http://www.thiscantbehappening.net/node/300
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. 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 once sentenced to death for random killings
of jews and blacks who had attended his trial wearing a Hitler mustache, 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 2008 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." After which Judge Ambro said, "For
example, the word `unanimous' was not used in Spizak." Judge Cowen added, "In
our case, `unanimity' was used time and time again, and in quite close proximity
to where you find things about mitigating circumstances." Of course, even if the
three judge panel decides to reaffirm it's 2008 decision, the DA's office will
almost certainly appeal again to the Supreme Court, where the same five judges
who ruled against Spizak and referred the Abu-Jamal case back to the Third
Circuit panel could vote to reverse the Third Circuit. In that event Abu-Jamal
would have his death penalty reinstated. If the high court agreed with the Third
Circuit, or if it chose not to take the case and let the ruling stand, then the
DA would have to decide whether to leave Abu-Jamal with a life sentence, or to
ask for a new penalty phase trial, which would take place back in state court.
The defense is hoping for a retrial of the penalty, since that would at least
offer Abu-Jamal the chance to introduce new evidence regarding the shooting of
Police Officer Daniel Faulkner. For example, the prosecution made a big point of
highlighting the testimony of two witnesses, prostitute Cynthia White and taxi
driver Robert Chobert, who both described the shooting of Faulkner by Abu-Jamal
as an "execution," with Abu-Jamal standing astride the fallen cop and firing
repeatedly at him at nearly point-blank range. The problem with that story is
that only one bullet--the one that struck Faulkner in the middle of his
forehead--hit the officer, yet there no bullet impacts can be seen in crime
scene photos of the area on the sidewalk where Faulkner lay, and police
investigators reported finding no such marks either. A test of a gun similar to
Abu-Jamal's, firing similar metal-clad, high-velocity Plus-P ammunition at a
section of old sidewalk concrete, proves that such impact marks should have been
clearly visible. While a rehearing of the penalty phase of the trial would not
be able to directly raise the issue of guilt, in a penalty phase re-hearing, the
defense could be expected to present evidence that the "execution" scenario
presented to the jury by the prosecution simply couldn't have happened, and
witnesses would likely be called to challenge the story. That in turn would
raise the risk, for the prosecution, that evidence -- or a witness recantation
-- could open the door to a new challenge to Abu-Jamal's conviction. Even if the
Third Circuit or the US Supreme Court rules against Abu-Jamal, and his original
death sentence is reinstated, it is not the end of the road in this long-running
case, however. Back on December 18, 2001, when Federal District Judge Yohn
tossed out Abu-Jamal's death penalty, he noted in his ruling that he had
"mooted" four other defense claims of unconstitutional flaws in his death
penalty hearing, on the grounds that there was no need to examine these, since
he had already decided to vacate the penalty. As Abu-Jamal defense team attorney
Christina Swarns notes, "We have an absolute right to have those claims
considered." In other words, if the death penalty is reaffirmed, Abu-Jamal will
be back before Judge Yohn again, where other powerful and compelling objections
to the way his initial trial was conducted will have to be reviewed. Among the
complaints: Prosecutor Joseph McGill's use of a statement made by Abu-Jamal when
he was only 15, quoting Chinese Chairman Mao Tse-tung that "Power flows from the
barrel of a gun," in an effort to sway jurors towards imposing a death penalty.
The rushing of the case and the inadequacy of Abu-Jamal's legal counsel,
attorney Anthony Jackson, with Judge Sabo ordering the penalty phase hearing to
begin the day following the jury's guilty verdict, and Jackson not requesting a
delay to allow him to prepare. As a result, Jackson called not one character
witness to allow Abu-Jamal to develop a case for mitigating factors. Prosecutor
McGill improperly advised jurors, with the approval of the judge, that they were
"not asked to kill anybody," because there would be "appeal after appeal after
appeal." The Supreme Court and the Third Circuit, as well as the Pennsylvania
Supreme Court, have all repeatedly overturned death sentences because of
prosecutors making similar statements to juries, on the grounds that it tends to
remove from jurors any sense of the moral consequences of their profound
decision. Finally the defense made the claim that the prosecution withheld form
the defense information it had that local police and the FBI had called off
years of surveillance of Abu-Jamal after concluding that, as the FBI put it in a
note calling off monitoring of Abu-Jamal, ""In March 1973, per bureau
instructions, captioned subject (Abu-Jamal) was deleted from ADEX and no
additional investigation conducted concerning his activities. Sources, however,
have continued to report periodically on COOK (Abu-Jamal's family name) and,
although he has not displayed a propensity for violence, he has continued to
associate himself with individuals and organizations engaged in Extremist
activities." As Asst. DA Burns has said, "This case will go on for years."
No comments:
Post a Comment