Page 2.
Page 3.
(At 10:05 a.m. the hearing was convened in
the presence
of the Court and the attorneys.)
THE COURT OFFICER: Step out, please.
He will not be allowed back in for the rest of the trial.
Sorry for the interruption, Your Honor.
THE COURT: That's all right.
MR. WEINGLASS: Your Honor, I believe a person in the
spectator section has been removed for allegedly having a sign. And the
sign that he had said, as he stood there quietly and respectfully
standing, was standing under protest. Or under duress, I believe it said.
And I just think the record should reflect that. Because the gentleman did
not interrupt the Court proceedings at all. And he just held up an
explanation as to why he was standing. I understand the man's name is Mr.
Dubside. He is opposed to standing as a matter of religious scruple. He
felt that his religious scruples compelled him to make a note of why he
was
Page 4.
standing.
THE COURT: Counselor, I told you before: If they don't
want to stand, stay outside until the Court begins and then they could
come in. But there are to be no signs in the Courtroom. That's what I
specifically ordered. Okay.
MR. WEINGLASS: Yes.
THE COURT: All right, we have a motion to quash on behalf of the
State.
MS. WOLKENSTEIN: Your Honor, before we begin --
THE COURT: No, that's what I set for this morning. So
once we get finished with that, then we will take up whatever you
have.
MS. WOLKENSTEIN: Okay, Your Honor.
MS. MIDDLETON: Good morning, Your Honor. My name is
Stephanie Middleton. I am Deputy General Counsel for Governor Ridge.
And with me is Greggory Melinson, also General Counsel.
We have the privilege of representing Governor Thomas
Ridge; Paul A. Tufano, General Counsel; William Chadwick, Executive Deputy
General Counsel; Syndi Quido, Deputy General
Page 5.
Counsel; Timothy Reeves, Press Secretary to Governor
Ridge; and John Taylor, Deputy Press Secretary to Governor Ridge.
The reason we are here is last Monday Governor Ridge was
served with a subpoena to appear here on Wednesday to testify and also to
produce documents. We filed our motion to quash on Tuesday, the next day.
The subpoena for documents demanded that Governor Ridge produce all files,
notes and memoranda regarding the review of the case of Commonwealth
versus Mumia Abu-Jamal and the signing of the death warrant for Mr. Jamal
on June lst, 1995, and all statements of protocol, memoranda or directives
regarding procedures to be followed by the Governor's Office in signing a
death warrant, the service of the death warrant, and public pronouncements
about signed warrants.
The subpoena for documents served on the Office of the
General Counsel requested all files, notes, memoranda regarding review of
the case of Commonwealth versus Mumia Abu-Jamal, and the recommendation,
if any, that the Governor sign a death warrant for Mumia Abu-Jamal; And it
goes on.
Page 6.
The threshold issue in connection with this subpoena,
these subpoenas, is whether the material or the testimony requested has
any relevancy at all. Whether it could be at all material for the issues
before this Court, which was whether there was a fair trial back in
1982.
Another issue before the Court is whether a stay should be granted.
There is nothing that Governor Ridge or any of his staff
could add to this proceeding that would affect one way or the other the
decision on those issues. The purpose of a subpoena is not to allow
counsel to conduct fishing expeditions or to intimidate or harass, which
is what we believe is going on here. But rather a subpoena is issued by
the court to aid the court in determining the issues before it. And that
is the only valid purpose of a subpoena.
So before we even get to the issue of any of the
privileges, the issue of relevance and materiality of any of this
information that Counsel for defense is seeking must be addressed.
The Counsel for Mr. Abu-Jamal claim
Page 7.
that the Governor rushed to sign the death warrant. In
January the Governor announced that he would be signing death warrants. He
announced that they would be signed in chronological order based on when
the files were sent from the Supreme Court to the Office of General
Counsel. And there is no evidence that this warrant was signed out of
order at all.
One reason that information from the Governor's Office
really has nothing to do with this proceeding is that the Governor's role
in this has clearly been ministerial. Under the statute he must sign death
warrants within 90 days of receiving the file from the Supreme Court. And
his role under the Morganelli case from Commonwealth Court, his role, he
really has very little, if any, discretion: He must sign these death
warrants. So his deliberative process, his reasons, what his lawyers told
him, really have nothing to do with this proceeding.
We have raised several privileges. One clear privilege is
the attorney-client privilege. Under the Commonwealth Attorneys Act, the
Office of General Counsel is the lawyer for the Governor. And advice given
to the
Page 8.
Governor by the Office of General Counsel is clearly
protected by the attorney-client privilege. It's also protected by work
product privilege.
In addition, this is a very unusual circumstance where a
Governor has been subpoenaed. There is an executive privilege recognized
by the Supreme Court, Pennsylvania Supreme Court, in the Hancraft case.
And that executive privilege has never be weakened in any way. The purpose
of the executive privilege and the deliberative-process privilege here,
the reason for having it in this case is clear why there is such a
privilege. If the Governor, who has now signed nineteen death warrants,
could be subpoenaed and have to turn over this sort of information every
time a death warrant is signed, it would, first, chill any advice given to
him by his Counsel, they would not be able to be candid and frank in
reviewing these files. They would have to worry about the fact that it
would become public, and it would interfere with the purpose of having
Counsel for the Governor review the files from the Supreme Court.
Page 9.
the Governor's ability to run the state, which is what he
is required to do.
The response to our motion to quash I received just this
morning. And it raises an argument that the information from the Governor
is relevant, they claim, because he was aware that the PCRA petition was
going to be filed on June 5th. He signed the warrant on June 1st.
First of all, if you look at the affidavits that were
filed in connection with previous pleadings, what they have done in this
response is mischaracterize what was said. In the letter to Mr. Melinson
in April they didn't say they would be filing the petition shortly, they
said they would file it when they had all the information that they need.
Again they have mischaracterized what Syndi Quido allegedly said to
someone on the phone. She did not say she had not been asked to commence
such a review. And again I haven't seen the Patriot News report that they
rely on, but I question whether it says that he was going to file the PCRA
Petition on June 5th. He claims that we were aware that his attorneys were
visiting him in order to get his signature on a petition, a PCRA
petition.
Page 10.
And that's not at all what the letter said. It just said
they needed to come by to get his signature on legal documents, which has
been going on for a long time.
The last event in this case occurred when the U.S.
Supreme Court denied a request for reconsideration back in June of 1991.
It was four years later that the Governor signed the death warrant. Under
the Morganelli case, waiting for a governor to wait three or four or five
years to sign a death warrant was clearly an abuse of the governor's
statutory duty. He was required to sign it much more quickly. Now we have
a statute that requires him to sign it in 90 days. So the accusation that
the Governor acted in haste or didn't completely review the record or had
some other motive, it is harassment and intimidation. Governor Ridge will
not be intimidated from signing the death warrants as he is required to do
by law.
Thank You.
MS. PERKINS: Your Honor, if I may: First of all, I have
just looked at the memorandum that defense Counsel has presented to the
Governor's Office. And their relevance
Page 11.
argument is that it responds to the argument of
intentional delay. Well, perhaps that might be correct, Your Honor, if the
entire argument regarding intentional delay had to do with what occurred
between June 1st and June 5th of this year. Unfortunately, it's not. The
Commonwealth's argument for intentional delay has to do with what has
occurred in this Defendant's case, or the lack of proceeding with the case
for the past five years. The fact is that Mr. Weinglass has been involved
in representing this Defendant and preparing for a PCRA petition for at
least the past three years, by his own admission, and then Miss
Wolkenstein has been assisting the Defendant for that length of time as
well. So their claim that somehow bringing in staff from Governor Ridge's
Office or Governor Ridge himself would somehow refute the argument that
there was intentional delay I would submit to the Court is simply
misguided and does not address the issue that was raised by the
Commonwealth.
The newspaper article that Counsel cites is very
interesting for the reason; Your Honor, that he omits the fact that there
were
Page 12.
also many other newspaper articles where Counsel was
quoted as saying as recently, or as late as two years ago, that they would
be filing a PCRA petition and were in the process of getting it together.
Now they say it takes them two years to do it. I would submit to the Court
that it does not take two years to do it and given what has been presented
here certainly it didn't take two years to do it because there are so many
gaps for what they have presented as their reasons for desiring and being
entitled to a new trial.
Furthermore, Your Honor, the purpose of this proceeding
is to find out whether or not there is anything involved in the
truth-determining process that is somehow suspect or invalid. Whether the
Governor signed a warrant on June 1st or not is immaterial to that issue.
And that is the reason why they are here for a PCRA: To attack the
truth-determining process. And that is an issue for the Court's review.
Defense Counsel is simply attempting to revisit the issue of whether or
not they are entitled to a stay prior to the PCRA hearing or prior to the
actual
Page 13.
execution date. Perhaps if this Court had ruled on the
stay question they would have a point. But this Court has not done that.
The Court has held the stay issue in abeyance, held it under advisement
until such time as it becomes more relevant.
There is no reason to delay these proceedings. There is
no reason to revisit that question. The Supreme Court has specifically
stated that this hearing was to proceed. The Court has done so. And I
would submit to the Court that there is no reason to entertain further
this issue regarding a stay at this point or anything that the Governor's
Office may have done. It is irrelevant to these proceedings regarding the
PCRA. The Court has stated that if a stay is warranted as we approach the
execution date, then if this Court has not ruled it will at that time
review that issue and the Defendant is certainly entitled seek additional
relief from the Supreme Court if so warranted.
So I would submit to the Court that the subpoena that
they have submitted to the Governor's Office should be quashed: It is
Page 14.
irrelevant for these proceedings. And it is nothing more
than an attempt to revisit issues that have already been resolved for the
time being.
MR. WEINGLASS: Very simply: The reasons why this subpoena
was issued for the Governor plus five of his aides is very obvious to this
record no matter what Counsel now claims. The reason why the subpoena
issued -- and it didn't issue until after the accusation was made -- was
because the representatives of the Commonwealth in this Court and before
the Supreme Court of Pennsylvania made the allegation and repeated it
often that Mr. Jamal intentionally delayed filing his Post-Conviction
Relief application until after the Governor signed the warrant. The actual
fact of the matter is and the truth is that Mr. Jamal announced his
intention of bringing his Post-Conviction Relief before a Court of
competent jurisdiction, where his 19 claims could be litigated in an
orderly proceeding, and knowing that fact, the Governor moved
expeditiously, out of order, in violation of his protocols, and after the
ordinary course of
Page 16.
Commonwealth is correct, that Mr. Jamal purposely and deliberately
delayed.
Your Honor, I want to try to avoid this if I could. And I
make this offer and suggestion. We do not need the Governor, we do not
need any of his aides. If the Commonwealth will now withdraw the false
accusation that Mr. Jamal delayed until after the Governor signed the
warrant, we will withdraw the subpoenas and we can move on. It is a simple
concession that they could make. And they have the power to make it. Then
this record would be clear, and the record would be truthful, and the
record would be honest. That it was the Governor who moved quickly to sign
a warrant, knowing Mr. Jamal was coming into Court.
And I will go even further. If the Commonwealth will not
make that concession on the record, which I feel in all honesty they ought
to, if for no reason but to prevent the Governor from being embarrassed
publicly, then I make this offer... that Mr. Jamal will agree to a
stipulation without the need for the Governor to appear, if the Governor
will stipulate to the time and date that he signed that warrant, and
Page 17.
if he will further stipulate to when he received
information that Mr. Jamal was coming to Court on June 5th, and if the
Governor's Office will, furthermore, release the protocol under which the
Governor is to consider these death warrants, if we have that stipulation,
then we will withdraw the subpoenas.
So I offer the Commonwealth two particular ways of
resolving this issue without the need for further litigation. One is to
concede that Mr. Jamal did not delay. And secondly, to enter into a
stipulation as to the time and the date the Governor signed that warrant,
as to when he knew that Mr. Jamal was coming to Court, and a submission of
the protocol. It would be that simple and I think we could move on and I
think the record would be complete on that issue.
When we talk about a warrant, a death warrant, a death
warrant is one of the weightiest responsibilities of a Governor of the
Commonwealth of Pennsylvania. We are not talking about a minor act. We are
talking about the Governor putting the authority of his Office behind a
killing of a human being. Is there
Page 18.
anything more weighty than that? Is there anything that
calls more for testimony from the Governor than that act? That's why his
testimony is essential and important.
Are we asking for what the Commonwealth suggests, the
deliberative process? Are we going to ask Governor Ridge what was going
through your mind when you signed that warrant? The answer is no. We are
merely seeking into a ministerial act: Governor, when did you put your
signature on this document, could you give us the time and the date. That
is a ministerial act. That is not an act that is subject to the privilege
of deliberative process because the time and the date of signing an
official public document is a ministerial act, pure and simple. So we are
not seeking anything of a privileged nature here.
Beyond that we are going to ask the Governor a second
question. When did you receive the information that Mr. Jamal was on his
way to Court with a Petition of over 300 pages, with 19 claims. When did
you get that information. That also is not a deliberative act. I am not
going to ask the Governor what
Page 19.
did you do with that information, how did you process it;
I'm just asking him when did you get it. Because if we have the time that
the Governor knew Mr. Jamal was coming to Court, and the time he signed
the warrant, we will then see precisely what happened on this occasion,
which is the Governor running quickly, expeditiously, and in violation of
protocol, to preempt Mr. Jamal's litigation.
MR. WEINGLASS: The Governor's protocol, Your Honor.
Counsel referred to it but not precisely. Counsel said that in January
when Governor Ridge took office there was a document setting forth the
procedures for signing warrants. I believe that's true. That document is a
protocol. That document should be made public.
MR. WEINGLASS: That was the statute.
THE COURT: Well.
MR. WEINGLASS: But within the Governor's Office, the
Governor has a staff and he wrote out the procedure for his staff:
This
Page 20.
is the way I want the cases reviewed inside, this is the way I want you
to handle it.
MR. WEINGLASS: Pardon?
MR. WEINGLASS: I believe it's a written document.
THE COURT: Well, so what? You mean he has to tell us how he does these
things?
MR. WEINGLASS: Yes.
THE COURT: If he commutes a death sentence, does he have to tell us why
he did it?
MR. WEINGLASS: Oh, I'm not seeking that, Your Honor.
THE COURT: Oh, I know you're not, but you are talking about
protocol.
MR. WEINGLASS: Right. If he commutes a death sentence and
he does it pursuant to written guidelines, yes, we should have the
guidelines.
MR. WEINGLASS: Because the guidelines, he might be violating his own
guidelines.
Page 21.
THE COURT: So what? He is the Governor, he could do anything.
MR. WEINGLASS: No, that's not --
THE COURT: Yes.
MR. WEINGLASS: Not in the United States, Your Honor. We are --
THE COURT: The United States.
MR. WEINGLASS: We are still a government of laws, not of people.
THE COURT: He could commute a death sentence, he could
commute a life sentence, he could even pardon. You've heard of that,
haven't you?
MR. WEINGLASS: I have vague recollections, yes.
THE COURT: Well, he has that right.
MR. WEINGLASS: Yes.
MR. WEINGLASS: Well, we are not asking the Court to complain. If
someone --
MR. WEINGLASS: Could the petitioner complain? The answer is yes. If
the
Page 22.
MR. WEINGLASS: If the Govern --
THE COURT: Wait awhile. What petitioner? Who are you
talking about? You mean the victim's family could complain?
MR. WEINGLASS: Yes. Judge -- no.
THE COURT: That's what I am talking about. If he would pardon somebody,
okay.
MR. WEINGLASS: Right.
MR. WEINGLASS: Well, Your Honor, that's an interesting
hypothetical.
THE COURT: It is, sure it is, but it doesn't happen.
MR. WEINGLASS: Unfortunately, to my perception it is of
no moment to this issue but it is an interesting hypothetical that ought
to be posed somewhere.
THE COURT: That's why I say that the Governor has this
power. You know, whether or not you like it, we have three separate and
distinctive branches of government here: We have the executive,
legislative and the
Page 23.
judiciary. The Governor doesn't tell me how to run the
Court, I don't really tell him how to run the State. That is his
prerogative.
MR. WEINGLASS: Well, Your Honor, my understanding is in
the Commonwealth of Pennsylvania very frequently the courts do tell the
Governor what he may or may not do, with all due respect.
THE COURT: Only if he violates somehow the Constitution.
But under the Constitution he has this authority.
MR. WEINGLASS: Or if he violates a statute. Or if he violates a
protocol.
MR. WEINGLASS: If he violates his internal protocol.
THE COURT: If it is his own protocol, you mean he can't violate his own
protocol?
MR. WEINGLASS: Your Honor, this is my position.
THE COURT: I know what your position is. You say this is
all important because of the stay. And I told you I have taken the stay
under advisement.
MR. WEINGLASS: Yeah.
Page 24.
THE COURT: Well, I told you not to worry about it.
MR. WEINGLASS: Well --
THE COURT: I told you not to worry about it.
MR. WEINGLASS: I appreciate the Court knows what I am
trying to say but I would like to have the opportunity to say it.
THE COURT: All right, say it.
MR. WEINGLASS: The question of granting a stay is a discretionary
one.
MR. WEINGLASS: At any time.
THE COURT: No, no, no, no. I don't consider it discretionary to any
extent.
MR. WEINGLASS: Discretionary one for the Court.
THE COURT: Well, somebody will grant a stay.
MR. WEINGLASS: Acting under their discretion, right.
THE COURT: Because when somebody files his first PCRA
petition, he has a right to have that decided all the way up to the
Supreme Court, wherever he has to go. I know that, you
Page 25.
know that. So I don't know where you are going.
MR. WEINGLASS: No, Your Honor, if you give us a new trial which we seek
--
THE COURT: Well, wait awhile. Wait awhile.
MR. WEINGLASS: We will not go up, we will go to a new trial. It doesn't
have to go up.
THE COURT: We are talking about a stay at this moment, we
are not talking about a new trial. I haven't heard all the evidence
yet.
MR. WEINGLASS: This case will not go anywhere beyond this
Court if the Court grants our Petition. But the Court is indicating it's
already made up it's mind.
THE COURT: I haven't made up any mind. I said you are
asking me to make a decision when I haven't heard the whole case yet.
MR. WEINGLASS: Right.
THE COURT: Right now we are talking about a stay and you
are saying that's why you need the Governor here, as far as this stay is
concerned.
Page 26.
MR. WEINGLASS: Yes.
THE COURT: I don't need the Governor to make a decision on the
stay.
MR. WEINGLASS: You have taken me a little far adrift from my point. Let
me just go back to it.
THE COURT: All right.
MR. WEINGLASS: If this Court is told that the Governor
violated his own protocol, that might be a fact you want to take into
account when you decide whether or not to grant the stay.
THE COURT: I am going to grant the stay on what you told
me the law was. It has nothing to do with the Governor.
MR. WEINGLASS: Well, if the Governor --
THE COURT: I don't need the Governor for that.
MR. WEINGLASS: You're looking at the Governor's warrant. It's his
document.
THE COURT: Well, you said you want to know when he signed
it. Look at it, you could see when he signed it.
MR. WEINGLASS: But --
Page 27.
THE COURT: But I don't need his testimony in order to help me make a
decision on the stay.
MR. WEINGLASS: No, you may or may not, but another court
might want a record and we are being prevented from completing a
record.
THE COURT: No. I took it under advisement, Counselor. And I don't think
we need anyone else.
MR. WEINGLASS: But we are preparing a record, if nothing
else, and another court might want to know is this a case where Mr. Jamal
deliberately delayed as the Commonwealth accuses him.
THE COURT: No.
MR. WEINGLASS: Or is it not.
THE COURT: They are saying you delayed from 1991 or
whenever it was the last time, up until the time that you filed it. That's
the delay they are talking about. But that has nothing to do with the
stay.
MR. WEINGLASS: No. I submit, Your Honor --
MR. WEINGLASS: It has a great deal.
Page 28.
THE COURT: No, it will not influence me in the stay at all.
MR. WEINGLASS: But it might influence another court.
MR. WEINGLASS: You are preventing us from making a record.
MR. WEINGLASS: Because another court, seeing that Mr.
Jamal did not delay, but that the Governor signed a preemptive warrant,
might then on that ground alone issue a stay.
THE COURT: I told you before the purpose of a stay in a
situation such as this. Where the Defendant files his first PCRA matter,
he is entitled to have that matter go all the way up. We are not talking
about a second PCRA or a third PCRA or anything of that nature. This is
the first PCRA matter.
MR. WEINGLASS: Right.
THE COURT: And it will be taken care of at the appropriate time.
MR. WEINGLASS: While we are on that issue, which I will follow up to
the Court's
Page 29.
comment: Today is August lst, as I understand it.
THE COURT: Yeah.
MR. WEINGLASS: We have an execution date of August 17th.
THE COURT: Oh, that's far away. That's 16 days away, don't worry about
it.
MR. WEINGLASS: And the Court is of the opinion that this matter could
be heard through it's entirety?
THE COURT: Well, I don't know.
MR. WEINGLASS: And a transcript prepared? And the Supreme
Court reviewing it if the Court turns us down? And all that could happen
before the 17th?
THE COURT: Well, I don't think so. I don't know, it
depends on how long you are going to take. I don't know what you are doing
or how long you are going to take. I don't know who your witnesses are.
Could you tell me how long you are going to be? I don't have a crystal
ball, I don't know.
MR. WEINGLASS: Probably another 10 days.
Page 30.
MR. WEINGLASS: That would put it to August 10th. Could
you imagine the transcript being transcribed of the entire hearing and the
Supreme Court resolving it on the record?
THE COURT: You said by August the 10th. Why don't you see me on August
the l0th?
MR. WEINGLASS: Well, Your Honor, you're talking about a man's life.
THE COURT: I am, I understand that. But see me on August the 10th.
MR. WEINGLASS: For what purpose?
THE COURT: Well, because you will say I'm finished,
Judge, I want you to rule. You held under advisement the petition to stay,
I want to know what you are going to do. I will give you my decision
then.
MR. WEINGLASS: You will be able to make a decision, Your Honor, without
reading the record?
THE COURT: I already read the record.
MR. WEINGLASS: No, the transcript of this proceeding.
THE COURT: Oh. I am not basing it on the transcript. I
told you before when someone for the first time files a PCRA matter, he
is
Page 31.
entitled to have that go all the way up to the
Pennsylvania Supreme Court, maybe even into the Federal courts. So I will
take it up at that time. I don't think you need the Governor to help you
on this.
MR. WEINGLASS: But I observed that the Court is not
taking notes during the testimony. And the Court is going to make a
decision on this life-and-death issue without reading the transcript?
THE COURT: I am going to make a decision on the stay.
Don't get excited, Counselor. And I don't need the Governor or his staff
to help me on that.
MR. WEINGLASS: Let me just say --
THE COURT: Let me say this to you: Suppose I had denied the stay, where
would you have gone?
MR. WEINGLASS: We are talking hypothetically?
THE COURT: Yes. Of course hypothetically. Because I took it under
advisement.
MR. WEINGLASS: If the Court denies the stay.
Page 32.
THE COURT: Yes.
MR. WEINGLASS: And the Court has not done so but is taking it under
advisement.
THE COURT: No, I said let's assume for the sake of argument I denied
your stay. Where would you run?
MR. WEINGLASS: On August l0th?
THE COURT: I don't care, August l0th, today, tomorrow, August l0th,
where would you go?
MR. WEINGLASS: We would go to the Pennsylvania Supreme Court.
THE COURT: Okay. Don't you think they would grant you the stay
maybe?
MR. WEINGLASS: Your Honor, I think the Court that we are
before has an obligation to consider that on it's own and not pass it off
to another court.
THE COURT: I am not asking about another court, I just
want to know where you would go. That's where you would go.
MR. WEINGLASS: If we lost.
THE COURT: That's where you ran when I wanted to proceed
immediately to take testimony. You wanted August the 1st. As I
Page 33.
said to you before, the Court took the position we're
going to give a piece to you and a piece to me. And I said I swallowed
mine and I ate it and we started on the 26th. You still refused to swallow
yours and proceed on the 26th.
MR. WEINGLASS: We did proceed on the 26th.
THE COURT: Yes, but rather reluctantly. You keep throwing it up to me.
You needed to August the 1st.
MR. WEINGLASS: On the 26th we put on four witnesses. We have been
going.
THE COURT: I know that.
MR. WEINGLASS: We have been going full-time ever since.
THE COURT: I know that, but you told me you couldn't do it. You needed
August the 1st.
MR. WEINGLASS: There is no question but that we are hampered.
THE COURT: Hampered.
MR. WEINGLASS: I want to state for the record that we can
not put this case together in it's adequate form on such short notice.
Page 34.
THE COURT: Well, we are here for a PCRA, not to retry the
case necessarily. But a PCRA, you are limited to what the PCRA says you
could do. And that's all I am interested in.
MR. WEINGLASS: And the PCRA has 18 claims, which is very hard to
prepare with one week's time.
THE COURT: No, it isn't. There is a lot that could be done.
Go ahead.
MS. PERKINS: Your Honor, just to interrupt Counsel's constant rhetoric
and posturing.
MR. WEINGLASS: Your Honor, I object to this young woman,
this young lady saying Counsel's constant rhetoric and posturing after I
stood here this morning without interrupting her. And she had no right to
argue because only the Governor's Counsel has a right in this proceeding
on the question of subpoena. And she argued and argued long and loud with
a lot of rhetoric, and saying things like a lot of newspapers without even
appending them to her papers.
MS. PERKINS: Your Honor, that is the
Page 35.
reason why I have stood up.
MR. WEINGLASS: Pardon?
THE COURT: You submitted newspaper articles to me.
MR. WEINGLASS: Your Honor, you know what's interesting?
We did submit newspaper articles. As the Commonwealth came into Court, in
response to our position they submitted one exhibit. What was the one
exhibit that the Commonwealth submitted? A newspaper article. We submitted
13 affidavits and 47 exhibits. Only the Commonwealth relied on one
newspaper article. That's it. In response to about 500 pages.
MR. WEINGLASS: Not in the hearing. Not in the hearing.
THE COURT OFFICER: 1 through 8.
MR. WEINGLASS: No.
Page 36.
they are.
MR. WEINGLASS: No, that is not true. In their written
response to the Petition they submitted one exhibit. One. And it was a
newspaper article. That's all they relied on in their written response. In
the hearing, yes, they are putting in newspaper articles and when they
don't put them in Counsel just stands up and says willy-nilly oh, there
are lots of newspapers out there, Your Honor. And the Court doesn't stop
her. The Court --
MS. PERKINS: Your Honor --
MR. WEINGLASS: The Court doesn't even stop her from
interrupting me. The Court doesn't stop her when she has no standing to
argue. I won't permit the interruption. I am arguing, I don't allow
Counsel to interrupt me.
THE COURT: I will let you go when he finishes.
MS. PERKINS: I don't know when that is going to be.
THE COURT: I don't know either but.
MS. PERKINS: Fine, then I have something to say whenever he
finishes.
Page 37.
finished. I interrupted him because I am trying to find
out why we need the Governor here. I don't see that we need the Governor.
He is not going to do any good at all as far as I'm concerned. He knows
nothing about the case itself. Not as far as PCRA is concerned.
MR. WEINGLASS: Why we need the Governor is the scurrilous
accusation that the Petitioner delayed purposely.
MR. WEINGLASS: That the Petitioner delayed purposely
until after the warrant is signed and then we could move on.
MS. PERKINS: If I can stand up I could respond to that
but since I am not allowed by Mr. Weinglass to speak.
THE COURT: Well, what I understood she said was the delay
was from 1991 to 1995. That is the delay they are talking about.
MR. WEINGLASS: Let me address myself to that issue.
Because we visited that issue before. On that issue I have informed this
Court, and you will hear testimony within 24 hours, let me assure the
Court you are going to
Page 38.
hear it from the witness stand from the administrator in
charge of the Court reporters, that notes of testimony have been lost.
Transcripts have been lost. I have been trying to get them. They still
don't have them. That's one reason for delay. Another reason for delay: In
April of --
THE COURT: Counselor.
MR. WEINGLASS: April of 1995 the FBI provided us with 700
pages of materials on Mr. Jamal. And last weekend...
MR. WEINGLASS: They provided another hundred. We are still getting
them.
THE COURT: Yes, but what does that have to do with the
PCRA? I don't control the FBI, what they do or what they investigate.
MR. WEINGLASS: Or the Court reporters.
THE COURT: No, a lot of times notes are lost. I don't
lose my notes, Counselor. I have them, I have all the notes that were
taken in this particular case. If you want them, I
Page 39.
will let you look at them.
MR. WEINGLASS: We have subpoenaed Judge Ribner. They were
all before Judge Ribner. And there is a motion now to quash Judge Ribner's
subpoena.
THE COURT: We will take that up too later.
MR. WEINGLASS: Yes, we will. And the Court indicates with a smile on
it's face.
THE COURT: What do you want me to do, cry. What do you want me to do,
cry.
MR. WEINGLASS: The fact of the matter is, the fact of the matter is we
have a client who is on death row.
THE COURT: I understand that.
MR. WEINGLASS: Who faces execution.
THE COURT: So let's proceed.
MR. WEINGLASS: So we do not, as responsible attorneys,
file a post-conviction petition until we have the full record, until we
have all the documents he is entitled to, and until all the issues are
investigated. And in this case, investigated for the first time. And
researched. That's why the delay.
Page 40.
MR. WEINGLASS: 19.
THE COURT: Okay, so you have the 19 issues.
MR. WEINGLASS: Now we have them.
THE COURT: Yes.
MR. WEINGLASS: Did we have them at the start? No. Are we still getting
more? Yes.
MR. WEINGLASS: Oh, yes, we are entitled to file an amended petition
based on --
THE COURT: No.
MR. WEINGLASS: Based on new information. And we are in the process of
working on that.
THE COURT: Okay.
MR. WEINGLASS: Of course. But you are dealing with a
death penalty case and you are dealing with post-conviction relief. And
you don't file a petition until you have gathered together the
transcripts, the trial record, the outstanding documents, the necessary
witnesses, and you have investigated the case
Page 41.
thoroughly. That takes time. And that's not delay. That's moving ahead
as quickly as you can.
MS. PERKINS: Is it my turn now, Your Honor?
THE COURT: Yes.
MS. PERKINS: First of all, the Commonwealth does not
concede that there was no intentional delay and will not stipulate that
there was no intentional delay. Now, I suppose the reason why Mr.
Weinglass referred to the exhibit, the one exhibit the Commonwealth
referred to or attached as an exhibit, is because he knew exactly what I
was going to refer to. I am referring to the answer to the Defendant's
motion for a stay of execution. On page 12. The Commonwealth, referring to
the June 1st date and the June 5th date which they have discussed, but the
Commonwealth also argued, indeed according to the February 17th, 1995
edition of the Philadelphia Tribune, Defendant's attorney -- Mr. Weinglass
here -- is quoted as having said he admitted that he will file his
paperwork with the Common Pleas
Page 42.
MR. WEINGLASS: Objection, Your Honor. I am not quoted in
that article. Counsel is purposely misstating. If she'll look at that
article which is in front of her, I am not quoted. That is the
journalist's impression. That's very different.
MS. PERKINS: It is a quote from the article, Your Honor.
MR. WEINGLASS: There are a number of quotes from me in that article.
That one that she referred to is not quoted.
MS. PERKINS: Again, Your Honor, without interruption --
MR. WEINGLASS: Will she concede that she misspoke? There is no quote on
that particular item.
MS. PERKINS: Your Honor, it is an excerpt from the
article. I don't know if Mr. Weinglass spoke to these people or not, I
didn't see him talk to them. I am presuming that he did because he has
spoken to everybody else involved in this case in the media, so I have no
reason to believe that he didn't speak to this reporter. But the article
does state, Your
Page 43.
Honor, that he admitted he will file his paperwork with
the Common Pleas Court seeking a new trial for Abu-Jamal only after Ridge
signs his client's death warrant. Now, that's in February of 1995.
Assuming it occurred --
THE COURT: All right.
MS. PERKINS: -- again we are at the issue --
THE COURT: Let's get back, though. As I said before, what
is the purpose of a stay where the Defendant for the first time files a
PCRA petition?
MS. PERKINS: It's whether or not he can litigate those issues before
the stay becomes ripe, Your Honor.
MS. PERKINS: You have a hearing, which is what we have asked for.
THE COURT: But where does he go? You know there is an automatic appeal
to the Supreme Court.
MS. PERKINS: That's exactly right, Your Honor, he has an
automatic appeal to the Supreme Court. If these issues are resolved
Page 44.
before August 17th, and the Court denies a stay, the
Defendant can petition the Supreme Court, as he already has done. I wish
to remind the Court, however, Counsel is saying that this case will end
here if a new trial is granted. I doubt that seriously because the
Commonwealth would have the right to appeal.
THE COURT: I understand that. Anybody would. Go ahead.
MS. PERKINS: Again, the claim that he is asserting now
has nothing to do with the PCRA. The Act is specifically dealing with the
truth-determining process, meaning the trial.
THE COURT: Absolutely. That's why I say I don't know what the Governor
could possibly add.
MS. MIDDLETON: Your Honor, I would just like to say one
thing. Mr. Weinglass has said this warrant was signed out of order. That
is incorrect. There is absolutely no evidence of that.
THE COURT: I don't think for a minute think the Governor
signed anything out of order. These things have been up there for a long
time. Other governors have been here and haven't done
Page 45.
anything about it. The legislature had to change the
statute in order to get things moving. And if he doesn't sign it, the
Department of, the Commissioner of the Department of Corrections will sign
it. Somebody is going to sign it. So I wouldn't worry about that.
All right, the motion to quash the subpoena seeking to
compel the testimony of Governor Thomas J. Ridge; Paul A. Tufano, General
Counsel; and William G. Chadwick, Executive Deputy General Counsel; Syndi
L. Quido, General Deputy Counsel; Timothy Reeves, Press Secretary to
Governor Ridge; and John Taylor, Deputy Press Secretary to Governor Ridge,
the motion to quash is granted. Okay.
Is the Clerk here? Because I don't have the original papers here, I
would like to sign the originals.
Oh. Do you have the original motion to quash the subpoena?
THE COURT CLERK: I will look for it.
THE COURT CLERK: (Handing).
Page 46.
here. Did you file orders?
MS. MIDDLETON: I know we FAX'd them to you.
MS. MIDDLETON: I believe the original with an order was
also filed. But I know we FAX'd the order to chambers.
THE COURT: Yes, you did FAX me. But I am talking about
the original with the orders. You don't have the originals? You don't have
them here?
THE COURT CLERK: There is a lot of papers in this file.
THE COURT: Well, I had orders attached to mine. Which I
will sign and make part of the record. And we will send everybody
copies.
Oh, Gina. Do you have her FAX number?
MS. FURIA: Yes.
THE COURT: All right, we will FAX it to you.
MS. MIDDLETON: Thank you, Your Honor.
MR. MELINSON: Thank you, Your Honor.
MS. WOLKENSTEIN: Your Honor, all
Page 47.
right, two preliminary matters before we begin with continuation with
testimony.
First of all, Police Officer Gary Bell was served a
subpoena on Friday afternoon by Petitioner and I want to note that he is
in the Court. Pursuant to the sequestration order for subpoenaed
witnesses, I would ask for him to be --
MS. WOLKENSTEIN: Gary Bell, Police Officer Gary Bell. He
should be ordered to leave the Courtroom and not return until he appears
as a witness.
MR. WEINGLASS: No, I am talking about Gary Bell, Police Officer Gary
Bell.
THE COURT: I don't have him on your list.
MR. WEINGLASS: He is not a witness, Your Honor, today. He
is subpoenaed and he is sitting here in the Courtroom and he is not
supposed to be because he is a subpoenaed witness. All subpoenaed
witnesses have been instructed that they are not to be in the Courtroom
until after they have testified.
Page 48.
MS. WOLKENSTEIN: Yes, he is in the Courtroom.
MR. GRANT: Yes, Your Honor. You see, the problem is
Counsel would like to subpoena me so I can't enter this Courtroom. You
can't use and abuse the process of the Court merely for your own purposes.
Now, Gary Bell was the police officer who testified and was a partner of
Police Officer Faulkner on the night that he died. They had been separated
for physical reasons to separate patrols but he was there in the hospital.
Now, he is not an affiant with respect to their PCRA. They have given us
no notice as to what purpose he is here for. There's been no offer of
proof.
MS. WOLKENSTEIN: Gary Bell --
MR. GRANT: Excuse me.
MS. WOLKENSTEIN: I could give you the reason.
MR. GRANT: I don't want to hear your reason.
MS. WOLKENSTEIN: You just said --
MR. GRANT: I don't want to hear your
Page 49.
reason while I am talking.
THE COURT: Let me hear what he has to say. I will let you talk.
Go ahead.
MR. GRANT: So for the sole purpose and expedient of
removing Mr. Bell from the Courtroom they serve him a subpoena, then they
ask Your Honor to roust him from the room. And not even entertaining a
motion to quash that subpoena, which is what I am doing at this point in
time. Unless there is sufficient relevance and materiality to any
testimony he may offer, and further, that it is in support of the PCRA
Petition, I would ask Your Honor to quash that as well.
There are a number of subpoenas floating around, one of
which is for Judge Ribner. They are subpoenaing everybody in the world,
none of which have they alleged are witnesses in their PCRA. And I think
they are abusing the Court's process. And at some point in time I am going
to ask Your Honor to take some sanctions because I think this is becoming
harassment, intimidation, nothing more or nothing less.
Page 50.
MS. WOLKENSTEIN: If there is a specific objection to
specific subpoenas I suggest the District Attorney bring a motion to quash
on each one as they come up.
THE COURT: Well..
MS. WOLKENSTEIN: As to Gary Bell, Gary Bell is a police
officer who, as far as we are concerned, fabricated a confession allegedly
made by Mr. Jamal in the hospital. We have said that in our papers, we
have said that repeatedly.
We have subpoenaed Police Officer Gary Wakshul, who we
believe absolutely rebuts and makes very clear that Mr. Jamal made no
so-called statement, confessions that night. Gary Bell is the police
officer who filed no reports, no police logs, no investigative reports
which gave any indication whatsoever that Mr. Jamal made any so-called
statements or confessions on the night of December 9th.
Two months later, in the course of proceeding into the
allegations made by Mr. Jamal that he was beaten, Gary Bell comes forward
and says oops I forgot, I forgot to mention the fact that Mr. Jamal made
a
Page 51.
confession that night of December 9th. We believe that
confession was fabricated. I can imagine almost no issue which is more
relevant to this hearing than the question of fabrication of evidence by a
police officer under the direction and control, as a legal matter, of the
District Attorney's Office. This is highly relevant. Highly material.
And Mr. Bell is subpoenaed as a witness in this
proceeding. So I would ask that he be requested to leave the Courtroom
until such time as defense Petitioner calls him as a witness.
MR. GRANT: If it were highly relevant and highly
material, it was highly litigated in this Courtroom 13 years ago. He was
cross-examined on that 13 years ago by competent Counsel. The Supreme
Court, as a matter of direct primary appeal, litigated the sufficiency of
the evidence, and affirmed Mr. Jamal's conviction. And Mr. Bell's
testimony took place at that time. So, at least, Counsel is trying to
re-litigate issues and claims that have already been raised and been
decided on by the highest reviewing authority in this State.
Page 52.
Moreover, he is not part of their PCRA Petition. And I move to strike
and quash that subpoena.
MS. WOLKENSTEIN: The issue here is the fundamental
question of due process and fairness. It is a question of Brady versus
Maryland. The fact that Mr. Bell, obviously, as a working police officer
that night, filled out patrol logs, filled out reports in the course of
doing his duty. Those records, which I believe absolutely show no evidence
of any statements being made by Mr. Jamal, were not turned over to the
defense as they should have been under the requirements of Brady versus
Maryland.
MR. GRANT: I would ask Your Honor to rule.
THE COURT: Well, I am not going to evict him at this
time. I don't think that there is anything that is coming out now that
would in any way affect his testimony one iota. He has already testified
at the trial itself.
MS. WOLKENSTEIN: Your Honor, we had a Mrs. Lydia Wallace
and Representative Richardson testify. After they testified they were
excluded from the Courtroom that day.
Page 53.
THE COURT: I didn't exclude anybody from the Courtroom.
MS. WOLKENSTEIN: Your Honor, they were told that they could not come
back into this Courtroom after that.
MR. GRANT: Just a minute, Judge.
MS. WOLKENSTEIN: Let me finish.
MR. GRANT: Very well.
MS. WOLKENSTEIN: Until the next day when there was a
whole inquiry with Counsel as to whether or not they were going to be
called again as a witness were they allowed into the Courtroom. I believe
again there is a question of bias towards the prosecution, prejudice
against the defense, and unequal treatment from top to bottom.
THE COURT: That's what you say. Those are words that come out very
easily but with no basis for it.
MR. GRANT: Mr. Weinglass could speak to this issue in
contravention of what Miss Wolkenstein says. The Sheriffs said there is a
lady named Ruth Ballard and Miss Lydia Wallace who would like to come back
into the room.
Page 54.
There is a sequestration order in effect. You asked for
sequestration, meaning me. I said but they are witnesses as to the
Defendant's character and they are relatives, or their neighbors, I don't
think they are going to testify again, let me ask Mr. Weinglass. I went
and I asked Mr. Weinglass. He said no, that's the extent of their
testimony. I said well, I have no objection if they come back in. And now
I hear this turned around and I'm being accused of keeping people out of a
Courtroom. I don't know --
MS. WOLKENSTEIN: The point of fact is we have a witness
under subpoena, we have a sequestration order which says that no witness
is to be in this Courtroom prior to their completion of testifying.
THE COURT: Well, I think, I told you I wanted to have a
list of who you are going to call. I didn't see the list.
MS. WOLKENSTEIN: We prepared a list on a day-to-day basis.
THE COURT: If you want to do it on a day-to-day basis I rule on it on a
day-to-day basis.
Page 55.
MS. WOLKENSTEIN: Your Honor is denying the sequestration
order and asking Police Officer Bell to leave the Courtroom?
MR. GRANT: I am asking Your Honor to quash it unless they
should show relevance and materiality in support of their PCRA that hasn't
already been litigated. And it has, it has no relevance, it has no
materiality. And I am saying not just to not ask him to leave the room, I
am asking him to quash the subpoena process.
THE COURT: At the present time I will quash the subpoena.
MR. WEINGLASS: I object to that.
THE COURT: Okay, your objection is overruled and you are
given an exception. But the thing is, if you are going to subpoena him in
the future, please attach an affidavit to it so we know exactly what the
issue is with him, so the District Attorney could be alerted.
MS. WOLKENSTEIN: Your Honor, there is another matter
here. I wanted to present to the Court a copy of a letter I sent to
Sheriff John D. Green this morning. Also I want to give the District
Attorney's Office a copy of said letter
Page 56.
(handing). And bring this matter to the Court's
attention. I think the Court recalls that a few days ago I requested that
all participants, all observers in the Courtroom be treated equally as
they came into the Courtroom. And that included going through metal
detectors. The purpose of that was to insure that no one, one of the
purposes was no one was being treated differently. And that anyone who was
carrying weapons would in fact not be allowed to bring their weapons into
the Courtroom.
THE COURT: If you remember, if you remember, I said that didn't apply
to police officers.
MS. WOLKENSTEIN: No, I don't recall you saying that.
THE COURT: Yes, I did that the other day, last week.
MS. WOLKENSTEIN: I don't recall you saying that. In any event --
THE COURT: Counselor, they are in here for my protection, okay.
MS. WOLKENSTEIN: I am not talking, Your Honor, about
people who are part of the Sheriff's Office and are on duty. I am
talking
Page 57.
about police officers.
THE COURT: I am talking about any police officer that is
in here is authorized to carry a gun, as far as I am concerned, 24 hours a
day.
MS. WOLKENSTEIN: Your Honor, my --
THE COURT: And he is here for my protection.
MS. WOLKENSTEIN: Your Honor, an off-duty police officer,
in our opinion, should be treated the same as any other citizen who comes
into this Courtroom.
THE COURT: No, no, it's all together different.
MS. WOLKENSTEIN: And we are requesting, have made the request --
THE COURT: All together different. I consider the police
officers for my protection in this Courtroom. I will make the decision who
can carry a gun in this Courtroom and who can't.
MS. WOLKENSTEIN: Your Honor, there are people attending
this Courtroom getting designated seats as representatives of the
Fraternal Order of Police as part of a contingency of people who have a
position in
Page 58.
opposition to Petitioner Jamal.
MS. WOLKENSTEIN: Some of these people I understand are
police officers. They come into this Courtroom as spectators, as members
of the public. They are off duty. We are requesting of the Sheriff's
Department that those police officers be treated the same as any other
citizen and they not be allowed to come into the Courtroom carrying their
weapons. We believe that this situation is not, is a violation of security
and dangerous to Mr. Jamal. We believe --
MS. WOLKENSTEIN: A form of intimidation to the other
people who are in this Courtroom who are supporters of Mr. Jamal. And we
believe, then, in a highly charged and emotional situation, this is
potentially volatile and dangerous.
I further represent that this is a very important issue
because the Chief of the Fraternal Order of Police has made many
representations, including in the past few
Page 59.
weeks, publicly that Mr. Jamal's supporters, including
his attorneys, are a bunch of terrorists. And with that as their attitude
and that as their position, I believe that speaks to the fact that the
Fraternal Order of Police does not believe that people have the
Constitutional right and ability to, to take a stand in support of Mr.
Jamal. That indicates a state of mind that I believe is highly dangerous
and a provocation in this Courtroom during these proceedings. So the
request has been made of Sheriff Green to establish and set forth security
procedures that make it clear that off-duty police officers who are
attending this Courtroom as spectators be treated like any other member of
the public, which is they do not bring their weapons inside this
Courtroom.
MR. GRANT: I don't know if this exercise of polemics,
Judge, is a filibuster to avoid proceeding with more evidence in this
case. But in any event, under Police Department guidelines, every active
police officer, whether on duty or off, as a peace officer, must carry his
weapon. Now, I don't know if Sheriff Green has the authority to disarm
these individuals,
Page 60.
but I would tend to doubt it.
In any event, I think this is a lot of rhetoric and I
would like to proceed with the proceedings if we may.
THE COURT: Let me say this: I decide the procedure of
what is going to happen in this Courtroom. I make that decision. And I
told you last week that the police officers are entitled to carry their
gun in this Courtroom. All right.
MR. GRANT: No, Your Honor.
THE COURT: I understand that they wanted to call Mr. Jackson.
MR. GRANT: Mr. Gelb, Mr. Gelb is supposed to be coming
this morning and Mr. Jackson at one o'clock, as I understand.
MR. WEINGLASS: No.
THE COURT: He said they were changing that now.
MR. GRANT: I am glad they let me know these things.
MR. WEINGLASS: Yes.
Page 61.
MR. WEINGLASS: I spoke to Mr. Jackson when he got off the
stand Friday and indicated that perhaps it would be better if he started
Monday morning so that there would be continuity. He said he would come
Monday morning.
MR. WEINGLASS: He called this morning. I spoke to him on the Court's
telephone.
MR. WEINGLASS: At 9:30 he said he would be here at 10:30.
MR. GRANT: They have no witness, what they are saying is they have no
witness.
THE COURT: Wait awhile. It is 1l:00 o'clock. Is he here?
MR. WEINGLASS: Pardon?
MR. WEINGLASS: No, I don't know.
THE COURT: Is Mr. Jackson here?
THE COURT OFFICER: I have not seen him, Your Honor, but I will
check.
THE COURT: Check it again, if he is here we will take him.
Page 62.
MR. GRANT: I would like to make a request.
MR. WEINGLASS: If he is not here we have another witness.
THE COURT: Okay.
MR. GRANT: Counsel knew, Counsel knew that he was going
to change the order after he advised me what the order was going to be. He
advised you as to the change.
THE COURT: I know, one o'clock.
MR. GRANT: I am kind of getting a little tired of this
gamesmanship and I think we are here to try the case or to litigate the
issues. If Counsel doesn't want to obey the protocol of the legal
profession, at least he could give some notice that we are having a trial
by ambush so we could both participate.
THE COURT: Yes, when I left on Friday I was convinced that he was going
to be here at one o'clock.
He is not here. Well, I think he is not here.
MR. WEINGLASS: Well, the Court is again jumping to a conclusion.
THE COURT: I have somebody checking.
Page 63.
Why didn't you tell the D.A. you were going to call him?
MR. WEINGLASS: Your Honor, I don't want to quarrel with
Mr. Grant. I spoke to Mr. Jackson right here in the well of the Court. It
was my impression -- and I have no way of knowing if Mr. Grant heard it; I
assumed he did but apparently he did not -- I apologize for that -- I
thought this was an understanding with all Counsel. If Mr. Grant didn't
hear it I'm sorry.
THE COURT: I didn't hear it because when I left on Friday I was
convinced that he was going to be here at one o'clock.
MR. WEINGLASS: You had already left.
THE COURT OFFICER: He is not here, Your Honor.
THE COURT: He is not here. Okay, what will we do in the meantime?
MR. GRANT: Okay, the Commonwealth could bring some witnesses if you
have none. Have you any?
MR. WEINGLASS: We have, sure. We will call Peggy Garvin.
Page 64.
THE COURT: You are not taking them in the order you have on this
sheet.
MR. WEINGLASS: Pardon?
MR. GRANT: May we have an offer of proof as to this person?
MR. GRANT: Of course not.
THE COURT: Why don't you tell somebody. Come on. Why do you do
this?
MR. WEINGLASS: I can't help Counsel if he is not familiar
with the record. We provided 10 days ago a series of exhibits appended to
the findings of fact which included, I believe, reference to Peggy Garvin.
The fact that she is a Court administrator in charge of the trial notes,
and that she has indicated that four days of pre-trial hearing notes are
missing. And we are calling her to establish the fact that notes
pertaining to Mr. Jamal's pre-trial hearings are missing and not
available. This morning, after I came to Court, I was informed that they
have just, just now,
Page 65.
found three of those four hearings. One is still missing.
And so as we stand here on August lst, 1955, the Court reporters are still
in the process of assembling the record in this case. And I want to call
Miss Garvin to establish that fact. It's very simple.
THE COURT: Well, we don't need her. If that's what is happening,
fine.
MR. GRANT: Plus Counsel misrepresents, as usual, the
truth of the matter. I have received nothing with Miss Garvin's name on it
and I suggest to Your Honor if you required of Mr. Weinglass what document
he refers to, it will probably be dated this morning, which we have not
received. I move to preclude this witness and any other witness from now
on that he hasn't given us notice of.
THE COURT: All right, we will exclude her at the present time.
MR. GRANT: May I have the Court's indulgence for one moment?
THE COURT: When you get the notes let us all know.
Page 66.
MR. WEINGLASS: Is the Court precluding us from calling to
the stand the Court reporter administrator in the Common Pleas Court of
Philadelphia for the purpose of establishing that the full record in Mr.
Jamal's case is not yet completed?
THE COURT: At this time, yes. Because you told me that
they are getting three of the dates completed. So let's wait and see what
it's all about.
MR. WEINGLASS: Yes.
THE COURT: I want to see whether it has any materiality as far as this
PCRA matter is concerned.
MR. WEINGLASS: But I think it is important for the record
to indicate, in light of the charges made by the Commonwealth, that the
record in Mr. Jamal's case was not completed and is still not completed as
of August lst, 1995.
THE COURT: Well, but see, these are records that are
preliminary matters that may not really be relevant in any way. But if
they could get them together, fine. They will get them together when they
get them together. All
Page 67.
I am saying: At the present time we don't need her to testify to
that.
MS. PERKINS: Your Honor, it is a little amazing to me
that now these three documents have surfaced when I believe we had Mr.
Weinglass' representations a week or two ago that he had exhausted every
effort to find them. And now they are, they can be retrieved. So.
THE COURT: Well, let's wait until they retrieve them and
transcribe them, let's see what they say. Let's see whether they have any
bearing on this PCRA matter.
MR. WEINGLASS: Yes. Counsel is right: I didn't know that I had them
until this morning.
THE COURT: Okay. So calling her to tell me that they are
going to look for them, I don't need that. If you say to me that the three
of them have been found, and they are going to transcribe them, that's
good enough.
MR. WEINGLASS: I don't, I have to look through them because I don't
know which one is still missing.
THE COURT: Okay, we will find out when you get the three. We will see
what's
Page 68.
missing.
MR. GRANT: Your Honor, I would like Your Honor to know
that -- and I invite Your Honor's attention to the series of events this
morning -- Counsel engaged in what appeared to have been a rhetorical
diatribe, filibuster, extensive rhetoric. And I was curious as to why this
was going on and why the issue just wasn't presented and dismissed or
disposed of with a ruling. And now I understand they were supposed to have
Jeremy Gelb here this morning, they knew that present he was not. They
changed the order of witnesses and they were supposed to have Mr. Jackson
here instead, and lo and behold he is not. So they try to hurry down a
Court administrator to fill in the gap because they have no witnesses,
knowing the relevance and materiality of that was remote at best. So now
we are faced with the prospect of them asking for a continuance until the
afternoon. And what they are trying to do is to not have these claims
litigated. And as it gets closer to the date proposed for the execution of
Mr. Jamal, they will say whoops, see, we have to ask for a stay now
Judge.
Page 69.
And therefore, I am asking Your Honor at each instance
where this occurs to allow the Commonwealth to reverse bifurcate the
proceedings and we will put on evidence to meet whatever burden that
exists on the Commonwealth after the presentation of their claims. We do
have a witness here this morning. If they would like to have one heard. I
would suggest to Your Honor that it is a waste of everybody's time to sit
here while they decide what they are going to do on a moment-by-moment
basis.
MR. WEINGLASS: We have, Your Honor, the Court attendants will inform
the Court...
THE COURT: Well, we have here, let me see what he said. You see,
Wakshul is available right now.
MR. WEINGLASS: As the Court read into the record on Friday a note.
THE COURT: Yes, he said he would be available until 1:45
p.m. It's now nine minutes after 1l:00. He is available now. Do you want
to call him? We could have him here in no time at all.
MR. WEINGLASS: We have Mr. Gelb on
Page 70.
his way here, he should be here momentarily. We have Mr.
Jackson on his way here. He should be here. Mr. Wakshul informed the Court
that he couldn't come to Court because of a medical condition.
THE COURT: No, no, no, that's not what I read. I read he
will be available on Monday until 1:45 p.m, when I again leave for therapy
and also on Tuesday. So he would be available today to 1:45 and tomorrow
until 1:45. In other words, you have to get him in the morning.
MR. WEINGLASS: If we may have a moment, Your Honor.
MR. GRANT: Your Honor, if I may: They subpoenaed him, if
I am not mistaken, two weeks ago. So they were ready for him to testify
then. And I assume he is under a continuing subpoena. So they are prepared
to present him as a witness. It is just whether or not they choose at this
time to find it convenient.
MR. WEINGLASS: In the ordinary course of things, when the witness is
called to the stand and cross-examined for a day-and-a-half,
Page 71.
and then is asked to do redirect, it would appear that
the Court would be interested in hearing that witness in the regular order
--
THE COURT: But the thing is, he said he wouldn't be
available until one o'clock today and I agreed to that. Now you tell me
that you changed it somehow.
MR. WEINGLASS: I did not change it.
THE COURT: I don't know anything about that.
MR. WEINGLASS: I did not change it. And I want the record to be clear
on this.
THE COURT: I want the record to be clear too. When we
left on Friday, I was under the impression he was going to be in at one
o'clock. We were going to take up the motion to quash first thing in the
morning.
MR. WEINGLASS: Right. And I want the record to be clear
on this. Mr. Jackson called this Courtroom and the Court's attendants
asked me to take the call. It was about 9:40 this morning. He said he
would be here at 10:30.
THE COURT: Okay. But what I am saying to you, Counselor, it's 11
minutes after 1l:00 and he's not here.
Page 72.
MR. WEINGLASS: Right.
MR. GRANT: All Counsel is doing --
THE COURT: We have a witness that you could bring in who
you've had on the list for Friday. July, yes, July 27th. Gary Wakshul.
MR. WEINGLASS: No, we indicated the next witness after Mr. Jamal would
be Jeremy Gelb.
THE COURT: Today you gave me that list. This morning I just picked that
up.
MR. WEINGLASS: No, it was discussed on Friday.
THE COURT: No, no, no, no. On Friday the list that I had was Jeremy
Gelb.
MR. WEINGLASS: Right.
THE COURT: Gary Wakshul, Joe McGill and Robert Greer. That's what I had
on Friday.
MR. WEINGLASS: Right. I represent to the Court that Mr.
Gelb will be here within 10 minutes. His office is here in downtown
Philadelphia. He is a practicing attorney. As a courtesy to counsel I had
him on call. He is available, he is on his way, he will be here in 10
minutes. We are dealing with a practicing attorney and I ask the Court to
give him the
Page 73.
opportunity to come here and testify.
MR. GRANT: I would ask, Your Honor, you see what he is
doing is more filibustering. He is trying to buy time, I don't know what
for. I would ask Your Honor to either make Mr. Wakshul come down, who they
subpoenaed for last week to be here and they obviously felt he was ready
to testify, or to allow the Commonwealth to put on it's witnesses. I don't
think we should need to engage in anymore extended rhetorical
conversation.
MR. WEINGLASS: We don't need anymore conversation. Mr. Jackson is here.
We can put him right on now.
MR. GRANT: Fine.
THE COURT: Well, you stalled long enough.
Anthony E. Jackson, Esquire, having been duly
affirmed,
was examined and testified as follows:
- - - - -
REDIRECT EXAMINATION
- - - - -
Page 74.
Anthony Jackson, Esq. - Redirect
BY MR. WEINGLASS:
Q. Good morning, Mr. Jackson.
A. Good morning, Mr. Weinglass.
Q. Mr. Jackson, you testified for approximately 10 hours,
I am sure it seems much longer to you by now, but I just wanted to ask you
some questions on redirect pertaining to the answers you have given in
your cross-examination. Incidentally, have we had an opportunity to
discuss your testimony since you testified on Friday?
A. No, we haven't, sir.
Q. Now, your affidavit was presented to the Court and to
the Commonwealth on June 5th. That's approximately six weeks ago. In the
interim and prior to your testimony last Thursday, which is July 27th,
were you contacted by any representatives of the District Attorney's
Office and asked to be interviewed between June 5th and July 27th?
A. No, sir.
Q. If you had been contacted by representatives of the
District Attorney's Office (indicating) and asked to come in to be
interviewed, would you have gone?
A. Certainly.
Q. As a matter of fact, you would consider among
Page 75.
Anthony Jackson, Esq. - Redirect
persons who are your acquaintances, if not your friends,
the Assistant District Attorney who cross-examined you: Mr. Grant?
A. Yes, I did before he cross-examined me. Yes, sir.
Q. So you would have responded if he had asked you Tony,
I would like to talk to you about this matter that happened 13 years
ago?
A. Yes, I would have, sir.
Q. And so you were asked on Thursday and Friday about
matters that happened 13 years ago, about matters that you hadn't reviewed
previously with the District Attorney; is that correct?
A. That's correct.
Q. Was it your impression as trial Counsel that they were attempting to
put a surprise into your testimony?
MR. GRANT: I would object to Counsel leading his witness. It's clearly
his witness.
THE COURT: I will have to sustain that. Please don't lead your
witness.
BY MR. WEINGLASS:
Q. Now, Mr. Jackson, you were asked a series of questions
by Mr. Grant about your prior experience before being appointed to the
Jamal case in December
Page 76.
Anthony Jackson, Esq. - Redirect
of 1981; do you recall that?
A. Yes, sir.
Q. And in the seven years since you graduated law school
and were admitted in 1974, and the time that you started the defense of
Mr. Jamal, as I understand your answers to Mr. Grant, you worked for the
District Attorney's Office for a brief period of time, for a Federal
monitor, and for a public interest office; is that correct?
A. Yes, sir.
Q. And in those seven years when you held those positions, do you
recall how many death penalty hearings you were involved in?
A. One as co-counsel and I believe -- excuse me -- two others as
counsel.
Q. Incidentally, it would be correct to say, would it
not, that in your last three years when you worked with the public
interest office full-time as the director, you were not doing death
penalty cases in those three years prior to '81?
A. Well, actually, I think I did one or two because I was
appointed to those cases before I began at the public defender's office. I
don't recall specifically but I assume one or two.
Q. You haven't had occasion to check a calendar?
Page 77.
Anthony Jackson, Esq. - Redirect
A. No.
Q. Going back to 1978?
A. I certainly have not, sir.
MR. GRANT: Your Honor, if Counsel asked the question he
doesn't know the answer to, and he gets the answer he doesn't want to
hear, I would ask that Your Honor not allow him to lead and make
gratuitous comments to the witness.
THE COURT: Please, no leading. He is your witness now, come on.
BY MR. WEINGLASS:
Q. Now, in your recollection, in those cases that went to
a penalty phase hearing, do you recall if you put witnesses on in the
penalty phase other than the defendant?
(Pause.)
A. Well, first of all, the one, the case I was acting as
co-counsel, I, I was not in the decision-making position so that case I
won't decide. The... other case, again, as I said I believe on
cross-examination, before Judge Sabo, I don't recall whether that was
before Mr. Jamal's case or after Mr. Jamal's case.
And a third case... I believe I put on
Page 78.
Anthony Jackson, Esq. - Redirect
evidence other than the defendant.
Q. Do you recall the name of that case?
A. No, sir, I sure don't. I don't, I don't remember. I
remember the name of the case I was co-counsel; I don't remember the case,
those two cases where I was, where I was counsel.
Q. So that would be a total of three?
A. Yes, maximum.
Q. Including one where you were co-counsel?
A. That's correct, sir.
Q. And are you sure these are all prior to 1982?
A. I'm sure of two. As I say, the one before Judge Sabo,
I just don't recall whether or not that was before or after Mr. Jamal's
case.
Q. And in any of those cases which involved the penalty
phase, do you know if the defendant had a prior criminal record?
A. Yes. There was one -- umm... I'm trying to think if...
co-counsel case, the defendant had a prior record. The case before Judge
Sabo, the defendant had a prior record. The other matter, I believe it was
before Judge Latrone... I don't... I don't remember. I just don't.
Q. To your recollection, was Mr. Jamal's case the first case that went
to the penalty phase hearing
Page 79.
Anthony Jackson, Esq. - Redirect
where the Defendant had no prior criminal record?
A. Other than the one that I don't recall, he would have been the only
one.
Q. And to your recollection, was Mr. Jamal's case the
first case that went to a penalty phase where the Defendant had a
professional background?
A. First one, sir.
Q. And do your recall, was this the first case that you
had tried that went to a penalty phase where the Defendant was the
president of a professional organization?
A. It's the first one, sir.
Q. And do you recall if this is the first case you
handled where the Defendant went to a penalty phase and the Defendant had
a state legislator from the Commonwealth of Pennsylvania who testified at
his bail hearing?
A. First one, sir.
Q. Now, you were asked by Mr. Grant on Friday if you had
filed on behalf of Mr. Jamal a complaint against various police for
allegedly abusing Mr. Jamal when he was in the Jefferson Hospital. Do you
recall those questions of you?
A. Yes, sir.
Q. What, Mr. Jackson, if any, was the information
Page 80.
Anthony Jackson, Esq. - Redirect
that was available to you at that time, if you recall it, that led you
to file that complaint?
A. Two matters. Number one, the fact that Mr. Jamal was
shot. Contrary to what the District Attorney and prosecution evidence was
to suggest that it was: He was shot in response to shooting Officer
Faulkner -- my understanding and belief was to the contrary, that there
was no reason for Mr. Jamal to be shot.
The other was that Mr. Jamal was also abused at the scene
and as he was being transported to the hospital. And I believe at the
hospital as well. When I say abused: He was struck, he was pushed, things
of that sort. And that caused me to file a complaint, sir.
Q. Now, you also indicated in response to Mr. Grant that
because you had filed that complaint Mr. Jamal's defense received the
benefit of additional discovery. Do you recall being asked that
question?
A. Yes.
Q. And giving that answer?
A. Yes, sir.
Q. Now looking back at the discovery that that produced,
do you recall having read all the police statements that were given to you
in the regular
Page 81.
Anthony Jackson, Esq. - Redirect
course of discovery?
A. Yes, sir.
Q. And the statements that were given you with respect to
the investigation of the complaint, whether or not anyone in the regular
course of discovery in the criminal matter had indicated in any statement
that Mr. Jamal had ever uttered any statement at the Jefferson Hospital on
the morning of December 9th, 1981?
(Pause.)
A. Mr. Weinglass, sir, I really don't -- excuse me. I
really don't have any specific recall. The sequence of events was that of
course Mr. Jamal was arrested, he had a preliminary hearing, and at the
preliminary hearing there was a statement. And I may have -- because I
know that there was a, a lieutenant or captain Giordano, or something of
that sort. And I think I, I don't believe I got discovery until after the
preliminary hearing. And as I recall, this lieutenant, he testified at the
preliminary hearing. So to answer your question...
Q. Directing your attention to the Jefferson Hospital statement.
A. Yeah... I just don't know, I just don't know when I found out. I
just can't make that distinction
Page 82.
Anthony Jackson, Esq. - Redirect
whether it was when I got the regular discovery or after the abuse
complaint was filed.
Q. Let me ask it the other way. Do you have a
recollection of whether or not the first time you read in a report that
Mr. Jamal had allegedly uttered a statement at the hospital was after the
investigation into your complaint?
(Pause.)
A. Let me answer it this way. I recall after having filed
the complaint I felt -- or I remember hearing all kinds of admissions. And
I felt it was only in response to filing the complaint. Now --
MR. GRANT: Objection. Move to strike what he feels as opposed to what
he knows.
MR. WEINGLASS: Recording his recollection.
MR. GRANT: He is recording his vague remembrances and I move to strike
them.
MR. WEINGLASS: According to his recollection. I think it is
allowed.
THE COURT: It is stricken, what he is assuming.
If you don't remember, fine. But if you can be specific it makes it a
lot easier for the fact-finder.
Page 83.
Anthony Jackson, Esq. - Redirect
THE WITNESS: Your Honor, I am doing the best I can.
THE COURT: I know.
BY MR. WEINGLASS:
Q. Now, in your experience at Pilcop, where you initiated complaints
and suits against the police --
A. Yes, sir.
Q. -- what if anything did you observe as a pattern or
practice that the police would do if someone had initiated a complaint
against the police?
MR. GRANT: Objection: Relevance as to what the pattern
and practice was and it's relevance to what happened in this case,
Judge.
THE COURT: Could you rephrase your question to this case and time.
BY MR. WEINGLASS:
Q. Did you develop as a result of your experience at
Pilcop an understanding of what pattern the police would use to respond if
a complaint was made against the police of abusive treatment?
A. Well, generally speaking, when there were
confrontations between the police -- in some cases, confrontations between
a police and a citizen, oftentimes the citizen would have cover charges.
Cover, you know what the cover charges mean. Those
Page 84.
Anthony Jackson, Esq. - Redirect
charges can be assault on an officer, resisting arrest
and disorderly conduct. The officers would thereby be in a position, well,
the prosecution would thereby be in a position of course to drop those
charges against the individual if the individual would withdraw or refrain
from filing any complaint against the police. Once a complaint was filed,
it tended to reinforce a police officer's posture if possible to prosecute
the case or to continue with the case.
Q. Would you say, therefore, Mr. Jackson, that it was
your impression that if a complaint were filed that that would be
retaliation against the defendant by the police?
MR. GRANT: Could Mr. Weinglass be sworn since he will be testifying
here today.
THE COURT: Please, Counsel, he is your witness, stop leading him.
THE WITNESS: I didn't hear the question.
THE COURT: Okay. Rephrase your question.
BY MR. WEINGLASS:
Q. Did you reach any conclusion based on your work at Pilcop as to what
the police would do by way
Page 85.
Anthony Jackson, Esq. - Redirect
of retaliation if anything, if anything, for a complaint that was
filed?
MR. GRANT: Objection: Relevance, as to what they would do.
THE COURT: I will sustain that objection. Stick to this case.
BY MR. WEINGLASS:
Q. Mr. Jackson, you were --
MR. WEINGLASS: No, Your Honor, I am going into the areas
that were probed on cross on his experience at Pilcop. We heard a lot
about that and I am asking him about his experience, the same as the
District Attorney did on cross.
MR. GRANT: Well, Your Honor, what he is talking about is
he wants to re-litigate that complaint that Mr. Jackson filed, which it is
my understanding was unfounded. He can't found it here today. And so it
doesn't matter what the result of that was. And even though it is
redirect, I didn't go into police retaliation and police intimidation or
any of that. And I object.
BY MR. WEINGLASS:
Okay. I want to show you a document that was
Page 86.
Anthony Jackson, Esq. - Redirect
shown to you by the District Attorney of an interview of
Officer Wakshul that was conducted on December 9th, 1981 (handing). And
direct your attention to the second page where at that time Officer
Wakshul in that interview indicated that the male Negro made no
comments.
A. Yes, sir.
Q. Do you see that?
A. Yes, sir.
Q. And that was a document that you were relying on, right?
A. Yes, sir.
MR. GRANT: Move to strike the answer. And move to object to leading.
Continual leading.
THE COURT: Please remember, he is your witness. You are not supposed to
lead your own witness.
BY MR. WEINGLASS:
Q. I now show you the interview of February llth, 1982
(handing) of the same police officer, Officer Wakshul, and directing your
attention to the third page of that interview (handing).
Does Officer Wakshul there indicate that he claimed that he heard an
utterance by Mr.
Page 87.
Anthony Jackson, Esq. - Redirect
Jamal?
A. Yes, sir.
Q. Now, that second one, on February llth, 1982, that
interview was conducted with Officer Wakshul after you had filed your
complaint against the police; isn't that true?
A. I believe so. Because I believe I filed the complaint in
January.
Q. So the two statements of Officer Wakshul, one where he
said he heard nothing, and the other where he said he heard a so-called
confession, were separated in time by the fact that you had filed a
complaint against the police?
A. That is correct, sir.
Q. Now, you indicated in response to Mr. Grant that you
had some involvement or contribution in a case that was brought by the
Justice Department of the United States against the Philadelphia Police
Department in 1979; is that correct?
A. That's correct, sir.
Q. Do you recall in that complaint brought by the Justice
Department that one of the allegations that the Justice Department made
against the Philadelphia Police Department is that they were intimidating
and threatening witnesses who filed complaints against
Page 88.
Anthony Jackson, Esq. - Redirect
the police for police abuse?
A. Absolutely, yes, I do recall that.
Q. And that was an allegation by the United States Department of
Justice?
A. That is correct, sir.
Q. To your knowledge, had the Department of Justice of the United
States ever made such an allegation against an entire police department of
any city in the United States?
MR. GRANT: Objection: Asked and answered on direct.
MR. WEINGLASS: He could answer: It was gone into on cross.
THE WITNESS: Answer?
THE COURT: Go ahead.
THE WITNESS: It is the first time it had ever been done in the history
of the United States, sir.
BY MR. WEINGLASS:
Q. And you, Mr. Jackson, had contributed information to the Department
of Justice that led to that very lawsuit?
A. Yes, sir, substantially.
Q. Now, you were also asked a series of questions by Mr. Grant about
your work in trial preparation in
Page 89.
Anthony Jackson, Esq. - Redirect
this case. Do you recall that?
A. Yes, sir.
Q. I just want to go over it with you for a moment in
segments. Let's first look at the first four months of your involvement in
the case, from December 15th, 1981 to April 15th, 1982. Those first four
months.
A. Yes, sir.
Q. And this is the period when you're opening your private practice; is
that correct?
A. That is correct, sir.
Q. You're leaving Pilcop?
A. Yes, sir.
Q. You are working, essentially, on your own?
A. That's right.
Q. You had no paralegals?
A. No, sir.
Q. No investigators?
A. No, sir.
Q. You had a part-time secretary?
A. Well, I shared a secretary with another attorney, yes, sir.
Q. And in those four months you conducted a preliminary hearing in this
case?
A. I did.
Page 90.
Anthony Jackson, Esq. - Redirect
Q. You conducted a bail hearing in this case?
A. Yes, sir.
Q. You applied to the Pennsylvania Supreme Court after bail was
denied?
A. Yes, sir.
Q. You prepared and filed a motion for the appointment of an
investigator?
A. Yes, sir.
Q. You prepared and filed a motion for the appointment of a ballistics
expert?
A. Yes, sir.
Q. And you did the same for a photographer?
A. Yes, sir.
Q. You filed a motion to suppress?
A. Yes, sir.
Q. Statements?
A. That is correct.
Q. You filed a motion for a lineup?
A. That's correct, sir.
Q. You filed a motion for the production of a police file: Officer
Faulkner?
A. Yes, sir.
Q. You engaged -- you asked for discovery?
A. That is correct.
Q. And you also handled a number of special
Page 91.
Anthony Jackson, Esq. - Redirect
issues related to Mr. Jamal's physical condition having
been shot and operated on and hospitalized as well as his dietary needs
with a Superintendent Owens?
A. With Superintendent Owens and Judge Ribner, yes, sir.
Q. And the Judge. And you filed a complaint for police abuse?
A. That's correct.
Q. Now, did all of these things that you did in those
first four months occupy most of the time that you committed to this
case?
A. When you say all of those things occupy most -- did I
spend more time doing that than I did the actual trial, is that what you
are saying?
Q. No.
A. I don't --
Q. Did you have any time left over?
A. Oh, had very little time to do very much else.
Q. That's what I am asking. And, Mr. Jackson, this wasn't
your only case, you had other cases you had to look after also?
A. Yes, sir, I was certainly trying to.
Q. You had responsibilities to those cases?
A. Absolutely.
Page 92.
Anthony Jackson, Esq. - Redirect
Q. As a lawyer?
A. Yes, sir.
Q. So after you performed all of these things in the
first four months that we set out which was all necessary for the case
--
A. Right.
Q. -- you had little time for trial preparation?
A. Well, absolutely. In effect, many of these things were
of course to assist me in trial preparation. So actually, well, that's
right, there was very little time to do anything else but to file all of
these motions and to argue the motions themselves.
Q. Now, so on April 29th, 5 weeks before the trial, you
came into Court and you asked Judge Ribner to appoint another lawyer to
help you because you couldn't prepare for the trial in the time that was
left?
A. That's correct, sir.
Q. And Judge Ribner denied you?
A. That's right.
Q. And as your affidavit indicates, you had been asking
throughout February, March and April for more money for your investigator,
and that was denied?
A. That's correct, sir.
Page 93.
Anthony Jackson, Esq. - Redirect
Q. And you were asking for money for pathologists, and that was denied,
other than $150?
A. That's correct, sir.
Q. And for a firearms expert?
A. That's correct, sir.
Q. We are going to come back to those in a minute. But
I'm just trying to set the stage here for what was happening to you as
this case is moving into trial. April 29th we've already covered. Then
within two weeks, on May 13th, Mr. Jamal asked to represent himself; is
that correct?
A. That's correct, sir.
Q And you were asked to be backup Counsel. Is that correct?
A. That's correct, sir.
Q. And you immediately protested that order that you be backup
Counsel?
A. Immediately.
Q. Because as you have told us over and over, you had
never been backup counsel, you didn't know what the responsibilities were
of backup counsel; is that right?
A. That's correct, sir.
Q. Now, you remained backup Counsel from May 13th when Mr. Jamal took
over the case until June 18th,
Page 94.
Anthony Jackson, Esq. - Redirect
when you were directed by both Judge Sabo and the
Pennsylvania Supreme Court to take over the case as Counsel, trial
Counsel?
A. I believe these are the dates.
Q. And is it your testimony that between May 13th and
June 18th, which is the date opening arguments were to be given, you were
serving as backup Counsel?
A. Yes, sir.
Q. So for the five weeks preceding the giving of evidence
in this case, you were backup Counsel from May 13th to June 18th?
A. That is correct.
Q. And it's in that period of time that you have told this Court you
didn't know what your role ought to be?
A. Didn't know what my role was, sir, didn't do anything.
Q. And no one would tell you what your role was?
A. Well, quite the contrary. Everybody told me what my role was.
MR. GRANT: Your Honor, could Mr. Weinglass phrase a
question that isn't leading or isn't testifying? I haven't heard one yet.
I am trying to be fair with the man.
THE COURT: He answered that, he said
Page 95.
Anthony Jackson, Esq. - Redirect
everybody was telling him what his role was.
MR. GRANT: Could Your Honor advise Mr. Weinglass not to ask leading
questions.
THE COURT: I told him not to lead his own witness but evidently he
doesn't pay attention.
BY MR. WEINGLASS:
Q. Did you know yourself what your role was to be?
A. No, sir, I sure did not.
Q. Mr. Jackson, in your way of thinking back then, does backup counsel
plan trial strategy?
A. Certainly not.
Q. In your way of thinking back then, does backup counsel plan trial
tactics?
A. No, sir.
Q. To your way of thinking back then, does backup counsel prepare the
case for trial?
A. No, sir.
Q. And in the last five weeks before evidence was taken in this case
you did none of those things?
A. No, sir. I did not.
Q. In your experience as a trial attorney, are the last
five weeks prior to the taking of testimony a very critical time in terms
of the preparation of
Page 96.
Anthony Jackson, Esq. - Redirect
your case?
A. Unquestionably.
Q. Would it be fair to say that it's the most critical time when an
attorney begins to focus on his case?
A. I would say that's the most critical time, sir.
Q. And during that time you were backup Counsel, and not knowing what
your role ought to be?
A. That is correct, sir.
Q. Incidentally, they have quoted you in Philadelphia
Magazine as saying that you believed it was Mr. Jamal's show. Was it
during that period of time that Mr. Jamal was Counsel and you were backup
Counsel that you believed it was now his show?
A. No, Counsel, I can only answer you the same way that I
answered Mr. Grant. I really don't remember the context of the question
from the Philadelphia Magazine. I don't know if I was talking about while
he was Counsel, whether I was talking about some other aspects of his
affiliation with MOVE. I just don't know the answer, quite frankly. When I
made that response. Assuming I made that response, I don't know what it
refers to.
Q. Now, would it be fair to say, Mr. Jackson --
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Anthony Jackson, Esq. - Redirect
correct me if I am wrong -- that on June the 19th, after you went to
the Pennsylvania Supreme Court --
A. Yes, sir.
Q. -- and after Judge Sabo directed you to proceed, that
at that point you had reacquired control of the case?
MR. GRANT: Objection, and leading.
MR. WEINGLASS: I phrased it if it's his belief.
THE WITNESS: Okay, well, once the Supreme Court, once the
Supreme Court told me I had to remain in the case, then came back to Judge
Sabo and Judge Sabo directed that I then participate, I had no choice. I
had no choice. And when you say reacquired control of the case, well, I
guess because I was then made Counsel, yes, sure.
BY MR. WEINGLASS:
Q. And so would it be fair to say that you reacquired
control of the case on the day that you had to give an opening
statement?
A. That is correct, sir.
Q. Now, you were asked a lot of questions by Mr. Grant on
whether or not Mr. Jamal had at various times ordered you to do things or
directed you to do
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Anthony Jackson, Esq. - Redirect
things or requested that you do things. And I want to ask
you this question about that. Assuming that all of that had occurred, did
that in any way interfere with your ability to call witnesses in the
penalty phase of the case?
A. No, sir.
Q. Did Mr. Jamal ever direct you not to call witnesses in the penalty
phase of the case?
A. No, sir.
Q. Now, the issue came up in cross-examination about the
question of race in the selection of the Jury in this case. Do you recall
Mr. Grant asking you a series of questions about that?
A. Yes, sir.
Q. Did you prior to the questioning of jurors in 1982
request that the Court put on the record the race of the jurors who were
questioned?
A. Yes, sir.
Q. And why, Mr. Jackson, did you do that?
A. Well, it was my understanding of the state of the law
at that point that the only way that an appellate court could review the
argument with regard to discriminating against one race or another is to
have the race of the prospective juror on the record. So I requested the
Court to inquire as to the race of
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Anthony Jackson, Esq. - Redirect
the individual, as opposed to defense Counsel asking the
prospective jurors what race are you, because I thought it might be
offensive to the juror coming from me.
Q. And in the eight or nine days of Jury selection, was
it your understanding that the representative of the Commonwealth in
selecting the Jury used both peremptory and cause challenges in a racial
way against otherwise qualified black venire persons?
A. There is no question about it. The majority of his peremptory
challenges were used against African Americans.
MR. GRANT: I object and that is not the question.
THE WITNESS: I mean --
MR. GRANT: Being the fact it is not the question, the
question is not what the race was, but what the intention of the
prosecutor was. As I remember.
THE WITNESS: Oh --
MR. GRANT: I move to strike his prior answer.
THE COURT: I will strike it. And rephrase your question.
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Anthony Jackson, Esq. - Redirect
THE WITNESS: I don't know what his intention was. I know what the
result was.
MR. GRANT: Thank you.
BY MR. WEINGLASS:
Q. Was it your, having gone through the process with the
representative of the District Attorney's Office, were you left with the
impression that the District Attorney's Office had used racially-motivated
peremptory strikes?
A. Yes. It was my belief and my strong feeling and
impression that in fact the prosecutor had used peremptory challenges to
exclude African Americans from the Jury.
Q. Right. And as a matter of fact, Mr. Jackson, you filed
an affidavit with the Supreme Court of Pennsylvania saying precisely
that?
A. That's correct, sir.
Q. And in that affidavit you noted the 11 persons of
African-American backgrounds who were struck peremptorily by the Assistant
District Attorney?
A. That is correct, sir.
Q. So the issue of racial exclusion in this trial was not
something that came up during the PCRA, it was with this case from day
one?
A. From the first day I was on the case, sir, I
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Anthony Jackson, Esq. - Redirect
brought it up as an issue. I thought it was part of the
case and to the best of my ability I tried to make it an issue that the
Court could deal with.
MR. GRANT: Objection. I believe he said he brought up an
issue of racially-based peremptory challenges from day one.
THE COURT: That's what he said.
MR. GRANT: That's what the question was, and that was his
answer. I want to be clear before we go any further.
THE WITNESS: Okay, obviously, day one we didn't start the
peremptory challenges. Let me back up. I thought race was an issue in the
case from, in the case from day one.
BY MR. WEINGLASS:
Q. And on day one of Jury selection you indicated to the Judge you
wanted the race of the jurors noted?
A. Certainly; that was simply another aspect of the race
issue within the case. It's implicit in the case, there is no way I could
get around it. We have a black Defendant shooting a white police officer.
Contrary to what anyone and everyone might want to believe, race was an
issue.
Q. And you saw the District Attorney eliminating African-American
jurors through the use of peremptory
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Anthony Jackson, Esq. - Redirect
challenges?
A. Yes, sir.
Q. And you called that to the attention of the Pennsylvania Supreme
Court?
A. I did, sir.
Q. Incidentally, Mr. Jackson, to your knowledge as it
existed in 1982, as a criminal law practitioner in Philadelphia, was that
the pattern and practice of the District Attorney's Office of
Philadelphia?
MR. GRANT: Objection.
THE COURT: Sustained.
MR. WEINGLASS: I would like to show you an affidavit, a
copy of an affidavit which was filed with the Pennsylvania Supreme
Court.
Showing Counsel a copy (handing).
And ask you to identify it.
That would be marked as Petitioner's next exhibit.
(Copy of affidavit was marked
Commonwealth Exhibit D-l0
for identification.)
(Pause.)
THE COURT OFFICER: D-10, Your Honor. Do you want to see it, Judge?
THE COURT: No, I don't want to see it.
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Anthony Jackson, Esq. - Redirect
BY MR. WEINGLASS:
Q. Mr. Jackson, would you examine a two-page document
that's been marked P-l0 and indicate whether or not it is a copy of the
affidavit with your signature appearing?
A. Yes, sir.
THE COURT OFFICER: P-10, sir (handing).
(Pause.)
THE WITNESS: This is my affidavit, sir.
BY MR. WEINGLASS:
Q. And it is the affidavit that you were referring to in your last few
questions and answers?
A. That is correct.
Q. Moving on. You were asked questions about the witness
Chobert, Robert Chobert, the cab driver, by Mr. Grant on Friday. Do you
recall being asked questions?
A. Yes, sir.
Q. Now let's examine that witness for a moment.
First, do you recall if you had a statement from a
witness named Veronica Jones who was a prostitute on the corner of 12th
and Locust who said that she saw two men run from the scene to the
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Anthony Jackson, Esq. - Redirect
police?
A. I had a statement from her. I recall that she said one or two men
had run from the scene, I do recall that.
Q. Do you recall if you had a statement from a witness named Dessie
Hightower, who said he saw a man run from the scene?
A. Yes, sir.
Q. Do you recall if you had a statement from a Debbie
Kordansky who said that she saw someone run from the scene but it was
unclear in her statement whether that person had run from the scene before
or after the police had arrived?
A. That is correct, sir.
Q. And lastly, did you have a statement from a fourth
witness, Robert Chobert, who said he saw the shooter and the shooter ran
from the scene 35 steps going east down Locust?
A. I don't entirely remember it. I believe he said the
man was 200 pounds, and height I don't recall. But I always remember him
saying in this statement that he saw a man run from the scene who was the
apparent shooter. And he weighed I believe in excess of 200 pounds. And
the reason I remember that is because I think at the time Mr. Jamal
weighed
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Anthony Jackson, Esq. - Redirect
a hundred and, about 157 pounds, something like that.
Q. So you had in your hands a potential of four witnesses
-- Chobert, Kordansky, Hightower and Veronica Jones -- who told the police
that they had seen someone run from the scene?
A. That's correct, sir.
Q. And the three who identified the direction all had that person
running in the same direction?
A. That's correct, sir.
Q. And was it your belief that Officers Shoemaker and
Forbes, who were the first to arrive on the scene, also wrote a statement
saying that Mr. Jamal was laying on the sidewalk when they arrived moments
after the shooting in a pool of blood?
A. That is correct, sir.
Q. Now, at trial Robert Chobert withdrew his statement
that he saw someone run 35 steps down Locust and said he was mistaken;
isn't that correct?
A. That is correct, sir.
Q. And you wanted to cross-examine him on his change of position?
A. Yes, sir.
Q. And so it would have been helpful for you, would it
not, to have been able to attack his credibility on the basis of his bias
for having been
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Anthony Jackson, Esq. - Redirect
on probation at the time for an arson for hire?
A. Yes, sir.
Q. Do you recall that another witness called by the prosecution...
MR. WEINGLASS: Hold on just a minute, if I may.
(Discussion was held off the record at
this time
between defense Counsel.)
MR. WEINGLASS: We will come back.
BY MR. WEINGLASS:
Q. So you have Mr. Chobert changing his story?
A. That's right.
Q. And you have Veronica Jones doing the same thing?
A. That's right, sir.
Q. So two changed their story, and Debbie, and Debbie Kordansky
wouldn't come to Court?
A. At least not for me, sir.
Q. So you lost three of the four in terms of your ability to project
what they told the police?
A. Yes, sir.
Q. Now let's talk for a moment about Debbie Kordansky.
Because Counsel read to you parts of the record about Debbie
Kordansky.
MR. WEINGLASS: If I may have just a
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Anthony Jackson, Esq. - Redirect
moment.
(Pause.)
BY MR. WEINGLASS:
Q. Now, this is a most peculiar situation. Debbie
Kordansky you spoke to in the, from the Judge's chambers on the Judge's
telephone. Isn't that correct?
A. Yes, sir. During the midst of the trial.
Q. And do you recall her saying this to you?
Page 5, Counsel. June 30th, 1982.
As reported in the record. She said I'm afraid to tell
you what I said because I really don't want to help you. You said I read
the statement to her. And she said I really don't want to help you. And
she says she doesn't like black people. She says I was raped by a black
male about five years ago, and if I could avoid coming into Court I
will.
Do you recall that?
A. Yes, sir.
Q. So you lost Debbie Kordansky as well?
A. Sure did, sir. I would have called her in any event if
I knew where she was. It didn't matter to me if she liked black people or
not, if she was going to make a statement consistent with what she had
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Anthony Jackson, Esq. - Redirect
given the police it certainly would have been beneficial to the
Defendant.
Q. And as you recall her statement, it was unclear, she
had written it out in longhand, and she said that she was watching
television, it was 3:45 in the morning, she heard shots, she got up, she
looked outside, she saw police there, and then she wrote at the bottom of
it I saw a man run from the scene?
A. That is correct, sir.
Q. And you didn't know whether that was before the police arrived or
after but you sure wanted to talk to her?
A. Well, certainly, because certainly there had not been
any others -- her statement about a man running from the scene was
consistent with the statements of the other witnesses. There was no one
else that said that they saw someone run from the scene after the police
arrived. If in fact she saw it then or after that point in time, I
certainly thought it was worthwhile exploring. But it was certainly
consistent with the statement of the other witnesses that the shooter or
someone else at or about the time the shots were fired ran in the same
direction that Miss Kordansky saw this person run. So it seemed consistent
to me, it seemed to confirm
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Anthony Jackson, Esq. - Redirect
the statements of the others that someone ran from the
scene. And obviously it was something significant for the defense to
explore.
Q. Moving on. Officer Gary Wakshul. The officer who did not appear to
testify.
A. Yes, sir.
Q. Mr. Jackson, did you want Officer Wakshul as a witness?
A. Yes, sir.
Q. Did Mr. Jamal want Officer Wakshul as a witness?
A. Yes, sir.
Q. Did the two of you argue at length with the Court,
pleading with the Court for a continuance so that Officer Wakshul could be
brought in?
A. Yes, sir.
Q. As a matter of fact, did Mr. Jamal indicate -- I'm
sorry to get into this -- on the record that he in part blamed you for not
bringing in Officer Wakshul in that heated moment? And I will read from
you the record --
A. I believe he did blame me, sir, yeah.
Q. Do you recall -- page 48, Counsel, July lst, 1982 --
the Defendant: I told him -- meaning you -- at the motion to suppress and
he didn't show up.
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Anthony Jackson, Esq. - Redirect
And then on page 50 of the same day: I told him --
meaning yourself -- about pertinent information. He had the statements for
months. And he can't find the man. The man is on vacation. It's not my
fault, Judge.
Do you recall Mr. Jamal saying that?
A. Yes, sir.
Q. Indicating that at that moment he thought you had the
information and the statements and that he had told you back in June at
the suppression hearing to bring in Wakshul?
A. Yes, sir. I recall him saying that, yes, sir.
Q. Now, you were shown an Exhibit which I think is in
front of you of Mr. Wakshul's interview of February llth, 1982?
A. Yes, sir. It is --
Q. Do you have that in front of you?
A. Yes, I do, sir.
Q. Would you look at the last page, which is page 4, the
very last line. If you can make it out. Where Officer Wakshul tells the
police on February llth, 1982 the reason why he didn't recall Mr. Jamal
allegedly confessing in the hospital was because --
A. I'm sorry.
Q. Yes.
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Anthony Jackson, Esq. - Redirect
A. Yes, sir.
Q. What does he say? Because I didn't attach any importance to it?
A. That's essentially what he says, sir.
Q. Do you think you might have had a field day in front of the Jury
with that comment?
A. It seemed awfully strange to me that it wasn't until
this time that he thought it was significant to tell someone that the
Defendant admitted the crime to him. He didn't think it was important
before that time. I... It boggles my mind that a police officer wouldn't
think an admission was important.
Q. An admission of shooting a fellow police officer is
something that Officer Wakshul claimed in that February 11th interview
that he didn't attach any importance to it?
A. That's what he said, sir.
Q. Is that conceivable?
A. Not in my mind.
MR. GRANT: Move to strike what's conceivable in the mind of another.
Since his mind is not in question.
THE COURT: I will.
BY MR. WEINGLASS:
Q. As a matter of fact, Mr. Jackson, if you had
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Anthony Jackson, Esq. - Redirect
Officer Wakshul saying that kind of thing in front of a
Jury, would that have given you the basis to argue to the Jury that the
police were lying in this case and this is the proof?
A. I think so, sir. I don't think there is any question.
I just couldn't imagine someone believing that the officer was not
attaching any importance to hearing a Defendant admit that he shot a
police officer. And he said he didn't think it was important until later
on. I just -- and I, I just couldn't imagine that all 12 Jurors would
believe that statement. Or any of it, for that matter.
Q. Yes, would it have given you an opening in the case to attack the
whole case?
A. Absolutely.
MR. WEINGLASS: Your Honor, could we break at this point? I'm just about
halfway through.
THE COURT: Any objection to breaking?
MR. GRANT: Yes, I do, Judge. I would just like to get on
with the program. He stalled this morning for an hour and a half.
THE COURT: The Court will just take a two-minute recess.
THE COURT OFFICER: The Court will
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Anthony Jackson, Esq. - Redirect
take a brief recess to the call of the Crier.
- - - - -
(Brief recess.)
- - - - -
MR. WEINGLASS: I am going to try to finish by going quickly.
BY MR. WEINGLASS:
Q. I want to talk briefly about something that Mr. Grant
discussed with you at great length. That is the resources that were
available to you and the funds that were available to you and the experts.
I want to draw your attention to the transcript of June 3rd, 1982, just as
the trial is about to begin, that is Jury selection.
Counsel, page 3.92 on June 3rd.
Did you indicate to the Court on June 3rd the following?
Quote, at this point Mr. Jamal has no funds to pay that investigator. I
have paid that investigator out of my pocket. I have no additional funds
to pay him. He -- meaning Mr. Jamal -- is without any investigator, Your
Honor.
Did you make that statement to Judge Sabo on the record on June
3rd?
A. I did, sir. As I had indicated before, Mr. Greer agreed to accept
the job of investigating
Page 114.
Anthony Jackson, Esq. - Redirect
this case. However, asking him to wait until the Court
paid the money would work a hardship. Notwithstanding the hardship it
worked on me, I was able to provide him some funds in advance of the
conclusion of the case.
Q. And as a matter of fact, directing your attention to
May 23rd, 1983 -- this is one year after the trial had concluded,
approximately, and it was on the motion for a new trial which you had
filed, argued before Judge Sabo -- do you recall Judge Sabo saying --
-- on page 41, Counsel, of the transcript --
-- to you I didn't even see this investigator?
A. Absolutely.
Q. That you put a bill in for?
A. Yes, sir.
Q. He wasn't even in the Courtroom?
A. I think -- well, yes, I recall the Judge saying that, yes, sir.
Q. Now I want to for a moment go over something with you
that I don't completely understand. I want to show you what Counsel has
used, which was the Exhibit that Judge Sabo brought to Court the other
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Anthony Jackson, Esq. - Redirect
day, namely, your petition for fees. And I want to direct
your attention to page 1 of that document, particularly where the amounts
--
MR. WEINGLASS: May I approach, Your Honor?
THE COURT: (Indicating).
MR. WEINGLASS: Thank you.
BY MR. WEINGLASS:
Q. Where the billing amount is indicated for the
investigator, and where the approval amount is indicated for the
investigator. Do you see those two numbers (handing) If I have them
right.
A. Yes, sir. It appears from this that I was reimbursed
$562.50, but only $150 was approved for the investigator.
Q. In other words -- correct me if I am wrong -- and I
don't know these critiques -- is it true that you asked for $562.50, for
an investigator and Judge Sabo would only approve $150?
THE COURT: Counselor, please: If you don't know the
procedure, don't infer that I did anything with this. This was beyond my
jurisdiction. It goes to the President Judge.
THE WITNESS: Yeah, I think in all fairness to the Court, I think the
$150 was
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Anthony Jackson, Esq. - Redirect
approved even prior to Judge Sabo. I think I may have
requested some additional funds from Judge Sabo and was denied.
Why I took, why I took a chance on paying the
investigator more than what's approved, well, I did for whatever
reason.
BY MR. WEINGLASS:
Q. And my question is -- and with all due respect to the Court, I don't
know the procedure --
THE COURT: I know. That's why you should be talking to your home
Counsel.
MR. WEINGLASS: Well, I'm asking the witness.
BY MR. WEINGLASS:
Q. Does that document indicate that the amount that was finally
approved for your investigator was $150?
A. Yes, sir. Prior to, prior to the time $150 was
approved. Or prior to and during the time, as far as I know, from reading
this, $150 was approved.
Q. And you told this Court, Judge Sabo, on June 3rd, as
you are about to go to trial, Mr. Jamal doesn't have an investigator?
A. That's correct. Because I think at that point I may have exhausted
my funds at that time in even
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Anthony Jackson, Esq. - Redirect
paying the investigator.
Q. All right. Now, again talking about May 23rd, 1983 --
Counsel, on page 36 -- in argument for a new trial, did you inform Judge
Sabo, quote, I talked personally to six forensic pathologists. The
cheapest forensic pathologist that I spoke to indicated that there would
be an initial fee of $300 up front before he would do anything else. That
amount did not include any examination, nor did it include any testimony.
For that reason, Your Honor, we are saying simply that by virtue of Mr.
Jamal's being indigent he was denied due process of law. Do you remember
saying that to the Court?
A. Absolutely.
Q. You had talked to six pathologists and not one would take this case
for the $150 that was authorized?
A. That is correct, sir.
Q. Now, there was much discussion with Mr. Grant about the photographer
Bill Peraneau. Do you remember that?
A. Yes, sir.
Q. And whether or not Bill Peraneau had received money from other
people besides yourself?
Page 118.
Anthony Jackson, Esq. - Redirect
A. Yes, sir.
Q. As a matter of fact, do you recall -- page 44,
Counsel, of May 23rd, 1983 -- you engaged in this colloquy with Judge
Sabo?
The Court: How about all the money that was collected for him by his
group.
Mr. Jackson: That was not for any defense purposes that I know of,
sir.
The Court: What was it for then.
Mr. Jackson: Let me beg your pardon. One fee for the photographer was
paid out of that. $300, as I remember.
So you did inform the Court, did you not, back in 1983
that Bill Peraneau had received $300 from a support group?
A. I guess I did, sir, I can't recall at the time.
Q. And that was for, do you know if that was for
photographs that the committee wanted that Bill Peraneau had taken for
your purposes but they wanted copies and they paid Mr. Peraneau for those
copies?
MR. GRANT: I object to leading.
THE COURT: I will have to sustain that. Please, Counselor, stop leading
your witness, will you.
Page 119.
Anthony Jackson, Esq. - Redirect
BY MR. WEINGLASS:
Q. Now, you were questioned about a Philadelphia Inquirer
article by Mr. Grant that appeared on July 23rd, 1995. And he asked you
the question as to whether or not there was a thousand dollars that was
raised and available. And he read part of it but he didn't read this part.
Jackson said he never received any private money raised to help the
defense.
Did you tell the Philadelphia Inquirer that?
A. I'm sure I did, I told everyone. I've never received
any money in my hand, even the money of Bill Peraneau went directly to
him. I never received any funds outside of what the Court gave me from any
source, from anyone at any time.
Q. Now I just want to go back once again briefly and
revisit the questions in a short period of time of your ability to gather
witnesses prior to trial. And I want to call your attention to the
transcript from April 29th, 1982 on the bottom of page 6 where you
informed Judge Ribner of the following. You may recall, Your Honor, that I
had asked in fact for the addresses of several witnesses that the
Commonwealth had interviewed, some of whom we have been able to
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Anthony Jackson, Esq. - Redirect
contact by other means. And I find that notwithstanding
Counsel for the Commonwealth's representation that these witnesses would
not speak to me, that in fact they will speak to me. I'm not suggesting
that Mr. McGill has been sledding me, I don't know. Nevertheless, some of
those witnesses are talking to me. And in fact those witnesses have proven
to be important.
Do you recall informing the Court of that?
A. Yes, I do, sir.
Q. So you didn't have the names and addresses of the witnesses; is that
right?
A. Didn't have the addresses of the witnesses.
Q. I'm sorry?
A. I had the names.
Q. You had the names?
A. Yes, sir.
Q. You didn't have the addresses or the telephone numbers?
A. That's correct.
Q. And there were representations made to you that they didn't want to
speak to you in any event?
A. That's right, Mr. McGill had suggested that the addresses weren't
important because people either
Page 121.
Anthony Jackson, Esq. - Redirect
didn't want to talk to me or they would not be helpful to me.
Q. And you found out the end of April that people did want to talk to
you?
A. That's correct.
Q. I am not saying intentionally mislead but he did mislead your work
on the case?
A. Absolutely. I didn't have the addresses to pursue the
witnesses. Mr. McGill made certain representations again, as I said, that
either witnesses did not want to speak to me or they would not be helpful.
As if to suggest that I didn't need resources in which to find those
witnesses. It just seemed inappropriate of course for the prosecution to
be suggesting or trying to influence what witnesses the defense would
interview. But I think it was part and parcel of the whole scenario of not
being able to obtain or go to the witnesses. And I have said it throughout
my testimony, and my arguments to the Court then and here, just seemed
patently unfair that the Defendant wouldn't have equal access to the
witnesses.
Q. Now, to conclude -- I am cutting this short -- you testified on
Friday that you did the best that you could do. That's true, is it
not?
Page 122.
Anthony Jackson, Esq. - Redirect
A. Yes, sir. I sure did.
Q. But at trial did you have a firearms expert to testify?
A. No, sir.
Q. At trial did you have a pathologist to testify?
A. No, sir.
Q. During the trial did you have an investigator actively involved in
finding witnesses?
A. No, sir.
Q. At the time of trial, during the trial, you had no
opportunity to interview Dessie Hightower, Veronica Jones, or Dr. Colletta
before putting them on the stand?
A. No, sir, I could not interview them before them being on the
stand.
Q. And at trial you were denied the witness Wakshul?
A. That's correct, sir.
Q. And during the five weeks immediately preceding the
taking of testimony, you were in this never-never land of being a backup
Counsel?
A. That's correct, sir.
Q. In other words, Mr. Jackson, is what you are saying that you were
doing is the best you could
Page 123.
Anthony Jackson, Esq. - Redirect
under all those circumstances?
A. Sure, I assume, yes. It was, I did the best that I
could under extremely adverse circumstances. Under the circumstances we
just went over, I did the best that I could under those circumstances. No
money, no investigator, no experts, no prior preparation with the
witnesses. I did the best that I could, sir.
Q. You were in effect like a boxer in a ring with both
arms tied behind your back doing your best to bite your opponent?
A. That's about as close to it as I could characterize it.
MR. WEINGLASS: I have no further questions.
MR. GRANT: I have very brief recross, Your Honor.
THE COURT: Are you going to cross or do you want to break for lunch or
what?
MR. GRANT: I think we could dispose of Mister, we can let Mr. Jackson
go.
THE COURT: Go ahead, then.
MR. GRANT: If I may.
- - - - -
RECROSS-EXAMINATION
- - - - -
Page 124.
Anthony Jackson, Esq. - Recross
BY MR. GRANT:
Q. Mr. Jackson, I am not going to belabor points.
A. That's all right, sir.
Q. I am not going to ask you leading questions. What was
the result of the complaint you filed with the Police Department charging
police misconduct in this case, sir?
A. I think it was unfounded, sir.
Q. You think it was unfounded?
A. Yes.
Q. You know it was unfounded?
A. All right, I know it was unfound -- yes, sir, I know it was
unfounded.
Q. And you know that when you file such complaints that
these complaints are not brought before a jury of 12 or before a bench
trial, they are brought before an administrative board of police personnel
and perhaps sometimes community persons; isn't that so?
A. Not at that time.
Q. So was it brought before a court of law?
A. No, sir.
Q. So if it's not brought in a court of law, and it's brought before
the police review board --
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Anthony Jackson, Esq. - Recross
A. No, sir, it wasn't, there was no police review board at that time,
sir.
Q. Okay. What do you call it, then?
A. The Police Commissioner.
Q. Okay. It was brought before the Police Commissioner.
Is it important then whether or not a person is on vacation? In other
words, does the Police Commissioner have a right to say to the officer who
is in question get in here and answer these questions whether you are on
vacation or not?
A. Sure. I would assume so.
Q. So if a person from the Internal Affairs Bureau
doesn't write what the person's vacation is on the interview they are
taking regarding police misconduct, does that have any relevance
whatsoever as to whether the Commissioner is going to bring him in?
A. As far as I know it doesn't.
Q. You mentioned that Miss Kordansky, who you felt to be
a crucial witness for you, was crucial because she said that after she
heard the shots she looked out her window and she saw someone run from the
crime scene; isn't that right?
A. That's correct, sir.
MR. GRANT: Could I have this marked
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Anthony Jackson, Esq. - Recross
as Commonwealth Exhibit 9 for identification.
(Police interview of Debbie Kordansky was
marked
Commonwealth Exhibit C-9 for identification.)
THE COURT OFFICER: C-9, Your Honor. C-9, sir (handing).
THE WITNESS: Thank you. Yes, I have it.
BY MR. GRANT:
Q. Why don't you read that, sir, into the record?
A. Certainly. I was watching --
Q. Do you recognize what that is?
A. Yeah, this looks like the investigation statement that
was provided to me after the address and things of that sort during
discovery.
Q. And it looks like the original, does it not?
A. I would assume so, yes, it looks like it.
Q. Very well.
A. Okay. This is Debbie Kordansky. She was interviewed
12-9-81 in reference to the shooting of police officer, 1234 Locust
Street. I was watching TV and I heard about five gunshots sometime between
3:45 a.m. and 4:00 a.m. The gunshots seemed to be in succession. I thought
that it was firecrackers. I didn't look out the window at first. I heard
sirens
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Anthony Jackson, Esq. - Recross
a short time later. I saw about 10 squad cars and two vans at 13th and
Locust. I saw a male running on the south side of Locust Street.
Q. Now, does that say I saw somebody run from the crime scene?
A. No, it doesn't say those words.
Q. It could have been somebody running to a phone booth,
into her hotel, running to assist other officers, it doesn't say I saw
someone running from the crime scene, does it, sir?
A. No, you would have to know where the crime scene was.
Q. No, you would have to be able to read English. Look at the statement
and read it again?
A. Sure, I will read it again.
Q. The last line.
A. I saw a male running on the south side of Locust Street.
The south side of Locust Street is where the shooting
occurred. I made what I considered to be a reasonable assumption that he
was running from the crime scene.
Q. Okay. Let's look at that and be practical about it.
A. Okay.
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Anthony Jackson, Esq. - Recross
Q. The crime scene is in the middle of Locust between 12th and
13th?
A. That is correct, sir.
Q. Now, if the person is running south from 13th, they
are going to run right into the dead police officer or the police officers
who are attending him?
A. Well.
Q. Right?
A. No, that isn't true.
Q. Okay.
A. Because you have to assume what, what you want me to
buy into is that she is giving it in succession. It is really not clear.
She simply gave, in my mind she simply stated a number of things that she
saw and heard. Not necessarily in succession. The fact that she saw a male
running on the south side of Locust Street doesn't tell me that she saw
that after the police officers were there. She said she heard the sirens,
she said that she saw the police cars, and she said she saw a man running.
She didn't say one happened first, second and third.
And, Mr. Grant, I don't know: It may be that in fact this
is the succession that she saw it. But what I'm saying is I wanted the
opportunity to talk to her so I could nail it down, because it
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Anthony Jackson, Esq. - Recross
was unclear.
Q. Okay, Mr. Jackson, you said that you were ready,
willing and available to have a conversation with me at any time prior to
your testimony so that we could review your testimony?
A. Yes, sir.
Q. Yes, you did. And what is your office address?
A. 6800 Stenton Avenue.
Q. Where is that published?
A. Where is what?
Q. Where is that published?
A. It is not published, sir.
Q. Oh. What is your office phone number?
A. Ahh, 849-7190.
Q. No, sir, that is a Mt. Airy exchange. Is that your home?
A. Oh, no, I have another number for my home, it is not published.
Q. Where is your phone number published?
A. My home number is not published.
Q. You have no published numbers, do you? Now what am I supposed to be,
a clairvoyant?
A. No, you are a very able Assistant District Attorney, sir, and I am
sure if you wanted to get in
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Anthony Jackson, Esq. - Recross
touch with me you would have found some way to get in touch with
me.
Q. So in other words, you weren't readily available to
anyone except who you wanted to be available to and who knew your personal
numbers; isn't that true?
A. Well, I still say no.
Q. Didn't you get my beeper page? I paged your beeper
number, I never got a response. Did you ever get a beep from the D.A.'s
Office?
MR. WEINGLASS: Objection. Could we have the time? I believe the beeper
was last week.
MR. GRANT: Oh, really, you know about it?
MR. WEINGLASS: Yeah, he told me.
BY MR. GRANT:
Q. Okay, how come you didn't respond to that beeper since
you were so ready, willing and able to come down here and talk to me?
A. Oh, I don't, Mr. Grant -- typically, if I get a number that I am not
familiar with, I may not call it back.
Q. I said --
A. But if you have a voice mail or number, if you
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Anthony Jackson, Esq. - Recross
would have said, ahh, this is Joey Grant, I would have called you.
Q. Oh, most certainly?
A. Sure.
Q. You don't know what a 686' number is, do you?
A. Sure, Mr. Grant, I don't recall. That's the Municipal number.
Q. That is a what?
A. Municipal number.
Q. That is a City number for City employees and City institutions?
A. Yes, sir.
Q. Easily a D.A.'s number also?
A. Yes. Mr. Grant, I assure you, I do not recall
receiving a message from you. If I had gotten the message from you I would
have called you at least and told you that I was busy. At least.
Q. I am sure you would have, sir. Now, you said you had
very little time because of all the things that you were doing for Mr.
Jamal in trial preparation, looking for witnesses, strategy, tactics,
filing numerous motions in the courtroom, et cetera, and therefore you had
no time for anything else?
A. Pretty much so.
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Anthony Jackson, Esq. - Recross
Q. Well, then how did you have time to practice law and
handle these other cases that Mr. Weinglass brought out that you were
handling?
A. Well, as a result of this case, I wasn't able to
handle very many. Some of which I was able to request the assistance of
others to take over. But again, as you recall, I just left Pilcop, so it
isn't that I had a large practice. I mean I was back to private practice.
Well, three weeks prior to going back to private practice is when I got
this case. So it wasn't that I had a tremendous amount of cases. But I had
some.
Q. Yeah. You had this case and this case alone, and you
didn't have any other cases that you were actively pursuing while this
case of your career was being tried -- now admit that, will you?
A. To admit that would be to admit a lie. How was I to
eat? I didn't get paid for a year and a half after this case. I had to eat
somehow. So why would I admit that? No, I had other cases that provided me
with a way of eating everyday and paying my rent, sir.
Q. Okay.
A. So there were other cases, trust me.
Q. Okay, Mr. Jackson, I trust you. By the way,
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Anthony Jackson, Esq. - Recross
you said that Debbie Kordansky, according to you she was
made less than available because the D.A. was misleading you as to what
her willingness to come in and testify was; correct?
A. Well, I made one statement earlier with regard to all
of the Commonwealth's witnesses. And then specifically with regard to
Debbie Kordansky, made that in front of Judge Sabo. I think the earlier
remark was made in front of Judge Ribner with regard to obtaining the
addresses of the witnesses. When I said something to the effect that
notwithstanding the remarks by Mr. McGill that the witnesses either didn't
want to talk to me or would help me, I think I told him at that time that
two or three of the witnesses indeed had talked to me and in fact were
helpful. And I think at that time I was probably talking about Debbie --
Dessie Hightower and perhaps another witness. I'm not really certain. But
then I think later on during the trial, in the midst of trial is when I
specifically referred to Debbie Kordansky who I couldn't get in touch
with.
Q. So you couldn't get in touch with Debbie Kordansky, Dessie
Hightower, Dr. Colletta and Veronica Jones?
A. No, sir, I am not saying, no, no, no, no.
Page 134.
Anthony Jackson, Esq. - Recross
Q. Who couldn't you got in touch with that you wanted to get in touch
with, Mr. Jackson?
A. Everyone -- I couldn't get -- I got in touch with
Dessie Hightower. There was another person, a friend of his who was with
him.
Q. Robert Pigford?
A. Robert Pigford.
Q. Who else?
A. And I think Veronica Jones, and I think, as you
correctly pointed out to me, that I did have her address. I think that was
one of those.
Q. Yes?
A. One of those cases that slipped through the crack, I got her address
on the statement.
Q. One of those peoples' names who slipped your mind who you had her
address?
A. Whichever way you want to characterize it.
Q. No, I want to characterize it the correct way. And you had her
address and it slipped your mind?
A. What slipped my mind?
Q. Her address, your ability to contact her?
A. We did contact her.
Q. That's what I am saying. So that wasn't deprived you by the
Commonwealth, was it?
A. No, that was the only one that the
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Anthony Jackson, Esq. - Recross
Commonwealth provided. She was the only witness that the
Commonwealth provided out of over a hundred witnesses, there was one
witness the Commonwealth provided the address to. Veronica Jones, yes,
sir. I admit that, they were generous.
Q. Okay. Now, Mr. Jackson --
A. Yes, sir.
Q. -- Dessie Hightower, which you say you were deprived
of speaking to him, is that right? Did you get the statement that you paid
your investigator for of Dessie Hightower, and listened to it, I believe
it was tape recorded?
A. Yes, sir.
Q. On page 4 of that statement which was attached as an
exhibit to your affidavit here, at the very bottom, question: Did the
police say they wanted you to testify in this case.
Answer: They just got my statement. And they've been very
cooperative as far as I'm concerned. They haven't been leaning on me. They
haven't tried to force me into saying anything. They can't. I'm only going
to say what I seen.
Does that sound like people are trying to hide this guy from you? Your
own investigator wrote this down.
Page 136.
Anthony Jackson, Esq. - Recross
A. I never said they were trying to hide them from me.
Never said that, never said that at all. I simply said the District
Attorney wouldn't give me his address.
Q. Let me take you to the next interview of your investigator: Robert
Pigford.
A. Yes, sir.
Q. That is also attached as an evidentiary item here,
apparently they have some value to the defense as an exhibit to Mr.
Greer's affidavit. On the last page of that interview, last question: Were
you ever told not to talk to me or anyone else involved with the defense
of Mumia.
Answer: No.
You read that, didn't you?
A. Yes, sir.
Q. Now back to Mr. Hightower. First page of his affidavit. Mr.
Hightower -- this is Mr. Greer, your employee, speaking --
A. Yes, sir.
Q. -- I don't have your statement with me but I have read it. How many
times were you questioned by the police.
Answer; Three times.
Did you ever tell the D.A. that you
Page 137.
Anthony Jackson, Esq. - Recross
did not want to talk to me or anyone else connected with this case.
Answer: I told them I didn't want to give a statement to
Mr. Jackson. His attorney. I didn't say I wouldn't talk to an investigator
or anything like that.
You understand I am working for Mr. Jamal and his attorney.
Yes, you told me that over the phone. I decided what I told them I can
tell you.
Now the man doesn't want to talk to you. Miss Kordansky
doesn't want to talk to you. You said you were able to contact Veronica
Jones. You knew where Cynthia White lived because you had guys walking
around following her, at least, couldn't talk to her. The only person that
leaves is Dr. Colletta. Now, did you have a hard time finding your way
from your offices at Broad Street four blocks to 10th Street where this
large edifice called Jefferson Hospital is?
A. No, sir.
Q. Well, why didn't you walk down there then instead of casting
dispersions on the --
A. I will continue to cast dispersions against the Commonwealth where
they are appropriate. In this
Page 138.
Anthony Jackson, Esq. - Recross
case with regard to the doctor, I believe the doctor
indicated his lawyers or some lawyers suggested that he not talk to me. I
am not really certain. I have some vague --
Q. Some defense lawyers like yourself?
A. No, I think this must have been another breed, I'm not really
certain.
Q. You are not saying they are D.A.'s, though?
A. No, I don't think it was a D.A. It may have been hospital lawyers, I
really don't -- I think in fact it may have been hospital lawyers, Mr.
Grant, with regard to the doctor.
Q. Why does your testimony always change from the 20 minutes it takes
to go from direct to cross, Mr. Jackson?
A. Because the questions are different.
MR. WEINGLASS: Objection to the form of the question.
THE WITNESS: But anyhow --
MR. WEINGLASS: May I have a ruling on my objection? It is
argumentative.
MR. GRANT: I think it is an appropriate question.
MR. WEINGLASS: Counsel's opinion.
THE COURT: Well, I don't know if it
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Anthony Jackson, Esq. - Recross
is an opinion.
Could you answer that question?
MR. WEINGLASS: Your Honor --
THE WITNESS: I will try to answer. Mr. Grant's questions
are always compounded and he asked why they are different. It's because he
asks about four or five questions in one question and I try to respond to
each of them and then when I give one he stops me. But I will try to
answer him because he asked me about each of these different witnesses, he
asked me about four or five witnesses in each question, and the answer to
each one is different and he thinks my answer is changing. It's only
because he has different names and each one requires a different answer.
If he wants an answer for each of them specifically I could give him that.
But he is trying to make the reason for each one of them the same because,
I'm sure it's because he is a great lawyer that he is. But that is not
going to get it with me.
MR. WEINGLASS: Your Honor, may we have a ruling on my objection?
THE COURT: He answered the question already, he said he could answer
it.
Page 140.
Anthony Jackson, Esq. - Recross
MR. WEINGLASS: So the Court overrules --
THE COURT: All he is saying is please give him one question at a time.
That's what he is asking.
Is that right?
THE WITNESS: Yes, sir.
THE COURT: Give him one question at a time.
MR. GRANT: Very well, Your Honor, I will give him one question at a
time.
BY MR. GRANT:
Q. This question is going to be preceded, Mr. Jackson, so you could
follow me --
A. Yes, sir.
Q. -- by reading from the notes of testimony. And it is
talking about race relations. And you are talking to the Court and you are
discussing the phraseology of the questions that are going to be
propounded to the prospective venire persons.
A. Yes, sir.
Q. Because you, because you were a good lawyer then, you had a
questionnaire proposed?
A. Yes, sir.
Q. And it had never been used in a criminal case
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Anthony Jackson, Esq. - Recross
in the history of the City of Philadelphia and the City of Philadelphia
has been around 300 years?
A. That is correct, sir.
Q. And you were one of the first to propose this and to
use it and you even got the Judge to go along with some of the questions
from it, didn't you?
A. Yes, sir.
Q. Was that unusual?
A. Yes, sir.
Q. Was that good lawyering?
A. I understand it was, yes, sir.
Q. Well, listen. June 7th, 1982. Pages 17 through 20. You are
discussing this issue.
Mr. Jackson: Your Honor, if I could at this point with
regard to, quote, what is your race -- which was the question that you
were trying to find how to delicately put to the jurors --
A. Yeah.
Q. -- I agree that this may be obvious, but the record of
course can not reflect what is obvious to the eye. That is the reason for
asking the question. Judge Sabo says, well, you could say, you could in
your question say that.
And you say, we can say, quote, you are of the white race and the
Defendant is of the
Page 142.
Anthony Jackson, Esq. - Recross
black race, for instance. But then again the problem is
you take the chance of offending someone by assuming that there are only
going to be two races and someone considers them self something else. So
then we run the risk, rather than asking them what is your race, we are
going to accuse someone. We would prefer, we would prefer not to run that
risk.
At page 20 the Judge then says, well, in other words, are you going to
be the one that asks the question.
Mr. Jackson says, Mr. Jamal is going to ask that.
The Court: If you want to ask it, go ahead, I'm not going to worry
about that. What else.
Now, when no questions were asked about race, or when
they were intermittently asked about race, you knew it was incumbent upon
you as trial Counsel to ask the question, didn't you?
A. Ahh, well, yeah, I know it was incumbent upon me to
take that, to make that decision to take the risk of asking the question,
yes.
Q. Weren't you just insinuating that it was requested of
the Judge that he ask it, and because it wasn't asked the issue of race
wasn't perfected for appeal?
Page 143.
Anthony Jackson, Esq. - Recross
A. Well, because there --
Q. Yes or no, sir, then you could explain. Yes or no?
A. Okay. Yes.
Q. Weren't you inferring it?
A. Yes, I was.
Q. Explain it?
A. Okay. And the reason I want to explain: Because I
thought if the Judge asked the question it wouldn't offend. It would cut
both ways, towards the prosecution as well as the defense. If I were to
ask the question, and again if I were to ask the question when I was
conducting the voir dire, because of course some of that time Mr. Jamal
was conducting the voir dire, and I think certainly while he was
conducting it, it would be even more offensive for him to ask that
question. And then when I was asking the question, it might in fact be
considered an accusation. And the accusation, the person might respond in
such a way that would hurt Mr. Jamal.
Q. What did you just say?
A. What did I just say?
Q. Yeah.
A. What part of it?
Q. Simple five cent words in 25 words or less,
Page 144.
Anthony Jackson, Esq. - Recross
what are you talking about here? Are you saying yes the
Judge was denying you the right to voir dire these jurors on race, or no
he wasn't?
A. No, he didn't deny me.
Q. Thank you. Yet you were left with the indelible
impression and the strong belief, I think are your words, that the
prosecutor was peremptorily using racially-based strikes; you said that on
direct, didn't you?
A. There was no question about it.
Q. No question. And if there was no question, why is it
that in 4,000 pages of trial record you never once opened your mouth and
made a peep, not even close to a peep, that something like that was
transpiring in front of your face?
A. I don't know that that was true. If it's true, then --
Q. Well, show me in the record where it's not true?
A. Well, I guess if it's true then that is something else
that I failed to do, sir. I am sure I would have done it.
Q. You saw some racially-motivated activity and you
failed to note it because you were an ineffective lawyer; is that what you
are saying?
Page 145.
Anthony Jackson, Esq. - Recross
A. No, I didn't say that; you said that, sir. I am saying
that is something if I noted it and I didn't say anything I certainly
should have said it.
Q. Wasn't Mr. Jamal being the guardian of the racial
issue: Since he was going to ask the question, didn't he tell you to ask
the question?
MR. WEINGLASS: Objection to the form of the question.
MR. GRANT: I will withdraw the question.
BY MR. GRANT:
Q. Didn't Mr. Jamal tell you Counselor, ask the race question now?
A. No, sir. Mr. Jamal, I don't know how many -- I think
he may have interviewed -- I don't know how many prospective jurors,
three, four, I don't know how many he did.
Q. 30? 40?
A. Pardon? Is that how many he interviewed? I don't know.
Q. You were there. I wasn't there.
A. I am telling you, I don't recall how many prospective
jurors he questioned. He conducted the voir dire of a number of jurors.
Then, of course, I, and we have already gone through the issue of when
he
Page 146.
Anthony Jackson, Esq. - Recross
was released of his, yeah, responsibility of being
Counsel and I was lead. He didn't tell me what questions to ask as I
remember. I know you still want to believe that but --
Q. How many black jurors did you strike?
A. One.
Q. And five years later, five years after a month-long
trial, all of a sudden what you couldn't recall while it was happening,
oh, I just remembered racial activity was going on and I think I better
write an affidavit here and send it up to the Supreme Court; is that the
way it happened?
A. No, sir.
MR. WEINGLASS: Objection to the form of the question. May I have a
ruling?
THE COURT: Objection is overruled. There is nothing wrong with the
question. He could answer it.
BY MR. WEINGLASS:
Q. You could answer it.
A. Yeah, the answer is no. And if I could explain.
Q. Well, you could explain to Mr. Weinglass, I don't want it.
THE WITNESS: May I answer, Your
Page 147.
Anthony Jackson, Esq. - Recross
Honor?
MR. WEINGLASS: Objection to the comment by Counsel.
THE WITNESS: I don't need this.
MR. WEINGLASS: Ask it be stricken. Let the record --
MR. GRANT: He said he doesn't have to explain.
THE WITNESS: I don't. I don't.
THE COURT: I could only hear one of you at a time. Rephrase your
question.
MR. GRANT: He doesn't want to explain it, Your Honor.
MR. WEINGLASS: Your Honor, I ask the comment be stricken.
THE COURT: The comment is stricken.
But rephrase your question, whatever it is or whatever you want to
bring out.
BY MR. GRANT:
Q. Now, this recollection of this racism that's pervading
the trial just so happened to come right on the heals of a U.S. Supreme
Court case that had just come down not one-and-a-half years before, 12
months, called Batson versus Kentucky. And it said if
Page 148.
Anthony Jackson, Esq. - Recross
lawyers can say I see racial activity going on, and if
they can justify it based on numbers, then maybe we'll consider granting
you new trials; isn't that pretty much accurate?
A. Yes, sir.
Q. And after you came up with this brainstorm, did you
contact appellate Counsel and say I think I have another issue for
you?
A. I don't know if that was the first -- if I didn't
bring it up in post-trial motions. I don't know whether it was me or
Counsel or Marilyn Gelb who brought it up.
Q. Let's assume you didn't bring it up in post-trial motions -- which
was a year later --
A. Okay.
Q. -- but five years later you brought it up. Now, did
you bring it up to defense Counsel who was doing the appellate brief for
the Defendant?
A. Yeah, that's when it came up. Again, whether it was Marilyn Gelb or
myself that brought it up...
Q. Oh. When you were looking for ways to attack the verdict, this just
happened to pop up five years later?
A. I don't think it just happened to pop up. Listen, if, if, seems to
me if this was ever in the
Page 149.
Anthony Jackson, Esq. - Recross
trial, whether it was by me, the prosecutor or the Judge,
I think it would be incumbent upon his appellate Counsel to bring it up.
And if there was an error with regard to the selection of the Jury, it is
incumbent upon everyone to bring it to the Court's attention if we are all
supposed to be serving justice.
Q. I agree. Now with respect to Mr. Hightower, Mr.
Hightower, who you felt was to be one of your best witnesses: Do you
recall him saying that the person that he saw running from the scene might
have been a woman?
MR. WEINGLASS: Objection to the comment. The witness never said it was
one of his best witnesses.
THE COURT: Please.
MR. GRANT: I will strike that.
BY MR. GRANT:
Q. Mr. Hightower was a witness put on by you to support the theory that
the actual shooter ran away; correct?
A. At least someone ran away, yeah.
Q. So someone now.
A. The shooter, someone ran away. Who was the person who ran away?
Sure, it could be the shooter,
Page 150.
Anthony Jackson, Esq. - Recross
I don't know.
Q. Was the shooter thought to be a female by all accounts that you were
investigating?
A. According to the police, it was Mr. Jamal who was the male.
THE COURT: Counselor, will you please stop shaking your head no.
MR. WEINGLASS: Your Honor, the witness --
THE COURT: I am watching you now.
MR. WEINGLASS: The witness can not see me. I mean the witness cannot
see me, I am blocked in the line of --
THE WITNESS: I can not.
MR. WEINGLASS: And I object to the impression of the Court.
THE COURT: I object to you nodding your head like this (indicating).
Don't do it anymore. I told you before.
MR. WEINGLASS: I nodded before and after the question. I
cannot see the witness from where I am sitting. The witness cannot see me
either.
THE COURT: I don't know whether he could see you or not.
Page 151.
Anthony Jackson, Esq. - Recross
MR. WEINGLASS: The witness is nodding his head no.
THE COURT: I am asking you please not to do it.
MR. WEINGLASS: Your Honor knows that --
THE COURT: I said please don't do that.
MR. WEINGLASS: There was no signaling of the witness.
THE COURT: Counselor, will you please not do that. All right. Now let's
cut it out.
MR. WEINGLASS: Well, the Court's implication is --
THE COURT: I said don't do it anymore and that's it. Now sit down,
please.
BY MR. GRANT:
Q. Mr. Hightower states in response to a question: Now
with reference to this individual you say you saw running, the one I
believe you said you were unsure, and correct me if I am wrong, from what
your testimony was you are unsure whether or not that was a male or it
could even been a female, that's what you said.
A. Yes.
Page 152.
Anthony Jackson, Esq. - Recross
Q. All you saw was the back of the head.
A. Yes. And the sweater.
Q. Now, this witness is the same witness who said they
didn't want to talk to you or anybody involved in your case until sometime
later when your investigator finally came to them; correct?
A. No, that isn't true. You see, that's what I am saying:
Compound question. You said this witness didn't want to talk to me or
anyone involved in the case until sometime later on. Some of that is
right, some of that is incorrect.
Q. I just read to you what he said. When he said I don't want to talk
to Mr. Jackson?
A. That's me. He didn't say anybody else connected to the case. You
see, you added that.
Q. The record will reflect what the affidavit states.
A. Yes, sir.
Q. Now getting along: Mr. Chobert said he saw the shooter
run 35 feet. Point to somewhere in the Courtroom that is 35 feet from
where you are?
A. Oh, 35 feet might be beyond, beyond the Bar of the Court
(indicating).
Q. Right, so he saw somebody after the shooting run about this far
(indicating)?
Page 153.
Anthony Jackson, Esq. - Recross
MR. WEINGLASS: Your Honor, I object to this form of
questioning. Counsel is misstating the record. Mr. Chobert, if Counsel
will read the statement --
THE COURT: Councelor, please.
MR. WEINGLASS: -- said he saw the witness run 35 steps.
THE COURT: I don't want you to discuss it. If you want to
discuss it I will take you where the witness can't hear our discussion. If
you just want to make an objection I will rule on the objection.
MR. WEINGLASS: Objection: Misstates the record.
THE COURT: Okay.
MR. GRANT: I will withdraw the question, I don't want to misstate the
record.
BY MR. GRANT:
Q. With respect to the money that you had, sir, on
6-3-82, page 3.91 -- and I am glad that Counsel brought this out, this
very area -- I am going to follow that up first or proceed that first,
however, by reading what Judge Ribner said you could do if you wanted more
money. I am referring to the notes of testimony of January 20th, 1982.
Judge Ribner,
Page 154.
Anthony Jackson, Esq. - Recross
attorney Jackson present. Page 36 to 41, by Mr. Jackson:
Your Honor may recall that I had also brought to Court, sir, a petition to
employ a ballistician, a petition to employ a pathologist, forensic
pathologist, and petitions to employ an investigator and a
photographer.
Court: That might be proper in this case. All right.
Those are the four petitions that you have. Present those four orders and
I will sign them.
Mr. McGill: As far as the employment of an investigator,
photographer and so forth, forensic pathologist, would there be a dollar
limit on that, sir.
At page 38. The Court: Well, I would follow our policy in
that regard. We will allow the standard initial amounts and if there is
additional work that needs to be done, you can file an itemization with
your fee petition and itemize the statement of what was done and the trial
judge will give that consideration. Generally, you won't run into any
great problem if it's shown that the work was necessary and was relevant
to the proceedings.
Do you recall that, sir?
A. Yes, sir.
Page 155.
Anthony Jackson, Esq. - Recross
Q. And then do you recall on 6-3-82, at page 3.92, you
discussed your investigator resources and you say there hasn't been an
investigator, and Mr. McGill mentioned Robert Greer. Mr. Greer had been
working for quite some time. We had requested the Court to increase the
$150 that we are allowed. The Court has not seen fit to increase that
amount and requested that I submit an itemized bill.
Well, was that so incredible? Why didn't you just submit the itemized
bill for additional amounts of time and money?
A. Because that's done at the conclusion of the case.
Q. Oh. Well, let's go, then, to notes of testimony from
January 20th, 1982, at page 37. At the bottom... I'm sorry, page 41.
Your Honor -- and you are speaking to Judge Ribner now,
who has already told you I am going to give you the money -- Your Honor,
one of the problems, and I am not even sure that Your Honor has the
authority to resolve this problem, I am not sure the forensic pathologist
and the investigator, sir, would want to wait until the case is over and I
file a petition as Your Honor suggests. I'm not sure they will want to
wait that long to be paid. And I am
Page 156.
Anthony Jackson, Esq. - Recross
wondering whether or not there is some provision or might
be some provision for an interim -- meaning in the meantime --
payment?
A. Yeah.
Q. The Court: Well, give me a short memorandum on that
and I will look into it. I am not promising you any definite results but
maybe we will work something out that will enable you to proceed with the
case.
Mr. Jackson: Thank you, sir.
Now, did you file a memorandum or not?
A. I don't...
Q. You don't recall, do you?
A. No, I don't think so. No, I don't think I did.
Q. I don't think you did either, Mr. Jackson. That's why you didn't get
the money, isn't that so?
A. That's not the reason I didn't get the money. Mr.
Grant, Mr. Grant, I begged, I pleaded with the Judges often. And Judge
Ribner, in all due respect, Judge Ribner says yeah, come on, you could ask
for more money. Judge Ribner wasn't going to give me more than $150 for
anything. I could have walked stark naked in that Courtroom, I could have
wrote all kinds of memos: I wasn't getting another penny. I
Page 157.
Anthony Jackson, Esq. - Recross
had a number of things I had to do. One of the things I
didn't need to do was waste time filing frivolous motions. And I knew I
wasn't getting anymore money. I asked the man over and over again. If he
wanted to help me he would have helped me. Why would he need the District
Attorney to ask is he just going to be given $150? Why wouldn't the D.A.
just be silent about it? Let the Court give me the money that it wants to
give me. But I mean I am going back and forth, back and forth. Please give
me some money, more than $150, when $150 is patently unfair. And you say
why didn't I file a motion. I mean there could be have been a million
things I could have done. I know at least based on my sense I wasn't
getting another penny. I had other things to do other than to keep on
filing a motion where he was just going to tell me, as he ultimately said,
go to the trial Judge. That's why I didn't ask him again. I just got tired
of it.
Q. All you had to do was do what he asked you, file an
itemized receipt, but you didn't want to file an itemized receipt as to
what was being done to justify the money being paid, isn't that so?
A. I didn't want to do that because Mr. Jamal would have the assistance
of experts, that's right, I
Page 158.
Anthony Jackson, Esq. - Recross
didn't want him to have that assistance.
Q. When you paid your investigator 562 bucks you got reimbursed from
the Court for that money?
A. Yes, sir.
Q. You got all of the money, even though you were only
entitled based on your itemizing to 150, they still gave you the 560 bucks
anyway, didn't they? Yes or no, sir? Before you go on a tirade, yes or no?
They gave you the money, and you didn't deserve it, but you got it anyway
because the Court gave you the benefit of the doubt, didn't they?
A. What part of that question do you want me to answer?
Q. Did they give you $562 or not?
A. Yes, sir, they gave me that.
Q. Were you entitled to $150 according to this Exhibit here or not?
A. Was I entitled to it or was it approved? 150 was
approved; subsequently an additional amount was approved. I had received
$562. More than, I believe in fact it may have been more than $562 that I
paid out. I think that was the amount that was paid. The problem that I
had with this, with the investigator and every other expert, is that you
file your petition and you don't know what the Court is going
Page 159.
Anthony Jackson, Esq. - Recross
to approve. And again, as you know, in January I started
my practice and this is all during the time I'm trying to represent Mr.
Jamal, didn't have a lot of cases, didn't have a lot of money. Put money
out of my own pocket for these experts.
MR. GRANT: I only have a few more questions, Judge.
THE COURT: That's all right.
BY MR. GRANT:
Q. Mr. Jackson?
A. Yes, sir.
Q. I have never accused you on cross-examination of
illicitly receiving funds raised by groups supporting Mr. Jamal and
pocketing it, have I?
A. No, I don't -- no, sir.
Q. Okay. Just so we got that straight.
A. Oh, yeah.
Q. Mr. Weinglass seems to think so, apparently.
A. Oh.
MR. WEINGLASS: Objection to the comment. Ask it be stricken.
THE COURT: Strike the comments.
MR. GRANT: Move to strike it, Judge.
THE COURT: No comments.
BY MR. GRANT:
Page 160.
Anthony Jackson, Esq. - Recross
Q. You stated you were able to contact some witnesses by
other means and now the witnesses are talking to me. Name the witnesses
you were able to contact without the help of the D.A., sir?
A. Okay, I think at that point it may have been Dessie Hightower.
Q. One.
A. Pigford.
Q. Two.
A. And Veronica Jones.
Q. Three.
A. And let me see if there were --
Q. Cynthia White: You knew where she lived? Your investigator was
talking --
A. You ask one question and say Cynthia White. I had not
talked -- you said the question was I able to contact other witnesses. I
had not contacted Cynthia White.
Q. You were able to?
A. Mr. Grant, you are confused. The question is isn't it
a fact you were able to contact. I had not been able to contact Cynthia
White so she is different. So that is your answer, not mine.
Q. Okay, let me just give you some simple English terms and ask you a
question.
Page 161.
Anthony Jackson, Esq. - Recross
A. That helps.
Q. Able means I have the power, I can, I am able to. Now,
if your investigator is watching her working as a prostitute, what is to
prevent him from having the power to walk up to her and open his
mouth?
A. There may be a reason that I am not aware of, sir.
Q. So don't speculate, then. You had the power to contact her, didn't
you?
A. I am not speculating, sir.
Q. Did you have the power to contact the woman that you
had in your sight and you knew where she was living or not?
A. Yeah, but she wasn't there.
Q. Thank you.
A. Yes, sir.
Q. Mr. Jackson, you will admit, because you are under oath --
A. Yes, sir.
Q. -- that during the course of your testimony on this stand you have
made several, if not many, misstatements of fact which the transcripts
reveal were untrue, would you not agree with me?
MR. WEINGLASS: Objection, Your Honor:
Page 162.
Anthony Jackson, Esq. - Recross
Form of the question. Argumentative. Improper.
THE COURT: I will let him answer it if he can.
MR. WEINGLASS: It includes a comment by Counsel which is not founded in
the record.
THE COURT: He is asking him if he can.
MR. WEINGLASS: Pardon?
THE COURT: He is asking the witness this question.
MR. WEINGLASS: May I have a ruling on my objection?
THE COURT: The objection is overruled.
THE WITNESS: Answer is yes, I have been corrected by you and Mr.
Weinglass on a few occasions.
BY MR. GRANT:
Q. I am not asking you if I corrected you.
A. Oh, I'm sorry.
Q. I am saying did you make misrepresentations while you
were under oath on this witness stand which the transcript that occurred
with words from your mouth 13 years ago showed to be false?
A. The answer is no. I will repeat, what I did
Page 163.
Anthony Jackson, Esq. - Recross
was I -- there were things that you corrected me, Mr. Weinglass
corrected, what I said 13 years as opposed to now.
Q. Well, were these corrections that issued from me or prior to the
correction there was a statement by you?
A. Okay.
Q. Were those statements false or true?
A. I guess they were, they were certainly in error. False seems to
suggest some intention.
Q. Well, just give me a false or true?
A. Well, we are going to get into semantics. They weren't true. They
weren't true.
Q. Were they lies?
A. They weren't true. Lies indicates to me some intentional act,
sir.
Q. Yeah, it does. I am asking you.
A. Okay, you see, you are trying to get me to say I lied.
I didn't say I lied. I don't recall. And whenever I said I don't recall,
you seem to think that I'm lying.
MR. GRANT: Thank you, Mr. Jackson.
THE WITNESS: You're welcome, Mr. Grant.
MR. WEINGLASS: A few questions.
Page 164.
Anthony Jackson, Esq. - Redirect
- - - - -
REDIRECT EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. Mr. Jackson?
A. Yes, sir.
Q. During your questioning by Mr. Grant when he was standing here, were
you able to see me seated at defense table?
A. No, sir.
Q. Was his body blocking your vision of me?
A. It was, sir.
Q. Could you see my head at all?
A. No, sir.
MR. WEINGLASS: May I have an apology from the Court? No.
MR. GRANT: Before you issue an apology --
THE COURT: I said that you were not to do anything like
that. I am not sitting where he is, I don't have any idea. I am looking at
you from where I am sitting and I said I don't want you to be shaking your
head yes or no or anything like that. You did that. I told you you are
wrong.
Page 165.
Anthony Jackson, Esq. - Redirect
MR. GRANT: You may recall last week that I felt free to
ambulate around the Courtroom on cross. However, I am standing here in
this position for a very good reason. And the body movements of Mr.
Weinglass were not lost on me either and that's why I am not over there,
I'm standing over here.
THE COURT: All right. Is that it?
MR. GRANT: That's it.
THE COURT: Anymore questions?
MR. WEINGLASS: Yes.
THE COURT: Oh, this is a second redirect. Okay.
BY MR. WEINGLASS:
Q. Mr. Jackson, the document which is your petition, which is there
--
A. Yes, sir.
Q. -- for payments.
A. It was here. I think Mr. Grant took it back.
MR. WEINGLASS: May I have that document. Oh, I have it here.
BY MR. WEINGLASS:
Q. Is there a date stamped on the upper, right-hand corner of that
document?
A. There is July 20th, 1994.
Page 166.
Anthony Jackson, Esq. - Redirect
Q. 1994?
A. That is correct. Oh, '84. I'm sorry, '84.
Q. 1984?
A. Yes, sir.
Q. Does that indicate to you that your payment wasn't approved for more
than two years after the trial?
A. That's about right, sir.
Q. Now, during the Jury selection procedure, Mr. Grant
asked you on recross if you had peremptorily challenged one
African-American juror.
A. Yes, I did.
Q. And do you recall when you did that Judge Sabo,
without any request from the Commonwealth, called the juror back and asked
the juror to state for the record his race?
A. That's correct, sir. It's the only time the Judge
asked the question, is when I challenged him, peremptorily challenged a
juror. Then the Judge said well, let that witness come back. That juror
came back and put his race on the record. Nobody else did that.
Q. Now, the Commonwealth had peremptorily challenged 11 African
Americans?
A. Absolutely.
Page 167.
Anthony Jackson, Esq. - Redirect
Q. Did the Judge at any time ever ask any of those jurors to state
their race for the record?
A. Not once.
Q. Have you testified honestly in this proceeding?
A. I certainly have, sir.
Q. To the best of your knowledge?
A. The best of my knowledge and recollection.
Q. There are some things you couldn't recall completely about 13 years
ago?
A. And that's clear and obvious. And as I said to Mr.
Grant and to you, I've been mistaken. If he wants to say I lied about
things I didn't remember, there are some things I just clearly, sincerely
did not remember. It happened 13 years ago. To the extent that you or Mr.
Grant corrected me, I stand corrected. I had no intention to lie, falsify
any testimony, or to make any misrepresentations to this Court, or anyone
else for that matter.
Q. Would it have been helpful to you if Mr. Grant as your
friend had reviewed the trial transcript with you before he questioned
you?
A. Well, it may have been helpful as a friend but I understand the
adversarial process in which we are engaged, sir.
Page 168.
Anthony Jackson, Esq. - Redirect
Q. Did I review portions of the transcript with you before you
testified?
A. Yes, sir.
Q. When Debbie Kordansky spoke to you on the telephone, did she say to
you that she didn't want to help you?
MR. GRANT: Objection. That goes beyond the scope of my recross. I
didn't bring up any conversation.
THE COURT: I think we have gone over that before, Counselor. There is
no need to go over it a second time.
MR. WEINGLASS: Well, the record will speak for itself.
THE COURT: That's right.
MR. WEINGLASS: If the Court will just give me a moment.
(Pause.)
MR. WEINGLASS: I'm sorry. June 30th, 1982. Page 5.
BY MR: WEINGLASS:
Q. I am afraid to tell you what I said because I really
don't want to help you. She said I really don't want to help you. Do you
recall now?
MR. GRANT: Objection.
Page 169.
Anthony Jackson, Esq. - Redirect
THE WITNESS: Yes.
MR. GRANT: Your Honor just sustained that. Move to strike it.
THE COURT: I just said that was asked before, Counselor. How many times
are we going to ask the same question.
MR. WEINGLASS: Your Honor, the question on recross was
asked if he was sure of what Debbie Kordansky might say. I'm only pointing
out that the witness indicated --
THE COURT: I know, but you had brought that out before that she had
said that, and you are doing it again.
MR. WEINGLASS: Right, I just wanted to point out that
whatever the witness would have said, the witness indicated to Counsel
that she had information that would help him.
THE COURT: Counselor, Counselor, I know all of that
already. Counselor, you are beating a dead horse a number of times. It has
already come out, let's leave it go at that.
MR. WEINGLASS: Okay. I have no further questions.
MR. GRANT: Nor do I, Your Honor.
THE COURT: All right, you are
Page 170.
excused.
THE WITNESS: Thank you, Your Honor.
THE COURT: Oh. We will break for lunch until, it looks like 2:15?
MR. GRANT: Yes, Your Honor. Can we be informed as to which witness if
any is going to appear at that time?
THE COURT: Oh, yes, do you have any idea?
THE COURT OFFICER: Quiet in the room: Court is still in session. Thank
you.
THE COURT: Do you know who you are going to call at 2:15,
Counselor?
MR. WEINGLASS: Jeremy Gelb.
THE COURT: Do you have that other motion too, with Judge Ribner?
MR. WEINGLASS: We will be ready.
THE COURT: When will we do that?
MR. WEINGLASS: Whenever the Court would like.
THE COURT: Well, whenever you tell me. Because we have to let them know
when to come over.
MR. WEINGLASS: 2:15 is fine.
THE COURT: All right. Then after
Page 171.
that who would we have?
MR. WEINGLASS: Jeremy Gelb.
THE COURT: Jeremy Gelb.
MR. WEINGLASS: Yes. And there is a matter in connection
with that which Mr. Grant and I will have to discuss and possibly take up
with the Court. Which I don't want to go into. Mr. Grant and I will first
discuss it.
MR. GRANT: Well, I don't know what I am discussing so I am not taking
up anything with the Court.
MR. WEINGLASS: Fine. The courtesy is overwhelming.
MR. GRANT: You act like a lawyer you get treated like a lawyer, Mr.
Weinglass.
MR. WEINGLASS: I hope that is on the record also.
MR. GRANT: It is on the record.
THE COURT: All right, we will adjourn until 2:15.
THE COURT OFFICER: Yes, Your Honor.
- - - - -
(Luncheon recess was held until 2:35 p.m.)
Page 172.
MR. HOLMES: Good afternoon, Your Honor. My name is Howard
Holmes; I am an attorney with the Administrative Office of Pennsylvania
Courts. I have the honor to represent Judge Paul Ribner, who has been
subpoenaed to appear in this matter and testify.
Your Honor, Judge Ribner was originally subpoenaed by a
subpoena dated, or subpoena which asked him to appear on Tuesday, July
18th, and for the duration of the proceedings. And to bring with him,
quote, any and all records and notes concerning the assignment of judges
from December 1981 through June 1982, and then any records pertaining to
the composition of judges in 1982, and any sitting in homicide cases in
June of 1982. And subsequently Judge Ribner was advised of the
postponement of that July 18th hearing date. Approximately July 25th he
was notified that he was being asked to appear this afternoon. And I
attempted to speak with and finally did speak with opposing Counsel, a
Miss, I think it was a Miss West, I may have said Miss Wells but I think
it is a Miss West, Valerie West or Valerie Wells, who advised me as to the
nature of the
Page 173.
information sought.
And according to Miss West, she said that what she wanted
from Judge Ribner was, had to do with the following areas of inquiry. One,
when a defendant was removed from a courtroom in or about 1982, but the
proceedings continued in his absence, what if any, quote, equipment,
unquote, was available to allow that person to observe the proceedings
from whatever location he or she had been transferred to.
The second area of inquiry was the race of judges sitting
in the homicide program in or about 1982, and how they were selected for
the program.
And three, Counsel indicated that she wanted assistance
in reconstructing a record which allegedly could not be located. That was,
and that was really all that was said about the so-called record: No
specific information was provided. Although I was told that I would get a
return call with more specific information and I never did.
So with respect to those areas of inquiry, Judge, we have
filed a motion to quash on Judge Ribner's behalf on several grounds.
Page 174.
Aside from the issue of relevance, the question is, first
of all, does the Judge, what information can the Judge provide as to the
so-called equipment or lack of equipment. I think this Court could take
judicial notice -- and certainly the attorneys for the Commonwealth and
for the Petitioner should be able to agree -- that at the time in
question, 1982, there was no video equipment or anything similar provided
or available to the court so that somebody who had been removed from the
court could observe the proceedings from another room. So I don't think
Judge Ribner's testimony is necessary in that regard.
Second, Judge Ribner has no records from which to
determine the racial composition of the homicide program judges in that
period. And he was not involved in the process by which they were selected
for the program. That information should probably come from Court
Administration for the First Judicial District and not from an individual
judge.
C, with respect to the record, we still don't know what
record is being talked about or spoken of; but we respectfully suggest
Page 175.
that at least in the first instance, a sitting judge who
has his own criminal docket should not be called to another court to
reconstruct a record. A judge is not a court reporter, he is not a
transcription machine, he is not a record. So it seems to me that in the
first instance the parties should make an attempt to, to put together a
record before they attempt to subpoena a judge, or at least one side
attempts to subpoena a judge to supply missing information.
THE COURT: Well, Counselor, I think the record you are
looking for is what I received a copy of just a short time ago. They were
notes that were taken on December 2lst, 1981 before Judge Ribner. Notes of
February 22nd of 1982 before Judge Ribner. And April the 1st of 1982
before Judge Ribner. And of course they already had the May 13th, 1982
record.
MR. HOLMES: I can't speak to that, Your Honor, because I
was never told. I was never told what the record was that was at
issue.
THE COURT: I know, but I think that is the issue that they are talking
about. If it
Page 176.
is not that --
MR. HOLMES: We also provided Your Honor with a brief
talking in general terms about the case law of calling a judge as a
witness in another case concerning matters which hadn't been before him in
the previous case. It may be that Counsel, my colleague, Counsel for the
Petitioner, would suggest that the assignment of cases is not a judicial
act but an administrative act. However, I would certainly contend that it
is a judicial act. My familiarity is with the area of civil rights law and
I would suggest, and several Federal courts have said, that the assignment
of cases by a judge is a judicial act.
Usually the basis of a lawsuit against a judge is I am
suing this judge because he assigned this case to judge A as opposed to
judge B. That is a judicial act. And I can give Your Honor cites to
several cases, recent cases, Federal cases, which have held that
assignment of cases is a judicial act.
I say that because much of the case law that has
developed about judges testifying has developed in the context of judges
should
Page 177.
not be required to testify regarding judicial acts,
particularly where, as in this case, they would require, I think, going
into the Judge's mentality, state of mind, opinions and so forth. And
assignment of cases seems to fall in that category.
So we would respectfully request that Your Honor quash
the subpoena, particularly in light of the fact that the record that was
at issue has been found.
Thank you, Your Honor.
MR. WILLIAMS: Good afternoon, Your Honor.
THE COURT: Good afternoon.
MR. WILLIAMS: We subpoenaed Judge Ribner, again, in an
effort to take advantage of the Court's offer to us to have a full and
fair hearing. And the reason why Judge Ribner is needed for a full and
fair hearing is that two of the claims of the 19 that we are raising touch
upon facts that Judge Ribner could testify to.
THE COURT: What are they?
MR. WILLIAMS: First of all, claim 12 in our Petition, claim 12 in our
Petition
Page 178.
concerns in part the issue of the special tribunal. Now, I am from New
York, as Your Honor knows --
THE COURT: What do you mean a special tribunal?
MR. WILLIAMS: Well, my understanding is that in
Pennsylvania, or in Philadelphia, that there is a special homicide
unit.
THE COURT: Yes.
MR. WILLIAMS: And if my understanding is correct, that
special homicide unit constitutes a special tribunal. And that is a term
of art.
THE COURT: I know that, but Judge Ribner has nothing to do with
that.
MR. WILLIAMS: Well, he does, Your Honor, in this sense --
THE COURT: No, he doesn't. He doesn't have a thing to do
with it. He was not the calendar judge forever. There's been different
calendar judges even before him and after him. They have nothing to do
with the composition of that.
MR. WILLIAMS: Well, he has something to do with the special tribunal,
or the homicide
Page 179.
unit, in so far as he was the calendar judge for this case.
THE COURT: I know that, yes, but you said you wanted to
know about the composition and how it was selected. He has nothing to do
with that. I have nothing to do with that.
MR. WILLIAMS: Let me first address the claim that's at
page 154 in our memorandum of law. The claim there is that Judge Ribner
assigned the trial --
THE COURT: Yes.
MR. WILLIAMS: -- of Mr. Jamal to you --
THE COURT: Yes.
MR. WILLIAMS: -- for a particular reason. And the reason
is that it was his understanding, given Your Honor's reputation, that
--
THE COURT: I had no reputation back in '82, Counselor.
MR. WILLIAMS: Well, it appears that you had based upon
our motion for recusal, and that has been explored extensively here in
Court. But the point is this, that the reputation, as understood by Judge
Ribner, and
Page 180.
as understood by other members of the judiciary, is that
by having the case assigned to Your Honor, it would maximize the chances
that Mr. Jamal would be convicted of the charges.
THE COURT: Oh, I don't think that's true.
MR. WILLIAMS: Well, Your Honor may differ, but that's why we would like
to have testimony elicited.
THE COURT: I understand that there is a rule from the
Supreme Court, our Supreme Court, that no judge can be subpoenaed to
testify in a court without their approval. I think that's still in
existence.
Is that still in existence?
MR. HOLMES: The rule exists, Your Honor, but it relates to character
testimony.
THE COURT: Oh, just character?
MR. HOLMES: Although apparently Counsel wants to call
Judge Ribner as to your character, but I don't think that that's quite
what the rule has in mind.
MR. WILLIAMS: Unless, Your Honor, we could show a
particularizing need. And that is a particularizing need. That is what I
am
Page 181.
articulating to you. Our particular need relates to our claim 12 as to
why the case was assigned to Your Honor.
THE COURT: I may have been available at that time, I don't know.
MR. WILLIAMS: And we would like to explore that, that's precisely the
point.
THE COURT: But what does that have to do with the PCRA petition?
MR. WILLIAMS: Because if the case was assigned to Your
Honor under the conditions that I've just described -- that is to maximum
the chances that Mr. Jamal --
THE COURT: You are speculating on that, Counsel.
MR. WILLIAMS: Well, I don't wish to speculate, I wish to have testimony
from the witness stand. Isn't that the point?
THE COURT: That is mere speculation.
Yes.
MS. PERKINS: If I may, Your Honor.
MR. WILLIAMS: Your Honor, I haven't completed my argument.
THE COURT: Well, you are talking about this one point that he
raised?
Page 182.
MS. PERKINS: This one particular point.
THE COURT: All right, this one particular point.
MS. PERKINS: The Post-Conviction Relief Act is very
specific regarding the types of claims that a Petitioner may raise, and
this is not one of them. This does not deal with the truth-determining
process, meaning the trial. We are not reviewing the evidence that was put
before the Jury. These are extraneous issues that the defense has tried to
throw into this case, and now go after, now find witnesses to support it.
It was, you know, it was a very suspicious claim when they raised it in
the Petition; it is still suspicious.
If they want the record, if they want it reconstructed
then they could do it in the normal fashion the way things always are
reconstructed when the notes, when the notes of testimony are missing.
If they want to establish that there is some sort of
special tribunal, this issue has been dealt with in other cases before the
State Supreme Court. Specifically, the Career
Page 183.
Criminal Program which used to exist in the Court of
Common Pleas in Philadelphia. And it was specifically held that it was not
a special tribunal which in any way infringed upon anyone's rights. And
the Homicide Program is very similar to that. It is the exact same
situation. Judges were put in a program and they handled specific types of
cases. That program was upheld as the homicide Program is, and there is
absolutely no issue here. It has nothing to do with any claim under the
PCRA that is cognizable under the Act.
I would submit to the Court again: The motion to quash is
a valid argument, that the subpoena should be quashed. They do not have a
relevant issue here or material basis for subpoenaing Judge Ribner or
anything that he may have. And we should proceed with this hearing as
scheduled, Your Honor.
MR. WILLIAMS: Your Honor, it does go to the heart of the
truth-determining process. When a case is assigned to a judge for purposes
of maximizing the chances of a conviction, I can't think of another,
anything that goes more to --
Page 184.
THE COURT: I didn't manufacture anything in this case.
MR. WILLIAMS: Well, I appreciate the comment, Your Honor,
but we would like to have sworn testimony to test that assumption.
THE COURT: You may like to have a lot of things but if
it's not cognizable under the PCRA statute, it's not cognizable, period.
We are not going to speculate here.
MR. WILLIAMS: That's precisely what I am trying to avoid.
THE COURT: Well, yes, you are trying to bring in a lot of issues that
are not proper before this proceeding.
MR. WILLIAMS: So let me understand the Court, as I am
trying to understand the Court. Is Your Honor suggesting that even if we
could establish that the case was transferred to you under very sinister
auspices, that we still would not have a Constitutional claim? If that is
the case then Your Honor is correct: We ought not be able to present that
witness. But our claim is if indeed the testimony bears out our
allegations, we do raise a significant Constitutional claim.
Page 185.
THE COURT: That is a lot of ifs. That is a lot of ifs.
MR. WILLIAMS: Well, it is an if that we would like to answer, that is
the point.
THE COURT: Well:
MR. WILLIAMS: We would like to have testimony on this. I am trying to
avoid the speculation --
THE COURT: Well.
MR. WILLIAMS: -- the conjecture. We would like to have sworn testimony.
And it can be challenged on cross-examination.
THE COURT: Well, I will tell you what: You raised a lot
of other issues with the Supreme Court, you could raise that one with them
too.
There's already been a case that says it's not an issue, right?
MS. PERKINS: Yes, Your Honor. There is a case that says --
THE COURT: Do you have that case?
MS. PERKINS: It's cited in our discovery answer, I
believe it is. A finding that the Career Criminal Program was upheld, that
this was not a special tribunal. And the
Page 186.
Career Criminal Program is exactly the same situation as the Homicide
Program in the Court of Common Pleas of Philadelphia.
MR. BURNS: Actually, Your Honor, if I may? The case is
Commonwealth versus Moore, and it states that the Homicide Program is
Constitutional, it is not a special tribunal.
THE COURT: They already said that.
MR. BURNS: That issue was decided by the Pennsylvania
Supreme Court in 1993, Commonwealth versus Moore, 633 Atlantic Second,
119, 1993. Certiorari denied by the United States Supreme Court, Your
Honor.
MR. WILLIAMS: Your Honor, let me be clear. The claim with
respect to Judge Ribner doesn't go to just simply a facial challenge to
the homicide panel. What it goes to is the reason why this particular case
was assigned to you pursuant to that panel. That's the point. And if Your
Honor is suggesting that even if the testimony that's elicited proves what
we are asserting in our Petition, that, nonetheless, we do not raise a
Constitutional claim, then we will take that issue up with the Supreme
Court.
But our contention is -- let me be
Page 187.
clear about this -- that if we can establish our
allegations in the Petition, that in fact it was transferred to you for
reasons of maximizing the chances of getting a conviction, that raises a
severe and important Constitutional issue. And that's why we believe we
have manifest need for Judge Ribner on that claim. That is the claim
number 12 in our Petition.
THE COURT: All right, could you answer that?
MR. HOLMES: Well, Your Honor, it is the kind of argument
that I hear all the time from prison inmates who sue judges claiming that
the people have conspired against them, that in the assignment issue that
the judge specifically assigned another judge or himself to a case because
he wanted to get the inmate. What's always missing is any facts which
would lead a judge to say well, we better explore that issue, maybe there
is something to it.
In other words, a person could contend anything they
want, but without some, some basis for making the statement, it's just
fiction. And I respectfully suggest that in the absence of some evidence
presented to Your Honor which
Page 188.
would suggest that this is an issue that should be
explored by calling a sitting judge to explain his reasons why he
performed a judicial act -- and I contend that assigning a case is a
judicial act -- that it should not be done. There is a body of case law
that says you don't question judges about their judicial acts except in
the sense of what's on the record, what are the opinions, what is the
conduct.
Also, it seems to me that whatever the motive was for
assigning a judge to a case, it's how that judge acted in that case that
seems to be important, if I understand the PCRA process correctly. It is
how Your Honor performed it, not how some other judge performed. Maybe I
am wrong in my understanding of the PCRA, but that seems to be what it's
about.
So in the absence, I would respectfully suggest that -- I
realize this is a death case and therefore it has that greater urgency and
greater importance -- but nevertheless, it is the kind of argument that
any inmate is liable to make about any case which is assigned, you know,
within the context of a criminal division or a civil division,
Page 189.
criminal division, of any particular judge, that the
assignment itself was suspect. And I respectfully suggest in the absence
of some evidence which would support that contention, that one should not
be questioning the judge who committed the judicial act of assigning the
case.
So I would respectfully continue in my motion to quash the
subpoena.
THE COURT: Yes, you had Anthony Jackson on the stand, you didn't ask
him about anything --
MR. WILLIAMS: Well, I don't think Mister --
THE COURT: Well, he was there. He was there when the case was assigned.
I wasn't there. I didn't ask for the case. I've never asked for a case.
And I've never refused a case. Whatever is assigned to me I do.
MR. WILLIAMS: Well, the question is not whether you would refuse the
case or whether you even solicited the case.
THE COURT: Well, then what does it have to do with this case?
MR. WILLIAMS: The question is not
Page 190.
whether Mr. Jackson had a suspicion in that regard.
THE COURT: Well, the thing is you are making general allegations with
no basis to support it.
MR. WILLIAMS: It is a very specific allegation.
THE COURT: No; it isn't. And the only one that could tell us that would
be Jackson since he was there.
MR. WILLIAMS: The only one that could tell us is Judge Ribner.
THE COURT: Not Judge Ribner. To get to Judge Ribner you
have to put something in evidence first to say that it is an issue for him
to come in. At this moment and at this time I am quashing the subpoena for
Judge Ribner. Later on --
MR. WILLIAMS: I haven't reached the other basis for it
yet so I would appreciate the opportunity to do that.
THE COURT: In the future, if you could come in with some
concrete evidence, or at least something that would justify calling him,
fine. But he is busy in another case.
Page 191.
MR. WILLIAMS: Your Honor, I understand that.
THE COURT: Okay.
MR. WILLIAMS: The question is whether we can establish a
cognizable Constitutional claim by bringing in the only witness that is
competent to testify about that subject matter. And the subject matter is
why the case was transferred to Your Honor.
THE COURT: Well, why don't you go talk to him. Maybe he will talk to
you, I don't know.
MR. WILLIAMS: It seems to me that Counsel's argument puts
the cart before the horse. Counsel's argument suggests that we don't have
a good faith basis for making the claim, but then at the same time the
very witness that we are, that we wish to call who could make out the
claim is unavailable to us. That puts --
THE COURT: Well, do you have any cases to supply to me? He is giving me
a case.
MR. WILLIAMS: Your Honor, I think this may be a case of first
impression.
THE COURT: Well, fine, but give me a
Page 192.
case that would justify my calling, permitting you to
subpoena a judge who made a judicial decision. Give me a case. If you
don't have a case, Counselor, please, I will quash the subpoena. If you
find a case, then I will reconsider. But I am not going to waste time
arguing about something. He has given me cases that says you don't have
this right. Now, if you could give me a case on point I will
reconsider.
MR. WILLIAMS: Very well, I appreciate that.
THE COURT: Well.
MR. WILLIAMS: The other point, Your Honor, is that
Counsel has directed, or has advised us to direct our inquiry regarding
the homicide panel to the Court Administration for the First Judicial
District. And we intend to take up that invitation.
THE COURT: All right.
MR. WILLIAMS: That goes to the issue of timing. We would
need time to pursue that avenue because we are embroiled in this hearing
and it is taking up the balance of our time. So we would, in order for us
--
Page 193.
THE COURT: You have to show somehow that it has some
meaning under PCRA. You could be subpoenaing everybody. You could even
start subpoenaing the Supreme Court Justices next. Who else do you want to
subpoena?
MR. WILLIAMS: Well, we want to subpoena people who are relevant to the
claims that we have articulated in our Petition.
THE COURT: Well, the Supreme Court controls our Judicial
District here. Are you going to subpoena every Supreme Court Justice?
MR. WILLIAMS: No; we wish to take up the invitation by Counsel that we
--
THE COURT: Well, I don't know if it is an invitation,
that is up to you people. If you have an invitation go at that time. But
don't look to me, I am not extending invitations.
But as I told you before: If you could give me a case,
Xerox a case for me and I will read it, that you have a right to subpoena
a judge like in this case, I will be glad to read it.
MR. WILLIAMS: Now, Your Honor, there was a second basis for our need
for Judge
Page 194.
Ribner. The second basis goes to claim 6 in our Petition.
Claim 6 deals with the fact that Mr. Jamal was banished from the Courtroom
during significant portions of his trial.
THE COURT: Yes, by his own conduct. And the Supreme Court
has already ruled on that, Counselor, so that's already been decided.
MR. WILLIAMS: And that will be an issue for future courts.
THE COURT: That's all right it is an issue for future
courts. But the Supreme Court has already taken up that issue and has
ruled on it. It's not a proper thing to rehash now in a PCRA petition.
MR. WILLIAMS: As Your Honor knows, in our Petition, a
prong of that argument on the banishment of Mr. Jamal relates to whether
the Court had taken sufficient action to insure Mr. Jamal's rights to
assist his Counsel and to be apprised of his proceedings.
THE COURT: Counselor, the Supreme Court has already looked at all of
that.
MR. WILLIAMS: Well, Your Honor, they didn't have the benefit of whether
the Court took sufficient action.
Page 195.
THE COURT: Yes, they did. They went over, they went over
the entire record and they made a decision on that. That decision
stands.
MR. WILLIAMS: The Court never, the Court was never directed to --
THE COURT: The Supreme Court has already ruled on that issue,
Counselor.
MR. WILLIAMS: The Court did not rule on that issue.
THE COURT: Yes, they did. They went into that whole issue.
MR. WILLIAMS: Into the issue of banishment?
THE COURT: Yes.
MR. WILLIAMS: That is just not true, Your Honor.
THE COURT: It is true. Well, you read the decision again.
It's another matter you could preserve, you could argue it before the
Supreme Court a second time. If they will listen to you, fine.
MR. WILLIAMS: What we need in this hearing is to
establish that there were no, the Court did not provide sufficient means
by which Mr. Jamal could maintain knowledge of what was
Page 196.
happening in these proceedings.
THE COURT: The Supreme Court... I'm sorry.
MR. WILLIAMS: If I may, Your Honor: Judge Ribner's
testimony would be relevant insofar as he could testify to the
technological equipment that was available to the Court.
THE COURT: He has already told you we had no such technical
equipment.
MR. WILLIAMS: It is indicated that we should accept a
stipulation that there were no video equipment or similar aid
available.
THE COURT: Well, I didn't have it at the time.
MR. WILLIAMS: We don't want to accept a stipulation, we would like to
have it under oath on that subject.
THE COURT: Judge Ribner won't know anymore about that than I do.
MR. HOLMES: I think Your Honor could take judicial notice
of the state of Common Pleas Court at that time. Your Honor was sitting at
that time.
THE COURT: That's what I was saying to him. So did the Supreme Court.
They know
Page 197.
what we have.
MR. HOLMES: The answer is obvious. There was no
audio-video mechanism of the kind Counsel is talking about, as far as I
know. And Your Honor is in a better position to know than I am.
THE COURT: The only two things were to either tie or gag
the defendant or to evict him. The Supreme Court of Pennsylvania had said
the better procedure would be to evict him, not to bind and gag him in
front of the jury. That was the Supreme Court's opinion back in those
days. And that's what I did.
So, Counselor, I have heard enough on the subject. You have an
exception to my ruling. I am quashing the subpoena.
MR. WILLIAMS: Let me just be clear in terms of the full
and fair and the adequacy of the hearing, that we would like to present
testimony to support our claim that Mr. Jamal was not given sufficient,
that the devises that were available to the Court were not used to allow
Mr. Jamal --
THE COURT: Okay.
MR. WILLIAMS: -- to be apprised of
Page 198.
the proceedings.
THE COURT: Okay, we know about what was available. His
attorney, as a matter of fact the notes will show you that his attorney
told him what happened during the proceedings. That's the only
technological equipment that we had at the time. And I only had one of two
choices: Either gag him so he could sit here and listen -- and the Supreme
Court wasn't happy about gagging any prisoners in front of the Jury so we
didn't do that.
MR. WILLIAMS: Your Honor, with regard to the
reconstruction of the record, which also was another reason why we needed
to call Judge Ribner --
THE COURT: For what, what record?
MR. WILLIAMS: The missing minutes.
THE COURT: Well, I told you. Which ones are you talking about? I just
read you the ones that we have.
MR. WILLIAMS: Right.
THE COURT: Don't you have these?
MR. WILLIAMS: Well, we have --
THE COURT: These copies?
MR. WILLIAMS: We have now been given
Page 199.
the Clerk's copy to review here.
THE COURT: Didn't you get the one for December the 2lst,
1981, the notes before Judge Ribner? And didn't you get the notes dealing
with February the 22nd of 1982? And were you not given the notes of April
the 1st of 1982 before Judge Ribner?
MR. WILLIAMS: I was given those notes just a moment ago.
THE COURT: Well, that's all I got a moment ago. You said you got them.
Go over them.
MR. WILLIAMS: Your Honor, I understand, I am not
suggesting that anything is out of order here. I am just alerting the
Court that we just received them.
THE COURT: I know, I just received them myself.
MS. PERKINS: We don't have them at all, Your Honor, and I would request
a copy.
THE COURT: You don't have them?
MS. PERKINS: We don't have them at all.
THE COURT: Maybe they are in the process of getting over to you. I just
found
Page 200.
them when I went back for lunch, and I found them on my
secretary's desk, that's how I found them. But if they don't deliver them
to you, let me know and I will have copies made. But I am sure they must
be on their way to you.
MR. WILLIAMS: Let me be clear here, that the Clerk has
indicated that this is not our copy and we are also awaiting our copy.
THE COURT: You didn't get your copies either?
MR. WILLIAMS: We just got copies to review that the Clerk was kind
enough to allow us to look at.
THE COURT: Let me say this to you, Counselor: If you
don't get yours either you give us a call and I will make copies of the
notes that I have.
MR. WILLIAMS: I appreciate that.
THE COURT: I will get them to you.
MR. WILLIAMS: Now --
THE COURT: As a matter of fact, he shouldn't have even given you the
original notes.
MR. WILLIAMS: That is something you will have to take up with him.
Page 201.
THE COURT: Well, you shouldn't give out anything from the
original Clerk of Quarter Sessions without the Court's approval. You could
have asked me and I would have given you my copies to look at. You should
never have those things leave your possession.
THE COURT CLERK: He was just looking at them, Judge.
THE COURT: I don't care what he is doing, you should not
let them leave your possession. If he needs copies I will see that he gets
copies. Or probably on the way to his office. Because they are not
necessary right this minute.
MR. WILLIAMS: Your Honor, if I may -- and again, in
defense of the Clerk, I am the one that asked if I could look at them.
THE COURT: I know what you asked and all I am saying is
the Clerk of Quarter Sessions should not let anything out of his
possession without the approval of the Court.
MR. WILLIAMS: I knew that I would have to argue in front of Your
Honor.
THE COURT: No, you are not going to argue. I am not going to have any
argument
Page 202.
about it. I was just going to give you copies if you
didn't get yours. I assumed because I found these on my secretary's desk
when I broke for lunch that you would also have yours. Yours are probably
over in your office, probably delivered. Just as the D.A. doesn't have
hers either. But if you don't have them there, you give me a call and I
will see that you get copies.
MR. WILLIAMS: I will give these back to the Clerk. And
may I take up Your Honor's invitation to look at Your Honor's copies?
THE COURT: Later on, if you don't have yours. Because it is not
something that we will hear now.
MR. WILLIAMS: It is clear that we have three of the four missing
transcripts.
THE COURT: What other one --
MR. WILLIAMS: The March 18th, 1982 minutes are still missing.
THE COURT: March what?
MR. WILLIAMS: March 18th, 1982.
MR. GRANT: Your Honor, you can't resolve this. Your Honor
has ruled on a motion to quash. Can we proceed with a hearing? I
Page 203.
think the witness is probably not here again.
THE COURT: I will try to look into it and I will check
with the Clerk to see if they have it. If they don't have it I will see
what I could do about getting it.
MR. WILLIAMS: The March 18th transcripts are probably the
most important of these four. So we are going forward without the benefit
of a full record. And in fact --
THE COURT: You are going forward with what witnesses that
you have available to testify. They don't need these records. These
witnesses that are going to testify certainly do not need these records.
You may have them for whatever purpose you want, but these witnesses were
not present there. This was something between -- and you should have asked
Mr. Anthony Jackson what happened on that day. He was the one who ought to
know what happened.
MR. WILLIAMS: That is precisely the point, Your Honor. We had Mr.
Jackson on the stand --
THE COURT: Wait awhile. Could I see the Court file, please?
Let's see what happened on that day.
Page 204.
The Court record ought to tell us what happened. Let's see if we could
find it.
What was that date again? March 18th?
MR. WILLIAMS: March 18th, 1982.
THE COURT: Didn't we have something the other day, Gina, that had
those? Do you have those?
MS. FURIA: (Handing).
THE COURT: Well, March the 18th, '82, docket entries
indicate there was an application for a writ of habeas corpus to be
released from administrative segregation at the Philadelphia County
Prison. It was filed that day. 3-18-82 the application was granted. And it
says see the file.
And then right underneath that, same date, petition to
distribute questionnaire to venire persons, to proposed venire persons
filed. That was when he filed that.
Then I guess they must have had a hearing on it.
MR. WILLIAMS: Well, that sounds like --
THE COURT: Just a minute. Just a minute. That's all those dates were,
they were
Page 205.
just dates that he filed. And I think that was heard on
April the 1st. And I think when you get the notes of testimony here, you
will see that was taken up at that time. But there was no hearing or
anything on that date.
MR. WILLIAMS: Your Honor, what's happening now is that we
are reconstructing the record as we speak. And it's really not in an
orderly fashion. And the accuracy of the way we reconstruct the record is
extremely important.
Your Honor is directing us to transcripts of April lst,
you are making representations from docket entries. And from my
experience, docket entries are often truncated and not complete. We've had
Anthony Jackson on the stand, we had to question him without the benefit
of the April 1st minutes, which are not insubstantial.
THE COURT: Well, first, why don't you wait until you get
copies of this. If you have a problem you bring it up later on again, will
you.
MR. WILLIAMS: That's what we had asked for several weeks ago.
THE COURT: Okay, well, bring it up
Page 206.
later on, will you please.
MR. GRANT: May we proceed now, Your Honor?
THE COURT: Let's proceed with this. The motion to quash
the subpoena for Judge Ribner is granted. And that's that. You could bring
it up later on if it becomes necessary. After you read these notes.
MR. WILLIAMS: On the issue of the reconstruction of the missing
transcript of March 18th.
THE COURT: Well, there is no transcript for March 18th, I
am trying to tell you that. It's just what Jackson did: He filed something
and the Court makes a record of it.
MR. WILLIAMS: That is the record we would like to see. I assume it is
in the minutes.
THE COURT: Well, it should be in here somewhere. See if you could find
it for the gentleman.
MR. HOLMES: May I be excused while that happens?
THE COURT: Yes.
MS. PERKINS: Your Honor, if they
Page 207.
wanted to reconstruct a record the way to do it is with
the parties who were present. They had Mr. Jackson on the stand for three
days. Not a single question was asked as to what happened on this date.
That's how you reconstruct the record. Now that Mr. Jackson is gone, after
he's been there for days on end, now they said oh, we've got to
reconstruct this and we have to have the calendar judge to do this. Judge
Ribner, you know, did not just preside over this one case. He had many
other cases. There's absolutely no reason to believe that he would even
remember what happened that date other than what's in the Quarter Sessions
file. I submit to the Court we should proceed with their next witness.
Let's find out if he's here. I don't see Mr. Gelb in the room. Maybe he is
in the back or something, but let's proceed with the testimony.
MR. WILLIAMS: Your Honor, I appreciate their anxiousness
to proceed, and we are anxious to proceed, but it's very difficult to
proceed when we don't have the confidence in the full, that we have the
full record.
THE COURT: You don't need that in
Page 208.
order to proceed with any of these witnesses that you
have listed here, that's what I am saying to you. In the future, why don't
you wait until you get copies of these notes, read them over, if it
doesn't satisfy you let me know. We could take this up at another
time.
Let's not stand here and argue forever, Counselor.
MR. WILLIAMS: I beg your pardon, Your Honor, but we don't have the
luxury --
THE COURT: Counselor, I have ruled. Proceed with your
next witness. Come up later on. If after you get these copies, if that
doesn't satisfy you as to what happened on March the 18th, '82, we will
see where we go from there. But these witnesses that you are calling, they
don't need to know about that. That was something even before trial, with
Judge Ribner.
All right, who is your next witness?
MR. WEINGLASS: Petitioner calls Jeremy Gelb.
THE COURT: Is he back there?
MR. GRANT: I think what you'll find, Your Honor, the reason why we
spent an hour
Page 209.
talking about something that could have been said in five
minutes is because the witness is not here. They knew he was not here,
they knew he wasn't there then and they do this everyday at the beginning
of the proceedings.
THE COURT: I know. We will wait a few minutes.
MR. WEINGLASS: Excuse me. Did the Court say who is your next potential
witness? Robert Greer.
THE COURT: Let's assume he doesn't show.
MR. WEINGLASS: Mr. Gelb is here, Your Honor.
THE COURT: Well, so far he is not here. Assuming that he is not here,
who is your next witness?
MR. WEINGLASS: He is here, Your Honor.
THE COURT: I know you keep saying he is here. The Court Officers can't
find him. He's here now? Is he here?
THE COURT OFFICER: Yes, Mr. Gelb.
THE COURT: Okay? he's here.
Page 210.
Jeremy Gelb, Esq. - Direct
Jeremy C. Gelb, Esquire, having been duly
sworn, was
examined and testified as follows:
- - - - -
THE WITNESS: Good afternoon, sir.
- - - - -
DIRECT EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. Good afternoon, Mr. Gelb.
A. Good afternoon.
Q. Mr. Gelb, would you state your current occupation and
employment?
A. I am an attorney.
Q. And do you maintain offices for the practice of law?
A. I do.
Q. Under what title is your office?
A. I am, I am a sole practitioner. I am licensed to practice by the
Supreme Court of Pennsylvania.
Q. And in what year were you admitted to the practice of law?
A. 1980.
Q. Now, are you appearing today pursuant to subpoena?
Page 211.
Jeremy Gelb, Esq. - Direct
A. I am.
Q. And did more than one subpoena come to your office?
A. Yes.
Q. Now, have you had occasion prior to today to speak to myself?
A. I have.
Q. On approximately how many occasions?
A. I believe twice. In person.
Q. Did you have an opportunity prior to today to speak to Mr. Grant,
who is seated here at Counsel's table?
A. I have spoken to Mr. Grant I believe twice by telephone.
Q. And in the course of speaking to both Mr. Grant and to
myself, did you discuss an issue related to another attorney other than
yourself?
A. Yes, I did.
Q. And did you bring with you today a document pertaining to the other
attorney?
A. Yes, I did.
Q. And was the other attorney subpoenaed as well?
A. Yes.
Q. Do you have the document with you?
A. I do.
Page 212.
Jeremy Gelb, Esq. - Direct
MR. WEINGLASS: Could you present the document to the Court.
And I ask that the Court examine it and seal the document.
THE COURT: What document are you talking about, a subpoena?
MR. WEINGLASS: No, Your Honor.
MR. GRANT: May we approach sidebar, Your Honor?
MR. WEINGLASS: Yes, I would appreciate that.
- - - - -
(Discussion held in the Judge's robing room
was
transcribed and was sealed by Court order.)
- - - - -
BY MR. WEINGLASS:
Q. Mr. Gelb, after your admission and prior to the year 1985, could you
briefly summarize for the Court your practice?
A. Yes, my practice during those years was primarily criminal trial and
criminal appellate litigation.
Q. And prior to 1985 had you ever filed in your own name an appeal in a
death penalty case?
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Jeremy Gelb, Esq. - Direct
A. No.
Q. Now, did there come a time in 1985 when you were asked to assist the
assigned appellate Counsel for Mr. Jamal?
A. Yes.
Q. Do you know if his assigned appellate Counsel at that
time was the first attorney assigned by the Court to handle Mr. Jamal's
appeal?
A. I believe the answer to that is no. And I gleaned that
only recently from a review of the appellate brief. I believe there was a
prior attorney who for some reason was released and I believe that
appellate Counsel was thereafter appointed.
Q. So that would explain the time gap from 1982, the date
of conviction, followed by a 1983 date of formal sentencing, and then
1985, assigned appellate Counsel being assigned, who was I believe the
second --
MR. GRANT: I would object. That is not explaining
anything, Your Honor, that is purely speculation. He knows from the time
that his firm entered this appearance, that's all he knows.
MR. WEINGLASS: I will move on.
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Jeremy Gelb, Esq. - Direct
THE COURT: Because I think the Court records ought to show what
happened.
BY MR. WEINGLASS:
Q. Mr. Gelb, did you play any role in the preparation, in
the filing of the appellate brief before the Pennsylvania Supreme Court of
Mr. Jamal's appeal?
A. Yes, I did. I assisted appellate Counsel in some of
their research with respect to many of the appellate issues that were
raised in the brief. By that I mean I was assigned to do some of the
research, to discuss some of the issues with appellate Counsel. To assist
in working and reworking the brief, so to speak. I recall having a hand in
doing some of the editing of the brief. That's pretty much it. It was
mainly legal research, discussion, editing of the brief.
Q. Do you recall if you reviewed the completed brief prior to it's
being filed?
A. I believe that I reviewed a draft of the final brief.
Candidly, at this point I don't recall if I actually reviewed the final
document word-for-word, but I know that I reviewed at least one draft
before it was filed.
Q. And you signed the brief?
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Jeremy Gelb, Esq. - Direct
A. No, I did not. Appellate Counsel signed the brief.
Q. In the course of your research of the various issues
which you researched in preparation of the filing of the brief, did you
draw any conclusions about the strength of any of the issues that you
reviewed?
A. Yes, I did. I felt that there were several issues that
were very strong issues. In particular, there was a Caldwell issue which
we felt was very meritorious. I recall that there had been a decision of
the Supreme Court of Pennsylvania, I believe it was Commonwealth versus
Baker, which had been decided several years previously, which supported
the position that we were taking. Namely, it was directed to certain
aspects of the prosecutor's closing argument. And we felt that Mr. Jamal's
case was on all fours with Baker and with Caldwell.
There were several other issues that we felt strongly
about as well. One had to do, if I recall, with the cross-examination of a
character witness for Mr. Jamal, Miss Sonia Sanchez.
Another had to do with really an issue of a first
impression in many regards having to do with a question of, involving Mr.
Jamal's political
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Jeremy Gelb, Esq. - Direct
beliefs and whether the cross-examination of Mr. Jamal
contravened his First and Fourteenth Amendment rights under the
Constitution, and his similar rights under the State Constitution. Those
are the issues that I recall with greatest clarity. And I felt that they
were very strong issues.
Q. Incidentally, Mr. Gelb, did you have occasion to meet Mr. Jamal?
A. I have not, no.
Q. Did you, in rendering the assistance you described,
engage in a review of the entire trial record for purposes of identifying
appellate issues?
A. No, sir, I did not review the entire trial record. I
reviewed portions of the record, as the record pertained to the issues
that I was asked to research.
Q. Did you discuss with the assigned appellate attorney
issues that were ultimately raised in the appellate brief and argued in
the Supreme Court?
A. Yes.
Q. And could you describe for us how the research that you performed
was directed?
A. Well, I was given an issue, so to speak, and asked to
research the law as it pertained to that issue. Obviously, later on in my
career I had many
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Jeremy Gelb, Esq. - Direct
occasions to review an appellate record or to review a
trial record and issue-spot myself. That was not what I was doing myself
in this particular appeal. My involvement was not that extensive. Instead,
I was simply asked to review the pertinent law with regard to the issues
that I had mentioned just a few moments ago and perhaps a few others. And
I sort of hit the books and found what I can that supported the position
that appellate Counsel sought to take in the brief.
Q. And did you then have occasion to discuss with assigned appellate
Counsel the issues that you had researched?
A. Yes.
Q. Did you ever have occasion to discuss with appellate
Counsel issues that were not researched by you and not raised in the
brief?
A. Okay. Just so I understand your question: You are
asking me did I ever discuss issues with appellate Counsel that I did not
research and were not raised in the brief?
Q. Correct.
A. Is that correct?
Q. Yeah.
A. I would have to say the answer to that is no,
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Jeremy Gelb, Esq. - Direct
I did not. At least not to my recollection.
Q. And in your work on this case on the appeal, and your
discussions with appellate Counsel, did you become aware of any decision
that was made by appellate Counsel to purposely or consciously reduce the
issues that were raised on the appeal out of concern for the length of the
brief or for any other tactical or strategic reasons?
A. No, I recall no such discussions. I will say that the
brief was fairly lengthy, to my recollection, but I do not recall a
specific discussion concerning the length of the brief or concern for the
length of the brief, no.
Q. Have you examined and been provided with a copy of the
Petition for Post-Conviction Relief that has been filed in this case?
A. Yes, I have.
Q. And have you had an opportunity to generally review the content of
the Petition?
A. Yes, I have.
Q. I draw your attention to an issue that has been
denominated point 2A in the Petition which claimed that there was a denial
of a continuance so that a key defense witness could appear to testify. Do
you recall if you read back in 1985 or '86 that
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Jeremy Gelb, Esq. - Direct
part of the trial record dealing with the issue of
whether or not the Court had properly or improperly denied a continuance
for the appearance of Officer Wakshul?
A. I do not believe I reviewed that portion of the record, no.
Q. Do you recall if you researched the issue of denial of
continuance?
A. No, I did not.
Q. Do you recall if you had a discussion with assigned appellate
Counsel about that issue?
A. I do not recall any discussion, no.
Q. Do you have any knowledge or information indicating
that there was a tactical or strategic decision not to raise the issue of
denial of continuance?
A. No.
Q. Drawing your attention to point 2C like in Charley,
the allegation in the Petition for Post-Conviction Relief that there was a
limitation imposed on the defense in cross-examination of a prosecution
eyewitness. Do you have that?
A. May I have just a moment.
Q. 2C.
A. Yes, I have that.
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Jeremy Gelb, Esq. - Direct
Q. That was an allegation that the cross-examination of
eyewitness Robert Chobert with respect to his prior record was not
properly raised by trial Counsel. Did you read that back in 1985 or '86 in
the record?
A. No, sir.
Q. Were you asked to research that issue?
A. No, I was not.
Q. Did you have a discussion with appellate Counsel about that
issue?
A. Not to my recollection, no.
Q. Do you have any knowledge or information as to why that issue was
not raised in the appellate brief?
A. No, I do not.
Q. Drawing your attention to point 2B like in boy, the
allegation that the cross-examination of defense -- I'm sorry -- the
allegation that the defense was barred from eliciting testimony from
defense witness Veronica Jones: Did you read the trial record on that
issue?
A. No, sir.
Q. Did you research that issue?
A. No, I did not.
Q. Did you discuss it with appellate Counsel?
A. No.
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Jeremy Gelb, Esq. - Direct
Q. To your knowledge was there any tactical reason not to raise it?
A. No.
Q. Drawing your attention to the allegation in point 3 of
the Petition that Mr. Jamal's absence from two conferences in camera were
improper: Did you read the trial record respecting the two in camera
conferences?
MR. GRANT: Objection, Your Honor, as to that question. I
believe that's been decided on appeal directly. As to whether or not the
right of self representation allows one to absent themselves from sidebar
conferences, from the room generally based on their conduct.
THE COURT: Has that already been resolved by the Supreme Court?
MR. WEINGLASS: No, Your Honor, that issue was never raised in the brief
nor addressed in the Supreme Court's decision.
MR. GRANT: If that is the case I will withdraw my objection.
THE COURT: Okay.
THE WITNESS: Mr. Weinglass, my answer would be the same
with respect to that issue. I did not research it, and I do not have
any
Page 222.
Jeremy Gelb, Esq. - Direct
recollection of discussing that with appellate Counsel.
BY MR. WEINGLASS:
Q. Respecting point 4 of the Petition, the ineffective
assistance of Counsel in the guilt phase of the proceeding: Did you read
the trial record of the guilt phase to determine whether or not that was a
viable issue on appeal?
A. I'm sorry, point 4?
Q. Point 4 in the brief. In the -- I'm sorry, the Petition.
A. No, my answer is no, sir, I did not review that.
Q. Did you research that issue?
A. Not, not in the context of this appeal, no, sir.
Q. And you neither had any discussion with appellate
Counsel about it, nor were you aware of any tactical decision not to
include it?
A. I am not.
Q. I will ask you the same questions with respect to
point 5 in the Petition. That deals with the question of Mr. Jamal losing
his right of self representation. Now, I am not asking you whether or not
you read the trial record or researched the
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Jeremy Gelb, Esq. - Direct
question of whether or not the Court improperly stopped
him from asking voir dire questions that occurred at one point. Then at a
later point subsequently the Court did strip Mr. Jamal of his right to
represent himself. Did you read the trial record with respect to the
second issue?
A. I don't recall reading the trial record. I recall
there were some discussions with appellate Counsel with respect to this
issue. It involves, I think the leading case is Foretta. But I just cannot
say whether it was with respect to the earlier point in the trial, the
Jury selection, or at a later point in the trial. And I did not
specifically research that particular point. Beyond that I don't have any
specific recollection one way or the other.
Q. In your discussions with appellate Counsel, was there
any discussion of whether or not to include that issue as a tactical
matter in the appellate brief?
A. Not that I recall.
Q. Referring you to point 6 in the Petition. This has to
do with the question of Mr. Jamal's absence in the trial. Do you recall if
you read any of the prior record to determine when and under what
circumstances Mr. Jamal was absented from the trial?
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Jeremy Gelb, Esq. - Direct
A. I personally did not review that aspect of the record.
I believe I was aware that Mr. Jamal was absented from the trial at
various portions during the trial.
Q. Did you research that issue?
A. I did not personally research that issue, no.
Q. Did you have any discussions with appellate Counsel
with respect to that issue, and particularly whether or nat there was any
tactical or strategic decision not to include it in the trial brief? I'm
sorry, the appellate brief.
A. There was no tactical discussion or decision that I am aware of,
no.
Q. Directing your attention to point 7 of the Petition,
the allegation that the prosecution engaged in improper guilt-phase
summation: Did you, Mr. Gelb, have opportunity to read the trial record of
the guilt-phase summation?
A. I believe I did, yes.
Q. Did you research any issues pertaining to improper
argument in the guilt-phase summation? Referring now to the guilt-phase
summation.
A. I'm sorry, may I just have a moment?
Q. Sure.
A. I think that I'm...
Page 225.
Jeremy Gelb, Esq. - Direct
(Pause.)
I do not believe that I did review the guilt-phase summation. I mis
heard you, I think.
Q. Right. Was it that you were referring to the penalty-phase
summation?
A. Precisely, yes.
Q. Which you did review?
A. Yes, I did.
Q. And it was raised on the appeal?
A. Yes, it was.
Q. Right. Drawing your attention back to the guilt-phase
summation: You are indicating you did not review that part of the
record?
A. I don't believe so, no.
Q. Did you research the question of improper comment by the prosecutor
in the guilt-phase summation?
A. I don't believe so, no.
Q. Was there any discussion between yourself and assigned
Counsel as to whether or not there was any tactical reason for omitting it
in the appellate brief?
A. Not that I recall, no.
Q. Drawing your attention to point 8 in the Petition, which alleges,
among other matters, the
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Jeremy Gelb, Esq. - Direct
allegation that a note which the Court received from the
Juror was improperly handled: Did you read the trial record on that
issue?
A. No, I did not.
Q. And did you research that issue?
A. No.
Q. And was there any discussion between you and appellate
Counsel as to any tactical reason why that issue was not raised?
A. No.
Q. Lastly, I want to come to the penalty-phase summation
by the prosecutor. Do you recall, I think you indicated that you did read
that?
A. I believe I did, yes.
Q. And there were portions there that did make it into the appellate
brief.
A. That is the Caldwell argument that I referred to earlier, yes.
Q. And also the argument that later became known as the Dawson
argument?
A. That's correct, yes.
Q. Both of those --
A. That is correct.
Q. -- are in the appellate brief?
A. Yes.
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Jeremy Gelb, Esq. - Direct
Q. Now, in point 14 of the Petition the Petitioner
alleges a number of other allegations of improper argument by the
prosecution. I assume you have looked at those?
A. I did before, yes.
Q. Did you research any of those issues?
A. I can only answer the question in the following way. I
was, of course, familiar with the issue of improper argument. We raised
the Caldwell slash Baker argument. We did not raise the concerns that you
have indicated in your Petition. I can not sit here and give you a reason
one way or the other at this point in time for not raising that issue --
those issues. I have no recollection of coming up with an argument similar
to the argument that you have made. My only recollection is that I was
focused on the Caldwell argument with respect to Mr. McGill's summation
and I really can't say one way or the other whether there were other
elements of his speech that were considered in a prosecutorial misconduct
argument.
Q. In any event, Mr. Gelb, can you recall whether or not
there was a discussion with assigned Counsel in which it was decided not
to raise any other issues which have been raised now in the Petition
for
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Jeremy Gelb, Esq. - Direct
tactical reasons?
A. I don't recall any such discussion, no.
MR. WEINGLASS: May I have just a moment?
(Discussion was held off the record at
this time
between Defense Counsel.)
(Pause.)
BY MR. WEINGLASS:
Q. I wanted to draw your attention also to point 15 in the table of
contents.
A. Of your Petition?
Q. Yes. And I will read it into the record. Mr. Jamal was
sentenced to death without the benefit of adequate assistance of Counsel
in the penalty phase.
A. Yes, sir. If your question is the same as the previous
questions?
Q. Yes.
A. I do not, I do not recall a specific discussion or
discussions with regard to Mr. Jamal's representation to the Jury in the
penalty phase. And therefore I don't recall a conscious decision one way
or the other as to whether or not that issue should have been raised. I
see the argument that you have outlined in your Petition and it just does
not ring a bell with me as having been a point of discussion.
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Jeremy Gelb, Esq. - Direct
Q. You don't recall researching the issue of ineffective assistance of
Counsel in the penalty phase?
A. I don't recall researching that issue, no.
Q. Now, there is another issue I would like to call to
your attention, it is now known as the Simmons issue. Are you familiar
with that, Mr. Gelb?
A. I know a couple of different Simmons cases, Mr. Weinglass. I am not
sure which one you mean.
Q. This is a question of whether or not a jury ought to
be advised by the court in it's instruction as to the meaning of life
without parole. Was that issue researched by you?
A. Not in connection with this brief, no. No, I had
occasion to research it sometime later but not in connection with this
appeal. I am familiar with the argument; I do not recall any discussions
with regard to that issue in connection with this appeal.
Q. To be fair, the Simmons case came down years later?
A. I seem to recall that, yes.
Q. But what you are indicating is that it wasn't anticipated?
A. It wasn't anticipated or discussed, to the best of my
recollection.
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Jeremy Gelb, Esq. - Cross
MR. WEINGLASS: Thank you very much, Mr. Gelb. I have no further
questions.
- - - - -
CROSS-EXAMINATION
- - - - -
BY MR. GRANT:
Q. Good afternoon, Mr. Gelb.
A. Good afternoon, Mr. Grant.
Q. In order to perfect Mr. Jamal's appeal --
THE COURT: I don't know, is that microphone working?
MR. GRANT: Yes, Your Honor.
BY MR. GRANT:
Q. In order to perfect Mr. Jamal's appeal, in order to
insure that all issues and concerns of appellate Counsel as well as Mr.
Jamal were raised, if I am not mistaken, numerous extensions were granted
by the Supreme Court, with the agreement of the Commonwealth in this case,
to file the appeal; isn't that correct?
A. Mr. Grant, I haven't checked that, I would defer to
the record. It would not surprise me in the least. I recall that this was
a very large project of the office and that appellate Counsel frequently
did request and receive extensions of time without
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Jeremy Gelb, Esq. - Cross
opposition from the Commonwealth, that is correct.
Q. And it was large in some dimension because not only
was there prior appellate Counsel prior to the appellate Counsel that you
assisted, but there was also an amicus curiae brief submitted by Mr. Carl
Baker on behalf of the Defendant; correct?
A. I recall that, yes.
Q. And the Defendant filed his own pro se appellate brief, did he
not?
A. He did.
Q. And was that with or without knowledge of appellate Counsel, if you
know?
A. That was with knowledge, with knowledge of appellate Counsel.
Q. And thereafter appellate Counsel requested the Supreme
Court to allow the unscheduled brief filing, and the Commonwealth agreed
that the brief should be accepted and reviewed by the Court along with
appellate Counsel's brief and the amicus curiae brief; correct?
A. I believe that is correct, Mr. Grant. I would have to
defer to the record on that as well. But I believe that is correct,
yes.
Q. And I know you are going back years, and I know you are not primary
Counsel, nevertheless, from
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Jeremy Gelb, Esq. - Cross
your recollection, you do recall that Mr. Jamal
represented himself as appellate Counsel, Mr. Baker as a friend of the
Court representing Mr. Jamal, your firm representing Mr. Jamal, and all
filed briefs of some sort, or petitions; is that correct?
A. That is correct.
Q. Now, would you explain for the record what an amicus brief is, what
it constitutes?
A. An amicus brief as I understand it is a friend of the
court brief. And it, I believe that it arose in that Mr. Baker on behalf
of an organization, the name of which I'm sorry I don't recall, felt there
was a very small, one or two of the issues in particular that were before
the Court. And I believe under the Rules of Appellate Procedure one can
petition to file an amicus brief. I believe such a petition was filed, I
believe the Supreme Court of Pennsylvania granted the petition. I also
have a very strong recollection being present at argument before the
Supreme Court, and Mr. Baker did in fact argue in support of the position
raised in the brief. As did appellate Counsel, obviously.
Q. Does it refresh your recollection that Mr. Baker
represented the National Conference of Black Lawyers in arguing as a
friend of the Court at that
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Jeremy Gelb, Esq. - Cross
time?
A. I believe that is the organization, yes. I had known
Mr. Baker prior to that time in a different context and that's why I was
blanking on the name of this particular organization.
Q. Do you recall -- strike that. Local Counsel assisting
Mr. Weinglass and his associates is David Rudovsky. Do you recall Mr.
Rudovsky collaborating with Mr. Baker and representing the American Civil
Liberties Union and offering parts of and signing that brief?
A. I don't have a recollection one way or the other, I don't.
Q. Okay. This case was not only argued in the Supreme Court, but the
petitions were filed for reargument --
A. That is correct.
Q. -- in the State Supreme Court?
A. That is correct.
Q. And thereafter a petition for certiorari before the United States
Supreme Court was requested and denied?
A. That is correct.
Q. And re-requested?
A. It could be, I'm not sure.
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Jeremy Gelb, Esq. - Cross
Q. By Mr. Jamal pro se?
A. I'm not sure. It could be.
Q. And denied?
A. I assume it was denied, yes.
Q. Mr. Gelb, I just have a few questions. In preparation
in collaboration with appellate Counsel, did you receive the trial file
from trial Counsel? When I say you I mean your offices.
A. Yes, the answer is yes.
Q. And did the trial file contain the transcript of the
proceedings in the Court below? When I say that I mean notes of
testimony.
A. I know what you are referring to. I don't remember how
my office got the notes of testimony. I seem to recall that we received
the notes of testimony at an earlier point in time. And that we met later
with Mr. Jackson and received the contents of his file. But I don't
remember which happened first, but obviously we did get a full set of
notes of testimony.
And we also had, we also, I remember, had a meeting, at
least one meeting with Mr. Jackson, and Mr. Jackson did bring a rather
voluminous file of his own. Which to the best of my recollection contained
discovery and some of his motions and
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Jeremy Gelb, Esq. - Cross
things of that nature.
Q. And when Mr. Jackson brought the file, did he bring it to appellate
Counsel's offices?
A. Yes.
Q. And did he just drop the file off or did a discussion
ensue between appellate Counsel, perhaps yourself, and Mr. Jackson about
the viability of any of the claims that appellate Counsel was
considering?
A. I was only present during one meeting and I was only
there for maybe 18 minutes. And during that 10 minutes there was a general
sort of discussion about the trial and about some of the issues in a very
generalized form. I had excused myself in that meeting, I had another
court appearance, and Mr. Jackson and appellate Counsel stayed in the
office and spoke, as I understand it, for some time and discussed whatever
they discussed: I was not there. I can only assume -- well, I can't
assume. I don't know what they discussed because I wasn't, I wasn't
present. But I understand that there was a rather lengthy conference
between them at that time and, I believe, on a subsequent occasion as
well.
Q. And do you know of your own knowledge if the second meeting also
took place at appellate Counsel's
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Jeremy Gelb, Esq. - Cross
offices?
A. I don't recall that, I was not present.
Q. Do you recall how many times Mr. Jackson and appellate Counsel
met?
A. I believe it was twice.
Q. Now, when you say that you were assigned particular
areas to research and then would have legal discussion with appellate
Counsel, would you review appellate Counsel's legal research?
A. Well, it was sort of a joint effort in that regard. My
recollection is that appellate Counsel had already done some research with
respect to some of the issues that were raised in the appellate brief, and
I was asked to follow up. As often happens when you are preparing an
appellate brief, a lot of the discussions about organization, a lot of the
discussions about arguments that can be made, would be argument. So my
recollection is it was sort of a joint effort. I didn't research all of
the issues but I do recall researching some of the issues.
Q. Twenty points of error, 20 points of error from the
trial proceedings were addressed by the Pennsylvania Supreme Court in the
case of Commonwealth versus Mumia Abu-Jamal. Did appellate
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Jeremy Gelb, Esq. - Cross
Counsel, to your knowledge, review the transcript of the proceedings in
order to raise any of these claims?
A. Yes.
Q. Did you review any of the transcripts of the
proceedings in order to work on the issues that were assigned to you?
A. Yes, I did. Portions of the transcript I did review.
And appellate Counsel did review, if not the -- well, I believe the entire
transcript. I could only go based upon my observations.
Q. Now, portions of the legal issues were assigned to you, one of which
included the Caldwell issue?
A. Yes.
Q. You keep saying. For the record, sir, would you state what that
issue is in brief?
A. Well, this was an issue that was raised in the
appellate brief. Caldwell was a decision of the U.S. Supreme Court which
went to the question of whether the jury is impressed properly with the
magnitude of it's duty in imposing a death sentence. And the argument is
that if the prosecution makes argument to the jury which attempts to
mislead the jury that it's decision is not in fact final, and misleads the
jury
Page 238.
Jeremy Gelb, Esq. - Cross
into believing that what they do is merely a
recommendation and it is really not that important then the jury has in
essence been deprived responsibility to decide life or death.
Q. And you did raise that issue and it was decided upon by the Supreme
Court and rejected; correct?
A. That is correct.
Q. Now with respect to whether or not the Simmons issue
could have been predicted by yourself. And the Simmons issue is whether or
not the jury should be told that life without parole is what a life
sentence is. You realize, do you not, sir, that that deals with the
situation where the aggravating circumstance alleged is the future
dangerousness of the defendant, and when a jury is considering that they
may consider that the option to future dangerousness is total and complete
incarceration forever, and therefore they should be told that? Now --
A. I recall that is the context in which Simmons was
decided. I think the flip side of the Simmons argument is of course what's
good for the goose is good for the gander. And I think that the issue
there becomes if under some circumstances the jury knows that life isn't
life, then perhaps under other
Page 239.
Jeremy Gelb, Esq. - Cross
circumstances the jury should know that life is life. I
agree with you, it arrives under a somewhat different factual context. But
I submit that it is an argument that could be made and I think has been
made in the context of impressing the jury with the, with it's
responsibilities in determining life or death. And in letting the jury
know that life, at least in this Commonwealth, really means life.
Q. The aggravating circumstances in this case were, A,
the killing of a police officer in the performance of his duty, and B,
reckless endangerment to another individual during the course of this
killing. If I am not mistaken, the Jury rejected the reckless endangerment
-- it happened to be the Defendant's own brother who was in the area at
the time -- and they found the aggravating circumstance outweighed any
mitigating circumstance, if they found any. So the future dangerousness
issue was not before them and therefore Simmons would not legally apply
even if it were the law in 1982; isn't that fair to say?
A. I think that the way that you have couched the Simmons
argument in the way that Simmons was first decided I would have to agree
with you. What I am suggesting to you is that the rationale of Simmons
I
Page 240.
Jeremy Gelb, Esq. - Cross
believe can be and I believe it has been extended to
cover the flip side, the converse, if you will. But I agree with you in
the way that Simmons was decided, yes, there was no issue with respect to
future dangerousness. And in that limited sense, I don't believe that
issue could have been raised.
Q. Now, Mr. Weinglass asked you if you worked on any
research regarding whether or not the Defendant was sentenced to death
without the adequate assistance of Counsel at the penalty phase. And you
indicated that you did work on the penalty phase in some regard on some
issues, such as Caldwell. During the course of doing your research, sir,
did you read the record, the trial record of the penalty phase, the
arguments, the evidence, if any, that was taken?
A. I do recall reading the closing arguments. And I do
recall reading the text I believe of Mr. Jamal's statement. And I do
recall reading Mr. McGill's cross-examination of Mr. Jamal.
Q. During the course of your research did you determine
based on your years of criminal practice that Mr. Jackson ineffectively,
ineffectively assisted Mr. Jamal at that phase of the proceedings?
A. I don't recall discussing that particular issue with appellate
Counsel. Nor do I recall
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Jeremy Gelb, Esq. - Cross
treating the issue as such. I do not believe that that
was a question, frankly, that was addressed by myself or by appellate
Counsel.
Q. You mean to tell me when you are looking at the issue
of when a capital sentence has been imposed, you don't look to see whether
or not the defendant received adequate representation?
A. Well, I think that's always in the back of one's mind
when you review any record, capital or non-capital. Because the first
question is did the defendant receive the process that he was due. I
can't, I just can't sit here and recall that an issue was discussed with
respect to adequacy of Counsel in the, in the context that we know it
today, the ineffective assistance cases that have been decided.
My strong recollection, as I said, is in focusing in on
the comments of Mr. McGill. And again, I recall, I believe there was an
issue raised with respect to whether Mr. McGill should have been permitted
to cross-examine Mr. Jamal. But I do not think that was raised under the
guise of ineffectiveness.
Q. Mr. Gelb, perhaps you didn't consider it and you
didn't discuss it with appellate Counsel. Can you state here with
certainty that that wasn't
Page 242.
Jeremy Gelb, Esq. - Cross
considered by appellate Counsel, the ineffectiveness claim, as opposed
to guilt, in the sentencing phase?
A. No, I can't. I can't sit here and say that.
Q. Now, appellate Counsel raised the issue which we now
know in shorthand terms as the Batson claim. That is the racially-based or
non-neutrally based motivation for exercising peremptory challenges. Now,
that was raised to the Supreme Court by appellate Counsel, was it not?
A. It was.
Q. Did you work on that issue?
A. No, I did not.
Q. And there was a request by appellate Counsel for Mr.
Jackson to submit an affidavit in support of the trial record which was
forwarded to the Supreme Court; do you recall that?
A. I do not recall that, no.
Q. Did you have any discussions with appellate Counsel regarding the
Batson claim?
A. Very, very generalized discussions. I was not asked to
research that. I was aware of the fact that appellate Counsel was
researching it. I was aware of the fact that appellate Counsel was
engrossed in a dissection of the apartheid record. It is, frankly,
something that I did not get involved in.
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Jeremy Gelb, Esq. - Cross
Q. Appellate Counsel was engrossed in a dissection of the voir dire
record?
A. Yes.
Q. And would it be fair to say, sir, where you have the
record of what happened, at a trial, and that forms the basis of making
any claims that you want to make on appeal, but you go outside the record,
and you go back to trial counsel and you get an affidavit from him, would
it be fair to say that that, practically speaking, insinuates that the
record in and of itself was insufficient to raise the issue without
external evidence?
A. That would certainly stand to reason, yes.
Q. Now, at the time that Mr. Jamal was tried, Batson
versus Kentucky, a Supreme Court holding, had not come into being at that
point in time; is that correct?
A. I don't recall, Mr. Grant, I would have to check.
Q. Well, I will only say that the Supreme Court holding was published
in 1984; Mr. Jamal was tried in 1982.
A. Yes, sir.
I believe -- pardon me, sir. I believe Batson according to the brief
here was
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Jeremy Gelb, Esq. - Cross
decided in '86, actually.
Q. '86, okay, that is even later on?
A. Yes.
Q. And that is at or about the same time that you filed your appeal in
this instance?
A. I believe that the, yes, I believe the brief was filed in 1986, that
is correct.
Q. So that was hot off the press when you filed that, when Counsel,
appellate Counsel filed the claim?
A. I believe that's correct.
Q. And did that have anything to do with why Counsel had
to go to Mr. Jackson to have him recreate something that did not appear in
the record itself?
A. I just don't have any recollection of that, Mr. Grant. I don't know
one way or the other.
Q. You don't know that appellate Counsel did not consider
issues that were not raised and dismissed them as lacking merit, do
you?
A. No, I do not know that. I... I have tremendous regard
for appellate Counsel. And I've known appellate Counsel's work for a good
long time. And I think Counsel's work has been uniformly excellent over
the years. So I can't say one way or the other what was in appellate
Counsel's mind at
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Jeremy Gelb, Esq. - Cross
that time. Unless there was some sort of discussion with
me so that I could understand what the thinking was, I just don't
know.
Q. You were asked and you responded to Counsel that there
were four issues that you felt and appellate Counsel felt were very strong
issues on appeal: Namely, the prosecutorial misconduct issue under
Caldwell; the prosecutorial misconduct apparently with respect to closing
argument; cross-examination of a character witness, Sonia Sanchez; and the
alleged questioning of Defendant's political beliefs, which Counsel
alleged violated the First and Fourteenth Amendments of the Constitution
of the United States, and thereafter the Fifth Amendment and Pennsylvania
Constitution. All those claims were rejected, were they not, by the
Supreme Court?
A. Yes, they were.
Q. And certiorari was denied by the U.S. Supreme Court on all those
issues?
A. Yes.
Q. Correct?
A. Yes.
Q. Now, you said that you did not review the entire trial record. Can
you say that appellate
Page 246.
Jeremy Gelb, Esq. - Cross
Counsel did not?
A. No, I can not say that.
Q. And you said that you did not meet with Mr. Jamal. Can you say that
appellate Counsel did not?
A. No, I can say to the contrary: Appellate Counsel did meet with Mr.
Jamal.
Q. You also testified on direct examination, Mr. Gelb,
that of the issues which were not researched, and not raised in the brief,
you can't think of any tactical or strategic reason why they would not be.
You are not saying that they were not considered and thought not to be
worthy of appellate merit, are you?
A. No, I'm saying I don't know one way or the other, Mr.
Grant. I don't know whether they were considered and rejected or whether
they were simply not considered. I have no way of knowing one way or the
other.
Q. Now, Counsel raised a number of particular areas and
asked you if these matters were considered by you or by appellate Counsel,
and if not was there a strategic or tactical reason why not. And he talked
about the prosecutor's guilt-phase closing argument.
MR. GRANT: And I have, for the benefit of the Court, a document which I
would
Page 247.
Jeremy Gelb, Esq. - Cross
move to mark as Commonwealth Exhibit Number 10 in this
matter. It is a 260 page photocopy of the opinion of the Pennsylvania
Supreme Court decision in this matter authored by Justice Zappala.
(Pennsylvania Supreme Court opinion was
marked
Commonwealth Exhibit C-l0 for identification.)
BY MR. GRANT:
Q. At head note number 12, sir, it says that,
essentially, the prosecutor's guilt-phase closing argument about the
possibility of subsequent appeals and reversal of a capital murder
conviction didn't deprive the Defendant of a fair trial. So in fact that
issue was raised, though not by you but by appellate Counsel; correct?
A. I believe that's correct. That claim may very well
have been raised with respect to both the guilt phase and the penalty
phase.
Q. And with respect to the penalty phase, head note 14,
prosecutor's penalty-phase closing argument about appeals in capital
murder prosecutions and about the absence of execution for more than 20
years of a person in Pennsylvania at that time did not create a risk that
the Jury would abdicate it's
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Jeremy Gelb, Esq. - Cross
responsibility to decide the appropriateness of the death
sentence. And that is part and parcel of the Caldwell issue in reverse,
actually, because if they abdicated their responsibilities and not
considered life as the alternative, that's what Caldwell is all about,
isn't it, essentially?
A. Well, let me respond this way. I don't know what you mean by the
reverse.
Q. Okay.
A. In your question. That is the part that I don't
understand, I don't follow. And I haven't, I have a copy of the slip
opinion of the Supreme Court's decision but I don't have the head notes
here. I'm not sure I follow your question.
Q. Okay. I will withdraw that question. The issue of the
appropriateness of the prosecutor's argument as to the death sentence was
upheld by the Pennsylvania Supreme Court, cert denied by the U.S. Supreme
Court; correct?
A. That is correct.
Q. Evidence as to whether -- head note 9. I know you don't have your
brief allocated that way.
A. Right.
Q. But that's why I am reading it for you, for the benefit of you.
Evidence as to whether
Page 249.
Jeremy Gelb, Esq. - Cross
Defendant's character witness had spoken or written
favorably about convicted killers of police officers was relevant in the
prosecution for murder of police officer to indicate that witness had
enmity towards police officers or to indicate whether community which
referred to the Defendant as a peaceful man viewed police officers as
oppressors and gave favorable acknowledgement to convicted police
killers.
Now, that again dealt with the issue of cross-examining
the character witness Sonia Sanchez and that was raised by the appellate
Counsel in this case, was it not?
A. Yes, it was.
Q. Head note number 5. The right of self representation
is not absolute right for defendant to proceed as defendant sees fit. Pro
se defendant is subject to the same rules of procedure as represented
defendant.
So that the issue of the Defendant's right of self
representation was addressed at least in some measure, was it not?
A. I believe that is correct. I believe it was raised with respect to
the Jury selection issue only.
Q. And in that regard: Defendant had no right to
Page 250.
Jeremy Gelb, Esq. - Cross
engage in voir dire questioning whether or not he was
represented by Counsel, and thus the trial Court's decision to conduct
voir dire himself did not deprive pro se defendant of right of self
representation.
So that was more specifically dealt with by the Pennsylvania Supreme
Court in this decision in this case?
A. That was the basis for the Foretta claim that was
raised on direct appeal, and that was how the Supreme Court dealt with it,
yes.
Q. And Foretta is a California case that deals with the right of a
person to represent themselves, is it not?
A. The leading case.
Q. And head note 6: The manner in which voir dire is
conducted is left to the discretion of the trial judge. That is the
inception of the issue raised and then the Court proceeded to discuss the
issue of self-representation at voir dire and self-representation
altogether.
Now, those issues were all raised by appellate Counsel,
or by you and the appellate Counsel, and ruled on by the highest Court of
this State; correct?
A. Yes, they were.
Page 251.
Jeremy Gelb, Esq. - Cross
Q. So you don't have to have a tactical or strategic reason why those
issues weren't raised?
A. No, sir, those issues were raised. And I didn't
believe Mr. Weinglass was asking me questions with regard to those
particular issues. Those were the ones that were raised and,
unfortunately, rejected.
Q. I just have a couple more questions, Mr. Gelb. Did you
personally have any discussions with Mr. Jackson about his effectiveness
as a trial lawyer in this case?
A. No, I did not.
Q. From your review of the record, though you did not
raise that claim, did you form any legal opinion as to whether such a
claim would have been viable had it been raised?
(Pause.)
A. Well, to the extent that Mr. Jackson's representation,
or the question of his ineffectiveness, was bound up in the issues that
were raised on direct appeal, then I would say if they were not preserved
or if they were not raised properly that yes, I would contend that he was
ineffective. However, it's my recollection that there were a number of
issues that were raised on
Page 252.
Jeremy Gelb, Esq. - Cross
direct appeal where the issues, the merits of the issues
were raised in the absence of an ineffectiveness allegation.
So what I am trying to convey here: I know that in
reviewing the Supreme Court's decision, that there were I believe two
instances -- I believe the Batson claim was one, and there was one other
-- where the Supreme Court agreed to review the merits of the claims,
notwithstanding the fact that there had been no objection at trial. And to
the best of my recollection, had been no post-verdict motion as well.
Q. And you could well imagine that since it didn't come into being for
another five years, sir?
A. Well, in the Batson situation, that could well be.
Although there were decisions that were decided before Batson. But, but
the point I am trying to make here is that capital appeals have what's
called a relaxed waiver standard. And that standard was specifically
referred to in the opinion. Under normal-circumstances, at least the
practice back then was that if appellate Counsel did not assign trial
Counsel's ineffectiveness for failing to object, or failing to file a
post-verdict motion, then the issue was deemed waived. And in these two
particular
Page 253.
Jeremy Gelb, Esq. - Cross
respects that I recall in reviewing the Supreme Court's
decision, the Supreme Court invoked the waiver standard so it could
address the merits of the issue.
I know that sounds like a roundabout way of answering
your question, but Mr. Jackson's ineffectiveness could have been assigned
with respect to those two issues.
Q. But the Supreme Court, nevertheless, dealt with both of those
issues?
A. That is correct, the Supreme Court did address both
those issues under the relaxed waiver standard, that is correct.
Q. Because in capital penalty litigation when a man's
life is on the line, the ineffectiveness of Counsel should not be
permitted to keep valid claims from before the highest tribunal of the
State; is that the idea?
A. I think that's the idea. And I think it's a, I think it's the right
idea.
MR. GRANT: Thank you very much, Mr. Gelb.
MR. WEINGLASS: I just have a few follow-up questions.
- - - - -
Page 254.
Jeremy Gelb, Esq. - Redirect
REDIRECT EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. Mr. Grant asked you about the Baker case and the
prosecutorial error or misconduct in undermining the importance of the
jury's having to confront the fact that they are composing a death
penalty. You recall questions to that effect?
A. Yes.
Q. From Mr. Grant?
A. Yes.
Q. Now, do you recall -- and you said you read the record
on this issue -- that Mr. McGill argued, paraphrased to the Jury that Mr.
Jamal would have appeal after appeal after appeal?
A. Yes.
Q. Do you recall who argued the case for the Commonwealth in the Baker
case?
A. Mr. McGill.
Q. The very same prosecutor?
A. That is correct.
Q. And in that case he said the defendant would have appeal after
appeal after appeal; is that right?
A. In at least two contexts, I believe.
MR. GRANT: I object and move to
Page 255.
Jeremy Gelb, Esq. - Redirect
strike any references to any case but this case. If they
are attempting to show a pattern for prosecutorial misconduct they could
lay the foundation with the conduct itself and not through counsel who was
assisting appellate Counsel and didn't participate in that case. And I
move to strike it.
MR. WEINGLASS: Your Honor, the issue immediately before
the Court is this. Mr. Gelb is assisting appellate Counsel. He reads the
case law. He reads the Baker case.
THE COURT: He didn't argue before the Supreme Court.
MR. WEINGLASS: No, appellate Counsel argued.
THE COURT: Well.
MR. WEINGLASS: And when the Commonwealth representative, as I
understand it -- I wasn't there --
THE COURT: Wasn't that decided by the Supreme Court?
MR. GRANT: Yes.
MR. WEINGLASS: It is the Baker case.
THE COURT: Well, they have decided it so what is the issue now?
Page 256.
Jeremy Gelb, Esq. - Redirect
MR. WEINGLASS: The issue is was Mr. Gelb alerted to the
fact that the Pennsylvania Supreme Court would reverse a case if the
prosecutor argued to a jury that the defendant would have appeal after
appeal after appeal.
THE COURT: I know that, but --
MR. WEINGLASS: And if he was alerted to that fact.
THE COURT: -- what difference does it make: The Supreme
Court considered that, didn't they, and made a decision on it?
MR. GRANT: Yes.
MR. WEINGLASS: Yes.
THE COURT: So what are you arguing it a second time for?
MR. WEINGLASS: No, we are, that's preserved in this record.
THE COURT: Preserved?
MR. WEINGLASS: Yes.
THE COURT: The Supreme Court already ruled on it. Whether
it was he or appellate Counsel who argued that before the Supreme Court,
the Supreme Court considered it and made a decision.
MR. WEINGLASS: Correct. I have no
Page 257.
Jeremy Gelb, Esq. - Redirect
quarrel with that.
THE COURT: Well, then why are we arguing it a second time?
MR. WEINGLASS: Well, what we are getting at is Mr. Gelb's
performance as appellate Counsel. He sits down to review the record in
this case. He sees that the prosecutor in this case argued to a Jury using
the exact same words that the Pennsylvania Supreme Court reversed on in an
earlier case.
THE COURT: I know, and the Supreme Court decided that in
this very case and they considered it. And they said it's different.
MR. WEINGLASS: I am not making myself clear to the Court. As Mister
--
THE COURT: I am not making myself clear to you.
MR. WEINGLASS: As Mr. Gelb sat down to do his research
before Mr. Jamal's case got to the Supreme Court, was he paying attention
to the fact that in an earlier --
THE COURT: Let's assume that he wasn't. What difference does it make if
the Supreme Court considered it?
MR. WEINGLASS: It makes a difference
Page 258.
Jeremy Gelb, Esq. - Redirect
in terms of highlighting his work, his preparation on this case.
THE COURT: It doesn't make any difference if the Supreme
Court has already decided that issue. And the Supreme Court a lot of times
decides issues that are not brought up by appellate counsel because they
review the whole record themselves.
What I am saying to you: If they reviewed this and made a
decision on it, it's not proper for me to consider it again.
MR. WEINGLASS: No, Your Honor, I have to say this to the
Court: We are not asking the Court to review that. Nowhere are we asking
this Court to review the Supreme Court's decision on the Caldwell issue.
That's been decided by the Pennsylvania Supreme Court. You are right, it's
preserved. Of course we will raise it in an appropriate court if and when
we have to get there. I am not re-raising that before this Court. It is
not in our Petition at all. We are not re-raising the Caldwell case before
this Court.
MR. GRANT: Well, can we move on, Your Honor.
Page 259.
Jeremy Gelb, Esq. - Redirect
MR. WEINGLASS: It's been decided. But then we get to what
I was asking him about. Not that issue. I was asking him whether or not he
was aware of the fact that in the Baker case, which was reversed, the very
same prosecutor used the very same words and that led to a reversal.
MR. GRANT: I am objecting to the irrelevancy and move to
strike the answer because that is not the issue here. That's been decided
by the Supreme Court. Whether it was --
THE COURT: That's what I said.
MR. GRANT: Whether he had twin brothers, clones or what
have you, the issue was decided and it doesn't deal with the individual
--
THE COURT: That's what I am saying. I thought the Supreme
Court resolved that issue, so why are we going into it again?
MR. WEINGLASS: Okay. I will abandon that line of questioning.
THE COURT: I will sustain the objection.
MR. WEINGLASS: All right.
BY MR. WEINGLASS:
Page 260.
Jeremy Gelb, Esq. - Redirect
Q. Mr. Gelb, as an active practitioner in the appellate
courts on criminal issues, you indicated that you are aware and familiar
with what's called the relaxed waiver doctrine here in Pennsylvania?
A. Yes.
Q. And I think as a practitioner, you are now aware and
you were aware then that that is the rule in Pennsylvania?
A. Yes.
Q. Now, you were asked about the Batson claim and I just
briefly want to get into this. Based on Mr. Jackson's affidavit, appellate
Counsel presented to the Pennsylvania Supreme Court the fact that the
Commonwealth had peremptorily challenged 11 perspective jurors of
African-American background; is that correct?
A. Yes, that is correct.
Q. And do you recall that the Commonwealth came back in
their brief and they contended that the record indicates that the
Commonwealth only challenged eight African-American jurors and that
Darlene Sampson, Beverly Greene, and Alma Lee Austin do not appear on the
record to be African-American jurors?
A. I remember that there was a dispute over the
Page 261.
Jeremy Gelb, Esq. - Redirect
number of African-American jurors. I do not remember the
names but I do remember that there was a dispute between the Commonwealth
and the defense on that issue.
Q. And now directing your attention to D-10, which is the
opinion of the Pennsylvania Supreme Court, the Pennsylvania Supreme Court
bought the representation of the Commonwealth and decided the Batson issue
on the grounds that the Commonwealth representation was accurate and that
only eight African-American jurors were excused, not the 11 that your
affidavit from Mr. Jackson indicated. Isn't that correct?
A. I believe that's correct. I would need, I would need
to review that portion of the opinion, frankly, Mr. Weinglass. I didn't
review it but I believe that's correct.
Q. Yeah.
(Pause.)
A. I have the slip opinion where it indicated on page 7
that appears to be the Supreme Court's finding. That... the Court has
found eight.
Q. Eight?
A. As opposed to 11.
Q. Right. And now if it turns out that it wasn't
Page 262.
Jeremy Gelb, Esq. - Redirect
eight, that the Commonwealth under represented by 30
percent the number of African Americans they challenged off this Jury,
that that issue ought to be represented accurately?
MR. GRANT: Well, Your Honor --
BY MR. WEINGLASS:
Q. To the Pennsylvania Supreme Court?
MR. GRANT: Unless he is a Fellow Justice I really don't
care what he thinks. I think the law is clear as to what should be done.
Move to strike the answer if any was given.
THE COURT: Well, I don't think he made an answer but if
he did I will strike it. Leave that for the Supreme Court to decide.
MR. WEINGLASS: Your Honor, the only reason why I raise it is because we
have those three jurors.
THE COURT: He can't tell us, he didn't even argue before the Supreme
Court. He wasn't appellate Counsel, so.
MR. WEINGLASS: We brought before this Court the three jurors who were
not mentioned in the brief.
THE COURT: I know, I am saying he
Page 263.
Jeremy Gelb, Esq. - Redirect
can't give us his opinion.
MR. WEINGLASS: But we need, we have the need for a new
record so that the Pennsylvania Supreme Court will decide this case on
accurate information.
THE COURT: Counselor, argue that before the Supreme Court
if necessary, and if they think additional evidence must be taken they
will send it back down again. They do it all the time. All right.
MR. GRANT: Your Honor, on that point, just so that we
don't go too far afield, if Counsel wishes to bring in those jurors and
state on the record their race I think he should be entitled to do so. So
we can dispose of this issue once and for all so when it goes up on appeal
they will have Counsels' full and fair claims.
THE COURT: You mean all the --
MR. GRANT: No, the three people that he is talking about bringing in,
to say he is supplementing the record.
THE COURT: Well, if you have no objection, I am not going
to object. How do I know which three that they are talking about?
Page 264.
Jeremy Gelb, Esq. - Redirect
MR. GRANT: Well, I don't know, Judge.
THE COURT: Well, how do we know. That's in addition, you
would have to really bring in everybody, wouldn't we, to find out who they
were?
MR. GRANT: Well, so that Counsel doesn't go too far
afield, I think that's ripe for discussion between us to come to some kind
of resolution in this matter.
THE COURT: Well, if you can, fine. But I don't know how else you are
going to do it.
BY MR. WEINGLASS:
Q. Lastly, Mr. Gelb, I refer you to the brief that was
filed on behalf of Mr. Jamal in the Pennsylvania Supreme Court, Roman
numeral XIII, and Roman numeral XIV, which is pages 13 and 14 in Roman
numerals on the brief.
A. Yes, sir.
Q. And those two pages are denominated statement of the case, are they
not?
A. Yes.
Q. And that's the entire statement of the facts that were submitted to
the Pennsylvania Supreme Court?
Page 265.
Jeremy Gelb, Esq. - Redirect
A. That's it.
Q. And you read the Petition that was filed by Mr.
Jackson's attorneys in this instance? I'm sorry, Mr. Jamal's attorneys.
Have you read --
A. Your Post-Conviction Petition?
Q. Yes.
A. Yes, I have.
Q. And the statement of facts drawn from the record in the Petition now
is over 30 pages?
A. I haven't counted them, I will take your word for it.
It's much more voluminous. If I may: I recognize that this is not
denominated statement of facts, it is denominated statement of case. This
was appellate Counsel's practice. It included a procedural history and
factual history and it speaks for itself.
Q. All right. So appellate Counsel going to the
Pennsylvania Supreme Court on a death penalty case for Mr. Jamal did not
provide the Court with the statement of facts?
MR. GRANT: Objection, Your Honor. There is no
denomination statement of the facts in Pennsylvania. There is a statement
of the case. And there was one provided by Counsel. He just told him what
it was. And if he wrote
Page 266.
Jeremy Gelb, Esq. - Redirect
out 500 pages of opinion or 300 pages of argument, it
still comes down to the simple issue, that was done. I object to Counsel's
question. I object to leading.
BY MR. WEINGLASS:
Q. Is there anything in the brief that's denominated statement of
facts?
MR. GRANT: Objection.
THE WITNESS: No.
THE COURT: There is no such thing in Pennsylvania.
BY MR. WEINGLASS:
Q. Is there anything in the brief denominating statement of the
case?
A. Yes.
Q. And how many pages is the statement of the case?
A. I believe you just said it was two.
Q. Would you settle for a page and a half?
A. Page and three-quarters.
Q. Ah-huh. Page and three-quarters. And that contains the procedural
history of the case?
A. Yes. It contains some of the procedural history and it
contains a reference to some of the factual issues that appear in the
brief. It
Page 267.
Jeremy Gelb, Esq. - Redirect
certainly does not contain an exhaustive statement of the facts, or
statement of the evidence.
Q. And you say it contains two paragraphs of facts of the case?
(Pause.)
A. Well, I don't mean to quibble with you. It speaks for
itself, really. But what I am -- the answer is the first two paragraphs do
deal, are cursory synopses, if you will, of the facts. And a couple of
paragraphs that follow deal with things that occurred during the course of
the trial. I don't know whether you designate those factual or
procedural.
I think that there are three paragraphs that follow the
first two paragraphs that deal with things that occurred during the trial
which are germane to the brief. And that's it.
Q. Right. What I am getting at, to be short, Mr. Gelb, is
did Mr. Jamal's appellate Counsel inform the Pennsylvania Supreme Court
about what happened on the night of December 9th, 1981 on the streets of
Philadelphia at 4:00 a.m. in just two paragraphs?
A. Ahh, in the statement of the case, that's correct.
Q. That's all?
Page 268.
Jeremy Gelb, Esq. - Recross
A. That's correct.
MR. WEINGLASS: I have no further questions.
- - - - -
RECROSS-EXAMINATION
- - - - -
BY MR. GRANT:
Q. Mr. Gelb, was Counsel's statement of the case
sufficient for the Supreme Court of Pennsylvania to accept the brief and
to independently review the evidence and form their own opinion as to what
happened at 4:00 a.m. on December 9th of 1981 on the streets of
Philadelphia?
A. The brief was accepted for filing. The appeal was
docketed and the matter was presented for oral argument before the Supreme
Court. That's all I can say, I don't know what the Justices themselves
decided. But --
Q. Do you not know that in every capital penalty case the
Supreme Court of this State must enter upon an independent review of the
evidence?
A. Absolutely.
Q. And in this case they came to a conclusion and filed an opinion?
A. The Court certainly filed an opinion, yes.
Page 269.
Jeremy Gelb, Esq. - Recross
Q. And in it's opinion did it say under the Rules of
Appellate Procedure, Counsel's statement of the case should have been five
pages?
A. No.
Q. Four pages?
A. There was no statement whatsoever about the length of the statement
of the case.
Q. And when Counsel in their supporting affidavit through
a Mr. Steven W. Hawkins says that appellate Counsel filed no statement of
the facts, I assume he meant no statement of the case, that in fact was
--
MR. WEINGLASS: Objection for what Counsel assumed. Improper form of the
question.
BY MR. GRANT:
Q. Well, in Pennsylvania do they have a statement of the facts,
sir?
A. My understanding of the Rules is that it is denominated statement of
the case.
Q. So that the expert witness on behalf of the defense
who filed his expert opinion as to what lawyers should do in capital
penalty cases was not expert in Pennsylvania law?
A. I don't know whether he read the Rule recently, Mr. Grant. That's
about all I could say: I don't know.
Page 270.
Jeremy Gelb, Esq. - Redirect
- - - - -
REDIRECT EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. Mr. Gelb, in your view, was two paragraphs indicating
what happened on the night of December the 9th enough for the Court to
make a review of the sufficiency of the evidence?
MR. GRANT: I would object, Your Honor. I think the Supreme Court has to
decide that.
THE COURT: Yes. I will have to sustain that. I don't
think anybody could second-guess the Supreme Court. What they said they
said. They wrote an opinion.
MR. WEINGLASS: Your Honor --
THE COURT: After all, he was only an attorney for five
years. I don't think he could criticize what the Supreme Court has done.
But they didn't think it was necessary. And as Counsel has brought out:
The Supreme Court reviews the entire file, including all the testimony.
They don't need counsel to tell them what the facts are.
Page 271.
Jeremy Gelb, Esq. - Redirect
MR. WEINGLASS: Yeah.
THE COURT: They could read it themselves.
BY MR. WEINGLASS:
Q. Mr. Gelb, as an experienced counsel --
THE COURT: Well, he was not experienced, he was only assisting the
appellate Counsel.
MR. WEINGLASS: He is now.
THE COURT: Well, but he wasn't then.
MR. WEINGLASS: But I am asking him about now.
THE COURT: Well, what happens today is a different story. The important
thing is what happened back at that time.
MR. WEINGLASS: No, his opinion now, having read the
brief, and having been shown two paragraphs indicating what happened on
the night of December 9th, is that sufficient in his view in a death
penalty case to inform the Court that has to make a review of the
sufficiency of the evidence, or should there be more.
THE COURT: I don't think that's for him or anybody else.
MR. GRANT: He is incompetent to
Page 272.
Jeremy Gelb, Esq. - Redirect
answer that.
THE COURT: That's for the Supreme Court to decide that.
MR. GRANT: With all due respect.
THE COURT: If they needed his help they would have asked
for it. They don't need any help because they review the entire thing.
They have all the notes of testimony, they have everything and they review
it all. They don't need counsel down here, or me or you, to tell them what
they need.
MR. WEINGLASS: Your Honor, in the last two-and-a-half
days the Commonwealth's Counsel was invited to ask, and was allowed to
ask, I should say, Mr. Jackson if in his view, in his view, his
performance was effective.
THE COURT: Well, yes, because you were accusing him of
being ineffective. That's okay. Are you accusing the Supreme Court of
being ineffective?
MR. WEINGLASS: Your Honor is switching it around.
THE COURT: I am not switching anything. All I am saying
to you is the Supreme Court in every capital case reviews the entire
Page 273.
Jeremy Gelb, Esq. - Redirect
thing, including the notes of testimony.
MR. WEINGLASS: And I --
THE COURT: And for anybody here to say they didn't have
enough, Counsel should have done more to inform them -- what more could
Counsel do? I don't care if Counsel gives them 10 pages, they are still
going to review the notes on their own and make their own decision. And
that's exactly what the Supreme Court does.
MR. WEINGLASS: We would like --
THE COURT: So for you or me or anybody to say they didn't
have enough, sure they had enough: They had the record, which they
reviewed.
BY MR. WEINGLASS:
Q. In your view, Mr. Gelb --
THE COURT: Not my view, that is the view of the Supreme Court.
MR. WEINGLASS: I am about to ask Mr. Gelb another question.
BY MR. WEINGLASS:
Q. In your view does appellate counsel have an obligation
to direct the Supreme Court in their written papers to areas of the record
that would favor their client?
Page 274.
Jeremy Gelb, Esq. - Redirect
MR. GRANT: I object. I object, Your Honor.
THE COURT: Yes, because even if you don't, in this case
they looked at it on their own. The Supreme Court brought up issues that
weren't raised.
MR. WEINGLASS: What we are talking about is the obligation of appellate
counsel, that is the issue.
THE COURT: I am talking about --
MR. WEINGLASS: The issue before the Court is the obligation of
appellate counsel.
THE COURT: No, it doesn't make any difference. Because
regardless of what the appellate counsel does, if the Supreme Court
reviews the entire file on it's own, it makes no difference. And if they
make a ruling on any issue, that's it.
MR. WEINGLASS: But that is totally reducing the role of appellate
counsel.
THE COURT: No.
MR. WEINGLASS: What we are concerned about here is what
did appellate Counsel do or what did appellate Counsel not do. And what I
am asking the witness as appellate Counsel, or
Page 275.
Jeremy Gelb, Esq. - Redirect
assisting appellate Counsel, is whether or not in his opinion he had an
obligation to inform the Court --
THE COURT: Wait awhile.
MR. WEINGLASS: -- as extensively as possible.
THE COURT: Counselor, he had no obligation to inform
anybody. That was the responsibility of the appellate Counsel who was
appointed. He wasn't appointed. He was merely assisting that Counsel.
MR. WEINGLASS: And I want to ask him, looking at the
final product, two paragraphs in a brief setting forth what happened on
the night of December 9th, in his view was that an adequate
performance.
THE COURT: Yes, but you would have to ask that of the
appellate Counsel. He was merely assisting. He looked at whatever they
gave him to do, and that's all.
MR. WEINGLASS: Well, you are blocking me.
THE COURT: I am not blocking you. He is not in a position to make that
decision: He was not the appellate Counsel.
Page 276.
MR. WEINGLASS: He is an experienced appellate counsel who
could give us the benefit of an opinion on what is produced in the
brief.
THE COURT: I don't think we need his opinion. The Supreme Court could
give you their opinion on it.
MR. WEINGLASS: Then I will desist from any further questioning.
MR. GRANT: As will I, Your Honor.
THE COURT: All right, you are excused, Counselor.
Anybody else, Counsel?
Anything else?
MR. WEINGLASS: No.
THE COURT: Who do we have for tomorrow?
MR. WEINGLASS: We are going to start --
THE COURT: Do we have a list? Give them the list so --
MR. WEINGLASS: I can read it, it is short, Judge.
THE COURT: What's that?
MR. WEINGLASS: It is a short list but a long day. The first witness
will be Mr. Gary
Page 277.
Wakshul.
THE COURT: Yes, you better get him in the morning because he has to go
for physical therapy.
MR. GRANT: Is that it?
MR. WEINGLASS: No, the next witness will be Robert Greer. Next witness
will be Joseph McGill.
MR. GRANT: Well, we don't know that. We know that there's
been a motion to preclude. That there's been a failure to offer proof, an
offer of proof with specificity and exactitude. And they have declined to
respond to any of those requests. Therefore, I still have a motion pending
before Your Honor to preclude his testimony at all.
THE COURT: Did he file it with me?
MR. GRANT: I am sure he didn't, Your Honor. Oh, did I file a formal
motion to preclude?
THE COURT: Yes.
MR. GRANT: Well, they haven't formally said we now call Joseph
McGill.
THE COURT: Oh, okay.
MR. GRANT: In any event, I look at
Page 278.
this as akin to the subpoenaing of the Governor of
Pennsylvania and the presiding Judge of the homicide calendar room:
Nothing more than a fishing expedition and nothing less without an offer
of proof. So at this point, Your Honor, we have two witnesses scheduled
for tomorrow and they don't appear to me that they will take all day,
based on anticipated cross-examination.
THE COURT: Okay. Could we notify...
THE COURT OFFICER: Who do we want to notify, Your Honor?
THE COURT: Wakshul, 3797. That we will take him first thing tomorrow
morning.
THE COURT OFFICER: Yes, Your Honor.
THE COURT: Then you will have Robert Greer here?
MR. WEINGLASS: Yes.
THE COURT: Then we have the issue with Joseph McGill.
MR. WEINGLASS: Yes.
MR. GRANT: I think we should decide that now so we don't
have to inconvenience Mr. McGill, and we could schedule another witness if
they are not going to provide the necessary proofs. And Your Honor will
have to rule on the
Page 279.
preclusion.
THE COURT: I told him to give you these proofs.
Will you, please. We will always have this problem if you don't do
that.
MR. GRANT: I noticed that Counsel has resumed his seat so
I assume that he is not going to address this issue. I would move to quash
Mr. McGill's subpoena.
THE COURT: Would you please give him that information.
MR. WEINGLASS: I'm sorry?
THE COURT: Would you please give him the information he is
requesting.
MR. WEINGLASS: Of why we are offering Mr. McGill?
THE COURT: Joseph McGill, yes.
MR. WEINGLASS: Yes, Joseph McGill was the Assistant
District Attorney who prosecuted this case. He provided the Supreme Court
of Pennsylvania with an affidavit in which he set forth his conduct during
the selection of the Jury indicating the racial makeup of the Jury. We've
had a lot of testimony about this. We've heard from Mr. Jackson on this.
You've heard
Page 280.
from Mr. Gelb on this. You received an affidavit from Mr.
Jackson. Tomorrow there will be an affidavit from Mr. McGill which he
filed with the Supreme Court, and the brief in which we feel Mr. McGill
was a party to a process that misrepresented to the Pennsylvania Supreme
Court by some 30 percent the pattern of racial exclusion which the
Commonwealth engaged in in picking this Jury. We intend to question him on
that.
We intend to question him on his involvement with Officer
Wakshul and his failure, indeed his refusal to make Officer Wakshul
available when he was asked. Mr. Jackson testified under oath to this
Court that in his experience district attorneys make police officers
available. But when he asked Mr. McGill for Officer Wakshul, the rules
changed and Mr. McGill did not make Officer Wakshul available. In fact,
reported he was on vacation.
We want to talk to Mr. McGill about the materials that
were made available to him from police sources drawn from files on Mr.
Jamal of a political nature. And that he used
Page 281.
that information in his cross-examination of Mr. Jamal.
And he also used information from the Federal Bureau of Investigation
and/or the Civil Affairs Bureau of the Philadelphia Police Department in
his cross-examination of Sonia Sanchez.
We want to question Mr. McGill about a document known as
the Westerman MacKuch -- M-A-C-K-U-C-H -- document which was in the
Medical Examiner's file indicating that another police officer had shot
Mr. Jamal. And that that document was somehow removed from the Medical
Examiner's Office and the file. And that Mr. Jackson, as he testified to
here on the stand, got that document from another source, indicating that
somebody was removing documents from the prosecution's or the police
files, and that even Mr. McGill didn't see all the documents. Because
according to Mr. Jackson, Mr. McGill acknowledged to Mr. Jackson that he
had never seen the Westerman MacKuch document until Mr. Jackson showed it
to him.
So we want to show through Mr. McGill that there was some
doctoring of files here. There was some purposeful omission of
documents
Page 282.
that were not turned over to the defense. A very crucial
position, as Your Honor knows, under Brady versus Maryland, which we are
going to explore in greater depth. I want to talk to Mr. McGill about this
omission.
He launched a mission in the middle of the trial. And the
mission was to bring in Debbie Kordansky for the defense. And in launching
that mission he sent out his two aides, Detective Thomas and I believe a
Detective Burton. And they met with Debbie Kordansky. And through Mr.
McGill, they reported back to the Court. I want to know from Mr. McGill
why Debbie Kordansky then wasn't produced by his mission. What happened
that kept her out of here and turned her against the defense.
I want to question Mr. McGill about his own trial
preparation. And his own questioning of some of the witnesses he
produced.
Your Honor will recall that Mr. McGill was the prosecutor
in a case called Commonwealth versus Connor -- C-O-N-N-O-R -- where a man
in this City was convicted of murder for sexually
Page 283.
assaulting and shotgunning a young woman on top of an
apartment house and throwing her body off from the roof, I believe. And
Mr. McGill prosecuted that case, he handled the police witnesses. And Mr.
Connor was convicted and he did 12 years in prison. And at the end of 12
years, the District Attorney's Office asked the Court to release Mr.
Connor because the victim in that case had, it turns out, was not killed
by the shotgun, but she was stabbed, I believe, 170 times.
THE COURT: That came out during the course of the trial.
MR. WEINGLASS: And that the --
THE COURT: Because I was the trial Judge in that case.
MR. WEINGLASS: So you know that a man was convicted, did 12 years, and
then had to be released.
THE COURT: And who released him?
MR. WEINGLASS: The District Attorney's Office of Philadelphia.
THE COURT: No, who gave him a new trial?
MR. WEINGLASS: I don't believe -- I
Page 284.
don't believe he got a new trial, I think he was released.
MR. GRANT: He got a new trial.
THE COURT: I ordered a new trial. So when you talk about
that case you are talking about me. I know about that case.
MR. WEINGLASS: I know, Your Honor.
THE COURT: Nobody was slow to move. But go ahead. Nothing was thrown
from the roof.
MR. WEINGLASS: But she was killed on the roof.
THE COURT: Anything else?
MR. WEINGLASS: I want to talk to him about his
preparation here, and did he exercise the kind of caution that a District
Attorney ought to exercise when he has a statement from a witness, a
police officer, on the night of the event that says the male Negro made no
comments, and at the same time he is putting on witnesses who are going to
testify about belatedly hearing alleged comments. So I think that there is
a great deal in that area that we are going to cover.
But I want to be clear. We want to specifically go into Batson with
him. We want
Page 285.
to go specifically into the problem around Wakshul. We
want to specifically go into the question of his involvement with
Westerman and MacKuch. And the fact that he didn't have in his Medical
Examiner's report materials that were circuitously given to Mr. Jackson.
And how was the turnovers handled in this case. And the documentary
materials gathered and safeguarded.
So we have to cover those areas with Mr. McGill and those
areas do pertain to the issues raised in the Petition. They involve
Batson, they involve new evidence. They involve questions of Brady. They
involve questions of prosecutorial misconduct.
MR. GRANT: Now you see why we wanted an offer of proof?
Because really all they want to do is they want to try Mr. McGill for
trying Mr. Jamal. And they would like to retry the whole case here if they
could.
First of all, if they want to bring in a person who is
going to tell them what went through Debbie Kordansky's mind when Debbie
Kordansky said to Mr. Jackson I don't want to come in and get involved in
this case, why don't they bring in Debbie Kordansky? That is the
Page 286.
horse's mouth. Why are you going to bring in the trainer
of the horse or the feeder of the horse or the groom of the horse? Debbie
Kordansky is available to them. I would ask to preclude testimony from Mr.
McGill regarding that person when they have that person available to them.
Number one.
Number two, they want to know what involvement Mr. McGill
had with Gary Wakshul. One thing they could do is go up to the sixth floor
and bring him down here, like they failed to do all these days we have
been in Court and hesitate and seem apprehensive about doing. They could
do that. And I ask that their offer of proof be rejected.
THE COURT: Who do you mean, Wakshul?
MR. GRANT: Gary Wakshul.
THE COURT: He is coming in tomorrow morning.
MR. GRANT: Yes, and I am sure that the information they
need could be gotten from him on the witness stand under oath and they
don't have to have it secondhand from Mr. McGill. I would ask Your Honor
to preclude their inquiry into that area.
Page 287.
Materials were made available to him of a political
nature. I don't know what political nature means, but the Supreme Court
has ruled as to whether or not cross-examination may occur when a person
gives character witness testimony and it is discovered that that person
has praise or even in some way encouraged other people to kill police
officers. That issue has been decided and it's moot at this point and it
is not the subject of Post-Conviction Relief here in this case.
Counsel next cites -- I would ask that Your Honor limit
them in that regard and preclude testimony of that nature: It's already
been decided.
Whether the Federal Bureau of Investigation, over which
we have no control, and the Civil Affairs Bureau of the Philadelphia
Police Department, contributed information or evidence to Mr. McGill,
that's of course certainly... interesting. But it never entered into any
trial in which Mr. Jamal was tried by any jury in this County and
therefore it's totally irrelevant. I don't think that should be the
subject of an inquiry.
Page 288.
And this Westerman MacKuch document: I think what you may
recall from this trial, Your Honor, is that Mr. Jackson, when he began to
put on the defense case at the end of the prosecution's case-in-chief, he
asked Your Honor for permission to do a preview of testimony of some
people that he may want to put on and may not. But he wanted it on the
record so that he could assess whether or not they'd be good for him. And
he brought in Sergeant Westerman and he brought in an investigator from
the Medical Examiner's Office. And at the time when a murder occurs, the
Medical Examiner calls over to Homicide and says what occurred in this
case and they try to get a background scenario so they could tell the
doctor so as they investigate and internally examine the body they could
make some sense and put into context what they are seeing.
Now, it just so happened that as soon as Mr. McGill -- it
is in the record -- turned over the M.E.'s file, everything that he had to
Mr. Jackson, the next day's story in the press was other cop shoots Jamal,
police attempt to assassinate Jamal. That was brought to Your
Page 289.
Honor's attention; there was discussion between yourself,
Mr. McGill and Mr. Jackson. How, hmm, convenient it was that on the day
after he gets it, this is released to the press.
Obviously, Mr. Jackson had that document and that's the
subject that they are trying to raise now, that he didn't in fact have a
document. He says I did not reveal any of that stuff, Judge, and I did
receive the materials but I didn't reveal it. Nevertheless, let me
cross-examine these people, maybe I could put that evidence on in my case
anyway. That's what happened with respect to that. That was Mr. Jackson's
doing. Why should Mr. McGill have to answer for that? I would ask that you
preclude inquiry in that area.
Purposeful omission of documents not turned over to the
defense. There has to be some specificity and some showing made that he in
fact omitted to turn over documents and what they were. They have been
saying this about everybody in this whole town since they got here and
they have yet to offer proof of anything. And I think the reason they
don't want to have to prove it by putting on evidence, witnesses on
Page 290.
to premise their assumptions before they get to ask other people about
them, is because they don't have any.
I would ask that they be precluded from asking anything
about discovery. Discovery had been granted. Mr. Jackson admitted he got
full discovery. He had the entire M.E. files. He had the documents. If
there was anything missing from the M.E.'s documents it was because Mr.
Jackson's confidential informants, or whatever they were, purloined
documents that the D.A. doesn't even have. So Mr. McGill has to answer for
that too? I would suggest that's totally inappropriate.
The question about Mr. McGill's own trial preparation. I
don't even know what that means. Were you prepared to try this case Mr.
McGill and if you weren't why not. That's ludicrous, Judge. Since when do
they have the right to bring in anybody -- are you prepared to sit and
preside in this case, why can't they subpoena you and ask you that? What
is the relevance of that?
THE COURT: I don't know.
MR. GRANT: Commonwealth versus
Page 291.
Connor. What they want to do, Judge, is bring up some
other murder case in which the Commonwealth elected to release this
individual, after the granting of a new trial, not because it was tried by
Mr. McGill; A, and not because he was innocent, B, but the person who may
have been involved -- and there was some question about it -- was dead,
and we could never prove that that dead person committed the crime because
we had no evidence against him. And out of an abundance of caution,
because another person in our Office 15 years later decides that we think
that it is a fair thing to do since we have some suspicion, but this man
was convicted duly by a jury, perhaps we will try to be fair in this
situation and release the individual because the other individual who may
be a suspect if he is convicted is dead, and we can't prove that either,
so now they want to take that and they want to tell Mr. McGill you are the
D.A. who first prosecuted the guy and convicted him. Well, what's that
stand for? It stands for nothing, except that because somebody tries to do
what they think is arguably a fair procedure -- and I am sure Mr. McGill
did not
Page 292.
agree with that -- that that's to be used at a PCRA for
Mr. Jamal? I'm not getting that. And the question is did he exercise
proper caution in preparing this case.
Your Honor, I would suggest to Your Honor and submit that
if they want to inquire of Mr. McGill with respect to the Batson issue, I
think they should be given full latitude so this claim could be litigated
once and for all, whatever their additional evidence is. I think
everything else they have mentioned -- Gary Wakshul could be gotten from
Gary Wakshul. Debbie Kordansky can be gotten from Debbie Kordansky. And
all the rest of this is a witch hunt and I would ask Your Honor to so find
and preclude an inquiry in that regard.
MR. WEINGLASS: If I could just be a little more specific
for the benefit of Counsel. When I asked about the preparation of, Mr.
McGill's preparation, I want to inquire as to the following: Was he aware
of the use of polygraphs in this investigation. We have evidence that it
was used. And was it used selectively.
Two, was he aware of photo arrays used
Page 293.
for purposes of identification. We have some indication it was used. We
want to know from Mr. McGill if it was used.
Three, when he put Dr. Hoyer on the stand, who was the
Medical Examiner, was he aware of the fact that Dr. Hoyer had found and so
indicated on the Medical Examiner's report that Officer Faulkner was shot
with a .44 caliber bullet, and that Mr. Jamal's alleged weapon was a .38
caliber.
Finally, did he know when he put Cynthia White on the
stand what Veronica Jones testified to. Namely, that she was given the
same offer that Cynthia White apparently was given by the police officers
at the 6th precinct. And that is if she would turn against Mr. Jamal and
offer testimony against him she could work her corner without fear of
arrest.
So those are the specific areas. All of them deal with
questions of Brady. All of them deal with questions of the prosecution
having evidence of innocence and not turning it over. They deal with
questions of bias in the investigation.
And I refer the Court to a very recent
Page 294.
United States Supreme Court's decision called Kyles,
which came down maybe two months ago, indicating that if there is bias in
the investigation, that's tantamount to a Brady violation.
So we would like to ask Mr. McGill these questions. And
as the chief prosecutor of the case he is in a position to answer. Because
he put the case together, he prepared the case, he either turned over or
withheld information from the defense. He either knew of deals that were
made with witnesses or he didn't know of deals that were made with
witnesses and he should have known. And he either knew that Dr. Hoyer made
an entry that was favorable to the defense and he chose not to bring that
out in front of the Jury even though he called Dr. Hoyer for whatever
reasons. But all of these areas impact the question of Brady. They impact
the question of bias, in the investigation. They impact the issue of a
fair trial. They impact on issues of depriving the Defendant of the
opportunity to present a defense by not having Wakshul, by not having
Debbie Kordansky. And they also impact Batson, which is the use of 11
Page 295.
peremptory challenges for racially-motivated reasons. All
those reasons are essential for the testimony that Mr. McGill could offer
on this record. And we ask that we have a full hearing and a complete
hearing and an opportunity to present those matters on the record of this
proceeding.
MR. GRANT: And that's what we anticipated happening when
he gets on the stand: Oh, we have three more that we forgot to mention to
you when we were first talking about what we were going to do with
him.
Number 1, polygraph. I subpoenaed a person who could
answer that question directly for him. And that is the individual he
claimed in his affidavit was given a polygraph. He tells the male not to
come to Court. I asked for a bench warrant and he comes and begs and
pleads on the man's behalf. Do you want to know about the polygraph? Ask
Dessie Hightower. He signed an affidavit. Number one.
Number two, in the State of Pennsylvania, unless you are
the defendant and you are given a polygraph examination, there is no such
discovery on polygraph examinations
Page 296.
because it's not discoverable. And I could tell you
without being the trial counsel in this case whether a polygraph exam was
given, and I certainly don't have to. So you don't need Joe McGill to tell
you that information. You have the witness, you have the affiant. He
signed his affidavit, he claims he was given one. Put him on the
stand.
As to Cynthia White, that she was allowed to work her
corner without fear of arrest if she would just give testimony favorable
to the Commonwealth, this was also extended to another witness, allegedly.
I think if Counsel does his research on the case and looks at Cynthia's
arrest record, that she was arrested not even 96 hours later in the same
area, and that she was rearrested again five days after that for the same
crime that he is claiming she has immunity from us for. That is totally
ludicrous and he knows it. And he could prove it is ludicrous. But he will
never bring it out unless I bring it out, so I am bringing it out. That's
ridiculous.
And as to Dr. Hoyer: Since Mr. Jackson had more Medical Examiner case
files
Page 297.
than Mr. McGill, and he is Counsel for Mr. Jamal, why
isn't he bringing out, if he thinks it is evidence favorable to the
Defendant, that information? Your Honor offered to him, when he was going
into areas, going into qualifying him as a ballistician, as a neutron
activation analyst, gunshot residue analyst, you said Mr. Jackson, he was
offered for cause of death, manner of death. If you want to call him as
your witness, then you can call him as your witness and qualify him in all
these areas. But at this time he is not qualified to give those opinions.
Mr. Jackson declined to bring him in and put him on for those reasons. And
I think Mr. Jackson knew very well why. The examination came out, he
measured the bullets. He doesn't give calibration but he measured the
bullets and those bullets happened to be within a millimeter of exactly
what the ballisticians found, and they weighed within milligrams of what
the ballisticians found them to weigh. And Mr. Jackson knew that if he
tried to make that an issue as Counsel tries to make it an issue, he was
going to eat it on the witness stand from both Dr. Hoyer, Larry Paul the
ballistician, and
Page 298.
William Carlin, the person who performed the tests.
So Counsel could bring that out by bringing in Dr. Hoyer,
Dessie Hightower, and he could bring in the arrest record of Cynthia White
to show how much latitude she got from the Commonwealth.
Therefore, I would ask you to preclude those areas. And
tomorrow they will come up with some new areas when he is on the stand
they will give me. That's why I am asking Your Honor to specifically and
with exactitude limit the areas that they will be inquiring into with a
person who is not an affiant, who is not named to support any of their
filings, and he has not made any showing up to now as to any showing as to
what he would prove. Thank you.
THE COURT: I think you have to lay your foundation first.
He is giving you the opportunity to call these other witnesses. I think
that's the way you should handle it. We will keep McGill in abeyance for
the time being.
Anything else?
MR. GRANT: No, Your Honor.
THE COURT: Well, is there anyone that
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you need the District Attorney to help you to bring in tomorrow?
Besides Wakshul and Greer.
MR. GRANT: That is certainly not going to take an entire day, Your
Honor. And I would ask --
THE COURT: That's what I am saying.
MR. GRANT: I would ask who else is coming in.
THE COURT: Do you have somebody else that you need help?
MR. WEINGLASS: Yes, we can use your assistance to bring in Officer
Trombetta, who was subpoenaed today, I believe.
MR. GRANT: Yes.
THE COURT: Trombetta.
MR. GRANT: I never heard of him either. Didn't get any affidavit from
him, no offer of proof for him either.
THE COURT: You see why when you don't do these things --
MR. GRANT: Because they don't want to face the music that
they don't have a case, and they don't want to put the evidence on to
--
MR. WEINGLASS: Counsel should read the music. Trombetta, for
Counsel's
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information, was Wakshul's partner. And he was there that
night and he was in the hospital and he was standing next to Mr. Jamal and
he didn't hear a thing. And we want to put him on the stand.
MR. GRANT: Well, I guess you are going to have to serve him yourself
and I would object to you doing this also.
MR. WEINGLASS: This shows you how bona fide the offer of
assistance is. When we take him up on the offer we get you're going to
have to serve him yourself, Counsel. Same thing that happened to Mr.
Jackson at the trial.
MR. GRANT: Judge, if they wanted to bring in witnesses
that they have listed, instead of everybody in the world that comes to
their mind, instead of putting on those claims that they have made to the
world right there -- they have all these people available -- we will go
find any of these people which they want to find, of course, but these
people. We are not interested in pursuing their wild goose chases around
the City for the --
MR. WEINGLASS: I want to put on the man standing next to Mr. Jamal when
others said
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he made a statement. And that man, who is a police
officer in the City of Philadelphia, said that Mr. Jamal made no
statement. That is as specific as you can get.
THE COURT: Okay, serve him. Did you serve him with a subpoena?
MR. WEINGLASS: We did serve him. We are asking for the District
Attorney to see that he is brought in.
THE COURT: Is he still a police officer?
MR. GRANT: I don't know anything about it, Judge. But
just because they want to serve Judge Paul Ribner and bring him in, or the
Governor of Pennsylvania, bring them in, I am not going to help them do
that. Because that is ridiculous and they don't have a right to do it.
They have no basis in law or in fact for doing it. He is not one of their
affiants. They have never used him as a witness. But what they want now,
they want to avoid doing what they have to do. They want to keep
inconveniencing witnesses. Everyday there is going to be somebody
different. Anybody but those people. And that's why I am not going to
assist him in
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doing that, Judge.
THE COURT: Why don't we get the people that you say you have all these
affidavits for?
MR. WEINGLASS: We are proceeding in order. Tomorrow
morning, police. Tomorrow morning we are hearing from Officer Gary
Wakshul.
THE COURT: Right.
MR. WEINGLASS: It seems to us that in the interest of an
orderly proceeding, the next witness or the witness after that should be
his partner. That's the way to proceed. We've subpoenaed the man. Now
we've asked for the D.A., who has offered his assistance, to, quote, to
use their street vernacular, to put up or shut up. And now they very
clearly are shutting up because they don't want to put up. They don't want
Trombetta, who they don't even know who he is, but they certainly don't
want him near this Courtroom testifying under oath. That's very
obvious.
MR. GRANT: He still hasn't told you who is next besides Wakshul and
Greer.
MR. WEINGLASS: Trombetta.
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MR. GRANT: I am going to object and move to preclude whoever,this
person is.
MR. WEINGLASS: Counsel is now moving to preclude people he doesn't know
anything about.
THE COURT: Because you just told him at the last minute. How is he
going to be prepared to preclude him before?
MR. WEINGLASS: Anybody who spent five minutes with this record --
THE COURT: You have 19 issues here and you have a lot of affidavits.
Why don't we get some of those people in first?
MR. WEINGLASS: Oh, Your Honor has heard from them. You have heard from
Anthony Jackson, affidavit number one.
THE COURT: Okay.
MR. WEINGLASS: Tomorrow you will here from Robert Greer,
affidavit number two. We are taking them in order. And we are taking the
issues in --
THE COURT: Who is affidavit three?
MR. WEINGLASS: Different issue. We will call him within two or three
days as we get to that issue.
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THE COURT: Wait awhile. But you said he is number three. Why don't
--
MR. WEINGLASS: No.
THE COURT: Are they --
MR. WEINGLASS: I am not saying he is number three. I am saying --
THE COURT: I asked you who is number three?
MR. WEINGLASS: He is in the Petition, the third affidavit addressing a
different issue than the first two.
MR. GRANT: George Fassnacht.
THE COURT: Oh, Fassnacht. Why don't we call Fassnacht?
MR. GRANT: He has been on my subpoena on call and he is
awaiting a call from us. That's why if we don't have a full schedule
tomorrow I will be asking to put him on the stand.
THE COURT: I asked you for this. And you said you want to
go in that order you put them down. He's number three. Why don't we call
him tomorrow?
MR. WEINGLASS: We are dealing with the order correctly, issue by issue.
He
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addresses a different issue. I am explaining to the Court that
tomorrow's issue is --
THE COURT: Well, you told me that you are going according to the
affidavits.
MR. WEINGLASS: No, I never said that, you mis heard me.
Your Honor mis hears me all the time. There is something wrong in
here.
THE COURT: Well, there is something wrong that you are not being very
explicit, Counselor.
MR. WEINGLASS: I am as explicit as possible. The Court has aversion
--
THE COURT: You are not.
MR. WEINGLASS: The Court has a certain aversion which is obvious in the
way you selectively hear things.
THE COURT: I told you in the very beginning: Give me a
list of all your witnesses that you intend to call. Give him the
affidavits of these people so that he could then be prepared to
cross-examine them. You are not doing that, Counselor.
MR. WEINGLASS: You have the list.
THE COURT: I don't have any list. You never gave me a list.
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MR. WEINGLASS: Well, that's --
THE COURT: Don't tell me you gave me a list.
MR. WEINGLASS: Your Honor sat on the bench and read from two lists we
gave you.
MR. GRANT: Neither one of which was accurate and neither
one of which any of the witnesses showed up on any of those days. And I am
tired of getting those bogus lists from him.
MR. WEINGLASS: Counsel should take a rest.
THE COURT: Get a list by tomorrow morning so we know where we are
going. Get that list together.
MR. GRANT: Your Honor, may I bring in witnesses tomorrow?
Since he only has two and it is only going to take us to noon. Then what
will we do?
THE COURT: If he doesn't have any witnesses I will listen to your
witnesses too.
MR. GRANT: Thank you.
THE COURT CRIER: This Court stands recessed until 9:30 tomorrow
morning.
(The hearing was adjourned for the day at 5:15 p.m.)
Page 307.
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