STATEMENT OF FACTS IN THE NEW JERSEY TRIAL OF ASSATA SHAKUR:
Written by Evelyn A. Williams, dated June 25, 2005
As a member of Assata’s New Jersey trial legal defense team, and her
appeal lawyer, I think a correct statement of the circumstances of New
Jersey Trooper Werner Foerster’s death as established by exhibits,
trial testimony and forensic evidence and that conclusively repudiate
the revisionist lies now being advanced by the State of New Jersey as
“fact”, need to be repeated.
It is be remember that the only surviving eyewitnesses to the NJ
Turnpike shoot-out were (1) Sundiata Acoli, (2) Trooper Harper, (3)
Assata and (4) the driver of a car traveling along the NJ Turnpike at
the time of the incident. Zayd Malik Shakur, a passenger, was killed
during the shootout.
1. Sundiata did not testify at trial, nor did he make any pre-trial
statements.
2. Harper’s testimony and actions are contained in the following
documents (admitted into evidence)
a. The three official investigative reports prepared by Harper, in
which he wrote that after he stopped the Pontiac, he ordered Sundiata
to the back of the car to show his driver’s license to Trooper
Foerster who had arrived at the scene. That Sundiata complied without
incident. That as he looked into the inside door of the Pontiac to
check the registration, Foerster yelled at him and held up an
ammunition clip. He stated that at the same time Assata reached into a
red pocketbook, removed a gun from it and fired at him. That he
immediately ran to the rear of his car and fired at Assata, who had
emerged from the car, and was firing at him from a prostrate position
alongside of the Pontiac. And it was at this point that he shot her.
(admitted into evidence)
b. His Grand Jury testimony where he swore under oath to the truth of
the statements he had made in his 3 official reports. (admitted into
evidence)
c. Trial transcripts of his testimony at both Sundiata’s and Assata’s
trials where he admitted, under cross-examination, that he had lied in
all three of his official reports and in his Grand Jury testimony.
That the truth was that Foerster had never shown him an ammunition
clip; that Foerster had not yelled to him; that he had not seen a gun
in Assata’s hand while she was seated in the car; that Assata did not
shoot him from the car; and that he had not seen a red pocketbook.
d. Audio tapes of the official recorded NJ Turnpike radio
communications between all NJ State Trooper cars traveling the
Turnpike near the scene of the shoot-out, dated May 2, 1973, which
revealed that two additional turnpike patrol cars, those driven by
Trooper Robert Palenchar and Trooper Woerner Foerster, had been
ordered to aid Harper at the stop prior to the shoot-out. (admitted
into evidence)
e. The verbatim, hand-written record of what transpired inside the NJ
Turnpike Administration Building when Harper entered it at or about
1AM on May 2, 1973, to report the shoot-out to Sergeant Chester
Baginski who was in charge of maintaining the official record of
turnpike occurrences on that (refereed to as the Station Bible).
Harper reported that he had just been involved in a shoot-out after he
had stopped a Pontiac containing three Black people, two men and a
woman, that he had been wounded, and that the Pontiac was proceeding
South on the turnpike. He gave the license plate number, but did not
mention that Trooper Foerster had arrived at the scene. (admitted into
evidence)
f. Audio tapes of the investigation conducted by Detective Sgt. First
Class Richard H. Kelly in the Administration Building at 7:37AM that
morning to determine why over an hour elapsed from the time Harper
entered the Administration Building that night and the discovery of
Foerster’s body. Statements by each of the troopers present when
Harper came into the Administration Building revealed that Harper had
not reported Foerster’s presence at the scene and that no one was
aware of the fact that Foerster lay on the road beside his car in
front of the Administration building for over an hour, when his body
was accidentally discovered by Trooper O’Rourke who had left the
Administration building to investigate the scene of the shoot-out,
less than 200 yards away. (admitted into evidence)
3. Assata testified that Harper stopped the car without any known
reason, shot her with her arms raised at his demand, and then shot her
in the back as she was turning to avoid his bullets. Almost mortally
wounded, and semi-conscious, she climbed into the backseat of the
Pontiac to avoid further bullets. Sundiata drove the car five miles
down the road and parked it, where she remained until State Troopers
dragged her onto the road.
4. A driver traveling north along the turnpike at the time of the
incident testified at trial that he had seen a State Trooper
struggling with a Black man between a parked white vehicle and a State
Trooper car whose overhead revolving lights lit up the area. He was
unable to identify the Black man, and further stated that he saw no
one else on the road or at the scene. He immediately reported what he
had seen to New Jersey Police Headquarters.
It therefore remained only forensic evidence to help determine the
facts of that night as much as they could be determined. The forensic
evidence examined by both the New Jersey crime laboratory in Trenton,
New Jersey and FBI crime laboratories in Washington, D.C. established
the following:
1. The finger print analyses of every gun and every piece of
ammunition found at the scene showed there were no fingerprints of
Assata found on any of them. (The official analyses admitted into
evidence)
2. Neutron Activation Analysis taken immediately after Assata was
taken to the hospital that night showed there was no gun power residue
on her hands. Effectively refuting the possibility that she had fired
a gun. (The official analyses were admitted into evidence)
3. As a result of the bullet Harper shot under her armpit, while her
arms were raised in, her median nerve was severed, immediately
paralyzing her entire right arm, shattering her clavicle, and lodging
in her chest so close to her heart that an operation to remove it was
not feasible. A neurologist testified to that fact at the trial.
4. A pathologist testified that “There is no conceivable way that the
bullet could have traveled over to the clavicle if her arm was down.
That trajectory is impossible.”
5. A surgeon testified that “it was anatomically necessary that both
arms be in the air for Ms. Chesimard to have received the wounds she
did.”
The state offered no expert witnesses to refute this medical
testimony.
6. Photographs depicting the gunshot entry wound under her armpit and
the entry would of the bullet Harper shot into her back were admitted
into evidence during the trial.
Therefore, since no evidence existed that proved Assata fired the
bullet that killed Trooper Foerster, why was she found guilty of his
murder? There are several explanations:
The first is that the climate of hatred, prejudice and racism that had
so contaminated the Middlesex County jury pool in 1973 that a change
of venue was ordered, continued to exist in 1977. The unanimous
opinion of the 1973 jury pool was “If she’s Black, she’s guilty.”
After three defense motions for change of venue, Judge Leon Gerofsky
granted the motion, stating, “It was almost impossible to obtain a
jury here comprised of people willing to accept the responsibility of
impartiality so that defendants will be protected from transitory
passion and prejudice.” The trial was then moved to Morris County
where Assata’s trial was severed from Sundiata’s because of her
pregnancy.
In 1977 Assata began trial for the second time in this same Middlesex
County, and this time jury nullification was insured: The jurors
chosen to determine Assata’s guilt or innocence consisted of five
jurors who were either relatives or close personal friends of state
troopers or of state law enforcement officers.
However, Assata was not convicted of firing the shot that killed
Trooper Foerster. She was convicted as an accomplice to his murder
under New Jersey’s “aiding and abetting” statute. Under New Jersey
law, if a person’s presence at the scene of a crime can be construed
as “aiding and abetting” the crime, that person can be convicted of
the substantive crime itself. Judge Theodore Appleby charged the jury
that they were permitted to speculate that Assata’s “mere presence” at
a scene of violence, with weapons in the vehicle, was sufficient to
sustain a conviction of the murder of Trooper Foerster. She was also
convicted of possession of weapons – none of which could be identified
as having been handled by her and of the attempted murder of Trooper
Harper, who had sustained a flesh wound at the time of the shootout.
Now, 32 years after her conviction, a new, fabricated version of
Foerster’s death has emerged:
There is absolutely no evidence to support statements made by Col.
Joseph R. Fuentes, superintendent of the New Jersey State Police, who
said that “It was later determined that Werner Foerster’s service
weapon was ripped from his holster as he lay wounded on the pavement,
and he was executed with two shots to the head from his own service
weapon.”
But his motivation for making those statements is clear:
1. To justify Assata being placed on the domestic terror watch list
along with Osama bin Ladin. He said, “Anyone with a mindset that would
execute a police officer once they were on the ground is dangerous
enough to be considered a domestic terrorism threat.” But Assata is
the only person convicted of a single domestic crime who has been
classified a terrorist and put on the terrorism watch list, thereby
nullifying the very definition of “terrorism”
2. To justify the $1 million dollar bounty to be paid from tax payers
money. He said, “The reward money should make Chesimard a much more
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