Anatomy of a Racist Frame-Up
The Case of Mumia Abu-Jamal
Appendix No. 11: 112 Questions for Leonard Weinglass
REMAND MOTION TO TAKE TESTIMONY FROM ATTORNEY
LEONARD WEINGLASS
INTRODUCTION
The numerous acts of sabotage directed against Appellant
Jamals case by his own Chief Counsel, Leonard Weinglass, could not have
been inadvertent or the results of negligence or incompetence on the part of
this highly-experienced criminal defense attorney. The nature of the conduct as
well as its frequency over the course of Weinglass representation of
Appellant Jamal demonstrates a pattern and practice of intentional sabotage.
The following list is not exhaustive but illustrative. It is literally the tip
of the iceberg. It is expected that additional evidence of Weinglass
conflicts of interest, breach of his duty of loyalty to his client, Appellant
Jamal, and other examples of his sabotage of Appellants case will emerge
from his testimony on remand.
1. When first retained to represent Mumia, Leonard Weinglass
refused to investigate evidence proving Mumias innocence.
Leonard Weinglass was retained as Mumias Chief Counsel in
1992 to initiate post-conviction review proceedings in state and federal court.
When Weinglass was first retained, attorney Rachel Wolkenstein informed him
that a witness to Faulkners shooting had been located who stated that
Mumia was innocent and that Faulkner had been the victim of a mob
hit, i.e. that Faulkner had been murdered by a hired killer acting on
behalf of organized crime. Weinglass refused to authorize investigation of this
lead because he felt it was too hot to handle. (Affidavit of Rachel
Wolkenstein, Docket #D-13.)(1)
2. When Weinglass had a signed confession in hand from the man who
actually killed Officer Faulkner (Declaration of Arnold Beverly) and a lie
detector test which corroborated it (Declaration of Dr. Charles Honts, Docket
#D-1A [Exhibit C])(2) which exonerated Mumia, Weinglass suppressed
it instead of presenting it to the courts.
The witness who provided the tip in 1992 that Faulkner had been
killed by the mob was a man named Arnold Beverly. In June of 1999,
Beverly finally admitted that it was he who killed Officer Daniel Faulkner and
signed a written confession, under penalty of perjury, in which he disclosed
that he had been hired, along with an accomplice, by organized crime and
corrupt police to murder Faulkner because the officer was an obstacle to the
pay-offs racket that corrupt police ran in downtown Philadelphia in
the 1980s. Beverlys confession gives a detailed account of how the
killing was carried out. He states that Mumia had nothing to do with it and did
not even arrive on the scene until after the shooting was over. (Confession of
Arnold Beverly, Docket #D-1A [Exhibit B].)
A wealth of evidence was in the possession of Weinglass which
corroborated Beverly, including not only the lie detector test results, but
also a declaration under penalty of perjury by Donald Hersing, the FBIs
key informant in its investigation of Philadelphia Police corruption which
resulted in the successful prosecution of 30 police officers, including the
Assistant Police Commissioner, the captain with authority over the downtown
area where Faulkner was assigned, the ranking officer at the crime scene
investigation, and the naming of the head of homicide as an unindicted
co-conspirator. (Declaration of Donald Hersing, Docket #D-1A [Exhibit
E].)
A stack of memoranda approximately the size of a
New York City phonebook were written by attorneys Wolkenstein and Piper and
their investigative staff detailing how this evidence corroborated the Beverly
confession (Docket #D-1A [Exhibit B].) These memos were discovered
in Leonard Weinglass files by the new legal team which replaced his in
May of 2001. No memoranda from Weinglass or his associate, Chief Legal
Strategist Daniel R. Williams, were found which take issue with the
Wolkenstein/Piper memos or call into question the accuracy and veracity of
Beverlys testimony.
3. Weinglass suppressed the recantation of testimony by Robert
Chobert, one of only two prosecution witnesses who testified at trial that they
saw Mumia shoot Officer Faulkner.
There were only two prosecution witnesses at Mumias trial
who testified that they saw him shoot the police officer. One was an
African-American street prostitute, Cynthia White, with many prostitution
convictions on her criminal record and several open cases who was obviously
vulnerable to police pressure to falsely incriminate Mumia; the other was a
white cab driver, Robert Chobert, who the prosecution argued to the jury was an
independent witness who had no reason to lie.
In 1995, before the state post-conviction hearings started before
the original trial judge, Albert Sabo, a defense investigator, George Michael
(Mike) Newman reported to Leonard Weinglass that he had personally interviewed
Chobert and Chobert had recanted his trial testimony and admitted that, not
only had he not seen the shooting, he had not been parked eastbound on Locust
Street behind the officers police car, where he might have had a clear
view of the incident, but was actually parked northbound on 13th Street, north
of its intersection with Locust, from which position the shooting incident
would have occurred southeast of him out of his line of sight. Chobert also
disclosed that what really happened was that he was inside his cab when he
heard shots. He exited the cab and looked eastward to where the shooting had
been. Chobert saw a Black man standing up next to a police car. When he went
over to see what had happened he saw a police officer lying on his back who had
been shot. (Declaration of George Michael Newman, Docket #D-21.) Newman states
in his declaration under penalty of perjury that he reported the details of
Choberts recantation to Weinglass before Weinglass put Chobert on the
witness stand at the 1995 post-conviction hearings before Judge Sabo.
(Declaration of George Michael Newman, Docket #D-21.) But Weinglass did not
question Chobert about his recantation of his trial testimony when Weinglass
called Chobert as a witness in 1995!(Notes of Testimony [of Robert
Chobert], Commonwealth vs Wesley Cook, Case No. 1357-1358, Philadelphia County
Court of Common Pleas, 8/15/95, hereinafter cited as N.T.).
When attorney Weinglass put Chobert on the witness stand on direct
examination he confined his examination to the prosecutions having
offered to help him get his license back and to the manner in which the police
had housed him in a hotel at the time of Petitioners trial and took him
back and forth between his work and the hotel. Weinglass asked no questions
about Choberts recantation to the investigator of his prior trial
testimony. (N.T. 8/15/95: 3-10) When the Assistant District Attorney attempted
during cross-examination to introduce into evidence Choberts prior
statements to police, attorney Weinglass objected on grounds that it was
outside the scope of direct examination. (N.T. 8/15/95: 12-13) On redirect
examination attorney Weinglass feigned an attempt to question Chobert about
whether his prior statements were true, but the question was not permitted by
Judge Sabo on grounds that Weinglass had not asked about that on direct
examination and the District Attorney had not asked the witness about the
substance of the prior statements but only to identify them. (N.T. 8/15/95:
25-27)
Weinglass then went to Newman, who was waiting in the hall outside
the courtroom in case his testimony was needed should Chobert deny the
recantation, and told him that he could leave because Weinglass had
successfully got everything out of Chobert that he needed.
(Declaration of George Michael Newman, Docket #D-21.)(3)
Having suppressed Choberts recantation at the 1995 hearings
when he could have questioned Chobert about it in open court, Weinglass also
made no mention of it in the federal habeas corpus petition that he filed in
federal court in 1999 to review the refusal of the Pennsylvania courts to
overturn Mumias conviction or death sentence. However, in Weinglass
federal habeas petition he advances, as the first of his 29 claims for
relief, a claim that the prosecution violated Mumias constitutional
rights by manipulating its witnesses, namely Robert Chobert and Cynthia White
to lie and falsely accuse Mumia of the Faulkner murder at Mumias trial.
Yet he buried evidence which proved that one of these witnesses lied, the
witness own recantation, instead of presenting it to the court when he
had the witness on the witness stand.
4. Weinglass suppressed the declaration under penalty of perjury
by Mumias brother, William Cook, dated May 1999, in which Cook disclosed
that Kenneth Freeman had been the passenger in Cooks car at the time of
the Faulkner shooting and had confessed to Cook that he, Freeman, had
participated in the shooting.
When Mumias present attorneys took over his representation
in May of 2001, not only did they find the signed confession of Arnold Beverly
in Leonard Weinglass files, described above, they also found a signed
statement by William Cook, Mumias brother, in which he disclosed that
there was a passenger in his car on December 9, 1981, when he was stopped by
Officer Faulkner, and the passenger was his business partner Kenneth Freeman.
According to Cook, Freeman fled the scene after Faulkner was shot and,
subsequently, confessed to Cook that he, Freeman, had been part of a plot to
kill the police officer, was armed that night, and participated in the
shooting. Cooks declaration also states that neither Mumia nor Cook shot
the police officer. (Declarations of William Cook, dated May 15, 1999, and
April 29, 2001, Docket #D-1A [Exhibit D].)
5. Weinglass discouraged William Cook from testifying at the 1995
post-conviction hearings and then misrepresented to the court that Cook had
failed to appear for fear of being arrested on an outstanding warrant.
William Cook states in a declaration under penalty of perjury that
he was expecting to testify at the 1995 post-conviction hearings, but Leonard
Weinglass didnt want him to testify and, as a consequence he did not.
(Declaration of William Cook, April 29, 2001, Docket #D-1A [Exhibit
D].) Weinglass misrepresented to the court that Cook was
unavailable to testify because he had disappeared for fear of being
arrested on an outstanding warrant and could not be found. This same
misrepresentation is written into the federal habeas petition that Weinglass
filed in 1999. However, Rachel Wolkenstein states in her affidavit that
Cooks whereabouts were always known and he could easily have been found
and placed on the witness stand. (Affidavit of Rachel Wolkenstein, Docket
#D-13.) Private Investigator Mike Newman states in his declaration that, after
Cook did not appear to testify at the 1995 hearings, he offered to find Cook,
but Weinglass refused to authorize such investigation. (Declaration of George
Michael Newman, Docket #D-21.)
6. Weinglass failed to put on evidence through the testimony of
Arnold Howard that the prosecutions star witness, Cynthia White, had
twice picked Kenneth Freeman out of a line-up within a day of the shooting of
Officer Faulkner and the police had tested Freemans hands for gunpowder
residue.
In the 1995 post-conviction hearings before Judge Sabo it was
revealed by the prosecution that a temporary drivers license in the name
of Arnold Howard was found on Faulkners body. Howard was called as a
witness by Leonard Weinglass and testified that he had loaned his temporary
license to Kenneth Freeman. Howard stated that both he and Kenneth Freeman were
picked up by police after the Faulkner shooting and were in a line-up together.
Although Howard told Weinglass before he was called to testify that Cynthia
White, the star prosecution witness, had twice picked Freeman out of the
line-up, Weinglass never asked about this, instead limiting his questioning to
eliciting that a black woman had picked Freeman out. Although
Howard had also told Weinglass that the police tested Freemans hands for
gunpowder residue, Weinglass never asked about this when he had Howard on the
witness stand. (Declarations of Arnold Howard, Docket #D-20, D-25.)
7. Weinglass failed to present any claim of ineffective
representation against Mumias trial attorney for failing to impeach
Cynthia White with her prior testimony at William Cooks trial concerning
the passenger in Cooks car (Kenneth Freeman).
The prosecutions case against Mumia Abu-Jamal at trial was
based upon the assumption that there were only two people other than Officer
Faulkner present at the crime scene: Mumia and his brother William Cook. Since
the prosecution excluded Cook as a suspect, the only person left who could have
shot the officer was Petitioner Jamal. This is the argument which prosecutor
McGill made to the jury (N.T. 7/1/82: 172) and had previously made in pretrial
proceedings to successfully oppose Petitioners repeated motions for a
line-up. (N.T. 1/5/82: 17)
However, contrary to the prosecutions theory, there was at
least one other person present who could have shot the police officer, the
passenger in William Cooks car. In her prior testimony at William
Cooks trial, Cynthia White revealed that there was a passenger in
Cooks car when it was stopped by Officer Faulkner.
Although Cynthia White had revealed the existence
of the passenger in her prior testimony at Cooks trial under questioning
by prosecutor McGill, she made no reference to his existence when she testified
at Petitioners trial, in fact she falsely stated that no one else was
present. (N.T. [White] 6/21/82: 4.106)
Had Jackson proved up the existence of the
passenger by cross-examining White as to her prior testimony at William
Cooks trial it would have destroyed the key assumption underlying the
prosecutions case against Mumia, i.e., that no one else was present who
could have shot the officer. Proving up the presence of the passenger would
also have raised more than reasonable doubts about the credibility of the
prosecutions witnesses and the good faith of the prosecution itself. It
would have shown Cynthia White to be lying under oath in front of the jury in
order to conceal the existence of the passenger. And it would have suggested an
intentional frame-up by the prosecution since Assistant District Attorney
McGill prosecuted both Cook and Mumia and had to have known that White was
lying to the jury by concealing the passengers existence and denying that
anyone else was present.
It is obvious from the transcript of Mumias trial that while
defense attorney Jackson was cross-examining Cynthia White he had in his hands
the transcript of her prior testimony in the trial of William Cook. Jackson
specifically refers White to that testimony: I refer you to the notes of
testimony, March 29, 1982, page 41.(4) (N.T. 6/22/82: 5.93) That Jackson
used the transcript from William Cooks trial during his cross-examination
of witnesses in Petitioner Jamals trial is also proved from
Jacksons reference to the Cook transcript in his cross-examination of Mr.
Scanlon. (N.T. 6/25/82: 8.67)
Not only was Jackson ineffective for not proving up the existence
of the passenger in cross-examination of Cynthia White, he was even more
ineffective for not calling William Cook as a witness. Obviously, if there was
a passenger in William Cooks car, Cook had to know who the passenger was.
Cook should have been called as a witness to identify the passenger. Once the
passenger was identified, a subpoena could then have been served to require the
passenger to appear as a witness. The passenger could then be asked in front of
the jury if it was he who shot Officer Faulkner. Whether the passenger
admitted, denied or took the Fifth Amendment, the effect on the jury would have
been to raise a reasonable doubt in either instance and a conviction of Mumia
under these circumstances would have been unlikely assuming that the jury
obeyed their instructions to vote not guilty if the prosecution
failed to prove its case beyond a reasonable doubt.
Now that we know the passenger was Kenneth Freeman, who confessed
to Billy Cook that he had been part of a plot to shoot Faulkner and had
participated in the shooting, it should be obvious what a difference it would
have made in Mumias trial if this evidence had been placed before the
jury. The trial should have ended in a verdict of not guilty based
on reasonable doubt.
Leonard Weinglass should have known all of this
from reviewing the transcript of Mumias trial and Cooks trial and
should have known that Mumia had a strong claim for ineffectiveness of counsel
for his trial attorneys failure to bring these matters out at his trial.
Yet, Weinglass put forward no claim of ineffective representation by Jackson
for his failure to cross-examine Cynthia White about the passenger, nor his
failure to call William Cook to identify the passenger, nor his failure to call
the passenger himself as a witness and ask if he shot Officer Faulkner. Nor did
Weinglass question Jackson during the evidentiary hearing in 1995 about why he
did not take these obvious steps during Mumias trial.
8. Weinglass refused to authorize investigation of Kenneth
Freemans involvement in the murder of Police Officer Faulkner because
Weinglass had received a death threat from Freemans brother.
Both private investigator George Michael Newman and attorney
Rachel Wolkenstein have stated in declarations under penalty of perjury that
Leonard Weinglass reported to them that he had received a death threat to
dissuade him from presenting any evidence that would implicate Kenneth Freeman
in the murder of Officer Faulkner. (Declaration of George Michael Newman,
Docket #D-21; Affidavit of Rachel Wolkenstein, Docket #D-13.) Wolkenstein
states that Weinglass told her the threat came from Freemans brother.
Newman states he suggested to Weinglass several times that he investigate
Freemans involvement in the murder, but Weinglass refused to authorize
such investigation on grounds that the death threat he had received presented a
risk that he was unwilling to take.
9. Weinglass failed to object to Judge Sabos order, during
the 1995 post-conviction hearings, turning the physical evidence over to the
police.
During the 1995 post-conviction proceedings, Judge Sabo ordered
that the physical evidence be turned over by the court clerk to the
Philadelphia Police, supposedly so that arrangements could be made for the
evidence to be inspected by attorneys for both sides. (Commonwealth vs Wesley
Cook, Court of Common Pleas of Philadelphia County, Case No. 1357-1358, Docket
#D-45, July 20, 1995.) This broke the chain of custody of the evidence and
provided the police with ample opportunity to tamper with the physical
evidence, including the bullets and bullet fragments allegedly recovered from
Officer Faulkner, Mumia, and the crime scene.
Leonard Weinglass failed to object to this order.
10. Weinglass used a ballistics and firearms expert at the 1995
post-conviction hearings who refused to examine the physical evidence,
foreordaining denial of Claim 6(B)(1) of Weinglass federal habeas
petition by failing to provide sufficient proof of what a ballistics expert
could have added to Mumias defense at trial.
Although one of the principal legal claims Weinglass raised on
behalf of Mumia was that he had been framed, Weinglass called as
his only ballistics and firearms expert one George Fassnacht, who refused to
examine the physical evidence even when the prosecution offered to provide it
to him.
Weinglass failure to have his own expert examine the
physical evidence foreordained that Claim 6(B)(1) of Weinglass own
federal habeas petition would be denied as he failed to provide adequate
evidence of what a firearms and ballistics expert would have added to
Mumias defense at trial.
11. After his ballistic experts testimony on direct and
cross-examination was concluded before lunch, Weinglass put him back on the
witness stand after lunch and thereby provided the prosecution with the
opportunity to use his own expert to destroy what was then among the strongest
evidence in Mumias favor, that the medical examiner had previously
identified the bullet that killed Faulkner as a .44 caliber which could not
have been fired from Mumias .38 caliber revolver.
Weinglass direct examination and the
District Attorneys cross-examination of Weinglass ballistics
expert, Fassnacht, was concluded before the lunch recess. Instead of excusing
the witness to shield him from any further questioning by the D.A., Weinglass
told the court that he wanted to conduct re-direct examination after the lunch
break. When court resumed, Weinglass put Fassnacht back on the witness stand,
asked him a number of questions, the vast majority of which were relatively
unimportant and all of which could and should have been asked on direct
examination. The D.A. then had the opportunity for re-cross-examination and
elicited from Fassnacht that, based upon its diameter at the base, the bullet
which killed Officer Faulkner was not a .44 caliber and, instead, was
consistent with being a .38 caliber (the same caliber as
Mumias revolver). (N.T. [Fassnacht], 8/2/95: 154-171.)
Not only was there no reason to have put Fassnacht back on the
witness stand and provided the District Attorney with the opportunity they had
missed before lunch, Weinglass did not question Fassnacht about his use of the
term consistent which is a classic qualifier used by expert
witnesses. Weinglass, allegedly an expert on ballistics and firearms himself
based upon his 50+ years as a criminal defense attorney, could have asked
Fassnacht to explain that the bullet was also consistent with being
a .357 magnum, a 9 mm, or a .380 caliber bullet, none of which could be fired
from Mumias gun. Yet Weinglass failed to ask such questions, leaving the
impression that his own expert had destroyed an important claim by the defense
and proved up a point crucial to the prosecution.
Any attorney with even minimal experience and minimum preparation
would have reviewed with their expert, before putting him on the witness stand,
what answers he would give on relevant issues and anticipated questions from
the other side. Weinglass had to have considered the possibility that the D.A.
would ask such questions and had to have known that Fassnacht would answer the
D.A.s questions as he did. Given that knowledge, there was simply no
reason for Weinglass not to have excused the witness before lunch after the
D.A. finished his cross-examination.
Moreover, Weinglass should have thoroughly
reviewed the .38 caliber issue with his expert before the expert testified so
the expert himself would have suggested the other possible calibers to the D.A.
instead of limiting his answer to the deceptive consistent with a .38
caliber response. Instead, Weinglass permitted his own expert to testify
as if he were an expert for the prosecution instead of the defense. With even
less justification, Weinglass failed to follow-up with his expert after
re-cross-examination to clarify the consistent qualifier in the
experts testimony.
12. Weinglass did not call Mumia as a witness at the 1995
post-conviction hearings, instead advising Mumia not to testify.
Mumia had advised attorney Weinglass and attorney Williams that he
was innocent, did not want to be executed or spend the rest of his life in
prison, and had instructed them to seek to establish his innocence and secure
his freedom. He trusted in attorneys Weinglass and Williams, had faith and
confidence in them and in their professional judgment. Had attorneys Weinglass
and Williams advised him to testify at the PCRA hearing in 1995 he would have
done so. The only reason that he did not testify at the PCRA hearing is because
attorneys Weinglass and Williams advised him not to testify. (Declaration of
Mumia Abu-Jamal, Docket #D-1 [Exhibit A]; Petition for
Post-Conviction Relief and/or Writ of Habeas corpus [Corrected Copy], Paragraph
486.) Mumia repeatedly stated on the record at the PCRA hearing, in response to
questioning from Judge Sabo, that he was declining to testify on the advice
of counsel. (N.T. [Jamal] 8/11/95, pages 5-9)
In the light of the evidence adduced by the prosecution at
Mumias original trial and, in particular, in light of the fact that Mumia
was found shot at the scene supposedly by a bullet from Police Officer
Faulkners gun and that no defense case had been advanced at Mumias
original trial, Mumia had no choice other than to testify at the original PCRA
hearing if he was to have any prospect of establishing his actual innocence.
Additionally, presenting Mumias testimony that he was innocent would have
placed his claims that he did not have a fair trial in a much different context
that would have defused the District Attorneys constant references to
Mumia as a convicted copkiller.
Saving such testimony for a re-trial makes no sense as
there would not be a re-trial unless Mumia were successful in obtaining
post-conviction relief in the Pennsylvania Courts or federal habeas
relief in the federal courts.
13. Weinglass failed to put forth in the federal habeas petition a
claim that Mumias constitutional rights were violated at trial when Judge
Sabo abrogated his right to defend himself.
Weinglass never put forth a claim in the federal
habeas petition that Mumias constitutional right to defend himself at
trial, under the Supreme Court decision in Faretta v. California (1975)
422 US 806, was violated when Judge Sabo removed Mumia as his own attorney and
forced a court-appointed attorney on him. Mumias attorney on direct
appeal violated his right to effective representation by failing to raise this
point and Weinglass should have made an ineffectiveness claim against her as
well, but failed to do so.
This was a very strong and highly important legal
claim because, not only did the revocation of Mumias right to represent
himself deform the entire trial and result in Mumia being excluded from the
courtroom by the judge for approximately half the trial, but it is a
structural claim which does not require a finding of
prejudice. In other words, in order to win on this claim, which
would overturn Mumias conviction, Mumia need not prove that he would have
won his trial had he represented himself, he need only show that his right to
represent himself was violated.
There was no justification for denying Mumia the right to
represent himself although the judge falsely claimed that Mumia had been
disruptive. The prosecutor himself indicated that the only reason to put
Jackson, the back-up attorney (an advisor appointed by the judge to
assist Mumia in representing himself) in charge of the case would be to give
him standing to request the Pennsylvania Supreme Court to clarify his role as
back-up counsel. The prosecutor specifically said to Judge Sabo
that once such clarification was 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. (N.T. 6/17/82: 1.120) Just prior to saying this, the prosecutor
acknowledged Mumias desire to represent himself and advised the judge of
his own feeling that Mr. Jamal would accept the Supreme Courts decision.
(N.T. 6/17/82: 1.119) Had Mumia 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 Courts decision.
However, Leonard Weinglass never raised this extremely strong
constitutional claim which, if granted, would overturn Mumias
conviction.(5)
14. Weinglass failed to cite the proper legal authority in support
of his claim in the federal habeas petition that Mumias constitutional
rights were violated when Judge Sabo took the voir dire out of
Mumias hands during jury selection, permitting the District Attorney to
misrepresent to the court that there was no legal authority to support that
claim.
Claim 11 in Weinglass federal habeas
petition alleges that Mumias right to represent himself was violated when
the trial judge took the voir dire (questioning of jurors
during jury selection) out of his hands and made Mumia choose between the judge
or his court-appointed back-up attorney conducting the voir
dire. Although Weinglass cites the correct Supreme Court decision in
support of that claim, McKaskle v. Wiggins, 465 US 168 (1984), he failed
to quote to the court the specific part of that decision in which the Supreme
Court listed participating in voir dire as one of the rights
that a defendant representing himself has under Faretta v. California.
(Extract from Petitioners Memo of Law in Support of Habeas
Petition re Claim 11.)
This permitted the District Attorney to
misrepresent the law to the court by pointing out that Weinglass had cited no
specific legal authority in support of his claim that there is a constitutional
right for a defendant representing himself to voir dire
(question) potential jurors personally during the jury selection process.
(Extract from Respondents Memo of Law in Opposition to Habeas
Petition re Claim 11.)
Weinglass failed to respond to this claim by the prosecution and
did not cite to the court the language from McKaskle which specifically
recognizes that right.(6)
15. While still representing Mumia, Weinglass assisted his
associate, Daniel Williams, in putting together Williams perfidious book,
Executing Justice, which suggests that Mumia is guilty and which was the reason
that Mumia fired Weinglass and Williams.
In March/April of 2001, Mumia discovered that attorney Williams
was about to publish a book about his case entitled Executing Justice. When
Mumia, after repeated requests to Williams, was finally provided a
pre-publication copy of the book to read, he found that it falsely represented
the facts of his case, disclosed confidential information, and repeatedly
implied that Mumia was guilty. When Leonard Weinglass refused to take any
action to stop publication of the book, despite Mumias requests that he
do so, Mumia fired the entire legal team and retained his present attorneys:
Nick Brown, a British barrister based in London; Eliot Lee Grossman, a
California attorney based in Los Angeles; Marlene Kamish, a Chicago attorney;
and J. Michael Farrell, a Philadelphia attorney retained as local counsel.
The publication of this book was in direct violation of Rule 1.8
of the Pennsylvania Rules of Professional Conduct which prohibits an attorney
from even entering into a contract to publish a book about a current case
because of the inherent conflict of interest in so doing, i.e. what will
motivate sales of the book may not be in the best interests of the
attorneys client.
Although Williams claimed that Mumia consented to
publication, this is an utter falsehood which is proved by the fact that Mumia
immediately filed a lawsuit against Williams and his publisher in an attempt to
stop publication.(7) Moreover, since publication of the book was a
conflict of interest Mumia could not have consented to publication
as a matter of law. Indeed Weinglass and Williams concealed their conflict of
interest from Mumia with regard to the book by falsely telling him that
publication of the book was in his interests.
In a letter to Mumia, Weinglass acknowledged that the book was a
pre-emptive strike against the witness that Weinglass and Williams
had blocked from coming forward, i.e. Arnold Beverly. (Weinglass
letter to Jamal, dated February 22 [2001], Docket #D-1A [Exhibit
H].)
Although Weinglass denied that he had anything to do with the
writing of the book, and was only given a copy by Williams shortly before
publication when it was in galley proofs, Williams in a sworn statement filed
in Mumias lawsuit against him and the publisher, states that Weinglass
helped him put the book together and never told him that the book would be
harmful to Mumia. (Affidavit of Daniel R. Williams, Docket #D-1A [Exhibit
I].)
The principal theme of the book, according to Williams, is
ambiguity:
Ah, ambiguity, [Cornel] Wests proclamation [of
Mumias innocence] begs the question: is Mumias stature as a writer,
the truth of his message, unworthy of attention if he is guilty of
firing a bullet into the brain of a young police officer? Does guilt for such
an act necessarily muffle this voice for social justice? Or can such a guilty
man nonetheless still speak to us, clearly and credibly? Indeed, even if his
guilt somehow justifies extinguishing his right to remain alive, does it
extinguish the worth of his message? Does Mumias worthiness, in short, as
a voice for the voiceless depend upon his innocence? If so, why?
Daniel R. Williams, Executing Justice (St. Martins
Press, 2001), xvi. (Docket #D-1A [Exhibit G].)
However, the ambiguity in Mumias case was
injected into it by Weinglass and Williams when they buried the evidence that
proves Mumia is innocent.
OFFER OF PROOF: 112 QUESTIONS FOR LEONARD WEINGLASS
Appellant Mumia Abu-Jamal, by and through his
Counsel of Record herein, hereby makes the following Offer of Proof:
If attorney Leonard Weinglass is called as a
witness on remand, as requested in this motion, and if he is sworn to tell the
truth and does testify truthfully, he will answer in the affirmative to the
following questions; should he fail to so testify then his testimony would be
impeached by the evidence cited above in Appellants remand motion or to
be presented on remand:
1. Do you agree or disagree with the following statement made by
Daniel Williams, your co-counsel when you represented Mumia Abu-Jamal, at a
public meeting in New York in the summer of 2000: In death penalty
litigation, innocence is the name of the game?
2. Is it not true that, in death penalty litigation, the Courts
are more likely to give more favorable consideration to legal claims that a
defendant had an unfair trial and his constitutional rights were violated, if
the Courts think that the defendant is or may be innocent, in particular, if
the defendant has been convicted of killing a police officer?
3. Is it not true that, in a statutory declaration sworn under
penalty of perjury dated May 2, 2001, and filed in court by his present
attorneys on May 4, 2001, after he had fired you and Daniel Williams as his
attorneys, Mumia Abu-Jamal declares his innocence and sets forth his version of
what happened on December 9, 1981?
4. Is it not true that, in the 1995 state post-conviction
proceedings, Mumia Abu-Jamal did not testify and that the reason why he did not
testify is that you advised him not to testify?
5. Is it not true that, during Mumia Abu-Jamals original
trial in June 1982, attorney Jackson failed to present any positive defense
case that Mumia was innocent?
6. Is it not true that, between 1992 and May 4, 2001, whilst you
represented Mumia Abu-Jamal, you never raised attorney Jacksons failure
to present any positive defense case that Mumia was innocent as a claim of
ineffective assistance of counsel on the part of attorney Jackson?
7. Is it not true that, between 1992 and May 4, 2001, whilst you
represented Mumia Abu-Jamal, you failed to present any positive defense case
that Mumia was innocent?
8. Is it not true that, in the 1995 state post-conviction
proceedings and the subsequent federal habeas proceedings, you presented claims
to the Courts that Robert Chobert and Cynthia White, the only two prosecution
eyewitnesses who claimed actually to have seen Mumia Abu-Jamal
shoot Police Officer Faulkner, had lied and given perjured testimony?
9. Is it not true that defense investigator, George Michael
Newman, interviewed Robert Chobert before the 1995 state post-conviction relief
proceedings when you were representing Mumia Abu-Jamal?
10. Is it not true that, when Michael Newman
interviewed Robert Chobert before these state post-conviction proceedings,
Robert Chobert retracted the testimony which he had given at Mumia
Abu-Jamals original trial in 1982 and admitted not only that he had not
seen the shooting, but also that he had not even been on the same side of the
street when the shooting occurred?
11. Is it not true that you put Robert Chobert on the witness
stand to testify during the 1995 state post-conviction proceedings?
12. Is it not true that, when you put Robert Chobert on the
witness stand at the 1995 hearing, Michael Newman was outside court expecting
to testify as to how, when he, Newman, had interviewed Chobert, Robert Chobert
had retracted the testimony which he had given at Mumia Abu-Jamals
original trial, if Robert Chobert denied that he had made such a retraction
when he was on the witness stand?
13. Is it not true that, on direct examination, you failed to put
to Robert Chobert that he had retracted his trial testimony when he had been
interviewed by Michael Newman?
14. Is it not true that, after Robert Chobert had testified at the
1995 state post-conviction proceedings and after you had failed to put to
Robert Chobert that he had retracted his trial testimony when he had been
interviewed by Michael Newman, you went outside court and you falsely told
Michael Newman that you did not require him to testify at the state
post-conviction proceedings, because you had got everything out of
Chobert when he, Robert Chobert, had testified?
15. Is it not true that, in March 1982, when Billy Cook was tried
for assaulting Police Officer Faulkner on December 9, 1981, Cynthia White
testified that there was a passenger in Billy Cooks car when he was
stopped by Police Officer Faulkner?
16. Is it not true that, at Mumia Abu-Jamals trial in June
1982, Cynthia White contradicted her previous testimony by stating that no one
else was present at the crime scene other than Mumia and Billy Cook?
17. Is it not true that the prosecutor at both Billy Cooks
assault trial in March 1982 and Mumia Abu-Jamals own trial in June 1982
was the same person, Assistant District Attorney McGill?
18. Is it not true that, at Mumia Abu-Jamals trial in June
1982, attorney Jackson had the transcript of Cynthia Whites testimony at
Billy Cooks assault trial in his hands as he cross-examined Cynthia
White, but he failed to impeach Cynthia Whites testimony at Mumias
trial with her earlier testimony at Billy Cooks trial that there was a
passenger in Billy Cooks car when he was stopped by Police Officer
Faulkner?
19. Is it not true that, if attorney Jackson had impeached Cynthia
Whites testimony at Mumias trial with her earlier testimony at
Billy Cooks trial that there was a passenger in Billy Cooks car
when he was stopped by Police Officer Faulkner,
(A) this would have clearly demonstrated to the jury that Cynthia
White was knowingly giving perjured testimony so as to falsely incriminate
Mumia?
(B) this would have clearly demonstrated to the jury that
Assistant District Attorney McGill had knowingly suborned perjury from Cynthia
White?
(C) this would have entirely undercut the essence of the
prosecutions case against Mumia Abu-Jamal, namely that only Mumia could
have shot Police Officer Faulkner, because, apart from Billy Cook (who the
prosecution had not even charged with the killing), no one other than Mumia was
present at the crime scene?
(D) this would have completely undermined the integrity of the
prosecution case against Mumia Abu-Jamal?
(E) this evidence alone would [have] made it almost impossible for
the jury at the original trial to have found Mumia Abu-Jamal guilty beyond a
reasonable doubt?
20. Is it not true that attorney Jacksons failure to impeach
Cynthia Whites testimony at Mumias trial with her earlier testimony
at Billy Cooks trial that there was a passenger in Billy Cooks car
when he was stopped by Police Officer Faulkner amounted to ineffective
assistance of counsel on the part of attorney Jackson?
21. Is it not true that you never raised attorney Jacksons
failure to impeach Cynthia Whites testimony at Mumias trial with
her earlier testimony at Billy Cooks trial that there was a passenger in
Billy Cooks car when he was stopped by Police Officer Faulkner as a claim
of ineffective assistance of counsel on the part of attorney Jackson?
22. Is it not true that one of the major arguments which the
prosecution have used against Mumia Abu-Jamal is that, although his brother,
Billy Cook, was present at the crime scene, Billy Cook has never testified on
behalf of Mumia?
23. Is it not true that, in the 1995 state post-conviction
proceedings, Judge Sabo justified upholding Mumia Abu-Jamals conviction,
at least in part, upon the grounds that he was entitled to draw an adverse
inference from your failure to call Billy Cook to testify?
24. Is it not true that, in May 1999, Billy Cook swore a statutory
declaration under penalty of perjury dated May 15, 1999, stating that the
passenger in the car was Kenneth Poppi Freeman and that, sometime after
December 9, 1981, Kenneth Poppi Freeman had confessed to him that there had
been a plot to kill the police officer, and that he, Freeman, was part of the
plot, had been armed that night, and had participated in the shooting?
25. Is it not true that, in a further statutory declaration sworn
under penalty of perjury dated April 29, 2001, and filed in court by his
present attorneys on May 4, 2001, after Mumia Abu-Jamal had fired you and
Daniel Williams as his attorneys, Billy Cook confirmed that the passenger in
the car was Kenneth Poppi Freeman, that, sometime after December 9, 1981,
Kenneth Poppi Freeman had confessed to him that there had been a plot to kill
the police officer, and that he, Freeman, was part of the plot, had been armed
that night, and had participated in the shooting, that Mumia Abu-Jamal did not
shoot the police officer, that Mumia Abu-Jamal did not interfere in anything
between him and the police officer, and that he, Billy Cook, had had nothing to
do with the shooting?
26. Is it not true that attorney Jackson failed to
interview Billy Cook before Mumia Abu-Jamals original trial in June 1982?
27. Is it not true that attorney Jackson failed to
put Billy Cook on the stand during Mumia Abu-Jamals trial in June 1982?
28. Is it not true that you never raised either
attorney Jacksons failure to interview Billy Cook before Mumia
Abu-Jamals original trial in June 1982 or attorney Jacksons failure
to put Billy Cook on the stand during Mumia Abu-Jamals trial as a claim
of ineffective assistance of counsel on the part of attorney Jackson?
29. Is it not true that you never filed in court
Billy Cooks statutory declaration under penalty of perjury dated May 15,
1999?
30. Is it not true that, thereafter, the whereabouts of Billy Cook
were always known by you or readily ascertainable by you and that you
subsequently personally met with Billy Cook on at least one occasion?
31. Is it not true that in the federal habeas petition
which you filed on behalf of Mumia Abu-Jamal in 1999 you sought to explain your
failure to present Billy Cooks evidence to the court by falsely claiming
that Billy Cook had disappeared?
32. Is it not true that, in 1981, Kenneth Poppi Freeman was Billy
Cooks business partner?
33. Is it not true that, by the time of the 1995 state post-
conviction proceedings, it was known by you that, after the shooting, the
driving license of one, Arnold Howard, had been found on the body of Police
Officer Faulkner?
34. Is it not true that you called Arnold Howard to testify at the
1995 state post-conviction hearings?
35. Is it not true that, at the 1995 state post-conviction
hearings, Arnold Howard testified that, sometime prior to December 9, 1981, he
had lent his driving license to Kenneth Freeman?
36. Is it not true that, at the 1995 state post-conviction
hearings, Arnold Howard testified that both he, Howard, and Kenneth Freeman had
been picked up by the police after the Faulkner shooting, that, whilst they
were in police custody, he and Kenneth Freeman had been placed in police line
ups, and Kenneth Freeman was twice picked out of the line ups as the person who
had shot Police Officer Faulkner?
37. Is it not true that, in a statutory declaration sworn under
penalty dated August 31, 2001, Arnold Howard has stated that the person who had
picked Kenneth Freeman out of these police line ups as the person who had shot
Police Officer Faulkner was Cynthia White and that he, Howard, had told you,
Leonard Weinglass, this before he testified in 1995?
38. Is it not true that, when Arnold Howard testified in 1995, you
failed to elicit from him that it was Cynthia White who had picked Kenneth
Freeman out of these police line ups as the person who had shot Police Officer
Faulkner?
39. Is it not true that, in his statutory declaration sworn under
penalty dated August 31, 2001, Arnold Howard has stated that the police tested
Kenneth Freemans hands for gun powder when he was detained shortly after
the Faulkner shooting and that he, Howard, had told you, Leonard Weinglass,
this before he testified in 1995?
40. Is it not true that, when Arnold Howard testified in 1995, you
failed to elicit from him that the police tested Kenneth Freemans hands
for gun powder when he was detained shortly after the Faulkner shooting?
41. Is it not true that, in 1995, you told, amongst others, your
then co-counsel Rachel Wolkenstein and defense investigator Michael Newman that
you had received a death threat from Ron Freeman, the brother of Kenneth
Freeman, who had told you that you would be killed if you presented any
evidence on behalf of Mumia Abu-Jamal which implicated Kenneth Freeman in the
shooting?
42. Is it not true that, between 1992 and May 4, 2001, whilst you
represented Mumia Abu-Jamal, you never raised attorney Jacksons failure
to put Kenneth Freeman on the witness stand at the original trial and to accuse
him of shooting Police Officer Faulkner as a claim of ineffective assistance of
counsel on the part of attorney Jackson?
43. Is it not true that, on July 20, 1995, the Court ordered the
Clerk of the Quarter Sessions to release into the custody of the Commonwealth
of Pennsylvanias representative, Detective Joseph Walsh, all of the trial
exhibits and attachments currently within the courts custody?
44. Is it not true that this Court Order was extraordinary,
because it ordered the release of the physical evidence in the case into the
custody of one of the parties in the case, thereby breaking the chain of
custody and providing an opportunity for the Commonwealth, one of the parties
in the case, to tamper with this physical evidence?
45. Is it not true that you failed to object to this Court Order
being made?
46. Is it not true that, in any event, you refused to inspect any
of this physical evidence?
47. Is it not true that, during the 1995 state post-conviction
proceedings, you put a ballistics expert, Mr. Fassnacht, on the witness stand
to testify on Mumia Abu-Jamals behalf when he, Mr. Fassnacht, had refused
personally to examine the physical evidence upon which he was supposedly
offering his expert opinion?
48. Is it not true that, in June 1999, whilst you were
representing Mumia Abu- Jamal, Arnold Beverly swore a statutory declaration
under penalty of perjury confessing to the killing of Police Officer Faulkner
and completely exonerating Mumia Abu-Jamal and that you had this statutory
declaration in your possession from June 8, 1999, onwards?
49. Is it not true that, by June 8, 1999, Arnold Beverlys
confession was corroborated by the results of a lie detector test conducted by
the leading polygraph examiner, Dr. Charles Honts, a Professor of Psychology at
Boise State University?
50. Is it not true that, prior to June 1999, you had previously
consulted Dr. Charles Honts as an expert polygraph examiner?
51. Is it not true that, in a statutory declaration sworn under
penalty of perjury dated June 30, 2001, Dr. Honts has stated that you were
rude and hostile when you discussed with him the results of the lie
detector test which he had conducted and which corroborated Beverlys
confession?
52. Is it not true that, during the course of these discussions,
you falsely told Dr. Honts that DNA testing had been carried out which
contradicted Beverly?
53. Is it not true that no DNA testing has ever been done in Mumia
Abu-Jamals case?
54. Is it not true that, in order to do DNA
testing, it would have been necessary to obtain a court order permitting DNA
testing to be done and no such court order has been made?
55. Is it not true that, by June 1999, your co-counsel working on
Mumia Abu-Jamals case had prepared some 400 pages of internal, counsel to
counsel memoranda and supporting documentation demonstrating all of the many
and various ways in which both the evidence which had been available at the
time of Mumia Abu-Jamals original trial and more recently discovered
evidence corroborated and supported Arnold Beverlys confession?
56. Is it not true, for example, that:
(A) Arnold Beverlys confession (in which he states that he
was wearing a green army jacket) is corroborated by the references of at least
five witnesses to a black male wearing a green army jacket or coat being
present at the scene and, except in one instance, implicitly, if not explicitly
identifying this man as the shooter when the police property records prove that
neither Mumia nor Billy Cook were wearing a green jacket and there is no green
army jacket or coat in the evidence?
(B) Arnold Beverlys description in his confession of how
Police Officer Faulkner fell on his knee on the sidewalk after he was initially
shot is corroborated by the finding in the post mortem report that there was a
2-inch wide, 3/4-inch high superficial red-brown skin denudation in the bottom
center of Police Officer Faulkners left knee and Dr. Hoder, the Assistant
Medical Examiners trial testimony that this type of injury was consistent
with Police Officer Faulkner falling on his left knee?
(C) Arnold Beverlys description in his confession of the
shooting and how he had an accomplice is corroborated by the physical evidence
of the bullets which were found in and about and to the west of the doorway to
1234 Locust and the evidence of the number of bullets which were found at the
scene, which prove that more than one person was involved in the shooting of
Police Officer Faulkner?
(D) Arnold Beverlys confession is corroborated by the
evidence of seven witnesses who have stated at various times that at least one
man fled the scene after the shooting and the contemporaneous police radio log
on which it was reported that Police Officer Faulkners assailant had
fled?
(E) Arnold Beverlys confession is
corroborated by the fact that, in December 1981, there were at least three
on-going FBI investigations of center city police corruption taking place in
Philadelphia, that these investigations ultimately led to indictments and
convictions of some thirty police officers, including the Deputy Commissioner
of the Police Force, the Commander of the Central Division and the ranking
officer supervising the investigation at the scene, and that some seventeen
officers who played some role in the arrest of Mumia and the investigation
following the shooting of Police Officer Faulkner were either disciplined or
indicted for crimes or found guilty of committing acts of corruption or
brutality or resigned from the police force as a result of being named by other
corrupt police officers?
(F) Arnold Beverlys confession is corroborated by the
polices failure even to secure the crime scene after the shooting?
(G) Arnold Beverlys confession is corroborated by the
polices failure to test the hands of either Police Officer Faulkner or
Mumia Abu-Jamal for traces of gun powder?
(H) Arnold Beverlys confession is corroborated by the
evidence of three eye-witnesses who confirm that police officers were present
at the crime scene at the time of the shooting and a fourth eye witness who
confirms that, immediately before the shooting, there were two people standing
in precisely the same position as Arnold Beverly states that there were two
undercover officers.
(I) Arnold Beverlys confession is corroborated by the entry
made by Stefan Makuch in the contemporaneous medical examiners log
recording that, at about 9 am on December 9, 1981, he was told by a homicide
detective, Sergeant Westerman, that Mumia Abu-Jamal was shot subsequently
by arriving police reinforcements?
57. Is it not true that neither you nor any of your co-counsel
produced a single internal, counsel to counsel memorandum challenging the
analysis in these memoranda or in any way questioning the reliability of Arnold
Beverlys confession?
58. Is it not true that, on page 3 of your copy of Richard
Genovas memorandum Shooting Scenario and New Evidence dated
11th May 1999 in the Section entitled New Information Better
Fits Events Than Sabos and PA Supreme Courts Findings, you
scribbled in the margin the words Suggests M[umia] shot by another
cop?
59. Is it not true that, in 1992, Rachel Wolkenstein first told
you that she had interviewed Arnold Beverly and that he, Beverly, had told her
that, even though he would not testify about anything which he knew, Mumia had
not shot Police Officer Faulkner, but, rather, there had been a plot by
Philadelphia police officers to kill Faulkner, because it was believed that he
was interfering with police corruption involving drugs and prostitution in the
City Center?
60. Is it not true that, when Rachel Wolkenstein presented you
with this information:
(A) You bluntly told her that you were not interested in pursuing
this information, that it was too hot to handle and that you did not want to
discuss it further?
(B) Thereafter, you refused to discuss, let alone investigate,
Beverlys account right through the 1995 state post-conviction
proceedings?
61. Is it not true that, in October 1995, even though you were
refusing to investigate Beverlys account, you announced to a large public
meeting in San Francisco that there were rumors that Police Officer Faulkner
was an FBI informant and that he had been set up to be killed by fellow
officers?
62. Is it not true that, if someone comes forward and confesses to
the crime for which your client has been convicted and maintains his innocence,
the obvious next step for any attorney who is honestly acting in the best
interests of such client to take is to analyze all of the available evidence,
both in the record and outside it, in order to ascertain to what extent this
other persons confession is corroborated by the rest of the available
evidence in the case?
63. Is it not true that, when, in 1999, Beverly confessed to
Rachel Wolkenstein that he had killed Police Officer Faulkner, you refused to
engage in rational discussion about how Beverlys confession squared with
any of the supporting evidence?
64. Do you agree or disagree with the following statement made by
your co-counsel, Daniel Williams, in his unauthorized book about Mumias
case, Executing Justice: Len sought out ways to push this witness
[Arnold Beverly] on to the trash heap?
65. Is it not true that, in 1999, the argument put forward by your
co-counsel, Daniel Williams, against presenting Arnold Beverlys
confession to the Courts was that, if accepted, Beverlys account would
mean that the police had knowingly framed an innocent man, and that it was
unbelievable that the police or the prosecution would do that?
66. Is it not true that Mumia Abu-Jamal is innocent and that he
was knowingly framed by the police?
67. Is it not true that, since 1996, under Pennsylvania law, there
has been a 60 day time limit for presenting newly discovered evidence to the
Courts?
68. Is it not true that you failed to present Arnold
Beverlys confession to the Courts within 60 days or at all?
69. Is it not true that, between 1992 and May 4, 2001, whilst you
represented Mumia Abu-Jamal, you failed to present any positive defense case
that Mumia was innocent?
70. Is it not true that, pursuant to the Supreme Court decision in
Faretta v. California (1975) 422 US 806, Mumia had a constitutional
right to defend himself at his original trial?
71. Is it not true that, if a defendant is able to establish that
his constitutional right to defend himself at his original trial was violated,
he does not have to establish any prejudice as a result of this
violation of his constitutional rights in order to have his conviction
overturned?
72. Is it not true that, in McKaskle v. Wiggins, 465 US 168
(1984), the Supreme Court listed participating in voir dire
(jury selection) as one of the rights that a defendant representing himself has
under Faretta?
73. Is it not true that Mumia Abu-Jamal sought to exercise his
constitutional right under Faretta to defend himself at his original
trial?
74. Is it not true that, during the voir dire at Mumia
Abu-Jamals original trial, Judge Sabo took the voir dire out of
Mumia Abu-Jamals hands and made him choose between the Judge or his
court-appointed, back-up attorney Jackson conducting the voir
dire?
75. Is it not true that, in Claim 11 of the
Federal Habeas Petition which you and your co-counsel, Daniel Williams,
wrote and filed on behalf of Mumia Abu-Jamal in October 1999, you pleaded a
claim for relief based on this violation of Mumia Abu-Jamals
constitutional rights?
76. Is it not true that the District Attorney opposed this claim
for relief on the grounds that you had failed to cite any specific legal
authority in support of your claim that there is a constitutional right for a
defendant representing himself to voir dire (question)
potential jurors personally during the jury selection process?
77. Is it not true that you failed to respond to this false claim
by the District Attorney and that you failed to cite to the Court the language
from the Supreme Court in McKaskle at page 174 which specifically recognizes
this right?
78. Is it not true that, in July 2000, you filed a motion in
Federal Court to amend Mumia Abu-Jamals petition for habeas corpus
to add a claim that Mumia Abu-Jamals Faretta rights to represent
himself had been violated by Judge Sabos refusal to allow Mumias
friend, John Africa, to sit at counsels table during Mumias
original trial to advise him whilst he conducted his own defense?
79. Is it not true that you failed to cite any legal authority in
support of this claim?
80. Is it not true that the District Attorney opposed this motion
to amend on the grounds that you had failed to cite any legal authority in
support of this claim?
81. Is it not true that legal authorities in
support of this claim had been cited in the amicus brief previously
submitted to the District Court by 22 Members of the British Parliament and the
amicus brief previously submitted to the District Court by the
Chicana/Chicano Studies Foundation?
82. Is it not true that you failed to cite these
authorities or even to incorporate these amicus briefs into your motion
to amend by reference?
83. Is it not true that your motion to amend Mumia
Abu-Jamals petition for habeas corpus to add this so-called
John Africa claim was denied, in part, on the grounds that you had
failed to cite any legal authorities in support of the claim?
84. Is it not true that Mumia Abu-Jamal fired you
and your co-counsel, Daniel Williams, in March 2001, after he read a proof copy
of Daniel Williams unauthorized and fallacious book about his case,
Executing Justice: An Inside Account of the Case of Mumia Abu-Jamal, and
after you refused to take any steps to try and prevent publication of this
book?
85. Is it not true that Daniel Williams received a
$30,000 advance from St. Martins Press for writing Executing
Justice?
86. Is it not true that, in an affidavit dated
March 21, 2001, and sworn by Daniel Williams in Mumia Abu-Jamal v. St.
Martins Press and Daniel R. Williams, No. 01. Civ. 2850, United
States District Court for the Southern District of New York (proceedings which
other attorneys undertook on Mumias behalf to try and prevent publication
of Executing Justice), Daniel Williams has stated that:
(A) You assisted him in putting the book together;
(B) You never informed him that the book was in any way harmful to
Mumias legal case;
(C) In your public statements, you had repudiated any suggestion
that the book harms Mumias legal case.
87. Is it not true that Rule IV, Local Rules of Disciplinary
Enforcement, United States District Court for the Eastern District of
Pennsylvania and Rule 1.8 of Pennsylvania Rules of Professional Conduct
(Conflict of Interest: Prohibited Transactions) prohibit an attorney from
contracting to publish a book about the subject of their representation of a
client while representing that client and that the Official comment to Rule 1.8
states that: an agreement by which a lawyer acquires literary or media
rights concerning the conduct of representation creates a conflict between the
interests of the client and the personal interests of the lawyer. Measures
suitable in the representation of the client may detract from the publication
value of an account of the representation?
88. Is it not true that Daniel Williams book was written in
direct violation of Rule IV, Local Rules of Disciplinary Enforcement, United
States District Court for the Eastern District of Pennsylvania and Rule 1.8 of
Pennsylvania Rules of Professional Conduct?
89. Is it not true that, according to Williams, the theme of the
book is ambiguity?
90. Is it not true that the introduction to Daniel
Williams book about the Mumia Abu-Jamal case, Executing Justice,
contains the following passage at p. xvi: Ah, ambiguity, [Cornel]
Wests proclamation [of Mumias innocence] begs the question: is
Mumias stature as a writer, the truth of his message,
unworthy of attention if he is guilty of firing a bullet into the brain of a
young police officer? Does guilt for such an act necessarily muffle this voice
for social justice? Or can such a guilty man nonetheless still speak to us,
clearly and credibly? Indeed, even if his guilt somehow justifies extinguishing
his right to remain alive, does it extinguish the worth of his message? Does
Mumias worthiness, in short, as a voice for the voiceless depend upon his
innocence? If so, why?
91. Is it not true that, to the reader, the
natural meaning of this passage implies that Daniel Williams, as one of Mumia
Abu-Jamals attorneys, believes that he is guilty?
92. Is it not true that, in his statutory
declaration sworn under penalty of perjury dated May 2, 2001, Mumia Abu-Jamal
states that he was sitting in a cab in 13th Street (and not the
parking lot) filling out his log/trip sheet, when he heard what sounded like a
gunshot (implicitly the first shot fired at Police Officer Faulkner), that he
looked in the rear view mirror and saw people running up and down Locust, that
as he scanned up and down Locust, he recognized his brother, apparently
distressed, and that he immediately got out of the cab and ran towards his
brother who was screaming?
93. Is it not true that it is the prosecutions case against
Mumia Abu-Jamal that Mumia ran from the parking lot and intervened in a scuffle
between Police Officer Faulkner) by shooting dead Faulkner?
94. Is it not true that the caption under one of the photographs
in Executing Justice states as follows: The parking lot through
which Mumia ran to aid his brother. Was killing on his mind as he raced towards
his brother, Billy Cook, who was in a scuffle with Officer Faulkner?
95. Is it not true that, to the reader, the natural meaning of
this passage implies that Daniel Williams, as one of Mumia Abu-Jamals
attorneys, accepts the prosecution case against Mumia and believes that Mumia
did shoot Police Officer Faulkner?
96. Is it not true that it is the prosecutions case against
Mumia Abu-Jamal that Mumia was shot by Police Officer Faulkner whilst he was
lying in a prone position on the sidewalk after being shot in the back and just
before he was shot in the face by a gunman standing over him?
97. Is it not true that the trajectory of the bullet which was
found in Mumia Abu-Jamal, which was from his upper chest to his lower back,
proves that Police Officer Faulkner could not have shot Mumia Abu-Jamal from
this prone position?
98. Is it not true that, whilst you represented
Mumia Abu-Jamal, one of the grounds upon which you sought to challenge
Mumias conviction both in the state post-conviction proceedings and in
the federal habeas corpus proceedings was that the trajectory of the
bullet which was found in Mumia Abu-Jamal, which was from his upper chest to
his lower back, proves that Police Officer Faulkner could not have shot Mumia
Abu-Jamal from this prone position?
99. Is it not true that, at about 9 am on December 9, 1981, Stefan
Makuch made an entry in the contemporaneous medical examiners log
recording that he was told by a homicide detective, Sergeant Westerman, that
Mumia Abu-Jamal was shot subsequently by arriving police
reinforcements?
100. Is it not true that the caption under one of the photographs
in Executing Justice states as follows: Lost freedom and lost
promiseMumia being transported to court after his recovery from a gunshot
wound from Officer Faulkners gun?
101. Is it not true that, to the reader, the
natural meaning of this passage implies that Daniel Williams, as one of Mumia
Abu-Jamals attorneys, accepts the prosecution case against Mumia, that he
believes that Police Officer Faulkner did shoot Mumia, and that he does not
believe in one of the central tenets of the defense case which he is presenting
to the Courts on Mumias behalf?
102. Is it not true that, to the reader, the natural meaning of
Daniel Williams whole book is that it implies that Daniel Williams, as
one of Mumia Abu-Jamals attorneys, believes that he is guilty?
103. Is it not true that this is why Mumia
Abu-Jamal fired you and Daniel Williams as his attorneys immediately after he
had read the proof copy of Executing Justice and after you had refused to take
any steps to prevent publication?
104. Is it not true that, in every, or if not
every, in almost every briefing or pleading which the District Attorney has
submitted to the Courts since Executing Justice was published, the
District Attorney has used and quoted passages from Executing Justice
against Mumia Abu-Jamal and to attack the case being presented by him and on
his behalf?
105. Is it not true that, in a letter dated
February 22, 2001, you wrote to Mumia Abu-Jamal generally commending the book
Executing Justice to him?
106. Is it not true that, in this letter to Mumia Abu-Jamal, you
proffered Daniel Williams purported explanations for including two of the
most obviously damaging passages in Executing Justice?
107. Is it not true that, in this letter to Mumia
Abu-Jamal, you described Executing Justice as being a pre-emptive
strike against the evidence of Arnold Beverly and his confession, the
witness you had blocked from coming forward?
108. Is it not true that the District Attorney was
never going to present Arnold Beverly or Arnold Beverlys confession to
the Courts, because Arnold Beverly completely exonerates Mumia Abu-Jamal?
109. Is it not true that the only persons who were
ever likely to present Arnold Beverlys confession to the Courts were
Mumia Abu-Jamal and attorneys acting on his behalf as they tried to prove Mumia
Abu-Jamals innocence?
110. Is it not true that, as you stated in your
letter dated February 22, 2001, that the purpose of Executing Justice
was to try and prevent Mumia Abu-Jamal ever making use of Arnold Beverlys
testimony or confession to prove his innocence?
111. Is it not true that, in no circumstances
whatsoever, could it ever be in Mumia Abu-Jamals best interests to try to
prevent Mumia Abu-Jamal ever making use of Arnold Beverlys testimony or
confession to prove his innocence?
112. Is it not true that the only persons in whose
interests it was to try to prevent Mumia Abu-Jamal ever making use of Arnold
Beverlys testimony or confession to prove his innocence were you and
Daniel Williams, who had blocked Arnold Beverly from coming
forward, and anyone with an interest in seeing Mumia Abu-Jamal executed or
spending the rest of his life in prison?
CONCLUSION
For the foregoing reasons it is respectfully
requested that Appellant Jamals motion(s) be granted.
Respectfully submitted,
MUMIA ABU-JAMAL
Appellant
NICK BROWN
MARLENE KAMISH
ELIOT LEE GROSSMAN
Attorneys for Appellant Mumia Abu-Jamal
J. MICHAEL FARRELL
Local Counsel for Appellant Mumia Abu-Jamal
[23 May 2003]
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