Appendix No. 11: 112 Questions for Leonard Weinglass

REMAND MOTION TO TAKE TESTIMONY FROM ATTORNEY LEONARD WEINGLASS

INTRODUCTION

The numerous acts of sabotage directed against Appellant Jamal’s case by his own Chief Counsel, Leonard Weinglass, could not have been inadvertent or the results of negligence or incompetence on the part of this highly-experienced criminal defense attorney. The nature of the conduct as well as its frequency over the course of Weinglass’ representation of Appellant Jamal demonstrates a pattern and practice of intentional sabotage. The following list is not exhaustive but illustrative. It is literally the tip of the iceberg. It is expected that additional evidence of Weinglass’ conflicts of interest, breach of his duty of loyalty to his client, Appellant Jamal, and other examples of his sabotage of 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 “mob hit,” i.e. that Faulkner had been murdered by a hired killer acting on behalf of organized crime. Weinglass refused to authorize investigation of this lead because he felt it was “too hot to handle.” (Affidavit of Rachel Wolkenstein, Docket #D-13.)(1)

2. When Weinglass had a signed confession in hand from the man who actually killed Officer Faulkner (Declaration of Arnold Beverly) and a lie detector test which corroborated it (Declaration of Dr. Charles Honts, Docket #D-1A [Exhibit “C”])(2) which exonerated Mumia, Weinglass suppressed it instead of presenting it to the courts.

The witness who provided the tip in 1992 that Faulkner had been killed by “the mob” was a man named Arnold Beverly. In June of 1999, Beverly finally admitted that it was he who killed Officer Daniel Faulkner and signed a written confession, under penalty of perjury, in which he disclosed that he had been hired, along with an accomplice, by organized crime and corrupt police to murder Faulkner because the officer was an obstacle to the “pay-offs racket” that corrupt police ran in downtown Philadelphia in the 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 “E”].)

A stack of memoranda approximately the size of a New York City phonebook were written by attorneys Wolkenstein and Piper and their investigative staff detailing how this evidence corroborated the Beverly confession (Docket #D-1A [Exhibit “B”].) These memos were discovered in Leonard Weinglass’ files by the new legal team which replaced his in May of 2001. No memoranda from Weinglass or his associate, Chief Legal Strategist Daniel R. Williams, were found which take issue with the Wolkenstein/Piper memos or call into question the accuracy and veracity of 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.

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.

When Mumia’s present attorneys took over his representation in May of 2001, not only did they find the signed confession of Arnold Beverly in Leonard Weinglass’ files, described above, they also found a signed statement by William Cook, Mumia’s brother, in which he disclosed that there was a passenger in his car on December 9, 1981, when he was stopped by Officer Faulkner, and the passenger was his business partner Kenneth Freeman. According to Cook, Freeman fled the scene after Faulkner was shot and, subsequently, confessed to Cook that he, Freeman, had been part of a plot to kill the police officer, was armed that night, and participated in the shooting. Cook’s declaration also states that neither Mumia nor Cook shot the police officer. (Declarations of William Cook, dated May 15, 1999, and April 29, 2001, Docket #D-1A [Exhibit “D”].)

5. Weinglass discouraged William Cook from testifying at the 1995 post-conviction hearings and then misrepresented to the court that Cook had failed to appear for fear of being arrested on an outstanding warrant.

William Cook states in a declaration under penalty of perjury that he was expecting to testify at the 1995 post-conviction hearings, but Leonard Weinglass didn’t want him to testify and, as a consequence he did not. (Declaration of William Cook, April 29, 2001, Docket #D-1A [Exhibit “D”].) Weinglass misrepresented to the court that Cook was unavailable to testify because he had “disappeared” for fear of being arrested on an outstanding warrant and could not be found. This same misrepresentation is written into the federal habeas petition that Weinglass filed in 1999. However, Rachel Wolkenstein states in her affidavit that Cook’s whereabouts were always known and he could easily have been found and placed on the witness stand. (Affidavit of Rachel Wolkenstein, Docket #D-13.) Private Investigator Mike Newman states in his declaration that, after Cook did not appear to testify at the 1995 hearings, he offered to find Cook, but Weinglass refused to authorize such investigation. (Declaration of George Michael Newman, Docket #D-21.)

6. Weinglass failed to put on evidence through the testimony of Arnold Howard that the 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.

In the 1995 post-conviction hearings before Judge Sabo it was revealed by the prosecution that a temporary driver’s license in the name of Arnold Howard was found on Faulkner’s body. Howard was called as a witness by Leonard Weinglass and testified that he had loaned his temporary license to Kenneth Freeman. Howard stated that both he and Kenneth Freeman were picked up by police after the Faulkner shooting and were in a line-up together. Although Howard told Weinglass before he was called to testify that Cynthia White, the star prosecution witness, had twice picked Freeman out of the line-up, Weinglass never asked about this, instead limiting his questioning to eliciting that a “black woman” had picked Freeman out. Although Howard had also told Weinglass that the police tested Freeman’s hands for gunpowder residue, Weinglass never asked about this when he had Howard on the witness stand. (Declarations of Arnold Howard, Docket #D-20, D-25.)

7. Weinglass failed to present any claim of ineffective representation against 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).

The prosecution’s case against Mumia Abu-Jamal at trial was based upon the assumption that there were only two people other than Officer Faulkner present at the crime scene: Mumia and his brother William Cook. Since the prosecution excluded Cook as a suspect, the only person left who could have shot the officer was Petitioner Jamal. This is the argument which prosecutor McGill made to the jury (N.T. 7/1/82: 172) and had previously made in pretrial proceedings to successfully oppose Petitioner’s repeated motions for a line-up. (N.T. 1/5/82: 17)

However, contrary to the prosecution’s theory, there was at least one other person present who could have shot the police officer, the passenger in William Cook’s car. In her prior testimony at William Cook’s trial, Cynthia White revealed that there was a passenger in Cook’s car when it was stopped by Officer Faulkner.

Although Cynthia White had revealed the existence of the passenger in her prior testimony at Cook’s trial under questioning by prosecutor McGill, she made no reference to his existence when she testified at Petitioner’s trial, in fact she falsely stated that no one else was present. (N.T. [White] 6/21/82: 4.106)

Had Jackson proved up the existence of the passenger by cross-examining White as to her prior testimony at William Cook’s trial it would have destroyed the key assumption underlying the prosecution’s case against Mumia, i.e., that no one else was present who could have shot the officer. Proving up the presence of the passenger would also have raised more than reasonable doubts about the credibility of the prosecution’s witnesses and the good faith of the prosecution itself. It would have shown Cynthia White to be lying under oath in front of the jury in order to conceal the existence of the passenger. And it would have suggested an intentional frame-up by the prosecution since Assistant District Attorney McGill prosecuted both Cook and Mumia and had to have known that White was lying to the jury by concealing the passenger’s existence and denying that anyone else was present.

It is obvious from the transcript of Mumia’s trial that while defense attorney Jackson was cross-examining Cynthia White he had in his hands the transcript of her prior testimony in the trial of William Cook. Jackson specifically refers White to that testimony: “I refer you to the notes of testimony, March 29, 1982, page 41.”(4) (N.T. 6/22/82: 5.93) That Jackson used the transcript from William Cook’s trial during his cross-examination of witnesses in Petitioner Jamal’s trial is also proved from Jackson’s reference to the Cook transcript in his cross-examination of Mr. Scanlon. (N.T. 6/25/82: 8.67)

Not only was Jackson ineffective for not proving up the existence of the passenger in cross-examination of Cynthia White, he was even more ineffective for not calling William Cook as a witness. Obviously, if there was a passenger in William Cook’s car, Cook had to know who the passenger was. Cook should have been called as a witness to identify the passenger. Once the passenger was identified, a subpoena could then have been served to require the passenger to appear as a witness. The passenger could then be asked in front of the jury if it was he who shot Officer Faulkner. Whether the passenger admitted, denied or took the Fifth Amendment, the effect on the jury would have been to raise a reasonable doubt in either instance and a conviction of Mumia under these circumstances would have been unlikely assuming that the jury obeyed their instructions to vote “not guilty” if the prosecution failed to prove its case “beyond a reasonable doubt”.

Now that we know the passenger was Kenneth Freeman, who confessed to Billy Cook that he had been part of a plot to shoot Faulkner and had participated in the shooting, it should be obvious what a difference it would have made in Mumia’s trial if this evidence had been placed before the jury. The trial should have ended in a verdict of “not guilty” based on reasonable doubt.

Leonard Weinglass should have known all of this from reviewing the transcript of Mumia’s trial and Cook’s trial and should have known that Mumia had a strong claim for ineffectiveness of counsel for his trial attorney’s failure to bring these matters out at his trial. Yet, Weinglass put forward no claim of ineffective representation by Jackson for his failure to cross-examine Cynthia White about the passenger, nor his failure to call William Cook to identify the passenger, nor his failure to call the passenger himself as a witness and ask if he shot Officer Faulkner. Nor did Weinglass question Jackson during the evidentiary hearing in 1995 about why he did not take these obvious steps during Mumia’s trial.

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 from Freeman’s brother.

Both private investigator George Michael Newman and attorney Rachel Wolkenstein have stated in declarations under penalty of perjury that Leonard Weinglass reported to them that he had received a death threat to dissuade him from presenting any evidence that would implicate Kenneth Freeman in the murder of Officer Faulkner. (Declaration of George Michael Newman, Docket #D-21; Affidavit of Rachel Wolkenstein, Docket #D-13.) Wolkenstein states that Weinglass told her the threat came from Freeman’s brother. Newman states he suggested to Weinglass several times that he investigate Freeman’s involvement in the murder, but Weinglass refused to authorize such investigation on grounds that the death threat he had received presented a risk that he was unwilling to take.

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

During the 1995 post-conviction proceedings, Judge Sabo ordered that the physical evidence be turned over by the court clerk to the Philadelphia Police, supposedly so that arrangements could be made for the evidence to be inspected by attorneys for both sides. (Commonwealth vs Wesley Cook, Court of Common Pleas of Philadelphia County, Case No. 1357-1358, Docket #D-45, July 20, 1995.) This broke the chain of custody of the evidence and provided the police with ample opportunity to tamper with the physical evidence, including the bullets and bullet fragments allegedly recovered from Officer Faulkner, Mumia, and the crime scene.

Leonard Weinglass failed to object to this order.

10. Weinglass used a ballistics and firearms expert at the 1995 post-conviction hearings who refused to examine the physical evidence, foreordaining denial of Claim 6(B)(1) of Weinglass’ federal habeas petition by failing to provide sufficient proof of what a ballistics expert could have added to Mumia’s defense at trial.

Although one of the principal legal claims Weinglass raised on behalf of Mumia was that he had been “framed”, Weinglass called as his only ballistics and firearms expert one George Fassnacht, who refused to examine the physical evidence even when the prosecution offered to provide it to him.

Weinglass’ failure to have his own expert examine the physical evidence foreordained that Claim 6(B)(1) of Weinglass’ own federal habeas petition would be denied as he failed to provide adequate evidence of what a firearms and ballistics expert would have added to 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.

Weinglass’ direct examination and the District Attorney’s cross-examination of Weinglass’ ballistics expert, Fassnacht, was concluded before the lunch recess. Instead of excusing the witness to shield him from any further questioning by the D.A., Weinglass told the court that he wanted to conduct re-direct examination after the lunch break. When court resumed, Weinglass put Fassnacht back on the witness stand, asked him a number of questions, the vast majority of which were relatively unimportant and all of which could and should have been asked on direct examination. The D.A. then had the opportunity for re-cross-examination and elicited from Fassnacht that, based upon its diameter at the base, the bullet which killed Officer Faulkner was not a .44 caliber and, instead, was “consistent” with being a .38 caliber (the same caliber as Mumia’s revolver). (N.T. [Fassnacht], 8/2/95: 154-171.)

Not only was there no reason to have put Fassnacht back on the witness stand and provided the District Attorney with the opportunity they had missed before lunch, Weinglass did not question Fassnacht about his use of the term “consistent” which is a classic qualifier used by expert witnesses. Weinglass, allegedly an expert on ballistics and firearms himself based upon his 50+ years as a criminal defense attorney, could have asked Fassnacht to explain that the bullet was also “consistent” with being a .357 magnum, a 9 mm, or a .380 caliber bullet, none of which could be fired from Mumia’s gun. Yet Weinglass failed to ask such questions, leaving the impression that his own expert had destroyed an important claim by the defense and proved up a point crucial to the prosecution.

Any attorney with even minimal experience and minimum preparation would have reviewed with their expert, before putting him on the witness stand, what answers he would give on relevant issues and anticipated questions from the other side. Weinglass had to have considered the possibility that the D.A. would ask such questions and had to have known that Fassnacht would answer the D.A.’s questions as he did. Given that knowledge, there was simply no reason for Weinglass not to have excused the witness before lunch after the D.A. finished his cross-examination.

Moreover, Weinglass should have thoroughly reviewed the .38 caliber issue with his expert before the expert testified so the expert himself would have suggested the other possible calibers to the D.A. instead of limiting his answer to the deceptive “consistent with a .38 caliber” response. Instead, Weinglass permitted his own expert to testify as if he were an expert for the prosecution instead of the defense. With even less justification, Weinglass failed to follow-up with his expert after re-cross-examination to clarify the “consistent” qualifier in the expert’s testimony.

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

Mumia had advised attorney Weinglass and attorney Williams that he was innocent, did not want to be executed or spend the rest of his life in prison, and had instructed them to seek to establish his innocence and secure his freedom. He trusted in attorneys Weinglass and Williams, had faith and confidence in them and in their professional judgment. Had attorneys Weinglass and Williams advised him to testify at the PCRA hearing in 1995 he would have done so. The only reason that he did not testify at the PCRA hearing is because attorneys Weinglass and Williams advised him not to testify. (Declaration of Mumia Abu-Jamal, Docket #D-1 [Exhibit “A”]; Petition for Post-Conviction Relief and/or Writ of Habeas corpus [Corrected Copy], Paragraph 486.) Mumia repeatedly stated on the record at the PCRA hearing, in response to questioning from Judge Sabo, that he was declining to testify on the advice of counsel. (N.T. [Jamal] 8/11/95, pages 5-9)

In the light of the evidence adduced by the prosecution at Mumia’s original trial and, in particular, in light of the fact that Mumia was found shot at the scene supposedly by a bullet from Police Officer Faulkner’s gun and that no defense case had been advanced at Mumia’s original trial, Mumia had no choice other than to testify at the original PCRA hearing if he was to have any prospect of establishing his actual innocence. Additionally, presenting Mumia’s testimony that he was innocent would have placed his claims that he did not have a fair trial in a much different context that would have defused the District Attorney’s constant references to Mumia as a “convicted copkiller.”

“Saving” such testimony for a re-trial makes no sense as there would not be a re-trial unless Mumia were successful in obtaining post-conviction relief in the Pennsylvania Courts or federal habeas relief in the federal courts.

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

Weinglass never put forth a claim in the federal habeas petition that Mumia’s constitutional right to defend himself at trial, under the Supreme Court decision in Faretta v. California (1975) 422 US 806, was violated when Judge Sabo removed Mumia as his own attorney and forced a court-appointed attorney on him. Mumia’s attorney on direct appeal violated his right to effective representation by failing to raise this point and Weinglass should have made an ineffectiveness claim against her as well, but failed to do so.

This was a very strong and highly important legal claim because, not only did the revocation of Mumia’s right to represent himself deform the entire trial and result in Mumia being excluded from the courtroom by the judge for approximately half the trial, but it is a “structural” claim which does not require a finding of “prejudice.” In other words, in order to win on this claim, which would overturn Mumia’s conviction, Mumia need not prove that he would have won his trial had he represented himself, he need only show that his right to represent himself was violated.

There was no justification for denying Mumia the right to represent himself although the judge falsely claimed that Mumia had been disruptive. The prosecutor himself indicated that the only reason to put Jackson, the “back-up attorney” (an advisor appointed by the judge to assist Mumia in representing himself) in charge of the case would be to give him standing to request the Pennsylvania Supreme Court to clarify his role as “back-up counsel.” The prosecutor specifically said to Judge Sabo that once such clarification was forthcoming “and we are again before this Court in this trial that Your Honor consider moving Mr. Jackson and reappointing or for that matter allowing Mr. Jamal to represent himself again.” (N.T. 6/17/82: 1.120) Just prior to saying this, the prosecutor acknowledged Mumia’s desire to represent himself and advised the judge of his own feeling that Mr. Jamal would accept the Supreme Court’s decision. (N.T. 6/17/82: 1.119) Had Mumia been disruptive of the proceedings, certainly the prosecutor would not have suggested that the judge restore him to pro se status, nor would the prosecutor have offered the opinion that Mr. Jamal would comply with the Supreme Court’s decision.

However, Leonard Weinglass never raised this extremely strong constitutional claim which, if granted, would overturn Mumia’s conviction.(5)

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, permitting the District Attorney to misrepresent to the court that there was no legal authority to support that claim.

Claim 11 in Weinglass’ federal habeas petition alleges that Mumia’s right to represent himself was violated when the trial judge took the “voir dire” (questioning of jurors during jury selection) out of his hands and made Mumia choose between the judge or his court-appointed “back-up attorney” conducting the voir dire. Although Weinglass cites the correct Supreme Court decision in support of that claim, McKaskle v. Wiggins, 465 US 168 (1984), he failed to quote to the court the specific part of that decision in which the Supreme Court listed “participating in voir dire” as one of the rights that a defendant representing himself has under Faretta v. California. (Extract from Petitioner’s Memo of Law in Support of Habeas Petition re Claim 11.)

This permitted the District Attorney to misrepresent the law to the court by pointing out that Weinglass had cited no specific legal authority in support of his claim that there is a constitutional right for a defendant representing himself to “voir dire” (question) potential jurors personally during the jury selection process. (Extract from Respondent’s Memo of Law in Opposition to Habeas Petition re Claim 11.)

Weinglass failed to respond to this claim by the prosecution and did not cite to the court the language from McKaskle which specifically recognizes that right.(6)

15. While still representing Mumia, Weinglass assisted his associate, Daniel Williams, in putting together Williams’ perfidious book, Executing Justice, which suggests that Mumia is guilty and which was the reason that Mumia fired Weinglass and Williams.

In March/April of 2001, Mumia discovered that attorney Williams was about to publish a book about his case entitled Executing Justice. When Mumia, after repeated requests to Williams, was finally provided a pre-publication copy of the book to read, he found that it falsely represented the facts of his case, disclosed confidential information, and repeatedly implied that Mumia was guilty. When Leonard Weinglass refused to take any action to stop publication of the book, despite Mumia’s requests that he do so, Mumia fired the entire legal team and retained his present attorneys: Nick Brown, a British barrister based in London; Eliot Lee Grossman, a California attorney based in Los Angeles; Marlene Kamish, a Chicago attorney; and J. Michael Farrell, a Philadelphia attorney retained as local counsel.

The publication of this book was in direct violation of Rule 1.8 of the Pennsylvania Rules of Professional Conduct which prohibits an attorney from even entering into a contract to publish a book about a current case because of the inherent conflict of interest in so doing, i.e. what will motivate sales of the book may not be in the best interests of the attorney’s client.

Although Williams claimed that Mumia consented to publication, this is an utter falsehood which is proved by the fact that Mumia immediately filed a lawsuit against Williams and his publisher in an attempt to stop publication.(7) Moreover, since publication of the book was a “conflict of interest” Mumia could not have consented to publication as a matter of law. Indeed Weinglass and Williams concealed their conflict of interest from Mumia with regard to the book by falsely telling him that publication of the book was in his interests.

In a letter to Mumia, Weinglass acknowledged that the book was a “pre-emptive strike” against the witness that Weinglass and Williams had “blocked from coming forward,” i.e. Arnold Beverly. (Weinglass letter to Jamal, dated February 22 [2001], Docket #D-1A [Exhibit “H”].)

Although Weinglass denied that he had anything to do with the writing of the book, and was only given a copy by Williams shortly before publication when it was in galley proofs, Williams in a sworn statement filed in Mumia’s lawsuit against him and the publisher, states that Weinglass helped him put the book together and never told him that the book would be harmful to Mumia. (Affidavit of Daniel R. Williams, Docket #D-1A [Exhibit “I”].)

The principal theme of the book, according to Williams, is ambiguity:

“Ah, ambiguity, [Cornel] West’s proclamation [of Mumia’s innocence] begs the question: is Mumia’s stature as a writer, the ‘truth’ of his message, unworthy of attention if he is guilty of firing a bullet into the brain of a young police officer? Does guilt for such an act necessarily muffle this voice for social justice? Or can such a guilty man nonetheless still speak to us, clearly and credibly? Indeed, even if his guilt somehow justifies extinguishing his right to remain alive, does it extinguish the worth of his message? Does Mumia’s worthiness, in short, as a voice for the voiceless depend upon his innocence? If so, why?”

Daniel R. Williams, Executing Justice (St. Martin’s Press, 2001), xvi. (Docket #D-1A [Exhibit “G”].)

However, the “ambiguity” in Mumia’s case was injected into it by Weinglass and Williams when they buried the evidence that proves Mumia is innocent.

OFFER OF PROOF: 112 QUESTIONS FOR LEONARD WEINGLASS

Appellant Mumia Abu-Jamal, by and through his Counsel of Record herein, hereby makes the following Offer of Proof:

If attorney Leonard Weinglass is called as a witness on remand, as requested in this motion, and if he is sworn to tell the truth and does testify truthfully, he will answer in the affirmative to the following questions; should he fail to so testify then his testimony would be impeached by the evidence cited above in Appellant’s remand motion or to be presented on remand:

1. Do you agree or disagree with the following statement made by Daniel Williams, your co-counsel when you represented Mumia Abu-Jamal, at a public meeting in New York in the summer of 2000: “In death penalty litigation, innocence is the name of the game”?

2. Is it not true that, in death penalty litigation, the Courts are more likely to give more favorable consideration to legal claims that a defendant had an unfair trial and his constitutional rights were violated, if the Courts think that the defendant is or may be innocent, in particular, if the defendant has been convicted of killing a police officer?

3. Is it not true that, in a statutory declaration sworn under penalty of perjury dated May 2, 2001, and filed in court by his present attorneys on May 4, 2001, after he had fired you and Daniel Williams as his attorneys, Mumia Abu-Jamal declares his innocence and sets forth his version of what happened on December 9, 1981?

4. Is it not true that, in the 1995 state post-conviction proceedings, Mumia Abu-Jamal did not testify and that the reason why he did not testify is that you advised him not to testify?

5. Is it not true that, during Mumia Abu-Jamal’s original trial in June 1982, attorney Jackson failed to present any positive defense case that Mumia was innocent?

6. Is it not true that, between 1992 and May 4, 2001, whilst you represented Mumia Abu-Jamal, you never raised attorney Jackson’s failure to present any positive defense case that Mumia was innocent as a claim of ineffective assistance of counsel on the part of attorney Jackson?

7. Is it not true that, between 1992 and May 4, 2001, whilst you represented Mumia Abu-Jamal, you failed to present any positive defense case that Mumia was innocent?

8. Is it not true that, in the 1995 state post-conviction proceedings and the subsequent federal habeas proceedings, you presented claims to the Courts that Robert Chobert and Cynthia White, the only two prosecution “eyewitnesses” who claimed actually to have seen Mumia Abu-Jamal shoot Police Officer Faulkner, had lied and given perjured testimony?

9. Is it not true that defense investigator, George Michael Newman, interviewed Robert Chobert before the 1995 state post-conviction relief proceedings when you were representing Mumia Abu-Jamal?

10. Is it not true that, when Michael Newman interviewed Robert Chobert before these state post-conviction proceedings, Robert Chobert retracted the testimony which he had given at Mumia Abu-Jamal’s original trial in 1982 and admitted not only that he had not seen the shooting, but also that he had not even been on the same side of the street when the shooting occurred?

11. Is it not true that you put Robert Chobert on the witness stand to testify during the 1995 state post-conviction proceedings?

12. Is it not true that, when you put Robert Chobert on the witness stand at the 1995 hearing, Michael Newman was outside court expecting to testify as to how, when he, Newman, had interviewed Chobert, Robert Chobert had retracted the testimony which he had given at Mumia Abu-Jamal’s original trial, if Robert Chobert denied that he had made such a retraction when he was on the witness stand?

13. Is it not true that, on direct examination, you failed to put to Robert Chobert that he had retracted his trial testimony when he had been interviewed by Michael Newman?

14. Is it not true that, after Robert Chobert had testified at the 1995 state post-conviction proceedings and after you had failed to put to Robert Chobert that he had retracted his trial testimony when he had been interviewed by Michael Newman, you went outside court and you falsely told Michael Newman that you did not require him to testify at the state post-conviction proceedings, because you had “got everything out of Chobert” when he, Robert Chobert, had testified?

15. Is it not true that, in March 1982, when Billy Cook was tried for assaulting Police Officer Faulkner on December 9, 1981, Cynthia White testified that there was a passenger in Billy Cook’s car when he was stopped by Police Officer Faulkner?

16. Is it not true that, at Mumia Abu-Jamal’s trial in June 1982, Cynthia White contradicted her previous testimony by stating that no one else was present at the crime scene other than Mumia and Billy Cook?

17. Is it not true that the prosecutor at both Billy Cook’s assault trial in March 1982 and Mumia Abu-Jamal’s own trial in June 1982 was the same person, Assistant District Attorney McGill?

18. Is it not true that, at Mumia Abu-Jamal’s trial in June 1982, attorney Jackson had the transcript of Cynthia White’s testimony at Billy Cook’s assault trial in his hands as he cross-examined Cynthia White, but he failed to impeach Cynthia White’s testimony at Mumia’s trial with her earlier testimony at Billy Cook’s trial that there was a passenger in Billy Cook’s car when he was stopped by Police Officer Faulkner?

19. Is it not true that, if attorney Jackson had impeached Cynthia White’s testimony at Mumia’s trial with her earlier testimony at Billy Cook’s trial that there was a passenger in Billy Cook’s car when he was stopped by Police Officer Faulkner,

(A) this would have clearly demonstrated to the jury that Cynthia White was knowingly giving perjured testimony so as to falsely incriminate Mumia?

(B) this would have clearly demonstrated to the jury that Assistant District Attorney McGill had knowingly suborned perjury from Cynthia White?

(C) this would have entirely undercut the essence of the prosecution’s case against Mumia Abu-Jamal, namely that only Mumia could have shot Police Officer Faulkner, because, apart from Billy Cook (who the prosecution had not even charged with the killing), no one other than Mumia was present at the crime scene?

(D) this would have completely undermined the integrity of the prosecution case against Mumia Abu-Jamal?

(E) this evidence alone would [have] made it almost impossible for the jury at the original trial to have found Mumia Abu-Jamal guilty beyond a reasonable doubt?

20. Is it not true that attorney Jackson’s failure to impeach Cynthia White’s testimony at Mumia’s trial with her earlier testimony at Billy Cook’s trial that there was a passenger in Billy Cook’s car when he was stopped by Police Officer Faulkner amounted to ineffective assistance of counsel on the part of attorney Jackson?

21. Is it not true that you never raised attorney Jackson’s failure to impeach Cynthia White’s testimony at Mumia’s trial with her earlier testimony at Billy Cook’s trial that there was a passenger in Billy Cook’s car when he was stopped by Police Officer Faulkner as a claim of ineffective assistance of counsel on the part of attorney Jackson?

22. Is it not true that one of the major arguments which the prosecution have used against Mumia Abu-Jamal is that, although his brother, Billy Cook, was present at the crime scene, Billy Cook has never testified on behalf of Mumia?

23. Is it not true that, in the 1995 state post-conviction proceedings, Judge Sabo justified upholding Mumia Abu-Jamal’s conviction, at least in part, upon the grounds that he was entitled to draw an adverse inference from your failure to call Billy Cook to testify?

24. Is it not true that, in May 1999, Billy Cook swore a statutory declaration under penalty of perjury dated May 15, 1999, stating that the passenger in the car was Kenneth Poppi Freeman and that, sometime after December 9, 1981, Kenneth Poppi Freeman had confessed to him that there had been a plot to kill the police officer, and that he, Freeman, was part of the plot, had been armed that night, and had participated in the shooting?

25. Is it not true that, in a further statutory declaration sworn under penalty of perjury dated April 29, 2001, and filed in court by his present attorneys on May 4, 2001, after Mumia Abu-Jamal had fired you and Daniel Williams as his attorneys, Billy Cook confirmed that the passenger in the car was Kenneth Poppi Freeman, that, sometime after December 9, 1981, Kenneth Poppi Freeman had confessed to him that there had been a plot to kill the police officer, and that he, Freeman, was part of the plot, had been armed that night, and had participated in the shooting, that Mumia Abu-Jamal did not shoot the police officer, that Mumia Abu-Jamal did not interfere in anything between him and the police officer, and that he, Billy Cook, had had nothing to do with the shooting?

26. Is it not true that attorney Jackson failed to interview Billy Cook before Mumia Abu-Jamal’s original trial in June 1982?

27. Is it not true that attorney Jackson failed to put Billy Cook on the stand during Mumia Abu-Jamal’s trial in June 1982?

28. Is it not true that you never raised either attorney Jackson’s failure to interview Billy Cook before Mumia Abu-Jamal’s original trial in June 1982 or attorney Jackson’s failure to put Billy Cook on the stand during Mumia Abu-Jamal’s trial as a claim of ineffective assistance of counsel on the part of attorney Jackson?

29. Is it not true that you never filed in court Billy Cook’s statutory declaration under penalty of perjury dated May 15, 1999?

30. Is it not true that, thereafter, the whereabouts of Billy Cook were always known by you or readily ascertainable by you and that you subsequently personally met with Billy Cook on at least one occasion?

31. Is it not true that in the federal habeas petition which you filed on behalf of Mumia Abu-Jamal in 1999 you sought to explain your failure to present Billy Cook’s evidence to the court by falsely claiming that Billy Cook had disappeared?

32. Is it not true that, in 1981, Kenneth Poppi Freeman was Billy Cook’s business partner?

33. Is it not true that, by the time of the 1995 state post- conviction proceedings, it was known by you that, after the shooting, the driving license of one, Arnold Howard, had been found on the body of Police Officer Faulkner?

34. Is it not true that you called Arnold Howard to testify at the 1995 state post-conviction hearings?

35. Is it not true that, at the 1995 state post-conviction hearings, Arnold Howard testified that, sometime prior to December 9, 1981, he had lent his driving license to Kenneth Freeman?

36. Is it not true that, at the 1995 state post-conviction hearings, Arnold Howard testified that both he, Howard, and Kenneth Freeman had been picked up by the police after the Faulkner shooting, that, whilst they were in police custody, he and Kenneth Freeman had been placed in police line ups, and Kenneth Freeman was twice picked out of the line ups as the person who had shot Police Officer Faulkner?

37. Is it not true that, in a statutory declaration sworn under penalty dated August 31, 2001, Arnold Howard has stated that the person who had picked Kenneth Freeman out of these police line ups as the person who had shot Police Officer Faulkner was Cynthia White and that he, Howard, had told you, Leonard Weinglass, this before he testified in 1995?

38. Is it not true that, when Arnold Howard testified in 1995, you failed to elicit from him that it was Cynthia White who had picked Kenneth Freeman out of these police line ups as the person who had shot Police Officer Faulkner?

39. Is it not true that, in his statutory declaration sworn under penalty dated August 31, 2001, Arnold Howard has stated that the police tested Kenneth Freeman’s hands for gun powder when he was detained shortly after the Faulkner shooting and that he, Howard, had told you, Leonard Weinglass, this before he testified in 1995?

40. Is it not true that, when Arnold Howard testified in 1995, you failed to elicit from him that the police tested Kenneth Freeman’s hands for gun powder when he was detained shortly after the Faulkner shooting?

41. Is it not true that, in 1995, you told, amongst others, your then co-counsel Rachel Wolkenstein and defense investigator Michael Newman that you had received a death threat from Ron Freeman, the brother of Kenneth Freeman, who had told you that you would be killed if you presented any evidence on behalf of Mumia Abu-Jamal which implicated Kenneth Freeman in the shooting?

42. Is it not true that, between 1992 and May 4, 2001, whilst you represented Mumia Abu-Jamal, you never raised attorney Jackson’s failure to put Kenneth Freeman on the witness stand at the original trial and to accuse him of shooting Police Officer Faulkner as a claim of ineffective assistance of counsel on the part of attorney Jackson?

43. Is it not true that, on July 20, 1995, the Court ordered the Clerk of the Quarter Sessions to release into the custody of the Commonwealth of Pennsylvania’s representative, Detective Joseph Walsh, all of the trial exhibits and attachments currently within the court’s custody?

44. Is it not true that this Court Order was extraordinary, because it ordered the release of the physical evidence in the case into the custody of one of the parties in the case, thereby breaking the chain of custody and providing an opportunity for the Commonwealth, one of the parties in the case, to tamper with this physical evidence?

45. Is it not true that you failed to object to this Court Order being made?

46. Is it not true that, in any event, you refused to inspect any of this physical evidence?

47. Is it not true that, during the 1995 state post-conviction proceedings, you put a ballistics expert, Mr. Fassnacht, on the witness stand to testify on Mumia Abu-Jamal’s behalf when he, Mr. Fassnacht, had refused personally to examine the physical evidence upon which he was supposedly offering his expert opinion?

48. Is it not true that, in June 1999, whilst you were representing Mumia Abu- Jamal, Arnold Beverly swore a statutory declaration under penalty of perjury confessing to the killing of Police Officer Faulkner and completely exonerating Mumia Abu-Jamal and that you had this statutory declaration in your possession from June 8, 1999, onwards?

49. Is it not true that, by June 8, 1999, Arnold Beverly’s confession was corroborated by the results of a lie detector test conducted by the leading polygraph examiner, Dr. Charles Honts, a Professor of Psychology at Boise State University?

50. Is it not true that, prior to June 1999, you had previously consulted Dr. Charles Honts as an expert polygraph examiner?

51. Is it not true that, in a statutory declaration sworn under penalty of perjury dated June 30, 2001, Dr. Honts has stated that you were “rude and hostile” when you discussed with him the results of the lie detector test which he had conducted and which corroborated Beverly’s confession?

52. Is it not true that, during the course of these discussions, you falsely told Dr. Honts that DNA testing had been carried out which contradicted Beverly?

53. Is it not true that no DNA testing has ever been done in Mumia Abu-Jamal’s case?

54. Is it not true that, in order to do DNA testing, it would have been necessary to obtain a court order permitting DNA testing to be done and no such court order has been made?

55. Is it not true that, by June 1999, your co-counsel working on Mumia Abu-Jamal’s case had prepared some 400 pages of internal, counsel to counsel memoranda and supporting documentation demonstrating all of the many and various ways in which both the evidence which had been available at the time of Mumia Abu-Jamal’s original trial and more recently discovered evidence corroborated and supported Arnold Beverly’s confession?

56. Is it not true, for example, that:

(A) Arnold Beverly’s confession (in which he states that he was wearing a green army jacket) is corroborated by the references of at least five witnesses to a black male wearing a green army jacket or coat being present at the scene and, except in one instance, implicitly, if not explicitly identifying this man as the shooter when the police property records prove that neither Mumia nor Billy Cook were wearing a green jacket and there is no green army jacket or coat in the evidence?

(B) Arnold Beverly’s description in his confession of how Police Officer Faulkner fell on his knee on the sidewalk after he was initially shot is corroborated by the finding in the post mortem report that there was a 2-inch wide, 3/4-inch high superficial red-brown skin denudation in the bottom center of Police Officer Faulkner’s left knee and Dr. Hoder, the Assistant Medical Examiner’s trial testimony that this type of injury was consistent with Police Officer Faulkner falling on his left knee?

(C) Arnold Beverly’s description in his confession of the shooting and how he had an accomplice is corroborated by the physical evidence of the bullets which were found in and about and to the west of the doorway to 1234 Locust and the evidence of the number of bullets which were found at the scene, which prove that more than one person was involved in the shooting of Police Officer Faulkner?

(D) Arnold Beverly’s confession is corroborated by the evidence of seven witnesses who have stated at various times that at least one man fled the scene after the shooting and the contemporaneous police radio log on which it was reported that Police Officer Faulkner’s assailant had fled?

(E) Arnold Beverly’s confession is corroborated by the fact that, in December 1981, there were at least three on-going FBI investigations of center city police corruption taking place in Philadelphia, that these investigations ultimately led to indictments and convictions of some thirty police officers, including the Deputy Commissioner of the Police Force, the Commander of the Central Division and the ranking officer supervising the investigation at the scene, and that some seventeen officers who played some role in the arrest of Mumia and the investigation following the shooting of Police Officer Faulkner were either disciplined or indicted for crimes or found guilty of committing acts of corruption or brutality or resigned from the police force as a result of being named by other corrupt police officers?

(F) Arnold Beverly’s confession is corroborated by the police’s failure even to secure the crime scene after the shooting?

(G) Arnold Beverly’s confession is corroborated by the police’s failure to test the hands of either Police Officer Faulkner or Mumia Abu-Jamal for traces of gun powder?

(H) Arnold Beverly’s confession is corroborated by the evidence of three eye-witnesses who confirm that police officers were present at the crime scene at the time of the shooting and a fourth eye witness who confirms that, immediately before the shooting, there were two people standing in precisely the same position as Arnold Beverly states that there were two undercover officers.

(I) Arnold Beverly’s confession is corroborated by the entry made by Stefan Makuch in the contemporaneous medical examiner’s log recording that, at about 9 am on December 9, 1981, he was told by a homicide detective, Sergeant Westerman, that Mumia Abu-Jamal was “shot subsequently by arriving police reinforcements”?

57. Is it not true that neither you nor any of your co-counsel produced a single internal, counsel to counsel memorandum challenging the analysis in these memoranda or in any way questioning the reliability of Arnold Beverly’s confession?

58. Is it not true that, on page 3 of your copy of Richard Genova’s memorandum “Shooting Scenario and New Evidence” dated 11^th May 1999 in the Section entitled “New Information Better Fits Events Than Sabo’s and PA Supreme Court’s Findings”, you scribbled in the margin the words “Suggests M[umia] shot by another cop”?

59. Is it not true that, in 1992, Rachel Wolkenstein first told you that she had interviewed Arnold Beverly and that he, Beverly, had told her that, even though he would not testify about anything which he knew, Mumia had not shot Police Officer Faulkner, but, rather, there had been a plot by Philadelphia police officers to kill Faulkner, because it was believed that he was interfering with police corruption involving drugs and prostitution in the City Center?

60. Is it not true that, when Rachel Wolkenstein presented you with this information:

(A) You bluntly told her that you were not interested in pursuing this information, that it was too hot to handle and that you did not want to discuss it further?

(B) Thereafter, you refused to discuss, let alone investigate, Beverly’s account right through the 1995 state post-conviction proceedings?

61. Is it not true that, in October 1995, even though you were refusing to investigate Beverly’s account, you announced to a large public meeting in San Francisco that there were rumors that Police Officer Faulkner was an FBI informant and that he had been set up to be killed by fellow officers?

62. Is it not true that, if someone comes forward and confesses to the crime for which your client has been convicted and maintains his innocence, the obvious next step for any attorney who is honestly acting in the best interests of such client to take is to analyze all of the available evidence, both in the record and outside it, in order to ascertain to what extent this other person’s confession is corroborated by the rest of the available evidence in the case?

63. Is it not true that, when, in 1999, Beverly confessed to Rachel Wolkenstein that he had killed Police Officer Faulkner, you refused to engage in rational discussion about how Beverly’s confession squared with any of the supporting evidence?

64. Do you agree or disagree with the following statement made by your co-counsel, Daniel Williams, in his unauthorized book about Mumia’s case, Executing Justice: “Len sought out ways to push this witness [Arnold Beverly] on to the trash heap”?

65. Is it not true that, in 1999, the argument put forward by your co-counsel, Daniel Williams, against presenting Arnold Beverly’s confession to the Courts was that, if accepted, Beverly’s account would mean that the police had knowingly framed an innocent man, and that it was “unbelievable” that the police or the prosecution would do that?

66. Is it not true that Mumia Abu-Jamal is innocent and that he was knowingly framed by the police?

67. Is it not true that, since 1996, under Pennsylvania law, there has been a 60 day time limit for presenting newly discovered evidence to the Courts?

68. Is it not true that you failed to present Arnold Beverly’s confession to the Courts within 60 days or at all?

69. Is it not true that, between 1992 and May 4, 2001, whilst you represented Mumia Abu-Jamal, you failed to present any positive defense case that Mumia was innocent?

70. Is it not true that, pursuant to the Supreme Court decision in Faretta v. California (1975) 422 US 806, Mumia had a constitutional right to defend himself at his original trial?

71. Is it not true that, if a defendant is able to establish that his constitutional right to defend himself at his original trial was violated, he does not have to establish any “prejudice” as a result of this violation of his constitutional rights in order to have his conviction overturned?

72. Is it not true that, in McKaskle v. Wiggins, 465 US 168 (1984), the Supreme Court listed “participating in voir dire” (jury selection) as one of the rights that a defendant representing himself has under Faretta?

73. Is it not true that Mumia Abu-Jamal sought to exercise his constitutional right under Faretta to defend himself at his original trial?

74. Is it not true that, during the voir dire at Mumia Abu-Jamal’s original trial, Judge Sabo took the voir dire out of Mumia Abu-Jamal’s hands and made him choose between the Judge or his court-appointed, “back-up” attorney Jackson conducting the voir dire?

75. Is it not true that, in Claim 11 of the Federal Habeas Petition which you and your co-counsel, Daniel Williams, wrote and filed on behalf of Mumia Abu-Jamal in October 1999, you pleaded a claim for relief based on this violation of Mumia Abu-Jamal’s constitutional rights?

76. Is it not true that the District Attorney opposed this claim for relief on the grounds that you had failed to cite any specific legal authority in support of your claim that there is a constitutional right for a defendant representing himself to “voir dire” (question) potential jurors personally during the jury selection process?

77. Is it not true that you failed to respond to this false claim by the District Attorney and that you failed to cite to the Court the language from the Supreme Court in McKaskle at page 174 which specifically recognizes this right?

78. Is it not true that, in July 2000, you filed a motion in Federal Court to amend Mumia Abu-Jamal’s petition for habeas corpus to add a claim that Mumia Abu-Jamal’s Faretta rights to represent himself had been violated by Judge Sabo’s refusal to allow Mumia’s friend, John Africa, to sit at counsel’s table during Mumia’s original trial to advise him whilst he conducted his own defense?

79. Is it not true that you failed to cite any legal authority in support of this claim?

80. Is it not true that the District Attorney opposed this motion to amend on the grounds that you had failed to cite any legal authority in support of this claim?

81. Is it not true that legal authorities in support of this claim had been cited in the amicus brief previously submitted to the District Court by 22 Members of the British Parliament and the amicus brief previously submitted to the District Court by the Chicana/Chicano Studies Foundation?

82. Is it not true that you failed to cite these authorities or even to incorporate these amicus briefs into your motion to amend by reference?

83. Is it not true that your motion to amend Mumia Abu-Jamal’s petition for habeas corpus to add this so-called “John Africa” claim was denied, in part, on the grounds that you had failed to cite any legal authorities in support of the claim?

84. Is it not true that Mumia Abu-Jamal fired you and your co-counsel, Daniel Williams, in March 2001, after he read a proof copy of Daniel Williams’ unauthorized and fallacious book about his case, Executing Justice: An Inside Account of the Case of Mumia Abu-Jamal, and after you refused to take any steps to try and prevent publication of this book?

85. Is it not true that Daniel Williams received a $30,000 advance from St. Martin’s Press for writing Executing Justice?

86. Is it not true that, in an affidavit dated March 21, 2001, and sworn by Daniel Williams in Mumia Abu-Jamal v. St. Martin’s Press and Daniel R. Williams, No. 01. Civ. 2850, United States District Court for the Southern District of New York (proceedings which other attorneys undertook on Mumia’s behalf to try and prevent publication of Executing Justice), Daniel Williams has stated that:

(A) You assisted him in putting the book together;

(B) You never informed him that the book was in any way harmful to Mumia’s legal case;

(C) In your public statements, you had repudiated any suggestion that the book harms Mumia’s legal case.

87. Is it not true that Rule IV, Local Rules of Disciplinary Enforcement, United States District Court for the Eastern District of Pennsylvania and Rule 1.8 of Pennsylvania Rules of Professional Conduct (Conflict of Interest: Prohibited Transactions) prohibit an attorney from contracting to publish a book about the subject of their representation of a client while representing that client and that the Official comment to Rule 1.8 states that: “an agreement by which a lawyer acquires literary or media rights concerning the conduct of representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation”?

88. Is it not true that Daniel Williams’ book was written in direct violation of Rule IV, Local Rules of Disciplinary Enforcement, United States District Court for the Eastern District of Pennsylvania and Rule 1.8 of Pennsylvania Rules of Professional Conduct?

89. Is it not true that, according to Williams, the theme of the book is ambiguity?

90. Is it not true that the introduction to Daniel Williams’ book about the Mumia Abu-Jamal case, Executing Justice, contains the following passage at p. xvi: “Ah, ambiguity, [Cornel] West’s proclamation [of Mumia’s innocence] begs the question: is Mumia’s stature as a writer, the ‘truth’ of his message, unworthy of attention if he is guilty of firing a bullet into the brain of a young police officer? Does guilt for such an act necessarily muffle this voice for social justice? Or can such a guilty man nonetheless still speak to us, clearly and credibly? Indeed, even if his guilt somehow justifies extinguishing his right to remain alive, does it extinguish the worth of his message? Does Mumia’s worthiness, in short, as a voice for the voiceless depend upon his innocence? If so, why?”

91. Is it not true that, to the reader, the natural meaning of this passage implies that Daniel Williams, as one of Mumia Abu-Jamal’s attorneys, believes that he is guilty?

92. Is it not true that, in his statutory declaration sworn under penalty of perjury dated May 2, 2001, Mumia Abu-Jamal states that he was sitting in a cab in 13^th Street (and not the parking lot) filling out his log/trip sheet, when he heard what sounded like a gunshot (implicitly the first shot fired at Police Officer Faulkner), that he looked in the rear view mirror and saw people running up and down Locust, that as he scanned up and down Locust, he recognized his brother, apparently distressed, and that he immediately got out of the cab and ran towards his brother who was screaming?

93. Is it not true that it is the prosecution’s case against Mumia Abu-Jamal that Mumia ran from the parking lot and intervened in a scuffle between Police Officer Faulkner) by shooting dead Faulkner?

94. Is it not true that the caption under one of the photographs in Executing Justice states as follows: “The parking lot through which Mumia ran to aid his brother. Was killing on his mind as he raced towards his brother, Billy Cook, who was in a scuffle with Officer Faulkner?”

95. Is it not true that, to the reader, the natural meaning of this passage implies that Daniel Williams, as one of Mumia Abu-Jamal’s attorneys, accepts the prosecution case against Mumia and believes that Mumia did shoot Police Officer Faulkner?

96. Is it not true that it is the prosecution’s case against Mumia Abu-Jamal that Mumia was shot by Police Officer Faulkner whilst he was lying in a prone position on the sidewalk after being shot in the back and just before he was shot in the face by a gunman standing over him?

97. Is it not true that the trajectory of the bullet which was found in Mumia Abu-Jamal, which was from his upper chest to his lower back, proves that Police Officer Faulkner could not have shot Mumia Abu-Jamal from this prone position?

98. Is it not true that, whilst you represented Mumia Abu-Jamal, one of the grounds upon which you sought to challenge Mumia’s conviction both in the state post-conviction proceedings and in the federal habeas corpus proceedings was that the trajectory of the bullet which was found in Mumia Abu-Jamal, which was from his upper chest to his lower back, proves that Police Officer Faulkner could not have shot Mumia Abu-Jamal from this prone position?

99. Is it not true that, at about 9 am on December 9, 1981, Stefan Makuch made an entry in the contemporaneous medical examiner’s log recording that he was told by a homicide detective, Sergeant Westerman, that Mumia Abu-Jamal was “shot subsequently by arriving police reinforcements”?

100. Is it not true that the caption under one of the photographs in Executing Justice states as follows: “Lost freedom and lost promise—Mumia being transported to court after his recovery from a gunshot wound from Officer Faulkner’s gun”?

101. Is it not true that, to the reader, the natural meaning of this passage implies that Daniel Williams, as one of Mumia Abu-Jamal’s attorneys, accepts the prosecution case against Mumia, that he believes that Police Officer Faulkner did shoot Mumia, and that he does not believe in one of the central tenets of the defense case which he is presenting to the Courts on Mumia’s behalf?

102. Is it not true that, to the reader, the natural meaning of Daniel Williams’ whole book is that it implies that Daniel Williams, as one of Mumia Abu-Jamal’s attorneys, believes that he is guilty?

103. Is it not true that this is why Mumia Abu-Jamal fired you and Daniel Williams as his attorneys immediately after he had read the proof copy of Executing Justice and after you had refused to take any steps to prevent publication?

104. Is it not true that, in every, or if not every, in almost every briefing or pleading which the District Attorney has submitted to the Courts since Executing Justice was published, the District Attorney has used and quoted passages from Executing Justice against Mumia Abu-Jamal and to attack the case being presented by him and on his behalf?

105. Is it not true that, in a letter dated February 22, 2001, you wrote to Mumia Abu-Jamal generally commending the book Executing Justice to him?

106. Is it not true that, in this letter to Mumia Abu-Jamal, you proffered Daniel Williams’ purported explanations for including two of the most obviously damaging passages in Executing Justice?

107. Is it not true that, in this letter to Mumia Abu-Jamal, you described Executing Justice as being a “pre-emptive strike” against the evidence of Arnold Beverly and his confession, the witness you had “blocked” from coming forward?

108. Is it not true that the District Attorney was never going to present Arnold Beverly or Arnold Beverly’s confession to the Courts, because Arnold Beverly completely exonerates Mumia Abu-Jamal?

109. Is it not true that the only persons who were ever likely to present Arnold Beverly’s confession to the Courts were Mumia Abu-Jamal and attorneys acting on his behalf as they tried to prove Mumia Abu-Jamal’s innocence?

110. Is it not true that, as you stated in your letter dated February 22, 2001, that the purpose of Executing Justice was to try and prevent Mumia Abu-Jamal ever making use of Arnold Beverly’s testimony or confession to prove his innocence?

111. Is it not true that, in no circumstances whatsoever, could it ever be in Mumia Abu-Jamal’s best interests to try to prevent Mumia Abu-Jamal ever making use of Arnold Beverly’s testimony or confession to prove his innocence?

112. Is it not true that the only persons in whose interests it was to try to prevent Mumia Abu-Jamal ever making use of Arnold Beverly’s testimony or confession to prove his innocence were you and Daniel Williams, who had “blocked” Arnold Beverly from coming forward, and anyone with an interest in seeing Mumia Abu-Jamal executed or spending the rest of his life in prison?

CONCLUSION

For the foregoing reasons it is respectfully requested that Appellant Jamal’s motion(s) be granted.

Respectfully submitted,

MUMIA ABU-JAMAL

Appellant

NICK BROWN

MARLENE KAMISH

ELIOT LEE GROSSMAN

Attorneys for Appellant Mumia Abu-Jamal

J. MICHAEL FARRELL

Local Counsel for Appellant Mumia Abu-Jamal

[23 May 2003]