Subject: Abu-Jamal Petition  (part one) (fwd)
Date: Wed, 5 Jul 1995 16:06:12 -0400 (EDT)


For Those Interested in Justice:
The following is the text of Mumia Abu-Jamal's Petition.  It's in three 
parts, two following.

Rhonda

> 
> > 
> > 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 U.S. 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 a.m. on December 9, 1981, in downtown Philadelphia
> > on
> > Locust Street near the intersection with l3th 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 WUHY-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.   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." (6/1/82, 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)
> > 
> > 
> > 
> 
> 
> 



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