The high court subsequently vacated the appellate court's 2008 decision on Abu-Jamal and asked the appeals court to reconsider.
In its 2008 decision, the appeals court said that the jurors who sentenced Abu-Jamal may have thought - based on the jury instructions and verdict form - that they had to unanimously agree on each piece of mitigating evidence being weighed against aggravating circumstances that justified a death sentence.
Hugh Burns Jr., chief of the city district attorney's appeals unit, told judges yesterday that there was no unanimity requirement for jurors considering mitigating circumstances. (Jurors unanimously had to agree on aggravating factors and unanimously had to agree that those factors outweighed any mitigating factors.)
The jury found one aggravating factor, killing a police officer acting in the line of duty, and one mitigating factor, Abu-Jamal's lack of a significant criminal record. Jurors also found unanimously that the former outweighed the latter.
Burns argued that the Spisak decision required the appeals court to reverse its decision giving Abu-Jamal a new sentencing hearing because the two cases are virtually the same. In Spisak, the high court said that the jury instructions did not say jurors had to be unanimous on each individual mitigating factor.
But Abu-Jamal's attorney, Judith Ritter, said the two cases were not identical, particularly as to jury instructions and verdict form.
She argued that the Abu-Jamal form and instructions had "express" unanimity requirements for finding mitigating circumstances. For example, the verdict form begins with words, "We, the jury."
"The jury instructions in [Abu-Jamal's] case prevented the jury from considering mitigating evidence in the way that the Constitution requires," Ritter said after the hearing.
She was referring to a 1988 Supreme Court decision that a defendant must receive a new sentencing whenever there is a "substantial possibility that reasonable jurors . . . well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed."
The three-judge panel made no decision yesterday.
Whatever it decides, Burns said that further litigation in the case - which has dragged on for 28 years and has made Abu-Jamal an international cause celebre among foes of capital punishment - is likely.