PHILADELPHIA – Police widows and supporters of death-row activist Mumia Abu-Jamal listened Tuesday as federal appeals judges debated whether the former Black Panther deserves a new sentencing hearing in a police officer's death.
The appeals court had granted the new sentencing hearing on the grounds that the jury at Abu-Jamal's 1982 trial was not given proper death-penalty instructions. But the U.S. Supreme Court this year, in rejecting a similar Ohio case, ordered the 3rd U.S. Circuit Court of Appeals judges to rethink its decision.
Under Pennsylvania law, Abu-Jamal should have received a life sentence if a single juror found the mitigating circumstances outweighed the aggravating factors in the slaying of Officer Daniel Faulkner.
In 2008, the three-judge appeals panel found the verdict form potentially misleading, given its repeated use of the word "unanimous," even in the section on mitigating circumstances. But the Supreme Court, as Senior Judge Robert Cowen noted Tuesday, "pooh poohed" that reasoning.
Nonetheless, the judges still seemed to see significant differences between the Abu-Jamal and Ohio cases.
"This court already agreed with (our argument), and it seems to me that they don't see any reasons to change their minds," Judith Ritter, a law professor who represents Abu-Jamal, said after the hourlong hearing.
Philadelphia prosecutor Hugh J. Burns Jr., though, called the jury instructions in the two cases nearly identical.
"They were never told they had to be unanimous on each mitigating circumstance," Burns said of the Abu-Jamal case.
A federal judge is 2001 first ruled that Abu-Jamal, 56, should get a new sentencing hearing because of the jury instructions.
On the verdict form, under a section that begins, "We, the jury, have found unanimously ...," the jury said it found the aggravating factors outweighed the mitigating ones. The jury listed Faulkner's death on duty as the lone aggravating factor and Abu-Jamal's prior clean record, at age 27, as the sole mitigating factor.
The possible jury instructions flaw has turned into Abu-Jamal's most fruitful avenue of appeal to date. He has so far failed with his broader argument: that racism by the trial judge and prosecutors corrupted his conviction at the hands of a mostly white jury.
Faulkner, a white 25-year-old patrolman, had pulled over Abu-Jamal's brother on a darkened downtown street in 1981. Prosecutors say Abu-Jamal saw the traffic stop and shot Faulkner, who managed to shoot back. A wounded Abu-Jamal, his own gun nearby, was still at the scene when police arrived.
Abu-Jamal's writings and radio broadcasts from death row have made him a cause celebre and the subject of numerous books and movies. Hundreds of death-penalty opponents and other supporters demonstrated outside the courthouse before and after the hearing, waving banners and shouting "Free Mumia!"
Meanwhile, inside the courtroom Tuesday, two police widows sat behind Burns.
Both Maureen Faulkner and Kimmy Pawlowski were 25 when their police-officer husbands were slain in Philadelphia. Each man had been on the job five years.
A jury deadlock on Monday led a judge to spare the life of the man who fatally shot John Pawlowski last year. The verdict distressed his widow, who was pregnant with their first child when her husband died.
Meanwhile, Maureen Faulkner has spent much of her life monitoring Abu-Jamal's death-row appeals, returning to Philadelphia from the West Coast when necessary. Monday marked her 31st wedding anniversary.
"To think that I'm sitting in a courtroom at age 54," she told The Associated Press. "People need not to forget that my husband was laying on a street in Philadelphia and this man bent over and shot him, within inches, between the eyes. With malice. He wanted to murder my husband."
Amnesty International, which published a study of the case in 2000, issued a statement Tuesday supporting the inmate's appeal.
"While Amnesty International does not take a position on guilt or innocence, the organization maintains that Abu-Jamal's original trial, which was irredeemably tainted by politics and race, failed to meet international fair trial standards," said Laura Moye, director of Amnesty International USA's Death Penalty Abolition Campaign.