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3rd Circuit Court of Appeals Slaps Supreme Court

A Victory for Mumia

by LINN WASHINGTON, Jr.

The federal Third Circuit Court of Appeals in Philadelphia, in a stunning smack at the U.S. Supreme Court, has issued a ruling upholding its earlier decision backing a new sentencing hearing in the controversial case of Mumia Abu-Jamal, the convicted killer of Philadelphia Police Officer Daniel Faulkner.

The latest ruling, issued on Tuesday April 26, 2011, upholds a ruling the Third Circuit issued over two years ago siding with a federal district court judge who, back in 2001, had set aside Abu-Jamal’s death penalty after determining that death penalty instructions provided to the jury, and a flawed jury ballot document used during Abu-Jamal’s 1982 trial, had been unclear.

The U.S. Supreme Court had ordered the Third Circuit to re-examine its 2009 ruling upholding the lifting of Abu-Jamal’s death sentence.

The nation’s top court had cited a new legal precedent in that directive to the Third Circuit, a strange order given the fact that the Supreme Court had earlier consistently declined to apply its own precedents to Abu-Jamal’s case.

Philadelphia District Attorney Seth Williams said that, honoring a "campaign promise," he had asked Faulkner’s widow Maureen Faulkner what her wishes were, and in response to her request was appealing the decision back to the US Supreme Court.

Abu-Jamal’s current lead attorney, Prof Judith Ritter of the Widener Law School, said of the decision, "Each of the four federal judges that has reviewed Mr. Abu-Jamal’s case has found his death sentence to be unconstitutional. The Third Circuit’s most recent opinion reflects a detailed analysis demonstrating that their unanimous decision is well-supported by Supreme Court precedent. We believe this carefully reasoned analysis will stand."

The Third Circuit’s ruling, if left standing, allows Philadelphia prosecutors to call for a whole new sentencing hearing if they want to try and reinstate the death penalty. That would require the impaneling of a whole new jury, to hear and consider evidence regarding mitigating circumstances and aggravating circumstances in the case, and then to decide for either execution of life-without-possibility of parole–the only two options legally available. Abu-Jamal has exhausted his avenues of appeal of his conviction, absent new evidence in the case.

If prosecutors opted against holding new hearing then Abu-Jamal’s sentence would be converted automatically to a life sentence, which in Pennsylvania means no chance of parole. Abu-Jamal would have to spending the remainder of his life behind bars, though not on death row.

Experts contend a new sentencing hearing would be problematic for prosecutors. Although the issue of guilt or innocence would not be on trial, the defense could bring in witnesses to explain exactly what they saw happen the night of the shooting–witnesses whose testimony could ultimately raise new questions about the validity of the underlying conviction.

The Supreme Court does not have to accept an appeal, and could opt to let the latest ruling stand, or it could again reverse the three-judge panel, whose members were appointed by Presidents Reagan, Bush, Sr., and Carter. In any event, whatever happens next, prosecutors concede that current and yet unresolved legal issues in this case, which continues to attract unprecedented international scrutiny, will keep it in courts for years. For example, there are several avenues of appeal of Abu-Jamal’s death sentence which were never adjudicated by the Federal District court. District Judge William Yohn mooted them in 2001 after he had found in favor of one argument and tossed out the death sentence.

In early April 2011 the NAACP Legal Defense Fund publicly announced it was joining the Abu-Jamal defense team and working with Professor Ritter. NAACP lawyers had joined Ritter last fall during the hearing where she argued the legal point just upheld by the Third Circuit in its latest ruling.

Recently Abu-Jamal recorded yet another birthday (4/24) inside a death row isolation cell. Abu-Jamal and the 222 other Pennsylvania death row inmates spend 23-hours per day every day isolated inside minimalist cells.

Since 1983 Abu-Jamal has languished in the confinement of death row, following his controversial July 1982 conviction for the murder of Officerl Faulkner.

Now 57, Abu-Jamal has spent nearly 29 years of his life in prison for a crime he has consistently denied committing–a crime that ample evidence conclusively proves could not have occurred as police and prosecutors have proclaimed.

Authorities, for example, claim Abu-Jamal fired four shots at the policeman, while straddling the officer as he lay defenseless on a sidewalk, striking him only once with a fatal shot in the face.

However, police crime scene photos and police reports make no reference of any bullet marks in that sidewalk around the fallen officer–marks that should have been clearly visible if Abu-Jamal fired three shots at almost point-blank range into the sidewalk as witnesses and the prosecutor claimed.

As detailed in an thorough investigative ballistic test released in September 2010 by This Can’t Be Happening! (See our film at the bottom of the home page), it is impossible to fire high-velocity bullets into a sidewalk without leaving any marks. TCBH! test-fired each kind of .38-caliber bullets referenced in police reports about the 1981 crime scene into a slab of old city sidewalk, and each of those bullets left easily visible marks…marks totally contradicting claims by authorities that Abu-Jamal wildly fired into the sidewalk without leaving bullet marks.

Rulings by federal and state courts denying Abu-Jamal the legal relief routinely granted other inmates who had raised the same appeals claims are the least-examined element of this internationally-condemned injustice.

The same Philadelphia and Pennsylvania courts that found major flaws by either defense attorneys, police, prosecutors and/or trial judges in 86 Philadelphia death penalty convictions during a 28-year period after Abu-Jamal’s December 1981 arrest declare no errors exist anywhere in the Abu-Jamal case – an assertion critics call statistically improbable.

The federal Third Circuit, for example, declined to grant Abu-Jamal a new trial based on solid legal issues from racial discrimination by prosecutors in jury selection to documented errors by trial judge Albert Sabo, the late jurist who relished his infamous reputation for pro-prosecution bias.

The Third Circuit’s 2008 ruling faulting Sabo for his inability to provide the jury with simple death penalty deliberation instructions included the contradictory conclusion that Sabo had adequately provided the jury with instructions about a highly complicated legal issue involving misconduct by the trial prosecutor.

Faulting Sabo for that flawed instruction on prosecutorial misconduct would have required the Third Circuit to give Abu-Jamal a whole new trial. Unwilling to do that, the court sidestepped its duty to ensure justice, by deciding to just eliminate Abu-Jamal’s death sentence, instead.

Pennsylvania state courts have released three Philadelphians from death row (half of Pa’s death row exonerations to date) citing misconduct by police and prosecutors…misconduct that was less egregious than that documented in the Abu-Jamal case. One of those Philadelphia exonerations involved a man framed by police for a mob-related killing, who was arrested six months before Abu-Jamal.

While many people in Philadelphia may feel Abu-Jamal is guilty as charged, millions around the world question every aspect of this conviction, citing facts that proponents of Abu-Jamal’s conviction deliberately dismiss as irrelevant.

This widespread questioning of Abu-Jamal’s guilt is the reason why pro-Abu-Jamal activities occurred around the world commemorating Abu-Jamal’s 4/24 birthday, including people in San Francisco attending a screening of the "Justice on Trial" movie examining ignored aspects in the case, and people marching for Abu-Jamal’s freedom in the Brixton section of London.

Officials in the French city of Saint-Denis will stage a ceremony rededicating a street they named for Abu-Jamal during the last weekend in April.

The ire erupting over Abu-Jamal’s prominence on the part of advocates of his execution contains contradictions that are as clear as the proverbial black-&-white.

The U.S. Congress engaged in color-coded contradiction approving a May 2006 resolution condemning far off Saint-Denis for its honoring Abu-Jamal by placing his name on a small one block long street.

Over a decade before that anti-Saint-Denis outrage, over 100 members of Congress had battled to block the U.S. government from deporting a white fugitive convicted of killing a British Army officer in Belfast, Northern Ireland.

That officer’s killing had occurred during an investigation into the murder of another Belfast policeman.

Incidentally, the U.S. Congress did not erupt angrily when the City Council of New York City voted to place the name of that fugitive – Joseph Doherty – on the street corner outside the federal detention center then housing him.

In 1988 – six years after Abu-Jamal’s conviction – more than 3,000 Philadelphians signed petitions asking federal authorities to grant Doherty special permission to leave his federal detention cell for one day to allow Doherty to serve as Grand Marshall of Philadelphia’s St Patrick’s Day Parade.

One Philly supporter of suspected convicted cop killer Doherty was the then-President Judge of Philadelphia’s trial courts, Edward J. Bradley.

Judge Bradley told a reporter in 1988 that he had no problems as a jurist reconciling his support for a convicted felon because he questioned the "fair treatment" Irish nationals received in English courts.

Judge Bradley’s concern about fairness for IRA fighters in English courts is not parallelled by any concern about fairness in Philadelphia courts with regard to the case of former Black Panther Party member Abu-Jamal. Judge Bradley’s double standard highlights the gross unfairness of Philadelphia and Pennsylvania state court judges.

Critics who castigate those who contribute to Abu-Jamal’s defense fund, especially by Hollywood stars, did not object to fund-raising on behalf of one of the white Los Angeles policemen convicted in federal court for the 1991 beating of Rodney King. That criminal cop was allowed to keep nearly $10-million in sales from his book and from a fund-raising campaign on his behalf – monies generated mainly after that the former police sergeant’s imprisonment following a civil rights violation conviction.

One reason the decades-old Abu-Jamal case continues to generate support and rage is Abu-Jamal himself.

A charismatic figure who is articulate, with a level of education and intelligence atypical of the mainly illiterate denizens of death row, Abu-Jamal is able to explain his case, as well as to expose the horrors of the nation’s prison system and its death rows.

While on death row Abu-Jamal has written six critically acclaimed books (including one on jailhouse lawyers), produced thousands of commentaries, learned two foreign languages, earned two college degrees, including a masters, and developed a loyal support network comprising millions worldwide.

Even the prosecutor at Abu-Jamal’s 1982 trial – Joseph McGill – described him during that trial as the most "intelligent" defendant he’d ever faced.

And another prosecutor, during Abu-Jamal’s tainted 1995 appeals hearing, said he didn’t think "the shooting of Officer Faulkner is characteristic of this defendant." (Abu-Jamal had no record of violence or criminal acts before his 1981 arrest.)

Supporters applaud Abu-Jamal’s defense of the downtrodden, particularly his poignant criticisms of America’s prison-industrial complex, that incarcerates more people per capita than any other country on earth.

Abu-Jamal’s stance highlighting the deprivations of the have-nots, predated his arrest, and had earned him the title of "Voice of the Voiceless" during his professional broadcast reporting career, which ran from 1975 till his December 1981 arrest.

Abu-Jamal rarely uses his world-wide platform to speak about his own plight, preferring to focus instead on the injustices endured by others.

LINN WASHINGTON, Jr. is a founding member of ThisCantBeHappening