UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
MUMIA ABU-JAMAL,Case No. 02-9001
Cross-Appellant,
-vs-
MARTIN HORN, Director, Pennsylvania Department of Corrections;
CONNOR BLAINE, Superintendent, SCI Greene;DISTRICT ATTORNEY OF PHILADELPHIA COUNTY;
ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA,
Cross-Appellees.
CROSS-APPELLANT’S MOTION FOR CERTIFICATION OF ADDITIONAL ISSUES FOR APPEAL. [LOCAL APPELLATE RULE 22.1(b)]
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NICHOLAS R.D. BROWN, ESQ.
Barrister-at-Law
4 New Square, Lincoln's Inn
London WC2A 3RJ, United Kingdom
011-44-207-822-2000MARLENE KAMISH, ESQ.
Attorney-at-Law
P.O. Box 80376
Chicago, IL 60608
(312) 455-0766ELIOT LEE GROSSMAN, ESQ.
Law Office of Eliot Lee Grossman
La Rotunda Building
248 East Main Street, Suite 100
Alhambra, CA 91801
(626) 943-1945Attorneys for Cross-Appellant Mumia Abu-Jamal
J. MICHAEL FARRELL, ESQ.
Attorney-at-Law
718 Arch Street, Suite 402 South
Philadelphia, PA 19106
(215) 925-1105
Local Counsel
COMES NOW Cross-Appellant Mumia Abu-Jamal and, pursuant to Local Appellate Rule 22.1(b), hereby moves the Court for additional certification of issues for appeal and, pursuant to Federal Rule of Appellate Procedure 27(d)(2), requests relief from the page limitations for this motion on grounds that the legal issues briefed herein are of such complexity as to be inexplicable within said limits, and in support thereof alleges and says as follows:
INTRODUCTION
Cross-Appellant Mumia Abu-Jamal is innocent and has the evidence to prove it. Arnold Beverly, the man who actually did commit the crime for which Mr. Jamal was convicted and sentenced to death, has come forward and confessed that he, not Mumia Abu-Jamal, shot and killed Police Officer Daniel Faulkner on December 9, 1981. Mr. Beverly’s confession is corroborated by a lie detector test administered by eminent polygraph expert Dr. Charles R. Honts and a mass of additional evidence, including both new evidence and even the prosecution’s evidence from Mr. Jamal’s trial.
Arnold Beverly has disclosed that he was hired by corrupt elements in the Philadelphia Police Department, working hand-in-hand with organized crime, to murder Officer Faulkner because the officer was an obstacle to the notorious pay-offs racket they were running in center city Philadelphia in the 1980's. The rampant and pervasive corruption endemic to the Philadelphia Police Department in that period is documented in the affidavit of ex-FBI informer Donald Hersing, whose testimony in the federal prosecutions of corrupt police brought down key players among the 30 officers convicted, including the former captain of the downtown division where Officer Faulkner was stationed. The day after Mr. Jamal’s trial concluded, the ranking officer at the crime scene investigation in the Jamal case resigned from the police force after pleading guilty to failing to pay taxes on thousands of dollars in bribes and pay-offs. It is noteworthy, as well, that the head of homicide was an unindicted co-conspirator in the federal corruption prosecutions. In response to Arnold Beverly’s declaration and this mass of corroborating evidence, the District Attorney presented not one item of evidence to the District Court to refute Mr. Beverly or impeach his credibility. The evidence that corrupt police officers were themselves co-conspirators in the murder of one of their fellows provides a ready explanation for the ease with which the frame-up of Mr. Jamal was effectuated. A new witness, Yvette Williams, has now come forward with direct evidence that not only did the star prosecution witness at trial, street prostitute Cynthia White, lie on the witness stand when she claimed to have seen Mr. Jamal shoot Officer Faulkner, but that White was forced to lie by the police. Yvette Williams’ sworn statement is attached hereto as Appendix “A” and recounts that Ms. Williams was in jail with Ms. White in December of 1981, after the shooting of Officer Faulkner, and Cynthia White told Yvette Williams that although she was in the area when the officer was shot, she did not see the shooting, but was forced by the police to give false testimony against Mr. Jamal due to threats to consolidate all of her own open cases and send her away to prison for a long period of time. White also told Williams that she had a drug habit and was high on drugs at the time of the shooting.
White confessed to Williams that she was terrified that the police might kill her if she did not comply and was also frightened that her pimp would beat her up or kill her when she got out of jail because of all the money he was losing while she was off the street. Williams states that White received money and favors in jail from the police, including contraband food and cigarettes as well as syringes and “white powder” in exchange for her testimony.
The only other alleged “eyewitness” to the shooting of Officer Faulkner, cabdriver and convicted felon Robert Chobert, recanted his trial testimony to private investigator George Michael Newman in 1995, and admitted that he had not seen the shooting, according to Newman’s declaration, twice submitted to the District Court but stricken from the record.
Both White and Chobert were eminently vulnerable to police pressure to fabricate their testimony and both altered their witness statements in ways favorable to the prosecution each time they were interviewed. White was obviously subject to police intimidation because of her profession and her many open cases. Chobert was an arsonist on felony probation for firebombing a school and was in daily violation of probation for driving his taxicab on a suspended license; he faced over 30 years in prison if his probation were revoked.
William Cook, who was stopped by Officer Faulkner while driving in the area of 13th and Locust, resulting in the incident in which the officer was shot, provided a declaration to Cross-Appellant’s prior counsel, which they suppressed, in which he revealed that there was a passenger in his car that night, Kenneth Freeman, and that some time afterwards, Freeman confessed to Cook that he, Freeman, had been part of a plot to kill Officer Faulkner, that he had been armed that night and participated in the shooting. The presence of a passenger in the Cook vehicle is corroborated by Cynthia White’s testimony at Cook’s trial (quoted in the Proposed Amended Habeas Petition, Claim 34) although White perjured herself at Mr. Jamal’s trial when she concealed the presence of the passenger and stated that no one other than Jamal, Cook, and Officer Faulkner were present at the scene. (Id.)
Although this evidence, and more, including Mr. Jamal’s own declaration that he did not shoot Officer Faulkner, but was himself shot down as he approached the scene, was for the most part admitted into the record in the District Court (with the exception of Ms. Williams’ declaration as she did not come forward until after the District Court issued its decision), the Court declined to review the evidence, evaluate its impact on the prosecution’s case at trial, or consider how that evidence provides additional support for various claims in the original habeas petition which expose interrelated aspects of a police frame-up of an innocent man. Rather, the District Court blandly opined that a jury could ignore that evidence and still choose to believe the (fabricated) testimony of the prosecution’s witnesses. However, no reasonable jury after considering that evidence would find Mr. Jamal guilty beyond a reasonable doubt; moreover, the totality of both the new evidence and that presented at trial proves that it is more likely than not that Mr. Jamal is innocent, thus satisfying the stringent test proposed by Justice Blackmun for a free-standing claim of actual innocence. See Herrera v Collins, 506 US 390, 442–444 (1993) Blackmun, J., dissenting). Despite the overwhelming proof of Mr. Jamal’s innocence, the District Court denied on the merits his motion for leave to file a redrafted and amended habeas petition setting forth a “free-standing” actual innocence claim as well as additional claims of constitutional error in the underlying post-conviction proceedings, direct appeal, and trial.
The District Court granted a Certificate of Appealability (“COA”) in this case with regard to only one issue, denial of the Sixteenth Claim for Relief in the Habeas Petition (the Batson claim). The Batson claim was denied on the principal basis that Petitioner, or rather his prior Chief Counsel Leonard Weinglass and prior Chief Legal Strategist Daniel Williams, had procedurally defaulted the evidence which proves up the claim. The issues which this Court will inevitably have to resolve in adjudicating the Batson claim—including whether Cross-Appellant can establish the grounds for relief from that alleged default, either by proving his “actual innocence” under the Schlup “gateway” standard or by showing “cause and prejudice” based upon myriad conflicts of interest and “constructive denial of counsel” on the part of his former counsel—are inextricably intertwined with the first issue upon which additional certification for appeal is requested, viz. the denial of Cross-Appellant’s motion for leave to file a redrafted and amended habeas petition. Adjudicating that issue will necessarily require a detailed review of the substantive merits of the “free-standing” actual innocence claim pled in Claim 31 of the proposed amended petition, as well as determination of the legal issue of whether “constructive denial of counsel” may provide relief from various procedural bars noted by the District Court in denying leave to amend. Since a favorable decision for Cross-Appellant on these issues in the context of the Batson claim would establish, as well, a basis for review on the merits of the District Court’s denial of leave to file the amended habeas petition, it is respectfully submitted that it is in the interests of justice to grant additional certification of that issue solely for that reason, although additional reasons for certification are also set forth below. Cross-Appellant also requests certification for appeal of several other claims for relief in the original habeas petition which implicate various violations of his right to a fair trial and/or fair post-conviction proceedings.
I. THE CERTIFICATE OF APPEALABILITY SHOULD BE EXPANDED TO CERTIFY FOR REVIEW THE DISTRICT COURT’S DENIAL OF CROSS-APPELLANT’S MOTION FOR LEAVE TO FILE A REDRAFTED AND AMENDED HABEAS PETITION; THE STRIKING OF EVIDENCE FROM THE RECORD AND DENIAL OF LEAVE TO SUPPLEMENT THE RECORD; AND THE REFUSAL TO AUTHORIZE THE DEPOSITION OF ARNOLD BEVERLY OR TO RECONSIDER THE SAME.
A. WHEN THE DISTRICT COURT DENIED LEAVE TO AMEND CLAIMS 1–29 IT ABUSED ITS DISCRETION BY MISAPPLYING DUFUS AND THOMAS, AND IMPOSING A RESTRICTION ON AMENDING HABEAS PETITIONS WHICH THE AEDPA EXPLICITLY LIMITS TO “OPT-IN” STATES.
In United States v Dufus, 174 F3d 333,336 (3rd Cir 1999), this Court suggested in dicta and, in United States v Thomas, 221 F3d 430,436 (3rd Cir 2000), explicitly held that the “relation back” provisions of Federal Rule of Civil Procedure 15(c)(2) apply to federal habeas proceedings. Thus, a habeas petition that was timely filed may be amended after expiration of the AEDPA’s one-year statute of limitations, as may a pleading in any other civil action after the running of the statute of limitations, when “the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Thomas, 221 F3d at 435, n. 3, quoting FRCP 15(c)(2).
In Dufus the Court refused to permit amendment of a habeas claim for ineffective representation by counsel to add a completely factually distinct claim what was not related in any way to the other ineffectiveness claims pled in the original petition. In Thomas the Court noted that “while it would frustrate the intent of Congress [in enacting the AEDPA] to allow Dufus to amend his petition by adding a ‘completely new’ ground for relief after the one-year period of limitations had run, ‘certainly the court could have permitted an amendment to clarify a claim initially made.’” 221 F3d at 435.
In Thomas the Court permitted an amendment to set forth the factual allegations necessary to support and properly plead claims that had been set forth in conclusory terms in the original habeas petition. The Thomas Court specifically left open the question of whether an amendment to set forth a new claim arising out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading should be permitted after the running of the statute of limitations (“Because he has not declared an intention to raise a new claim, we need not reach the issue of whether a new claim would be proscribed if that claim ‘arose out of the conduct, transaction or occurrence set forth ... in the original pleading.’”) 221 F3d at 436. However, the Thomas Court appeared to be disposed to allowing such an amendment inasmuch as it noted that “at least two other circuits have applied Rule 15(c)(2)’s ‘conduct, transaction, or occurrence’ test to cases in which Sec. 2255 petitioners sought to add new claims to their petitions after the expiration of the statute of limitations.” Id. And the Court advanced no reasons why such should not be the law.
In the case of Mr. Jamal, however, the District Court misapplied Dufus and Thomas in denying his motion for leave to file an amended habeas petition. With regard to Claims 1–29, although these are the same claims as in the original petition, and the additions and deletions thereto were clearly within the ambit of “clarifying or amplifying” the District Court denied leave to amend on the peculiar ground that these pleading changes added either “too little” or “too much” to the document.
While strikingly similar to the “three little bears” test for edible porridge (“this bowl is too hot, this bowl is too cold, but this bowl is just right!”), the District Court’s methodology has no resemblance to the test set forth in Dufus or Thomas. “Amplifying” clearly means increasing or making larger. There is no limitation on how much amplifying is proper in either Dufus or Thomas. Indeed, it is difficult to imagine how one could ever amplify a petition more than had been done in Thomas since the original petition in that case had set forth almost no facts at all.
While the District Court inexplicably points to this as a point to distinguish Thomas from this case, because here the original petition did plead facts, such an approach entirely ignores the plain language of FRCP 15 which permits amendments which arise of the same “conduct, transaction or occurrence.” Since Thomas specifically holds that this rule should be applied to “clarifying or amplifying” a pleading, it must apply equally to putting flesh on the bones of a skeleton pleading and fattening up a more slender but still fleshy one. Moreover, in the specific case of Mr. Jamal, the original pleading was drafted by attorneys infected with myriad conflicts of interest which deformed the product of their labors regardless of whether it turned out thin or fat. There is simply no justification to deny amendment that is clearly within the parameters of the “clarifying or amplifying” criterion. Finally, “adding too little” to the pleading is certainly no ground to deny an amendment. The District Court should have permitted the amendment and then ruled on the petition as amended. If the amendment truly added “too little” it would either be superfluous to a winning claim, so there would be no harm in permitting the amendment, or inadequate to save a losing claim, and just as harmless.
In fact, the amendments to Claims 5, 7–12, 14, 15, 17–20, 22–24 and 26–28 are substantial. They seek to rectify the earlier malfeasance/non-feasance of conflicted prior counsel (which, in relation to Claims 32–39, the District Court accepted that it had to assume in the absence of an evidentiary hearing to resolve the issue) by putting those claims on their proper footing and providing full factual substantiation. The District Court therefore erred in the exercise of its discretion in denying these amendments. It did not adopt the required liberal approach towards amendments embodied in Fed. R. Civ. P. 15(a).
Moreover, the District Court failed to make to make any distinction between the different categories of amendments in Claims 1–29. The first category consists of amendments to set forth where relevant evidence from the original trial and original PCRA record. The second category sets out the fresh evidence and its impact on the existing claims. The third corrects errors in the legal analysis in the original petition.
The first category merely serves to provide factual clarification and amplification of the existing claims in the unamended petition and, by comprehensively pleading the factual substantiation of the existing claims in the petition in the record of the original trial and original PCRA proceedings, to rectify the earlier malfeasance/non-feasance of conflicted prior counsel. These amendments do not advance new claims. They do not advance new theories of relief.
The second category of amendments is based on the fresh evidence. They do advance a positive defense case in respect of what actually happened on 12/9/81. This is encapsulated in Claim 31, the claim for actual innocence. However, in Claims 1–29, these amendments do not advance new claims. Nor do they advance new theories of relief. The theories of relief remain the same: they are the existing claims, namely that the prosecution suborned perjury by manipulating its two alleged eyewitnesses to falsely identify Cross Appellant Jamal as the person who shot and killed Police Officer Faulkner (Claim1); suppressed evidence that the true shooter fled the scene after the shooting (Claim 2); fabricated a confession (Claim 3); and suppressed physical evidence (Claim 4).
If Arnold Beverly is telling the truth, which he is, then the trial testimony of both Chobert and White must necessarily be false. Arnold Beverly’s confession provides the motive for why the police forced these witnesses to fabricate their testimony (Claim 1). Since Arnold Beverly is himself the “fleeing shooter”, his testimony and the corroborating evidence prove up Claim 2. If Arnold Beverly is the real murderer and Cross Appellant Jamal is completely innocent, the only inference to draw is that the alleged hospital confession was fabricated (Claim 3). Arnold Beverly’s confession and the rest of the fresh evidence, including Linn Washington’s Declaration, also prove that physical evidence must have been suppressed, destroyed or fabricated (Claim 4).
The third category also simply serves to clarify and amplify the legal arguments upon which the claims in the existing petition are based and thereby, again, to rectify the earlier misfeasance/non-feasance of conflicted prior counsel by putting the existing claims on their proper footing, so that they can be properly be dealt with on their merits.
In its analysis, the District Court has misconstrued “new theories of relief ” Thomas 221 F 3d. at 436 (emphasis added) with “new theories”. If the District Court’s construction were correct, Section 2254(e)(ii)(A)(ii) of AEDPA would be otiose in every instance when the factual predicate for the claim could not have been previously discovered through the exercise of due diligence more than one year after a judgment of conviction becomes final. In its initial analysis, the District Court concentrates on the solely on the primary limitation period under the AEDPA. He fails to take into account that there are secondary limitation periods in Sections 2244(d)(1) and 2254(e)(ii)(A). When, on Page 11 of the Memorandum and Order of 12/18/01, Docket #136, the District Court refers to Section 2254(e)(ii)(a)(ii), but misconstrues its import and effect. Section 2254(e)(ii)(a)(ii) does not refer to “new” claims: rather it refers to “claims” and applies to both existing and wholly new claims. In Duffus, the new claim which the appellant sought to add by amendment was a substantive new claim of ineffectiveness, albeit that it fell in to the overall category of ineffectiveness. They were like apples and oranges, even if they fell into the general category of fruit. The facts of this case are entirely different. They are akin to Thomas. Because of prior counsel’s conflict of interest, the original habeas petition is comparable to the petitioner’s initial pleading in Thomas, which the District Court characterizes as “a skeletal series of legal claims, devoid of factual substantiation.” The amendments provide the meat which was missing from the original habeas petition. They do not raise new claims or theories of relief. The claims and theories of relief remain precisely the same.
The original pleadings were not rich. The amendments demonstrate the extent to which the original petition was infected by the misfeasance/non-feasance of conflicted prior counsel. The amendments are necessarily voluminous because of the nature and complexity of the underlying case.
The amendments to Claim 29 of the Petition (as opposed to the Supplement to Claim 29) merely clarify and amplify the original Claim 29 by identifying the parts of the original trial record and original PCRA record which truly substantiate the original claim. The specific allegations of racial animus merely amplify the allegations of personal distaste for Cross Appellant Jamal in the original Claim 29. In any event, the District Court erroneously concluded that the logical consequence of dismissing the amendments to Claim 29 was to dismiss the Supplement to Claim 29.
In denying leave to amend Claims 1–29 the District Court did not follow Dufus or Thomas. It added its own test requirements by claiming that somehow the additional facts pled into those claims also raised unspecified “new claims” or “new theories” which were supposedly verboten. But even if that were the case, which the District Court nowhere demonstrates, neither Dufus or Thomas prohibit such an amendment, rather that is precisely the issue which Thomas specifically leaves open, whether an amendment arising from the same conduct, transaction or occurrence, but raising a “new” claim relates back. Given that the issue is open in this Circuit, this issue should most certainly be certified for appeal.
This is particularly true because in enacting the AEDPA the Congress wrote explicit restrictions on amending habeas petitions into that law but for “opt-in” states only. In such states, the “liberal” rules for amendments that are codified in FRCP 15 do not apply. See 1 Liebman & Hertz, Federal Habeas Corpus Practice and Procedure (3rd ed. 1998) 666, Sec. 17.2. However, there are no statutory restrictions on amending habeas petitions in non-“opt-in” states. Thus, for the District Court to impose higher restrictions on amendment of a habeas petition than are set forth in FRCP 15 for any other pleading runs directly contrary to the intent of Congress in drawing the explicit statutory distinction between “opt-in” and non-“opt-in” states and undermines Congress’ policy of attempting to entice the states into providing better quality representation to capital defendants, and more resources for their representation, by offering to “opt-in” states the trade-off of more draconian procedural requirements for habeas petitions.
Finally, as will be noted below, the District Court assumed that Claims 32–39 were timely and thus not barred by the Statute of Limitations because the factual predicate underlying those claims were the conflicts of interest on the part of Mr. Jamal’s prior counsel which were undisclosed to him and could not have been ascertained as a matter of law until they were substituted out by prior counsel. The District Court accepted the legal argument with regard to the effect of such conflicts and ruled that since an evidentiary hearing would be necessary to determine whether the facts were such as to fit within that legal theory, and that would necessitate immersing the Court in an “evidentiary thicket,” it would just assume that such was the case.
However, the District Court should have made the same identical assumption with regard to Claims 1–29, since the necessity for amending them is precisely the same conflicts of interest on the part of prior counsel which caused them to misplead the habeas petition in the same manner as it caused them to suppress the evidence which proves Mr. Jamal’s innocence. If the District Court was unwilling to make that assumption for Claims 1–29 its only other logically consistent alternative was to plunge into the evidentiary thicket it sought to avoid with regard to Claims 32–39. Instead it did neither one nor the other but instead inappropriately applied a flawed “relation back” analysis when, in fact, Claims 1–29 are just as timely as Claims 32–39 and for precisely the same reason. The District Court’s different handling of these two sets of claims is without any justification.
B. THE DISTRICT COURT ERRED IN DENYING LEAVE TO AMEND
THE HABEAS PETITION TO ADD CLAIMS 32–39.As noted above, the District Court accepted Cross-Appellant’s legal argument that the factual predicate for these claims was the conflicts of interest on the part of prior counsel and that, as a consequence the claims were within the statute of limitations. The Court assumed the truth of the factual allegations rather than enter into the “evidentiary thicket” of investigating those facts. However, the Court then proceeded to deny the requested amendment to add these claims on the ground that the “constructive denial of counsel” doctrine is restricted to the Sixth Amendment and this jurisprudence may not be applied within a Fifth or Fourteenth Amendment “due process” context. Inasmuch as there is no case authority on point which supports this proposition, and there are serious public policy considerations at stake with regard to how and whether the Courts may act to protect individuals from outright betrayal and treachery by their counsel in post-conviction proceedings and/or federal habeas proceedings, this is clearly an issue which should be certified for review on appeal.
Insofar as Cross-Appellant has been able to discover there is no case—other than this one—in which a court has specifically held that the “constructive denial of counsel” doctrine does not apply outside the Sixth Amendment. It just happens to be the case that the doctrine has grown up in Sixth Amendment situations. But there is no logical or particular policy reason why this jurisprudence should not also apply in a Fifth or Fourteenth Amendment context. The District Court ruled that Cross-Appellant could not make out a Fourteenth Amendment claim because he supposedly could not show state action. However, the District Court dealt (and misdealt) only with one aspect of Cross-Appellant’s “state action” argument. Cross-Appellant cited several cases in which criminal defense attorneys have been held by the courts to be “state actors.” One of these, Georgia v McCollum, 505 US 42 (1992), in which Batson was applied to a defense attorney using peremptory challenges to remove persons from a jury because of their race, specifically found such conduct to be “state action” for Fourteenth Amendment purposes. The District Court attempted to distinguish this case on the basis that it was a product of “the unique character of peremptory challenges” (!?) as being “inexorably dependent” upon the “overt, significant participation of the government.” But what does that indigestible mouthful signify other than the fact that peremptory challenges are exercised within the context of a court proceeding, which is a state function. Similarly here, “constructive denial of counsel” is also “inexorably dependent” upon the “overt, significant participation of government” in providing a court proceeding in which one can be constructively denied counsel.
Moreover, and this is the point that the District Court misses, the adversary system is the foundation stone of our entire legal system. If the adversary system malfunctions to such an extent that the advocate for the defendant (or habeas petitioner, or state post-conviction petitioner) secretly betrays his or her role and defects to the opposing side to become, as in Rickman v Bell, 131 F3d 1150 (6th Cir 1997), a “second prosecutor,” then there cannot possibly be a fair hearing or any semblance of due process. A fair hearing, the essence of due process, depends on two basic factors, first, an impartial tribunal, and second, a properly functioning adversary system. If either is missing, the entire proceeding is worse than a sham, it is a kafkaesque nightmare. That is precisely what happened in this case. Because the court proceeding itself is “state action” the constructive denial of counsel within the context of that proceeding is cognizable under the Fourteenth Amendment.
This is an issue which merits appellate review most certainly and, therefore, it should be certified for appeal.
C. THE DISTRICT COURT ERRED IN DENYING LEAVE TO AMEND
TO ADD CLAIM 31 BASED ON ACTUAL INNOCENCE.In Herrera v Collins, 506 US 390 (1993), a majority of the Supreme Court assumed without deciding that execution of an innocent person would violate the Constitution and, thus, left open the possibility that a “free-standing” claim of actual innocence would state a proper claim for relief in federal habeas. A different majority of the justices would have so held. See Carriger v Stewart, 132 F3d 463, 476 (9th Cir. 1997)(en banc), citing Herrera, supra, and comparing 506 US at 417 with id. at 419 (O’Connor, J., joined by Kennedy, J., concurring) and id. at 430–437 (Blackmun, J., joined by JJ. Stevens and Souter, dissenting).
While the Herrera Court did not specify what showing would be necessary to prove up such a claim, Justice Blackmun suggested in his dissent a stringent standard under which one would have to go beyond demonstrating doubt about whether he was guilty and affirmatively prove that he is probably innocent. Herrera, 506 US at 442–444 (Blackmun, J., dissenting). In this case, Mumia Abu-Jamal can readily meet that burden, as is sketched out in the introduction to this motion and meticulously demonstrated in Appendix “B” hereto. The new evidence now available not only shatters the prosecution’s case as presented at trial, but provides an alternate scenario which is more consistent with the prosecution’s evidence than the prosecution’s own theory, as is fully argued and supported in Appendix “B”. Facts which are inexplicable under the prosecution theory are thoroughly explicable with the new defense scenario. For example, the prosecution cannot account for how 9 shots could have been fired at the scene by someone other than Officer Faulkner given that Mr. Jamal’s revolver could hold only 5 bullets. Additionally, numerous witnesses reported that the shooter wore a green army jacket, but no such garment was recovered at the scene and Mr. Jamal was wearing a red, white and black jacket. A number of witnesses reported that the killer came out of the parking lot across the street, but Mr. Jamal’s cab was not recovered from the parking lot but rather was found parked on 13th Street, north of Locust. Not one prosecution witness reported seeing Officer Faulkner shoot Mr. Jamal, and Jamal’s being shot by someone other than Faulkner, as originally reported by police at the scene, is wholly inconsistent with the prosecution scenario.
The District Court never even reviewed the extensive analysis of the evidence offered by Cross-Appellant in the document which is attached hereto as Appendix “B”. When Cross-Defendant’s new counsel took over his representation on May 4, 2001, they immediately filed with the District Court the confession of Arnold Beverly and the corroborating evidence they found in prior counsels’ files. They filed an emergency motion to depose Mr. Beverly in order to perpetuate his testimony and provide a modicum of protection for him from those who had hired him to kill Officer Faulkner and, logically, might endeavor to silence him. The District Court denied that motion. Counsel for Cross-Appellant had no opportunity at that time to undertake the minute analysis of the evidence necessary to show how his confession and the corroborating evidence not only destroyed the prosecution’s case but was more consistent with the prosecution’s own evidence than their theory. This was not the kind of task that could be performed overnight. Once Counsel were able to review the evidence and undertake that analysis they presented the District Court with a motion to reconsider its denial of the request to depose Arnold Beverly. An extract from that document is attached as Appendix “B”. In its decision denying that motion, the District Court explicitly refused to review the evidence, claiming that since it had already done so there was no reason to do so again. The District Court declined even to review the extensive analysis of the evidence provided by Counsel for Cross-Appellant. When the District Court denied the “actual innocence” claim on the merits, it did so without ever revisiting the evidence in the case. It relied on its previous perfunctory and superficial denial of the original request to depose Mr. Beverly. This has nothing in common with the full review of the record which the District Court is required to undertake in ruling on a habeas petition.
Finally, the District Court’s dismissal of the actual innocence claim was done on a basis which would make it impossible for anyone to ever prevail on an actual innocence claim regardless of what quantum or quality of proof they were able to obtain. The District Court ruled that since, in its opinion, a jury could still choose to believe the prosecution’s witnesses instead of the contrary evidence, Cross-Appellant could not meet his burden of proof. However, there are at least two things wrong with this approach. Firstly, the proper test is not whether a jury could still vote for guilt, but rather whether a reasonable jury would vote for guilt beyond a reasonable doubt. Secondly, the District Court’s ruling assumes that the prosecution’s witnesses would remain credible to the jury regardless of what evidence the defense would ever produce.
If for example the jury heard Arnold Beverly testify and decided that he was telling the truth, they would then necessarily have to conclude that the prosecution’s two witnesses who claimed to have seen Mr. Jamal shoot the police officer were lying. Moreover, given that we now have powerful impeachment evidence with regard to both White and Chobert, providing not only proof of their vulnerability to police pressure, but direct evidence that neither of them actually saw the shooting and both of them lied when they said that Mr. Jamal was the shooter, how could a reasonable jury choose to accept their testimony over that of Beverly, particularly when his testimony is corroborated not only by the new evidence but by numerous pieces of the trial evidence itself?
Certainly, without holding an evidentiary hearing to evaluate the credibility of Arnold Beverly and the other witnesses who have not previously testified, no court could possibly have a reasonable basis to rule as to what a jury would decide in this case today.
For the same reasons that the District Court was prepared to assume that Claims 32–39 were timely, the District Court was also bound to assume that Claim 31 was timely. Claim 31 also relates back to the original petition, because it “[arises] out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Thomas, 221 F3d at 435, n. 3, quoting FRCP 15(c)(2). Claim 1 is that the prosecution suborned perjury from the two alleged “eye-witnesses”. Claim 2 is that the real shooter fled. Claim 3 is that the prosecution fabricated a confession. Claim 4 is that the physical evidence was suppressed. This is all part and parcel of Cross Appellant Jamal’s claim of “actual innocence.” Arnold Beverly is the real shooter. He fled. Cynthia White and Robert Chobert succumbed to unlawful pressures and inducements and perjured themselves. The alleged hospital confession was obviously fabricated. The physical evidence was suppressed as a part of the frame up. In any event, the District Court accepted that the question of whether or not there is an “actual innocence” exception to the AEDPA’s limitation periods has never been conclusively accepted or rejected by the United States Supreme Court and acknowledged that at least one district court has found that the Suspension Clause contained in U.S. Const. Art. 1, Sec. 9, Cl. 2, as well as the Eighth Amendment’s prohibition against cruel and unusual punishment, mandate that an “actual innocence” exception to the AEDPA’s statute of limitations be carved. The District Court made no attempt to rule on this issue.
D. A COA SHOULD ISSUE WITH REGARD TO THE STRIKING OF EVIDENCE AND DENIAL OF LEAVE TO SUPPLEMENT THE RECORD
WITH EVIDENCE IN SUPPORT OF THE MOTION TO AMEND AND
THE ACTUAL INNOCENCE CLAIM.Despite the provisions in the habeas rules for supplementing the record, the District Court struck various pieces of evidence submitted in support of the motion to amend and the actual innocence claim. The declaration of Mr. Newman, in which he recounts the recantation of key prosecution witness Robert Chobert, his reporting of this to Leonard Weinglass, Weinglass’ failure to question Chobert on this at the PCRA hearing, and Weinglass’ misrepresenting to Newman at the courthouse that Newman’s testimony was unnecessary and he could leave because Weinglass had gotten everything he needed out of Chobert, is a devastating document with regard to proving up the conflicts of interest by Weinglass and their deleterious effects on his representation of Mr. Jamal, as well as punching a large hole in the prosecution’s case. Even more devastating on the conflicts issue is Newman’s recounting how Weinglass specifically told him not to investigate Kenneth Freeman’s involvement in the killing of Officer Faulkner because he, Weinglass was unwilling to run the personal to his own life and safety that such an investigation would entail. And Weinglass confided to Newman the story about the death threat he had received to deter him from going forward with any evidence that would point to Freeman’s involvement. This declaration should have been accepted into the record and it was an abuse of discretion to refuse to do so.
The forensic experts, Kirschner and Singer, should have had their declarations accepted in which they explained that there are a number of tests of the physical evidence that could be done now which simply were not available at the time of trial.
Arnold Howard’s affidavit about Freeman having his hands tested for gunpowder residue at the police station is certainly relevant and probative. The District Court struck this declaration but accepted for filing a previous declaration from the same witness detailing how Freeman was twice picked out of a line-up by Cynthia White shortly after the shooting.
The District Court struck from the record a stack of memos the thickness of the New York City phonebook from various members of Mr. Jamal’s prior “legal team” to all counsel minutely analyzing the evidence which supports Arnold Beverly’s confession. Noticeably lacking in this intact set of memos was any memo from Chief Counsel Weinglass or Chief Legal Strategist Williams disputing the veracity of Arnold Beverly’s testimony or expressing doubts as to his credibility. These documents provide additional evidence of the mendacity of Messrs. Weinglass and Williams and their deep-rooted and pervasive conflicts of interest, as well as corroborating Mr. Beverly’s confession.
E. A COA SHOULD ISSUE WITH REGARD TO THE DENIAL OF LEAVE TO DEPOSE ARNOLD BEVERLY AND REFUSAL TO RECONSIDER THE SAME.
Given the foregoing analysis of the evidence, there is clearly a strong basis to justify taking the deposition of Arnold Beverly. This is particularly so because he is the Cross-Appellant’s own witness and there will be no burden on the District Attorney or her clients from the taking of that deposition. To the contrary, it will give the opposing parties the opportunity to test his testimony through cross-examination. If Arnold Beverly is telling the truth, and he is, his life is clearly in danger. Counsel for Cross-Appellant have had to make whatever arrangements that they could to provide a modicum of protection to him while awaiting the day when he will hopefully be permitted to testify in open court. There will be no harm to anyone in taking his testimony, while every day that goes by without his deposition being taken puts him in continuing danger and puts Cross-Appellant in peril of losing his most important witness.
II. THE DENIAL OF CLAIMS 1–4 (BRADY) SHOULD BE CERTIFIED
FOR APPEAL.Claims 1–4 in the original habeas petition raise various aspects of the police frame-up of Cross-Appellant Jamal and the prosecution’s suppression of exculpatory evidence that it was their obligation to disclose under Brady v Maryland, 373 US 83 (1963) and its progeny. These claims allege that the prosecution suborned perjury by manipulating its two eyewitnesses to falsely identify Cross-Appellant Jamal as the person who shot and killed Police Officer Faulkner (Claim 1); suppressed evidence that the true shooter fled the scene after the shooting (Claim 2); fabricated a confession (Claim 3); and suppressed physical evidence (Claim 4).
The District Court’s denial of these claims rested to a significant degree upon its deference to the purported “fact-finding” in the state post-conviction proceedings by Judge Sabo. In deferring to Judge Sabo, the District Court ignored the uncontroverted evidence in the Declaration of Terri Maurer-Carter, Certified Court Reporter, Docket #110, that at the time of Cross-Appellant’s original jury trial presided over by Judge Sabo, she overheard the judge make the following statement specifically referring to Mr. Jamal: “Yeah, and I’m going to help ’em fry the nigger.” Obviously, any purported “fact-finding” by a judge who had made such a statement during the original trial was necessarily and irreparably flawed from its inception. Such a judge could not have provided a fair post-conviction hearing and should have recused himself from such proceedings (and the original trial) sua sponte for extrajudicial bias. Thus, the District Court erred in deferring to Judge Sabo’s “fact-frying.”
Moreover, the District Court denied these claims without giving any serious consideration to the impact on them of the new evidence filed by Cross-Appellant’s new attorneys on and after May 4, 2001.
Given private investigator Newman’s declaration which recounts Robert Chobert’s recantation of his trial testimony; Yvette Williams’ declaration as to Cynthia White’s admission that she was forced by the police to falsely identify Mr. Jamal as the shooter when she actually did not see who shot Officer Faulkner; and Arnold Beverly’s testimony which, if true (which it is), must necessarily mean that Chobert’s and White’s trial testimony was false; and the mass of corroborating evidence, including the evidence of White and Chobert’s particular vulnerability to police pressure, there is vastly more than enough evidence to prove up Claim 1 and mandate the setting of an evidentiary hearing.
Since Arnold Beverly is himself the “fleeing shooter,” his testimony and the corroborating evidence proves up Claim 2, that evidence the true shooter fled was suppressed by the prosecution. Claim 3, the fabrication by the prosecution of an alleged “confession” by Mr. Jamal when he was in the hospital, is circumstantially proven by the evidence that Mr. Beverly and not Mr. Jamal was the shooter.
Moreover, the prosecution’s story that numerous police officers who were present and allegedly heard this inflammatory “confession” in the hospital when Mr. Jamal is alleged to have yelled out, “I shot the motherfucker and I hope he dies,” never reported it to anyone until months afterwards, is simply preposterous and lacking in any shred of credibility. Moreover, two police officers who were directly responsible for guarding Mr. Jamal in the hospital, Officers Wakshul and Trombetta, both filed written reports soon afterwards in which they made no mention of any such confession and, to the contrary, noted that he did not say anything.
As to Claim 4, that physical evidence was suppressed, the declaration of LinnWashington, shows that the crime scene was suspiciously uncontrolled after the shooting. The declarations of Dr. Kirscer and Mr. Singer detail various kinds of testing of the physical evidence which are now available which did not exist at the time of the original trial and which should be employed to test the physical evidence, particularly because Judge Sabo, during the PCRA proceedings, ordered the court clerk to turn over the physical evidence to a police detective, thus creating ample opportunity for evidence tampering. See Proposed First Redrafted and Amended Habeas Petition, Claim 37.
Appendix “B” hereto is an 76-page extract from Cross-Appellant’s Motion for Reconsideration of the Denial of Authorization to Depose Arnold Beverly in which all of the evidence both old and new is minutely analyzed to demonstrate how the new evidence not only explodes the prosecution’s case against Mr. Jamal, but fits more consistently with the old evidence than does the prosecution’s theory of the case. That analysis cannot be repeated here because of space limitations, but it is included as an appendix so that it is conveniently available for this Court’s review as the inevitable conclusion which emerges from that analysis of the evidence in the record is that the case against Mr. Jamal necessarily had to have been fabricated.
The District Court refused to consider this analysis of the evidence in denying that motion to reconsider and there is no indication it paid any heed to it in denying these claims for relief. In so doing, the District Court also ignored the undisclosed conflicts of interest on the part of Mr. Jamal’s prior counsel and his claims that these conflicts of interest had caused them to misplead the original habeas petition, even though the District Court was prepared to assume, for the purposes of the statute of limitations, in relation to Claims 32–39, that these conflicts of interest existed. Accordingly, the District Court failed in its obligation to conduct an independent review of the entire record in adjudicating these claims.
III. THE DENIAL OF CLAIM ELEVEN (FARETTA) SHOULD BE CERTIFIED FOR APPEAL.
The Eleventh Claim for relief alleges that Cross-Appellant Jamal’s pro se rights under Faretta v California, 422 US 806 (1975), and McKaskle v Wiggins, 465 US 168 (1984), were violated when Judge Sabo took the voir dire out of his hands and presented him with the “Hobbesian choice” of letting the judge or his court-appointed back-up counsel conduct it. The District Court correctly identifies that portion of the holding in McKaskle which specifically enumerates the right “to participate in voir dire” as one of the core constitutional rights which the Sixth Amendment guarantees to defendants who choose to exercise their right to represent themselves. See McKaskle, supra, 465 US at 174, 177.
However, the District Court’s ruling that the right to participate in voir dire does not include the right to personally voir dire the potential jurors is not only transparently erroneous and bereft of any possible logic (how else could a pro se defendant “participate” in voir dire other than by himself or herself questioning the potential jurors, since it is precisely that which constitutes voir dire?), it is founded on what can only be described as an astonishing confusion by the District Court of voir dire of jurors with voir dire of a witness. Based upon this confusion, the District Court then reaches the even more bizarre conclusion that voir dire of jurors does not “transpire in front of the jury” although it is exceedingly difficult even to imagine how jurors could be subjected to voir dire questioning in their absence.
Because the voir dire of witnesses generally occurs with the jury outside of the courtroom, the District Court oddly concludes that the voir dire of jurors which must necessarily take place with them inside the courtroom somehow transpires “outside the presence of the jury.” The District Court is clearly confusing apples and artichokes. Moreover, and most importantly, in McKaskle the pro se defendant did personally question the potential jurors on voir dire. 465 US at 174, n. 5.
The District Court claims that keeping Mr. Jamal from doing the voir dire questioning of the jury did not interfere with his Sixth Amendment right to participate in voir dire because he allegedly controlled, in consultation with back-up counsel, the exercise of peremptory challenges. Not only is this speculative and unproven, it is clearly beside the point because in listing the specific rights which constitute the “core” of a defendant’s right to self-representation, including the right to “participate in voir dire,” the McKaskle Court stated: “A defendant’s right to self-representation plainly encompasses certain specific rights to have his voice heard.” 465 US at 174. The Court re-emphasized this element when it reiterated several pages later in its opinion that: “The specific rights to make his voice heard that Wiggins was plainly accorded ... form the core of a defendant’s right of self-representation.” Id. at 177. Obviously, if a pro se defendant is not permitted to personally question the jurors during voir dire, then there is a violation of his right to have his voice heard. It the judge or a court-appointed back-up attorney takes over the voir dire questioning of the jury then it is their voice—and not the voice of the defendant—which is heard. This must necessarily violate the pro se defendant’s right to present his own case.
The reasons stated by Judge Sabo for aborting Mr. Jamal’s right to question the jurors himself on the third day of jury voir dire were clearly pretextual and directly contrary to the case law. According to Judge Sabo, the voir dire questioning was “unnecessarily lengthy and often improper” and “many of the venirepersons were ‘visibly shaken and uncomfortable.’” However, during the two days that Mr. Jamal conducted the voir dire, he examined 23 potential jurors, successfully challenged two for cause, and defeated a prosecution challenge for cause. (6/7/82 Tr. 1–189, 6/8/82 Tr. 2.1–2.159) Back-up counsel noted on the record that at no time was Mr. Jamal "chastised or disciplined in any way for any obstruction" of the voir dire and counsel reminded Judge Sabo that, "The last case I had before you, it took us nine days to select a jury and it certainly didn't have as much publicity as this case." Counsel noted another trial where "it took five weeks to select a jury."
Moreover, as the Ninth Circuit notes in Peters v Gunn, 33 F3d 1190, 1192 (9th Cir. 1994), the Faretta criteria for a defendant to qualify for self-representation—that he or she be “literate, competent, and understanding” does not require that the defendant be competent at lawyering, but merely competent to stand trial. Thus, even if the voir dire were progressing more slowly than it would were the questioning in the hands of an attorney rather than a pro se defendant, that does not justify intruding on the defendant’s Faretta rights by taking the questioning out of his hands. Judge Sabo’s other reason for taking the voir dire away from Mr. Jamal was that allegedly some jurors felt uncomfortable being questioned by him. Even if this were true it would not justify violating his Faretta rights. It should be obvious that in a murder trial some jurors might feel uncomfortable just sitting in the same courtroom with the defendant. If juror discomfort were a primary constitutional concern, defendants would be routinely excluded from jury trials in murder cases. That would entirely nullify the specific listing of “core” rights in McKaskle which are guaranteed to a pro se defendant to protect his Sixth Amendment right “to have his voice heard.” Additionally, if some jurors did feel uncomfortable with the defendant, that itself would be valuable information for the defense, and what better way would there be to find that out than by the defendant himself questioning the jurors about it?
IV. THE DENIAL OF CLAIM 14 (CALDWELL/BECK) SHOULD BE CERTIFIED FOR APPEAL.
Claim 14 alleges that the prosecutor’s closing statement in the innocence/guilt phase of Cross-Appellant’s capital trial improperly shifted the burden of proof onto the defense, and diminished the jury’s sense of its own role and responsibility, when the prosecutor said:
“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.” (Quoted in District Court Opinion, p. 184.)
The District Court held that Caldwell v Mississippi, 472 US 320 (1985), was not applicable here because Caldwell was a penalty phase case whose holding rested on the Eighth Amendment. The District Court then went on to analyze the claim under Darden v Wainwright, 477 US 168 (1985), to determine whether the prosecutor’s remarks so infected the trial with unfairness that it violated due process, and ruled to the contrary.
The District Court erred in the manner in which it did this, however, because it ignored the fact that the same specific concerns articulated by the Caldwell Court with regard to the prosecutor’s remarks in that case apply equally well in this case: Namely, that informing the jury that a verdict against the defendant would not be “final” and would be subject to appeal, combined with lay peoples’ likely misunderstanding of the nature and scope of appellate review, would cause the jurors to take their own role less seriously as they would wrongly assume that an appeals court would review the record as if it were itself a jury and overturn the jury’s verdict if it reached a contrary conclusion as to what the verdict should have been. See Riley v Taylor, USDC, 3rd Cir., December 28, 2001, slip opinion at 45: “As was explained in Caldwell, jurors may not understand the limited nature of appellate review . . .”
When the prosecutor in the case of Mr. Jamal told the innocence/guilt phase jury that Jamal would have “appeal after appeal” and their decision would not be final because the appeals could result in a reversal or “whatever,” and contrasted this with the finality of their decision if they voted to acquit, in which situation neither the prosecutor, judge or anyone else could no anything about it, what he was implicitly telling the jury was to give the benefit of the doubt to the prosecution.
This was a cynical and insidious argument which essentially said that, if you have a reasonable doubt but also believe it is still possible that the defendant is, in fact, guilty, you should vote to convict, because, if you mistakenly acquit a guilty man there is no way to correct that mistake, but if you mistakenly convict an innocent one, he will have “appeal after appeal” for the courts to correct your mistake.
This argument played on the same lay misconception of the nature and scope of appellate review which was the linchpin of the Caldwell Court’s condemnation of such argument in the penalty phase of that defendant’s trial, because no appellate court will review the trial evidence as though it were itself the jury, and no appellate court will overturn a guilty verdict because it decides that it has a reasonable doubt as to the defendant’s guilt although the jury which convicted presumably had none. Moreover, it is a barefaced lie that Mr. Jamal would have “appeal after appeal” since Pennsylvania law guaranteed him only one appeal, as of right, to the state supreme court. The prosecution’s implication that there would be an infinite process of appeals and no day of reckoning was a knowing and intentional misrepresentation of the law.
By telling the jury to, in essence, give the prosecution, rather than the defense, the benefit of the doubt, the prosecutor was also telling the jury to ignore the presumption of innocence and vote to convict even if they did have a reasonable doubt as to whether the defendant was guilty. Rather than being diluted within the overall context of the prosecutor’s closing argument, as the District Court suggests, the negative effects of the prosecutor’s message to ignore the law and their own responsibility to reach a just verdict and, instead, give the prosecutor the benefit of the doubt and vote to convict, was exacerbated by his inflammatory call to recruit the jury to join the “war on the street” and, by voting guilty, avenge the “one act that the people of Philadelphia, all of them, all of you everywhere is outraged over.” The clear implication of the prosecutor’s argument was that the jury not only could do so with a clear conscience, but had a duty to do so, despite the law, since the prosecutor guaranteed them that the defendant would have “appeal after appeal” for the courts to correct any mistake they might make. Although the majority opinion in Darden v Wainwright, 477 US 168, 183, n.15 (1985) distinguished Caldwell on the facts and, for various reasons, declined to follow the suggestion in Justice Blackmun’s dissent, 477 US at 196, n. 3, that Caldwell should automatically be applied to the prosecutor’s closing argument in the innocence/guilty phase of Darden’s capital trial, the case upon which the dissent based its argument, Beck v. Alabama, 447 U.S. 625 (1980), remains good law. In Beck, 447 US at 637, the Supreme Court noted that enhancing the risk of an unwarranted conviction “cannot be tolerated in a case in which the defendant’s life is at stake” and held as follows:
“To insure that the death penalty is indeed imposed on the basis of ‘reason rather than caprice or emotion,’ we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination. [cite] The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case. [cite]” 447 US at 638.
The Darden majority declined to find that the prosecutor’s argument in that case violated the defendant’s right to a fair trial because it “did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” 477 US at 181–182. However, in Mr. Jamal’s case, the prosecutor’s closing argument did implicate specific rights of the accused, namely, the right to the presumption of innocence and the right not to be convicted unless proved guilty beyond a reasonable doubt. See In re Winship, 397 US 358, 364 (1970)(due process clause requires prosecution to prove each element of a charged crime beyond a reasonable doubt).
Thus, regardless of whether or not Caldwell directly applies to the prosecutor’s closing argument in the innocence/guilty phase of Mr. Jamal’s capital trial, the District Court was incorrect in assuming that the prosecutor’s remarks are subject only to the Darden standard; rather, under Beck, because this was a capital trial, if the prosecutor’s remarks had the effect of “diminish[ing] the reliability of the guilt determination” then the conviction must be overturned.
And since the underlying due process rights at issue are the rights to the presumption of innocence and not to be convicted unless the prosecution proves its case beyond a reasonable doubt, the specific source of law to which to look is the case law with regard to the constitutional violations which occur when the burden of proof in a criminal trial is improperly shifted from the prosecution to the defense. The key cases in this area involve improper jury instructions which have the effect of so shifting the burden of proof. They uniformly hold that this violates the due process clause of the Fourteenth Amendment. See, e.g., Sandstrom v Montana, 442 US 510, 521, 524 (1979); Mullaney v Wilbur, 421 US 684 (1975); Patterson v New York, 432 US197, 215; Francis v Franklin, 471 US 307, 324, n. 8 (1985).
The District Court denied the claim, in part, on the basis that the trial judge gave the standard instructions on burden of proof and instructed that counsel’s arguments were not evidence. However, this is entirely beside the point inasmuch as the prosecutor’s arguments basically told the jury to ignore the burden of proof instructions and, instead, give the prosecution the benefit of the doubt, and not to worry about it because they could count on the appellate courts in “appeal after appeal” to correct any mistaken guilty verdict.
Instructing that counsel’s arguments are not evidence does not cure that particular prosecutorial misconduct because it is not a matter of the prosecutor’s argument being mistaken for evidence; rather the point is that the prosecutor misrepresented the law with regard to the defendant’s right to appeal, exploited the lay jurors’ misunderstanding of the nature and scope of appellate review, and implicitly told the jury to disregard the law and give the benefit of the doubt to the prosecution instead of the defense. No specific curative instructions were given to undo the effects of the prosecutor’s remarks.
V. THE DENIAL OF CLAIM 18 (SWAIN) SHOULD BE CERTIFIED FOR APPEAL.
Claim 18 alleges that Mr. Jamal was deprived of a fair trial because of Judge Sabo’s refusal to grant a challenge for cause of a clearly biased white juror, Mr. Courchain, and the state court’s determination to the contrary involved an unreasonable and erroneous misapplication or misinterpretation of Irvin v Dowd, 366 US 717 (1961); Swain v Alabama, 380 US 202 1965); Aldridge v United States, 283 US 308 (1931); United States v Dellinger, 472 F2d 340, 367 (7th Cir. 1972).
The District Court denied Cross-Appellant’s motion for leave to file a redrafted and amended habeas petition which inserted into this claim additional trial transcript extracts from the voir dire of Mr. Courchain, on the basis that since the trial transcript was already part of the record, the amendment was unnecessary. (Docket #136, District Court Order of 12/18/01, p. 13, n. 13.) However, in denying Claim 18, despite claiming to have done so “on the totality of juror Courchain’s responses,” the District Court pointedly ignored the very portions of the voir dire transcript to which it had been directed by the motion to amend. It is precisely these portions of the transcript which demonstrate that, contrary to the District Court’s conclusion, Judge Sabo’s determination that Courchain would be a fair and impartial juror was unreasonable. Consider the following:
MR. JACKSON: Now, as a result of all of what you’ve heard and read, do you feel that you would have an open mind if you were selected as a juror in determining the guilt or innocence of Mr. Jamal?
THE PROSPECTIVE JUROR: That I couldn’t say.
MR. JACKSON: ... We need to know now in your best judgment, whether or not you could be objective in this matter, stay in the middle, don’t lean towards the prosecution, don’t lean towards the defense, whether or not you could objectively determine the facts in this case?
THE PROSPECTIVE JUROR: Do you want an honest answer?
MR. JACKSON: Yes, sir.
THE PROSPECTIVE JUROR: No.
MR. JACKSON: You cannot do that?
THE PROSPECTIVE JUROR: No. (6/16/82 Tr. 391–394)
As if this were not enough to demonstrate the bias of this juror and the indisputable basis mandating that he be excused for cause, in subsequent questioning the juror volunteered that he could not set aside what he had read in the newspaper because “[u]nconsciously it would still be there” and “[n]obody is going to get it out of your brain” (6/16/82 Tr. 394) and he could not “guarantee what sub-consciously will happen” if he were on the jury. (6/16/82 Tr. 395) The juror directly and specifically admitted that, in his own words: “...unconsciously I don’t think I could be fair to both sides.” (6/16/82 Tr. 395) When then asked if he could, nonetheless, “unconsciously” set his opinions aside, the juror responded: “That is the same thing, isn’t it?” The District Court entirely ignored these statements by juror Courchain in upholding Judge Sabo’s refusal to excuse him for cause. However, these statements were subsequent to the bulk of the juror’s answers cited by the District Court to support its opinion. Moreover, they are clearly genuine and honest expressions not only of the juror’s self-admitted bias, but also of his inability to rid himself of it. As such, they are certainly worthy of more credence than the rote repetition of the formalized mantras elicited from him by Judge Sabo.
Finally, the District Court erroneously rested its denial of this claim on Patton’s admonition that the trial judge is generally in the best position to determine the competency, impartiality and credibility of a juror’s voir dire responses. However, the District Court entirely ignored the fact that Patton’s general rule is obviously inapplicable in this case, where the trial judge, according to the uncontroverted declaration of Court Reporter Terri Maurer-Carter, Docket #110, demonstrated his own incompetence to make such determinations by exclaiming in the antechambers of the court at the time of Mr. Jamal’s trial: “Yeah, and I’m going to help ’em fry the nigger.” Deference to the exercise of “discretion” under such circumstances is deference to racism, pure and simple, and can itself have no justification.
VI. THE DENIAL OF CLAIM 29, AND THE STRIKING FROM THE RECORD OF THE SUPPLEMENT TO SAID CLAIM (DOCKET #116) SHOULD BE CERTIFIED FOR APPEAL.
Claim 29 alleges that Cross-Appellant was deprived of his right to due process of law by being subjected to unfair post-conviction proceedings deformed by the extradjudicial bias of Judge Sabo. The stricken supplement to that claim raises direct evidence of racial bias by Judge Sabo at both the trial and the post-conviction proceedings based upon his notorious “fry the nigger” remark overheard by Court Reporter Terri Maurer-Carter. This is clearly a timely claim as it was presented within a matter of weeks from the witness coming forward and contacting counsel for Cross-Appellant. There is no way that this information could have been uncovered other than by the witness herself coming forward with it.
The District Court denied this claim on the principal basis of its ruling that there is no right to due process in post-conviction proceedings. This Court should most certainly issue a COA on this issue based solely upon the District Court’s acknowledgment that whether there is a right to due process in post-conviction proceedings is an open issue in both the Third Circuit and the U.S. Supreme Court, although the majority view is contrary. In Dickerson v Walsh, 750 F2d 150, 153–154 (1st Cir. 1984), which represents the minority view, the First Circuit held that federal habeas does reach claims of error during state post-conviction proceedings.
It should be noted, however, that all of the cases cited by the District Court from the circuits which hold that federal habeas does not reach errors in state post-conviction proceedings, with the exception of one, pre-date enactment of the AEDPA. The AEDPA changed the rules of federal habeas procedure by enacting more stringent requirements to take claims first through state court post-conviction proceedings and imposing a stricter requirement of deference to state court fact-finding. By so doing, the AEDPA basically delegates to the state courts the first-line responsibility for defense of the federal constitutional rights of persons within the borders of their states. Thus, these state court proceedings are intimately intertwined with federal habeas proceedings. That being the case, it is reasonable to expect that state post-conviction proceedings will comply with basic federal due process requirements and to provide a remedy by federal habeas if they do not.
Moreover, in the specific situation of this case, it should be noted that the Supplement to Claim 29, which is based upon Terri Maurer-Carter’s declaration which sets forth direct evidence of racism and extradjudicial bias by Judge Sabo, goes not only to violations of Mr. Jamal’s right to fair post-conviction proceedings, but also to violations of his right to a fair trial. A COA should be issued on this Claim and the striking of the Supplement from the record to review this new claim of racial prejudice by the trial judge, even if this Court were indisposed to review that aspect of the claim directed to extrajudicial bias by Judge Sabo in the post-conviction proceedings.
Cross-Appellant duly exhausted the claim by submitting an amendment to his post-conviction petition when it was still pending in the Court of Common Pleas. Since both the District Attorney and the District Court took the position that the post-conviction petition was futile and would be denied on jurisdictional grounds (which it was), this issue was properly exhausted.
VII. THE DENIAL(S) OF CLAIM 30 (FARETTA) AND RELATED ORDERS SHOULD BE CERTIFIED FOR APPEAL.
Proposed Claim 30 alleges that Cross-Appellant Jamal’s Sixth Amendment right to self-representation under Faretta v California, 422 US 806 (1975), was violated when the trial judge, Judge Sabo, refused Mr. Jamal’s request that his friend, John Africa, a non-lawyer, be permitted to sit beside him at counsel table to assist and advise him whilst he was defending himself. Although there is direct support, in both the reasoning which underlies Faretta and the historical sources cited by the Faretta Court to support its holding, for the existence of a right to assistance of a lay advisor (at no cost to the State) when one is defending oneself, and there is no case authority in point which holds to the contrary, the District Court gave this claim short shrift in its opinion, ignoring the supporting arguments and authorities pled directly into the proposed amended version of Claim 30 included in the Proposed First Redrafted and Amended Habeas Petition and striking from the record the two amicus briefs devoted to the issue attached as exhibits to the Motion to Amend.
The District Court blatantly mischaracterized the issue as whether one had a right to be represented by a non-lawyer and cited case authority which holds that there is no such right. That case authority was entirely inapposite, however, as it was made quite clear by Cross-Appellant in his statements in the trial transcript, quoted verbatim in the amended version of Claim 30, that he did not want his friend John Africa to represent him, rather, he wanted to represent himself with his friend’s assistance. Moreover, Judge Sabo himself, in ruling on defense post-trial motions, made it clear that when he denied Mr. Jamal’s request that Mr. Africa be permitted to sit with him at counsel table, the judge fully understood that Mr. Africa was wanted “as an assistant present at defense table” and not as unlicensed “trial counsel.” (Opinion of Judge Sabo Denying Post-Trial Motion For New Trial, at 12.)
Had the District Court considered rather than ignored Cross-Appellant’s analysis of Faretta, it would have discovered that both the reasoning and the historical analysis in Faretta which underpins the Court’s holding inexorably leads to the conclusion that the Sixth Amendment right to self-representation must include as an integral part the right to lay assistance at counsel table at no cost to the State.
The Supreme Court begins its opinion in Faretta by noting that the Sixth Amendment did not create the right to self-representation, but instead implicitly codified an ancient pre-existing right inherited from the common law. The Faretta Court points out that the right to represent oneself actually predates the right to representation by counsel, as the latter was itself founded on the earlier right to the assistance of one’s friends when pleading one’s own cause in the ancient law courts. Originally, there were no lawyers. Instead, people represented themselves in the courts of the King and coterminous with their ancient right to represent themselves was the right to have the assistance and counsel of their friends in so doing. As the Faretta Court acknowledges, the right to the assistance of one’s friends when representing oneself was explicitly recognized in a number of colonial charters prior to the American Revolution.
Given that, as the Faretta Court explains it, the right to counsel explicitly codified in the Sixth Amendment itself derives from an earlier and ancient common law right to have the assistance of one’s friends when representing oneself, and given that Faretta holds that the ancient right to self-representation is implicitly codified in the Sixth Amendment, then the right to assistance of one’s friends when representing oneself must also be an integral part of the right to self-representation as implicitly codified in the Sixth Amendment. Thus, the state court’s denial of Mr. Jamal’s right to have the assistance at counsel table of his friend, Mr. Africa, at no cost to the State, whilst representing himself, must necessarily be an erroneous and unreasonable misinterpretation or misapplication of Faretta.
Moreover, according to the Faretta Court, our “self-reliant ancestors” self-consciously wrote into the early colonial charters and state constitutions explicit statements of their right to self-representation to protect themselves from the depredations of the professional lawyer who “was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King’s Court, all bent on the conviction of those who opposed the King’s prerogatives, and twisting the law to secure convictions.”422 U.S. at 826, quoting C. Warren, A History of the American Bar 7 (1911). Given that history, it would be both self-contradictory and ahistorical to hold that one who exercises the right to represent herself can only be assisted by a lawyer and not a lay person.
Additionally, in Faretta, 422 U.S. at 833, n. 43, the Supreme Court acknowledged the difficulties that a pro se defendant may encounter in attempting to exercise the right to self-representation: “As stated by Mr. Justice Sutherland in Powell v. Alabama, 287 U.S. 45: ‘Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
Given the Faretta Court’s concern with the difficulties inherent in self-representation, it is eminently reasonable to conclude that the right to defend oneself must necessarily imply the right to the assistance of a non-lawyer friend in order to make it practically possible to exercise that right. And given the Faretta Court’s additional concern that to “force a lawyer on a defendant can only lead him to believe that the law contrives against him,” 422 U.S. at 833, a pro se defendant must have the right to assistance of a non-lawyer friend at counsel table even where the Court appoints a “back-up attorney,” particularly since a pro se defendant has a right to maintain “actual control” over her case. See McKaskle v. Wiggins, 465 U.S. at 176–179.
Since, according to the Faretta Court, it is “the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage,” and the defendant’s choice must be honored out of “that respect for the individual which is the lifeblood of the law,” 422 U.S. at 834, that individual’s free choice to have a lay person assist him at counsel table is necessarily deserving of the same respect as his choice to represent himself.
The District Court also mistakenly ruled that this issue was unexhausted and procedurally defaulted. However, the version of Claim 30 included in the Proposed First Redrafted and Amended Habeas Petition meticulously cites the briefs in post-conviction and on post-conviction appeal which raise the issue and the Pennsylvania Supreme Court’s decision on post-conviction appeal which ruled on it. See Commonwealth v. Abu-Jamal, 720 A2d 79, 108 (Pa 1998). The District Court’s denial of Claim 30 is clearly in error. The state court’s denial of this claim is unreasonable and contrary to Faretta. Accordingly, a COA should issue for certification of this point for appeal.
CONCLUSION
For the foregoing reasons it is respectfully requested that this motion be granted.
Dated: February 6, 2002
Respectfully submitted,
MUMIA ABU-JAMAL
SCI Greene, No. AM8335
175 Progress Drive
Waynesburg, PA 15370-8090
Cross-AppellantJ. MICHAEL FARRELL*
Attorneys for Cross-Appellant Mumia Abu-Jamal
*Local Counsel
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