PETITION FOR A WRIT OF CERTIORARI

No. 98-
________________________________________

In The

Supreme Court of the United States

October Term, 1998
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MUMIA ABU-JAMAL,
Petitioner

COMMONWEALTH OF PENNSYLVANIA,
Respondent.
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On Petition for Writ of Certiorari
to the Supreme Court of Pennsylvania
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PETITION FOR A WRIT OF CERTIORARI
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STEVEN W. HAWKINS*
1436 U. Street, N.W., Suite 104
Washington, DC 20009
(202) 387-3890

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

DANIEL R. WILLIAMS
Thorton & Tanenhaus
521 5th Avenue, 27th Floor
New York, NY 10175
(212) 883-1200

JONATHAN B. PIPER
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
(312) 876-7992

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

WHETHER PETITIONER WAS IMPROPERLY STRIPPED OF HIS RIGHT TO SELF-REPRESENTATION BY THE TRIAL COURT'S RULING THAT PETITIONER HAD TO LET THE COURT OR BACK-UP COUNSEL CONDUCT VOIR DIRE? [1]

WHETHER PETITIONER'S FORCED REMOVAL FROM SIGNIFICANT PORTIONS OF HIS CAPITAL TRIAL VIOLATED HIS RIGHT TO SELF-REPRESENTATION, TO ASSIST IN HIS DEFENSE, AND TO CONFRONT WITNESSES AGAINST HIM?

WHETHER PETITIONER'S ABSENCE FROM AN IN CAMERA CONFERENCE, WHERE A JUROR WHO HE HAD EXAMINED IN VOIR DIRE WAS REMOVED, VIOLATED HIS DUE PROCESS RIGHTS AS AN ACCUSED TO BE PRESENT AT ALL CRITICAL STAGES OF HIS CAPITAL TRIAL?

2. The Court's Denial of Mr. Jamal's Right to Self-Representation 4
a. Voir Dire 4
b. Start of Trial 5

6. Removal From the Courtroom Without Any Means of Monitoring and Communication 13

I. PETITIONER WAS IMPROPERLY STRIPPED OF HIS SIXTH AMENDMENT RIGHT TO SELF-REPRESENTATION BY THE TRIAL COURT INITIALLY ASSUMING CONTROL OF VOIR DIRE, THEN LATER PLACING IT IN CONTROL OF BACK-UP COUNSEL 18

II. PETITIONER'S FORCED REMOVAL FROM SIGNIFICANT PORTIONS OF HIS CAPITAL TRIAL VIOLATED HIS RIGHT TO SELF- REPRESENTATION, TO ASSIST IN HIS DEFENSE, AND TO CONFRONT THE PROSECUTION'S WITNESSES 21

III. PETITIONER'S ABSENCE FROM AN IN CAMERA CONFERENCE, WHERE A JUROR WHO HE HAD EXAMINED IN VOIR DIRE WAS REMOVED, VIOLATED HIS DUE PROCESS RIGHTS AS AN ACCUSED TO BE PRESENT AT ALL CRITICAL STAGES OF HIS CAPITAL TRIAL 25

Opinion of the Supreme Court of Pennsylvania in Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (Pa. 1998) A

Order of the Supreme Court of Pennsylvania Denying Application for Reargument (Nov. 25, 1998) B

Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (Pa. 1989), cert. denied, 498 U.S. 993 (1990) 1

United States v. Bordallo, 857 F.2d 519, amended 872 F.2d 334 (9th Cir. 1988) 26

Petitioner Mumia Abu-Jamal prays that a writ of certiorari issue to review the judgment of the Supreme Court of Pennsylvania in this case.

The opinion of the Supreme Court of Pennsylvania on appeal is reported at Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (Pa. 1989), cert. denied, 498 U.S. 993 (1990), re'hrg denied, 498 U.S. 993 (1990), second re'hrg denied, 501 U.S. 1214 (1991). The opinion of the Supreme Court of Pennsylvania on post-conviction review, at issue here, is reported at Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (Pa. 1998); it is reprinted in Appendix A to this petition. The order denying application for rehearing is reprinted in Appendix B.

This Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1257(a), since petitioner asserted below and asserts herein deprivation of rights secured by the United States Constitution. The Opinion below was entered October 29, 1998, and reargument was denied November 25, 1998. Per the order of Justice Souter dated February 17, 1999, petitioner's time to file the instant petition was extended to April 24, 1999.

On December 9, 1981, at approximately 3:55 a.m., petitioner Mumia Abu-Jamal was found wounded by a gunshot near the corner of 13th and Locust Streets in Philadelphia. Lying nearby was a police officer, Daniel Faulkner, also wounded by a gunshot. Both were taken to a nearby hospital. Mr. Jamal survived after extensive surgery, but officer Faulkner died. Mr. Jamal was then charged with the officer's murder and related offenses, and ultimately convicted and sentenced to die.

Mr. Jamal maintains his innocence and has, since his conviction, been able to uncover an array of evidence powerfully supporting his long-standing insistence that he is a victim of a monumental injustice. Among the evidence uncovered are witnesses possessing exculpatory information who attest to egregious police intimidation, evidence establishing that an alleged confession attributed to Mr. Jamal was fabricated, admissions by a prosecution eyewitness to concealed favors provided by the prosecution in apparent exchange for trial testimony, and scientific evidence indicating that the prosecution's theory of the case is deeply flawed.

Wholly apart from the newly discovered evidence tarnishing the prosecution of Mr. Jamal and strongly pointing to his innocence is the record evidence that he never received adequate assistance of counsel in either the guilt or penalty phase. Nor did he receive adequate funding to counter the prosecution's scientific evidence. As amplified below, Mr. Jamal sought permission to proceed pro se after losing confidence in his court-appointed lawyer, Anthony Jackson. Attorney Jackson was admonished at one pretrial appearance to devote more time to the case. (Tr. 1/5/82: 66) Although attorney Jackson recognized his own limitations (as evidenced by his request that the court appoint a second attorney to assist him) (Tr. 7/31/95: 92), the court did nothing to ensure that he would be equipped to represent Mr. Jamal at trial.

Fully expecting Mr. Jamal to defend himself pro se, attorney Jackson never prepared for trial, and his courtroom performance reflects his lack of preparation: defense witnesses were never prepared prior to testifying, crucial witnesses were never subpoenaed, exculpatory information was never presented to the jury, either through cross-examination or independently acquired through investigation, obvious avenues of attack on the prosecution's proof were never exploited, and scientific evidence casting doubt on the prosecution's theory of the case was never acquired. In short, the prosecution's case was never placed within the "crucible of meaningful adversarial testing" such that the resulting verdict engenders confidence that justice was done. United States v. Cronic, 466 U.S. 648, 656 (1984).

On May 13, 1982, after his court-appointed lawyer (Anthony Jackson) admitted his lack of preparation to handle this case and expressed a desire to withdraw as counsel, Mr. Jamal sought, and was granted, permission to represent himself. (5/13/82, Tr. 53.) The court, over Mr. Jamal's vigorous objection, appointed attorney Jackson as back-up counsel. Jackson himself vehemently protested being placed in the role of back-up counsel, prompting the judge to reply, "You can fight that out with Mr. Jamal." (Tr. 5/13/82: 56-58, 60.)

Mr. Jamal served as his own counsel in a suppression hearing, in which he queried fifteen witnesses and acquitted himself well as a pro se advocate. Mr. Jamal also served as counsel during the first two days of jury selection, without incident. He questioned 23 venire members, successfully challenging two for cause, defeating a government challenge for cause, and exercising two peremptory challenges. (6/7/82, Tr. 149, 163, 174; 6/8/82, Tr. 46, 56, 69, 136.)

At the start of the third day of voir dire, with forty percent of the panel questioned, the court precipitously ruled, over objection, that Mr. Jamal had to turn voir dire over to Mr. Jackson, or the court would conduct voir dire. (6/9/82; Tr. 18.) The court intruded onto Mr. Jamal's voir dire solely upon the purported observations of the prosecutor that the pace of the voir dire was too slow (Id. at 3, 17-18), and that Mr. Jamal's status as a defendant in a high-profile murder case was unsettling to the venire. (6/8/82, Tr. 139-40; 6/9/82, Tr. 3-5, 17-18.)

Mr. Jamal objected that his right to self-representation was being abridged. (6/8/82, Tr. 158.) He argued that speculation over how prospective jurors felt about his pro se status is hardly justification for intruding into his well-conducted voir dire. The defense noted "that in all homicide cases, particularly in capital cases, . . . jurors express some apprehension, some unsettlement, some fear with regard to the whole process." (6/9/82, Tr. 10.)

With respect to judicial economy, the defense observed that at no time was Mr. Jamal "chastised or disciplined in any way for any obstruction" of the voir dire process. (Id. at 12-13.) Attorney Jackson reminded the court, "The last case I had before you, it took us nine days to select a jury and it certainly didn't have as much publicity as this case." (Id. at 13.) Mr. Jackson also noted another trial where "it took five weeks to select a jury." (Id.)

Mr. Jamal initially refused to relinquish control of voir dire to back-up counsel, as he feared that this would be the first irrevocable step towards permanently stripping him of his right to represent himself. But faced with the prospect of a court-conducted voir dire, Mr. Jamal relented and attorney Jackson took over the questioning of the panel. To avoid any possible confusion, attorney Jackson stated for the record that Mr. Jamal was coerced into relinquishing control of the case, and that this occurred "without any prior warning." (Id. at 107.)

Mr. Jamal's right to self-representation was restored at the start of trial, but lasted less than a day. After the court's welcoming remarks to the jury, but before the state's opening statement, Mr. Jamal intervened to ask for a microphone at table. (6/17/82, Tr. 44.) A side-bar conference was held at which the court told Mr. Jamal, "You have to speak up and if you can't speak up then I may have to remove you and put Mr. Jackson in [as counsel]." (Id. at 45.) Trial resumed and Mr. Jamal reasserted that he needed a microphone. (Id. at 45-46.) A side-bar was held and the court repeated its threat to remove Mr. Jamal as pro se counsel. (Id. at 50.)

When trial resumed before the jury, Mr. Jamal renewed an earlier motion to replace attorney Jackson with back-up assistance of his own choosing. (Id. at 70-71) Rather than have attorney Jackson serve as backup counsel or take over the defense, Mr. Jamal sought the assistance of John Africa, a non-lawyer who just recently had successfully defended himself in a federal prosecution. Mr. Jamal sought Mr. Africa's assistance either in an advisory capacity or as substitute counsel. (6/9/82, Tr. 108; 6/17/82, Tr. 55-57.) These requests were denied. (Id. at 57-58.) The jury was excused and the court reiterated its threat to remove Mr. Jamal as pro se counsel. (Id. at 72-73.)

In response to Mr. Jamal's request that he be removed from the case, Mr. Jackson again asked that he be permitted to withdraw. (Id. at 63-65.) Seeing that this scenario raised serious constitutional questions, the court suggested that attorney Jackson take an emergency appeal to the Pennsylvania Supreme Court for guidance on the question of his role in the case. (Id. at 116-17.) Mr. Jackson was uncertain whether he had standing to appeal since Mr. Jamal was still pro se counsel. (Id. at 117-18.) The court commented, "Well, if you are asking me to remove him, I'll remove him. I'll make it easy for you." (Id. at 118.) The state then suggested that the court temporarily remove Mr. Jamal as primary counsel in order to give Mr. Jackson standing to appeal, and upon disposition, re-appoint Mr. Jamal to his pro se status. (Id. at 119-21.) When Mr. Jackson raised concerns about such an approach, the court ruled that Mr. Jamal was being stripped of his right to self-representation not to create appellate jurisdiction but because of his disruption of court proceedings. (Id. at 122-23.) This decision was made in Mr. Jamal's absence.

The next day started with a conference in chambers, held in Mr. Jamal's absence, to discuss the denial by the Pennsylvania Supreme Court, per Justice McDermott, of Mr. Jackson's appeal. (6/18/82, Tr. 1-35.) At the end of the conference, still outside Mr. Jamal's presence, the court informed counsel of another matter. A juror had made a request to go home to take her sick pet to the veterinarian during evening hours. (Id. at 36.) Although her request would not have disrupted proceedings, the court summarily denied it without advising counsel or Mr. Jamal. (Id.) Mr. Jackson was reluctant to agree to her dismissal from the jury without consulting Mr. Jamal. (Id. at 43.) Ultimately, Mr. Jackson acquiesced on the basis of the court's and prosecution's remarks that the juror was prejudiced against Mr. Jamal. The prosecutor stated, "she hates Jamal, can't stand him." (Id. at 40.) The court agreed, stating, "She'll hang him." (Id. at 46.)

The juror, Mrs. Jeannie B. Dawley, an African American woman, was the only member of the jury personally questioned and selected by Mr. Jamal before his right to conduct voir dire as pro se counsel was stripped. (6/7/82, Tr. 174, 187.) Mr. Jackson, as back-up counsel, played no role in questioning or selecting this juror. Mrs. Dawley was the first person selected to serve on the jury. (Id.) [2]

During the in camera conference to review Justice McDermott's ruling, the court indicated to counsel that it was predicting Mr. Jamal's removal from the courtroom: "I know what's going to happen. . . . [H]e'll stand up and rant and rave, and I'll ultimately have to hold him in contempt of court, and I will have to remove him from this courtroom." (6/18/82, Tr. 15.) When trial proceedings began, Mr. Jamal, convinced that his constitutional right to represent himself was being abridged, continued to protest on the record. (Id. at 61-64.) The court responded just as it had predicted: Mr. Jamal was expelled from the trial proceedings. (Id. at 289-90.)

5. The Court's Continuous Refusal to Restore the Right to Self-Representation

The following day, June 19, Mr. Jamal was permitted to return to the courtroom upon his assurance that he would "behave himself." (6/19/82, Tr. 4.) He remained in the courtroom for the day's proceedings without incident.

On June 21, the next day of trial, Mr. Jackson moved on behalf of Mr. Jamal that his right to self-representation be restored. (6/21/82, Tr. 2-3.) He noted that Mr. Jamal had demonstrated that he would no longer disrupt the proceedings, although the "disruption" was rooted in the unjustified abridgment of Mr. Jamal's right of self-representation. As Mr. Jackson stated, "Mr. Jamal assured this Court on Saturday that his behavior would be consistent with the decorum and respect of the Court, I see no reason why Mr. Jamal should not or could not be permitted to represent himself from this point on." (Id. at 3.) The prosecution had no objection to this request. (Id. at 5.) Nonetheless, the court denied the motion to restore Mr. Jamal's right to self-representation, noting: "I said that once I had made a decision to remove Mr. Jamal that that would stay; that you are the attorney now." (Id.)

The issue of self-representation arose again the next day. Mr. Jackson moved on behalf of Mr. Jamal for leave to file a petition in federal district court on the question whether Mr. Jamal's Sixth Amendment right to self-representation was being abridged. (6/22/82, Tr. 12.) Although acknowledging the sincerity of Mr. Jamal's desire to represent himself, the court nevertheless reiterated its position and denied the application to seek relief in federal court. (Id. at 19.) Mr. Jamal then attempted to speak on his own behalf, resulting in his ejection from the courtroom. (Id. at 20-22.)

Mr. Jamal returned to the proceedings the next day, June 23, and that afternoon reiterated his request not to have Mr. Jackson act on his behalf. (6/23/82, Tr. 116.) The court viewed his assertion as "disrupting the orderly proceedings" of trial. (Id. at 125.) Mr. Jamal took issue, asserting that his right to proceed pro se was not disruptive behavior. (Id. at 124-25.) The court told Mr. Jamal to "[t]ake a walk" and had him removed from the courtroom. (Id. at 127.)

Mr. Jamal was permitted back into the courtroom the next day, June 24. (6/24/82, Tr. 7.) After the direct and cross-examination of a police officer who authenticated certain photographs, Mr. Jamal attempted to question the witness. (Id. at 16-17.) The jury and witness were excused and another discussion ensued about Mr. Jamal's desire for self-representation. In the course of the discussion, Mr. Jamal asked what was the court's motive for denying him his right to self-representation. (Id. at 20.) The court responded, "You're disrupting the decorum. That's why you can't represent yourself." (Id.)

A security officer was next called to testify regarding certain statements she allegedly heard Mr. Jamal make on the night he was rushed to the hospital. At the conclusion of the direct and cross-examination of this witness, Mr. Jamal tried to cross-examine this witness on why she had not reported the supposed admission to police until two months after it allegedly took place. (Id. at 88-89.) The assertion of his right to proceed pro se once again resulted in his expulsion from the courtroom. (Id. at 91.)

Mr. Jamal was brought back into court the following day, June 25. During Mr. Jackson's cross-examination of an alleged eyewitness, Mr. Jamal attempted to exercise his right to self-representation and ask questions. (6/25/82, Tr. 13-14.) Mr. Jamal was then expelled from the courtroom. (Id. at 14-15.)

On June 26, Mr. Jamal was permitted to return to court after indicating that he would "not interrupt the proceedings and [would] be quiet." (6/26/82, Tr. 37-38.) At the end of the day, the state rested its case. (Id. at 154-55.) Mr. Jamal stated for the record (outside the presence of the jury) that he had continuously objected to Mr. Jackson representing him. (Id. at 155-56.)

On the next day of trial, June 28, Mr. Jackson requested on behalf of Mr. Jamal that his right to self-representation be restored. Mr. Jackson argued:

The prosecution did not object to this request. (Id. at 40.) Nevertheless, the court denied it, stating: "I told you initially that when I appointed you as Counsel, once you became Counsel you were going to follow this thing all the way through." (Id.)

Mr. Jamal also objected to the secretiveness of an in camera conference held, without his presence, regarding a medical examiner's report quoting a police sergeant as stating that Mr. Jamal was shot by "arriving police reinforcements," not the deceased. (Id. at 10-11.) The sergeant quoted in the report, and the medical examiner's assistant, were questioned in chambers, but the sergeant denied having made the reported statement. (Id. at 16-35.) When the proceedings resumed in open court, Mr. Jamal requested that the in camera events be made part of the public record. (Id. at 40.) The court denied this request as well. (Id. at 41.) Dissatisfied with the perceived secretiveness, Mr. Jamal persisted in his objection, leading once again to his removal from the courtroom. (Id. at 48.) As a result, Mr. Jamal did not hear Mr. Jackson's opening and the defense witnesses for the day.

Mr. Jamal was permitted to return to the courtroom the next day after the court was given assurance by counsel that he would "behave himself." (6/29/82, Tr. 3.) He remained present for the remainder of the defense case.

The clashes between Mr. Jamal and the court over his right to self-representation led him to decide against testifying. Asked by the court if he wished to testify in his own behalf, Mr. Jamal stated:

At the close of the defense's case, Mr. Jackson requested again that the court allow Mr. Jamal the right to self-representation and permit him to make the closing argument. (Id. at 57.) The court responded: "I denied it before and I deny it now. If he wants to give his version of that night he is free to take the witness stand." (Id.)

6. Removal From the Courtroom Without Any Means of Monitoring and Communication

Although Mr. Jamal sought to represent himself and had prepared the defense case for trial, he was banished for large portions of the trial proceedings. (6/18/82, Tr. 89-90; 6/22/82, Tr. 20-22; 6/23/82, Tr. 127; 6/24/82, Tr. 90-91; 6/25/82, Tr. 14-15; 6/28/82, Tr. 48.) During these periods of banishment, the court did not provide Mr. Jamal any means to monitor the proceedings or to consult with Mr. Jackson while court was in session. The court failed to consider, and to deploy, available technological devices to ensure that Mr. Jamal could at least contemporaneously monitor the proceedings, as well as promptly communicate with Mr. Jackson.

As a result, Mr. Jamal was not able to participate meaningfully in his defense, including during highly critical stages of trial. At the time of his removal on June 22, the prosecution's pivotal eyewitness, Cynthia White, was still on the stand. Because of his expulsion and lack of any monitoring device, Mr. Jamal did not see or hear much of the cross-examination of this critical prosecution witness, and he did not see or hear any of the redirect or re-cross examinations. (6/22/82, Tr. 24-244.) When Mr. Jamal was removed from the courtroom on June 23, he missed the cross, redirect, and recross examination of Anthony Paul, a firearms expert with the Philadelphia Police Department's Firearms Inspection Unit. (6/23/82, Tr. 130-92.) After his removal from the courtroom on June 24, Mr. Jamal missed the completion of the cross, as well as the redirect and recross examination of Priscilla Durham, the security guard at the hospital and another critical witness for the prosecution. (6/24/82, Tr. 97-128.) On June 25, Mr. Jamal was removed from the courtroom and missed most of the cross examination of state's eyewitness Michael Scanlan, as well as redirect and recross of this witness. (6/25/82, Tr. 17-74.) Mr. Jamal also did not hear or see eyewitness Albert Magilton and medical examiner Paul Hoyer. (Id. at 75-112, 137-38; 139-190.) On June 26, Mr. Jamal missed the direct testimony of Charles Tumosa, a criminalist for the City of Philadelphia, before being allowed to return to court. (6/26/82, Tr. 11-36.) On June 28, Mr. Jamal did not hear Mr. Jackson's opening statement, the questioning of witnesses regarding a written report that he was shot by arriving officers, or other defense witnesses called that day. (6/28/82, Tr. 49-189.)

On July 2, 1982, Mr. Jamal was convicted of murder in the first degree and possession of an instrument of a crime. (7/2/82, Tr. 75-76.) The next day, on July 3, the Saturday of the July 4th weekend, the sentencing phase of the trial began and ended. The jury voted to impose the death sentence. (7/3/82, Tr. 98.) Post-trial motions were filed and denied. (5/25/83, Tr. 1-157.) The court, through Judge Sabo, formally imposed the sentence of death on May 25, 1983. (Id. at 163-66.)

Mr. Jamal asserted that the trial court interfered with his Sixth Amendment right to represent himself when the court put control of voir dire into the hands of back-up counsel. Mr. Jamal also argued that the court's decision to do so under the guise of controlling the flow of proceedings did not eclipse the constitutional error.

The state supreme court denied relief, holding that since Mr. Jamal "was unable to properly conduct voir dire," the trial court did not err in ordering him to choose between having the court conduct voir dire or back-up counsel. 720 A.2d at 109. The state supreme court further found, as justification, that "[t]he trial court noted at the time of voir dire that several of the potential jurors were obviously shaken by [Mr. Jamal's] questioning." 720 A.2d at 109, n. 35.

Mr. Jamal asserted that the trial court erred in completely stripping him of his right to self-representation under the Sixth Amendment based on "disruptive behavior," particularly since these disruptions were the result of his protests against being denied the right to represent himself. Mr. Jamal further argued that even if its actions were justified, the trial court nevertheless violated his Fifth and Sixth Amendment rights because he could neither monitor nor participate in a meaningful way in the trial proceedings through the use of available technology.

The state supreme court denied relief, ruling that "[r]emoving a disruptive defendant from the [trial] proceedings is a permissible means for a court to discharge its duty to defend the judicial process." 720 A.2d at 109. With respect to the assertion that available technology was not used to keep Mr. Jamal abreast of proceedings and promptly communicate with court-appointed counsel, the state supreme court noted that there was "some indication" in the record that "counsel told [Mr. Jamal] what had transpired and/or what the intended course of action was." 720 A.2d at 109-10.

Mr. Jamal asserted that his absence from an in camera conference, where a juror who he had examined in voir dire was removed, violated his due process rights as an accused to be present at all critical stages of the trial.

The state supreme court denied relief, ruling that this conference had occurred at "a time in which [Mr. Jamal] had been removed from the courtroom due to his persistent disruptive behavior." 720 A.2d at 110. The state supreme court further commented, as justification, "that this particular juror appeared hostile toward [Mr. Jamal] during the voir dire proceedings." Id.

The writ should be granted to clarify when a trial court may strip away a defendant's Sixth Amendment right to self-representation where the defendant neither engages in misconduct nor flouts the procedural rules of the court. The writ should also be granted to clarify the circumstances under which a trial court may deny a capital defendant his right to be present at the trial. The writ should be granted to clarify what remedial measures a trial court must undertake, once a defendant is banished from the courtroom, to ensure that he is nonetheless afforded the opportunity to participate meaningfully in the trial proceedings. The writ should be granted to clarify if the removal of a juror is such a critical stage in a trial that the defendant has a right to be present, especially when he conducted the voir dire of this juror in exercise of his right to self-representation.

I.PETITIONER WAS IMPROPERLY STRIPPED OF HIS SIXTH AMENDMENT RIGHT TO SELF- REPRESENTATION BY THE TRIAL COURT INITIALLY ASSUMING CONTROL OF VOIR DIRE, THEN LATER PLACING IT IN CONTROL OF BACK-UP COUNSEL.

This case presents a troubling instance where a trial court unjustifiably stripped an articulate and highly-intelligent defendant of his right to proceed at trial on his own behalf. [3] The record here would allow this Court to clarify the circumstances under which a trial court may curtail, or even prevent, a defendant from proceeding pro se.

Of course, the underlying right to proceed pro se is uncontroversial. In Faretta v. California, 422 U.S. 806 (1975), the Court recognized that defendants in a state criminal trial have a constitutional right, under the Sixth Amendment, to proceed without counsel provided they voluntarily and intelligently elect to do so. The Court noted: "To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense." Faretta, 422 U.S. at 834.

Nearly a decade later, in McKaskle v. Wiggins, 465 U.S. 168 (1984), the Court reiterated the broad scope of protection the Sixth Amendment grants to the pro se defendant:

Wiggins, 465 U.S. at 174 (emphasis added). These rights, the Court stressed, formed the core of a defendant's right of self-representation, and were shielded from judicial interference by the Sixth Amendment. Id. at 177.

This fundamental understanding of the right to self-representation was thwarted by the trial court below. Even if Mr. Jamal was "unable to properly conduct voir dire," Abu-Jamal, 720 A.2d at 109, which is not supported by the record below, this would not be a proper basis for ordering back-up counsel to take over. In Faretta, the Court "made no assessment" of the defendant's knowledge of state rules "govern[ing] challenges of potential jurors on voir dire." 422 U.S. at 836. The Court held that a defendant's "technical legal knowledge" is irrelevant to a trial court's determination of whether he may represent himself. Id. This holding has been the touchstone of the Sixth Amendment right to self-representation for nearly a quarter century. [4] Equally, the trial court's concern over prospective jurors being "uncomfortable" or shaken by Mr. Jamal's questioning was insufficient to justify stripping him of his Sixth Amendment right to self-representation. Such discomfort cannot serve to outweigh the fundamental rights guaranteed to criminal defendants by the Sixth Amendment. Cf. Coy v. Iowa, 487 U.S. 1012, 1020-22 (1988)(holding that child's discomfort at having to testify at trial of defendant accused of molesting her did not justify limitation on defendant's 6th Amendment confrontation clause rights).

If a trial court was permitted to limit a defendant's right to self-representation in order for the prospective jurors to feel more comfortable in the voir dire, there would be no stopping point. A juror who felt "uncomfortable" with Mr. Jamal conducting the voir dire may well be uncomfortable with his opening statement, his questioning of witnesses, his objections to the state's questions, and his summation. The jury, in sum, could be "uncomfortable" with a pro se defendant conducting his own defense at any point in the trial. In this way, taking the trial court's justification to its logical end would result in a complete abrogation of a defendant's pro se rights. Faretta absolutely prohibits such a result.

Moreover, the trial court's actions in stripping Mr. Jamal of his right to self-representation cannot be justified on the basis that he had the choice of letting his back-up counsel or the court conduct voir dire. While the trial court had the discretion either to allow counsel to conduct voir dire or itself conduct voir dire, [5] the court could not decide who that counsel should be. This is, in essence, what the court did to Mr. Jamal by telling him that he had to relinquish his right to self-representation and let back-up counsel perform voir dire.

II. PETITIONER'S FORCED REMOVAL FROM SIGNIFICANT PORTIONS OF HIS CAPITAL TRIAL VIOLATED HIS RIGHT TO SELF- REPRESENTATION, TO ASSIST IN HIS DEFENSE, AND TO CONFRONT THE PROSECUTION'S WITNESSES.

Mr. Jamal, like all criminal defendants, was endowed with the right to be present at all critical stages of his trial. See Faretta, 422 U.S. at 819-21. Further, that right is not waivable in capital cases. See Diaz v. United States, 223 U.S. 442, 455 (1912); Lewis v. United States, 146 U.S. 370, 372-74 (1892); Hopt v. Utah, 110 U.S. 574, 578-79 (1884). Even if it were waivable, Mr. Jamal's forced removal from his trial was unconstitutional because: (1) all alleged "disruptions" involved Mr. Jamal's protests against abridgement of his right to self-representation; and (2) even if these removals were justified, they were not appropriately tailored to protect his constitutional right to communicate with counsel and otherwise meaningfully participate in his own defense.

Mr. Jamal was absent either totally or for portions of the trial day on June 18, 22, 23, 24, 25, 26 and 28. In each instance when he was ejected from the courtroom, Mr. Jamal was deemed to be "disruptive" in persistently protesting his inability to represent himself. Mr. Jamal disputed the characterization that he was disruptive or unruly. The court's decision to expel Mr. Jamal from the courtroom based on these "disruptions" was improper.

This situation is analogous to the issue addressed by the court of appeals in United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972). In Dougherty, the defendants had sought permission to proceed pro se and the trial court denied their request. On appeal, the government argued that the "'disruptive' incidents following the denial of the pro se motions" provided the trial court with justification for the denial. The court of appeals rejected this boot-strapping logic, likening it to "using the fruit of an unreasonable search to provide a cause making the search reasonable." Dougherty, 473 F.2d at 1126. The court of appeals further reasoned: "Nearly all of the incidents cited by the Government concerned assertions of the right to self-representation. It would be anomalous to hold that the denial of one's right can be justified by reference to the nature of subsequent complaints protesting this denial." Id.

The circumstances here are even more compelling than in Dougherty, for these proceedings were a matter of life or death. Moreover, the so-called disruptions and outbursts all followed the court's denial of Mr. Jamal's pro se rights.

Critically, what is at stake here is far different from the situation that confronted the Court in Illinois v. Allen, 397 U.S. 337 (1970). In Allen, the Court was faced with a defendant who in all likelihood had a "diseased mind" which led to his disruptions in court. Id. at 355 (Douglas, J, concurring). Here, Mr. Jamal was a highly-intelligent defendant, a journalist by profession. His conduct was predicated upon his understanding of life or death consequences attached to his own active involvement and the assistance of someone whom he trusted. Indeed, Justice Douglas presciently observed that the "diseased mind" of the defendant in Allen had to be distinguished from a defendant, such as Mr. Jamal, who "was insisting on his constitutional rights, albeit vociferously . . . ." Id.

Apart from the question whether the trial court was justified in removing Mr. Jamal from the courtroom is the issue of whether the court was obligated to provide remedial measures to ensure that Mr. Jamal could contemporaneously monitor the trial proceedings and promptly communicate with back-up counsel.

The Court has never given guidance to the lower courts on this question, but it was flagged by Justice Brennan in his concurrence in Allen. He advised that when a defendant is removed from the courtroom,

Some lower courts have made "reasonable efforts" to mitigate the effect of forced removal. See, e.g., Stewart v. Corbin, 850 F.2d 492, 499-500 (9th Cir. 1988) (defendant offered a room where he could hear the proceedings); United States v. Munn, 507 F.2d 563, 567 (10th Cir. 1974) (defendant "was able to hear the progress of his trial through a broadcast system"); United States v. Washington, 705 F.2d 489, 497 n. 4 (D.C. Cir. 1983)(closed circuit television). But there is no indication that the trial court below considered or deployed any such remedial measures. Instead, once Mr. Jamal was removed from the courtroom, he was severed totally from any meaningful participation or knowledge of the proceedings.

The state supreme court commented that there was "at least some indication . . . in the record" that back-up counsel communicated with Mr. Jamal about what happened in court. Abu-Jamal, 720 A.2d at 109-10. The cited record evidence is a single page reference in the trial transcript that only indicates that back-up counsel and Mr. Jamal talked. (6/28/82, Tr. 6.) But the fact that back-up counsel would talk to a defendant who is removed from court proceedings at the end of a day or at break-time is a given. The Court must take cert to give guidance to lower courts about what should be appropriate remedial measures to ensure a defendant's meaningful participation.

III. PETITIONER'S ABSENCE FROM AN IN CAMERA CONFERENCE, WHERE A JUROR WHOM HE HAD EXAMINED IN VOIR DIRE WAS REMOVED, VIOLATED HIS DUE PROCESS RIGHTS AS AN ACCUSED TO BE PRESENT AT ALL CRITICAL STAGES OF HIS CAPITAL TRIAL.

The Court has long held that a criminal defendant in a state felony case has a right under the Fifth, Sixth and Fourteenth Amendments to be present at all stages of his trial where "his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charges." Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105-06 (1934). The Court has even longer recognized that the right to presence in capital cases is so fundamental that the defendant cannot waive it. Hopt v. Utah, 110 U.S. at 579.

The trial court below dismissed a juror whom Mr. Jamal had examined on voir dire without his knowledge or input. The reason for denial ostensibly pertained to her violation of the order of sequestration, but it is clear from the record that the court sought back-up counsel's acquiescence on the basis that the juror was prejudiced against Mr. Jamal. Since Mr. Jamal had, in exercise of his right to self-representation, actually been responsible for examining this juror and selecting her to serve on the jury, he was in a uniquely qualified position to respond to the court's and state's claims that the juror was prejudiced against him. Cf. Kentucky v. Stincer, 482 U.S. 730, 745-46 (1987) (defendant's absence from pre-trial hearing on competency of witnesses presented not in error since defendant had no "relationship" with or "background" knowledge of witnesses that would have assisted counsel); United States v. Gagnon, 470 U.S. 522, 527 (1985)(no violation of due process because of defendants' absence from in camera discussion with juror who was upset by one of defendant's sketching his portrait; defendants "could have done nothing had they been at the conference" to assess juror's willingness to continue to serve impartially).

Mr. Jamal's due process rights are fully implicated here because of his unique interaction with the juror that would have given him a perspective on whether she harbored any prejudice against him. Nor are we talking here of an in camera conference that was a perfunctory scheduling issue or legal matter. Compare Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990) (no due process error where a defendant was absent from jury charge conference that encompassed purely legal issues) to Hopt, 110 U.S. at 579 (challenges to jurors held outside defendant's presence is constitutional violation). See also Walker v. Lockhart, 852 F.2d 379, 381-82 (8th Cir. 1988) (defendant has constitutional right to be present for in camera voir dire of jury to determine ability to serve in face of possible misconduct); United States v. Bordallo, 857 F.2d 519, 522, amended 872 F.2d 334 (9th Cir. 1988) (release of venire before voir dire began without counsel or defendant held to be error).

The state supreme court in its opinion below seemed to suggest that Mr. Jamal had waived his right to be present because at the time of the in camera proceeding he had been removed from the courtroom because of disruptive behavior. Abu-Jamal, 720 A.2d at 110. This is simply not the case. The only detriment that Mr. Jamal had suffered at that point for persisting on his right to self-representation, including back-up counsel of his choosing, was the actual loss of the right to self-representation itself. (6/17/82, Tr. 122-23.) The first time Mr. Jamal was removed from the courtroom on grounds of "disruptions" came after the in camera conference in which the juror was excused. (6/18/82, Tr. 46-47 (juror excused), 289-90 (Mr. Jamal removed)). Therefore, no express or implied waiver of Mr. Jamal's right to be present at the in camera conference is shown in the record. Cf. Gagnon, 470 U.S. at 529 (defendants' "failure to assert their rights to attend the conference with the juror," when notified by the court beforehand, "sufficed [as] waive[r]").

STEVEN W. HAWKINS*
1436 U. Street, N.W., Suite 104
Washington, DC 20009
(202) 387-3890

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

DANIEL R. WILLIAMS
Thorton & Tanenhaus
521 5th Avenue, 27th Floor
New York, NY 10175
(212) 883-1200

JONATHAN B. PIPER
Sonnenschein Nath & Rosenthal
8000 Sears Tower
Chicago, IL 60606
(312) 876-7992

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

Opinion of the Supreme Court of Pennsylvania in Commonwealth v. Abu-Jamal, 553 Pa. 485,
720 A.2d 79 (Pa. 1998).

Order of the Supreme Court of Pennsylvania Denying Application for Reargument (Nov. 25, 1998).

1 The Court has recently granted cert in Martinez v. Court of Appeal of CA No. 98-7809. Resolution of that case will directly concern the issue of a defendant's right to self-representation and is relevant to the first cert question presented in the case at bar.

2 The trial court's evident enthusiasm in removing this sworn juror contrasts sharply with the way it accommodated another juror who had to take a civil service examination. The court in that instance permitted the juror to take the examination by suspending court for a half day and even provided a court officer to escort him to the examination itself. (6/22/82, Tr. 244-45.)

3 Prior to his arrest, Mr. Jamal was a professional journalist who had reported on court cases.

4 See, e.g., Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994)("A defendant's lack of legal training, college education, skills or on-the job-training, individually or cumulatively, furnish no basis to refuse a knowing, voluntary and unequivocal waiver of one's right to counsel."); United States v. Flewitt, 874 F.2d 669, 675 (9th Cir. 1989)("the Sixth Amendment does not permit denying the defendant the right to self-representation on the basis that the defendant cannot represent himself with the degree of competence a lawyer might have").

5 Pennsylvania Rule of Criminal Procedure 1106(d) provides that "[t]he trial [court] may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination."