at Temple University.
Q. How long have you been so employed?
A. Eight years.
Q. Doctor Smith, do you know Mumia Abu-Jamal?
A. Yes, I do.
Q. How long have you known him?
A. About eight years.
Q. Could you tell us how it is that you have come to know
him?
A. I came to know him because when I came to Philadelphia
I got involved with various people in the media, because I am in like the
Association of Black Psychologists, you know, doing press releases for the
organization and I was involved with Drexel's video station and I got to
meet people in the media and people who are involved in community
organizations.
Q. Do you know other people who know Mr. Jamal?
A. Several.
Q. Among those people that you know who know Mr. Jamal
what is his reputation for being a peaceful and law-abiding citizen?
A. Excellent.
MR. JACKSON: Thank you.
Page 10.
Direct-V. Young
You may cross-examine.
MR. McGILL: No questions.
MR. JACKSON: Viola Young.
BY MR. JACKSON:
Q. Miss Young, do you know Mumia Abu-Jamal?
A. Yes.
Q. For how long have you known him?
A. Approximately five and a half years.
Q. Could you tell us how it is that you came to know
him?
A. I met him when I was a student at Drexel University. I
work at WKD Radio.
Q. Do you know other people who know Mr. Jamal?
A. Yes.
Q. Among those people that you know who know
Page 11.
Direct-V. Young
Mr. Jamal what is his reputation for being a peaceful and
law-abiding citizen?
A. I would say they would say he was a peaceful,
law-abiding citizen.
MR. JACKSON: Thank you very much. Cross-examine.
BY MR. McGILL:
Q. Miss Young, in your sources of your information
concerning the Defendant's reputation would they also include newspapers
that have written stories about him?
A. Newspapers?
Q. Newspaper articles, or authors, or, excuse me,
newspaper reporters in various news media?
A. Yes.
Q. And do you occasionally --- would you listen to or
read some of these articles which would quote what the Defendant would say
in those articles?
MR. JACKSON: Objection. Your Honor, the question is posed
"Does she know other people who know him?"
Page 12.
Cross-V. Young
MR. McGILL: It goes to her sources.
MR. JACKSON: Objection, Your Honor.
THE COURT: I will sustain the objection. Go to the other
sources first.
BY MR. McGILL:
Q. What are the sources of your information?
A. Other students who work at WKD Radio and presently
people who are now news reporters.
Q. You did mention sometimes there are newspaper articles
that you might have read about the Defendant, did you not?
MR. JACKSON: Objection.
THE COURT: I will sustain the objection.
BY MR. McGILL:
Q. Have you ever heard him quoted as saying things?
MR. JACKSON: Objection.
THE COURT: Sustained.
BY MR. McGILL:
Q. Have you ever heard others who have read or heard or
been near him when he has made statements about
Page 13.
Cross-V. Young
MR. JACKSON: Objection.
THE COURT: Sustained.
BY MR. McGILL:
Q. Do any of your sources include information which he
has made known during the course of his lifetime regarding his particular
feelings on subjects?
MR. JACKSON: Objection.
THE COURT: Sustained.
MR. McGILL: No further questions.
MR. JACKSON: Thank you very much.
MR. JACKSON: Gloria Cheeks.
BY MR. JACKSON:
Q. Miss Cheeks, do you know Mumia Abu-Jamal?
A. Yes, I do.
Page 14.
Direct-G. Cheeks
Q. For how long have you known him?
A. About four or five years. Quite awhile.
Q. Could you tell us how it is you came to know him?
A. Through the community. Him being a community activist
and me attending meetings.
Q. Do you know other people who know Mr. Jamal?
A. Oh, hundreds of people.
Q. Among those people that you know who know Mr. Jamal
what is his reputation for being a peaceful and law-abiding citizen?
A. Excellent.
MR. JACKSON: Thank you. Cross-examine.
BY MR. McGILL:
Q. Miss Cheeks, the people that know this Defendant would
they include Asil Moore that you may have talked to?
MR. JACKSON: Objection, Your Honor. As to specific
names.
Page 15.
Cross-G. Cheeks
MR. McGILL: It is a source of information.
THE COURT: I don't know where he is going. Go-ahead.
A. I don't know him.
BY MR. McGILL:
Q. Have you ever spoken to Judge Ribner, or Justice
McDermott about the Defendant's reputation?
MR. JACKSON: Objection.
THE COURT: Sustained.
MR. JACKSON: May we have a sidebar, please? Never
mind.
MR. McGILL: Mr. Jackson thinks that is amusing.
THE COURT: I ruled. Come on.
MR. McGILL: I would ask if this witness would review
---
MR. JACKSON: (Interposing) May we see you at sidebar?
Page 16.
Cross-G. Cheeks
MR. McGILL: I emphatically object to the way I have been
restricted on cross-examination.
THE COURT: I can't help it. What do Judge Ribner and
Justice McDermott have to do with this case?
MR. McGILL: I would like to develop from these witnesses
their sources of information, how long it has been and has anything
changed over a period of time.
THE COURT: Fine. You can go to their sources.
MR. McGILL: As soon as they go to the source --
THE COURT: (Interposing) Why did you pick out Judge
Ribner and Justice McDermott? What do they have to do with this?
MR. McGILL: I want to see whether these notes of
testimony would change her opinion. He cannot get all this in, Judge.
THE COURT: I don't care how many character witnesses he
has.
Page 17.
Cross-G. Cheeks
(At this time the sidebar discussion was concluded and the
following is in open court.)
MR. McGILL: No questions.
MR. JACKSON: Thank you very much Miss Cheeks.
MR. JACKSON: Jerome Hunter.
BY MR. JACKSON:
Q. Good morning, Mr. Hunter. Mr. Hunter, do you know
Mumia Abu-Jamal?
A. Yes, I do.
Q. How long have you known him?
A. I have known Mumia for say a year and a half.
Page 18.
Direct-J. Hunter
Q. What is your occupation, sir?
A. I do public relations for the Nation of Islam under
the direction of Brother Louis Farkon.
Q. Tell us how it is that you came to know Mr. Jamal?
A. At the time Mr. Jamal was the president of ABJ, which
is the Alliance of Black Journalists. ABJ was wanting to get Brother
Farkon to speak to them and he came to me asking if I could get in touch
with Brother Farkon so maybe they could come together and he could speak
to them.
Q. Do you know other people who know Mr. Jamal?
A. Yes.
Q. Among those other people that you know who know Mr.
Jamal what is his reputation for being a peaceful and law-abiding
citizen?
A. Okay. That is his reputation. A peaceful and
law-abiding citizen.
From, you know, talking to people about Jamal, because as
a result of getting in touch with me I wanted to know more about Brother
Jamal and that was all that they had told me of him, that he was a
peaceful and law-abiding citizen.
Page 19.
Cross-J. Hunter
MR. JACKSON: Thank you very much. Cross-examine.
BY MR. McGILL:
Q. Sir, in your attempts to find out more about this
Defendant did you have occasion to ask people about various statements he
had made over the course of his life?
MR. JACKSON: Objection.
A. No, sir.
THE COURT: I will let him answer that.
BY MR. McGILL:
Q. You are unfamiliar then with any kind of published
statements he made about anything at all about his beliefs or about his
feelings on certain issues?
MR. JACKSON: Objection.
THE COURT: Sustained.
BY MR. McGILL:
Q. Has anybody told you anything about things
Page 20.
Cross-J. Hunter
that he has said in the past and organizations he has
been associated with?
MR. JACKSON: Objection.
THE COURT: I will sustain the objection.
MR. McGILL: Nothing further.
MR. JACKSON: Thank you very much.
MR. JACKSON: Akil Chionesu.
BY MR. JACKSON:
Q. Good morning, sir. Do you know Mr. Jamal?
A. Yes, sir, I do.
Q. How long have you known him?
A. Roughly four years.
Q. And could you tell us how it is you came to
Page 21.
Direct-A. Chionesu
A. Well, initially I met Mr. Jamal through program
activities we had at the center. I work with the African Community
Learning Center in North Philly and through that time I have come to know
him. As a matter of fact, he serves on our Board of Directors.
Q. Do you know other people who know Mr. Jamal?
A. Yes, I do.
Q. Among those other people that you know who know Mr.
Jamal what is his reputation for being a peaceful and law-abiding
citizen?
A. His reputation is outstanding.
MR. JACKSON: Thank you very much. Cross-examine.
BY MR. McGILL:
Q. Any of your sources of his reputation would they
include statements that he made in the news media during the course of his
life?
MR. JACKSON: Objection.
Page 22.
Cross-A. Chionesu
that question.
BY MR. McGILL:
Q. Any of the sources of information that you had
inquired into in determining whether or not what his reputation was, the
sources that you would talk to in order to find out what his reputation
was, did they include some periodicals or individuals that may have said
certain things that he said in the past?
A. No.
Q. Or about organizations that he had been associated
with?
A. No.
Q. Do you recall at anytime hearing from anybody --
MR. JACKSON: (Interposing) Your Honor, I am going to
object.
THE COURT: I will sustain the objection. He said no.
MR. McGILL: Thank you, sir.
MR. JACKSON: No further questions.
Page 23.
Direct-H. Baranoff
MR. JACKSON: Harold Baranoff.
BY MR. JACKSON:
Q. Mr. Baranoff, do you know Mumia Abu-Jamal?
A. Yes.
Q. How long have you known him?
A. Over a year.
Q. And how is it that you came to know him?
A. Well, working with community newspaper and being up in
our office.
Q. Do you know other people who know him?
A. Yes.
Q. Among those other people that you know who know him
what is his reputation for being a peaceful and law-abiding citizen?
A. His reputation has always been peaceful and
consistently working for justice.
MR. JACKSON: Thank you, sir.
Page 24.
Cross-H. Baranoff
BY MR. McGILL:
Q. You said he has always had a peaceful reputation?
A. As far as I know Mumia and everyone I know always has
spoken well of him.
Q. And have you at all accumulated any sources of
information in reference to activities in the past and comments that he
may have made?
MR. JACKSON: Objection.
THE COURT: I will let him answer that question.
BY MR. McGILL:
Q. Did you use any sources of your information in order
to reach --- excuse me. In order to testify as you have, did you use any
kind of newspaper articles or any kind or periodicals or any kind of
information from others about certain things he has said?
A. I am speaking only from people that I know.
Q. Okay. Did they tell you about things he said,
Page 25.
Cross-H. Baranoff
MR. JACKSON: Objection.
THE COURT: I will sustain the objection.
MR. McGILL: Nothing further. Thank you.
MR. JACKSON: Robert Sanders.
MR. McGILL: This is another list?
MR. JACKSON: It is one from yesterday.
ROBERT SANDERS, having been duly sworn, was examined and
testified as follows:
BY MR. JACKSON:
Q. Good morning, Mr. Sanders.
Page 26.
Direct-R. Sanders
Q. Mr. Sanders, do you know Mumia Abu-Jamal?
A. Yes.
Q. Do you know other people who know Mr. Jamal?
A. Yes, I do.
Q. Among those other people that you know who know Mr.
Jamal what is his reputation for being a peaceful and law-abiding
citizen?
A. It is very good. A very dedicated person.
MR. JACKSON: Thank you very much. You may cross-examine.
BY MR. McGILL:
Q. How long have you know him?
A. For about three years.
Q. How long have you asked people about him?
MR. JACKSON: Objection.
THE COURT: Rephrase the question.
BY MR. McGILL:
Q. What are your sources and how?
A. Other people and me knowing him personally.
Page 27.
Cross-R. Sanders
Q. Well, are you making the judgment of your reputation
on personal knowledge you have or on what people say?
MR. JACKSON: Your Honor, objection.
THE COURT: I will allow it.
A. Both.
BY MR. McGILL:
Q. And of the people that you have talked to did they
tell you about associations he has been involved in as well as statements
that he has made in the past?
A. Yes.
MR. JACKSON: I object to anything further. May we see you
at sidebar?
MR. JACKSON: Your Honor, I am objecting for the same
reason I objected in the past. He is trying to do the same thing you
already ruled upon. We already know specific acts and specific words
spoken by him or others about him or that maybe spoken
Page 28.
Cross-R. Sanders
by him are not relevant subject matters to cross-examine,
or impeach character testimony with.
MR. McGILL: This is a little different. This man has
actually said he has heard things.
THE COURT: I don't like the law as it stands now on
reputation evidence, but it is not for me to make that decision. I told
you that the Supreme Court has recently ruled on this issue and whether I
like it or not it is there.
MR. McGILL: I am not saying that, Judge.
THE COURT: Prior to this last case you would have been
able to do what you are trying to do. It would have been perfectly all
right.
MR. McGILL: He talked about sources of information. I can
test his competency of the sources of information. That has not
changed.
THE COURT: Yes it has.
Page 29.
Cross-R. Sanders
MR. McGILL: I can't?
THE COURT: That is what the law says.
MR. McGILL: I can't use bad acts in the past.
THE COURT: This is bad acts. Bad words or bad acts.
MR. JACKSON: It says specific acts.
THE COURT: Specific acts. I realize it, but I keep
telling you time and time again that a jury is not going to decide this
case solely on reputation evidence. Do you think they are going to forget
everything else that is in here? Look, there are a lot of things in the
law that you may not like and you may feel --
MR. McGILL: (Interposing) Respectfully, I am not saying I
don't like it, Judge, I am saying I think you are wrong, respectfully.
Page 30.
Cross-R. Sanders
some cases.
MR. McGILL: Judge, I have already given it to you and you
said it is not appropriate.
THE COURT: It is not to this. I am talking about
reputation. What can you ask on cross-examination and reputation evidence.
Give me a case?
MR. McGILL: You can always cross-examine the sources of
information.
THE COURT: No. Sources, yes. Did you talk to people in
the neighborhood? If they say no --- in other words, if it is a wrong
opinion then you exclude it. I understand that. They are not talking about
that.
MR. McGILL: You have your mind made up and I am not going
to change it. I think it is wrong. This is very damaging to me and as far
as I am concerned it is improper, because I am extremely limited on my
cross-examination.
THE COURT: Mr. McGill, I told you
Page 31.
Cross-R. Sanders
to look up the law and show me cases.
MR. McGILL: I have and you have not agreed.
THE COURT: It is not the law-on cross-examination. Could
you say to him "Did you at one time hear that he pulled a gun on somebody"
Could you say that?
MR. McGILL: No. You couldn't do that.
THE COURT: What is the difference between saying that and
saying did you hear that he said we should kill all certain type of
people? Isn't that the same thing?
MR. McGILL: No.
THE COURT: You say no and I say yes. That is where we
differ.
MR. McGILL: No further questions.
MR. JACKSON: No further questions,
Page 32.
Your Honor.
MR. JACKSON: Your Honor, may we have a brief recess?
THE COURT: We will take a five minute recess.
MR. JACKSON: Your Honor, there are several other matters
I would like to bring to Your Honor's attention. We have now found there
is another police officer that we would like to have testify. It is
anticipated to be very brief. Mr. McGill just advises me that he is not
present today. I would ask that of course that he be called in.
THE COURT: When did you ask for this witness? Let me see
you over here.
Page 33.
You have heard all of the evidence and, by the way, there
is no more evidence. No other words from that witness stand will be
presented to you. Whatever explanation or whatever reasons you are still
seeking will not be forthcoming. The arguments of counsel are not
evidence. You have heard the evidence. You and you alone will be the sole
arbitrators of the truth as to what happened at 13th and Locust on
December the 9th at about 3:50 a.m.
At the conclusion of the remarks by me and Mr. McGill,
His Honor Judge Sabo will provide to you some guidance. He will tell you
what the law is. Not necessarily how it should be and not
Page 65.
necessarily how it will be, but what it is today. You
have sworn an oath when you were selected as jurors, notwithstanding any
feelings that you may have to the contrary, that you will follow the law.
It was based on that promise that each of you were selected as jurors.
I know many times during the voir dire, the jury
selection process, we went back and forth and asked you a number of
questions, some of which probably seemed pretty insane to you and pretty
crazy and pretty silly.
As I indicated to you that is the only way that we have
an opportunity to find out how you feel. Whether, in fact, you are going
to be fair.
Just like we questioned you we questioned these witnesses
on direct and cross-examination. Why is that? The reason for that is it
should be clear and from time-to-time people say one thing to one person
and another thing to another person
Page 66.
depending on who is asking the questions and when they
are asking and why they are asking. So, that when you begin to assess the
credibility or believability of a witness you must say, is there some
reason for this person to be saying it without deciding whether the person
is telling the truth. Is there some reason for that person to be giving
the testimony they are giving? Particularly if they have given statements
contrary in the past. Is it a mistake now? Is it a bias? Is it a
prejudice? Is there a promise being made? Is there some hope that some
benefit would be gained by their testimony?
We have had a number of witnesses who testified, and I
will touch upon their testimony in a moment. I only want to remind you
that when a lawyer addresses a jury and begins to comment on the testimony
of witnesses, he runs the risk of saying something that perhaps that
witness didn't say, but I assure you that my attempt at
Page 67.
restating some of the responses of the witnesses, is to
be as clear as I can as to what they are saying. Because it seems to me,
if you don't have an opportunity to ask these persons questions someone
has to assume the role of seeking the truth, the whole truth.
You are not to believe only and solely that which is
presented by the Commonwealth; that which the Commonwealth wants you to
believe. You have heard the witnesses that were called by the defense.
Witnesses that the Commonwealth had interviewed. We called no witnesses
that the Commonwealth had not interviewed. What we did was to say this
jury ought to hear everything that was said. This jury ought to hear the
full truth and not just part of the truth that benefits the
Commonwealth.
As you will recall some of the witnesses we have put on,
they said some damaging things to us. Nevertheless, we felt it was our
responsibility to give you
Page 68.
an opportunity to place you in an environment where you
could assess the believability of the witnesses after hearing all of the
testimony. After hearing, who the witnesses said shot Officer Faulkner, as
to who the witnesses said shot Mumia Abu-Jamal, as to what the witnesses
said and what the truth is.
You have heard many times, me ask why a certain test was
not given? Why was this not done? This is something that me, Tony Jackson,
assumes and thinks should be done, but it is after years and years of
experience you understand that there are a number of resources available
to the Commonwealth. One only wonders why were they not brought to bear in
this case? Was it because of some preconceived notion, preconceived bias
as to what happened?
You know if you are told from the beginning Mumia
Abu-Jamal shot Officer Faulkner and you believe that and you then temper
and gear your investigations in that
Page 69.
direction then you are often times left with the
possibility of not turning over every stone. As Detective Thomas said,
"You don't turn over every stone because you already know, or at least
already assume what is going to be true."
An example of that would be Detective Thomas saying,
"Well, I assumed after talking to Dessie Hightower that he saw Veronica
Jones."
Veronica Jones told us, of course, that she was wearing a
light top that evening. She told us she didn't wear her hair in braids.
She didn't have long hair.
You are saying what could he have done? I don't know. I
have no responsibility to prove anything to you. My responsibility is
large enough as it is without assuming the responsibility and rule and
burden of the Commonwealth, as well as, defending Mr. Jamal for his life
and liberty. It is not my responsibility.
There could always be more done.
Page 70.
Why was it not done? Well, some witnesses have said it
was Mr. Jamal who did it. No one ran from the scene. Dessie Hightower said
he saw someone else run away from the scene who was wearing a red and blue
jacket, or red and black jacket. I don't recall, or a sweater. The person
in his original statement, if you recall it, the first response at that
time, the first question asked of him on December the 9th at approximately
5:00 a.m., he responded he saw someone who looked like Jamaican. I
understand what that means. When we talk about Jamaicans, many times we
talk about the Rastafarian sect which have the same hair style very
similar to Mr. Jamal's. He said in that first statement, the very first
answer, so it wasn't something later on, where he went back and read the
newspaper and heard the news and said it. He said that without any
coaching and without anything at all. He said that to you right away.
There is something else I would like
Page 71.
to point out to you. The character witnesses. You may ask
after you heard one you have heard them all. They pretty much give the
same answers as to what his reputation was for being a peaceful and
law-abiding citizen. You would probably wonder why do I have to put those
fifteen character witnesses on the stand to say that Mumia Abu-Jamal is a
peaceful and law-abiding citizen. They are all friends and they are all
people who know him. So, of course, they are going to say that.
Who else could I bring in? I couldn't bring in somebody
that doesn't know him to say that he is a peaceful and law-abiding
citizen. That is what our courts do. They say you bring in people who know
him from his community, from his profession, from his work and from his
life and let them tell us what his reputation is.
Why is that? Well, the policy and thought of the law is
that a person lives his life each day in a manner that he lived it
Page 72.
pretty much in the way he lived it yesterday. That you
are not going to live your life style for perhaps twenty-seven years and
then all of a sudden decide that you are going to live it another way. If
he is known to be peaceful, known to be law-abiding then the theory in the
law is that you are going to continue to live that way. Otherwise, what
good is it to have a good reputation? What good is it to be peaceful and
law-abiding if someone can just arbitrarily come out and say no you are
not peaceful, or no you are not law-abiding? So, you bring in character
witnesses who attest to your reputation from people who know you and
people who work with you and people who live in your community.
It may offend some of you, and I hope not, that there are
black persons I who say "In the black community he is thought of a certain
way." Well, that is where he lives. He lives in the black community.
There were, of course, white
Page 73.
citizens whom I have called and they said they knew him
and they knew other persons who knew him. Among those persons who know
him, he has a peaceful reputation and a law-abiding reputation.
So, the thought again is that if you live your life
twenty-seven years in a certain kind of way, there is no reason to think
that one day you are going to act out of the ordinary any more than either
one of you. Whatever kind of life styles you live if we were to ask
someone, even if they haven't seen you for months, they would say, "Well,
I know juror number one, or juror number three, or juror number twelve
lives this kind of life." If they say one of you was on a flying trapeze
one day in Center City, well, that is not like that person. That is not
like that person.
Again, the thought is you are going to continue your life
because you have already established a course of life style that you
choose to follow, a law-abiding life,
Page 74.
a good life, a life of peace.
Mr. Jamal has been said to be very articulate. Very
gentile. Very peaceful. The people who have said something to the contrary
are people whose character is indeed in question themselves. Of course, we
will get to that.
Let me just dispense with one other little thing for
you.
At the beginning of this trial the crier read out certain
Bills of Indictment saying "You are charged with murder. You are charged
with possession of an instrument of crime." That is a Bill of Information
and I have the copies of them. That is not evidence. The Bills of
Information simply say someone said you committed a crime. You have to
defend yourself. That is all that it is. I don't want you to think there
is anything chiseled in stone about that Bill of Information. It is simply
a record. It is a simple means for the court to keep track
Page 75.
of a certain court file. That is all the Bills of
Information is.
So, I don't want you to think there is something
mysterious, or something onerous about that. It is only a piece of paper
that has some names and some writings on it. That is all it is.
The presumption of innocence that we talked to you about
from the very first time that you were perhaps, questioned as jurors it
was suggested to you that that presumption of innocence remains in tact
and even now that presumption of innocence follows and surrounds Mr.
Jamal, as it would with anyone, anyone who is charged with a criminal
offense here in America. That presumption of innocence, just like good
character, is evidence. It is evidence itself of his innocence. It is not
something that you should say, "Oh, they are just some words and I am
going to put them aside." His Honor, Judge Sabo will tell you that
evidence of good character is evidence. It is
Page 76.
evidence that he is a peaceful and law-abiding
citizen.
He will further tell you that the presumption of
innocence follows Mr. Jamal until you go into the jury room and unless and
until the Commonwealth strips him of that innocence. Strips him with proof
beyond a reasonable doubt that, indeed, he and he alone was the individual
who shot and killed Officer Daniel Faulkner. If you are not convinced of
that, if you are not convinced that this incident happened in the manner
in which the prosecution has indicated, then you have reasonable
doubt.
Reasonable doubt. I am a lawyer and I have studied
reasonable doubt, so much now that I kind of have a feel as to what
reasonable doubt is. It is very difficult to tell someone or to teach
someone, or to suggest to someone what reasonable doubt is.
What is reasonable doubt? Is reasonable doubt some kind
of mathematical
Page 77.
certainty? Can we plot it out on a graph or use some kind
of formula? No.
The Commonwealth is not even required to prove guilt to some
mathematical certainty, but they have to prove it to you beyond a
reasonable doubt that, indeed, he is guilty of the crimes which they have
charged him with.
Reasonable doubt in most persons' life experiences maybe
suggested by perhaps these couple of examples.
Many of you have purchased homes, or thought about
purchasing homes and you contact a real estate agent and say I want to buy
a certain house, or I like this house. You go to the agent with your wife,
husband, loved one, or whoever it is, and you go there and you look at the
house. You start kicking on the walls and that kind of stuff and turning
on the water and all that. I don't know what that does, but you do that
anyhow, because you say you want to make a good decision about what you
are going to do.
Page 78.
That decision in buying a house is probably one of the
more important, or most important decision that you would make in a life
time and you want to be kind of sure that you make the right decision. So,
you look through the basement and go to the top of the house. You come
away and you say, I think I want that house. I feel pretty good about
that.
You begin to leave with the agent and you are walking
away and you just kind of look back at the house and you see some shingles
kind of falling back. What do you do? Do you say that is all right I still
want it, or do you say, I wonder what that is an indication of? Do you say
what is wrong with the shingles? Why were they falling? Is something wrong
with the roof that I didn't see?
You then have what is called a reasonable doubt as to
whether, in fact, the house is as sound as you think it is. That is an
example of reasonable doubt. There
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are other examples of reasonable doubt and, perhaps we
can touch on them and perhaps we won't, but I want you to understand that
that is the duty that you have. It is not something that I am begging you
for. It is not something that I am desirous of. That is your duty as
jurors. You are to be convinced that Mr. Jamal is guilty beyond a
reasonable doubt. For if you have reasonable doubt he is not guilty.
The Commonwealth must prove each and every element of the
crimes to you. Not some parts, not most parts, but each and every element
of the crime.
Judge Sabo will give you those instructions at the
conclusion of the trial. That's what must be done. If you are not again
convinced beyond a reasonable doubt of his guilt you must find him not
guilty. It is just that simple.
Let me suggest to you, ladies and gentlemen, that at the
conclusion of the trial when His Honor Judge Sabo reads and
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gives you a recitation of the law, he will give you the
definitions of the crimes. He will give you the definition of murder in
the first degree and murder in the third degree. He will give you the
definition of voluntary manslaughter.
I say to you now if you believe beyond a reasonable doubt
that Mumia Abu-Jamal committed the crimes as the Commonwealth has
suggested, then you should find him guilty of murder in the first degree.
I am his defense lawyer and I am telling you that. I don't want you to
compromise this verdict. I don't want you to say well, I am not really
sure if he is guilty of murder in the first degree. Maybe he is guilty of
murder in the third degree, or maybe he is guilty of voluntary
manslaughter. I am saying to you, if you are not convinced that he is
guilty of murder in the first degree then he is not guilty, because that
is what the Commonwealth said they would prove, that he was guilty of
murder in the first degree. Don't compromise
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your verdict in anyway whatsoever. Face it head-on. He is
either guilty or not guilty. That guilt must, again, be proven beyond a
reasonable doubt.
You should also understand that although there is proof
that is presented, and you can accept that and consider it, you must also
understand that the lack of proof is also something that you should
consider. If there are certain things that you want proven, certain things
that you wanted to hear, certain things that you wanted to know that were
not provided to you and if that proof, that explanation, that reason is
not provided to you, then the Commonwealth has failed its responsibility.
But it has not necessarily failed to you and you have not failed in your
responsibility as being fair and impartial jurors. You must not feel for
any reason whatsoever that if you find him not guilty that you are doing
something that is wrong. You as jurors are the ones to make the decision.
Not these people. Not any
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of them. It is your responsibility. You and you alone
must live with your decision each and every day of your life. So, that is
why you need to take your time and decide what the true facts are.
You cannot guess or presume. You have to know beyond a
reasonable doubt what happened. You have to know whether it was Mumia
Abu-Jamal that fired that weapon, or if it was his brother, or if it was
someone else.
One of the situations that we do find ourselves in, in
America, in our criminal justice system is that although the defense has
no obligation to prove anything, oftentimes there is this temptation that
maybe I should say this. You don't do it because we don't have a situation
where Cane must turn against Abel, or Abel against Abel. Brother must
testify against brother. There is no responsibility, none whatsoever, for
Mr. Jamal to take that stand and say anything to you. That is something
that
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wasn't just created for Mr. Jamal when he was arrested.
It wasn't created last week or last month or last year. It is a principle,
a founding principle and fundamental principle, of our criminal justice
system that the defendant need not take the stand in his own defense.
Particularly, I suppose if you may have to give testimony against someone
that he doesn't want to.
Mr. McGILL: Objection.
Mr. JACKSON: The rule is that he need not take the stand
in his own defense. For whatever reason he decides not to take the stand
you must not look beyond it. His Honor Judge Sabo will tell you not to
draw any adverse inferences from his failure to take the stand.
What does it mean?
Don't assume that because he doesn't take the stand that
he is hiding some guilt of his own. You are not permitted to make that
assumption. Indeed, you are cautioned and ordered not to do that.
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When you are asked to retire to the jury room to
deliberate and make your decision in this case, you of course, will listen
to your fellow jurors in terms of what they believe, or what they feel has
been proven beyond a reasonable doubt. Each of you have an equal voice
into this decision, because it takes twelve of you to decide the guilt or
innocence of Mr. Jamal. So, each and every one of you have an equal voice.
Each and every one of you is required to consider the explanations, the
arguments of your fellow jurors. You must do that respectfully and
considerately. Listen to your fellow jurors and if one of your jurors has
some doubt as to the innocence or guilt of Mr. Jamal hear that out. Hear
that explanation before deciding once and for all what the verdict is,
because oftentimes you may have missed some testimony. You may have been
focusing on something that they have not heard, or vice versa.
So, I implore you to listen and
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to consider each and every aspect of testimony that has
been given from that witness stand.
I would like to apologize to you if I am taking a long
time to give this summation. I am not. I am not. You have been here a long
time. You have been asked to endure perhaps more than one should ask you
to endure. I am going to apologize for that.
Mr. Jamal is on trial for his life and his liberty. It is
a long time. I may talk to you for another half hour or an hour. I don't
really know. I am going to talk to you until --
Your Honor, may I have a moment?
Forgive me?
I am not threatening you with time. I am simply saying
that please don't ask me to rush through this. That is the only point I
want to make. It is important that you listen to me.
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Let's now talk about the testimony of those witnesses. I
guess that is really what you want to listen to and that is what this is
about, the testimony that came from that witness stand. I am not going to
say look at the prosecution witnesses and look at the defense witnesses,
because each and every witness was presented for a purpose. So, for me to
go and say that one person was a crucial witness or not I can't say that,
because that is your decision. I just ask you to remember that each
witness is important.
Cynthia White testified in this case. Cynthia White gave
four or five statements. We didn't hear the tape recorded statement, but
we can assume that for the most part it was pretty much as she testified
in this case, or as she had given a statement to the police.
Before we go to her specific testimony, again, when a
witness testifies you ask yourself why is that witness
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testifying in the first place and then why is that
witness testifying in a certain way in the second place.
Why is Cynthia White testifying? Well, we know on
December the 9th it was the day before she was to appear in court,
December the l0th. She didn't appear December the l0th. We know a bench
warrant was issued for her arrest. She gave a statement to the police and
remember that in the first statement on December the 9th she never said
anything about William Cook punching the police officer, but she said she
was in a position to see everything that happened. We already know she
didn't see everything, but for the moment she gave a statement about what
happened. She didn't say anything about William Cook being struck by a
police officer. She didn't say a lot of things. We will get into that.
She gave an address. Was that her address? No. In fact,
each and every time that they got a statement from her, or had
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gotten her to testify after she was arrested, each and
every time, not most of the time or many of the times, but each time she
was arrested what did she do? "I got some more information for you." She
is reading the same newspapers you are reading.
I know everyone has heard something about this case and
we are not going to pretend that you didn't read it. She is reading the
same newspapers that you are reading.
What did she do after December the 9th? She went out and
got arrested again. What did she do? She called homicide and said, "I got
some more information for you." "Come on up, Cynthia."
She made another statement.
She went out for a little while and again got arrested.
"Homicide, I got some more information for you."
Why is that important? The only reason I am saying this
is if she saw what she said she saw, why didn't she tell them all
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the first time, or the second time? Why does it take her
three, four, five times to give the statement? These aren't little things
that she was forgetting. These are major things.
I think you had the opportunity and you heard her on the
stand. I must apologize for this. When I cross-examined her, often times
what she did say was "I can't remember." When Mr. McGill questioned her
she remembered everything.
Why do you think that is? Well, you should understand by
now that you cannot cross-examine a person on what they don't remember. If
I ask you what did you say on so-and-so day and you say, "I don't
remember," there is nothing I can do.
What did you do on such-and-such a day? I don't
remember.
When you say you don't remember, or a witness says they
don't remember, there is nothing I can do with that testimony. There is
nothing I can do with it.
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She has given us each and every time another story. One
time she testified that she saw the man running across the street and she
saw a gun in his hand.
Now, I don't know about you, but assuming that you could
see a person running across the street that night with a gun in his hand,
if I remember seeing the gun I would at least remember what hand. She
doesn't even remember what hand.
You say, "Oh, yes she does, because she said so when she
previously testified. She said it was the left-hand.
Well, she demonstrated from the notes of testimony from
her previous hearing in this matter indicating to you she said "I am
right-handed. That is why I said the right-hand, but it was the
left-hand." When she testified in court she said, "I don't remember what
hand it was."
So, what is it? Is she now saying it wasn't the
left-hand, or she doesn't remember if it was the left-hand,
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because she heard that Mr. Jamal had a holster for a
right-handed draw?
So, if you assume for a moment that a person is
right-handed and has a right-handed holster you say right-handed. It seems
logical and reasonable to me that you don't put a right-handed holster on
a left-handed person. I don't know, but again, she is reading these
newspapers, but she has had more of an opportunity than you to know what
other people are saying, because she has testified in this hearing and she
has talked to Mr. McGill and she has talked to the detectives in this
case. She knows what is going on. She knows that if her testimony is
consistent with their theory then it helps her.
How does it help her? Veronica told you how it would help
her. She wouldn't be picked up like the rest of them. Veronica said, "Why
don't you pick-up Cynthia like the rest of us?
"What did she say? The police told
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her that if you give testimony like Cynthia then we don't
do that to you.
Low and behold what does Veronica do when she comes and
testifies? When she originally gave a statement, she said she saw those
two men running across the street after the shooting. What does she tell
you in court? Oh, no. I just saw them standing.
Why do you think she does that? Because she saw it
benefited Cynthia. If she gives the testimony that the Commonwealth and
the police want, she can go out there and work free.
You know, it is like you now have a credit card to go out
and work. We are not going to bother you. We are going to treat you like
Cynthia, and she told you that.
You can ignore it if you want. That is what she told you.
It is not something that I am conjuring up in my mind. I spoke to her the
very first time when you heard me ask her questions. The very first
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time I talked to her I am basing my examination on the
statements that the district attorney's office gave me. She previously
said she saw two men run from the scene. Why now does she say, "Well, I
didn't say that they were running?" The detectives took a statement and I
only signed one sheet of paper. Somehow even though she signed one blank
sheet of paper with the diagram, and the diagram shows people and shows
her on Locust Street. But in any event, she said in that statement, she
saw the two people run away and she later finds out that that is
inconsistent with the prosecution's case. That is not going to help them.
She remembered back in January they said if I give the testimony they
want, if I give testimony like Cynthia, she wouldn't be picked up.
Has she been picked up? I don't know. You don't know.
Cynthia told us she was subsequent to that. Veronica
never told us she was picked up, but we know she has given different
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testimony and the judge will tell you that in assessing
the credibility or the believability of Veronica, Cynthia or any witness
that if they lie about one thing then they will lie about another thing.
You can believe part of what they say, none of what they say, or all of
what they say. That decision is up to you.
There is something in the law, and my Latin is bad, but
the expression goes "Falsus in uno, falsus in omnibus," if you lie about
one thing then you lie about everything. Consider that. Consider whether
or not Cynthia is telling the truth or Veronica is telling the truth, or
if they are lying, or what they are lying about. If you have to guess, or
if you have to presume and assume, that is reasonable doubt and you are
not permitted to do that. You have to reconcile what they say with some
physical factor, with some corroboration. You can't just say, "Well, I
know she is lying about something, I guess it is this, or
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I guess it is that." You are not permitted to do that,
because you weren't there and I wasn't there. So, if it is not credible
then don't believe it, any of it, because you know you have been presented
with a reason for her to lie.
Now, am I suggesting that there is some major conspiracy
among the seventy-five hundred police officers in the City of
Philadelphia? I am not necessarily saying that. I don't have the means or
the resources to make that determination. All I am saying is for those
witnesses who testified in this case there is a reason for their testimony
and you have to make that assessment. Just like you make an assessment if
you are going to buy a car from a used car dealer.
You know the old story "Would you buy a used car from
this person?" I mean you look at a person and you look at whether there is
a twitch in their ear, or if they shake, or whatever it is, to determine
whether or
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not that person is telling you the truth. Whatever those
reasons are use your common sense in this case just like you do when you
are outside of City Hall.
One of the other things that Cynthia White said in her
original statement, she said, "I saw a man run across the street, fire
three or four, five or six shots, I don't recall, then the officer
fell."
I made a point of that and I guess that is one of the
points that you may recall. She said, "I didn't really mean it that way. I
didn't really mean three or four shots then he fell. I mean there were
three or four shots and after one or two of those shots he fell."
When she previously testified in a hearing in this matter
she said there was one shot and the officer fell. One shot and he fell.
Later on what does she say? She says, "Well, it was one or two shots. He
didn't fall right away. He turned around and he twisted and moved."
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Why is that? Because then she understood and recognized
that the place she put the officer was not where he was. He was not found
between the Volkswagen and the police car, but he was found between the
Ford and the Volkswagen. You maybe saying, "Well, one car length isn't
very important." If you consider the testimony of all these witnesses when
they say there was one person running away or two people running away it
is important that you know where this event happened. In order to
determine what the truth is you have got to know where the truth happened.
You can't say wherever it happened this is the truth. Part of what you
need to know is where and how. If you are not provided with that
information you then have to guess again.
Cynthia said in a couple of statements --- I am not going
to tell you in the first statement she said this, that and the other, and
in the second she said something and in the third and fourth she
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said another and in the hearing on the 5th she said one
thing and --- I am sorry. The hearing on the 8th she said one thing and
the hearing on the 11th she said another thing. She did say prior to her
testimony here in court that the man when he ran across the street, he was
ten feet away when he fired. She said she didn't see the flash, but that
is when she heard the gunshot. She didn't see any flash. We know from the
testimony of the medical examiner and others that if the officer was shot
by someone, and we know he was shot by someone, it had to be within twelve
inches.
So, what is Cynthia saying? I am not good at distances. I
am not good at feet. I am not good at telling height. I am not good at
weight. She is not good at anything, I guess, because she said the man who
shot the police officer was short. She said her friend Prince is tall.
Prince is about the height of Mr. Jamal, but she said, "Well, he is not
tall." She didn't
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say Mr. Jamal was short. She said on December the 9th
that the man was short.
Mr. Chobert testified and Mr. Chobert said he was six
feet, two hundred and twenty-five pounds.
Who did they see? Did they see the same person or did
they see different people? You may say sometimes when people look at
things they see different things. I understand that. We want to know what
the truth is and we want to know who they saw shoot the officer. We want
to know if, in fact, the person running across the street when he raised
his hand, if he raised his hand if there was a firing from that person. No
one who testified in this case said they saw a flash from the first shot.
What did they say? The subsequent shooting, yes, I saw the flash." If that
was the same gun that was used in the first firing then why didn't someone
see the flash the first time? They were in a position to see the gun. Why
didn't they see the flash then? If the
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person running across the street was the one who did the
shooting. Could it have been that someone else did the shooting? They saw
the flash of the weapon on the subsequent shootings, but no one,
absolutely no one, saw the flash of the first shot. We know each and
everyone of those other shots they saw the flash. Is it a coincidence that
no one happened to see the first one, or is it because there was no flash
from the person who was running across the street, because there was no
firing?
Before I leave Cynthia White I think I probably have to
talk about her a little bit as we go through the testimony.
One of the things that Mr. Chobert told us, I believe it
is Chobert, and again it is your recollection that is going to count, he
is the one that said one of the persons had an Afro haircut. Not
Dreadlocks. Afro haircut.
We have pictures of Jamal's brother. Dreadlocks. Mr.
Jamal. Dreadlocks. Mr.
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Chobert made a distinction between Dreadlocks. He said
Move-like hairstyle. He said this man had an Afro haircut.
Who had an Afro haircut that we know about? Cynthia
White, remember she talked about this man she was talking with earlier? I
asked what did he look like? Well, he was heavy set and he was six feet
tall. He had an Afro hair style.
Do you remember that? Cynthia told us what happened to
him. She said she saw him talking to the police and never saw him again.
You haven't seen him either. I certainly haven't seen him. Where is he?
Who is he?
We don't know his name and we don't know his whereabouts.
I think you want to know who he is. I think you want to know which police
officer he talked to and what he told that police officer.
We don't have the resources to obtain that information.
We don't have the burden of obtaining that information, but the
Commonwealth has the burden of proving
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someone guilty beyond a reasonable doubt. Also the
Commonwealth should have the burden as well to provide exculpatory
evidence, evidence that would tend to show that someone did not commit the
crime that they are accused of. We don't have that information.
You don't have that information. Joseph Grimes is the one
who does the leg work. I didn't question his qualifications, because you
know his qualifications. Joe Grimes testified that it is difficult to get
fingerprints off of weapons so you can match them up and compare them
positively. I don't really have any questions about that.
We talked about these points of comparison, nine to
twelve points. Well, what that means is if I lifted a latent print from
this place it maybe Tony Jackson's print and I want to compare it. So, you
take it and look at it and an evidence technician will say "Yes, in fact
that is the same one." You want nine to twelve
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points before you make a positive identification.
Well, we know that the characterization of fingerprints
are broken up into three basic characteristics, whirls, loops and arches.
So that if they may not be able to determine, in fact, who it was that
handled the weapon they might be able to exclude someone if all of these
patterns, arches and whirls and loops that was lifted from the gun was
something else then you would be able to exclude that person.
So, we understand about handling the metal part a number
of things may happen. What about the grips of the weapon? Did he even do
that? No. Why do you think he didn't do it? Well, they got Jamal and he
was arrested and he did it and he had the gun. Why take the gun? Why do
it? That is what he was told. Is that the professional thing to do? Is
that all that he could have done? Why not just take the extra step to make
sure?
Page 104.
Everyone is presuming and assuming. So, Joe Grimes tells
us, "Well, I guess it could have been done but it wasn't done."
I have asked a number of questions of witnesses as to why
certain things weren't done. It may not be important to them and for the
moment it may not even be important to you, but it is important to this
man. It is important to this man that they didn't do their job, because
they are saying, "We didn't do our job and we are going to still say you
murdered somebody."
If you are going to accuse somebody of murdering somebody
then you better be on your toes and do what you are suppose to do. What
they are saying in fact is, "We are going to accuse you of murder and we
are not going to present or discover the evidence that tends to show you
didn't commit the offense. We are not even going to present any evidence
that might suggest it was someone else."
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I think by now you ought to know, you ought to feel it
was really somebody else. I am not going to ask you who yet.
Anthony Paul testified. Anthony Paul is the ballistician
of great renown. He said the bullet that was taken from Mr. Jamal was
fired from Officer Faulkner's weapon. No argument, really. He didn't say
Officer Faulkner fired it, mind you, but that the bullet came from Officer
Faulkner's gun.
We heard from Dessie Hightower and it has not been
controverted by anyone that Officer Faulkner's gun was still in his
holster. We have not heard from anyone how Mr. Jamal was shot. That is
part of the explanation that you need to know before deciding the
case.
I don't believe, - - my belief is not really important,
but I would suggest to you that that is also proof what you need to know.
I am not simply suggesting to you that you just look at the proof I am
presenting. I am saying that you look at
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the proof that both sides are presenting together as a
whole before making your decision.
Then what did Anthony Paul say? He said, "Well, I looked
at some bullets -- at the bullet that was taken from Officer Faulkner and
it could have come from the small gun." What did he say about the bullet?
That it could have come from any multitude of millions of other guns. You
know what they are really saying when he says it came from a weapon like
that, that it could have come from this Smith and Wesson and it could have
come from any 38 weapon. That is all. That is all.
So, I don't want you to assume that just because he says,
"Well, it could have come from this gun," that it did. It could have come
from any multitude of millions of guns. I am not necessarily saying it
didn't come from that gun, but I am simply saying we don't know. You are
not allowed to guess. If the expert doesn't
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venture a guess certainly you shouldn't venture a
guess.
He indicated that Officer Faulkner's gun had a crack in
it. He said it was a fresh crack. He couldn't tell how fresh the crack was
in terms of the hammer. We don't know when that hammer was cracked, we
don't know how or by whom. We understand that there was some amount of
pressure required in order to fire that weapon. We understand further even
if we accept some or most of the testimony of the prosecution witness - -
strike that. Not the prosecution witnesses, but some of the witnesses. I
am not going to say prosecution or defense, because it doesn't really
matter. The witnesses have not indicated to us who fired Faulkner's
weapon. The witnesses have suggested that Officer Faulkner fell. Cynthia
told us at one time at least that he fell after the first shot and at
other times he fell after the second shot. Nobody saw him fire. So, if he
fired are you going to assume that he fired
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when he was on the ground or that he fired while he was
falling down?
Consider that. I am sure that is the Commonwealth's
theory. That while after being shot in the back, I don't know whether he
was suppose to have turned or fallen back. It depends on which one of
Cynthia White's stories you believe, if you believe any of them, because
one is he fell right away and he fell on his back and the other is he was
shot in his back and he turned around and fell on his back. So, if he
turned around she would have an opportunity to see his hand. She said he
reached for --- it looked like he was reaching for something. He never
reached for anything, but it sounds good. Doesn't it tend to make you
think maybe he did grab the gun? These officers, if you will note, don't
carry around these guns like Marshal Dillion; quick draw. Look at the
guns. You have seen the officers with their guns. How easy do you think it
is to get one out of the holster particularly after
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being shot in the back? Do you think it is easy? You are
shot in the back and while falling down you pull it out and fire a round.
It is not that easy. In fact, it is impossible. He has got to pull the
snap and pull the weapon out and he has to aim. He has to aim it at
somebody. This is, of course, if he, in fact, fired the weapon. I am not
sure, because I am speculating now to provide you with some reasonable
explanation of how Officer Faulkner did it. I really don't know. I am sure
he didn't do it. He was on the ground and fired the weapon. What did the
ballistician tell us about Jamal's wounds? He had to receive that wound
from within twelve inches. Whenever he received that wound. So, you are
saying the officer is on the ground and he points the weapon up somehow
and then he fires the weapon at Jamal.
If you accept the only testimony we have with regard to
Mr. Jamal, or whoever it was that was supposedly standing over top, not
bending over, remember, standing
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up shooting. Why is that important? It is important
because if the officer did fire a weapon at Mr. Jamal there would be an
upward projectile if he is down firing up. It is just that simple.
What did Doctor Colletta say? He said he had a straight
wound downward. It is clear that is the physical evidence that we have. We
know that Mr. Jamal had a wound that had a downward trajectory. The only
information that we have with regard to at least the shooter of Jamal, the
only evidence that we have of the shooter was that he was standing up over
top of the officer. No one of course saw him shoot the shooter or shoot
anyone else for that matter.
You saw Priscilla Durham and she testified and she has no
real ax to grind with anybody.
Well, first of all, Priscilla Durham like Officer Gary
Bell didn't give the statement until sometime in February. The shooting
happened in December. What did
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she testify about? Jamal claimed that he was shot, and
that he was beaten by the police. That is when she was asked the question
and then she said, "Oh, well, he made a statement." She said that he said,
"Yes, I shot the ---" whatever she said. "I hope he dies."
No one found that out until this man decided to say,
"Look, I am a victim and you are talking about Officer Faulkner."
We have many victims and we certainly have two victims,
Officer Faulkner and Mr. Jamal. He says, "I am a victim. Why does no one
talk about what happened to me? I want to know why I was shot."
Mr. McGILL: Objection to statements by the defendant who
did not take the stand.
THE COURT: It is noted.
Mr. JACKSON: He filed a complaint with the Police
Department and after that the complaint was filed by me on his behalf,
that is when the alleged statements were given and what does Priscilla
Durham say, she
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heard, "Yes, I shot him. I hope he dies." It doesn't
necessarily mean it was in response to a question. Assume for a moment
that she heard that. If he just wanted to boast, or if he wanted to be
arrogant as the Commonwealth would suggest, he doesn't have to say "Yes."
He said, "Yes, I shot him. I hope he dies."
Was it in response to a question? Well, Priscilla Durham
says no, because the police officers weren't asking him anything. They
weren't asking him anything at all.
How many police officers were around? Seven. Eight. Nine.
Ten. I don't know. Who else came in and testified that they heard him say
that? His former partner is the only other one who came in and said that
he said what Durham said. What about the other seven or eight officers, or
fifteen or so officers? Why didn't they come in and say, "Yes, we heard
him, too"?
Officer Gary Bell says he has been a police officer, I
think he indicated he was
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a police officer for perhaps eight years or so. Forgive
me if I am wrong. He said he never told anybody what he heard. I ask you
reasonably don't you think that it would be important for him to tell
somebody about that? I mean in conversations, or while drinking a beer.
Wouldn't you say to somebody "I heard him say he shot my partner"? He says
no. Not until you, Jackson, filed that complaint on behalf of Mr. Jamal.
That is when he came to his senses and said, "Well, yes, I heard him say
he shot my partner", or words to that effect.
Think about it. Think about that. Nearly two and a half
months it took him before he came out and said something that I would
consider to be rather significant.
Would you like a break? Fine. I just wanted to make
sure.
We have the testimony of Mr. Scanlon. Mr. Scanlon
appeared to be a fairly forthright individual. He testified I think
particularly in comparison to some
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of the witnesses who testified he presented a very
forthright appearance and you could accept some of the testimony or all of
the testimony or none of the testimony.
What did he say in his first statement to the police?
Well, he saw somebody run across that street. I think we can accept the
fact that somebody ran across the street. I am not debating that. He saw a
man run across the street. The officer was in the street and had a man
laying across the Volkswagen. After the officer struck that man who
supposedly was William Cook, struck him about the shoulders and back, that
man was beginning to fall. At about that time the man across the street
ran. The man was running across the street. He saw his hand go up. Yet not
seeing any flash, but then he heard a shot. He then began to tell us as
best as he could recall the relative position of the man he saw running
across the street and the man who was over the top of the car.
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Again, I am not going to venture and try to recall his
specific testimony, but again somehow he indicates that the man who was
spread across the car went around him somehow and got on the pavement
ahead of the officer. How he did that I don't know, but in any event he
said in his statement to the police, "I don't know whether it was the
driver or whether it was the man who ran across the street who fired the
weapon." That is what he said in his initial statement.
He comes back to us later and he says, "Well, what I
meant by that is that I didn't know their names. I didn't know Mr.Jamal's
name. I didn't know William Cook's name." That is what he meant. There was
no reason to assume that Mr. Scanlon knew Mr. Jamal or knew his brother or
anyone else. He could have been mistaken as to their names. That is what
he told us. He said he didn't know their names. He said that in his
initial statement. "I don't know who had the gun." That is what he said
the
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first time.
Then what did he say? He said, "Well, I read the
newspaper and the newspaper told me what their names were." So, it was Mr.
Jamal who had the gun and it was William Cook who was spread across the
car.
Do you remember when we questioned you on voir dire we
said whatever it is you read in the newspaper is not proof? The proof
comes from that witness stand alone. He is coming in and telling us that
he is sure it was Mr. Jamal, because he saw it in the newspaper.
Now, if I am misquoting what he said you have to remember
that it is your recollection that counts. You have to recall what he said.
In his initial statement he said "I don't know who had the gun. I don't
know who fired it." In fact, he never saw the gun flash the first time and
then when he did see the gun flash a little later on he didn't know
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who had the gun until he read it in the newspaper. Then
he knew.
If that were the way we decided these cases then you
wouldn't be needed. We would just have the press tell us who it was that
committed the crime, because they would go and talk to somebody who talked
to somebody who talked to somebody else and tell us that is what
happened.
You are not permitted to decide that case on innuendo and
rumor.
One of the other interesting aspects of the case, and I
am not sure what to make out of it, maybe it means nothing to you, but Mr.
Scanlon testified that he saw Officer Faulkner strike the man who he
believed to be William Cook on the head --- I am sorry. Around the
shoulder and back. He then indicated that he believed it was either a
blackjack --- not a blackjack, a night stick or the flashlight that we
have seen.
You say, well, the Officer made a
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mistake and took the flashlight away, because Officer
Chinn was told that somebody else must have dropped it and take it and see
if you can find out whose it is.
Why didn't Officer Repsch keep it? Why couldn't he take
it and find out? Nevertheless she took it and she had that flashlight that
seemingly was unimportant so she indicated, so that we can never test it
for fingerprints and never test it for blood and never test it for hair so
we could find out, in fact, whether Officer Faulkner struck somebody with
it and whether or not it did draw blood we don't know. Whose fault is
that? Is that Mr. Jamal's fault? Of course it isn't. Is it my fault?
Obviously not. It wasn't done. It wasn't done for a reason. You have to
decide what that reason is. We know it wasn't done.
The other interesting thing that Mr. Scanlon says is that
the shooter had a black hat on. The driver of the Volkswagen had no hat
on. We have been told that the
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driver of the Volkswagen is William Cook. We have got
photographs that show you that William Cook has a hat on. We know that
there was another hat found on the pavement near the pole. Whose hat is
it? That is a dark green hat. William Cook had a dark blue hat.
Remember what he said now? He said that the driver of the
car had no hat on. One or two conclusions. Mr. Jamal was the driver of the
Volkswagen, or there was somebody else.
Now you begin to see a picture about why it is important
that there was somebody else there. If the driver of the Volkswagen didn't
have the hat on, did Mr. Jamal have a hat on? William Cook still had his
hat on when he was photographed at the Police Administration Building. It
is shown in his photograph. A dark blue hat.
Mr. Chobert said when I showed him --- I think it was Mr.
Chobert --- when I showed him the hat he said it looks like
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it. He knows it was a dark hat. William Cook had on a
dark hat as well.
How many people do we have here at the scene? If nothing
else we are talking about physical evidence, because we can be mistaken in
terms of who looks like who and who looks like what. In terms of the
physical evidence that was discovered at the scene it is important that
you understand who was wearing the hat, where they were when they were
wearing the hat and whether there was just two people or three or more
people.
Mr. McGilton I think his testimony was kind of
refreshing. It probably reminded us, or at least suggested that we would
probably do some of the same things. What did he do? He said, "I heard
some shots. I counted those shots. One, two, three, four, five." What did
he say? He said, "I counted them because I thought there maybe another
shot left." He paid particular attention.
He said he counted the shots, five shots, he said that
because he didn't want to
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run over to that area because somebody else might have
another bullet. It seems reasonable to me. I think each and everyone of
you think it is a six shooter and there maybe another bullet, but if we
accept the testimony of the ballistician, Mr. Paul he said there were five
shots fired from the Charter special and there was one shot fired from the
38. Where was the other shot? If there were five shots fired and we know
that there is six and we know from the two weapons there was six shots
fired well maybe Mr. McGilton is wrong.
Dessie Hightower said that five shots were fired. Is it a
coincidence that they both say five shots?
Cynthia says there was one shot. Then she said there was
three, four or five. Nobody ever said anything about six shots. If there
is a mental hang-up about saying it was six we don't know, but we know at
least it has been suggested that if both of those weapons were fired at
that scene
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there should have been six shots fired. We have no
evidence of six shots fired. None. We know there was a bullet in the
doorway. How it got in the doorway we have never been told. We know there
was a bullet that went through the glass. We have never been told how that
happened. Particularly since it was not in the line of fire. It was off to
the side. When did those bullet holes happen? When were they fired and by
whom? We don't even know that.
Is that evidence to suggest there was maybe two
additional shots, or are we saying those were two of the shots that were
fired at the scene? If you believe there was some pumping actions when the
officer was on the ground would the shots go over there in the doorway? I
would think not.
I would just remind you of something else in the
testimony of Mr. Chobert. Chobert said in his original statement to the
police after the shooting he said, "Well, the first person was about six
feet
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tall." He said two hundred and twenty, two hundred and
twenty-five pounds. He says, "Well, I told him that, but I know it is Mr.
Jamal."
I don't mean to tell a bad joke, but you know how
sometimes people think people look alike. Mr. Jamal has Dreadlocks. Mr.
Jamal's hair style suggests an appearance that is very similar to anyone
else who would wear Dreadlocks. I don't think by any stretch of the
imagination you could believe he weighed two hundred and twenty or twenty
five pounds. That is what Mr. Chobert said, that the man who did the
shooting weighed two hundred and twenty, two hundred and twenty-five
pounds. He said that to the police the initial time.
What did he also say? He said that the shooter wore a
gray shirt. He said it was a gray shirt. We know from the evidence, if we
accept the evidence of the police as being true, that when Mr. Jamal was
taken to the hospital he didn't have a
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gray shirt on. So, who did he see?
You may say, well, he was just mistaken. He was mistaken
about the build. He was mistaken about the shirt. He was mistaken about
the hat. I mean how many things was he mistaken about? How do you make
that determination as to what he was mistaken about? What statement will
you use to say he was mistaken about the height, mistaken about the shirt
and mistaken about the hat, but that he is not mistaken about it being Mr.
Jamal? How can you do that? There is no corroboration of what he said.
Again, you are not permitted to guess at all. It doesn't make sense. His
testimony contradicts the physical evidence. The physical evidence is the
physical evidence. It does not change at all.
The physical evidence was there on December the 9th and
it remains the same.
The testimony of these witnesses has changed gradually
and frequently from December the 9th until they testified in
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this courtroom. Whose responsibility is that? I don't
know. I am not even suggesting that you have to assign responsibility for
the change in testimony. You just have to recognize that the testimony has
changed. It belies the physical evidence. There must be a reason for it
belying the physical evidence.
Let's very quickly go through these tests that I have
talked about. I assure you that I wasn't attempting to go on an ego trip
to show you that I knew an awful lot about the Trace Metal Detection or
the Neutron Activation Test, or the fingerprint tests. I worked in the
Police Labs a few years and I didn't do those other tests because at that
time we weren't doing them. I did fingerprint stuff and this Trace Metal
Detection Test has been around for a number of years. It is not an unusual
test. There are three pamphlets given out about the Trace Metal Detection
Test. The kit that is sold for four dollars and ninety-eight cents.
I don't know whether it was detective
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Thomas or Officer Land who said they didn't have a kit
with them. I mean this is the fourth largest city in the United States.
They say we didn't have one of those little tests kits to perform the
test. Why is that? Is it really that they didn't have it, or they didn't
want to use it, or was it just sloppy police work?
You are not here to decide whether or not to discipline
anyone for sloppy police work, you are here to decide the guilt or
innocence of Mr. Jamal and if that sloppy police work impacts negatively
upon Mr. Jamal then you have got to let the Police Department know that we
are not going to hang this man just because it is something you are trying
to suggest to us and you haven't proven your case.
Doctor Tomosa is the criminologist who testified and I
asked him about all those tests. He indicated with regard specifically to
the Trace Metal Detection Test he said that test is really not
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reliable. He went on to talk about the fact that it is
not reliable, but not saying they don't use it. He is not saying the FBI
don't use it and he is not saying that most of the Police Departments
across the country use it. He just said it isn't reliable. He just throws
that out there for you to accept, because he has got a doctor in front of
his name.
The publication that I read to him to test what he was
saying indicates that it is a reliable test and that you can wash your
hands and rub up against things thirty-six to forty-eight hours afterwards
and you can still use that test to determine if someone handled a
weapon.
The testimony is that Officer Faulkner was rushed to the
hospital and Mr. Jamal was rushed to the hospital. Granted I have no
criticism of them being taken to the hospital. At some point in time
within thirty-six to forty-eight hours Officer Faulkner certainly could
have had the Trace
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Metal Detection Test taken of him and Mr. Jamal who was
certainly in their custody could have had the test performed. Just so we
would know who had a gun in their hand. At this point we don't know
whether Mr. Jamal had a gun, whether Officer Faulkner had a gun or William
Cook, or one or two of the people who ran. We don't know. We could have
found out if they did what they were suppose to do. Then you wouldn't have
to make this decision that you are making. If, in fact, Jamal had a gun
why didn't they take the test? They got him. They could say "We have this
test to show that he had a gun." Well, they didn't do that test.
The Neutron Activation Test that is another test that is
conducted. Again, it is not a rare thing. The Philadelphia Police
Department and most major Police Departments across the country, the FBI,
they all use that test. This test would determine who fired the gun. It
would seem to me that even on December the 9th they had
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enough indication to know or to have some question as to
who fired the weapon. Did they take the test? No. Well, there was too much
confusion right away. Was there ever any attempt to take it? Absolutely
not. Who loses? Who loses when they don't take those tests? Mr. Jamal
loses. You don't lose and the Commonwealth doesn't lose, but Mr. Jamal
loses.
You are saying why should we do that for him? I am saying
you should do it for him and for everybody, because if we don't do it for
everybody then who is going to start picking and choosing?
There is physical evidence that has been presented in
this case and a great deal of testimony. Some of the physical evidence if
I can get away with saying there is a lack of physical evidence to
corroborate what it is that people say. I am not asking you to --- I am
not suggesting or asking you to consider that the Police Department should
have done flip-flops in this case. I am not
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asking you to assume that the police should have acted in
this case in any manner that was unprofessional. I am not asking that they
should have done anything favorable to Mr. Jamal. There are no favors
being asked for or solicited from them. Only that they do as much for Mr.
Jamal as they would do for anyone, whether they shot a police officer or
anyone else. They are saying, "Well, he must be the one. He has a bullet
wound."
There is some question of when he got that bullet wound.
Remember the witnesses saying they didn't see any blood? The only blood
that is seen was in the wagon when someone said they saw blood on his
forehead and at the hospital there was blood on his forehead. Was he shot
at the scene? I know by my questions and by my cross-examination of the
officers I suggested how could he be doing all this kind of stuff if he
had a bullet wound in his shoulder? What did they all say? "I didn't know
he had a bullet wound. I didn't know he was shot." Who knew
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he was shot? Nobody knew he was shot. Why? If he was shot
don't you think somebody would have known it? There is a life threatening
wound of his chest and nobody knew it. Nobody paid attention to it and no
one took note of it.
Officer Forbes tells us, among other things, when he
arrived at the scene with his brother officers he saw Officer Faulkner and
eventually saw Mr. Jamal and saw William Cook. I think Officer Forbes was
the one who indicates at least that he picked up the weapon and eventually
took it to ballistics.
From the witnesses who testified about what William Cook
was doing what do we know? Let's accept all of what they say about William
Cook right now as being true. I am not even going to debate that for a
moment. Please do this with me?
Cynthia White says she saw the officer get him out of the
car and walk on the pavement and turn him around and stand
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him there at the wall.
Mr. Chobert said he saw him walk out of the car on the
pavement and doing something. He is standing there.
Mr. Scanlon said they were out in the street and there
was a blow struck and he hit him a couple of times. His statement to the
police is that William Cook had blood on his hands.
There was some testimony I believe by Dessie Hightower
that he saw William Cook standing over the officer. Dessie Hightower said
that. And he had blood on his hands. From where? Well, maybe he brushed
his wound. If he brushed his wound that means that Cynthia White lied
about him being struck by an officer. It means Chobert lied about it. It
means well maybe Mr. Scanlon he was a truthful witness. Well, I mean when
did he do all that? He had blood on his hands. If you assume that is what
happened. Was there any test to determine whose blood it was? We don't
know. Was it
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Officer Faulkner's blood? Was it William Cook's blood?
Was it Mr. Jamal's blood?
You come upon a scene and a witness tells you that this
guy is standing against the wall and he didn't do anything. He has got
blood on him. He didn't do anything and nothing happened to him but he has
got blood on him.
Doctor Colletta indicated Mr. Jamal was near death when
he arrived at Jefferson Hospital. That the bullet wound had a downward
trajectory and he checked the vital signs to determine exactly what was
wrong with him. He knew he had the cut above the head and he knew that he
had a bullet wound of the chest.
He further indicates a few other injuries that occurred
to him which suggests that when Dessie Hightower and Cynthia White say
that he was beaten that they were lying. I am not trying to rehabilitate
either one of their testimonies. If you want to believe that they were
lying about him being beaten
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you are free to do that.
You know Cynthia White gave statements three or four
times before she said that he was beaten. Then she said it was not to her
advantage or to the advantage to the Police Department to say that Jamal
was beaten, but she eventually conceded that, yes he was beaten, or he was
struck. I think later she said, "I don't know. I saw them swinging. I saw
them kicking. I don't know if they kicked him."
Dessie Hightower said, "Yes, they were."
The officers testified well they kicked him and they
don't know whether it was in the shoulder or in the face. They ran his
head accidentally into a pole. They dropped him on the pavement. They put
him in the wagon and dropped him in the hospital.
Doctor Cudemo said, "I saw the officer's leg raised."
When you raise your leg your foot goes with it.
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She saw an officer's foot and leg raised and then she saw
Jamal's hand go up and then heard him moan.
Is that coincidental, or does it suggest that he was
kicked?
You maybe saying, "Well, if he was kicked how come
Colletta doesn't know?" I don't know. I am not a doctor. I am not a
doctor. I am not here attacking the effectiveness of Doctor Colletta. He
saved Jamal's life. Thank God for that. I am simply saying that weather or
not Mr. Jamal had been kicked in the stomach or side or butt or chest
wasn't really important, because he had a bullet wound of his chest. That
is where his attention was focused. That is what he looked at. He made a
cursory examination and he noted those injuries that he testified to.
What difference does it make whether Mr. Jamal was
beaten? You decide whether or not it makes any difference as to whether or
not he was beaten by the police.
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Officer Chinn testified that again aside from the
flashlight I don't know what to make of her testimony.
I will be closing pretty soon, so please bear with
me.
Officer Chinn said that she assisted I believe, Officer
Soboleski and another officer, I think McGurk. She assisted them in
handcuffing a prisoner and she only saw the back of him. That is what she
said. Then she was going to homicide, I think she said with a witness.
Somebody. She was on her way to homicide. She heard they had a suspect at
the hospital. At homicide she said that she saw William Cook.
She was later asked "Did you see Mr. Jamal?"
What did she say? She said, "No, he was already gone when
I got there. She made a mistake. She did arrest Mr. Jamal. If she made
that mistake why did she make the mistake? Were there other things going
on which caused her to make the mistake?
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Because she said when she got there there were two people
there at the scene. There were two people at the scene. One was going to
the hospital that she heard about and one was in homicide. She said as far
as Mr. Jamal was concerned he was gone.
Now, I think you can accept the fact that she made a
mistake, but are you, or should you accept the mistake that, in fact,
there were only two people there?
Is Officer Chinn the one that tells us, the one that
confirms for us that indeed there was someone else there that for one
reason or another we are not being told about it? I don't know.
I am not trying to paint any cloak and dagger stuff. I am
saying in terms of your consideration of what happened you got to consider
that. You got to consider and I can do this since I am a lawyer and it is
not anyone that close to me. Are you satisfied that William Cook did not
shoot Officer Faulkner? Are you satisfied that
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it was not one of those other individuals who ran away
that shot Officer Faulkner?
If you are not satisfied of those facts then you have to
find Mr. Jamal innocent or not guilty. You are not saying in making that
decision of not guilty that you condone violence, or that you condone
murder. What you are saying is that the case wasn't proven to you. That is
the wrong person who was brought in and that you are not going to require
brother testify against brother, or sister testify against sister. You are
not going to require anything more than finding him not guilty, because
that is your obligation and that is your duty. There is no reason for you
to feel shameful about that at all.
Oftentimes I think when jury members are asked to sit on
a jury and asked to decide guilt of innocence of a man or woman for some
reason somebody comes over and says, "Well, I guess I am here to see if I
can do something about crime in the streets
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and violence. So that if it looks like if there is a
likelihood that he may have committed the crime I am going to find him
guilty.
Resist that urge. Resist that urge. You do not stop
crimes of violence on the streets of Philadelphia or anywhere else in this
universe by finding innocent people guilty. You do not do that.
Oftentimes when I address a jury in my summation
oftentimes I feel after I sit-down that I wish I could have said something
else, because there was something more that I wanted to point out to the
jury. But, I find that jurors are smart enough to know, "Well, Mr. Jackson
forgot so-and-so, but I remember so-and-so saying this and the other." You
are permitted to do that. You are permitted to remember the testimony of
each and every witness who testified and everything they testified about.
It isn't necessary that I remind you of that, because I think you have
been attentive and you
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have heard the witnesses. If you remember and recall the
testimony and if I suggest a theory that is inconsistent with the
Commonwealth then you are free to explore that. You are free to consider
that in discussing it among yourselves. If there is anyone among you who
decides, "Well, I think he is guilty," and the other eleven say he is not
guilty, consider it and discuss it. Of course, the opposite is true, too.
If any one member of this Jury has some doubt then that ought to create
reasonable doubt for the entire Jury. When I say "doubt" I mean doubt as
to guilt and doubt as to innocence. Consider it and explore it.
Our system of criminal Justice says that the defense
addresses the Jury first and then the prosecution will then give its
summation to you when I finish here. I will not speak to you again. I
would ask you when the prosecution begins to give its summation listen and
ask the prosecution, or consider when the prosecution
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has given its summation what argument will be advanced by
Anthony Jackson in response to the argument being presented by Mr. McGill.
Is there some other reason, some other way the circumstances could have
happened other than the way Mr. McGill would suggest to you? Ask the
Commonwealth, silently of course, why didn't you take those tests? Why
didn't you take the Neutron Activation Test and why didn't you take the
Trace Element Test? Why didn't you find out who that man was that Cynthia
White was talking to? Why didn't you? Why didn't you explore the
possibility or probability that William Cook was the one who shot Officer
Faulkner, or someone else shot Officer Faulkner? Is it because Mr. Jamal
was a well renown journalist in the black community and is it because
having him somehow adds to it? I mean I don't know. I mean why him? There
is everything to suggest that Mr. Jamal's character is such that shooting
a weapon would be inconsistent and shooting a police officer would be
inconsistent
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with what his character witnesses have said. They know
him. They have told you they have known him over a number of years.
It was easy since he was shot to make that
assumption.
Tell me this, even if you accept for a moment what the
security officer Priscilla Durham said and what Officer Gary Bell said,
"Yes, I shot him, I hope he dies." what would the love of your brother
cause to do if you thought you were dying? If you thought you were dying
and your brother was all right would you say "Yes, I shot him, I am going
to die anyway"? Would you say that?
Ladies and gentlemen of the jury, I am going to close now
and I hope that I have been of some benefit to you not just in this
summation, but throughout the trial in attempting to seek the truth,
because you sit as a board of truth to determine what the truth was on
December the 9th at l3th and Locust. There have been a number of
heated
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debates between counsel and if you hate me, fine, but
don't transfer that hate to Mr. Jamal. I have attempted to do the best as
I could to assist you in seeking the truth as to what happened on December
the 9th at about 3:51 a.m. that morning. I just suggest to you, ladies and
gentlemen, if you have been attentive you will know that Mumia Abu-Jamal
did not shoot Officer Faulkner. You are not asked to assume the
responsibility of deciding who it was. You only have to decide whether or
not Mr. Jamal did it. I think it is clear and it ought to be very clear to
you that the Commonwealth has not proven him guilty beyond a reasonable
doubt and he did not commit that crime. I would ask you to find him not
guilty.
Thank you very much.
THE COURT: Let me see counsel at sidebar.
- - -
(The following is a sidebar discussion with both counsel
present.)
THE COURT: I noticed that you
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objected twice. I didn't want to interrupt Mr.
Jackson.
MR. McGILL: It is no good now. I was objecting to his making statements
about the Defendant's motivations without his testifying. It is clearly
improper.
- - -
(At this time the sidebar discussion was
concluded and
the following is in open court.)
THE COURT: We will take a short recess at this time.
- - -
(At this time there was a short recess after
which time
court was reconvened.)
- - -
(JURY PRESENT)
- - -
THE COURT: Mr. McGill?
Isn't it ironic that Daniel Faulkner after stopping
someone in the normal course of his duties was killed by a bullet that he
could not put in his own gun, because it was too highly powered?
Isn't it ironic that the shot he was able to get off,
because it wasn't a Plus P, did not kill the individual? That is fortunate
that that individual was not
Page 150.
killed, but just isn't it ironic?
It is not the one bullet, ladies and gentlemen, that took
his life, but several shots of Plus P highly powered projectiles, whether
it be the back or the brain.
I would point out, ladies and gentlemen, to please
consider when we go through all of the evidence that fact, because that is
reality and that is what you are deciding on.
Ladies and gentlemen, in thinking of terms of intent to
kill can there be any question of what was the intent of the Defendant
when it was done? Because, ladies and gentlemen, as you heard this weapon
being loaded as it was and the size that it was with those highly powered
projectiles took eight to ten pounds of pressure, eight to ten pounds each
time and it is fired five times. Of those times a number of those were
done right when the individual is looking right up at that barrel. That is
reality, because nobody has
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contested that. That man down there without an attorney
or anybody to assist him at that time, that man who was looking at a
barrel that was going to blow his brains out was a man who was a life that
was lost.
The evidence is not only that he was a police officer
that you heard, but in terms of reference to one's ability or one's
background what do we find out but that very night the last arrest he made
before the one that killed him was a rape suspect which he arrested for a
victim that had been raped and was at Jefferson Hospital being cared for,
the very hospital where he died. We found out that man, that officer who
during the regular course of his duties stopped William Cook on that road
for a routine stop, we know what the last words were. We all heard what
his last words were in this world. You all heard it in reference to that
routine car stop. He said, "I have a car stopped. I have a car stopped at
l2th and - -" then he says, "l3th and Locust. On
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second thought, send me a wagon."
He asked for assistance in a very bad area of the city at
a very, very dangerous time at night. Very dangerous as we found out.
This same man as we found out also from a witness that
was called by the defense whose testimony you may well completely
disregard, and I am talking about Veronica Jones, it will be up to you, it
was so confusing that you don't know what she was saying or how she could
be where she was. She testified that she knew Daniel Faulkner and he had
saved her from a robbery one time and at another time saved her from a
beating.
This is the other life that we are talking about in this
case.
Let us keep in mind that there may be justice for the
Defendant and there may be justice for the victim, because he has all of
his rights as will people that live after him who feel and see and think
and remember.
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What is there to remember? A hat without a badge. A hat
that was found on the scene. This. The remnants of an individual. An
individual that had done those things for so many people.
That is why this is such an outrage and what a way to go.
What a way to go.
Ladies and gentlemen, reality is what we are talking
about. We are talking about the intent to kill. Deliberate. Eight to ten
pounds each time.
Ladies and gentlemen, let us look at the evidence. Common
sense. Common sense. What we are talking about in terms of the number of
individuals is not just one witness or two witnesses. Not just some
physical evidence here and there, but if you take a look at the
conglomerate, the combination of all of the facts you see what the results
reasonably could be.
Ladies and gentlemen, you have four witnesses that
testified from different times.
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As you recall all of the testimony that you heard you
will see that they had a consistency throughout.
Let's talk for example about identification.
Ladies and gentlemen, when you speak of identification,
when you speak of an individual looking and being able to say that that
person did it, there are a lot of things that may go into it, but you have
to remember one thing, we are not, as I mentioned before, --- you are not
considering somebody that saw somebody do something for a split second and
then ran away for about two or three blocks. That is not what you have.
You do not have the test of perception of several witnesses who for a
moment saw something and then lost sight never to see them again except on
the day in court. That is what you don't have.
What you do have, ladies and gentlemen, is an individual
who was observed by the witnesses and who never left the scene.
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Who was arrested on the scene. Who was on the scene and
taken to a wagon at that very time and who was identified while in the
wagon by the people who did not leave the scene either.
When you talk about identification evidence, when you
talk about that type of evidence, one would wonder whether you would even
need an identification, since you never lost sight of the man who
shot.
It is important to recall, and I ask you to please
consider this, remember on this chart and remember these actions, the
Defendant as he ran across and as he fired Daniel Faulkner fell down. He
never left. Having been shot himself after his firing he then moved over
and slumped down. At that time when the police came there was a struggle.
There was no question about that. And he was injured. He was taken back
and his head hit a pole and he was taken to the wagon. Al1 during that
time, ladies and
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gentlemen, he does not leave the scene. None of those
people closest to the scene see anybody going anywhere except firing and
staying there. I mean how much common sense do we need! You wouldn't have
to see somebody's face let alone know a person runs, shoots and then
slumps down, or falls down to the curb and is arrested and taken to a
wagon. He hasn't left your sight. What more compelling identification
testimony would you need than that? That is where he was and that is what
you heard.
Mike Scanlon you also heard, which I will get to, but
recall Cynthia White's testimony, Robert Chobert's testimony and Albert
McGilton's testimony. Those three people clearly saw that man and he never
left the scene. All of those witnesses have some strange motive.
Let us take a look also at Mr. Scanlon. I would suggest
to you that it is your recollection, but let me recall for you.
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As I questioned Mike Scanlon I believe it was Mr. Jackson
who told all of you that in his first statement he didn't know who shot
him, but all of a sudden in the second statement after reading the
newspapers he all of a sudden knew.
Ladies and gentlemen, excuse my back. I will have to run
back and forth with these various exhibits.
This statement, which is marked C57 which is the first
statement, you will recall that on redirect examination after
cross-examination I walked right to Mr. Scanlon and asked permission to
come up and walk over here and I said, "You gave a statement on December
the 9th about twenty, twenty-five minutes after?" He said, "Yes."
Then I went onto read that statement and you will recall
as I said the guy running across the street pulled out a pistol and
started shooting at the officer. He had the gun pointed at the officer. He
fired while he was running at the officer once
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and the officer fell down. Then he stood over the officer
and fired three or four more shots point blank at the officer on the
ground.
His first statement twenty-five minutes after.
You are the judges of the facts. Ladies and gentlemen, I
would ask you to recall his first statement and that there was no change
all of a sudden later on. That was twenty-five minutes later.
Scanlon left right away. He couldn't identify anyone, but
knows that the one running across was the one who fired. You heard his
testimony as to that.
Ladies and gentlemen, I ask you to consider that and
consider it very, very seriously, because that is the type of evidence
that you may well find compelling. The evidence that the man never left
the scene.
How many wrong identifications are you going to make when
you see him arrested
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and see him brought around and he is in the wagon and
then you see him there and you say that is him, that is him?
Ladies and gentlemen, let's take a look at some of the
physical evidence. Consider how that would corroborate the testimony.
You will recall the various pieces of clothing, for
example, those pieces of clothing that were part of the evidence, and I
won't bring all of them out, but I wish only to show you this. Excuse me
again.
I am talking about the jacket. You will recall the
medical examiner's testimony clearly has the bullet between the eyes. You
saw that in the chart. I point out to all of you, too, that you will
recall the projectile went through the right side and you could see here
it went through and because of the looseness of the jacket did not have
contact with the body.
There you have two direct pieces
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of evidence. On this jacket you have evidence of three of
the shots that were fired. The man just did not make contact with all the
shots. Although he certainly tried. You saw the weapon and you noted that
all of those shells were used. There were four loaded, five, or whatever,
and all of them anyway were spent. There just wasn't any more. Was there
any doubt what he was trying to do? Was there any doubt?
Ladies and gentlemen, in reference to the Chem. Lab.
testimony itself not only do you have those pieces of evidence which deal
with projectiles and the blood, but you do have, for example, when that
hat was brought up, the hat that Cynthia White and the others were
speaking about, there were two, one was on Mr. Cook and the other one was
on the ground, one as you saw was right by the pole as it was located in
this photograph. This was right by the pole which is not quite in there.
You can see it here. The pole is out of view there. There
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was some blood on that particular hat. The Chem. Lab.
reported there was blood on the hat. You recall that the Defendant was
bleeding and had definitely made contact with that pole.
This should be again pointed out to you that Miss White
no matter what you thought of her, or the other witnesses, whether they
were speaking about dark green or whatever, this again is physical
evidence to back-up what had occurred.
The Defendant hit his head here and as a result of that
you have that blood.
Ladies and gentlemen, there were many things that were
said in reference to various parts of the evidence, such as a beating. You
are here to consider the shooting of Daniel Faulkner and really nothing
beyond that. Even if you were to view the evidence in terms of any kind of
beating I would suggest to you to think of Doctor Colletta, and his
testimony was clear. Those records were C63, the medical records that I
had.
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They were authenticated as you recall by Mrs. Williams.
These records show the specific injuries and the only injuries that were
on the Defendant and those injuries were completely consistent with what
Doctor Colletta said, completely consistent with the testimony of the
police. The struggle, the hitting of the head, the kicking in the face, on
the side and then the hitting of the pole with the head. That is
consistent with these very records.
Again, pointing out documentary evidence that would
follow.
Ladies and gentlemen, there are a number of pieces of
evidence that you will recall on your own. I am sure that some of these I
may not even recall myself, but pointing out the ballistics testimony, you
heard that testimony which was uncontradicted, which was the fact that the
bullet was fired from Daniel Faulkner's weapon that wounded this
Defendant. That evidence was clear.
You heard the testimony of the
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medical examiner that the shot, ladies and gentlemen, in
the back that he had, that shot in the back was not totally debilitating
at all. As a matter of fact, he said that in the area of the arms, the
left arm may have been affected in some way, but you could move well with
your right arm. You could do your normal action with your right arm, at
least for awhile.
Noticing again in that particular case and the facts all
of you heard there was at least one, two, maybe even three seconds before
he turned around. Whether it was a stagger or a turn, Scanlon talked about
it, he talked about two or three seconds and Cynthia White talked about a
staggering at that point in time, certainly as he would turn around and
point --- it should be known, ladies and gentlemen, that as you actually
would know now that the trajectory of a weapon, certainly Doctor Colletta
as he said was not at all an expert in that area, but he did say this, he
said
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there are drops as a bullet would go. When you are
dealing with the barrel of a weapon -- I won't use the weapon at this
time. This would be the barrel of the weapon. It would depend, ladies and
gentlemen, as to exactly where the weapon is with respect to the position
of the body. I am holding my left-hand as the body and what the trajectory
would be. As a matter of fact, both of you are standing up next to each
other. You are pointing a weapon like my finger at this point and you move
that finger somewhat, either up or down, just a little bit, even though
you are standing straight up right at him that trajectory would change
depending on where the barrel is pointed. If you turn the body down a
little bit then you get a different angle if you are like that. If you
turn the body down further you get a different angle. And further the same
thing.
So, when you are dealing with both sides and two
individuals you are dealing with a target body and you are dealing
with
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a weapon the slightest change of either, the slightest
change of either of those two things would change the trajectory, because
there is no absolute thing. It is not nailed to the body so it won't
change. The slightest change of either, the slightest difference in angle
would get a different trajectory.
Ladies and gentlemen, I will ask you not to be confused
about that particular piece of evidence.
There was some mention about the testimony of some of the
defense witnesses. I would suggest to you when you consider, and because
it is late I am trying to get directly to the evidence, and it is up to
you to decide, Mr. Hightower has incredible eyesight when you think about
what he is suppose to have observed. Mr. Hightower at one point said it
was a blind side hit on the police officer as he was pulling somebody out
of the car. He changed that. When he was asked again he said, "Well, I
surmised that."
When it was pointed out to him,
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"If you are over here and seven car lengths up you can't
very well see through a wall, could you? You must not have seen that."
"I surmise it, because of the way the officer laid
down."
Okay. Right after the shots he goes to the corner and
then going to the corner he then began to glance out and take two glances,
because he was concerned that he might be hit. As he is taking two fast
glances he is able to see, ladies and gentlemen, somebody not only who is
one or two car lengths from him at 3:51 a.m., which it is dark, but he is
able to see somebody who is down here in one or two glances.
He does remember one thing. Some six days later he says
he remembers how the officers were beating on the Defendant with the
stick. Doctor Colletta said that just could not be, that there would be
--- you would expect more damage.
He is sure of that and he is also
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sure that the holster has a gun in it, or something like
that. He says he is really sure of that. Six or seven days later.
I won't put on the officer's holster. He remembers
that.
Ladies and gentlemen, he then says there are no shots.
Does he suggest, or is counsel suggesting that the shot had occurred
sometime on the way to the hospital? If the gun was in the holster and he
is driving to the hospital what did they do, take the gun when they got to
the hospital and then shoot him at the hospital? Is that what they are
suggesting?
Ladies and gentlemen, I ask you to recall and use your
common sense, because that is what you are dealing with. You are dealing
with human observations and reasonable inferences. You may well find that
Mr. Hightower surmises quite a bit, particularly six days after the fact
when he realizes that he may know the individual in some way or the other,
perhaps in a way that he thinks
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is very, very important.
Ladies and gentlemen, I ask you to consider all of that
portion.
Now, a good portion of some of this evidence you already
heard and I have kind of surmised it to a great extent. I ask you to
consider in terms of intent to kill first, which is what we see without
question in a first degree murder verdict. All you are concerned about is
guilt at this time. You are not concerned about any kind of penalty, just
guilt.
The reason why we suggest to you that first degree murder
is compelling is because of the nature of the weapon. The bullets that are
in that particular weapon were bullets to destroy. Remember Mr. Cone?
"Devastating" was the word. Highly powered. Paul used the word.
"Devastating," and indeed they were. The medical examiner, Doctor Hoyer.
The same damage which is consistent with the Plus P bullet. You may not
often see that type of damage done to the head
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because of the fragments, the different type of
fractures. That is consistent with that type of high velocity.
When you look down or when you are pointing that
particular weapon down and you are using eight to ten pounds of pressure
each time what is your intent? You are deliberately acting to kill. Four
or five times, or whatever. That is what happened, The intent to kill.
Ladies and gentlemen, a reasonable inference based upon
the circumstances.