Date: September 12, 2008
From: Robert R. Bryan, lead counsel
Subject: U.S. Supreme Court litigation on behalf of Mumia Abu-Jamal, deathrow, Pennsylvania Introduction
There has been extensive news attention to the ongoing federalproceedings concerning my client, Mumia Abu-Jamal, on the hotly contestedissue of racism in jury selection and the ordering of a new jury trial on thequestion 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 Courtlater this year. However, few are aware that we have been actively litigatingseparate issues concerning fraud and the subornation of perjury by the Philadelphia Police Department and the District Attorney of Philadelphia. We arenow before the Supreme Court regarding this governmental misconduct whichresulted in Mumia being convicted and sentenced to death.U.S. Supreme Court On July 18, 2008, I filed on behalf of Mumia in theSupreme Court, a Petition for Writ of Certiorari. (Abu-Jamal v. Pennsylvania,U.S. Sup. Ct. No. 08-5456.)
This arises from adverse rulings by thePennsylvania Supreme Court and the Philadelphia Court of Common Pleas.The basis of the current litigation is that the prosecution persuadedwitnesses to lie in order to obtain a conviction and death judgment against myclient. The following are excerpts from what I have presented to the SupremeCourt (without case citations and legal argument): QUESTIONS PRESENTED FOR REVIEW
I.Whether a new trial is mandated where there is newly discovered evidenceestablishing that the police (a) persuaded a witness to falsely identify adefendant as having shot a police officer, and (b) induced another to falselyclaim 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 evidencewhich establishes that the prosecution used a fabricated confession and falseidentification 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 thefact that (a) a witness was persuaded to lie that she had witnessed thehomicide and (b) another encouraged to manufacture a false confession attributedto Petitioner, contravened Brady v. Maryland, 373 U.S. 83 (1963) and theright to a fair trial, due process of law, and a fair penalty trial guaranteed bythe Fifth, Sixth, Eighth and Fourteenth Amendments.
IV.Whether it is error for a state court to deny a hearing on newly discoveredevidence of prosecutorial fraud and innocence, where the new claims involvingpolice-induced false testimony were previously unknown to a petitioner andcould not have been ascertained by the exercise of due diligence because ofstate interference.. . . . REASONS FOR GRANTING THE WRIT . . . . I.THE NEWLY DISCOVERED EVIDENCE ESTABLISHES THAT THE PROSECUTION MANIPULATED APURPORTED EYEWITNESS TO FALSELY IDENTIFY PETITIONER AS THE SHOOTER, INVIOLATION OF THE FIFTH, SIXTH EIGHTH, AND FOURTEENTH AMENDMENTSPetitioner was deprived of his right to a fair and reliable determination ofguilt and penalty, as guaranteed by the Fifth, Sixth, Eighth and FourteenthAmendments to the United States Constitution because the state’s purportedeyewitness, Cynthia White, was coaxed and coerced into providing falsetestimony against him. Her testimony was critical to the prosecution.
If the juryhad learned that her testimony was the product of threats and favors, there isa reasonable probability that the result of the trial would have beendifferent. . . . Newly discovered evidence from [Yvette} Williams establishes that White liedby falsely testifying that she observed Petitioner shoot police officer Daniel Faulkner. In fact, she did not see the shooting. White was threatenedwith imprisonment and in fear of being killed by the police if she did nothelp them by testifying against Petitioner. As Ms. Williams explained:
6. When [Cynthia White] told me she didn’t see who shot Officer Faulkner, Iasked her why she was „lying on that man“ (Mumia Abu-Jamal). She told me itwas because for the police and vice threatened her life. Additionally, thepolice were giving her money for tricks. „The way she talked, we weretalking „G’s“ ($1,000.00). She also said she was terrified of what the policewould do to her if she didn’t say that Mumia shot Officer Faulkner. Accordingto 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 theywanted. . . . She was scared when she told me all of this plus she was cryingand shaking. Whenever she talked about testifying against Mumia Abu-Jamal,and how the police were making her lie, she was nervous and very excited andI 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 didnot see who did it. She also told me that she had a drug habit and was highon drugs when it happened. She tried to run away after the shooting, but thecops grabbed her and wouldn’t let her go.
They took her in the car first andtold 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 contradictionof the prosecution’s key witness at trial, but it also materially underminesthe integrity of the case against Petitioner. The fact that theprosecution witness testified falsely as a result of police inducement taints all ofthe evidence upon which the prosecution relied at the original trial, andoffends the Constitution. Such proof would not only have impeached White’stestimony, but would have created doubt about the motives and trustworthiness of lawenforcement personnel involved in this case. . . .
The subornation ofperjury from White results in the inescapable conclusion that the investigatingofficers caused other witnesses to lie, and that exculpa­tory andimpeachment evidence was suppressed. Evidence that White was coerced into lying wouldhave been far more significance than simply canceling out her testimony,which in and of itself was of major significance. It would raise a host ofquestions regarding why the police felt the need to fabricate evidence. . . .
II.NEWLY DISCOVERED EVIDENCE DEMONSTRATES THAT PETITIONER WAS FOUND GUILTY ANDSENTENCED TO DEATH THROUGH THE USE OF A POLICE FABRICATED CONFESSION INVIOLATION 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 FourteenthAmendments, because of the state’s reliance on a fabricated confession and by itsthwart­ing of defense efforts to expose that falsehood.
Newly discoveredevidence has established that Priscilla Durham, a hospital security guard whotestified at trial to hearing Petitioner allegedly confess, has sinceadmitted to concocting the story. Declaration of Kenneth Pate, Apr. 18, 2003. Sheadmitted to Mr. Pate that in fact she never heard Petitioner make anyincriminating statements. He recalls:2. Sometime around the end of 1983 or the beginning of 1984 I had atelephone conversation with Priscilla Durham in which the subject of Mumia Abu-Jamalcame up.. . . .
5. Then Priscilla started talking about Mumia Abu-Jamal. She said thatwhen 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 stickwith 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 Iheard 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 theshooting. There is a reasonable probability that if the jury was informed thatDurham was pressured by police into lying, it certainly would have disregardedthe alleged confession.
Without proof of a confession, there is areasonable 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 theconfession, would likewise create a reasonable probability that the otherwitnesses 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 otherevidence presented again Petitioner. In that even the prosecution case againstPetitioner would have collapsed like a house of cards.By the prosecution concealing evidence that two of its crucial witnesseslied, Petitioner was deprived of his right to a fair trial and due process of lawunder the Fifth, Sixth and Fourteenth Amendments. The petition filed onbehalf of him in the state court addressed both governmental interference andnewly discovered evidence that could not have been discovered through theexercise of due diligence. Both claims allege violations of recognizedconstitutional rights under Amendments Five, Six, Eight and Fourteen.
Both claimsallege the prosecutorial suppression of exculpatory material evidence and thepresentation of false evidence in contravention of the right to a fair trialand due process of law guaranteed by the Constitution . . . The newly discovered facts establish that the police as part of theprosecution were involved in obtaining false material testimony against Petitioner attrial. The result compromised not only his fair trial rights, but led to adeath judgment that violated the very essence of the Eighth Amendment. CONCLUSION The declaration of Yvette Williams discloses that Cynthia White told herthat she lied on the stand because she feared reprisals from the police if sherefused to do so. The declaration of Kenneth Pate reveals that PriscillaDurham lied in testifying against Petitioner because she was pressured to so bythe police. The witnesses’ fears, created by the prosecution through thepolice, not only explains the false testimony but also why the witnesses did notcome forward. The prosecutor in Petitioner’s trial had an absoluteobligation to disclose the threats and efforts to suborn perjury. . . .
By suppressing exculpatory evidence which included the fact that (a) a witness waspersuaded to lie that she had witnessed the homicide, and (b) another wasencouraged to manufacture a false confession attributed to Petitioner, contravened theright 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 inopposition to the relief we seek on procedural grounds, that prior counsel failedto raise the issues in a timely manner. Even though the Supreme Courtconsiders only an incredibly small number of cases at this stage, we remainhopeful in view of the prosecution’s egregious misconduct.Later in the year we will be going separately before the Supreme Courtconcerning 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 ofpenalty, life of death. Nonetheless, we are pursing an entirely new trial. Theissue of racism in jury selection will be presented, along with the fact thatthe prosecutor made misrepresentations to the jury in order to obtain amurder conviction against Mumia.Donations for Mumia’s Legal Defense in the U.S. For tax deductibledonations to the legal defense, please make checks payable to the National LawyersGuild Foundation (indicate „Mumia“ on the bottom left).
They should be mailed to:Committee To Save Mumia Abu-JamalP.O. Box 2012New 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. BryanLaw Offices of Robert R. Bryan2088 Union Street, Suite 4San Francisco, California 94123-4117
Lead counsel for Mumia Abu-Jamal[_RobertRBryan@aol.com