Abu-Jamal gets chance to escape death row

Philadelphia District Attorney Seth Williams said he kept a campaign promise Tuesday. He made a telephone call to Maureen Faulkner and asked her what to do about Mumia Abu-Jamal.

Leave him to spend life in prison, he asked, or keep seeking the death penalty for the murder of her husband, Police Officer Daniel Faulkner, in 1981?

She chose the death penalty, Williams said.

It means the case of Abu-Jamal, now 57 and perhaps the best-known death-row inmate in the world, is headed back to the U.S. Supreme Court. So intricate is the legal wrangling that any final resolution is likely years away.

Williams' early-morning conversation was prompted by a federal appeals court's just-released decision that a new jury should be impaneled to reconsider whether Abu-Jamal receives a death sentence or life in prison.

It was the second time the U.S. Court of Appeals for the Third Circuit had ruled for Abu-Jamal on the issue, both times citing confusing language in the 1982 jury instructions. The first decision, in 2008, was overturned by the Supreme Court, which told the Third Circuit Court to reconsider in light of a more recent ruling by the high court.

It did, and it came to the same conclusion.

Now, Williams will ask the Supreme Court to overturn the appellate court again.

He could have done otherwise.

He said the 32-page Third Circuit ruling left him with three choices: Drop the legal battle and leave Abu-Jamal to serve a life sentence; impanel a new jury and again seek the death penalty; or appeal to the Supreme Court to uphold the death sentence.

Williams said Maureen Faulkner deserved a say because the 30-year legal battle had "victimized" her.

The conviction and death sentence of the former radio reporter, who turned to radical politics and the MOVE organization, has been a worldwide cause célèbre. Williams dismissed as misplaced any belief that Abu-Jamal is innocent.

"This is not a whodunit," he said.

"It's really an unfortunate fact that, yes, the criminal justice system in Philadelphia . . . in America has a history of problems and racism. I understand all of that. This is not one of those cases."

He said Faulkner was "devastated" by the appeals court decision and "was crying while I was speaking with her."

"She believes that the court again is being intellectually dishonest. . . . If the courts don't believe there should be a death penalty, they should just say that," he said.

Faulkner did not immediately return a telephone call seeking comment.

While about 220 people are on death row in Pennsylvania, no one has been executed in the state since 1999, when serial killer Gary Heidnik gave up his appeals.

Abu-Jamal's conviction remains in effect, and he remains on death row at the state prison in Waynesburg in southwest Pennsylvania.

Abu-Jamal's lead attorney said the Third Circuit decision reinforced rulings that "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," Widener University law professor Judith Ritter wrote via e-mail.

As it had before, Abu-Jamal's legal team argued that confusing instructions to the jurors encouraged them to choose death rather than a life sentence.

In capital cases, jurors first must check a box to declare whether they unanimously agree to a guilty verdict.

Then they must declare whether they find any mitigating circumstances favoring a life sentence rather than the death penalty. They need not agree unanimously which mitigating circumstances they will consider, only that such circumstances exist.

Abu-Jamal's attorneys say that written instructions in 1982 did not make that clear, and that jurors believed they could not debate mitigating circumstances.

The Third Circuit decision offers a forceful defense of Ritter's argument:

"We conclude the verdict form and jury instructions in this case . . . created a substantial probability the jury believed it was precluded from finding a mitigating circumstance that had not been unanimously agreed upon."

The Third Circuit Court also called its decision consistent with the 2010 Supreme Court decision in an Ohio case that it was ordered to consider.

The court also noted that Pennsylvania changed its jury instructions in 1989.

"Courts now use clear and unambiguous language to advise sentencing juries about their ability to consider evidence that favors a life verdict. Mr. Abu-Jamal is entitled to no less constitutional protection," Ritter said after the Third Circuit decision.