Page 2.
MR. McGILL: I am putting on the record, again, that the
Judge has permitted Theresa Africa to speak with --
MR. JACKSON: Janet Africa.
MR. McGILL: I'm sorry. It's Janet this morning.
THE COURT: That's Janet, the other one wasn't here.
MR. McGILL: -- to speak to Mr. Jamal, and she has been
doing it for about ten, fifteen minutes. I believe there was a time when
you and Miss Africa and Mr. Jamal were talking together.
MR. JACKSON: Just briefly, only to tell me that they
didn't want me to sit there, that's all.
MR. McGILL: I mentioned this to Mr. Jackson before. I'd
ask, again -- I realize this is not his personal fault but the defendant's
-- I'd request once again pursuant to the rules of discovery any
statements or any
Page 3.
names of witnesses that he would call. He indicated to me
that as far as he knew the only, witness that he would call, if he decides
to call them, would he the witnesses he has told me about, meaning Jessie
Hightower, Robert Pickford and the two doctors, Doctor Cudemo and Doctor
Anthony Coletta.
MR. JACKSON: Could I interrupt? With the possibility,
depending upon who you call I may call, there be witnesses that you've
already gotten statements from, some of your witnesses.
MR. McGILL: My witnesses?
MR. JACKSON: Yes.
MR. McGILL: Any statements that I have given you --
MR. JACKSON: Yes.
MR. McGILL: Apparently, you do not have any other
statements.
MR. JACKSON: Oh, no.
MR. McGILL: But at least you would give me an indication
before the defense who it might be so that I would know.
MR. JACKSON: Sure.
Page 4.
MR. McGILL: I've also made a request and I believe I made
a request, yes, before Judge Ribner for this, the names of all possible
character witnesses. This was done at the same time as the request for the
criminal records. Any witnesses that he may call I made a request of Mr.
Jackson of the names of all potential character witnesses so that I could
make a check on their records and, at least, know also who they are, if he
intends to call any. There is an indication that he may call some. I've
received no names of character witnesses; therefore, I can only assume
that the character witnesses that he did use at the hearing, the bail
hearing, would be the only character witnesses that he could put on,
because they're the only ones that I've been notified of. I would petition
to exclude, Your Honor - so everyone's on notice -- to exclude the
testimony of anyone who I'm not informed of at this point -- because I
think that I may rest my case tomorrow -- and at this point I've received
no word except what Mr. Jackson has done
Page 5.
pursuant to the rules of discovery.
MR. JACKSON: Your Honor, may it please the Court, with
respect to any fact witnesses I have no disagreement with the
Commonwealth. Regarding character witnesses, aside from the difficulties
that I'm having with Mr. Jamal, and Mr. Jamal has indicated to me, at
least previously, that he intended to present character witnesses, I can
appreciate the concern that Mr. McGill has for determining what police
record they may have but I don't think it would be appropriate to exclude
character witnesses simply because he hasn't gotten the names in advance.
Character witnesses, as you might suspect, are presented to some extent
depending upon their availability. Mr. Jamal has previously indicated, to
me at least, that he has several witnesses who were character witnesses
who were coming from Europe. Whether in fact that occurs I don't know, but
even those persons who may be in the Philadelphia community, I think to
just exclude them without knowing when and if they're going to come -- I'm
sorry, to
Page 6.
exclude them because there is no prior notification I
think would work to a severe disadvantage to him. Mr. McGill could simply,
when and, if they're going to be presented, he can call and get a record
check on them. I don't think that presents any kind of overwhelming
problem.
THE COURT: I don't know how long it would take to get a
record check but I see nothing wrong with giving him the names in advance
even if you don't call them.
MR. JACKSON: Judge, let me assure you and Mr. McGill, I
have no names at this point. I have absolutely no names.
MR. McGILL: This is what the discovery rules are meant to
avoid.
THE COURT: All that we can hope is that Mr. Jackson will
talk to Mr. Jamal and try to get them from him and tell him that if he
doesn't give them to us that they may very well not be permitted to
testify. That's all I can do. I can't force him to give them to Mr.
Jackson.
MR. McGILL: Of course.
Page 7.
THE COURT: Let's be practical. I can't force him to do
anything. I can't force him to sit in the chair.
MR. McGILL: I will point out that he's been very adamant
before the trial started in getting the criminal records of my witnesses
and I did give them to him. So I've abided by the court rule.
THE COURT: All right.
MR. McGILL: I am ready to go if you are. Off the
record.
MR. JACKSON: Your Honor, may I advise the Court that
after Mr. Jamal has conferred with Janet Africa for, I guess, now about
fifteen minutes or so he's indicated to me that it's his intention to be
silent in the courtroom and not to be disruptive and he would generally
behave himself pursuant to the Court's request.
THE COURT: Okay. One other thing.
Page 8.
You're not using D-10. You took it back?
MR. JACKSON: D-13 I think was the book.
THE COURT: Yes. D-13 is the book.
MR. JACKSON: Yes.
THE COURT: And D-10 is the mug shot of Cynthia White. You
took that back?
MR. JACKSON: Yes, I did.
THE COURT: Just so we have our records straight.
MR. JACKSON: I'm not going to be able to use them so I
just took them back.
THE COURT: All right.
(Court convened at 10:25 a.m. The following took
place
in open court in the presence of the jury:)
THE COURT: Good morning.
MR. McGILL: May I proceed with my next witness?
THE COURT: Yes.
MR. McGILL: Commonwealth's next
Page 9.
witness recalling Roy Land, Officer Roy Land.
MR. McGILL: May I proceed, Your Honor?
THE COURT: Yes.
BY MR. McGILL
Q. Officer Land, pursuant to your duties as part of the
Mobile Crime Detection Unit, did you have occasion to go to the Jefferson
Hospital?
A. Yes, sir, I did.
Q. And did you have occasion to make a sketch?
A. Yes, sir.
Q. And did you also have occasion to have some
photographs taken?
A. Yes, sir, I did.
Q. I'll ask that these photographs be marked C-45 in this
order, 6, 7 and 8, 9, 10, C-50 and C-51 and also the sketch to be marked
C-52.
Page 10.
All right. Now officer Land, I'll ask you, if you would,
with the Court's permission, you could come down with the sketch, as well
as the photograph, to this chart or at least this stand here to put up the
sketch, please.
All right. Officer, can you identify C-52, the
sketch?
A. Yes, sir. That's a copy of a rough sketch that I
did.
Q. And what is it made of? I mean, what does it
represent?
A. It is the Receiving Ward of the ward of Jefferson
Hospital.
THE COURT: Why don't you move that sketch where you're
standing, maybe that will be better. Turn it around so the jury can see.
Can you see over there?
MR. JACKSON: Yes, sir.
THE WITNESS: It's the Receiving Ward inside Jefferson
Hospital, the Accident Ward.
BY MR. McGILL:
Q. Speak loudly, if you would. Where is the hospital
located?
Page 11.
A. Tenth and Walnut.
Q. Would you indicate what that represents, the sketch,
as far as the Receiving Ward is concerned?
A. Yes, sir. At Tenth and Walnut, Jefferson Hospital they
have a small driveway which is between Sansom and Walnut that circles
around the hospital. This being the main entrance leading into the
Emergency Room. This is showing you the Receiving desk where people go to
sign in, names and what have you.
To follow in an easterly direction, there's another set
of double doors. You can see back into the emergency area where the
doctors, nurses, what have you, where they work and everything else. This
is just a desk, chairs, waiting lounge and the large floor area.
Q. All right. What time did you make that sketch?
A. That sketch was made on February 4 of 1982 at 6:40
p.m.
Q. All right. And did you also take photographs of the
area?
A. Yes, sir, I did.
Q. They have been marked C-45 through C-51. Will you take
a look at those and see if you can identify each, first of all, as
photographs that were taken by yourself.
Page 12.
A. Yes, sir, they are.
Q. Would you start with C-45 and show on the sketch what
the photograph represents.
A. Yes, sir. This is a view inside the Receiving ward,
it's a view looking towards the southwest corner of the Accident Ward.
This is looking in this direction showing the entrance doors leading
in.
C-46 is a view looking towards the -- I'm sorry. The
first one, C-45 is a view looking towards the southeast corner.
C-47 is a view looking towards the southwest corner, in
this direction, then showing the same doors leading.
This is a view showing the emergency doors leading into
the Accident Ward from outside.
C-48 is a view looking towards the northeast corner
inside the Emergency Room which is showing the emergency doors or the
doors leading back into the operating room, or whatever that may be.
C-49 is a view looking north inside the Emergency Room
taken approximately from the front door looking at the back wall.
Page 13.
inside the room showing the part of the area of the
receiving area and showing the hallway and doors leading to the rear of
the receiving desk.
C-51 is basically showing the same general area but now
it's showing more of the receiving desk, the area where people have to go
to give their names and everything.
Q. What are the measurements of the area as represented
by the sketch?
A. The measurements were taken from the wall to the
nearest object being the door opening leading in is four foot eight, which
is a door that springs open, continuing around from the door over to the
adjoining wall would be four foot. Each measurement is broken up to where
a section ends and begins, first as a corner wall continuing to a window
and then stopping and measuring the window, the length of the window.
That's why everything is broken down as such. This being three inches,
this being, supposed to be two foot, another six inches, three foot being
the doorway, ten inches being the doorway to the wall, continuing all the
way around, two foot eight part of the receiving area and the nine foot in
front of the receiving desk.
Page 14.
Q. Say from the side part of the wall area where you have
the lines indicating the boundaries on that sketch going north and south
what is the distance from the lower portion of the area here, if you're
able to tell, up until here, which is the northern part of the line?
A. (No response.)
Q. If you can tell.
A. I'm adding up the individual numbers. Approximately
twenty-nine feet from the south wall to the north wall.
Q. Now, did you have occasion to take photographs or
measurements of any of the areas beyond that area which is represented on
the sketch?
A. No, sir, I did not.
Q. But as far as any kind of emergency area or treatment
rooms and so forth back on this side you did not get involved in that at
all, correct?
A. Correct.
Q. And you made that sketch, sir, as well as the
photograph, at my request; is that correct?
A. Yes, sir.
MR. McGILL: Cross-examine.
Page 15.
BY MR. JACKSON:
Q. Officer Land, from that diagram, if you're standing in
that lobby area is there another automatic door other than the door
leading from the street?
A. Yes, sir.
Q. Where would it be?
A. That is the door on the far northeast corner that
leads back into wherever. I did not go back there.
Q. Okay. Now, by an automatic door, that's one of those
doors where you step on the treadle and the door opens up?
A. Either that or it had an electric eye which extended
over the top of the door. One of them had that and the other one was a
step-on, but I'm not sure which one.
Q. Was there another one other than the one -- there are
two automatic doors all together?
A. Yes, sir.
Q. The one leading from the street to the lobby and then
one leading into the treatment rooms?
A. Yes, sir.
Q. And the treatment rooms would be in which
Page 16.
A. It would be north after you go through the second set
of automatic doors.
Q. So then you'd go through the automatic doors and make
a left-hand turn to go to the treatment rooms?
A. To the best of my knowledge, yes, sir.
MR. JACKSON: Fine, sir. I have no further questions.
MR. McGILL: Thank you, officer. Do you have any
questions, Your Honor?
THE COURT: No.
MR. McGILL: Thank you.
THE DEFENDANT: I have same questions.
THE COURT: You are excused.
THE DEFENDANT: Mr. Land, when were those photographs
taken?
MR. McGILL: Your Honor, may we go to sidebar?
THE DEFENDANT: Commonwealth Exhibits 46 to 52, when were
they taken? You can answer the question.
THE COURT: No, you can't.
THE DEFENDANT: If you know.
Page 17.
THE COURT: Just remain standing there.
THE DEFENDANT: Is it true that the photographs were taken
February of this year?
MR. McGILL: Can we just go to sidebar?
MR. McGILL: Can we get everybody out of the room?
THE COURT: You are excused, Officer Land.
MR. JACKSON: If they're leaving there's no reason to have
a sidebar.
THE COURT: All right.
Page 18.
THE COURT: He's answered whatever questions your attorney
wanted to ask him.
THE DEFENDANT: But he didn't ask the questions I wanted
asked.
THE COURT: He's already answered that question that he
went there in February of this year.
THE DEFENDANT: What are they supposed to reflect if the
incident was in December of 1981?
THE COURT: He said that he took them February of this
year. If you were sitting there paying attention you would have heard
that.
THE DEFENDANT: What were they supposed to reflect if this
incident happened in December?
THE COURT: I know that. They reflect what it looked like
in February of 1982.
THE COURT: He's already answered that, quite obviously.
Now will you sit down and be quiet and let's proceed.
Page 19.
THE DEFENDANT: Judge, I was asking the question in the
spirit of proceeding. Obviously I'm not obstructing anything.
THE COURT: Yes, you are.
THE DEFENDANT: Again, I am not.
THE COURT: Yes, you are.
THE DEFENDANT: I would like to protest the continued
presence of Mr. Jackson as my defense. He is not my counsel. My counsel is
John Africa.
THE COURT: I know that.
THE DEFENDANT: You know that? Then why won't you allow
him to assist me at defense table?
THE COURT: Because I made that ruling over and over and
over again. No sense in going into it again.
THE DEFENDANT: It is sense in going into it again when it
was not done to my satisfaction.
THE COURT: Mr. Jamal, are you interrupting the court
proceedings intentionally?
Page 20.
THE DEFENDANT: Yes. My motive is freedom.
THE COURT: I see.
THE DEFENDANT: Is there any motive in your actions in
denying my right to represent myself?
THE COURT: You're disrupting the decorum. That's why you
can't represent yourself. There's no finality.
THE COURT: We could be standing here arguing all day long
for weeks on weeks, and I'm never going to convince you of anything.
THE DEFENDANT: Yes, you can.
THE COURT: No, I can't.
THE DEFENDANT: If you can convince me that he can get me
acquitted I'll have no problem with that. I can convince you that John
Africa can.
THE COURT: I can't look into the future.
Page 21.
THE DEFENDANT: I'm not talking about magic.
THE COURT: In the future, I can't answer that
question.
THE DEFENDANT: I'm not asking you to look into the
future. I'm asking you to deal with the present issue which is before you;
John Africa as my counsel, as my defense in assisting.
THE COURT: We've already ruled on that and the Supreme
Court has ruled on it. So can we proceed?
THE DEFENDANT: Sure, we can, Judge. Can I ask questions
of these witnesses?
THE COURT: No.
THE COURT: No, not at this time.
THE DEFENDANT: I didn't mean at this time Judge. At the
time when closing argument is prepared can I make a closing argument when
it's proper?
Page 22.
question at this time.
THE DEFENDANT: Okay. Can I question the prosecution
witnesses of my own choice at at time which I choose?
THE COURT: No. Your attorney will do all that.
THE DEFENDANT: That's not my attorney you keep pointing
to. He is here at your insistence. I've ask that he be withdrawn; he's
asked that he be withdrawn. He's your attorney, Judge, not mine. He
functions for you and not for me.
THE COURT: He's doing a very good job for you.
THE DEFENDANT: That's easy for you to say because you're
not on trial.
THE COURT: I know that. You're not here half the times
because you don't know what he's doing.
THE COURT: The other times he's here and doing a good
job. You're not paying attention.
Page 23.
assumption that I'm not paying attention. I have a book
full of notes to reflect I am paying attention.
THE DEFENDANT: Yes, I have. This is a trial for my life.
It's not for yours.
MR. McGILL: I would have no objection if Mr. Jamal has
some questions to confer with Mr. Jackson, and he can ask the
questions.
THE COURT: I have no objection to that. As a matter of
fact, they have been conferring together and I'm assuming that Mr. Jackson
is asking the questions that Mr. Jamal feels that he should ask.
THE DEFENDANT: Judge, I would like to ask questions of
several, at least three, prosecution witnesses.
THE COURT: You see I've already ruled. Mr. Jackson will
be your attorney. Now, do you have any questions you wish him to ask? Just
tell it to him and I'm sure he will ask them.
Page 24.
THE COURT: Just give the questions to Mr. Jackson and he
will ask them.
THE DEFENDANT: I understand what you're saying. Can I ask
questions?
THE COURT: I'm answering your question. Whatever
questions you have you just give them to Mr. Jackson and he will ask the
questions.
THE COURT: You don't understand English.
THE COURT: Yes. I told you, if you have any questions
give them to Mr. Jackson and he will ask the questions.
THE COURT: Are you going to sit down and let the Court
proceed with the next witness?
THE DEFENDANT: I've got no problem with the Court
proceeding with the next witness.
THE COURT: All right. Sit down.
Page 25.
THE DEFENDANT: I would like to ask questions of that
witness if I so desire.
THE COURT: -- I told you, no, you will not ask any direct
questions. You will give them to your attorney and he will ask them.
THE DEFENDANT: That's not my attorney. You keep pointing
to him. That's your attorney.
THE COURT: Okay.
THE DEFENDANT: It's not okay with me because you're not
on trial.
THE COURT: Mr. Jamal, are you going to sit down so we can
proceed with the next witness?
THE DEFENDANT: I have no problem with his proceeding,
Judge. I would like to ask questions of several prosecution witnesses of
my choice.
Page 26.
THE COURT: Well, unfortunately I've ruled that you will
sit down and any questions you have you give to Mr. Jackson.
THE DEFENDANT: Mr. Jackson is representing your interest.
He's not representing mine. He was employed by you and not employed by me.
He's being paid by the court and not being paid by me. I would like
defense assistance of my choice. I renew my motion for John Africa to
assist me in this matter.
THE COURT: That request is denied for the tenth time.
THE DEFENDANT: I'm not counting, Judge. It's important
and that's why I keep bringing it to your attention.
THE COURT: I know. You have and I've ruled. All right.
Let's call the next witness.
MR. McGILL: Bring in the jury.
Page 27.
THE COURT: Call your next witness please.
MR. McGILL: Yes, Ms. Priscilla Durham.
Q. Okay. After the defendant said that what if anything
or what were any other -- did you hear any responses from anybody?
A. I heard a police officer respond, "If he dies you
die."
Q. Ask Officer Bell to come in?
Can you come up here, Officer, please?
Can you identify this gentleman, this officer?
A. Yes, that was the officer.
MR. McGill: Would you identify yourself for the
record?
OFFICER BELL: Officer Gary Bell, Badge Number 1217, Sixth
District.
MR. McGILL: Thank you. You may leave.
- - - -
(Officer Bell excused.)
- - - -
BY MR. McGILL:
Q. Where was officer Bell when he said that?
A. He was within the area, you know, like to my right, I
believe.
Q. What happened after the defendant said that and
Page 30.
Durham - Direct
then Officer Bell responded in that way?
A. Well, I immediately left, went around the other side
to open up a door so they could bring Jamal through the other side.
Q. And then what happened?
A. When I opened the door and told the police officers
which way to bring him they were still, you know, trying to control him.
He again shouted, "Yeah, I shot the mother fucker and I hope the mother
fucker dies." And that's when he was brought into the Emergency Room, and
then I left the area.
Q. Okay. Now Officer Durham, you are familiar with the
Jefferson emergency area, waiting area rooms, are you not?
A. Yes.
Q. How long have you worked there?
A. Five years in December.
Q. Has the structure of the area, that is, the entrance
way to the Emergency Room, to the double doors where all this occurred,
has that structure physically changed at all?
A. No.
Q. Since December the ninth, 1981, to February the
Page 31.
Durham - Direct
fourth, 1982?
A. No.
Q. May I have those photographs, C-45 though C-51,
please?
I'm specifically now showing you C-43 -- and please show
this to the defense. I want to make sure they are aware of which one it
is.
MR. JACKSON: Yes.
BY MR. MCGILL:
Q. Can you identify what C-49 represents?
A. Yes. This is the area that I was talking about when
Mr. Jamal was placed and the double doors where I was standing behind the
door.
Q. Okay. Now, can you show that photograph to --
A. Okay. Mr. Jamal was placed here and I was on the other
side of those doors so we both simultaneously was on this mat at the same
time.
Q. What happens when you step on the mat?
A. The doors automatically open up from either side.
Q. Was he partially inside that area? If you can
recall.
A. When the doors opened he may have, you know --
Q. Okay. Now I'm showing you the sketch. This is
Page 32.
Durham - Direct
the sketch that has been testified to by Officer Roy Land
who took the same photograph. The sketch he says is -- shows an entrance
way where I'm indicating now, and I'm showing you C-43. This has been
testified to as a straight-on shot from here back.
A. Yes.
Q. Are you square now with what the sketch
represents?
A. Yes.
Q. Would you demonstrate, just put a "J" where this
occurred? Now you'll assume, say that you're also aware, assume that these
are the doors.
A. Right.
Q. Okay. Now you also said, Officer Durham, that after
the defendant said that, "I shot the MF'er and I hope he dies," and the
officer said, "If he dies you die," you then went to do something. Can you
show where you went.
A. Okay. It's off this area, naturally, but through these
doors and around. You walk through the nurses' station and you come around
on this side where there is another door leading to the emergency area
which is directly across from where Mr. Jamal was.
Page 33.
Durham - Direct
So I just went back through here and went around and came
up this side, because the door is locked from this side, you can't open it
from this side. So I had to go around the other side and open the
door.
Q. And did you open the door?
A. Yes, I did.
Q. And then you indicated that something else
happened?
A. Yes.
Q. Show us on the sketch approximately where it
happened.
A. Okay. As I stepped through this door, you know, to
alert the policemen to bring Mr. Jamal this way, you know, they were still
trying to control him. He again shouted, "Yeah, I shot the mother fucker
and I hope the mother fucker dies," and that's when they, you know, rushed
him through the doors.
Q. Okay. You may resume your seat. Do you know where he
then went after he left the doors? Did you pursue him?
A. Sure. I led them to the family room.
Q. And what was the reason for that? Why was he moved
initially?
Page 34.
Durham - Direct
A. Because he was standing right in the middle of the
treatment area. Officer Faulkner was -- well, he wasn't within eyesight of
him. All the police were around. He was in the immediate treatment area
within feet and I just felt that he should be out of that area.
MR. MCGILL: I see. Now I'm going to show you what has
been marked C-50 and C-51.
Mr. Jackson?
MR. JACKSON: All right.
BY MR. MCGILL:
Q. Can you identify what those photographs represent?
A. This photograph here, right behind here is a door
which is the door that I led Mr. Jamal through which is adjacent, in this
chart, is directly across which would be here. He was on the other side of
the cigarette machine where the double doors are.
Q. Okay. When you say --
A. This machine here, candy machine here, I'm sorry.
Here's the double doors and this was like so, so it would be across from
there.
Q. All right. Are you then saying that this photograph
represents this area?
Page 35.
Durham - Direct, Cross
A. Yes.
Q. And C-50 represents this area?
A. Yes.
Q. Oh, yes, by the way, Officer Durham, as a Jefferson
Hospital personnel are you employed as part of the Philadelphia Police
Department?
A. No. Just Jefferson University.
Q. Okay. You're employed and paid by the hospital,
right?
A. Yes.
MR. MCGILL: Cross-examine.
CROSS-EXAMINATION
BY MR. JACKSON:
Q. Officer Durham, how long have you been a security
officer?
A. Approximately eight to nine years.
Q. Prior to coming to Jefferson where were you a security
officer?
A. I was an inspector for Mohler Detective Agency, 66th
and Ogontz Avenue.
Q. Mohler is it?
A. M-O-H-L-E-R.
Q. Any other agency you worked for, ma'am?
Page 36.
Durham - Cross
A. I was a store detective for Bonwit Teller's.
Q. For how long?
A. Approximately eighteen months.
Q. Anywhere else, ma'am?
A. I was employed at the Blum Store.
Q. What capacity?
A. Store detective.
Q. By the way, let me back up. At Bonwit Teller did you
work for Bonwit Teller, or did you work for another organization?
A. Bonwit Teller's.
Q. At the Blum store did you work for the Blum Store?
A. Yes.
Q. Anywhere else, ma'am?
A. No.
Q. And how long at the Blum store?
A. Maybe six months, six to eight months.
Q. And where is that store located?
A. It was located at 13th and Chestnut.
Q. What police district is that?
A. Sixth District.
Q. And Bonwit Teller's is where?
Page 37.
Durham - Cross
A. Seventeenth and Chestnut.
Q. What police district is that?
A. Sixth District, also, I believe.
Q. So you had occasion to come in contact with the Sixth
District Police Department on a number of occasions, would it be fair to
say?
A. Yes.
Q. Did you know Officer Faulkner?
A. No, I did not. I --
Q. Did you --I'm sorry.
A. I've seen him several times.
Q. Where?
A. In the hospital.
Q. Speak to him before?
A. As a matter of fact, I had spoke to him about two
hours prior to his death.
Q. What did you talk about?
A. Officer Faulkner had just brought in a little
seven-year old, I believe she was a seven-year old black rape victim. He
apprehended the suspect.
Q. You saw him apprehend him --
MR. MCGILL: Excuse me? I did not hear that? May I have
that read back?
Page 38.
Durham - Cross
MR. JACKSON: No. It's inadmissible testimony. She's
talking about something that, I'm sure, she's been advised --
MR. MCGILL: I want to hear what she said.
MR. JACKSON: But she can't tell me what he did.
THE COURT: Go ahead.
MR. MCGILL: Well, can I have it read back?
MR. JACKSON: Your Honor, it's inadmissible so I object to
having it read back and I ask that it be stricken.
THE COURT: Then you better start asking individual
questions.
MR. MCGILL: Judge, may I ask that part that Your Honor
would find admissible read back?
THE COURT: Can you read back --
MR. JACKSON: Your Honor, can you read it back at sidebar?
If it's inadmissible you can hear it and then rule --
MR. MCGILL: She said she observed, and you asked, "What
were you talking about," and
Page 39.
Durham - Cross
she said she observed, apparently, when Officer Faulkner
came in two hours or something before then, and at that point she then
went on to say what occurred. I'm trying to find out what--
THE COURT: Come over here just a minute.
(A sidebar conference was held on the record as
follows:)
THE COURT: Just a minute. Don't get excited. Mr. Jackson,
you had asked her what she talked to Officer Faulkner about and now she's
telling you.
MR. JACKSON: He went out and arrested a rape suspect. She
didn't see him.
TUE COURT: He must have told her that.
MR. MCGILL: Let's read it back, Judge.
MR. JACKSON: Well, let's read it.
THE COURT: He told her that.
MR. JACKSON: She didn't say that.
THE COURT: Then read it back.
MR. MCGILL: Wait a minute. Wait a minute, Judge. If she
says something and he's afraid --
Page 40.
Durham - Cross
THE COURT: Just a minute.
MR. JACKSON: I'll start all over again. You don't have to
read it back.
MR. MCGILL: I want it read back.
MR. JACKSON: Well, I'm withdrawing the question and if he
asks it on redirect, let him do that.
THE COURT: All right. What does it say?
MR. MCGILL: I can't understand why something was said and
all of a sudden I can't hear --
MR. JACKSON: You can hear. Go ahead. I'm sorry.
THE COURT: Read it back.
(The following was read back by the reporter as
follows:)
"Answer: Officer Faulkner had just brought in a little
seven year old, I believe she was a seven year old black rape victim. He
apprehended the suspect."
MR. MCGILL: She saw him bringing him in. It's not a
question of hearsay.
Page 41.
Durham - Cross
MR. JACKSON: The seven-year old victim --
THE: COURT: We don't know. You have to ask her.
MR. JACKSON: I asked her if she saw it and she said,
"No."
MR. MCGILL: Wait a minute. Let me finish. It's not
inadmissible what she observed.
THE COURT: I know that.
MR. MCGILL: And she expressed what she observed. That's
why I wanted it read back. Secondly, she then said that he had apprehended
a suspect. The question is, "What were they talking about?"
THE COURT: Sure. That's why I wanted to know what they
were saying.
MR. MCGILL: It's not inadmissible.
THE COURT: Of course not.
MR. MCGILL: You asked her what they were talking
about.
MR. JACKSON: Fine.
THE COURT: Okay.
(Sidebar conference ended.)
Page 42.
Durham - Cross
BY MR. JACKSON:
Q. Officer Durham --
MR. MCGILL: Is the question withdrawn?
MR. JACKSON: Yes, it is.
THE COURT: No, the question is not withdrawn. The
question and answer stand.
MR. MCGILL: May I question about it on redirect, sir?
THE COURT: Ask what you want.
MR. MCGILL: Thank you.
BY MR. JACKSON:
Q. Officer Durham, did you observe Officer Faulkner make
the arrest?
A. No, I didn't observe him make the arrest but I
observed him bringing his suspect to the hospital.
Q. Do you know about what time it was?
A. No, I don't.
Q. You said it was about two hours before he was brought
back; is that right?
A. Yes.
Q. Now, when he came in on that earlier occasion did he
come in with anyone else other than the suspect?
A. Yes.
Page 43.
Durham - Cross
Q. Who else?
A. I Believe it was the victim, it was a relative of the
victim.
Q. Any other police officers?
A. No.
Q. Now, you indicated that you've seen Officer Faulkner a
number of times; is that correct?
A. Yes.
Q. Would that be related to your occupation at Jefferson
Hospital?
A. Yes.
Q. He's been to the hospital a number of times?
A. Yes.
Q. You've talked to him a number of times?
A. Yes.
Q. And sometimes you've talked to him about things other
than your work; is that true?
A. Not normally.
Q. Well, you talked about your work at night?
A. Yes.
Q. And what specifically -- strike that. On those
occasions when you spoke to him when he visited the hospital how long did
those conversations
Page 44.
Durham - Cross
last?
A. It depended, you know, it depended on the nature of
what we were talking about. It depended on whether or not he was drinking
coffee, or he was going to get coffee. I mean we had no -- we didn't hold
long conversations. We never timed them.
Q. Did you work shift work, ma'am?
A. No.
Q. So you worked steady twelve to eight or eleven to
seven?
A. Yes.
Q. Would it be fair that the police you came in contact
with at Jefferson Hospital were by and large from the Sixth District?
A. No, because Jefferson is a rape center as well and we
get police from wherever rapes occur.
Q. Fine. But other than on rape cases: ma'am?
A. Yes.
Q. They had been solely and exclusively the Sixth
District; is that correct?
A. Yes.
Q. How often did you have occasion to see and speak to
officers from the Sixth Police District?
Page 45
Durham - Cross
A. I am a security officer. If I have an arrest the
Philadelphia Police have to come and take my prisoner. So I mean, we're
talking about maybe six days a week.
Q. Once a day?
A. Once a day, twice a day. It all depends on, you know
--
Q. And you give statements to the Philadelphia Police
Department?
A. Yes.
Q. When did you let the police or the District Attorney
know about what you've just testified to?
A. When you say what I just testified to --
Q. Yes. When did you let the police know that you heard
Mr. Jamal say, "Yeah, I shot him and I hope he dies?" Let me ask you this
way: isn't it a fact that you didn't tell them until sometime in
March?
A. You asking me about the Police Department now,
right?
Q. Police Department or the District Attorney, yes,
ma'am.
A. Okay. Yes, I did not talk to the District Attorney's
office until -- what was it? -- February or
Page 46.
Durham - Cross
whenever.
Q. Did you try to contact them before?
A. No.
Q. This incident happened in December, right?
A. Yes.
Q. You saw police after that, didn't you?
A. Yes.
Q. And you saw police in January, didn't you?
A. Yes.
Q. And you saw police in February, didn't you?
A. Maybe not. I was out or work.
Q. You were what?
A. I was out of work.
Q. The entire month of February?
A. You said -- I'm not sure of the dates but I was out of
work for about six weeks, six to eight weeks from December up until the
time that I was questioned.
Q. And was anyone looking for you? Did you get a notice
from the police that the District Attorney was looking for you?
A. No.
Q. You hadn't initiated any effort to let them know that
you heard that; is that right?
Page 47.
Durham - Cross
A. No. I had already given a statement.
Q. To whom?
A. Jefferson investigators.
Q. When did you give that?
A. The very next day.
MR. JACKSON: Your Honor, I'd like a copy of that
statement and I'd ask that before I proceed with my cross-examination I
get a copy of the statement.
MR. McGILL: I would be -- I've never seen one, Your
Honor. It's Jefferson Hospital material. I would be very glad to have it
brought over.
THE COURT: You can proceed with cross and we'll make
arrangements to see if you can.
MR. JACKSON: Your Honor, obviously the contents of the
statement is going to impact on my cross-examination.
THE COURT: Cross-examine her about something else. You
call her later on.
MR. MCGILL: She'll be available. I'll try to get it now,
Judge. May I find out where it is?
Page 48.
Durham - Cross
Page 51.
Durham - Cross
talk to you about Mr. Jamal being beaten by the
police?
MR. McGILL: Objection, Your Honor. That assumes that it
occurred.
THE COURT: You have to rephrase it. Ask the witness.
BY MR. JACKSON:
Q. Didn't you know that the officer wanted to talk to you
about the complaint that Mr. Jamal made relative to a beating?
A. Now let me see if I -- are you asking me did I know
this prior to me talking to Internal Affairs?
Q. No.
A. Or at that moment?
Q. At that moment?
A. Sure. They let me know what they wanted when they got
me.
Q. So when you said that you assumed that they were
calling you or contacting you about your statement to Bartelli you were
incorrect; is that right?
A. Yes. I didn't know whether he had given them the
statement or not. You know, I just gave it to him.
Q. Now, did you ever tell the police that you gave a
statement to Bartelli?
Page 52.
Durham - Cross
A. No.
Q. So that as far as you knew -- strike that. Do you know
at this point what, in fact, Bartelli did with the statement that you
gave?
A. No, I do not.
Q. Was it a written statement?
A. No. I believe I just dictated it to him.
Q. You just dictated it to him?
A. Yes.
Q. And he took it down?
A. Yes, and I think I signed it.
Q. You think? Okay. Do you know what happened to the
statement?
A. No, I do not.
Q. Have you said -- did you read the statement after
giving it?
A. Yes.
Q. And it was true?
A. Yes.
Q. And you're saying that the substance of the statement
is the very same that you've testified here today?
A. Yes.
Page 53.
Durham - Cross
Q. Now back to this night on December the 9th, you've
indicated that you first heard Mr. Jamal before you saw him; is that
correct?
A. Yes.
Q. And he was on the lobby side of the automatic
doors?
A. Yes.
Q. And you were on the other side?
A. Yes.
Q. Now, you heard a voice say -- correct me if I'm wrong
-- -Yeah, I shot the mother fucker and I hope he dies?"
A. Yes.
Q. Now that was in response to a question. Did you hear
the question?
MR. MCGILL: Objection, Your Honor. He's not testifying.
She said no such question that was in response to.
THE COURT: Let the witness answer the question.
MR. JACKSON: Fine.
BY MR. JACKSON:
Q. Did you hear any voice or any noise or anything
Page 54.
Durham - Cross
at all before you heard his voice?
A. No, I did not.
Q. You didn't hear him fall or be placed on the
floor?
A. No, I did not.
Q. You didn't hear any police officers muttering or doing
anything at all?
A. There was mass confusion in that area. There was a lot
of things going on. I didn't really know what was going on until I heard
him make that statement.
Q. And that is the only thing that you heard?
A. Other than I heard the officer say, "If he dies you
die?"
Q. No. ma'am. Before that.
A. No.
Q. So the first thing that you heard relevant to Mr.
Jamal was, "Yeah, I shot the mother fucker and I hope he dies?".
A. Yes.
Q. Did you assume that that was in reference or in
response to a question?
MR. MCGILL: Objection, assumption.
THE COURT: I sustain that.
Page 55.
Durham - Cross
BY MR. JACKSON:
Q. Do you know if that was in response to a question?
A. No.
Q. You don't know?
A. No.
Q. Didn't it seem reasonable that it was in response to a
question?
MR. MCGILL: Objection.
THE WITNESS: No.
THE COURT: Sustained.
BY MR. JACKSON:
Q. All right, ma'am. Now, that was the first thing that
you heard and after hearing that then the doors opened up?
A. No. The doors were open then.
Q. I thought you said that you heard his voice but didn't
see him?
A. I didn't. I never saw him until I looked down. I was
on one side of the door; he was on the other side of the door.
Simultaneously me and Jamal arrived on the mat. When the door opened there
he was and that's when I heard --
Page 56.
Durham - Cross
Q. And how was he on the floor, ma'am?
A. How was he? Stretched out on the floor. The police had
his arms, they had his legs, they were trying to control him.
Q. Was -- I'm sorry. Go on. Okay. Was he on his back or
on his stomach?
A. He was on his back.
Q. So that his head was facing you and his feet were
facing away from you?
A. Yes.
Q. Did you see whether in fact he was bleeding?
A. No, sir.
Q. And you say simultaneously you were on the mat and he
was on the mat and you heard what he said at the same time; is that
right?
A. Yes.
Q. How many police officers were around?
A. That's all that was around was police officers. I
could tell you fifty, a hundred and still be wrong. I don't know.
Q. Well --
A. It was a lot of -- I mean the place was crowded with
police, the waiting area inside -- I don't know.
Page 57.
Durham - Cross
Q. With regard to Mr. Jamal, in the immediate area of Mr.
Jamal, how many police officers?
MR. MCGILL: I have to object. At the time the statement
was made, or before...or after?
MR. JACKSON: Yes, at the time of the statement. That's
right.
THE WITNESS: I don't know.
BY MR. JACKSON:
Q. You can't estimate for us, ma'am?
A. Fifteen, twenty.
Q. What were they doing?
A. They were trying to control their prisoner.
Q. No. Tell us what they were doing.
A. Sir, I don't know. When the doors opened Mr. Jamal was
hollering, the police was hollering. I immediately left this area.
Q. All right.
A. Now I don't know what they were doing. One was holding
his legs, somebody has his arms; they were trying to control their
prisoner. I did not stand there and watch and see what they did.
Q. I didn't ask you whether you stood there and
Page 58.
Durham - Cross
watched what they did, ma'am.
A. I'm trying to let you know.
Q. Would you wait for my question?
MR. MCGILL: Objection. Let her finish.
THE COURT: Just --
MR. JACKSON: Your Honor --
THE COURT: -- Let her answer. Don't argue, please.
BY MR. JACKSON:
Q. The question is: What did you see them do? I don't
want you to tell me they controlled him. I want you to tell us what they
actually did, what you saw them do to him.
A. I didn't see them do anything. I was there for a
moment and I was gone.
Q. Now, you said that you heard Mr. Jamal holler. What
kind of hollering?
A. I mean he was thrashing and he was making noises.
Q. What kind of noises?
A. He was fighting the police.
Q. What kind of noises?
A. For a moment what I could hear -- I didn't hear
Page 59.
Durham - Cross
what he was saying.
Q. Officer Durham, I wasn't there. I want you to tell us
as best you can recall what the noise was.
A. I don't know what he was doing.
Q. Was it screaming noise?
A. No it wasn't screaming. It wasn't noises like that. He
was, you know, -- what can I say? When you be in custody by the police,
you know, you're uncontrollable, you're saying things, and the whole time
--- like I said, I was there only for a moment. When I realized what was
happening I just got out of the area.
Q. You are saying he was uncontrollable and he was
screaming and hollering: is that right?
A. Yes.
Q. You knew he was out of control: is that right?
A. Yes.
Q. And you saw a police officer on his legs and on his
hands or on both of his arms: is that right?
A. Yes.
Q. And there were about fifteen officers surrounding him,
but you don't know specifically what they were doing?
A. Well, I'm not going to say that there was fifteen
Page 60.
Durham - Cross
officers. There were fifteen, maybe, officers around but
not necessarily fifteen officers dealing with Mr. Jamal.
Q. Okay. Now, wasn't his hands tied, didn't he have his
hands in handcuffs?
A. Yeah, he had his hands in handcuffs but they was
underneath his back, so officers had him around the shoulder, you know, in
his forearms.
Q. So he wasn't doing anything with his forearms and his
hands --
A. Right.
Q. -- his hands were behind his back?
Q. When you say he was thrashing around with his arms
--
A. You know, when you're laying back you can move like
this and you have your feet --
Q. I understand that. One officer had his foot and one
the other leg and he was hitting them with his elbow?
A. The officers were controlling their prisoner. I didn't
stay there long enough. They had just brought the man into the emergency
area, number one.
Q. Why did they need -- strike that.
Page 61.
Durham - Cross
Did you see a need for them to control him?
A. Yes.
Q. Because he was handcuffed and his hands behind his
back and he was on the floor shot?
A. He wasn't controllable.
Q. What do you mean by that?
A. What do I mean? If they had just let him lay there I
could see from the way that he was there he would have been all over the
area. Even though you're handcuffed and you're laying down you still have
a great deal of mobility.
Q. How?
A. Easily.
Q. Tell me, ma'am.
A. You have your legs, you can move around.
Q. So you stood there long enough to make that
determination?
A. No. I made that determination from being a security
officer observing handcuffed prisoners.
Q. Who are shot in the chest and on the floor on their
back?
A. (No response)
Q. How many times have you seen prisoners handcuffed
Page 62.
Durham - Cross
with arms behind their back, shot in the chest and with
fifteen officers around?
A. I never seen prisoners handcuffed and hands in the
back and shot in the chest acting like that, either.
Q. Have you seen any?
A. No.
Q. This is the first time?
A. Yes.
Q. So you have no experience and that's an estimate on
your part, isn't it?
A. I would think that anybody that would be shot would be
trying to get some help and not the way he was acting.
Q. Have you been shot, ma'am?
A. No.
MR. MCGILL: Objection, Your Honor.
THE COURT: Sustained.
BY MR. JACKSON:
Q. Now, when the door opened and Mr. Jamal was there were
there any officers between you and Mr. Jamal?
A. No.
Q. Did you see any weapons or anything in any of the
officers' hands?
Page 63.
Durham - Cross
A. No.
Q. You didn't see any, or you didn't see the hands?
A. I didn't see everybody's hands.
Q. Did you see whether any of the officers were kicking
him?
A. No.
Q. You didn't see it?
A. No.
Q. How close were these officers to him aside from those
that were holding on each of his limbs?
A. How close were the other officers close to him?
Q. Yes, ma'am.
A. Well, if you got one man behind another man how close
is that?
Q. I don't know.
A. Well, that's as close as it is.
Q. Now, you indicated that later on you heard him say
that again, right?
A. Yes.
Q. And he said, again, "Yeah, I shot the mother fucker
and I hope he dies?"
A. Yes. And that's all? You didn't hear anybody else
Page 64.
Durham - Cross
say anything, did you, other than, "If he dies, you
die?"
A. Yes.
Q. You Didn't hear any other officers say anything at
all?
A. No.
Q. Are you saying that they didn't say it, or that you
didn't hear it?
A. I didn't hear it.
Q. Now, the second time that you heard him make the
second statement where were you at that point?
A. Do you want me to show you on the chart, or tell
you?
Q. Okay.
A. I was directly across from the area where the double
doors are.
Q. So you would have been near the receiving desk?
A. Yes.
Q. And where was Mr. Jamal at that time?
MR. MCGILL: I would object to that. I think that's too
general and vague, "near the receiving desk." Perhaps Miss Durham, can
show us where.
Page 65.
Durham - Cross
THE COURT: If he wants to.
MR. JACKSON: Your Honor, why is Mr. McGill telling me how
to conduct my cross-examination?
THE COURT: You can go into that.
MR. McGILL: Yes, sir.
MR. JACKSON: Thank you.
BY: JACKSON:
Q. Now again. Miss Durham, you were across that doorway
that you opened up, is that right?
A. Yes.
Q. Fine. And where was Mr. Jamal?
A. He was still at the double doors.
Q. Still on the floor?
A. Yes.
Q. Still on his back?
A. I don't know.
Q. Couldn't see him?
A. No.
Q. Could you see the officers?
A. Yes.
Q. Could you see what they were doing?
A. No.
Page 66.
Durham - Cross
Q. Could you see what Mr. Jamal was doing?
A. No.
Q. And you, of course, have no idea at all what was
happening to Mr. Jamal during the time that you walked from that double
door around from the treatment area and to the opposite side?
A. No.
Q. Did you hear Mr. Jamal ho1ler or scream during that
period of time?
A. No.
Q. If in fact there was noise or hollering or screaming
could you hear it from where you were?
A. No.
Q. So it was not until you opened the door again that you
could hear any noise that was out in the lobby area?
A. Right.
Q. And after you opened that door you then indicated that
they picked him up?
A. Yes.
Q. And they dragged him, or they brought him over?
A. Yes.
Q. And they went through the room and took him to
Page 67.
Durham - Cross
a treatment area?
A. To a family room, yes.
Q. What's a family room, ma'am?
A. It's a room where they usually keep families of
waiting -- you know, for people waiting for medical treatment.
Q. They didn't take him to a treatment room right
away?
A. Well, no, they didn't.
Q. Were there treatment rooms available?
A. Yes.
Q. But nevertheless they took him to the family room.
After they took him to the family room is that when you heard the officer
say, "If he dies you die?"
A. No.
Q. When was it?
A. When they was at the double doors.
Q. Before you went around --
A. Before I went around.
Q. Okay. And that was Officer Gary Bell. Let me go back
to that, if you don't mind, for a second. You heard Mr. Jamal say what he
said and you saw what you saw. Where was this officer at when he told Mr.
Jamal,
Page 68.
Durham - Cross
"If he dies you die?"
A. He was to my right. So I'm standing on the mat, I'm
standing right here in these double doors.
Q. Show it to the jury, ma'am. Go ahead.
A. I'm standing right here and on this side of the double
doors, and Officer Bell was somewhere in this area to my right, and Mr.
Jamal, he was approximately in this area here.
Q. So how close was Officer Bell to Mr. Jamal?
A. He wasn't really close to him at all.
Q. Now, by the way, did you know if Mr. Jamal was
injured?
A. No, I did not.
Q. So you didn't have any idea at all why they would
bring him to the hospital?
A. No.
Q. Then why did you go around and open the doors?
A. Because the officers were hollering at me where could
they put him at.
Q. So you did hear them say something.
MR. MCGILL: Objection. May she finish her answer?
THE COURT: Please let the witness
Page 69.
Durham - Cross
answer her question.
MR. JACKSON: My apologies to the officer. Go on. My
apologies to you.
THE WITNESS: I had testified earlier that I heard an
officer ask me around the same time that Officer Bell was stating, "If he
dies you die," an officer was asking me where could they put Mr. Jamal.
And that was my reason for leaving the area and going to open the other
door.
BY MR. JACKSON:
Q. Anything else you recall them saying other than
Officer Bell saying what he was saying and the other officer asking you
where they could put Mr. Jamal?
A. No.
Q. And when the other officer asked you where could they
put Mr. Jamal you weren't thinking that Mr. Jamal was a patient?
A. No.
Q. And did you recommend the family room?
A. Yes.
Q. Do they normally bring prisoners to the hospital?
Page 70.
Durham - Cross
A. Yes.
Q. When they're uninjured?
A. Yes.
Q. Bring them in for identification purposes, right?
A. Yes.
Q. Was Officer Faulkner conscious at any time?
A. No.
Q. So he couldn't make any identification, could he?
A. No.
Q. Officer Faulkner was at the hospital first; was he
not?
A. Yes.
Q. And you saw him when he was brought in?
A. No.
Q. But you knew that he was in there before Mr. Jamal; is
that right?
A. Oh, yes.
Q. And before Mr. Jamal arrived at the hospital, were you
advised by any of the police officers as to who it may have been that shot
the officer?
A. No.
Page 71.
Durham - Cross
Q. They never told you anything at all?
A. No.
Q. All they told you was that he was shot?
A. Yes.
Q. Did you ask any questions?
A. No.
Q. When he was in, Mr. Jamal was in, the family room, how
long was he in the family room?
A. I'd say maybe less than five minutes, long enough for
me to go get some medical personnel, somebody to know that he was back
there.
Q. Did you know then after he was in the family room that
he was injured?
A. Mrs. Keating came out and said he was injured,
yes.
Q. Mrs. --
A. Keating.
Q. Who's Mrs. Keating?
A. Nurses' supervisor.
Q. She came out and told you that?
A. No, she didn't necessarily come out and tell me.
Q. I just want to know how she came in contact with Mr.
Jamal.
Page 72.
Durham - Cross
A. Well, I don't know how she came in contact with Mr.
Jamal. The only thing I know is when I came out of the room Mrs. Keating
and somebody else was on the way, which I was on my way to get them,
anyway. They went into the room and came out, and that's when Mrs. Keating
said that they had to get Mr. Jamal to the treatment area because he was
shot.
Q. Now, when Mr. Jamal was in the family room he was on
his back then as well?
A. I don't know.
Q. You didn't see him at all?
A. Oh, no.
Q. But I mean you just saw them bringing him in the
room?
A. Yes.
Q. And when they brought him in the room you immediately
left?
A. I never went in the room. I just showed them where the
room was at.
Q. Now, did you see them take him to a treatment
area?
A. Yes.
Q. How did they take him?
Page 73.
Durham - Cross
A. They drug him.
Q. They drug him. By the way, when you opened the door to
the family room and he was on the other side of the room how did they get
him from the other side of the room to the family room?
A. They lift him up. They tried to walk him but he wasn't
walking.
Q. Wasn't walking?
A. You know, they pulled him to the back of the area.
Q. How did they pull him?
A. By his arms.
Q. And where were his feet?
A. His feet was on the floor.
Q. So they were dragging his feet?
A. Yes.
Q. And when they took him to the treatment area they
didn't take him on a stretcher?
A. No.
Q. You have stretchers and wheel chairs in the
hospital?
A. Yes.
Q. Were they right there in the emergency area?
Page 74.
Durham - Cross
A. Yes.
Q. Did anyone ask you for either one of them?
A. No.
Q. Did anyone use any of them?
A. No.
Q. When Officer Faulkner was brought into the hospital
did you see him brought in?
A. No.
Q. Do you know a Dr. Rita Cudemo?
A. Yes.
Q. Do you recall seeing Dr. Rita Cudemo that evening?
A. Yes.
Q. Do you recall seeing her in the lobby of the waiting
room of the Emergency Room?
A. No.
Q. Do you recall specifically where you may have seen her
or if you saw her at or about the time Mr. Jamal was brought into the
hospital?
A. No, I do not.
Q. The area where Dr. Cudemo works, could you just -- is
it on that diagram, or could you point it out?
A. No.
Page 75.
Durham - Cross
MR. JACKSON: It's not. Okay.
(A discussion was held off the record.)
MR. JACKSON:
Your Honor, may I have your indulgence, please?
(A discussion was held off the record.)
BY MR. JACKSON:
Q. By the way, did you know Mr. Jamal before that
evening?
A. No.
Q. Did you see his brother William Cook?
A. No.
Q. And you hadn't known Officer Bel1, as well; is that
correct, or did you know Officer Bell?
A. No.
Q. That evening was the first time you had seen him?
A. I seen him but I don't know him.
Q. You had seen him before. Did you see him before that
evening, I mean earlier that evening?
A. No.
Q. Seen him a number of times at the hospital?
A. Yes.
Q. About as often as you saw Officer Faulkner?
Page 76.
Durham - Cross
A. Yes.
Q. So you didn't know Officer Faulkner any more than you
knew Officer Bell?
A. No.
Q. Did you talk to Officer Bell, as well, a number of
times? Is that right?
A. Yes.
Q. About the same kind of things you talked about with
Officer Faulkner?
A. Yes.
Q. Were they partners?
A. I don't know.
Q. Did you see them together when you saw them?
A. When you say together you mean they walk into the
hospital together, they leave together?
Q. Well, no.
A. I mean --
Q. Generally being in the hospital about the same
time.
A. No. Well, I can't answer that.
Q. By the way, ma'am, were you advised or told by one of
your supervising officers to assist the police?
A. No.
Page 77.
Durham - Cross
Q. You just acted on your own?
A. No.
Q. Why did you do what you did?
A. Well, my job in the Emergency Department that night
was to assist whoever, be it the Police Department, Jefferson employees,
you know, whatever, whatever. Where you can be used then you be, you know,
you're there.
Q. That --
A. I was not assigned to the Police Department that
night.
Q. No. I understand that. Ma'am, I'm not asking that.
First of all, were you assigned to the Emergency Room that night?
A. No.
Q. So then where were you assigned that night?
A. I'm a patrolman. I have the whole building.
Q. So you were told by someone, I assume --
A. Yes.
Q. -- to go there.
A. Yes.
Q. Who was that?
A. Lieutenant Williams.
Q. So that was the supervisor?
Page 78.
Durham - Cross
A. Yes.
Q. So you were told to go there?
A. Yes.
Q. How much earlier than you arrived were you told to go
there?
A. (No response.)
Q. How long were you in that emergency area before you
saw Mr. Jamal?
A. Oh, I had been in there, I guess, about maybe
forty-five minutes or so.
Q. Forty-five minutes?
A. I'm not sure. Anywhere from a half-hour to forty-five
minutes.
Q. Do you know if that was before, or after Officer
Faulkner arrived?
A. After.
Q. So then you're saying that Mr. Jamal would have
arrived half an hour or forty-five minutes after Officer Faulkner?
A. No, I'm not saying that. You asking me -- what was the
original question?
Q. Okay. I wanted to know, first of all, how long --
maybe I'm confused -- how long you were in the Emergency
Page 79.
Durham - Cross
Room before you saw Mr. Jamal.
A. Maybe a half-hour, forty-five minutes.
Q. Now, how long were you in the Emergency Room before
you knew that Officer Faulkner was brought in? If you know.
A. Approximately the same length of time.
Q. So you're saying that they came in about the same
time.
A. No. I'm saying maybe a half-hour, forty-five minutes
later is when Mr. Jamal was brought in.
Q. Okay. Half-hour or so after the officer.
A. Yes.
Q. Now, do you prepare any kind of reports? I mean, do
you have a log or something that you prepare or you write while you're
patrolling?
A. No.
Q. You don't clock in anywhere or anything?
A. No.
Q. So there'd be no reason for you to know any of the
exact times that you were at any place in particular; is that right?
A. Right. Only if an incident comes up and I have to fill
out an incident report is when I'm required to
Page 80.
Durham - Cross
know times.
Q. Okay. Did you prepare an incident report for this
evening?
A. I didn't have to.
Q. When you say you didn't have to, is that because this
was not out of the ordinary?
A. Well, it wasn't a hospital -- you know, it was just an
emergency problem. That wasn't a security problem.
Q. Now ma'am, do you recall whether in fact at any time
that you saw Mr. Jamal in that hospital that you saw an injury to his
head?
A. No.
Q. Did you see any blood on or about him anywhere?
A. No.
Q. Nowhere?
A. No.
Q. How close did you get to Mr. Jamal the first time? And
I believe you said he was right in front of you but just so we'll know
approximately.
A. I was on him. I was on top of his -- his head was at
my feet.
Q. Right on top?
Page 81.
Durham - Cross
A. Yes.
Q. Okay. And when they brought him to the family room did
they bring him by you?
A. No, because I was in front of them and then --
Q. Okay. And then you saw them take him from the family
room to the treatment room?
A. Well, not all the way. I just, you know, seen him when
they went in to get him and they started out and I went somewhere else. I
didn't see him go to the treatment area.
Q. Now you're still employed at Jefferson Hospital,
ma'am?
A. Yes, I am.
Q. Same capacity?
A. Yes.
Q. Same shift?
A. Yes.
Q. Same responsibilities?
A. Yes.
MR. JACKSON: No further questions.
THE COURT: Can we take five?
MR. MCGILL: Miss Durham --
MR. JACKSON: Just a moment, please. I
Page 82.
Durham - Cross
just have one.
BY MR. JACKSON:
Q. The words that Officer Bell spoke, "If he dies you
die," you're certain he said that?
A. Yes.
Q. It couldn't have been any other officer?
A. No.
Q. And could you tell us how it is that you remember
those words so precisely?
A. Because Officer Bell was very upset behind Officer
Faulkner. We had all been in the area around Officer Faulkner, me and him.
That's how we arrived at the area, almost the same time because we were
just like walking around, you know. So that's how I know it was him,
because we was practically together except he was into his thing and I was
into mine.
Q. Now, he couldn't have used any other words,
though?
A. Yeah, he could have.
Q. So you're saying that he said that but you don't know
that he said that?
A. No. I'm sure that's what it was, "If he dies you
die."
Page 83.
Durham - Cross
Q. You're sure?
A. I'm sure.
Q. And what if anything was Officer Bell doing when he
was talking to Mr. Jamal?
A. Probably trying to get around another officer, because
the area was just crowded. He couldn't --
Q. You say probably trying to get around him?
A. Yeah, because he was on my right and neither one of us
could get around four police officers. This area --
Q. But you're saying he was trying to get around.
A. I'm saying initially we were on our way out of the
area, that's how we happened to get going that way. So I'm saying --
you're asking me what was Officer Bell trying to do. I imagine he was
trying to get out of the area, and we both happened to run across Mr.
Jamal being there.
Q. But when he said that to Mr. Jamal what did you see
him, other than speak the words, what did you see him do with his
hands?
A. I didn't see him do anything.
Q. Nothing at all?
A. No.
Q. Did he have anything in his hands?
Page 84.
Durham - Cross
A. I didn't see his hands.
Q. Did you see his feet?
A. No, I did not.
Q. You don't know what his feet did or what his hands
did?
A. No.
MR. JACKSON: No further questions.
THE COURT: Can we take a five-minute recess?
(A short recess was taken.)
PRISCILLA DURHAM, resumed.
(The following took place in open Court in the presence of
the jury:).
THE COURT: Mr. McGill?
MR. McGILL: It may be appropriate to have the jury out
for a moment.
THE COURT: All right.
(The following took place in open out of the presence of
the jury:)
THE COURT: What's the problem?
MR. MCGILL: Maybe Mr. Jackson can tell us. I assume Mr.
Jamal, the defendant in this
Page 85.
case, was about to say something.
THE COURT: Is he?
MR. JACKSON: I don't know, Your Honor. He hadn't
indicated to me that he was, sir. I do not know.
THE COURT: Do you want to say something or are you going
to stand up, or what are you going to do?
THE DEFENDANT: (No response.)
THE COURT: Well, he's not saying anything so I assume
he's not going to behave himself.
MR. MCGILL: Yes, sir.
THE COURT: You realize if you interrupt in front of this
jury I'm going to have to remove you again.
THE DEFENDANT: Judge, you can remove me again and again
and again and again and again and again. I am going to point out to you
what is important to me; that this is my trial; that this man is your
employee, not mine; that he is functioning for the court system, not for
me; he is not doing what I am telling him and directing
Page 86.
him to do but what you are ordering him to do. So I
choose to sit down because you can hear me from the seat.
THE COURT: Okay.
THE DEFENDANT: I am protesting his appointment, his
continuing functioning here. I wish for him to be withdrawn
immediately.
THE COURT: Denied.
THE DEFENDANT: And I would like to have John Africa
appointed to assist me in this matter.
THE COURT: Denied.
THE DEFENDANT: Judge, you can call the jury in and I
don't care if they hear it, frankly, because it's the truth.
THE COURT: You mean you're going to make some statements
in front of the jury?
THE DEFENDANT: Well, I had planned to defend my life in
front of the jury. I plan to represent myself in front of the jury. I plan
to cross-examine witnesses in front of the jury. I plan to make a closing
statement and argument in front of the jury. But obviously you have
Page 87.
other plans.
THE COURT: In other words, you're telling me if I bring
the jury in you're going to stand up and start making statements in front
of the jury?
THE DEFENDANT: I didn't say that at all, Judge. I told
you what I plan to do.
THE COURT: Okay. We'll bring the jury in and we'll play
it by ear. Like I told you before, if you act up --
THE DEFENDANT: Judge, I'm not acting up. I'm not acting
at all. I'm telling you the truth.
THE COURT: All right.
THE DEFENDANT: Judge, that doesn't mean anything, that
threat about removing me.
THE COURT: I know it doesn't.
THE DEFENDANT: Well then, you need to stop saying it,
then.
THE COURT: Okay. I have to let you know I am going to do
this.
THE DEFENDANT: Okay.
THE COURT: All right.
Page 88.
THE DEFENDANT: For the record, I would like to have
Anthony Jackson withdrawn from this case. He would like to be withdrawn
from this case. I would like to have John Africa appointed in my
assistance in defense of this trial.
THE COURT: Denied again.
THE DEFENDANT: I would like to cross-examine that
witness, Judge.
THE COURT: Denied.
THE DEFENDANT: I'd like to ask her several questions.
THE COURT: Denied. Give your questions to Mr.
Jackson.
THE DEFENDANT: I don't want to give them to Mr.
Jackson.
THE COURT: Fine.
THE DEFENDANT: He's your employee and not mine, and I'd
like to ask those questions whether you deny it or not.
THE COURT: Denied.
THE DEFENDANT: Miss Durham, why did you wait until
February the 2nd to give your,
Page 89.
statement?
THE COURT: Okay. Remember what I told you.
THE DEFENDANT: Miss Durham --
(The following took place in open court in the presence of
the jury:)
THE COURT: All right. Hold up the jurors.
(The following took place in open court out of the
presence of the jury:)
MR. McGILL: Before the jury goes can I ask Miss Durham
one question before he --
THE COURT: He's not going to let you.
THE DEFENDANT: Miss Durham, why did you wait until
February the 2nd to make your statement?
THE COURT: Okay. Mr. Jamal, it is obvious to the Court
that you intend to disrupt the proceedings in front of the jury.
THE DEFENDANT: I am not disrupting. It's obvious I intend
to defend myself.
THE COURT: And once again I am removing you from the
courtroom.
Page 90.
THE DEFENDANT: It's obvious, Judge, that I am defending
myself.
MR. MCGILL: Judge --
THE COURT: Let the record indicate that the jury was in,
practically sitting in their first seats here, when he started asking
questions. That's why I sent the jury out immediately. I knew what he was
going to do and I just wanted to put it on the record. What's your
problem?
THE DEFENDANT: Let the record reflect I'm defending
myself; that I want John Africa to assist me in this matter --
MR. MCGILL: May I request --
THE DEFENDANT: -- and Anthony Jackson represents the
Court's wishes, and not mine.
MR. McGILL: Your Honor --
THE DEFENDANT: He wants what you want done and not what I
want done. I want appeals filed immediately.
MR. MCGILL: Your Honor, may I request that the defendant
be held back there for a moment until Miss Durham can be asked
specifically
Page 91.
to point the defendant out. She's been using the name --
not using the name defendant but Jamal, and I would like him to do
that.
THE COURT: Hold him back there. You should have done this
before.
MR. MCGILL: I recognize that but it's necessary.
THE COURT: It may not he that necessary. It's quite
obvious who she's referring to.
THE DEFENDANT: It's obvious what you're doing, Sabo.
(The defendant was removed from the courtroom.)
THE: COURT: You can ask her if the gentleman was seated
there. If he was the one --
MR. McGILL: He could do that.
THE COURT: I know we're going to have trouble getting him
back in the courtroom.
MR. McGILL: If he's right hack there --
THE COURT: No, I don't want the jury to know that he's
coming out of there. That's my problem.
Page 92.
MR. MCGILL: Well, he could stay there.
THE COURT: I don't want to keep moving them in and out.
Come here, I want to see you.
(A sidebar conference was held on the record as
follows:)
THE COURT: Once again I'm going to ask Mr. Jackson if he
wants me to in anyway give any cautionary instructions or --
MR. JACKSON: I think, again, Your Honor --
THE COURT: Once again?
MR. JACKSON: I think that even if it happens a hundred
times I think at any point to stop doing it is likely to signal
something.
THE COURT: Yes.
MR. JACKSON: And I know it's --
THE COURT: I will.
MR. McGILL: Getting back to having him stay here, I don't
think that's a good idea.
MR. JACKSON: I don't, either.
THE COURT: I think I'm going to send him up.
Page 93.
MR. MCGILL: What I could do is this --
THE COURT: You can ask the question --
MR. MCGILL: May I say it first?
THE COURT: Go ahead.
MR. MCGILL: If I could say, "The individual that you have
stated, has he been in the courtroom this morning?" She'll say, "Yes."
Where has he been standing or seated? He has been seated," and she'll
point over there. And I'll say, "In this chair? That's correct." And then
you could at that point stipulate that if he were brought --
MR. JACKSON: No, no, no, no.
THE COURT: He doesn't have to stipulate to that.
MR. JACKSON: It's the defendant.
MR. MCGILL: No. No. Stipulate that if the defendant were
sitting in that chair that's the one she would say --
THE COURT: Give the jury some sense --
MR. MCGILL: Give the record some sense.
THE COURT: Well, it's in the record.
Page 94.
You should have done it when he was quiet.
MR. MCGILL: Judge, I should do a lot of things. I make a
mistake, what am I going to do?
THE COURT: What do you want me to do? Bring him out here?
He's going to be acting up in front of the jury. If I bring him out here
he's going to start acting up.
MR. JACKSON: It seems to me --
THE COURT: It's obvious.
MR. JACKSON: Where is he? He would he sitting in that
chair. Let the record reflect the defendant --
THE COURT: "Was sitting in this chair" you can do
that.
MR. McGILL: All right. I'll do that.
THE COURT: Sheriff, take him upstairs.
(Sidebar conference ended.)
(The following took place in open court in the presence of
the jury:)
MR. McGILL: Your Honor, if it please the Court, I have
--
Page 95.
THE COURT: Just a minute.
MR. MCGILL: I'm sorry.
THE COURT: Members of the jury, you are not to draw any
adverse inferences from the absence of the defendant. You should further
refrain from any sympathy, bias or prejudice for or against the defendant.
All right. Proceed, Mr. McGill.
MR. MCGILL: Yes. Sorry for that misunderstanding, Your
Honor.
THE COURT: That's all right.
MR. McGILL: Your Honor, I have over the course of the
time of Mr. Jackson questioning this witness asked one of my detectives to
go over to Jefferson Hospital --
THE COURT: If you have something to say about that, would
you please see me at sidebar?
MR. MCGILL: Okay, sir.
(A sidebar conference was held on the record as
follows:)
Q. Do you know whether in fact that you told your
supervisor whether or not Mr. Jamal was bleeding?
A. No I didn't know.
Q. You didn't know what?
A. If I had told them that. You asked me --
Q. I asked you before and you said, "No."
A. Right.
Q. Now my question is: Do you know whether or not you
told them?
A. No.
Page 101
Durham - Cross
Q. You didn't tell them he was bleeding?
A. I don't know.
Q. Would you review the statement that is in front of you
ma'am, D-14? Now, although I know -- tell me, is that the statement you
gave?
A. Yes.
Q. And it says in that statement that he was bleeding or
words to that effect?
A. Yes.
So that portion of your statement is incorrect?
A. You say it's incorrect?
Q. I'm asking?
A. No, I don't say it's incorrect.
Q. Well is it?
Q. No. If I said it on December the 10th, than that's
what it was.
Q. So you were wrong when you said that he wasn't
bleeding?
A. Yes.
Q. Okay. Now, let me get back to the cross-examination.
At what point did you notice he was bleeding?
A. I don't remember.
Page 102.
Durham - Cross
Q. Do you know where he was bleeding?
A. No.
Q. And in fact, you don't remember bleeding but you're
just saying that if it's in the statement it must be true?
A. No. I'm saying that on December the 10th when I made
this statement everything was more fresher than it is now. And I would go
along with the statement made December the 10th as opposed to me saying
this morning that he wasn't bleeding because I didn't remember him
bleeding --
Q. Is there anything --
A. -- but --
Q. I'm sorry. I didn't mean to interrupt.
A. But on December the 10th, whatever that was, the next
day, naturally I was more alert as to what went on the very next day as
opposed to five months later.
Q. I understand and I am not arguing with you. You've had
an opportunity to reflect. Is there anything else that you may now
remember that you didn't remember earlier?
A. No.
Page 103.
Durham - Cross
Q. Do you remember whether in fact any of the officers
were kicking Mr. Jamal?
A. No.
Q. Do you remember whether in fact the officers were
striking Mr. Jamal?
A. No.
Q. Do you remember hearing Mr. Jamal holler and scream as
if in pain?
A. No. As in defiance.
Q. As if in defiance? Well you have explained that to me
a minute.
A. Well, okay. If someone is being kicked or punched, I
mean you can distinguish between somebody hollering from pain and
hollering just to be hollering.
Q. Fine. And your saying the fact that Mr. Jamal was shot
in his chest wasn't paining him at all?
A. Well, I didn't know he was shot.
MR. McGill: I object. She did not state whether she was
aware of it.
BY MR. JACKSON:
Q. Whether you were aware of it or not, you're saying
that his crying and hollering was in defiance and not pain?
Page 104.
Durham - Cross
A. Pain in reference to him being kicked or hit?
Q. I don't know what --
A. Well, that's what you asked.
Q. No ma'am. I just asked whether he was hollering and
screaming in pain whether being kicked or being hit.
A. I don't know if he was shot so I couldn't say.
Q. You're saying that the hollering and screaming was in
defiance?
A. In reference to him being kicked or beaten as far as
the gun shot wound, I have no knowledge.
Q. So how could you say --
A. So I'm saying the assumption that whether I saw anyone
kick him or hit him, no, I did not. At this time I had no knowledge that
he was shot so how could I say that he was hollering because he was shot
and I didn't know.
A. I want to know how you can say he was hollering in
defiance?
A. Because even the way he was shouting it was more of a
boast thing.
Q. And that makes you believe --
A. Yeah.
Q. So based on your experience there at Jefferson
Page 105.
Durham - Cross, Redirect
Hospital, given the bullet wound to Mr. Jamal's chest,
would you assume he was in pain?
MR. McGILL: Objection.
THE COURT: I sustain that objection.
MR. JACKSON: No further questions.
REDIRECT EXAMINATION
BY MR. McGILL:
Q. Would you read that statement first please?
MR. JACKSON: I would object. May we see you Honor at
sidebar?
THE COURT: Yes.
(A sidebar conference was held on the record as
follows.)
THE COURT: Do you have the statement? Give me the
statement.
MR McGILL: Yes.
MR. JACKSON: If I may give the basis of my objection --
I'll let you read first.
THE COURT: Well, I don't think you have to read the whole
thing. If you're trying to affirm that she said this statement down here
you can read that part.
MR. JACKSON: Or refresh her recollection.
Page 106.
Durham - Redirect
THE COURT: Or just ask her.
MR. McGILL: Also it's a prior consistent statement.
THE COURT: I know.
MR. McGILL: He went into the business. Do you recall now
whether he was kicked or hit? That certainly gave the inference to the
jury that that is in that statement somewhere.
THE COURT: Wait a minute. Let me see this. Well, there's
nothing in here that says he was bleeding.
MR. McGill: There is one thing.
THE COURT: Where?
MR. McGill: Excuse me Judge for taking it from you.
THE COURT: Oh, I see.
MR. JACKSON: But Judge, whatever inference the jury may
get from my questions -- after the question about bleeding I left it and
said, "Let's get back to this incident now that you remember the
bleeding." But for her to be able to use this statement without ever
having adopted it, you can't use that.
Page 107.
Durham - Redirect
MR. McGill: He already said, "Do you recall."
THE COURT: Yes. She said this was her statement.
MR. JACKSON: She's just assuming. She never adopted it at
the time she gave it.
THE COURT: You cross-examined her on it. You don't have
to go over the whole thing. I think you should ask her if she remembers
this last part -- well, I don't want to say the word.
MR. McGill: I understand.
THE COURT: Actually, all of this is unnecessary.
MR. McGill: He brought in the aspect of the fact about
not being treated for awhile Judge on his cross-examination, that they did
not take him right away. Were there rooms available? Were there wheel
chairs available? And it says here that he was, in fact - states the
police took him to the family room about 16:30, later two doctors went to
the family room and said that Jamal needed treatment.
THE COURT: You can ask her about --
Page 108.
Durham - Redirect
MR. JACKSON: Judge, I object to the statement because she
hasn't adopted the statement. I'm just given a piece of paper saying
that's her statement she's saying that it must be and I don't know how you
can use that.
MR. McGILL: She does recall.
MR. JACKSON: Anybody could have typed that up. Judge, she
never adopted it.
THE COURT: She talked to these people up here.
MR. JACKSON: That is what it says. We don't know
that.
THE COURT: She said that.
Q. Now, would you read the next statement the next
line.
A. "Miss Durham stated that Jamal shouted Yeah. I shot
the mother fucker and I hope he dies."
Q. You said that on December 10, 1981?
A. Yes, I did.
Q. Also I'd ask that this be marked C-53, please, the
statement to Internal Affairs.
While that's being marked, Miss Durham, it's a fact that
that investigation was initiated by the defendant through his attorney.
Did you determine who that was?
A. Yes.
Q. Do you know the results of the investigation of the
District Attorney's office?
A. No.
MR. JACKSON: Objection.
MR. MCGILL: Okay. Withdraw that, then.
Page 114.
Durham - Redirect
BY MR. MCGILL:
Q. But then the momentum to ask the question came from
the defense; is that true?
MR. JACKSON: Objection.
THE WITNESS: Yes.
MR. MCGILL: Show the witness the document.
MR. JACKSON: Would the witness be instructed not to
answer the questions if there is an outstanding objection, please?
THE COURT: Objection is overruled. Please wait until I
get a chance to take a look at the statement before you start.
MR. McGILL: Sorry, Judge.
BY MR. MCGILL:
Q. Would you take a look at that statement and review it?
Have you had an opportunity to review it?
A. Yes.
Q. May I approach the witness, Your Honor? In reference
to C-53 -- Mr. Jackson, on page three -- do you again state -- you don't
have to say it again -- but, did you again state what you heard the
Page 115.
Durham - Redirect
defendant say?
A. Yes.
Q. And did you there state that the defendant had said
that twice, at least twice?
A. Yes.
Q. And is that accurate?
A. Yes.
Q. That was on February the 9th, is that correct?
A. Yes.
Q. Miss Durham, you used, on cross-examination, two words
in reference to his remark, one word was defiance and the other word was
boasting --
MR. JACKSON: Objection. They're both conclusions and
beyond the scope of this witness's expertise.
MR. McGILL: He brought out the both of them and
questioned on them.
THE COURT: Go ahead. Overruled.
BY MR. McGILL:
Q. Would you explain what you mean?
MR. JACKSON : Objection. It's not relevant.
Page 116.
Durham - Redirect
THE COURT: Overruled. Go ahead.
MR. MCGILL: That means you can answer, when he says
overruled.
THE WITNESS: Well, what I meant by boastful was I mean
being on the street as long as I have everybody knows, you know, street
lingo and whatever, and it's just that it was my interpretation of Mr.
Jamal when he was brought into the Emergency Room that night that he was
doing everything he could to intimidate the police officers, and that's
why I used that word.
MR. JACKSON: Fine, Your Honor. I'll again object and move
to strike.
THE COURT: No.
MR. MCGILL: Not if he brings it out, Judge.
THE COURT: I said, no.
MR. MCGILL: Sorry, Judge.
THE COURT: Don't get excited.
BY MR. MCGILL:
Q. You used the word Jamal and you used the word
defendant several times. Although Mr. Jackson presently is seated in this
chair, that individual, was he in the
Page 117.
Durham - Redirect
courtroom this morning?
A. Yes, he was.
Q. And where was he?
A. He was sitting where Mr. Jackson is now sitting.
MR. MCGILL: That's indicating, Your Honor, where the
defendant in this case, Mumia Abu-Jamal was seated. Is that correct, Mr.
Jackson?
MR. JACKSON: Yes.
BY MR. MCGILL:
Q. Now, you did state in response to Mr. Jackson's
questions something about contact that you had with Officer Faulkner an
hour or two hours before. Now would you explain that?
A. Yes. Officer Faulkner had brought in a little girl. I
believe she was around six or seven years old. A black, female who had
been sexually assaulted --
MR. JACKSON: Objection unless the witness knows that
she's been sexually assaulted, Your Honor.
MR. MCGILL: The question on cross-examination was --
THE COURT: Overruled.
Page 118.
Durham - Redirect
MR. MCGILL: What did you talk about?
THE COURT: Go ahead.
MR. MCGILL: Go on.
THE WITNESS: The victim along with some relatives and
friends, if I'm not mistaken, accompanied her to the hospital. One of the
guys that came with the victim to the hospital had left the emergency area
and was doing whatever, and Officer Faulkner was aware that the guy was
there and had gone and left the emergency area and came back with him.
BY MR. MCGILL:
Q. And you used the word suspect?
A. Yes.
Q. Did you later determine that Officer Gwen Thomas was
the assigned investigator in that particular arrest?
MR. JACKSON: Your Honor, objection. That wouldn't go to
Gwen Thomas.
MR. McGILL: He brought it out.
THE COURT: Okay. Don't get excited. Go ahead.
Page 119.
Durham - Redirect
BY MR. MCGILL.
Q. Did you later find that out?
A. Yes.
MR. MCGILL: Thank you, ma'am. Take a look at the
officer's log, please.
MR. JACKSON: Your Honor, may we see you at sidebar,
please?
(A sidebar conference was held on the record as
follows:)
MR. JACKSON: I'm going to object to any questions he asks
her about the officer's log. She's got nothing to do with that.
THE COURT: Where are you going into the log?
MR. MCGILL: We're going to ask her to take a look at this
document and whether or not this could refresh her recollection as to the
time when she saw Officer Faulkner with this particular individual as well
as the family.
MR. JACKSON: It's not her notes.
MR. MCGILL: That's correct.
MR. JACKSON: So they can't use that for refreshing her
recollection.
Page 120.
Durham - Redirect
THE COURT: Can you even read this thing?
MR. JACKSON: You can't use that to refresh her
recollection even if she could.
MR. MCGILL: I'll tell you what it says. It says "140
South 14th, rape -- not 14. I can't read that. "South 11th. rape suspect
ID'd, Jefferson Hospital, Route 2, sex crimes. 2:05" --
THE COURT: What's this, the time?
MR. JACKSON: Yes.
MR. MCGILL: 2:05.
MR. JACKSON: You are getting behind the point, Judge.
THE COURT: 2:05 then she's right. Then about two hours
--
MR. JACKSON: But Judge, she can't use this. It's not
hers. You can't use someone else's statement to refresh your
recollection.
MR. MCGILL: Okay. I'll withdraw it.
THE COURT: Yes, that's not right.
(Sidebar conference ended.)
MR. MCGILL: I withdraw the question.
Page 121.
Durham - Redirect
BY MR. MCGILL:
Q. Did you know that Officer Gary Bell was Officer
Faulkner's former partner --
A. No.
Q. -- at that time?
A. No.
Q. Did you find that our later?
A. No.
Q. You indicated confusion around that area, in and out
of the area that is indicated by that sketch. What did you mean by
that?
A. Well, it was just a lot of policemen, you know, there.
Mostly all policemen. Everybody. you know, inspectors, everybody was
there. It was just mass confusion.
Q. Was there a lot of movement back and forth?
A. Yes.
Q. In other words, they just didn't go in there and stand
around. Was there a lot of movement?
A. Yes. Well, the area itself is not very big inside or
out so you sort of had a spill over, people who couldn't get in and those
trying to get in and out.
Q. Now, you had indicated although you had a review
Page 122.
Durham - Redirect
of the statement -- did you have an opportunity to take a
good view, a fair view, of the defendant in reference to determining
whether or not he was injured?
A. No.
Q. Was it your function to determine whether or not he
was injured?
A. No.
Q. As a matter of fact, why was it that you felt it
important to see that the defendant was, in fact, removed to the waiting
room?
MR. JACKSON: Objection.
THE COURT. I'll let her answer.
THE WITNESS: Could you repeat the question?
MR. MCGILL: All right. The question was, why was it that
you felt that it was necessary at that time to remove or have the
defendant removed from that area after those remarks.
MR. JACKSON: Objection, your Honor. The question was
posed to her by a police officer. It wasn't her feeling that caused him to
be moved
Page 123.
Durham - Redirect
MR. MCGILL: Perhaps we can ask her to answer the
question.
THE COURT: Go ahead.
MR. MCGILL: Instead of Mr. Jackson --
THE COURT: You can answer it.
THE WITNESS: Well, like I said, when I heard Mr. Jamal
make the statement simultaneously the police were asking me where could
they place him. As I said before, Officer Faulkner was not far from that
area and I wanted to clear that area from Mr. Jamal.
BY MR. MCGILL:
Q. Now also normally in reference to giving the
statements to the police when would it be that you would give a statement
to the Philadelphia police in what kind of a situation?
A. In an official capacity, if I myself called them. As
far as police business, I have no interference. I don't have to make
statements to the police --
Q. Okay.
A. -- when they bring in prisoners, that's their
prisoners and we don't have anything to do with it.
Q. Would you, for example, if it was a crime that
Page 124.
Durham - Redirect
occurred in the hospital then would you become actively
involved and give statements if you were a witness or in any way connected
with it?
A. Yes. It would have to be within the hospital.
Q. So your duties, then, really were limited in terms of
responded to interviews in the normal course of events to your supervisor
in the hospital, which you did.
A. Right.
Q. And the next time that you had an opportunity, I
believe -- well, the next time that you told anything to the police was
when they came to you on February the 9th?
A. Yes.
Q. Was there any other security officer in that general
area there?
A. Yes.
Q. There? Who?
A. Officer James Legrand.
Q. He is also a security officer?
A. Yes, he is.
Q. Do you see this individual?
A. Yes.
Page 125.
Durham - Redirect, Recross
Q. Can you identify this individual?
A. Officer James Legrand.
Q. Officer James Legrand?
A. Jefferson security officer.
Q. Thank you very much. Was he the individual that was in
that general area?
MR. McGILL: Thank you. No further redirect.
MR. JACKSON. I have a few questions, if you don't
mind.
RECROSS-EXAMINATION
BY MR. JACKSON:
Q. You indicated that before Mr. Jamal was brought in you
hadn't discussed the shooting of officer Faulkner with anyone, right?
A. No.
Q. That you just indicated to Mr. McGill that because Mr.
Jamal was in the area near Officer Faulkner you wanted to clear the area:
is that right?
A. Yes.
Q. Is that because you wanted to keep them separated?
A. No. Because, like I said, behind the statement
Page 126.
Durham - Recross
that I had heard I just didn't think it appropriate that
he be in earshot of the wounded officer?
Q. Why?
A. I don't know. My own reason, no particular-- reason. I
just felt that he should have been moved to another area.
Q. If you didn't hear any questions you didn't know he
was the one who shot the officer, why did you assume he was talking about
the officer?
A. I just assumed -- first of all, the hospital was
closed at this --
Q. What do you mean?
A. It was medically closed. There wouldn't have been no
medical emergencies other than, you know -- so what I'm trying to
establish is that I knew when I saw him that he was not, per se, another
hospital case because the emergency area had been closed.
Q. I don't understand you at all, ma'am.
A. Well -
Q. Explain to me -- I mean, you say it's closed and
people are going in the hospital?
A. All right. What I'm trying to say is, at this time
there was a medical emergency involving Officer
Page 127.
Durham - Recross
Fau1kner.
Unless it was, I mean, an extreme life-saving, you know,
like somebody just jumped off the bridge or out of a window, the hospital
was closed. Because there was mass confusion there was no place to even
bring anybody else, they couldn't even get through the door. So when Mr.
Jamal arrived and he was shot and he was saying, 'Yeah, I shot this man"
--
Q. You say shot what?
A. I'm not going to repeat what I said. I said it
already.
Q. Go on.
A. I just took it upon myself to clear him from this
area.
Q. I understand that. But you still didn't make me
understand why it was you knew that Jamal was talking about that
officer?
A. I can't explain how I knew. He said it and I
understood what he meant, and I acted on that.
Q. You --
A. He didn't call the officer by name. He didn't say, I
shot the police officer. I mean it was just instinct. I don't know how.
You can call it motherly instinct or whatever, I just knew what he was
talking
Page 128.
Durham - Recross
about.
Q. You just knew?
A. Yes.
MR. JACKSON: Thank you. No further questions.
MR. McGILL: I have no further questions, Your Honor.
THE COURT: I have none.
MR. MCGILL: None, Judge?
THE COURT: All right. We'll recess for lunch until
2:15.
(Witness excused)
(A luncheon recess was taken until 2:15 o'clock p.m.)
Page 129.
AFTERNOON SESSION
(A conference was held in chambers on the record as
follows:)
THE COURT: Let the record indicate we're back in
chambers.
MR. JACKSON: Yes. I just talked to Mr. Jamal relative to
his behavior and activity in the court this afternoon. Mr. Jamal indicates
that the judge has not satisfactorily dealt with his question, so it's
intention to speak to the judge.
Based on that I informed him that the judge would not
permit him to return to the courtroom. Mr. McGill intends to --
THE COURT: You indicated to me that he said he has no
intention to sit and be quiet and that he would disrupt the proceedings;
is that right?
MR. JACKSON: He said it was not his intention to be
quiet.
THE COURT: That's what I mean.
MR. JACKSON: Okay.
THE COURT: So in effect what's he going
Page 130.
to do is disrupt the proceedings in front of the jury
again. If I were to bring him back in and bring the jury into the
courtroom he would then stand up again and continue with what he was doing
before, is that what you're saying?
MR. JACKSON: In all due respect to the Court, it was that
he would not be quiet.
THE COURT: That's what I mean.
MR. JACKSON: Fine. That's what he said.
THE COURT: Otherwise I can bring the jury in now and
we'll find out.
MR. JACKSON: He says he will not be quiet and your Honor
--
THE COURT: I will take the position --
MR. MCGILL: I would be willing to put the jury in.
THE COURT: What I am doing is avoiding his acting up in
front of the jury again.
MR. JACKSON: Yes.
THE COURT: And I understand what you're telling me, that
he will act up again in front of the jury, that's why I'm not going to
bring
Page 131
him out, because to bring him out would only bring to
their attention once more the fact that he's going to be removed from the
courtroom.
MR. JACKSON: That's correct, Your Honor. And based on
that possibility I have recommended to Mr. McGill and ask that Your Honor
consider a stipulation by me that in effect Officer Gary Bell, who is the
next witness of the Commonwealth -- I would stipulate that in fact it was
Mumia Abu-Jamal that Officer Bell saw at Jefferson Hospital in the
Emergency Room lobby floor on 12/9/91 and that for all purposes of that
identification it is the defendant.
I also would like the record to reflect that this
stipulation is a result of my concern and in abundance of caution that if
in fact Mr. Jamal is going to conduct his behavior as he's indicated to
me, my feeling is that the impact on the jury would be adverse and they
would necessarily draw some negative inferences from his conduct, and I
feel that the stipulation would neutralize that inference as much as
possible.
THE COURT: Fair enough.
Page 132.
MR. McGILL: I'll agree.
THE COURT: All right. He can go back up.
(Conference in chambers ended.)
(A short recess was taken.)
(A conference was held in chambers on the record as
follows:)
MR. JACKSON: I have just gone back to Mr. Jamal and
indicated that he's now going to be taken up to the sheriff's cell room.
He requested that he be permitted to be taken back to the prison
immediately. I suggested to him that it's my understanding of the law that
he has to remain here and be available even if he's not actually in the
courtroom. Again, I'm bringing this to Your Honor's attention and Your
Honor can --
THE COURT: I think he should stay upstairs.
MR. MCGILL: Yes, I would ask that that be done.
THE COURT: Just in case.
MR. JACKSON: I think the rules are that's
Page 133.
Bell - Direct
why they have to bring him to court everyday even if he's
not here.
THE COURT: He's got to stay up there, court officer, tell
the sheriff.
(Conference in chambers ended.)
(Court reconvened at 2:50 o'clock p.m.)
(The following took place in open court in the presence of
the jury:)
THE COURT: Good afternoon, ladies and gentlemen.
(A discussion was held off the record.)
MR. McGILL: Your Honor, the Commonwealth's next witness
is Officer Gary Bell.
- - - -
OFFICER GARY BELL (Badge Number 1217,
Sixth District) having been duly sworn, was examined and testified as
follows:
MR. MCGILL: May I proceed, Your Honor?
THE COURT: Yes, please.
DIRECT EXAMINATION
BY MR. McGILL:
Q. All right. Officer Bell, on December the 9th,
Page 134.
1981, did you have occasion to go to the emergency area
of Jefferson Hospital in Jefferson Hospital?
A. Yes, I did.
Q. And for what purpose did you go there?
A. As a result of information I received over police
radio I responded to the Emergency Room at Jefferson hospital.
Q. And when you arrived where did you go?
A. I was met by other officers that were there ahead of
me and they directed me to the room where the doctors were treating
Danny.
Q. Now, what was your relationship with Officer
Faulkner?
A. I was a close friend of his for approximately five
years and his former partner.
Q. You mean former partner in a police wagon?
A. We worked the wagon together, 602 wagon.
Q. Approximately how long were you partners?
A. He came over from one squad which was the squad he was
in previously specifically so we could work together on the wagon. For
approximately a year.
Q. Were you also a friend of his family?
A. Yes. I was.
Page 135.
Bell - Direct
Q. When you went there what did you do after you were
directed to where he was?
A. I went over to the room on the side and I opened the
door and I looked in and I saw Danny on the table being worked on by the
nurses and doctor.
Q. All right. And what then occurred?
A. I watched for several minutes and I heard from -- I
don't know who said it -- somebody behind me said they were bringing the
guy that shot him. And I turned and several officers brought a male in and
laid him on the floor in the hospital just inside the doors.
Q. Now before they did that you were where? Before that
-- did you see them bring him in, or just hear they brought him in?
A. I didn't see actually them bringing him in.
Q. Okay. And you were with Officer Faulkner, in the room
where he was?
A. That's correct.
Q. Where he was being attended. Okay. At that time when
they brought this man in what did you then do?
A. I walked over to him. I wanted to see who did it, who
shot him. And I looked at him and he looked up
Page 136.
Bell - Direct
Q. Indeed you're telling us that in fact the first time
that you ever told police that Mr. Jamal made those remarks was on the
25th of February after Mr. Jamal made a complaint about being beaten;
isn't that true?
MR. McGILL: Objection, Your Honor. Mr.
Page 141.
Bell - Cross
Jackson made the complaint. I've heard nothing from Mr.
Jamal.
MR. JACKSON: I'll rephrase it so we get the question
again.
BY MR. JACKSON:
Q. Isn't it a fact that the first time you gave the
statement to the police relevant to what you stated Mr. Jamal said to you
was on February 25th after Mr. Jamal through me made a complaint of police
abuse; isn't that correct, sir?
A. I gave a statement on the 25th of February; that's
correct.
Q. And weren't you advised that as a result of the
complaint lodged upon Mr. Jamal through me that the statement was being
asked of you --
MR. McGILL: Objection, Your Honor. It's established he
made a complaint.
MR. JACKSON: Your Honor, may I ask, may I do this
cross-examination?
THE COURT: Go ahead.
MR. JACKSON: Thank you.
BY MR. JACKSON:
Q. Again, sir, I'll ask the question as many times as
Page 142.
Bell - Cross
it takes. Again, on the 25th of February were you not
advised that as a result of a complaint of Mr. Jamal through me who wanted
to find relative to his being beaten by the police --
MR. MCGILL: Objection. The question is when did he make a
statement and where.
MR. JACKSON: Your Honor, may I?
THE COURT: I know. Don't come to any conclusions. All
right.
MR. JACKSON: Your Honor, this is what he was advised. He
signed the statement.
THE COURT: Ask him what he was advised. Please, rephrase
your question.
BY MR. JACKSON:
Q. Were you not told by Sargent Vargas --
THE COURT: Just a minute, come here.
(A sidebar conference was held on the record as
follows:)
THE COURT: Your question presupposes that he was advised
by Mr. --
MR. JACKSON: He was.
THE COURT: Wait awhile. I don't care what you've got on
that paper, why don't you ask
Page 143.
Bell - Cross
him?
MR. MCGILL: May I state my objection, first of all?
MR. JACKSON: Wait a minute.
THE COURT: I want to get that point --
MR. McGILL: I'd like to state that objection then we know
why I'm objecting.
MR. JACKSON: I don't get a chance to say anything.
MR. MCGILL: Let me state the objection and then you can
respond to it.
THE COURT: Go ahead.
MR. MCGILL: The objection is to this: It is not relevant
under what conditions he gave a statement in terms of why the statement
was given. The only relevance is that a statement was made on February the
25th putting all sorts of statements in light. The reason for it, weren't
you advised that the reason for this was such and such and such and such?
What that amounts to is Mr. Jackson testifying through alleged abuse a
question to this particular witness. It is simply not relevant to this
trial
Page 144.
Bell - Cross
in that form. The only form that is relevant is why did
he wait until that time to say. Did you give a statement to the police at
that time, asking a question in this form, is irrelevant to this case.
This is not a civil proceeding, Your Honor. That's why. And I think it's
an indirect way of --
MR. JACKSON: Obviously there is a bias of the officer,
that's relevant. And I now obviously have an opportunity to develop and
discover any bias that this officer -- it's on the document he signed.
THE COURT: I don't care. He's telling you that he's a
very good friend of his --
MR. JACKSON: I understand that.
THE COURT: -- if you want to argue that's bias. He worked
with him, he's a police officer, if you want to argue that's bias. But to
ask this police officer has anybody ever accused him of beating this
defendant --
MR. JACKSON: But all --
THE COURT: Well --
MR. JACKSON: Judge, what's I'm saying
Page 145.
Bell - Cross
is at the scene he indicated he didn't know anybody's
name and at the hospital he was beaten. This officer was interviewed as a
result of the complaint that he made through me, and the only time he gave
the statement, the police officer, is when he was interviewed. The bias,
of course, is that he may have beaten Mr. Jamal.
THE COURT: Wait awhile.
MR. MCGILL: Oh, God.
THE COURT: Let me stop you right there. If that's the
situation why don't you develop that first?
MR. JACKSON: Judge, what I'm simply saying is that I
don't think that I should be required to state each and every opportunity
for bias but to --
THE COURT: Wait awhile. You're jumping to a
conclusion.
MR. MCGILL: I don't understand you.
THE COURT: How about the prior witness, the witness who's
a security guard for Jefferson? She didn't beat that defendant.
MR. JACKSON: Fine and --
Page 146.
Bell - Cross
THE COURT: Wait awhile. And yet she was interviewed by
the Internal Affairs.
MR. JACKSON: As a witness.
THE COURT: She was interviewed not as a witness but she
was interviewed for what she might know.
MR. JACKSON: I understand.
THE COURT: Okay?
MR. JACKSON: But Judge --
THE COURT: You're presupposing that he was beaten and
there's no evidence thus far except for what the officers have testified
to. Maybe in your defense you can bring in evidence to show he was beaten,
and that's fine.
MR. JACKSON: I'm not saying the beating would be the only
bias. I'm saying whatever the bias is. If in fact the man who's accused of
shooting the officer is now saying, "The police officer has beaten me up,"
isn't there a possibility of a bias -- a possibility?
THE COURT: Wait a minute. Anything is a possibility. You
don't put in your questions as if that's a conclusion. If you want to
ask
Page 147.
Bell - Cross
him if he was interviewed by Internal Affairs, fine.
MR. JACKSON: And can I --
THE COURT: That's the first time you asked that, but you
can't ask him if he was interviewed necessarily because you've already
indicated that as a basis of your complaint. He was interviewed and let's
leave it at that.
MR. JACKSON: I understand.
THE COURT: That's it.
MR. JACKSON: Why can't I ask him why he was
interviewed?
THE COURT: He doesn't know.
MR. JACKSON: He does.
THE COURT: Wait awhile. Because he happens to be a police
officer who happened to be somewhere near him? Did Internal Affairs indict
him for anything?
MR. MCGILL: Absolutely not. The D.A.'s office cleared the
whole thing.
MR. JACKSON: Judge --
MR. MCGILL: This is why --
MR. JACKSON: Let me explain this.
Page 148.
Bell - Cross
THE COURT: I know, Jackson, I know what you're trying to
do and I've made my ruling. That is not proper.
MR. JACKSON: Would you let me explain? If police are
going to interview and someone from Internal Affairs is going to interview
him, and they tell him why --
THE COURT: What's the difference? It's not relevant to
this proceeding.
MR. JACKSON: It brings out possible bias, Judge.
THE COURT: Not necessarily. How would he be biased?
MR. JACKSON: Because that's his partner.
THE COURT: Oh, the other girl, the other officers,
doctors --
MR. JACKSON: That's a possibility of bias.
THE COURT -- they were all biased?
MR. JACKSON: You mean to tell me, Judge --
THE COURT: Let me tell you they were interviewing because
you made a complaint and
Page 149.
Bell - Cross
they wanted to see if there was any justification for the
complaint. They were, naturally, going to interview everybody who they
thought might have been around when this happened.
MR. JACKSON: Okay, but Judge --
THE COURT: Okay.
MR. JACKSON: If we follow what you're saying that means
even if he was beaten they just wanted to beat anybody. I couldn't accuse
anybody of it.
THE COURT: You can't. You can ask this man, you can ask
him. That's a different story. You can ask him whether he beat him or laid
a hand on him or did anything.
MR. JACKSON: Judge, you're saying even though he told him
the reason why he was being interviewed that I can ask him the reason why
he was being interviewed?
THE COURT: I think it's irrelevant.
MR. JACKSON: That's not so, Judge.
THE COURT: You've already brought that out once.
MR. JACKSON: What?
Page 150.
Bell - Cross
THE COURT: You brought out once that you made a
complaint.
MR. JACKSON: But you're not permitting me to ask this
question.
THE COURT: It's in there once, that's enough. If
shouldn't even have been in in the first place but it's in there now and
that's all. You're trying to draw a conclusion that he was beaten. You
cannot do that.
MR. JACKSON: I am not, Judge.
THE COURT: Yes, you are.
MR. JACKSON: Simply --
THE COURT: I am not going to allow that question. Look
--
MR. JACKSON: The beating has nothing to do with it.
THE COURT: I don't care. I don't care. I don't care. I
don't care why the Internal Affairs did it. They had to do it. This is
their procedure. Somebody makes a complaint, they have to do it and that's
it. Why they do what they do I don't care.
MR. JACKSON: All I'm simply saying is,
Page 151.
Bell - Cross
I can't bring out certain things in the statement?
THE COURT: I'm just saying that as you quoted it to me
--
MR. JACKSON: I'll read it if you want.
THE COURT: I don't care. But what you're saying is not
admissible. I don't care if Internal Affairs or why Internal Affairs
questioned him. That's their problem.
MR. JACKSON: But Judge, let me ask you this: You're
saying that the contents, the questions and answers of this statement, are
not admissible?
MR. MCGILL: No.
THE COURT: I didn't say that. I'm just saying that the
fact that they told him that they're interviewing him because they got a
complaint of an alleged beating is not relevant to any questions that you
may have of this officer as to his bias or prejudice.
MR. JACKSON: So I can't --
THE COURT: So I think there's enough possibility for you
to argue prejudice and bias
Page 152.
Bell - Cross
from the very fact that he said that he was a personal
friend of his, knew him, worked with him, he's a fellow officer, all of
those things.
MR. JACKSON: But I had a hundred different reasons, Your
Honor. Couldn't I have two hundred reasons?
THE COURT: Get two hundred. I don't care.
MR. JACKSON: That's what I'm saying; this is an
additional reason.
THE COURT: What I'm saying is, why somebody else did
something is not relevant to this witness's bias.
MR. MCGILL: Judge --
MR. JACKSON: Well --
MR. MCGILL: -- if I can stop you here, I will not object
if he wants to ask one question like -- now I think it's very clear to the
jury at this point, anyway, what it is because of the last two or three
questions that were not responded to, that were objected to, particularly
in light of the fact that Priscilla Durham stated that it was in response
to this complaint -- if
Page 153.
Bell - Cross
he wants to say in response to a complaint made by the
defendant through me did you give various answers to various questions, I
will not object to that.
MR. JACKSON: I can just read that. Why don't you read
this? If I were to say Officer, isn't it a fact that they said that we are
questioning you concerning and then go on. I mean it says the same thing.
That way we don't have to improvise on the language. I think it's
essentially the same thing you said.
MR. MCGILL: No. I don't like that because it's too much
in the question referring to testimony, like you're testifying. I think it
is clear enough to say a complaint lodged by the defendant through you
that these questions were asked.
MR. JACKSON: Okay. All right. Fine.
MR. McGILL: That certain questions were asked.
THE COURT: Okay.
MR. MCGILL: I won't object to that.
(Sidebar conference ended.)
Page 154.
Bell - Cross
BY MR. JACKSON:
Q. Officer Bell, again, isn't it a fact that you were
interviewed on 2/25/82 as a result of a complaint that was lodged by Mr.
Jamal through me with regard to some complaint?
A. That's correct.
Q. At no other time prior to February 25, 1982 did you
give a statement relevant to anything that Mr. Jamal may have said?
A. No. I did not.
Q. And you never prepared a 75-48?
A. There wasn't one required for that.
Q. You came in contact with a suspect, did you not?
A. That's correct.
Q. When you normally come in contact with suspects don't
you prepare a 75-48 if not a 75 -- well --
A. If I had been the arresting officer I would be
required to make a 48.
Q. You're saying that you never prepared a 75-48, an
Incident Report, when you are simply assisting another officer?
A. Not normally.
Q. Do you ever do it?
Page 155.
Bell - Cross
A. No, you don't.
Q. You.
A. No, I don't.
Q. So you would have no indication at all at a certain
time if you were assisting a brother officer there would be no indication
where your time was?
A. On a Patrol Log it would be but not on a 48. The
officer making the initial contact on the arrest would submit the 48, and
if anybody assisted him it would be on the Patrol Log.
Q. You were requested by Night Command to assist in come
capacity; is that right?
A. Because I knew the family, I knew Danny's wife. He
asked me questions, whether he was married, whether he had any children,
where he lived, how they could get in touch with his wife.
Q. And you obviously had an interest in Officer Faulkner
and his family?
A. Absolutely.
Q. And you knew who the assigned detective was?
A. At that time no, I did not.
Q. Did you know before February 25, 1982 who the assigned
detective was?
Page 156.
Bell - Cross
A. No, I don't believe I did.
Q. Did you ever make any efforts to find out?
A. There was no reason for me to find out who the
assigned detective was.
Q. Well, didn't you think the information with regard to
that statement you said Mr. Jamal gave you, didn't you think it was
relevant and important?
A. Yes, I did.
Q. But you didn't take any steps whatsoever to convey it
to anyone?
A. At that time it was a very, very emotional time for me
--
Q. I'm sure it was, Officer.
MR. MCGILL: Objection. May he respond?
THE COURT: Let him respond. You asked him a question.
Please.
THE WITNESS: I watched my best friend die in front of my
own eyes.
MR. JACKSON: Yes, sir.
THE WITNESS: And the last thing I thought about was
talking to anybody. I wasn't even thinking clearly at the time.
BY MR. JACKSON:
Page 157.
Bell - Cross
Q. I can appreciate that, sir. But again, not until
February 25th when you were asked -- didn't you think again --
A. When I was directly asked I responded with my
answers.
Q. I understand that you responded when you were asked
back in February. My question is: At that time didn't you think what you
heard, what you say you heard, was important enough for you to seek out an
investigator and tell him, "That the man who's accused of shooting my best
friend told me he shot him?"
A. I did tell him that.
Q. When?
A. When he asked me.
Q. In February?
A. That's correct.
Q. But the question is: Didn't you think it was important
enough to tell him before then?
A. Yes, I did think it was important enough. I wasn't
thinking clearly. I put it in the back of my mind at the time.
Q. Did you tell anybody else before you spoke to Sargent
Vargas --
Page 158.
Bell - Cross
A. Excuse me?
Q. Did you tell anyone else what you heard before you
spoke to Sargent Vargas?
A. I don't believe I did, no.
Q. You never told that to anybody?
A. No, I did not.
Q. Just kept that a secret?
A. Kept it in my mind, yes.
Q. Because you were upset?
A. Very upset, very angry.
Q. You ever obtain a statement from any other defendant
in your eight years as a police officer?
A. Yes, I have.
Q. Did you convey this statement to the assigned
detective or to someone else?
A. Probably did, yes.
Q. I take it you're saying that this case is unusual
because it was your best friend that was involved and your emotions
prevented you from conveying it?
A. At the time it's probably what it was, yes.
Q. Well, at the time, sure.
A. Yes.
Q. But in all due respect, Officer Faulkner died
Page 159.
Bell - Cross
on December the 9th; is that correct?
A. That's correct.
Q. So then you had the rest of December and January and
almost the end of February is when you were asked the question. That's the
first time you let anybody in this world know what you say you heard.
A. That's correct.
Q. Did you see anyone beat Mr. Jamal, sir?
A. Excuse me?
Q. Did you see anyone beat Mr. Jamal in the hospital?
A. No, I did not.
Q. Did you beat him?
A. No. sir.
Q. Pardon me?
A. No. sir.
Q. Did you see anyone kick him?
A. No. I did not.
Q. When you first saw Mr. Jamal where was he?
A. He was laying on the floor just right around the area
of the double doors leading into the Emergency Room.
Q. How many officers were around him or near him?
A. There was several. I couldn't be sure how many.
Page 160.
Bell - Cross
Q. Were they in physical contact with him?
A. I don't believe so, no.
Q. So that he was just lying on the floor by himself?
A. He was handcuffed.
Q. Behind his back?
A. That's correct.
Q. And he was laying on his back?
A. Laying on the side.
Q. Laying on the side. Was he doing anything to
anybody?
A. No, he wasn't. He was laying there -- he was moving
around, squirming, but he wasn't doing anything to anybody then.
Q. Wasn't kicking anybody?
A. No.
Q. Wasn't kicking anybody with his elbows or shoulders,
was he?
A. Not that I can recall he wasn't.
Q. Was he hollering?
A. He was mumbling something.
Q. Do you know what?
A. I couldn't understand exactly what he said at
Page 161.
Bell - Cross
times and other times when he told me that he shot Danny
then I heard what he said. He said it very loud.
Q. He said he shot Danny?
A. "I shot the mother fucker, I hope the mother fucker
dies," those were his words.
Q. In all due respect, how did you know he was talking
about your former friend?
A. I assumed he was.
Q. That's an assumption. He never said he shot Danny?
A. No. He said, "I shot the mother fucker, I hope the
mother fucker dies."
Q. Now again, Officer, you saw nobody in physical contact
with him -- and by the way, did you see blood on Mr. Jamal?
A. I don't recall seeing any, no.
Q. Did you look at his face?
A. Yes, I did, looked right in his eyes.
Q. Did you look in his chest area?
A. I may have.
Q. Now, when you looked directly in his eyes did you see
a scar over top of his eye?
MR. MCGILL: Scar?
Page 162.
Bell - Cross
BY MR. JACKSON:
Q. I'm sorry. Did you see blood?
A. I don't recall seeing no blood, no.
Q. Not at all?
A. It could have been there. I don't know. I don't
remember seeing --
Q. You didn't see blood in the chest area, you've already
said?
A. No. I didn't.
Q. How long did you watch him on the floor?
A. Probably less than a minute.
Q. And after he said what he said to you, you said that
you walked away because you didn't want to get caught up with it?
A. I felt I had to walk away, yes.
Q. Fine. And did you hear him say anything else after you
left?
A. No, I did not. I believe they removed him to a bed to
be treated after that.
Q. Now I understand that you've told us what you said Mr.
Jamal said. Do you recall a police officer saying anything to him?
A. Other than myself?
Page 163.
Bell - Cross
Q. Yes, sir.
A. Not offhand I don't.
Q. Now you tell us that he made those remarks to you when
you first came upon him; is that right?
A. That's right.
Q. So you don't know whether or not he was responding to
a question or some other officer?
A. I wouldn't know that, no.
Q. Because he said to you, "Yeah, I shot the mother
fucker and I hope he dies?"
MR. MCGILL: Objection. That's not the words he used.
MR. JACKSON: I'm sorry, Officer. Tell me, again. If I'm
misquoting, I apologize.
THE WITNESS: He said, "I shot the mother fucker, I hope
the mother fucker dies."
BY MR. JACKSON:
Q. So he didn't say, "Yeah,- at first?
A. No, he didn't.
Q. You're certain of that?
A. I'm almost positive.
Q. Almost positive. Do you know the security officer
Priscilla Durham?
Page 164.
Bell - Cross
A. Do I know of her?
Q. Yes.
A. I know of her. I don't know her personally.
Q. Do you remember seeing her on the night of this
incident, December 9th?
A. There was quite a few people there. She could have
been there. I don't know. I couldn't name the people that were there.
Q. When you saw Mr. Jamal and he made the remark to you
he was -- in terms of your -- strike that. Where were you actually seated
or standing at the time that you came in contact with Mr. Jamal in the
Emergency Room?
A. He was laying on the floor on his, it would be his,
right side.
Q. Let me stop you, if you don't mind. I mean, was he in
the doorway, wasn't he in the doorway?
A. He was right by the doorway, yes.
Q. Was he on the rubber mat that opens the automatic
door?
A. I think he was, yeah. I think he was.
Q. And you were on the other side of the door?
A. No. I was -- he was on his right side leaning
Page 165.
Bell - Cross
this way and I was standing right here.
Q. Right next to him?
A. Yeah, within about maybe a foot and-a-half away from
him.
Q. And you just walked right up to him and that's when he
said it?
A. I walked up to him, I leaned down and I looked at him.
I stared at him, because I wanted to see who he was.
Q. As you were approaching him how long did it take you
to approach him?
A. A few seconds.
Q. Few seconds? And the other officers were mumbling
something around him, or he was mumbling something?
A. There was mass confusion at this point in the
Emergency Room between the doctors and the police, police personnel, there
was a lot of people talking. I don't know if they were talking at me, at
him, or who they were talking to.
Q. And when he was coming in someone said to you,
"They're bringing in the man that shot Danny," or words to that
effect?
A. I heard it from behind me, yes.
Page 166.
Bell - Cross
Q. And you heard those words from behind you, and where
you eventually saw Mr. Jamal was also behind you; is that right?
A. That's correct.
Q. Did you hear any scuffling?
A. No. Just --
Q. And you never saw any scuffling?
A. When I turned around he was already inside on the
floor at the point when I turned around and came around the desk at the
nurses' station.
Q. You don't know how he got on the floor?
A. I assume he was brought in by police.
Q. I mean, do you know why he was on the floor as opposed
to a wheel chair, stretcher or on his feet?
A. I think they were looking for a bed to put him in.
Q. You don't know?
A. No, I don't.
Q. They just laid him on the floor while they looked for
a bed?
A. That's correct.
Q. How long did they leave him on the floor?
A. I'd say just maybe a minute or so, not much more
Page 167.
Bell - Cross
than that.
Q. Now, I understand that you said that you walked away
for several minutes and you went back and looked at Officer Faulkner, and
then you came back and saw Mr. Jamal again?
A. No, I didn't say that.
Q. If I'm wrong I'm sorry.
A. I know I didn't say that.
Q. You walked away --
A. After I walked away from Jamal I went back over to the
room where Danny was being treated and I stayed there for several
minutes.
Q. Yes?
A. And assisted the Night Command captain and notified
his family.
Q. So you never saw him again? Mr. Jamal.
A. When he was being treated I saw him, yes.
Q. But he was --
A. Which would have been maybe five, ten, fifteen minutes
later.
Q. He was in a treatment room, then?
A. Yes.
Q. My apologies, then. When you saw him again in
Page 168.
Bell - Cross
the treatment room did you say anything to him?
A. No, I did not.
Q. So the only words you ever had with him were the words
when you first came upon him?
A. That's correct.
Q. And you said something like, well, "He shouldn't die,
you should die," or something --
A. Something to that effect, yes.
Q. You didn't say, "If he dies you die?"
A. I might have said that. I was quite angry, hurt. I
couldn't believe that somebody like that could do that to somebody
else.
Q. I understand. And you wanted him punished, did you
not?
MR. MCGILL: Objection.
THE WITNESS: That's what the Court's for today.
THE COURT: He's already answered.
BY MR. JACKSON:
Q. Wouldn't you think your testimony, certainly the
testimony you're giving here today, would be helpful in punishing him?
A. I'm just telling the truth.
Page 169.
Bell - Cross/Redirect
Q. I didn't ask you that, sir.
A. That's not for me to decide whether to punish him or
not.
Q. My question is: Wouldn't you think it would be helpful
in punishing giving the testimony you're giving today.
MR. MCGILL: Objection, sir.
THE COURT: Sustained.
BY MR. JACKSON:
Q. Did you ever discuss with your brother officers, your
wife, your girlfriend, uncle, brother, somebody, anybody, what you said
you heard this man say?
A. No, I didn't.
MR. JACKSON: No further questions, Your Honor.
REDIRECT EXAMINATION
BY MR. McGILL:
Q. Officer Bell, is it not true that consistent with the
normal procedure --
MR. JACKSON: Objection. I'm sorry. I withdraw the
objection.
BY MR. MCGILL:
Page 170.
Bell - Redirect
Q. -- when a complaint is made everybody that's even
remotely concerned with the incident is interviewed when there's a
complaint in Internal Affairs; isn't that true?
A. That's true.
Q. And are you aware of the results of the District
Attorney's investigation, sir?
MR. JACKSON: I'm sorry? Of who's investigation?
MR. McGILL: D.A.'s office, D.A.'s investigation.
MR. JACKSON: I object, Your Honor.
MR. MCGILL: May we see you at sidebar?
(A sidebar conference was held on the record as
follows:)
MR. JACKSON: The basis of my objection is, first of all,
he's asking him about Internal Affairs and now he's asking --
MR. MCGILL: Will you keep it down?
MR. JACKSON: -- he's asking him about Internal Affairs
and then he jumps to the results of the D.A.'s investigation.
MR. MCGILL: All right. Let me explain.
Page 171.
Bell - Redirect
First of all, this is the reason I'm bringing this in at
all -- it's a confusing and a collateral matter that's creating an issue
that does not exist. The reason I say that is certainly I can't find
relevance in the beating, alleged beating, in terms of voluntariness of
statements. However, it is not relevant to bring in complaints and other
things. That is not anticipated but merely a question of the usual
procedure when a complaint is made. With these complaints that are going
through Internal Affairs, as a matter of course when there is any kind of
substantial claim whatsoever with that complaint it is then directed
towards the District Attorney's office for a review. Specifically in this
case Mr. Jackson asked through Mr. Jamal or rather Mr. Jamal asked through
Mr. Jackson for the District Attorney's office to make a recommendation
with reference to the Internal Affairs interviews. We had one hundred
fifty interviews all of which defense counsel has which we were
specifically asked to review. They made a very big point of the D.A.
Page 172.
Bell - Redirect
not moving quick enough and make a decision.
As a result of the request a decision was reached, a
report was made and mailed to Mr. Jackson and, I assume, Mr. Jamal read it
as well as a carbon copy to Judge Ribner who had asked for it. Those
results are known.
It is extremely unfair. The results are that there are no
substantiated claims, no substantiated claims. The problem is once you
raise an issue like this and then you leave it hanging it gives it the
aura of some kind of truth to it. Now this is not a question of civil law,
it's not a question of civil damages, rather. It's a question of the
credibility of the various witnesses and allowing to get into the
collateral matters puts the Commonwealth at a disadvantage unless it can
stand up itself and say there were no substantial claims whatsoever given
at all. And then letting it hang, oh my God, getting some sympathy for the
defendant.
MR. JACKSON: May I respond?
MR. MCGILL: Judge, I will say at this point that I will
not ask this question and I'll
Page 173.
Bell - Redirect
leave this area alone as long as Mr. Jackson will leave
the area alone.
MR. JACKSON: No. No.
THE COURT: Can't you stipulate as to what the results
were?
MR. JACKSON: No.
MR. MCGILL: Sure.
THE COURT: If you can't --
MR. MCGILL: I will do it.
THE COURT: If he can't bring one of your people in and
show that there were no substantiated --
MR. JACKSON: Fine, because I would like to cross-examine
whoever it is who made the investigation.
MR. MCGILL: Wait a minute. You're not serious, of course,
first of all?
MR. JACKSON: If he brings him in I will.
MR. MCGILL: That is absolutely --
THE COURT: I will let you ask him the question and let's
get it over with.
MR. MCGILL: The question here is that
Page 174.
Bell - Redirect
he cannot go into that area. That's the thing. He
cannot.
THE COURT: You are asking him --
MR. MCGILL: Are you aware of the results? I think he's
aware of the results?
MR. JACKSON: From the D.A.'s office, he never said he
knew anything about that one. It was only asked of him about Internal
Affairs. That is my point.
MR. MCGILL: Judge -- will you please?
THE COURT: What's your question going to be so I can
rule?
MR. MCGILL: The point I have to make, Judge, is this: The
area should not be pursued one way or the other.
THE COURT: But make your objection at the right time and
--
MR. MCGILL: I will withdraw the question at this
point.
THE COURT: If he goes into that area again --
MR. MCGILL: I will object to him going into that area. I
want Your Honor to rule now
Page 175.
Bell - Redirect
that he cannot go into that area.
THE COURT: I don't know what he is going to bring on the
defense. As far as your witnesses are concerned, you bring your witnesses
in for a certain point, a certain purpose. I will limit him to
cross-examine for that purpose only, not to try to bring in for the
defense. What he's going to do when he comes to his defense, I don't know.
I'll have to worry about that at that time.
MR. MCGILL: I'm talking about cross-examining my
witnesses.
THE COURT: I'm talking about that.
MR. MCGILL: I want to ask a question --
THE COURT: You bring your witnesses in for a specific
purpose. I will not allow him to bring in this so-called beating or
whatever he's talking about through your witnesses at this time.
MR. MCGILL: All right. Fine.
THE COURT: If he wants to bring in the witnesses, that's
different.
MR. MCGILL: He can ask him whether he's
Page 176.
Bell - Redirect
Sobolusky - Direct
beaten anybody, that's fine.
THE COURT: I didn't say you can't do that, of course.
(Sidebar conference ended.)
MR. MCGILL: I withdraw the question. Your Honor. I have
nothing further, Your Honor. Thank you.
MR. JACKSON: Nothing further.
- - -
(Witness excused.)
MR. MCGILL: Detective Sobolusky.
- - -
DETECTIVE ROBERT SOBOLUSKY, (Badge
Number 748, Central Detective Division), having been duly sworn, was
examined and testified as follows:
DIRECT EXAMINATION
BY MR. MCGILL:
Q. Detective, on December the 9th, 1991, were you a
member of the Philadelphia Police Department?
A. Yes, I was.
Q. Where were you assigned?
Page 177.
Sobolusky - Direct
A. Central Detective Division.
Q. Did you have occasion to seize any evidence in
connection with this case?
A. I did.
Q. What was the nature of the evidence that you
seized?
A. Clothing.
Q. From whom?
A. From the defendant.
Q. The defendant Mumia Abu-Jamal?
A. That's correct.
(A discussion was held off the record.)
BY MR. MCGILL:
Q. Did you have occasion to make out a property
receipt?
A. Yes, I did.
Q. Could you mark that, please, the next number, which I
believe is C-54, and C-55? First of all, take a look at C-55. Can you
identify that exhibit?
A. Yes, sir.
Q. What is it?
A. It's a copy of a property receipt, City Property
Page 178.
Sobolusky - Direct
Receipt.
Q. Where did you see it before?
A. I made this up.
Q. Is that the property receipt in connection with the
clothing that you seized from the defendant?
A. Yes, it is.
Q. Now I will not ask you to take out all of the clothing
in that bag that's marked C-54 but I will specifically ask if you could
find in that a holster. Take that out of that bag, C-54.
All right. Leave the rest of the clothing in there in
case Mr. Jackson will want to view it. Now, would you take that -- first
of all, identify what you just took out.
A. A leather holster, shoulder holster.
Q. I'll ask that that holster be specifically marked C-56
and shown to defense counsel and the Court. I'm showing you what's been
marked C-56. Can you identify that?
A. Yes.
Q. What is it?
A. It's a black leather shoulder holster.
Q. Where did you seize that?
Page 179.
Sobolusky - Direct
A. From the defendant.
Q. Are you able to identify the defendant?
A. Oh, yes.
MR. MCGILL: Your Honor, at this point, again, there is a
stipulation between Mr. Jackson and myself that if Mr. Mumia Abu-Jamal was
here this detective would identify Mr. Jamal as the defendant, as the
individual, he took the holster from.
THE COURT: Once again I remind the jury that I have told
you that I want you to consider as evidence only that which you hear from
this witness stand and from no outside sources. However, when there is a
stipulation between counsel as to a certain fact you may accept that as a
fact. Go ahead.
BY MR. MCGILL:
Q. All right. Where did you seize the clothing from?
A. The clothing was taken from the defendant himself.
Q. All right. And where was the holster taken from?
A. From under his left arm next to his body.
Page 180.
Sobolusky - Direct, Cross
Q. And when did you do that?
A. Time?
Q. Date.
A. December 9, 1981.
Q. Where?
A. Inside the Jefferson Hospital Emergency ward.
Q. Do you know approximately when?
A. Around 5:00 a.m.
MR. MCGILL: Cross-examine.
CROSS-EXAMINATION
BY MR. JACKSON:
Q. Detective Sobolusky, did you also remove from Mr.
Jamal a jacket?
A. No. sir.
Q. Did you obtain a jacket, sir?
A. Yes, sir.
Q. You did.
A. Yes, sir.
Q. Who removed it?
A. I don't know.
Q. Let me back up. You did remove the holster,
though?
A. I helped him in removing the holster, yes.
Page 181.
Sobolusky - Cross
Q. Who helped?
A. Hospital personnel.
Q. And you didn't see who removed his jacket?
A. No, Sir.
Q. Who did you get the jacket from?
A. The floor right under the table.
Q. And who told you that it was his jacket?
MR. McGILL: Objection as to hearsay.
MR. JACKSON: I just want to know. I don't know whether
it's true or not. I would want to know who said it.
MR. MCGILL: I would like a lot of things, too, but it's
not admissible.
THE COURT: Let me see you over here.
(A sidebar conference was held on the record as
follows:)
THE COURT: Are you saying that this is not his
jacket?
MR. JACKSON: I'm not, Judge. I just want to know -- I
don't know.
THE COURT: He says that it was.
MR. MCGILL: It's hearsay, that's all, Judge. Maybe he
doesn't know, maybe he does. I
Page 182.
Sobolusky - Cross
don't want to develop inconsistencies with physical
evidence.
MR. JACKSON: Judge, I'm not asking him for the truth
that's being said. I want to know if anyone told him. I'm not necessarily
contesting it. I want to find out at this point and later on it may be
relevant, it may not. I have a right to ask whether it's true or not.
MR. MCGILL: It's hearsay.
MR. JACKSON: I'm not asking it for the truth.
MR. MCGILL: Then it's not relevant.
MR. JACKSON: It is. The clothing where he's shot?
MR. MCGILL: Then that's the truth.
MR. JACKSON: That's not.
THE COURT: Ask him why he picked it up.
MR. JACKSON: And then he's going to say because I was
told. I am not trying to get -- again, that seems to be more clearly
--
THE COURT: It may have been because it was just
underneath that table where he was
Page 183.
Sobolusky - Cross
lying.
MR. JACKSON: That's what I'm trying to find out.
THE COURT: Was the jacket cut open like by --
MR. MCGILL: I don't know if the jacket was.
MR. JACKSON: The shirt was.
MR. MCGILL: The shirt was.
MR. JACKSON: That's why I'm saying the easiest way to do
it -- he didn't just go in and pick up the jacket. I'm sure somebody said
something, and I want to find out who it was to make sure we have the
chain of custody. That's what I'm concerned about.
MR. MCGILL: I object. It's hearsay.
MR. JACKSON: How about the chain of custody?
MR. MCGILL: It's not admissible evidence.
THE COURT: Then I won't admit it in. Just because he's
identified it doesn't mean I'm going to admit it into evidence. If he
doesn't
Page 184.
Sobolusky - Cross
sustain this chain of custody you're talking about it's
at his peril but you can't later on use the jacket.
MR. JACKSON: I can't find out who told him? I'11 ask him
why he has the jacket, then.
MR. MCGILL: It's all much ado about nothing. The fact is
if the jacket is underneath the thing and there's nobody else in the room
--
MR. JACKSON: He's testifying. I don't know that.
THE COURT: He said it was laying there.
MR. MCGILL: I'm not testifying. I'm saying it at sidebar.
And there's no one there in the room and he's there, obviously there's an
inference that can be drawn that that is his jacket. It's not all the
chain of custody, it's a question of weight.
THE COURT: Somebody may not have told him. Did he say
somebody told him?
MR. JACKSON: I will ask.
THE COURT: Ask him why he picked it up. He might say,
"Because I thought it was his."
Page 185.
Sobolusky - Cross
MR. JACKSON: Fine. That's all I wanted to know.
THE COURT: Okay.
(Sidebar conference ended.)
BY MR. JACKSON:
Q. Detective Sobolusky, why did you pick up the
jacket?
A. Because I was there to gather evidence, any kind of
evidence.
Q. And so you assumed that the jacket was evidence?
A. Yes.
Q. What about his shirt? Do you have the jacket?
A. Yes, sir.
Q. Could you show that to me, please? Now that jacket is
in substantially the same condition that it was in on December the 9th,
1981?
A. Yes, sir.
Q. Was there any picture on the back of that jacket?
A. I don't recall.
Q. If there was a picture wouldn't you recall? You said
substantially the same now as it was then.
A. Yes.
Q. So if there was a picture on it then there'd be
Page 186
Sobolusky - Cross
a picture on it now?
A. Yes.
Q. There is no picture on it now, would you agree? In the
back of the jacket or anywhere?
A. I agree.
Q. Pardon?
A. Yes, sir, I agree.
Q. There's no picture?
A. There's no picture.
Q. Fine. Now Officer, at the top of the right chest of
the jacket could you tell us what you see there?
A. I don't see anything.
Q. How about the left chest, sir?
A. Nothing unusual.
Q. Any blood on the jacket, sir?
MR. MCGILL: I have to object, Your Honor. He's not a
chemist.
BY MR. JACKSON:
Q. Any stains, any holes anywhere in the jacket, sir?
A. Some residues here. I don't know if it's blood or
what.
Page 187.
Sobolusky - Cross
Q. Fine. I'm not going to ask you to tell us whether it's
blood or Kool-Aid or anything else.
A. There are stains on there, yes.
Q. Fine. Any holes in the jacket?
A. Not that I can see.
Q. Okay. You picked that up right off the floor of the
hospital?
A. That's correct.
Q. Who was in the hospital room with you? If you can
recall.
A. There were several, maybe two, three people, hospital
personnel.
Q. No other police personnel?
A. Not that I remember.
Q. Now, did you obtain a shirt belonging to Mr.
Jamal?
A. Yes, that's correct.
Q. Do you have that, sir?
A. Yes.
Q. Would you take that out for us, please?
A. An outer shirt or --
Q. You can take them all out because I'm going to ask you
to get to all of them.
Page 188.
Sobolusky - Cross
A. Okay.
Q. Now, any stain of any sort or any holes in the shirt?
For the record, the shirt appears to be a dark blue flannel shirt; is that
correct?
MR. MCGILL: I would object, Your Honor. Let the jury
--
MR. JACKSON: Fine. My apologies.
BY MR. JACKSON:
Q. Can you describe it for the record, sir?
A. It appears to be a dark blue flannel shirt.
Q. Thank you, sir. Can you tell me if there are any
stains or holes in the shirt?
A. Well, there are stains. I don't know about holes. It's
torn.
Q. Where would it be torn, sir?
A. Looks like a sleeve is torn.
Q. And what sleeve would that be, sir?
A. Looks like the right sleeve, looks like it was cut
away.
Q. See any other cuts or holes in the shirt?
A. No, I can't see any.
Q. And that shirt is in substantially the same condition
that it was in on December the 9th, 1981?
Page 189.
Sobolusky - Cross
A. That's correct.
Q. By the way, any picture on the front or back of that
shirt?
A. No, sir.
Q. You have a polo shirt there, sir?
A. Pardon?
Q. You have a polo shirt or Tee shirt inside there?
A. This appears to be a polo shirt or Tee shirt.
Q. Did you remove that from Mr. Jamal?
A. No. I didn't. I was present when it was removed.
Q. By hospital personnel?
A. Yes.
Q. Do you recall whether in fact, or do you know whether
in fact it has any holes in it? I'm not trying to force you to handle it,
but do you remember or do you see any holes in it?
A. I don't see any holes --
MR. MCGILL: I would object. I think the appropriate party
would be the chemist who will testify since they've done tests on the
shirt. I would object. It's unfair to ask him.
MR. JACKSON: It's unfair to ask him if there's a hole in
it?
Page 190.
Sobolusky - Cross
THE COURT: Come over here.
(A sidebar conference was held on the record as
follows:)
MR. McGILL: Judge, the objection goes to this: The
chemical lab does significant amount of work on each of these garments
--
THE COURT: Did he turn all of this over to the chemical
lab?
MR. McGILL: Yes.
THE COURT: Why didn't you bring that out?
MR. MCGILL: Why didn't I bring it out? Of course he had
turned it over.
THE COURT: But if he had said that -- he's assuming that
he had control of it.
MR. MCGILL: I don't think he is.
MR. JACKSON: I'm assuming that he picked it up.
THE COURT: You know what he did, took whatever they gave
him, went to the chemical lab and turned it over.
MR. JACKSON: I think he looked at it.
THE COURT: Why don't you ask him?
Page 191.
Sobolusky - Cross
MR. JACKSON: I did.
THE COURT: You ask him if he sees a hole now.
MR. JACKSON: Fine. I will ask him if he saw a hole.
MR. MCGILL: The objection I have -- seriously, let's get
moving -- the objection I have is since the chemical lab cut it open
--
THE COURT: You concede that.
MR. MCGILL: It's putting him in a very bad position.
MR. JACKSON: I will withdraw the question.
MR. MCGILL: I keep on hearing two voices. I will take Mr.
Jackson that Tumosa will testify and he will have a field day with Mr.
Tumosa, if he wishes.
MR. JACKSON: Let me ask him what he remembers, if
anything, when he took it from him.
THE COURT: Let me say this: If all he did was take the
clothing, put it in a bag and cart it off, that's the end of it. He
didn't
Page 192.
Sobolusky - Cross
do anything to it.
MR. JACKSON: I'm not saying he did anything to it.
THE COURT: Why are we going into all of this? Let's find
out. Ask him.
(Sidebar conference ended.)
BY MR. JACKSON:
Q. Detective Sobolusky, you saw the shirt removed from
Mr. Jamal? The shirt or polo shirt?
A. To the best of my knowledge, yes.
Q. Okay. And what if anything did you then do with the
shirt? It was given to you?
A. Yes.
Q. What if anything did you then do?
A. I gathered everything up and put it in a plastic
bag.
Q. Okay. Let me ask you this: Did you examine any of
those items in a hospital room?
A. No, sir.
Q. Didn't look at them at all? Just took them from him
and put them in a bag?
A. I may have looked at them but I didn't scrutinize
them.
Page 193.
Sobolusky - Cross, Redirect
Q. So then it would be fair to say that you're really not
in a position to say that they're in the same condition now that they were
in December the 9th?
A. They're in the same condition.
Q. They're in the same condition?
A. As far as I know, yes.
MR. JACKSON: Thank you. I have no further questions.
REDIRECT EXAMINATION
BY MR. MCGILL:
Q. Detective, what did you do with the bag of clothing
once you gathered all the clothing together and put it in the bag?
A. I recorded them on the property receipt and submitted
them to the chemical lab.
Q. And did you not submit it to the chemical lab for
purposes of testing?
A. Yes, sir.
MR. MCGILL: I have nothing further. Thank you,
Detective.
MR. JACKSON: I have nothing further.
- - - -
(Witness excused.)
- - - -
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