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A federal judge ruled Tuesday that Mumia Abu-Jamal — perhaps the world’s most famous death row inmate — deserves a new sentencing hearing, because the jury that sentenced him to die in 1982 for killing Philadelphia police officer Daniel Faulkner received faulty jury instructions on the issue of how to deliberate during the penalty phase. U.S. District Judge William H. Yohn Jr. of the Eastern District of Pennsylvania found that the jury instructions and the verdict form could have left jurors with the incorrect perception that they needed to be unanimous on any “mitigating factor” that would support a vote against death. Yohn found that such jury instructions violate the U.S. Supreme Court’s 1988 decision in Mills v. Maryland. “The jury charge and verdict form in this case created a reasonable likelihood that the jury believed that it was precluded from considering a mitigating circumstance that had not been found unanimously to exist,” Yohn wrote in Mumia Abu-Jamal v. Horn. The jury instructions were faulty, Yohn found, because they were “ambiguous, allowing for a jury to infer that the requirement of unanimity applies both to aggravating and mitigating circumstances,” which Mills specifically prohibited. Yohn found that the Pennsylvania Supreme Court failed to address the controlling standard for evaluating a Mills claim and “compounded this error by unreasonably failing to perceive the probable impact of the verdict form on the jury’s impression regarding the need for unanimity.” As a result, Yohn said he was “compelled to conclude that the decision of the Pennsylvania Supreme Court in this case … cannot reasonably be justified under existing United States Supreme Court precedent” and was therefore “an objectively unreasonable application of federal law.” But the 272-page decision is otherwise a major victory for the Philadelphia District Attorney’s office because Yohn rejected 28 of the 29 claims in Abu-Jamal’s habeas corpus petition, including claims that the prosecutor improperly used his peremptory strikes to keep blacks off the jury, and that the trial judge violated his rights by repeatedly removing him from the courtroom due to his angry outbursts. Significantly, Yohn also refused to consider Abu-Jamal’s most recent claim — that he has “newly discovered” evidence that Faulkner was murdered by Arnold Beverly, a Mafia hit man. Yohn found that the new claim was made too late and that even if Beverly had testified at his trial, the jury could have rejected his story because it wasn’t corroborated by the accounts of the four eyewitnesses called by the prosecution. Abu-Jamal is the third Pennsylvania death row inmate to win a new sentencing hearing this year on the basis of a Mills violation. And according to a recent brief filed by the Pennsylvania Attorney General’s office, there are at least 30 more similar cases in the federal pipeline in which the Pennsylvania Supreme Court has rejected a Mills claim when affirming a death sentence. OTHER CASES In August, U.S. District Judge John R. Padova overturned Richard Hackett’s death sentence after finding that the Pennsylvania Supreme Court’s analysis of the Mills claim in his case was an “unreasonable” application of federal law. In October, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals also found a Mills violation when it overturned George Banks’ death sentence for 12 murders in Pennsylvania’s Luzerne County. Remarkably, the opinion by 3rd Circuit Judge Marjorie O. Rendell in Banks quoted extensively from Padova’s opinion in Hackett, strongly suggesting that the appellate court is poised to uphold his decision when it comes up for review sometime next year. The Luzerne County District Attorney’s office urged the appellate court to rehear the Banks case en banc, saying the 12 death sentences imposed on Banks had been “erased through the retroactive application of a federal rule that did not even exist until 1988.” The Pennsylvania Attorney General’s office joined that request by filing an amicus brief that said the panel erred because Mills was handed down after Banks had already completed his direct appeal. In the brief, Assistant Executive Deputy Attorney General Robert A. Graci argued that if the Banks decision stands it will “directly impact at least 30 cases in which the Pennsylvania Supreme Court rejected Mills challenges.” Graci argued that the federal courts should be more deferential to the Pennsylvania Supreme Court, especially since it has found valid Mills violations in three cases, and its analysis of the issue should not be labeled unreasonable. Just last week, the 3rd Circuit voted against rehearing Banks’ case. Only one of the court’s 12 active judges, Chief 3rd Circuit Judge Edward R. Becker, voted in favor of rehearing. NO NEW TRIAL Tuesday’s decision by Yohn is a major setback for Abu-Jamal because it rejected every one of his arguments aimed at winning a new trial. Of the 28 rejected claims, Yohn found that only one — an alleged Batson violation — is worthy of appealing. Practically speaking, that means that Abu-Jamal has a significantly higher hurdle to clear if he wants to raise any of the other 27 claims in his appeal, because Yohn refused to “certify” that they had any arguable merit. Before tackling the legal issues, Yohn laid out a chilling account of Abu-Jamal’s crime. On Dec. 9, 1981, on Locust Street between 12th and 13th streets in Philadelphia’s Center City area, Officer Faulkner pulled over a vehicle driven by Abu-Jamal’s brother, William Cook. Faulkner called for backup and Cook exited his vehicle and scuffled with Faulkner. Seeing the altercation, Abu-Jamal ran to the scene from a parking lot across the street. As Abu-Jamal approached Faulkner, he shot him in the back, Yohn said. While falling, Faulkner fired at Abu-Jamal and struck him in the chest. Abu-Jamal then stood over the fallen Faulkner and fired four more shots, the first of which entered Faulkner’s brain between his eyes, the opinion said. Wounded, Abu-Jamal then walked several steps away from the dying officer and dropped down, sitting on the curb. Cook remained on the scene standing near the wall of the adjacent building. Within one minute of Faulkner’s radio call, Officers Robert Shoemaker and James Forbes approached the scene, where a cab driver advised them that an officer had been shot. Faulkner was taken to Philadelphia’s Jefferson Hospital immediately, and later was pronounced dead. As Shoemaker approached, Abu-Jamal reached for something on the sidewalk. Despite Shoemaker’s repeated orders to “freeze,” Abu-Jamal continued to move toward the object. Drawing closer, Shoemaker identified the object as a gun, and kicked Abu-Jamal in the chest to get him away from it before kicking the gun out of his reach, Yohn wrote. At trial, prosecutors presented four eyewitnesses, including Cynthia White, who testified that she witnessed Abu-Jamal run out of a parking lot as Faulkner attempted to subdue and handcuff Cook. Robert Chobert testified that he heard a shot, looked up, saw the victim fall, and then saw Abu-Jamal shoot Faulkner in the face. Priscilla Durham, a security guard on duty at Jefferson Hospital, also testified that when Abu-Jamal was brought there, he said: “I shot the motherf—er, and I hope the motherf—er dies.” The statement was also heard by Officer Gary Bell, who testified that he responded: “If he dies, you die.” REJECTED CLAIMS Most of Yohn’s opinion is devoted to discussion of the claims he rejected. In his Batson claim, Abu-Jamal complained that Assistant District Attorney Joseph McGill peremptorily struck only four of 28 white potential jurors, but struck 11 of 15 black jurors. But Yohn found that the Pennsylvania Supreme Court correctly rejected that claim, because Abu-Jamal had failed to meet the first prong of the Batson test, in part because Abu-Jamal’s own lawyer had used a peremptory strike to keep a black juror from serving who was acceptable to the prosecution. “The Pennsylvania Supreme Court obviously applied the correct legal standard,” Yohn wrote. “Moreover, the facts of [Abu-Jamal's] case are different from those in Batson, because the prosecutor in Batson used his peremptory challenges to strike all four black members of the venire, resulting in that defendant’s trial and conviction by an all white jury.” Among the other rejected claims were Abu-Jamal’s claim that eyewitness Cynthia White received favors from the government in exchange for false testimony and that two witnesses have stated that White was not even at the scene of the shooting. “I cannot say that either the jury or the judge at the PCRA hearing — each of whom was able to observe White’s demeanor on the witness stand for over two days — was unreasonable in credit[ing] her trial testimony, including her statement that her testimony was not offered due to fear of, or favor from, the Philadelphia District Attorney,” Yohn wrote. Yohn also rejected claims that witnesses were coerced; that police hid ballistics evidence; and that the prosecutor crossed the line in some of his remarks during closing arguments. Abu-Jamal also claimed his rights were violated by the trial judge who expelled Abu-Jamal from the courtroom on five consecutive days, and that during his absences he was unable to monitor the trial or communicate with back-up counsel. But Yohn found that the Pennsylvania Supreme Court correctly rejected that claim after finding that the trial judge’s actions were within the permissible bounds defined by the U.S. Supreme Court in the 1970 decision in Illinois v. Allen. “I conclude that the state court’s decision to remove petitioner was not contrary to or an unreasonable application of Allen,” Yohn wrote. “Allen holds that it is constitutionally permissible to remove an obstructive defendant from the courtroom after he has been warned that his continued behavior would lead to removal. This is precisely what happened in this instance. Petitioner was warned repeatedly that his disruptions would lead to his removal.” On one occasion, Yohn noted, Abu-Jamal responded: “Judge, you can remove me again and again and again and again and again and again” — a remark that Yohn found “indicat[ed] that he intended to continue his outbursts.” And each time Abu-Jamal was removed, Yohn said, the trial judge instructed the jury to draw no adverse inference from his absence. “Finally, [Abu-Jamal] was given every opportunity to return to the courtroom if he was willing to behave,” Yohn wrote.

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