by C. Clark Kissinger
In his petition, Mumia Abu-Jamal asserts 29 claims of constitutional violations in his trial, sentencing, and post-conviction proceedings. These are grouped into six categories. The citing of Constitutional amendments refers to rights based on these amendments as interpreted by the courts.
I. Claims regarding the suppression, manipulation, and manufacturing of evidence.
Claim One: The State manipulated two purported eyewitnesses to falsely identify Jamal as the shooter, in violation of his Fifth, Eighth, and Fourteenth Amendments rights. Two witnesses who changed their testimony are Cynthia White and Robert Chobert.
Claim Two: The State suppressed evidence that the true shooter fled, in violation of the Fifth, Eighth And Fourteenth Amendments. Witnesses with evidence to someone fleeing the scene included: Robert Chobert, Veronica Jones, William Singletary (an eyewitness to the shooting), Arnold Howard and the physical evidence of the fleeing man, Dessie Hightower (a defense eyewitness to the fleeing man called at trial), Deborah Kordansky (another eyewitness to the fleeing man), and William Cook (Jamal's brother).
Claim Three: Jamal was found guilty and sentenced to death through the use of a fabricated confession, in violation of the Fifth, Eighth and Fourteenth Amendments. Two months after the shooting, police officers suddenly "remembered" hearing Jamal confess that night.
Claim Four: The State destroyed critical physical evidence, manipulated and misrepresented the ballistics and medical evidence, and suppressed crime scene test results, in violation of the Fifth, Eighth, And Fourteenth Amendments. This includes a discarded bullet fragment, failure to conduct routine ballistics tests, and the fact that the jury never saw the medical examiners report stating "shot by .44 cal."
Claim Five: The Commonwealth failed to disclose government political surveillance files demonstrating longstanding police bias against Jamal, in violation of the Fifth, Eighth and Fourteenth Amendments. This includes 600 pages of FBI files documenting surveillance of Jamal by the Philadelphia police.
II. Claims regarding the inadequacy of counsel during the guilt phase of the trial.
Claim Six: Jamal was deprived of his Constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments due to defense counsel's prejudicially deficient performance during the guilt phase. Problems with the performance of Anthony Jackson include:
A. Jackson's lack of experience in capital litigation and recent entry into criminal practice;
B. Jackson's deficient performance during the pretrial phase: 1. During the Initial Stages of the Pretrial Phase: 2. Counsel's Failure to Obtain the Services of Experts and an Investigator: 3. Jackson's Deficient Pretrial Preparation and Jamal's Decision to Proceed Pro Se;
C. Jackson's failures at trial:
1. Counsel's Failure to Obtain Experts Resulted in The Jury Having a Distorted View of the Physical Evidence in the Case (the prejudice caused by failing to obtain a Pathologist and a Ballistics Expert): 2. Counsel's Failure to Retain an Investigator Resulted in the Jury Having a Distorted View of the Eyewitness Accounts: 3. Counsel's Failure to Prepare for Trial Resulted in the Jury Not Hearing Highly Favorable Evidence to the Defense, but Being Exposed to Evidence That Was Deeply Prejudicial
Claim Seven: The prosecution's case was never placed within the crucible of meaningful adversarial testing due to the court-created conflict of interest between counsel and client, thus violating his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The court stripped Jamal of his right to represent himself, and at the same time forced an ill-prepared counsel to conduct an inadequate defense. The conflict between the defendant and the appointed counsel was court created. As a result the prosecution case was never really tested before the jury.
Claim Eight: The trial court denied Jamal the ability to defend himself by denying the funds needed to retain necessary services of experts and an investigator, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. This includes the issue of a ballistics expert, a medical expert, and a defense investigator.
III. Claims regarding the manner in which the trial and direct appeal were conducted.
Claim Nine: The court's denial of a continuance precluded Jamal from presenting critical defense evidence, in violation of the Fifth, Eighth, and Fourteenth Amendments. The court refused to give the defense a day to find Officer Wakshul who wrote in his report that Mumia had made no statements at the hospital.
Claim Ten: The court impermissibly restricted the elicitation of material evidence favorable to the defense, in violation of the Fifth, Eighth, and Fourteenth Amendments. This pertains to restrictions on the examination of Veronica Jones and Robert Chobert
Claim Eleven: The Court unconstitutionally stripped Jamal of his right to self-representation by ruling that Jamal had to let the Court or back-up counsel conduct the jury selection, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments.
Claim Twelve: The Court's forced removal of Jamal from significant portions of his capital trial violated his Fifth, Eighth, and Fourteenth Amendment rights. There were not provisions made for Jamal to follow events in the court as they happened, even though he was on trial for his life.
Claim Thirteen: Jamal's absence from two conferences in the judge's chambers violated his Fifth, Sixth, Eighth, and Fourteenth Amendment Rights. The June 18th in camera conference was regarding the removal of Juror Dawley, who replaced by an alternate who had previously indicated a bias in the case. The June 28th in camera conference was regarding the shooting of Jamal. Here the judge would not allow the questioning of police officers in open court on the question of how Jamal was shot.
Claim Fourteen: The Prosecutor's improper guilt phase summation violated the Fifth, Eighth and Fourteenth Amendments. The prosecutor misrepresented the "reasonable doubt" standard, implied guilt from Jamal refusal to testify under the conditions of this trial, and vouched for the veracity of a key witness while knowing the motivation that that witness had to lie.
Claim Fifteen: Jamal's Constitutional rights were violated the deficient performance of appellate counsel. Jamal's court appointed counsel for his direct appeal failed to raise key issues, and did not even have a complete copy of the trial record.
IV. Claims regarding the selection of the jury and improper jury procedures.
Claim Sixteen: The State's racially discriminatory exercise of peremptory challenges violated the Fifth, Sixth, and Fourteenth Amendments. Jamal has established a prima facie violation of Batson and Swain (the Supreme Court cases barring the use of peremptory challenges to removed jurors on the basis of race). Also the evidence on the systematic exclusion of Black jurors in Philadelphia.
Claim Seventeen: The trial court unconstitutionally responded to a juror's request without notifying the defense, and then engineered this juror's removal, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments. The court refused to allow a Black juror to seek treatment for a sick pet after court hours, but then postpone a court session to allow a white juror to take a civil service exam.
Claim Eighteen: The court refused to excuse for cause a palpably unfit and biased juror, in violation of the Fifth, Eighth and Fourteenth Amendments. Alternate juror Edward Courchain was seated in place of Jeanie Dawley who was removed, even though Couchain had stated during the jury selection process that he would not be able to judge the facts in an objective manner because of his exposure to news media accounts.
Claim Nineteen: Some jurors engaged in secret, premature deliberations during the course of the trial, in violation of the Fifth, Eighth, and Fourteenth Amendments. This pertains to three white jurors who met together in a hotel room.
Claim Twenty: Jamal's jury was drawn from a pool that was composed in violation of the Fifth, Eighth and Fourteenth Amendments. Juries in Philadelphia are drawn from different geographical areas on a rotating basis which strongly effects their racial composition.
V. Claims regarding the penalty phase of the trial.
Claim Twenty-One: Jamal was deprived of his Constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments due to trial counsel's prejudicially deficient performance during the penalty phase. The defense counsel made no preparation for the penalty phase and failed to call a single witness in mitigation (witnesses for why Jamal should not receive the death penalty. Instead, Jackson literally called people from the audience as character witnesses without even talking to them first.
Claim Twenty-Two: Jamal's Constitutional rights were violated by the prosecution's use of his affiliation with the Black Panther Party (years earlier) to argue for the Death Penalty. This type of argument for the death penalty (the citing of political speech and affiliation) was subsequently outlawed by the U.S. Supreme Court.
Claim Twenty-Three: Jamal's Constitutional rights were violated by the prosecutor's improper penalty phase closing. The prosecutor tried to convince the jury that the ultimate responsibility for Jamal's fate would lie with appellate courts, and not with them (thus making it seem easier to vote for the death penalty).
Claim Twenty-Four: The State unconstitutionally withheld relevant evidence in mitigation in violation of the Fifth, Eighth and Fourteenth Amendments. This refers to the withholding of the police surveillance files that showed no criminal conduct by Jamal during years of surveillance.
Claim Twenty-Five: The jury was unconstitutionally led to believe that any findings of mitigating circumstances required unanimous jury action. The jury was given a form on which to list "mitigating" and "aggravating" circumstances for determining whether the death sentence should be applied. The form did not make clear that aggravating circumstances required unanimous agreement, while mitigating circumstances required only a majority.
Claim Twenty-Six: Jamal's Constitutional rights were violated by the jury's confusion on whether life imprisonment meant without the possibility of parole. The defense counsel was cut off by the court in his remarks so as to give the impression to the jury that some people who are sentenced to life in prison are out in just a few years.
Claim Twenty-Seven: Jamal's death sentence is itself unconstitutional under evolving standards of decency. Here international law is cited in addition the call by the American Bar Association for a moratorium on executions.
Claim Twenty-Eight: Jamal was sentenced to death due to the constitutionally impermissible factor of racial discrimination in violation of the Fifth, Eighth, And Fourteenth Amendments. This deals with Pennsylvania's record of sentencing Black people to death in far greater numbers than their percentage of the population.
VI. Claim regarding the conduct of the post-conviction proceedings.
Claim Twenty-Nine: Jamal was denied due process by an unfair State post-conviction hearing proceeding. The judge (Sabo) who conducted the hearings for a new trial, was the same judge who conducted the original trial. Sabo's display of bias and hostility were dramatic. His deep-rooted biases infected his fact findings and required his recusal (stepping down from the case). The same is true for Justice Ronald D. Castille of the Pennsylvania Supreme Court.
To read the full text of the petition on the internet, go to http://www.refuseandresist.org /mumia/101699petitiontoc.html
[posted 12/3/99]
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