A federal appeals court Thursday refused to overturn the conviction of imprisoned journalist and former Black Panther Mumia Abu-Jamal and rejected his call for a new trial. However, the long-awaited ruling said Abu-Jamal, who has been on death row for twenty-six years, deserves a new sentencing hearing because of flawed jury instructions. If he is re-sentenced, he will face either death or life in prison without parole. We speak to Abu-Jamal’s lead attorney, Robert Bryan. [includes rush transcript]

The following is an excerpt from Third Circuit Court Rejects Abu-Jamal Appeal: The “Mumia Exception” by Dave Lindorff.

Judge Thomas Ambro, a Clinton appointee to the bench—chastised his two colleagues, Chief Judge Anthony Scirica and Judge Robert Cowan– both Reagan appointees–saying that they were applying a different, and unattainable standard of proof to Abu-Jamal than they had been using for other cases brought before them.

In rejecting Abu-Jamal’s claim of racial bias in jury selection—something known as a Batson violation, after the Supreme Court’s 1986 decision in Batson v Kentucky—the court majority wrote that Abu-Jamal had not made a timely protest over prosecutor McGill’s rejection of 10 black jurors without cause (McGill used 15 of his 20 available peremptory challenges to remove at least 10 qualified black and 5 qualified white jurors). The majority also proposed that because Abu-Jamal had not provided the court with the racial makeup of the jury pool, it was impossible to know whether perhaps two-thirds of that pool might have been black, giving an “innocent explanation” to McGill’s 66.7% black rejection rate. (Local attorneys scoff at such a notion, saying they’ve never seen a jury pool so skewed racially.)

Judge Ambro blasted this logic, saying that the US Supreme Court had established that “excluding even a single person from a jury because of race violated the Equal Protection Clause of our Constitution.” Significantly, the nation’s High Court just affirmed that position March 19 with a powerful 7-2 ruling in a Louisiana death penalty case (Snyder v. Louisiana).