Third Circuit Court Panel Re-Hears Issue of Abu-Jamal’s Death Penalty on Orders of Supreme Court

The three-decades-long murder case of Philadelphia journalist Mumia Abu-Jamal, who has sat in solitary in a cramped cell on Pennsylvania’s death row for 28 years fighting his conviction and a concerted campaign by the national police union, the Fraternal Order of Police, to execute him, was back in court Tuesday, with a three-judge federal Appeals Court panel reconsidering its 2008 decision backing the vacating of his death sentence, on orders of the US Supreme Court.

The three judges, Reagan-nominated Anthony Sirica, Bush Sr.-nominated Robert Cowen, and Clinton-nominee Thomas Ambro, two years ago agreed with a lower court judge, Federal District Judge William Yohn, that the jury in Abu-Jamal’s 1982 trial had been provided with a poorly-worded and confusing jury ballot form and flawed instructions from the trial judge during the penalty phase. The confusion, they decided, could have misled jurors into thinking, incorrectly, that in order to consider a mitigating factor against voting for the death penalty, all 12 of the jurors would have had to agree to it. In fact, under the law, any individual juror can decide that there is a mitigating factor against a death sentence. Only aggravating factors that would argue for a death sentence have to be found by all members of the jury to be applicable.

The 2008 ruling was widely seen as a big victory for Abu-Jamal and his attorney Robert R. Bryan, as it meant either that he would avoid execution, instead serving a life sentence without possibility of parole, or that the Philadelphia district attorney would have to request a new penalty phase trial, with a new jury hearing arguments for and against imposition of a new death sentence.

Last January, however, the US Supreme Court threw a wrench into the case, ruling in an Ohio murder case involving Frank Spizak, a neo-Nazi (he sported a Hitler mustache at his trial) once sentenced to death for random killings of Jews and blacks, that a lower court order vacating his death sentence had been in error. That case had also focussed on the confusing language of a jury ballot form, and of the judge’s instructions to the jury.

The high court, which also had pending before it at the time an appeal by the Philadelphia DA of the Third Circuit decision in Abu-Jamal’s case, sent that case back down to the Third Circuit, asking Judges Sirica, Cowen and Ambro to review their decision in light of its decision in the Spizak case.

At Tuesday’s hour-long hearing, Assistant DA Huge Burns tried to make the case that the issues in the Abu-Jamal jury instructions and ballot form were “almost identical” to those in the Spizak case. Abu-Jamal’s attorney, Widener University law professor Judith Ritter, who had argued the same issue of a confusing jury instruction and ballot form successfully before the same judges as an assistant counsel in the 2007 hearing, made the counter-argument that the problems with the judge’s instructions and the jury form in the Abu-Jamal case were “fundamentally different” from those in the Spizak case.

The three judges seemed, in their initial remarks and in their questions, to be leaning towards the defense view.

As Judge Cowen asked, following DA Burns’ argument, “Doesn’t the jury form in Spizak significantly differ from our form? I found six differences.” At another point in the hearing, he said, “Aren’t the cases different in more than degree, but in kind?”

Judge Ambro noted that in the Abu-Jamal case, Judge Albert Sabo had told the jurors, “Remember again, your verdict must be unanimous.” Ambro observed, “That’s sort of a general over-arching instruction.” He and Cowen both noted that the Spizak jury had never been told their decision had to be unanimous, while the word “unanimous” was used repeatedly in the Abu-Jamal case, both in the judge’s verbal instructions and on the jury form.

Burns tried to counter that while “unanimous” may not have been used in the Spizak case, the jury was addressed as a single entity, at least implying unanimity might be required for the finding of a mitigating factor.

Attorney Ritter homed in on the differences between the Spizak and Abu-Jamal cases, saying, “In Spizak, you had an absence of instructions regarding mitigation that could have confused the jury. Here (in the Abu-Jamal case), it’s not silent. Look at number 2 (in the jury ballot form). It starts, ‘We the jury have found unanimously…’”

Ritter argued for Abu-Jamal alone at this hearing following the surprise departure of Abu-Jamal’s lead attorney Robert R. Bryan only days before the hearing. Abu-Jamal reportedly asked Bryan last week to simply attend the hearing, but to not address the court, leaving that job to Ritter. Bryan says Abu-Jamal apparently felt that since Ritter had won the argument in 2008, she was a better choice than Bryan himself, who many Abu-Jamal supporters felt was somewhat disorganized and less than incisive at the 2008 hearing. Bryan says his proposal that he make introductory remarks and respond to any questions from the judges at the conclusion of the hearing was rejected by Ritter and Abu-Jamal, so he submitted a brief to the court asking to be removed from the case. The judges agreed to his request last Friday. It is the second time Abu-Jamal has dumped his lead attorney on the eve of a critical hearing. In 2001, just as Judge Yohn was discussing dates for a hearing on his habeas appeal, Abu-Jamal fired lead attorney Leonard Weinglass and assisting attorney Dan Williams, angry over a book on the case that Williams had just published. He replaced them with two attorneys, Eliot Grossman and Marlene Kamish, who had little or no death penalty law experience, dropping them later in favor of Bryan.

In the end, while Presiding Judge Sirica was harder to read, Judges Cowen and Ambro, at least, didn’t seem to have been convinced by Burns. “You haven’t met Miss Ritter’s argument,” Cowen said. “She pointed out some differences between the (Spizak and Abu-Jamal) forms that are significant.”

After which Judge Ambro said, “For example, the word ‘unanimous’ was not used in Spizak.”

Judge Cowen added, “In our case, ‘unanimity’ was used time and time again, and in quite close proximity to where you find things about mitigating circumstances.”

Of course, even if the three-judge panel decides to reaffirm its 2008 decision, the DA’s office will almost certainly appeal again to the Supreme Court, where the same five judges who ruled against Spizak and referred the Abu-Jamal case back to the Third Circuit panel could vote to reverse the Third Circuit. In that event Abu-Jamal would have his death penalty reinstated.

If the high court agreed with the Third Circuit, or if it chose not to take the case and let the ruling stand, then the DA would have to decide whether to leave Abu-Jamal with a life sentence, or to ask for a new penalty phase trial, which would take place back in state court.

The defense is hoping for a retrial of the penalty, since that would at least offer Abu-Jamal the chance to introduce new evidence regarding the shooting of Police Officer Daniel Faulkner. For example, the prosecution made a big point of highlighting the testimony of two witnesses, prostitute Cynthia White and taxi driver Robert Chobert, who both described the shooting of Faulkner by Abu-Jamal as an “execution,” with Abu-Jamal standing astride the fallen cop and firing repeatedly at him at nearly point-blank range. The problem with that story is that only one bullet—the one that struck Faulkner in the middle of his forehead—hit the officer, yet no bullet impacts can be seen in crime scene photos of the area on the sidewalk where Faulkner lay, and police investigators reported finding no such marks either.

A test of a gun similar to Abu-Jamal’s, firing similar metal-clad, high-velocity Plus-P ammunition at a section of old sidewalk concrete, proves that such impact marks should have been clearly visible. While a rehearing of the penalty phase of the trial would not be able to directly raise the issue of guilt, in a penalty phase re-hearing, the defense could be expected to present evidence that the “execution” scenario presented to the jury by the prosecution simply couldn’t have happened, and witnesses would likely be called to challenge the story. That in turn would raise the risk, for the prosecution, that evidence — or a witness recantation — could open the door to a new challenge to Abu-Jamal’s conviction.

Even if the Third Circuit or the US Supreme Court rules against Abu-Jamal, and his original death sentence is reinstated, it is not the end of the road in this long-running case, however.

Back on December 18, 2001, when Federal District Judge Yohn tossed out Abu-Jamal’s death penalty, he noted in his ruling that he had “mooted” four other defense claims of unconstitutional flaws in his death penalty hearing, on the grounds that there was no need to examine these, since he had already decided to vacate the penalty. As Abu-Jamal defense team attorney Christina Swarns notes, “We have an absolute right to have those claims considered.”

In other words, if the death penalty is reaffirmed, Abu-Jamal will be back before Judge Yohn again, where other powerful and compelling objections to the way his initial trial was conducted will have to be reviewed. Among the complaints:

* Prosecutor Joseph McGill’s use of a statement made by Abu-Jamal when he was only 15, quoting Chinese Communist Party Chairman Mao Tse-tung that “Power flows from the barrel of a gun,” in an effort to sway jurors towards imposing a death penalty.

* The rushing of the case and the inadequacy of Abu-Jamal’s legal counsel, attorney Anthony Jackson, with Judge Sabo ordering the penalty phase hearing to begin the day following the jury’s guilty verdict, and Jackson not requesting a delay to allow him to prepare. As a result, Jackson called not one character witness to allow Abu-Jamal to develop a case for mitigating factors.

* Prosecutor McGill improperly advised jurors, with the approval of the judge, that they were “not asked to kill anybody,” because there would be “appeal after appeal after appeal.” The Supreme Court and the Third Circuit, as well as the Pennsylvania Supreme Court, have all repeatedly overturned death sentences because of prosecutors making similar statements to juries, on the grounds that it tends to remove from jurors any sense of the moral consequences of their profound decision. (McGill himself had a death penalty he had won overturned for this exact reason.)

* Finally the defense made the claim that the prosecution withheld form the defense information it had that local police and the FBI had called off years of surveillance of Abu-Jamal after concluding that, as the FBI put it in a note calling off monitoring of Abu-Jamal, “”In March 1973, per bureau instructions, captioned subject (Abu-Jamal) was deleted from ADEX and no additional investigation conducted concerning his activities. Sources, however, have continued to report periodically on COOK (Abu-Jamal’s family name) and, although he has not displayed a propensity for violence, he has continued to associate himself with individuals and organizations engaged in Extremist activities.”

As Asst. DA Burns has said, “This case will go on for years.”