Court hears arguments for Abu-Jamal resentencing

Pam Africa (above) and children (right) shouting slogans took part yesterday in a pro-Abu-Jamal rally outside the federal courthouse.
Pam Africa (above) and children (right) shouting slogans took part yesterday in a pro-Abu-Jamal rally outside the federal courthouse.
Posted: November 10, 2010

The 3rd U.S. Circuit Court of Appeals yesterday revisited its 2008 decision that convicted cop-killer and death-row inmate Mumia Abu-Jamal deserved a new sentencing hearing because of flawed jury instructions during his 1982 trial.

The jury sentenced Abu-Jamal, now 56, to death for the 1981 slaying of Philadelphia police Officer Daniel Faulkner.

After an hour of oral argument before three judges and a courtroom filled with 150 spectators, it's unclear how much, if anything, has changed.

Yesterday's hearing came as a result of a decision by the U.S. Supreme Court in January that reversed a lower-court ruling in an Ohio death-penalty case, Smith v. Spisak, over jury instructions.

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.

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