IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
MUMIA ABU-JAMAL,
Petitioner, : 99 Civ. 5089 (Yohn)
v.
MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections; and
CONNER BLAINE, Superintendent of the
State Correctional Institution at Greene;
Respondents
THIS IS A CAPITAL CASE
__________________________________________
MEMORANDUM OF LAW IN SUPPORT OF PETITION
FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2254
Petitioner MUMIA ABU-JAMAL (Jamal), through undersigned counsel, submits this Memorandum of Law in support of his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §§ 2241 and 2254 et. seq. ("Petition"), on grounds that his conviction and sentence of death were obtained in violation of the Constitution of the United States.
This Memorandum addresses the threshold issue regarding the legal viability of Jamal's previously-filed Petition. [1] It establishes that each of the twenty-nine specified claims in the Petition are grounded in clearly established federal law, as determined by the Supreme Court of the United States. This threshold showing does more than defeat any attempt at a summary disposition of the Petition; it dictates the mechanics by which each of the claims set forth in the Petition must be evaluated under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Pub. L. 104-132, 110 Stat. 1214 (1996). [2]
Petitioner addresses herein three aspects of this case.
• First, it provides an analysis of the AEDPA as it applies to the particular circumstances of this case. Such an analysis is a necessary precursor to any discussion of the merits of this action, as the AEDPA provides the roadmap for habeas litigation and, to some degree, the substantive standards by which legal and factual issues are evaluated.
• Second, it sets forth Petitioner's assessment, at this early juncture in the litigation, of what claims in the Petition may be adjudicated without additional factfinding (either by way of discovery or an evidentiary hearing). This Memorandum also addresses Petitioner's current position as to what claims fall within the "mandatory hearing" category of Townsend v. Sain, 372 U.S. 293 (1963).
• Third, as noted above, it substantiates Petitioner's contention that each of the claims in the Petition are supported by clearly established federal precedent.
THE STATUTORY FRAMEWORK OF THE AEDPA
A. The Standard of Review of Petitioner's Twenty-Nine Constitutional Claims
The AEDPA provides in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of that claim - -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
28 U.S.C. §2254(d)(1) (emphasis added)
The language of subsection (d)(1) erects a dual standard for federal review of State court adjudications. State court decisions on adjudicated claims may be set aside and federal habeas relief granted where they either are "contrary to . . . clearly established Federal law" or "involved an unreasonable application of clearly established Federal law." Whether the "contrary to" standard for federal review is employed, or the more amorphous "unreasonable application" standard comes into play, is a threshold question, derived from the Teague doctrine, which may dictate the ultimate disposition of the §2254 Petition.
The Third Circuit's en banc decision in Matteo v. Superintendent, 171 F.3d 877 (3d Cir. 1999), provides, for the time being at least, the framework for determining which standard for federal review of a §2254 Petition applies to a particular claim. [3] Matteo holds that the "contrary to" provision of the AEDPA
requires a federal habeas court first to identify the applicable Supreme Court precedent and determine whether it resolves the petitioner's claim. . . . [T]he inquiry must be whether the Supreme Court has established a rule that determines the outcome of the petition. . . . [I]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome . . . .
We also emphasize that it is not necessary for the petitioner to cite factually identical Supreme Court precedent. Rather, the critical question is "whether a Supreme Court rule - by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations - can fairly be said to require a particular result in a particular case." (quoting O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998)
Matteo, 171 F.3d at 888-89. [4]
Only where a court concludes that the "contrary to" standard is inapplicable (typically because no adequately developed Supreme Court rule existed at the time of the State court decision) is the more amorphous and troublesome "unreasonable application" standard triggered. Under the "unreasonable application"standard, the analytical rubric in which a claim is scrutinized is "whether the state court's application of Supreme Court precedent was objectively unreasonable." Id. at 890. The Matteo Court further explained that this "objective unreasonableness" test prevents the granting of habeas relief unless "the state court decision . . . resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. [5]
This Memorandum shows that each of the claims set forth in the Petition are firmly rooted in Supreme Court precedent and rules extant at the time of the State courts' disposition of the claims at issue; and that, when fairly and appropriately read, this federal precedent compels a result "contrary to" that reached by the Pennsylvania Supreme Court on each of the claims. Accordingly, Petitioner submits that the "contrary to" standard of the AEDPA applies in toto; that an inquiry into the unreasonableness of the application of federal authority has no place in this litigation; and finally, upon final briefing of the claims, it will be shown that this standard mandates the granting of the relief requested in his Petition.
B. The Issue Of Deference To The State Court Fact Finding
This Memorandum does not address the nature of this Court's obligation to defer to the findings of fact by Judge Albert F. Sabo, the trial judge who also presided over the Post Conviction Relief Act (PCRA) hearing. The issue of deference to the State court fact-finding is, in some instances, intertwined with the ultimate analysis of whether the claims in the Petition warrant relief. Because it cannot be addressed without full development of the evidentiary record, briefing at this juncture would be premature. (See note 1, supra)
Nonetheless, Petitioner sets forth here the analytical architecture provided by the AEDPA on the question of federal court deference to State court fact finding. As noted above, subsection (d)(1) to the AEDPA provides one basis for habeas relief, which contains two distinct analytical approaches. The AEDPA provides a second basis for habeas relief, and that provision deals with the state court fact-findings and fact-finding proceedings. Subsection (d)(2) provides that habeas relief cannot be granted with respect to any State-court adjudicated claim unless the adjudication of the claim
resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. §2254(d)(2) (emphasis added)
Subsection (d)(2)'s "unreasonable determination of the facts" standard for federal habeas relief contemplates a procedural analysis and a substantive analysis. Petitioner may justify habeas relief under subsection (d)(2) upon a showing that the state court engaged in a procedurally deficient determination of the facts that renders the fact-finding "unreasonable" (assuming, of course, that the underlying facts independently prove a federal constitutional violation) "in light of the evidence presented in the State court proceeding." Id. [6] See, e.g., Williamson v. Ward, 110 F.3d 1508, 1521 n. 14 (10th Cir. 1997); United States ex rel. Gooch v. McVicar, 953 F. Supp. 1001, 1011-12 (N.D. Ill. 1997); Burris v. Parke, 948 F. Supp. 1310, 1321 (N.D. Ind. 1996), aff'd, 116 F.3d 256 (7th Cir.), cert. denied, 118 S.Ct. 462 (1997). Alternatively, subsection (d)(2) may be satisfied by showing that the State court fact-finding was substantively unreasonable when viewed in light of the evidentiary record. [7]
Failure on the part of a petitioner to establish (d)(2)'s "unreasonable determination of the facts" does not, however, end the AEDPA analysis. Rather, it pushes the case into the distinct analytical territory of 28 U.S.C. §2254(e)(1), which provides:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
The significance of subsection (e)(1) is in how it fits within the broader scaffolding of the AEDPA. That provision expressly reserves the presumption of correctness to "determination[s] of . . . factual issue[s] made by a State court." 28 U.S.C. §2254(e)(1). A "determination of a factual issue" under (e)(1) is predicated upon a subsection (d)(2) analysis of the record, which contemplates procedural and substantive reasonableness in the fact-finding determination. In short, a Petitioner's challenge to the State court's fact-finding comes within subsection (e)(1)'s "presumption of correctness" where the Petitioner is unable to meet the "unreasonableness" standard erected by subsection (d)(2).
C. Petitioner's Motion To Set Aside The State Court's Findings Of Fact
It is Petitioner's position that subsection (e)(1) will have no role to play in this litigation. The basis for this position resides in the manner in which Judge Sabo conducted the PCRA hearing, coupled with his undisguised and well-documented bias and hostility toward Petitioner specifically and capital defendants generally. Petitioner shall file with this Court a Motion to Set Aside the State Court's Findings of Fact predicated on the failure of the State to accord Petitioner a full and fair hearing, which flowed directly from Judge Sabo's bias and hostility.
The significance of this motion can only be understood in light of the discussion in Section B, supra. Petitioner intends to show that he can satisfy the statutory requirements of subsection (d)(2), based upon the fact that he was denied a full and fair hearing in the State court system. Granting this motion would render subsection (e)(1) moot and would obviate the need to do a claim-by-claim analysis under subsection (d)(2). The more complicated question (which need not be addressed at this juncture) is whether the Court would need to conduct an evidentiary hearing on all of the claims, including those in which the evidentiary record is now complete, in the event the State court's fact-finding is set aside. [8]
What is clear, however, is that resolution of the Motion to Set Aside the State Court Fact-Finding is a threshold question that is best resolved before inquiring into what issues require an evidentiary hearing. [9] Success on that motion will directly affect the merits of those claims that are governable by subsection (d)(2), thereby possibly obviating the need for evidentiary hearings on some or all of those particular claims. Similarly, denial of the motion will necessarily require a claim-by-claim evaluation to determine whether an evidentiary hearing is necessary on each particular claim, and if so, what would be its scope. Accordingly, Petitioner intends to file first the Motion to Set Aside the State Court Fact-Finding, and depending upon the resolution of that motion, will file a subsequent Motion for an Evidentiary Hearing.
A. Claims Governed By Subsection (d)(1) And For Which An Evidentiary Hearing Is Unnecessary
Petitioner wishes to make clear that not all of the claims are candidates for an evidentiary hearing. Certain claims are ripened for final adjudication inasmuch as the evidentiary record is complete and credibility determinations by the PCRA court are not at issue. These claims are: seven, nine through fourteen, seventeen, eighteen, twenty-two and twenty-three. The evidentiary record presently permits analysis of these claims - after there has been a full development of the record on all of the claims - pursuant to the "contrary to" standard of review in 28 U.S.C. §2254(d)(1).
B. Claims For Which An Evidentiary Hearing Is Mandatory
While nearly half of the claims in the Petition can be addressed without additional factfinding, others cannot be adequately adjudicated without an evidentiary hearing (and, in some instances, additional discovery). Specifically, the following claims cannot be resolved without an evidentiary hearing regardless of how the Court resolves Petitioner's Motion to Set Aside the State Court's Findings of Fact, as the Petitioner, through no fault of his own, has not had a full and fair opportunity to present the full panoply of evidence supporting them: claims three through five, fifteen, sixteen, nineteen, twenty, twenty-one, twenty-four, twenty-five through twenty-eight. [10]
The PCRA record reveals that over two dozen valid subpoenas were quashed and every single discovery request denied, uniformly without a rationale expressed. Proffered evidence in support of the above-noted claims was disallowed, again without an expressed rationale or upon the most dubious of grounds. But even more disconcerting, the PCRA court's campaign to impede discovery and deny compulsory process was part of a larger strategy to manufacture a PCRA record which, on its face, would justify an outcome that was preordained. Thus, the PCRA court quashed subpoenas, knowing that without the subpoenaed witnesses Jamal would be impeded in substantiating his constitutional claims. Subpoenas for P.O. Gary Bell, Stephen Trombetta, and other officers who were in a position to hear an alleged confession by Jamal were quashed, thus hampering Jamal from bolstering the proof that the "confession" evidence was concocted. (8/2/95 Tr. 239; see Point III, infra) Jamal could not prove that three jurors, during the course of the trial, secretly deliberated in a hotel room next to that of juror Savannah Davis. The subpoena for Savannah Davis was quashed and the resulting evidentiary gap was seized upon to deny PCRA relief. (8/7/95 Tr. 10; FOF ¶ 48) Indeed, one of Jamal's lawyers was incarcerated for attempting to explain why the subpoena for the state court administrator was necessary. By quashing that subpoena, Judge Sabo precluded proof substantiating Jamal's claim that geographic and racial disparities plague Pennsylvania's death penalty. (See Point XX, infra.) In the end, the PCRA court simply adopted virtually verbatim the proposed findings of fact and conclusions of law submitted by the prosecution.
An evidentiary hearing is mandatory where, for reasons beyond a petitioner's control (see 28 U.S.C.§2254(e)(1)), the factual issues were either (1) not previously the subject of a full and fair hearing in the state courts, or (2) if a full and fair state court hearing was held, the hearing did not result in legitimate fact-findings that resolve all the controlling factual issues. See Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997). The specific criteria for granting mandatory hearings is still governed by Townsend v. Sain, 372 U.S. 293 (1963), as the AEDPA has left the Townsend hearing criteria intact. [11] The following Townsend criteria apply here [12]:
(1) absence of State fact-findings: PCRA court failed to address certain factual issues, and in many instances simply sidestepped the fact-finding task by invoking the canard that a witness was not "credible" [13];
(2) inadequate State fact-findings: PCRA court's purported fact-finding was in many instances insufficiently historical, specific, considered and comprehensive to relieve this Court of its responsibility to make its own independent factual inquiry [14];
(3) absence of a State hearing: some of the claims rest upon facts which Petitioner, despite his own affirmative efforts, could not adduce in the PCRA proceedings, either because subpoenas were quashed, proffered evidence disallowed, or discovery refused [15];
(4) State hearing process not "full and fair" and violated due process: Judge Sabo's bias and hostility towards Petitioner (see Petitioner's Motion to Set Aside State Fact-Finding, to be filed) infected the entire fact-finding process, rendering the PCRA proceedings a sham [16];
(5) State fact-findings unsupported by the record: PCRA court's purported fact-finding failed to consider and evaluate the entire relevant evidentiary record, but instead, in many instances, simply brushed the facts aside on the unsupported theory that the testimony supporting the claims was not credible. [17]
On December 9, 1981, at approximately 3:55 a.m., Jamal was found critically wounded by a gunshot near the corner of 13th and Locust Streets in downtown Philadelphia. Lying nearby was a wounded police officer, Daniel Faulkner. Both were rushed to a nearby hospital. Jamal recovered; the officer did not. Jamal is presently on death row for the murder of Officer Faulkner.
A. The Climate Of The Proceedings [18]
From the outset, Jamal's case was remarkable. Common Pleas Judge Paul Ribner observed in the first court appearance: "I know there are certain cases that have explosive tendencies in this community, and this is one of them." (1/5/82, Tr. 66) Officer Faulkner's death made the front pages of the afternoon papers on December 9, 1982, with Jamal's political activities highlighted. The Inquirer headlined: "Jamal: An eloquent activist not afraid to raise his voice." On the other hand, the Daily News was quick to point out that Jamal ". . . wears his hair in dreadlocks and was associated with several black activist causes. . . . he was a leader of the local Black Panther Party while still a teenager." [19] That article reported that in 1970 Jamal had told a newspaper reporter that "Black people are facing the reality that the Black Panther Party has been facing: political power grows out of the barrel of a gun." [20]
Erroneous information attributed to Philadelphia police sources was prominently reported. Two days after the shooting, the Daily News opened a lead article by asserting that "Preliminary ballistic tests indicate the shots that killed Police Officer Faulkner were fired from the gun recovered from radio newsman Mumia Abu-Jamal, police said yesterday." In reality, the bullets that killed the officer were never matched to Mr. Jamal's gun. (6/23/82, Tr. 108) What did not appear in the media coverage is also illuminating. Although the prosecution presented evidence at that Jamal uttered a profanity-laden confession shortly after his arrest on the morning of December 9, 1981, there was absolutely no mention of this extraordinary event in any of the coverage. As shown in Claim Three, infra, the reason for this absence is that the "confession" evidence was manufactured.
Inevitably, the fact that Jamal, a prominent black radio newsman, had been charged with the shooting of a white police officer produced a racial polarization in Philadelphia. One Inquirer commentator stated that
"radio talk shows were full of people calling in to say exactly what ought to be done about the killing of police officer Daniel Faulkner on the Locust Street strip in the early hours of Wednesday morning. Some of them, predictably, want to lynch the man who calls himself Mumia Abu Jamal as soon as he recovers from the bullet wound placed in his gut by the dying cop." [21]
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) After jury selection, the trial court accurately noted that "Everybody here has read about him." (6/25/82, Tr. 8.134) Thirteen years later, at the PCRA hearing, the prosecutor characterized this case as "probably one of the biggest events in the criminal justice system in the City of Philadelphia for a quarter of a century." (7/28/95 Tr. 58-59)
At the time of his arrest, Jamal was a well-known award-winning journalist and activist in the Philadelphia area. Thirteen years earlier, at the age of fifteen, Jamal had been one of the founding members of the Philadelphia Chapter of the Black Panther Party; and by 1969 he had become its communications secretary. In the mid-1970's, Jamal turned to professional journalism, and he excelled. He 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, Jamal was elected chair of the Philadelphia Chapter of the Association of Black Journalists. The January 1981 issue of Philadelphia Magazine named Jamal "one of the people to watch in 1981." 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 released by the Addison-Wesley Publishing Company, and has since been translated into seven languages. In 1998, Jamal released his second book, Death Blossoms.
As a result of his past affiliation with the Black Panther Party, his openly sympathetic stance toward the Move Organization, 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, Jamal became a well-known object of police bias and animus. Since his youth, Philadelphia police maintained continuing surveillance of Jamal as a vocal black activist. Despite their constant scrutiny, police found no basis for linking Jamal to any criminal activities during those years.
It is undisputed that the initial event preceding the shooting was a traffic stop involving an old Volkswagen. The Volkswagen, with its rear license plate dangling, was pulled to the curb by Officer Faulkner on Locust Street near the intersection with l3th Street. (6/25/82, Tr. 8.83) In the Volkswagen was Billy Cook ("Billy"), Jamal's brother. It was not clearly established how many other persons were in the Volkswagen. The neighborhood was notorious for its nightlife, containing numerous bars, nightclubs and cafes. These establishments were in the process of closing, as it was approaching 4 a.m. when the events unfolded. (6/1/82, Tr. 21)
Officer Faulkner was on duty, driving alone, in uniform, armed and in a marked police vehicle. As he made the stop he turned on the red bubble light atop his car which was still flashing when the responding officers arrived on the scene after the shooting. (6/19/82, Tr. 115; 6/1/82, Tr. 47) Before getting out of his car Officer Faulkner called dispatch and reported his location. The time was exactly 3:51 a.m. Dispatch immediately ordered a backup. Within seconds, and before getting out, Officer Faulkner went on the air again: "On second thought send me a wagon 1234 Locust." (6/19/82, Tr. 104-06) Why Officer Faulkner ordered a wagon for what appeared to be a routine traffic stop will, perhaps, always remain a mystery.
Three prosecution witnesses and one defense witness testified about the stop. All agreed that Officer Faulkner exited his vehicle first. He had brought his police car to a halt immediately behind the Volkswagen on the south side of Locust Street, a car length east of the intersection with l3th Street. The Volkswagen had pulled up immediately behind a Ford, occupying a position between the police car and the Ford. The prosecution witnesses who testified were situated to the rear of the police car looking into flashing red lights at events occurring in front of or alongside the vehicle. Two were pedestrians and two were sitting in cars. Their observations varied sharply.
The key prosecution witness was Cynthia White, a known prostitute with at least 38 arrests. She claimed she was standing on the sidewalk at the intersection of Locust and 13th St. on the southeast corner, talking to an unidentified male, when the flashing red lights of Officer Faulkner's police car drew her attention. (6/21/82, Tr. 4.92; 4.94) None of the three other prosecution eyewitnesses recalled seeing Cynthia White despite the fact that all were situated behind the police car, within 100 feet of each other, and in or near the intersection. [22]
White claimed she saw Officer Faulkner pull the Volkswagen over and emerge from his vehicle, walking toward the driver's side of the Volkswagen. (6/21/82, Tr. 4.93) As he got to the Volkswagen an occupant got out and they both walked back toward the police car and then up onto the sidewalk, talking or arguing as they walked. (6/21/82, Tr. 4.93; 6/22/82, Tr. 5.109) According to White, shortly after they reached the sidewalk the civilian suddenly struck Officer Faulkner "with a closed first to the cheek." (6/21/82, Tr. 4.93) Officer Faulkner responded by turning the assailant around, pulling his arms behind him and making a motion as if to place him in handcuffs. (6/21/82, Tr. 4.93) However, no handcuffs were found. Further, White insisted Officer Faulkner never had anything in his hands. (6/22/82, Tr. 5.119-22)
Another prosecution witness, Mark Scanlan, was driving alone in his Ford Thunderbird east on Locust. He admitted to having had "a few cocktails....a couple hours before" (6/25/82, Tr. 8.13), and was with a friend who he had just dropped off shortly before 4 a.m. (6/25/82, Tr. 8.12) He brought his vehicle to a stop in the left hand lane at the traffic light on Locust just west of the intersection with 13th Street, a distance he wrongfully estimated to be "several car lengths" behind the police car. (6/25/82, Tr. 8.19) [23] He remained at that location until after the shooting, facing, at all times, the rear of the police car. (6/25/82, Tr. 8.19)
Scanlan's observations differed markedly from those of Cynthia White. He testified he first saw Officer Faulkner and another individual standing in the street in front of the police car. (6/25/82, Tr. 8.6) Officer Faulkner had that person "spread eagled" over the hood of the police car and was beating him with what appeared to be a flashlight or billy club after the individual swung around and struck Officer Faulkner in the face. (6/25/82, Tr. 8.6) [24] Officer Faulkner's seventeen inch flashlight was found at the scene with a broken lens. (6/26/82, Tr. 36; 6/30/82, Tr. 59) The officers who took Billy into custody immediately after the shooting reported seeing fresh blood running down his neck and from the left side of his face. (6/30/82, Tr. 54; 6/22/92, Tr. 5.151) Scanlan's observations, and the physical evidence supporting them, stood in sharp contrast to those of Cynthia White who repeatedly maintained that Officer Faulkner never struck anyone and had nothing in his hands. (6/21/82, Tr. 4.108; 6/22/82, Tr. 5.98, 5.119-122)
A third prosecution witness, Albert Magilton, was in the west crosswalk of the intersection, heading north across Locust. (6/25/82, Tr. 8.84; 8.105) He reported seeing Officer Faulkner's vehicle "put on the lights" at the intersection of Locust and l3th while both vehicles were proceeding east on Locust and pull the Volkswagen to the curb just beyond the intersection. (6/25/82, Tr.8.83) He saw Officer Faulkner and an occupant of the Volkswagen "...walk onto the pavement" between the cars. (6/25/82, Tr. 8.81) Magilton then turned, facing forward, in order to cross Locust in the midst of traffic. (6/25/82, Tr. 8.88) He lost sight of what happened next and didn't look in that direction again until he heard gunshots. (6/25/82, Tr. 8.87)
Adding to the contradictory and confusing reports of these prosecution witnesses were the observations of a fourth witness, Dessie Hightower. Hightower, a defense witness, had a better vantage point than that of the other three purported eyewitnesses -- all of whom were situated behind Officer Faulkner's police car. Hightower, by contrast, was on the northwest corner of the intersection, giving him a better angle of vision and an unobstructed view of the incident. (6/28/82, Tr. 141) He testified that Officer Faulkner walked not to the driver's side of the Volkswagen, but to the passenger side and was trying to get somebody out of the car. (6/28/82, Tr. 182-184; 188)25 He also recalled seeing "one black male sitting in it (the Volkswagen) possibly a Jamaican" just after the shooting. (6/28/82, Tr. 173) This testimony that a passenger was also in the Volkswagen is critical to Jamal's insistence from the very beginning that he is innocent. Moreover, the PCRA proceedings revealed that this testimony - unsupported by corroborating evidence at trial - is in fact amply corroborated by eyewitness and documentary evidence. [26]
The police statements and testimony of these four witnesses constituted the entire trial record regarding the traffic stop and the ensuing confrontation between Officer Faulkner and one of the Volkswagen occupants prior to any shooting. It is undisputed that Jamal was not at the scene at the time of the traffic stop.
D. Jamal Appears At The Scene And Is Shot
Of the six testifying witnesses who claimed to be at the scene, three reported seeing Jamal across the street from the police car, emerging from a parking lot on the north side of Locust. He was walking fast and then broke into a run toward his brother as Officer Faulkner began striking Billy with his flashlight. (6/25/82, Tr. 8.55; 8.6; 8.92) Two of the three, Magilton and Scanlan, both of whom were situated in the street and were looking down Locust as Jamal crossed, reported seeing nothing in his hands. (6/25/82, Tr.8.57, 8.65; 8.100) Neither saw him fire any shots and neither saw any flashes from a weapon as he approached Officer Faulkner. (6/25/82, Tr. 8.43; 8.89)
Only the prostitute, Cynthia White, claimed at trial to have seen a gun in Jamal's hand as he crossed Locust and ran toward his brother and Officer Faulkner. (6/22/82, Tr. 5.102; 5.115) [27] This claim was dubious, at best. First, assuming she was even where she said she was, White had nowhere near the vantage point that the other eyewitnesses had. Her view of the parking lot was from across the street, and from a distance she estimated to be two and a half car lengths away; she would have viewed the events in the darkness of night and over the tops of the vehicles that were parked on the street. She estimated her view of Jamal as he approached the scene lasted for just "half a second." (6/22/82, Tr. 5.114) [28]
Second, her story had all the markings of being a concoction. She confessed earlier to the police that her vision was obscured (6/22/82, Tr. 5.224) and that she had merely heard gunshots. (6/22/82, Tr. 5.217-218; 5.224; 5.222) Evidence that the police had both coerced and induced her change of story was excluded by the court. (See discussion, infra)
Scanlan's diagram, drawn that night, had Officer Faulkner facing Jamal as he ran toward the scene. At that moment Officer Faulkner faced a life threatening situation. He had one suspect who allegedly struck him bent over the hood of a car with another individual running toward him. He was alone. It was 4 a.m. It was dark. The neighborhood was unsettling and not known to be police friendly. It was undisputed that Officer Faulkner shot Jamal in the chest and from close range even though, inexplicably, not a single witness who testified at trial could recall seeing it.
Scanlan's diagram establishes that Jamal was still in the street when the first shot was fired. That was also White's testimony. (6/22/82, Tr. 5.112) [29] She said Officer Faulkner, who is over 6 feet tall, was standing up on the sidewalk. (6/22/82, Tr. 5.109) The bullet entered Jamal's right chest and moved in a downward direction through his rib cage, piercing his liver and coming to rest in his lower back. (6/28/82, Tr. 28.70)
E. The Shooting Of Officer Faulkner
The prosecution theorized that Jamal ran to the scene and fired first, striking Officer Faulkner in the back and causing him to fall. But prosecution witness Scanlan maintained that Officer Faulkner was facing Jamal when the first shot was fired. The prosecution claimed Officer Faulkner managed to return fire as he was falling and wounded Jamal who then stood over the fallen officer. The prosecution relied upon Cynthia White's testimony to substantiate this theory, thus making White the pivotal prosecution witness. As it turns out, the prosecution's theory was plainly wrong, and White a patsy for the prosecution, as the pathology evidence produced at the PCRA hearing unquestionably establishes.
It is hard to come upon a more malleable witness than Cynthia White. At the time of trial 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 (6/21/82, Tr. 4.80), and, as readily acknowledged by the prosecution, had three open cases awaiting trial in Philadelphia when she took the stand. (6/21/82, Tr. 4.81) [30]
White readily admitted she had lied previously to the police on numerous occasions by giving false names and addresses (6/21/82, Tr. 4.80), and further demonstrated her contempt for court processes by frequently failing to appear when required. (6/22/82, Tr. 5.45) So often did she ignore court summonses that she couldn't remember all the dates. (6/22/82, Tr. 5.46) In fact, she had a scheduled court appearance for December 10, 1981, the day after the shooting, and failed to appear. (1/11/82, Tr. 86-87; 6/22/82, Tr. 5.27) No hearings were ever held on her outstanding bench warrants since the incident, despite the fact that she had been arrested a number of times. (6/22/82, Tr. 5.49) The police placed a photo of her on the bulletin board in the 6th Precinct (Officer Faulkner's precinct) with a notice that the homicide unit was to be contacted if she was arrested. (6/21/82, Tr. 4.171) Within ten days of the incident she was arrested at least twice: on December 12th and l7th. (6/22/82, Tr. 5.31) On each occasion she was taken to the homicide unit and gave a revised -- indeed, more inculpatory -- statement respecting the events of December 9th. (6/22/82, Tr. 5.31) [31]
In all she had given four written statements and one tape-recorded statement to the police prior to trial. (6/21/82, Tr. 4.132) She admitted her testimony conformed only to her third statement given to police on December 17th (in the wake of her second post-incident arrest). (6/21/82, Tr. 4.176) Although she claimed to be standing in front of a bar at 4:00 a.m. for at least a _ hour before the incident, she denied having anything to drink that night (6/21/82, Tr. 4.140; 4.147). White also claimed to have been talking to a man as the episode was unfolding and that both observed events in their entirety. (6/21/82, Tr. 4.141) She could not identify this purported companion by name. (6/21/82, Tr. 4.142)
She further admitted that the diagram she drew on the night of the occurrence was wrong (6/22/82, Tr. 5.233) and that her placement of the actors prior to Jamal's appearance was untrue. (6/22/82, Tr. 5.110) [32] In another interview she estimated the height of the person who shot Officer Faulkner to be shorter than 5'8". (6/22/82, Tr. 5.113) Mr. Jamal is 6'1". (6/22/82, Tr. 5.113)
To buttress Cynthia White's story the Commonwealth called Robert Chobert, a cabdriver in his early twenties, who claimed that he parked one car length behind Officer Faulkner's vehicle and discharged a passenger onto the sidewalk on the southeast corner of Locust and 13th Street just prior to the shooting. (6/19/82, Tr. 228) He also didn't see White, despite her claim to be standing precisely where the cab came to a halt. (6/19/82, Tr. 227) After his passenger exited Chobert sat behind the wheel writing up the fare on a pad. It was unclear if he had the inside light on. (6/19/82, Tr. 220) It was at that point that he heard a single shot and looked up. (6/19/82, Tr. 228) He didn't see who fired that shot. However, from that moment on, and until the shooting stopped minutes later, his attention was drawn to what was occurring only a car and a half in front of his vehicle.
Confirming that Jamal was shot first, Chobert didn't see Officer Faulkner shoot Jamal at any time and simply couldn't account for Jamal being shot. (6/19/82, Tr. 267-269) He did, however, recall seeing the person who shot Officer Faulkner -- a totally different individual than the one described by Cynthia White: a large, heavy man, about 6 foot and weighing 200 to 225 pounds, standing over Officer Faulkner and appearing to be shooting down at him. (6/19/82, Tr. 234-35) When he observed Jamal standing in the courtroom he admitted he didn't look like someone who weighed 225 pounds and conceded he wasn't heavy. (6/19/82, Tr. 235) At the time Jamal weighed just 170 pounds. [33] He 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) Much of what he reported observing he admitted were nothing more than mere assumptions. (6/19/82, Tr. 230)
After the shooting ended Chobert left his cab and quickly surveyed the area from the sidewalk, seeing both Officer Faulkner and Jamal. The arriving police ordered him back to his cab. (6/19/82, Tr. 211) Even while he was standing on the sidewalk he never saw Cynthia White who at one point claimed to be within seven feet of the victims as the police arrived. (6/19/82, Tr. 234) Nor did he get any closer than one and a half to two car lengths from where Jamal was lying on the ground, getting his only full face view of him for a very brief period of time. (6/19/82, Tr. 259) Nonetheless, when he was shown a wounded Jamal as he lay in a police van later that night, Chobert claimed to be able to identify him as the shooter who he had seen only momentarily from the side. (6/19/82, Tr. 257) [34] He insisted at trial that Jamal was the shooter despite the disparity between the description he had given the police and the man he observed in court.
Scanlan's version of events also collided with Cynthia White's. While he accurately recalled seeing Hightower (with his friend, identified as Pigford) on the northwest corner of the intersection, he didn't see Cynthia White at all. (6/25/82, Tr. 8.30) Moreover, he identified Jamal as the driver of the Volkswagen. (6/25/82, Tr. 8.46; 8.12) Clearly, Scanlan could not tell which of the black males was which, or who shot the officer. (6/25/82, Tr. 8.8; 8.12) Nor did he support Cynthia White's suggestion that Officer Faulkner might have grabbed his gun and shot Jamal as he was falling. He saw Officer Faulkner's hands throughout and when asked, "Did you see his hands grab on to anything?," answered, "No, I don't remember." (6/25/82, Tr. 8.70)
Of all the witnesses present, it was Scanlan who twice candidly admitted there was "confusion when all three of them were in front of the car." (6/25/82, Tr. 8.33; 8.37) On reflection, he also believed that some of the events he reported as fact were mere assumptions. (6/25/82, Tr. 8.65) Moreover, he admitted he "could have been mistaken" about where these events happened. (6/25/82, Tr. 8.68) Scanlan also contradicted Chobert on whether or not Officer Faulkner fell to the ground as a result of his having heard 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) [35]
All Magilton added to the shooting was the positive identification of Jamal as the man who ran across the street. (6/25/82, Tr. 8.78) He didn't see him shoot at anyone (6/25/82, Tr. 8.88). Nor, as previously noted, did he see Cynthia White. (6/25/82, Tr. 8.86)
F. Someone Flees The Scene In The Direction Of A Nearby Alleyway
When asked by the police in one of her interviews, the prosecution's key witness, Cynthia White, said that after Jamal was shot "he just sat there on the curb. He didn't even try to run or anything." (6/22/82, Tr. 5.173) No less than five witnesses to the shooting, situated in five 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 the scene of the shooting before the police arrived. All said he ran east on Locust on the south side of the street in the direction of Camac Street, which was nothing more than an alleyway which intersects the street and provides a ready escape route.
Dessie Hightower, a young college student, was one of two "flight" witnesses who testified for the defense. As previously noted he was situated on the northwest corner of the intersection of Locust and l3th at the outset. From that vantage point he could see where Camac Street joins Locust. He testified that less than 13-15 seconds after the shooting stopped (he had taken momentary cover behind a building wall abutting a parking lot west of the intersection of 13th and Locust when he heard shots) he looked around the corner of the building and saw a person who looked Jamaican (because he wore dreadlocks) and was approximately 5'9" tall running east down the south side of Locust past a residential hotel on the corner where Camac joins Locust. (6/28/82, Tr. 126-27, 149-50, 152) He could see clearly because of the lights from the hotel. (6/28/82, Tr. 126) The police arrived "maybe ten seconds" after the fleeing figure disappeared from sight. (6/28/82, Tr. 126) [36]
Hightower's testimony was supported in this regard by another important prosecution witness, the cabdriver Chobert. Chobert told an arriving police captain that the shooter "ran away." (6/1/82 Tr. 23, 78) Less than an hour later Chobert repeated that assertion at police headquarters when he told investigators that the person who shot Officer Faulkner ran "30 feet away" (or "30 steps") in the same direction that Hightower reported and on the same side of the street. (6/19/82, Tr. 236) Camac intersects Locust approximately 35 steps from the point of the shooting and would have been the most likely escape route for the shooter. (6/19/82, Tr. 236) At trial, however, 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) The PCRA hearing revealed the probable explanation to Chobert's revised story. [37]
His was not the only retraction on the issue of the shooter running away. Veronica Jones, the second "flight" witness called by the defense, told homicide investigators during her initial interview that she saw two individuals run from the scene ("sort of jogging"). She also described the direction as being eastbound on the south side of Locust St. (6/29/82, Tr. 106) However, on the witness stand she recanted this observation, even to the point of denying telling the interviewing detectives anything about anyone fleeing the scene. (6/29/82, Tr. 99) As with Chobert, the PCRA hearing disclosed the full story behind this recantation. [38]
A glimpse of what prompted Jones's retraction, however, surfaced at the trial (but not before the trial judge struck the testimony). She explained at the trial that she was arrested, together with several other women, in early January and questioned for five hours about this case. (6/29/82, Tr. 132-134) In her words, the police were, "getting on me, telling me I was in the area and I seen Mumia, you know do it, you know, intentionally. They were trying to get me to say something that the other girl (Cynthia White) said. I couldn't do that." (6/29/82, Tr. 129) Furthermore, in what appeared to be a promise of immunity from arrest, Jones testified that "when we brought up Cynthia's name ...they told us we can work the area if we tell them." (6/29/82, Tr. 135-136) [39]
Finally, there was the report of Debbie Kordansky, an eyewitness who didn't appear to testify. [40] At the time she was a resident of the St. James Hotel which overlooked the scene of the shooting. In her statement she reported hearing gunshots between 3:45 and 4:00 a.m.; and, sometime shortly thereafter, looked out her window and "saw a man running on the south side of Locust Street." (6/30/82, Tr. 4) The report was unclear as to precisely when she made these observations. (6/30/82, Tr. 4) However, her description of someone running on the south side of Locust matches that previously given by Scanlan, Hightower, and Veronica Jones.
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.
Both Officer Faulkner and Jamal were removed by the police from the scene of the shooting and taken to Jefferson Hospital, three blocks away. Jamal was under treatment within ten minutes of his arrival, "maybe five." (6/24/82, Tr. 66, 73, 167) Doctor Anthony V. Coletta, a surgical resident on call who was sleeping at the hospital, responded immediately to an emergency code on his beeper. (6/28/82, Tr. 28.54-55) When he reached Jamal he found him 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)
Although Dr. Coletta found Jamal to be barely conscious, and another doctor found Jamal to be lethargic, two prosecution witnesses belatedly claimed that Jamal was struggling violently and shouted out a confession. These two witnesses were Officer Gary Bell, Officer Faulkner's partner and "best friend" (6/24/82, Tr. 156), and a 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) Durham acknowledged crying when informed he had died. (6/1/82 on Tr.115) Both claimed to have heard Jamal, an experienced court reporter and journalist, openly proclaim that "I shot the motherfucker and I hope the motherfucker dies." (6/24/82, Tr. 28; 136)
Neither one, however, reported to investigators that they had heard such an open and damning admission until months later when they were interviewed by detectives from Internal Affairs who were investigating a complaint initiated by Jamal for having been abused by the police in the hospital. Bell's interview occurred on February 25, 1982 (6/24/82, Tr. 140) and Priscilla Durham's sometime in March, 1982. (6/24/82, Tr. 45)
Officer Bell never wrote up an incident report about what he allegedly overheard from a suspect accused of murdering his partner. (6/24/82, Tr. 140) There was no mention of any "confession" in his patrol log for that day. Nor did he ever inform his fellow officers, wife, brother or anyone about Jamal's supposed statement until interviewed by Internal Affairs two months after the shooting. (6/24/82, Tr. 169) In fact, Officer Bell was interviewed by detectives on December 16, 1982, and he never mentioned hearing a "confession."
No less questionable were the actions of Priscilla Durham who also didn't fill out an incident report (6/24/82, Tr. 80), but claimed to have prepared a handwritten statement about the event shortly thereafter. Not only did she fail to turn this supposed handwritten statement over to police, she made no mention of it during her police interview. (6/24/82, Tr. 98; 51) This alleged handwritten statement has never surfaced during the entire time this case has been litigated. [41] She never discussed it with any officers on any occasion prior to March. (6/24/82, Tr. 51) This, despite the fact that she came in contact with police at the hospital about twice a day, six days a week. (6/24/82, Tr. 45) At one point on cross-examination, when asked what kind of noises she heard Mr. Jamal make, she unceremoniously acknowledged, "I didn't hear what he was saying." (6/24/82, Tr. 59)
Both Bell and Durham, using the identical phrase, described the scene at the hospital as one of "mass confusion." (6/24/82, Tr. 121,127, 165) The emergency area had been closed when Officer Faulkner, in critical condition, was brought in. (6/24/82, Tr. 126) Medical personnel opened the area and were scurrying about. (6/24/82, Tr. 127) According to Durham, there were fifteen to twenty police officers jammed into that area which was so small that "there was no place to even bring anybody else, they couldn't even get through the door." (6/24/82, Tr. 57, 127) Jamal appeared amidst this crowd and "mass confusion," his arms handcuffed behind his back and flanked by several officers who were apparently either supporting or carrying him. (6/24/82, Tr. 135) Jamal ended up on the floor, on his back and with his arms still handcuffed behind him, with a bullet lodged in his lower back, in what must have been an excruciatingly painful position. (6/24/82, Tr. 56) He was "stretched out on the floor, the police had his arms, they had his legs, they were trying to control him." (6/24/82, Tr. 56) He was laying on a mat which automatically opened the doors to the emergency area with his head facing into the emergency area. (6/24/82, Tr. 56)
Durham had been on the emergency room side of the doors when they sprang open. "I never saw him until I looked down," she testified. (6/24/82, Tr. 55) "When the doors opened Jamal was hollering, the police was hollering. I immediately left the area . . . . I was there for a moment and I was gone." (6/24/82, Tr. 57,58) In that moment she observed Jamal "thrashing . . . screaming and hollering" while officers were holding his arms, legs and hands (6/24/82, Tr. 59), and it was then that she claimed she heard his exclamation. She then left that area and went to open another door so Jamal could be moved to a family room away from the emergency area. (6/24/82, Tr. 69) It was then, she testified, that she heard the remark a second time. (6/24/82, Tr. 63) Jamal was then picked up and dragged by his arms with his feet trailing on the floor to the family room.
All the witnesses agreed that 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. Two officers, Gary Wakshul and his partner Stephen Trombetta, stayed with Jamal from the time he was driven from Locust Street until the doctors started treating him in the hospital. Wakshul and Trombetta were with Jamal when he allegedly made his crudely memorable confession. Yet, Wakshul told detectives, and then signed a police report memorializing his interview, immediately after his guard duty, that "[d]uring this time the Negro male made no statements." (7/1/82, Tr. 51) A week later, Wakshul was interviewed again, and again he never mentioned anything about a confession. His partner, Trombetta, likewise never reported hearing a confession. The jury, however, never heard from either witness.
LEGAL AUTHORITY IN SUPPORT OF PETITIONER'S CLAIMS
CLAIM 1. THE STATE'S MANIPULATION OF TWO PURPORTED EYEWITNESSES THROUGH SECRET DEALS VIOLATED THE BRADY DOCTRINE AND UNDERMINED JAMAL'S ABILITY TO ENGAGE IN MEANINGFUL CROSS-EXAMINATION
The Petition alleges that two purported eyewitnesses - Cynthia White and Robert Chobert - were manipulated by law enforcement to provide favorable prosecutorial evidence. White's testimony, which conflicts with indisputable physical evidence, came about only after she was given favors from law enforcement. Testimony from the 1982 trial indicating this fact was unjustifiably stricken; and testimony from the PCRA hearing in 1996 substantiated it. Chobert's testimony, which was a devastating retreat from his plainly exculpatory observations reported immediately upon the arrival of the police at the scene of the crime, arose amidst assurances that he would be allowed to continue to earn his livelihood as a cab driver, notwithstanding circumstances that warranted his discipline for illegally operating a commercial vehicle.
The State never disclosed that these witnesses were prompted to assist the prosecution through favors. Secret deals between the prosecution and witnesses undermine the integrity of the judicial process. See, e.g., United States v. Giglio, 405 U.S. 150, 154 (1972). Giglio enunciates the fundamental proposition that "when the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility" denies due process. "The thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony." Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir. 1983). See Ouimette v. Moran, 942 F.2d 1, 11 (1st Cir. 1991) (withheld Brady material "was responsible for defendant's inability to cross-examine the government's witness fully").
The secret arrangement with White was a straightforward quid pro quo; as such, it unquestionably fell within the ambit of Brady and a nuanced analysis of the Brady principle is unnecessary. The arrangement with Chobert is somewhat more subtle, as the understanding between Chobert and the prosecutor was more tacit and somewhat informal. Nonetheless, the Brady principle captures the secret deal with Chobert just as firmly as it does the deal with White.
In Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989), the court reversed a conviction where the prosecutor failed to inform the defense that its main witness had applied for a sentence commutation and that a parole board meeting had been scheduled for a few days after the witness testified. Reutter is especially illuminating because the absence of an actual agreement between the witness and the prosecution was not analytically dispositive. Instead, in determining whether a disclosure duty arose, the court focused on the witness's state of mind. Through his effort to secure a benefit by testifying, and his belief that helping the prosecution would aid that effort, the witness harbored a bias -- and the prosecution was obliged to disclose the underlying basis for that bias. See also United States v. Williams, 927 F.2d 95 (2d Cir. 1991) (government witness had expectation of receiving a financial benefit from testifying, i.e., a percentage of assets seized by the government); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993) (prosecutor required to disclose its witness failed a drug test while in custody, for that information may have led to more impeachment information); United States v. Moreno-Rodriguez, 744 F. Supp. 1040 (D. Kan. 1990) (prosecution had an obligation to disclose even informal arrangements between the prosecution and its witness). [42]
Moreover, the trial court blocked defense counsel from exploring Chobert's bias by questioning him about his continued probationary status. Such an inquiry -- especially if coupled with the fact that the prosecution not only excused his illegal operation of a cab, but offered to assist him to secure a permanent license - would have given the jury a basis for evaluating Chobert's retraction of his initial police statement that the shooter fled thirty steps toward a nearby alleyway. See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Davis v. Alaska, 415 U.S. 308, 315-16 (1974). The refusal to permit a defendant to explore bias is especially egregious where it impinges on a defendant's attempt to buttress the theory of the defense. See Olden v. Kentucky, 488 U.S. 227, 230 (1988). See also Crane v. Kentucky, 476 U.S. 683, 690 (1986) (due process entails a fair opportunity of cross-examination, and a "meaningful opportunity to present a complete defense").
The prosecutor exploited the suppression of the Brady material regarding Chobert. In his closing argument, he vouched for Chobert's credibility by pointing to the absence of evidence concerning any improper motive. The prosecutor -- knowing fully that the jury was not permitted to hear evidence concerning Chobert's probationary status, his criminal history, and his economic incentive to please the Commonwealth -- asked rhetorically "What motivation would Robert Chobert have to make up a story . . . ?" (Id.: 181-82.) This improper vouching misled the jury and accentuated the prejudice from the prosecution's Brady violation. See United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993) (absent the Brady violation, "the jury might well have thought the government's arguments incredible that [the witness] was reliable in this investigation"); United States v. Krebs, 788 F.2d 1166, 1176-77 (6th Cir. 1986) (new trial ordered where prosecutor argued: "I want to suggest to you that in the trial testimony [the witness] was telling the truth. . . . Basically, she had no reason to lie"); Davis v. Zant, 36 F.3d 1538, 1548 (11th Cir. 1994); United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993); Com. v. Hallowell, 477 Pa. 232, 383 A.2d 909 (1978) (reversing conviction where prosecutor misled jury as to offer of leniency to witness).
CLAIM 2. THE STATE'S SUPPRESSION OF EVIDENCE THAT THE TRUE SHOOTER FLED TOWARDS A NEARBY ALLEYWAY VIOLATES THE BRADY DOCTRINE
A total of five witnesses, each independent of the others, observed and reported seeing someone flee from the scene of the shooting toward a nearby alleyway. Only one of those five testified in accordance with the initial report to the police (witness Dessie Hightower). One of the witnesses, Chobert, recanted his initial report. Another witness, Debbie Kordansky, was never called due to defense counsel's dereliction and the prosecution's withholding of her address. The remaining two - Veronica Jones and William Singletary - were coerced into recanting their initial reports of flight. Indeed, law enforcement endeavored to manipulate witness Hightower through prolonged interrogation and coercive use of a polygraph. Finally, the State withheld the fact that a driver's license application belonging to a third person was found on the slain officer.
Coercion of witnesses corrupts due process. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858 (1982); Alcorta v. Texas, 355 U.S. 28 (1957); Mooney v. Holohan, 294 U.S. 103 (1935); Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996)(threatening to take daughter away -- akin to tactic used against witness Veronica Jones); Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979). Because the coercion here led to the loss of exculpatory evidence, the State engaged in spoliation of exculpatory evidence. See Valenzuela-Bernal, 458 U.S. 858; Arizona v. Youngblood, 488 U.S. 51 (1988); California v. Trombetta, 467 U.S. 479 (1984). Moreover, evidence of such misconduct (including selective and coercive use of a polygraph) is properly considered by a jury to evaluate the integrity of the investigation. See Kyles v. Whitley, 115 S. Ct. 1555, 1573 (1995) (highlighting importance of defense evidence which permits an attack upon "the reliability of the investigation" or the bias of law enforcement); Stano v. Dugger, 901 F.2d 898, 903 n.28 (11th Cir. 1990). See also Wood v. Bartholomew, 116 S. Ct. 7 (1995) (under Brady doctrine, court went on to analyze withheld polygraph information's indirect impact on defense strategy even assuming such evidence was inadmissible for substantive or impeachment purposes); Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1992)(en banc), cert. denied, 118 S.Ct. 1827 (1998).
The withholding of physical evidence strongly supporting the critical point that a third person was at the scene is a classic instance of the State breaching its Brady obligations. The physical evidence at issue was the driver's license application form found on the body of the deceased officer. This piece of evidence, suppressed by the prosecution, severely undercut the prosecution's theory that the only person in the Volkswagen was Jamal's brother, and that therefore, the only persons at the scene of the crime with Officer Faulkner were Jamal and his brother. In addition to undercutting the prosecution's case, it bolstered the defense theory by buttressing the eyewitness accounts of flight from the scene. See Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995)(suppression of evidence indicating involvement of others in crime). See generally Carter v. Rafferty, 826 F.2d 1299 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988); Bowen v. Maynard, 799 F.2d 593 (10th Cir.), cert. denied, 479 U.S. 962 (1986); Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985), cert. denied, 478 U.S. 1020 (1986); Lockett v. Blackburn, 571 F.2d 309 (5th Cir.), cert. denied, 439 U.S. 873 (1978); Lambert v. Blackwell, 962 F.Supp. 1521 (E.D. Pa. 1997), vac & rem on nonexhaustion grounds, 134 F.3d 505 (3d Cir. 1998).
CLAIM 3. THE USE OF A FABRICATED CONFESSION TO SECURE A VERDICT OF GUILT AND DEATH CORRUPTED THE TRIAL PROCESS
Undercutting the defense's ability to develop and communicate to the jury its theory of defense (namely, the flight of the actual shooter) was but one prong of the State's strategy. The State sealed Jamal's fate with sham evidence of a confession. Accomplishing this task of presenting evidence of a false confession, however, required the disappearance of P.O. Gary Wakshul. Wakshul, along with his partner, Stephen Trombetta, stood guard over Jamal during the time period that he allegedly confessed to the killing. Wakshul signed a police report shortly after his guard duty ended indicating that "the Negro male made no comments." Wakshul was deemed unavailable to testify because he was allegedly "on vacation." The trial judge refused to grant a continuance, even to determine if he was within the subpoena power of the court. As it turns out, Wakshul was available to testify.
The prosecution's affirmative misrepresentation at trial that Wakshul was "unavailable" to testify was tantamount to spoliation of Brady evidence. See, e.g., Valenzuela-Bernal, 458 U.S. 858; Freeman v. Georgia, 599 F.2d 65 (5th Cir. 1979). Further, the prosecution has the added duty not to proffer a false picture to the jury. Under the doctrines of Alcorta v. Texas, 355 U.S. 28 (1957), and Mooney v. Holohan, 294 U.S. 103 (1935), Jamal is entitled to a new trial because the prosecution willfully presented a false picture to the jury. Any time there has been a deliberate deception by the prosecution, the result is a "contrived . . . conviction" through the "pretense of a trial which in truth is but a means of depriving a defendant of liberty." Mooney, 294 U.S. at 112. Whenever the prosecution has deliberately permitted a witness to create in the jurors' minds a false impression of the true facts -- whether through the witness' ignorance, misinformation, innocent misunderstanding, or perjury -- the courts treat such misconduct with equal reprehension. See Miller v. Pate, 386 U.S. 1, 7 (1967); Napue v. Illinois, 360 U.S. 264, 269 (1959).
The prosecution here proceeded with highly impeachable "confession" evidence and countenanced a state of affairs whereby the jury was never permitted to hear evidence which unquestionably devastates, at the least, that aspect of its case, if not its entire case. This the prosecution may never do. See Alcorta v. Texas, supra; Mooney v. Holohan, supra. See also Justice v. Hoke, 90 F.3d 43 (2d Cir. 1996). Finally, Wakshul's testimony would have cast a devastating pall over the entire investigation into the shooting, thus becoming the centerpiece to a defense claim that law enforcement rushed to judgment through a biased investigation against a highly vocal critic of police brutality in Philadelphia and notable supporter of the Move organization. See Kyles v. Whitley, 115 S.Ct. 1555, 1573 (1995).
CLAIM 4. THE STATE'S DESTRUCTION AND/OR SUPPRESSION OF PHYSICAL EVIDENCE DEPRIVED JAMAL OF DUE PROCESS
The Petition alleges that ballistics and medical evidence was either suppressed or destroyed. Without that evidence, the defense was unable to establish that the alleged murder weapon did not match the physical facts derivable from a competently conducted autopsy. Moreover, the State withheld evidence that Jamal's hands, face and torso contained no gunshot residue and that the alleged murder weapon did not have the characteristics of a recently fired weapon. This suppression/destruction of evidence also corrupted the trial process. See Arizona v. Youngblood, 488 U.S. 51 (1988); Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964).
CLAIM 5. THE STATE'S FAILURE TO DISCLOSE POLICE SURVEILLANCE FILES DEMONSTRATING LONGSTANDING POLICE BIAS AGAINST JAMAL VIOLATED THE PROSECUTION'S BRADY OBLIGATIONS
At the time of his arrest, Jamal was vocal critic of the Philadelphia police and a visible supporter of the Move organization. He was also a one-time member of the Black Panther Party. It is undisputed that law enforcement - both local and federal - surveilled Jamal since his days in the Black Panther Party. The State failed to provide those files to the defense. Evidence of prior police surveillance, unconnected to actual and legitimate suspicion of criminality, would have shown law enforcement's bias in its investigation, and thus bolstered the defense theory that law enforcement hastily concluded that Jamal was guilty. See Kyles,115 S.Ct. at 1573. This evidence also adds force to the defense theory that law enforcement's overzealousness prompted the fabrication and manipulation of evidence.
CLAIM 6. DEFENSE COUNSEL'S PREJUDICIALLY DEFICIENT GUILT PHASE PERFORMANCE VIOLATES THE STANDARDS SET FORTH IN STRICKLAND V. WASHINGTON
The Petition recounts, and the record amply supports, the many layers of prejudicially deficient performance by Jamal's trial counsel. Jackson was professionally unfit and logistically ill-equipped to handle a case of this magnitude. He spoke forthrightly to the state trial court of his difficulties in fulfilling his obligations as counsel. The ominous pretrial signs of trouble erupted into outrageous oversights and blunders during the course of the trial. Defense experts and investigators were not retained; and prosecution experts and fact-witnesses not adequately challenged. Materially favorable defense witnesses were never summoned to testify. Nor did defense counsel protect Jamal against prosecutorial overreaching in such matters as the selection of a race-sanitized jury, improper argumentation before the jury, and the introduction of fabricated, as well as prejudicially irrelevant, evidence. Indeed, defense counsel admitted defeat at the outset of trial, openly lamenting to the trial court that he could see no defense to the case.
The multi-layered deficiencies in defense counsel's performance was objectively unreasonable and hugely prejudicial. A powerful defense theory, centered upon the indisputable fact that five witnesses independently observed flight from the scene of the crime towards a nearby alleyway, was never developed and communicated to the jury. A devastating assault on the prosecution's use of a patently false confession and an attack on its reliance on dubious scientific evidence were bypassed. Physical evidence was never adduced to show that the key eyewitness's (White's) trial testimony, upon which rested the prosecution's theory of what happened on the night in question, was physically impossible. In short, defense counsel never forced the prosecution's case to "survive the crucible of meaningful adversarial testing." United States v. Cronic, 466 U.S. 648 (1984). Under these circumstances, Jamal's guilt-phase conviction must be set aside. See Strickland v. Washington, 466 U.S. 668, 696 (1984); Appel v. Horn, 1999 WL 323805 (E.D.Pa. 1999). [43] The lack of funds, and Jackson's minimal effort to secure funds, exacerbated the prejudicially deficient performance by ensuring that vital expert and investigative assistance was unavailable. See Bloom v. Calderon, 132 F.3d 1267 (9th Cir.), cert. denied, 118 S.Ct. 1856 (1998)(failure to retain expert); Williamson v. Ward, 110 F.3d 1508 (10th Cir. 1997)(failure to investigate due to lack of funding); Little v. Armontrout, 835 F.2d 1240 (8th Cir. 1987); Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980). Defense counsel's dereliction in preventing prosecutorial overreaching also deepened the damage done to Jamal's interests. See Kimmelman v. Morrison, 477 U.S. 365 (1986)(failure to make obvious objection); Sullivan v. Louisiana, 508 U.S. 275 (1993)(failure to object to "beyond reasonable doubt" instruction); Mason v. Scully, 16 F.3d 38 (2d Cir. 1994)(failure to object on hearsay and confrontation grounds); Gov't of Virgin Islands v. Forte, 865 F.2d 59 (3d Cir. 1989) (failure to preserve Batson issue constituted ineffective assistance). The fact that defense counsel assumed the role of lead counsel on the day the trial began guaranteed that his performance would be wanting. See, e.g., Magill v. Dugger, 824 F.2d 879 (11th Cir. 1987)(counsel took over case at last minute and did not adequately prepare). Finally, counsel's virtual admission of defeat before a single witness was called constituted a "total failure to actively advocate his client's cause." Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), cert. denied, 118 S.Ct. 1827 (1998).
CLAIM 7. THE COURT-CREATED CONFLICT OF INTEREST BETWEEN COUNSEL AND JAMAL CONSTITUTES A PER SE VIOLATION OF THE SIXTH AMENDMENT
Defense counsel took over the defense of Jamal when opening statements were given. He did not anticipate taking over the case. Nor was he prepared to do so. Caught by surprise and unprepared, defense counsel had to litigate a complex capital case under the cloud of a deep and irreconcilable conflict of interest. Specifically, as the Petition makes clear, a rift developed between defense counsel and Jamal, leading to a total breakdown in attorney-client communication. This disintegration in the attorney-client relationship led to Jamal's resolute demands to restore his pro se status, which in turn provoked the trial judge to banish him from significant aspects of the trial. Alone in the courtroom to defend a client with whom he had no meaningful relationship, defense counsel was left to embark on a series of "shoot-from-the-hip" trial decisions which destined the trial result long before the verdict was rendered.
The trial court simply disregarded the fact that a disintegration in the attorney-client relationship led to a breakdown in the adversarial process. Where an unbridgeable rift between counsel and client causes the communication between them to break down, counsel's ability to perform the constitutional function contemplated by the Sixth Amendment is fatally compromised, for the adversarial process demands that the accused have "counsel acting the role of an advocate." Anders v. California, 386 U.S. 738, 743 (1967). Justice Brennan put it best in his dissent in Jones v. Barnes, 463 U.S. 745, 758 (1983): "To satisfy the Constitution, counsel must function as an advocate for the defendant, as opposed to a friend of the court." It is thus well settled that the Sixth Amendment right to counsel contains a correlative right to representation that is unimpaired by conflicts of interest, by divided loyalties, see, e.g., Cuyler v. Sullivan, 446 U.S. 335 (1980), or by unbridgeable rifts between counsel and client. See, e.g., Wood v. Georgia, 450 U.S. 261, 271 (1981); Von Moltke v. Gillies, 332 U.S. 708, 725 (1948); Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991).
Consequently, courts have held that it offends the fundamental precepts of the Sixth Amendment to foist upon a defendant a lawyer with whom he cannot communicate or whom he does not trust. See United States v. Williams, 594 F.2d 1258, 1259-61 (9th Cir. 1979); Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970). In Brown, the defendant "was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not . . . communicate. Thus, the attorney was understandably deprived of the power to present any adequate defense in [defendant's] behalf." 424 F.2d at 1169. As a result of this conflict between defendant and attorney, the Ninth Circuit concluded that the defendant was denied effective assistance of counsel. In Williams, the attorney-client relationship "had been a stormy one with quarrels, bad language, threats, and counterthreats." 594 F.2d at 1260. The court found that the irreconcilable conflict frustrated the attorney's ability to provide the effective assistance of counsel that the Sixth Amendment guarantees.
As in Williams and Brown, the court compelled defense counsel to proceed in the face of an irreconcilable rift between him and Jamal. At several junctures in the trial, defense counsel complained to the court that Jamal and he were not on speaking terms. This engendered several requests by defense counsel to be relieved as counsel for Jamal. These requests were summarily denied. Nonetheless, the court acknowledged defense counsel's "problem with Jamal" (Tr. 6/26/82: 138) -- an acknowledgment of the obvious rift.
The essential teaching of Williams and Brown mandates a new trial: "to compel one charged with grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any counsel whatsoever." Brown, 424 F.2d at 1170. See also United States v. Walker, 915 F.2d 480, 484 (9th Cir. 1990) (citing Brown, court found a Sixth Amendment violation because the conflict between defendant and attorney resulted in a "perfunctory" defense). Defense counsel could not perform his duty as advisor and counselor to Jamal, for Jamal had "no faith in anything I say." (Tr. 6/17/82: 1.65-66.) In short, defense counsel could not perform the fundamental tasks which the Constitution assigns to a defense attorney.
The breakdown need not have gone so far. Apprised of a defendant's dissatisfaction with his attorney, a court "has an obligation to inquire thoroughly into the factual basis of defendant's dissatisfaction." Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991), quoting United States v. Hart, 557 F.2d 162, 163 (8th Cir. 1977)(per curiam). The trial court here failed to confront the problem in any meaningful manner, instead telling defense counsel to "fight that out with Mr. Jamal" and then resorting to the extreme sanction of removing Jamal from his capital trial. The court's failure to inquire and remedy the growing conflict clearly violated Jamal's constitutional right to effective assistance of counsel. Id.; Hart, 557 F.2d at 163. Cf. Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982) (court should conduct inquiry into source of difficulties between counsel and client and "ease the defendant's dissatisfaction, distrust, or concern.").
CLAIM 8. THE TRIAL COURT'S OBSTINANCE IN REFUSING TO PROVIDE ADEQUATE FUNDS FOR SECURING EXPERT AND INVESTIGATIVE SERVICES VIOLATED JAMAL'S DUE PROCESS RIGHTS AS ESTABLISHED IN AKE v. OKLAHOMA
A minimally effective defense required the services of (1) a pathologist (to show that the prosecution's theory of what happened was physically impossible), (2) a ballistician (to show that Jamal and his gun could not be connected to the shooting), and (3) an investigator (to locate favorable witnesses and expose the prosecution's manipulation of witnesses). As explained in the Petition, the state court system failed to provide funding for these services. The result was devastating: the prosecution gave the jury an unchallenged and misleading impression that the physical evidence pointed to Jamal's guilt and that the fact-witnesses were uncorrupted by law enforcement and prosecutorial influence. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087 (1985)("an accused is entitled to the assistance of experts necessary to prepare a defense"); Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994); Buttrum v. Black, 908 F.2d 695 (11th Cir. 1990).
CLAIM 9. THE FLAT REFUSAL TO ACCORD DEFENSE COUNSEL THE OPPORTUNITY TO SECURE WITNESS WAKSHUL'S ATTENDANCE, BY GRANTING A BRIEF CONTINUANCE, REVEALS JUST HOW UNFAIR THE PROCEEDINGS WERE AND GUARANTEED THAT THE JURY WOULD CONVICT AND VOTE FOR DEATH
The trial judge's unjustified refusal to grant a continuance to secure Wakshul's attendance - indeed, his recalcitrance in the face of defense counsel's pleas to determine even if Wakshul was in the jurisdiction - deprived Jamal of his due process rights. See Chambers v. Mississippi, 410 U.S. 284 (1973) (right to present a defense); Government of Virgin Islands v. Mills, 956 F.2d 443, 445 (3d Cir. 1992) (due process mandates continuance to permit presentation of critical defense witnesses).
If ever a witness was needed in a trial, it was Wakshul. The "confession" evidence portrayed Jamal as more than just a cop killer. It depicted him as a savage criminal bereft of any semblance of decency and humanity. The "confession" evidence, if unchallenged, left no doubt that Jamal was guilty; and it no doubt was the driving force behind the decision to impose death. No adequate defense of Jamal could leave this item of evidence uncontested. No minimally prepared defense attorney could conceivably overlook Wakshul's importance in attacking the prosecution's claim that Jamal confessed. No trial judge at all concerned with fairness could blithely ignore the pleas of defense counsel for a modest amount of time to secure this witness's attendance simply because the prosecution (now known to be in bad faith) claimed that this witness was unavailable. Yet, such is the record here. [44]
In fact, the "confession" evidence, because it was left unchallenged, set the tone for the prosecution's penalty phase strategy. Defense counsel failed to call a single mitigation witness, thus leaving the jury with the portrait of Jamal derived from the "confession." The prosecutor, to root the "confession" into Jamal's character, unfairly characterized him as a political radical who had no qualms about killing "authority" figures who stand in his path. The "confession," the prosecution implied, was an outgrowth of Jamal's political radicalism, which, the prosecution further maintained, also prompted Jamal's courtroom outbursts over the abridgment of his pro se rights. The uncontested manufactured "confession" evidence, the Dawson error (see infra Point XXII), and the abridgment of Jamal's Faretta rights (see infra Point XI), coalesced to provide the prosecutor with the opportunity to provide a gross caricature for the jury which had no connection to reality. See Point XXI.
This case presents a classic instance where a continuance should have been granted, if only to ameliorate the prejudice flowing from defense counsel's inexcusable dereliction in securing Wakshul's attendance through a subpoena before trial began.
CLAIM 10. THE TRIAL COURT PREVENTED JAMAL FROM DEVELOPING HIS DEFENSE THROUGH DIRECT AND CROSS-EXAMINATION
As fractious, disjointed, and feeble as defense counsel's performance was, he did make attempts to elicit favorable evidence through the examination of witnesses. In two key respects defense counsel's efforts were unjustifiably blocked.
First, the trial court blocked defense counsel's effort to elicit from witness Veronica Jones information indicating that she and chief prosecution witness Cynthia White had been offered and/or given special favors to slant their testimony in the prosecution's favor. Witness Jones, fourteen years later, testified in a PCRA hearing that she had not only been coerced into slanting her testimony in favor of the prosecution, but that she was strong-armed into retracting her observation of seeing two men flee the crime scene (consistent in terms of location and direction as four other eyewitness accounts). Jones' trial testimony was indisputably relevant, as a witness's alliance with one side of the litigation (no matter how forged) is always appropriate for jury consideration. See, e.g., United States v. Giglio, 405 U.S. 150, 154 (1972). Indeed, Jones's information is particularly illuminating in view of what the medical evidence reveals about Jamal's gunshot wound - namely, that the downward trajectory of the bullet traveling through his torso renders White's supposed eyewitness account an impossibility.
Second, the trial court blocked defense counsel's effort to elicit from witness Robert Chobert his prior bad act of throwing a Molotov cocktail into a school, for which he was convicted and then-presently serving out his probation, and his DWI conviction. This too was probative of Chobert's credibility - perhaps not as probative as the withheld information concerning his secret deal with the prosecution, but probative nonetheless. A witness's probationary status, particularly for a heinous act, and a DWI conviction for a taxi driver, renders him vulnerable to State pressure. On that basis, a jury is entitled to consider that evidence to evaluate the prospect of that witness slanting his testimony in the prosecution's favor.
This dual restriction on the examination of two important witnesses resulted in a fundamentally unfair trial. See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Davis v. Alaska, 415 U.S. 308, 315-16 (1974); Olden v. Kentucky, 488 U.S. 227, 230 (1988)(refusal to permit a defendant to explore bias is especially egregious where it impinges on a defendant's attempt to buttress the theory of the defense). See also Crane v. Kentucky, 476 U.S. 683, 690 (1986) (due process entails a fair opportunity of cross-examination, and a "meaningful opportunity to present a complete defense"); Chambers v. Mississippi, 410 U.S. 284 (1973).
CLAIM 11. ALTHOUGH CONSTITUTIONALLY ENTITLED TO REPRESENT HIMSELF, JAMAL WAS STRIPPED OF THAT RIGHT WITHOUT JUSTIFICATION AND HAD FOISTED UPON HIM AN UNWILLING AND UNPREPARED ATTORNEY
Because a defendant's decision regarding his legal representation is "the most important decision . . . in shaping his defense," (United States v. Laura, 607 F.2d 52, 56 (3d Cir. 1979)), any interference with that decision raises deep constitutional concerns. The court interfered with Jamal's decision to represent himself when he put the voir dire into the hands of an unprepared and unwilling defense attorney. That he did so under the guise of controlling the flow of the proceedings does not eclipse this constitutional error. See McKaskle v. Wiggins, 465 U.S. 168, (1984); Faretta v. California, 422 U.S. 806 (1975). Cf. Peters v. Gunn, 33 F.3d 1190 (9th Cir. 1994)(trial court improperly denied petitioner's right to self representation on ground that petitioner lacked adequate legal acumen). [45]
Although the court intimated that Jamal's right to self-representation was unaffected by placing the task of voir dire in the hands of defense counsel, the law views the matter quite differently. First, the jury's impression of who actually was conducting the defense was irreversibly tainted by the court's actions. Meaningful self-representation involves having a full opportunity to perform those functions associated with being a trial attorney in front of a jury. See McKaskle, 465 U.S. 168. [46] Second, the court improperly foisted upon Jamal an attorney he neither wanted nor trusted. It is unconstitutional to force an attorney upon a defendant who wishes to proceed in his own behalf. See, e.g., United States v. Benefield, 942 F.2d 60 (1st Cir. 1991); McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985). Third, by placing defense counsel in the lead counsel role, the court violated Jamal's right to counsel of his choice, independent of his right to proceed on his own behalf. See United States v. Romano, 849 F.2d 812, 819 (3d Cir. 1988) (defendant who loses pro se status does not lose the right to retain counsel of choice).
A primary purpose of the Sixth Amendment is to grant a criminal defendant control over the conduct of his defense, as "it is he who suffers the consequences if the defense fails." Faretta, 422 U.S. at 820. This fact was never lost upon Jamal. He repeatedly complained that no one but himself felt the full significance of the trial; that the trial was, in literal terms, a life or death proposition. (E.g., Tr. 7/1/82: 41.) Jamal was ultimately convicted after he lost control over the conduct of his own case. Indeed, this de facto elevation of defense counsel into the role of lead counsel had a devastating effect on the fairness of the trial, as it led to Jamal's banishment. It is no exaggeration to say that the trial thereafter became a mockery of the adversarial process.
CLAIM 12. HAVING PREPARED HIS OWN DEFENSE IN PREPARATION TO REPRESENT HIMSELF, JAMAL WAS NOT ONLY STRIPPED OF THAT RIGHT, BUT WAS ALSO PREVENTED FROM ASSISTING IN HIS DEFENSE AND CONFRONTING SEVERAL KEY PROSECUTION WITNESSES
Jamal, like all criminal defendants, was endowed with the right to be present at every stage of his trial. See Faretta, 422 U.S. at 819-21 (1975). That right is not waivable in capital cases. See Diaz v. United States, 223 U.S. 442 (1912). See also Lewis v. United States, 146 U.S. 370 (1892); Hopt v. Utah, 110 U.S. 574 (1884); Near v. Cunningham, 313 F.2d 929, 931 (4th Cir. 1963). Even if it were waivable, Jamal's forced removal from his trial mandates the grant of a new trial because: (1) all of the alleged "disruptions" involved Jamal's protests against the abridgement of his right to represent himself; and (2) even if justified, the removal was not appropriately tailored to protect Jamal's concomitant right to communicate with counsel and otherwise participate in his own defense.
Jamal was absent for portions of the trial day on June 18, 22, 23, 24, 25, 26 and 28. [47] In each instance when he was ejected, Jamal was deemed to be too disruptive in persistently protesting his inability to represent himself. Jamal disputed the characterization that he was disruptive or unruly. The court's decision to expel Jamal from the courtroom based on these "disruptions," as well as depriving him of his pro se rights based on these "disruptions," was improper. See United States v. Dougherty, 473 F.2d 1113, 1126-27 (DC Cir. 1972). In Dougherty, the defendants sought permission to proceed pro se. The trial court denied the application. On appeal, the government argued that "'disruptive' incidents following the denial of the pro se motions" provide justification for the trial court's denial. Id. at 1126. The court spurned that argument, noting that "[t]his is like using the fruit of an unreasonable search to provide a cause making the search reasonable." Id. The court went on to explain that:
Nearly all of the incidents cited by the Government concerned assertions of the right to self-representation. It would be anomalous to hold that the denial of one's right can be justified by reference to the nature of subsequent complaints protesting that denial. Id.
The circumstances here were even more compelling than in Dougherty, for these proceedings were a life or death enterprise. Moreover, the so-called disruptions and outbursts here all followed the court's denial of Jamal's pro se rights. Even assuming the court acted with proper discretion in forcibly removing Jamal from major segments of his capital trial, the court nonetheless violated his Fifth and Sixth Amendment rights by totally severing all ability to follow or influence the trial events as those events were occurring, therefore stripping away any ability to participate meaningfully. Specifically, the court violated Jamal's rights because it failed to consider, and deploy, available technology to ensure that Jamal could contemporaneously monitor the proceedings, as well as promptly communicate with court-appointed counsel. See U.S. ex rel. Boothe v. Superintendent, 506 F. Supp. 1337 (E.D.N.Y.), rev'd on procedural grounds, 656 F.2d 27 (2d Cir. 1981). In Boothe, the court found a due process violation based on the state's failure to provide the technological equipment necessary for the defendant to stay apprised of the proceedings and communicate with his lawyer:
Due process requires the courts to adjust to changing technology. The meaning of the Constitution may remain the same but its manifestations and impact vary with time. . . . At any given time, the process that is due defendants must be a function of the rapidly evolving technology that is contemporaneously available.
Id. at 1345.
It will not do to assert that Jamal's own conduct precludes a prejudice claim arising from the expulsions. As Judge Weinstein remarked in Boothe a defendant's "own misbehavior . . . does not vitiate his right to insist that the prejudice be mitigated as far as reasonably possible." 505 F. Supp. at 1344. The right to be present is an essential concomitant of the right to effective assistance of counsel and of the right to participate in one's own trial. Cf. Faretta v. California, 422 U.S. 806, 819-22 (1975). Hence, in his concurrence in Illinois v. Allen, 397 U.S. 337 (1970), Justice Brennan advised trial courts that when a defendant is removed from court "the court should make reasonable efforts to enable him to communicate with his attorney and, if possible, to keep apprised of the progress of his trial. Once the court has removed the contumacious defendant, it is not weakness to mitigate the disadvantages of his expulsion as far as technologically possible in the circumstances." 397 U.S. at 351. See also United States v. Ives, 504 F.2d 935 (9th Cir. 1974); Stewart v. Corbin, 850 F.2d 492, 499-500 (9th Cir. 1988) (defendant offered a room where he could hear the proceedings); United States v. Munn, 507 F.2d 563, 567 (10th Cir. 1974) (defendant "was able to hear the progress of his trial through a broadcasting system"); United States v. Washington, 705 F.2d 489, 497 n. 4 (D.C. Cir. 1983) (closed circuit television).
CLAIM 13. JAMAL'S ABSENCE FROM TWO SUBSTANTIVE IN CAMERA CONFERENCES VIOLATED HIS DUE PROCESS RIGHTS AS PRO SE COUNSEL AND AS AN ACCUSED WHO IS ENTITLED TO BE PRESENT AT ALL CRITICAL STAGES OF THE TRIAL
The court below held two in camera conferences outside Jamal's presence. Jamal's absence from these conferences violated (1) his Sixth Amendment right to self-representation, see Faretta, 422 U.S. at 819, n. 15, and (2) his Fifth and Sixth Amendment rights as an accused to be present at all critical stages of the trial. Indeed, "the right to presence in capital cases is so fundamental that the defendant cannot waive it." Hopt v. Utah, 110 U.S. 574, 579 (1884). See generally United States v. Gagnon, 470 U.S. 522, 526 (1985). On June 18, prior to opening statements, the court held an on-the-record conference in chambers outside Jamal's presence. The court apprised Jackson and the prosecutor that a black juror had violated the jury sequestration order. (6/18/82 Tr. 2.35-43.) Without Jamal's knowledge or input, the court dismissed Dawley and replaced her with a white alternate who had expressed his clear prejudice against Jamal. [48] The court also discussed its expectation that Jamal would be ejected from the courtroom. In another in camera conference on June 28, the court explored whether admissible evidence existed indicating that a police officer other than the deceased shot Jamal. (6/28/82 Tr. 28, 2-3.) Again, Jamal was not present during this conference. The court insisted that the hearing on this issue be conducted in secret, to which Jamal objected. [49]
Jamal's absence from the June 18 in camera conference violated his right to be present as attorney of record. As noted above, a defendant who proceeds pro se is entitled to retain actual control over his defense to the same extent as a lawyer at the bar. See McKaskle, 465 U.S. at 178-79. Accordingly, the exclusion of Jamal from the June 18 in camera conferences blatantly violated his Faretta rights. See Oses v. Com. of Mass., 775 F.Supp. 443 (D.Mass. 1991), aff'd, 961 F.2d 985 (1st. Cir. 1992). [50] Like Jamal, the Oses defendant elected to proceed pro se. As here, standby counsel was appointed. As here, the defendant objected to his participation and standby counsel requested that he be allowed to withdraw. Id. at 448. Among the topics discussed outside defendant's presence in the Oses conferences was his ability to proceed pro se - - a topic which figured prominently here in the June 18 conference. The Oses court reversed defendant's fourteen-year old conviction, finding inter alia that "[t]he judge's unilateral decision to conduct these conferences outside Oses's presence . . . violated the petitioner's sixth amendment right to retain control over his defense." Id. at 458. The Oses court's observation is fitting here: "the trial judge took the unusual step sua sponte of conducting discussions regarding the defendant's trial outside the presence of the person Faretta and McKaskle teach must retain actual control over the pro se defense." Id.
The exclusion from the in camera proceedings also violated Jamal's rights as an accused to be present at all critical stages of the proceedings, since both conferences went beyond perfunctory scheduling matters and purely legal issues. [51] On June 28, Jamal was excluded because he insisted that the hearing be public. The court improperly denied Jamal's right to a public trial sua sponte. See United States v. Simone, 14 F.3d 833, 840-41 (3d Cir. 1994) (trial judge must "outline why he felt the situation would be coercive or indicate why he felt that the presence of the press would have a greater effect in this case than it has on any other kind of testimony"). See also Ayala v. Speckard, 89 F.3d 91 (2d Cir. 1996)(closure of courtroom to protect identity of undercover officer violated petitioner's right to public trial). Here, the court did not even make a pretense of analyzing why an in camera hearing was necessary. Indeed, there could be no possible justification because the jury was sequestered. Rather, the court relied solely on the fact that the press and public would be highly interested in the testimony. Jamal's exclusion from the June 28 in camera proceeding thus stemmed explicitly from the court's decision that the hearing not be public. The court permitted Jamal to be present only on the condition that he sacrifice another fundamental constitutional right -- the right to a public trial. [52] Placing that condition on Jamal forced him to abandon one constitutional right if he was to enjoy another non-conflicting constitutional right. There was no articulation of any legitimate "higher values" at stake to justify the employment of a secret hearing, particularly given that the jury was sequestered. Simone, 14 F.3d at 842. [53]
CLAIM 14. THE JURY WAS POISONED WITH A VENOMOUS GUILT-PHASE CLOSING ARGUMENT THAT WENT BEYOND THE BOUNDS OF FAIR PROSECUTORIAL ADVOCACY
Throughout its summation the prosecution struck improper blows against the defense, violating Mr. Jamal's Fifth, Sixth and Eighth Amendment rights. The prosecution diminished the jury's role with the claim that their decision was neither momentous nor final, as Jamal would have the right to appeal after appeal. The prosecution also inexcusably commented on the defense's failure to present certain evidence -- evidence which the court had barred from the trial; the prosecution vouched for witnesses and referred to matters not in evidence; and it invoked the discredited "law and order" theme, asking the jury to convict Jamal because the people of Philadelphia "demand" it in this highly publicized case. Viewing the summation in its totality, as the court must, the prosecution's improper remarks "so infected the trial with unfairness as to make the conviction a denial of due process," thereby mandating a new trial. Davis v. Zant, 36 F.3d 1538, 1545 (11th Cir. 1994). See also Lesko v. Lehman, 925 F.2d 1527, 1541 (3d Cir. 1991), cert. denied, 502 U.S. 898 (1991)(prosecutor's closing comments "considered cumulatively"); Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (same).
A. The Prosecutor Diminished The Jury's Sense Of Its Role And Responsibility In Holding The Prosecution To Its Burden Of Proof By Telling The Jury That Jamal Would Have "Appeal After Appeal"
The prosecutor unconstitutionally undermined the reasonable doubt standard and the jury's responsibility for its decision by stating:
"[Y]ou as a unit are in a position of deliberating and reaching a decision and a decision of finality to a certain degree. If your decision of course were to acquit, to allow the Defendant to walk out, that is fine. There is nothing I can do and there is nothing that the judge or anyone could do that would affect that in any way. If you find the Defendant guilty of course there would be appeal after appeal and perhaps there could be a reversal of the case, or whatever, so that may not be final."
(7/1/82 Tr. 146)(emphasis added)
This argument diminished the jury's sense of its role and responsibility in holding the prosecution to its burden of proof. The intent and effect of this argument was to shift the burden of proof onto the defense by cautioning the jury to resolve doubts in favor of conviction, because a conviction, unlike acquittal, would not be "final." See Caldwell v. Mississippi, 472 U.S. 320 (1985).
B. The Prosecutor Denigrated Jamal's Exercise of Constitutional Rights
The prosecution's closing ridiculed Jamal's assertion of his Sixth Amendment rights:
Will you understand that the Defendant is on trial for taking somebody's life, too. That is one thing we hadn't heard much about. It maybe true and indeed it is true that Daniel Faulkner on December 9th, at 3:50, as he looked up at the barrel of this gun did not have an opportunity to ask for any type of counsel, or to make any type of abusive remarks in relation to anybody, the system, the laws or anything. No one quickly ran down and said, "Do you want an attorney?"
(7/1/82 Tr. 147-48 (emphasis added.)
The prosecutor repeated this theme, referring to the deceased officer as "[t]hat man down there without an attorney . . . to assist him at that time." (Id. at 151.) These comments were meant to call to mind Jamal's trial conduct where he vigorously asserted his rights to self-representation and assistance of counsel. Thus, the prosecution exploited Jamal's difficulties with the trial court over his right to represent himself, while also shining a light on his insistence on exercising his constitutional rights. This reliance on non-evidence rooted in conflicts over legal issues was improper. See Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990); United States v. McDonald, 620 F.2d 559, 563 (5th Cir. 1980). See also Fields v. Leapley, 30 F.3d 986 (8th Cir. 1994). See generally Lesko v. Lehman, 925 F.2d 1527 (3d Cir.), cert. denied, 502 U.S. 898 (1991).
The prosecution further improperly commented on Jamal's "arrogant" pro se confrontations with the court to somehow bolster the disputed confession and prove Jamal's "vicious" frame of mind:
Perhaps you may find those very consistent with the type of evidence you may have seen and as a matter of fact what you may have seen even in this courtroom. This sort of thing, ladies and gentlemen, when you arrive at the hospital and with the action that was just done and you speak out and you proclaim almost in a boastful and defiant way you say, "I shot him and I hope he dies." . . . All of this and in particular the conduct of this Defendant. I plead to you consider the thrust of such arr[o]gance and hostility and injustice.
(Id. at169, 186; emphasis added.)
The prosecution even invited the jury to draw a negative inference from Jamal's failure to take the witness stand:
[A]lthough they have no burden to do anything, of all that they had, all that was presented to them over that period of time you saw what the defense put on, and they don't have any burden that is true, but -- [objection overruled] Are they suggesting that there was a third man, a fourth man, or is he doing this all for his brother? I ask you to look through all this, as well as any other strategy or tactics you have seen during the whole of this particular trial and recognize it for what it is.
(7/1/82 Tr. 171-72.)(emphasis added)
An argument violates the accused's Fifth Amendment rights when "the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Lesko v. Lehman, 925 F.2d at 1544 (quoting United States v. Chaney, 446 F.2d 571, 576 (3d Cir. 1971)). See Griffin v. California, 380 U.S. 609, 614 (1965)(Fifth Amendment forbids "comment on the refusal to testify"); Gravley v. Mills, 87 F.3d 779 (6th Cir. 1996); United States v. Alfonso-Perez, 535 F.2d 1362 (2d Cir. 1976). Here the plain meaning of the comment was that if Jamal's brother or a third person shot the officer, Jamal could very easily have taken the stand and said so. Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) ("prosecution juxtaposed the 'Fifth Amendment burden of proof beyond a reasonable doubt' with the argument that 'if there was confusion in this case, from whence did that come? . . . If there were facts left out in this case, from whence did that come?'"). Cf. Agard v. Portuondo, 117 F.3d 696 (2d Cir. 1997).
C. The Prosecution Inflamed And Prejudiced The Jury in This High Profile Case by Urging That The "People of Philadelphia" Demand "Action" to Avenge The Officer's Death
The prosecutor appealed to community sentiment and other irrelevant factors in order to raise the jury's passion to a fever pitch:
This is one vicious act. This is one uncompromising vicious act. This is one act that the people of Philadelphia, all of them, all of you everywhere is outraged over. This act demands action. This act demands a reasonable view and the result of responsibility and courage. . . . An officer of the law who serves two years in service and assists individuals throughout that time, some of whom have testified here. He helped a rape victim and mother of the victim and the last arrest he ever made. That man as a member of the Police Force comes back from war and is faced with a war on the street right at 13th and Locust. Ladies and gentlemen, I ask you, all of us, the Commonwealth, the people of this city, reach out to you and demand justice. Look right at that intent to kill and that man who did it with that weapon and say, "The evidence is clear to all of us. You are guilty of first degree murder."
(7/1/82 Tr. 172, 187)(emphasis added.)
"A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking." United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992) (quoting United States v. Monaghan, 741 F.2d 1434 (D.C. Cir. 1984); Com. v. LaCava, 666 A.2d 221 (1995).
D. The Prosecution Improperly Vouched for Two Key Witnesses
Improper vouching can take two forms: "the government cannot argue the credibility of a witness based on the government's reputation or allude to evidence not formally before the jury." United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir. 1991). Here, the prosecution engaged in both methods of vouching. The prosecutor, in bad faith (in view of the secret deal between Chobert and the prosecutor) supplied his personal assurance of witness Robert Chobert's veracity, despite knowing that evidence of his bias and motive had been withheld from the defense and the jury. (7/1/82 Tr. 179, 181-82.) In United States v. Krebs, 788 F.2d 1166, 1176-77 (6th Cir. 1986), a prosecutor made almost identical remarks: "I want to suggest to you that in the trial testimony [the witness] was telling the truth. . . . Basically, she had no reason to lie." Id. Those comments were held to be "inexcusable" vouching which required a new trial. Id.
The prosecution compounded this impropriety when it exploited the defense's inability to attack Chobert's credibility due to the court's evidentiary bar against such an attack. The prosecution rhetorically asked: "What motivation would Robert Chobert have to make up a story within thirty-five to forty-five minutes later?" (7/1/82 Tr. 182-83.) This rhetorical question was predicated on the fact that the defense did not elicit a motivation for Chobert to alter his testimony in favor of the prosecution. Yet, the prosecution was well aware that Jamal had been precluded by the court from showing Chobert's bias. Specifically, Jamal had attempted to establish that Chobert, a cab driver, was on parole for drunk driving and therefore plainly subject to police intimidation -- but the prosecutor vehemently objected and the court precluded such evidence. See United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1992) (vacating conviction because government falsely stated in closing that a witness was unavailable to testify when in reality that witness was available under a cooperation agreement). "Little time and no discussion is necessary to conclude that it is improper for a prosecutor to use misstatements and falsehoods." Davis v. Zant, 36 F.3d 1538, 1548 (2d Cir. 1990).
The prosecutor also improperly vouched for the credibility of Priscilla Durham by suggesting that another non-testifying individual, identified as "LaGrand," also heard Jamal confess: "Priscilla Durham. Present was also LaGrand as he comes in and makes that statement." (7/1/82 Tr. 173.) "Implying the existence of additional evidence not formally before the jury severely impairs the likelihood of a fair trial." Eyster, 948 F.2d at 1207. "The prosecution's vouching was an unfair and foul blow" undermining any possibility of a fair verdict. Id. at 1208. Cf. Miller v. Pate, 386 U.S. 1 (1967).
E. The Prosecution Unfairly Took Advantage Of The Court's Rulings Precluding Jamal From Presenting A Defense
The prosecution misled the jury by arguing that Jamal's failure to put on the precluded evidence showed that no such evidence existed:
[F]ifty-seven statements all given to the defense, with one hundred and twenty-five other statements all given to the defense, with all sorts of medical reports and ballistic reports and chemical reports and property receipts and all physical evidence. . . . all that was presented to them over that period of time you saw what they put on.
(7/1/82 Tr. 171.)
The prosecutor knew the witnesses' addresses were deleted from the reports containing their statements; he knew that the defense had been unable to present witnesses Kordansky and Wakshul; and he knew that defense counsel had been unsuccessful in securing funds for expert and investigative assistance. Kojayan, 8 F.3d 1315 (prosecution's misrepresentation as to witness availability). See also Davis, 36 F.3d at 1548 ("prosecution's use of misstatements and falsehoods" is clearly improper).
F. Taken as A Whole, The Prosecution's Improper Arguments Mandate A New Trial
A prosecution's improper arguments must be viewed cumulatively, and require a new trial if they caused "substantial prejudice," as determined by a three-part test: "The severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper statements." Floyd, 907 F.2d at 353-55 (2d Cir. 1990). See also Davis, 36 F.3d at 1545; Lesko, 925 F.2d at 1541 (3d Cir. 1991)(prosecution's closing comments "considered cumulatively"). [54] Here, the prejudicial comments were numerous and severe, framing the summation. Although defense counsel twice objected to the improper comments, the trial judge ignored the objections and permitted the prosecution to continue unimpeded. (Id. at 172-73.) The court released the jury without any curative instruction, and when Jamal's counsel again objected, the court still made no ruling. (Id. at 187-89.) See Floyd, 907 F.2d at 355-56 (instruction that arguments are not evidence did not cure improper comments).
CLAIM 15. JAMAL RECEIVED INEFFECTIVE ASSISTANCE FROM APPELLATE COUNSEL
Many of the issues raised in this appeal are based on evidence outside the original trial record and could not have been presented fully on direct appeal. To the extent that any issue could be deemed waived by the failure to raise it on direct appeal (and despite Pennsylvania's relaxed waiver rules in capital cases), Jamal is still entitled to relief because that failure was due to ineffective assistance of appellate counsel. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830 (1985)(defendant entitled to effective assistance on direct appeal). Jamal's appointed counsel on direct appeal was not available to testify at the PCRA hearing (Tr. 7/31/95 [under seal]; FOF ¶ 83), but her close associate who worked in researching and drafting the appeals briefs testified. Appellate counsel and her assistant never had any discussions regarding any of the issues raised here that were not raised on direct appeal, and to the best of his knowledge, she never considered raising the issues. (Id. at 218-28.) Moreover, while appellate counsel knew that the Pennsylvania Supreme Court reviews the sufficiency of the evidence in every capital case the direct appeal brief had only a two paragraph discussion of the evidence to guide the Pennsylvania Supreme Court's review, despite the numerous issues bearing on the evidence. (Id. at 267-68.) See Jamal, 555 A.2d at 848. [55]
CLAIM 16. THE RECORD REVEALS AN EGREGIOUS BATSON VIOLATION
The statistical evidence of race-motivation in the jury selection process presented in Jamal's Petition is stark and constitutionally compelling. Moreover, blunt admissions by a former Philadelphia prosecutor in the form of a training videotape leave no doubt that prosecutors generally, and the prosecutor in Jamal's case, were afraid of African-American jurors and sought to remove them. See generally Diggs v. Vaughn, 1991 U.S. Dist. LEXIS 3945 (E.D. Pa. 1991). Indeed, the record shows that tactics taught to young prosecutors and employed by novices and veterans alike were calculated to defeat Batson claims by convicted defendants. Cf. Aamdeo v. Zant, 486 U.S. 214 (1988). The practices engaged in by the prosecutor here violated the baseline standards of Batson v. Kentucky, 476 U.S. 79 (1986). See also Ford v. Norris, 67 F.3d 162 (8th Cir. 1995); Simmons v. Beyer, 44 F.3d 1166 (3d Cir.), cert. denied, 516 U.S. 905 (1995); Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) (prima facie case when 75% of prosecution challenges removed 75% of eligible blacks); United States v. Alvarado, 923 F.2d 253, 256 (2nd Cir. 1991) (57% of strikes against minorities shows prima facie case, although not all blacks were struck). [56]
CLAIM 17. THE TRIAL JUDGE TAMPERED WITH THE JURY BY REMOVING THE ONLY ONE SELECTED PERSONALLY BY JAMAL WITHOUT CONSULTING HIM OR GIVING HIM AN OPPORTUNITY TO BE HEARD
A black woman, Jennie Dawley, was the only juror selected while Jamal was conducting his own voir dire. (6/7/82 Tr. 187.) The court admitted he opposed seating this juror from "the beginning" because of her "attitude." (6/18/82 Tr. 40, 45-46.) Dawley had asked to go home to take her sick cat to the vet during evening hours. Rather than advise Jamal or his counsel of the juror request, the court summarily denied it. (Id. at 36-38.) Without interrupting court, Dawley left the hotel in the evening hours to take the sick cat to the vet, returning immediately afterward. Using this excuse, the court released her. (Id. at 47.) [57] The court's failure to notify the defense of Dawley's inquiry before responding, thereby bringing about the removal of a juror the court did not like, was clear error warranting a new trial. Cf. United States v. Rapp, 882 F.2d 957 (11th Cir. 1989), cert. denied, 493 U.S. 890 (1990); United States v. Taylor, 562 F.2d 1345 (2d Cir. 1977), cert. denied, 432 U.S. 909 (1978); United States v. McDuffie, 542 F.2d 236 (5th Cir. 1976). (See discussion in Claim 13, supra).
CLAIM 18. THE TRIAL COURT PERMITTED A PALPABLY BIASED JUROR TO SIT IN THE FACE OF A COMPELLING CAUSE CHALLENGE
Juror Edward Courchain had no business sitting on the jury. He admitted the media focus on the case affected his perceptions of Jamal's guilt (more likely guilty) and that he doubted he could eliminate his bias when it came time to hear and evaluate the evidence. The record amply demonstrated that a removal for cause was warranted. The trial court's refusal to grant defense counsel's cause challenge deprived Jamal of a fair and impartial jury. See Irvin v. Dowd, 366 U.S. 717 (1961); see also Swain v. Alabama, 380 U.S. 202 (1965); Aldridge v. United States, 283 U.S. 308 (1931); United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973).
CLAIM 19. THREE JURORS BEGAN SECRETLY DELIBERATING OVER THE CASE BEFORE THE CLOSE OF EVIDENCE
Jamal offered to prove that three white jurors formed a grouping which deliberated in a hotel room during trial, apart from the two black jurors. The court precluded this evidence. (FOF ¶ 48; 8/2/95 Tr. 185-90.) Jamal is prepared to present this evidence in this Court. The Third Circuit Court of Appeals has recently emphasized several important reasons why premature jury deliberations cannot be tolerated and warrant a new trial, including the fact that the prosecution puts on its evidence first. United States v. Resko, 3 F.3d 684, 689-90 (3d Cir. 1993) (citations omitted).
CLAIM 20. THE JURY POOL DID NOT REFLECT A FAIR CROSS-SECTION OF THE COMMUNITY
Jamal sought to prove that in 1982 Philadelphia jury pools "were drawn from the voter registration list and divided into five groups. . . . Within this system, at any given time, it was possible for jurors from particular wards to be over-represented. The composition of the jury venires varied, depending on the period during the year in which a case went to trial. Com. v. Rosado, No. 2467, opinion (1st Dist. 1993). Jamal subpoenaed the jury commissioner to establish this claim, but the court barred the testimony. (8/2/95 Tr. 247-51.) The PCRA court's conclusions misconstrue Jamal's point and are directed at a straw man -- a claim that jury selection based on voter registration lists is, as such, a violation of the right to a fair cross-section. (COL ¶¶ 149-55.) The cases cited by the PCRA court address whether the use of voter lists as such denies a fair cross-section. E.g., Com. v. Bell, 328 Pa. Super. 35, 476 A.2d 439, 446 (1984) (use of lists permissible unless it results in exclusion of a racial group from the jury venire). But Jamal asserts that the jury system rotated voter lists in a way that denied a fair cross-section of the community at any given time. Jamal is entitled to discovery and a hearing on this claim.
CLAIM 21. TRIAL COUNSEL'S FAILURE TO PRESENT A SINGLE MITIGATION WITNESS WAS AN UNPRECEDENTED AND ASTOUNDING LAPSE IN ADEQUATE LEGAL REPRESENTATION, GIVEN JAMAL'S EXTRAORDINARY BACKGROUND AND QUALITIES
The chief prosecutor in the PCRA proceeding in 1995, upon hearing the testimony of the mitigation witnesses, announced that the killing of P.O. Faulkner was not in keeping with Jamal's character. Such was the power and impact of these mitigation witnesses. Yet, the sentencing jury heard no mitigation witnesses. In fact, whereas the Commonwealth in 1995 bluntly acknowledged that the killing was out of character, the prosecutor in 1982 was single-minded in his attempt to characterize Jamal as a dangerous left-wing radical bent on destruction and murder. The contrast could not be more stunning.
"The special importance of the capital sentencing proceeding gives rise to a duty on the part of defense counsel to be prepared for that crucial phase of trial." Stanley v. Zant, 697 F.2d 955, 963 (11th Cir. 1983). It is entirely unacceptable for counsel to "treat the sentencing phase as nothing more than a mere postscript to the trial." Kubat v. Thieret, 867 F.2d 351 (7th Cir), cert. denied, 493 U.S. 874 (1989). "It is not possible to provide a reasonable justification for appearing in front of a death penalty jury without thorough preparation." Com. v. Perry, 644 A.2d 705, 709 (Pa. 1994).
The record here is unequivocal and indisputable: defense counsel prepared not at all for the penalty phase -- even though he had an impressive wealth of mitigation information and witnesses available to him. Besides the sheer scope and impact of the available witnesses and information -- and the compelling portrait they would have drawn of a talented journalist, community leader, and loving family man -- the need for such testimony was accentuated by the circumstances of the case itself. The jury observed first-hand Jamal's struggles to protest the unfair proceeding -- a distorted picture of a man trapped in a struggle with a hostile court. Then, Jamal was cross-examined concerning his teenage membership in the Black Panther Party. The prosecutor's closing argument exploited these facts by characterizing Jamal's courtroom behavior and past views as symptomatic of a supposed "vicious" anti-authoritarian outlook. That inflammatory portrait was so totally false as to be unconscionable. Had trial counsel performed as constitutionally required, the prosecutor would not likely have dared propagate such utter nonsense. But because of defense counsel's complete abdication in the penalty phase, the prosecutor's false picture went unchallenged, resulting in a death sentence.
Defense counsel's testimony at the PCRA hearing was unequivocal and unrefuted on this point: he simply "hadn't done anything to prepare a penalty or a mitigation-phase hearing." (7/28/95 Tr. 47; see generally Id. at 41-47.) He never even talked with Jamal concerning the penalty phase (other than a brief meeting with him in the lock-up on the morning that the penalty phase was to begin), and never considered calling any witnesses at the penalty phase, much less interviewed potential witnesses to see what they would provide the jury. (Id. at 41, 44) The PCRA court wholly ignored this testimony and concluded, without a supporting citation, that "it was the defendant's decision not to call" mitigating witnesses. (FOF ¶ 89.) [58]
Defense counsel explained that stringent time constraints intensified the handicap he suffered as a result of not preparing earlier. (7/27/95 Tr. 45) Having endured two six-day weeks of trial, the guilt phase ended at the end of the day on Friday, July 2nd, a Friday. (Id.) Rather than provide counsel the respite of a weekend to collect his thoughts and prepare a strategy for the penalty phase, the court forced defense counsel to proceed the next morning to attempt to save Jamal's life, and defense counsel did not even request a continuance. See Blake v. Kemp, 758 F.2d 523 (11th Cir.), cert. denied, 474 U.S. 998 (1985)(counsel failed to prepare for penalty phase before or during guilt phase, and then could not obtain continuance of penalty phase after trial ended in conviction). Defense counsel's performance at the penalty phase was constitutionally inexcusable, and -- as the PCRA testimony of available mitigation witnesses amply shows -- the resulting prejudice was monumental.
Jamal presented six "mitigation" witnesses at the PCRA hearing as exemplars of what the sentencing jury would have heard at a competently conducted penalty phase trial. These witnesses included a veteran Pennsylvania State representative, two professional journalism colleagues, his high school teacher, his sister, and a long-time family friend and neighbor. These witnesses were available and willing to testify at Jamal's original penalty phase trial -- a fact that was never contested by the Commonwealth. Faced with the vivid and compelling portrait these witnesses provided, the Commonwealth was compelled to recognize the "immense talents of Mr. Jamal," his "obviously talented journalistic voice, and his activism." (7/26/95 Tr. 98-99). Indeed, the lead prosecutor at the PCRA hearing admitted that the killing of Officer Faulkner could not be squared with Jamal's true character: "From all the descriptions of everybody that has come here -- and they all are good people from what I can see, I believe -- I don't think [the shooting of Officer Faulkner] is characteristic [of Jamal]." (Id. at 191)
The failure to call a single mitigation witness, in light of the evidence that was available, is constitutionally intolerable. Parker v. Dugger, 499 U.S. 308 (1991)(death sentence imposed in the face of existing mitigation evidence violates Eighth Amendment). The law must ensure, and human decency demands, that the sentencing body receives all the information that is essential to making a life or death determination. The adequate presentation of all necessary information to a sentencing jury depends upon the adequacy of trial counsel. See Strickland v. Washington, 466 U.S. 668 (1984); United States v. Ash, 413 U.S. 300 (1973). In preparing for the penalty phase of a capital case, the duty to investigate "takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death." Strickland, 466 U.S. at 706 (Brennan, J., concurring). The federal courts have consistently held that a trial counsel's failure to put on available mitigating evidence constitutes reversible sentencing error. See, e.g., Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), cert. denied, 118 S.Ct. 1526 (1998)(counsel "did not present any mitigating evidence because he did not think it would do any good" - "abdication of advocacy"); Hall v. Washington, 106 F.3d 742 (7th Cir.), cert. denied, 118 S.Ct. 264 (1997)(failure to consult with defendant and failure to pres