The Mumia morass becomes more muddied

Mumia Abu-Jamal

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By Theresa Conroy
conroyt@phillynews.com

THE FIRST TIME around, Mumia Abu-Jamal did little to try to save his life.

Now, with thousands all over the world trying to save the famous cop-killer, it wonít be easy to put Abu-Jamal back on Death Row if he ever gets the new sentencing hearing ordered yesterday by a federal judge.

U.S. District Judge William Yohn upheld Abu-Jamal's conviction but ordered a resentencing because the instructions given before deliberations in the first sentencing hearing may have confused the jury.

Both sides have promised to appeal, so there's no guarantee that Abu-Jamal will ever get the new sentencing hearing.

"We're taking an appeal so thereís not going to be any hearing," asserted Philadelphia District Attorney Lynne Abraham.

During Abu-Jamal's original sentencing in 1982 - the proceeding Yohn said had been flawed - the 27-year-old cab driver and unemployed radio journalist would not allow anyone to testify on his behalf. Only the defendant, seething and offensive, took the stand that summer day.

He railed against the system, insulted the jurors, supported the MOVE organization and yelled at the judge.

A new sentencing hearing likely would be far different.

A new jury would be empaneled and a new judge would likely preside. Abu-Jamal's new lawyers, Eliot Lee Grossman and Marlene Kamish, would almost certainly provide a flashy defense - one worthy of the Court TV coverage they're likely to get. The two provided a peek into their dramatic style this summer during a minor hearing. Afterward, they took to the microphones outside to rally hundreds of Abu-Jamal supporters.

Kamish, of Pittsburgh, and Grossman, of Alhambra, Calif., did not return phone calls yesterday from the Daily News.

Prosecutors, meanwhile, would have to present much of the same evidence they used to convict Abu-Jamal of the murder, making the hearing resemble a full-blown murder trial.

"Obviously anything is more difficult 20 years later," Abraham said.

For the district attorney's office, a new hearing would mean rounding up witnesses with 20-year-old memories and staring down two decades of myths that have surrounded the case.

"It's always hard to have to put together a case so long after the original events; that's why the delay of so many appeals in the capital process is such a problem and so wearing on the victims," said Deputy District Attorney Ron Eisenberg.

The penalty phase of a trial normally follows a first-degree murder conviction. The jury, having just heard and decided the facts of the case, immediately hears testimony pertaining to "aggravating" and "mitigating" circumstances of the murder. If the jury decides the aggravating circumstances outweigh the mitigating, it must impose death.

In Abu-Jamal's original sentencing hearing, he would not permit mitigating circumstances to be presented.

Resentencing hearings are not unusual in Philadelphia.

"A jury will probably have to be picked, and that jury will have to be told about the case. They'll have to be told facts of the case," said Eisenberg, who worked on the Abu-Jamal appeals.

The mini-trial must occur "to get the jury up to speed and to get them to see this as the kind of killing that would warrant the death penalty," said Anne Bowen Poulin, a Villanova Law School professor who specializes in criminal procedure.

The new hearing, Eisenberg said, would be "somewhat like a trial, but the question of guilt or innocence is not at issue."

Try telling that to the defense.

Abu-Jamal's defense attorneys, also planning to appeal's Yohn decision in an attempt to obtain a full retrial, want to turn this mini-trial into a rehashing of the facts of the case, said J. Michael Farrell, Abu-Jamal's local counsel.

The defense, Farrell said, would want to show "residual doubt" over guilt or innocence as a mitigating factor in the sentence.

"A penalty hearing in this case would be a full-blown trial as to guilt and innocence," he said. "A witness list might read like a who's who."

One likely name on that list would be that of Abu-Jamal's brother, William Cook. Faulkner's traffic stop of Cook on Dec. 9, 1981, led to Faulkner's murder. Cook has never testified about what happened that night.

Staff writer Ron Goldwyn contributed to this report.

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