other social issues, Mr. Jamal became a well-known object of police bias and animus. Since his youth, Philadelphia police maintained continuing surveillance of Mr. Jamal as a vocal black activist. (Cooperstein Aff., Exh. 12) Despite their constant scrutiny, police found no basis for linking Mr. Jamal to any criminal activities during those years. 16. At trial, the Commonwealth case had three elements: (i) three eyewitnesses who claimed to identify Mr. Jamal as Officer Faulkner's shooter, (ii) a purported "confession," and (iii) the presence of Mr. Jamal's gun at the scene, allegedly the murder weapon. 17. Examination of the trial record, newly discovered evidence, and new expert analysis of the physical evidence shows that in each of its elements; the Commonwealth case was false, having been twisted to falsely implicate Mr. Jamal. 18. Due to Commonwealth misconduct and the court's rulings, the true facts of the case -- that Mr. Jamal was shot by Officer Faulkner as Mr. Jamal approached the scene, and that a third black male then shot Officer Faulkner and fled the scene -- were suppressed and not established at trial. 19. The Identification: The initial event from which the shooting unfolded was not in dispute. Officer Faulkner pulled a Volkswagen over for a traffic stop. (6/25/82, Tr. 8.83) Although the number of people in the Volkswagen was unclear, one occupant was Billy Cook, Mr. Jamal's brother. One of the Volkswagen's occupants got out of the car, and a struggle with the officer began. Mr. Jamal approached the scene from a parking lot north of Locust Street. 20. The prosecution's witnesses viewed the events at about 4:00 am through the flashing red lights of Officer Faulkner's police car. There were no lights on that side of the street. The prosecution's only black witness was Cynthia White, whom the other witnesses said was not even there. The white witnesses saw two or three black males and were required to make cross-racial identifications under difficult viewing circumstances. Despite all this, the court refused Mr. Jamal's requests for a line-up identification. (D-3; 1/5/82) 21. The only witness who claimed Mr. Jamal had a gun in his hand was the prostitute, Cynthia White. (6/22/82, Tr. 5.102, 5.515) Ms. White's testimony was false. She had not even witnessed the events at issue and gave her testimony in return for undisclosed police favors. 22. Ms. White claimed she was on the southeast corner of 13th and Locust. No other witness saw her there. Dessie Hightower, a defense witness, observed Ms. White a half block west of 13th Street at that time. (Exh. 21) 23. At the time of trial Ms. White was serving a sentence of 18 months for prostitution in Massachusetts. (6/21/82, Tr. 4.79; 4.85) She had 38 previous arrests for prostitution in Philadelphia, and, as readily acknowledged by the prosecution, had three open cases awaiting trial in Philadelphia when she took the stand. (6/21/82; Tr. 4.80-81) 24. Although the prosecution maintained that Ms. White had not been offered a deal for her testimony, the evidence showed otherwise. The Commonwealth did not disclose that Ms. White had been assigned police "protection" and continued to work the streets as a prostitute with plainclothes police guarding her. (Greer Aff. It 4.B, Exh. 2) Ms. White was arrested at least twice in the weeks after the shooting. (6/21/82, Tr. 4.176) Each time she revised her story. Without explanation, bench warrants against her were not prosecuted. Police told another prostitute, Veronica Jones, that Ms. Jones would be allowed to work the street with impunity like Ms. White if Ms. Jones would testify against Mr. Jamal. (6/29/82, Tr. 135-36) The court excluded this testimony. 25. To buttress Ms. White's false story the Commonwealth called Robert Chobert, a cabdriver in his early twenties. Confirming that Mr. Jamal was shot first, Mr. Chobert admitted he did not see Officer Faulkner shoot Mr. Jamal at any time and simply couldn't account for Mr. Jamal being shot. (6/19/82, Tr. 267-69) On the night of the shooting, he had told police the shooter was a totally different individual than Mr. Jamal: a large, heavy man, about 6 feet and weighing 200 to 225 pounds, standing over Officer Faulkner and appearing to be shooting down at him. (6/19/82, Tr. 234-35) On the stand, Mr. Chobert admitted Mr. Jamal, who at the time weighed only 170 pounds, did not look like someone who weighed 225 pounds and was not "heavy." (6/19/82, Tr. 235) 26. Even more significantly, Mr. Chobert told an arriving police captain that the shooter "ran away." (6/l/82, Tr. 23, 78) Less than an hour later Mr. Chobert repeated that assertion at police headquarters when he told investigators that the person who shot Officer Faulkner ran 30 steps away in the same direction that Hightower reported and on the same side of the street. (6/19/82, Tr. 236; Exh. 15) On the stand, however, Mr. Chobert retracted his initial statement and amended his estimate to just 10 feet, saying that he must have been "mistaken" on the night of the occurrence. (6/19/82, Tr. 237) 27. Mr. Chobert also acknowledged he only heard the shots but never saw a gun or any flashes from a gun barrel. (6/19/82, Tr. 261, 229, 230) Yet Mr. Chobert now insisted Mr. Jamal was the shooter. 28. Mr. Chobert changed his account and his identification to implicate Mr. Jamal. He was clearly susceptible to police pressure because he was on probation for a felony arson conviction because he had agreed to throw a Molotov cocktail at a school for pay. (6/19/82, Tr. 221-22) The trial court determined this evidence of Mr. Chobert's motive to lie could not be presented to the jury. (6/19/82, Tr. 223) Mr. Chobert's two convictions for driving while intoxicated were excluded as well despite his earning his livelihood driving a cab. (6/19/82, Tr. 226) 29. A third prosecution witness, Mark Scanlan, misidentified Mr. Jamal at the scene as the driver of the Volkswagen. (6/25/82, Tr. 8.46, 8.12) Clearly, Mr. Scanlan could not tell which of the black males was which, or who shot the officer. (6/25/82, Tr. 8.8,8.12) Scanlan also contradicted the prosecution theory that Officer Faulkner fell to the ground as the result of the first shot, testifying that Officer Faulkner didn't fall directly down as the result of the first shot. (6/25/82, Tr. 8.33) 30. Scanlan, who had been drinking, admitted there was 'confusion" about what he saw, that his testimony was based on his assumptions about what must have happened, and that he "could have been mistaken" about where the events happened. (Id. 8.33, 37, 65, 68) 31. The 'Confession": The prosecution claimed Mr. Jamal confessed as he lay with his arms handcuffed behind him on the emergency room waiting room floor just after he arrived. Yet Doctor Regina Cudemo was present and did not hear the claimed confession. Instead, she saw an officer apparently kick Mr. Jamal and heard Mr. Jamal moan. (6/29/82, Tr. 24) Doctor Anthony V Coletta, treated Mr. Jamal within five to ten minutes of his arrival. (6/24/82, Tr. 66, 73, 167; Tr. Exh. D - 14) He found Mr. Jamal to be "weak ... on the verge of fainting .. if you tried to stand him up, he would not have been able to stand." (6/28/82, Tr. 28.76) 32. Although Doctor Cudemo did not hear Mr. Jamal say anything, and Doctor Coletta found Mr. Jamal to be barely conscious, two Commonwealth witnesses claimed over two months afterwards that Mr. Jamal was struggling violently and shouted out a confession. These two witnesses were Officer Garry Bell, Officer Faulkner's partner and "best friend," and a hospital security guard, Priscilla Durham, who first denied knowing Officer Faulkner, then admitted talking to him on a number of occasions, sometimes over coffee. (6/24/82, Tr. 44, 38, 156) Ms. Durham acknowledged crying when informed he had died. (6/l/82, Tr. 115) 33. Although Officer Bell made a log report that night and volunteered a statement to homicide detectives the following week (Exh. 24), and Ms. Durham had continuous contact with police, neither one reported hearing the supposed "confession" until months later when they were interviewed by detectives from Internal Affairs who were investigating a complaint initiated by Mr. Jamal for having been abused by the police in the hospital. Bell's interview occurred on February 25, 1982, and Priscilla Durham's sometime in March, 1982. (6/24/82, Tr. 140, 169, 45) 34. All the witnesses agreed that Mr. Jamal was too feeble and weak to walk into the hospital on his own power. Officers were with him without interruption from the moment he entered the hospital. One of those officers, Gary Wakshul, stayed with Mr. Jamal from the time he was driven from Locust Street until the doctors started treating him in the hospital. Wakshul wrote a police report immediately after the episode in which he described being with Mr. Jamal throughout this period, noting "During this time the negro male made no statements." (7/l/82, Tr. 5 1) The jury, however, never heard from Wakshul because the police made him unavailable by sending him "on vacation." 35. THE GUN AND PHYSICAL EVIDENCE: The gun was not shown to have fired the fatal shot. (6/23/82, Tr. 108) In fact, the prosecution either did not perform or did not report sufficient test results to show whether the gun was recently shot or fired the fatal bullet. 36. The Commonwealth's ballistics expert performed tests of the bullet removed from the officer, but these tests were inconclusive as to identification. (6/23/82, Tr. 108) The Commonwealth apparently did not perform certain tests which could have excluded Mr. Jamal's gun. (Fassnacht Aff. I 4.B, Exh. 3) 37. Ballistician George Fassnacht, whom the defense has now retained, has reviewed the police reports and in his opinion the reported police ballistics tests were incomplete, and Mr. Fassnacht would have tried to perform additional tests which might have excluded Mr. Jamal's gun as a possible murder weapon. (Id.) Further, Mr. Fassnacht concludes that based on the existing evidence regarding Officer Faulkner's jacket, he would have expected nitrate residue to be found if Mr. Jamal's gun fired the bullet which hit Officer Faulkner in the back. (Id. 11 4.A) There was none. 38. Although Mr. Jamal was taken into custody immediately after the shooting, no test was employed to determine if he had recently fired a weapon -- a test ordinarily done in such a case. (Id. If 4.D) According to expert Fassnacht, the test for determining if a weapon has been recently fired is a simple one: simply smell the barrel for the unquestionable odor of gunpowder. (Id. I 4.C) Surprisingly, the police, upon recovering Mr. Jamal's gun moments after the shooting, failed to apply this test -- or if they did, covered up the result. (See Exh. 23) 39. Furthermore, the Medical Examiner judged the fatal bullet to be a .44 caliber. (Exh. 26) Mr. Jamal's gun was a.38 caliber pistol. 40. The prosecution argued that Mr. Jamal was shot while allegedly standing over a falling Officer Faulkner. That claim is medically impossible because of the downward trajectory of Mr. Jamal's bullet wound. (Hayes Aff. It 4, Exh. 4) Since trial, Mr. Jamal's counsel has retained the services of an expert pathologist, John A- Hayes, Jr., M.D. Dr. Hayes, a highly qualified medical examiner, has reviewed the medical evidence. In Dr. Hayes's opinion, the prosecution's theory of how Mr. Jamal was shot was medically impossible. (Id.) 41. The prosecution attempted to hide this fact by relying on Dr. Coletta's theory that the bullet could have pursued a downward path as the result of a "ricochet" or "tumble." Dr. Coletta's opinion bespeaks his acknowledged lack of expertise. Dr. Hayes unqualifiedly dismisses such a theory as unfounded based on the medical evidence. (Id.) 42. Moreover, Dr. Hayes contradicts the Medical Examiner's finding that the gunshot wound to Officer Faulkner's back was a contributing cause of death. U. If 6) 43. A defense attack on the medical evidence and the competence of the autopsy would have been buttressed by the fact that the Assistant Medical Examiner failed to detect a second wound in Officer Faulkner's throat during the autopsy. (6/25/82, Tr. 170-74) Then, when this wound was discovered, it was not disclosed to the defense. Nor were the autopsy slides which reflected the second wound. (Id.) 44. Mr. Jamal, an indigent defendant, lacked the resources necessary to test the evidence and challenge the prosecution's expert testimony. The court denied Mr. Jamal's requests for necessary funds to retain and pay experts. (Jackson Aff. 1 4, Exh. 1; 4/29/82, Tr. 10-11; 5/13/82, Tr. 16-18) With expert assistance, Mr. Jamal would have been able to show that the evidence disproved the prosecution's theories, and that the prosecution experts had tailored the scientific tests to preclude the possibility of Mr. Jamal's innocence. 45. The Shooter Flees: No less than four witnesses to the shooting, situated in four different locations on Locust, including a key prosecution witness, reported seeing a person, identified as the gunman who shot Officer Faulkner by one of them, flee before the police arrived. All said he ran east on Locust on the south side of the street in the direction of Camac Street, an alleyway which intersects the street and provides a ready escape route. 46. Dessie Hightower, called by the defense, testified that less than 13-15 seconds after the shooting stopped he saw a person who looked Jamaican (because he wore dreadlocks) running east down the south side of Locust past a residential hotel on the corner where Camac joins Locust. (6/28/82, Tr. 126-127, 149-50, 152) Police demanded that Hightower take a polygraph test on the issue of his seeing the shooter flee. Hightower swears he took the test and passed. (Hightower Aff., Exh. 5) The defense was never apprised of that fact. 47. As described above, witness Robert Chobert initially reported that the shooter ran away, or ran thirty steps (about the distance to Camac Street), but recanted this story-y under police pressure. (6/l/82, Tr. 23, 78; 6/19/82, Tr. 236-37; Exh. 15) 48. Veronica Jones, called by the defense, also told homicide investigators during her initial interview that one or more people ran from the scene ("sort of jogging"). (Exh. 22) After the gunfire stopped she recalled seeing substantially what Mr. Chobert and Hightower had reported: someone running in an easterly direction on the south side of Locust. However, after being arrested, questioned for five hours, and offered a deal, Ms. Jones denied on the stand ever telling the interviewing detectives anything about anyone fleeing the scene. (6/29/82, Tr. 99, 106) This was after police told her she could work the street with impunity like Cynthia White if she implicated Mr. Jamal. (6/29/82, Tr. 135-36, 129) The trial court excluded this testimony. (6/30/82, Tr. 4) 49. Debbie Kordansky, a resident of the St. James Hotel which overlooked the scene of the shooting, reported hearing gunshots between 3:45 and 4:00 am. Shortly thereafter, she looked out her window and 'saw a man running on the south side of Locust Street." (Exh. 18) 50. In all, two people to the west and behind the police car, one person to the east and in front of the police car, and one person north and high above the scene, all reported seeing someone flee down the south side of Locust after the shooting. No follow-up investigation of these claims was ever done. On the contrary, police coerced witnesses to recant that testimony. 51. THE SUPPRESSED EVIDENCE: Police engaged in widespread efforts to suppress evidence favorable to Mr. Jamal. 52. New evidence reveals that another witness was intimidated by the police so severely that he left Philadelphia prior to trial for fear of police harassment. This witness, William Singletary, reported that Mr. Jamal was not the shooter and that the true shooter was a third black male who fled the scene. He also saw that Cynthia White was not at the scene during the shooting, but arrived later. He was forced by police to sign a false police statement that he did not see anything. 53. Another witness, Robert Harkins, was driving past in his taxicab and saw the shooter, who was "taller" and "heavier" than Officer Faulkner. (Exh. 17) Mr. Harkins was shown a photo array, but that fact was never revealed to the defense. Apparently Mr. Harkins could not identify Mr. Jamal as the shooter, since he was not called as a trial witness by the Commonwealth. Mr. Harkins was also told not to talk to the defense. (Buechler Aff., Exh. 6) 54. As discussed above, police coerced witnesses White, Jones and Chobert, made Officer Wakshul unavailable for trial, and suppressed the Hightower polygraph. Police did not disclose the deal made to protect Ms. White while she worked as a prostitute. Nor did police disclose their five hour interview of Veronica Jones in January 1982, in which they offered her the same deal. 55. Philadelphia police conducted surreptitious surveillance of Mr. Jamal from his youth as a member of the Black Panther Party. Copies of reports were maintained in police files. This evidence of police bias against Mr. Jamal was not turned over to the defense. Further, these files are evidence that despite the constant scrutiny of Mr. Jamal by the police he engaged solely in constitutionally protected speech and not in any criminal activity. (Cooperstein Aff., Exh. 12) 56. Even to this day, as Mr. Jamal has prepared this Petition, the Commonwealth maintains unlawful, intrusive surveillance of Mr. Jamal. The Commonwealth has interfered with and intruded into Mr. Jamal's privileged communications with counsel. The Attorney General has now acknowledged that classic legal privileged correspondence from Mr. Jamal's legal team, including counsel's strategy memos, were copied and maintained in the Commonwealth's files. (Krakoff Aff., Exh. 13) 57. Because of the Commonwealth's pervasive concealment and interference with the evidence in this case, Mr. Jamal seeks a protective order to prevent the Commonwealth from harassing, inducing, intimidating or coercing potential witnesses, experts, or investigators in this matter, or otherwise communicating with such witnesses about this case, without prior notice to and the presence of Mr. Jamal's counsel. SUMMARY OF THE PROCEEDINGS 58. Officer Faulkner's death and the charges against Mr. Jamal, a prominent black journalist and activist, sparked widespread media coverage and polarized Philadelphia. At the first pre-trial hearing, Judge Ribner commented: "I know there are certain cases that have explosive tendencies in this community, and this is one of them." (1/5/82, Tr. 66) Of approximately 80 jurors in the' jury pool, all but seven prospective jurors were familiar with the media coverage of the case. (6/9/82, Tr. 105; 6/10/82, Tr. 4.19; 6/11/82, Tr. 5.19; 6/15/82, Tr. 19; 6/16/82, Tr. 378) 59. Faced with charges of killing a police officer, Mr. Jamal's efforts to prove his innocence were frustrated. Before trial, Mr. Jamal's counsel charged that the prosecution was hampering the defense by intimidating witnesses. (4/29/82, Tr. 14-15; 34) As discussed above, evidence revealed at trial and since confirms that the Commonwealth deliberately suppressed the true circumstances of shooting by coercing and threatening witnesses and failing to disclose the use or results of polygraph and photo identifications. Although the court had previously granted the prosecution the right to photograph Mr. Jamal in the hospital and thus use the photographs to assist witnesses in their identification (D-1; 12/21/82), the court denied Mr. Jamal the right to a fair and non-suggestive line-up. (D-3; 1/5/82) 60. Mr. Jamal petitioned the court to appoint four experts -- an investigator, photographer, pathologist and ballistician. (D-4 through D-7; 1/20/82) The court authorized Mr. Jamal to employ these experts, but allowed only $150 in expenses for each expert, and repeatedly refused to authorize any additional funds. (Id.; Jackson Aff. @ 4, Exh. 1; 4/29/82, Tr. 10-11; 5/13/82, Tr. 16-18) Although police conducted over 100 witness interviews, the addresses and phone numbers of the witnesses were deleted from the interview reports provided to the defense. The deletion of this critical information made it virtually impossible to locate most of these witnesses. The court denied Mr. Jamal's requests for this additional information. (Jackson Aff. p4, Exh. 1; see 4/29/82, Tr. 14-15) 61. On May 13, after his repeated requests for resources for assistance were denied, Mr. Jamal orally petitioned the court to be permitted to represent himself. (5/13/82, Tr. 53) The court immediately granted the request, and appointed Mr. Jackson as back-up counsel. Prior to the pre-trial hearing on Mr. Jamal's Motions to Suppress, Mr. Jamal restated his desire to represent himself. Mr. Jamal also advised the court that he did not want Mr. Jackson to serve as backup counsel and wanted to be assisted by one John Africa, a non-lawyer. The court permitted Mr. Jamal to represent himself, but denied the request for assistance by Mr. Africa, instead ordering Mr. Jackson to serve as backup counsel over Mr. Jamal's and Mr. Jackson's protest. (6/l/82, Tr. 2-38) 62. Mr. Jamal served as his own counsel in the Motion to Suppress hearing, in which he questioned fifteen witnesses. Mr. Jamal also served as counsel during the first two days of jury selection, without incident. He questioned 23 venire members, successfully challenging two for cause, defeating a government challenge for cause, and also exercising three peremptory challenges. (6/7/82, Tr. 149, 163, 174; 6/8/82, Tr. 46, 56, 69, 136) 63. At the start of the third day of voir dire, the court precipitously ruled that Mr. Jamal had to turn voir dire over to Mr. Jackson, or the court would take it over. (6/9/82 Tr. 18) Mr. Jamal refused to waive his right to self-representation, and the court took over voir dire. (Id. 3.19) When Mr. Jamal and Mr. Jackson refused to provide the court with proposed questions, the court held Mr. Jackson in contempt and sentenced Mr. Jackson to 6 months imprisonment. (Id. 22) Then, under protest, Mr. Jamal gave in and agreed to have Mr. Jackson conduct voir dire on his behalf (Id. 105-08) 64. During the next several days, Mr. Jamal raised objections to the court's rulings, requesting to have his pro se rights restored and to have John Africa assist him at counsel table. (6/11/82, Tr. 199; 6/16/82, Tr. 498; 6/17/82, Tr. 48-60) Ultimately, the court suggested that Mr. Jackson make an emergency appeal to the Supreme Court for guidance on the question of his role in the case. (6/17/82, Tr. 116) Mr. Jackson stated he could not appeal because Mr. Jamal was still counsel of record. (Id. 118) The court stated: "Well, if you're asking me to remove him, I'll remove him. I'll make it easy for you." (Id.) Ultimately the Supreme Court denied Mr. Jackson's appeal to permit Mr. Jamal to represent himself, to remove Mr. Jackson as backup counsel, and to permit John Africa to assist Mr. Jamal. 65. When proceedings next resumed in open court, Mr. Jamal spoke to protest the denial of his right to self representation. The court thereupon ordered that Mr. Jamal be removed from the courtroom. (W. 2.90-91) 66. During the course of jury selection, the prosecution used eleven peremptory challenges to excuse black jurors. The resulting jury included only three black jurors. One of these was removed, outside Mr. Jamal's presence and without his knowledge, to be replaced by a white alternate juror. This black juror, Jeannie Dawley, was the only juror to be selected during the period when Mr. Jamal was allowed to conduct voir dire on his own behalf. (6/7/82, Tr. 187) The white alternate who replaced Ms. Dawley, Robert Courchain, had stated his bias against Mr. Jamal. (6/16/82, Tr. 393-95) 67. Mr. Jamal will prove that at least three white jurors, including the juror ultimately selected as foreman, formed a grouping which met and deliberated throughout the trial, apart from the black jurors. (Hawkins Aff., Exh. 10) 68. Although Mr. Jamal sought to represent himself and had prepared the defense case for trial, he was not even present for large portions of the trial because the court repeatedly ordered his exclusion. (@ Point VI, @) During these periods of exclusion, the court did not provide Mr. Jamal any means to monitor the proceedings or to consult with Mr. Jackson while court was in session. 69. Because Mr. Jamal was precipitously denied his right to self-representation, his unwanted backup counsel, Mr. Jackson, was thrust into the role of trial counsel against his own wishes, without adequate preparation. He even failed to interview defense witnesses before they took the witness stand. (6/29/82, Tr. 137; Jackson Aff. It 5, Exh. 1) 70. In addition to Mr. Jackson's ineffective performance, the court's rulings precluded Mr. Jamal from presenting a defense. As discussed, the officer who was with Mr. Jamal from the time of his arrest until his hospital treatment began stated in a police interview that Mr. Jamal had made no comments. The trial court refused to grant a continuance to permit the witness to be located and testify. (Id. 46-48) 71. The court also excluded Veronica Jones' testimony that Sixth District police had offered to allow her to avoid arrest if she would testify that she saw Mr. Jamal shoot the officer intentionally, and that police told her a similar deal had been struck by Cynthia White. (6/29/82, Tr. 129-35) Further, the court refused to allow Mr. Jamal to show that Commonwealth witness Chobert had been convicted of committing arson for hire and was on probation for that offense. (6/19/82, Tr. 216-23) 72. In protest of the court's rulings denying his rights to represent himself, to select a jury of his peers, and to face and examine witnesses, Mr. Jamal refused to take the stand to testify in his defense. (7/l/82, Tr. 41) 73. In closing argument, the prosecutor ridiculed Mr. Jamal's efforts to assert his Sixth Amendment right to self-representation and effective assistance of counsel of his choice. (7/l/82, Tr. 14748) The prosecutor also made veiled negative references to Mr. Jamal's exercise of his. Fifth Amendment right not to testify. (Id. 172) The prosecutor vouched for witness Robert Chobert, and falsely stated that there was no evidence Mr. Chobert had a motive to lie, even though the prosecutor had caused the exclusion of evidence Mr. Chobert was on probation and therefore had such a motive. (Id. 182-83) The prosecution also referred to evidence not in the record to bolster the testimony of Priscilla Durham. (Id. 173) Finally, the prosecutor asked the jury in this high profile case which had polarized the city to convict Mr. Jamal because the people of Philadelphia demanded it. (Id. 172, 187) 74. The jury was charged and began deliberations on July 2, 1982, the Friday of the July 4 weekend. During the day, the jury requested to be reinstructed on the elements of first and third degree murder and voluntary manslaughter. (7/2/82, Tr. 54) The jury returned a verdict of guilty on the first degree murder and possession counts. (Id. 68-69) 75. On the following day, the Saturday of the July 4th weekend, the jur-y heard evidence regarding the penalty. Mr. Jackson made no attempt to prepare for the penalty phase hearing. (Jackson Aff. If 7, Exh. 1) At the beginning of the defense evidence, the court permitted Mr. Jamal to make a statement to the jury that he was innocent, and to protest the denial of his rights throughout the trial. (7/3/82, Tr. 10-16) 76. Then the court permitted the prosecutor to "cross-examine" Mr. Jamal on his 'jury statement. The prosecutor, over objection, asked questions regarding Mr. Jamal's courtroom behavior such as: "What is the reason you did not stand when Judge Sabo came into the courtroom?" (7/3/82, Tr. 20) He went on to question Mr. Jamal's teenage political views as a member of the Black Panther Party in the 1960's. (Id. 21-23) 77. In summation, the prosecutor, over numerous objections, exploited this improper line of crossexamination to argue that Mr. Jamal's political history and confrontations with the court justified a death sentence. (Id. 66-70) Over objection, the prosecution falsely suggested that the jury would not be responsible for the sentence because it would ultimately be decided on appeal. (Id. 71-72) The prosecution further violated Mr. Jamal's Fifth Amendnent right not to testify. (Id. 59-60) SUMMARY OF GROUNDS FOR RELIEF 78. The legal grounds upon which relief is requested are as follows: Trial Errors ------------ I. The Commonwealth withheld materially favorable evidence from the defense, and knowingly used false evidence, all of which rendered the proceedings fundamentally unfair. The evidence withheld and the false evidence used include the following: (1) statements by an eyewitness indicating that another individual, not Mr. Jamal, was the shooter, that the actual shooter fled the scene, and that a critical prosecution eyewitness was actually not present at the scene; (2) evidence of the failure of a prosecution eyewitness to identify Mr. Jamal in a photo array; (3) the favorable results of a polygraph examination administered to an eyewitness called by the defense which corroborated the claim that the actual shooter fled the scene; (4) extensive police files concerning Mr. Jamal's political activities and affiliations which expose law enforcement's deep-seated bias against him and show that Mr. Jamal engaged in no criminal conduct during the years he was closely surveilled; (5) evidence of intimidation, special deals and favors, and coercion which was applied to numerous witnesses, causing one eyewitness to flee the jurisdiction, causing Cynthia White to give false testimony, causing two eyewitnesses to retract their claim that they saw the shooter flee, and causing a police officer witness to take an unauthorized vacation in order to prevent his availability at trial; and (6) evidence of incompetency in the Medical Exarniner's autopsy report. II. The court deprived Mr. Jamal of his fundamental right to present a defense in the following ways: (1) Mr. Jamal was effectively barred from presenting crucial evidence that he had not made any inculpatory statements. Consequently, the prosecution's claim that Mr. Jamal had confessed to the shooting of Officer Faulkner -- a confession that on its own terms is suspect -- remained unrebutted. (2) Mr. Jamal was barred from examining Veronica Jones and showing that prosecution witness Cynthia White -- perhaps the most critical eyewitness for the prosecution -- was coaxed and coerced to testify. (3) Mr. Jamal was prevented from showing that another prosecution witness was susceptible to police pressure to change his account of events because he was on probation and because of prior drunk driving convictions. (4) Because of his indigence and the court's unwillingness to authorize funding for investigation and expert witnesses, Mr. Jamal was unable to present expert testimony which would have established that the prosecution's theories were false. The cumulative effect of the court's actions was to undermine the adversarial process to such an egregious degree that the resulting conviction was stripped of any modicum of reliability. III. The court impermissibly held two in camera conferences outside Mr. Jamal's presence, at a time when Mr. Jamal's pro se status was still intact, wherein Mr. Jamal's pro se status was discussed, an African-American juror selected by Mr. Jamal was removed, a question of juror taint was explored, and the admissibility of certain police officer testimony was considered. IV. The conflicts between Mr. Jamal and his court-appointed attorney were so pervasive, divisive, and intense that his right to effective assistance of counsel must be presumed to have been violated; and further, that these conflicts in fact led to a constitutionally inadequate defense. V. The court prematurely and unjustifiably stripped Mr. Jamal of his right to proceed as his own attorney, and instead imposed upon him a constitutionally ineffective attorney. VI. The court unjustifiably banished Mr. Jamal on numerous occasions from the trial proceedings, thereby violating his right to self representation, his right to be present at his own trial, his right to assist in his ow-n defense, and his right to confront the prosecution's witnesses. VII. The prosecutor's guilt-phase closing argument exceeded the bounds of propriety and violated Mr. Jamal's right to due process. VIII. The court impermissibly responded to a juror's inquiry, which ultimately led to that juror's removal, without notifying the defense of that inquiry. IX. New evidence establishes that intentional racial discrimination infected the selection of the jury- X. The jury pool from which the jur-y was selected was not a product of a random cross-section of the community. XI. Certain jurors engaged in discussions of the evidence which were tantamount to deliberations before the conclusion of the case. Sentencing Errors ----------------- XII. The Pennsylvania death penalty is unconstitutional because it is applied disparately, unequally, arbitrarily, and freakishly. XIII. The sentencing verdict form created a substantial probability that jurors believed that una- nimity was required to find a mitigating circumstance. XIV. The prosecutor's summation in the sentencing phase diminished the jury's responsibility in determining whether death was an appropriate sentence, burdened defendant's right to silence, and exploited defendant's difficulties with the court and his own attorney over his pro se status. XV. Mr. Jamal received the death sentence as a direct result of defense counsel's wholesale failure to prepare for the penalty phase, and his failure to present evidence in mitigation during that phase of the proceedings. XVI. The prosecutor's use of and argument from evidence of Mr. Jamal's irrelevant political past and abstract ideas violated Mr. Jamal's constitutional rights. XVII. The jury was not advised that a sentence of life carried with it no possibility of parole, violating Mr. Jamal's Eighth and Fourteenth Amendment rights. XVIII. The ineffective assistance of Mr. Jamal's appellate counsel prevented appellate review of meritorious issues based on the record. XIX. The cumulative impact of the above-errors deprived Mr. Jamal of due process. 79. Mr. Jamal raised the following issues on direct appeal: i. the exclusion of jurors by race; ii. the trial court's refusal to excuse a manifestly biased juror for cause; iii. the trial court's abuse of discretion in assuming control over the voir dire; iv. the inadequacy of funds to mount a minimally effective defense; v. the impermissible cross-examination of a defense character witness; vi. the prosecutor's reference in closing argument at both the guilt and penalty phases regarding Mr. Jamal's right to appeal; vii. the prosecutor's penalty phase cross-examination of Mr. Jamal regarding his Black Panther affiliation and statements attributed to him in a newspaper publication; viii. the imposition of the death penalty as disproportionate to the crime. 80. The issues raised herein m grounds for collateral relief are all of constitutional dimensions and would justify relief under the applicable federal habeas corpus statutes. The issues in part involve exculpatory evidence unavailable at trial that has subsequently become available and that would have affected the outcome of the trial if introduced. The errors at trial raised as grounds for collateral relief in this Petition so undermine the truth-determination process and the fundamental integrity of the adversarial process, that no reliable adjudication of guilt or innocence or reliable sentencing determination could have taken place. 81. With the exception of issues enumerated above as items IX and XVI, the issues raised herein as grounds for collateral relief were not presented for direct appellate review, but are raised here for the first time. Mr. Jamal did not knowingly and willfully forego presentation of these issues on direct appeal. The failure to raise these issues on direct appeal was the result of per se ineffective assistance of appellate counsel inasmuch as appellate counsel did not read the record in this case. (Hawkins Aff., Exh. 1 1) 82. The allegations of error presented herein have not been waived. To the extent any allegation of error is deemed waived, any such waiver has resulted in the conviction and/or affirmance of sentence of an innocent individual; and, further, any such waiver does not constitute a state procedural default barring federal habeas corpus relief. [Paras 83-164 of this Petition are not included.] WHEREFORE, petitioner Jamal requests this Court to: 1. Vacate the conviction and sentence of death; 2. Order a new trial; 3. Stay Mr. Jamal's execution; 4. Permit further investigation into the circumstances of Mr. Jamal's conviction, and if necessary, to permit the filing of an amended petition; 5. Grant the discovery motion filed herewith; 6. Grant a protective order to prevent the Commonwealth from harassing, inducing, intimidating or coercing potential witnesses, experts or investigators in this matter, or otherwise communicating with such witnesses about this case, without prior notice to and the presence of Mr. Jamal's counsel. 7. Direct the Commonwealth to file the complete record of the prior proceedings, including any portions not presently transcribed; 8. In the alternative, direct that a hearing be held in order that all factual issues raised herein can be fully and fairly litigated. Respectfully submitted, LEONARD I. WEINGLASS 6 West 20th St. Suite 10A New York, New York 10010 (212) 807-8646 DAVID RUDOVSKY (local counsel) Bar No. 15168 Kairys, Rudovsky, Kalman & Epstein 924 Cherry Street Suite 500 Philadelphia, PA 19107 (215) 925-4400 DANIEL R. WILLIAMS Moore & Williams, LLP 740 Broadway Suite 500 New York, New York 10003 (212) 353-9587 JONATHAN B. PIPER Sonnenschein, Nath & Rosenthal 800 Sears Tower Chicago, IL 60606 (312) 876-8000 STEPHEN W HAWKINS National Conference of Black Lawyers 1875 Connecticut Avenue, N.W Suite 400 Washington, D.C. 20009 (202) 234-9735 RACHEL H. WOLKENSTEIN 67 Wall Street, Suite 2411 New York, New York 10005 (212) 406-4252 Attorneys for Petitioner Mumia Abu-Jamal DISTRIBUTED BY THE PARTISAN DEFENSE COMMITTEE --- from list marxism@lists.village.virginia.edu ---