PETITIONER'S RESPONSE TO RESPONDENTS' OPPOSITION TO PETITIONER'S MOTION
TO TAKE DEPOSITION OF ARNOLD BEVERLY
PETITIONER MUMIA-ABU JAMAL, by and through his attorneys, respectfully
requests leave to submit the following response to the Commonwealth's
Opposition to the Petitioner's "EMERGENCY MOTION FOR AN ORDER AUTHORIZING
DEPOSITION AND REQUEST FOR EXPEDITED CONSIDERATION OF MOTION" and
states the following:
I. A DEPOSITION IS NECESSARY TO PRESERVE THE EVIDENCE AND PROTECT THE
WITNESS.
1. On May 4, 2001 Petitioner filed several sworn declarations amongst
which was a Declaration of one Arnold R. Beverly. In his Declaration,
Mr. Beverly confesses to the killing of P.O. Daniel Faulkner. Although
the Petitioner is innocent, he was convicted of this offense and is under
a sentence of death. It is a rare habeas petitioner who is able to come
before the United States District Court with a full blown confession from
the true perpetrator of the offense of which the Petitioner was convicted
and which proves that the Petitioner is innocent. It should be noted that
Mr. Beverly's confession is corroborated by the polygraph examination
conducted by Dr. Charles Honts, one of the country's foremost experts
in the field, whose declarations are filed contemporaneously with this
Application and [Proposed] Response.(1)
2. Petitioner's Motion to take the deposition of Arnold Beverly was filed
at the same time as Beverly's Declaration. The Petitioner's Motion for
a deposition of his own witness was admittedly brief and to the point.
It is axiomatic that when putting forward a witness who has confessed
to a killing which he was hired to commit, it is necessary to perpetuate
the testimony which proves the innocence of the Petitioner and to protect
the life and safety of the witness.
3. It is disingenuous for the District Attorney to suggest that there
is no emergency which requires the prompt taking of Arnold Beverly's deposition.
It is indisputable that the filing of his signed confession changed Mr.
Beverly's position dramatically, if Mr. Beverly is telling the truth,
and Mr. Beverly was hired to carry out a planned assassination of P.O.
Daniel Faulkner, both common sense and simple logic strongly suggest that
those who hired him might now seek to silence him in order to protect
themselves.
4. If Petitioner were demanding to depose prosecution witnesses, or to
require the District Attorney to turn over evidence in their possession,
their resistance to such a motion might be more comprehensible although
just as indefensible. There is neither burden nor prejudice to the District
Attorney or the Commonwealth in Petitioner's setting the deposition of
one of his own witnesses and subjecting their testimony to the "crucible
of meaningful adversarial testing." If the District Attorney's Office
believed its own representations to the District Court and the media that
Mr. Beverly's confession is a "patently outrageous story" and
a "lie," they would welcome rather than oppose being given the
opportunity to cross-examine the witness under oath.
5. It is difficult to escape the conclusion that the Philadelphia District
Attorney's Office is fearful of the truth in this case - Petitioner Jamal
is an innocent man. The Commonwealth's Opposition goes far beyond the
immediate issue of showing "good cause" for the taking of the
deposition itself. It also seeks to raise the exceedingly complex issues
of statute of limitations, procedural default and deference to state court
fact-finding. These are matters which simply do not need to be addressed
to rule on the motion presently before the court. Indeed, it would be
completely wrong to attempt to adjudicate these issues at this stage of
the proceedings.
II. THE COMMONWEALTH MISCONSTRUES THE BASIS FOR PETITIONER'S MOTION.
6. The Commonwealth has overreacted to Petitioner's Motion and has gone
far beyond the considerations relevant to its determination. The Commonwealth
bases its Opposition to the deposition of Arnold Beverly not on whether
the Petitioner can demonstrate good cause based on claims presently before
the court, but on whether the Petitioner could demonstrate good cause
for discovery on a future claim that it anticipates will arise from Mr.
Beverly's affidavit.
7. "Good cause" for discovery under Habeas Rule 6 exists "where
specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate
that he is ...entitled to relief " Bracy v. Gramley, 520 U.S. 899
(1997). Rule 6 incorporates the District Court's duty under Harris v.
Nelson, 394 U.S. 286 (1969) to order discovery when a petitioner's specific
allegations show that further development of the facts may entitle him
to relief. See Advisory Committee Note to Rule 6. Rule 6 does not require
for a showing of "good cause" that, before initiating discovery,
Petitioner prove-up factually that his allegations are true. If that were
possible there would be no need for discovery. Petitioner need only show
that if the allegations are true then he may be entitled to relief. Thus,
the Commonwealth's feigned derision of the truth of Mr. Beverly's signed
confession is irrelevant to whether his deposition may be taken. Moreover,
as the court observed in Payne v. Bell. 89 F. 2d 967, 970 (USDC, WD Tenn.
2000): "Petitioner need not show that the additional discovery would
definitely lead to relief. Rather, he need only show good cause that the
evidence sought would lead to relevant evidence regarding his petition."
Since Arnold Beverly's testimony would clearly be relevant to existing
claims in the habeas petition (see discussion, infra) there is "good
cause" for his deposition to be taken.
8. The Petition for Habeas Corpus presently before the court alleges in
Claim One:
"THE STATE MANIPULATED TWO PURPORTED EYEWITNESSES TO FALSELY IDENTIFY
JAMAL AS THE SHOOTER, IN VIOLATION OF HIS FIFTH, EIGHTH AND FOURTEENTH
AMENDMENT RIGHTS." Claim Two alleges: "THE STATE SUPPRESSED
EVIDENCE THAT THE TRUE SHOOTER FLED IN VIOLATION OF THE FIFTH, EIGHTH
AND FOURTEENTH AMENDMENTS."
9. If Arnold Beverly's Declaration is true, then Petitioner did not shoot
P.O. Daniel Faulkner; rather, Mr. Beverly shot P.O. Daniel Faulkner and
fled the scene.
III. THE PETITIONER SATISFIES THE "GOOD CAUSE" STANDARD FOR
DISCOVERY.
10. Clearly, if Arnold Beverly shot P.O. Daniel Faulkner, and the Petitioner
did not do so, that would prove that the purported eyewitnesses' testimony
was fabricated and provide circumstantial evidence that they had been
manipulated by the State to testify falsely. And, if Mr. Beverly shot
P.O. Daniel Faulkner and fled the scene, as stated in his confession,
that would support the claim that the "true shooter fled" and
provide circumstantial evidence that the State had suppressed this fact.
Thus Beverly's testimony is clearly relevant to proving two existing claims
in the habeas petition, claims which, if they can be proved, clearly entitle
Petitioner to relief due to prosecutorial misconduct in violation of Petitioner's
right to disclosure of exculpatory evidence, under Brady v. Maryland,
373 U.S. 83(1963), and violation of his right to a fair trial.
11. The underlying premise of the District Attorney's Opposition rests
on a fundamental confusion between the "good cause" standard
for discovery under Habeas Rule 6 and the standard for granting an evidentiary
hearing. In Payne v. Bell, supra, the court pointed out that these are
two entirely different standards and that "a petitioner may show
good cause under Rule 6 without meeting the high standard for an evidentiary
hearing under the AEDPA," 89 F. Supp. 2d at 970. See also Jones v.
Wood, 114 F. 3d 1002, 1009 (9th Cir. 1997)("discovery is available
to habeas petitioners at the discretion of the district court judge for
good cause shown, **regardless of whether there is to be an evidentiary
hearing.** [emphasis added]); 1 Liebman & Hertz, Federal Habeas Corpus
Practice and Procedure (3rd ed. 1998) 708, n. 4 ("although recent
legislation [AEDPA] limits the availability of evidentiary hearings in
certain circumstances, it does not appear to limit other fact-developing
techniques.., for proving factual allegations through evidence generated
with the aid of financial assistance, **discovery**, and other investigative
measures." [emphasis added]). Thus, the Payne Court cautions against
"conflating" the standard for obtaining discovery under Rule
6 with the standard for obtaining an evidentiary hearing (as the District
Attorney's Office mistakenly does in its Opposition) because confusing
these standards "would prevent a habeas petitioner from obtaining
discovery that could be used to bolster claims in his petition, to justify
relief without a hearing, or to explain why certain defaulted claims should
nevertheless be heard on the merits." Clearly, each of these possible
uses of discovery are applicable in the case of Petitioner Jamal.
12. The Commonwealth's argument based on deference to state court fact
finding does not apply to Mr. Beverly's evidence because his declaration
was signed in June of 1999 long after the state court made its factual
determinations in 1995. This evidence could not have been obtained prior
to that date through due diligence as it depended on Mr. Beverly's own
willingness to come forward and provide a signed confession. With regard
to the Commonwealth's statute of limitations argument, the issue before
the court is whether Mr. Beverly's testimony is relevant to proving up
existing Claims One and Two and whether those claims, if proved, would
entitle the Petitioner to relief. Mr. Beverly's testimony is clearly relevant
to these claims. Moreover Beverly's deposition may lead to other evidence
relevant to these claims. Thus, there is "good cause" for the
deposition of Mr. Beverly because his testimony is relevant to proving
existing Claims One and Two.
13. Mr. Beverly's affidavit/confession does, of course, potentially raise
a new claim of "actual innocence." However, this claim is not
presently before the court. The appropriate time for the court to rule
on such a claim is after and not before it is presented. Our courts do
not issue "advisory opinions," but rule only where there is
a "case or controversy" before them.
14. Although the District Attorney and the Commonwealth have cited the
federal habeas statute at Sec. 2254(e) to attempt to block the deposition
of Mr. Beverly, they have chosen to ignore Subsection (2)(B) thereof which
clearly states that a habeas petitioner is entitled to an evidentiary
hearing -- despite a previous failure to develop the factual basis of
a claim in state court proceedings - where "the facts underlying
the claim would be sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense."(2) Clearly,
Mr. Beverly's confession and exoneration of Petitioner Jamal fits directly
within this exception as, absent the constitutional error alleged in Claims
One and Two of the habeas petition, no reasonable factfinder would have
found Petitioner guilty had they been presented with Beverly's confession
that he, and not Petitioner, had shot and killed P.O. Faulkner. Therefore,
and contrary to the District Attorney's argument, the failure by Petitioner
Jamal's prior counsel to file an additional post-conviction petition in
the state court in 1999 to present the Beverly declaration/confession
cannot be invoked to prevent Petitioner from taking Beverly's deposition
today.
15. Moreover, Arnold Beverly's evidence of the "actual innocence"
of Petitioner Jamal would also be sufficient, under the "fundamental
miscarriage of justice" doctrine (Coleman v. Thompson, 501 U.S. 722,
750 (1991)) to relieve Petitioner of the "procedural default"
argued by the District Attorney and the Commonwealth. The Supreme Court
has made it clear that the "miscarriage of justice" rule extends
to cases of actual innocence. 2 Liebman & Hertz, Federal Habeas Corpus
Practice and Procedure (3d ed. 1998) 1116. See also Herrera v. Collins,
506 U.S. 390, 404 (1993) ("In a series of cases culminating with
Sawyer v Whitley, 505 U.S. 333 (1992) we have held that a petitioner otherwise
subject to defenses of abusive or successive use of the writ may have
his federal constitutional claim considered on the merits if he makes
a proper showing of actual innocence.") Accord Sclup v. Delo. 513
U.S. 298, 324-326 & n. 42(1995) ("quintessential miscarriage
of justice is the execution of a person who is entirely innocent";
noting "paramount importance of avoiding the injustice of executing
one who is actually innocent"; "fundamental injustice would
result from the erroneous conviction and execution of an innocent person.")
IV. THE COMMONWEALTH'S INJECTION OF FALSE HEARSAY EVIDENCE IS DEMONSTRATIVE
OF A CONFLICT OF INTEREST.
16. The District Attorney and the Commonwealth have improperly injected
into these proceedings attorney Williams' (the Petitioner's previous "Chief
Legal Strategist") mendacious book, Executing Justice. Not only is
this a shameful attempt by the Respondents to prejudice the court by placing
before it inadmissible hearsay, but the book itself was published in flagrant
violation of Rule 1.8 (d), Pennsylvania Rules of Professional Conduct,
binding in the Eastern District under its rules of Disciplinary Enforcement,
Rule IV. The purpose of Rule 1.8, as explained in the Comment thereto,
is directly relevant here: "An agreement by which a lawyer acquires
literary or media rights concerning the conduct of the representation
creates a conflict between the interests of the client and the personal
interests of the lawyer. Measures suitable in the representation of the
client may detract from the publication value of an account of the representation."
See also Rule 1.8 (d) ABA Model Rules of Professional Conduct.
17. Ironically, however, by putting Williams' book center stage in these
proceedings and by trying to use it against the Petitioner, the District
Attorney and the Commonwealth have themselves cut the ground out from
under their own arguments. The clear conflict of interest which this book
reveals (and in this respect, albeit for this limited purpose, one need
look no further than the extract from the book which the District Attorney's
Office have actually quoted), and the breach of loyalty to his client
by attorney Williams in publishing a book whose false representations(3)
were so readily turned against the client by the respondents, fractures
the agency relationship whereby an attorney's acts or omissions may be
attributed to the client and inextricably and fatally infects any advice
or counsel the attorney may have given to the client.(4)
18. Former chief counsel Weinglass and attorney Williams are both equally
tarred by Williams' book. Both are equally culpable for its publication.
Attorney Weinglass has done nothing to prevent this book's publication,
nor to report attorney Williams' misconduct to the disciplinary authorities
of the Eastern District, thus violating his duty of loyalty to Petitioner.
19. The direct violations of their duty as advocates and officers of
the court by the Petitioner's former attorneys violate "the right
of the accused to require the prosecution's case to survive the crucible
of meaningful adversarial testing" (United States v. Cronic, 466
U.S. 648, 656 (1984)), and thereby demolish the fundamental premises on
which all three of the District Attorney's arguments of statute of limitations,
procedural default, and deference to state court fact-finding must necessarily
rest. See Cronic, supra; Smith v. Robinson, 528 U.S. 259, 286 (2000);
Wood v. Georgia, 450 U.S. 261, 271 (1981); Appel v. Horn, F. 3d (3d Cir.,
May 3, 2001, No. 99-9003); United States v. Cook, 45 F. 3d 388, 393 (10th
Cir. 1995). See also Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978);
Rickman v. Bell, 131 F. 3d 1150, 1157 (6th Cir. 1997); United States v.
Gambino, 788 F. 2d 938. 950 (3d Cir. 1986); Government of the Virgin Islands
v. Zepp, 748 F. 2d 125, 131 (3d Cir. 1984).
20. The foregoing discussion of Petitioner's motion to depose Arnold
Beverly needs to be placed within the proper context for adjudication.
This is a death penalty case. In ruling on a discovery motion under Habeas
Rule 6 in another capital case, the court held that "more liberal
discovery is appropriate in capital cases where the stakes for the petitioner
are so high." Payne, supra, 89 F. Supp. 2d at 971. Payne relied on
the distinction noted by our Supreme Court in Lockett v. Ohio, 438 US
586, 604 (1978): "[TIthe penalty of death is qualitatively different
from any other sentence... We are satisfied that this qualitative difference
between death and other penalties calls for a greater degree of reliability
when the death sentence is imposed." Id. The Payne Court also pointed
to another consideration in favor of granting discovery which is equally
true in the case of Petitioner Jamal: "[C]ourt ordered discovery
is often very useful when the petition alleges out-of-court misconduct
on the part of the prosecution or law enforcement personnel..." Id.
CONCLUSION
21. The issue before the District Court is simply whether Petitioner
may take a deposition of one of his own witnesses. The witness' testimony
is relevant to proving up existing claims in the Petition, claims which,
if proved, would be sufficient to warrant the granting of relief. Because
the witness to be deposed has himself confessed to the crime of which
the Petitioner was convicted and stated that he was hired by others to
commit the killing, there is an obvious danger to the witness' life and
safety which compels the taking of his deposition in order to perpetuate
this testimony and thereby protect the witness himself. Thus, Petitioner
has made the necessary showing of "good cause" for this motion
to be granted. The Respondents' arguments are wide of the mark and seek
to pre-litigate issues which are not before the court for determination.
Accordingly, Petitioner's motion should be granted.
FOOTNOTES
(1) The quality of this evidence far exceeds that offered in Chambers v.
Mississippi, 410 U.S. 284 (1973), in which the Supreme Court held that it
was constitutional error for a state to utilize its procedural rules to
exclude from a defendant's trial evidence of his innocence.
(2) In Cherrix v. Braxton, 131 F. Supp. 2d 756 (2001) cited by the Commonwealth
the court relied on this exception to grant discovery. Thus, the Cherrix
case refutes the Commonwealth position rather than supporting it.
(3) Amongst the numerous misrepresentations in Williams' book, quoted in
the Commonwealth Opposition, is his description of the polygraph results
on Mr. Beverly as "mixed", when in fact Dr. Honts' polygraph test
filed contemporaneously with this response corroborates the confession.
Moreover, it is a matter of record that Petitioner brought a lawsuit against
Williams and his publisher to thwart publication of Williams' book, Jamal
v. St. Martin's Press and Attorney Daniel Williams. USDC. SD NY, 2001 Civ.
2850 (LAP). Petitioner did not give his permission to attorney Williams
to publish this book.
(4) As noted in the letter from the Petitioner's Counsel to the District
Court submitted contemporaneously with this Response, the conflict of interest
of Petitioner's prior counsel also constitutes a violation of his right
under the Pennsylvania Constitution to effective representation in the underlying
state post-conviction proceedings and both invites and requires the filing
of a new post-conviction petition.
Dated: May 29, 2001
Respectfully submitted,
MUMIA ABU-JAMAL
No. AM 8335
SCI Greene
175 Progress Drive
Waynesburg, PA 15370-8090
Petitioner
NICK BROWN, ESQ.
Barrister-at-Law
4 New Square
Lincoln's Inn
London WC2A 3RJ
United Kingdom
(0207) 822-2000
MARLENE KAMISH, ESQ.
Attorney-at-Law
2927 West Liberty Avenue # 193
Pittsburgh, PA 15216-2525
(412) 417-3735
ELIOT LEE GROSSMAN, ESQ.
LAW OFFICE OF ELIOT LEE GROSSMAN
La Rotunda Building
248 East Main Street, Suite 100
Alhambra, CA 91801
(626) 943-1945
J. MICHAEL FARRELL, ESQ.
Attorney-at-Law
Local Counsel for Petitioner
718 Arch Street, Suite 402 South
Philadelphia, PA 19106
(215) 925-4099
Attorneys for Petitioner