CONVICTED cop-killer and onetime Black Panther and MOVE sympathizer Mumia Abu-Jamal should get a new trial because the jury-selection process at his 1982 trial was tainted, his attorney argued yesterday before a U.S. Court of Appeals panel here.
Robert R. Bryan said prosecutors intentionally kept blacks off a Philadelphia jury that convicted Abu-Jamal of killing Police Officer Daniel Faulkner.
The Philadelphia district attorney's office said Abu-Jamal got a fair trial and noted that no charges of racial discrimination were leveled at the time of trial.
The three-judge panel did not indicate when it would rule on the matter.
U.S. District Senior Judge William H. Yohn Jr. overturned Abu-Jamal's death sentence in December 2001 but upheld his conviction.
The DA's office wants the death sentence reinstated, and Abu-Jamal's attorneys want a new trial.
Meanwhile, Abu-Jamal remains on death row at the state prison in Greene County, in western Pennsylvania.
A jury found that Abu-Jamal, now 53, gunned down Faulkner near 13th and Locust streets on Dec. 9, 1981.
Prosecutors alleged that Abu-Jamal, who is black, shot Faulkner after the white officer pulled over his brother.
Defense attorneys claimed somebody else killed Faulkner and then fled the scene.
Bryan, a San Francisco lawyer specializing in death-penalty appeals, argued yesterday that prosecutors illegally had struck qualified blacks from the jury pool in picking a jury for Abu-Jamal's trial.
A 1986 U.S. Supreme Court decision declared that a criminal defendant who can prove that his trial prosecutor used "peremptory challenges" to exclude potential jurors on the basis of race is entitled to a new trial.
Prosecutors and defense attorneys each were given 20 such challenges in the Abu-Jamal trial.
Bryan said prosecutors struck 15 potential jurors from the jury pool - 10 were black and five were white. That, he said, constituted "prima facie evidence" of racial discrimination. Abu-Jamal's jury ultimately included 10 whites and two blacks.
But Abu-Jamal may have a hurdle to jump.
Chief Third Circuit Judge Anthony J. Sirica and U.S. Appeals Senior Judge Robert E. Cowen told Bryan that unless judges can compare the percentage of blacks struck from juries to the racial makeup of the pool from which they are picked, it's difficult to determine if there really was discrimination in picking a jury.
Bryan said no such record exists for the pool that was used for Abu-Jamal's trial.
"We should not have to climb Mount Everest to establish a prima facie case," Bryan said. "That's all I'm asking for."
Assistant District Attorney Hugh Burns said that prosecutor Joseph McGill had wanted blacks on the jury.
"There was no accusation that the prosecutor had to try to rebut. No one at the time [of the trial] accused him of racial discrimination," he said. "So this isn't an instance where there's been a prima facie case established."
McGill, who attended the hearing and is now a Center City lawyer, said he found it "really quite amazing" that Bryan argued he had purposefully tried to exclude blacks from the jury.
McGill also said he couldn't recall exactly how many blacks were in the jury pool from which the jury was picked.
The appeals panel also is weighing two other issues: whether the prosecutor gave an improper closing argument, and whether the judge in a previous appeal was biased.
Yesterday's two-hour hearing attracted about 150 courtroom spectators and included the well-known - veteran activist Dick Gregory, prominent civil-rights lawyer Lynne Stewart and former Georgia congresswoman Cynthia McKinney - and the not-so-well-known.
Outside the courtroom, about 500 Abu-Jamal supporters waved placards that said "Free Mumia" and "New Trial for Mumia" and shouted, "No justice, no peace."
"The whole process has been tainted from beginning to end," said Joseph Swarns, a real estate broker from Staten Island, N.Y.
Chris Zimmerman, an editor and writer from Harlem who edited Abu-Jamal's anthology of essays and poems, "Death Blossoms," said the case was a "litmus test" for the "so-called" criminal-justice system in the U.S.
Faulkner's widow, Maureen, offered a different point of view.
"There is absolutely no doubt that Abu-Jamal murdered Danny. He did it with premeditation, and he absolutely received a fair trial," she said, adding, "He deserved capital punishment."
Over the years, Abu-Jamal's attorneys have filed dozens of appeals at both the state and federal levels.
The state Supreme Court upheld Abu-Jamal's conviction and death sentence in 1989 and rejected all other appeals. The case later moved to federal court.
Yesterday marked the first time a federal appeals court had given Abu-Jamal a hearing on any of his appeals.
Abu-Jamal's writings and taped speeches on the justice system have made him a celebrity among Hollywood activists, foreign politicians and some death-penalty opponents. *