JAMAL CASE: Legal arguments

zodiac zodiac at gold.interlog.com
Mon Jun 12 14:30:42 MDT 1995


Doug Henwood asked for someone to give LEGAL DETAILS of the Mumia
Abu-Jamal case. I, too, had found them to be scattered inconsistently
over several articles floating around cyberspace. But I need some
straight facts for the story I'm writing.

This afternoon, the Partisan Defense Committee (in Toronto) passed me
the following document -- a petition from Jamal's lawyers. It is filled
with facts.

I immediately scanned it in. Hope you find it useful.

Ken.
K.K.Campbell

P.S. Please forgive errors as being my own fault during transcription.


-- start here --

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

   IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, PENNSYLVANIA

                      COMMONWEALTH OF PENNSYLVANIA,
                               Respondent,
                                   V.
                            MUMIA ABU-JAMAL,
                           a/k/a Wesley Cook,
                               Petitioner


                           CRIMINAL DIVISION
                             Nos. 1357-1358
                        (January Sessions, 1982)



                   PETITION FOR POST-CONVICTION RELIEF
                   -----------------------------------


To The HONORABLE JUDGES OF THE CRIMINAL COURT:

Petitioner MUMIA ABU-JAMAL , through undersigned counsel, and upon the
Exhibits and the Memorandum of Law submitted herewith, respectfully
petitions this Court for relief pursuant to 42 Pa.  C.S. section 9541
et. seq. ("The Post-Conviction Relief Act" or "PCRA!'), on grounds that
his restraint and sentence of death results from a conviction and
sentence that was obtained in violation of the Constitution of this
Commonwealth and of the Constitution of the United States.  In support
of this petition, Petitioner alleges as follows:


                         PRELIMINARY STATEMENT


1.     Petitioner Mumia Abu-Jamal ("Mr.  Jamal") is presently
incarcerated at SCI-Greene, and is awaiting execution of a death
sentence upon a conviction of murder in the first degree and possession
of an instrument of a crime.

2.     By this petition, Mr. Jamal moves to vacate the judgment of
conviction and sentence entered on May 25, 1983, and requests a new
trial on both the guilt and penalty phase.  Mr. Jamal was tried by a
jury, Judge Albert Sabo presiding, and convicted of murder in the first
degree and possession of an instrument of a crime on July 2, 1982.
After a sentencing hearing on the following day, the jury voted to
impose the penalty of death. (7/3/82, Tr. 98) Post-trial motions were
filed and denied. (5/25/83, Tr. 1-157) The court, through Judge Sabo,
formally imposed the death sentence on May 25, 1983. (Id. at 163-66)
Mr. Jamal then pursued a direct appeal, which culminated in a decision
by the Pennsylvania Supreme Court affirming his conviction and death
sentence.  Com. v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), reh'g
denied, 524 Pa. 106, 569 A.2d 915 (1990).  For unknown reasons, two
justices recused themselves from consideration of the appeal.

3.     Thereafter, Mr. Jamal submitted an application for certiorari
review with the United States Supreme Court, which was denied.
Abu-Jamal v. Pennsylvania, 498 U.S. 881 (1990).  Mr. Jamal then filed a
petition for rehearing predicated on the Supreme Court's grant of
certiorari review in cases involving similar issues, which was denied.
Abu-Jamal v. Pennsylvania, 498 US. 993 (1990).  Mr. Jamal's motion for
leave to file a second petition for rehearing was also denied.
Abu-Jamal v. Pennsylvania, 501 U.S. 1214 (1991).

4.     Mr. Jamal was represented at trial by court-appointed counsel,
Anthony Jackson.  He was represented on appeal, also by appointment, by
Marilyn J. Gelb.

5.     On June 1, 1995, Governor Thomas Ridge signed a warrant for Mr.
Jamal's execution during the week of August 13, 1995.

6.     This is Mr. Jamal's first application for collateral relief
pursuant to the Post-Conviction Relief Act.


                        INTRODUCTORY STATEMENT


7.     Petitioner Jamal was convicted of a crime he did not commit and
sentenced to death based on his political views and history.

8.     Through this proceeding, Mr. Jamal will prove that his
conviction was the product of widespread police and prosecutorial
misconduct, countenanced and advanced by a hostile and biased trial
court which stripped him of his ability to raise a defense and then
violated his fundamental rights to a fair and impartial trial.

9.     Police coerced witnesses to testify against Mr. Jamal, rewarded
those who did, concealed exculpatory evidence of his innocence, forcing
at least one exculpatory witness to give a false statement and leave
the jurisdiction for fear of police harassment.  Not satisfied, a false
"confession" story was manufactured months later as a result of Mr.
Jamal's filing a complaint against the police.  The police witness who
could have rebutted that false claim went "on vacation" and was thus
unavailable for trial.  Testimony was adduced from prosecution experts
who tailored their scientific tests to preclude the possibility of Mr.
Jamal's innocence and offered speculation and hypothesis that, it turns
out, was utterly false.  None of this was rebutted at trial due to the
court's refusal to provide Mr. Jamal with minimal funds to launch an
investigation and hire experts in firearms and pathology and due to the
gross ineffectiveness of his stand-in counsel.

10.     For its part the trial court seated a jury from which blacks
were unconstitutionally excluded through the prosecution's use of
racially-biased peremptory challenges, then (in Mr. Jamal's absence)
removed the only juror selected by Mr. Jamal and replaced her with a
white juror who said he was biased against him.  The court denied Mr.
Jamal the right to represent himself, forced an unprepared, unwilling
and incompetent stand-in attorney to serve as Mr. Jamal's counsel, and
excluded Mr. Jamal from key portions of the trial.  The court refused
to grant a continuance to allow a critical defense witness to be called
to rebut the false confession claim, barred cross-examination of a
prosecution witness on his probationary status for a felony conviction,
and refused to permit the defense to show that the key prosecution
witnesses had a motive to lie due to police rewards and threats.

11. Then the court allowed the prosecution to make egregiously improper
and unfair jury arguments at both the guilt and penalty phases, and
allowed the unconstitutional use of Mr. Jamal's political activities
and statements from more than a decade earlier to convince the jury
that death was the appropriate sentence.

12.     Because of the apparent scope of the Commonwealth's misconduct
and suppression of evidence in his case, Mr. Jamal seeks a new trial.
He also moves for extensive discovery, the right to amend this
Petition, and a protective order.  For any factual issues that must be
resolved, the court should order an evidentiary hearing.


                          SUMMARY OF THE EVIDENCE


13.     Philadelphia Police Officer Daniel Faulkner was shot at
approximately 3:52 am. on December 9, 1981, in downtown Philadelphia on
Locust Street near the intersection with 13th Street.  He died
approximately one hour later at Jefferson University Hospital as a
result of the gunshot wound. (6/25/82, Tr. 43) Mr. Jamal was also found
at the scene.  He had been critically wounded by a gunshot and was
sitting in a pool of blood on the curb approximately four feet from
where Officer Faulkner had fallen. (6/2/82, Tr. 3.5; 6/19/82, Tr. 117)
Mr. Jamal was arrested and also taken to Jefferson University Hospital
for extensive surgery. (6/28/82, Tr. 74) The prosecution claimed Mr.
Jamal shot Officer Faulkner in the back and then stood over him and
shot him in the face.

14.     At the time, Mr. Jamal was a well-known award-winning
journalist and activist in the Philadelphia area.  Thirteen years
earlier, at 15 years of age, Mr. Jamal had been one of the founding
members of the Philadelphia Chapter of the Black Panther Party; and by
late 1969 he had become its communications secretary.  In the
mid-1970's, Mr. Jamal turned to the profession of journalism, and
became known throughout Pennsylvania for his journalistic activities,
including news broadcasts on National Public Radio, the Mutual Black
Network, the National Black Network, and his own talk show on -FM.  In
late 1980, at age 26, Mr. Jamal was elected chair of the Philadelphia
Chapter of the Association of Black Journalists.  The January 1981
issue of Philadelphia Magazine named Mr. Jamal "one of the people to
watch in 1981." (Exh. 27) Mr. Jamal remains an accomplished and
controversial author.  His writings have appeared in a number of
prestigious publications, including the Yale Law Journal.  In May 1995
his book, Live From Death Row, was published by the Addison-Wesley
Publishing Company.

15.     Because of his legal and constitutionally-protected political
affiliation with the Black Panther Party and his activities as a
journalist and activist critical of Mayor Rizzo and the police on
issues of race, police brutality and other social issues, Mr. Jamal
became a well-known object of police bias and animus.  Since his youth,
Philadelphia police maintained continuing surveillance of Mr. Jamal as
a vocal black activist. (Cooperstein Aff., Exh. 12) Despite their
constant scrutiny, police found no basis for linking Mr. Jamal to any
criminal activities during those years.

16.     At trial, the Commonwealth case had three elements: (i) three
eyewitnesses who claimed to identify Mr. Jamal as Officer Faulkner's
shooter, (ii) a purported "confession," and (iii) the presence of Mr.
Jamal's gun at the scene, allegedly the murder weapon.

17.     Examination of the trial record, newly discovered evidence, and
new expert analysis of the physical evidence shows that in each of its
elements; the Commonwealth case was false, having been twisted to
falsely implicate Mr. Jamal.

18.     Due to Commonwealth misconduct and the court's rulings, the
true facts of the case -- that Mr. Jamal was shot by Officer Faulkner
as Mr. Jamal approached the scene, and that a third black male then
shot Officer Faulkner and fled the scene -- were suppressed and not
established at trial.

19.     The Identification: The initial event from which the shooting
unfolded was not in dispute.  Officer Faulkner pulled a Volkswagen over
for a traffic stop. (6/25/82, Tr. 8.83) Although the number of people
in the Volkswagen was unclear, one occupant was Billy Cook, Mr. Jamal's
brother.  One of the Volkswagen's occupants got out of the car, and a
struggle with the officer began.  Mr. Jamal approached the scene from a
parking lot north of Locust Street.

20.     The prosecution's witnesses viewed the events at about 4:00 am
through the flashing red lights of Officer Faulkner's police car.
There were no lights on that side of the street.  The prosecution's
only black witness was Cynthia White, whom the other witnesses said was
not even there.  The white witnesses saw two or three black males and
were required to make cross-racial identifications under difficult
viewing circumstances.  Despite all this, the court refused Mr. Jamal's
requests for a line-up identification. (D-3; 1/5/82)

21.     The only witness who claimed Mr. Jamal had a gun in his hand
was the prostitute, Cynthia White. (6/22/82, Tr. 5.102, 5.515) Ms.
White's testimony was false.  She had not even witnessed the events at
issue and gave her testimony in return for undisclosed police favors.

22.     Ms. White claimed she was on the southeast corner of 13th and
Locust.  No other witness saw her there.  Dessie Hightower, a defense
witness, observed Ms. White a half block west of 13th Street at that
time. (Exh. 21)

23.     At the time of trial Ms. White was serving a sentence of 18
months for prostitution in Massachusetts. (6/21/82, Tr. 4.79; 4.85) She
had 38 previous arrests for prostitution in Philadelphia, and, as
readily acknowledged by the prosecution, had three open cases awaiting
trial in Philadelphia when she took the stand. (6/21/82; Tr. 4.80-81)

24.     Although the prosecution maintained that Ms. White had not been
offered a deal for her testimony, the evidence showed otherwise.  The
Commonwealth did not disclose that Ms. White had been assigned police
"protection" and continued to work the streets as a prostitute with
plainclothes police guarding her. (Greer Aff.  It 4.B, Exh. 2) Ms.
White was arrested at least twice in the weeks after the shooting.
(6/21/82, Tr. 4.176) Each time she revised her story.  Without
explanation, bench warrants against her were not prosecuted.  Police
told another prostitute, Veronica Jones, that Ms. Jones would be
allowed to work the street with impunity like Ms. White if Ms. Jones
would testify against Mr. Jamal. (6/29/82, Tr. 135-36) The court
excluded this testimony.

25.     To buttress Ms. White's false story the Commonwealth called
Robert Chobert, a cabdriver in his early twenties.  Confirming that Mr.
Jamal was shot first, Mr. Chobert admitted he did not see Officer
Faulkner shoot Mr. Jamal at any time and simply couldn't account for
Mr. Jamal being shot. (6/19/82, Tr. 267-69) On the night of the
shooting, he had told police the shooter was a totally different
individual than Mr. Jamal: a large, heavy man, about 6 feet and
weighing 200 to 225 pounds, standing over Officer Faulkner and
appearing to be shooting down at him. (6/19/82, Tr. 234-35) On the
stand, Mr. Chobert admitted Mr. Jamal, who at the time weighed only 170
pounds, did not look like someone who weighed 225 pounds and was not
"heavy." (6/19/82, Tr. 235)

26.     Even more significantly, Mr. Chobert told an arriving police
captain that the shooter "ran away." (6/l/82, Tr. 23, 78) Less than an
hour later Mr. Chobert repeated that assertion at police headquarters
when he told investigators that the person who shot Officer Faulkner
ran 30 steps away in the same direction that Hightower reported and on
the same side of the street. (6/19/82, Tr. 236; Exh. 15) On the stand,
however, Mr. Chobert retracted his initial statement and amended his
estimate to just 10 feet, saying that he must have been "mistaken" on
the night of the occurrence. (6/19/82, Tr. 237)

27.     Mr. Chobert also acknowledged he only heard the shots but never
saw a gun or any flashes from a gun barrel. (6/19/82, Tr. 261, 229,
230) Yet Mr. Chobert now insisted Mr. Jamal was the shooter.

28.     Mr. Chobert changed his account and his identification to
implicate Mr. Jamal.  He was clearly susceptible to police pressure
because he was on probation for a felony arson conviction because he
had agreed to throw a Molotov cocktail at a school for pay. (6/19/82,
Tr. 221-22) The trial court determined this evidence of Mr. Chobert's
motive to lie could not be presented to the jury. (6/19/82, Tr. 223)
Mr. Chobert's two convictions for driving while intoxicated were
excluded as well despite his earning his livelihood driving a cab.
(6/19/82, Tr. 226)

29.     A third prosecution witness, Mark Scanlan, misidentified Mr.
Jamal at the scene as the driver of the Volkswagen. (6/25/82, Tr. 8.46,
8.12) Clearly, Mr. Scanlan could not tell which of the black males was
which, or who shot the officer. (6/25/82, Tr. 8.8,8.12) Scanlan also
contradicted the prosecution theory that Officer Faulkner fell to the
ground as the result of the first shot, testifying that Officer
Faulkner didn't fall directly down as the result of the first shot.
(6/25/82, Tr. 8.33)

30.     Scanlan, who had been drinking, admitted there was 'confusion"
about what he saw, that his testimony was based on his assumptions
about what must have happened, and that he "could have been mistaken"
about where the events happened. (Id. 8.33, 37, 65, 68)

31. The 'Confession": The prosecution claimed Mr. Jamal confessed as he
lay with his arms handcuffed behind him on the emergency room waiting
room floor just after he arrived.  Yet Doctor Regina Cudemo was present
and did not hear the claimed confession.  Instead, she saw an officer
apparently kick Mr. Jamal and heard Mr. Jamal moan. (6/29/82, Tr. 24)
Doctor Anthony V Coletta, treated Mr. Jamal within five to ten minutes
of his arrival. (6/24/82, Tr. 66, 73, 167; Tr.  Exh.  D - 14) He found
Mr. Jamal to be "weak ... on the verge of fainting .. if you tried to
stand him up, he would not have been able to stand." (6/28/82, Tr.
28.76)

32.     Although Doctor Cudemo did not hear Mr. Jamal say anything, and
Doctor Coletta found Mr. Jamal to be barely conscious, two Commonwealth
witnesses claimed over two months afterwards that Mr. Jamal was
struggling violently and shouted out a confession.  These two witnesses
were Officer Garry Bell, Officer Faulkner's partner and "best friend,"
and a hospital security guard, Priscilla Durham, who first denied
knowing Officer Faulkner, then admitted talking to him on a number of
occasions, sometimes over coffee. (6/24/82, Tr. 44, 38, 156) Ms. Durham
acknowledged crying when informed he had died. (6/l/82, Tr. 115)

33.     Although Officer Bell made a log report that night and
volunteered a statement to homicide detectives the following week (Exh.
24), and Ms. Durham had continuous contact with police, neither one
reported hearing the supposed "confession" until months later when they
were interviewed by detectives from Internal Affairs who were
investigating a complaint initiated by Mr. Jamal for having been abused
by the police in the hospital.  Bell's interview occurred on February
25, 1982, and Priscilla Durham's sometime in March, 1982. (6/24/82, Tr.
140, 169, 45)

34.     All the witnesses agreed that Mr. Jamal was too feeble and weak
to walk into the hospital on his own power.  Officers were with him
without interruption from the moment he entered the hospital.  One of
those officers, Gary Wakshul, stayed with Mr. Jamal from the time he
was driven from Locust Street until the doctors started treating him in
the hospital.  Wakshul wrote a police report immediately after the
episode in which he described being with Mr. Jamal throughout this
period, noting "During this time the negro male made no statements."
(7/l/82, Tr. 5 1) The jury, however, never heard from Wakshul because
the police made him unavailable by sending him "on vacation."

35.     THE GUN AND PHYSICAL EVIDENCE: The gun was not shown to have
fired the fatal shot. (6/23/82, Tr. 108) In fact, the prosecution
either did not perform or did not report sufficient test results to
show whether the gun was recently shot or fired the fatal bullet.

36.     The Commonwealth's ballistics expert performed tests of the
bullet removed from the officer, but these tests were inconclusive as
to identification. (6/23/82, Tr. 108) The Commonwealth apparently did
not perform certain tests which could have excluded Mr. Jamal's gun.
(Fassnacht Aff.  I 4.B, Exh. 3)

37.     Ballistician George Fassnacht, whom the defense has now
retained, has reviewed the police reports and in his opinion the
reported police ballistics tests were incomplete, and Mr. Fassnacht
would have tried to perform additional tests which might have excluded
Mr. Jamal's gun as a possible murder weapon. (Id.) Further, Mr.
Fassnacht concludes that based on the existing evidence regarding
Officer Faulkner's jacket, he would have expected nitrate residue to be
found if Mr. Jamal's gun fired the bullet which hit Officer Faulkner in
the back. (Id. 11 4.A) There was none.

38.     Although Mr. Jamal was taken into custody immediately after the
shooting, no test was employed to determine if he had recently fired a
weapon -- a test ordinarily done in such a case. (Id.  If 4.D)
According to expert Fassnacht, the test for determining if a weapon has
been recently fired is a simple one: simply smell the barrel for the
unquestionable odor of gunpowder. (Id.  I 4.C) Surprisingly, the
police, upon recovering Mr. Jamal's gun moments after the shooting,
failed to apply this test -- or if they did, covered up the result.
(See Exh. 23)

39.     Furthermore, the Medical Examiner judged the fatal bullet to be
a .44 caliber. (Exh. 26) Mr. Jamal's gun was a.38 caliber pistol.

40.     The prosecution argued that Mr. Jamal was shot while allegedly
standing over a falling Officer Faulkner.  That claim is medically
impossible because of the downward trajectory of Mr. Jamal's bullet
wound. (Hayes Aff.  It 4, Exh. 4) Since trial, Mr. Jamal's counsel has
retained the services of an expert pathologist, John A- Hayes, Jr.,
M.D. Dr. Hayes, a highly qualified medical examiner, has reviewed the
medical evidence.  In Dr. Hayes's opinion, the prosecution's theory of
how Mr. Jamal was shot was medically impossible. (Id.)

41.     The prosecution attempted to hide this fact by relying on Dr.
Coletta's theory that the bullet could have pursued a downward path as
the result of a "ricochet" or "tumble." Dr. Coletta's opinion bespeaks
his acknowledged lack of expertise.  Dr. Hayes unqualifiedly dismisses
such a theory as unfounded based on the medical evidence. (Id.)

42.     Moreover, Dr. Hayes contradicts the Medical Examiner's finding
that the gunshot wound to Officer Faulkner's back was a contributing
cause of death.  U. If 6)

43.     A defense attack on the medical evidence and the competence of
the autopsy would have been buttressed by the fact that the Assistant
Medical Examiner failed to detect a second wound in Officer Faulkner's
throat during the autopsy. (6/25/82, Tr. 170-74) Then, when this wound
was discovered, it was not disclosed to the defense.  Nor were the
autopsy slides which reflected the second wound. (Id.)

44.     Mr. Jamal, an indigent defendant, lacked the resources
necessary to test the evidence and challenge the prosecution's expert
testimony.  The court denied Mr. Jamal's requests for necessary funds
to retain and pay experts. (Jackson Aff. 1 4, Exh. 1; 4/29/82, Tr.
10-11; 5/13/82, Tr. 16-18) With expert assistance, Mr. Jamal would have
been able to show that the evidence disproved the prosecution's
theories, and that the prosecution experts had tailored the scientific
tests to preclude the possibility of Mr. Jamal's innocence.

45.     The Shooter Flees: No less than four witnesses to the shooting,
situated in four different locations on Locust, including a key
prosecution witness, reported seeing a person, identified as the gunman
who shot Officer Faulkner by one of them, flee before the police
arrived.  All said he ran east on Locust on the south side of the
street in the direction of Camac Street, an alleyway which intersects
the street and provides a ready escape route.

46.     Dessie Hightower, called by the defense, testified that less
than 13-15 seconds after the shooting stopped he saw a person who
looked Jamaican (because he wore dreadlocks) running east down the
south side of Locust past a residential hotel on the corner where Camac
joins Locust. (6/28/82, Tr. 126-127, 149-50, 152) Police demanded that
Hightower take a polygraph test on the issue of his seeing the shooter
flee.  Hightower swears he took the test and passed. (Hightower Aff.,
Exh. 5) The defense was never apprised of that fact.

47.     As described above, witness Robert Chobert initially reported
that the shooter ran away, or ran thirty steps (about the distance to
Camac Street), but recanted this story-y under police pressure.
(6/l/82, Tr. 23, 78; 6/19/82, Tr. 236-37; Exh. 15)

48.     Veronica Jones, called by the defense, also told homicide
investigators during her initial interview that one or more people ran
from the scene ("sort of jogging"). (Exh. 22) After the gunfire stopped
she recalled seeing substantially what Mr. Chobert and Hightower had
reported: someone running in an easterly direction on the south side of
Locust.  However, after being arrested, questioned for five hours, and
offered a deal, Ms. Jones denied on the stand ever telling the
interviewing detectives anything about anyone fleeing the scene.
(6/29/82, Tr. 99, 106) This was after police told her she could work
the street with impunity like Cynthia White if she implicated Mr.
Jamal. (6/29/82, Tr. 135-36, 129) The trial court excluded this
testimony. (6/30/82, Tr. 4)

49.     Debbie Kordansky, a resident of the St. James Hotel which
overlooked the scene of the shooting, reported hearing gunshots between
3:45 and 4:00 am.  Shortly thereafter, she looked out her window and
'saw a man running on the south side of Locust Street." (Exh. 18)

50.     In all, two people to the west and behind the police car, one
person to the east and in front of the police car, and one person north
and high above the scene, all reported seeing someone flee down the
south side of Locust after the shooting.  No follow-up investigation of
these claims was ever done.  On the contrary, police coerced witnesses
to recant that testimony.

51.     THE SUPPRESSED EVIDENCE: Police engaged in widespread efforts
to suppress evidence favorable to Mr. Jamal.

52.     New evidence reveals that another witness was intimidated by
the police so severely that he left Philadelphia prior to trial for
fear of police harassment.  This witness, William Singletary, reported
that Mr. Jamal was not the shooter and that the true shooter was a
third black male who fled the scene.  He also saw that Cynthia White
was not at the scene during the shooting, but arrived later.  He was
forced by police to sign a false police statement that he did not see
anything.

53.     Another witness, Robert Harkins, was driving past in his
taxicab and saw the shooter, who was "taller" and "heavier" than
Officer Faulkner. (Exh. 17) Mr. Harkins was shown a photo array, but
that fact was never revealed to the defense.  Apparently Mr. Harkins
could not identify Mr. Jamal as the shooter, since he was not called as
a trial witness by the Commonwealth.  Mr. Harkins was also told not to
talk to the defense. (Buechler Aff., Exh. 6)

54.     As discussed above, police coerced witnesses White, Jones and
Chobert, made Officer Wakshul unavailable for trial, and suppressed the
Hightower polygraph.  Police did not disclose the deal made to protect
Ms. White while she worked as a prostitute.  Nor did police disclose
their five hour interview of Veronica Jones in January 1982, in which
they offered her the same deal.

55.     Philadelphia police conducted surreptitious surveillance of Mr.
Jamal from his youth as a member of the Black Panther Party.  Copies of
reports were maintained in police files.  This evidence of police bias
against Mr. Jamal was not turned over to the defense.  Further, these
files are evidence that despite the constant scrutiny of Mr. Jamal by
the police he engaged solely in constitutionally protected speech and
not in any criminal activity. (Cooperstein Aff., Exh. 12)

56.     Even to this day, as Mr. Jamal has prepared this Petition, the
Commonwealth maintains unlawful, intrusive surveillance of Mr. Jamal.
The Commonwealth has interfered with and intruded into Mr. Jamal's
privileged communications with counsel.  The Attorney General has now
acknowledged that classic legal privileged correspondence from Mr.
Jamal's legal team, including counsel's strategy memos, were copied and
maintained in the Commonwealth's files. (Krakoff Aff., Exh. 13)

57.     Because of the Commonwealth's pervasive concealment and
interference with the evidence in this case, Mr. Jamal seeks a
protective order to prevent the Commonwealth from harassing, inducing,
intimidating or coercing potential witnesses, experts, or investigators
in this matter, or otherwise communicating with such witnesses about
this case, without prior notice to and the presence of Mr. Jamal's
counsel.


                       SUMMARY OF THE PROCEEDINGS


58.     Officer Faulkner's death and the charges against Mr. Jamal, a
prominent black journalist and activist, sparked widespread media
coverage and polarized Philadelphia.  At the first pre-trial hearing,
Judge Ribner commented: "I know there are certain cases that have
explosive tendencies in this community, and this is one of them."
(1/5/82, Tr. 66) Of approximately 80 jurors in the' jury pool, all but
seven prospective jurors were familiar with the media coverage of the
case. (6/9/82, Tr. 105; 6/10/82, Tr. 4.19; 6/11/82, Tr. 5.19; 6/15/82,
Tr. 19; 6/16/82, Tr. 378)

59.     Faced with charges of killing a police officer, Mr. Jamal's
efforts to prove his innocence were frustrated.  Before trial, Mr.
Jamal's counsel charged that the prosecution was hampering the defense
by intimidating witnesses. (4/29/82, Tr. 14-15; 34) As discussed above,
evidence revealed at trial and since confirms that the Commonwealth
deliberately suppressed the true circumstances of shooting by coercing
and threatening witnesses and failing to disclose the use or results of
polygraph and photo identifications.  Although the court had previously
granted the prosecution the right to photograph Mr. Jamal in the
hospital and thus use the photographs to assist witnesses in their
identification (D-1; 12/21/82), the court denied Mr. Jamal the right to
a fair and non-suggestive line-up. (D-3; 1/5/82)

60.     Mr. Jamal petitioned the court to appoint four experts -- an
investigator, photographer, pathologist and ballistician. (D-4 through
D-7; 1/20/82) The court authorized Mr. Jamal to employ these experts,
but allowed only $150 in expenses for each expert, and repeatedly
refused to authorize any additional funds. (Id.; Jackson Aff. @ 4, Exh.
1; 4/29/82, Tr. 10-11; 5/13/82, Tr. 16-18) Although police conducted
over 100 witness interviews, the addresses and phone numbers of the
witnesses were deleted from the interview reports provided to the
defense.  The deletion of this critical information made it virtually
impossible to locate most of these witnesses.  The court denied Mr.
Jamal's requests for this additional information. (Jackson Aff.  p4,
Exh. 1; see 4/29/82, Tr. 14-15)

61.     On May 13, after his repeated requests for resources for
assistance were denied, Mr. Jamal orally petitioned the court to be
permitted to represent himself. (5/13/82, Tr. 53) The court immediately
granted the request, and appointed Mr. Jackson as back-up counsel.
Prior to the pre-trial hearing on Mr. Jamal's Motions to Suppress, Mr.
Jamal restated his desire to represent himself.  Mr. Jamal also advised
the court that he did not want Mr. Jackson to serve as backup counsel
and wanted to be assisted by one John Africa, a non-lawyer.  The court
permitted Mr. Jamal to represent himself, but denied the request for
assistance by Mr. Africa, instead ordering Mr. Jackson to serve as
backup counsel over Mr. Jamal's and Mr. Jackson's protest. (6/l/82, Tr.
2-38)

62.     Mr. Jamal served as his own counsel in the Motion to Suppress
hearing, in which he questioned fifteen witnesses.  Mr. Jamal also
served as counsel during the first two days of jury selection, without
incident.  He questioned 23 venire members, successfully challenging
two for cause, defeating a government challenge for cause, and also
exercising three peremptory challenges. (6/7/82, Tr. 149, 163, 174;
6/8/82, Tr. 46, 56, 69, 136)

63.     At the start of the third day of voir dire, the court
precipitously ruled that Mr. Jamal had to turn voir dire over to Mr.
Jackson, or the court would take it over. (6/9/82 Tr. 18) Mr. Jamal
refused to waive his right to self-representation, and the court took
over voir dire. (Id. 3.19) When Mr. Jamal and Mr. Jackson refused to
provide the court with proposed questions, the court held Mr. Jackson
in contempt and sentenced Mr. Jackson to 6 months imprisonment. (Id.
22) Then, under protest, Mr. Jamal gave in and agreed to have Mr.
Jackson conduct voir dire on his behalf (Id. 105-08)

64.     During the next several days, Mr. Jamal raised objections to
the court's rulings, requesting to have his pro se rights restored and
to have John Africa assist him at counsel table. (6/11/82, Tr. 199;
6/16/82, Tr. 498; 6/17/82, Tr. 48-60) Ultimately, the court suggested
that Mr. Jackson make an emergency appeal to the Supreme Court for
guidance on the question of his role in the case. (6/17/82, Tr. 116)
Mr. Jackson stated he could not appeal because Mr. Jamal was still
counsel of record. (Id. 118) The court stated: "Well, if you're asking
me to remove him, I'll remove him.  I'll make it easy for you." (Id.)
Ultimately the Supreme Court denied Mr. Jackson's appeal to permit Mr.
Jamal to represent himself, to remove Mr. Jackson as backup counsel,
and to permit John Africa to assist Mr. Jamal.

65.     When proceedings next resumed in open court, Mr. Jamal spoke to
protest the denial of his right to self representation.  The court
thereupon ordered that Mr. Jamal be removed from the courtroom. (W.
2.90-91)

66.     During the course of jury selection, the prosecution used
eleven peremptory challenges to excuse black jurors.  The resulting
jury included only three black jurors.  One of these was removed,
outside Mr. Jamal's presence and without his knowledge, to be replaced
by a white alternate juror.  This black juror, Jeannie Dawley, was the
only juror to be selected during the period when Mr. Jamal was allowed
to conduct voir dire on his own behalf. (6/7/82, Tr. 187) The white
alternate who replaced Ms. Dawley, Robert Courchain, had stated his
bias against Mr. Jamal. (6/16/82, Tr. 393-95) 67. Mr. Jamal will prove
that at least three white jurors, including the juror ultimately
selected as foreman, formed a grouping which met and deliberated
throughout the trial, apart from the black jurors. (Hawkins Aff., Exh.
10)

68.     Although Mr. Jamal sought to represent himself and had prepared
the defense case for trial, he was not even present for large portions
of the trial because the court repeatedly ordered his exclusion. (@
Point VI, @) During these periods of exclusion, the court did not
provide Mr. Jamal any means to monitor the proceedings or to consult
with Mr. Jackson while court was in session.

69.     Because Mr. Jamal was precipitously denied his right to
self-representation, his unwanted backup counsel, Mr. Jackson, was
thrust into the role of trial counsel against his own wishes, without
adequate preparation.  He even failed to interview defense witnesses
before they took the witness stand. (6/29/82, Tr. 137; Jackson Aff.  It
5, Exh. 1)

70.     In addition to Mr. Jackson's ineffective performance, the
court's rulings precluded Mr. Jamal from presenting a defense.  As
discussed, the officer who was with Mr. Jamal from the time of his
arrest until his hospital treatment began stated in a police interview
that Mr. Jamal had made no comments.  The trial court refused to grant
a continuance to permit the witness to be located and testify. (Id.
46-48)

71.     The court also excluded Veronica Jones' testimony that Sixth
District police had offered to allow her to avoid arrest if she would
testify that she saw Mr. Jamal shoot the officer intentionally, and
that police told her a similar deal had been struck by Cynthia White.
(6/29/82, Tr. 129-35) Further, the court refused to allow Mr. Jamal to
show that Commonwealth witness Chobert had been convicted of committing
arson for hire and was on probation for that offense. (6/19/82, Tr.
216-23)

72.     In protest of the court's rulings denying his rights to
represent himself, to select a jury of his peers, and to face and
examine witnesses, Mr. Jamal refused to take the stand to testify in
his defense. (7/l/82, Tr. 41)

73.     In closing argument, the prosecutor ridiculed Mr. Jamal's
efforts to assert his Sixth Amendment right to self-representation and
effective assistance of counsel of his choice. (7/l/82, Tr. 14748) The
prosecutor also made veiled negative references to Mr. Jamal's exercise
of his.  Fifth Amendment right not to testify. (Id. 172) The prosecutor
vouched for witness Robert Chobert, and falsely stated that there was
no evidence Mr. Chobert had a motive to lie, even though the prosecutor
had caused the exclusion of evidence Mr. Chobert was on probation and
therefore had such a motive. (Id. 182-83) The prosecution also referred
to evidence not in the record to bolster the testimony of Priscilla
Durham. (Id. 173) Finally, the prosecutor asked the jury in this high
profile case which had polarized the city to convict Mr. Jamal because
the people of Philadelphia demanded it. (Id. 172, 187)

74.     The jury was charged and began deliberations on July 2, 1982,
the Friday of the July 4 weekend.  During the day, the jury requested
to be reinstructed on the elements of first and third degree murder and
voluntary manslaughter. (7/2/82, Tr. 54) The jury returned a verdict of
guilty on the first degree murder and possession counts. (Id. 68-69)

75.     On the following day, the Saturday of the July 4th weekend, the
jur-y heard evidence regarding the penalty.  Mr. Jackson made no
attempt to prepare for the penalty phase hearing. (Jackson Aff.  If 7,
Exh. 1) At the beginning of the defense evidence, the court permitted
Mr. Jamal to make a statement to the jury that he was innocent, and to
protest the denial of his rights throughout the trial. (7/3/82, Tr.
10-16)

76.     Then the court permitted the prosecutor to "cross-examine" Mr.
Jamal on his 'jury statement. The prosecutor, over objection, asked
questions regarding Mr. Jamal's courtroom behavior such as: "What is
the reason you did not stand when Judge Sabo came into the courtroom?"
(7/3/82, Tr. 20) He went on to question Mr. Jamal's teenage political
views as a member of the Black Panther Party in the 1960's. (Id. 21-23)

77.     In summation, the prosecutor, over numerous objections,
exploited this improper line of crossexamination to argue that Mr.
Jamal's political history and confrontations with the court justified a
death sentence. (Id. 66-70) Over objection, the prosecution falsely
suggested that the jury would not be responsible for the sentence
because it would ultimately be decided on appeal. (Id. 71-72) The
prosecution further violated Mr. Jamal's Fifth Amendnent right not to
testify. (Id. 59-60)


                       SUMMARY OF GROUNDS FOR RELIEF


78.     The legal grounds upon which relief is requested are as
follows:

Trial Errors
------------

I. The Commonwealth withheld materially favorable evidence from the
defense, and knowingly used false evidence, all of which rendered the
proceedings fundamentally unfair.  The evidence withheld and the false
evidence used include the following:

  (1)     statements by an eyewitness indicating that another
  individual, not Mr. Jamal, was the shooter, that the actual shooter
  fled the scene, and that a critical prosecution eyewitness was
  actually not present at the scene;

  (2)     evidence of the failure of a prosecution eyewitness to
  identify Mr. Jamal in a photo array;

  (3)     the favorable results of a polygraph examination administered
  to an eyewitness called by the defense which corroborated the claim
  that the actual shooter fled the scene;

  (4) extensive police files concerning Mr. Jamal's political
  activities and affiliations which expose law enforcement's
  deep-seated bias against him and show that Mr. Jamal engaged in no
  criminal conduct during the years he was closely surveilled;

  (5)     evidence of intimidation, special deals and favors, and
  coercion which was applied to numerous witnesses, causing one
  eyewitness to flee the jurisdiction, causing Cynthia White to give
  false testimony, causing two eyewitnesses to retract their claim that
  they saw the shooter flee, and causing a police officer witness to
  take an unauthorized vacation in order to prevent his availability at
  trial; and

  (6)     evidence of incompetency in the Medical Exarniner's autopsy
  report.

II. The court deprived Mr. Jamal of his fundamental right to present a
defense in the following ways:

  (1)     Mr. Jamal was effectively barred from presenting crucial
  evidence that he had not made any inculpatory statements.
  Consequently, the prosecution's claim that Mr. Jamal had confessed to
  the shooting of Officer Faulkner -- a confession that on its own
  terms is suspect -- remained unrebutted.

  (2)     Mr. Jamal was barred from examining Veronica Jones and
  showing that prosecution witness Cynthia White -- perhaps the most
  critical eyewitness for the prosecution -- was coaxed and coerced to
  testify.

  (3)     Mr. Jamal was prevented from showing that another prosecution
  witness was susceptible to police pressure to change his account of
  events because he was on probation and because of prior drunk driving
  convictions.

  (4)     Because of his indigence and the court's unwillingness to
  authorize funding for investigation and expert witnesses, Mr. Jamal
  was unable to present expert testimony which would have established
  that the prosecution's theories were false.

The cumulative effect of the court's actions was to undermine the
adversarial process to such an egregious degree that the resulting
conviction was stripped of any modicum of reliability.

III. The court impermissibly held two in camera conferences outside Mr.
Jamal's presence, at a time when Mr. Jamal's pro se status was still
intact, wherein Mr. Jamal's pro se status was discussed, an
African-American juror selected by Mr. Jamal was removed, a question of
juror taint was explored, and the admissibility of certain police
officer testimony was considered.

IV. The conflicts between Mr. Jamal and his court-appointed attorney
were so pervasive, divisive, and intense that his right to effective
assistance of counsel must be presumed to have been violated; and
further, that these conflicts in fact led to a constitutionally
inadequate defense.

V.  The court prematurely and unjustifiably stripped Mr. Jamal of his
right to proceed as his own attorney, and instead imposed upon him a
constitutionally ineffective attorney.

VI.  The court unjustifiably banished Mr. Jamal on numerous occasions
from the trial proceedings, thereby violating his right to self
representation, his right to be present at his own trial, his right to
assist in his ow-n defense, and his right to confront the prosecution's
witnesses.

VII. The prosecutor's guilt-phase closing argument exceeded the bounds
of propriety and violated Mr. Jamal's right to due process.

VIII.  The court impermissibly responded to a juror's inquiry, which
ultimately led to that juror's removal, without notifying the defense
of that inquiry.

IX.  New evidence establishes that intentional racial discrimination
infected the selection of the jury-

X.  The jury pool from which the jur-y was selected was not a product
of a random cross-section of the community.

XI.  Certain jurors engaged in discussions of the evidence which were
tantamount to deliberations before the conclusion of the case.

Sentencing Errors
-----------------

XII.  The Pennsylvania death penalty is unconstitutional because it is
applied disparately, unequally, arbitrarily, and freakishly.

XIII.  The sentencing verdict form created a substantial probability
that jurors believed that una- nimity was required to find a mitigating
circumstance.

XIV.  The prosecutor's summation in the sentencing phase diminished the
jury's responsibility in determining whether death was an appropriate
sentence, burdened defendant's right to silence, and exploited
defendant's difficulties with the court and his own attorney over his
pro se status.

XV.  Mr. Jamal received the death sentence as a direct result of
defense counsel's wholesale failure to prepare for the penalty phase,
and his failure to present evidence in mitigation during that phase of
the proceedings.

XVI.  The prosecutor's use of and argument from evidence of Mr. Jamal's
irrelevant political past and abstract ideas violated Mr. Jamal's
constitutional rights.

XVII.  The jury was not advised that a sentence of life carried with it
no possibility of parole, violating Mr. Jamal's Eighth and Fourteenth
Amendment rights.

XVIII.  The ineffective assistance of Mr. Jamal's appellate counsel
prevented appellate review of meritorious issues based on the record.

XIX.  The cumulative impact of the above-errors deprived Mr. Jamal of
due process.

79.     Mr. Jamal raised the following issues on direct appeal:

  i.    the exclusion of jurors by race;
  ii.   the trial court's refusal to excuse a manifestly biased juror
        for cause;
  iii.  the trial court's abuse of discretion in assuming control over
        the voir dire;
  iv.   the inadequacy of funds to mount a minimally effective defense;
  v.    the impermissible cross-examination of a defense character
        witness;
  vi.   the prosecutor's reference in closing argument at both the
        guilt and penalty phases regarding Mr. Jamal's right to appeal;
  vii.  the prosecutor's penalty phase cross-examination of Mr. Jamal
        regarding his Black Panther affiliation and statements
        attributed to him in a newspaper publication;
  viii. the imposition of the death penalty as disproportionate to the
        crime.

80.     The issues raised herein m grounds for collateral relief are
all of constitutional dimensions and would justify relief under the
applicable federal habeas corpus statutes.  The issues in part involve
exculpatory evidence unavailable at trial that has subsequently become
available and that would have affected the outcome of the trial if
introduced.  The errors at trial raised as grounds for collateral
relief in this Petition so undermine the truth-determination process
and the fundamental integrity of the adversarial process, that no
reliable adjudication of guilt or innocence or reliable sentencing
determination could have taken place.

81.     With the exception of issues enumerated above as items IX and
XVI, the issues raised herein as grounds for collateral relief were not
presented for direct appellate review, but are raised here for the
first time.  Mr. Jamal did not knowingly and willfully forego
presentation of these issues on direct appeal.  The failure to raise
these issues on direct appeal was the result of per se ineffective
assistance of appellate counsel inasmuch as appellate counsel did not
read the record in this case. (Hawkins Aff., Exh. 1 1)

82.     The allegations of error presented herein have not been waived.
To the extent any allegation of error is deemed waived, any such waiver
has resulted in the conviction and/or affirmance of sentence of an
innocent individual; and, further, any such waiver does not constitute
a state procedural default barring federal habeas corpus relief.

[Paras 83-164 of this Petition are not included.]

WHEREFORE, petitioner Jamal requests this Court to:

  1. Vacate the conviction and sentence of death;
  2. Order a new trial;
  3. Stay Mr. Jamal's execution;
  4. Permit further investigation into the circumstances of Mr. Jamal's
     conviction, and if necessary, to permit the filing of an amended
     petition;
  5. Grant the discovery motion filed herewith;
  6. Grant a protective order to prevent the Commonwealth from
     harassing, inducing, intimidating or coercing potential witnesses,
     experts or investigators in this matter, or otherwise
     communicating with such witnesses about this case, without prior
     notice to and the presence of Mr. Jamal's counsel.
  7. Direct the Commonwealth to file the complete record of the prior
     proceedings, including any portions not presently transcribed;
  8. In the alternative, direct that a hearing be held in order that
     all factual issues raised herein can be fully and fairly
     litigated.


Respectfully submitted,

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

DAVID RUDOVSKY
(local counsel)
Bar No. 15168
Kairys, Rudovsky, Kalman & Epstein
924 Cherry Street
Suite 500
Philadelphia, PA 19107
(215) 925-4400

DANIEL R. WILLIAMS
Moore & Williams, LLP
740 Broadway Suite 500
New York, New York 10003
(212) 353-9587

JONATHAN B. PIPER
Sonnenschein, Nath & Rosenthal
800 Sears Tower
Chicago, IL 60606
(312) 876-8000

STEPHEN W HAWKINS
National Conference of Black Lawyers
1875 Connecticut Avenue, N.W
Suite 400
Washington, D.C. 20009
(202) 234-9735

RACHEL H. WOLKENSTEIN
67 Wall Street, Suite 2411
New York, New York 10005
(212) 406-4252

Attorneys for Petitioner Mumia Abu-Jamal



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