Mumia Abu-Jamal's Death Sentence Overturned, but Conviction Upheld Shannon P. Duffy The Legal Intelligencer 03-28-2008 The long-awaited decision handed down Thursday in notorious cop killer Mumia Abu-Jamal's federal appeal weighed in at 118 pages but changed nothing as the 3rd U.S. Circuit Court of Appeals affirmed a lower court's ruling that upheld Abu-Jamal's conviction but overturned his death sentence because of potentially confusing jury instructions. But a dissenting judge said he would also have ordered new hearings on whether Abu-Jamal can prove that prosecutors improperly struck blacks from the jury. In the majority opinion, Chief 3rd Circuit Judge Anthony J. Scirica found that Senior 3rd Circuit Judge William H. Yohn Jr. was correct in holding that Abu-Jamal is entitled to a new sentencing hearing because the jury that sentenced him to die in 1982 for killing Philadelphia police Officer Daniel Faulkner received faulty jury instructions on the issue of how to deliberate during the penalty phase. Yohn, in a December 2001 ruling, found that the jury instructions and the verdict form could have left jurors with the incorrect perception that they needed to be unanimous on any "mitigating factor" that would support a vote against death. Such jury instructions, Yohn found, violate the U.S. Supreme Court's 1988 decision in Mills v. Maryland. Scirica agreed, saying "the jury instructions and the verdict form created a reasonable likelihood that the jury believed it was precluded from finding a mitigating circumstance that had not been unanimously agreed upon." On that point, the 3rd Circuit panel was unanimous. But the court was divided on the issue of whether Abu-Jamal is entitled to a new trial on the murder charge on the grounds that prosecutors violated Batson v. Kentucky by using two-thirds of their peremptory strikes to keep blacks off the jury. Scirica, in an opinion joined by Senior 3rd Circuit Judge Robert E. Cowen, found that Abu-Jamal cannot pursue a Batson claim because his lawyers never lodged an objection at trial. "We believe a timely objection is required to preserve this issue on appeal. Accordingly, Abu-Jamal has forfeited his Batson claim by failing to make a timely objection," Scirica wrote. But in dissent, 3rd Circuit Judge Thomas L. Ambro complained that his colleagues were making it too hard to lodge a Batson claim for a defendant like Abu-Jamal, whose trial was held before Batson was decided. "I fear today that we weaken the effect of Batson by imposing a contemporaneous objection requirement where none was previously present in our court's jurisprudence and by raising the low bar for a prima facie case of discrimination in jury selection to a height unattainable if enough time has passed such that original jury records are not available," Ambro wrote. Abu-Jamal's lead attorney said he was glad the court did not reinstate the death sentence, but he wants the full court to rehear the case and grant his client a new trial. "I've never seen a case as permeated and riddled with racism as this one," Robert R. Bryan said. "I want a new trial, and I want him free. His conviction was a travesty of justice." In a press conference Thursday afternoon, District Attorney Lynne Abraham said she was pleased that the appellate court had rejected every argument raised by Abu-Jamal alleging impropriety by police, attorneys or the courts. "I am extremely pleased that the 3rd Circuit, after 26 years, has finally come to this day," she said. "This has been a long day in coming." Abraham also had harsh words for Abu-Jamal's supporters and said the ruling should dispel any myths about his innocence. "This assassination has been made a circus by those people in the world and this city who believe falsely that Mumia Abu-Jamal is some kind of a folk hero. He is nothing short of an assassin," Abraham said. Abu-Jamal's case has garnered international attention, and his appeals have been waged for more than a quarter of a century. In his federal habeas corpus petition, Abu-Jamal claimed that the Pennsylvania courts made dozens of errors in the handling of several rounds of appeals. But in his 272-page decision in 2001, Yohn rejected all but one of the claims. Despite overturning Abu-Jamal's death sentence, Yohn's ruling was otherwise a major victory for the Philadelphia District Attorney's Office because it rejected 28 of the 29 claims in Abu-Jamal's petition, including claims that the trial judge violated his rights by repeatedly removing him from the courtroom because of his angry outbursts. Before tackling the legal issues, Yohn laid out a chilling account of Abu-Jamal's crime. On Dec. 9, 1981, on Locust Street between 12th and 13th streets in Philadelphia's Center City, Officer Faulkner pulled over a vehicle driven by Abu-Jamal's brother, William Cook. Faulkner called for backup, and Cook exited his vehicle and scuffled with Faulkner. Seeing the altercation, Abu-Jamal ran to the scene from a parking lot across the street. As Abu-Jamal approached Faulkner, he shot him in the back, Yohn said. While falling, Faulkner fired at Abu-Jamal and struck him in the chest. Abu-Jamal then stood over the fallen Faulkner and fired four more shots, the first of which entered Faulkner's brain between his eyes, the opinion said. Wounded, Abu-Jamal then walked several steps away from the dying officer and dropped down, sitting on the curb. Cook remained on the scene standing near the wall of the adjacent building. Within one minute of Faulkner's radio call, Officers Robert Shoemaker and James Forbes approached the scene, where a cab driver advised them that an officer had been shot. Faulkner was taken to Jefferson Hospital immediately and later was pronounced dead. As Shoemaker approached, Abu-Jamal reached for something on the sidewalk. Despite Shoemaker's repeated orders to "freeze," Abu-Jamal continued to move toward the object. Drawing closer, Shoemaker identified the object as a gun and kicked Abu-Jamal in the chest to get him away from it before kicking the gun out of his reach, Yohn wrote. At trial, prosecutors presented four eyewitnesses, including Cynthia White, who testified that she witnessed Abu-Jamal run out of a parking lot as Faulkner attempted to subdue and handcuff Cook. Robert Chobert testified that he heard a shot, looked up, saw the victim fall and then saw Abu-Jamal shoot Faulkner in the face. Yohn's ruling was a major setback for Abu-Jamal not only because it rejected 28 of his 29 claims but also because it said that only one of the rejected claims -- the Batson issue -- should be certified for appeal. Now the 3rd Circuit has upheld Yohn's ruling in all respects. Most of Scirica's opinion is devoted to two issues: whether Abu-Jamal can prove a Batson violation, which would entitle him to an entirely new trial, and whether the jury was properly instructed in the penalty phase. Scirica found that Abu-Jamal cannot bring a Batson claim because his lawyers failed to object during the voir dire process. "A Batson claim requires a fact-intensive inquiry into the prosecutor's use of peremptory challenges. A timely objection gives the trial judge an opportunity to promptly consider alleged misconduct during jury selection and develop a complete record," Scirica wrote. Although Batson had not yet been decided at the time of Abu-Jamal's trial, Scirica found that "even before Batson, a timely objection of racial bias involving jury composition would have alerted the judge to errors that might be corrected in the first instance and given the judge the opportunity to develop a complete record of the jury selection process for appellate review." But even if Abu-Jamal were allowed to bring the claim, Scirica found that it would fail because courts cannot analyze whether a prosecutor engaged in racially motivated conduct in jury selection without knowing critical facts that are missing from Abu-Jamal's record. Scirica said Yohn had noted "four missing pieces of evidence" that are often used when evaluating whether a defendant can establish a prima facie Batson violation: the racial composition of those jurors dismissed by the defendant, the total number of jurors in the jury pool, the racial composition of the jury pool and the number and race of those dismissed for cause. "Without this evidence," Scirica wrote, "we are unable to determine whether there is a disparity between the percentage of peremptory strikes exercised to remove black venirepersons and the percentage of black jurors in the venire." Turning to the death penalty phase, Scirica found that Yohn was correct in holding that the Pennsylvania courts had erred by rejecting Abu-Jamal's claim that the jury may have been confused by the judge's instructions and the wording of the verdict form. In combination, Scirica said, the instructions and the verdict form may have led jurors to believe that they could not cast a vote against the death penalty unless the jury had unanimously agreed on at least one mitigating factor. "There is nothing in the verdict form to clarify that the jury should apply the unanimity requirement to aggravating circumstances, but not to mitigating circumstances," Scirica wrote. The judge's instructions also "risked jury confusion" about a unanimity requirement for both aggravating and mitigating circumstances, Scirica found. "Throughout the jury instructions, the court repeatedly emphasized unanimity in close relation to its discussion of mitigating circumstances," Scirica wrote. The Associated Press contributed to this report.

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