January 20

TEXT OF
LEGAL BRIEF
BY MUMIA'S LAWYERS

Mumia's defense team filed a 100 page document
in federal court requesting the judge to "review the reasonableness of the State Court's Finding if Fact" in Mumia's 1982 trial and PCRA hearings. The 1996 EDPA
federal law "presumes correctness" on the part of the state courts. Mumia's defense team argues that there was no meaningful fact-finding under Sabo, and that the whole proceedings
should be disregarded.

Petitioner's Motion and Memorandum to Review
for Reasonableness the State Court's Findings of Fact
Pursuant to 28 U.S.C. §2254(d)(2) and the Fifth, Eighth and Fourteenth Amendments to the U.S.
Constitution

Petitioner Mumia Abu-Jamal (Jamal) respectfully moves this Court to review for reasonableness the state court findings of fact, issued in connection with Petitioner's application for relief under Pennsylvania's Post-Conviction Relief Act (PCRA), pursuant to 28 U.S.C. §2254(d)(2), and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. This Motion presents two overarching grounds for setting aside the factfinding by Judge Albert F. Sabo, the presiding judge over the original trial and the PCRA proceedings.

The first basis for reviewing the state court factfinding rests with a particularized "reasonableness" analysis of the record pursuant to 28 U.S.C. §2254(d)(2). As shown below, Judge Sabo's findings of fact, in their particulars, are not reasonable in light of the record as a whole. The second basis is more global in its reach and sprouts from elementary due process considerations. Specifically, Jamal contends that the state court factfinding deserves no deference because Judge Sabo harbored deep-rooted bias and hostility toward Jamal in particular, and toward criminal defendants generally. This bias and hostility led to PCRA proceedings that were an exercise in futility which irremediably tainted the state court's factfinding.

Introduction

The PCRA proceedings were nothing more than a futile prelude to federal habeas litigation, and Judge Sabo's actions and findings were calculated to immunize Jamal's conviction and sentence, so far as possible, from vigorous and meaningful federal habeas review. Judge Sabo's PCRA proceedings culminated in his virtual verbatim adoption of the Commonwealth's flawed proposed findings of fact. A detailed analysis of Judge Sabo's findings of fact, to which the Pennsylvania Supreme Court deferred without engaging in its own factfinding, constitutes Part I of this Motion and Memorandum; this Part articulates the reasons why those findings are unreasonable in light of the record as a whole.

Independent of the subsection (d)(2) "reasonableness" analysis of Part I is the issue of Judge Sabo's palpable bias and unfitness to preside over the PCRA proceedings, as set forth in Part II. The due process analysis set forth in Part II, rooted in the Fifth, Eighth, and Fourteenth Amendments, arises from the proposition that this Court should not be indifferent to the realities faced by the Petitioner in the state court.

Meaningful habeas review depends upon the integrity of the state court system itself. Thus, under subsection (d)(1) of 28 U.S.C. §2254, state court conclusions of law that run "contrary to" clearly established Supreme Court precedent warrants federal action, as the state court system is duty-bound to adhere to the United States Constitution. (See Petitioner's Mem. Law, dated 12/6/99) Under subsection (d)(2), federal courts must independently review, pursuant to its plenary authority under Article III, the state court record to determine whether the state court's factfinding is reasonable. See Part I, infra. These two provisions, in short, exist within a constitutional constellation which requires federal habeas petitions to be treated as civil actions properly invoking the full Article III powers of the federal courts, while simultaneously preserving that delicate federalist balance which acknowledges the State court's role as independent guarantor of rights under the United States Constitution. [1]

But where, as here, a State court abdicates its role as independent and neutral guarantor of rights under the United States Constitution by virtue of its failure to accord a defendant a full and fair hearing, the sensitivity over the federalist balance gives way to the plenary authority of the federal court to ensure that the integrity of the United States Constitution is not besmirched by an unfair or inadequate state process. See Townsend v. Sain, 372 U.S. 293, 312-13 (1963). A federal habeas court must independently examine the record to determine, as a threshold matter, whether the state-court trier of fact has accorded a petitioner a "full and fair hearing" and thereupon "reliably found the relevant facts." Id. (emphasis added) In short, federal review in a habeas context comprehends a sensitivity to procedural rights and substantive reliability in the fact-finding process. See generally Ford v. Wainwright, 477 U.S. 399, 409-17 (1986); Depree v. Thomas, 946 F.2d 784, 788-89 n.6 (11th Cir. 1991); Lahay v. Armontrout, 923 F.2d 578, 578-79 (8th Cir. 1991); Manocchio v. Moran, 919 F.2d 770, 771 n.1 (1st Cir. 1990), cert. denied, 500 U.S. 910 (1991); McAffee v. Procunier, 761 F.2d 1124, 1128 (5th Cir.), cert. denied, 474 U.S. 907 (1985).

Argument

I. REVIEW OF THE FINDINGS OF FACT FOR REASONABLENESS IN LIGHT OF THE RECORD AS A WHOLE PURSUANT TO 28 U.S.C. §2254(d)(2)

This Part of the Memorandum sets forth the bases for adjudicating the particular state court factfindings as unreasonable pursuant to 28 U.S.C. §2254(d)(2). Subsection (d)(2) provides that habeas relief cannot be granted with respect to any state-court adjudicated claim unless the adjudication of the claim

resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (emphasis added) [2]

The discussion below establishes that Judge Sabo's rejection of various PCRA claims is "based on an unreasonable determination of the facts" within the meaning of subsection (d)(2). [3] His tendentious marshaling of the record ushers forth a distorted interpretation of testimony, an unreasonable discounting of favorable evidence, and even a wholesale disregard of the most probative aspects of the record - all reflecting Judge Sabo's undisguised predisposition to reject Jamal's PCRA Petition at the moment it was filed. In those instances where favorable testimony and other evidence are unrebutted, Judge Sabo typically couches his factual findings in credibility assessments, fully aware that conclusory findings that a witness is not credible enhances the chances that a claim would be regarded as immune from meaningful habeas review by an independent federal judge. [4]

Nonetheless, as shown below, Judge Sabo's factual findings (even those cloaked within the mantle of first-hand credibility determinations) cannot withstand the scrutiny contemplated by subsection (d)(2). Most notably, one sees the classic reverse process of starting the analysis of the record with the outcome and specific factual conclusions in mind, and then extracting those nuggets of testimony which might, in some fashion, support that preordained result. In short, the particular offense to due process described in Part II of this Memorandum finds full expression in Judge Sabo's factfinding universe. It comes as no surprise, therefore, that the findings of fact at issue here, taken together and singularly, are unreasonable in light of the record as a whole, and thus must be set aside pursuant to §2254(d)(2). [5]

A. The Record Regarding The Eyewitnesses (Claims 1, 2, and 10) [6]

Claims 1 and 2 of the Petition allege that the Commonwealth deprived Jamal of fundamental due process by manipulating witnesses, through coercion and inducements, which prevented him from presenting the full panoply of evidence countering the prosecution's scenario of the shooting while simultaneously supporting the defense theory that the true shooter fled the scene of the crime. Claim 10 of the Petition alleges that the trial court unreasonably blocked relevant lines of inquiry bearing upon eyewitness bias and motive. Judge Sabo's factfinding with respect to Claims 1 and 2 (no factfindings issued for Claim 10) is the starkest illustration of how favorable facts are glossed over through conclusory credibility findings, thereby obviating the discomfiting task of reckoning with the constitutional implications arising from the evidence (much of which is unrebutted). But, as demonstrated below, those credibility findings should be seen for what they truly are: a thinly disguised effort to undercut federal habeas review of evidence which serves to prove that a total miscarriage of justice occurred with the jury's 1982 verdict of guilt.

1. The findings regarding the prosecution eyewitnesses (White & Chobert)

The prosecution contends, and Judge Sabo concluded, that three eyewitnesses saw Jamal shoot P.O. Faulkner in the back, and then "ruthlessly shoot [him] in the face as he lay helpless." (Answer to PCRA Petition at 1)(See FF 16) [7] From the prosecution's perspective, the record bespeaks an "open-and-shut" case. The evidence presented in the PCRA proceedings, however, shows that a highly impeachable version of events advocated by the prosecution at the 1982 trial was transformed into this phantom "open-and-shut" case through the manipulation of key eyewitnesses. The overarching fact, which Judge Sabo submerges beneath the surface of his factfindings, is that five individuals - none knowing the others and all indisputably in the vicinity of the crime scene when police quickly arrived after the shooting erupted - promptly told crime scene investigators and homicide detectives that a person (or, in one instance, persons) fled the scene immediately after shooting erupted. [8]

The direction and location of that flight, as described by each of the eyewitnesses, were uniformly consistent. The person fleeing the scene was heading in the direction of a nearby alleyway, a mere thirty steps or so from the fallen officer. Any analysis of the record that ignores this evidence can only be characterized as an unreasonable analysis under subsection (d)(2). [9]

(a) The testimony of Cynthia White - the foundation to the prosecution's theory of what happened

The key prosecution eyewitness, from the perspective of the prosecution itself, was prostitute Cynthia White. (See Answer to PCRA Petition at 5) She was the only witness who claimed to see Jamal holding a gun, and it was her exceedingly detailed trial account which served as the pivotal evidentiary basis for the prosecution's theory of what happened at the scene of the crime. (6/22/82 Tr. 5.102, 5.515-16) Judge Sabo adopts in his factfinding the prosecution's theory of what occurred, including the discredited theory that P.O. Faulkner shot Jamal as he (Faulkner) was falling to the ground and that only two other individuals were in a position to shoot the officer (Jamal and his brother, Billy Cook). (FF 15)(6/26/82 Tr. 83) By so doing, Judge Sabo necessarily endorses the credibility and reliability of witness White.

White had 38 prior arrests for prostitution in Philadelphia and 3 open cases awaiting trial in Philadelphia when she took the stand. (6/21/82 Tr. 4.80-81) She also had an extensive history of providing false information to law enforcement (Id. at 4.116 et seq), and frequently revised her account over time to conform to the prosecution's theory (even to the point of retreating from her initial description of the shooter as shorter than 5'8" (6/22/82 Tr. 5.215) - Jamal is over six feet). (Id. at 4.156 et seq.) Each of her revised accounts came about in the wake of an arrest, a fact that White admitted was not coincidental. (Id. at 4.169-172) The record reveals that she understood that law enforcement regarded her as a valuable witness, and that she was savvy enough to know how to parlay that importance to secure benefits for herself. (Id.)

As Claim 1 sets forth, unknown to the defense at the time trial began, White had been given a special undisclosed favor by police in exchange for her testimony: she was to be given police protection while she worked as a prostitute in exchange for her testimony. [10] (8/1/95 Tr. 175-77; 7/28/95 Tr. 54-55) At the PCRA hearing, investigator Robert Greer, with over twenty years law enforcement experience, testified that when he attempted to interview White before the 1982 trial he was unable to do so because two plainclothes police officers in a red car were always nearby. (8/1/95 Tr. 175-76, 182, 201-02) [11] Judge Sabo gave short shrift to Greer's testimony, stating that "[t]his Court cannot find that two occupants in a little red car parked on a street corner in the city of Philadelphia are police officers protecting a prostitute who had been previously and subsequently arrested at least 38 times." (FF 14, n. 4) Judge Sabo further opined that the proximity of undercover officers observing White "would discourage any potential customers." (Id.) [12]

Aside from the fact that Judge Sabo simply discounted the assessment of a seasoned investigator, he discards information in the trial record which bolsters Greer's assessment. Specifically, the trial record shows that in January 1982, police told another prostitute, Veronica Jones, that she would be allowed to work the street with impunity, like Cynthia White, if she would incriminate Jamal. (6/29/82 Tr. 135-36) Judge Sabo blocked this crucial line of inquiry in 1982. (See I.B.2.(a), infra)

By blocking the defense from eliciting details from Jones about this law enforcement manipulation of her and White, Judge Sabo created a gap in the trial record which, had it been developed, would have substantiated the testimony of investigator Greer (and would have independently formed the basis for Jamal's Brady claim). Instead, this evidentiary gap in the trial record, created by an erroneous trial ruling in 1982, creates a vacuum for Judge Sabo's 1995 finding that Greer is too unreliable to credit. This is but the first of many instances where Judge Sabo seizes upon a gap in the evidentiary record, which he created through his own evidentiary rulings, to justify a particular factual finding.

Furthermore, Judge Sabo stands behind White's trial testimony in the face of unrebutted expert evidence that establishes that her account was a complete fabrication. As discussed in more detail later (see I.E.2., infra), a pathologist at the PCRA hearing testified that the bullet which traversed Jamal's body traveled in a downward direction (an uncontroverted fact), thus refuting the prosecution's theory, rooted in White's trial account, that P.O. Faulkner shot Jamal as he was falling to the pavement. This physical evidence concerning the bullet's trajectory establishes that the prosecution's theory of what happened is wrong and that its own principal eyewitness likely did not even see the events she purports to describe. [13]

Yet another item of suppressed evidence raises troubling questions about White's veracity. As discussed more fully below (I.A.2.e., infra), it is undisputed that the prosecution suppressed evidence indicating that P.O. Faulkner was given a duplicate driver's license during the course of the traffic stop. While the significance of this suppression goes well beyond White's credibility as a witness (as the later discussion reveals), its disclosure at trial could have enhanced the deconstruction of White's highly-detailed account of the interaction between P.O. Faulkner and Billy Cook which took place before Jamal's arrival on the scene. (See, e.g., 6/22/82 Tr. 5.96 et seq.) Although White provided a seamless narrative of this interaction, purporting to leave no detail unmentioned (suggestive of being heavily coached), her account makes no mention of the transmittal of this document to P.O. Faulkner. [14] Given that the officer undoubtedly received the document during this traffic stop, White either did not actually witness the events, at least not with the keen attention suggested by her testimony, or she was coached into omitting any mention of this fact. Thus, suppression of this document prevented another line of productive cross-examination further tarnishing the prosecution's star witness.

Finally, Judge Sabo's factfinding leaves unsettled another inexplicable aspect of White's testimony. While White insisted that she could see everything that transpired during the events in question, she could not account for how others observed flight from the scene, as she denied that anyone fled. (6/22/82 Tr. 5.154-155) Nor did she claim to see P.O. Faulkner striking Billy Cook - a fact that the prosecution does not contest. [15] These facts, too, suggest that she did not, in fact, witness the events that she described at trial.

(b) The recantation by prosecution witness Robert Chobert

The second prosecution eyewitness was Robert Chobert, a cabdriver. Chobert acknowledged he only heard shots but never saw a gun. (6/19/82 Tr. 229-30, 261) On the night of the shooting, he told police the shooter was a large, heavy man (estimated to be 200 to 225 pounds), in his mid-thirties. (Id. at 234-42) He also told crime scene investigators that the shooter, wearing a light tan shirt and jeans, "ran away." (Id. at 236; PCRA Petition Exh. 15) Jamal, on the other hand, was 28 years old, slim (weighing only 170 pounds), was wearing a red and blue ski jacket, and fell wounded to the curb near the scene of the shooting, physically unable to run. [16] Chobert reaffirmed this account later that morning at the precinct, adding that the shooter ran "30 steps." (6/19/82 Tr. 236; PCRA Petition Exh. 15)

As wrong as it is brazen, Judge Sabo actually finds that Chobert's trial testimony did not meaningfully depart from his reported observations immediately after the shooting. (FF 276) The record leaves no doubt that Chobert recanted his observations of flight (which was plainly favorable to the defense) when he testified as a prosecution witness. Even Chobert admits to the discrepancy, explaining that the discrepancy between his trial testimony and his pretrial statements was the result of a mistake when he spoke to the police immediately after the shooting. (6/19/82 Tr. 237, 248)(7/31/95 Tr. 105) [17]

Judge Sabo's factfinding says nothing of the implications of Chobert's revised story, thus reflecting its perfunctory quality. Specifically, Chobert's reported observation that the shooter "ran away" makes sense in light of what Chobert did next: he exited his cab to see if he could help the fallen officer. (6/19/82 Tr. 211, 234) Had the shooter remained at the scene (as Chobert was to claim later at the trial), however, it would not make sense that Chobert would put himself in harm's way by going towards the shooter (still armed) and the fallen officer. Similarly, had the shooter remained at the scene, it would not make sense for Chobert even to raise the irrelevant issue of flight. Yet, Chobert did raise the issue of flight with the investigating officers and he did walk towards the fallen officer, unafraid of an encounter with an armed and cold-blooded cop-killer still at the scene. [18] These dual facts, uncontested by the Commonwealth, strongly enhance the reliability of Chobert's initial report to police regarding flight from the crime scene and, at the same time, highlight the irrationality of Chobert's revisionist trial account.

Judge Sabo's erroneous factual finding that Chobert's trial testimony was consistent with his pretrial statements caused him to ignore the vital need for the defense to present evidence explaining why his recantation came about. One tactic pursued at trial to illuminate why he recanted was blocked by Judge Sabo: the defense was precluded from showing that Chobert had been convicted of arson-for-hire -- for which he was on probation at the time. (6/19/82 Tr. 220-22, 225-26) Chobert's probationary status made him vulnerable to police pressure, as did his prior DWI charges. (Id. at 225-26)

New evidence at the PCRA hearing demonstrates additional reasons why Chobert changed his testimony in ways favorable to the prosecution. Chobert revealed at the PCRA hearing that he had a problem on December 9, 1981, which required favorable consideration from the police. Despite his probation, he was driving a cab with a suspended driver's license. (8/15/95 Tr. 5-6) Rather than prosecute that violation, the prosecutor, Joseph McGill, promised to "look into" how Chobert could get his license reinstated. (Id. at 5) Chobert admitted that he believed McGill was intending to assist him. (Id. at 10)

Judge Sabo downplayed the significance of this new evidence - as well as the erroneous restriction of defense counsel's trial cross-examination - because he erroneously rejected the irrefutable fact that Chobert had recanted at trial his earlier statements concerning seeing someone flee the scene. Indeed, Judge Sabo blocked PCRA counsel's attempt to have Chobert admit that his trial testimony was nothing short of a recantation of his earlier police statements. (Id. at 25-27) This is yet another instance where Judge Sabo issued findings of fact after having blocked Jamal from presenting evidence which would serve to refute those findings.

Judge Sabo also wrongly surmised that Chobert spoke to McGill about these important personal economic matters after he testified. (FF 274) Although Chobert could not recall exactly when he discussed the matter with McGill, it occurred before or during the trial, not afterward as Judge Sabo wrongly insinuates. Judge Sabo simply ignored Chobert's testimony that he never talked to McGill after the day he testified. (Id. at 4, 20, 28)

Judge Sabo's findings of fact further ignore the evidence in the record concerning how the prosecutor extracted maximum advantage from Judge Sabo's restriction of defense counsel's trial cross-examination and its suppression of the above-noted evidence. Prosecutor McGill, knowing that evidence undercutting Chobert's credibility existed, misled the jury by asking rhetorically: "What motivation would Robert Chobert have to make up a story within thirty-five to forty-five minutes later?" (7/1/82 Tr. 182-83) This tactic of taking advantage of trial rulings and unfair suppression of evidence to suggest that a witness is untainted by any partiality favoring the prosecution is especially reprehensible, and an assessment of the record which openly ignores such an incontrovertible event is manifestly unreasonable under subsection (d)(2). [19]

(c) The limited nature of the testimony from witnesses Michael Scanlan and Albert Magilton

Judge Sabo identifies prosecution witnesses Michael Scanlan and Albert Magilton as additional eyewitnesses whom the jury could have relied for its finding of guilt. (FF 17) Although none of the post-conviction claims pertain directly to Scanlan's and Magilton's testimony, it is still necessary to unmask the illegitimacy of Judge Sabo's finding in this regard.

Judge Sabo's finding regarding witness Scanlan omits critical facts from the record which reveal how weak his testimony actually was in terms of illuminating who actually shot P.O. Faulkner. In fact, in crucial respects, Scanlan proves to be a materially favorable witness for the defense, particularly in his "certain[ty]" that the shooter had an "an Afro hairstyle." (6/25/82 Tr. 8.56) Judge Sabo never mentions the incontrovertible fact that Scanlan, "certain" that the shooter had "an Afro hairstyle," refused to identify Jamal (adorning long dreadlocks) as the shooter (a refusal that continued at trial); in fact, Scanlan misidentified Jamal at the scene as the driver of the Volkswagen. (Id. at 8.46) Nor does Judge Sabo's finding take into account the uncontested fact that Scanlan admitted that he could not tell which of the black males at the scene (Jamal and his brother) was which, or who shot the officer. (Id. at 8.12, 8.36, 8.46, 8.50- 53) The key to understanding Scanlan's obvious confusion over the two black males at the scene when the police arrived (Jamal and his brother) rests with his observation (of which he is "certain") that the shooter had "an Afro hairstyle" - an observation consistent with other evidence indicating that a third person was at the scene.

Additionally, Judge Sabo never acknowledges Scanlan's forthright admission that he had been drinking that night and that he "assum[ed]" the person running across the street had brandished a gun. (Id. at 8.65) Whereas Cynthia White's testimony provided a streamlined and highly coached narrative, Scanlan's obviously reflected something closer to reality: a dark scene awash in confusion. (Id. 8.12-13, 8.33, 8.37) Whereas Judge Sabo finds as a fact that Scanlan was a genuine eyewitness who fully implicated Jamal, in actuality Scanlan was certain only of the fact that shots were fired and that the shooter had an Afro hairstyle.

Judge Sabo characterizes witness Albert Magilton as an eyewitness, yet his testimony provides even less than Scanlan's. Magilton testified that he was crossing Locust St. when he saw Jamal "walking" across Locust St. in the direction of P.O. Faulkner; he too did not see Jamal brandishing a gun, and he did not see Jamal actually reach the other side of the street. (Id. at 8.87, 8.100) Magilton's back was to the incident and he did not see who fired shots. (Id. at 8.77, 8.87, 8.100) His recollection of the gunfire differed markedly from White's account: Magilton heard three shots in rapid succession, a pause, then two more. (Id. at 8.88) In fact, when he turned immediately upon hearing gunfire, he did not see Jamal. (Id.) Magilton did not, and would not, identify Jamal as the shooter. (Id. at 8.88-89)

Thus, whereas Judge Sabo's findings of fact give the impression of a prosecution case amply supported by eyewitness testimony, the record reveals something far murkier: erratic eyewitness accounts marred by contradictions, recantations, and disjointed observations.

2. The inability of defense counsel to present evidence of flight due to law enforcement and prosecutorial interference

Claim 2 alleges that witness manipulation prevented Jamal from presenting a fully developed defense that a third person (husky and sporting an Afro hairstyle) was at the scene who shot the officer and fled. The key to understanding the evidentiary foundation to this claim rests with this uncontested fact: In December 1981, law enforcement recorded four witness interview reports which describe flight from the scene of the shooting toward a nearby alleyway (the witnesses are Chobert, Dessie Hightower, Debbie Kordansky, and Veronica Jones). A fifth eyewitness's account of flight (that of witness William Singletary), also in the direction of the nearby alleyway, was never memorialized in a police report. Judge Sabo's findings of fact never confront the disturbing reality that the jury heard from only one witness concerning flight from the scene of the crime (Hightower), when, in fact, an array of mutually bolstering evidence existed to substantiate this powerful defense theory.

(a) The recantation by Veronica Jones

A week after the shooting, Veronica Jones was interviewed by two detectives and signed a witness statement memorializing her observation of two men running from the scene. (7/31/95 Tr. 103-04; 10/1/96 Tr. 18-21) At trial, however, she too recanted this observation. (7/31/95 Tr. 106; 10/1/96 Tr. 20-21) This recantation occurred after law enforcement subjected her to a five hour interrogation and offered her a deal if she implicated Jamal in the shooting. Defense counsel knew nothing about that interrogation of Jones or the police promise until she took the stand at trial and alluded to it herself. (6/29/82 Tr. 129) She was interrupted in her disclosure, however, by Judge Sabo's inexplicable evidentiary ruling barring this testimony. (Id. at 134- 45) [20]

In 1996, at a continuation of the PCRA proceedings, Jones testified that she lied at Jamal's trial in denying that she saw two black men run away from the scene. (10/1/96 Tr. 20-21) Jones then provided a fuller account of the manipulation and coercion to which she was subjected which accounts for her trial recantation.

Judge Sabo finds Jones's 1996 testimony unworthy of belief. (Op. at 5) [21] He does so without fair regard to the compelling backdrop to her 1996 testimony which imbues it with heightened reliability. It is an irrefutable fact that Jones recanted her statement to detectives one week after the shooting concerning flight from the scene of the shooting. It is a plain matter of the record that once she broached the issue of police manipulation of prostitute witnesses such as herself and Cynthia White, Judge Sabo blocked defense counsel from eliciting such information for jury consideration. (6/29/82 Tr. 134-45) Thus, as with Chobert, Judge Sabo issued an evidentiary ruling at trial that essentially hamstrung the defense from eliciting evidence which shed light on the recantation. Absent the full trial testimony and the 1996 PCRA testimony from witness Jones, her stunning recantation at trial is a puzzling mystery. But with her 1996 PCRA testimony, coupled with the glancing (but court-precluded) reference to police manipulation in her trial testimony, the jumbled pieces to this puzzle fall into place. Judge Sabo's conclusory rejection of Jones's PCRA testimony explaining why she recanted at trial spurns the overwhelming tide of circumstances supporting her credibility.

The record establishes the following facts. On December 15, 1981, less than a week after the shooting, Philadelphia police detectives interviewed Jones at her mother's residence in Camden, New Jersey. Jones, then a prostitute, reported that she was at the corner of 12th and Locust Streets when she heard three shots. "I looked down Locust Street towards Johnny Dee's and I saw a policeman fall down. After I saw the policeman fall I saw two black guys walk across Locust Street and then they started sort of jogging. The next thing I saw was a wagon coming." (PCRA Exh. C-1, pp. 1-2; 10/1/96 Tr. 21, 33, 72, 83-84, 94-95; 10/2/96 Tr. 252, 257) [22]

Jones had no motive to invent the story of the running men. Nor did she have the means to concoct a story of flight which comported with the observations of others in terms of the location and the direction of that flight, as she had no way of knowing what others had told police. Jones had no personal bias in Jamal's favor. On the contrary, she revealed at trial that she had a personal connection to the decedent. Jones was befriended by P. O. Faulkner on two occasions -- once when he saved her from being robbed and once when he saved her from being assaulted. (6/29/82 Tr. 166-67)

At trial, Jones recanted her initial account of two men fleeing the scene, leaving defense counsel stunned. (Id. at 99, 109, 112, 147, 161, 176-77.) While the December 15, 1981 police report bears the imprint of truth, Jones' trial recantation only raises the question, why the turnabout?

Jones' PCRA testimony provides the answer. At the time she testified, she was in jail on serious felony robbery and gun charges for which she had been arrested earlier in June 1982. While in jail, Jones received a visit from two detectives. Using the threat of years in prison, and a promise to drop the charges if she helped the prosecution, the detectives pressed Jones to identify Jamal as the shooter. (10/1/96 Tr. 21-24, 46-47) The detectives said "they could help me off those charges if I helped them." (Id. at 22) The detectives repeatedly stressed that Jones faced up to ten years in prison and the loss of her children if she was convicted on the charges. They repeatedly reassured Jones that her charges would be dropped if she helped the prosecution. (Id. at 46) As Jones described the conversation:

"I was to name Mr. Jamal (indicating) as the shooter, you know. And if I was to do that, I was supposed to do something like this girl named Lucky White. They said we made a deal with her and it was going to work out for her so they could make it work out for me. All they kept expressing was don't forget five to ten years, that's a long time. They kept expressing that point. . . . The gun charges were supposed to be removed if I went with them." (Id. at 24.)

At that time, Jones was a young 21 year old woman, the mother of three small children. (Id. at 24-25) Because she did not want to be taken from her small children for a period of many years, Jones was acutely vulnerable to this police pressure. (Id.) Exploiting her vulnerability, the detectives "started saying how my kids could be taken from my mom being I was being sent up for all this time." (Id. at 46) Ultimately, after she had recanted her witness statement at Jamal's trial, Jones received a sentence of probation - a virtual slap on the wrist in view of the four serious weapons and robbery charges lodged against her. (Id. at 57)

When Jones was brought to court to testify at Jamal's trial she was not told where she was going. She thought she was being taken to a hearing on her own charges. When she walked into court she was very surprised to learn that she was appearing in the Jamal case. (10/1/96 Tr. 21, 23) As Jones explained "I was scared and I didn't know what was going on. . . . It was a big surprise." (Id.) In the courtroom, she saw a crowd of police officers, including the very two detectives who had previously visited her and pressured her in jail. (Id. at 23) Because of the police threats and the resulting fear for herself and her children, Jones testified falsely, and "told them I didn't see two men run away. . . . I denied seeing anything." (Id. at 70)

In addition to the conversation in jail, Jones had an earlier conversation with police in the winter of 1982. Jones and some other prostitutes were picked up and taken to the 6th District police station. Jones was not processed or fingerprinted. Instead, two undercover policemen questioned her. These policemen "[a]sked me if my mind had been made up what I was going to do. . . . They said you don't see Lucky (aka Cynthia White) around here, do you." (Id. at 30, 38- 39) The detectives told Jones that she could work as a prostitute without being picked up by police if she would "name Mr. Jamal as the shooter." (Id. at 30-31) At the 1982 trial, Jones alluded to the winter 1982 6th District police interview. However, the trial court struck portions of Jones' 1982 testimony about the 6th District interview and improperly precluded further inquiry into that subject. (6/29/82 Tr. 134-45) [23]

Judge Sabo's conclusory rejection of Jones's detailed PCRA testimony also overlooks the fact that Jones's commitment to the truth was put to an unexpected and severe test. Responding to Jones' testimony at the PCRA hearing, the Commonwealth resorted to the rankest kind of witness intimidation, bringing in New Jersey police officers to arrest Jones directly from the witness stand on a minor stale bad check charge which had been dormant for years. (10/1/96 Tr. 196) When the prosecutor, with the full endorsement of Judge Sabo, announced during Jones' cross-examination "that she has to be taken into custody with regard to this," Jones immediately responded: "This is not going to change my testimony." (Id.) Jones was handcuffed and whisked away straight from the witness stand to a jail cell. [24]

Judge Sabo did nothing to prevent the proceedings from devolving into a circus. When Jones' counsel asked that this spectacle cease so that Jones could appear on her own recognizance, Judge Sabo refused the request. [25]

Apart from these blatant intimidation tactics, the Commonwealth did nothing to refute the substance of Jones' description of police intimidation. The Commonwealth's sole witness on this point was William Thomas, a lead detective on the case. The Commonwealth asked Thomas just a single question, whether he had knowledge of the police intimidation of Jones at the prison. (10/2/96 Tr. 196) Having asked Thomas that one question, the Commonwealth then fought tooth and nail to prevent the defense from cross-examining him. (Id. at 197-209) Despite the Commonwealth's efforts to prevent cross-examination, it soon became clear that Thomas simply could not deny that other detectives may have visited Jones. Thomas reluctantly admitted that he had two supervisors, Lt. McGowan and Sgt. Gibbons, who may have ordered Jones to be re-interviewed. (Id. at 201-02) Thomas further acknowledged that it would have been District Attorney's office detectives who would have been responsible for bringing Jones down to testify in court. (Id. at 223) Yet the Commonwealth failed to present Sgt. Gibbons, Lt. McGowan, or anyone from the District Attorney's office to refute Jones' testimony or explain the nature of the Commonwealth's communications with her while she was incarcerated. Moreover, the Commonwealth steadfastly refused to produce any items from the District Attorney's file relating to Jones.

(b) The intimidation of Dessie Hightower

Efforts to intimidate Dessie Hightower - which were apparently unsuccessful -- also came to light in the PCRA proceedings. Of all the crime scene witnesses, only Hightower, a materially favorable defense witness, was subjected to a polygraph test. On December 9, 1981, Hightower was in the vicinity of 13th and Locust and heard the shooting. Although he did not see the shooting, Hightower heard shots and looked down Locust Street from near the intersection at 13th Street. He told the jury that he saw a black male fleeing eastward toward 12th and Locust Streets.

Hightower again testified in 1995 at the PCRA proceedings. [26] He explained that when law enforcement immediately interviewed him, he told them about the fleeing man. (8/3/95 Tr. 18-19) A week later, on December 15, 1981, law enforcement interviewed him again. This interview lasted almost six hours, from 4:00 p.m. to 9:40 p.m. (Id. at 20-21, 92) Again Hightower told police he saw a black man flee the scene. (Id. at 22) Hightower told that story consistently, never altering it -- a dramatic contrast from the shifting accounts by key prosecution eyewitnesses. (Id. at 103)

About three hours into the second interview Hightower was asked to take a polygraph test. (Id. at 23-24, 100) It is undisputed that, unlike Hightower, police did not ask Cynthia White, Robert Chobert, Albert Magilton, Michael Scanlan, or any other prosecution witness to take a polygraph test. (Id. at 171) The Commonwealth could provide no explanation as to why a young college student was subject to a polygraph and the other "pro-prosecution" witnesses - some of whom had criminal records -- were not. (Id. at 117,169)

It is undisputed that Hightower was subjected to a polygraph examination. Nor is it disputed that he was singled out, without explanation, for this intrusive police procedure. Judge Sabo instead focused exclusively on the more trivial issue of whether Hightower passed the polygraph examination. (FF 160-68) Thus, Judge Sabo's findings leave intact the true significance of Hightower's PCRA testimony - namely, that law enforcement bias in the investigation led to the selective use of the polygraph device to intimidate a young college student who was clearly slated to be an effective defense witness. The withholding of this evidence, which had broader significance in terms of bolstering other evidence of investigative bias, violated the prosecution's Brady obligations. [27]

(c) The defense's inability to secure the attendance of eyewitness Debbie Kordansky

Debbie Kordansky was another witness to flight from whom the jury did not hear. Defense counsel never subpoenaed Kordansky because the prosecutor withheld her address and phone number, obstinately refusing to provide it throughout the pretrial phase of the case. She took the stand in 1995 because her recorded observations to the police corroborated Hightower's testimony that someone fled the scene. On December 9, 1981, Kordansky lived at the St. James House at 13th and Walnut. (8/3/95 Tr. 229) That morning at about 3:45 to 4:00 a.m. she heard a noise she thought was firecrackers. (Id. at 232) She saw a man running east on the south side of Locust Street, consistent with that of four other witnesses. (Id. at 238, 247, 252-53, 255)

Judge Sabo discounted Kordansky's usefulness as a defense witness principally on the ground that her observations of flight might have occurred after the police arrived. (FF 179-80) That Kordansky's observation of flight is corroborated by four other witnesses is of no moment in Judge Sabo's rendition of the record. Furthermore, his speculation that she might have seen someone flee after the arrival of the police simply makes no sense, and thus cannot be characterized as reasonably linked to the record. What Judge Sabo conveniently overlooks is the obvious and uncontested fact that she reported her observations to the police of someone fleeing the scene because she thought it would be helpful to them in their effort to apprehend the shooter. (Id. at 247, 252) Judge Sabo's tortured finding crosses over into absurdity precisely because there would be no reason for Kordansky to report her observations of events after the arrival of police, as such gratuitous information would not have had a bearing on who committed the crime. The plain fact that Kordansky reported her observations of flight bespeaks her first-hand impression that this information was significant from a criminal investigation standpoint. [28]

Judge Sabo also found, without elaboration and without substantiation from the record, that defense counsel made a strategic judgment not to call Kordansky, and that this decision served Jamal's interests. (FF 183) This finding, which also flouts rationality, nicely illuminates Judge Sabo's proclivity to disregard whole sections of the record. At the 1982 trial, attorney Jackson asked to speak to witness Kordansky. Prosecutor McGill advised Jackson that Kordansky did not want to speak to him, as if this somehow absolved Jackson from nonetheless making the effort to secure her attendance at the trial. (7/27/95 Tr. 53-55) Despite Jackson's requests, the Commonwealth did not produce Kordansky as a witness at trial. (Id. at 55-56) Consequently, attorney Jackson was left with the bleak prospect of securing Kordansky's attendance through a phone conversation with her from within Judge Sabo's chambers as the jury sat waiting. (Id.; 7/27/95 Tr. 55-56) In the end, Jackson was unable to persuade Kordansky to come into court voluntarily. Unable to subpoena her, attorney Jackson forged ahead with the trial without Kordansky's testimony, but not before complaining to Judge Sabo that lack of court-authorized funds led to his inability to retain an investigator, which then led to his inability to secure Kordansky for trial. (6/30/82 Tr. 14) Thus, Jackson never even hinted, let alone endorse the point, that he proceeded without Kordanksy's testimony as a matter of trial strategy. (7/31/95 Tr. 107-08) The notion that Kordansky's testimony was useless to the defense is simply preposterous, as attorney Jackson recognized. (Id.)

(d) The ordeal and unavailability of William Singletary

Unknown to the defense in 1982, William Singletary had provided a fifth account of flight to the police. Singletary's reported observations to the police, however, never came to the attention of defense counsel because it was suppressed by law enforcement. William Singletary is not an individual who surfaced for the first time in 1995. Like Veronica Jones, Dessie Hightower, Robert Chobert, and Debbie Kordansky, he was indisputably in the vicinity of the crime scene and interacted with arriving police officers. It is also undisputed that he was taken to the "Roundhouse" to give a statement of what he witnessed. (8/11/95 Tr. 227; 8/14/95 Tr. 36-37, 59) Singletary remained there for nearly five hours. (Id. at 212)

While at the Roundhouse, Singletary met with a detective whose name, as Singletary recalls, was Green. Singletary described Detective Green as an African-American, about 5'7" or 5'8" and approximately 170 pounds. (Id. at 209-10) Singletary also met a tall white detective wearing a button that said, "Kiss Me, I'm Irish." (Id. at 232) Although Singletary could not recall the name of this second detective, it appears to have been Det. Edward Quinn (6'4" and Irish)(8/14/95 Tr. 58-59), an officer called as a prosecution witness at the PCRA hearing. Detectives Green and Quinn interviewed Singletary. (8/11/95 Tr. 210)

According to the initial written statement he gave police, Singletary was at the corner of 13th and Locust and saw two shootings there. (Id. at 298) He saw the shooting of Officer Faulkner and he saw the shooting of Jamal. (Id.) He did not see Jamal with a gun and he did not see Jamal shoot Officer Faulkner. (Id. at 298-99) He did see Officer Faulkner's gun discharge and shoot Jamal. (Id. at 299) Singletary saw another man, who had exited from Billy Cook's Volkswagen, shoot the officer. (Id. at 235-36) The police refused to record this account and coerced Singletary to endorse a statement indicating that he saw nothing of consequence. (Id. at 212, 232, 235-36, 242-43) Singletary went on to describe continued harassment from law enforcement, ultimately causing him to relocate with his family to North Carolina. (Id. at 216- 24)

Vernon Jones, a highway patrolman who knew Singletary in 1981, testified at the PCRA hearing and confirmed that Singletary was the manager of a gas station, that there was "nothing unusual" about Singletary which would indicate a proclivity to fabricate, and that he was not someone who disliked police. (8/14/95 Tr. 28-29)

Judge Sabo discredits Singletary's testimony in its entirety largely on the basis of a December 17, 1981 police report purportedly memorializing a statement by Officer Jones. According to the statement, Singletary approached Officer Jones at the crime scene to ask, "What happened?" When Jones asked Singletary if he saw the shooting, Singletary allegedly told him that he had not. This police report, therefore, purports to refute Singletary's PCRA testimony. (FF 261-63)

Judge Sabo's reliance on this police report, however, is unreasonable, as a number of other facts seriously call into question this document's authenticity. First, P.O. Jones, who did not independently recall the events recorded in the statement, never signed it, which is a departure from law enforcement routine. (8/14/95 Tr. 22-23, 29) Second, the statement concerns only Singletary, which is odd in view of the fact that the statement characterizes Singletary as an irrelevant bystander with no information to provide law enforcement. (Id. at 45) Indeed, Jones was never asked to provide information about any other individuals who were present at the scene. (Id. at 47) Officer Jones could not explain why he was asked to give a statement which focused on Singletary, an irrelevant bystander. (Id. at 42, 45) Moreover, Officer Jones could not explain why this supposedly irrelevant bystander was taken to the Roundhouse to give a statement. (Id.) Nor is there an explanation why this supposed irrelevant bystander who had nothing material to provide law enforcement remained for questioning at the Roundhouse for nearly five hours. Law enforcement's efforts to memorialize in such detail the conduct of Singletary calls to mind the Shakespearean line about the lady who "doth protest too much." This unsigned police report, dedicated to the conduct of a supposedly irrelevant bystander, smacks of a defensive maneuver by law enforcement against the eventuality that Singletary would someday step forward with the truth.

(e) Physical evidence substantiating the eyewitnesses' account of flight by a third person

The prosecution disputes the relevance of the eyewitness accounts of flight based upon the ill-conceived theory that only two people were at the crime scene with P.O. Faulkner when gunfire erupted: Jamal and his brother, Billy Cook. Undermining this aspect of the prosecution's theory, therefore, punctures the image of a reliable open-and-shut case while affirmatively bolstering the defense theory that a third person, present at the scene, was actually seen fleeing toward a nearby alleyway. Judge Sabo's factfinding fails to grapple with the incontrovertible fact that the prosecution suppressed physical evidence which would have allowed the defense to do precisely that: undermine the prosecution's "two people at the crime scene" theory.

A reading of Judge Sabo's factfinding gives no clue that law enforcement actually initiated an investigation - without following through - into the possibility that a third person was at the crime scene and that this third person fled. On the night in question, law enforcement picked up at least three black males, including Cynthia White's pimp and Billy Cook's business associate (Kenneth Freeman), for questioning on suspicion of being the fleeing man who shot Officer Faulkner. New and uncontested evidence, revealed for the first time at the 1995 PCRA hearing, established that a duplicate driver's license belonging to one Arnold Howard was found in the clothing of the deceased officer. (8/9/95 Tr. 6; 8/11/95 Tr. 167) [29] Judge Sabo's factfinding, while not quarreling with the above-mentioned fact, denigrates its significance (FF 216): although the prosecution indisputably suppressed this evidence, Judge Sabo casually brushed that prosecutorial malfeasance aside without even acknowledging that this information undercut the prosecution's jealously-guarded "two persons" theory (to which Judge Sabo himself subscribed at trial (6/26/82 Tr. 83)) and bolstered the defense theory that another individual, the actual shooter, was at the scene.

By itself, the undisputed fact that the deceased officer had within his clothing a duplicate license belonging to a third person is more than just an interesting fact having a slight bearing on the guilt/innocence calculus, as it raises a question about the reliability of the prosecution's "two persons at the crime scene" theory. [30] But in view of the remarkable fact that five independent witnesses saw flight from the scene of the crime (a fact never considered by Jamal's jury), this uncontested item of physical evidence takes on substantial evidentiary significance. The eyewitness accounts and the driver's license mutually reinforce the indispensable message that the jury would have received in a genuinely fair trial proceeding - namely, that the prosecution's theory that only two people were at the scene who were in a position to shoot the officer is too unreliable to justify a "guilt beyond a reasonable doubt" conclusion.

B. Suppressed Evidence Concerning Law Enforcement Surveillance of Jamal (Claim 5)

Other suppressed evidence beyond the straightforward information concerning the flight of another person from the scene enhances the defense theory that law enforcement rushed to judgment. Evidence bearing upon law enforcement's deep-seated, continuing police bias against Jamal based on his political activism was never turned over to the defense for use at trial. Jamal sought to establish this bias through over 600 pages of FBI files demonstrating constant and continuing Philadelphia police surveillance and harassment against him since the late 1960's when, as a teenager, he helped to found the Philadelphia chapter of the Black Panther Party. The FBI files establish that the Philadelphia police actively engaged in this surveillance and maintained their own files on Jamal, but these files were never turned over to the defense. Judge Sabo simply refused to accept the FBI files in evidence at the PCRA hearing and engaged in no factfinding on that claim. (8/7/95 Tr. 24-25)31

C. The Manufactured Confession (Claims 3 and 9)

A central element of the prosecution case against Jamal was the claim that he twice shouted out a profanity-laden confession ("I shot the m-f'er and I hope the m-f'er dies") in a crowded emergency room while fifteen to twenty police officers were hovering over him. (E.g., 6/24/82 Tr. 56, 83) The prosecutor characterized the "confession" as a "picture of extreme arrogance, defiance, even a strange boastfulness. . . ." (6/19/82 Tr. 14-15) As significant as this alleged confession obviously was, with all of the police officers nearby to hear it, not a single police officer reported anything about a confession until two months elapsed. What prompted the reporting of a confession was not the homicide investigation, but an Internal Affairs investigation into Jamal's complaint of police brutality. The homicide investigation produced a signed statement from a police officer assigned guard duty over Jamal. This police officer, who was present when Jamal supposedly confessed, reported that Jamal had said nothing during the entire time he was with him. (8/1/95 Tr. 38) The jury never heard from this police officer. Consequently, this inflammatory evidence, which surely was a driving force in the jury's decision to convict and then opt for death, was never refuted in the way that it should have been..

As shown below, defense counsel sought to call this police officer, P.O. Gary Wakshul, to discredit the confession claim. However, prosecutor McGill represented to the trial court that Wakshul was "unavailable." Judge Sabo surmised that he was on vacation. With the full backing of the prosecutor, Judge Sabo refused the defense's urgent but modest request to have the officer called at home to see if he was still in Philadelphia and thus available to testify. All other requests for a continuance to secure this vital witness's attendance were rejected.

At the 1995 PCRA hearing, Wakshul finally testified. He revealed that he was in fact at home during the trial, and therefore easily reachable by telephone. According to Wakshul, prosecutor McGill must have known this. (8/1/95 Tr. 85) Thus, the very basis upon which Judge Sabo obstinately refused to grant a continuance - Wakshul's purported unavailability (FF 124) - turned out to be wrong. But even more importantly, Judge Sabo's irascible treatment of the defense's request for a continuance - at one point chiding Jamal that he and his attorney had "goofed" in failing to subpoena Wakshul - was symptomatic of his overt hostility towards Jamal. Judge Sabo simply accepted as fact that Wakshul was unavailable, even though no one had bothered to investigate whether this was indeed true. [32]

1. The explosive testimony of P.O. Gary Wakshul

Judge Sabo's practice of denigrating the significance of the evidence presented by Jamal continued in his factfinding concerning Wakshul's testimony. It is undisputed that Wakshul and his partner Stephen Trombetta guarded Jamal as he awaited treatment in the emergency room immediately after his arrest. It is also undisputed that Wakshul was present when Jamal supposedly shouted out a rather memorable confession (memorable for its shocking bravado and utter remorselessness). (8/1/95 Tr. 54) The clincher, however, is the following undisputed fact which the jury never learned: later that morning (at 5:50 a.m., about two hours after the shooting), immediately after he and his partner were relieved of their obligation to watch over Jamal, Wakshul told an investigating detective, and then signed a statement stating, that Jamal had said nothing the entire time they stood watch over him at the emergency room. (8/1/95 Tr. 28) Yet, in the face of these undisputed and explosive facts, Judge Sabo not only found that Jackson was not derelict in securing Wakshul's attendance, he implicitly found that Jackson had actually protected Jamal's interests in foregoing Wakshul as a witness. (FF 137)

The PCRA record concerning what Wakshul had to offer is truly remarkable. Wakshul testified to the following at the PCRA hearing. As of December 9, 1981, Wakshul had been a police officer for four years and was fully aware of the significance that confessions and admissions by arrestees have within the criminal justice process. (8/1/95 Tr. 4, 10) After Jamal's arrest at the crime scene, Wakshul and his partner, Officer Trombetta, transported Jamal to Jefferson Memorial Hospital. (Id. at 20)

Officers Wakshul and Trombetta were assigned to guard Jamal at the emergency room while he awaited treatment. (Id. at 19-21.) Wakshul understood that Jamal was the suspect in the shooting of Officer Faulkner. (Id.) He acknowledged in his testimony that guarding someone suspected of shooting a police officer was about the most serious matter a police officer could be involved in. (Id. at 20-21) He thus took this particular assignment, for which he had received training, very seriously. (Id. at 13-14, 21)

Shortly after being relieved of his duties that morning, Wakshul was interviewed by Detective Kaminsky. Wakshul admitted at the PCRA hearing that he wanted to be truthful to the detective and was motivated to help make sure the person responsible for the killing was punished. In short, he had no reason to withhold important information. (Id. at 31-32) Furthermore, he explained that he had experience and training from 1977 to 1981 in preparing police reports and being interviewed by investigating detectives. (Id. at 13-14, 19.) He knew that making accurate and thorough reports is important to the administration of justice. (Id.) Officer Wakshul further conceded that a confession by a suspect is more important than the other details he reported to Detective Kaminsky that morning. (Id. at 37) These facts are all uncontested and set the stage for the truly remarkable testimony that Wakshul was about to give.

As noted above, in the December 9, 1981 statement he signed at 5:50 a.m. (hence, considerably less than two hours after the supposed confession), Officer Wakshul told Detective Kaminsky that "We stayed with the male at Jefferson Hospital until we were released. During this time the Negro male made no comments." (Id. at 38) Officer Wakshul signed this statement. (Id.) Neither a legal education nor trial experience is a prerequisite to appreciating the significance of Wakshul's signed statement in view of the prosecution's claim that Jamal confessed in Wakshul's presence. Wakshul provides more than a simple absence of a report of a confession; he affirmatively refutes the suggestion that a confession was uttered - a fact that attorney Jackson tried to impress upon Judge Sabo at trial. (7/1/82 Tr. 36-37) Yet, Judge Sabo concludes in his factfinding that Wakshul was actually of no help to the defense. (FF 137) [33]

Judge Sabo's treatment of Wakshul's testimony highlights just how insistent he was in denying Jamal post-conviction relief. Judge Sabo accepted Wakshul's claim at the PCRA hearing that he in fact did hear Jamal confess (FF 137), but did so at the expense of common sense. To explain away his December 9, 1981 signed statement that flatly refutes this claim, Wakshul initially put forth the excuse that he did not feel the confession was important at the time he signed the statement, and that he did not appreciate its importance until over two months had elapsed. (8/1/95 Tr. 61) This preposterous testimony - so preposterous that it virtually proves Wakshul was manufacturing the confession claim, as did the other witnesses - never receives any treatment from Judge Sabo: it is simply ignored as a monumental embarrassment, and thus, in Judge Sabo's factfinding universe, a non-fact.

Instead, Judge Sabo's factfinding seizes upon Wakshul's additional defense to his failure to report hearing a confession - namely, that he was too distraught at the time to report the confession. (FF 132) But this excuse was equally feeble and just as perjurious.34 First, the uncontested record establishes that Wakshul had the presence of mind to provide abundant details about the events that morning to Detective Kaminsky. He told her the exact time of the incident (3:54 a.m.), the precise color of the automobile driven by the person who told him an officer had been shot, a graphic description of that person, the relative positions of the slain officer and Jamal as they were found shot at the scene, and the existence of a press card found in Jamal's wallet. (8/1/95 Tr. 33-36) Wakshul's ability to provide these details - which he acknowledged paled in importance to a confession (Id. at 37) - proves that he was emotionally and cognitively equipped to inform Detective Kaminsky that Jamal had confessed, if such was the case. Indeed, the record proves definitively and conclusively that Wakshul was emotionally and cognitively capable of informing Detective Kaminsky about whether Jamal made any statements: he affirmatively reported that he had not. These uncontested facts, which unquestionably refute Wakshul's lame secondary excuse that he was too distraught to report the confession, figure not at all in Judge Sabo's factfinding.

But there is more. Wakshul had another opportunity to report hearing a confession, but again said nothing. This latter fact is significant because Judge Sabo, once again, brazenly submerges from view inconvenient facts in his factfinding. According to Judge Sabo, Wakshul only made two formal statements to investigating detectives: one being the December 9th statement and the other being a February 11, 1982 statement concerning the confession given to Internal Affairs. (FF 133) This finding that Wakshul only made two formal statements to investigating detectives is indisputably wrong - a fact so manifest that the Commonwealth will likely concede the point. [35] While ignoring the fact that Wakshul actually made three statements, Judge Sabo brushed aside the December 9th statement as the product of an overwrought police officer and then elevated the February 11th statement to the status of "truth."

Judge Sabo's factfinding omits any mention of the essential and devastating fact that, on December 16, 1981, Officer Wakshul made a statement to Detective Thomas in furtherance of the investigation. (Id. at 38, 40) He provided Detective Thomas such details as the color of Jamal's pants and shirt, and information about a camera Officer Faulkner had. (Id. at 40-41) Again, Officer Wakshul made no mention of any confession. (Id. at 42) Instead, when Detective Thomas asked "Is there anything you wish to add to this interview?" Officer Wakshul responded "Nothing I can think of now." (Id. at 42) Wakshul did not, and could not, explain away his failure to mention a confession in this December 16, 1981 statement by pointing to his emotional condition. Recognizing that his effort to use the excuse of being overwrought provided no safe haven from the clear import of his December 9th statement that Jamal made "no comments" at the emergency room, Wakshul reverted back to the absurd excuse that he simply did not appreciate the importance of the alleged confession until two months elapsed. (Id. at 61) By conveniently ignoring the existence of this December 16, 1981 interview statement, Judge Sabo conveniently avoided the bind Wakshul found himself in, and the absurdity of his excuse that he gave at the PCRA hearing to extricate himself from that bind.

The context in which the confession evidence surfaced is illuminating, and never fully dealt with by Judge Sabo. As noted at the outset, the whole notion that Jamal confessed - which would be a highly relevant investigative fact - did not come to light through the homicide investigation (actually, the opposite fact was reached by the homicide investigation -- namely, that Jamal said nothing). Rather, this highly relevant evidence of guilt suspiciously surfaced within law enforcement through an internal affairs investigation prompted by Jamal' police brutality complaint filed in January, 1981. (7/31/95 Tr. 125) [36]

On February 11, 1982, when he was interviewed by Internal Affairs regarding the brutality charges, Officer Wakshul sang a different tune from that of his December 9th statement. (8/1/95 Tr. 48-49) Whereas he initially claimed that Jamal said nothing while in the emergency room, he told Internal Affairs investigators that this man, perceived to be a cop-killer who had the audacity to file brutality charges against police officers, actually did confess to the shooting. When asked in the February 1982 Internal Affairs interview why he had not reported the alleged confession earlier, Officer Wakshul answered: "I didn't realize it [the confession] had any importance until today." (Id. at 61) These facts as to how the confession evidence surfaced never received fair treatment by Judge Sabo.

Contrary to Judge Sabo's factfinding, Jackson made it very clear at the PCRA hearing that he considered Wakshul's testimony indispensable to discredit the prosecution claim that Jamal had confessed to the crime. (7/27/95 Tr. 65) Both he and Jamal desperately wanted Wakshul to testify. (7/31/95 Tr. 109) Furthermore, Jackson believed he could have had a "field day" with Wakshul, in view of his laughable claim that he neglected to mention the confession until February 11, 1982, because he did not appreciate its importance earlier. (7/31/95 Tr. 111) Jackson recognized, as any criminal defense attorney would, that Wakshul had the potential to devastate not only the credibility of the prosecution's claim concerning the confession, but the reliability of the prosecution's case as a whole. (Id. at 112) By contrast, in Judge Sabo's bizarre factfinding universe, Jamal was better off without Wakshul. [37]

Wakshul's value as a witness was enhanced even further by the fact that the confession claim, in and of itself, was already ripe for attack. Other evidence substantiates Wakshul's signed December 9th statement that Jamal did not confess. Doctor Regina Cudemo was present in the emergency room and did not hear Jamal utter any significant remark, let alone a memorably crude confession. (6/29/82 Tr. 24) Doctor Anthony Coletta treated Jamal within five to ten minutes of his arrival. (6/24/82 Tr. 66, 73, 167) He found 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)

Wakshul's obvious willingness to perjure himself by stating that he did in fact hear a confession would have enhanced the attack upon the two prosecution witnesses who testified at trial to hearing the confession. These two witnesses were P.O. Garry Bell (P.O. Faulkner's partner and "best friend"), and a hospital security guard, Priscilla Durham, who first denied knowing P.O. Faulkner, then admitted talking to him on a number of occasions, sometimes over coffee. (6/24/82 Tr. 37, 44, 156) Durham testified the confession was shouted out in the presence of fifteen to twenty officers hovering over a struggling Jamal. (Id. at 28, 56) She claimed that he shouted the confession again, using the exact same words and in the midst of a crowd of police officers. (Id. at 30, 83) Bell testified that he approached Jamal soon after he was brought into the emergency room for treatment so as to confront him. Without prompting, Jamal allegedly directed the alleged confession at Bell, even though there is no indication that Jamal knew that Bell was P.O. Faulkner's friend and former partner. (Id. at 140)

Although Officer Bell made a log report that night and volunteered a statement to homicide detectives the following week (PCRA Exh. 24), he did not report to anyone for two months that this man who he confronted on the emergency room floor confessed so brazenly directly in his face; and similarly, Durham, who had daily contact with police (6/24/82 Tr. 45), never reported to law enforcement investigators that she too heard the supposed "confession" until March, 1982, when she also was interviewed by Internal Affairs detectives. (Id. at 154, 169) [38] None of these facts appear in Judge Sabo's selective marshaling of the evidence.

Indeed, Judge Sabo never grapples with the remarkable fact that not a single law enforcement document even hints at a confession or admission until two months elapse and Internal Affairs injects itself into the case. This fact, when examined in light of Durham's claim that over a dozen police officers hovered over Jamal when he uttered the confession on one occasion, and repeated it later among a crowd of police officers, is simply too stunning to ignore; and yet, Judge Sabo does. In an investigation that generated reams of paper (including the supposedly meaningless report by P.O. Jones concerning the supposed irrelevant bystander, William Singletary), the absence of a single document from within the homicide investigation concerning an explosive item of evidence - a truly remarkable confession - speaks volumes about the integrity of the prosecution's claim that Jamal confessed. That the only document generated from the homicide investigation addressing whether Jamal said anything in the emergency room is Wakshul's December 9th signed report simply clinches the point.

Wakshul's PCRA testimony serves to undercut Bell and Durham in other ways (also ignored by Judge Sabo's selective factfinding). He testified that he knew Officer Bell and could not recall seeing him in the emergency room (8/1/95 Tr. 23), even though, according to Bell, the confession was said directly to him. (6/24/82 Tr. 140) He also could not recall any hospital personnel or security guards being present. (Id. at 50) The only person who Wakshul could remember nearby was his partner, Officer Trombetta. According to police reports, Trombetta never heard a confession either. (Id. at 57) [39]

2. The denial of the continuance to secure Wakshul's attendance

Judge Sabo's marshaling of evidence to render factfindings on the issue of the continuance is also unreasonable. Judge Sabo found that the denial of the continuance was justified in view of Wakshul's vacation. (FF 124) The record positively refutes this finding. The custom and practice in Philadelphia at the time of Jamal's trial was for the defense lawyer to request of the prosecutor to have the needed officer come to court. (7/27/95 Tr. 63-64) A subpoena was unnecessary. Attorney Jackson was familiar with this custom and practice and expected it to be followed in this case. (Id.)

During the defense portion of the trial, Jackson requested of prosecutor McGill to produce Wakshul as a witness. (Id. at 64) To Jackson's shock, McGill refused, exclaiming that he was "not bringing him in at the last minute. (Id. at 33; see also Id. at 64-65; 7/28/95 Tr. 182) Suspiciously, it was Judge Sabo who first raised the possibility that Wakshul may be unavailable because he was "on vacation." (7/1/82 Tr. 37) [40] Jackson and Jamal both pleaded with Judge Sabo, without success, to grant a continuance so that Wakshul could testify upon returning from vacation. (Id. at 37-39; 7/28/95 Tr. 66) Judge Sabo coldly remarked that he was "not going to go looking for anybody now," and that Jackson and Jamal would have to forego that witness because Jackson had "goofed." (7/1/82 Tr. 38) Judge Sabo even refused to endorse Jackson's urging that prosecutor McGill simply telephone Wakshul's home to see if he was within the jurisdiction, characterizing Jackson's pleas as "nonsense." (7/1/82 Tr. 38-39; 7/27/95 Tr. 66) [41]

Judge Sabo's obstinacy is particularly distressing in retrospect, as it is now a matter of record that Wakshul was in Philadelphia, available to testify, notwithstanding his vacation. (8/1/95 Tr. 94, 100-03, 118, 136) According to Wakshul's 1995 PCRA testimony, prosecutor McGill and/or police supervisors directed Wakshul and other officers to "stay available" and "not to go away on vacations" during the course of Jamal's trial. (8/1/95 Tr. 80) He understood this to mean that he was to "stay around and [be] available in case we want to call you or you're called by someone, and see what transpired. . . . and I did not go away on vacation, most of it was spent at home." (Id. at 118) Consequently, Wakshul spent his vacation at home in Philadelphia, and thus reachable by phone, until he learned that the Jamal trial was over. (Id. at 94, 100-103, 118, 136) As the Court acknowledged during the PCRA hearing, Wakshul was "already here and available." (Id. at 142) [42]

Judge Sabo's factfinding concerning the defense's need for, and inability to secure the attendance of, witness Wakshul exemplifies why this Court must independently determine the facts in this case. No matter how compelling the record, and no matter how ludicrous the proposition that is deployed in defiance of that record, Judge Sabo exhibits no hesitation in smothering the vitality of the constitutional claim with ill-conceived findings of fact. [43]

C. Trial Counsel's Ineffective Assistance During The Guilt Phase (Claims 6-8)

The most extensive factfinding by Judge Sabo concerns the issue of trial counsel's alleged ineffectiveness during the guilt phase. Here, too, one sees findings of fact neither disciplined by logic nor constrained by the plain meaning of unrebutted testimony. A tiresome tactic reverberates throughout Judge Sabo's factfinding on this claim: his findings amount to nothing more than self-serving speculation extrapolated from insignificant clusters of facts - all the while ignoring the truly probative evidence which affirmatively refutes those findings.

While the specific findings are unreasonable in light of the record as a whole, Judge Sabo's findings on this claim should be set aside for a more basic reason. The essence of Judge Sabo's rejection of Jamal's ineffective assistance claim - contained within nearly half of the factfindings on this issue - is that any defects in defense counsel's representation were caused by Jamal himself, as he is said to have exercised plenary control over the defense case. (FF 64-77) As Judge Sabo summarized in paragraph 68 of his Conclusions of Law: "Because Petitioner did not cooperate with his attorney but retained personal control of trial strategy, any supposed 'ineffectiveness' in the penalty phase or at trial was Petitioner's own responsibility."

1. The issue concerning Jamal's alleged control over the defense case

Judge Sabo's conclusion that Jamal exercised ultimate control over the defense case is lifted straight from the Commonwealth's cross-examination strategy vis a vis attorney Jackson at the 1995 PCRA hearing. The Commonwealth posited questions to Jackson at the PCRA hearing which carried the theme that Jamal controlled the defense case. As shown below, Jackson emphatically rejected even the insinuation that Jamal controlled the manner in which the defense proceeded. (7/27/95 Tr. 76, 139, 140-41)

Defying the well-known cautionary jury instruction that a question alone is not evidence (it is the question coupled with the answer), Judge Sabo's factfinding in regards to the "control" issue is patently unreasonable when examined in light of the record as a whole because he simply credits the implications embedded in the cross-examination questions. For Judge Sabo, Jackson's answers did not even rise to the level of inconvenient facts to rebut; they were simply ignored. Although the prosecutor's questions were calculated to secure evidence to the contrary, the unvarnished fact remains: not a scintilla of evidence exists in the record supporting Judge Sabo's finding that Jamal controlled the defense case. [44]

The device by which Judge Sabo circumvents Jackson's testimony is, by now, very familiar. Judge Sabo whitewashes the record with the conclusory finding that Jackson was "incredible" in testifying repeatedly that he, and not Jamal, was in control over the defense case. (FF 78-82) An analysis of Judge Sabo's finding that Jackson was not credible illuminates the unreasonableness of Judge Sabo's factfinding on the ineffectiveness claim. To prove that Jackson is not credible on the "control" issue, Judge Sabo relies principally on three incidents at trial which supposedly establish that Jamal was, in fact, in control: (1) Jackson made copies of witness statements and provided them to Jamal, but failed to retain a complete set of the file (7/27/95 Tr. 106-09)(see FF 70); (2) Jackson on one occasion honored Jamal's directive that he not appear at a sidebar conference (Id. at 140-44)(see FF 66); and (3) Jackson on one occasion advised the trial court that he was moving to dismiss the murder charge because Jamal directed him to do so (7/28/95 Tr. 116-17) (see FF 74).

In FF 70, Judge Sabo finds that Jamal "apparently refused to return" the photocopied file to Jackson after his pro se status had been terminated. This conjecture was deduced solely from a single occasion when Jackson asked prosecutor McGill for documentary materials that he did not possess. In fact, this particular episode occurred before Jamal decided to proceed pro se, and thus, before the issue of control ever surfaced. (4/29/82 Tr. 58) Jackson never testified, and no evidence suggests otherwise, that Jamal retained control over case materials to which Jackson did not have access. In fact, Jackson repudiated this suggestion. (7/27/95 Tr. 106-09)

In FF 66, Judge Sabo seizes upon a single instance in which Jackson refused to participate in a sidebar conference because Jamal asked that he not. Judge Sabo, in a particularly sinister distortion of the record, omits mention of the fact that this single episode occurred immediately after Judge Sabo stripped Jamal of the opportunity to personally conduct the voir dire. [45] Thus, this episode took place at a time when it was unclear who was in charge of the defense, and Jackson's willingness to abide by Jamal's directive on this single occasion simply reflected Jackson's understanding that Jamal continued to be pro se counsel at that juncture in the proceedings. (6/9/82 Tr. 3.40-41) Nothing in this single episode suggests that Jackson relinquished control over the strategic and tactical judgments routinely made by trial counsel during the course of a trial (as the substantive part of the trial had not yet started). If anything, this incident reveals Jackson's willingness to respect Jamal's status as a pro se litigant. [46]

Another tortured marshaling of evidence occurs in FF 74. Judge Sabo found that Jackson moved to dismiss the murder charge at the end of the prosecution's case-in-chief because Jamal directed him to do so. (7/1/82 Tr. 44, 55) Because Jackson made the motion at Jamal's direction, Judge Sabo infers that Jamal was in control. The record, however, proves precisely the opposite. Jackson testified that all strategic and tactical decisions made during trial were his own, and as proof of this fact, Jackson pointed out that it was his practice to state explicitly on the record those instances when he was doing something because Jamal directed him to do so. (7/28/95 Tr. 133) The incident recounted in FF 74 was the only time that Jackson staked out a legal position after prefacing his remarks in this fashion. Thus, this single instance where Jackson expressly indicated that his advocacy was made at the direction of Jamal actually confirms that his conduct during the trial was not dictated by Jamal. [47]

Judge Sabo also relies, to a lesser degree, on other parts of the record to support his conclusion that Jamal was in control of the defense case. He found that Jamal "personally directed" the use of peremptory challenges, but the supporting citation to the record reveals the insignificant fact that Jackson conferred with Jamal about the exercise of those challenges. (FF 67) [48] Judge Sabo also found that Jamal "personally decided what character and exculpatory witnesses would be called on his behalf, refusing to even tell his trial attorney who these persons were." (FF 69) Absolutely nothing in the record supports this proposition, and the events at trial confirm that Jackson was aware of witnesses to call. In those instances where Jackson failed to secure a witness's attendance, he forthrightly placed the blame on himself. [49]

Judge Sabo's laundry list of other incidents purportedly reflecting Jamal's control over the defense case are especially trivial. (FF 64, 68, 71-73) Essentially, these incidents reflect the rift that existed between Jamal and Jackson; and indeed, as the Petition sets forth in detail (Claim 7), a serious rift did rupture this attorney-client relationship. But it is the height of unreasonableness to infer from this fact that Jamal had control over the defense case. Nothing in the rift between Jackson and Jamal points to this conclusion. If anything, this rift indicates Jamal's upset over having lost control. (See Claim 7)

Therein lies the irony and unreasonableness in Judge Sabo's conclusory finding that Jamal had "control" over his own case. The acrimony between Judge Sabo and Jamal, the degenerated relationship between Jamal and Jackson, and the ultimate banishment of Jamal from approximately half of the trial - all of these things occurred because Jamal lost control over the case; they in no way bespeak the assertion of control, as claimed in Judge Sabo's Findings of Fact. [50]

2. Specific findings concerning Jackson's performance

The Petition sets forth in detail the deficiencies in Jamal's trial representation. Aside from placing blame on Jamal for those deficiencies in attorney Jackson's performance, Judge Sabo uniformly minimizes their prejudicial impact.

(a) Judge Sabo's finding concerning Jackson's pretrial preparation

Anthony Jackson was appointed to represent Jamal in December, 1981. (7/27/95 Tr. 37) At that time, Jackson was employed by a public interest group and was in the process of transitioning back into private practice. (Id. at 36-37) In the first four months of his involvement, from December 15, 1981 to April 15, 1982, Jackson was in the process of opening his private practice. (7/31/95 Tr. 89) He had no paralegals, no investigators, and he shared a secretary with another lawyer. (Id.) Although Jackson was ill-equipped to handle this complicated and high-profile capital case, Judge Sabo makes only one finding concerning Jackson's pretrial preparation, and that finding is conclusory in nature: "Mr. Jackson conducted thorough and intensive pretrial preparation for a period of five months." (FF 61) [51]

Finding of Fact #61 is supported by a citation to seven pages in Jackson's testimony (all answers to cross-examination). In those relied-upon seven pages, Jackson testified that: (1) he "did not review every statement in this case prior to trial" (7/28/95 Tr. 57); (2) he acquiesced to the prosecutor's suggestion that he read the police reports at least ten times (Id.); and (3) he prepared the case with the intention of being Jamal's trial counsel, "whatever that means." (Id. at 68) Nothing in these relied-upon seven pages actually supports the proposition that Jackson worked diligently in preparing Jamal's case for trial. In fact, the record demonstrates that the opposite is true.

During the five month pretrial period that Jackson was Jamal's trial counsel, he filed various motions for appointment of experts, and filed a motion to suppress, a lineup motion, and a discovery motion. Jackson also handled various issues relating to Jamal's health and prison conditions. (7/31/95 Tr. 90-91) In addition, in order to generate income to fund his fledgling law practice, Jackson had to devote attention to other cases and clients. (Id. at 91, 132) According to Jackson, "there was very little time to do anything else but to file all of these motions and to argue the motions themselves." (Id. 92) Judge Sabo's factfinding treats this testimony as if it did not exist. [52]

The key period for trial preparation was to be the final month leading up to the trial. Thus, on April 29, 1982 (about five weeks before the trial was to begin and four months into the case), Jackson requested that the court appoint a second attorney to assist with the defense, as he recognized that he was in over his head. (4/29/82 Tr. 6; 7/27/95 Tr. 68, 92) Whereas Judge Sabo blithely characterizes Jackson as having thoroughly and intensively prepared for trial as of this date, the record reveals Jackson's urgent plea for help with the trial just around the corner:

[T]here is a problem in organizing the materials that I have before me, as well as preparing the appropriate research . . . . There is a great deal of work to be done, a great deal of information to be developed, and I have some reservations as to whether or not I can properly be prepared to go to trial within the next three weeks, or three to four weeks. . . . I have reams and reams of material to go through . . . . And that's my problem. Physically, your Honor, I can do only so much. As your Honor well knows, I do have other trials. . . . I am in the process of reducing my trial load, your Honor, to allow me to prepare effectively for this matter. But there are some matters that are still outstanding. (4/29/82 Tr. 6-9) [53]

Judge Sabo's factfinding ignores this event, just as it ignores this critically important five-week pretrial period. Instead, Judge Sabo accuses Jackson of falsely claiming at the PCRA hearing that he was ill-prepared, citing the supposed fact that he was "motivated by a desire to portray his actions as . . . . constitutionally defective." (FF 82) This attribution of motive to falsely testify is nowhere supported by a citation to the record. Judge Sabo's other aspersion against Jackson - that he was slanting his testimony in Jamal's favor out of ego gratification (FF 78 - is just too absurd to take seriously. The "ego gratification" motive found by Judge Sabo is based upon nothing more substantial than Jackson's agreement with the prosecutor's assertion that trial lawyers typically have healthy egos. (7/27/95 Tr. 92-93) This innocuous acquiescence to an innocuous question, in Judge Sabo's factfinding universe, is transformed into a motive to falsify testimony.

In sum, Judge Sabo's quest to find an ulterior motive for Jackson to confess his own ineffectiveness is sheer folly, as the record is bereft of evidence on which to make such findings. But more fundamentally, it is a misguided quest, as a reading of Jackson's PCRA testimony demonstrates that he resisted characterizing his trial performance as ineffective. (7/27/95 Tr. 162, 166, 168; 7/28/95 Tr. 59) In fact, Jackson readily admits ineffectiveness in only one respect: securing money for the retention of experts and an investigator. (7/31/95 Tr. 184)

On May 13, 1982, after Jackson's applications for additional funds to employ experts was denied, Jamal requested, and was granted the right, to represent himself. (7/27/95 Tr. 69) Jackson then became "backup" counsel from that point until June 18th, the day of opening statements. (Id.) Jackson was backup counsel from May 13th to June 18th. (7/31/95 Tr. 94) Jackson vehemently protested his continued involvement in the case and he professed ignorance as to his obligations as backup counsel. (Id.; 7/27/95 Tr. 69, 149-51) Forced to remain in the case as backup counsel, Jackson took to heart Judge Sabo's instructions that backup counsel need not do anything by way of trial preparation. (6/1/82 Tr. 5; 7/27/95 Tr. 95) [54] Thus, during the period of time that virtually all competent trial lawyers dedicate themselves to preparing for trial, Jackson did nothing on Jamal's behalf. (7/27/95 Tr. 17, 93-96, 138, 150-51; 7/31/95 Tr. 17) [55]

Moreover, Jackson expressed discomfort with doing nothing, prompting him to ask "many times" to be relieved from the case. (7/27/95 Tr. 70) [56] The fact that Jackson did nothing to prepare for trial during the immediately preceding five weeks is both irrefutable and unmentioned in Judge Sabo's factfinding. Likewise, Judge Sabo's factfinding says nothing of the fact that, when trial began with jury selection, Jackson never expected to be in the role of trial counsel. (7/28/95 Tr. 71) As Jackson put it, "all of a sudden I was told that I had to do it. I had not planned on it." (Id.) The record amply supports Jamal's claim that defense counsel was unprepared to handle the trial.

(b) The manner in which Jackson resumed his role as trial counsel

By omitting the above-noted facts from his factfindings, Judge Sabo avoided the most disturbing aspect of the record with respect to Jackson's ability to discharge his Sixth Amendment obligations. On the very day that the prosecutor was to give his opening statement, Judge Sabo permanently stripped Jamal of his pro se rights and thrust attorney Jackson into the lead counsel role (which did not even prompt a request for a continuance). The uncontroverted fact is plain: Jamal's trial counsel launched into the trial totally unprepared and unwilling to take on that responsibility.

The trial and PCRA record reveals the following in terms of how Jackson once again found himself in the lead counsel role. By the third day of jury selection, the prosecution requested that Judge Sabo assume control over the voir dire, arguing that the pace was too slow and Jamal's pro se status instilled fear and anxiety in the venire. (6/9/82 Tr. 3.2-4) Judge Sabo accepted the prosecution's contentions and provided Jamal with two options in regards to the voir dire: relinquish control to attorney Jackson or relinquish control to him. (Id. at 3.17-19). Refusing to make a choice, Jamal found himself protesting Judge Sabo's sua sponte control over the voir dire. (Id. at 3.19) [57]

After the jury was empaneled, and just as the prosecutor was to begin his opening statement, Judge Sabo ordered a stunned Jackson to act as lead counsel throughout the trial. As the above discussion shows, Jackson not only did no trial preparation in the five weeks preceding this moment when he was elevated to trial counsel, he had complained of being in over his head two weeks before he even became backup counsel. (4/29/82 Tr. 6-9) Thus, this was not a situation where Jackson could fall back on earlier thorough trial preparation, which would minimize the prejudice associated with not having done anything for the past five weeks. The five weeks of inaction was but a continuation of five months of no meaningful trial preparation.

Under these circumstances, Jackson adopted, by necessity, a shoot-from-the-hip approach to the trial. Jackson testified at the PCRA hearing that he was insufficiently prepared to handle the trial, and that Jamal was more familiar with the investigatory record than he. (7/28/95 Tr. 73, 81) Nonetheless, as highlighted above, once put into the role of lead counsel, Jackson took control of the litigation. He flatly repudiated the suggestion that Jamal controlled the defense case. (7/27/95 Tr. 138-39; 159-60; 7/28/95 Tr. 74, 131-32) Jamal did not dictate strategy to Jackson. (7/27/95 Tr. 141) Jackson decided what he would argue to the jury and did not ask Jamal what to argue. (7/28/95 Tr. 102-03) Jackson, not Jamal, made the tactical decisions as to what witnesses to call or not to call, although he sometimes consulted with Jamal about these decisions. (Id. at 191-93) [58] Yet, as noted above, Judge Sabo brushes aside the record concerning Jackson's trial performance on the dubious ground that Jamal controlled the defense case.

Although Judge Sabo resorts to unfair reliance upon certain aspects of the record (as shown above) to support the proposition that Jamal was in control, he studiously avoids grappling with the more significant fact that Jackson's relationship with Jamal became progressively strained after he stripped Jamal of his right to represent himself. (7/27/95 Tr. 75) The Petition sets forth in detail the nature and degree of this rift between counsel and client. (See Claim 7)

(c) The particular lapses by Jackson

The record reveals that Jackson did not devise a trial strategy; did not interview witnesses; did not prepare examinations, opening remarks and voir dire topics; did not target evidentiary issues to research; did not subpoena witnesses; did not adequately consult with his client; did not familiarize himself with the case file; did not consider avenues of attacking the prosecution's case; and did not assemble evidence to present to the jury that pointed squarely to Jamal's innocence. (See generally 4/29/82 Tr. 10) In the end, having failed to prepare even modestly for this capital trial, Jackson lurched forward in the litigation making life-and-death decisions serendipitously. Much of Jackson's actions in court were spontaneous reactions to events as they occurred. Yet, Judge Sabo's Findings of Fact are remarkably silent on the particular lapses committed by attorney Jackson.

For example, Judge Sabo says nothing about the uncontested fact that Jackson did not interview key defense witnesses, such as Dessie Hightower, Veronica Jones, Dr. Anthony Coletta (Jamal's treating physician), [59] and the character witnesses, [60] before putting them on the stand. (7/27/95 Tr. 50-51) In one instance, while questioning Veronica Jones, Judge Sabo asked Jackson "where are you going?" Stunned by Jones's retraction of seeing two men flee the scene, Jackson admitted that he "never talked to her before." The trial court then advised Jackson to take a recess and "take her outside and talk to her and interview her." ( 6/29/82 Tr. 137)

Jackson's shoot-from-the-hip approach was evident in his lackluster cross examinations, which Judge Sabo completely ignores. For example, Jackson failed to attack the credibility of Robert Chobert. He was aware that Chobert had been convicted of felony arson-for-hire. (Id. at 57) Jackson sought unsuccessfully to introduce that conviction as crimen falsi evidence. (Id. at 58) However, he did not seek to introduce the fact that Chobert was on probation as evidence of possible bias or a motive to lie -- a serious blunder in view of Chobert's recantation of seeing someone flee the crime scene. (Id.) The reason for this blunder was that Jackson was not aware that such evidence was admissible on that basis. (Id. at 58-59) Jackson also failed to take advantage of the fact that the autopsy report included a handwritten notation that the bullet removed from the deceased's head wound was a ".44 cal[ibre]" bullet, whereas the supposed murder weapon was a .38. (Id. at 78)

Jackson unreasonably failed to object to the prosecutor's blatantly prejudicial comments during his guilt phase summation. For example, Jackson overlooked the prosecutor's scornful remarks aimed at Jamal's protestations over the deprivation of his pro se rights. He never protested the prosecutor's outrageously improper vouching for the credibility of witness Chobert, even though that vouching occurred in the face of Judge Sabo's preclusion of evidence that would have prevented such vouching. Furthermore, Jackson gave the prosecutor free reign to issue inflammatory statements to the effect that this particular case was a referendum on fighting crime generally, should be seen as part of a larger effort to thwart the siege of criminality in our urban neighborhoods, and that, therefore, the community expected and demanded a conviction. (See Claim 14)

Judge Sabo's factfinding does not address Jackson's unreasonable failure to ensure the empaneling of a fair and impartial jury. The record shows that Jackson failed to make an adequate record of the prosecution's racially-motivated use of peremptory challenges to remove African-Americans from serving on the jury. He failed to use either a cause or an available peremptory challenge to remove juror Domenic Durso despite knowing that this juror had as a friend a police officer who had been shot in the line of duty and was still receiving disability payments. Similarly, he never deployed the use of either a cause or an available peremptory challenge to remove alternate juror Kleiner, who was then married to a Philadelphia police officer with two young children living at home. Lastly, when Judge Sabo struck black juror Jeannie Dawley in chambers -- the only juror selected during the period when Jamal was representing himself pro se (see Claim 17) - Jackson failed to insist that Jamal be advised of the court's intentions or to object adequately to the court's action. This juror was replaced by alternate juror Michael Courchain who showed hostility to trial counsel during voir dire and admitted he could not be fair.

Finally, the most serious error during the guilt phase was Jackson's failure to secure P.O. Wakshul's attendance as a witness, a blunder that Jackson admits was his fault. (Id. at 195; 7/28/95 Tr. 77, 80-81) Although Judge Sabo unreasonably pins the blame on Jamal, the record divulges that this blunder occurred because Jackson had inexcusably forgotten about Wakshul's statement that "the Negro male made no comments" contained in the police report from December 9, 1981. (7/1/82 Tr. 33-34, 7/27/95 Tr. 197) Furthermore, the failure to bring Wakshul in as a witness was no aberration, as Jackson also failed to arrange for the production of Kordansky and Singletary - two additional witnesses on the flight issue. [61]

Jackson was also admittedly ineffectual in failing to obtain court approval for adequate funds to hire experts and an investigator. (Id. at 184; 7/28/95 Tr. 49) [62] Judge Sabo rejects this admission, finding instead that "the defense was receiving an undisclosed amount of money from various sources prior to and during trial." (FF 57) Jackson and defense investigator Greer, the only ones questioned on this issue, flatly denied ever receiving money from any outside entity (individual or organizational). (7/31/95 Tr. 119)("I never received any funds outside of what the Court gave me from any source, from anyone at any time.") Judge Sabo simply discards Jackson's unequivocal testimony, even though the prosecutor openly admitted at the PCRA hearing that he was not suggesting that Jackson had received outside funds. (Id. At 159)

Judge Sabo also rejects Jackson's admission of ineffectiveness in securing funding on the ground that "Judge Ribner ruled that additional funds would be provided when Mr. Jackson submitted itemized bills to justify each charge." (FF 56) While this assertion is literally true, it simply avoids the point of Jackson's admission. Jackson's admission of ineffectiveness in securing funding reflects his failure to follow the procedure enunciated by Judge Ribner. That Judge Ribner told Jackson how to secure additional funds (which is the essence of FF 56) does not eclipse the relevant point that Jackson was ineffective in failing to follow Judge Ribner's instructions. [63]

Finally, Judge Sabo justified his rejection of Jackson's testimony by citing to an instance in the PCRA hearing where Jackson is allegedly caught having misrepresented a fact concerning funding back in 1982. Specifically, during cross-examination, Jackson was accused of misinforming the trial court back in 1982 of stating that there had been "no" funds allocated for experts. Jackson responded, "If I said that there were no funds, that was just a slip." (7/28/95 Tr. 32) Judge Sabo seized upon Jackson's "just a slip" remark as indicative of Jackson's lack of credibility. (FF 79) Yet, a review of the relevant 1982 minutes reveals that the prosecutor's cross-examination on this point was grossly unfair. Those minutes show that Jackson did inform the trial court that some funding had been provided. Thus, when Jackson was confronted with the accusation that he failed to inform the court of receiving any funds, he was being confronted with erroneous information. [64] Jackson's handling of the accusation at the PCRA hearing revealed only his admission that if he had misrepresented that there was no funding for the defense (which he had not done), then it was a slip. Judge Sabo's reliance on this segment of the PCRA record to support his credibility assessment of Jackson is symptomatic of Judge Sabo's handling of the record generally.

Sadly, Judge Sabo's biased maneuvering through the record does not end there with respect to the funding issue. Judge Sabo further finds that Jackson misrepresented the claim that he received "no" funds because he "did not know how to obtain such funds." In rebutting this purported misrepresentation by Jackson, Judge Sabo sua sponte produced at the PCRA hearing Jackson's fee petition which showed that Jackson did indeed know how to secure funds. (FF 79) What Judge Sabo fails to reveal, however, is that Jackson never claimed that he did not know how to petition for the base funding that the Philadelphia court system readily authorizes; Jackson's difficulties concerned his ignorance of, and cynicism towards, securing interim funding beyond the readily authorized base funding. Indeed, one need only look at the record of an early court appearance where Jackson expresses confusion over securing interim payments for experts which he claims he needs for their retention. (1/20/82 Tr. 41) Three months later, Jackson again seeks advice on how to secure interim funding. (4/29/82 Tr. 12) Two weeks after that, the issue of interim funding comes up again. (5/13/82 Tr. 15-16) Thus, the contemporaneous record bears out Jackson's 1995 testimony that he was ineffective in securing interim funding beyond the base funding which he was able to secure. Jackson never claimed, as Judge Sabo finds, that he could not secure funding of any sort. By unfairly melding the issue of base funding secured at the end of a case (about which Jackson was aware) and interim funding (about which he was not), Judge Sabo paints a picture of prevarication that is manifestly unfair and outright inexcusable.

3. The unbridgeable rift between Jamal and Jackson

As noted earlier, Judge Sabo's thesis that Jamal controlled his own case banishes from its purview the extensive record of the deep and irreconcilable rift between Jamal and his unprepared counsel. The reality which Judge Sabo flouts is that Jamal struggled throughout the trial to regain control over his case, and that his loss of control led to a total breakdown in the attorney-client relationship. (See Claim 7)

Jamal decided reluctantly to proceed pro se after it became apparent that his court-appointed counsel was floundering. Jamal had heretofore endeavored to work collaboratively with Jackson, but became concerned that his life was in jeopardy if the case remained in Jackson's hands. The court granted the pro se request, and immediately appointed Jackson to serve as backup counsel. Jackson's desperate plea to withdraw from the case, and his vocal objection to assuming the role of back-up counsel, had a devastating effect on the relationship between him and Jamal.

Jackson initially told the court, "I would refuse to be backup counsel." (5/13/82 Tr. 56) He made it clear that he would not perform this role even "[i]f that requires my incarceration." (Id.) When Jamal protested that Jackson had made it clear he was not in a position to help him as back-up counsel, the court disagreed, noting that Jackson never made such a representation. Jackson immediately interjected, stating unambiguously on the record that he was unwilling to provide assistance. (Id. at 63) Jackson went on to say: "I am not concerned right now, for the sake of discussion with Mr. Jamal's rights. Mr. Jamal has his rights. I am talking about my rights. I have a right to pick and choose which appointments I will provide to the Court." Jackson thus made it clear that he was placing his own interests (his own "rights") above that of Jamal's. This conflict of interest was never resolved by the trial court, and the reverberations from that failure by the trial court were felt throughout the trial (most notably in the ensuing decision by the trial court to banish Jamal from much of the trial proceedings).

After hearing that Jackson was focusing on his own "rights," Jamal expressed his reservations to the Court:

"My point is that if I have a court appointed counsel assigned as backup counsel, who has express[ed] his inability to function in that role, then our relationship is compromised. My ability to depend on his resources is compromised." (Id.)

Jackson repeatedly urged the court to permit him to withdraw as counsel, noting Jamal's adamant desire to represent himself, his refusal to cooperate with -- and indeed, even to talk to -- Jackson, and the constant fighting between the two. Jackson was so disheartened with the prospect of defending Jamal he told the trial court, in an in camera conference on June 18th: "I don't think there is any defense." (6/18/82 Tr. 2.30) Jackson never realized, due to his lack of dedication to the case, that the prosecution's theory of the case was highly vulnerable to attack and that the defense theory of case was supported by a compelling array of evidence.

Jackson, in urging the court to permit him to withdraw, argued that he did not have "the cooperation of [Jamal]" and that "to force me to remain in this situation where Mr. Jamal has said in no uncertain terms that he doesn't want me puts me in a position of trying to force advice on someone who doesn't want that advice." Jackson bluntly, and accurately, remarked: "[Jamal] has no faith in anything I say." (6/17/82, Tr. 1.65-66)

Although confronted with Jamal's demands to remove Jackson as counsel and to reinstate himself as pro se counsel, the court refused to deal meaningfully with the matter. Rather than probe into the underlying difficulties and determine with conscientious concern whether Jamal's rights were being protected, the court resorted immediately to threats -- threats which escalated to the actual removal of Jamal from significant portions of the trial.

While never grappling with this irrefutable record, Judge Sabo makes the conclusory finding that Jackson kept Jamal "fully informed" during those lengthy periods where Jamal sat in a jail cell as the trial progressed without him. (FF 11) Judge Sabo's FF 11 is pure fiction. Jackson made it clear to Judge Sabo that Jamal and he were constantly fighting during the times when the court was not in session. He described how Jamal's trial strategy differed markedly from his own. He also told the court that Jamal refused to participate on the terms set by the court; that is, Jamal refused to consult with, and assist, attorney Jackson. (6/17/82 Tr. 1.64; see also Id. at 1.59-1.116)

The upshot to this state of affairs is clear: this utter breakdown in the attorney-client relationship -- which was brought about by the court's unwillingness to permit Jamal to proceed pro se -- tainted the entire trial. Jackson's performance during the trial revealed lack of preparation, poor exercise of judgment, and an overall inability to place the prosecution's case within the crucible of meaningful adversarial testing. [65]

D. The Need For A Defense Investigator Before Trial (Claim 8)

It is uncontested that the addresses and phone numbers of witnesses were redacted from the witness statements the District Attorney provided to the defense. (7/27/95 Tr. 53) Given the defense's limited resources, the witnesses were almost exclusively within the control of the Commonwealth. (7/28/95 Tr. 149-50) The defense was thus largely reliant on the District Attorney for access to the witnesses. (7/27/95 Tr. 53)

It is also undisputed that, when Jackson requested to speak to the witnesses, prosecutor McGill often attempted to dissuade him from performing that elementary act of trial preparation. (7/27/95 Tr. 53-54) Although he considered it important to interview the witnesses who observed various facets of the incident, particularly in view of the fact that several of them saw a fleeing person, Jackson was hampered in doing so. (7/28/95 Tr. 149-50) With no address or phone number, Jackson could not locate these witnesses on his own. (See, e.g., 6/30/82 Tr. 14) He thus sought to obtain the services of an investigator. (7/27/95 Tr. 61) [66] Although the police had conducted numerous interviews in December 1981, it was not until January 20, 1982, five weeks after the shooting, that the court authorized the funds to permit Jackson to retain an investigator. (Id. at 61-63)

Judge Sabo wrongly concludes that the defense investigator, Robert Greer, "had no difficulty in locating the witnesses Mr. Jackson asked him to find." (FF 141) Whereas the police conducted over 150 witness interviews (6/27/95 Tr. 63), Greer was able to locate and interview only two witnesses. The record, far from bearing out the accuracy of Judge Sabo's finding, actually reveals that Greer was able to locate those two witnesses because their addresses had inadvertently been left on their police reports. (Id. at 180) Greer stopped working on the case before trial because the Philadelphia court system approved a mere $150 in fees, an amount Greer deemed to be insufficient. (8/1/95 Tr. 174) [67]

Judge Sabo's factfinding ignores the manner in which the prosecutor exploited this state of affairs concerning the defense's inability to track down witnesses. Although he had refused to provide addresses and phone numbers of witnesses to the defense, prosecutor McGill misled the jury by suggesting that the defense had a fair opportunity to perform its own investigation to undercut the investigatory results of law enforcement:

[F]ifty-seven statements all given to the defense, with one hundred and twenty-five other statements all given to the defense, with all sorts of medical reports and ballistic reports and chemical reports and property receipts and all physical evidence. . . . all that was presented to them over that period of time you saw what they put on. (7/1/82 Tr. 171)

E. The Need For A Ballistician And A Pathologist (Claim 8)

In a case that the Commonwealth characterizes as "probably one of the biggest events in the criminal justice system in the city of Philadelphia for a quarter of a century," (7/28/95 Tr. 58-59), an unwilling and unprepared defense attorney forged through the trial without meaningful assistance from necessary experts. (7/31/95 Tr. 120-23) As the Petition alleges, that assistance was critical to refuting the prosecution theory of what happened at the crime scene.

The record reflects that, in total, the defense ultimately received court approval for about $1,350 for the services of experts to assist the defense investigation in this case. Investigator Greer received approximately $560. (7/28/95 Tr. 12, 30) The ballistician, George Fassnacht, received approximately $350. (Id. at 12-13) A photographer received approximately $450. (Id.) Attorney Jackson, himself strapped for cash, considered these to be "extremely adverse circumstances" in which to try a case. (7/31/95 Tr. 123) He was "like a boxer in a ring with both arms tied behind your back doing your best to bite your opponent." (Id.) Jackson's fee petition, in which he was reimbursed for the minimal funds approved for experts, was not paid until July 1984, more than two years after the trial. (7/31/95 Tr. 165-66)

Judge Sabo's factfinding does not counter these facts, [68] but simply avers in conclusory fashion that attorney Jackson was falsely claiming that he was hampered by insufficient resources in order to "create an appellate issue for his client." (FF 25) No citation to the record supports this conclusory assertion.

1. The ballistics evidence

The prosecution's case against Jamal included the scientific claim that the bullet removed from the deceased's head wound was "consistent" with Jamal's .38 calibre Charter Arms revolver. (See Answer to PCRA Petition at 6-7) To refute this claim, or to at least place that claim within its proper context, attorney Jackson sought to retain an expert ballistician. (7/27/95 Tr. 60)

There is no dispute that George Fassnacht, the intended ballistician contacted by attorney Jackson, was a qualified expert in ballistics and firearms forensics. (8/2/95 Tr. 48-49) Judge Sabo correctly found that Fassnacht did not examine the police ballistics reports, did not examine the physical ballistics evidence, did not prepare any written report, and did not testify. (Id. at 49- 50) (FF 44) What Judge Sabo's factfinding ignores is that Fassnacht did not provide any of these forensic services for the defense because Jackson was not able to obtain prior court approval for his fees. (8/2/95 Tr. 50; 7/27/95 Tr. 59-60) Some time thereafter, Fassnacht refused to take on court-appointments in Philadelphia cases because, in his experience, the Philadelphia courts "either wouldn't pay sufficiently, would arbitrarily slash the bill in half, or make you wait one, two years for payment." (8/2/95 Tr. 51) In Fassnacht's words, the payment rules at that time were "arbitrary and capricious." (Id. at 98) Without any evidentiary basis, Judge Sabo "completely rejected" Fassnacht's testimony as "absurd." (FF 147)

In 1994, PCRA counsel contacted Fassnacht and, for the first time, he reviewed the police ballistics reports as well as the 1982 trial testimony of prosecution witnesses Dr. Tumosa and Anthony Paul. (8/2/95 Tr. 56) The purpose of this review was to determine whether there was forensic work which should have been rendered to the defense that was not accomplished at the time of the trial. (Id. at 57)

The most relevant conclusions arising from Fassnacht's review of the evidentiary record are simply ignored in Judge Sabo's Findings of Fact. First, he found that there were no reports as to whether Jamal's gun had been tested to determine if it had recently been fired, which is astounding in view of the serious nature of the crime, the ease with which crime scene investigators can perform such tests, and the routine practice by law enforcement to do so. (Id. at 57-58) So astounding is the absence of such reports - particularly in view of the numerous other more cumbersome tests conducted through evidence collection at the crime scene (6/19/82 Tr. 42-61), including a lead residue test on a wall and on the deceased's tie (Id. at 71) - that the only rational inference to be drawn is that the test results by crime scene investigators were suppressed as unhelpful to the prosecution's theory of guilt. [69] Second, Fassnacht determined that the bullet which was removed from the deceased should have been reviewed to determine if there were markings on it which would identify or exclude Mr. Jamal's gun as the weapon which fired the bullet. (Id. at 57-58) Third, he found there was no report indicating that crime scene investigators tested Jamal's hands to determine if he had in fact fired a firearm. (Id. at 58) The absence of a report reflecting the performance of this routine crime scene test also raises the inference that the test results were unhelpful to the prosecution. [70]

Moreover, Fassnacht would have also been helpful in countering certain opinions expressed by Tumosa and Paul. (Id.) Fassnacht would have testified that there was an internal contradiction in the police ballistics report. On the one hand, the police ballistics report maintained that the general rifling characteristics of the bullet specimen removed from the deceased were "indeterminable"; yet it also characterized one of the general rifling characteristics as a "right-hand direction of twist." (Id. at 59-60) This contradiction was also present in the 1982 testimony of witness Paul. (Id. at 60-61)

Moreover, Paul stated it was impossible to establish that the bullet removed from the deceased was fired from a particular gun. (Id. at 61) However, in apparent contradiction to that testimony, Paul testified that the general rifling characteristics were "consistent" with a Charter Arms revolver such as the one owned by Jamal. (Id.) Further, Paul testified that the specification of eight lands and grooves was somehow connected to the bullet and was also consistent with the Charter Arms revolver. However, there was no finding in the ballistics report that the bullet removed from the deceased had eight lands and grooves. (Id. at 61-62) Fassnacht could have corrected the record for the jury, and thus blunted the impact of the prosecution's flawed suggestion that scientific evidence linked Jamal to the shooting. (Id. at 62) None of these facts receive any meaningful attention within Judge Sabo's Findings of Fact.

Fassnacht further testified that additional tests should have been performed to determine with greater precision the rifling characteristics of the bullet so as to identify or exclude Jamal's gun as the one that fired the bullet. (Id. at 62-63) The investigatory paper trail suggests that such tests were performed. (Id.) The upshot to Fassnacht's review is as simple as it is potent: the investigatory record simply provides an inadequate basis for concluding that the rifling characteristics on the bullet are "consistent" with Jamal's gun. (Id. at 64-65) The jury should have learned from a defense ballistician that the investigatory record narrowed the range of hand-held firearms that are consistent with the bullet removed from the deceased to that of many millions of guns -- roughly half the guns made as of that time period. (Id. at 65) This facet of Fassnacht's testimony also received no meaningful attention from Judge Sabo.

Finally, Fassnacht could have diminished the reliability of the prosecution's post-mortem evidence. The Medical Examiner, Dr. Paul Hoyer, reported finding an additional bullet fragment, and took its measurements as 10 by 3 by 2 millimeters. (Id. at 75-76; 8/4/95 Tr. 40-42; 8/9/95 Tr. 151) Hoyer testified that he normally derived such measurements through use of a millimeter ruler. (8/9/95 Tr. 199) According to Fassnacht (and also Hoyer) the normal procedure would be to preserve such a fragment. (8/2/95 Tr. 76; 8/9/95 Tr. 200) However, this fragment was not identified or even mentioned in any of the ballistics reports. (8/2/95 Tr. 75-77) The absence of the fragment could affect the ability to determine the calibre of the bullet. (Id. at 77) A medical examiner could use a radiograph to detect further bullet fragments in the deceased's body. (Id. at 81-82) That equipment was available in the Philadelphia medical examiner's officer in 1981 but apparently was not used in this case. (8/9/95 Tr. 150, 168-69)

While ignoring the critical thrust of Fassnacht's testimony, Judge Sabo rejected his expert opinion that a ballistician would have been beneficial to the defense for the reasons noted above. (Id. at 58-59) Instead, Judge Sabo seized upon the irrelevant fact that Fassnacht had not performed any ballistics tests himself in this case. (FF145-46) Judge Sabo simply omits mention of Fassnacht's testimony that he had not tested the ballistics evidence himself because it would be unethical for an expert to make a determination whether to perform a test if that same expert stood to gain financially by having the test performed. (8/2/95 Tr. 151-53) In view of Fassnacht's ethical qualms, the defense sought to test the ballistic evidence in an independent laboratory. The Commonwealth objected. Before Jamal's counsel could raise this issue at the end of the hearing, the Court precluded any further discussion of evidentiary issues and threatened counsel with contempt, fines, and arrest. (8/15/95 Tr. 45)

2. The medical evidence

In 1982 the defense also attempted to obtain the services of a pathologist to assist in the defense. (7/27/95 Tr. 59) Jamal petitioned the trial court for funds to hire a pathologist, only to receive authorization for $150. (Id.) Attorney Jackson contacted five or six pathologists, but none would assist the defense under such financial constraints. (Id. at 59-60) The best the defense could do with this authorization of $150 was to retain a medical expert to review the written medical reports and discussed them in a phone conversation. (7/28/95 Tr. 26-27)

Judge Sabo concludes that a pathologist would have been useless at trial, and on that basis dismissed the PCRA evidence on this issue as inconsequential. (FF 191) The record, however, shows that a pathologist would have had a devastatingly favorable impact for the defense at trial. As the Petition explains, the prosecution's trial theory was that Jamal was shot by P.O. Faulkner as he (Faulkner) was falling to the ground. This theory of what happened during the crime derived from the testimony of key prosecution witness Cynthia White. As noted earlier, suppressed evidence indicates that White was subjected to police manipulation before providing her eyewitness testimony at trial. A pathologist would have sealed the point, showing that the prosecution's theory, rooted in White's testimony, was physically impossible. Judge Sabo dismissed this fact by finding, contrary to the evidentiary record, that the above-noted scenario was a concoction by the defense. (FF 190) Therefore, Judge Sabo reasoned, a pathologist's testimony would have been useless. (FF 191)

The PCRA record reveals the following. Dr. John Hayes, M. D., an associate city medical examiner from New York City, testified at the PCRA hearing. (8/4/95 Tr. 8, 15) According to Hayes, Jamal suffered a gunshot wound in the right chest just below the right nipple, and the bullet traveled in a straight line, backward and downward through his right lung, his diaphragm muscle, the right side of the liver, striking the twelfth rib, and ending up between the twelfth vertebrae of the spine and the first lumbar vertebrae, on the back, left-hand side. (Id. at 15-16)

In Dr. Hayes' uncontested opinion, the gunshot causing Jamal's wound had to have been angled downward toward Jamal (assuming, as the prosecution does, that Jamal was standing upright when shot). (Id. at18) This downward angling of the gunshot was inconsistent with the prosecution theory at trial that a standing Jamal was shot by a falling Officer Faulkner. (Id. at 18-19) No finagling of the record can alter that fundamental fact. Judge Sabo's finding that Hayes's opinions are flawed because they are built upon a scenario concocted by the defense is simply wrong. The Commonwealth has never wavered from the theory that P.O. Faulkner received a gunshot wound in the back, was spun around by Jamal, and fired his police revolver at an upright Jamal as he was falling toward the pavement. (FF 15) Thus, Judge Sabo's dismissal of Hayes's testimony was patently unreasonable.

In fact, Judge Sabo completely overlooked the fact that the Commonwealth at trial offered its own explanation for the downward bullet trajectory, recognizing that it had the potential of undermining the credibility of its key prosecution witness (Cynthia White), and hence, the reliability of its own theory of what actually occurred at the crime scene. Specifically, the prosecutor at trial solicited speculation from an emergency room physician, Dr. Collet, to the effect that the path of the bullet might have been altered because the bullet "tumbled" or was deflected by a ricochet. (6/28/82 Tr. 28.110-11) Dr. Hayes, without rebuttal or challenge, testified that absolutely nothing in the medical records supports this "ricochet" or "tumbling" theory. (8/4/95 Tr. 20-22) [71]

Wedded to Cynthia White's seamless narrative account of the incident, Judge Sabo was committed to extinguishing the potency of Dr. Hayes's testimony. The problem, of course, is that Judge Sabo's reasoning is manifestly wrong, as Dr. Hayes's testimony was calculated to impeach the prosecution's scenario of the events at issue; he did not impeach a scenario concocted by the defense, notwithstanding Judge Sabo's finding to the contrary.

F. Ineffective Assistance of Appellate Counsel

The appointed appellate counsel in this case was Marilyn Gelb. Ms. Gelb was not available to testify in the PCRA hearings. (Tr. 7/31/95 [under seal].) Judge Sabo's factfinding concludes that appellate counsel's representation of Jamal on direct appeal was "uniformly excellent." (FF 88) This finding is totally unsupported by the record.

Jeremy Gelb, an attorney who worked closely with Ms. Gelb in researching and drafting the appeals briefs, testified. Mr. Gelb had no discussions with appellate counsel about reducing the issues raised in the appeal because of the length of the brief or for any other tactical or strategic reasons. (7/31/95 Tr. 218) Mr. Gelb did not review the record, perform any legal research, or have discussions with appellate counsel regarding any of the issues raised in Jamal's PCRA Petition, including specifically: the trial court's refusal to grant a continuance to permit Wakshul to testify (Id. at 219); the trial court's limitation on the cross-examination of Robert Chobert or the examination of Veronica Jones (Id. at 219-21); the two in camera conferences held outside Jamal's presence (Id. at 221-22); the ineffective assistance of counsel in the guilt phase (Id. at 222-23, 240-42); Jamal's loss of his right to self-representation (apart from the issue of the voir dire) (Id. at 222-23); Jamal's banishment from the trial (Id. at 223-24); the prosecution's guilt phase summation (other than the Caldwell issue) (Id. at 224-25); the trial court's handling of juror Jeannie Dawley (Id. at 225-26); the ineffective assistance of counsel in the penalty phase (Id. at 228-29); the failure to advise the jury that life imprisonment means life without parole (Id. at 229); or any other issues raised in the PCRA Petition. (Id. at 227-28)

Mr. Gelb was also aware that the Supreme Court of Pennsylvania reviews the sufficiency of the evidence in every capital case. (7/31/95 Tr. 268.) Yet, the Pennsylvania Supreme Court brief filed on Jamal's behalf in this case contained only a two paragraph discussion of the evidence. (Id. at 267) [72]

The PCRA record is not complete with respect to this claim. Jamal sought to call attorney Steven Hawkins as a witness but Judge Sabo precluded Hawkins' testimony. (8/2/95 Tr. 183-185) Hawkins was prepared to testify that appellate counsel Marilyn Gelb, who is presently unavailable to testify, conceded that she did not read the entire lower record in preparing Jamal's appeal. In fact, four volumes of pretrial proceedings, which are clearly relevant on issues concerning funding for experts and Jackson's trial preparation, had not been transcribed until PCRA counsel requested the transcription in 1995. Having blocked Jamal from presenting evidence that appellate counsel failed to read the entire lower court record, Judge Sabo unfairly issued a finding that appellate counsel did, in fact, read the entire trial record. (FF 86)

G. Ineffective Assistance In The Penalty Phase

Although the record is uncontested that Jackson did absolutely nothing to prepare for the penalty phase, Judge Sabo issued findings of fact that characterizes this total abdication of responsibility, to put it bluntly but fairly, as no big deal. According to Judge Sabo, the mitigation witnesses who testified at the PCRA hearing in 1995, presented as exemplars of what would, and could, have been presented in a competently conducted penalty phase proceeding, were not mitigation witnesses at all. (FF 90, 95, 100, 102, 109) According to Judge Sabo, the substantive testimony, which is summarized in detail in the Petition and accepted by Judge Sabo, would have been useless to a jury in considering whether to spare Jamal's life. (Id.) He arrived at this finding even though the PCRA evidence had a major impact on the attitude of the prosecution. Whereas the trial prosecutor portrayed Jamal as a political radical bent on violence, the PCRA prosecutor, after cross-examining the mitigation witnesses, became convinced that the shooting of P.O. Faulkner was not in keeping with Jamal's character. (7/28/95 Tr. 191)

Because Judge Sabo took the position that the proffered mitigation evidence would not be genuinely useful in a penalty phase hearing (a position that is not properly characterized as a finding of fact), he simply brushes aside the PCRA record as it pertains to Jackson's complete abdication of his Sixth Amendment obligations. The record is uncontested that Jackson did not prepare or present any mitigation witnesses for the penalty phase. Prior to the penalty phase hearing on July 3, 1982, Jackson had not interviewed or subpoenaed anyone for the purpose of having them testify at the hearing. (7/27/95 Tr. 41, 47) He was aware that, because Officer Faulkner was a police officer, there was an aggravating factor for purposes of the penalty phase. (Id. at 45) Yet, rather than present evidence to educate the jury about the true nature of the man upon whom they were to pass judgment, he posited the absurd argument that the deceased was not a "peace officer" within the meaning of the statute - an argument so preposterous and rank with insensitivity that it could only stoke the anger of the jury.

Jackson was given the opportunity at the PCRA hearing to explain why he did nothing to prepare for this phase of the case. Although he could not provide a definitive explanation (Id. at 47), he made it very clear that it was not a strategic or tactical decision. (7/28/95 Tr. 71, 166) He offered two possible explanations for his failure to prepare. First, he did not think that Jamal would ever be convicted of first degree murder. Second, he had been working six days a week for about two weeks on the guilt phase trial, and assumed that the trial court would provide a modest amount of time (even just an extra day) to allow for preparation for the penalty phase. (7/27/95 Tr. 45) [73]

Judge Sabo rejected Jackson's unequivocal testimony about his lack of preparation in favor of his favorite theme that Jamal was to blame. Once again, Judge Sabo issued findings to the effect that the penalty phase proceeded in a manner that Jamal dictated. Not a scintilla of evidence supports the canard that Jamal somehow retained control over the case after having been convicted of first degree murder. Jackson's testimony rejecting this proposition was no less emphatic here than it was with respect to the guilt phase. The failure to present witnesses at the penalty phase was not the result of any instructions from Jamal. (7/28/95 Tr. 170-71; 7/31/95 Tr. 98) Prior to the jury reaching its guilty verdict, attorney Jackson had no meaningful discussion at all with Jamal regarding the penalty phase of the case. (7/27/95 Tr. 41) The first and only time Jackson even spoke to Jamal about the penalty phase was in the holding cell outside the courtroom on the morning that it was to begin. (Id. at 42)

During this meeting on July 3, 1982, Jamal advised Jackson that he wanted to make a statement to the court. (Id. at 48) Jackson did not advise Jamal of any risks that might be involved in making such a statement. (Id.) Jackson did not review the statement Jamal planned to make, or even ask to review it. Prior to Jamal taking the stand in court, Jackson had no idea what Jamal intended to say. (Id.; 7/28/95 Tr. 172, 174) As the record bears out, Jamal's allocution provided the prosecution with the pretext it so dearly desired: the prosecution launched a blatantly politicized attack upon Jamal, hoping to give substance to the theme that the killing of P.O. Faulkner was an outgrowth of Jamal's political radicalism. (See Claims 22-23)

It is now undisputed that witnesses were available to testify at the 1982 penalty phase hearing who could have established what the Commonwealth itself has called the "immense talents of Mr. Jamal" and his "obviously talented journalistic voice, and his activism." (7/26/95 Tr. 98-99) Indeed, so compelling was the PCRA testimony from these mitigation witnesses, the prosecutor bluntly acknowledged in open court that: "From all the descriptions of everybody that has come here -- and they all are good people from what I can see, I believe -- I don't think that [the alleged shooting of officer Faulkner] is characteristic [of Mr. Jamal]." (Id. at191) Despite this stunning admission by the prosecutor who had the responsibility of cross-examining these witnesses, Judge Sabo concluded that they had nothing meaningful to say by way of mitigation. (FF 90, 95, 100, 102, 109) This legal conclusion simply misperceives the nature of mitigation evidence in capital litigation, and accordingly, should be rejected outright.

Furthermore, Judge Sabo arrived at this legal conclusion after precluding Jamal from presenting an expert witness who could have elucidated how capital juries treat mitigation witnesses of the sort proffered at the PCRA hearing. Specifically, Jamal sought to call Professor John Lamberth to testify as an expert witness on Philadelphia capital juror decision-making. Prof. Lamberth would have testified that, in his expert opinion, the mitigation witnesses would likely have affected the outcome of the sentencing deliberations. (8/9/95 Tr. 109-111) [74] By barring Prof. Lamberth, Judge Sabo instituted himself as the unimpeachable expert on jury reaction to proffered mitigation evidence.

II. THE AEDPA PRESUPPOSES THAT THE STATE COURT FACT-FINDER IS FAIR AND IMPARTIAL, AND THAT A STATE COURT POST-CONVICTION PETITIONER WILL HAVE A MEANINGFUL OPPORTUNITY TO BE HEARD IN A PROCEEDING WHERE THE OUTCOME IS NOT PREORDAINED

The essence of due process is a meaningful opportunity to be heard. See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976); Grannis v. Ordean, 234 U.S. 385, 394 (1914). The antithesis to due process is the conduct of a proceeding in which the outcome is preordained and the advocacy of a litigant is but a futile exercise. Furthermore, due process is a "flexible concept" which depends upon what "the particular situation demands." Mathews, 424 U.S. at 334; see Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In capital proceedings generally, the Supreme Court has demanded that factfinding procedures "aspire to a heightened standard of reliability." Ford, 477 U.S. at 411 (citing Spaziano v. Florida, 468 U.S. 447, 456 (1984)). These uncontroversial precepts to the notion of due process serve as the underpinnings and propaedeutic to the fair application of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). As shown below, Jamal never received due process in the PCRA proceedings because Judge Sabo was committed to rejecting Jamal's application for relief from the moment it was filed.

A. Judge Sabo's General Hostility Towards Capital Defendants, And His Particularly Acute Antipathy Toward Jamal, Prevented Him From Acting Impartially In The Conduct Of The PCRA Hearing And Led Him To Deny Jamal's PCRA Petition Without Any Meaningful Review

Jamal moved for the recusal of Judge Albert F. Sabo, the presiding PCRA judge, citing his well-known hostility towards capital defendants, his trenchant pro-prosecution bent, and his acute antipathy towards Jamal. Judge Sabo summarily denied the motion, stating that he "could be fair to [Jamal] at this time." (7/12/95 Tr. 81) The record reveals the opposite.

As a first observation it should be noted that Jamal's recusal motion should not have been decided by Judge Sabo, in view of the highly personal nature of the allegations made against him, many of which centered on his competence as a jurist. The very act of having Judge Sabo assess his own impartiality, where the factual bases for the recusal raised disturbing questions, at the least undermined the appearance of propriety in the state court proceedings.75

It is not irrelevant to the due process analysis to consider the events at the 1982 trial and the PCRA proceedings in order to glean the source of, as well as to gain insight into, Judge Sabo's bias. See Liteky v. United States, 510 U.S. 540, 551, 114 S.Ct. 1147 (1994)("A favorable or unfavorable predisposition can also deserve to be characterized as 'bias' or 'prejudice' because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment."). The subsection (d)(2) analysis reveals that Judge Sabo's bias and pre-litigation commitment to deny Jamal's application for PCRA relief finds full expression in his factfindings. The discussion in Part I, supra, therefore, should be considered in evaluating the broader due process grounds for setting aside the factfindings.

1. The hostilities and confrontations between Judge Sabo and Jamal

Undoubtedly, the defining moment in Jamal's trial occurred when Judge Sabo precipitously stripped him of his right to represent himself. From that moment forward, the trial descended into farce (largely because Jamal's trial counsel was thrust into a lead counsel role without any preparation) and the hostility between Judge Sabo and Jamal ripened into open courtroom confrontations - of which the prosecution took full advantage.

Jamal announced his decision to represent himself on May 13, 1982. (5/13/82 Tr. 53) As more fully discussed in the Petition and in Part I, supra, Jamal stepped into the role of pro se counsel after his court-appointed lawyer openly admitted his lack of preparation and his inadequacies in handling Jamal's case. Yet, before the midway point in jury selection, this unwilling and unprepared defense attorney was thrust back into the lead role. Tensions escalated over attorney Jackson's "hands-on" involvement in the case, and Judge Sabo repeatedly threatened to eject Jamal from the proceedings. Judge Sabo's threats of removal provoked angry outbursts by Jamal, which provoked in turn Judge Sabo's wrath.

Meanwhile, Jackson (now playing a reluctant lead counsel role) urged Judge Sabo to permit his withdrawal. (6/17/82 Tr. 63-65) Rather than consider, let alone grant, this request, Judge Sabo formally stripped Jamal of his pro se status and ordered Jackson - a lawyer who was supplanted precisely because he was unprepared and ill-equipped to handle this case, and who had not prepared at all for trial because he never expected to conduct the trial -- to retain control over the case. (6/17/82 Tr. 119-23) Jamal was not present when Judge Sabo sua sponte stripped Jamal of his pro se status for good. Thus is the record of how Jamal's attorney assumed responsibility over litigating this complex capital case. It was also the prelude to Jamal's embittered encounters with Judge Sabo throughout the trial.

Jamal repeatedly urged Judge Sabo to remove court-appointed counsel from the lead role and insisted upon his right to represent himself. He angrily accused Judge Sabo of unfairness and verbalized his belief that Judge Sabo hoped he would be convicted and sentenced to die. Judge Sabo, no less sternly, castigated Jamal for his vociferousness and frequently taunted him. For example, when Judge Sabo refused to grant the defense additional time to secure the attendance of P.O. Gary Wakshul (a vital witness on the issue of the confession), he told Jamal that "you and your attorney goofed." (7/1/82 Tr. 48) This was a particularly cruel remark, as Judge Sabo knew full well that Jamal had been protesting defense counsel's involvement in the case precisely because he was unprepared. Yet, Judge Sabo seemingly relished the fact that defense counsel had "goofed" and Jamal would likely pay with his life.

Jamal sat in a jail cell while over half of the trial proceeded without him. This was particularly devastating, as Judge Sabo surely knew, inasmuch as Jamal had prepared his own case for trial and defense counsel, upon the assurances of Judge Sabo himself (6/1/82 Tr. 5), did nothing while serving as back-up counsel. When it came time for Jamal to decide whether to testify in his own behalf, Jamal explained his decision to forego that right:

My answer is that I have been told from the duration of this trial, the beginning of the trial, the inception of the trial, that I had a number of constitutional rights. Chiefly among them the right to represent myself. The right to select a jury of my peers. The right to face witnesses and examine them based on information they have given. Those rights were taken from me. It seems the only right that this judge and the members of the court want to confer is my right to take the stand, which is no right at all. I want all of my rights, not some of them. I don't want it piecemeal, I want my right to represent myself and I want my right to make closing argument. I want my rights in this courtroom because my life is on the line . . . . (7/1/82 Tr. 41)

During the penalty phase, his patience worn thin, Jamal called Judge Sabo a "black-robed conspirator . . . who deserves no honor from me or anyone else in this courtroom . . . because he is an executioner, because he is a hangman." (7/3/82 Tr. 11-12) After being formally sentenced to death in 1983, and upon being removed for the final time from Judge Sabo's courtroom (until the filing of the PCRA petition), Jamal angrily yelled an obscenity at Judge Sabo. (7/25/83 Tr. 168)

The heated confrontations between Judge Sabo and Jamal, culminating in Jamal's frustrated and ill-tempered outbursts, so poisoned the interactions between the two that fairness and the appearance of impartiality dictated that Judge Sabo step aside during the post-conviction stage of the case. See Taylor v. Hayes, 418 U.S. 488, 501 (1974); Withrow v. Larkin, 421 U.S. 35, 47 (1975)(even the "probability of prejudice on the part of the judge . . . is too high to be constitutionally tolerable"); In Re Murchison, 349 U.S. 133, 136 (1955)("every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused denies the latter due process of law")(citing Turney v. Ohio, 273 U.S. 510 532 (1927)). This poisoned atmosphere undoubtedly lingered long after Jamal was sentenced to die, as Judge Sabo's conduct during the PCRA proceedings bespoke the same hostility and bias that germinated and then erupted in the 1982 trial. (See II.B., infra)

2. The public record concerning Judge Sabo's pro-prosecution bias

The public record pertaining to Judge Sabo's pro-prosecution bias sheds light on his in-court behavior in Jamal's 1982 trial. In Jamal's recusal motion, Jamal was prepared to call as witnesses respected members of the Philadelphia criminal defense bar, many of whom were former prosecutors, to establish that Judge Sabo is regarded as a "prosecutor in robes" who is notorious for "assisting the prosecution in the course of trial." A judicial colleague referred to proceedings before Judge Sabo as a "vacation for prosecutors."

Seven defense attorneys - six of whom were former prosecutors - were prepared to testify that they "regard Judge Sabo as uniformly biased against defendants, and therefore unable to accord the accused . . . a fair and impartial trial." Judge Sabo's reversal rate in capital cases alone substantiates the overarching point that he is indeed reckless in his pro-prosecution rulings. According to the prestigious Pennsylvania Capital Resource Center in Philadelphia, a total of 11 cases presided over by Judge Sabo have had been partially or totally reversed on appeal. No other judge sitting in Pennsylvania has had an equivalent percentage of capital cases reversed; and, on information and belief, no other judge in the United States competes with Judge Sabo for this dubious distinction. A cursory review of some of these cases is instructive:

* In Commonwealth v. Crenshaw, 470 451 (1983) Judge Sabo was reversed for applying a 1978 death penalty statute to a 1976 homicide.

* In Commonwealth v. Murphy, 591 A2d 278 (1991) Judge Sabo was reversed for barring defense counsel from cross-examining a prosecution witness for bias on the basis of his juvenile probationary status in violation of the U.S. Supreme Court's holding in Davis v. Alaska.

* In Commonwealth v. Bryant, 611 A2d 703 (1992) Judge Sabo was reversed for permitting the prosecution to introduce evidence of a prior crime when "the factual predicates were not so distinctly similar."

* In Commonwealth v. Fried, 555 A2d 119 (1989) Judge Sabo was reversed for giving an erroneous instruction that lessened the burden for the prosecution.

* In Commonwealth v. Beck, 402 A2d 1371 (1979) Judge Sabo was reversed for excluding evidence of the victim's prior conviction for assault and battery and an eye-witness account of another violent episode where the accused claimed self-defense as a defense. [76]

Judge Sabo's record in handling PCRA matters also signaled trouble for Jamal as he filed his PCRA petition. In Commonwealth v. Fahy, 645 A2d 1175 (1994), Judge Sabo dismissed a death row inmate's petition for post-conviction relief after the attorney who Judge Sabo appointed failed to file a single document in support of the petition. Although affirmed on appeal Judge Sabo's later action in dismissing a post-trial motion was so egregious that the Attorney General of Pennsylvania confessed error before the Pennsylvania Supreme Court. In Commonwealth v. Baker, 511 A2d 777 (1986), Judge Sabo dismissed a capital post-trial motion following a quarrel with counsel over the labeling of papers. The case was remanded so the merits of the motion could be addressed.

Judge Sabo's flagrant bias has been the subject of investigative reporting and commentary by knowledgeable court watchers. Reporter Frederic N. Tulsky of the Philadelphia Inquirer examined the trial records of thirty five of Judge Sabo's cases and concluded that he is a "defendant's nightmare." (Exh. A) According to Tulsky, "[d]efense lawyers, judges and prosecutors" all agreed that Judge Sabo "ran trials differently from most judges." (Id.)

Judge Sabo's record as a jurist has also been noted for its palpable racial overtones. Court-watcher and Dusquesne law professor Bruce Ledewitz characterized Judge Sabo's record as a presiding jurist over capital cases, in terms of race, as "unacceptable in the worst Southern death-belt states . . . ." (Exh. B) [77] The Washington-based Death Penalty Information Center identified Judge Sabo as a jurist provoking particular concern. In its publication, Justice on the Cheap: The Philadelphia Story, Judge Sabo's death-penalty record is highlighted to exemplify the destructive influence of race in the implementation of Pennsylvania's death penalty. (Exh. C) [78]

The Philadelphia Inquirer ran another story, approximately a year after Jamal's trial, that indicated that one-third of the attorneys who participated in a survey rated Judge Sabo as "unqualified." (Exh. D) The relevance of this anecdote, however, is not only in the survey results, but also in Judge Sabo's unguarded response to them. Judge Sabo remarked, upon hearing of the results, that if he were a defense attorney, "I wouldn't vote for me either." (Id.)

Judge Sabo's background also provides insight into his pro-prosecution bias and his unique unfitness to preside over a high-profile capital case involving the killing of a police officer. For sixteen years prior to becoming a Common Pleas judge, Judge Sabo served as the Under-Sheriff of Philadelphia County. He was a long-standing member of the Fraternal Order of the Police (which is a major lobbying organization dedicated to seeing the execution of Jamal carried out), the National Sheriff's Association and the Police Chief's Association of Southeast Pennsylvania.

B. Judge Sabo's Handling of The PCRA Proceedings

As noted above, Judge Sabo summarily rejected Jamal's recusal motion. Yet Jamal's concerns over the judge's ability to be fair and impartial proved to be justified. [79] During the PCRA hearings the Court openly remarked "I am, sure, real biased" against the defense and that "anyone on the liberal end of the stick" would agree that he was biased. (8/2/95 Tr. 34; 8/10/95 Tr. 36)

The evil of bias and impartiality is that the outcome of a dispute or contest is pre-ordained. Bias and impartiality render the activities within a proceeding pointless. Bias and impartiality may preserve the trappings of due process, giving a proceeding the patina of fairness; but it suffocates the substance of due process and mocks justice while cynically gesturing at it. The evil of bias and impartiality, predicted in Jamal's recusal motion, reared its head in the PCRA proceeding, often in undisguised form. On numerous occasions, Judge Sabo let it be known that the PCRA proceeding was nothing more than a vain preamble to federal habeas review. Judge Sabo alerted PCRA counsel that Jamal would fail in his efforts at securing post-conviction relief by advising them that the matter "is on automatic appeal to the Supreme Court. They will review your objections." (7/28/95 Tr. 5; 8/7/95 Tr. 64) Judge Sabo went on to observe that "from there you are going into Federal Court" - a course of action that presupposed the denial of the PCRA petition. (8/7/95 Tr. 47) After finally granting a stay of execution, the court ominously told Jamal's courtroom supporters "don't be too happy, because that's only for this one" (referring to the PCRA proceedings only, thus noting that there would necessarily be a federal habeas proceeding). (Id. at 48) Having already decided that Jamal would have to set his sights on federal habeas review, Judge Sabo dedicated himself to giving Jamal the trappings of due process (and at that he even failed) while ensuring that the substance of due process was squelched with factfindings and legal conclusions which are calculated, so far as possible, to insulate Jamal's conviction and sentence from federal court review.

A key tactic in undercutting Jamal's attempt to create a record for federal habeas review (which was the only purpose behind the PCRA proceedings, in view of Judge Sabo's undisguised bias and hostility) was Judge Sabo's insistence on rushing through the presentation of proof. Judge Sabo repeatedly and without warrant castigated Jamal's attorneys, routinely issuing threats of contempt, and ultimately incarcerating one and fining another. He quashed defense subpoenas at the behest of the Commonwealth, taking no regard for the underlying equities involved. Virtually every single defense objection was overruled and every single Commonwealth objection sustained -- logic, consistency, and the rules of evidence mattered not at all. It is thus not surprising that his Findings of Fact and Conclusions of Law replicate the submissions by the Commonwealth and are fraught with blatant contradictions, inaccuracies, and unsupported conclusions. [80]

The haste in which the PCRA proceedings was conducted emanated directly from another outrageous abridgment of Jamal's constitutional rights -- the intentional interception of confidential attorney-client communiques which contained information concerning the intent of Jamal's attorneys to file a PCRA petition and their assessment of the various claims that could be raised. By virtue of this intrusion into Jamal's privileged communications, state authorities, including the Office of the Governor of Pennsylvania, was aware of Jamal's intention of filing his PCRA petition by June 5, 1995. On June 1, 1995, armed with privileged information derived from the intercepted privileged correspondence, Governor Thomas Ridge signed a warrant for Jamal's execution, scheduling it for August 17, 1995. This preemptive strike against Jamal's collateral attack on his conviction and sentence was calculated to justify a hastily-conducted evidentiary hearing. Judge Sabo established a draconian hearing schedule using as a pretext the existence of the August 17th execution date. Judge Sabo rebuffed Jamal's efforts to secure more time to prepare for the evidentiary hearing. Judge Sabo's haste in launching the evidentiary hearing was particularly obvious in that the prosecution had not yet answered Jamal's PCRA Petition and accompanying motions, and that four separate pretrial transcripts were still to be transcribed. [81] During the evidentiary hearing, Judge Sabo rushed counsel to proceed faster so as to meet the artificially created execution deadline. [82]

1. Judge Sabo's display of bias and hostility at the PCRA hearing

Judge Sabo's hostility and unfairness were undisguised. Journalists, both local and national, publicized the rank unfairness of the proceedings. The Philadelphia Inquirer observed: "The behavior of the judge was disturbing the first time around -- and in hearings last week he did not give the impression to those in the courtroom of fair-mindedness. Instead, he gave the impression, damaging in the extreme, of undue haste and hostility toward the defense's case." (July 16, 1995, p. E6.) [83] A front page headline in the Philadelphia Daily News on July 19, 1995, put it bluntly: "Sabo Must Go." The New York Times, noting that Judge Sabo "has sent more people to death row than any judge in the state," cited actual courtroom occurrences at the PCRA hearing to illustrate that Judge Sabo "has been openly contemptuous of the defense." (July 30, 1995, p. A24.) [84]

Legal commentator Stuart Taylor, writing for the American Lawyer, was shocked by the way Judge Sabo conducted the PCRA hearing, observing that he "flaunted his bias, oozing partiality toward the prosecution and crudely seeking to bully Weinglass, whose courtroom conduct was as correct as Sabo's was crass." (December 1995, p. 84.) That journal, which is not known for hyperbole, especially when it comes to criticisms of the judiciary, faulted Judge Sabo for barring Jamal from presenting witnesses and for "sharply restrict[ing] Jamal's lawyers in their questioning of witnesses, and block[ing] them from making offers of proof on the record to show the import of the precluded testimony." Id. The documentary record before this Court lends credence to these and other observations by impartial courtroom observers.

To begin with, a post-conviction hearing is not fair if it is ordered without "proper advance notice to muster all possible favorable information." Williams v. Maggio, 730 F.2d 1048, 1049 (5th Cir. 1984) (remanding for federal habeas hearing because petitioner did not receive a fair state court post-conviction hearing). As noted above, Judge Sabo did not "schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation," as required by Pa. R. Cr. P. 1508(a). Instead, it rushed Jamal to present his case "immediately" on just two court days notice. (8/7/95 Tr. 40) The Commonwealth and the trial court used this expedited schedule to hamper Jamal's presentation. See Demosthenes v. Baal, 495 U.S. 731, 734 (1990)(Brennan, J., dissenting)("Because the proceedings in this case have been so hurried, it is not at all clear that the state hearing was 'full and fair'"). [85]

A central strategy deployed by the judge to defeat judicial review was to block Jamal's proffer of evidence and then to cite the resulting absence of evidence as proof of Jamal's inability to prove his constitutional claims. A striking example of this can be found in Judge Sabo's handling of Jamal's claim that prosecution witness Chobert had an unrevealed economic incentive to favor the prosecution. (See Part I.A.2, supra) The court barred Jamal from showing that Chobert's statements to investigators immediately after the shooting supported the defense contentions that Jamal was not the shooter and that the true shooter fled the scene. (8/15/95 Tr. 25-27) By doing so, Judge Sabo was free to conclude, unencumbered by irrefutable contrary evidence, that Chobert's trial testimony harmonized with his pretrial statements. (COL 84.) [86]

Judge Sabo's efforts to defeat Jamal's constitutional claims were often more brazen. He quashed subpoenas, knowing that without the subpoenaed witnesses Jamal would be hampered in his effort to substantiate his PCRA claims. Subpoenas for P.O. Gary Bell and other officers who were in a position to hear an alleged confession by Jamal were quashed. (8/2/95 Tr. 239) Jamal could not prove that three jurors, during the course of the trial, secretly deliberated in a hotel room situated next to that of juror Savannah Davis. The subpoena for Savannah Davis was quashed. (8/7/95 Tr. 10; FF 48.) Indeed, one of Jamal's lawyers was incarcerated for attempting to explain why the subpoena for the state court administrator was necessary. By quashing that subpoena, Judge Sabo precluded proof substantiating Jamal's claim that geographic and racial disparities plague Pennsylvania's death penalty. The court also adamantly refused to permit proof of longstanding animosity toward Jamal on the part of the Philadelphia police based on Jamal's former Black Panther Party membership and more recent journalistic activity which was frequently critical of police brutality. (Compare COL ¶ 19 and 8/7/95 Tr. 23-35, 55, 60-62; 8/11/95 Tr. 38-40)

Judge Sabo's findings are laden with blatant inaccuracies. For example, in FF 218, Judge Sabo finds that Jamal "offered no evidence whatever" to establish that appellate counsel "failed to order the transcripts of several pretrial proceedings." The record of the hearing is crystal clear that pretrial minutes were transcribed for the first time while the hearing was taking place, and those minutes were delivered to the court immediately after being transcribed. (7/14/95 Tr. 16-17, 8/7/95 Tr. 85, 8/11/95 Tr. 23-24.)87 In FF 147, the court rejects as "absurd" that ballistician Fassnacht was unavailable due to lack of funds. No citation to the record is provided, for the record is unrebutted from two sources that Fassnacht was, indeed, never retained to testify due to Jackson's inability to pay his fee. (8/2/95 Tr. 50, 7/27/95 Tr. 59-60) The court also misstates the record on the pivotal issue of the fleeing shooter. Judge Sabo, in FF 181, states that witness Kordansky's testimony "is consistent with the runner going toward the scene of the murder and not away." He makes a similar finding with respect to witness Hightower. (FF 163) The unrebutted fact is that Kordansky, Hightower, and three other witnesses told law enforcement, immediately after the shooting, that they had seen someone running east on the south side of Locust St. in the direction of a darkened alleyway. (6/28/82 Tr. 126-27; 8/3/95 Tr. 238; 6/1/82 Tr. 70) These are only examples to illustrate the unreliable nature of Judge Sabo's factfinding. The discussion in Part I, supra, of course, provides the full explication of Petitioner's analysis of Judge Sabo's factfinding.

2. Judge Sabo's "bitter, running controversy" with Jamal mandates reassessment of the factfinding

That difficulties would arise from Judge Sabo's involvement in this post-conviction proceeding was foreshadowed by his adversarial relationship with Jamal in 1982. This PCRA proceeding, therefore, provided one of the clearest situations requiring recusal -- a judge who has been embroiled in a "running, bitter controversy" with a party in prior proceedings. Com. v. Stevenson, 393 A.2d 386, 394 (1978); Mayberry v. Pennsylvania, 400 U.S. 455 (1971). [88] The court's own fact findings describe the court's view that there was such a "running" controversy throughout the 1982 trial: "Petitioner refused to cooperate with this court or follow proper courtroom procedures. He constantly insulted this court, yelled, used foul language, ridiculed his counsel, and acted belligerently. . . ." (FF 8; emphasis added.) [89] Judge Sabo's distaste for Jamal, and his lingering bitterness over his "insults," "ridicule," and "belligerence," undeniably provoked the court's maltreatment of Jamal's PCRA counsel and infected his findings, particularly on Jamal's Sixth Amendment claims. Judge Sabo, predisposed to conclude that Jamal had "controlled" the trial proceedings, sua sponte placed on the record those instances when defense counsel consulted with Jamal during the hearing. To illustrate:

THE COURT: I want the record to indicate that the attorneys are having a discussion with Mr. Jamal. I don't know. I don't know. Will you proceed or do you want to get your direction first? (Tr. 8/3/95: 161; emphasis added.)

* * *

THE COURT: Let the record show Counsel are conferring with the Defendant Mumia Abu-Jamal. Has the Defendant made up his mind for you, Counselor? (Tr. 8/10/95: 18; emphasis added.)

With such a fixed predisposition -- indeed, an obsession -- Judge Sabo simply could not fairly judge the credibility of Jamal's trial counsel, Anthony Jackson, who was as clear as he was insistent that "Mr. Jamal was not dictating anything to me." (7/27/95 Tr. 139-41; 7/31/95 Tr. 97-98) Judge Sabo nonetheless insisted that Jamal had no Sixth Amendment claim because "my memory of the case is Mr. Jamal was running the case." (8/1/95 Tr. 130; see, e.g., FF 69, 77, COL ¶¶ 67-69 (Jamal exercised "personal control" over trial strategy).) Judge Sabo admitted that this was based on his recollection, not the record. This reliance upon personal recollection, even in the face of clear contradictory testimony, highlights the tendentious quality of Judge Sabo's fact-finding and the futility in presenting evidence in the PCRA proceeding. It also establishes that, as a matter of law, Judge Sabo's findings of fact on Jamal's ineffective assistance claims must be set aside and an independent evidentiary hearing may be warranted should this Court wish to evaluate trial counsel Jackson's demeanor first hand. See Anderson v. Jones, 743 F.2d 306, 308 (5th Cir. 1984); Tyler v. Swenson, 427 F.2d 412 (8th Cir. 1970).

Another indication of bias rested with the court's allegiance to the Fraternal Order of Police ("FOP"). Judge Sabo, formerly undersheriff for sixteen years, was a retired FOP member. Those ties had an unusual impact in this case, because for years that group has actively lobbied for Jamal's execution. Even during the proceedings, the FOP demonstrated for Jamal's execution. The courtroom audience was split -- one side filled with Jamal's family and supporters, the other with FOP members. The court openly sided with the FOP members against Jamal's supporters. Most appallingly, the court not only permitted but encouraged off-duty FOP members to carry loaded firearms in court, stating the FOP "are in here for my protection. . . . I consider the police officers for my protection in this Courtroom." (7/31/95 Tr. 56-57.) [90]

Further, issues of police misconduct and police credibility permeate this case, and the judge's FOP allegiance inspired his biased findings on these issues. For example, the court refused to acknowledge that police had kicked and beaten the wounded Jamal - a fact established by the prosecution's own witnesses. In finding accounts of such brutality "incredible," the court asserted that according to Jamal's treating physician "there was no evidence of injury other than the gunshot wound to Jamal's abdomen." (FF 256 n.25; see also FF 223 ("the only evidence of injury to Jamal was the gunshot wound").) Yet the very testimony the court cited states that Jamal had numerous other head injuries, including "a laceration of his forehead . . . swelling over the left eye, a laceration of his left lower lip, and . . . soft tissue swelling on the right side of his neck and chin" (6/28/82 Tr. 58) -- all of which could have been caused by a blow to the head from a walkie talkie. (6/28/82 Tr. 64; see also 12/21/81 Tr. 2-5.) There was other graphic, unrefuted evidence that Jamal was beaten. Dessie Hightower saw "eight or nine officers" who were standing around Jamal and several of these officers were striking him with "various things, clubs, feet. They had him by the dread locks." (6/28/82 Tr. 130; see also 6/29/82 Tr. 22-24 (Dr. R. Cudemo).) Even Commonwealth witness Cynthia White saw officers swinging their blackjacks at Jamal. (6/21/82 Tr. 149-50.) [91] For the court below, however, police officers simply can do no wrong. Thus the court found every police witness credible -- even when they could remember nothing or had dramatically changed their testimony -- while discrediting every defense witness.

In sum, Judge Sabo's deep-seated bias and hostility toward capital litigants, and his antipathy toward Jamal, poisoned the terrain on which Jamal's state post-conviction petition was litigated. The PCRA proceedings were nothing more than a cynical gesture at due process, conducted only to thwart an independent review of the witnesses and documentary evidence by this Court. The outcome was never in question, as Judge Sabo received Jamal's PCRA petition with no intention of giving it a moment's reflection, let alone granting relief on any of its claims. Federal deference to a State court judge's findings does not mean blind acquiescence. See Lahay v. Armontrout, 923 F.2d 578, 578-79 (8th Cir. 1991)("If conditions exist casting doubt on the reliability of the state court findings of fact, the presumption of correctness may be rebutted, and the petitioner is entitled to an evidentiary hearing to review the findings."). Jamal was, therefore, denied due process in its most meaningful sense - he entered into a proceeding with no chance at prevailing, not because the evidence did not exist, but because the factfinder was unwilling to consider evidence which would call for a result that ran counter to the one that had already been decided upon. For this reason, Judge Sabo's factfinding should be set aside and independent findings of fact should be issued by this Court.

CONCLUSION

For the reasons set forth herein, the state court's factfinding should be set aside pursuant to 28 U.S.C. §2254(d)(2) and the Fifth, Eighth and Fourteenth Amendments.

DATED this 19th day of January, 2024.

Respectfully Submitted,

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

BY: DANIEL R. WILLIAMS
521 Fifth Avenue 27th Fl.
New York, N.Y. 10175
(212) 883-1200

STEVEN W. HAWKINS
Nat'l Conference of Black Lawyers
1436 U. Street, N.W., Suite 104
Washington, DC 20249
(202) 387-3890

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

Local Counsel for Petitioner