Page 2.
The motion that was originally filed and received by this
Court back on July 9, 1982 has been supplemented by a memorandum that I
believe Your Honor may have received a copy of. I delivered one also to
Mr. McGill's office but, apparently Mr. McGill did not receive it. I have
handed him one just today.
The memorandum merely supplements the allegations that
were made in the motions for post-trial motions. I have summarized them to
some extent. Although there were 34 originally listed, they have not been
enumerated as such and they would be combined in the argument that I wish
to make to the Court today.
Initially, I would point out to Your Honor that some time
after Mr. Jamal was arrested but before the preliminary hearing, in fact,
on January 5, 1982, we made a request to Judge Ribner at that time
requesting a lineup. That lineup was founded upon the
Page 3.
representations that were made by the district attorney
essentially alleging that the eyewitnesses, the alleged eyewitnesses,
could in fact and did, in fact, identify Mr. Jamal as being the very same
person that they saw shoot the police officer and when they subsequently
saw him in the wagon, he was that same person.
At that time there were representations made by counsel
that they never lost sight of him. I think the testimony was that, and I
believe Your Honor is certainly familiar with the testimony of those
eyewitnesses that testified, they did in fact lose sight of him. At
various times they saw various aspects of someone who committed some
act.
During the time of the alleged shooting, Cynthia White,
as an example, said that she saw someone running across the street. First
the person had a hat on and then later, she said that the person had
dreadlocks. And at some point in time, she said that she lost sight of the
man who was supposed to have committed the shooting. She said that she was
some distance away and later moved forward.
Page 4.
But, in any event, later on the police officers took her
to the back of the wagon, along with some of the witnesses and they
identified Mr. Jamal.
We, of course, asked that a lineup be conducted to
support and corroborate the reliability of that eyewitness testimony. When
balanced against the inconvenience and burden to the Commonwealth, under
those circumstances, I don't think it was at all an unreasonable
request.
Throughout the motion to suppress, throughout the
representations made by counsel as well, we have heard that, of course.
Each and every one of the eyewitnesses has given contradictory information
with regard to the description of the person who allegedly committed the
shooting. Based on that, we feel that the Court was in error in not
granting our request for a lineup, and I would ask Your Honor to order a
new trial based on that and that alone.
I would ask Your Honor also, and it is pointed out in the
memorandum, in United States
Page 5.
versus Wade, where, in fact, Justice Brennan noted that,
"the vagaries of eyewitnesses identification are well known; the annals of
criminal law are rife with instances of mistaken identification."
The reason for that, Your Honor, Justice Brennan
recognized that eyewitnesses are whatever they are, they are eyewitnesses.
They can certainly be mistaken. If, in fact, the Commonwealth has faith
and confidence that their witnesses are indeed able to identify whoever it
was that committed the act, it seems to me that it is little burden upon
the Commonwealth to bring in those witnesses, and to select the defendant
out of a lineup.
That is particularly true, I believe, in this case where
we have a man who has been charged and convicted and now, of course,
sentenced to death. That certainly would not have been an unreasonable
burden on the Commonwealth and certainly no inconvenience to the
Commonwealth to be offered as an argument against that. I would ask, for
that reason, that the Court order a new trial.
Page 6.
THE COURT: You cited no cases.
MR. JACKSON: U.S. v. Wade, Your Honor.
MR. JACKSON: With regard to the eyewitnesses?
MR. JACKSON: In U.S. v. Wade, the facts and circumstances
are completely different. There is no question about that. I am citing it
simply for the proposition that eyewitness testimony is oftentimes
mistaken.
THE COURT: That is common knowledge. Everybody knows
that.
MR. JACKSON: I understand that.
THE COURT: That is for the jury to decide. That is a
factual issue.
MR. JACKSON: It may be a factual issue to determine
--
MR. JACKSON: No, there is absolutely no constitutional
right to a lineup, I would agree. There is no constitutional right to
a
Page 7.
lineup.
THE COURT: In that case, there is no precedent for what
you are arguing.
MR. JACKSON: I disagree with Your Honor, in that I am not
suggesting that there is indeed a constitutional right to a lineup. There
is indeed a constitutional right to a fair trial. I am saying that the
refusal to grant that lineup caused Mr. Jamal to have an unfair trial.
MR. JACKSON: That he is entitled to a fair trial?
THE COURT: I am sure he got a fair trial. I mean the
point that you are talking about, about the lineup?
MR. JACKSON: The Courts could point out circumstances
where a lineup would be ordered. The Courts leave it within the discretion
of the Trial Judge as to whether or not a lineup ought to be ordered and
it points out several factors that the Court should consider, as to
Page 8.
whether or not a lineup should be ordered.
MR. JACKSON: Yes, Judge Ribner did indeed.
MR. JACKSON: Yes, he did.
THE COURT: All right. Why is he wrong?
MR. JACKSON: Because it was an arbitrary and capricious
decision based on, primarily, the representations made by counsel.
THE COURT: What factors did he consider? You said that he
considered them.
MR. JACKSON: Yes, sir.
MR. JACKSON: The offer that was made to Judge Ribner was
in fact that the eyewitnesses never lost sight of the person who allegedly
shot the police officer.
What I am proposing and suggesting to Your Honor is that
there were several phases to this incident. One is that the witnesses
claim that they saw a man run across the street, and
Page 9.
there was a break between that time and the time that
they allegedly saw a man shoot the police officer. After the shooting of
the police officer --
MR. JACKSON: I don't know, Your Honor.
MR. JACKSON: Not hours. Certain the entire incident took
no more than two minutes, Your Honor.
MR. JACKSON: The whole incident.
THE COURT: Therefore, he considered that factor. Go
ahead.
MR. JACKSON: Well, he didn't have the benefit, Your
Honor, of the entire testimony, and that is the point.
THE COURT: Nobody, no Judge ever has the benefit of the
entire testimony until the trial comes.
MR. JACKSON: Absolutely, Your Honor. But what the Judge
did was base his ruling on the representation of counsel that, in
fact,
Page 10.
they never lost sight of the man.
THE COURT: True, if he had been arrested ten hours later,
what you are saying would make sense.
MR. JACKSON: I am saying, even in this instance, in that
Mr. McGill represented that the witnesses never lost sight of him, and
that is not a fact. If that fact was brought to the attention of the
Judge, his ruling may have been otherwise, Your Honor.
MR. JACKSON: That may be sufficient, Your Honor. That may
be a ridiculous extreme that you are suggesting --
THE COURT: I am sticking specifically, strictly to the
facts in this case.
MR. JACKSON: I understand that. Your Honor, if you
consider the fact that we had allegations or representations made that
there were at least two people there, Mr. Jamal and Mr. Cook, who had
dreadlocks. And we had other testimony that there were --
Page 11.
THE COURT: Mr. Cook, you are talking about his
brother?
MR. JACKSON: Yes, sir.
THE COURT: That is in the evidence.
MR. JACKSON: I understand that, but it is also in the
evidence that there were other people who were there. There is a question
as to what each individual did, whether they were talking about Mr. Jamal
or Mr. Cook. And there was other evidence that there was at least one or
several other people there.
We have the testimony of Veronica Jones who originally
gave a statement to the police indicating that there were some other
people, there. We have a statement from Debbie Kordansky who indicated
that after the shooting, she saw some other people running. There was
another witness who indicated that he saw somebody else running. We had
Dessie Hightower who indicated that he saw someone else running from the
scene.
Page 12.
facts.
MR. JACKSON: Your Honor, no question. The jury had most
of those facts.
The jury did not have the benefit of Debbie Rordansky,
and I will get to that issue with regard to her testimony a little later.
The jury, of, course, is the judge of the facts. I am saying that, as a
matter of law, a lineup should have been ordered in the first place.
THE COURT: Why? Show me the reason why. If I gave you an
example, where someone is picked up ten hours later or even an hour later
--
MR. JACKSON: Because of the opportunity for mistake, Your
Honor.
MR. JACKSON: Yes, absolutely, if you consider that indeed
there were not just two people there, but several people.
THE COURT: If he had not been shot and wounded, and had
fled the scene, what you are saying would make sense.
MR. JACKSON: No, Your Honor. I think
Page 13.
it is that very point that makes all of this argument
sense.
Your Honor, he was shot. He was at the scene. No one saw
him shot and remain there at the scene. That is all the more reason that
makes it relevant that a lineup should have been requested. If in fact he
was there, if in fact he was shot --
THE COURT: The fact that you are arguing is that they
would have to have a lineup in every case.
MR. JACKSON: Your Honor, personally, I feel that it
wouldn't be a burden, but I am only arguing this case right now. I don't
think that is a burden to the Commonwealth.
THE COURT: I am not saying whether it is a burden or not.
I am asking you whether he is entitled under the Constitution or under any
state law or decision by the Supreme Court that would guarantee him a
lineup and, in fact, guarantee every defendant a lineup in every case?
MR. JACKSON: Obviously, there is not, Your Honor. There
is no guarantee to a lineup.
Page 14.
There is only a guarantee to a fair trial.
THE COURT: When Judge Ribner made his decision, he based
it solely on what information he had in front of him at that time.
MR. JACKSON: That's right. If that information was
incorrect, then his ruling was incorrect. I am saying that based on that
representation, and I made similar argument to Judge Ribner at that time,
that he was mistaken and that the Commonwealth made inaccurate
representations to the Court to bring about the ruling that the Court
made.
THE COURT: Do you want to answer these individually or do
you want to wait until he is finished?
MR. MC GILL: Whatever Your Honor would wish.
THE COURT: Maybe you could do it each time he brings up a
point.
MR. MC GILL: Is that the way Your Honor wishes?
THE COURT: Yes.
MR. MC GILL: That's fine.
THE COURT: Would you answer his point.
Page 15.
In considering, of course, Your Honor, sitting as a court
en banc at this point, as a post-trial Motions Judge, will have to make a
ruling on the appropriateness of that ruling. Your Honor, the primary
consideration that was urged to Judge Ribner was, in fact, accurate. The
underlying basis, which stated, in considering the facts, that is, in
consideration of the factors, the cases such as Commonwealth v. Sexton, a
Superior Court case, as well as the progeny of Sexton, certainly gave an
outline of the type of situation where lineups are really required.
In that particular case, we had a situation where it was
a robbery. An individual came into a store. No one in the store ever saw
that individual. It was a matter of a very short time before the
individual took the money. And
Page 16.
before this individual fled, a person in the store saw
that defendant, Mr. Sexton, for a very short period of time, as a matter
of fact, a number of seconds. That man then fled, ran down the block and
left.
Also, the other cases that follow Sexton would indicate
that in such a situation, a lineup would indeed be appropriate and it may
well be in the police's discretion not to grant a lineup under those
circumstances.
In the case of Mr. Jamal, I would state to Your Honor
that this is an entirely different matter. The individuals involved, the
identification witnesses, one being Cynthia White, which was the primary
concern of Mr. Jackson, and also Mr. Robert Shobert (sic), as well as Mr.
McGillton (sic), the situation or the facts surrounding their
identification was entirely different. Whereas Cynthia White, while at the
corner, saw the defendant running across the street, she then watched this
entire incident at this point. Your Honor perhaps remembers the testimony
well.
As Mr. Jamal was running across the
Page 17.
street, running and then shooting the officer in the back
as he turned around and fell down. Then he went over and continued his
shooting, after having been shot himself in between the first shot and his
final shots. Ms. White then looked and kept her view right on that
particular factual occurrence. At that point, the defendant, having been
shot, moved over to the side and eventually fell down onto the sidewalk
and remained there.
Almost immediately thereafter, the police officers
arrived. Ms. White did not leave. Mr. Jamal did not leave. As a matter of
fact, Ms. White then moved toward the incident, walking toward the
incident from the corner to about two and a half car lengths east. Ms.
White moved toward there because she wanted to let the police know that
she saw this. Mr. Jamal, having been wounded and weakened, did not move at
all.
When the police arrived, the first battery of police ran
around him and stationed behind him. One stopped his brother at the
corner, at the wall, and the other kept a
Page 18.
loaded gun on Mr. Jamal, after having kicked the gun that
was near him out of the way.
The next portion or segment of this was when the police
officers arrived and arrested Mr. Jamal. During this tine, Ms. White is
moving toward them and actually being told to stay back because of this,
because they were trying to secure the scene of this incident.
Mr. Jamal is then carried from where he was to a wagon
which was on Locust Street, facing east, and he was immediately taken to
the hospital. Ms. White has this in view as he is being taken from where
he was seated or at the curb to the wagon. During that period of time, she
moved up close to the wagon and observed the defendant. So during that
period of time, if there was a moment where she lost that view, it truly
would have been a matter of seconds.
This, Your Honor, was a far, far cry from the cases which
support the position of Mr. Jackson, that a lineup would be appropriate.
And since the standard is that it would have to be an abuse of discretion
for the ruling Court's
Page 19.
decision, there was certainly none here, based on the
factual scenario that I have just presented to this Court.
One does not need a lineup when the person is staying
there. It is reminiscent of the many cases where you have the on-the-scene
identification, where, for example, an individual having shot or robbed
someone is observed for the first time by somebody and then they stay
there. The defendant flees. He is caught by the police some four or five
minutes afterwards. The police then pick him up, take him back to the
scene and show him to the person who is right there and he says, "Yes,
that's the person." The reason why that is so reliable and the reason why
there is no identification needed then, is because it was so prompt.
The key in reliability, the key in the basis for the
identification was the promptness of the on-the-scene identification, and
there are a legion of cases which support that on-the-scene type of
identification. So, indeed, it is a far cry from even that on-the-scene
identification case where a lineup is
Page 20.
certainly not needed than this case that we have before
us, because he didn't flee at all. He was always there to be
identified.
So I would say, Your Honor, rather than an abuse of
discretion, which would be the standard, it was a most appropriate ruling
under all the case law.
MR. JACKSON: Your Honor, briefly, again I cite you to the
Sexton case. That is in the brief. I would just point out to the Court
that Mr. McGill makes a bootstrap argument, saying that he never left the
scene and that is why it was appropriate. That presumes and assumes that,
in fact, he was the one who committed the act.
THE COURT: That is, in fact, a question for the jury to
decide.
MR. JACKSON: Very well, Your Honor. With regard as to
when and what standard the Court is to use when a lineup is appropriate,
again, I accept and acknowledge the fact that there is no requirement that
a lineup be given. But there are certain factors that the Court must look
to, that is, in deciding whether or
Page 21.
not to grant a defendant's request for a lineup,
identification must be a substantial and material issue. I don't think
there is any question that identification is a substantial and material
issue in this case.
The second reason would be that there must be a
reasonable likelihood that a lineup would be probative, of some value. I
think it is probative of the ability of the eyewitnesses to, in fact, make
that identification.
The third reason would be in the defendant's motion, that
it should be as soon after the arrest or arraignment as is practical, and
I don't think there is any question that it was not timely.
THE COURT: What about what he said, where somebody
commits a robbery and flees. Five or ten minutes later he is apprehended
and is brought back to the scene and the person says, "Yes, that's him."
Is a lineup needed in that case?
MR. JACKSON: Under most circumstances, the Court has
ruled no, it is not necessary. But it goes to how much time did the
Page 22.
person have to observe the person in the first place. We
can't ignore that, Your Honor.
THE COURT: Let's say, for a few minutes.
MR. JACKSON: The question is, was there, in fact,
sufficient time for the person to have made that observation. That is the
very issue.
THE COURT: You have argued individual things, but you
have to encompass the entire case.
MR. JACKSON: Certainly, Your Honor, there is no question.
Generally, an on-the-scene identification is one of the most reliable
identifications that can be made, depending upon the facts, of course, in
each and every case. I am suggesting that, in this case, the eyewitness
--
THE COURT: The young lady met the police officers and
said, "I saw him shoot that cop." Isn't that an on-the-scene
identification?
MR. JACKSON: That is an on-the-scene identification. I
differ with you as to the facts as to how it was made though, Your
Honor.
Page 23.
That is my very point.
THE COURT: That went to the jury. You brought out the
factors as to how it was made, how much time she had to observe and
everything else.
MR. JACKSON: I concede that there are issues which lie
within the jury's province.
THE COURT: I am talking strictly law now. This witness
said, "I saw that man run across the street and shoot that cop. He is the
guy right there." It is an on-the-scene identification, isn't it?
MR. JACKSON: In the context that Your Honor places it,
yes. But that isn't the way it happened in this trial.
THE COURT: Okay, go on to your next point.
MR. JACKSON: Your Honor, obviously, the next issue goes
to whether in fact Your Honor should have denied the motion to suppress
those identifications. The factual argument would be pretty much the same
reasons, the reasons offered as to the lineup would be the
Page 24.
reasons for the argument in the motion to suppress.
I remember and recall specifically that Your Honor
suggested that it was an issue of fact as to whether or not their
eyewitness testimony was reliable or not. I won't burden the Court with
that argument again, but I am suggesting that by virtue of the Court not
granting the lineup to rule out --
MR. JACKSON: Yes, when we went to the motion to suppress
before you, Your Honor.
MR. JACKSON: Yes, we did -- no, no, no; I am not saying
that we asked for a lineup at that time. We had a motion to suppress
before you.
I am saying that the same reasons that we have argued for
the lineup were many of the same reasons we have argued that Your Honor
should have granted our motion to suppress.
Page 25.
MR. JACKSON: Essentially, that the eyewitness testimony
was unreliable. Your Honor, of course, indicated that that is an issue of
fact and not of law.
At that time, I suggested again that if, in fact, the
Court had promptly considered the materiality of the eyewitness testimony
and the need for a lineup --
THE COURT: But that had already been decided by Judge
Ribner.
MR. JACKSON: The lineup, yes.
THE COURT: Right, that is what I am talking about. I
can't reverse him.
MR. JACKSON: But you can suppress an identification.
THE COURT: I can't overrule him at that stage. I have to
wait until the end of the trial.
MR. JACKSON: Judge Ribner never ruled on the
identification. He just ruled on the lineup request. There was a separate
request made by the defense that a lineup be granted. He denied that
motion, fine.
Page 26.
suppress, among other issues that we had argued before
Your Honor, and this was after a motion to suppress hearing, was, in fact,
the in-court identification.
We argued that the only identification that Cynthia
White, or any of the other alleged eyewitnesses made that was of any value
was the one that was made in this courtroom during the motion to suppress,
and we suggested that that was not a proper identification procedure.
THE COURT: No, that is not true. The identification they
made was at the scene.
MR. JACKSON: All of the witnesses didn't make an
identification at that time.
THE COURT: She made one.
MR. JACKSON: She was one of the witnesses that allegedly
made an identification at the scene. Again, Your Honor feels that it is a
factual question. I felt that it was a legal question.
Your Honor made your ruling, and I know I have a copy of
Your Honor's opinion. That was dated the 4th of --
Page 27.
MR. JACKSON: Yes, your findings of fact and conclusions
of law. I have a copy of it and I am well aware of Your Honor's feelings
with regard to it. I simply point out to the Court that I disagree.
The next issue, Your Honor, would be the Court's denial
of the defendant's request for the respective names, addresses, and
whereabouts of the witnesses. I intimated earlier that the issue with
regard to Debbie Kordansky would be presented to you.
As you know, Your Honor, in Courtroom 613, Judge Ribner
is the Assignment Judge for homicide cases. Judge Ribner has this policy
where he will request, during discovery, that the district attorney
present the names and the statements of the witnesses. However, he deletes
or cuts out the addresses. That is his policy and most times, I would
imagine, it does not work to the detriment of the defendant.
We have it in the notes of testimony, during this trial,
that one witness in
Page 28.
particular, and perhaps Officer Wachell (sic) as well,
but one witness in particular, Debbie Kordansky, we had her statement
during the same time that all the other statements were given to us.
However, we were never provided with her address.
During the trial we asked Mr. McGill to produce that
witness, since we certainly had no means of doing that ourselves. He
indicated that they had lost contact with the witness. Eventually, we were
able to get Detective Morton and, I believe, another detective who were
able to get a phone number, and back in Your Honor's Chambers, I called
Debbie Kordansky and she said a number of things. Among other things, she
said, "I am not coming into court, and I am not going to give you my
address."
Her statement was consistent with the argument that we
made before this Court that indeed there were other persons on the scene
and other persons who were seen running away. Her statement says that.
However, because we, were never given the address of
Page 29.
that witness, we were denied the opportunity to compel
her appearance in court, not because of anything that Mr. Jamal did or his
counsel did but because the Commonwealth had access to that witness and
knew her whereabouts certainly at the time that the statement was
taken.
They had access to that information. It wasn't given to
the defense, and it has now worked to the detriment of the defendant. I am
saying that based on the Commonwealth's allowance of Judge Ribner to
follow that policy, it has worked to his detriment. I am suggesting to the
Court that, as a result of that, it may have been one of the most crucial
and important facts for witnesses on behalf of Mr. Jamal, and we were
denied that information.
Conveniently, the Commonwealth was able to maintain
contact with all of its witnesses that it presented. Of course, not only
did we have a problem with Debbie Kordansky, but we had some problems with
some of the other witnesses as well, but we were just talking about Debbie
Kordansky at this point.
Page 30.
I am suggesting that if, in fact, the Commonwealth
accepts that policy, that, "Yes, we will not give you that address, but we
will provide it at the time of the trial if the Judge so orders," they
have already then prejudiced the rights of the defendant.
If again we have a situation like Debbie Kordansky, where
at the time of trial she is gone, we are not able to conduct a separate
and independent investigation. We have to then rely upon the district
attorney. We certainly can't introduce her statement; it is an unsworn
statement.
THE COURT: Well, you finally did contact her.
MR. JACKSON: We contacted her by phone.
MR. JACKSON: Yes, sir, and I couldn't compel her
appearance.
MR. MC GILL: Yes, sir.
Your Honor, first of all, the purpose for the deletion of
the addresses of Witnesses
Page 31.
is for their protection and privacy, but particularly the
protection of the witnesses.
Judge Ribner, who handles all of the homicide cases
through the Calendar Room, channels the cases through different
courtrooms. There have been various specific incidents, one in which I was
actually trying a case and a specific eyewitness, during the course of
voir dire, received visits during the night and the door of the witness'
premises was shotgunned and almost blown off. This is the primary purpose
of that.
And during the course of this case, particularly, there
also is a concern, naturally, because of the volitive nature and highly
controversial aspects of this trial. Even I myself at times have received
rather unfriendly phone calls and correspondence, et cetera, during the
course of the trial. So there is indeed a good-faith basis for the
deletion of such addresses.
With respect to this particular witness, this witness by
the statement itself does not indicate on its face any direct assistance
for
Page 32.
this defender, for example, as stated in the brief,
speaking about, "saw a man run from the scene of the shooting after
hearing the shots, the gunshots."
In the statement, the individual saw nothing at all in
relation to the shooting itself. But even if you were to take the
statement solely on its face, all it says is that, "a man run from the
scene." In what direction, where, or at what time, or having anything in
the person's hand or anything, none of this is part of the statement,
simply because, if judging from the statement itself, this was not
observed.
Going further than that though, at the request of the
Court, as well as Mr. Jackson at the time when we did hear from him,
despite the apparent irrelevance of the statement itself, of what this
individual could offer, we offered to attempt to locate her. The address
that was on the statement was not a good address. It was a bad address,
meaning that it was an inaccurate address. We attempted at that address to
have her brought in, but there was
Page 33.
no one there by that name. That individual was not there.
We further, through various means, attempted to get a phone number. This
was for the defense.
We finally did get a phone number of this witness
provided to Mr. Jackson. As a matter of fact, as he has already stated, he
was able to talk to her. I would also state that the police officers
themselves in attempting to contact her were met with considerable
opposition on her unwillingness to come in. We did not know where she was
residing. We had a phone number without an address on it.
So from the time that we heard the information, that is,
the request by the defense attorney, we immediately -- and I believe the
Court may have also ordered us to try to find the witness for the defense,
and we did, unsuccessfully. She had simply moved. Much like many times in
cases, it is of extreme difficulty in getting witnesses in but we were
ready, willing, and able. As a matter of fact, we even gave the phone
number to Mr. Jackson.
Page 34.
The previous phone number was also wrong.
And, lastly, the evidence itself was not of a substantial
basis, particularly as stated by the woman when she was finally
contacted.
MR. JACKSON: Your Honor, I would only say that the
Commonwealth still hasn't answered the question. That is, he points out
limitations, if any, to the statement that the witness made. What
direction the person would have run, if she was on the stand we could have
found out what direction. How long she saw him, we could have found out if
she were on the stand. We were denied the opportunity.
MR. JACKSON: No, it is not, sir, because we couldn't
introduce it.
THE COURT: Maybe you would let the Court have a look at
it.
MR. MC GILL: Yes, sir. I would be very glad to make that
available, Your Honor. We will make that C-l. I don't have it
Page 35.
right now, but I will include it at Your Honor's
request.
THE COURT: We will make it a court exhibit.
MR. MC GILL: Yes, sir.
THE COURT: Okay, the next one.
MR. JACKSON: Your Honor, in order to pay the money to the
forensic pathologist, there would be a $300.00 initial consultation fee
and there would be a fee for the examination or whatever would be done, as
well as a fee for testifying. I went back to Judge Ribner and made that
indication to him.
I understand what Your Honor is saying, that maybe you
can get the expert and say, maybe your fee will be paid and maybe it
won't. I could not find a pathologist who would accept that, sir. That is
my point.
THE COURT: All I can say is that I approved your bill.
Whether you get it or not, I don't know. It is a substantial bill. How
much are the taxpayers to pay?
MR. JACKSON: Your Honor, I don't know. How much is a
man's life worth? I can't answer
Page 38.
that question.
THE COURT: How much is a man's life worth?
MR. JACKSON: It is worth at least the cost of a
pathologist.
THE COURT: I agree with that one hundred percent. That is
true of everybody that is charged with a crime.
MR. JACKSON: Your Honor, if Mr. Jamal had been a wealthy
person -- I am saying that he is being denied the due process of law
simply because he is indigent.
THE COURT: You are not a millionaire, and I doubt that
you could afford the fees that you have submitted here.
MR. JACKSON: No, I could not, Your Honor. You are right.
I have paid money out of my pocket. I could not afford to pay the other
money as well as a pathologist.
THE COURT: What would a pathologist have shown?
MR. JACKSON: Your Honor, we could have gotten, I believe,
at least some more specific testimony with regard to the entry of the
wound,
Page 39.
and what happened to the bullets. He was the
Commonwealth's witness, Your Honor.
THE COURT: You mean, he is prejudiced?
MR. JACKSON: I don't know if he is prejudiced, Your
Honor.
THE COURT: You had a chance to cross-examine him.
MR. JACKSON: Yes, with my limited --
THE COURT: What would we have been able to do, exhume the
body so that the pathologist could now look at the time of trial?
MR. JACKSON: Your Honor, I don't know. That's just the
point.
THE COURT: I have to know what you are arguing about. You
are asking me for certain things and I told you that I gave you everything
you had asked for. What did you want me to do, exhume the body so that a
pathologist could look at it?
MR. JACKSON: It wasn't you that made the denial. It was
Judge Ribner that denied it. It was before the trial.
THE COURT: Even at the time that Judge
Page 40.
Ribner heard this matter, the man had already been
buried. So what is a pathologist going to do, exhume the body?
MR. JACKSON: Your Honor, if there is reason to do that,
yes. If a pathologist, one who is trained in forensic science, if in his
reading, he reads the medical examiner's report --
THE COURT: Why didn't you let him read the medical
examiner's report?
MR. JACKSON: Because he said I would have to give him
$300.00 before he even talked to me.
THE COURT: To even read it?
MR. JACKSON: Yes, sir. I went back to Judge Ribner, and
he said, "That is up to the Trial Judge." By the time we get to trial and
the medical examiner's test, it is too late.
We had another issue, Your Honor with regard to the
ballistician. At first, Judge Ribner approved it, Your Honor.
THE COURT: You asked for $350.00.
MR. JACKSON: Yes. He came back and
Page 41.
his bill is $750.00.
THE COURT: That is what you put here. I can't help what
his bill is now.
MR. JACKSON: What his actual bill is, is not the point.
It goes to my ability, and I am not wealthy at all. It goes to my ability
to go out and separately and independently pay for these persons to
provide their services.
A part of the ballistician's money, I did pay. We have an
investigator whose bill is approximately $900.00. Judge Ribner approved
$150.00.
I know what Your Honor has done, but that is after the
fact.
THE COURT: Let me say this: I didn't even see this
investigator and you put in a bill for $562.50.
MR. JACKSON: Yes, sir.
THE COURT: I don't know what he did, if he did
anything.
MR. JACKSON: I understand, Your Honor. I am certainly
prepared to present the results of his investigation.
THE COURT: We have a Photographer
Page 42.
here for $400.00, which I approved. I didn't even see him
in the courtroom. I don't know what he did.
MR. JACKSON: There were two orders for the photographer;
one was a forthwith order where he took some photographs of Mr. Jamal and
later, he took photographs of the scene as well.
THE COURT: The only thing I see, you have to socialize
the entire legal profession; otherwise, I don't know how I am going to
answer your questions.
MR. JACKSON: Your Honor, that very well may be the
answer. In the meantime, the case at Bar, I am arguing that Mr. Jamal has
been denied an equal protection of the law simply by virtue of his
indigence.
THE COURT: Show me a case that says he is entitled to all
of this.
MR. JACKSON: The due process clause, Your Honor.
THE COURT: That doesn't say that to me. Show me a case.
You show me a case that says what I have given to you in this case is
not
Page 43.
adequate.
MR. JACKSON: Your Honor, there obviously is no case that
says Your Honor is required --
THE COURT: There is no case. If there is no case, I am
not even going to consider it.
MR. JACKSON: Very well, sir.
THE COURT: Unless you can show me some cases, we are just
going to stay here and argue all day for nothing.
MR. JACKSON: Very well, sir.
THE COURT: I don't know what more I can give you than
what I have already okayed for you.
MR. JACKSON: But, Your Honor, what
you did is not the point, because what you did is approve after the fact.
That's my point. It is what was done initially. I don't need to pay the
investigators and the pathologist after the fact.
THE COURT: You are saying that the Supreme Court ought to
change the rules.
MR. JACKSON: Absolutely.
THE COURT: Okay. You argue that to them, that we should
give you x-number of
Page 44.
dollars.
MR. JACKSON: Because his constitutional rights are
violated.
THE COURT: How are they violated?
MR. JACKSON: Your Honor, if they say, "We won't come in
and do anything until you pay us," and you say, "We will pay you after the
fact, if they will wait." I choose, as court-appointed counsel, to wait
for a year or so to be paid, but you try telling that to an investigator
or a photographer or a pathologist.
They say, "Not on your life."
They won't do it. They have no obligation. They have no
canons of ethics that require that they do that.
THE COURT: How about all of the money that was collected
for him by this group?
MR. JACKSON: That was not for any defense purposes that I
know of, sir.
THE COURT: What was it for, then?
MR. JACKSON: Let me beg your pardon. One fee for the
photographer was paid out of that, $300.00, sir.
THE COURT: So we were also paying in
Page 45.
addition.
MR. JACKSON: Yes, that is an additional fee.
THE COURT: What did that photographer do? Why didn't you
use that money for your pathologist?
MR. JACKSON: Your Honor, if there was a reason to use
--
THE COURT: What did he do? What did that photographer do
that we paid him so much of the taxpayers' money? I didn't see anything he
did.
MR. JACKSON: If Your Honor please, I have the results of
what he did. I don't know in advance, Your Honor, what photographs --
THE COURT: What did he do?
MR. JACKSON: He took photographs, Your Honor. He
diagrammed the scene.
THE COURT: For this kind of money?
MR. JACKSON: Yes, sir. He also took photographs of Mr.
Jamal as well.
THE COURT: He took photographs of him, what for?
MR. JACKSON: In the hospital, while
Page 46.
he was in the hospital. This was, I believe, even before
the preliminary hearing.
THE COURT: And this is the kind of money they get
paid?
MR. JACKSON: Your Honor, I am not a photographer; I guess
so.
THE COURT: You are not moonlighting on the side. This is
the taxpayers' money. There is only so much I could do with it.
MR. JACKSON: Mr. Jamal is a taxpayer too, Your Honor.
THE COURT: I know, and so is everybody else. We have
x-number of crimes committed a year. If every one of them had to be paid
the money that you are getting paid, I don't know where the money is going
to come from.
MR. JACKSON: Your Honor, I don't think it is the fault of
an individual defendant that the criminal justice is expensive.
THE COURT: It is not my fault either.
MR. JACKSON: I am not suggesting that it is your
fault.
Page 47.
THE COURT: I can only go so far.
MR. JACKSON: Your Honor, my fault with regard to this
issue is not with Your Honor.
THE COURT: What you are saying is that everybody should
at least get $50,000.00 to start off with.
MR. JACKSON: No, I am saying, Your Honor, we are
pretrial, and you are sitting to make a determination whether or not I
need a pathologist --
THE COURT: How much money did this group collect for him
in advance?
MR. JACKSON: I have no idea, Your Honor.
THE COURT: What did they do with the money?
MR. JACKSON: I believe it was used to benefit his family
who were without funds, once he was incarcerated, but I do not know. I do
not have control over those funds, Your Honor.
THE COURT: Go on. I have heard enough about the
funds.
MR. JACKSON: Very well, sir. The next issue, Your Honor,
would be the Court's denial of the defendant's request
Page 48.
for reasonable trial assistants, which was a violation of
his constitutional due process.
Your Honor, we know that Mr. Jamal asked for John Africa
to defend him, and Your Honor denied that. Mr. Jamal then asked for John
Africa to be --
THE COURT: Wait a minute. What happened to that, for the
record? It went up to the Supreme Court, didn't it?
MR. JACKSON: Pardon me?
THE COURT: Didn't it go up to the Supreme Court?
MR. JACKSON: Yes, sir.
THE COURT: What did the Supreme Court say?
MR. JACKSON: Your Honor, with regard to what the Supreme
Court said, it is part of another issue.
THE COURT: What did the Supreme Court say?
MR. JACKSON: The Supreme Court made that you made that
decision and --
THE COURT: The Supreme Court said that my decision was
valid, that John Africa can't
Page 49.
represent him.
MR. JACKSON: Yes, that he could not represent him. There
is no question about that. I am saying that Mr. Jamal initially asked for
John Africa to represent him. Then he asked for John Africa to be his
counsel, to assist him, not to be his lawyer.
THE COURT: Well, the Superior Court recently ruled on
that fact, a case in front of Judge Guarino, where a third year law
student, an intern, wasn't permitted to sit in as defense counsel, and
that was upheld. Do you want the citation on that?
MR. JACKSON: Yes, sir.
THE COURT: I have it here.
MR. JACKSON: I can distinguish that, I believe, Your
Honor, but I will take the citation first.
THE COURT: He is not a third year law student, is he?
MR. JACKSON: Can I have one moment, Your Honor.
(PAUSE)
MR. MC GILL: Your Honor, I just asked
Page 50.
Mr. Jackson if he would take a look at the notes of
testimony for a moment.
MR. JACKSON: Just one moment, Your Honor. I have to find
some notes.
MR. MC GILL: Would Your Honor mind if we have one minute?
If I can get a certain volume of notes which is referred to in the brief
that I have just received today, I would like to look at them now during
the course of the argument. It may save a recess later.
THE COURT: Yes.
MR. MC GILL: Thank you, Judge.
MR. JACKSON: Your Honor, you were about to give me the
citation.
THE COURT: It is Commonwealth versus Michael Pinder,
which was filed January 28, 1983.
MR. JACKSON: 1973?
THE COURT: No, 1983. January 28, 1983, and you will find
that in 456 A2d 179, a 1983 case.
MR. JACKSON: Your Honor, I would agree, and I have no
argument at this point.
THE COURT: That will apply to my ruling
Page 51.
dealing with Theresa Africa, was it?
MR. JACKSON: Yes, sir.
THE COURT: It is the same thing. That is right on
point.
MR. JACKSON: Your Honor, at the risk of being wrong, I
would make the argument that a Trial Judge has the discretion as to how a
trial is conducted, as to who sits at counsel table and who does not.
Your Honor, it is certainly within your discretion to
make that determination, and the issue would be whether or not you have
abused your discretion. If there was in fact no one sitting at the
prosecution's table, I think that Your Honor, quite frankly, may have more
foundation to your ruling.
If Your Honor recalls, there was, in fact, a non-lawyer
sitting at the prosecution's table who was permitted to do that
automatically, without even a request.
THE COURT: During the course of the trial?
MR. JACKSON: During the course of the trial.
Page 52.
THE COURT: He said there was somebody sitting at your
table with you, Mr. McGill.
MR. JACKSON: Yes, sir.
MR. MC GILL: Your Honor, at my table was Police Officer
Gwen Thomas during the course of jury selection.
THE COURT: And that was the only time?
MR. JACKSON: No, sir.
MR. MC GILL: Yes, that was the only time that I can
recall. Perhaps Mr. Jackson has better recollection than I.
Perhaps at the beginning of the trial Detective William
Thomas may have been present in order to try to facilitate the volumes of
material that I had.
THE COURT: I don't remember anybody sitting at your table
during the trial, because we had had a side-bar conference and you agreed
that nobody would sit there.
MR. MC GILL: Yes, I did sit, if not the complete trial --
as a matter of fact, I never usually sit with anyone anyway. But I think
in that particular trial, Your Honor, almost the entire trial, I was
alone. because
Page 53.
that is what we had agreed to.
THE COURT: As a matter of fact, I had allowed Theresa
Africa to talk with him in the morning and in the afternoon.
MR. JACKSON: I have no disagreement with that, Your
Honor. I am saying that that does not correct the problem.
THE COURT: I don't think she was entitled to sit there. I
made that decision.
MR. JACKSON: I understand Your Honor made that
decision.
THE COURT: Because, actually, all the trouble that I had
with the defendant was at her instigation.
MR. JACKSON: Your Honor, I don't know that for a
fact.
THE COURT: I know that for a fact, because when I asked
if he would behave himself, he wouldn't give me an answer until he talked
to her. After I gave him permission to talk to her, he came back and said,
"I will behave myself." And he only did that after speaking to her.
MR. JACKSON: Your Honor, without
Page 54.
knowing the specifics of such, I can only argue that that
may have been because of the Court's erroneous ruling.
THE COURT: I didn't make any erroneous ruling.
MR. JACKSON: With all due respect, Your Honor, if you had
ruled that she could sit there, we don't know what would have happened
throughout the rest of the trial. And I will get to that point where the
Court --
THE COURT: Show me a case that says she has a right to
sit there. If you have one, fine. If you are just going to argue without
it, I stand by my decision.
MR. MC GILL: Just for one moment, Mr. Jackson. I will not
interrupt you again. May we have a brief side bar, sir?
THE COURT: Sure.
(A discussion takes place at side bar, off the
record.)
(The following takes place on the record:)
MR. JACKSON: Your Honor, in summary of that argument, I
would point out factually, that
Page 55.
Officer Gwen Thomas sat throughout the jury selection
process. Mr. Jamal made his request prior to the jury selection process.
So again, the Commonwealth was permitted to have a non-lawyer at counsel
table. The defense was not. There were times during the trial, as Mr.
McGill correctly stated, where Detective William Thomas, who was a
non-lawyer, sat at counsel table.
THE COURT: I don't remember such.
MR. JACKSON: Your Honor, I have specific recollection of
that fact.
THE COURT: Unless it is in the record. You can show me
where it is in the record and you called it to my attention. I have no
such recollection. I know you brought it up, about that fact during the
board hearing, but never during the trial. I think if you look at the
record, in our side-bar conference, Mr. McGill agreed that no one would
assist him at the trial.
MR. JACKSON: Your Honor, whether it is pointed out in the
record -- my reading of the record doesn't reflect it.
Page 56.
THE COURT: That is all the Appellate Court looks at, what
is on the record.
MR. JACKSON: Your Honor, for the basis of my argument, I
don't think there necessarily needs to be a distinction between the voir
dire and the trial itself. Both aspects of this trial are substantial.
THE COURT: I am saying that because that is the only
thing on the record that can be substantiated. You are stating that
somebody sat at that table during the trial, and that is not substantiated
by the record and will not be considered by the Supreme Court. I am
telling you that it will not be considered by the Appellate Court either
because you can say one thing. He can say another thing. I can say
something. If it is not in the record, they are not going to consider
it.
MR. JACKSON: Very well, sir. I won't argue that during
the trial, for the moment, that someone was there because I am not
conceding that it is not in the record. But I will say, Your Honor, that
during the voir
Page 57.
dire, which is obviously a significant and material stage
of these proceedings, it was granted to the Commonwealth and denied to the
defense. And I am saying that that constitutes a violation of his
constitutional rights and it was just wrong, Your Honor.
Your Honor, I am sure, as well aware of the fact that we
had investigators, social workers, experts, all kinds and numbers of
persons sitting at counsel table from time to time, depending upon the
circumstances.
And I think, particularly given the fact that Mr. Jamal
at least at the voir dire stage was granted the right to defend himself,
with no cost to the Commonwealth, he asked a reasonable request, that he
be given the assistance of John Africa or Theresa Africa or anyone else,
but it was denied. However, the Commonwealth says, "I need Officer Gwen
Thomas," and Your Honor said, "Fine. That is okay."
I am saying that he has been denied equal protection of
the law and for that reason, Your Honor was in error.
Page 58.
MR. MC GILL: Does Your Honor want me to respond to
that?
THE COURT: Yes, if you wish.
MR. MC GILL: Just very briefly, Judge, I really cannot
say that I do recall Bill Thomas staying for any length of time at all at
my table. I know occasionally during the recesses he would come in, in
case I needed some assistance, but I certainly, recall Officer Gwen
Thomas. I believe it was during the voir dire.
The primary objection was that Mr. Jamal wanted John
Africa to represent him. But irrespective of that, Your Honor had made a
decision, so I will move on. However, I might add, Your Honor, not only
the decision that Mr. Africa would not represent him as a lawyer, that was
made before Judge McDermott in the Supreme Court, but also the issue of
whether or not he could sit at the table was brought up to the extent that
it was raised in front of the Supreme Court and Justice McDermott, as I
recall, and the answer was that that is a Trial Court decision. So the
ball, so to speak,
Page 59.
was back in your court in reference to that.
I will point out, for the record, and it is all over the
record that the Commonwealth did not object to many things in reference to
Mr. John Africa and Ms. Theresa Africa, or anyone else that he wanted.
Your Honor, I believe, did agree and allow the following
things: We at no time said that John Africa could not see him, advise him,
or talk to him or whatever. We suggested, as a matter of fact, that Mr.
John Africa, who incidentally never appeared, would be permitted to sit in
the audience. He would be permitted to go up to the cellroom, consistent
with the regulations of the Sheriff Department.
That he would be permitted to consult with Mr. Jamal
before the trial, during any time of the recesses, whether it be at lunch
time or afterwards, and he could be in the trial if he wanted to. He could
have sat in the first seat during the course of the entire trial. All of
this was permitted.
It was not permitted and we did object to the fact that
he would sit at counsel table
Page 60.
as a legal representative, as one who would represent him
legally, because he was not a lawyer.
Secondly, and this was the primary concern of the
Commonwealth in this case, in reference to Mr. John Africa, and as stated
in the record: The reason for our decision to object to that was and still
is the fact that during the course of the trial in a case of such
magnitude and importance, that the fact of the matter would be that since
Mr. Africa represents, to say the least, a controversial lifestyle, and I
make no comment about its value, but it is indeed controversial -- and he
certainly represents it by his name as well as by his doctrine, and has
many followers of it -- to put that individual at counsel table, as far as
the Commonwealth was concerned, and I believe the Court agreed that by
doing that there was a fear of the Commonwealth that jury in listening to
the evidence may well change the issue from the facts of the case to the
lifestyle, sociology or philosophy of one individual, that being John
Africa.
Page 61.
By doing that, we have said from the beginning and
throughout that that changed the focus of what the twelve people were
supposed to consider, and that was the facts as they hear them, based on
the law as given to them by Your Honor.
Where there was possibly, at any time, a possibility that
those jurors would change the focus from what their job was, which was the
facts and the law to the controversial nature of Mr. Africa, and it may
well have gone against Mr. Jamal, it was the Commonwealth's view then and
it still is, that such a change of focus would not be fair to either party
in this case.
We, however, have no objection if Mr. Africa wants to be
here today or do anything, since a jury at this point in time will not
change its focus. The Court, with its knowledge of the law, would
certainly know how to handle the issues as they come up.
Thank you, sir.
MR. JACKSON: Your Honor, in brief response to that, with
regard to another
Page 62.
argument I am going to make with regard to self
representation. In United States versus Dougherty, Malone, and a progeny
of cases, where the issue presented to the Court at that time was that
there was a potential that the defendant may cause some disruption in the
courtroom. There had been a request by the state that certain precautions
be taken.
The United States Supreme Court said that there is the
possibility that reasonable cooperation may be withheld by the defendant
and the right later waived, meaning that later on he may be disruptive is
not reason for denying the right of self-representation at the start,
because something may happen later on may be the reason for the initial
erroneous ruling.
So to say that something happened later on, that is a
bootstrap argument. To say, "Well, there was disruption, so that was the
reason why we shouldn't have done it in the first place." But maybe if the
right decision had been made in the beginning, there may not have been any
disruption.
I will just go into the next argument,
Page 63.
Your Honor.
THE COURT: Do you want to answer that?
MR. MC GILL: Your Honor, may I speak to Mr. Jackson for a
minute?
THE COURT: Yes.
(PAUSE)
MR. MC GILL: Your Honor, it is a discretional decision as
to who would be at counsel table or for how long, and for what reason. I
don't think there has to be an abuse of discretion to determine that.
There may have been for whatever good reasons the Court would have, as I
have mentioned before, that would certainly be valid and not be viewed as
an abuse of discretion. I will point out that Your Honor permitted such
assistance by individuals before trial and during the recesses and
constantly during the trial.
Whether or not things occurred during the trial of a
disruptive nature, you still continued allowing such a dialogue between
Mr. Jamal and his supporters at any recess
Page 64.
that he wished consistent, of course, with the
regulations of the Sheriff Department.
MR. JACKSON: Your Honor, the next argument would be with
regard to the purported admissions of Mr. Jamal. I would like to initially
direct Your Honor's attention to the motion to suppress stage where
Inspector Giordano testified, among other things, that Mr. Jamal made
purported statements to him. Your Honor's decision, written findings of
fact and conclusions of law, addresses the issue with regard to Inspector
Giordano.
Essentially, the Commonwealth argued and Your Honor
accepted the argument that, in fact, Inspector Giordano was there to
neutralize the situation. To the extent that Inspector Giordano, as a
matter of law, was there to neutralize the situation, one must necessarily
so look at the factual scenario.
At the time that Inspector Giordano arrived on the scene,
the officer was on his way to the hospital. Mr. Jamal was in the wagon,
handcuffed behind his back. He was
Page 65.
shot. The officers were busying themselves, preserving
the scene, talking to witnesses and dispatching witnesses to 8th and
Race.
Nevertheless, Inspector Giordano comes to the scene,
opens the locked door, questions Mr. Jamal, and purportedly or allegedly
gets a response from him.
I submit to the Court that if ever there was a situation
that was already neutralized, it certainly had to be there when Inspector
Giordano arrived. What was he neutralizing? There was nothing that he did
other than ask a question, at best. The officers had taken the names and
addresses of all the witnesses. The injured officer was already off to the
hospital. Mr. Jamal was handcuffed, unarmed, in the back of a locked
wagon.
To say that Inspector Giordano was there neutralizing the
situation, I believe is straining the facts, Your Honor. There was nothing
to neutralize. And, of course, if there was no circumstance for Inspector
Giordano to neutralize, then, certainly, and
Page 66.
I think perhaps the Court could even concede that,
certainly, anything that Inspector Giordano may have inquired about was
certainly unconstitutional by virtue of his not giving Mr. Jamal any
warnings.
So, Your Honor must look at the factual situation. And I
think that I am correctly stating the factual scenario of when Inspector
Giordano arrived there, and he certainly wasn't neutralizing the situation
there at that time.
THE COURT: How about the rest of the statements?
MR. JACKSON: Your Honor, with regard to the security
officer, Priscilla Durham, I am suggesting to the Court that if, in fact,
the statement was made, "Yes, I shot the mother-fucker, and I hope he
dies," that, if in fact, it was made, it was in response to a question;
otherwise, the statement does not make sense.
"Yes, I shot the mother-fucker, and I hope he dies;" it
sounds, it speaks of, it smacks of a response to a question and not
something that someone would say. If he wanted
Page 67.
to say it, he would say, I shot -- and go on, yes, I shot
him. That is what she says. The other person who says that that admission
was made is Officer Bell.
We had requested and received discovery from the District
Attorney's Office within the appropriate time for discovery. We then, on
behalf of the defendant, requested that the police department conduct a
separate and supposedly an independent investigation of the police
misconduct allegation of Mr. Jamal, and there were a number of interviews
taken pursuant to that.
At no time were we told that Officer Bell ever heard any
statement made, whatsoever. And obviously, if, in fact, the Commonwealth
intends to use a statement by any witness, they must bring them at the
time of the motion to suppress, all statements, identifications, and
things of that sort.
At the time of the motion to suppress there was no
indication, whatsoever, that Officer Bell was going to testify that he
heard an admission. And, of course, Officer
Page 68.
Bell testified at the time of trial, over my objection,
that, in fact, he was there with Security Officer Durham and heard the
statement, "Yes, I shot the mother-fucker, and I hope he dies."
Assuming arguendo that the statement was made, that
statement was not given to the scrutiny of a pretrial hearing and, for
that reason, it should have been inadmissible. It was admitted into
evidence, over my objection, and I suggest to the Court that it was
erroneous and constitutionally invalid, Your Honor.
THE COURT: Mr. McGill.
MR. MC GILL: First of all, Your Honor, the statement of
Inspector Giordano that Mr. Jackson remembers, as part of his argument,
Inspector Giordano was not used at trial, so that statement was not
admitted into evidence at trial. Even if there were some error in the
motion to suppress ruling, it was indeed harmless because the statement
was simply not used.
In reference to the statement of Officer
Page 69.
Gary Be11 also, first of all, I would correct one thing:
Although the original statement of Officer Bell did not go into the facts
at the hospital, his original statement was solely dealing with the
possible connection of the defendant or his brother with other situations.
So that had nothing to do directly with the facts of the case.
At the request of the defendant, there was an
investigation by the Internal Affairs Bureau of the Police Department,
which investigation was independent of the District Attorney's Office
investigation which later also occurred. The results of both
investigations clearly stated that there was absolutely no misconduct on
many grounds, nonetheless yielded many statements, an additional 100
statements that were taken again at the request, basically, initially of
defense counsel.
These 100 statements, at my request were given to the
defense. The defense had asked several times for the investigation
results, and I had offered all of those statements. Even though the
statements did
Page 70.
not have to be given over until the investigation was
completed, under the rules of the executive order which permitted the
Internal Affairs investigation, it was still my belief, and our office's
belief that those statements should be made available. We did not object
that they be made available to the defense.
Judge Ribner then received all of the material and
directed that it be zeroxed and given to the defense. Those statements
included Gary Bell's statement which had the statement, the volunteered
statement of the defendant, that was introduced at trial. So that at least
one month before the trial started, he was in possession of that
particular statement.
In reference to the motion to suppress, Your Honor will
recall the testimony of Priscilla Durham. The statement that we were
talking about, which is the statement, quote, "I shot the M.F.'er, and I
hope he dies." That was testified to, as part of the motion to suppress,
by Priscilla Durham. That specific volunteered statement was the statement
of
Page 71.
issue at the motion to suppress and the statement that
was introduced at trial.
There was no subsequent time period in which Mr. Jamal
had stated that, other than a few seconds or minutes later as he was being
taken away into another area awaiting treatment. He had said it twice. But
the first time that he had stated that, present were Priscilla Durham and
Gary Bell, among other officers.
Priscilla Durham testified to that and it was litigated
at a motion to suppress. Gary Bell was there.
MR. JACKSON: That is not fact. Gary Bell did not testify
at the motion to suppress.
MR. MC GILL: I did not say that. That statement itself
was litigated through the witness Priscilla Durham.
Much like any kind of statement which is taken by the
police -- let's say it was a specific statement taken by the police, there
may very well be two or three detectives present at the time that hear the
statement. However, each and every individual who hears the
Page 72.
statement given at one time would not have to testify at
a motion to suppress, because you are talking about the same statement. So
you have one detective to testify to that, if that meets the burden.
The statement involving Gary Bell and Priscilla Durham
was the exact same statement as he was taken in and then placed at the
area where the doors were. So that, in fact, that statement was litigated.
It just so happens that besides Priscilla Durham, Gary Bell was also
there.
The final grounds for its admission, Your Honor, would be
the volunteered nature of it, as can be seen by the evidence at trial. The
evidence, in fact, did show it to be a volunteered statement and, as such,
it would be harmless inasmuch as it was actually testified to by Priscilla
Durham herself at the trial. So the fact that another individual was
present besides Priscilla Durham really, merely makes it harmless since
she, in fact, was litigated and it was the exact same statement.
The primary reason is that when you
Page 73.
have more than one person, the issue at the motion to
suppress is whether or not you satisfy your burden to show by a
preponderance of the evidence that it was a volunteered statement in that
particular case. And the fact that you have two, three, four, or ten
people there that heard that exact same statement at that exact same time,
you do not put all ten on, nor are you precluded from putting all ten on
at trial.
MR. JACKSON: Your Honor, in brief rebuttal, there are two
things with regard to counsel's harmless error argument with respect to
Inspector Giordano's purported admission:
The fact that he did not use it at trial does not correct
the error and does not make it a harmless error. If, in fact, it was
erroneous not to suppress the statement, then whether counsel as a trial
strategy or not uses it at the trial does not cure the error, and I don't
think the error is harmless.
With regard to Priscilla Durham, Your Honor, the same
standing, the same issue. The issue is different with regard to the
Page 74.
statement when we have a Police Officer Bell and a
Security Officer Durham. Assuming for a moment, your Honor, that in fact
there were a lot of officers there, counsel didn't bring any other
Philadelphia police officer to testify as to the legality of the
statement.
We have only Priscilla Durham, a security officer.
Whether in fact she may have been operating under the control and
direction of the police department is another question. But the issue is,
whether a Philadelphia police officer, who is constitutionally required
to, gave warnings to a defendant. I can go to a defendant and ask him
questions. The defendant tells me. There is nothing wrong with it, and I
don't think any argument is required to that.
Priscilla Durham is a civilian. She is a security guard.
She is not constitutionally required to give warnings to a defendant. So
for counsel to say that Priscilla Durham comes in and says it, so it is
all right for Gary Bell. He is in a different position; he is a police
officer.
Page 75.
THE COURT: I thought he said that that was a voluntary
statement.
MR. JACKSON: Your Honor, that is his argument, that that
was a voluntary statement.
THE COURT: If it is a voluntary statement, even if the
policeman is there, so what?
MR. JACKSON: I am saying, if you bring a police officer
in to say, "Yes, I heard that statement," we have to scrutinize it at a
pre-trial hearing to determine whether or not it was a legal
statement.
THE COURT: That would be true even with Priscilla
Durham.
MR. JACKSON: Your Honor, I don't argue that it wouldn't
be true with Priscilla Durham. I am saying that we did not have the
benefit of determining how the statement was heard.
Counsel argues that it was the same time that Priscilla
Durham heard it. That may be. But I am saying that by virtue of his being
a police officer, he is required to take the stand at a pretrial hearing
to determine whether or not that statement was legally obtained, and
Page 76.
counsel did not submit him.
My motion to suppress went to statements by anybody to
anyone at any time relevant to this case. That is what my motions went to,
sir.
Your Honor, the next question goes to the Court's denial
of our submission of a voir dire questionnaire. I have samples of the
questionnaire. I believe I submitted them to both counsel for the
prosecution as well as to Your Honor prior to the trial.
At that time Mr. Jamal had been granted the right to
represent himself and, indeed, Mr. Jamal was representing himself. Your
Honor ruled that the questionnaire could not be submitted. But, in fact,
we had some discussions back in the jury deliberating room prior to the
selection of the jury. At that time there were a number of questions that
are on the questionnaire that we felt were pertinent and necessary in
order to disclose the potential bias, prejudice, and other attitudes of
the prospective jurors. Your Honor denied that.
I understand and acknowledge that in
Page 77.
fact there is no constitutional or statutory requirement
that says that a jury is to be given a questionnaire. There is no
constitutional or statutory requirement that the specific questions
offered by the defense be asked.
What I am suggesting though, is that the Constitution
requires that Mr. Jamal be given a fair trial by impartial jurors. The
only way in which we can begin to determine whether or not those jurors
are impartial is to ask questions that are probative of that issue.
I submit to the Court that each and every one of those
questions as offered by then defense were, in fact, directed at disclosing
those biases, prejudices, and adverse attitudes of those prospective
jurors, and the Court's denial of that questionnaire violated Mr. Jamal's
rights.
I have argued that to some extent as well in the pretrial
memorandum and suggested to the Court that by the Court's failure to
submit the questionnaire, as well as, in the alternative, the Court's
refusal to allow
Page 78.
certain questions denied Mr. Jamal the right to disclose
the potential bias and prejudice of the veniremen.
THE COURT: Mr. McGill.
MR. MC GILL: Your Honor, I believe, very briefly, in the
voir dire questioning, Your Honor gave considerable time actually to the
defendant, Mr. Jackson, and myself, in fact, in going over each and every
question.
Your Honor limited certain questions. Your Honor at any
time can limit or extend the voir dire during the course of the proceeding
itself, in the interest of justice, in the interest of expediting the
matter, and in the interest of making sure that there is an orderly
fashion and a reasonably prompt progression of the trial. I think Your
Honor has that discretion and there was no abuse.
I think the primary issues that certainly were presented
at trial were explored extensively. As I count them, there were ten
volumes of notes of testimony alone, which constituted the voir dire and
over 150 venire persons were questioned extensively by Mr.
Page 79.
Jackson, very extensively, on three, four, five pages,
maybe even six pages, at times, per venire person.
MR. JACKSON: I would like to now direct the Court's
attention to Mr. Jamal's right to defend himself.
Your Honor, we start off with the United States Supreme
Court decision in Faretta v. California. In that case, Your Honor, the
issue of self-representation, to some extent, was put to rest. That says,
essentially, "if a defendant can satisfy the Court that he is knowingly
and intelligently waiving his right to counsel, then he can, in fact,
represent himself."
This has been before Judge Ribner as well as before Your
Honor, and both of you satisfied yourselves that indeed Mr. Jamal was
making a knowing and intelligent waiver of his right to counsel and that,
indeed, he could represent himself.
The Court went on as well, in the Faretta decision,
indicating that if in fact a defendant is given the right to represent
Page 80.
himself, he is the lawyer; he is not co-counsel.
The Faretta decision goes on to say, Your Honor, that
counsel cannot be forced on a defendant, that he has a right to decline
representation. There was dictum in the Faretta decision that suggested
that under certain circumstances back-up or amici counsel can be
appointed.
This decision was then taken up in the decision of
Michael Dougherty versus the United States. In the Dougherty decision, if
I can direct Your Honor's attention, is a decision that pretty much
outlines where we are.
Just to direct Your Honor to the factual scenario, before
the voir dire process was begun, Your Honor questioned Mr. Jamal and
apparently satisfied yourself that again, he was qualified to represent
himself, or at least that he was making a knowing and intelligent
decision. He sat in the back, along with counsel, and we had a discussion.
There was no disruption, no disturbance.
We began the voir dire. Your Honor decided that the
process of voir dire would be
Page 81.
conducted, that counsel for the prosecution would conduct
the questions for the state and Mr. Jamal would conduct the questions for
himself. The jury was advised that, in fact, Mr. Jamal would conduct his
own voir dire, that Mr. Jamal would question the witnesses, and that Mr.
Jamal would give the opening statement and the closing argument.
At some point during the voir dire questioning, one
witness indicated that she was unsettled by being questioned by Mr. Jamal.
As Your Honor well knows, the purpose of voir dire is to disclose any
bias, prejudice, or adverse attitudes of the prospective witness or the
venireman.
The fact that a witness was unsettled is no indication
that Mr. Jamal was doing anything that was inappropriate. There is no
indication that if Your Honor was doing, the questioning that the witness
wouldn't be unsettled, or if Mr. McGill or I conducted the voir dire, that
it wouldn't unsettle the witness.
But, indeed, Your Honor, that was the reason that Your
Honor decided that at that
Page 82.
point Mr. Jama1 should no longer represent himself,
because he was unsettling the witness.
But, indeed, that is not even the question. Whether Mr.
Jamal should continue as counsel or not, as the United States Supreme
Court said in the Dougherty decision, it is whether or not he is being
deliberately disruptive, not whether he is unsettling a witness.
At that time, and I know for a fact there was no
allegation by the Commonwealth or by Your Honor that Mr. Jamal was in any
way being disruptive, certainly not doing anything deliberately wrong.
If, in fact, Your Honor felt that his questions were
wrong or inappropriate, the Court, I believe, in this instance had an
obligation to say, "The line of questioning is inappropriate. The
questions are wrong. You have to do something to correct it or, in the
alternative, I am going to terminate your right to self-representation,"
because, later on, in Your Honor's view, Mr. Jamal becomes disruptive is
not reason to say, in the first place, that the Court was right to deny
him the right to
Page 83.
represent himself.
Going on to the Dougherty decision, and for purposes of
counsel, the Dougherty decision is cited at 154 U.S. App. D.C. 76 473 F2d
1113. So that Your Honor will understand the factual background, this was
a case in Washington D.C., the so-called Washington, D.C. Nine, where
there were several defendants.
There were nine defendants originally, and some of them,
before it went to trial, had some non-trial disposition of their case.
There were six defendants brought to trial. Three of the defendants wanted
to defend themselves, and three of them wanted to use their own counsel.
Judge Pratt, who was the Trial Judge, was concerned that those defendants
who were representing themselves might cause some adverse inferences on
those persons who were being represented by counsel. There was a lot of
discussion.
Eventually, all of the defendants decided that they would
represent themselves. Then the Judge indicated and the state indicated
similar arguments of Mr. McGill. There were indications that the
defendants had committed
Page 84.
some deliberate acts against the Dow Chemical Company,
that they had broken in and done a lot of vile acts.
For that reason, they felt that the issues were complex
and that the defendants were potentially disruptive and violent and for
that reason, Judge Pratt ought not to let them represent themselves. Judge
Pratt said, "Yes, you are right. If they are violent, we are going to have
a problem."
I have indicated to you earlier, Your Honor, that the
Supreme Court said that you can't decide after the fact of disruption that
they would have, in fact, been disruptive. My argument to you earlier, the
Supreme Court adopted, saying that if, in fact, their right to
self-representation was granted in the first place, there may not have
been any disruption.
There were disruptions in that trial. The disruptions
were all associated with their right to self-representation. The Court
said that if, in fact, they were given the right to self-representation in
the first place, there would be no reason for them to later disrupt
Page 85.
the trial, because they were representing themselves.
The disruptions, if any, that Your Honor considered Mr.
Jamal committed were because his right to self-representation was denied.
He, of course, requested, required, and demanded that I not be his
counsel. He had previously requested that John Africa represent him. But
throughout, any and all of those disruptions were associated with his
right to self-representation.
If, in fact, the Court had properly ruled that he could
represent himself, these disruptions may never have occurred, Your
Honor.
The Supreme Court reversed and remanded the trial of
Dougherty and the others, saying that, in fact, their right to
self-representation was denied; that the Court could not bootstrap its
argument saying that there was potential harm, potential violence, and
that is why they could not represent themselves.
With regard to back-up counsel, the Court, in Dougherty
also addressed that issue. The Court said that there may be two
reasons
Page 86.
for appointing back-up counsel. One of the reasons for
appointing back-up counsel would be that the Court may wish to inquire of
a witness or if the defendant because he was not articulate or because he
just decided not to question a witness, the Court may use its back-up
counsel, meaning back-up counsel to the Court in an amici role. I don't
think that my appointment was that appointment.
The other appointment was the appointment for back-up
counsel to the defendant, where the defendant requested specific
assistance from the lawyer. If there was some wording, some ruling or
interpretation that the defendant needed or wanted, he could use that
back-up counsel to provide that information.
The Court pointed out that it was important that the
defendant be the lawyer and not an extension of back-up counsel, that it
is the defendant's defense and not simply a defense that must be presented
to the jury. By virtue of the defendant being denied the right to
represent his own case, he then had a defense presented but not his own
defense.
Page 87.
The Court specifically pointed out, Your Honor, in this
case when the defendant stood before the jury, that he should stand there
alone if he is representing himself. There was no need for back-up counsel
to sit at counsel table even, because his role was only as an assistant.
It was only as a back up for the defendant to call upon, when and if he
saw fit. If, in fact, the defendant felt no need to call upon back-up
counsel, then there was no role to play for back-up counsel.
The Court pointed out as well that if, in fact, the
suggestion of disruption occurred as the state suggested, then back-up
counsel could then be called upon to serve as a lawyer but only when that
disruption occurred, not before. In this situation, as I have pointed out
to Your Honor, he was denied the right to represent himself, not through
any deliberate disruption.
The Court and I believe that those are words of art,
"deliberate disruption." If, in fact we say that he was inarticulate, that
is not deliberate and, of course, there was no
Page 88.
allegation that he was inarticulate. If we say that he
was asking inappropriate questions, that is not deliberate disruption. If
we say that he was taking too long to question the witnesses, that is not
deliberate disruption.
One can begin to characterize deliberate disruption as
very many things. But I think if one does not take a reasonable approach
as to what is deliberate disruption, then I think that it would then be an
obligation of the Court to say, "If you question a witness for five or six
pages, I would consider that to be deliberate disruption."
Of course, that was not done in this case, because I
don't think that Mr. Jamal was causing any deliberate disruption. What Mr.
Jamal was doing, was exercising his right to disclose the bias, prejudice,
and adverse attitudes of the veniremen that appeared before this Court.
And until that witness said, "I am unsettled," the issue of Mr. Jamal's
right to represent himself was not at all at issue.
His denial of self-representation, unfortunately, created
another issue, and that
Page 89.
is that the jury was told that he would represent
himself. We conducted the voir dire in a certain manner, that is, they
would be questioned by the respective counsel, Mr. McGill and Mr.
Jamal.
Because Your Honor was concerned that Mr. Jamal was not
doing it the way in which Your Honor felt was appropriate, Mr. Jamal was
stopped. Mr. Jamal was then still his own lawyer. Your Honor then said,
"Mr. Jackson, you conduct the voir dire, because either you do it or I am
going to do it." What that does, Your Honor, is change the method of jury
selection within one trial.
The Court has already addressed that issue, and again, it
is also cited in my memorandum. That is New York v. Mancuso, et al, cited
at 26 AD2d 292. The Court said in that case, "A change in the method of
jury selection prejudiced the defendant because the jury would reasonably
believe that the defendant has been deprived of the right to participate
in the voir dire because of some misconduct."
Page 90.
I think that that is the only reasonable assumption that
a juror would make, that there was some misconduct on the part of the
defendant. And, again, there was no allegation by the Commonwealth, no
allegation by Your Honor or holding by Your Honor, that he was being
deliberately disruptive or that there had been any misconduct, only that a
witness said, "I feel unsettled; the questions are unsettling to me."
In the Mancuso case, the Court said that the defendant
was denied his right because the method of jury selection was changed in a
manner that adversely reflected on the defendant. For that reason, Your
Honor, as well, we argued that his right to self-representation was denied
and it had its impact upon the jury when they had to view Mr. Jamal not
being the lawyer later on.
Your Honor, if I could direct you again back to Dougherty
versus United States, just to flush out some more of the points that were
made earlier with respect to the defendant's right to self-representation,
particularly dealing with the possibility of disobedience
Page 91.
or disruption as a basis for denying his pro se
defense.
The Court said, and I quote specifically, at page --
unfortunately, the pages have not been xeroxed. I don't know if counsel
has a copy of it, but under the section of possible disruption as a basis
for denying a pro se defense, the Court said that he may claim, with some
merit, that his pro se rights include his right to appear before the jury
in the status of one defending himself. That this is defeated if too
conspicuous a role is played by an attorney, unless it clearly appears to
the jury that he does not have the status of defense counsel.
What the Court was talking about in that instance, Your
Honor, was the role of back-up counsel. What does the jury reasonably
infer my role to be, defense counsel or something else? If, in fact, the
jury believes that my role is indeed defense counsel, then that is
defeating Mr. Jamal's right to self-representation, because he has the
right to stand as one to defend himself.
Page 92.
The fact that I was required to participate along with
him defeated the right that the Court bestowed upon him. And, again, the
case was remanded for a new trial, just on that issue alone, the right of
self- representation.
I have read earlier, Your Honor, with regard to the
Court's denial of trial assistants sitting at counsel table, that the
Court said, if the possibility that reasonable cooperation may be withheld
-- because there was some discussion as to whether or not the defendants
in the Dougherty case, whether or not they were going to cooperate with
the Court and defense counsel -- and the right later waived; meaning the
defendants would do something to waive their right to self-representation,
is not a reason for denying the right of self-representation.
I think that is what we have here, where the Court, I
believe, in violation of the due process clause denied him that right
before there was any reason to do so. Your Honor, again, it goes along
with my role as back-up counsel, in the Adams versus U.S. case.
Page 93.
It was also corroborated and confirmed in the ex rel
McCann case, dealing with the right of a defendant to dispense with his
lawyer's help.
That case says, essentially, that that decision rests
with the defendant alone and could not be usurped by the Court. It says
also that an accused has a fundamental right to confront his accusers and
his country to present himself and his position to the jury, not merely as
a witness or as a mouthpiece, but as a man on trial who elects to plead
his own case. Mr. Jamal was denied that right to plead his own case.
With regard to the arguments I made earlier with regard
to the representations made to the jurors as to Mr. Jamal's role, the
Court, again in Dougherty said, and I am reading: "Presentation of closing
statements by the defendants was originally promised and then taken away
because of their disruptions. But the vast bulk of the incidents cited in
the government's brief as such disruptions, 81 out of 89 were essentially
colloquies in which the defendants were asserting their pro se
rights."
Page 94.
Out of all of those disruptions, and they counted 89
disruptions, 81 of the 89 disruptions went back to the fact that the Judge
had originally denied them the right to represent themselves in the first
place, similar to the situation of Mr. Jamal.
"That one cannot fairly reason backward from the conduct
of a defendant at a trial, where he was denied the right to represent
himself, to what his conduct would have been if at the outset the Trial
Judge recognized that right and at the same time clarified the
responsibilities of representation."
Your Honor, with regard to the clarification of
representation, to the extent that this unsettled venireman created a
problem, according to this decision, there would have been a need of the
Court to inform Mr. Jamal as to what, if anything, was particularly and
specifically wrong with his inquiries. That was not done.
It was simply a decision made summarily and, I submit,
arbitrarily and capriciously that, "You will not continue," and it was
taken
Page 95.
away from him. The Supreme Court said that you cannot do
that, Your Honor, and it was done in this case. For that reason, Mr.
Jamal, in and of itself, ought to be granted a new trial.
On that issue, I rest.
MR. MC GILL: Your Honor, I would like to handle that
issue on two phases, one being the voir dire portion of the trial, and
then also the trial portion of the trial.
First of all, Your Honor had made it very clear to the
defendant as well as Mr. Jackson, and it is all on record, in the
colloquy, that although he would be permitted to represent himself, that
he would be removed if the Court felt, based on the facts, that disorderly
behavior and disruptive actions took place, at which point he would not be
allowed to come back and represent himself again. This was made very clear
in the colloquy to Mr. Jamal, who did recite, "yes," to the words that he,
understood that that was the situation.
From that time, from the motion to suppress, which he was
permitted to litigate throughout and argue, as our office, myself,
Page 96.
the Commonwealth certainly urged also Mr. Jackson to be
able to argue at any time during that motion to suppress, which point he
actually argued extensively at the end of the motion to suppress. So that
throughout, he was able to represent himself.
During the course of many of the rulings, there were many
responses made by Mr. Jamal that could very well be viewed as bordering on
contemptuous acts. The Court, however, permitted everything to continue.
Starting with the jury selection, again he was permitted to ask questions
of jurors. He also had asked for John Africa and made a very big point of
it to the Court and continually, even during that time before he stopped
asking questions of the venire persons, made extensive argument.
The Court continually told him that you had ruled and
again and again indicating, which he later would say, "The rulings were
not to my satisfaction." No matter how often you said that you had ruled,
he would go on and on. Still, the Court permitted that to continue.
Page 97.
During the course of the voir dire, at one stage, after
seeing several different venire persons obviously in some discomfort, some
anxiety, and some fear, I then went over to side bar and asked Your Honor
-- Mr. Jamal was not asked to be removed at that time nor was he removed.
I asked that, according to the Rules of Criminal Procedure, if the Court
would take over the voir dire.
You did, initially, take over the voir dire questions at
that point, because Your Honor had noticed, number one, that the voir dire
questioning was dragging on, that it was unduly long. And it was clear to
you from your own observations of many of the venire persons, who were to
make a judgement in this case, not only discomfort and anxiety but a great
deal of concern.
In the interest of justice, you did not at that time
remove Mr. Jamal. However, you did take over the voir dire and you stated
that any questions he wanted to have asked, he could submit them to you or
his attorney could, submit them to you and you would ask them. You then
said,
Page 98.
"Rather than have me do it, Mr. Jackson may ask the
questions," because Your Honor was concerned about the progression of the
voir dire.
In attempting to get a fair jury in a very highly
controversial case, it was important for the Court to exercise very keen
judgment and discretion in determining that the jurors picked would be
fair to both sides.
Your Honor, under the authority of the Rules of Criminal
Procedure, did not remove Mr. Jamal, but simply at that point took over
the voir dire and eventually had Mr. Jackson take over the voir dire,
since that would appear to be even more appropriate and helpful, you felt,
for the defense that you stayed out of it. I asked questions and Mr.
Jackson asked questions.
I will also state to the Court that originally, at side
bar when it was requested that you take over the voir dire, that meant the
Commonwealth wasn't able to ask questions of the venire persons
either.
So for at least a few venire persons, you asked the
questions and neither the Commonwealth nor the defendant had an
opportunity to ask questions. This is
Page 99.
done in many trials.
In a number of trials where there are two attorneys,
where the Court believes it is either going too slowly or too many
irrelevant questions are being asked, the Court takes over the voir dire.
This has been done, and it has nothing to do with removal of counsel, nor
does it have anything to do with an individual representing himself. It
has to do with the ways in which, in the interest of justice, to get a
fair juror in a reasonable amount of time.
Your Honor then permitted Mr. Jackson to ask questions in
all of the areas that were covered, in the general areas that were covered
in the back room. So there indeed was no prejudice, whatsoever, to counsel
or to Mr. Jamal.
The next segment comes to the removal of the defendant.
Keeping in mind, of course that the colloquy stated initially to him, that
he was well aware throughout that he could be removed for disruptive and
disorderly behavior. Your Honor can pick almost any page in the
Page 100.
record, at various portions, to see the conduct and
actions of the defendant, even before he was removed as counsel.
There were multiple examples of direct contemptuous
actions to the Court before he was removed, such as Mr. Jamal actually
stating to the Court, "You want a conviction. You want me executed like
Mr. McGill does. You are not giving me a fair trial." I can only imagine
if counsel in any other courtroom would have said that, or a defendant in
any other courtroom would have said that to another Judge, what would have
happened to him. Your Honor permitted it.
I think that there has to be a real distinction made
between a question of removal of counsel because of a specific example or
a series of examples of disruptive behavior and the actions of a Court who
showed an unbelievable, an incredible amount of patience throughout the
motion to suppress and the voir dire and the side-bar conferences of the
conduct and actions, which is of record, and I don't want to burden the
record now with reciting it. It is
Page 101.
throughout the record, before he was removed. The fact
that he was not removed sooner is one more example of the Court's patience
in hearing such accusations from a defendant that would anger the most
patient of any Judge.
Finally, Your Honor, in receiving various questions and
comments and accusations of the Court's conduct made by this defendant,
statements which, if not directly, by clear inference indicated that he
was not going to abide by your laws, that he was not going to abide by
your rulings because he didn't agree with them. After all of that, you at
least on five occasions, told him, "Are you being disruptive? Do you
realize what will happen to you?
It just didn't sink in, which made me seriously wonder
whether the whole thing from the beginning was a design to gain some sort
of sympathy because he wasn't being granted his desire to represent
himself. Granted the difficult facts which he had to overcome from the
evidence, which he was well aware of for many, many months, one would
wonder whether
Page 102.
that was not a neat trick in terms of an intended example
of getting removed in order to gain sympathy that he would certainly make
clear to the jury in one way or another, which he did throughout.
Your Honor, at that final point, after a series of
disruptive actions, and, I would say to this Court, downright contemptuous
behavior, the Court removed counsel. It is clearly within the propriety of
the law, within the ambit of the Court's decisions, many of them could be
cited and the Court is well aware of them, at any rate, where a defendant,
whether it is even viewed that he may in the future but where he has
clearly made it, as a matter of record, before this Court, that he is not
about to follow laws because he doesn't know rules, because he doesn't
agree with it, he is not about to do anything that he doesn't feel is
right for him.
Unfortunately, for a state of mind like that, that is not
the context in which this Court, any court, and certainly not the Supreme
Court viewed as the conduct which is appropriate
Page 103.
in a proceeding where justice is to be considered and
meted out. So, on the reference of that, after Your Honor's final warning
to this defendant, he was removed.
If Your Honor desires, I would gladly give the record as
presented, on its own, to the Supreme Court where they can so readily see
a patient Judge being constantly berated by someone who refused to follow
the rules and who only demonstrated almost physically, later on, as to his
unwillingness to follow rules.
From the very beginning, he wouldn't even stand, as he
doesn't do today. One would think that a minor point but, if anything, it
is symbolic of this man's view of the system. But, unfortunately for him,
the system is the one who is making the decision in this particular case,
as in all cases, as to whether, and as to what extent a man's rights have
been violated or not.
So, Your Honor, I would suggest to this Court and offer
the record as examples of disruptive behavior that justifiably produced
the ejection of the defendant.
Page 104.
It is also interesting to note that even after the
removal of the defendant, although Your Honor was not required to do this,
you constantly permitted the defendant to come back to the courtroom. Even
after a physical resistance of two sheriffs by this defendant, who is no
weak individual but rather strong, you still permitted him to come back.
You asked him if he would behave himself, and he continually violated the
Court's orders: He wouldn't sit down, and he wanted to address the jury
when he wasn't supposed to after having been removed. Judge, I just don't
want to go through them all. You are well aware of them and the record is
replete.
I would only say, Your Honor, that in my experience,
which is over ten years in this criminal justice system, there is no Judge
in City Hall that I could even remember or know of certainly today that
would have allowed the activity that you did for as long as you did before
ejecting an individual who may very well have wanted to be ejected from
the beginning. But even if he didn't, he certainly deserved it
Page 105.
based on his behavior, the actions on the voir dire,
consistent with the Rules of Criminal Procedure, the actions before trial,
and the removal of Mr. Jamal, brought on by his own conduct.
MR. JACKSON: Your Honor, I am sure that Mr. McGill and I
can argue the facts as to when it took place. I think it is very clear as
to when Mr. Jamal's right to self-representation was denied.
And even if we don't argue when he was declared or
removed as the lawyer, we could say, well, at the time that Mr. Jamal was
denied the right to continue to conduct the voir dire and the option was
given that I conduct the voir dire, that flies in the face of the
Dougherty decision. That says, if he is representing himself, then he is
going to do it. If I am conducting the voir dire, then it certainly
appears as if I am defense counsel.
The Supreme Court said, in that decision, that means I am
representing him. So it seems to me by words, deeds, and actions at that
time that certainly, clearly to me, Mr. Jamal was
Page 106.
not his own lawyer. If he was not conducting the voir
dire, then, clearly, according to the Dougherty decision, he was not his
own lawyer.
But, I think, with regard to when he was later declared
by you not to be representing himself, again it was not as a result of any
disruptions. The disruptions that Mr. McGill talked about were long since
the time that he was denied the right to represent himself.
I would only point out to you, as well, and I implore
Your Honor, and invite you to read the Dougherty decision. In that case,
Justice Bazelon pointed out that Judge Pratt had a very difficult decision
to make, and that their decision was not an indictment of the Judge or
what the Judge had to do during the trial. It was a very exciting time. It
was a time when the Judge apparently was looking out for the interest of
the defendants and felt that it was not in their best interest to allow
them to represent themselves.
Mr. McGill has indicated that Your Honor has exercised
patience and other virtues of that sort. That is not the point, as the
Page 107.
Court pointed out. And Judge Pratt exercised a lot of
patience, a lot of tolerance, and virtues of that sort. They nevertheless
overruled the Judge and said, "We know that you tried to do good, but you
did wrong." I am suggesting to the Court that that is the instance that we
have here in this case.
Your Honor, I am going to now direct my attention with
regard to a challenge for cause to John Fitzpatrick and Edward G.
Courchain. I am not going to take up the Court's time with regard to John
Fitzpatrick, because his challenge for cause was during the time that we
still had peremptory challenges on the jury.
Edward G. Courchain was an alternate who ultimately
became one jury member. At the time that Mr. Courchain was selected we had
no peremptory challenges left to excuse him from the jury. Without getting
into the specifics, and I certainly can from the notes of testimony,
during the initial questioning of Mr. Courchain, he was asked whether or
not he had some bias or whether or not he could be fair and he,
essentially, said, "No."
Page 108.
After that, Mr. McGill questioned him: "If the Judge were
to tell you that you are to do this, that and the other, could you do it?"
He eventually said, "Yes. I could do it."
We are suggesting to the Court that when Mr. Courchain
gave us that, and he said it several times on cross-examination and on
direct examination, he didn't think that he could be fair, and after being
told that he would be ordered to be fair, he then said, "I feel that I can
be fair;" I am suggesting to the Court that he should not have been
allowed to sit as a juror.
It has been pointed out, Your Honor, in many studies and
I don't mean studies conducted by Mr. Jamal and Mr. Jackson, but studies
conducted by the American Bar Association, as well, and it is pointed out
in several advisory committee reports that I have cited in the memorandum,
which says essentially that a juror's good faith efforts to lay aside
those beliefs cannot be determinative.
After you tell a juror that it is your duty and I am
ordering you to be fair, even
Page 109.
though you think that you can't be fair, we don't know
whether or not the juror can then follow the Court's order, whether or not
the juror can, in fact, put away their personal feelings. And I am saying
that with regard specifically to Edward G. Courchain that the Court was in
error in not allowing our challenge for cause.
MR. MC GILL: Your Honor, in reference to Edward G.
Courchain, that was one of the last group of jurors we spoke to.
That particular juror started out by saying that he had
some opinion in reference to guilt, as I recall, but that it was based
upon the newspaper articles. As the juror was continually questioned, it
developed through questions by Mr. Jackson, myself, and finally by the
Court to make sure, and he stated that even though he had an opinion based
upon the newspapers, that he could set that aside and give the defendant
as well as the Commonwealth a fair trial.
He was specifically asked whether or not anything that he
read at all would in any way lend him to convict this defendant, or in
Page 110.
words of such a nature, and, he said, "No," and he
explained why. After it was explained to him both by the Court and also
questions by myself, he said, "Well, I just knew that something had been
done. Something had been done, but I don't know who did it. I don't know
who did it. Right at this point, it would have to be proven to me."
It is clear that based on the record, he did not have a
fixed opinion of guilt but, rather, was able to be fair and impartial, as
stated on the record, and I just refer you to the record for that which
would be clear.
The same with Mr. Fitzpatrick; he was an earlier
individual who was questioned and he himself made it very clear that he
could be fair and impartial. So I just refer the Court to the record and I
will not argue longer on that point, that despite opinions that he may
have had or whatever, he did not have a fixed opinion of guilt and could
give both sides a fair trial.
MR. JACKSON: I invite Your Honor to read the record as
well, so that we don't have
Page 111.
to get into splitting hairs about what the testimony
is.
Your Honor, I would like to next direct your attention to
what I consider to be --
THE COURT: Just one question: When was Mr. Fitzpatrick on
the jury?
MR. MC GILL: I should have made that known. He was not on
the jury.
MR. JACKSON: I used a peremptory for him.
THE COURT: Was he on the opening?
MR. MC GILL: No, he was not. He exercised a peremptory
challenge.
THE COURT: You exercised all of your peremptory
challenges.
MR. JACKSON: On the main jury, I didn't use them up.
THE COURT: You only used 18.
MR. JACKSON: I didn't use them up. That is why I didn't
argue. For Mr. Courchain, I didn't have a peremptory left for Mr.
Courchain. And to the extent that I think the State Supreme Court is wrong
on the issue, with regard to whether or not you use up your peremptory
Page 112.
challenges, that is the only reason I stated to preserve
it as an issue, Your Honor.
I would like to direct the Court's attention with regard
to the examination of Veronica Jones. If the Court recalls, Veronica Jones
was an associate of Cynthia White. She was a street-walker, a
prostitute.
We had a statement given to us during the time, and all
the other statements that were given to us by the District Attorney, that
said, among other things, that Veronica Jones was in a position to observe
some of the activities that took place at the scene of the shooting.
She said, among other things, that she saw some people
run from the scene and she gave some descriptions, the specifics of which
aren't important at this point. Nevertheless, I never talked to her and
she got on the stand and began to contradict those things that were in the
statement. I claimed surprise, as the law requires. I don't think there
was vary much argument by the Commonwealth, and indeed Your Honor declared
her a surprise witness which allowed me to cross-examine her.
Page 113.
Cross-examination provided me with a situation or a story
where she contradicted her position. She contradicted what she saw on the
scene and things of that sort. Your Honor told me that I could
cross-examine her with regard to what she was saying on the stand as
opposed to what was in the statement.
What I suggested to the Court at that time, as well as
what I am suggesting to the Court now, and I think page 139 of the notes
of testimony on June 29th goes to what she was saying -- that once I claim
she is declared a surprise witness, and once I am permitted to
cross-examine her, I should also be allowed to cross-examine why she
changed her story.
Your Honor refused me the right to go into her bias or
her motive for changing her story. To some extent, she gave us an
indication of why she changed her story, or surely that would be our
argument, where she says on the record that a officer said, "If you back
up Cynthia, we will allow you to work just like her." I think she used
another name, "If you back up Cynthia, we will allow you to
Page 114.
work the street just like Lucky is working the street."
But we do know, from what she said, that the police were allowing her to
work the street.
Now, Veronica Jones said that. I know counsel for the
Commonwealth objected but, nevertheless, the words were spoken. But Your
Honor said that I couldn't get into that, that I couldn't cross-examine
her on her motivation. It seems to me that that is the very essence of her
testimony.
If you have a witness who says one thing to the police
and then they come in and say something else, I can find out, "Yes, I said
day was night yesterday, and I am saying night is day today." I should be
allowed to find out why she changed her testimony.
Your Honor said that I could not do that but, I think,
more importantly, Your Honor, it is not only permissive but required. If I
am suggesting there is a prior inconsistent statement, I am not only
permitted but required to show there was indeed a prior inconsistent
statement.
I requested that the police officers who took the
statement be placed on the stand so that I
Page 115.
could establish that in fact she gave the statement. Your
Honor ruled that I could not bring those police officers in.
THE COURT: Yes, because the law is that those prior
statements are not substantive evidence. The only thing you can use them
for is to show that the witness is not to be believed. That is the only
purpose for which you can use them. But you can't bring a detective in to
say that she gave us the statement, as if they were true.
MR. JACKSON: I understand that. We understand the Waller
case--
THE COURT: She admitted that she signed the statement.
She didn't deny that.
MR. JACKSON: Your Honor, that is the point. She said that
she signed her name one time. We had perhaps six sheets of paper, where I
asked her significantly, "Is that your signature?" "Yes." "Is that your
signature?" "Yes. " But she said, "I only signed the one time."
THE COURT: She could have made a mistake. She thought she
signed it once but she signed it
Page 116.
more.
MR. JACKSON: Your Honor, I am saying that those police
officers would not be placed on the stand to provide substantive evidence
of that statement being true but to prove, in fact, that there was another
statement.
I have not had the opportunity to show that there was, in
fact, another statement. As far as the jury was concerned, I was holding
up a blank piece of paper. I have to be allowed to show that there was a
prior inconsistent statement through the police officers, because she said
that she didn't say it. So where is the prior inconsistent statement, if I
can't show it through the police officers?
Your Honor denied me the right to bring in the police
officers. I can't testify, Your Honor; all I can do is bring the police
officers in and ask them if she said X, Y, or Z.
When Your Honor denied me the right to put the police
officers on the stand to say she said X, Y, or Z, I have no prior
inconsistent statement. I have only what she said on the statement.
Page 117.
THE COURT: The police officers can't testify as to what
she said.
MR. JACKSON: As to the statement?
THE COURT: That's right.
MR. JACKSON: We do it all the time. He took a statement.
"Did you take a statement of Veronica Jones?" And the reason that she is
called as a witness, Your Honor --
THE COURT: To say that, but there was no dispute as to
whether that was her statement. Sure, it was her statement. She is now
refuting that.
MR. JACKSON: We know that, because you had to make a
ruling on my motion of her being a surprise witness. But what I am saying,
as far as the jury is concerned, there is no prior inconsistent statement
that the jury knows about.
THE COURT: You asked her the question.
MR. JACKSON: I simply said, did you say so and so to the
police.
THE COURT: That's right. So they knew that she had made a
statement by your question.
Page 118.
MR. JACKSON: Your Honor, I could have been reading from
something that I typed.
THE COURT: You could have been reading from anything, but
they knew if I allowed it in this courtroom, that it was a statement she
had previously made.
MR. JACKSON: Your Honor, I don't think we can presuppose
that.
Your Honor, the point is, I don't believe that it is a
matter of the Court's discretion. The law requires that if you are going
to claim surprise and should there be a prior inconsistent statement, that
you prove there is a prior inconsistent statement.
THE COURT: That is the reason for the surprise and that
is why I allowed you to cross-examine her.
MR. JACKSON: But I didn't prove it.
THE COURT: You were trying to use that statement as
substantive evidence. You can't do that.
It is true under the Waller decision, that was the
decision for awhile. The Supreme Court has said no, you cannot use it. It
is
Page 119.
not substantive evidence.
MR. JACKSON: Your Honor, I did not want to do that.
THE COURT: That was the whole point.
MR. JACKSON: No, sir.
THE COURT: Why would you do it?
MR. JACKSON: To show her reason for changing her
story.
THE COURT: Because that prior statement was the
truth?
MR. JACKSON: No, sir. It didn't matter what the truth
was?
THE COURT: Sure, it does.
MR. JACKSON: Your Honor, the point is, I realize that I
am not going to use the statement as substantive evidence. I called the
witness because I can't use the statement, and then she says something
else. At that point, I didn't care whether what she said on the stand is
true or what she said in the statement is true, but only to bring out the
fact that she was motivated to change her testimony.
THE COURT: You said it came out that the police officers
said to her, "We are going
Page 120.
to let you work the street." The jury heard it.
MR. JACKSON: I have never had the opportunity to prove to
the jury that, in fact, she made the statement.
THE COURT: Because the statement itself was not
admissible as substantive evidence.
MR. JACKSON: It wasn't being offered as substantive. It
was offered as a prior inconsistent statement, Your Honor. I could not
offer it as a prior inconsistent statement, until I bring the police
officers in.
THE COURT: No, that is not true.
MR. JACKSON: That is the law. The law, as I understand,
requires you to prove a prior inconsistent statement by that person or
persons who took the statement in the first place; otherwise, Your Honor,
I could have written the statement myself and said, "Didn't you tell that
to the police?" So the law requires me to bring in the police
officers.
Your Honor differs with me on the law, but I suggest to
the Court that that is in fact the law, that it requires me to bring in
the police officers to determine whether, in fact,
Page 121.
she made the statement.
MR. MC GILL: Your Honor, very briefly, I think it should
be remembered that that was not a Commonwealth witness. This was a defense
witness that was called.
Now, the Court permitted surprise and cross-examination.
The Court also, of course, permitted questioning which brought out a
statement which was based on no statement at all about the police allowing
Lucky or somebody like that to work the street.
We are obviously implying that there was some sort of
bias or some sort of benefit in order to get testimony. This was brought
out but nowhere in any record does any kind of statement like that exist.
We have a situation really where counsel is placing a witness on the stand
and, for whatever reason, this witness then comes out with things, many
things which hurt the Commonwealth's position. Obviously testifying that
there was some motive for one of our witnesses, who was one of our primary
witnesses, really hurt the Commonwealth's position, if believed.
Page 122.
Defense counsel was permitted cross-examination as well
as I was permitted cross-examination. The degree of cross-examination is
within the discretion of the Court. It is clear from the record and my
recollection of the testimony that the cross-examination of his own
witnesses by Mr. Jackson, as well as his own statements, and my
cross-examination essentially showed the lack of credibility in that
individual.
Now, whether or not one would be able to use some prior
statements, to one extent he did by saying, "Didn't you sign something?"
"No, I just signed one time or something," he was in the position of
offering a witness who hurt the Commonwealth and wanted to cross-examine
the witness by getting some sort of testimony in that, in its own right,
again wouldn't even marginally assist the defendant if it were permitted
in because again, she didn't really see anything of significance that
occurred.
But no matter what that was, Your Honor has the ability
to limit cross-examination.
Page 123.
Certainly through both direct and cross, as well as my
own cross of that witness, showed her lack of credibility, I would
suggest.
I would suggest to the Court that it is within Your
Honor's discretion in limiting examination by counsel of his own witness
on cross-examination. I think the end result did occur; she was shown to
be incredible.
If this is what he wanted, it was done. Whether he wanted
to compound it by trying to present evidence, which may have been in the
guise of impeachable testimony, which could actually be viewed as
substantive, rather than have that confusion occur, Your Honor allowed the
cross-examination to rest on what it was that rendered her incredible.
MR. JACKSON: Your Honor, I now direct your attention to
what I consider to be the error of the Court in allowing Mr. McGill to
cross-examine the character witnesses presented by the defense.
There are several grounds, Your Honor.
Page 124.
The first, and without extensive argument, would be the
fact that he exceeded the scope of direct examination with regard to the
character witnesses. I think that that in and of itself would be enough.
But, Your Honor, specifically, and I have them listed in the memorandum,
starting with Sonia Sanchez:
Sonia Sanchez testified as any character witness would
when you ask them the questions that you ask on direct examination. After
that, Mr. McGill began to ask a litany of questions and I am suggesting to
the Court that they were improper.
Mr. McGill attacked, in fact, the character of the
witness herself. He questioned her about her writings, about her
sympathies toward other persons. He questioned her about subject matters
which were perhaps similar to those subject matters that were within this
trial. So, clearly, it was beyond the scope of direct examination.
But, beyond that, as the Court, in United States versus
Jubert, said, "Since the questions called not for evidence of the
defendant's reputation but for the witness'
Page 125.
opinion, it could not have elicited proper character
evidence, and the Court was right to exclude it." The Court, in this case,
excluded the evidence of the witness' opinion.
What are character witnesses offered for? We know that in
the law that is a misnomer; character witnesses are reputation witnesses.
Character witnesses come in to attest to the reputation of a defendant.
They are not permitted to give their opinion of the defendant, because
that is not the question. It is what is his reputation.
So that when Mr. McGill asked whether or not this witness
wrote the foreword in someone else's book dealing with Joanne Chesimard,
when this witness is asked whether or not she has written sympathetic
treatises on other persons in this country, that has nothing to do with
Mr. Jamal.
Whether the character witness in her opinion feels that
Mr. Jamal is a good person, a bad person or whatever, is not at all
relevant or permissive. The question for that character witness and for
all character witnesses is what
Page 126.
is the reputation that you know of from the people that
you know who know him, simply and solely.
Again, your Honor knows that in the State of
Pennsylvania, if the Commonwealth wishes to attack the reputation of a
defendant, the Commonwealth can present contra reputation witnesses,
because it is only the reputation of the defendant and not the opinion of
the witness.
Counsel was permitted to ask Sonia Sanchez almost
anything that he wanted to. They certainly elicited, at best, her opinion.
They were not relevant to the defendant's reputation. That is what was
presented. He asked about specific writings, specific individuals.
He asked about Joanne Chesimard. He asked about three or
four other specific people. He named those specific acts, those specific
persons, of the character witness, Sonia Sanchez, who we knew were not at
all relevant to this
Page 127.
trial.
In the State Supreme Court, the United States Supreme
Court, in dealing with the issue of character witnesses, it says
consistently, unequivocally, it is the reputation of the defendant that is
at issue, not the reputation of the witness, nor the character of the
witness that is at issue. And you are not ever, ever to question about
specific acts.
I can only refer you to the record of the character
witnesses to show you the length and breadth of the questions permitted by
Mr. McGill, and I am suggesting to the Court that that was improper.
So that I can complete all of the character witnesses, we
also had a character witness, Allen Lawson, a Del Jones, and John Skief.
Essentially, Your Honor, these witnesses, again, testified as most
typically character witnesses would do, and I would like to run through
the questions to frame the questions:
"Do you know Mr. Jamal?
"How long have you known him?"
"How was it that you come to know him?"
Page 128.
"Do you know people who know him?"
"Among those people that you know that know him, what is
his reputation?"
We got various answers, "excellent, fine, good,"
whatever.
Mr. McGill's cross-examination:
"What is your definition of law-abiding?"
That requires an opinion of that witness. If that
witness, as an example, says, "I think a law-abiding citizen is one who
shoots all short people," that may be that witness' opinion. That is the
witness' definition, but that has nothing to do with the reputation that
he is testifying about.
Your Honor, just to close with regard to character
witnesses, I would only point out, and again, the memorandum cites a
number of cases, but I would just like to extract a few phrases from some
of those cases:
In Michaelson versus United State, 335 U.S. 469, "The
character reputation and proclivities of a character witness are not at
issue, but rather the reputation of the defendant."
There is another case that also confirms
Page 129.
that case: United States versus Bright, 588 F2d 504; it
is a 5th Circuit opinion in 1979.
I have selected these character witnesses only, and there
are five character witnesses. I am suggesting to the Court that even if
the questions were asked of one witness, it would be error, not harmless
error but, in fact, constitutional error and thus reversible error.
It is not just a statutory requirement that the
prosecution is barred from inquiring as to specific acts, as to opinions,
but, indeed, the United States Supreme Court has said that, as a matter of
constitutional right, the Commonwealth or the state should not make those
inquiries with regard to a defendant.
Once the Commonwealth opens that door itself, it cannot
use that as a bootstrap argument and say that it is only exploring that
which the witness has then responded. Because it is the Commonwealth in
each and every instance that I have presented to the Court, with regard to
these character witnesses, the Commonwealth exceeded the scope of
direct
Page 130.
examination and then went on to explore specific acts and
opinions of the witness. That is the specific scope of examination that
the Courts have consistently ruled against and said that that, in fact,
was not at all permissible.
With that, I conclude with the character witnesses, Your
Honor.
MR. MC GILL: Your Honor, in reference to the character
witness' testimony, I will start from the back part, where you have an
individual who testifies to the character of another. You specifically are
asking the question: What is his reputation for being peaceful and
law-abiding?
Just assuming that that was the only question asked, and
then the individual says, good or great, or wonderful, whatever that is;
that is fine. But if the individual goes on and says other things, it is
going to open up various doors.
Certainly, if someone who is testifying in English and in
response to a question, what is the reputation of this individual as to
being a peaceful and law-abiding citizen, even
Page 131.
though the response of a hearsay response from other
people in a community or people that the individual knows or hears about,
a jury should certainly be apprised of that individual's knowledge of what
she or he is responding to. The question was: What is his reputation for
being peaceful and law-abiding?
Obviously, it is not improper for a jury to find out what
this individual means as to "law-abiding," because he or she is responding
to a question of what is his reputation for that. If anything, it goes to
the competence of the character witness to testify as to what he or she
heard.
For example, and I am using a ridiculous situation, but
to try to prove the point: If he or she heard that Mr. Jamal happens to
like standard poodles, and her response is, from, what is his reputation
for being peaceful and law-abiding, and she says wonderful, great; it is
terrific. Maybe to that individual law-abiding means that he likes
animals, for that matter. We don't know.
But, certainly, it is not incorrect to
Page 132.
try to go into the knowledge and the competence of that
witness to respond to the exact question that is asked. It is not asking
her for specific incidents. It is asking her for her very competence in
using her understanding of the word "law-abiding". We at least are allowed
to go to that degree.
Your Honor, in reference to Allen Lawson, a character
witness who was cross-examined about his criminal record, the only crimes
that were used were crimen falsi crimes. Certainly, it is appropriate that
he be examined on crimen falsi crimes because that goes to his credibility
of his saying, "This is what I heard." So that would be appropriate under
the law.
Lastly, in reference to Ms. Sanchez, MS. Sanchez said a
great deal on her direct testimony as well as her redirect testimony, and
Ms. Sanchez's individual character at no time was attacked. But Ms.
Sanchez's potential bias, which is an appropriate cross-examination area,
was approached.
For example, if an individual was asked
Page 133.
on cross-examination, in reference to her being a
character witness: "Have you been a character witness for about 150
defendants in the last year? Don't you, as a matter of course, go into the
prisons as a character witness?" That would be an appropriate question on
cross-examination because it goes to bias. Bias is always a legitimate
cross-examination tool.
Ms. Sanchez is obviously a dedicated individual who is
very forceful and definite in her opinions and writes according to her own
opinions about individuals. The fact that she, on cross-examination, was
asked questions concerning her writings in reference to individuals who
are charged, who were charged with crimes involving the shooting of police
or just crimes generally, was offered, as said at side bar, for the sole
purpose of bias.
As a matter of fact, with the examination on direct by
Mr. Jackson, as well as the redirect examination by Mr. Jackson, such an
opened door, which I provided through a bias, enabled Ms. Sanchez to go
into, to some degree, about her writings, what she believes,
Page 134.
and how she believes that people are mistreated, and that
she is against the brutality or any kind of abuse whatsoever.
So, if anything, in questioning her bias in writing a
foreword to a book which was about an individual, an escaped murderess,
who was convicted of killing a police officer, simply, if anything, it
added to her position or her opportunity to say what she believed,
obviously, with the implication that this man perhaps was in some way
unjustly handled or treated, which was irrelevant to her initial
testimony.
But, even assuming that it was not helpful to Mr. Jamal
in what appeared to be his defense, at least bias is an appropriate area
to go through and that was the limited area in which I did enter. When she
opened up other areas on redirect, they were pursued to some degree.
However, the bias was the primary area, about that foreword, that
writing.
MR. JACKSON: your Honor, again, in rebuttal, I can only
say that, again, the opinion of the witness of what law-abiding means is
irrelevant. If, in fact, assuming arguendo
Page 135.
that you could ask for a definition of law-abiding, the
witness should have been inquired: "What do those people that you know who
know Mr. Jamal, what do they mean by law-abiding," because what the
witness thinks is irrelevant.
Your Honor understands that we are not asking the witness
what is your feelings, what is your attitude towards Mr. Jamal. So how can
you then say, well, we still need to know what that witness' definition of
law-abiding is. It doesn't mean anything. It doesn't mean anything at all,
because that is not the inquiry.
Specifically, with regard to Sonia Sanchez, Your Honor, I
want to read the direct examination of Sonia Sanchez completely.
THE COURT: I have already read that.
MR. JACKSON: Your Honor, it is just a half-page.
THE COURT: I have already read that.
MR. JACKSON: Fine. You understand then, Your Honor, the
only things that I asked her were the standard questions: "Do you know
people that know him? Among those people that you know
Page 136.
who know him, what is his reputation?" That was it,
period. Closed.
It is Mr. McGill that opened the page. I asked her less
than a full page of questioning on direct examination. Mr. McGill then
asked her questions for another number of pages. I am not going to go into
the specifics of it. So if anyone opened it up, it was certainly Mr.
McGill, and I will leave that to rest, Your Honor.
The next issue, Your Honor, would be the prosecutorial
misconduct, and I have elicited two issues with regard to prosecutorial
misconduct. The first issue deals with an unfair comment on Mr. Jamal's
right, number one, not to take the stand. And, of course, he has no burden
whatsoever to present anything at trial.
During Mr. McGill's closing argument, and I direct you to
page 171, his closing argument on July lst, Mr. McGill said, and I quote:
"And although they have no burden to do anything of all that they had, all
that was presented to them over that period of time,
Page 137.
you saw what the defense put on," close quotes.
Before making that comment, Mr. McGill began to talk
about those same statements that he mentioned earlier. We had 100-odd
statements from witnesses and then we got more statements from the Police
Department's internal investigation and we had forensic studies. We had
all kinds of reports, this, that, and the other.
Mr. McGill correctly pointed out to the jury that Mr.
Jamal has no burden whatsoever of presenting any evidence. But what he
then did, was to say, well, he has that right but I am going to comment on
it. And he says, well, they got a lot of things, but all they presented
was thus and such. I am suggesting to the Court that that is certainly
unfair comment.
You can't say that he has a right not to do something and
because he chooses not to exercise that right in the way that he sees fit,
then there ought to be something wrong with it. What it suggests to the
jury is that with all of those statements that were given to him, why
didn't he put everything on?
Page 138.
Now, of course, I made that argument, in summation, that
the Commonwealth didn't present all of its evidence, but I am permitted to
do that. It is not the rights of the state that is being protected; it is
the rights of the defendant. When Mr. McGill makes that comment, he then
makes an unfair comment of Mr. Jamal's rights.
I don't think it is necessary for me to go on, because it
is just that one instance where he makes that comment. I objected during
the time of Mr. McGill's comments with regard to that. In fact, it
appeared that he was about to say more, and I think that my objection was
indeed timely at that time.
If you don't mind, I will go on with the other
prosecutorial misconduct. The other issue had to deal with Priscilla
Durham, in Mr. McGill's closing argument, again on page 173, July 1, 1982.
Mr. McGill says: Priscilla Durham. "Present was also LeGrande as he comes
in and makes that statement," close quotes.
The statement of James LeGrande was never offered into
evidence, and Mr. LeGrande
Page 139.
never testified at this trial at all. He never testified
in any trial as far as I know. But, certainly, for the Commonwealth to
deliberately misstate what the evidence is, to deliberately mislead the
jury as to what the facts are is certainly prosecutorial misconduct.
MR. MC GILL: Your Honor, in reference to that first
comment, there are two comments on page 17 of the brief that Mr. Jackson
alluded to. I think Your Honor has them.
THE COURT: Yes, I have them.
MR. MC GILL: In reference to the first comment, on page
171, I believe, with the Court's permission, I would like to read that
paragraph, followed by another paragraph on the next page which will
explain, I think, clearly what the Commonwealth's intent was in the
summation. This is after a rather lengthy summation:
"Ladies and gentlemen, the reason he was arrested, the
reason he is prosecuted, the reason why you sit there as a finder of fact
in this is a culmination of the investigation of what you saw.
"And although they have no burden to do
Page 140.
anything, of all that they had, of all that was presented
to them over that period of time, you saw what the defense put on, and
they don't have any burden. That is true.
"But -- then there is an objection. Then I go on -- are
they suggesting that there was a third man, a fourth man or is he doing
this all for his brother? I ask you to look through all of this as well as
any other strategy or tactics you have seen during the course of this
whole particular trial and recognize it for what it is. You make the
decision."
Now, from that, Your Honor, it is clear, the focus and
sometimes a sentence taken out of context may possibly mislead in reading.
The defense was a few things, as I recall it. The defense was one really
of reasonable doubt on the Commonwealth's case, with the thought that, A,
it was probable or reasonable to suggest that a third person or possibly
even a fourth person with another had performed this act.
Also, there was a hint both in summation as well as some
part of the evidence by inference by counsel that perhaps his brother may
have
Page 141.
been in some way involved and he was being the hero in
protecting his brother. This, one could possibly glean from the summation
of Mr. Jackson as well as the defense evidence, and as well as the
extensive cross-examination by Mr. Jackson.
It is clear from the record, even from Mr. Jamal's
comments, that he was here to be found not guilty. There was no way that
he would compromise for any other verdict. It was not guilty or nothing;
all or nothing, clearly was his approach at trial as, of course, it may
very well have been his approach during his life.
However, as one can see then, the importance for me as
the prosecutor presenting the evidence and arguing to this jury was to
attempt to undercut the defense, which not only was limited to the
cross-examination extensively of Commonwealth witnesses but it was the
introduction of defense witnesses, not the character witnesses, but the
actual fact defense witnesses, a number of them for the purposes to
indicate that there was this other
Page 142.
person. One witness referred to him as a Jamaican with a
hair style similar to the defendant's.
It was clear where the defense was going. So the focus of
these comments to the jury that I again said, you are the finder of fact,
was to say that with the evidence that you have heard and, clearly, the
defense that you have heard through the evidence and argument by Mr.
Jackson, let us focus in on what they are really saying in the defense to
see whether you will accept it.
You have heard all of the Commonwealth's evidence. You
have heard all of that. And I even added it twice in the record to them,
in literally taking away the Court's function just for that second. But
that is the reason I said it twice in that paragraph to be sure that the
jury knew that he had no burden whatsoever to do anything. So I repeated
it in that same paragraph, that same seven or eight lines.
By saying it, the purpose was to show them, focus in on
the defense, to see if it is credible and leaving it, of course, up to
them
Page 143.
to make that decision. That is the meaning of those
words, not taken out of context but in context with the paragraph before,
the paragraph where it is included, and the last paragraph.
Certainly, not any comment on his burden, but rather a
question posed to the jury to take a look at what the defense presented
and what we presented and you decide, based on the credibility of what you
see, who to believe. That was the meaning, I believe, the reasonable
interpretation and certainly, the intent of my words.
In reference to the last argument, on page 173, Your
Honor, it does state -- I am trying to find out where it is, Judge.
THE COURT: You said page 173.
MR, MC GILL: Yes, I was looking at page 174. I am getting
tired, I guess.
Page 173, yes. At the beginning of page 173, I state that
Priscilla Durham present -- no, no.
In talking about the evidence, the evidence is manifold,
whether it be photographs. We have shown charts, statements made right
after
Page 144.
the fact by individuals who have nothing to gain and not
even involved with the police department.
Priscilla Durham. Present was also LeGrande as he comes
in and makes that statement. Now, first of all, it is clear from that that
I am talking about as he comes in and makes that statement, I am referring
to the defendant. I don't think there is any contention that I am
referring to anybody else.
MR. JACKSON: I am sorry; I didn't hear you.
MR. MC GILL: When I am saying, "Present was also LeGrande
as he comes in and makes that statement," I am referring to the defendant
as coming in and making that statement, not to anyone else. This is
preceded by comments and also succeeded by comments referring to what the
statement was. On page 174, the statement is clearly reiterated as to what
the statement was. His point is that in mentioning another individual: "I
state that Priscilla Durham was there. Present was also LeGrande."
Your Honor, in fact, I am not really
Page 145.
sure, and I would have to take a look at the notes of
testimony, whether or not Priscilla Durham said that James LeGrande was
present or in the general area. She may have said that in her testimony.
It is true that Mr. LeGrande was available and I did attempt to get his
testimony in, and Your Honor ruled against it. It does not state here that
Mr. LeGrande heard anything. It says, "was present."
As a matter of fact, there were a number of people
present, also; Gary Bell, who did hear things and other officers who did
not hear things, depending on where they stood or what was occurring. So
the fact that there is a statement that an individual was there present,
that alone is quite harmless, even if it is not a matter of record.
Since I just got the brief today, I didn't have a chance
to take a look at Priscilla Durham's testimony. It may well be in there
that he was present or through some other witness anyway; however,
assuming that it is not, I submit to the Court that it is harmless because
it does not say that he said or heard anything.
Page 146.
It just said, "LeGrande present." That is a word coming
out. They don't know what that is but they do know what Priscilla Durham,
who did testify, said.
You do recall, Your Honor, that you had two witnesses
testify to hearing that statement. If you take those two witnesses that
heard the statement, and you take a simple one sentence where it only says
that another individual was present, even if it was inaccurate, it is
hardly the type of error that would in any way deprive an individual of a
fair trial, because it doesn't say that he heard anything. If anything, it
is innocuous. He was there. What does that mean?
No reasonable jury could really think that that meant
anything else. And even if they did, they had two other witnesses that
heard it anyway. So I would state to the Court that it was harmless, if
inaccurate.
MR. JACKSON: Just briefly to rebut, Your Honor. The
reason it is offered, LeGrande is offered, is to corroborate the testimony
of Priscilla Durham.
If it is harmless, then why even do it
Page 147.
in the first place? It is obviously directed to support
the statement of Priscilla Durham. Mr. McGill suggests that all he is
saying is that he was present, because he is explaining to us now what he
really meant when he said, he makes the statement.
But in reading and what I heard, and I certainly made an
objection at the time the argument was made, and when I read it again, it
still sounds like, when he says he makes the statement, it sounds like he
is referring to LeGrande.
MR. MC GILL: Your Honor, if that is the case, it has no
meaning at all. Because if I am, as a prosecutor, suggesting that some guy
named LeGrande came in and made a statement, maybe the jury can say that
he made the statement and Jamal didn't make the statement. So, if
anything, that would help him out.
MR. JACKSON: Your Honor, I don't know how to respond to
it because I didn't quite understand that.
Your Honor, in summary fashion, before I get to the death
penalty, I would also offer
Page 148.
without argument that the verdict is contrary to the
evidence, that the verdict is contrary to the weight of the evidence and
the verdict is contrary to the law, as I have indicated before.
I would like to address now the death penalty itself,
your Honor. This is the death penalty, of course, of September 13, 1978. I
am suggesting, number one, that the death penalty is unconstitutional, in
that it requires a standard less weighing of aggravated circumstances as
against mitigating circumstances in that such weighing process, A, it is
too vague to be constitutionally valid; B, the defendant has no burden of
proof and, C, it forced upon the defendant the risk of non-persuasion.
What am I saying by all of that? The act itself suggests
that the jury, once a conviction of murder one is imposed, the jury is
then to deliberate, whether or not the Commonwealth has presented
aggravating circumstances beyond a reasonable doubt, or whether it finds
aggravating circumstances beyond a
Page 149.
reasonable doubt. Then it must also determine whether or
not mitigating circumstances have been presented by a preponderance of the
evidence.
Certainly, those of us who are trained in the law know
very quickly and very easily what the difference between beyond a
reasonable doubt and preponderance of the evidence, what that distinction
is. I am suggesting to the Court that the jury was never given any
indication of what preponderance of the evidence is.
THE COURT: Yes, it was.
MR. JACKSON: Your Honor, I understand that a definition
was given. What I am saying is that no standard as distinguished to
reasonable doubt -- let me back up, beyond a reasonable doubt. The
standard was given for that, of course, when we had to determine guilt.
Once we get to the sentencing phase, it is given again, reasonable doubt
as well as preponderance of the evidence.
What I am saying is, the jury then doesn't know how to
weigh preponderance of the
Page 150.
evidence against beyond a reasonable doubt.
THE COURT: They had already been instructed on what
reasonable doubt is. And they have been instructed that that is the
Commonwealth's burden in proving aggravating circumstances.
MR. JACKSON: Yes, sir.
THE COURT: They were also instructed as to preponderance
of the evidence, what that meant.
MR. JACKSON: Yes, sir.
THE COURT: And they also had the mitigating evidence as
you gentlemen argued it to them.
MR. JACKSON: Yes, sir.
THE COURT: There is nothing wrong with that.
MR. JACKSON: I think so, Your Honor.
THE COURT: If what your argument is, is that there is no
way to determine, having weighed aggravating against mitigating, that is a
different factor.
MR. JACKSON: That is what I am arguing.
THE COURT: But the definition was given.
Page 151.
In this case, they found that the aggravating factor was
the killing of the policeman. The mitigating factor was that the defendant
had no substantial history in his background. Now, they have to take those
two and weight them to see whether or not killing a policeman outweighs
the fact that someone has a good background.
MR. JACKSON: Yes, sir.
THE COURT: And that is what they did.
MR. JACKSON: Yes, sir. My point is how do they do that?
You just tell them, "You weigh it." There has to be a standard.
THE COURT: It doesn't have to be a standard. They sat as
a jury. They say to themselves, "We found him guilty of killing a
policeman. We also know that he has a good background. We have to weigh
that. Does his background outweigh the fact that he killed a
policeman?"
MR JACKSON: In all due respects, there wasn't just one
mitigating --
THE COURT: That is all it was.
Page 152.
MR. JACKSON: No, Your Honor.
THE COURT: I have a copy of it here.
MR. JACKSON: That is not the only one I argued, sir.
THE COURT: You might not have argued it. I am talking
about what they found. This is what the jury found on their sentencing
report. They found those two factors, one aggravating and one mitigating.
And now they have to weigh them, all twelve of them have to weigh it.
I know that that is the argument that Justice Nix has
about it. He doesn't think that it is a proper thing, and that is okay. It
has been already upheld by the Supreme Court.
MR. JACKSON: By the State Supreme Court in that
particular factual situation, I would agree.
Your Honor, to the extent that I disagree with the State
Supreme Court on that issue and agree with Justice Nix, and I am sure that
the issue will be eventually taken to the United States Supreme Court,
because there was a similar Statute in Florida, I believe, that
Page 153.
is going to go to the United States Supreme Court. But,
again, it is the very issue that I am arguing now that is presented in the
memorandum, that Justice Nix has already agreed with and I think the --
excuse me one moment. No, it is the New Mexico statute. I said Florida.
Forgive me. It is the New Mexico statute, which is very similar to that in
Pennsylvania, with regard to what I called the standard less weighing
process.
It is not a novel argument and Your Honor is well
familiar with it. And I am suggesting to the Court that if, in fact, the
jury is to find, and that is what they are asked: If you find an
aggravating circumstance and a mitigating circumstance, you have to weigh
it. They don't tell you how to weigh it.
THE COURT: Well, the thing is, they can even find one
aggravating and two mitigating, and yet the jury can say, "This one
aggravating is so severe, it outweighs the two mitigating
circumstances."
MR. JACKSON: But, we don't tell them how to do that
weighing process.
Page 154.
THE COURT: There is no way to tell them, there is no way
in the world. I can't say to them, "If you find one aggravating and two
mitigating, the two mitigating outweigh the aggravating."
MR. JACKSON: Well, Your Honor, if we can't tell them,
then we ought not to let them make that decision. That is the point.
THE COURT: The Supreme Court has already ruled on that
and I am bound by their decision.
MR. JACKSON: Your Honor, that completes my argument.
THE COURT: Do you have anything on that?
MR. MC GILL: No, Your Honor. I rest on the decisions of
the Court.
THE COURT: Let me ask you one thing: Going back to your
bill that you submitted, did you submit a petition to Judge Ribner for
additional expenses for a pathologist?
MR. JACKSON: I did, yes, but I never used him. I think I
asked for a pathologist and an investigator, but he never approved the
Page 155.
increase. I submitted it, but he never approved it.
THE COURT: What did he do with it; do you know?
MR. JACKSON: He said, "Give it to Judge Sabo." But at
that point, it was too late.
I have the petitions back at the office. I asked him to
increase the amount that he would allow me, so that I could go and do it.
Then he said, "When you go to trial, ask Judge Sabo." I said, "It is too
late then." He said, "Well, I don't know what to do." So, in effect, it
just made the whole issue moot.
There were none other than that which I submitted, sir. I
think the one that he did increase was for Mr. Fashnecht (sic). I think he
increased Mr. Fashnecht's to maybe $600.00; I think, a total of maybe
$600.00 -- no, $350.00, I think. I don't have the petition with me, Your
Honor, but Mr. Fashnecht has given me a bill for $750.00. I think he
allowed $350.00.
THE COURT: As I understood it, he told you to file a
petition and he would rule on it.
MR. JACKSON: I filed it, for the increase.
Page 156.
And then he said to let the Trial Judge decide. Then he
gave me the standard story, "We only allowed so much because we don't have
any money, and there is nothing further that I can do."
I have a copy of the petition to increase. That is the
petition, the additional, because there was only one. I filed a series of
petitions for compensation for an investigator, the patho1ogist,
ballistician, and investigator.
Then when I ran into the problem, I then filed a petition
to increase. It may have been with some of them or all of them; I don't
recall specifically, but that is the one where he says, "That is all that
I can allow now, with the exception of Mr. Fashnecht."
THE COURT: He increased the ballistician?
MR. JACKSON: Yes, sir, that is the only one he did
increase.
THE COURT: But you only asked for $350.00 for him, and
you said he gave you $600.00.
MR. JACKSON: No, he only gave me $350.00. I made a
mistake when I said $600.00, sir. It was $350.00, because at that time I
thought that all I needed Mr. Fashnecht to do was to provide
Page 157.
some information, but he did something more, sir.
THE COURT: Your fee petition is a little confusing
because you don't conclude in that one spot. You have Keystone --
MR. JACKSON: That is Fashnecht. Keystone is
Fashnecht.
THE COURT: He is the ballistician?
MR. JACKSON: Yes, he is the ballistician.
THE COURT: A11 right, I had the benefit of your brief all
day today, and since I was in Chambers I had an opportunity to go over it
pretty thoroughly.
In my opinion, the rulings that I made at the time of
this trial were correct at that time and I think they are still correct.
The motions for a new trial and arrest of judgment are denied.
MR. JACKSON: Very well, sir.
MR. MC GILL: Your Honor, the Commonwealth moves for
sentencing.
THE COURT: Gentlemen, I will give you the pre sentence
reports that I have and the
Page 158.
psychiatric, but I don't think it is going to be any good
because both of them indicate that the defendant wouldn't cooperate with
them. So they don't really have anything in it.
MR. JACKSON: Yes, sir.
MR. MC GILL: I am not sure I understand.
THE COURT: The psychiatrist indicated that the defendant
would not cooperate with him. If you want to see them, I can let you see
them.
MR. MC GILL: No, whatever Your Honor says. Is that both
the pre sentence investigation and --
THE COURT: The pre sentence said the same thing, so that
they really don't have anything. I have them here, but they don't really
say anything.
MR. MC GILL: Could Your Honor at least make them a matter
of record, so it can be shown that they were at least attempted to be
done, according to the rules.
THE COURT: Yes, but he would not cooperate with them.
Page 159.
MR. JACKSON: Very well. I have no objection to moving to
sentencing, Your Honor.
THE COURT: Is there anything to be said about
sentencing?
MR. JACKSON: I have no argument, Your Honor.
THE COURT: All right.
Mr. Wesley Cook --
MR. MC GILL: I would suggest to the Court -- excuse
me.
First of all, I would certainly state that the
Commonwealth's position in this case is that we would -- may I state our
position at sentencing?
THE COURT: He hasn't said anything. Do you have anything
to say to this?
MR. JACKSON: No, I have nothing.
THE COURT: Mr. McGill.
MR. MC GILL: What I would like to do, Your Honor, is to
ask the Court if before sentencing, and perhaps the Court is going to do
it anyway, would you ask the defendant if he has anything to say.
THE COURT: He said he has nothing. I
Page 160.
am assuming then that Mr. Jackson has spoken to the
defendant, and he doesn't wish to say anything.
MR. JACKSON: I have not spoken to him, Your Honor.
THE COURT: Will you see if he has anything to say.
MR. JACKSON: Mr. Jamal, do you want to say anything?
There is no response, Your Honor.
THE COURT: I am assuming that if he didn't say anything
to the pre sentence investigator or to the psychiatrist, more than likely
he doesn't have anything to say to the Court either.
MR. MC GILL: Even if he does not stand or appear not to
listen, would Your Honor apprise him of his right to say something at this
time, that he has a right to say something to the Court at this time if he
wishes.
THE COURT: I assume that counsel has, but I will say it
once again.
Mr. Mumia Abu-Jamal, also known as Wesley Cook, before
this Court enters sentence
Page 161.
in this matter, you have an absolute right to say
whatever you want to say to the Court in this situation and, of course,
the defense attorney has the right to argue also, on the sentencing, if he
wishes.
MR. MC GILL: I will just state, for the record, Your
Honor, that I am standing beside Mr. Jackson and I have no problem at all
hearing what you are saying.
THE COURT: Do you have anything to say, Mr. Jackson, on
the sentencing?
MR. JACKSON: I have nothing to say, Your Honor. I have
made the argument with regard to the death penalty and my argument speaks
for itself. That is contained in the brief. With regard to the sentencing
on any other bills, I have no argument.
THE COURT: Mr. Mumia Abu-Jamal, do you have anything you
wish to say to the Court before the Court passes sentence?
THE DEFENDANT: I think that this motion for arrest of
judgment, motion for a new trial, the trial itself, and the motion
Page 162.
to suppress, has supported my argument from the first day
that I appeared before you, that your intention from day one was
execution. Your intention from day one was conviction. And this shyster to
the left of me has proven, numerous times, his inability, his incapability
of defending me.
I have demanded from day one the assistance of John
Africa. You have denied him. I have told you that I have no faith and no
trust in this man. I think, if anything, he has proven that. You have
defended him. Mr. McGill has defended him. It is very clear that you have
faith in him, because he is working for you. He is the same as the D.A.;
he is not working and has not worked for me.
For instance, I have had several days of this trial. I
have not seen the motions, motions of testimony, the notes of testimony. I
have not seen that motion he just filed before you, that motion for arrest
of judgment, and motion for --
THE COURT: That was a brief, he submitted.
Page 163.
THE DEFENDANT: That brief, whatever it is, I have not
seen it.
It is clear that Mr. Jackson is working for you, for the
Commonwealth, for the City of Philadelphia. He has never worked for me.
You have defended him because he has done your will, not mine.
This trial, from the very beginning, is a farce and a
sham. I told you what the outcome would be. I told the jury what the
outcome would be.
THE COURT: Is that it? All right.
Mr. Wesley Cook, also known as Mumia Abu-Jamal, the
sentence of the Court is that you, under Bill #1358, January Term of 1982,
in accordance with the jury's verdict of guilty of murder in the first
degree and the jury's further deliberation as to punishment, that the
sentence of death be imposed upon you.
And that being a mandatory sentence provided by law, it
is hereby ordered that you will hence be taken by the Sheriff of
Philadelphia County to the State Correctional Institution at Graterford
and thereafter in
Page 164.
due course to the State Correctional Institution at
Rockview, or any other state correctional institution or place designated
by law, and that you shall suffer death during that week affixed by the
Governor of the Commonwealth of Pennsylvania, in the building erected for
that purpose on land owned by the Commonwealth, and that the time, place,
and circumstances of your execution, in accordance with the law, shall be
in accordance with the Governor's warrant as prescribed by law.
That such punishment be inflicted by either the warden or
deputy warden at the State Correctional Institution at Rockview, or any
other state correctional institution prescribed or designated by law, and
that the execution be by such person as the warden of said institution
shall designate, by causing to pass through your body a current of
electricity of intensity sufficient to cause death and the application of
such current of electricity to be of such intensity and volume and of such
continuity that you are to expire or until you are dead. May God in His
Infinite Wisdom have mercy on your soul.
Page 165.
THE DEFENDANT: Long live John Africa.
I am going to tell you one thing: You have sentenced
yourself, just like Judge Malmed, just like Malcolm, just like Merna
Marshall, and every Judge who dares to sit up there and act like you got
some justice. You are wrong. You have just been sentenced to death. You
have just been convicted.
THE COURT: Under Bill #1357, January Term, 1982, you have
been found guilty of possession of an instrument of crime generally.
The Court sentences you to the State Correctional
Institution at Graterford for a period of no less than two and a half and
no more than five years, to run consecutive to Bill #1358.
In addition, the Court assesses a fine in the sum of
$10.00 for the Victims Compensation Fund.
The Court wishes to advise you that your death sentence
will automatically be appealed to the Pennsylvania Supreme Court. In due
course, you will be notified of the procedure to follow in order to have
the
Page 166.
sentence under Bill #1357, possession of an instrument of
crime generally, transferred to the Supreme Court.
In the event that you do not receive such a notice, the
Court wishes to advise you that you have 30 days within which to appeal to
the Superior Court on Bill #1357, January Term of 1982, dealing with the
conviction of possession of an instrument of crime generally.
Is there anything else, gentlemen?
The Court wishes to advise you that you have
Court-appointed counsel and, apparently, Court-appointed counsel will be
--
THE DEFENDANT: I do not have Court-appointed counsel. I
have a Court-appointed baboon.
THE COURT: -- necessary for your appeal.
THE DEFENDANT: Your Honor, I have a Court-appointed
shyster.
MR. MC GILL: You mentioned 30 days for appeal to the
Supreme Court too.
THE COURT: No, that is automatic on the death
sentence.
Page 167.
MR. MC GILL: All right, sir.
THE COURT: I am just concerned about #1357, the
possession of an instrument of Crime generally. But there is a procedure
in which counsel will receive notification. Once this matter hits the
Supreme Court, the Prothonotary of the Supreme Court will send you a
notice as to how that matter will be turned over to the Supreme Court, so
that they can both be decided on at the same time.
MR. JACKSON: Your Honor, to the extent that the Supreme
Court has dealt with the issue of my continued representation, it was my
understanding that my representation would be terminated at this stage,
since this was considered part of the trial stage and if, in fact, Mr.
Jamal wished another lawyer or wished to proceed himself, he would do that
at the termination or at the conclusion of the post-trial motions.
THE COURT: You have to file your petition before the
Supreme Court.
MR. JACKSON: It is just that I have never been appointed
to represent him during
Page 168.
the appeal, only at the trial stage.
THE COURT: If you look at your appointment sheet, you
will see that you are appointed all the way up to the Supreme Court.
MR. JACKSON: Very well, sir.
THE DEFENDANT: He can do as good as he has done, nothing.
Long live John Africa. On the move. Fuck you, Judge. Fuck you.
- - -
(MATTER CONCLUDED)
I hereby certify that the proceedings and evidence are
contained fully and accurately in the notes taken by me on the trial of
the above cause, and that this copy is a correct transcript of the
same.
Official Stenographer
The foregoing record of the proceedings upon the trial of
the above cause is hereby approved and directed to be filed.
Judge