MR. McGILL: Judge, maybe I can run it down and Mr.
Jackson can include or tell me where I'm wrong here. First of all, Judge
McDermott heard --
THE COURT: Justice.
MR. McGILL: I'm sorry. Justice McDermott heard the
petition in Room 456 at an open hearing where the press and public were
permitted to attend and did attend. All the petitions were denied. Stated
in words, in a few words, the petition to stay this Court in ordering Mr.
Jackson to be primary counsel and to represent the defendant was denied;
the petition to stay the Court's order preventing John Africa from sitting
at counsel table was denied; and also a petition for the appearance at
counsel table of John Africa as counsel for him as his choice was denied.
The Court did not say anything about the mistrial request, I
2.03
believe, because I don't think that was appropriate. I
think that the petitions went merely to overturning this Court's orders.
So in effect the Court has said that Mr. Jackson must represent this
defendant whether the defendant likes it or not because Mr. Jackson serves
as an appointed lawyer from the Court and not appointed from the
defendant. Also that Mr. John Africa cannot appear at the table in
conjunction with the Court's order in the course exercised of maintaining
what the Court believes to be an orderly administration of the
proceedings. And although there was considerable argument as to whether or
not John Africa could be counsel -- I just said that -- that there was
considerable, not considerable, but there was a clear statement by Justice
McDermott that no one can represent a defendant who is not an attorney of
the law. That's about it, isn't it?
MR. JACKSON: Yes. I just want, just as far as I'm
concerned, clarification. Within the petition and as well oral
argument
2.04
I never requested that John Africa act as counsel, but to
assist Mr. Jamal and that also was specifically denied as well. I just
wanted to clarify that I at no time requested that John Africa act as
counsel.
THE COURT: No, you didn't but I think --
MR. JACKSON: He did in the beginning, yes. There's no
question about that.
MR. McGILL: All that morning, I think, all the morning
--
THE COURT: He said he had no faith in any attorney no
matter who I appointed. Even if it was F. Lee Bailey he would have no
confidence in him.
MR. JACKSON: No question about that.
THE COURT: The only one he has confidence in is John
Africa because he, the way he thinks and feels, that's the man he wants.
That's all.
MR. JACKSON: But, again, I think what he was saying
yesterday and certainly from my conversations with him is that he wants
to
2.05
represent himself and he simply wanted John Africa to
assist him in representing himself. He didn't want to have John Africa
substitute as counsel particularly since he is aware of the prohibition of
a non-lawyer acting as backup counsel.
MR. McGILL: Right.
MR. JACKSON: I think other than that Mr. McGill's summary
of what transpired before Justice McDermott is correct. I would add, Your
Honor, that I specifically requested guidance for my participation in the
trial and from my recollection, at least of the brief guidelines that
Justice McDermott provided, was that I should represent him to the best of
my ability. My ability to represent him will be directly contingent upon
the interest that Mr. Jamal wants protected. I did not get an opportunity
to fully explore this issue with Justice McDermott, but for Your Honor's
consideration I know that Mr. Jamal has indicated on the record yesterday
and again has indicated to me today that he doesn't want me to
participate.
2.06
Now, there is no question in my mind pursuant to Justice
McDermott's order as well as Your Honor's order I will be here. With
respect to what I would do I'm still in the dilemma in that I don't
believe that the Court would attempt to intrude upon the strategy and
theory of the defense, particularly if, indeed, Mr. Jamal is saying, as he
has to me, that indeed it is his strategy for me not to participate. For
that reason I would want that on the record; that Mr. Jamal is telling me
not to participate, to be silent. Because I think, in effect, what he is
saying is that it's his strategy, and I don't think that I have the right
to change his strategy if that's -- and I don't think the Court has the
right to intrude upon his strategy of defense -- if that's a knowing and
intelligent waiver that he's making.
MR. McGILL: In response, Your Honor, something new
happens everyday, doesn't it?
THE COURT: What's that?
MR. McGILL: This
2.07
MR. JACKSON: He said yesterday --
MR. McGILL: I know.
MR. JACKSON: He said yesterday --
MR. McGILL: That was the issue of whether or not you had
to perform as his representative and counsel. As representing him and as
counsel, of course. And he says, "I don't want you to represent me and I
also don't want you to participate.", and then we went up to the Supreme
Court to make that determination. It is my understanding that Justice
McDermott was clear in that Mr. Jackson must as an official who is
appointed by the Court represent the defendant to the defendant's best
interest; that Mr. Jackson must represent the defendant in the way that
Mr. Jackson feels is best for his client.
Mr. Jackson pointed out to Justice McDermott that he, Mr.
Jackson, felt that if he does not confide, meaning the defendant, confide
in him or tell him things, or point out different witnesses, that he would
not be as effective as he otherwise would. And he
2.08
questioned that and stated, "That this is another reason
why I feel that my representation would not be complete or completely to
the best interest of the defendant because of his unwillingness to tell me
things".
Well, Justice McDermott was very clear on that. Justice
McDermott said, "If the defendant does not want to tell you anything and
does not want to take the benefit of you knowing even more about the case
then you already do, then that is the defendant's decision. You must
represent the defendant as best as you can and not necessarily in the way
that he wishes you or fails to -- or wishes you or in a way that he feels
that you should not. If he doesn't want to take your advice, fine, but you
are to give advice and you are to represent him." I think that was very
clear.
Now, I will point out also, Judge, that with the MOVE
case we have some precedent although it's not technically a decision
that's printed up. Nonetheless, like this decision the Court in the MOVE
trial was very clear in
2.09
stating that, "You are not, as officers of this Court,
you are not supposed to just stand around and not examine and not
cross-examine and let the Commonwealth present its case and let this
defendant be convicted, or otherwise without making any effort at all." It
literally directed -- with a minimum of words because it found it
outrageous that even the thought would be that there would be nothing
done. Even if it were his strategy to be completely silent it was my
understanding of that decision that you are to act, you are just not to
sit down there and do nothing and effectively subvert or circumvent the
Court's ruling; that you, in fact, do represent the defendant. See what I
mean? I don't think Judge McDermott at any time -- now, this was not
brought up orally to him and, in a sense, it's somewhat unfair to bring it
up now without having specifically brought it up in front of him.
He could say, "If the petitioner wants me to do nothing
and that's his strategy what do I do, Judge?" That was not asked. It
2.10
was clear that Justice McDermott said, "You are to
represent your client as best you know how with all your competence and
all your ability. If he doesn't want to accept the advice, fine. It
doesn't mean that you just sit there."
THE COURT: Let me say what I feel.
MR. JACKSON: Sure, Judge.
THE COURT: My position is that if he takes the position,
"All right, I've been removed now by the Court and Mr. Jackson's going to
represent me and I'm telling Mr. Jackson I don't want him to do anything,
I don't want him to ask any questions or anything at all.", what he's
doing is in effect disrupting the whole proceedings because he could stop
us that way --
MR. JACKSON: Well --
THE COURT: -- and literally this is something that can't
happen.
MR. McGILL: He's also effectively re-representing
himself.
2.11
THE COURT: Right. Because we would never then be able to
try him.
MR. JACKSON: Well, Judge --
THE COURT: See what I'm talking about?
MR. JACKSON: I understand full well and that's why --
Judge, I'm saying that if, assuming that there could be some colloquy to
insure you that he knows what he's doing -- and I don't think there's any
question that he doesn't know what he's doing --
THE COURT: I will when I get out there.
MR. JACKSON: I'm saying I don't know that, Judge, if,
number one, if he tells me not to do anything, I ask a wrong question,
give some bad advice, then that's ineffectiveness, of course. But, number
two, what questions do I then ask?
THE COURT: Well, as a lawyer you know what questions to
ask.
MR. JACKSON: Judge, I understand --
THE COURT: You know that. You've
2.12
been practicing law. Let me say this --
MR. JACKSON: And I don't have any --
THE C0URT: Let me say this: Let's say you didn't have
Jamal out there and you had someone else --
MR. JACKSON: Sure --
THE COURT: -- who said, "Jackson, represent me to the
best of your ability." You wouldn't go to that person and say, "What
questions should I ask?"
MR. JACKSON: Judge --
THE COURT: You would ask the questions; you would know
what questions to ask.
MR. JACKSON: No question about it, but Judge, this is the
problem that I have: The Justice told me to represent Mr. Jamal's interest
to the best that I could. So in his interest, if he believes it's in his
interest for me to be silent, Judge, I don't mean, really mean this
philosophically --
THE COURT: Let me answer this right here.
MR. JACKSON: Sure.
2.13
THE COURT: Sure it's in his best interest that you don't
say anything, because then you can't try him.
MR.JACKSON: You can't?
THE COURT: No.
MR.JACKSON: Why not?
THE COURT: No.
MR.JACKSON: Why not?
THE COURT: Because you must make an honest effort.
MR.McGILL: Talk to him while I check with the law on
this. I have no objection.
MR. JACKSON: No, because I talked to Justice McDermott's
clerk. I brought up this issue and they felt as well that I'm supposed to
do what he says.
MR. McGILL: That's wrong.
THE COURT: That's wrong.
MR. JACKSON: You don't think what --
MR. McGILL: You don't know what he says -- you do what's
best for him or else you
2.14
go back to the same thing you did before and that's when
he's representing himself and he's not doing anything.
THE COURT: Yes.
MR. JACKSON: But Judge --
THE COURT: Let me answer this. It's just as though he
were still the attorney, because then being the attorney he would sit back
-- just as he refused to plead in this case -- he would sit back and say
nothing.
MR. JACKSON: Right.
THE COURT: And all we would do would be hearing what came
from the Commonwealth's witnesses.
MR. JACKSON: Right.
THE COURT: And then that would give him the basis later
on of arguing that he did not get a fair trial.
MR. JACKSON: Not if he's already said --
THE COURT: No.
MR. JACKSON: -- if he knowingly -- Judge, I really don't
think that he can.
2.15
THE COURT: Here's what's going to happen --
MR. JACKSON: Judge, in Perspective --
THE COURT: I know what's going to happen. I know his
strategy. I know what he's going to do. You're going to start asking
questions and he'll stand up and rant and rave, and I'll ultimately have
to hold him in contempt of court, and I will have to remove him from the
courtroom. That's what he wants me to do.
MR. JACKSON: Well --
THE COURT: I know it, because he's going to say, "I told
you not to ask any questions, to say nothing". And that's not being
fair.
MR. JACKSON: I know it's not fair. The position I'm being
placed in, Judge --
THE COURT: I know.
MR. JACKSON: -- I have to go against his wishes.
THE COURT: You have to?
MR. JACKSON: And going against his rights --
2.16
THE COURT: No, not against his rights, but going to your
responsibility to this Court, not this Court technically but to the entire
administration of justice.
MR. JACKSON: But Justice McDermott said if Mr. Jamal
chooses not to use your services and they can be provided, that's on him.
I take that to mean that if he chooses to make a knowing and intelligent
waiver of me to represent him then he can't obstruct this Court and stop
the proceeding because, Judge, if we get into saying, "Well look, he can't
tell you not to ask questions, you've got to ask questions and, you know,
use your best sense of doing it.", then what I'm doing, then what the
Court is doing, in effect is intruding into the area of his strategy, and
Your Honor well knows the Court always stays away from the strategy and
theory of defense.
THE COURT: Wait a minute. What strategy could that be?
What kind of strategy is that?
MR. JACKSON: I don't know. I don't
2.17
know what his strategy --
THE COURT: What kind of strategy is that to sit back
there and refuse to answer anything? What kind of strategy is that
really?
MR. JACKSON: Judge, I wish I could answer you --
THE COURT: Well, this is what I'm trying to say.
MR. JACKSON: -- but that's what he's telling me,
Judge.
THE COURT: I know he's telling you that.
MR. JACKSON: And once he --
THE COURT: I know. Because he's trying to disrupt the
entire procedure.
MR. JACKSON: Judge, I'm not going to debate that with
you, but if he tells me specifically, "My strategy is for you to remain
silent.", clearly, unequivocally that's his strategy.
THE COURT: Well, what you may have to do, if that's going
to be his strategy, and every witness testifies, you may have to
confer
2. 18
with him and then you may have to put on the record that
you have conferred with Mr. Jamal --
MR. JACKSON: Fine.
THE COURT: -- and he has instructed me not to ask any
questions.
MR. JACKSON: Fine.
THE COURT: Maybe that's the way. I don't know.
MR. JACKSON: Judge, I think --
THE COURT: I really don't know. I think it's bad.
MR. JACKSON: I do, too, Judge. But I think the Court is
doing all it can do and in that way he can't come back and say, "I had
ineffective representation.", when it's clear that's what he wants.
THE COURT: The Court's have already said you can't come
back later on after telling somebody to do something and they do it and
then say it was bad.
MR. JACKSON: I think the Court is acting proper in the
suggestion you've made. I'm really concerned that once I say I have to
2. 19
ask questions, the question is am I asking too many, too
little, what questions are right, what questions are wrong. Really --
THE COURT: I don't think you have to worry about that.
The Court's have said -- let's assume it wasn't Jamal you were
representing but somebody else. He wouldn't tell you how many questions to
ask --
MR. JACKSON: Oh, no.
THE COURT: Or, are you asking too many, or too little.
That would be strictly up to you as the attorney.
MR. JACKSON: Sure.
THE COURT: And you could justify the number of questions
that you're asking.
MR. JACKSON: Sure.
THE COURT: "I am being a practicing attorney" --
MR. JACKSON: But --
THE COURT: If you're saying that he's got some kind of
hidden strategy -- and I can't imagine what it is that you're not even to
ask one question --
2.20
MR. JACKSON: Well, he says it's in his best interest and
that's the interest I'm supposed to serve this Court and serve in the
interest of the defendant.
THE COURT: What he's going to say is he's arguing that
because we didn't allow John Africa to represent him, therefore, he
doesn't ask any questions and, therefore, the whole proceeding is improper
and unconstitutional and everything else. This is what worries me.
MR. JACKSON: Judge, I understand your worry.
THE COURT: And this is really frustrating the
administration of justice, and I think it's wrong.
MR. JACKSON: Judge, I think, again, after each --
THE COURT: Suppose he does some thing that I have to
eject him from the court room, because I'm not going to bind him.
MR. JACKSON: Oh, sure.
THE COURT: I would rather eject him from the
courtroom.
2.21
MR. JACKSON: Sure.
THE COURT: I think that's the lesser of two evils. Then
you're by yourself and then you have to make a decision.
MR. JACKSON: Yes, sir.
THE COURT: Are you going to say, "Excuse me while I go up
to the cell room and confer with him.", and come back and say, "He told me
not to ask any questions?"
MR. JACKSON: Judge, I think, again, it serves the
interest of the Court as well as Mr. Jamal if Mr. Jamal were to tell me if
-- let's assume for the moment he was removed from the courtroom --
THE COURT: What do you mean assume? He's been removed.
You mean from the courtroom?
MR. JACKSON: Yes, from the court room. Mr. Jamal advises
me not to ask any questions because it's in his best interest not to do
that, and let's assume he's going to be convicted and goes up to the
supreme Court, or whatever. The question is, number one, did the Court --
well, did he knowingly waive his
2. 22
right, and I don't think it could be any question about
it and, number two, did I have any right to violate what he considered to
be his best interests and number three, can the Court on its own -- and I
believe it's intruding into the area of the defense.
THE COURT: We'll see, the only answer I could give you to
that is Judge Malmed tried the MOVE case --
MR. JACKSON: Yes, sir.
THE COURT: -- in which they had the same problem in which
the nine -- I think it was nine defendants --
MR. JACKSON: Yes.
THE COURT: -- did not want the attorneys to ask any
questions or do anything. The Court, as I understood it, had directed
these attorneys that they must take over and they must ask questions and
do the best that they can to the best of their ability. And somewhere
during the course of the trial these nine defendants were removed.
MR. JACKSON: Were removed, yes.
2. 23
THE COURT: And these attorneys did do that. They did
cross-examine and they did everything to the best of their abilities.
MR. JACKSON: Of course the defendants were removed early
several times.
THE COURT: Now, I admit that that case has not been ruled
on formally and finally as yet, but I think it's at least a guideline that
you should follow, that we should follow, that this is what the Supreme
Court has told these nine lawyers.
MR. JACKSON: And Judge, what I tried to do was very
clearly ask the Justice for guidelines and --
THE COURT: Excuse me just a moment.
MR. JACKSON: Sure. What I tried to focus on in Justice
McDermott's findings today was where he talked about the interest of Mr.
Jamal. And I appreciate Your Honor's concern about the orderly process of
the case and I'm concerned about that, too, Judge. Believe me, I'm not
trying to obstruct anything at all. But my concern is that if he's
says,
2. 24
"My interest is for you to be silent," how can the Court
unilaterally say that it is not in your best interest to be silent? I
don't think the Court can do that, can be that presumptuous to say that.
Whatever his best interests are, if he chooses that his best interests are
for him to be convicted, can the Court say that is not in your best
interest? That's my point, Judge.
THE COURT: You probably didn't hear part of this, but the
point that he brought out -- I drew an analogy to that case that Judge
Malmed had, you know, the nine defendants where they also didn't want the
attorneys to do anything and yet the Supreme Court, as I understood, told
them that they were to ask questions and follow through to the best of
their abilities regardless of what the defendants had said. Now is that
true? Is that what they said?
MR. McGILL: Yes. Well, I'm looking now at the -- I have
notes of testimony of a hearing before Judge Malmed after the Supreme
2.25
Court convened to hear a petition. I also have a brief
that we wrote with some citations to it. On Page 21.14 -- that's the Move
case that you're referring to before Judge Malmed? I'm looking for the
date. It should be important for the record. Well, the nine-defendant MOVE
case, anyway, it doesn't have a date on here for some reason. It's 1978
September Bills Number 101 through 1552. There were six Justices that were
present. It first states that the writ of prohibition was withdrawn by
defense counsel because he indicated the defendants had been properly
removed from the room. That's an issue that we don't have here. Then on it
says, Mr. Knaur talking,which is the prosecutor speaking to the Judge, he
says, "The second issue was the status of backup counsel and whether or
not they would participate in spite of the orders of the defendants that
they not participate. The Court I would say unanimously indicated that
they should participate as lawyers and question; that they are officers of
the court and not subject to the
2.26
defendants when the defendants are out of the room; that
the lawyers are officers of the court and should act as such and to make
sure that there was a fair and full hearing of the issues; that they were
to cross-examine and act as attorneys throughout." And Mr. Franzel who was
one of the defense counsel of one of the MOVE members said, "I would agree
with that, sir." And then he goes on to say, "Except insofar as I don't
know if they're going to issue an opinion to that effect, however, orally
they all unanimously, I would say, communicated that thought to us. And I
think that we went to the Supreme Court for guidance and I would suggest
that we have received that guidance and we are prepared to continue with
the trial." And they continued with the trial. Let's see.
MR. JACKSON: Well --
MR. McGILL: Go ahead.
MR. JACKSON: -- I was only going to say that what you
read is my understanding of what the Court decided in that case, and it
was my further understanding that in the situation
2.27
with MOVE there was not the consultation with MOVE
members that I had with Mr. Jamal. Obviously Mr. Jamal and I consulted
with each other. In this instance, in this particular instance, Mr. Jamal
and I conferred often, and he is saying in effect what his strategy is,
what his best interests are. In this situation the Court said without any
further guidance from the defendants themselves you go and do that. And I
think that's the distinction where the Court was, I believe, acting
properly in the absence of something to the contrary from the defendants
themselves. I think the Court was acting properly in that case, but in
this instance where the defendant is specifically asking that I not ask
questions, where I be silent, again, as Your Honor suggested -- you were
not in Mr. McGill -- that one of the possible ways of doing it is after
your examination I would then consult with Mr. Jamal and based an his
consultation and his advice and direction to me that I have no questions.
It is his choice because I think for us to get into violating
2.28
what he chooses, what he asserts as his right and his
interests, I think is going to put the Court in a real tenuous position,
because you're then saying that the Court can almost develop the strategy
for the defense. I think that's the clear indication.
MR. McGILL: I see --
THE COURT: No --
MR. McGILL: I see his point.
THE COURT: No question. So do I. I'm not exactly saying
that. But I think his strategy is,"Because you have not allowed me to
consult with John Africa --".
MR. McGILL: Right.
THE COURT: -- I do not want to participate. That's not a
good enough reason for not participating.
MR. JACKSON: I know.
THE COURT: That's what I'm worried about.
MR. McGILL: I agree with that, Judge. But the issue I
think is really narrow and I think he has phrased, Mr. Jackson has
2.29
phrased, it in a narrow fashion.
THE COURT: I know and I agree.
MR. McGILL: The specific, if I can understand it --
THE COURT: But --
MR. McGILL: If I can, Judge? The specific issue is where
the defendant intelligently makes the decision --
THE COURT: That's the thing.
MR. McGILL: -- that it is in his best interest to say
nothing --
MR. JACKSON: That's right.
MR. McGILL: -- that in his strategy to say nothing, and
for that reason, perhaps to make a statement by saying nothing and win the
sympathy of the jury that it would be in his best interest to get a
verdict which he would want, which would be an acquittal.
THE COURT: Well --
MR. McGILL: Is that what you said?
MR. JACKSON: That's it.
THE COURT: I agree with that a 100 percent but what
worries me is that he is
2.30
adopting this so called strategy solely because I have
refused to allow John Africa to represent him.
MR. McGILL: No.
THE COURT: Wait a while. Let me finish.
MR. McGILL: I'm sorry, sir.
THE COURT: If John Africa had represented him there would
be cross-examination and that's what worries me.
MR. JACKSON: But --
THE COURT: If somebody's making a decision intelligently
not to ask any questions, that's one thing. But if he's doing it simply
out of spite because I've not allowed him to have John Africa, that's a
different thing.
MR. McGILL: Apparently. Could you add --
MR. JACKSON: Yes. I'm going to just give an analogy,
Judge. I think what you're saying may be correct in terms of what course
of strategy. But Judge, my strategy is going to be different in every
case. I don't
2. 31
care what case it is. Depending on the rulings of Court
the strategy changes. If you ruled that John Africa can't represent him
he's adopted another strategy. My point is I don't think there is any
defense. If that's the strategy he adopts --
MR. McGILL: Yes.
MR. JACKSON: Because he doesn't agree with Your Honor so
what. In the beginning in this case or in any other case the strategy
would be different depending on the Court's rulings. You adopt the
strategy, as all lawyers do, depending on the rulings of the Court. In
this one you ruled John Africa can't be here. So he's adopted this
strategy. I don't think the reason for adopting the strategy is really
relevant to the issue. Again, if he is intelligently and knowingly saying,
"It is my strategy and it is in my best interest that Jackson be silent.",
I think that that is when the Court must of necessity refrain from
requiring anything more.
MR. McGILL: Are you not saying,
2. 32
Mr. Jackson -- I'm trying to phrase it as narrowly as I
can -- that to the extent that the defendant has intelligently advised you
that for whatever reason it is his strategy to remain absolutely silent
throughout, and he believes he has the best opportunity or chance for good
results if he does that, are you not effectively denying him the type of
representation he wants under the law? Is that what you're saying?
MR. JACKSON: That's what I'm saying.
MR. McGILL: It's a lot like the situation where in many
cases witnesses are not cross-examined because they can hurt you, they can
do this or that. But however, never has there been a case that I know of
where no one has been cross-examined. And that is the issue that you're
putting in.
MR. JACKSON: Exactly.
MR. McGILL: Judge, that bothers me, that issue.
THE COURT: It bothers me to a certain extent based on
what the Supreme Court
2.33
has said in the other MOVE case.
MR. JACKSON: Because I think the specific issue --
THE COURT: That may have been their strategy, too. Their
strategy may have been, "I don't want you to say anything."
MR. JACKSON: It may have been but they never communicated
it to counsel. At least it wasn't brought out.
THE COURT: Yes, they did.
MR. JACKSON: It simply said, "Don't participate.", not
that it was strategy.
THE COURT: Well --
MR.JACKSON: I think it becomes particularly true if he
says I want you to do this and --
THE COURT: Let me say this, Mr. Jackson, even though he's
doing this and you say he does it intelligently and knowingly, isn't he in
effect not being represented by anyone?
MR. JACKSON: No.
THE COURT: Why?
2. 34
MR. JACKSON: Because I would make the representation to
the Court.
THE COURT: You're not really representing him, then.
That's what worries me. It's just as though he were sitting there without
counsel.
MR. McGILL: His point is again -- and I see the bind --
you may look at it that way but again the strategy is that the sympathy
that can become engendered as a result of this would be so much to his
benefit that he would be willing to risk it -- and he has the conscience
-- absolutely, as long as the colloquy --
MR. JACKSON: There is no guarantee that he can't be found
guilty of first-degree murder and I participate. "If you had done what I
told you I would only be found of second --."
THE COURT: No.
MR. JACKSON: Well, I'm sorry --
MR. McGILL: I understand your point. I think with his not
representing himself, not saying a word, there's a good chance that he
will
2.35
gain sympathy.
THE COURT: Why wasn't this issue raised with Justice
McDermott?
MR. McGILL: Why don't you call him up and have another
hearing in his chambers?
MR. JACKSON: He didn't specifically tell me until after
the Judge made his ruling.
THE COURT: You can call him --
MR. McGILL: Yes.
THE COURT: -- and ask him if you can see him. But I want
to bring up this other problem. Where is my Court Crier?
MR. McGILL: I have a problem. It's a stupid thing that
came up.
THE COURT: I will take one at a time. I'll worry about
the juror that took off on us, that's my number one worry.
Off the record.
(A discussion was held off the record.)
THE COURT: The Court Crier, James
2. 36
MR. McGILL: I thought she was good. She hates him, she
hates Jamal, can't stand him.
THE COURT: That's not the point that she hates Jamal.
MR. McGILL: Can't stand him.
THE COURT: That's one point, but
2. 41
doing what she did she worries me.
MR. McGILL: That's a violation of the law. She says she
won't follow the law.
THE COURT: But the thing is when this case is finally
over and she's out deliberating and they're taking too long, she's going
to get up and walk out, just walk out, you know.
MR. McGILL: That's true.
MR. JACKSON: Unless she thought -- well, I don't know if
it's just a cat.
THE COURT OFFICER: I might add on the record the only way
she could have got out -- when I first had the court officers in the rooms
giving them instructions for ten minutes, that's the only time she could
have left.
THE COURT: I don't care. She knew that she was
sequestered. She knew that she wasn't going and she's saying, "I don't
care what the Judge says, if I want to go I'm going to go."
THE COURT CRIER: I myself gave all the jurors
instructions not to leave that
2. 42
floor. In fact, there's a soda machine on that floor and
if you want soda or ice we'll take it in for them because other people use
the soda machine on other floors at times.
THE COURT: Gentlemen, do you want me to bring her in and
see what this is all about?
MR. McGILL: I don't think so, Judge. I don't know what
Mr. Jackson wants to do. I think I would accept the representations of Mr.
Petner.
THE COURT: No doubt that she left.
MR. JACKSON: Oh, yes.
THE COURT: Mr. Petner wouldn't tell me she left if she
didn't leave. I don't have any qualms about that.
MR. McGILL: I mean rather than put her through anything I
think we should just excuse her.
THE COURT: I was surprised that you took her in the
beginning. She had a very belligerent attitude.
MR. McGILL: She was soft to me.
2. 43
She turned around and said, "Don't you ask me about my
husband."
MR. JACKSON: I thought it was a matter of whose side she
ended up on but she was definitely belligerent.
MR. McGILL: I think we ought to get rid of her.
MR. JACKSON: I'm concerned and I'm reluctant to say yes
without consulting Mr. Jamal. The other thing is that suppose she had
gotten a call that somebody at home was dying or something like that and
then to say that she did that even though it was in violation of the court
order you can kind of understand.
THE COURT: If you want to ask her to come in --
THE COURT OFFICER: She can't get any calls.
THE COURT: I know that. She just took off.
THE COURT OFFICER: The telephones are off.
2. 44
THE COURT: All the individual T.V.'s in the room are off,
all the phones are off.
THE COURT OFFICER: I checked them personally.
THE COURT: They have a T.V. in the rec room, they go
there. It's monitored by the court officer so that if any news is going to
come on he shuts it off immediately. He monitors and that's the way we
keep them from getting any news media --
MR. JACKSON: Right.
THE COURT: -- anything from the news media at all. I
don't know, she may have gone out, she may have heard something about what
happened yesterday in the courtroom.
MR. McGILL: And not tell us about it.
THE COURT: She's liable to end up telling the rest of
them about it.
MR. McGILL: Is she separated now?
THE COURT: Yes, we got her separated.
2. 45
MR. McGILL: Good.
THE COURT: I told them to immediately separate her as
soon as he told me what happened.
MR. JACKSON: I wouldn't have objections to excuse her. I
mean, I don't have any objections at all.
MR. McGILL: You could order it --
MR. JACKSON: I guess I don't have to get --
MR. McGill: --sua sponte. It's clearly a violation of the
law. She could be held in contempt.
THE COURT: I don't want to hold her in contempt. I figure
she's slightly -- I don't want to say that she's mentally incompetent, but
as far as I'm concerned she's pretty close to it. Somebody that would do
something like this, just arrogantly say, "I don't care what anybody says
I'm going to take off, I'm going to take off," we can't have somebody do
that.
MR. McGILL: Yes, I think --
THE COURT: I was worried about her
2.46
from the very beginning, to be honest with you. I don't
select the jury, you gentlemen do.
MR. McGILL: I wish you did, judge. I'm finding out more
and more as I appear before you.
THE COURT: You can see these people, you know.
MR. McGILL: Well, I wanted to get as much black
representation as I could that I felt was in some way fair minded.
THE COURT: She's a mental case.
MR. McGILL: I don't think she would be charmed by this
guy.
THE COURT: She wouldn't be charmed by him.
MR. McGILL: That's one of the reasons I took her.
THE COURT: She'll hang him. But the trouble is I'm afraid
she might have gotten some information yesterday.
MR. JACKSON: I agree.
MR. McGILL: Let's excuse her, Judge.
2. 47
THE COURT: We'll get her out of the way then.
THE COURT OFFICER: I have to send Laura to get her bags
at the hotel.
THE COURT: Somebody has to take her over there. It's
12:00 o'clock. Why don't we break --
MR. McGILL: How about this McDermott thing? Wait a
minute, there's something else that I have. Judge, you'll laugh at this.
This is really stupid.What a bizarre case this is.
Last night I had a witness, one of my witnesses, Robert
Chobert. He testified at the Motion to Suppress. I had him -- for purposes
of security I had him held up overnight at a hotel so that he would be
able to testify and hope he would testify either today or tomorrow.
So when he got out of work he went to the hotel. And I
called him up and it was pretty late, so rather than have him walk
down
2.48
to my office, I said -- well, it was like 8:00 o'clock or
8:15 and I was hungry, anyway. I said, "Let me go get a sandwich and I'll
prep the case over a sandwich and after that we'll go. You got your place,
fine, everything's all set."
I went to the hotel -- I won't mention where it is -- I
went to the hotel and I was eating a sandwich there with him, and low and
behold, I see Handsome Jim walking up to me. And I looked at him and I
began to think I was dreaming, because this case really got to me this
much. And so I said, "My God, what are you doing here?"
"The jury is here." Fortunately the jury -- I only saw
very few of them -- the jury was on the other side of the dining room, all
the way at the end of the dining room, not quite a separate room but
almost like an area all the way back whereas I and Mr. Chobert were on the
opposite end and had been seated, close to the opposite end having been
seated by the hostess.
2.49
Well, immediately upon finding this out I said, "Well Mr.
Chobert, I'll ask you to go downstairs right away," which he did. I also
asked him to -- after I met him downstairs and we had a sandwich somewhere
else I asked him to immediately check out of the hotel, which he did.
And I talked to Jim a few minutes more about the
situation. I said that Jim should notify the Judge as to what happened and
that I would notify the Judge in the morning, and then I left. There was
no communication, of course, with the jury. And quite frankly if there was
ever a witness, if there was ever a witness, that I would rather not --
strike that from the record. But I'm sure they must be wondering what is
going on. But fortunately there was no communication, no contact, no
talking and he immediately left.
It was almost like a situation where you walk in, you
mistakenly open the door and begin to walk in the jury room area like back
here in 253, and you see where you are, and
2. 50
you turn around and leave. But I felt that I should let
the Court know, and it will be a matter of record. But he checked out and
he will not be there anymore. He's not around.
MR. JACKSON: Well, I'd like to object but I haven't been
instructed to do anything anyhow so --
THE COURT: As long as there was no direct contact with
the jury it's something that innocently happened. See, we didn't tell
anybody where we were going to keep the jury. It's a closed secret and we
would rather leave it that way. It's just by accident that you happened to
pick the same hotel to eat in and the same place for him to be in. But you
assure me that he's no longer there --
MR. McGILL: He checked out right after we had the
sandwich.
THE COURT: We don't have that problem.
MR. JACKSON: If I could say some thing?
MR. McGILL: Excuse me, let me get
2. 51
on the record now and say to Jim, have I represented the
situation accurately?
THE COURT CRIER: Absolutely.
MR. McGILL: Okay.
MR. JACKSON: This is off the record.
(A discussion was held off the record.)
THE COURT: Do you want to just put on the record that I
am convinced that there was nothing intentionally done here. It was just
one of these innocent things that happens once in a lifetime, I guess, or
one in a 1,000, or who knows how much. I'm convinced that there was no
direct contact with the jury and I am satisfied. All right.
MR. McGILL: I might also mention, Judge, that the hotel
was in the general area.
THE COURT: I know that. It's in the general area of City
Hall.
MR. McGILL: It wasn't like an out of-the-way hotel that I
saw them.
THE COURT: Normally we would go
2. 52
much further but I'm stuck by what the court
administration wants me to utilize because they pay the bills and they
tell me where to go. And I don't particularly care as long as I'm sure
that, you know, the things that I said like no T.V. or no telephone calls
are obeyed so that nobody can get in contact with them. As long as that's
done I don't care, really, what hotel it is as long as it's a clean hotel.
I don't want them to go someplace they used to go to like the Ben Franklin
down there and they had bed bugs eating them up, that kind of thing.
That's not being fair. As long as there is a clean hotel nearby I don't
particularly care which one. I have no interest one way or the other.
MR. McGILL: Judge --
THE COURT: I think we ought to, rather than go out and do
anything, I think we ought to call Justice McDermott and let him tell him
what the problem is --
MR. JACKSON: Sure.
THE COURT: Tell him my only concern
2. 53
is that I'm leery that he's doing it -- he doesn't really
have any trial strategy -- doing it, really, because I am not going to let
him have John Africa.
MR. McGILL: Is that the reason?
MR. JACKSON: I don't know for sure.
THE COURT: He doesn't know.
MR. JACKSON: I don't know if that's just it, Judge.
THE COURT: You know the reason I say that? If I allow him
to have John Africa I'm sure he would be cross-examining.
MR. McGILL: I wonder.
THE COURT: This is the thing.
MR. McGILL: He's forcing us to change a rule.
THE COURT: This is it. That's what worries me. Rather
than start now, why don't you go back and talk to Justice McDermott on
that specific issue. That's all I want, that's all I'm concerned
about.
MR. JACKSON: Fine.
THE COURT: If he feels it's all right
2.54
that's his strategy, well then, it's all right with me,
too. I just would like to know. I don't want to go through a whole trial
and then have them bouncing back and say there was no merit to that
strategy, he should have used the guidelines that were set down in the
Africa case and he should of, at least, asked them questions.
MR. JACKSON: That's true.
THE COURT: All right.
MR. JACKSON: Fine.
MR. McGILL: I have the opinion, by the way, as to the
Africa case.
THE COURT: No, you can take it with you when you talk to
--
MR. McGILL: No, I have the opinion of the main point in
the Supreme Court's discussion of this issue; that in their opinion Mr.
Jackson -- though I understand your narrow issue -- they believe that it
would be improper even though you're asked by your client to in any way
less than you would normally do as an attorney --
THE COURT: Yes, that's what it was.
2.55
MR. McGILL: -- and literally let the case be rammed in, I
think is the words they have used, by the Commonwealth without any attempt
at all to resist, and that this is not the way that justice is meant to
be.
THE COURT: See, that's what bothers me.
MR. JACKSON: I understand.
THE COURT: That worries me very much.
MR. JACKSON: Judge, I was going to say I wouldn't want to
be in your shoes, but I guess I'd rather be in your shoes than mine. But I
understand your concern.
MR. McGILL: How about mine? The big bad guy putting all
the witnesses on.
THE COURT: See, that's what I'm worried about and I'm
sure that's what the Supreme Court meant.
MR. JACKSON: Sure.
THE COURT: Let's leave it for 2:00 and then let's
see.
2.56
(A luncheon recess was taken until 2:00 o'clock p.m.)
2.57
AFTERNOON SESSION
(The following took place in open court out of the
presence of the jury:)
MR. McGILL: Your Honor, good afternoon.
THE COURT: Good afternoon.
MR. McGILL: The Commonwealth is prepared to proceed as it
was yesterday; however, I believe that inasmuch as we've had some
discussion in chambers in reference to the scope of representation by Mr.
Jackson, Mr. Jackson may well want to address the Court as to what the
situation is in relation to his client in terms of the scope of his
representation and, perhaps, might suggest a colloquy or what would be in
order. I know the Court was going to do that anyway but I was going to
make that suggestion. Mr. Jackson?
THE COURT: Mr. Jackson?
MR. JACKSON: Yes, Your Honor. I just bring to the Court's
attention that pursuant to Your Honor's allowance yesterday we did, of
course, petition to the Supreme Court. Justice McDermott denied the
petition
2. 58
this morning. Subsequent to that I had some questions
with regard to what my participation would be in this case in that Mr.
Jamal, at least yesterday, indicated that he did not want me to
participate in this process; primarily it was his intention to put on an
active defense with the active assistance of John Africa at counsel
table.
I've just had another discussion with Mr. Jamal and Mr.
Jamal says again that he would indeed participate with an active
participation if in fact John Africa was permitted to sit at counsel table
and to assist him. Other than that Mr. Jamal has not indicated what my
participation might be. May I have one moment?
(A discussion was held off the record.)
MR. JACKSON: Your Honor, may it please the Court, Mr.
Jamal will address the Court at the conclusion of my remarks. Mr. Jamal
would have me remind the Court that he has requested on numerous occasions
that John Africa,
2.59
assist him at counsel table. He again would like to renew
that request that John Africa assist him in this matter. And to deny him
the assistance of John Africa would substantially compromise his defense
in this matter.
He further states that without the assistance of John
Africa obviously his defense would be adversely affected. My further
participation in his defense would also be compromised in that I am now
being forced by the Court to participate as his trial counsel against his
wishes.
I believe Mr. Jamal would like to --
THE COURT: I don't want to hear anymore about it. As I
told you yesterday, I would abide by what the Supreme Court said. The
Supreme Court has spoken in this matter. They have affirmed my decisions
and there's nothing to argue any further. I can appreciate the position
that you're in, Mr. Jackson. You are in a dilemma and it calls to mind an
old adage that I remember that, you can lead a horse to the water
2. 60
but you can't make him drink. And that's true in this
case. You're doing all that you can and all that is humanly possible. If
he chooses not to actively participate in this case, he does so at his own
peril. But you have received your instructions from the Supreme Court and
I'm expecting that we will all obey the Supreme Court in this case.
We will proceed immediately. if he chooses not to
participate that is his problem.
All right. Call the jury in.
MR. JACKSON: Your Honor, I don't believe there's been a
colloquy.
THE COURT: We don't need a colloquy. The Supreme Court
says we don't need a colloquy. If he chooses not to participate, that's
his problem.
MR. JACKSON: That's what he was going to respond to.
THE COURT: We're not going to argue this over and over
and over again, gentlemen. It's been argued. It's been up to the
Supreme
2.61
Court. It is now time to move forward. It's quarter to
three and we haven't even started.
MR. JACKSON: I understand, Your Honor. I was --
THE COURT: I am not going to go through this all over
again. It's just a useless gesture. You know your position.
MR. JACKSON: Yes, sir.
THE COURT: He knows his position. I know mine. He knows
his. If Jamal chooses not to assist you in this matter he does so at his
peril. You are under instructions from the Supreme Court to defend him to
the best of your ability and that you will have to do.
(A discussion was held off the record.)
(The following took place in open court in the presence of
the jury:)
THE DEFENDANT: Who is representing me?
THE COURT: Mr. Jackson.
THE DEFENDANT: Why is he representing
2. 62
me?
THE COURT: By order of the Supreme Court.
THE DEFENDANT: Did the Supreme Court order him to
represent me against my wishes?
THE COURT: No, it's by the Court's order.
MR. McGILL: Your Honor, may I --
THE DEFENDANT: Why is he representing me?
MR. McGILL: Your Honor, may we --
THE DEFENDANT: Why is he representing me if I don't want
him to represent me?
MR. McGILL: Your Honor, may we have a very brief side
bar?
THE COURT: Let the jury out again, please.
(The jury was excused.)
(The following took place in open court out of the
presence of the jury:)
THE DEFENDANT: Why is he wanting to represent me if I
don't want him to represent
2.63
me?
THE COURT: Mr. Jamal, it is obvious to this Court that
you have been intentionally --
THE DEFENDANT: Why is he representing me?
THE COURT: -- disrupting the orderly proceedings in this
courtroom.
THE DEFENDANT: I asked you a question.
THE COURT: He is representing you.
THE DEFENDANT: Against my wishes.
THE COURT: By order of the Court against your wishes,
yes.
THE DEFENDANT: He's not working for me. He's working for
the court, isn't he?
THE COURT: Yes.
MR. McGILL: Your Honor, as long as we do have this
opportunity with Mr. Jamal, before Your Honor makes any further order
--
THE COURT: Well, I am directing Mr. Jamal to sit down. If
he chooses not to participate in the proceedings, that's fine. But I will
not allow him to continue to disrupt.
2. 64
the proceedings here.
THE DEFENDANT: I asked you a question. There's nothing
disruptive about the question.
THE COURT: I am going to remove him from the
courtroom.
THE DEFENDANT: I asked you a question? There's nothing
disruptive about that.
THE COURT: The Supreme Court says there are two
alternatives; one is to gag him, the other is to remove him from the court
room. I choose to remove him from the court room. He can come back any
time he agrees to abide by the proper decorum in this courtroom.
THE DEFENDANT: Do I have to agree to counsel I don't
want?
MR. McGILL: Before that is done may I request the Court,
as long as we're here with Mr. Jamal and Mr. Jackson, that we do, if you
would, briefly conduct a colloquy with this defendant as to the situation
in terms of representation of Mr. Jackson. It is clear from what Your
Honor said and the Court said that
2.65
Mr. Jackson represents this defendant and is to do the
best that he can. Now I would like if Your Honor would at least advise at
this point in time Mr. Jamal the advantages and disadvantages of active
participation of the defendant in his own defense, as well as, the
advantages and disadvantages of either for strategic reasons or for other
reasons asking his attorney not to participate. I think that that is
needed.
THE COURT: I don't know what his feelings are. It may be
that it's up to Mr. Jackson to inquire of Mr. Jamal for the record what he
wants to do. He doesn't want to answer my questions. He just gives me
questions.
THE DEFENDANT: You don't want to answer mine.
THE COURT: And you don't answer my questions. Maybe Mr.
Jackson can throw some light on the situation.
MR. McGILL: I have no problem with that at all. Maybe
Your Honor would permit myself to ask Mr. Jamal some questions.
2.66
THE COURT: You want to ask him questions? Go ahead.
MR. McGILL: Mr. Jamal -- we'll ask Mr. Jackson if there's
any objection. I see a negative response.
Your Honor, thank you for the opportunity.
Mr. Jamal, do you recognize that if you do not --
THE DEFENDANT: Before you ask me a question I'd like him
to answer my question about why is he representing me against my wishes
and against his own wishes. This is not a mock trial.
MR. McGILL: Do you realize, Mr. Jamal, that if you do not
participate in your trial that you may well be at a disadvantage in this
court.
THE DEFENDANT: Why are you asking me questions when he
hasn't answered my questions?
MR. McGILL: Mr. Jamal, do you or do you not want to
actively participate with
2.67
Mr. Jackson in this trial?
THE DEFENDANT: I want counsel of my choice which is John
Africa.
MR. McGILL: I assume from that that you did not want to
actively participate?
THE DEFENDANT: You can assume what you wish. My answer
was that I want counsel of my choice which is John Africa.
MR. McGILL: Your Honor, perhaps since it's obvious that
we're going to get the usual double-talk, I would suggest --
THE DEFENDANT: I think it's you that's
double-talking.
MR. McGILL: -- if Mr. Jackson would come up to the Court
and Your Honor could, in a colloquy, ask Mr. Jackson the questions similar
to the questions that were asked at side bar in front of Mr. Jamal so that
we can get this squared away.
THE COURT: I think Mr. Jackson is in a better position
than I am as to what the feelings and the intent of Mr. Jamal are in this
case. I don't know. I don't have the slightest,
2.68
idea.
MR. McGILL: Fine.
THE COURT: So Mr. Jackson, for the record, would you like
to tell us and then we can listen?
MR. JACKSON: Your Honor, I believe I am not at all
certain what it is that Mr. Jamal wishes to present to the Court. It would
be presumptuous on my part to speak for Mr. Jamal. I have indicated to the
Court the substance of our conversation and I think for me to make any
further representations --
THE COURT: What is the substance of it?
MR. JACKSON: What I said, his request for John Africa
and, again, his last instruction and, certainly on the record yesterday,
would be that I not participate in this proceeding.
THE COURT: I know that but I have ruled on that question
and I said that I would abide by whatever the Supreme Court said.
MR. JACKSON: Yes, sir.
2.69
THE COURT: The Supreme Court has now ruled on that.
MR. JACKSON: That is correct.
THE COURT: What is his position now? Now, this is what I
want to know.
MR. JACKSON: Can I have one moment, Your Honor?
(A discussion was held off the record.)
MR. JACKSON: Mr. Jamal advises Your Honor if you wish to
ask him he's prepared to respond.
MR. McGILL: Well, I think Your Honor is asking Mr.
Jackson now.
MR. JACKSON: I don't know.
THE COURT: I just wanted to know, you understand what
your position is? The Supreme Court has made it clear to you.
MR. JACKSON: Yes, sir.
THE COURT: That you are to be the primary attorney here
and you are to defend Mr. Jamal to the best of your ability. So we can't
go back again and start worrying about why
2.70
Mr. John Africa can't be here at this proceeding. That's
already been ruled upon.
MR. McGILL: Your Honor, could you instruct Mr. Jackson in
the presence of Mr. Jamal the status, or first of all, to find out whether
or not he, Mr. Jackson, will actively represent the defendant?
THE COURT: Well, I've no reason to believe that Mr.
Jackson will not actively represent him. I would assume that as a member
of the bar, an officer of this court, that he would certainly carry out
his duties.
MR. McGILL: I'm only thinking in terms of what was said
this morning, Sir. I think that should be clarified.
THE COURT: Based on his answers now it's an altogether
different statement. Now I don't know what Mr. Jackson is going to do. If
you want to ask Mr. Jackson what he's going to do, fine.
Will you tell us what your intentions are, Mr.
Jackson?
MR. JACKSON: Your Honor, with
2. 71
regard to my last instruction from Mr. Jamal with regard
to my participation, is that if I could not in fact absolutely follow his
instructions and direction I was not to participate in this proceeding,
and that is in fact -- he has a number of strategies, and one of the
strategies was what I indicated earlier; that he would actively
participate in this if John Africa was here. Previously the instruction I
got from Mr. Jamal was that I would not participate in this trial,
sir.
MR. McGILL: I would say, Judge, on the basis of that --
are you through with your statements?
MR. JACKSON: Well --
MR. McGILL: On the basis of that, Your Honor, it appears
that the conversation this morning is really not relevant on the
record.
THE COURT: That's right.
MR. McGILL: Because this morning it was mentioned that
the defendant would be purposefully and strategically quiet and that
2.72
there would be no participation from the defendant, and
also that he and Mr. Jackson would agree that it would be in his best
interests strategically not to act at all, which would mean cross-examine
witnesses, or call witnesses, or whatever. Has that position changed, Mr.
Jackson?
MR. JACKSON: No, that is the same. Your Honor, I did not
use the specific words but I could certainly do that.
MR. McGILL: Please.
MR. JACKSON: Fine. It is my understanding that Mr.
Jamal's wishes are, number one, that if I cannot act consistent with his,
all of his wishes, that at the very least I not participate in this trial
because it is indeed against his wishes for me to participate. It is
against his interests for me to participate in this trial. And based on
that I don't think that I could in any way participate in any manner that
would be in derogation of his rights and derogation of his
2.73
interests.
MR. McGILL: Judge, I have to respond to that. That's a
different situation. We're talking about two things: Number one, we're
talking about following Mr. Jamal's instructions and not doing anything at
all --
MR. JACKSON: Yes.
MR. McGILL: -- because he cannot represent him in the way
that he wants. That's one thing. Another thing is to not do anything at
all as his counsel out of a strategy which is that for the benefit of Mr.
Jamal a result which he wishes may well occur through the use of this
strategy, which is a proper type of strategy although it is fought with
danger. However, he has a right to do that.
If we're viewing this from the words of Mr. Jackson, it
appears clear that if we're doing it under the first part only, which is
that he is quiet and will do nothing solely because he can't represent him
the way he wants, that is in violation of the Supreme Court order which
says that you are to represent him to the
2.74
best of your ability.
THE COURT: Absolutely.
MR. McGILL: If it is done strategically for another
reason, that's something else. We've got to clarify that.
THE COURT: That's not what he's saying.
MR. JACKSON: I'll clarify it for the record. It is not
solely and simply because I am not counsel of his choice. But in addition
to that, it is his decision, as a matter of strategy, that I not
participate in his trial because it is against his interests. And that is,
at least, part of his trial strategy. And as I suggested to the Court
earlier, I don't believe that it would be appropriate for the Court to
intrude into the defendant's trial strategy. I think that is consistent
with his trial strategy. For me to participate and indeed go against his
very wishes would be to compromise his defense. And for that reason I am
specifically advising the Court that pursuant to the instructions I
believe that I
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have from Mr. Jamal; and that is, it is indeed, his
strategy that I not participate in his trial, that I not conduct any
examination, that I not object, that I not do any of those things that a
lawyer normally does --
MR. McGILL: And it's because it's in his best interest.
What you're saying is it's because it's in his best interest that you do
not do that, and that's his belief.
MR. JACKSON: I'm saying his belief for me to participate
would be against his best interest. That's what he said to me. I can't put
words in his own --
THE COURT: Well then, you better get on the record --
MR. JACKSON: Whether I say it's in his best interest or
against it's a matter of semantics.
THE COURT: You better get it from him on the record.
MR. JACKSON: Do you want to speak?
THE COURT: Your his attorney. Put it on the record.
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MR. JACKSON: Your Honor, I'm constantly being asked and
demanded to do things by everyone. I can't make Mr. Jamal talk.
THE COURT: Neither can I.
MR. JACKSON: Well --
MR. McGILL: Judge, Mr. Jackson is quite right but I think
Mr. Jackson is aware that we, both the Commonwealth and the Court, are in
a position of some difficulty in communication in getting on the record
that which is proper in order to guarantee the type of record necessary in
a trial. Now I would ask that Mr. Jackson, inasmuch as this is really the
only way I think that we can approach this at this point, if we could ask
Mr. Jackson if he has told his client, and if he is aware, in the presence
of his client, of the various disadvantages of his actions even though it
may prove to be a very strategic action indeed. Nonetheless, he should be
told, number one, that if you do not cross-examine witnesses their truth
may well not be sufficiently tested for a
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jury as a finder of fact; if you do not call your own
witnesses and you have a defense it may well be to your disadvantage not
to call witnesses; it may be smart not to call witnesses --
THE COURT: He's waiving his right.
MR. McGILL: That's correct.
THE COURT: Waiving his constitutional right which could
be lost forever.
MR. McGILL: That is also correct.
THE COURT: And another thing I want to bring out, the
fact that you direct your attorney not to cross-examine witnesses, in
addition to what Mr. McGill has said, that the jury may properly infer
that everything you're saying is truthful, if you should be convicted and
if the Appellate Court would grant a new trial and if that witness was no
longer available those prior notes of testimony could be read at your
second trial, and you will have no opportunity to cross-examine those
records. So that's a very important right that you're losing.
And I think Mr. Jackson has a
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responsibility to inform you of all of these rights that
you will lose by not actively participating in this trial.
MR. McGILL: Your Honor, also --
THE COURT: And in addition to that you do so at your own
peril.
MR. McGILL: Also, of course, he has a right to testify,
as he well knows.
THE COURT: Certainly he has a right not to testify if he
so chooses and the jury cannot infer anything from that. You have an
absolute right -- and I'm sure Mr. Jackson has talked to you about this
--
MR. McGILL: Judge, it's particularly important since you
mentioned about the notes of testimony, if he were convicted they could be
used again, because even though he chooses not to cross-examine --
THE COURT: They are available now.
MR. McGILL: -- because of strategy, he has had the
opportunity to cross-examine.
THE COURT: That's right.
MR. McGILL: As Your Honor is making
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clear now, it's the opportunity that allows those notes
of testimony to be admitted in a subsequent proceeding if the witness is
unavailable. Is that what you also said?
THE COURT: That's exactly what I'm saying. So he has a
lot to lose as far as his rights.
MR. McGILL: Also, Your Honor, the openings and
summations, if he gives that up -- an opening, of course, is an
opportunity to outline your defense. You don't need it but you can do it.
A summation is clearly your side of the case, arguing with vigorous
intent.
THE COURT: It's a very important function,
absolutely.
MR. McGILL: Also, the instructions of the Court, any kind
of instructions of law that counsel may wish the Judge to consider in
reading instructions of law to the jury. Those particular instructions, if
he chooses not to put those on paper and submit any, it may hurt the
defendant inasmuch as he may have important
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points that the Court may have overlooked.
Particularly important, Your Honor, is objections. And
I'm speaking loud enough so that Mr. Jamal, as well as, Mr. Jackson can
hear what I'm saying. Objections being made during the course of trial for
evidence that is thought to be introduced by the Commonwealth is a very
important function, because objections can prevent evidence from being
admissible. These type of rulings can well be very important in the
determination of the facts that a jury will eventually consider for the
verdict.
All of these, whether it be objections, summations,
cross-examination, all of these are very important aspects of work from a
defense counsel. And if the defendant chooses not to use any of those
tools which are at his disposal in a proceeding, it can hurt him
significantly. It can also be the smartest strategy that he would want.
But I would suggest, Your Honor, it may not.
THE COURT: And by the same token,
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he would lose a very important constitutional right that
he has, and lose it forever.
MR. McGILL: Mr. Jackson, have you at least, mentioned
this to Mr. Jamal in terms of your many conversations? These things I
mentioned.
MR. JACKSON: I have, I believe, substantially advised him
of the rights that he has constitutionally with respect to his right to
counsel and things of that sort. The specific circumstances, what you're
going through now, I have not at all gone through since it has just
happened. There is no reason to have done it before.
MR. McGILL: Would Your Honor permit at this moment an
opportunity, a few minutes opportunity, for Mr. Jackson and Mr. Jamal to,
at least have that opportunity to discuss what I just said?
THE COURT: Sure.
THE DEFENDANT: It's very curious that the Court seems
protective of certain rights and clearly doesn't give a damn about
others,
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the right of self-representation is absolutely an
absolute right. Just like the constitutional rights you had about
objections, examining, cross-examining witnesses, but the right of
self-representation has been stolen by you several times during the voir
dire, and it's been stolen before this actual trial began. My right of
determining a jury of my peers was seized by you without cause. My right
of self representation was stolen by you without cause and without
reason.
THE COURT: I'm just saying --
THE DEFENDANT: The rights you're saying are not rights at
all if you can take them at --
THE COURT: You have rights --
THE DEFENDANT: If they're not absolute rights they're not
rights at all.
THE COURT: You have rights that you can use and you can
waive by your conduct. That's not what you're doing. You're losing and
you're waiving these rights by your conduct in this courtroom. You choose
to do so. As I
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told you before, you do so at your own peril. I warned
you time and time again. I've tried to give you good advice but you won't
take it.
THE DEFENDANT: Are you my defense counsel now, Judge?
THE COURT: No. to advise you of the rights
THE DEFENDANT: my advice. I would like my John Africa
seated there at
THE COURT: I told ruled. But I'm just trying that you
might lose. Judge, in terms of advice coming from the defense
table.
you that's over
THE DEFENDANT: You're telling me
THE COURT: The Supreme Court said
THE DEFENDANT: And I'm saying to you I'd rather have my
advice come from John Africa rather than Sabo.
THE COURT: Fine.
MR. McGILL: Can you give an opportunity at this point to
Mr. Jackson and Mr. Jamal to discuss the area of the right he is giving
up?
THE COURT: And one other right you
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are giving up, if you continue in these outbursts to
interject yourself and interrupt Court, you will be giving up your right
to be present during the course of this trial until you agree to abide by
the proper course of conduct.
THE DEFENDANT: Your threats --
THE COURT: That's not a threat. That's just telling you
what rights you're going to give up.
THE DEFENDANT: Your threats and your warnings are
meaningless to me.
THE COURT: I know that. You already told me that.
THE DEFENDANT: Okay.
THE COURT: Your conduct has already exhibited that to
me.
THE DEFENDANT: My conduct has been in my own defense.
THE COURT: I have said I've --
THE DEFENDANT: I have not been disruptive in this court,
Judge.
THE COURT: I said I will give you
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a little time to talk to your attorney.
THE DEFENDANT: I'm telling you, you can do what you want
to do. I'm telling you that my rights have been disrupted and you're
sitting there talking nonsense.
THE COURT: All right.
(A discussion was held off the record.)
(A short recess was taken.)
(A conference was held in chambers off the record.)
THE COURT: Let the record indicate that the Court has
allowed Mr. Jamal to speak to Theresa Africa and to his attorney in the
hope that some agreement may be reached as to what they're going to do in
this case.
MR. McGILL: It was approximately 40 minutes, Judge.
(A discussion was held off the record.)
THE COURT: While we're waiting, because of the
unavailability of Juror Number 1, Juror Number 13 will take the place of
Juror
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Number 1.
(A discussion was held off the record.)
THE COURT: Mr. Jackson?
MR. JACKSON: Sir?
THE COURT: Can Mr. McGill address the jury with his
opening remarks without any interruptions from Mr. Jamal?
MR. JACKSON: Your Honor, we have perhaps one minute more
and I think I'll be in a position to --
THE COURT: All right.
(A discussion was held off the record.)
THE COURT: All I want to know is can Mr. McGill give his
opening remarks to the jury without any interruptions from Mr. Jamal?
THE DEFENDANT: What you say?
THE COURT: May we proceed with Mr. McGill making his
opening statement to the jury without any interpretations, please?
THE DEFENDANT: Can we proceed with John Africa at the
defense table?
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THE COURT: That's already been ruled on.
THE DEFENDANT: Ruled on or not I mean, this is my
trial.
THE COURT: I know that. The Supreme Court has ruled on
it. It's been up to the Supreme Court.
THE DEFENDANT: I understand. You probably had coffee
together and talked about it. I understand. The point I'm making --
THE COURT: I told you before if you interrupt me one more
time that's the last. You will be removed from the courtroom.
THE DEFENDANT: What I'm saying to you is --
THE COURT: Can we bring in the jury, please?
THE DEFENDANT: -- that threat is meaningless.
THE COURT: I know it's meaningless to you. You've told me
that a million times. Bring the jury in. I'm telling you for your own
sake, if you interrupt I'm
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going to remove you.
THE DEFENDANT: What does that mean to me? What I'm saying
to you is, I would like to have the defense of my choice. I'm having a
problem with this man. We argued for the last half hour. He cannot do what
I want him to do. Do you understand that? So I renew my motion for John
Africa to assist me on my defense. Did you hear me, Judge?
THE COURT: Just a moment.
(The following took place in open court in the presence of
the jury:)
THE DEFENDANT: I know if you said it was approved it
would be done. It seems real clear to me and it should be clear to
everyone in this court that you're afraid of having John Africa's presence
in this courtroom even though it's in my defense, in defense of my
life.
THE COURT: Mr. McGill?
MR. McGILL: Your Honor, may I proceed?
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THE DEFENDANT: I'm not finished.
THE COURT: We're finished.
THE DEFENDANT: I'm not finished. We are not finished.
MR. McGILL: May I proceed with the opening before this
jury that's been waiting for two days?
THE COURT: Yes.
THE DEFENDANT: I don't care.
MR. McGILL: You don't care what?
THE DEFENDANT: I have
a right to the defense of my choice.
THE COURT: Let's move the jury out just for a minute.
THE DEFENDANT: This does not mean anything to me. They
mean absolutely nothing to me.
(The jury was excused.)
(The following took place in open court out of the
presence of the jury:)
THE COURT: Mr. Jamal, you have interrupted these
proceedings for the last time. The Court is ordering the sheriff to remove
him
2.90
from the courtroom. We'll proceed in your absence.
THE DEFENDANT: That doesn't mean anything to me.
THE COURT: When you wish to abide by the proper decorum
in this courtroom you will be readmitted to the courtroom. Until then you
are being removed.
THE DEFENDANT: What does that mean to me? That is not
news.
THE COURT: Please, sheriff, take him out.
THE DEFENDANT: What I'm saying is, I want the defense of
my choice so this case -- get off of me.
THE COURT: Sit down in this court room or you will be
removed.
THE DEFENDANT: They don't want to sit.
THE COURT: You will be removed.