In one of the most hotly debated murder convictions / death sentences in recent memory, the Third Circuit today vacated the death sentence of Mumia Abu-Jamal. Mumia Abu-Jamal v. Horn, Nos. 01-9014 & 02-9001. The panel granted relief as the Pennsylvania Supreme Court “was objectively unreasonable” when analyzing whether the “jury instructions and the verdict form created a reasonable likelihood that the jury believed” it was not permitted to find a mitigating factor unless all 12 agreed upon the mitigating factor
The panel split, 2-1,on whether the Commonwealth of Pennsylvania intentionally struck jurors on the basis of race. The prosecution used 2/3rds of its strikes to remove persons of color to create a jury that, in a county with a minority of whites, consisted of 9 whites and 3 African Americans The panel, creating new law in the Circuit, held that trial counsel failed to adequately raise the issue at trial (and essentially abandoned it), despite a merits determination by the Pennsylvania Supreme Court.
This exceptionally long (118 pages) opinion appears unusually likely to go en banc.