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Verfahren gegen Mumia Abu-JamalPCRA-Anhörung vom 18. Juli 1995 |
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IN THE COURT OF COMMON PLEAS
- - - - - PCRA Hearing - - - - - July 18, 1995 - - - - - BEFORE: THE HONORABLE ALBERT F. SABO, J. - - - - -
- - - - - TRANSCRIBED BY: CHARLES M. GORGOL |
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Page 2. ALSO PRESENT:
Page 3. - - - - - (At 10:20 a.m. the hearing was convened in - - - - - THE COURT: Good morning, everyone. I just want to remind the spectators once again that while in this Courtroom everyone will respect the proper decorum. Any outbursts of any kind, the person will be evicted and not be able to return. MR. PIPER: Jonathan Piper on behalf of Mumia Abu-Jamal, presenting our emergency motion to reconsider the order scheduling the hearing date. Your Honor, we have said from the beginning that if this Court handles this hearing it will not be fair and will be perceived by the world as an unfair hearing. After two days in this Court the world has already spoken. The Inquirer Sunday said the behavior of this Judge in this case was disturbing the first time around and in the hearings last week he did not give the impression to those in the Courtroom of Page 4. fair-mindedness. Instead, he gave the impression damaging in the extreme of undue haste and hostility towards the defense's case. And Senator Arlen Spector told the Republican National Committee that this case is being handled as a rush to judgment. Specifically, he noted that Judge Albert Sabo yesterday ordered that a hearing on Mr. Jamal's post-conviction appeal proceed, quote, but the hearing's going to be on Tuesday, without sufficient interval for review of documents and preparation. He said that you can not maintain a penalty as severe as the death penalty without being meticulous in how it is being applied. So as we predicted, Your Honor, there is, to say the least, an appearance of impropriety in all of the orders that the Judge entered last week. We were scheduled for a hearing on Wednesday, the correspondence was clear that the only issues to be presented, the only issues were the recusal motion and the stay of execution. Your Honor denied the recusal motion on Wednesday and continued the stay motion for briefing on Friday. Then on Friday you insisted on proceeding to discovery, when we Page 5. had not had a chance to even review the Commonwealth's papers or to present argument. Mr. Weinglass was not even allowed orally to argue the question. And our discovery motion seeking the suppressed evidence which is necessary to prove Mr. Jamal's innocence which has been suppressed for 15 years by the Commonwealth needs to be ferreted-out. But Your Honor will not permit that. Then, with no prior notice that a scheduling issue would be presented, Your Honor peremptorily ordered a full evidentiary hearing on every one of the 19 claims raised in this Petition (displaying) on two Court days notice. That we were supposed to prepare the many witnesses we will need to present these claims, to find them, to subpoena them, to bring them into Court on just two days notice. That is completely unreasonable and everyone knows it. What is happening these two days? Well, for one thing, although Your Honor refused to grant us any discovery of the suppressed evidence, we got a handful of the witness statements that had previously been in the possession of Tony Jackson which were sent to us Page 6. by the Assistant District Attorney, including the key statement of Officer Gary Wakshul, proving that the State's confession claim is a fabrication. Officer Wakshul was there in the police van and he was there in the hospital. You may recall Inspector Alphonse Giordano at one point put forward the story that Jamal confessed in the van. Giordano, who has simply since been thrown off the force after he pled guilty to corruption, who was known as one of Mayor Rizzo's favorite cops in the civil disobedience surveillance of the Black Panthers and other left organizations in the early '7Os, but Gary Wakshul was there and he says, quote, the Negro male made no comments. Then we have the alleged confession in the hospital, cooked up by Officer Gary Bell two months later, again Wakshul was there, quote, during this time the Negro male made no comments. We've asked for the logs of Officer Bell from the night when he supposedly heard these comments. The Commonwealth says there are no such logs and they won't produce them. We are entitled to that evidence. Your Honor says you are not required Page 7. to follow the local PCRA rules of this Court. But I believe you will not dispute that you are required to follow the Pennsylvania Rules of Criminal Procedure, specifically Rule 1508, which says an evidentiary hearing will be on the material issues of fact raised by the petition and the answer. Well, we did not even get the answer framing the issues in their view until an hour late yesterday afternoon. So we've had about 15 hours to have it in our possession. That is not by any means enough time to review the factual or legal assertions that they have made. And at the same time Your Honor is requiring us to try to find and subpoena witnesses. As Mr. Weinglass tried to explain to you on Friday, our investigator is not here this week because his wife is hospitalized for surgery. That did not faze Your Honor so we found another investigator, who was willing to cancel his vacation with his family in North Carolina to come in. And he arrived Sunday afternoon and has been working full-time with sleepless nights to try to get this case ready on such short notice. But this is an impossible task and a complete denial of any kind of due Page 8. process. How can we get the witnesses we need on this short notice? What about prosecutor McGill? His legal office balled up the subpoena that we served and threw it out the door. Then Mr. McGill called the Court directly to say that he will be tied up in Federal Court and not available until next week. How about Officer Wakshul? What do you know, again he has disappeared. He called in sick to work yesterday and could not be found at home. This is the man who Your Honor found was, quote, on vacation at the time of the trial and so he was not allowed to testify about this phony confession theory. Your Honor, the only way that a fair hearing could possibly go forward is with a 60-day continuance to permit the defense the, quote, reasonable opportunity for investigation and preparation which is required by the rules. That we be allowed to take discovery, to get at the suppressed evidence, that we be allowed to get at the ballistics evidence, to examine it since the proper tests were not done before the trial by the Commonwealth and since the defense Page 9. was not given the money it needed to hire an expert to test it. We need to get at the medical and autopsy evidence which was not provided to the defense which shows the incompetency of the autopsy proceedings, which shows that the examiner thought this was a .44 caliber bullet, not a .38. We proceeded yesterday before the Pennsylvania Supreme Court and Mr. Eisenberg and myself had a teleconference with the emergency Justice of that Court. He said it was premature to decide this question on appeal because Your Honor may continue the hearing today. But that if Your Honor does not continue the hearing, the issue will be ripe for decision in the Supreme Court. We were not even allowed to visit with our client over the weekend to discuss the preparation of witnesses. And Mr. Eisenberg has the gall to assert well why do we need to talk to our client about his case. The same attitude that this Court and the prosecution took during the trial when he was excluded from the Courtroom, denied any means to follow the Page 10. details of what was going on in the Court. THE COURT: Counselor, I don't like to interrupt you, but didn't you tell me that the attorneys were allowed to -- are you telling me that attorneys weren't allowed to meet with their client, has somebody denied you that right? MR. PIPER: Yes, Your Honor. THE COURT: Who? MR. PIPER: The prison. THE COURT: Why didn't you call me? All right, anybody acting up, you're going to go out of the Courtroom. I am not kidding. We are going to maintain decorum in this Courtroom. This Court is not going to be intimidated by mob pressure. Understand that. If the day ever comes that the mob can control the courts, then, indeed, we are in dire circumstances. I will not tolerate it. No threats, nothing is going to intimidate this Court. No mob pressure is going to intimidate this Court. MR. PIPER: Let the record reflect there was only a low murmur in the Courtroom. Page 11. THE COURT: Well, if it is a low murmur, I don't want a low murmur. I don't want a loud one. I don't want anything. I want quiet in the Courtroom. All right, Counselor, but I will take it up with the Commissioner if that's what you want me to do. MR. PIPER: We have tried to present that to you, Your Honor, yesterday. THE COURT: You told me that you were entitled to see him. You said so. I signed an order for his religious man to see him, his minister, why wouldn't I allow you to see him? MR. PIPER: Your Honor -- THE COURT: Please don't. Please. MR. PIPER: Could Miss Wolkenstein address this issue in more detail in terms of what happened? MS. WOLKENSTEIN: Yes, Judge, I attempted to see Mr. Jamal over the weekend on Sunday. And I made several phone calls to the prison, both starting at nine o'clock in the morning and continuing until four o'clock in the afternoon. I spoke to the supervising lieutenant and captains on the morning shift and Page 12. the afternoon shift. Phone calls were placed to the assistant to the superintendent by the name of Alan Lafay, who supposedly, I was told, tried to contact, he would try to contact the superintendent. In any event, Mr. Lafay, who what I have been told is the person who grants such a permission, so called special permission for attorneys to visit, said he would not allow an attorneys' visit even though all the details were put before him. The fact that we were compelled to proceed with the hearing on Tuesday, the fact that we had just received new materials from the prosecution over the weekend, that we were under this very tight schedule, not to mention the fact that the date for execution -- THE COURT: Why didn't you call me? MS. WOLKENSTEIN: Judge, to be very honest, I didn't call you because I knew that you would be unavailable as early as three o'clock. THE COURT: No, there is a City Hall operator that will contract me. MS. WOLKENSTEIN: The idea that you would be able to be reached, very honestly, Page 13. given what was going on in the Court absolutely was beyond the capacity -- THE COURT: You had a parade in front of my house: You knew I had to be home. MS. WOLKENSTEIN: Your Honor, what I understood from Mr. Piper, the question -- THE COURT: I don't care about Mr. Piper. I am telling you if you have a problem, you call me. MS. WOLKENSTEIN: Next time I will, Your Honor. But I want to make the point since you asked the question why not: Mr. Piper relayed just further confirmation of the problems here, but when he produced the order to you on the question of Steven Wiser being appointed spiritual adviser you gave him a hard time about it. THE COURT: I gave nobody a hard time. I signed it. MR. PIPER: After giving me a hard time. THE COURT: When did I give you a hard time, Counselor? MR. PIPER: Yesterday, after I told you we were not permitted -- Page 14. THE COURT: No, yesterday you wanted to proceed with these proceedings and I said Mr. Jamal wasn't here, we would not do it, I would continue it to today when he was here because I don't want him to accuse me of having some hearings out of his presence. MS. WOLKENSTEIN: Your Honor, in point of fact -- THE COURT: In point of fact I didn't give him a hard time. I signed the order. When it was given to me I signed it. MS. WOLKENSTEIN: Excuse me, Your Honor, the point of fact is that we had a Court date to begin testimony in -- THE COURT: I know that, I know that. But he is talking about you didn't have permission to see him. And I am saying to you next time it happens call me. MS. WOLKENSTEIN: Your Honor, point -- THE COURT: The telephone operator here at City Hall will contact me. MS. WOLKENSTEIN: Would there be a standing order entered as of this moment to the Department of Corrections that as attorney for Mister -- Page 15. THE COURT: Did you give me such an order? MS. WOLKENSTEIN: Could I finish? THE COURT: You don't have to finish. Give me an order and I will sign it. MS. WOLKENSTEIN: We can have an order -- THE COURT: Give me an order and I will sign it. MS. WOLKENSTEIN: -- on the record. The order that you will be requested to sign. I will handwrite it out. THE COURT: Don't handwrite it. Print it or type it. MS. WOLKENSTEIN: Would be that Defendant Jamal should have access for legal visits in the evening, daytime and the weekend upon phone call to the institution. Will you agree with that, Your Honor? THE COURT: Counselor, prepare an order for me. MS. WOLKENSTEIN: Would you sign such an order? THE COURT: Prepare an order and let me call the prison, I want to find out what Page 16. their problem is. MS. WOLKENSTEIN: You will sign -- THE COURT: Counselor, I will sign an order permitting you to see your client. All I want to do is to have the courtesy to call the prison. I want to know why they didn't allow you and if there is some problem of which I don't know. After all, I don't run the prisons. MS. WOLKENSTEIN: Everything had to be negotiated from nine o'clock to four o'clock on a weekend. And that was the reason. Since it hadn't happened during the weekday they were not going to allow it, despite all of the emergency nature of these proceedings and how quickly we were going. THE COURT: Counselor, prepare an order. I will contact the prison: I want to find out if there is a problem. If there is a problem I am going to have them come into this Courtroom and see what the problem is. MS. WOLKENSTEIN: I will make an appropriate order. I will present it this afternoon. MR. PIPER: To clarify the issue of calling you on the weekend: Over the weekend, Page 17. we tried to present this matter on Monday and not only did your clerk tell me you were very upset that we were disrupting your scheduling -- THE COURT: No. MR. PIPER: But that -- THE COURT: Nobody speaks for me, Counselor. Didn't I come into the Courtroom? MR. PIPER: And you told me you would hear it today. THE COURT: Right. I asked you did you have Mumia Abu-Jamal brought down and you said no. And I said I was not going to go forward unless he was in the Courtroom and I said so we will continue it to today. So now you have your opportunity. He is present. MR. PIPER: Your Honor, to summarize -- and the New York Times Magazine again confirms -- THE COURT: Are we going to try this case on the news media or are we going to try it in this Courtroom? MR. PIPER: Your Honor, the issue -- THE COURT: I don't care what the news media says about me or about anything else. Try the case in this Courtroom under the law and Page 18. under the rules as they now exist, okay. MR. PIPER: The legal standard is whether these proceedings appear to be fair to the public at large, and it is incontrovertible that the answer is no. THE COURT: Well, that's your opinion. And as I said to you before: Mob pressure will not control the courts. If the day ever comes that that happens, boy, we are in real trouble, all right. MR. PIPER: Your Honor, it was the Fraternal Order of Police which began sending telegrams to the judges saying that Mumia should not even been allowed out on bail. Mr. Jamal, when he was first arrested. So you don't need to tell us about the mob. And we do not think that Arlen Specter or the Philadelphia Inquirer or the New York Times editorial board are generally considered to be the problem. THE COURT: Well, Arlen Specter wants to make political hay out of this case. That's fine, he's running for president, that's his business. But Arlen Specter is not the Judge and is not a Justice of the Supreme Court of Pennsylvania or the United States. Page 19. MR. PIPER: The issue is how these proceedings can have any appearance of fairness before Your Honor given not only your history generally, but your history in this particular case and your history last week. THE COURT: Counselor, you can be as insulting as you wish, but that's not going to move the Court, okay. MR. GRANT: Your Honor, if I may: I believe this is nothing more or less than a thinly veiled attempt to revisit the recusal issue which Your Honor so aptly decided. Can we get on with this hearing or not, Judge? THE COURT: I would hope so. MR. GRANT: Why do we have to rehash the history of the proceedings? THE COURT: Why don't you just stick to whatever you are trying to prove now. MR. PIPER: The point, Your Honor, is that these proceedings will not be fair if Mr. Jamal is required to go forward on two Court days notice for reasons of due process in this capital case where heightened scrutiny, the most careful consideration is required. There must be a continuance and our motion should be Page 20. granted. MR. EISENBERG: Your Honor, Ronald Eisenberg for the Commonwealth. I believe that the authority that has been cited, the only authority, quote unquote that has been cited by the defense on this motion for reconsideration establishes that the true nature of the defense proposition, the piece of, quote unquote, authority that the Defendant talks about is a comment from the media, from the press. No law is cited to Your Honor for the proposition that you can not hold a hearing as Defendant requested in his PCRA Petition, merely comments from the press, in order to make the point that the world is watching and we should do what the world thinks is the right thing here. It's precisely because the world is watching, Your Honor, that it is time to hear these complaints, these charges of an unfair trial, of a conspiracy. The defense PCRA Petition makes out claims that this Defendant has been railroaded through some gigantic law enforcement conspiracy going back to his teenage years, and it is time now to hear these allegations and to put Page 21. evidence on concerning them. Now, the Defendant says that he is not being allowed to do that in a fair way and he keeps talking about two days were the applicable time period here. It is not, and it is beyond me how the defense can ignore the true period of time that we are talking about. The defense has admitted beginning to work on this case, on these allegations at least as early as 1992, three years at the very least; and they produced immediately after the warrant was signed a 300-page Petition which detailed affidavits from fact witnesses who the defense said would show that he was improperly convicted and that he was really innocent. And those affidavits were almost uniformly dated at the end of May of 1995. The Defendant had those witnesses and their statements, that evidence, in 1995 in May, and filed a Petition on June 5th, after three years of work. And now he says suddenly that we are talking about a two-day period. It was three years before the Petition was filed and it's been six weeks since the Petition is filed. We are not talking about two days. We are talking about three years and then Page 22. another six weeks since the Petition was filed in order to hear evidence that the Defendant said he had then, not that he has to develop now. Evidence that he said that he had then and he submitted to this Court affidavits to show that he had that evidence. Now the Defendant says that he hasn't really had a fair chance, he hasn't been allowed to argue discovery. This Court made it clear what it saw as the discovery issue here: Whether there was a right to discovery at the Post-Conviction Relief Act stage. The Defendant ducks that issue, they refuse to confront that issue. The Court said I don't know how many times in hearings last week, you bring me some law on that to show that there is a right to that sort of discovery and I will reconsider my ruling about the discovery. There has been no law offered, the subject is not even mentioned by the defense. They studiously ignore the Court's invitation, yet go on and on complaining about how they were denied discovery, despite the exact words of the Court inviting them to present you with legal authority. The discovery, as we have pointed out, Page 23. is a pre-trial rule. These materials were turned over to the defense before trial. Not only were they in possession of the defense attorney, but we know from the record which was recited, quoted last week, we know that these materials were turned over to the Defendant himself. And that indeed trial Counsel had difficulty because he did not have ready access to the materials that were in the Defendant's possession. Yet the defense says here today and complains that they haven't had enough time because we are talking about materials that they say that they have a right to now that were actually in the Defendant's personal possession 13 years ago. And as the primary example of these documents that they say that they need, they refer to a statement of Officer Wakshul that they say that we just turned over to them. And this is a particularly disturbing allegation since the defense knows full well that they had the statement of Officer Wakshul at the time of trial 13 years ago. Not just from documents and correspondence between Counsel, but because that statement was referred to in the trial record by Page 24. the Defendant himself. They had that statement 13 years ago, and they come into Court today and say that this hearing is too rushed because they just got it two days ago. As Your Honor recalls, last week the defense said we want some materials which we know you already turned over but which we can't find again. And out of courtesy we said fine, we will give you those materials, tell us which ones. And they told us, and that same day, Friday, we sent to them every document that they requested at that point. Every statement that they said we know we had them before but now we don't have them, please give us a copy, we gave it to them the same afternoon. And another copy of the Wakshul statement they had 13 years ago was in that package of materials. And the allegation that there is some reason for delay because they are just seeing this is preposterous and offensive. Now, the defense also argues that the Court is not following the local rules. That they need these 60 days that the local rules provide. This mysterious 60 days: There is no such thing in the local rules. The local rules Page 25. don't say we get 60 days from whenever we declare that we want 60 days. The local rules say -- and I will quote here -- if fact witnesses are to be called in an evidentiary hearing, you must supply affidavits of those witnesses to the Court and the Assistant District Attorney setting forth the substance of his or her testimony. Such affidavits must be filed at least 30 days prior to the date of the hearing. The affidavits were filed on June 5th, 1995. Today is July 18th, 1995. That is more than 30 days ago. The local rules go on: If an evidentiary hearing is granted, you must make immediate arrangements to have your witnesses present for the hearing. That is what is happening. The Court has informed the defense that it is willing to have an evidentiary hearing on the PCRA Petition. The Defendant asked for that kind of hearing. He said here are my affidavits right here; right now. And the Court said fine, I will give you a hearing, and the hearing is to occur more than 30 days after the filing of the affidavits. I am getting tired of hearing Page 26. repeatedly about the violation of the local rules when there was no such violation. Even assuming that it mattered. Even assuming that the non-capital, PCRA judge's procedures, which is what we are talking about, were binding on this Court, even assuming that this Court were bound by those procedures, there has been no violation of those rules. THE COURT: Isn't that rule for the benefit of the Commonwealth? MR. EISENBERG: It certainly is, Your Honor. THE COURT: And if you are willing to waive it, why do I care? MR. WEINGLASS: If it had been less than 30 days, Your Honor, that is absolutely right. The reason that that period of 30 days is built into the rule is to give the Commonwealth adequate opportunity to investigate the defense allegations. Now, as it happens, it's been more than 30 days. But even if it had been less, the Commonwealth could choose to proceed earlier. We have a certain number of days to file an answer, for example, to the PCRA petition. I believe we have 90 days under this Page 27. set of procedures in the normal -- THE COURT: I didn't give you 90 days. MR. EISENBERG: The Court didn't give us 90 days. We got less time. Why is it important to move ahead? Two reasons, Your Honor. First of all, because as I said, it's the defense which puts these allegations out about the rule. They stand here today and repeat them. Even today they go into detail about the various reasons why their client is really innocent and how he has been railroaded by the system. And yet when we say fine, let's hear the evidence, they say no. They want to continue to argue the merits of their claims in the press. They want to refer to the New York Times and the Daily News or The Inquirer, whoever, and say here, here is what's wrong with what happened to our case. They are not standing back from giving the details of these allegations to the press. They are not telling the press, oh, excuse me, Mr. Reporter, Ms. Reporter, we haven't had enough time to investigate our allegations yet, give us a chance, give us 60 days and we'11 come back to you so that you could write your story. They Page 28. are telling the press right now and last month and the month before and for months the details of these allegations that show that their client is wrongly convicted. And they have filed those detailed allegations in Court filings on paper, and yet now they say we can't proceed. They are ready enough when it comes to talking about it to the press, but when it comes to talking in Court, suddenly they are not ready. Now, Mr. Piper also refers to the Rules of Criminal Procedure, Rule 1508, which say that the hearing shall be held on the basis of the defendant's PCRA petition and answer. But the Rules also say that the Commonwealth need not file an answer at all. The Rules do not require the filing of an answer. A hearing can proceed without any answer. And again, as usual, we hear no specifics from the defense about what it is about the answer or about not having an answer that somehow precludes them from going ahead with the hearing. The Court didn't order them to have 19 witnesses here in Court today, or 25. The Court didn't say you are having a hearing starting Tuesday and Tuesday afternoon it is going to be Page 29. done and you have to have everything ready to go on Tuesday or you're out of Court. What the Court said is we are starting on Tuesday. We are started. So what the defense position is in effect is that they shouldn't be required even to be able to get a single witness, anybody at all to come and testify today. Nobody. Despite having detailed factual affidavits dated in, May of this year, suddenly these witnesses are not available for a hearing. The defense obviously believes that they don't have to prove their allegations, that the setting of the execution date merely means that all they have to do is come into Court and say Judge, we've got all these allegations, therefore you've got to overturn the Governor's setting of the execution date. You've got to ignore that, you have to put it aside like it was worth nothing. But that's not the case, Your Honor. That was a solemn legal act on the part of the Governor setting the execution date. He didn't rush to it. It's been sitting there waiting for years and years. The Governor could have signed an execution warrant as soon as the litigation in this case was over. Page 30. There hasn't been anything, any litigation in this case since 1992. It was, actually, basically over even earlier than that. And nobody acted. Nobody rushed them. Nobody signed a warrant. They had their years to investigate, to draft their Petition, to get their affidavits. And then all of a sudden when the warrant is signed and they file they say now we don't have enough time anymore. They admitted to the press, to which they wish to address their claims so freely, that they would not file their Petition until after the Governor signed the death warrant. And presumably if that had been a year from now we wouldn't have this PCRA Petition for another year. If it had been earlier, that's when we would have had the PCRA Petition. They intentionally waited until the death warrant was signed and now they say that because we waited, because we delayed, because we chose strategically not to show the Court the claims that we were showing the press, the Court has to back off of the execution date, the Court has to let us control the scheduling here. And it's not up to the defense to control the scheduling. Page 31. We are talking about a period of years. And it is appropriate for the Court, given that period of years, for the Court to schedule this proceeding, for the Court to control the scheduling. And when the Court knows that the defense has had a minimum of three years to put this together, when the Court knows that the defense indeed did put this together and was able to file it the day after the warrant became public, it is appropriate for the Court to proceed with a hearing. Now, the defense has made a reference to going before the Pennsylvania Supreme Court, as if somehow the Pennsylvania Supreme Court is eager to act in this matter. And I thought that that point also deserved comment. What happened was that I received a call from the Court yesterday at 5 p.m. asking me for my response to the defense motion. The defense motion, however, had not been served on the Commonwealth at that point. And the Supreme Court Justice was very concerned about that. He said I have a certificate of service here signed by the defense attorney which says that you have already served this on the Commonwealth but you Page 32. now concede that you haven't, and I'm unwilling to proceed on your motion which you concede has not been served on the Commonwealth. And it is understandable how the Supreme Court Justice at five o'clock at the end of a business day, on a alleged emergency motion, would be reluctant to proceed where both sides had not had notice of the proceedings. The Court also said, however that it wondered what it was that the defense had been doing with this case since June 5th when the Petition was filed. And I think that is a very good question, Your Honor. They came to Court on June 5th after three years of work and said we want a hearing; and now Your Honor wants to give it to them and they say oh, no, we don't actually want a hearing, not now, maybe at some point down the line. And all we are trying to do is start that process. To advance the process, given that we have an execution date, which just shouldn't be thrown out like so much toilet paper. We have a signed warrant of execution. We have allegations that are being made daily in the press around the world, and the world should Page 33. begin to hear the evidence on those claims. Now, the defense also argues that they can't possibly proceed because, as yet another example of the system's efforts to railroad their client, they are not being allowed to see him in prison. And I think some details need to be added here as well, Your Honor. As the defense knows, the procedure of the prison is to allow freely counsel visits during weekdays; weekend visits require special permission. The procedure is you call on Friday, you get that permission. When Ms. Wolkenstein called over the weekend she said yes, I didn't call on Friday, I was busy, let me try to see the Defendant. And the prison said we can't arrange that consistent with our procedures. Now, I understand that Ms. Wolkenstein was busy. We've all been busy. Everybody gets busy when a case goes into litigation just before the execution date. Every death case in this State and the country results in a flurry of activity when the defense waits until the execution date to begin litigating. That's the way it works. And if they say that they've had Page 34. experience in handling other death cases then they know that perfectly well: It's going to be busy in this period. Your Honor has already offered to make arrangements to allow access in a freer manner if that is what is necessary, but there is certainly no allegations, no explanation of why it was necessary to see the Defendant on Saturday or Sunday versus Friday or Monday in order to be able to proceed today. He is not one of the listed witnesses. There is no affidavit from the Defendant. He's been in Court and with Counsel throughout. Ms. Wolkenstein has been visiting him in prison frequently. The prison records show, indeed, that Ms. Wolkenstein's visits to the Defendant begin in, I believe, 1987, eight years ago. And there is certainly sufficient opportunity to consult with the Defendant in order to at least begin these proceedings. That's all we are talking about is just starting. Now, the defense says they couldn't deal with the Court because they've tried to deal with the Court and you wouldn't let them yesterday when they came before you. And I think again some details need to be stated for Page 35. the record here. On Friday afternoon we received a call and a letter from the Defendant, from the defense saying that they were in effect declaring a hearing for Monday morning. There was no Court proceeding scheduled for Monday morning, the Court was scheduled to reconvene today, Tuesday morning. But they said we're going to file something, we'll FAX you a copy over the weekend, Saturday or Sunday. And we are going to appear at the Judge's chambers Monday morning for a hearing. The Court had not agreed to schedule any such hearing. But despite the fact that the defense in effect was scheduling the Court for itself, the Court did agree to have a hearing, not in chambers but in an open, public Courtroom. And in fact, despite the Defendant's repeated claims today, last week, for months and years, that he has being excluded in these proceedings, no arrangements were made to have the Defendant present for this supposedly crucial hearing that the defense scheduled for itself yesterday. And so the Court said let's do it tomorrow when we know the Defendant is Page 36. going to be here. It's hard to see how there is something inappropriate about scheduling a hearing in a matter to allow the Defendant the access to the hearing that he is claiming he is being denied. And the argument that they couldn't come before the Court is ridiculous. I think it's important to remember in the end, Your Honor, the basic facts regarding the starting of this motion. The Defendant worked on his case as long as he pleased with his lawyers, with a whole team of lawyers and investigators for years and years and years, deciding to withhold those papers until the Governor signed the warrant, filing those papers the day after the warrant became public. And then, even then, six weeks later, claiming that he has not had the,opportunity to investigate and prepare. It is the defense that has delayed here. They have been allowed to delay. Now is the time to stop delaying and to put on in Court the allegations that they are so happy to make in detail in public. Thank you, Your Honor. We filed a written answer to the Page 37. defense motion which was served on the defense this morning. I don't know whether the Court has yet received a copy. May I hand up a copy of that (handing)? Thank you, Your Honor. MR. GRANT: In addition, Your Honor, preliminarily to their submission of witnesses, Your Honor asked them on Friday or rather. . . . . . . ordered them, to present to the Commonwealth a witness list with the order of witnesses they intended to have here today. We have the names of witnesses. And as Your Honor knows, under the Pennsylvania Rules of Criminal Procedure, 1508, we are entitled to the affidavits of any witnesses and the Petition that is their basis for moving forward in this matter. There is a Lydia Wallace, a Ruth Ballard, Ken Hamilton, E. Steven Collins -- none of whom were mentioned in the Petition. No affidavits appear or are forthcoming from these people. I would like to have an offer of proof and then I would like to reserve the right to move to preclude. In addition to which, since they can't find all their witnesses in such an untimely fashion, since Your Honor is rushing the Page 38. procedure, the Commonwealth has taken the liberty to subpoena their witnesses for them and bring them to Court so they could present their claims before the press and Your Honor. One Dessie Hightower, who is alleged to have taken a polygraph examination on 12-9-81 and to have passed, which information was apparently not given to the defense, which they perceive as exculpatory and Brady material, was subpoenaed for this date, this room, two hours ago. He has failed to appear. I would ask that Your Honor issue a bench warrant for his arrest. I have the original and copies of the signed warrants. MS. WOLKENSTEIN: Objection. MR. WEINGLASS: Here we go again with the intimidation tactics of the prosecution which was so evident during the trial and which formed the basis of our allegations. In the dark of night the prosecution as an aid to us subpoenas one of our witnesses and then comes before Your Honor and has the gall to say that this individual should now be arrested. I could almost rest the case of harassment on just what the gentleman has said in the last 10 minutes. Page 39. This is so typical. THE COURT: Counselor, I have been harassed too so what is the difference. MR. WEINGLASS: Your Honor, if that is the Court's response -- THE COURT: No, Counselor, he is just trying to help you. And can you have the witness in here on your own? MR. WEINGLASS: The difference is a man's life is at stake. Need I remind the Court. THE COURT: Counselor, I understand that, and I know when August 17th is coming, Counselor. I have it on my calendar, don't worry about it. What I am saying to you: Do you need any help in getting any of these witnesses in? MR. WEINGLASS: Not the kind of help that has them subpoenaed in the middle of the night and arrested the following morning. THE COURT: Well, nobody is arresting anybody yet. I am just asking, can -- MR. WEINGLASS: There has been a request made. THE COURT: Did you make Page 40. arrangements -- MR. GRANT: Your Honor, he was subpoenaed last week in the middle of the day, for Counsel's edification. THE COURT: You see, Counselor, I would appreciate it if you do not give me statements that are not true. I don't appreciate that. If you don't know say you don't know. But don't deliberately tell me something that is not true. I will not tolerate that in this Courtroom. MR. WEINGLASS: Well, Your Honor -- THE COURT: I look at you as an officer of the Court. And I am expecting you to be honest and true with me. MR. WEINGLASS: Let me provide the Court with a piece of information also. One of our witnesses was subpoenaed. THE COURT: Okay. MR. WEINGLASS: His name is Mr. Fassnacht. I believe it's George Fassnacht. He called me, he spoke to me last night. And he said to me that he was a little surprised, having been retained by the defense in this case, to find that he was being asked whether or Page 41. not he would now work as an expert for the prosecution. Mr. Fassnacht felt there might be something a little unethical going on here when he files an affidavit for the Petitioner, then he is subpoenaed by the prosecution and in a conversation they asked him if he will change sides and begin working for the prosecution. I represent to the Court I had that conversation. MR. GRANT: And I represent that is a total falsehood. THE COURT: See. Why don't you bring him in here? MR. WEINGLASS: We will hear from Mr. Fassnacht. THE COURT: Okay. MR. WEINGLASS: I will stand by it. THE COURT: Okay, let him take the stand and under oath let him tell us. MR. WEINGLASS: Let me say -- MR. GRANT: I don't think we should go any further without hearing that exposed. Mr. Fassnacht was one of their affiants who says the ballistics were so botched, the firearms examination was so poorly and ineptly done, had I been the expert, had Your Honor or Judge Page 42. Ribner paid me more money, this is what I would have exposed. So since he is an affiant and they seem to have problems getting their witnesses in, I subpoenaed all their witnesses, and I will have them here for them whenever they want. In addition to which I asked Mr. Fassnacht, well, since you believe that this was so ineptly done, sir, I don't think you got the evidence, do you think you could go and check it out now and come up with a better conclusion. That is certainly not working for me. He is still working for them, but I challenged him to back up what he says, just like we are doing for the defense. Of course he doesn't want to do that. That is the conversation, since you didn't participate in it. MR. WEINGLASS: Mr. Fassnacht's perception of that conversation was that was unethical, that he shouldn't be asked to perform a test since he was retained by this side. It is an elemental procedure. And that's what happened. I think Counsel just acknowledged that. They asked him to do a test for them when Page 43. he was retained by this side. Now, I want to address the obfuscation here. This Petition -- Which, incidentally, includes the affidavit of Lydia Wallace, Counsel, you haven't read the full Petition. It is attached as an exhibit. This Petition, which was filed an June 5th, 1995, is akin, and I will make the analogy, to a civil complaint. We did not go to the media; we filed a Petition which was a public document and the media read it and questioned us about the public document. And it's all contained, as they say, specifically and in great detail. Now, what happens after that in the ordinary course? In the ordinary course the Commonwealth files an answer to the document. And they did. When did they file it? They filed it at one o'clock yesterday afternoon. And what did they say their answer does? They say that their answer -- I will get it in a moment. This is what they said. Well, I'm I sorry. The primary purpose of this answer is not to discussion the legal merits of the Page 44. Defendant's claim, to the extent the underlying claims may be cognizable, but to identify, and here I have put in the primary answer, is not to discuss the legal matters that the Defendant claims, but to identify to the extent the underlying claims may be cognizable any disputed issues of fact. So we go to the answer yesterday.. Now we are proceeding on track. A complaint has been filed, an answer has been filed (displaying). They have defined the issues of fact. They do, for 163 paragraphs of this Petition, they say certain paragraphs are denied, certain paragraphs are admitted. Now, in the ordinary course, Your Honor well knows this, in civil litigation, we now have the issues joined. What happens? The hearing doesn't happen the next day. Never. What happens is discovery occurs. THE COURT: Counselor. MR. WEINGLASS: Investigation occurs. THE COURT: Counselor, as I said to you before, that is pre-trial. We are now in PCRA. And as I said to you, Counselor, if you could show me a statute, a case, a law, anything Page 45. that would justify that, fine, I will reconsider my order. But you haven't done that. MR. WEINGLASS: We have done that. THE COURT: No, you haven't. MR. WEINGLASS: Yes, and Mr. Piper will give it to the Court, which we did give it to the Court on Thursday last. We will repeat it. The local rule provides for discovery. The word discovery -- THE COURT: The local rule does not provide for discovery in a PCRA matter, Counselor. MR. WEINGLASS: Your Honor, well, I will allow Mr. Piper to address that. MR. PIPER: Your Honor has all the authority in the world to permit us discovery. And given the allegations we have made it's clearly appropriate and necessary. Rule 1508 says that we -- THE COURT: Is that the Criminal? MR. PIPER: Rule 1508 of the Criminal Rules of Procedure. THE COURT: That is pre-trial. MR. PIPER: Governing post-conviction relief. Rule 1508, Your Honor, states that we Page 46. must have a reasonable opportunity to prepare and investigate before the hearing and that the Court shall enter any order necessary in the interest of justice to let us prepare and investigate. Of course there are many other statutes which give this Court the power to enter any order necessary to preserve and facilitate it's jurisdiction. And the case law from Pennsylvania and from the Federal courts and other state courts are clear, that regardless of whether there is an express discovery provision set out in the post-conviction rules, discovery should be entered where there are allegations of suppressed evidence, Brady issues, issues of favorable evidence that was concealed by the police and the prosecution. That should be discoverable. We have cited the Federal cases, such as Mayberry versus Petsock. We cited this to you Thursday. Which says that in determining whether to grant discovery you just need to look at the four corners of the petition. There is also the Pennsylvania case of Commonwealth versus Bryson, 421 PA Superior, 618 A.2nd 420, which says that, which quotes New Page 47. York cases, saying that even though New York doesn't provide for discovery in it's rules, of course it should be allowed in post-conviction proceedings when necessary. And that's a Pennsylvania case approvingly citing that standard. So to answer your question, Your Honor, we have cited you amp1e authority showing that you have the power to grant discovery. And if you would like to now turn to the specific discovery requests which should be entered, we would be happy to address those. THE COURT: Well, let me first hear from the Commonwealth. What is your answer to that? MR. EISENBERG: Your Honor, I am shocked and amazed to hear the allegation now as compared to the allegation a half an hour ago that authority has been presented to Your Honor on the question of discovery. When Mr. Piper first spoke this morning, you will recall that he said that they were denied any opportunity at all to argue about discovery and therefore they couldn't proceed today because Your Honor wouldn't even hear argument about discovery. Page 48. And now they said oh, yeah, we already gave all that to you last week. But if they already gave it all to you last week then they weren't denied the opportunity to argue about discovery. The point is that what they gave to you last week, which wasn't given to you for the purpose of arguing discovery at all, doesn't establish that they are entitled to discovery. They cited Rule 1508 last week, sure. Rule 1508 doesn't provide for discovery. It doesn't say, as Mr. Piper just purported to quote, that the Court in the interest of justice can grant discovery to let the defense investigate and prepare. What it says is the Court shall enter such interim orders as may be necessary in the interest of justice, no reference whatsoever there to investigating or preparing. In fact, the point at which Rule 1508 comes into play is after a petition has been filed and a hearing is going to proceed. There is no reference here to using that interest of justice language in the rule in regard to discovery. There's no practice of it, there is no precedent for it. They don't cite a single Pennsylvania case applying this vague, general Page 49. language to say gee, when we talk about interests of justice, what we really meant is giving us discovery. They don't say that. They don't give you that. Now, last week on Friday, as Your Honor will recall, after we presented our response to the discovery request, and pointed out that these materials had been given over to the defense before trial 13 years ago, the defense said there were some things that they didn't have anymore even though they were originally given over to the defense and as far as the record shows were in the Defendant's personal possession. So we said tell us what those things are and we will give them to you again. And they told us what they were. They gave us a list of those statements and we gave them to them again, even though they already had them and even had referred to some of them at trial. And now they say that there is some sort of right to discovery. None of the cases that they have cited in support of their request for a stay said that they had a right to discovery. These were all Federal cases that were cited to Your Honor, Federal habeas corpus cases which Page 50. dealt with the issue of a stay of execution, not discovery. There was one case that they talked about, I believe it was McClesky versus Zant, here they referred to the word discovery. And when you look in the opinion, what you will see the opinion discusses, of the United States Supreme Court, is that that defendant can't use his failure to discover evidence as an excuse for delaying his request to have his execution put aside. If the evidence could have been discovered, was discoverable, then the defendant should have gone out and found it and presented it to the court in support of his effort to put his sentence aside. Now, that use of the word discovery is hardly what Counsel is talking about today. Discovery in today's context is a legal term of art, a special word in the law. And what it means is not just finding something the way that Columbus discovered America. What it means is when is there an obligation on the part of the other side to turn over information that it has to you. Not when do I have an obligation to discover things on my own, to investigate on my own, but when can I force the other side to do Page 51. it for me. That's what discovery in the technical-legal sense means. That's not what the cases on which they relied for another proposition talked about, as the cases that they gave the Court last week. What those cases made clear when they speak about the defendant having to discover information is that. It is the defendant's obligation at this point to go out and investigate his case, discover evidence, if he believes that it exists, present it to the court, and on that basis ask for the execution to be put aside. That is an opposite meaning of the word discovery from the purpose for which it is being cited to Your Honor today. A complete twisting of the cases. And the Defendant has done that, he said he's done it, and so one of two things must be true. Either he did it, like he says in his Petition that he did it, like he had at least three years to do, in which case his present claim today that he hasn't had a chance to do it yet is false. Or he didn't do it, he didn't investigate and prepare like he was supposed to and like he had years to do. In which case his Page 52. claim today that he hasn't done it may be true, but the claims in the Petition filed on June 5th are false. Those can't both be true. And this is not a civil case. This is not the beginning of a civil case, as Mr. Weinglass attempts to analogize. A civil case drags on in court for years. A case in a civil matter, a car accident, products liability may come to trial 10 years after the filing of a complaint. It's absurd to suggest that that's how we should proceed here. It's absurd enough that we are still arguing about this case 13 years later, even in a criminal case. But to say that we should treat this proceeding like a civil trial where the hearing can occur 10 years later is truly absurd. We've already had the trial here. We had it 13 years ago. At that point it became the Defendant's burden to try to overturn that trial if he wanted to. He messed around in the Courts for years: He went to the Pennsylvania Supreme Court directly, he filed a petition for rehearing in the Pennsylvania Supreme Court, a filing which is virtually never granted. It got him some delay. No relief, of course. He went Page 53. to the United States Supreme Court. He filed a petition for rehearing there again, a filing that is never granted, virtually never granted by the Court, but he filed it anyway, got some delay. Got his result denying the rehearing. Waited six months, which you are not allowed to do, and filed for rehearing again. Virtually unprecedented to ask for a hearing again; and of course the Court summarily dismissed that petition as well. That brought him to 1992. Even with all of that going back and forth in the Courts it brought him only to 1992. And here we are in 1995. He has been working on all of this since that time and he says now gee, I've got to discover things. Well, he did discover things, and that's what the cases, even his own cases, put the burden on him to do, is to discover things. And he says he did, and now it is time for us to hear them. Not just for the press to hear them, but for us in Court on the witness stand to hear them. MR. WEINGLASS: Your Honor, Rule 1508, which Counsel cited but only in part, there is another part that Counsel didn't cite. And that Page 54. part addresses the very issue that's before the Court this morning. And that issue is this: When should a hearing be scheduled. When. Should it be within one day after we get the answer, two days after the Court tells us we are going to trial. Or should we be given a reasonable opportunity to prepare, Your Honor, for the hearing. Counsel knows -- THE COURT: Not hearing, hearings. I am assuming you are not going to do it in one day, or a half a day. MR. WEINGLASS: Right, hearings. THE COURT: Hearings. MR. WEINGLASS: Does Rule 1508 address what is immediately before the Court? And it does. But Counsel didn't read it. Let me read it. The Judge shall schedule the hearing for a time that will afford the parties a reasonable opportunity for investigation and preparation and shall enter such interim orders as may be necessary in the interest of justice. The judge on motion or request shall postpone or continue a hearing to provide either party a reasonable opportunity if one did not exist Page 55. previously for investigation and preparation regarding any new issue of fact raised in an amended motion or amended answer. Now, the words that stick out are the words reasonable opportunity in the interest of justice. Have we had an opportunity to investigate claims. The answer is we have and have produced our Petition of June 5th. Have we had a reasonable opportunity to prepare for a hearing. And the answer is no, because we got the answer yesterday afternoon. Preparing a case for the presentation of claims is one thing. Preparing a case for a hearing, as any lawyer knows, and as Your Honor knows, is a totally different exercise. And we have started that. But we are just at the beginning and we are in no way prepared for a hearing. And so that's the distinction. Now, they try to string those things together. THE COURT: Suppose the Commonwealth had decided not to file an answer, just denied it? MR. WEINGLASS: We would still need the time to get our witnesses. Page 56. THE COURT: You have been doing this for three years. MR. WEINGLASS: Your Honor, three years is of no moment. As I just explained -- THE COURT: What do you mean of no moment? MR. WEINGLASS: Let me give Your Honor an example. One of our witnesses is Mr. McGill, the former District Attorney. THE COURT: Yes, okay, and I understand he has a problem. MR. WEINGLASS: We all have problems. THE COURT: All right, fine, we could deal with his problem and I will help you on that. MR. WEINGLASS: And deal with ours as well. THE COURT: That's right. But you can't tell me you don't have anybody, that you just can't start the proceedings. MR. WEINGLASS: Your Honor, when you put it that way, it would be malpractice and I would confess it for me to put on the stand a witness I haven't talked to for purposes of a hearing. I have talked to witnesses for Page 57. purposes of filing a claim (displaying) in a petition. That's very different than preparing a witness for a hearing. Why? Your Honor, when you prepare a witness for a hearing you review with that witness potential areas of cross-examination which you never review when you file an affidavit. You review with the witness the rest of the record. THE COURT: Let me ask you this, Counselor: Do you want to call one witness a day? So that you could prepare him the night before? MR. WEINGLASS: Your Honor, it's -- THE COURT: I will do whatever you want to. If you want to do it that way, fine. MR. WEINGLASS: No, what I have asked for is this: A continuous hearing going non-stop, day-to-day, after we've had an opportunity to meet and talk to our witnesses and to subpoena them. And we can do that but we can't do it today. We can't do it today. THE COURT: Let me hear from the Commonwealth. MR. GRANT: Your Honor, if Counsel Page 58. does not wish to present those people that support his claims today, I would suggest respectfully and request that Your Honor bifurcate the proceedings, allow the Commonwealth to put on witnesses that it has which can rebut the assertions. And I am sure that they will find that some of those witnesses are the witnesses that they claim were going to exonerate the Defendant. They are here today in this building. I would ask for the opportunity to put them on. Because we don't need forever and a day to prepare them: We could ask them what happened, they are going to tell us. MR. EISENBERG: And, Your Honor, I could point out that it is a very common situation in Post-Conviction Relief Act hearings for the proceedings to occur in that fashion. They don't necessarily, like a trial, start on day one and go through without stop on day five or whatever. They are frequently separated in order to accommodate the availability of witnesses. Mr. Weinglass refers to the witness Mr. McGill, the trial prosecutor. Assuming that that witness has relevant testimony to present, Page 59. the witness informed the Court, I understand, that he received the notice last, late yesterday afternoon, that he is on trial before a Federal judge right now, and that, accordingly, he can't come here. This Court's subpoena does not have the power to override the Federal Court which has Mr. McGill before it trying the case. The Court doesn't have that power, but Mr. McGill said I can be available Monday. Now, this Court, to my hearing, never said to the defense you've got to be done by Friday, we can't hear any witnesses next Monday. THE COURT: No, I never said that. MR. EISENBERG: The Court said we are starting now. THE COURT: Just start, that's all. MR. EISENBERG: So the fact that a witness is not available today but Monday -- THE COURT: We take him on Monday. MR. EISENBERG: Is not remotely an impediment to beginning these proceedings. Now, Mr. Weinglass says that the rule provides for a reasonable opportunity for investigation. Now we stopped hearing about the local rules because the local rules make it Page 60. clear what we mean by that. In the normal case the petitioner often files the petition first without affidavits. He makes his claims out. He may not have investigated them all to the point where he can file affidavits. The rules allow him to do that. At some later point, then, if he hasn't already done it he has to file those affidavits. And at that point is when the rules say the hearing can occur 30 days thereafter, in order to give the Commonwealth an opportunity to look at your actual evidence, your affidavits. It's that period before the filing of the affidavits when the case has to be investigated and prepared, not after. How can you file affidavits, how can you present sworn material before the Court about detailed pieces of evidence if you haven't investigated and prepared already? You can't do it. And that's why the local rules make it clear that after the affidavits are filed you don't have a year or 10 years or even 60 days. You have 30 days to give the Commonwealth an opportunity which, if the Commonwealth didn't need it, the Court could take less time. As it Page 61. happens, it's been more than 30 days and so we've had the opportunity. Now Mr. Weinglass says well gee, I have been able to investigate my claims but not prepare for the hearing. All that shows is the defense's arrogance in relation to the execution date which has been set by the Governor. We know, they say, that the Governor signed an execution warrant saying that the date is August 17th. We want a hearing before that execution is carried out, but we don't care what date the Governor sets for it, you will have to reschedule that execution to a date that is convenient for us so that we could have our hearing. The bottom line is they asked for a hearing before the execution, the Court is trying to give them that hearing, and they say oh, no, it's not actually the hearing that we want now, it's just rescheduling the execution date. And their entire argument about delaying the hearing is not really an argument about the hearing at all. It's just further argument about a stay of execution. The whole Page 62. purpose for the stay of execution is not supposed to be to delay the execution in and of itself. It's not for delay itself, it's not supposed to be for delay. It's supposed to be about airing the claims before the execution. And when Your Honor tries to do that they say gee, we don't have enough time. Even when Your Honor says fine, put on a witness and prepare the night before, put on the next witness the next day, Mr. Weinglass says oh, no, I can't even do that. Well, Your Honor, even in a trial lawyers have to work, they have to work hard, they have to prepare. They don't get to do everything six months or a year in advance, file it all away and then pull it up at some leisurely pace during the trial. That is not how a trial runs, let alone a hearing being held under the shadow of an execution date which the Defendant waited to be set before he filed his Petition. You have to work in that situation. You don't get to just say gee, I don't think I have enough time. I specifically waited to come to you and begin the process until after the Governor set the execution date, and now lo and Page 63. behold here is the execution date. Well, of course here is the execution date. Because they waited for it. And even if there weren't an execution date, a Court would properly say to the lawyers now is the time to go ahead. You don't get to go, in a trial, even in a civil trial you don't get to go before a judge and say judge, I am just not ready yet. The judge gets to set a date and have the hearing proceed and the lawyers have to work to get it done. And when that date comes, whether it is three years later, as it has been since Mr. Weinglass got involved here, six weeks later, as it has been since he filed his PCRA petition, or 10 years later, at a certain point it is going to be time to do the work. And if it were 10 years later no lawyer is going to do the work 10 years in advance anyway. Of course there will be last-minute things to be done. And to trivialize this, the execution date by saying that the fact that they have to do last-minute work means we can't proceed and have to put off the execution is to misunderstand that this is a Court of law. And I think that we should Page 64. proceed. MR. WEINGLASS: Your Honor, just so that one thing is clear, because we have already informed the Court but evidently it hasn't made much of an impression: The Pittsburgh, the Harrisburg Patriot reported on June 1st in their morning edition that Mr. Jamal's attorneys would be filing a Post-Conviction Relief Petition on June 5th. And that was publicly announced. It was after we announced that we would be filing the Petition, it was after I informed the Corrections Department that I would be coming in to see Mr. Jamal for the purpose of signing a verification that the Governor's Office moved quickly to get a warrant signed before we could come to Court with our Petition. We did not file the Petition after the warrant. The Governor signed a preemptive warrant knowing the Petition was coming in. That's how we got here. And we have subpoenaed -- (Discussion was held off the record MR. WEINGLASS: We have subpoenaed the appropriate people in the Governor's Office to come in here and testify under oath that that is Page 65. precisely what happened. And we intend to show that. But Counsel keeps insisting that we waited until the Governor signed the warrant. The Governor moved preemptively to sign a warrant, knowing we were coming to Court. And I must say, as a matter of practice, no prior governor, knowing that the petitioner was coming into court to have his claims litigated, would move preemptively to sign a warrant. They would wait until the court had an opportunity to examine those claims and if the court denied them, then the governor would sign the warrant. But the process was reversed in the case of Mumia Abu-Jamal. And the Governor moved quickly to get his warrant in as we were literally on our way into Court. And that's why we have the dilemma we have today. THE COURT: We don't have any dilemma. But go ahead. MR. WEINGLASS: We have this dilemma. THE COURT: He doesn't have any dilemma. I said, I know when the execution date is set for. And I tell you don't worry about it. I have taken it under advisement, don't Page 66. worry about it. Let's just start the hearings. Let's get some testimony from somebody. That's all I am asking you to do. Could you tell me when you will be able to do that? Are you able to start today? MR. WEINGLASS: Pardon? THE COURT: Are you able to start today? MR. WEINGLASS: No. THE COURT: Just yes or no. MR. WEINGLASS: We are not able to comply with what the law requires us to do today. And that is a full and fair hearing. THE COURT: Well, you are going to get a full and fair hearing, and I wouldn't be able to do it all in one day, as I told you. You are going to have to take one witness at a time. And I don't know how long it is going to take you to do that. Don't worry about it. Take as much time as you need. But get the witnesses in here so that we could start. Let's stop trying it in the press. Let the press get it from the actual witnesses who come in here and testify. Let's do it that way. MR. WEINGLASS: The press has gotten Page 67. it from the public document that is the Petition. THE COURT: Well, the public document is not your Petition, it's the notes of testimony: What transpired in the past, and what will transpire now. Whatever the witness is going to say when he gets in here. All I want to do is start it. MR. WEINGLASS: Your Honor give me five minutes to confer with Counsel? THE COURT: Sure. Five minutes he wants. THE COURT OFFICER: Court stands in recess until the call of the Crier. (Brief recess.) THE COURT OFFICER: Come to order, please, Court is in session. MR. WEINGLASS: Your Honor, after consultation with Mr. Jamal and my Co-counsel, and the investigator who just came into town, we feel that we could be prepared to proceed with the hearing two weeks from today. That's August 1st. And we would be prepared to put our witnesses on, to proceed in an orderly fashion with the hearing at that time. We also welcomed Page 68. the offer by the District Attorney's Office to assist us in locating those witnesses who we have been unable to serve, particularly Officer Wakshul and Mr. Harkins, who was another witness. But we would prefer Counsel on the other side, working together we could be prepared to go on August lst, two weeks from today. MR. GRANT: Can we proceed? The burden here is the preponderance of evidence, Your Honor, which means more likely than not their claims have merit and should prevail. And I think the Commonwealth has a right to present evidence that they should not prevail. Since they need help in finding Mr. Harkins I would like to call him right now to the witness stand. We would like this bifurcated to put on the witnesses we have here who have been waiting since this morning. And for the Court to allow us the opportunity to do that. MR. WEINGLASS: Well, see, Your Honor, when a reasonable offer is being made, immediately the District Attorney's Office moves to take advantage of the offer. And we are not Page 69. prepared with Mr. Harkins or with any other witness for a hearing. MR. GRANT: We are, Your Honor. MR. WEINGLASS: We will be in two weeks. This is the way things were done, unfortunately, in the earlier proceedings where things went quickly and willy-nilly. THE COURT: Yes, but that was for his benefit. Speedy trial is not for the benefit of the Commonwealth. The Commonwealth is ordered to try him within 180 days or he goes free. It's for the defendant's benefit. It is not to the defendant's detriment, it is for his benefit. MR. WEINGLASS: I wasn't referring to that. THE COURT: Well, that's what you said. MR. WEINGLASS: I was referring to the fact that in the midst of trial Mr. Jamal asked for a brief continuance so that Officer Wakshul who was sent on vacation, despite the fact he wasn't supposed to be -- THE COURT: Let's see if it would have made any difference. Bring him in, let him Page 70. testify. MR. WEINGLASS: Officer Wakshul? THE COURT: Yes, bring him in. MR. WEINGLASS: We will bring him in in two weeks time. THE COURT: Why can't you bring him in now? MR. WEINGLASS: We tried to subpoena him last night. THE COURT: Don't worry about it. Commonwealth, will you make him available? MR. GRANT: We are going to look for him tonight, Judge. And he will be available, we will find him and bring him in. MR. WEINGLASS: Your Honor, Officer Wakshul, who is a Court attendant in this building, did not come to work yesterday, called in sick. We sent our investigator to his home. He was not at home either. We don't know where he is, but this was precisely, ironically, the dilemma in the trial: Wakshul was never found. MR. GRANT: We will find him, we will find him. MR. WEINGLASS: We need time. Page 71. THE COURT: The Commonwealth says they will find him for you. MR. WEINGLASS: But this is no way -- and maybe they will, and we will be ready to go with him in two weeks. THE COURT: You could be ready with him in two weeks, but how about somebody else? You mean you don't have any witnesses that you could put on? Even if you took one witness a day? MR. WEINGLASS: Your Honor, that -- THE COURT: One witness a day? MR. WEINGLASS: That is not the question. THE COURT: That is my question to you. MR. WEINGLASS: Could we produce a full and fair hearing? The answer is no. THE COURT: Yes, you can. You take all the time you need. But at least you could bring in one. MR. WEINGLASS: No, Your Honor, it is being gradually led into a position where Mr. Jamal's rights are compromised. THE COURT: Nothing is being Page 72. compromised. All I am asking you to do is let's bring a witness in here. Besides you people talking and lecturing and trying this case in the news media, let's try it in the Courtroom. If you have to have one witness a day, you have to skip a day because you couldn't find them, fine. Let's do something. MR. WEINGLASS: With all due respect to the Court's offer, which I appreciate, it is not the way to grant a full and fair hearing to a petitioner, Judge, who faces the death penalty. THE COURT: Counselor, all the people that face the death penalty are confronted with the very same issue. You know, I am under orders in the Fahy case to try that and to have it completed within 60 days. And because they did not file their petition like you did, the Supreme Court is giving them 30 days to do that. But that's because they didn't file their petition. But once they file their petition, I have only 30 days to get rid of that case. So don't tell me. This is a death penalty case too. It is the same thing. MR. WEINGLASS: Right now we are not Page 73. asking for 30 days, I am asking for two weeks. THE COURT: But you already had -- MR. WEINGLASS: I am asking for two weeks. THE COURT: You already had your 30 days. MR. WEINGLASS: No, Your Honor. THE COURT: They filed, they gave Fahy 30 days to file his petition because no petition was filed. MR. WEINGLASS: But, Your Honor, we've had one day. We got the answer yesterday. THE COURT: Don't worry about their answer. MR. WEINGLASS: Well, the answer is, as they say, identifies disputed issues of fact. THE COURT: All I am saying to you: Why can't you present at least one witness? Do you want to bring one witness tomorrow? Fine. Get him, talk to him overnight, prepare him, bring him in tomorrow. I am not saying that you, have to have 10 witnesses a day, 20 witnesses a day, five witnesses a day. I will give you even one witness a day. As long as we could get this thing moving, that's all. Page 74. MR. WEINGLASS: You see, Your Honor, but that, with all due respect, is a prescription for disaster. It is -- THE COURT: No, it is not a prescription for disaster. It is a prescription for getting something done that the Court is obligated to do. MR. WEINGLASS: The Court, as I understand it, is obligated to give us a reasonable opportunity. THE COURT: Well, you've had that reasonable opportunity. You've had three years at the very minimum to prepare for this thing. MR. WEINGLASS: Not to prepare for the hearing. I've had three years to investigate the claims. THE COURT: Well, you investigated. What other investigation do you have to do? MR. WEINGLASS: Anyone who files a lawsuit of any nature investigates, files a lawsuit, and then there is a hearing, not within 24 hours or not within two days, but after a reasonable opportunity is afforded. THE COURT: Counselor, when this case was initially tried the Commonwealth was under Page 75. the same burden. They didn't have any leeway. MR. WEINGLASS: They had six months. THE COURT: Six months. That's because they had to get ready for the trial, and if they didn't they would be out of luck. But that is for the trial. We are now in an PCRA hearing. It is altogether different than preparing for a trial. And the burden was on them, the Commonwealth. They are forced. I didn't force them, I didn't tell them how many witnesses they have to give in one day. They gave me whatever they had. And if the defense needed time for his witnesses, he had that too. MR. WEINGLASS: No, Your Honor, the defense was denied a continuance for Wakshul. You know that, that is part of the record. THE COURT: I know that, but that was unreasonable. And there was no necessity for that. But if it is that material, bring him in. Bring him in. And if you can't find him, they will try to find him for you. MR. WEINGLASS: But I want the time, reasonable opportunity to prepare for a full and fair hearing. THE COURT: Counselor. Counselor, if Page 76. I gave you to August the 1st you are still going to be having trouble. Even if I gave you to August the lst, you are still going to tell me you have a problem locating somebody. All I am saying to you is if you have a problem, name the witness that you have a problem with. If the D.A. can't, if I can't find him, the D.A. will look for him. If he is able to find him, turn over him over to you and you will proceed. I am not saying that you have to try to bring all of these 19 witnesses or however many you have, I am not saying that you have to do that just in one day. I am giving you leeway. All I want to do is to at least start the proceeding. Let's find out where we are going. We won't know where we are going until we start. I don't know that you have a problem but let's start it and see if we have a problem, if we have to continue it. MR. WEINGLASS: We were told that we had to begin this hearing on Friday. THE COURT: No, I said to begin to listen to at least some witness. I didn't tell you which one. Whichever one you have that's handy. Page 77. MR. WEINGLASS: Friday night I got the 38 pages. THE COURT: Don't worry about his, I am not talking about his answer to anything. MR. WEINGLASS: I didn't get that until yesterday. THE COURT: I am not talking, about that. Because they didn't have to file an answer. I forced them. They had a right to complain and say Judge, you are not giving us enough time to answer this thing. If they had said that I would have given them a little bit more leeway. But I am trying to move this case along. And I said to them file it by Monday. They filed it by Monday. MR. WEINGLASS: They had six weeks to file an answer. THE COURT: Well, they had other motions that you filed, and they had to answer them. MR. WEINGLASS: They had six weeks. THE COURT: But they can't concentrate on all of them at one time. MR. WEINGLASS: They have ample manpower, I'm sure. Page 78. THE COURT: You had three years. MR. WEINGLASS: No, Your Honor, I had to investigate. THE COURT: Look at all the lawyers you have here. I don't know how many you have here today but you have a gang of lawyers, you have investigators, and I don't know what else you have. MR. WEINGLASS: They came in on Sunday. I came to Philadelphia on Sunday. THE COURT: Well, Counselor, I am going to ask you one more time: Can you start tomorrow? One witness? Any witness? MR. WEINGLASS: Your Honor, I, the Court puts me in this position. THE COURT: I don't put you in any position. MR. WEINGLASS: You are asking me to compromise Mr. Jamal's rights. THE COURT: I am not asking you to compromise anybody's rights. All I am saying to you is give me even one witness. And if you can't start him tomorrow, you could start him the next day. Give me one witness. I am not saying that you have to bring them all in. If Page 79. all you could do is get one witness a day, fine. That's all right. I will give you that time. All I am asking you is that you start to move. I told you before: Justice delayed is justice denied. So if you want to confer with your -- MR. WEINGLASS: If I could have just a moment. THE COURT OFFICER: Court will take a short recess until the call of the Crier. (Brief recess.) THE COURT OFFICER: This Court will now come to order. Court is again in session. MR. WEINGLASS: Yes, with all due respect to the Court's invitation, after consultation with Counsel and Mr. Jamal, I have to respectfully represent to this Court that it is the Petitioner's position that we simply cannot do a hearing on two days notice in a piecemeal fashion as the Court suggests and without discovery. It is a denial of a full and fair hearing. THE COURT: I said to you discovery Page 80. was denied. And I said to you if you could come up with any case, any statute to permit you, I would reconsider at any time. But so far you haven't. Well, I think the only thing to do is to entertain the Commonwealth's motion for, bifurcation. Let the Commonwealth proceed. They seem to be ready to proceed. MR. WEINGLASS: We also object to doing a hearing in reverse order because a hearing in reverse order we are not prepared for and we haven't had two days notice, we haven't had one days notice, we had 15 minutes notice. THE COURT: You haven't given me any assurance that you will ever be ready. MR. WEINGLASS: Your Honor, I am assuring you -- THE COURT: No. MR. WEINGLASS: Well, then, let me say it, because if I haven't it's my error. We will be prepared to put on an orderly hearing with witnesses, evidence and exhibits, commencing on August lst, two weeks from today. And we will do it within the full confines of what our obligations are under the relevant rules to put Page 81. on a hearing. MR. GRANT: We are ready to proceed, Your Honor. THE COURT: Yes, go ahead. Go ahead. MR. GRANT: We call as our first witness Miss Deborah -- THE COURT: No, wait awhile. If you are going to do that, it is twelve o'clock, people have to have their lunch. MR. GRANT: That is true, except this lady has a child in day care. If we could accommodate her and put her on we would appreciate it. MR. WEINGLASS: Your Honor, we object to this proceeding. We ask the Court to enter an order denying our continuance, denying our discovery and give us -- THE COURT: I already denied your discovery, I don't have to do it again. MR. WEINGLASS: And give us another day to go to the Pennsylvania Supreme Court which invited us to return. THE COURT: If they invited you I can't stop them from hearing it. I am not certifying anything to the Supreme Court. Every Page 82. time I make a ruling I am not going to certify it to the Supreme Court so that you could run up there and have them decide everything that I am doing as I do it. That's not the way to do it. But if they want to entertain it, I can't control the Supreme Court. If they want to hear it, I can't stop that. MR. WEINGLASS: I am only asking the Court for a reasonable opportunity for us to go to the Supreme Court today because they invited us to come back. And we would like to come back now that we've had the Court's decision refusing a continuance. And we will do it today. I ask for an adjournment. THE COURT: Could we adjourn until tomorrow morning? MR. GRANT: Your Honor, with all due respect to Counsel, every time he stands up he is saying let's not do it. And I am saying we have witnesses here that will verify or dispute their claims. I would ask, Your Honor, they can file, they could go to the Supreme Court, there is nothing stopping them from walking down the hall and up the stairs. I am only asking that proceedings not be stayed, that we be allowed to Page 83. present the witnesses that we have here today. We will bring more for them, for ourselves, tomorrow and the next day. Until the Supreme Court rules. In the meantime why should everybody sit around twiddling their thumbs waiting for the Supreme court to decide? We don't know if they will. They went to the Supreme Court yesterday and no decision was forthcoming because they were not prepared to do what they wanted to do. I am asking to proceed today, proceed with the witnesses we have. We subpoenaed Mr. George Fassnacht, who claimed that the firearms examiner did a poor job. We have Mr. Harkins, whose house they visited yesterday on two occasions, that they seek to have here in Court, we have him here in Court in the next room. Deborah Kordansky, this missing witness who will show that some other person killed Officer Faulkner, despite the fact that the Defendant was found seated within 4 feet of the Officer with a bullet in his chest, right there at the scene. We brought her in anyway just to make sure that they understand we are Page 84. not trying to hide anything from anyone. We are going out looking for them because we know when they get on the stand the truth is going to be told here, and it is not going to be inuring to their benefit. I would like to proceed. THE COURT: What is that first witness? MR. GRANT: Deborah Kordansky. THE COURT: Is that the witness? MR. GRANT: This was a witness who according to the one paragraph statement she gave to Homicide nineteen years ago said I heard some gunshots, about five, I thought they were firecrackers, and then I heard some sirens, then I looked out my window and I saw the police vans, about two of them, 10 police cars over on the south side of my street, and I saw some person running on the south side of Broad Street. Which would mean either you would be running into the arms of the police or running past the police. And they are suggesting that that is the phantom shooter; and I am suggesting that is nonsense. And we have the witness here, they could examine the witness and they could verify their claim. Page 85. MR. WEINGLASS: Your Honor will recall at the trial, because it is in the record, that Mr. Jackson did telephone and talk to Miss Kordansky once from Your Honor's chambers in the middle of the trial, and she indicated to Mr. Jackson, as he reported on the record, that she doesn't like black people and she didn't want to help his client. THE COURT: Well, then ask her that when she gets on the stand. MR. WEINGLASS: Yes, but that is in the record. THE COURT: Ask her when she gets on the stand. MR. WEINGLASS: That is the kind of witness they are calling. THE COURT: If you are not ready to go I will bifurcate the case and let the Commonwealth present their witnesses. At least we will move forward. MR. GRANT: Thank you, Your Honor. MR. WEINGLASS: We were in the Supreme Court yesterday at 5:00 p.m. THE COURT: You will go back there again, okay. Page 86. MR. WEINGLASS: I am only asking Your Honor for a day for us to go back to the Supreme Court. THE COURT: Counselor, we already have witnesses here ready to take this stand and testify. I will listen to those witnesses. MR. WEINGLASS: I had less than one hour notice that these witnesses are coming. I don't even have my witness file for Miss Kordansky, to give you an example. We have been looking for her, we haven't found her. MR. GRANT: You could use my file. THE COURT: He has one here for you. MR. WEINGLASS: I have my own file. THE COURT: You will have a chance to cross-examine her. MR. WEINGLASS: Without a file. THE COURT: You don't need a file to cross-examine. MR. GRANT: I have a file, Judge, right here. MR. WEINGLASS: This is not how cases are tried. I don't defend a petition with the prosecutor's file. This is outrageous. THE COURT: I understand when somebody Page 87. is trying to snowball me. MR. WEINGLASS: I can't believe this suggestion by the Court, that I should use their files in defending Mr. Jamal. And that I don't need a file to even -- THE COURT: He has everything. MR. WEINGLASS: No, he doesn't. THE COURT: Oh, yes he does. He has that. MR. WEINGLASS: He was given everything and it was burned in the house when the MOVE house was bombed. That's why we didn't have the documents they gave us last week. THE COURT: What was it doing in the MOVE house? MR. WEINGLASS: He gave it to them for storage, he was in prison. THE COURT: They store it in prison. MR. WEINGLASS: Only some of it. And the rest of it had to be moved out. And it was stored there and it's been destroyed. That's why we didn't have these witness statements which they gave us Friday night at ten o'clock, because Mr. Jamal's statements were destroyed in the fire. That's the way we are working here, Page 88. Your Honor. THE COURT: That is the way you are working and I am trying to get some orderly proceedings here. MR. WEINGLASS: That's what I am looking for. THE COURT: Right, and I can't wait until August the 1st. If I do that in this case, I'll have to do it in every capital case. And I don't have that leeway with Fahy. He was on death row too. And the Supreme Court has given me a definite time. And I have to follow their orders. It's got to be done in that time. Supreme Court has not given you any time in this case. MR. WEINGLASS: Yes, they have. THE COURT: Not in this case. MR. WEINGLASS: Not in this case. THE COURT: Well, okay, if you want to run to the Supreme Court and ask for them to give you a schedule, fine. If they want to schedule it and tell me Sabo, I want you to do it this way, okay. MR. WEINGLASS: Well, I will. THE COURT: I will do it. Page 89. MR. WEINGLASS: I will tell the Court what the Supreme Court said about this case. Yesterday at five o'clock they said to Mr. Piper reapply for a continuance and if Judge Sabo denies it come back. THE COURT: Okay. MR. WEINGLASS: That is an invitation. THE COURT: It is an invitation, you want to go back, go back. MR. WEINGLASS: And we can not go back while we are litigating in this Court. I respectfully ask the Court to respect the jurisdiction of the Supreme Court. THE COURT: Oh, I always respect the jurisdiction. I understand that. I am not a Justice, I am only a poor old Common Pleas Judge in the battlefield here. MR. WEINGLASS: Then give us the opportunity to file papers with the Supreme Court. THE COURT: If the Supreme Court wants to hear you I can't stop that. MR. WEINGLASS: I know. THE COURT: But I am not certifying anything to them. Get that straight. Page 90. MR. WEINGLASS: I hear that, I got it straight from the Court. But all I ask for is time and not -- THE COURT: Okay I will continue this until tomorrow morning. Okay, gentlemen, I'm sorry, but I will do that. MR. GRANT: I would respectfully object, of course, Your Honor, but I understand Your Honor's ruling. THE COURT: But tomorrow morning, unless the Supreme Court stops me, we are going forward. If you are not going to present any witnesses I will allow the Commonwealth to bifurcate and they could put on their witnesses. All right. MR. GRANT: Your Honor, there is one other matter. THE COURT: What's that? THE COURT OFFICER: Quiet, please. Excuse me. MR. GRANT: I do have the lawfully-issued subpoena for Mr. Hightower to be here today. And I would like to at least bring him before the Court to explain his failure to appear, because he is a key witness and an Page 91. affiant supporting their Petition which they claim allows for a Constitutional claim. Now he is subpoenaed, he is subpoenaed last week to be here today. THE COURT: All right, I will tell you what you do: Get in touch with him, tell him be here tomorrow. If he is not then I will issue one. MR. GRANT: Very well, Your Honor. THE COURT OFFICER: Court is adjourned until 9:30 a.m. tomorrow. - - - - - (The hearing was adjourned at this time.) - - - - - 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 case is hereby approved and directed to be filed. Judge |