2002 Clemency Application

TO:            GOVERNOR DON SUNDQUIST
RE:             DEATH ROW INMATE ABU-ALI ABDUR’RAHMAN
                    (formerly James Lee Jones)
DATE:        FEBRUARY 14, 2002

APPLICATION FOR CLEMENCY FOR DEATH ROW INMATE
ABU-ALI ABDUR’RAHMAN

        This is a petition for clemency for Abu-Ali Abdur’Rahman (formerly James Lee Jones), who was sentenced to die by the state of Tennessee in 1987 for the murder of Patrick Daniels, a Nashville drug dealer.  Mr. Abdur’Rahman is scheduled to be executed on April 10, 2002.  Mr. Abdur’Rahman respectfully requests the Governor to commute his death sentence to a sentence for life.

        The truth about Mr. Abdur’Rahman has never been considered by any jury member or judge who has condemned him to death - none of them knows the real person.  The picture presented at his trial was a false portrayal of Mr. Abdur’Rahman.  All of us who know Mr. Abdur’Rahman support this clemency appeal.  Anyone who comes to know him on a personal level will be adamantly opposed to his execution.

        This petition is filed on behalf of those people who do know Mr. Abdur’Rahman - his lawyers, family, friends, and spiritual leaders-all of whom have come to love and respect this remarkable man.  This petition is also filed on behalf of many other Tennesseans, including religious leaders, journalists, legislators, and other citizens of good standing who have never met Mr. Abdur’Rahman but who have been moved to action by his unique story and by the continuing value of his life in our community.

        Executive clemency is the only remedy available to the Governor, the executive branch of our government, to grant the justice denied by systemic flaws in the judicial process.  In order to consider clemency, the Governor must have a satisfactory answer to one of these crucial questions: is there a compelling need to override the judicial process; or, does the petitioner have extraordinary redemptive qualities even on death row?  In Mr. Abdur’Rahman’s case, the answer to both of these questions is yes.

        In the first place, compelling reasons exist for overriding the judicial process in this case.  The machinery of the legal process broke down even before Mr. Abdur’Rahman’s trial, and legal technicalities are now propelling him toward an unjust execution.  He was not given a fair trial, and his full story has never been heard or considered by any court.  This is undisputed.  The prosecution has been unable to rebut any of the evidence uncovered after his conviction, and now relies on procedural technicalities to keep that evidence out of the courtroom.

        Second, since his arrest in Tennessee in 1986, Mr. Abdur’Rahman has maintained an unblemished, incident free record in prison.  In fact, his record is replete with one instance after another in which he has affirmatively built his reputation as a positive influence and peacemaker on death row and even in the free world.  Because of Mr. Abdur’Rahman’s positive leadership, the prison itself has been an enriched and safer place for both inmates and administrators.  In his isolation, he has looked to his religion for a source of peace, comfort and strength; and he has persistently followed a path of personal discipline in pursuing his spiritual and intellectual growth.

        Moreover, despite the constraints of maximum security incarceration, Mr. Abdur’Rahman’s remarkable acts of good citizenship extend beyond the prison walls.  Throughout his sixteen years of incarceration in Tennessee, he has consistently and creatively sought ways to ensure that children, and especially black children, grow up in safe homes.  Through his writing, his encounters with people who come to visit him, and his participation on the Fisk radio station, WFSK, Mr. Abdur'Rahman's contributions stretch far beyond Riverbend.

        The process that condemned Mr. Abdur’Rahman to death was indelibly flawed by defense attorney incompetence and prosecutorial deceit.  This petition urges that clemency is the only remaining vehicle to correct those flaws.  Further, Mr. Abdur’Rahman’s life has had and continues to have great value to many Tennesseans.  A grant of clemency means his voice and his contributions will not be cut short in the name of the State.

I.  CLEMENCY CONSIDERATIONS


        Executive clemency has an honorable history in Tennessee, reflecting the public’s longstanding interest in ensuring reliability in the death penalty process and in allowing for mercy in appropriate cases such as Mr. Abdur’Rahman’s.  Early in our history, after Governor Newton Cannon called for abolition of the death penalty in Tennessee in 1837, the legislature first authorized a form of executive clemency.  1837 Tenn.Pub.Acts, ch.29.  Five years later the legislature vested the governor with the power to commute a death sentence to life imprisonment.  1842 Tenn.Pub.Acts, ch. 55.  This statute has remained in effect continuously since then.  See T.C.A. § 40-27-101.  Past governors have exercised the clemency power to commute death sentences to life sentences.  Governor Frank Clement, who actually visited each prisoner whose petition he considered, commuted death sentences in five (5) cases.

        Tennessee is not unique.  Clemency is universally regarded as an essential part of the criminal justice system, especially in capital cases.  A recent study reveals that since 1976, throughout the country 48 death row inmates have been granted clemency for humanitarian reasons.  Humanitarian reasons include doubts about the defendant’s guilt, questions about the defendant’s mental capacity, and rehabilitation of the defendant.  All of these humanitarian reasons for clemency pervade Mr. Abdur’Rahman’s case.

        Three issues arise in the clemency process.  The first is the issue of guilt and innocence.  Forensic evidence that was hidden from the jury in this case raises more than a reasonable doubt about whether Mr. Abdur’Rahman was the assailant who killed Patrick Daniels.  This evidence must be considered in the clemency process.

        But clemency involves much more than the question of guilt or innocence.  It also involves a second issue: an evaluation of the integrity of the judicial processes that led to the result in this case.  Where judicial proceedings have yielded unreliable results, as in Mr. Abdur’Rahman’s case, executive clemency provides a balance independent of the technicalities of legal process.  There is no dispute that Mr. Abdur’Rahman was denied a fair trial because of the virtual non-performance of his defense lawyer.  Every court that has looked at this case, state and federal, has found that Mr. Abdur’Rahman’s trial counsel’s performance fell well below the minimum constitutional standard of care.  A total of four (4) federal court judges have issued opinions about Mr. Abdur’Rahman’s case.  Even though no court (and therefore no judge) has reviewed all of Mr. Abdur’Rahman’s facts and claims relating to prosecutorial misconduct and ineffective assistance of counsel, two of the four federal court judges have stated in strong terms that, based on the claims they did review, because Mr. Abdur’Rahman’s trial was unfair because of the failures of defense counsel, his death sentence should be set aside.  Judge Todd Campbell of the federal District Court for the Middle District of Tennessee is the only judge who actually heard all of the live witnesses presented in this case.  After hearing from twenty (20) live witnesses in a two week evidentiary hearing, and after reviewing more than 150 exhibits of evidence including deposition testimony from seven (7) other witnesses, Judge Campbell concluded: “The overwhelming nature of the evidence presented to this Court, a significant portion of which was not presented to the jury or the state courts, and the almost complete failure to present a defense at [Mr. Abdur’Rahman’s] sentencing hearing, compels the Court’s conclusion that [Mr. Abdur’Rahman’s] death sentence cannot stand.”  999 F.Supp. at 1101-2 (emphasis added).  Judge R. Guy Cole, Jr., of the United States Court of Appeals for the Sixth Circuit said, “Given the total lack of mitigating evidence presented at Abdur’Rahman’s sentencing hearing, counsel’s conduct so undermined the proper functioning of the adversarial process that the sentencing hearing cannot be relied on as having produced a just result.”  226 F.3d at 724.

        The jurors who decided Mr. Abdur’Rahman’s fate at his trial now agree.  Eight of the jurors have signed affidavits stating that they should have heard evidence that was never presented at the trial and, if they had heard the evidence, in all probability their decision would have been different: they would have voted for life instead of death.  See Appendix A .  The jury foreman, Mr. Everett C. Stone, III, summed up the views of these jurors when he wrote:  “Having reviewed various evidence in relation to Mr. Abu-Ali, aka James Jones, it is my belief and opinion that this evidence would have made a significant difference in the sentencing phase of the trial.  Further, given the nature of the evidence I would further offer for consideration that the death penalty be overturned in this case.”  Under Tennessee law, if just one juror had voted for life at Mr. Abdur’Rahman’s trial, he would not have received a death sentence.

        Third, and perhaps most importantly, clemency must involve questions concerning the value of life and the presence of redemptive qualities.  In the end, clemency presents the question of mercy.  Both the prison administration (the warden and the correctional officers) and fellow inmates have conferred upon Mr. Abdur’Rahman the highest positions of trust within the prison system.  Many correctional officers and other prison officials attest to Mr. Abdur’Rahman’s stabilizing and peaceful influence on death row.  Mr. Abdur’Rahman’s unblemished record on death row, together with his remarkable accomplishments and dedication to spiritual and intellectual growth, demonstrate beyond any doubt that his is a life of conscientious citizenship, a redeemed life with value that should be preserved.

        Many respected organizations in the community have publicly stated their belief that Mr. Abdur’Rahman’s death sentence should be set aside.  The leading editorial in The Tennessean on January 19, 2002, titled “Failure of counsel means failure of justice,” advocated that Mr. Abdur’Rahman’s death sentence should be commuted.  The editorial concluded:

            But the questions raised by judges at every level in this case echo back to the issues of justice.  Abdur’Rahman has been convicted of a horrible crime.  He should pay with his freedom.  But the injustice will only be compounded if Abdur’Rahman is subjected to the ultimate punishment due to the ‘complete failure’ of his trial attorneys.  [Governor] Sundquist should prevent that atrocity.

    Other organizations that have called for the setting aside of Mr. Abdur’Rahman’s death sentence include:

        * Tennessee Black Caucus of State Legislators.
        * Covenant Association, an interracial group of ministers, priests and rabbis.
        * Interdenominational Ministerial Fellowship, an interdenominational group of ministers and priests.
        * National Mental Health Association.
        * National Alliance for the Mentally Ill of Tennessee.
        * National Association of Black Social Workers.
        * National Association of Social Workers.
        * National Association of Social Workers, Tennessee Chapter.
        * Tennessee Voices for Children, Inc.
        * Tennessee Black Caucus of State Legislators.

        These organizations do not ordinarily concern themselves with death penalty cases.  However, they have taken a stand here because of the compelling circumstances surrounding Mr. Abdur’Rahman’s case.

        Mr. Abdur’Rahman is scheduled to become the first African-American to be executed in Tennessee since 1960.  From 1909 through the present, there have been a total of 135 executions in Tennessee, 89 of them African-American men, or more than 65% of the total.  Of the 25 executions that arose out of Davidson County, 20 were of African-Americans.  In other words, 80% of the executions that have arisen out of Davidson County have been of African-Americans.  Execution of Mr. Abdur’Rahman will further skew the racial disparities in the imposition of the death penalty in Tennessee.

        In light of all of these factors, we urge the Governor to carefully review the entire record of this case in the process of making a clemency decision.

    II.  MR. ABDUR’RAHMAN’S LIFE


        We urge the Governor to read the social history of Mr. Abdur’Rahman’s life through the offense in this case, attached to this application as Appendix B.
        A.  Childhood Abuse and Its Effects.

        Mr. Abdur’Rahman’s life was forged in the crucible of violence consisting of the most horrendous sexual and physical abuse and deprivation imaginable.  Judge Todd Campbell of the Middle District of Tennessee, the only judge to hear evidence about Mr. Abdur’Rahman’s background, was moved to describe Mr. Abdur’Rahman’s childhood development and how his lawyer’s failure to present that evidence at trial affected Mr. Abdur’Rahmans’ fate:

            In this case, there was an abundance of mitigation evidence available that was never used at trial.  For example, trial counsels’ reasonable investigation would have produced information about Petitioner’s childhood abuse by his father, a military policeman.  Trial counsel could have introduced evidence about this abuse through descriptions contained in some of Petitioner’s mental health records, through the testimony of Petitioner’s step-sister, Petitioner’s wife, Petitioner’s now-deceased brother, and Petitioner’s former fiancé.

            During the hearing in this Court, Nancy Lancaster, Petitioner’s half-sister, testified about the abuse and difficulties Petitioner experienced during his childhood. Although some of the information Ms. Lancaster related was based on statements made by other family members, the Court was very impressed with Ms. Lancaster’s credibility and demeanor.

            Ms. Lancaster testified that she and the Petitioner share a common mother, who abandoned Ms. Lancaster and her two brothers when she was an infant.  Petitioner’s mother put her three children in a taxi, drove them to the woods, and left them.  Petitioner’s mother later married Petitioner’s father, James Jones, Sr.  Three more children were born of that marriage - James (Petitioner), Mark and Sylvia.

            Petitioner’s statements to mental health providers provide a vivid description of the abuse Petitioner suffered at the hands of his father.  Petitioner received regular beatings with a leather strap from his father.  Petitioner’s father made him take off his clothes, placed him hog-tied in a locked closet, and tethered him to a hook with a piece of leather tied around the head of his penis.  Petitioner’s father struck Petitioner’s penis with a baseball bat.  To punish him for smoking, Petitioner’s father required him to eat a pack of cigarettes, and when he vomited, was made to eat the vomit.  None of this extraordinary abuse, which constitutes relevant mitigating evidence, was heard by the jury.  This was a grave omission by defense counsel.

            This, of course, is not to suggest that people who are abused as children should get away with murder.  People with bad childhoods can be sentenced to death. But, the Constitution requires that these significant facts should have been presented to the jury at sentencing by counsel.

            Petitioner’s school and mental health records indicate that Petitioner’s family lived in several different locations, and that Petitioner had undergone mental evaluations several times during his childhood.  Petitioner ran away from home several times, and eventually, at 15, left home for good.

            A reasonable investigation would have produced information about Petitioner’s mental history.  A review of the MTMHI records, which trial counsel had in their possession before trial, would have indicated that Petitioner had had prior mental evaluations, that he had served in the army, and had spent several years in prison.  Petitioner’s school, military and prison records reveal that Petitioner had been diagnosed in 1964 as having “paranoid personality” and, in 1971, as having a “passive aggressive personality, aggressive type.”  These records also describe the Petitioner as:  “very sick” and in need of immediate commitment; “in serious need of therapy;” and “highly disturbed.”  The records also reflect numerous suicide attempts.  None of this evidence was offered to the jury.  This was significant error by counsel.

            Petitioner also had a family history of serious mental conditions.  Petitioner’s sister, Sylvia, attempted suicide on multiple occasions and was institutionalized several times for mental health problems.  Petitioner’s brother, Mark, committed suicide while this case was pending in this Court.

            Had counsel conducted an in-depth interview before calling Susi Bynum to testify at sentencing, they would have gathered more evidence regarding Petitioner’s mental health.  They would have learned about Petitioner’s belief that he and his wife would have the next Messiah; Petitioner’s having carried on conversations with nonexistent people and animals; and his having banged his head against the wall on various occasions.  Again, none of this evidence was made known to the jury.  Ms. Bynum testified that she even told Mr. Barrett that he should have a psychiatrist examine the Petitioner before the trial.  These were serious deficiencies by defense counsel.

            Had trial counsel heeded Ms. Bynum’s suggestion and hired a mental health professional to evaluate the Petitioner, or had they interviewed MTMHI’s Dr. Craddock, they could have presented evidence that Petitioner had, at the very least, exhibited symptoms of a Borderline Personality Disorder, including extreme emotional swings, identity disturbance, and self-mutilating behavior.  A mental health professional, like Dr. McCoy, could have offered testimony about Petitioner’s background and mental history, and could have offered an explanation placing in context the negative aspects of Petitioner’s past.  By describing Petitioner’s history of earnestly seeking a religious faith with which to align himself, Dr. McCoy’s testimony would have supported the notion that Petitioner had been strongly influenced by the SEGM.  None of this was put into evidence before the jury.  The failure of counsel to do so was a serious error.

999 F.Supp. at 1073-1101.

        After reviewing the evidence presented at the federal habeas corpus proceeding, Sixth Circuit Court of Appeals Judge R. Guy Cole was moved to write about Mr. Abdur’Rahman’s childhood background:

            Unbeknownst to the jury determining Abdur’Rahman’s fate, mitigating evidence existed and was available for presentation at his sentencing hearing.  If counsel had performed adequately, the jury could have learned that Abdur’Rahman has a history of traumatic abuse as a child, that he had a long history of mental health problems and treatments, and, finally, that Abdur’Rahman had previously been a productive member of society.

            The abuse suffered as a child by Abdur’Rahman, mostly at the hands of his father, a military policeman, was inhumane and shocking.  Dr. Raymond Winbush, who testified before the district court, stated that Abdur’Rahman’s “is singularly the worst case of abuse I have come across in 25 years being an academic psychologist…I can’t even in my memory remember anything that remotely comes close to some of the things I read.”

            This abuse was attested to by the petitioner, the petitioner’s half-sister, who was not contacted by counsel but was available to testify, and the petitioner’s brother, Mark Jones, who likewise was not contacted by counsel but stated in an affidavit that he would have been willing to testify at trial.  This abuse, while not a justification for petitioner’s criminal conduct, is relevant, mitigating evidence that should have been presented to the jury.

226 F.3d at 721-2.

        It is not surprising that the abuse Mr. Abdur’Rahman suffered at the hands of his parents, combined with his mental illnesses, spawned a rash of deviant behaviors during his adolescence.  Despite recommendations from teachers and counselors that the boy needed psychiatric help, his parents refused to seek treatment.  Mr. Abdur’Rahman’s extensively documented history contains the following reports of violent behavior:

       1. At 14, school records reflect that he was involved in school yard fights and in need of psychiatric help.
       2. At 15, school records report that he was involved in numerous fights and arguments at school.
       3. Again at 15, after fleeing his parents’ abuse and while living on the streets of Philadelphia, he was charged with assault and battery on a Caucasian taxi driver; racial epithets were reportedly involved.
       4. In the Army at 17, he was disciplined for assaulting a private in a fight allegedly involving racial matters.
       5. In 1969, at age 18, he was arrested for assault with a dangerous weapon while on a military base, which led to his conviction under the Federal Youth Corrections Act, a conviction that was (and is) expungeable from his record.

        During this same period of Mr. Abdur’Rahman’s adolescence, a number of people noted that he desperately needed help.  A school psychologist wrote that James (his childhood name) “is very sick and needs immediate commitment to institution.”  A hospital team of psychologists who evaluated James as an inpatient over a period of time concluded that he suffered from “personality pattern disturbance and paranoid personality.”  A staff report from his junior high school described James as “a very disturbed boy” in need of psychiatric treatment.  On at least two separate occasions, at the ages of 15 and 16, James was placed in mental hospitals for his own protection because of suicide attempts.  It was reported that he suffered from auditory hallucinations and nightmares.  Reports from these institutions also mention, however, that his father refused to allow treatment for James or the family, in complete disregard of the urgent recommendations from school and mental health authorities.

        B.  Continued Abuse in Prison.

        The 1969 arrest listed above led to Mr. Abdur’Rahman’s imprisonment at the Federal Reformatory in Petersburg, Virginia, a youth facility.  Pursuant to the dictates of the Federal Youth Corrections Act, under which he was convicted, and the court order that committed him to the Reformatory, he was to receive “treatment and supervision.”  Contrary to the Act and the court order, however, Mr. Abdur’Rahman received no treatment or supervision.

        At the Federal Reformatory, Mr. Abdur’Rahman soon became the victim of repeated homosexual rape.  Contemporaneous prison records describe some of the incidents of violent sexual abuse reported to prison authorities.  For example, one prison report disclosed:

            On Sunday, February 27 [1972] there were reports of tension on the compound due to an assault on an inmate in E1W on Saturday evening.  The victim was reported to be Jones [Mr. Abdur’Rahman, before he changed his name].  Information received on Sunday indicated the incident was due to sex pressure. …Smith invited Jones into his room for sex play.  Jones agreed and was followed into the room by a Williams.  The victim apparently refused to accommodate Williams and was beaten by him, Williams, and Smith.

    Mr. Elmer A. Bishop, a correctional officer who worked at the Petersburg Federal Reformatory at the time, testified that Mr. Abdur’Rahman, because of his age and small stature, was the target of Williams, a sexual predator who was called Scarface.

        Prison records from that time reflect that as early as January, 1971, when he was 20 years old, Mr. Abdur’Rahman suffered episodes of “hysterical blindness” and made a number of suicide attempts.  As explained by expert psychiatric testimony, hysterical blindness is a form of blackout induced by stress which results in a dissociative or psychotic experience.  After such an episode, the victim has no memory of what happened.

        The records also indicate that Mr. Abdur’Rahman approached prison authorities seeking protection, repeatedly asking to be placed in segregation in order to remove himself from homosexual attacks.  The prison, however, failed to provide protection.  The situation continued to worsen, and in a desperate attempt to protect himself from attack when the prison would not, Mr. Abdur’Rahman eventually killed an inmate named Michael Stein on April 1, 1972.  After investigating the incident, the F.B.I. reached the following conclusion:

        The FBI investigation indicates that Stein had circulated false rumors of abnormal homosexual activity between Jones [Mr. Abdur’Rahman] and Stein. Jones did not approve of the rumors, and on two prior occasions had faced Stein in an effort to resolve their differences.  On the evening of the incident, Jones approached Stein in Stein’s room.  Stein was seated but rose from his chair, pushed Jones, and then reseated himself.  Jones came back at Stein and stabbed him in the chest with a sharpened stainless steel table knife.

        In his one day trial for Stein’s death in 1972, psychiatric testimony supported an insanity defense.  Dr. Masri, who diagnosed Mr. Abdur’Rahman with “schizoid personality” and “borderline personality with periodic decompensation with loss of control,” concluded that Mr. Abdur’Rahman was insane at the time of his assault on Stein:  “I would have to say he panicked; and when he panicked, he had no control.”  The opinion of the prosecution’s psychiatrist, Dr. Eardley, was essentially consistent with Dr. Masri’s.  Dr. Eardley testified:

        A.    He [the defendant] indicated to me that he would try to work out something with
                this Stein, and did go down there to talk to him in his cell.  And Stein sort of put
                him off and laughed at him.  And I think Jones just lost his temper and got very
                angry at the situation.  I think we all would have been angry in situations that
                for momentarily we don’t realize what we are doing.

        Q.    Well, then, at the moment that this thing happened, he didn’t realize what he was
                doing; is that what you are saying?

        A.    Well, I think you know a temporary period that for a fleeting second at times we
                forget.  That is conceivable.
                You are in such a state.  You are so angry, you don’t think at that moment.

        Q.    Not that that would be considered temporary insanity, would it not?

        A.    Well, I don’t know.

        Although the jury ultimately rejected the insanity defense and returned a verdict of second degree murder for Stein’s death, the trial court entered a final judgment recommending “commitment to institution where defendant may receive psychiatric treatment.”

        Instead, Mr. Abdur’Rahman was placed in the federal penitentiary system.  He never received psychiatric treatment as recommended by his trial court, and was only sporadically medicated with Thorazine and other antipsychotic and psychotropic drugs.  He continued to be the victim of homosexual rape at various placements throughout the federal prison system where he had been given the label of “punk,” the most demeaning label in prison, branding him as a target of homosexual abuse.  According to prison records, in February, 1973, he experienced another episode of hysterical blindness while oral sex was being forced on him by male inmates.  Prison records also report that Mr. Abdur’Rahman attempted suicide and other acts of self-mutilation and was placed on suicide watch intermittently over the next 10 years.  He was moved from one penitentiary to another because of his repeated sexual victimization, but has committed no further violent acts in prison.

        Judge Todd Campbell explained the significance of omitting this information from Mr. Abdur’Rahman’s capital murder trial in Tennessee:

            Had defense counsel learned more about the 1972 murder conviction, they could have presented evidence to the jury that the killing occurred when Petitioner approached the victim, Michael Stein, in his cell to confront him about spreading rumors that Petitioner had engaged in homosexual conduct, and that Petitioner stabbed Stein during that confrontation.  The prison murder was not about drugs and gangs as represented by the prosecution to defense counsel.

            More importantly, Dr. Masri testified at the 1972 murder trial that Petitioner had a “homosexual panic” and lost control when he killed Stein.  As noted above, Dr. Masri also diagnosed the Petitioner as having a Borderline Personality Disorder and Schizoid Personality.  Although this information does not provide a justification for the murder, it does provide the jury with some information upon which to evaluate it.  Without some information tending to mitigate this prior murder, there was nothing to alter the likely mindset of the jury that because Petitioner had killed someone before, he was not deserving of any leniency.  The jury heard none of this evidence.  Again, defense counsel made a substantial mistake.

999 F.Supp. at 1099-1100.

        C.  Mental Illnesses.

        There is no question that the mental illnesses that surfaced during Mr. Abdur’Rahman’s adolescence persisted through adulthood, exacerbated even further by continuing sexual assaults in prison.  Subsequent to the 1987 capital trial in this case, a total of six (6) mental health experts -- three psychiatrists and three psychologists -- have evaluated Mr. Abdur’Rahman.  Every one of these mental health professionals has diagnosed Mr. Abdur’Rahman with Post-Traumatic Stress Disorder and/or Borderline Personality Disorder, diagnoses that are consistent with evaluations he previously received at various points in his life.  These mental health professionals are: Dr. Robert Sadoff, a nationally recognized forensic and clinical psychiatrist; Dr. Robert Nurcombe, at the time a Nashville clinical and forensic psychiatrist; Dr. George W. Woods, a nationally recognized forensic and clinical psychiatrist from California; Dr. Raymond Winbush, an academic psychologist from Fisk University; Dr. Diana McCoy, a forensic psychologist from Knoxville; and Dr. Daniel Martell, a forensic psychologist from California retained by the Tennessee Attorney General in this case.  

        All of these professionals agreed that persons with Borderline Personality Disorder and/or Post-Traumatic Stress Disorder can experience psychotic or dissociative episodes under stress.  These professionals further concluded that, consistent with their diagnoses, Mr. Abdur’Rahman’s history of hysterical blindness, suicide attempts, and self-mutilation is symptomatic of these mental illnesses.  Nevertheless, prison records covering the 11 years Mr. Abdur’Rahman served for commission of the 1972 Stein offense reflect no further incidents of violence.  Following his release from prison, he was a responsible and productive citizen until February 17, 1986, at age 35, he became involved in the offense in this case which resulted in Patrick Daniels’ killing and the stabbing of Norma Norman.  For this offense, Mr. Abdur’Rahman was convicted of first degree capital murder.

        D.  Adult Life in the Free World.

        After his parole from federal custody in Chicago in December, 1983, Mr. Abdur’Rahman worked for the Star System Company cleaning offices and houses.  He worked there continuously until January, 1985, maintaining a perfect work record, and was considered by his boss, Richard Bretzlauf, to be the hardest working employee at the company.  Mr. Bretzlauf also considered Mr. Abdur’Rahman to be one of the most trustworthy employees at the company.  He willingly put Mr. Abdur’Rahman in charge of work crews, gave him responsibility for handling money, and placed him in other positions of trust.

        In Chicago, Mr. Abdur’Rahman became engaged to Sarah Roberts Walton, a Quaker and now an attorney in Maine.  He began participating in Quaker activities, spending long hours volunteering in a Quaker sponsored youth program in Cabrini Green, a large impoverished housing project in Chicago.  

        Judge Todd Campbell described Mr. Abdur’Rahman’s life during this period and again pointed out the significance this information might have had in his capital trial:

            Trial counsel could have presented testimony showing that, despite his mental health problems, Petitioner had functioned as a productive member of society during the year before he came to Tennessee.  If they had heeded Petitioner’s suggestion that they talk with Sarah Roberts Walton, Petitioner’s former fiancé, they could have learned that after Petitioner was released from prison in Chicago, in 1983, he was hard-working and giving.  Ms.Walton, now an attorney for the State of Maine, testified that when she knew the Petitioner in 1983, he held a steady job, attended college, and performed volunteer work with a Quaker youth group at Cabrini Green, a large, infamous public housing development in Chicago known for its poverty and violence.  Ms. Walton described the Petitioner as gentle, caring, and filled with dignity; a person with whom she shared a sincere Christian belief.  The jury heard nothing of the sort from any witness.  This was a very significant failure by defense counsel.

            The Court finds the testimony of Ms. Walton to be extremely credible.  The content of her testimony, as well as her demeanor, made her a compelling mitigation witness on behalf of Petitioner for purposes of sentencing.  Ms. Walton’s testimony, based on personal knowledge, added a humanizing dimension to the file history and character of the Petitioner, good and bad, that was absent from any prior proceeding in state court, and yet could have been presented to the jury, had trial counsel conducted a reasonable investigation.

999 F.Supp. at 1099.

        In early 1985, Mr. Abdur’Rahman found his brother Mark.  This was Mr. Abdur’Rahman’s first contact with any member of his family since he left home in 1967, at age 16, to escape his parents’ abuse.  Mark was in the Army stationed at Ft. Campbell.  Desperate for family connection, Mr. Abdur’Rahman left his job, apartment, and friends in Chicago to live with his brother.  Within weeks, however, he was told to leave the army base because he was not in the military, and he spent winter nights camping in the woods near Clarksville.  His parole officer arranged for his admission into a half-way house in Nashville, whereupon Mr. Abdur’Rahman began working and taking classes at the Nashville Urban League.  Eventually he found employment with Allen Boyd at the Nashville Baptist Publishing Board, a company owned by the Boyd family.  Allen Boyd became Mr. Abdur’Rahman’s personal mentor as well as his supervisor at work.  During this time Mr. Abdur’Rahman maintained a perfect work record, he married Susi Bynum, and by all accounts he lived a quiet life in the community.

        Nonetheless, Mr. Abdur’Rahman’s mental illnesses remained untreated.  The mental health professionals who have looked at this case explained that Mr. Abdur’Rahman always wanted to make something of his life, but his mental illnesses made him highly susceptible to the influences of others.  The MTMHI records from his pretrial evaluation described Mr. Abdur’Rahman as having an irrational “messianic” desire to aid deprived children and to rid the Black community of drug dealers, numbers runners, and prostitutes.

        For these reasons it is understandable that Mr. Abdur’Rahman was drawn to a Black consciousness religious organization known as the Southeastern Gospel Ministry (the “SGM”) when given the opportunity by his mentor Allen Boyd, who was the principal leader of the SGM.  Eventually, Allen Boyd invited Mr. Abdur’Rahman to join a small, secretive paramilitary arm of the SGM, the purpose of which was to use intimidation to rid the North Nashville African-American community of drug dealers and other negative elements.  Given the messianic nature of the SGM’s mission and the influence of Allen Boyd, Mr. Abdur’Rahman became a willing disciple to this cause.  Karen Miller, the wife of codefendant Devalle Miller, has explained that the SGM “brainwashed” Devalle Miller.  The SGM similarly brainwashed Mr. Abdur’Rahman.

        The months and weeks leading up to the date of the offense in this case became increasingly stressful for Mr. Abdur’Rahman.  Mr. Abdur’Rahman’s sexual dysfunction, probably due to the years of sexual abuse, was causing tension in his marriage.  His wife lost her job in January, 1987, causing financial concerns.  Mr. Abdur’Rahman became more deeply involved in the activities of the SGM, which caused him to lose sleep.  By early 1987, Mr. Abdur’Rahman was using marijuana and LSD to self-medicate his trauma-induced symptoms and to keep awake at work by day and for the long hours of SGM activities at night.  The mental health professionals who have reviewed the entire record in this case have explained that, in light of Mr. Abdur’Rahman’s mental illnesses, this combination of stresses and circumstances fractured his fragile and often delusional hold on reality.

III.  THE OFFENSE

        Mr. Abdur’Rahman was identified as the assailant in this case based solely on the uncorroborated testimony of the only eyewitness to the deadly assault, codefendant Miller.  In exchange for his testimony against Mr. Abdur’Rahman, Miller was offered a plea bargain from the prosecution under which Miller pled guilty to second degree murder.  While Mr. Abdur’Rahman received the death sentence, Miller received a term sentence and was released from parole approximately 10 years later.

        The activities leading up to the killing of Patrick Daniels on February 17, 1986, were set in motion under the influence and direction of Allen Boyd and the other members of the small paramilitary arm of the SGM.  Mr. Abdur’Rahman and Devalle Miller, who also belonged to the SGM, went to Patrick Daniels’ apartment with unloaded guns furnished by their SGM leaders Allen Boyd and William Beard.  As Devalle Miller has explained in sworn testimony at his own sentencing hearing in late 1987:

            “The organization that I’d gotten myself involved in [the SGM] was to help the community to rid the drug dealers, and things like that, you know, because it was a bad influence.  And I just got in over my head.”

            “Well, I knew that he [Mr. Abdur’Rahman] had went to prison.  But that he had, you know, came out and that he had kept himself together.  You know, he came out with the attitude of helping the community, preferably the black community.  And just wanting to do right.  So that really impressed me about him.  For a man who had went to prison and spent time, and come out with the attitude of, hey, you know, I’m going to be an asset to the community.  That impressed me.”

    More recently, in 1993, Miller gave the following sworn testimony:

        Q.    And do you recall telling us as to how you began to get involved in this
                organization and talking with Mr. Jones about the issues that the Southeast Gospel
                Ministry was discussing; that you had felt like here in Nashville you wanted to
                become involved in a cause or have something to believe in?

        A.    That was my motivation.

        Q.    And do you recall telling us that you went over there that night of the offense
                solely for the purpose of taking away drugs from the drug dealer?

        A.    Yes.

        Q.    And that going to Patrick Daniels’ house was in accordance with the plan to
                eliminate drugs from the dealers in the neighborhood?

    To which Miller answered in the affirmative.

        When Mr. Abdur’Rahman and Miller entered Daniels’ apartment, they were met by Daniels, Norma Norman, and her two children.  The children were put into a bedroom during the assault that ensued.  According to the plan, Miller was to bind up Daniels with duct tape, but Miller froze.   Mr. Abdur’Rahman took the duct tape and bound and blindfolded Daniels and Norman with the duct tape.  For some reason, the plan went terribly wrong and Daniels and Norman were each stabbed several times with a knife from Daniels’ kitchen.  Norman survived but could not identify her assailant.  Daniels died from six stab wounds to the heart and chest.  After leaving the apartment, Mr. Abdur’Rahman and Miller left the apartment and, according to Miller, immediately met with Boyd.

        Norman described both Mr. Abdur’Rahman and Miller up to the point when she was blindfolded.  She repeatedly said that Mr. Abdur’Rahman was wearing a long dark wool coat at the time.  Miller also described Mr. Abdur’Rahman as wearing the long dark wool coat during the entire evening.

        The police reports described the crime scene as bloody - there were pools of blood on the floor and blood splatter on the walls.  Crime scene photographs show extensive blood splattering on the walls.

        Two days later, police arrested Mr. Abdur’Rahman at work at the Nashville Baptist Publishing Board.  At the time of his arrest, according to police records and his wife, he was unable to recall the actual assaults on Daniels and Norman.  That same day Miller was fleeing the state with money furnished by Beard and the SGM.  The SGM supplied money to Miller’s wife and family until they eventually joined with Miller in his hometown in Pennsylvania.

        On the day of Mr. Abdur’Rahman’s arrest, police searched his apartment and seized the gun he carried with him to Daniels’ apartment along with his clothes and the long dark wool coat that he was wearing at the time of the offense.  The coat was sent to the T.B.I. crime lab where it was tested chemically for blood stains.  The T.B.I. crime lab issued a report stating that no blood stains were found on any of Mr. Abdur’Rahman’s clothes.  Interestingly, Miller’s clothes were never tested for blood stains.

        In an internal memo, the Assistant District Attorney who prosecuted this case pondered the significance of the lack of blood evidence:

            T.B.I. Lab Report was unable to find any blood staining on the long wool coat worn by Jones.  Photographs of the decedent’s house show blood spattering all over the kitchen.  Either the defendant removes his coat before he began to stab these people, the defendant had his coat cleaned, the defendant replaced the coat found by the police with another coat (which is not likely since he would have obviously gotten rid of the shotgun) or if the defendant did wear his coat the entire time he obviously was not present when the stabbing occurred.

        As Mr. Abdur’Rahman’s case was heading for trial, the prosecution eventually made arrangements for the capture and arrest of Miller in Pennsylvania.  As soon as Daniels arrived in Tennessee and before he was appointed counsel, the prosecution interviewed him about the offense.  Miller’s story changed considerably after that first interview.  During the week before Mr. Abdur’Rahman’s trial, the prosecution “woodshedded” Miller, conducting 5 interviews, on 5 consecutive days, averaging 3 hours per interview.  Despite all of this trial preparation, Miller has never said that Mr. Abdur’Rahman removed his long dark wool coat before Daniels was stabbed.

        The prosecution has never offered an explanation for this gaping inconsistency in their case: a messy blood-splattered crime scene but no blood on the alleged assailant.  According to the unrebutted forensic expert testimony from Dr. Kris Sperry, the Chief Medical Examiner for the State of Georgia, Daniels’ wounds would undoubtedly have splattered blood on the assailant’s clothes, and those stains could not have been removed from the coat even if the coat had been cleaned.  Further, Dr. Sperry testified that the tests administered by the T.B.I. Lab would have detected blood stains despite any possible cleaning.

        In the face of the blood evidence, the only plausible explanation of what happened that night in Daniels’ apartment is that Miller, the codefendant who was subsequently paroled in approximately six years, was the actual assailant.  This theory fits with other circumstantial evidence in the case, including some of Miller’s seemingly irrational behavior on the day of Mr. Abdur’Rahman’s arrest, his quick exit from Tennessee to flee arrest, and numerous internal and external inconsistencies in his testimony and statements to the prosecution.

        This blood evidence was clearly important in Mr. Abdur’Rahman’s case, but his trial lawyer was never availed himself of it because he never became aware of its existence.  Indeed, the institutional records in this case demonstrate that Mr. Abdur’Rahman was told that blood was found on his clothes, and given his own lack of memory, he believed what he was told.  He was never told the truth, that there were no blood stains on his clothes.  The prosecution, however, was aware of the blood evidence, and of the doubt it raised as to whether Mr. Abdur’Rahman was the assailant, yet the state’s lawyers never disclosed the blood evidence to the jury.  Instead, the prosecution single-mindedly pursued a death penalty against Mr. Abdur’Rahman and effectively denied the jury a full account of the real evidence in the case.

        In litigation after the trial, the prosecution’s only rebuttal to the blood evidence is that, allegedly, Mr. Abdur’Rahman admitted to the killing during the sentencing hearing in his trial.  This, too, is contrary to fact.  Mr. Abdur’Rahman has consistently maintained that he has no memory of what occurred at the time of the stabbing.  All mental health experts who have evaluated the evidence have stated that in all likelihood, because of his mental illnesses, Mr. Abdur’Rahman dissociated and blacked out at the time of the stabbings and therefore would have no memory of what happened.  Such a blackout would be consistent with the reports in Mr. Abdur’Rahman’s prior prison records of other times when he blacked out when under stress.  A careful reading of Mr. Abdur’Rahman’s sentencing stage “confession,” where he was willing to take responsibility for what happened as part of his plea to the jury to spare his life, confirms that he never testified that he had an actual memory of what happened.  Mr. Abdur’Rahman was told, contrary to fact, that blood was found on his clothes, which he believed.  He was never prepared by his trial counsel to testify on his own behalf, and was never told until the morning of the sentencing hearing that he would be called to the stand.  Shortly after he began his testimony, Mr. Abdur’Rahman broke down, causing the trial judge to call a recess.  Mr. Abdur’Rahman only knew that he was in front of the jury that had just convicted him, and he pleaded with them to spare his life.  Not able to independently recall the actual assault, laboring under the mistaken belief that the victim’s blood had been found on his clothes, and having witnessed Miller’s testimony identifying him as the assailant, Mr. Abdur’Rahman was unable to honestly deny that he was the assailant.

        It must be pointed out that under the Davidson County District Attorney General’s current Death Penalty Guidelines, Mr. Abdur’Rahman’s case would not qualify for a death penalty prosecution.  Guideline 9 states: “The Office of the District Attorney General will seek the death penalty only in those cases where the evidence of guilt is substantial.  The death penalty will not be sought in cases where the evidence consists of the uncorroborated testimony of a single eyewitness or of a cooperating codefendant or accomplice.”  Because the critical evidence in Mr. Abdur’Rahman’s case consisted of the uncorroborated testimony of codefendant Miller, whose testimony lacks credibility, Mr. Abdur’Rahman’s case would not now qualify as a capital case in Davidson County.

IV.  THE TRIAL AND ITS AFTERMATH


        Mr. Abdur’Rahman was not given a fair trial.  This much is beyond dispute.  A fundamental question presented by this case, therefore, is whether the State of Tennessee should execute a man who has never been given a fair opportunity to present his case to a jury of his peers.  If Mr. Abdur’Rahman were tried today, the outcome would be vastly different: under current guidelines, the prosecution would not pursue a death sentence; and, in any event, jurors would undoubtedly spare his life.

        Judge Todd Campbell put it this way:

            The Court is persuaded that had counsel presented the other evidence of Petitioner’s background and mental history, there is more than a reasonable probability that at least one juror would have voted for a life sentence rather than the death penalty.  It only takes one juror to decide that the mitigation evidence presented by the Petitioner outweighs the aggravating circumstances established by the prosecution.  No mitigation evidence was presented during Petitioner’s sentencing, and therefore, it is not surprising that the jury struck the balance in favor of the death penalty.

999 F.Supp. at 1096.

        A.  Prosecutorial Misconduct.

        Mr. Abdur’Rahman did not have a fair trial because the prosecutor, Mr. John Zimmermann, who has a well-documented history of misconduct, engaged in a fraudulent and deceptive scheme of withholding evidence and of making misrepresentations.  We urge the Governor to carefully review Appendix C to this Application, which sets forth various instances of court reprimands of Mr. Zimmermann as a prosecutor, and Appendix D, which describes in some detail the pattern of prosecutorial misconduct in this case.

        Mr. Zimmermann’s misconduct included: the withholding of exculpatory (Brady) material and information; misleading statements to defense counsel concerning the crucial blood evidence raising doubt about whether Mr. Abdur’Rahman was the actual assailant; fraudulent and prejudicial misrepresentations to MTMHI regarding the circumstances of the offense and Mr. Abdur’Rahman’s mental state and background; fraudulent and prejudicial misrepresentations to defense counsel about the nature of Mr. Abdur’Rahman’s prior murder conviction; improper presentation of inadmissible and prejudicial evidence to the jury at trial, which the Tennessee Supreme Court previously characterized as “border[ing] on deception,” State v. Jones, 789 S.W.2d 545, 552 (Tenn. 1990); improper coaching and manipulation of witnesses; and improper jury argument that Zimmermann must have known was false based on information contained in his own files.

        As a consequence, the jury convicted and condemned Mr. Abdur’Rahman to death based on a false picture of every aspect of this case including: the circumstances surrounding the offense; Mr. Abdur’Rahman’s true motives in entering Daniels’ apartment; the circumstances surrounding Mr. Abdur’Rahman’s prior murder conviction; Mr. Abdur’Rahman’s mental condition and his background; and Mr. Abdur’Rahman’s personal character.

        The factual basis for the prosecutorial misconduct claims is a matter of court record and has not been and cannot be seriously disputed by the state -- Mr. Abdur’Rahman introduced the evidence supporting these claims in the federal habeas evidentiary hearing, and the evidence has not been rebutted.  The federal district court, however, dismissed these claims on procedural default grounds - legal technicalities -- because Mr. Abdur’Rahman’s state court-appointed counsel failed to include the claims in their state post-conviction appeal.  These claims have not been ruled upon by any court.

        B.  Ineffective Assistance of Counsel.

        Every court that has collaterally reviewed this case has concluded that Mr. Abdur’Rahman was not adequately represented by trial counsel at either the guilt or sentencing stages of this trial. We urge the Governor to carefully review Appendix E to this Application, which describes defense counsels’ conflict of interest, and Appendix F , which describes many of the defense counsels’ failures.

        Trial counsel in this case labored under a conflict of interest.  Mr. Allen Boyd and other members the SGM were accessories to the crime, and they furnished Mr. Abdur’Rahman’s lawyer with a $5,000 retainer to represent Mr. Abdur’Rahman along with the promise to pay an additional $10,000. Trial counsel admitted in the federal habeas hearing that he did not begin work on the case because he never received the promised $10,000 retainer.  By accepting a $5,000 retainer and relying upon a promise for the additional $10,000 retainer from a third party source who was also an accessory to the crime, trial counsel was involved in an actual conflict of interest that adversely influenced his performance in the case.

        As the federal district court pointed out, trial counsel performed absolutely no investigation into the circumstances surrounding the offense or Mr. Abdur’Rahman’s background.  Specifically, trial counsel were completely unaware of the fact that Mr. Abdur’Rahman’s clothes contained no blood stains, a fact completely contradictory to the state’s theory that Mr. Abdur’Rahman was the assailant.  See , 999 F.Supp. at 1094. Trial counsel failed to furnish MTMHI with any background information relevant to their evaluation of Mr. Abdur’Rahman.  Id.   They failed to request Mr. Abdur’Rahman’s extensive mental health records, or his educational, prison, or military records.  As Judge Campbell found, “This was a serious failure.” Id.  Trial counsel never filed a motion requesting the trial court to declare Mr. Abdur’Rahman indigent, and requesting investigative and expert services.  Judge Campbell commented, “This was a grave omission.”  Id.   Trial counsel never introduced at trial any information from the MTMHI records relating to Mr. Abdur’Rahman’s background or mental history.  Judge Campbell pointed out, “These were substantial errors.”  Id. Trial counsel did not call anyone in Mr. Abdur’Rahman’s family to testify during the sentencing hearing, and they never contacted any members of his family.  Judge Campbell commented, “These were significant mistakes.”  Id. at 1075.  Trial counsel completely failed to investigate the nature of Mr. Abdur’Rahman’s prior convictions.  Judge Campbell said, “This was a substantial error.” Id.

        The fabricated theory presented by the prosecution was never challenged because Mr. Abdur’Rahman’s lawyer never prepared the case for trial.

        Judge Campbell, although having reviewed only the ineffective assistance of counsel claims without considering the prosecutorial misconduct claims, ultimately concluded:

        Thus, this Court, like the state post-conviction trial court and appeals court, finds that trial counsel’s performance during the guilt phase and during sentencing was deficient.

        …   …   …

        The Court acknowledge[s] that Lionel Barrett and Sumter Camp have good reputations in the Nashville bar for being fine criminal defense lawyers. This case illustrates that lawyers do not make cases based on their reputations. A lawyer must actually work on each case.  Cases are made through factual investigation, research, writing, witness preparation, trial strategy, and a bit of good fortune.  In this case, the hard work required was simply not done.  This Court agrees with the state post-conviction trial and appellate courts that Mr. Barrett and Mr. Camp provided inadequate representation.  Good lawyers can and do fail.  Here, Mr. Barrett and Mr. Camp utterly failed in their duty to adequately represent their client, who, as a result of this miscarriage of justice, was unconstitutionally sentenced to death.  This is not a case of harmless error.

999 F.Supp. at 1095, 1101 (emphasis added).

        Because trial counsel conducted absolutely no investigation, they failed to present any witnesses or any evidence at all during the guilt stage of the trial, even though Mr. Abdur’Rahman had strong guilt stage defenses.  As pointed out above, the unpresented guilt stage defenses included the fact that, in all likelihood, Mr. Abdur’Rahman was not the assailant, as indicated by the unpresented forensic blood evidence.

        Moreover, Mr. Abdur’Rahman had insanity and diminished capacity defenses that his trial counsel never recognized or explored.  As pointed out above, Mr. Abdur’Rahman has a well documented history of mental illnesses, and he has been diagnosed with Borderline Personality Disorder and/or Post-Traumatic Stress Disorder by a number of mental health professionals, including the state’s leading mental health expert in this case.

        Trial defense counsel also failed to present any meaningful mitigation evidence in the sentencing stage of the trial.  Because trial counsel conducted absolutely no investigation into Mr. Abdur’Rahman’s background, the jury was never offered a reason to impose a life rather than a death sentence.  As the federal district court pointed out, “This is not a case where counsel collected and put on the significant mitigating evidence and merely failed to get everything.  This is a case of no mitigating evidence - none - being offered to the jury despite its availability and abundance .”  999 F.Supp at 1101 (emphasis added).  Consequently, the jury never heard any of the evidence concerning: Mr. Abdur’Rahman’s good character; his good behavior and perfect work history while he was in the free world; his extensively documented history of the extreme physical, sexual and emotional abuse he suffered during most of his life; or his well documented history of mental illness.

        After the trial, defense counsel wrote a note, which was later found in his file, calling Mr. Abdur’Rahman, the client whom he had failed to adequately represent, a “dumb mother fucker.”

        C.  Cumulative Effect of Defense Lawyers’ Failure and Prosecutorial Deception.

        It is important to note that trial counsel’s failure to prepare was exponentially compounded by the prosecutor’s misconduct.  Our system of justice might be counted on, in most cases, to correct one of these problems.  But, as illustrated by Mr. Abdur’Rahman’s case, our system of justice was not equipped to deal with the interrelated and compounding effect of these two sets of problems.  A prosecutor may lie or misrepresent or withhold evidence, but if defense counsel does his job, the prosecutorial misconduct might be checked or exposed.  Conversely, a defense counsel may fail to prepare for a case, but an honest prosecutor, who represents the citizens of the state and whose job is to  be fair, should ensure that all evidence is disclosed to the jury, especially clearly exculpatory material.  The state has no interest in wrongful convictions, much less wrongful condemnation to death.  Where, however, the lawyers on both sides of the case utterly fail in their respective duties, as occurred in Mr. Abdur’Rahman’s case, justice is virtually impossible.  In this kind of situation, there is no meaningful adversarial testing upon which our legal system relies.
        D.  Appellate Review.

        The appellate and post-conviction processes for review in these kinds of cases are heavily encumbered by procedural obstacles.  There are numerous pitfalls in the system which stand in the way of full review.  In the state system, post-conviction counsel are given virtually no resources to engage in the kind of preparation required to put the case together, especially when trial counsel did utterly no work on the case; and in the state court system there is a strong, almost irrebuttable presumption that the trial result was correct.  In the federal habeas process, the state consistently and persistently takes the position that the defendant should be prevented from presenting his claims or his newly discovered evidence.  When the federal courts sustain the state’s position, as has occurred in Mr. Abdur’Rahman’s case, and prevent the defendant from ever presenting his full case, then it cannot be said that the system is capable of correcting the kinds of problems that existed with Mr. Abdur’Rahman’s trial.

        On direct appeal from the trial, after the relationship between trial counsel and Mr. Abdur’Rahman had deteriorated beyond recovery, the trial court forced Mr. Richard Dinkins, an unwilling attorney, to represent Abdur’Rahman on appeal.  Mr. Dinkins objected to the appointment, explaining to the trial court that he had no experience litigating death penalty cases and considered himself unqualified to do so.  The trial court overruled Mr. Dinkins’ objection.  After the appeal was completed, the trial court again forced Mr. Dinkins to remain on the case in post-conviction, over his objection.  At this point, Mr. Dinkins’ appointment created a conflict of interest: as post-conviction counsel, he would be under a duty to evaluate whether he offered ineffective assistance of counsel as Mr. Abdur’Rahman’s attorney in the direct appeal.

        The trial court allotted slightly more than $8,000 for investigative and mental health resources during the entire course of the state court proceedings, from the time of indictment through the trial, the direct appeal, and the entire post-conviction process.  This sum was grossly inadequate for the job.  This was especially true in light of the fact that Mr. Abdur’Rahman’s father was in the military and had moved the family to a number of states.  Through the course of his life, Mr. Abdur’Rahman lived in a variety locations including North Carolina, California, Washington, Hawaii, Pennsylvania, South Dakota, and Illinois.  Compounding the complexity of investigation, Mr. Abdur’Rahman had been institutionalized in mental hospitals and correctional institutions throughout the country, and proper legal representation required review of all records from these institutions - something, of course, that trial counsel never even attempted.

        In the post-conviction appeal, the panel at the Court of Criminal Appeals dispatched Mr. Abdur’Rahman’s claims without significant or meaningful discussion.  See, Jones v. State, 1995 WL 75427 (Tenn.Crim.App. 1995).  The Application for Permission to Appeal filed with the Tennessee Supreme Court was denied without comment.

        In federal district court, Mr. Abdur’Rahman for the first time was offered an opportunity to properly prepare and present his case in a full two-week evidentiary hearing that included over twenty witnesses and over 150 trial exhibits.  At the conclusion of the hearing, the federal court described the available but unpresented mitigating evidence to be “abundant,” “very impress[ive],” “vivid,” “significant,” “extremely credible,” “compelling,” and “overwhelming.

        Based upon these findings, the federal district court ruled that the death sentence should be vacated.  In announcing its decision, the district court explained:

        This conclusion is not one the Court reaches casually.  The Court [is] mindful of the importance of the sovereignty of the State of Tennessee and the need to respect the certainty and finality of court judgments.  This Court has no interest in simply second-guessing the decisions of the state courts.  But the overwhelming nature of the evidence presented to this Court, a significant portion of which was not presented to the jury or the state courts, and the almost complete failure to present a defense at Petitioner’s sentencing hearing, compels the Court’s conclusion that Petitioner’s death sentence cannot stand. The Constitution of the United States, and this Court’s duty to uphold its principles, mandate the issuance of the writ of habeas corpus as to Petitioner’s death sentence.

999 F.Supp.  at 1101-2 (emphasis added).

        The state appealed from the district court’s ruling, but did not challenge any of the district court’s findings on ineffective assistance of counsel.  Instead, the only issues the state raised on appeal were technicalities: whether the district court had legal authority to conduct an evidentiary hearing in the habeas proceeding.  The only argument the state made on appeal was that the district court should have ignored the “compelling,” “overwhelming” and “abundant” evidence that was presented in the district court hearing, evidence that was never presented to the jury.  Throughout the federal habeas appellate proceedings, the state’s only position was that the courts should turn a blind eye to the facts in this case and to execute a man based on a false and incomplete story.

        However, a United State Supreme Court opinion clarified that Judge Campbell had acted within his authority to conduct an evidentiary hearing and to consider the new evidence presented in that hearing.  The Sixth Circuit appellate panel had no choice, therefore, but to reject all of the state’s arguments on appeal.  Amazingly, however, without any prior notice to Mr. Abdur’Rahman, and without any discussion or analysis, the panel majority determined that the evidentiary record from the district court did not support that court’s decision. The panel majority reversed the district court decision and reinstated Mr. Abdur’Rahman’s death sentence.

        Judge Cole issued a strong dissent from the panel majority’s decision. 226 F.3d at 720-4. Judge Cole reiterated the indisputable point that, “Counsel’s failure to investigate or properly prepare for sentencing resulted in the presentation of essentially no mitigating evidence to the jury at the sentencing phase.”  Id. at 721.  At the conclusion of his detailed opinion, Judge Cole concluded:

            Had counsel adequately performed, the jury weighing whether a death sentence was an appropriate punishment for Abdur’Rahman would have had a representative picture of the person they were sentencing, instead of the one-sided account upon which they based their decision.  Like the petitioner recently before the Supreme Court, Abdur’Rahman has “a constitutionally protected right to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer.”  Williams v. Taylor , 120 S.Ct. at 1513 (2000).  Given the total lack of mitigating evidence presented at Abdur’Rahman’s sentencing hearing, “counsel’s conduct so undermined the proper functioning of the adversarial process that the [sentencing hearing] cannot be relied on as having produced a just result.”  Strickland , 466 U.S. at 686; see also Austin , 126 F.3d at 848; Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1996).  I respectfully dissent.

Id. at 724.

        To date, no state or federal judge has reviewed the merits of the prosecutorial misconduct claims in this case.  Nor has any state or federal court addressed the question of  how the ineffective assistance of counsel cumulated with the misconduct of the prosecution to the prejudice of Mr. Abdur’Rahman.

        It is a cruel irony that while Mr. Abdur’Rahman’s death sentence was reinstated by the Sixth Circuit panel on an issue that was never raised by the state on appeal, at the same time Mr. Abdur’Rahman has been completely precluded from presenting the bulk of his prosecutorial misconduct claims in the federal habeas proceedings merely because of his post-conviction counsel’s failure to include those claims in his application for discretionary appeal to the Tennessee Supreme Court.  This is the ultimate “whipsaw.”  The irony here is especially cruel and unfair in light of the Tennessee Supreme Court’s recent promulgation of Tenn.S.Ct.R. 39, on June 28, 2001, which provides that a discretionary appeal to the Tennessee Supreme Court has never been available for the purpose of preserving claims for federal court review.  The recent Tennessee Supreme Court Rule 39 makes clear, therefore, that the federal district court erred by its refusal to hear the prosecutorial misconduct claims.

V.  MR. ABDUR’RAHMAN’S CHARACTER AND CITIZENSHIP
 


        Attached to this petition as Appendix G is a statement from Linda Manning, Ph.D., together with copies of various prison records and other statements, which describe Mr. Abdur’Rahman’s prison record and accomplishments in Tennessee.  We urge the Governor to carefully read Appendix G.

        Mr. Abdur’Rahman is a deeply spiritual person.  He converted to Islam in 1988 and has been a scholar of the Qur’an ever since.  He participates in prayer five times a day, according to Islamic tradition.  He also participates in the Ramadan period of fasting every year and assists other inmates in their practice.  He has taught himself the Arabic alphabet and correct Arabic pronunciation.  Mr. Abdur’Rahman is the Muadhiim for his Pod, and performs to Call to Prayer for the Muslim inmates.

        His spiritual study is not limited to Islam, however.  He has an interest in all of the major faiths and wisdom traditions.  One of his favorite books, and one that he has studied extensively and quotes regularly, is The World’s Religions by Huston Smith.  He has a deep interest in Native American spirituality (he is part Cherokee and he lived on the Yellow Thunder Indian Reservation for eight months) and has read and studied in this area.  He also has extensive knowledge of the Bible, and has begun to learn about Buddhism.  He meditates daily, and works to apply his spiritual beliefs to his daily life.

        Mr. Abdur’Rahman’s genuine thirst for knowledge has led him to continue his education even from death row.  He has completed a certificate program at the School of Paralegal Studies of the Professional Career Development Institute.  He completed the Foundation Course with and average of 95, participated in the honors program, and completed an Advanced Course in Civil Litigation with an average of 95.  This program is fully accredited by the Distance Education and Training Council and recognized by the U.S. Department of Education.  Mr. Abdur’Rahman graduated with honors.

        While on death row, Mr. Abdur’Rahman has devoted a great deal of his time and resources to help others.  He is especially concerned about children who are living in abusive situations such as the one in which he grew up.  He has been a regular “call-in” visitor to radio programs dealing with family violence.  Sumayya Coleman, founder of Ujima House - a shelter and outreach program for women of color dealing with domestic violence, credits Mr. Abdur’Rahman with opening the conversation to men and their concerns.  He regularly participates on the WFSK radio program “Positive African-American Men and Women United.”  He has written articles and brochures on the effects of child abuse.  Even though he earns only $15.00 a month while in prison, he has made financial contributions to Ujima House.  Over the years he has reached out to the broader Nashville community in numerous other ways.

        Mr. Abdur’Rahman  also works to maintain the peace within Riverbend Maximum Security Institution.  He has been an inmate advisor for many years.  When another inmate is facing disciplinary charges, Mr. Abdur’Rahman represents him.  He works to discover the facts before the hearing and to propose a solution that respects the rights of the inmate and the safety and security of the correctional officers.  He has also been the Pod Representative for his Pod for several years.  In this elected position, he works with the warden and assistant warden to address inmate grievances and concerns.  Mr. Abdur’Rahman is well liked and respected by both inmates and staff at the prison.

        Mr. Abdur’Rahman’s record on death row since 1987 has been unblemished.  His prison record is replete with favorable comments from the prison authorities.  Here are just some of the many examples:

        “I know and realize that it is hard to always maintain a positive attitude and a good working relationship with Security Staff.  It is that effort that you have demonstrated over the past years that I appreciate and am thanking you for now.”  (Correctional Officer Carter, 1992).

        “Inmate Abdur’Rahman continues to exhibit appropriate behavior and attitude.  No disciplinary reports during this period.  Inmate does an excellent job as Pod custodian and gets along well with staff and inmates.  Participates in Unit activities and unit adjustment sheets and cell inspections are very satisfactory.  Staff reports that C Pod is the cleanest Pod in the unit.”  (1993).

        Inmate Rahman works very hard.  I can say that he has done any job asked of him.  He is an asset to the kitchen.” (Cpl. Gray, 1993).

        “This memorandum is for the purpose of expressing my appreciation and acknowledgment of your positive contributions that are continuously displayed on a daily basis in your work and living environments.”  (Barbara Boswell, CCO, 1994).

        “Mr. Rahman continues to do an outstanding job working in Unit 2 kitchen.  Has no disciplinary reports.  Unit adjustment report forms reflects that his cell is kept clean and neat.  Interacts well with staff and other inmates.”  (1995).

        “You have always worked very hard to help Staff and other inmates.  I have always found your work to be excellent.  Your hard work and ability to be helpful to Staff and others is a quality that you have demonstrated that makes my job as a Security Supervisor easier.  I know it is not always easy to work and live with other Staff and Inmates and maintain a positive attitude at all times but your capacity to do just that, and the hard work that you perform as the Unit Kitchen Worker, and your attitude and good behavior, is why I am writing you this letter of appreciation.”  (Cpl. Tony Eden, Unit 2 Security Supervisor, 1995).

        “I appreciate the exceptional job done by Mr. Rahman in the Unit 2 Food Services area.”  (Unit Manager, 1995).

        “Mr. Abdur’Rahman continues to work as Unit 2’s Inmate Advisor, and does a fine job.  He is always respectful to staff; his interaction with other inmates is appropriate; he maintains a positive attitude; he keeps his cell clean.”  (1997).

        “Abu Ali is very neat and pleasant gentleman.  He always listens to fellow inmates and has their confidence.  Never a problem.”  (1997).

        “Abu works a lot in his cell.  He gets along with staff and fellow inmates.  He is very respectful and has a good attitude.  He really is an example inmate.”  (1997).

        “Abdur’Rahman works daily as the pod rep, attending to other important matters and bringing it to the attention of others.  Inmate is very polite and pleasant to talk to and be around.  Keeps cell very neat and clean.  A very model inmate.”  (1999).

        “Thank you for your hard work in making Unit 2 run smoother over the years.”  (Unit Manager, 1999).

        “Inmate Abu Ali is B-pod rep.  Participate in group activities, causes no problems.  Keep other inmates informed of daily activities.  Gets along well with others.  Respectful towards staff.  Inmate Abu-Ali did an outstanding job in B-pod Rockman (slang term for custodian).  Keep the pod clean and neat and up to standard.”  (2000).

        “Inmate seems to get along with everyone.  He always try to help other inmate out when he can & he always go to the yard.”  (2001).

        Appendix G contains several other similar statements from correctional officials about Mr. Abdur’Rahman.  Of particular note is a letter recently written by Michael Dutton, Warden at Riverbend Maximum Security Institution from 1989 to 1995:

        “Mr. Rahman worked with me very closely as an inmate council member and was very instrumental in helping me to initiate some of the programs for the death row unit (Unit 2).  He was very cooperative, very supportive, and made sound decisions as a representative of the unit.  In my opinion he worked hard in trying to be a positive influence on other death row inmates.  He was not always on the side of the administration but he took the facts that were presented to him and problems associated with living conditions on the unit and presented them in a way that could facilitate discussions on the issues… I understand from Warden Ricky Bell that he has maintained the positive attitude and behavior and still has a positive outlook and impact upon the unit.”


        Several people in the free world have been deeply moved and affected by the manner in which Mr. Abdur’Rahman conducts his life.  Here are some illustrative written statements from people who have gotten to know him:

        “Abu has taught me much about faith in God.  His complete faith humbles me.  I tend to think that I am responsible for everything and I am so inadequate, but Abu reminds me that God is in charge and he brings me back to reality.  It seems strange to find a spiritual adviser on Death Row.  From his Death Row cell Abu is a quieting influence.”  (Norma Fleisher).

        “Mr. Abdur’Rahman’s message has had a tremendous impact on our listeners.  His message is a simple but powerful truth: children need to be loved and nurtured in a safe environment so that they may flourish in peace together.  His contributions have been very valuable to us and the work we have done.  I hope and pray that he may continue to contribute to our community.”  (Sidney Wingfield, MSW, director of WFSK radio program, “Positive African American Men & Women United”).

        “I have learned much from visiting Mr. Ali.  Though on death row, he gave out of his spirit to encourage and touch the lives of those who would receive him.  Aware of the stereotypes that most people have about him, he continues to act out of a pure heart and would not hurt or harm anyone, and thus lives accordingly.”  (Sumayya Coleman, founder of Ujima House, Inc., a shelter and outreach program for women of color suffering from domestic violence).

        We submit that consistently over the past 16 years, Mr. Abdur’Rahman has been an exemplary and even remarkable inmate, maintaining a record unmatched among all Tennessee inmates.  Nothing would be gained, and much would be lost, if the State of Tennessee puts Mr. Abdur’Rahman to death.

              Respectfully submitted:


Bradley A. MacLean
Stites & Harbison, PLLC
SunTrust Center, Suite 1800
424 Church Street
Nashville, Tennessee 37219
(615) 782-2237     William P. Redick, Jr.
810 Broadway
Suite 201
Nashville, Tennessee 37203
(615) 742-9865