Philadelphia, PA. Attorneys for death row journalist Mumia Abu-Jamal submitted an unusual motion to the Pennsylvania Supreme Court on May 7, 2003, asking the court to order its “prothonotary” (court clerk) to file a “remand motion” they had previously submitted on April 24, 2003, but which the clerk had refused to file. According to Mumia’s attorneys, the clerk’s refusal to file the motion was “an unlawful act of bureaucratic usurpation” which violated Mumia’s rights under the 14th Amendment to the U.S. Constitution.
The remand motion requests that Mumia’s case be ordered back to a lower court to take testimony from Kenneth Pate who states in a sworn declaration that, in a telephone conversation with his half-sister, Priscilla Durham, in 1983 or 1984 she repudiated her testimony for the prosecution at Mumia’s 1981 trial for the murder of Police Officer Daniel Faulkner.
According to Pate’s sworn declaration, Durham, who was a security guard at the hospital where Mumia and Faulkner were brought after both sustained gunshot wounds on December 9, 1981, told Pate that the only thing she heard Mumia say when he was in the hospital was “Get off me, get off me, they’re killing me”
when police were interfering with his medical treatment. However, at Mumia’s trial, Durham testified that she heard him shout out “I shot the motherfucker and I hope he dies” while he lay on the floor of the emergency room surrounded by numerous police officers. Although none of the officers reported this alleged statement for over two months, and the officer responsible for guarding Mumia filed a written report the next day which said that Mumia had made no statements, the prosecution used Durham’s testimony to falsely claim that Mumia had confessed to the killing.
According to Mumia’s attorneys, the Supreme Court’s “prothonotary” refused to file the Pate remand motion on the basis of a rule, Appellate Rule 2501(a), which does not apply. That rule prohibits the filing of a “brief, memorandum or letter” after a case is taken under submission by the court. Mumia’s attorneys argue that their “remand motion” is obviously not a “brief, memorandum or letter” and, therefore, the rule does not apply. Mumia’s attorneys also point out that, even if a “motion” were wrongly considered to be a “brief, memorandum or letter,” Rule 2501(a) provides that application may be made to waive the prohibitions of that rule and their remand motion included such an application.
In their current motion to the Pennsylvania Supreme Court, Mumia’s attorneys argue that if it does not order its clerk to file the Pate remand motion Mumia will be deprived of his rights to “due process” and “equal protection” of the law under the 14th Amendment to the U.S. Constitution “by an unlawful act of
bureaucratic usurpation of this Court’s own authority to consider and rule upon motions or applications duly presented for filing.”
[Text of Pate declaration and motion follows.]
For more information contact Eliot Grossman: (626) 943-1945.
DECLARATION OF KENNETH PATE
I, KENNETH PATE, DECLARE:
1. I am related to Priscilla Durham, now known as Priscilla Ahmed, through marriage: My father, Perry Abner, married Priscilla’s mother, Dolores Durham, about 20-25 years ago.
2. Sometime around the end of 1983 or the beginning of 1984 I had a telephone conversation with Priscilla Durham in which the subject of Mumia Abu-Jamal came up.
3. I asked Priscilla how she was and she asked me how I was. I was kind of teasing her about her job as a security guard at the hospital, saying “why would a woman need to carry a big old gun like that?”
4. Priscilla began to complain about the way she was treated on the job, about her back hurting, and them “treating her like that” after all she did for them they laid her off.
5. Then Priscilla started talking about Mumia Abu-Jamal. She said that when the police brought him in that night she was working at the hospital. Mumia was all bloody and the police were interfering with his treatment, saying “let him die.”
6. Priscilla said that the police told her that she was part of the
“brotherhood” of police since she was a security guard and that she had to stick with them and say that she heard Mumia say that he killed the police officer, when they brought Mumia in on a stretcher.
7. I asked Priscilla: “Did you hear him say that?” Priscilla said:
“All I heard him say was: ‘Get off me, get off me, they’re trying to kill me.'”
8. Priscilla also said there was a lot of chaos and confusion going on when the police brought Mumia in and when they were talking to her.
9. I am presently imprisoned at SCI Greene where I have been for about 3 years. At the time of my telephone conversation with Priscilla Durham, described above, I was imprisoned at SCI Graterford.
10. Back in 1982-1984 Priscilla and I had many telephone conversations when I was at SCI Graterford. I would call her house to talk to her or her daughter Sharon. Since then Priscilla and I have written each other many times.
11. Sometime in 1984, after I was transferred to SCI Huntington, I read a newspaper article about the Mumia Abu-Jamal case. It said Priscilla Durham had testified at Mumia’s trial that when she was working as a security guard at the hospital she heard Mumia say that he had killed the police officer. When I read this I realized it was a different story from what she had told me.
12. Mumia was also imprisoned at SCI Huntington at that time. I wrote a note to him about Priscilla and gave it to another inmate who was a “tier worker” to pass it on to him.
13. Sometime between December of last year (2002) and February of this year (2003) I was out in the prison yard at the same time Mumia was. I remember that the weather was still cold. We were a couple of cages away from each other. I mentioned to him about the telephone conversation I had with Priscilla back in 1983 or 1984 and that she said she did –not– hear Mumia say anything about killing the police officer. I told him that I thought she was still scared about telling the truth about what happened but maybe she would.
14. My nickname or street name is “Kenny Stax.” That is how I am known by Mumia and other inmates.
15. I am willing to take a lie detector test to prove I am telling the truth about my conversation with Priscilla Durham.
This declaration is made subject to the penalties provided for in 18 Pa. Cons. Stats. Sec. 4904 for unsworn false statements to authorities.
I declare under penalty of perjury under the laws of the United States of America that this declaration is true and correct and was signed by me on April 18, 2003, at Waynesburg, PA.
IN THE SUPREME COURT OF THE COMMONWEALTH OF PENNSYLVANIA EASTERN DIVISION
Docket No. 364 CAP
APPELLANT MUMIA ABU-JAMAL’S APPLICATION FOR RELIEF UNDER APPELLATE RULE 123 AND/OR REQUEST FOR ORDER INSTRUCTING THE PROTHONOTARY OF THE PENNSYLVANIA
SUPREME COURT TO FILE APPELLANT JAMAL’S APPLICATION FOR RELIEF UNDER APPELLATE RULE 123 AND MOTION TO TAKE TESTIMONY FROM KENNETH PATE (ATTACHED AS EXHIBIT “1” HERETO).
COMES NOW Appellant Mumia Abu-Jamal and, pursuant to Appellate Rule 123, hereby applies to the Pennsylvania Supreme Court for relief under Appellate Rule 123 and/or requests an Order directing the Prothonotary of the Pennsylvania Supreme Court to File Appellant Jamal’s “Application for Relief under Appellate Rule 123 and Motion to Take Testimony from Kenneth Pate (Attached as Exhibit “1” hereto) and, in support thereof, alleges and says as follows:
1. On April 24, 2003, Appellant Mumia Abu-Jamal, duly submitted for filing to this Court his “Application for Relief under Appellate Rule 123 and Motion to Take Testimony from Kenneth Pate” with Declaration of Kenneth Pate (Attached as Exhibit “1” hereto), which he had a right to have filed and considered by this Court.
2. The Prothonotary of this Court, rather than filing the aforesaid motion by Appellant, as was his legal duty and obligation, cited Appellate Rule 2501(a) and, by letter dated May 1, 2003 (a true copy of which is attached as Exhibit “2” hereto), refused to file the motion, although Appellate Rule 2501(a) does not apply. In so doing, the Prothonotary exceeded his legal authority and committed an unlawful ultra vires act which it is this Court’s duty to remedy under its inherent powers to regulate its own proceedings as well as its duty to insure “equal protection” and “due process” of law under the 14th Amendment to the United States Constitution and the “Supremacy Clause” of the Constitution.
3. Appellate Rule 2501(a) states:
“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]
4. An “Application for Relief under Appellate Rule 123 and Motion for Remand” is obviously not a “brief, memorandum or letter” and therefore, on its face, Appellate Rule 2501(a) does not and cannot apply to Appellant Jamal’s “Application for Relief under Appellate Rule 123 and Motion to Take Testimony from Kenneth Pate.” Therefore, the Prothonotary was without authority to refuse to file the aforesaid motion and should have filed it.
5. Moreover, even if Appellate Rule 2501(a) applied to the aforesaid motion, that rule specifically provides that one may make “application” to file any document which would otherwise be barred by that rule. The aforesaid motion specifically identified itself as such an “application” for relief and, in the body of same, Appellant stated that although he was “unaware of any rule
prohibiting the filing of a remand motion after a case is taken under submission in this Court” he was requesting relief therefrom should there be any such rule. Since application for relief within the terms of Appellate Rule 2501(a) was thereby made by Appellant Jamal, the Prothonotary had no legal right or authority to refuse to file said application so that this Court might
rule on it.
6. If this Court does not act to order the filing of the aforesaid motion, then Appellant Jamal will be deprived of his rights to “due process” and “equal protection” of the law under the 14th Amendment to the United States Constitution by an unlawful act of bureaucratic usurpation of this Court’s own authority to consider and rule upon motions or applications duly presented for
Dated: May 7, 2003
SCI Greene, No. AM8335
175 Progress Drive
Waynesburg, PA 15370-8090
4 New Square, Lincoln’s Inn
London WC2A 3RJ, United Kingdom
P.O. Box 08376
Chicago, IL 60608
ELIOT LEE GROSSMAN
Law Office of Eliot Lee Grossman
La Rotunda Building
248 East Main Street, Suite 100
Alhambra, CA 91801
Attorneys for Appellant Mumia Abu-Jamal
J. MICHAEL FARRELL
718 Arch Street, Suite 402 South
Philadelphia, PA 19106
Local Counsel for Appellant Mumia Abu-Jamal
J. MICHAEL FARRELL
Attorneys for Appellant