Verfahren gegen Mumia Abu-Jamal

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

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PCRA Hearing

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Wednesday, July 19, 1995
Courtroom 253, 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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ALSO PRESENT:

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(At l0:25 a.m. the hearing was convened in the
presence of the Court and the attorneys.)

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THE COURT: I hate to have to keep reminding everyone that we are in a Court of law: Proper decorum will be maintained at all times. If you can't live up to that, then please leave.

Counselor, we are here today to set up the agenda.

MR. WEINGLASS: Because there are several matters. The question of the availability in the evidence room, I understand that it's here in this building, for the Petitioner's attorneys to examine the evidence which is maintained in the evidence room pertaining to this case. And Miss Wolkenstein will address that.

I understand there is a question about subpoenas to the Police Department in Philadelphia. And Miss Wolkenstein will address that as well.

There is an issue pertaining to one

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subpoena which is outstanding, which is a subpoena to Dessie Hightower. And he was subpoenaed to appear yesterday and he called Mr. Grant, as I understand it, yesterday and indicated that he would appear whenever he is wanted. He called my office and assured me of the same. And he gave me Detective Cobert's number, who served the subpoena, and asked me if I would call Detective Cobert and tell him the same. And I called the Detective Cobert but he was out yesterday evening. And I tried to convey that message to him as well.

This morning before Court began I conveyed to Mr. Grant that Mr. Hightower had called me after he had spoken to him and he wanted to assure both of us that whoever wants him in Court, he will appear at the designated time. He is in a very precarious position, Your Honor. And his employment literally is on the line if he has to come down today.

THE COURT: Well, we are not starting today so forget it. We are not starting today.

MR. WEINGLASS: Yes, I know, and I assure the Court that I had that conversation with him and with Mr. Grant and tried to call

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Detective Cobert. But I think this man will appear and I don't see any need to cost him his job today.

MR. GRANT: I would like to respond. Yesterday Counselor stated to the Court and to everybody in this room that pursuant to the Court's order and the subpoena for Mr. Hightower' s appearance, that we are attempting to intimidate the witness, to drag him out in the middle of the night, and then to lock him up when he didn't show up, when all the time he knew very well where this man was. He was subpoenaed, he contacted Mr. Weinglass, and he told Detective Cobert yesterday that Mr. Weinglass told him not to come into this Courtroom.

MR. WEINGLASS: That's false, absolutely false.

MR. GRANT: I have the witness here.

MR. WEINGLASS: Let's put him on. Let's put him on.

THE COURT: Do you want to take the stand too?

MR. WEINGLASS: Sure, sure.

THE COURT: Okay, continue.

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MR. GRANT: Thereafter, Mr. Hightower called me and I advised him that the Court is holding in abeyance a bench warrant for his arrest unless he appears here this morning. There was no agreement, because that was not my place to make the Court's agreement, that he show up whenever he's needed. He thereafter called Mr. Weinglass and now he is not here again today. And I presume, although Mr. Weinglass represents that the understanding was that whenever he is needed he will show up, there is no such understanding because I don't understand it and he has no such right. And I ask that Mr. Hightower be brought in to determine whether Counsel misrepresented to the Court by not stating that he knew where this man was the entire time.

MR. WEINGLASS: If I may, Your Honor, just respond to that briefly. In a great show of vigor, yesterday Mr. Grant accused me of misrepresenting -- it is a daily occurrence -- to the Court about Mr. Hightower being subpoenaed while he was asleep and brought down here. Mr. Grant then stood right over there and said I want to inform the Court that he was

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subpoenaed in the daytime. Well, now we know the truth. And the truth is -- and I am going to ask for an apology from the Court -- he was subpoenaed while he was sleeping on Friday night, not in the daytime. He was sleeping at eight o'clock at night, he was ill. And he was awakened by the detective, Detective Cobert, who subpoenaed him at eight o'clock Friday night. I ask for an apology from Counsel, and I ask the Court to admonish Counsel who misrepresented. It was his detective who subpoenaed him, he gave the Court the wrong time.

MR. GRANT: In Philadelphia --

MR. WEINGLASS: It led to my ad --

MR. GRANT: In Philadelphia at 8:00 p.m. it is the daytime. Because he retired early it is still daytime.

MR. WEINGLASS: He told me he was sleeping, he was awakened. And I represented that to the Court and I was castigated for that.

THE COURT: He may have been sleeping at eight o'clock.

MR. WEINGLASS: He was ill.

THE COURT: He may have been ill, he may not, I don't know, I am not a doctor, and I

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am not here to decide that issue. As I said before, it's moot now because we are not going to start until as Justice Montemuro says Wednesday, I think, July 26th.

MR. WEINGLASS: That's right. And I quite agree with the Court, I think the issue is moot. I think Mr. Hightower will be here, and I ask --

THE COURT: Okay.

MR. WEINGLASS: I ask the Court to just abide by that and allow him to come at that time.

THE COURT: Counselor, let him come when you want him to be here to testify, okay.

MR. WEINGLASS: Thank you.

THE COURT: But when you talk about misrepresentations, I think you misrepresented something to me also.

MR. WEINGLASS: Well, I am aware of this problem.

THE COURT: You are aware of this problem?

MR. WEINGLASS: I was told by my Co-counsel of what the Court's reaction was yesterday.

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THE COURT: As to what?

MR. WEINGLASS: About Mr. Wiser as a spiritual advisor.

THE COURT: Because they FAX'd me a letter that says at no time did I or any of my staff authorize or recognize Steven Wiser as a spiritual advisor. It is a letter here (displaying) that's FAX'd to me by --

MR. GRANT: Your Honor, could you speak into the microphone?

THE COURT: Oh, I'm sorry. It's not on.

It's signed by James S. Price, the superintendent, State Correctional Institution at Greene, which is in Waynesboro, Pennsylvania. And I will have this letter made a part of the Court's records. Not that it is material, but the reason I am bringing it up, Counselor, if you are going to quote me something be candid and exact.

MR. WEINGLASS: Did I quote? I didn't quote.

THE COURT: Well, you said to me that Mr. Wiser was recognized as a spiritual advisor by the institution at Greene, Greene institution

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in Waynesboro, Pennsylvania. And I said well, if he is recognized by them, I don't see why I have to even sign an order because the prison at Graterford can call them and find out. But you insisted on an order, and based on your statement that you gave me, I signed that order. I didn't question you. But I got a different story. I didn't ask for this; he FAX'd it to me. And he also FAX'd to me a letter, evidently, that he got from a Malvin L. Wulf threatening to go to Court if he didn't allow Wiser to be his spiritual advisor.

Now, I don't like to get involved with institutions. They have their rules, and I have my rules. But you talked me into that one. And I signed it, and I am not going to revoke it, but I am not going to necessarily break my back about it.

MR. WEINGLASS: Well, I am pleased the Court approaches that in the manner that it is. Because I'm glad the Court represented on the record that I said that he had been approved by the institution, because we'll have the transcript and I can assure the Court now that the Court's representation is in error.

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THE COURT: Okay, I have the FAX.

MR. WEINGLASS: I never represented that. What the Court said I said I never said. And we will have the transcript.

THE COURT: Okay I but do you want a copy of this?

MS. WOLKENSTEIN: Yes, please.

MR. WEINGLASS: Yes, if we could.

THE COURT: All right, we will make copies for everybody, for the D.A. and defense (handing).

MR. WEINGLASS: And when we have the transcript I will correct the record, because the Court is misrepresenting what I said.

THE COURT: Okay, that's my understanding. And let me say this: That was the reason I signed the order. Believe me. I don't care how you phrased it, but that's the impression it left with me and that was the reason I signed it. If I knew that there was any kind of a dispute with the institution, I would let you go to Court and resolve it. I am not going to get involved in these things. But be that as it may, you will get a copy of what they sent me.

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What was your next thing that you were --

MS. WOLKENSTEIN: There are a couple of technical matters, Your Honor. The first was the question of legal visits with Mr. Jamal at Graterford Prison.

THE COURT: Oh, yes. Yes. I will settle that for you right away. They said that you could visit him in the evening or on the weekends if you call them in advance and let them know so that they can prepare for you. To me that's perfectly all right. Call them in advance and they will make the arrangements for you.

MS. WOLKENSTEIN: I am perfectly prepared to call them in advance, Judge. The question --

THE COURT: Okay, then we have no problem.

MR. WEINGLASS: I did speak to Superintendent Vaughn yesterday afternoon and he did indicate a limitation in terms of weekend visits that I need to address the Court about. He said that we would only be able to visit on Saturday, absolutely not on Sunday, and only

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until the hours of 2:30. Now, consideririg our schedule and that we are going to be coming back and forth to Philadelphia in preparation for this hearing, we actually are going to need to be able to come in to see Mr. Jamal on Sunday in order to do preparation.

THE COURT: Well, you must have a good reason for that, Counselor.

MS. WOLKENSTEIN: It has to do with our trial, our travel schedule.

THE COURT: I am talking about the institution. They must have a reason why they can't do it. And unless you could tell me what the reason is, I am not going to get into a fight with the correctional institution.

MS. WOLKENSTEIN: Your inclination, your statement is we should be able to get in there over the weekend.

THE COURT: I said you should get in there, that the impression they gave me was if you called them in advance they would try to make arrangements for you. And I am leaving it at that.

MS. WOLKENSTEIN: I will address this issue Saturday with Superintendent Vaughn and

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get back to your office.

THE COURT: Because I don't know, they may have a good reason for no visits on Sunday. I don't know.

MS. WOLKENSTEIN: If they --

THE COURT: Maybe they are short of staff. There could be a lot of reasons why. And I am not, you have to understand one thing, I am not here to run the prisons. I don't see why you can 't see him every evening during the week and on Saturday. That's six days out of seven. Somebody ought to be able to rest on Sunday.

MS. WOLKENSTEIN: Unfortunately, we don't, so we are going to need to be able to see him on Sunday.

THE COURT: That's what you say, but maybe you should, it would do you good to rest a little bit on Sunday and maybe you would be in a better position to proceed.

MS. WOLKENSTEIN: Your Honor, if we got a further stay of these proceedings and stay of the warrant I can assure you we will be glad to take off both Saturday and Sunday.

THE COURT: Well, do whatever you

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think you have to do. I am doing what I think I have to do. At this moment they told me that if you call them in advance, they will make special arrangements. Now, they are giving you more than they ever give any other inmate on death row.

MS. WOLKENSTEIN: Well, I don't believe that is accurate, Your Honor. In fact, that raises another question.

THE COURT: Well, tell them. Tell them to let other attorneys come in there on Sunday.

MS. WOLKENSTEIN: I believe so. In fact, Mr. Weinglass and I have both visited Mr. Jamal previously on Sunday.

THE COURT: Well, then take it up with them and say look, I visited him on Sunday before.

MS. WOLKENSTEIN: There is another possibility here, Your Honor, which is this. Is that I understand that Mr. Fahy, who was also a stage two capital case --

THE COURT: Not anymore.

MS. WOLKENSTEIN: Not anymore. Okay? I am glad to hear that, but he was a stage two

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defendant and he was housed at the PICC, at the county correctional institute, I don't know...

THE COURT: Where.

MS. WOLKENSTEIN: The Pennsylvania County or Philadelphia County Industrial Correctional, known as PICC, I am told. There is an institute that is the county jail.

THE COURT: Philadelphia prison here?

MS. WOLKENSTEIN: The county jail. Mr. Fahy was there for two weeks and I actually think that would actually be much better accommodations in terms of being able to meet with Mr. Jamal.

THE COURT: I don't tell the State where to keep him. At this moment he is a State prisoner. I don't transfer people around, I don't have that authority.

MS. WOLKENSTEIN: Mr. Fahy apparently was there and appeared before, he was before you as well, as I understand it.

THE COURT: Counselor, he may have but I didn't send him there.

MS. WOLKENSTEIN: I would request an order from the Judge to transfer him to PICC so that we would be able to better meet with him.

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THE COURT: I can't just transfer people around in a State institution. You show me that I have that authority. Why don't you take it up with the Superintendent at Graterford and ask him if he could transfer him over there. I don't transfer prisoners. That's not my job.

What is your next problem?

MS. WOLKENSTEIN: So that's denied, Your Honor?

THE COURT: It is not denied. I am saying, I am telling you how to do it. Talk to the Superintendent over there at Graterford. I don't transfer prisoners. I don't decide where -- as a matter of fact, there was an order we couldn't put him in Philadelphia because they are overcrowded and they didn't want to take him.

MS. WOLKENSTEIN: This is Mr. Fahy.

THE COURT: He is a State prisoner, put him over at the State.

MS. WOLKENSTEIN: This is Mr. Fahy we are talking about now?

THE COURT: We are talking about any prisoner. That was the order.

MS. WOLKENSTEIN: It was about three

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weeks ago that Mr. Fahy was there for two weeks.

THE COURT: Talk to Mr. Fahy. I don't know how he gets there. I didn't put him there, that's all I am telling you. I don't know how he got there.

MS. WOLKENSTEIN: Okay.

THE COURT: He is a State prisoner, he should have been in Graterford. How he got to Philadelphia, I don't know. Because by putting him there then they are forcing somebody else out. They have a cap over there. And I am not going to fight about the cap. That's already been decided by other judges. I am not going to get involved in their cap. The State says, or the City says look, he is a State prisoner, keep him in a State institution. Now, if you could get that resolved somehow, be my guest. But I am not going to get involved. They have a cap over there, they are only allowed so many prisoners there.

MS. WOLKENSTEIN: I just raised that as a possibility because it causes a problem with us being able to visit.

THE COURT: Counselor, I am telling you to research it and see if you could get

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something done. It is not within my province to say where people should go. At one time it is true we used to keep our State prisoners in Philadelphia when they were on trial. But that has been discontinued because they have a cap from the Federal Courts on how many prisoners they could keep in the City detention center. And I am not going to fight with the Federal government or anybody else about the issue. And we have been told to keep State prisoners in the State institution. Now, if you could get the Superintendent at Graterford to talk to the Superintendent in Philadelphia and they want to transfer him, hey, no problem with me. I am not stopping you. But you do the leg work, I am not here to do that leg work.

What is your next problem?

MS. WOLKENSTEIN: Okay, the next issue is this. There are trial Exhibits that are, as I understand it, with both the Court files and also in the evidence room in the Courthouse. We tried yesterday to be able to get access to them to take a look at them, see what's there. We want to view those in preparation for a hearing. We were informed that it was not possible to do

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that without either the District Attorney accompanying us to do that, or we needed an order from the Court.

THE COURT: Okay? what is the situation on that, Counselor? Do you know?

MR. GRANT: I don't know what Court files. We have to have some specificity. She may just want paper documents, that's all the Prothonotary would have.

THE COURT: No, no, she is talking about the evidence room I think up on the 7th floor.

MR. GRANT: We could make an arrangement at her convenience. We will have the evidence custodian available, they could inspect the evidence.

THE COURT: There, just talk to the D.A., you could get a lot.

MS. WOLKENSTEIN: We were on a conference call with Mr. Eisenberg and we were told we had to raise that today. That's why we are raising it today.

THE COURT: He said if you contact them they will make arrangements. You tell them when you want to go there.

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MS. WOLKENSTEIN: We could be there without someone from the D.A.'s Office.

MR. GRANT: No.

THE COURT: He says you can't without the D.A.'s Office.

MR. GRANT: And we would like some specificity of what you want.

MS. WOLKENSTEIN: First of all, everything that was on the list of Exhibits at the trial that was available to your office. I could make a copy if you don't have an Exhibit's list.

MR. GRANT: For the Court's information and Counsels' edification: What is in the evidence room is physical evidence.

MS. WOLKENSTEIN: We are also interested in looking specifically at the physical evidence: The guns, the bullets, the bullet fragments. The police officer's jacket. In other words, all the physical evidence that's involved in this case.

MR. GRANT: That's all that is going to be there. Exhibits like diagrams, sketches, photographs et cetera are not housed in the evidence room.

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MS. WOLKENSTEIN: Where are those housed?

MR. GRANT: Well, tell me what you need.

MS. WOLKENSTEIN: I want everything that was presented as an Exhibit at the trial.

MR. GRANT: Could we have a copy --

THE COURT: Why don't you give him a copy and why don't you work it out. Why do you have to get the Court involved in something?

MS. WOLKENSTEIN: Because the District Attorney's Office yesterday indicated in a phone conference that we would have to work it out here before Your Honor.

THE COURT: You could work it out. Whenever --

MS. WOLKENSTEIN: Is there a problem with getting access to the Exhibits that were presented at trial, that are part of the official Court record?

MR. GRANT: Give me a copy of your list, Counsel, and we will accommodate. Just give me a copy of your list.

Your Honor, these Exhibits are either part of the Quarter Sessions file or pursuant to

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the letter that was sent to the Governor in 1989, which I am sure the defense has, the file which was sent to the Governor and has been available there for all this time.

MR. WEINGLASS: As Mr. Grant says, I am sure we can work it out.

MR. GRANT: It was not our assumption that these allegations were made without any of these materials having been reviewed already.

MS. WOLKENSTEIN: We were told we could not review them until the PCRA was filed. That's what Mr. Weinglass was told when he attempted to review them previously.

MR. GRANT: PCRA was filed on June 5th, Your Honor, and these Court documents are either part of the Quarter Sessions file or part of the official record that was sent to the Governor's Office. I am sure that these paper documents exist and can be located for review and I am sure we can work it out.

THE COURT: Okay I all right.

MS. WOLKENSTEIN: So we will talk this afternoon. We can work out times and whatever to do this.

Will you do that? Can I call you at

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one o'clock?

MR. GRANT: Yes, you may. I would like to have a copy of that list, please.

MS. WOLKENSTEIN: I have to make a copy. I presumed you had a copy of the trial Exhibits.

THE COURT: We will make a copy for you right now.

MR. GRANT: Thank you, Your Honor.

MS. WOLKENSTEIN: Okay, the next issue is the question of service of subpoenas for various, these are subpoenas duces tecum for various records in the possession and control of the department of police. And they are of several different forms. I am not here to discuss really the content of them or whether they are going to be quashed. There will be a motion or that discussion. There is a technical problem which is as follows. It is our understanding when we tried to serve these subpoenas that in fact they can not be served with the terminology on them for the duration of the proceedings. That we have to serve them with a date certain. And that for that date certain for each subpoena there is a fee of $38.

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That's my understanding. And that if we don't use them, that that witness is not available or the trial schedule is such that we can not use that witness that particular day, they have to be re, they have to be re-subpoenaed and pay another $38. And if we needed them on call for a period of time, that would be $38 times whatever number of days. Again we were told that there was only one way to get around that, or two ways, which was either an order from the Court appointing one of our staff to sort of issue these subpoenas -- I don't quite understand it myself -- or to get the cooperation of the District Attorney's Office so that we could give, say, a date certain with the understanding that that, that those files would be returned to Court on the appropriate day. Again we need the cooperation of the Court and the District Attorney's Office to do this. And that's the relief I'm requesting.

THE COURT: What is your problem? Did you hear what she said?

MR. GRANT: Yes, Your Honor. I don't know what, Counsel is continually wanting us to do work for them and I don't know what it is

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this time but Mr. Domzalski represents the City.

MR. DOMZALSKI: Good morning, Your Honor. Dave Domzalski, Counsel from the City Solicitor's Office for the Police Department.

What Counsel is representing with regard to police procedures for subpoenas: It is true that they do not accept on-call subpoenas, they want a subpoena for a date certain. Obviously, officers have to be called in off the street. Officers may be on audio status. It costs the City money to have these officers here. Basically, a $38 fee is a nominal fee, in that it doesn't really carry the true expenses of the Police Department. That issue basically is a coordination matter, Your Honor, that the Police Department asks all attorneys to do. It even asks the City Solicitor's Office. I have tried cases where I've had the same problems in trying to figure out what my witness list is and with how I could schedule witnesses to fit in. But it is a basic procedure with the Police Department that they only accept subpoenas for that particular day.

Now, in addition, Your Honor, the subpoenas that were served, they were just

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served in an envelope and placed at the security desk of the Police Administration Building. The basic practice for the defense bar of Philadelphia and most do know it is to file subpoenas in Room 142, City Hall, where the appropriate fees and appropriate instructions will be given.

MS. WOLKENSTEIN: We served those subpoenas, Your Honor. That is not an issue here, we will serve wherever is the appropriate place.

THE COURT: 142, he said.

MS. WOLKENSTEIN: Right, I heard that, we will certainly do that. But again, in order for us to do that we need to clarify this question of date certain.

THE COURT: No, you see, what the problem is, he told you: They have to take police off duty somewhere.

MS. WOLKENSTEIN: These are subpoenas duces tecum.

THE COURT: That's all right but the police --

MS. WOLKENSTEIN: These are administrative officers, Your Honor. All of

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them are people who are in control of files. That's what they are. They are not taking officers off the street, that is not the type of subpoenas that they are.

MR. DOMZALSKI: Your Honor, it all depends what documents Counsel is seeking. Yes, it may not be necessary for a police officer to appear, for example, if it is just certain documents. For example, one subpoena is asking for records of the intelligence division of the civil disobedience unit for the period of 1968 through 1981.

MS. WOLKENSTEIN: This pertains to Mr. Jamal.

MR. DOMZALSKI: As it pertains to Mr. Jamal, that is correct. Whether those files still exist, Your Honor, I have no idea. I did receive these subpoenas and I asked the Police Department to look into the matter anticipating that the matter would be clarified at some point in time.

But a couple scenarios developed. There may be no files there, at which time I would just submit an affidavit.

MS. WOLKHNSTEIN: You should take care

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of that at that point. I would really like to resolve the question of how to serve these subpoenas.

THE COURT: Counsel has already alerted them.

MS. WOLKENSTEIN: I appreciate that. What I would like to do: I am perfectly prepared to pay the normal $38 fee for one time service. The question is whether or not we are going to be required to pay that many, many times over the course of this, or we can work this out that we will make arrangements over when the officers are necessary to come to Court.

MR. DOMZALSKI: I believe that could be worked out.

MS. WOLKENSTEIN: Then this issue is resolved. Thank you very much, I appreciate that.

THE COURT: Okay.

MR. DOMZALSKI: While we are here do you want to --

MS. WOLKENSTEIN: No, I don't. We will... Do you want me to give the subpoenas now?

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THE COURT: No, 142.

MS. WOLKENSTEIN: We are not ready to discuss the content of the subpoenas.

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

MR. DOMZALSKI: Thank you, Your Honor. That concludes our business before the Court today. May we be excused?

THE COURT: You may be excused. Any other problems, Counselor?

MS. WOLKENSTEIN: No, that resolves the issues that I have.

Yes, Your Honor, I'm sorry, there is a possibility of seeing the physical evidence out of the presence of the District Attorney's Office. It requires a Court order.

THE COURT: I am not going to sign such a Court order. I am not signing such a Court order. If they want to let you see it, you will do it in the presence of the District Attorney's Office, period.

MS. WOLKENSTEIN: That is the end of this discussion.

THE COURT: That is the end of this discussion. You will get to see it. They want

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to be there present when you see it.

MR. GRANT: Your Honor, Miss Pasquariello and Mr. Domzalski were here today specifically to address the issue of whether or not these subpoenas are even valid and whether --

MS. WOLKENSTEIN: Your Honor --

MR. GRANT: Excuse me... As to whether or not --

THE COURT: Let me hear what the problem is.

MR. GRANT: As to whether or not these subpoenas would even be honored, Your Honor. And she has indicated in a colloquy with Counsel at the bar of the Court sotto vote that she does not wish to litigate those issues today. Why, I don't know. But --

MS. WOLKENSTEIN: They haven't been served yet, to begin with.

MR. GRANT: But I think that issue should be addressed.

THE COURT: Well, I think, I think somebody ought to teach them --

You are from New York, aren't you?

MS. WOLKENSTEIN: Yes.

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THE COURT: Okay. Somebody here, well, you must have somebody here that's from Philadelphia.

MS. WOLKENSTEIN: No, no luck.

THE COURT: What do you mean? What happened to all those Counsel that you had here?

MS. WOLKENSTEIN: (Indicating).

THE COURT: They disappeared.

MS. WOLKENSTEIN: You scared them away, Judge.

THE COURT: What happened to them? They disappeared, all those learned Counsel that you had here.

Well, I tell you what, why don't you talk to them and they will tell you what kind of subpoena to use.

MS. WOLKENSTEIN: That is fine, I would be happy --

THE COURT: Because I am not here to hold classes in the practice of law here.

MS. WOLKENSTEIN: That is fine.

MS. PASQUARIELLO: Your Honor, for a moment: Anne Pasquariello, also Counsel for the City, specifically the Medical Examiner's Office. We were served with two subpoenas

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yesterday. My supervisor John Straub spoke with Counsel --

-- not you, with someone else --

-- and accepted service. Just for the record, I would have the subpoenas declared null and void so that we are not under subpoena. Counsel made a representation to the Court that they were not served. In fact, the City of Philadelphia accepted the subpoenas. So I just would --

MS. WOLKENSTEIN: That particular subpoena, okay.

THE COURT: She said she is going to get new subpoenas.

MS. PASQUARIELLO: Fine. So the subpoenas for the Medical Examiner's file and --

THE COURT: She is going to get new subpoenas.

MS. PASQUARIELLO: Fine. Thank you.

THE COURT: Somebody will instruct her.

MS. WOLKENSTEIN: We will get some help to do it.

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

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THE COURT: All right, that was nice and easy. What else do we have?

MR. WEINGLASS: Nothing further.

THE COURT: Anything else? Anything for the Commonwealth?

MR. GRANT: Yes, Your Honor, there are two things. Since the Supreme Court has ordered the hearing to proceed, I would like an order and a list of witnesses, as well as an offer of proof. Unless Counsel is willing to state that the affidavits that are submitted pursuant to attachments or as exhibits to their Petition is the offer of proof, then I will accept that. But absent that stipulation, I would like an offer of proof as to their witnesses.

THE COURT: Well, we ought to have a schedule as to who is going to come, what the order is that you are going to present them. Could you do that?

MR. WEINGLASS: We will provide them with an order of Wednesday witnesses on Tuesday.

MR. GRANT: We would like to have that.

THE COURT: You ought to have it.

MR. GRANT: They have those five days,

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we would like to have that five days also.

MR. WEINGLASS: We will have five days to prepare our hearings. We asked for two weeks. At the end of it we were only given one week.

THE COURT: Let me say this: If you need a little recess to look them over, I will grant it. If they don't care about pushing the case I am not going to worry about it.

MR. GRANT: Your Honor, with all due respect, I'm worried about it because I have to cross-examine these people and I would like to know. I don't want to stay up all night preparing for witness number 19 when they are putting witness number one on. And I think it is only common courtesy and practice traditionally.

THE COURT: I think he ought to give you the order in which he is going to call them and if for any reason you can't call them in that order let them know. No big deal.

MR. GRANT: Can they let us know sometime this week? I mean we have a lot more days this week.

THE COURT: I agree they should do

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that. Well, you should have that by this week, yes.

MR. GRANT: Could we have it by tomorrow, at the end of the business day?

MR. WEINGLASS: No, that is quite --

THE COURT: Let's say Friday.

MR. WEINGLASS: That is quite impossible.

MR. GRANT: Friday in the morning, Your Honor?

MR. WEINGLASS: Quite impossible.

THE COURT: Why is it impossible?

MR. WEINGLASS: Your Honor, because we said -- let me, before I say that, let me say this. Counsel worries about time.

THE COURT: No, I am worried about procedure.

MR. WEINGLASS: He is worried about his time.

THE COURT: No, I am worried about procedure.

MR. WEINGLASS: Yes.

THE COURT: We should have some idea who you are going to call when. In other words -- and I am not going to hold you to that

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to the very minute -- but the thing is, we don't know how many witnesses we could get through on Wednesday the 26th, how many we could cover on the 27th. But I think there ought to be at least a list and an order.

And if you are telling the Commonwealth that, he is asking for an offer of proof, but if you say they are going to testify to what they put in their affidavit, he is satisfied with that. All he wants to know is the order so that they could sort of prepare.

MR. WEINGLASS: If the Court will hear me out. Yesterday at about this time the same attorney who makes the plea for time to prepare for cross suggested -- please hear me out without interrupt.

THE COURT: I know that, but, Counselor --

MR. WEINGLASS: I ask for the same privilege.

THE COURT: Counselor, just one thing: I don't care about the time for preparing for cross-examination. I'm more concerned with some order. So you should send me a copy too. I would like to know what order you are going to

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call these people.

MR. WEINGLASS: We do not presently know that. I told the Court yesterday it would take two weeks for us to prepare. We are now given one week. We will know it probably Tuesday. And I want to say this: We have already, the day before yesterday, or yesterday, served Counsel with a list. He has one.

THE COURT: Do you have a list?

MR. GRANT: I had the list that they gave me in the morning and then they said they didn't have those witnesses here to testify. And I think that was merely --

THE COURT: I guess that's the ones he is going to call on Wednesday.

MR. WEINGLASS: Right.

MR. GRANT: That was the ones he was going to call.

MR. WEINGLASS: He has it for a week. He could sleep all weekend if he would like.

MR. GRANT: Your Honor, they gave me a list that was nothing more than a falsehood: None of those witnesses were here. Because you heard him say they don't have any witnesses, but they gave me a list of witnesses. So I want to

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know the real deal. And I would like to have it in a tixnely fashion.

THE COURT: Well, why don't you get it over to them. You ought to know, for instance, what witnesses you are going to call on Wednesday the 26th.

MR. WEINGLASS: I will know on Tuesday.

THE COURT: You will know that even before Tuesday.

MR. WEINGLASS: Your Honor.

THE COURT: You will know that before Tuesday.

MR. WEINGLASS: We are operating under extraordinary pressure here.

THE COURT: What pressure? Hey, you went to the Supreme Court and they said start on Wednesday.

MR. WEINGLASS: We wanted two weeks, we got one week.

THE COURT: Well, I'm sorry about that.

MR. WEINGLASS: Two weeks puts us under great pressure, one week puts us under extraordinary pressure.

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THE COURT: That reminds me of the old Biblical story of Solomon, you remember, the women that were claiming the baby. And Solomon says cut the child in half and give a half to that woman and a half to that woman.

MR. WEINGLASS: We felt like that child.

THE COURT: That is basically true.

MR. WEINGLASS: We have been cut in half.

THE COURT: So do I, because I wanted to start today and you wanted to start August 1st. And the Supreme Court broke the bone, gave you a piece, gave me a piece, and said now you lawyers chew on it, okay.

MR. WEINGLASS: Well, we are suffering.

THE COURT: I didn't chew on mine, I ate it.

And if there are any reporters in here, that's spelled A-T-E.

I ate it, okay. So we'll start on July the 26th. Go ahead.

MR. WEINGLASS: We will try to be ready and we will have a list on the 25th.

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MR. GRANT: I object.

THE COURT: All right. If you need time too, if he wants to delay things.

MR. GRANT: Delay them.

THE COURT: Anything else?

MR. GRANT: Just a moment.

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

MR. WEINGLASS: Your Honor, just one minor point.

THE COURT: What's that?

MR. WEINGLASS: I want to state for the record this morning when the Court came into the Courtroom, and the Crier asked people to rise --

THE COURT: Right.

MR. WEINGLASS: -- there were some in the audience who did not rise.

THE COURT: Right.

MR. WEINGLASS: But remained seated quietly and non-disruptively. I want to state that for this reason. It is my understanding that in the United States, no civilian, no citizen need to rise when a judge enters a courtroom. We do not impose that on any citizen

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of the United States.

THE COURT: We don't?

MR. WEINGLASS: Provided they don't disrupt.

THE COURT: We don't?

MR. WEINGLASS: We do not.

THE COURT: Did you ever hear the United States Supreme Court?

MR. WEINGLASS: Pardon?

THE COURT: Did you ever attend the United States Supreme Court when they come in, the Justices?

MR. WEINGLASS: The United States Supreme Court comes in, those who want to rise rise, those who do not want to rise remain seated quietly and it is totally acceptable. In any Court in the United States.

THE COURT: Any court?

MR. WEINGLASS: Yes. We are not compelled in this country to show respect to anyone in authority. If the President of the United States walked into a room --

THE COURT: You are not showing respect to me, you are showing respect to the Court itself. The Court system.

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MR. WEINGLASS: That is not required.

THE COURT: Not me. Well, I stand up.

MR. WEINGLASS: Your Honor is welcome to stand or remain seated. As everyone else in this country.

THE COURT: Do you remain seated? Well, Counsel, I won't argue with you.

MR. WEINGLASS: I am an officer of the Court.

THE COURT: Counselor, in this Courtroom here, they will stand.

MR. WEINGLASS: Well, Your Honor, people have been ejected.

THE COURT: Let them stay outside, okay. Stay outside.

MR. WEINGLASS: It is a public trial, they want --

THE COURT: It is a public trial. They could come in later. Stay outside. But when this Court opens, they will rise like anybody else. And if they feel they don't want to rise, let them stay outside. And when the Court is in session and they want to come in, fine, let them come in then. I don't care.

MR. WEINGLASS: About if they wait

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outside they won't get in because there is a long line.

THE COURT: Well, that is not my problem.

MR. WEINGLASS: But it's wrong, Your Honor, to --

THE COURT: No, it is not wrong. That's the way I will maintain order in this Courtroom. Period. Everybody will have to do that in order to maintain the decorum of this Courtroom.

MR. WEINGLASS: Your Honor, it doesn't detract from the decorum.

THE COURT: Go argue that to somebody else. That means nothing to me, that argument means nothing. If they want to stay outside, they don't want to rise, fine, stay outside. After the Court is in session then maybe they could come back in.

MR. WEINGLASS: With all due respect, I have been through this many, many times, and every court has recognized the right of a citizen of this country to exercise the right to remain seated provided they don't disrupt the proceeding.

Page 45.

THE COURT: Fine, I heard your argument.

MR. WEINGLASS: And it is denied.

THE COURT: Well, I told you, this is my procedure here to maintain the decorum in the Courtroom. If they don't want to rise, stay outside.

MR. WEINGLASS: Your Honor, the only disruption it causes --

THE COURT: They could come in afterwards.

MR. WEINGLASS: The only disruption it causes is when you send Court Officers out into the center of the Courtroom to remove them. That does cause a disruption.

THE COURT: That's what they want to do, fine, then we will have to confront that. That is my order, okay, in this Courtroom. Now, if they want, if they don't want to rise, fine, stay outside. After the proceedings start, then they could come in.

MR. WEINGLASS: Your Honor, you are denying Mr. Jamal a public trial.

THE COURT: I am not denying anybody. I am saying that is the decorum that I want

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carried out in this Courtroom, period. Counselor, I am not going to sit here all day and argue with you about it. You made your point, I have made my decision, that's it. I am not going to argue forever. Anything else that you have?

MR. WEINGLASS: I just want to put in a legal frame one sentence.

THE COURT: Well, a legal frame, I put it in a legal frame too: Maintain the decorum in this Courtroom, period.

MR. WEINGLASS: And I just want to say I am making this motion on behalf of Mr. Jamal who is entitled to a public trial of those who --

THE COURT: He will have a public trial.

MR. WEINGLASS: -- those who won't respect the institution of the Court.

THE COURT: Those who do not show respect to this Court during these proceedings will be outside.

MR. WEINGLASS: And he is being denied a public trial.

THE COURT: No, he is not. There are

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a lot of people here. There is news media here, there is everybody here. This is a public trial. No one is entitled to a trial solely of his exclusive membership. Nobody is entitled to that.

MR. WEINGLASS: And he is not.

THE COURT: All you have to do, Counselor, is to tell them to stand up. If they don't want to stand up, stay outside, wait until it starts, and then come in. Anything else, gentlemen?

MR. GRANT: No, Your Honor.

THE COURT: All right, we will adjourn until Wednesday, July the 26th, 1995, Courtroom 253.

MS. WOLKENSTEIN: 653 next week. A public trial would require the other Courtroom that we had.

THE COURT: Counselor, I could only use the Courtroom that the Court has available for me. I'm lucky they are giving me this Courtroom. They are liable to give me one on the seventh floor or sixth floor, where you won't have anybody in there.

MS. WOLKENSTEIN: I know we need a

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Courtroom that has security access to it and I know --

THE COURT: Counselor, you go over and see Court Administration, tell them you would like to be in 653. I don't care, I will go to whatever Courtroom they send me. I've checked with them, I say what Courtroom am I going to be in so I could let the public know. They said, 253. This is what you got, 253, all right.

THE COURT OFFICER: The matter at the bar of the Court will now stand in recess until 9:30 a.m. in Courtroom 253, July 26th.

Thank you.

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(The hearing was concluded at this time.)

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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