Supplemental Brief Filed by Mumia Abu-Jamal

Refuse and
Resist!

SUPPLEMENTAL STATEMENT OF JURISDICTION

See Statement of Jurisdiction in the Brief for Appellant. The matter was remanded for an evidentiary hearing by the Court's May 30, 1997 Order, and the Court retained jurisdiction.

SUPPLEMENTAL ORDER IN QUESTION

This Supplemental Brief addresses the Opinion below dated July 24, 1997, a copy of which is attached.

SUPPLEMENTAL STATEMENT OF THE QUESTIONS INVOLVED

This Supplemental Brief bears on Questions 1 through 8 addressed in the Brief for Appellant, with primary bearing on Questions 1 and 2 (fairness of hearing and denial of discovery) and Question 4 (Commonwealth manipulation of witnesses). In addition, this Brief presents the following supplemental questions:

1. Did the bias and hostility of the PCRA court rise to an even higher level at this remand hearing when the court quashed all Jamal's subpoenas, denied all discovery, and precluded extensive defense evidence germane to the issues on remand? (Not addressed in Opinion.)

2. Did Jamal present and proffer sufficient evidence of undisclosed police misconduct to warrant PCRA relief or at least discovery? (Denied, Op. passim.)

3. Did the PCRA court erroneously conclude that Jamal would not be entitled to PCRA relief if Pamela Jenkins' account of police misconduct is true? (Denied, Op. 9, 18.)

4. Are the PCRA court's credibility determinations unreasonable, particularly because the court precluded the defense from presenting evidence on these issues? (Denied, Op. passim.)

5. Did the PCRA court further demonstrate its bias in its false and distorted recitation of the trial evidence? (Denied, Op. passim.)

SUPPLEMENTAL STATEMENT OF THE CASE

1. Jamal's Remand Application. On March 10, 1997, Jamal filed an Application seeking a remand to present evidence and take discovery based on the testimony of Pamela Jenkins. Jenkins, a former prostitute and Philadelphia police informant, was an instrumental federal witness and informant in the 39th District police corruption probe. Jamal's application included Jenkins' verified statement that in late 1981 police pressured her to falsely identify Jamal as the shooter in this case -- despite the fact that she was not present at the shooting. (Application ¶ 3.) Jenkins further stated that prosecution witness Cynthia White was a police informer, whose testimony was secured through improper police pressure. (Id. ¶ 4.) Jamal also offered to show that Jenkins' account of police intimidation of prostitutes fits the pattern of police/prostitution activities in Philadelphia's Center City area in the early 1980's. (Id. ¶ 5.) Jenkins also stated that police told her that police officers were present at the scene of the shooting. (Id. ¶ 3 n. 1.) Based on these facts, Jamal requested discovery of the Commonwealth files in this case. (Id. ¶ 21.) On May 30, 1997, this Court granted a remand "for the limited purpose of taking additional testimony with respect to Pamela Jenkins." (5/30/97 Order.) [1]

2. The Course Of The Remand Hearing. The remand hearing began June 26, 1997. In a June 9 letter, the defense had advised the court that the hearing would likely last several days. Jamal subpoenaed numerous witnesses and documents to corroborate Jenkins's testimony. Before the hearing, Jamal filed a 20-page pre-hearing memorandum with detailed proffers regarding the subpoenaed evidence. Yet when the hearing opened, the PCRA court insisted that Jenkins was the only witness who would be allowed to testify. The court peremptorily quashed all Jamal's subpoenas, and precluded Jamal from presenting any evidence to corroborate Jenkins' testimony. The court succinctly summarized its ruling: "I don't care who you subpoenaed. They are quashed. I am here only for Pamela Jenkins." (Tr. 6/26/97: 7; emphasis added.) [2] The court declared that it had not even reviewed the subpoenas or Jamal's submissions: "They are quashed. I don't even know what subpoenas you issued." (Tr. 6/26/97: 10.) The court also stated that any disclosure of "Brady material" was "denied." (Id.: 18.)

After Jenkins testified, the court once again refused to allow Jamal to present any corroborating witnesses. Although the defense alerted the court that it had subpoenaed several officers named by Jenkins, as well as court records and witnesses concerning the broader theme of police/prostitute misconduct in the Center City area in the early 1980's, the court barred all this evidence. (Id.: 131-34.)

Yet despite quashing all Jamal's subpoenas and barring any further defense witnesses, the court then allowed the prosecution to call five witnesses. (Id: 132-34.) Once the prosecution rested, the court permitted Jamal to call certain witnesses the prosecution agreed the defense could call -- but the witnesses the prosecution agreed upon were all police witnesses friendly to the prosecution. The court still precluded Jamal from presenting any non-police witnesses, and barred all defense evidence on the prosecution claim that Cynthia White had died in 1992 (contrary to Jenkins' testimony that she saw White in 1997).

Although it had precluded any defense rebuttal to the Cynthia White "death" claim, and despite its repeated assertion that a Camden "death certificate" for "Mildred Saunders" was "conclusive" proof of White's death, the court "reopened" the hearing on July 1, 1997 so the prosecution could try to "verify" White's "death" a second time. [3] However, this second effort failed because the prosecution's exhibits showed that the woman who died in New Jersey had different fingerprints from Cynthia White.

3. Pamela Jenkins' Testimony. Jenkins' testimony confirmed the facts sworn to in her verified statement. In December 1981, Jenkins was 16 years old. (Tr. 6/26/97: 39, 71.) At that time, Jenkins knew a prostitute named Cynthia White, or "Lucky." Jenkins knew that White was a police informant, who also performed acts of prostitution ("tricking") for police officers. (Id.: 47, 55-57.) Jenkins had discussions with White shortly after the Faulkner shooting in which White stated that "she was scared" and that "she was in fear for her life from the police." (Id.: 48.) Shortly after this, White disappeared. (Id.)

Jenkins testified that in December 1981 she was officer Thomas Ryan's lover and paid informant. (Id.: 40.) By December 1981 Jenkins had known Ryan for a period of "months" or "a year or so," but she could not be precise about the timing. (Id.: 40, 80-81, 127.) They had met earlier when Ryan, who was a uniformed officer who "was picking people up that was truan[ts]," stopped Jenkins for truancy. (Id.: 75, 127.)

After the December 9 shooting, Thomas Ryan took Jenkins downtown to meet Central Division Detective Richard Ryan. The two Ryans interviewed her for about three hours. Although Jenkins was not present at the shooting, the two Ryans pressured her to say she had seen the shooting and that Jamal was the shooter. Jenkins felt they were trying to get her to lie. (Id.: 42-44.) Thomas Ryan also told her that Richard Ryan and officers named "Boston," "O'Neil," and "Sarge" were present at the scene of the shooting. (Id.: 46, 130.) Later Thomas Ryan paid Jenkins $150 to try to find White. (Id.: 49.)

Several years later, Ryan introduced Jenkins to another officer, John ("Jack") Baird. In 1994, Jenkins gave false testimony for Baird at an arbitration hearing. Later Jenkins began cooperating with federal authorities investigating police corruption in Philadelphia's 39th District. (Id.: 62.) She began cooperating with the federal investigators, returned to the arbitration hearing and testified truthfully, and wore a wire on Baird. (Id.: 62-63, 65.) Later the Department of Justice presented Jenkins as a witness to a federal grand jury. (Id.: 63.) After Jenkins testified to the grand jury, both Baird and Thomas Ryan were indicted and pled guilty to civil rights violations. (Id.: 64.)

In January 1997, Jamal's counsel interviewed Jenkins, who was in jail in New Jersey, and she revealed what she knew about this case. (Id.: 98-99.) When she was released from jail, Jenkins volunteered to help the defense locate Cynthia White. (Id.: 53.) In early March, 1997, Jenkins found White in a Philadelphia crack house. (Id.: 50, 104-05.) When White saw Jenkins, White ran out of the house. (Id.: 51.) Jenkins saw White get into a pickup truck in which Thomas Ryan and Richard Ryan were sitting. (Id.: 51-52.)

In March 1997 Jenkins contacted federal law enforcement authorities about her involvement with an art theft. Jenkins cooperated with federal and Philadelphia authorities to secure the return of the stolen painting. (Id.: 57.) At that time, law enforcement told Jenkins she would not be charged with any crime. (Id.: 58.) Yet three months later, after Jamal filed Jenkins' verified statement with this Court, on June 5 (just days after this Court ordered the remand) Philadelphia police arrested her on felony charges relating to the art theft. (Id.: 58-59.) While being processed for this arrest, Jenkins saw Richard Ryan, who threatened her, saying: "you finally graduated to the big league, we gonna sits that ass down." (Id.: 60-61.) Ryan also told her to "keep my name . . . off the news." (Id.)

4. The Precluded Defense Evidence. Despite Jenkins' testimony that White was a police informant who "tricked" for police, the court precluded all evidence concerning the interrelationship of police and prostitution in the Center City area in the early 1980's, including evidence specifically establishing Cynthia White's links to corrupt 6th District officers. (630/97: 140-41.) As explained in Jamal's remand application (¶ 5), Jenkins' testimony fit a broader pattern of police misconduct in Philadelphia's center city districts. A federal investigation in the early 1980's revealed a widespread conspiracy involving illicit police involvement with prostitution and other vice rings, reaching from the Deputy Commissioner down to the beat officers of the Central Division (6th and 9th Districts). A principal conspirator was Inspector John DeBenedetto, who ran a $350,000 graft operation as commander of the Central Division in 1981 and 1982. The federal investigation began in mid-1981 with an investigation of police extortion of prostitution rings in the 6th District, where the shooting in this case took place and where White worked as a prostitute. The investigation demonstrated that Center City police virtually ran prostitution in downtown Philadelphia in 1980 and 1981. In view of the relation of Center City police to street prostitution at that time, Jenkins' testimony that White was a police informant who "tricked" for police officers is strong evidence that White was under the control of police even before the December 9, 1981 shooting. Further confirming that link, Jamal sought to present evidence that two convicted 6th District officers, Richard Herron and Joseph Gioffre had arrested White six times in 1980 and 1981. (Tr. 6/30/97: 140-41; Petitioner's Supplemental Offers of Proof 14-15.) Yet the court barred all evidence of this pattern of police involvement with prostitutes, or of White's specific links to two convicted officers.[4]

The court also barred an eyewitness, Marcus Cannon, who was on 13th Street near Locust during the December 9, 1981 shooting. Cannon would have testified that he saw a black male flee the scene, and that he also saw two white men near the scene who both pulled guns and ran toward the shooting -- apparent plainclothes officers. (Tr. 6/30/97: 123-27; Petitioner's Supplemental Offers of Proof, Exh. 5.) Cannon thus corroborated Jenkins' testimony that police officers reportedly were present at the time of the shooting.

The court not only blocked this important evidence, but also prevented Jamal from obtaining necessary documentary evidence. The court refused to order the prosecution to produce FBI interviews of Jenkins and Thomas Ryan, which the defense contended corroborated Jenkins' account that she met Ryan before December 1981. (Tr. 6/30/97: 3-5; Petitioner's Supplemental Offers of Proof, Exh. 7.) The court also quashed a subpoena for court records showing Richard Ryan's links to the Jamal case. (Id. 15-16; Tr. 6/26/97: 22-28.) As discussed below, the court also precluded any defense evidence to refute the claim that Cynthia White died in 1992.

5. The "Permitted" Defense Evidence. The court did "permit" Jamal to call witnesses agreed upon by the prosecution, all of whom were hostile former police officers whose testimony the prosecution had prepared. [5] Jamal called Thomas Ryan, who displayed his bias by wearing a button on the witness stand commemorating P. O. Faulkner. (Tr. 6/30/97: 10-11.) [6] Ryan denied any involvement with the investigation of the Faulkner shooting, and also denied that he knew Jenkins at that time. (Id.: 52.) However, Ryan simply could not tell a straight story about when he met Jenkins. Although Ryan tried to claim he first met her during a truancy stop in June 1982, he was impeached by his testimony in a 1988 trial, Commonwealth v. Raymond Carter. There Ryan testified that he met Jenkins in 1981, consistent with her own account:

Question: How long had you known Pamela Jenkins as of September 1986?
Answer: Five years. (Tr. 6/26/97: 232-33; Tr. 6/30/97: 26.) [7]

Ryan conceded that he was a uniformed correctional officer for "six months prior to August of 1981," and wore a badge during that period. (Id.: 31, 59.) He also admitted that he used Jenkins as a paid informant during the 1980's, that she was a prostitute during that period, and that he became sexually involved with her (although Ryan contended it was a one-night stand). (Tr. 6/26/97: 243, 245-46, 248, 257, 6/30/97: 38.) [8] Consistent with Jenkins' testimony, Ryan also confirmed that he would introduce her to a detective when she had useful information in a murder case (and that he did so in the Carter case, another homicide case outside Ryan's normal jurisdiction). (Tr. 6/26/97: 249.) Ryan also conceded he knew Det. Richard Ryan, but claimed they did not meet until 1988. (Id.: 255-56.)

Jamal also was allowed to call retired P. O. Lawrence Boston, one of the officers Jenkins said she heard was present at the scene of the shooting. Boston confirmed he was an officer in the 6th District (in which the shooting took place) and knew Faulkner "very well." (Tr. 6/30/97: 75.) Boston could not recall the hours of his assignment without seeing his employment history, yet the court quashed Jamal's subpoena for that very document. (Id.: 64-69, 70-71, 78.) When asked where he was at the time of the Faulkner shooting, Boston repeatedly refused to give a direct answer, but coyly repeated that he "should have been" home in bed. (Id.: 76; emphasis added.) Boston also admitted that he knew Cynthia White from walking a beat in the 6th District, and had seen her around Christmas 1981. (Id.: 76-77, 80.) Boston said that after the Faulkner shooting the "the word on the street" was that White was living in a condominium near a golf course in Pine Hill, New Jersey. (Id.: 80-81.) Boston also confirmed that he picked up this kind of information from street prostitutes. (Id.: 82.) Boston further testified that plainclothes officers worked the 13th and Locust Street area at night in December 1981. (Id.: 93.)

Finally, Jamal was permitted to call Douglas Culbreth, a Homicide Detective who worked on this case in 1981 and who "escorted" White from court during the 1982 trial. (Id.: 97, 107.) Culbreth confirmed that in 1987, while still in Homicide, he received a call from White, who was in jail on serious felony armed robbery charges and wanted assistance at her bail hearing. (Id.: 97-98.) According to Culbreth, "she called me because she knew I would do it." (Id.: 114.) Culbreth went to the bail hearing and told the judge that White was a witness in this case. (Id.: 99.) Due to Culbreth's intervention, and despite White's prior record of numerous arrests and failures to appear, the judge allowed White to sign her own bond. (Def. Exh. 6, pp. 29-33.) [9]

6. The Prosecution Evidence. The prosecution presented documentary evidence which it claimed refuted Jenkins' testimony that she had seen Cynthia White in 1997 and that she had met Thomas Ryan before December 1981.

The Alleged "Death" Of Cynthia White. The prosecution sought to show that White was a woman named "Mildred Saunders" or "Cynthia Williams" who died in Camden, New Jersey in 1992. Homicide Detective Raleigh Witcher presented a Philadelphia police printout of Federal Bureau of Investigation ("FBI") computer data, along with a death certificate for "Cynthia Williams," aka "Mildred Saunders." Witcher asserted that the FBI printout showed that the Camden decedent was actually Cynthia White, the witness in this case, and that White was "deceased." (Tr. 6/26/97: 143, 178.) [10] Notably, in their first attempt to "verify" White's "death," the prosecution did not claim there was a fingerprint match, instead claiming White's identity was shown by matching "aliases" and social security numbers. (Id.: 145.) [11] However, when the defense raised the fingerprint issue on cross-examination, Witcher claimed that the FBI report "authenticated" that the death of Cynthia White was verified by a fingerprint "match." (Id.: 178-79.) Despite the claimed FBI fingerprint "match," the prosecution and Witcher did not bring the alleged fingerprint cards from either Philadelphia, the FBI or Camden to court. (Id: 154.) The reason, as it later became clear, was that there really was no "match" between White's prints and those of the New Jersey decedent -- a fact the prosecution should have known.

Contradicting the claim that White had been dead all along, Witcher admitted that the prosecution was actively searching for her nationally throughout the period from 1995 to 1997. (Id: 149, 164.) Witcher personally helped search "records both local and out of the locale. We did not locate her." (Id: 151.) Witcher admitted that the prosecution team had access to the FBI database while they were searching for White (Id: 177, 7/1/97: 84), and obviously prosecutors would not have continued that search if they believed the New Jersey death report was accurate and that the Camden deceased was in fact Cynthia White. [12]

Despite the claimed "conclusive" proof of White's death, and the preclusion of Jamal's evidence to refute this claim, the court later reopened the hearing, over objection, to allow the prosecution yet another attempt to "verify" the "death" of "Cynthia White." The prosecution called two New Jersey law enforcement officers who presented more records concerning the Camden death. (Commonwealth Exhibit 8.) Yet these documents refuted any claim that the New Jersey woman was the Philadelphia witness Cynthia White, because the Philadelphia/FBI fingerprint codes for the witness Cynthia White were demonstrably different from those of the dead New Jersey woman. As Witcher testified (Tr. 6/26/97: 155), Cynthia White's fingerprint identifiers, as reflected in Philadelphia records, were shown on Commonwealth Exhibit 2 (the Philadelphia/FBI computer printout):

PM 11 12 CO 16 DO 08 13 PI 18

Yet when the Camden files were finally produced several days later, the fingerprint codes from the decedent did not match Cynthia White's codes (Com. Exh. 8, Camden ID card):

PM 13 12 17 16 PO 1813 13 CI 20

Comparing these identifiers side by side shows that fully six out of ten fingers (in bold) have entirely different fingerprint classifications, precluding any possibility of a fingerprint "match." Indeed, a prosecution witness, Sgt. Ronald Morgan of the Camden County Prosecutor's Office, conceded that the fingerprint codes on the Philadelphia records were different from the codes for the New Jersey woman as shown on Camden records:

Q: Now look at Commonwealth 2. And look at the fourth page, the upper, left-hand side. Is there a fingerprint series of numbers? . . .
A: Yes, sir.
Q: Now, do those numbers correspond with the numbers that you brought us today in Commonwealth 8?
A: No, sir, they are different. (Id.: 49; see also 50-51.)

Sgt. Elizabeth Welch, a New Jersey State Police recordkeeper, confirmed that complete FBI reports on "Cynthia White" would caution that the New Jersey death report "has not been confirmed by fingerprint comparison." (Id.: 76; emphasis added.) [14] Welch also testified that in identifying the Camden woman, only New Jersey fingerprints had been checked, that those New Jersey records have been purged, and that the FBI had made no interstate comparison of the New Jersey prints, contradicting Witcher's claim that the FBI had "authenticated" White's death by a fingerprint match. (Id.: 70, 72, 77.) As Welch testified, "fingerprints are the one true identifier." (Id.: 63.) Hence, given that the fingerprint codes for the New Jersey woman do not match White's Philadelphia fingerprint codes, there can be no "confirmation" that White is dead. [15]

The court ignored these facts, and precluded Jamal from presenting his own evidence to refute the claim that White had died. Although the court told the defense to "go out and investigate" the alleged death and to "call the FBI" about its computer printout, when the defense offered to present its investigator to testify on these very issues, the court would not hear the evidence. (Tr. 6/27/97: 153, 174, 6/30/97: 133-35.) Jamal also sought to show that prosecutors had continued actively searching for White from 1995 to 1997 despite the purported FBI information that she was "deceased," demonstrating that the prosecution knew that the New Jersey report was false and that she was not dead. (Tr. 6/30/97: 127-31.) Jamal also proffered to show that numerous people had identified pictures of White as a person living in Philadelphia in 1997. (Id.: 131-34.) [16] Jamal also presented the affidavit of Ruth Ray, the alleged "mother" of "Mildred Saunders," according to the Camden death certificate. (Id.: 133.) Ray would have testified that she was not the "mother" of the Camden deceased and that she had never identified the body. (Petitioner's Supplemental Offers of Proof, Exh. 3.) [17] Finally, Jamal requested the Philadelphia and New Jersey fingerprint cards for Cynthia White. (Tr. 6/30/97: 143.) The court again denied all these requests. (Id.: 134.)

Jenkins' Relationship With Thomas Ryan. Jenkins testified that she first met Thomas Ryan several months to a year before the December 1981 shooting. (Tr. 6/26/97: 80.) The prosecution claimed this was impossible based on documents which supposedly showed that Jenkins met Ryan in June 1982 -- seven months after the shooting (but during the trial). In reality, the documents did not disprove Jenkins' essential claim that she knew Ryan before December 1981. Moreover, the prosecution did not show any of these documents to Jenkins herself to provide her an opportunity to explain them. [18]

The prosecution claimed that Ryan could not have met Jenkins earlier because he did not graduate from the Police Academy until December 21, 1981. Yet the very exhibits the prosecution presented showed that Ryan had been a badged, uniformed correctional officer and then a Police Academy trainee for several months during 1981. (Tr. 6/26/97: 191, 6/30/97: 31-32.) The prosecution also claimed that Jenkins had not attended Simon Gratz High School until January 1982, contradicting Jenkins' recollection that she attended Gratz in 1981. However, Jenkins testified that immediately before Gratz she attended Gillespie Middle School, right next door to Gratz at 17th & Pike, and that she lived a few blocks away on Sydenham. (Tr. 6/26/97: 39, 73.) Moreover, the school records showed that Jenkins was a "runaway" during several months in 1981, and a prosecution witness admitted that runaways would be stopped as truants. (Id.: 185, 210.) Hence, contrary to the prosecution claims, their exhibits did not refute Jenkins' testimony that she met Ryan in mid-1981 when he picked her up in her neighborhood.

7. The PCRA Court's Opinion. On July 24, 1997, the PCRA court issued an Order denying Jamal's claims for relief. The court held that because Jenkins was "a prostitute who had no direct observation of or connection to the crime scene," and because "she in-fact never testified against [Jamal] at trial, . . . no prejudice even theoretically could have ensued." (7/24/97 Op. 9.) The court thus found that "even setting aside issues of credibility," no relief was warranted. (Id. 18.) The court further found that Jenkins' testimony was incredible because she claimed to have seen Cynthia White in 1997 and White was "conclusively" proven to have died in 1992. (Id. 14.) Finally, the court found that Jenkins' account of her relationship with Thomas Ryan was refuted. (Id. 13.)

SUMMARY OF ARGUMENT

The PCRA proceedings reached a new level of unfairness as the court openly colluded with the prosecution to block Jamal from presenting evidence to support his claims of police misconduct. The court quashed all Jamal's subpoenas, stating "I don't care who you subpoenaed." The court at first refused to let Jamal present any witness other than Jenkins, but then permitted the prosecution to call several witnesses to purportedly "rebut" Jenkins. Then the court permitted Jamal to call a few witnesses, but only hostile police witnesses agreed upon by the prosecution. The court still barred many other witnesses Jamal offered to corroborate Jenkins and refute the prosecution's claimed "rebuttal."

Despite the court's open collusion with the prosecution, relegating the defense to the role of objecting bystanders, Jamal was able to present further proof that Cynthia White was a police informant whom police coerced to falsely identify Jamal as the shooter -- important Brady material never disclosed to the defense. Jamal's evidence also raised much broader issues of police misconduct, which the court refused to permit the defense to explore. The evidence presented and proffered by Jamal shows the need for full discovery of the Commonwealth's files.

While the court asserts Cynthia White supposedly is a "Cynthia Williams" who died in 1992 in Camden (contrary to Jenkins testimony that she saw White earlier this year), the prosecution's own exhibits show that the fingerprint codes for the Camden decedent are different from White's. Similarly, the prosecution failed in its attempts to show that it was "impossible" for Jenkins to have met Thomas Ryan prior to December 1981.

ARGUMENT

I. THE REMAND HEARING AGAIN DEMONSTRATED THE PCRA COURT'S IMPLACABLE BIAS DEPRIVING JAMAL OF A FULL AND FAIR HEARING.

With each hearing in this matter, the PCRA court has ever more openly colluded with the prosecution to deny Jamal a fair hearing. At the Jenkins hearing, facing defense proffers to link Cynthia White to 6th District police corruption, and facing a witness who had herself been a prostitute informant for corrupt police officers and then a government informant in the 39th District probe, the court and prosecution stretched to a new level of unfairness to block Jamal from developing his claims. The court once again employed a strategy of "trial by ambush," quashing all defense subpoenas, denying discovery and Brady material, and using the fact that evidence had been blocked to make fact findings against Jamal. See Smith v. Freeman, 892 F.2d 331 (3d Cir. 1989) (state post-conviction hearing unfair if court prevents development of evidence).

This remand hearing lacked even the pretense of an adversarial proceeding. There was no semblance of a level playing field. The relevant documentary evidence was exclusively in the prosecution's control. Jamal was deprived of any means to elicit this information through discovery or subpoena. Recently, in Bracy v. Gramley, 117 S.Ct. 1793, 65 U. S. L. W. 4435 (1997), the United States Supreme Court unanimously confirmed that a defendant is entitled to post-conviction discovery if he presents "specific allegations" of official misconduct. Id. at 4438. See also Rhoden v. Rowland, 10 F.3d 1457 (9th Cir. 1993) (state court deprives defendant of fair hearing by depriving defendant of post-trial discovery). Notably, Bracy granted discovery on the basis of "allegations" which were "only a theory" and "not supported by any solid evidence." Id.19

Without the discovery contemplated in Bracy (or even the ability to subpoena relevant evidence), a post-conviction petitioner simply cannot obtain a fair hearing because there is not a level playing field. [20] The prosecution, as government agents, has virtually unlimited access to documents. Because the defense had no ability to subpoena these materials, the prosecution was able to pick and choose, presenting only those documents it deemed favorable, and withholding the rest, without Jamal having any ability to subject the documents to an adversarial test. For example, the prosecution team has access to FBI interstate computer records, information unaccessible to the defense. Federal authorities also provided the prosecution copies of the FBI interview statements of Jenkins and Ryan. The defense contended that those statements corroborate Jenkins, but the defense had no ability to obtain these same documents. (Tr. 6/30/97: 3-5.) Similarly, when the prosecution sought official files for the Camden death, Camden County authorities suspended their normal procedures and produced the documents (and witnesses) overnight. (Tr. 7/1/97: 38-40.) Yet when defense investigators sought access to the same files, they were told it would not be possible to gain access without filing a civil suit in New Jersey. (Id.: 5.) When Jamal subpoenaed work records for police witnesses, his subpoenas were quashed. Yet the prosecution was permitted to present some of these very same documents as exhibits -- without Jamal having the opportunity to examine the rest of the file. Without equal access to the documents -- with a complete bar on discovery and the subpoena power -- Jamal's ability to challenge the prosecution claims was unfairly hampered. See Commonwealth v. Ulen, 539 Pa. 51, 55, 650 A.2d 416, 417-18 (1994) ("as a matter of due process, it is error to fail to provide evidence that will be used to impeach the credibility of defense witnesses").

This disparity was graphically revealed in the case of the alleged Camden "death," where the prosecution was shown to have presented false information to the court. Initially the prosecution presented a partial FBI computer printout and a partial set of pages from the Camden files, without presenting the Camden fingerprint data. The defense asserted that the complete FBI printout would establish that the alleged "death" was "not confirmed by fingerprints" to be Cynthia White. (Tr. 6/26/97: 143.) Jamal also demanded access to the actual fingerprint cards. As more documents came to the fore, Jamal's claims proved true -- there was no match between the Philadelphia fingerprints and the Camden prints. New Jersey witnesses confirmed that the full FBI printout states that the Camden death was "not supported by fingerprint comparison." (Tr. 7/1/97: 32-35.) It is no wonder that the prosecution refused to produce the full Philadelphia FBI printout, or actual fingerprint cards from any jurisdiction.

The denial of discovery was all the more improper because much of the evidence at issue was obvious Brady material. For example, the defense sought discovery of prosecution files pertaining to Cynthia White, based on Jenkins' testimony that White was a police informant and on the other widespread evidence of White's illicit ties to police. The defense sought reports of plainclothes officers who were reportedly present at the scene in a position to witness the shooting. The defense also sought information on Central Division detective Richard Ryan's connection to this case, as shown by his arrest of Kenneth Freeman in February 1982. The court responded that the requests for "Brady material" were "denied," revealing a profound misunderstanding of the prosecution's clear on-going obligation to disclose such information. (Tr. 6/26/97: 18.)

As in prior hearings, the central strategy of the PCRA court was "to block Jamal's proffer of evidence and then to cite the resulting absence of evidence as proof of Jamal's inability to prove his constitutional claims." (Br. for Appellant 22; see also Reply Br. for Appellant 11-15.) Although the court completely precluded Jamal evidence regarding the alleged "death" of Cynthia White, the court used the death certificate as "conclusive" proof of White's death. (7/24/97 Op. 14.)

As part of the trial-by-ambush strategy, the court only allowed Jamal to call witnesses "acceptable" to the prosecution -- i.e., police officers hostile to Jamal, whom the prosecution team had generally prepared beforehand. In the case of retired 6th District officer Lawrence Boston, the prosecution coaching was ludicrously obvious. Initially, Boston testified no less than three times that Cynthia White was nicknamed "Lucky." (Tr. 6/30/97: 84-86.) That truthful testimony was not to the prosecution's liking, because the prosecution has falsely asserted that "Cynthia White" and "Lucky" are two different people, in order to discredit the testimony of Veronica Jones. [21] So the prosecution "reminded" Boston of his earlier preparations with the prosecution detective, leading the officer to suddenly reverse his testimony and say that "Lucky" was not Cynthia White but a transvestite. (Id.: 86-87.)

When the defense is denied any ability to obtain relevant documents, subpoena witnesses, or present evidence other than hostile witnesses prepared by its adversary, the hearing simply cannot be called a fair adversarial proceeding. The fact that such a hearing could even occur is a testament to the bias of the court below, a bias which infected every aspect of the hearing, and which requires further proceedings before a different judge.

II. JENKINS' TESTIMONY, AND THE OTHER TESTIMONY PRESENTED AND PROFFERED AT THE HEARING, ESTABLISHES THE NEED FOR PCRA RELIEF, OR AT LEAST DISCOVERY OF THE COMMONWEALTH FILES.

Despite the court's efforts to shut down Jamal's presentation, the limited testimony permitted, as well as the abundant evidence proffered but blocked, demonstrates that rampant police misconduct permeates this case. Such conscious governmental misconduct warrants a new trial, if not outright dismissal of the charges. Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992). At a minimum, Jamal has presented sufficiently specific evidence and allegations of misconduct to warrant discovery of the Commonwealth files on this case. Bracy, supra, 65 U. S. L. W. 4435. The evidence presented and proffered demonstrates misconduct on two levels. There is Jenkins' testimony that Cynthia White was a police informant, and widespread evidence that White gave false identification testimony due to improper police pressure. There is also broader evidence of police misconduct warranting further discovery, including the presence of police on the scene during the shooting -- a fact never before disclosed to the defense.

A. Jamal Presented Evidence That Cynthia White Was A Police Informant -- Information Never Before Known To The Defense -- And That White Was Coaxed And Coerced To Give False Testimony Against Him. Jenkins testified that she knew Cynthia White, or "Lucky," in 1981, and that White was a police informant who also engaged in acts of prostitution for police officers. (Tr. 6/26/97: 47.) Soon after the Faulkner shooting, White told Jenkins that she "was scared" and that "she was in fear for her life from the police." (Id.: 48.) After these conversations, White disappeared. (Id.) The fact that White was a police informant who "tricked" for police was clear Brady information which established that White was under the control of Center City police.

Jamal sought to show that White's illicit relations with police fit the pattern of misconduct uncovered in the federal probe of Center City police corruption. Beginning in mid-1981, that probe led to over twenty convictions of police officers, including the Inspector who ran the Central Division in 1981-82, and the Deputy Commissioner for the whole department. The investigation revealed that police virtually controlled Center City prostitution through extortion, and that corrupt police engaged in sex with the Center City prostitutes under their control. (Mem. on Status and Scope of Remand Hearing 11-14.) Jamal specifically offered to prove that White was arrested six times in 1980 and 1981 by 6th District police officers Joseph Gioffre and Richard Herron. (Tr. 6/30/97: 141.) [22] These two officers were later convicted of extorting payoffs from 6th District street prostitutes. The fact that these two corrupt officers arrested White six times, combined with Jenkins' testimony that White was a police informant and "tricked" with police, demonstrates a great likelihood that White was under police control, and could easily have been pressured to give false testimony to help police "make their case" against Jamal.

Jenkins' testimony that police pressured White is corroborated by Veronica Jones, another Center City prostitute. At the 1982 trial Jones testified that police told her that White was given favors for providing false testimony. (Tr. 6/29/82: 129, 135-36.) At the 1996 remand hearing, Jones again described conversations in which police told her that White was receiving favors in return for her testimony. (Id.: 24, 30-31, 38-39.)

Jamal established that the heightened police attention to White continued through the 1980's. At a 1987 bail hearing, a Homicide detective intervened to advise the judge of White's role in the Jamal case. At that time, White was facing serious felony armed robbery charges. Because of the serious charges, and her record of "seventeen failures to appear" and "page after page" of arrests, the bail judge was reluctant to release White. (Def. Exh. 6, pp. 29-33.) Det. Culbreth, now retired, appeared on White's behalf at the bail hearing, causing the court to allow White to sign her own bond. (Tr. 6/30/97: 99.) Culbreth, who had served as Cynthia White's police escort at the 1982 trial, told the bail judge that White was a Commonwealth witness in a "high profile" case (i.e., this one). (Id.) Culbreth appeared at the bail hearing because White had called him at the Homicide Unit and requested his help. "[S]he called me because she knew I would do it." (Id.: 114; emphasis added.) The fact that Cynthia White "knew" that a Homicide detective would come to court in 1987 to assist her in obtaining release without bail is further strong evidence that White was offered favors at the time of her 1982 testimony. [23]

Retired Center City police officer Lawrence Boston also provided evidence that White was receiving special favors after the shooting. According to Boston, who knew White through walking a beat on 13th Street, "the word was out in the street" that White was living in Pine Hill, New Jersey, in a condominium near a golf course. (Tr. 6/30/97: 80-81.) Boston also confirmed that it was normal to elicit such information from Center City street prostitutes on his beat. (Id.: 82.) The information that Cynthia White, a down-and-out prostitute, was reportedly living at a fancy golf course condominium in New Jersey was obviously information which supported the defense theory that White had been coaxed into falsely identifying Jamal as the shooter. Yet this information -- indisputably known to police before trial -- was never disclosed to the defense. [24]

There is other evidence that White was susceptible to police pressure. During the trial, White was serving an 18-month sentence for prostitution in Massachusetts. (Tr. 6/21/82: 4.79, 4.84-85.) She had 38 previous arrests for prostitution in Philadelphia and had three open cases in Philadelphia. (Id.: 4.80-81.) In the days after the shooting, she was arrested at least twice for prostitution. (Id.: 4.169-71; 6/22/82: 5.31.) Her picture was posted in the 6th District with instructions for arresting officers to "Contact Homicide." (Tr. 6/21/82: 4.171.) Each time police picked White up, she revised her story. (Id.: 159-63, 168; 6/22/82: 5.176-190.) Without explanation, bench warrants against her were not prosecuted. (Id.: 5.44, 5.51.) Viewed collectively, the widespread evidence of White's unusual relations with police and her susceptibility to police pressure warrants a new trial, or at a minimum discovery into these links.

B. Jamal Presented Additional Significant Evidence Of Undisclosed Police Misconduct Bearing On This Case. Jenkins testified that Thomas Ryan told her four police officers -- O'Neil, "Sarge," Richard Ryan and "Boston" -- were present at the scene of the shooting. Jamal proffered the sworn statement of a new eyewitness, Marcus Cannon, to corroborate Jenkins' information. (Tr. 6/30/97: 123-26; Petitioner's Supplemental Offers of Proof, Exh. 5.) Cannon was walking north on the west side of 13th Street near the corner of Locust just before the shooting. He noticed two white men, one of whom looked like a bum, up against the wall facing the location where the shooting took place. Cannon heard shots and saw a flash of light. He then saw the two white men transform themselves, brandishing weapons and running toward the shooting. (Tr. 6/30/97: 123-26.) Cannon also confirms that a black male ran east from the shooting. (Id.) Cannon's account not only verifies that a black male fled the scene (as testified by Hightower, Singletary and Jones), but suggests that two armed police officers were present on the street and witnessed the shooting.

Lawrence Boston confirmed that he was assigned to the 6th District and walked a Center City beat, and confirmed that plainclothes police worked the corner at 13th and Locust at night in December 1981. (Id.: 70, 93.) Boston denied that he was working at the time of the shooting. (Id.: 95.) However, the court quashed Jamal's subpoena for Boston's work record and the prosecution refused to provide it. (Id.: 67-68.) Boston would not say where he was at the time of the shooting, but instead repeated that he "should have been" home in bed. (Id.: 76.)

Although police reports confirm that a Lt. O'Neil was present at the scene immediately after the shooting, no reports by O'Neil or any of these other officers have been produced to the defense. The information that police officers were actually present at the scene during the shooting and witnessed the shooting raises disturbing questions. For example, if these officers were present, why did prosecutors rely on a prostitute, White, and an arsonist-for-hire, Chobert, as the main witnesses as to the occurrence. Why are there no reports by these undercover officers? The court precluded Cannon's testimony, preventing Jamal from developing this issue. This matter should be remanded to permit Cannon's testimony and to permit discovery of the Commonwealth files.

Jamal also sought to present court records which show that in February 1982 (just two months after the shooting) Central Division Det. Richard Ryan arrested Kenneth Freeman, the man who was the source of the driver's license found on Faulkner's body. (Tr. 6/26/97: 22-28.) Assisting Ryan in the Freeman arrest was James Forbes, a Central Division stakeout officer who was one of the first police on the scene after Faulkner's shooting and a key prosecution witness at the 1982 trial. Freeman was William Cook's vending stand partner, and has already been connected to this case through the testimony of Arnold Howard. At the PCRA hearing a retired police officer revealed that Howard's license was found on the slain officer. (Tr. 8/11/95: 130, 167.) Howard had given his license to Freeman. (Id.: 9-11, 14.) Howard testified that both he and Freeman were taken into custody for questioning on the night of the shooting, and that a woman identified Freeman in a police lineup. (Id.: 9-11, 19.) The suppressed information that Howard's driver's license was found on the officer's body, that Howard and Freeman were treated as potential suspects immediately after the shooting, combined with the suppressed information of Richard Ryan's links to Jamal's case and his arrest of Freeman in February 1982, would have helped Jamal to show not only that a third person fled the scene, but that police actively pursued that explanation of the shooting. This information also corroborates Jenkins' claim that Richard Ryan was involved in this case. This matter should be remanded to permit Jamal to present evidence and obtain discovery on these matters as well.

III. THE PCRA COURT ERRED IN CONCLUDING THAT JAMAL WOULD NOT BE ENTITLED TO PCRA RELIEF EVEN IF ALLOWED TO PROVE HIS CONTENTIONS THAT CYNTHIA WHITE WAS AN UNDISCLOSED POLICE INFORMANT WHO TESTIFIED FALSELY AT TRIAL.

The PCRA court concluded Jamal is not entitled to any PCRA relief even if Jenkins' testimony is true. In the court's view, even if it is true that White was a police informant, that police pressured White and other prostitutes to give false testimony, and concealed this misconduct from the defense, these facts do not give rise to a due process violation. The PCRA court erroneously asserts that because Jenkins did not testify at the 1982 trial, her allegations of police misconduct and intimidation are irrelevant:

"While the defense asserts that Jenkins was pressured to testify against Abu-Jamal, she in fact never testified against him at trial. Therefore, no prejudice even theoretically could have ensued." (7/24/97 Op. 9.)

The court further concluded that "even setting aside issues of credibility, any linkage between Pamela Jenkins' contacts with Cynthia White and White's actual testimony at the trial of Abu-Jamal is highly nebulous. To reiterate, there simply is no claim that White revealed to anyone else that she falsely implicated Abu-Jamal." (Id. 18.) As these statements demonstrate, it was the PCRA court's view that, "even setting aside issues of credibility," Jenkins' testimony could not support PCRA relief as a matter of law. These conclusions are profoundly erroneous and directly contrary to Brady and its progeny.

Jenkins testified that White was secretly a police informant who turned "tricks" for police, that police pressured White and Jenkins to falsely identify Jamal as the shooter. There can be no doubt that Jenkins' testimony supports the first claim in Jamal's PCRA petition -- that police engaged in gross misconduct in this case, including manipulation of witnesses such as Cynthia White. (Amended PCRA Petition, ¶ 78.I.) Kyles v. Whitley, 514 U. S. 419, 115 S. Ct. 1555, 1573 (1995) (Brady obligation extends to evidence of bias in police investigation); United States v. Hammond, 598 F.2d 1008, on reh'g, 605 F.2d 862 (5th Cir. 1979) (law enforcement's threats to witness violated due process); Guerra v. Collins, 916 F. Supp. 620, 626 (S. D. Tex. 1995), aff'd, 90 F.3d 1075 (5th Cir. 1996) (police intimidation of witness must be disclosed to defense, and violates due process).

Moreover, Jenkins' testimony is not isolated. "Rather, it is additional proof among an array of evidence demonstrating that the prosecution and law enforcement built a case against Jamal through manipulation and coercion of witnesses, and through unfettered perjury of the central prosecution witness." (Application for Relief ¶ 16.) See Alcorta v. Texas, 355 U.S. 28 (1957). In isolating Jenkins' testimony from the other evidence of misconduct, the PCRA court ignored Kyles' teaching, that claims of police misconduct must be assessed "collectively, not item-by-item." 115 S.Ct. at 1567. The PCRA court's conclusion that Jamal is not entitled to relief even if Jenkins is believed is telling proof of the court's inability to fairly judge Jamal's claims.

IV. THE COURT'S CREDIBILITY FINDINGS ARE UNREASONABLE BECAUSE THE COURT BARRED EVIDENCE WHICH WOULD HAVE BOLSTERED JENKINS' ACCOUNT AND REFUTED THE PROSECUTION'S CLAIMS.

The PCRA court's opinion boils down to a determination that Jenkins' testimony is "entirely devoid of credibility." (7/24/97 Op. 11, 19.) The asserted bases for that finding are that (1) White was "conclusively" shown to be dead by 1997 when Jenkins says she saw her (Id. at 9, 14); and (2) "Jenkins could not have had the contacts that she claimed to have had with Officer Thomas Ryan when she said they occurred." (Id. at 12.)

A. The PCRA Court's Finding That Cynthia White Is Dead Is Not Supported By The Record, And Is Also Unreasonable Because The Court Prevented Jamal From Presenting Any Evidence On This Issue. The court asserts there was "conclusive proof" that Cynthia White died in 1992, thus refuting Jenkins' testimony that she saw White alive in 1997. (Op. 15.) Yet this prosecution claim was refuted by the prosecution's own evidence. For example, the court asserts that fingerprints taken from a woman who died in Camden in 1992 supposedly "were confirmed to match the fingerprints on file for Cynthia White." (Id.)25 This claim is simply false. The prosecution's own witness admitted that the fingerprint codes for the deceased New Jersey woman (whatever her actual name) are not the same as the fingerprint codes for Cynthia White. (Tr. 7/1/97: 49-51) The linchpin of the prosecution "death" claim was the assertion that "the Federal Bureau of Investigation classified Cynthia White (also referred to as Cynthia Williams) as deceased." (Op. 15.) Yet the FBI report does not classify White as "deceased." Rather, the FBI notes that New Jersey has classified her as deceased, but that the identification "is not supported by fingerprint comparison." (Tr. 7/1/97: 32-35.)26 Accordingly, all that the prosecution was able to show is that (1) someone who once used the alias "Cynthia White" in New Jersey died, and (2) whoever that person was, her fingerprint codes are different from the real codes for Cynthia White on FBI and Philadelphia records. [27]

The court goes on to assert that "[t]he defense made every effort to discredit the conclusive proof presented in Cynthia White's death certificate; its efforts, however, were undertaken in vein (sic)." (7/24/97 Op. 15.) The defense efforts were "undertaken in vain" only to the extent that the court barred those efforts. Jamal offered to present evidence which would have decisively rebutted the claim that White was dead, including evidence that the prosecution's own actions in searching for White from 1995 to 1997 demonstrated that the prosecution knew she was not dead. (Tr. 6/30/97: 127-29.) The prosecution's nationwide manhunt must have included a review of the readily accessible FBI computer records, which referenced the New Jersey death report. Obviously the prosecution must have known that this Camden report "was not supported by fingerprints," as the FBI noted, or the prosecution would not have continued their search for another three years. Jamal also offered testimony that numerous witnesses had seen White alive in Philadelphia in 1997. (Id.: 132.) The defense further offered Ruth Ray, the woman listed as the "mother" of the Camden deceased, who would have testified that this information was inaccurate. (Id.: 133.) The court precluded all this evidence.

B. The Court's Findings Regarding The Jenkins/Ryan Relationship Ignore Facts In Evidence And Facts Jamal Offered To Prove. The court's second basis for attacking Jenkins' credibility -- the supposed timing of her relationship with Ryan -- is equally infirm. Jenkins testified that by December 1981 she was already involved both sexually and as an informant with Ryan. She further stated she met Ryan "months" or "a year" beforehand, although she said she could not be "precise" about the timing. Jenkins recalled meeting Ryan when he stopped her for truancy while in uniform. Nonetheless, the court concluded that Jenkins could not possibly have met Ryan in uniform near Simon Gratz high school in 1981 because (1) "Ryan did not become a police officer until December 21, 1981," (2) Jenkins allegedly did not enroll in Simon Gratz High School until January 1982, and (3) police records show Ryan picked Jenkins up for truancy in June 1982. (7/24/97 Op. 12-13.) On each of these points, the court ignores evidence corroborating Jenkins' account.

Ryan and Jenkins have both testified that they met in 1981. That was Ryan's testimony in the 1988 Carter trial -- when Ryan's memory was fresher and he had no motive or pressure to lie on this issue. (Tr. 6/30/97: 233.) Moreover, Jenkins' grandmother, Jesse Milliner, provided an affidavit which stated that she became disabled in October 1981, and that Jenkins was then seeing a white "police officer" fitting Ryan's description. (Petitioner's Supplemental Offers of Proof, Exh. 6.) [28] Further, it is entirely misleading to say that Ryan "did not become a police officer until December 21, 1981," for Ryan wore a uniform and a badge several months before that. (7/24/97 Op. 12-13.) Ryan testified he was a uniformed, badged correctional officer for "six months prior to August of 1981," then was promoted to the Police Academy in August 1981, from which he graduated in December 1981. (Tr. 6/30/97: 31-32.)

During this same period Jenkins was a "runaway," then a student at Gillespie Middle School next door to Gratz, and her address was on Sydenham, six blocks from Gratz. (Tr. 6/26/97: 39, 73, 185.) As a prosecution witness acknowledged, it is common for runaways to be stopped for truancy. (Tr. 6/26/97: 210.) [29] Given all these circumstances, it is perfectly possible that in mid-1981 Ryan used his uniform and badge to "pick up" Jenkins on the street by claiming he was a truancy officer, as Jenkins testified.

Nor is the June 1982 incident report conclusive refutation of Jenkins' account. Contrary to the prosecution claims, the report did not state that Jenkins was stopped at Simon Gratz High School, but rather at "Pulaski and Hunting Park," near a "steak shop" a block away from Gratz, in the same neighborhood where Jenkins lived. (Tr. 6/26/97: 208.)30 Hence the incident report is consistent with Jenkins' account that they first met on a different, earlier date. [31]

C. The PCRA Court's Attack On Jenkins' Motives Is Totally Misplaced. There is absolutely no basis for the court's suggestion that there are "grave questions" about Jenkins' "motivations" in testifying. (Op. 16.) Jenkins was in jail when the defense first found her, and she was in jail again when she testified. As Jenkins acknowledged, she faces a likely prison sentence for art theft, a prosecution which Jenkins considers to be retaliatory for her involvement in this case. (Tr. 6/26/97: 69, 125-26.) It is evident that she has absolutely nothing to gain and much to lose by her testimony on Jamal's behalf. [32] If anything, Jenkins had reason to retract her account of police misconduct -- and felt the prosecution was pressuring her to do so. (Id.: 97.) The court suggests Jenkins was "angered" by the art theft prosecution, as if that provided some "motive" for her testimony. (Op. 17.) That is a complete non sequitur, however, because the art theft prosecution began some five months after Jenkins had completed her verified statement, and thus could not have provided any motive. What "angered" Jenkins was that the Commonwealth retaliated against her for assisting the defense in this case, and that she feared her children would be victims of the same retaliation. (Tr. 6/26/97: 69, 97.)

V. THE PCRA COURT FURTHER SHOWED ITS BIAS THROUGH ITS SKEWED RECITATION OF THE TRIAL EVIDENCE.

Arguing that the "evidence against Abu-Jamal was overwhelming," the court falsifies the record and completely ignores the defense evidence at trial and in these PCRA proceedings. (See 7/24/97 Op. 11.) See Smith v. Horn, 1997 U. S. App. LEXIS 19044 (3rd Cir. 1997) (noting danger of judges "acting as advocates for the state rather than as impartial magistrates"). The court claims the prosecution eyewitnesses were "compelling given the Defendant's highly distinctive appearance and hairstyle which included dreadlocks." (7/24/97 Op. 6.) That claim is ludicrous because the prosecution witnesses' descriptions of the shooter were wildly contradictory -- and far from Jamal. White described the shooter as "shorter than five eight," while Jamal is 6'1". (Tr. 6/22/82: 214-15.) As to Jamal's "hairstyle," Michael Scanlan initially told police that the running man had an "Afro" hairstyle, while Jamal wore dreadlocks. Then at trial Scanlan said he did not notice the man's hairstyle, "[j]ust the black cap he had on." (Tr. 6/25/82: 44-45.) Chobert said the shooter was "heavy," weighing 225 pounds, while Jamal was slim. (Tr. 6/19/82: 234-35.) Chobert said the shooter wore "jeans," while Jamal wore khaki "Arab" pants. (IIR - Chobert 12/9/81, Exh. C-21.) At the scene, Chobert told police the shooter "ran away." (Tr. 6/1/82: 70.) The court asserts that Chobert's "identification was positive, . . . and his trial testimony was unequivocal," yet Chobert himself admitted that his early descriptions to police were "wrong," and "I made a mistake." (7/24/97 Op. 6; Tr. 6/19/82: 246-48.)

The court asserts that "Scanlan described how Abu-Jamal came running . . . and attested that Abu-Jamal shot the officer." (7/24/97 Op. 6.) This is completely false. Scanlan, a young white male, repeatedly stated that he could not identify the shooter and that he could not distinguish the two black males who were standing near P. O. Faulkner. (Tr. 6/25/82: 12, 45, 52.) At the scene, Scanlan mistakenly "identified" Jamal as the driver of the Volkswagen. (Id.: 45-46.) The court tries to downplay the discredited testimony of Cynthia White, claiming that she simply "corroborated" Chobert and Scanlan. Yet White was the only witness who claimed to have seen Jamal with a gun in his hand. Chobert claimed he heard shots but did not see a gun or gunfire. (Tr. 6/19/82: 229.) Scanlan did not see any guns and could not say who was doing the shooting. (Tr. 6/25/82: 8.51-52, 8.65.) The fourth prosecution eyewitness, Albert Magilton, did not see the shooting and did not see anything in Jamal's hand. (Id.: 8.89, 8.100.) [33]

The court also reasons in a circle, contending that Jamal's evidence of misconduct is irrelevant because of the supposedly "overwhelming" prosecution case, yet ignoring that every aspect of the prosecution evidence is itself tainted by misconduct. The prosecution cannot deny that it concealed the promises it made to witness Chobert, and that the defense was never told that Arnold Howard's driver's license was found on the slain officer's body. (See Br. for Appellant 39-43, 56-58.) Because of police and prosecution misconduct, the jury also never heard William Singletary's account that Jamal was not the shooter and the true shooter fled, or Veronica Jones' account of two men fleeing the scene. (Id. 45-46, 49-53.) The jury never heard this evidence of misconduct in part because the court itself prevented the jury from hearing it. The court struck Veronica Jones' account of police misconduct and precluded further questioning on that theme. As a result, the jury never heard how Jones and Cynthia White were pressured by police to give false testimony. (Id. 44-46.) The PCRA court now refers to the discredited claim that Jamal "confessed," but fails to note that the court itself would not permit the jury to hear that P. O. Wakshul reported that Jamal "made no comments." (Id. 31-36.) The court refers to Chobert's "positive" testimony -- but the court would not permit the jury to hear that Chobert was an arsonist-for-hire, on probation, and that the prosecution had secretly promised to help this cabdriver regain his suspended driver's license in return for his testimony. (Id. 39-43.)

The simple reality is that the judge has colluded with the prosecution from the outset to secure a conviction and death sentence, assisting the prosecution in its misconduct and in concealing that misconduct. At trial, the court would not let Jamal represent himself, saddled him with an unprepared and ineffective counsel, manipulated the jury composition, and tailored its rulings to prevent the jury from hearing key defense evidence. (Id.: 69-91, 96-98, 99.) The court has engaged in the same obstructionist maneuvers throughout these PCRA proceedings, denying discovery, quashing defense subpoenas right and left, and precluding evidence and claims. A fair review of Jamal's claims cannot even begin without reassignment to a new PCRA judge and full discovery into the prosecution and police misconduct in this case.

CONCLUSION

For all these reasons, the opinion below should be reversed. Jamal's PCRA Petition should be granted in all respects. Alternately, he should be granted a full PCRA hearing with full discovery before a new PCRA court.

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, D.C. 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: August 29, 1997

Footnotes

[1] On April 23, 1997, Jamal filed a Supplemental Application for a remand on his Batson claim. The May 30 Order granting a remand with regard to Jenkins expressly denies the Batson remand and Jamal's request to disqualify Judge Sabo: "The request for a new post-conviction judge and the requests to support the Batson claim with the district attorney videotape and to take discovery on said claim are denied." (5/30/97 Order.)

[2] At the very outset, the court expressed its frustration that Jamal was permitted a supplementary hearing at all: "Have you ever heard of a PCRA that has come back for a remand two times? Two times?" (Tr. 6/26/97: 11.) The PCRA court also takes umbrage that Jamal filed his remand application "[w]ithout notice to the Trial Court" (7/24/97 Op. 3), yet no such notice is required under the appellate rules.

[3] The court insisted that the only way the defense could present evidence on this claim would be to call unidentified New Jersey "officials" to be chosen by the prosecution. (Tr. 6/30/97: 143-45.) The prosecution would not even name who these purported officials were, nor would the prosecution agree to produce New Jersey files sought by the defense. The defense refused to call these unidentified witnesses without access to any relevant files. (Id.) The next day the court reopened the hearing so the prosecution could call two New Jersey law enforcement officers. As it turned out, these witnesses were recordkeepers with no direct knowledge concerning the Camden death.

[4] The defense also proffered Det. James Corbett, to support Jenkins' contention that she was recently prosecuted in retaliation for her testimony on Jamal's behalf. (Id.: 117-23.)

[5] Thomas Ryan admitted he had conferred with prosecution team members both before and during his testimony. (Tr. 6/30/97: 6-9, 13, 62-63.) Lawrence Boston also admitted to having conferred with the prosecutor and her investigators, and changed his testimony when reminded of these preparation sessions. (Id.: 78-79, 86-87.)

[6] Demonstrating its biased double standards, the court refused to permit the defense to question Ryan about the button he wore on the witness stand, yet later commented that Jamal's supporters wore buttons at the 1982 trial. (Tr. 6/30/97: 11-13; 109.)

[7] In the Carter trial, Ryan denied that he had ever arrested Jenkins. (Tr. 6/26/97: 237.) In 1995 testimony in a federal civil rights case, on the other hand, Ryan testified that he met Jenkins in "early '83" when she was "arrested at Gratz High School for truancy. . . ." (Tr. 6/30/97: 25.) Hence Ryan testified in 1988 that he met Jenkins in 1981 and "never arrested her." (Tr. 6/26/97: 237.) Then, in 1995, Ryan testified that he met Jenkins in "early 1983" when he "arrested" her. (Tr. 6/30/97: 25, 27-28.) In his 1994 FBI interview, Ryan apparently testified that he met Jenkins in 1981. (Tr. 6/26/97: 259.) Ryan had an obvious penal motive to deny having had a sexual relationship with Jenkins when she was under 16 years old, creating potential liability for statutory sexual assault.

[8] Ryan also acknowledged knowing a crack addict named Joan Downs, who appeared for Ryan as a character witness at his federal sentencing hearing. (Tr. 6/30/97: 42-43.) According to Jenkins, Downs was also Ryan's prostitute. (Tr. 6/26/97: 61.)

[9] After White was released on bail, she disappeared. A bench warrant was issued for her in 1988. (Tr. 6/26/97: 169.) However, Philadelphia police did not notify the FBI of the warrant, and the warrant is not reflected on White's FBI printout. (Id.: 168-69.) That bench warrant was still active in Philadelphia court records at the time of hearing, despite the prosecution claim that White is "dead." (Id.: 169.)

[10] The prosecution falsely presented the "death certificate" as a "self-authenticating" official New Jersey document, but in reality the exhibit turned out to be an amalgam of portions of several different sealed and unsealed documents, stapled together to create the false impression of a single official record. (Tr. 6/26/97: 143.) The first page of the document was a partial copy of a death certificate, but an important line was missing which showed that key identification information was provided "by Funeral Director," not by public officials. On the back, this incomplete page bore a seal dated April 21, 1997. The second page of the document was an unsealed, faxed copy of a Report of Death bearing a fax line "Jan-04-00." The third page of the document was an unsealed fax cover page from the Camden County Medical Examiner to "Ken Curcio, Prosecutor's Office." (Com. Exh. 4.)

[11] The court asserts that "White's social security number, as reflected on her FBI record, was found to match that on the death certificate." (Op. 16.) In reality, as defense investigator Milton verified, official Social Security records show that the social security number 127-50-6809 shown in the Camden death certificate for "Cynthia Williams aka Mildred Saunders" was not issued to Cynthia White at all, but to a woman named Migdalia Cruz, who was born in Puerto Rico on May 25, 1957. The social security number 127-50-6808 was issued to a Mildred Saunders who was born in Savannah, Georgia on May 13, 1958. There was no record of death for either of these individuals. (Petitioner's Supplemental Offers of Proof, Exh. 2.)

[12] During the 1996 remand hearing, the defense sought information from the prosecution to assist in locating White. (Tr. 10/1/86: 280-81.) At that time the prosecution denied the request, stated they "don't have an address for Cynthia White," and neither asserted that White was "dead" nor disclosed that it was engaged in nationwide manhunt for White. (Id.)

[13] On some of the other Camden reports the sixth identifier is listed as "08." The PCRA court refused the defense request to separate the pages of Commonwealth Exhibit 8 to assist this court in reviewing these documents. (Tr. 7/1/97: 21.)

[14] Defense investigator Burton learned that the FBI records showed White might have died in New Jersey in November 1992 but that her death was "not verified by fingerprints." Burton followed this up with the New Jersey Bureau of Vital Statistics and local officials, including Camden County, but these offices told him there was no such death report. (Petitioner's Supplemental Offers of Proof, Exh. 1.)

[15] There are other telling contradictions in the prosecution exhibits. The Camden identification reports for "Cynthia Drake" -- the dead woman -- show that she had a surgical scar on her right arm, but not the left, yet the autopsy states that the dead woman describes a scar on the left arm, but not the right. (Com. Exh. 8.) Cynthia White has a scar on her nose (Com. Exh. 2) -- a mark not mentioned in any of the New Jersey information. These contradictions -- which come from the face of the prosecution's own exhibits -- defeat the prosecution claims to have "proved" White's death.

[16] The defense offered the sworn statement of defense investigator Donald Burton that several individuals in north Philadelphia identified a photograph of Cynthia White as "Lucky" or "Gloria" and verified that she was alive in 1997 and still frequented that neighborhood. (Tr. 6/30/97: 132; Petitioner's Supplemental Offers of Proof, Exhs. 1 and 2.) Investigator Christopher Milton also spoke to people in Philadelphia at addresses provided by White in Philadelphia court records and was told that she was still alive and still known as "Lucky" in 1995. (Id.; Exh. 2.)

[17] The linchpin of the identification process was a Camden County welfare card for "Cynthia Williams" discovered not on the body but in a closet in the abandoned house where the body was found. (Com. Exh. 8.) Based on that card, the Medical Examiner (formerly a long-time Philadelphia medical examiner) identified the body as "Cynthia Williams." Det. Boyd called Ruth Ray in Brooklyn, and asked if she knew "Cynthia Williams." Ray said she did not know such a person, but that she knew someone in Camden called Mildred Saunders. (See Ruth Ray Affidavit, Petitioner's Supplemental Offers of Proof, Exh. 3.) Based on that information, the Boyd Funeral Home completed the death certificate with the name "Mildred Saunders." The Funeral Home then pressed Ray to send money to bury the deceased, which helps explain why the Funeral Home may have misidentified the body. (Id.)

[18] Nor was Jamal permitted to copy these exhibits until the completion of the prosecution testimony. (Tr. 6/26/97: 180.) Some of the exhibits were portions of the very files the defense had subpoenaed, only to have the court quash the subpoenas. For example, the court quashed the defense subpoena for Thomas Ryan's employment history, but later permitted the prosecution to present this same document as an exhibit.

[19] The claims asserted in Bracy were entirely speculative, unlike Jamal's claims which are supported by testimony of numerous witnesses describing specific misconduct in this case. Bracy claimed that the state court judge in his case had been convicted of taking bribes and "fixing" other cases, and that because Bracy had not bribed the judge, the judge therefore had an "interest in a conviction" in Bracy's case, "to deflect suspicion that he was taking bribes in other cases." 66 U.S.L.W. at 4436. Based on these allegations, Bracy sought discovery of the prosecution files and work product, the sealed transcript of the judge's trial, and the ability to depose persons associated with the judge. The Supreme Court acknowledged that "it may well be . . . that petitioner will be unable to obtain evidence sufficient to support a finding of actual judicial bias in the trial of his case." Nonetheless, the Court held it would be "an abuse of discretion not to permit any discovery." Id. at 4438.

[20] It cannot be argued that this Court rejected Jamal's claims for discovery with regard to the issues presented by Jenkins' testimony. Jamal's remand application expressly sought discovery with respect to the issues of police misconduct raised by her testimony. This Court's remand order denied discovery with respect to Jamal's Batson claim, but did not deny discovery with respect to Jenkins. Moreover, the order certainly did not deny Jamal the subpoena power for the remand hearing.

[21] Throughout this appeal, the Commonwealth has falsely asserted that "Lucky" was not Cynthia White. It is obvious from Jones' trial testimony that "Cynthia" and "Lucky" are one and the same person. (Tr. 6/29/82: 129, 134-36.) Moreover, Jones confirmed at the 1996 remand hearing that White was nicknamed "Lucky." (Tr. 10/1/96: 30.) Jenkins also testified that Cynthia White was nicknamed "Lucky." (Tr. 6/26/97: 47.) Both in 1996 and again in 1997, Jamal proffered Cynthia White court files which show her alias as "Lucky," but the court refused to accept that evidence. (Tr. 10/1/96: 160-61; Tr. 6/30/97: 140-41.)

[22] Another target of the federal investigation was inspector Alphonzo Giordano, who was apparently the highest ranking officer at the scene immediately after the shooting. From 1978 to 1980, Giordano ran a $120,000 a year graft operation in the East Division. (Mem. on Status and Scope of Remand Hearing 13-14.)

[23] The same 1987 transcript provides further evidence of continuing police favors. Michael Aarons, whom White attempted to rob in the Center City area, testified that when he reported her crime, the police officer "knew her by first name" and told Aarons "I shouldn't be messing with her." (Tr. 6/29/87: 10; Petitioner's Supplemental Offers of Proof, Exh. 8.) Jamal proffered this further evidence of police favoritism, but to no avail.

[24] Defense investigator Robert Greer testified that in 1982 he was never able to interview White because there were two plainclothes police officers parked at the curb guarding her. (Tr. 8/1/95: 175-76.) Greer's testimony is powerful corroboration that police offered White special protection and were taking steps to assure that she did not disappear.

[25] The court refers to "the conclusive proof presented in Cynthia White's death certificate." (Id. 15.) Yet the death certificate was for a woman named "Mildred Saunders" aka "Cynthia Williams." (Com. Exhs. 4 and 8.)

[26] The full FBI printout, contained in the Camden files, confirmed the defense contention that the prosecution manipulated the Philadelphia printout of FBI computer data (Commonwealth Exhibit 2) to delete the "not supported by fingerprints" disclaimer.

[27] It is common for prostitutes and drug users to use many aliases or "street names" and to share aliases. (Tr. 6/30/97: 90; Tr. 10/2/97: 7-8, 17.) Hence the existence of a woman with a criminal history in Camden who used, among others, the name "Cynthia White," is not surprising. Indeed, Jamal sought to show that there is another woman named Cynthia White in Philadelphia and that the Philadelphia prostitute Cynthia White sometimes falsely gave the address of this other woman in court files. (Petitioner's Supplemental Offers of Proof, Exh. 2.) However, the PCRA court precluded all such evidence.

[28] The prosecution also had possession of FBI interviews of Ryan and Jenkins concerning the issue of when their relationship began, which the defense contended supported Jenkins' account, yet the court refused Jamal's requests to produce these documents. (Tr. 6/30/97: 3-5; Petitioner's Supplemental Offers of Proof, Exh. 7.)

[29] Contrary to the impression the prosecution sought to create, Jenkins did not testify that she was picked up by Ryan at Simon Gratz, but only that she was attending that school at the time, a matter about which she could easily have been mistaken, particularly since she had earlier attended Gillespie Middle School, next door to Gratz.

[30] In looking for the incident report, the prosecution team made no search of 1981 records, despite the fact that both Jenkins and Ryan previously recalled having met in 1981. Further, Ryan's account of the truancy stop was inconsistent both with Lt. Clarkson's recollection and with the incident report. Ryan testified that Jenkins was one of a number of truants arrested. (Tr. 6/30/97: 25.) The June 1982 incident report does not list any other truants arrested that day (nor did the prosecution's allegedly exhaustive search yield any other truancy arrests for Ryan that day). Nor did Clarkson testify that anyone else was picked up with Jenkins.

[31] Ryan also claimed he could not have picked up White in a red pickup truck because in March 1997 he was in a half-way house with a 9:00 p.m. "curfew," and had sold his truck. (Tr. 6/30/97: 52, 53-54.) Although Ryan admitted he had discussed this testimony with prosecution investigators, the prosecution presented no evidence to support Ryan's self-serving testimony. (Id.: 60.) Without the ability to subpoena relevant documents, the defense had no ability to challenge these claims.

[32] The court illogically suggests Jenkins was paid for her testimony because Jenkins assisted defense investigator Donald Burton in looking for White. Yet Jenkins testified, without contradiction, that she looked for White "for free." (Tr. 6/26/97: 92.) The court charges that Burton offered "lucrative monetary incentives" to Tom Ryan and "made reference to employment opportunities" to Culbreth. These claims are false -- and are particularly outrageous because the court refused to let Burton testify to refute this charge. Moreover, contrary to the court's opinions, Culbreth was adamant that Burton "didn't offer me any job" and that "he just mentioned small talk, a police retiree talk. You know, there's work here in Philadelphia." (Tr. 6/30/97: 105-06.) Boston likewise testified that Burton talked only about "his past employment . . . [and] me going fishing all the time." (Id.: 89.) Ryan either misunderstood or twisted this "police retiree small talk" into something more in order to hurt the defense. That cuts against Ryan's credibility, not Jenkins'.

[33] The court repeatedly asserts that the prosecution established a "motive" for Jamal to have shot the officer, but never states what purported motive he is talking about. The prosecution did not articulate any discernible "motive" for a talented radio journalist to shoot a police officer at a crowded Center City intersection.

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