INTRODUCTION
Petitioner Mumia Abu-Jamal filed a 683 paragraphed Petition for Habeas Corpus Relief, itemizing the essential and background facts supporting his contention that his trial (both the guilt and penalty phase) was unfair. Had the trial been fair, evidence undermining the prosecution's vulnerable theory of guilt and evidence supporting a powerful defense theory of innocence would have been presented for jury consideration. Had the trial been fair, evidence justifying a "life" verdict (assuming the case would have even reached the penalty phase) would have exposed the caricature presented by the trial prosecutor to secure a "death" verdict.
The Commonwealth begs off the uncomfortable task of confronting the details of this case - "for the sake of clarity," it claims - by refusing to issue an Answer to the Petition. While a detailed Answer, with appropriate admissions and denials, typically serves to clarify the controversy in litigation, the Commonwealth's avoidance of the details of the case, when considered in conjunction with its submitted memoranda, reveals that it plainly cannot account for the stunning evidence indicating that the jury's guilt and penalty verdicts are totally unreliable. [1]
The Commonwealth's approach in this litigation, which is but a repeat of its approach in the state-court PCRA process, reveals a three-pronged strategy: launch ad hominem attacks upon defense counsel, distort the record on the assumption that it will never be read, and blame Jamal for the travesty of the trial process. Attacks upon counsel, of course, are no substitute for legal analysis. With respect to the record, this Court has plenary authority, as an Article III court, to review the state court record to fulfill its obligations to ensure compliance with the United States Constitution (an obligation untouched by the AEDPA). Finally, the evidence shows that Jamal was a victim of an unfair trial process, not the source of that unfairness.
I. THE COMMONWEALTH'S OMISSIONS AND DISTORTIONS REGARDING THE FACT-WITNESSES
The Commonwealth's Memorandum #1 opens, in the very first paragraph, with two blatant falsehoods. First, the Commonwealth asserts that "[s]everal eyewitnesses" - later specified to be four such witnesses - saw Jamal kill Officer Daniel Faulkner. (Mem. #1 at 9, 12) Second, the Commonwealth claims that Jamal "tried to shoot the arriving police officers." (Id. at 9) Both assertions are palpably false.
The latter point should be dispensed with first, as it is a cheap shot injected into this litigation solely to inflame. The prosecutor at trial never even insinuated that Jamal had attempted to shoot the arriving police officers -- a revealing fact, given his otherwise unrestrained argumentation in both the guilt and penalty phases -- and for good reason. First, no witness ever testified that Jamal "tried to shoot the arriving officers." Second, throughout this case, the prosecution has maintained that all five chambers of Jamal's gun were empty when police arrived at the scene. On the prosecution's own theory of guilt, Jamal had no rounds with which to shoot anyone. [2]
As for the "four eyewitnesses," the Commonwealth omits any mention of the following indisputable facts concerning witness descriptions of the physical attributes of the shooter:
These witnesses, to be sure, saw Jamal briskly walk and then run across Locust St. towards the scene where Officer Faulkner and Billy Cook were engaged in a scuffle. This aspect of the incident was never in dispute. The key event, however, was the shooting of Jamal. If Jamal was shot first by a frightened Officer Faulkner and fell to the ground (which is strongly suggested by the evidence), the witnesses (with the exception of Cynthia White) would have mistakenly assumed that a third civilian (a passenger in the Volkswagen) who was short and heavy-set with an Afro hairstyle was the same man who had darted across Locust. Upon that mistaken assumption, the witnesses could harbor the impression that the Locust St. runner (Jamal) was also the shooter.
Witness Scanlan's testimony illuminates the point. Although he testified that the man running across Locust brandished a gun, he later admitted that this was an "assumption" on his part. He assumed Jamal brandished a gun because he assumed that the man running across the street was the shooter. The assumption operated so compellingly in his mind that he initially testified to the brandishing of the gun as a statement of fact.
Scanlan appropriately described the events as awash in confusion. In the darkened night, with the red flashing turret light blurring the scene, Jamal's rapid elimination from view by virtue of a gunshot wound could easily have been missed. And indeed, such is the case. None of the witnesses who claimed to see the shooting of Officer Faulkner, and the events immediately leading up to that shooting, can account for Jamal's gunshot wound. The explanation, however, is clear: Jamal was shot earlier in the episode, before attention was riveted to the scene by the eruption of gunfire, and was displaced by a third civilian who was likely angered by Officer Faulkner's quick use of deadly force. The witnesses never saw Officer Faulkner fire at the actual shooter because the actual shooter was never shot.
That the actual shooter was never hit by gunfire from Officer Faulkner's gun is not only confirmed by eyewitness accounts of the shooting itself; it is confirmed by what five independent eyewitnesses observed in the immediate wake of the shooting. Here, too, the Commonwealth's truncated narrative omits critical facts. The Commonwealth, for example, states that Chobert's account given at the scene comported with his trial account. This is patent nonsense. Chobert explicitly told authorities that the shooter "ran away." (6/1/82 Tr. 70) Although Jamal was found slouched on a curb within a few feet of the slain officer, Chobert directed the police's attention to the path of the shooter's flight: eastbound on Locust, where a nearby alleyway provided an easy escape route for the actual shooter. Precisely because the shooter "ran away" after firing at the officer, Chobert felt safe to leave his cab and walk towards the slain officer before the police arrived. Chobert never told police on December 9, 1981, that the shooter walked or stumbled the few feet to the curb where Jamal was ultimately found by arriving officers. He had told police the shooter "ran away." That characterization of the shooter's immediate response after the shooting exonerates Jamal, as it is undisputed that Jamal was in no condition to run (and did not run from the scene to any degree). Consequently, Chobert's trial testimony, wherein he recanted this claim that the shooter "ran away," was devastating to the defense.
The fact that Chobert claimed that the police apprehended the fleeing shooter is both understandable and insignificant. Because Chobert believed he had made an accurate identification of the shooter after the police arrived at the scene, he assumed that the fleeing shooter had been apprehended. The important point here, which the Commonwealth ignores, is Chobert's impression that the shooter was apprehended while running away, which is an impression that is dictated by his belief that he had made a positive identification. [5]
As for the other witnesses to flight, the Commonwealth attempts unsuccessfully to defuse the following facts:
The Commonwealth deflects the analysis towards the irrelevant issue of whether Hightower passed a polygraph examination where flight was never broached as a topic. The fact that Hightower was the only eyewitness subject to a polygraph examination, without explanation, is the relevant point, as it suggests that investigators sought to discredit a witness who was unwilling to retract, or at the least, water down, his account. [6]
The Commonwealth submits that Hightower has somehow altered his position and asserted that he saw a man running from the scene before the police arrived. (Mem. #1 at 26) A glance at his trial testimony proves the point: "after I seen the person [run away] . . . about maybe ten seconds later, that's when the first officer came on the scene. . . . (7/28/82 Tr. 126-27)(emphasis added) He then reiterated this fact on the very next question. That ten-second gap was more than enough time for a fleeing shooter to run the thirty steps and reach the nearby alleyway.
Kordansky was hostile to the defense, even as far back as 1982. She had told trial counsel that she had an aversion towards black men, having been raped by a black man in the late seventies. The Commonwealth dispenses with Kordansky with the postulate that she may have told police about a man running towards the scene after the police arrived. Contrary to the Commonwealth's claims, Kordansky repeatedly resisted the prosecution's suggestion that he was running toward the arriving police, and insisted that her best recollection was that the man was running eastward. (8/3/95 Tr. 253-54)
The Commonwealth never attempts to explain why Kordansky would bother to tell police the manifestly irrelevant detail about a person running towards police already at the crime scene. Moreover, it makes no sense for the police, who were, presumably, highly interested in determining the identity of the shooter, to record such irrelevant material in a police interview statement (while omitting any mention of a confession in all the police reports relating to the homicide investigation). In fact, Kordansky came down from her hotel room and voluntarily provided an account to the police at the crime scene; her only reason for doing so was to help in the apprehension of the shooter. There was a reason defense counsel at trial desperately wanted Kordansky to appear: she bolstered the defense theory that the shooter had fled immediately after the shooting, a claim that Hightower, Chobert, and Veronica Jones supported in their initial statements to the police.
The Commonwealth continues its silence regarding the highly suspicious fact that this supposedly irrelevant bystander who saw nothing of consequence received so much police attention at a time when resources were at a premium (again, while a damning confession allegedly fell through the investigative cracks). [7]
Nor has the Commonwealth been able to suggest why this witness, with a stable background, no criminal record and no bias against law enforcement, would inject himself into this case and proffer palpably false testimony. Its own police witness testified that he knew Singletary to be a respectable businessman who had no bias against police, and that there was "nothing unusual" about Singletary. (8/14/95 Tr. 28-29) [8]
Finally, the Commonwealth has no answer to the fact that Singletary was the only witness who accurately described Jamal's pants as green Arab-style "harem" pants, "long and flowing," with "elastic in the ankle." (8/11/95 Tr. 279) While the Commonwealth insinuates that this description is far-fetched (Mem. #1 at 32), it is actually accurate (Chobert, by contrast, identified the shooter as wearing jeans, which is patently wrong) -- a fact that can be verified by simply examining the pants.
The Commonwealth blatantly ignores crucial testimony given by a Philadelphia law enforcement witness at the 1996 supplemental PCRA hearing. Det. Daniel Bennett (now retired) testified that he and another detective interviewed Jones at her mother's home six days after the shooting. The visit was unannounced in advance, and Jones appeared to Det. Bennett to be lucid and clear-headed. Det. Bennett memorialized the interview with Jones in a standard police interview form. When asked to explain the thrust of Jones's account during that interview, Det. Bennett explained that Jones had described seeing two persons running away from the scene. (10/2/96 Tr. 252, 257) Det. Bennett was "positive" that Jones was describing flight away, not towards, the crime scene. (Id.) [9]
The Commonwealth nonetheless insists, without evidentiary support, that Jones's account of what she saw, as memorialized in Det. Bennett's report, indicates that two men were running towards the scene of the shooting. That Det. Bennett, the person who would know best, disavows such an interpretation of Jones's rendition of what she observed figures not at all in the Commonwealth's treatment of the record.
Finally, in a brief submitted by the Commonwealth during the PCRA proceedings, the Commonwealth agreed that Jones had "retracted her earlier statement that she had seen someone running from the scene." (Com. Br. 83)(emphasis added.) [10]
II. THE EVIDENCE CONCERNING STATE MANIPULATION AND SUPPRESSION OF EVIDENCE CONCERNING FLIGHT FROM THE CRIME SCENE
The Unlicensed Cabdriver Robert Chobert: As to whether the Commonwealth wrongfully suppressed evidence concerning a colloquy between Chobert and the prosecutor, the Commonwealth points to Chobert's self-serving testimony that there was no "deal." (Mem. #1 at 48) Obviously, as shown in Petitioner's December 6, 1999 Memorandum, the legal analysis does not hinge upon formalistic labeling (whether an arrangement is properly denominated a "deal" or an "agreement" is of no constitutional moment), let alone a lay witness's characterization. (See Petitioner's 12/6/99 Mem. at 36-39) The key factual issue, which a jury was entitled to evaluate, was Chobert's state of mind, and how the colloquy may have affected it. In that regard, evidence that Chobert took the initiative in seeking assistance from the prosecutor suggests that he could have been influenced by the trial prosecutor's willingness to help him on a matter he regarded as important. Moreover, regardless whether such assistance was forthcoming, the fact is that Chobert believed the trial prosecutor was intending to assist him. This array of evidence receives no treatment by the Commonwealth.
The Commonwealth also speculates that the colloquy may have occurred after Chobert testified. The evidence shows that after Chobert testified, he ceased having any dealings with the trial prosecutor, as the trial prosecutor "just came over and shook my hand and said thank you and left." (8/15/95 Tr. at 28) The colloquy at issue here, the evidence reveals, occurred before Chobert testified.
This evidence that Chobert reached out to the prosecutor, and the prosecutor gave him the impression that assistance was forthcoming, cannot be evaluated in the abstract - something the Commonwealth attempts to do. It is a matter of record that Chobert recanted his initial report to the police that the shooter "ran away." It is also a matter of record that Jamal, injured with a gunshot wound and slouched on the curb within a few feet of the slain officer, could not have been the person Chobert saw running away. Chobert claimed that his trial testimony constituted a correction to a "mistake" he made in his account to crime scene investigators. Chobert's colloquy with the trial prosecutor - whether labeled a "deal" or an "agreement" - suggests that Chobert's testimonial turnabout was something other than that.
The Two Prostitutes -- Cynthia White and Veronica Jones: The Commonwealth denies that law enforcement issued promises and favors to Cynthia White, the prostitute. Although the Commonwealth seemingly relishes insinuating that Jamal's post-conviction counsel are willing to manufacture evidence to support a theory of innocence, the incontrovertible fact remains that evidence of police manipulation of White surfaced, to the astonishment of everyone, at the 1982 trial through the testimony of Veronica Jones. Jones blurted out to an unexpecting defense counsel:
They were getting on me telling me I was in the area and I seen Mumia, you know, do it, you know, intentionally. They were trying to get me to say something that the other girl saId. I couldn't do it. . . . I guess they expected me to say something in their behalf, you know, but I couldn't. I just saw what I saw. . . . It more so came about when we had brought up Cynthia's name and they told us we can work the area if we tell them. (Tr. 6/29/82: 129, 132, 135-36.) [11]
The Commonwealth does not contest the fact that it never disclosed that law enforcement had offered such inducements to White and Jones. Instead, the Commonwealth argues that "petitioner knew of this allegation by Jones at the time of his trial." (Mem. #1 at 50) That such Brady material surfaced, but was never developed, in the midst of trial does not eclipse the constitutional force of Jamal's contention here. In fact, it reinforces it.
The Commonwealth also overlooks the fact that Jones is not a witness who simply comes out of the proverbial "woodwork" to provide testimony years later. She had indisputably recanted her earlier claim that two people ran from the scene, a devastating blow to the defense, as the trial minutes reveal. As with Chobert, this recantation cried out for explanation. Her 1996 testimony provides it. In essence, the Commonwealth is comfortable leaving unexplained the fact that Chobert and Jones recanted at trial a point that was vital to the defense. Such comfort, however, comes at the expense of ignoring the newly-discovered evidence which is set forth in the Petition.
The Driver's License Found On Faulkner's Person: The Commonwealth concedes that a driver's license form was found inside the slain officer's pants pocket. (Mem. #1 at 35) The form belonged to one Arnold Howard, who testified at the PCRA proceedings that he had given the form to Billy Cook's business associate, Kenneth Freeman. The Commonwealth never disclosed that this document was found on Officer Faulkner's person. Indeed, there is no mention at all of this document in the property receipt for the officer's clothes, or anywhere else in the disclosed police reports. Although the Commonwealth in the PCRA proceedings did not contest the fact that this information was never disclosed before, it now asserts for the first time that Jamal "finds it convenient to assume that this fact was not disclosed." (Mem. #1 at 56) Significantly, the Commonwealth is unwilling to deny that this information was withheld, preferring instead to play a nonsensical word-game, asserting that this aspect of the Petition rests on "nothing more than an assumption." (Id.) [12]
That this information was withheld is no assumption; it is a fact. Moreover, it is a fact specified explicitly in the Petition. The Commonwealth refuses to issue a detailed answer to that Petition. Its disingenuous handling of this particular issue reveals why: rather than admit uncomfortable facts supporting the Petition, the Commonwealth prefers argumentation that obfuscates the issues. [13]
III. THE FABRICATED CONFESSION AND THE COMMONWEALTH'S ABSURD CONTENTION THAT WAKSHUL WAS A WITNESS FAVORABLE TO THE PROSECUTION
The Commonwealth continues to insist, with apparent shamelessness, that P.O. Gary Wakshul would have been a favorable prosecution witness, and that, therefore, defense counsel's failure to secure his attendance actually benefitted Jamal. (Mem. #1 at 62) This contention, which has a "twilight-zone" quality to it, was relied upon by Judge Sabo in denying PCRA relief. More than any other aspect of this case, Judge Sabo's handling of this issue, which was nothing more than the verbatim borrowing of the Commonwealth's handling of the issue, exposes the futility of the PCRA litigation.
To begin with, the Commonwealth never mentions the central fact upon which Jamal's Petition hinges (vis a vis Wakshul's non-attendance): Wakshul signed a report, prepared within an hour or so after two witnesses claimed to have heard Jamal boast about killing the officer, indicating that "the negro male made no comments." No genuine and good faith consideration of the issue can proceed with such a glaring omission. The most the Commonwealth can say - and it is a blatant falsehood - is that Wakshul "fail[ed] to mention the admission in his first report." (Mem. #1 at 62)
Wakshul did not "fail[] to mention the admission in his first report." He stated the opposite of what the prosecution witnesses claimed, affirmatively refuting that an inculpatory admission was ever made. Judge Sabo, at trial, attempted the same sort of legerdemain with defense counsel, suggesting that Wakshul simply failed to mention a confession. Defense counsel rightly argued that Wakshul's report is significant because it affirmatively establishes that Jamal never confessed. It is palpably unfair to characterize the evidence as indicating only an omission.
Furthermore, the Commonwealth simply ignores the fact that Wakshul again disavowed that a confession was made in a second report. Wakshul, a week after his first report, was asked to provide the interviewer with any additional information pertaining to the case. In response, Wakshul claimed he could think of nothing else, other than what he already provided. What he provided over the course of two interviews, the PCRA record amply reveals, was a vast array of highly detailed, and in many respects, trivial, information. Through it all, this officer, cognitively and emotionally equipped to provide detailed information to investigating detectives, stated that Jamal never admitted to anything.
Yet, the Commonwealth still argues that Wakshul is a favorable witness to the prosecution. Why? Because over two months after the fact, Wakshul told an IAB investigator (not a homicide investigator), for the first time, that Jamal did indeed confess in precisely the fashion described by the two trial witnesses. Omitted completely from the Commonwealth's submissions, however, is Wakshul's explanation for withholding this information: he claimed that he had not realized the confession's "importance" until that moment. No rational juror would find this explanation, especially in view of the two earlier reports, even remotely credible. That the Commonwealth actually takes the position that Wakshul would have enhanced the prosecution's case is too puzzling to comprehend.
Other distortions of the record further undermine the Commonwealth's handling of this issue. First, it wrongly asserts that trial witness P.O. Garry Bell "did not report [Jamal's] confession for several weeks. . . ." (Mem. #1 at 61) Actually, he reported it two months later, not "several weeks" later. Further, unmentioned in the Commonwealth's submissions is the fact that Bell had given a police interview on December 16, 1982 (a week after the shooting and the purported confession), where he admittedly said nothing about any statement from Jamal. Similarly, hospital security guard Priscilla Durham never transmitted this information to any law enforcement person for three months, and did so only after Officers Bell and Wakshul suspiciously went on record concerning the purported confession after IAB began its investigation into Jamal's police brutality allegations.
Second, the Commonwealth even implies that Wakshul's partner, P.O. Stephen Trombetta, heard the confession. (Mem. #1 at 71) This is patently false, as his signed report, prepared within hours of the alleged confession, also affirmatively stated that Jamal had said nothing. Again, the record does not indicate a simple omission; Trombetta's report affirmatively refutes the prosecution's "confession" claim. The only way the Commonwealth can substantiate that Trombetta heard the confession, in the face of his police report, is to propagate the absurdity that he, too, did not recognize the "importance" of the confession, and hence did not report it. Third, the Commonwealth acts as if proof existed substantiating Durham's self-serving claim that she reported the confession to a hospital colleague the following day. In fact, there was no such proof, except for a typewritten document that Durham could not authenticate and that Judge Sabo should never have allowed into evidence. [14]
Finally, the Commonwealth claims that Judge Sabo did not unreasonably deny the defense a brief continuance (even to permit a phone call to Wakshul's home, where he in fact was at the time) in order to secure his attendance because the defense had "attempted to ambush the prosecution" by keeping secret its intention to call this witness. This contention is misplaced for two reasons. First, the prosecutor surely knew that Wakshul would have been high on any competent criminal defense lawyer's list of witnesses to call. The notion that the decision to call Wakshul was an "ambush" move absurdly assumes that the prosecutor had no expectation that such a move would be made. Second, the record refutes the claim. The trial record shows that defense counsel was in a state of distress over this lapse in his preparation, and thus pleading with the trial judge to show some understanding. He explained that he was simply overwhelmed by the unexpected task of handling Jamal's trial: "I was forced to try and remember everything that everybody said and I couldn't do it." (7/1/82 Tr. 34) Judge Sabo was singularly unmoved, telling Jamal that he and his attorney had "goofed." (7/1/82 Tr. 38)
IV. DEFENSE COUNSEL'S INEFFECTIVENESS IN THE GUILT PHASE
The Commonwealth's principle contention here is that Jamal "decided his own trial strategy" (Mem. #1 at 68), thus absolving Anthony Jackson of constitutional blame for his deficient representation. Judge Sabo, following the Commonwealth's lead, denied Jamal's constitutional ineffective assistance claim with broad-brush findings that Jamal was in "control" over his own case. As shown in Petitioner's January 20, 2000 Memorandum, the basis in the record for the "Jamal-was-in-control" thesis is nothing more than questions asked of Jackson in the PCRA proceedings. Jackson emphatically and repeatedly rejected even the insinuation that Jamal controlled the manner in which the defense proceeded. (7/27/95 Tr. 76, 139, 140-41) Jackson testified:
Well, let me just tell you this, Mr. Grant, and I am going to try to tell you for the last time. I have been practicing law for a long time. At no time, at no time that I know of I haven't been in control, when I was a lawyer. Those times that I wasn't, I went to the Supreme Court. I told them let me out [of the case]. Then they told me to be a backup counsel. That's when I wasn't in control. I wouldn't do it because I wasn't in control. That's what this whole thing was about.
But for some reason you seem to think Mr. Jamal was in control. Mr. Jamal was in control when he got the Commonwealth to respond to some political thing. When I was the lawyer I was the lawyer, I was doing what I wanted to do. When Mr. Jamal wanted me to do something I said Your Honor, Mr. Jamal wants me to do this. Mr. Jamal is ordering me to do this. If I didn't preface my remark that way, I was in control. (7/28/95 Tr. 131-32)
The Commonwealth's contention, like Judge Sabo's factfindings on this score, simply cannot withstand scrutiny. The Commonwealth places heavy reliance on the supposition that Jamal "personally decided what witnesses would be called on his behalf." (Mem. #1 at 68) Yet, the only citation to the record in support concerns the presentation of character witnesses. Two points deserve mention here. First, the character witnesses added very little to the trial, not because they had little to say about Jamal, but because Pennsylvania's evidence rules concerning character evidence severely limited the parameters of their testimony. Consequently, each of the character witnesses' testimony, on direct examination, typically consumed a mere page and a half to two pages in the trial transcripts. The testimony was rendered in rote fashion, with each witness stating perfunctorily that Jamal had a reputation for peaceableness. Thus, to the extent Jamal had any control over this aspect of the case, it mattered little in the overall scheme of the trial.
Second, it means nothing that Jamal decided who to call as character witnesses, even leaving aside the limited nature of their testimony. It is not at all unusual for a client to inform his counsel which character witnesses to proffer. This aspect of a criminal case is often largely left to the defendant.
Significantly, the Commonwealth cannot point to any other parts of the record to support the canard that Jamal dictated which witnesses to call. The reason is plain: Jamal never assumed that sort of control over his case. Moreover, the Commonwealth cannot dispute the following:
The Commonwealth also dwells on the fact that Jamal objected to Jackson's representation. The source of Jamal's protestation rested with Judge Sabo's hasty decision to strip Jamal of his pro se rights. Jamal's vociferous objections, uttered repeatedly throughout the trial, to this deprivation of his pro se rights and the forcible imposition of Jackson as his counsel in no way dilute Jackson's independent obligation to meet the minimum threshold requirements of the Sixth and Eighth Amendments to provide adequate assistance to his capital client. For the same reason, the difficulties that existed between Jamal and Jackson, which prevented the free-flow of information between the two, cannot justify otherwise constitutionally deficient performance.
The Commonwealth's contention that Jackson had "tried approximately twenty capital cases" is simply wrong. Death penalty prosecutions began in Philadelphia in 1978. From 1978 to 1981 (shortly before Jackson was appointed to handle Jamal's trial), Jackson was employed by a public interest law organization. It would have been, from a practical standpoint, impossible for Jackson to have handled twenty capital trials in three years as a full-time criminal defense practitioner; he surely did not do so while working outside the criminal defense field for that three year period. Not even the Philadelphia court system, which was, at the time of this trial, notorious for appointing capital cases to overburdened, ill-trained, and ill-equipped private attorneys, would have permitted such a compressed representation of capital defendants.
The Commonwealth further asserts that Jackson "conducted thorough and intensive trial preparation for a period of five months . . . ." (Mem. #1 at 68) This contention, which also formed a pillar to Judge Sabo's factfinding, is also unsupported by the record, and the Commonwealth nowhere endeavors to cite any part of the record in support. In fact, Jackson explained that, during the first five months he was handling Jamal's case, "there was very little time to do anything else but to file all of these motions and to argue the motions themselves." (7/31/95 Tr. 92) Significantly, and this appears nowhere in the Commonwealth's submissions or in Judge Sabo's factfinding, Jackson admitted that he was in over his head on April 29, 1982, just a month away from pretrial hearings and then the start of trial. Although quoted in Petitioner's January 20th Memorandum, Jackson's desperate cry for help bears repeating here:
[T]here is a problem in organizing the materials that I have before me, as well as preparing the appropriate research . . . . There is a great deal of work to be done, a great deal of information to be developed, and I have some reservations as to whether or not I can properly be prepared to go to trial within the next three weeks, or three to four weeks. . . . I have reams and reams of material to go through . . . . And that's my problem. Physically, your Honor, I can do only so much. As your Honor well knows, I do have other trials. . . . I am in the process of reducing my trial load, your Honor, to allow me to prepare effectively for this matter. But there are some matters that are still outstanding.
(4/29/82 Tr. 6-9)(emphasis added)
Jackson's lack of preparation shines through the minutes of the trial proceedings. Exemplifying his ill-preparedness is his inexcusable failure to arrange for Wakshul's (and Trombetta's) attendance at the trial. Any minimally prepared lawyer would have made Wakshul's (and Trombetta's) attendance priority number one, as his testimony was genuinely compelling for the defense. Moreover, it is axiomatic in criminal defense practice that evidence of an inculpatory statement by a client, particularly one as outrageous as here, must be answered forcefully. Another illustration of Jackson's serendipitous approach to Jamal's defense is his failure to ensure that witnesses Kordansky and Jones were fully prepared to testify in accordance with their pretrial statements. With these two witnesses backing up witness Hightower, along with an effective impeachment of Chobert, a jury would have had serious question about the prosecution's theory that only two civilians were at the crime scene. Yet, Jackson never subpoenaed Kordansky, which he explained was the product of being overwhelmed (which was the exact same reason he gave for failing to bring in Wakshul); and he never talked with Jones before putting her on the witness stand. These lapses are simply brushed aside in the Commonwealth's submissions, just as they were by Judge Sabo in his factfindings. But they speak volumes about Jackson's utter lack of preparation and commitment to the case.
Finally, as to the issue of resources, Jackson's failure to secure a pathologist illustrates the sort of prejudice Jamal suffered. As Petitioner's submissions show, a defense pathologist would have been able prove that Jamal could not likely have been shot by Officer Faulkner in the manner theorized by the prosecution (thus heightening the force of the defense's counter-explanation that Jamal was shot as he approached Officer Faulkner, with the latter elevated on the curb, firing downward). The Commonwealth, with remarkable bravado, now contends that the "state presented no 'upward trajectory' testimony." (Mem. #1 at 73) This contention, which is carefully worded, is designed to suggest that the prosecution at trial never theorized that Faulkner shot Jamal as the former was falling to the ground. It is a fact that no witness actually saw Faulkner shoot Jamal; thus, in a literal sense, the prosecution did not provide "'upward trajectory' testimony." But it did present Cynthia White, whose account strongly implied that Faulkner successfully reached for his gun as he was falling and managed to get off a shot. The trial prosecutor used White's testimony to argue the flawed "upward trajectory" theory.
It is now clear that such a theory is scientifically unsupportable, as Dr. John Hayes explained in his testimony. The Commonwealth, through all the verbiage, does not actually contest this fact. With no viable prosecution theory as to how Jamal was shot by Officer Faulkner, and with none of the eyewitnesses able to account for this fact (which, in itself, is significant, given the Commonwealth's suggestion that these witnesses had such terrific vantage points in which to view the events), the jury would have been far more amenable to the defense theory that Jamal was actually shot before the officer was shot, and the officer's act of discharging his gun may have prompted the actual shooter, described as short, heavy-set and adorning an Afro hairstyle, to commit the crime.
V. THE COMMONWEALTH'S OPPOSITION TO PETITIONER'S BATSON CLAIM IS REPLETE WITH MISREPRESENTATIONS
At page 118 of Memorandum #1, the Commonwealth asserts that Petitioner's "statistics" showing a prima facie case were "simply invented." In fact, the "statistics" that bear upon Petitioner's prima facie Batson claim derive from the Commonwealth's own representations (via an affidavit submitted by the trial prosecutor) and a stipulation by the lead PCRA prosecutor. Thus, the accusation that the data were "simply invented" is patently false.
As the Petition alleges at ¶¶465-470, based upon data in the record, the trial prosecutor was 5.13 times more likely to peremptorily strike a Black in the eligible jury pool than other persons in the pool in this case, and Black jury pool members faced odds of being peremptorily struck that were 16.47 times greater than for other jury pool members. Nearly 86% of the jurors acceptable to the trial prosecutor were white, while 73.33% of the jurors unacceptable to the trial prosecutor were Black. In addition, the eleven peremptory strikes the trial prosecutor exercised against Black jurors constituted 73.33% of the trial prosecutor total peremptory challenges, as compared to four strikes (or 26.67%) against white jurors. These are not numbers that were invented, but are derived from the cold record itself. [15]
As for the suggestion that Petitioner's Batson claim is procedurally defaulted because he failed to introduce evidence at the PCRA proceedings, this contention fails to recognize that Jamal was never permitted to get past the prima facie aspects of Batson. Specifically, the Pennsylvania Supreme Court, in 1989 (and in 1997), erroneously concluded that Jamal could not establish a prima facie case under Batson. Consequently, Jamal sought to show, at the PCRA proceedings that the Pennsylvania Supreme Court's 1989 ruling was predicated on an erroneous understanding of the number of Blacks who were struck. Jamal established that eleven, not eight (as the Pennsylvania Supreme Court wrongly believed), Blacks were peremptorily struck. Jamal then argued that a prima facie case under Batson had been established. That contention was again rejected, both by Judge Sabo and by the Pennsylvania Supreme Court. The secondary and tertiary issues under Batson - i.e., race-neutral explanation and pretext - never ripened as live issues by virtue of the PCRA court's erroneous rejection, as a matter of law, of the prima facie challenge.
Petitioner's habeas Petition sets forth facts from which two arguments are made: first, a prima facie case has, in fact, been made (which is a legal issue capable of decision from data contained in the current record); and second, whatever race-neutral explanations are proffered by the Commonwealth, Jamal is capable, through the introduction of additional evidence (partly statistical, partly demonstrative, and partly testimonial), of establishing that such explanations are pretextual. No evidence dealing with the "pretext" issue was proffered at the PCRA proceedings, not because of a lapse by Jamal, but because the "pretext" issue never ripened into a live issue in the face of the erroneous conclusion that Jamal could not establish a prima facie case. Accordingly, the Commonwealth's reliance on Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995), and Wise v. Fulcomer, 958 F.2d 30 (3d Cir. 1992), is totally misplaced. Neither of these decisions confronts the situation where a PCRA litigant was deemed to have failed to make out a prima facie Batson challenge, thereby mooting the issue of race-neutrality and pretext. Notwithstanding the Commonwealth's contention to the contrary, Jamal has not procedurally defaulted on the Batson claim. [16]
CONCLUSION
For the reasons set forth herein and in all previous filings with this Court, Jamal's petition for habeas corpus relief must be granted and a new trial ordered.
DATED this 24th day of March, 2000
Respectfully Submitted,
___________________________________
LEONARD I. WEINGLASS
6 West 20th Street, Suite 10A
New York, NY 10010
(212) 807-8646
By: DANIEL R. WILLIAMS
c/o Capital Defender Office
915 Broadway 7th Floor
New York, N.Y. 10010
(212) 780-5620
Counsel for Petitioner Mumia Abu-Jamal
JULES EPSTEIN
Kairys, Rudovsky, Kalman & Epstein
924 Cherry St. Suite 500
Philadelphia, PA 19107
(215) 925-4400
Local Counsel for Petitioner
1. The Commonwealth submitted two memoranda, one entitled "Commonwealth's Memorandum of Law" (which responds to Petitioner's December 6, 1999 memorandum), and the other entitled "Commonwealth's Memorandum Regarding State Court Fact Findings" (which responds to Petitioner's January 20, 2000 memorandum). For exposition purposes, the former will be identified herein as "Memorandum #1," and the latter as "Memorandum #2.
2. The slim thread on which the Commonwealth hangs this absurd claim is the testimony of P. O. Shoemaker. Shoemaker never said that Jamal "tried to shoot" arriving officers. Shoemaker testified that he kicked Jamal in the throat and face, and Jamal yelled "I'm shot, I'm shot." (6/19/82 Tr. 116) Shoemaker tried to explain why he kicked Jamal by saying that Jamal's "hand started to motion to the left" and a gun lay nearby. (Id. at 135) The prosecution's sole use of this testimony at trial was to explain Jamal's head injuries. (7/1/82 Tr. 162) Although according to Shoemaker the gun remained within a foot of Jamal's hand, both Shoemaker and his partner Forbes (who denied seeing Jamal reach for anything) plainly did not feel any threat from Jamal, for they both immediately turned their backs on Jamal to attend to Faulkner and Cook. Despite several traverses of the sidewalk, Forbes did not pick up the gun until a drunken white male later staggered toward the scene. (6/19/82 Tr. 151-53)
3. The trial prosecutor admitted that Scanlan "will not be an identification witness, simply because he has said to me that he does not know whether or not he could identify . . . he is not sure of identification himself." (3/18/82 Tr. 28) The Commonwealth nonetheless argues that Scanlan is an "identification" witness because he saw "all the things the other witnesses saw petitioner doing." (Com. Mem. #2 at 28) This is nonsensical. Scanlan no doubt saw the shooter fire at the slain officer. There has never been a dispute about the fact that there was a shooter who Scanlan and others saw. The fact remains, and the Commonwealth studiously ignores it, Scanlan identified the shooter with "certain[ty]" as having an "Afro" hairstyle. Moreover, the Commonwealth is absolutely correct in claiming that Scanlan had an unobstructed view of the shooter and the shooting (as is evidenced by the fact that he saw the slain officer's body jerk from the impact of the bullet). Scanlan's observations powerfully exculpate Jamal.
4. In Commonwealth's Memorandum #2, it states that the prosecution eyewitnesses offered "mutually corroborating" accounts. Nothing could be further from the truth, as the witnesses contradicted each other on numerous points relating to the flow of events (in addition to the descriptions of the shooter).
5. The Commonwealth points to Chobert's statement to the police where he says that the shooter was apprehended. (Com. Mem. #2 at 21, 31) Chobert never stated that he saw the police apprehend the shooter, let alone "apprehend him at the scene." (Id. at 31) In actuality, he rationally concluded that the shooter was apprehended because he believed that he had made an accurate identification of the shooter when he viewed Jamal in the back of the police wagon. It would be irrational for Chobert to believe that the shooter successfully fled in the face of his on-the-scene identification. Significantly, Chobert was never asked to look at Jamal in a standing position (where bulk and girth could be viewed). This is a critical omission by law enforcement because Chobert described the shooter as heavy-set (225 lbs).
6. The Commonwealth blatantly ignores the fact that PCRA counsel brought a polygraph expert into court (expending resources to bring him from out-of-state) in order to examine the polygraph results, and Judge Sabo refused to permit that examination.
7. Far from refuting Singletary's account, P. O. Vernon Jones corroborated both that Singletary was present at the scene when Jones arrived "within two minutes of the `assist officer'" and that Singletary was sent to police headquarters to be interviewed. (Tr. 8/14/95: 25, 36-37.) The fact that Jones was questioned by homicide detectives a week later for the sole purpose of asserting that Singletary had not seen the shooting was just another step in the police effort to suppress this witness's true account of the shooting. (Id.: 34-35, 38-42, 45.) Indeed, at the PCRA hearing Jones maintained that he had no independent recollection of what Singletary said to him, or of the statement he purportedly gave to homicide detectives. (Id.: 16, 20, 29.) Compounding the police misconduct in suppressing Singletary's statement, at trial the prosecution objected when the defense sought to question the investigating detective as to why he had not investigated P. O. Jones's statement that another witness was present at the scene, and the defense was precluded from pursuing this inquiry. (Tr. 6/29/82: 76-84.)
8. The Commonwealth asserts that the defense conceded that Singletary is "incredible." (Mem. #1 at 30) This, too, is wrong. PCRA counsel never asserted that Singletary was not worthy of belief. Rather, counsel forthrightly advised the court that Singletary's recollection of certain details "was not entirely accurate" due to the passage of time and damage caused by the police intimidation to which he was subjected. (8/11/95 Tr. 9-10)
9. It should be noted that Jones's observation of two men running is consistent with Chobert's reported observation to police that he saw two men run from the scene but that one of them was stopped by arriving police officers. (6/19/82 Tr.244, 246) Chobert recanted this aspect of his report to police as well, claiming it too was a mistake. (Id. at 246-48)
10. The Commonwealth further asserts that Jones's 1982 testimony regarding law enforcement inducements offered to her and Cynthia White was inadmissible hearsay. This is incorrect, as that testimony would be admissible for the fact that the inducements were offered (which has independent legal significance), not for the truth of the matter asserted (which is the definition of hearsay).
11. The proceedings were halted for a short while after this revelation surfaced because the trial judge wanted defense counsel to talk with witness Jones. Defense counsel reported back what he learned. According to defense counsel, Jones would further amplify on what she had just said, stating that the police told her: "`Look, we will let you work the street and we will do you just like we done Lucky.' Lucky is Cynthia White's name. `We want to ask you some questions about where you were, because we know Lucky said you were out there that night and you saw what happened.'. . . They told her that if she would give a statement that backed up Cynthia White they would let her work the street just like they were letting her work." (7/29/82 Tr. 139) The trial court ultimately precluded that testimony, restricting Jones' testimony to the events immediately surrounding the shooting. (Id. at 142)
12. In fact, the record shows more than the withholding of this important information. The record reveals that the defense was actually misled by the disclosure of another police report indicating that the driver's license form was amidst other materials in the back of the Volkswagen - hence, nothing more than an incidental piece of refuse.
13. Further indicating that the Commonwealth intentionally suppressed evidence of a third civilian at the scene are remarks found in the trial of Jamal's brother, William Cook. Cynthia White testified in Commonwealth v. William Cook, (81-12-0272), and made reference to a "passenger" in the Volkswagen. (Tr. 33) The prosecutor then asked White: "What did the passenger do?" White responded, "He had got out." The prosecutor followed up with the question, "What did the driver do?" - to which White responded, "He got out of the car." (Id.) Apparently, defense counsel at trial was unaware that the prosecutor had information of a "passenger" being at the scene. Although the record does not clarify the point, it may be that the trial prosecutor based his understanding about a third civilian at the scene on the fact that a driver's license application form was found on Officer Faulkner's person.
14. That Durham testified that she told a colleague about the confession is not corroboration of her claim to have heard the confession. After all, if she falsely testified about the confession, then it is no stretch to conclude that she was capable and willing to testify falsely about reporting it the next day. The objective record evidence shows that the trial prosecutor never called this hospital colleague to the stand to corroborate Durham's claim. Additionally, the record evidence shows that Durham never bothered to mention this highly-significant information to any law enforcement personnel for three months - and then, only when asked about it by an IAB investigator after Bell and Wakshul had, a month earlier, claimed to hear the confession. Finally, Durham never mentioned in her pretrial testimony the existence of a document recording what she claimed to have heard. Indeed, her pretrial testimony - which bears scant resemblance to her trial testimony on this score - only states that she had told a few unspecified people about the confession.
15. The flaw in the Commonwealth's opposition to Petitioner's Batson claim is its deliberate conflation of two sets of prospective jurors. Jamal starts the Batson analysis, quite appropriately, with the jurors who were eligible to be selected (that is, the venire minus those removed for cause or hardship). The racial makeup of these jurors in this "juror pool" is known from the record. The Commonwealth injects an irrelevant notion into the mix: the prospective jurors in the entire venire. (Com. Mem. #1 at 123) Using this category of prospective jurors, which is over-inclusive and irrelevant, the Commonwealth then argues that Petitioner's Batson claim is predicated on deficient statistics because the racial makeup of this entire venire cannot be discerned. The force of a Batson claim depends upon the use of peremptory strikes against eligible prospective jurors. This calculation can be made from the record. The Commonwealth's desire to obfuscate with questions about the racial makeup of persons who were never subject to peremptory challenge is inexcusable.
16. The Commonwealth dismisses the McMahon tapes as private, and "offensive," views of a single ex-prosecutor. A simple viewing of the tape reveals the absurdity of this claim. This ex-prosecutor was a senior member of the District Attorney's Office (a colleague of Jamal's trial prosecutor) and was captured on tape, not serendipitously, but by design, because he was lecturing young prosecutors in his official capacity within that office. The tape makes unmistakably clear that the lecture was being videotaped in order that this particular training session could be re-played for others who could not attend (and for those young prosecutors who had not yet joined the office). It was prepared under the auspices of then-District Attorney Ronald Castille (currently on the Pennsylvania Supreme Court). Perhaps most troublesome is the cynicism revealed in the tape. McMahon instructs young prosecutors on the ways of disguising race-conscious jury strikes, such as by agreeing to accept Blacks from South Carolina (who, many perceive, to be more amenable to "law and order" themes than northern urban Blacks). Significantly, Jamal's trial prosecutor engaged in a pattern of race sanitizing of the jury in the suggested manner revealed in this tape. This, too, will be the subject of additional evidence to be proffered by Jamal at an evidentiary hearing. As for the "offensiveness" of McMahon's "views," the videotape reveals that the prosecutors attending the lectures were quite receptive to McMahon's teachings.
[posted 3/28/00]
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