A U.S. court is weighing race and other issues in death sentence.
By Emilie Lounsberry
In the nearly 26 years since his conviction for the murder of Officer Daniel Faulkner, the international tempest over Mumia Abu-Jamal has fixed primarily on this question: Did he do it, or was he framed by Philadelphia police?
Yet inside the chambers of the U.S. Court of Appeals for the Third Circuit, Abu-Jamal's innocence or guilt is not the issue. Since May, three judges have been weighing whether to reinstate his death sentence, overturned in 2001. If they do, his last hope will be the U.S. Supreme Court, which hears fewer than 2 percent of all petitions filed each year.
The Third Circuit's decision, expected soon, will be based on knotty constitutional questions relating to the fairness of his 1982 trial in Philadelphia Common Pleas Court and subsequent state appeals:
Were the jury instructions confusing?
Was the trial judge biased in a later hearing?
In addressing the jury, did the prosecutor downplay the likelihood of a capital sentence's ever being carried out?
And - a key contention in Abu-Jamal's appeals - were African Americans purposely excluded from the jury?
He was convicted by 10 white and two black jurors on July 2, 1982. They sentenced him to death the next day.
The subject of racial discrimination in jury selection dominated the spirited oral argument in May between Abu-Jamal's legal team and the Philadelphia District Attorney's Office before the Third Circuit panel.
Defense lawyers contended that, particularly through the mid-1980s, Philadelphia prosecutors routinely excluded black jurors, long viewed as less likely than whites to convict. Prosecutors countered that Joseph McGill, the assistant district attorney who tried the case, had no such bias.
A third black juror had been impaneled, but was replaced by a white juror after she left the hotel where the jury was sequestered. While discussing her, according to the trial transcript, McGill told Common Pleas Court Judge Albert Sabo, "I wanted to get as much black representation as I
could that I felt was in some way fair-minded."
Until 1986, proving racial discrimination in jury selection was almost impossible. But in Batson v. Kentucky, the U.S. Supreme Court said that if a defendant could show the likelihood that black jurors had been excluded for race, prosecutors could be questioned about their reasons. If the prosecution failed to offer race-neutral reasons, the remedy should be a new trial.
State and federal judges have awarded new trials on that basis to 10 convicted murderers from Philadelphia. Abu-Jamal is one of more than a dozen others hoping for the same outcome.
Death-row inmate Donald Hardcastle, for example, was awarded a new trial - three times - by state and federal courts. A panel of 11 white jurors and one African American had condemned him in 1982 on charges that he hacked to death a couple in their North Philadelphia home. His case is now before the Third Circuit, where the District Attorney's Office is continuing its opposition to relief for Hardcastle.
Batson "was an important decision symbolically as well as practically," said JoAnne Epps, a Temple University law professor and former assistant U.S. attorney. Prosecutors' "sensitivities are much more finely attuned these days."
The same year as the Batson ruling, Abu-Jamal's attorneys brought up discrimination in jury selection during an appeal to the Pennsylvania Supreme Court. The court, which already had upheld the conviction, rejected their claim.
In its argument to the Third Circuit, the District Attorney's Office said that Abu-Jamal should have challenged the jury selection at the time of his trial, and that because of the passage of time he was not entitled to even a hearing on the matter.
If the Third Circuit orders a hearing, it will be a victory for Abu-Jamal, possibly adding years to his appeals.
His future is in the hands of the chief judge of the federal appeals court, Anthony J. Scirica, appointed in 1987 by President Ronald Reagan, Robert E. Cowen, also appointed in 1987 by
Reagan and Thomas L. Ambro, a 1999 Clinton appointee.
In previous murder cases from Philadelphia courts, each has voted to grant relief to defendants who argued that black jurors had been excluded because of race.
During his appeal, Abu-Jamal remains one of 228 inmates on Pennsylvania's death row, the nation's fourth-largest, behind California, Florida and Texas. The last person executed in the state was Gary Heidnik, a convicted murderer from Philadelphia who gave up his appeals and died by lethal injection in 1999.
A former radio journalist, Abu-Jamal was working as a cab driver in Center City early on Dec. 9, 1981. At his trial, the prosecution contended that Faulkner had just pulled over a car driven by Abu-Jamal's brother when Abu-Jamal ran toward them from a parking lot across the street and shot the officer. Faulkner, in turn, shot Abu-Jamal.
The defense said another man in the car had killed Faulkner and fled.
Since the trial, Abu-Jamal has generated one appeal after another in state and federal courts. He still has a petition pending in the Pennsylvania Supreme Court, but in his three previous forays there, he lost.
The decision under review by the Third Circuit was made in 2001 by U.S. District Judge William H. Yohn Jr., who upheld Abu-Jamal's conviction but overturned his death sentence. Although he rejected 28 of 29 defense arguments, Yohn said a new sentencing hearing was necessary because the jury might have mistakenly believed it had to agree unanimously on "mitigating" circumstances.
If the Third Circuit decides in Abu-Jamal's favor and does not reinstate his death sentence, he could get a chance to persuade a new jury to give him a life term, and perhaps a hearing on whether black jurors were intentionally excluded.
He also could be awarded a new trial, though most do not expect that. Any ruling in Abu-Jamal's favor would likely prompt the District Attorney's Office to ask the Supreme Court to intervene.
Whatever the judges' conclusion, the international network of Abu-Jamal supporters is planning to turn out en masse when it is announced, to celebrate or to protest. Rallies are slated for Philadelphia, New York and San Francisco for the day after the pivotal ruling.
Maureen Faulkner, the slain policeman's widow, said she, too, was feeling the anticipation. "Waiting for the phone to ring can be a very stressful thing," she said Friday.
"The fact that we're still waiting for a decision indicates that it's not an easy case," said former Third Circuit Judge John J. Gibbons, a lawyer in North Jersey who became an opponent of capital punishment after he left the court and worked to abolish the death penalty in New Jersey.
Former Third Circuit Judge Arlin M. Adams called eight months "a little on the long side" to wait for a ruling. But no doubt, he added, the judges are being cautious, especially since the U.S. Supreme Court could review whatever they do.
"This case has gotten a lot of attention - internationally and nationally," said Adams, a lawyer in Center City. "They want to get it right."