Petitioner Mumia Abu-Jamal ("Jamal") respectfully applies, pursuant to Rule 2541 et seq. of the Rules of Appellate Procedure, for reargument of his appeal.
The Order In Question
Jamal seeks reargument with respect to the Opinion of the Court herein decided October 29, 1998. Because "the order is voluminous," a computer printout of it is appended hereto pursuant to Rule 2544 of the Rules of Appellate Procedure.
Jamal cites the following specific points of law and fact overlooked or misapprehended by the Court:
The Court, in denying Jamal's claim that he was impermissibly removed from the courtroom for significant portions of the trial, overlooks or misapprehends the constitutional principle that the right to be present in the courtroom in capital cases is non-waivable. (Slip op. at -, Lexis printout at -.) Further, in ruling that Jamal was not permissibly absent during the June 18, 1982 in camera conference, the court misapprehends and overlooks the facts in assuming that Jamal had been removed from court due to disruptive behavior. (Slip op. at -, Lexis printout at -.) In reality, the court first removed Jamal from court later that day. Hence there is no excuse for his absence from the morning conference.
Statement of Reasons For Reargument
IN AFFIRMING THE DENIAL OF RELIEF WITH RESPECT TO JAMAL'S ABSENCE FROM THE 1982 PROCEEDINGS, THE COURT HAS OVERLOOKED OR MISAPPREHENDED THE RELEVANT LAW AND FACTS.
The Court's Opinion denies relief on Jamal's claim that he was improperly barred from significant portions of his trial proceedings. The Court holds that removal was permissible because Jamal was "unwilling[] to cooperate with the court and/or his counsel" and "oftentimes argumentative with the court." (Slip op. at -, Lexis printout at -.) In so ruling, the Court implicitly rules that Jamal's purportedly "uncooperative" and "argumentative" conduct constituted a waiver of his right to be present during the proceedings.
The Court thereby overlooks and misapprehends the clear United States Supreme Court precedent holding that the right to be present in capital proceedings, such as here, is not waivable. The Court makes no reference to Lewis v. United States, 146 U.S. 370 (1892), cited in Jamal's briefs. Lewis squarely rejects the argument that the right to presence in the courtroom is waivable, citing earlier decisions of this Court:
A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While the rule has, at times and in cases of misdemeanors, been somewhat relaxed, yet in felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. "It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence." Prine v. The Commonwealth, 18 Penn. St. 103, 104, per Gibson, J.
Lewis, 146 U.S. at 373 (emphasis added). See also Hopt v. Utah, 110 U.S. 574, 579 (1884) ("it was not within the power of the accused or his counsel to dispense with the statutory requirement as to his personal presence at trial").
The accused's right to be present is even more fundamental in capital cases. See Near v. Cunningham, 313 F.2d 929, 930 (4th Cir. 1963). Indeed, the holdings of Lewis and Hopt were soon limited to capital cases. Diaz v. United States, 223 U.S. 442 (1912) (distinguishing Hopt and Lewis because they were capital cases).
In its Opinion, this Court cites to Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976). But Africa involved apparent misdemeanors, not capital charges. The court also cites Illinois v. Allen, 397 U.S. 337 (1970), which involved armed robbery, not a capital charge. The United States Supreme Court has never overruled the holding of Lewis and Hopt that the right to be present in capital cases is non-waivable. Nor had this Court overruled Prine until the present Opinion.
Before this Court overrules its own age-old precedent, as well as well-settled United States Supreme Court caselaw holding that the right to be present in capital proceedings is unwaivable, Jamal respectfully submits that the Court should entertain reargument.
Jamal also seeks reargument because the Court has misapprehended the facts in denying Jamal's specific claim for relief because he was not present at a June 18, 1982 in camera conference. The Court asserts that this conference took place "during a time in which Appellant had been removed from the courtroom due to his persistent disruptive behavior." (Slip op. at -, Lexis printout at -.) In reality, at the time of the conference on the morning of June 18, 1982, Jamal had never been removed from the courtroom. He was removed for the first time later that day. (Tr. 6/18/82: 91.) Moreover, before the conference on the morning of June 18, 1982, Jamal had never been adequately warned of the risk that he could be removed from the proceedings. See Africa, supra, 353 A.2d at 864 (defendant "must be made to realize that his disruptive tactics will result only in his exclusion from the courtroom").
Because the Court has clearly overlooked or misapprehended the facts regarding Jamal's absence from the June 18, 1982 morning conference, the Court should grant reargument.
[posted November 6, 1998]
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