IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_______________________________________________
MUMIA ABU-JAMAL,
Petitioner,
v.
Case No. 99 Civ. 5089
MARTIN HORN, Commissioner, (YOHN)
Pennsylvania Department of Corrections,
and CONNER BLAINE, Superintendent of
the State Correctional Institution
at Greene;
Respondent.
________________________________________________
“FOR CHICANA/CHICANO STUDIES
FOUNDATION”
INTRODUCTION
The case of Petitioner Mumia Abu-Jamal is an exceedingly complex one which
presents a veritable “Gordian’s knot” of complicated legal and factual issues which have generated literally hundreds of pages of briefs by the parties
and various amicus. The justification for submitting this amicus brief is three-fold: (1) to provide additional context, cited from the record, with which to
view several issues of particular significance to Amicus which are presently before the court, each one of which mandates reversal of Mr. Jamal’s conviction; (2) to argue that the Commonwealth’s
admission at the PCRA hearing as to the power of the mitigation evidence mandates reversal of Mr. Jamal’s death sentence and precludes their seeking the death
penalty at re-trial; and (3) to dispose of the Commonwealth’s argument that certain of Petitioner’s claims have been procedurally defaulted.
ARGUMENT
I. DENIAL OF PETITIONER MUMIA ABU-JAMAL’S
FARETTA RIGHT OF SELF-REPRESENTATION
MANDATES THAT A NEW TRIAL BE GRANTED.
A. MR. JAMAL HAD A RIGHT TO REPRESENT HIMSELF AT TRIAL.
The right of a citizen to represent himself before the power of the State is a
fundamental one, arising from precedent that predates the founding of the Republic. It is personal and individual and is of such a fundamental nature that its
denial constitutes a structural defect in the proceedings. The Supreme Court has repeatedly held that denial of the right to self-representation is never
harmless error and must be remedied by granting the defendant a new trial. Faretta
v. California, 422 U.S. 806 (1975)
; Arizona v. Fulminante
, 499 U.S. 279, 310 (1990
)
, citing McKaskle
v. Wiggins,
465 U.S. 168 (1984); accord Sullivan v. Louisiana, 508 U.S. 275 (1993).
In Faretta
, 422 U.S. at 819
, the Supreme Court specifically holds:
“Although not stated in the
[Sixth]Amendment in so many words, the right to self-representation -- to make one’s own defense personally -- is thus necessarily implied by the structure of
the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.”
The basis for the holding in Faretta
is the court’s extensive and scholarly historical and conceptual analysis from which it concludes that
“[t]he right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the
Amendment emerged.” 422 U.S. at 818. Indeed, the Faretta
court notes that the only English court in which a defendant was forced against his will to be represented
by counsel was the notorious Court of Star Chamber, an infamous 16th and 17th century institution whose very name is synonymous with tyranny and injustice. 422
U.S. at 822”
In tracing the history of the right to self-representation prior to the American
Revolution, the Supreme Court notes that the insistence upon a right of self-representation was, if anything, more fervent [in the Thirteen Colonies] than in
England. The colonists “brought with them an appreciation of the
virtues of self-reliance and a traditional distrust of lawyers,” a distrust which “became an institution.” The aftermath of the Revolution saw a “sudden
revival” of the “old dislike and distrust of lawyers as a class.” And, it was “[i]n the heat of these
sentiments [that] the Constitution was forged.” 422 U.S. at 826-827.
According to the Supreme Court: “The Founders believed that self-representation was a
basic right of a free people. Underlying this belief was not only the anti-lawyer sentiment of the populace, but also the ‘natural law’ thinking that
characterized the Revolution’s spokesmen.” 422 U.S. at 830, n.39
. Indeed, Thomas Paine argued that the right to counsel was secondary to the right of self-representation, from which the former was
itself derived: “Either party ... has a natural right to plead his own cause; this right is consistent with safety, therefore it is retained; but the parties
may not be able, ... therefore the civil right of pleading by proxy, that is, by a council, is an appendage to the natural right [of self-representation] ...”
Id.
Ironically, in this case it is the Commonwealth of Pennsylvania which has violated
Petitioner Jamal’s right to self-representation although William Penn, the founder of the Commonwealth, was one of its strongest advocates. Penn, as a Quaker,
was no stranger to persecution. Before coming to America, he was charged with inciting a riot for preaching a
sermon in the street in England after his church had been closed by the government. Penn defended himself and was
acquitted. He is credited with authorship of the Pennsylvania Frame of Government of 1682, “the most influential of the Colonial documents protecting
individual rights,” in which the right to self-representation is set forth as follows: “That, in all courts all
persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves; or, if
unable, by their friends ....” This right to self-representation was carried over to the Declaration of Rights of
the Pennsylvania Constitution, and is typical of codifications of the same right in numerous other state constitutions. 422
U.S. at 827, n. 37, 38.
B. THERE WAS NO REASON TO ABORT MR. JAMAL’S RIGHT OF SELF-REPRESENTATION AND
FORCE AN UNWANTED LAWYER ON HIM.
As the Supreme Court points out in Faretta
, 422 U.S. at 820-821:
“The language and spirit of
the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the amendment, shall be an aid to a willing defendant -- not
an organ of the State [emphasis added] interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the
accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make
a defense is stripped of the personal character upon which the amendment insists ... An unwanted counsel “represents”
the defendant only through a tenuous and unacceptable legal fiction. [emphasis added] Unless the accused has acquiesced in such representation, the defense
presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.” [emphasis in original]
The grotesque scenario
described in Faretta
, in which counsel “represents” a defendant through a legal fiction but serves in reality as an organ
of the State, is precisely what occurred in the case of Petitioner Mumia Abu-Jamal. This should never have
happened as there was no justification for depriving Mr. Jamal of his right to self-representation. In order to demonstrate this, it is necessary to review in
detail the chronology of events leading up to June 17, 1982, when Judge Sabo revokes Mr. Jamal’s pro se status.
In May 13, 1982, during
pre-trial proceedings, Petitioner Mumia Abu-Jamal requests and is granted the right to represent himself. (5/13/82 Tr. 54, 68-70) Thereafter, he skillfully
conducts a several day suppression hearing, adroitly cross-examines fifteen witnesses, and eloquently argues several
additional motions. During these four days, Mr. Jamal conducts himself appropriately, is respectful to the court,
and draws neither admonishments nor warnings from the trial judge for any “disruptive” behavior, as there is none. (6/1/82
Tr. 1.1-1.149; 6/2/82 Tr. 2.1-2.135; 6/3/82 Tr. 3.1-3.104; 6/4/82 Tr. 4.1-4.147)
Mr. Jamal then conducts two days of jury voir dire during which time he questions 23
potential jurors, successfully challenges two for cause, defeats a prosecution challenge for cause, and exercises two peremptory challenges.
Mr. Jamal, again, is appropriate and respectful to the court, and the voir dire proceeds without incident. (6/7/82
Tr. 1-189; 6/8/82 Tr. 2.1-2.159)
The following day, the trial judge takes over the voir dire himself, but does not alter
Mr. Jamal’s pro se status. Judge Sabo acknowledges that he had not
“rebuked” Mr. Jamal for any of his conduct during voir dire, but claims that questioning of the venire was proceeding too slowly and, allegedly, some venire
members were uncomfortable being questioned by the defendant. (6/9/82 Tr. 3.17) The Pennsylvania Supreme Court, in its review of these proceedings on appeal from the PCRA post-conviction proceedings, notes that Mr. Jamal
“argued vehemently that the court should not perform the voir dire questioning” but that the court “took over
the questioning and then properly [sic] ordered that back-up counsel take control.” (Commonwealth v. Mumia
Abu-Jamal, 720 Atlantic Reporter 2d 79, 109 (Pa. 1998)
. Thereafter, jury selection continues for an additional four and one-half days without
any disruptive behavior on the part of Mr. Jamal. 6/9/82 Tr. 3.106-3.250; 6/10/82 Tr. 4.1-4.251; 6/11/82 Tr.
5.1-5.212; 6/15/82 Tr. 1-255; 6/16/82 Tr. 1-497)
On June 17, 1982, pre-trial proceedings continue with regard to various matters,
including Mr. Jamal’s request that various items of evidence be provided to him by the prosecution prior to commencement of trial. These proceedings take
place without incident. (6/17/82 Tr. 1.1-1.31.) The trial then begins.
After the court’s opening instructions to
the jury, but before the state’s opening statement, Mr. Jamal asks the court for a microphone at counsel table. A side-bar conference is held. The court
refuses his request and threatens to remove his pro se status and put back-up counsel, Mr. Jackson, in as attorney of
record if Mr. Jamal doesn’t “speak up.” Trial resumes with Mr. Jamal again requesting a microphone. A
side-bar is held. Mr. Jamal repeats his request for a microphone and expresses his dissatisfaction with Mr. Jackson, renewing an earlier request to have a lay
person, John Africa, sit with him at counsel table to advise and assist him. The prosecutor taunts Mr. Jamal, accusing him of trying to “chicken out” of
representing himself. The court denies Mr. Jamal’s requests. The court again threatens to revoke Petitioner’s pro
se status. Mr. Jackson makes a motion for leave to withdraw, citing his lack of qualifications and discomfort with regard to the role of back-up counsel and
Mr. Jamal’s rejection of him. The motion is denied. (6/17/82 Tr.
1.44-1.69)
When trial resumes before the jury, Mr. Jamal renews his motion for leave to have John
Africa sit with him at counsel table. (Mr. Africa was a personal friend of Mr. Jamal.
Although a non-lawyer, Mr. Africa had recently successfully defended himself in a federal criminal prosecution.) The jury is excused and discussion
continues at side-bar. Mr. Jamal vigorously argues in support of his request. The court asks Mr. Jamal if it is his
intention to disrupt the proceedings. Mr. Jamal twice assures the court that it is not his intention to be
disruptive. Discussion of the matter of Mr. Africa continues until the noon recess. (6/17/82 Tr. 1.70-1.89)
After the noon recess, in open court and out of the presence of the jury, discussion
continues of Mr. Jamal’s request for the presence of John Africa at counsel table. The prosecutor states on the
record that he has no objection to Mr. Africa sitting in the courtroom in the same area where police officers are sitting, nor has he any objection to Mr. Jamal
talking with Mr. Africa at recess, in between witnesses, before court, or in his cell. (6/17/82 Tr. 1.90-1.96) It
is clear from this that the prosecution had no security concerns with regard to Mr. Africa, nor was he concerned that Mr. Africa might be disruptive of the
proceedings or encourage Mr. Jamal to be disruptive. Judge Sabo apparently had no such concerns either, as he advises the prosecutor that he has no problem with Mr. Africa being in the courtroom
during the proceedings, including during breaks. (6/17/82 Tr. 1.114)
Discussion continues with regard to Mr. Jamal’s lack of faith in Mr. Jackson and his
request to have Mr. Africa sit with him at counsel table. The judge suggests three times to Mr. Jackson that he go
to the Supreme Court for clarification of his role, given Mr. Jamal’s position. (6/17/82 Tr. 1.115-1.117)
In response to Jackson’s expression of doubt that he would have standing to do so, Judge Sabo first responds that he can tell the Supreme Court that
the trial judge is “on the verge” of removing Mr. Jamal as his own attorney, and then offers to actually revoke Mr. Jamal’s pro
se status if Mr. Jackson so requests: “Well, if you’re asking me to remove him, I’ll remove him. I’ll
make it easy for you.” (6/17/82 Tr. 1.118)
There was no justification at this point to revoke Mr. Jamal’s pro se status. The prosecutor himself indicates that the only reason to make Mr. Jackson primary counsel would be to give him standing to request
the Supreme Court clarify his role as back-up counsel. The prosecutor specifically says to Judge Sabo that once such clarification is forthcoming “and we are
again before this Court in this trial that Your Honor consider moving Mr. Jackson and reappointing or for that matter allowing Mr. Jamal to represent himself
again.” (6/17/82 Tr. 1.120) Just prior to saying this, the prosecutor acknowledges Mr. Jamal’s desire to
represent himself and advises the judge of his own feeling that Mr. Jamal would accept the Supreme Court’s decision. (6/17/82 Tr. 1.119)
Had Mr. Jamal been disruptive of the proceedings, certainly the prosecutor would not have suggested that the
judge restore him to pro se status, nor would the prosecutor have offered the opinion that Mr. Jamal would comply with the Supreme Court’s decision.
Additionally, the prosecutor concedes that Mr. Jamal has presented what is at least an arguably
meritorious issue deserving of adjudication by the Pennsylvania Supreme Court: “And the issue, as I understand it, is whether or not backup
counsel must in fact be an attorney. Of course, if they say that’s not needed, it’s not necessarily true, well
then, he can have whomever he wishes.” (6/17/82 Tr. 1.121) The prosecutor also concedes that having a lay person
at counsel table and a back-up attorney are not mutually exclusive alternatives, suggesting to Judge Sabo that, even if the Supreme Court rules that Mr. Jamal
can have the assistance of Mr. Africa, that the court continue to have Mr. Jackson present. (6/17/82 Tr. 1.121)
However, Judge Sabo, after previously suggesting removal of Mr. Jamal’s pro
se status purely as a stratagem to confer “standing” on Mr. Jackson, and explicitly acknowledging the prosecutor’s statement that there was no other
reason to do so, proceeds to accuse Mr. Jamal of intentionally disrupting the orderly progression of the trial. (6/17/82
Tr. 1.122)
When Mr. Jamal inquires as to how he disrupted the proceedings, Judge Sabo says:
“[W]hen I make a ruling that’s it, you don’t argue with the Court about the ruling ...” Mr. Jamal
immediately accepts this injunction and advises the court that he will comply with it by replying: “Judge, fine.” (6/17/82
Tr. .122) Despite this, Judge Sabo proceeds to strip Mr. Jamal of his right to self-representation, appointing Mr. Jackson as attorney of record.
(6/17/82 Tr. 1.123)
It is important to note that this is the first
time that Judge Sabo specifically instructed Mr. Jamal that it is improper to continue arguing a point after the court has made a ruling. Prior to that, Mr.
Jamal had renewed his motion for the assistance of Mr. Africa at numerous points in the proceedings. Rather than admonishing Mr. Jamal on those occasions and
instructing him not to re-argue the point, the Judge Sabo had entered into extended discussion with him, discussion in which the prosecutor frequently joined.
As a result, it was reasonable for Mr. Jamal, as a lay person, to assume there was
nothing improper in continuing to press a point which he felt was crucial to his defense. As previously argued, above, this was a point which even the prosecutor
acknowledged to present a legitimate issue and which, immediately prior to revocation of Mr. Jamal’s pro se status,
the prosecutor himself had suggested be taken before the Pennsylvania Supreme Court.
Moreover, at the time he revoked Mr. Jamal’s pro
se status, Judge Sabo made no specific factual findings of any kind as to when Mr. Jamal had allegedly been disruptive or how such alleged behavior had
interfered with the proceedings. Clearly, Mr. Jamal’s conduct prior to having his right to self-representation
revoked did not even approach that of the defendant in Illinois v. Allen
, 397 U.S. 337 (1970)
. In Allen
, the classic case on the limitations of the right to self-representation, the pro se defendant, upon being
instructed to confine his voir dire to questions concerning the juror’s qualifications, began to argue with the judge in an abusive and disrespectful manner,
continued talking when the judge appointed counsel to continue the voir dire, threatened the judge’s life, tore his file out of the attorney’s hands and
threw the papers on the floor, and said the following: “There’s not going to be no trial, either. I’m going
to sit here and you’re going to talk and you can bring your shackles out and straight jacket and put them on me and tape my mouth, but it will do no good
because there’s not going to be no trial.” 397 U.S. at 340. The defendant was removed from the courtroom, allowed to return after a recess, repeated the same conduct and was again excluded. The Supreme
Court ruled that, by his conduct, the defendant had forfeited his Sixth Amendment right to be present at his trial.
Dougherty v. United States, 473 F.2d 1113 (D.C. Cir. 1972)
was a multi-defendant case in which anti-Vietnam War protesters were charged with various crimes for having
invaded Dow Chemical’s offices and committed acts of vandalism. There the court held that it was an
unconstitutional deprivation of the right to self-representation for the trial court to have denied defendants’ request to proceed pro se based upon disruptive behavior which occurred after denial of their request, explaining that this would be like “using the fruit of
an unreasonable search to provide a cause making the search reasonable.” The Dougherty
court further explained that it would be “anomalous to hold that the denial of one’s rights can be
justified by reference to the nature of subsequent complaints protesting that denial.” 473 F2d at 1126. Thus, in the case before this court, it is only to Mr. Jamal’s conduct prior to having his pro se
status revoked that the court should look to determine whether Judge Sabo was justified in stripping him of his right to self-representation. As is previously
argued, Mr. Jamal’s conduct did not merit removal of his pro se rights.
With regard to behavior prior to having pro
se status denied, the Dougherty
court held that such behavior must be disruptive in the sense of “evincing
defendants’ intent to upset or unreasonably delay the hearing.” 473 F2d at 1127. In the case before this court, Mr. Jamal’s intent was clearly to press his point with regard to his need for the
assistance of Mr. Africa in order to present his pro se defense. There was no intent to upset or unreasonably delay the hearing, as earlier demonstrated by Mr. Jamal’s stoically professional
acceptance of denial of his suppression motion and exemplary conduct throughout the voir dire proceedings, and as later evidenced by his twice stating to the
trial judge on the record that it was not his intention to in any way disrupt the proceedings.
When Judge Sabo finally instructed Mr. Jamal that it was improper for him to continue to
argue a point after the court had ruled, Mr. Jamal agreed to follow that instruction. Previous to that, the judge had permitted Mr. Jamal to renew his motion
with regard to Mr. Africa on a number of occasions and both the court and the prosecutor had permitted themselves to be drawn into continued argument on the
motion. It was reasonable for Mr. Jamal to assume that it was proper for him to continue to press his point under
the circumstances and his persistence in so doing cannot properly be characterized as evincing a disruptive intent.
In his dissent in Illinois v. Allen
, 397 U.S. at 353, Justice Douglas reminds us that “great injustices have at times been done to unpopular minorities by judges”
and quotes at length from the court record of William Penn’s trial in London in 1670. There is a such a striking
similarity between the English judges’ interchange with that “gentle Quaker” three centuries ago and that between Judge Sabo and Petitioner Mumia Abu-Jamal
three hundred years later that it evokes an eerie sense of deja vu:
WILLIAM PENN: I desire you would let me
know by what law it is you prosecute me, and upon what law you ground my indictment.
RECORDER: Upon the common-law.
PENN: Where is that common law?
RECORDER:
You must not think that I am able to run up so many years, and over so many adjudged cases, which we call common-law, to answer your curiosity.
PENN: This answer I am sure is very short
of my question, for if it be common, it should not be so hard to produce. (397 U.S. at 353)
***
THE COURT [Judge Sabo]: The law of
Pennsylvania says that you can only have backup counsel who is a member of the bar, and that’s the way it’s going to be.
THE DEFENDANT [Mumia Abu-Jamal]: What
I’m saying to you, Judge, is that –
THE COURT:
And I’m saying to you –
THE DEFENDANT: --
there is no rule or statute that you can point to –
THE COURT:
If you think –
THE DEFENDANT: -- that says I can’t
have someone –
THE COURT:
If you think that’s wrong –
THE DEFENDANT: -- sitting at the defense
table? (6/17/82 Tr. 1.107-1.108)
***
RECORDER: Sir, will you plead to your
indictment?
PENN: Shall I plead to an Indictment that
hath no foundation in law? If it contain that law you say I have broken, why should you decline to produce that law ... ? (397 U.S. at 353)
***
THE COURT: ... I
made a ruling on the law. You must follow it.
THE DEFENDANT:
You have made a ruling on your procedure. You have not made -- there is no law that
states why someone cannot assist me at the defense table, and you know it. (6/17/82 Tr. 1.108-1.109)
***
RECORDER.: You are a saucy fellow, speak
to the Indictment.
PENN: I say, it is my place to speak to
matter of law; I am arraigned a prisoner; my liberty, which is next to life itself, is now concerned ... I say again, unless you shew me, and the people, the
law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary. (397 U.S. at 353-354)
***
THE COURT:
If you don’t like it, your attorney can tell you what you can do.
THE DEFENDANT:
That is not a ruling on the law. It’s a ruling on your procedure.
THE COURT:
No, it isn’t. It is a ruling on the law.
THE DEFENDANT:
What law? What law can you state that I cannot have someone assist me at that table? (6/17/82 Tr. 1.109)
***
RECORDER:
You are an impertinent fellow, will you teach the court what law is? It is ‘Lex non scripta,’ that which
many have studied 30 or 40 years to know, and would you have me to tell you in a moment?
Penn:
Certainly, if the common law be so hard to be understood, it is far from being very common ... (397 U.S. at 354)
***
THE COURT:
Mr. Jamal, I am not going to argue consistently throughout this trial. If you continue to act in this way –
THE DEFENDANT: In what way am I acting?
THE COURT:
When I make a ruling you have an automatic exception to that ruling. It will be reviewed by the Appellate Court. I
don’t want to stand here and argue with you all day long on
every ruling I’m going to make
throughout this trial. (6/17/82 Tr. 1.109-1.110)
***
RECODER:
Sir, you are a troublesome fellow, and it is not for the honour of the court to suffer you to go on.
PENN: I have asked but one question, and you have not answered me; though the rights and privileges of every Englishmen be concerned in it.
RECORDER:
If I should suffer you to ask questions till to-morrow morning, you would be never the wiser.
PENN: That is according as the answers are.
RECORDER:
Sir, we must not stand to here you talk all night.
PENN: I design no affront to the court, but to be heard in my just plea ... (397 U.S. at 354-355)
***
THE COURT:
Standing here and arguing with me all day is foolish.
THE DEFENDANT:
No, it is not foolish.
THE COURT:
I do what I believe is the law.
THE DEFENDANT:
... What I’m saying, Judge, is, that there is no law that prohibits you from allowing someone to assist me at the defense table. This is done all the
time. I cited cases during that Motion to Suppress, a number of cases, that happened right here in this City Hall where there was an assistance from non-lawyers
at the defense table, and there’s no reason-- and there’s no reason for you or the Commonwealth to deny me access to assistance that I have stated a number
of times that I need in my defense. (6/17/82 Tr. 1.113-1.114)
***
RECORDER:
Take him away. My lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do any thing to night.
MAYOR:
Take him away, take him away, turn him into the bale-dock. (397 U.S. at 355
)
***
THE COURT:
You have certain rights but what I said is this: My position is that you have
deliberately disrupted the orderly
progression of this trial. Therefore, I am removing you as primary counsel and I am appointing Mr. Jackson to take over as primary counsel.
(6/17/82 Tr. 1.122-1.123)
After quoting from the transcript of William Penn’s trial, Justice Douglas, in
his dissent in Illinois v. Allen, asks us: “Would we tolerate removal of a defendant from the courtroom
during a trial because he was insisting on his constitutional rights, albeit vociferously, no matter how obnoxious his philosophy might have been to the bench
that tried him? Your Honor, the question before this Honorable Court is similar: Will the Court tolerate removal of Mumia Abu-Jamal as pro se counsel for his own defense because he
was insisting on his constitutional rights, albeit vociferously?
C. MR. JAMAL’S RIGHT TO REPRESENT HIMSELF WAS WRONGFULLY TAKEN FROM HIM ON THE
QUESTIONABLE BASIS OF AN “APOCRYPHAL” PENNSYLVANIA SUPREME COURT DECISION IN AN IN CAMERA HEARING FROM WHICH HE
WAS UNLAWFULLY EXCLUDED.
Shortly after Judge Sabo’s precipitous revocation of Mr. Jamal’s pro se rights at the end of the day on June 17, 1982, court was adjourned until the next morning. (6/17/82
Tr. 1.127-1.128) The next day’s proceedings were highly irregular. The
first entry in the transcript for June 18, 1982 notes that a conference was held in chambers off the record. Then, a
conference was held in chambers on the record which occupies fifty-five pages of transcript. (6/18/82 Tr. 2.1-2.56)
Given that these conferences dealt with critical issues related to Mr. Jamal’s right to self-representation and a conflict of interest on the part of
his back-up counsel, they constituted improper in camera hearings. Mr.
Jamal was not present at either of these hearings, in violation of his Sixth Amendment right to self-representation (Oses v. Com. of Mass., 775 F.S. 443
(D. Mass. 1991), aff’d 961 F.2d 985 (1st Cir. 1992)
) and his Fifth and Sixth Amendment right to be present at all critical stages of the proceedings. Hopt v. Utah, 110 U.S. 574, 579 (1884
); United States v. Gagnon, 470 U.S. 522, 526
.
While it is not known what transpired in the off
the record hearing, the subsequent on the record in camera hearing begins with the prosecutor and Mr.
Jackson, giving Judge Sabo their conflicting accounts of an apocryphal ruling earlier that morning by Supreme Court Justice McDermott on several purported
petitions allegedly presented by Jackson. (6/18/82 Tr. 2.2-2.4, 2.58)
The reason for Amicus’s qualifying
adjectives in the preceding sentence is that there is no record on the Pennsylvania Supreme Court docket of any such petitions, hearing or ruling. (See
certified copy of Supreme Court docket and accompanying declaration attached hereto as EXHIBIT “A”.) It should
also be noted that at no point in the fifty-five page transcript of this in camera hearing is there any indication
that either counsel have presented Judge Sabo with a written order or decision from Justice McDermott.
According to the prosecutor, there were three petitions presented by Mr. Jackson to
Justice McDermott, all of which were denied: (1) a petition to stay the trial court’s order appointing Jackson as Mr. Jamal’s attorney; (2) a petition to
stay the trial court’s order preventing John Africa from sitting at counsel table; and (3) a petition for John Africa to be permitted to set at counsel table
as counsel for Mr. Jamal, however “[t]he [Supreme] Court did not say anything about the mistrial request ...” (6/18/82
Tr. 2.2) Although Mr. Jackson disagreed with this account, claiming that he “never requested that John Africa act
as counsel, but to assist Mr. Jamal,” (6/18/82 Tr. 2.4), the prosecutor recounted, to the contrary, that “there was considerable argument as to whether or not John Africa could
be counsel ... [and] there was a clear statement by Justice McDermott that no one can represent a defendant who is not an attorney of the law.”
(6/18/82 Tr. 2.3). Mr. Jackson also added that Justice McDermott had given him guidelines, at his request, for his “participation in the trial.”
(6/18/82 Tr. 2.5)
While Amicus’s counsel are admittedly
unfamiliar with the day-to-day workings of the Philadelphia courts, it does seem rather odd that, when back in open court, Judge Sabo proceeds to act as though
the conflicting oral accounts of these purported Supreme Court rulings (of which there is no apparently no written
record) are instructions which are binding upon him as trial judge: “I don’t want to hear anymore about it.
As I told you yesterday, I would abide by what the Supreme Court said. The Supreme Court has spoken in this matter.
They have affirmed my decisions and there’s nothing to argue any further.” (6/18/82 Tr. 2.59)
While it is exceedingly difficult to know
what to make of these highly irregular and, frankly, baffling proceedings, what is clear is that Judge Sabo relied
upon these apocryphal “rulings” by Judge McDermott to sustain his earlier revocation of Mr. Jamal’s right to self-representation, as well as the denial of
assistance by Mr. Africa at counsel table, as indicated by the fact that Judge Sabo’s reference to the Supreme Court having “affirmed” his decisions so
that “there’s nothing to argue any further” immediately follows Mr. Jackson, in open court, renewing on behalf of Mr. Jamal the request for the assistance
of Mr. Africa at counsel table, and advising the court that he, Jackson, was “now being forced by the Court to participate as his [Jamal’s] trial counsel
against his [Jamal’s] wishes.” (6/18/82 Tr. 2.59)
What is even more baffling, and chillingly illustrative of the grossly prejudicial
consequences of the apocryphal hearing and purported rulings by the Pennsylvania Supreme Court is that, later in the trial, Jackson advises Judge Sabo that, in
fact, Justice McDermott was neither presented with nor ever ruled upon Mr. Jamal’s right to represent himself: “The issue of self-representation was not
presented specifically to the Supreme Court so that this matter remains with Your Honor with regard to whether in fact Mr. Jamal could continue to represent
himself.” (6/21/82 Tr. 4.3)
What this means is that, on June 18 when Judge Sabo refused to reinstate the pro
se status he had stripped from Mr. Jamal without justification the previous day, he did so on the basis of a Supreme Court ruling that had never been made, on an issue that had never been presented! Can this Honorable Court countenance denial of a fundamental federal constitutional right as a consequence of such bizarre proceedings which,
with all due respect to the Commonwealth of Pennsylvania, belong more properly in the Court of Star Chamber, or
that of the Queen of Hearts in Alice-in-Wonderland, than in any courtroom in the United States of America?
After Jackson explains to Judge Sabo on June
21 that the issue of Petitioner’s pro se rights is still before the trial court, he renews the motion for leave for
Mr. Jamal to proceed pro se, specifically requesting that Mr. Jamal at least be permitted to make closing argument and
cross-examine three particular witnesses. Judge Sabo denies all these motions. (6/21/82 Tr. 4.3-4.5)
Inasmuch as Judge Sabo’s initial revocation of Petitioner Jamal’s pro
se status was in violation of his Sixth Amendment right to self-representation (as there had been no disruption and providing “standing” to Mr. Jackson
to obtain apocryphal orders is obviously no reason to remove one’s pro se rights), Mr. Jamal still had the right to represent himself and it was, therefore, an additional violation of that right to exclude him from
the in camera hearing. Since a hearing concerning Mr. Jamal’s right to proceed pro se, and to have the assistance of a lay person at counsel table, was clearly a “critical stage” of the proceedings, it further violated his
Fifth and Sixth Amendment rights to exclude Petitioner from that hearing.
D. THE UNWANTED LAWYER THAT THE
COURT IMPOSED ON MR. JAMAL “CONTRIVED” AGAINST HIM WITH THE ACTIVE CONNIVANCE OF JUDGE SABO AND THE PROSECUTOR.
In Faretta
the court notes that a compelling reason not
to impose counsel upon a defendant who insists upon representing himself is that “[t]o force a lawyer on a defendant can only lead him to believe that the law
contrives against him.” 422 U.S. at 834
. During the in camera on-the-record
proceedings on June 18, 1992, Mr. Jackson, the appointed counsel who was “thrust upon” Mr. Jamal, actually did “contrive” against him, in
Mr. Jamal’s absence, by waiving the attorney/client privilege and actively plotting against his client with the prosecutor and trial judge.
It is hornbook law that the attorney/client privilege protects all confidential
communications between attorney and client and that the holder of the privilege is the client, not the attorney. The
attorney is duty bound to protect the client’s confidences “at every peril to himself.” In this case,
however, during the in camera hearing from which Mr. Jamal was excluded, Mr. Jackson repeatedly revealed confidential
communications with Mr. Jamal to the prosecutor and trial judge. Consider the following:
MR. JACKSON:
... if, indeed, Mr. Jamal is saying, as he has to me, that indeed it is his strategy for me not to participate
... I would want that on the record; that Mr. Jamal is telling me not to participate, to be silent.” (6/18/82
Tr. 2.6)
MR. JACKSON: ... that’s what he’s
telling me, Judge.
THE COURT: I know he’s telling you
that.” (6/18/82 Tr. 2.17)
“MR. JACKSON: Well, he
says it’s in his best interest ...” (6/18/82 Tr. 2.20)
“MR. JACKSON: ... but in this instance
where the defendant is specifically asking that I not ask questions ...” (6/18/82 Tr. 2.27)
The foregoing statements were made in the course of a discussion which took up thirty
pages of transcript in which Mr. Jackson attempted to explain to the prosecutor and Judge Sabo what he dimly perceived, but did not explicitly articulate, as a
conflict of interest which he had between his duty of loyalty to Mr. Jamal, as his client (MRPC Rule 1.7 and Comment re Loyalty to Client)
, and his duties as an officer of the court not to engage in what might be considered to be
unprofessional conduct (MRPC Rule 1.16(a)(1)
). It appears that the essence of this conflict was, according to Mr. Jackson that, on
the one hand, Justice McDermott had instructed him that it was his duty to represent Mr. Jamal’s interests to the best of his ability, but on the other hand
Mr. Jamal had instructed him not to examine any witnesses or participate in the trial in any way. (6/18/82 Tr.
2.5-2.35)
There are major problems with the way in which Mr. Jackson handled this situation, all
of which point to the necessity of protecting a defendant’s right to self-representation in order to prevent such situations from occurring. What Mr. Jackson
should have done, under the version of the American Bar Association’s Model Rules of Professional Conduct in effect at that time, was to advise the trial
judge of the general nature of the conflict of interest without revealing any confidential discussions with his client and then moved for leave to withdraw. (See
Comment to MRPC Rule 1.16 re Mandatory Withdrawal
: “Difficulty may be encountered if withdrawal is based on the client’s demand that
the lawyer engage in unprofessional conduct. The court may wish an explanation for the withdrawal, while the lawyer
may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement
that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”)
Mr. Jackson, however, did precisely the opposite! Not only did he gratuitously reveal
confidential attorney/client communications to the prosecutor and the trial judge, he did not move for leave to
withdraw. This is an additional oddity to the situation, given that previously he had repeatedly begged Judge Sabo
to let him out of the case. When it was unquestionably his ethical obligation, both to his client and to the court,
to request leave to withdraw he inexplicably failed to do so. Had the trial judge denied Jackson leave to withdraw, in such circumstances, he could have taken
an interlocutory appeal which should properly have been granted.
The actions of Mr. Jackson were even more egregious than previously noted, however,
because, in the course of these in camera discussions with prosecutor and judge, he made it crystal clear that his
real concern was not to find the means to reconcile his conflicting duties, but rather to figure out -- with the active contrivance of prosecutor and judge --
how to sabotage his client’s interests, facilitate his conviction, and, most importantly, insulate it from reversal on appeal.
Moreover, Mr. Jackson even suggests to Judge Sabo, in the form of a hypothetical, that his own client, Mr. Jamal, be removed from the courtroom. And, in fact, when the trial proceeds Mr. Jamal is removed a number of
times from the courtroom spending almost half the trial in a cell. If this interpretation of Mr. Jackson’s
conduct sounds harsh, consider the following extracts from the in camera proceedings:
THE COURT: What kind of strategy is that
to sit back there and refuse to answer anything? What kind of strategy is that really?
MR. JACKSON:
Judge, I wish I could answer you --
...
THE COURT: Well, what you may have to do,
if that’s going to be his strategy, and every
witness testifies, you may have to confer
with him and then you may have to put on the record that you have conferred with Mr. Jamal –
MR. JACKSON:
Fine.
THE COURT:
-- and he has instructed me not to ask any questions.
MR. JACKSON:
Fine.
THE COURT:
Maybe that’s the way. I don’t know.
MR. JACKSON:
Judge, I think –
THE COURT:
I really don’t know. I think it’s bad.
MR. JACKSON:
I do, too, Judge. But I think the Court is doing all it can do and in that way he
can’t come back and say, “I had ineffective representation, ‘when it’s clear
that’s what he wants. (6/18/82 Tr. 2.17-2.18)
THE COURT:
What he’s going to say is he’s arguing that because we didn’t allow John Africa to represent him, therefore, he doesn’t ask any questions and,
therefore, the whole proceeding is improper and
unconstitutional and everything else. This is what worries me.
MR. JACKSON: ... Judge, I understand your
worry.
MR. JACKSON: ... let’s
assume for the moment he was removed from the courtroom --
THE COURT:
What do you mean assume? He’s been removed. You mean from the courtroom?
MR. JACKSON: Yes, from the courtroom.
Mr. Jamal advises me not to ask any questions because it’s in his best interest not to do that, and let’s assume he’s going to be convicted and
goes up to the Supreme Court, or whatever. The question is, number one, did the Court — well, did he knowingly waive his
right, and -- I don’t think it could be any question about it and, number two, did I have any right to violate what he considered to be his best interests
and number three, can the Court on its own -- and I believe it’s
intruding into the area of the defense. (6/18/82 Tr. 2.20-2.22)
MR. JACKSON ... in this instance where
the defendant is specifically asking that I not ask questions ... one of the possible ways of doing it is after your examination I would then consult with Mr.
Jamal and based on his consultation and his advice and direction to me that I have no questions. It is his choice because I think for us to get into violating
what he chooses, what he asserts as his right and his interests, I think is going to put the Court
in a real tenuous position ... (6/18/82 Tr. 2.27)
MR. MCGILL: If
I can, Judge? The specific issue is where the defendant intelligently makes the decision –
THE COURT:
That’s the thing.
MR. MCGILL:
-- that it is in his best interest to say nothing –
MR. JACKSON:
That’s right.
MR. MCGILL:
-- that in his strategy to say nothing, and for that reason, perhaps to make a
statement by saying nothing and win the
sympathy of the jury that it would be in his best interest to get a verdict which he would want, which would be an acquittal.
THE COURT:
Well –
MR. MCGILL:
Is that what you said?
MR. JACKSON:
That’s it.
THE COURT:
I agree with that a 100 percent but what worries me is that he is adopting
this so-
called strategy solely because I have
refused to allow John Africa to represent him.
THE COURT:
“If John Africa had represented him there would be cross-examination and that’s
what worries me.“
(6/18/82 Tr. 2.29-2.30)
“MR. MCGILL:
... never has there been a case that I know of where no one has been cross-examined. And that is the issue
that you’re putting in.
MR. JACKSON:
Exactly.
MR. MCGILL:
Judge, that bothers me, that issue.
THE COURT:
Let me say this: Mr. Jackson, even though He’s doing this and you say he does it
intelligently and knowingly, isn’t he
in effect not being represented by anyone?
MR. JACKSON:
No.
THE COURT: Why?
MR. JACKSON:
Because I would make the representation to the Court.
THE COURT: You’re not really representing him, then. That’s what worries me. It’s just as though he were sitting there without counsel
THE COURT:
Why wasn’t this issue raised with Justice McDermott? (6/18/82 Tr.
2.32-2.35)
What does the above in camera proceeding
represent? Precisely the grotesque situation which the Faretta
court explains it is the purpose of the Sixth Amendment to prevent -- where counsel
“represents” the defendant only as a legal fiction, but really serves as an organ of the State “interposed
between an unwilling defendant and his right to defend himself personally.” 422 U.S. at 820-821.
It should be quite obvious why Mr. Jamal was excluded from these in
camera proceedings -- it is inconceivable that Mr. Jackson would have so shamelessly contrived against his client before the client’s very eyes as he so
readily did behind the client’s back. This deplorable record of Mr. Jackson’s literally “selling his client
down the river” belies Judge Sabo’s later findings of fact in which he discounts Jackson’s testimony at the PCRA hearing as allegedly intentional
misrepresentations to support Petitioner’s claim of ineffective representation. The reality is precisely to the
contrary -- Mr. Jackson actively contrived with both the prosecutor and Judge Sabo at trial to sabotage any such claims that Petitioner might later
raise.
It is in part because an attorney, as an officer of the court, always has a potential
conflict between their duty to their client and their duty to the court, that the Sixth Amendment protects one’s right to represent oneself and, as will be
argued below, one’s right to be assisted in that representation by a lay person who is not an attorney. Petitioner Jamal made that very point in the trial
court in passionately arguing in support of both of these rights:
It’s my life at stake and
John Africa is the only representative I would have faith in and trust in; not paid by the Court, not paid out of the same pocket as the D.A., not court
appointed. I want John Africa in this trial as backup counsel for me and I will defend myself. (6/17/82 Tr. 1.56-1.57)
I do not want to be backed up
or represented by Attorney Jackson or any other lawyer of the ABA anywhere in America. I want John Africa as my counsel.
(6/18/82 Tr. 1.59)
In terms of lawyers it’s very clear
that there are 1300 people at Holmesberg Detention Center, House of Correction. All of them have lawyers, either private or Public Defenders and it’s very
clear for those 1300 people that those lawyers have not served their needs in terms of obtaining freedom for them, in terms of finding them innocent of charges
... This is my only trial. I have no criminal record ... I have never been before the bar of the Court ... So what’s important to me to have is a
representative that I have faith in, that I can trust; it’s not Attorney Jackson ... It is John Africa ...
(6/18/82 Tr. 1.80-1.81)
If the foregoing is insufficient to demonstrate that it was the desperate and chillingly
kafkaesque situation of Petitioner Jamal -- on trial for his life with an incompetent and unprepared attorney appointed to “represent” him whom he rightly
had no confidence in and did not trust -- which was responsible for his repeated anguished pleas to Judge Sabo to allow him the assistance of John Africa at
counsel table so he could defend himself; consider the following: attorney Jackson brazenly admits to both prosecutor and trial judge, during voir dire of a juror who cannot get out of his mind what the newspapers
say about the case, that he doesn’t have a defense:
THE COURT:
The thing is can he set aside what the papers say?
MR. MCGILL: He
did say he felt there was a crime committed but didn’t know who did it.
MR. MCGILL:
Isn’t that your defense? That someone else did it?
MR. JACKSON: I don’t have a defense. 6/16/82 Tr. 399)
For Mr. Jamal’s attorney to have “no defense” in the midst of trial in an
eminently defensible case was the equivalent of the defense attorney in Nixon v. Singletary, --- So.2d ---, 2000 WL 63415 (Fla. 2000) having the
“strategy” of conceding his client’s guilt at the guilt/innocence stage of the trial without the client’s consent. The court in Nixon held that
to be per se ineffective assistance of counsel, the prejudicial effect of which is presumed.
E. MR. JAMAL WAS DENIED HIS CONSTITUTIONAL RIGHT TO HAVE A LAY PERSON ASSIST
HIM AT COUNSEL TABLE.
Mr. Jamal repeatedly moved the trial court to permit him to have the assistance of a lay
person, John Africa, at counsel table so that he could effectively represent himself. While such a request might, at first blush, seem unusual, particularly to
a lawyer or judge, it was well within the ambit of the ancient right to self-representation.
The right to have the assistance of a lay person when
representing oneself in court was well-recognized in English common law in existence at the time of formation of our Republic (a point brilliantly argued in the
case at bar in the brief of Amicus Curiae 22 Members of the British Parliament) and early codifications thereof in the Thirteen Colonies. Both this ancient common law and its
colonial codifications, according to the Faretta
court, are among the principal sources of
the right to represent oneself and/or have the assistance of counsel which is codified -- but not created -- by the
Sixth Amendment. See Faretta, supra, 422 U.S. at 831
: "If anyone had thought that the Sixth Amendment, as drafted, failed to protect the long
respected right of self-representation, there would undoubtedly have been some debate or comment on the issue. But there was none.”
Historically, the right to assistance of counsel was itself founded on the earlier right
to the assistance of one’s friends when pleading one’s own cause in the ancient law courts: “The first lawyers
were personal friends of the litigant, brought into court by him so that he might “take ‘counsel’ with them” before pleading.
Faretta
, 422 U.S. at 819
, citing 1 F. Pollock & F. Maitland, The History of English Law 211 (2d ed. 1909), the classic
historical treatise on the development of the English legal system. “Similarly, the first ‘attorneys’ were
personal agents, often lacking any professional training, who were appointed by those litigants who had secured royal permission to carry on their affairs
through a representative, rather than personally.” Id., citing Pollock & Maitland at 212-213
.
The Massachusetts Body of Liberties (1641), at Article 26, provided as follows:
“Every man that findeth himselfe unfit to plead his owne
cause in any Court shall have Libertie to imploy any man aginst whom the Court doth not except, to helpe him, Provided he give him noe fee or reward for his
paines ....” 422 U.S. at 827, n. 32.
The Pennsylvania Frame of Government of 1682, authored by William Penn and quoted
earlier herein, “perhaps ‘the most influential of the Colonial documents protecting individual rights,” similarly provided for the explicit right to have
the assistance of one’s “friends” in pleading one’s cause:
“That, in all courts all
persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves; or, if
unable, by their friends ....” 422 U.S. at 830, n. 37.
It should be evident from the legal history elucidated above, that the right to have the
assistance of a non-lawyer is necessarily implied in the right to represent oneself since the latter historically preceded the former; and both of these rights
pre-dated the right to be represented by a lawyer, a later right derived from the previous two. Moreover, our
self-reliant ancestors self-consciously wrote into the early colonial charters and state constitutions explicit statements of their right to self-representation
in the courts to protect themselves from the depradations of the professional lawyer who “was synonymous with the cringing Attorneys-General and
Solicitors-General of the Crown and the arbitrary Justices of the King’s Court, all bent on the conviction of those who opposed the King’s prerogatives, and
twisting the law to secure convictions.” Faretta
, 422 U.S. at 826, quoting C. Warren, A History of the American Bar 7 (1911).
Given that the right to self-representation was, in part, carried over into American law, from colonial charters, to state constitutions, and into the Sixth Amendment to the Federal Constitution, to protect people from lawyers, it would be self-contradictory and ahistorical to hold that one who exercises the right to represent oneself can only be assisted in that self-representation by a lawyer rather than a lay person. While a court may appoint a licensed attorney as “back-up” counsel for an indigent person exercising their right to self-representation (United States v. Dougherty