(en) mumia update

papadop@peak.org
20 Apr 1997 08:35:12


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From: MichaelP <papadop@peak.org>

In case folks have forgotten, MUMIA ABU-JAMAL is still on death row in Pennsylvania, is still proceeding in his attempts for a new trial on his conviction of killing a policeman in the City of Brotherly Love, and is still maintaining his innocence. The matter is currently before the Pennsylvania Supreme Court; I'm posting an unsnipped text of a Brief which attempts to have the justices permit a reply to the State's argument.

The text speaks for itself. Even though this is a long document I've included the footnotes as being especially important. We are reminded that after he was found guilty by the jury ( the claim is that the prosecution's case was wholly circumstantial, that the prosecution witheld exculpatory evidence from the defense, and was motivated by Mumia's links with MOVE/Black Panthers) Mumia's politics were examined

[Q. Do you recall saying "All power to the People"?]

in the penalty phase of the trial. As stated in one of the footnotes < The impact of the 1970 Black Panther Party slogans in securing the death penalty cannot be underestimated. This is a case in which the jury returned after a period of deliberation on the issue of guilt, and asked for reinstruction on the definitions of manslaughter, third degree murder, and first degree murder.>

MichaelP =======================================================

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT _________________________________________ COMMONWEALTH OF PENNSYLVANIA, Appellee, No. 119 Cap. App. Dkt.

v. MUMIA ABU-JAMAL, a/k/a Wesley Cook, Appellant. _________________________________________ APPELLANT MUMIA ABU-JAMAL'S APPLICATION FOR LEAVE TO FILE A SUR-REPLY TO THE COMMONWEALTH'S SUR-RESPONSE Appellant Mumia Abu-Jamal ("Jamal"), by his attorneys, respectfully petitions this Court for leave to file a sur-reply brief responding to new matters raised in the Commonwealth's 36-page "Response to Appellant's Reply Brief." Jamal's sur-reply brief would address new matters and misrepresentations of the record in the Commonwealth's Sur-Response, including the Commonwealth's new claim that evidence of Jamal's teenage political views in 1970 were admissible in the penalty phase to show his "motive" to shoot a police officer in 1981, and the Commonwealth's plea that, to defeat federal review and expedite the pace of executions in Pennsylvania, this Court should overturn its practice of relaxing the waiver rule in capital cases. In further support of this application, Jamal states as follows: 1. This is an appeal in a capital case from an order denying Jamal's petition for post-conviction relief. 2. Jamal filed his reply brief on August 5, 1996. On August 13, 1996, the Commonwealth filed a petition for leave to respond to Jamal's reply brief. The Commonwealth asserted that its Sur-Response would be "limited," and "would be restricted to the new claims" allegedly raised in Jamal's reply brief. [1] 3. On February 27, 1996, this Court granted the Commonwealth's application and permitted the Commonwealth to file a Sur-Response. 4. On March 25, the Commonwealth served its 36-page Sur-Response, which bears little resemblance to what the Commonwealth had indicated it would file. Despite its volume, the Sur-Response largely does not present new arguments, but merely rehashes the same old distortions, falsifications, and ad hominem attacks on Jamal and his counsel contained in the Commonwealth's answering brief. Like the Commonwealth's answering brief, the Sur-Response simply ignores the substance of Jamal's claims that he is an innocent man whose conviction was secured through coercion of witnesses, fabrication of a confession, suppression of evidence, and other gross police and prosecutorial misconduct, compounded by the ineffective assistance of Jamal's trial counsel and the rulings of a hostile court. 5. However, as outlined below, on a few critical issues the Commonwealth has been compelled to radically alter the substance of its arguments and make new arguments. Jamal requests leave to file a short brief to address the Commonwealth's new arguments. 6. Jamal should be permitted to answer the Commonwealth's absurd argument that Jamal's teenage political views were relevant at the death penalty hearing to show "motive" for shooting a police officer. In the death penalty phase, the Commonwealth was permitted to examine Jamal on a variety of political slogans he had espoused in a 1970 newspaper interview as a teenage member of the Black Panther Party. (See Brief for Appellant, pp. 113-14.) This evidence of Jamal's teenage political beliefs (indisputably protected by the First Amendment) was central to the prosecution's argument that Jamal deserved the death penalty. [2] Although previously the Commonwealth had argued that this evidence was admissible to refute Jamal's character evidence, the Commonwealth now shifts its position and claims that the slogans "went directly to defendant's motive for the murder." (Com. Sur-Response, p. 30; original emphasis.) 7. The PCRA court ruled that the admission of Jamal's teenage political views was not error because they were "relevant to his claim of having a peaceful character." (Sept. 15, 1995 Order COL P 213.) In its answering brief, the Commonwealth similarly argued that the prior statements were "relevant to his claim of having a peaceful character." (Brief for Appellee, p. 183.) In his reply brief, Jamal pointed out that this very argument was rejected in Delaware v. Dawson, 503 U.S. 159, 166-68 (1992) (abstract views cannot be used to establish character). (Reply Brief for Appellant, p. 52.) Now, the Commonwealth has dramatically changed that position. Recognizing that Dawson blocks the "bad character" argument, the Commonwealth now asserts that Jamal's 1970 political views was somehow relevant because they established the "motive" for the shooting of a police officer. 8. Jamal should be permitted to respond to this new Commonwealth argument. First, there is no basis in the record to attribute any "motive" to Jamal's alleged teenage political views. The views in question include the following: "Political power grows out of the barrel of a gun." (Tr. 7/3/82: 22.) "All power to the people." (Id.: 23.) "The Panther Party is an uncompromising party, it faces reality." (Id.) [3] The only one of these views which the Commonwealth even attempts to justify is the first slogan. The Commonwealth does not even specify how this slogan -- a Mao-tse-Tung quotation widely used by the Black Panther Party -- allegedly provides a "motive" for the shooting of a police officer twelve years later. Presumably, the Commonwealth suggests that for twelve years Jamal advocated random attacks on police officers and himself harbored a desire to shoot a police officer. That interpretation is absurd on the face of the record. [4] The real meaning of the quotation was precisely the opposite -- to characterize the government's political repression of the Black Panther Party, i.e., the government's political power grew out of its armed repression of blacks and dissidents: "Protest killings by police. . . . `Since the murders [of Panther members by police], 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. . . . 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." (Tr. 7/3/82: 25-29.) [5] 9. At the penalty phase, Jamal tried to clarify that the quotation expressed a critique of governmental and military repression, drawing a historical analogy based on the conquest of the New World: That was a quotation from Mao-tse-Tung of the People 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. . . . I believe that America has proved that quote to be true. (Tr. 7/3/82: 22-23.) 10. As the amicus curiae explain in their supporting brief, "there is no suggestion in the article [or in the record] 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." (Brief of Amicus Curiae American Civil Liberties Union, National Association for the Advancement of Colored People, and National Conference of Black Lawyers, p. 28.) [6] 11. The Commonwealth's present distortion of the 1970 interview excerpts demonstrates the clear prejudice which flowed from the admission of those quotations at the penalty phase. The 1970 Black Panther slogans do not in any way provide a motive for the shooting of a police officer. Yet the Commonwealth now concedes that these slogans and the Black Panther link were used precisely to present that false impression to the predominantly white jury. Indeed, the prosecution strove to create such a misimpression at trial by jumbling the quotes together in the penalty phase summation: 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. (Tr. 7/3/82: 68.) 12. While stretching in vain to justify the use of the Mao-tse-tung quote, the Commonwealth advances no justification at all for the introduction of the other slogans -- "All power to the people" and "The Black Panther Party is an uncompromising party." The Commonwealth instead tries to evade responsibility for introducing these quotes and the Black Panther link, claiming that these "broader political beliefs were not mentioned by the prosecution, but rather were introduced by defendant himself." (Sur-Response, p. 30.) The record shows that this is just another Commonwealth falsehood, for the quoted slogans, as well as the Black Panther Party, were first raised by the prosecution: Q. Mr. Jamal, let me ask you if you recall saying something sometime ago and perhaps it might ring a bell as to whether or not your 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 they 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? * * * Q. Do you recall saying: "All power to the People"? Do you recall that? * * * Q. Do you recall saying that: "The Panther Party is an uncompromising party, it faces reality"? (Tr. 7/3/82: 21-23; emphasis added.) [7] It was only then, after the prosecutor had belabored these slogans and the Black Panther connection, that Jamal asked to read the entire article into the record to establish the true context of the quotations. (Id.: 23-24.) 13. Jamal should be permitted to reply to the Commonwealth's new plea for the Court to overturn its practice of relaxing the waiver doctrine in capital cases. Complaining that "the death penalty in Pennsylvania has become little more than a myth," the Commonwealth uses its Sur-Response as the vehicle to ask this Court to overrule its relaxation of the waiver rule in capital cases. (Sur-response, p. 33 and n. 22.) The Commonwealth further asks the Court to tailor its ruling to defeat federal review, a blatant appeal to anti-federal bias. (Id., pp. 33-34.) In the Philadelphia District Attorney's jurisprudence, impatience to speed up the rate of executions far outweighs such time-honored principles as stare decisis, federalism, and the need for heightened scrutiny in capital cases. 14. As a matter of policy, the need for heightened scrutiny is particularly acute in capital cases arising in Philadelphia County. Convictions based on perjury and manufactured evidence, including capital convictions, have been the subject of nearly daily news in Philadelphia, particularly with the revelations of police misconduct in the 39th District scandal, an episode now connected to the present case. (See Appellant's Application for Relief in the Form of a Remand to Present Additional Evidence and Take Discovery Regarding Police and Prosecution Misconduct, and attached Affirmation of Pamela Jenkins.) Recently, in the Ryder case, involving a third post-conviction petition arising from a 1974 murder conviction, the PCRA court found that the Commonwealth had withheld 82 witness statements, including 8 exculpatory statements. Com. v. Ryder, Oct. Term 1973, No. 0017-0020 (Feb. 12, 1996). The fact that the Philadelphia District Attorney withheld these statements for over 20 years, until a court ordered their disclosure following a third post-conviction petition, is ample proof that heightened scrutiny and discovery is needed in Philadelphia capital cases. 15. Misconduct of the Philadelphia District Attorney's Office most recently came to the fore with the revelation of a mid-1980's videotape in which that office trained prosecutors to strike potential black jurors from the jury pool. See "Former Philadelphia Prosecutor Accused of Racial Bias," New York Times p. A14 (April 3, 1997). This new revelation has bearing here, for Jamal claims that the prosecution used just such racially-based jury strikes at his trial, violating the Batson doctrine. At the PCRA hearing, Jamal presented additional evidence to supplement the trial record, proving that the prosecution used its peremptory challenges to strike at least 10 of 14 eligible black jurors. (See Brief for Appellant, pp. 96-98.) In support of his Batson claim, Jamal has alleged that "the Philadelphia district attorneys office has engaged in a pattern of striking black jurors." (Brief for Appellee, p. 98.) Jamal cited a federal case noting such a pattern. Diggs v. Vaughn, 1991 U. S. Dist. LEXIS 3945 (E.D.Pa. 1991) (citing "testimony by attorneys familiar with practices in the Philadelphia courts during the relevant period, to the effect that assistant district attorneys routinely sought to exclude blacks from criminal juries"). The Commonwealth misleadingly responded that "'the relevant period' in Diggs v. Vaughn was 1977, not 1982." (Brief for Appellee, p. 160 n.82.) Yet now the Commonwealth concedes that the practice of racial-based challenges was a prosecution policy through the mid-1980's. This is yet another instance of the prosecutorial prevarication which warrants strict scrutiny in Philadelphia capital cases, and shows the need for broad discovery in PCRA cases. [8] 16. Jamal should be allowed to reply to the many other misrepresentations and distortions contained in the Commonwealth's Sur-Response. There are numerous other respects in which the Commonwealth Sur-Response falsifies or distorts the record, or misstates or ignores Jamal' true claims. With respect to Jamal's evidence of rampant police and prosecutorial misconduct, and his claim of ineffective assistance in the guilt phase, the Commonwealth's Sur-Response generally just repeats the same old tired falsehoods contained in its answering brief. [9] With respect to Jamal's claim of ineffective assistance of counsel in the penalty phase, the Commonwealth makes an outlandish claim when it asserts that Jamal's character witnesses at the PCRA hearing -- including a state representative and two professional journalists -- were incredible. The Commonwealth asserts that "[t]he PCRA testimony describing defendant as a Ghandi-like [sic] man of peace, if presented at trial, would have been rejected by the jury out of hand as a patent deception." (Id., p. 28.) [10] This is contrary to the opinion of the PCRA court, which expressly found "credible" the late State Rep. Richardson's description of Jamal as "uniquely dedicated to the cause of peace." However, the PCRA court could not "fathom how his testimony would have benefited petitioner." (Sept. 15, 1995 Order FOF 94-95.) [11] In another outright falsification, the Commonwealth asserts that "[t]he only specific defense claim of ineffective assistance in the penalty phase . . . is that Jackson failed to present additional character evidence." (Sur-Response, p. 25.) Yet in his main brief, Jamal complained that Jackson failed to make the proper First Amendment objection when the prosecution presented the 1970 newspaper article, failed to object to the improper verdict form, and gave the impression Jamal could be paroled if sentenced to life in prison. (Brief for Appellant, p. 111.) 17. For all these reasons, in the interests of justice, Jamal should be permitted to file a short sur-reply brief to respond to new matters and misrepresentations in the Commonwealth's Sur-Response. Even before filing its Sur-Response, the Commonwealth had filed more pages of briefs in this appeal than Jamal. To grant the Commonwealth a Sur-Response but deny Jamal the ability to reply (even as the Court has struck Jamal's reply brief on the Veronica Jones remand and denied Jamal oral argument), would deprive Jamal of the elementary ability to be fully heard on this appeal. [12] From the initial trial (where Jamal lacked an effective advocate to counter the prosecution's misconduct) through his direct appeal (in which three members of this Court inexplicably did not participate) through a post-conviction hearing in which Jamal was forced to present his claims without any discovery on a rushed schedule with his warrant of execution pending, Jamal has been denied the most basic procedural safeguards afforded to any capital defendant. Despite the biased and restrictive rulings of the PCRA court, Jamal has presented ample proof of police and prosecutorial misconduct so egregious as to warrant dismissal of the charges. Jamal should be given the opportunity to respond to the Commonwealth's Sur-Response. CONCLUSION For all the foregoing reasons, Appellant Mumia Abu-Jamal's Application for Leave to File a Sur-Reply to The Commonwealth's Sur-Response should be granted. Respectfully submitted, LEONARD I. WEINGLASS 6 West 20th St., Suite 10A New York, New York 10010 (212) 807-8646 Footnotes: 1 Jamal objected to the Commonwealth's proposed sur-response on the grounds that the Commonwealth had already filed more pages of briefs than Jamal, that its sur-response would undoubtedly "continue its pattern of distortion and outright falsehoods," and that in any event Jamal should be granted an opportunity to reply to any new arguments contained in the sur-response. 2 The impact of the 1970 Black Panther Party slogans in securing the death penalty cannot be underestimated. This is a case in which the jury returned after a period of deliberation on the issue of guilt, and asked for reinstruction on the definitions of manslaughter, third degree murder, and first degree murder. (Tr. 7/2/82: 54.) 3 The improper cross-examination and argument extended into Jamal's running controversy with the judge: Q. What is the reason you did not stand when Judge Sabo came into the courtroom? * * * Q. Did you not continually question Judge Sabo and disagree with his rulings continually after he ordered you again and again and again? (Tr. 7/3/82: 20, 32-33.) (See Brief for Appellee, pp. 111-12; Reply Brief for Appellee, p. 55.) In its Sur-Response, the Commonwealth does not bother to explain why Jamal's conflict with the judge was relevant at the penalty phase, but vigorously argues that it was precisely that conflict which secured the death sentence. (See Sur-Response, p. 28.) 4 Moreover, it is simply absurd to suggest that a political view espoused as a teenager in 1970 goes "directly" to establish "motive" for an event that allegedly took place some twelve years later. 5 The amicus curiae explain that Cook's description of federal and police repression of the Black Panther Party is now a matter of public record. See Brief of Amicus Curiae American Civil Liberties Union, National Association for the Advancement of Colored People, and National Conference of Black Lawyers, pp. 17-19. See also "The FBI's Covert Action Program to Destroy the Black Panther Party," III Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1976), pp. 185-224. 6 Indeed, the Federal Bureau of Investigation and the Philadelphia Police Department maintained constant surveillance of Jamal during those years and did not find one instance of criminal activity. (See Brief for Appellant, p. 68.) 7 Because the Commonwealth has so systematically distorted the content of the 1970 interview and misrepresented that it was Jamal who introduced these slogans, Jamal strongly encourages the Court to review the actual transcript of his cross-examination. 8 Jamal is investigating these new revelations and seeks discovery of the 1986 videotape as well as other information concerning training of Philadelphia prosecutors in the use of peremptory challenges to remove black jurors. 9 For example, the Commonwealth again categorically denies that the cab driver Robert Chobert initially told police that the shooter ran away. (Sur-Response, p. 18.) Yet at a pre-trial hearing a police inspector testified that the "white cab driver" told him immediately after the shooting that "the man that shot the policeman ran away." (Tr. 6/1/82: 70.) 10 The Commonwealth's premise is that the jury should have determined that Jamal deserved death because of his running controversy with the Court, which had deprived Jamal of his ability to represent himself. That argument -- which tracks the prosecutor's penalty phase summation -- is spurious, and itself violates Jamal's Sixth Amendment rights, as Jamal argues in this appeal. (See Brief for Appellant, pp. 111-12.) 11 Similarly, the PCRA court wrote: "Mr. Collins described petitioner as an extraordinarily gifted radio journalist, comparing him to Charles Osgood. This court cannot disagree, but Mr. Jamal's learned success and skill as a radio journalist cannot mitigate the fact that he shot and killed a police officer from point-blank range and without provocation." (Sept. 15, 1995 Order FOF P 100; emphasis added.) In short, no character testimony, in the PCRA court's mind, could mitigate against the death sentence in this case. But that decision, of course, should be the jury's. 12 Given the circumstances which have unfolded since Jamal initially applied for oral argument, including the Veronica Jones remand and the present application with respect to Pamela Jenkins, as well as the new federal findings concerning Commonwealth interception of Jamal's legal mail and the new revelations on the Batson issue, the Court may want to reconsider its decision denying oral argument. _________________________________________________________________

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