Why Beverly must appear in court

The request for the deposition is very important. Its purpose is to protect Beverly’s testimony, which is backed up by a lie-detector test, for the legal record. As Clark Kissinger, a journalist who has covered the case of Mumia Abu-Jamal for many years, explains in his report of Yohn’s decision, “If anything were to happen to Beverly before he can come to court, his testimony would now be lost. The purpose in requesting his deposition is to protect that testimony for the record. A deposition is much like the appearance of a witness in court. The witness is sworn in, is questioned by both sides, and his testimony is recorded. Such a deposition can later be used in court if the witness is unavailable.”

Judge Yohn’s decision to deny the Beverly deposition is really a decision to keep proof of Jamal’s innocence out of the federal court. Thus, Yohn is carrying out President Clinton’s Effective Death Penalty Act of 1996, whose purpose was to speed up the execution process of death row inmates by cutting away their rights to appeal their convictions. As such it violates the U.S. Constitution in which the right of habeas corpus is enshrined.

Mumia Abu-Jamal is the only death row prisoner I know of who has an active claque of right-wingers, police organizations and spokespeople who are actively campaigning for his execution! Now they seem to be joined by a federal judge. Jamal is a passionate spokesman for social justice, against the prison-industrial complex, the death penalty, and for international solidarity with workers and oppressed peoples worldwide. He worked as a radio journalist before he was falsely convicted of the murder of Faulkner. Though Jamal’s own account of where he was and what he was doing at the time of the murder makes it clear that he stumbled upon the scene accidentally, his record of radicalism in active support of Black liberation struggles made him an attractive scapegoat for a murder that, according to Beverly’s confession, was an inside job by the police against a non-cooperating one-of-their-own (Officer Faulkner) who was on to, put not part of, the widespread corruption in the Philadelphia police force. The cops had been cooperating with and protecting the mob in their enterprises involving prostitution, gambling and drug sales. Even the FBI and the Justice Department were investigating the Philadelphia Police Department for these kinds of corrupt activities during the time of this trial and conviction.

Court’s decision is a political one

This court’s decision to deny proof of innocence is a very political one seeming to bolster and prop up the government’s steamrolling use of the death penalty as a measure of social control in a society that cannot meet the elementary needs of the people. But it flies in the face of the unavoidable fact that almost 100 death row prisoners who were able to have evidence of their innocence proved in court in time to stop the executioner from carrying out their death sentences were recently released from prison.

The decision is consistent with, and even cites, the U.S. Supreme Court Herrera decision of 1993 in which even proof of innocence may not be considered in a federal appeals court to overturn a state court conviction. In other words, the Herrera decision allowed the state to execute Herrera without hearing evidence of the man’s innocence. Yohn’s decision announced to the world that he would also allow Jamal to die without evidence of his innocence being heard in court. In the legalese used to justify such treachery, Yohn’s decision was that all findings of the lower courts would stand, despite any hard evidence contradicting those findings.

Arnold Beverly came forward with his confession in 1999, not in time for Jamal’s trials and appeals. But Beverly’s confession is consistent with all the facts the defense has established in the case of what happened on Dec. 9, 1981.

Jamal’s new defense attorneys have submitted a voluminous brief to the court which details the extreme measures the prosecution employed to get the original guilty verdict—the death sentence—and to have this conviction upheld through the appeals process so far.

For example, Cynthia White, one of the two key “eye-witnesses” for the prosecution in the original trial, testified with opposite answers in Jamal’s murder trial and his brother’s assault trial. The same lawyer prosecuted both these cases! In the brother’s trial, she claimed that Jamal’s brother had a passenger in his car who disappeared from the murder scene. In Jamal’s trial she said there was no passenger in the car. Actually, the passenger in the brother’s car, Kenneth Freeman, was an accomplice to the murder of Officer Faulkner. But the prosecution claimed (over and over again) that Jamal and his brother were the only people at the scene of the crime with Officer Faulkner and that having eliminated the brother, Jamal was the only possible assailant. So much for the prosecution’s service to the truth!

Prosecution’s case crumbling

Now, the prosecution wants no part of hearing the confession of another man, Arnold Beverly, to the murder. If the case is successfully re-opened with a new court proceeding to hear the evidence, the prosecution’s case will crumble like a stale cake. The prosecution pressured witnesses to change their testimony and offered perjured testimony to “prove” their case, they bought witness Chobert’s cooperation by ignoring his law-breaking and parole violation (he was a convicted arsonist!), they elicited a false report of a confession despite much evidence that there was no confession nor could there have been one, they illegally excluded qualified Black jurors from the jury and kept witnesses for the defense out of court. These are only a few examples of misconduct by the prosecutors. The original trial judge, Albert Sabo, violated Jamal’s rights to a fair trial in numerous ways including turning over evidence to the police providing them with the opportunity to tamper with it, providing incorrect instructions to the jury during the penalty phase of the trial practically guaranteeing a death sentence by precluding their consideration of mitigating evidence (such as Jamal’s lack of a police record), barring Jamal’s right to the assistance of John Africa for his defense at the trial.

Jamal’s new brief also excoriates all the lawyers who have worked for the defense over the years, from the original trial, appeals, to the Post Conviction Relief proceeding in 1995 and beyond for ineffectiveness in providing Jamal with an adequate legal defense in pursuing all the misdeeds of the prosecutors and all the evidence of Jamal’s innocence, such as the Beverly affidavit which has been in the hands of the defense since 1999 but has only been released to the public and brought to court this Spring, two years later.