INTRODUCTION
This Supplemental Memorandum of Law is respectfully submitted pursuant to this Court's May 15, 2000 Order granting Petitioner Mumia Abu-Jamal's request for leave to submit supplemental briefing on the "effect of the recent decisions of the Supreme Court, both denominated Williams v. Taylor, interpreting the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA)." (Order 5/15/00) The discussion below isolates for analysis the impact on the instant Petition of the Supreme Court's decision in Terry Williams v. Taylor, No. 98-8384, 529 U.S. ___ (2000). [1]
I. THE SUPREME COURT'S INTERPRETATION OF 28 U.S.C.§2254(d)(1)
In Williams v. Taylor, the Court held that the Virginia Supreme Court applied the wrong legal standard in evaluating petitioner's penalty phase ineffective assistance claim, thereby rendering a decision "contrary to . . . clearly established Federal law"; it also held that the Virginia Supreme Court's application of the facts to the law amounted to "an unreasonable application of clearly established Federal law." These dual defects in the Virginia court's decision provided two independent bases for granting habeas relief under subdivision (d)(1).
In reaching its holding, a divided majority confronted the meaning of the two operative clauses in subdivision (d)(1) noted above. Because Justice O'Connor's concurring opinion secured the majority vote, her analysis of this provision controls. In a nutshell, subdivision (d)(1) requires a federal habeas court to make as many as four determinations: (1) whether the state court decision was "contrary to" federal law; (2) whether the decision "involved an unreasonable application" of federal law; (3) whether the federal law in question was "clearly established"; and (4) if so, whether it was clearly established "by the Supreme Court." [2]
A. The "Contrary To" Formulation
A decision is "contrary to law" when it is "in conflict," "inconsistent," or "not in conformity" with a conclusion of law upon facts. 4 Oxford English Dictionary 332 (2d Ed. 1989); Random House Webster's College Dictionary 344 (1999); Webster's Third New International Dictionary, Unabridged 495 (1986). Justice O'Connor posited two paradigm scenarios governed by the "contrary to" clause. First, a state court which applies the wrong legal standard established by the Supreme Court will have rendered a decision "contrary to" clearly established federal law. Id. at ___, slip op. at 7 (O'Connor, J., concurring). Second, a state court which confronts a set of facts that are "materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent" will also be deemed "contrary to" clearly established federal law. Id. at ___, slip op. at 8 (O'Connor, J., concurring).
The Court found that the Virginia Supreme Court rendered a decision "contrary to" clearly established federal law because it mistakenly believed that Lockhart v. Fretwell, 506 U.S. 364 (1993), "somehow modified or supplanted the rule set forth in Strickland [v. Washington, 466 U.S. 668 (1984)]." Id. at ___, slip op. at 16 (O'Connor, J., concurring). Significantly, Justice O'Connor presented a hypothetical scenario to illustrate more graphically how a state court decision would be "contrary to" the Court's Strickland decision, which is indisputably a "clearly established precedent" for AEDPA purposes:
If a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be "diametrically different," "opposite in character or nature" and "mutually opposed" to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a "reasonable probability that . . . the result of the proceeding would have been different."
Id. at ___, slip op. at 7-8 (O'Connor, J., concurring)(emphasis added).
The Pennsylvania Supreme Court committed precisely the error posited in the above hypothetical. That court set forth a three-part test for determining whether relief is warranted upon a claim for ineffective assistance of counsel:
(1) that the underlying claim is of arguable merit; (2) that counsel's action or inaction was not grounded on any reasonable basis designed to effectuate his client's interest; and (3) that but for that act or omission, the outcome of the proceedings would have been different.
Commonwealth v. Jamal, 553 Pa. 485, 505, 720 A.2d 79, 88 (1998)(emphasis added). The Pennsylvania Supreme Court indisputably applied a prejudice test that the United States Supreme Court expressly highlighted word-for-word to be wrong under Strickland. The consequence of this manifest error by the Pennsylvania Supreme Court, which afflicts both the guilt and penalty phases, is that this Court is "unconstrained by §2254(d)(1) because the state-court decision falls within that provision's 'contrary to' clause." Williams, 529 U.S. at ___, slip op. at 8 (O'Connor, J., concurring). [3]
B. The "Unreasonable Application" Formulation
The "contrary to" phrase is followed immediately in the same sentence by the "unreasonable application" phrase. Justice O'Connor rejected Justice Stevens' view that, because the two clauses appear brigaded together in a single sentence, Congress intended that they work in tandem to make a single point B namely, that a federal court can grant relief in the face of a prior state court adjudication if the state court made a serious mistake either in identifying the governing legal rule or in applying the proper rule in the instant case. Justice O'Connor disentangled the two phrases and ultimately infused most of the analytical muscle into the "unreasonable application" clause. Although the record here shows that the Pennsylvania Supreme Court expressly applied the wrong legal standard to adjudicate a constitutional ineffective assistance of counsel claim (thus satisfying the "contrary to" requirement of subdivision (d)(1)), the vast majority of claims presented by habeas petitioners will only invoke the "unreasonable application" clause.
Justice O'Connor identified two ways that a state court decision might be flawed as an "unreasonable application" of clearly established precedent. First, a state court decision which "identifies the correct governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner's case" would satisfy this clause to justify habeas relief. Second, the unwarranted extension of a legal principle to a given set of facts, or the unwarranted refusal to extend a legal principle to a given set of facts, would also satisfy the clause. Id. at ___, slip op. at 9 (O'Connor, J., concurring).
The Williams Court held that the Virginia Supreme Court not only invoked the wrong legal standard, it failed to marshal adequately the evidence in the record to arrive at a legitimate legal conclusion even if the proper legal standard had been applied. Id. at ___, slip op. at 30-34; Id. at ___, slip op. 15-18 (O'Connor, J., concurring). The quality of the marshaling of the evidence is, perhaps, the quintessential barometer of whether a state court decision constitutes an unreasonable application of clearly established federal law. While a mere difference in opinion as to how a legal issue should be resolved is not sufficient to justify habeas relief, a federal habeas corpus court, nonetheless, has an independent obligation to determine whether the state court's marshaling of the record evidence was thorough and fair -- a point that forms the core thesis in Petitioner's January 20, 2000 Memorandum of Law. Indeed, the Williams decision bolsters the point made in Kyles v. Whitley, 514 U.S. 419 (1995), that "[t]he duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case." See also Ford v. Wainwright, 477 U.S. 399 (1986) ("In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability."); Teague v. Lane, 489 U.S. 288, 311-14 (1989)(errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ). It is this aspect of the Williams decision which has the greatest impact on the case at bar.
II. THE IMPACT OF WILLIAMS ON THE CLAIMS RAISED IN JAMAL'S PETITION
The Williams decision reinforces the theoretical and doctrinal underpinnings to Jamal's January 20, 2000 Memorandum of Law ("the January 20th Memorandum"). That Memorandum was dedicated to highlighting the stubbornly biased and tendentious marshaling of the record evidence by the PCRA judge, which was then simply rubber-stamped by the Pennsylvania Supreme Court. The January 20th Memorandum, however, anchored the analysis in 28 U.S.C. §2254(d)(2); the true significance of Williams, for present purposes, is the holding that subdivision (d)(1) also requires intensive federal court investigation into the quality of the marshaling of record evidence.
Thus, Williams vindicates Jamal's contention in the January 20th Memorandum in two ways: first, it clarifies that application of the presumption of correctness, codified in subdivision (e)(1), is both premature and analytically insignificant for the vast bulk of the claims presented in the Petition; and second, it demonstrates that federal habeas courts must independently examine the entire record to determine whether the marshaling of the evidence in the state court was fair and thorough. As shown below, Williams itself provides a tutorial of sorts on how a federal habeas court must scrutinize a state-court record to assess the reasonableness of the state-court marshaling of the evidence.
A. The Impact of Williams on Jamal's Ineffective Assistance Claim in the Penalty Phase
The Williams Court's analysis of the Strickland claim is most obviously relevant to Jamal's penalty phase Strickland claim (but by no means exclusively, see Section IIB, infra). The prosecution presented several witnesses to prove the aggravating factor of "future dangerousness." Williams, 529 U.S. at ___, slip op. at 6. Defense counsel, who began preparing for the penalty phase a week before its commencement, presented the defendant's mother, two neighbors and a brief taped excerpted statement from a psychiatrist. The Court noted that the mitigation testimony was perfunctory: the psychiatrist's statement "did little more than relate Williams' statement during an examination that in the course of one of his earlier robberies, he had removed the bullets from a gun so as not to injure anyone"; the three other witnesses offered the view that the defendant was a "nice boy" and not a violent person. Williams, 529 U.S. at ___, slip op. at 6.
At the state habeas hearing, counsel for Williams adduced evidence of his nightmarish childhood and his cognitive deficits. Counsel also extracted a concession from the State's original psychiatric expert that Williams would not pose a future danger to society if placed in a "structured environment." Id. at 5. Although the trial judge concluded that trial counsel's representation fell below the standards set forth in Strickland, the Virginia Supreme Court concluded that the newly-proffered mitigation evidence "barely would have altered the profile of this defendant that was presented to the jury." Id. at 6. This conclusion mirrored that reached by the PCRA judge here: "This court consequently concludes that this argument [concerning Jamal's positive qualities and career achievements] would have been less than persuasive to a Philadelphia jury which possessed a great deal of common sense." (FOF 90) Indeed, the PCRA judge's finding was particularly perplexing in light of the Commonwealth's concession at the PCRA hearing that the mitigation evidence established that the shooting of Officer Faulkner (if perpetrated by Jamal) was not in keeping with his character. (7/26/95 Tr. 98-99, 191)
The Supreme Court rejected the assessment of the Virginia Supreme Court after independently examining the record evidence. The Court pointed to the fact that:
(1) Williams' trial counsel belatedly launched into an anemic investigation for the penalty phase (Jamal's trial counsel did not even do that much, failing even to give a moment's thought to litigating on Jamal's behalf) Williams, 529 U.S. at ___, slip op. at 30;
(2) Williams' trial counsel failed to uncover "extensive records graphically describing Williams' nightmarish childhood" and "available evidence that Williams was 'borderline mentally retarded'" (Jamal's trial counsel, although aware that a bevy of prominent Philadelphians and loving family members and friends were available to illuminate Jamal's compelling positive qualities, failed even to converse with them about the possibility of testifying) Id. at 31;
(3) Williams' trial counsel "failed even to return the phone call of a certified public accountant" who could have bolstered the argument that "Williams 'seemed to thrive in a more regimented and structured environment'" B a lapse reminiscent of Jamal's trial counsel in his failure to reach out to known mitigation witnesses. Id. at 31-32.
The Williams Court's independent examination of the record evidence led it to conclude that trial counsel's failure to adduce available mitigation evidence created a reasonable probability that the penalty phase outcome would have been different had the petitioner received constitutionally adequate representation. Id. at 32. Aside from the Virginia Supreme Court's invocation of the wrong legal standard, that court, the Supreme Court noted, "failed to evaluate the totality of the available mitigation evidence." Id. at 33. Specifically, the Virginia Supreme Court's insistence on analyzing the mitigation evidence within the narrow confines of determining whether it would have rebutted the State's "future dangerousness" claim blinded it to the legitimate possibility that "[m]itigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case." Id. at 34.
The Virginia Supreme Court's cramped analysis of the mitigation evidence mirrors the PCRA judge's back-handed dismissal of Jamal's mitigation evidence. According to the PCRA judge, the proffered mitigation evidence did nothing to blunt the abhorrence of the crime, and was, therefore, essentially useless. The PCRA judge's assessment of the record evidence, like that of the Virginia Supreme Court, betrays a deep misunderstanding of the vital role that mitigation evidence plays in capital litigation, stretching back from Lockett v. Ohio, 438 U.S. 586 (1978), Woodson v. North Carolina , 428 U.S. 280 (1976), and Eddings v. Oklahoma, 455 U.S. 104 (1982), to Skipper v. South Carolina, 476 U.S. 1 (1986), Buchanan v. Angelone, 522 U.S. 269 (1998), and Williams itself. [4] "In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence." Buchanan, 522 U.S. at 276. Because death is different, the penalty phase decision must "reflect a reasoned moral response to the defendant's background, character, and crime." California v. Brown, 479 U.S. 538, 545 (1987)(O'Connor, J., concurring). The PCRA judge was manifestly wrong to dismiss the proffered mitigation evidence because it spoke to Jamal's positive attributes and was not tied directly into the circumstances of the offense. See, e.g., Skipper, 476 U.S. 1 (positive prison adjustment admissible as mitigation even though not tied into circumstances of crime; mitigation is any evidence which might be a basis for justifying a sentence less than death). See also Pet. Mem. of Law, Dec. 6, 1999, at 77-78 (collecting cases). [5]
B. The Williams Decision's Impact On Petitioner's Other Claims
It would, of course, be wrong to cabin the Williams decision to those narrow circumstances where penalty phase ineffectiveness claims are at issue. The mode of record analysis engaged in by both Justices Stevens and O'Connor reinforce the Court's earlier intensive record review in Kyles v. Whitley. Williams and Kyles flatly refute the Commonwealth's essential message to this Court B namely, that it need only thumb through the pages of the state court decisions, satisfy itself that there is a patina of legitimacy to the analysis, and then simply invoke the presumption of correctness doctrine before putting the matter back onto the judicial assembly line where the ultimate destination is death.
This stingy conception of federal habeas review was not the one embodied in the AEDPA. Section 2254(d)(1) embodies a compromise solution to a controversy that raged for years. In Wright v. West, 505 U.S. 277 (1992), Justice O'Connor observed that Congress had often considered legislative bills that would have required federal habeas courts to defer to previous state court judgments. In the 104th Congress, which produced the AEDPA, the Republican leadership launched a final push for a "full and fair" program for habeas corpus B that is, erecting a statute that would bar habeas relief whenever a claim has been "fully and fairly adjudicated" previously in state court. The legislative record to the AEDPA is crystal clear that the "full and fair" program failed, largely due to the collaborative efforts of Senators Orin Hatch and Arlen Specter. See House Conf. Rep. No. 518, 104 Cong. 2d Sess. 111, reprinted in 1996 U.S. Cod & Admin. News 944; 141 Cong. Rec. S7828-35, S7849 (June 7, 1995); 142 Cong. Rec. S3447 (April 17, 1996). Congress, in addition to tightening the time frame in which capital post-conviction appeals would be litigated, endorsed through the passage of the AEDPA the codification of the Teague doctrine and the understanding that state court decisions which are "reasonable" would be respected. See Hearing on S.623 Before the Comm. on the Jud., U.S. Senate, 104th Cong., 1st Sess., at 3, 71.
While state court decisions serve as the "starting point" of analysis (which is a departure from the pre-AEDPA conception that the state court decision is nothing more than relevant precedent), the federal habeas court retains plenary Article III power to canvass the record to evaluate whether the state court decision-making was fair and thorough. The analysis engaged in by both Justices Stevens and O'Connor exemplify what is expected of federal habeas courts. Leaving aside the more straightforward inquiry into whether a state court invoked the proper legal rule or doctrine, the Williams Court illustrated how a federal habeas court must delve deeply into the record to determine if the state court's marshaling of the record evidence comports with the capaciousness of the legal rule or doctrine at issue. As shown above, the Virginia Supreme Court's cramped view of Strickland blinded it to an array of record evidence which, in the end, warranted federal habeas relief. The Court performed this precise record evidence evaluation in Kyles in order to reach the same result, in that instance in the context of evaluating a Brady claim.
Judicial blindness is one graphic way of understanding the deep flaws in the state-court decision-making in this case. Repeatedly, as Jamal's January 20th Memorandum demonstrates, the PCRA judge blatantly ignored huge clusters of evidence that Jamal adduced to substantiate his constitutional claims. The Pennsylvania Supreme Court, in turn, focused exclusively on whether the PCRA judge's findings and conclusions had some support in the record, no matter how specious the analysis, before rubber-stamping the result. The Pennsylvania Supreme Court did not evaluate the fairness and thoroughness of the PCRA judge's marshaling of the record, and therefore did not engage in the type of federal habeas analysis that the AEDPA mandates and that Williams and Kyles illustrate.
The most glaring example of judicial blindness can be found in the shoddy treatment of the claims associated with the testimony of P.O. Gary Wakshul. (Claims 3, 6 & 9 in the Petition). The PCRA judge concluded that "it was petitioner's personal decision to call Officer Wakshul at the last minute over Mr. Jackson's better judgment . . . ." (FOF 126) The Pennsylvania Supreme Court took a slightly different tack, concluding that the decision not to call Wakshul until the last day of trial was "merely a delay tactic" that backfired. Commonwealth v. Jamal, 720 A.2d 79, 92 (1998). Neither conclusion was accompanied by a citation to the record; and both completely ignore the trial judge's cruel remark to Jamal that he and his attorney "goofed." (7/1/82 Tr. 33-34) [6] Both courts went on to endorse Wakshul's explanation as to why he told a homicide detective, within less than two hours after the fact, that Jamal, over whom he stood guard "for the entire time," "made no comments" B namely, that he was too overwrought to remember to report hearing the rather memorable confession that Jamal allegedly blurted out twice while lying on the emergency room floor. These factual findings served as the predicate for the legal conclusion that Jamal's constitutional rights -- to effective assistance of counsel (guilt and penalty phase), to present a defense, and to a trial proceeding free from manufactured evidence -- were not abridged.
Under the Commonwealth's analysis, these claims can be summarily disposed of with the simple invocation of the presumption of correctness: the factual findings noted above are presumed correct under subdivision (e)(1); those presumptively correct findings provide some support for the legal conclusion that Jamal suffered no manifest prejudice from the failure to call Wakshul as a witness; and therefore, this Court is disempowered under the AEDPA to overturn the state courts' judgment on the claims associated with Wakshul's testimony. Williams emphatically proves that this particular approach to federal habeas litigation is wrong.
First, even if the factual findings noted above are presumed correct, that presumption does not operate as a bar to this Court's analysis of the record as a whole to determine whether, under subdivision (d)(1), the constitutional "prejudice" analysis was "reasonable"; nor does it bar this Court from determining whether, under subdivision (d)(2), those particular factual findings are "reasonable." In fact, this Court is statutorily obligated to engage in this dual "reasonableness" analysis
Second, as the discussion thus far makes clear, Williams mandates that this Court go beyond simply asking whether a particular legal judgment finds some support in the record. If the AEDPA authorized such an anemic inquiry into the record, the Virginia Supreme Court's holding in Williams would surely have been upheld. Williams requires an inquiry into the quality of the marshaling of the evidence -- a deficiency the Supreme Court found in Williams and Kyles. With respect to the PCRA evidence adduced from Wakshul, it is beyond question that the PCRA court and the Pennsylvania Supreme Court intentionally brushed aside the heart and soul of the evidentiary package supporting Jamal's constitutional claims deriving from Wakshul's testimony. Specifically, those courts did not marshal the following evidence:
This bullet-point summary of the un-marshaled evidence reveals the inadequacy of the state-court decision-making which cannot be glossed over with a simple invocation of the presumption of correctness. The Commonwealth repeats this analytical error for virtually all of Jamal's claims: it points to discrete factfinding, cloaks each with the presumption of correctness, asserts that it provides support to the sought-after legal conclusion, and then warns this Court that it may not disturb the state-court judgment. In each instance, as the January 20th Memorandum shows, the state-court decision-making involves highly selective marshaling of the record evidence to justify a particular sought-after legal conclusion. In each instance, a fair and thorough marshaling of the record evidence (as reflected in the January 20th Memorandum) would command a different legal judgment, thus mandating this Court's conclusion that the state-court adjudication of the claims are not reasonable under subdivision (d)(1), just as the discrete factfindings are not reasonable under subdivision (d)(2).
DATED:
NEW YORK, N.Y.
May 31, 2000
Respectfully Submitted,
LEONARD I. WEINGLASS
6 West 20th Street, Suite 10A
New York, NY 10010
BY: DANIEL R. WILLIAMS
c/o Capital Defender Office
915 Broadway 7th Floor
New York, N.Y. 10010
Counsel for Petitioner Mumia Abu-Jamal
1. The other Williams decision, Michael Williams v. Taylor, No. 99-6615, 529 U.S. ___ (2000), provides interpretive clarity to 28 U.S.C. §2254(e)(2) which, in Petitioner's view, needs no further elaboration in this submission. References in the text to "Williams," therefore, are to the Terry Williams decision, No. 98-8384.
2. The conceptual split dividing Justice O'Connor from Justice Stevens consists only in the fact that the latter "fails to give independent meaning to both the >contrary to' and >unreasonable application' clauses of the statute." Id. at ___, slip at 6. Justice Steven's merging of the two clauses is immaterial to the case at bar inasmuch as Jamal's legal analysis presented in the two previous Memoranda filed with the Court do not hinge on this construction of subdivision (d)(1).
3. Numerous other claims in the Petition were denied through deployment of incorrect legal standards. Claim #1 regarding witness Robert Chobert was rejected because the PCRA judge credited Chobert's self-serving claim that he did not have a "deal" with the prosecutor. Brady/ Giglio claims hinging on undisclosed favors or promises to a witness are not governed by the witness's characterization of the dealings with a prosecutor. Thus, the state-court decisions failed to invoke the proper legal standard. Similarly, with respect to claim #2 concerning witness Veronica Jones, the Pennsylvania Supreme Court, following the PCRA judge's lead, wrongly invoked precedent to the effect that recantation evidence is disfavored. This claim did not involve a recantation, but rather an explanation for a trial recantation which prejudiced severely Jamal's attempt to substantiate his theory of defense. Claim #2 involving witness Dessie Hightower was also dispensed with by reconfiguring the claim to justify invocation of irrelevant precedent. That claim concerned the discriminatory use of a polygraph examination by law enforcement, thereby reflecting a bias in the investigation. Suppression of the fact that a polygraph was administered constitutes a Brady violation. The state-court decisions reconfigured the claim to concern whether Hightower passed the polygraph, which was then jettisoned on the ground that Hightower was not credible. Claim #7 receives no treatment at all, other than the conclusory assertion that Jamal and his trial counsel did not have a ruptured attorney-client relationship. Claims ##11, 12, and 13, which involve Jamal's right to self-representation and presence for all material stages of the proceedings, were brushed aside without proper analysis under Faretta v. California, 422 U.S. 806 (1975) and Hopt v. Utah, 110 U.S. 574 (1884). Jamal's Batson claim (#16) also involved a conclusion which was "contrary to" clearly established precedent in that the state-court decisions wrongly held that a prima facie discrimination claim cannot be met with raw numbers indicating a high percentage of peremptory strikes against African-Americans. Claim #19 involving premature deliberations by certain jurors was rejected through invocation of the proposition that a defendant may not impeach a verdict through post-verdict testimony of jurors. Invocation of this legal principle, however, was erroneous because Jamal did not seek to challenge the manner in which the jury deliberated. Premature deliberations do not come within the ambit of the legal principle invoked by the Pennsylvania Supreme Court. Claims ##22 and 23 were denied through a misapprehension of the holdings in Dawson v. Delaware, 503 U.S. 159 (1992), and Caldwell v. Mississippi, 472 U.S. 320 (1985).
4. For a pithy survey of the vital role mitigation evidence plays in capital litigation, see Sumner v. Shuman, 483 U.S. 66 (1987).
5. In fact, Justice O'Connor, who set forth her own analysis of the record evidence, pointed to the fact that part of the menu of mitigation evidence that trial counsel bypassed was "the existence of 'friends, neighbors and family of [Williams] who would have testified that he had redeeming qualities." Id. at 18 (O'Connor, J., concurring)
6. The remark is properly characterized as "cruel" because Jamal had protested vociferously that his court-appointed attorney was, by his own admission, unprepared to handle the trial.
[posted 6/2/00]
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