Verfahren gegen Mumia Abu-Jamal

IN THE COURT OF COMMON PLEAS

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Room 613 City Hall
Philadelphia, Pa.

March 18, 1982

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COURT CRIER: Commonwealth versus Abu-Jamal, Your Honor.

THE COURT: I thought we had this scheduled for ten o'clock this morning, Mr. Jackson.

MR. JACKSON: I apologize.

THE COURT: I went to a lot of trouble to call Judge Stout and get Mr. McGill released and you show up fifteen minutes late. The Court has some rights, you know.

MR. JACKSON: I assure you it wasn't a casual matter, Your Honor.

Pursuant to Your Honor's suggestion yesterday with regard to sending Mr. McGill a copy, we had a messenger take all of the copies of the motions that I intend to file. Unfortunately, he still has those motions. I expect him to be here momentarily. I went back to my office to pick them up, and that's the reason for my being late.

If Your Honor pleases, I could at least present the essence of those motions. The formal written motions should be here momentarily. I think, nevertheless, we could proceed with the essence of those motions.

THE COURT: All right.

MR. JACKSON: Fine, sir. Your Honor, the first issue has to do with discovery material that we received from the District Attorney's Office.

MR. MCGILL: Excuse me, Your Honor. I want to make sure that I understand what Mr. Jackson has said.

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Are there additional motions?

MR. JACKSON: Yes.

MR. MCGILL: That I have not received copies of?

MR. JACKSON: That's right. I can list them for you.

There's a motion for a lineup, Your Honor, with regard to the possible witnesses Mr.McGill intends to call in the trial of Mr. Jamal. As Your Honor well knows, there was one witness previously who testified, Cynthia White. Your Honor has made a ruling with regard to the lineup respecting her. However, it is my understanding that there may be at least one or perhaps several other witnesses that Mr. McGill intends to call to identify Mr. Jamal. And, again, we would renew our request for a lineup, in that my review of the discovery materials suggested there may be one other tentative identification, but certainly no positive identification. And for those reasons, Your Honor, we would request a lineup.

THE COURT: What other motions do you have?

MR. JACKSON: The other motion goes to having Mr. Jamal removed from administrative segregation at the Philadelphia County Prison.

Since his arrest -- well, he was in the hospital, of course, and he is presently detained in the hospital wing of the detention center. He has been in administrative segregation.

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He has fully recovered from his injuries and wounds, Your Honor, and for that reason I would respectfully request that he be removed from administrative segregation, in that he presents no risk of harm to himself or to anyone else. And I would ask that he be allowed to go into the general population within the Philadelphia County Prison.

The next motion would go to -- it would in effect be an omnibus motion to -- in fact, we previously filed an omnibus motion requesting certain documentation from the District Attorney's Office. It would be my contention that the District Attorney's Office has failed to comply with that order. And Your Honor has certainly signed that order previously, with regard to making available to me certain information. I think that I have sixteen different categories of information that I am specifically requesting. Some of it has to do with copies of the property receipt, a great deal of it has to do with information that apparently is either in the possession of the District Attorney's Office or the Police Department.

Pursuant to a civilian complaint filed by Mr. Jamal on December 30th, I filed a letter -- a complaint -- with the Police Department on behalf of Mr. Jamal with regard to his being shot, with regard to his being wounded and beaten a by the police officers subsequent to his arrest.

The Police Department, Commissioner Solomon, just recently sent a letter to me indicating that that information would not be made available to me while these charges are pending. And common-sensically, Your Honor, the information

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wouldn't do me any good if the case is over.

Mr. McGill: -- I have a copy of a letter that he sent to the Police Commissioner indicating that that information should be turned over to him and he should, in turn, give it to me. And I am not sure that perhaps he does not have it either.

That brings me to the issue, Your Honor, as to whether in fact the Police Department is the appropriate body -- or perhaps the District Attorney's Office -- whether or not they might be the appropriate body to turn that information over to me, in that on the one hand they are prosecuting Mr. Jamal pursuant to the information they received from the Police Department, and while, on the other hand, the Police Department is refusing to give up information that might subject the Police --

THE COURT: You are talking about information in the police files concerning alleged beatings, and so on?

MR. JACKSON: No. Just of Mr. Jamal, not anyone else.

THE COURT: That's what I'm saying, of Mr. Jamal.

MR. JACKSON: That's right.

THE COURT: How did that all arise? By complaint?

MR. JACKSON: Yes, sir.

THE COURT: Whose complaint?

MR. JACKSON: Mr. Jamal's.

THE COURT: So he filed a complaint, the police checked it out --

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MR. JACKSON: I don't know whether --

THE COURT: -- and you want their files as to what they checked out?

MR. JACKSON: Yes, sir. It pertains to the same issue.

THE COURT: Well, purportedly, whatever Mr. Jamal tells you, those are the facts, right? So you already have all the facts.

MR. JACKSON: No, sir, I don't have the facts. I don't have the statements that the police gave to Internal Affairs.

THE COURT: You want statements that the officers gave to Internal Affairs?

MR. JACKSON: Yes. I don't have the statements that the police got from hospital personnel of Mr. Jamal being beaten in the hospital.

THE COURT: Okay. We'll take that up in a minute. Any other motions?

MR. JACKSON: Yes, sir.

I have an additional motion, Your Honor, that would allow -- that would request an increase in the fees Your Honor has awarded with regard to the various experts that I intend to call. And I would also ask that there be provision made for interim payments.

I have not been able to secure the required experts for the fees. And Your Honor may recall that one hundred fifty dollars has been suggested for each of these experts.

In addition, as Your Honor well knows, normally

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what happens is those fees are paid after the case is over, and sometimes that's nine months to a year afterward. Under those circumstances I have not been able to get those qualified experts that I would need.

THE COURT: Those are the standard fees that we agreed to as a matter of policy. I can't really increase them at this level. You can get interim payments for the amounts that I authorized. As far as any additional payments are concerned, you will have to submit those with your pay petition. The trial judge will know what work was done, and he will either approve them or disapprove them. And then they will go the Administrative Judge.

MR. JACKSON: I am familiar with the procedure. The problem is that at this stage of the trial -- I need the information and the resources of the experts prior to trial.

THE COURT: I know.

MR JACKSON: And I can't secure that. That's my problem.

THE COURT: Well, that's going to be a problem, getting an increase, because then we have to have a general increase. And I don't think it's in the cards at the current state of the court system and the budget and everything else. What experts are you talking about?

MR. JACKSON: Well, I need an investigator.

THE COURT: You can get him his initial payment of one hundred and fifty dollars and let him submit an itemized bill and submit it with your pay petition.

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MR. JACKSON: Rut again, Your Honor, I'm back to the same problem: I wouldn't be able to pay him for another year from now.

THE COURT: If it's necessary, you can submit itemized bills from time to time.

MR. JACKSON: Would I submit them to you, Your Honor?

THE COURT: Before trial, yes.

MR. JACKSON: And that would be for each of the experts that I need additional funds for?

THE COURT: Yes. But you're going to have to justify them with itemized bills for the work done.

MR. JACKSON: I'm certain that I can justify it.

THE COURT: The experts you want aren't more privileged than the rest of us in the world. None of us gets paid in advance.

MR. JACKSON: I understand that. The problem is that Mr. Jamal is indigent.

THE COURT: That's true in almost every case we have, the bulk of the cases. We don't have any multi-millionaires on the list over there. Everybody is in the same boat. You understand that.

MR. JACKSON: I understand that. But the problem is, what do we do if it's required -- and I am saying that it is required -- and these experts require their money in advance, or certainly in a timely --

THE COURT: Tell them point-blank they are not

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going to get money in advance. You handle your case as you see fit.

MR. JACKSON: I don't mean necessarily in advance.

THE COURT: Now, if you send them out to check everything in the world, at all places and at all times, and they submit a bill for fifty thousand dollars, forget it.

MR. JACKSON: I'm not suggesting that. But I might say, Your Honor, that I get many, many calls from people telling me that they have information. Now, I could, in a very cavalier fashion -- I could take those calls and say it's some crackpot. But it could be someone who has substantive information. And I think I have an obligation to follow those leads.

THE COURT: I think you do.

MR. JACKSON: And many have been followed and have led nowhere. But, again, as an attorney, what am I supposed to do? I have to follow those leads.

THE COURT: I would say you're going to have to spend quite a bit of time in your office interviewing those people.

MR. JACKSON: Sometimes they won't come into the office. It's not that I have any problem spending the time. I assure Your Honor that I have spent a great deal of time in this matter thus far. That's not the problem. My problem is getting additional resources. In other words, in addition to the investigator I need a forensic pathologist. I have not been able to secure a forensic pathologist, for one hundred and

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fifty dollars. Most forensic pathologists won't even review --

THE COURT: Out in California they may be available.

MR. JACKSON: That's what I understand. In California, I understand there's a forensic pathologist available. But unfortunately, I believe I would have to pay his transportation costs to come here.

THE COURT: Retain your experts, have them do their work, let them give you itemized bills. If they are reasonable and fair, I'11 act on them.

MR. JACKSON: Fine, Your Honor.

THE COURT: Now, on these leads that you get -- there's a problem in a case that has such publicity. I'm just not sure at this point how much money is going to be available to check out everything that's going to be called in to you.

MR. JACKSON: I'm not, either. And, of course, I have no formula for deciding in advance which leads to follow up, Your Honor.

THE COURT: You're going to have to make a calculated guess. If somebody calls you, and if it sounds like it checks out and they have valuable information, pursue it. If it's somebody who sounds like a crackpot, you should make a careful note of that and not spend your time or money or effort on it.

MR. JACKSON: I'm not suggesting that I am chasing

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red herrings with regard to the information. I think that I am making a concerned decision with regard to the experts that I have named.

THE COURT: We'll handle that as we go along.

MR. JACKSON: Fine, sir.

THE COURT: I'm not going to give you an order one way or the other.

MR. JACKSON: I understand that. The last motion would be to ask the Court to allow me to distribute and forward the questionnaires to the potential veniremen -- to those who would come up as jurors -- who would come up potentially at the time of Mr. Jamal's trial.

As Your Honor might know, according to my research there are several national surveys -- as well as here in Philadelphia -- that would suggest, particularly in a case that has received as much publicity as this case has -- and, also, there's a racial factor, the police officer being white, Mr. Jamal being black -- that, instead of one or three -- forty percent of jurors called believe that if a person is arrested, then in fact that person must be guilty of the crime that's charged.

Notwithstanding that argument -- and I am not suggesting that Your Honor would make a decision with regard to that question, or with regard to that fact -- today I am suggesting that the use of a questionnaire would provide me with additional information that I can use at the time of the voir dire, when the jurors are called in.

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We -- as Your Honor well knows -- we have twenty peremptory challenges in a criminal case. 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, the majority of the defense Bar, that that occurs. In addition to that, Your Honor --

MR. MCGILL: Excuse me, Your Honor -- I don't want to interrupt any more, but I want to make an objection.

THE COURT: You are going to categorically deny that?

MR. JACKSON: They always do, they always do. I just finished a jury trial --

MR. MCGILL: May I also object to that remark?

MR. JACKSON: -- where the first thirteen black jurors were peremptorily challenged by the district attorney.

THE COURT: The district attorney says he does not agree with that statement.

MR. JACKSON: I'm sure he doesn't. Fine.

In addition to that, Your Honor, we have the other situation, where black jurors will disqualify themselves because they have feelings against the death penalty.

And I am not saying, Your Honor, that that questionnaire or any other procedure that Your Honor might approve would in fact insure any black representation on the jury. What I am saying is that even if it's an all white jury,

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Your Honor, I want to be certain that it's a fair and impartial jury. I want a fair and impartial jury, white or black. So for that reason, Your Honor --

THE COURT: You are entitled to that.

MR. JACKSON: Pardon me?

THE COURT: You are entitled to that. You are entitled to a fair and impartial jury.

MR. JACKSON: That's right. And for that reason -- I think the questionnaire would assist me in doing that.

THE COURT: It's never been done, as far as I know.

MR. JACKSON: Not in Philadelphia. It's been done in federal jurisdictions, federal courts, across the country. And I would be pleased to present to Your Honor --

THE COURT: You'll have to show me that. At any rate, we're not going to pay for that. The county is not going to pay for that.

MR. JACKSON: No, no, Your Honor, I'm not asking that the county pay for that, because I appreciate the unusual nature of this. I just want to be certain that Your Honor would in fact give me an order, so that I can give it to the jury commissioner, that would allow me to get the names and addresses of those prospective jurors, so that I could conduct that survey.

THE COURT: There are certain dangers to that procedure.

MR. JACKSON: There are certain dangers in Mr.

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Jamal's trial, at best.

I assure this Court that there is no intent to tamper with any prospective juror. We would, in fact, not indicate that the case involves Mr. Jamal, Your Honor, or anyone else in particular. It would be simply a general survey.

THE COURT: What's your Constitutional basis? Are you basing this on some Constitutional right?

MR. JACKSON: His right to a fair and impartial jury, Your Honor.

THE COURT: Are you not given that when you go into the courtroom and given the right to interrogate the prospective jurors in as full a manner as the trial judge allows, and you are given certain challenges for cause and given peremptory challenges, like anybody else whose client has been charged with a crime?

MR. JACKSON: I understand that.

THE COURT: What you are saying is that you don't think the present system, questioning the jurors, gives you sufficient protection under the Constitution.

MR. JACKSON: That's right, particularly in this case. And I am saying -- I am not talking about any other case, I am simply talking about this case, where in fact there has been such tremendous publicity, where, in fact a case holds such a potential for polarizing the community, where in fact there has been so much discussion and suspicion in this case -- I am saying that in this case I think that the only way that I can be assured that I am getting the best possible --

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THE COURT: I don't agree with you that there is going to be such polarization of the community. This is a murder case. You are being given every possible avenue of approach to represent your client. I have spent more time on your petitions than in any other case I have had in a long time. Because of publicity I decided to let you have every opportunity you wanted. But I don't think there has been any indication so far that there has been any concerted attempt to turn this into a racial incident. It's a case. It's a murder case. You're going to have witnesses and a trial. And as far as I am concerned you will get every right that you are entitled to. And so far I haven't seen any evidence that anybody has turned this into a racial incident. I know you have referred to it several times this morning. I understand the facts of life. But I am not going to let you turn this into a political or a racial thing. This is a murder case, and it will be handled in the same fashion -- perhaps with a little more care -- as any other --

MR. JACKSON: Your Honor, I don't want to mislead the Court in suggesting that this incident is a racial case. But I am suggesting that it is there. And --

THE COURT: It's not a case, where somebody says, "Let's go out and have a riot and kill everyone of the opposite race." This is a murder case, where somebody is charged with killing somebody else. The deceased was a human being and the accused is a human being. And I think there have been a lot of unfortunate attempts to bring out racial characteristics

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in this case that aren't there.

MR. JACKSON: I don't want to do that.

THE COURT: Up to now there has been no indication of that on the part of the Court or the District Attorney's office, has there?

MR. JACKSON: It's implicit, Your Honor.

THE COURT: Implicit in whose eyes?

MR. JACKSON: In the facts of the case.

THE COURT: I disagree with you.

MR. JACKSON: Please understand what I am saying. I am not saying that that is in fact the paramount reason for my request, the racial overtones in the case. Again, I think it goes to the fact that the deceased is a police officer, that Mr. Jamal is a journalist, the case has received a tremendous amount of publicity, and also based on my research of the surveys that have been conducted across the country -- and indeed in Philadelphia -- suggesting indeed that the jurors, prospective jurors, would come in with a bias.

Again, it's my understanding that it's never been done in the Philadelphia Common Pleas Courts, with respect to having the questionnaire done in advance.

THE COURT: If you can show me where it's been done in any area of the country, I'll take a look at that.

MR. JACKSON: I would be pleased to present that to Your Honor.

THE COURT: You have to recognize one fact.

MR. JACKSON: Yes, Your Honor?

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THE COURT: Picking a jury depends upon the skill of the attorney who is doing the picking.

MR. JACKSON: Yes, sir.

THE COURT: And in some cases they have psychologists sitting at their elbows, and in some cases they have done background checks. That's part of the trial process.

MR. JACKSON: I understand that.

THE COURT: And there will be plenty of time for you to question the jurors and determine in your mind whether you have some challenge for cause. If your instinct tells you something, you have a peremptory challenge. And if the trial court feels it is proper, the court could even permit some more peremptory challenges. That's up to the tria1 judge.

MR. JACKSON: I appreciate that. I'm not shrinking away from my responsibility as counsel to participate in the selection process. I am simply saying that as expert as I am, I want to become more expert in this process.

THE COURT: Sometimes a juror is apt to fool you by saying something in the questionnaire, then get on the stand and look you in the eye and tell you one thing, then get in the jury box and do something else.

MR. JACKSON: I understand that, Your Honor.

"Have you heard anything about this case?"

"No. Well, yes, maybe a little bit."

"Is that going to affect your decision?"

"No, not at all."

I understand that. And that's the point. They

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will say anything. But the questions that I propose to ask will not in any way indicate what case we are conducting the survey about. The questions would allow me to obtain some information about the background of the prospective juror so that when the juror does come on the stand knowing, "Ha, ha, ha, this is the Jamal case, I want to serve on the jury on this guy, I'll lie, cheat, steal, do anything to get on this case," I want to insure that that doesn't happen. And I think this is an appropriate way to do that.

THE COURT: The questionnaire is not going to ask them about this case at all?

MR. JACKSON: No. Absolutely not.

THE COURT: You just want to find out if they are truthful, honest, decent people who never tell a lie?

MR. JACKSON: No. I couldn't do that.

THE COURT: What do you propose to ask?

MR. JACKSON: Questions with regard to their background, where they live. I want to know where the people are, Your Honor, so that in addition to the questionnaire I will also have an opportunity to send people to the neighborhood, perhaps, to check to see how they live, what are their re1ationships to the criminal justice system and what hidden hostilities they have in the hidden recesses of their subconscious mind, what, their childhood problems were that might allow them to be triggered by something in the courtroom. If I could find that certain information I would certainly benefit from it.

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THE COURT: Do you think you could find all that through this questionnaire?

MR. JACKSON: I don't know. But I think the process is essential to --

THE COURT: You know about finding the proverbial snowball someplace? That's about how much chance you'll have to really find out what's in somebody's mind. However, if you say it's been done in other jurisdictions, show me where it's been done, and in what context, and I'll take a look at it. Those are your motions?

MR. JACKSON: Yes, sir. I have the formal motions now, Your Honor.

THE COURT: Do you want to submit copies of them right now?

MR. JACKSON: Yes, sir.

THE COURT: All right.

MR. JACKSON: And, Your Honor, I think -- specifically dealing with the discovery information, I have a specific concern that that be done as quickly as possible. As Your Honor knows, we have the 180-day rule that's coming upon us, and I want to be certain that I have that information prior to the time of trial.

THE COURT: As you pointed out, it won't do you any good after the trial, will it?

MR. JACKSON: No. And that's the whole point. The Police Department has indicated that while this case is

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pending they are not going to give me the information. And it may be of curious interest after the trial, but it serves no substantive purpose then.

And Your Honor, with regard to the lineup, I obviously need Your Honor's decision on that lineup, in that Mr. Jama1 as you know, has come through the hallways of this City Hall with a coat hanging over his head, and I think it's an undignified manner for him to come to court. And I have waived his appearance here today because of that, but I would not like to waive his appearance in the future.

And I am asking Your Honor that in fact the district attorney indicate which eyewitnesses they intend to bring in, and that we have the opportunity to have a lineup conducted. It seems to me that the burden on the Commonwealth is very slight, Your Honor, as many facilities as they have.

THE COURT: For the record, I have not subjected Mr. Jamal to any demeaning treatment.

MR. JACKSON: I am not suggesting that the Court in any way has participated in any demeaning conduct, Your Honor. I am suggesting, Your Honor, that the photographers in the hallway, when Mr. Jamal comes to court -- they are clicking away. And I am suggesting that they are infringing upon his right to have an orderly lineup. And for those reasons I have hidden him. And that's the way the man wants to come to court.

THE COURT: Well, we live in a democracy, and because of that I can't really restrict the freedom of the press.

MR. JACKSON: Fine. And because of that democracy,

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I want a lineup. And, as I say, I feel the burden upon the Commonwealth is very slight.

THE COURT: Do you have those motions, Mr. McGill?

MR. MCGILL: Yes, sir.

THE COURT: Let's take them right down the line. First, what possible witnesses are you talking about, as far as a lineup is concerned?

MR. MCGILL: There will be three eyewitnesses, Your Honor. All statements have been given to the defendant, to Mr. Jackson. There will be three eyewitnesses who will testify to -- what the Commonwealth intends to prove -- was the execution of Officer Faulkner.

MR. JACKSON: May I have those names?

MR. MCGILL: Let me --

MR. JACKSON: I'm sorry. My apologies.

MR. McGILL: I do have a lot to say, and I am attempting to summarize it as best I can. Two of those witnesses Your Honor has already ruled upon. My suggestion is that the third eyewitness also would not be properly -- excuse me -- the evidence concerning the third eyewitness is such that it would not be appropriate for a lineup. And I will explain why. Mr. Albert Magilton is the name of the third eyewitness.

Mr. Robert Chobert and Cynthia White are the other two.

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Mr. Robert Chobert, as well as Cynthia white, are the witnesses that Your Honor has already ruled on. Now, Mr. Magilton, Your Honor, is very similar to Mr. Chobert, and the same argument, really, applies. I suggest to the Court, in very brief fashion, the Commonwealth states that Mr. Magilton, much like Mr. Chobert, not only observed the incident from a relatively close position, but then walked up to the incident when the police arrived, then was shown the defendant in a wagon and was asked: "Is this the man you saw?"

His response: "Yes."

This is anything but what Sexton wants for a lineup.

As Your Honor we11 knows, the Sexton case deals with a situation where you have a brief glimpse of someone who then takes off, is not seen, and, because of an investigation later, he is picked up.

And there is a fear that there may have been some suggestiveness or there's a fear that since he had not seen him for a length of time that perhaps there could be a violation there.

In this case, much like all the cases where you have an on-the-scene identification -- that's what this is -- if it's the subject of a motion to suppress, fine, it should be handled at that time. At this point, however, Your Honor, it makes really -- and I suggest to the Court -- and perhaps Mr. Jackson did

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not know this aspect of it -- that Mr. Magilton in fact went up afterwards, seeing what he could do, what the problem was. Obviously, he saw what happened. But, being concerned, he went up. And he was shown the defendant while he was in the wagon.

"Is this the man who did it?"

"Right."

There he is. He's looking right at him. No brief glimpse, no rushing away, no investigation afterwards.

THE COURT: You are saying that he had the scene in his sight the whole time, never left the scene?

MR. MCGILL: That's right. He never left the scene. And he went directly up to the scene afterwards. In other words, from where he was -- he obviously did not go up to the scene during the course of the shooting. It was after the shooting and when the police officers came that he went up to the shooting, Your Honor, and then looked at the prisoner, the defendant, and identified him as the man that he saw.

THE COURT: Let's take that up right now, Mr. Jackson. This is not a situation where somebody looked at somebody and didn't see him again for a long time later and is going to come to court and say, "That's the person I saw that night a year ago."

MR. JACKSON: Your Honor, if you recall the original lineup petition that I submitted to you, Mr. McGill made certain representations to you. Based on those representations, Your Honor said,

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"Fine, we do not need a lineup." And Your Honor did rule as to two -- I did not know the name of the other individual, and I believe I'm being told now that the second person was Chobert.

MR. MCGILL: That's right. Those statements you have.

MR. JACKSON: Fine. I would like to specifically address Mr. McGill's comments with regard to Mr. Magilton. The statement that I have:

"Did you see the shooting?"

"No. I just heard the shooting. And when I turned around I saw the officer on the ground."

Now, if he didn't see the shooting, how is he going to say that he saw who did it? That's their statement. I could go on. That's their statement.

THE COURT: You're going to have cross-examination at trial.

MR. JACKSON: Of course I'll cross-examine at trial. But the point that I am making is that they are saying that he is an eyewitness and he didn't see it.

THE COURT: That's not the question before me. The question before me here is: is he going to be presented as an eyewitness to something that he saw, or is he just going to say, "I saw somebody on the ground, I saw somebody else sitting there"?

MR. JACKSON: Mr. McGill is saying that he is

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being offered as an identification witness. And I am suggesting that this man cannot be an identification witness, Your Honor, if he didn't see it. And now he's telling Your Honor that yes, he saw the shooting, he saw this and saw that, and he kept him in sight the whole time.

Again, unless they have information that's not been made available to me -- and again, Your Honor, as to that extent, I am relying on the discovery information they have given me. It says, in fact and throughout this statement -- that he didn't see it.

So I don't know what they have told him since then, or what someone has told him since then. I am suggesting to this Court that if he is being offered as an eyewitness, then he needs to see the person do it. He can't come in an say, "Well, when I got there a half an hour or two hours later I saw the officer on the ground and somebody called me over and I looked in the police wagon and told them that's the person I saw on the scene." And that's the essence of this statement.

THE COURT: That's the purpose of trial, to determine who saw what, and so on. We are dealing here with whether or not there is a need for a lineup.

MR. JACKSON: Yes, sir. And I am saying, Your Honor, that if in fact this man is now going to be offered as an eyewitness because he has changed his statement or there's another statement that indicates that he saw who did the shooting -- I am requesting, if that be the case, that a lineup be

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conducted. That's all. If he is not being offered as an eyewitness I will withdraw my motion as to this man. It's very simple, Your Honor. I will withdraw my motion if he is not going to be offered for that purpose.

THE COURT: You are asking whether he was an eyewitness to the actual shooting?

MR. JACKSON: Not necessarily whether he was an eyewitness. I am asking whether he is going to be called as an identification witness to identify Mr. Jamal as the person who shot Officer Daniel Faulkner.

MR. MCGILL: Your Honor, I was unaware that the statements would be read to the Court, so I did not bring all of my statements over. May I take a look just for a second?

THE COURT: Oh, sure.

MR. JACKSON: Mr. McGill is suggesting that there is another statement. If there is, I only have one statement.

MR. McGILL: If I might have --

MR. JACKSON: I'm sorry. There is a second statement.

MR. McGILL: Would Your Honor mind just a moment?

THE COURT: No. Go ahead.

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MR. MCGILL: Your Honor, may I proceed?

THE COURT: Yes, sure.

MR. MCGILL: In reference to these two statements, Your Honor, which were given to Mr. Jackson, in relation to

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Mr. Magilton, the identification testimony of that witness, Your Honor -- and perhaps in my own representations there may have been some confusion in the way that I expressed its -- Mr. Magilton did in fact confront the defendant in the wagon, sir, and identified him as the individual. What he said --

THE COURT: As what individual?

MR. McGILL: The individual who did the following: that he had moved across the street -- consistent with Miss White's testimony -- from the area of the parking lot and moved straight across, directly between the Volkswagen and the police car. And he then went there, in that direction.

At that time, when he moved forward there, he did not see the actual shooting at that time. He, however, will identify -- and was confronted with -- the defendant as the man he saw running in that direction a few seconds before the shots were fired. That is what it was, Your Honor.

THE COURT: So it was an on-the-scene situation?

MR. MCGILL: Yes.

MR. JACKSON: Of what?

THE COURT: The man he saw running across the street.

MR. MCGILL: A moment before the shots were fired. Now, if Mr. Jackson wants to argue that he did not see the shots, which he did not see the gun down and being fired, I would agree that that is correct. So that was an error on my part, if I gave that

Page 28.

impression, Your Honor.

The other fact, Your Honor, is another witness -- and I believe, since there were some -- we're talking, Your Honor, approximately 49 witnesses, statements that were handed over -- I believe that at that time I may have confused the shooting which was observed by Mr. Chobert with Mr. Magilton.

However, one witness, particularly one witness who saw the actual shooting incident, will not be an identification witness, simply because he has said to me that he does not know whether he could or could not identify. So I would not use him as an identification witness.

But, Your Honor, we are talking about -- and what I want to make clear to the Court is, number one, Cynthia White has stated directly, under oath, on two occasions, once before this Court, that Mr. Jamal was in fact the man who shot the officer while he was on the ground -- and I won't go through all of that. Secondly, the other eyewitness will in fact testify that Mr. Jamal was the man who did that. Third, another witness will testify --

MR. JACKSON: Could we just do one witness at a time, Your Honor.

MR. MCGILL: Your Honor; may I respond?

THE COURT: Yes.

MR. MCGILL: The third witness, Your Honor -- which is not Mr. Magilton -- will testify to the actual shooting of the officer, but he is not sure of identification himself. So he will not be called for the purposes of identification.

Page 29.

Number 4, Mr. Magilton, will testify that the individual running across the street from the parking lot directly toward Officer Faulkner who, by the way, Mr. Magilton had talked to shortly before -- in other words, Officer Faulkner had talked to Mr. Magilton -- he was the last one he talked to alive, was Mr. Magilton.

At that time, when he stopped and talked to him, Your Honor, at 13th and Locust, the next thing he did was move forward. And then, that's when Officer Faulkner stopped the car that Mr. Cook was driving at the time.

Mr. Magilton will testify that he then turned around and saw an individual being pulled over. He saw that. And he then saw an individual whom he will identify as Mr. Jamal running from the parking lot moments before, if not seconds before, he heard the number of shots. He then goes over and identifies the man who was running across the street just before the shots were fired.

THE COURT: You see, Mr. Jackson, even if he couldn't identify the face at that time, that's irrelevant to the on-the-scene identification later on. You have to cross-examine there as to what opportunity he had at the time to observe --

MR JACKSON: I understand. But the problem is Your Honor, accepting the representations of counsel. I can give you the statement to look at. Number one, he didn't see Mr. Jamal run, he saw a man walk. And he never said that the man ever crossed the street, the man, whoever it was, that he

Page 30.

saw.

He saw a man walking from a parking lot, never saw the man cross the street, never saw Mr. Jamal do anything at all. Counsel is suggesting to you that he saw Mr. Jamal --

THE COURT: That's not the issue here. The issue is whether there is a necessity for a lineup. What's the necessity for that?

MR. JACKSON: Because he's saying that he's going to identify Mr. Jamal as doing something, and I want to know what he is going to identify him as doing. If he's going to identify that he was the man in the wagon, we'll concede that Mr. Jamal was arrested and was in the wagon.

THE COURT: That's independent of any identification at this stage of the game. In other words, he was asked at the time, "Is this the man you saw a few moments ago doing X, Y and Z?" That's totally independent of any lineup or any in-court identification.

MR. JACKSON: There is nothing in his statement that would indicate that he can identify Mr. Jamal. Again, I'm being placed in a position of accepting Mr. McGill's words -- and I have two statements from Mr. Magilton -- where counsel comes in and says, "Yes, he can identify him." And I think that we have already heard counsel back up from his original position as to what Mr. Magilton saw.

Page 31.

There is nothing in the four corners of any of those statements that says Mr. Magilton can identify Mr. Jamal. What am I to believe, Your Honor? There is nothing in these statements that says that. Counsel is saying he can identify him. In these statements it says he didn't see anybody shooting, didn't see anybody cross the street.

THE COURT: What's the point?

MR. JACKSON: The point is he's saying he's an identification witness. And I want to know how is he an identification witness.

THE COURT: Well, as to identification, he could say he just saw the clothing and later saw a man with that clothing walking across the street.

MR. JACKSON: Well, I don't even want to get into that, Your Honor, at this point. What I am saying is that Mr. McGill is saying that Mr. Magilton is an eyewitness. And it would seem to me that if Mr. Magilton is an eyewitness, Your Honor, it should be in some document that I received. And it's not in here.

THE COURT: Well, if he is not an eyewitness to anything, then at the trial --

MR. JACKSON: Am I going to have to wait until trial, Your Honor?

THE COURT: What do you want to do now?

MR. JACKSON: I want to find out if he's going to be an identification witness, Your Honor, so I can have a lineup. It's just that simple.

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THE COURT: I think Mr. McGill has already said he's not going to say that he can identify the face of the person who did the actual shooting.

MR. MCGILL: Right. To make it very clear, Your Honor, in terms of Mr. Magilton, he did not actually see the shooting itself.

THE COURT: All right. He will identify Mr. Jamal as the man who came across from the parking lot area toward the scene shortly before the shots were fired.

MR. JACKSON: Okay.

THE COURT: There's your answer.

MR. JACKSON: Your Honor, Mr. McGill is saying Mr. Magilton is going to say all these things. And I'm saying; "Where is the statement that says that? Where is the statement of Mr. Magilton that says that?"

Mr. McGill could tell you that each of the 49 witnesses are going to identify him. Am I supposed to accept his word?

MR. MCGILL: Your Honor, you know --

THE COURT: You don't have to accept anything.

MR. JACKSON: The point is, this is the statement. I think I have a right to challenge the Commonwealth with regard to identification. He's saying Mr. McGill is saying --

THE COURT: Challenge in what way?

MR. JACKSON: Pardon me?

THE COURT: Challenge the identification witnesses in what way?

Page 33.

MR. JACKSON: To challenge the Commonwealth to present a lineup for Mr. Jamal.

Again, Your Honor, I'm being forced into a position where Mr. Jamal --

THE COURT: You're not being forced into anything. A lineup is not a matter of right in every situation with every witness, you know.

MR. JACKSON: I understand that. And I am not suggesting that, Your Honor.

THE COURT: If somebody saw something for a couple of fleeting seconds and then sometime later says, "I can identify the person," you give him a lineup to find out. But that's not the situation here.

MR. JACKSON: Why not, Your Honor? Because, obviously, based on the statements that I have, that the Commonwealth has given me, it says in this statement that Mr. Magilton, aside from the fact that he spoke to Officer Faulkner earlier -- he says that he came upon the scene and that he saw someone walking near the parking lot, that he could not identify the person because he was eighty feet away. He didn't see the shooting.

So my question is: who or what can he identify? The statement would suggest that he can't identify anyone. And now counsel is coming in and representing to the Court, "Yes, he can." And I am saying, Your Honor, that according to his statement he can't.

Now, I don't know what has been said to Mr.

Page 34.

Magilton or what has --

THE COURT: If he can't identify anybody, then at --

MR. JACKSON: So how can we make --

THE COURT: -- the trial you will go into that on cross-examination.

MR. JACKSON: You are saying that at the trial I can get into that. But I am saying that if he is being offered as an identification witness, where we know in fact that this man has not continuously seen any individual, particularly this individual that he may have seen walking --

THE COURT: I don't think -- I understand your argument, but I don't think it's really going to the issue here. I don't see any need for a lineup for Mr. Magilton now.

MR. JACKSON: When will we have the lineup, Your Honor?

THE COURT: I don't see any need for a lineup at all. It's not going to prove anything one way or the other.

MR. JACKSON: I'm saying that this man says in the statement that he can't identify this person he saw walking, and Mr. McGill is saying that he is going to come to court and identify, be an identification witness. And Your Honor is saying I can't get a lineup.

It seems to me that Mr. McGill is contradicting the statement of the witness, that he is going to call him as a witness at trial, put him on the stand in front of a jury and say, "Can you identify Mr. Jamal?"

Page 35.

And I am saying, Your Honor, if he can identify him, he can; if he can't, he can't. So it seems to me we should have a lineup. What burden is the Commonwealth put to?

THE COURT: Is this witness going to be called to identify Mr. Jamal?

MR. JACKSON: I don't know, Your Honor. According to his statements he can't even identify him as being at the scene. That's according to his own statements. As far as being in the wagon, we'll concede that.

MR. MCGILL: Your Honor --

THE COURT: We don't need anything from the audience. I'm not going to be intimidated by the audience one way or the other. We are giving Mr. Jackson every reasonable opportunity to explore all facets of the case. Now, if some members of the audience don't like my rulings, then we'll have them removed from the courtroom. I won't be intimidated by the audience.

MR. JACKSON: I am not suggesting that the witness is going to come in and say he can identify Mr. Jamal as the shooter.

THE COURT: And Mr. McGill has stated that on the record.

MR. JACKSON: But he is saying, as I understand it, that he is going to come in and identify Mr. Jamal as being somewhere in the area. And I am saying that if the Commonwealth

Page 36.

is being sincere and acting in good faith and giving me all of the statements of the witnesses, Your Honor, there is nothing in the statement of Mr. Magilton that suggests that he can identify Mr. Jamal as being any place there. And Mr. McGill says that he can offer this witness to testify that he saw Mr. Jamal running across the street.

Number one, this witness doesn't indicate that he saw Mr. Jamal running across the street. In fact, he never said that he saw anyone running across the street. He saw a man walking near the parking lot, approximately eighty feet away, Your Honor, and he can't identify him.

And I am saying to you, Your Honor, how can Mr. McGill say that at the time of trial they are going to put him on the stand, so he can identify Mr. Jamal as being there when the witness never said that.

THE COURT: Well, nobody is going to stop you from cross-examining at the time of trial.

MR. JACKSON: I know that I have the right of cross-examination.

THE COURT: And you can bring out all the statements that you have and confront him with those statements in an attempt to affect his credibility.

MR. JACKSON: I understand that. But it seems to me that under the circumstances, where we have an individual who is alleged to have seen certain things, that a lineup to establish his credibility is necessary.

THE COURT: Where there is a clear-cut issue of

Page 37.

identification of a person, where there is some question whether the person who comes into court is going to be able to identify the person, identify the face of the individual whom he says he saw at some time previously and where there was a minimal opportunity to observe the face, that's what a lineup is for.

MR. JACKSON: But this man says he couldn't see --

MR. MCGILL: May I interrupt just for a moment? I do want to clarify something, since there have been comments made about the statements.

I would like to respond by simply pointing out that, if you recall, I said that the witness, Mr. Magilton, after the shooting took place and when the police arrived, then proceeded up to the scene and identified him in the wagon.

Now, the statement, Your Honor, I would like to point out -- and I also said that he was coming from the parking lot area. And I used the word "running" at that point, because the word "running" was mentioned. He said in one of his statements -- and I want to clarify it for the record -- I honestly believe it's not really for Your Honor's decision in this matter, but just to clarify it -- he says on Page 5 of the 12-17-8l statement: "He was moving like a fast walk."

THE COURT: That's a matter of terminology.

MR. MCGILL: Which may be interpreted --

MR. JACKSON: Your Honor --

MR. MCGILL: Let me finish, please.

THE COURT: That's also something that can be

Page 38.

explored on cross-examination.

MR. JACKSON: But, Your Honor --

MR. MCGILL: Let me just finish, please.

Secondly, he says also, in the last statement that he gave, which Mr. Jackson has -- in the last question:

"Did you ever see the male that you saw walk out of the parking lot again?"

"The police had him on the ground. Then they placed him in the back of the wagon."

Again, we are talking about what I have stated. And what he will say is that at that point he went up and identified him in the wagon as the one that he saw walk across the street.

So I would wish that counsel, if he's going to make statements, would be at least complete in the statements being made before this Court.

MR. JACKSON: Your Honor, if I may, please, the fact that the police had a man on the ground and then placed him in the wagon -- I am conceding that Mr. Magilton will in fact identify the man in the wagon as the man that they had on the ground.

But Mr. Magilton says earlier in his statement that the man he saw at or near the parking lot -- he gives a description of him, gives a description of his clothing, and says he cannot identify -- he was, eighty feet away.

My point is, Your Honor, how can he -- and, again, remember that he saw this man and that he was moving in a car

Page 39.

and kept moving -- later on he came back --

THE COURT: That's an argument that you can make.

MR. JACKSON: But the point is, Your Honor, how can he be sure that they are the same person? And I'm saying only a lineup --

THE COURT: No, I don't think a lineup is going to -- a lineup after the incident is not going to help you in that regard. That's your argument to the jury.

MR. JACKSON: To the jury? Fine, sir. If Your Honor makes your ruling, fine.

THE COURT: Yes.

MR. MCGILL: I want to make clear that both Miss Cynthia White and Mr. Chobert will clearly identify the defendant as the man who goes over and shoots the deceased, Officer Faulkner.

Also, a Mr. Robert Harkins will state -- will testify about facts concerned with the shooting of Officer Faulkner, Your Honor, as the man stood over him, reaching, looking down and firing at him when he was on the ground, although he says that from his vantage point he could not identify -- he cannot identify for sure who it was. So he will not be called to identify Mr. Jamal. He may be called to show the jury the action, which would be consistent with the testimony of the other two witnesses.

THE COURT: I am denying the motion for a lineup as to Mr. Magilton.

MR. JACKSON: Fine, sir. With regard to Mr.

Page 40.

Chobert, we have the same situation. Mr. Chobert did not see who shot. He heard shots and then turned around. Again, he did not see anybody doing any shooting.

THE COURT: All right.

MR. JACKSON: I don't know what the Commonwealth is -- again, there is nothing in the statement. And, Your Honor --

MR. McGILL: Your Honor; I would flatly disagree with that statement. And if Your Honor wants to go over both of the statements, I will gladly do that. But that is an inaccurate reflection of what Mr. Chobert's statements say.

THE COURT: Not really. I don't have to decide who is telling the truth in a statement at this --

MR. JACKSON: That's just the point, Your Honor -- and I don't think you should be put in the position of determining who is telling the truth. But again, Your Honor, the only indication that you have and you have made your ruling with regard to Mr. Magilton -- the only indication that you have that Mr. Magilton can identify anyone is from Mr. McGill. But, again, you have made your ruling, Your Honor, and I am not going to debate that.

We now have the same situation with regard to Mr. Chobert. I suppose counsel is going to say, "Oh, yes, he can." But the statement says, "I did not see the shooting." The statement does not --

MR. MCGILL: I object.

MR. JACKSON: May I finish, counsel?

Page 41.

MR. MCGILL: May I finish?

THE COURT: Let Mr. Jackson finish.

MR. JACKSON: Thank you. The statement does not indicate that he can identify Mr. Jamal. A11 I am saying, Your Honor, is if in fact Mr. McGill has these witnesses, Mr. Magilton, Mr. Chobert, any of the 49 witnesses -- if they are saying they can identify Mr. Jamal, I think I have a right to know that, Your Honor. And I am coming in here today and being told --

THE COURT: That's what the discovery rules say: eyewitnesses have to be provided to you.

MR. JACKSON: Yes, sir. And I am being told that Mr. Magilton is an eyewitness. His statement doesn't indicate that, but I am being told that. I am being told today that Mr. Chobert is an eyewitness, and his statement doesn't indicate that, Your Honor.

THE COURT: You are not being denied the names of any witnesses. Basically, that's what the rules of discovery provide. As far as I can see, you are being given the identity and the names of all witnesses. Right?

MR. JACKSON: Yes, sir.

THE COURT: Now, if those discovery rules are violated I want to know about it. You are entitled to get the names of all witnesses, eyewitnesses, those who were on the scene, and so on. And as far as I can see, you are being given all of that information.

MR. JACKSON: We'll get to that issue, Your Honor,

Page 42.

as to whether or not I'm getting everything.

THE COURT: All right. That's another question. That takes care of your motion as to Mr. Chobert, right?

MR. JACKSON: So you are going to deny the motion as to Mr. Chobert as well? Even though there is no indication that Mr. Chobert can identify him, you are going to let him get on the trial stand and identify him?

MR. MCGILL: If I may interrupt, it's a matter of fact -- first of all, this lineup hearing is getting into the area of arguing over statements --

MR. JACKSON: Because the statements don't say --

MR. MCGILL: May I finish, please?

THE COURTS: There is one point you have to keep in mind: how are you going to handle these witnesses? What is Mr. Chobert going to get on the stand and say?

MR. MCGILL: I have already made up my mind. And I told the Court at the last hearing, when we talked about a lineup. And that has not changed.

THE COURT: And your answer then was what?

MR. McGILL: They are not going to get up in the courtroom and identify the defendant as the shooter. They will do just as I said before. Miss White and Mr. Chobert will -- may I finish, please?

MR. JACKSON: I haven't said a word.

MR. MCGILL: On Page 2 it says this --

Page 43.

THE COURT: If they are going to say --

MR. MCGILL: May I finish, please? I would like to point this out, Your Honor, because I am hearing inaccuracies stated before this Court.

THE COURT: All right.

MR. MCGILL: "Would you be able to identify the man that shot the cop if you saw him again?"

The answer in the statement is: "Yes."

And I would ask Mr. Jackson would he read the statement before he starts making comments.

MR. JACKSON: Whose statement is that?

MR. McGILL: Mr. Chobert's.

MR. JACKSON: Did you see the shooting?"

"No."

THE COURT: Do you want a lineup as to Chobert?

MR. JACKSON: Yes, sir. The questions is: "Did you see the shooting?"

"No."

That's in his statement.

MR. MCGILL: Your Honor; again, it's an inaccuracy.

MR. JACKSON: Your Honor, I'll give you the statement.

THE COURT: Let him finish.

MR. MCGILL: Your Honor has already ruled on the lineup as to Mr. Chobert. And you have already ruled upon Mr. Magilton's identification.

THE COURT: But if you are telling me that they

Page 44.

are going to get up in court and identify the defendant, then I think perhaps a lineup might be in order. If you are saying that Mr. Magilton is not going to take the stand and say he can identify the person who actually did the shooting because he didn't see the actual shooting, then a lineup is totally irrelevant.

MR. McGILL: Your Honor, I -- if the Court can recall, I did in fact state at the first time the lineup motion was argued, which was before the preliminary hearing -- and going through a rather long argument -- with Mr. Jackson being present -- Your Honor had ruled then -- and I had stated that they would identify the defendant -- and particularly Mr. Chobert, since, as a matter of fact, in his statement he says yes, he can do it, that is, identify the man who shot the cop. He says, "Yes, I can identify him."

And I explained the circumstances of the identification, how he went up to the scene and was shown the defendant and identified the man at the time.

Your Honor, I think that this is an on-the-scene identification, again. And Your Honor has already ruled on this. And it's exactly the same, what I have stated before. They have identified the defendant as the shooter.

THE COURT: Who?

MR. MCGILL: Miss White and Mr. Chobert.

THE COURT: All right. As to Mr. Magilton, I am denying the lineup. As to Chobert and White, I am going to review -- I will reserve decision with regard to Chobert

Page 45.

and White. I want to see exactly what was said at those hearings. I want to review exactly what was said by counsel.

MR. JACKSON: And that's the argument that I made earlier, after the initial ruling with regard to the lineup, that counsel came to you and made certain representations as to what the witnesses would say. I said Cynthia White didn't say all of those things, that it was only counsel who said all of those things.

THE COURT: Well, I will review the situation with regard to Chobert and White.

MR. McGILL: I would also point out that on Page 3 of Mr. Chobert's statement, at the end, it does in fact say that the officers came over to him, asked him if he saw the man that did the shooting again would he be able to recognize him. And Mr. Chobert says, in the statement on Page 3: "Yes." The answer is: "Yes."

"Then he" -- this is Mr. Chobert talking -- "Then he" -- the officer -- "took me over to the wagon and opened the door, and I saw the male in the back of the wagon. And I told the officer it was him that I saw do the shooting."

Judge, isn't that exactly what I said? He saw the shooting. He said it. That part was not read by Mr. Jackson.

THE COURT: That is Magilton's statement?

MR. MCGILL: This is Mr. Chobert's statement, sir. He said he could identify the man. He said it then, he

Page 46.

will say it at trial.

THE COURT: Well, I want to give consideration to the lineup as to Chobert and White. The next matter is removing Mr. Jamal from administrative segregation.

MR. JACKSON: That's correct.

THE COURT: What's your position as to that, Mr. McGill?

MR. MCGILL: Your Honor, I have -- whatever Your Honor feels is appropriate. I'm not ---

THE COURT: Why was he put in administrative segregation?

MR. JACKSON: Well, Your Honor, what, in effect, happened -- after he was shot and wounded he was in the hospital wing of the detention center. And he was placed there for medical reasons. After he recovered, Your Honor, it just dawned on us that they just kept him there. And he has had an opportunity to speak to and see about six people since his arrest on December 9th.

The detention center itself -- I'm sorry -- the hospital wing is just a wing of the detention center. And we have requested that he be allowed to go into the general population. There is no reason for him to be there.

I'11 be very candid with the Court: Superintendent Owens has indicated that he thought it would be good for Mr. Jamal's protection to be there, Your Honor, because there might be some psychopath that might want to get some publicity and do something to Mr. Jamal.

Page 47.

But my point is that if he wanted to punish Mr. Jamal he would do the same thing, he would put him in segregation. There is no reason for him to be there. Mr. Jamal wants to be among the general population.

THE COURT: Segregation is not a form of punishment. He just has a cel1 in an administrative area.

MR. JACKSON: No, sir, it is a form of punishment. If you look at the prison regulations with regard to -- they have infractions -- there is Prison Infraction 3, the most severe of which is administrative segregation.

THE COURT: He's still in a cell, the same type of cell.

MR. JACKSON: Well, he's in the same type of cell, Your Honor, but --

THE COURT: It's not like burying him in the ground in a box. You make it sound like he's being --

MR. JACKSON: I'm not saying --

THE COURT: All right, I'11 order him returned to the general population.

MR. MCGILL: May I state for the record --

THE COURT: That's your request?

MR. JACKSON: Yes, sir. Thank you.

MR. MCGILL: I would like to state our position now. And I completely agree with the Court's ruling. I would state that --

MR. JACKSON: Great.

Page 48.

MR. MCGILL: I understand what Mr. Jackson is saying. But in this case, Your Honor, he was put there for his own protection. However, if he wants to go into the general population, that's fine with us, as long as he stays in custody.

MR. JACKSON: Fine. Thank you very much, Your Honor.

THE COURT: He's not going to be released from custody.

MR. JACKSON: I'll prepare an order, Your Honor.

THE COURT: And I'11 sign it. Now, the next matter has to do with the Internal Affairs files on the alleged brutality charge.

MR. MCGILL: Yes, sir.

Mr. Jackson, basically, has used the authority of Mayor Green's Executive Order 180, Your Honor, and has pressed this, stating that it was essential and important that he receive the information.

However, I would bring to the attention of the Court that Executive Order 180 -- it's not a question of the police not wanting to give anything -- it says, Your Honor, that -- and I am referring to "Public Access and Maintenance of Records" -- "Where the incident which is the subject of the complaint has resulted in criminal investigation or prosecution of any party, the investigative report shall not be available until the criminal charges have been resolved or the investigation is completed."

The criminal charges obviously have not been

Page 49.

resolved, Your Honor, and the investigation, which was initiated by the complaint of Mr. Jamal, is not concluded.

Your Honor, that is what the Executive Order says, and I have read the restriction placed upon it. And this is the authority that Mr. Jackson uses to --

MR. JACKSON: I --

MR. MCGILL: May I finish, sir, please? You may be pleased with my position at the end, counsel. I have received, also, a letter from Mr. Jackson requesting information. I have written Mr. Jackson a letter, dated March 9th, stating that the District Attorney's Office has already supplied discovery relating to the shooting death of Officer Daniel Faulkner, in compliance with the court order.

I understand, Your Honor, that Mr. Jackson has also requested interviews relating to the investigation of Internal Affairs that originated through Mr. Jamal's complaint. In order to assure full compliance with the discovery rules, I am now requesting that all statements from police and civilian witnesses be provided to our office so that they we may distribute them to the defendant and his attorney.

So, Your Honor, my position is as follows: well, let me first say that this is a police investigation, Internal Affairs investigation, which was initiated solely by the complaint of the defendant and counsel for the defendant. The District Attorney's Office has not been requested to conduct an investigation into this. It is a police investigation,

Page 50.

Internal Affairs.

So the order is clear. However, under the discovery rules, Your Honor, it would be my position that I believe the Court can well order the Police Department to hand over the interviews of the witnesses, police and civilian. That is my belief, Your Honor, because I am interested in the defendant getting everything in terms of discovery. And I have attempted to show -- there are fifty statements, Your Honor, all in his possession. Anything that I could get, or copies of these things that we retained, have been given to him at various dates in the past.

Our position as to these interviews from policemen and civilians -- we would like the defendant to have them and the defendant's attorney to have them. As a matter of fact, they may be discoverable, Your Honor, in the narrow outline of the discovery rules -- it is most likely within the portion of "discretionary" material, which, in the interests of justice, he should have.

This is also Mr. Rendell's position, Your Honor. Everything I have said today is the position of the District Attorney.

THE COURT: Well, that material -- I don't know if it is really relevant, or if it will really help him, because the events presumably occurred after the incident in question.

MR. JACKSON: No, sir. That's just the point. There are some beatings that occurred afterwards, no question. But I am saying --

Page 51.

MR. MCGILL: I object to that, Your Honor. I object to those gratuitous statements, Your Honor.

THE COURT: You are saying there were some beatings after the shooting?

MR. JACKSON: Yes. We have demonstrable proof that he was beaten. And if a police witness comes in and testifies and we can show that he may have a certain bias because that police witness may be subject to criminal prosecution, I feel that's relevant.

THE COURT: You want this, then, for the purpose of cross-examining police witnesses?

MR. JACKSON: Absolutely.

MR. MCGILL: May I, Your Honor --

MR. JACKSON: Excuse me.

MR. McGILL: I'm on your side on this one. May I encourage Your Honor to give the interviews to Mr. Jackson?

THE COURT: You want an order directing the Police Commissioner to turn over those files?

MR. JACKSON: Everything in those files, yes, sir.

MR. MCGILL: I object to that. Now, Your Honor, that flies --

THE COURT: We don't know what --

MR. MCGILL: That flies right in the face of the Executive Order.

MR. JACKSON: Could I say --

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MR. MCGILL: Mr. Jackson, may I finish, please?

MR. JACKSON: He's going on and on, Your Honor.

MR. MCGILL: Mr. Jackson says that I have been going on and on. Did you hear that, Your Honor?

THE COURT: What's your argument?

MR. McGILL: Your Honor, the Executive Order is clear on the restrictions. As to the extent that Your Honor would rule in accordance with the Rules of Criminal Procedure, it would be appropriate that the interviews be handed over, I believe. And I am willing to have that done.

As far as anything else -- of which I am unaware -- whether they be, as I say, white papers, analyses, whatever, that has not been completed. So that certainly should not be made available.

But the interviews that have been taken to date should certainly be made available to the defendant and I believe to anybody else, Your Honor, in compliance with the order.

MR. JACKSON: May I speak to the Court?

THE COURT: Yes.

MR. JACKSON: Your Honor, several issues.

THE COURT: Briefly.

MR. JACKSON: Very briefly, Your Honor.

Number one, an Executive Order cannot be issued to contravene the Pennsylvania Rules of Criminal Procedure or the Pennsylvania Constitution or the United States Constitution.

Secondly, this Executive Order says while there are criminal charges pending they don't have to give me the

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information -- or unless the investigation is completed.

So when they tell me they don't have to give me the information while the case is pending -- and again, Your Honor, it doesn't do me any good after the case is over, after Mr. Jamal's case is over --

THE COURT: You want the interviews?

MR. JACKSON: I want everything in that file, Your Honor.

THE COURT: But I don't know what that --

MR. MCGILL: I object to that, sir.

MR. JACKSON: Because there are items in there, Your Honor -- there are leads in there. What I am suggesting, Your Honor, is that in fact -- as an example, if you will, Your Honor, there may be -- Inspector Giordano, who testified against Mr. Jamal -- and this is hypothetical, Your Honor -- another Chief Inspector -- Inspector Frank Goldberg, I think -- is assigned to Mr. Jamal's internal complaint. He investigates the complaint that Mr. Jamal made, he talks to police officers, he talks to hospital personnel, and he finds out that indeed there is a great likelihood that Inspector Giordano struck Mr. Jamal while he was in the vehicles.

Inspector Giordano --

MR. MCGILL: Is this --

MR. JACKSON: Hypothetical.

MR. MCGILL: -- hypothetical?

MR. JACKSON: Yes.

MR. MCGILL: Make sure you make that clear.

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MR. JACKSON: It's hypothetical.

THE COURT: All right.

MR. JACKSON: If, then, Inspector Giordano --

MR. MCGILL: I heard there were leaflets handed out, and apparently --

MR. JACKSON: Your Honor, if I may --

THE COURT: Let him finish.

MR. JACKSON: If, based on those interviews that one inspector would take pertaining to the investigation of an assault by another inspector, that inspector, Inspector Giordano, might be subject to criminal charges if the District Attorney's Office would do their job and arrest him for that assault -- my point is, Your Honor, if that were the case, then Inspector Giordano would obviously have a bias when he testifies in court. And if so, I need to know that, I need to have that information, Your Honor, to know that he may have that bias in his testimony to protect himself from criminal charges.

I think it's very clear. And, as Your Honor well knows, in all criminal charges we have a right to go into a witness' background to see if there's a bias on the part of the witness when he testifies. And I am not able to determine that at this point, Your Honor, because the information is within the sole and exclusive control and custody of the police department. So I need that information.

THE COURT: The problem is, you see, at this point I don't know what's in those files, and I don't know what's

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relevant or irrelevant.

MR. JACKSON: I don't believe that you need to make a determination as to whether it's relevant or irrelevant, Your Honor, if Mr. Jamal has a right to have that information as to the complaint that he initiated.

MR. MCGILL: If it's relevant to your case --

MR. JACKSON: There may be things in there that are not relevant to our case at all. Who's going to make that determination? The police department?

THE COURT: That was my question. We don't know what in those files is relevant or irrelevant.

MR. JACKSON: Well, it seems to me that the only way that that could be determined --

THE COURT: Can I request that the files be turned over to me and I'll decide what has to be turned over, I'll issue an order and put my reasons in the order?

MR. JACKSON: Your Honor, I would like to participate along with you in making that determination. If you don't give it to me, you don't give it to me. And Your Honor can make your own ruling with regard to that.

And while you're at that, Your Honor, because there's another issue with regard to the Executive Order -- I'm sorry -- the directive, the police directive, Number 10 -- there's a Police Directive Number 10 that was issued by Commissioner Solomon. There are shooting incident reports that are to be made, every shooting that occurs in the police department. And I am saying that there is a report of every

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shooting by or of an officer. I have not received any information as to that through discovery. I am requesting that Your Honor issue an order directing the police department or the District Attorney's Office to make that information available to me. That information would contain the report -- a shooting report prepared by the Internal Affairs Unit and/or the Homicide Unit.

I would like that information, Your Honor, as well as the recommendations of -- I believe it's called the Firearms Review Board. I would like that information as well, sir.

MR. MCGILL: All right. Well, Your Honor, I think most of what -- under the order and under the discovery rules, most of what Mr. Jackson asks for is not required at all. As a matter of fact, I believe that the interviews -- most of the interviews, most likely, since they are after the fact -- there's a serious question of relevance.

It is our position that he received all of the interviews from police and civilians. From that information, obviously, can be gleaned any kind of alleged bias -- if it exists, Your Honor, on the part of the witnesses who may testify.

THE COURT: I want to see whether I can get the files. And if so, I'll look them over and make a record.

MR. JACKSON: You do appreciate the fact that we are talking about two separate files, one pursuant to the Executive Order --

THE COURT: And the other is the investigation

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of the shooting.

MR. JACKSON: Yes, sir. Pursuant to Directive Number 10, sir.

THE COURT: All right.

MR. JACKSON: May I go on with the omnibus motion?

I also want a copy of all property receipts that were issued in this case. I have not gotten any property receipts at all.

THE COURT: Are they going to be turned over or not? Is there any objection to turning that material over, Mr. McGill?

MR. MCGILL: No, sir. If he doesn't have them -- I don't think the rules require it, but we'll be glad to furnish them.

THE COURT: All right. If you don't get them, let me know. What else do you want turned over to you?

MR. JACKSON: I want a complete copy of the medical examiner's report.

THE COURT: Is that ready yet?

MR. JACKSON: They have given me what purports to be a complete copy of the medical examiner's report.

MR. MCGILL: Whatever we had we gave him.

THE COURT: Why do you think it's not the whole report?

MR. JACKSON: I know it's not the whole report.

THE COURT: How do you know that?

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MR. JACKSON: Well, Your Honor, is Mr. McGill saying that in fact --

THE COURT: He's saying he has given you everything he's got.

MR. JACKSON: I'd like to be certain that he did, because it's important.

THE COURT: I know it's important.

MR. JACKSON: If he says he has given me everything that he has, then my issue -- then I have to go someplace else with my issue. Because it is an issue that's very important.

MR. MCGILL: Everything we have, Your Honor, in reference to the post-mortem report has been given to Mr. Jackson. If Your Honor would like, I would further check with the medical examiner to make sure that the report is complete.

MR. JACKSON: Okay.

THE COURT: If the medical examiner says, "That's my report," and Mr. McGill says, "That's the report we got," what more can you do?

MR. JACKSON: I'll show you what I can do if they come back and they don't give me anything more. And I don't mean to be facetious, Your Honor, but --

THE COURT: No, no, no. If you think there's more --

MR. JACKSON: I know there's more.

THE COURT: -- in the record that has not been

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turned over to you --

MR. JACKSON: I know there's more.

THE COURT: And who has not turned it over to you?

MR. JACKSON: I don't know. That's what I am trying to find out, whether it's Mr. McGill, the police or the medical examiner.

THE COURT: Well, there's nothing I can do, since it is not in front of me. If you can prove that in front of me, then we'll take action.

MR. JACKSON: You mean now?

THE COURT: Anytime you want. You can file a petition later and claim that you were deprived of information.

MR. MCGILL: I'll have another county detective, Mr. Bill Thomas, contact the doctor who conducted the autopsy.

THE COURT: All right. Check it out. If you think there's more and have reason to believe there's more, Mr. Jackson, you have certain remedies you can pursue. Anything else in your omnibus motion?

MR. JACKSON: Copies of any and all lab reports. I don't believe that I have all of the lab reports.

THE COURT: This is something that should have been done before this.

MR. JACKSON: Well, I'm presenting it to you now, Your Honor.

THE COURT: I don't want to take up the valuable time of this vast audience.

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MR. JACKSON: I filed my omnibus motion. I'm entitled to get the information. I didn't get it, so I'm coming back in here.

THE COURT: Is he going to get it or not, Mr. McGill?

MR. JACKSON: There's an FBI report that I didn't get.

MR. MCGILL: I understand that the lab reports were given to Mr. Jackson and he had said, according to what Detective Thomas said, that he felt this was all that he needed. We gave him all that we had. If there's anything else around, we'll be glad to give it to him, Your Honor, in terms of lab reports.

MR. JACKSON: Detective Thomas came to me -- and I am not disparaging Detective Thomas here, but I find that all of the lab reports are not here.

THE COURT: How do you know that?

MR. JACKSON: Based on the information that they did give me, I know, pursuant to a property receipt, Property Receipt Number 854922, that there was an FBI report. And I'm saying that I need to have that.

THE COURT: An FBI report or a lab analysis?

MR. JACKSON: There was a lab analysis conducted, apparently by the FBI. And the FBI or someone else apparently has possession of it. And I would like to have it. And it's in their lab report that the FBI has a report.

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MR. MCGILL: If there is anything that he does not have -- and Mr. Thomas, Detective Thomas, tells me we have given him everything -- if there is anything he does not have, we will be very glad to give him what we believe is a copy, Your Honor, in terms of lab reports.

THE COURT: All right. What else?

MR. JACKSON: Copies of all police -- well, we have done this. I would like a transcript of the radio broadcasts and transmissions of Officer Daniel Faulkner on December 9, 1981.

THE COURT: Immediately preceding this whole incident?

MR. JACKSON: Yes, sir.

THE COURT: Is that available?

DETECTIVE THOMAS: Yes, sir.

MR. JACKSON: And I would like a transcript of any and all radio broadcasts and transmissions of other police officers immediately after this incident, other police officers who responded to the scene.

THE COURT: For how long a period after?

MR. JACKSON: Five minutes.

THE COURT: Is that available?

DETECTIVE THOMAS: Yes, sir, Your Honor, I can give them that.

THE COURT: Those that are relevant, concerning this case.

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MR. JACKSON: Yes. Just this incident.

MR. MCGILL: That will be done.

MR. JACKSON: I would like to have the fingerprint card of Officer Daniel Faulkner and Mr. Jamal. I would also like to have any and all information pertaining to the fingerprint identification, development, comparison, or any of that.

MR. MCGILL: The fingerprint cards, of what possible relevance are the fingerprint cards of the Philadelphia Police Department?

MR. JACKSON: A copy would do.

THE COURT: Do you have some physical evidence where you are going to have fingerprints compared with these?

MR. JACKSON: It would be relevant to the next two issues, and that is: if the police department has developed, identified, compared or in any other way developed fingerprint identifications or fingerprint evidence, I would like to have a copy of that and know the process by which those comparisons or analyses were done. I have received nothing.

THE COURT: Fingerprints of what, the evidence?

MR. JACKSON: Anything at the scene -- the weapons, in particular, of course.

MR. MCGILL: If there is any report in reference to fingerprints, we will certainly provide it to Mr. Jackson.

THE COURT: You will provide any record of any fingerprint comparisons, or anything of that nature?

MR. MCGILL: Yes, sir.

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MR. JACKSON: Could I be told when I will be told if this information exists?

The problem is: "We'll give it to you if it exists."

THE COURT: I am presuming that anything that is promised to you will be given to you today or tomorrow. Let's get this show on the road.

MR. JACKSON: The only reason I would like to know is because Your Honor has issued rulings before and they have not been complied with in a timely manner. That's why I asked the question.

MR. MCGILL: I would object to that, Your Honor.

THE COURT: All right. That's a self-serving statement. What else?

MR. JACKSON: The criminal record of any and every civilian witness.

MR. MCGILL: Your Honor, I don't believe that they would be relevant. Certainly at the time of trial, those individuals we would call as witnesses -- we would provide to the defense -- if there are any -- those criminal records. However, there may be a number of witnesses -- as I pointed out, he was given nearly fifty witnesses -- well, less than fifty civilians -- but I think that's really an invasion of their privacy.

Now, as to those witnesses I would call to testify at trial, Your Honor, I would make that information available

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to him. That will be done at the time of the motion to suppress, so that he will have plenty of time to get whatever he needs.

THE COURT: All right. I think that's fair enough. As to those who are not called, the information is not relevant, certainly.

MR. JACKSON: Fine. I would like all photographs of Mr. Jamal -- all photographs that the police department or the Commonwealth has taken since his arrest.

THE COURT: Photographs of whom?

MR: JACKSON: Mr. Jamal.

THE COURT: Were there photographs taken?

MR. MCGILL: Photographs were taken, and we will be glad to make them available.

MR. JACKSON: Your Honor, pursuant to my original omnibus motion I received what I call, you know, the "boilerplate" response you get from the District Attorney's Office: "Call for an appointment to come in and see the information."

Well, I called. And I'm still waiting for an appointment.

THE COURT: You think the District Attorney's Office is deliberately trying to avoid you?

MR. JACKSON: I don't know.

THE COURT: Mr. McGill, did you refuse to meet with Mr. Jackson? He says he called for an appointment to go over these --

MR. MCGILL: If he called for an appointment to

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go over them, I certainly didn't get that message.

THE COURT: Well, I do not believe -- and I am stating this for the record -- that anybody in the District Attorney's Office would dare try to avoid your phone calls.

MR. JACKSON: And I am not suggesting that.

THE COURT: I know. You are speaking for the public -- your public.

MR. JACKSON: Your Honor, you are saying I am speaking for the public. It's a fact. What am I supposed to do? The letter says: "Call the District Attorney's Office."

I called, Your Honor, and I can't get in. You say I'm speaking for the public. I'm telling you what happened, Your Honor.

THE COURT: From here on in, you document every phone call and letter and let's see whether they are in compliance with the court order on discovery.

MR. JACKSON: How would you want me to document a phone call?

THE COURT: Come to my chambers, make the call from my chambers. My secretary will be right there. All right?

MR. JACKSON: Yes, sir.

THE COURT: Will that be good enough for you? We'll find out if they are avoiding your phone calls.

MR. MCGILL: Is Mr. Jackson saying that as a matter of course I have not returned his phone calls, or only recently?

MR. JACKSON: Just recently.

THE COURT: Make the phone Calls from my chambers.

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We'll find out if anybody is avoiding your calls.

MR. JACKSON: Your Honor, you are saying I'm speaking to my public. And I want to find out from Mr. McGill why, if I get a phone call to come in and see the information -- I want to know why I can't go in and see the information. I'm not playing games. I'm serious.

MR. MCGILL: We have one photograph of Mr. Jamal, and I believe it was taken at the hospital, when he was being taken care of.

THE COURT: Will that be available? Yes or no.

MR. MCGILL: Sure.

THE COURT: Anything else?

MR. JACKSON: Would you also tell Mr. MCGILL now that I can come over to see all the other information that he says that he wil1 make available to me, Your Honor. Again, Your Honor --

THE COURT: I'm not going to make any specific comment in that regard. I want to know if anybody is refusing to show you what they promised to show you. And you can document that.

MR. JACKSON: When am I supposed to do that? How long am I supposed to wait on this, Your Honor?

THE COURT: All depends on what time you get out of here. If you get out of here by the end of the day, I'm sure you can make arrangements today.

MR. MCGILL: If the Court pleases, Your Honor knows that I am on trial.

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THE COURT: You were due back five minutes ago.

MR. MCGILL: I'm not sure that I will have an opportunity either today, tomorrow or Monday to meet with Mr. Jackson.

MR. JACKSON: Again, when I called, that's the information they gave me: "Mr. McGill is busy."

THE COURT: I happen to know he is on trial.

MR. JACKSON: I know it too, Your Honor. And I am not disparaging Mr. McGill. I'm simply saying I want to see the information, I call and they say he's busy. So how am I going to see it?

MR. MCGILL: I'11 be glad to see Mr. Jackson sometime next week -- preferably at the end of the week -- to go over what we have.

MR. JACKSON: Your Honor, couldn't someone else in his office do it? I understand Mr. McGill is busy. I'm simply saying that if I'm supposed to prepare for this case, it seems to me that if the information is going to be made available to me, then it should be made available.

THE COURT: I'm not going to take a case out of a trial assistant's hands.

MR. JACKSON: Fine, sir.

THE COURT: If you have any problems, let me know. I don't think there will be any problems. What else?

MR. JACKSON: May I have the addresses of all of the eyewitnesses and informative witnesses?

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MR. MCGILL: I would object to that.

THE COURT: The policy of this Court is not to turn over addresses of witnesses except in certain situations.

MR. JACKSON: I am suggesting that this should be a "certain situation," Your Honor.

THE COURT: Why do you need the addresses?

MR. MCGILL: I object to this.

MR. JACKSON: Because I want to interview the witnesses -- or, at least, if I don't interview them I want an investigator of my own choosing to interview them, Your Honor, to try to determine what happened.

Very briefly, it goes to the very issue that we spoke of earlier, where a witness says this, that and the other when Mr. McGill says he's going to say something else.

I would like to have some kind of information as to what these witnesses saw and what they will say. And at this point I have to rely on the police department and the district attorney to give me information about these witnesses.

And I think I have a right to know who they are and where they live so that I can conduct an investigation and interview, that's all.

I would assure this Court that I will keep the information between me and my investigator, and that's all. I am an officer of this Court, Your Honor, and I don't intend to intimidate or in any other way harass any of the witnesses.

THE COURT: As a practical matter -- and I have announced this as my policy in the past, in other cases -- if

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there is a confrontation between the Constitutional right of a witness not to be harassed or bothered and the right of a defendant to interview anybody he wants at any time, I will always lean in favor of the witness. I think the Constitution applies to other people besides defendants.

Now, if you want to indicate which witnesses you think you want to interview and work out something with the District Attorney's Office where you can perhaps interview them when they are made available to you, I think you can work that out.

MR. JACKSON: Must my defense depend upon the Commonwealth making witnesses available?

THE COURT: I'm not suggesting that.

MR. JACKSON: I ask Your Honor's advice in this matter. As a practical matter --

THE COURT: You don't have to go out and see everybody who has had anything at all to say about this incident, you know.

MR. JACKSON: I understand that. And I don't plan to do that.

THE COURT: Pick out those witnesses whom you think you want to interview.

MR. JACKSON: I know who they are: every witness they plan to call. It's just that simple: every witness they plan to call I want to interview.

THE COURT: Well, Mr. McGill?

MR. MCGILL: First of all, if Your Honor pleases,

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my position would be that I would object to witnesses' addresses being given to anyone.

Secondly, Your Honor is quite right in terms of the rights of witnesses at times. And also, they have a right not to speak to people. I have witnesses who don't want to talk to me anymore about the case. They'll say, "I simply am not going to talk to you."

MR. JACKSON: That's true. And I --

MR. MCGILL: And if they don't wish -- and several of those witnesses that Mr. Jackson has indicated may be called by the Commonwealth have told me that they wish to talk to no one anymore about the case. They don't want to talk to defense counsel or newspaper people or anybody. They don't want to be bothered. They are very upset. And I think, Your Honor, that this is another example of what you are talking about: harassment of witnesses.

MR. JACKSON: Harassment of witnesses? I'm sorry, I thought you were --

THE COURT: Mr. Jackson, come on. You have been around, as I have. We have had witnesses in cases shot and killed.

MR. JACKSON: Are you suggesting that I am going to shoot and kill somebody? Your Honor, I resent that.

THE COURT: I resent your attitude. We have had witnesses shot and killed. And I am not suggesting that anybody in this case would ever do anything to hurt a witness. I'm telling you why I have had a policy of not disclosing the

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addresses of witnesses.

MR. JACKSON: I understand that.

THE COURT: If you don't like that policy, you have your redress before the appellate courts.

MR. JACKSON: I am not arguing the policy. I am saying I just want to interview the witnesses. That's all I am saying, Your Honor. I don't need any addresses. They can make them available in court, in my office, someplace else. That's all I am saying, Your Honor.

THE COURT: Mr. McGill will work out a system with you where he will try to get those witnesses to come in and talk to you or an investigator. If they don't want to talk to anybody, that's the end of the line.

MR. JACKSON: But you appreciate the problem we have: a county detective or police officer or district attorney goes to a witness and says, "Well, you know, they are representing Mr. Jamal."

THE COURT: I understand.

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MR. JACKSON: "They want to talk to you. Do you want to talk to them?"

"No."

That's what I am afraid of. I would like to go to the witness and say, "Would you talk to me?

What do you think they are going to say after they go and get them?

"No, I don't want to talk to him."

THE COURT: You get together with Mr. McGill and see if you can work out something whereby you can talk to those witnesses who can be brought in. But we're not going to publish in the newspapers the addresses of these witnesses.

MR. JACKSON: I don't want that, Your Honor.

THE COURT: And that's my ruling. I'm not going to retreat from that ruling no matter what you say. So --

MR. JACKSON: Your Honor, I'm not asking you to change that policy. I'm simply saying I just want them to make the witnesses available to me.

THE COURT: Mr. McGill, will you try to work out a system where Mr. Jackson can talk to these witnesses and, if they are willing to talk to him, perhaps bring them in at a certain time when he and his investigator can sit down and talk?

MR. MCGILL: I will proceed accordingly, Your Honor.

MR. JACKSON: And you are suggesting that Mr. McGill will tell me whether or not they are willing to talk

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to me?

MR. MCGILL: Didn't you hear the judge?

MR. JACKSON: I don't know if I heard him say that.

THE COURT: First let's find out who doesn't want to talk to anybody. If you think there's something wrong with that procedure, I'll look into it further. I'm just not going to have people going out and contacting witnesses and have them say, "I don't want to talk to you."

MR. JACKSON: I would then have to accept the representation of counsel, again, that they don't want to talk to me. And I am simply saying, your Honor, as an officer of this court, that I object to the unequal position of Mr. McGill. I think that I should have equal rights.

THE COURT: I am not favoring anybody. First let's see who says that. There may not be anybody who is going to take that position. So it's worthless to argue it.

MR. JACKSON: I'11 tell you in advance, if those guys go out, if they contact them --

MR. MCGILL: I object to that. Your Honor has made a ruling.

MR. JACKSON: I'll tell you who's going to say it.

THE COURT: Who's going to say it?

MR. JACKSON: Cynthia White is, and Chobert and Magilton.

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THE COURT: Why do you think they're going to say it? Do you think they're going to say it because they have been told to say it?

MR. JACKSON: Yes, sir.

THE COURT: By whom?

MR. JACKSON: I don't know, Your Honor.

THE COURT: Now you're getting very close to accusing someone of impropriety.

MR. JACKSON: Yes, sir, I understand I am.

THE COURT: And you think somebody from the District Attorney's Office is telling these witnesses not to talk to you?

MR. JACKSON: I don't know, Your Honor. You have asked me and I have said I don't know. I said "someone." I don't know whether it's someone in the District Attorney's Office or --

THE COURT: Then you know of your own personal knowledge that someone has contacted those witnesses and said, "Don't talk to Mr. Jackson"?

MR. JACKSON: I don't know personally.

THE COURT: Then this is all speculative on your part?

MR. JACKSON: Not totally, Your Honor.

THE COURT: In what way isn't it totally?

MR. JACKSON: I have reason to believe that these witnesses -- or at least some of these witnesses -- have been told not to talk to the defense.

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THE COURT: Okay. What's your reason?

MR. JACKSON: Based on some privileged investigation that has been provided to me, Your Honor.

THE COURT: Specifically what?

MR. JACKSON: I am not in a position to disclose that, Your Honor.

THE COURT: What's the big secret? You're asking the District Attorney's Office to reveal everything but the kitchen sink. What's the reason for not divulging that information?

MR. JACKSON: I think the rights and duties of the Commonwealth, as opposed to the defendant, are different. Whether we agree or not, we are different.

THE COURT: What reason do you have to believe that someone in the District Attorney's Office told a witness not to say anything to you?

MR. JACKSON: I never said anyone in the District Attorney's Office has done that.

THE COURT: If you are going to give the impression that somebody in this case is conspiring to keep information from you, let's get it out in the open. If not, you're going to have to back off. Because there is no conspiracy that I can see here.

MR. JACKSON: I cannot go into that right now, Your Honor.

THE COURT: I spent hours listening to arguments in this matter, trying to give you everything you can possibly

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get.

MR. JACKSON: There are innuendoes to suggest that I am overburdening the Court with my requests. And for some reason --

THE COURT: Who said that?

MR. JACKSON: You are saying you are spending hours with me, like I'd better back off with my requests.

THE COURT: I said I have spent a lot of time listening to arguments here to make sure that there is no avenue that has been closed off to you.

MR. JACKSON: Yes, sir.

THE COURT: There are certain limits, though.

MR. JACKSON: Yes, sir. And I believe -- and correct me if I am wrong -- I believe you indicated that I am suggesting that there is a conspiracy and you don't believe that it's based on anything at all.

THE COURT: You are suggesting that there is a conspiracy here?

MR. JACKSON: I don't know. I am simply saying --

THE COURT: I want to hear your statement. Is there -- are you telling me that there is some conspiracy here to keep information from you in this case?

MR. JACKSON: I don't know, Your Honor. All I'm saying --

THE COURT: Then your statement was ill-advised, wasn't it?

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MR. JACKSON: No, sir, Your Honor.

THE COURT: Tell me what the basis for your statement is.

MR. JACKSON: Your Honor, I am simply saying that there is certain information that's not being supplied to me. And I don't know who's keeping it from me. So I can't say it's the District Attorney's Office or the police department or Joe Blow. I don't know.

THE COURT: What information is not being given to you?

MR. JACKSON: I'm referring to the medical examiner's report, the information that I requested, the lab reports -- and I am being told that I'm going to get all of that information, that there's nothing going to be withheld from us from the medical records, the lab reports, FBI reports, fingerprint cards, photographs and everything else.

THE COURT: You're going to get all of that. There's nothing going to be withheld from you.

MR. JACKSON: Your Honor, all I'm simply saying is I filed that motion before, and now I'm being told --

THE COURT: Can we agree that your statement that there is some nebulous conspiracy to keep you from getting this information was totally an ill-advised statement?

MR. JACKSON: I never said, Your Honor --

THE COURT: All right. Fair enough. You never said it. Okay. Anything else? What about increase in fees? I told you to get

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itemized statements.

MR. JACKSON: Yes, sir.

THE COURT: You're probably going to have to take that up with Court Administration, because we do have a limit on how much we will allow preliminarily. However, I will leave the door open as to that. On the questionnaire, you're going to show me what has been done in other jurisdictions.

MR. JACKSON: Yes, sir.

THE COURT: I'11 tell you frankly that I'm not inclined to open the door to all kinds of questionnaires being sent out to prospective veniremen. However, I am willing to look at what has been done in other jurisdictions, and if you can show me some good reason for it and present some cogent argument, I will consider it.

MR. JACKSON: Thank you very much, Your Honor.

THE COURT: Is there anything else?

MR. JACKSON: I think that concludes my business with the Court.

MR. MCGILL: May I have one statement, Your Honor, in reference to everything that has been said here? I would like to say that even though we have provided counsel, on March 1st, the discovery material that's included in this letter here, which lists 49 statements plus a number of other items which are necessary under the rules, also, the possessions of the defendant, as well as the location of those things we retained -- that being done in January, Your

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Honor, I would state that to date we have received nothing from the defendant -- no statements, laboratory reports, notice of alibi defense, notice of insanity, any kind of medical examination records or physical records.

Also, any listing of names and addresses of eyewitnesses whom the defense intends to call in the case in chief -- under Rule 305--that has not been supplied to us.

So I am assuming, then, that there are none at this point. And, of course, we would then petition that any witnesses who would be called be excluded from testifying, because although great effort has been made by Detective Thomas and the police department and the District Attorney's Office in giving Mr. Jackson this material, the volumes of material that he has received, we have received, to date, nothing.

MR. JACKSON: Nothing to give them.

THE COURT: He says he has nothing along those lines to give you.

MR. MCGILL: Then I will make the appropriate motion at trial, Your Honor, if he intends to present witnesses.

THE COURT: If he tries to. If you say there's nothing now, you may be barred from using it.

MR. JACKSON: I have nothing now, Your Honor.

THE COURT: All right. The matters I have taken under advisement will be taken care of within the next week. What's your run date here?

TRIAL ADMINISTRATOR: Six-seven.

THE COURT: Suppose we set this down for two weeks.

I hereby certify that the proceedings and evidence are contained fully and accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.

Official Stenographer

The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.

Judge