Opposition Brief — Abu-Jamal v. Pennsylvania

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Supreme Court, U.S,

FI.LED

JUN 22. 1999

No. 98-1702

CLEF

1 LERK

In The

Supreme Court of the United States

MUMIA ABU-JAMAL,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

o—__—____—_—

On Petition For Writ Of Certiorari

To The Supreme Court Of Pennsylvania

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Hucu J]. Burns, Jr.

Assistant District Attorney

CATHERINE MARSHALI

Chief, Appeals Unit

RONALD EISENBERG

Deputy District Attorney

(Counsel of Record)

ARNOLD H. GorDON

First Assistant District Attorney

LYNNE ABRAHAM

District Attorney

1421 Arch Street

Philadelphia, Pennsylvania 19102

(215) 686-5700

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-2831

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QUESTIONS PRESENTED

1. Was petitioner “stripped” of self-representation dur-

ing voir dire when in fact he continued to represent

himself?

(Answered in the negative by the court below).

2. Was petitioner properly removed from portions of his

trial when he tried to disrupt the proceedings?

(Answered in the affirmative by the court below).

3. Was petitioner’s presence critically required at a con-

ference in chambers where he was represented by coun-

sel, and his counsel agreed to dismiss a juror who had

violated sequestration?

(Answered in the negative by the court below).

TABLE OF CONTENTS

Page

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PAOD OF COUIMIID, vie ics 65000065 haeeeeeeerie es ean ii

Tee OE ROG ii 5d ne kv Vo ved cores ees iii

Orders and Opinions Below ...............+..e005: 1

ar re riage <8 sh Sh a oat Ren 1

Constitutional and Statutory Provisions Involved... 1

Counter-Statement of the Case.............ssceee0- 3

Reasons for Denying the Writ ..................... 11

I. PETITIONER WAS PERMITTED TO REPRE-

SENT HIMSELF DURING VOIR DIRE; HIS

BACK-UP COUNSEL MERELY CONDUCTED

CERTAIN QUESTIONING BY AGREEMENT... 11

Il. PETITIONER WAS PROPERLY REMOVED

WHEN HE DISRUPTED THE TRIAL.......... 15

Ill. PETITIONER’S ABSENCE FROM A CHAM-

BERS CONFERENCE IN WHICH HE WAS REP-

RESENTED BY COUNSEL WAS NOT A

DENIAL OF DUE PROCESS ...cccccccesscnece 26

C OUNGIOEIR, 6 on odd 6 Kda0b0 54456000 eee 29

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TABLE OF AUTHORITIES

Page

Cases

Commonwealth v. Abu-Jamal, 521 Pa. 188, 555

A.2d 846 (1989), cert. denied, 498 U.S. 881 (1990),

r‘hng denied, 498 U.S. 993 (1990), r’hng denied,

SOE WS. TAEG CIOPT) .0. oc ccc ccc ccccccccescvcvccece 14

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa.

ee C es eee e Guu eas cceces-e0k bee e eee e es 1

Commonwealth v. Abu-Jamal, 30 Phila. 1 (Phila.

Cty. Rptr., September 15, 1995) ................... 14

Faretta v. California, 422 U.S. 806 (1975) ............ 16

Foster v. Wainwright, 686 F.2d 1382 (9th Cir. 1978),

cert. denied, 459 U.S. 1213 (1983) .................. 24

Hopt v. Utah, 110 U.S. 574 (1884)................... 28

Illinois v. Allen, 397 U.S. 337 (1970).......... 22, 23, 24

Kentucky v. Stincer, 482 U.S. 730 (1987)............. 28

McKaskle v. Wiggins, 465 U.S. 168 (1984) ........... 14

Snyder v. Massachusetts, 291 U.S. 97 (1934) ......... 28

Stewart v. Corbin, 850 F.2d 492 (9th Cir. 1988) ...... 23

Strickland v. Washington, 466 U.S. 668 (1984) ....... 29

United States v. Brock, 159 F.3d 1077 (7th Cir.

tt CLCRiied euch ceenehbbuevewaseuse tne awa 16

United States v. Diaz, 223 U.S. 442, 32 S. Ct. 250

nn ccewae 22

United States v. Dougherty, 473 F.2d 1113 (D.C.

Tr eer dt oy oes bewees bNeee Sete suee'ces 22

United States v. Gagnon, 470 U.S. 522 (1985)........ 28

—_ es cote: aaa

TABLE OF AUTHORITIES - Continued

UI ee RIE NE cee aE a

United States v. Washington, 705 F.2d 489 (D.C.

Su Me aowedeecesuduusuneboe aecdacsolss

RULES

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—

ORDERS AND OPINIONS BELOW

The October 29, 1998 opinion of the Supreme Court

of Pennsylvania, Commonwealth v. Abu-Jamal, 720 A.2d 79

(Pa. 1998), is reproduced at petitioner’s Appendix A. That

decision affirmed the ruling of the Philadelphia Court of

Common Pleas which denied petitioner’s request for col-

lateral relief under the state Post Conviction Relief Act.

Petitioner’s appendix omits the opinion and factual find-

ings of the Court of Common Pleas.

JURISDICTION

This Court has jurisdiction to consider the petition

pursuant to 28 U.S.C. § 1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed;

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for

his defence.

The Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

[N]Jor shall any state deprive any person of life,

liberty, or property, without due process of law.

The version of the state Post Conviction Relief Act in

effect in June 1995 (when the petition in issue was filed)

stated that an action under the Act “shall be the sole

means of obtaining collateral relief[.]” 42 Pa.C.S. § 9542.

To be eligible for relief a PCRA petitioner is required to

“plead and prove” that conviction resulted from:

(i) A violation of the Constitution of Pennsyl-

vania or laws of this Commonwealth or the

Constitution of the United States which, in the

circumstances of the particular case, so under-

mined the truth-determining process that no

reliable adjudication of guilt or innocence could

have taken place.

(ii) Ineffective assistance of counsel which, in

the circumstances of the particular case, so

undermined the truth-determining process that

no reliable adjudication of guilt or innocence

could have taken place.

(iii) A plea of guilty unlawfully induced where

the circumstances make it likely that the induce-

ment caused an individual to plead guilty.

(iv) The improper obstruction by Common-

wealth officials of the petitioner’s right of

appeal where a meritorious appealable issue

existed and was properly preserved in the trial

court.

(v) A violation of the provisions of the Consti-

tution, law or treaties of the United States which

would require the granting of Federal habeas

corpus relief to a State prisoner.

(vi) The unavailability at the time of trial of

exculpatory evidence that has subsequently

become available and that would have affected

the outcome of the trial if it had been intro-

duced.

(vii) The imposition of a sentence greater than

the lawful maximum.

(viii) A proceeding in a tribunal without juris-

diction.

42 Pa.C.S. § 9543(a)(2).

COUNTER-STATEMENT OF THE CASE

On December 9, 1981, petitioner executed Phila-

delphia Police Officer Daniel Faulkner by cold-bloodedly

shooting him in the face as the officer lay helpless on the

ground. Convicted of first degree murder and sentenced

to death in 1982, petitioner unsuccessfully appealed to

the state supreme court, and then unsuccessfully sought

review in this Court. In 1995, petitioner unsuccessfully

sought state collateral relief. He again appealed unsuc-

cessfully to the state supreme court. He now, once again,

seeks review in this Court.

The evidence presented at trial established that Offi-

cer Faulkner stopped a Volkswagen driven by petitioner’s

brother, William Cook, shortly before 4 a.m. near the

corner of 13th and Locust Streets in Philadelphia. The

officer was in uniform and was driving a marked police

car. Shortly thereafter, at 3:58 a.m., the officer sent a radio

message requesting the assistance of a police van. The

officer stood behind Cook and was apparently about to

frisk him when Cook turned and punched him in the

face. Officer Faulkner attempted to subdue and handcuff

Cook. As he did so, petitioner - a former radio reporter

turned cab driver after losing his radio job - ran out of a

parking lot where his cab was parked on the opposite

side of the street. Petitioner ran to the officer, whose back

was turned, and shot him in the upper back with a five-

shot revolver. The officer turned, grabbed for his own

sidearm, and managed to fire one shot that hit petitioner

in the upper chest. Officer Faulkner fell to the ground

and lay face-up. Petitioner then stood over the officer and

deliberately emptied his revolver into the officer’s

upturned face. One of petitioner’s high-velocity “plus P”

bullets struck the officer between the eyes and entered

his brain (N.T. 6/19/82, 106, 209-216, 276-277; 6/21/82,

4.79-4.106, 5.179; 6/23/82, 6.97; 6/25/82, 8.4-8.34, 8.181;

6/28/82, 28.65).

Officer Robert Shoemaker and his partner, Officer

James Forbes, were already on their way to 13th and

Locust Streets in response to Officer Faulkner’s radio

message. A cab driver flagged them down and exclaimed

that an officer had-been shot. Officer Shoemaker

approached the shooting scene with his gun drawn, and

saw petitioner sitting on the curb. His right arm was

across his chest and his left hand was on the ground

beside his leg. Shoemaker said “freeze,” but petitioner

instead began to reach for something to his left. Shoe-

maker could not see what it was. He stepped to one side

for a better view and saw that petitioner was reaching for

a gun with a two-inch barrel that was on the sidewalk

beside him, about eight inches from his hand. When

petitioner ignored his second order to “freeze,” Shoe-

maker kicked him and knocked him to the ground, and

then kicked the gun out of reach. Officer Forbes covered

petitioner’s brother, who was frisked and proved to be

unarmed. Cook’s only comment was, “I ain’t got nothing

to do with this” (N.T. 6/19/82, 112-119, 127, 150-152,

155).

Officer Faulkner was taken to Jefferson University

Hospital. When the police attempted to handcuff peti-

tioner, he violently resisted, swinging his arms with

closed fists, striking and kicking the officers as they tried

to handcuff him and place him in a police wagon to be

transported to the hospital. He continued to struggle

against the officers as they brought him inside the hospi-

tal, the same one in which doctors were attempting to

save Officer Faulkner’s life. The officers carrying peti-

tioner temporarily placed him on the floor of the lobby

next to the entrance to the emergency room. Petitioner

announced, “I shot the mother f__ker and I hope the

mother f___ker dies.” He then repeated, “Yeah, I shot the

mother f__ker and I hope the mother f__ker dies.” A

hospital security guard who overheard this exclamation

described it as boasting: “he was doing everything he

could to intimidate the police officers.” The guard

directed the police to take petitioner through the emer-

gency room to a nearby waiting area, since the officer he

had shot was being treated in the emergency room. From

there, petitioner was moved to a separate treatment room

(N.T. 6/19/82, 176-199, 263-264; 6/21/82, 4.109,

4.194-4.199; 6/24/82, 27-30, 34, 56-61, 67-68, 74, 112-116,

123, 126, 133-136). Shortly thereafter, Officer Faulkner

was pronounced dead.

At petitioner’s 1982 jury trial, four eyewitnesses who

did not know one another testified to his lethal attack on

Officer Faulkner. Michael Scanlan was in his car waiting

for the light to change at the corner of 13th and Locust

Streets, saw Officer Faulkner stop Cook, and saw Cook

punch the officer in the face. As the officer tried to

subdue Cook, petitioner came “running out from a park-

ing lot across the street towards the officer,” whose back

was turned (N.T. 6/25/82, 8.4-8.6, 8.11).

I saw a hand come up, like this, and I heard a

gunshot. There was another gunshot when the

man got to the policeman, and the gentleman he

had been talking to. And then the officer fell

down on the sidewalk and the man walked over

and was standing at his feet and shot him twice.

I saw two flashes.

N.T. 6/25/82, 8.7. Petitioner methodically shot at the

officer’s face two or three times as he lay helplessly on

the ground.

I could see the one that hit the officer in the

face .. . his body jerked. His whole body jerked.

N.T. 6/25/82, 8.8.

Robert Chobert, a taxi driver, had just let off a fare

and was filling out paperwork at 13th and Locust Streets,

when he heard a shot.

I looked up, I saw the cop fall to the ground,

and then I saw Jamal standing over him and

firing more shots into him.

N.T. 6/19/82, 209-210. Mr. Chobert demonstrated how

petitioner stood over the fallen officer, methodically fir-

ing at his face three or four times (N.T. 6/19/82, 215-216,

276-277).

Cynthia White, a prostitute, was standing on the

corner at 13th and Locust Streets, and saw Officer

Fauikner stop the Volkswagen driven by Cook. She saw

Cook punch the officer in the face. As the officer

attempted to handcuff Cook, she saw petitioner run

toward the officer from the parking lot on the opposite

side of the street. Petitioner shot twice from behind. The

officer staggered, grabbed at something at his side, and

fell. Petitioner then stood over the fallen officer and fired

down at him several times (N.T. 6/21/82, 4.93-4.105;

6/22/82, 5.179).

Albert Magilton did not see the shots fired, but saw

petitioner quickly cross Locust Street on his way to shoot

the officer. After hearing the shots, he noted that peti-

tioner sat on the curb, which was where arriving officers

(who petitioner also tried to shoot) found him (N.T.

6/25/82, 8.75-8.78, 8.98-8.138).! Neither petitioner nor his

' Two handguns were recovered from the scene: the gun

petitioner had been reaching for, a five-shot Charter Arms .38

caliber revolver with a two-inch barrel; and, from the street, a

standard police-issue six-shot Smith and Wesson .38 caliber

Police Special revolver with a six-inch barrel. The police gun,

which was registered to Officer Faulkner, contained six

Remington .38 special cartridges, only one of which had been

fired. The Charter Arms two-inch gun, which was registered to

petitioner, contained five cartridges, all of which had been fired.

All of defendant’s ammunition was of the “+P” high-velocity

type: four Federal .38 caliber “+P” and one Smith and Wesson

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brother, who was present in the courtroom, testified at

trial.

The jury found petitioner guilty of murder in the first

degree and possession of an instrument of crime. In the

penalty phase, the Commonwealth relied largely on its

trial evidence. Petitioner was sworn as a witness, but

refused to be questioned by his counsel. Instead he made

a speech to the jury which included his reading of a

.38 caliber “+P.” The manager of the sporting goods store where

petitioner bought the gun explained that the “+P” is known in

the trade as a “devastating bullet” ... “When it hits the target, it

just almost explodes” (N.T. 6/19/82, 152-154, 163-164, 176;

6/21/82, 4.32-4.66; 6/23/82, 6.22-6.23, 6.90-6.99).

The bullet that struck petitioner entered his right chest and

was surgically removed from his right back. Ballistic testing

confirmed that it had been fired from Officer Faulkner’s gun.

Petitioner’s fatal bullet was removed from Officer Faulkner’s

head. It was too deformed to be ballistically matched to a

specific gun, but was caliber .38/.357 (.38 and .357 calibers are

interchangeable), consistent with petitioner’s .38 caliber

handgun. Moreover, the slug had a hollow base, a characteristic

of ammunition manufactured by the Federal firearms company;

four of the five spent shells in petitioner’s gun were of Federal

manufacture. A copper bullet jacket, two flattened and distorted

bullet specimens, and a number of fragments were also

recovered from the shooting scene, all unusable for ballistic

matching. However, one of the flattened bullet specimens, like

the bullet taken from the murdered officer’s head, had a hollow

base, as did defendant’s Federal brand ammunition. Finally, the

fatal bullet had been fired from a gun barrel with eight lands,

eight grooves and a right-hand twist; petitioner’s gun had eight

lands, eight grooves and a right-hand twist, which was

consistent with the murder bullet having been fired from his

gun (N.T. 6/19/82, 152-155; 6/23/82, 6.2-6.5, 6.101-6.114,

6.163-6.168).

prepared statement in which he claimed he had improp-

erly been denied the right to be represented by one John

Africa, a non-lawyer; that his court-appointed attorney

conspired with the court and the prosecution; and that

the trial was an effort to assassinate him (N.T. 7/3/82,

16).

The jury found one aggravating circumstance (the

killing of a police officer acting in the line of duty) and

one mitigating circumstance (no significant criminal

record), and returned a sentencing verdict of death. The

Pennsylvania Supreme Court affirmed the judgments of

sentence on direct appeal on March 6, 1989.

Petitioner filed his first petition for certiorari in this

Court on May 2, 1990. The petition was denied on Octo-

ber 1, 1990. He filed a petition for rehearing on October

29, 1990, which was denied on November 26, 1990. Six

months later, on May 15, 1991, petitioner filed a frivolous

and untimely second request for rehearing, which was

denied on June 10, 1991.

Petitioner made no attempt to file any further

appeals for the next four years, though his attorneys had

begun work on his petition for state collateral review

under the Post Conviction Relief Act (PCRA) some time

before August 31, 1990 (N.T. 8/11/95, 57). On June 1,

1995, the Governor of Pennsylvania signed a warrant of

execution, which was publicly announced on Friday, June

2, 1995. Petitioner filed his PCRA petition on the follow-

ing Monday.

Petitioner alleged in that 1995 petition that he would

prove his 1982 conviction was the result of a conspiracy,

inspired by his supposed fame as a political figure, to

frame him and conceal exculpatory evidence and wit-

nesses. In addition, he raised a variety of more traditional

claims, including numerous assertions that his trial and

appellate counsel had been ineffective. The evidence at

the two-month-long PCRA hearings in July and August

of 1995 failed to support petitioner’s claims.? Indeed,

additional evidence of guilt was adduced. In particular, a

new eyewitness testified that, although he could not

identify the gunman, he saw the gunman lean over and

shoot the officer, and then sit on the curb (N.T. 8/2/95,

205-210). This testimony corroborated the Common-

wealth’s trial evidence showing that it was petitioner

who sat on the curb after killing the victim.

On September 15, 1995, the Common Pleas Court

issued an opinion with detailed factual findings,

and denied PCRA relief. Petitioner appealed to the Penn-

sylvania Supreme Court. In October 1996, and again in

June 1997, the Pennsylvania Supreme Court granted

defense motions for further hearings in the Common

Pleas Court on claims of newly-discovered evidence.? The

2 For example, one supposed defense eyewitness was a

man who claimed that a large group of police supervisory

officials spoke to him at the scene within minutes of the

shooting, but then “disappeared”; that the police severely beat

petitioner and fractured his skull (petitioner’s doctor testified

that there was no sign of a beating); that a helicopter orbited the

scene (there was no helicopter); and that the victim officer both

spoke to and shot petitioner after the officer was already dead

(N.T. 6/28/82, 28.58, 28.92-103; 8/4/95, 60-61; 8/11/95,

236-240, 292, 295-297, 299).

3 The first of these additional hearings concerned a witness

called by petitioner at trial in 1982, and again in 1996, who

testified on both occasions that she did not see the shooting

Pennsylvania Supreme Court affirmed the denial of

PCRA relief on October 29, 1998. From that decision,

petitioner now seeks certiorari. Review should be denied.

REASONS FOR DENYING THE WRIT

I. PETITIONER WAS PERMITTED TO REPRESENT

HIMSELF DURING VOIR DIRE; HIS BACK-UP

COUNSEL MERELY CONDUCTED CERTAIN

QUESTIONING BY AGREEMENT.

Petitioner claims that he was denied “self-representa-

tion at voir dire” (petition at 15). In reality, petitioner

represented himself throughout the voir dire, and merely

elected to allow his back-up counsel to conduct part of

the questioning.

Jury selection proceeded at a snail’s pace due to the

pro se petitioner’s manner of questioning. Further, sev-

eral prospective jurors appeared fearful or even antago-

nistic toward him; one explained she could not be fair

because he “scares me to death.” The prosecutor noted

that, after two days, only twenty venirepersons had been

questioned, and only one juror had been selected. He was

concerned that the selection process could become even

more protracted if prospective jurors became reluctant to

serve through fear of petitioner. He therefore asked the

(N.T. 6/29/82, 110-122; 10/1/96, 95). The second hearing

concerned the testimony of a prostitute who claimed, inter alia,

that she had discussed the case with a prosecution eyewitness in

March 1997. In reality, that eyewitness had died in 1992 (N.T.

6/26/97, 48-58, 88-89, 91, 104-105, 128, 135; 7/1/97, 18-30,

59-60).

court to take over the questioning for both parties (N.T.

6/8/82, 2.137-2.139; 6/9/82, 3.2-3.4).

The court had discretion to do this under the 1982

Pennsylvania rules of criminal procedure. Pa.R.Crim.P.

1106(c) (“The judge may permit the defense and the pros-

ecution to conduct the examination of prospective jurors

or may itself conduct the examination”). As a compro-

mise, however, the court suggested that petitioner might

instead wish to allow his back-up counsel, a highly expe-

rienced criminal defense attorney, to conduct the defense

voir dire (N.T. 6/9/82, 3.4-3.18).4

Petitioner objected to the court conducting voir dire,

walked away from the sidebar conference where the mat-

ter was being discussed, and ordered his back-up counsel

not to participate in the proceedings. He announced that

he wanted a non-attorney, one John Africa, to question

the proposed jurors on his behalf. The court denied this,

and indicated that it would review proposed questions

for its conduct of the voir dire. Petitioner offered no

4 Prior to assisting petitioner, Anthony Jackson, Esq., had

tried approximately twenty capital murder cases, resulting in

only six convictions and no death sentences (N.T. 7/27/95,

92-93). Prior to that, Mr. Jackson had worked for, and for three

years was the director of, the Public Interest Law Center Police

Project, where he specialized in claims of police misconduct. He

also represented police officers in employment actions against

the Police Department (N.T. 7/27/95, 31-34, 95-101, 117-121).

Contrary to petitioner’s claim that Mr. Jackson “admitted

his lack of preparation” and “never prepared for trial” (petition

at 3), the record shows that he conducted thorough and

intensive pretrial preparation for a period of five months (N.T.

3/18/82, 9; 7/28/95, 55-59, 67-68). He ceased further efforts

only when petitioner insisted on representing himself.

proposed questions, refused to look at the ones submitted

by the prosecutor, and instructed his back-up counsel not

to look at them. He repeated that he wanted John Africa

to conduct the questioning, and stated that he considered

court-conducted voir dire a “damned farce” (N.T. 6/9/82,

3.19-3.45).

The court then conducted the voir dire, questioning

twelve prospective jurors in what was left of the morning

session (N.T. 6/9/82, 3.46-3.105). After the luncheon

recess, petitioner instructed his back-up counsel to

inform the court that he wanted John Africa to represent

him, but that he had agreed to authorize back-up counsel

to handle the defense voir dire. The court again declined

to allow John Africa to represent petitioner. Petitioner

refused to speak when the court asked if he wished to

proceed with back-up counsel rather than the court ask-

ing the questions. The court invited petitioner to object if

his back-up counsel had not correctly represented his

preference, and petitioner did not respond. The court

therefore allowed back-up counsel to conduct the remain-

ing voir dire (N.T. 6/9/82, 3.106-3.129).

Petitioner, therefore, was not denied self-representa-

tion during jury selection. It was his election to have

back-up counsel conduct the remaining voir dire rather

than have the court conduct the questioning for both

sides.°

5 Petitioner raised a different claim on direct appeal. There,

he did not object to the fact that Mr. Jackson conducted the

questioning, but rather complained of the trial court’s decision

to conduct the questioning for both sides under Rule 1106. The

state Supreme Court ruled that the trial court did not deny

Petitioner cites no authority for the notion that self-

representation precludes the court from conducting voir

dire, or is incorisistent with a party agreeing in the alter-

native to allow his back-up counsel to do so. Instead,

petitioner italicizes five words in McKaskle v. Wiggins, 465

U.S. 168 (1984), to the effect that a pro se party must be

allowed “to participate in voir dire” (petition at 19,

emphasis omitted). But petitioner did participate. When

the court was conducting voir dire, neither party was

allowed to ask questions. (Either party could submit

them, but petitioner chose not to). Having elected to

allow his back-up counsel to ask questions as an alterna-

tive to the court doing so, petitioner regularly conferred

with his back-up counsel and decided the exercise of

peremptory challenges (e.g., N.T. 6/9/82, 3.143, 3.160,

3.166, 3.197, 3.237, 3.246).© This claim is without merit.

petitioner's right to self-representation by conducting the

questioning for both sides, and noted that this situation lasted

for only half a day. Commonwealth v. Abu-Jamal, 521 Pa. 188,

200-201, 555 A.2d 846, 851-852 (1989), cert. denied, 498 U.S. 881

(1990), r’hng denied, 498 U.S. 993 (1990), r’hng denied, 501 U.S.

1214 (1991). Petitioner abandoned the claim in his first petition

for certiorari.

found as a fact that petitioner was making his own strategic

decisions during voir dire. Commonwealth v. Abu-Jamal, 30 Phila.

1 (Phila. Cty. Rptr., September 15, 1995), LEXIS 38; finding of

fact 67.

Il. PETITIONER WAS PROPERLY REMOVED WHEN

HE DISRUPTED THE TRIAL.

Petitioner next complains that he was improperly

removed from certain portions of his trial. This claim is

also without merit.”

On the first day of trial petitioner refused to allow

the prosecutor to make an opening statement. He began

by insisting - in front of the jury — that he be given a

microphone, although no one else was using one:

THE DEFENDANT: I need a microphone.

THE COURT: I do not have a microphone.

THE DEFENDANT: You can get one, Judge.

THE COURT: Let’s go.

THE DEFENDANT: I need a microphone,

Judge.

THE COURT: I’m sorry.

THE DEFENDANT: You're sorry?

THE COURT: Mr. McGill [the prosecutor],

please.

MR. McGILL: Yes, Your Honor.

THE DEFENDANT: I’m not finished.

THE COURT: Mr. McGill, please.

THE DEFENDANT: I need a microphone.

? Petitioner raised no such claim on direct appeal, nor did

he do so in his first petition for certiorari.

THE COURT: You don’t need a microphone.

THE DEFENDANT: I do need one.

N.T. 6/17/82, 1.45-1.46.

A sidebar conference followed in which petitioner, at

length, renewed his motion to be represented by John

Africa. The court denied the motion, noting that it had

already so ruled. Petitioner replied, “What does that rule

mean to me?” (/d., 1.52-1.59). When the court again

directed the prosecutor to begin his opening statement,

petitioner in front of the jury again demanded that John

Africa represent him. The court stated that it had already

ruled, to which petitioner responded, “You have not

ruled on it to my satisfaction” (Jd., 1.69-1.70).

The court repeatedly warned petitioner that he

would forfeit his pro se status and might have to be

removed from the courtroom if he refused to conduct

himself properly, and also warned that it might hold him

in contempt. Petitioner responded, “That’s absolutely

meaningless to me” (N.T. 6/17/82, 1.45, 1.86, 1.110-1.111).

After the entire day had been consumed in arguing with

petitioner, the court removed him from pro se status (/d.,

1.123). Where, as here, a pro se defendant insists on

disrupting the trial, the court may require him to proceed

through counsel. Faretta v. California, 422 U.S. 806, 834

n.46 (1975) (“the trial judge may terminate self-represen-

tation by a defendant who deliberately engages in serious

and obstructionist misconduct”); United States v. Brock,

159 F.3d 1077, 1079 (7th Cir. 1998) (“when a defendant's

obstreperous behavior is so disruptive that the trial can-

not move forward, it is within the trial judge’s discretion

to require the defendant to be represented by counsel”).

Despite his removal from self-representation, peti-

tioner’s disruptive conduct continued unabated. The fol-

lowing day, the court asked petitioner if the prosecutor

could make his opening statement “without any interrup-

tions, please?” Petitioner responded, “Can we proceed

with John Africa at the defense table?” (N.T. 6/18/82,

2.86). The court warned petitioner that he would be

removed if he further disrupted the trial. Petitioner said,

“[T]hat threat is meaningless” (Id., 2.87). After the jury

was brought in, petitioner began telling the jurors that

the court was “afraid of having John Africa’s presence in

this courtroom” (Id., 2.88). The court asked the prosecutor

to begin his opening statement. Petitioner interrupted:

THE DEFENDANT: I’m not finished.

THE COURT: We’re finished.

THE DEFENDANT: I’m not finished. We are

not finished.

MR. McGILL: May I proceed with the opening

before this jury that’s been waiting for two

days?

THE COURT: Yes.

THE DEFENDANT: I don’t care.

MR. McGILL: You don’t care what?

THE DEFENDANT: I have a right to the

defense of my choice.

THE COURT: Let’s move the jury out just for a

minute.

THE DEFENDANT: This does not mean anything

to me. They mean absolutely nothing to me.

N.T. 6/18/82, 2.89.

The court ordered the Sheriff to remove petitioner,

explaining that he could be readmitted when willing to

conduct himself properly. Petitioner said, “That doesn’t

mean anything to me. .. . What does that mean to me?

That is not news” (Id., 2.90). It was by now after 4 p.m.,

and so opening statements were delayed, again, until the

following day (Id., 2.92).

The following morning, the court asked petitioner if

he would behave properly. Petitioner answered, “I sure

will, Judge” (N.T. 6/19/82, 4). On the morning of June

22nd, however, petitioner moved to resume pro se status.

The court denied this, but petitioner continued to argue

in front of the jury, which had to be sent from the room.

Two hours were consumed in the ensuing argument.

When the court ordered testimony resumed, petitioner

refused to sit down and called the judge a “hangman,”

saying “You can order me thrown out of this courtroom”

(N.T. 6/22/82, 5.2-5.4, 5.19-5.21). He was therefore

removed again. The jury was instructed to draw no

adverse inference from his absence (Id., 5.24). Petitioner

was allowed to return in the afternoon session after

promising, through his counsel, to behave properly (/d.,

5.90).

The following day, petitioner again began addressing

the court in front of the jury. The jury was taken out,

whereupon petitioner again demanded to be represented

by John Africa:

THE DEFENDANT: I would like to have John

Africa represent me.

THE COURT: I know. It’s there on the record

numerous times. You don’t have to put it in

again. Will you please sit down so we can pro-

ceed with the trial?

THE DEFENDANT: Judge, can we proceed

with John Africa? Is that at all possible?

THE COURT: No, it’s not possible at all.

THE DEFENDANT: Can we proceed with the

assistance of John Africa?

THE COURT: No, we can’t.

THE DEFENDANT: Why is his assistance

expressly denied?

THE COURT: Mr. Jamal, I’m not going to sit

here and argue with you time and time.

N.T. 6/23/82, 6.118.

Petitioner repeatedly demanded to be represented by

John Africa, repeatedly complained that prior rulings

were “not to my satisfaction,” repeatedly ignored orders

to sit down, and repeatedly ignored the court’s warnings

that he would be removed if he did not desist. He was

ultimately removed again, with the same instruction to

the jury (Id., 6.120-129).

The next day petitioner advised the court through his

counsel that he would no longer disrupt the proceedings

(N.T. 6/24/82, 7). Only minutes later, however, after a

witness had been excused following defense cross-exam-

ination, petitioner announced “I have some questions,”

and began attempting to interrogate the witness in front

of the jury. The jury was sent out (N.T. 6/24/82, 16-17).

Petitioner continued:

THE DEFENDANT: Judge, I was asking the

question in the spirit of proceeding. Obviously

I’m not obstructing anything.

THE COURT: Yes, you are.

THE DEFENDANT: Again, I am not.

THE COURT: Yes, you are.

THE DEFENDANT: I would like to protest the

continued presence of Mr. Jackson as my

defense. He is not my counsel. My counsel is

John Africa.

N.T. 6/24/82, 19.

Petitioner told the court, “Judge, you can remove me

again and again and again and again and again and

again” (N.T. 6/24/82, 85). A short time later, he again

began directing questions to a different prosecution wit-

ness as the jury was being sent in. He also announced, “I

want John Africa to assist me in this matter” (Id., 89-90).

He was again removed, with the same cautionary instruc-

tion (Id., 95). That afternoon, after speaking with his

counsel, petitioner asked counsel to tell the court that he

planned to continue to disrupt the proceedings (Id., 129).

The following morning petitioner instructed his

attorney to tell the court that he would “do what was

right.” The court assumed this meant petitioner was

promising to act appropriately and allowed him to return

(N.T. 6/25/82, 8.2-8.4). Minutes later, however, petitioner

stood up and began addressing questions to a witness.

When the court told him to sit down petitioner replied,

“I’m cross-examining this witness.” The jury was taken

out. Petitioner accused the judge of “behaving in a way to

get me killed”; referring to his counsel, petitioner said, “I

ae ER se

do not want him working here. I want him out of here. I

do not want him to participate in this damn sham.”

Petitioner was removed again, and the jury was again

instructed not to draw any adverse inference from his

absence (Id., 8.13-8.16).

The court invited petitioner to cooperate at the start

of proceedings the following day. The prosecutor pointed

out that he was giving up the opportunity to assist in his

own defense. Petitioner replied that he did not wish to

attend the trial until he had consulted with John Africa

(N.T. 6/26/82, 3-7). He was nevertheless readmitted.

After the prosecution rested, petitioner addressed the

court, at length, demanding to be represented by John

Africa instead of a “legal trained lawyer” (Id., 155-159).

The next morning petitioner accused the court of

hiding evidence. He announced, “My counsel is John

Africa. My counsel would be ordered not to hide any-

thing” (N.T. 6/28/82, 28.46). Petitioner then accused his

attorney of “trying to kill me” (Id., 28.47). Disregarding

the court’s warning, petitioner said he was following “the

strategy of John Africa,” and told his attorney, “I want

you to get your ass up and get out of here... . on

MOVE!” (Id., 28.48). Petitioner was removed again. The

court instructed the jury to draw no adverse inference

from his absence (Id., 28.53).

Petitioner returned to court the following day and

was asked if he would behave properly. He cryptically

replied, “I intend to stay here today.” The court deemed

this assurance sufficient (N.T. 6/29/82, 3). Petitioner

chose not to disrupt the trial during the remaining testi-

mony of defense witnesses.

Although petitioner now claims that he was improp-

erly removed on the above occasions, removal was clearly

proper under this Court's controlling decision in Illinois v.

Allen, 397 U.S. 337 (1970). Petitioner argues that Allen is

distinguishable because the accused in that case may

have had a “diseased mind” (petition at 23). But a defen-

dant is not removed under Allen in order to obtain psy-

chiatric treatment, he is removed to prevent the trial from

being halted by his misconduct. That petitioner was of

sound mind proves only that he intentionally disrupted

the trial by his own free will. That may distinguish him

from the accused in Allen, but not in a way that favors

him.

Petitioner seems to suggest that Allen does not apply

to capital cases (petition at 21), but he offers no legal or

logical support for this proposition.® He also cites the

pre-Allen decision in United States v. Dougherty, 473 F.2d

1113, 1126 (D.C. Cir. 1972), but that case is inapposite.

There, the court held that misconduct occurring after an

erroneous denial of self-representation cannot cure the

error. Here, the issue is not petitioner’s removal from pro

se status (which, as explained above, was in any event

proper), but rather his removal from the courtroom. As

set forth above, in each such instance the misconduct was

8 Petitioner cites United States v. Diaz, 223 U.S. 442, 32 S.Ct.

250 (1912), in which this Court held that in a non-capital case

where the accused is not in custody and voluntarily absents

himself after the trial has begun, his unexplained failure to

appear operates as a waiver of his right to be present. Diaz does

not discuss the scenario in which a capital defendant is present

but attempts to halt the trial by his own misconduct.

not a subsequent event, but was the direct cause for the

removal.

Petitioner complains that, in those periods in which

he was removed, he was not put in “a room where he

could hear the proceedings,” or given a “broadcast sys-

tem” or “closed circuit television,” as supposedly

required by Stewart v. Corbin, 850 F.2d 492 (9th Cir. 1988),

United States v. Munn, 507 F.2d 563 (10th Cir. 1974), and

United States v. Washington, 705 F.2d 489 (D.C. Cir. 1983).

But petitioner never requested the devices that he now

claims were required; and Allen makes no mention of

them. Further, none of the above cases stands for the

proposition petitioner states.

Stewart v. Corbin upheld the trial court’s decision to

gag rather than remove the appellant when he refused

“to be put in a soundproof room for the remainder of the

trial.” 850 F.2d at 499. Contrary to petitioner’s under-

standing, it appears the “soundproof” room in that case

was not designed for the appellant to hear the trial, but

rather to prevent him from being heard. In any case,

Stewart v. Corbin simply does not imply that a special

room is required by Allen; nor does the record show that

such a room was available in this case. In Munn the court

merely “noted” that after being removed, “Munn was

able to hear the progress of the trial” in the marshall’s

office “over a building broadcast system.” 507 F.2d at 567.

The case does not imply that a broadcast system is

required by Allen, nor did the courthouse in this case

(Philadelphia City Hall) have one. Washington is even

more inapposite. That case merely suggests (in dicta in a

footnote) that, where the defendant has not been removed

but there are “security” issues, the presence requirement

of Fed. R. Crim. P. 43(a) “can” be satisfied “by closed

circuit television[.]” 705 F.2d at 497 n.4. Washington does

not hold that closed circuit television is required to sat-

isfy Rule 43, much less Allen, which was not even in

issue. Needless to say, there is nothing in the record of

this case to indicate that the trial court had reasonable

access to a closed-circuit television system.

Petitioner’s hindsight theory also fails to identify any

specific prejudice from the occasions on which he was

removed. See Foster v. Wainwright, 686 F.2d 1382, 1388 (9th

Cir. 1978) (prejudice requirement implicit in Allen), cert.

denied, 459 U.S. 1213 (1983). The record shows that his

counsel made every effort to keep him fully informed of

the events at trial:

[The Prosecutor]: ...I want the court to know

and the record to reflect the continuing effort by

Mr. Jackson to represent his client in the best

way possible and at the same time have a con-

tinual communication between Mr. Jamal and

Mr. Jackson without my knowing what it is all

about, nonetheless efforts are being made.

So, if Mr. Jamal does not wish to assist in any

way with Mr. Jackson he certainly has had the

opportunity to speak to him and there were

several efforts by Mr. Jackson to obtain his con-

cent [sic] and cooperation in this defense.

MR. JACKSON: I would like to say for the

record, Your Honor, that most of the communi-

cation has been one way in that aside from Mr.

Jamal not wanting to cooperate with me I nev-

ertheless at each instance that he has been

brought into the courtroom I have tried to tell

him what I intended to do, or when he is not in

the courtroom either to tell him what has hap-

pened or what I intend to do.

N.T. 6/29/82, 5-6.

Finally, it must be noted that no “technological

device[ ]” (petition at 13), no matter how advanced, could

have given petitioner what he refused to accept. The

record makes abundantly clear that petitioner was deter-

mined not to cooperate with any “legal trained lawyer”

(N.T. 6/26/82, 159), whether he was inside or outside the

courtroom.? Petitioner.is not entitled to relief from his

own willful misconduct.

9 At the 1995 state post-conviction hearings, at which

petitioner claimed that Anthony Jackson was ineffective, Mr.

Jackson testified that petitioner “didn’t think that the system,

the rules, my competence or incompetence, or a lawyer, quite

frankly, was going to do him much good” (N.T. 7/27/95, 76). At

trial, petitioner repeatedly demonstrated his refusal to

cooperate with his attorney. He personally decided what

character witnesses would be called on his behalf, refusing to

even tell his counsel who these persons were (N.T. 6/24/82, 2-6;

6/25/82, 136). At one point, Mr. Jackson complained that he no

longer had copies of witness statements he had given to

petitioner, who had apparently refused to return them; Jackson

had to ask the prosecutor for additional copies of statements

(N.T. 6/26/82, 139-140; 6/29/82, 5-7). On another occasion, as

petitioner was conferring with one Janet Africa, he humiliated

his counsel by ordering him to leave his presence (N.T. 6/24/82,

2). Petitioner was personally abusive toward his attorney on a

number of occasions (N.T. 7/28/95, 167-172).

III. PETITIONER’S ABSENCE FROM A CHAMBERS

CONFERENCE IN WHICH HE WAS REPRE-

SENTED BY COUNSEL WAS NOT A DENIAL OF

DUE PROCESS.

Petitioner claims he was denied due process of law

because he was not personalty present at an in-chambers

conference in which he was represented by counsel.

The factual background is as follows. On June 18,

1982, prior to the start of trial, the court held an in-

chambers conference at which petitioner was not present,

in order to discuss how to proceed in light of his removal

from pro se status. A juror who had broken sequestration

was then discussed. The court crier had informed the

judge that, on the previous morning, juror Jeanie Dooley

(or Dawley) had complained that her cat was ill. The

court did not release her from sequestration because she

had a husband at home who could take care of the

animal. When told that she could not leave, Ms. Dooley

stated “Well, I’m going to go.” Later, when court person-

nel came to take the jury to dinner, Ms. Dooley was gone.

She returned at approximately 9 p.m. that evening and

stated, “I don’t care what Judge Sabo or anybody says, I

do what I have to do. Nobody is going to stop me” (N.T.

6/18/82, 2.35-2.39).

Petitioner’s counsel agreed with the prosecutor that

the court should excuse the roaming juror. Aside from her

misconduct, petitioner had visibly alienated her when he

had personally questioned her during voir dire; she had

been “very belligerent” toward him. Further, she

appeared to be mentally unbalanced. Indeed, the pros-

ecutor remarked, without dissent from defense counsel,

that this juror seemed to hate petitioner. For his part,

defense counsel made clear that he was pleased to be rid

of her (N.T. 6/18/82, 2.40-2.46). At the 1995 PCRA hear-

ing, petitioner offered no evidence to establish that his

attorney did not inform him of these events, or that he

did not agree with the decision to remove the juror.!°

In Pennsylvania, sidebars and conferences in cham-

bers are routinely attended only by counsel. In his brief to

the Supreme Court of Pennsylvania, moreover, petitioner

conceded that there was “ne issue concerning [his] right

to a fair trial” with respect to the above events (Brief for

Appellant, 88-91, n.123). Now, however, petitioner claims

that the conference at which the parties agreed to dismiss

the prodigal juror was a “critical” event requiring his

personal presence, not just that of his counsel. This claim

is meritless.

A defendant has a due process right to be present

“whenever his presence has a relation, reasonably sub-

stantial, to the fullness of his opportunity to defend

against the charge. . . . [The] presence of a defendant is a

condition of due process to the extent that a fair and just

10 Petitioner refers to the court’s supposed “enthusiasm” in

removing this juror (petition at 7 n.2). There is no trace in the

record of this supposed “enthusiasm,” notwithstanding the

agreement of both counsel. Petitioner also complains that

another juror was allowed to be temporarily absent in order to

take a civil service examination. That juror, however, was

different. He had to be personally present for the examination,

unlike Ms. Dooley, whose husband could have taken care of her

cat; he asked the court for its cooperation in advance; and both

counsel agreed that the juror should be excused to take the

examination (N.T. 6/22/82, 5.245-5.246).

hearing would be thwarted by his absence, and to that

extent only.” United States v. Gagnon, 470 U.S. 522, 526

(1985); Snyder v. Massachusetts, 291 U.S. 97 (1934).

Here, petitioner’s presence was far from critical. He

now complains that the juror in question was personally

selected by him during voir dire (as were all the jurors,

since petitioner represented himself throughout voir

dire). But if this is meant to suggest that there was some

kind of bond between petitioner and the juror, the sug-

gestion is not only legally meaningless (petitioner was

not entitled to benefit from such bias), but contradicted

by the record; the juror apparently detested him. Despite

six weeks of hearings on state collateral review, more-

over, there is nothing in the record to show that, had

petitioner been present, he would not have agreed that it

was to his advantage to dismiss the juror; or that the

court would not have done so in any event due to her

willful violation of sequestration.

The only cases petitioner cites to support his theory

either directly contradict it, or are simply inapposite. In

Kentucky v. Stincer, 482 U.S. 730 (1987), this Court found

no denial of due process where the defendant was

excluded from a competency hearing with respect to two

witnesses. In Gagnon, it held that the absence of both the

defendants and their attorneys from a conference

between the court and a juror did not deny due process.

Finally, contrary to petitioner’s understanding, Hopt

v. Utah, 110 U.S. 574 (1884), did not hold that “challenges

to jurors held outside [the] defendant’s presence is [a]

constitutional violation” (petition at 26). The jury selec-

tion claim in Hopt was decided under the Criminal Code

of the Utah Territory, not the United States Constitution;

and the challenges there occurred out of the presence of

the court, the defendant, “and his counsel.” 110 U.S. at

577. Here, petitioner’s counsel was present. As a matter

of law, counsel is “strongly presumed,” Strickland v.

Washington, 466 U.S. 668, 689-690 (1984), to have been

acting reasonably when he decided it would be to peti-

tioner’s advantage for the juror to be excused. This claim

is without merit.

CONCLUSION

Wherefore, the Commonwealth respectfully requests

this Court to deny the petition for a writ of certiorari.

Respectfully submitted,

Hucu J. Burns, Jr.