San Francisco Chronicle - DEC 23,

PENNSYLVANIA: LEGAL AFFAIRS -Overturning the Death Penalty

Reasoning behind Abu-Jamal reversal -- For a death sentence, each juror must be free to choose a reason for leniency

The federal judge who overturned Mumia Abu-Jamal's death sentence relied on a U.S. Supreme Court ruling that addresses a central issue in death penalty trials: the ability of each juror to decide whether a convicted murderer's life is worth saving.

Although the high court's 1988 decision in Mills vs. Maryland is somewhat obscure, it is far from insignificant.

It overturned every pending Maryland death sentence except one that had been issued by a judge without a jury, said Katy O'Donnell, chief of the capital defense division in the Maryland public defender's office.

"It's far from a technicality," she said. "Before we sentence someone to death, each individual on that jury has to believe that death is the appropriate sentence."

In Pennsylvania, a number of death sentences besides Abu-Jamal's have been reversed because of the ruling -- and 30 more are imperiled, according to state prosecutors.

The penalty issue took up only about 1/10 of U.S. District Judge William Yohn's 272-page ruling Tuesday, which upheld Abu-Jamal's conviction for the 1981 murder of Philadelphia police Officer Daniel Faulkner but granted a new penalty trial. Both sides plan to appeal.

Yohn -- called "sick and twisted" by Faulkner's widow, Maureen, and a "cheap political hack" by the Philadelphia president of the Fraternal Order of Police after his ruling -- was appointed to the federal bench by President George Bush in 1991 after 10 years as a state judge and 12 years as a Republican state legislator.

Like many death penalty issues, the crux of Yohn's ruling takes some explaining.

In most states with capital punishment, including Pennsylvania and California, a jury that has convicted a defendant of a capital murder then decides between death and a life sentence, based on additional evidence about the defendant's background and character and the impact on the victim's family.

To reach their decision, jurors determine whether the "aggravating" circumstances that favor death in the case outweigh the "mitigating" circumstances that favor life.

States define those factors differently, but aggravating circumstances typically include facts about the crime itself -- multiple victims, infliction of torture, or killing a particularly vulnerable victim or a public official -- and the defendant's record of violence.

Mitigating circumstances include youth, duress, mental impairment, the lack of a serious criminal record, and a so-called "catchall" factor, which covers anything else about the defendant or the case that favors leniency. That factor can encompass everything from childhood hardships to prison redemption to lingering doubt about guilt.

To vote for death, the 12 jurors must agree that at least one aggravating circumstance exists and outweighs any mitigating circumstances. In states like Pennsylvania, which require jurors to specify the aggravating circumstances they found, the decision must be unanimous. But each juror is supposed to be free to choose reasons for leniency -- so any of them can find a mitigating circumstance, without everyone on the panel agreeing.

That was the problem in the Abu-Jamal case, and the Mills case that preceded it.

The Maryland jurors who convicted Ralph Mills of murdering his prison cellmate were given a verdict form for the penalty phase asking which of a list of aggravating or mitigating circumstances they found to be true; they found one of the former and none of the latter. In a 5-to-4 ruling overturning Mills' death sentence, the Supreme Court said jurors could easily have concluded that all their decisions had to be unanimous -- that a juror could not vote for a life sentence based on a mitigating circumstance unless all 12 jurors had found that circumstance to exist.

ONE VOTE WOULD BE CRUCIAL

As a result, the court said, even if every juror believed some mitigating circumstance justified leniency, the panel could come back with a death verdict. Even 1 vote for life would be crucial, because the law in Maryland - - like Pennsylvania -- requires a life sentence if the jury deadlocks at the penalty phase. (California law lets prosecutors seek a penalty retrial.)

The ruling did not affect capital cases in California, because the state does not have similar verdict forms or jury instructions, said Senior Assistant Attorney General Dane Gillette.

But a number of states followed procedures like Maryland's. Pennsylvania, which was one of them, changed its rules in response to the decision, but some earlier death sentences became vulnerable -- as did that of Abu-Jamal, whose conviction was not yet final when the Mills ruling was issued.

One lawyer familiar with the issue, who asked not to be identified, said Abu-Jamal's is the 6th Pennsylvania death sentence overturned for the same reason. The U.S. Court of Appeals in Philadelphia, which will review Yohn's ruling, has affirmed at least 2 of those reversals -- 1 on Oct. 31 in a case that Yohn called virtually identical to Abu-Jamal's.

Abu-Jamal's jury found 1 aggravating circumstance, murder of a police officer, and decided it outweighed the sole mitigating circumstance, his lack of a significant criminal record. Jurors heard from character witnesses in support of Abu-Jamal but found no other mitigating circumstances.

INSTRUCTIONS WERE FLAWED

The verdict form, and Judge Albert Sabo's instructions, repeatedly told jurors their verdict must be unanimous, and never mentioned that 1 or more jurors could find mitigating circumstances independent of the others. In addition, Sabo ended his instructions by pointing out the space on the form for jurors to check each mitigating circumstance they found to exist, and then directed them to the place at the end for each juror to sign the verdict -- an implication, Yohn said, that any mitigating circumstance needed jury unanimity.

The written and oral instructions and the recent appeals court ruling in a comparable case all point to one conclusion, Yohn said: Abu-Jamal is entitled to a new penalty trial, because of a "reasonable likelihood" that the jurors who sentenced him to death wrongly believed they could not consider evidence in his favor without a unanimous jury vote.

No doubt mindful of the passions that rage about the case 20 years after the murder, Yohn drafted his ruling in the bloodless language of a technocrat, bare of quotable rhetoric or legal brinkmanship that might attract the attention of a higher court.

That won't prevent appeals by either side as far as the Supreme Court, but it might mean that in the end, another jury, properly instructed, will decide whether the nation's best-known death row inmate lives or dies.