AMICUS BRIEF FOR MUMIA FILED IN PENNA SUPREME COURT (legal document)
Posted on Saturday, August 31, 2002
by Fatirah Legal
Update
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DIVISION NO. 364 CAPITAL APPEAL DOCKET COMMONWEALTH OF PENNSYLVANIA,
Appellee,
vs.
MUMIA ABU-JAMAL,
Appellant.
BRIEF OF AMICI CURIAE I.L.W.U. LOCAL 10, N.A.L.C. GOLDEN GATE BRANCH #214, NATIONAL UNION OF JOURNALISTS (U.K.), INDEPENDENT LOCAL UNIONS "ZAHYST" AND "USPIH" (UKRAINE), AND INTERNATIONAL LONGSHOREMEN’S ASSOCIATION LOCAL 1422, SUPPORTING APPELLANT MUMIA ABU-JAMAL.
On Appeal from the Order of the Pennsylvania County Court of Common Pleas (December 11, 2001)(Dembe, J.) denying relief under the Post-Conviction Relief Act, the Common Law, the Pennsylvania Constitution, and the United States Constitution.
MICHAEL F. YAMAMOTO, ESQ. Attorney-at-Law 800 Wilshire Boulevard, Suite 530 Los Angeles, Ca. 90017
MICHAEL COARD, ESQ. Attorney-at-Law Bowser Law Center 250 South 16th Street Philadelphia, PA 19102
Attorneys for Amici Curiae
PRELIMINARY STATEMENT, IDENTITY OF AMICI CURIAE AND COUNSEL, AND AUTHORITY FOR FILING BRIEF.
ILWU LOCAL 10 (SAN FRANCISCO BAY AREA)
The International Longshore and Warehouse Union ("ILWU") has approximately 60,000 members in California, Washington, Oregon, Alaska, Hawaii and Canada. Amicus Curiae ILWU Local 10 is the longshore division of the ILWU in the San Francisco Bay Area. The ILWU, and particularly Local 10, has a proud history of standing for the unity of the working class and opposing racial discrimination: "The ILWU's legacy on human rights is long and distinguished. It has taken many turns, and has often been at odds with public opinion, but it has always represented the will of the membership, who demanded a principled defense of civil rights and civil liberties for all workers, regardless of race, ethnicity, gender or political point of view. Led by the longshore and warehouse workers in San Francisco in 1934, the new union was racially integrated from the beginning." The ILWU Story-Six Decades of Militant Unionism: Human Rights, Minorities and Women, www.ilwu19.com.
In the 1930's the ILWU blocked the shipment of supplies to the rising fascist movements in Europe and Asia. After World War II the union opposed escalation of the arms race and the Cold War. Local 10 was active in the Civil Rights Movement in the 1960's. Local 10 members participated in sit ins to protest the "lily white" employment practices of car dealers on San Francisco’s "auto row." Local 10 sent an official delegation to participate in the March on Washington where Martin Luther King gave his famous "I have a dream" speech. In the early 1960's the ILWU was the first union to oppose the war in Vietnam. The ILWU was also the first union to oppose apartheid in South Africa. In the 1980's, Local 10 repeatedly refused to handle South African cargo. In 1974, the ILWU joined an international boycott of Chilean cargo following the overthrow of the democratically elected Allende government and, in 1978, Local 10 refused to handle bomb parts bound for Chile in solidarity with imprisoned Chilean trade unionists. In 1981, the ILWU imposed a labor boycott on military cargo bound for the dictatorship in El Salvador. ILWU Local 10 has taken an active role in the defense of Mumia Abu Jamal during the last 12 years and, in April of 1999, initiated the call which resulted in the ILWU shutting down the entire West Coast from Bellingham, Washington to San Diego, California with an 8 hour political strike to demand justice for Mumia. On October 11, 2001, the President of Local 10 sent a letter to Governor Mark Schweiker urging him to order the state attorney general to take over the representation of the Commonwealth of Pennsylvania in Mumia's case from the Philadelphia District Attorney and stipulate that Mumia's conviction be overturned. On June 22, 2002, the membership of ILWU Local 10 unanimously voted to submit this amicus brief, authored by attorney Michael Yamamoto, to this Court. The resolution authorizing this action expresses the union's concern over the case of Brother Jamal in the following terms: Whereas, the ILWU has been defending innocent death row journalist and black political activist Mumia Abu Jamal for the last 12 years, through support letters from our International Presidents, resolutions from our organizational divisions, and most importantly our coastwide shutdown of U.S. West Coast ports in April 1999; and
Whereas, Mumia is himself a union member and strong supporter of the labor movement who supported our Neptune Jade solidarity action for the Liverpool dockers and refused to be interviewed by a scab T.V. crew during the ABC strike despite the crucial importance of media coverage to his defense campaign; and
Whereas, the state and federal courts have refused to hear the confession of ex mob hit man Arnold Beverly, who swears that he murdered Police Officer Daniel Faulkner on behalf of corrupt police and organized crime because the officer was an obstacle to their pay offs racket, and that Mumia had nothing to do with the shooting; and
Whereas, as a result of the international campaign in support of Mumia and the ILWU's participation in that campaign, the federal judge was forced to throw out Mumia's death sentence, but refused to overturn his conviction despite his innocence and new evidence that the racist trial judge Sabo at the time of the trial, was overheard saying, in reference to Mumia: "Yeah, and I'm going to help 'em fry the n----r"; and
Whereas, Mumia's case is now on appeal to the Pennsylvania Supreme Court and the Federal Court of Appeals, but the history of past frame ups of labor activists like Sacco and Vanzetti, who were executed despite the confession of the real murderer, has taught us to put no faith in the bosses' courts; and
Whereas, Mumia's life is still in danger because the Philadelphia District Attorney is appealing the reversal of his death sentence and threatening to again seek the death penalty in a new sentencing hearing; and
Whereas, it is intolerable that an innocent man like Mumia should remain in prison when the real murderer has confessed; and
Whereas, the power of the racially integrated labor movement can stop the frame up and free Mumia;
Therefore be it resolved that ILWU Local 10 sign on and fully endorse the Brief of Amicus Curaie to be submitted on behalf of Brother Jamal by Attorney Michael F. Yamamoto; and
Be it further resolved that Local 10 request that the Longshore Caucus of the ILWU demand that Mumia Abu Jamal's conviction be overturned and that he be freed immediately; and
Be it further resolved that Local 10 request that the International President of the ILWU send an Open Letter to the Governor of Pennsylvania demanding that the state attorney general take over Mumia's case from the Philadelphia District Attorney stipulating that Mumia's conviction be reversed and that he be freed; and
Be it finally resolved that Local 10 request that the International President of the ILWU propose to the AFL CIO Executive Board that they call a national day of labor action to free our brother Mumia Abu Jamal.
N.A.L.C. GOLDEN GATE BRANCH #214 (SAN FRANCISCO BAY AREA) Tony Gallardo, President of Golden Gate Branch #214 of the National Association of Letter Carriers (NALC) has provided the following statement of interest on behalf of Branch #214:
Golden Gate Branch #214 of the NALC has voted to sign on as a co-signatory to the Amicus Curiae brief to be filed in the Pennsylvania Court of Common Pleas on behalf of Mumia Abu-Jamal. This vote took place at our August 7, 2002 regular membership meeting.
Golden Gate Branch #214 has been representing United States Post Office letter carriers since its founding in 1891 in San Francisco, California, as part of the National Association of Letter Carriers which was formed in 1889. Our 2500-member local represents all letter carriers in San Francisco, Daly City, Redwood City, Marin County and San Leandro. We are part of a national union, the NALC, which represents all city letter carriers in the United States and has over 300,000 members.
The following resolution was adopted by Branch #214 at its June 5, 2002 regular membership meeting, to present to the 2002 national convention of the NALC: Whereas, Mumia Abu Jamal is an award-winning African-American journalist and human rights advocate who has been imprisoned since 1982 on Pennsylvania’s death row for a crime he did not commit, whose execution by the state was stopped [twice] only by massive international protests; and
Whereas, unions representing more than 10 million workers have gone on record demanding a new trial for Jamal, including the 1.8 million member California Labor Federation, the giant Service Employees International Union (SEIU), American Federation of State, County & Municipal Employees (AFSCME), American Postal Workers Union, International Longshore & Warehouse Union, United Farm Workers Union, Congress of South African Trade Unions, General Confederation of Workers of France (CGT), Transport & General Workers Union (England), California Nurses Association, Sailors Union of the Pacific, California Federation of Teachers, International Dockworkers Conference, Amalgamated Transit Union, as well as many central labor bodies and union locals, including NALC locals; and
Whereas, in 1999, ILWU dock workers shut down all West Coast ports for one day, and teachers in the state of Rio de Janeiro, Brazil stopped work for one hour, so they could hold meetings to demand freedom for Mumia Abu Jamal; and
Whereas, Mumia Abu Jamal, in a courageous act of solidarity with locked-out NABET/CWA workers, refused to be interviewed by ABC-TV scab crews on the "20/20" show – even though this meant giving up an opportunity to publicize his case – just as Mumia, the "voice of the voiceless", has taken up the cause of the underdog in many other arenas of society; and
Whereas, Mumia Abu Jamal’s 1982 trial was characterized by reliance on contradictory evidence from the police?coercion?police intimidation of witnesses?suppression of critical evidence including ballistics and forensic evidence?a totally incompetent defense lawyer?illegal exclusion of African American jurors?and infringement of defendant’s right of representation, in a trial presided over by a notorious "hanging judge" Albert Sabo, who had sentenced more people to death (31) than any other judge in the US?and about whom six former Philadelphia prosecutors stated in sworn court documents that "no accused could receive a fair trial" in Sabo’s court; and
Whereas, an individual named Arnold Beverly has submitted a sworn affidavit that he [not Mumia] killed Police Office Faulkner, the man Mumia is accused of killing, and Beverly passed a lie detector test administered by one of America’s foremost polygraph specialists, Charles Honts, yet the new judge assigned to the case, William Yohn, refused to accept the Beverly confession into evidence, stating that even innocence is no defense; and
Whereas, Mumia’s fight for justice and a new trial is supported by the European Parliament, the Japanese Diet, the San Francisco Board of Supervisors, the Detroit City Council, the President and Prime Minister of France, Nelson Mandela, authors Norman Mailer, Maya Angelou and Alice Walker, actors Danny Glover, Ossie Davis, Paul Newman, Mike Farrell and Whoopi Goldberg, California State Senate President pro tem John Burton, Archbishop Desmond Tutu, the NAACP, Amnesty International, the Episcopal Church of the United States, and millions of others around the world; therefore be it
RESOLVED, that the National Association of Letter Carriers join with trade unionists around the world, among tens of millions who have advocated for the freedom of this courageous and innocent man, in demanding that Mumia Abu Jamal be granted a new trial so that the suppressed evidence can be heard and he can have the opportunity to prove his innocence and walk free.
NATIONAL UNION OF JOURNALISTS (UNITED KINGDOM)
The objects of the National Union of Journalists (NUJ), which was formed in 1908, include the defense and promotion of the principles and practice of journalism, freedom of the press and the defense and promotion of social justice and civil liberty. The NUJ is committed to defend these objects on behalf of its members and journalists everywhere. The NUJ believes that Mumia Abu-Jamal’s case represents an attack on these objects. Mumia Abu-Jamal is an internationally respected journalist who has worked tirelessly and courageously in exposing corruption and racism.
The NUJ believes that Mumia Abu Jamal is innocent, that there is clear evidence to prove his innocence and that he has suffered gross violations of the judicial process both at his original trial and during the subsequent appellate process. The NUJ believes that Mumia Abu-Jamal’s original, wrongful conviction and death sentence were, in large part, attributable to his journalistic activities.
The NUJ believes that Mumia Abu-Jamal’s continued incarceration now is, in large part, attributable to his journalistic activities. The NUJ believes that those who have been offended and threatened by Mumia Abu-Jamal’s journalistic activities have been instrumental, first, in securing his original, wrongful conviction for a murder which he did not commit and, secondly, in perpetuating his wrongful incarceration under threat of execution for the last twenty years. In 1995, the NUJ granted Mumia Abu-Jamal Honorary Membership of the NUJ. This was the first and only time in its history that the NUJ has granted Honorary Membership. This step was taken because the NUJ believes that Mumia Abu-Jamal has been victimised for his journalistic activities. Since 1995, the NUJ has made written representations about Mumia Abu-Jamal’s case to the Governor of Pennsylvania, the President of the United States and the US Ambassador in London. The NUJ has sent a number of official delegations to the US Embassy in London to seek an audience with the US Ambassador in London. The NUJ has participated in public meetings, demonstrations and pickets in support of the campaign to secure Mumia Abu-Jamal’s freedom. The NUJ has introduced motions in support of Mumia Abu-Jamal nationally across the trades union movement in the UK.
Mumia Abu-Jamal’s campaign is actively supported by the NUJ’s National Officials, the National Executive Council, the NUJ’s Black Workers’ Council and numerous branches. The NUJ regularly updates its members about Mumia’s case in the Union’s own journal, The Journalist. The Annual Delegate Meeting of the Union has consistently and unanimously passed motions in support of Mumia and his appeals.
On 13th August 2002, the National Union of Journalists gratefully adopted this Amicus Brief prepared by attorney Michael F. Yamamoto. It would be the ultimate injustice for one of the NUJ’s members to remain in prison under the threat of execution when there is such abundant and irrefutable evidence to prove his innocence. The NUJ respectfully urges the Court to consider this Amicus Brief carefully and to grant Mumia Abu-Jamal’s appeal.
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION LOCAL 1422
International Longshoremen’s Association Local 1422 represents deep-sea longshore workers in the Port of Charleston, South Carolina, and it has more than a thousand members and retirees. The Union and its members have been fighting for justice for more than 60 years since it was chartered in 1936 -- justice on the Charleston waterfront and justice everywhere else that working people and other citizens are threatened.
Local 1422 knows that an injustice to one is an injustice to all. Local 1422 has itself been the target of official abuse of power. In January 2000, following a demonstration, several members of Local 1422 were arrested on minor trespass charges. With no basis, the Attorney General of South Carolina raised the charges to felony rioting, in a naked effort to intimidate the Union and gain votes for a partisan political campaign.
Justice was eventually done, the Attorney General was forced out of the case, and the rioting charges were dropped. This would not have been possible without the support of people throughout the United States and around the world. When the eyes and ears of men and women of conscience focused on the injustice in Charleston, we -- and justice -- prevailed. That is why we have joined this brief, in order to shine light from the outside on the case of Mumia Abu Jamal. Local 1422 has repeatedly spoken up for justice for Mumia. We do so again now, and join with our brothers and sisters in seeking justice in this Court.
INDEPENDENT LOCAL UNIONS "ZAHYST" AND "USPIH" (KIEV, UKRAINE)
The "Zahyst" union in Kiev, Ukraine, is an independent union which organizes in the Rosinka LTD soft drink plant and the Arsenal military plant and is led by Raisa Marochkina. It is presently engaged in a struggle with management to oppose wage cuts and demand that wages be paid on time. The "Uspih" union is an independent union which organizes students in Kiev, Ukraine, over issues of improving conditions and opposing price increases in hostels, and is led by Olexander Malolitniy. The members of both unions have adopted the following statement authorizing this amicus brief to be filed on their behalf:
We, the members of the independent unions "Zahyst" and "Upsih", Kiev, Ukraine, would like to express our full solidarity with comrade Mumia Abu-Jamal and his heroic struggle for justice and freedom. We resolutely protest his long-term imprisonment despite absolutely clear evidence of his innocence. The imposition of the death sentence on Mumia Abu-Jamal was an unjust and racist act by the State of Pennsylvania; its substitution by a sentence of life-imprisonment was a cynical trick by bourgeois justice.
We know why the State tried to kill Mumia and still keeps him in prison: It is not because he allegedly killed a policeman – Mumia is innocent – it is because of his political activity to unify the workers of all races and countries. We believe that the united struggle and solidarity of workers from all countries is vitally necessary to free Mumia from prison and to free ourselves from oppression and exploitation. It is for these reasons that we hereby authorize attorney Michael F. Yamamoto to file this amicus brief in support of Mumia Abu-Jamal in the Supreme Court of Pennsylvania.
COUNSEL FOR AMICI CURIAE
Attorney Michael F. Yamamoto, Esq., Counsel for Amici Curiae, has been a criminal defense attorney since 1974, having tried over 200 jury trials, including two death penalty trials. Mr. Yamamoto was voted "Defense Attorney of the Year" in 2002 by the Criminal Justice Section of the Los Angeles County Bar Association. He is a member in good standing of the California State Bar and the Bar of the United States District Court for the Central District of California and the United States Court of Appeals for the Third Circuit. Mr. Yamamoto is immediate past president of the California Attorneys for Criminal Justice, the statewide specialized bar association of criminal defense attorneys. He is a past president of the Japanese American Bar Association of Greater Los Angeles, past president of the Multi-Cultural Bar Alliance of Los Angeles (a coalition of every minority, women’s and gay and lesbian bar association in the Los Angeles area). He is a founding board member of International Bridges to Justice, an organization of clerics, lawyers and educators, devoted to advancing Human Rights in the governments of Asia, assisting signatories to International Human Rights agreements to provide education, training and guidance in due process for their judicial systems. He is currently serving on the California Judicial Council Task Force on Jury Improvement, having been selected by the Chief Justice of the California Supreme Court, having previously been similarly appointed to serve on the California Judicial Council Task Force on Access to Justice. He is currently serving on the Board of Directors of the Criminal Courts Bar Association of Los Angeles and the Asian Pacific American Bar Association of Southern California, having served on the Boards of the Korean American Bar Association, American Civil Liberties Union of Southern California and the Los Angeles County Bar Association.. He is currently serving as a delegate to the American Bar Association House of Delegates, representing the State Bar of California.
Attorney Michael Coard, Local Counsel for Amici Curiae, is a member in good standing of the Bar of the Commonwealth of Pennsylvania, the Bar of the United States District Court for the Eastern District of Pennsylvania, and the Bar of the United States Court of Appeals for the Third Circuit. His practice consists of criminal defense and civil litigation. Mr. Coard is a member of the American Civil Liberties Union, the Amnesty International Lawyers Committee, and the National Lawyers Guild.
AUTHORITY FOR FILING AMICUS BRIEF
This brief is submitted to the Court pursuant to Rule 531(a), Pennsylvania Rules of Appellate Procedure, which provides, in pertinent part as follows:
"Anyone interested in the questions involved in any matter pending in an appellate court ... although not a party, may, without applying for leave to do so, file a brief amicus curiae in regard to those questions."
ARGUMENT
INTRODUCTION
Petitioner Jamal is appealing dismissal of his Petition for Post-Conviction Relief and/or Writ of Habeas Corpus by the Court of Common Pleas on grounds of an alleged lack of jurisdiction. The evidence which proves that Mumia Abu-Jamal is innocent directly relates to three of the legal issues in this case with regard to the jurisdictional question:
(1) Petitioner’s argument that the lower court erred and abused its discretion in failing and refusing to invoke its inherent powers and hear his claims for relief on the merits in order to prevent a grave miscarriage of justice under the extraordinary circumstances of this case; and
(2) Petitioner’s argument that this Court should overturn the Peterkin-Fahy line of cases and rule that the filing deadlines created by the 1995 amendments to the Post-Conviction Relief Act (42 Pa. C.S. 9541, et seq.), created a statute of limitations subject to equitable estoppel in appropriate cases, such as this one which involves claims of actual innocence, rather than having created a jurisdictional bar; and
(3) Petitioner’s argument that this Court has the jurisdiction and power to hear Petitioner’s claims for relief on the merits, reverse his conviction, and order his release, under its King’s Bench powers (Pennsylvania Constitution, Article 5, Section 2; 45 Pa CS 502) to assume original jurisdiction over all matters of a criminal and public nature as the "custos morum of all subjects of the realm" and/or its Extraordinary Jurisdiction (42 Pa CS 726) to "assume plenary jurisdiction" of any matter involving "an issue of immediate public importance" and "otherwise cause right and justice to be done."
Moreover, Petitioner Jamal’s "actual innocence" is, in and of itself, an independent basis for overturning his conviction, above and beyond, his legal claims of constitutional error based upon an unfair trial and ineffective representation by trial and appellate counsel.Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997).
It is the purpose of this amicus brief to provide an independent review and evaluation of the evidence. As will be demonstrated, below, the results of that independent review and evaluation of the evidence are that Petitioner Jamal meets the stringent test for an "actual innocence" claim proposed by Justice Blackmun in his dissent in Herrera v Collins, 506 US 390, 441-444, 113 S. Ct. 853, 882-883 (1993), i.e., that beyond demonstrating doubt about whether Petitioner is guilty, the evidence affirmatively proves that he is innocent.
I
PETITIONER MUMIA ABU-JAMAL WAS WRONGFULLY CONVICTED BASED UPON THE TESTIMONY OF UNRELIABLE WITNESSES.
Petitioner has been wrongfully convicted based upon the testimony of unreliable witnesses, all of whom were either inherently suspect at the outset or subsequently shown to be testifying falsely. All of the evidence submitted by the prosecution, when examined in connection with evidence that has been obtained since the trial, can be shown to overwhelmingly support Petitioner’s innocence and contradict the original and clearly erroneous verdict of guilt. Because convicting and executing the innocent could conceivably qualify as the ultimate injustice, this case cannot be allowed to slip through the cracks of our justice system, without addressing these compelling and uncontradicted facts.
1. The Confession of Arnold Beverly. Central to Petitioner’s claim of innocence is Arnold Beverly’s admission that he, Arnold Beverly, shot the victim and that Petitioner did not. Arnold Beverly’s declaration describes his complicity in a conspiracy to assassinate Officer Faulkner, then carefully details his own participation, starting with being shown a photograph of his victim, being told where and when to strike, waiting for the opportunity, approaching the victim from the vantage point of the subway entrance across the street, firing at Officer Faulkner’s face at point-blank range, and escaping with the assistance of police officers. Every detail of Beverly’s confession is corroborated by and consistent with other evidence presented at the trial and by the newly-discovered evidence as well as the lie detector test administered by polygraph expert, Dr. Charles R. Honts, Professor of Psychology at Boise State University.
2. Testimony of Yvette Williams. Cynthia White, a prostitute who testified at trial that she saw Petitioner shoot the victim, not only testified inconsistently with her testimony in the previous trial of William Cook, Petitioner’s brother, but admitted to Yvette Williams that she was forced to testify falsely against Petitioner even though she was high on drugs at the time of the incident and did not even see the shooting. Cynthia White told Williams that the police had threatened her life and had specifically threatened to consolidate her cases and send her to prison if she did not testify to what they told her to say. Yvette Williams witnessed Cynthia White returning from police interrogations with prohibited contraband "like cigarettes and candy and even hoagies, syringes and white powder". Williams was in custody with Cynthia White, whom she knew as "Lucky", after the shooting and had kept quiet about this incident because of her fear of the police, coming forward after all this time because she "couldn’t get it out of my mind. I kept thinking that man could die because of all the lies that Lucky told on that witness stand and Mrs. Faulkner would never know the truth".
3. Declaration of Private Investigator George Michael Newman. Convicted felon and cabdriver Robert Chobert, the only other alleged "eyewitness" to the shooting, was on felony probation for arson and in continuing violation of that probation, revocation of which exposed him to over 30 years in prison. He has admitted to Private Investigator George Michael Newman that he did not see the shooting and testified falsely at trial.
4. Declaration of William Cook. Kenneth Freeman, Cook’s passenger on the night of December 9, 1981, subsequently confessed to Cook that he, Freeman, had been part of the plot to kill Faulkner, that he had been armed and had participated in the shooting. Witness Cynthia White testified to the presence of a passenger at Cook’s trial, only to conceal his presence at the trial of Petitioner Jamal in complete contradiction of herself under oath.
II
THE EVIDENCE PROVES THAT PETITIONER JAMAL IS INNOCENT.
Taken together, this evidence, along with the unlikelihood that Petitioner delivered some spontaneous, unsolicited "confession", unreported by the numerous police officers present in the hospital until months afterwards, and certainly not confirmed in the reports written by the police officers who were guarding Petitioner in the hospital, all points unerringly to his innocence. All of this happening against a sordid backdrop of police corruption attested to by Donald Hersing, during which the ranking officer at the crime investigation in this case resigned from the police force after his conviction for tax evasion from bribes and payoffs while the head of homicide was named an unindicted co-conspirator in federal corruption prosecutions. The reach of this police corruption is confirmed in the declaration of Linn Washington which documents the unaccountably unsecured and unattended crime scene so soon after the incident, a fact which is inconsistent with any police investigation procedure except an outlaw one – a frame-up. The evidence of police corruption infecting this case is undeniable. There is too much evidence of what is wrong with this prosecution and there is too much evidence establishing Petitioner’s innocence. No impartial and fully-informed jury could ignore this evidence. Petitioner Jamal’s conviction violates every principle of our system of law. Convicting the innocent is wrong. Executing the innocent is a legal atrocity. There can be no adequate redress for such a wrong. Without a fair hearing on this evidence there can be no justice.
The entirety of the evidence conclusively demonstrates that Petitioner Mumia Abu-Jamal is innocent of the crimes for which he was convicted. The execution of an innocent person would violate the Constitution. See Herrera v. Collins, 506 U.S. 390 (1993). The Eighth and Fourteenth Amendments prohibit the state from executing Petitioner or imprisoning him for life for a crime he did not commit. In Herrera, a majority of the United States Supreme Court assumed, without deciding, that a "truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." 506 U.S. at 417. In various concurring and dissenting opinions, five justices explicitly stated their agreement with this constitutional prohibition against executing innocent persons. 506 U.S. at 419 (O’Connor, J., joined by Kennedy, J., concurring) and 506 U.S. at 430-437 (Blackmun, J., joined by JJ. Stevens and Souter, dissenting).
Petitioner’s evidence of his innocence more than meets the stringent standard of proof which Justice Blackmun suggested in Herrera: "In considering whether a prison is entitled to relief on an actual-innocence claim, a court should take all of the evidence into account, giving due regard to its reliability." 506 U.S. at 443 (Blackmun J., dissenting). The court should weigh the new evidence of innocence against the evidence of guilt and determine whether the petitioner can show that he is probably innocent in light of all the evidence. If so, the Constitution bars his execution. 506 U.S. at 444 (Blackmun, J., dissenting). Accord, Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc)(free-standing claim of innocence requires petitioner to prove that it is more likely than not that he is innocent.) The evidence in this case proves that it is more likely than not that Mumia Abu-Jamal is innocent.
CONCLUSION
Because Petitioner’s claim to actual innocence is so well-documented and the critical witnesses so abundant, there can be no question regarding the merits of this claim. Not only could no reasonable juror fail to have a reasonable doubt from this evidence, no reasonable fact-finder could fail to find Petitioner to be innocent by that same high standard. When evidence of innocence is so compelling and so obvious, it was error and an abuse of discretion for the Court of Common Pleas not to recognize its validity and grant the relief that was sought in order to avert an entirely avoidable injustice. For a court to refuse to reach the merits of Petitioner Jamal’s claims for relief on the basis that it has no jurisdiction to stop the execution of an innocent person or save him from a lifetime of incarceration for a crime he did not commit would be a shocking abdication of responsibility and a violation of the constitutional guarantees of due process and protection from cruel and unusual punishment under the Fourteenth and Eighth Amendments to the United States Constitution.
Dated: August 27, 2002
INTERNATIONAL CONCERNED FAMILY & FRIENDS OF MUMIA ABU-JAMAL (ICFFMAJ)
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