Spectators Pack Courtroom as 3rd Circuit Hears Appeal in Mumia Abu-Jamal Case

Shannon P. Duffy
The Legal Intelligencer
05-18-2007

Nearly a quarter century has passed since Mumia Abu-Jamal was convicted and sentenced to die for the murder of Philadelphia police officer Daniel Faulkner, and in that time his case has become perhaps the world's most closely watched death penalty case.

In December 2001, a federal judge overturned Abu-Jamal's death sentence due to confusing jury instructions, but upheld his conviction.

Now, in an appeal to the 3rd U.S. Circuit Court of Appeals, prosecutors are asking that the death sentence be reinstated and Abu-Jamal's lawyers are asking for an entirely new trial, arguing that the conviction must be overturned because there is evidence that prosecutors improperly struck black jurors in his 1982 trial.

Thursday, a three-judge panel consisting of Chief Judge Anthony J. Scirica and Judges Thomas L. Ambro and Robert E. Cowen heard oral arguments that lasted more than two hours, far longer than the ordinary 15 minutes per side.

For many of the hundreds of spectators who packed the courtroom, the arguments were likely difficult to follow as the judges and lawyers spoke in a lexicon specific to modern-day death penalty litigation, often referring to case law from the 3rd Circuit and the U.S. Supreme Court. Much of the arguments focused on highly technical and complicated questions about how the federal courts should weigh such claims when a state court system has already rejected identical arguments and upheld both the conviction and death sentence.

But the bottom line was fairly simple: prosecutors insist that Abu-Jamal got a fair shake in the Pennsylvania courts and that the federal courts should not second-guess those rulings, while Abu-Jamal's lawyers insist that no court has ever given their client justice since his trial was unfair from the start due to a racially biased jury selection process and a racist trial judge.

Arguing for the prosecution, Assistant District Attorney Hugh Burns told the appellate panel that Eastern District of Pennsylvania Judge William H. Yohn Jr. erred when he overturned Abu-Jamal's death sentence because he should have deferred to the decision of the Pennsylvania Supreme Court, which had already held that the penalty-phase jury instructions were not confusing.

Yohn, in his 2001 decision, 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 said, violate the U.S. Supreme Court's 1988 decision in Mills v. Maryland.

"The jury charge and verdict form in this case created a reasonable likelihood that the jury believed that it was precluded from considering a mitigating circumstance that had not been found unanimously to exist," Yohn wrote.

But Burns said the jury instructions in fact contained no such flaw. Instead, he said, they merely failed to explicitly inform jurors that they need not be unanimous on mitigating issues.

Such silence on an issue, Burns said, is not a Mills violation on its own, and Yohn erred by holding that jurors in Abu-Jamal's case would assume the unanimity requirement.

But Abu-Jamal's lawyer, Judith L. Ritter, urged the judges to focus on the three-page jury verdict form that, she said, made it impossible for the jury to understand that any one juror had the right to vote against the death penalty on the basis of a mitigating factor even if no other juror agreed.

The verdict form, Ritter said, used the word "unanimously" twice in connection with the death sentence, including once just before a list of mitigating factors.

Ritter asked how the form could possibly be filled out to reflect a non-unanimous finding and suggested that the only possible interpretation the jury could have had was that it was required to be unanimous -- a situation that would clearly violate Mills.

For Abu-Jamal, who has always insisted he is innocent, the more important argument came next when attorney Robert R. Bryan argued that a new trial must be ordered because of racial bias by prosecutors in the jury selection process, a so-called Batson claim.

Abu-Jamal's Batson claim attracted the attention of the NAACP Legal Defense and Education Fund, which filed an amicus brief supporting his claim. And in a rarely seen step, the court agreed to hear oral argument on the issue from NAACP attorney Christina Swarns.

In his Batson claim, Abu-Jamal complains that Assistant District Attorney Joseph McGill peremptorily struck only four of 28 white potential jurors, but struck 11 of 15 black jurors.

But Yohn found that the Pennsylvania Supreme Court correctly rejected that claim, because Abu-Jamal had failed to meet the first prong of the Batson test.

Prosecutor Burns told the court that Abu-Jamal's Batson claim is fatally flawed because his lawyers never made any complaint during the jury selection process. Instead, he said, Abu-Jamal's lawyers conceded at the time that many blacks were being excluded from the jury for valid reasons when they told the judge that they were opposed to the death penalty.

Burns also said the statistics are troublesome because there is no evidence of the racial make-up of the entire jury pool. Without that statistic, he said, it's impossible to make sense of a Batson claim.

But Swarns told the judges that no court has ever given Abu-Jamal a fair shake on his Batson claim.

Under the Supreme Court's decision, she said, a defendant must make out a prima facie claim that racially motivated jury strikes occurred, and the burden then shifts to the prosecutor to explain his or her reasons for the strikes.

"What we're talking about is smoke, not fire," Swarns said.

But Swarns said the courts have never reached the second step of the Batson process because they have always imposed too strict a burden on Abu-Jamal in the first phase.

Bryan urged the judges to look beyond Abu-Jamal's case, saying the U.S. Supreme Court recognized in Batson that racially biased jury selection was a "widespread" practice and that numerous other Philadelphia murder trials from the same period have later spawned successful Batson claims.

"Are we to believe that this case is the exception to the rule?" Bryan asked, noting that Abu-Jamal's case was "highly charged" from the outset since he was a former Black Panther and was accused of killing a white police officer.