For the better part of twenty-five years, emotions have run high on the subject of Mumia Abu-Jamal. Convicted in 1982 for the murder of Philadelphia police officer Daniel Faulkner, Abu-Jamal is to some an unrepentant cop-killer, and to others a gifted and misunderstood champion of justice. Observers on both sides were handed a new development last Thursday when a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued an unusual ruling on the latest appeal in Abu-Jamals case.
The court upheld Abu-Jamals conviction, and rejected his call for a new trial. However, the court also held that a particular jury instruction in the latter phase of that trial during which a jury decided that Abu-Jamal would be sentenced to death rather than life in prison was improper and constituted a denial of the defendants constitutional right to due process. As a result, Abu-Jamals sentencing must be held anew. For the time being, hes effectively no longer on death row, and will await yet another stage in what has become an exceptionally long process of appeal.
To observers, the courts decision raises some vexing questions: how could a jury instruction be so improper that an entire phase of trial must be held again? Why did it take more than a quarter-century to examine the jury instruction? And why is a simple jury instruction so important, anyway?
Though its an element of trial that’s often overlooked, jury instructions are a critical part of the trial process. The instructions jurors receive are the rules by which the jury is told to determine the issues in the case and arrive at a fair and just verdict for the defendant. They include information about which parts of trial can be considered as evidence and which cannot, how to assess the credibility of witnesses, the elements of the crime alleged, and the legal standards by which a defendant is to be judged. For the legal process to function, jury instructions must clearly and accurately communicate to jurors the applicable law. If the jury doesn’t thoroughly understand the law and the process by which they are to arrive at a decision, the entire process may be subverted and the outcome may be declared inaccurate or unfair.
For a reviewing court, there’s often no way to determine whether jurors clearly understood the law they were asked to apply. However, because the American legal system is particularly protective of defendants rights, even a reasonable likelihood the jurors were in some way confused will often be enough to warrant repeating an entire phase of a trial to ensure the verdict was the result of a fair and accurate process. That’s exactly what happened here.
Before jumping into just what the jury was told, its important to take a step back to understand a bit about the structure of a trial for murder. In capital cases (those in which a prosecutor seeks the death penalty), most states employ a bifurcated approach that separates the trial into two phases. The first phase determines the defendants guilt or innocence, and the second, if the defendant is found guilty, determines whether the appropriate sentence is life imprisonment or death. The two phases occur separately, and an error in the sentencing phase doesn’t necessarily invalidate anything about the defendants underlying conviction.
In his appeal, Abu-Jamal made four major arguments to the court. The first three of those arguments pointed to errors at trial that would have affected his underlying conviction: Abu-Jamal alleged improper comments by the prosecutor, racially discriminatory jury selection, and judicial bias. The Court of Appeals rejected each argument separately. The last of Abu-Jamals four arguments, however, dealt with the sentencing phase only, and it was upon that basis that the court ruled in Abu-Jamals favor. Since that argument dealt only with his sentencing, Abu-Jamals conviction itself remains intact.
To understand that fourth argument, its necessary to delve a little into how a jury sentences a defendant in a case such as Abu-Jamals. The jurys job during sentencing, as mentioned above, is to determine whether death or life imprisonment is the appropriate punishment for a defendant convicted of murder. (Its worth noting the death penalty is almost never used for any other crime.) To make that decision, the jury looks at both aggravating factors, which make the crime more reprehensible, and mitigating factors, which make the crime less so. For example, an aggravating factor may be that the murder was particularly grisly, or that it was associated with a sale of illegal drugs. A mitigating factor, on the other hand, may be that the defendant was mentally impaired or that he had no prior criminal convictions. The balance between the two creates a kind of scale: if aggravating factors are weightier, then the death penalty is appropriate. However, if mitigating factors outweigh, then the death penalty wont be imposed, and the defendant will instead be sentenced to life in prison.
Heres where it gets tricky. Although a jury in a criminal trial generally must act unanimously a defendant cant be convicted by only eleven out of twelve jurors a jury doesnt have to unanimously agree upon which mitigating factors to consider in the sentencing process. Consider an illustration: a jury is convened to sentence a convicted murderer whose crime was aggravated by the fact that it appeared to be racially motivated. Six jurors think the death penalty shouldn’t be imposed because that aggravating factor is outweighed by the defendants clean criminal history. The other six don’t think his prior history mitigates the crime at all, but think the aggravating factor is still outweighed in another way: because the defendant was only eighteen when the crime occurred. All twelve agree that something outweighs the aggravating factor, but they don’t agree which mitigating factor should be considered. Clearly, it wouldn’t be just to impose the death penalty anyway, simply because the jurors aren’t unanimous in that respect none of the jurors thinks the death sentence is appropriate. Thus, the exception: the mitigating factors calculation is a part of the sentencing process that doesnt require jurors to act unanimously.
The problem in Abu-Jamals case (and the error he pointed to in his fourth argument) was that jurors weren’t told that. Instead, they were simply informed they had to act unanimously in sentencing the defendant. Thus, Abu-Jamal argued, there was a reasonable likelihood that jurors may have thought they were precluded from considering any mitigating evidence unless all twelve jurors agreed upon which mitigating evidence to consider. Under U.S. Supreme Court precedent in Mills v. Maryland, that reasonable likelihood of juror confusion makes a sentencing constitutionally defective, because it means the defendant may not have received full due process of law guaranteed under the Constitution.
The court in Abu-Jamals case agreed that the jury instructions (as well as the final verdict form) were misleading with regard to when unanimity was required. The court gave the state the option to either conduct a new sentencing hearing within six months, or simply settle for a sentence of life in prison.
There are two reasons the result took so long to reach. First, the relevant case law hadn’t been decided soon enough to be useful. Mills v. Maryland, the case that formed the basis of the Court of Appeals decision, was decided by the Supreme Court in June 1988. By that time, Abu-Jamal had already appealed his conviction to the state court six months prior – and even if the instructions were questionable, he couldn’t base his appeal upon case law that hadn’t been decided yet.
Second, criminal appeals involve several levels, several courts, and often a painstakingly detailed process of review – making for an undertaking that is very time intensive and sometimes excruciatingly slow. Because Abu-Jamal had already appealed his case through the state court system, the only remaining avenue lay in the federal courts. Reviewing a state sentence through the federal courts generally involves a legal action known as habeas corpus. The nature and details of a habeas corpus action are complex, but it suffices to say the process is often an extraordinarily long one. By the time Abu-Jamals appeal reached the Third Circuit, his case had seen more than a dozen appeals and requests for rehearing. Each had to be argued zealously and reviewed thoroughly – no small task for a determined defendant.
For now, the parties have a few options. Abu-Jamal, having lost on three out of four arguments, now has the opportunity to ask the entire Court of Appeals to hear his case. If denied, he can then ask the U.S. Supreme Court to review the Court of Appeals decision. Robert Bryan, lead counsel for Abu-Jamal, has suggested hell do just that. As for the prosecution, its up to the office of Philadelphia District Attorney Lynne Abraham whether to conduct another sentencing hearing for Abu-Jamal. Given the zeal with which they have prosecuted the case over the last twenty-six years, it seems there’s little chance they’d throw in the towel now. When that second sentencing jury convenes, one thing is certain: both parties will be paying very close attention to ensure the jury instructions each juror receives are clear, accurate, and just.