Mumia Sentencing Hearing Would Be Complicated

By Emilie Lounsberry
Inquirer Staff Writer

Dead witnesses.

Old evidence.

A potential dearth of jurors willing to step into a case that has been an international cauldron - and to deliver a death sentence.

Those will be just some of the possible challenges facing prosecutors if the 26-year-old case of Mumia Abu-Jamal proceeds to a new sentencing hearing, with a new jury deciding whether he should get life in prison or death for killing Philadelphia Police Officer Daniel Faulkner in 1981.

"It would be a most interesting sentencing hearing," predicted Center City lawyer Joseph J. McGill, who prosecuted the case in 1982 when he was an assistant district attorney.

The new hearing was ordered last week by a three-judge panel of the U.S. Court of Appeals for the Third Circuit, which said Abu-Jamal must be sentenced to life in prison - or given a chance to persuade another jury that he deserves life, rather than death.

Philadelphia District Attorney Lynne M. Abraham said she would not accede to a life sentence. She is said to be considering a petition to the U.S. Supreme Court seeking to have the death sentence reinstated. Barring a successful appeal, or a change of mind by Abraham, a new penalty hearing will take place.

The court said the hearing must be held within 180 days, but appeals would delay the process, perhaps for up to a year or two. Abraham will leave office at the end of next year, which raises the possibility that her successor would inherit the case.

Meanwhile, Abu-Jamal's lawyer, Robert R. Bryan of San Francisco, said he would ask the full Third Circuit to reconsider the panel's refusal to grant a hearing on his contention that the prosecution intentionally excluded blacks from the 1982 jury.

Abu-Jamal is one of more than 125 death-row inmates in Pennsylvania who have won significant victories - new sentencing hearings or retrials - from judges at various levels of the state and federal court systems.

While about 75 of those cases have not reached final appellate decisions, approximately 55 inmates who had been facing execution are now serving life sentences. In some of those cases, prosecutors agreed to life rather than go through the rigors of a new penalty hearing.

"It's difficult to do. It's not impossible," said Philadelphia Common Pleas Court Judge Benjamin Lerner, who was chief public defender from 1975 to 1990 and now presides over homicide cases.
While Lerner would not comment on the prospect of another Abu-Jamal proceeding, he said such hearings come up from time to time when capital cases are reversed. "It's sort of like putting on the trial again, often without live witnesses being available," he said.

A redo of even part of Commonwealth v. Abu-Jamal would draw a dramatically different audience.

The 1982 trial captivated the Philadelphia region, but a new penalty hearing would draw international attention, with foreign journalists filing courtroom dispatches around the world.
Witnesses from the 1982 trial could be recalled, or their testimony read in the courtroom if they were dead or unable to be located.

Prosecutors also would likely try to find new information that could be used against Abu-Jamal, a former Black Panther and supporter of the radical group MOVE who has written five books and given taped commentaries and speeches from death row.

"I believe his whole background - his whole background - is going to be fair game," said McGill, who said he believed a new prosecutor could put on a persuasive case for death.

The penalty hearing almost certainly would draw a steady stream of Abu-Jamal's supporters: MOVE members, anti-death-penalty activists, academics who have examined the case, occasionally maybe an actor or entertainer who has rallied on his behalf.

McGill said one of the biggest problems might be selecting a jury in such an emotionally charged case.

Carl Tobias, a law professor at the University of Richmond, said he would not be surprised if the hearing were moved out of Philadelphia so a jury could be chosen from a part of the state where the case hadn't received as much attention.

He also said there probably would be "all kinds of arguments" between prosecutors and defense lawyers about what evidence would be admissible.

As a result, he said, a new sentencing hearing would be a tough production. "It would be exceedingly difficult, but it wouldn't be impossible," Tobias said.

Bucks County District Attorney Michelle Henry knows the challenges of presenting an old case to a new jury.

She handled the retrial last year of death-row inmate Richard Laird, convicted in 1988 of murder in an antigay attack on an artist in Lower Bucks County.

"It's extremely challenging to put together a case that's almost 20 years old," Henry said. "Witnesses die. Memories diminish. Victims and witnesses often put the nightmare behind them. They sort of have closed the door on the case."

And then a retrial comes along.

Despite the challenges, Laird was convicted again of murder - and sentenced to death.

Henry said jurors, who weren't told that the original conviction had been overturned, seemed to wonder why they were deciding the case "all this time later."

Bryan, Abu-Jamal's lawyer, said he was not yet focusing on a new sentencing hearing because he still was fighting for a new trial and a chance for his client to be released from prison.

The Third Circuit panel upheld the 2001 decision by U.S. District Judge William H. Yohn Jr., who let stand the murder conviction, but threw out the death sentence. Yohn ruled that the jury in Abu-Jamal's 1982 trial might have mistakenly believed it had to agree unanimously on any "mitigating" circumstances - factors that might have persuaded it to decide on a life sentence instead of death.

He said that after Thursday's decision he spoke with Abu-Jamal, who was pleased that the court did not reinstate the death sentence. "It's a big, positive step," but just the first step, Bryan said. "I want him acquitted."

But if a new sentencing hearing is held, Bryan said, he would present a compelling portrait of Abu-Jamal as a man committed to human rights and women's rights, and outspoken about war, government corruption, and the policies of the Bush administration.

"I would not be about hiding him at all," Bryan said.

Contact staff writer Emilie Lounsberry at 215-854-4828 or elounsberry@phillynews.com.