In the Supreme Court of the Commonwealth of Pennsylvania

IN THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA

EASTERN DIVISION

COMMONWEALTH,)

)Capital Appeal

Appellee,)Docket No. 364 CAP

)

-vs-)

)

MUMIA ABU-JAMAL.)

)

Appellant.)

APPELLANT MUMIA ABU-JAMAL’S APPLICATION

PURSUANT TO APPELLATE RULE 2501(A) AND/OR APPELLATE RULE 123

TO FILE REMAND MOTION TO TAKE TESTIMONY FROM

ATTORNEY LEONARD WEINGLASS AND

REMAND MOTION

WITH OFFER OF PROOF IN SUPPORT THEREOF

* * * * *

NICHOLAS R.D. BROWN, ESQ

Barrister-at-Law

4 New Square,Lincoln's Inn,

London WC2A 3RJ, United Kingdom

(011) 44-207-822-2000

MARLENE KAMISH, ESQ.

Attorney-at-Law

P.O. Box 08376

Chicago, IL 60608

(312) 455-0766

ELIOT LEE GROSSMAN, ESQ.

Law Office of Eliot Lee Grossman

La Rotunda Building

248 East Main Street, Suite 100

Alhambra, CA 91801

(626) 943-1945

Attorneys for Appellant

Mumia Abu-Jamal

J. MICHAEL FARRELL, ESQ.

Attorney-at-Law

718 Arch Street, Suite 402 South

Philadelphia, PA 19106

(215) 925-1105

Local Counsel

TABLE OF CONTENTS

Page

Application for Relief. 4

Remand Motion. 6

Introduction. 6

1. When first retained to represent Mumia, Leonard Weinglass refused to investigate evidence proving Mumia’s innocence.

2. When Weinglass had a signed confession in hand from the man who actually killed Officer Faulkner which exonerated Mumia (Declaration of Arnold Beverly), and a lie detector test which corroborated it (Declaration of Dr. Charles Honts), Weinglass suppressed the confession instead of presenting it to the courts.

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.

4. Weinglass suppressed the declaration under penalty of perjury by Mumia’s brother, William Cook, dated May 1999, in which Cook disclosed that Kenneth Freeman had been the passenger in Cook’s car at the time of the Faulkner shooting and had confessed to Cook that he, Freeman, had participated in the shooting.

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.

6. Weinglass failed to put on evidence through the testimony of Arnold Howard that the prosecution’s 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 Freeman’s hands for gunpowder residue.

7. Weinglass failed to present any claim of ineffective representation against Mumia’s trial attorney for failing to impeach Cynthia White with her prior testimony at William Cook’s trial concerning the passenger in Cook’s car (Kenneth Freeman).

8. Weinglass refused to authorize investigation of Kenneth Freeman’s involvement in the murder of Police Officer Faulkner because Weinglass had received a death threat to keep him from putting forward any evidence linking Freeman to the murder.

9. Weinglass failed to object to Judge Sabo’s order, during the 1995 post-conviction hearings, turning the physical evidence over to the police.

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 Mumia’s defense at trial.

11. After his ballistic expert’s 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 Mumia’s favor, that the medical examiner had previously identified the bullet that killed Faulkner as a .44 caliber which could not have been fired from Mumia’s .38 caliber revolver.

12. Weinglass did not call Mumia as a witness at the 1995 post-conviction hearings, instead advising Mumia not to testify.

13. Weinglass failed to put forth in the federal habeas petition a claim that Mumia’s constitutional rights were violated at trial when Judge Sabo abrogated his right to defend himself.

14. Weinglass failed to cite the proper legal authority in support of his claim in the federal habeas petition that Mumia’s constitutional rights were violated when Judge Sabo took the “voir dire” out of Mumia’s hands during jury selection.

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.

Offer of Proof: 112 Questions for Leonard Weinglass. 23

Conclusion. 42

APPLICATION FOR RELIEF

COMES NOW Appellant Mumia Abu-Jamal and, pursuant to Appellate Rule 2501(a) and/or Appellate Rule 123, hereby applies to this Court for Relief and for leave to file his Motion for Remand to Take Testimony from Attorney Leonard Weinglass, which follows, and in support thereof alleges and says as follows:

1. Appellant is unaware of any rule which prohibits the filing of a remand motion in this Court after a case is taken under submission. However, the Prothonotary of the Court previously declined to file a remand motion submitted by Appellant in this matter to take testimony from Kenneth Pate on the alleged ground of Appellate Rule 2501(a).

2. Appellate Rule 2501(a) provides as follows:

“After the argument of a case has been concluded or the case has been submitted, no brief, memorandum or letter relating to the case shall be presented or submitted, either directly or indirectly, to the court or any judge thereof, except upon application or when expressly allowed at bar at the time of the argument.” [emphasis added]

3. Appellate Rule 2501(a) cannot bar the filing of the following remand motion to take testimony from Attorney Leonard Weinglass because a remand motion is obviously not a Abrief, memorandum or letter.” The following remand motion should be filed without the need to preface it with an Application for Relief. However, should Rule 2501(a) be wrongly construed to bar the filing of the aforesaid remand motion, it is hereby requested, pursuant to the provision in Rule 2501(a) which permits the post-submission filing of otherwise barred documents Aupon application,” that leave be granted to file the remand motion. In the alternative, it is also requested, pursuant to Appellate Rule 123 that leave be granted to file the remand motion to take testimony from Leonard Weinglass and to relieve Appellant from any procedural requirements or other obstacles to the filing of said remand motion.

4. There is good cause to grant this Application pursuant to Appellate Rule 2501(a) and/or Appellate Rule 123 in that it has taken Appellant’s Counsel up until now to unravel, to the point they have, the extremely complex web of duplicity and sabotage practiced by Attorney Leonard Weinglass in his previous representation of Appellant Jamal so that it might be presented to this Court. Appellant’s Counsel has had to critically review Attorney Weinglass’ prior work in the previous state post-conviction and federal habeas proceedings, draft a lengthy state post-conviction petition to present numerous meritorious claims for relief not previously raised by Weinglass, attempt to amend the federal habeas petition to properly plead the claims for relief both factually and legally, review the files of Attorney Weinglass and his cohort, Attorney Daniel Williams, conduct factual investigation and legal research, and spend many difficult hours trying to understand and explain Weinglass’ conduct.

5. The remand motion to take testimony from Leonard Weinglass is supported by an extensive analysis of numerous examples of his intentional sabotage of Appellant Jamal’s case, each of which is specifically supported by citations to the record, witness declarations under penalty of perjury, and other relevant evidence; and is further supported by an extensive Offer of Proof, both of which are set forth below.

6. The evidence to be obtained from Attorney Weinglass will further substantiate Appellant Jamal’s claims that conflicts of interest on the part of Attorney Weinglass, and his cohort Attorney Daniel Williams, were responsible for their intentional burying of evidence that proves Appellant Jamal’s Aactual innocence” of the crime of which he has been convicted, including but not limited to the confession of the man who did commit the crime, Arnold Beverly, and the lie detector test results which corroborate that confession. The evidence to be obtained from Attorney Weinglass will further substantiate Appellant Jamal’s claims that conflicts of interest on the part of Attorney Weinglass, and his cohort Daniel Williams, were responsible for intentionally failing to raise numerous meritorious claims for relief on behalf of Appellant Jamal involving prejudicial constitutional error in his trial, direct appeal, and post-conviction proceedings before Judge Sabo, and, further, intentionally sabotaged those claims for relief which they did present.

7. The evidence to be obtained from the testimony of Leonard Weinglass is directly relevant to the various bases upon which Appellant Jamal has argued in his briefs in this appeal that the Court of Common Pleas erred in holding it had no jurisdiction to hear on its merits the Petition for Post-Conviction Relief and/or Writ of Habeas Corpus which underlies this appeal.

REMAND MOTION TO TAKE TESTIMONY FROM

ATTORNEY LEONARD WEINGLASS

INTRODUCTION

The numerous acts of sabotage directed against Appellant Jamal’s case by his own Chief Counsel, Leonard Weinglass, could not have been inadvertent or the results or 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 Appellant’s case will emerge from his testimony on remand.

1. When first retained to represent Mumia, Leonard Weinglass refused to investigate evidence proving Mumia’s innocence.

Leonard Weinglass was retained as Mumia’s 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 Faulkner’s shooting had been located who stated that Mumia was innocent and that Faulkner had been the victim of a Amob 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 Atoo 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 Hont, 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 1980’s. Beverly’s 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 FBI’s 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 AE”].)

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 AB”].). 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 Beverly’s 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 Mumia’s 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 officer’s 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 Chobert’s 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 prosecution’s 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 Petitioner’s trial and took him back and forth between his work and the hotel. Weinglass asked no questions about Chobert’s 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 Chobert’s 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 Chobert’s 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 Mumia’s 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 Mumia’s constitutional rights by manipulating its witnesses, namely Robert Chobert and Cynthia White to lie and falsely accuse Mumia of the Faulkner murder at Mumia’s 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.