Court of Appeals Ordered New Sentencing Hearing, but Upheld Conviction

By KATHY MATHESON, Associated Press Writer
March 27, 2008

PHILADELPHIA - A federal appeals court on Thursday
said former Black Panther Mumia Abu-Jamal cannot be
executed for murdering a Philadelphia police officer
without a new penalty hearing.

The 3rd U.S. Circuit Court of Appeals upheld
Abu-Jamal's conviction, but said he should get a new
sentencing hearing because of flawed jury
instructions. If prosecutors don't want to give him a
new death penalty hearing, Abu-Jamal would be
sentenced automatically to life in prison.

Prosecutors are weighing their options, Assistant
District Attorney Hugh Burns Jr. said Thursday.

Abu-Jamal's lead attorney, Robert R. Bryan, said he
was glad the court did not uphold the death sentence,
and said he wants a new trial.

"I've never seen a case as permeated and riddled with
racism as this one," Bryan said Thursday. "I want a
new trial and I want him free. His conviction was a
travesty of justice."

Abu-Jamal, 53, once a radio reporter, has attracted a
legion of artists and activists to his cause in a
quarter-century on death row. A Philadelphia jury
convicted him in 1982 of killing Officer Daniel
Faulkner, 25, after the patrolman pulled over
Abu-Jamal's brother in an overnight traffic stop.

He had appealed, arguing that racism by the judge and
prosecutors corrupted his conviction at the hands of a
mostly white jury. Prosecutors, meanwhile, had
appealed a federal judge's 2001 decision to grant
Abu-Jamal a new sentencing hearing because of the jury
instructions.

Hundreds of people protested outside the federal
building in Philadelphia where arguments were heard in
May and an overflow crowd — including legal scholars,
students, lawyers, the policeman's widow and
Abu-Jamal's brother — filled the courtroom.
Abu-Jamal's writings and taped speeches on the justice
system have made him a popular figure among activists
who believe he was the victim of racism. Abu-Jamal is
black; Faulkner was white.

The flaw in the jury instructions related to whether
jurors understood how to weigh mitigating
circumstances that might keep Abu-Jamal off death row.
Under the law, jurors did not have to unanimously
agree on a mitigating circumstance.

"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," the appeals
court wrote.

Arguments before the 3rd Circuit focused on several
constitutional issues, including whether prosecutors
improperly eliminated black jurors.

Ten whites and two blacks served on the jury.
Prosecutors struck 10 blacks and five whites from the
pool, while accepting four blacks and 20 whites,
according to Bryan, who argued that prosecutors of the
day fostered "a culture of discrimination."

Burns argued in court that Abu-Jamal was raising
issues on appeal that he had not raised during a
lengthy 1995 review of the case.

The officer's widow, Maureen Faulkner, has kept her
husband's memory alive over the years, and recently
co-wrote a book about the case. The book, "Murdered by
Mumia: A Life Sentence of Loss, Pain and Injustice,"
written with radio talk-show host Michael Smerconish,
came out in December.