[Ppnews] Mumia Abu-Jamal - Legal Update re U.S. Supreme Court

Political Prisoner News ppnews at freedomarchives.org
Fri Sep 12 10:49:03 EDT 2008



 *Legal Update*


Date:       September 12, 2008

From:      Robert R. Bryan, lead counsel

Subject:  U.S. Supreme Court litigation on behalf of Mumia Abu-Jamal, death
row, Pennsylvania


*Introduction  *There has been extensive news attention to the ongoing
federal proceedings concerning my client, Mumia Abu-Jamal, on the hotly
contested issue of racism in jury selection and the ordering of a new jury
trial on the question of life or death.  (*Abu-Jamal v. Horn*, 520 F.3d 272
(3rd Cir. 2008).)  The massive issue of racism will be presented to the
U.S.
Supreme Court later this year.  However, few are aware that we have been
actively litigating separate issues concerning fraud and the subornation of
perjury by the Philadelphia Police Department and the District Attorney of
Philadelphia.  We are now before the Supreme Court regarding this
governmental misconduct which resulted in Mumia being convicted and
sentenced to death.


*U.S.** Supreme Court  *On July 18, 2008, I filed on behalf of Mumia in the
Supreme Court, a Petition for Writ of Certiorari.  (*Abu-Jamal v. **
Pennsylvania*, U.S. Sup. Ct. No. 08-5456.)  This arises from adverse
rulings
by the Pennsylvania Supreme Court and the Philadelphia Court of Common
Pleas.


The basis of the current litigation is that the prosecution persuaded
witnesses to lie in order to obtain a conviction and death judgment against
my client.  The following are excerpts from what I have presented to the
Supreme Court (without case citations and legal argument):

*QUESTIONS PRESENTED FOR REVIEW*

I.

Whether a new trial is mandated where there is newly discovered evidence
establishing that the police (a) persuaded a witness to falsely identify a
defendant as having shot a police officer, and (b) induced another to
falsely claim she heard him confess, in violation of rights guaranteed by
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.



II.

Whether a new trial is required where there is newly discovered evidence
which establishes that the prosecution used a fabricated confession and
false identification testimony in a capital murder trial, in violation of
the Fifth, Sixth, Eighth and Fourteenth Amendments.



III.

Whether the prosecutorial suppression of exculpatory evidence including the
fact that (a) a witness was persuaded to lie that she had witnessed the
homicide and (b) another encouraged to manufacture a false confession
attributed to Petitioner, contravened *Brady v. Maryland, *373 U.S. 83
(1963) and the right to a fair trial, due process of law, and a fair
penalty
trial guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.



IV.

Whether it is error for a state court to deny a hearing on newly discovered
evidence of prosecutorial fraud and innocence, where the new claims
involving police-induced false testimony were previously unknown to a
petitioner and could not have been ascertained by the exercise of due
diligence because of state interference.



*     . . . .*



*REASONS FOR GRANTING THE WRIT*



*     . . . .*

*I.*

*THE NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT THE PROSECUTION MANIPULATED
A PURPORTED EYEWITNESS TO FALSELY IDENTIFY PETITIONER AS THE SHOOTER, IN
VIOLATION OF THE FIFTH, SIXTH EIGHTH, AND FOURTEENTH AMENDMENTS*



      Petitioner was deprived of his right to a fair and reliable
determination of guilt and penalty, as guaranteed by the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution because
the state's purported eyewitness, Cynthia White, was coaxed and coerced
into
providing false testimony against him.  Her testimony was critical to the
prosecution.  If the jury had learned that her testimony was the product of
threats and favors, there is a reasonable probability that the result of
the
trial would have been different. . . .



     Newly discovered evidence from [Yvette} Williams establishes that
White
lied by falsely testifying that she observed Petitioner shoot police
officer
Daniel Faulkner.  In fact, she did not see the shooting.  White was
threatened with imprisonment and in fear of being killed by the police if
she did not help them by testifying against Petitioner.  As Ms. Williams
explained:



       6.  When [Cynthia White] told me she didn't see who shot Officer
Faulkner, I asked her why she was "lying on that man" (Mumia Abu-Jamal).
She told me it was because for the police and vice threatened her life.
Additionally, the police were giving her money for tricks.  "The way she
talked, we were talking "G's" ($1,000.00).  She also said she was terrified
of what the police would do to her if she didn't say that Mumia shot
Officer
Faulkner.  According to Lucky (White), the police told her they would . . .
send her "up" . . . for a long time if she didn't testify to what they told
her to say. . . .

       7.  Lucky was worried the police would kill her if she didn't say
what they wanted. . . . She was scared when she told me all of this plus
she
was crying and shaking.  Whenever she talked about testifying against Mumia
Abu-Jamal, and how the police were making her lie, she was nervous and very
excited and I could tell how scared she was from the way she was talking
and
crying.

       8.  Lucky told me that what really happened that night was that she
was . . . in the area . . . when Officer Faulkner got shot, but she
definitely did not see who did it.  She also told me that she had a drug
habit and was high on drugs when it happened.  She tried to run away after
the shooting, but the cops grabbed her and wouldn't let her go.  They took
her in the car first and told her that she saw Mumia shoot Officer
Faulkner.



Declaration of Yvette Williams, Jan. 28, 2002 at 2-3.

     The declaration of Ms. Williams does not merely provide direct
contradiction of the prosecution's key witness at trial, but it also
materially undermines the integrity of the case against Petitioner.  The
fact that the prosecution witness testified falsely as a result of police
inducement taints all of the evidence upon which the prosecution relied at
the original trial, and offends the Constitution.  Such proof would not
only
have impeached White's testimony, but would have created doubt about the
motives and trustworthiness of law enforcement personnel involved in this
case. . . . The subornation of perjury from White results in the
inescapable
conclusion that the investigating officers caused other witnesses to lie,
and that exculpa­tory and impeachment evidence was suppressed.  Evidence
that White was coerced into lying would have been far more significance
than
simply canceling out her testimony, which in and of itself was of major
significance.  It would raise a host of questions regarding why the police
felt the need to fabricate evidence. . . .

*II.*

*NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT PETITIONER WAS FOUND GUILTY
AND
SENTENCED TO DEATH THROUGH THE USE OF A POLICE FABRICATED CONFESSION IN
VIOLATION OF THE FIFTH, SIXTH EIGHTH, AND FOURTEENTH AMENDMENTS*

*  *

     Petitioner was deprived of his right to a fair and reliable
determination of guilt and penalty, as guaranteed by the Fifth, Eighth and
Fourteenth Amendments, because of the state's reliance on a fabricated
confession and by its thwart­ing of defense efforts to expose that
falsehood.  Newly discovered evidence has established that Priscilla
Durham,
a hospital security guard who testified at trial to hearing Petitioner
allegedly confess, has since admitted to concocting the story.  Declaration
of Kenneth Pate, Apr. 18, 2003.  She admitted to Mr. Pate that in fact she
never heard Petitioner make any incriminating statements.  He recalls:



     2.  Sometime around the end of 1983 or the beginning of 1984 I had a
telephone conversation with Priscilla Durham in which the subject of Mumia
Abu-Jamal came up.

     . . . .

     5.  Then Priscilla started talking about Mumia Abu-Jamal.  She said
that when the police brought him in that night she was working at the
hospital.  Mumia was all bloody and the police were interfering with his
treatment, saying "let him die."

     6.  Priscilla said that the police told her that she was part of the
"brotherhood" of police since she was a security guard and that she had to
stick with them and say that she heard Mumia say that he killed the police
officer, when they brought Mumia in on a stretcher.

     7.  I asked Priscilla: "Did you hear him say that?"  Priscilla said:
"All I heard him say was "Get off me, get off me, they're trying to kill
me.

        Declaration of Kenneth Pate, Apr. 18, 2003.



     Ms. Durham was the only civilian to claim that Petitioner admitted the
shooting.  There is a reasonable probability that if the jury was informed
that Durham was pressured by police into lying, it certainly would have
disregarded the alleged confession.  Without proof of a confession, there
is
a reasonable probability that the verdict would have been different. . . .



      Moreover, as in the situation of the fabricated testimony of Cynthia
White, disclosure of the pressure placed upon Durham to falsely claim she
heard the confession, would likewise create a reasonable probability that
the other witnesses and evidence presented would be viewed by the jury with
skepticism.  In effect disclosure that the police caused both Durham and
White to lie, would have brought into question the credibility and
legitimacy of the other evidence presented again Petitioner.  In that even
the prosecution case against Petitioner would have collapsed like a house
of
cards.



     By the prosecution concealing evidence that two of its crucial
witnesses lied, Petitioner was deprived of his right to a fair trial and
due
process of law under the Fifth, Sixth and Fourteenth Amendments.  The
petition filed on behalf of him in the state court addressed both
governmental interference and newly discovered evidence that could not have
been discovered through the exercise of due diligence.   Both claims allege
violations of recognized constitutional rights under Amendments Five, Six,
Eight and Fourteen.  Both claims allege the prosecutorial suppression of
exculpatory material evidence and the presentation of false evidence in
contravention of the right to a fair trial and due process of law
guaranteed
by the Constitution . . .



     The newly discovered facts establish that the police as part of the
prosecution were involved in obtaining false material testimony against
Petitioner at trial.  The result compromised not only his fair trial
rights,
but led to a death judgment that violated the very essence of the Eighth
Amendment.



*CONCLUSION*

The declaration of Yvette Williams discloses that Cynthia White told her
that she lied on the stand because she feared reprisals from the police if
she refused to do so.  The declaration of Kenneth Pate reveals that
Priscilla Durham lied in testifying against Petitioner because she was
pressured to so by the police.  The witnesses' fears, created by the
prosecution through the police, not only explain the false testimony but
also why the witnesses did not come forward.  The prosecutor in
Petitioner's
trial had an absolute obligation to disclose the threats and efforts to
suborn perjury. . . . By suppressing exculpatory evidence which included
the
fact that (a) a witness was persuaded to lie that she had witnessed the
homicide, and (b) another was encouraged to manufacture a false confession
attributed to Petitioner, contravened the right to a fair trial, due
process
of law, and a fair penalty trial, guaranteed by the Fifth, Sixth, Eighth
and
Fourteenth Amendments.


On August 21, 2008, the Philadelphia District Attorney filed a brief in
opposition to the relief we seek on procedural grounds, that prior counsel
failed to raise the issues in a timely manner.  Even though the Supreme
Court considers only an incredibly small number of cases at this stage, we
remain hopeful in view of the prosecution's egregious misconduct.


Later in the year we will be going separately before the Supreme Court
concerning the denial of an entirely new trial by the U.S. Court of Appeals
for Third Circuit.  That court did grant a new jury trial on the question
of
penalty, life or death.  Nonetheless, we are pursuing an entirely new
trial.  The issue of racism in jury selection will be presented, along with
the fact that the prosecutor made misrepresentations to the jury in order
to
obtain a murder conviction against Mumia.

 *Donations for Mumia's Legal Defense in the **U.S.*  For tax deductible
donations to the legal defense, please make checks payable to the *National
Lawyers Guild Foundation* (indicate "Mumia" on the bottom left).  They
should be mailed to:

*Committee To Save Mumia Abu-Jamal*
P.O. Box 2012
New York, NY 10159-2012

*Conclusion  *I will not rest until Mumia is free.  That he remains in
prison and on death row is a travesty of justice and an affront to
civilized
standards.  We must all continue to fight for what is right, and not lose
hope.  Free Mumia.



Yours very truly,



Robert R. Bryan
Law Offices of Robert R. Bryan
2088 Union Street, Suite 4
San Francisco, California 94123-4117

Lead counsel for Mumia Abu-Jamal
[RobertRBryan at aol.com]

Freedom Archives
www.freedomarchives.org





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