COMMONWEALTH,
Case
No. 8201-1357-59
Respondent,
-vs-
MUMIA
ABU-JAMAL.
Petitioner,
PETITIONER
MUMIA ABU-JAMAL’S RESPONSE TO COURT’S NOTICE OF INTENT TO DISMISS PETITION
FOR POST-CONVICTION RELIEF AND/OR WRIT OF HABEAS CORPUS.
Pursuant
to this Court’s Order of November 21, 2024, and Pennsylvania Rules of
Criminal Procedure 907, 908, and 909, Petitioner Mumia Abu-Jamal hereby
submits his Response to Court’s Notice of Intent to Dismiss Petition
for Post-Conviction Relief and/or Writ of Habeas Corpus and Demands
Oral Argument and a Hearing thereon:
INTRODUCTION
"But
as the district attorney prepares for her new term, there’s fresh evidence
in her own backyard on the critical need to halt all executions. … Dwindling
public support for the death penalty rests on the presumption that it’s
administered fairly. But even a hardened prosecutor should have doubts
about that now."
Philadelphia
Inquirer Editorial
November
12, 2024
The
impetus for the Philadelphia Inquirer to publicly demand a moratorium
on executions in the State of Pennsylvania was a federal court’s recent
overturning of the conviction and death sentence in the very case which
underlies this Court’s intended decision that it purportedly lacks jurisdiction
to hear Petitioner Jamal’s PCRA/Habeas Petition—the case of Otis Peterkin.
In Commonwealth v Peterkin, 554 Pa 547, 722 A2d 638 (1999), the
Pennsylvania Supreme Court interpreted the filing deadlines created
by 1995 amendments to the Post-Conviction Relief Act ("PCRA")
as "jurisdictional" and, on that basis, refused to consider
a death row inmate’s claims that he did not have a fair trial. Because
the Pennsylvania Supreme Court sidestepped the issue of whether Mr.
Peterkin had a fair trial, a federal judge had to step in and do the
job the state supreme court refused to do. Result? In Peterkin v
Horn, 2024 US Dist LEXIS 18313 (USDC, EDPA, November 6, 2024), the
federal court overturned Peterkin’s conviction and death sentence for
prosecutorial misconduct, ineffectiveness of trial and appellate counsel,
and most alarmingly because there was insufficient evidence for a jury
ever to have convicted him in the first place.
In
short, what the Pennsylvania Supreme Court achieved in Peterkin was
to conceal a grave and flagrant miscarriage of justice which it was
its very task to remedy. In this case, in seeking to rely on the same
line of authority, this Court achieves precisely the same with its refusal
to hear Petitioner Jamal’s claims that he is innocent; that the real
killer has confessed and exonerated him; that his prior attorneys, Weinglass
and Williams, suppressed this and other evidence of his innocence and
failed or refused to raise meritorious issues of violations of Petitioner’s
constitutional rights at trial and in succeeding proceedings, because
they themselves were the victims of death threats, and because everything
which they did or purported to on behalf of the Petitioner was governed
by how they thought that they could best further their careers, they
put their own lives and safety and personal and professional reputations
before the interests of their client; and the conflicts of interest
on the part of those attorneys resulted in a situation far beyond "ineffective
representation" to constitute a "constructive denial of counsel"
which was the equivalent of Petitioner having had no counsel, but instead
being faced with a "second prosecutor."
The
Inquirer editorial pointedly describes the overturn of Peterkin’s conviction
and death sentence as "another case that casts troubling doubts
on the fairness of the death penalty—a system that disproportionately
condemns minorities and the poor, and sometimes even the innocent."
The case of Petitioner Mumia Abu-Jamal, in which evidence has recently
been brought forward which proves that the trial and post-conviction
judge, the notorious Judge Sabo, had remarked, at the time of Petitioner’s
original trial, that, "Yeah, and I’m going to help ‘em fry the
n****r," and that Petitioner Jamal is, in fact, innocent, should
make it abundantly clear that this case, like that of Otis Peterkin
is, to borrow the words of the Philadelphia Inquirer, "another
case that casts troubling doubts on the fairness of the death penalty—a
system that disproportionately condemns minorities and the poor, and
sometimes even the innocent."
The
rationale of the Pennsylvania Supreme Court’s decision in Peterkin and
other cases in which it has been followed has now been decisively undermined
by the overturning of Mr. Peterkin’s conviction and death sentence and
the revelations of the numerous injustices which deprived him of a fair
trial. In these circumstances, this Court can and should grant Petitioner
Jamal a full hearing on the merits of his claims for relief in his pending
PCRA/Habeas Petition even if it were to find that the claims in the
Petition fall outside of the statutory exceptions to the PCRA filing
deadlines. As Petitioner Jamal argued in his Memorandum of Law in Support
of Court’s Jurisdiction, at pp. 10-11 thereof, both Commonwealth
v Peterkin, supra, and Commonwealth v Fahy, 737 A2d 214 (Pa
1999) should be read as establishing a general rule of judicial restraint,
rather than a strict jurisdictional bar, to which exceptions might be
made in a truly extraordinary case like that of Petitioner Jamal in
order to avoid a grave miscarriage of justice. This argument is even
more compelling now, after the recent overturn of Peterkin’s conviction
and death sentence by the U.S. District Court.
In
his Memorandum of Law in Support of Court’s jurisdiction, at pp. 9-15
thereof, Petitioner Jamal set forth over 6 pages of legal argument,
supported by case citations, to prove that, even despite the Peterkin
decision and other cases in which it has been followed, the Court has
jurisdiction to hear this Petition on its merits under its various inherent
powers, including its nunc pro tunc power , under which the "jurisdictional
bar" of late filing of an appeal may be overcome, as in Commonwealth
v Stock, 679 A2d 760, 764 (Pa 1996); its power to construe this
Petition as a first petition, as was done in the post-Peterkin/Fahy
cases of Commonwealth v Peterson, 756 A2d 687, 689 (Pa Super
2024), Commonwealth v Leasa, 759 A2d 941,942 (Pa Super 2024),
Commonwealth v Provolos, 746 A2d 621, 624 (Pa Super 2024), Commonwealth
v Ross, 763 A2d 853 (Pa Super 2024), Commonwealth v Bronshtein,
Pa Super No. 938 EDA 2024, August 23, 2024; its common law habeas power,
and its generic inherent powers which were the source of the previously-followed
"relaxed waiver" rule in capital cases.
This
Court simply ignores each of these arguments in reaching its decision
to dismiss this Petition for an alleged want of jurisdiction, dismissing
in a brief footnote whose only citation to authority is, again, the
Peterkin case, Petitioner’s argument that state habeas relief is available.
The Court fails to analyze or even consider Petitioner’s arguments as
to why state habeas cannot be "subsumed" by the PCRA—the Court
merely reasserts the very proposition which is itself at issue—and further
asserts that since Petitioner "availed himself of PCRA relief in
1997 [sic], no habeas relief can be sought."
In
addition to ignoring the fact that the claims for which Petitioner is
now requesting habeas relief are not the same claims raised in the previous
PCRA proceedings (which took place in 1995-1996 pursuant to a petition
filed in 1995), the Court also ignores the fact that Petitioner Jamal
suffered not merely "ineffective representation" by counsel,
but what amounts to a "constructive denial of counsel" in
those proceedings and the fact that the proceedings were held before
Judge Sabo who, during the time of Petitioner’s original trial, expressed
his intent to "help ‘em fry the n****r." If Petitioner Jamal
"availed himself" of these proceedings, they were clearly
to no avail because of the grotesque and egregious violations of his
constitutional right to due process of law which permeated and poisoned
those proceedings.
In
the light of the District Court’s decision in Peterkin, these arguments
are now unanswerable. The post-Peterkin/Fahy cases of Commonwealth
v Peterson, 756 A2d 687, 689 (Pa Super 2024), Commonwealth v Leasa,
759 A2d 941,942 (Pa Super 2024), Commonwealth v Provolos, 746
A2d 621, 624 (Pa Super 2024), Commonwealth v Ross, 763 A2d 853
(Pa Super 2024), Commonwealth v Bronshtein, Pa Super No. 938
EDA 2024, August 23, 2024 should govern this case. The facts of this
case are indistinguishable from the facts of those cases, save in that
the conduct of the Petitioner’s prior attorneys, Messrs. Weinglass and
Williams, is at least ten million times more reprehensible than the
conduct of the prior attorneys in those cases.
I
THIS PETITION FITS SQUARELY WITHIN THE STATUTORY EXCEPTIONS
TO THE PCRA FILING DEADLINES.
A
"content analysis" of the Court’s Memorandum and Order of
November 21, 2024, reveals that the words "conflict of interest"
appear nowhere in that opinion although it is the manifold conflicts
of interest by Petitioner Jamal’s prior Chief Legal Counsel Leonard
Weinglass and Chief Legal Strategist Daniel R. Williams, from the inception
of their representation, which provide the factual basis for the claims
for relief set forth in the PCRA/Habeas Petition and thereby place the
Petition squarely within the statutory excepts to the PCRA filing deadlines.
Not
only does this Court fail to analyze or even mention the "conflict
of interest" issue, it makes no reference at all to the numerous
Pennsylvania cases cited in Petitioner’s Memorandum of Law in Support
of Court’s Jurisdiction, at pp. 4-5 thereof, which establish that "the
mere existence of such a conflict vitiates the proceedings," Commonwealth
v Cox, 441 Pa 64 (1970), and even "an appearance of conflict
of interest" is sufficient to threaten the "duty of zealous
advocacy" which is the obligation of an attorney representing a
post-conviction petitioner, Commonwealth v Wright, 374 A2d 1272,
1273 (Pa 1977).
Moreover,
this Court struck from its files a stack—roughly the size of a New York
City phonebook—of memoranda prepared by Petitioner’s prior attorneys
which detail all of the evidence which corroborates the truth of Arnold
Beverly’s testimony that he, and not Mumia Abu-Jamal, shot and killed
Officer Faulkner as part of a planned "hit" by organized crime
and corrupt police to eliminate an obstacle to the rampant and widespread
police corruption in center city Philadelphia in the 1980’s. This is
precisely the evidence which proves up the "conflicts of interest"
by Petitioner’s prior counsel which this Court fails to consider or
even discuss in its Memorandum and Order, exposes the fundamental lies
in Williams’ self-serving fictional account of Petitioner’s case in
Executing Justice, and answers the rhetorical questions posed by the
Court in asserting that Petitioner’s allegations purportedly lack "external"
and "internal" logic.
The
very existence of these memoranda prove that Messrs. Weinglass and Williams
did not, as claimed in William’s book, dismiss out-of-hand the possible
truth of Arnold Beverly’s confession, but rather that a tremendous amount
of time and effort went into analyzing how Beverly’s confession fit
into and was corroborated by the other available evidence in the case
as well as by evidence of the extent of police corruption in Philadelphia
as revealed by the FBI investigations and federal prosecutions of highly-placed
police officials. While it was not Messrs. Weinglass and Williams who
prepared these memoranda, but other members of the legal team, Weinglass
and Williams had all of these many memoranda at their disposal for review
and analysis and, significantly, there is not one memorandum by Weinglass
or Williams or anyone else which even attempts, even as a "devil’s
advocate," to attack Beverly’s credibility or the truth of his
testimony or to pose an alternative interpretation of the evidence to
refute rather than corroborate his testimony.
The
Court erred and abused its discretion in striking this key evidence
from the record and, by keeping this relevant evidence out of the record,
violated Rule 907 and 908 of the Pennsylvania Rules of Criminal Procedure.
As noted in the Official Comment to Rule 907: "To determine whether
a summary dismissal is appropriate, the judge should thoroughly review
the petition, the answer, if any, and all other relevant information
that is included in the record." The Court struck the memoranda
from the record on the purported grounds that they were filed without
leave of court. However, there is no written rule to the knowledge of
Petitioner’s Counsel which establishes such a requirement. Moreover,
the Court had accepted a number of filings of various other documents
by Petitioner’s Counsel, including but not limited to the Declaration
of George Michael Newman, the Declaration of Terri Maurer-Carter, and
other documents, without ever requiring an application for leave of
court and without ever advising counsel that leave of court was required.
It
is these very memoranda which this Court has stricken which by themselves
prove up the conflicts of interest which the Court does not mention
in its opinion. And, in the interests of justice, the Court should have,
in any case, granted leave of court to file these memoranda in order
to fulfill the legislative purpose of the PCRA statute which is to provide
for "an action by which persons convicted of crimes they did not
commit and persons serving illegal sentences may obtain collateral relief."
42 Pa CSA Sec 9542. How is that purpose to be accomplished if the courts
arbitrarily refuse to file evidence which is crucial to proving up the
basis for the relief which it is the purpose of the PCRA to provide?
Content
analysis also reveals that there is no reference to the Pennsylvania
Rules of Professional Conduct anywhere in this Court’s Memorandum and
Order, despite the fact that ex-Chief Legal Strategist Daniel William’s
publication of his mendacious book, Executing Justice, was a flagrant
and brazen per se violation of Rule 1.8 which specifically prohibits
an attorney from entering into or even negotiating a contract to publish
a book on a current case in which he represents one of the parties.
The Official Comment to Rule 1.8 specifically notes that there is necessarily
a conflict of interest in such a situation because what may promote
sales of the book may not be in the best interests of the client. This
means that, as a matter of law, Williams’ violation of Rule 1.8 also
constitutes conclusive evidence of his conflict of interest with regard
to publication of the book.
This
Court misunderstands or misconstrues Petitioner’s argument as being
that Weinglass and Williams sabotaged Petitioner’s case in order to
increase the sales of William’s book. It is Petitioner’s argument that
the publication of Executing Justice not only constitutes a per se conflict
of interest in violation of the Rules of Professional Conduct, but it
was specifically intended by ex-Chief Legal Strategist Williams, according
to ex-Chief Counsel Weinglass, to be a preemptive strike against Arnold
Beverly’s testimony. As such, it was also necessarily intended to be
a preemptive strike against Petitioner Jamal’s interest in having his
innocence proved since there could be no more compelling evidence of
his innocence than the voluntary confession, corroborated by a lie detector
test, of the real killer.
It
is Petitioner’s argument, set forth at Paragraph 19 and 73-135 of the
Petition, that among the unsavory motives that Messrs. Weinglass and
Williams had in publishing the book was to ruthlessly cover up the manner
in which their own cowardice and mishandling of Petitioner’s case over
the previous nine years, capped off by their suppression of Arnold Beverly’s
confession and the evidence which corroborated it, had undermined and
sabotaged Petitioner’s defense at the very same time that they had built
their careers on cynically and hypocritically posing to the world as
his courageous and self-sacrificing radical lawyers, fighting a heroic
battle against "the system."
It
is Petitioner’s argument that the necessary precondition for publication
of Executing Justice was the suppression of Arnold Beverly’s confession
and the evidence corroborating it because the ambiguity which, according
to its author, is the central theme of the book, not only presupposes
the suppression of that evidence but would be destroyed by that evidence
being brought forward. While Williams might have written a very different
book had he and Weinglass presented Arnold Beverly’s confession to the
courts instead of burying it in their files, having buried it the only
possible book that he could publish was one which threw the last few
shovelfuls of dirt over its burial site and their own tracks.
While
it is not Petitioner’s argument that Weinglass and Williams suppressed
the evidence of their client’s innocence to increase the sales of Williams’
book, it is a matter of record that Williams received a $30,000 advance
as a collateral benefit of having published a book which served as a
preemptive strike against the evidence which would prove both Mumia
Abu-Jamal’s innocence and his own attorneys’ perfidy, treachery, and
betrayal.
It
is Petitioner’s argument that the book, Executing Justice, exemplifies
in stunningly sharp relief what ex-Chief Counsel Weinglass and ex-Chief
Legal Strategist Williams have done throughout their involvement in
this case, they have shamelessly used it to aggrandize and promote themselves
and their own careers to the detriment of their client’s interest in
proving his innocence, saving his life, and restoring his freedom.
Whilst
it is plainly possible that what is alleged in the Petition is only
the "tip of the iceberg" as to the dark motives and other
possible factors in play which caused attorneys Weinglass and Williams
to act as they did; and while it is certainly possible that there is
much more to this story than Petitioner Jamal’s present counsel have
thus far been able to uncover; and while it is clearly possible that
Weinglass and Williams were subjected to various external pressures
which are not presently known; and while it is even possible for such
pressures to have come from the real murderers of Police Officer Daniel
Faulkner, those who planned his killing and hired the triggermen to
carry out it out, Petitioner Jamal need not be able to prove that all
of this is what has actually happened when what is known is more than
sufficient to make out a compelling case of conflicts of interest and
constructive denial of counsel, as is alleged in the Petition.
The
death threat that Chief Counsel Weinglass received with regard to Kenneth
Freeman is explained in detail in the Petition and is documented by
private investigator Newman and former legal team member, Rachel Wolkenstein,
Esq., in their respective affidavits. But the evidence demonstrating
this conflict of interest does not rest solely with this death threat
alone. The proof of this conflict of interest is the manner in which
Weinglass and Williams represented the Petitioner and presented his
case both in court and to the public at large throughout their retainer
(See Paragraphs 73 to 135 of the present PCRA Petition).
The
proof of this conflict of interest lies in what Weinglass and Williams
knew at the outset of their retainer, in what investigations they subsequently
did carry out and in what investigations they did not carry out, in
the claims for relief which they did present to the court and the claims
for relief which they did not, in how they undermined and, indeed, sabotaged
so many of the claims for relief which they purported to pursue, and
in the contrasting way in which they whipped up a political campaign
around this case in the streets, but then sold the Petitioner’s case
short in court, abjuring the very same arguments and evidence which
they were so loudly proclaiming to the world outside and the waiting
news media.
The
proof of this conflict of interest lies in the only reason which anyone
representing the Petitioner might have had in not presenting Arnold
Beverly’s case to the court in 1999: given the obvious and devastating
impact that Arnold Beverly’s confession had on every aspect of the prosecution
case against the Petitioner, given that Arnold Beverly had passed a
lie detector test, given that it was most unlikely that one could ever
get any better evidence to prove his innocence than a confession from
the real killer, given that, as the legal memoranda plainly demonstrate,
despite Williams’ protestations to the contrary in his mendacious book,
Weinglass and Williams, plainly had to have believed that Arnold Beverly
was telling the truth, and given that this was potentially their once
and for all opportunity to present Arnold Beverly’s testimony to the
court in the light of the 60-day time limit on presenting fresh evidence
under the PCRA statute, Weinglass’ and Williams’ true reasons for burying
Arnold Beverly’s confession and the corroborating evidence could not
possibly have been based on their client’s best interests, but only
on their own personal best interests and/or other interests adverse
to those of their client, Petitioner Jamal.
Had
Weinglass and Williams raised the Petitioner’s case on actual innocence
for the first time when they had Arnold Beverly’s confession in their
hands in mid-1999, it would have exposed the fact that they had earlier
failed to present any of the other evidence, such as the Petitioner’s
own testimony and the testimony of his brother, William Cook, which
demonstrates that the Petitioner is innocent and which was available
at the time of the original PCRA hearing, together with the reasons
why they had suppressed this other evidence in 1995. Not only that,
it would doubtless also have emerged that, at the time of the original
PCRA hearing, attorney Weinglass had kept William Cook off the witness
stand when he wanted to testify and then falsely represented to the
court that Cook had disappeared. In any event, the exposure of Weinglass’
and Williams’ suppression in 1995 of the then available evidence pointing
to Petitioner’s innocence would have left their personal legal and political
reputations in tatters (Paragraph 94 of the present PCRA Petition).
This
explains why Weinglass and Williams suppressed Arnold Beverly’s confession
instead of presenting it to the courts in 1999. This explains why Williams
has savaged Arnold Beverly and the testimony of other defense witnesses
in his book. In neither instance were he or Weinglass acting in anybody’s
best interests but their own. They were simply attempting to cover their
own backs. However, as the present PCRA Petition enumerates exhaustively,
the real damage to the Petitioner’s case had been done by the manner
Weinglass and Williams had conducted the original PCRA proceedings in
1995, when, contrary to the Petitioner’s express instructions, Weinglass
and Williams suppressed the Petitioner’s case on actual innocence together
with any evidence which supported it and any claim which depended on
this evidence.
But,
again, Weinglass and Williams went further than this. They even sabotaged
the claims which they were purporting to pursuing. For present purposes,
one example, possibly the most stark example, will have to suffice:
the otherwise wholly inexplicable failure by Weinglass and Williams
to prove up in the PCRA hearings in 1995-1996 that one of only two alleged
eyewitnesses who claimed to have seen Petitioner Jamal shoot Officer
Faulkner, convicted felon Robert Chobert, had recanted his trial testimony
and admitted to private investigator Newman that he had not even seen
the shooting. This cannot possibly be described as a strategic or tactical
decision by those attorneys unless they were, as a matter of fact, working
on behalf of the District Attorney or the real murderers of Officer
Faulkner. There is no possible reason why it would not be in Petitioner
Jamal’s interests to discredit Chobert’s trial testimony.
This
Court’s intended decision clearly fails to appreciate the significance
of Weinglass’ and Williams’ failure to prove up Chobert’s recantation
of his trial testimony. The contention that Petitioner Jamal had been
convicted on fabricated and perjured testimony of prosecution witnesses
was probably the most prominent feature of the case which Weinglass
and Williams purported to mount in the original PCRA proceedings. Newman
was present at court, ready to testify to the recantation if Chobert
were to deny it. But Weinglass never asked Chobert about it on the witness
stand and then got rid of Newman by lying to him, telling Newman he
was no longer required, because Weinglass had gotten "everything
he needed" out of Chobert.
This
is no innocent or negligent mistake. This is far from being "mere
ineffectiveness" of counsel. This is proof positive that the conflicts
of interest which began at the inception of Weinglass’ & Williams’
retainer, and had their ultimate expression in the publication of the
perfidious Executing Justice, permeated and deformed the 1995/1996 PCRA
hearings to such an extent as to cause Messrs. Weinglass & Williams
to hold back evidence to prove their own claims that Petitioner Jamal
had been convicted on fabricated evidence and perjured testimony.
After
all, if Petitioner Jamal did not shoot Officer Faulkner, then someone
else must have. Effective refutation of the frame-up perpetrated on
Petitioner Jamal might just as well reveal its function as a cover-up
of the identity of the real killers and point to the trail of those
who hired them to do the job. Thus, even to put forward the evidence
to prove the limited claims raised on Petitioner Jamal’s behalf by attorneys
Weinglass and Williams might raise the lid on the Pandora’s box that
these attorneys were terrified to open. Since even the District Attorney
concedes that there is a right to "effective representation"
in Pennsylvania at least on a first PCRA petition, Weinglass’ and Williams’
suppression of Chobert’s recantation clearly violated this right—as
well as the right not to be subjected to a constructive denial of counsel—and
means that Petitioner Jamal never had a "truly counseled"
first PCRA petition (Commonwealth v Priovolos, 746 A2d 621, 624
(Pa Super 2024)), thus this Court may and should construe this Petition
as a first petition which relates back to the 1995 filing date of his
original petition. Commonwealth v Bronshtein, Pa Super. No. 938
EDA 2024, August 23, 2024.
Although
the legal doctrine of "constructive denial of counsel" is
at the heart of Petitioner’s case as to why this Court has jurisdiction
to entertain the present PCRA/Habeas Petition, content analysis reveals
that the words "constructive denial of counsel" appear nowhere
in this Court’s opinion. However, Petitioner’s Memorandum of Law in
Support of Court’s Jurisdiction, at p. 5, makes it exceedingly clear
that the conflicts of interest by Petitioner’s previous counsel resulted
in violations of Petitioner’s constitutional rights that went far beyond
those contemplated by the doctrine of "ineffective representation
by counsel" under Strickland v Washington, 466 US 668 (1984),
to constitute a "constructive denial of counsel" under United
States v Cronic, 466 US 648, 656 (1984).
The
Petitioner’s case is that, because of his prior attorneys’ conflicts
of interest, he suffered "a constructive denial of counsel"
(PCRA Petition, Paragraphs 133 to 135). Rickman v. Bell, 131
F3d 1150, 1156-1157 (6th Cir. 1997); United States v. Cronic,
466 US 648, 656 (1984); Smith v. Robinson, 528 US 259, 286 (2000);
Wood v. Georgia, 450 US 261, 271 (1981); Appel v. Horn,
250 F3d 203, 221 (2001); United States v. Cook, 45 F3d 388, 393
(10th Cir. 1995); Commonwealth v. Lawson, 519 Pa. 504, 513, 549
A2d 107 (1988). Both legally and qualitatively, there is a huge difference
between mere "ineffective assistance of counsel" on the hand,
and " a conflict of interest" and a consequent "constructive
denial of counsel" on the other hand. See Appel v. Horn,
supra.
In
the first instance, the agency relationship between principal and agent,
client and attorney, subsists and the acts of the attorney which are
within the scope of his retainer are properly attributable to his client.
Hence, for example, Section 9545(b)(4) which expressly excludes defense
counsel from the definition of government officials, because, in cases
where there is no conflict of interest, acts of malfeasance or nonfeasance
on the part of a client’s attorneys are properly attributable to the
client on normal agency principles. In the second instance, however,
the normal agency relationship has broken down. Normal agency principles
do not apply, because the relationship of principal and agent has broken
down as a result of the agent’s conflict of interest. As the attorney
is in breach of his fiduciary duty to act in the best interests of his
client, any acts of malfeasance or nonfeasance on his part are not attributable
to the client. When, as in this instance, an attorney has deliberately
acted in ways which are contrary to his client’s interest because of
a conflict of interest on his part, none of his acts are attributable
to this client. Section 9545(b)(4) simply has no application and was
never intended to have any application in these circumstances. The crucial
distinction between these two doctrines, whose importance was emphasized
by the Third Circuit in Appel v Horn, is simply ignored by this
Court which proceeds to analyze Petitioner’s allegations of treachery
and betrayal by his former counsel as though Petitioner were complaining
that prior counsel were "merely ineffective" when, to the
contrary, Petitioner alleges that his prior attorneys, fearing for their
own lives and safety, put their own interests and their interests in
their future careers before Petitioner’s best interests and buried the
evidence which proves he is innocent rather than run the personal risks
to themselves and their professional reputations in putting forward
such evidence. The specific causal connection between the death threat
received by ex-Chief Counsel Leonard Weinglass (which the Court either
missed or chose to ignore in its review of the record) and Weinglass’
refusal to authorize investigation of Kenneth Freeman’s involvement
in the murder of Officer Faulkner is proved up by the declaration under
penalty of perjury from private investigator George Michael Newman.
It is their own desperate need to bury Freeman’s involvement in the
killing which explains Weinglass’ and William’s failure to raise the
legal issue of trial attorney Jackson’s "ineffectiveness"
for failing to prove up the presence of Freeman at the crime scene as
a passenger in William Cook’s car when it was pulled over by Officer
Faulkner, when Jackson could have used Cynthia White’s prior testimony
at William Cook’s trial to establish the presence of this passenger,
as well as to impeach White and prove-up prosecutorial misconduct in
concealing the passenger’s very existence at Petitioner Jamal’s trial.
It is Weinglass’ and Williams’ failure to prove-up through the testimony
of Arnold Howard at the 1995/1996 PCRA hearings that Freeman had his
hands tested for gunpowder residue by police a short time after Officer
Faulkner was killed and that Freeman was twice identified in a line-up
by Cynthia White which provides further evidence of their conflicts
of interest and the disastrous effect they had on presentation of Petitioner’s
case in the 1995 PCRA Petition and subsequent proceedings thereon.
The
specific causal connection between Weinglass and Williams’ conflict
of interest and their suppression of Arnold Beverly’s confession in
1999 is proved by the Petitioner’s prior attorneys previous legal memoranda,
by Weinglass’ handwritten annotations on one of those memoranda, by
the demonstrable lies told in Williams’ book, by Rachel Wolkenstein’s
affidavit, by Michael Newman’s affidavit, by the history of Weinglass
and Williams’ entire involvement in this case, by their knowledge at
the outset that Police Officer Faulkner was a victim of a "mob
hit", by their earlier suppression of the Petitioner’s case on
actual innocence together with the evidence with was then available
to prove the Petitioner’s innocence, by their sabotaging of even the
claims for relief which they did present on the Petitioner’s behalf,
by the claims presented in the current PCRA Petition, by Weinglass’
lie to the court about William Cook’s alleged "disappearance,"
by the contrasting way in which they conducted the case in court and
whipped up the political campaign in the streets, and by the fact that
it was so plainly only in their interests (and in the interests of the
District Attorney’s Office and, it must be said, the real murderers)
that Arnold Beverly’s confession be suppressed.
Petitioner
has demonstrated that the conflict of interest infected every decision
which Weinglass and Williams took in relation to the conduct of this
case. From the beginning to the end of their retainer, they made a series
of decisions which are otherwise wholly inexplicable, even on the grounds
of gross incompetence, in relation to the conduct of the Petitioner’s
case. Whilst the common denominator of many of those decisions is Weinglass
and Williams’ clear and obvious determination not to advance the Petitioner’s
case on actual innocence at all, not only as an independent claim, but
also, to the extent that the evidence which proves the Petitioner’s
innocence was necessary to prove up numerous other meritorious claims
for relief on his behalf, not to pursue such claims, or to the extent
that any were nominally pursued, not to prove them with all or any of
the available evidence, the impact of the conflict of interest did not
stop there. As Newman’s affidavit proves, Weinglass and Williams even
fouled up their attack on Chobert’s credibility and Weinglass then lied
to Newman to cover this up.
The
sheer number of examples of how the Weinglass and Williams’ fouled up
the Petitioner’s meritorious claims for relief and the variety of the
ways in which they did so, which are exhaustively detailed in the present
PCRA Petition, proves that there had to have been a conflict of interest
on the part of the part of the Petitioner’s prior attorneys, that they
had to be motivated by something other than the best interests of their
client. Weinglass and Williams are not and were not inexperienced, naive
or feckless attorneys. They knew precisely what they were doing. Williams’
book and Weinglass’ letter to the Petitioner of 2/22/01 prove this.
This is not a case when errors were made just once, or twice, or three
times, or any innocent number of times. This is not a case when the
prior attorneys sometimes made baffling and incompetent mistakes. This
is a case when every time the prior attorneys had the opportunity or
needed to present the Petitioner’s case on actual innocence, the evidence
which supported it, they abjured it. This is a case when just about
every time they had in their hands a potentially winning claim on the
Petitioner’s behalf, they ignored it, misrepresented it, failed to adduce
the evidence to support it, or otherwise undermined it.
Instead
of properly analyzing Petitioner’s allegations with regard to his prior
counsel’s conflicts of interest and their impact on his case, the Court
constructs its own "straw man" version of Petitioner’s claims—that
"these attorneys believed that foreclosing Petitioner’s chances
for a new trial would increase the sales of Mr. William’s book"—and
then proceeds to ridicule and destroy the "straw man" it has
created. According to this Court, "this attorney fraud theory collapses
by virtue of its lack of external and internal logic." The Court
poses the following irrelevant rhetorical questions: "Why would
hitherto honorable, capable and professional attorneys desert their
training, their ethics, their professionalism and place their very right
to practice law in jeopardy? Why would one or more of these attorneys
behave so heinously when the only possible advantage would be to the
one among them who authored the book? How would a public failure to
secure relief for a client facing the death penalty improve sales of
a book?"
These
rhetorical questions could just as readily be addressed to the issue
of why Mr. Williams chose to violate Rule 1.8 of the Rules of Professional
Conduct as flagrantly and brazenly as he indisputably did when he published
Executing Justice. Yet, the mere fact that such questions might be asked
does not disprove Mr. Williams’ guilt, nor does it make his conduct
any less blameworthy. Indeed, anytime disciplinary charges are brought
against an attorney, which happens thousands of times each year in this
country, probably in this state as well, the same questions might be
and are asked. However, in this case, the following points should be
realized:
Firstly,
it should be noted that it is not Petitioner Jamal’s burden to prove-up
or even explain the subjective motive or intent of his prior counsel
in doing what they did to suppress the evidence which proves his innocence
and other legal claims of violations of his constitutional rights. All
that Petitioner Jamal need prove is the objective effect upon his case
of his prior counsel’s nonfeasance, misfeasance, and malfeasance, and
show that their conduct has no reasonable strategic or tactical explanation.
If the Court is interested in ascertaining Messrs. Weinglass’ and Williams’
motivation it should authorize the taking of their depositions and/or
set an evidentiary hearing and issue subpoenas for them to appear and
testify.
Secondly,
the Court constructs its "straw man" by ignoring Petitioner’s
allegations and argument that the conflicts of interest by his former
counsel began at the inception of their representation when they decided
not to pursue investigation of information that Officer Faulkner had
been the victim of a planned murder by organized crime and corrupt police
officers because he was an obstacle to the "pay-off" rackets
that permeated the Central Division of the Philadelphia Police Department
in the 1980’s. It is alleged in the PCRA/Habeas Petition that Weinglass
and Williams knew that to pursue such an investigation would put them
up against ruthless, powerful and dangerous forces and would put not
only their own lives and safety at risk, but also their future careers.
When
they subsequently ended up with Arnold Beverly’s signed confession in
their hands, corroborated by a lie detector test and undeniable evidence
of rampant and widespread police corruption, that same conflict between
their own narrow personal interests and their client’s interest, caused
them to bury that evidence rather than present it to any court. It was
that same conflict which earlier caused them to keep Petitioner Jamal’s
brother, William Cook, off the witness stand at the PCRA proceedings,
as his testimony would have pointed to Kenneth Freeman, who had confessed
to Cook that he, Freeman, had been an armed participant in the shooting
of Officer Faulkner.
And
it was that same conflict which later flowered into attorney Williams’
unethical and mendacious book, Executing Justice, among whose purposes
was to cover their trail and keep suppressed both the evidence of Petitioner’s
innocence and that of their cowardly betrayal of their innocent client
to the executioner while cynically and hypocritically posing to the
world as Mumia Abu-Jamal’s courageous defenders.
Thirdly,
in finding that its straw man "attorney fraud theory" supposedly
"collapses by virtue of its lack of external and internal logic",
this Court also forgets that its role at the pleading stage in these
proceedings is not to make credibility determinations which could only
be made at an evidentiary hearing, but rather, just as in ruling on
a motion to dismiss or a demurrer (see Balsbaugh v Rowland, 447
Pa 423, 426, 290 A2d 85, 87 (1972)), to assume that the allegations
in the Petition are true, and then consider whether, even if true, the
allegations do not justify granting relief. It would only be upon a
correct finding that the allegations in the Petition, even if true would
not justify relief, that a Court could properly dismiss a Petition.
See Official Comment to Rule 907, Pennsylvania Rules of Criminal Procedure:
"To determine whether a summary dismissal is appropriate the judge
should thoroughly review the petition, the answer, if any, and all other
relevant information that is included in the record. If, after this
review, the judge determines that the petition is patently frivolous
and without support in the record, or that the facts alleged would not,
even if proven, entitle the defendant to relief [emphasis added], or
that there are no genuine issues of fact, the judge may dismiss the
petition as provided herein."
For
precisely the same reasons, as well as the eminently practical reason
that, as a matter of fact, unless and until the Court has heard Arnold
Beverly or, for that matter, attorney Weinglass or attorney Williams,
testify it is impossible for the Court to make any credible findings
of fact, it is not the Court’s role at this stage to make any findings
about the credibility or otherwise of Arnold Beverly or to conjecture
as to what Weinglass and Williams may have thought about him.
Whilst
the Court speculates that Arnold Beverly may have falsely confessed
to the murder of Police Officer Faulkner because he is an attention
seeker, it can point to no evidence in the record which even suggests
that this may be so. The Court ignores the possibility that Arnold Beverly
is telling the truth and that the Commonwealth of Pennsylvania is itself
about to commit murder by executing an innocent man. The Court ignores
the possibility that, if Arnold Beverly were ever permitted to testify,
the Court might find him to be a credible witness. Without itself hearing
Arnold Beverly testify, the Court simply cannot dismiss out of hand
his written and signed confession under penalty of perjury, and his
videotaped confession, both of which are on file in this Court and part
of the record.
As
it is, all of the available evidence points inevitably to the conclusion
that Arnold Beverly is telling the truth. Arnold Beverly’s confession
is not only corroborated by the existing evidence on the record and
the further fresh evidence which has now been filed with Court, but
also provides an explanation for the otherwise completely inexplicable
aspects of the original prosecution case against the Petitioner as is
set out not only in the present PCRA Petition (Paragraphs 1337 to 362),
but also in the memoranda prepared by the Petitioner’s prior attorneys
in 1999, which the Court has improperly stricken from the record.
As
to the Court’s implied conjecture that Weinglass and Williams may have
believed that Arnold Beverly was a dishonest witness, there is no evidence
to support such a surmise. Williams’ book is not admissible evidence
and, in any event, it is demonstrably self-serving and untrue in what
it what purports to record about Arnold Beverly. The legal memoranda,
Dr. Honts’ and Rachel Wolkenstein’s affidavits, together with the fact
that Weinglass and Williams had known that Arnold Beverly had been saying
that Police Faulkner had been murdered as a result of a "mob hit"
since the inception of their retainer all independently prove this.
In
summary, not only does the Court fail to consider Petitioner’s real
allegations and argument, it also uses the wrong methodology. The Court
should assume the allegations in the Petition to be true, and then inquire
whether Petitioner would be entitled to relief. If he would, then the
Petition should not be dismissed. An evidentiary hearing should be set
at which Petitioner might present the evidence to prove the allegations
in the Petition and discovery should be authorized in order to prepare
for that hearing.
Additionally,
of course, the Court should apply the proper legal concepts in its analysis,
in this case, the concepts which do not appear in its Memorandum and
Order, namely "conflict of interest" and "constructive
denial of counsel." Such analysis—by its own "internal"
and "external" logic—will necessarily lead to the conclusion
that this Petition should not be dismissed but rather heard on its merits.
While
the Court purports to find that no new material facts were discovered
within the sixty days immediately preceding the filing of this Petition,
the truth is otherwise. The new facts which underlie Petitioner’s claims
for relief in this PCRA/Habeas Petition which were discovered between
May 4, 2024, when Petitioner’s present counsel took over his representation
from prior counsel Weinglass & Williams, and July 3, 2024, when
this Petition was filed, and could not have previously been discovered,
include the following:
- throughout
their retainer, attorney Weinglass and attorney Williams had a conflict
of interest.
- throughout
their retainer, attorney Weinglass and attorney Williams had consistently
and flagrantly acted in breach of their fiduciary duty of loyalty
to him in ways which were contrary to his best interests, and only
in their best interests.
- there
was evidence which was available which, completely contrary to what
attorney Weinglass and attorney Williams had told the Petitioner as
a result of their conflict of interest, did not damage his case, but,
quite the opposite, proved the Petitioner’s innocence.
- there
was evidence which was available which proved his innocence of which
the Petitioner was completely unaware, because of attorney Weinglass
and attorney Williams’ conflict of interest.
- there
were numerous meritorious claims for relief which, because of their
conflict of interest, attorney Weinglass and attorney Williams had
deliberately suppressed, of which the Petitioner was unaware.
- there
were numerous meritorious claims for relief which, because of their
conflict of interest, attorney Weinglass and attorney Williams had
deliberately undermined and sabotaged in ways of which the Petitioner
was completely unaware.
- throughout
their retainer, attorney Weinglass and attorney Williams deliberately,
because they were acting in their own interests, and because they
were not acting in the Petitioner’s best interests, withheld the Petitioner’s
case on actual innocence, deliberately withheld the evidence which
proves the Petitioner’s innocence from the Courts, and deliberately
withheld, or deliberately failed to present properly, numerous meritorious
claims for relief on the Petitioner’s behalf, because proving those
claims depended upon adducing the evidence which proved the Petitioner’s
innocence, as is demonstrated by a review of the claims in the pending
Petition.
- the
real reasons why evidence which was previously potentially available
which proves the Petitioner’s innocence was not presented to the Court.
- the
real reasons why numerous meritorious claims for relief on the Petitioner’s
part were either not pursued or, if they had been pursued, had failed
to succeed. 10. the Petitioner’s whole case had been deliberately
sabotaged by his prior attorneys, Weinglass and Williams.
The
Court suggests that Petitioner may have known that Arnold Beverly had
signed a written confession in June 1999 to the crime for which Petitioner
had been convicted, but ignores the fact that prior to May 4, 2024,
Petitioner did not know that his prior attorneys had undisclosed conflicts
of interest which necessarily tainted all of the advice they had given
him. He did not know that every act which they purported to perform
on his behalf was tainted by those conflicts of interest. He did not
know that when his prior attorneys told him that, say, Arnold Beverly’s
confession would be presented to the court, metaphorically speaking,
over their dead bodies, that among the reasons why they were so desperate
that Arnold Beverly’s confession should never see the light of day in
a courtroom was that it exposed the failure to present so much other
evidence which goes to prove the Petitioner’s innocence which could
and should have been adduced at the 1995 PCRA hearing, but which they
had suppressed, together with the reasons why they had done so and how
they had misled the PCRA court.
Although
Petitioner Jamal had put his total trust and confidence in attorneys
Weinglass and Williams and had literally put his life in their hands,
he did not know and had no way to know that they were much more concerned
to protect their own lives and safety, as well as their reputations
and careers, by burying Arnold Beverly’s confession, than they were
concerned to win Petitioner Jamal’s case by presenting the confession
to the courts. This conflict of interest was never disclosed to Petitioner
Jamal by ex-Chief Counsel Weinglass or ex-Chief Legal Strategist Williams
when they refused to present Beverly’s confession and misrepresented
to Petitioner Jamal that this evidence would harm rather than help his
case. Prior to May 4, 2024, the Petitioner had believed that attorneys
Weinglass and Williams had been honestly acting in his best interests
in everything in which they had done or purported to do on his behalf.
Prior to May 4, 2024, the Petitioner had quite properly been able to
believe that he could rely and act upon his prior attorneys’ advice
and that their advice was genuine, disinterested and given with only
his best interests in mind. Petitioner Jamal had put his total trust
and confidence in these attorneys. He had to. He had placed his life
in their hands.
Indeed,
the only inkling which the Petitioner had before May 4, 2024, that his
prior attorneys might have done anything other than with his best interests
in mind was when he received the proof copy of Williams’ book, Executing
Justice, at the end of February, 2024. However, he did not then suddenly
realize exactly what attorney Weinglass and Williams had done. The scales
did not suddenly fall from his eyes and the whole picture suddenly emerge
in front of him. He only knew that something was very wrong. He could
see that Williams’ book was built upon one flagrant lie after another
although it purported to be the "inside story" of his case.
He could see that Williams cynically and diabolically traded on his
position as Petitioner’s attorney to give his lies a false veneer of
credibility and to tie the lies to Petitioner Jamal. He could see that
although he was innocent, and his attorneys knew that he was innocent,
Williams’ book repeatedly suggested in various ways that he was guilty.
He knew that his Chief Counsel, Leonard Weinglass, whom he had respected
for his long years of experience, legal acumen, and political principles,
would do nothing to stop publication of the book because Weinglass told
him as much. Feeling rightly that he could no longer trust the two men
that he had put his faith and trust in for nine years, and to whom he
had literally entrusted his life, Petitioner Jamal did the only thing
which he could do in the circumstances, on March 5, 2024, he personally
filed a motion in the District Court for withdrawal of his existing
counsel and requested time to find new counsel. When, on April 6, 2024,
the District Court granted the Petitioner’s motion, ordered the withdrawal
of his counsel approved upon the entry of new counsel, and granted him
30 days for new counsel to enter their appearance, he set about finding
new counsel.
When
Petitioner’s new counsel became aware of the evidence, including Arnold
Beverly’s confession, which they filed in the District Court on May
4, 2024, when they filed their appearances, they, like the Petitioner,
did not know the true reasons why Petitioner’s ex-Chief Counsel and
ex-Chief Legal Strategist had not presented the evidence to any court.
This only began to emerge in the following weeks as they began to work
their way into the case and through the prior attorneys’ papers, piecing
together what the Petitioner’s prior attorneys had done and why they
had done it. It was only as the sheer scale of the numerous ways in
which the Petitioner’s prior attorneys, Messrs. Weinglass and Williams,
had undermined the Petitioner’s case began to emerge that it became
clear that this was not a case merely of grossly incompetent prior counsel,
but that attorney Weinglass and attorney Williams had been actively
working against the Petitioner’s best interests at almost every turn.
It was only as the Petitioner’s present counsel began to piece together
the extent to which the evidence on the record and the other available
evidence so closely corroborated Arnold Beverly’s confession and made
sense of the previously and otherwise inexplicable aspects of the original
prosecution case against the Petitioner, and the extent to which the
Petitioner’s prior attorneys had understood and appreciated this at
the time when they were telling the Petitioner that attempting to rely
upon Arnold Beverly’s confession would positively damage his case that
the truth that there was no innocent explanation for the failure to
present Arnold Beverly’s testimony to the Court began to emerge, because
there was no good reason and no one ever voiced any good reason. The
Petitioner’s prior attorneys’ conflict of interest did not rise fully
formed, like a phoenix out of the ashes of the prior attorneys’ retainer,
on May 4, 2024. It had to be painstaking pieced together from an analysis
of everything which the prior attorneys had done, the reasons which
they had given for doing it (for instance, in Williams’ book) and the
independent and contemporaneous evidence which destroyed the credibility
of Williams’ account, and the manner in which Weinglass and Williams
had acted throughout their retainer until the conclusion that Weinglass
and Williams had been actively sabotaging the Petitioner’s case from
almost the outset of their retainer and certainly before the 1995 PCRA
became inevitable.
Even
now, further evidence continues to emerge. Hence the Petitioner’s filing
of all of the prior attorneys internal memoranda relating to the decision
not to present Arnold Beverly’s confession to the Court in 1999 on 16th
November 1999, which was only possible after an exhaustive search through
all of the dozens of boxes of the prior attorneys’ papers had established
that, in all of those thousands of papers, not one single reason was
ever put forward in any of the memoranda relating to this aspect of
the case as to why Arnold Beverly’s confession should not be presented
to the court. In any event, as a matter of law, the Petitioner could
not have known about the factual predicate underlying the claims of
conflict of interest in the current PCRA Petition until his present
attorneys entered their appearances on May 4, 2024, and his prior attorneys’
representation was withdrawn, because his prior attorneys’ conflicts
of interest were undisclosed by his prior attorneys and the Petitioner
could not have acted on these claims until his prior attorneys were
withdrawn from his representation. The other statutory exception to
the PCRA’s filing deadlines which is pled in this Petition is that these
claims for relief could not have been previously presented because of
interference by governmental officials. Contrary to this Court’s misperception
of this argument, it is not the Petitioner’s case that the Petitioner’s
prior attorneys acted as government officials. It is the Petitioner’s
case that they are deemed to have acted as agents of government officials,
because they deliberately acted against the Petitioner’s interests and
in the interests of the Commonwealth. Thus section 9545(b)(4) has no
application on the facts of the present case. This is not to say that
whenever a defendant fails to be acquitted as a result of his attorney’s
negligence, the attorney is deemed to have acted as an agent of the
prosecution. Quite the contrary. It is the Petitioner’s case that this
issue only arises in the, hopefully, exceptional case such as the present
one, when, as a result of conflicts of interest, the attorney’s acts
of nonfeasance, misfeasance and/or malfeasance were deliberately carried
out in the interests of the prosecution and contrary to the interests
of his client.
II
PETITIONER JAMAL COULD NOT HAVE ACTED ON HIS OWN TO BRING BEFORE THE
COURT THE EVIDENCE OF HIS INNOCENCE SUPPRESSED BY HIS OWN ATTORNEYS,
WEINGLASS AND WILLIAMS, BECAUSE A CLIENT IS BARRED FROM ACTING ON HIS
OWN WHEN HE IS REPRESENTED BY COUNSEL.
While
in another context this Court refers to "hornbook law," it
fails to note that it is also "hornbook law" that a client
who is represented by an attorney may not act on his or her own behalf
but may only act through the attorney. No court would entertain a pleading
signed by a client who was attempting to act pro se while at the same
time being represented by an attorney.
Thus,
this Court’s suggestion that Petitioner Jamal somehow had a personal
responsibility to attempt an end run around attorneys Weinglass and
Williams when they were still his attorneys of record and should have,
on his own, written and filed his own PCRA petition based on Arnold
Beverly’s confession is, quite frankly, devoid of legal merit. Mr. Jamal
could not have done so while he was still represented by Messrs. Weinglass
and Williams.
Only
Mr. Jamal’s attorneys, Chief Counsel Weinglass and Chief Legal Strategist
Daniel Williams, could have filed such a PCRA Petition. They refused
to do so because they did not consider it to be in their own personal
and professional interests to do so, despite the overwhelming need to
do so in order to fulfill their responsibilities as Mr. Jamal’s advocates.
Instead, Messrs. Weinglass and Williams spent their time drafting a
federal habeas petition which similarly failed to present the Arnold
Beverly confession and other evidence of Mr. Jamal’s innocence and suppressed
any facts or legal issues that might conceivably open the Pandora’s
box, expose the involvement of Arnold Beverly and Kenneth Freeman, expose
the involvement of organized crime and corrupt police officers, and,
most dangerously, possibly point to the identity and involvement of
the unknown persons who planned the murder of Officer Faulkner and hired
the hit men to carry it out, while at the same time they put together
Mr. Williams’ infamous book, Executing Justice, to cover their own trail
and keep the frame-up in place which it was their duty, as Mr. Jamal’s
attorneys, to expose and overturn.
III
PETITIONER JAMAL WAS DEPRIVED OF HIS RIGHT TO A FAIR HEARING
ON HIS 1995 PCRA PETITION.
This
Court has implicitly accepted the credibility of Terri Maurer-Carter’s
declaration under penalty of perjury that, while Petitioner Jamal was
on trial before Judge Sabo, she heard the Judge make the following statement
referring to Petitioner: "Yeah, and I’m going to help ‘em fry the
nigger." The Court does not challenge Ms. Maurer-Carter’s credibility
and, indeed, there is no evidence in the record to contradict her account.
The
Court states that it is not possible to ascertain if the claim is timely
filed because it is "not clear" that Petitioner could not
have learned of the facts sooner. How Petitioner could possibly have
learned of the facts sooner than Ms. Terri Maurer-Carter disclosed them
to Petitioner’s Counsel in August of this year is left unexplained.
Until Ms. Maurer-Carter came forward, neither the Petitioner nor his
present or prior counsel had or can have had any reason to suspect that
Ms. Maurer-Carter had heard Judge Sabo make such a statement. However,
if this is an issue it is obviously one to be determined at an evidentiary
hearing at which both the Court and the District Attorney would be free
to inquire of Ms. Maurer-Carter as to whatever details they wished to
know.
While
the Court takes the frankly surprising and unsustainable position that
an openly racist judge who expresses the specific intention to contrive
with the prosecution to procure the conviction and death sentence of
a defendant does not deprive the defendant of his constitutional right
to a fair trial so long as it is the jury and not the judge who is the
fact-finder—ignoring the obvious fact that any exercise of discretion
by such a judge during a jury trial would be an abuse of discretion
as it would necessarily be poisoned by the venom of racism—the Court
forgets that it was the same "nigger-frying" Judge Sabo who
was the fact-finder in the 1995 PCRA hearings. Thus, Petitioner Jamal’s
statutory and constitutional right to a fair hearing was necessarily
violated by Judge Sabo’s presiding at the 1995 hearings and by his refusal
to grant Petitioner’s motion to recuse him for bias and by his own failure
to recuse himself sua sponte.
Since
Petitioner Jamal was deprived of his right to a fair hearing at the
1995 PCRA proceedings, it is just as if he never had a first PCRA petition.
Just as in the cases cited in Petitioner’s initial Memorandum of Law
in Support of Court’s Jurisdiction, at pp. 11-12 thereof, and with even
more reason than in those cases, this Petition should be considered
to be Petitioner Jamal’s first petition and it should relate back to
the filing of the 1995 Petition. Since the 1995 Petition was filed before
the effective date of the PCRA amendments, the time deadline relied
upon by this Court to deny jurisdiction in this matter would not apply
and the Court should hear this Petition on the merits.
Any
rulings which the appellate courts may have made in this case to the
effect that Judge Sabo legitimately acted within his discretion in the
rulings which he made at trial and during the original PCRA proceedings
are necessarily in error, since those decisions were reached by the
appellate courts in ignorance of Judge Sabo’s racial prejudice against
Petitioner Jamal and thus in ignorance of the fact that Sabo’s racism
must necessarily have affected the manner in which he exercised his
discretion. Any exercise of discretion by a judge whose expressed purpose
in making his rulings was "help ‘em fry the nigger" must necessarily
be an abuse of discretion.
IV
THE COURT HAS FAILED TO THOROUGHLY REVIEW THE PETITION, ANSWER, AND
RELEVANT INFORMATION IN THE RECORD.
The
Official Comment to Rule 907, Rules of Criminal Procedure, emphasizes
that, "[t]o determine whether a summary dismissal is appropriate,
the judge should thoroughly review [emphasis added] the petition, the
answer, if any, and all other relevant information that is included
in the record." The factual inaccuracies in the Court’s Memorandum
and Order make it clear that such a thorough review has not been carried
out as required.
The
Petitioner’s Petition for a Writ of Habeas Corpus which was filed in
the United States District Court for the Eastern District of Pennsylvania
on 15th October 1999 was filed by the Petitioner’s then attorneys, Leonard
Weinglass and Daniel Williams, on the Petitioner’s behalf. The Petitioner
was not acting pro se at this time. Leonard Weinglass and Daniel Williams
continued to be the Petitioner’s attorneys of record until 4th May 2024.
Their representation was only withdrawn on this date, when the Petitioner’s
present counsel, Marlene Kamish, Eliot Grossman, Nick Brown and Michael
Farrell entered their appearances. These factual errors are far from
insignificant in their necessarily deleterious effect on the Court’s
consideration of the jurisdictional issue.
The
Petitioner does not allege that his prior attorneys’ conduct amounts
only to mere "ineffectiveness of counsel." Rather, it is the
Petitioner’s case that his prior attorneys’ entire retainer was tainted
by a conflict of interest on their part, that he suffered "constructive
denial of counsel" and that there was a total breakdown in the
adversarial system.
The
Petitioner most certainly does allege that he was unaware of the relevant
facts and "strategies" chosen by his former lawyers prior
to May 4, 2024. The Petitioner most certainly does allege that he was
completely unaware that his prior attorneys, Weinglass and Williams,
were sabotaging his case as a result of conflicts of interest on their
part prior to May 4, 2024. The Petitioner most certainly does allege
that he had no idea that he had been deceived and betrayed by his prior
attorneys prior to May 4, 2024, and that he and his present attorneys
only gradually came to realize this and to begin to understand the contours
of what had happened during the period between his present attorneys
entering their appearances in U.S. District Court on May 4, 2024, and
their filing of this Petition in this Court on July 3, 2024.
Petitioner
does not suggest that the reason for the manner in which his previous
attorneys behaved is that his prior attorneys believed that foreclosing
the Petitioner’s chances for a new trial would increase the sales of
Williams’ book. This point is discussed in detail above and will not
be repeated here.
The
Petitioner most certainly does assert that the weight and sufficiency
of the evidence relied upon by the prosecution at his original trial
has never been effectively or properly challenged, that the reason why
this did not happen at the original PCRA hearing was because of his
prior attorneys’ conflict of interest, and that he was unaware that
this had happened or of the reason why this had or might have happened
until after May 4, 2024.
The
Petitioner most certainly does assert that he was unaware that, because
of their conflict of interest, his prior attorneys had in bad faith
suppressed his case on actual innocence and had in bad faith suppressed
the evidence which proved his innocence.
The
Petition most certainly does explain why Petitioner did not file a new
PCRA Petition or apply to amend his earlier PCRA Petition in 1999, and
this point is further explained in this Response, viz., Petitioner was
represented by his Chief Counsel Leonard Weinglass and Chief Legal Strategist
Daniel Williams and could only act through them. Petitioner had placed
his full faith and trust in them and had no reason to know or suspect
that all of their conduct and all of their advice to him was tainted
and poisoned by their undisclosed conflicts of interest.
Petitioner
most certainly does assert that he was prevented from testifying during
the original PCRA proceedings because he followed the advice of his
prior attorneys and that (although he was unaware of this until after
May 4, 2024) the reason why they blocked him from testifying was because
of their conflicts of interest.
Petitioner
was unaware (and could never have been aware) of many of the remaining
facts and events underlying his claim that Weinglass and Williams deliberately
and in bad faith failed and refused properly to investigate or provide
a genuine defense in his case and deliberately and in bad faith failed
to expose the "pro forma" defense put on by attorney Jackson
at his trial.
Petitioner
was unaware (and could never have been aware) that Weinglass and Williams
were acting in bad faith and that their failure to present his defense
case was a deliberate act on their part, which stemmed from their conflict
of interest, and that they were not acting in his best interests at
all. Petitioner was unaware that Weinglass had deliberately and in bad
faith kept William Cook off the stand in 1995, and was unaware that
Weinglass had lied to the Court about why William Cook was not being
called to testify.
Petitioner
was unaware (and could never have been aware) that Robert Chobert had
retracted his trial testimony when he was interviewed by defense investigator,
Mike Newman, in 1995, and thus was unaware that Weinglass had deliberately
failed to elicit this fact from Robert Chobert when he testified in
1995.
Petitioner
most certainly does assert that he was completely unaware (and could
never have been aware) that, as a result of their conflict of interest,
Weinglass and Williams deliberately and in bad faith kept off the stand
himself, his brother William Cook, Doctor Coletta, Michael Newman, Prosecutor
McGill and his former appellate counsel Marilyn Gelb. The Petitioner
most certainly does assert that he was unaware that, as a result of
their conflict of interest, Weinglass and Williams deliberately and
in bad faith failed to elicit vital testimony from William Thomas, William
Singletary, Arnold Howard, Robert Chobert and Anthony Jackson.
Petitioner
was completely unaware (and could never have been aware) that, as a
result of their conflict of interest, Weinglass and Williams had deliberately
and in bad faith failed to object to Judge Sabo’s order turning over
the physical evidence in the case to the police thus providing them
with ample opportunity for them to tamper with the evidence, or that,
as a result of their conflict of interest, Weinglass and Williams had
deliberately and in bad faith failed to have the ballistics and firearms
evidence tested. This issue could not be waived by Weinglass and Williams’
failure to raise this claim on appeal from denial of post-conviction
relief, since Weinglass and Williams, the same counsel who had deliberately
and in bad faith failed to object to Judge Sabo’s order or have the
ballistics or firearms evidence tested, continued to represent the Petitioner
on that appeal. Their bad faith and their conflict of interest persisted.
The
Petitioner was completely unaware (and could never have been aware)
that, as a result of their conflict of interest, Weinglass and Williams
had deliberately and in bad faith failed to investigate, request discovery
on or otherwise prove up in the original PCRA proceedings attorney Jackson’s
history of drug abuse.
The
Petitioner was completely unaware (and could never have been aware)
that, as a result of their conflict of interest, Weinglass and Williams
had deliberately and in bad faith failed to plead or prove up numerous
points of ineffective representation on direct appeal by Petitioner’s
appellate counsel, Marilyn Gelb.
V
THIS PETITION MAY NOT BE DISMISSED WITHOUT A HEARING.
Pursuant
to Rules 907, 908 and 909, Pennsylvania Rules of Criminal Procedure,
Petitioner demands a hearing and oral argument on the issue of whether
or not this Petition should be dismissed. The Court notes at the beginning
of its Memorandum and Order that it requested briefing on the issue
of whether Petitioner is entitled to oral argument on the jurisdictional
issue, however, the Court failed to rule on this issue.
Although
the Court seeks to base its intended dismissal of this action on Rule
909, it is evident from the text of the rules that Rules 907, 908 and
909 are interrelated in such a fashion that they cannot be interpreted
properly in isolation from each other. Rule 908, which governs hearings,
states that, except as provided in Rule 907, the judge shall order a
hearing "whenever the Commonwealth files a motion to dismiss due
to the defendant’s delay in filing the petition" or "when
the petition for post-conviction relief or the Commonwealth’s answer,
if any, raises material issues of fact."
In
this case, the Commonwealth filed an Answer which was the equivalent
of a Motion to Dismiss because it only raised the issue of the Court’s
jurisdiction to hear the petition and did not go to the merits of any
of Petitioner’s Claims for Relief. Thus, since the Answer is the equivalent
of a motion to dismiss, Rule 908 would require the Court to hold a hearing
before ruling on whether or not it would dismiss the petition. The Official
Comment to Rule 908 points out that: "The 1997 amendment to paragraph
(a)(1) requires a hearing on every Commonwealth motion to dismiss due
to delay in the filing of a PCRA petition."
Rule
907 governs disposition of a petition without a hearing. The Official
Comment to Rule 907 states: "A PCRA petition may not be dismissed
due to delay in filing except after a hearing on a motion to dismiss.
See 42 Pa.C.S. Sec. 9548(b) and Rule 908." Thus it is evident that
Rule 907 cannot apply when the basis for dismissal is an alleged delay
in filing, as in this case. Rule 907 distinguishes the procedure in
non-capital cases in which the petitioner is restricted to filing written
opposition to a notice of intent to dismiss from that in capital cases,
under Rule 909, where the petitioner may request oral argument, by noting
that the Rule 907 procedure applies "[e]xcept as provided in Rule
909 for death penalty cases." Although it might generally be within
the court’s discretion to grant a request for oral argument under Rule
909, it would obviously be an abuse of discretion to refuse such a request
in a case such as this one in which the basis for the notice of intent
to dismiss is an alleged "delay" in filing the petition and
in which the Commonwealth has chosen to file an Answer which is the
equivalent of a motion to dismiss.
Finally,
it is quite clear from reviewing Rules 907-909 and their accompanying
Official Comments that it was the intent of the Legislature that a PCRA
petition not be dismissed without a hearing on grounds of late filing,
because to do so would mean that not only would a petitioner never have
his or her claims of constitutional violations even considered by the
courts, but the petitioner would not even have the opportunity for a
hearing on whether the court should hear these claims. Such a summary
procedure would violate the very purpose of the Post-Conviction Relief
Act which is to provide for "an action by which persons convicted
of crimes they did not commit and persons serving illegal sentences
may obtain collateral relief." 42 Pa.C.S.A. Sec. 9542.
CONCLUSION