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 14, 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 10:20 a.m. the hearing was convened
in the presence of the Court and the attorneys.)

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THE COURT: Good morning, everyone. For the benefit of any of the visitors who were not here on Wednesday, I just want to caution you that the Court during this session will not tolerate any outbursts, any screaming, or anything of that nature. If it happens you will be removed from the Courtroom and not be permitted to re-enter. You must maintain proper decorum in this Courtroom.

MR. WEINGLASS: Your Honor, good morning, Your Honor. I want to start by bringing us back to Wednesday, July 12th, when the Court requested of all Counsel to provide the Court within 24 hours, the next business day, July 13th, with case precedent on the issue of whether or not the Court should at this time grant a stay and what are the standards that are to be applied.

In addition to that, on the following day, Wednesday, I believe at approximately ten o'clock in the morning, I received a call from

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the Court's chambers requesting that we also provide the Court with case citations on the issue of what if any discovery ought to pertain in this post-conviction proceeding.

As I understand it, we did yesterday, prior to 4:00 p.m., provide this Court with the cases that we contend stand for the proposition that a stay must be granted at this point. We gave the District Attorney's Office a list of our cases as we were advised to do before the close of business day.

I left my office last night at about 7:30 and I hadn't received anything by that time from the District Attorney's Office. It wasn't until much later that evening, I believe it was about ten o'clock, that I received word from Miss Wolkenstein that she had received materials from the District Attorney's Office; and I went back to my office and at 10:30 I found the materials that the District Attorney's Office was asked to provide us.

In addition to that, I found a 33-page document which I hadn't anticipated with respect to their answer on our discovery.

Now, and I haven't had an opportunity

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as yet to completely review that document. The point I am trying to make at this point is we are rushing under very strict deadlines, after the District Attorney has had four weeks to file written responses to our two motions, recusal and stay, we've had 24 hours, and then even less than that -- to file on the stay -- and less than that to file responses on discovery.

I just make the observation prior to my argument that this is hardly the orderly proceeding that is contemplated by the case law with respect to a capital case. We simply can not be in a position representing Mr. Jamal where the Assistant District Attorney has four weeks to respond to our papers and we have 24 hours to provide the Court with case law. And in addition to that, we are given another request for additional case law on a separate issue, and get from Counsel for the other side, the Assistant District Attorney, their papers at 10:30 at night before we are coming into Court to argue. This is hardly the way we should be proceeding on a death penalty case. And I am prepared to proceed and I am willing to proceed but I just want to point out for the record that

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we are doing this under an incredible pressure of time.

THE COURT: Counselor, I said to you I took it under advisement, so don't worry about it. I will give you all the time you need. Go ahead.

MR. WEINGLASS: Now, Your Honor, with respect to the first issue, and that issue is a very important issue, whether or not this Court should entertain and grant a stay of the warrant for execution, now set approximately five weeks from now, for August 17th, 1995: We have provided the Court with the case law that indicates to this Court that there are standards to be applied at this point on the question of whether or not a stay ought to be granted. To be sure, and I think both sides agree on this, that there is no case law in Pennsylvania up to this point in time that deals with that precise issue. So we must look to the Federal case law, because Federal case law, as Your Honor knows, in many ways is incorporated in the scheme of the Post-Conviction Relief Act of the State, the Commonwealth of Pennsylvania. So we look to the Federal case law.

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And we have provided this Court with the seminal case on this issue, which is the case cited by Mr. Hawkins when we were here on Wednesday, the Barefoot case, decided by the United States Supreme Court in 1983, an opinion written by Justice White, a Justice not known for his over-sympathetic feelings towards persons who are filing post-conviction proceedings, but nonetheless a very long, carefully considered opinion on what standard should apply to all jurists who are in Your Honor's position this morning: Facing a man who has an execution date and deciding the very weighty and important question of whether or not a stay ought to be granted so that the Court may in an orderly process consider the claims that are before you.

Well, what does the Barefoot case say? The Barefoot case says very clearly that there is a single standard, as I understand it, which is annunciated in that opinion. And the standard is if any of the claims, any one of the claims asserted by the petitioner in the petitioner's papers is a non-frivolous claim, then a stay ought to be granted. Why? It ought

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to be granted so that under the shadow of death, that petitioner will have the opportunity to present in a proper court of law, in a proper fashion, the support for his or her claims. And so there has not been a case since Barefoot which alters that standard, that a stay ought to be granted when any one claim asserted by the petitioner is non-frivolous.

Now, what is non-frivolous? Well, well, that opinion indicates that even if a petitioner makes a colorable claim, based on information and belief, not even evidence, that claim will be sufficient to trigger the stay, if an examination of that claim indicates it's non-frivolous. You do not need affidavits, you do not need evidence. All you'd have to do is make an assertion on information and belief, and if it's not frivolous it's enough for the stay.

Well, we have asserted in very weighty documents 19 claims, and we have given this Court affidavits, sworn statements, and we have provided 47 exhibits. And unless --

THE COURT: Counsel, is that in your PCRA?

MR. WEINGLASS: Yes.

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THE COURT: Okay, go ahead.

MR. WEINGLASS: And unless Your Honor finds all of them, every one of them to be frivolous on it's face, a stay must be granted. And that is clearly the state of the law, because that's the only way Your Honor can litigate this case. If there is a stay and then we proceed in an orderly fashion to present evidence, there is cross-examination, there is counter evidence, this is a determination made by Your Honor, that is the only way we can proceed. There was no other way that the Barefoot case can conceive of us moving at this point unless a stay is granted.

Now, what do you look at? I have already indicated this. There is one case we cited out of the Eleventh Circuit, the Bundy case: B-U-N-D-Y. And in that case what the Eleventh Circuit said is when Your Honor is faced, as Your Honor is, on whether or not to grant a stay, you look to the petition, the face of the petition. If on the face of the petition claims are asserted that are not frivolous, you grant the stay. You don't do what Your Honor -- and I say this respectfully -- suggested or

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hinted at on Wednesday: That is you don't call for evidence. You don't call for testimony. You don't call for a hearing. You read the petition. And if on the face of the petition the claims are not frivolous, a stay has to be granted.

And there is another case dealing with that issue which we have given to the Court. And that is the Blackledge case, and the Wesson case. Now, what did they say, what standard? When you look at this and you read it, how do you know these are not frivolous? How do you know that? Well, you apply a standard which was set forth in the Blackledge case, 1977 opinion of the United States Supreme Court. And the standard is what? The same standard you would apply when one party asks this Court to make a dismissal of the petition. And the standard is what? The standard is the matters alleged are presumed to be true, or accurate. And on that basis you would find on reading our petition that there is asserted non-frivolous claims.

So I urge the Court to read the petition, to read the 19 claims, the memorandum of law. I know it's a lot. It's over 300

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pages. And to see that there is at least one -- that's all we need to show -- claim that's not frivolous.

And you have here, Your Honor, 19 claims asserted. Not even like in the Barefoot case where the claim was -- I'm sure Your Honor has read that case -- that psychiatric testimony in the mitigation phase of that case was wrongfully admitted. That's an issue to be sure, but it's nothing compared to the issues that we are raising. We are raising the core issues of Constitutional litigation in death penalty cases. We are raising Brady, we are raising Batson, we are raising Dawson. We are raising Chambers. This case touches them all. And we've supported each of these claims with affidavits and exhibits.

It's inconceivable that Your Honor upon reading these documents could reach a conclusion that they are all frivolous and that there is no basis whatever, accepting them as being true, no basis whatever for this Court to grant a stay. It would be unprecedented. Now, the prosecution has provided this Court with one case, the Mulligan versus Georgia

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case, Zand, I think Mulligan versus Zand -- Z-A-N-D -- out of the Middle District of Georgia -- a two-and-a-half page opinion by the lowest Federal Court in the State of Georgia, written in 1982. That case has not been cited since in 13 years. And why hasn't it been cited? Because it's been overruled by the Barefoot case which came down the next year in 1983 saying this Federal District Judge in Georgia was entirely wrong and he applied the wrong standard. That's what it says by implication. Because the standard that the Federal Judge in Georgia applied is the standard that Your Honor was given by the District Attorneys yesterday, which is a standard that is not applied anywhere in the United States since that one lonely Federal Judge in Georgia did it, and was by implication reversed the following year by the United States Supreme Court in the Barefoot case.

And what standard did that judge apply which has not been applied anywhere? The standard that the Assistant District Attorney stood here on Wednesday and that Your Honor hinted at before you got the case law, I must

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say in fairness: That the petitioner must show that he or she has a substantial likelihood of success. That was what was applied in Georgia and never applied since to anyone's knowledge. They haven't cited one case since which has used that standard. And we have given the Court Fifth Circuit cases, Eleventh Circuit cases and United States Supreme Court case.

So I think it's clear on the law at this stage in the proceeding a stay must be issued so that we can then move to the second stage, which is an evidentiary proceeding set out in accordance with the local rules of the Common Pleas Court of Philadelphia, which I am now familiar with, whereby, Your Honor, we have a scheduling hearing whereby the Assistant District Attorney responds for the first time, which they haven't done yet, to our petition, whereby a period of time is allowed for investigation, by implication provided in the rules. Whereby we have to provide 30 days before the hearing, 30 days before a hearing, affidavits.

So we are looking, as I suggested on Wednesday, respectfully, if we follow the local

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rules and don't make an exception for Mr. Jamal's case, we are looking at a period of 60 days to 90 days whereby we will then begin an evidentiary hearing.

But there is an execution date in five weeks so we must have the stay to begin with. And then we will move under the local rules, we will receive their response, which is required, and a memorandum of law is required. We haven't gotten them yet.

We've gotten their discovery last night at 10:30. We will look it over, we will respond to it. There will probably have to be litigation concerning discovery. There will then be a brief period for investigation and preparation, the preparation of affidavits of witnesses; and then 30 days after that we will go into a hearing. That's what the rules provide. I am only asking and seeking for Mr. Jamal what the rules provide. And that's what they provide, there is no getting around it. Unless the District Attorney's Office position is let's make an exception for Mr. Jamal and let's move this thing willy-nilly, not in an orderly, not in a fair, not in a full

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proceeding, which is all required by the Constitution, but let's move it quickly as the trial was done.

THE COURT: Well, you don't understand this, Counselor. You know, the Assistant District Attorney is faced with the speedy trial, he must try the case within 180 days, doesn't have any choice in the matter. If he doesn't the prisoner is allowed to go free.

MR. WEINGLASS: Yes.

THE COURT: So he has to proceed.

MR. WEINGLASS: Yes. I understand that, Your Honor. And I have --

THE COURT: So when you say it's speedy, it has to be speedy because it is for the benefit of the Defendant.

MR. WEINGLASS: It has to be speedy, and the trial started on June 7th and that was just within the 180 days, as Your Honor indicates.

THE COURT: That's right.

MR. WEINGLASS: Yes. But there is nothing in the rules that require the trial to proceed through two Saturdays, one Saturday sitting at six o'clock. There is nothing in the

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rules --

THE COURT: The Jury was sequestered, Counselor. I have to show some concern for the Jury.

MR. WEINGLASS: Oh, yes.

THE COURT: They are sequestered and they are not happy about that. And I am not happy about working on Saturday but I worked on Saturday for their benefit. And the attorneys did too.

MR. WEINGLASS: But when one Juror wanted to take a civil service exam, you adjourned the Court for half a day to accommodate that Juror.

THE COURT: Counselor, the Supreme Court already ruled on that, so don't bring up something that they have already ruled on.

MR. WEINGLASS: No, Your Honor, they didn't rule on that issue.

THE COURT: They had it in front of them. If they thought there was something wrong about it they would have said so.

MR. WEINGLASS: But his appellate Counsel never read the record so it was never brought to their attention.

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THE COURT: The Supreme Court reviews it in total on it's own. They went into matters that were not brought up because they must in a capital case review the entire proceedings, whether the Counsel brings them up or not. So let's not argue about simple things like that, let's go forward.

MR. WEINGLASS: I don't want to get into quibbling with the Court. I agree with the Court. I was just concerned, and I wrote the Governor a letter that when the Supreme Court had Mr. Jamal's case they did not have the transcripts for his pre-trial hearings because they are lost. How could they review the record? The record isn't even --

THE COURT: Well, you go back to the Judge that had the pre-trial motions and he will have his Court reporter transcribe them for you if they weren't already transcribed.

MR. WEINGLASS: The transcript notes were lost, Your Honor. I have been trying to get them transcribed for eight months and they can't find the notes. They can not transcribe the pre-trial hearings in this case: They are lost.

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THE COURT: I don't know, I have some.

MR. WEINGLASS: You have some and I have some. Four are missing. That is not the way you do a death penalty case, on some. You do it on the whole record.

THE COURT: Counselor, you go back to the Judge that handled the case. I can't control his Court reporter. I don't know what hearings he held.

MR. WEINGLASS: We did advise the Court in the petition. And that brings me to a point that I should have raised at the outset. I am assuming that Your Honor has read the petition. Am I correct in that assumption?

THE COURT: Yes. Your PCRA?

MR. WEINGLASS: Yes.

THE COURT: Yes, okay.

MR. WEINGLASS: So the Court understands the 19 claims that are all set out with specificity.

THE COURT: And you are proceeding on all 19?

MR. WEINGLASS: Yes.

THE COURT: Okay. Because I thought last time you said you were proceeding on less

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than 19.

MR. WEINGLASS: No, we will start out with 1 and then go to the others.

THE COURT: Okay.

MR. WEINGLASS: In an orderly fashion.

THE COURT: Okay.

MR. WEINGLASS: Yes. And I think that should be the subject for a scheduling hearing: All sides will know how we are proceeding. Then, I think this is litigation of the most serious sort, and I think we ought to have a very firm understanding as to how we are going and where we are proceeding.

THE COURT: Well, that's what I am trying to do now, Counselor, if you don't mind. That's exactly what I am trying to do.

MR. WEINGLASS: Yes, yes, yes. So, Your Honor, I think there is no question, given the state of the law that's been provided to this Court -- and I am only addressing now the issue of stay, not discovery -- that the Court should enter a stay today and then we should move to a scheduling order, then we should get the response from the District Attorney's Office. Then we should have a period for

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investigation and preparation. And then we should have the 30-day period for the affidavits. And then at the end of that --

THE COURT: What affidavits? I thought you attached the affidavits.

MR. WEINGLASS: Pardon?

THE COURT: I thought you had already attached the affidavits.

MR. WEINGLASS: No, Your Honor, the local rules require that before there is an evidentiary hearing, the petitioner must provide an affidavit in substance of what the witnesses that the petitioner will call at the hearing will say. And then after that there is 30 days and then we are into an evidentiary hearing. In other words, under these rules --

THE COURT: You mean while you were preparing this PCRA you didn't get this information?

MR. WEINGLASS: No, we prepared the petition, Your Honor, to be a petition. Then under the local rules you move into the second phase, which is an evidentiary hearing. We are prepared to do that and we will follow the local rules, which will put the evidentiary hearing 60

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days from now. We will follow it exactly.

When Your Honor asked me on Wednesday when would we be willing to go, we will go at the first opportunity allowed by the rules: About 60 days from now. We will be ready then.

THE COURT: District Attorney?

MR. EISENBERG: Thank you, Your Honor.

I think it's important to remember again what the real issue before the Court is at this point. And that is not primarily, yet, whether a stay should be granted at all, but whether there should be some sort of an evidentiary hearing held by the Court, whether the Court has the discretion, the power to hear some evidence at this point. And on the basis of that decide whether there should be a stay, or decide that perhaps the stay will not be necessary because after hearing the evidence the Court will perhaps be able to reach the merits of the claims.

THE COURT: But in order to do that wouldn't I have to hear their PCRA?

MR. EISENBERG: Well, Your Honor, if necessary, and if the Court chooses to do that that would certainly be within the Court's

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discretion to do.

And I have heard on Wednesday and again today complaints that the Commonwealth didn't answer this or didn't answer that. As you know, we got a large stack of documents. We answered the motion for recusal and stay first. Because the issue of discovery was brought up on Wednesday, we rushed to get an answer out in writing, a very thorough and detailed answer to the discovery demands, which we completed yesterday. And we are also prepared to do the same for the PCRA answer itself: We are prepared to file that answer Monday morning, Your Honor.

And we believe that certainly at that point, if not today, the case is ready to proceed to some sort of an evidentiary hearing where the Court may begin to hear actual evidence about the claims that the Defendant is raising.

The issue here is not whether the Defendant is going to be deprived of a hearing. On the contrary, it is exactly the opposite: It is whether the Defendant is going to have the hearing. What the Defendant is actually asking

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for is not to have his hearing, but to not have his hearing, to have it later on at some point down the line maybe. But what he really wants is to get that stay, is to get that delay.

He talks about how we had four weeks and he just had a day, but we keep ignoring the real time period that is at issue here. For some reason it doesn't come up. And that is the fact that the defense team has been working on this case, by it's own admissions, for years and years, since apparently 1989, 1990. The documents that were produced that were filed in the beginning of June of this year are the product of five years of work. And now the Defendant says now he wants a period for investigation and preparation and discovery. He has done that. That's why he was able to come and produce these documents.

He says he wants to file affidavits 30 days before the hearing. He did file affidavits. He filed numerous affidavits, and we have them. And if the hearing were to begin today, even right now, the affidavits would have been filed more than 30 days before the hearing.

So there is no technical issue about

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whether he can comply with the rule about filing affidavits or anything. The reason he was able to do that is because so much work and preparation and investigation has obviously already gone into that. And it is time to test this.

Now what the Defendant is really saying is that warrant of execution doesn't mean anything, the fact that a day is set for execution doesn't mean anything except that now that is an invitation for me to come into Court and start talking about when I am finally going to put on my case and meet the burden. It is the Defendant's burden of proof at this time to overturn the verdict that has been upheld by every Court that has looked at it.

And all we are saying is fine, let's start to do that. We want to move ahead and do that. We take that date seriously, that date set by the Governor. It is not the beginning of the process, so that at some point after that point we will just, you know, talk about when we are going to have a hearing.

We ought to take it seriously and we ought to do what we can to advance the

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resolution of these issues as soon as possible. The Defendant says they are so serious, they are so important, they are of such public interest. Let's let the public -- and the Court, more importantly -- hear about the substance of these issues. And if a stay becomes necessary during the course of that process in order to have these issues properly resolved, the Court can exercise it's discretion to do that.

THE COURT: What you are saying, then, is the Court has the right to determine when the stay is actually necessary. In other words, there is nothing in the law that says I must rule within 24 hours, 48 hours, 72 hours or anything. As long as I rule on it before the execution date.

MR. EISENBERG: That's exactly --

THE COURT: Is that what you are saying?

MR. EISENBERG: That is exactly right, Your Honor. And there is no reason now to say gee, we are going to throw up our hands and give up and not even try to litigate this case, the case that this Defendant says he so desperately wants a hearing on. Let's go ahead and do it.

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He has been working on it for years he says, now should be the time we start to do it.

THE COURT: Is that what you call justice delayed is justice denied?

MR. EISENBERG: Yes, Your Honor. And it is remarkable that the argument is being made that we are rushing willy-nilly on something that has been in the works for years and years. How could that be called a willy-nilly rush for something that we have been working on for years?

The argument that the trial was handled in the same way: As Your Honor has pointed out and Counsel has conceded, the trial was begun six months after the crime. And it is not an accident that it happened to be six instead of five or seven: That's what the rules of procedure call for for the beginning of a trial. And the trial lasted a full month. It wasn't an overnight sort of thing. The trial went on for a month before Your Honor and a Jury. And let's go ahead and hear the evidence now in the same fashion that has been under wraps for all this time, for all of these years, let's go ahead and start testing it.

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Now, the Defendant relies on Federal habeas corpus cases for the proposition that you can't do that, that you can't actually hear the evidence that he says he wants you to hear because all you can do is look at his papers. And there are two problems with that. First of all, the cases don't say that; and second of all, if they did, they wouldn't dictate what this Court in Pennsylvania can do.

Barefoot versus Estelle, which the Defendant relies on as his main case, is a case about how a Federal Court of Appeals should handle a last-minute request for a stay of execution after a Federal District Court has denied a Federal habeas petition. And of course there is no issue there in Barefoot about whether the Federal Court of Appeals should hold a hearing on the stay petition or not. A Court of Appeals can't hold a hearing. An appellate court is not a court of record. It doesn't sit in a Courtroom like this and hear witnesses and have a jury or a fact-finder or an audience in this manner. That's not how appellate courts work. And the Supreme Court of the United States wasn't addressing that question in

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Barefoot.

But it did say some very important things in Barefoot that actually bear on this question. And what it said in Barefoot is when the Court of Appeals is faced with that sort of request for a stay of execution, the Court of Appeals doesn't have to throw up it's hands and say gee? looks like there might be something here, we've got to back off, grant a stay and send it back so it goes back for months or years to sit in front of some trial judge for a hearing. The Court of Appeals doesn't have to do that. The United States Supreme Court said that the court can look at the merits of the claims that the defendant is raising to challenge it's conviction. On the materials that it has before it it can look at the merits and resolve the merits of the claims.

Now, an appellate court, the only way that a court can resolve the merits of the defendant's challenges to his conviction is to look at the cold record before it, the papers, the transcripts. That's all an appellate court has, those are the only tools that it can work with.

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But that is not true for a trial court. Trial courts, as opposed to appellate courts, hear evidence. That is the way in which they resolve issues. And that's why the fact that a Federal appellate court doesn't hold an evidentiary hearing under Barefoot versus Estelle is meaningless.

In fact, even if a Federal District Court, a Federal trial court didn't hold a hearing, that would be meaningless. Because a Federal District Court hearing a challenge to a State conviction is not the trial court. The trial doesn't occur in that case in Federal Court. The Federal district judge sits in like an appellate judge, he is reviewing the lawfulness of the judgment of sentence. And in the general manner, the general case, the Federal district court, even he, even though he is a trial judge for Federal crimes, when it comes to State crimes he is not a trial judge and he doesn't get to hear evidence either. There is a presumption of correctness to the state court findings. It is the state court where the hearing is supposed to occur. And all the rules of Federal habeas corpus make it clear

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that in the first instance these factual matters are supposed to be resolved in the state court in a hearing and then the Federal court looks over that record. And if there has been some problem for some reason that the record couldn't be fully developed, then maybe the Federal district court gets to hold a hearing too.

But in the main the Federal district court, like the Federal appellate court, is supposed to look at the record of the state court proceedings. And all we are trying to do is start creating that record so that these claims can be resolved. Instead of holding it off, instead of not putting on the evidence that the Defendant says is so powerful, that he wants the world to see so badly, instead of not doing that, we say let's start doing it.

Now, as I said, the Defendant had said on Wednesday they didn't have our discovery response. They have that. They said they didn't have our PCRA answer. They will have that on Monday. Not that any of that should change anything. The Defendant came to the Court Wednesday, filing his papers over a month ago, and said here, look at all that I've got

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now. It was his burden to proceed and he said hey, I could meet it, I've got this stuff, I've got affidavits, I've got witnesses. So it is not a question of now beginning to have to go out and investigate and prepare. That was already done. It's obvious from the papers. Even the Defendant says look what I've done, look at all of the information that I've already gathered. And we should start hearing it.

Now, in our filing yesterday we analogized the status of the case now to a preliminary injunction hearing. And that is really the closest analogy in the law. Whether this is a death penalty case or not, we are in effect asking to, the Defendant is in effect asking to preliminarily enjoin his execution. He says I am going to want a permanent injunction later on, I am going to want you to vacate that death penalty all together, but in the meantime I want you to vacate it for now so that we can resolve the merits of our claims.

Well, in a preliminary injunction setting in Pennsylvania, as in virtually every other jurisdiction, the court holds a hearing on the merits of those claims so that the defendant

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can show a substantial likelihood of success on the merits. And Mr. Weinglass says no, that is not the standard, and he talks about Federal cases and he cites Bundy versus Wainwright. But even Bundy versus Wainwright, even in the Federal setting, to the extent that it were applicable here at all, says the standard for granting a stay of execution is a general standard for granting an injunction, including the likelihood of success on the merits. Whether the movant has made a showing of likelihood of success on the merits, on page 1421 of the Bundy opinion that's been handed to Your Honor.

Now, the Bundy court, because it was a Federal court and was dealing with Federal procedures, said we'll make that decision just on the papers in our case, not by having a hearing. But they weren't purporting to bind a state court in deciding whether the state court could have a hearing at that stage of the case. That was a matter of Federal procedure for Federal habeas corpus cases, which, as I have explained, are different.

The Defendant says well, but we

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incorporate Federal habeas corpus law into Pennsylvania law. And I imagine that this is a reference to a particular provision in the Pennsylvania Post-Conviction Relief Act. But in fact that reference does not support the proposition at all. One of the bases for eligibility for relief under the PCRA in Section 9543 refers to Federal habeas corpus.

THE COURT: B.

MR. EISENBERG: 5, little 5 is the one that refers to Federal habeas corpus. If the petitioner can assert a violation of the provisions of the Constitution, law or treatise of the United States which would require the granting of Federal habeas corpus relief to a state prisoner. In other words, if you've got a substantive claim that would knock out your conviction, that is the kind of a claim that a Federal Court would recognize, then we will recognize it here in Pennsylvania too. In other words, if you've got a claim like they violated my right to counsel or some other sort of Constitutional claim, and it is the kind of claim that the Federal court would hear, we'll hear it.

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But that is not what we are talking about now. Now we are talking about a procedural question about whether this Court has the power to conduct an evidentiary hearing on the claims that the Defendant says he so desperately wants a hearing on. And even if Federal procedure prohibited that, those Federal procedures haven't been incorporated into the PCRA. We don't use Federal rules of evidence when we have a PCRA hearing. We don't use the Federal rules that were promulgated for habeas corpus cases under Federal rules, we don't use those, we don't consult those. We don't use the Federal Rules of Civil Procedure, we don't use the Federal Rules of Appellate Procedure. The only thing that is referred to in the Pennsylvania Post-Conviction Relief Act are substantive claims like a violation of the Constitution that would knock out your conviction. But how we determine that, how we litigate those claims is handled by Pennsylvania procedural rules, not by Federal procedural rules.

THE COURT: Wouldn't we do that when we have a hearing on the PCRA? Don't you do

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that while we are having the hearing?

MR. EISENBERG: We certainly could, Your Honor, and we would have no objection to doing that. All that we object to is delaying, all we object to is the Defendant being able to say look, we have all that stuff but we don't actually want to get into it yet, we want that stay, we want that delay of the execution that's already been delayed for all these years, but we don't want to actually start having to put our evidence on. And we say let's do it. Let's hear the evidence, let's have it tested in an open, public Court of law finally.

Thank you, Your Honor.

MR. WEINGLASS: Your Honor, we accept, we accept the challenge that we go ahead. And we intend to go ahead. Counsel from the District Attorney's Office argues here at length but never once cites the local rules. We will go ahead in accordance with local rules.

THE COURT: Well, if the Commonwealth is not objecting to anything, what is there --

MR. EISENBERG: The only local rule that I recall Mr. Weinglass referring to is the requirement that affidavits be filed 30 days

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before the hearing. That time period, obviously, is to avoid prejudice to the other side. So that I agree with you that the Commonwealth could waive that possibility of prejudice, but it's irrelevant anyway because we have the affidavits and we've had them for more than 30 days.

Furthermore, as Your Honor is probably aware, although we keep calling these local rules, these are just one Judge's, Judge Papalini's, own internal procedures for how he conducts PCRAs. He is entitled to do it that way. Some judges follow it, some judges don't, but there is nothing about the local rules that prohibits this Court from going ahead and hearing the merits of these claims.

And we have something that we don't have in the usual PCRA case: We have a warrant of execution. And the bottom line of the Defendant's position is let's not take that seriously, that doesn't count for anything. All that means is we have to go through this sort of technical exercise of going into court and getting that knocked away by having a judge grant a stay. And we say that's not what it

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means.

THE COURT: It is not necessary for me to make a decision on the stay at this moment.

MR. EISENBERG: Exactly, Your Honor.

THE COURT: There is no case law that says I must make it right now.

MR. EISENBERG: That is correct.

MR. WEINGLASS: Your Honor, there is five weeks to a date of execution.

THE COURT: I know there is five weeks. And that's why I said I will take it under advisement. I want to proceed with the PCRA matter.

MR. WEINGLASS: No, Your Honor.

THE COURT: Start taking evidence under that. And if we get close to execution, Counselor, I will rule, okay, on your stay.

MR. WEINGLASS: No, Your Honor, we can not proceed.

THE COURT: What do you mean you can not? Where does it say we can not?

MR. WEINGLASS: I will tell you where it says that. If you look at the case law we have given you, it is a very different proposition than has just been laid out for you

Page 37.

by the Assistant District Attorney. I could put it in a nutshell. This is what the D.A. says. The D.A. says let's hear the evidence first and then the Court can decide the stay.

THE COURT: I could decide the stay at any time.

MR. WEINGLASS: Pardon?

THE COURT: I could decide the stay at any time.

MR. WEINGLASS: But when you look at the cases, Your Honor.

THE COURT: But you haven't shown me a case that says I must do it before I start hearing any evidence about the PCRA.

MR. WEINGLASS: Yes, it is exactly what we have shown you and exactly what I have argued. Because this is what the cases say. They don't say the evidence first and then the stay.

THE COURT: I am not saying that. I am not saying that, Counselor.

MR. WEINGLASS: All right.

THE COURT: The only purpose of a stay is to permit you to complete your proceedings under the PCRA. And I will decide that. I

Page 38.

would agree with you if his execution date was set for Saturday or his execution were next week, I would agree with you there would not be enough time. I haven't heard anything in this case. What I want to do now is to take it under advisement, you know, and let you proceed with your PCRA matter. And we could take care of it. If we get close to the time, if it takes longer than that, I hope it doesn't, but if it should I certainly will rule on it.

MR. WEINGLASS: Your Honor, you are overlooking one critical fact: When you say you haven't heard anything. And that's what the cases point to.

THE COURT: No.

MR. WEINGLASS: You have heard a petition. You have heard --

THE COURT: I know.

MR. WEINGLASS: You have heard 19 claims. You have heard 300 --

THE COURT: I am giving the District Attorney until Monday to file his answer to that. And then I will proceed with taking of testimony under your PCRA petition.

MR. WEINGLASS: Look at what the

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Barefoot case says. The Barefoot case says, does the Court look at the evidence before it decides the stay. The Barefoot case says you look at the petition.

THE COURT: I am not deciding it on the basis of the evidence. I am saying if you can complete your PCRA matter within sufficient time then the matter goes directly to the Supreme Court. If the Supreme Court feels that it needs time to resolve it, they will stay it. Or I'11 stay it before it goes there if it is too close for them to make that decision.

MR. WEINGLASS: One thing: You can not overlook the fact that you have a petition which sets forth the claims and that are supported. That's what triggers the stay.

THE COURT: Counselor.

MR. WEINGLASS: That's what triggers the stay, not the evidence.

THE COURT: I am taking it under advisement. I am not ruling on it one way or the other at this time. What I am saying to you now is let's proceed with the PCRA matter.

MR. WEINGLASS: This is what Barefoot, Bundy and the Blackledge cases say. If a Court

Page 40.

has been given the petition, the Court looks at the petition and decides the stay. You have the petition. Now you should decide the stay. Don't wait for the evidence, that's what they all say.

THE COURT: I am not waiting for any evidence.

MR. WEINGLASS: Decide the stay.

THE COURT: I will make it at the proper time. I am taking it under advisement, Counselor. I am not denying you your stay.

MR. WEINGLASS: You are denying us an orderly proceeding.

THE COURT: No. Why?

MR. WEINGLASS: And a full and fair hearing.

THE COURT: I am going to give you a full hearing. What I am asking you is why must I decide that right now?

MR. WEINGLASS: Because, Your Honor, very simply this.

THE COURT: Quiet or you are going to be removed from the Courtroom. All right, go ahead.

MR. WEINGLASS: Your Honor is an

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experienced jurist. You have received a document over 300 pages in length. It asserts 19 claims. Hear me out, please --

THE COURT: Yes.

MR. WEINGLASS: -- without interruption. The same courtesy as you gave Counsel.

THE COURT: I gave you courtesy all the time, Counsel.

MR. WEINGLASS: Okay, I appreciate it. If Your Honor can say, in all seriousness can say honestly that these 19 claims can be litigated and appealed and go to Federal Court in the space of 25 working days, then Your Honor can say you have time. But that is a total falsehood.

THE COURT: Well, Counselor, I don't know. I don't know whether this all can be resolved.

MR. WEINGLASS: You are an experienced jurist, there is no way this could be done in 25 working days.

THE COURT: If you have a crystal ball that I don't have I would appreciate it if you give it to me so I could look at the crystal

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ball and decide it can't be done. You are not even giving it a chance to resolve this matter to see.

MR. WEINGLASS: You have every chance right here in a written petition with affidavits and exhibits.

THE COURT: I know.

MR. WEINGLASS: Anyone looking at this will know this can't be done.

THE COURT: As I told you before, I will take it under advisement. If we get close to the time, if we are not finished, I will then rule on your stay.

MR. WEINGLASS: But, Your Honor, we can't even begin immediately.

THE COURT: Why not?

MR. WEINGLASS: We can not begin immediately because, number one, my investigator, who I had to bring from out of state because I could not get local investigators.

THE COURT: Why? We have plenty of them around here.

MR. WEINGLASS: They are all a little afraid of this case because of the police

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involvement.

THE COURT: Quiet or you will be removed. If you want me to empty the Courtroom I will empty it. I don't want any outbursts here. Go ahead.

MR. WEINGLASS: We could not get investigators in Philadelphia, and we will put on evidence to that effect, because they were very concerned about their futures as investigators in this City if they got involved in this case. We also had difficulty getting witnesses because the District Attorney's Office eliminated the addresses and the phone numbers of all the witnesses and we have to find witnesses who were on the street 13 years ago. This is a very problematic issue that requires time. And we can not be rushed in this case according to the Court's schedule.

Now, we have tried to move this quickly. We asked this hearing be held on these dates rather than July 24th so that we would have time. And now that we've saved the Court that time, now the Court is imposing upon us a time restraint that is unacceptable.

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THE COURT: Your own petition alleges that you have these people who were going to come in here and testify. Bring them in. Bring them in. Yes?

MR. GRANT: If the Court please.

MR. WEINGLASS: Let me correct one mis impression that the Court has...

THE COURT: Yes.

MR. WEINGLASS: Let me correct one mis impression. It has been said here by Counsel, not this morning, because I think they are becoming a little more careful about what they say, but it was said on Wednesday that I have been in this case since 1989. And they cite Paragraph 3 of the petition, which does not say that at all. As a matter of fact, I was not in this case in '89, or '90, or '91. And I started assembling a team in '92, which took a considerable effort.

THE COURT: '92?

MR. WEINGLASS: In '92. We are now up to our eighth investigator.

THE COURT: It is now '95.

MR. WEINGLASS: Pardon?

Page 45.

THE COURT: It is now '95.

MR. WEINGLASS: That's right, Your Honor.

THE COURT: All right.

MR. WEINGLASS: But it takes to reinvestigate a case that's 10, 12 years old with local investigators who we could not get, and we are doing it on monies that have been raised, takes years. But let me explain what's happened in the interim. I met with Governor Casey's Counsel and we laid out for Governor Casey's Counsel all of our problems so that the Governor refrained from signing a warrant. Then I met with the Governor himself in September of '94 and I said to the Governor we don't have the full transcripts and we can't get them. I am trying but they are lost. And he said well, in that case we can not move this case too quickly because you need the record.

As I stand here today I still don't have the transcripts. And I wrote Governor Ridge this on April 21st -- and you have a copy of that letter -- and I said to Governor Ridge would you help me, I have got an obligation here to move a case, I can't move it because I don't

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have the transcripts, please use the influence of your office to get me the transcripts. And I got a response saying they wouldn't help me.

Now, that's the way I sit here today in this case. I still don't have the full record and I am still looking for it.

THE COURT: What record don't you have?

MR. WEINGLASS: Pardon?

THE COURT: What record don't you have?

MR. WEINGLASS: I don't have four critical pre-trial hearings where over 12 pre-trial motions were argued.

THE COURT: Who handled them?

MR. WEINGLASS: Judge Ribner.

THE COURT: Well, go see Judge Ribner.

MR. WEINGLASS: I talked to Judge Ribner's clerk. I've talked to the head of the reporters. I've, there are letters back and forth, I will provide them to the Court. They lost them. They found one, they found one.

THE COURT: I will hear --

MR. BURNS: Could I respond?

MR. WEINGLASS: Wait a minute, Your

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Honor, please don't cut me off.

THE COURT: You said you don't have them.

MR. WEINGLASS: Please don't cut me off. Please don't cut me off.

THE COURT: Maybe they have the records, will you wait just a minute. Do you have the records that he said was lost?

MR. BURNS: I don't know what particular records are being discussed here. Mr. Weinglass has made a number, a large number of representations unsworn, uncross-examined throughout this morning. He talked to the Governor --

THE COURT: Wait awhile, Counsel.

MR. WEINGLASS: I never said to this Court --

MR. BURNS: A whole variety of facts.

THE COURT: Gentlemen, please. Let him speak now for a minute: I will get back to you.

MR. WEINGLASS: I have a personal privilege. He recited a television program falsely.

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MR. BURNS: Personal privilege?

MR. WEINGLASS: Yes, because he said I misrepresented.

MR. BURNS: Yesterday he was outside trying to incite the crowd.

MR. WEINGLASS: That is on the record.

MR. BURNS: Yes, I want that on the record as well.

MR. WEINGLASS: This is the kind of thing, Your Honor, I come to Philadelphia, I expect lawyerly-like conduct.

THE COURT: I am trying to find out about the records that you don't have.

MR. WEINGLASS: Right.

THE COURT: Is there any records that you have that he doesn't have?

MR. BURNS: I do not believe so. I do not know what record he is referring to.

THE COURT: I don't either. I only have one for April.

MR. BURNS: I know what's in the record, and what's in the record, obviously, is in the record. Lacking some specifics as to what is being missed, I really don't know.

THE COURT: You have to talk to Judge

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Ribner to find out when he had these.

MR. WEINGLASS: I talked to his clerk.

MR. BURNS: Furthermore, if there were notes it would certainly be possible --

THE COURT: Talking to his clerk isn't going to help you. You have to talk to the Court reporter.

MR. WEINGLASS: I meant his Court, I talked to the head Court reporter.

THE COURT: Not the head, he doesn't transcribe the notes. Talk to Judge Ribner's Court stenographer.

MR. WEINGLASS: Your Honor --

MR. BURNS: May I be heard, Your Honor?

THE COURT: Ask him what, tell him what days you want.

MR. WEINGLASS: Your Honor, the Court doesn't understand, with all due respect, the process.

MR. BURNS: I believe the Court recognized me and wanted to hear from me.

THE COURT: I have been here long enough: I understand the process. That's where you have to go. I can't give you the record.

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If it was in my Courtroom I would have it, Counselor, because I keep all my notes.

MR. WEINGLASS: When a case is this old the notes that are taken by the Court reporter are put in a morgue, or in a vault.

THE COURT: Mine are not put in a morgue: I keep mine.

MR. BURNS: Mr. Weinglass is now instructing the Court on civil procedure in Pennsylvania.

MR. WEINGLASS: That's right.

MR. BURNS: If he is going to go on could I say something to the Court, please?

MR. WEINGLASS: I get it from the Court reporter.

MR. BURNS: Am I recognized to speak?

MR. WEINGLASS: No, you are not. Your Honor --

MR. BURNS: Mr. Weinglass is going to be allowed to speak and I am not, Your Honor?

THE COURT: Mr. Weinglass, please.

MR. WEINGLASS: Yes.

THE COURT: Mr. Weinglass, please. I am the one that decides whether he speaks or not. So let him now.

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MR. WEINGLASS: But you should also protect my right.

THE COURT: I will let you speak also, I have listened to you.

MR. WEINGLASS: Please don't interrupt me.

THE COURT: Wait awhile, Counselor. You have you made a statement. I want to know if he has anything that you don't have. That's what I want to find out.

MR. WEINGLASS: Good.

THE COURT: Well, let him speak.

MR. WEINGLASS: Do they have it?

THE COURT: That's what I am asking him.

MR. EISENBERG: Your Honor, I am not even sure what dates we are talking about, but I think there is an important point to make here because the representation is being continually made that these are critical, that they absolutely need them that, that they are holding up the whole case. I don't understand how that is so. If they know they are critical then I guess they know what they are about. How is it we know what they are about? We are talking

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about proceedings, presumably in front of the calendar judge, which Your Honor is aware of, you know how those lists are handled with 30 or 40 cases before a judge in a day. We are probably talking about something which, if it ever existed, if it was ever transcribed, could be a page or three pages long. The assertion that these are somehow critical to proceeding with the case at all now is ludicrous. We have 19 claims here in the petition. We keep hearing that. Which ones of those claims can't proceed because we are missing four days of transcripts from 1982? I would like some specificity about that. Since the transcripts are being asserted as the reason for delay, let's hear which claims can't proceed without the transcripts and why that is so. Because there have got to be claims, given the nature of the claims in here that are based on witnesses, on extra-record information, not on transcripts, but on things that happened outside of court, there have got to be claims that can proceed. And there is no reason why those claims shouldn't proceed.

And if Mr. Weinglass wants to make a case for the Court why there are other claims

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that can't proceed without the transcripts he can. But Your Honor is well aware from handling PCRA cases, when the defendant delays for years in filing his petition, sometimes things get lost. If the transcripts are lost right up front, at the period where the case is still on direct appeal, then the burden of that problem may fall on the Commonwealth. Because it is the Commonwealth's obligation in the first instance to create and have in store, on store a record of the proceedings. But when the case goes on for years and years, and when we are looking at 13 years after the fact, then the records are misplaced, that is not something that the Defendant can get up and say here is a reason why I can't proceed. And certainly not without specifying for us why his 19 substantive, weighty claims as he calls them can't go ahead without these transcripts. We are not even hearing what those proceedings were about and what they have to do with each and every single one of these 19 claims. That's the issue here: Whether we can proceed with those claims. And we keep hearing about transcripts.

MR. WEINGLASS: Your Honor, all you're

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hearing, I believe, is, number one, a concession on the part of the District Attorney that they don't have them either. And that, in point of fact, no one has them. Please hear me out, Your Honor. You gave him 10 minutes, I ask for the same privilege.

THE COURT: Ten minutes? No, I didn't give him 10 minutes, but.

MR. WEINGLASS: Whatever you gave him I ask for the same. I provided the Court on Wednesday with a letter I wrote to the Governor on April 2Oth, 1995 in which I pointed out to the Governor that it is most egregious that the Court reporter administration has recently notified me that the notes of four remaining missing hearings have not been located and that they are still trying to locate the notes.

THE COURT: Well, who told you that?

MR. WEINGLASS: The Court reporter administration.

THE COURT: Court reporter administration, bring him in here. Find out what he is talking about.

MR. WEINGLASS: Pardon.

THE COURT: Bring him in, let's find

Page 55.

out what he is talking about.

MR. WEINGLASS: Absolutely, I have their letters, Your Honor, I could provide the Court with the letters. I corresponded with them, pleading with them to send me the transcripts. Hear me out. They sent me one. They sent me the transcript of May 13th, 1982, 71 pages long.

THE COURT: Let me say this: I could probably help you. Why don't we dig up the pay voucher for Jackson and see if he put in for any particular days to be paid, and where it was and how long he was in there. That will tell us if there were any sessions and what it's all about.

MR. GRANT: I think that may require an order from Your Honor to the Prothonotary or Clerk of Quarter Sessions because we don't have the authority to investigate that matter.

MR. WEINGLASS: I could give Your Honor the days, I could give Your Honor the precise days.

THE COURT: Well, yes, let's bring Mr. Jackson in here to find out what happened on those days.

MR. WEINGLASS: But that is not the

Page 56.

transcripts I want.

THE COURT: Well, he will tell us. He may say he just came in there and we didn't do anything except be ready. Whether they wanted any discovery. Now, I have one transcript dealing with the discovery, I think it's in April of '82, those notes. And that's all that was about. And in those notes the Assistant D.A. McGill indicated that he opened his files to Mr. Jackson, so that he had everything that the D.A. had. And the only thing he was complaining about was that he didn't get any discovery back from the defense.

MR. WEINGLASS: Your Honor, I beg to differ with Your Honor's recollection.

THE COURT: Well, I just read it. I just read it the other day.

MR. WEINGLASS: Right. When he came into Court on that date he asked the Court to appoint another lawyer to assist him because he wasn't on top of the case and he was too busy with other cases.

THE COURT: That's not what he said. No, he didn't like the idea of being back-up Counsel, that's what he said.

Page 57.

MR. WEINGLASS: No.

THE COURT: Yes, he did. He said he wasn't, he never went to law school to become back-up Counsel.

MR. WEINGLASS: Your Honor, that occurred on May 13th.

THE COURT: Well, April I think it was.

MR. WEINGLASS: No, April was a totally different hearing. April he was still trying to convince this Court to give him the resources to defend the case. The Court turned him down. And when the Court turned him down Mr. Jamal asked to represent himself.

THE COURT: Judge Ribner did not turn him down. He gave him sufficient funds. As a matter of fact, you talk about that, in May he gave him additional funds.

MR. WEINGLASS: No.

THE COURT: And the D.A. was complaining because they didn't have discovery back from the defense.

MR. WEINGLASS: Right. He, the defense was given a hundred and fifty for pathologists, he gave him not another cent. A

Page 58.

hundred and fifty for a firearms expert.

THE COURT: Fassnacht.

MR. WEINGLASS: He was given about another $200. It wasn't enough for Fassnacht.

THE COURT: Wait awhile. He gave him a hundred and fifty and then he gave him 200 more?

MR. WEINGLASS: Pardon?

THE COURT: He gave him initially a hundred and fifty and then gave him 200 more?

MR. WEINGLASS: That is the grand sum of about $350 and Fassnacht could not do anything.

THE COURT: I don't know about that.

MR. WEINGLASS: He did not look at the bullets, he did not look at the gun.

THE COURT: He did look at them and he said that he would be giving Mr. Jackson advice on the whole matter.

MR. WEINGLASS: No, Your Honor, he did not.

THE COURT: Read the notes again.

MR. WEINGLASS: I have his affidavit, Your Honor has read it.

THE COURT: I don't care about his

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affidavit. Read the notes.

MR. WEINGLASS: No, in his affidavit.

THE COURT: Well, then bring him in here and let him tell us.

MR. WEINGLASS: In due course you will hear in accordance with local rules unless you make an exception for Mr. Jamal.

THE COURT: I am not making an exception for anyone. You are asking me to make an exception.

MR. WEINGLASS: I am standing on the rules, I am standing on the local rules.

THE COURT: It is not our rules. As he said, they are the rules of Judge Papalini.

MR. WEINGLASS: So you won't follow Judge Papalini's rules?

THE COURT: No, he doesn't handle murder cases or capital cases, he handles the other ones. He's got enough headache just taking care of the non-homicide cases.

MR. WEINGLASS: So Your Honor is saying that in homicide cases lesser guarantees of protection apply?

THE COURT: No, I am not saying that. I am saying that there are no rules on capital

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cases or murder cases, even if it's life or death, it doesn't make any difference.

MR. WEINGLASS: But there is one rule: There must be an orderly --

THE COURT: That's what I am trying to get to, that's --

MR. WEINGLASS: Orderly.

THE COURT: That's what I am trying to get to: Orderly.

MR. WEINGLASS: We can't have orderly when you are telling me that we have 24 hours to file a brief, that we have half-a-day to file other briefs, that on Monday we are going to hear other things and that you are denying a stay. That is not orderly.

THE COURT: I am not denying a stay.

MR. WEINGLASS: You are.

THE COURT: I said I am taking it under advisement. Don't you understand?

MR. WEINGLASS: Yes.

THE COURT: Well, that's, I am not ruling against it. I am not saying I won't ultimately grant it. I don't know.

MR. WEINGLASS: Your Honor, let me make this request.

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THE COURT: If you could show me a case that says I must rule on that before I could hear anything from the PCRA matter, fine.

MR. WEINGLASS: The cases are as follows: Barefoot, Bundy --

THE COURT: Barefoot doesn't say that.

MR. WEINGLASS: It says the Court looks at the petition only.

THE COURT: I know that but --

MR. WEINGLASS: Look at the petition.

THE COURT: -- it doesn't say when I have to make a ruling.

MR. WEINGLASS: No, we asked for a stay.

THE COURT: It doesn't say when I have to make the ruling. That's what I asked you: Must I make the ruling in 24 hours? 48 hours? 72 hours? Can I take it under advisement or am I prohibited from taking it under advisement?

MR. WEINGLASS: Then I ask Your Honor to read Bundy. In Bundy this is what the Court said, very similar to Your Honor: Well, I have the petition but I do want to hear some more evidence.

THE COURT: I am not saying I want to

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hear -- I don't want to hear any evidence on the petition. What I want to hear evidence on is on your PCRA. That's what I want to hear.

MR. WEINGLASS: That is the petition.

THE COURT: No, that is the PCRA, that is not the petition to stay. You filed two petitions here: The petition to stay and a petition under the PCRA.

MR. WEINGLASS: What evidence do you want to hear on the petition for a stay?

THE COURT: I don't want to hear any evidence on the stay.

MR. WEINGLASS: You don't want to hear any evidence on the stay.

THE COURT: No, I want to proceed with the PCRA.

MR. WEINGLASS: You want to proceed with the petition.

THE COURT: Yes.

MR. WEINGLASS: And we are asking for a stay on this day, which is Friday, July 14th.

THE COURT: I will take it under advisement, Counselor.

MR. WEINGLASS: But you are denying a request for a stay.

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THE COURT: Right this minute, yes, I am taking it under advisement.

MR. WEINGLASS: You're denying the stay today.

THE COURT: I am taking it under advisement, I am not ruling on the stay. Don't try to put words in my mouth. I said I would take it under advisement.

MR. WEINGLASS: But we asked for a stay today.

THE COURT: Well, you could ask for anything you want. I am taking it under advisement. Do you want to say something?

MR. WEINGLASS: Today, Your Honor, we want the stay today.

THE COURT: Wait awhile, Counselor, I heard you already. Let --

MR. EISENBERG: Your Honor, it is clear that the reason that Counsel is trying to put those words in your mouth is that he thinks maybe he could create some sort of an order out of that by which he could block your efforts. Now, they are entitled to proceed in any way in any other court that they want, but I think the

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meaning of Your Honor's order is clear. And even in all the other stay litigation that we have all talked about, other cases that we have referred to, in none of those cases did the Court rule immediately. They were cases where the Court ruled two days later, four days later, a week later, sometimes several weeks later. In the Duffy case, for example, where the court initially granted a short stay and then decided to hold a hearing, and had a lengthy hearing and then denied a stay. There are other cases where the Supreme Court has not ruled on a stay for several weeks.

It's clear that you don't, as Your Honor says, don't have to rule on the stay now. And the only reason that the defense wants you to rule on the stay now is so that they can try to block the evidentiary hearing which they have been claiming all along that they wanted.

The latest excuse that we have heard so much about today is the transcripts. But nobody goes through these 19 claims listed over two pages in the PCRA petition and explains to us why we can't proceed without these transcripts. Mr. Weinglass is able to discuss

Page 65.

the events of those days in great detail, he obviously knows what happened on those days. And if the transcripts come, fine, we'll see them. If they don't come, as often happens in a case that's 13 years old, a few pages may be missing out of several thousand, then we will proceed as best we can as happens in every other case. We will try to bring out what evidence we can and the defense can try to recreate those events as best it wants to and puts on witnesses who will testify to their recollection of what happened. But apparently the position is that until we have every single piece of paper here we can't proceed at all. I suppose that if we never get the transcript we will just have to stay this thing indefinitely, is the defense position. Of course we can't proceed that way. There is no explanation of how these various transcripts are going to relate to any of these claims or block them. There is certainly no reasonable position that we never proceed unless and until we have everyone of these transcripts. It's time to go forward.

THE COURT: How about the discovery issue?

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MR. EISENBERG: Your Honor, as --

THE COURT: I think he said something about --

Did you speak on the discovery issue?

MR. WEINGLASS: We filed a brief on the discovery issue.

THE COURT: I mean do you want to say anything? Are you entitled to discovery at this time? That's the issue.

MR. WEINGLASS: We had filed with the Court a lengthy request for discovery. And we filed it on June 5th, 1995. And we got the response last night at approximately ten o'clock on July 13th. And I have not had an occasion yet --

THE COURT: To read it.

MR. WEINGLASS: -- to read that full response.

THE COURT: All right.

MR. WEINGLASS: But this is the way in which we are proceeding in this case. This is not an orderly way to proceed.

THE COURT: We are, we are proceeding very orderly. He gave you the response. It's 11:30. Would you be back here at one o'clock?

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Give you an opportunity to read it.

MR. WEINGLASS: Your Honor, I really do not believe in a death penalty case I ought to be proceeding under this kind of pressure.

THE COURT: Well, you have to proceed as promptly as possible. As I said before, justice delayed is justice denied.

MR. WEINGLASS: But the Assistant District Attorney delayed five weeks in responding to discovery.

THE COURT: Then you delayed until the Governor signs a warrant.

MR. WEINGLASS: Your Honor, we haven't delayed at all on the discovery. We filed our discovery at the time we filed the petition.

THE COURT: Okay, so what evidence don't you have that you are entitled to? You had initial discovery, pre-trial.

MR. WEINGLASS: No.

THE COURT: You had that discovery.

MR. WEINGLASS: No, Your Honor, they were given statements and the addresses and the phone numbers were deleted, and that's why witnesses could not be found and still can not be found. So we want to have at least the

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addresses.

THE COURT: Well, they may not have the addresses either, I don't know.

MR. WEINGLASS: That's one point. But I haven't read their response and I need time to read it.

THE COURT: Okay, do you want until Monday, then, to read the response? I don't care, I will give you as much as time as you need, but I want to proceed to resolve the matters here as promptly as I can.

MR. WEINGLASS: But so promptly that Mr. Jamal's rights are again being interfered with.

THE COURT: No, justice delayed is justice denied. And I am trying to do it in --

Please, no more comments or I am going to have to clear the room. You understand what I mean: You are not out on the street here, you are in a Court of law. And you are going to maintain the proper decorum or you are going to be moved out, period. I can't tolerate that in a Courtroom.

Go ahead, Counselor.

MR. WEINGLASS: Oh, Your Honor, I have

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to consult with -- could I have 10 minutes to consult with my Co-counsel and with Mr. Jamal?

THE COURT: Sure, tell me how much time you need.

MR. WEINGLASS: Because we are operating here where I get papers 10:30 at night and when I am in Court the next morning.

THE COURT: I didn't get your papers until this morning.

MR. WEINGLASS: Your Honor, Your Honor left your office early yesterday.

THE COURT: Shame on you.

MR. WEINGLASS: We got it to Your Honor's office before the close of the business day but you were gone.

THE COURT: Close of the business day.

MR. WEINGLASS: I wasn't asking the Court where you went.

THE COURT: You better not.

MR. WEINGLASS: But I think the record ought to reflect that unlike the District Attorney's Office, we provided you and the Assistant District Attorney with our papers before the close of the day.

THE COURT: All right.

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MR. WEINGLASS: We did not get theirs until after the close of the day.

MR. EISENBERG: I just have to put a few additional fact on the record. I received a list of cases at some time after five o'clock. I was told earlier that there would be a list and a memorandum. I received the memorandum this morning. According to the FAX of that memorandum, it arrived at my office FAX machine about five to 1l:OO p.m. last night. Now, I am not saying that to complain that they didn't give me enough notice. Under the circumstances I think that it was admirable that they got it to me last night at all. Because if I had been able to still be in my office at eleven o'clock last night, I left at lO:OO, I would have been able to start looking at it.

MR. WEINGLASS: And you didn't give us your papers until ten o'clock.

MR. EISENBERG: The idea that --

THE COURT: It is not a question of --

MR. EISENBERG: The question that somehow the Commonwealth delayed here is ludicrous. This is how death penalty stay litigation goes. I've had several already this

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year. Everyone of them was a matter of running around in front of Federal judges and State judges and filing things the next day and the day after. That's how it goes all around the country. We don't just sit back, kick up our heals and say sure, who cares about the scheduled execution date, we will just put that off and take it easy.

MR. WEINGLASS: Then, Your Honor, it is time we do it better. And Mr. Jamal is entitled to due process.

THE COURT: He is not the only one facing death. There are other people here and they have the same rights.

MR. WEINGLASS: Mr. Fahy had a right to a stay two weeks ago.

THE COURT: He got his stay.

MR. WEINGLASS: The Supreme Court had to come in and give him a stay.

THE COURT: And the Supreme Court will come in here and give him a stay if they need it. I am taking it under advisement. You are not satisfied with that, you do whatever you have to do.

MR. WEINGLASS: But we are asking for

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the stay today.

THE COURT: I am telling you I am taking it under advisement. That's all I could do, that's all I could tell you.

MR. WEINGLASS: We are not making the request today. We want the Court to make the order today.

THE COURT: I don't care what you want, I am telling you I am taking it under advisement.

MR. WEINGLASS: You are denying my request.

THE COURT: I am not doing that, I am taking it under advisement.

MR. WEINGLASS: You are denying the request.

THE COURT: I am not denying the request, I am taking it under advisement. If you don't understand English, Counselor, I'm sorry. Yes?

MR. WEINGLASS: I understand all too well.

THE COURT: Well, wait awhile.

MR. BURNS: Pardon me, Your Honor.

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THE COURT: Go ahead.

MR. BURNS: If it please the Court: This is becoming extremely repetitive. Mr. Weinglass is making the same arguments over and over again. I believe you have made your position clear. I would respectfully suggest, Your Honor, that we adjourn and reconvene on Tuesday, if that's appropriate, to start taking testimony.

THE COURT: Well, I want your answer in. You are going to have your answer to the PCRA?

MR. BURNS: Monday morning, Your Honor.

THE COURT: Okay. What about this discovery? He has a motion here for discovery. I've had a chance to look over the Act and I have tried to find cases and I could find none.

MR. BURNS: Well, the Defendant has filed a written motion for discovery. We filed a written answer. That certainly gives the Court a basis to rule. And if the Court wants to rule on that, fine.

THE COURT: Does anybody have any cases on it? I had my law clerk use a computer

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and couldn't find any. And I have looked at the statute itself and there is no provision in there for it.

MR. BURNS: It is controlled by the rule of criminal procedure which specifies that discovery is given before trial.

THE COURT: And I checked on Ribner's notes there: The entire file was turned over to Mr. Jackson, so they already have that. They had the discovery pre-trial. And I don't know that there is anything, if anybody could give me any cases. But at this moment I am ruling that the motion for discovery is denied. But I will give you --

MR. WEINGLASS: Your Honor was going to give me 10 minutes to confer.

THE COURT: No, on the discovery.

MR. WEINGLASS: No, discovery.

THE COURT: But if you could give me any cases on it, I will be glad to reconsider my decision on that.

MR. WEINGLASS: The Court has indicated that we will come back after a 10-minute break and I will consult with my Counsel.

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THE COURT: On the --

MR. WEINGLASS: On what we are going to do with respect to argument on discovery.

THE COURT: Okay.

MR. WEINGLASS: Because we got papers too late for me to read them last night. Now Counsel --

THE COURT: Well, Counselor, I don't care whether you read his or not, the D.A.'s. I have tried on my own to find some excuse or some rulings on this point. I could find none. And I have gone over the statute itself, the PCRA statute, but it does not make any provision for discovery. And there are no cases that I could find in Pennsylvania that did that. You have to understand that if he is entitled to discovery, so is every other person entitled to discovery. And this may be a matter that the Pennsylvania Supreme Court must resolve.

Now you could talk to your Counsel, I will take a 10-minute recess, but I am telling you I could find nothing on it. Unless you could find something on it. I will be glad to consider it. Or reconsider it, either way.

Take a 10-minute recess.

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THE COURT OFFICER: This Court stands recessed until the call of the Crier.

- - - - -

(Brief recess.)

- - - - -

THE COURT OFFICER: Court is back in session.

MR. WEINGLASS: Thank you for the opportunity for us to consult. I want to thank the Court's personnel for making a telephone available for us to call New York. And I think it's been fruitful because we now have the precise dates on which transcript notes have been lost. And the dates are December 2lst, 1981. February 22nd, 1982. March 18th, 1982. And April 1st, 1982. Those are the four dates that the Court administrator has informed me the notes are lost.

And if the District Attorney's Office could check their file, and if they have any of those dates, then we could move on from there. If they don't, then I assume we'll have as the Court suggests a reconstruction proceeding where we will attempt to reconstruct matters that were heard before the Court on that date and replace

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the reconstruction with the actual transcript.

But I think, Your Honor, given the fact that we are facing an execution date, I don't think we can proceed until we have the full record, including the pre-trial hearings. I do not know what happened on those dates. I've talked to Mr. Jackson: He can't recall with spec, with any specific, he can not recall specifically --

THE COURT: Specificity.

MR. WEINGLASS: -- right -- what happened on those dates. So if the District Attorney's Office has those records.

THE COURT: Well, maybe Judge Ribner might be able to help you, I don't know.

MR. WEINGLASS: It's possible, or personnel in his office. I, as I mentioned, I dealt with the Court administrator because I was referred to the Court administrator -- I am an out-of-state attorney -- and I dealt with a person who I was told had the notes. And indeed that person found one hearing, 71 pages for May 13th, and that was helpful to me. They gave it to me in November of 1994, that's when they came up with it.

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THE COURT: That's when they were talking about discovery.

MR. WEINGLASS: Pardon?

THE COURT: Discovery.

MR. WEINGLASS: Yes, now I want to answer the Court's request on discovery. I have talked to my Co-counsel, and I haven't had the principal responsibility for discovery, but we did file a 22-page request which is specific requesting various specific items. And we've gotten the response which is over 30 pages, I think 33 pages, response to each and every paragraph of the request. There are matters that are going to have to be argued and reviewed, there is case law.

I have talked to Counsel because the Court has indicated a proposed schedule of dealing with those matters on Tuesday. The best we can do, Your Honor, we can be back on Wednesday. And by Wednesday we will have the District Attorney's response to our long petition.

THE COURT: Well, no, I want the District Attorney's response by noon on Monday. All right, gentlemen? I want that

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back here on noon on Monday. And we will reconvene here on Tuesday. In Courtroom 253.

MR. WEINGLASS: Well, Your Honor, please, some of the Counsel cannot make it and some of the attorneys who are important for discovery cannot make it. Today is Friday. It's not unusual --

THE COURT: Counselor, as I said --

MR. WEINGLASS: Conflicts.

THE COURT: Counselor, I said to you before, I'm denying the motion for discovery. If you can give me any law that says that you are entitled to it in a PCRA matter, I will be glad to consider it, and I will reconsider my order. I have checked the records, I could find no cases on it. It is not a part of the PCRA statute. You had, the Defendant had a right to discovery pre-trial, which he had. He had the entire file. I don't know that you are entitled to a second look at it. So unless you could come up with a case that would say that in a post-conviction matter such as this, that you are entitled to discovery -- and I say this honestly to you -- I think that is going to have to be resolved by the Pennsylvania Supreme

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Court. Because I could find no cases on it.

MR. WEINGLASS: Let me try to help the Court in one particular. To give you an example of what the problem is. We have alleged on page...

(Discussion was held off the record at this time.)

MR. WEINGLASS: Page 8, the bottom of 7, the top of 8, that we have examined the letters that were sent to Mr. Jackson pre-trial, indicating an enclosure of certain statements of witnesses. We have gone through all the files that are available to Mr. Jamal. We have found that approximately 12 of those statements are missing. And we list them by name. Frank Allen, Beulah Campbell, Sharon Cook, Delores Fox, Pasquale Marcovecchio, Anthony Merrone, Robert Schmidt, William Stapleton, Reginald Thompson, Mark Turnock, et cetera, I don't want to list them all. These statements are missing. We have no basis for determining whether or not there was an ineffective assistant of Counsel in the review of these statements because we don't have them. We need the statements. Now, I think the Assistant

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District Attorney has them. And I think they can copy them.

THE COURT: I think what you need now is to put the attorney on the stand and let's find out what he did with them, if anything. I don't know.

MR. WEINGLASS: But, Your Honor, before we put the attorney on the stand, we are representing a Petitioner who faces a very serious consequence. Don't you think Counsel ought to have a copy, just a copy, D.A. can make a copy of these statements so we can know what it is that the attorney representing Mr. Jamal at the time did or didn't do? We are just asking for documents.

THE COURT: According to my reading of the initial notes the attorney didn't know who Mr. Jamal wanted to call until he told him.

MR. WEINGLASS: Your Honor, these are prosecution witnesses.

THE COURT: No, I don't care whose witnesses they are. But the thing is did he want to call them, did the defense want to call them?

MR. WEINGLASS: The defense wants to

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be able to assert it's claim on ineffective assistance of counsel. In order to do that we have to have all of the documents.

THE COURT: What do you mean, what did he do that was ineffective?

MR. WEINGLASS: Perhaps he overlooked something in these statements.

THE COURT: Well, we are not here as a Monday morning quarterback. What did he do?

MR. WEINGLASS: Not Monday morning quarterback. Ineffective assistance of counsel, as Your Honor well knows, is a clearly recognized ground, and we have asserted it, on which post-conviction relief is based.

THE COURT: I know, but exactly what didn't he do that he should have done? That is what I mean.

MR. WEINGLASS: He received these statements.

THE COURT: Right.

MR. WEINGLASS: We don't know what's in these statements. In order for us to assert the claim that he was ineffective we must have those statements. That's pure discovery.

THE COURT: Wait awhile. Did you talk

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to the attorney Jackson and ask him?

MR. WEINGLASS: We've asked about these, yes.

THE COURT: Does he have them?

MR. WEINGLASS: He does not have them.

THE COURT: What did he do with them?

MR. WEINGLASS: I don't know.

THE COURT: Well.

MR. WEINGLASS: I don't know.

MR. GRANT: Your Honor.

THE COURT: Wait awhile. Let me see if we could clear this up.

MR. GRANT: To the extent that Mr. Weinglass would make that list available to me I will look to find out whether we have any of these documents. We will reproduce those that he wants. And I know for a fact based upon the reading of the record itself that at some point Mr. Jackson gave his entire file to Mr. Jamal. And he was not able to look at those statements thereafter at any point in time. And he had to find out from Mr. Jamal which witnesses he should call next based upon Mr. Jamal's reading of the 49s and the 483s that were presented to him...

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MR. WEINGLASS: Now we are making some progress in discovery. If Counsel will turn them over we will receive them, there are about 12 or 14.

MR. GRANT: If we have them. I don't know, I don't recognize any of those names of any of those witnesses. They were not Commonwealth witnesses, they were never called to testify.

MR. WEINGLASS: Exactly, that's why we are very curious about them.

THE COURT: Well, he says if they have them they will give it to you. But the discovery generally is denied.

MR. WEINGLASS: Yes. Now, Your Honor, we are making some progress in the direction of an orderly proceeding. We have a claim, they have responded, I think we resolved it. Mr. Jamal has the documents he ought to have. When we put Mr. Jackson on the stand, which we will do --

THE COURT: What did he do with the things that he had, that Mr. Jackson gave him?

MR. WEINGLASS: Pardon?

THE COURT: Let's find out what he did

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with what Mr. Jackson gave him. He gave him his whole file.

MR. WEINGLASS: Your Honor is accepting carte blanch what they represented, Judge.

THE COURT: He said it is in the notes, I don't know. And he is going to answer your thing and if it's there it's there.

MR. GRANT: I do have the reference to the notes of testimony wherein Mr. Jackson states that, Your Honor. If I may.

(Pause.)

MR. WEINGLASS: I also, also I could reveal this to the Court while Counsel is looking: I've had conversations with Mr. Jackson. Whatever he turned over to Mr. Jamal he kept a copy for himself.

THE COURT: Well, then he should have a copy of these.

MR. WEINGLASS: He doesn't have it.

THE COURT: Well, find out what he did with them.

MR. WEINGLASS: That's part of what these proceedings are going to be about.

THE COURT: But the thing you are

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asking for is a general discovery.

MR. WEINGLASS: No. Very specific. We named everyone we are looking for.

THE COURT: All right.

MR. WEINGLASS: We didn't say give us all the statements. These are the ones we are missing.

THE COURT: Okay.

MR. EISENBERG: Your Honor, while Mr. Grant is looking through the notes let me just point out something about this, about these witnesses and these statements, since Mr. Weinglass, after we have offered to give a copy of something that we already turned over is now turning this into a discovery issue and proof that we need some big, extended, lengthy proceeding. The point here is that as a matter of courtesy when things that have already been turned over to the defense are lost at some point in the transition, there are times when, if the Commonwealth is able, if we are the only source for these materials, we try to give them over. But that's not discovery. And that's the crucial point. Because when Mr. Weinglass uses the word discovery, what he is saying is that he

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has a legal right to these things.

THE COURT: Well, I have already ruled that he doesn't.

MR. EISENBERG: That's why I want to make it clear that when we talk about discovery, we shouldn't be using that word in reference to these documents. As far as discovery is concerned, these documents are already done.

THE COURT: That's right, and I have already ruled as a matter of law that he is not entitled to discovery. But if you have them, you want to give them to him, fine.

MR. EISENBERG: I think another point is important also. Mr. Weinglass says he needs what is in them because he can't proceed without them because maybe they are going to be claims of ineffectiveness as to Mr. Jackson. In order to substantiate any such claims, if they ever need to come up with them, they need to put witnesses on the stand to testify as to what their testimony on issues relevant to trial would have been.

THE COURT: I understand that.

MR. EISENBERG: Since they know the names of these people then at some point they

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are going to have to talk to people anyway. And again, this is something, this information was in the possession of the defense, could have been investigated. If they want to investigate it in the future, if there is time and the Court permits that, fine. But the idea that they couldn't do anything on this until now is simply untrue.

MR. WEINGLASS: As I understand it, we were granted a recess so I could consult with Councel so I could indicate to the Court when I would be prepared to argue discovery. We are not at that stage yet.

THE COURT: No, I ruled on discovery already.

MR. WEINGLASS: You ruled.

THE COURT: I ruled that it is denied because I have done my own research on it.

MR. WEINGLASS: Your Honor, I haven't read their papers. Your Honor has heard from me orally. You are denying it.

THE COURT: Counselor, I heard from you.

MR. WEINGLASS: I didn't argue discovery.

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THE COURT: Counselor, give me a case, I said to you.

MR. WEINGLASS: I asked until Wednesday.

THE COURT: Counselor.

MR. WEINGLASS: Give me until Wednesday.

THE COURT: Counselor, I said to you I am denying the motion for discovery. If you are able to come up with a case that says that you are entitled to that, I will reconsider my decision. But for the time being I am denying your motion for discovery.

MR. GRANT: Your Honor, on June 26th of 1982, Mr. Jackson was addressing the Court at page 139 and 140 of the notes of testimony. At that time he stated to Your Honor, one of the difficulties that I have in determining what witnesses to call is that I have to reflect and search my notes as to the statements of witnesses. Since I no longer have a copy of the statements. Mr. Jamal has copies of the statements. I think that I indicated I showed you all the names.

Thereafter, on July lst, 1982, at page

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32 and 33 of the notes of testimony of the transcript, Mr. Jackson again addresses Your Honor. When asked what witnesses he will put forth for the defense next he states to you, to Your Honor, we have now found that there is another police officer that we would like to have testify. Mr. McGill, the prosecutor, just advises me that he is not present today. I would ask that of course he be called in.

THE COURT: You knew about this before. I'm not going to hold up this trial.

MR. JACKSON: I did not.

THE COURT: What do you mean you didn't? Didn't you get statements regarding -- and there are words missing from the photocopy -- didn't you get the statements of -- I assume it says police and detectives -- months and months ago.

MR. JACKSON: Absolutely. Then he states I was forced to try and remember everything that everybody said and I couldn't do it.

MR. MCGILL: interposes: I object to this. I think if Mr. Jamal, the Defendant in this case, decides he is not going to give

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statements until the very last minute to his attorney, that's on him. I don't see any reason why this trial should be delayed.

Now Mr. Jackson has said expressly and implicitely that he didn't even have the statements of the witnesses who were taking the stand, and he further opines during the calling of character witnesses, I don't know what to tell the Jury the name I am going to call next because Mr. Jamal tells me who to call next and until that moment I am unaware.

Full discovery has been granted in this matter. But as a courtesy to Mr. Weinglass, we will provide whatever we have that he doesn't have.

THE COURT: Okay, good enough. We will adjourn until, well, first of all, I said you will have your answer to the PCRA by Monday noon.

MR. BURNS: Monday noon, Your Honor.

THE COURT: Serve a copy on the defense. We will reconvene on Tuesday. And we will reconvene in Courtroom 253. All right.

MR. WEINGLASS: May I have just a moment, Your Honor. I am going to be losing

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one of my Counsel because the Court wouldn't give us one day. If the Court will give me a moment, just a moment to consult with Counsel.

(Pause.)

MR. WEINGLASS: If the Court please: On Wednesday I handed up to the Court two orders: The order denying jurisdictional authority and another order denying recusal. Has the Court had an opportunity to review these and sign these?

THE COURT: Yes, I don't know if I had one for the jurisdiction. I ruled in Court on it. But I know I had signed the one on the motion for recusal. Is there one for the jurisdiction?

MS. FURIA: You haven't signed it.

THE COURT: Do you have it there?

MS. FURIA: Yes.

THE COURT: Counselor, the date that you mentioned, you said you don't have notes for December 21st of 81?

MR. WEINGLASS: That's right.

THE COURT: Well, what that was, according to the docket entries, it was a petition to photograph the Defendant while in

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custody at Philadelphia County Prison was filed. And on 12-21-81 the order was granted by Judge Ribner. So there are not going to be any notes, it may be a one-page thing that he granted the thing and the dockets will show that.

MR. WEINGLASS: It might be and it might not be.

THE COURT: Well, that's all it is according to the docket entries.

On 2-22-82, what happened then was omnibus motions were filed. And on, on 3-18-82, that omnibus motions were granted. And in addition, the petition to distribute questionnaires to proposed venire persons was filed. And on 4-1, what's that, 4-1-82, in Courtroom 613, defense request for a line-up of witnesses, Robert Chobert and Albert McGillity is hereby denied. The Court also denied defense attorney's request to submit questionnaires to prospective jurors. That was all done by Judge Ribner.

So basically that's all it is. You are not going to find any lengthy notes in that thing.

MR. WEINGLASS: Well, I assume that

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there was argument on the line-up issue.

THE COURT: There was no argument, the Judge made a ruling. If you want to know why he ruled, go see him. And he must have filed some sort of an order.

MR. WEINGLASS: We prefer to read the official record, with all due respect.

THE COURT: Well, read it, it is in the dockets.

MR. WEINGLASS: No, but we don't have the transcript of that meeting.

THE COURT: Well, you don't need the transcript. As far as the Supreme Court is concerned, they could interpret that. They know what that means. I know what it means. I don't need the notes in order to determine what that means. I don't care what the arguments were, the Judge made a decision, period. That's it.

MR. WEINGLASS: You don't need how the Judge made the decision or what comments --

THE COURT: Well, go ask him. I don't know how either. I am not here to, but this case went up on appeal, and the Supreme Court had all of that. If they thought it was an issue that needed any further explanation, they

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would have asked Judge Ribner to explain.

MR. WEINGLASS: They didn't have the transcript of the proceeding.

THE COURT: They don't need it, they see the order.

MR. WEINGLASS: Well, with all due respect, I believe the case law requires that they have the transcript.

THE COURT: Well, save that for the Supreme Court, because I don't have that idea.

MR. WEINGLASS: Could we have a copy of the Court's order denying the recusal?

THE COURT: I will have to make a Xerox copy. Unless you have a copy there, I will sign another one for you.

MR. WEINGLASS: I have copies, yes. Both of them: Jurisdictions and recusal.

THE COURT OFFICER: You want to conform these copies?

THE COURT: I will sign it for him and that's it.

MR. WEINGLASS: There is another order which I am tendering to the Court denying discovery.

MR. EISENBERG: Could I see a copy?

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(Pause.)

THE COURT: Okay (handing).

THE COURT OFFICER: Counsel (handing).

THE COURT: Today's the 14th, right. Does the Commonwealth want a copy of these things that I'm signing?

MR. EISENBERG: Yes, we do, Your Honor.

MR. BURNS: Thank you, Your Honor.

THE COURT OFFICER: I will get you copies, Judge. I will go get a copy.

THE COURT: All right. How about getting them copies for the other two. Frank.

MR. WEINGLASS: While we are waiting: There is a matter which I would like to bring to the Court's attention.

Seated at our table is Mr. Jonathan Piper at the far end of the table. And a member of the bar of Illinois.

There is one other matter, Your Honor. The Court knows, Mr. Jamal is in what is referred to as a Phase 2 status on death row at S.C.I. Greene. As I understand it, he is entitled to be counseled by a spiritual advisor. And he does have a spiritual advisor, Mr. Steve

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Wiser. W-I-S-E-R. Wiser. And he is a member of the Bruderhof -- B-R-U-D-E-R-H-O-F -- Community, which is a religious order that has been in the Commonwealth as I understand it several hundred years. And he has served as his advisor, but he needs an order of this Court in order to see Mr. Jamal during this period of time. And I would ask the Court to indicate it's agreement that Mr. Wiser may visit with Mr. Jamal while he is in Phase 2.

MR. BURNS: No objection to that, Your Honor.

THE COURT: All right, do you have any kind of an order for me to sign? I will be glad to sign it. If you don't have it now, give it to me whenever you can. All right.

MR. WEINGLASS: Later this afternoon.

THE COURT: Okay.

MR. WEINGLASS: Also, Your Honor, seated at Counsel's table is a legal runner who has been recognized and accepted as my legal runner in the City of Philadelphia. Miss Jennette Patton.

THE COURT: Who?

MR. WEINGLASS: Jeannette --

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J-E-A-N-N-E-T-T-E -- Patton -- P-A-T-T-O-N. And she has been working with me because I'm unfamiliar with the City, and assisting me in terms of my investigation. And she has been recognized and accepted by the Department of Corrections as my runner. And has been accorded privileges to visit with Mr. Jamal on that basis by the Department of Corrections.

THE COURT: If they allow it there is nothing for me to do. As long as they allowed it it's all right by me.

MR. WEINGLASS: I believe while Mr. Jamal is here, and he has being kept at Graterford temporarily, we would need an order from the Court to allow her --

THE COURT: I don't think you need that. If they already recognized her. What do you need an order from me for? If the Corrections has a problem with it let them call me.

MR. WEINGLASS: This is the problem that Corrections does have. Under the rules of Phase 2 an inmate is only allowed to see his Counsel and his immediate family. And I would just ask while we are about to proceed here with

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a hearing, that Mr. Jamal be permitted, because I am in New York, to meet with my legal runner.

THE COURT: Well, you have a lot of Counsel here. I don't know how many you have here.

MR. WEINGLASS: None of them are from Philadelphia.

THE COURT: It doesn't make any difference whether they are from Philadelphia. They could go there and see him. Look, I can't get into a squabble with the Department of Corrections. If they have a certain rule, that's it. If they won't bend on it. Let them get in touch with me. I don't know, I am not going to get into a squabble of how they run the prisons. If that's their rules that's their rules.

MR. WEINGLASS: The Court is suggesting I should have the Department of Corrections call Your Honor.

THE COURT: Yes, if there is a problem. I am not going to get into a squabble with the Department of Corrections. I don't run the prisons. I don't let the prisons tell me how to run the Courtroom, and they don't let me

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tell them how to run the prisons. I am not going to get involved in that. If that's what Phase 2 says then that's what Phase 2 says.

MR. WEINGLASS: Phase 2 only requires that we get a Court order, and that's what I am asking.

THE COURT: Well, then let the prison call me and let me see what they need. If they have a problem with it, let them give me a call. I don't know what their problem is. We will adjourn, then, gentlemen, until Tuesday morning.

MR. GRANT: Yes, Your Honor.

MR. BURNS: Yes, Your Honor.

THE COURT: The defense ought to submit to the Court a list of your potential witnesses.

MR. WEINGLASS: Pardon?

THE COURT: Could you submit to me on Monday afternoon sometime the list of the witnesses as you are going to call them. So that everybody knows who is going to be called so that they don't at the last minute, I don't want the Commonwealth at the last minute to say we didn't know they were going to call them. So

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just in the order that you are going to call them.

MR. GRANT: May we also have Counsel's requested additional discovery names so we can have that done over the weekend?

MR. WEINGLASS: Page 8 of the motion.

THE COURT: He said it is on page 8. All right?

MR. WEINGLASS: Fine.

THE COURT: Okay.

THE COURT CRIER: This Court stands adjourned until 1O:OO a.m. Tuesday morning, Courtroom 253.

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(The hearing was adjourned at 12:30 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