MEMORANDUM OF LAW IN SUPPORT OF PETITION
FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2254

Table of Contents

PRELIMINARY STATEMENT p.1

THE STATUTORY FRAMEWORK OF THE AEDPA p.3

  1. The Standard of Review of Petitioner's Twenty-Nine Constitutional Claims p.3
  2. The Issue Of Deference To The State Court Fact Finding p.5
  3. Petitioner's Motion To Set Aside The State Court's Findings Of Fact p.8

EVIDENTIARY HEARINGS p.9

  1. Claims Governed By Subsection (d)(1) And For Which An Evidentiary Hearing Is Unnecessary p.9
  2. Claims For Which An Evidentiary Hearing Is Mandatory p.9

STATEMENT OF FACTS p.13

  1. The Climate Of The Proceedings p.13
  2. Jamal's Background p.16
  3. The Traffic Stop p.17
  4. Jamal Appears At The Scene And Is Shot p.21
  5. The Shooting Of Officer Faulkner p.24
  6. Someone Flees The Scene In The Direction Of A Nearby Alleyway p.29
  7. At The Hospital p.32

LEGAL AUTHORITY IN SUPPORT OF PETITIONER'S CLAIMS p.36

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 p.36

CLAIM 2. THE STATE'S SUPPRESSION OF EVIDENCE THAT THE TRUE SHOOTER FLED TOWARDS A NEARBY ALLEYWAY VIOLATES THE BRADY DOCTRINE p.39

CLAIM 3. THE USE OF A FABRICATED CONFESSION TO SECURE A VERDICT OF GUILT AND DEATH CORRUPTED THE TRIAL PROCESS p.41

CLAIM 4. THE STATE'S DESTRUCTION AND/OR SUPPRESSION OF PHYSICAL EVIDENCE DEPRIVED JAMAL OF DUE PROCESS p.43

CLAIM 5. THE STATE'S FAILURE TO DISCLOSE POLICE SURVEILLANCE FILES DEMONSTRATING LONGSTANDING POLICE BIAS AGAINST JAMAL VIOLATED THE PROSECUTION'S BRADY OBLIGATIONS p.43

CLAIM 6. DEFENSE COUNSEL'S PREJUDICIALLY DEFICIENT GUILT PHASE PERFORMANCE VIOLATES THE STANDARDS SET FORTH IN STRICKLAND V. WASHINGTON p.43

CLAIM 7. THE COURT-CREATED CONFLICT OF INTEREST BETWEEN COUNSEL AND JAMAL CONSTITUTES A PER SE VIOLATION OF THE SIXTH AMENDMENT p.46

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 p.49

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 p.49

CLAIM 10. THE TRIAL COURT PREVENTED JAMAL FROM DEVELOPING HIS DEFENSE THROUGH DIRECT AND CROSS-EXAMINATION p.51

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 p.52

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 p.54

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 p.57

CLAIM 14. THE JURY WAS POISONED WITH A VENOMOUS GUILT-PHASE CLOSING ARGUMENT THAT WENT BEYOND THE BOUNDS OF FAIR PROSECUTORIAL ADVOCACY p.61

  1. 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" p.61
  2. The Prosecutor Denigrated Jamal's Exercise of Constitutional Rights p.62
  3. 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 p.64
  4. The Prosecution Improperly Vouched for Two Key Witnesses p.65
  5. The Prosecution Unfairly Took Advantage Of The Court's Rulings Precluding
    Jamal From Presenting A Defense p.66
  6. Taken as A Whole, The Prosecution's Improper Arguments
    Mandate A New Trial p.67

CLAIM 15. JAMAL RECEIVED INEFFECTIVE ASSISTANCE FROM APPELLATE COUNSEL p.68

CLAIM 16. THE RECORD REVEALS AN EGREGIOUS BATSON VIOLATION p.69

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 p.70

CLAIM 18. THE TRIAL COURT PERMITTED A PALPABLY BIASED JUROR TO SIT IN THE FACE OF A COMPELLING CAUSE CHALLENGE p.70

CLAIM 19. THREE JURORS BEGAN SECRETLY DELIBERATING OVER THE CASE BEFORE THE CLOSE OF EVIDENCE p.71

CLAIM 20. THE JURY POOL DID NOT REFLECT A FAIR CROSS-SECTION OF THE COMMUNITY p.71

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 p.72

CLAIM 22. THE PROSECUTOR VIOLATED JAMAL'S FIRST AMENDMENT RIGHTS BY USING HIS TEEN-AGE AFFILIATION WITH THE BLACK PANTHER PARTY, AND STATEMENTS BY JAMAL IN AN INTERVIEW WHEN HE WAS FIFTEEN YEARS OLD, DURING THE PENALTY PHASE p.81

CLAIM 23. THE PROSECUTOR'S SUMMATION IN THE SENTENCING PHASE DIMINISHED THE JURY'S RESPONSIBILITY IN DETERMINING WHETHER DEATH WAS APPROPRIATE, BURDENED JAMAL'S RIGHT TO SILENCE, AND EXPLOITED JAMAL'S DIFFICULTIES WITH THE COURT AND HIS ATTORNEY OVER HIS PRO SE STATUS p.84

  1. The Prosecutor's Summation Diminished The Jury's Importance By Indicating That Jamal Would Have "Appeal After Appeal," And He Advocated The View That The Sentencing Decision Was A Mere Mechanical Process And Not One Involving Discretion p.86
  2. The Prosecutor's Summation Impermissibly Conveyed The Impression That The Death Penalty Was Warranted Based Upon The Experience Of The Prosecutor p.88
  3. The Prosecution Tarnished Jamal's Character Based Upon His Decision Not To Testify About The Incident p.89
  4. D. The Prosecution Exploited Jamal's Persistent Difficulties With The Court And His Attorney To Portray Him As Both Ungrateful Of The Rights He Was Accorded As A Defendant And Antiauthoritarian p.90

CLAIM 24. THE STATE'S WITHHOLDING OF LAW ENFORCEMENT SURVEILLANCE RECORDS DEPRIVED JAMAL OF VALUABLE MITIGATION EVIDENCE p.90

CLAIM 25. THE VERDICT FORM WOULD HAVE LED JURORS TO BELIEVE UNANIMITY WAS REQUIRED TO CONSIDER A MITIGATING CIRCUMSTANCE p.91

CLAIM 26. THE JURY DID NOT KNOW THAT A SENTENCE OF LIFE CARRIED WITH IT NO POSSIBILITY OF PAROLE, VIOLATING JAMAL'S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS p.93

CLAIM 27. JAMAL'S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT'S BAR AGAINST CRUEL AND UNUSUAL PUNISHMENT p.95

CLAIM 28. RACE PLAYED AN IMPERMISSIBLE ROLE IN JAMAL'S DEATH SENTENCE p.95

CLAIM 29. THE STATE POST-CONVICTION PROCESS WAS SO WARPED WITH BIAS AND PREJUDICE THAT THE UNDERLYING FINDINGS OF FACT AND CONCLUSIONS OF LAW DESERVE NO LEGAL DEFERENCE p.96

CONCLUSION p.97

[posted 12/8/99]

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