Page 2.
Page 3.
(At l0:15 a.m. the hearing was convened in
the presence
of the Court and the attorneys.)
MR. WILLIAMS: Good morning, Your Honor.
THE COURT: Good morning.
MR. WILLIAMS: The Petitioner Mr. Jamal calls to the stand Gary
Wakshul.
BY MR. WILLIAMS:
Q. Sir, let me make sure I pronounce your name correctly. It's
Wake-shul?
A. That is correct.
Q. Good morning.
A. Good morning.
Q. Now, Mr. Wakshul, you are appearing here under subpoena?
Page 4.
A. That is correct.
Q. And were you subpoenaed by, which party were you subpoenaed by?
A. The subpoena didn't say but I am assuming the defense.
Q. Now, you understand the nature of these proceedings, do you?
A. Ahh, only what I have heard about them; I don't know the exact
nature, no.
Q. All right. Can you tell us what is your understanding of these
proceedings?
MR. GRANT: Objection, Your Honor. That's irrelevant.
THE COURT: Sustained. Just ask him questions.
BY MR. WILLIAMS:
Q. Do you understand, Mr. Wakshul, that Mr. Jamal has filed a Petition
for a new trial?
A. I had heard that.
Q. Now, you were a police officer when Police Officer Faulkner was
killed?
A. That's correct.
Q. Did you know Police Officer Faulkner?
A. Yes.
Q. Did you work in the same district as Police
Page 5.
A. Yes.
Q. And that is the 6th District?
A. Yes.
Q. Were you friends with Police Officer Faulkner?
A. I would say so.
Q. And I take it that you were upset when Officer
Faulkner, when you learned of Officer Faulkner's death?
A. Very.
Q. Is it safe to say, Mr. Wakshul, that you hope that the Commonwealth
prevails in this proceeding?
MR. GRANT: Objection, Your Honor.
THE COURT: Sustained.
MR. WILLIAMS: I think it goes to his bias.
THE COURT: Not necessarily. Whether or not anybody wins depends on the
Court's decision, so.
MR. WILLIAMS: I'm sorry?
THE COURT: I don't think it has anything to do with bias, Counsel.
BY MR. WILLIAMS:
Q. Now, Mr. Wakshul, have you and I ever met?
A. Yes.
Page 6.
Q. And we met in the witness room back there?
A. That's correct.
Q. Did we engage in a conversation?
A. A short one, yes.
Q. And did I introduce myself as a member of the defense team?
A. Yes.
Q. And do you recall I attempted to talk with you about what I would
like you to testify about?
A. Yes.
Q. And do you recall what your reaction was to my request?
A. I said, I believe, something to the effect well, we '11 discuss it
in the Courtroom.
Q. In other words, you refused to discuss what you would
talk about here in Court in the witness room?
A. I made a decision at that point not to discuss it with anyone,
yes.
Q. By the way, have you talked with any member of the prosecution
team?
A. I spoke to Mr. Grant on the phone.
Q. Okay, when was that?
A. It would be a couple weeks ago.
Q. And was anybody present on your end of the
Page 7.
A. I don't understand.
Q. Were you talking alone or were there other people in the room when
you were talking?
A. Umm, I think Mr. Witcher was there.
Q. And who is he?
A. He is a detective.
Q. Where were you when this phone conversation took place?
A. I was in Courtroom 602.
Q. Okay. What did you and Mr. Grant talk about?
A. Umm, Mr. Grant spoke to me about the case, how that
the defense would probably want to call me, and he wanted to make sure
that I was going to be there one way or the other. And that was the gist
of the conversation. It was very short, that I recall.
Q. Was there any discussion about the substance of your testimony, or
possible testimony?
A. No.
Q. Was there any discussion about any police reports or
interviews that you gave back in 1981 and 1982?
A. Not in that conversation, no.
Q. Was there any conversation?
A. I don't recall if I mentioned to Mr. Grant or
Page 8.
he mentioned to me anything about them. There was a point
where I think Detective Witcher asked me if I could stop at Mr. Grant's
office and look at those -- or review those reports. And I don't think
that was the same day, I think that was a little later. And I did go over
there. Mr. Grant was not there.
Q. So you went to the District Attorney's Office?
A. That is correct.
Q. And did you in fact review some reports?
A. Yes.
Q. What reports?
A. Three statements.
Q. What statements did you review?
A. They were three statements, two of them taken by
Homicide, I believe, and one by Internal Affairs.
Q. And those statements were from who?
A. Myself.
Q. Did you recognize those statements when you reviewed them?
A. Yes.
Q. And did you discuss with anyone from the District
Attorney's Office the substance of those statements after you had reviewed
them?
A. Are you talking about Mr. Grant or an attorney?
Page 9.
Q. Any member of the --
A. Nobody that I know from the District Attorney's Office, no.
Q. Well, let me ask it this way. Did you discuss what you
had just reviewed in the District Attorney's Office with anyone?
A. Well, when Mr. Witcher was there and he asked me if I
had any questions and I said no, and that was the only discussion we had
on it.
Q. Do you know -- what is it, Richer?
A. Witcher.
Q. Do you know what role Mr. Witcher plays in the defense
of this case from the Commonwealth's side?
A. I believe he's just assisting Mr. Grant in contacting
people or moving things from one place to the other. I really don't have
any other information on it.
Q. Did you discuss at all any aspect of your involvement
in the investigation of the shooting death of Officer Faulkner with anyone
from the Philadelphia Police Department?
A. Are you talking in this period of time or originally?
Q. Yes, in this period of time?
A. No.
Page 10.
Q. I will go back to 1981 and '2 later.
A. No.
Q. Now, Mr. Wakshul, when did you join the Philadelphia police
force?
A. August 22nd, 1977.
Q. And what is your current occupation?
A. I'm a Tipstaff 2 for the Court of Common Pleas.
Q. Can you explain that to an out-of-towner?
A. Court Crier.
Q. Okay, Court Crier. So at the time of this, of the
shooting and then the subsequent investigation, you were a member of the
Philadelphia police force for under five years?
A. That's correct.
Q. Can you tell us why you left the police force?
A. I was dismissed from the Police Department.
MR. GRANT: Objection. Move to strike.
THE COURT: He's already said it, it's a little late.
THE COURT: Sure. If you want to give
Page 11.
an explanation, go ahead.
THE WITNESS: I was dismissed for an incident that did not
occur. I have subsequently gone through court and the Pennsylvania Supreme
Court and awarded my job back.
BY MR. WILLIAMS:
Q. And when will you rejoin the police force?
A. I, right now I am in negotiations with the City
Solicitor's Office, I believe, for the actual settlement, so I have no
idea what the final outcome will be.
Q. So it is your desire to be hired by the Commonwealth as a police
officer again?
MR. GRANT: Objection.
THE COURT: Could you rephrase the question somehow.
BY MR. WILLIAMS:
Q. Do you wish again to become a police officer?
MR. GRANT: I have an objection, Your Honor. I thought we
were dealing with the events that transpired in 1983. '81, I'm sorry.
MR. WILLIAMS: The purpose, again,
Page 12.
Your Honor, goes to -- I hesitate to explain myself in
front of the witness -- but it does go to the bias issue.
THE COURT: All right. I will let it in.
MR. WILLIAMS: You will allow it?
THE COURT: Yes.
MR. WILLIAMS: Thank you, Your Honor.
BY MR. WILLIAMS:
Q. Do you wish to again become an employee -- I'm sorry
-- a police officer here in the State of Pennsylvania?
A. At this point it is not my intention to rejoin the Police
Department.
Q. I thought you had litigated the matter and for purposes of becoming
a police officer?
A. No, I only litigated the matter to get back my status
for my years of service, retirement and back pay and things like that.
Q. I see. Now, between August of 1977 when you joined the
force, and 1982, had you ever taken a suspect into custody?
MR. GRANT: Objection, Your Honor. In this case he took no one into
custody and I
Page 13.
think these questions are all irrelevant to his lack of
testifying at the trial but giving three statements to the investigating
detectives.
MR. WILLIAMS: Your Honor, I will make it abundantly
clear. I will connect this up with future questions. This is merely
foundational questions, questions that I will ask leading to questions I
will ask later. It's merely background and foundation.
THE COURT: All right, I will let him do it and later on I
will strike it if it's not relevant, okay.
MR. GRANT: Thank you, Your Honor.
MR. WILLIAMS: Thank you.
BY MR. WILLIAMS:
Q. So the question again, Mr. Wakshul, is between 1977
when you joined the police force, and 1982, had you ever been involved in
the taking into custody of an individual?
A. Yes.
Q. Did you receive training in that regard?
A. That's a little broad a subject.
Q. Let me put it this way. If someone were to ask me to
take someone into custody I wouldn't know how to do it. When you joined
the police force did
Page 14.
somebody instruct you on the proper procedures in taking an individual
into custody?
A. I was trained in the Police Academy in the use of
handcuffs and of positioning of bodies when you take them into custody.
The only experience that I learned it from was actual participation in
arrests and those types of things. So I had some training in the Police
Academy and I had some on-the-job training as far as taking people into
custody.
Q. And between 1977 and 1982, had you ever in that time
period been privy to a suspect or an individual in custody having made a
statement?
A. What do you mean by statement?
Q. Well, a suspect confesses or utters a remark or
anything of that sort, has that ever happened?
A. I have, I have had people utter a remark, yes.
Q. Have you ever had any individual in custody literally
confess to a crime between the dates of 1977 and 1981?
A. One person.
Q. Now going back to the Police Academy: Have you ever
received training in how to treat and record statements that are taken by
people in custody?
A. I don't recall if I ever had any such
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training.
Q. In your experience, have you learned how to treat and
record statements by persons who are in custody?
THE WITNESS: Could you repeat that, please.
MR. GRANT: I would object unless that experience is
limited to the time period from 1977 until 1981 when this event
occurred.
MR. WILLIAMS: That's fine, Your Honor.
BY MR. WILLIAMS:
Q. Yes. Between the time frame my brother at the bar here
mentioned, 1977 and 1981, had you ever received any training or
instruction or somehow learned through experience how to handle a
statement that a suspect gives?
A. I don't believe there's any one policy. There are
several methods of recording that if that's necessary. But I don't believe
there's any one, set policy for it.
Q. Could you tell me what those methods are?
A. If I was the arresting officer I might, I might, if
there was room, put something on a 48. Or more than likely I would tell it
to a detective who
Page 16.
was investigating any arrest. Or any subsequent investigation, or at
the bar of the court.
Q. I'm sorry, what was the last?
A. Or at the bar of the Court.
Q. What is a 48?
A. A 48 is an incident report, it's the initial report done by a police
officer.
Q. Were you ever instructed that you should keep yourself available for
trial?
A. At that meeting?
Q. No, at any point.
A. I believe later on after our vacations were decided
on, they were given out, and the trial date came out, being asked not to
go away on vacations.
Q. Who asked you not to go away?
A. That I couldn't tell you. That could have come from,
that could have come from Mr. McGill, it could have come from supervisors
in the Police Department. I don't really recall where it came from. I
recall that, you know, we were asked, or, yeah, I believe it was more than
one person at the time, was we were asked if you are on vacation during
that period, you know, try to stay available, something to that effect. I
don't have specific
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Gary Wakshul - Direct
recollections of that.
Q. Do you remember approximately when you were, when you
received that instruction or instructions?
A. No, it was sometime before the actual trial began but
I don't recall the specific dates.
Q. Now, before you received that instruction that you
just indicated, had you gotten approval from anyone at that point to go on
vacation?
A. I couldn't tell you if that was before vacation
assignments came out or after it came out. I would imagine it came after
it came out because before the vacations were picked, it wouldn't have
made any sense. So.
Q. Exactly. To give you an instruction but at the same
time approve a vacation wouldn't make any sense?
A. Right.
Q. So the vacation schedule came out after certain
superiors of yours, possibly Mr. McGill, instructed you not to go on
vacation?
A. Are you saying the schedule came out after? No, I believe the
schedule was out first.
Q. Right.
A. Before any, any request not to go on vacation, or go
away on vacation. Not necessarily go on
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Gary Wakshul - Direct
vacation but go away on vacation came out.
Q. So the schedule comes out for the vacation?
A. Right, we picked by lottery who gets what vacation
periods. And that's usually done anywhere from March through actually up
to May I would imagine, I don't know when. It varied, at that time Police
Department procedures varied from year to year.
Q. So you got the vacation schedule and I take it you hit
the jackpot: You got the July 4th weekend, right?
A. I don't recall the exact dates of my vacation.
Q. Okay. We'll get back to that in a moment. You got your
vacation schedule and then sometime afterwards you receive these
instructions that you just mentioned about the not to have a vacation at
around the time of the trial?
A. To the best of my recollection, these instructions came after
vacations were chosen.
Q. Okay. Now, do you recall if you told Mr. McGill or any
member of the District Attorney's Office -- and when I say any member, I
mean prosecutor, paralegal, or anyone -- that you had a vacation
scheduled, did you inform anyone that in that office?
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Gary Wakshul - Direct
A. I have no recollection at all.
Q. Can you share with us at the time -- the policies may
have changed -- but at the time, 1982, what the policy was for police
officers who had vacations scheduled that might conflict with the trial,
what is an officer to do?
A. Generally, once your vacation is scheduled, you go on vacation.
Q. So in other words, if you have a vacation scheduled,
that takes priority over the administration of justice?
A. Not necessarily. The way the system was at that time
was that when the cases were prepared, if a vacation was known by the
investigator, he would note that vacation schedule on his reports. And
then when they were scheduling cases with the judge or whoever at that
time scheduled cases, they would say this is not a good date or this is a
good date, the officer's on vacation. Umm --
Q. Let me stop you right there.
MR. GRANT: May the witness finish his answer?
MR. WILLIAMS: Very well.
BY MR. WILLIAMS:
Q. I'm sorry, go ahead.
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Gary Wakshul - Direct
A. And if a vacation had not been scheduled already, then
they would just note that there was nothing scheduled; and then when it
came up for trial, if the officer was on vacation I guess they would try
to get a continuance. In the case of this --
Q. Well, I am not asking you about this case, I was asking you about
the policy.
MR. GRANT: May the officer finish his answer?
MR. WILLIAMS: His answer is non responsive. I will go into that.
MR. GRANT: How do you know it was non responsive?
MR. WILLIAMS: Because he was referring to this case, he was talking
about this case.
MR. GRANT: You don't want to know about this case.
MR. WILLIAMS: I will in due course. In due course.
MR. GRANT: Oh.
BY MR. WILLIAMS:
Q. Okay, let's probe that answer a bit. When an officer
has a vacation scheduled and then a case is
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Gary Wakshul - Direct
called for trial, you said that someone communicates to
the court that an officer is on vacation and they would try to work around
that; is that what you are saying?
A. In most cases, yes, that's what would be done. If the
officer's on vacation the District Attorney would know earlier on enough I
guess to try to arrange a date for that case that doesn't conflict with
the vacation schedules.
Q. So the party responsible for informing the court of an
officer being unavailable for vacation is the District Attorney?
A. The party informing the court in all cases would be
the District Attorney, sir, I imagine that would be it.
Q. So is it your understanding in the Police Department
that there is communication between the Police Department and the District
Attorney's Office regarding the availability of officers?
A. There were some. I have no idea as to the actual
procedures to this day, how that is actually done.
Q. In any event, when an officer requests a vacation,
they have to fill out a vacation form of some kind, a request form?
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Gary Wakshul - Direct
A. No, if it's an out-of-period vacation, you would ask
for a request form and that would be up to your captain's approval
according to manpower. During the vacation season there is basically a
lottery where all the vacation periods are divided up and all the
officers, amount of officers are divided up, and they basically pull from
a hat what vacation period they will get. They could make sometimes
certain trades with other officers to accommodate their vacations. But
once those vacations are pulled you're basically stuck with that vacation
unless you take one out of period.
Q. You indicated earlier, Mr. Wakshul, that your being,
the scheduling of vacation is noted on an investigator's report?
A. When a detective takes a report on any case that they
are investigating from arrest, they, as far as I can recall, usually asked
the officer what's your vacation. And if you have taken your vacation, or
if your vacation has not been scheduled, you will just say I don't have
any, I don't have any vacation yet.
Q. And on December 9th, 1981, did you have a vacation scheduled
yet?
A. For the succeeding year? No.
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Gary Wakshul - Direct
Q. Can you please look at Defense Exhibit 11. Look up by your name.
A. Yes, I see it.
Q. Do you see there it says no vac: V-A-C?
A. That is correct.
Q. What does that mean?
A. That means that I have either taken my vacation for
that year, or my vacation for the next year is not in, hasn't been
chosen.
Q. Oh, okay.
(Discussion was held off the record at this time among
defense Counsel.)
BY MR. WILLIAMS:
Q. Now, so back on that very first interview within,
really, literally a few hours of the shooting of a police officer, there
was discussions with you concerning your vacation schedule.
A. I would imagine so, yes.
Q. And that was important enough to note on your report, as it
appears?
A. It simply could be here no vacation because I didn't
recall, I didn't know if I had a vacation scheduled or not, or if it was
taken, I don't know when it is going to be. If they don't have the
information they simply note no vacation because they
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Gary Wakshul - Direct
don't have that information.
Q. And you are aware as a police officer that felony
matters, as this one was, were on a 180-day schedule, that is it has to be
tried within 180 days?
MR. GRANT: Objection, Your Honor. Actually, that
misstates the law. And as to his knowledge or awareness of the law, that's
totally irrelevant.
MR. WILLIAMS: Well, it goes to whether on the vacation issue --
THE COURT: No, it doesn't. He told you, I thought he said
in plain English that on that report this means that either he had already
taken his vacation for that year, or it had nothing to do with the
following year because they don't do that selection until -- When was
that? Did you say May?
THE WITNESS: Your Honor, usually it starts somewhere between March and
April.
THE COURT: March and April?
THE WITNESS: Even into June.
THE COURT: Of the following year?
THE WITNESS: Yes.
THE COURT: Then you pick for your vacation.
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Gary Wakshul - Direct
THE WITNESS: Yes.
THE COURT: Very clear. I don't have any problem with that.
BY MR. WILLIAMS:
Q. Can you recall approximately when you received approval for your
vacation?
A. No, sir.
Q. Do you remember if it was cold outside or it was warm outside at
that time, the season?
A. I have no recollection when we chose vacations that year.
Q. Would it be safe to say sometime around March or April?
MR. GRANT: Would it be safe to object, because the man said twice he
doesn't know.
MR. WILLIAMS: There was reference in the minutes or his testimony
earlier about March.
THE COURT: What year are we talking about?
MR. WILLIAMS: 1982.
THE COURT: 1982. I thought he said they don't pick until March.
THE WITNESS: Judge, it would be March
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Gary Wakshul - Direct
through maybe even the beginning of June, anytime, I have no idea.
THE COURT: In 1982.
THE WITNESS: In 1982 I have no recollection when vacations were
chosen.
THE COURT: Oh.
THE WITNESS: The Police Department puts out schedules
every year and sometimes they are early and sometimes they are late. You
don't know.
THE COURT: Oh, okay.
BY MR. WILLIAMS:
Q. So it could have been any time from March to June?
A. I am just assuming, yeah, it was in that period.
Q. In any event, the scheduling of the vacations as best
as you can recall occurred after this meeting that you referred to, this
round-table meeting in January?
MR. GRANT: Or February.
BY MR. WILLIAMS:
Q. Or February? Thank you.
A. I would imagine it occurred after that, yeah. That would be too
early.
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Gary Wakshul - Direct
Q. And that was the meeting where you raised your hand when asked about
the confession?
A. I'm sorry, I missed the first part of that question.
Q. That was the meeting, this January or February
meeting, this round-table discussion with Mr. McGill that you raised your
hand in response to a question about hearing a confession --
A. Yes, somewhere towards the end of that meeting I remember that.
Q. So let me get the time frame here. You've got January,
February you're indicating that you could give testimony about a
confession, and then March, it would be sometime between March and June of
1982 vacations are scheduled?
A. Yes.
Q. And then sometime after that you are receiving
instructions not to go on vacation to conflict with the trial?
MR. GRANT: Objection, Your Honor: There was no
instruction don't take your vacation, I believe.
MR. WILLIAMS: I am going --
MR. GRANT: Don't touch me, and let me make my objection.
Page 92.
Gary Wakshul - Direct
MR. WILLIAMS: I just don't want the objection in front of this
witness.
THE COURT: Well, you have done it before.
MR. WILLIAMS: At sidebar.
THE COURT: You have done it before, Counselor.
MR. WILLIAMS: I would ask the witness to be excluded because --
THE COURT: You've had it before, Counselor. What is your objection?
MR. GRANT: My objection, Your Honor, I forget what even the question
was.
MR. WILLIAMS: I withdraw the question, then.
MR. GRANT: Thank you. All right.
(Discussion was held off the record at
this time
between Counsel for the
defense and the Commonwealth.)
BY MR. WILLIAMS:
Q. Now, in the Police Department are the summer months for vacation the
peak periods?
A. Yes.
Q. And are the dolling out of vacations, does seniority have any factor
or role to play?
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Gary Wakshul - Direct
A. Not as far as persons getting the vacation that they
want. Seniority depends on what type of vacation you get. Persons with a
longer period of time get longer vacations.
Q. Hmm-hmm?
A. So if you choose to take -- say if you had a two-week
vacation and a three-week vacation. If you choose to take your full
three-week vacation you would choose from a different lottery of
three-week vacations than the persons who are taking a two-week vacation.
Similarly for the four-week vacations. If they choose to take them all in
that one period, they would have a separate lottery.
Q. And seniority would have a role to play in whether you
could take one of these longer vacations?
A. Yes. If you were entitled to a longer vacation due to
your service time then that would be the only decision, which lottery you
wanted to take. If you wanted to take, if you had a longer period and only
wanted to take a two-week vacation, you had a choice, you could take a
four-week vacation, only use two weeks, or you could pull from the
two-week vacation, as I recall it.
Q. But in terms of what time frame you were permitted to go on
vacation, for example, the July
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Gary Wakshul - Direct
4th or the Memorial Day or the Labor Day, those scheduled
vacations, the seniority of the person makes no difference?
A. Well, the better vacation times?
Q. Yes.
A. It was purely chance.
Q. Purely chance. No, withdraw it. Now, on June 25th,
1982, for the record -- I think it's obvious -- we were in the midst of
trial at that point on the Jamal case. On June 25th, 1982, were you in the
City of Philadelphia?
A. Sir, I do not recall when the case specifically occurred. During the
early part when it was going on, I believed I was indeed in the City. I
was on vacation that I recall. But I was here.
Q. You were in Philadelphia while you were on vacation?
A. As far as I recall, during the early part of the vacation, yes.
Q. And on June 25th is when you commenced your vacation?
A. I couldn't tell you the exact date.
Q. If I show you a printout of your vacation schedule would that help
you?
Page 95.
Gary Wakshul - Direct
MR. GRANT: I would object to that. I haven't seen
anything like that. It hasn't been authenticated. So I would object to him
using what he purports to be his vacation schedule.
(Discussion was held off the record
at this time
between Commonwealth and defense Counsel.)
MR. WILLIAMS: Your Honor, just for the record: I am going
to refer to a printout that was provided to us by the Philadelphia Police
Department pursuant to a subpoena. In any event, I'm going to show it for
purposes of refreshing recollection.
MR. GRANT: And I would object for lack of foundation. If
it is only to refresh his recollection, I guess he could use a watermelon
to do that. But if this purports to be their vacation schedule, I still
object as to authentication. But use it for refreshing recollection
without any objection from me.
MR. WILLIAMS: Your Honor, we can stand on formalities and
in terms of expedition of this hearing because of the execution date, we
hesitate to have to go and call some person
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Gary Wakshul - Direct
from the Philadelphia Police Department to come into
Court to authenticate what they turned over to us pursuant to a subpoena.
Your Honor has discretion in this matter to permit us to enter this into
evidence as an exhibit. Otherwise, we would be forced to bring somebody in
from the Philadelphia Police Department at taxpayer expense, and that's
really ludicrous.
MR. GRANT: Your Honor, I don't think you do, with all due
respect to your powers, have any such discretion, because you can't
authenticate this. It caused them no problem at taxpayers' expense to
bring in the Governor of the State, or the Judge of the calendar room. And
all I am asking for is the proper legal basis and foundation to be met.
Simple.
MR. WILLIAMS: If that is the case then we will call a witness, Your
Honor.
THE COURT: All right.
MR. WILLIAMS: The one who responded to our subpoena.
THE COURT: Okay.
BY MR. WILLIAMS:
Q. In any event, I am going to show you a document.
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Gary Wakshul - Direct
MR. WILLIAMS: Could we just mark it for identification?
THE COURT: All right.
MR. WILLIAMS: Defense Exhibit.
THE COURT OFFICER: 14.
MR. WILLIAMS: Defense Exhibit 14 for identification.
Defense Exhibit 14 for identification only. Okay (handing).
(Police Department document was marked
Defense Exhibit
D-l4 for identification.)
MR. WILLIAMS: If you could look at that for us, please.
THE COURT OFFICER: D-14, sir (displaying).
MR. GRANT: Yes.
THE COURT OFFICER: D-14, Your Honor (handing).
THE WITNESS: Thank you.
MR. GRANT: Your Honor, I just want to say to defense
Counsel that had we been given this earlier, just shown these documents --
except whenever they find it convenient to themselves they throw a paper
on my desk -- I probably could have agreed to this. I just
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Gary Wakshul - Direct
don't know what it is. I never know from day to day.
THE COURT: I know, that's why I have asked them. And I
want from both sides here a list of your witnesses, of what they are going
to say, so I know in advance. Either side. You just can't drop something
on them. If you had given it to them in advance he could have checked it
out and maybe agreed.
MR. WILLIAMS: Your Honor, Mr. Grant's point is well taken.
THE COURT: Well, then let's do that, would you. I said I want it today.
And from both sides.
MR. WILLIAMS: Let me extend my apologies to Mr. Grant through the
Court.
THE COURT: Okay.
MR. WILLIAMS: I apologize to him for not providing him this
printout.
THE COURT: All right.
BY MR. WILLIAMS:
Q. Now I want you to look down there on the date in the
left-hand column -- first of all, up there in the upper right it indicates
your name, does it not?
A. Upper left?
Page 99.
Gary Wakshul - Direct
Q. Upper left, yes.
A. Yes.
Q. Wakshul, Gary?
A. Yes.
Q. Do you see that?
A. Yes.
Q. Now go down to the date June 25th in the lower, left-hand
column.
A. These are dates that I assume, the two at the end?
Q. Yes. Yes.
A. But what do you want, Counsel?
Q. June 25th, do you see that there?
A. Yes.
Q. And then from there going to the next page, all the way to July 8th,
do you see that?
(Pause.)
A. Yes.
Q. Does the fact that that printout indicates that from June 25th
--
MR. GRANT: Your Honor, I object to anything that it
indicates. If it's refreshing his recollection he could indicate what his
recollection is. But if he wants to introduce this document through the
witness, it's legally
Page 100.
Gary Wakshul - Direct
inadmissible.
MR. WILLIAMS: That's what I am about to ask him.
THE COURT: Why don't you come right out and ask him.
MR. WILLIAMS: That's what I am about to do.
MR. GRANT: The question is does it --
THE COURT: Refresh his memory.
MR. GRANT: Right.
BY MR. WILLIAMS:
Q. Does this document and what you have, what I just
directed your attention to, the date from June 25th to July 8th, refresh
your recollection as to whether you were on vacation? And I refer you
specifically to the letters V-A-C there, down the row, on those dates,
that you were in fact on vacation for that time period?
A. No, it does not refresh my recollection.
Q. Do you recall taking a vacation at some point in the summer months
of 1982?
A. I have a recollection of taking a vacation, of not being in work,
yes.
Q. And your recollection is that you were in the City of Philadelphia
during that vacation?
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Gary Wakshul - Direct
A. Not during the whole period. I recall in the early
parts of it, yeah, I was waiting. I was basically taking days off.
Q. And when did you, if at all, leave the City of Philadelphia during
this period?
A. I don't recall that I left the City of Philadelphia or
that I just -- I believe towards the end of that vacation period I did
take some time out of the City. But I don't know if it was an eight-day
consecutive period or it was several day trips out of the City, I have no
recollection.
Q. So just to be clear: When you did take a vacation,
whenever you did, whenever that happened, you didn't leave the City for a
long stretch of time?
A. Not in the beginning of the vacation, no.
Q. Okay. Then you said possibly you left for a few days towards the
end?
A. As I recall from my, from independent recollection.
This doesn't help. From independent recollection I believe that's how it
was done.
Q. Towards the end?
A. Yeah, somewhere at that point.
Q. Okay. Now, let's see, 1982, July 4th weekend in the
City of Philadelphia, City of Brotherly Love, the Liberty Bell and all,
4th of July, do you
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Gary Wakshul - Direct
remember if you were here in this beautiful City during the 4th of July
weekend back in 1982?
MR. GRANT: Objection: Asked and answered.
MR. WILLIAMS: I am directing him to particular dates.
MR. GRANT: Objection: Asked and answered.
THE COURT: I think he said he doesn't. Is that what you are saying?
THE WITNESS: Your Honor, I said I do not recall.
THE COURT: He doesn't recall.
THE WITNESS: Exactly where I was.
BY MR. WILLIAMS:
Q. Okay, you said that you were in the City for the early
part but then towards the later end of your vacation you left town
possibly?
A. My recollection is in compliance to a request to stay
while cases were going on, I was here. And as I recall it, my own
independent recollection was that I believed the testimony was over in the
case and I was just, I had not been called and I figured I would not be
needed and I was, I did take some time.
Page 103.
Gary Wakshul - Direct
I couldn't say if it was two or three days towards the
end of the vacation. But I do recall that I was still on vacation when the
information that I got was, or understood was that the trial had reached a
conclusion.
Q. How did you get that impression, Mr. Wakshul?
A. I would be disingenuous to say that I recall. I really
don't recall how I got it. It could have come from media, it could have
come from gossip, it could have come from anyplace, I really don't recall.
But it was my impression that since I was not needed that I had no reason
to hang around anymore.
Q. You didn't get it from the defense side, did you, that
impression, somebody from the defense?
A. I never spoke to defense or prosecutor during the entire time of the
trial that I recall.
Q. Did you, were you in City Hall at any point for
purposes of possibly appearing as a witness at any point during the trial,
if you recall?
A. I don't recall being here. My impression is that I was
not, but I really don't have any independent recollection of it.
Q. In any event, you indicated that during the, that you
were in town while testimony was being taken, you had that
understanding?
Page 104.
Gary Wakshul - Direct
A. Yeah, that's my recollection.
Q. And of course had you been asked by Mr. McGill the
prosecutor to testify in this trial, you certainly would have made
yourself available?
A. Yes.
MR. WILLIAMS: I have no further questions, Your Honor. Just give me a
moment.
(Discussion was held off the record
at this time among
defense Counsel.)
MR. WILLIAMS: Your Honor, with the Court's indulgence, if
you would just give me a moment to consult with Co-counsel.
(Discussion was held off the record
at this time among
defense Counsel.)
BY MR. WILLIAMS:
Q. Mr. Wakshul, my Co-counsel, lead Counsel, is far more
experienced than I, reminded me of a set of questions that I forgot to ask
so forgive me. You, you are familiar with the term patrol log?
A. Yes. Can you --
MR. GRANT: I would object. I would object to this line of questioning.
Patrol log
Page 105.
Gary Wakshul - Direct
or otherwise, if he is here -- and I believe he's here
because the Commonwealth spirited him away during the trial and sent him
on a paid vacation so they wouldn't have him, and that he heard a
statement made by the Defendant at some point in time in the hospital --
are the only two areas or bases that they gave as part of their offer of
proof. And now, of course, we are going to do what we usually do and go
off on some frolic and detour. I object.
MR. WILLIAMS: Let me propose the question that I want to
follow up with. He says he is familiar with the patrol log. I just want to
ask him --
MR. GRANT: I move to strike that answer so assume he didn't say
that.
MR. WILLIAMS: Well, my offer of proof for this line of
questioning is I simply want to ask him, Your Honor, if he prepared a
patrol log on December 9th, 1981, and where that patrol log is. That's
what I am asking.
MR. GRANT: I will withdraw the objection.
THE COURT: Well, I would assume -- go ahead.
Page 106.
Gary Wakshul - Direct
BY MR. WILLIAMS:
Q. Did you prepare a patrol log back on December, December 9th,
1981?
A. Going by my duties and my past experience, I believe I
was recorder in the wagon at that time so I probably would have been the
one preparing a patrol log. So I would assume that a patrol log was
prepared. Where it is, I have no idea.
Q. Do you know where patrol logs are lodged after you used them, is
there an archives of some kind?
A. I don't really know where they would go. I know they
are turned in to my supervisor. The tickets or car stops and various other
pieces of paper to go with them are distributed. Where the patrol logs go
is still a mystery to me.
Q. Patrol logs are itself something that you carry with you, right?
A. During your patrol for that evening or day or whatever, yeah.
Q. So you can record what is happening?
A. You put down the time you got a call, the address, and
the time that you were back from that call.
Q. And do you also put down in an abbreviated form the fact that you
made an arrest, or that
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Gary Wakshul - Direct
somebody reported a crime or some details?
A. Details would vary between officers as to what they
do. You could put down what the radio call you received was, you could put
down what you do. It could be anything.
Q. Is it safe to say that --
A. It's very extremely abbreviated.
Q. Right. I think in New York we call them memo books.
But what I want to ask you is, in these patrol logs, of all the functions
that they may serve, and they may serve many functions, is one of the
functions that they may serve as a memory aid? That is that you could go
back and look and find out what time something happened or where you made
an arrest or something like that?
MR. GRANT: Is he asking him what purpose it serves for him?
MR. WILLIAMS: Yes, of course.
BY MR. WILLIAMS:
Q. Did --
A. No.
Q. So it can never have that purpose for you?
A. Generally, once they are turned in I never see them again.
Q. No, while it is in your possession?
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Gary Wakshul - Cross
A. No, while it is in my possession, no, it is not a
memory aid. It is a record that the Police Department asks every 15 to 20
minutes to a half hour what you are doing at that specific time.
Q. Okay. So if that's true; then you remember all of
these details back on December 9th, 1981, about the time, the New York
license plate, et cetera, et cetera, that was from the fact that you had
the presence of mind to remember it?
A. Hmm-hmm.
Q. Not because you had recorded it in a patrol log?
A. That was not recorded in the patrol log, no.
Q. It was from your memory?
A. Yes.
MR. WILLIAMS: Thank you, Officer. Or Mr. Wakshul.
MR. GRANT: Good morning, sir.
- - - - -
CROSS-EXAMINATION
- - - - -
BY MR. GRANT:
Q. Good morning, sir.
A. Good morning.
Q. I guess it is afternoon at this point. Mr.
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Gary Wakshul - Cross
Wakshul, did you know that the reason that you were here
is because on page 6 of the Petitioner's Petition for Post-Conviction
Relief -- which is what this is, this hearing is about -- in the
declaration of Anthony Jackson, the attorney for the Defendant, Mr.
Abu-Jamal at the time of trial stated in the first paragraph near the
conclusion of the defense case I realized my error -- that is in not
subpoenaing you -- and asked that he -- you -- be produced. The prosecutor
refused, claiming Wakshul was down on vacation and unavailable. This
despite a notation on Wakshul's report that he not be allowed to go on
vacation during the trial.
Now, once your vacation is selected, sir --
A. Yes, sir.
Q. -- and it's done by lottery for these prime vacation
periods, other than the Commissioner or at the Commissioner's order, does
your sergeant have the right to say you will not take your vacation?
MR. WILLIAMS: I am going to object to what the rights of the sergeant
are.
MR. GRANT: Then I will go up the line, okay.
MR. WILLIAMS: I object to that line
Page 110.
Gary Wakshul - Cross
of questioning as to the obligations, duties and rights.
THE COURT: We will find out who is responsible for him being on
vacation or not on vacation.
MR. WILLIAMS: Well, let's bring those people in. When I
ask similar questions Your Honor constantly referred to --
THE COURT: But he knows. He at that time was a police
officer and he knows who says to him you can't go on vacation, you can go
on vacation, or whatever it is.
MR. WILLIAMS: He is not competent to testify, with all
due respect to my learned adversary here, as to what rights and
obligations his superiors have. We ought to have his superiors.
MR. GRANT: I will withdraw the question. I will withdraw the
question.
BY MR. GRANT:
Q. On D-11, which was a report on December the 9th, 1981,
which purports to be an investigative interview record of your comments
that night, sir, up in the top it says name and address and it has 6th
District, 3 squad, group C, no dash V-A-C. Now, you
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Gary Wakshul - Cross
say you don't recall much about the incident including
the investigator, sir. And I think you mentioned I have no idea who he is;
isn't that correct? Kaminsky?
A. Yes, that is correct.
Q. Well, would it surprise you to know that Mr. Kaminsky
is a Ms. Kaminsky and it is a she?
A. It wouldn't surprise me: I have absolutely no
recollection of who interviewed me whatsoever that evening.
Q. Nevertheless, where it says no V-A-C on that
statement, whoever Detective Kaminsky is, does she have the authority to
tell you you can't go on vacation for a case whenever that may go to
trial?
A. To the best of my knowledge in the Police Department, absolutely
not.
Q. And by writing that notation, was that indicating to
you that you had no right to go on vacation for whenever this case, which
just happened that very morning, an hour-and-a-half or whatever before,
that you had no right to go on vacation whenever they scheduled this for
trial?
A. No, sir. As I explained before, the notation no V-A-C
or no vacation is a general notation that's noted by investigators when
they ask the person they
Page 112.
Gary Wakshul - Cross
have been interviewing, police officer they have been
interviewing if they have a scheduled vacation, and when it is. If I
didn't have one or it's already past, they mark no vacation.
Q. Now, did you realize, sir, that on February the llth,
when Exhibit D-l3 was taken, or purported to be taken, February 11th of
1982, did you realize that the purpose and the thrust of that
investigation was essentially the Internal Affairs Bureau was
investigating and contemplating bringing charges against police officers
for the allegations in Mr. Jackson's complaint?
A. The only information that I had was that there was a
complaint and they were as a routine matter investigating any complaints
brought against police officers.
Q. And if --
A. I have no specifics.
Q. And if such complaints were founded, then what?
A. Then they would indeed proceed through the regular
procedures to arrest those police officers, or discipline them, depending
on the outcome of their investigation.
Q. And Mr. Williams, my brother at the bar,
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Gary Wakshul - Cross
stated to you on that date you had an epiphany and you
added an important detail that hadn't been mentioned before. Do you recall
that on direct?
A. I remember that question, yes.
Q. But in fact you had an epiphany that included two
important details? One you recalled was a statement made -- since they are
investigating police officers -- by someone to the Defendant or the
suspect at that time that he was in the care and custody of the police,
did you not?
A. Yes.
Q. And if that were a police officer, did you realize at
that time that that would be the subject of an investigation for police
misconduct, sir?
A. You are referring to the statement in response to Mr. Jamal: If he
dies you die?
Q. Yes, sir.
A. Yes, I was well aware at that time that a police
officer, if it was a police officer, was in trouble for that remark.
Q. Nevertheless, you told about that, did you not?
A. Yes, sir, I did.
Q. And at that time, since they were investigating misconduct of the
police, did you
Page 114.
Gary Wakshul - Cross
realize that that comment made by, if it was a policeman,
that if it was made by a policeman, that that comment was proceeded by
another comment made by the suspect who was there at the scene and to whom
the comment was directed by this third party?
A. That's correct.
Q. Is that what brought the Defendant's statement to your
mind: The fact that somebody else who may have been a cop was making a
threat, essentially, to this man's life?
A. I can't say 100 percent that that's what brought it to
my recollection at this particular juncture. I do recall that the
statement was made, and I do recall the response to that statement. And if
I'm recalling correctly, I was at this point realizing that that statement
was probably the complaint that was being investigated. And so both
statements had to be made at this time.
Q. Did you take the statement if he dies you die as a
threat of death, or serious bodily harm, at least, by whoever made it?
A. I didn't -- I don't think I took it to mean that. Judging by the way
that it was said.
Q. In what way was it said, by the way?
A. It was said in a tear-choked, angry, very
Page 115.
Gary Wakshul - Cross
emotional voice by someone. And I took it at that point
to mean that that person would face a trial and because of that statement
possible execution. And that's what was a response to the statement that
was made originally by Jamal.
Q. Now, you said you didn't see Officer Gary Bell, or
that you didn't recall during that transition of events whether Officer
Gary Bell or your partner or security personnel from Thomas Jefferson
Hospital or anybody else, the nurses, doctors, were there. Would it be
safe to say that nurses and doctors were on duty at Jefferson Hospital,
whether you recall it or not?
A. Oh, yes, yes, they were definitely there on duty at that time.
Q. And would it be safe to say that emergency personnel
in charge of the emergency room where persons walk in off the street were
there on duty at the hospital, whether you recall them or not?
A. I don't know about persons walking in from the street,
but it's quite possible that anybody could have been there at that time.
This was an open emergency ward.
Q. No, I am saying, whether or not you recall seeing
them, do you think it would be fair to say
Page 116.
Gary Wakshul - Cross
that hospital security personnel who work at Thomas
Jefferson, in or about the emergency room, whether you saw them or not,
would you think that they were not there on --
A. I would assume that they were there. Especially with all the police
there, yes.
Q. Now, despite the fact that you did not see Police
Officer, or recall seeing Police Officer Gary Bell at that time the
statement was made, would it surprise you to know that Officer Bell was
called to the witness stand and testified and he admitted that that
statement was made if he dies you die, and he is the officer that made
that statement?
A. I can't say I would be surprised. I just don't know
who said it. I didn't recognize the voice as it was being said. But it
could very well be anyone who was there.
Q. And if in fact Mr. Bell testified, that would be in
accordance with what you recall as to what transpired at the time Mr.
Jamal made the statement; is that correct?
A. Oh, absolutely. It was an immediate response to the,
to Mr. Jamal's statement. It was right afterwards. But I had --
unfortunately, I didn't see who, or hear who said that because as soon as
Mr.
Page 117.
Gary Wakshul - Cross
Jamal made his statement I took a step back. And there
was a little area I was in. I heard the immediate response within seconds
or less.
Q. Do you know Joseph LeGrand or Priscilla Durham, or did you know them
in 1981 or '82?
A. I don't know the names. I don't recall them, I have no
recollection of those names. I wouldn't know who they were. If I knew them
at the time I certainly didn't know their names.
Q. Now, when you finally received your vacation dates,
and you looked at what purported to be a submission from the Philadelphia
Police Department with dates and letters next to them, acronyms or what
have you, does that include regularly scheduled days off for any
particular officer, namely, RDO's, to the best of your observation?
A. It does not appear to.
Q. Well, because it does not appear on there, does it
mean that you don't get to take a day off or two days off during the
week?
A. No, sir, we work six on and two off regularly. At that time that was
the Police Department schedule.
Q. So that doesn't accurately reflect the time that you in fact were
not working?
A. No, it does not reflect all the times that I
Page 118.
Gary Wakshul - Cross
was working or not working.
Q. Now, sir, after your vacation is approved and if
somebody says whenever the trial is scheduled, if you're on vacation see
if you can stay around, does that mean see if you could stay within
calling distance to make yourself available if you are called to testify?
Tell us what you meant by that testimony?
A. In point of fact, I've never been asked that before
when I was on vacation. I assumed it would mean because the trial was
going on stay around and available in case we want to call you or you're
called by someone, and see what transpired. Which is the way I took it at
that time. And I did not go away on vacation, most of it was spent at
home.
Q. To stay around, does that mean stay around the
environs of the Courtroom outside in the hallway, to you?
A. Well, I didn't take it to mean that, no. Since I
wasn't working, I did not receive a subpoena, I saw no reason to stay
around the Courtroom, no.
Q. If you were given vacation by lottery or whatever
method, and you wished to go away, and they are asking you this, is this
an order or is this a request?
Page 119.
Gary Wakshul - Cross
A. This was a request, as I recall it.
Q. And if they are requesting you to forego whatever
plans you had, are you compensated for that in some way?
A. No.
Q. So --
A. No, I would be using my vacation. So if I was called
to Court it would still be -- well, I imagine I could put in a case of
being called on duty and not use a vacation day. But those days that I was
staying around I was not on duty, I was still on vacation.
Q. Did you receive a subpoena or Court notice from the
District Attorney's Office during this trial to appear in Court?
A. No.
Q. And I would like you to assume for the moment for the
purposes of this line of questioning and this discussion that the trial
began on or about June 3rd or June 1st of 1982. From June lst, 1982, until
the 4th of July, 1982, do you recall being asked to come into Court for
purposes of testimony or anything else by the Commonwealth?
A. I was never called into Court at any time that I know
of. I was never called. I never received any
Page 120.
Gary Wakshul - Cross
subpoena or Court notice.
Q. Did you hang around in the environs of the Courtroom
just out of curiosity to see what was going on in the trial?
A. No.
Q. That is here in City Hall?
A. No, I did not.
Q. Do you know what Courtroom this case took place in?
A. No, I do not.
Q. Now, did the defense at any point in time contact you
by subpoena or otherwise and ask you to come into Court and testify on
behalf of Mr. Jamal?
A. In '82?
Q. Yes, sir.
A. No, sir.
Q. Now, you indicated that when there are vacation dates
scheduled and a trial date is also scheduled, that oftentimes the D.A.
either, A, as you said and you felt has the responsibility to notify the
court of what dates are good and what dates are bad for trial, or to bring
it to someone's attention in the Police Department. Now let's look at the
scenario such as occurred in this case where you have scores of police
officers, and perhaps a dozen, or
Page 121.
Gary Wakshul - Cross
dozens of civilians. If the case is scheduled for trial,
say, during the month of June, and that is convenient with the schedules
of the majority if not all of the police officers involved, except for
Gary Wakshul, is it your understanding that the D.A. would ask the Court
to continue that case or to cancel that court trial date because one
officer is not available?
MR. WILLIAMS: Your Honor, I am going to object to that
question because this witness is not competent to address what the
obligations of the District Attorney are. We could have Mr. McGill testify
as to that.
MR. GRANT: He was competent on direct to give his
opinion, I don't see why he can't be competent 25 minutes later.
MR. WILLIAMS: I believe that line of questioning was sustained, Your
Honor.
MR. GRANT: It most certainly was not. I didn't even object.
THE COURT: Okay, let the question stand.
BY MR. GRANT:
Q. The question is this. When you have scores of officers and dozens of
civilians, and one police
Page 122.
Gary Wakshul - Cross
officer's vacation schedule may conflict with the trial
date already set, is it your understanding that, the squad leader even in
this instance, that they would cancel the trial because of that one
officer? --
A. From my experience I don't believe that that is the
case. There are often times when a case can proceed without certain
witnesses. And they do in fact. And it would be up to the judge also in
those matters to make a decision if the District Attorney were to ask for
a date. But generally if the case can proceed without a certain witness it
proceeds.
Q. Did someone surreptitiously, stealthfully, by
telephone or face-to-face conversation with you, ask you to absent
yourself from Philadelphia during the course of the trial so that Mr.
Jamal could not have the benefit of your services?
A. At no time.
Q. Did anyone suggest to you that we would like you to
leave town, we will pay for your vacation so you won't be around in the
unlikely event Mr. Jamal needs your testimony?
A. At no time. Nobody ever offered to pay for my vacation.
MR. GRANT: I have nothing further.
Page 123.
Gary Wakshul - Redirect
- - - - -
REDIRECT EXAMINATION
- - - - -
BY MR. WILLIAMS:
Q. Now, Mr. Wakshul, you would agree, would you not, that
the administration of justice is not beholding to a police officer's
vacation?
MR. GRANT: Your Honor, was that a question? And if it is,
I would like to object because I don't quite understand it. But could
counsel rephrase that.
MR. WILLIAMS: I will try.
BY MR. WILLIAMS:
Q. Is it your understanding that the administration of
justice takes priority over an individual officer's vacation schedule?
MR. GRANT: Your Honor, if there is a policy, I have no objection.
MR. WILLIAMS: Not a policy, if it is his understanding.
MR. GRANT: Well, his understanding has to be based on
something. And it doesn't matter what his personal opinion is, that is
irrelevant and I object to it on that basis. But if there is some Police
Department
Page 124.
Gary Wakshul - Redirect
regulation, I will withdraw my objection.
BY MR. WILLIAMS:
Q. Is there an understanding? And I will ask you what the
basis of that understanding is if there is one.
A. As I recall and understand vacation policy in the
Police Department at the time, historically there have been complaints
from the FOP that when an officer schedules a vacation, especially if they
have plans to go away, and then they are called into court, it is
financially disruptive to them as well as to their families. So that I
believe before I came on the Police Department that an agreement was
reached, an amicable agreement that when a police officer is scheduled on
vacation, that the Courts and the District Attorneys and the private
attorneys or Public Defenders would arrange those dates around the police
officer's schedule, if at all possible. But the police officer, as far as
policy is concerned, when he had a vacation, was told you may go on your
vacation.
Q. So your understanding was that there was in these
Courts and in this Court system, that there is some kind of arrangement
whereby the participants in the administration of justice -- that is the
District
Page 125.
Gary Wakshul - Redirect
Attorneys, Judges, and indeed even defense counsel, that
they will try to work around police officers to the best of their
ability?
A. In the scheduling of the beginning of cases, yes.
Q. And for that to work to accommodate the vacations of
police officers, that would entail communication between the Police
Department and members of the prosecution staff, would it not?
A. I can only render an opinion that that would be so.
Q. Well, it stands to reason, does it not, it is common sense?
MR. GRANT: I would object. He is saying that's
speculation and I don't want to comment, and I agree with him. I move to
strike that.
MR. WILLIAMS: I am going by his understanding, Your
Honor. That was the line of questioning, if it is his understanding as to
the open channels of communication so that the District Attorneys would
know whether someone is on vacation.
THE COURT: I am not denying that the District Attorney would know.
What's that got
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Gary Wakshul - Redirect
to do with this issue?
MR. WILLIAMS: Well, I think the issue --
THE COURT: You are on recross now as to what he brought up.
MR. WILLIAMS: Right, I am following up on that.
THE COURT: What did he bring up that you have to get into this?
MR. WILLIAMS: He brought up the whole aspect of whether
Mr. Wakshul went on vacation suggesting it was without the knowledge of
the District Attorney.
MR. GRANT: I didn't suggest anything of the sort.
THE COURT: He said --
MR. WILLIAMS: If the position is that the District
Attorney's Office indeed knew he was going on vacation, then if they so
state that I will withdraw the line of questioning.
MR. GRANT: I didn't state that and I won't state that.
MR. WILLIAMS: That's what I am trying --
MR. GRANT: I am saying it is beyond
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Gary Wakshul - Redirect
my cross.
MR. WILLIAMS: That's exactly what I am trying to pin down.
THE COURT: He is saying it is beyond what he brought up on cross.
MR. WILLIAMS: And, Your Honor, I am saying it isn't. My
notes indicate that he was asking questions about the circumstances under
which he went on vacation.
THE COURT: Well, he already testified that he was here in
the early part, he was here in the City. So what's the problem?
MR. WILLIAMS: Well, there is a big problem, Your Honor, in that he left
during --
THE COURT: He left because he felt that he wasn't needed
towards the end of his vacation. So what's wrong with that?
MR. WILLIAMS: Well, what's wrong with that is a man is
being sentenced to death without the benefit of his testimony.
THE COURT: No one bothered to tell him, as far as I could understand
from him.
MR. WILLIAMS: Isn't that the issue: Nobody bothered to
tell him? You just heard Mr. Jackson testify that there was no reason,
no
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Gary Wakshul - Redirect
tactical reason for not calling Mr. Wakshul. In fact, he
testified that had he had the reports that I had, he could have done
perhaps a better job than I did in questioning Mr. Wakshul. And I
certainly think --
MR. GRANT: He misstates the witness. I object. He
misstates what Mr. Jackson said. Mr. Jackson said invariably he had the
statement because Mr. Jamal couldn't have had it, and we know he did
because he gave his summation on his death speech from that, number one.
And number two, Mr. Jackson in the notes of testimony from the very day
when they asked for Mr. Wakshul asked the Defendant why didn't you tell
me, and the Defendant said I did tell you, I told you back at the motion
to suppress. I object to Counsel misstating the record in order to get his
way with this witness. I still object to the line of questioning.
MR. WILLIAMS: I only seek to inquire into the pivotal
question here, not simply on the prejudice aspect of the ineffective
assistance claim, Your Honor, but also on the claim regarding the bona
fides of his going on
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Gary Wakshul - Redirect
vacation. And that is the Brady aspect of our Petition.
That a defense witness was sent away on vacation, or at least --
THE COURT: Wait awhile now. Sent by whom?
MR. WILLIAMS: By the District Attorney's Office.
THE COURT: He said nobody told him.
MR. WILLIAMS: Or -- but I didn't get to complete my
sentence -- or that he was allowed to go on vacation with the complete
acquiescence of the prosecution knowing well full that he was a pivotal
witness on the confession.
THE COURT: The only evidence I know about that is at the
last minute when the defense asked for him.
MR. WILLIAMS: Yes, you are fully familiar. And you indeed
told Mr. Jamal that you and your attorney goofed. That's exactly right.
And we did indeed have Mr. Jackson, who said it was his obligation, did
indeed goof. Now the question is --
THE COURT: Mr. Jackson said all along that he didn't know who he was
going to call
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Gary Wakshul - Redirect
next, he has to confer with the Defendant here and decide who he wants
to put on.
MR. WILLIAMS: Yes, but I am a trial lawyer myself and I know that
--
THE COURT: Yes.
MR. WILLIAMS: -- that you consult with your client but
also you make an independent judgment as to who you should call.
THE COURT: Not in this case. Because my memory of the case is Mr. Jamal
was running the case.
MR. WILLIAMS: Your Honor instructed Mr. Jackson that he
had a moral and ethical and a legal obligation to defend Mr. Jamal to the
best of his ability.
THE COURT: Right.
MR. WILLIAMS: Independent of Mr. Jamal.
THE COURT: Right, because the Supreme Court, what
happened there was Mr. Jamal didn't want Mr. Jackson to do anything. Not
to even cross-examine witnesses. I didn't know at that time that Mr.
Jackson had represented the MOVE members. And they caught me up here on,
just as I was get getting ready to go out. And I told
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Gary Wakshul - Redirect
him, I said the Supreme Court in the MOVE case has said
that you are not to listen to him if he doesn't want to call anybody or he
doesn't want you to cross-examine anybody. You are to do it to the best of
your ability. And that's what I told Mr. Jackson to do. But Mr. Jackson
already knew that because he had represented the MOVE. Now, I didn't know
that.
MR. WILLIAMS: And Your Honor --
THE COURT: I thought I was telling him something.
MR. WILLIAMS: And I endorse that. Exactly right. He did
have a legal obligation to defend Mr. Jackson.
THE COURT: I know. He said he didn't even know what
witnesses to call. He was under, really he was under threats. He really
--
MR. WILLIAMS: Your Honor, where in the record --
THE COURT: From my talking to him I got that impression.
MR. GRANT: Your Honor, if I withdraw my objection is that
going to stop Counsel from testifying and just get on with this
matter?
MR. WILLIAMS: Of course it would.
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Gary Wakshul - Redirect
THE COURT: Are you withdrawing your objection?
MR. GRANT: Yes, Judge.
THE COURT: All right, he is withdrawing the objection, all right. Now
come on, let's go.
BY MR. WILLIAMS:
Q. Now, is it your understanding, you just described that
the Court system and the participants in the administration of justice --
which would include the prosecutor, the judge, and the defense -- would
try to accommodate the vacation schedules of police officers. My question
to you is, does that suggest to you or are you aware, therefore, for this
system of accommodating officers to work, that requires an open channel of
communication between the prosecutor and the Police Department?
A. I would imagine so.
Q. And that's because it stands to reason: Obviously the
prosecution would need to know the vacation schedules of police officers
in order to tell the Court of any possible conflicts; is that not
true?
A. It happens. There is also experiences where the prosecutor has
absolutely no idea when an officer
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Gary Wakshul - Redirect
is on vacation.
Q. And in those circumstances when the prosecutor is
derelict in finding out the vacation schedule of police officers --
MR. GRANT: I object to the use of that term also.
THE COURT: Rephrase your question, will you.
MR. WILLIAMS: I will rephrase it, Your Honor.
THE COURT: Without the derogatory remarks.
MR. WILLIAMS: I will rephrase it, Your Honor.
BY MR. WILLIAMS:
Q. So in those instances when the District Attorney is
unaware of the police officer's vacation schedule, then he is unable to
apprise the court and the defense that a potential witness, a potential
police officer witness, would be unavailable?
A. I believe that would be the outcome of it. If he
didn't know he would be unable to tell the court, sure.
Q. And in this description that you gave of how the
administration of justice works in this City, if
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Gary Wakshul - Redirect
a police officer doesn't ask, or there is no open channel
of communication, and that breaks down, so the police officer is unaware
of vacation schedule, that would affect the orderly administration of
justice, does it not?
A. Are you saying if a police officer doesn't know when his vacation
--
Q. No, when the District Attorney doesn't know. If in
those instances where the District Attorney is unaware of a police
officer's vacation schedule, and is therefore unable to tell the court or
defense counsel, that would impede the orderly function of the
administration of justice?
A. It can.
Q. It can. And indeed it did in this case, did it not?
A. I have no idea.
Q. You were unavailable on July lst, were you not?
MR. GRANT: Objection: He said he doesn't recall his
whereabouts. And whether it impedes the administration of justice is up to
the fact-finder of this Court and the Supreme Court of this State. He is
not competent to make a comment on that at all. As Counsel well
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Gary Wakshul - Redirect
knows.
BY MR. WILLIAMS:
Q. Now, by the way, you were required to provide in your
personnel file and possibly other files your home telephone number so that
you could be reached by superiors if necessary?
A. Yes, I believe that was a requirement.
Q. And therefore, if a District Attorney were in need of
your testimony, you could be reached at home?
MR. GRANT: Objection. That presumes that we have his
personnel files and they should know now by their subpoena process that is
not so.
BY MR. WILLIAMS:
Q. Is it possible for a District Attorney if you were
needed to testify, through contacts with any superiors in the Police
Department, to contact you at home?
MR. GRANT: I object to what is possible. Anything is possible.
BY MR. WILLIAMS:
Q. Well, given the fact that his superiors have access to
his home phone number, would that permit a prosecutor to contact you at
home, through contact of the superior?
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Gary Wakshul - Redirect
MR. GRANT: Objection.
THE COURT: Well, I think it's obvious that that's a possibility. So
what?
MR. WILLIAMS: So I would like to have an answer to that question.
THE COURT: You don't have to ask him, you could ask me. But go
ahead.
BY MR. WILLIAMS:
Q. Do you agree with His Honor that it is obvious that of course a
prosecutor could --
A. It is certainly possible to get my phone number. Many
people have gotten it recently that had no business having it.
Q. Is that the same phone number that you had back in 1982, by the
way?
MR. GRANT: Objection, objection.
THE COURT: I will sustain that.
MR. GRANT: I don't think you have to get into this personal matter.
MR. WILLIAMS: You are right.
BY MR. WILLIAMS:
Q. In any event, it is evident and it is clearly evident
to you as you sit here today that people could reach you by phone?
A. I'm sure people could reach me by phone, yes.
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Gary Wakshul - Redirect
Q. You had indicated, or Mr. Grant had indicated to you
that the February 11th interview, that the thrust, I think was his word,
the thrust of that interview related to an investigation into
brutality?
MR. GRANT: I said misconduct.
MR. WILLIAMS: I'm sorry, you are right.
BY MR. WILLIAMS:
Q. Misconduct; is that right?
A. It was an Internal Affairs investigation and by nature
that is some sort of police misconduct.
Q. And the interviews that we discussed this morning --
December 9th and December 16th -- didn't deal with misconduct of police,
it dealt with the critical question of who shot Officer Faulkner?
MR. GRANT: Objection. He tries to get beyond the scope of
my cross by using one document, and after he raises that issue, then he
goes back into something which of course he has no right to do. I object:
It's beyond the scope. That was very clever.
THE COURT: This is recross and if you want, I think you
have gone into that on direct anyway a long time ago. So let's move
forward.
MR. WILLIAMS: Very well.
Page 138.
Gary Wakshul - Redirect
BY MR. WILLIAMS:
Q. Now, you indicated the remark that you have in the
February 11th report that you were asked about, the remark being if he
dies you die, or something to that effect; do you recall that?
A. I recall the remark, yes.
Q. Okay. And that is in your February 11th report?
A. IAB report, yes.
Q. And the IAB investigator who was questioning you was
not only questioning you about potential or possible verbal abuse, but
also about physical abuse?
A. Umm, I don't recall any direct questions on that.
Q. No?
A. There is, one of the, the initial statement of the
staff inspector, it says I am investigating a complaint which indicates
that police officers, I believe the word is, physically and verbally
abused his client.
Q. Right, right.
A. Yes.
Q. Now, you testified on direct that when you heard Mr.
Jamal allegedly make this confession, that you noticed that your partner
was near him; correct?
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Gary Wakshul - Redirect
A. I stated that I read that in the report, my partner
was near him, on questioning from the investigator, yes.
Q. Right. And your testimony on cross was that
immediately after that confession there was this response if he dies you
die?
A. By immediate, if you mean within a few seconds, yes.
Q. Yes. So you hear the confession, and when you hear the
confession you notice your partner is near him, and you hear the remark if
he dies you die: I have that right?
A. Not really, no.
Q. Tell me where I am wrong?
A. I did not take specific notice of where my partner
was. My partner was with me, I imagine he was near me, and I was very near
Mr. Jamal at the time.
Q. Okay.
A. When I heard the first statement by Mr. Jamal while he
was sitting on the floor, I shot him, I hope the mother-fucker dies, I
immediately was turned around. I turned myself around, there was a little
area, I believe it was like an alcove for a doorway or something and I
turned into it. And as soon as
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Gary Wakshul - Redirect
that happened I heard the second remark, if he dies you die.
Q. So the person who uttered the remark if he dies you die was also an
officer that was present?
A. I have no idea who said it. I don't know if it was an
officer. I don't know if it was an officer. It was some person present at
that location.
Q. And obviously it was near enough to hear this remark?
A. Yes. I would --
Q. And you testified earlier that you knew what Officer Bell looked
like?
A. Yes.
Q. And that he was a colleague of yours in the 6th District, right?
A. Yes, he was.
Q. And yet you say you don't recall seeing Officer Bell present when
this remark was made?
A. No, I don't recall.
Q. And according to your report, the only person that you
recall being there with you, other than a lot of officers, is your
partner?
A. And I only recall my partner because he is with me all night. I
can't say that I recall where
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Gary Wakshul - Redirect
his face was or where he was actually standing. I don't
recall that at all. But I know he was there.
And there were several police officers in uniform. There
were at least two others because I needed two others to assist us in
getting him into the emergency room. And I don't recall who the other
people were.
Q. So my question to you, then: Of all these police
officers that you say were there, is it surprising to you that not a
single one told an investigator that night or the day after or the day
after that, or a week later, or a month later, that a confession was made
by Mr. Jamal? Is that surprising to you?
MR. GRANT: Objection. And I think I had a standing
objection to, despite his histrionics, it is still the same question that
he was barred from asking before. And I would ask that Counsel be
admonished for his theatrics, good though they are. It is still trying to
evade Your Honor's ruling.
THE COURT: I already ruled on that, Counselor.
MR. WILLIAMS: And the rule is?
THE COURT: The same as it was then.
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Gary Wakshul - Redirect
Bring him in. If you want these witnesses in here, bring
them in. Whether he is surprised or not doesn't make any difference. Bring
them in.
BY MR. WILLIAMS:
Q. In any event -- withdraw it. Would you have honored a
defense subpoena had you been served with one?
MR. GRANT: Beyond the scope: Objection.
MR. WILLIAMS: He was asked, he was asked if he had been
given a defense subpoena. I am merely asking a follow-up.
MR. GRANT: I didn't ask that. Why do you misstate the
evidence and the record continually, Counsel? I asked him was he ever
served. That's beyond the scope: I object.
MR. WILLIAMS: Your Honor, of course the Court's recollection holds.
THE COURT: But it's strictly speculation, whether he
would or would not. He wasn't served, period. So let's not speculate what
he would do.
MR. WILLIAMS: Your Honor, that's precisely what I am trying --
THE COURT: No, because he was already
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Gary Wakshul - Redirect
here and available. He said that.
MR. WILLIAMS: Okay, so if I understand the Court's
comment correctly, if Your Honor is concluding that he was here and
available then I need not ask the question, if that will be your finding
of fact.
THE COURT: He is speculating as to what he would do.
Because if it was necessary, the Court would order him in. So what's the
difference what he would want to do?
MR. WILLIAMS: My concern is -- and maybe the Court has
allayed my concerns -- is that I am simply trying to establish the fact,
which I would ask Your Honor to find at the end of this hearing, that
indeed at least for part of the time, as he has testified, he was
available to testify.
THE COURT: Well, it's obvious that's what he said.
MR. WILLIAMS: Very well. The Court has indicated it would
find that fact, I need not ask that question.
MR. GRANT: I don't believe the Court has indicated it would find any
such fact.
MR. WILLIAMS: That is precisely why I
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Gary Wakshul - Redirect
need to ask the question. Because I need to establish that fact.
THE COURT: What fact?
MR. WILLIAMS: That he was available to testify.
THE COURT: Well, he said, and I am sure he is telling the
truth, that he was here in Philadelphia and hadn't left in the beginning
part.
MR. WILLIAMS: And would he honor the subpoena.
MR. GRANT: That's beyond the scope.
MR. WILLIAMS: Is he saying, I mean I think the answer is
going to be obvious, and of course he would. But for the benefit of the
record, I think we ought to close that gap. Otherwise, we may have in a
future submission we would receive from the Commonwealth that there is no
testimony that had he been given a subpoena he nevertheless would have or
would not have come. I just want to insure that the Commonwealth will not
invoke that argument.
MR. GRANT: That is not a basis to avoid the rules of
evidence, just because he wants to close gaps and he wants to be sure.
We
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Gary Wakshul - Redirect
have rules here. Whether you come from New York City or
you live in this State, you walk in the room here, the rules of evidence
apply in this room.
MR. WILLIAMS: Right.
MR. GRANT: It is beyond the scope: I object.
MR. WILLIAMS: The rules of evidence allow me to ask if he --
THE COURT: It was beyond the scope of cross. This is recross now,
okay.
MR. WILLIAMS: I think the answer is obvious but nonetheless --
THE COURT: Counselor. It's beyond the scope.
MR. WILLIAMS: Very well.
THE COURT: Okay.
BY MR. WILLIAMS:
Q. You indicated on direct and reiterated on cross --
well, I'm sorry, perhaps not on cross -- you indicated on direct that you
would have testified had Mr. McGill asked you to testify?
MR. GRANT: Objection.
MR. WILLIAMS: Do you remember that?
MR. GRANT: If he indicated on direct
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Gary Wakshul - Redirect
as their witness, and he didn't indicate on cross, it's
clearly beyond the scope of cross. Is that a difficult concept, Your
Honor.
MR. WILLIAMS: Your Honor.
THE COURT: Counselor.
MR. WILLIAMS: I didn't ask the follow-up question. I was directing his
attention to an area.
THE COURT: Counselor, he is correct on that issue.
Counselor, I have ruled he is correct on that issue.
MR. WILLIAMS: If I can.
THE COURT: Counselor, I have made a ruling. You have an
automatic exception. Let's not argue with the Court.
BY MR. WILLIAMS:
Q. Now, you indicated that you weren't, you don't recall
physically being in this building at the time the trial was being
conducted on cross-examination; do you recall that?
A. That I don't recall?
Q. You were asked on cross-examination?
A. As far as I know, I was not here during the trial,
during the time of the trial in this building.
Q. Okay. Okay. Do you mean to suggest when you
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Gary Wakshul - Redirect
answered that question on cross-examination that
therefore you were unavailable to testify if the Commonwealth had called
you as a witness?
MR. GRANT: Objection to the speculation and the indirection.
THE COURT: I will sustain that. You are trying to get in
the back door what you can't get in the front door, Counselor. Please. All
right.
(Discussion was held off the record at
this time among
defense Counsel.)
BY MR. WILLIAMS:
Q. Now, on the February 11th interview regarding the
inquiry into physical and verbal abuse -- and you commented that perhaps
there might have been verbal abuse in the form of a threat to Mr. Jamal --
my question to you is did you see any physical abuse?
MR. GRANT: Objection: Beyond the scope of cross.
MR. WILLIAMS: That was a subject that was explored directly by
Counsel.
MR. GRANT: I didn't ask him anything about physical abuse at all.
MR. WILLIAMS: Your Honor, I am not required to re-ask questions that
are on cross.
Page 148.
Gary Wakshul - Redirect
If I am exploring an area --
THE COURT: The thing is, if you could bring it up in
direct you should bring it up in direct. You introduced this in direct.
Now, if you wanted to bring out anything about physical abuse, you should
have done it then.
MR. WILLIAMS: I didn't want to make an issue of it until --
THE COURT: Why not?
MR. WILLIAMS: Because if Mr. Grant wants to make an issue
of it then I will direct his attention to it on redirect.
THE COURT: No, if you didn't want to make an issue of it
in direct you can't do it in recross.
MR. WILLIAMS: In redirect.
THE COURT: Or redirect. You should have done that, you should have done
that at that time.
MR. WILLIAMS: Your Honor, I can re-raise it if it is raised in
cross.
THE COURT: It wasn't raised in cross, nothing about physical, only
--
MR. WILLIAMS: The issue of abuse was. Are we going to slice the baloney
that thin that
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Gary Wakshul - Redirect
since he could only raise, he can raise the issue of
verbal abuse, that somehow the whole category of physical abuse is --
THE COURT: I am saying to you, Counselor, in plain
English: If you could have raised this in direct you should have done it
at that time. Otherwise it's out.
MR. WILLIAMS: I know of no rule of evidence that fits that.
THE COURT: Well, I'm sorry if you don't know of any rule
of evidence. I realize you are from New York, but we're dealing with
Pennsylvania law here.
MR. WILLIAMS: I'm becoming acutely aware of that.
THE COURT: Counselor, I have ruled on it. Please don't argue with me
anymore.
THE COURT OFFICER: Quiet in the Courtroom, please.
MR. WILLIAMS: Very well.
BY MR. WILLIAMS:
Q. Now, you have testified on cross-examination and your
answers on cross-examination indicated that a case often can proceed
without a witness if there are, say, scores and scores of other police
officers
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Gary Wakshul - Redirect
who could testify, if one officer is unavailable, perhaps
a case nonetheless could go forward; do you recall that?
A. I recall that discussion, yes.
Q. By Mr. Grant?
A. Yes.
Q. Is it your understanding that it is appropriate for a
case to proceed where there are scores and scores of prosecution witnesses
that are police officers, that they can proceed without the benefit of a
police officer who is helpful to a defendant; is that your
understanding?
MR. GRANT: I object.
MR. WILLIAMS: Your Honor, that is squarely within an inquiry by Mr.
Grant.
MR. GRANT: I didn't say it was beyond, I didn't say it
was beyond the scope, Counselor. I think it's totally immaterial and
irrelevant and there is no suggestion whatsoever by either direct or cross
that that is the situation.
MR. WILLIAMS: Your Honor, all I am asking for is some
intellectual tenure here. Now, he asked the question can the case proceed
if there are scores of officers and if there is
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Gary Wakshul - Redirect
one officer that has a vacation. I am asking the crucial
question: What if that one officer that went on vacation happens to be an
officer that helps the defense.
THE COURT: Well, you are assuming things here.
MR. WILLIAMS: What am I assuming?
THE COURT: You are assuming that he is going to help the defense.
MR. WILLIAMS: I thought I spent the morning demonstrating that.
THE COURT: I know you have been trying to do that. But
there were other officers there and that you say made certain statements.
You could have used them.
MR. WILLIAMS: The point is could we have used Officer Wakshul.
THE COURT: Well, whether you could or couldn't, he wasn't here. All
right, Counselor.
MR. WILLIAMS: So my question to him, Your Honor, I said
if there are scores of officers who were available to testify --
THE COURT: Well, that's something you should argue to the Court, not
with the witness.
MR. WILLIAMS: So Your Honor is
Page 152.
barring me from that question?
THE COURT: I am barring you from that question, yes.
MR. WILLIAMS: Very well. In that event, I have no further
questions.
MR. GRANT: Nor do I, Your Honor. Thank you, Mr. Wakshul.
THE WITNESS: Thank you, Your Honor.
THE COURT: Let's take a luncheon recess until 2:15.
THE COURT OFFICER: 2:15, Your Honor? This Court now
stands in luncheon recess until 2:15 this afternoon at the call of the
Crier.
- - - - -
(Luncheon recess was held until 2:40 p.m.)
- - - - -
THE COURT OFFICER: Quiet in the room, please. Court is now reconvened.
Thank you.
MR. GRANT: Before we proceed, Your Honor, I would like to
bring something to the Court's attention which I think is of serious, if
not of grave, importance. There is a gentleman whose name was Mr. George
Ewalt.
Page 153.
THE COURT: Who?
MR. GRANT: Mr. Ewalt 13 years ago happened to be the
foreperson of the Jury in Mr. Jamal's case. Mr. Ewalt received a subpoena
from the defense to appear here in this Courtroom to testify for tomorrow
morning.
I would just like to invite Your Honor's attention to a
couple of salient features regarding this subpoena which I think is
indicative of the defense's abuse of your authority to do this over and
over again to person after person in this case for which there is no
affidavit, there is no averment that they have any material testimony to
provide, and they are not making offers of proof. And they are not
notifying us until the day it happens. Of course they didn't notify me of
this either but it just so happens that things come to peoples'
attention.
Now, they have what is called in Pennsylvania law,
including most other jurisdictions, in this case including New York City,
what is known as the no impeachment rule. And that means once the juror
has given their verdict, it's been read by the foreperson into
Page 154.
the record, there's been a polling of the jury -- and in
this case the Jury was polled both as to guilt and as to penalty by Mr.
Jackson -- and the verdict is thereafter recorded and in the Quarter
Sessions file, unless counsel is bringing to the attention of the court
some external or third-party influence impacting upon the jurors'
deliberations, the jurors are incompetent, incompetent to testify about
their deliberative process. That is, what went on in their minds that led
to their verdicts. And if there is interaction among jurors or a lack of
it, that still is not subject to impeachment by interview by Your Honor,
by affidavit by defense counsel, by investigation and inquiry by
investigators.
Now, you may note, Your Honor, that the defense submitted
to you the affidavit of one Steven Wayne Hawkins who appeared before Your
Honor as an attorney at the Bar of this Court on Wednesday, July 12th, the
first day of this proceedings. He is the young man that said he had six
years of death penalty experience and went on to state his opinion as to
what the law is. He interviewed an individual Juror who sat
Page 155.
on the Jury and deliberated -- and her name was Savannah
Davis. Because of his expertise, I imagine, as a death penalty counsel,
Mr. Hawkins must have known very well that he can not bring an affidavit
from a Juror into this Court or have her sit on this witness stand and
testify about the deliberative process of the Jury. So instead of doing
that, he crafts an affidavit where he purports to relate his questioning
of her and her responses.
Now, if that weren't enough, Counsel now purports to
bring in the foreperson of the Jury for much, I assume, the same thing. I
would refer Your Honor's attention, because I did a little research into
New York law to find out if there is something that goes on over there at
that table that is different than other parts of this world. And I found
out, Your Honor, that their activities are proscribed by and illuminated
by a case called Stein versus New York State, which is cited at 346 United
States Supreme Court, 156; secondarily cited at 73 Supreme Court, 1077.
And as to the pages of the particular, from the U.S. Reporter, it's 178,
and from the Supreme Court Reporter it's
Page 156.
1089.
This case is 42 years old. And it stands for the
proposition that -- in New York State, by the way, allegations raised by
affidavits such as Mr. Hawkins' involving either third-party information
-- which clearly from his affidavit did not -- and therefore improperly
introduced into the deliberations and not without any objectively
demonstrated effect to attempt to impeach the verdict of the Jurors -- in
Stein versus New York, the Appellate Division of the New York City Courts,
I imagine it is, dropped a footnote in which they said, we disapprove of
the conduct of defendant's counsel in obtaining a juror's affidavit. And
they cite civil rights laws under the State of New York, People versus
DeLucia and People versus Straff, among other cases. And it said, the
procuring of such affidavits and the failure to make timely notice to the
court of their existence may in fact conflict with disciplinary Rule 7-108
B of the Code of Professional Responsibility. The Code of Professional
Responsibility is basically called the ethics board. And it governs
the
Page 157.
practices of attorneys like us.
It is not only illegal now, it apparently is unethical.
And that's been the law where they come from for 42 years. Now, I don't
know what they think 'the law is here, but I am going to cite their
attention if I may to three cases: Carter versus U.S. Steel, 529 PA
Supreme Court 409, a 1992 case; Commonwealth versus Jeffrey Carr, a
Pennsylvania Superior Court case cited at 370 PA Super, page 1, a 1987
case; and Pittsburgh National Bank versus Mutual Life Insurance Company,
another Supreme Court case, at 493 PA 96.
The rule in Pennsylvania, as well as in a majority of
jurisdictions, is that a juror is incompetent to testify as to what
occurred during the deliberations. This rule is often referred to as the
no-impeachment rule.
Now, when it is said as well in a majority of
jurisdictions, I want to make it known to the Court that that majority
encompasses the State contiguous to ours, that the law still exists there:
It hasn't changed since they crossed the state lines. I highly resent what
they are trying to do, I highly
Page 158.
resent they are trying to intimidate these people. And I
ask Your Honor to have a hearing right now as to who served that subpoena
and what their intention was. And if they attempted third-party
interference with what the deliberative process was, I would like Counsel
sanctioned.
THE COURT: Do you want to answer?
MR. WEINGLASS: There is really no need to answer.
THE COURT: Why not?
MR. WEINGLASS: Because, number one, we did not, we never
have, and we don't intend to produce an affidavit of a Juror. We produced
affidavit number 10, which is appended to our Petition, which is not an
affidavit of a Juror, but an affidavit of Mr. Hawkins. Point number
one.
Point number two: It would save the Court a lot of time
and this record a lot of time if Counsel had read that affidavit. Because
-- please, Your Honor.
THE COURT: Let me just say one thing.
MR. WEINGLASS: I am at the Bar of the Court. The Court sat here for 10
minutes
Page 159.
listening to utter nonsense. Now I am trying to correct
the mis impression that was given to this Court.
THE COURT: Okay. Okay, go ahead. All right.
MR. WEINGLASS: Okay.
THE COURT: When you are done I have something to say.
MR. WEINGLASS: That's how I thought things are ordinarily done.
THE COURT: Don't tell me how to run this Courtroom.
MR. WEINGLASS: I am not, I am only making observations.
THE COURT: Don't make observations, okay.
MR. WEINGLASS: The law is clear beyond dispute that you
can not impeach a jury's verdict. If we were trying to impeach a jury's
verdict, we are wrong. The fact of the matter is, when you read the
affidavit, we are not attempting to in any way impeach a jury's verdict.
What the affidavit of Mr. Hawkins alleges is the very exception that
Counsel cited to the rule. You may always show outside the
Page 160.
deliberation room jury misconduct. And that's what we are
trying to show in this instance. And we are showing it by way of an
affidavit from Mr. Hawkins, who says that he had talked to a Juror not
about deliberations, but about what went on in the hotel after Court. And
what he got from that Juror is that the Jury foreman --
MR. GRANT: I object to him repeating on this record what he got.
MR. WEINGLASS: It's public, it's public.
MR. GRANT: Yeah, that's public. That's improper.
MR. WEINGLASS: I will read from it then, I will read from it.
MR. GRANT: I object, Your Honor.
MR. WEINGLASS: I will read from it.
MR. GRANT: What he is doing is placing the Jury's deliberative process
before Your Honor.
MR. WEINGLASS: It is not deliberative process, it is the
hotel. It is the hotel, it has nothing to do with the deliberations.
MR. GRANT: If it is not outside influence, it is improper.
Page 161.
MR. WEINGLASS: Paragraph 3. The youngest woman on the
Jury became very friendly with the Jury foreman George Ewalt. After the
first few days of the trial, they were soon joined by a third Juror, who
was a young white male. The three Jurors formed a, quote, pact, and they
would meet after dinner in Mr. Ewalt's room, which was next to Miss Davis'
room. They would meet in Ewalt's room and have the door closed, which was
in violation of Judge Sabo's order. Every night Miss Davis heard these
Jurors discussing the evidence presented that day at trial. Also
parenthetically, I might add, in violation of Your Honor's order. They
would discuss witnesses' testimony, and whenever one of them had a
different view of the evidence than the others, the dissenting voice was
invariably silenced and made to go along.
This is classic juror misconduct in violation of two
orders of this Court. It has nothing to do with deliberation. It has
nothing to do with any of the cases he cited. And it's entirely
appropriate to be brought before this Court. That's why Mr. Ewalt was
subpoenaed: In furtherance of this allegation.
Page 162.
THE COURT: All right. Just one minute. I said at the very
beginning I wanted a list of every witness you were going to call. I
wanted to know the purpose of that witness, what the witness was going to
testify, and why is it important in this case, what is the relevancy of
that witness. You have not given me that. And I told you I wanted it
today. And if you don't give it to me, I am not going to allow you to go
out and subpoena anybody and bring anybody in here whenever you choose. I
want that list from both sides. Both from the Commonwealth and from the
defense. And I want it spelled out, the purpose of that witness. The
relevancy of that witness.
MR. WEINGLASS: As I have informed this Court from day
one, we are operating under enormous time pressure. Mr. Ewalt --
THE COURT: Counselor, that has nothing to do with you
giving me a list of the names so I have it in advance. And they have it,
they know exactly who you are going to call, why you are going to call
that person. You are the one that's delaying these proceedings. If they
had this information, they wouldn't be able
Page 163.
to complain about it now.
MR. WEINGLASS: Mr. Ewalt --
THE COURT: We have no idea who you are going to call. I
don't have the slightest idea. And I asked for that at the very beginning.
And I'm asking for it one more time from both sides.
MR. WEINGLASS: You got two lists at the very beginning.
THE COURT: I don't have anything.
MR. WEINGLASS: Which you read into the record, incidentally.
THE COURT: Well, that was only a couple of names. And
every time I look at the name he says well, I don't know anything about
this, there is no affidavit, there is nothing, I don't know why you are
calling him.
MR. WEINGLASS: The name George Ewalt was given to them on June 5th,
seven weeks ago.
THE COURT: Did you give them a statement?
MR. WEINGLASS: His name is contained in an affidavit. If
they had read it they would know it. They just apparently haven't read
it.
MR. GRANT: Well, we did read it,
Page 164.
Judge. This was in the affidavit of Counsel for them, who
purports to be a witness for the Defendant, who took an affidavit of a
Savannah Davis, wherein -- who is a Juror, by the way -- wherein Savannah
Davis mentioned Mr. George Ewalt in a conversation with Mr. Steven
Hawkins. That is putting us on notice that is a witness they are calling?
That is ridiculous.
THE COURT: As I said, I don't have it. I want that list,
Counselor. And I want it immediately. If you don't give it to me, I am not
going to allow you to call any witnesses.
I want it from both sides; I want it no later than
tomorrow morning so I know where we are going.
MR. WEINGLASS: I would ask that Mr. Ewalt's subpoena be quashed.
THE COURT: I am quashing it at the present time. Get me
that list no later than tomorrow morning, okay. We will proceed with
whatever witness you have here now. Which is Mr. Greer, as I understand
it. And tomorrow morning I want that complete list from both sides. And I
want both sides to be supplied with why it is important, the relevancy of
that
Page 165.
witness. What, basically, the witness is going, roughly
what he is going to testify. What he is going to bring to the Court's
attention.
MR. WEINGLASS: The time constraints the Court imposed on us makes it
entirely impossible.
THE COURT: It is not impossible. It is an order that I am
giving you now. It is not impossible. If you had done it at the very
beginning it would have been no problem at all. Because I am wasting more
time when you are calling a witness and the D.A. says I don't even know
why you are calling him.
MR. WEINGLASS: That's because he hasn't read the Petition.
THE COURT: Counselor, give me that list by no later than tomorrow
morning. Both of you.
MR. GRANT: Yes, Your Honor.
THE COURT: Okay. Now let's get finished with Mr. Greer
and then we will worry about tomorrow, see who will be next.
MR. WILLIAMS: Good afternoon, Your Honor. Before we call
Mr. Greer, let me, because I think this is probably the best time
Page 166.
to raise this issue -- and it was touched upon yesterday
-- it concerns Police Officer Bell. And I know Police Officer Bell is in
the Courtroom. And we did subpoena Mr. Bell and you quashed that
subpoena.
THE COURT: Yes, because you have not given me a list. And
I am going to tell you for the last time: Get me that list by tomorrow
morning, okay. I want to know who you are going to call, what they are
going to testify, what is the purpose, the relevancy of that witness. So
that you put the Commonwealth on notice and they can't complain later on.
That's why they complain. Because if you had given me this list in the
very beginning like I asked you, we wouldn't have this problem.
Now let's proceed. Tomorrow morning give me that list, okay.
MR. WILLIAMS: And, Your Honor, Police Officer Bell will be on that list
and we will --
THE COURT: Well, if he is on the list tomorrow morning we
will see what he is going to testify to and we will see the relevancy and
I will take it up tomorrow morning.
MR. WILLIAMS: Fair enough. The other
Page 167.
matter is just briefly: As I understand it, there are two
police reports that were handed over to the defense pre-trial that we do
not have in our possession. As to why we don't have it I can not enlighten
the Court. All I can say to the Court is that we don't have the police
reports reflecting the statements of two individuals, a Harry Fairclough
-- that's F-A-I-R-C-L-O-U-G-H -- and Arnold Howard. They are civilians and
they apparently gave statements to law enforcement. And again they were
given to defense Counsel, I believe, pre-trial.
And I am asking the Court to request of the Commonwealth
that they extend the courtesy -- and I understand it is a courtesy -- of
replenishing those reports to us. And I apologize for the inconvenience of
that, but I just would appreciate the courtesy.
MR. GRANT: I will tell him the same thing as I told Mrs.
Wolkenstein, and because you may have more pleasing personality, the
result is still the same. We extended the courtesy before. Of course they
were precise and specific in what they wanted, we gave them
Page 168.
what they wanted. And it doesn't matter how much we give
them they are always going to want something else as a courtesy because
they know there is no Post-Conviction discovery rule. Now they think that
they can play fast and loose with the rules of evidence and ethics and
morality here and we will continue to abide by their requests.
But with all due respect to Your Honor, since there is no
discovery provision, I would deign to think that perhaps it's strictly up
to me on a voluntary basis, and I would decline their courteous
suggestion.
MR. WILLIAMS: Well, Your Honor, this is not about
personalities, it's about whether we can pursue a hearing in a fair and
proper manner. And all I am asking, I am not asking for new discovery,
what I am asking is that we have the same fund of information that was
available.
THE COURT: Well, did you ask the appellate Counsel if they had it?
MR. WILLIAMS: We did. We have attempted to get all of the
materials from both appellate Counsel, from trial Counsel, and from
Page 169.
every other source.
THE COURT: And Mr. Jamal?
MR. WILLIAMS: And from Mr. Jamal. From every source
that's possible before we go to the Commonwealth. We go to the
Commonwealth in the last instance. And I understand that they are busy.
We're busy and they're busy. But all I am asking for is the same fund of
information.
THE COURT: Well, see, if you tell the Court why it's
necessary maybe I could help you. But I don't know anything about this
because you have not given me any list. You haven't given the list to the
Commonwealth.
MR. WILLIAMS: This has nothing to do with witnesses that will
testify.
THE COURT: Well, if it has nothing to do with witnesses
who are going to testify then why is it relevant to this proceeding? Why
is it relevant to these proceedings?
(Discussion was held off the record at
this time among
defense Counsel.)
THE COURT: Counselor, let's take it up another time. Let's get this
--
MR. WILLIAMS: No, Your Honor, because
Page 170.
of this time frame that you have imposed upon us --
THE COURT: I have imposed it from the very beginning. If
you had listened to me you would have had it all in.
MR. WILLIAMS: No, these two names came to our attention
in connection with our investigating for purposes of presenting evidence
in this hearing. We believe --
THE COURT: Why don't you --
MR. WILLIAMS: We believe that these two individuals who
provided information to the police, that are memorialized in reports that
we do not have, have relevant testimony in this hearing. And that's what
we are asking.
THE COURT: Go out and talk to them.
MR. WILLIAMS: The point is, Your Honor, we don't have
their police statements. And this is not an idle request.
THE COURT: Did you go out and talk to these people? Did
your investigator who you are now going to call, does he know them?
MR. WILLIAMS: We need these reports of these individuals.
THE COURT: No, you don't. Talk to
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Robert Greer - Direct
them. Why don't you ask them what they said?
MR. WILLIAMS: Their statements are memorialized in police reports. Is
Your Honor suggesting --
THE COURT: I am not suggesting anything. I am saying that we will
--
MR. WILLIAMS: Yes, you are.
THE COURT: I am saying that we will proceed right now
with the witness you listed for today. Let's put Mr. Greer on. Try to work
it out among yourselves. If you can't, then, fine, come to me later. But
let's get moving.
MR. WILLIAMS: Your Honor, I will try to do that.
THE COURT: All right. Bring Mr. Greer in, please.
Robert T. Greer, having been duly sworn,
was examined
and testified as follows:
- - - - -
DIRECT EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. Good afternoon, Mr. Greer.
A. Good afternoon, sir.
Page 172.
Robert Greer - Direct
Q. Mr. Greer, would you state for the record your present occupation
and employment?
A. I am a security supervisor for SOS Security.
MR. GRANT: Where?
THE WITNESS: SOS Security.
MR. GRANT: Thank you, sir.
BY MR. WEINGLASS:
Q. Directing your attention back to January of 1982, what
was your occupation and employment at that time?
A. I was a private investigator.
Q. Were you a licensed private investigator in the Commonwealth of
Pennsylvania?
A. Yes, I was.
Q. And did you maintain an office in the City of Philadelphia at that
time?
A. Yes, I did.
Q. And how long had you been a licensed investigator prior to January
of 1982?
A. Hmm, approximately three years.
Q. Now, in that month, January of 1982, did you know an
attorney in the City of Philadelphia by the name of Anthony Jackson?
A. Yes, I do.
Q. And did there come a time where you were
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Robert Greer - Direct
contacted by Mr. Jackson relative to your performing
investigative services in the case of Commonwealth V. Jamal?
A. Yes, there did.
Q. And did he ask you if you would assist him in
conducting an investigation in the defense of Mr. Jamal?
A. Yes.
Q. And as a result of his request, did you in fact become
involved as an investigator in the defense of Mr. Jamal?
A. Yes, I did.
Q. Incidentally, are you appearing today pursuant to a Court
subpoena?
A. Yes and no. I've been asked to come and I was subpoenaed last week
and earlier this week.
Q. And who asked you at that time?
A. I was subpoenaed by the District Attorney this week and by you last
week.
Q. Now, back in 1982, did you accept a Court appointment
as an investigator on the defense of Mr. Jamal?
A. No, I didn't.
Q. And could you explain why that was?
A. Why I didn't accept the appointment?
Page 174.
Robert Greer - Direct
Q. Yes.
A. It didn't pay enough money.
Q. Were you still working as an investigator for the
defense in the Jamal case when the case went to trial in June of 1982?
A. No, I wasn't.
Q. And why was that?
A. I was only offered $150 on the appointment, it just wasn't enough
money.
Q. Now, while you were working on the defense case, prior
to June of 1982, did you have occasion to examine the discovery materials
that were turned over to Mr. Jackson?
A. Yes, I did.
Q. And was that the first thing that you did in the
course of your working as an investigator on the case?
A. No, sir. The first thing I did was talk to Mr. Jackson and Mr.
Jamal.
Q. And after that?
A. When the discovery came I studied that discovery.
Q. And after that did you have occasion to visit the scene where the
shooting occurred?
A. Many times.
Page 175.
Robert Greer - Direct
Q. Do you recall if, Mr. Greer, whether or not you had
occasion to investigate an individual known as Cynthia White?
A. I saw her several times; I've never talked to her.
Q. And did you see her at her residence?
A. No. She never was home.
Q. Where did you see her?
A. Most of the time I saw her on the corner of 12th and Locust.
Q. And on those times that you saw her, was that more than once?
A. Oh, yes.
Q. Did you have occasion to talk to her?
A. No, I didn't.
Q. Why was that?
A. There was always a car parked adjacent to her with two
people in it that appeared to be two plainclothes police officers.
MR. GRANT: I object to what it appeared to be unless he could
substantiate that.
THE COURT: Strike that last phrase.
BY MR. WEINGLASS:
Q. Now, Mr. Greer, at this time you had been an
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Robert Greer - Direct
investigator for four years?
MR. GRANT: I believe he said three.
THE WITNESS: Three years.
BY MR. WEINGLASS:
Q. Three. You knew what a plainclothes policeman looked like?
A. Yes.
MR. GRANT: Objection. Move to strike that.
BY MR. WEINGLASS:
Q. To your experience and observation, were those
plainclothes police officers who were near Miss Cynthia White?
A. They appeared to me, yes.
Q. Did you ever have an opportunity to talk to her?
A. No, I didn't.
Q. Was there ever a time to your observation that these
individuals who were in a car left the area when she was there?
A. No, I never stayed there and watched her. The only time I saw her
they were there also.
Q. So you never saw her without them?
A. No, I didn't.
Q. And could you, to the best you can recall,
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Robert Greer - Direct
describe what these individuals looked like who were at or near
her?
A. They were both white, one male, one female. They were in a little
red car.
Q. Was the car just parked at an intersection or was it moving?
A. Parked at the curb, yes.
Q. And was it parked at a curb near where she was standing?
A. Yes.
Q. Now, were there any other, was there any other
individual who you spent time attempting to locate for the purpose of
questioning?
A. I attempted to locate a gentleman who fit the
description of the person that was seen running away.
Q. And could you describe the height and the weight of the gentleman
who you were trying to locate?
A. I believe it was approximately six-foot-two, over 200
pounds, dreadlock hair, red fatigue or Army-type clothing.
Q. And his race?
A. He was black.
Q. And what information had you received relative to that
individual in the locale where the shooting
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Robert Greer - Direct
occurred?
A. In statements he was described as running away from the scene.
Q. Now, did you prior to this time know of an individual,
know of an individual who fit that description?
A. There was an individual that fit that description, he had been there
for years, to my knowledge.
Q. And did you try to find him?
A. I looked for him.
Q. Were you able --
A. No, I never was able to find him. I looked for him many times.
Q. Do you know a gentleman who is an attorney at that time by the name
of Ben Johnson?
A. Yes, I do.
Q. Did you discuss this with Mr. Johnson?
A. Yes, I did.
Q. Did he know of this individual?
A. Yes, he knew him.
Q. Was his office located near the intersection of 13th and Locust?
A. No, his office wasn't there, but he, ahh, he was there quite
often.
Page 179.
Robert Greer - Direct
Q. And he indicated to you he knew who this individual was?
A. Yes.
Q. And when did you abandon your efforts to find this person?
A. I'm not sure I ever did. I still looked for him when I go down that
way.
Q. Even down to this day you look for him?
A. I looked for him the past 14 years. I've never made a
concerted effort but I always looked to see if he was around. Because he
was always there prior to this.
Q. And to your knowledge, from December 9th, 1981, has
anyone ever located him again at that intersection?
A. Not to my knowledge.
Q. Now, were you ever asked by Mr. Jackson to locate an
individual by the name of Debbie Kordansky?
A. Not that I remember.
Q. Did you in the course of your work as an investigator
on the case have occasion to locate and interview a witness by the name of
Dessie Hightower?
A. Yes, I did.
Q. And did you tape record his statement? With his permission?
Page 180.
Robert Greer - Direct
A. I'm not sure -- yes, yes, I believe I did tape record
his statement. With his permission, of course. If I recorded it I asked
him first.
Q. Right. And did you also locate and tape record a
statement by a gentleman by the name of Robert Pigford?
A. Yes, I did.
Q. Now, how were you able to locate these two individuals?
A. These two individuals' statements still had their address on it.
Q. And to your knowledge did any of the other statements
that were received in discovery have the address of the individuals?
A. I don't believe they did, sir.
Q. Have you in the course of your experience working as
an investigator for the defense received discovery materials where the
address is indicated in the police statement?
A. The address is always there, yes, sir. Normally.
Q. But it wasn't given in this instance?
A. No, sir.
Q. Now, Mr. Greer, do you recall if you submitted a bill
to Mr. Jackson for the work that you did in
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Robert Greer - Direct
the case?
A. Yes. He told me to submit a bill for the time that I had spent,
yes.
Q. Do you recall approximately how much your bill was?
A. Approximately $500.
Q. And was that money that Mr. Jackson had paid you himself?
A. As far as I know he did, yes. He gave it to me.
Q. Did he give it to you when you started your work?
A. No, sir.
Q. When did he pay you?
A. I don't remember exactly but it was during the course
of the investigation. Towards the end he indicated that he was having a
problem with getting money for me so he told me just submit my bill. And I
did.
Q. And the hours that you have indicated, you spent 22.5
hours, they were all spent prior to trial?
A. Say that again, sir.
Q. The hours that you indicated in your bill that you
spent 22.5 hours on this case was all spent prior to the trial?
Page 182.
Robert Greer - Cross
A. Yes, it was.
Q. And you were no longer available to Mr. Jackson, or
Mr. Jamal, during the trial because there was no money available?
A. That is correct.
MR. WEINGLASS: May I have just a moment?
(Discussion was held off the record at
this time among
defense Counsel.)
MR. WEINGLASS: Thank you, Mr. Greer. I have no further questions.
- - - - -
CROSS-EXAMINATION
- - - - -
BY MR. GRANT:
Q. Good afternoon, sir.
A. Good afternoon.
Q. You've been a policeman in the past, Mr. Greer?
A. That is correct, sir.
Q. And how long, sir?
A. Ahh, 12 years, 14 years.
Q. Were you ever elevated to the rank of detective?
A. No, sir.
Page 183.
Robert Greer - Cross
Q. You never were trained as a detective?
A. No.
Q. And what were your duties as a police officer when you worked as a
policeman?
A. I worked in traffic, I worked in intelligence.
Q. So when you worked in traffic, tell the Court what you do?
A. In traffic?
Q. Yes.
A. Various duties. From details, traffic assignments, crime. We did
everything.
Q. When you say crime, what do you mean by that, sir?
A. We worked the regular crime patrols. We patrolled certain areas, in
high crime areas.
Q. And did the Traffic Division wear white hats back then like they do
now?
A. We wore white hats and helmet, yes, sir.
Q. And when you say you patrolled high crime areas, was this on the
highway?
A. No, in City streets.
Q. In the City streets. Can you tell me how that worked,
who you received your assignments from and things of that nature?
A. Well, after traffic was over, we were still
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Robert Greer - Cross
working, we went out and we patrolled certain areas.
Center City, South Philadelphia, West Philadelphia. We received our
assignments from our district.
Q. From your district --
A. Yes, sir.
Q. -- commander? And of the 12 years that you put in with
the Police Department, how much time do you think was spent in the high
crime areas, as you say, patrolling, if you could give me a
percentage?
A. That would be pretty hard to say. I couldn't even estimate that,
sir, I'm sorry.
Q. Would you say that once you began being an
investigator, knowing the detectives that you knew in the detective
divisions, that being a private investigator was very much like being a
detective for the Police Department except that you had a different
paycheck method?
A. I don't think so, no. It was quite different.
Q. Tell me what the differences are, sir?
A. The difference was you worked alone. You had to do all of your
studying within yourself.
Q. I'm sorry?
A. You had to do everything within yourself. You had to
study what you were doing. Like when I got an assignment, I would take the
assignment and study it.
Page 185.
Robert Greer - Cross
I would read the discovery first. Then I would determine
from the discovery who I needed to talk to to reconstruct the crime or the
scene. But the difference is I had to do it all myself, I had to take it
from beginning to end.
Q. And as a private investigator, when a person would
hire you and other ancillary services to yours, such as a photographer,
since you talked to Mr. Jamal, you talked to Mr. Jackson, you were
familiar with the crime scene there between 12th and 13th and Locust
Street, would you direct the photographer's efforts?
A. Would I direct his efforts?
Q. Yes, sir.
A. I would take him along for pictures if I needed pictures.
Q. You would take some yourself?
A. Oh, yeah.
Q. You had your own camera?
A. Yes.
Q. When you submitted your bill, your petition for
payment or reimbursement, did that include any expenses you incurred for
taking photographs?
A. If it was applicable, yes, sir.
Q. Was it applicable?
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A. In this case, no, sir. I didn't get to that point.
Q. So did you direct the photographer or not?
A. No, sir.
Q. Now, you say at that time you had been a private
investigator -- now we are talking December of 1981 -- you had been a
private investigator for three years?
A. About that, yes.
Q. And this was immediately after you left the Police
Department, or did you have a job in between?
A. No, I had jobs in between. I worked as an investigator with the
Strawbridge and Clothier.
Q. Strawbridge and Clothier?
A. Yes, I did.
Q. What else?
A. Well, what else did I do? I worked as a special
investigator for SEPTA. Ahh... I believe that was, that was it as far as
in that field.
Q. Okay. Now, in 1981 you had interacted with detectives
and personnel from the detective bureaus I guess throughout the City,
would that be fair to say, in your 12 years?
A. Oh, yeah.
Q. And some of those observations and
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interactions involved undercover police officers, people in
plainclothes; correct?
A. Yes.
Q. And have you ever been on any undercover assignments, sir, while you
were a policeman?
A. Yes.
Q. And did you work plainclothes?
A. Ahh... I think I did. I'm not sure, it was a long time ago.
Q. Well, it would be kind of hard to be incognito walking
around in a police uniform and a white hat, wouldn't it?
A. It would be. It would be, yes, sir.
Q. So you used plainclothes, then, I assume when you were on these?
A. Maybe I misunderstood what you said, undercover. I had
worked in places where it was like takeouts. I would not be undercover the
way that you described it.
Q. So you never worked as an undercover officer?
A. As such, no.
Q. But you have seen detectives who are in plainclothes; correct?
A. That is correct.
Q. As a matter of fact, there is no uniform for a
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detective in the City of Philadelphia and never has been,
so they are always in plainclothes; correct?
A. Correct.
Q. So when you say you saw these people who were working
undercover, you just meant that they appeared to you to be detectives from
the Philadelphia Police Department?
A. They appeared to be police officers, yes, sir.
Q. How does a police officer appear?
A. How does a police officer appear? I assumed that they
were police officers simply because they never left the scene. If she was
there, they were there.
Q. Well, let me ask you this, Mr. Greer.
A. Yes.
Q. When Mr. Jackson sent you out to embark upon this
mission to interview these witnesses, you of course had a photograph of
each person that you sought out and wanted to interview; correct?
A. That's not correct.
Q. That's incorrect. Well, you knew Cynthia White from
having had personal dealings with her, I take it?
A. That's also not correct.
Q. Well, then you knew Cynthia White because she
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was related to you?
A. That's not correct either.
Q. Well, then you knew Cynthia White and would recognize
her face because she was a friend of a friend of yours?
A. Not correct.
Q. Well, then tell us how you knew what she looked like?
A. Cynthia White came to the Court. But I knew Cynthia
White because people out on the street that knew her pointed her out to
me.
Q. Oh. So you went up to persons. Well, who are those people that
pointed her out?
A. It was 14 years ago, I really couldn't even tell you
about that. People that knew her. Cynthia White was a prostitute that
worked the area. I knew people that worked near her.
Q. And Cynthia White, that's a female name, is that any
more or less common than John Brown or Mary Jones?
A. It's probably not as common.
Q. And do you know any other Cynthia Whites, have you
come across any persons named Cynthia White in your years as an
investigator and human being?
A. Not that I can remember.
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Robert Greer - Cross
Q. But you were an investigator at that time, right?
A. That is correct.
Q. And you walked up to people and said do you know
Cynthia White and they pointed to some person over there and they said
that's her. So you went over there and watched her, right?
A. It wasn't quite that simple. The people that I talked
to were people that I knew and people that knew me. But when I asked if
they knew Cynthia White, they wouldn't respond unless they did know
her.
Q. They knew a Cynthia White?
A. They knew the one I was talking about, sir.
Q. How do you know?
A. Because I had a description of her.
Q. What was it?
A. Short, dark skin, black female. Approximately 20 to 23 years of
age.
Q. And are you dark skin?
A. Yes, I am.
Q. Am I dark skin?
A. Yes, you are.
Q. Was she? After you got the description and then
you saw the person, did you determine that yes
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in fact she was dark-skinned, sir?
A. Yes, I did.
Q. Was she as dark as me?
A. That's 14 years ago, I don't remember really what she looks like
now.
Q. I am not asking you that. I am not asking you what she
looked like. I am just asking you how dark her complexion was?
A. If I remember, sir, she probably was as dark as you, sir.
Q. Was she as dark as you?
A. I don't remember that.
Q. So you don't remember her complexion?
A. I don't see myself every other day so I can't tell you how dark I
am.
Q. Well, you look in the mirror like everybody else?
A. I am not the type that looks in the mirror constantly. I look at
other people.
Q. I see. Now, sir, you didn't have a picture of this
person, and you didn't know her of your own personal knowledge, and you
took somebody's word for who she was. Did you try to go about any
independent investigation on your own to verify that this person was who
Mr. Jackson was going to pay you bucks to
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watch?
A. I was positive after talking to the people that I
talked to that she was the correct person.
Q. I see. And who trained you to be a private investigator?
A. My experience came from being an investigator at
Strawbridge and Clothier and being with the Police Department. I put in
law enforcement at that time about 35 years. I was absorbing knowledge
from other people.
Q. And you refused to take a Court appointment in this case; is that
right?
A. I couldn't afford to take the Court appointment, sir.
Q. Could you afford to take Court money?
A. I took no Court money for this.
Q. Oh. You didn't receive any monies from the Court of
Common Pleas even if they had been allocated to you for that purpose?
A. I did not.
Q. You said you worked 22 hours on this case, 22-and-a-half hours?
A. 22-and-a-half hours is what I billed him for, sir.
Q. How do you know that?
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Robert Greer - Cross
A. How do I know what I billed him for?
Q. How do you know how many hours you worked?
A. I only billed him for 22-and-a-half hours, I worked a
lot more than that. But the money, he could only raise approximately $500.
So I kept my bill around the money that he had.
Q. How long, for what period of months did you work for Mr. Jackson on
this case?
A. To what period of months? I think I first talked to him in
January.
Q. Yes, sir.
A. I probably finished up with him after talking to High,
Hightower, yeah, after talking to Hightower.
Q. I know, but I don't know when you --
A. Probably May, April or May.
Q. So you worked four or five months on it, on this case?
A. Off and on, yes.
Q. Did you know that Mr. Jamal was the client Mr. Jackson wanted you to
investigate for?
A. I beg your pardon?
Q. Did you know that Mr. Jamal was the Defendant in this case?
A. Yes, I did.
Q. Did you know what the charges were?
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Robert Greer - Cross
A. Yes, I did.
Q. Did you know that he was charged with a capital murder
offense for which his life could be taken?
A. Yes, I did, sir.
Q. Yes, you did?
A. Yes, I did, yes.
Q. Well, you say you worked 22-and-a-half hours. Do you have any proof
of that here today?
A. No. I don't have records with me today, no.
Q. Well, did you not receive a subpoena duces tecum to
bring any and all records reflecting your pay schedules, your billings,
your accounts receivable and any and all money received in this case, did
you not receive such a subpoena?
A. A subpoena was left at my mother-in-law's house. I
never received the subpoena, I was just told what day to come here.
Q. No, you directed that the subpoena be left at your mother-in-law's
house?
A. Yes, I did.
Q. So it was left where you said to send it?
A. Yes.
Q. So you saw it, right?
A. I never knew it was there.
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Q. Why didn't you look or ask?
A. Actually, I didn't know what the subpoena said; I only
thought you wanted me and records of my investigation for Mr. Jamal. I
didn't know anything about the other things you were talking about.
Q. Oh, okay, well, tell me where you came up with 22.5 hours?
A. Where I came up with 22.5?
Q. Yes.
A. That was the approximate hours that I billed him for. I worked a lot
more than that.
Q. How do we know that you billed him only for those
hours? I mean what do you have 13 years later that proves that?
A. I don't have anything, sir.
Q. Well, is it possible --
A. Anything that I billed him for would have been with the Court
records.
Q. With the Court records?
A. With his records, his records with the other attorney.
Q. He said he doesn't have any records. Mr. Jackson testified.
A. He doesn't have any records?
Q. No, sir.
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A. Oh.
Q. So we have to take your word for it, and this is a 13-year-old
recollection?
A. I only billed him for the 22-and-a-half hours and I
only received the $500 from him. That's all I received.
Q. You didn't receive $562 from him?
A. I received $500 from him.
Q. Well, when you went out to interview these people, who
did you tell them you represented and who did you say paid you?
A. I didn't tell them anyone paid me. I told them I was
working for the defense of Mumia Abu-Jamal. If they asked.
Q. If they asked?
A. Yes, sir.
Q. And if they didn't ask you didn't say?
A. I didn't say.
Q. Why did you use that, why didn't you just say you
worked for Mr. Jamal through Anthony Jackson?
A. Because that's who I was working directly for, Mr.
Jamal. Anthony Jackson was the person I reported to, the person that paid
me.
Q. Who?
A. Anthony Jackson.
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Q. Well, Anthony Jackson, he doesn't have a middle name
that he's called Anthony Mumia Abu-Jamal Defense Committee Jackson, does
he?
A. I don't think he does, no.
Q. Nor I don't think he does either. And working for the
defense of Mr. Jamal, was he being defended by a committee?
A. I didn't say a committee. I don't know, I didn't know anything about
a committee.
Q. No, I didn't think you did. But back in March of '82 you did --
A. Back --
Q. Let me read you something. You submitted this as part of your
affidavit to Mr. Weinglass.
A. Yeah.
Q. And this is a letter to Mr. Thomas Leon Graves,
address I will omit, here in Philadelphia, March 16th, 1982. You are
Robert T. Greer, Investigator, 805 One East Penn Square -- or you were
then?
A. That is correct.
Q. Dear Mr. Graves, this letter is in response to your
phone call to Mr. E. Steven Collins -- who testified here, by the way,
earlier in the proceedings -- of the Georgie Woods Show. I have
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been retained --
Does that word have a special meaning to you: Retained?
A. The word has a meaning to me, sure.
Q. What does it mean to you?
A. It means that I have been paid by.
Q. That's what I thought. I have been retained by the
Mumia Abu-Jamal Defense Committee to investigate the incident of his
arrest. Now, who was the head of that committee that paid you?
A. I didn't write the letter. I signed the letter but the
letter was written by Anthony Jackson, it was dictated to his secretary --
Q. Wait, wait, wait. First --
MR. GRANT: May I approach, Your Honor?
THE COURT: Yes.
BY MR. GRANT:
Q. You didn't write this letter but you signed this letter?
A. I signed -- there were several letters sent out of that nature. I
didn't write any of them.
Q. Well, let me ask you is this your signature on this particular
--
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A. That is my signature. I have seen this.
Q. You have seen this?
A. That's right.
Q. As a matter of fact, you attached this to their exhibits?
A. I didn't attach anything to their exhibits.
Q. You submitted this to Mr. Weinglass so he could attach it, didn't
you?
A. I submitted nothing to Mr. Weinglass.
Q. What if they were saying in this letter that you
didn't read I am the person who killed Police Officer Faulkner?
A. I didn't say I didn't read it, I said I did not write it.
Q. Oh. But you knew what it said?
A. I knew what it said. But it had no significance to me then.
Q. Well, the word retained has significance to you today, though,
doesn't it?
A. It has a significance, but it still doesn't mean
anything because I wasn't retained by them, I didn't know, I didn't really
know who they are.
Q. You were lying to Mr. Graves, you were trying to psych him out?
A. I did not write that.
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Robert Greer - Cross
Q. You adopted the letter by signing it so you presented false
statements?
A. I was asked to sign it by Mr. Jackson. He sent out
several letters of that nature of people that he was familiar with.
Q. So Mr. Jackson basically was the head of the Abu-Jamal Defense
Committee then?
MR. WEINGLASS: Objection.
THE WITNESS: As far as I knew, yes, he was.
BY MR. GRANT:
Q. As far as you knew yes he was?
A. Anybody was the head of any committee, because he was the one that
retained me.
Q. Well, Mr. Jackson testified that he was a member of no
committee and received no funds from any such committee?
A. Then it must be true. I am not saying he was, I am saying he was the
one that retained me.
Q. Well, how much money did you get from Mr. Jackson and
how much money did you get from the committee and how much money did you
get from the Court?
A. I got absolutely nothing from any committee, nothing
from any Court. And $500 from Mr. Jackson.
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Robert Greer - Cross
Q. And you have no records to prove any of that?
A. I have no records to prove anything other than the
fact that -- I have no records, period. I did not take the appointment so
I couldn't have gotten any money from them.
Q. Well, for the 22-and-a-half hours, sir, that you were
investigating this case -- well, let me go back for a second. Of all the
plainclothes investigators that you have met in your lifetime that worked
for the Police Department, and of all the undercover detectives that
you've known or seen in action, how many of them do you think would be so
indiscreet as to be caught out in the street in a little red car?
A. How many would be?
Q. Yeah. How many undercover cops have you seen driving around in a red
car?
A. I have no idea, I really couldn't comment on that.
Q. You have no idea because you've never seen or heard of it, have
you?
A. I saw two people sitting in the car watching or
protecting Cynthia White, or appear to be protecting Cynthia White.
Q. Okay. Let me sit in this car right here
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Robert Greer - Cross
(indicating). Cynthia White is walking down the street. Show me how I
protect her?
A. Cynthia White was standing on the corner. She was the
only one standing on that corner. They were parked directly in front of
her. They stayed there. If she left, they were not there.
Q. Did you see this red car with the same white male and
white female every time you went to look for her?
A. If I saw her. I only saw her there a few times. If I saw her I saw
them.
Q. How many times is a few?
A. It's been a long time.
Q. How many times is a few?
A. More than three.
Q. How many is a few?
A. At least more than three times.
Q. Every time you saw her you saw the red car and the same man?
A. If the red car wasn't there --
Q. Excuse me, let me you ask you the question first.
A. I'm sorry.
Q. Every time you saw her you saw the same red car with
the same man and the same woman and they
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were in approximately the same position with relationship to her,
right?
A. I can't say that's true.
Q. I'm sure. And you being an investigator with keen
thoughts and swift mind of course wrote down the license plate and went
back to Mr. Jackson and said I think we ought to check these people out
and see if they are cops? Did they have a Municipal license plate on their
car?
A. No, they didn't.
Q. Well, did they have an FOP sticker on the side of the glass?
A. No, they didn't.
Q. Did you see a policeman's hat in the back window above the seat?
A. No, sir, I didn't.
Q. Did you ever see any of these individuals flash a badge?
A. No, sir, I didn't have to.
Q. Oh, you didn't have to?
A. Hmm.
Q. Did you see Cynthia White ever lean into the window
and engage in any conversations on any occasions with these people?
A. No, she didn't.
Page 204.
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Q. Well, Cynthia White was a prostitute, was she not?
A. I was told she was.
Q. Over what period of time did this phenomenon occur?
A. I think I asked -- that's hard to remember. I saw her
there at least three times. At least three times someone else was there
with her.
Q. I know that, sir, but over --
A. I can't tell you exactly, a couple weeks.
Q. For a couple of weeks. For a couple of weeks you saw
this recurring scenario. Describe the white woman?
A. Can't do that.
Q. Describe the white male?
A. I can't do that.
Q. Well, were they blond or brown-haired?
A. I don't remember. Young, that's all.
Q. Were they old or young?
A. They were young.
Q. Like younger than me? Younger than you? A teenager? What?
A. Probably younger than both of us.
Q. Are you insulting me?
A. No, it's really hard to tell how old they
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were. They were sitting in the car with their backs to
me. I didn't stay on the corner. I walked up to the corner, I observed
what was happening, and I left. I came back about three hours later, I
observed the same thing.
Q. Do you know that there are people on this planet and
in this City, men and woman who may like one another but they may want to
procure the services of a prostitute for their own personal
entertainment?
A. Not personally, sir, no.
Q. No, I am not asking you personally if you know that, but you know
that does occur, don't you?
A. I heard it does, yes, sir.
Q. Yes. Do you know whether or not these people were so inclined?
A. No, I don't.
Q. As opposed to being undercover investigators, who you didn't even
see their bandages?
A. They could have been anything else but I still believe
that these two people I saw were police officers.
Q. Well, besides the fact that they sat there and they
didn't move, tell me what else defines an undercover cop?
A. The fact that they were there watching her
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Robert Greer - Cross
with no one else around started me to thinking of who
they were. When I left and I came back I saw these same two people still
sitting in that same car and she standing on the corner looking perplexed.
I was positive that they were there and they were there to protect
her.
Q. Okay. Now, this was over a two-week period, more or less?
A. Yes, about that.
Q. But Cynthia White, even though she was a prostitute,
was a human being and had to sleep somewhere, sometime; correct?
A. That is correct.
Q. And being an investigator you're keenly aware that
basically the best time to find somebody unsuspecting is when they sleep
early in the morning, late at night?
A. That is correct.
Q. So you found out where her house was, right?
A. I did.
Q. How did you do that?
A. I'm an investigator, I found her.
Q. You found her because you're an investigator?
A. That is correct.
Q. Since you are an investigator and you found
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Robert Greer - Cross
out where she lived -- and she was somewhat of a transient person; is
that true or false?
A. Say that again, sir.
Q. Was she transient? Does she have a fixed place of address, a fixed
abode?
A. I assumed she has a fixed address at that time because
when I went to the place where she was living, they say she did live
there, they invited me in.
Q. Did they?
A. Hmm.
Q. So you stayed and waited for Cynthia?
A. No, I didn't go in.
Q. You didn't go in?
A. It didn't look like a place I wanted to be found in.
Q. Yeah, I know that, but that's why they pay you money, to go into
these places, isn't it?
A. No, sir, they pay me money to investigate, sir.
Q. Okay? so you knew where she lived?
A. I knew that.
Q. And you wouldn't enter her house because it wasn't as
important for you to get an interview for Mr. Jamal's defense as it was
for you to not be in a
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Robert Greer - Cross
place that you thought undesirable?
A. No, what I did was I went and asked if she lived
there. After I ascertained that she lived there I sat outside the house
and watched and waited for her to come home.
Q. And how long did you wait?
A. I don't remember but it was long enough I thought she
should have been there. I didn't do that once, I did that several
times.
Q. Wait a minute now. You are using the mentality and the
mind of a citizen: Long enough so that you thought she should have been
there. Did you forget that she was a prostitute?
A. Yes -- no, I didn't forget she was a prostitute.
Q. What makes you think she keeps your hours, sir?
A. I didn't know what hours she kept, that wasn't my
concern. It was because I figured after a certain point she would leave
the area that she frequented. And no where else would she go to my
knowledge but home.
Q. So when she didn't come home, is that when you kept going back to
12th and Locust?
A. Yeah.
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Q. And when you went there, of course you knew that these
were two plainclothes cops because you walked up on the scene in an
attempt to interview her with your pad and pencil, and you walked by this
vehicle and looked inside and saw the male and female; correct?
A. I did not walk by. I observed them from a distance.
Q. Well, you observed them from a distance so that they wouldn't see
you, right?
A. Correct.
Q. So you were at all times behind their line of vision,
in other words, you were behind the little red vehicle, right?
A. I can't hear you, sir. I can't hear you.
Q. You were behind the red car?
A. That is correct.
Q. Well, behind the red car. Were they parked on Locust? Were they
parked on 13th?
A. They were parked on 12th Street.
Q. On 12th Street, which is a southbound street?
A. That is correct.
Q. And they were parked at the intersection of 12th and Locust?
A. They were parked just behind the intersection
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on the southwest corner.
Q. On the southwest corner. So you were parked where?
A. I was parked on 13th Street.
Q. What?
A. I didn't drive my car there, I walked up to the scene.
Q. Oh, okay, so you did walk up?
A. Yes.
Q. But you never walked by?
A. I didn't walk by.
Q. How close did you get?
A. From?
Q. From behind?
A. I was on the other side of the street on the northwest corner.
Q. On the northwest corner. Well, if you were on the
northwest corner you were kind of on an angle like I am to the Sheriff
sitting right there in the front row?
A. Approximately. Possibly.
Q. Well, I am looking right in his face. I am not behind
him and I get a good look at his face. Did you?
A. The car was facing the other way.
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Q. Oh, this car was turned around. You are making this difficult.
A. The car was facing south.
Q. The car was going that way (indicating)?
A. Facing south.
Q. So you saw the back of his head?
A. I saw the side, the side of the face and the back of the head
too.
Q. And you saw the back of the female's head?
A. And the side of her face.
Q. And the side of her face. And that is the best vantage point you
got?
A. That's the only vantage point I wanted at that time. I
didn't want anyone to know that I went there to talk to her. I figured if
they knew that I wanted to talk to her, that was fine, but I wasn't going
to tell them.
Q. I know that, sir.
A. Hmm.
Q. But you were being paid $25 or $30 an hour just for
that purpose, yet you had her in your vision on a number of occasions, you
were at her house sitting waiting for her, you were outside her property
waiting for her, and you never thought it was worth the money you were
earning to just wait
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long enough or to walk up to her in front of somebody
else, to at least contact her, give her your card and say would you please
give me a call when you get in?
A. Not at that time, no.
Q. Well, at what time did you?
A. The opportunity really didn't come up. Things aren't easy as you
suggested.
Q. I am not saying it's easy, sir, but I am saying that
you were charging about 30 bucks an hour then, weren't you?
A. 25.
Q. 25. And you worked 22-and-a-half hours from January to May, more or
less?
A. More or less, yes.
Q. And did you know that that comes out to about one
hours worth of work a week for that time period, so you spent four hours a
month during this period to save this man's life?
A. That was the hours that I billed him for. I put in a lot more hours
than I billed him for.
Q. Well, did you have photographs of Dessie Hightower, Robert
Pigford?
A. No, sir.
Q. Did you have the photograph of Debbie Kordansky?
Page 213.
Robert Greer - Cross
A. I don't know anything about Debbie Kordansky. I don't remember
her.
Q. And Mr. Jackson never sent you on a mission to look for her, did
he?
A. Not that I remember.
Q. And you talked to Mr. Jamal in this case too, didn't you, when you
were first retained?
A. That is correct.
Q. And Mr. Jamal never told you to look for her, did he?
A. No.
Q. There was a lawyer named John Black who was assisting
Mr. Jackson. Did you ever meet him?
A. Who?
Q. John Black?
A. No, I never met him.
Q. Never met him?
A. Never met him.
Q. Did you ever talk to him by phone?
A. I don't believe so.
Q. How often would you report to Mr. Jamal and/or to Mr. Jackson the
fruits of your labor?
A. I talked to Mr. Jamal once when I advised him in the
hospital. I talked to Mr. Jackson periodically. Almost everyday.
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Robert Greer - Cross
Q. Almost everyday.
A. Yes.
Q. And is it true that you spent most of your time on this case looking
for Cynthia White?
A. That's very possible.
Q. No, no, no. Is it true that you spent most of your
time looking for Cynthia White to interview her?
A. I spent a lot of time looking for Cynthia White, but I
don't think it was the most of my time. I spent the most of my time
looking for the other individual.
Q. What other individual?
A. The street priest or the large gentleman who was seen running
away.
Q. Well, when you said in your interview, in your
affidavit, having been duly sworn upon oath, that in addition I recall
doing the following investigative work. A, make measurements. B, I spent
most of my time attempting to interview Cynthia White the prostitute. Now,
if you didn't spend most of your time doing that as you have testified
under oath, then what you wrote under oath is false; correct?
A. That was the longest time that I billed him for.
Q. I'm sorry?
Page 215.
Robert Greer - Cross
A. That's what I billed him for.
Q. Oh, you spent --
A. I spent a lot of time out there for hours that I did
not bill anyone for. I did that on my own.
Q. I know. Of the time that you were paid, most of that
time was spent -- well, no, most of that time was not spent attempting to
interview Cynthia White, right?
A. You lost me. What did you say?
Q. Yeah, you just testified --
A. What did you say?
Q. You just testified that you did not spend most of your time trying
to interview her?
A. No, not most of my time. Most of my time I spent trying to find that
preacher, yes.
Q. By the way, you mentioned a description of the person you were
trying to find?
A. That is correct.
Q. And I think I was writing this down properly. You said
that you were looking for a person who was the suspect who apparently or
allegedly was running away from the crime scene at the time of the
shooting, right?
A. Correct.
Q. By the way, were you at the crime scene during
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Robert Greer - Cross
the shooting?
A. Say that again.
Q. Were you there?
A. During the time of the shooting?
Q. Yes, sir.
A. No, I was not.
Q. Well, then you couldn't know that anybody was, quote
unquote, running away unless somebody told you someone was running away;
correct?
A. That is correct.
Q. Who told you that someone ran away?
A. I believe it was, I believe it was Dessie Hightower.
And also read it in the first statement given by Cynthia White.
Q. And he said the person was running away or the person ran?
A. The person ran away from the scene.
Q. Well, the person you described, I guess you spent off
and on 14 years diligently looking for, you described as about
six-foot-two?
A. Correct.
Q. Over 200 pounds?
A. That is correct.
Q. Dreadlock hair?
A. Yeah.
Page 217.
Robert Greer - Cross
Q. Army jacket?
A. Army clothing, yes.
Q. Army clothing. That sounds like Mr. Jamal on the night in
question?
A. I don't believe Mr. Jamal was quite that large.
Q. Well, look at him now.
A. That was then we are talking. This is now I am talking about,
now.
Q. How tall do you think Mr. Jamal was then? Since you
personally saw him at the hospital and you personally interviewed him,
give us a description of what you thought he was, sir, 13 years ago?
A. At that time about five-nine or ten, 150 pounds.
Q. Really?
A. Yeah.
Q. What if I showed you a picture and he was measured in
that picture and weighed and he was six-foot-one and 180 pounds, would
that refresh your recollection?
A. Actually, no. But when I saw him he was in a hospital bed. I didn't
see him standing up.
Q. So you were giving the height of a person who is laying down?
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Robert Greer - Cross
A. Approximately, yeah, that's what you asked for.
Q. Well, I asked you how tall he was, I didn't ask you
how tall you assumed he was had he been standing up.
A. Well, I saw him lying down, I didn't see him standing up.
Q. So you can't say for certain that he was five-foot-nine, which is
about my height?
A. Yeah.
Q. And 150 pounds, which is like 20 pounds less than me?
A. Hmm.
Q. You can't say that, can you?
A. What, now or then?
Q. Either one.
A. Then he appeared to be that.
Q. In a hospital bed?
A. In the hospital bed.
Q. And how long were you with him in a hospital room?
A. 15, 20 minutes.
Q. Well, didn't it occur to you, sir, when you were there
and the description you had was -- except for your description of the
person's height, and
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Robert Greer - Cross
clothes which we can change everyday -- as an
investigator and a keen, sharp person who is investigating crime, didn't
it occur to you that hey, the person that guy is describing looks like
him? Didn't you have a question in your mind how tall are you and how much
do you weigh, did that ever occur to you?
A. No, it didn't. It didn't occur to me because the
person ran away, Mr. Jamal was sitting on the curb.
Q. No, someone told you the person ran away, right?
A. That is correct.
Q. Okay. Now, by the way, you didn't spend a lot of time
looking for Dessie Hightower, did you?
A. No, I didn't.
Q. You found him right away?
A. I had his address.
Q. And you didn't have a hard time looking for Robert Pigford, did
you?
A. No, I didn't.
Q. What other witnesses did Mr. Jackson want you to interview, do you
know?
A. Cynthia White.
Q. And you found her relatively soon, didn't you?
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Robert Greer - Cross
A. I found her, yes.
Q. As a matter of fact, you found the address for Cynthia
White and you found the location where you could find Dessie Hightower and
Robert Pigford all within two weeks after you were given the assignment,
because you are that good, isn't that so?
A. No, I didn't have their statements then. After I got the
statements.
Q. How soon after you got the statements?
A. I don't know, I am not aware exactly when discovery
came. We didn't get the discovery at first.
Q. You went up to Mr. Hightower and you said to him I
want to interview you, I don't have your statement with me but I have read
it, how many times were you questioned by the police, and he said three
times. You asked him the question -- and I am going to ask you after I
read this question and answer why you asked him that -- did you ever tell
the D.A. that you did not want to talk to me or anyone else connected with
this case. You asked him that, right?
A. Yes, I did.
Q. Why did you ask him that?
A. Because that was a comment that was made when Mister,
I think Mr. Jackson had attempted to talk, to
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Robert Greer - Cross
talk to him.
Q. Were you there?
A. No.
Q. Well, you keep saying these things that somebody else
told you. Now, who made the comment? Mr. Jackson made it to you?
A. Yes, he did.
Q. Oh. And you found out that that was a lie, right?
A. No, it wasn't a lie.
Q. Well, what was the answer? I told them I didn't want to give a
statement to...?
A. Jackson.
Q. Mr. Jackson, his attorney. I didn't say I wouldn't
talk to an investigator or anything like that. Now, you are an
investigator, right?
A. That is correct.
Q. So you didn't have any trouble finding him because the
D.A. was hiding him from you, did you?
A. No.
Q. Nor Mr. Pigford?
A. No.
Q. Nor Miss White?
A. Ahh, I did not have an address on Miss White with her statements.
No.
Page 222.
Robert Greer - Cross
Q. I didn't ask you that.
A. I had no trouble finding her because I knew how to find her.
Q. Did the D.A.'s Office interfere with your attempts to locate
her?
A. They did not interfere but they did not supply her address
either.
Q. Well, that's why you get paid money, isn't it?
A. Yes, sir, that is.
Q. Okay. Thank you. Now, you interviewed Dessie Hightower, you tape
recorded that, right?
A. Yes, I believe I did.
Q. And you asked him a question, but you didn't see the
actual shooting. And he said no, isn't that so?
A. That is correct.
Q. Now, he says I couldn't see anything, didn't hear
anymore shots going off because he was behind the wall hiding because he
didn't want to get shot, right?
A. Right.
Q. And when he stuck his head out he said I couldn't see
anything so I walked towards Whispers. Now, Whispers is right on the
corner of 13th and Locust, right, or it was at that time?
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Robert Greer - Cross
A. Yes.
Q. And he continues. And by then it was flooded with
other police officers. He said that, didn't he?
A. I believe he did.
Q. Well, would you like to look at it yourself or you take my word for
it?
A. I'll take your word for it for now, yes, sir.
Q. Now, he sees a place flooded with cops. Now, you know
that the shots went off and the place wasn't flooded with cops right away,
so his time frame is obviously taking a little longer than the reality of
the situation; would you agree with that?
A. Correct.
Q. Correct. So when he sees this place flooded with cops,
the cops at that point are all over Mr. Jamal, and they are taking Police
Officer Faulkner bodily in and out of vehicles trying to save his life,
and they have Mr. William Cook up against the wall -- from your
investigation you figured that out, didn't you?
A. I don't believe that's what he said.
Q. No, that's not what he said, but I am saying, from
your investigation you figured that out, that by the time the place was
swarming with cops, the
Page 224.
Robert Greer - Cross
shooting's over, the incident's over, you realize that, don't you?
A. The incident is over, yes. But your description of the scene I
believe was incorrect.
Q. Okay.
A. Because he also said other things.
Q. Okay. Well, let's just assume that my description of
the scene is irrelevant. But by the time he did finally walk towards
Whispers -- and he still is about half a block from the crime scene,
right?
A. Not quite, but he's away from the scene, yes, sir.
Q. Well, wait a minute. The crime scene is almost midpoint directly
between 12th and 13th?
A. Almost, yes.
Q. And he is not even at 13th yet?
A. Okay.
Q. So he is more than half-a-block away?
A. All right.
Q. All right. I walked towards Whispers and by then it
was flooded with other police officers and I saw somebody running past the
hotel. I don't know if they were running because of gunshots or what. Now,
he didn't say I saw somebody run
Page 225.
Robert Greer - Cross
away from the crime scene, did he?
A. Not in that description, no.
Q. Well, which one, in which description he gave you did he say so?
A. Actually, maybe I put two statements together.
Q. No, no, no. You recorded this one?
A. You are right, he did not say that.
Q. Yes, he did not say that. As a matter of fact, as far
as you knew, that person could have been running into the hotel to try to
call the ambulance and get more help there; isn't that so?
A. Anything is possible.
Q. He could have been running to a phone booth anywhere
around there because he is a friend who is trying to help this officer who
is dying on the street; isn't that so?
A. That's correct.
Q. And you chose to accept the version that this person
was the shooter and he was running away from the scene of his misdeeds;
correct?
A. I chose the person to be a witness and he possibly saw what
happened, that's what I --
Q. Oh, so you weren't looking for this six-foot-two, over
200 pound, dreadlock-wearing, Army-attire wearing male because he was the
doer?
Page 226.
Robert Greer - Cross
A. He could have been the shooter or he could have just been a
witness.
Q. You were looking for him as the missing witness?
A. That's right.
Q. I see. Did you ever talk to Cynthia White one time, just utter one
word to her?
A. No.
Q. How many opportunities when she was in your vision did you have?
A. I believe about three times.
Q. But you knew where she stayed everyday: Basically she was a
prostitute and --
A. I knew where she supposedly lived. But I never caught her there.
Q. Yes, sir, my question is: You knew where her place of business was;
correct?
A. Her place of business?
Q. You know what I mean.
A. I knew she frequented that particular corner, but she frequented
other places too.
Q. Well, did you go to visit those other places?
A. Everywhere, yes.
Q. But the only place you saw her was at 12th and Locust?
Page 227.
Robert Greer - Cross
A. Yeah.
Q. Where this murder happened?
A. That's right.
Q. So you knew that's where you could find her?
A. Possibly. I had a better chance of finding her there.
Q. Have you ever seen those two undercover white persons
seen from the side and back of their head in a little red car ever
again?
A. I -- no I no, no, I haven't seen them since then.
Q. And you haven't looked for them for 14 years, have you?
A. She left town, she left town after that week.
Q. Well, when did she leave town, Mr. Greer?
A. I have no idea but I know she left there.
Q. How do you know that if you have no idea?
A. Because she was arrested in Boston for prostitution, sir.
Q. And she was arrested in Boston in May of '82, isn't that so?
A. Possibly. I am not sure where she was when she was arrested, to be
honest with you.
Q. So you from January to May looked for her to interview her?
Page 228.
Robert Greer - Cross
A. That's right, I didn't see her any longer until I
officially was out of it. I stopped looking for her.
Q. Wasn't it a fact that you only looked for her for the
two weeks that you saw these alleged plainclothes detectives and then you
didn't look for her after that anymore because you started looking for
everybody else?
A. I never stopped, really, looking for her, to be honest with you.
Q. Did you have any problem finding Veronica Jones?
A. I didn't look for Veronica Jones.
Q. Why not? Weren't you asked by Mr. Jackson?
A. No.
Q. You weren't?
A. No, I wasn't.
Q. Now I want you to think back, it has been a long time.
I want you to think carefully. Did Mr. Jackson ever ask you to look for
Veronica Jones?
A. I don't remember him asking me to look for Veronica Jones, no.
Q. Did he ever ask you to locate any Philadelphia police officers?
A. Not to my knowledge. Not that I can remember,
Page 229.
Robert Greer - Cross
I'11 put it that way.
Q. Who were you paid to look for besides Cynthia White,
Dessie Hightower, and Robert Pigford?
A. Just the preacher that I told you about.
Q. Just the what?
A. I was paid to look for everyone on that particular,
everybody who gave a statement. I didn't have an opportunity to look for
all of those people.
Q. You didn't do very much work on this case, an hour a
week for five months, did you, for 500 bucks?
A. That's not true. These kind of jobs you never get off
of them, you work on them constantly.
Q. Well, did you think based on the amount of work that
you were -- you only took two statements, sir, you took two lousy
statements in five months, and $562 later, according to Mr. Jackson, not
counting the defense committee retainer, whatever that means, and you got
two lousy statements?
A. That's all I gave him, sir, that's all I took.
Q. And you didn't take one from Cynthia White?
A. No, I didn't.
Q. And you said you were looking for all these people on
the list and you talked to two people?
A. I was looking primarily for the people that he and I
discussed. Now, he never discussed Ver --
Page 230.
Robert Greer - Cross
well, whatever the name was.
Q. Jones?
A. Veronica Jones. He never discussed my talking to her.
He probably would have gotten around to her but we hadn't at that
point.
Q. Didn't he tell you words to this effect: There was a
lot of people on this list that the police have interviewed, Mr. Greer --
did he call you Bob or did he call you Mr. Greer?
A. He probably called me Mr. Greer.
Q. Mr. Greer. But there's only three people that I'm
really interested in, two people were together, two males, and I think if
I can get them in and get statements from them I can create the impression
that the real shooter ran away from the scene, did you have a conversation
like that?
A. No.
Q. Did he tell you why he was so keenly interested in Mr.
Hightower and Mr. Pigford? Since they were not eyewitnesses, you know
that, right?
A. I don't know who they were, they were witnesses. They
were people that the police took statements from.
Q. Oh. You know they weren't eyewitnesses because they
told you that they weren't eyewitnesses
Page 231.
Robert Greer - Cross
to the shooting?
A. Oh, no, not eyewitnesses, no.
Q. Well, did he ever tell you why he was so desperate to get these two
men?
A. I don't believe I remember him saying so.
Q. I'm sorry?
A. I don't remember.
Q. You may have had that conversation with him?
A. Not that conversation, no. He never said anything
about a diversion and all trying to give an illusion of something else
happening. That's not him.
Q. I know. Is it Mr. Jamal?
A. I talked to Mr. Jamal one time.
Q. So you don't know whether it is Mr. Jamal or not?
A. My impression of Mr. Jamal was that he was probably
the most gentle person I'd ever met. He didn't have any devious thoughts
that I knew of.
Q. No. Was he controlling any of your efforts?
A. Mr. Jackson was the only person that I talked to about
what I did out there on the street.
Q. Okay. Mr. Pigford told you that the police didn't try
to prevent him from talking to you or didn't tell him anything along those
lines either?
Page 232.
Robert Greer - Cross
A. That is correct.
Q. As a matter of fact, he said the police were
gentlemanly to him and cooperative with him?
A. That is correct.
Q. And so did Mr. Hightower?
A. Correct.
Q. Did they ever tell you that the police were trying to prevent you
from getting to them?
A. No.
Q. Did you interview anybody in this case in all the 22
or 25 hours you put in, did you ever meet with one person or talk to any
person, whether you wrote it down or not, who told you the police told me
not to speak to you, or they are trying to hide me from you?
A. No.
Q. Are you certain?
A. Positive.
Q. Well, you are the investigator that tried to reach these people for
Mr. Jackson; correct?
A. I didn't reach the people that you are referring to
because I didn't have addresses for them and I hadn't found them yet. But
I would have found them eventually.
Q. And since you were the person that was Mr.
Page 233.
Robert Greer - Cross
Jackson's eyes and ears, and who was first in contact with any
witnesses that he would come in contact with -- because you would bring
them to him, wouldn't you?
A. Say that again.
Q. You would bring him the witnesses once you found out
who they were, you would like arrange for them to talk to him, right?
A. If need be, yes.
Q. If need be. Did the need arise?
A. Not with the two that I gave the statements, that I gave him the
statements for.
Q. Because you had 10-page, tape-recorded statements from
Dessie Hightower and Robert Pigford, right?
A. Probably, yeah.
Q. Now, can you explain, since you would have personal
knowledge, as to why Mr. Jackson would come here under oath and say that
the Commonwealth was trying to keep him and his investigative team from
talking to these witnesses?
A. If that's his belief, sir, I can't explain why he would believe
that.
Q. But you don't know of any basis for it, do you?
Page 234.
Robert Greer - Cross
A. For him feeling that way?
Q. For him saying these words under oath?
A. Not personally, no.
Q. Since you knew people who pointed out Cynthia White to
you, and you didn't even have a description of her, but you did frequently
see this six-foot-two, over 200 pound, dreadlock, Army-jacket person who
allegedly ran past the hotel but not necessarily leave the scene, you knew
what he looked like personally, didn't you, you had seen him?
A. The person that I was looking for was someone I had seen many times
before.
Q. Ahh. So you had seen that person yourself?
A. That is correct.
Q. And you haven't seen that person one time in the last 13 years;
correct?
A. That is correct.
Q. And you want the fact-finder here to believe that person ever
existed?
A. The one person never existed.
Q. Never existed?
A. Oh, he existed. He was a preacher. He preached on Walnut Street,
Chestnut Street.
Q. He was one of those street corner preachers?
A. Oh, he was, he was always down there, day and
Page 235.
Robert Greer - Cross
night.
Q. Who else do you know who knew him?
A. Only Ben Johnson, he was the only one that I had.
Q. And Ben Johnson was an accomplished and legendary lawyer in this
town at that time?
A. Yes, he was. Yes, he was.
Q. And did you use his investigator to try to find out who this guy
was?
A. I was his investigator.
Q. So you were three years experienced and you were his
investigator and Mr. Jackson's investigator at the same time?
A. On different cases, yes.
Q. Well, Mr. Ben Johnson had hundreds of clients; would that be fair to
say?
A. Well, he wouldn't hire an investigator on all of those cases.
Q. No, I am not asking you --
A. I don't know how many clients he had.
Q. He had lots and lots and lots, more than Mr. Jackson, didn't he?
A. Oh, yes.
Q. And were you working for Mr. Johnson and getting paid
while you were working for Mr. Jamal?
Page 236.
Robert Greer - Cross
A. I doubt it, no.
Q. Why do you doubt it?
A. Because I wasn't doing anything with Ben at that
particular time. I worked for a lot of different attorneys.
Q. Well, how many were you working for while you were
employed by Mr. Jamal? Since you could only bill what you claim was
22-and-a-half hours and it was under really what you did, but
22-and-a-half hours over five months is not much work, who else were you
working for?
A. I probably worked for Tom McGill. Probably worked for Ben Johnson.
At least those, those two.
Q. And Anthony Jackson?
A. Of course Anthony Jackson.
Q. And all of those are very accomplished lawyers you worked for with a
client base?
A. Yes, but they are all different cases. We couldn't work on those all
at the same time.
Q. Did Debbie Kordansky ever tell you she didn't, want to talk to
you?
A. I don't even know who Debbie Kordansky is.
Q. Did Mr. Jackson pay you out of his pocket cash, did he
pay you in a cashier's check, did he pay you by way of a client's fund
check, or did he pay
Page 237.
Robert Greer - Cross
you by money order?
A. He probably paid me by personal check but I am not certain of
that.
Q. You filed your taxes on this case, right?
A. Definitely.
Q. So you would have some kind of record, wouldn't you?
A. Not after 14 years, I still wouldn't have that.
Q. Yeah, I guess that's true. Mr. Greer.
A. Yes, sir.
Q. Did you ever interact with a group called the Mumia Abu-Jamal
Defense Committee?
A. No, sir. I don't even know who they were. Honestly, I have never
known them.
Q. Did you ever have any contact with people who claimed
to be runners, legal runners, for Mr. Jamal, who would come up and seek
you out and ask you for information or give you information?
A. No.
Q. Did you ever come into contact with William Peraneau?
A. I don't believe so, the name is not familiar to me.
Q. He is the photographer who worked for Mr.
Page 238.
Robert Greer - Cross
Jackson on this case?
A. If he did, I had no contact with him.
Q. So you didn't point out to him the crime scene, this
is where the weapon was found that belonged to Mr. Jamal, this is where
the body was found of Officer Faulkner, this is where the spent shell,
spent missile was found embedded in the brick wall, you didn't do any of
that with the photographer, right?
A. Not me.
MR. GRANT: May I have the Court's indulgence for just a moment.
BY MR. GRANT:
Q. Did you tell Mr. Jackson that there was any work that
you felt that should be done before you ceased your duties on his
behalf?
A. Well, there was a lot of work that should have been done, yes.
Q. Like what?
A. Finishing interviewing all of the witnesses.
Q. All of which ones? The ones he wanted you to interview?
A. The ones that police gave statements to -- that gave the police
statements.
Q. Well, let me say this. The police interviewed
Page 239.
Robert Greer - Cross
50 people?
A. Hmm-hmm.
Q. Some of them more than once, so there may have been
some duplication, maybe 65 police interviews. 60, 70 percent of those are
police persons. Did you want to interview those police persons also?
A. If need be. But then most of the time we, we don't bother with
them.
Q. Right. You are just looking for the civilians?
A. Civilians, yes.
Q. So the people that you are talking about that were
left to be interviewed that you wanted to are... about 13 people, 15
people, whatever the number. That's the number that you are actually
talking about, the civilians who may have had information about the
shooting; correct?
A. Correct.
Q. But you never attempted to find any of them, did you,
besides Mr. Hightower, Cynthia White and Robert Pigford, not in five
months, not in 22-and-a-half hours, not any hours, you never attempted to
find any of those other people, did you?
A. I made no attempt to find any of the other witnesses, correct.
Page 240.
Robert Greer - Cross
Q. So the fact that you didn't look for them is the
reason that you didn't find them; would that be fair to say?
A. I wasn't ready to look for them then, that's correct.
Q. How did you plan to get ready to look for them?
A. When I was told to find them I would have found them.
But I was told to go find these people, I never was told to find them.
Q. So you were waiting for the order to go out for these people?
A. When it became necessary to look for them, yes, sir.
Q. Did Mr. Jackson tell you well, I am ordering you to go
look for the people that are most important for me first and then we will
get to the other ones later?
A. Correct. He did tell me to look for a cab driver. I
was getting ready to start looking for him.
Q. There was a couple cab drivers that saw this killing?
A. I didn't remember which one it was.
Q. But you didn't have to look for the cab driver
Page 241.
Robert Greer - Cross
because you could let your fingers do the walking in the Yellow Pages,
couldn't you?
A. I don't know what you are referring to.
Q. Telephone?
A. Yeah, telephone's working. But I don't remember
exactly who the guy was. Or what the cab company he worked for. But I
could have found him, yes.
Q. Yes, you could have easily found him, because you were good at
this?
A. Hmm.
Q. The best lawyers in town hired you, didn't they?
A. That's correct.
Q. So they were confident of your skills and so were you
and if you really wanted to find Mr. Chobert, one cab driver, Mr.
Magilton, second cab driver, you could have found them, couldn't you?
A. When I was ready to find them I think I could have found them.
Q. But you weren't told to go find them?
A. That is correct.
Q. You were only told to find the people --
A. I was told to find the one cab driver, I don't even remember which
one it was.
Page 242.
Robert Greer - Cross
Q. So you were asked to find the primary Commonwealth
witness who was a prostitute who was on that corner who saw the whole
thing, and two people who didn't see anything except the aftermath but who
said someone was running past the hotel; correct?
A. Correct.