Verfahren gegen Mumia Abu-Jamal

IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION

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Hearing on Motion for Recusal and Stay

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July 12, 1995
Courtroom 653, City Hall
Philadelphia, Pennsylvania

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BEFORE: THE HONORABLE ALBERT F. SABO, J.

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TRANSCRIBED BY: CHARLES M. GORGOL
Official Court Reporter of the Court of Common Pleas

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(At 10:2O a.m. the hearing was convened in the presence of the Court and the attorneys.)

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THE COURT: Good morning, everyone. Before we proceed I just want to remind everyone that this is a Court of law. We are not out on the street. This Court will not tolerate any outbursts. If that should occur, the Sheriffs are instructed to remove that person immediately and they will not be allowed back into the Courtroom. Everything must be proper and decorum must be maintained.

Counselors.

MR. WEINGLASS: Thank you, Your Honor. My name is Leonard Weinglass. I am one of the attorneys for the Petitioner Mumia Abu-Jamal.

This is a matter which belatedly came to our attention, which came to our attention this morning. I am serving the District Attorneys representing the District Attorney's Office of Philadelphia.

And that is the question, the preliminary question and the threshold question, of whether or not Your Honor has the

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jurisdiction or the jurisdictional capacity to sit on matters which are before the Court. In the papers we cite to the Court the fact that under Article 5, Section 16B of the Constitution of the State of Pennsylvania, all jurists of the Commonwealth are mandatorily retired at the age of 70. And as we indicate in Exhibit 7 attached to our petition, Your Honor has passed that date. I believe your date of birth is 1920 -- although the Court is free to correct me if I am in error.

THE COURT: I know my birthday.

MR. WEINGLASS: So the Court has been stripped by virtue of the Constitution of jurisdiction.

I also understand under Article 5, Section 16C the Supreme Court of Pennsylvania is empowered to restore temporarily, I emphasize the word temporarily, judicial authority to the Court by order of the Chief Justice of the Supreme Court.

It's my understanding -- and again I could be corrected by the Court -- that the Chief Justice of Pennsylvania restores temporary authority to this Court on a month-to-month

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basis and that an order has been signed for the month of July 1995. But in that order the Court is authorized in a limited capacity to only sit on those matters, quote, as directed. And principally to assist the Common Pleas Court of Philadelphia in reducing the backlog of both civil and criminal cases.

And so our first position on the jurisdictional issue is whether or not this Court has been directed as the Supreme Court order indicates to sit on this matter. And if the Court has not been so directed, the Court is without authority to sit on these proceedings.

MR. BURNS: Your Honor, do you wish us to address that threshold question now?

THE COURT: You might as well.

MR. BURNS: Thank you, Your Honor. Hugh Burns for the Commonwealth.

Your Honor, we just received this filing this minute. However, it is very similar to a filing which you reviewed in the Fahy case a couple of weeks ago and I prepared for you on that. And I am here today with Mr. Eisenberg, the Deputy of the Law Division, and Mr. Grant, the Chief of the Homicide Unit.

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As far as the order of the Supreme Court appointing you as a Senior Judge, as you know, it states, as Mr. Weinglass stated, that you are to serve as directed. That means, of course, as directed by Judge Bonavitacola. And there is an order attached to the defense filing which says very plainly that PCRAs are to be disposed of by the trial Judge. And in this case that's you.

By the way: That doesn't go to jurisdiction. Any Judge of the Common Pleas Court, as you are, has the same jurisdiction as any other Judge of the Court of Common Pleas Court. So this motion is frivolous.

Thank you, Your Honor.

MR. WEINGLASS: If I just may answer that. Counsel only read part of the order that governs the local proceedings here in Philadelphia. The rest of the order -- and I am reading from it -- provides, in the event the trial judge is no longer an active member of the judiciary, these matters will be assigned for disposition to other judges assigned to the homicide program at that time.

Your Honor, we feel that this Court is

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not an active member of the judiciary.

THE COURT: Do you mean --

MR. WEINGLASS: Temporary.

THE COURT: Do you mean I have been sitting as a Common Pleas Judge, I am not active?

MR. WEINGLASS: Well, I am not talking --

THE COURT: That is what you are saying.

MR. WEINGLASS: I am not talking about your physical movements, I am talking about your status in law. The Court has been stripped of the authority by --

THE COURT: No, because in the Fahy case, and I was a Senior Judge at the time, the Supreme Court sent the matter back to me to hear as the trial Judge. There's never been any change to that rule. I have all the powers of a Common Pleas Judge that I had before I was mandatorily retired. As long as I am certified by the Supreme Court to sit as a Common Pleas Judge, I have all the powers of a Common Pleas Judge.

The motion is denied, Counselor.

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MR. WEINGLASS: Your Honor, we will submit to the Court a written order denying that motion. And I would ask the Court to certify that issue so that it may be appealed.

THE COURT: I am not going to certify it. No. It will take it's due course.

MR. BURNS: For the record, we would object to certification in any case, Your Honor.

MR. WEINGLASS: Your Honor, so the record is clear: I would like to provide through the Court Crier a copy of the order which we would request the Court to sign, to enter in the record, giving a copy to the Commonwealth. And I understand the Court is refusing it, I just wanted it to be clear on the record.

(Handing) If that could be marked as an exhibit in this hearing, as Petitioner's Exhibit 1.

THE COURT: All right, that matter has been disposed of. What is next?

MR. WEINGLASS: Your Honor, before I begin the argument on the two issues that are before the Court, I would like to introduce as a courtesy to Counsel, Co-counsel, and to the

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court, my fellow Counsel seated here at the table.

Rachael Wolkenstein to my left, a member of the bar of New York.

Daniel R. Williams, a member of the bar of New York.

Steven Hawkins, a member of many bars.

THE COURT: Including Pennsylvania?

MR. WEINGLASS: He is not from Pennsylvania. No, I think he served his clerkship here in Philadelphia with the Federal Court of Appeals.

MR. HAWKINS: Yes.

THE COURT: Okay.

MR. WEINGLASS: And Paul Messing, who you know. And David Rudovsky the Court also knows, local counsel.

If the Court please: On June 5th, a little more than five weeks now ago, Mr. Jamal filed with this Court his first post-conviction relief application. Those documents included a very lengthy petition setting forth 19 separate grounds upon which a new trial should be granted, attaching 47 exhibits and 13 affidavits. This petition was accompanied by a

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memorandum of law, also rather lengthy, specifying the issues of law pertaining to the 19 grounds he alleges as a basis for getting a new trial.

In addition, a motion was filed for discovery, a very lengthy motion because ample discovery is necessary under the circumstances and allowed for under the relative provisions of the post-conviction statute. And a motion for recusal. These documents, some 500 pages in length, which the District Attorney's Office referred to as a telephone directory in terms of it's volume and scope, has been lodged with the Court now for over one month. As I understand it, initially the Court or whoever assigns these matters set this case down to be argued on July 24th. We objected to that as being too long a passage of time because a warrant was signed on June 1st and the execution date is set for August 17th. And pursuant to our objection, this Court moved the hearing date up to today, July 12th. Which we appreciate. But the prosecution did not serve us with papers until just last week. And we have had occasion to examine those papers. But if the Court

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agrees -- and I think the Court has already agreed -- there are only two issues to be argued today, and they have to be taken in the following order of necessity.

First is the issue of whether or not the Court should disqualify itself based upon the papers that have been filed. And secondly is the issue of whether or not, if the Court does not disqualify itself, a stay of the execution date should be granted.

Now, addressing recusal is not a legally complicated matter. Because I think if you read the papers -- and over a hundred pages on this issue has been submitted to the Court, including 10 exhibits attached to our moving papers for recusal -- the law is fairly clear-cut as I understand it in Pennsylvania. And I sense no disagreement from the District Attorney's Office. The law provides that a Court should disqualify itself according to the canons of judicial ethics where certain factors appear. Namely -- reading now directly from the canons of judicial conduct -- a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned. In

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other words, it doesn't have to be proven, it merely might reasonably be questioned. And the Pennsylvania Supreme Court adopted that standard in the Commonwealth V Boyle case in 1982. So we are talking about a very low standard, a threshold standard for when the Court should recuse itself.

Well, what do you look at to see whether or not the Court's impartiality might reasonably be questioned? And we are also told that by the case law. We are to look at factors and circumstances which reasonably question the Court's impartiality. And Justice Roberts of the Pennsylvania Supreme Court set that forward as the standard.

Now, in looking at that we have gathered, I believe, a total record here that's unprecedented in size and scope respecting the factors and circumstances that ought to be considered on whether or not this Court could reasonably be labeled as lacking in impartiality.

The District Attorney's papers claim that we are engaging in rumor, innuendo and speculation. But I want to point out to the

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Court that what we have set before Your Honor is not rumor or innuendo, what we have set before this Court are sworn statements of members of the Bar of Philadelphia. What we have put before the Court is the results of a poll taken of members of the Bar of Philadelphia. We have put before the Court a commentary by one of the leading scholars in Pennsylvania on the issue of the death penalty, Professor Bruce Ledowitz of Duquesne University of Pittsburgh. We have put before the Court the results of a serious investigative effort by the Philadelphia Inquirer, the leading newspaper in the community, which has examined 35 cases tried before Your Honor.

So we have gathered before this Court a complete factual record. And it is a public record, and I emphasize that, because what we have here is a public perception gathered from reports from the Bar, reports from lawyers, indeed reports from even prosecutors and judges, all of whom have commented publicly and under sworn statements as to the performance of this Court. The record I feel is not a rumor, the record is undeniable.

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And in the final analysis it's that public record which should lead to a determination by this Court that it can not sit on a case involving an African American Defendant who was convicted before this Court of killing a white police officer in this City and now seeks a new trial through post-conviction relief.

The papers that we have submitted to the Court include -- and I don't want to limit the sworn affidavit which Your Honor is familiar with -- of attorney Weinberg, a member of the Bar, who, as I understand it, is a partner and associate of a former prosecutor Richard Sprague. In his affidavit he contends -- and we have attached it -- that he has the statement of six former prosecutors of the District Attorney's Office in Philadelphia who would testify to the fact that this Court is uniformly biased against criminal defendants. A very serious allegation, not easily made, I assume, not made without considerable thought and reflection.

In addition to that we have attached the result of a study of one of the leading

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journalists in the City, Mr. Tulsky, who has examined 35 trial records in which this Court presided and has come to the conclusion -- again I believe a very studied and careful and thoughtful conclusion -- that this Court is a criminal defendant's nightmare.

We have provided to the Court the report of a poll of members of the Bar of Philadelphia which was conducted shortly after Your Honor sentenced Mr. Jamal in which one-third of the members who responded to the poll indicated that the Court was unqualified.

We have recited a report that again appeared in the Philadelphia Inquirer that lawyers, judges and prosecutors all agree on one thing, that matters tried before this Court are tried differently than they are tried before other judges.

The statistical record is also not rumor but fact. As I understand it, 31 Defendants before this Court who were tried before Your Honor received, as a result of a trial by jury, 31 death sentences. Now, as I understand it, no other judge in the City of Philadelphia has presided over 31 death

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sentences. No other judge in the State of Pennsylvania has presided over 31. And significantly, no other judge in the United States has presided over as many death sentences following trial as Your Honor has.

And lastly, we have attached the fact 17 that this Court has also compiled a record on these kinds of proceedings, post-conviction proceedings -- and we recite the cases in which Your Honor has been involved in -- and in which Your Honor has dealt summarily and, I say respectfully, injudiciously with post-conviction proceedings which death row inmates have brought before this Court.

The Pennsylvania Capital Resource Center has provided us -- and we have attached it -- a computer printout of these cases which Your Honor has sat on indicating not only that this Court has sat on more death penalty sentence cases than any other judge in the United States, but that this Court has been reversed by appellate courts more than any other judge. And not just the State of Pennsylvania but in the United States.

So this is not rumor. We are talking

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about factual records. We are talking about the sworn statements of respected members of the Bar. The considered opinions of the press. Which must indicate to this Court it reflects the considered opinions, reflects and shapes the considered opinions of the public at large.

And lastly we talk about a matter which might not ordinarily be an issue, a factor or circumstance but is in this case. And that is the fact that Your Honor has served prior to becoming a Judge of the Commonwealth for 16 years as an Undersheriff in Philadelphia. And while you were in that capacity the Court was a member of the Fraternal Order of the Police, as I understand it, and the Court was a member of the Police Chiefs' Association, and a member of the Sheriffs' Association. And we don't know what this Court's relationship is to those organizations, but we do know that one of the organizations that this Court has had a long-standing relationship with is the Fraternal Order of the Police, and that association is now currently, today, actively involved in a campaign to see to it that Mr. Jamal is executed. That he doesn't get the relief that

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we are here in Court seeking.

Now, Your Honor's association with an organization that is dedicated to that proposition clearly raises in the public mind at least a question of impartiality.

THE COURT: If I may interject for a second, Counselor, with your permission: I am no longer a member of the Fraternal Order of the Police. When I was elected as a Judge I withdrew.

MR. WEINGLASS: And then I understand Your Honor has no association whatsoever with the Fraternal Order of Police?

THE COURT: I am not a member. Not a dues-paying member, not a free-paying member, no member, period.

MR. WEINGLASS: I appreciate the Court stating that on the record, and I accept that. I just know in my own experience being a member of an organization for 14 years, although not currently a member of the organization --

THE COURT: I don't know if I was a member for 14 years. I dispute that. Because the Sheriffs were not taken in with the Fraternal Order of Police at that time. It was

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not until later on. I think I was only a member, an active member for a few years.

MR. WEINGLASS: For how many years?

THE COURT: I don't remember how many.

MR. WEINGLASS: Pardon --

THE COURT: Just for a few years. Because the Sheriff was not recognized. They are today recognized by the Fraternal Order of Police. And they are members of the Fraternal Order of Police.

MR. WEINGLASS: Well, I don't want to quibble, I feel --

THE COURT: Well, I don't want to quibble either, I just want to correct the record, that's all.

MR. WEINGLASS: And I appreciate that, and I accept the correction.

THE COURT: Okay.

MR. WEINGLASS: However, in this panoply of facts, factors and circumstances, I saved that for last because I felt that was the least important. Ordinarily that would not reflect one way or another on the impartiality of the Court, but given this Court, and all the other matters I cited, which the Court has not

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interrupted me --

THE COURT: I understand that. But to accept what you say, then no assistant district attorney should ever be a judge.

MR. WEINGLASS: No, oh, no, I don't agree with that proposition.

THE COURT: Why?

MR. WEINGLASS: I don't quite agree with the Court.

THE COURT: Why?

MR. WEINGLASS: The factor of membership in the Fraternal Order of Police does not per se disqualify this Court, I hoped I had made it clear.

THE COURT: Okay.

MR. WEINGLASS: It is the other which I had cited. It is --

THE COURT: Okay.

MR. WEINGLASS: It is the record of performance as reflected in undeniable facts here which we are concerned about. I just put in the Fraternal Order of the Police as the last issue.

Now, it is against that backdrop which I have set forth, that backdrop of factors and

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circumstances that we must now turn to consider briefly the 17 events which we set forth in our recusal motion, all drawn from the record of trial and one from pre-trial, in which this Court sat and made rulings and rendered judgments that we contend reflect that very bias and lack of impartiality that all of the public matters reveal are part of this Court's conduct in the performance of your official duties.

We cite 17. I don't want to go into all of them. They are responded to by the Commonwealth. But these 17 include issues which directly impacted the fact-finding process which resulted in Mr. Jamal being convicted. One of them Your Honor will probably recall clearly.

And if I am reciting it in error, Counsel I am sure could correct me.

The prosecution 's case included a claim that Mr. Jamal had admitted, more than admitted, had openly proclaimed in the hospital where he was brought for treatment, this man who had been a court reporter for years and knew court proceedings and evidence, had nonetheless, according to their case, openly proclaimed that he had shot the officer. But the peculiar thing

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about that part of the prosecution's case is that the two witnesses they produced, the deceased officer's former partner and best friend Gary Bell, and a hospital security guard Priscilla Durham, both failed to tell anyone about this admission, this very damming admission, for over two months. Indeed, Officer Bell was interviewed, as he should have been, by the homicide investigators one week after the shooting in which he told them all kinds of things. Speculated on why his partner was shot. But he didn't say anything about the so-called admission that he claimed two months later, after Mr. Jamal had filed a complaint against the police officers for abusing him in the hospital, a complaint that was backed up by independent witnesses. So two months later he remembers. He said he never told his wife, he never told any police officer that he heard this damming admission, just never told anyone.

And Priscilla Durham, the security guard, she said yes, I heard it also, but I didn't tell anyone. Even though I see police everyday, six days a week, I just never told anyone. But I did write it down that night in

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my own longhand. That longhand note that she claimed was never produced, mysteriously disappeared. But what kind of an answer could Mr. Jamal give to this? His answer was simple, clear-cut and definitive. The officer who was guarding him in that hospital, Officer Gary Wakshul, did write a report that night, an official police report. And what did he say about Mr. Jamal? He said the male Negro made no statements.

Well, that's a very critical defense witness to answer these charges of an admission. So when the defense case began, Mr. Jackson, Mr. Jamal's back-up attorney at that time, asked to have Mr. Wakshul brought in to testify to this report. And the Assistant District Attorney at that time said we object, it's too late, using a kind of a technical defense. Well, the Court said why don't you try to look for him, maybe he's on vacation. And sure enough, after a 10 minute recess the Assistant District Attorney comes back in and says to Your Honor, Judge, you were right, he's on vacation and he is unavailable.

Well, this is a critical defense

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witness. And so Mr. Jamal and Mr. Jackson together implore the Court to just ask the Assistant District Attorney to find out if this Officer is on vacation at home here in the City of Philadelphia or if he's left the jurisdiction. Or find out where he is.

But this is a critical witness. And the Court's reply was I'm not going to take the Court's time to go looking for a witness. They were only looking for a telephone call to ascertain his whereabouts. And the defense case was cut off and Officer Wakshul was never produced, the Jury never knew this. And Mr. Jamal brought to the Court's attention the fact that written on the report of Officer Wakshul was a notation that he was not to be permitted to go on vacation. And yet he was on vacation.

And what was Your Honor's response to this? Did Your Honor say to the police that was a wrong thing to do? Did you say to the prosecutor this man should not have been allowed on vacation? Your response was, you turned to Mr. Jamal, who faced the death penalty, and you said to him, almost casually, but kind of cruelly, you and your attorney goofed. And that

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was the end of the issue.

THE COURT: Well, shouldn't they have subpoenaed the Officer?

MR. WEINGLASS: Well, Your Honor --

THE COURT: Should they not have subpoenaed the Officer?

MR. WEINGLASS: The answer to that is of course.

THE COURT: Well, then he wouldn't have been able to leave.

MR. WEINGLASS: But, Your Honor --

THE COURT: You see, that is not my responsibility. I don't take the Commonwealth's position, I don't take the defense position. That is something they have to do.

MR. WEINGLASS: We have a claim here which has to be factually litigated in post-conviction proceedings wherein we are going to examine the ineffective assistance issue of Counsel. And that is going to be one of the issues which the defense will raise, and on that ground alone the Court should grant post-conviction relief. If Your Honor feels you've done nothing wrong, but it was Counsel who was in error, Mr. Jamal has to be given a

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new trial either way, either way you cut it. Either the Court was wrong or Counsel was wrong. But Mr. Jamal was injured and irreparably. And that's why he must have a new trial. The Court does see the importance of this witness, I'm sure. And now the Court is saying well, then Counsel was wrong. You might be right, but in any event Mr. Jamal gets a new trial on just that issue. But there are 16 other issues.

THE COURT: All right, let's get through with the 16.

MR. WEINGLASS: I will be brief, I won't deal with 16, I just want to tell the Court I am only going to deal with two or three.

THE COURT: Okay.

MR. WEINGLASS: The other one that concerns us greatly about the performance of the Court, the Court will recall an episode occurred here that was very unusual. Mr. Jamal began by being his own attorney. And in the two days that he conducted the questioning of Jurors --

THE COURT: Go ahead.

MR. WEINGLASS: -- one Juror was seated. To refresh the Court's recollection, her name was Jenny Dooley or Dawley.

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THE COURT: I am familiar with the case.

MR. WEINGLASS: And after the entire Jury was selected, the Court sequestered the Jury, they were put up in a hotel. And Miss Dawley communicated to the Court, as I understand it, by note, or through the marshals or attendants --

THE COURT: She didn't communicate with me, Counselor, let's get that straight. I didn't know a thing about it until the Court Officer relayed the information to me.

MR. WEINGLASS: Your Honor, the record of the trial indicates that the Court Officer brought before the Court the question of this Juror's personal problem. And the Juror asked the Court if she could be excused to take her cat to a vet who was ill, and not during Court time but in the evening from about 6:00 to 9:O0. So that there would be no break in Court time, and presumably she could go with the Court attendant and take care of her family emergency.

The Court shot back to this Juror through the attendant no, you can not go. The Court never asked Counsel to come into chambers and let's

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discuss this problem and let's talk about whether or not this Juror should be helped here so that we can save this Juror. The Court summarily rejected her request and the Juror, finding that she had no other alternative, went and took her cat to a vet and returned to the hotel. That was reported to the Court. And when that was reported to the Court, the Court had in it's chambers Mr. Jackson, and there was a discussion about this Juror. She was not brought in and questioned. Mr. Jamal was not there, he was absent. The only Juror who he had selected. An African American woman who sat in seat number one. And she was in Mr. Jamal's absence summarily removed.

THE COURT: No, she was not summarily removed, Counselor. But I will let the Assistant District Attorney answer that. Go ahead.

MR. WEINGLASS: There was discussion.

THE COURT: Wait awhile. You are right, there was discussion, that's right.

MR. WEINGLASS: Summarily removed in Mr. Jamal's absence. But who was present?

THE COURT: The attorney.

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MR. WEINGLASS: Mr. Jackson, Mr. McGill, the Assistant District Attorney. And this was, the Court gave the opinion about this Juror, and I must say respectfully --

THE COURT: I gave?

MR. WEINGLASS: Yes, it is in the record. It is cited.

THE COURT: If it is in the record, okay.

MR. WEINGLASS: It is in the record. And what did the Court say? And I believe, respectfully, this is what motivated Your Honor. You said I didn't like this Juror's attitude from the beginning. And you turned to the two lawyers and you said I don't know why you let this Juror on the Jury. But it was Mr. Jamal who selected this Juror. And so because Your Honor didn't like a Juror, who Mr. Jamal had selected, and the prosecution accepted her, this Juror was dealt with in a fashion that I could only describe as summary.

And why do I say that? I say that for the simple reason that later on in the trial another Juror had a problem. That Juror's problem was much more threatening to the case

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than Miss Dawley's problem. That Juror wanted to take a civil service exam during Court hours. Well, when the Court got that information, what did the Court do? Unlike Jenny Dawley, you called in both lawyers and now you said, and I think quite properly, what do we do with this Juror. And there was a decision and the Court offered to send a Court attendant with this Juror to take a civil service exam and the Court was suspended for half a day despite the fact that you had this Jury working two consecutive Saturdays, one Saturday until six o'clock at night. Time was very important to the Court, that's why you wouldn't grant an hour so Officer Wakshul could be found.

THE COURT: Well, this was in the evening, Counselor, and there was no way for me to contact the attorneys to come back into Court so we could discuss the issue. I said she was sequestered and she is sequestered, period.

MR. WEINGLASS: So was the other Juror.

THE COURT: Right. But wait awhile. We didn't do anything until the attorneys were there present. I wasn't going to do anything on

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my own. The attorneys were present and they discussed the matter. But when she did what she did, and, Counselor, she said I don't care what the Judge says or what anybody says, I am going to do it, okay, but this was in the evening, there was no way for me to get in touch with the attorneys to call them in, come into Court and say let's discuss it, what are we going to do with this person. If you remember, they agreed to excuse her, not me.

MR. WEINGLASS: They being not Mr. Jamal, who never knew this.

THE COURT: No.

MR. WEINGLASS: It was his Jury.

THE COURT: Well, he didn't want to participate in the proceedings.

MR. WEINGLASS: He wasn't invited into that chambers.

THE COURT: Because he wasn't, he didn't want to participate. That was from the very beginning he didn't want to participate. But go ahead, Counselor, I'm sorry for interrupting you. But go ahead.

MR. WEINGLASS: Your Honor, I just want to take exception with one observation.

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Miss Dawley, according to your Courtroom attendant, who did testify on the record --

THE COURT: Hmm-hmm.

MR. WEINGLASS: -- and asked to take her cat to that hospital throughout that day, in the daytime hours.

THE COURT: Unfortunately, I didn't know about that. I didn't know about that.

MR. WEINGLASS: That is in the record.

THE COURT: Well.

MR. WEINGLASS: It wasn't at night.

THE COURT: Well, I thought you just said a while ago it was at nighttime that he called me. But go ahead. Maybe the Commonwealth looked at the notes more carefully. But go ahead.

MR. WEINGLASS: Your Honor, the undeniable fact is what happened here, not going back into it, is that Juror Number 1, an African American woman picked by Mr. Jamal, was removed in his absence and replaced by Juror, first alternate Juror Mr. Courchain, who said he subconsciously felt he didn't think he could be fair. And Mr. Courchain ended up being Juror Number 1.

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THE COURT: But -- not to cut you short, Counselor -- didn't the Supreme Court on direct appeal go into that matter?

MR. WEINGLASS: Yes.

THE COURT: Well, if they went into it it is resolved.

MR. WEINGLASS: But they didn't go, they went into half of it. They went into the question of whether or not the Court's discretion as a matter of law was violative of Mr. Jamal's rights. I am now arguing not that issue, I'm arguing the way the Court handled this issue, apart from your discretion as a matter of law, indicated a lack of sensitivity to the fact that this man is on trial for life and he picked a Juror who the Court removed in his absence.

THE COURT: That is the same issue, Counselor, that they have already resolved.

MR. WEINGLASS: I beg to differ. They never were even asked because appellant Counsel never read the record of what happened to Jenny Dawley; it was not even raised in the Supreme Court. The only issue was, was it proper to seat Mr. Courchain. That was raised, but not the

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whole business about the Court removing a Juror, which as Your Honor well knows is a very serious matter in law. You can not take from a defendant, particularly a capital defendant, his jury. You can't touch that jury unless there is adequate grounds. And that was done here.

And I want to say just in passing and move off this: In their response to our argument on that issue, where we say and say accurately that an African American Juror was removed and replaced by a middle-aged white Juror who said he wasn't sure he could be fair to Mr. Jamal, and another Juror was given great leeway who happened to be a young Caucasian Juror, male, the Assistant District Attorney tries to say we are attempting to create a racial issue where none exists. And they hide behind a technical subterfuge that nowhere in the record is the race of these Jurors indicated. And therefore they try to inform this Court that we tried to make racial issues where none exists. But what they overlook, maybe inadvertently, is an affidavit which their Assistant District Attorney filed with the Supreme Court when the case was over in which he

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stated the race of these Jurors. And Assistant District Attorney Joe McGill said I have a distinct recollection that Jurors Number 1, 7 and 10, Jenny Dawley, Savannah Davis, and Basil Malone were black. So it is in the record. And he goes on: Juror Number 1 was removed and replaced by the first alternate who was Caucasian.

So their own Assistant District Attorney in an affidavit informs the Supreme Court of the race of these Jurors. And when we raise it before this Court they say we are trying to create a race issue where none exists. But they just overlook the record, which they have done often. And their response is that -- and I don't want to get into it because I don't believe in argument among Counsel: I think issues ought to be addressed on their merits -- but that's nonetheless the way they deal with the issues that we raise about these Jurors.

Your Honor, I just want to talk about discretionary rulings that you made. A cab driver, an alleged eyewitness by the name of Robert Chobert, confessed to this Court at sidebar that he had a felony conviction for

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throwing a Molotov cocktail into a public school for pay. A rather serious felony I think everyone would agree. The Jury was never told that. And they were never told that because the Assistant District Attorney objected.

THE COURT: No, not because he objected. But because the felony has to be crimen falsi. That's the law here in Pennsylvania, Counselor. I don't know what the law is in New York. Maybe that would be admissible in New York. But in Pennsylvania it's not admissible unless it's crimen falsi.

MR. WEINGLASS: Yes, and I quite understand the law in Pennsylvania, and I appreciate it. But the law in Pennsylvania also is this. Under the case of Commonwealth V Murphy, where a case tried before Your Honor was reversed so I am sure you remember it, in Commonwealth V Murphy what was kept from the Jury was the fact that the witness was still on probation, which Mr. Chobert still was. And the Jury in Mr. Jamal's case was never told that. That reversed the Murphy case. And that's the part that was error. So the Jury never knew this. And as Mr. McGill then argued in

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summation, these witnesses had no reason to lie. Of course they did. That witness was on probation and the Jury was never told it.

You also cut off the questioning of witness Veronica Jones. She was attempting to tell the Jury that their key witness -- a young woman who, unfortunately, lived a life as a prostitute, had 38 arrests, had three pending cases in Philadelphia, was serving 18 months in Massachusetts on another related prostitution charge -- Veronica Jones attempted to say to the Jury that I was offered the same deal by the police as was given to this prostitute, and that is if I would talk against Mr. Jamal I could work my corner unmolested by the police. Your Honor felt that had nothing to do with the case. But, Your Honor, it had everything to do with the case. It established the motive of the chief prosecution witness, her deal. And now we know by way of affidavit from an investigator, an investigator Mr. Greer, that not only did she have a deal to work her corner unmolested, she was always under the watchful care of two plainclothes officers of the Police Department of the City of Philadelphia. Incredible that

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that witness was accorded those privileges in return for her testimony. But the Jury was never told that.

So these rulings, Chobert, Veronica Jones, removing a Juror, denying a continuance, all of these, Your Honor, impacted this Jury. And that's why of course a conviction would follow.

I don't want to go into the others, the other 14, but I will say this: There was an interaction here, for better or worse, fortunate or unfortunate, between this Court and Mr. Jamal in which Your Honor used, I think regrettably and possibly you regret it in hindsight, inappropriate language in addressing Mr. Jamal. When you banished Mr. Jamal from the Courtroom for whatever reason, the Court injudiciously said to him -- it is on the record -- take a walk. You do not say that, I submit, to someone who faces a death penalty in a trial and is trying to defend himself. He is not to be addressed in that fashion. In addition, as already mentioned, to him you said you goofed. And when he asked to have Mr. John Africa seated at his table you casually said to him why don't

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you send him to law school, and there were exchanges of that nature which are utterly inappropriate but reflective of the lack of sensitivity that the Court had with respect to Mr. Jamal's situation.

Your Honor, so we come full circle around. Do all of these factors and circumstances taken together, including the background factors, do all of these raise just a reasonable question, no more than that, a reasonable question about the impartiality and the fairness of this Court to preside over proceedings in which the life-and-death issue of Mr. Jamal's situation will be resolved.

We have raised in our petition, Your Honor, very substantial and factually intensive issues pertaining to questions, as I have already indicated: The way the Jury was selected, 11 peremptory challenges exercised against African Americans to purge the Jury of as many African Americans as possible. I know Your Honor is going to say that was raised in the Supreme Court. Indeed it was, but it was raised on the basis of a statement which the District Attorney's office gave to the Supreme

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Court, which turns out, we believe, to be inaccurate and false. They told the Supreme Court of Pennsylvania that they only used eight peremptory challenges against African Americans. We now have reason to believe that they used 11, or about 80 percent of all their challenges, an unacceptable number, as our memorandum points out. The United States Supreme Court said we are well past the day when prosecutors in a city that has a large population of minorities can use the office, their public office, their public trust, to purge a jury of the peers of the person who is on trial. That's what happened in this case. And it happened more than they told the Supreme Court.

We'll have an evidentiary hearing, I hope, and we'll bring before the Court what they did there. We will also bring before the Court how Jenny Dawley was removed.

And Your Honor is correct: There might be factual arguments here. You might disagree with me, the Commonwealth will disagree with me. We ought to have a hearing, we ought to have sworn testimony under oath with witnesses testifying about what did happen so

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that when this case is decided it will be decided on the facts, not anybody's recollection.

There was also, as I pointed out, major issues of ineffective assistance of Counsel. We have an affidavit from Mr. Jackson. Major issues they disagree with. You have to hear from Mr. Jackson. You have to hear from his appellate attorney, who we have an affidavit indicating the appellate attorney never read the trial record. People say Mr. Jamal had an appeal. He had an appeal like he had a trial, but he had an attorney which never read the record. That's why the issues I am talking about right now weren't raised.

And lastly but most importantly, there are many new factual issues here that we have recently come across. Because evidence was suppressed, evidence was kept from his defense Counsel. Evidence is still being suppressed. People were driven out of this City who said someone else shot the Officer. People were given polygraph tests who wanted to testify on Mr. Jamal's behalf. The tests were torn up. People were shown photo line-ups. Defense

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Counsel were never told that. Presumably they identified someone else because they were never brought in here. So the case, the evidence, the so-called evidence was a one-sided show of evidence. Only the evidence that the police and the District Attorneys wanted to lay before the Jury was laid before the Jury. The other evidence which we now have some indication of was never brought into play. We have to have a hearing on that. A serious hearing.

Mr. Jamal never had a pathologist. There is one now. What he has to say is critically important to this case. It completely belies the theory on which the case was tried.

We now have a firearms expert. He should also testify, it is very important what he has to say.

We now know, and I think probably Your Honor now knows for the first time, that the medical examiner who they put on the stand wrote in his report that the bullet removed from Officer Faulkner was .44 caliber. Mr. Jamal's gun was a .38 caliber. You can not fire a .44 caliber bullet with .38 caliber gun. The Jury

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was never told that. Never brought out.

So all these issues have to be brought to the surface in long hearings. But what happens in these hearings? Your Honor sits as the Judge finder of fact. The sole finder of the law. We have no jury to turn to with this hearing. Only this Court. And that's why it's so important that this Court sit free of the taint of partiality and unfairness.

Particularly, Your Honor -- and I will just close with this -- particularly in a case which all the media has reported has had a polarizing effect on the City, for better or worse, and now I think it could fairly be said in the nation as well. And even internationally.

I just want to say, I don't think Your Honor is aware of it, but we have two attorneys here from Japan, and two attorneys here from Germany, who were sent by lawyers' associations in their home countries because their countries are concerned about this. I myself have had a call from the Consul General of Italy who said the foreign office in Rome wants a report on these proceedings.

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So it's important in every case, because there is always a life on the line. And it's critically important. It's also even more important in a situation where the life of the City, the peaceful life of the City, and the peaceful sense of unity in the nation, is on the line as well.

Judge Ribner, your colleague, his first comment when he heard of this case, even before all of this, his first comment was this is a case that has explosive tendencies in the City.

For all these reasons, including matters I didn't argue, the 14th Amendment to the Constitution of the United States, the 8th Amendment which requires heightened scrutiny of a case where the death penalty is involved because it's so final, the precedence of law which I cited in Pennsylvania, I would ask the Court on behalf of Mr. Jamal, for the Court to reflect on all these matters, and because of the public perception, because of the reason this Court can't give what the Pennsylvania Supreme Court has said is the essential ingredient of every proceeding, namely, the appearance of

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fairness, I would ask this Court to step aside so that another jurist in the Commonwealth of Pennsylvania may consider these proceedings.

MR. BURNS: Good morning, Your Honor.

Mr. Weinglass said that we agree on the law. I don't think that's true. I would like to direct your attention as I have in my filing to the case of Reilly versus SEPTA, a Supreme Court decision of 1985 which was recently reaffirmed by the Pennsylvania Supreme Court just last month. June of 1995. It is cited in our answer to the stay petition. I am going to quote what Justice Cappy wrote in that case, a reiteration of what the Court decided in Reilly. Justice Cappy wrote that whether a judge has the ability to be impartial is, quote, a personal and unreviewable decision that only the jurist can make. Once satisfied by that self-examination, the jurist must then consider whether or not continued involvement in the case would tend to undermine public confidence in the judiciary in reviewing a denial of his disqualification. We recognize our judges are honorable, fair and competent. Once the decision is made, it is final.

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Now, the Court said something else in writing Reilly. It said that a judge hearing a recusal motion has to remember that public confidence in the judiciary depends on the knowledge the judges will not be swayed by unfounded charges of unfairness made by, and I quote, bold and unscrupulous advocates.

There's been a lot of representations made. Most of them concern what happened during the trial. Some of them concern matters which are not of record, and I would look forward to hearing that evidence presented by the defense in the event we get to the stay motion today. I would like to see witnesses presented.

But as to the recusal motion, the bulk of the complaints seem to be referring to matters that occurred at trial that are matters of record. And in referring to those matters, I suggest to you that there has been a consistent strain of misrepresentation taking place here.

One of the things that was mentioned -- I am going to try and answer all of them -- one of the first things that was mentioned was the matter of witnesses Priscilla Durham and Officer Bell. Those were two

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witnesses who heard the Defendant when he was brought into the hospital admit that he had shot the victim -- I am not going to repeat the exact words -- and express his wish that the victim die. And during cross-examination of Miss Durham -- and again this is all part of the trial record -- as the defense attempted to show that Miss Durham had not told anyone about this statement until months after the event, until after the Defendant had made an accusation of brutality against the police -- and that investigation of course proved to be unfounded -- but during that investigation, the defense claimed was the first time that Miss Durham had mentioned this to anyone. And at that time she revealed that she had given a statement to her superiors the next day. And she produced a statement in writing that she had given to her superiors which totally refuted the idea that she had not told anyone. And this is on the record at trial.

Officer Bell, it is true, did not tell anyone about the statement when he was first interviewed. He was later interviewed again and he explained that he was watching his best

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friend die on the operating table and that when he heard the Defendant say this, and he was interviewed about it immediately after the event, he was simply too upset to recall it. This supposedly sets up the situation in which Officer Wakshul was not called.

Now, the record shows that at various points in the trial Mr. Jackson, the Defendant's attorney expressed his discomfort because he didn't even know who the witnesses were going to be because the Defendant would not tell him who they were. This trial had been in progress for over a month, since June lst, when on the day that closing arguments were supposed to take place the defense stated that it wanted to call Officer Wakshul. And Mr. Weinglass now tells you that Officer Wakshul is a critical defense witness. Well, Officer Wakshul too had given a statement saying that the Defendant had made this admission that he had shot the victim, that he hoped the victim would die. So if anything, Officer Wakshul was a prosecution witness. And if anything was written on his report about him not going on vacation it was for the purpose of calling him as a prosecution witness.

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The defense had both of these reports. It had the report of Officer Wakshul saying that he had guarded the Defendant and the Defendant had not made any comments. And it also had his later statement in which he said I said he didn't make any comments while I was guarding him, but he went on to explain that after he had been released of guarding the Defendant he heard the Defendant make this statement. So Officer Wakshul could have been called as a prosecution witness. Now they portray him as an example of your bias in not allowing the defense to hold up the trial because when they finally did decide to call Officer Wakshul, after the prosecution had long ago rested, after he had already gone on vacation, he was not available. He would not have been available until July 8th when he returned from vacation. That's what the record says. It is not what you hear being said here but that's what the trial record says.

Let me move on to the suggestion that Jenny Dawley or Dooley was improperly removed from the Jury. I think it's interesting that many significant facts were left out of Mr. Weinglass' presentation. The first being

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that the Defendant yes, indeed, selected this Juror. In fact, he personally voir dired her. And the record of the voir dire showed he offended her: She didn't like some of his questions, she expressed her displeasure. He nevertheless selected her as his first Juror.

On the first day of trial the Defendant completely derailed the proceedings. He made it impossible for the opening statements to take place. The Jury eventually had to be taken out, he had to be removed and the entire first day was simply derailed by his actions. On that same day this Juror chose to violate the sequestration order because she wanted to take care of her cat. She had already mentioned that she had a husband at home who, evidently, could have taken care of the animal. Well, be that as it may, she didn't get the Court's permission to go, she simply chose to go. And the Crier reported it to you -- and this is a part of the record -- when he told her that she should not leave, she said I don't care what Judge Sabo or anybody says, I do what I have to do, nobody is going to stop me.

Well, when this was brought to the

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attention of defense Counsel -- and it is true, the Defendant wasn't in the room because of course he had been removed for his misconduct so he wasn't present -- but the defense attorney took that opportunity to let this Juror be removed for the reason that she had broken sequestration and because he agreed with the prosecutor who observed that this Juror appeared to hate the Defendant. And the Court noted that she appeared to be mentally unbalanced. So the defense attorney felt it would be a good thing if this Juror who appeared to hate the Defendant was not on the Jury and he agreed that she should be removed. And this is presented to you as an example of your bias.

The defense says that you terminated the questioning of Veronica Jones. Well, the record shows that the questioning of Veronica Jones ended when defense Counsel had no more questions. That's June 29th, 1982, page 179. I don't recall Miss Jones attempting to testify on the motives of another witness but if she did that would have been inadmissible: A witness can't testify about what is in the mind of someone else.

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It's been said here that you banished the Defendant from the Courtroom. The record shows that time and again the Defendant intentionally disrupted the proceedings. This happened on a daily basis, from June 18th to the end of the trial. Each time the Defendant did this you would later send for him, ask him to behave properly, he said he would, each time he went back on his word, had to be removed again. So the use of the word banished I think is not particularly accurate. And it certainly has nothing to do with any question of recusal, certainly has nothing to do with your personal bias. In fact, removing the Defendant under those situations was approved by the United States Supreme Court in Illinois versus Allen.

The defense has claimed in their filings that because of the tension between the defense attorney Mr. Jackson and the Defendant, that you should have taken some sort of remedial steps, you should have investigated the situation further and this is an example too of your bias. Of course the record shows that the Defendant was not prepared to cooperate with any attorney. He stated repeatedly on the record

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that he was following the so-called strategy of John Africa by disrupting the proceedings and portraying himself as a political figure being persecuted by the system. He stated that he had no intention of cooperating with any, quote, legal-trained lawyer because any such attorney would be an employee of the court system who would be conspiring with you in the prosecution in order to, quote, hang him. Well, the Defendant made it impossible for any attorney to correctly represent him, yet he presents this to you as an example of your bias.

It is interesting too some of the mention that was made in the defense filings of the appellate record. Mention was made today of the fact that Mr. Chobert's record was not used. Of course the record shows that his record was offered as crimen falsi; and there was argument at sidebar about whether or not an arson conviction constitutes crimen falsi, and you correctly decided that it did not. That's the purpose for which it was offered; you correctly ruled that it was not admissible for that purpose. There is no bias in that.

Mention is made, though, of a case in

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which a witness' record should have been admitted. Commonwealth versus Murphy was mentioned. Now, the defense refers to this case as though it was a criticism of your decision by the Supreme Court, whereas in fact the Supreme Court's decision was reviewing an issue of whether or not Murphy's Counsel was ineffective: Something that you had no control over. So the Murphy case has nothing to do with you as a Judge. Again it has nothing to do with you being biased.

They mention in their filings the case of Commonwealth versus Reed in which they portray you as denying a capital defendant the assistance of a psychologist to assist him in his defense. What they don't say, and which is mentioned of course in the Reed opinion by the Supreme Court, is that this Defendant had two murder cases and had already been examined by three court-appointed psychiatrists when that request was made. And that at the time this of course was made, you offered to give the defendant in that case yet another examination by another Court-appointed psychiatrist. But the defense said no, I have a handpicked

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psychiatrist, or psychologist, rather, who will act not as an expert witness, not as an objective witness, but rather as an advocate, rather as a hired gun. You said well, the State's not going to pay for that. And this was brought to the attention of the Supreme Court of Pennsylvania and they said you ruled correctly. It was brought to the attention of the United States Supreme Court, and they denied review.

It is said in the defense filings that you did not allow the defense to ask jurors what their race was, potential jurors while they were being voir dired. They cite the notes of testimony, June 7th, 1982, page 20. On that page of the record you are on the record saying to the defense if you want to ask that, go ahead. The record says the exact opposite of what the defense claimed it says as an example of your bias. The exact opposite. Totally misrepresented.

The defense states that it has presented you with an unprecedented record. I mean that's true, but it is certainly not in the way they intend. I don't believe that there is any case in Pennsylvania indicating that

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reliance on newspaper articles or hearsay opinions of disgruntled defense attorneys can stand as a basis for recusal. Your own self assessment is what is important.

But there is another issue here I think which is important too. And that is, as I have already mentioned, the integrity of the judiciary. Because the issue in this case is whether a judge may properly be driven out of a case by a campaign of public pressure. I think the record should show when the Defendant was brought in there was applause in the room. I think the record should show there was chanting in the hall outside. It should show there was chanting in the street outside that is audible here in the Courtroom. And Mr. Weinglass went on television three days ago, on Issues And Answers, a local television show, and he stated that this case outraged the Supreme Court of the United States.

Now, I thought that was interesting because I handled the Commonwealth's response to the Defendant's petition for certiorari in the Supreme Court, and they didn't express any outrage. They didn't express any outrage at

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all. As a matter of fact, they said petition is denied, period. Some outrage. Yet this man goes on television and tells the world that the United States Supreme Court is outraged at what happened in this case. Untrue. Falsehood.

Mr. Weinglass said on television, and he said it again in this Courtroom, that you had been reversed more than any other judge in the United States. That's absolute nonsense. I don't know where that comes from. In fact, he said in his filing -- and he based this, by the way, on a newspaper account -- that up until 1992 you had been reversed 18 times. I don't know whether or not that's true, but I believe you came on the bench in 1974. And since that time you have been hearing mainly homicide cases, certainly the most difficult, most challenging cases in this Court system; and if you were reversed less than once a year, I think that's an enviable record for someone in your position. Assuming that that's true. I have certainly no way of determining that.

There was reference to your interaction with Mr. Jamal on the record. Well, we cite a plethora of situations, of places in

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the record where the Defendant was taunting the Court, was refusing to cooperate, was making gestures and demonstrations of disrespect. And throughout you maintained your equilibrium in what I must say is a commendable manner. The record in this case is truly unprecedented to the extent that the Defendant attempted to portray himself as a political victim and attempted to disrupt the proceedings on a daily basis. And there was nothing that this Court did during the proceedings that was in any way improper.

The bottom line in regard to all of the statements that have been made that are contradicted by the record, refuted by the record, refuted by appellate decisions, that the defense attempts to rely on is this: It demonstrates that the defense in this case does not care about the truth, does not care about the law, does not care about the record. What it cares about is making inflammatory statements which are intended to inflame and feed an atmosphere of public pressure which is directed at you, which is intended to pressure you. And the question of public policy in this case is

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whether you should entertain the notion that a judge should be driven out of a case by a campaign of public pressure like this.

I have seen, in addition to all else I have seen fliers distributed by I do not know who, in which they include your FAX number, and they say put pressure on this Judge, send him a FAX. And I wonder if we could ask you for the record, Your Honor, if you have received any FAXs?

THE COURT: (Indicating).

MR. BURNS: You are indicating by spreading your arms wide, indicating that you have received quite a few. I expect. I suggest that that is all part and parcel of the strategy that's been adopted by the defense in this case. As a matter of public policy, only you can tell us? Can decide whether as a matter of conscience you can be unbiased in this case. And the Supreme Court has said that that is something only you can decide and that is unreviewable.

The public policy question, the additional question is what is a person to do in terms of this attempt to put pressure on the judiciary, on you personally by making these

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false statements. And I suggest that the proper response is to deny the motion for recusal. Thank you, Your Honor.

MR. WEINGLASS: Just very briefly: I'm new here and I am an outsider, I am aware of that.

THE COURT: That's all right.

MR. WEINGLASS: But I am somewhat disconcerted when the representative of the District Attorney's Office, which has I assume many attorneys and many fine attorneys, stands before this Court and talks about matters that are not of record: Fliers, television appearances where I did appear with Assistant District Attorney Joe McGill because I thought it was important for both sides to be heard, and references are made that are inaccurate, that are outside the record. Indeed, in the written submission, Your Honor, you must have seen as I did that in response to the sworn affidavits that we filed with our Exhibit, Counsel just willy-nilly recites in his response that well, these are all sworn affidavits of lawyers. But I want to tell this Court, and put this in writing, that I know a lot of lawyers,

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presumably fellow members of his office, who think Judge Sabo is very fair. But they don't attach any exhibits, no affidavits, no respect for this Court. They come and they make this plea but when they perform as attorneys, they perform outside of all acceptable rules and bounds of propriety. I just want to say that's shocking.

Now, I don't want to go into a point-by-point rebuttal because I think our position has been amply made, but I do want to talk about some things. Counsel refers to the record where the defense asked Your Honor to put the race of the jurors into the record so that an appellate court could see what they then predicted would happen and indeed did happen, and that is, namely, representatives of the District Attorney's Office did what they ordinarily do, and that is they struck 11 of 15 jurors who were African Americans to reduce the number of Jurors on that Jury. But when that request was made to the Court, Your Honor denied that request. And you said instead what he now reads from the record. You put it on the record, I'm not going to do it. But, you see,

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the plea with the Court was Your Honor, don't make us turn this into a racial issue. There are racial issues here but we think the Court ought to state for the record so that Counsel doesn't have to the race of jurors that an appellate court could review it. They were trying to reduce the level of --

THE COURT: Counselor, you have to understand that at that time that was not the law. But I did say to them if you want to ask the juror his race. I can't look at him and say his race is a certain race. Ask him. And if they had asked then they would have it on the record.

MR. WEINGLASS: Yes, but you put the defense Counsel in a difficult position.

THE COURT: No, it is not difficult. You just ask.

MR. WEINGLASS: Your Honor, lay people come into a courtroom, they don't know the rules. They sit in the witness chair and the lawyer says to them first question, what race are you, they seem ridiculous, if not inflammatory. If not provocative. It undermines the credibility of the lawyer.

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THE COURT: I don't care who asked, whether it would be the Commonwealth or the defense, I said be my guest.

MR. WEINGLASS: The defense is the only one interested, Judge. The defense was the one who asked for it.

THE COURT: Well, if they are interested then they have to. Or if they could have waited until the juror left the Courtroom, because we had individual voir dire, they could have waited until the juror left the Courtroom and then put on the record the race of that individual. I have no objection to that.

MR. WEINGLASS: The fact of the matter is this, Your Honor: You refused the request.

THE COURT: I didn't refuse the request. I said --

MR. WEINGLASS: You refused to put the race --

THE COURT: I don't think it's my responsibility to do that.

MR. WEINGLASS: Precisely.

THE COURT: And that wasn't the law at that time, Counselor. So if you want to put it on the record you wait until the juror leaves

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the Courtroom.

MR. WEINGLASS: I'm very glad Your Honor said that wasn't your responsibility.

THE COURT: It isn't.

MR. WEINGLASS: Because what happened is, in Mr. Jamal exercising his rights, he excused one juror peremptorily, who was an African American male.

THE COURT: Yes.

MR. WEINGLASS: And what happened when he did that? Your Honor put on the record --

THE COURT: Right.

MR. WEINGLASS: -- the race of that juror.

THE COURT: Right.

MR. WEINGLASS: So that an appellate court could see that Mr. Jamal had excused one juror. But when the prosecutor excused --

THE COURT: They could have done the same thing after the juror was excused. He could have done the same thing. He didn't have to ask the juror if he didn't want to.

MR. WEINGLASS: But the question remains why did Your Honor intervene at that moment.

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THE COURT: Because he was making an issue of race and that's why I figured they ought to know the race of the person that he is striking.

MR. WEINGLASS: So you were correcting the record for the benefit of the Commonwealth.

THE COURT: No, I am not correcting the record for anybody; I am saying they could have done the same thing. I didn't stop anybody from doing that.

MR. WEINGLASS: But you didn't do it for any of the 11 that were struck by the prosecution.

THE COURT: Because nobody asked me to do it.

MR. WEINGLASS: No one asked you to do it when Mr. Jamal struck a juror but you did it on your own.

THE COURT: Okay. After the juror had left. But not while the juror was here.

MR. WEINGLASS: You did it but you didn't do it for any of the 11 that they struck. Af --

THE COURT: I don't even remember, if anybody had complained I would have made a

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record of it. If the defense had said I want to make a record of that juror's race that has just been excused, if they had they would have done it.

MR. WEINGLASS: Let me ask you: Your Honor says you made that record against Mr. Jamal with no one asking you.

THE COURT: I didn't make the record.

MR. WEINGLASS: You put it on the record.

THE COURT: I put it on the record, sure, because everybody was making an issue, at least the defense was.

MR. WEINGLASS: You didn't put it on any of their 11 strikes.

THE COURT: Because nobody asked me about that. If the defense --

MR. WEINGLASS: For the Defendant.

THE COURT: Counselor, please, I am not going to argue with you about it.

MR. WEINGLASS: Your Honor, I just want to say a few other things. They bring up the Reed case where the court refused the defendant the right to have a psychiatric exam. They explained why the court did it. I don't

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want to quarrel with that. The problem and the reason why we submitted it was because the comment that Your Honor made when you denied this Defendant his right to a psychiatrist. You recall your comment? Your comment was you might as well mine for gold while you're at it.

THE COURT: Well, because the Court has to look where it could spend it's money. We don't have, we don't have OJ Simpson here who could afford to spend millions of dollars, and the court can't spend millions of dollars on every case. We have Court psychiatrists that are impartial and they examine all Defendants.

MR. WEINGLASS: I am not quarreling with the substance of your decision. Although I do take issue with it.

THE COURT: If you are not quarreling with the substance of my decision then what are we arguing about?

MR. WEINGLASS: I am quarreling with the insensitivity of the comment.

THE COURT: No insensitivity, Counselor.

MR. WEINGLASS: A man is on trial for his life.

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THE COURT: Fine, I realize that. He was on trial for his life. He wanted to disrupt the proceedings. And his attorney came to me before the case even started and said he doesn't want me to participate. He doesn't want me to even cross-examine the witnesses. And I said to him, as the Supreme Court has already ruled, that you must disregard such an instruction, you must defend that Defendant to the best of his ability. And I said to him you are legally, morally and ethically required to defend him to the best of your ability. And I said if you don't I am going to hold you in contempt and I am going to commit him, and that's what I told him.

MR. WEINGLASS: And you did hold him in contempt.

THE COURT: If he doesn't follow that instruction, yes. I don't remember what contempt I held him for. And this was, I don't even know if this was on the record, because this was as I was beginning to leave the Courtroom, Joe McGill, the Assistant D.A., and Anthony Jackson came up to me, and that's when they explained to me what the Defendant wanted

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him to do. And I said I don't want you to follow those instructions: You are legally, morally and ethically required to defend him to the best of your ability. And you better cross-examine every witness that is put on that stand to the best of your ability.

Now, if that show bias on my part so be it. I was interested in seeing that he got a fair trial.

THE COURT OFFICER: Order in the court.

THE COURT: Please, I told you before we are not out on the street. You are in a Court of law. You will maintain proper decorum here. If you act up you will be excluded from the Courtroom.

MR. WEINGLASS: Your Honor, there was one comment made by the Assistant District Attorney which I think ought to be responded to. He indicated that Mr. Jamal said that he intended to disrupt the proceedings. Your Honor can look through the 18 volumes as I have and you will not find one single reference by Mr. Jamal to the fact that he ever intended to disrupt the proceedings. You find the opposite.

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He kept reassuring the Court I have no intention of disrupting this trial, I only want to have my interests protected. That's what he kept saying to Your Honor. So for Counsel to say that, that's Counsel's own imagination. If he can find one reference in maybe 4,000 pages of transcript where Mr. Jamal ever said he wanted to disrupt these proceedings, then I will retract that.

THE COURT: All right, I will let him answer that.

MR. WEINGLASS: But I don't think there is a single reference where he said that.

MR. BURNS: Your Honor, I am not saying that there is any place where the Defendant stood up and said I am going to disrupt the proceedings now, no. What the Defendant did was he said I am following my personal strategy of John Africa and then he would proceed to disrupt the proceedings. And of course he constantly denied it. You know, you brought him in one time, and I don't know whether it was the fifth time or the tenth time, and you said will you please be courteous now and not disrupt the proceedings. The Defendant

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said I've never been disruptive. Laughable. Laughable, Your Honor. Really.

THE COURT: He was making a -- and I don't know if the record shows this but he was making frequent contacts with a female MOVE member, I forgot her name.

MR. BURNS: The record shows he was constantly conferring with, one was Theresa Africa, and there may have been another individual. But you allowed him to refer -- confer, pardon me.

THE COURT: And he was following their orders.

MR. WEINGLASS: He was?

THE COURT: I said he must have been following their orders.

MR. WEINGLASS: I beg your pardon?

THE COURT: Well, because he came back in, I guess they told him to come back.

MR. BURNS: Whether or not he was following someone else's orders or what he was following -- what he said was his personal strategy, the strategy of John Africa -- the fact is the Defendant proceeded on a daily basis to disrupt the proceedings. Now, whether or not

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he affirmed that by saying I am going to disrupt the proceedings now, no, that is not our claim. Our claim is that he went ahead and did it, that his actions speak more loudly than anything else he could have said.

THE COURT: In other words, you're saying his actions tell us what his words were.

MR. BURNS: Yes, Your Honor.

MR. WEINGLASS: Now that we have brought the question of the record to the fore, Counsel has receded somewhat and said that well, the record doesn't show that he ever said that. But Counsel did represent to this Court ten minutes ago that he said that, and he never said that.

As a matter of fact, he never said that he is following the strategy of John Africa, he never said that either. That is another one of Counsel's inferences.

MR. BURNS: The record will show that he did, Your Honor.

MR. WEINGLASS: Innuendo.

THE COURT: Did you say something? I thought he answered you. Did you answer him?

MR. WEINGLASS: Please.

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MR. BURNS: Your Honor, I would say that the record shows that he did say that he was following the strategy of John Africa.

MR. WEINGLASS: Really? Again I will stand corrected. I would appreciate that.

MR. BURNS: We will prepare a memorandum later today with the reference.

MR. WEINGLASS: That is not the record, Judge.

MR. GRANT: I could help Mr. Weinglass.

Charles Grant on behalf of the Commonwealth.

With Your Honor's permission: On June 2lst, 1982, during the course of the trial, Mr. Jackson, his previously back-up attorney, then forced into the role because the Defendant refused to participate as primary Counsel, stated to Your Honor --

MR. WEINGLASS: Mr. Jackson.

THE COURT: Just a minute.

MR. GRANT: Quote, quote, there may be additional comment from Mr. Jamal that I would like. My consultation with Mr. Jamal results in my representing to the Court that, indeed,

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notwithstanding the Supreme Court order, notwithstanding Your Honor's order, Mr. Jamal will continue to act according to the strategy of John Africa, and that is consistent with his consultations with Theresa Africa as well as my participation in his defense.

Then on June 26th, transcript page 37, notes of testimony, Mr. Jackson again addresses the Court.

MR. WEINGLASS: Your Honor, this doesn't respond to my request --

THE COURT: Counselor, please.

MR. WEINGLASS: Mr. Jackson said a lot of things.

THE COURT: I just want to hear what he is going to say. I will give you another chance at it.

Go ahead. Go ahead. Sorry for the interruption.

MR. GRANT: Quite all right, Your Honor. Mr. Jackson, quote; I just consulted with Jannet or Janet Africa, who has advised me to tell Mr. Jamal that he should come into Court and not say anything, not interrupt the order and process of the trial. Mr. Jamal has

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indicated to me that he plans to act consistent with the advice of Janet Africa in that he will remain in Court and not interrupt and will be quiet.

MR. WEINGLASS: Which shows that Mr. Jamal was obviously not into disrupting the proceeding. If in fact he was following the strategy of John Africa. But, Your Honor, my position stands.

THE COURT: This is his attorney saying that.

MR. WEINGLASS: No, it is not his attorney. Your Honor, you know it is not his attorney. It's his --

THE COURT: It was his attorney as far as the trial is concerned.

MR. WEINGLASS: The attorney who you imposed on him who didn't want the case and who he didn't want.

THE COURT: Who didn't want him?

MR. WEINGLASS: Mr. Jamal didn't want him.

THE COURT: I know that but sometimes we have to have an attorney appointed for him whether he wants it or he doesn't want it.

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MR. WEINGLASS: Your Honor, I just wanted to say a few other things. There was no statement in writing from witness Priscilla Durham who claims she heard Mr. Jamal's statement in the hospital. That was a misstatement of Counsel. She testified I hand wrote a statement that night but that statement mysteriously disappeared. What the prosecution produced was a statement which she denied knowing anything about, which was typed up allegedly by someone else, who was never produced. And that statement is the statement he is referring to.

THE COURT: Counselor, here we are talking about recusal. This is something, what has that got to do with recusal?

MR. WEINGLASS: No, what it has to do with recusal is Your Honor allowed it although it was improper.

THE COURT: Well, it was a legal decision and the Supreme Court reviews these things.

MR. WEINGLASS: They didn't review that one.

THE COURT: Well, we don't know. They

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reviewed the entire record.

MR. WEINGLASS: Well, his own Counsel never read the record.

THE COURT: They don't have to because if you read the Supreme Court's opinion, they have gone into matters that were not brought up and were technically considered as waived but the Court said in fairness they would still make a decision on it. Which they did. When the Supreme Court of Pennsylvania speaks, I follow. That's it.

MR. WEINGLASS: I am going to hold you to that, Your Honor.

THE COURT: Absolutely. Whatever they tell me is what I do.

MR. WEINGLASS: Your Honor was reversed last Friday, July --

THE COURT: Last Friday by what?

MR. WEINGLASS: By the Supreme Court of Pennsylvania.

THE COURT: When did they reverse me?

MR. WEINGLASS: Fahy case.

THE COURT: They didn't, they just granted a stay and they sent --

MR. WEINGLASS: To Your Honor's --

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THE COURT: Because there was no reason for me to grant a stay at that time.

MR. WEINGLASS: And he took an appeal.

THE COURT: He took an appeal.

MR. WEINGLASS: And the Supreme Court --

THE COURT: The Supreme Court decided that they wanted him to have the PCR matter that they had previously denied him. Because if you went into the record, when it came down to me it came down with one issue only. And I had the Defendant's attorney in there, and the D.A., Assistant D.A. in my room, and I suggested that they go back, because the D.A. wanted them to present the entire issue at that time. And I said look, the Supreme Court is telling me one thing, I can't deviate from this. I suggest you go back to the Supreme Court and ask them for permission to do this. They did and the Supreme Court denied it. So I couldn't do anything else. I don't consider that reversal.

MR. WEINGLASS: Your Honor, the simple fact is you denied the stay.

THE COURT: I denied the stay at that time and I said send it immediately to the

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Supreme Court, let them decide what they want to do with it.

MR. WEINGLASS: What did they decide?

THE COURT: Well, they decided to send it back for a PCR hearing. That's perfectly all right for me. And then they stayed it because they said that the Defendant would have 30 days to file his petition. And then the Commonwealth has a right to answer and they want me to decide it within 60 days. It's all right with me. Now; if you say I don't have jurisdiction, why are they sending it back to me?

MR. WEINGLASS: The simple fact is you denied the stay, the Supreme Court ordered the stay.

THE COURT: Fine. Because I had no reason to grant the stay at that time. As far as I was concerned, I heard the matter and I could make a decision, which I did within the proper time. If someone else needs additional time, that's up to them to stay it. That doesn't mean anything.

MR. WEINGLASS: You didn't think he needed additional time.

THE COURT: I didn't think so. But if

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the Supreme Court thinks so, fine.

MR. WEINGLASS: Fine, I will rest on that.

THE COURT: Fine.

MR. BURNS: Your Honor, the Supreme Court decided to grant a stay in a case in which you decided not to. If that has something to do with recusal, I don't know.

THE COURT: I don't know.

MR. BURNS: I don't know either.

THE COURT: I don't know either.

MR. BURNS: I think we are finished as well, Your Honor.

MS. WOLKENSTEIN: Could we indicate Judge Sabo laughing on the record.

MR. WEINGLASS: Your Honor, and correct me if I am wrong on this, and this is my last observation: I had been told by those who studied the record that your entire tenure on the bench you have not granted a stay.

THE COURT: I don't know. I probably didn't have a reason to grant the stay.

MR. WEINGLASS: Well, you can't remember one instance where you granted a stay.

THE COURT: Counselor, it is not up to

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me to do that. If the appellate Court needs more time to stay a case, they can grant the stay. The Governor can grant the stay. They could even give him a pardon. It is out of my jurisdiction, it has nothing to do with me.

MR. WEINGLASS: You have the power.

THE COURT: I may have the power, if I think I need it. In other words, if I need to grant that stay because I can't make my decision within the proper time, yes, I could do it. Or send it up immediately to the Supreme Court and they could grant the stay.

MR. WEINGLASS: But you have never done it.

THE COURT: I don't know whether I have or I haven't. All I could say is if I needed the time I would grant it. If I didn't need the time I wouldn't grant it. The United States Supreme Court refuses stays also. Does that mean that somehow they are wrong? The Pennsylvania Supreme Court has denied stays also. Does that mean they are wrong?

MR. WEINGLASS: No, I just know of no other jurist who has an unblemished record. Who has never --

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THE COURT: Counselor, I don't answer for any other judges, I answer only for what I do. I have no control over what other judges do. Each judge must decide for himself.

MR. WEINGLASS: We are only asking Your Honor to answer for what you do.

THE COURT: That's right, that's all I am going to do. I am not going to answer for anybody else. I can't answer for anybody else.

I have given serious thought to this, gentlemen, and I see no reason why this Court should recuse itself. I feel that I was fair to him during his trial and I could be fair to him at this time. For that reason I deny your motion for recusal.

MR. WEINGLASS: Your Honor, I have a copy of the order denying the motion. May I hand it to the Court Crier? A copy to Counsel (handing).

THE COURT: What is your pleasure, gentlemen? Do you want to break for lunch or whatever you want to do.

MR. WEINGLASS: I think we could go on with the writ. I won't be long on that.

THE COURT: All right. Go ahead.

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MR. WEINGLASS: Is Your Honor going to sign the denial of the recusal?

THE COURT: I will do what I have to do, Counselor, don't worry about it. Okay.

MR. WEINGLASS: Yes, sir. It's just that --

THE COURT: I know, Counselor. I will do what I have to do. I have already told you what my ruling is. I will do what I have to do.

MR. WEINGLASS: Now, as the Court has already been told, with respect to the granting of a stay on the date of execution which is set for August 17th, 1995, approximately one month and one week from today, give or take a few days? In that one month and one week that's left there is a great deal of litigation that must occur.

First, the Assistant District Attorney must answer a very lengthy discovery motion which we filed five weeks ago, which they have told us they will not even begin to answer until after today's proceedings. I assume that's going to take a considerable amount of time to answer. Then, under the PCRA discovery must be done by both parties. We are going to have to

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examine the materials they provide us, we are going to have to bring before this Court matters that perhaps they will refuse to provide us. There will have to be hearings on those issues.

There will have to be a full discovery proceeding which is contemplated by the post-conviction statute. And then following that there has to be what is referred to in the case law as a full, fair and adequate hearing on the 19 issues that we raise in our petition. Your Honor's going to have to hear from lawyers, from experts, from witnesses. You are going to have to hear new evidence that's been provided. You are going to hear from investigators. And that full, fair and adequate hearing is going to consume a number of weeks, as I presently estimate. And I haven't even received the discovery yet which I am sure when it is made is going to increase the period of time of a hearing.

This is Mr. Jamal's first post-conviction application. And it's his first attempt to exercise his rights to discovery and to a full hearing. And neither of those events can occur in the remaining five or six weeks to

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the execution date, so a writ to stay the execution is absolutely essential for an indefinite period of time so that these matters could be adequately and properly and carefully considered in many ways.

I will just say -- this is an editorial comment -- from our perception we have reached this point because adequate care wasn't taken in the first place. Sufficient monies weren't provided, resources weren't provided. The case was moved rather quickly.

THE COURT: Well, money was provided, Counselor. Judge Ribner provided money.

MR. WEINGLASS: A hundred and fifty dollars.

THE COURT: Well, that's all we were allowed to do at that time unless they would file a petition that they needed more money, why they needed more money.

MR. WEINGLASS: Well, there were -- constant -- and I don't want to get into an argument on this -- there were constant requests through the months of March, April and May --

THE COURT: Written requests?

MR. WEINGLASS: -- by Mr. Jackson for

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more money.

THE COURT: Written requests?

MR. WEINGLASS: Oral requests.

THE COURT: Well, he has to provide the Court with what he has done with the money that's been allocated to him so far and why he needs additional money. He is supposed to do that in writing so that the Court, the Commonwealth could answer and the Court could make a decision.

MR. WEINGLASS: Your Honor, I don't want to get into arguments over whether or not the Court --

THE COURT: Well, don't tell me it wasn't awarded. Initially Judge Ribner did award this money. And that was under the rules that we operated under.

MR. WEINGLASS: Right, but I don't want to get into an.argument at this point as to whether the Court erred or whether his Counsel erred. But as I pointed out before, either Mr. Jamal's rights were compromised through a rush through for time and lack of resources and -- I am only saying this -- I hope it doesn't happen again. Finally, we are at the point where no

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shortcuts ought to be taken. Things ought to be done properly, promptly, and set before the Court promptly.

THE COURT: Promptly?

MR. WEINGLASS: Yes.

THE COURT: Okay.

MR. WEINGLASS: Mr. Jamal is not asking for a dime from this Court, he is asking no money from the taxpayers of Pennsylvania.

THE COURT: Okay.

MR. WEINGLASS: But he is asking for the least thing to which he is entitled to, which is time to examine the discovery materials, time to prepare his witnesses, time to put on fact-intensive hearings, all of which he is entitled to and none of which can occur in the next five weeks.

Now, Your Honor, five weeks have passed. We put our papers in Court on June 5th, but it was the Commonwealth, or the Assistant District Attorney, that hasn't been able to respond in time.

THE COURT: If he wasn't able to do it, a stay will be considered. Let's hear from the D.A. What is your

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position?

MR. BURNS: Thank you, Your Honor. On the stay question, as to that last comment, I think we've had about half as many weeks to answer these filings as the defense has had years. I think our filings were done in a fairly rapid fashion.

In order to obtain a stay the defense has to show you that there is a likelihood of success on the merits. And it is the Defendant's burden to do that. The PCRA requires the Defendant to plead and prove that each one of their claims is not waived or barred under the PCRA statute. Specifically, the claim wasn't raised at trial or direct appeal. The Defendant has to plead and prove why that waiver is excused. And if it is a claim that was litigated on appeal in the Supreme Court, the Defendant has to show that there is some justification for raising the claim again, and generally such claims can not be raised in the PCRA.

The defense presents us in the stay petition 10 separate items, and every one of them falls under the category of either having

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been raised, not raised at trial, not raised on direct appeal, or having been litigated on direct appeal in the Supreme Court. Such as, well, such that every single one of these claims would be barred on the PCRA.

Now, today in argument the defense has made some rather broad references to ineffective assistance of prior Counsel, either trial Counsel or appellate Counsel. Well, that is not in the stay petition but let's not quibble about it, if they have some evidence that such ineffectiveness took place -- remember, they must prove ineffective assistance -- well, now is the time. Now is the time for them to present witnesses to show that there is a likelihood of success on the merits sufficient for them to have a stay to have this extended litigation of the PCRA petition which Mr. Weinglass has described to you.

Incidentally, mention was made by Counsel that there has to be a delay for discovery. My understanding is that we advised the defense that there wasn't going to be any discovery. The trial is over, and pre-trial discovery is one thing. There is no provision

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for discovery under the PCRA. And I believe that would be our position as to the discovery motion. So there is no need for delaying matters in order for us to provide discovery: We are not going to be providing any discovery.

As far as the stay petition goes: Far from showing that there is a likelihood of success on the merits, it would be fair to say that the stay petition demonstrates the opposite, that there is no likelihood of success on the merits, because the petition fails to show that any of the claims are even cognizable.

Now, the stay could be denied on that ground alone, and properly so. But there is also the question of intentional delay. The Defendant's own filing, his own stay petition indicates that as early as 1989 his attorneys began working on the current PCRA petition. That was six years ago. That is something that the Defendant says in his own petition.

This Defendant is also different, I would submit, than other defendants who may have come before you, who stated that they had been unrepresented up until the point that the death warrant was signed and that they now realize

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that they had to proceed with the PCRA. This Defendant represents that he was represented. In fact, Mr. Weinglass -- and this is part of our filing -- told the Philadelphia Tribune, I believe it was in February, that the defense did not intend to file it's PCRA until the Governor signed the warrant of execution. And sure enough, I don't know how many years it was after the direct appeal, after the cert petition was denied in 1990, which is when the defense was first procedurally able to file a PCRA, nothing was filed until this, well, this past month of 1995. The Governor announced that the warrant had been signed on Friday, I believe it was June 1st or 2nd, and the defense filing took place the following Monday. And it was a stack of papers this thick (displaying). I think this is about 6 inches. This wasn't put together over the weekend. So I think it is clear that this matter was being worked on for a considerable period of time, possibly a matter of years. Certainly what we have on the record now indicates that. Yet the defense literally chose not to file until now, until the warrant of execution was signed, until time had been

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compressed. That's not a basis for granting a stay; that is a basis for denying the stay.

Now, the defense filing offers some excuses for, purported excuses for not acting more quickly. I would like to go over them, and I submit that they are spurious. The first thing it says is that the record was with the Governor. Indicating, I suppose, that they couldn't get a look at it. I just received, no, I received a lot of papers from the defense today for the first time, and one of them indicates that the defense was actually offering to -- you could look at the attachments yourself -- one of them indicates that the defense was actually offering to supplement the record for the Governor. According to the Supreme Court Prothonotary, when they send or certify the record to the Governor they don't send it away, they keep a copy. It was available here in the Supreme Court. There is no indication that the defense asked to see the record in the Governor's possession, there is no indication that the defense asked the Court to see it's copy, no indication that the defense asked former Counsel to see their notes of

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testimony. They certainly did not ask us. That is not an excuse for a delay.

They state that the record was in some way incomplete. They don't explain why the record wasn't in some way complete. And they don't specify why that impeded them from filing the PCRA or why it stopped impeding them when the warrant of execution was signed. Because it's been filed and apparently the record is still incomplete in whatever way it was incomplete before.

They have stated that evidence was suppressed by the Commonwealth. They say that they have evidence to this effect. Well, now is the time to put on the witnesses to establish that, if they can.

They say that they had difficulty getting information from the FBI. Now, you can go through this stack of papers (displaying), Your Honor, and you can try and find the claim that has something to do with the FBI. It's not here. What the FBI has to do with this case I really do not know. This was a Philadelphia murder, investigated by the Philadelphia Police, prosecuted by the Philadelphia District

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Attorney's Office. What does the FBI have to do with the case? Why was it necessary to delay filing the PCRA until they had received information from the FBI? That is totally unclear.

THE COURT: I thought you said they already filed a PCRA.

MR. BURNS: No, they stated that they delayed filing the PCRA because they were waiting to get information from the Federal --

THE COURT: We have their PCRA now.

MR. BURNS: We do now. But this is their reason that they state in their stay petition, their reason for not filing it sooner. Even though they had stated elsewhere that they intentionally didn't file it until after the warrant of execution had been signed.

Finally, they say that prison officials were intercepting the Defendant's mail. I don't know the details about it, I would like to see the witnesses testifying about it. I do imagine that a prison is entitled to look in a convict's mail to make sure that someone is not mailing them a bomb or drugs or a gun or some such thing, but how this interfered

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with the filing of the PCRA petition is not explained. And if it interfered it is not clear why it ceased to interfere with the filing of a petition at the moment the warrant of execution was signed.

So none of these things suggest any excuse for what appears to be a deliberate and calculated delay in filing the PCRA petition, in waiting until the very last possible moment, until the moment that the Governor finally signed the warrant of execution. And of course that took place five years after the original certiorari petition to the U.S. Supreme Court was denied.

Now, the Defendant has said that, one of his arguments is of other defendants who asked for a stay when they are filing the first PCRA: They all got one so I should get one too. And he says that this creates a Constitutional liberty interest. Well, there are two answers to that. First of all, this Defendant is not like all those other defendants. He has indicated that he had representation from as long ago as 1989 in preparing this PCRA. He was not unrepresented as they were.

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And also the Supreme Court in the Dumshad case, which we have cited in our filing, has held that the fact that other defendants who are situated as you are received something does not create any right, no liberty interest, no other kind of right in you, the defendant, in your seeking a similar form of relief.

Now, those are two sound, I submit, bases for denying the stay.

Now, the Defendant has indicated that in order to show the likelihood of success on the merits he is capable of introducing investigators, witnesses. We are not saying they should put on their entire PCRA case, but in order to show that there is a likelihood of success on the merits on at least a couple of claims, on at least perhaps the matter of ineffective assistance, it is their obligation in asking for a stay to put those witnesses on the stand and to put them on the stand today. And I believe the Court should order them to do so in order to make a factual showing that there is a likelihood of success, in order to lay a foundation for their request for a stay. And if they fail to do that, the stay should be denied.

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Thank you, Your Honor.

MR. WEINGLASS: Your Honor, just briefly: It's true what Counsel hinted at in the midst of his argument: No petitioner in the history of Pennsylvania in Mr. Jamal's position has ever been denied a stay. No petitioner who has his first PCRA and has already filed nearly 500 pages of documents, including affidavits, has ever been denied a stay so that he could have a full hearing to make out his claims. If they are suggesting that Mr. Jamal is the first in the history of Pennsylvania to be denied a stay, and Your Honor agrees with it, so be it. But as Your Honor sits there, you know that in 1995 the Pennsylvania Supreme Court has spoken on two cases, neither one of which is cited by the Assistant District Attorney, where petitioners in Mr. Jamal's position, who had not even filed their petitions, yet were granted a stay by the Pennsylvania Supreme Court so that the provisions of the Post-Conviction Relief Act may be exercised by the petitioner before he faces execution. And that one case is the Rolan case -- R-O-L-A-N -- where the petitioner waited not the four years, but he waited six years.

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And when a warrant was signed he didn't wait two days, he waited two months. And when his case was called he didn't have a petition, he didn't have a single paper filed in court (displaying), but he asked for a stay anyway. And what did the Pennsylvania Supreme Court do? They granted him a stay so he could file his petition.

We are so far ahead in this case of where Petitioner Rolan was that Your Honor, I think that Your Honor has no alternative but to follow what the Supreme Court did in the Rolan case.

I thought the Rolan case was out of another county. I was shocked to see that the Rolan case is out of Philadelphia, handled by the District Attorney's office. They have an obligation to tell Your Honor about that case but they didn't.

And, Your Honor, we already discussed -- and I don't want to go back over it again -- last Friday the Supreme Court spoke again, this time ordering a stay when Your Honor didn't. Saying no matter what the delay is here, or any other issue, a person in the State of Pennsylvania, Commonwealth, facing execution,

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who brings before the Court matters that ought to be heard, should be heard before he is executed. How can the Assistant District Attorney take any other position in the name of simple justice and humanity than that? And I will tell you how because it's in their papers. On page 29 is writing that I thought would not see the light of day from a public agency that is so grotesque and cold as to be unbelievable. They wrote -- and I want to quote from their papers -- the death penalty is the law. It is the highest exercise of the State's authority. It should not be lightly disturbed. Defendant would of course contend that he would suffer irreparable injury if he is executed. But this argument assumes that death is an injury. That is improper. And then they go on to say the carrying out of a valid death sentence cannot constitute irreparable injury for purposes of requesting a stay.

To my knowledge, no other public agency of the United States has ever intimated in writing to a court of law that an execution is not an irreparable injury. Their position here is so desperate, is so unprecedented, that

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they have no alternative but to stoop to the lowest level that is conceivable to argue that executing someone does not constitute an injury.

Your Honor, I discussed the Rolan case and I discussed the Fahy case. Both cases out of Philadelphia. Neither case having a petition filed in Court. Neither case, he discusses we haven't shown waiver. Those cases didn't even show that they had an argument. We have outlined 19 arguments, with affidavits, with exhibits, all calling for a hearing. They say it is a waiver. That is interesting they say waiver. Waiver, Your Honor, is a fact issue. Waiver requires a hearing to see if in fact there was waiver. Have we set out any basis to give this Court an understanding that a hearing will show there wasn't a waiver? Yes, we have given you the affidavit of Tony Jackson where he says I didn't even consider issues. Where he said on a death penalty case I didn't even talk to the two eyewitnesses who I called. Not even talked to them and he called them to the stand.

Your Honor knows that. Midway through Veronica Jones' testimony you stopped Tony Jackson and you said to Tony Jackson have you

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talked to this witness, this eyewitness you are calling in the defense of Mr. Jamal. He said no, I have never talked to her. You said well, we'll take a brief recess so you could talk to her in the hall. Is this the way a death penalty case is defended under standards of due process in the United States? You have to have a hearing to hear that out.

We have an affidavit here from Mr. Hawkins, who is seated here at Counsels' table, where he informs the Court under oath that the lawyer who took his appeal to the Supreme Court never read the record. Is that conceivable? Is this how we execute a person? That's why we have to stay. That's why we have to --

THE COURT: When can you start producing your witnesses?

MR. WEINGLASS: Pardon?

THE COURT: When could you produce your witnesses?

MR. WEINGLASS: Your Honor, I can't answer that question simply but I will try.

THE COURT: I hope you would.

MR. WEINGLASS: Under the PCRA

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provisions we are entitled to post-conviction discovery. That they made discovery pre-trial is of no moment.

THE COURT: He says you don't. I will tell you what: Why don't both of you research the law.

MR. WEINGLASS: Your Honor, we've had discussions on the law already.

THE COURT: Not discussions. You want me to rule on it. You research the law. You Xerox a case that satisfies your position.

Commonwealth, do the same thing. Okay. And I will hold it under advisement.

MR. WEINGLASS: On the question of whether or not --

THE COURT: Everything. As far as the stay is concerned too.

MR. WEINGLASS: We have already, Your Honor, given this Court over 300 pages.

THE COURT: I know you gave me 300 pages, but I would like to hear something under oath for a change.

MR. WEINGLASS: You have 13 affidavits and 47 exhibits.

THE COURT: I would like to hear that

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from the witness stand here under oath so that each side can cross-examine. All right?

MR. WEINGLASS: That's what we are asking for.

THE COURT: I was asking you when can you start that.

MR. WEINGLASS: We can start that process --

THE COURT: Tomorrow? Today? Tomorrow?

MR. WEINGLASS: No, Your Honor, we are in this position because of the precise thing you are suggesting: The Court's rushing when there is no need to rush.

THE COURT: Counselor.

MR. WEINGLASS: When we have to have an opportunity to hear --

THE COURT: I am asking you. I mean he says there is no, he said you don't have a right to discovery. I am giving you an opportunity to research the law and give it to me. If you are right I will rule with you. If the Commonwealth is right then I will rule with them. I am giving you time to do that. All I am asking you is when do you think you could

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begin putting some witnesses on this stand.

MR. WEINGLASS: I will answer that after I see what they turn over in discovery after Your Honor rules in our favor that we are entitled to discovery. And I will answer that.

THE COURT: Okay, I will give you time to research the law. How much time do you need?

MR. WEINGLASS: To research the law on the issue of discovery?

THE COURT: Yes.

MR. WEINGLASS: We will probably need at least 10 days.

THE COURT: 10 days?

MR. WEINGLASS: 10 days.

THE COURT: 10 days? We are only in Pennsylvania: I am not researching the law for the whole 50 states.

MR. WEINGLASS: Your Honor, to research the law, to answer our first papers, just two papers --

THE COURT: Not --

MR. WEINGLASS: -- the Assistant District Attorney took five weeks. That's why we are so late. And Your Honor set this hearing down for July 24th. We are here early.

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THE COURT: I didn't set that down, the Court Administration did.

MR. WEINGLASS: We are here early because we insisted on it, that's why we are here early.

THE COURT: That is fine. That's what I am trying to do, to get this matter resolved.

MR. WEINGLASS: We are here early because we wanted it.

THE COURT: Okay.

MR. WEINGLASS: And we will proceed if you will give us enough time to allow us to prepare the case. 10 days, Your Honor.

THE COURT: How much time do you need?

MR. WEINGLASS: You gave them five weeks to answer our papers.

THE COURT: I didn't give them anything.

MR. WEINGLASS: They got five weeks.

THE COURT: Okay.

MR. BURNS: May I respond, Your Honor?

THE COURT: Yes, sure. How much time do you need to research the law on that issue?

MR. BURNS: I submit that discovery is not at all an issue in the stay matter. The

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defense has represented to you that they have evidence right now, that they have investigators, that they have witnesses who will testify the Commonwealth suppressed evidence. What do they need discovery for? This is the basis for the stay, Your Honor. We are not talking about litigating the PCRA. They have to make a good faith showing that they could prevail on the merits in order to get a stay in the first place. And if as they say they have such evidence it should be eminently possible to put the witnesses on the stand right now.

So there is no need for discovery. They claim that they have this evidence already, not that we need to give it to them.

MR. WEINGLASS: We claim, Your Honor --

MR. BURNS: Can I continue, Your Honor? I think I let Mr. Weinglass speak, I have a few more things to say.

THE COURT: Gentlemen, take it easy.

MR. WEINGLASS: Sorry. I thought he was gathering his papers and leaving.

THE COURT: Go ahead.

MR. BURNS: Mr. Weinglass once again

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misrepresented something: He stood and read to you what I had written and he read it incorrectly. I wrote that the death verdict is an injury, and that is in quotes, i.e., that it is improper. Meaning that for purposes of looking for a stay, you have to show that the imposition of the sentence is unlawful. Not simply that there will be a sentence imposed. The imposition of a lawful sentence under the law is not improper. And it's not, legally speaking, an injury.

The Rolan case which was mentioned by Mr. Weinglass was a situation in which the defendant was unrepresented up until the time that the warrant of execution was signed, the exact opposite of the situation that we have here. In the Duffy case the Supreme Court denied a stay. And that was, that ruling was affirmed by the Third Circuit. So it is not as though everyone who comes in front of the Supreme Court gets a stay just for the asking.

The situation, the reference to Mr. Jackson in not talking to a witness: Mr. Jackson said on the record the Defendant wouldn't tell him who the witnesses were. He

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was finding out who the witnesses were when the Defendant revealed that information to him just as they were taking the stand. As a matter of fact, there was 15 character witnesses, not one of which was given to the Commonwealth as required by the discovery rules because the Defendant refused to reveal the names to the Commonwealth or Mr. Jackson.

So it is not surprising that Mr. Jackson didn't talk to the witnesses. What that has to do with the need for a stay is difficult to assess without something coming from the witness stand. The Defendant said they have the evidence now. They should be ordered to present it now.

Thank you, Your Honor.

MR. WEINGLASS: Your Honor, with respect to applications for a stay, what they are saying is this: If the verdict is legal, then the death penalty is not an irreparable injury. But they are saying let's not have a hearing to see if the verdict is legal. Let's have the death penalty first and the hearing later.

THE COURT: That's why he wanted to

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have the hearing now. I am asking you when could you bring these witnesses in that you say that you have?

MR. WEINGLASS: We would be prepared --

THE COURT: Tomorrow?

MR. WEINGLASS: We could do it --

THE COURT: Today?

MR. WEINGLASS: Within 60 days after we get discovery.

THE COURT: No.

MR. WEINGLASS: After we get discovery from the people --

THE COURT: Forget it, Counselor. I will take it under advisement but you will have to supply me with some cases on that. I just can't, you just can't ask for 60 days.

MR. WEINGLASS: Pardon?

THE COURT: You can't just ask for a 60-day stay.

MR. WEINGLASS: I am asking Your Honor for discovery.

THE COURT: Counselor, and I am telling you what I want. I want from you and I want from the Commonwealth Xeroxed copies of

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cases that support your views as to whether you are entitled to discovery or whether you are not. He is saying that you have to at least put some witnesses on there to show that a stay would be justified. And I am asking you when can you do that. And can you do it tomorrow? Can you do it Friday? Can you do it Monday?

MR. WEINGLASS: Mr. Hawkins, Your Honor.

MR. HAWKINS: Your Honor, if I may: I have litigated death penalty cases across the country. The standard for a stay as I understand it, from Barefoot versus Estelle, which is a case from my old office the NAACP in the Supreme Court, says if you can show that there is a reasonable question as to the merits of the issues -- not are issues, not are issues more probable than not, but reasonable jurists could differ on the merits of particular issues -- that is sufficient for a stay in the first instance. I know of no hearing that I've ever had or that exists in the law -- and we can certainly supply Your Honor with law as to that in three days -- that says that in order to get a stay of execution that you must put on

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witnesses. That is unheard of, Your Honor. If the issues themselves are sufficiently meritorious, that in and of itself is enough for a stay.

THE COURT: How is the Court going to know whether it is meritorious or not?

MR. HAWKINS: Your Honor --

THE COURT: Only by somebody who takes the stand and takes an oath and is cross-examined by opposing Counsel.

MR. HAWKINS: Your Honor, that gets into the factual substance of the petition itself. I can't bootstrap a request for a stay of execution into a consideration of the merits of --

THE COURT: Well, what are you --

MR. HAWKINS: -- an actual factual resolution.

THE COURT: You are saying the stay is automatic.

MR. HAWKINS: As long as there are meritorious issues.

THE COURT: How do I know that unless somebody takes this stand and testifies under oath, that's what I am saying, and is

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cross-examined.

MR. HAWKINS: Your Honor, if the statements as presented in the habeas petition, if true -- and that's the law; and, Your Honor, I could supply you with law on that in three days -- taking the petition on it's face, if that raises questions that reasonable jurists could disagree on, the law is clear that a stay of execution is warranted. Your Honor, I could give you law on that in a few days.

MR. GRANT: May I respond, Your Honor?

THE COURT: Yes.

MR. GRANT: For six years and some months, eminent Counsel have been preparing a submission of 500 pages where they make what, if it were not encased in a Court of law and legal proceedings, would be considered nothing less than slander and libel. They have been engaged in public relations, broadcasting, publication, verbal attacks, banners hanging from City Hall; and now they claim to have 47 affidavits, declarations and exhibits, and that shows on it's face that there is merit to these claims.

Well, I would suggest to you that we wouldn't be asking for evidence to be presented

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from the witness stand subject to cross-examination but for the fact that after having read their affidavits, their moving papers and submissions, and looked at what actually happened at the trial, there's no comparison between the two. It is as if we are talking about two entirely different events in the course of human history here.

Now, if their representations comported with the record you wouldn't need testimony. But it seems to me -- and I would submit to Your Honor, respectfully, it should be obvious to you -- that these representations can not be relied upon, for if they were able to be relied upon a stay should be decided on the papers moved by the parties. I suggest to Your Honor that these are disingenuous, intellectually dishonest. They misrepresent, misstate and misquote to the nth degree.

As a result of that, I think the only recourse for you is to say Counselor, with all due respect, come on, I don't want to hear it, you made some allegations, now is the time to put up or shut up -- and that's what I suggest we do here.

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MR. WEINGLASS: Your Honor, let's talk about litigation. We are in a Courtroom. Litigation is where we put into the Court a document. In the ordinary course of litigation the document is answered point by point under oath. The Court then receives both sides' documents, reviews it, enters orders on discovery if they are necessary, and a hearing is set. That's litigation in death penalty cases. That's absolutely essential litigation. You don't have one side presenting you with affidavits and the other side standing up and saying we 're not answering those affidavits because we think they are false, we think that they are not true, and we think they are frivolous and that should end the matter. I think I'm dreaming. I am in a Court of law.

THE COURT: I think --

MR. WEINGLASS: This isn't done anywhere.

THE COURT: I think you ought to put them on the stand.

MR. WEINGLASS: No, I think we ought to get a response. Your Honor, no --

THE COURT: I don't care whether they

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respond or not. I still think we should put them under oath so that the Court could make an honest decision.

MR. WEINGLASS: No, the Court makes an honest decision after it gets both sides in writing, studies both sides.

THE COURT: No.

MR. WEINGLASS: And then enters an order for discovery.

THE COURT: I don't want to decide what they are going to answer you and they are going to give me something else. I would like to hear from this witness stand whatever witnesses you want to present. And can you do that as of tomorrow? Friday? No later than Monday I want to --

MR. WEINGLASS: Your Honor, the local rules require an answer.

THE COURT: No, it does not require an answer. It says they don't have to answer, it is presumed to be denied.

MR. WEINGLASS: 3O days after the petition is filed there will be an interim common listing. And then it goes on to say how things proceed, exactly as I suggest.

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THE COURT: No, it says they may answer. They don't have to answer.

MR. BURNS: Actually, Your Honor, we responded in writing.

THE COURT: Did you respond in writing?

MR. BURNS: We responded in writing to the stay petition, to the recusal petition, answering all of the substantive claims to the extent they concerned the record as it stood.

Now, there are two classes of claims. There are claims that are based on the record, which you could go to the record and look at it and see if they have any substance. And there are claims in which they say we have new evidence, we have investigators, we have witnesses, we have them and we can prove that the Commonwealth suppressed evidence.

Well, we are not asking for a full-blown PCRA hearing. We are not asking the Defendant to prove each and every one of his claims. But he has to make a showing, he has to put at least a couple witnesses on the stand that shows that there is some substance to these allegations.

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MR. WEINGLASS: Your Honor, we will do that if they could provide Your Honor with law that says we must do that. I challenge them to do that. If they could provide the Court with law to back up that statement we will do it.

THE COURT: I don't care whether he has or not. But I feel in the interest of justice we ought to have somebody come in and testify under oath.

MR. WEINGLASS: And in the interest of justice, that proceeding is had after both sides have submitted to the Court in writing their positions and the Court has examined the evidence.

THE COURT: No, because I am telling you they have already answered it.

MR. WEINGLASS: They haven't answered the petition.

THE COURT: The PCRA --

MR. WEINGLASS: They haven't answered the petition.

THE COURT: He is not talking about the PCRA, he is talking about the stay.

MR. WEINGLASS: Yes, but as Mr. Hawkins points out, the law is you do not

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produce evidence on the stay. What you do is if the written submissions that are in the petition raises reasonable questions the stay is granted.

THE COURT: Well, I don't know that you could say that's reasonable. You could get anybody, I guess, to sign something. I would like to have them come into Court and testify under oath.

MR. WEINGLASS: You are saying these affidavits are all false?

THE COURT: Well, I don't know. All I am saying is I would like to have them come into Court and be sworn and be cross-examined by the other side so we could have some idea.

MR. WEINGLASS: As Mr. Hawkins pointed out, that procedure which Your Honor just described is simply --

THE COURT: What you are saying, then I don't know why you filed a motion to stay. It should be in the statute itself. It should say there is an automatic stay, period. If it says that then I have no problem.

MR. WEINGLASS: Your Honor, the 1995, where there wasn't even a petition

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filed --

THE COURT: I know, that's the problem, there was no petition filed and they had to give him time to file it. You already filed your petition. You have your petition here. You have your answer to that petition.

MR. WEINGLASS: We don't. They said they never answered the petition.

THE COURT: They only answered the stay. Oh, the stay.

MR. WEINGLASS: Yes.

THE COURT: Okay.

MR. WEINGLASS: Now I am saying they should answer the petition, then the Court must get their answer.

THE COURT: When can you file an answer to his PCRA?

MR. BURNS: Respectfully, that is not the issue, Your Honor. The issue now is the stay.

THE COURT: I know that.

MR. BURNS: And I think it is absolutely astounding that we are asking the defense to produce the evidence that they say they have had for these many years about the

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Commonwealth, among other things, suppressing evidence. And I would like to hear one or two witnesses.

Why are they refusing to present witnesses? I will tell you what the answer is. The answer is that this is all about delay. This is all about pushing off the time for decision so that the Court will be forced into a situation that they have been trying to force the Court into in which it will have to grant a stay or else face the prospect of having the execution take place without any adjudication or any ruling on the merits. They say well, 60 days to present witnesses on allegations that have already been made in detail, allegations from witnesses and affidavits. If you can get an affidavit you can certainly get the witness in here to testify to it. Otherwise, it is just a piece of paper, it is a piece of hearsay, it has no standing in a courtroom.

THE COURT: Well, let me ask you this. They filed a petition, a PCRA. Are you compelled to file an answer?

MR. BURNS: The rules are not that we are compelled to file an answer. If the Court

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directs us to file an answer, or we may choose to file an answer. But we are --

THE COURT: If you don't it is presumed to be denied.

MR. BURNS: It is presumed that all of the factual averments are denied if no answer is filed. Yes, that is what the rules say. So there is no obligation to file an answer to a PCRA petition; it is the factual averments therein are presumed to be denied if no answer is filed.

Now, in the event a stay were granted, well, of course we would file an answer to the PCRA petition. We would go ahead and litigate it. But the question now is has the Defendant made a showing that he is entitled to a stay. And this they refuse to do. They refuse to produce even one witness to show that there is some substance to the remarks or the statements that they have been making, which on their face, Your Honor, in light of the record, appear to be rather outrageous.

Now, if they had proof to back up these statements they should produce it. That's all our position is. I think it is amazing that

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they should come in here and make these statements --

THE COURT: That is all that I am asking them to do.

MR. BURNS: -- and refuse to produce the evidence that they claim to possess. That is all we are asking for. One or two, maybe three witnesses, to lend some substance to this so that there was some justification for the stay.

THE COURT: Why don't you do that, Counselor, so we could have something on the record.

MR. HAWKINS: Your Honor, with all due respect to yourself and the District Attorney's Office's position, that is simply not required by the United States Supreme Court. The Court made clear that as long as a petitioner has a petition and states, just as in a civil proceeding, facts which are to be taken as true on the face of the document, absent an answer to the contrary --

THE COURT: Well, he answered it: They said it's fabricated. They have answered it. They say --

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MR. HAWKINS: We have, Your Honor, in answer --

THE COURT: Why can't you put on a few of those witnesses?

MR. HAWKINS: Your Honor, that is not our obligation at this point. Our obligation is merely to supply you with a petition that states on it's face allegations which if true would entitle the petitioner to relief. That's all our obligation is by the United States Supreme Court.

Your Honor, the Assistant District Attorney has not cited law. Your Honor, I am citing law to you.

THE COURT: I don't want you to cite me law; I want you to give me a Xeroxed copy of the case.

MR. HAWKINS: Law is what this Court is about.

THE COURT: Give me a Xeroxed copy of the case so I could read it and interpret it. I don't want to take your interpretation; I don't want to take the Commonwealth's interpretation.

MR. HAWKINS: Your Honor, by Monday we will supply you with United States Supreme Court

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case law.

THE COURT: Why would it take to Monday? Why can't you get that to me by tomorrow? You say you already know the case. All you have to do is push it in a machine and give me a Xerox copy.

MR. HAWKINS: Friday.

THE COURT: Why do I have to wait until Friday or Monday? You could put that information in the machine and you could Xerox a copy.

MR. HAWKINS: We will give it to you. When would Your Honor like it?

THE COURT: Tomorrow. Somebody ought to have a copy.

MR. GRANT: How about today, Judge? If he has the case we could read it today.

MR. WEINGLASS: Why not by one o'clock?

THE COURT: Well, we haven't had lunch yet.

MR. WEINGLASS: Your Honor, this is what happens.

THE COURT: All I am asking, Counselor: At this point you are asking me to

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make a decision. I want to make a right decision and I want to give you an opportunity to present me cases. I want to give the Commonwealth an opportunity to give me cases. What's wrong with that? Can you do it today? Can you do it tomorrow?

MR. GRANT: Your Honor --

MR. HAWKINS: Your Honor, let me suggest this. Why don't we take maybe an hour-and-a-half lunch break in which both sides --

THE COURT: No.

MR. HAWKINS: We would have to confer on it.

THE COURT: Counselor, I can't have everybody conferring and then telling the Court how to run the Courtroom. You know, let's be practical about this. I am willing to give you time. If you are saying that you can't have the cases to me until tomorrow, but then I have to read the case. Why don't you get it to me today sometime. Let me read the case.

MR. WEINGLASS: Let me put this request in context, it's proper context. This Court set this hearing down for July 24th,

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THE COURT: I didn't set it down for July 24th.

MR. WEINGLASS: A Court did here.

THE COURT: Somebody in Court Administration evidently did that.

MR. WEINGLASS: That's 12 days from now.

THE COURT: Yes.

MR. WEINGLASS: We, the defense, the Petitioner requested that it be 12 days earlier.

THE COURT: And we granted that.

MR. WEINGLASS: It was granted.

THE COURT: Right.

MR. WEINGLASS: We are trying to move this case faster.

THE COURT: Well, you are not moving it faster if you are telling me you can't get the cases to me today.

MR. WEINGLASS: But we are not trying to move this case the way it was moved the first time.

THE COURT: It was not a question of moving it. Counselor, you are citing law to me. You should be able to get those cases. As a matter of fact, you should have those cases now

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and say Judge, here is a Xerox copy of the case, in your leisure read it, it is right on point.

MR. WEINGLASS: Your Honor, what we did is we gave this Court -- and I hope the Court read it --

THE COURT: I know that, I don't want --

MR. WEINGLASS: We gave this Court our position in writing.

THE COURT: I know what your position is. I like to have Xerox copies of the cases. I like to read them myself. I like to interpret them to see actually what the Court is saying.

MR. WEINGLASS: On June 5th we gave the Court over 25 cases.

THE COURT: No, I don't mean give me cases, I am asking you --

MR. WEINGLASS: That was five weeks ago.

THE COURT: Counselor, I am asking you for Xerox copies. I am not going to go looking those cases up. That is your responsibility. Give me a Xerox copy and I will take them home with me and I will read them overnight. Why can't I do that?

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MR. WEINGLASS: We will give you a Xerox copy of all those cases plus the Rolan case where the Pennsylvania Supreme Court granted --

THE COURT: Give me all the cases you want to, Counselor. I will be glad to read them.

MR. WEINGLASS: Despite the fact it is out of this Office, we will provide you with those copies which you should have been provided by the District Attorney's Office.

One last thing, Your Honor, to show you how things have been stood on their head here and what is true has been turned around upside down. The question has been made and raised here that the Petitioner had since 1989 to come into this Court.

THE COURT: Counselor, I already heard that. We went over that. I don't want to hear that again, please, or we will be here forever.

MR. WEINGLASS: The United States Supreme Court denied him on July 10th, 1991 his petition. That was four years ago. And neither Rolan nor Fahy moved as quickly as Mr. Jamal. And he moved with lawyers --

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THE COURT: Fahy moved fast.

MR. WEINGLASS: Not as fast as this. Mr. Rolan waited six years. But, Your Honor, I want to point this out: They are saying that we waited until the Governor signed a warrant before we filed our papers.

THE COURT: Counselor, I don't care what they are saying. They are saying many things, and all I want to get from you is when could you get these cases for me to read?

MR. WEINGLASS: Please hear me out as to what happened. What happened is this. On April 2lst, 1995 I wrote the Governor of the Commonwealth of Pennsylvania and I informed the Governor in April of 1995 that I was preparing my papers for a petition and that I was having some difficulty because the Court reporters had lost, and they are still lost, four pre-trial hearings in this case. So the full record --

THE COURT: By this Court or by somebody else?

MR. WEINGLASS: By Judge Ribner.

THE COURT: Okay. Well, I have no control over that.

MR. WEINGLASS: I am not pointing a

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finger of blame, I am just reciting the facts.

THE COURT: I guarantee you I would have the notes.

MR. WEINGLASS: Right. I am just reciting the facts. The Court reporter wrote me a letter saying we have lost Mr. Jamal's pre-trial notes.

THE COURT: I never lose my notes.

MR. WEINGLASS: Right. I wrote the Governor and I said Governor, I am preparing this petition, two months before he signed the warrant, and I need your help and I am willing to work with you, let's get these notes so that when Mr. Jamal's petition is presented in Court it will be presented in it's entirety. The Governor was on notice in April that we were preparing the petition. On June lst, before the Governor signed the warrant, I went to S.C.I. Greene and I wrote them a letter in which I said I am coming to see Mr. Jamal -- this is before the Governor signs the warrant -- to see Mr. Jamal so he could verify the petition we are about to file. On June 1st the Harrisburg paper reported that Mr. Jamal was going to file his petition on June 5th. What happened: The

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Governor moved that night, knowing we were coming into Court, to sign the warrant in an unusual procedure at night, so that a warrant would preempt our coming into Court and put us in the position and allow them to argue the way they are arguing now so that we would be denied a stay. That's what happened. We didn't wait on the Governor. The Governor knew we were coming and he moved just before, the last business day before we came to Court to preempt this, Your Honor.

THE COURT: Counselor, I can't, I can't decide why the Governor did what he did. Whatever he did he did.

MR. WEINGLASS: We provided the record. Do we have copies?

THE COURT: Prior Governors haven't done anything.

MR. WEINGLASS: I have the letter to the Governor. I have the letter from the Court reporter.

THE COURT: Counselor, I can't do anything with that. Let me decide the issue.

MR. WEINGLASS: Could I have it marked as an exhibit?

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THE COURT: Let me decide what I have to decide here. I can't decide why the Governor did what he did. Whatever he did he did. And you could go back to him, he might even give you a pardon, I don't know. But that's up to the Governor.

MR. GRANT: I assume --

MR. WEINGLASS: That kind of remark.

THE COURT: Well, it is true: He has that authority.

MR. WEINGLASS: That's what pervaded the trial.

THE COURT OFFICER: Court is in session.

THE COURT: No, it is --

MR. WEINGLASS: That is the kind of flip remark that is inappropriate.

THE COURT: No, it is appropriate. Because I can't control the Governor. He has those powers. And there is nothing wrong with that. He could do that. He could stay it, he could commute it. He could do everything if he wants to: He is the Governor. And there is nothing wrong with that. And I am not saying he can't do that. Of course he can.

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MR. WEINGLASS: The Court sits here patiently while they explained why we delayed. When I tried to answer it by saying we didn't delay it --

THE COURT: All I am asking from you at the present time: When could you have these Xerox copies of the cases to me so I could read them? Tomorrow?

MR. WEINGLASS: Your Honor, I would like to have today these documents marked as an exhibit which I think an appellate court ought to have. May they be marked?

MR. GRANT: Your Honor, I object. And I object because this is nothing more than legerdemain, slight of hand. You asked for an answer, can you give me the case. I want to argue about six years ago. Can you give me an answer, when can you give me the case. I want to file these documents. I would ask, the vast majority of their witnesses on affidavit are right up Broad Street. Right down the street here. It is not going to take 60 days or six days to get them in here. I would suggest that after we file, after they submit whatever cases they have, Your Honor, they put their witnesses

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on the stand so we can examine them, Your Honor can judge credibility and make a ruling on the stay. Then we could get on with the PCRA.

THE COURT: Okay.

MR. WEINGLASS: We will provide you with case law indicating that is precisely not the law of this State or any state.

THE COURT: That's right, I am asking you --

MR. WEINGLASS: We will provide you that tomorrow.

THE COURT: Okay. And I said, Commonwealth, if you have anything, Xerox it for me, please. You don't have to make a big brief. Just Xerox the cases, I would be glad to look at and read the cases and make a decision. Then we will decide where to go from there.

MR. WEINGLASS: Your Honor, is Your Honor deciding to grant the stay?

THE COURT: I am taking it under advisement. I am giving you an opportunity to present me the cases. I am not going to make a decision on the spur of the moment. He is not being executed tomorrow. If he was I would have to make a decision right today. But I am taking

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it under advisement. I am giving you an opportunity.

MR. WEINGLASS: Okay. Now we are going to give the Court the law within a day. When will the Court give us his answer?

THE COURT: Well.

MR. BURNS: Your Honor, I object to that. The Defendant has no right to be putting pressure on you as to when you are going to give the answer. Again I want to stress --

THE COURT: I will do it as quickly as possible. Go ahead.

MR. WEINGLASS: As quickly as possible.

MR. BURNS: I want to stress what the issue is. The issue before you is whether you have discretion to order the Defendant to present some evidence to back up factual claims he is making.

THE COURT: That's the cases I want him to submit to me.

MR. BURNS: The reason is that in a part of the argument I thought I heard reference to the defense already having given you cases

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and their intention to give you copies of a, I suppose a plethora of cases. I want it to be clear that the issue is whether you have the discretion to order the Defendant to produce evidence to back up his claim that he needs a stay. That's what I think the issue is. Thank you, Your Honor.

THE COURT: Okay.

MR. WEINGLASS: And we will provide that tomorrow. But will the Court give us a Court date when we are to come back?

THE COURT: Well, if I rule that you have to present some evidence, I would hope you would be able to do that by Monday.

MR. WEINGLASS: No, as I understand it, the ruling the Court will make is whether or not the Court will grant the stay after reading the cases indicating that a stay ought to be granted, Judge.

THE COURT: Counselor, I will reserve decision on the stay. Okay.

MR. WEINGLASS: And we don't have a Court date?

THE COURT: We have a Court date for Monday if you wish.

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MR. WEINGLASS: Monday.

THE COURT: Is that fast enough for everybody?

MR. GRANT: Friday.

MR. BURNS: We would respectfully suggest Friday since time is of the essence.

THE COURT: Time is of the essence, it is all right by me. You could get the cases to me tomorrow and I will rule on it Friday.

MR. WEINGLASS: Okay, and the ruling will be whether or not a stay ought to be granted.

THE COURT: The ruling will be whatever the Court rules. I don't know at this time. If you could read my mind better than I can then fine. But I can't. I am giving you time to give me the cases. Let me read the cases to decide.

MR. BURNS: If it please the Court: My understanding is that the Court will rule on whether or not it will order the defense to present witnesses.

THE COURT: Well, that too, that too.

MR. GRANT: That will take place, as I understand it that will take place on Friday, if

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Friday is the day.

THE COURT: If I so decide that they have to present witnesses, I will give them to Monday to present whatever witnesses they have.

MR. BURNS: Whatever you decide.

THE COURT: Okay.

MR. WEINGLASS: Your Honor, one last thing. Mr. Jamal is here, his family is present, could he have an opportunity to just briefly talk to his family?

THE COURT: Well, you have to take that up with the Sheriff.

MR. WEINGLASS: I meant here in the Courtroom.

THE COURT: You have to take that up with the Sheriff. They have, they have jurisdiction in this Courtroom as far as security. You have to take it up with the Sheriff. Whatever the Sheriff will allow is all right by me.

MR. WEINGLASS: It is okay with the Court.

THE COURT: Whatever the Sheriff wants to do, yes. We could recess, then.

MR. GRANT: May we be excused, then?

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THE COURT: Until Friday morning.

MR. WEINGLASS: Friday morning.

THE COURT: Yes.

MR. GRANT: Thank you, Your Honor.

THE COURT CRIER: All parties remain seated.

THE SHERIFF: Remain seated until the Defendant leaves the room.

- - - - -

(The hearing was adjourned at 11:48 p.m.)

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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

Date

The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.

Judge