At least for now, execution is off the table for the world-famous death-row inmate Mumia Abu-Jamal following a federal appeals court decision yesterday that left intact his conviction in the 1981 murder of a Philadelphia police officer.
A three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that Abu-Jamal must be sentenced to life in prison for killing Daniel Faulkner or get a chance with a new Philadelphia jury that would decide only whether he should get life or be sentenced - again - to death.
The much-anticipated decision set the stage for more appeals in the 26-year-old case. Abu-Jamal's lawyer said he would ask the full Third Circuit to review the panel's ruling.
The U.S. Supreme Court also is likely to be asked to examine the case, but that court hears fewer than 2 percent of all petitions and has rebuffed Abu-Jamal three times over the years.
Abu-Jamal, now 53 and known as "Pops" to other inmates at the state prison in southwestern Pennsylvania where he remains on death row, has long been a fiercely controversial symbol in the debate about capital punishment in the United States.
From death row, he has written books and recorded speeches for college students and radio commentaries, winning support from entertainment figures, academics, and death-penalty opponents in many parts of the world. Yesterday's Third Circuit panel ruling, for example, was big news in France, where a Paris suburb named a street after Abu-Jamal in 2006.
From Faulkner's widow, Maureen, the ruling brought a mixed reaction. While calling it "somewhat of a victory" that the conviction was upheld, she said she was disheartened by the prospect of a new sentencing hearing.
"It's been such a long time," said Faulkner, who has remained active in speaking on behalf of her late husband and recently cowrote a book, Murdered by Mumia: A Life Sentence of Loss, Pain and Injustice, about the case.
The ruling, meanwhile, was criticized by supporters of Abu-Jamal, who had been hoping for a new trial, even as District Attorney Lynne M. Abraham expressed satisfaction at a news conference that Abu-Jamal's murder conviction remained intact. "He is nothing short of an assassin," Abraham said of Abu-Jamal, deriding him as a "loser" and a "stone-cold murderer."
Abraham also downplayed Abu-Jamal's fame, saying that a mere "11 people showed up" when the street was named for him in the Paris suburb of St.-Denis. And she said it wasn't much of a street - more like an alley.
Abu-Jamal's lawyer, Robert R. Bryan of San Francisco, said he was grateful that the Third Circuit panel did not reinstate Abu-Jamal's death sentence, as prosecutors had wanted. But he said he was deeply disappointed that the court did not order a hearing on Abu-Jamal's contention that blacks were unfairly excluded from his jury in violation of a Supreme Court ruling in Batson v. Kentucky.
"I am not happy that two of the three judges turned a deaf ear to the racism that permeated this case," said Bryan, who argued before the Third Circuit panel that Abu-Jamal deserved a new trial in the face of that racism.
Abraham, when asked whether she would allow Abu-Jamal to be sentenced to life in prison, gave a short, clear-cut response: "No."
But she said she did not want to speculate about how the case might ultimately be resolved. "We're going to do whatever we have to do," Abraham said. "We don't have to decide that now."
She said that, as in all such cases, she would consider the wishes of the widow and other relatives of the victim. But in the end, she said, the decision of how to proceed is up to her. "That's why I am an elected official," she said.
Unless the panel's ruling is overturned - or Abraham or her successor decide to allow a life sentence - the most likely scenario would be a new sentencing hearing, which would unfold in Common Pleas Court with much of the same evidence that came out during Abu-Jamal's 1982 trial. Under the court's decision, the hearing must be held or a life sentence ordered within six months. Appeals, however, would delay the process.
Abraham said that some cases cry out for a death sentence - such as the killing of a police officer.
The panel's decision upheld in all respects the 2001 decision of U.S. District Judge William H. Yohn Jr., who had thrown out the death sentence after concluding that the jury might have been confused by the judge's instructions and wording on the verdict form filled out when the jury decided on death.
Yohn ruled that the jury might have mistakenly believed it had to agree unanimously on any "mitigating" circumstances - factors that might have persuaded jurors to decide on a life sentence, instead of death.
The three Third Circuit judges agreed.
"The jury instructions and the verdict form created a reasonable likelihood that the jury believed it was precluded from finding a mitigating circumstance that had not been unanimously agreed upon," wrote Chief Judge Anthony J. Scirica in the 77-page majority opinion, joined by Judge Robert E. Cowen and Thomas L. Ambro.
But Ambro said he would have gone further than his colleagues and granted a hearing on Abu-Jamal's claim of racial discrimination in jury selection.
In a strong dissent on that issue, Ambro said he believed that Abu-Jamal had met the threshold test of whether discrimination had occurred and that further hearings were warranted.
"This inference requires courts to look further," Ambro wrote. "To move past the prima facie case is not to throw open the jailhouse doors and overturn Abu-Jamal's conviction."
Ambro said it was the duty of courts, under the holding of the Batson case, to be vigilant for signs of racial discrimination. "No matter how guilty one may be, he or she is entitled to a fair and impartial trial by a jury of his or her peers," he wrote in his own 41-page opinion.
The high court said in the Batson case that if even one juror were excluded because of race, that would violate the Constitution.
A Philadelphia jury of 10 whites and two blacks convicted Abu-Jamal of killing Faulkner, who was shot to death near 13th and Locust Streets in the early morning of Dec. 9, 1981.
Prosecutors contend that Faulkner had just pulled over Abu-Jamal's brother, William Cook, for a vehicle stop, and that Abu-Jamal ran toward them and shot Faulkner. Abu-Jamal was shot during the confrontation and was found slumped on a curb with a gunshot wound.
The Pennsylvania Supreme Court upheld the conviction and sentence in 1989 and also rejected other appeals by Abu-Jamal.
Neither Abu-Jamal nor his brother has ever testified about what happened. In an affidavit filed in 2001, Abu-Jamal said he did not shoot Faulkner.
He said he was moonlighting as a cabdriver that night and filling out paperwork when he heard gunshots and saw his brother staggering in the street. He ran toward him, Abu-Jamal said in the affidavit, and was then shot by a uniformed officer.
Abu-Jamal, then 27, was a radio reporter, a onetime Black Panther, and a vocal supporter of the radical group MOVE, whose dreadlock hairstyle he adopted. Philadelphia Magazine named him one of its "People to Watch in '81."
Now, he is one of 228 prisoners on death row in Pennsylvania, which has the fourth-largest death row in the nation, behind California, Texas and Florida.
Abu-Jamal will remain on death row in spite of the Third Circuit panel's ruling, under prison policy, because he still is at risk of execution if a new jury were to order it.
Three prisoners have been executed since the state reinstated capital punishment in 1978, and all three essentially asked to be executed after giving up their appeals. The last to be put to death, in 1999, was Gary Heidnik, the "House of Horrors" killer convicted of torturing and murdering two women in the basement of his North Philadelphia home.
Read the text of the federal appeals court decision and find more coverage at http://go.philly.com/mumiaEndText