IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
MUMIA ABU-JAMAL,
Petitioner,
vs.
MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections; and
CONNER BLAINE, Superintendent of the
State Correctional Institution at Greene;
Respondents
__________________________________________
MEMORANDUM OF LAW OF AMICI CURIAE
IN SUPPORT OF PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §2254
Amici curiae, the Pennsylvania affiliate of the American Civil Liberties Union, and the Philadelphia branch of the National Association for the Advancement of Colored People through their undersigned counsel, submit this Memorandum of Law in support of the Petition for Writ of Habeas Corpus of Mumia Abu-Jamal filed pursuant to §§ 2241 and 2254 et. Seq. ("Petition"), on the grounds that his sentence of death was obtained in violation of the Constitution of the United States.
I. STATEMENT OF INTEREST
Amici curiae have previously addressed the claim presented herein in briefs submitted in support of petitioner on his direct appeal to the Pennsylvania Supreme Court and/or his subsequent appeal to that court from the denial of his Post Conviction Relief Act petition.
The American Civil Liberties Union of Pennsylvania is an affiliate of the American Civil Liberties Union. The American Civil Liberties Union (ACLU) is a nationwide, non-partisan organization of approximately 300,000 members dedicated to preserving and defending the principles embodied in the Bill of Rights. Since its founding more than 75 years ago, the ACLU has consistently taken the position that the right to hold unpopular views is protected by the First Amendment and that such unpopular views cannot, by themselves, be outlawed or punished. This case once again involves that core principle of constitutional law and thus raises issues of central concern to the ACLU. In addition, the ACLU and its affiliates have long sought to support the abolition of capital punishment, believing the death penalty to contravene the Eighth Amendment prohibition against cruel and unusual punishment. The ACLU and its chapters have been involved, either directly, or as amici, in many of the appeals challenging sentences of death throughout the United States. On behalf of its members, the Pennsylvania affiliate seeks leave to file the instant amicus brief.
The National Association for the Advancement of Colored People (NAACP) established five active branches in Philadelphia 1966. In 1991 those branches unified to form the Philadelphia Branch; one of 1,800 chapters nationwide. There are currently over 4000 members in Philadelphia. The NAACP is the oldest and largest civil rights organization in the United States. Formed in 1908, the aim of NAACP has been the "elimination of all barriers to political, educational, social and economic equality" for blacks and other racial minorities. The NAACP has repeatedly engaged in litigation either directly, or as amici, to support and protect the rights of freedom of speech and freedom of association of all Americans. It has also opposed the imposition of the death penalty on equal protection and Eighth Amendment grounds. On behalf of its members, the Philadelphia Branch of the NAACP seeks leave to file the instant amicus brief.
II. STATEMENT OF SCOPE AND STANDARD OF REVIEW
The claim that the petitioner's rights to free speech and association under the First Amendment of the United States Constitution have been impermissibly infringed by the introduction of evidence and argument during the sentencing phase of a capital trial requires this Court to conduct a review to determine whether the prosecution employed evidence of a defendant's abstract beliefs and/or political associations at a sentencing hearing when those beliefs or associations have no bearing on the issue being tried. Dawson v. Delaware, 503 U.S. 159, 168, 112 S.Ct. 1093 (1992). In judging whether activity protected by the First Amendment is relevant on the issue being tried, this Court must judge the matter "strictissimi juris" or "according to the strictest law" - "otherwise there is a danger that one in sympathy with the legitimate aims of [an organization engaged in a bifarious undertaking involving both legal and illegal purposes and conduct] but not specifically intending to accomplish them by resort to violence, might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share." NAACP v. Claiborne Hardware Company, 458 U.S. 886, 919, 102 S.Ct. 3409, 3429 (1982), quoting Noto v. United States, 367 U.S. 290, 299, 81 S.Ct. 1517 (1961), and citing United States v. Robel, 389 U.S. 258, 88 S.Ct 419 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659 (1964). Finally, "[b]ecause of the potential chilling effect that consideration of First Amendment activity at sentencing might have, there is a substantial argument that harmless-error analysis is not appropriate for the type of error before [this Court] today." Dawson, 503 U.S. at 169 (Blackmun, J. concurring). See also Flanagan v. Nevada, 109 Nev. 50, 56, 846 Pa.2d 1053, 1057 (1993) (no harmless-error analysis should be applied to Dawson).
The scope of review on the Dawson issue is the record of the entire trial and sentencing hearing.
A discussion of the appropriate application of the standards required by Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996, follow at pages 28-33.
III. STATEMENT OF QUESTION INVOLVED
Did not the trial court err during the death penalty sentencing hearing by allowing the prosecutor to present to the jury unpopular political views and controversial group associations maintained by the petitioner twelve years earlier, as a teenage member of the Black Panther Party, in violation of the petitioner's First Amendment right to free speech and free association?
IV. STATEMENT OF THE CASE
Amicus curiae agrees with and adopts the relevant description of the events and proceedings set forth in the Petition for Habeas Corpus Relief and supporting Memorandum of Law, with the following addition.
During the sentencing hearing the Commonwealth presented one witness, Miss Pat Beato, the custodian of records for the Philadelphia Police Department. Through her testimony the Commonwealth established that the deceased, Daniel J. Faulkner, was a Philadelphia police officer on active duty at the time of his death (N.T.S.H. [1] 3-7). The Commonwealth thereafter moved to incorporate all of the testimony of the trial into the sentencing hearing and then rested (N.T.S.H. 9). See Appendix.
The defense presented only the petitioner, Mumia Abu-Jamal, who read a prepared statement to the sentencing jury in the form of a statement of allocution. In the statement the Mr. Abu-Jamal derided the motives and behavior of the trial court, prosecutor and defense counsel, and complained of several examples of injustice. The complaints addressed may be identified in summary as follows: a) the existence of racial bias within the criminal justice system; b) the use by the prosecutor of peremptory challenges to systematically exclude from the jury the defendant's peers such that the resulting jury was disproportionately white and male; c) the refusal of the court to allow the defendant to choose his own legal assistant or to represent himself; d) the exclusion from evidence of a written statement in which an officer asserted that the defendant had made no incriminating remarks while in custody at Jefferson Hospital; e) the refusal of the court system to set reasonable bail for the defendant, who is Black, in contrast to its action in the pending case of a white officer charged with a similar crime; and f) the futility of utilizing capital punishment to deal with the problem of crime (N.T.S.H. 10-16). To this the petitioner added an assertion of his innocence (N.T.S.H. 14-15). He declared that he was the victim of an attempted execution (N.T.S.H. 16).
In presenting the above complaints Mr. Abu-Jamal made several references in his statement to John Africa, whom he asserted should have been allowed to assist him at his defense (N.T.S.H. 10-16). In protesting the appointment of counsel, for example, he stated: "To quote John Africa, 'When a lawyer chooses to follow the conditions of the Court he compromises his obligations to his client.'" (N.T.S.H. 11) Later, he read a quotation from John Africa criticizing the use of capital punishment (N.T.S.H. 14).
Prior to cross-examination a sidebar conference was held at defense counsel's request. Counsel anticipated that the prosecutor would attempt to use certain quotations which appeared in old newspaper articles and publications (N.T.S.H. 17). The objection was made that the statements could not be authenticated and that their very use would prejudice the jury (N.T.S.H. 16-17). The prosecutor responded that he should be allowed to use the old newspaper articles on cross-examination because Mr. Abu-Jamal had "opened up an extensive amount of doors" by presenting his statement of complaints and making reference to John Africa (N.T.S.H. 18-19). No thought was given to whether a prosecutor was permitted to cross examine the statement of allocution of a defendant in the sentencing stage of a capital trial. In the end, the trial court denied counsel's objection, stating:
THE COURT: You knew that Mr Abu-Jamal had the statement prepared and you knew that he was going to read it regardless whether the district attorney objected or not, [2] so it seems in point that I will allow him to cross-examine him.
Go ahead.
(N.T.S.H. 19).
During cross-examination the prosecutor proceeded to make use of an article by reporter Acel Moore published in the January 4, 1970 edition of the Philadelphia Inquirer and accompanied by a picture of the petitioner identified as the Communication Secretary of the Philadelphia Chapter of the Black Panther Party. After asking if the petitioner was "an executioner," the prosecutor began this segment of his cross-examination as follows:
Q. Mr. Jamal, Let me ask you if you can recall saying something sometime ago and perhaps it might ring a bell as to whether or not you are an executioner or endorse such actions.
"Black brothers and sisters - and organizations - which wouldn't commit themselves before are relating to us black people that are facing - - we are facing the reality that the Black Panther Party has been facing, which is - -"
Now, listen to this quote. You've often been quoted saying this:
"Political power grows out of the barrel of a gun."
Do you remember saying that, sir?
A. I remember writing that. That's a quotation from Mao-Tse-Tung.
Q. There is also a quote - -
A. Let me respond if I may?
Q. Well, let me ask you a question.
A. Let me respond fully. I was not finished when you continued.
Q. All right, continue.
A. Thank you.
Q. Continue to respond, then, please, sir.
A. That was a quotation from Mao-Tse-Tung of the Peoples Republic of China. It's very clear that political power grows out of the barrel of a gun or else America wouldn't be here today. It is America who has seized political power from the Indian Race, not by God, not by Christianity, not by goodness, but by the barrel of a gun.
Q. Do you recall making that quote, Mr. Jamal, to Acel Moore?
A. I recall quoting Mao Tse-Tung to Acel Moore about 12 to 15 years ago.
Q. Do you recall saying:
"All power to the people"?
Do you recall that?
A. "All power to the people"?
Q. Yes.
A. Yes. (Nods head affirmatively.)
Q. Do you believe that your actions as well as your philosophy are consistent with the quote:
"Political power grows out of the barrel of a gun"?
A. I believe that America has proven that quote to be true.
Q. Do you recall saying that:
"The Panther Party is an uncompromising party, it faces reality"?
A. (Nods head affirmatively.) Yes.
Why don't you let me look at the article so I can look at it in its full context, as long as you're quoting?
Q. I'd be very glad to give you the article. I am ashamed -- I'm kind of sorry you didn't give me your statement before.
A. Well, you can't have everything I have.
Q. Here is your statement, sir.
Do you recall saying this when you had the name West Cook?
A. Well, let me look at it.
(Whereupon the District Attorney presents the newspaper article to the defendant who examines same.)
I would like to read the entire article if you have no objection?
MR. McGILL: Go right ahead.
DEFENDANT JAMAL: Okay.
Do you have the continuation, Page 12, Column 1?
MR. McGILL: Here is the underlined area where:
"The Panther Party is an uncompromising party. It faces reality."
(Whereupon the District Attorney presents the second portion of the article to the defendant.)
(N.T.S.H. 21-24).
The petitioner attempted to read the article in its entirety in an apparent effort to place the above quotations in context (N.T.S.H. 24-30). See Exhibit "A" (notes of petitioner's testimony). Thus, he noted that the article was titled, "Protest Killings By Police. Headquarters Cold, But Issues Are Hot For Black Panthers" (N.T.S.H. 25), and that his remarks focused criticism on the politically motivated attacks of police against the Black Panther Party, as in the following two paragraphs in which he quoted from Mao Tse-Tung:
"Since the murders,' says West Cook, Chapter Communications Secretary, "Black brothers and sisters and organizations which wouldn't commit themselves before are relating to us. Black people are facing the reality that the Black Panther Party has been facing: Political power grows out of the barrel of a gun."
Murders a calculated design of genocide and a national plot to destroy the party leadership is what the Panthers and their supporters call a bloody two year history of police raids and shootouts. The Panthers say 28 party members have died in police gunfire during that period, two last month.
(N.T.S.H. 27-28).
The prosecutor continued to question the petitioner throughout the reading in an attempt to persuade the petitioner to adopt certain quotations as his own. After the reading was completed, the prosecutor concluded his examination of the petitioner concerning the contents of the article with the following questions:
Q. Mr. Jamal, Let me ask you again, sir, if I may --
MR. McGILL: If I may ask a question, Judge?
Was that or was that not a quote that you made to Acel Moore?
A. That was a quote from Mao Tse-Tung.
Q. Is that one that you have adopted?
A. Say again?
Q. Have you adopted that as your philosophy theory?
A. No, I have not adopted that. I repeated that.
(N.T.S.H. 30-31).
In his argument to the jury the prosecutor again relied upon this quotation. Arguing that the petitioner had demonstrated a rebellious attitude towards law and order, the prosecutor made reference to "all the way back then with political power, power growing out of the barrel of a gun" (N.T.S.H. 68). He added:
No matter who said it, when you do say it and when you feel it, and particularly in an area when you're talking about police or cops or shootings and so forth, even back then, this is not something that happened over night.
(N.T.S.H. 68).
V. SUMMARY OF ARGUMENT
The First Amendment rights of a defendant are violated in a capitol case when a prosecutor drags the unpopular political views and affiliations of an accused before a jury in an attempt to obtain a sentence of death. The courts have long held that citizens may not be punished for their political beliefs and associations. Similarly, where a defendant's politics are not directly relevant to the issue of his guilt or innocence, they may not be used to obtain a conviction or to enhance a sentence. This, however, is precisely what occurred in the case at bar.
Here the prosecutor deliberately used a twelve year old newspaper interview of petitioner during the sentencing stage of his capital trial. The article highlighted petitioner's teenage membership in the Black Panther Party. In his cross-examination, the prosecutor focused the attention of the jury on the petitioner's use of the radical Black Power slogan: "All power to the People." Using these words, he portrayed the petitioner as a dangerous and undeserving dissident. Ironically, the words of this slogan parrot the declaration of political rights enshrined in the first article of the Pennsylvania Constitution: "All power is inherent in the people ...." Art. I, Sec. 2.
The prosecutor's most egregious act, however, involved his calculated misrepresentation of the petitioner's use of a famous statement by Mao Tse-Tung: "Political power grows out of the barrel of a gun." In the original article the petitioner referred to that quotation in an attempt to criticize brutal and violent attacks which the police had carried out against members of his party. Yet, during his cross-examination the prosecutor plucked this phrase from its context and presented it as proof that the petitioner had personally advocated the use of guns against the police. In so doing the prosecutor achieved two impermissible goals: he associated the petitioner with a feared enemy - the Chinese Communist Party; and he falsely portrayed petitioner as having advocated murder and the use of physical violence.
None of these references were relevant to the issues before the court. In his allocution to the jury, petitioner never referred to his teenage membership in the Black Panther Party. Nor did he use the political phrases quoted in the article. Indeed, his teenage role as local Communications Secretary of the Black Panther Party was simply not germane to any issue at this capital sentencing proceeding. Nevertheless, the prosecutor labored to incite loathing and hatred in the jury based upon controversial political beliefs and group affiliations. By focusing on a teenage's efforts to "petition the government for redress of grievances," the prosecutor transformed this defendant's early exercise of his constitutional rights into a later weapon for his own demise.
The prosecutor's actions were a gross violation of the right of free speech. This Court should grant the petitioner's Petition for Writ of Habeas Corpus on this ground alone.
VI. ARGUMENT
THE TRIAL COURT ERRED DURING THE DEATH PENALTY SENTENCING HEARING BY ALLOWING THE PROSECUTOR TO PRESENT TO THE JURY, AND REFERENCE IN HIS CLOSING, THE PETITIONER'S UNPOPULAR POLITICAL VIEWS, CONTROVERSIAL GROUP ASSOCIATIONS, AND MILITANT EFFORTS TO "PETITION THE GOVERNMENT FOR A REDRESS OF GRIEVANCES" AS THEY HAD BEEN REPORTED IN THE PRESS TWELVE YEARS EARLIER WHEN PETITIONER WAS A TEENAGE MEMBER OF THE BLACK PANTHER PARTY, ALL IN VIOLATION OF THE PETITIONER'S RIGHTS UNDER THE FIRST, EIGHTH AND FOURTEENTH AMENDMENTS.
In Chicago, December 4, 1969, at 4:15 a.m., gunfire suddenly erupted and fourteen officers, working under the direction of Cook County State's Attorney Edward V. Hanrahan, burst into the home of Fred Hampton - the leader of the Chicago chapter of the Black Panther Party. When the sound of gunfire faded, Hampton lay dead in his bed, with Panther member Mark Clark nearby. Several other occupants of the apartment survived gunshot wounds. The police emerged unscathed.
On January 4, 1970, reporter Acel Moore of the Philadelphia Inquirer interviewed a young member of the Philadelphia chapter. He wrote as follows:
"Since the murders,' says West Cook, Chapter Communications Secretary, "Black brothers and sisters and organizations which wouldn't commit themselves before are relating to us. Black people are facing the reality that the Black Panther Party has been facing: Political power grows out of the barrel of a gun."
Murders a calculated design of genocide and a national plot to destroy the party leadership is what the Panthers and their supporters call a bloody two year history of police raids and shootouts. The Panthers say 28 party members have died in police gunfire during that period, two last month.
(N.T.S.H. 27-28). Twelve years later, the highlighted words from the above article were presented to a jury by a prosecutor who argued that they signified Westly Cook, the former "Black Panther," was an "executioner" who believes that political power must come "out of the barrel of a gun." (N.T.S.H. 21, 68).
In November of 1982 - thirteen years after the Chicago police raid that served as the impetus for the remarks of young Westly Cook - the City of Chicago, Cook County and the Federal Government entered into a settlement agreement that awarded 1.85 million dollars to the nine survivors and the relatives of Fred Hampton and Mark Clark. Cf. Hanrahan v. Hampton, et al., 446 U.S. 754, 100 S.C. 1987 (1980). Commenting on the settlement, the New York Times stated:
On Dec. 4. 1969, in what the police described as a fierce gun battle with the Panthers, nearly 100 shots were sprayed through the apartment on Monroe Street in an impoverished black neighborhood on the city's near West Side.
But an examination by ballistics experts determined that only one of the bullets was fired from a weapon belonging to one of the apartment's occupants. In addition, the experts said, the "bullet holes" in the front door, which the police said showed that shots had come from within, had actually been made by nails used by the authorities in an effort to cover up the facts of the raId.
Subsequent investigations by Congress and a Federal grand jury indicated that the F.B.I. had played a significant role in events leading to the raid, as part of its counterintelligence program against groups that J. Edgar Hoover, the bureau's director, perceived as "subversives."
F.B.I. documents, made public as part of the Panther's suit and other court cases, indicated that the aim of the program, known as Cointelpro, was to "expose, disrupt, misdirect, discredit or otherwise neutralize the activities of black nationalist hate type organizations and groupings, their leadership, spokesmen, membership and supporters, and to counter their propensity for violence and civil disorder."
New York Times, November 14, 1982, at Sec. 1, Part 2, page 82, col. 3, Nat. Desk ("Plaintiffs in Panther Suit 'Knew We Were Right'"). See also The Boston Globe, September 15, 1995, at 31 ("Why an outcry over Ruby Ridge? Because the victims were white.") [3] IbId.
It is ironic that only two years after the prosecution fashioned the petitioner's strident words of protest, and his past political association, into a virtual "aggravating factor" that persuaded the jury to impose the ultimate penalty of death, the underlying truth of those words was borne out in exhaustive legal proceedings. The Panthers had indeed been targeted in a violent effort to "neutralize" their organization. The means chosen to achieve this political aim came "out of the barrel of a gun."
A "Perspective" published by the Chicago Tribune twenty years after those startling events reached a conclusion identical to that articulated by Westly Cook; albeit, without utilizing the rhetoric of Chinese Communist Party leader Mao Tse-Tung:
. . . the great untold story of the Panthers is the skepticism many black Americans had about them, at least until government excesses made them martyrs.
. . .
But much of that changed on the morning of Dec. 4, 1969, when 14 Chicago police officers . . . burst into Fred Hampton's apartment at 4:45 a.m. and shot him while he lay in bed.
Suddenly the term "black community" took on a special meaning. If the government could do this to Fred and get away with it, the reasoning went, any of us could get the same treatment. A lot of black Americans turned militant that morning.
Chicago Tribune, December 3, 1989, at 3 ("Perspective").
Had the prosecutor been prohibited from striking eleven blacks venire persons from the jury, his efforts to vilify petitioner as a teenage black militant espousing dangerous, communist ideas might not have met with great success. [4] Task Force, at 170 (1987). In the instant case, however, the prosecutor was allowed both to deprive petitioner of a jury of his peers by striking jurors on the basis of their race, [5] Id. at 29. Later, when this case was on direct appeal before the Pennsylvania Supreme Court, the United States Supreme Court condemned this practice to be an impermissible violation of the Fourteenth Amendment right to equal protection. Batson v. Kentucky 476 U.S. 79, 106 S.Ct. 1712 (1986). and to bring before the remaining jurors twelve year old evidence of petitioner's past political association with a radical black civil rights organization and his strident protest against police brutality, in an effort to evoke both racial and political hostility.
On direct appeal, petitioner's attorney, and counsel for amici curiae, challenged the resulting sentence of death on the basis that it was obtained in violation of the First and Fourteenth Amendments' protection of free speech, political association, and the right to petition for redress of grievance, and the Eighth Amendments protection against arbitrary and capricious punishment. In an opinion authored by Justice Zappala, speaking for four justices of the court, the Pennsylvania Supreme Court held that the prosecutor's use of the twelve year old article was both relevant and admissible evidence for the jury to weigh in its consideration of petitioner's character and its determination of whether petitioner should be put to death. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). Specifically, the court invoked three alternate grounds as justification for admitting the evidence:
1) that it could be used to rebut evidence presented earlier of petitioner's good character;
2) that it could be used to rebut petitioner's assertion that the police had attempted to kill him during the incident; and
3) that the prosecutor could remind the jury of its role and supplement his "law and order theme" during closing argument by contrasting the petitioner's "longstanding disdain for the system" with the purpose of the aggravating factor it had been asked to consider (i.e. the killing of a peace officer during the performance of his duties).
Id. at 216, 555 A.2d at 859. While recognizing the many cases in which the United Supreme Court has rejected attempts to punish individuals for the expression of their views or there association and/or membership in a disfavored group, [6] the Pennsylvania Supreme Court nevertheless declared that those cases were distinguishable from the present situation; i.e. here, it declared, such evidence could be used for impeachment or to rebut evidence of good character. [7] Id. at 215, 555 A.2d at 859.
In so doing, the Pennsylvania Supreme Court disregarded a prudent warning from an earlier period of its own history when it prohibited a prosecutor from drawing upon a climate of hysteria against a disfavored political group with which the defendants at issue were associated. In that case, which also involved an accusation of an assault upon a police officer, Pennsylvania Supreme Court stated:
. . . Whether defendants, or any of them, are members of the communist party or adhere to its doctrines is a matter entirely foreign to the issue of guilt or innocence on a charge of affray, assault and battery and obstructing an officer attempting to make an arrest. Nor is such evidence relevant to indicate motive, and to rebut defendants' contention that they were engaged in a bona fide labor dispute. . . . In I Wigmore, Evidence, sec. 57, p. 454, it is stated: "...a doctrine of Auxiliary Policy ... operates to exclude what is relevant,--the policy of avoiding the uncontrollable and undue prejudice, and possible unjust condemnation, which such evidence might induce:..."
And, on page 456: "The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury, in or out of Court."
Commonwealth v. Truitt, 369 Pa. 72, 85 A.2d 425 (1951). While Truitt focused on that stage of the trial at which guilt or innocence is determined, its admonition has equal force to the case at bar: A jury must not be allowed to have its decision of whether to impose a sentence of death influenced by its personal like or dislike of a group with which a defendant was once associated, or the fact that it favors or abhors views that he may have expressed which have no bearing on the issue being tried. Indeed, this is precisely the holding of the Court in Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093 (1992), [8] Id. at 160.
In Dawson the defendant was convicted of first degree murder for killing a woman at the scene of a burglary shortly after he escaped from a prison in Delaware. At his sentencing hearing the defendant presented character testimony from family members and evidence that he had earned "good time" credits through certain prison programs. For its part, the prosecution was allowed, over objection, to present evidence that the words "Aryan Brotherhood" were tattooed on the defendant's hand, and that he had introduced himself to a woman following his escape by using the name "Abaddon", which he explained meant "one of Satan's disciples." The jury was provided with the following stipulation to explain the nature of the Aryan Brotherhood:
"[t]he Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware.
Id. at 162.
In justifying its decision to affirm the jury's sentence of death, the Delaware Supreme Court explained that, while the Constitution prohibits the consideration of certain irrelevant factors during sentencing, " '[p]unishing a person for expressing his views or for associating with certain people is substantially different from allowing ... evidence of [the defendant's] character [to be considered] where that character is a relevant inquiry.' " Dawson, 503 U.S. at 163 (quoting State v. Dawson, 581 A.2d 1078 (Del. Supr., 1990), quoting Commonwealth v. Abu-Jamal, 512 Pa. at 215). The above justification, drawn directly from the Pennsylvania Supreme Court's opinion in the instant case, was explicitly rejected by the United States Supreme Court.
Although the Court in Dawson acknowledged, as it must, that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment," Justice Rehnquist reaffirmed that the First Amendment in this context does provide protection to an individual's right to associate and to hold political beliefs [9] - and he concluded that the state's evidence of Dawson's involvement with the Aryan Brotherhood was "totally without relevance to Dawson's sentencing proceeding." Examining the evidence, Justice Rehnquist explained:
Even if the Delaware group to which Dawson allegedly belongs is racist, those beliefs, so far as we can determine, had no relevance to the sentencing proceeding in this case. For example, the Aryan Brotherhood evidence was not tied in any way to the murder of Dawson's victim. . .
Because the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts, or had even endorsed such acts, the Aryan Brotherhood evidence was also not relevant to help prove any aggravating circumstance.
Id. at 166. In rejecting the suggestion that this evidence was admissible as character evidence under Delaware law, or to rebut mitigation, Justice Rehnquist further declared:
Whatever label is given to the evidence presented, however, we conclude that Dawson's First Amendment rights were violated by the admission of the Aryan Brotherhood evidence in this case, because the evidence proved nothing more than Dawson's abstract beliefs. CF. Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ("[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offense or disagreeable"). . . . [O]n the present record one is left with the feeling that the Aryan Brotherhood evidence was employed simply because the jury would find these beliefs morally reprehensible. . . .
Nor was the Aryan Brotherhood evidence relevant to rebut any mitigating evidence offered by Dawson. . . . Delaware argues that because Dawson's evidence consisted of "good" character evidence, it was entitled to introduce any "bad" character evidence in rebuttal, including the concerning the Aryan Brotherhood. The principle of broad rebuttal asserted by Delaware is correct, but the argument misses the mark because, as stated above, the Aryan Brotherhood evidence presented in this case cannot be viewed as relevant "bad" character evidence in its own right.
Id. at 167-68.
On the present record the prosecutor failed to prove that either the petitioner or the Philadelphia chapter of the Black Panther Party "had committed any unlawful or violent acts, or had even endorsed such acts," although this was precisely the claim he made in his closing argument:
Anybody can grasp or hold any kind of philosophy you want. That's fine. That's what this country happens to be all made of. But, one thing that cannot be tolerated is constant abuse of authority and daily law breaking. That simply is not permitted.
(N.T.S.H. 71). Instead, he ultimately established that the teenager, Westly Cook, speaking as the Communication Secretary of the local Black Panther Party, had complained bitterly twelve years earlier that his fellow Panthers were being murdered by the police, and that black people were being subjected to a political system in which "political power grows out of the barrel of a gun." As militant as that might sound, it is not a remarkable lesson for the black community, given our long history of slavery, Jim Crow, Ku Klux Klan lynchings, the ambush killings of civil rights workers, the assassination of black leaders such as Medgar Evers and Martin Luther King, and the numerous acts of police violence against African Americans that continue to this day (e.g., the bombing of Move, the shooting of Amadou Diallo, and the sodomizing of Abner Louima).
Certainly, young Westly Cook might have used more "compromising" language. Given the mayhem that the Black Panther Party had recently experienced in Chicago, however, it should not be surprising that Westly spoke in rhetoric that appears now to be exaggerated.
Genocide is coming to the forefront under the Nixon, Agnew and Mitchell regime, says West, and that's exactly what it is. The Panther Party is an uncompromising Party. It faces reality.
(N.T.S.H. at 29). [10]
Despite his graphic rhetoric, evidence that Mr. Cook and his associates were engaged in violent activity is rather difficult to glean from the article in this record. The caption under the picture of Westly Cook stated: "His organization is doing what the churches are supposed to do." (N.T.S.H. at 25). The reporter, in evaluating the chapter's work, stated:
In Philadelphia at least the Panther[s] have been more socially activist than militant. Their rhetoric, frequent references to policemen as 'Fascist pigs,' and a 'racist, capitalistic American society,' has been angrier than their actions.
Like other Panther chapters, the Philadelphia Black Panther Party has established a free breakfast program for needy children. Cook estimates that the Philadelphia Panthers feed about 80 children daily. The number fluctuates some -- at two centers, 1916 W. Columbia Avenue and at the Houston Community Center, 8th St. and Snyder Ave.
The Pennsylvania Black Panther Party members have also initiated programs in Harrisburg and in Reading. The food is obtained primarily from donations by merchants in black ghetto areas, but Cook denies charges which have been made, accusing the Panthers of intimidation. The donations, he said, are voluntary.
(N.T.S.H. at 30).
Nor is there any evidence in the article that Westly Cook or the Black Panther Party advocated the violent use of firearms. The article has only one reference to the position that was publicly advocated by the Black Panther Party regarding the use of firearms and the exercise of force. That section states as follows:
There were no visible weapons in the Headquarters, but we can't hope to exist he said without some kind of protection.
Referring frequently to the Party's newspaper, the Black Panther, West stressed the aim of the Black Panther Party of helping black Americans gain a sense of dignity and of the Party's insistence on self-defense.
There are 26 rules outlin[ed in] the Black Panther newspaper for Party members. One of them stipulates that no Party member will use, point or fire a weapon of any kind unnecessarily, or accidently hurt anyone. Another rule, however, states that all Panthers must learn to operate and service weapons correctly.
(N.T.S.H. at 29).
The position advocated by the organization, and articulated by Westly Cook, is nearly identical to that taken by mainstream organizations, such as the National Rifle Association which defends the right of its members to own firearms and has publicly denounced the unnecessary use of force against those who possess firearms for their own protection. [11] It would be inconceivable that any state court would allow the fact that a person had once been affiliated with the National Rifle Association, or had advocated the official policies of that group, to be used against him as evidence in the penalty phase of a murder trial - i.e. to persuade the jury that the defendant should be put to death. The statements of Westly Cook, which only advocated lawful policies espoused by his organization, should be treated no differently. It must be noted that there is no suggestion in the article that Westly Cook or the Black Panther Party encouraged citizens to carry guns on the streets of Philadelphia, or to use them in any unlawful way.
Most of the remaining references to firearms in this article arise in the context of Westly Cook's original complaint that the police had targeted the Panthers with deadly force. Thus, reporter Acel Moore notes that, although there had not been any armed confrontations with the police in Philadelphia, Westly Cook was apprehensive that they might be harmed. Referring to an occasion in which the Philadelphia Police raided the group's headquarters and "confiscated some office equipment," Westly Cook was reported to have said: "They could have shot us then . . . [e]xcept we were all out in the community working at the time." (N.T.S.H. 28-29).
In hindsight, given the subsequent public revelations concerning Cointelpro, those apprehensions may have been well founded. See text supra at 14, New York Times, November 14, 1982, at Sec. 1, Part 2, page 82, col. 3, Nat. Desk ("Plaintiffs in Panther Suit 'Knew We Were Right'"). [12] Whether or not they were well founded, however, the petitioner's publicly expressed beliefs that he and his associates were being victimized by unlawful governmental force, deserves the full protection of the First and Fourteenth Amendments. If "the freedom of speech" and the right "to petition the government for redress of grievances" means anything, then it must be acknowledged that the public assertions made by Westly Cook in the press (i.e. that he and his associates were being systematically subjected to gross violations of their constitutional rights by a political power in America that was being exercised "out of the barrel of a gun") are not the type of "evidence" that a court should allow a prosecutor to use to persuade a jury to impose the penalty of death. [13] 463 U.S. at 947 n.2. In that case the defendant's statement was clearly relevant to the issue being tried (Dawson, 503 U.S. at 168) and, thus, admissible at the sentencing phase.
In admitting the article the court allowed two additional references to "prior bad acts"; i.e. an open case pending against another Black Panther Party member, and an general accusation made by "police". The open case involved a person who had been arrested for allegedly possessing a stolen weapon in his home. That reference, while clearly prejudicial, had absolutely no relevance to the petitioner's trial. Indeed, the Pennsylvania courts have reversed numerous other convictions where of evidence of prior arrests had been admitted. Commonwealth v. Levene, 492 Pa. 287, 424 A.2d 865 (1981) (homicide reversed based on admission of prior arrests of defendant); Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977) (reversed where defense witness impeached with prior arrests); Commonwealth v. Reese, 475 Pa. 120, 379 A.2d 1312 (1977) (same); Commonwealth v. Katchmer, 453 Pa. 461, 309 A.2d 591 (1973) (same); Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969) (same). In Katchmer this Court gave its reason for disapproving such evidence by quoting from Wigmore on Evidence, as follows:
"As a general rule, however, there must be a conviction of the felony or misdemeanor before such evidence is relevant, because there is a vast difference between a conviction and a mere accusation. An inquiry as to a mere arrest or indictment is not permitted because an arrest or an indictment does not establish guilt, and the reception of such evidence would merely constitute the reception of somebody's hearsay assertion of the witness' guilt. 3 Wigmore, Evidence s 980(a) (3rd ed. 1940)."
Katchmer, supra at 464-65.
In this instance the evidence that "Defense Captain" Reggie Schell had been arrested for possession of a stolen gun carried with it both a hearsay assertion of that person's guilt, and a highly prejudicial implication of "guilt by association" against the petitioner - both condemned under Pennsylvania law. See Commonwealth v. Johnson, 516 Pa. 527, 533 A.2d 994 (1987). See also Cobb v. State, 209 Ga.App. 708, 790, 434 S.E.2d 513 (1993) (failure to object to prior bad acts of family members implying "guilt by association" was ineffective assistance of counsel). In Pennsylvania a character witness may not be impeached with evidence of a defendant's prior arrest, because an arrest is equally consistent with either guilt or innocence. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). Here there was no character witness and the petitioner had no prior arrest. Instead, the Commonwealth was simply allowed to "smear" the petitioner with evidence of the arrest of an associate, twelve years earlier.
The other allegation of "bad acts" is even more vague and unsupported, not to mention being irrelevant and prejudicial. Thus, at one point the article contains a "response" by unnamed police - apparently from some other city - who were said to have stated that their members had suffered unprovoked injuries and death at the hands of the Panthers: "Police have been shot at, they say, simply and they have shot back." (N.T.S.H. at 28). This type of vague allegation of "prior bad acts" directed at unnamed persons, and carried out by unnamed associates of the petitioner, should never be admitted against any defendant in a court of law. Indeed, it is precisely the type of allegation that was made by the Chicago police to justify the murder of Fred Hampton and Mark Clark; an allegation that hindsight proved to be false. See text supra at 14, quoting "Plaintiffs in Panther Suit 'Knew We Were Right,'" New York Times, November 14, 1982, Sec. 1, Part 2, page 82, col. 3.
The prosecution is fully responsible for the prejudice that predictably arose from evidence of petitioner's advocacy for, and past political association with, a disfavored group - the Black Panther Party. Prior to the prosecutor's examination of the petitioner, his attorney objected to any use being made of past newspaper articles (N.T.S.H. 17-18). The trial judge, however, gave the Commonwealth carte blanche permission to proceed (N.T.S.H. at 19). The prosecutor used this open-ended license to pluck quotations from the article entirely out of their context in an effort to represent to the jury that the petitioner was a member of the Black Panther Party [14] who had endorsed the use of violent force to execute his opponents. Thus, the prosecutor began his examination of petitioner by using the article as follows:
Q. Mr. Jamal, Let me ask you if you can recall saying something sometime ago and perhaps it might ring a bell as to whether or not you are an executioner or endorse such actions.
"Black brothers and sisters -- and organizations - which wouldn't commit themselves before are relating to us black people that are facing - - we are facing the reality that the Black Panther Party has been facing, which is - -"
Now, listen to this quote. You've often been quoted saying this:
"Political power grows out of the barrel of a gun."
Do you remember saying that, sir?
(N.T.S.H. at 21-22). An examination of the original article reveals that the prosecutor: 1) purposefully misrepresented the meaning of the petitioner's words in his preface; 2) removed the words from their context; 3) literally presented only parts of the original sentences; 4) misquoted the parts that were presented; and 5) paraphrased what remained so that it would appear to be even more damaging. Compare N.T.S.H. at 27, supra at page 6-9. For example, not only is there no mention of the fact that Westly Cook was protesting the recent killing of 28 members of his party (including the two who had been killed the month before), but the prosecutor actually neglected to read the highly relevant first few words of the sentence with which this quotation began: "'Since the murders,' says West Cook, Chapter communications Secretary, . . . ."
After extracting an explanation from petitioner that the phrase, which he had "often been quoted [as] saying," was a quotation "from Mao-Tse-Tung of the Peoples Republic of China," the prosecutor turned his attention to pressing petitioner on another isolated phrase in the article. "Do you recall saying: 'All power to the people'? Do you recall that?" (N.T.S.H. 23). This was perhaps the prosecutor's most cynical violation of the petitioner's constitutional right to protest. Article I, Section 2 of the Pennsylvania Constitution of 1874 was originally entitled "Power of People". The language of that section, which remains identical in this state's current constitution, reads as follows:
All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.
Article I, Section 2 ("Political Powers"). By focusing the attention of the jurors on this "radical" assertion of the petitioner's state constitutional rights, the prosecutor was attempting to convince the jury that petitioner should be put to death - because of his "longstanding disdain for the system." See Abu-Jamal, 521 Pa. at 216.
Given the Commonwealth's active effort to prejudice the petitioner through the use of selective quotations and misrepresentation, the petitioner had no choice but to present the article in its entirety in the hope that he could mitigate the damage suffered from the court's erroneous evidentiary ruling. [15] Once the article was in evidence, however, the prosecution continued to make use of its contents, including the petitioner's past statements and his political association with a disfavored group. Where, as here, the Commonwealth is allowed to introduce part of an inadmissible document, it is responsible for any prejudice that the defendant may suffer when the remainder is introduced in an effort to mitigate. See Commonwealth v. Charles, 270 Pa.Super. 280, 288-89, 411 A.2d 527 (1980); [16] Id. at 288. United States v. Konovsky, 202 F.2d 721, 727 (7th Cir., 1953); State Lake City v. Smith, 104 F. 457, 471 (8th Cir. 1900).
The prejudicial impact of the court's decision to admit the article, and the prosecutor's decision to exploit it, cannot be underestimated. The prosecutor's cross-examination of petitioner was almost exclusively focused on this material. By selectively removing petitioner's words from their original context, Mr. McGill transformed petitioner's graphic denunciation of an act of police-state brutality into a radical call for black people to take political power through the force of arms - perhaps the most frightening concept that any prosecutor could lay before a predominantly white jury. He then linked petitioner with Chinese Communist Party leader, Mao Tse-Tung - by demonstrating that he was sufficiently familiar with his published writings to make use of a well known quotation. He made sure that, in the jury's mind, petitioner was identified indelibly with a black militant organization of the late 1960's. And in a final damaging stroke, he fashioned "a badge of subversion" from a concept enshrined in the Pennsylvania Constitution ("Power of People") , and used it to portrayed the petitioner as a dangerous person - a threat to law and order. Abu-Jamal, 521 Pa. at 216.
There can be no doubt that the prosecutor made powerful use of this material to fashion a persuasive message for the jury; one sufficiently damaging to thoroughly undermine the "reliability" of the sentencing phase of this proceeding. In his closing argument the prosecutor continued to beat upon this drum - and it surely reverberated:
And maybe that was the siege all the way back then with political power, power growing out of the barrel of a gun. No matter who said it, when you do say it and when you feel it, and particularly in an area when you're talking about police or cops or shootings and so forth, even back then, this is not something that happened over night.
(N.T.S.H. at 68). Presenting himself as a defender of the First Amendment, but then painting petitioner as a political pariah who repeatedly broke the law (despite the absence of any prior record), the prosecutor continued:
Anybody can grasp or hold any kind of philosophy you want. That's fine. That's what this country happens to be all made of. But, one thing that cannot be tolerated is constant abuse of authority and daily law breaking. That simply is not permitted.
(N.T.S.H. at 71).
Ironically, the prosecutor's latter pronouncement captured the essence of First Amendment law as it had long been articulated by the United States Supreme Court. In America a citizen is entitled to hold and espouse any philosophy or political view, without fear of being prosecuted and punished for his abstract beliefs. This acknowledgment should lay to rest any question concerning the proper application of the standard for reviewing petitioner's claim on habeas corpus as set forth in Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA].
Section 2254(d)(1) of the AEDPA states as follows:
(D) An application of a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of that claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . .
The Pennsylvania Supreme Court adjudicated the petitioner's claim "on the merits" first on his direct appeal ( Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989)), and arguably a second time on his appeal from the denial of his Post-Conviction Relief Act petition. [17] Commonwealth v. Mumia Abu-Jamal, 553 Pa. 485, 720 A.2d 79 (1998). Therefore, the standard set forth in Section 2254(d)(1) is applicable to either the first or second decision of the Pennsylvania Supreme Court. If the decision of that court following the denial of petitioner's Post-Conviction Relief Act petition was a decision "on the merits," then Dawson is the relevant decision to consider in applying the standard articulated by the AEDPA
The AEDPA standard was given interpretation by the Third Circuit in Matteo v. Superintendent, 171 F.3d 877 (3rd Cir. 1999) (en banc). There the Court adopted, with some modification, the First Circuit's interpretation as articulated in O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998). See Matteo, 171 F.3d at 888. Separating out the two phrases "contrary to" and "unreasonable application," the Court accepted the two-step inquiry of O'Brien. In this case, a one-step inquiry is quite adequate, since it should be apparent that the analysis adopted by the Pennsylvania courts was contrary to settled First Amendment law. The Third Circuit described that first step of its inquiry as follows:
[W]e hold that the "contrary to" provision of AEDPA requires a federal habeas court first to identify the applicable supreme Court precedent and determine whether it resolves the petitioner's claim. . . . [W]e adopt O'Brien's holding that "[t]o obtain relief at this stage, a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." Id. at 24-25. In other words, it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome. . . .
We also emphasize that it is not necessary for the petitioner to cite factually identical Supreme Court precedent. Rather, the critical question is "whether a Supreme Court rule-by virtue of its factual similarity (though not necessarily identicality) or its distillation of general federal law precepts into a channeled mode of analysis specifically intended for application to variant factual situations- can fairly be said to require a particular result in a particular case." Id. at 25.
171 F.3d at 888-89.
Even if it were only the law at the time of petitioner's trial that was relevant, there was more than sufficient legal precedent flowing from United States Supreme Court decisions then to support petitioner's claim that his past exercise of the rights to free speech, to petition government for a redress of grievances, and to freedom of association, should not be used against him to inflict and impose punishment. An extensive body of First Amendment jurisprudence then held that government could not prohibit or punish the advocacy of beliefs, however pernicious. In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827 (1969), the Supreme Court had held that Ku Klux Klan could propagate its ideas of racial supremacy. Indeed, it had recently been decided that the Nazis could proclaim their antiSemitic beliefs in marches through Jewish neighborhoods. Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916 (1978). In DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255 (1937) the Court had held that Communists could speak and run for office. No matter how offensive or subversive, such speech was protected by our constitutional system. "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286 (1972).
It was equally clear that the right to freedom of association was guaranteed by the First Amendment.18 In a series of cases involving Communist Party membership and advocacy, the United States Supreme Court had affirmed the right of individuals to join political and quasi-political groups that "may embrace both legal and illegal aims" and to remain free of punishment in the absence of proof beyond a reasonable doubt judged strictissimi juris that the individual both had knowledge of the group's illegal aims and had the specific intent to carry them out. See Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469 (1961) reh. den. (1961); Noto v. United States, 367 U.S. 290, 299-300, 81 S.Ct. 1517 (1961); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064 (1957). See also United States v. Robel, 389 U.S. 258, 88 S.Ct 419 (1967). Similarly, the Court had held even that "[a]dvocacy and teaching of forcible overthrow of government as an abstract principle [by members of such groups] is immune from prosecution" under the First Amendment. Brandenburg v. Ohio, 395 U.S. 444, 453, 89 S.Ct. 1827 (1969); Yates, supra at 321-22.
Finally, prior Supreme Court decisions were legion in their support of the proposition that a an individual's peaceful words and actions intended to petition government for redress of grievance may not serve as a justification for the imposition of punishment. In 1966, in reversing the conviction for breach of the peace of five Negroes who staged a brief sit-in after they were denied service at a segregated library, the Court noted:
This is the fourth time in little more than four years that this Court has reviewed convictions by the Louisiana courts for alleged violation, in a civil rights context, of that States's breach of the peace statute. In the three preceding cases the convictions were reversed. Garner v. Louisiana, 368 U.S. 157, decided in December 1961, involved sit-ins by Negroes at lunch counters catering only to whites. Taylor v. Louisiana, 370 U.S. 154, decided in June 1962, concerned a sit-in by Negroes in a waiting room at a bus depot, reserved "for whites only." Cox v. Louisiana, 379 U.S. 536, decided in January 1965, involved the leader of some 2,000 Negroes who demonstrated in the vicinity of a courthouse and jail to protest the arrest of fellow demonstrators. . . . In each, the purpose of the participants was to protest the denial of Negroes of rights guaranteed them by state and federal constitutions and to petition their governments for redress of grievances.
Brown v. Louisiana, 383 U.S. 131, 133, 86 S.Ct. 719 (1966)(emphasis added). The Court reasoned that because it was "dealing with an aspect of a basic constitutional right - the right under the First and Fourteenth Amendments guaranteeing freedom of speech and of assembly, and freedom to petition the Government for a redress of grievances," the Louisiana statute could not "constitutionally be applied to punish petitioners' actions in the circumstances of this case." Id. at 141-42, 86 S.Ct. at 724. Later, the Court relied upon similar reasoning to reverse the convictions for disorderly conduct of approximately eighty Chicago residents who "marched in a peaceful and orderly procession form city hall to the mayor's residence to press their claims for desegregation of the public schools." Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 947 (1969). When an unruly crowd began to throw rocks, taunt the "niggers" and waive Ku Klux Klan signs, the demonstrators were arrested and taken away in vans. Id. at 128-29, 89 S.Ct. at 955-56. As Justice Black noted, the right to peaceably assemble and "'to petition the Government for a redress of grievances' is specifically protected by the First Amendment." Id. at 119, 89 S.Ct. at 951 (concurring). In a twist that holds close parallels to the case at bar, the Gregory jury was instructed to disregard the violent, threatening context in which the behavior of the protesters occurred. Id. at 122-23, 89 S.Ct. at 952. In like manner, prosecutor Joseph McGill distorted the context of the petitioner's attempt to place his grievances before the public through the medium of the press, and presented isolated words of protest as reasons for the jury to impose the ultimate punishment of death.
It was hardly a startling idea at the time petitioner was tried that this established body of First Amendment law should apply to the government's imposition of punishment at the time of sentence. In a case decided the preceding year, the Eighth Circuit cited with approval the following common sense declaration of a trial judge:
Consideration of political beliefs, as distinguished from criminal activity, would clearly be impermissible in determining defendant's sentences, because it would impair the rights of the defendants under the First Amendment, protecting public expression of their political beliefs, by words and symbols.
United States v. Bangert, 645 F.2d 1297 (8th Cir., 1981), reh. den. (1981). The court drew a distinction between the consideration of such beliefs and the judge's conclusion that the defendants had lied at trial. Id. See also United States v. Sachs, 679 F.2d 1015, 1021 (1st Cir., 1982) (judge did not consider defendant's political views at sentencing); United States v. Brown, 479 F.2d 1170, 1174 (2nd Cir., 1973) (basing sentence on "revulsion arising out of Brown's social or political views . . . would be improper"); O'Brien v. United States, 376 F.2d 538, 542 (1st Cir. 1967) ("fairness to the defendant requires that he be resentenced upon considerations affirmatively divorced from impermissible factors [his opposition to the Vietnam war]"), vacated on other grounds 391 U.S. 367, 88 S.Ct. 1673 (1968).
The Pennsylvania Supreme Court's first decision "on the merits" in this case came on the petitioner's direct appeal in 1989. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989). After the petitioner's trial, and before that decision, the District of Columbia Court of Appeals vacated a sentence and remanded on the basis of a similar First Amendment challenge. United States v. Lemon, 723 F.2d 922 (D.C. Cir., 1983). In relevant decision the prosecutor claimed that the defendant was a member of the "Black Hebrews" - a political/religious cult with members some of whom may have committed crimes. He presented the court with a sentencing memorandum that contained "a collection of newspaper and magazine articles" which detailed the nature of the organization, its beliefs and its alleged involvement in illegal activities. Id. at 925-26. On the strength of these articles, the prosecutor argued for a substantial period of incarceration. Id. at 926. In vacating the sentence, the D.C. Circuit explained that "[a] sentence based to any degree on activity or beliefs protected by the first amendment is constitutionally invalId." Id. at 938. It opined that the government cannot punish "mere membership in a religious or political organization that embraces both illegal and legal aims unless the individual specifically intends to further the group's illegal aims." Id. at 939. Consideration of the sentencing memorandum was improper, it declared, because the government had failed to show that the defendant possessed the specific intent to further any illegal aims that he might have shared with the group. Id. at 490.
Although Lemon was not a capital case, in such a case decided earlier that year the United States Supreme Court acknowledged a common principle directly applicable to the case at bar - one that was later cited by the Court in Dawson - i.e. that an aggravating circumstance is invalid if "it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected." Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733 (1983), quoted in Dawson, supra at 163-64. In distinguishing the prosecution's lawful appeal to the jury in Zant from those which are prohibited by the constitution, the Court made reference to the types of appeals that would unlawfully punish protected First Amendment activity. Thus, it explained:
Georgia has not, for example, sought to characterize the display of a red flag, cf. Stromberg v. California, the expression of unpopular political views, cf. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), or the request for a trial by jury, cf. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), as an aggravating circumstance. Nor has Georgia attached the "aggravating" label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant, cf. Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937) . . . . If the aggravating circumstance at issue in this case had been invalid for reasons such as these, due process of law would require that the jury's decision to impose death be set aside.
462 U.S. at 885, 103 S.Ct. at 2747.
Given the rich history of relevant First Amendment jurisprudence that pre-dated both the petitioner's trial, and his two appeals, amici curiae respectfully urge this Court to grant the Petition for Writ of Habeas Corpus for all the reasons stated above, and to give careful consideration to the petitioner's remaining claims.
CONCLUSION
For all of the above reasons, it is respectfully requested that this Court grant the Petition for Habeas Corpus filed by Petitioner Mumia Abu-Jamal based upon the First, Eighth and Fourteenth Amendments, pursuant to 28 U.S.C. 2254.
Respectfully submitted,
By
____________________________
KARL BAKER, ESQ.
AMERICAN CIVIL LIBERTIES UNION
Pennsylvania Affiliate
125 South Ninth Street, Suite 701
P.O. Box 1161
Philadelphia, PA 19105-1161
____________________________
EARL W. TRENT, JR, ESQ.
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE
Philadelphia Branch
1514 W. Cecil B. Moore Ave.
Philadelphia, PA 19121
1 "N.T.S.H." refers to the notes of testimony of the sentencing hearing held before Judge Albert F. Sabo in City Hall Courtroom 253 on July 3, 1982.
2 No objection was made.
3 Derrick Z. Jackson, of the Globe staff, reported:
The FBI engaged in perhaps the most intense infiltration and disinformation effort in its history. It helped the Chicago police plan a surprise raid on Hampton's apartment. Without provocation, officers sprayed the apartment with about 90 bullets. Hampton was killed in his sleep. Panthers who survived the raid testified they heard a policeman enter Hampton's bedroom and say: "That's Fred Hampton. Is he dead?" After two more shots, they said they heard an officer say, "He's good and dead now."
4 The 1987 "Tucker Commission" reported that, while 49 percent of a cross-section of city residents felt that the Philadelphia police "sometimes" engaged in the unnecessary use of force, when black and white residents were ask separately whether that behavior occurred "often", 28 percent of black residents expressed the belief that it did, as opposed to only 8 percent of white residents. See Philadelphia And Its Police: Toward A New Partnership - A report by the Philadelphia Police Study
5 At the time this case was tried, the Pennsylvania Supreme Court had explicitly validated the widely condemned, but nevertheless common practice of prosecutors striking blacks from Pennsylvania juries. Speaking for the Court in Commonwealth v. Henderson, 497 Pa. 23, 29, 438 A.2d 951, 953 (1979), Justice Flaherty had stated:
Put another way, it is not constitutional error for a prosecutor to challenge a black juror for the reason that the prosecutor believesvalidly or invalidlythat a black venireman because of the facts of the case, is less likely to be impartial than a white venireman. Put still more reductively, the race, creed, national origin, sex or other similar characteristics of a venireman may be proper considerations in exercising peremptory challenges when issues relevant to these qualities are present in the case.
6 See e.g., Brandenburg v. Ohio, 395 U.S. 444, 453, 89 S.Ct. 1827 (1969); Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469 (1961) reh. den. (1961); Noto v. United States, 367 U.S. 290, 299-300, 81 S.Ct. 1517 (1961); Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064 (1957).
7 On the petitioner's appeal from the denial of his Post Conviction Relief Act Petition, the Pennsylvania Supreme Court reaffirmed its decision both by declaring that "[o]ur prior ruling . . . is in complete accord with the decision in Dawson" and by ruling that "this issue has been finally litigated and warrants no further review, even in light of the subsequent decision in Dawson." Commonwealth v. Mumia Abu-Jamal, 553 Pa. 485, 565, 720 A.2d 79, 121-22 (1998) (citing Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997)). It is arguable that this constitutes a second decision "on the merits." See discussion of the Antiterrorism and Effective Death Penalty Act of 1996, infra at 28-33.
8 The question presented in this case is whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding. We hold that they do.
9 Justice Rehnquist cited several cases that have given protection to the first amendment, including Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659 (1964) and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1159, 1164 (1958), and acknowledged that the Court had noted in a previous death penalty appeal that "an aggravating circumstance is invalid if 'it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected.'" Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733 (1983). Dawson, supra at 163-64. The Zant decision was cited to the Pennsylvania Supreme Court by amici curiae on direct appeal.
10 Attorney General Mitchell was replaced by Edward H. Levi. In a recent obituary, Justice Scalia is quoted as stating that Mr. Levi "brought the department through its worst years." New York Times, March 8, 2000, at 25, col. 1. The article explains a reference by Justice Scalia to the "problems at the F.B.I." by noting: "The Federal Bureau of Investigation had been conducting domestic surveillance operations, under the code name Cointelpro, that were probably unconstitutional." Id. Understandably, the contemporary references that were made by petitioner to that same "surveillance" operation were less understated.
11 See Associated Press, Oct. 24, 1995 ("ACLU, NRA Unite in Criticism of Deadly Force by Federal Agents"); The Washington Post, Oct. 25, 1995, at 7, sec. A ("Coalition Urges Congress to Reject New Powers for Federal Law Enforcement").
12 The FBI and Cointelpro documents Judge Sabo refused to admit in evidence in the PRCA hearing would have further supported petitioner's view.
13 This is not a situation such as that presented at the murder trial in Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418 (1983), where:
"The trial judge noted five aborted attempts to select a victim from the streets of Jacksonville before Stephen Orlando was chosen, plus the taped threat made to white Jacksonville citizens that a race war had begun and none would be safe." 343 So.2d, at 1271, n. 4.
14 Contrary to the PCRA court's assertion, this first reference to the Black Panther Party was made by the prosecution.
15 See Commonwealth v. Nelson, 294 Pa. 544, 546, 144 A. 542, 543 (1929) ("where one party offers part of a conversation, the other is entitled to bring out the balance").
16 In Charles, the Pennsylvania Superior Court commented:
The previous introduction of the improper evidence by the Commonwealth had unfairly placed the defense in the difficult position of having to deal with it in its case. Such inadmissible evidence presented by the Commonwealth, over defense objection, cannot later be "ratified" by evidence presented by the defendant. The Commonwealth will not be permitted to use the error of the court below, which it has induced, to force appellant to waive his objection to the erroneous ruling.
17 See discussion in footnote 7 infra.
18 See e.g., Aptheker v. Secretary of State, 378 U.S. 500, 507, 84 S.Ct. 1659 (1964); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 543, 83 S.Ct. 889 (1963); Bates v. Little Rock, 361 U.S. 516, 522-23, 80 S.Ct. 412 (1958); NAACP. v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163 (1958); Commonwealth ex rel. Specter v. Moak, 452 Pa. 482, 487-90, 307 A.2d 884 (1973).
[posted 4/21/00]
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