A Fair Decision?

It's one of those cases that has generated passionate views on either side. Just the words "Free Mumia" stir strong feelings and have done so for 25 years. And the case is back in the news:

One of the most controversial death row inmates in American history, convicted cop killer Mumia Abu Jamal is heading back to court to seek a new trial.

A folk hero to some and a cold-blooded murderer to others, Abu Jamal has been on death row for 24 years. Today his case gets a new day in court, as a panel of judges in Philadelphia decides whether to strike his death sentence and grant him a new trial.

Abu Jamal, an outspoken journalist and active member of the Black Panthers, was convicted of killing a Philadelphia police officer in 1982. On a cold December night in 1981, Officer Daniel Faulkner was found dead, shot once in the back and once between the eyes. When police arrived at the scene, Abu Jamal was sitting on the curb a few feet away from Faulkner's body.

Crime scene witnesses testified that they saw Abu Jamal fire a shot at Faulkner's back. Next to Abu Jamal was a gun prosecutors say they linked to the bullets that killed Faulkner. Together, the collective physical and testimonial evidence led a jury to find Abu Jamal guilty after a few hours of deliberation.

Abu Jamal proclaimed his innocence from the start of the investigation. He and his lawyer, Robert Bryan, say there were substantial flaws in that trial. Bryan, an expert in death penalty litigation, argues that the trial was poorly run and that the jury was tainted by racial bias.

So says ABC News, Mumia: Folk Hero or Cold-Blooded Killer?

The case was back in federal court today, with oral arguments being heard in the 3rd Circuit Court of Appeals. Several hundred people rallied today in Philly (and elsewhere) in support of Mumia, see Supporters Rally For Ex-Black Panther. As the Inquirer said, Mumia Abu-Jamal’s case before federal court:

A federal appeals court heard conflicting legal arguments this morning on whether Philadelphia's most notorious death-row inmate received a fair trial in 1982 when he was convicted of killing police officer Daniel Faulkner.

The court proceeding marks a turning point in the case of Mumia Abu-Jamal, a former radio reporter and Black Panther who has been trying to escape the death penalty for 25 years.

If the U.S. Court of Appeals for the Third Circuit upholds the death sentence, Abu-Jamal would be more at risk of execution than at any point in the last 25 years.

I didn't move to Philly until about 5 years after the murder, so I'm somewhat of a latecomer to the case. I've followed it off and on over the years and have read a fair amount about the facts of the incident, as well as the trial proceedings. However, I'm certainly not in a position to know whether Mumia is innocent or not.

I do know that this is the city that had Frank Rizzo as Police Commissioner before he was Mayor. For those who are familiar with the name, I need say no more. This was a time when the police didn't just wear brown shirts. Likewise, the City of Brotherly Love wasn't so lovely to its black brethren.

Add to that, the Judge who tried the Mumia case, Judge Sabo, was reported to have remarked -- on several occasions during the trial -- that he would "fry the n*****" For an interesting summary of the case, see Are you telling me the Gates of Hell are in Philadelphia?. The DA's Office in Philly has had a problem with removing blacks from juries for years. In fact, Ron Castille, who was a DA at the time and then Supreme Court Justice, was involved in a "training video" with tips on the best ways to do it. He later refused to recuse himself from the Abu-Jamal appeal, despite the fact that he was involved in the case. See Justice.

So, with this history of the black experience with Philly Justice, would it shock me to learn that Mumia did not receive a fair trial? Perhaps the better way to put it would be to say that I'd be more surprised to find out that he did.

Well, everything must change. Maybe even Philly. The Inquirer's report notes:

After the two-hour proceeding, people on both sides of the controversial case said they thought the judges were well-prepared and fair to both prosecutors and lawyers for Abu-Jamal.

"They were informed. They asked very important questions. I think they seemed impartial," said Francis Goldin, Abu-Jamal's literary agent.

Maureen Faulkner, the widow of Faulkner, said that she, too, thought the judges were fair. "I have to trust that the federal courts will look at what's presented to them to . . . make a fair decision," said Faulkner, who traveled from California for the hearing.

The Third Circuit will now review Yohn's reasoning and consider whether there was racial bias during jury selection, and whether Abu-Jamal's constitutional rights were violated by the prosecutor's closing argument and by the alleged bias of the trial judge, Albert Sabo, during post-conviction review.

The Third Circuit could:

- Reverse Yohn and uphold the death sentence.

- Uphold Yohn and order a new sentencing hearing.

- Grant a new trial.

- Send the case back to Yohn for a hearing.

Whatever they do, let's hope it's the right thing.

UPDATE: In a January 27, 2007 article, the Philadelphia Inquirer reports on the status of the Mumia appeal, Ruling near on Abu-Jamal jury:

In the nearly 26 years since his conviction for the murder of Officer Daniel Faulkner, the international tempest over Mumia Abu-Jamal has fixed primarily on this question: Did he do it, or was he framed by Philadelphia police?

Yet inside the chambers of the U.S. Court of Appeals for the Third Circuit, Abu-Jamal's innocence or guilt is not the issue. Since May, three judges have been weighing whether to reinstate his death sentence, overturned in 2001. If they do, his last hope will be the U.S. Supreme Court, which hears fewer than 2 percent of all petitions filed each year.

The Third Circuit's decision, expected soon, will be based on knotty constitutional questions relating to the fairness of his 1982 trial in Philadelphia Common Pleas Court and subsequent state appeals:

Were the jury instructions confusing?

Was the trial judge biased in a later hearing?

In addressing the jury, did the prosecutor downplay the likelihood of a capital sentence's ever being carried out?

And - a key contention in Abu-Jamal's appeals - were African Americans purposely excluded from the jury?

He was convicted by 10 white and two black jurors on July 2, 1982. They sentenced him to death the next day.

The subject of racial discrimination in jury selection dominated the spirited oral argument in May between Abu-Jamal's legal team and the Philadelphia District Attorney's Office before the Third Circuit panel.

* * * *

If the Third Circuit decides in Abu-Jamal's favor and does not reinstate his death sentence, he could get a chance to persuade a new jury to give him a life term, and perhaps a hearing on whether black jurors were intentionally excluded.

He also could be awarded a new trial, though most do not expect that. Any ruling in Abu-Jamal's favor would likely prompt the District Attorney's Office to ask the Supreme Court to intervene.

What is interesting about the article -- and truly the main point of the piece -- is the fact that no decision has been rendered to date. The case was argued in May and it's rare for the Third Circuit to delay a decision for such an extended length of time. Of course, the court does not release any details about pending appeals, so there is no way to know why the decision has been held up. Although each three judge panel circulates an opinion to the full court before it is released, if the full court had wanted to re-hear the case en banc, I would think that this decision would have been made before now. As the Inky article observes:

"The fact that we're still waiting for a decision indicates that it's not an easy case," said former Third Circuit Judge John J. Gibbons, a lawyer in North Jersey who became an opponent of capital punishment after he left the court and worked to abolish the death penalty in New Jersey.

Former Third Circuit Judge Arlin M. Adams called eight months "a little on the long side" to wait for a ruling. But no doubt, he added, the judges are being cautious, especially since the U.S. Supreme Court could review whatever they do.

"This case has gotten a lot of attention - internationally and nationally," said Adams, a lawyer in Center City. "They want to get it right."

For more on the case, see Spotlight on Death Row.

Tags: Civil Liberties, Law, Philly, Mumia