Abu Jamal will appeal the court's decision and seek a re-hearing, his lawyer said.
"We are grateful, but the decision does not go far enough," Robert R. Bryan, Abu Jamal's lead lawyer, told IPS. Abu Jamal is innocent, he said. "This is not a victory, not from my viewpoint."
Bryan said Abu Jamal's original trial was tainted by unfairness and fraud, and that his client deserves a fair hearing.
"This case was just reeking with racism. I want a new jury trial. I want him acquitted so he can go home to his family," Bryan said.
Protests of any unfavourable court decision have been planned for months by Abu Jamal supporters in U.S. cities and around the world, and are expected to be held on Friday. Another large protest is planned for Apr. 26 in Philadelphia.
As many as 10 African American potential jurors may have been excluded during the original trial, said attorney Christina Swarns, director of the Criminal Justice Project of the NAACP Legal Defense and Education Fund, and a member of Abu Jamal's legal team.
In an earlier interview with IPS, Abu Jamal was circumspect about the possibility that the appeals court panel would grant him a new trial.
"We're certainly working toward that end and I'm certainly hopeful. But I'm not in the prediction game," he said.
Abu Jamal was working as a journalist in Philadelphia and reporting about police corruption and racism, when he was charged with the murder of Faulkner, a white policeman. He was convicted at a time when the city, still the poorest big city in the U.S., was convulsing with racial tension, and evidence of gross police brutality. Abu Jamal was sentenced by an almost all-white jury on circumstantial, rather than forensic evidence.
"The true facts of this case have never come out," Bryan has said.
Abu Jamal said of his days as a reporter in Philadelphia: "It wasn't popular to certain segments of the local community. To be perfectly honest it wasn't terribly popular with many of my bosses. I was criticized constantly for some of the work I did. It may have been excellent and good quality work but it stepped on toes," Abu Jamal told IPS.
"Because I had come from the Black Panther party I still knew people around the country so I would do stories not just dealing with that but a wide range of political and related stories. I believed it was my duty and my job to do those stories so I tried to do the job as well as I could. I'm sure it got me into a whole lot of hot water," he told IPS.
Today, Abu Jamal produces broadcasts and writes books from prison and 23-hour-a-day isolation.
Meanwhile, the Fraternal Order of Police, which wields considerable power in Pennsylvania, has lobbied continuously for Abu Jamal's execution. Maureen Faulkner, widow of the slain policeman, also has maintained a bitter fight for Abu Jamal's death. She recently co-wrote a book with right-wing talk show host Michael Smerconish, in which she argues for Abu Jamal's execution.
The federal appeals judge panel has been deliberating since May 17, 2007.
The federal judge who dissented, Thomas Ambro, said Abu Jamal deserves a hearing about whether black jurors were excluded from the original jury, even if Abu Jamal's original complaint was not filed in timely fashion.
"Excluding even a single person from a jury because of race violates the Equal Protection Clause of our Constitution," Ambro wrote in the 118-page decision.
And it could be argued that Abu Jamal had indeed objected in a timely fashion because he attempted to survey his potential jurors about any possible bias, and his lawyer raised the issue, Ambro says.
Ambro quotes the Mar. 18, 1982 trial transcript to prove his point. According to the transcript, Abu Jamal's lawyer spoke before the judge and raised his concern that black jurors may be excluded, as he had seen happen in other cases: "It has been the custom and the tradition of the District Attorney's Office to strike each and every black juror that comes up peremptorily. It has been my experience since I have been practicing law, as well as the experience of the defense bar... that that occurs."
"I am not saying, Your Honor, that that questionnaire or any other procedure that Your Honour might approve would in fact ensure any black representation on the jury. What I am saying is that even if it's an all-white jury, Your Honour, I want to be certain that it's a fair and impartial jury," the lawyer said.
In the end, all but one black juror was removed on the panel that sentenced Abu Jamal to death row.
The strong dissent is enough to seek a re-hearing before the full court, Bryan said.
"It is a guide, a light in the darkness," Bryan said.
Bryan said timeliness of the objection is not a good reason for the court to turn down his client's appeal. It was a big mistake made by Abu Jamal's previous lawyers, Bryan said. Bryan took over the case five years ago.
"The case had not been handled well. It was a disaster. It's in pieces. It's like trying to put Humpty Dumpty back together again," he said.
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