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Round Two: Third Circuit Court Panel Re-Hears Issue of Abu-Jamal's Death Penalty on Orders of Supreme Court

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.

Though the Third Circuit denied Abu-Jamal's efforts to overturn his conviction, the 2008 ruling on the death penalty was nonetheless widely seen as a victory for Ahim 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 new wrench into the case, ruling in an Ohio murder case involving Frank Spizak, a neo-Nazi (he sported a Hitler mustache at his trial) once sentenced to death for random killings of Jews and blacks, 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.

Mumia Abu-Jamal, on Pennsylvania's death row for 29 yearsMumia Abu-Jamal, on Pennsylvania's death row for 29 years

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.

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