By Dave Lindorff
The three-decades-long murder case of Philadelphia journalist Mumia Abu-Jamal, who has sat in solitary in a cramped cell on Pennsylvania's death row for 28 years fighting his conviction and a concerted campaign by the national police union, the Fraternal Order of Police, to execute him, was back in court Tuesday, with a three-judge federal Appeals Court panel reconsidering its 2008 decision backing the vacating of his death sentence, on orders of the US Supreme Court.
Mumia Abu Jamal, on Pennsylvania's Death Row for 29 years
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The three judges, Reagan-nominated Anthony Sirica, Bush Sr.-nominated Robert Cowen, and Clinton-nominee Thomas Ambro, two years ago agreed with a lower court judge, Federal District Judge William Yohn, that the jury in Abu-Jamal's 1982 trial had been provided with a poorly-worded and confusing jury ballot form and flawed instructions from the trial judge during the penalty phase. The confusion, they decided, could have misled jurors into thinking, incorrectly, that in order to consider a mitigating factor against voting for the death penalty, all 12 of the jurors would have had to agree to it. In fact, under the law, any individual juror can decide that there is a mitigating factor against a death sentence. Only aggravating factors that would argue for a death sentence have to be found by all members of the jury to be applicable.
The 2008 ruling was widely seen as a big victory for Abu-Jamal and his attorney Robert R. Bryan, as it meant either that he would avoid execution, instead serving a life sentence without possibility of parole, or that the Philadelphia district attorney would have to request a new penalty phase trial, with a new jury hearing arguments for and against imposition of a new death sentence.
Last January, however, the US Supreme Court threw a wrench into the case, ruling in an Ohio murder case involving Frank Spizak, a neo-Nazi (he sported a Hitler mustache at his trial) once sentenced to death for random killings of Jews and blacks, that a lower court order vacating his death sentence had been in error. That case had also focussed on the confusing language of a jury ballot form, and of the judge's instructions to the jury.
The high court, which also had pending before it at the time an appeal by the Philadelphia DA of the Third Circuit decision in Abu-Jamal's case, sent that case back down to the Third Circuit, asking Judges Sirica, Cowen and Ambro to review their decision in light of its decision in the Spizak case.
At Tuesday's hour-long hearing, Assistant DA Huge Burns tried to make the case that the issues in the Abu-Jamal jury instructions and ballot form were "almost identical" to those in the Spizak case. Abu-Jamal's attorney, Widener University law professor Judith Ritter, who had argued the same issue successfully before the same judges as an assistant counsel in the 2007 hearing, made the counter argument that the problems with the judge's instructions and the jury form in the Abu-Jamal case were "fundamentally different" from those in the Spizak case.
The three judges seemed, in their initial remarks and in their questions, to be leaning towards the defense view.
As Judge Cowen asked, following DA Burns' argument, "Doesn't the jury form in Spizak significantly differ from our form? I found six differences." At another point in the hearing, he said, "Aren't the cases different in more than degree, but in kind?"
Judge Ambro noted that in the Abu-Jamal case, Judge Albert Sabo had told the jurors, "Remember again, your verdict must be unanimous." Ambro observed, "That's sort of a general over-arching instruction." He and Cowen both noted that the Spizak jury had never been told their decision had to be unanimous, while the word "unanimous" was used repeatedly in the Abu-Jamal case, both in the judge's verbal instructions and on the jury form.
Burns tried to counter that while "unanimous" may not have been used in the Spizak case, the jury was addressed as a single entity, at least implying unanimity might be required for the finding of a mitigating factor.
Attorney Ritter honed in on the differences between the Spizak and Abu-Jamal cases, saying, "In Spizak, you had an absence of instructions regarding mitigation that could have confused the jury. Here (in the Abu-Jamal case), it's not silent. Look at number 2 (in the jury ballot form). It starts, "We the jury have found unanimously..."
Ritter argued for Abu-Jamal alone at this hearing following the surprise departure of Abu-Jamal's lead attorney Robert R. Bryan only days before the hearing. Abu-Jamal reportedly asked Bryan last week to simply attend the hearing, but to not address the court, leaving that job to Ritter. Bryan says Abu-Jamal apparently felt that since Ritter had won the argument in 2008, she was a better choice than Bryan himself, who many Abu-Jamal supporters felt was somewhat disorganized and less than incisive at the 2008 hearing. Bryan says his proposal that he make introductory remarks and respond to any questions from the judges at the conclusion of the hearing was rejected by Ritter and Abu-Jamal, so he submitted a brief to the court asking to be removed from the case. The judges agreed to his request last Friday. It is the second time Abu-Jamal has dumped his lead attorney on the eve of a critical hearing. In 1999, just as Judge Yohn was discussing dates for a hearing on his habeas appeal, Abu-Jamal fired lead attorney Leonard Weinglass and assisting attorney Dan Williams, angry over a book on the case that Williams had just published. He replaced them with two attorneys, Eliot Grossman and Marlene Kamish, who had little or no death penalty law experience, dropping them later in favor of Bryan.
In the end, while Presiding Judge Sirica was harder to read, Judges Cowen and Ambro, at least, didn't seem to have been convinced by Burns. "You haven't met Miss Ritter's argument," Cowen said. "She pointed out some differences between the (Spizak and Abu-Jamal) forms that are significant."