and on the global movement to free him:Killing Time
by Dave Lindorff
It is clear that Mumia Abu-Jamal is alive today because a mass movement was built to save him. That movement, which began initially in Philadelphia, has spread around the world in part thanks to the powerful essays Abu-Jamal himself has written, especially about the conditions on America's outrageous and ubiquitous death rows. The strength of that movement has been its inclusivity, and its focus well beyond Abu-Jamal himself, on the American capital punishment system, and on its prison-industrial complex in general.
Over the past couple of years, that broad movement has been put in jeopardy, as it has been hijacked by a narrow group of true believers and political activists who are unwilling to hear thoughtful voices of criticism or to consider challenges to a narrowly held set of beliefs, and as the defense has come under the direction of a pair of lawyers who seem obsessed with only one issue: getting into court with the testimony of Arnold Beverly, a self-described mob hit-man who claims it was he, and not Mumia Abu-Jamal, who shot and killed Philadelphia Police Officer Daniel Faulkner.
In my book, Killing Time, I report on the backgrounds of both lawyers, Eliot Grossman and Marlene Kamish. While I am sure both these attorneys are well intentioned in taking on Mumia Abu-Jamal's case, it is the unfortunate fact that Grossman, a California-based attorney, has had no death penalty experience, while Kamish, who is from Illinois, only handled one case, and her performance on that particular case involving a police slayer named Manuel Salazar, was questionable at best. She was pulled off the post-conviction hearing on that case by her employer, and both her boss and the lead attorney in the case explained to me on the record that she was dropped because she was deliberately trying to turn the defendant against his own attorneys, and tried to prevent them from using a legal argument which, in fact, is the one which ultimately won Salazar an overturning of his first-degree murder conviction.
I also explain in Killing Time what is wrong with the Abu-Jamal's Beverly strategy. Briefly, the problem is that whatever one might think of Beverly's far-out story that he was hired by corrupt Philadelphia cops to kill Faulkner because they were afraid Faulkner was ratting on them to the FBI (I happen to think it is preposterous, not because Philadelphia cops weren't incredibly corrupt, but because they would not have killed a fellow officer in such a public way and then helped their hired hitman to get away), it is a story that has absolutely no chance of being heard in a federal courtroom at this point. It is a legal dead end, but one that could end up killing Abu-Jamal.
Here's the legal problem: Back in 1999, when one of Abu-Jamal's attorneys, Partisan Defense Committee member Rachel Wolkenstein, got Beverly to swear out an affidavit saying that he was the real killer of Faulkner, she presented this new witness and his tale to Abu-Jamal. Abu-Jamal's lead attorney, Leonard Weinglass, and his legal strategist, Daniel Williams, who had Beverly tested on a polygraph, told their client that they thought Beverly was not credible, and warned that he could hurt Abu-Jamal's case. They threatened to quit the defense if Abu-Jamal insisted on using him. Wolkenstein and her Partisan Defense Committee colleague Jon Piper made the opposite argument, saying Beverly was credible and that his testimony could save Abu-Jamal. At that point, Abu-Jamal made a critical and an informed decision: he decided to go with Weinglass and Williams, and not to use Beverly. Wolkenstein and Piper quit. He may have told Weinglass he wanted Beverly's story further investigated, but the fact remains, he himself decided against using him in the habeas appeal that was filed that year.
Two years later, Williams wrote his controversial book on the subject, Executing Justice, which led to his being summarily fired by Abu-Jamal. Weinglass was fired at the same time for not having prevented Williams from writing and publishing his inside account of the defense. At that point, Abu-Jamal, unable to hire any top-flight defense attorney to take over his case, hired Kamish and Grossman (with no one checking out their credentials or professional reputation, only their politics). When Weinglass turned over all the case files to them, they of course found the Beverly statement, which they disingenuously claimed had been hidden (though obviously their client knew all about it). At that point, they apparently convinced Abu-Jamal to try to resurrect Beverly as a witness.
But as they surely knew, even with their limited knowledge of death penalty law, under U.S. Supreme Court precedent, and under the laws of the land as they stand today, a capital defendant cannot introduce evidence during an appeal which he has already rejected earlier, or which he knew about and didn't use within a few months of its discovery. Beverly, that is to say (barring a miraculous conversion of the Pennsylvania Supreme Court with its FOP endorsed majority), is a dead issue. The only way he could ever become a witness in Mumia's case would be if the defense could convince some judge that Leonard Weinglass deliberately lied to and deceived his client. And given Weinglass' long and distinguished record as a defense attorney in many celebrated political cases, it is simply inconceivable that any judge would accept such an argument—an argument which is, in truth, more preposterous than Beverly's wild story.
Some may believe Beverly. Some may think that American jurisprudence is not fair in this particular evidentiary rule (I agree it is unfair to so strictly limit an appellant's use of evidence which might prove him innocent). But that doesn't make a bit of difference. The cold reality is that the Beverly strategy is a legal dead end (unless of course, Abu-Jamal wins a new trial, in which case he could introduce any new evidence and witnesses that he wishes).
The danger is that the defense's futile obsession with this matter, and its adamant insistence that either the Pennsylvania Supreme Court or the U.S. Third Circuit Court of Appeals accept Beverly as a witness in the case, will lead the Third Circuit to reject Abu-Jamal's entire appeal, leaving him either with an unappealable death sentence or an unappealable life sentence without possibility of parole (given the makeup of today's U.S. Supreme Court, he might as well forget any appeal beyond the Third Circuit). That would be a tragedy, because he has some very good grounds for overturning his conviction—especially the so-called Batson claim that his jury was improperly and unconstitutionally stacked with white jurors because of the prosecution's repeated use of peremptory challenges to remove perfectly qualified potential black jurors at the start of the 1982 trial. (That particular claim, while rejected by Judge Yohn, was certified for appeal, meaning that alone among the 20 regarding conviction, the Third Circuit has to hear arguments on it.)
There is good reason to believe this is exactly what happened earlier in the courtroom of Federal District Judge William Yohn. Back in 2000, Judge Yohn was in contact with Weinglass about dates for evidentiary hearings on some of the claims in Abu-Jamal's habeas petition. But after Weinglass was fired, and after Grossman and Kamish were hired and immediately tried to introduce Beverly as a witness, all talk of evidentiary hearings ceased. In the end, Judge Yohn issued his ruling on the habeas petition—rejecting all 20 claims regarding Abu-Jamal's conviction—based solely on the paper record submitted by the two sides in the case. There were no arguments and there were no witnesses presented (a situation which led the judge to make several grievous and tragic factual errors and errors of judgement, as I point out in my book).
I hope those who criticize my position on these matters will take the time to read Killing Time before closing their minds to what is going on with this case.
I note that over a year and a half after they took over as Abu-Jamal's defense attorneys, Grossman and Kamish have finally hired on a death penalty expert, San Francisco attorney Robert Bryan, the former chair of the National Coalition to Abolish the Death Penalty. Bryan has been tasked with handling Abu-Jamal's Batson claim. This is good news for Abu-Jamal, as long as the Beverly issue doesn't get in the way of a forceful presentation by attorney Bryan. (Bryan, incidentally, has called the information in Killing Time on Judge Yohn's Batson ruling errors "stunning.")
Mumia Abu-Jamal's life is in the balance and he needs a movement behind him that is not simply a bunch of closed-minded true believers, but rather a group of open-eyed and knowledgeable advocates, willing to be critical of errors, and aware of what is happening and of what needs to be done to get him the new trial he deserves.http://www.nwuphilly.org/dave.html