The Supreme Court on Tuesday threw out a ruling that had set aside the death sentence of Mumia Abu-Jamal, convicted of killing a Philadelphia police officer in a racially tinged case that has made the former Black Panther an international cause celebre.
The justices ordered the 3rd U.S. Circuit Court of Appeals in Philadelphia to revisit its 2008 ruling that Abu-Jamal deserved a new sentencing hearing because of flawed jury instructions at his 1982 trial. The Supreme Court pointed to its ruling in an Ohio case last week, when it said a neo-Nazi killer did not deserve a new sentencing hearing on those grounds.
Prosecutors called the Ohio case directly on point.
"The order pretty much says it all," Philadelphia Assistant District Attorney Hugh J. Burns Jr. said. "I don't see how you can possibly distinguish them."
But Abu-Jamal's lawyer insists the facts differ.
"If our cases are similar, of course it doesn't bode well. But they're different," said lead appellate lawyer Robert R. Bryan of San Francisco. "It's always uphill with a death-penalty case."
The 3rd Circuit could still order a federal trial court to consider Abu-Jamal's case anew on other still-pending defense claims.
A mostly white Philadelphia jury convicted Abu-Jamal of killing white Officer Daniel Faulkner in 1981 after the patrolman pulled over Abu-Jamal's brother in an overnight traffic stop.
Prosecutors believe the 25-year-old Faulkner managed to shoot Abu-Jamal during the confrontation. A wounded Abu-Jamal, his own gun lying nearby, was still at the scene when police arrived, and authorities consider the evidence against him overwhelming.
Since Abu-Jamal's conviction, activists in the United States and Europe have rallied in support of his claims that he was the victim of a racist justice system. Abu-Jamal has kept his case in the spotlight through books and radio broadcasts.
"His body's locked up, but his mind is free as a bird," Bryan told The Associated Press. "He has a lot to draw from within that most people similarly situated don't have."
Faulkner's widow, Maureen, did not immediately return phone messages Tuesday. His patrol partner hopes the 3rd Circuit will soon end the long-running appeals process.
"At some point, I think everybody would like to see it end," said retired officer Garry Bell, 55, of Philadelphia. "It's been 28 years."
Abu-Jamal, a former radio reporter born Wesley Cook, has been on Pennsylvania's death row since 1982. Hundreds of supporters gathered outside the federal courthouse in Philadelphia when his latest appeal was argued in May 2007.
Bryan unsuccessfully argued for a new trial on grounds the prosecution improperly excluded blacks from the jury, made up of 10 whites and two blacks.
In March 2008, the 3rd U.S. Circuit upheld the first-degree murder conviction but found the jury instructions and verdict form flawed and agreed Abu-Jamal deserved a new sentencing hearing. The Supreme Court rejected Abu-Jamal's appeal of his conviction.
The issue over the instructions relates to whether jurors understood how to weigh mitigating circumstances that might have kept Abu-Jamal off death row. Under the law, jurors did not have to agree unanimously on a mitigating circumstance.
"The verdict form together with the jury instructions were misleading as to whether unanimity was required in consideration of mitigating circumstances," the appeals court wrote.
But last week, the Supreme Court reversed a similar ruling from the 6th U.S. Circuit Court of Appeals in Cincinnati. That case dealt with Frank Spisak, the neo-Nazi who killed three people in 1982.
Abu-Jamal's oldest brother argued Tuesday that new evidence that has surfaced over the years should be aired at a retrial.
"I don't think it should ever be too late to hear information that can save someone," said Keith Cook, 66, of Hillsborough, N.C.