520 F.3d 272 (3rd Cir. 2008), 01-9014, Abu-Jamal v. Horn

Docket Nº:Martin HORN, Pennsylvania Director of Corrections; Conner Blaine, Superintendent, SCI Greene; District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania, Appellants at No. 01-9014.
Citation:520 F.3d 272
Party Name:Mumia ABU-JAMAL, a/k/a Wesley Cook Mumia Abu-Jamal, Appellant at No. 02-9001 v.
Case Date:March 27, 2008
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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520 F.3d 272 (3rd Cir. 2008)

Mumia ABU-JAMAL, a/k/a Wesley Cook Mumia Abu-Jamal, Appellant at No. 02-9001

v.

Martin HORN, Pennsylvania Director of Corrections; Conner Blaine, Superintendent, SCI Greene; District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania, Appellants at No. 01-9014.

Nos. 01-9014, 02-9001.

United States Court of Appeals, Third Circuit.

March 27, 2008

Argued May 17, 2007.

On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil Action No. 99-cv-5089, Honorable William H. Yohn Jr.

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Hugh J. Burns, Jr., Esquire (Argued), Ronald Eisenberg, Esquire, Office of District Attorney, Philadelphia, PA, for Appellants/Cross-Appellees, Martin Horn, Pennsylvania Director of Corrections; Conner Blaine, Superintendent, SCI Greene; District Attorney for Philadelphia County; The Attorney General of the State of Pennsylvania .

Robert R. Bryan, Esquire (Argued), San Francisco, CA, Judith L. Ritter, Esquire (Argued), Widener University School of Law, Wilmington, DE, for Appellee/Cross-Appellant, Mumia Abu-Jamal.

Christina A. Swarns, Esquire (Argued), NAACP Legal Defense and Educational Fund, Inc., New York, NY, for Amicus Curiae-Appellee, The NAACP Legal Defense and Educational Fund, Inc.

Jill Soffiyah Elijah, Esquire, Criminal Justice Institute, Harvard Law School, Cambridge, MA, for Amici Curiae-Appellees, National Lawyers Guild, National Conference of Black Lawyers, International Association of Democratic Lawyers, Charles Hamilton Houston Institute for Race & Justice of Harvard Law School, Southern Center for Human Rights, National Jury Project.

Before: SCIRICA, Chief Judge, AMBRO and COWEN, Circuit Judges.

OPINION

SCIRICA, Chief Judge.

This petition for collateral review under 28 U.S.C. § 2254 came to us more than two decades after trial. In 1982, Mumia Abu-Jamal was convicted and sentenced to death in a Pennsylvania court for the murder of Philadelphia Police Officer Daniel Faulkner. Following denial of his appeals in state court, Abu-Jamal filed a petition for a writ of habeas corpus in federal district court. The District Court vacated his death sentence and granted a new penalty hearing, but denied all other relief, affirming the judgment of conviction. The Commonwealth of Pennsylvania appealed the order vacating the death penalty. Abu-Jamal appealed his conviction.

We consider four issues on appeal: (1) whether the Commonwealth's use of peremptory challenges violated Abu-Jamal's constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (2) whether the prosecution's trial summation denied Abu-Jamal due process; (3) whether Abu-Jamal was denied due process during post-conviction proceedings as a result of judicial bias; and (4) whether the jury charge and sentencing verdict sheet violated Abu-Jamal's constitutional rights under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). We will affirm the judgment of the District Court.

I.

On December 9, 1981, between three thirty and four o'clock in the morning, Philadelphia Police Officer Daniel Faulkner made a traffic stop of a Volkswagen driven by William Cook, Abu-Jamal's brother, on Locust Street between 12th and 13th Streets, in Philadelphia. Officer

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Faulkner radioed for backup assistance, and both men exited their vehicles. A struggle ensued, and Officer Faulkner tried to secure Cook's hands behind his back. At that moment, Abu-Jamal, who was in a parking lot on the opposite side of the street, ran toward Officer Faulkner and Cook. As he approached, Abu-Jamal shot Officer Faulkner in the back. As Officer Faulkner fell to the ground, he was able to turn around, reach for his own firearm, and fire at Abu-Jamal, striking him in the chest. Abu-Jamal, now standing over Officer Faulkner, fired four shots at close range. One shot struck Officer Faulkner between the eyes and entered his brain.

Within a minute of Officer Faulkner's radio call, Officers Robert Shoemaker and James Forbes responded. Robert Chobert, a taxi cab driver who had just let out a passenger at 13th and Locust, stopped the officers before they arrived at the scene and notified them an officer had just been shot. Officer Shoemaker then approached the parked Volkswagen on foot and observed Abu-Jamal sitting on the curb. Despite Officer Shoemaker's repeated orders to freeze, Abu-Jamal did not remain still and reached for an object Officer Shoemaker could not yet identify. As Officer Shoemaker inched closer, he saw a revolver on the ground close to Abu-Jamal's hand. Officer Shoemaker kicked Abu-Jamal in the chest to move him away from the gun, and then kicked the gun out of Abu-Jamal's reach. Officer Shoemaker then motioned for Officer Forbes to watch Abu-Jamal while Shoemaker attended to Officer Faulkner. During this time, Officer Forbes also searched Cook, who had remained at the scene and was standing near the wall of an adjacent building. Cook made only a single statement: "I had nothing to do with it."

Additional officers arrived on the scene. Officer Faulkner was immediately rushed to Thomas Jefferson University Hospital, where he was later pronounced dead. Officers took Abu-Jamal into custody. He resisted arrest while officers moved him to a police van and tried to handcuff him. Abu-Jamal was also taken to Thomas Jefferson University Hospital. While Abu-Jamal was waiting for treatment in the emergency room's lobby, Priscilla Durham, a security guard on duty at the hospital, heard Abu-Jamal twice repeat, "I shot the motherfucker, and I hope the motherfucker dies." Officer Gary Bell also heard Abu-Jamal make this statement. Hospital personnel then took Abu-Jamal into the emergency room for treatment.

Officer Forbes recovered two weapons from the scene. A standard police-issue Smith & Wesson .38 caliber Police Special revolver, registered and issued to Officer Faulkner, with one spent Remington .38 special cartridge, was found on the street about five feet away from Officer Faulkner. Ballistic testing later confirmed the bullet that struck Abu-Jamal was fired from Officer Faulkner's revolver. A Charter Arms .38 caliber revolver containing five "Plus-P" high-velocity spent cartridges was found on the sidewalk near Abu-Jamal. Abu-Jamal had purchased this revolver in June 1979 and it was registered in his name. Officer Anthony Paul, supervisor of the Firearms Identification Unit in the Laboratory Division of the Philadelphia Police Department, testified at trial that the bullet recovered from Officer Faulkner's head was badly mutilated and could not be matched with a specific firearm. Officer Paul also testified that the recovered bullet specimen had eight lands and grooves with a right hand direction of twist, which was consistent with a bullet fired from a Charter Arms revolver.

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The Commonwealth presented four eye-witnesses at trial. Cynthia White testified she saw Abu-Jamal run out of a parking lot on Locust Street as Officer Faulkner attempted to subdue Cook, and saw Abu-Jamal shoot Officer Faulkner in the back. She testified she then watched Officer Faulkner stumble and fall, and then saw Abu-Jamal hover over Officer Faulkner, shoot him a few more times at a close distance, and then sit down on the curb. Robert Chobert testified he heard a shot, looked up, saw Officer Faulkner fall to the ground, and then saw Abu-Jamal fire a few shots into Officer Faulkner. At the scene, Chobert identified Abu-Jamal as the person who shot Officer Faulkner. Michael Scanlon testified he witnessed an assailant, whom he could not identify, shoot Officer Faulkner from behind, then watched the officer fall, and saw the assailant stand over the officer and shoot him in the face. Albert Magliton testified he saw Abu-Jamal run across the street from the parking lot, then he heard shots and saw Officer Faulkner on the ground and Abu-Jamal on the curb. Magliton identified Abu-Jamal as the shooter, both at the scene and at trial.

On December 15, 1981, Anthony Jackson was appointed counsel for Abu-Jamal. Abu-Jamal was arraigned on charges of first degree murder and other related charges. The court granted Abu-Jamal's request to proceed pro se and the court designated Jackson, who had spent five months preparing for trial, as backup counsel.

A jury trial commenced on June 7, 1982. Abu-Jamal was disruptive, uncooperative, and hostile. He repeatedly insisted that John Africa, a social activist who was not a lawyer, be appointed as counsel, even after the court denied this request. Abu-Jamal's conduct necessitated his removal from proceeding pro se for the remainder of the trial, and at times caused him to be physically removed from the courtroom. The jury was instructed against drawing negative inferences from his removal. Jackson, who was present throughout the entire trial and was reinstated as primary counsel when Abu-Jamal was removed, kept Abu-Jamal fully informed throughout the proceedings.

During the lengthy trial, Jackson cross-examined each witness called by the prosecutor. Abu-Jamal presented seventeen witnesses: eight fact witnesses and nine character witnesses. Neither Abu-Jamal nor Cook testified at trial. On July 2, 1982, the jury found Abu-Jamal guilty of first degree murder and of possessing an instrument of a crime.

On July 3, 1982, the jury heard evidence and argument in a penalty phase hearing. Later that day, the jury returned a sentence of death. The jury found one aggravating circumstance, killing a police officer acting in the line of duty, and one mitigating circumstance...

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