Another hearing in Abu-Jamal saga

Mumia Abu-Jamal's latest chance to get off death row now depends on whether three federal appellate judges believe they can win a legal argument with the U.S. Supreme Court.

In January, the high court vacated a 2008 decision throwing out Abu-Jamal's death sentence and ordered a new hearing.

Tuesday, in a crowded federal courtroom, that hearing was convened. For an hour, lawyers for Abu-Jamal and the Philadelphia district attorney were peppered with questions by the three judges from the U.S. Court of Appeals for the Third Circuit. A decision is not expected before 2011.

Abu-Jamal, convicted in the 1981 slaying of Police Officer Daniel Faulkner, remains in a state prison outside Pittsburgh and will likely stay behind bars for years because no matter what the judges decide, an appeal by one side or the other is a given.

Abu-Jamal, 56, was not in court, but human drama presented itself directly behind the prosecution team, where the seats were filled with the wives and relatives of Philadelphia police officers slain in the line of duty.

They included Maureen Faulkner, Daniel Faulkner's wife; Kimmy Pawlowski, whose husband, John, was killed in 2009; and Judith Cassidy, the widow of Officer Chuck Cassidy, slain in 2007.

After the hearing, they and other relatives of slain officers called for Pennsylvania's death penalty to be overhauled so that those convicted of killing a police officer cannot avoid execution with interminable appeals.

They spoke at Fraternal Order of Police Lodge 5 on Spring Garden Street. Also present were Amber Liczbinski, daughter of Sgt. Stephen Liczbinski; Michelle Liczbinski, the sergeant's widow; Megan McDonald, sister of Officer Patrick McDonald; and John Pawlowski, father of the slain officer.

"The death penalty needs to be used in Pennsylvania and it needs to be applied if a police officer is gunned down strictly because he is a police officer," said Kimmy Pawlowski, who added: "Those who choose to wear the badge and serve our city should be protected by our system and the people of our city."

Maureen Faulkner was at the point of tears as she started to speak. Her voice cracking, Faulkner said: "Put the man to death for what he's done. My husband was murdered in premeditation and malice on Dec. 9, 1981. Here I sit 30 years later in court.

"It's become an absolute joke and it's got to stop. It really has to. . . . Every time we have to go into a courtroom, it is like a wound being ripped back open. It is so emotional for us." She married Faulkner 31 years ago Monday.

Abu-Jamal's hearing opened with Judge Anthony J. Scirica noting what the panel would not do: It would not consider whether the 1982 Abu-Jamal jurors could have been confused by the written instructions when they sentenced Abu-Jamal to death rather than life in prison.

The defense contends that the verdict instructions incorrectly implied that jurors could not consider mitigating evidence in favor of a life sentence unless there was a unanimous agreement for each factor.

In 2008, Scirica and two fellow judges were persuaded of that point and vacated Abu-Jamal's death sentence, ordering a new penalty-phase trial. But the prosecution appealed and the decision was vacated by the high court.

The federal judges in Philadelphia were told to rehear the case, and this time to decide it using as their guide a Supreme Court case that involved an Ohio man, Frank Spisak.

The "Spisak ruling" essentially said that in all but the most egregious cases, confusing instructions on the use of mitigating factors were not grounds for overturning a death sentence and requiring a new trial to determine the penalty.

Abu-Jamal attorney Judith L. Ritter, a professor at Widener Law School, argued that despite what the Supreme Court stated, the Spisak case "was very, very different."

Hugh J. Burns Jr., chief of the district attorney's appellate unit, was sharply questioned by Judges Thomas L. Ambro and Robert Cowen as he argued that Abu-Jamal's case fit within the confines of Spisak.

"You might be right, but there is a decent possibility . . . that you are wrong," Ambro told Burns at one point.

If the court rules in Abu-Jamal's favor, Ritter said, a new jury would decide whether he would remain on death row or get life in prison. Ritter was a last-minute replacement at the oral argument for Abu-Jamal's longtime attorney, Robert Bryan, who last week said he had been receiving "threats" that Abu-Jamal supporters would publicly "embarrass" him. Bryan said he withdrew after being told that Abu-Jamal wanted him off the case.

Outside the courtroom, about 500 supporters of Abu-Jamal demonstrated at Sixth and Market Streets. They included local residents and out-of-towners, among them students from Hunter College in New York City who attended with their professor as part of a history class on revolutionary history.

Michael Schiffman, a teacher from the University of Heidelberg in Germany and author of a German book on the Abu-Jamal case, Race Against Death: Mumia Abu-Jamal, a Black Revolutionary in White America, also came. "The case is now evolving to its final stages," said Schiffman.

Burns said after the hearing that no matter what happens, the case will go on for years.