UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
MUMIA ABU-JAMAL, Petitioner
Case No. 99 Civ 5089 (YOHN)
-vs-
MARTIN HORN, Commissioner,
Pennsylvania Department of Corrections,
and CONNOR BLAINE, Superintendent
of the State Correctional Institution at Greene, Defendants.
PETITIONER'S BRIEF IN SUPPORT OF MOTION FOR NICHOLAS R.D. BROWN, ESQ. TO BE ADMITTED PRO HAC VICE AS ONE OF THE COUNSEL FOR PETITIONER
Introduction
1. It is established practice in the courts of the United States, including the Supreme Court itself, to admit attorneys from foreign nations pro hac vice. British barristers have routinely been admitted to practice in American courts in a number of cases. Nicholas R.D. Brown, Esq. (or Nick Brown, as he prefers to be called) is an experienced barrister who is eminently qualified for admission pro hac to the bar of this Honorable Court. There is no basis in law for the Respondent's opposition to Petitioner's motion for the pro hac admission of Barrister Brown.
2. Additionally, Petitioner has a constitutional right to be represented by retained counsel of his choice in these proceedings, at no expense to the government. This constitutional right limits the discretion of the District Court to deny pro hac admission to a qualified attorney such as Barrister Brown.
3. Finally, the Commonwealth Respondents and their counsel, the Philadelphia District Attorneys' Office, lack standing to intercede in Petitioner's choice of counsel by objecting to the pro hac admission of Mr. Brown. Accordingly, Petitioner's motion for pro hac admission of barrister Nick Brown as one of Petitioner's counsel should be granted.
I. BRITISH BARRISTER NICK BROWN IS EMINENTLY QUALIFIED FOR ADMISSION PRO HAC TO THE BAR OF THE DISTRICT COURT.
A. BRITISH BARRISTERS ARE QUALIFIED FOR PRO HAC ADMISSION TO PRACTICE IN OUR FEDERAL COURTS.
4. In Dennis v. United States, 340 U.S. 887, 888 (1950), the Supreme Court granted a motion to admit a British barrister pro hac vice to appear before it in a matter involving the interpretation and constitutionality of a uniquely American piece of legislation. the Smith Act, holding as follows:
"Adequate presentation by qualified counsel of issues relevant to a litigation is indispensable to the adjudicatory process of this Court. To that end, litigants have the unquestioned right to make their choice from the members of the bar of this Court, or even to be represented by nonnembers of this bar who are given special leave under appropriate circumstances to appear pro hac vice...
"Solicitous regard for every interest of the petitioners is part of the due administration of justice... If, on that day [when oral argument is set], counsel for petitioners deem it desirable to associate with themselves any other counsel, whether a member of the bar of this Court or, pro hac vice, a member of the bar of England or Australia, they are of course free do so ..
5. The Supreme Court emphasized in Denniss that "[i]ntrinsic professional competence alone matters" with regard to pro hac admission and no justice even so much as suggested that a British barrister might not be qualified to appear before the highest court in this land. Indeed, present Supreme Court Rule 6.2 provides specifically that "[a]n attorney qualified to practice in the courts of a foreign state may be permitted to argue pro hac vice.
6. In Reese v. Peters, 926 F.2d. 668, 669-670 (7th Cir. 1991), the Seventh Circuit noted that an attorney from a "foreign nation" may be admitted to practice in our federal courts pro hac vice, tracing this custom back to the definition of "counsel" at the time of adoption of the U.S. Constitution as "a person deemed by the court fit to act as another person's legal representative, and inscribed on the list of attorneys: "Counsel" in 1791 meant a person deemed by the court fit to act as another person's legal representative and inscribed on the list of attorneys. See Section 35 of the Judiciary Act of 1789. There were no bar exams, no unified bars, no annual dues, no formal qualifications. Although there were a handful of law schools, none was accredited by the ABA (there was no ABA) and few students completed the program. John Marshall dropped out of law school after a few months of study, Leonard Baker, John Marshall: A Life in Law 61-66 (1974). Would-be lawyers earned the right to practice through their apprenticeship, appearing in court under the tutelage of a practitioner until they satisfied the presiding judge that they could handle cases independently. Part of that tradition survives in the practice of admission pro hac vice. Courts grant motions allowing representation by persons who do not belong to their bars. Usually the person admitted pro hac belongs to some bar. But it may be the bar of a distant state or a foreign nation. The enduring practice of admission pro hac vice demonstrates that there is no one-to-one correspondence between 'Counsel' and membership in the local bar." [emphasis added]
7. There are any number of cases in which attorneys from foreign nations have been admitted pro hac to appear in American courts, including Peltier v. Henman, 997 F2d 461.474 (8th Cir. 1993). in which a Canadian Barrister appeared pro hac before the Eighth Circuit Court of Appeals to file a brief and present oral argument on behalf of various members of the Canadian Parliament as amici curiae.
8. It is ironic that the opposition filed by the District Attorney of the city which was the capital of the United States at the time of the American Revolution should show such a lack of knowledge of the history of this country and its legal system. The British common law is the foundation stone of the American legal system. Through the period of the Civil War, American attorneys were required to be well-versed in British precedents because our courts had not yet. (See, e.g., Maharaj v Florida, 25 Fla. I. Weekly S 1097, 778 So. 2d 944. 2000 Fla. LEXJS 2325 (Supreme Court of Florida), in which British barristers appeared pro hac as counsel for the House of Lords, House of Commons, and Members of the European Union, as amici curiae, established an adequate body of law for citation. Numerous concepts of American law derive from the British common law and require research by legal scholars into their historical origins for their proper understanding and elucidation. The Commonwealth Respondents' xenophobic opposition to a British barrister appearing before the District Court actually refutes itself given the fact that the tradition of pro hac vice admission derives from the British common law. How then can a British barrister, by definition an expert on British common law, be denied admission pro hac by an American court?
9. The Commonwealth Respondents' opposition to the pro hac admission of Barrister Nick Brown is based on their unfounded assertion that attorneys from foreign nations may not be admitted to practice pro hac or that there is something somehow inappropriate or untoward in admitting them. This assertion has been shown to be entirely unsupported and, indeed, contradicted by the applicable legal authorities and precedent.
B. BARRISTER NICK BROWN IS EMINENTLY QUALIFIED FOR ADMISSION PRO HAC TO THE BAR OF THE DISTRICT COURT.
10. Nick Brown, Esq., received a "first class" law degree from Cambridge University for having graduated in the top 5% of his class. If not the preeminent university in the world, Cambridge is certainly among the preeminent universities in the world. It has been the source of England's leading attorneys for many years.
11. As a barrister, Mr. Brown is an honored member of an elite society of specialized trial attorneys and appellate advocates. Mr. Brown has practiced for more than ten years from one of London's leading chambers, "4 New Square Lincoln's Inn," the rough equivalent of a top "AV--rated" law firm in a major American city. Mr. Brown practices both civil and criminal law and has tried hundreds of cases. See Cooper v. Hutchinson, 184 F.2d 31), 122 & n.6 (3rd Cir. 1950).
12. In the case of R. V. Kulasingham and Sivilingham, Nick Brown and his co-counsel took over the defense of two men convicted of three murders in London after their final appeal against the convictions had failed. Mr. Brown and co-counsel succeeded in re-opening the case on the basis of fresh evidence in less than three weeks. Two years later, they had the convictions quashed by the English Court of Appeal. In substance, the English Court of Appeal accepted that the original investigation by the police had been corrupt and that there was strong evidence to suggest that the main prosecution witness at the original trial was the person who had actually committed the murders for which they had been convicted.
13. Mr. Brown has also worked on other high-profile criminal cases in England in which police or prosecutorial misconduct was at issue and ultimately resulted in the convictions being overturned. As a highly-experienced trial attorney who also litigates professional negligence (legal malpractice) cases, Mr. Brown is particularly sensitive to issues of "effective representation" by counsel, such as those present in the case of Mr. Jamal.
14. Nick Brown is able to bring all of this experience to bear in this case and to work in tandem with his associate counsel, who have the requisite knowledge. experience and understanding of the relevant law. Nick Brown does not come cold to this law. The English and American legal systems share a common legal heritage. They have the same common law tradition. Many of the legal concepts which apply in this case are not new to him. Moreover, American jurisprudence is frequently cited in the English courts.
15. But effectively preparing and presenting almost any case, let alone a case of this nature demands a great deal more than simply a bare knowledge of the relevant law. Analysis of the evidence, decisions on strategy, assessments of the appropriate weight and emphasis which should be placed on individual points or issues, and consideration of how most persuasively to present the different elements of a client's case are all features of the task which an attorney performs for his client. These are all aspects of advocacy with which Mr. Brown is intimately experienced and which he can bring to bear as an integral member of Petitioner's legal team.
16. In this regard it should be noted that Nick Brown does not apply to appear pro hac vice on behalf of the Petitioner on his own. Rather, he applies to appear pro hac vice as associate counsel and as part of the Petitioner's current legal defense team. Thus, his particular experience and expertise would be exercised as one member of a four-attorney legal team whose other three members are all experienced American lawyers.
17. In the Commonwealth's original Answer to Motion for Admission of Attorneys Pro Hac Vice, the Commonwealth did not take issue with the similar motions which have been submitted in respect of attorneys, Marlene Kamish and Eliot Lee Grossman. The Commonwealth has therefore implicitly accepted that attorneys Kamish and Grossman possess the necessary knowledge. experience and understanding of the law which is relevant to these proceedings. J. Michael Farrell, Petitioner's local counsel, is a highly experienced Pennsylvania attorney who practices civil and criminal law in both state and federal court and has significant federal habeas experience.
18. Finally, and perhaps most significantly, this Honorable Court has already impliedly found that Barrister Nick Brown is qualified for admission pro hac, having noted in its August 7, 2000 decision denying leave to file, as "unnecessary and unhelpful," the amicus brief submitted by Mr. Brown on behalf of various members of the British Parliament, and the briefs submitted by counsel for the other three amici, that: "I do not question the professional skill possessed by counsel for all amici groups. Nothing in this memorandum or the attached order is intended to reflect on the merits of the proposed amici filings ..
II. PETITIONER'S RIGHT TO REPRESENTATION BY RETAINED COUNSEL OF HIS CHOICE IN THESE HABEAS PROCEEDINGS WOULD BE VIOLATED BY DENIAL OF BARRISTER NICK BROWN'S ADMISSION PRO HAC TO THE BAR OF THIS COURT.
19. In granting Petitioner Jamal's pro se motion for withdrawal of counsel, the District Court expressly ruled that since "[p]etitioner has retained counsel in this matter. . . he may change counsel at any time for whatever reason, subject to the court's approval." (Order of April 6, 2001.) In making that ruling, the District Court made reference to McFarland v Scott, 512 U.S. 849 (1994) for the Supreme Court's gloss upon an indigent capital defendant's mandatory right to qualified legal counsel. In McFarland the Supreme Court stresses the importance of quality legal representation in capital habeas proceedings: "Quality legal representation is necessary in capital habeas corpus proceedings ... [which have] a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty." 512 U.S. at 859.
20. It is precisely because Petitioner Jamal is concerned to have the 'quality legal representation" that British barrister Nick Brown can provide him as a member of Petitioner's legal team that Petitioner has chosen to retain him. And, as this Honorable Court has explicitly recognized in granting Petitioner's pro se motion for withdrawal of counsel, when a defendant is financially able.
In their opposition to Mr. Brown's admission pro hac, the Commonwealth Respondents have misrepresented the arguments in the amicus brief he filed on behalf of 22 Members of the British Parliament. While certainly informed by the reasoning and jurisprudence which has underpinned the relatively recent restatement of the right of pro se defendants to lay assistance in England and Wales, the arguments Nick Brovm presented were put forward on the basis of Petitioner's rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. These arguments were extensively supported by citation to decisions of the United States Supreme Court and the Circuit Courts of Appeal. Nick Brown was able to prepare this amicus brief within a few weeks of first being retained, showing a prodigious ability to analyze and brief American law.
(lost text) ...to retain counsel, the choice of counsel rests in his hands, not in the hands of the State. United States v Richardson, 894 F.2d 492, 496 (1st Cir. 1990); Wilson v. Mintzes, 761 F.2d 275. 280 (6th Cir. 1985). Of United States v. Nichols, 841 F.2d 145 (l0thCir. 1988)("an indigent defendant does not have a right to choose appointed counsel.").
21. The right of Petitioner Jamal to retain counsel of his choice therefore represents 'a right of constitutional dimension,' United States v. Cunningham, 672 F.2d 1064. 1070 (2dCir. 1982) (quoting United States v. Wisniewski, 478 F.2d 274, 285 (2d Cir. 1973)), the denial of which may rise to the level of a constitutional violation, Bin v. Montgomery, 725 F.2d 587, 592 (11th Cir.) (en banc), cert. denied, 469 U.S. 874 (1984); Wils supra, 761 F.2d at 278-279.
22. In giving the opinion of the court in United States v. Laura, 607 F.2d. 52, 56 (3rd Cir. 1979), Circuit Judge Higginbotham explained:
"Embodied within the Sixth Amendment is the conviction that a defendant has the right to decide within limits, the type of defense he wishes to mount. See Faretta v. California, supra; Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1981. 32 L.Ed.2.d 358 (1972). It is from this principle and belief that the defendant's right to select a particular individual to serve as his attorney is derived. For the most important decision a defendant makes in shaping his defense is his selection of an attorney."
23. For, as Circuit Judge Higginbotham went on to say:
"We would reject reality if we were to suggest that lawyers are a homogeneous group. Attorneys are not (lost text), as are eggs, apples and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues. These differences, all withih the range of effective and competent advocacy, may be important in the development of the defense. It is generally the defendant's right to make a choice from the available counsel in the development of his defense. Given this reality, a defendant's decision to select a particular attorney becomes critical to the type of defense which he will make and thus falls within the ambit of the Sixth Amendment." Id.
24. In the landmark case of Powell v. Alabama, 287 U.S. 45, 53 (1932). the Supreme Court held: "It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." The right to retain counsel of choice stems from a defendant's right to decide what kind of defense he wishes to present. Nichols, supra, 841 F.2d at 1502. "Attorneys are not fungible;" often "the most important decision a defendant makes in shaping his defense is his selection of an attorney." Laura, supra, 607 F.2d at 56.
25. While a federal habeas petitioner may not have a constitutional right to effective representation by counsel, as the Sixth Amendment guarantees at trial and on appeal, it should be indisputable that, particularly in a death penalty case, a habeas petitioner has a constitutional right to be represented by retained counsel of his or her choice, at no cost to the government. Certainly, it would violate a habeas petitioner's Fifth and Eighth Amendment rights if they were denied the right to be represented by an attorney retained by them and, instead, forced to represent themself. Congress has recognized the importance of legal representation in death penalty habeas cases by requiring appointment of counsel for indigent petitioners. Thus, Sixth Amendment jurisprudence on the right to representation by counsel of one's choice, at no cost to the government, should inform the District Court's exercise of its discretion over the admission of attorneys pro hac in habeas proceedings in death penalty cases.
26. If Petitioner Jamal is denied his right to representation by counsel of his choice, i.e. Barrister Nick Brown, the fact that he would still be represented by three other attorneys of his choice is immaterial (the Commonwealth is, of course, represented by four attorneys). For, as Circuit Judge Higginbotham stated in United States v. Laura, supra, 607 F.2d at 58:
"Nor do we consider it decisive that after the dismissal of her local counsel Laura continued to have the services of Castelerio. By the time of her hearing, she had a defense team composed of two attorneys who may have served distinct and important functions on her behalf. As she wished to retain both attorneys we can only presume that she felt that she needed both attorneys. That choice is hers to make and not the court's, unless some appropriate justification for the dismissal is provided.
"Moreover, as long as Rothstein performed a defense function, we do not believe that the defendant should be faced with the burden of proving the importance of his assistance. Therefore, Laura need not show that the dismissal was prejudicial. The right to counsel is among those "constitutional rights (which are) so basic to a fair trial that their infraction can never be treated as a harmless error." Chapman v. California, 386 U.S. 18, 23 and n.8, 8'7 S.Ct. 824, 828, 17 L.Ed.2d. 705 (1967)."
27. As Circuit Judge Higginbotham emphasised, as a matter of reality, different members of any legal team bring different skills to bear and fulfill different functions. Petitioner Jamal and Nick Brown's co-counsel recognise this and that is why they want him to be a member of the Petitioner's legal team. For a very practical reason, due regard should be paid to their wishes and their assessment that Nick Brown's "intrinsic professional competence" will be of benefit to them in how they present the Petitioners case.
III. RESPONDENTS LACK STANDING TO CHALLENGE PRO HAC ADMISSION OF BARRISTER BROWN OR TO OTHERWISE INTERCEDE IN PETITIONERS CHOICE OF COUNSEL TO REPRESENT HIM IN THESE PROCEEDINGS.
28. It is questionable at best whether the Commonwealth Respondents or their counsel from the District Attorneys' office have standing to challenge the motion for pro hac admission of Petitioner's counsel or to interfere thereby with Petitioner's right to be represented by retained counsel of his choice, at no cost to the government. Throughout the history of this case the Commonwealth of Pennsylvania and its counsel have defended the ineffective representation afforded him at trial and on appeal.
29. It should be apparent that the real concern of the Commonwealth Respondents and their counsel is not that Barrister Brown is unqualified, but precisely the contrary, that he is a skillful and able advocate who will provide Petitioner with the exemplary representation for which British barristers are renowned. And that is precisely why Petitioner's motion for admission pro hac of Nick Brown, Esq., should be granted.
Dated: June 4. 2001
Respectfully submitted,
MUMIA ABU-JAMAL
SCI Greene, No. AM8335
175 Progress Drive
Waynesburg, PA 15370-8090
Petitioner
MARLENE KAMISH
Attorney-at-Law
2927 West Liberty Avenue #193
Pittsburgh, PA 15216-2525
(412) 412-264-6686
ELIOT LEE GROSSMAN
LAW OFFICE OF ELIOT LEE GROSSMAN
La Rotunda Building
248 East Main Street, Suite 100
Alhambra, CA 91801
(626) 943-1945
J. MICHAEL FARRELL
Attorney-at-Law
718 Arch Street, Suite 402 South
Philadelphia, PA 19106
(215) 925-4099
MARLENE KAMISH
Attorneys for Petitioner
Respectfully requesting admission Pro Hac Vice
NICK BROWN
Barrister-at-Law
4 New Square
Lincoln's Inn
London WC2A 3RJ
United Kingdom
(0207) 822-2000
[posted 6/9/01]
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