Subject: Abu-Jamal  (part two) (fwd)
Date: Wed, 5 Jul 1995 16:06:52 -0400 (EDT)


> 
> > Subject: Mumia: Petition for the post-conviction relief 2/3
> 
> 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. (6/1/82, 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 "[d]uring
> > this time the negro male made no statements." (7/1/82, Tr. 51) 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.   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.   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.   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.   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.   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. (Id.   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.   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 under police pressure. (6/1/82,
> > 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 a.m. 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.   4, 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. (6/1/82, 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 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.
> > 
> > 
> > 
> 
> 
> 



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