Doctor C.
Tumosa
3
Page 3.
(At this point, there was a side bar conference with the
Court, Mr. McGill, Mr. Jackson, and the defendant, which proceeded as
follows:)
THE COURT: Mr. Jamal, before the Court opens for today's
session, I would like to know whether you have changed your mind and
whether you will behave and be quiet during the proceedings and not
disrupt the Court in the ordinary process of these proceedings.
THE DEFENDANT: Before the Court opened its session, I
instructed your messenger to inform you that I wanted to confer with
counsel of my choice, John Africa, Teresa Africa, or Janette Africa.
THE COURT: They are not here.
THE DEFENDANT: I will wait until they arrive.
THE COURT: Then, in other words, you are willing to sit
in there until they arrive and then make your decision?
Page 4.
THE DEFENDANT: Indeed, I have no problem with that.
MR. MCGILL: As I understand it, what the defendant is
saying is that he wishes to confer with them when they arrive. I don't
know whether he means that he does not want to sit here in court --
THE COURT: Until they arrive.
MR. MCGILL: Does the defendant want to sit here and
listen to the trial and just confer with them when they arrive?
THE DEFENDANT: I don't want to sit out here and listen to
the trial. I would like to confer with my counsel, John Africa, Teresa
Africa, and --
THE DEFENDANT: Exactly.
MR. MCGILL: Well, Your Honor, perhaps the Court could
again instruct the
Page 5.
defendant of the importance of his being present at his
own trial so that he can hear evidence and advise Mr. Jackson or provide
information and it might help him in his defense in his case. Mr. Jamal is
very close to me and has to be able to hear what I am saying, but, Your
Honor, it is important, naturally, that a defendant charged with such a
serious crime be, in fact, present for his own sake. Of course, if he
wishes not to be present, he does not have to be. The reason for his being
present, listening to all the evidence and advising his counsel -- he
would know more about the case than anyone. He certainly would be in a
position to assist Mr. Jackson in asking questions and developing his
defense. I think it is important that the defendant be made aware that,
again, he recognizes that by not being in the courtroom that he literally
is waiving or giving up that opportunity.
Page 6.
THE DEFENDANT: I think I made my position clear.
THE DEFENDANT: Unless the District Attorney is now
functioning as my defense counsel, and I am sure that he is not, my wish
is to confer with my family, my counsel, John, Teresa and Janette Africa,
before I come into the courtroom.
THE COURT: I think that what the District Attorney is
saying is that he wants you to realize that you are giving up certain
important rights, your right to be present, to hear the evidence that is
being presented against you, and to advise Mr. Jackson of whatever you
think might be important in order for him to properly defend you. That is
what he is saying.
THE DEFENDANT: My proper defense can be achieved by John
Africa. That is my
Page 7.
position.
THE COURT: In the meantime, regardless of what he is
telling you, you are going to be missing your rights; your choice is not
to be present in this courtroom until you have had an opportunity to talk
to the representatives -- what are their names?
MR. MCGILL: John Africa is one.
MR. JACKSON: He indicated that he would like to speak to
Janette Africa or Teresa Africa first before he makes a decision as to
whether or not he wants to be in the courtroom. That is what he is
saying.
THE COURT: And all I'm saying is that they are not here
and I don't know if they are going to be here today. So --
MR. MCGILL: Well, Your Honor, I would have no objection.
Of course, I understand that the Court has to move this case forward. It
has been close to a month
Page 8.
now, maybe three and a half weeks and there have just
been constant delays. So, I can appreciate why the Court would want to
start right now since it is now 10:20 on a Saturday.
However, what I would like to say to the Court is that
the Commonwealth would have no objection that if, as soon as these people
that he has mentioned arrive, their presence would be made known to Mr.
Jackson. I would have no objection if at that moment we would have a
recess and they would have an opportunity to confer with the defendant and
then perhaps that would change his mind about coming out and being present
at his trial.
THE COURT: That is perfectly alright, as long as somebody
lets me know when they come in. Is there anything else?
MR. MCGILL: Yes, for the record, I have already mentioned
several times that John Africa and the other people, Janette
Page 9.
Africa and Teresa Africa, are not members of the Bar.
They are not attorneys for the Commonwealth of Pennsylvania.
THE COURT: They are his relatives, that's all, or his
intermediary between himself and supposedly --
MR. MCGILL: That's right, isn't it, Mr. Jackson; they are
not attorneys?
MR. JACKSON: I don't know that for sure.
THE COURT: I am pretty sure that they are not.
MR. MCGILL: Are they attorneys?
THE DEFENDANT: I think you should ask them that.
MR. MCGILL: We are not getting information from it; so, I
can assume that they are not. However, I do know from my own knowledge,
having been in contact with our office, that both people, Teresa Africa
and Janette Africa, both women have been in this room often through the
jury selection,
Page 10.
Motion to Suppress, as well as the trial. If they are the
same people that he is talking about, they are not licensed attorneys,
members of the Bar of the Commonwealth of Pennsylvania.
THE COURT: Alright.
MR. MCGILL: Doctor Tumosa is my next witness.
Q. Does your unit collect trace evidence relevant to the
neutron activation tests?
A. No, sir. That is the function of the Mobile Crime
Detection Unit.
Q. That is their function to do that?
A. Yes. The detective division may ask for it through the
Mobile Crime Unit. We will often advise them as to whether or not that
should or should not be done.
Q. In this case, sir, did you advise them as to whether
or not that should or should not be done?
A. I wasn't asked.
Page 54.
Tumosa - Cross
Q. No one asked you?
A. That is correct.
Q. Now, although the collection is done by -- the Mobile
Crime Lab, who actually does their test? Is it done in Philadelphia?
A. No. sir. They usually give the kits to us and they
forward them to the Federal Bureau of Investigation.
Q. As far as you know, no kit was given to you?
A. That is correct, sir.
Q. By the way, for the benefit of the jury, could you
tell us what the neutron activation test is?
A. Basically, it is a way of looking for the residues of
the discharge of a firearm. If an individual fires a handgun or a rifle,
whatever, a certain amount of residue from the primer which we mentioned
earlier also deposits itself upon the hand of the individual firing the
weapon. There is a way, using a nuclear reactor, to make a determination
as to whether or not what was present on the hand of the individual is
consistent with the discharge of the
Page 55.
Tumosa - Cross
firearm by that individual.
Q. How is this trace evidence collected?
A. Basically, it looks like a cotton swab and a five
percent nitric acid solution is placed on it, and it is wiped over the
hands of the individual.
Q. How long would you expect that trace evidence to be
present assuming a weapon had been fired by that individual?
A. In a living individual?
Q. Yes.
A. In a living individual who is not active, up to about
four hours.
Q. What about an individual who is not living?
A. Depending upon whether or not any moisture is at the
scene, it may last for many hours.
Q. When you say, "many hours," would that be in excess of
ten hours?
A. That's possible.
Q. In excess of twenty hours?
A. Possibly a day would be more like it.
Q. Twenty-four hours?
Page 56.
Tumosa - Cross
A. That is a good round number, twenty-four hours.
Q. Now, one other thing. Would your unit be responsible
for trace metal detection?
A. What kind, sir?
Q. For whatever type of trace metal detection test would
be conducted.
A. We did a trace metal detection test for lead.
Q. Forgive my ignorance, assuming that you want to
determine whether or not, in fact, an individual held a weapon, it is my
understanding that you can conduct what is called a trace metal detection
test is that correct?
A. One can do that. There are many difficulties with the
test, primarily in that it is not very useful.
Q. Well, you are saying that it is not very useful.
A. No, I am saying that it doesn't give reliable results,
uniformly reliable results. Many procedures are published in literature
which work very well in the laboratory, but when you take them into the
field, they
Page 57.
Tumosa - Cross
don't work. That is one of the particular tests.
The problem with it is that once somebody has touched
something, they don't walk around with their hands in the air or
protected. The instant someone touches their trousers, wipes their hands,
or starts to sweat, bleed, rubs their hands in their hair, immediately the
test becomes invalid because of contamination. So, in cases where you have
individuals who are active, in which you have a series of events which are
fast moving, fast paced, the test becomes, for all intents and purposes,
invalid. There is no way you can interpret any results that you get.
Q. Suppose a person is alleged to have a weapon in his
hand and he is then inactive, unconscious?
A. Laying nowhere with no one around?
Q. No, just say that he is not going to wipe his hand; he
is not going to move his hand; he is not active. He is not doing
anything.
MR. MCGILL: I object to that.
THE COURT: I thought he explained it to you just a second
ago.
Page 58.
Tumosa - Cross
MR. JACKSON: He told me with regard to people who are
active. I am asking him now about an inactive person.
THE COURT: He said if you hold your hands so that nothing
touches them --
THE WITNESS: What do you mean by "inactive"?
BY MR. JACKSON:
Q. A person who is doing absolutely nothing with his
hands at all.
THE COURT: Answer that.
THE WITNESS: Well, if a person was lying somewhere doing
nothing with his hands protected from the environment in some fashion or
another, there might be some residue there, yes.
BY MR. JACKSON:
Q. Have you conducted these trace metal detection tests
on people's hands?
A. Not to any great extent.
Q. How many times have you done it?
Page 59.
Tumosa - Cross
A. Three or four.
Q. When was the last time you did it, sir?
A. Several years ago.
Q. When was the last time you used or reviewed the trace
metal detection test kit?
A. Several years ago.
Q. Have you been kept abreast, sir, of the new
developments in the trace metal detection test within the last two years
by Sirchie Manufacturing Company?
MR. MCGILL: I object to this. This is beyond the scope of
the immediate testimony.
THE COURT: I will let him answer if he can.
MR. MCGILL: Yes, sir.
THE WITNESS: I am aware of the basic test. I am not
aware, you know, of whether or not anything has basically changed. The
test is inherently not a very good one and whether or not you profit on it
doesn't change the inherent instability of the test,
Page 60.
Tumosa - Cross
in my opinion. It doesn't work if you grab a piece of
metal like this or put your hand on a car or touch a firearm or touch a
person who has touched a firearm or if you put your hand on the clean city
streets or whatever. The inherent concept behind the idea is very good if
you are dealing in a laboratory situation or the classical locked room
mystery where the body is found in a locked room with a firearm in its
hand. The real world is much more complex. I would not like to do the test
and have the fate of any individual depend upon the results of that
test.
BY MR. JACKSON:
Q. Well, I will get back to that, whether or not you
would want the fate of an individual to depend on it. Assuming we have the
suitable conditions that you talked about, would it be able to determine
if someone held a gun in his hand?
Page 61.
Tumosa - Cross
Q. If a trace metal detection test is conducted upon a
person who has held a gun in his hand, assuming that the person has not,
for the moment at least, has not touched anybody, has not washed his
hands, has not done any of those things that you previously described,
would, in fact, the trace metal detection test give us a result showing
that, indeed, the person had some metal, some weapon, some object, in his
hand?
MR. MCGILL: I object to that. That is assuming facts
which not only are not in evidence, but are almost impossible.
THE COURT: May I see you?
(At this point, there was a side bar conference with the
Court,
Mr. McGill and Mr. Jackson, which proceeded as follows:)
THE COURT: The reason I am concerned about this is
because the factual situation in this case is evidently that he did touch
a lot of things.
MR. JACKSON: I am talking about
Page 62.
Tumosa - Cross
Officer Faulkner.
MR. MCGILL: Even with the treatment that he had over
there; they tried to save his life.
THE COURT: We don't know what they did in the hospital.
They could have wiped him down before they operated. They could have done
a lot of things.
MR. JACKSON: Your Honor, I understand that, but what my
argument would be is that there are or may be a number of tests that could
have been conducted to confirm one circumstance or another and they were
not doing it.
THE COURT: However, the fact is that they did not do it
and in his opinion he doesn't give much credence to it.
MR. JACKSON: I am going to get into that because he is
wrong.
THE COURT: That is your opinion. He is giving his
opinion.
Page 63.
Tumosa - Cross
MR. JACKSON: I understand that. That is the reason for
it. I wasn't talking about Mr. Jamal. I think I want to --
THE COURT: Even with the police officer, we don't know
what happened. We know that people picked him up. We don't know whether
they touched his hands or all of these things.
MR. JACKSON: I can bring in experts as well as literature
--
THE COURT: However, the fact still remains that nobody
took that test of this police officer.
MR. JACKSON: That is basically what I want to show.
THE COURT: It is admitted.
MR. JACKSON: Your Honor, the problem I have and the
reason I asked Mr. McGill about it is because I am also trying to find out
who is responsible for taking the test and the reason I wanted to
Page 64.
Tumosa - Cross
ask him about it is because he has the expertise to
explain what the trace metal detection test --
MR. MCGILL: That is true. He is the most expert of
anybody.
THE COURT: And he has done that.
MR. JACKSON: However, he would not be the one,
apparently, to conduct the test, obviously. It would be the Mobile Crime
Lab or the assigned detective.
MR. MCGILL: No. The Mobile Crime Lab gets the swab.
MR. JACKSON: That's the neutron activation test.
THE COURT: You have to understand; here is a police
officer shot. They rush him to the hospital. Do you think they are
concerned about some kind of test to find out whether he fired a gun or
not? They are trying to save his life, get him into the operating room. He
dies. They take him
Page 65.
Tumosa - Cross
to the morgue. He is over at the morgue. They are
performing an autopsy. Nobody is thinking about taking a test about his
hands because they just don't think about it.
MR. JACKSON: Your Honor, in all due respect, I understand
that, but that is not my interest. In all due respect, in terms of how it
relates to --
THE COURT: Mr. Jackson, the fact still remains that they
took no such test. It doesn't make any difference. They did not take it in
this case. So, what difference does it make? Do you want to argue to the
jury that they should have done it? Fine.
MR. JACKSON: Yes, I do want to argue about that and I
want to lay the basis for it.
THE COURT: The fact remains that they didn't do it.
MR. JACKSON: And I want to call it sloppy police work and
it is sloppy because
Page 66.
Tumosa - Cross
he is accused of shooting a policeman.
MR. MCGILL: How much longer will you be?
MR. JACKSON: I'm almost done.
MR. MCGILL: If it is only a couple more questions, I
won't object. On redirect, I will ask a couple of questions to clarify it.
He was going to call him as his own witness for this so, in essence, I am
trying to move the trial along. So, allow it in cross examination as long
as it doesn't go for another --
MR. JACKSON: No.
(Conclusion of side bar conference.)
BY MR. JACKSON:
Q. If you had an individual touch a gun right now, I pick
up a gun and I hold it for a few seconds or so, and you conduct a trace
metal detection test, it would show that I held a metal object or gun or
weapon: is that right?
A. Not necessarily.
Page 67.
Tumosa - Cross
Q. Why not, sir?
A. It would depend upon the metal present in the frame of
the weapon, whether or not there was oil on the weapon. It would depend on
the condition of your hands to start with.
Q. Are you familiar with the Sirchie (ph) Metal Detection
Test Kit?
A. Not the way you described it, no, sir.
Q. The trace metal detection kit that is manufactured, I
guess, or produced or something -- I know that Sirchie Incorporated (ph)
is one, the name of a manufacturer.
A. Yes. sir.
Q. Are you familiar with the kit that they put out?
A. No. I am familiar with some of the older things that
were done. I'm not sure that I am familiar with their new kit.
Q. So, when you test --
A. I have not seen their catalog recently.
Q. So, when you are testifying with regard to
Page 68.
Tumosa - Cross
your understanding of the reliability of the test, you
are basing it primarily on, number one, your three experiences of
conducting it in the past, the last time being one year, as well as the
general information that you know; is that correct, sir?
A. Well, I am basing my opinion upon the nature of the
test itself. It is very nice to market a kit to do anything. The tests, I
believe, are meant to be presumptive tests and my understanding of the
Sirchie Company (ph) is that the test kits they sell are meant to be
presumptive tests. They are not meant to be all inclusive or to be certain
tests. They are meant to be investigative aids or an indication of
something.
Q. They would confirm --
A. No, sir, it would be an investigative aid. It would be
an indication of something. That is a bit different than talking about
something scientific or practically certain.
Q. It would be an indication of what, sir?
A. If it was a positive test, it would be an indication
that the individual held a metal object of
Page 69.
Tumosa - Cross
a particular characteristic.
Q. Since you are saying that that is the nature of the
test, could you tell us what the Sirchie (ph) test that you are unfamiliar
with would produce? How is it that you can tell us what this Sirchie (ph)
kit will produce without being familiar with the kit itself? I am not
criticizing you. I just don't know.
A. The philosophy behind it, according to an L.E.A.A.
publication, is to show whether or not an individual held a particular
metal object in his hand. The problem is that metal is a very common part
of our life and the more common something becomes, the less valuable it
becomes as evidence or at least valuable as an indication of evidence.
The philosophy behind it -- I can't speak for the
philosophy of the Sirchie Company, but I can understand, I can speak of
what appears to me to be the philosophy behind it, which is that it is an
investigative aid. If you have a given set of circumstances, for example,
a person sweating over a bar, trying to open a window, then there is maybe
a
Page 70.
Tumosa - Cross
good chance that after two or three minutes of hard
physical contact that there will be some metal residue present on an
individual's hand to describe or to help describe whether or not that
individual had opened a window. To me, it seems that if the individual was
working that hard in that particular set of circumstances that there would
be other types of evidence which would be more unequivocal to prove that
set of events. To me, the detection of metal and residues on the hand does
not lead to any useful information, whether or not it is positive or
negative.
Q. To you?
A. Well, I perform the tests, sir; so, I have to use my
basis.
Q. However, you are not responsible for the
investigation; in other words, you are saying that it would not be useful
to you, as an example in this case, whether or not Officer Faulkner had a
gun, would it?
MR. MCGILL: Objection. That is not what he said.
MR. JACKSON: I don't think so.
Page 71.
Tumosa - Cross
He is testifying --
THE COURT: Don't argue.
MR. JACKSON: Fine.
THE WITNESS: To answer your question --
MR. MCGILL: I would object, Your Honor, and I ask for a
ruling.
THE COURT: Rephrase your question.
BY MR. JACKSON:
Q. You are saying, if I understand you correctly, sir,
that you are not interested in the value of the test. Tell me what you
said because --
A. Okay. If I wanted to determine whether or not Officer
Faulkner had a gun, there would be other ways to do that.
Q. Such as?
MR. MCGILL: I would object to that, sir. I think it is
definitely beyond what we immediately got involved in and what was done or
what wasn't done.
Page 72.
Tumosa - Cross
MR. JACKSON: I can bring that back in at a later date. It
is just whether he wants me to do it now or later.
THE COURT: Just ask the question.
BY MR. JACKSON:
Q. What other ways, sir?
A. If the question were to arise, we would have certain
descriptions of his clothing. We would have, certainly, other
investigative aids through the detective division to explain, since he was
issued a firearm, where that firearm might be. We would then have an
examination of the firearm, for example, to determine whether or not there
was a presence of paint, for example, blue carbon, which is what the
police vehicles are painted with. We would then check the revolver to see
whether or not any of that was present on there which would indicate that
it was in a police vehicle. We would then look at the firearm to check
whether there were fibers present from his clothing, paint chips present
from his home. There would be a number of other avenues of investigation
which we would
Page 73.
Tumosa - Cross
have used to determine that fact.
Q. Maybe you misunderstood me.
In order to determine whether Officer Faulkner held a gun
on December the 9th, what I want to know is what test you would perform in
order to make that determination.
A. There is no test nor could there ever be any test
short of having a photograph, an eyewitness or some other event of
recording visually, perhaps, what went on.
Q. So, you are saying that the trace metal detection test
would not provide you with that information?
A. It would never provide it, whether it was positive or
negative.
Q. The test resulted in a showing that, indeed, the
officer held some metal object; would that not be some indication --
A. It would not prove unequivocally, which is what you
are asking here.
Q. You are not letting me finish my question, sir.
Page 74.
Tumosa - Cross
Would that not be some indication that he held some heavy
metal object or some metal object?
A. Yes.
Q. So, you indicate that it would be an investigative
aid; that would certainly provide us with some additional information in
making the determination that we have to make; isn't that true?
A. It would provide information; whether it would be full
information or not is another question.
Q. I understand that it is not useful to you. Now, isn't
it a fact that under normal circumstances when one holds a metal object
you could expect to receive or obtain the results up to thirty-six hours,
normally?
A. It would depend.
Q. Well, you referred to this L.E.A.A. publication of
trace metal detection tests and they have a series of tables and charts
and graphs in there. It is my understanding, and you can correct me if I
am wrong, but there was an indication that this trace
Page 75.
Tumosa - Cross
metal detection test could be taken up to as long as
three days, but the average is thirty-six hours that you could take this
test and get results.
A. Under laboratory conditions, yes. You could probably
go longer than that under laboratory conditions.
Q. Well, they were obviously not laboratory conditions in
that there was a range of time that the trace metal detection test could
be used. If they were all under laboratory conditions, I would assume
touching the same object, they would all come out to the same time.
A. That is a big assumption, sir.
Q. I realize that. Why would you assume that it is under
laboratory conditions?
MR. MCGILL: I object to anything further. It is very much
beyond.
BY MR. JACKSON:
Q. Do you know if it was under laboratory conditions,
then?
A. I don't know if it wasn't. I would have to
Page 76.
Tumosa - Cross
be certain of my results. I can't sit here and make
assumptions about that.
Q. I understand that. I am just trying to clarify it so
that we fundamentally understand the value or, in your view, the lack of
value of the trace metal detection test.
Moving along, sir, you indicate that if, in fact, someone
had a metal object and he rubbed it on his hand, that would have an impact
on the test?
A. It might, yes.
Q. What do you mean when you say, "It might"?
A. You don't know. The problem with this type of evidence
that you are describing is that there is no control over what happened. If
I were to rub a metal object and place my hand here, the amount of time--
that detection might go on for quite some time. If I shook hands with
another individual, it may or may not, depending upon the porosity of the
other person's hand, whether he was sweating, whether I was sweating,
anyone of a variety of circumstances, it may or may not be
Page 77.
Tumosa - Cross
transferred. There are too many variables. The purpose of
science is to remove as many variables as possible to make a certain
"judgment" or opinion. When you have a phenomena, when there are so many
variables, none of which can be controlled, you have to be very selective
and very sure of what you are doing in order to be able to draw a valid
conclusion from the results.
Q. Doctor Tumosa, again, you can correct me if I am
wrong, I just tried to read up on this book, I guess, for the second or
third time, the same L.E.A.A. publication you have talked about and they
gave various examples of what impact certain activities would have on this
test. One of the indications was that an individual who held a gun or a
weapon or a heavy metal object that, indeed, even if that individual
washed his hands, it would have no appreciable impact on the test. You are
telling me that if you shook somebody's hand that that would have an
appreciable impact on it.
A. It may or may not.
Q. It may or may not?
A. You don't know. I don't think anyone knows.
Page 78.
Tumosa - Cross
Q. So, you are saying, in effect, that what this
publication suggests, and I am not going to say they said it explicitly, I
don't remember the words, but when they suggested that washing the hands
has no substantial or appreciable impact on the results of the test, you
are saying that they don't really know?
MR. MCGILL: I have to object. First of all, we don't have
a copy of this thing.
MR. JACKSON: I can get a copy.
THE COURT: If he understands, let him answer.
BY MR. JACKSON:
Q. Do you understand my question, sir?
A. I think I can make a statement that at least will
clarify my position.
Q. If you could, answer my question. Unfortunately, you
are not permitted to just make statements. You have to answer my
question.
A. I know, counselor.
Q. Answer my question.
Page 79.
Tumosa - Cross
A. I think the statement will answer your question which
is that there is a difference between a laboratory study and a
publication, a publication and the real world. The events which occurred
that night which we are trying to shed light on is a real world event. A
laboratory study financed by L.E.A.A. is not the real world.
Q. I understand that.
A. So, the statements in the L.E.A.A. publication are not
reflective of the real world. They are reflective of a study from that
study, the implication then being that there may be at some time some
impact upon the real world.
Q. So that I can address your suggestion, the results
were not the results taken from a number of F.B.I. cases, were they?
MR. MCGILL: I object to anything further.
MR. JACKSON: Your Honor, he is saying that it is just
laboratory work and I want to show that it wasn't, that they were
Page 80.
Tumosa - Cross
all actual cases.
MR. MCGILL: Objection.
THE COURT: I will see counsel at side bar.
(At this point, there was a side bar conference with the
Court,
Mr. McGill and Mr. Jackson which proceeded as follows:)
THE COURT: Mr. Jackson, I feel that I let you go far
enough. This is going into an argument section here. You have to be
practical.
MR. JACKSON: I know.
THE COURT: This officer held a flashlight in his hand,
evidently, maybe even used it. I don't know what he did. He might have
touched his gun numerous times that night. So, even if they had taken it,
it probably would have come out positive, but it wouldn't be proof, as he
says, it would not be conclusive proof that he had the gun that shot the
defendant.
Page 81.
Tumosa - Cross
MR. JACKSON: However, Your Honor if it came out negative
-- also, he is wrong with regard to this trace metal detection test, but
--
THE COURT: You are going to have to get somebody else in
here. You get your expert.
MR. JACKSON: Alright.
THE COURT: Whether he is right or wrong isn't going to
resolve this case at all because the simple fact is that nobody made this
test. So, what difference does it make? We are just going to stand here
and argue all day about this and we are not really getting anyplace.
MR. JACKSON: Fine, sir.
THE COURT: It doesn't mean anything in this case.
MR. MCGILL: I have some questions on redirect since it
has been brought out to a certain degree and I haven't touched upon
it.
Page 82.
Tumosa - Cross
MR. JACKSON: Maybe it shouldn't be continued at all.
MR. MCGILL: No, not at all. You are not going to drop
fifteen minutes of questioning without responses.
THE COURT: This is stupid. It has nothing to do with this
case.
MR. JACKSON: I understand your position.
THE COURT: My position is that it wasn't done. Whether it
was somebody's fault or not, it has nothing to do with this case.
MR. JACKSON: I am not so sure.
THE COURT: It is strictly conjecture as to what the
outcome would be.
MR. JACKSON: That may be conjecture--
THE COURT: There is so much other evidence in the
case.
MR. JACKSON: I understand that and it is the evidence
that is not here which seems to be beneficial to the defendant and
Page 83.
Tumosa - Cross
that is what I am pursuing.
THE COURT: There isn't any. The only evidence is the
three people there, Mr. Cook, his brother, the defendant, and the police
officer. Let's not argue at this time.
MR. JACKSON: Alright.
(Conclusion of side bar conference.)
BY MR. JACKSON:
Q. Doctor Tumosa, we are going to leave the trace metal
detection test until a later time, perhaps. Let me just finish up with
just one other matter, sir. Referring to page four of your report and
property receipt number 850640, could you read that to us, sir?
A. Property receipt number 850640, the notation being
that items were removed from a 1966 Volkswagen. PA11675T: item number one,
two saline swabs stained with human blood, type which could not be
determined. Item two, a piece of blue seat cover from the driver's side.
Item three, piece of blue seat cover from the passenger's
Page 84.
Tumosa - Cross
side. Item four, sweepings from the left side floor. Item
five, sweepings from the right side floor. No blood was detected on items
two through five.
MR. JACKSON: Your Honor, there would be a stipulation at
this time by and between counsel that Sergeant Cameron, if he were called
to testify, would indicate that item number one containing the blood was
found on the right front fender of the Volkswagen five inches from the
hood and one foot, eleven inches from the front right door of the 1966
Volkswagen.
THE COURT: Once again, ladies and gentlemen, I told you
that you could only take as evidence that which we hear from this witness
stand. When there is a stipulation between the attorneys, you can take
that as a fact.
BY MR. JACKSON:
Q. You did test these other items, numbers two through
five, for blood: is that right?
Page 85.
Tumosa - Cross
A. That is correct.
Q. You found none?
A. Right.
Q. Again, were you specifically asked to test for blood
or did you simply make the decision to check for blood?
MR. MCGILL: Objection.
THE COURT: Go ahead.
THE WITNESS: I don't recall, Your Honor, to be
honest.
MR. JACKSON: I have no further questions at this
time.
(REDIRECT EXAMINATION)
BY MR. MCGILL:
Q. Doctor, in reference to primer lead and nitrates, when
there are primer lead deposit residues on a garment as you have indicated
in your report through your examinations, and no nitrates are present,
what would be the reason for that?
A. Well, there would be a number of reasons. Usually when
we find that to occur, we find that some
Page 86.
Tumosa - Cross
kind of agitation occurred to the items that we had
looked at. I mentioned earlier -- you can think of the nitrates as being
rather large objects. When they hit something, they sort of set on the
surface. They are not small. They don't defuse into the fabric. They are
sitting on the surface. So, if one agitated the item, one could remove
them. They could fall off or brush off while the primer lead, because it
is a fine mist, is actually embedded very much into the fibers of the
item.
Q. Whether it be the hand brushing or the clothing
falling down or maybe somebody brushing it or pulling it off, would that
remove nitrates?
A. They could wash off with blood, or be brushed off in
some fashion or another. It could be shaken off. If it is very generally
held on to the surface, it could be shaken off.
Q. However, when there is the presence of primer lead,
you said that it is not easily shaken off?
A. No. You have to do something to the fabric to remove
that.
Page 87.
Tumosa - Cross
Q. There is no question in your mind that where there is
presence of primer lead there is an indication of a close range type of
gunshot that you have determined is within twelve inches?
A. That is correct.
Q. Also, would you tend to have the existence of lead
more on an entrance hole rather than an exit hole?
A. Normally you see it more on entrances holes than
exits.
Q. You have discussed at some length questions with Mr.
Jackson in reference to those two tests. I am going to ask you a few
questions in relation to the neutron activation test and the trace metal
detection test. You have already mentioned what would easily contaminate
the surface for the trace metal detection test. What would contaminate the
surface for the neutron activation test?
A. Again, it is a surface phenomena. Anything on the
surface of one's hand can easily be removed. At least a majority of the
time it can be removed.
Page 88.
Tumosa - Cross
Q. You are saying, for example, that the surface of one's
hand can be easily removed by holding his hands and putting them against
blood, a portion of his own body, feeling around to where blood is or
something would that have some effect?
A. Any activity, the wiping of one's hands on any item,
would tend to remove the gun powder residues. If the item was wet, it
would aid it more.
Q. I am talking about external, if I could use the word,
stimuli that even beyond the fact of what is normally present in the
individual's hand, did you not say also that if the hand didn't touch
anything at all, the fact that there might be perspiration or a
concentration in the hand also may not be good for testing purposes?
MR. JACKSON: Objection. Which test is he talking about.
The Doctor specifically responded to the trace metal detection test at
that time, sir.
MR. MCGILL: Well, he talked about
Page 89.
Tumosa - Cross
both tests on cross examination. I am referring to either
test.
MR. JACKSON: Fine.
THE WITNESS: The common sense approach -- if you dilute
something with water, whether it be sweat or blood or whatever, obviously
the chances of finding what you want become less.
BY MR. MCGILL:
Q. So, if you start with perspiration or if you start
with some kind of reaction or phenomena in your hands, if you add on to
that touching a blooded area, a bleeding area, that would affect the
results?
MR. JACKSON: Objection. That is a hypothetical, Your
Honor.
MR. MCGILL: Those are facts in evidence, sir. Those are
in evidence.
THE COURT: I will take it. Go ahead.
THE WITNESS: Yes. That would certainly tend to decrease
the probability of
Page 90.
Tumosa - Cross
finding something.
BY MR. MCGILL:
Q. What if you have physical contact with an individual,
whether it be moving around or flashing your arms so that your hands are
hitting things, hitting parts of your own self, the ground, the Volkswagen
fender, the street, anything at all, would this also have an effect on
you?
A. Any contact with any other object will dilute the
possibility of finding what you are looking for.
Q. What about if your hands are behind you and your hands
may be together and may be touching parts of your clothing as you are
walking to the hospital for treatment, would this have an effect?
A. It could have.
Q. How about if you are in the hospital itself and you
are being treated, being cleaned and washed off by the nurses or medical
aides?
MR. JACKSON: Objection, Your Honor.
BY MR. MCGILL:
Q. What about that?
Page 91.
Tumosa - Cross
MR. JACKSON: Objection.
THE COURT: I think he has already answered your
hypothetical. Go ahead.
THE WITNESS: Yes. It would have some effect,
obviously.
BY MR. MCGILL:
Q. That would be true, would it not, also, sir, for
whether an individual dies or whether an individual is still living; any
kind of treatment that would be done, any kind of action that would be
performed for the purposes of treatment may well in some way affect the
results of that?
A. Any contact of any kind would, short of coming in
contact with other firearm residues, would decrease the chance of finding
the residue.
Q. If you combined all of those and they were just four
or five things that I mentioned to you, if your combined all of those as
actual instances that had occurred, would that not make highly unlikely
any kind of results of that test as being accurate?
MR.JACKSON: Objection.
Page 92.
Tumosa - Cross
THE COURT: Let him answer.
THE WITNESS: Yes, it would.
BY MR. MCGILL:
Q. As a matter of fact, you were asked by Mr. Jackson
specifically about laboratory conditions where you have a gun in the hand
and the gun is taken away from the hand and perhaps some kind of test is
performed at that point; however, what if you are not that interested in
determining whether somebody has something on his hand, if the men are
either dying or seriously injured and you want to take both of them to the
hospital for treatment, are you concerned at that point --
MR. JACKSON: Objection, Your Honor.
THE COURT: I sustain the objection.
MR MCGILL: I have nothing further.
(RECROSS EXAMINATION)
BY MR. JACKSON:
Q. Doctor, notwithstanding all of those factors that may
affect the test, you can't say that they would eliminate the detection,
would you?
Page 93.
Tumosa - Cross
A. Well, the purpose of doing a test is to have a
reasonable expectation that you will get information from doing the test.
The tests are not something one can do without some discomfort to the
individual involved. If you had, hypothetically, two individuals in an
emergency room, to take the hands of the individuals while they are being
treated for gunshot wounds and display their hands with chemical agents
and put ultraviolet light on them, I think this would be disruptive to
emergency room procedures.
Q. However, would you answer my question now that you
told us that, sir.
A. I thought I answered your question.
Q. The question was, notwithstanding all of those
circumstances, the rubbing of the hands, and anything else you might
imagine, could you say that that would eliminate the possibility of
detecting whether or not, in fact, a person had held a weapon?
A. Given those circumstances, the best of circumstances
which you just described in your question, sir, given those, I would not
perform the test. I would
Page 94.
Tumosa - Cross
not think that there would be any reasonable or practical
certainty to the information given.
Q. We can understand why you wouldn't conduct the
test.
MR. MCGILL: Objection.
BY MR. JACKSON:
Q. What about with regard to the neutron activation
test?
MR. MCGILL: I object.
BY MR. JACKSON:
Q. I talked about the trace metal detection test in the
last question. This is the neutron activation test that I am talking
about.
A. I do not think there would be a reasonable chance for
finding any information.
Q. Why is that, sir, if you don't know what happened?
MR. MCGILL: Objection.
BY MR. JACKSON:
Q. Do you know for certain whether the hands of Mr.
Jamal, the hands of Officer Faulkner were washed?
Page 95.
Tumosa - Cross
MR. MCGILL: I object. It is a hypothetical fact.
MR. JACKSON: I withdraw the questions, Your Honor.
BY MR. JACKSON:
Q. Before Doctor Tumosa leaves the stand, I would like to
refer him to the first page of the lab report, receipt number 854919 and
ask him to read that, please.
A. 8549191
Q. Yes, sir.
A. The notation being that "Items were removed from
William Cook: Item number one, blue long sleeved sweatshirt, human blood
present at collar area. Item number two is a dark navy blue three-quarter
length navy sail coat with silver colored buttons with human blood on the
left shoulder area and upper left arm area. Item number three,
multi-colored long sleeved shirt stained with human type "A" blood at the
collar area."
Q. Doctor, just a couple of questions with regard to the
shirt, item number one.
Page 96.
Tumosa - Cross
Was there any determination as to the blood type?
A. No, sir.
Q. Was a test conducted and they just could not determine
it, or just what do you know?
A. I don't believe it was tested for blood types,
sir.
Q. Would that be the same for item number two?
A. That is correct.
MR. JACKSON: I have no further questions.
MR. MCGILL: Thank you, Doctor. Does the Court have any
questions?
THE COURT: No. Doctor, you may step down. Do you want to
break for lunch until a quarter to two?
MR. MCGILL: That would be fine.
MR. JACKSON: Yes.
(Whereupon a luncheon break was taken at 12:20 p.m. .
..)
Page 97.
(Whereupon court reconvened at 2:05 p.m.)
MR. MCGILL: May I proceed?
THE COURT: Yes.
MR. MCGILL: I recall Police Officer James Forbes.
- - - -
JAMES FORBES, having been duly sworn,
was examined and testified as fo11ows:
THE CRIER: State your full name and badge number for the
record, please, and spell your last name.
THE WITNESS: James Forbes, F-O-R-B-E-S, badge number
9881.
(DIRECT EXAMINATION)
BY MR. MCGILL:
Q. You are still under oath, sir. I recalled you for a
specific purpose. Regarding the date of December 9, 1981, do you recall
testifying about that?
A. Yes, sir, I do.
Page 98.
Forbes - Direct
Q. In reference to that, after you arrived at the scene,
did you have occasion to observe, other than the two weapons, any other
piece of evidence or any other thing at that time, whether or not you
thought it was evidence, did you observe any other --
A. Yes, I did.
Q. What was that?
A. It was a flashlight.
MR. MCGILL: May I approach with this, Your Honor?
THE COURT: Yes.
BY MR. MCGILL:
Q. Where did you see this other item, the flashlight, as
you said?
A. The flashlight was laying in the street just off the
curb about a foot west of where I picked up Officer Faulkner's gun.
Q. Maybe we can use this, C-3.
(Mr. McGill showing the item to the witness.)
Page 99.
Forbes - Direct
BY MR. MCGILL:
Q. I am showing you a black marker here. Would you
indicate where the flashlight was? Just put a big "F.L." where the
flashlight was.
A. (Witness marking picture.)
Q. Would you also circle that, please?
A. (Witness marking photograph.)
(At this time, Mr. McGill showed the photograph to the
jurors.)
BY MR. MCGILL:
Q. Did you tell the police that in a statement?
A. Yes, I did.
Q. Were you asked later to identify the flashlight
anywhere?
A. Yes, I believe I was asked on the 16th at 8th and
Race.
MR. MCGILL: Let me mark this, then, as exhibit C-61. Mark
that and show that to Defense counsel and the Judge.
(At this point, the flashlight was marked as exhibit
C-61
and was shown to Defense counsel and the Judge.)
Page 100.
Forbes - Direct
BY MR. MCGILL:
Q. Would you take a look at C-61?
A. Yes.
(Witness examining flashlight.)
BY MR. MCGILL:
Q. You have seen that before?
A. Yes.
Q. Could you identify C-61?
A. I can identify it as being the one or like the one
that was laying on the street.
Q. Did you do anything with it or just leave it
there?
A. I left it there.
MR. MCGILL: Cross examine.
(CROSS EXAMINATION)
BY MR. JACKSON:
Q. Officer Forbes, you gave a statement to the police
about this flashlight?
A. That is correct.
Q. When did you give a statement with regard to
Page 101.
Forbes - Cross
this?
A. I believe it was on the 16th of December.
Q. Do you know to whom it was that you gave a
statement?
A. I'm not sure. I believe it was Detective Thomas.
Q. You originally gave a statement to a detective on
December 9th; is that right?
A. That's right.
Q. In that statement, you never mentioned the flashlight,
did you?
A. No, I did not.
Q. When you saw the flashlight after December 9th,
assuming that it is the same one for a moment, after you saw the
flashlight on December the 9th, when was the very next time you saw the
flashlight?
A. I believe it was the 16th of December.
Q. Who had the flashlight at that time?
A. I don't know whose possession it was in. It was up in
the Chem Lab.
Q. You were asked to go and take a look at it?
Page 102.
Forbes - Cross
A. Yes.
Q. Did they tell you how long they had it?
A. No.
Q. Did they tell you from whom they received it?
A. No.
MR. MCGILL: Objection. It is all hearsay.
BY MR.JACKSON:
Q. By the way, is there any way that you can determine
that, indeed, that is the very same flashlight you saw that night?
A. Not the very same, but it is like it in its length and
color.
Q. Did you examine that flashlight on the 9th?
A. No. I didn't.
Q. Based on your previous indications of where the guns
were found, it was closest to what gun?
A. Officer Faulkner's.
Q. In fact, how close was it?
A. Approximately a foot west of where the gun was
laying.
Page 103.
Forbes - Cross
Q. Officer Faulkner's gun was in the street, too?
A. That's correct.
Q. It was along side the Volkswagen or something within
the length of the Volkswagen, but near the curb; is that right?
A. That's correct.
Q. How long did you estimate the length of that
flashlight to be?
A. When?
Q. Right now. Well, is it about the same length as it was
on the 9th?
A. That's correct.
Q. Although we have seen it, could you estimate the
length for us for the record?
A. Approximately eighteen inches.
Q. Had you ever seen that flashlight before December
9th?
A. No, I hadn't.
Q. After you arrived, I am not going to take you through
the testimony you have already given, at some point in time, upon your
arrival, you saw a white male very near the scene or at the scene; is that
correct?
A. He was approaching the scene, yes.
Q. When you say that he was approaching it, wasn't he, in
fact, on the same sidewalk where Officer Faulkner was?
A. Yes.
Page 105.
Forbes - Cross
Q. How close did you see this man to Officer
Faulkner?
A. Well, I was there. He came down from the corner of
13th Street and he got, I would say, three to five feet away from the
Officer's feet. That is when I turned around and sent him back to the
corner.
Q. Did you know, in fact, where he came from?
A. He came in the direction of 13th Street.
Q. So, you don't know if, in fact, he came from 13th
Street or anywhere else, just from that general direction; is that
right?
A. From just about the corner; I know he wasn't very
close to us.
Q. You watched him come from the corner?
A. I did not watch him. I could see him out of the corner
of my eye. He was approaching.
Q. At the time he was approaching as you indicated, what
were you doing at that time?
A. That is when I had my eyes trained on William
Cook.
Q. You had your eyes trained on William Cook?
Page 106.
Forbes - Cross
A. Yes.
Q. Did you then have the two weapons in your hand?
A. No.
Q. So, you were close to William Cook at that point as
well?
A. I was about at the curb line. I was approaching
William Cook.
Q. So, that was before you even went over to him and came
back and got the gun? Let me put it this way. It was almost immediately
upon your arrival at the scene?
A. Yes.
Q. No one else had come that close to Officer Faulkner
while you were there; is that right, other than police officers?
A. And Mr. Cook.
Q. And Mr. Cook? No one else?
A. No.
Q. No other bystanders that you saw?
A. No one came that close, no.
Q. Could you describe this man for us?
Page 107.
Forbes - Cross
A. I would say he was in his late fifties. He appeared to
be over six feet tall. He was extremely intoxicated and he was wearing a
white or a tan trench coat. I believe he was balding, also.
Q. He had no hat on, then, right?
A. No.
Q. You say that he was extremely intoxicated. How could
you tell that, sir?
A. He was staggering down the sidewalk.
Q. How would you know that that was a result of
intoxication as --
A. He spoke incoherently.
Q. What did he say?
A. I couldn't understand it.
Q. How do you know that it was incoherent?
MR. MCGILL: Objection. That is the definition of
incoherent.
THE COURT: Sustained.
BY MR. JACKSON:
Q. You didn't understand what he said; is that right?
Page 108.
Forbes - Cross
A. That is true.
Q. How close did you get to him?
A. About a foot.
Q. You came within one foot of him and he came within
three feet, I believe you said, of Officer Faulkner; is that correct?
A. Yes.
Q. How close did he ever get to Mr. Jamal?
A. Around six to eight feet.
Q. And you never saw him again, did you?
A. No, I did not.
Q. You did not get his name or address or anything of
that sort?
A. No. I did not.
Q. As far as you know, did any of your fellow officers
get his name or address?
A. No, as far as I know.
Q. As far as you know, did anyone interview him?
A. No.
Q. Have you ever seen a statement from him?
A. No.
Page 109.
Forbes - Cross
Q. He had something with him, did he not?
A. Yes.
Q. I believe you indicated at some point that he had a
beer with him; is that right?
A. He had a brown paper bag that looked like there was a
six pack in it.
Q. However, you don't know what was in the bag?
A. No.
Q. However, it was a weighty bag, was it not?
A. Yes.
Q. However, you did not ask to examine the bag, did
you?
A. No.
Q. Do you know if anyone ever obtained that bag?
A. No.
Q. Do you know if anyone ever examined the bag?
A. No.
MR.JACKSON: I have no further questions.
Page 110.
Forbes - Redirect
(REDIRECT EXAMINATION)
BY MR. MCGILL:
Q. Officer, you also told the police that in your
statement?
A. Yes.
Q. Let me see if I can get the description straight. What
was the description?
A. He was somewhere over six feet, a white male, in his
middle to late fifties, balding, and he had a white or a tan trench coat
on.
Q. He was intoxicated?
A. Extremely.
Q. The witnesses that have been called for the
Commonwealth for this trial, Robert Shelbert (ph), Albert Majilton (ph),
Michael Scallion (ph), you have seen them?
A. Yes, I have.
Q. They are not that person, are they?
A. No, they are not.
MR. MCGILL: Let me ask that this
Page 111.
Forbes - Redirect
be marked as exhibit C-62. This is the statement of
December 16th of Officer Forbes.
(At this point, the statement was marked as exhibit
C-62.)
MR. MCGILL: May I approach the witness, Your Honor?
THE COURT: Go ahead.
BY MR. MCGILL:
Q. Is this your statement?
A. Yes, it is.
Q. I am going to refer you to page four. Does that
essentially make any statement in relation to the flashlight?
A. Yes.
Q. And page seven, read that to yourself. Does that
essentially reflect the information regarding the man, the older man?
A. Yes, it does.
Q. You got him out of the way because he was in the
way?
A. Yes, he was --
Page 112.
Forbes - Redirect
MR. JACKSON: Objection. I withdraw the objection.
THE WITNESS: He was approaching the crime scene and I
still had my eyes trained on Mr. Cook. So, I didn't know who was
approaching from my right side.
BY MR. MCGILL:
Q. You didn't mention anything about the flashlight on
the first day. Why didn't you say anything about the flashlight the first
time you saw it?
MR. JACKSON: Objection.
THE COURT: Go ahead.
THE WITNESS: I didn't know it was missing.
BY MR. MCGILL:
Q. Excuse me?
A. I didn't know that the flashlight was missing.
Q. What do you mean "missing"? I don't understand. The
question was why you mentioned it on December 16th and why you didn't
mention it on December 9th.
Page 113.
Forbes - Redirect
A. As far as I knew, the flashlight was left there as
part of the evidence of the crime scene.
Q. That is what you meant by "missing." I understand.
Thank you.
By the way, is that standard issue, that type of
flashlight?
A. No, but most officers purchase it on their own.
Q. Do you know whether Officer Faulkner carried one or if
you don't know --
A. I don't really know.
MR. MCGILL: I have nothing further, Your Honor.
MR. JACKSON: I have just a couple of questions.
(RECROSS EXAMINATION)
BY MR. JACKSON:
Q. You didn't know the flashlight was missing; is that
right?
A. That is correct.
Page 114.
Forbes - Recross
Q. Who told you that it was, in fact, missing?
MR. MCGILL: Objection. It is hearsay. It is irrelevant or
inadmissible.
MR. JACKSON: He is the one who said it was missing.
THE COURT: I see that you are misinterpreting
something.
As I understood, he explained what he meant by missing.
He thought it was left there because it was part of the crime scene. In
other words, he didn't pick it up. So --
MR. JACKSON: I understand.
THE COURT: However, now he is saying that it was missing.
That is what he said he meant by missing when he answered his question. He
said he thought it remained there because it was a part of the crime scene
and somebody would pick it up, not him.
MR. JACKSON: However, there is no indication that anyone
--
THE COURT: You can call that
Page 115.
Forbes - Recross
Officer Chin or whatever her name is.
MR. MCGILL: I will make her available. That is no
problem.
THE COURT: That is the one to ask. He said that he
assumed it was part of the crime scene and that somebody was going to take
care of it.
MR. JACKSON: Alright.
BY MR. JACKSON:
Q. Officer Forbes, other than the flashlight, were there
other items that you saw at the scene?
A. There was a green hat. I saw a green hat at the scene.
It was laying near a utility pole, I believe.
Q. Is there anything else that you can recall?
A. Not that I can recall.
Q. It is my understanding that the only reason you picked
up the guns is because, well, you just picked up the guns; you didn't
touch any of the other evidence is that right?
A. That is correct.
MR. JACKSON: I have no further
Page 116.
questions.
MR. MCGILL: Does the Court have any questions?
THE COURT: No.
MR. MCGILL: Thank you, Officer Forbes. I will now call
Detective Thomas.
- - - -
WILLIAM THOMAS, having duly been
sworn, was examined and testified as follows:
THE CRIER: State your name and division and spell your
last name, please.
THE WITNESS: Detective William Thomas, badge number 744,
Homicide Division; T-H-O-M-A-S.
(DIRECT EXAMINATION)
BY MR. MCGILL:
Q. Detective, you are the assigned detective in this
case?
A. Yes, sir.
MR. MCGILL: May I approach witness?
Page 117.
Thomas - Direct
THE COURT: Yes.
BY MR. MCGILL:
Q. I am showing you what has been marked, and I am really
limiting my areas to two specific areas, Your Honor, I am showing you what
has been marked as C-59. Would you take a look at C-59?
A. Yes.
Q. Can you identify what C-59 is or who C-59
represents?
A. Yes. That is a photo of Mumia Abu-Jamal.
Q. Is he in this courtroom?
A. Yes, he is, the gentleman sitting next to Mr. Anthony
Jackson.
Q. He has been sitting in this courtroom as part of these
proceedings for the last three weeks?
A. Yes, sir.
Q. In approximately the same spot and approximately the
same chair?
A. That is correct.
Q. Detective, did you have occasion on December 9, 1981,
to arrange to have photographs taken of William
Page 118.
Thomas - Direct
Cook?
A. Yes, sir, I did.
Q. I am showing you what has been marked as exhibit D-11
and exhibit C-21, C-31, C-32, C-33 and C-34. Will you take a look at those
items, please?
A. (Witness examining the photographs.)
Q. Have you reviewed those exhibits?
A. Yes, sir.
Q. Can you identify them?
A. Yes, sir. These are the photographs taken of Mr.
William Cook on December 9, 1981.
Q. Do they show any injuries of Mr. Cook?
A. Yes. They show a cut behind the left ear.
Q. You also observed Mr. Cook, didn't you, at close
range?
A. Yes, sir, I did.
Q. Did you observe, other than that cut, any other
injuries?
A. No. sir, I didn't.
Q. Did Mr. Cook make any complaints about any other
injuries?
Page 119.
Thomas - Direct
MR. JACKSON: Objection.
BY MR. MCGILL:
Q. To you.
MR. JACKSON: Objection.
THE COURT: Overruled.
THE WITNESS: No, sir, he didn't.
BY MR. MCGILL:
Q. As a matter of fact, did he ever make a complaint
regarding that injury?
A. No, sir. I asked him did he want to be treated for it
and he said no.
MR. MCGILL: May I see Your Honor at side bar very briefly
with Mr. Jackson? We may not need the stenographer.
(At this point, there was a side bar conference with the
Court, Mr. McGill
and Mr. Jackson after which the proceedings continued
as follows:)
MR. MCGILL: Cross examine.
Page 120.
Thomas - Cross
(CROSS EXAMINATION)
BY MR. JACKSON:
Q. Detective Thomas, you, actually saw William Cook on
December 9th, didn't you?
A. Yes, sir, I did.
Q. Approximately how tall was he?
A. From my recollection, counsel, I believe William Cook
was about five feet nine, five ten, five foot nine or five foot ten.
Q. What was his weight, approximately?
A. I would say, maybe, 160.
Q. When you saw him, he was already in the Homicide
Division?
A. Yes. sir.
Q. I note that the photographs were taken with no
clothing from the waist up. Did you see the removal of his clothing? Did
you see him before his clothing was removed?
A. I believe when I first observed him, I believe his
jacket may have been behind him on the chair, that he was sitting on, but
I am not sure. But he had his
Page 121.
Thomas - Cross
clothes on when I first observed him.
Q. Did he have a hat on?
A. Yes.
Q. What color?
A. I don't recall the color, to be honest with you. It
was a dark colored hat. It was, like, a beret. It covered most of his
hair.
MR. JACKSON: May I see the photographs, please?
(Mr. Jackson examining the photographs.)
MR. JACKSON: Show him C-15, please.
BY MR. JACKSON:
Q. Could you just take a look at that, Detective Thomas.
That is not the same hat that William Cook had on, is it?
A. (No response.)
Q. Do you want to look at the photograph, again? Is
it?
A. They are basically similar. I would call both
Page 122.
Thomas - Cross
of them berets or tams.
Q. However, the question is, that is not the same hat
that is in this photograph, is it?
A. I really could not say whether this is the same --
this particular hat was not the hat that was in the photograph, no.
Q. That is all I wanted to know. Your Honor, I would also
like to reserve the right to call Detective Thomas as my witness.
MR. MCGILL: Your Honor, the Detective will be available
at any time, as all the police officers will be for Mr. Jackson's defense.
Does Your Honor have any questions?
THE COURT: No.
MR. MCGILL: Thank you, Detective Thomas.
At this point, the Commonwealth will move to introduce
all of the exhibits, C-l through C-62.
At this point, Your Honor, the
Page 123.
Commonwealth rests.
THE COURT: May I see you In-Chambers?
(At this point, there was a discussion In-Chambers with
the Court,
Mr. McGill and Mr. Jackson, after which the proceedings
continued as follows:)
THE COURT: C-l A and B is a cap of the police officer's
and the shield. Is there any objection to that?
MR. JACKSON: No.
THE COURT: C-2 is a strand of hair and that was admitted.
C-3 to C-13 are photos of the area, the scene. I think I have already
admitted them into evidence because they were shown to the jury.
MR. JACKSON: I don't think C-8 was, Your Honor.
THE COURT: Yes, all of them.
MR. JACKSON: C-8 was admitted?
THE COURT: Yes, C-3 through C-13, inclusive.
Page 124.
MR. JACKSON: It was admitted?
THE COURT: Wait a minute. You are right. That part we
didn't.
MR. MCGILL: I only ask for the scene.
MR. JACKSON: I object to that.
THE COURT: C-8 is admitted into evidence for whatever
value it may have. It doesn't necessarily mean that it will be shown to
the jury.
C-14 was the black tie of the Officer. That is admitted
into evidence.
C-15 was the green beret that we just looked at now. That
is admitted into evidence. C-16 was admitted into evidence. That would be
a photo of 1234 Locust Street, the south side. It was shown to the
jury.
C-17 --
MR. JACKSON: The actual police log --
THE COURT: A photostat of the log,
Page 125.
that's admitted into evidence. D-l was a photo of the
jacket on the sidewalk.
MR. MCGILL: D-l?
MR. JACKSON: The bullet jacket.
THE COURT: Yes.
MR. MCGILL: He is moving to introduce --
MR. JACKSON: I would like to have them introduced at this
point as well.
MR. MCGILL: Alright.
THE COURT: D-2 to D-9 were photos of the scene, but they
have already been admitted into evidence and shown to the jury.
C-18 is the bullet sample that we used for demonstration
purposes. That would be admitted into evidence for its value, but it won't
go out with the jury.
MR. JACKSON: Fine.
THE COURT: C-19 was the cassette of the radio
transmission. That is admitted into evidence.
Page 126
C-20 was the transcript of that, the typed transcript of
that.
MR. JACKSON: Fine.
THE COURT: That is admitted into evidence.
MR. JACKSON: I would just bring Your Honor's attention,
and I know it is another matter as to whether it goes out with the jury,
but it has other information.
THE COURT: Yes, that's right.
C-21 is a photo of William Cook. That is admitted into
evidence.
C-22 and C-23 are two guns. They are admitted into
evidence.
C-24 is Officer Faulkner's police jacket. That is
admitted into evidence.
C-25 is Officer Faulkner's sweater. That is admitted in
evidence.
C-26 is the property receipt for those items. That is
admitted.
C-27 is Officer Faulkner's shirt. That is admitted.
ACHTUNG: Die Seiten 127 und 128 sind nicht
auffindbar.
Page 129.
C-36 was the tape of the interview of Cynthia White. Was
that played?
MR. JACKSON: No, it was never played.
THE COURT: But it is here, though.
MR. MCGILL: Yes.
THE COURT: However, it was never played to the jury.
MR. MCGILL: Right.
THE COURT: It is admitted into evidence. He may want to
use it. I don't know. D-12 is a small sketch of the location which was
made on 12/9/81. That is admitted.
C-37 was the bullet taken from the defendant from his
lower right back. That is admitted.
C-38 was the property receipt for that exhibit, C-37,
which was the bullet that was admitted.
C-39 was the bullet specimen from
Page 130.
Doctor Hoyer, the assistant medical examiner.
C-40 is the receipt for that bullet, which was marked as
C-39, given by Detective Daney, (ph).
C-41 is the property receipt for that bullet which was
marked as C-39.
C-42 is an IBM card signed by Officer Faulkner for his
service. That is admitted into evidence.
C-43 was a sample of a fingerprint, that large
fingerprint. It was used for demonstration purposes. Since we used it for
demonstration purposes, it is admitted for whatever it is worth.
C-44 is a bullet fragment. There were four envelopes;
they are admitted.
D-13, well, it was the crime lab, I think, research and
you took it back, but we used it for whatever purpose it served.
C-45 to C-51 are photos of the inside of the emergency
room at the hospital. They are admitted into evidence.
Page 131
C-52 was a sketch of the Jefferson Hospital Emergency
Room. That is admitted.
D-14 was a statement of the witness, Priscilla Durham, to
her supervisor on 12/10/81. That is admitted.
C-53 is a statement of Priscilla Durham to the Internal
Affairs on February 9, 1982. That is admitted.
C-54 is the clothing of the defendant. That is
admitted.
C-55 was the property receipt for the clothing of the
defendant. That is admitted.
MR. JACKSON: For the record, I have no names. I still
don't have any.
THE COURT: You mean for character?
MR. JACKSON: For character witnesses I still don't have
any.
THE COURT: If worse comes to worse, you may very well
have to leave that out of the opening statement and later on, if he wants
to call them, as long as you give it to the D.A. in advance, check it out,
I don't see any problem. I don't know what else you can do because I
realize your problem with Mr. Jamal.
MR. MCGILL: From the very beginning of the case, from the
very beginning of the trial, Mr. Jackson has assumed the position that he
will represent this defendant the best that he can pursuant to Judge
McDermott's order as well as Your Honor's, irrespective of the impediments
presented by his client. So, Mr. Jackson, of course, has the option which
has been really consistent with what he
Page 139.
has been doing so far and that is running the case the
way he feels is in the best interest of his client with or without his
help. I am sure that he has had some help, but may not as much as he would
like to have, but he has at least been conferring to some degree. So,
keeping the consistency there, I would think that you should run the case
the way you feel is best for him.
THE COURT: Maybe they are anticipating unnecessary
problems. Let's wait and see until Mr. Jackson has a chance to talk to
him.
MR. JACKSON: I would also point out, Your Honor, that
today I indicated to Mr. McGill perhaps some addition of witnesses that I
didn't indicate before. I don't think any of the witnesses are unknown
witnesses in terms of who I may call. One of the difficulties that I have
in determining what witnesses to call is that I have to reflect and think
and search my notes as to the
Page 140
statements of witnesses since I no longer have a copy of
the statements. Mr. Jamal has copies of statements. I think that I
indicated -- I showed you all of the names.
MR. MCGILL: That's right, and I gave you the address of
Miss Jones, the address and phone number.
MR. JACKSON: Veronica Jones; I don't have it. I never
contacted her at all because she would be a key witness in our defense and
I think there may be one or two detectives and police people. I don't
think there are any other civilians that I haven't mentioned to Mr.
McGill. I just want you to know the civilians that I haven't mentioned
already.
MR. MCGILL: Well, I will point out one other thing, too.
I am glad I remembered this. Mr. Jackson was kind enough to give me the
names pursuant to discovery rules, but he mentioned two names; one was an
investigator
Page 141.
and the other was Sergeant Westerman. This has to do with
that same issue yesterday, about the investigative log and as far as the
order and the ruling was concerned, it is inadmissible testimony. Whether
it be on cross examination of the medical examiner or whether Sergeant
Westerman, who was one of the witnesses you mentioned, was called himself
or even if the investigator was called himself, it is still, Your Honor,
plainly and clearly inadmissible evidence because if Sergeant Westerman
was even to think it was accurate and state that it was accurate, it is
double hearsay there.
MR. JACKSON: Let me interrupt. I am not trying to
introduce the statements, if that is what you are talking about. I am not
going to try to introduce the statements.
MR. MCGILL: I mean even the work itself, even the
contents of the statements.
MR. JACKSON: Let me just suggest that it is generally my
intent with regard to the medical examiner and Sergeant Westerman
Page 142.
to, number one, determine what their duties are. If their
duties are to investigate, to follow up leads, hearsay leads, whatever the
leads are, then this would, of course, be in the regular course of their
business. Did they have reason to know that Mr. Jamal was shot by someone
else, a police officer, whoever it was. If so, what did they do and, I
think, Your Honor, that would be appropriate to find out.
THE COURT: No, it is still not --
MR. MCGILL: We won't even have the Judge at this point
decide that. Just rather than delay any further, I just want to make clear
that this is not mentioned in his opening to the jury.
THE COURT: Well, naturally, that is strictly hearsay as
far as I am concerned.
MR. JACKSON: Your Honor --
THE COURT: Even if the detective got on the stand and
started testifying as to hearsay testimony, you would object right
away
Page 143.
and rightfully so, unless the Commonwealth made some
exception.
MR. JACKSON: If a police officer testified as a result of
information I received, I am not saying how he received it, as a result of
information I received, did you determine if, in fact, Mr. Jamal was shot
by anyone else or something like that --
THE COURT: No, that still wouldn't be admissible. You can
ask him what he did as a result of that, but any information he got -- if
he went out and started to investigate something and what he actually saw
on his own, that is a different story.
MR. MCGILL: If Sergeant Westerman was asked, "What did
you do in connection with this investigation," and he said, "I did" this
or this or this, that is alright, but in his opening statement to bring up
any kind of comments --
THE COURT: No, I am not talking about that.
Page 144.
MR. MCGILL: I am talking about the opening statement.
THE COURT: I am talking about what is admissible later
on.
MR. JACKSON: That is another question and I am saying
that just as you have a police officer who responds to a radio call as a
result of information he received from the radio call, "I went to such and
such a house" --
THE COURT: Okay.
MR. JACKSON: "AS a result of information I received from
the medical examiner's officer, I determined that Mr. Jamal wasn't shot
by" --
THE COURT: He can't make that determination.
MR. JACKSON: Why?
THE COURT: No, he can't.
MR. JACKSON: Why?
THE COURT: What did he do?
MR. JACKSON: That is what I want
Page 145.
to ask.
THE COURT: You had better talk to him first and then tell
me what he is telling you and I will let you know whether or not you can
admit that.
MR. JACKSON: Your Honor, I think I would like to talk to
him.
THE COURT: You had better talk to him.
MR. JACKSON: And to the investigator before I give the
opening statement.
MR. MCGILL: Bring him in on Monday. We have Monday
morning free.
MR. JACKSON: I didn't want to waste this afternoon.
MR. MCGILL: Why not start it and just not include that in
the opening?
MR. JACKSON: Because I want to put that in the
opening.
MR. MCGILL: Anyway, it is going to be cut, Your Honor.
Even if it was accurate, which it is not, it is strictly hearsay. We
Page 146.
are really talking about something--
THE COURT: What do I care about his conclusion? His
conclusion doesn't mean anything to me.
MR. JACKSON: I am not asking for his conclusion. I am not
asking for anybody's conclusion.
THE COURT: Yes, you are.
MR. JACKSON: As a result of information received, number
one, Your Honor, does the assigned detective or the medical examiner or
the sergeant or somebody have an obligation or duty to pursue the leads
that they receive, whatever the leads are. If they say yes, I can ask, "As
a result of a lead that you received, did you pursue an investigation to
determine how, why, and under what circumstances Mr. Jamal was shot"
--
MR. MCGILL: Objection.
MR. JACKSON: Isn't that reasonable?
THE COURT: We don't even know what this guy did. Why
don't you talk to him first.
Page 147.
MR. JACKSON: However, Your Honor --
MR. MCGILL: That includes hearsay within the
question.
THE COURT: You had better talk to him first.
MR. JACKSON: I don't understand and, seriously, if a
police officer can say --
THE COURT: A police officer can't get on the stand and
say, "As a result of my information, I concluded that he shot that police
officer."
MR. JACKSON: I am not asking for any conclusion. I want
to ask, "What did you do?"
THE COURT: What did he do?
MR. JACKSON: As an example, "As a result of a radio
message, I responded and went to the scene."
THE COURT: Let's talk about what you want these people
for.
MR. JACKSON: I am trying to show that this is the very
same situation.
Page 148.
THE COURT: I don't need examples. I understand very
clearly. All I want to know is what do you intend to prove through these
witnesses?
MR. JACKSON: That they didn't pursue the --
THE COURT: They didn't pursue it. They didn't do
anything. What evidence is that?
MR. JACKSON: That is evidence of police collusion, bias,
the whole bit.
THE COURT: You mean because the investigator and the
medical examiner didn't do anything --
MR. JACKSON: The medical examiner or the police.
THE COURT: Wait a minute. You have to understand that it
is his responsibility to prove your client guilty beyond a reasonable
doubt.
MR. JACKSON: I understand that.
THE COURT: He couldn't do that by
Page 149.
what they didn't do, only by what they did.
MR. JACKSON: My responsibility is to point out what they
should have done and didn't do.
MR. MCGILL: All of this, first of all, is based on
something that is supposed to have been said which, as a matter of fact,
it was never said, but let's assume that it was; let's assume that it was
said. Hearsay upon hearsay upon hearsay is absolutely inadmissible. "As a
result of anything, what did you do? Did you continue an investigation?
Did you pursue any investigation of the shooting of Officer Faulkner?"
That is about the most he could say, or "What did you do in reference to
this?" What did he do? "Well, I took reports." I did this, I did that. It
is so completely out of the ballpark as being admissible testimony, Your
Honor. It is so wrought with inadmissible problems and the whole
reliability aspect of the hearsay is plainly evident in this type of
attempt to
Page 150.
get in some sort of conjecture, some sort of inference of
something that they are supposed to have known. All in all, by the way,
what you will hear from Sergeant Westerman is something which was
incorrectly written down because it was never said. Now, that even makes
it worse, but even if it was said, it is based not upon any personal
observations. They were conclusions drawn by people and so it should not
be mentioned.
THE COURT: That man, whoever he is; in the medical
examiner's office, he has no responsibility to investigate this case. It
is not his responsibility. It is not his responsibility at all.
MR. JACKSON: Well, Your Honor, I don't see any difference
in this situation with the analogy I gave with regard to the radio call.
Whether the information is hearsay true, incorrect, or not --
THE COURT: But I am telling you that the investigator has
no responsibility.
Page 151.
He is not here to investigate homicides.
MR. MCGILL: Even if he was, it is hearsay.
THE COURT: However, he is not.
MR. JACKSON: Your Honor, he has some job to do as an
investigator.
THE COURT: I don't know what he has to do. All he has to
do is work in the medical examiner's office.
MR. JACKSON: He goes out in the field.
THE COURT: He didn't go out.
MR. JACKSON: I don't know that.
MR. MCGILL: That usually goes to the circumstances
surrounding the descendent's death so that if, --
THE COURT: He doesn't make a conclusion as to who shot
him or didn't shoot him. That is not his responsibility.
MR. JACKSON: Your Honor, I still am not talking about
conclusions. I am asking what his activities were, or his lack of
Page 152.
activities.
THE COURT: Look, I think we are arguing and cluttering up
this record unnecessarily. You are going to talk to these people between
now and Monday at one o'clock. I can see that he is not going to be able
to go forward today.
MR. MCGILL: I will have Sergeant Westerman subpoenaed to
appear in my office and I will direct him to talk to Mr. Jackson.
THE COURT: Alright.
MR. JACKSON: And the medical examiner person because I
don't know who it is. It is just an initial.
MR. MCGILL: Well, he will probably just say that either
he or Sergeant Westerman made a call, or he forgets who made this call,
and he wrote down what the caller said. He will say that his attention was
focused on, obviously, the circumstances surrounding the descendent's
death. He was not that much
Page 153.
concerned about what the circumstances were surrounding
the defendant's injury. He says that he may well have heard it wrong, but
what he wrote down is what he thought he heard. That is what he will
say.
Now, that is so completely irrelevant because that is
hearsay on Sergeant Westerman, who happens to be here, and it is also
inaccurate.
MR. JACKSON: I would still like to talk to both of
them.
THE COURT: Let him talk to them so that we will have no
problem. I think we ought to go out there and finish up. I will admit
these things into evidence and you will, rest.
MR. MCGILL: I have rested.
THE COURT: Let me make a formal announcement and then he
can ask that we recess until Monday.
MR. MCGILL: Alright.
THE COURT: What do I do with this
Page 154.
demurrer? You can do that now if you want to.
MR. JACKSON: I could demur to the charges, particularly
with regard to possession of an instrument of crime. I demur to that
charge, Your Honor.
THE COURT: Well, that is denied. That is quite
obvious.
MR. JACKSON: I will demur to the homicide, too.
THE COURT: That is denied. That is a question for the
jury.
MR. MCGILL: Legally, I think there is sufficient
evidence.
THE COURT: Yes, there is. The demur stays, but it is
really for them to make that decision.
(Conclusion of In-Chambers discussion.)
MR. MCGILL: C-l to C-62 is admitted into evidence. D-l to
D-14 is admitted into evidence.
THE COURT: The Commonwealth rests?
Page 155.
MR. MCGILL: Yes, Your Honor. With respect to the Court,
the Commonwealth respectfully rests its case.
THE COURT: Mr. Jackson, do you have a request?
MR.JACKSON: Yes, Your Honor. I request, baaed on the fact
that the Commonwealth has rested today, I respectfully request that we
give our opening remark on Monday.
THE COURT: Alright. The court will adjourn until Monday
at one o'clock p.m. in this courtroom.
MR. JACKSON: Your Honor, Mr. Jamal would like to address
the Court. He specifically requests to address the Court outside of the
hearing of the jury.
THE COURT: Alright.
(At this time, the jury left the courtroom.)
THE DEFENDANT: Judge, you have heard me say quite a few
times that I do not
Page 156.
want this lawyer to represent me and the reason is
obvious, because he is going to get me convicted and he is going to get me
sentenced and when that sentence comes, I want all of you, everyone in
this courtroom, to know that I repeatedly told you that this lawyer could
not represent me and that this lawyer is going to cause me to be sent back
to prison. You have talked much about how much I need a legal trained
lawyer. You have insisted that I have a legal trained lawyer. You have
insisted that John Africa does not know the law. So, when I get sentenced,
convicted, and found guilty of murder, I want everyone here, all of you,
to understand that I was found guilty of murder using a legal trained
lawyer and not John Africa, who you repeatedly have refused to let me use.
According to you, John Africa doesn't know the law, but Tony Jackson, a
legal trained lawyer, does know the law. What you are saying is that I
must have an adequate defense and
Page 157.
that John Africa cannot adequately defend me and that
Tony Jackson can adequately defend me. So, according to that reason, with
Tony Jackson, defending me, I should be acquitted because you are
insisting that I can't get acquitted by using John Africa. I am insisting
that I can. When you insist that I must use Tony Jackson, a legal trained
lawyer, in order to protect myself from a death sentence or from prison,
what you are saying is that he can get me acquitted and since I am at the
mercy of you, the Court, this Judge, and him, Tony Jackson, a legal
trained lawyer, I expect to be acquitted or else I want you, Judge Sabo,
and Tony Jackson, a legal trained lawyer, I want you to tell me why, why
you have imposed an inadequate, so-called defense on me and denied me John
Africa, who is the defense my choice.
THE COURT: I have explained the law on that subject to
you before. I do not guarantee what a jury is going to do and I
Page 158.
don't think anyone can do that. They are the triers of
the facts. They will hear all of the evidence and regardless of who
defends you, even if it was F. Lee Bailey, nobody can guarantee you what a
jury is going to decide.
THE DEFENDANT: However, you have decided --
THE COURT: They are the triers of the facts and they are
the only ones who are going to make that decision.
THE DEFENDANT: You decided to assist me in my
defense.
THE COURT: That is right, but Mr. Jackson nor can anyone
else change the facts, whatever facts that the jury actually believe and
they are the ones who try the facts. They are the ones that make the
decision. There is nothing that anybody can do that is going to in any way
influence them. It depends on what comes out in the trial. If what you are
saying is true, then John Africa, whoever he defends, is going to be
Page 159.
acquitted. He would be the best lawyer in the world.
THE DEFENDANT: I think he is.
THE COURT: You may think he is --
THE DEFENDANT: It is my life that is on trial, not
yours.
THE COURT: There is no guarantee that he could do
anything more or less than anybody else, but he is not trained in the law.
He doesn't know what is necessary. I have watched Mr. Jackson, not on this
case, but on other cases. He is a very able lawyer.
THE DEFENDANT: Well, if he is able --
THE COURT: That doesn't mean that he can guarantee you
anything. Nobody can.
THE DEFENDANT: What is he able to do?
THE COURT: Exactly what he has been doing.
THE DEFENDANT: Which is?
THE COURT: Exactly what he has been doing.
Page 160.
THE DEFENDANT: Following the orders of the Court.
THE COURT: No, he doesn't follow my orders.
THE DEFENDANT: Sure he does.
THE COURT: No, he doesn't. There is nothing else.
Gentlemen, we will adjourn today until Monday at one
o'clock p.m.
THE CRIER: This court is adjourned until Monday at one
o'clock p.m.
- - - -
(Court adjourned at 3:15 p.m.)
I hear by 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