Anatomy of a Racist Frame-Up
The Case of Mumia Abu-Jamal
Appendix No. 9: Affidavit of Rachel Wolkenstein
28 July 2001
RACHEL H.WOLKENSTEIN, being duly sworn under oath, deposes and
says:
1. I am a lawyer licensed to practice in the State
of New York. I am also admitted to practice in the United States Supreme Court,
and various United States District Courts. From 1995 through June 1999 I was a
member of the legal team headed by Leonard Weinglass which presented the
initial Petition for Post-Conviction Relief of Mumia Abu-Jamal
(Jamal) and pursued its appeal in the Pennsylvania state courts.
2. In July 1999, I resigned from Mr. Jamals defense team
because lead counsel Leonard Weinglass precluded Mr. Jamal from presenting
evidence of Mr. Jamals innocence. The exculpatory evidence that Attorney
Weinglass refused to present included the June 8, 1999 sworn confession of
witness Arnold Beverly that he, Beverly, had shot and killed police officer
Daniel Faulkner, and that Jamal had nothing to do with the
shooting. Beverly confessed that he and another man were hired to kill
Officer Faulkner, that organized crime figures and police officers were
involved in the plan to shoot Faulkner, and that police officers were present
at the shooting. Co-counsel Daniel Williams agreed with and was complicit in
the suppression of this evidence.
3. Beverlys confession not only established Jamals
innocence but also laid bare the extent and consciousness of police and
prosecutorial misconduct in prosecuting and convicting Mumia Abu-Jamal and
sentencing him to death for a crime he did not commit. Beverlys account
of the shooting did not stand alone but was supported by a wealth of
information in the record. Among other things, one detail of Beverlys
accountthat he was wearing a green army jacket when he shot
Faulknerwas consistent with the reports of several witnesses that a black
male wearing a green army jacket was involved in the shooting. Neither Jamal
nor his brother William Cook wore such a jacket. Beverlys account of
being hired to kill Officer Faulkner was consistent with the fact that there
were at least three ongoing FBI investigations of police corruption in the
Center City area where Faulkner worked at the time of his murder, and that at
least one other informant in those investigations was murdered. Beverlys
account of the shooting was also more consistent with the available physical
evidence than the prosecution scenario of the shooting (which was physically
impossible). Moreover, the claim that police hired Beverly (along with police
political bias against Jamal) helped to explain the gross police and
prosecutorial misconduct permeating the case. Additionally, Beverly was
subjected to a polygraph test and the polygraphers conclusions supported
the truthfulness of Beverlys account that he and not Jamal shot the
officer. Yet despite the mass of material supporting Beverlys account
(which is discussed in more detail in the body of this affidavit) Attorney
Weinglass and his co-counsel Daniel Williams were adamant in refusing to
present Beverlys testimony.
4. In addition to his refusal to present the sworn confession of
Arnold Beverly, Attorney Weinglass resisted and obstructed efforts to
investigate, develop and present testimony of two other eyewitnesses, William
Singletary and Mr. Jamals brother William Cook, both of whom stated that
Jamal did not shoot P.O. Faulkner. According to Singletary, a black male
passenger wearing a green army coat got out of William Cooks Volkswagen,
shot Faulkner, and fled the scene. Singletary also testified that police
officers appeared on the scene immediately after the shooting. In a sworn
statement dated May 15, 1999 William Cook confirmed that there was a passenger
in his Volkswagen that night, identified this passenger as his business partner
Kenneth Freeman, and stated that Freeman said he had participated in the
shooting of Faulkner and that there was a plan to kill the officer. Attorney
Weinglass undermined the presentation of Singletarys testimony and
refused to present the sworn statement of Cook.
5. With regard to William Cook, Attorney Weinglass not only failed
to present his exculpatory testimony, but perpetrated a fraud upon the federal
district court by affirmatively misrepresenting in the federal habeas petition
that Cook disappeared and thus was not available to testify in the
habeas proceedings. The truth is that Weinglass had actual knowledge of
Cooks whereabouts and that Cook wanted to fully testify about the events
of December 9, 1981. In May 1999 Attorney Weinglass was at a meeting with
William Cook which concluded with Cook signing a sworn statement exonerating
Mr. Jamal and stating that he had knowledge that there was a plan to kill
Officer Faulkner.
6. Attorney Weinglass also failed to present the testimony of
Mumia Abu-Jamal during the PCRA proceedings or in the federal habeas corpus
proceedings begun in October 1999. Mr. Jamal did not witness the shooting of
Officer Faulkner and was himself shot and critically wounded as he approached
the scene. Mr. Jamals account of what he did witness and experience as
set forth in his affidavit filed in this action on May 4, 2001 is consistent
with key elements of the evidence provided by Arnold Beverly, William
Singletary and William Cook. Mr. Jamal followed lead attorney Weinglass
advice against testifying in the Pennsylvania state court proceedings. Attorney
Weinglass agreed that Mr. Jamal would testify in the federal habeas proceeding
but did not present his testimony.
7. The obstruction of the presentation of the exculpatory
testimony of Beverly, Singletary and Cook as well as Jamals own account
was part and parcel of Attorneys Weinglass and Williams refusal to
present a defense that Mr. Jamal is an innocent man who is the victim of
monumental police and prosecutorial misconduct including the fabrication of
evidence. Attorneys Weinglass and Williams suppression of evidence of
their clients innocence constituted disloyalty to and an effective
abandonment of their client. Their disloyalty reached its culmination when
Daniel Williams, with Attorney Weinglass assistance, published a false,
self-serving and unauthorized inside account of the Jamal case,
Executing Justice, which amounted to a pre-emptive strike against the
evidence of Mr. Jamals innocence. Attorney Weinglass did not prevent the
publication of the book nor fire Daniel Williams for publishing it, but has
publicly and falsely stated that [I] dont think that its done
any legal damage to the case. On the contrary, the Philadelphia District
Attorney has quoted extensively from Williams book in order to defeat
Jamals efforts to present this evidence of his innocence. As a result of
their gross act of disloyalty, Mr. Jamal fired Attorneys Weinglass and Williams
and his new legal team is presenting the critical evidence of Jamals
innocence which Weinglass and Williams had suppressed.
Background
8. I began working for Mr. Jamal in 1987 as an attorney on matters
primarily relating to his prison conditions. Throughout my years as an attorney
for Mr. Jamal I worked on a pro bono basis and have never accepted legal fees
for my work. In 1989, Mr. Jamal was represented in his criminal case by his
state-appointed appellate counsel, Marilyn Gelb. After Mr. Jamals direct
appeal to the Pennsylvania Supreme Court was denied in March 1989, I assisted
Mr. Jamal in finding new counsel to represent him in post-conviction
proceedings. During the period before Mr. Jamal had counsel representing him in
preparing a post-conviction petition, I came upon information and evidence
relevant to Mr. Jamals defense, most significantly the background
information provided by Arnold Beverly and the exculpatory witness statement of
William Singletary. I took efforts to preserve any evidence that came into my
possession. However, my primary task was to assist in finding experienced
counsel for Mr. Jamal who would bring this evidence forward.
9. Mumia Abu-Jamal always maintained his innocence
of the shooting death of police officer Daniel Faulkner. Mr. Jamal confirmed
his innocence to me in unequivocal and categorical terms. He made it very clear
that his goal was to overturn his conviction in order to obtain his freedom,
and not only to overturn the death sentence.
10. Death penalty experts I consulted, including
Henry Schwartzchild of the ACLU Capital Punishment Project, Prof. Bruce
Ledewitz of Duquesne Law School and attorneys at the NAACP Legal Defense Fund,
made the point that successful capital defense strategies emphasized one of two
basic claimsthe clients innocence of the charged capital offense in
the context of a constitutionally infirm trial, or mitigating factors that
would overturn the death sentence.
11. Thus based on these consultations with death penalty experts
and my own limited criminal law experience, I approached the task of finding a
new lead lawyer for Mr. Jamal with the understanding that this lawyer would
need to undertake the defense of an innocent man on death row beginning with a
thorough investigation of the case. Given the political context of Mr.
Jamals casethe fact of his early Black Panther Party membership and
later support to the MOVE organization which permeated his case and led
directly to his death sentencea successful challenge to Mr. Jamals
conviction required a thorough investigation of the case to establish that Mr.
Jamal had not shot Officer Faulkner, that his prosecution was saturated with
gross police and prosecutorial misconduct, while also exposing the many other
due process violations which permeated the trial and sentencing.
12. I assisted Mr. Jamal in meeting attorneys who would
potentially assist his defense, including new lead counsel. Ultimately in
mid-1991, Mr. Jamal retained Leonard Weinglass as lead counsel. Attorney
Weinglass had a reputation as a successful criminal trial lawyer who had
capital case experience. Previously, I had brought Mr. Jamals case to the
attention of Steven Hawkins, then on the staff of the NAACP Legal Defense and
Education Fund, and he initially provided assistance on Mr. Jamals
petitions for rehearing to the United States Supreme Court. I also enlisted
Jonathan Piper, a litigator at the Chicago office of Sonnenschein Nath &
Rosenthal to work pro bono on the case, reviewing the trial record, drafting
legal papers and providing legal and factual research assistance. Attorney
Weinglass brought Daniel Williams onto the team. As lead counsel, Attorney
Weinglass was the ultimate arbiter and final decision-maker on all questions
concerning Mr. Jamals legal case.
13. I did not join Mr. Jamals legal defense team as an
active participant until 1995 prior to the filing of Mr. Jamals
post-conviction petition, although before that I attended a number of defense
team meetings and provided specific assistance to Attorney Weinglass when
requested.
Attorney Weinglass Failure to Pursue Arnold Beverlys
Exculpatory Information and Present Beverlys Confession
14. Although Arnold Beverly first confessed to me in March 1999, I
had met this witness years earlier and he had provided background information
about the shooting of police officer Faulkner. In 1989 Beverly told me that the
killing of P.O. Faulkner was a planned hit by other police officers
and that Mumia Abu-Jamal did not shoot the officer. Beverly was adamant that he
would not identify the person who did shoot the officer, and he was also
adamant that he would never testify and would deny knowing anything if called
as a witness. As explained in more detail below, Attorney Weinglass refused to
pursue Beverly as a possible witness and resisted my efforts to develop the
background information Beverly had supplied. It was only in 1999 that Beverly
ultimately confessed to me that he had shot P.O. Faulkner, agreed that he would
provide testimony, and signed a written confession. However, Attorney Weinglass
refused to proceed with this evidence of Jamals innocence.
15. I first contacted Beverly in mid-1989 after I heard that he
had information relevant to Mr. Jamals defense. I located and interviewed
Mr. Beverly at Pennsylvania State Correctional Institute in Hunlock Creek where
he was a prisoner. In that interview Arnold Beverly told me that he had been
present at the scene of the shooting of P.O. Faulkner and that Mumia Abu-Jamal
had not shot Officer Faulkner. Beverly further stated that there was a plan by
Philadelphia police officers to kill Daniel Faulkner and that Officer Faulkner
was interfering with the police corruption involving drugs, prostitution, etc.
in the Center City. Among other bits of information, Beverly said that a black
officer, Boston (which I thought was the police officers
nickname), was involved in the arrangements, that some police officers were on
the scene to ensure that the hit went off as planned. He also told
me that Cynthia White, the main prosecution witness against Mr. Jamal,
turned tricks for police. At that time Beverly denied that he had
in fact shot Officer Faulkner, and he refused to identify the shooter. Arnold
Beverly was emphatic that he would never identify the shooter and made it
equally clear that he would not testify about anything he knew about the
shooting of P.O. Faulkner even if under subpoena.
16. Shortly after Attorney Weinglass was retained, I advised him
of what Arnold Beverly had told me. Attorney Weinglass bluntly told me he was
not interested in pursuing this informationthat it was too hot to
handleand did not want to discuss it further. Attorney Weinglass
continued to refuse to discuss, let alone investigate, Beverlys account
through the 1995 post-conviction hearing, even though Jonathan Pipers
background investigation confirmed that the Federal Bureau of Investigation had
been investigating widespread and high-reaching police involvement in drug and
vice rackets, including prostitution, in Philadelphias Center City at the
time of P.O. Faulkners shooting. This information not only supported
Arnold Beverlys account but also shed light on how police could easily
coerce the prostitute Cynthia White, the main prosecution witness, to falsely
identify Mr. Jamal as the shooter of P.O. Faulkner.
17. The only reference to the information provided by Beverly
which Attorney Weinglass would agree to make in the 1995 post-conviction filing
was to include the simple fact of this police corruption into footnotes to the
Memorandum of Law. Additionally, Attorney Weinglass acquiesced to including a
demand for information as to whether police officer Faulkner was an informant
or target of a criminal investigation in Mr. Jamals Motion for Discovery.
As explained below, Beverlys account was supported in this regard by
eyewitness William Singletary, who testified that police officers including
white shirts (i.e., police supervisors) were at the scene
immediately after the shooting. However, Attorney Weinglass was opposed to
calling Singletary, attempted to prevent him from testifying and when he did
take the stand, Attorney Weinglass undermined his testimony, including as a
Brady witness, by asserting that Singletarys recollections of what
happened were inaccurate.
18. Additionally, Attorney Weinglass was adamant that Inspector
Alfonzo Giordanoalready known as having been convicted on federal
corruption charges in 1986not be called as a witness at the PCRA
proceedings. Giordano was the ranking officer at the scene after the shooting,
the central prosecution witness against Mr. Jamal at his preliminary hearing
and bail hearing claiming that Jamal had confessed at the scene while lying in
the back of a police wagon (a confession no other officer heard). It was
Giordano who also put forward the claim that Jamals gun, the putative
murder weapon, was on the street and it was Giordano who arranged the supposed
identification of Jamal at the scene by cab driver Robert Chobert.
We also knew that Giordano had worked closely with Frank Rizzo when he was
Philadelphia police chief, and was involved in the police political
surveillance and attacks on leftists and the Black Panther Party.
19. At the close of the post-conviction hearing in September 1995,
Attorney Weinglass requested I submit a statement to the PCRA court setting
forth the investigation leads we were pursuing, including the testimony of
William Cook and the need to test the ballistics evidence at an independent
laboratory. It became clear that Attorney Weinglass was simply posturing. For
instance, there is the question of William Cooks non-appearance to
testify, discussed more fully below. Also, Attorney Weinglass was furious that
in the closing statements I made to the PCRA court I raised Inspector
Giordanos role in the false prosecution and conviction of Mr. Jamal.
Moreover, when I tried to get authorization and assistance from Attorney
Weinglass to continue our investigation and hire the necessary investigators
after the conclusion of the 1995 PCRA hearing, Attorney Weinglass vetoed
my concrete proposals.
20. Despite his veto against continuing investigation, in early
October 1995 Attorney Weinglass announced at a large public meeting in San
Francisco that there were rumors that Officer Faulkner was an FBI informant and
had been set up to be killed by fellow officers. Since Attorney Weinglass
presented this information publicly without the slightest intention of pursuing
it through investigation or seriously presenting it in court, he and I had a
sharp argument. At the conclusion, Attorney Weinglass finally agreed to
undertake some of the investigation I proposed and provide the funds for the
investigators. However, Attorney Weinglass still would not agree to investigate
Beverlys account.
21. Notwithstanding Attorney Weinglass refusal to directly
pursue the information provided by Beverly, I was alert for information and
leads which were consistent with Beverlys overall account and pressed
forward with investigation. Over time, to the extent that Attorney Weinglass
grudgingly acquiesced in conducting investigation, more and more information
came to light which confirmed aspects of Beverlys account that the murder
of police officer Faulkner was a hit planned by other police
officers. As this corroborating information came to light, it was brought to
Attorney Weinglass attention.
22. For instance, the existence of a police officer named
Boston was confirmed when reviewing the records of a 1979 federal
law suit concerning police brutality in Philadelphia. In late 1996, an
eyewitness named Marcus Cannon came forward with the information that he saw
two white men who appeared to be undercover police officers present on the
scene during P.O. Faulkners shooting.
23. Significant corroboration of aspects of
Beverlys background account also came in connection with a 1997
post-conviction remand hearing centering on Pamela Jenkins, a prostitute who
had been an informant for the FBI in the infamous 39th District police
corruption scandal. Jenkins testified that in 1982, while a prostitute and
lover of P.O. Thomas Ryan, she learned that a black police officer named Boston
and other police officers, including Sarge and Det. Richard Ryan,
were present during the shooting of Officer Faulkner. Consistent with
Beverlys account, Jenkins also testified that Cynthia White was a police
informant and performed sexual favors for police officers.
24. Lawrence Boston was called as a witness at the 1997
post-conviction remand hearing, and confirmed that he had been an officer in
the 6th District where P.O. Faulkner worked and knew Faulkner very
well. However, Boston would not provide a clear answer where he was at the time
of Faulkners shooting, but strangely responded that he should have
been asleep. Although Attorney Weinglass knew that Beverly had named
Boston as involved in the plan to kill Officer Faulkner, Attorney Weinglass
gave this opening a pass, failing to press Boston to answer the question of his
whereabouts. Boston did confirm that on his beat he frequently interacted with
prostitutes including Cynthia White, known to him as Lucky, and
that he had heard that at the time of Mr. Jamals trial White was being
given extensive favors, including being put up in a condominium in New Jersey,
apparently by Philadelphia police.
25. Significantly, in 1998 I interviewed Donald Hersing, the
FBIs confidential source during its 1981-82 investigation of Center City
police corruption. Mr. Hersing confirmed that corrupt police were very
concerned about possible police informants in the winter of 1981-82, and that
the corruption included James Carlini, head of Homicide; John DeBenedetto, head
of the Central Division in which P.O. Faulkner worked; as well as Inspector
Alfonzo Giordano, the senior officer at the scene after the shooting.
DeBenedetto and other Central Division police officers were convicted in 1983;
James Carlini was named in the federal indictment as an unindicted
co-conspirator. Hersing states that he reported all his conversations and
associations, including his information on Alfonzo Giordano, to the FBI agents
who debriefed him regularly and frequently. In May 1999 Donald Hersing provided
me with a sworn statement setting forth this information.
26. Continued investigation of Alfonzo Giordano disclosed that he
had been in charge of the Stake Out Unit of the Philadelphia police from
1968-1970 when they were the tactical force used against the Philadelphia Black
Panther Party. He also had a supervisory role in the year-long police barricade
of the MOVE organizations Powelton Village house in 1977-78 which ended
with a police raid and the shooting death of Stake Out officer James Ramp for
which nine MOVE members were convicted. Mumia Abu-Jamal was prominent as a
journalist sympathetic to MOVE from the time of the police assault through the
trial of the MOVE members and was personally known to then Mayor Frank Rizzo,
Civil Defense Unit head George Fencl and presumptively to Giordano himself. In
any event, there can be no serious question that once Giordano learned the
identity of Jamal at the scene, he instantly would have been aware of who Jamal
was, including his political background and very public position in defense of
the MOVE organization.
27. Personnel records on Alfonzo Giordano were subsequently
located, and they disclosed information supporting Donald Hersings report
that Giordanos involvement in police corruption was known to the FBI and
Philadelphia police officials in early 1982. The personnel records show that
Giordano was transferred from the Command Inspectors Bureau (CIB) into the
personnel division in May 1982 and resigned from the police force the first
working day after Mumia Abu-Jamals 1982 trial ended. The fact that the
prosecution did not put Giordano on the witness stand during the trial to
retail his false claim that Jamal confessed at the scene, despite Judge
Sabos ruling that this testimony was admissible, is also powerful
indication that the prosecution knew of Giordanos involvement in
corruption and thought it would be too risky to present him at Mr. Jamals
trial. It is notable that Giordano was not indicted until 1986 on charges based
on his receipt of tens of thousands of dollars in illegal payoffs during the
1979-80 time period.
28. My efforts in reviewing the record surrounding the physical
and ballistics evidence, including consultation with experts, revealed that the
prosecution scenario of the shooting was physically impossible and not
supported even by the prosecutions own evidence. The prosecutions
scenario, adopted by the post-conviction court and the Pennsylvania Supreme
Court, is that Jamal supposedly ran from the parking lot, shot Faulkner at
close range in the back and then stood directly over Faulkner who had fallen on
his back. Jamal then purportedly shot at Faulkner three or four times, with a
bullet hitting Faulkner in the head under the eye. According to the
prosecution, Jamal was shot by Faulkner as the officer fell. Aside from Jamal
and Faulkner, the only other person on the scene according to the prosecution
was William Cook, Jamals brother. However, as set forth below, this
scenario is contrary to the available physical and ballistics evidence. For
example, the location of bullets and fragments recovered at the scene, the
absence of divots in the sidewalk, as well as the location of sidewalk blood
stains, refute the overall prosecution scenario, including the claim that P.O.
Faulkner was shot several times while he lay on the sidewalk with his head
pointing east while the shooter faced east. The presence of the copper bullet
jacket at the scene is inconsistent with the bullets supposedly in Jamals
and Faulkners guns, pointing to a different gun from theirs being fired.
Moreover, the officer who purportedly found Jamals gun and turned it in
to the ballistics department, Stake Out officer James Forbes, testified at
trial that the bullet cartridges in Jamals gun were of a different make
than that recorded in the ballistics report. Similarly, the location of the
bullet in the door frame of 1234 Locust Street as well as the description of
this bullet in the ballistics report suggests that a second police weapon was
fired.
29. Moreover, information contained in the Medical Examiners
report which I discovered just prior to the filing of the post-conviction
petition raises substantial questions. For instance, there is no reasonable
explanation as to why the Medical Examiner recorded that Faulkner was shot with
a .44 caliber while the police maintained it was a .38 caliber bullet.
Additionally a sizable bullet fragment was found in Faulkners head wound
by the Medical Examiner but was not turned over to ballistics for examination
and is missing. Moreover, although the Medical Examiners normal
procedures are to x-ray bodies to locate all bullets or fragments, no x-rays of
Faulkners body have yet been located or produced, raising questions
concerning the caliber and number of bullets in Officer Faulkners body
and raising issues of suppression of evidence.
30. There was also ample evidence that Jamals gun had not
been fired that night and that police knew this. To begin with, no lead or
gunshot residue testing was reportedly performed on Jamals hand, or if
such testing was done, the results were suppressed. Nor is there any police
report as to whether Jamals gun was warm or smelled of burnt gunpowder
from being recently fired. Moreover, the police ballistics report states that
the bullet taken from Faulkners head wound is extremely mutilated
and distorted...destroying the major portion of the rifling markings such
that even its general characteristics are indeterminable. The
ballistics report, which was unsigned, concluded that a comparative examination
of the evidence bullet against test-fired bullets has shown insufficient
characteristic markings to permit a positive comparison. However, a
photograph taken of this bullet discloses a largely intact lead bullet with
pronounced filing impressions indicating that a comparative analysis with
original exemplar bullets fired from it could have resulted in a determination
as to whether the bullet was fired from Jamals Charter Arms revolver.
Additionally the relative width of the lands to the grooves on the bullet
reportedly taken from Faulkners head wound is the opposite of all but a
few percent of the Charter Arms revolvers produced. Thus the prosecutions
ballistics evidence (or lack thereof) itself raises a strong likelihood that
the bullet in evidence from Faulkners head wound was not fired from
Jamals Charter Arms revolver, and that police ballistics tests were
inconclusive because properly and competently performed ballistics
would exclude Jamals gun as the murder weapon.
31. The physical evidence is also contrary to the
prosecutions theory that Mumia Abu-Jamal was shot by P.O. Faulkner as the
officer fell to the ground. The trajectory of the wounds Jamal
sufferedtraveling down through his chest from his lung and, to his
livercould not have been inflicted if Jamal was shot from below as the
prosecution claimed. P.O. Faulkners alleged weapon, purportedly used to
shoot Jamal, was not in the condition one would expect from a hunting
enthusiast and ambitious officer about to take the detectives
examination. According to the police ballistics report, this gun contained
powder fouling, dirt and lint in the chambers and it would not cock as designed
in single action because of oversized rubber grips. The gun also had a bent
hammer spur. All of these irregularities posed the question as to whether this
was in fact the weapon Officer Faulkner was carrying as a service revolver on
December 9.
32. Thus, by early 1999, there was a substantial body of
accumulated evidence which not only further confirmed Mumia Abu-Jamals
innocence but was consistent with Beverlys overall background
accountand which could not be otherwise explained. Despite Attorney
Weinglass longstanding opposition, I located an address for Arnold
Beverly and in March 1999 met with him. Beverly confirmed his prior account
that Mr. Jamal had not shot Faulkner. However, for the first time Beverly
stated he was also shot and wounded, and he bled at the scene. He also told me
that he wore a green army jacket that night.
33. In a second interview I conducted a few days later in March
1999 Arnold Beverly confessed that he himself shot P.O. Faulkner. He told me
that someone else fired the first shot that hit P.O. Faulkner, and then Beverly
ran across the street and shot the officer in the face. He stated that Jamal
arrived later and did not shoot anyone. According to Beverly, Mr. Jamal was
shot by a police officer other than Faulkner.
34. Within hours of hearing Beverlys confession I apprised
Attorney Weinglass that Arnold Beverly had confessed to shooting and killing
police Officer Faulkner. Attorney Weinglass response to me was to dismiss
this evidence out of hand and offered the excuse that presenting this
confession would risk losing credibility with a federal court
judge. A new level of battle began as Jonathan Piper and I attempted to
convince Attorney Weinglass to submit this critical new evidence of Mumia
Abu-Jamals innocence to court.
35. Upon hearing of Beverlys confession, Attorney Weinglass
insisted that Beverly be immediately subjected to a polygraph examination, but
he chose an examiner, Earl Rawlings, who was not qualified and who performed an
incompetent examination. Even that examiner concluded that Beverly was being
truthful when he said that he was present at the scene of the shooting and that
Mr. Jamal was not the shooter. Subsequently I had Beverly examined by expert
polygrapher Charles Honts, whom Attorney Weinglass had flown in during the 1995
post-conviction hearing. Honts reported to me that Beverly confessed to him
during the polygraph examination and that the polygraph test results supported
the truthfulness of Arnold Beverlys confession that heand not Mumia
Abu-Jamal shot police officer Faulkner. I obtained a sworn statement from
Dr. Honts.
36. As set forth in more detail below, during the spring of 1999,
Jonathan Piper and I intensified the ongoing investigation, with the assistance
of the case investigators as well as bringing former FBI agents in to assist in
exploring and developing the evidence. Our work included reviewing the trial
and post-conviction record for anomalies that were consistent with
Beverlys account. This generated further substantial corroboration of
Beverlys confession, and all this information was systematically brought
to the attention of Attorney Weinglass.
37. For instance, Beverlys statement that he was wearing a
green camouflage army jacket that night was extremely significant because the
record clearly established that at least four witnessesStake Out officer
Forbes who was reportedly the first officer on the scene, officer Stephen
Trombetta, prosecution civilian witness Michael Scanlan, as well as William
Singletary describe someone at the scene in a green army jacket.
Additionally trial witness Magilton told one of our investigators that the
person he saw run from the parking lot was wearing a green army jacket.
However, the evidence is clear that neither Mr. Jamal nor Mr. Cook wore a green
army jacket: Jamal had a red quilted ski jacket with a wide vertical blue strip
on either side of the front, Cook wore a blue Nehru-style jacket with brass
buttons. The description of someone on the scene wearing a green army jacket,
generally identified as the shooter, comes from so many different people, that
there can be no question that there was at least one person on the scene
wearing a green army jacket. Beverlys description of what he was
wearinga green jacketwas thus corroborated by information already
in the record from several independent sources.
38. Beverlys testimony that Jamal was shot by a police
officer other than Officer Faulkner was supported by a Medical Examiners
record from 9:00 am on December 9, 1981 (some five hours after the shooting)
stating that Sgt. Westermann of Homicide told a Medical Examiner s
investigator that Jamal was shot by arriving police reinforcements.
In fact, that report in the Medical Examiners log is the only explanation
given in any of the police files as to how Jamal was shot, and thus
presumptively reflects what police officers at the time actually were saying
had happened. The circumstances of this report were the subject of an in camera
hearing during the 1982 trial from which Jamal was excluded.
39. We found corroboration for Beverlys claim that Faulkner
fell to his knee in the autopsy report which stated that the skin on
Faulkners knee was denuded; moreover, his pants were torn at the knee.
Beverly said he was carrying a .22 caliber handgun and William Singletary had
testified that a small caliber gun, a .22 or .25 was used in the shooting of
Faulkner. Contradictions in the statements and testimony of P.O. Carolyn Chinn
demonstrated that it was her impression that a black suspect had been taken
from the scene before she arrived and participated in handcuffing Jamal. This
was consistent with Beverlys claim that he left the scene with help from
police officers.
40. Additionally, we investigated the possibility that Faulkner
was an FBI informant or that his shooting was in some fashion connected with
the federal investigations of Philadelphia police corruption. Officer
Faulkners 612 beat covered a Center City area where there was widespread
prostitution as well as after-hours clubs and gay bars from which payoff money
was extorted by the Central Division police. In addition to the information
from Donald Hersing that corrupt police were very aware of the federal
investigations and worried about informants, Jonathan Piper spoke with the lead
federal prosecutor who prosecuted DeBenedetto for corruption, and he confirmed
that Philadelphia police officers were sources in the investigation, including
one source who had a brother who was also a police officer. This was a
description fitting Officer Faulkner, but the former prosecutor said he could
not say whether or not Faulkner was an informant.
41. During this period we also learned that George Sherwood, an
FBI agent who oversaw the FBIs organized crime squad in Philadelphia and
was involved in the investigation Hersing was an informant for, had subpoenaed
Faulkners army records in 1982. Former FBI agents, then working as
investigators on the case, advised me that the most plausible explanation for
this was that Faulkner was an informant, confidential source or an
investigation target. Sherwood advised our investigator that unless the FBI had
an investigative interest in a matter the FBI would not have assisted another
agency (including the District Attorney or the U.S. Attorney) with the
retrieval of Officer Faulkners military records. FBI confidential source,
Donald Hersing, reported that George Sherwood was one of the FBI agents working
on the Center City police corruption investigation in 1981-82. FBI records on
Daniel Faulkner disclosed an FBI-PH airtel to the Director dated 12/30/81 that
no written summary of the case was being prepared because of the ongoing
criminal investigation and pending legal litigation, which former FBI agents
advised me was highly unusual. The case record also disclosed that P.O.
Faulkner owned a Topcon camera and used it the night he was killed
to photograph at least officer Gary Wakshul in the precinct lock-key
area. Homicide Detective William Thomas had this camera in his possession
when he questioned Wakshul and others about the camera. I later learned this
was a very expensive camera model which was often used by the FBI during that
period. Inexplicably, there is no information as to where the camera was found
since there are no property receipts or records of the camera or any film
contained in the camera.
42. Our investigation also revealed that it was far from unheard
of that police officers or witnesses against police would be the subject of
hits in Philadelphia in the 1980s. Bertram Schlein, a witness who
testified against Central Division chief John DeBenedetto, was murdered in
1983. A former police officer and reported associate of Giordano, Kenneth
Schwartz, was reportedly a suspect in Schleins death. During the
prosecution of Five Squad narcotics officers for corruption in the
1980-84 time period, a federal prosecutor alleged that Philadelphia police
officers had plotted to kill a witness in a federal tax-evasion case against an
officer. In that same prosecution, a witness testified that he feared for his
life after he was told that a Five Squad officer who was
cooperating with the FBI had been killed in his home. Other police officers
were killed in the early 1980s under circumstances suggesting assassination.
The last Philadelphia officer to have been killed before P.O. Faulkner was
James Mason, who was shot by a sniper in May 1981. The next officer to be
murdered after Daniel Faulkner was Thomas Trench, who was shot at close range
in his police car with the window open in May 1985, likely by someone he knew.
Recently, former police officer turned mob hit man, Ronald Previte, has been
testifying as a government informant in a case dealing with gangland killings.
Previte boasted that he learned more about being a crook during the
ten years he spent with the Philadelphia Police Department than any other time
in his life.
43. Jonathan Piper carried out a detailed review of the police
radio tapes, which showed that police at the scene had ample opportunity to
tamper with, or plant, physical and ballistic evidence. The police tapes also
were contrary to the prosecution claim, adopted by the Pennsylvania courts,
that police reinforcements found Jamal, Faulkner, and their guns on the
sidewalk within less than a minute of the shooting. It was fully fourteen
minutes before the officers at the scene reported having found a suspect with a
weapon. The contemporaneous police radio flashes reported without
contradiction that the suspect(s) had fled the scene with Officer
Faulkners gun. In his police report, Stake Out officer Forbes claimed to
have retrieved two guns from the sidewalk just after he arrived at the scene,
but no other witnesspolice or civiliansaw him do so. Even
Forbes partner, Shoemaker, reported that he did not see Forbes pick up
any guns (and Shoemaker claimed he saw only one gun on the sidewalk). Witness
Arnold Magilton stated in a police interview report that police at the scene
were searching for a gun. Another eyewitness, Dessie Hightower, reported that
Officer Faulkners gun was in his holster as police removed him from the
scene. Moreover, contrary to police procedure, Forbes did not turn the guns
over to the mobile crime unit officers at the scene but instead apparently took
them with him to the police headquarters and did not deliver them to the police
lab until some two hours later.
44. The accounts given by Forbes and Shoemaker about their arrival
at the scene were dubious in other respects as well. Although Forbes claimed to
have been one of the first two officers on the scene and to have played a
prominent role in arresting William Cook and retrieving the guns, several
arriving police officers reported that they did not even see Forbes at the
scene when they arrived. Shoemakers own actions at the scene are also
questionable. While Shoemaker claimed he was assisting Officer Faulkner, P.O.
John Hefter pointedly denied that Shoemaker was helping Faulkner and instead
reported that Shoemaker was merely standing over the fallen
officer. Moreover, Forbes and Shoemaker were Stake Out officers, part of the
elite police tactical unit and presumptively knowledgeable of and hostile
toward Jamal, the reporter known for his sympathetic coverage of MOVE,
particularly in the aftermath of the trial of MOVE members for the murder of
fellow Stake Out officer James Ramp who had been shot in police crossfire
during the 1978 police siege of MOVEs home in Powelton Village.
45. Additionally, the police officer responsible for
securing the crime scene, Gerald Lynch, was driving squad car 93
which was implicated in the police corruption racket. In a 1985 federal police
corruption trial, a Central City police officer testified that in 1981 the 93
squad car was responsible for collecting pay-off money at a Center City bar.
Recently Mr. Jamals new legal team obtained an affidavit from Linn
Washington indicating that in reality the crime scene was not secured at all
when he visited it just a few hours after the shooting. The corruption
prosecutions also revealed that uniformed officers involved in graft performed
routine club checks of Center City bars and after-hours clubs to
determine the number of patrons present in order to gauge the amount of pay-off
money that should be demanded from each club. Several of the officers who were
at the scene on December 9 reported that they were involved in making these
club checks that night.
46. The new piece of information that Beverly bled at the scene
thus posed new opportunities for DNA testing of the physical evidence, which if
confirmed, would conclusively demonstrate the falsity of the prosecutions
scenario. For example, the bullet removed from the doorway of 1234 Locust
Street should be tested for blood and DNA because, given the trajectory, this
could well be the bullet that wounded Arnold Beverly. One puzzle in the case
has been the presence of type 0 blood at the scene according to the
criminalists report. This pointed to the presence of another person at
the scene because Mr. Jamal and Mr. Cook, as well as P.O. Faulkner (based on
the Faulkner autopsy report and criminalistics report) all had type A blood.
47. In sum, there was substantial information
corroborating Beverlys confession throughout the record of this case,
ranging from the testimony of other witnesses to the physical evidence. At the
same time there was no credible evidence in the case refuting or disproving his
claims of what took place. Yet despite the sworn statements and other
additional information we had developed supporting Beverlys account, all
of which was explained in detail to Attorney Weinglass as well as co-counsel
Daniel Williams, they refused to present a supplemental post-conviction
petition containing the confession by Beverly, to say nothing of renewed
motions for discovery, ballistic and DNA testing of the physical evidence. The
more information that was developed which was consistent with Arnold
Beverlys statement, the more adamant Attorney Weinglass became that he
would not present a supplemental post-conviction petition based on this
witness.
48. In arguing against the presentation of Beverlys
confession, Attorney Weinglass insisted that Beverlys account was
incredible and implausible. Attorney Weinglass was adamant and would not engage
in rational discussion of how Beverlys account squared with any of the
supporting evidence. Co-counsel Williams argued that if accepted,
Beverlys account would mean that police had knowingly framed an innocent
man, and Williams asserted that it was unbelievable that police or
the prosecution would do that. These statements flew in the face of reality,
borne out in testimony by police officers and prosecutors in such notorious
cases as the hundreds of Philadelphia 39thDistrict cases and the Illinois
murder conviction of Rolando Cruz. In the course of the investigation in Mumia
Abu-Jamals case, I had myself conducted a lengthy interview with former
police officer John Baird, imprisoned for massive falsification of cases in the
39th District. I shared with my then co-counsel many graphic examples, courtesy
of John Baird, of the fabrication of evidence and falsification of police
reports, search warrants and court testimony convicting innocent people.
Moreover, Mr. Jamals prosecution fit the pattern of numerous examples of
the government knowingly prosecuting the innocent. In the guise of law
enforcement, the FBIs COINTELPRO program against the Black Panther Party
was an extermination program leading to the death or prosecution of numerous
radical black leaders based on their political views and activities. Documents
obtained under Freedom of Information prove that Jamal was targeted by
COINTELPRO from the time he was 15 years old based solely on his First
Amendment protected activities as a Black Panther Party spokesman and writer.
The Philadelphia police and mayors hostility to MOVE culminated in a
massive police military action killing defenseless men, women and children. The
California court system finally released former Black Panther Geronimo Pratt in
1997 after 27 years of wrongful imprisonment for a crime which FBI wiretap logs
proved he did not commit. The list could be continued.
49. Attorney Weinglass deceived Mumia Abu-Jamal, manipulating,
cajoling and misleading his death row client about the legal significance of
Beverlys confession. Attorney Weinglass not only failed to assist in the
process of evaluating Beverlys account, but rather obstructed Jonathan
Pipers and my efforts to do so. An unauthorized book by Daniel Williams,
former counsel for Mumia Abu-Jarnal, confirms that Attorney Weinglass
intentionally undermined this witness in order to prevent Mr. Jamal from
presenting his testimony: Concerned that Mumia would insist upon our
presenting this evidence, Len sought out ways to push this witness onto the
trash heap without further rupturing the defense team. (Executing
Justice: An Inside Account of the Case of Mumia Abu-Jamal, p. 329 (emphasis
added).) Attorney Weinglass threatened that he would end his legal
representation of Mr. Jamal altogether rather than allow the evidence provided
by Arnold Beverly to be presented in court.
50. While Attorney Weinglass refused to present the testimony of
Arnold Beverly in a supplemental post-conviction petition or in the federal
habeas corpus petition, he and Attorney Daniel Williams leaked
aspects of Beverlys account publicly. All discussions of the Beverly
confession that Jonathan Piper and I participated in were limited to the
defense team and consulting attorneys or legal assistants and investigators
working directly under my supervision. In the spring of 1999, Daniel Williams
argued that rather than present Arnold Beverlys testimony through a
second post-conviction petition, his account should be leaked to
the press. Shortly thereafter, a reporter hostile to Jamals defense wrote
in Vanity Fair magazine (August 1999) that the legal team
continues to suggest new possibilities of how Faulkner was killed,
including one recently made by Weinglass that the officer may have been set up
for execution by members of his own department because of suspicion that he was
an FBI informant in an investigation of police corruption. He offers no
concrete proof for this theoryjust one more loop-the-loop of conspiracy
after another. Attorney Williams sworn statement in an April 10,
2001 affidavit filed in Mumia Abu-Jamal vs. St. Martins Press and
Attorney Daniel R. Williams that nothing in Executing
Justice discusses matters that are confidential... even the disagreements
among the lawyers were known to many pro-Mumia supporters, including left-wing
journalists is Williams admission that he and/or Attorney Weinglass
took confidential attorney-client matters outside the legal team. To disclose
this sensitive information publicly without seriously pursuing its
investigation could only discredit this powerful exculpatory evidence and
prejudice its ultimate review by a court of law. These leaks also apprised the
prosecution and police of inside defense camp information, thereby jeopardizing
the safety of potential witnesses and risking the destruction of evidence
relevant to the leaked claims.
51. Yet the main damage caused by Attorney Williams book is
to openly discredit, misrepresent and sabotage the evidence of Mr. Jamals
innocence, in flagrant disregard of the truth, the record, and Mr. Jamals
interests. Williams openly discredits Beverlys account as
absurd and goes on to falsely assert that to advance Beverlys
account would constitute the propagation of a lie. Yet it is
Attorney Williams himself, along with Attorney Weinglass, who have propagated a
falsehood by first suppressing Beverlys confession and other evidence of
Jamals innocence, then misrepresenting the substance of Beverlys
testimony, the record support for it, and falsely claiming that William Cook
had disappeared. Attorney Williams book has borne its
intended fruit as it has become the prosecutions Exhibit No.
1 in its efforts to defeat Jamals claims of innocence.
Attorney Weinglass Failure to Present the Sworn Statement of
William Cook
52. In May 1999, I obtained William Cooks
sworn statement that Mumia Abu-Jamal did not shoot Officer Faulkner, and that
Kenneth Freeman, Cooks business partner, was in the vehicle with him that
night, was armed and participated in a plan to kill Faulkner. When Attorney
Weinglass refused to present in court Arnold Beverlys confession in 1999,
he also refused to present the sworn statement of William Cook exonerating
Mumia Abu-Jamal and confirming that there was a plan to kill Police Officer
Faulkner.
53. For obvious reasons it was critical to obtain
the testimony of Mumia Abu-Jamals brother, William Cook, as to what he
witnessed on the night of December 9, 1981. According to the prosecution, Cook
was the only other person besides Jamal and Faulkner who was on the scene.
Although it was Attorney Weinglass stated position in 1995 that William
Cook would be an important witness in the 1995 PCRA proceedings, I have no
knowledge of what, if any, attempts Attorney Weinglass made to find William
Cook to have him available to testify at that hearing.
54. Cooks importance was underscored in 1995 with the PCRA
testimony of Arnold Howard. In an affidavit submitted to court, Howard stated
that Freeman told him that he was a passenger in William Cooks car and
had been on the scene the night of the shooting. Additionally Howard testified
that he had given his drivers license application to Freeman, and
prosecution witness Det. Edward DAmato disclosed for the first time that
Howards license was found on Faulkner after he was killed. According to
Howard, he and Freeman were brought into police headquarters that night and his
and Howards hands were tested for gun powder residue. Freeman was
reportedly put into a line-up and identified by a woman. We also learned that
in February 1982 Freeman was arrested in his home by Stake Out officer Forbes
and Detective Richard Ryan who recovered a .22 caliber handgun and explosives.
In May 1985, the night after the police bombing of the MOVE Osage Avenue house,
Kenneth Freeman, 32 years old, died of a heart attack under suspicious
circumstances.
55. In September 1995, after the close of the evidentiary PCRA
hearing but prior to the closing arguments, I interviewed Mr. Jamals
brother, William Cook, when he unexpectedly showed up in Pittsburgh at a
federal court hearing on Mr. Jamals civil suit against the Department of
Corrections. While Mr. Cook stated that he was fearful of the consequences, he
indicated his willingness to testify and wanted to meet again with Attorney
Weinglass and me. In an attempt to reopen the post-conviction hearing so that
Mr. Cook could testify, at Attorney Weinglass request, I submitted a
statement as to what I believed Mr. Cook would say if he testified that
Mr. Jamal did not shoot police officer Faulkner, that there was another black
male occupant in the car with him and that another individual, not Mr. Jamal
and not Mr. Cook, shot the officer. There was agreement of defense counsel that
Mr. Cook would be presented to testify before the conclusion of the
post-conviction proceedings. However Attorney Weinglass precluded me from
attending his subsequent meeting with William Cook. In the end, William Cook
did not appear in court to testify. Attorney Weinglass advised me and
represented to the court that Mr. Cook was unavailable because he was fearful
of being arrested on outstanding bench warrants if he appeared to testify. This
was inconsistent with my own impressions of Cook and his willingness to be a
witness. Based on my prior conversation with William Cook, statements by
Cooks attorney Daniel Alva and Attorney Weinglass behavior, it was
my impression that Attorney Weinglass did not want to call William Cook as a
witness.
56. In February 1999, the defense was able to re-establish contact
with Mr. Jamals brother William Cook and Attorney Weinglass and I met
with him to discuss obtaining a sworn statement from him and his agreement to
testify in future court proceedings. I subsequently met with Mr. Cook and he
identified the passenger in his Volkswagen as his business partner Kenneth
Freeman. William Cook reconfirmed that neither his brother, Mumia Abu-Jamal,
nor he shot P.O. Faulkner. According to Mr. Cook, Mr. Freeman told him
afterwards that there was a plan to kill P.O. Faulkner, that Freeman was part
of that plan, that Freeman was armed that night and participated in the
shooting. Cook also disclosed to me that P.O. Robert Shoemaker, reportedly one
of the first officers at the scene after the shooting, was known to Cook and
frequently hung out, smoking weed, at the vending stand which
Freeman and Cook ran in downtown Philadelphia. Mr. Cook also agreed that he
would come forward and provide his account of what had happened that night in a
sworn statement and would testify in court.
57. In May 1999, Attorney Weinglass and I met with William Cook.
At this meeting Attorney Weinglass hostilely questioned Mr. Cook and warned him
that he could be arrested on outstanding criminal charges. In this same
meeting, Attorney Weinglass indicated his intention to distance himself from
this new evidence and announced that when this evidence was filed in court, he
would not be present and would instead make a trip out of the country. Cook
nonetheless confirmed his account of the shooting and signed a sworn statement
that his brother, Mumia Abu-Jamal, did not shoot Officer Faulkner.
58. Attorney Weinglass told me that while he refused to present
Beverly, he would present the testimony of William Cook in federal court. Yet
he failed to do so. Moreover, in the federal habeas corpus petition filed in
the federal district court in October 1999, Attorney Weinglass falsely asserts
that since 1995 Cook has again disappeared. This is a false
statement because in fact Attorney Weinglass met with William Cook between
February and May 1999. I was in contact with William Cook until I left the
case, and Attorney Weinglass had the information on how to locate him. Attorney
Weinglass also had a copy of Mr. Cooks signed statement.
Attorney Weinglass Undermined the Exculpatory Testimony of William
Singletary
59. Attorney Weinglass refusal to present critical evidence
of Mr. Jamals innocence from Arnold Beverly and William Cook was
consistent with his strong resistance to presenting the exculpatory testimony
of William Singletary. Weinglass called Singletary to the witness stand in the
1995 PCRA hearing, openly discrediting his testimony in advance of any
questioning.
60. I first learned of Mr. Singletarys
existence in the summer of 1990, after Mr. Jamals direct appeal was
denied by the Pennsylvania Supreme Court and at a time when there was no lawyer
representing him for post-conviction relief. Hearing that this witness might
have exculpatory information, I contacted Marilyn Gelb, Mr. Jamals
attorney during the state direct appeal, and arranged and attended a meeting
between Ms. Gelb and Mr. Singletary, where Ms. Gelb took Singletarys
deposition. He testified that he witnessed the shooting of P.O. Faulkner, that
Mr. Jamal did not shoot the officer, that the shooter was a black male wearing
a green army coatnot Mr. Jamal or Mr. Cookand that the shooter fled
the scene. He also testified that police officers appeared on the scene
immediately after the shooting and that the prosecutions central witness,
Cynthia White, was not physically present there on the corner at the time of
the shooting, but had walked around the corner and down 13th Street.
61. I transmitted a copy of the Singletary deposition to Attorney
Weinglass in May 1991, apprising him that this case involved substantial issues
of actual innocence and prosecutorial/police misconduct, in addition to the
many other procedural constitutional infirmities. The mere fact that William
Singletary provided an exculpatory account of the shooting would make him a
critical witness to present and develop. His testimony that police officers
destroyed his accurate police statements and threatened him to make him change
his account also pointed to the depth of police misconduct in the case and the
need for a thorough investigation to unravel the evidence police had tampered
with.
62. When I attended a meeting with Attorney Weinglass and members
of his legal team in May 1994, at which I pressed to find out what was being
done to pursue Mr. Singletarys eyewitness testimony, I discovered that
Attorney Weinglass had not pursued this evidence, and had not even located or
interviewed Mr. Singletary. In fact, the discussion revealed that he had not
even disclosed the existence of Mr. Singletarys account to his associate
Daniel Williams, who was preparing an initial draft of the post-conviction
papers. That draft did not include any evidentiary claims concerning police or
prosecutorial misconduct. At that meeting a decision was made that the
Singletary account was important to pursue. Thereafter Attorney Weinglass made
a minimal effort to locate Mr. Singletary, who had moved from his former
address.
63. Mr. Singletarys crucial importance was underscored in
April 1995 when the United States Supreme Court released its decision in Kyles
v. Whitley, 115 S.Ct. 1555 (1995) which confirmed the prosecutions
Brady duty to divulge any information undermining the reliability of the
police investigation. Ultimately, with the agreement of all defense counsel,
the falsification of Mr. Singletarys exculpatory witness statement became
the first claim in Mr. Jamals post-conviction petition filed in June
1995, followed by other instances of prosecutorial and police misconduct. At
the time of filing Attorney Williams not only agreed that including claims
based on Singletarys testimony was important but favored attaching
Singletarys deposition to our post-conviction petition.
64. Nonetheless, during the post-conviction hearings in July and
August 1995, there were repeated arguments within the defense team in which
Attorney Weinglass and Daniel Williams argued against presenting Mr. Singletary
as a witness. In his effort to keep Singletary off the stand, Attorney
Weinglass raised a host of bizarre excuses to argue against calling this
exculpatory witnesswho at that time was the only available witness who
could testify that Mr. Jamal did not shoot the officer. For example, Attorney
Weinglass argued that Mr. Singletary was incredible or suspicious because he
had friends who were police officersbut this fact clearly made Mr.
Singletary a more credible witness, because it eliminated any bias against
police which could motivate him to slant his testimony in Jamals favor.
At the same time, even Attorneys Weinglass and Williams conceded that it was
undeniable that Singletary was present at the shooting, and they also agreed
that his account of police intimidation was bolstered by the peculiar police
interview of highway patrolman Vernon Jones two days after the shooting. The
Jones interview statement stood out because all Jones had to say in his
interview was that Singletary purportedly had not seen the shooting, and it was
clear to all of us that the only purpose for police to create such a record was
to bolster the false police witness statement that Singletary witnessed
nothing.
65. Ultimately Attorney Weinglass called
Singletary but only after he had first openly discredited this key witness
before he even took the stand by making the blanket statement in open court
that Mr. Singletarys recollections of the shooting were
inaccurate. Attorney Weinglass called Mr. Singletary to the stand
only as a Brady witness and questioned him only concerning
the misconduct of police officers at police headquarters when they tore up and
falsified Mr. Singletarys witness statements. This was a total surprise
to me since Attorney Weinglass had not disclosed he was planning to question
Singletary so as to undermine and discredit him as a witness. Attorney
Weinglass refused to ask Singletary questions in direct examination concerning
the substance of his eyewitness testimony in complete abrogation of his
responsibility to act as an advocate for his client.
66. Attorney Weinglass so-called strategy of
calling Mr. Singletary as a Brady witness while discrediting
his actual eyewitness account is completely contrary to the fundamentals of the
Brady doctrine, because establishing a claim for police misconduct
requires showing that the suppressed evidence could have affected the outcome
of the trial. To show prejudice in the case of Mr. Singletary would require
establishing that his true witness statement would have said that Mr. Jamal did
not shoot the officer. By undermining the credibility of this witness, Attorney
Weinglass sabotaged Mr. Jamals interest. The prosecution took full
advantage of Attorney Weinglass gratuitous assertions that Mr.
Singletarys account was inaccurate, titling that section of
their Pennsylvania Supreme Court brief: The PCRA Testimony of William
Singletary Was IncredibleJust as Defense Counsel Predicted Before Calling
Him as a Witness.
67. In his April 10, 2001 sworn statement, Attorney Williams
confirms that it was his and Attorney Weinglass purpose to prevent
Singletary from testifying about what he claimed to have observed at the crime
scene and to discredit this witness (Williams emphasis). He further
confirms that the federal habeas corpus papers he and Attorney Weinglass filed
never argued that Singletarys account... should be credited.
In his March 21, 2001 affidavit in Jamal vs. St. Martins Press, Williams
falsely states, Never has the defense team even attempted to argue in any
legal filings that Mr. Singletarys account of what he allegedly witnessed
on the night of the murder is in any way defensible or supportable. This
is contrary to arguments made in legal memoranda filed with the Pennsylvania
Supreme Court while I was a member of the defense team during post-conviction
proceedings where we asserted that Singletarys factual account was
accurate in its fundamental substancethat Mr. Jamal is innocent and that
a black male other than Jamal or Cook shot Officer Faulkner and fled the scene.
Attorney Williams sworn statement underscores how the federal habeas
corpus papers he and Attorney Weinglass filed not only failed to move the case
forward by taking account of the new evidence of Jamals innocence but
undermined and eviscerated evidence and arguments already presented in the
post-conviction proceedings.
Attorney Weinglass Undermined the Defense in Other Ways, Including
His Failure to Mount An Aggressive Challenge to the Fabricated
Confession
68. The initial draft of the post-conviction legal
memorandum was prepared by Attorney Williams, working with Attorney Weinglass,
in 1993-94. The initial set of claims Attorney Williams drafted focused solely
on procedural due process issues and was devoid of claims of actual innocence
or police and prosecutorial misconduct under Brady. The evidentiary issues
raised by Attorney Williams dealt with the evidence Attorney Jackson had
already attempted to present during the 1982 trialVeronica Jones, Gary
Wakshul, evidence of Robert Choberts criminal record, and the failure to
provide funds for defense investigators or expertsand Jacksons
ineffectiveness in doing so. Jonathan Piper and I insisted that the
post-conviction petition needed to present the available evidence of Mr.
Jamals innocence and of the police and prosecution misconduct in
suppressing and fabricating evidence, including the concocted confession and
the testimony of William Singletary. The gross violations of due process in the
1982 trial flowed from the fact that an innocent man was being prosecuted on
the basis of falsified evidence.
69. As discussed above, in the couple of months prior to filing
the PCRA petition, Jonathan Piper drafted the Brady claim which opened
the post-conviction papers. He also drafted the summary introduction to the
post-conviction petition which asserted that Petitioner Jamal was
convicted of a crime he did not commit and sentenced to death based on his
political views and history. In this context, I prepared a Motion for
Discovery with the intention of opening the prosecution and police files for
evidence of Jamals innocence and the police and prosecutorial misconduct
which permeated the trial and sentencing. It was only when it appeared that
Attorneys Weinglass and Williams agreed to pursue this approach that I formally
joined the defense team. But as set forth above, their agreement turned out to
be extremely short-lived.
70. When the post-conviction papers were filed on June 5, 1995
Governor Thomas Ridge had already issued a death warrant for Mr. Jamals
execution. The simple reality was that at this juncture Attorney Weinglass had
made minimal preparations for an evidentiary hearing. Jonathan Piper and I
urged Attorneys Weinglass and Williams, who were to handle the presentation of
witnesses at the hearing, to begin preparing for the hearing in the event that
Judge Sabo, based on his manifestly pro-prosecution bias, would deny any
discovery or reasonable preparation time and instead would use the pending
execution date as an excuse to expedite the hearing. Ultimately Judge Sabo did
precisely that. Attorney Weinglasss response to our urging was to say
that I cant deal with it, and that our proposals give
me a headache. He insisted that if there was an evidentiary hearing at
all it would not come for six months. As a result of his complete failure to
prepare for the hearing, the defense team was caught off guard when the
post-conviction court improperly insisted that the defense begin presenting
evidence in July 1995. Attorneys Weinglass and Williams did not have a witness
list, an order of proof, or even an outline for conducting an evidentiary
hearing at the time we filed the post-conviction papers. Because of their lack
of preparation, the task of organizing the evidentiary hearing, lining up
witnesses, issuing subpoenas, attempting to secure discovery, running an
investigation to locate essential witnesses to subpoena and interview and
prepare documentation for court and other essential information devolved on me.
71. During this period Pennsylvania capital
litigation experts advised us that there was precedent for the state and
federal courts to complete the entire round of initial post-conviction and
federal habeas corpus proceedings within a period of weeks under the shadow of
a death warrant, and that the United States Court of Appeals for the Third
Circuit had permitted such a procedure in the 1993 case of a Delaware prisoner,
Kenneth DeShields, resulting in the exhaustion of all habeas proceedings and
his ultimate execution in the course of a few weeks. As a result, Pennsylvania
capital litigation experts warned us in June 1995 that there was no
legal guarantee that Mr. Jamals August 1995 execution would
be stayed.
72. When the post-conviction hearing began, the only issues on
which Attorneys Weinglass and Williams had previously made any real preparation
efforts were ineffective assistance of counsel and the testimony of Dessie
Hightower. Although I was not involved in the preparation of Attorney Anthony
Jackson to testify, it is obvious in hindsight that Attorneys Weinglass and
Williams did not approach this witness with an eye to exposing new evidence
which Jackson had failed to present, and Attorney Weinglass questioning
of Attorney Jackson at the post-conviction hearing was deficient in failing to
establish a predicate for his failure to develop several avenues of defense,
such as the failure to call William Cook as a witness or the failure to call
P.O. Stephen Trombetta, who had repeatedly and affirmatively asserted that
Jamal made no confessions. Moreover, Attorney Weinglass failed to call Attorney
Marilyn Gelb to testify in support of Mr. Jamals claim of ineffective
assistance in the appellate process and agreed to sealing an in chambers
discussion reportedly on her medical condition.
73. Attorney Weinglass and his associate Daniel Williams also
failed to present a thorough challenge to the claim, fabricated two months
after the shooting, that Jamal confessed at the hospital when he
was taken for treatment of his gunshot wound. The only evidence they presented
on this question at the post-conviction hearing was the testimony of police
officer Gary Wakshul, who continued to falsely claim that Jamal did in fact
confess despite a December 9, 1981 statement that Jamal made no
comments. However, Wakshul revealed at the post-conviction hearing that
the purported hospital confession was first raised at a February 1982
roundtable meeting of all the police witnesses in the case under the direction
of prosecutor Joseph McGill. Nonetheless, Weinglass and Williams refused to
pursue this new information which indicated conscious prosecutorial
participation in the fabrication of this evidence.
74. Indeed, two days after Wakshul testified, Attorney Weinglass
inexplicably waived trial prosecutor Joseph McGill as a witness, after he had
been subpoenaed, thereby failing to make a record about his misconduct with
regard to the confession and a host of other evidentiary issues including
promises made to prosecution witnesses White and Chobert as well as his
misconduct in jury selection and closing arguments. The failure to call McGill
also undermined the defenses ability to show the development from the
initial false claim of Inspector Giordano that Jamal confessed in
the police wagon at the scene, to the later false claim inspired at
McGills roundtable meeting that Jamal confessed at the
hospital. The evolution from Giordanos storypresented at the
preliminary hearing before the roundtable meetingto the subsequent
hospital confession story presented at trial pointed to a decision by McGill
that the Giordano version was too risky because McGill had information that
Giordano was the subject of a federal corruption probe. In preparing for
federal court proceedings, Attorney Williams asserted that he would not work on
the confession issues if it required arguing that the prosecution knowingly
presented false evidence.
75. P.O. Stephen Trombetta was an important witness to refute
Giordano because Trombetta did not endorse Giordanos claim that Jamal
said he shot the officer while he was in the rear of the police wagon after
being arrested. Trombetta was a crucial witness because, as Wakshuls
partner, he was with Jamal the entire time from Jamals arrest to his
medical treatment. In numerous reports Trombetta asserted that Jamal did not
make any statements, including at the hospital. Trombetta never endorsed any of
the false claims that Jamal confessed. Additionally, as indicated above,
Trombetta reported that the suspect was wearing a green army
jacket. Yet, Attorney Weinglass did not want to call witness Stephen
Trombetta at the post-conviction hearing, and failed to seek the necessary
court order to obtain a subpoena to compel the testimony of this out-of-state
witness.
76. More broadly, Attorneys Weinglass and Williams did not
seriously attempt to present evidence to discredit the other trial witnesses
who falsely claimed that Jamal confessed, P.O. Gary Bell and
security guard Priscilla Durham. They also did not challenge the
prosecutions fabrication and improper introduction into the 1982 trial
record of a typed statement purporting to memorialize Priscilla Durhams
account, but which Durham herself disavowed. This too, was an issue to have
been pursued with prosecutor McGill.
77. Subsequent to the post-conviction hearing, as part of
preparation for the federal habeas corpus proceedings, Jonathan Piper and I
reviewed the record concerning the confession, which we felt had been
inadequately addressed by Attorneys Weinglass and Williams, and developed
numerous new discrepancies further demonstrating that the claimed confession
was a fabrication. Although we prepared this analysis specifically for
Attorneys Weinglass and Williams, they did not incorporate it into their
federal habeas filings. For example, we determined that the accounts of the
confession provided by various police officers and security guards
were completely inconsistent and contradictory as to when and where the
confession supposedly took place, or even whether Jamal was walking
or lying on the floor at the time he supposedly confessed. This issue was one
that Attorney Weinglass also declined to bring out at the PCRA hearing by not
calling to the witness stand Dr. Anthony Colletta, who had been subpoenaed and
was available to testify that Mr. Jamal did not make any confession during the
entire time he was in the emergency room. The medical evidence demonstrates
that in reality Jamal had been shot through the lung and had lost substantial
amounts of blood, and was not in a condition where he could have
hollered out a confession as claimed.
78. There are many other instances of Attorney Weinglass
dereliction which amounted to an abandonment of his client, a number of which
follow. During the post-conviction hearing Attorney Weinglass failed to bring
out in direct examination of witness Robert Chobert (or in an offer of proof)
the fact that Chobert had told a defense investigator in 1995 that his police
interview reports from 1981 were materially inaccurate in their description of
what he witnessed. Attorney Weinglass did not proffer Arnold Howards
testimony that Ken Freeman admitted that he was an occupant in William
Cooks car and on the scene of the shooting. Attorney Weinglass
failure to call trial prosecutor Joseph McGill to the stand prejudiced the
Batson claim because we were not able to create a record of
McGills claimed reasons for striking black and white jurors, in order to
show that any claimed non-race-based reasons for striking black jurors were
pretextual.
79. At the 1995 post-conviction hearing, Attorney
Weinglass advised Mr. Jamal against testifying in his own defense, telling Mr.
Jamal that he should wait and take the stand only at a retrial of his case.
These instructions were contrary to Mr. Jamals best interests, preventing
him from testifying that he did not shoot Officer Faulkner and is innocent.
Attorney Weinglass made repeated statements to the press that Mr. Jamal would
provide an account of what really happened when he testified at a
retrial. This was in flagrant disregard of the fact that Mr. Jamal could not
and would not ever be able to provide such an account because he did not see
the shooting of Officer Faulkner.
80. The ballistic and other physical evidence was another critical
component of the case requiring thorough investigation, discovery and testing,
but which Attorney Weinglass failed to pursue. Mr. Jamal has always maintained
that he did not shoot P.O. Faulkner. The police ballistics and criminalistics
reports assert that the police tests of this evidence were inconclusive in that
they could not establish that any bullet recovered at the scene or from P.O.
Faulkners body came from Mr. Jamals gun. Testing of the ballistics
and physical evidence, including DNA testing, could be critical to establish,
among other things, that Mr. Jamals gun was not used to shoot the
officer, that other guns were fired at the scene, that other persons were
present at the scene, or that physical evidence was doctored or planted by
police.
81. Despite the central importance of the ballistics and physical
evidence, Attorney Weinglass did not seriously pursue this aspect of the case.
Prior to the post-conviction hearing, the extent of his efforts in this regard
was to retain two experts to state that it would have been useful for the
defense to have obtained funds to pay for the assistance of medical and
ballistics experts. However, there was no attempt to retain an expert to pursue
actual testing of the evidence. Attorney Weinglass ballistics expert,
George Fassnacht, claimed that a conflict of interest prevented him from being
the one to test the evidence.
82. When the court granted the defense permission on July 20, 1995
to inspect and test the physical evidence, Attorney Weinglass did not go to
inspect this evidence himself and told me that he would not do so but that I
could. As a result, by default, I became responsible for reviewing the physical
evidence and subsequently consulting with experts in that regard, although at
that point in time I had limited familiarity with ballistics and
criminalistics. This physical evidence included the weapons allegedly carried
by Officer Faulkner and Mumia Abu-Jamal, and their respective clothing which
showed signs of blood, holes and tears. Also available for inspection were the
charts used by the prosecution to demonstrate the scene to witnesses as well as
the hospital area where Jamal purportedly confessed. A tape of an interview of
Cynthia White as well as a tape of the police radio transmissions were also
available to be listened to. To my knowledge this was the only time that the
physical evidence had been viewed in some thirteen years and even the condition
of the wrapping of the evidence would be potentially relevant to future
litigation. Yet Attorney Weinglass took no responsibility for this viewing of
the evidence.
83. During the period after the post-conviction hearing, because
Attorney Weinglass was not diligently pursuing the ballistics and physical
evidence issues, I attempted to develop a plan for pursuing the relevant
discovery and testing in federal court, including DNA testing. Throughout the
disputes over whether to present Arnold Beverly as a witness, I repeatedly made
the point that Beverlys account opened up avenues for scientific testing
of the physical evidence. Presenting his testimony would increase the chances
of obtaining court permission to carry out tests which could be critical in
disproving the prosecution theory of the case and establishing Mr. Jamals
innocence. However, the court record of the habeas corpus proceedings indicates
that of all the issues posed regarding the ballistics and other physical
evidence, the only request made concerns the question of whether trace metal
testing took place.
My Resignation from the Defense Team in 1999
84. I resigned from the defense team in early July 1999, along
with Jonathan Piper. The immediate reason for our resignation was that Attorney
Weinglass as lead counsel deceived Jamal about the legal significance of the
Beverly confession and was adamant in refusing to file a supplemental
post-conviction petition based on the sworn statements of Arnold Beverly and
William Cook, in conjunction with supporting affidavits and demands for
discovery and testing of the physical evidence, including DNA testing. Attorney
Weinglass refusal to proceed with the Beverly and Cook statements was
also my final realization that Attorney Weinglass would not carry out the
defense demanded by our innocent client, that he would not pursue the necessary
attack on the massive prosecutorial misconduct permeating this case, and that
he would not pursue discovery, scientific testing of the physical evidence and
an evidentiary hearing in federal court. With the final realization that, no
matter what the evidence, lead counsel Weinglass would preclude the necessary
steps from being taken to provide a defense for an innocent man and fight to
overturn Jamals unjust conviction, it was no longer possible for me to
function ethically on his legal team.
85. I am aware of certain facts which may help explain why
Attorney Weinglass would act in such gross disregard for the best interests of
his client. Attorney Weinglass reported to me prior to submission of the
post-conviction petition that he was physically threatened by Ronald Freeman,
the brother of Kenneth Freeman, the man Cook has now sworn was involved in the
shooting of P.O. Faulkner. Some time prior to the filing of the post-conviction
petition in 1995, Attorney Weinglass received a threatening telephone call from
Ronald Freeman, who was then reportedly in prison. According to Attorney
Weinglass, Ronald Freeman called him from the wardens office at the
prison and said that if Weinglass dared to name Kenneth Freeman as the shooter,
he, Weinglass, would be in physical danger. Attorney Weinglass said that he was
upset and frightened by this phone call, particularly because the call came
from the wardens office, suggesting collusion between state actors to
interfere with the investigation and intimidate the defense team. During and
after the post-conviction hearing, a private investigator hired by Attorney
Weinglass to interview current and former Philadelphia police officers also
reported hearing of threats that police would take care of the
defense team. In light of these threats, Attorney Weinglass may well have been
in fear of the consequences that could resultincluding risk to his life
and safetyif he conducted a thorough investigation of the real facts of
P.O. Faulkners death and presented that evidence in court.
86. It is consistent with the overall heated climate surrounding
this case that threats would be made against Mumia Abu-Jamals attorneys.
The efforts of the Fraternal Order of Police nationally to intimidate Mumia
Abu-Jamals supporters and potential supporters are well known. The F.O.P.
has waged a well-publicized, well-funded, nationwide campaign demanding that
Jamal be executed. Using the widow of Officer Faulkner as a spearhead, the
F.O.P. has retailed lies and threats against Jamal supporters through the media
and has sought to chill the exercise of free speech by defenders of Jamal, from
musicians trying to organize benefit concerts to students who have voted to
hear messages from Jamal at their graduation ceremonies.
87. Attorney Weinglass obstruction of the investigation and
refusal to present evidence exonerating Mr. Jamal constituted fundamental
disloyalty to his client and were contrary to pursuing a legal fight for Mumia
Abu-Jamals freedom. Attorney Weinglass not only abandoned any advocacy on
behalf of Mumia Abu-Jamal but effectively pled him guilty to a crime he did not
commit.
88. The concrete documentation of this abdication of counsel is
the federal habeas corpus petition which was filed by Attorneys Weinglass and
Williams in October 1999. That document not only fails to present the
confession of Arnold Beverly but does not include Mumia Abu-Jamal s own
statement of his innocence nor the exculpatory witness evidence of William
Cook. The habeas corpus petition and accompanying memorandum are devoid of the
substantial body of exculpatory material concerning the fabricated confession
and other police and prosecutorial misconduct which had been developed in the
period following the post-conviction hearing. The evidence of Mumia
Abu-Jamals innocence and proof of gross violation of due process
resulting from police, prosecutorial and judicial misconduct were deliberately
suppressed by Attorney Weinglass.
89. This affidavit is submitted to refute the claims advanced by
the prosecution based on the false and self-serving book written by Williams
and supported by Attorney Weinglass that presenting Arnold Beverlys
testimony constitutes propagation of a lie. Rather, as set forth
above, a review of the entire record of this case and the information
discovered over years of investigation independently corroborate Arnold
Beverlys confession that he, and not Mumia Abu-Jamal, shot and killed
police officer Daniel Faulkner. This affidavit certainly does not exhaust the
information I obtained during my years as Jamals counsel which
demonstrates his innocence and the massive police and prosecutorial misconduct
which resulted in his conviction and death sentence. The failure to present
this evidence in court in 1999 was solely the result of Attorneys Weinglass and
Williams abandonment of their client by suppressing this critical
evidence of Mumia Abu-Jamals innocence.
90. I am competent to testify as to all matters set forth in this
Affidavit and if called as a witness would so testify.
RACHEL H. WOLKENSTEIN
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