By C. Clark Kissinger
Revolutionary Worker, No. 1113, August 5, 2001 posted at http://rwor.org
In yet another step in the government’s plan to railroad Mumia Abu-Jamal into the death chamber, a federal court has refused to take testimony from a man named Arnold Beverly, who has come forward to state that he is the person who actually shot Police Officer Daniel Faulkner in 1981. A man has come forward to say that he committed the crime, and Federal District Judge William H. Yohn will not even listen to what he has to say.
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 was 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.
In denying Mumia’s request to depose Beverly, the July 19 federal court decision went far beyond a simple "No." Judge Yohn took the occasion to write a 12-page lecture on how the 1996 Anti-Terrorism and Effective Death Penalty Act will be used to block virtually every avenue of appeal by Mumia.
When a man’s life is on the line--especially a revolutionary who represents the aspirations of the people--the courts have a moral obligation to hear any and all evidence that might support his case. The people must now demand that they do just that.
Using the Effective Death Penalty Act Against Mumia
In denying Mumia’s request, the federal court repeatedly cited the 1996 Effective Death Penalty Act, a law whose very purpose was to cut off the ability of persons wrongfully convicted in the state courts to seek justice through the federal courts.
If the court were truly interested in justice, wouldn’t it want to hear a witness like Beverly? Wouldn’t the law make it easy for that to happen? On the TV show Law & Order we are told every week that the District Attorney doesn’t just try to convict, he seeks the truth. But is that what happened here? No. The Philadelphia DA strongly opposed deposing Beverly. This is the DA who had told the press that Beverly’s statement was ridiculous. Now, when given an opportunity to cross examine him under oath and "expose" him, this same DA said "no way." In agreeing to this, the federal court gave the Pennsylvania prosecutors exactly what they wanted, and much more.
The court went out of its way to list every conceivable reason why the testimony of Beverly should not be recorded. The decision listed all the various ways that the Effective Death Penalty Act applied, even speaking to issues that had not been raised. Why? Because the court is sending a message to Mumia, to his lawyers, and to the people that it is deadly serious in seeking to execute Mumia, and it intends to apply the Effective Death Penalty Act in the strictest manner to this case--knowing full well that the purpose of that law is to prevent appeals and speed up executions.
The court’s decision threw everything except the kitchen sink at Mumia’s request. The court said that Mumia had not shown "good cause" to take a deposition of Beverly. It said that Mumia was not entitled to an evidentiary hearing on Beverly, therefore he could not be deposed. It said that Beverly’s testimony (which contradicts claims of prosecution witnesses) was not relevant to any constitutional claims made by Mumia. It said that the time deadline for raising the Beverly testimony was past. It said that the state courts had to rule first on the Beverly testimony. And it said that Beverly’s testimony would not have influenced a jury to acquit Mumia anyhow.
Then the court got to the heart of the issue by saying that the Beverly testimony points to "a potential claim of actual innocence." Citing the infamous Herrera decision of the U.S. Supreme Court in 1993, Judge Yohn stated that "such a claim, absent an independent constitutional violation, may not be the subject of a federal habeas petition." What he is saying is this: Don’t even think about claiming that Mumia is innocent in this court, because the Supreme Court has ruled that actual innocence is not an issue for the federal courts to review.
Almost 100 people have now been freed from death row in the United States after it was shown that they were innocent. This has required enormous effort by attorneys, journalists, students, and activists, because the federal courts increasingly refuse to protect the innocent. As Chief Justice Rehnquist wrote in the Herrera decision: "In criminal cases, the [state] trial is the paramount event for determining the defendant’s guilty or innocence…. Federal courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution."
Finally, in a most revealing move, Judge Yohn added that the Pennsylvania state courts also ought to reject the Beverly testimony, even going so far as to suggest to the Pennsylvania courts what sections of Pennsylvania law they should cite in rejecting Mumia’s petition. Here the federal court is simply giving the green light in advance to the state courts to block any testimony by Beverly.
Take Mumia’s Fight to a Whole New Level
All this shows once again the seriousness of this struggle, and the fact that we can never depend on the courts for justice. It brings home in sharp terms just how determined this government is to take Mumia’s life, and the sort of struggle that it’s actually going to take to stop them and to free Mumia. It will require a movement that presents this government with a political situation where they stand to lose far more in trying to carry out their vicious execution plans than they could ever hope to gain.
The ruling class of this country has made it clear that the expanded use of the death penalty is a big part of their whole political agenda. It is an instrument of their dictatorship. It was hailed by both Bush and Gore in the last election. But that does not mean that they cannot be defeated. The system is vicious, but it is also vulnerable. Everywhere people are rising up against them from youth battling the police in Genoa, to Philly Freedom Summer in the streets of Philadelphia, to the high schools and colleges fighting to hear Mumia at their graduations, to the prominent people and foreign governments demanding justice in this case.
Speaking to the Mumia mobilizations on May 12, I said it will require us "to raise the specter of determined resistance, that combines our rich social diversity with the audacity of the youth in a movement that will never step back from the challenge that is before us." Now we must make good on that challenge.
Stop the Execution!
Overturn the Conviction!
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