SUPPLEMENTAL STATEMENT OF THE CASE

Jamal files this Sur-Reply Brief pursuant to this Court's order dated May 21, 1997.

SUMMARY OF ARGUMENT

This is a case in which numerous PCRA witnesses have testified to gross police and prosecution misconduct, suppression and outright falsification of evidence. Because of that government misconduct and suppression, compounded by the ineffective performance of Jamal's stand-in trial counsel, the jury was deprived of critical evidence supporting the defense claims that the shooter fled the scene and that police coerced and intimidated witnesses and concocted a phony "confession." When so much was kept from the defense and from the jury, it is simply impossible to conclude that Jamal's trial was fair.

The Commonwealth's Sur-Response once again steers away from the central core of Jamal's claims, and fails to grapple with the new evidence which has vitiated every element of the prosecution case -- from the incredible prosecution witnesses, to the concocted "confession," to the dubious physical evidence. Instead the Sur-Response repeats tired misrepresentations from its responsive brief, while propagating new falsehoods on secondary points. Then, on a central issue (the use of Jamal's teenage political affiliations to secure the death sentence), the Commonwealth dramatically shifts its argument, now contending that teenage statements in 1970 supplied the "motive" for a shooting eleven years later.[1]

The Commonwealth's continuing resort to evasions and falsehoods speaks to the utter infirmity of its positions. But more importantly, it illustrates the broader method of duplicity which permeates every facet of this prosecution -- from the police "investigation," to the jury selection, to the use of false testimony, to the improper summations -- misconduct so deliberate and so damaging to Jamal's rights as to clearly warrant a new trial, if not outright dismissal of the charges.

ARGUMENT

I. Because Of The Prosecution's Suppression And Falsification Of Evidence, The Jury Lacked The Ability To Fairly Judge The Credibility Of The Prosecution's Eyewitnesses, The Supposed "Confession," The Physical Evidence, Or The Defense Claim That The Shooter Fled The Scene.

With regard to Jamal's evidentiary claims, the Sur-Response mainly just rehashes the assertion that the PCRA court found all Jamal's witnesses "incredible," purportedly insulating Jamal's claims of police and prosecution misconduct from appellate review. "[B]ut as to credibility, the issue is not whether the [PCRA] court or this court would find the new evidence credible, but whether the evidence possesses sufficient credibility that it should be heard by the real factfinder: the jury." Walker v. Lockhart, 763 F.2d 942, 949 (8th Cir. 1985). See also Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1566 (1995) (standard for Brady claims is whether court can be confident jury would render same verdict in light of suppressed evidence). There can be no question that Jamal's PCRA evidence would have profoundly impacted a jury. This evidence casts doubt on the veracity and credibility of the key prosecution witnesses, vitiates the claim that Jamal "confessed," and demonstrates the utter bad faith of the police conduct during the investigation. Yet because of the Commonwealth's misconduct and the ineffective performance of Jamal's trial counsel, this wide range of favorable defense evidence was never known to the jury.

For example, the jury never knew that Gary Wakshul, the officer who guarded Jamal at the hospital, immediately signed a written report that Jamal "made no comments." (Tr. 8/1/95: 38.) The Commonwealth argues that Wakshul's earlier report that Jamal "made no comments" is incredible and irrelevant, because Wakshul was one of the officers who later claimed to have heard Jamal "confess" to the shooting. (Sur-Response 15-16.) Yet that sudden memory came about fully two months later, after a meeting with the prosecution. (Tr. 8/1/95: 78-79, 91.) [2] Wakshul's sudden change in his account would have been extremely damaging for the prosecution, because his sudden turnabout so graphically exposed that the whole confession claim was a fabrication. Had the jury known the full story of how the police and prosecution suddenly came up with the "confession" claim, and that this was contradicted by Wakshul's written report on the night of the shooting, it would have undermined the prosecution case in its entirety.

The impact of Wakshul's testimony is even greater when viewed in conjunction with the similar evolution of the prosecution eyewitness's testimony. See Kyles, 115 S. Ct. at 1571 ("evolution over time of a given eyewitness's description can be fatal to its reliability"). The Commonwealth asserts that its eyewitnesses supposedly "gave statements immediately after the shooting" and had "no opportunity . . . to coordinate their accounts." (Sur-Response 17.) Yet as Jamal has pointed out, these witnesses' stories changed on the night of the shooting and several times again between the shooting and the trial. For example, Robert Chobert initially told a police inspector at the scene that the shooter "ran away."

The Commonwealth repeatedly has denied this fact, but it is plain from the record of the pre-trial hearing: "The white cab driver stated that the man that shot the policeman ran away." (Tr. 6/1/82: 70.) In his first written statement, Chobert said that the shooter ran thirty feet (or thirty steps) away. (Tr. 6/19/82: 236; PCRA Pet. Exh. 15.) Yet at trial, faced with the fact that Jamal was found seriously wounded just a few feet from the fallen officer, Chobert again changed his account and now said the shooter walked just ten feet away from the officer. (Tr. 6/19/82: 236.) Witness Scanlan initially identified Jamal as the driver of the Volkswagen, said he could not identify the shooter, and said he was not sure whether the shooter was the man who ran across the street or the man from the Volkswagen. (Tr. 6/25/82: 46, 50.) At trial, however, Scanlan changed this testimony and suggested that the running man seemed to have fired the shots. (Id.: 6-8.)

The jury never knew the facts which would have helped explain why the prosecution witnesses changed their accounts in ways harmful to the defense. The jury did not know that the prosecution promised to help witness Chobert regain his suspended driver's license -- an important promise because Chobert made his living driving a taxi. (Brief for Appellant 40-43.) The jury did not hear the testimony of Veronica Jones and Pamela Jenkins that police pressured these prostitutes -- and prostitute Cynthia White -- to falsely identify Jamal as the shooter. [3] See Kyles, 115 S. Ct. at 1571 ("effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others").

Moreover, the jury did not know that many other witnesses saw someone flee the shooting. William Singletary, a reputable businessman, said the person who fled was the shooter, and that Jamal was innocent. But the jury did not hear from Singletary, because police destroyed his accurate written statement, forcing him to sign a false statement. (Brief for Appellant 49-53.) In response, the Commonwealth can only assert that Singletary is "incredible" -- despite the fact that Singletary was indisputably present at the scene and interviewed that night by Homicide detectives. The Commonwealth asserts that Singletary's PCRA testimony was confused, or inconsistent with the medical evidence -- as if that would excuse the gross police misconduct in destroying Singletary's accurate police statement in 1981 (when his recollections were fresh). What's more, the alleged medical inconsistencies are illusory, because they are premised on the reliability of the Commonwealth's autopsy report, which Jamal's medical expert testified was incompetent and incomplete.

The jury never heard Veronica Jones's account of how police told her they had induced Cynthia White to give false testimony. Instead, the trial court barred that testimony. (Tr. 6/29/82: 134-35, 139-41.) Because police pressured Jones to change her testimony, the jury also never heard Jones's true account of seeing two men jogging away from the scene. The Commonwealth now tries to deny that Jones ever told police she saw two men run away. (Sur-Response 19.) Yet even in its first answering brief, the Commonwealth twice acknowledged the obvious fact that she reported "she had seen someone running from the scene." (Brief for Appellee 14, 83.) Any doubt as to what Jones initially reported was resolved when the police detective who first interviewed her testified at the PCRA hearing that he was "positive" that she told him the two men were "jogging away from the shooting." (Tr. 10/2/96: 252, 257 (emphasis added); Jamal Brief After Remand 15-16.) [4]

As a result of this Commonwealth misconduct, the jury heard about the running man from only one witness, Dessie Hightower. The Commonwealth concedes that Hightower saw someone running from the scene, but baldly and falsely asserts that he "changed his testimony at the PCRA hearing," without citation to the record or discussion. (Sur-Response 18.) In reality, unlike the prosecution witnesses, Hightower remained consistent from his initial police interviews through his trial testimony and his PCRA testimony. (See Reply Brief 27-29.) Yet the jury never heard from the many other witnesses who would have corroborated Hightower's consistent account, and who would have further testified (in Singletary's case) that the fleeing man was the true shooter. [5]

The Commonwealth also ignores the main point about Arnold Howard's driver's license (or application), which police found on P. O. Faulkner's body. The fact that a third person's document was found on the officer's body, leading police to suspect that a third person had fled the scene, was critical Brady information, but was never known to the defense until the PCRA hearing. Instead, the defense was given Howard's false interview report which suggested that this document was found in William Cook's Volkswagen, conveying the false inference that the document had no connection to the shooting. (Com. Exh. 16; Tr. 8/9/95: 74-75.) The Commonwealth speculates that "Officer Faulkner decided to arrest Cook because Cook presented Howard's application instead of a valid driver's license of his own." (Sur-Response 20 n.12.) But when police found the document on the night of the shooting they drew a very different inference -- that a third person might have been present at the scene -- which is precisely why they picked up Howard for questioning. (Tr. 8/9/95: 6-7, 8/11/95: 166-67.) The fact that police pursued the theory that a third person was present, coupled with the numerous witnesses who saw someone running away, would have been powerful ammunition for the defense. See Kyles, 115 S. Ct. at 1572 ("If a police officer [found theory plausible], a juror would have, too."). But this important information was unknown to the defense until it came out at the PCRA hearing. [6]

The Commonwealth's repetitive arguments regarding the physical evidence are dealt with in Jamal's Reply Brief (at 36-38). As to the missing piece of the bullet, the record is clear. The medical examiner removed "a deformed lead projectile" and also "a smaller 10x3x2 mm piece of lead" from the slain officer's head wound, yet there is no record of the second lead fragment anywhere in the ballistic evidence. (Exh. D-26; Tr. 8/9/95: 151.) If this second bullet fragment -- documented by Dr. Hoyer -- is not missing, then where is it? [7]

II. Jamal's Trial Counsel Was Ineffective -- And He Admitted As Much During The 1982 Proceedings.

The Commonwealth asks why attorney Jackson "never revealed his supposed ineffectiveness until 1995." (Sur-Response 24.) The answer is that Jackson repeatedly admitted his incapacities in 1982, even before trial. At the first pre-trial hearing, Jackson admitted he did not know there was a second defendant in the case (William Cook), drawing an admonition from Judge Ribner: "well, all I can say to you is you'll have to spend a little more time on this case, check it out, before you get to a hearing in this matter." (Tr. 1/5/82: 66.) Four months later -- just five weeks before trial was to begin -- Jackson confessed that he was having trouble preparing and requested assistance of another counsel:

There is a great deal of work to be done, a great deal of information to be developed, and I have some reservation as to whether or not I can properly be prepared to go to trial within the next three weeks, or three to four weeks. And I will request additional counsel at this time. . . . Physically, I can only do so much. . . . And in Mr. Jamal's interest, this request is being made.
(Tr. 4/29/82: 7-9.)

Moreover, contrary to the Commonwealth's assertion (at 24), the record (including Jackson's own admissions at trial) shows that Jackson did not conduct a reasonable investigation. For example, at trial Jackson conceded that he had not interviewed key defense witness Veronica Jones (causing the court to remark that "he should have talked to her before") and that he had not subpoenaed witness Gary Wakshul (causing the court to remark that he had "goofed"). (Tr. 6/29/82: 100-01, 137; 7/1/82: 48.) Jackson told the court "I was forced to try and remember everything that everybody said and I couldn't do it." (Id.: 34.) The Commonwealth retorts that this is all irrelevant because Jackson was supposedly completely under the control of Jamal. (Sur-Response 24-25.) That argument has no basis, and was refuted by Jackson, who stated that he was in control of the defense except at those times when Jamal was acting pro se. (Tr. 7/28/95: 131-32.) Jackson's PCRA testimony was in accordance with the trial record, for Jackson had been ordered to represent Jamal to the best of his abilities, and Jackson promised he would "defend Mr. Jamal in the traditional manner of an attorney." (Tr. 6/18/82: 7-11, 6/19/82: 7-8.) Hence, Jackson's dereliction simply cannot be blamed on Jamal. [8]

With respect to Jackson's penalty phase performance, the Commonwealth makes an outlandish argument that all the mitigation witnesses Jamal presented at the PCRA hearing -- including a state representative and two professional journalists -- were incredible. [9] The Sur-Response asserts (at 28) that "[t]he PCRA testimony describing defendant as a Ghandi-like [sic] man of peace, if presented at trial, would have been rejected by the jury out of hand as a patent deception." [10] That argument is contrary even to the opinion of the PCRA court, which expressly found "credible" the late State Rep. Richardson's description of Jamal as "uniquely dedicated to the cause of peace." (Sept. 15, 1995 Order, FOF ; 94-95.) [11]

In yet another outright falsification, the Commonwealth asserts that "[t]he only specific defense claim of ineffective assistance in the penalty phase . . . is that Jackson failed to present additional character evidence." (Sur-Response, p. 25.) Yet in his main brief, Jamal complained that Jackson failed to make the proper First Amendment objection to the 1970 newspaper article, failed to object to the improper verdict form, and gave the jury the impression Jamal could be paroled if sentenced to life in prison. (Brief for Appellant 111.)

III. The First Amendment Forbids The Prosecution's Use Of Jamal's 1970 Political Associations And Slogans To Secure The Death Penalty in 1982, Even Under The Commonwealth's Last-Ditch Theory That This Evidence Showed "Motive."

In the death penalty phase, the Commonwealth was permitted to examine Jamal on a variety of political slogans he had espoused in a 1970 newspaper interview as a teenage member of the Black Panther Party. (See Brief for Appellant 113-14.) This evidence of Jamal's teenage political beliefs (indisputably protected by the First Amendment) was central to the prosecution's argument that Jamal deserved the death penalty. [12] Although previously the Commonwealth had argued that this evidence was admissible to "show" Jamal's supposed "bad" character, the Commonwealth now shifts its position and claims that the slogans "went directly to defendant's motive for the murder." (Sur-Response 30; original emphasis.)

The PCRA court ruled that the admission of Jamal's teenage political views was not error because they were "relevant to his claim of having a peaceful character." (Sept. 15, 1995 Order, COL ; 213.) In its answering brief, the Commonwealth repeated that the political views were "relevant to his claim of having a peaceful character." (Brief for Appellee 183.) In his reply brief, Jamal pointed out that this very argument was rejected in Dawson v. Delaware, 503 U.S. 159, 166-68 (1992) (abstract views cannot be used to establish character). (Reply Brief 52.) Now, because Dawson blocks the "bad character" argument, the Commonwealth dramatically changes position and asserts that Jamal's 1970 political views were somehow relevant to show "motive" for the shooting of a police officer.

First, there is no basis in the record to attribute any "motive" to Jamal's alleged teenage political views. The slogans in question were the following:

"Political power grows out of the barrel of a gun." (Tr. 7/3/82: 22.)

"All power to the people." (Id.: 23.)

"The Panther Party is an uncompromising party, it faces reality." (Id.)13

The first of these slogans is the only one which the Commonwealth even attempts to justify. Even then, the Commonwealth does not specify how this slogan -- a Mao-tse-Tung quotation widely used by the Black Panther Party -- allegedly provides a "motive" for the shooting of a police officer twelve years later. Presumably, the Commonwealth suggests that for twelve years Jamal advocated random attacks on police officers and himself harbored a desire to shoot a police officer. That interpretation is absurd on the face of the record. [14]

As the amicus curiae explain, "there is no suggestion in the article [or in the record] that Westly Cook or the Black Panther Party encouraged citizens to carry guns on the streets of Philadelphia, or to use them in any unlawful way." (Brief of Amicus Curiae American Civil Liberties Union, National Association for the Advancement of Colored People, and National Conference of Black Lawyers 28.) [15] The real meaning of the "barrel of a gun" quote was precisely the opposite -- to characterize the government's political repression of the Black Panther Party, i.e., the government's political power grew out of its armed repression of blacks and dissidents:

"Protest killings by police. . . . 'Since the murders [of Panther members by police],' says West Cook, Chapter Communications Secretary, `Black brothers and sisters and organizations which wouldn't commit themselves before are relating to us. Black people are facing the reality that the Black Panther Party has been facing: political power grows out of the barrel of a gun.' Murders a calculated design of genocide and a national plot to destroy the party leadership is what the Panthers and their supporters call a bloody two year history of police raids and shootouts. The Panthers say 28 party members have died in police gunfire during that period, two last month. . . . Genocide is coming to the forefront under the Nixon, Agnew and Mitchell regime, says West, and that's exactly what it is. The Panther Party is an uncompromising party. It faces reality." (Tr. 7/3/82: 25, 28-29.) [16]

At the penalty phase, Jamal further clarified that the quotation expressed criticism of historic governmental and military repression, drawing an historical analogy based on the conquest of the New World:

That was a quotation from Mao-tse-Tung of the Peoples Republic of China. It's very clear that political power grows out of the barrel of a gun or else America wouldn't be here today. It is America who has seized political power from the Indian race, not by God, not by Christianity, not by goodness, but by the barrel of a gun. . . . I believe that America has proved that quote to be true. (Id.: 22-23.)

The Commonwealth's present "motive" argument demonstrates the clear prejudice which flowed from the admission of the 1970 "barrel of a gun" slogan at the penalty phase. Viewed in its proper historic context the quoted slogan did not in any way provide a motive for the shooting of a police officer. Yet the prosecutor was able to wrench the slogan out of context and consciously sought to create exactly that false and prejudicial impression to the predominantly white jury in his penalty phase summation:

And maybe that was the siege all the way back then with political power, power growing out of the barrel of a gun. No matter who said it, when you do say it and when you feel it, and particularly in an area when you're talking about police or cops or shootings and so forth, even back then, this is not something that happened over night. (Id.: 68.)

Moreover, the Commonwealth advances no justification at all for the introduction of the other slogans -- "All power to the people" and "The Black Panther Party is an uncompromising party." The Commonwealth instead tries to evade responsibility for these quotes, claiming that these "broader political beliefs were not mentioned by the prosecution, but rather were introduced by defendant himself." (Sur-Response 30.) The record shows that this is just another Commonwealth falsehood, for it was clearly the prosecutor's questions that first injected the slogans and the Black Panther Party into the case:

Q. Mr. Jamal, let me ask you if you recall saying something sometime ago and perhaps it might ring a bell as to whether or not you are an executioner or endorse such actions. "Black brothers and sisters -- and organizations -- which wouldn't commit themselves before are relating to us black people that they are facing -- we are facing the reality that the Black Panther Party has been facing, which is -- " Now listen to this quote. You've often been quoted saying this: "Political power grows out of the barrel of a gun." Do you remember saying that, sir?

* * *

Q. Do you recall saying: "All power to the People"? Do you recall that?

* * *

Q. Do you recall saying that: "The Panther Party is an uncompromising party, it faces reality"? (Tr. 7/3/82: 21-23; emphasis added.)

It was only then, after the prosecutor had belabored these slogans and the Black Panther connection, that Jamal asked to read the entire article into the record to establish the true context of the quotations. (Id.: 23-24.) [17] Because Jamal's teenage views were irrelevant to his character and to the circumstances of the crime, the First Amendment dictates that his death sentence be overturned. [18]

IV. Contrary To The Commonwealth's Assertions, The PCRA Court's Efforts To Ambush The Defense Are Evident From The Record, And Were So Egregious As To Warrant An Emergency Continuance From This Court.

The essential and undeniable fact concerning the PCRA hearing is that Jamal was forced to present his PCRA witnesses on impossibly short notice, without any pre-hearing discovery or adequate opportunity to prepare -- notice so short that this Court granted an eight-day continuance on an emergency basis. Even then, the PCRA court routinely blocked the presentation of claims and evidence, going so far as to incarcerate a defense lawyer for merely trying to make an offer of proof. The PCRA court's bias then infected its findings.

The Commonwealth repeats its claims that the defense "delayed," but ignores the detailed discussion of the record in Jamal's Reply Brief. At the risk of repetition, Jamal explained how he actually sought to expedite the proceedings by setting a hearing date on his stay and recusal motions for the first week of July, but the Commonwealth requested additional time to respond. Then, at the July 12 hearing which ostensibly would address only the two procedural motions, the Commonwealth and the PCRA court insisted that Jamal should begin presenting his claims "immediately," without discovery or any time for preparation -- and despite Jamal's complaint that he had not even yet obtained the complete record of the 1982 proceedings. (Reply Brief 4-11.)

There is no contradiction between Jamal's efforts to expedite a hearing on the recusal and stay motions and his request for an orderly schedule for the evidentiary hearing. Jamal's only "delay" consisted of his insistence on a reasonable period of time to locate and subpoena witnesses. [19] As it was, Jamal served dozens of subpoenas and (despite the court's quashing of over 25 subpoenas and precluding any evidence on 3 claims) called over twenty PCRA witnesses in an evidentiary hearing that lasted over three weeks. Of course these subpoenas could not be issued nor the witnesses scheduled until a date for the evidentiary hearing was set, and it was utterly unreasonable for the PCRA court to expect Jamal to prepare and present this evidence on two days' notice. The ostensible need for an immediate hearing was the unstayed execution, which the prosecution and the PCRA court cynically manipulated in order to rush the schedule. As the PCRA court later admitted in granting the stay of execution, Jamal had an absolute right to appeal any post-conviction ruling to this Court, and to seek federal habeas relief, and "they are not going to be able to resolve that issue before August the 17th. . . . [T]he necessity of this order is obvious." (Tr. 8/7/95: 47, 57.) But Jamal's right to post-conviction review and the resulting need to stay the August 17 execution were "obvious" from day one, as Jamal had repeatedly argued to the PCRA court. The Commonwealth can provide no other legitimate justification for the PCRA court's trial-by-ambush approach. Moreover, this Court has already acknowledged that the PCRA court was unduly rushing the hearing, which is why this Court continued the PCRA hearing for eight days. (7/18/95 Order granting Jamal's emergency King's Bench petition.)

Seeking to deny that the PCRA court blocked Jamal's presentation of several claims, the Sur-Response devotes two full pages to an effort to justify the court's egregious arrest of a defense attorney who was trying to explain the relevance of two subpoenas which the court had quashed (because the court had not allowed the defense to address the issue beforehand). The Commonwealth insists that Ms. Wolkenstein's arrest and jailing were appropriate because she was "berating" and "scolding" the PCRA judge. (Sur-Response 11-12.) The record refutes any claim that Ms. Wolkenstein was "berating" or "scolding" the judge. Indeed, she could not even finish a sentence of her offer of proof because the trial court repeatedly interrupted her. (Tr. 8/2/95: 4-6.) Given that the defense could not even finish a sentence without suffering incarceration, there is great irony to the Commonwealth's comment that the defense "never said anything more" about the subpoenas. (Sur-Response 11.) Indeed, when Mr. Weinglass tried to explain the offer of proof Ms. Wolkenstein had been attempting, the court cut him off, making it clear that further argument would trigger similar sanctions. (Tr. 8/2/95: 6-7.) [20] Put simply, the court would not tolerate any offer of proof on this Eighth Amendment claim, and Ms. Wolkenstein was arrested for simply attempting to make such an offer. Accordingly, contrary to the Sur-Response (at 12), the defense was not "free to make whatever offer of proof she wished."

Disputing Judge Sabo's manifest allegiance to the Fraternal Order of Police ("FOP"), the Commonwealth denies that the judge (1) endorsed the carrying of firearms by off-duty FOP members who were in the courtroom audience, and (2) asserted that these off-duty officers (who openly proclaimed their hostility to Jamal) were there for the court's "protection." Yet the record is clear that on July 31, 1995, the defense protested that off-duty FOP members were carrying their weapons into the courtroom, intimidating Jamal's supporters and creating a dangerous situation. The Court responded that "I consider the police officers for my protection in this Courtroom. I will make the decision who can carry a gun in this Courtroom and who can't. . . . And I told you last week that the police officers are entitled to carry their gun in this Courtroom." (Tr. 7/31/95: 57-60.)

Finally, the Commonwealth asserts that Jamal has not made any showing of circumstances warranting post-conviction discovery in this capital case. (Sur-Response 13.) Yet the record is replete with post-conviction evidence of police and prosecution misconduct, some of it undisputed even by the Commonwealth. For example, the Commonwealth concedes that "Arnold Howard's driver's license application was found in the victim's pocket" -- a fact never known to the defense until the PCRA hearing. (Id. 20.) The Commonwealth admits that prosecution witness Robert Chobert was promised assistance in retaining his suspended driver's license -- which he needed because he made his living as a cabdriver, and because he had been driving a cab illegally with no license -- facts never known to the defense until the PCRA hearing. Moreover, two prostitutes (Veronica Jones and Pamela Jenkins) say police pressured them to identify Jamal as the shooter, and that prosecution witness Cynthia White was subjected to similar pressure. William Singletary -- indisputably a witness at the scene who was immediately questioned by Homicide detectives at the Roundhouse -- testified that police destroyed his authentic statement that Jamal did not shoot the officer and that the true shooter fled. Instead, the defense was given a false statement which Singletary signed under police threats, denying that he had seen the shooting. This litany of instances of police misconduct is plainly exceptional and warrants discovery of all police and prosecution files in this case.

V. The Commonwealth's New Claim That Jamal "Tried To Shoot" Arriving Officers Is Just Another Misrepresentation Of The Record.

Faced with pervasive and compelling evidence of police and prosecutorial misconduct, it is no wonder that the Commonwealth once again seeks to divert attention with its false assertion that Jamal "attempted to shoot the first police officer to arrive on the scene." (Sur-Response 3-5.) The Commonwealth quotes at length from testimony of P. O. Shoemaker, testimony Jamal had already discussed in his Reply Brief. Shoemaker tried to explain why he kicked Jamal in the face by claiming that Jamal's "hand started to motion to the left" where an unloaded gun lay nearby. (Reply Brief 3 n.3; Tr. 6/19/82: 135.) As Jamal pointed out in his Reply Brief, even taken at face value, Shoemaker's testimony simply cannot support an inference that Jamal "tried to shoot" P. O. Shoemaker or any other arriving officer. The fundamental point -- which the Commonwealth completely evades -- is that both Shoemaker and his partner, P. O. Forbes, admitted that they stepped past Jamal, and turned their backs on him, even though a gun lay nearby on the sidewalk. (Id.: 152-53.) This fact alone refutes any notion that either of these officers believed that Jamal had just "tried to shoot" them or felt that Jamal posed any physical threat whatsoever. [21]

VI. The Commonwealth's Request That This Court Change Its Waiver Practices In Capital Cases To Defeat Federal Habeas Corpus Review Is A Telling Sign Of The Philadelphia County Prosecutor's Determination To Win At All Costs.

Complaining that "the death penalty in Pennsylvania has become little more than a myth," the Commonwealth now asks this Court to overrule its relaxation of the waiver rule in capital cases. (Sur-Response 33 n.22.) The Commonwealth further asks the Court to tailor its ruling to defeat federal review, a blatant appeal to anti-federal bias. (Id. 33-34.)

In the Philadelphia District Attorney's jurisprudence, impatience to speed up the rate of executions far outweighs such time-honored principles as stare decisis, federalism, and the need for heightened scrutiny in capital cases. [22]

As a matter of policy, the need for heightened scrutiny is particularly acute in capital cases arising in Philadelphia County. Convictions based on perjury and manufactured evidence, including capital convictions, have been the subject of nearly daily news in Philadelphia, particularly with the revelations of police misconduct in the 39th District scandal, an episode now connected to the present case. Even more recently, the Philadelphia District Attorney has released a videotape showing thatits staff was expressly trained to strike qualified black jurors on account of their race, and to fabricate pretextual excuses to "justify" these improper jury challenges. [23]

Last year in the Ryder case, involving a third post-conviction petition arising from a 1974 murder conviction, the PCRA court found that the Commonwealth had withheld 82 witness statements, including 8 exculpatory statements. Com. v. Ryder, 31 Phila. 112 (1996). The fact that the Philadelphia District Attorney withheld these statements for over twenty years, until a court ordered their disclosure following a third post-conviction petition, is ample proof that heightened scrutiny and discovery is needed in Philadelphia capital cases.

In the present case, the jury did not hear from the many witnesses who saw someone flee the crime scene. The jury did not learn of the document found on the officer's body which led police to believe that someone fled. The jury did not hear from Singletary that the fleeing person was the shooter, and that police had torn up Singletary's accurate written statement. The jury did not hear from two prostitutes that police pressured them to falsely identify Jamal as the shooter. The jury did not hear that the officer guarding Jamal at the hospital reported that Jamal "made no comments." Had the jury heard all this evidence, there can be no doubt it would have affected the outcome. This was not an overwhelming prosecution case -- every element of the prosecution case was open to serious attack. And yet because of the governmental misconduct rampant throughout this case, compounded by the paltry performance of Jamal's stand-in counsel, an effective defense was not mounted.

The Commonwealth demands "finality in capital cases," as if a first post-conviction petition were somehow too much process. (Sur-Response 33 n.22.) But law is a means, and the "end" of law is not finality but justice, justice which "has been and ever will be pursued until it be obtained." J. Madison, Federalist paper no. 51. Justice demands that Jamal's claims be heard. With misconduct so pervasive, deliberate and prejudicial as that shown in this case, the only just "finality" would be outright dismissal of the charges. See Com. v. Smith, 532 Pa. 177, 615 A.2d 321 (1992).

CONCLUSION

Jamal's PCRA Petition should be granted in all respects, including outright dismissal of the charges. If not, Jamal is surely entitled to a new trial. At the very least, he is entitled to a full and fair PCRA hearing with full discovery of the prosecution files.

Respectfully submitted,

LEONARD I. WEINGLASS
6 West 20th St., Suite 10A
New York, New York 10010
(212) 807-8646

DANIEL R. WILLIAMS
Moore & Williams, LLP
740 Broadway, Suite 500
New York, New York 10003
(212) 353-9587

JONATHAN B. PIPER
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, Illinois 60606
(312) 876-8000

RACHEL H. WOLKENSTEIN
67 Wall Street, Suite 2411
New York, New York 10005
(212) 406-4252

STEVEN W. HAWKINS
National Conference of Black Lawyers
918 F Street, N.W.
Washington, DC 20004
(202) 347-2411

DAVID RUDOVSKY, Local Counsel
Bar No. 15168
Kairys, Rudovsky, Kalman & Epstein
924 Cherry Street, Suite 500
Philadelphia, Pennsylvania 19107
(215) 925-4400

Attorneys for Petitioner Mumia Abu-Jamal Dated: June 11, 1997

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R. A. P. 121:

Service by first class mail addressed as follows:

Hugh J. Burns, Jr., Esquire (counsel for District Attorney of Philadelphia County)
Assistant District Attorney
1421 Arch Street
Philadelphia, Pa. 19102
(215) 686-5728

Karl Baker, Esquire (counsel for amicus)
125 South Ninth Street, Suite 701
Philadelphia, Pa. 19105-1161
(215) 568-3190

Earl W. Trent, Esquire (counsel for amicus)
1231 North Broad Street
Philadelphia, Pa. 19122

Romona Washington, Esquire (counsel for amicus)
5019 Cedar Avenue
Philadelphia, Pa. 19143

Dated: June 10, 1997

Footnotes:

1 To avoid repetition, this brief focuses on the Sur-Response's misrepresentations and changes in position, and thus makes only passing reference to the many other central arguments of Jamal's earlier briefs which the Sur-Response simply does not address.

2 Denying that the so-called "confession" was concocted two months after the shooting, the Commonwealth asserts that Priscilla Durham reported the confession "the very next day," and that her written report was "produced at trial." But in reality, Durham had claimed her statement was handwritten, and she did not recognize the typed statement presented by the prosecution. (Tr. 6/24/82: 98.) The Commonwealth has never explained this discrepancy.

3 On June 2, 1997, the Court entered an Order granting Jamal's request for a remand with respect to Pamela Jenkins' testimony, based on her Verified Statement submitted with Jamal's Application for Relief in the Form of a Remand to Take Additional Testimony.

4 The Commonwealth questions Jamal's diligence in locating Jones (an argument even the PCRA court refused to accept). (Sur-Response 19 n.10.) The record is clear that Jamal's investigators searched for Jones for over three years, including primary focus in Philadelphia and New Jersey. (Tr. 10/1/96: 222-24, 231, 10/2/96: 28-29, 120, 149-51.) This search was difficult because Jones used some twelve names, six birth dates and nine social security numbers. (Tr. 10/2/96: 17, 30-31.) Moreover, because the Commonwealth tampered with this witness and failed to disclose its own misconduct, the Commonwealth cannot complain of the time it took for the defense to discover its own misconduct. E.g., Kirkpatrick v. Whitley, 992 F.2d 491, 496 (5th Cir. 1993). Moreover, the "diligence" issue would arise only if the Commonwealth claimed some resulting prejudice, which the Commonwealth has never alleged. 42 Pa. C. S. § 9543(b).

5 If the jury had heard the true accounts from the full panoply of witnesses who saw someone run (including Hightower, Singletary, Veronica Jones, and Kordansky) the prosecution would not have been able to get away with its facetious claim that Hightower had simply seen Jones, and vice versa. (Sur-Response 18.)

6 The Commonwealth denies that Robert Harkins testified he saw the gunman struggle with the officer (Sur-Response 18 n.9), but that testimony is plainly in the record. (Tr. 8/2/95: 209.) However, the PCRA court barred the defense from exploring this and other contradictions between Harkins' 1981 police interviews and his PCRA testimony. (Id.: 211.)

7 The Commonwealth asserts there is no evidence that any police officer involved in this case had any prior knowledge of Jamal. (Sur-Response 22.) Jamal attempted to present such evidence by (1) offering FBI files documenting Philadelphia police surveillance of Jamal and the Black Panther Party, (2) subpoenaing the police inspector, Alphonse Giordano, who was present at the scene after the shooting and who was earlier involved in political surveillance against the Black Panthers under Frank Rizzo, (3) subpoenaing Philadelphia police surveillance files regarding Jamal, and (4) presenting expert testimony concerning Philadelphia police surveillance of the Philadelphia Black Panther Party. The PCRA court barred all this evidence, and would not allow the FBI files to be included in the record for appellate review. (Tr. 7/18/95: 6, 8/7/95: 25-35, 55, 62, 8/10/95: 176, 8/11/95: 38-41.)

8 Jackson promised that if Jamal ordered him to do something he would not do otherwise, he would say so on the record. (Tr. 6/19/82: 8.) As Jamal explained in his Reply Brief, there was only one such instance, and that was when Jackson told the court that Jamal had ordered him to move to dismiss the charges on the grounds that murder was not adequately defined. (Tr. 7/1/82: 55, Tr. 7/28/95: 110.) Although the Commonwealth makes much of this singular instance, its very singularity demonstrates that during the remainder of the trial Jackson was not following Jamal's "orders" but was acting independently in the "traditional manner of an attorney." Indeed, it would have been impossible for Jackson to have followed Jamal's supposed "orders" throughout much of the trial, because Jamal frequently was not even present in court.

9 The Commonwealth suggestion that Jackson did not know of these mitigation witnesses is refuted by the record. Indeed, Jackson had already called State Rep. Richardson as a witness at the bail hearing. (Tr. 1/11/82: 54.) Similarly misplaced is the Commonwealth's citation to Com. v. Durst, 522 Pa. 2, 559 A.2d 504 (1989), for the proposition that counsel is not ineffective for failing to present evidence which is merely cumulative. (Sur-Response 26.) That misstates Durst, which rejected an ineffectiveness claim because the evidence at issue simply did not undermine the defendant's guilt and thus was not beneficial. The mitigation evidence at issue here, on the other hand, was plainly beneficial to the defense. It also was not cumulative, for the range of testimony available at the mitigation stage far exceeded the reputation testimony admissible during the guilt phase.

10 The Commonwealth's premise is that the jury would have returned a death sentence regardless of any mitigation evidence, based on Jamal's running controversy with the court. (Sur-Response 26-27.) That argument -- which tracks the prosecutor's penalty phase summation -- is spurious, and itself violates Jamal's Sixth Amendment rights, as Jamal argues in this appeal. (See Brief for Appellant 111-12.)

11 The PCRA court also accepted the testimony of journalist E. Steven Collins that Jamal was "an extraordinarily gifted radio journalist, comparing him to Charles Osgood." (Sept. 15, 1995 Order, FOF ; 100.) However, the court could not "fathom" how such testimony "would have benefited" Jamal because "learned success and skill as a radio journalist cannot mitigate the fact that he shot and killed a police officer from point-blank range and without provocation." (Sept. 15, 1995 Order, FOF ; 95, 102.) In short, in the PCRA court's mind, no mitigation evidence concerning Jamal's peaceful character and journalistic talents could weigh against the death sentence in this case. But that decision, of course, belonged to the jury, and the jury did not have the mitigation evidence it needed.

12 The impact of the 1970 Black Panther Party slogans in securing the death penalty cannot be underestimated. This is a case in which the jury returned after a period of deliberation on the issue of guilt, and asked for reinstruction on the definitions of manslaughter, third degree murder, and first degree murder. (Tr. 7/2/82: 52-54.)

13 The improper cross-examination and argument also highlighted Jamal's refusal to rise for the judge, and his disagreements with the court's rulings. (Tr. 7/3/82: 20, 32-33, 66-68.) (See Brief for Appellee, pp. 111-12; Reply Brief for Appellee, p. 55 n.64.) The Sur-Response does not even attempt to explain why Jamal's conflict with the judge was relevant at the penalty phase. Yet the Commonwealth vigorously argues that it was precisely that conflict which secured the death sentence. (See Sur-Response 28.)

14 Moreover, it is simply absurd to suggest that political slogans espoused as a teenager in 1970 go "directly" to establish "motive" for an event twelve years later.

15 Indeed, the constant FBI and the Philadelphia Police Department surveillance of Jamal did not disclose that he engaged in any criminal activity at all. (See Brief for Appellant 68.)

16 As the amicus curiae explain, the federal and police repression of the Black Panther Party is now a matter of public record. See Brief of Amicus Curiae American Civil Liberties Union, National Association for the Advancement of Colored People, and National Conference of Black Lawyers, pp. 17-19. See also "The FBI's Covert Action Program to Destroy the Black Panther Party," III Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1976), pp. 185-224. Ignoring the public record, the PCRA court blocked Jamal's efforts to present evidence that he was personally a target of this improper political surveillance and harassment by the FBI and Philadelphia police. (Tr. 8/7/95: 24-28, 55, 8/11/95: 40-41.)

17 The prosecutor raised the specter of the Black Panther Party as early as the first bail hearing, where he asked Jamal's character witness, State Sen. Milton Street, "did you know him in his late teens at all, or did you have any discussions with him when he was a member of the Black Panthers?" (Tr. 1/11/82: 49-50.) During the guilt phase of the trial, the prosecutor again repeatedly tried to ask Jamal's character witnesses about his earlier Black Panther Party views. (E.g., Tr. 6/30/82: 36-37, 7/1/82: 24-25.)

18 The Commonwealth erroneously asserts that Jamal characterizes the Black Panther slogan as improper "victim impact" evidence. (Sur-Response 30-31.) The challenged victim impact evidence consists not of the political slogans, but rather the officer's personnel history, including his commendations and lack of a disciplinary record, and the prosecutor's completely improper comments about his own mother's reaction to the shooting of a police officer. (Tr. 7/3/82: 5-6, 9, 64-65.) The Commonwealth makes no effort to justify this evidence and improper argument. (Sur-Response 32 n.21.)

19 To support its accusation of delay, the Commonwealth asserts that the defense "claimed it would take them five days just to xerox a case," but the transcript pages show that, on the contrary, defense counsel offered to xerox the case over the lunch break and provide it at one o'clock, which the court refused. (Tr. 7/12/95: 123-24.) Ultimately the court ordered the defense to submit xeroxed cases the following day, and to return for argument on Friday the 14th, which the defense agreed to do. (Id.: 136-38.)

20 The Commonwealth reports that Ms. Wolkenstein was "in custody for only a few hours," suggesting a distinctive view of the right to (and rights of) counsel. (Sur-Response 12; emphasis added.)

21 The allegation that Jamal "tried to shoot" arriving officers was not made by the prosecution at trial, or on appeal, or in the PCRA court. (Reply Brief 2.) Yet the Commonwealth's Sur-Response ignores this point, and refuses to explain why this claim was never made before. The answer is apparent -- the claim has no basis in the evidence. This false new claim is raised now simply as one more desperate effort to tar Jamal and to divert attention from the crippling weakness of the remaining prosecution evidence.

22 In a truly bizarre argument, the Commonwealth asserts that Jamal should be penalized for failing to raise his Brady and other new witness claims by attaching affidavits to his direct appeal briefs. (Sur-Response 34.) The Commonwealth asserts that Jamal could have raised these non-record issues on direct appeal, pointing to the fact that Jamal submitted an affidavit of Anthony Jackson concerning the race of jurors. This argument is simply absurd -- first, because Jamal did not have access to many of the witnesses subsequently presented by way of his PCRA petition, and, secondly, because this Court refused to consider even the Jackson affidavit, which simply clarified an issue which was already present on the face of the trial record. See Com. v. Jamal, 521 Pa. 188, 555 A.2d 846, 849-50 (1989).

23 See Application for Relief in the Form of a Remand to Present Additional Evidence and Take Discovery Regarding Police and Prosecution Misconduct, with attached Affirmation of Pamela Jenkins; and Supplemental Application for Relief in the Form of a Remand.

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