From: frederic-AT-dept.english.upenn.edu (Rhonda D. Frederick)
Subject: Abu-Jamal Petition  (part three) (fwd)
Date: Wed, 5 Jul 1995 16:07:37 -0400 (EDT)


Part three. . . .
> 
> Subject: Mumia: Petition for the post-conviction relief 3/3
> 
>  
> 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. (Id.
> > 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. (See
> > Point
> > VI, infra) 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.   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,
> > supra, 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. (7/1/82,
> > 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. (7/1/82, Tr. 147-48) 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
> > jury heard evidence regarding the penalty. Mr. Jackson made no attempt
> > to
> > prepare for the penalty phase hearing. (Jackson Aff.   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 cross-examination 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 Amendment 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 Examiner'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 own 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 jury 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 unanimity 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 as 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. 11)
> >     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 83-162 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
> > ## CrossPoint v3.02 ##
> > 
> > 
> > 
> 
> 
> 



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