IN A DRAMATIC news conference in Philadelphia on Friday, May 4, Marlene Kamish and Eliot Lee Grossman, two attorneys who are part of Mumia Abu-Jamal’s new legal team, made public five affidavits they had filed that day with the Federal District Court—where Mumia’s case is presently being considered by Justice William Yohn.
In one of these statements an individual by the name of Arnold Beverly asserts that he fired the shot which killed Police Officer Daniel Faulkner, during the early morning hours of December 9, 1981—the crime for which Mumia was convicted and sentenced to death.
According to Beverly, he was hired along with another man by the mob in Philadelphia to undertake against Faulkner, because Faulkner was interfering with the graft and corruption which was then rampant among Philadelphia cops. Other police officers were present at the time of the shooting and, Beverly says, they were there to protect him and help him escape.
Beverly further states that Mumia only came on the scene after the fatal shot had already been fired. Another police officer then shot and wounded Mumia.
Though asked at the news conference, Kamish and Grossman declined to speculate on Beverly’s motives for coming forward with this statement. They did, however, assure the press that he was available and prepared to testify in court.
Beverly’s affidavit is dated June 1999. Kamish and Grossman explained that they had found it when they examined the file on the case which was handed over to them in recent weeks by Mumia’s former lead attorney, Leonard Weinglass. When asked why Weinglass had not previously introduced this as evidence, they declined to speculate.
Almost eclipsed by Beverly’s dramatic statement were new affidavits by Mumia himself and by his brother, William Cook. This was the first time that either has given a complete account of what happened the night Faulkner was shot, though Mumia has repeatedly insisted on his innocence over the years.
Mumia’s account dovetails with Beverly’s. He says that as he came on the scene he was shot by a police officer, and that he had nothing to do with the killing of Faulkner.
Mumia explains in this statement that he had not testified before now because, at his original trial, he did not want to give any legitimacy to the travesty of a legal process which was taking place in Judge Albert Sabo’s courtroom. And at his Post-Conviction Relief Act (PCRA) hearing in 1995, he declined to testify on the advice of Weinglass.
Weinglass has explained on a number of previous occasions that the legal strategy in 1995 was to have Mumia tell his story for the first time in federal court, since historically the federal courts had a relatively favorable record in capital cases.
But things became more difficult with the passage by Congress, in 1996, of the “Effective Death Penalty Act” (EDPA), which severely restricts the ability of federal courts to review state death penalty cases.
Now there is a serious question about whether there will even be a hearing before Judge Yohn where Mumia would be able to testify. And if there is no such hearing in Yohn’s courtroom there can be none at any higher level of federal appeal.
Such a hearing is purely discretionary on Yohn’s part, and there is a substantial burden on Mumia to legally justify the need for it in the context of the EDPA, which says that the federal courts must give deference to all “findings of fact” by state courts.
One thing that now seems clear, however, is that Arnold Beverly’s affidavit in particular makes it much more difficult for Judge Yohn to rule that there is no need for any further evidentiary hearing, that he can decide the overall merits of Mumia’s case solely based on the written transcripts of the original trial and PCRA proceedings.
Two other important statements, also released at the May 4 news conference, add credibility to the story of police corruption and complicity in the shooting of Daniel Faulkner.
Donald Hersing states that he worked undercover for the FBI during the early 1980s, investigating graft that reached high into the police infrastructure to buy protection for those who ran prostitution, drug and gambling operations in Philadelphia. As a direct result of his testimony more than two dozen Philadelphia cops were indicted by a federal grand jury, including a former Deputy Commissioner.
In the final affidavit, Linn Washington, a respected journalist for the Philadelphia Daily News, tells of his visit to the crime scene only a few hours after the shooting of Faulkner. Unlike on previous occasions when police officers were shot, there was no attempt to cordon off the crime scene so that further investigations could take place. This was always standard procedure.
Generally, public spaces would be off limits for days under such circumstances. In this case, however, there was not even a police officer on guard, and pedestrian traffic was moving freely through the area.
For those familiar with the facts previously known about Mumia’s case, Washington’s testimony is particularly significant. One of the striking things has always been the failure by police to undertake elementary tests, routine in any case of murder with a firearm when a suspect is apprehended within a short time.
Mumia’s gun, the alleged murder weapon, was not tested to see if it had been fired. (This requires simply sniffing the barrel.) Nor were his hands tested to see if he had actually fired a gun. And later a portion of the bullet taken from Faulkner’s body was “lost” by the police, thus making it impossible to definitively determine from what gun it came, or even its caliber.
Such an outrageously negligent “investigation” of the crime is hard to explain if the police were really interested in finding out who killed Faulkner. It is, however, entirely consistent with the story Beverly tells, of a police department complicit in corruption and in the killing of Faulkner, and out to engineer a frame-up of Mumia.
Questions are being asked by many about how these new revelations fit generally into what was previously known about Mumia’s case, and how the introduction of Beverly’s affidavit affects the legal (and political) strategy.
Previously Mumia’s legal efforts were directed at discrediting the original trial and raising the myriad procedural, constitutional and evidentiary questions which surround it. This had already convinced millions around the world that Mumia was the victim of a police frameup, that his trial was a travesty, and that the verdict and sentence should be overturned by the courts.
But up to now Mumia and his attorneys had not presented, as part of these efforts, an alternative theory of what actually happened at 13th and Locust Streets on December 9, 1981.
A shift in this approach has now taken place. A theory is being put forward, with Beverly’s confession at its center. This does not invalidate all of the previous information and evidence. But it does create a new context in which the courts, and activists, can place that evidence.
On both the political and legal fronts, the question of Arnold Beverly’s credibility therefore becomes extremely important. So it is worth noting that Beverly’s affidavit is completely consistent with all of the previously known physical evidence and explains a number of the inconsistencies in police accounts (such as the failure, already mentioned, to undertake routine forensic tests).
It does contradict some of the eyewitness testimony—either testimony introduced in court or statements made to the police, or subsequently, but never entered into the legal record. However, much of that testimony is already contradictory. And Beverly’s confession is also consistent with the known record of corruption within the Philadelphia police department.
So there is nothing which, on its face, would inherently impeach Beverly’s credibility. The question remains: Why would anyone make such a confession when the potential consequences are a first degree murder conviction and a subsequent lethal injection?
This has been the subject of widespread speculation—from the possibility that Beverly is already on death row somewhere (something which is categorically denied by key spokespeople for Mumia), or that he is suffering some incurable terminal illness, to the possibility of a moral conversion.
The fact is that we simply do not know, and cannot judge until we hear an explanation from Beverly himself. Besides, the question can reasonably be turned around: Why, after all, would someone issue such a confession if it were not true?
One can, of course, imagine possibilities either way, but the most prudent course would seem to be to avoid speculation and wait until Beverly is called to testify in court, where this question will surely be posed. The prosecuting attorneys are opposing any motion to depose (take sworn testimony from) Arnold Beverly.
On the political front, as reported in the previous issue of ATC, a definitive strategic shift has also taken place, corresponding to a call from Mumia himself and from International Concerned Family and Friends of Mumia Abu-Jamal (ICFFMAJ), the Philadelphia-based committee which has for years been the spearhead of the political defense effort.
Previously a number of slogans have coexisted within the movement. Some activists stressed “Free Mumia” while others focused on the call for a “New Trial” or even “Stop the Execution.” Mumia himself, and ICFFMAJ, have traditionally urged everyone to get involved on whatever level they felt comfortable, without expressing a strong preference for one slogan over another.
During the Summer of 2000, however, four Amicus Curiae (Friend of the Court) briefs were filed pointing to significant new evidence concerning the way the frameup of Mumia was engineered—including collusion by Mumia’s own court appointed attorney, Anthony Jackson, with the judge and prosecutor against the interests of his client.
Putting these new facts together with the legal remedy which was implemented in other cases—when hundreds convicted in Philadelphia courts as a result of police corruption and false testimony were simply ordered released from prison—a decision was made to focus the international defense effort on the call that Mumia, likewise, be released.
With the decision by Mumia and his attorneys to now put forward a clear alternative theory of events this choice to focus politically on the call for Mumia’s unconditional release would seem to be even more of a political imperative.
At the same time it remains necessary to continue mobilizing support from those for whom questions may remain about Mumia’s guilt or innocence, but who are still willing to protest against the original farce of a trial and agree that his conviction should be set aside.
A major mobilization is planned for the day Judge Yohn schedules a projected hearing, where oral arguments will be presented by Mumia’s attorneys and by the prosecution. This may be the only live hearing Mumia actually gets in the federal courts, since all oral argument or new testimony is discretionary at this point.
Even with the latest affidavits there is no guarantee that Yohn will rule favorably—either on Mumia’s request that he be allowed to introduce new evidence or on the substance of his request to set aside his original conviction.
The date of this hearing in Yohn’s courtroom is yet to be announced. Activists are urged to watch the websites www.freemumia.com and www.Mumia.org for an announcement. Make plans now to come, and to help mobilize others, for Mumia’s day in court.
Steve Bloom is the author of Fighting for Justice: The case of Mumia Abu-Jamal, an activist handbook published by Solidarity.
ATC 93, July–August 2001