PETITIONER'S APPLICATION FOR LEAVE TO AMEND THE PETITION FOR HABEAS CORPUS RELIEF

Refuse and
Resist!

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________

MUMIA ABU-JAMAL,
Petitioner,

MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections; and
CONNER BLAINE, Superintendent of the
State Correctional Institution at Greene;
Respondents

99 Civ. 5089 (Yohn)
THIS IS A CAPITAL CASE

PETITIONER'S APPLICATION FOR LEAVE TO AMEND THE
PETITION FOR HABEAS CORPUS RELIEF

Petitioner Mumia Abu-Jamal respectfully requests that the Court grant leave to amend the Petition for Habeas Corpus to the extent that he may proffer additional allegations further supporting his claim that his rights under Faretta v. California, 422 U.S. 806 (1975), were violated. Specifically, Petitioner seeks to amplify on his Faretta claim with specific allegations concerning the trial court's denial of his request to have assistance at trial from one John Africa. Attached hereto as an exhibit is the proposed amendment.

In support of this application, Petitioner states the following:

1. On June 27th, 2000 counsel for Petitioner was served with a copy of a memorandum of law from putative amicus Nick Brown, Esq. on behalf of 22 members of Parliament. Counsel saw the amicus brief for the first time when he received it on the 27th. Within one week counsel received the District Attorney's response in opposition to the filing. A hasty meeting with Mr. Jamal was then arranged at SCI Greene within 48 hours, giving rise to the filing of this application.

2. After reviewing this amicus submission, and after re-reviewing the Commonwealth's opposition submissions to Petitioner's three previously-filed memoranda of law, it became apparent that the Petition does not explicitly state a claim that the trial court's denial of Petitioner's request to have the assistance of John Africa independently deprived him of his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution.

3. Petitioner contends that the allegations in Claim 11 of the Petition, as it currently stands, implicitly embraces the contention that the trial court erred in not acceding to Petitioner's request at trial to have John Africa's assistance. This is so because the trial record amply reveals that much, if not all, of the disputatious colloquy between Petitioner and the trial judge emanated from the latter's recalcitrance in refusing to allow Petitioner to have John Africa's assistance. The trial judge's decision to strip Petitioner of his Faretta rights - and indeed, to banish him from over half of the trial proceedings - was rooted in the above-noted dispute.

4. As the Petition fully alleges, the trial judge's decision to strip Petitioner of his Faretta rights doomed the trial process as a travesty of due process right from the beginning. Anthony Jackson, a court-appointed attorney who admitted a month before trial commenced that he was too overwhelmed by the case to handle it alone, was thrust into the lead counsel role on the day of opening statements after the trial judge adamantly refused to permit John Africa to sit in an advisory capacity. The trial record is also very clear that Petitioner and Jackson no longer had a meaningful attorney-client relationship, and that this rupture was apparent to the judge, the prosecutor and the jury. In fact, the trial judge often exhibited a certain schadenfreude over Petitioner's difficulties with his unprepared, unwilling, and ill-equipped trial counsel.

5. The memorandum of law submitted by the Chicana/Chicano Studies Foundation brings into sharper focus what is implicit in Petitioner's habeas corpus Petition: the deprivation of his Faretta rights cannot be disentangled from the trial judge's recalcitrance in not permitting Petitioner to have the assistance from the one man in whom he trusted, John Africa. Petitioner's proposed amendment, therefore, simply seeks to make explicit what is already implicit in Claim 11.

WHEREFORE, for the reasons stated hereinabove, Petitioner respectfully requests that the Court grant him leave to file the attached proposed amendment to the Petition for Habeas Corpus.

Dated: New York, N.Y.
July 10, 2000

____________________________

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

DANIEL R. WILLIAMS
c/ Capital Defender Office
915 Broadway 7 th Floor
New York, N.Y. 10010
(212) 780-5620
Counsel for Petitioner Mumia Abu-Jamal

JULES EPSTEIN
Kairys, Rudovsky, Kalman & Epstein
924 Cherry St. Suite 500
Philadelphia, PA 19107
(215) 925-4400
Local Counsel for Petitioner

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________

MUMIA ABU-JAMAL,
Petitioner,

MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections; and
CONNER BLAINE, Superintendent of the
State Correctional Institution at Greene;
Respondents

99 Civ. 5089 (Yohn)
THIS IS A CAPITAL CASE

PETITIONER'S PROPOSED AMENDMENT TO
THE PETITION FOR HABEAS CORPUS

Petitioner Mumia Abu-Jamal respectfully submits the following proposed amendment to the Petition for Habeas Corpus:

CLAIM 30: THE TRIAL COURT'S RECALCITRANCE IN REFUSING TO PERMIT PETITIONER TO RECEIVE THE ASSISTANCE OF JOHN AFRICA LED TO THE UNCONSTITUTIONAL ABRIDGMENT OF HIS RIGHT TO REPRESENT HIMSELF

683. On June 17, 1982, the trial judge permanently stripped Petitioner of his right to act as his own counsel, after having temporarily stripped him of his pro se rights during the jury selection process.

684. The reason for the trial judge's action was rooted in his obstinate refusal to permit Petitioner to have the assistance of an individual who he trusted - namely, John Africa. Virtually all of the disputes between the trial judge and Petitioner centered on this request to have John Africa act in an advisory capacity as Petitioner mounted his own defense.

685. The trial judge wrongfully transmuted Petitioner's request for John Africa's assistance into a demand that John Africa enter the case as counsel for Petitioner. The trial judge then justified his decision to reject Petitioner's request on the irrelevant ground that John Africa was not a licensed attorney.

686. Petitioner's repeated insistence that he receive the assistance of John Africa ultimately led to the trial judge's decision to strip him of his pro se rights. It also led directly to his banishment from over half of the trial proceedings. See McKaskle v. Wiggins 465 U.S. 168 (1984)

687. In view of the fact that no rule of law bars a pro se defendant from receiving assistance from a lay person; and, indeed, as amicus makes clear, such a right is implicitly, if not explicitly, grounded in the constitutional right to self-representation, as revealed in footnote 32 of the Faretta decision, the trial judge's adamancy in refusing to permit Petitioner to have such assistance was unjustified, constitutionally in error, and that unjustified refusal led to the unconstitutional deprivation of Petitioner's right to represent himself.

688. This unconstitutional deprivation does not hinge on prejudice being shown from the trial court's rejection of Petitioner's request for John Africa's assistance. c.f. United States v. Chronic 466 U.S. 648, 104 S. Ct. 2039, 80 L.Ed.2d 657, Arizona v. Fulminante 499 U.S. 279 (1990), Sullivan v. Louisiana 508 U.S. 275 (1993).

_______________________
Leonard I. Weinglass
Counsel for Petitioner

[posted 11/29/00]

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