Neither side happy with judge's ruling

Widow outraged; Mumia fans seek retrial

Death row inmate Mumia Abu-Jamal, who will get new sentencing hearing

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By JIM SMITH, RON GOLDWYN, DANA DiFILIPPO & NICOLE WEISENSEE EGAN

A federal judge's long-awaited ruling on whether former Black Panther and journalist Mumia Abu-Jamal received a fair trial 19 years ago for the murder of police officer Daniel Faulkner pleased neither side in the case that has attracted worldwide attention.

Abu-Jamal, a MOVE sympathizer and former radio host, claims he's innocent. But U.S. District Judge William H. Yohn Jr. denied him a new trial for Faulkner's murder on a Center City street on Dec. 9, 1981. He ruled only that the convicted killer deserved a full-blown sentencing hearing at which a new jury could set the penalty at either life in prison or death.

"Of course I'm outraged. I'm angry, frustrated, sad, heartbroken," said Maureen Faulkner, the victim's widow. "I think what a sick person he is to make a decision like this the week before Christmas." The judge, she said, "wasn't thinking of Danny's family.

Her concerns were echoed by some local police officers. "Basically, it's a helluva Christmas present for every police officer in the country," said Fraternal Order of Police President Richard Costello. "We now know a murdered police officer is not going to get justice in federal court."

District Attorney Lynne Abraham said she was "completely dismayed" that such a ruling would be made after almost two decades of appeals for the convict in various courts.

"His case was thoroughly reviewed by the state Supreme Court. It was reviewed innumerable times by the state post-conviction court, where weeks of hearings were convicted," Abraham said.

She went on to say, "Although Jamal has never testified himself at any of these many, many proceedings and never produced his own brother, who was present at the time of the murder, he has offered up various individuals who would claim that one trial witness or another must have lied, or that some other individual has only recently been discovered who has special knowledge about the murder."

Temple University law professor David Kairys said Yohn's ruling showed "a very clear error" that prevented Abu-Jamal from getting a fair sentence. "What really happened here is Mumia Abu-Jamal just got the same rules applied to him that apply to everybody else," Kairys said. "They're not technicalities; they really go to the heart of whether the jury meant to impose the death penalty or not."

Yohn has had the case under review for about two years.

In a 270-page opinion filed yesterday in federal court in Philadelphia, the judge rejected 20 legal arguments that Abu-Jamal had been denied a fair trial.

These arguments ranged from alleged use of a fabricated confession to ineffective assistance of trial counsel.

The judge concluded that earlier state court rulings on these issues were "not unreasonable."

A jury had found that Abu-Jamal shot and killed Faulkner near 13th and Locust streets after the officer stopped a car driven by Abu-Jamal's brother, William Cook. Prosecutors alleged that Abu-Jamal, who had lost his job as a local public radio news reporter and was working as a cab driver, shot the officer in the back, only to be wounded in the chest by the officer's return fire. The killer then stood over the officer and fired four more times, killing the officer instantly with a bullet between the eyes.

Arrested at the scene, Abu-Jamal allegedly confessed in the hospital by shouting, "I shot the m----- f----- and I hope the m----- f----- dies."

Defense attorneys claimed that someone else had shot Faulkner and escaped.

But the judge refused to consider a recent unsworn statement by Arnold Beverly, a self-described hit man who claimed to have killed Faulkner for the mob - a claim the prosecution contends is preposterous.

The judge found that confusing language in both the verdict form - the paper on which the jury set the penalty at death - and Common Pleas Judge Albert Sabo's related oral jury instructions, had violated Abu-Jamal's rights.

Abu-Jamal's lawyers contended, and the judge agreed, that the verdict form, compounded by the judge's oral instructions, "unconstitutionally suggested to the jury that it could not consider any particular mitigating circumstance - something in Abu-Jamal's background that called out for some leniency - unless the panel agreed unanimously as to its existence."

The U.S. Supreme Court held in 1988 that such jury instructions were unconstitutional, since there was a "substantial probability" that the jurors wouldn't consider a mitigating circumstance if not all 12 jurors agreed that such a circumstance existed, the judge noted.

At Abu-Jamal's trial, Judge Sabo told the jury "a verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or if the jury finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases."

Yohn wrote, "There are numerous aspects of this charge that created a reasonable likelihood that the jury believed that it was obligated to consider only mitigating circumstances that were found to exist by a unanimous panel."

Abu-Jamal's jury "was subjected to this sound bite twice," Yohn noted.

Abu-Jamal's Philadelphia lawyer, J. Michael Farrell, said he believed his client would appeal.

Still, Farrell praised Yohn for having the "courage" to require a new sentencing hearing. "We are disappointed on the issue of innocence and we will appeal, but we feel Judge Yohn has done a little thing with great love and has saved a life that never should have been at risk in the first place."

Other Abu-Jamal supporters and death-penalty foes applauded the judge, too, while insisting Abu-Jamal deserved a new trial.

"We would like to see the original conviction thrown out," said Monica Moorehead, a national coordinator of the New York-based International Action Center's Millions for Mumia movement.

William Nieves, of Feltonville, freed from a Death Row cell in a Pennsylvania prison last year following a retrial, called the judge's decision a partial victory for Abu-Jamal.

"Perhaps he will have the opportunity to get off Death Row," said Nieves, who now works for Pennsylvania Abolitionists United Against the Death Penalty. *

Staff writer Theresa Conroy contributed to this report.

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