While supporters of Philadelphia's most notorious death-row inmate demonstrated outside, a federal appeals court wrestled yesterday with the question of whether the prosecution intentionally kept blacks off the jury in the 1982 murder trial of Mumia Abu-Jamal.
Abu-Jamal, a former radio reporter then driving a cab, is seeking a new trial for the 1981 murder of Police Officer Daniel Faulkner - or at least a chance to get off death row.
If he loses this round before the U.S. Court of Appeals for the Third Circuit, Abu-Jamal, now 53, will be more at risk of execution than at any point in his 25 years of appeals.
So the stakes were high yesterday in a court proceeding that focused squarely on the law as the three judges pressed prosecutors and Abu-Jamal's lawyers about the key points in the case - especially about how to determine if blacks were unfairly excluded from the jury.
Abu-Jamal's lawyer, Robert R. Bryan, contends that there was a "culture of discrimination" in the Philadelphia District Attorney's Office around the time of the 1982 trial, and that the prosecutor used 10 of 15 challenges to strike potential jurors who were black.
But prosecutors contend that there was no evidence of racial discrimination and that Abu-Jamal waived any chance to make that argument now by failing to raise any objections during jury selection in 1982.
"There was no timely objection. That defeats the claim," Hugh J. Burns Jr., chief of the appeals unit in the District Attorney's Office, told the judges.
While the high-level legal debate continued for more than two hours, a quiet audience of about 200 people listened intently. Abu-Jamal supporters from Germany and France, along with activist Dick Gregory and local MOVE activist Ramona Africa, sat amid family members of the slain officer, including his wife, Maureen, who traveled from California for the hearing.
Maureen Faulkner said at the end of the court proceeding that she remains convinced of Abu-Jamal's guilt. "No matter who was on the jury, I think they would have come to the same conclusion," she said.
As the audience poured out onto the plaza, which was filled with placards and banners in support of Abu-Jamal, people on both sides of the case seemed to agree, finally, on something: The judges were well-prepared and had held a fair hearing.
"The judges were very professional," said Claude Guillaumaud, who was part of a French delegation that came from Paris for the hearing. She said she has studied the case and read the transcript of the trial before Philadelphia Common Pleas Judge Albert Sabo.
"I don't know what the conclusion will be, but it was very different than Judge Sabo," she said.
Abu-Jamal was sentenced to death in July 1982 by a predominantly white Philadelphia jury. The state Supreme Court upheld his conviction in 1989 and also refused to grant him subsequent relief.
When the case moved to federal court, U.S. District Judge William H. Yohn Jr. rejected 28 of the 29 defense claims.
But Yohn did rule in favor of Abu-Jamal in deciding that the jury may have mistakenly believed it had to agree unanimously on any "mitigating" circumstance that might have persuaded jurors to decide on life rather than death.
And in turn, Yohn said that Abu-Jamal should be sentenced to life, instead of death, or get a new hearing only on what his sentence should be.
The Third Circuit panel - Chief Judge Anthony J. Scirica and Judges Thomas L. Ambro and Robert E. Cowen - peppered the lawyers with questions about the ambiguous jury instructions and whether the prosecutor made unfair remarks during his closing argument.
A decision is not expected for several months.
But it was questions about jury selection that dominated the argument. All three judges have granted relief to death-row inmates in cases in which they found that prosecutors had unfairly struck jurors for racial reasons.
Burns contended that the trial prosecutor, Joseph McGill, had wanted blacks on the jury, but Bryan argued the case was infused with racial elements at a time when the District Attorney's Office was known for trying to exclude blacks from juries.
"Discrimination was at work by the D.A.'s office during this period," said Bryan.
The Third Circuit will now review Yohn's reasoning on the jury instructions, and also 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 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.
Even if the court upholds the death sentence, Abu-Jamal could attempt to persuade the U.S. Supreme Court to hear the case, or try to go back again to the Pennsylvania Supreme Court, where he still has one petition pending.