Verfahren gegen Mumia Abu-Jamal

Q. Based on the findings which you've just recited, and your diagram which is D-22, were you able to reach any conclusions to a reasonable degree of medical certainty respecting the relative positions of the shooter and Mr. Jamal at the time that the shooting occurred?

A. Umm, the gunshot has to be angled downwards towards Mr. Jamal. This would be consistent with a shooter above Mr. Jamal, possibly with Mr. Jamal slightly bent and a standing shooter firing horizontally.

MS. FISK: I'm sorry, I did not hear the second part of that response.

(The Court reporter read back the last answer.)

BY MR. WEINGLASS:

Q. Dr. Hayes, do you have an expert opinion based on your review of the materials to a reasonable

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degree of medical certainty as to whether or not a standing Mr. Jamal could have been shot by a falling shooter?

A. If Mr. Jamal is standing, he sustained a gunshot wound which goes downwards, backwards and from right to left, a falling shooter would be firing upwards at a standing man and therefore the wound pathway would be upwards through Mr. Jamal's body. That would be inconsistent with the scenario you just proposed.

Q. So it would be inconsistent with your findings?

A. That is correct.

Q. In short, would it be fair to say that your findings indicate that Mr. Jamal could not have been shot by a falling shooter?

A. While --

Q. Pardon?

A. While he was in a standing position, that is correct.

Q. Now, is it possible, Dr. Hayes, for a bullet to ricochet or tumble as it passes through a body?

A. Those are two separate things. Ricochet is what happens when a bullet strikes a hard substance or an object inside the body and is deflected. So

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John Hayes, M.D. - Direct

that sometimes does happen and typically the situation in which you see a ricochet is when a bullet strikes a hard bone and is deflected and changes it's angle.

As far as whether bullets tumble inside a body, this is more debatable. Bullets, while the bullet itself may tumble, that won't change the angulation of the wound tract. So the bullet itself may rotate as it passes through a wound, as it causes a wound cavity, but that won't change the overall direction of the bullet.

Q. And was there any evidence in your review of the written materials with respect to the wound suffered by Mr. Jamal that would indicate that the bullet that struck him ricocheted?

A. No, there was not.

I'm sorry, could you repeat the question, please? I may have misunderstood it.

THE COURT: Repeat the question, he said, he may have misunderstood you. Will you repeat the question for him.

MR. WEINGLASS: Thank you. I understood that the witness was gesturing to have the same. But to save the Court reporter the effort I will ask the

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question again.

BY MR. WEINGLASS:

Q. Was there any evidence in the materials that were submitted to you for examination that indicated that as the bullet entered Mr. Jamal's body and passed through it it had ricocheted?

A. No. Dr. Colletta on the witness stand testifying speculated that there might have been some sort of ricochet. There is nothing in the evidence available to indicate that there was any form of ricochet.

MS. FISK: Objection, Your Honor: Except that Dr. Colletta testified to it and that is certainly evidence available.

THE COURT: I will let you bring that up on cross.

BY MR. WEINGLASS:

Q. In your review of the written materials, putting aside Dr. Colletta's testimony, did you find in the hospital records, the medical records of Mr. Jamal, any evidence that would indicate to you as an expert forensic pathologist that the bullet had ricocheted after it entered Mr. Jamal's body?

A. No, the bullet goes into the chest and passes through soft tissues until it strikes the rib at the

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back of the body. There is no point of ricochet inside there, inside that wound pathway.

Q. As a matter of fact, as it strikes that rib at the back of the body, the twelfth rib, does it fracture that rib?

A. It fractures that rib, yes.

Q. Is that the kind of evidence you would expect to see if the bullet had struck a rib in the upper portion of the body before it passed through the body?

A. If the bullet had struck a rib in the upper portion of the body you would expect that rib to be fractured too. And possibly the bullet would have been slowed and would have not fractured the rib at the back.

Q. So since you found no evidence of fracture or any markings on any of the upper body ribs, did that lead you to deduce in part that the bullet passed in a straight line and did not ricochet?

A. That's correct.

Q. And you indicated in your reading of Dr. Colletta's testimony -- strike that. Did Dr. Colletta in your reading of his testimony indicate that he himself was merely speculating?

A. Yes.

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John Hayes, M.D. - Direct

MS. FISK: Objection, Your Honor.

THE COURT: Yes, he is your witness, why don't you let him testify. Stop leading your own witness, will you please. Rephrase your question.

BY MR. WEINGLASS:

Q. Was there anything about your reading of Dr. Colletta's testimony that indicated to you as an expert forensic pathologist that he was testifying without a basis in the medical record?

MS. FISK: Objection, Your Honor. He is asking this defense witness to speculate as to the basis of another defense witness' testimony. The record speaks for itself as to the substance of Dr. Colletta's testimony.

MR. WEINGLASS: No, I think Counsel misunderstands it. Perhaps it was lack of artfulness on my part.

THE COURT: Well, rephrase your question so she'll understand it, will you.

BY MR. WEINGLASS:

Q. Did you find anything in the hospital records of Jefferson or in any of the medical records that supports any opinion by Dr. Colletta that there was a ricochet here?

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A. No, I do not.

Q. Now turning your attention to the Medical Examiner's report authored by Dr. Hoyer with respect to the autopsy of Officer Faulkner. Did you have occasion to read portions of Dr. Hoyer's testimony that was offered in the trial?

A. Yes, I did.

Q. Was Dr. Hoyer Board certified at the time he did the autopsy?

MS. FISK: Objection, Your Honor.

MR. WEINGLASS: It's in the record.

MS. FISK: Precisely the reason for my objection.

MR. WEINGLASS: No, it is a lead-in question, Your Honor. I asked him did he see that there was a wound here and that leads into the whole discussion of his expert opinion. I am now asking him if he read the doctor's report, the doctor's testimony, who performed the autopsy, and in his testimony did he indicate if he was Board qualified.

MS. FISK: I didn't object to those first questions because they were proper. Whether or not Dr. Hoyer stated to the Court he was Board qualified is not relevant to the

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affidavit submitted with regard to this doctor.

MR. WEINGLASS: I submit it is because in his affidavit Dr. Hayes offers an opinion as to the efficacy of Dr. Hoyer's work. And part of that opinion is based on the fact that Dr. Hoyer was not a Board-certified pathologist at the time he did the autopsy. It's part of the facts he considered. Clearly it's admissible.

MS. FISK: I would note first, Your Honor, that according to Dr. Hayes' report, Dr. Hoyer's testimony at trial was not considered by Dr. Hayes in rendering his opinion. He lists only the pathology report from the Office of the Medical Examiner as a basis for any opinion he gave with regard to the cause of death of Officer Faulkner.

MR. WEINGLASS: But it is in the affidavit. And he is testifying from his present --

THE COURT: Well, read where it is in the affidavit.

MR. WEINGLASS: Although I am not familiar with the full trial record, it would appear that since I disagree with the Medical Examiner's findings with respect to cause of

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death, and Dr. Colletta's postulation of a ricochet. So in his affidavit he indicates that he disagrees.

THE COURT: Well, that's all right, he could disagree. But the question you have asked she is objecting to.

MR. WEINGLASS: No.

THE COURT: And I sustained the objection.

MR. WEINGLASS: Your Honor, the --

THE COURT: He could disagree because he could make his own decision. I have sustained the objection. Now ask him whatever other questions you want.

MR. WEINGLASS: His disagreement is based in part on the fact that --

THE COURT: He doesn't say that in the affidavit, Counselor.

MR. WEINGLASS: It does.

THE COURT: I have made a ruling, Counselor. The objection is sustained. He could disagree with anybody that he wants to. That's his privilege.

MR. WEINGLASS: But he disagrees because he is not Board certified.

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THE COURT: You are not testifying here, he is. He didn't have that in his affidavit.

MR. WEINGLASS: It is in the trial record.

THE COURT: The objection is sustained. Now come on, let's proceed, will you.

BY MR. WEINGLASS:

Q. To your knowledge, based on your review of the record, how long had Dr. Hoyer been in the Medical Examiner's Office at the time he performed the autopsy?

A. Six months, I believe.

Q. Six months?

A. From, I believe he began in June of 1981 and performed the autopsy in December of 1981.

Q. In your opinion, was Dr. Hoyer qualified to render an autopsy in this particular case?

MS. FISK: Objection, Your Honor.

THE COURT: I will sustain that. He has his own opinion. Let him give us his opinion. He can't decide whether or not somebody else is qualified. The Court had accepted him as being qualified at the time, so.

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John Hayes, M.D. - Direct

MR. WEINGLASS: That doesn't preclude --

THE COURT: Counselor.

MR. WEINGLASS: -- Dr. Hayes having an opinion.

THE COURT: He could have his opinions, I am not disputing that. Ask his opinion. But not his opinion about another pathologist. He can disagree with him and the Court will make that factual decision. But let's go ahead. Let's find out what he thinks, what his opinions are as to the cause of death.

BY MR. WEINGLASS:

Q. In making whatever opinions you made concerning cause of death, did you take into account Dr. Hoyer's lack of qualifications and his lack of tenure in the office?

MS. FISK: Objection, Your Honor.

THE COURT: I will sustain that again. Now, come on, Counselor, you can't get in the back door what I am not letting you get in the front door. Now cut it out.

MR. WEINGLASS: I am only asking if he took it into account.

THE COURT: I don't care if he took it

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John Hayes, M.D. - Direct

into account or not. He is a pathologist, he could give his own opinions. Let him give us his opinions. I will listen to him.

MR. WEINGLASS: His opinions are based on facts.

THE COURT: His opinions are based on what he read.

MR. WEINGLASS: And what he read about Dr. Hoyer.

THE COURT: Well, he didn't give that in his affidavit. Now, come on. Just as it is not proper for one lawyer to criticize another lawyer, it is not proper for a pathologist to criticize another. He could give us his opinion as to the cause of death, that's fine. But let him do that.

BY MR. WEINGLASS:

Q. Now, did the Medical Examiner's report indicate the cause of death?

A. Yes, it did.

Q. And what was indicated?

A. Gunshot wounds of face and back.

Q. Now, based upon your reading of the Medical Examiner's report, and your reading of the hospital record, and your reading of Dr. Hoyer's testimony,

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were you able to reach an expert opinion to a reasonable degree of medical certainty as to the cause of death of Officer Faulkner?

A. Yes, I was.

Q. And what was that opinion?

A. Umm, that Officer Faulkner died as the result of a gunshot wound of the face.

Q. And what do you base that opinion upon?

A. The gunshot wound of the face is a, as Dr. Hoyer says, is an instantaneously lethal injury. The bullet strikes the brain and causes instant death.

Q. Now, in your expert opinion, Dr. Hayes, was the gunshot wound to the back a contributing cause of death?

A. No, it was not.

Q. And on what do you base that opinion?

A. The fact is that this gunshot wound of the back, the bullet just goes underneath the skin and causes no injuries other than soft-tissue injuries. There are no injuries of nerves or vital structures. As a result, it could not by itself cause death.

Q. Did that bullet exit the body?

A. Yes, it did.

Q. But did it exit the body after striking any major portions or vital organs of the body?

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A. Not according to Dr. Hoyer's report. Dr. Hoyer says there is no significant injury in association with that wound.

Q. So a bullet that passes through the body as Dr. Hoyer describes in his report is a bullet that could not be a contributing cause of death?

A. Well, this particular gunshot wound the bullet just passes underneath the skin and exits the body. So, no, it does not contribute to death, particularly in the presence of a gunshot wound which is instantly lethal.

Q. Now directing your attention for the moment to the neck of the deceased: Was there any mention of a wound to the neck of the deceased in the Medical Examiner's report?

A. Yes, there is.

Q. And what is reflected in the Medical Examiner's report with respect to the wound to the neck?

A. The Medical Examiner's report describes a bullet entry wound of the back of the neck and a bullet exit wound on the left side of the neck on the front (indicating).

Q. And having read the hospital reports, having examined the photographs, and having read the

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John Hayes, M.D. - Direct

testimony of Dr. Hoyer, in your opinion how many wounds appear on the neck of the deceased?

A. There are actually not one but two wounds on the front of the neck of the deceased (indicating).

Q. Is it therefore your opinion that the Medical Examiner's report missed a wound?

A. That's correct.

Q. Is that an unusual occurrence in your experience?

MS. FISK: Objection, Your Honor.

THE COURT: I will have to sustain that, whether it's unusual or not. He has said that he missed it, let it go at that.

BY MR. WEINGLASS:

Q. Without categorizing it as unusual or not, have you before in your experience come across a medical examiner's report that missed a wound to the deceased's body?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained.

BY MR. WEINGLASS:

Q. Now, looking at the available medical materials, could you determine whether or not the second wound to the neck, not described in the Medical Examiner's report, was an exit wound or an

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John Hayes, M.D. - Direct

entry wound?

A. The slide photographs of it aren't very clear. I can't say whether it is an entrance or an exit wound.

Q. So based on the information that's available in the Medical Examiner's report, and the other information available to you, can you tell if Officer Faulkner, how many times, how many times Officer Faulkner was shot?

MS. FISK: Objection, Your Honor. My objection, Your Honor, is based on the fact that Counsel is far exceeding the offer of proof which is included in Dr. Hayes' affidavit, which was limited to two points, one having to do with the wound to Mr. Jamal, and the second having to do with an allegation that Dr. Hoyer's report defining the gunshot wound to the back as a cause of death was inaccurate. There is no allegation that there was any error with regard to failing to cite additional wounds or whether there was an additional exit or entrance wound. For that reason I make my objection.

MR. WEINGLASS: Well, Your Honor, we have Dr. Hayes here. He has --

THE COURT: I know.

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John Hayes, M.D. - Direct

MR. WEINGLASS: He has now examined the photographs.

THE COURT: I know, but he gave an affidavit and we will stick with that.

MR. WEINGLASS: But the affidavit doesn't limit him.

THE COURT: Oh, yes, it does.

MR. WEINGLASS: Oh, Your Honor.

THE COURT: Counselor, look up the law. Give me a case.

MR. WEINGLASS: The case is elemental. You have an expert on the stand.

THE COURT: That's why I am sustaining the objection. It is so elemental that I'm sustaining the objection. If you could get a case on point, I will be glad to let you bring the doctor back and we could proceed into that area.

MR. WEINGLASS: As elemental as giving the defense time to prepare a hearing, Your Honor. With all due respect. So found by the Supreme Court in an extraordinary writ.

THE COURT: Oh, yes, sure. They gave you half of the apple and they gave me half of the apple.

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John Hayes, M.D. - Direct

MR. WEINGLASS: No, they reversed Your Honor when you said no stay.

THE COURT: No, they did not.

MR. WEINGLASS: They did.

THE COURT: They reversed you because you wanted August the 1st and they said no.

MR. WEINGLASS: You wanted the hearing to begin the next day.

THE COURT: Right, so they gave you half an apple and they gave me half of an apple.

MR. WEINGLASS: No, sir.

THE COURT: Now, Counselor, no more arguing with the Court.

MR. WEINGLASS: Let the record show --

THE COURT: Let the record show that if you do it is a thousand dollar fine. Now cut it out. I am not going to fool around with you anymore. We have a witness here, now let's get his testimony on record.

(Photographic slides were marked
Defense Exhibit D-23 for identification.)

MR. WEINGLASS: I am doing my best.

THE COURT: Okay, fine. Do your best. Counselor, you will do it according to the rules of law of Pennsylvania. I don't know

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what you do in New York. We are in Pennsylvania now.

MR. WEINGLASS: Let the record show another reference to the fact that I'm an out-of-state Councel.

THE COURT: Well, you are. You may not know the procedures here. But come on, start asking questions.

THE COURT OFFICER: D-23, Your Honor.

THE COURT: Oh, D-23.

MR. WEINGLASS: I make this offer of proof for the record, while Counsel is examining. If Dr. Hayes were permitted to testify, he would have indicated that there is no way of -- it is an offer of proof.

THE COURT: No, Counselor, please. You do that back in chambers if you want to. You have given us something, D something. D-23. Whatever it is it is.

MR. WEINGLASS: There is no jury here, Your Honor, I can't make an offer of proof?

THE COURT: Well, Counselor --

MR. WEINGLASS: It's just for the record. I have a doctor here, he is being precluded. May I make an offer of proof as to

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what he would say?

THE COURT: Counselor, if you want to take the doctor back in chambers and we have an in camera as to what he is going to say, fine, okay. I am not making it part of this record as to what he is going to say because I've already ruled that it's not proper what you are trying to do. Now come on.

MR. WEINGLASS: But it is part of the record if he testifies in camera.

MS. FISK: Your Honor, Your Honor, if we could move forward I will withdraw the objection. I will not object to Counsel going beyond the scope of the affidavit. Let's just go on.

THE COURT: All right, if she is willing to waive it, fine. If there is no objection I don't have to make a ruling. She is withdrawing her objection, do whatever you want.

THE COURT OFFICER: D-23 (handing).

BY MR. WEINGLASS:

Q. Dr. Hayes, based on your examination of the Medical Examiner's report, can you tell how many times Officer Faulkner was shot?

A. No, I can not.

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John Hayes, M.D. - Direct

Q. Now, in your experience --

A. Wait, may I expand on that answer? According to the Medical Examiner's report, two separate gunshot wounds are described. And examining the photographs from the autopsy, a third wound is, is mentioned, a separate wound is mentioned on the neck (indicating). This is what really causes problems for me.

Q. Right, and you can't tell whether that is an exit wound or an entry wound?

A. No, I can't. It is not described in the autopsy report and the photographs of it are unclear.

Q. And so as an expert you can't tell how many times he was shot?

A. Yeah, I can't give an opinion as to the nature of the third wound. The second neck wound (indicating).

Q. Is that unusual for an autopsy to be completed and for a forensic pathologist examining it not to know how many times the deceased was shot?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained. I think you asked him whether or not he could tell.

MR. WEINGLASS: Right.

BY MR. WEINGLASS:

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John Hayes, M.D. - Direct

Q. In your experience, have you previously examined the Medical Examiner's report and found that you couldn't tell based on the information in the report how many times the deceased was shot?

MS. FISK: Objection.

THE COURT: What is the basis of your objection?

MS. FISK: I would ask that the question be limited to this doctor's opinion with regard to what he has seen, not his analysis of what other people might have, could have, or should have or would have discovered.

THE COURT: Based on that the objection is sustained.

BY MR. WEINGLASS:

Q. Now, as a forensic pathologist, is it important in your field of expertise for the report of the medical examiner to be complete?

A. Yes, it is.

Q. Did you find the report of Dr. Hoyer to be complete?

MS. FISK: Objection, Your Honor. My understanding at this point is that this Court ruled that the doctor could not give his opinions as to the qualifications or opinion of

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another expert, he was simply to give his opinion.

THE COURT: That's right.

MR. WEINGLASS: Simply to --

THE COURT: All I want is his opinion as to what he sees and what he finds. What his opinion is as to the cause of death. No criticism of somebody else. The fact-finder will decide what value it has.

MR. WEINGLASS: Right, I am trying to give the fact-finder facts.

THE COURT: Just give me the facts. Just let me know what he thinks.

MR. WEINGLASS: Right, I will try right now.

BY MR. WEINGLASS:

Q. Was the Medical Examiner's report complete?

THE COURT: Well.

THE WITNESS: No, it was not.

BY MR. WEINGLASS:

Q. It was not, okay. Now, was it noted in the Medical Examiner's report that a fragment was found as well as the bullet in the deceased's body?

A. Yes, it was.

Q. And did the Medical Examiner, according to his

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report, measure the fragment?

A. Yes, he did.

Q. And was the fragment a small fragment or a relatively large fragment?

MS. FISK: Objection, Your Honor. Again we've gotten into yet another area that is completely outside the scope of the offer as is included in this doctor's affidavit.

MR. WEINGLASS: Not at all. We are talking about the Medical Examiner's report and what was in the report. That's completely within the scope of what is in the affidavit.

MS. FISK: No, Your Honor.

MR. WEINGLASS: I am talking about the report, the Medical Examiner's report.

MS. FISK: And this doctor's affidavit is with regard to the death of Officer Faulkner.

MR. WEINGLASS: Yes.

MS. FISK: It is his opinion that the cause of death was incorrectly stated as gunshot wounds to the back and head and in his opinion only the gunshot wound to the head was the cause of death. That is the sole expression of opinion that this doctor gave in his affidavit.

MR. WEINGLASS: That's right.

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John Hayes, M.D. - Direct

THE COURT: Let's limit it to that.

MR. WEINGLASS: That's right, we are talking about the bullet that caused the death.

BY MR. WEINGLASS:

Q. Is the bullet that caused the death of Officer Faulkner indicated in the Medical Examiner's report?

A. Yes, it is.

Q. And was there also a fragment with that bullet?

A. Yes, there was.

Q. And that fragment was measured by Dr. Hoyer?

A. Yes, he did measure it.

Q. And how would you describe the size of the fragment?

A. He described it as I believe 10 millimeters by 3 millimeters by 2 millimeters.

Q. Now, was that fragment submitted to the ballistics laboratory, if you know?

A. I do not know.

Q. Should it have been?

MS. FISK: Objection, Your Honor.

THE COURT: Well, it has been. The records will show that. Now come on. The objection is sustained. Counselor.

MR. WEINGLASS: Right.

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John Hayes, M.D. - Direct

THE COURT: He doesn't know. He didn't read it. He wasn't here for the trial.

BY MR. WEINGLASS:

Q. In your experience do you submit fragments of bullets?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained.

BY MR. WEINGLASS:

Q. Now, to your knowledge was the deceased's body X-rayed by the coroner?

A. I do not know.

Q. When you do an autopsy do you X-ray the body?

A. If there's a penetrating injury such as a gunshot wound or a knife wound, yes, we do.

Q. And what is the purpose of X-raying the body?

A. To determine the location of, or the presence and location of ballistic evidence.

Q. And there is no indication here it was done in this case?

A. Ahh, no.

Q. Is that part of the reason why you find the Medical Examiner's report incomplete?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained.

BY MR. WEINGLASS:

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John Hayes, M.D. - Direct

Q. Now, did you render a report on your findings in this case?

A. Yes, I did.

Q. And did you sign an affidavit --

A. Yes, I did.

Q. -- for the Court? And have you examined exhibit 4 of your affidavit and does your --

A. Could you repeat that?

Q. Does your report, your affidavit and your vitae appear as exhibit 4 attached to the Petition?

A. It is an exhibit in the Petition; I'm not sure what the number is.

MR. WEINGLASS: If I may have a moment.

(Discussion held off the record
between defense Counsel.)

MR. WEINGLASS: Your Honor, at this point I would ask for discovery of the District Attorneys with respect to the X-rays, if any, that were performed on the deceased's body. And I ask that they turn over those X-rays which we have not received so that those X-rays may be examined by a qualified expert.

MS. PERKINS: Your Honor, if I may: First of all, there is no evidence that there

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John Hayes, M.D. - Direct

were any X-rays taken of Officer Faulkner's body.

MR. WEINGLASS: They could represent that and I will accept the representation.

THE COURT: Counselor, please.

MR. WEINGLASS: I will accept the representation.

MS. PERKINS: If I may, Your Honor?

THE COURT: Go ahead.

MS. PERKINS: Counsel has already requested from the City Solicitor's Office the Medical Examiner's Office, the complete record that they have in this case. Everything that was done. They have the slides that were recorded of Police Officer Faulkner's body. I don't know if they told them there were any X-rays taken. I doubt it seriously because I don't believe that today there is even a practice in the City and County of Philadelphia to X-ray deceased people. But if they have the information they should find it out or they should present it to the Court. I don't have any information to that effect. And it's not our responsibility to find it out for them.

MR. WEINGLASS: All I wanted was a

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representation that the District Attorneys do not have any X-rays of the deceased's body. And I accept that representation.

(Discussion was held off the record at
this time between Commonwealth and defense Counsel.)

MS. FISK: (Handing).

MR. WEINGLASS: We have completed. Thank you, Dr. Hayes.

MS. FISK: May I inquire, Your Honor?

THE COURT: Yes, sure.

- - - - -

CROSS-EXAMINATION

- - - - -

BY MS. FISK:

Q. Dr. Hayes, let me start with this, sir. Your curriculum vitae, which is attached to your report, sir --

A. Yes.

Q. -- is very specific with regard to the years of your internships and residences. There is no date, however, next to the first mark, which is the date, I assumed, of your graduation from medical school?

A. It was July 1985.

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Q. In June 1982, then, Doctor, would I be correct that you were a university student?

A. I was in medical school at the time.

Q. You were in medical school at the time?

A. Yes.

Q. I take it, then, in June 1982 you were not a doctor?

A. That is correct.

Q. You did not have expertise in the field of forensic pathology?

A. That is correct.

Q. And in fact could not have testified at the trial of the case of Commonwealth versus Jamal as an expert?

A. That's correct.

Q. Is that correct?

A. That is correct.

Q. Now, your graduation in 1985 from medical school led to subsequent internships and residences and a fellowship. And led to your becoming a forensic pathologist in 1990, a full-time employed forensic pathologist; is that correct?

A. Yes, 1989, the summer of 1989, I believe.

Q. 1989?

A. I'm sorry, after fellowship, yes, yes.

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Q. Your curriculum vitae reflects your current position as associate medical examiner in New York beginning in 1990; is that correct?

A. Yes, that is accurate.

Q. So your experience in terms of the practice of the field of forensic pathology and the manner in which the science of forensic pathology is conducted results from this last six years of experience you have had in the field as a full-time employed forensic pathologist; is that correct?

A. That's correct. In addition to exposure during my general for -- during my general anatomic training, yes, that is correct.

Q. I'm sorry, you said in addition to your exposure...?

A. During my general anatomic pathology training. When I was in Boston University Medical Center.

Q. Which began in 1986?

A. That is correct.

Q. All right. So for the period 1986 to now is what you based your opinions on as to what a proper, qualified forensic pathologist should do in the course of post-mortem examination; is that right?

A. That is correct.

Q. I take it, Doctor, that you have not done

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historical studies into your science; is that correct?

A. That is correct.

Q. When, Doctor, when you arrived at the medical examiner's office in New York, did they have the X-ray machines up and running?

A. Yes, they did.

Q. Do you know when they arrived in New York?

A. No, I don't.

Q. Do you know whether in fact even in New York they had the technology available to X-ray bodies of deceased victims in 1981?

A. I do not know.

Q. Well, Doctor, let me ask, then: You just gave an opinion just a moment ago that in your opinion the body of Officer Faulkner should have been X-rayed, was that your opinion?

A. Ideally, every victim of a penetrating injury should be X-rayed.

Q. Ideally, and as the technology allows in August 1995, certainly the state of the art permits you to do that in New York City; is that correct?

A. That is correct.

Q. Do you have any idea as to whether or not technology permitted that to be done or was available

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to have that done in 1981?

A. In 1981 I think the technology permitted it but I don't know if it was available to the Medical Examiner's office here.

Q. So in suggesting that any other person who would not have performed such an examination, that is X-ray examination, was not doing a sufficient job or a proper job is in fact incorrect on your part; isn't it?

A. I don't recall suggesting that.

Q. And you certainly would not, would you? If, if the X-ray machine wasn't available? My question is you don't even know whether it was?

A. That is correct, I don't know whether it was.

Q. So you can not possibly suggest that it was ineffective for a pathologist in 1981 not to perform an X-ray; isn't that right?

A. That is correct.

Q. All right. Now, Doctor, you told us, and let, we will stay with Officer Faulkner's wound. That wound's first. You told us that there were two gunshot wounds on the body of Officer Faulkner?

A. As described in the autopsy report, yes.

Q. And as evidenced by -- I'm sorry. You said

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it's described by the autopsy report; isn't that right?

A. Yes.

Q. And in fact you prepared a report in this case?

A. Yes, I did.

Q. And I take it that you were as thorough as you can be in that report to make sure that it was complete and accurate?

A. That is correct.

Q. I note that that report does not have a date on it. Could you provide me, please, with the date on which that report was prepared?

A. I don't have a date for it but it was mid 1992.

Q. I'm sorry, you said you don't have?

A. I don't know the date I prepared it but it was in mid 1992. Early autumn.

Q. Is it typical that you prepare reports that are undated?

A. No, generally I date my reports.

Q. Can you explain why this report does not bear a date?

A. Well, my private business is not very active so I'm not used to doing reports. So it wasn't an

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intentional omission.

Q. Now, since the date you prepared that report, have you received additional information?

A. Yes, I have.

Q. As a result of receiving additional information, have you prepared an addendum to this report?

A. No, I have not.

Q. Now, I note, for example, that your report reflects that with regard to your opinion on Officer Faulkner, that the materials reviewed include the Medical Examiner's findings. That would be the Medical Examiner's report, would it not?

A. That is correct.

Q. Since preparing that report, what additional, if any, materials have you received relative to your opinion regarding doctor Faulkner?

A. I received --

Q. I'm sorry, Officer Faulkner. I apologize.

A. I received Dr. Hoyer's trial testimony; I received the Jefferson Hospital records on Officer Faulkner. And I also received... I saw the photographs for the first time.

Q. When did you receive Dr. Hoyer's testimony?

A. I first saw it yesterday.

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Q. Had you asked for it prior to yesterday, sir?

A. No, I had not.

Q. Were you aware prior to yesterday that Dr. Hoyer had testified in the trial?

A. I don't recall.

Q. In your private business, Dr. Hayes, is it generally your practice to ask the person who is retaining you to provide you with all documents and records that would assist you in reaching an opinion?

A. That is my practice, yes.

Q. Now, your affidavit reflects that you were retained in this matter sometime in midsummer 1992; is that right?

A. That's correct.

Q. And at that time in midsummer 1992, after being retained, did you make that request of defense Counsel in this case, that you be provided with any and all records relating to the area that you were being asked to give an opinion on, specifically the cause of death of Officer Faulkner?

A. Yes, I did.

Q. Now, am I correct that in response to that request, the sole document which you received was the Medical Examiner's report of Dr. Hoyer?

A. I got Dr. Hoyer's medical -- the Medical

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Examiner's report, and some statements from Dr. Colletta.

Q. But the statements of Dr. Colletta -- I am not trying to confuse you -- those related to Mr. Jamal's injuries, did they not?

A. That is correct.

Q. We will just break it down. We are focusing now only on the request to evaluate the cause of death on Officer Faulkner.

A. That's correct.

Q. So I am correct, then, that you asked for any and all documents relating to the cause of death of Officer Faulkner?

A. Yes.

Q. You were provided with the post-mortem examination report prepared by Dr. Hoyer?

A. That's correct.

Q. And from 1992 until yesterday you never received any additional documents or information?

A. I received the documents within the last week. But --

Q. The records from Jefferson Hospital you also received within the last week?

A. Yes.

Q. And the photographs and slides you also

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received within the last week?

A. Yes.

Q. And Dr. Hoyer's testimony you received within the last week?

A. Yes.

Q. Does that strike you as a little odd, Doctor?

A. I assumed it was unavailable until that time.

Q. You have no idea whether or not in fact it was unavailable?

A. Ahh, no, I don't.

Q. Now, your testimony in this case is that Dr. Hoyer was incorrect, as I understand your testimony, in stating in his Medical Examiner's report that the cause of death were the gun shot wounds to the face and back of Officer Faulkner; is that right?

A. That is correct.

Q. Am I correct, however, that the -- bear with me for a moment, sir. Am I correct, sir, that that back wound to Officer Faulkner was not a significant cause of his death, would you agree with that statement?

A. Yes, I would.

Q. And if Dr. Hoyer so testified at trial, that that back wound was not a significant cause of death, would he be correct in so stating?

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A. It isn't a contributing factor in his death.

Q. No, my question, Doctor, was if Dr. Hoyer testified that the back wound to Officer Faulkner was not a significant cause of death, would he have been correct in so stating?

A. It was not a significant cause of death.

Q. So is your answer that he would have been correct in so stating?

A. He would have been correct, yes.

Q. And in fact, Dr. Hayes, when you were provided Dr. Hoyer's testimony within the last week, did you in fact read that that was precisely Dr. Hoyer's testimony?

A. That it was not a significant -- I can't remember the exact wording. He maintained that it was a contributing factor in the death.

Q. Let me read it to you, then, sir.

MR. WEINGLASS: Could I have the page?

MS. FISK: Certainly, as soon as I get to it.

June 25th, 1982. Last question starting on the bottom of page 8, 183.

BY MS. FISK:

Q. Question -- and this is on cross-examination of Dr. Hoyer by Mr. Jackson. Of Dr. Hoyer. Now,

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when you indicate that your finding of death is gunshot wounds, it's really just the facial wound, isn't that true.

Dr. Hoyer answered: There is a small contribution from the back wound, it would not be a large contribution. But there is a small, finite contribution from the back wound.

Next question: Well, if you could venture some estimation in terms of percentage, would 99 percent of the death be caused by the facial wound. Would that be fair to say.

Answer: I tend not to put percentages. I don't think these things are well suited to put percentages on.

Question: Okay, forgive me. Well, let me try it this way, sir.. Would the cause of death, the contributing nature of the back wound be a result of the loss of blood only.

Answer: That would be a major component of it.

Would you agree with that testimony, sir?

A. That, that the -- specifically which part of that testimony?

Q. Is there any of that testimony that you agree

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with?

A. I, I... I don't, I don't agree that the blood loss would be a major component of his cause of death there.

Q. Did Dr. Hoyer say it would be a major component, is that how you understood it?

A. As I understood you from that reading.

Q. Oh. Other than not agreeing that the blood loss would be a major component of the cause of death, did you agree with Dr. Hoyer's statement that the gunshot wound of the back, that there is a small contribution from the back wound, it would not be a large contribution but there is a small, finite contribution from the back wound?

A. I disagree: There is no contribution from the back wound.

Q. No contribution at all?

A. No contribution from the back wound.

Q. Is it your experience, Doctor, that in treating individuals who have gunshot wounds to the head, that a form of the treatment includes a gunshot wound to the back?

A. I'm sorry?

Q. Is it your experience, Doctor, that in treating individuals who are suffering from a gun

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shot wound to the head, that they be given a gunshot wound of the back?

A. Of course not.

Q. So the gunshot wound to the back doesn't help, does it, sir?

A. It doesn't help but --

MR. WEINGLASS: Objection, Your Honor, to the form of the question. We are talking about cause of death, not treatment of wounds. Obviously if someone is wounded the wound is treated, but that doesn't mean that it is a contributing cause of death. So I object to Counsel's form of the question. It's way off the mark.

THE COURT: Rephrase your question.

MS. FISK: All right.

BY MS. FISK:

Q. The gunshot wound to the back did not help; is that correct, Doctor?

MR. WEINGLASS: Objection, Your Honor. Of course someone isn't helped by a gunshot wound to the back.

MS. FISK: And I believe that was precisely Dr. Hoyer's point, Your Honor.

MR. WEINGLASS: Dr. Hayes has to be

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questioned on contributing causes of death. That is a separate category.

MS. FISK: No, he doesn't, Your Honor. I am permitted to cross-examination based on his opinion.

THE WITNESS: Counselor, Officer Faulkner died as a result of the gunshot wound to the face and injury to the brain. As Dr. Hoyer says, this is an instantaneously lethal thing, I think is his expression. It doesn't matter whether or not he was bleeding from the injury of the back, he died as a result of brain injury.

BY MS. FISK:

Q. How do you define instantaneously lethal, Doctor?

A. Resulting in effective immediate death.

Q. At the moment the wound is received?

A. That is correct.

Q. You just advised us that you are in receipt of Officer Faulkner's hospital records?

A. Yes, I am.

Q. Do they reflect his time of death?

A. They reflect his official time of death, yes.

Q. What is the time of death reflected as?

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A. I don't have the record with me, Counselor, but as I recall, it's approximately 5:00 a.m.

Q. And based on the information that you have received in this case, at what time did Officer Faulkner receive that instantaneously fatal gunshot wound to the head?

A. Around four o'clock in the morning.

Q. So the instant lasted approximately an hour; is that your testimony?

A. No, he was pronounced dead at five o'clock in the morning. When he is admitted to the hospital he has no blood pressure, no pulse, no respiration. His pupils are fixed and dilated. He is clinically dead. They attempted to resuscitate him for one hour but were unable to do so.

Q. That's correct, lifesaving measures were being taken for the period of time of an hour; is that correct?

A. That is correct.

Q. And he was not pronounced dead, that is he was not found to be beyond any hope of having life until one hour after receiving the gunshot wound to the head; is that correct?

A. That is correct.

Q. And that meets your definition, Doctor, of

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instantaneously fatal, is that my understanding?

A. Yes, it is, when he is admitted to the hospital he is effectively dead.

Q. Effectively dead?

A. Yes.

Q. And that is the same as pronounced dead?

A. No, he is pronounced dead one hour later.

Q. Yes. Now, the gunshot wound to the back that Officer Faulkner received I take it caused there to be a hole in his body; is that correct?

A. That's correct.

Q. And that gunshot wound so far as you can tell from the report and the slides exited in the vicinity of Officer Faulkner's neck; is that right?

A. That's correct.

Q. The gunshot wound to Officer Faulkner's head caused a projectile, and a fragment, according to the report, to be lodged in the area of Officer Faulkner's head; is that correct?

A. That's correct.

Q. And then you have given testimony today that there is an additional wound on Officer Faulkner's neck?

A. That is correct.

Q. And you have advised us that you are unable to

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give an opinion as to whether or not that additional wound is an exit or an entrance wound, that is your testimony?

A. That is my testimony.

Q. Are you certain that that wound is in fact related to a bullet?

A. No, I'm not.

Q. You don't know what Officer Faulkner was doing 45 minutes or an hour prior to being shot, do you, sir?

A. No, I don't.

Q. You have no idea whether or not on the evening of his death or the morning of his death, he had sustained wounds or injuries to his body unrelated to his being shot and killed, do you, sir?

A. I do not have any idea.

Q. Now, is it your experience, Doctor, that when a projectile, a bullet is fired at a human being, the bullet does one of two things: It either stays in that human being's body or it exits that human being's body?

A. That is correct.

Q. Those are the only two options; is that correct?

A. That's correct.

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Q. Am I correct as well that the hole in which a bullet enters a human being's body is never the same hole from which the bullet exits?

A. On rare occasions that can happen but those are exceedingly rare occasions.

Q. Okay, let's put those rare occasions aside unless you see the need to address it again. Would it be correct to say that if that wound which you saw on doctor -- I'm sorry -- on Officer Faulkner's body was an additional entrance wound, that you would expect to see either an additional exit wound, or an additional bullet in the officer's body?

A. That's correct.

Q. And are either of those two things seen?

A. None are described.

Q. If that wound on Officer Faulkner's body was another exit wound from a third projectile, am I correct that you would expect to see another entrance wound?

A. You would.

Q. And do you see another entrance wound?

A. It's not described in the autopsy report and examination of the slides, I don't think the back is properly shown, and the right side of the body. But no, I do not see another entrance wound.

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Q. Well, would it be correct, then, Doctor, that since it does not likely appear to be another entrance wound because there's no other exit wound or any other projectile, or it does not appear to be another exit wound because you don't see any or read a description of any other entrance wound, that this other wound on the neck is either, A, unrelated to the wounds Officer Faulkner had, or related to one of those two gunshot wounds that he suffered?

A. Assuming that there are no other injuries?

Q. Well, I am not asking you to assume: You have all his records and reports?

A. His records also don't reflect the injury on his neck and I know that's there.

Q. Well, you see it in the picture, right?

A. I see it in the picture but I am saying I can't see pictures of the right side of the head or the back so I don't know if there are any others. What I am saying is I can't evaluate that injury properly, it is not properly described in the autopsy report.

Q. So you are suggesting that a bullet entrance wound was not described, is that --

A. No, I am suggesting that there is a wound, I am stating that there is a wound in the left side of

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the neck which is not described. I don't know whether it is an entrance, I don't know whether it is an exit, it could even possibly be unrelated. I just don't know because the pathologist has not described it and it is not properly photographed.

Q. Well, in fact the pathologist at trial didn't describe it because the defense attorney objected to him describing it; is that correct, sir?

A. I believe that is correct.

Q. Now, you've described that neck wound as just going through really underneath the skin and then exiting; is that correct?

A. That is correct.

Q. And is the skin in the area of the neck generally very flexible, that is that it folds when one moves one's head?

A. It's fairly lax, yes.

Q. Would you, would it be possible when, would it be possible that when a gunshot wound is exiting an individual's neck, that the folds of the skin would cause a single projectile to eject itself from more than one part of that individual's neck?

A. You mean for the bullet to split over the skin?

Q. No, the skin is folded over in the area where

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the bullet is leaving the body (indicating)?

A. You mean, you mean on occasion if the skin, if the skin is folded like that the bullet may leave one part of the body and reenter to cause a separate, second wound?

Q. Yes, like when a bullet goes through the arm and reenters the chest (indicating)?

A. That's correct.

Q. My next question is, then, if the bullet is exiting the portion of the neck where Officer Faulkner's neck were folded over in this way, isn't that also a part of the body where the skin could fold over and cause the bullet to, in effect, exit two parts of the skin at one time?

A. Well, not really. One bullet can not only go out once, it can go back into the body and then leave a second time?

Q. That's right. And if the neck were folded in such a fashion to cause a bullet to exit and then reenter and exit again, wouldn't that cause more than one hole in the area of the neck?

A. I would expect three holes there.

Q. You don't see that in the photographs?

A. I don't see three holes in the neck.

Q. If a bullet which entered an individual's body

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were to fragment and both fragments were to leave that individual's body, would that cause two exit wounds?

A. Yes, it would.

Q. And are you able to determine whether or not that occurred with regard to the bullet which exited Officer Faulkner?

A. Ahh, that scenario describes a completely subcutaneous pathway, a short subcutaneous pathway with no description of any injury of a solid structure so there is nothing there to cause the fragment to stop during it's short course.

Q. So in your opinion that did not occur?

A. I don't think so.

Q. Now I would like to turn briefly to the injuries on Mr. Jamal. You told us today that in your opinion -- oh, I'm sorry. Let me start by again going back to your report which was prepared sometime in 1992. In your report you reflect that the materials which you reviewed regarding the injury to Mr. Jamal were medical reports from Thomas Jefferson University Hospital, the Philadelphia Police Department interview of Dr. Colletta, and Dr. Colletta's trial testimony. Is that correct?

A. That is correct.

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Q. So you received those items back in, prior to mid 1992?

A. That's correct.

Q. Apparently Dr. Colletta's trial testimony was available; is that correct?

A. Yes, that is correct.

Q. And you received those items in response to your request again that you be provided with any and all records that you could utilize?

A. That is correct.

Q. Do you have any idea -- and I am going to jump back to Officer Faulkner -- why you were not given Dr. Hoyer's testimony, then, back in 1992?

A. I don't know what was available to the defense at that time.

Q. When you received it earlier this week did you ask about that?

A. No, I didn't.

Q. That did not puzzle you in any way?

A. It didn't occur to me to be puzzled about it, no.

Q. Now, am I correct that since receiving -- again back to Mr. Jamal's injuries -- since receiving those three items, which you relied upon for rendering an opinion regarding Mr. Jamal's injuries,

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have you received anything else?

A. In regard to Mr. Jamal?

Q. Yes, sir.

(Pause.)

A. Oh... no, I don't think so.

Q. Well, earlier in your testimony didn't you refer to having reviewed the testimony of Dr. Tumosa?

A. Yes.

Q. When did you receive Dr. Tumosa's testimony?

A. Last night.

Q. Last night?

A. Yes.

Q. So that is information that you have received since preparing that report?

A. Yes, that is correct.

Q. Did you receive that last night based upon an additional request that you made to review that or was it just provided to you?

A. Umm, I asked if there was any information about the clothing of Mr. Jamal.

Q. Was last night the first time that you asked that question?

A. Yes, it was.

Q. Doctor, in your career as a forensic pathologist, clearly you rely upon the bodies of the

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deceased: I mean they are before you; is that correct?

A. That is correct.

Q. But am I correct that forensic pathologists by definition rely upon other items of information in giving opinions with regard to cause and manner of death?

A. That's correct.

Q. And am I correct that, for example, the, well, the toxicology results are included in that?

A. That is correct.

Q. Interviews of witnesses as to what happened or how someone's injuries happened are considered by forensic pathologists?

A. That is correct.

Q. No forensic pathologist's opinion or report would be complete until they had at least an opportunity to know what those interviews said; isn't that right?

A. That's correct.

Q. And included within those kinds of standard items that a forensic pathologist considers prior to giving an opinion, would you agree with me that one of those items, particularly where a victim has suffered a gunshot, would be the clothing of that

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individual?

A. That's always useful information.

Q. Because the clothing of that individual could disclose a great deal about the distance of muzzle to target?

A. That's correct.

Q. It could also even provide information about the direction of fire, depending on the kind of clothing the individual had?

A. That's a bit less likely but on occasion, yes.

Q. So that was certainly the kind of information that you as a trained forensic pathologist would always want to see before rendering an opinion as to the nature of or cause of a particular wound; isn't that right?

A. It's best to have as much information as possible, yes.

Q. No, my question was, that information regarding the clothing of the individual would always be the kind of information that you as a forensic pathologist would want prior to rendering an opinion as to the cause of an injury?

A. Not so much the cause but in the issue of the gunshot wound, yes, it is useful information in determining the range of fire and would be useful in

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determining --

Q. That was not my question. My question is not would it be useful, my question is is it the kind of information which you determine is or is not available so that you could have it before rendering an opinion?

A. I don't routinely ask for the clothing but on occasion I will.

Q. You don't routinely ask for the clothing, Doctor?

A. I don't routinely ask for the clothing.

Q. Did you not say just a few moments ago that you got as much information as you can?

A. Yes.

Q. And that the clothing of the individual is certainly among those items of information if it existed you would want to know about?

A. That's true.

Q. Yet what you are telling us is that as a trained forensic pathologist who was asked to under oath render an opinion in courts of law in New York and around the country, you only take what people give you?

A. That's correct.

Q. And you don't request whether or not there is

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any other specific information which you know in your opinion as an expert would assist you in giving a more complete and thorough opinion?

A. Okay, well, I did ask for it last night.

Q. And from 1992 until -- today is August 4th -- until August 3rd, 1995, you never made that request?

A. I did not.

Q. And last night you did for the first time?

A. Yes, I did.

Q. Why is that?

A. Because I was considering possible different positionings of the body with different circumstances for the shooting.

Q. That's because the clothing of the individual might give you some information inconsistent with the opinion that you've rendered; isn't that correct?

(Pause.)

A. Could you repeat that question, please?

Q. You advised us that you asked last night whether or not there was any evidence regarding the clothing of Mr. Jamal; isn't that right?

A. Yes, I did.

Q. Because you were concerned about -- I don't want to misstate you -- you were concerned about the different positions of the shooter and the victim?

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A. More a question I was concerned about range of fire.

Q. I can not hear you.

A. All right, I'm sorry. It was more a question I was concerned about the range of fire.

Q. Why was that, sir?

A. Why was I concerned about the range of fire?

Q. Yes.

A. Because it would be relevant to determining the positions of the, of the victims -- I mean the distance from the shooter and victim at the time of the incident.

Q. So the distance of the shooter to victim would affect the position of the relative bodies, that is the gunshot of Officer Faulkner and the body of Mr. Jamal; is that right?

A. That is correct.

Q. You did not have that information regarding those, that item when you issued your report in 1992?

A. That is correct.

Q. Yet you were comfortable in putting your name on that report and noting that it was correct; is that right?

A. Yes, I was.

Q. And you merely checked yourself last night

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when you asked to see whether or not there was evidence which showed you were right, is that --

A. Essentially. I should have asked for it before, yes.

Q. Now, am I correct that, or is there anything in the testimony of Dr. Tumosa which causes you to change your opinion?

A. No, there's not.

Q. Okay, you lucked out on that one?

MR. WEINGLASS: Objection. Ask that it be struck.

THE COURT: Well, the last comment is struck.

BY MS. FISK:

Q. Now, you told us, Doctor, that in your opinion... the gun which fired the bullet which struck Mr. Jamal had to be angled downward towards Mr. Jamal; is that right?

A. That is correct.

Q. And you have described the relative positions of the Defendant and Officer Faulkner as being the Defendant was slightly bent and the shooter was firing horizontally?

A. That was one alternative I suggested.

Q. And the other was, as noted in your report as

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well... includes a standing shooter firing down at a prone Mr. Jamal?

A. Or kneeling, yes.

Q. Pardon me?

A. Or kneeling.

Q. Kneeling shooter or kneeling Mr. Jamal?

A. Standing shooter firing downwards towards Mr. Jamal, who was in the lower position.

Q. I see. Now my question to you, sir, is what do you mean by slightly bent? You said in your direct examination that the Defendant Mr. Jamal would have been slightly bent and the shooter firing horizontally?

A. The shooter is firing horizontally, Mr. Jamal is bent over like this (indicating) at perhaps a 30-degree angle from the vertical, maybe a little bit more, 40-degree angle from the vertical, that would account for a wound like that.

Q. You are indicating bent at a 30 or 40-degree angle from the waist bending forward?

A. That is correct.

Q. And when you say a shooter firing horizontally, what do you mean by that?

A. Where the weapon is held with the barrel pointing horizontally, parallel to the ground.

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Q. Now, any change or deviation of the weapon could of course be matched by a change in the position of Mr. Jamal to keep the course of the wound as you observed it consistent, wouldn't that be?

A. That is correct.

Q. So if Mr. Jamal, if the barrel were slightly downward, Mr. Jamal's body could be slightly less bent and the track of the wound would still be consistent; is that accurate?

A. That is correct.

Q. And if the barrel were more slightly upward, Mr. Jamal's body could be more significantly bent forward and perhaps in a 45-degree angle and the course of the wound would still be consistent with what you saw?

A. That is correct.

Q. Now, am I correct, Dr. Hayes, that other than those items of trial testimony which you have told us about -- testimony of Dr. Hoyer, the testimony of Doctor... Colletta, and the testimony of Mr. Tumosa -- that you have not reviewed any other trial testimony?

A. That is correct.

Q. Well, let me pose this to you, then, Doctor. If an individual with a gun came behind another

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individual and fired a gunshot wound into the back of that individual consistent with the gunshot wound that Officer Faulkner suffered, that the person who received that gunshot wound to the back as a result of feeling that gunshot wound took a weapon, spun around and fired at the person who had shot them before that person then falls as a result of the impact of that wound, could such a person cause a wound on the original shooter consistent with what you saw on the body of Mr. Jamal?

A. Turning around and firing...

Q. At the person who has just fired upon him?

A. If, if Mr. Jamal were bent over, were bent over, bent forward, it's possible.

Q. Did you ask, Doctor, to see any of the transcripts from trial relating to how Mr. Jamal received the wound -- I'm sorry -- relating to what witnesses observed between Mr. Jamal and Officer Faulkner at the time Officer Faulkner received his injuries?

A. No, I did not.

Q. Do you think, Doctor, that the review of such information would assist you in more definitely being able to state the cause and nature, manner of Mr. Jamal's wounds?

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John Hayes, M.D. - Redirect

A. It would depend upon the reliability of the witnesses.

Q. Just so I'm clear: Your definition of a standing shooter is the shooter who is not down on the ground?

A. Who is standing vertically, yes, who is standing vertically.

Q. But not necessarily in a full upright, erect posture, they could be moving in some fashion?

A. Yes.

Q. Because really what you are looking at is the direction the barrel is facing: The relative position of the person holding the barrel is less relevant?

A. That's correct.

MS. FISK: Thank you. Thank you, Doctor. I have nothing further.

- - - - -

REDIRECT EXAMINATION

- - - - -

BY MR. WEINGLASS:

Q. Doctor, with respect to the last part of the questioning: Were you informed that in the trial record, and did you rely on this information, that there was only one witness who claimed that she might

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John Hayes, M.D. - Redirect

have seen Mr. Jamal get shot by Officer Faulkner?

MS. FISK: Objection, Your Honor, as to whether he was informed.

MR. WEINGLASS: I am asking if he relied on it. The same question.

MS. FISK: I withdraw that objection.

THE WITNESS: I was informed that there was only one witness who had said that.

BY MR. WEINGLASS:

Q. Only one witness?

A. Yes.

Q. And were you informed and did you rely on the fact that that witness stated that Officer Faulkner appeared to be grabbing at something as he was falling?

MS. FISK: Objection, Your Honor.

MR. WEINGLASS: Did you rely on that information.

MS. FISK: I will withdraw that.

BY MR. WEINGLASS:

Q. Did you rely?

A. Yes.

Q. And did you rely on the fact that that witness never said that she actually saw the weapon if Officer Faulkner retrieved the weapon from whatever

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John Hayes, M.D. - Redirect

he was grabbing at?

A. That wasn't the verbatim part of my conclusion.

Q. And did you rely on the fact that the witness said she never actually saw Mr. Jamal get shot?

(Pause.)

Q. Let me withdraw that and ask it, break it down.

MS. FISK: I would ask that the witness be permitted to answer.

THE COURT: Let him have time to think about it.

MR. WEINGLASS: I can withdraw, as a questioner I could withdraw.

THE COURT: Let the record show he is now withdrawing that question.

MR. WEINGLASS: Of course the record shows that.

THE COURT: Okay.

MR. WEINGLASS: And the Court needn't add relish to what it perceives to be something that the Court enjoys.

THE COURT: Let the record show I am not enjoying anything, Counselor.

BY MR. WEINGLASS:

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John Hayes, M.D. - Redirect

Q. Let me ask you this. The only information that you were given and relied upon was that the only witness to observe a possible shooting of Mr. Jamal at the moment said that she saw the officer as he was falling grab at something?

A. That is correct.

Q. And so when you gave your opinion, did your opinion rely on that information that Mr. Jamal was shot by a falling officer?

MS. FISK: Objection, Your Honor.

MR. WEINGLASS: All that's in the record.

MS. FISK: Objection, Your Honor. It is obviously not all that is in the record. The Jury found that there was sufficient evidence to support a finding that Mr. Jamal was shot by Officer Faulkner.

THE COURT: I will let you cross on that issue. I don't know of --

MR. WEINGLASS: The Jury made no such finding. The Jury made no such finding.

MS. FISK: Judge --

MR. WEINGLASS: That Mr. Jamal was shot by Officer Faulkner. They made no such finding. No one has been able to explain how

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John Hayes, M.D. - Redirect

Mr. Jamal was shot and it was no part of the Jury's finding.

THE COURT: What do you mean it was --

MR. WEINGLASS: It was no part.

THE COURT: Nobody asked. Well, nobody asked him a question but the Jury heard it and I'm sure they considered it.

MR. WEINGLASS: And the Jury heard one thing. And if Counsel --

MS. FISK: I withdraw my objection to the question.

MR. WEINGLASS: All right.

THE COURT: Go ahead.

THE WITNESS: That's correct.

THE COURT: What is correct? Wait a while. I don't know that there is anything pending here yet.

MR. WEINGLASS: There is.

MS. FISK: There was a question.

THE COURT: Give him a question. So I find out what he is talking about being correct.

BY MR. WEINGLASS:

Q. Did you rely on the fact that the information that was given to you was that Mr. Jamal was shot by Officer Faulkner as he was falling?

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John Hayes, M.D. - Redirect

A. Yes, I did.

MR. WEINGLASS: Now, if Counsel has anything in the record that indicates otherwise she may question on it.

THE COURT: Counselor, please. When she gets to cross let's find out what she wants to do.

MR. WEINGLASS: I represent to the Court that all that's in the record.

THE COURT: Counselor, please, just ask your questions. No more comments, will you.

BY MR. WEINGLASS:

Q. So your opinion that it could not have happened that way was based on information which you relied on that the only witness to see Mr. Jamal being shot said that he was shot by someone who was falling?

A. That is correct. That is addressed in my affidavit.

Q. Now, you're here giving your opinions today; is that correct?

A. That is correct.

Q. Based on your preparation for this appearance?

A. That is correct.

Q. Correct? In your affidavit did you say the

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John Hayes, M.D. - Redirect

following? I was advised that Mr. Jamal did not have the services of a forensic pathologist available to him at trial. Although I am not familiar with the full trial record, it would appear that since I disagree with both the Medical Examiner's findings with respect to cause of death, and Dr. Colletta's postulation of a possible ricochet to explain the trajectory of the bullet through Mr. Jamal's body, Mr. Jamal's defense required and would have been well served by the testimony of a qualified forensic pathologist?

A. That is absolutely correct.

Q. And that was the limited purpose for which you were brought to Court today; isn't that correct?

MS. FISK: Objection, Your Honor.

THE COURT: Well, it was a lot more than that.

BY MR. WEINGLASS:

Q. That was the limited purpose, weren't you told that?

A. That's correct.

Q. So you weren't told to recreate completely what happened in '82, you were asked if based on what was available to you --

THE COURT: Counselor.

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John Hayes, M.D. - Redirect

BY MR. WEINGLASS:

Q. -- Mr. Jamal should have had a forensic pathologist?

THE COURT: Counselor, that's '81.

MR. WEINGLASS: No, the trial was '82.

THE COURT: I know, but the incident occurred in '81.

BY MR. WEINGLASS:

Q. I know but Mr. Jamal needed a forensic pathologist in '82?

A. Yes, he certainly did.

Q. Yes. And so the fact that you, what you had available to you in 1992 to examine helped you to the conclusion that Mr. Jamal should have had a forensic pathologist?

A. Most definitely.

Q. Is there anything that you've seen since that changes your mind?

A. Absolutely not.

Q. As a matter of fact, what you have seen since, does that even further fortify the fact?

A. Yes, it does.

Q. That he should have had a forensic pathologist?

A. He most certainly should have had a forensic

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John Hayes, M.D. - Redirect

pathologist.

Q. Now, the photographs that you looked at which are D-23: Do you know when the defense obtained them through subpoena?

A. No, I don't.

Q. Do you know if they were obtained last week?

A. No, I don't.

Q. If a forensic pathologist were available to Mr. Jamal in 1982, would his Counsel have been able to subpoena those photographs and show them to the pathologist before he testified?

MS. FISK: Objection, Your Honor. How could he know that?

THE COURT: Well, I only thought he was a pathologist. That's something for an expert in the legal field.

MR. WEINGLASS: Yes, let me just, I will withdraw that and ask this.

BY MR. WEINGLASS:

Q. The hospital records that you've seen for Officer Faulkner, the photographs that you've seen just recently, and the testimony that was offered at trial by Dr. Hoyer, would that in your experience have been available to the forensic pathologist in 1982 at the time that he was called by the defense?

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John Hayes, M.D. - Redirect

MS. FISK: Objection, Your Honor. What forensic pathologist? This doctor was in medical school then.

THE COURT: I don't think --

MR. WEINGLASS: I am not asking for him. He is not Mr. Fassnacht. Of course Dr. Hayes wasn't available. I'm asking if a forensic pathologist in 1982 would have had all those things available to him, to a forensic pathologist.

THE COURT: Well, Counsel, he is not qualified to testify on that. He is no legal expert.

MR. WEINGLASS: Well, Your Honor, he's looked at three --

THE COURT: I know that. He's here only as a pathologist.

MR. WEINGLASS: Right.

THE COURT: And he is an expert in that field. That's the only field in which I have allowed him to testify.

BY MR. WEINGLASS:

Q. Would the photographs have been available in 1982, to your knowledge?

MS. FISK: Objection.

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John Hayes, M.D. - Redirect

THE COURT: I will have to sustain that.

BY MR. WEINGLASS:

Q. Would the hospital records of Officer Faulkner be available in 1982?

MS. FISK: Objection.

THE COURT: I will have to sustain those objections, Counselor. Please. How could he answer that, he wasn't even a doctor yet in '82.

BY MR. WEINGLASS:

Q. Is there a difference in your view, Doctor, between what is recorded as an official time of death and a time at which a person is medically dead?

A. Yes, most definitely.

MS. FISK: I'm sorry, could we perhaps turn the doctor's microphone back on.

THE COURT: It's on.

MS. FISK: Well, it stopped picking up.

THE COURT: Did you check that? To make sure that thing is on.

THE COURT OFFICER: It's on, sir.

THE WITNESS: Maybe a loose connection there, I will try not to touch it.

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John Hayes, M.D. - Redirect

THE COURT: Go ahead. Did you hear the last answer? Did you hear the last answer?

MS. FISK: I heard it, Your Honor. I was just asking that we make the rest of the answers easier. Thank you, sir.

THE COURT: Go ahead.

THE WITNESS: You were asking me about the official time.

THE COURT: He hasn't asked you anything.

MR. WEINGLASS: I was, he was in the middle, he was cut off.

THE COURT: No, he had already answered that, she heard that. Do you have another question.

BY MR. WEINGLASS:

Q. Right. Is there a difference between the official time of death that's recorded by a hospital and the medical time of death?

A. Yes, there is.

THE WITNESS: I'm sorry, is this working still?

THE COURT OFFICER: One second, Your Honor. One second.

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John Hayes, M.D. - Redirect

THE WITNESS: I'm sorry.

BY MR. WEINGLASS:

Q. Is there a difference between the two times of death?

A. Yes, there is. Yes, there is the official time of death, is the time in which the person is pronounced dead. And that can be up to years from the time of actual death. For example, in the case of a skeleton found in a wood. When the skeleton is found the body is pronounced death. That is the official time of death. Obviously, in an extreme example like that death would have occurred much earlier.

Q. I see. And in your view, when was the time of death of Officer Faulkner?

A. It would be instantaneous on sustaining the gunshot wound. When he was admitted to the hospital his heart wasn't beating, he wasn't breathing, and his pupils were fixed and dilated. They went all out but there was nothing they could have done because he was dead on arrival at the hospital.

Q. Was this literally an attempt by the hospital personnel to bring someone back to life who was actually dead?

A. Effectively, yes.

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John Hayes, M.D. - Redirect

Q. Now, you were questioned about that second wound on the neck, whether that wound was an entry wound or an exit wound or a nick that was caused by shaving in the morning, or something that was inflicted in the mid-afternoon prior to the occurrence. Should that wound have been noted by the Medical Examiner?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained.

BY MR. WEINGLASS:

Q. You were questioned about if you knew when that second wound was inflicted. Or when it occurred. Is that difficult for you to answer because the Medical Examiner failed to note the wound in the Medical Examiner's report?

A. Yes. And he has failed to describe it.

Q. He failed to describe it?

A. Yes.

Q. If there would have been an adequate description of that second wound, would you have been able to give an expert opinion as to what caused that second wound and whether or not it was related to the incident?

MS. FISK: Objection, Your Honor: That calls for speculation.

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John Hayes, M.D. - Redirect

THE COURT: Yes.

MR. WEINGLASS: Experts are paid to speculate, as long as they have the expertise.

THE COURT: Expert opinions are within a reasonable degree of medical certainty. No speculation.

BY MR. WEINGLASS:

Q. Within a reasonable degree of medical certainty, would you have been able to give an opinion if that wound had been described in the Medical Examiner's report?

A. If the wound had been described and appropriately photographed, I would have been able to give more information, at least some information.

MR. WEINGLASS: Could I have just a minute.

(Discussion held off the record
between defense Counsel.)

BY MR. WEINGLASS:

Q. Dr. Hayes, is one of the functions of the medical examiner's report to inform the reader so that various hypotheses can be developed as to what occurred at the time of the incident?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained. If it's there

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John Hayes, M.D. - Redirect

it's there.

MR. WEINGLASS: Pardon?

THE COURT: Whatever is there is there. And if you are a good attorney you will be able to cross-examine. Go ahead.

BY MR. WEINGLASS:

Q. Does the medical examiner's report serve to inform the reader as to what occurred at the time of the incident?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained.

BY MR. WEINGLASS:

Q. And would an incomplete medical examiner's report fail to accurately provide information to the reader so that hypotheses could be developed as to what occurred at the time of the incident?

MS. FISK: Objection, Your Honor.

THE COURT: Sustained.

BY MR. WEINGLASS:

Q. Will a medical examiner's report that is properly and fully prepared inform the reader as to the possible positions of the parties involved in the episode?

MS. FISK: Objection, Your Honor, to the form of the question.

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John Hayes, M.D. - Redirect

THE COURT: Sustained. It takes a lot more than a medical report, Counselor.

MR. WEINGLASS: The medical report is a good place to begin.

THE COURT: It goes to the cause of death. There are a lot of other things that go into determining positions and everything else.

MR. WEINGLASS: Your Honor, it describes the wound.

THE COURT: Counselor.

MR. WEINGLASS: The wound, the path of the bullet.

THE COURT: That's all. And as to the cause of death.

MR. WEINGLASS: And if it doesn't describe the wounds --

THE COURT: But there are other factors that will enter into it, Counselor. You can't just look at the medical report.

BY MR. WEINGLASS:

Q. Is one of the reasons why you've given us the opinion and you have asserted in your affidavit that Mr. Jamal needed the services of a forensic pathologist at his trial in 1982 was because the opinions of that forensic pathologist would have

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John Hayes, M.D. - Recross

contradicted the testimony offered by an eyewitness?

MS. FISK: Objection, Your Honor.

THE COURT: I will have to sustain that, that's really speculation now.

BY MR. WEINGLASS:

Q. In any event, in your view, any testimony that Mr. Jamal was shot by a falling Officer Faulkner would have to be false; isn't that true?

MS. FISK: Objection, Your Honor: That's been asked and answered.

MR. WEINGLASS: Not in that form.

THE COURT: Yes, it has. We are going over the same thing over and over. This is redirect. Come on, Counselor, move on. We are not going to be --

MR. WEINGLASS: I have nothing further.

MS. FISK: I have a couple, Your Honor.

THE COURT: Go ahead.

- - - - -

RECROSS-EXAMINATION

- - - - -

BY MS. FISK:

Q. As I understood it, about five questions back

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John Hayes, M.D. - Recross

you were asked whether, had the nature of this other neck wound on Officer Faulkner been more specifically described, whether you could give an opinion to a reasonable degree of medical certainty as to it's cause. Do I understand your answer to that question was no, you could not assure us of that?

A. I would be able to give more information. I may not be able to identify it, but if they evaluated the wound properly I would also have been able to give input.

Q. So your answer to that question was no, you could not assure us you could give an opinion to a reasonable degree of medical certainty as to it's cause; is that correct?

A. If it included adequate information about the wound, yes, I could have.

Q. Now, you could have, but when Mr. Weinglass asked you you said you could give more information but you did not say that yes you could give an opinion?

A. I said if I had more information about the wound I would be able to give an opinion about the wound.

Q. Well, that is not what you said, is it?

THE WITNESS: I'm sorry.

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John Hayes, M.B. - Recross

MR. WEINGLASS: Objection: Argumentative. The record speaks for itself. And Counsel is misstating the record.

MS. FISK: Oh, I am not, Your Honor. The witness testified he might be able to give more information. He did not say he might be able to give an opinion, but he could give more information. But I will move on.

BY MS. FISK:

Q. Let me go back again to the information you were provided as to the manner in which Mr. Jamal may or may not have received a gunshot wound. It is clear, do I understand, that Mr. Jamal received a gunshot wound?

A. That's correct.

Q. And in fact that he received a gunshot wound close in time as to when Officer Faulkner received two gunshot wounds; is that also clear from the record you have received?

A. Yes.

Q. Now, you told us that and you agreed that a forensic pathologist in addition to looking at slides and bodies also looks at interviews and reports and chemical analyses and the like in order to more thoroughly create an opinion as to what occurred and

Page 100.

John Hayes, M.D. - Recross

what caused a particular injury?

A. That is correct.

Q. And in fact when I asked you earlier about whether certain information would be helpful to you or not, your response to me was well, it depended upon the reliability of that information; is that right?

A. That is correct.

Q. And the reliability of that witness?

A. That is correct.

Q. Is that correct? All right. Now, as I understand your testimony today -- and correct me if I am wrong -- you have in this case accepted all the representations regarding how the shooting occurred from a summary that Mr. Weinglass or some other persons retained on behalf of Mr. Jamal have presented to you?

A. I was informed of the prosecution theory of the shooting and I addressed that in my response -- in my report.

Q. Was it a prosecutor who informed you of the prosecution theory?

A. No, it was not.

Q. Who was it, sir?

A. Mr. Weinglass.

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John Hayes, M.D. - Recross

Q. Oh, so Mr. Weinglass knew what the prosecution theory was?

A. I believe so, yes.

Q. You believe so?

A. Yes.

Q. Are you certain?

A. Umm, as I understood it, the summary of the testimony was that a witness claimed to have seen Officer Faulkner reaching for his gun and, and apparently while falling, and then Mr. Jamal was shot.

Q. Is that the extent of the information that you were provided by Mr. Weinglass?

A. Effectively, yes. I don't remember the specifics.

Q. Do I take it, then, that you were unaware that that witness was on the witness stand for something in excess of two days?

A. I was unaware of that.

Q. Do you believe that perhaps in the course of the two days of that witnesses' testimony some additional details might have been gleaned with regard to her description of how that shooting occurred?

MR. WEINGLASS: Objection to the form:

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John Hayes, M.D. - Recross

Do you believe that perhaps some information might have been. Double speculation in one question.

THE COURT: Make it into two questions, then, will you.

MS. FISK: Okay.

BY MS. FISK:

Q. In the course of two days of testimony, does an individual say more than what you just told us Mr. Weinglass told you?

A. Yes.

Q. Might there be more details in that witness' testimony than that which Mr. Weinglass gave you?

A. There might be but I was asked specifically to respond to a scenario how would the findings as reflected in the information I was provided relate to a scenario in which that occurred.

Q. So that I'm clear, then: You were asked expressly to give an opinion based upon the summary of a witness as interpreted by Mr. Weinglass; is that correct?

A. Mr. Weinglass asked me if those wounds would be consistent with a falling shooter shooting the victim.

Q. That being Mr. Weinglass' interpretation of

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John Hayes, M.D. - Recross

how the wound occurred?

A. Perhaps.

Q. As a forensic pathologist, do you ordinarily accept such secondhand information when firsthand information is available?

A. You mean the witness' testimony?

Q. Yes.

A. I was responding specifically to a hypothesis. I didn't need to see anymore detailed witness testimony. It is a specific hypothesis.

Q. So that all of the testimony that you have given today is merely hypothetical; is that correct?

A. No, it is on the basis of the records that were supplied to me that I have available.

Q. Well, isn't it also based -- I thought you just said, Doctor, and perhaps I'm not hearing correctly -- that it was a hypothesis --

MR. WEINGLASS: Objection.

BY MS. FISK:

Q. -- based upon the description of a falling shooter; is that right?

A. The hypothesis of how the injury occurred?

Q. Yes.

A. Yes.

Q. So that the opinion that you have provided is

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John Hayes, M.D. - Recross

hypothetical because you're relying upon a hypothesis?

MR. WEINGLASS: Objection, Your Honor. Counsel is confused and is trying to confuse the witness.

THE COURT: No, this is cross-examination, Counselor.

MR. WEINGLASS: No.

THE COURT: Your objection is overruled.

MR. WEINGLASS: Judge --

THE COURT: He could answer that question.

MR. WEINGLASS: There is a difference between hypothesis and hypothetical. The witness --

THE COURT: If he doesn't understand it, he is a doctor, he'll say I don't understand the question. Rephrase it.

MR. WEINGLASS: That doesn't mean an improper question may be asked.

MS. FISK: Your Honor, I withdraw the question. I have no further.

MR. WEINGLASS: Good.

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John Hayes, M.D. - Redirect

- - - - -

REDIRECT EXAMINATION

- - - - -

BY MR. WEINGLASS:

Q. Dr. Hayes, you are here in Court today, would you offer an opinion based on a hypothesis of what the testimony of Cynthia White was offered right now by the Commonwealth's Counsel?

MS. FISK: Objection, Your Honor.

THE COURT: I will have to sustain that.

MR. WEINGLASS: Right.

BY MR. WEINGLASS:

Q. Do you know that the transcript --

THE COURT: You have to understand now this is redirect for the second time.

MR. WEINGLASS: Yes.

THE COURT: For the second time.

MR. WEINGLASS: I am talking about hypothesis, which Counsel brought up.

THE COURT: She withdrew the question and there is nothing more to say about that. She withdrew her question.

MR. WEINGLASS: Right, and I am entitled to go within the realm of those

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John Hayes, M.D. - Redirect

questions.

THE COURT: No, she withdrew that question.

MR. WEINGLASS: She asked three or four before it.

BY MR. WEINGLASS:

Q. Dr. Hayes --

THE COURT: Oh, boy.

BY MR. WEINGLASS:

Q. If Counsel right now seated at this table for the District Attorney's Office gives you page and chapter and verse of Cynthia White's testimony, as to what she saw when Mr. Jamal was shot, would you offer an opinion based on your reading of the medical evidence that's before you?

MS. FISK: With all due respect, Your Honor, I do not recall hiring Dr. Hayes as my expert witness. Therefore, I do not recall obtaining an obligation to adequately prepare him for his testimony by providing all records of the trial.

THE COURT: I understand that. The objection is sustained. Now, if you don't have anything further, something new to bring up, Counselor, I am going to break for

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John Hayes, M.D. - Redirect

lunch. If you want to bring him back. If you won't --

MR. WEINGLASS: Your Honor, I just have a few.

THE COURT: Well, wait awhile. Wait awhile. It's 20 after 12:00. We will recess until --

MR. WEINGLASS: No, Your Honor.

THE COURT: We will recess until --

MR. WEINGLASS: All right.

THE COURT: We will recess until 2:30 for lunch.

MR. WEINGLASS: In light of the Court's observation, I have no further questions. And I do so under protest.

THE COURT: No, you are not going to do that under protest. We are breaking for lunch.

MR. WEINGLASS: I have no further questions. I ask that the witness be excused.

THE COURT: You are not excused.

MR. WEINGLASS: Your Honor --

THE COURT: You are not excused. Until 2:30, we will bring him back here if you want to ask him more questions.

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John Hayes, M.D. - Redirect

MR. WEINGLASS: That is simply punitive.

THE COURT: No, it is not punitive.

MR. WEINGLASS: It is punitive. I have no further questions of the witness.

THE COURT: But you are saying it is under protest.

MR. WEINGLASS: I have no further questions. Let the record speak for itself as to what is happening here.

THE COURT: Well, I am giving you an opportunity to go further but we will do it at 2:30. I want lunch.

MR. WEINGLASS: I have no further questions of the witness. The Court can have it's lunch.

THE COURT: And you don't want to call him back?

MR. WEINGLASS: No.

THE COURT: Then you are doing it at your own peril.

MR. WEINGLASS: Let the record show why I am doing it.

THE COURT: Let the record show that I made him available to you after lunch to

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John Hayes, M.D. - Redirect

continue your redirect. We will recess for lunch.

MR. WEINGLASS: No further questions. The witness is excused.

MS. FISK: Your Honor, may I inquire as to what other witnesses Counsel intends to produce this afternoon?

THE COURT: I don't know, I will wait until 2:30, we will be back.

MS. FISK: Mr. McGill is entitled to know.

THE COURT: As far as I am concerned, he is still here.

MR. WEINGLASS: Your Honor, I ask that he be excused.

THE COURT: If you want to excuse him you do it at your own peril. I am making him available for further questions at 2:30.

MR. WEINGLASS: I ask he be excused. I have no further questions. This is an extraordinary exercise of punitiveness on the part of this Court.

THE COURT: No, you could do whatever you want to do at 2:30. Bring him back at 2:30.

THE COURT OFFICER: This Court is

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John Hayes, M.D. - Redirect

recessed until 2:30.

(Luncheon recess was held at this time.)

THE COURT: Good afternoon, everyone.

- - - - -

John A. Hayes, Junior, M.D., having been previously
sworn, was examined and testified as follows:

- - - - -

BY MR. WEINGLASS:

Q. Dr. Hayes, were you given a factual hypothesis to direct your work in this case?

A. Yes, I was.

Q. And what was the factual hypothesis?

A. That --

MS. FISK: Objection, Your Honor. That was previously testified to.

THE COURT: Yes.

MR. WEINGLASS: Reopened on cross. Opened on cross.

THE COURT: Yes, but it was opened on cross because on redirect, the first redirect you brought it up.

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John Hayes, M.D. - Redirect

MR. WEINGLASS: No, I didn't complete my first redirect, I was cut off by lunch.

THE COURT: No, no, you are on your second redirect now when we broke for lunch, not your first. You are forgetting the scenario here. This is the second redirect.

MR. WEINGLASS: May I continue?

THE COURT: Yes, but the objection to that question is sustained.

BY MR. WEINGLASS:

Q. And what was the factual hypothesis?

MS. FISK: That was the objection, Your Honor.

THE COURT: That was sustained, Counselor. We have gone through that already. This is the second redirect. Please.

MR. WEINGLASS: Right.

BY MR. WEINGLASS:

Q. Were your answers that you gave here today, Dr. Hayes, hypothetical answers?

A. Umm, to which questions?

Q. To your expert opinions, were your expert opinions hypothetical?

A. No, they were not.

Q. Were your expert opinions based on a

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John Hayes, M.D. - Recross

reasonable degree of medical certainty?

A. Yes, they were.

Q. And were they based on your review of the written materials that were provided to you?

A. Yes, they were.

Q. Is there a difference between a working hypothesis and hypothetical answers?

A. A hypothetical answer -- I mean this is, I think, legal talk -- but a hypothetical answer I think... I'm really not sure how to answer that question, I'm sorry.

Q. Okay. In any event, what you testified to today as an expert has been in response to the working hypothesis of whether or not Mr. Jamal could have been shot by a falling Officer Faulkner?

A. That's correct.

MR. WEINGLASS: Nothing further.

- - - - -

RECROSS-EXAMINATION

- - - - -

BY MS. FISK:

Q. And so I understand your testimony, Doctor: Your answers which are not hypothetical include your opinion to a reasonable degree of medical certainty that Mr. Jamal could have been shot if, after he shot

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John Hayes, M.D. - Recross

Officer Faulkner from behind, Officer Faulkner spun around with his gun in hand and fired a shot at Mr. Jamal who was standing anywhere from a 30 to 45-degree angle from his waist before Officer Faulkner fell to the ground; is that correct?

MR. WEINGLASS: Objection. Objection. There's no record, there is no factual predicate for that question. If Counsel can cite Dr. Hayes --

THE COURT: Not on yours either, Counselor. The objection is overruled. I think he already answered but for one more time I will let him answer.

MR. WEINGLASS: That is a lay question without a factual reference to the record.

THE COURT: Frankly, I don't even know why we are so concerned about how he got shot, but go ahead. Go ahead, ask the question. Answer it and let's go.

MR. WEINGLASS: Now --

THE COURT: The objection is overruled. Please.

THE WITNESS: Your Honor, I am not quite clear on the difference between --

THE COURT: Well.

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John Hayes, M.D. - Recross

THE WITNESS: I don't quite understand the difference between a hypothesis and a hypothetical here.

BY MS. FISK:

Q. I will eliminate all those words. Is it your opinion that Mr. Jamal could have sustained the gunshot wound which he sustained in the following manner? And that is that he approached Officer Faulkner, fired a shot at Officer Faulkner in the back, that Officer Faulkner turned around with his gun in his hand and fired a shot at Mr. Jamal, who was standing and bent forward at the waist anywhere from 30 to 40 degrees, 30 to 45 degrees?

A. Well, Officer Faulkner was standing.

Q. Yes, sir?

A. And so Officer Faulkner was standing and Mr. Jamal would be bent over.

Q. From 30 to 45 degrees was your testimony; is that right?

A. Could be consistent with that.

Q. And by standing you mean not lying on the ground, and not in the process of falling; is that correct?

A. Standing.

MR. WEINGLASS: Objection: That

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John Hayes, M.D. - Recross

question is compound. I have no objection to ask while standing he means not falling.

BY MS. FISK:

Q. We have established, Doctor, that you mean by standing postures other than completely erect; is that correct?

A. You mean by standing vertically.

Q. Standing in an upright fashion?

A. Correct.

MS. FISK: Thank you, sir.

BY MR. WEINGLASS:

Q. But if he was falling --

THE COURT: All right, that's enough. We have gone through this too many times. That's finished.

BY MR. WEINGLASS:

Q. But if he was falling, Doctor --

THE COURT: Counselor, that is all. You won't have a third redirect. It is not a question of who has the last say here. You have gone over this ad infinitum.

MR. WEINGLASS: We brought the doctor back from lunch.

THE COURT: Yes, because she had not had a chance to cross on your second redirect.

Page 116.

This is the completion of the second redirect.

MS. FISK: I had advised Counsel prior to lunch that I had no objection to the doctor leaving and I had no further questions, but that's fine.

THE COURT: That is a different issue. The issue was you had not been given that opportunity. Doctor, you are excused. Thank you very much.

MR. WEINGLASS: Over the defense objection.

THE COURT: Sure. You paid for his lunch, what are you complaining about? Do we have any other witnesses for today?

MR. WEINGLASS: The other witnesses on our list included 11 witnesses whose subpoenas were quashed.

THE COURT: I know that, forget them. Do you have any witnesses here that you want to put on?

MR. WEINGLASS: Those are the witnesses we would have called.

THE COURT: Well, you would have

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called them long ago. But their subpoenas were quashed.

MR. WEINGLASS: No, Your Honor, they were on our list for Thursday and Friday. Today is Friday.

THE COURT: No, the only two you have on Friday, for today, was Dr. Hayes and Ward Churchill. Now you are telling me Ward Churchill is not here?

MR. WEINGLASS: Ward Churchill is in Colorado and he could be here if the Court permits him on Monday.

THE COURT: Well.

MS. FISK: That is a witness whose testimony we object to but we will take it up when he is presented.

THE COURT: Okay.

MS. FISK: Your Honor, I did advise --

THE COURT: Then you have no other witnesses for today?

MR. WEINGLASS: No.

MS. FISK: Your Honor, I previously advised Counsel, and I will make an issue of this, Counsel has on it's witness lists Mr. Joseph McGill, the prosecutor who handled

Page 118.

this trial. Because Mr. McGill has been advised that he is a potential defense witness he has remained available on call throughout the pendency of these proceedings. Mr. McGill is now an attorney in the private practice of law. He does not have the facility, Your Honor, to stay on call forever. He is available this afternoon. I would like word from the defense whether or not they are going to call him. If they are, he is available this afternoon. And obviously so is the Court. If he is not, Mr. McGill can be advised so he does not have to hold himself available.

(Discussion held off the record
between defense Counsel.)

MR. WEINGLASS: Your Honor, you will recall, and Counsel wasn't here yesterday afternoon --

MS. FISK: Indeed I was.

THE COURT: She was.

MR. WEINGLASS: I'm sorry. Mr. Grant agreed to a stipulation on the record so that three of the jurors who we wanted to call were excused.

THE COURT: I know, he said that

Page 119.

yesterday, Counselor. Counselor, will you stop rehashing old stuff.

MR. WEINGLASS: Right.

THE COURT: It is on the record already, I know about that. Now she says do you want to call Joe McGill.

MR. WEINGLASS: That was precisely what I am attempting to address. That precise question. And I would appreciate me being given the opportunity to address it.

THE COURT: Do you want him or don't you?

MR. WEINGLASS: I want to address that issue. Mr. McGill --

THE COURT: Do you want him or don't you want him?

MR. WEINGLASS: Mr. McGill was going to be called here for the following reason. He was going to be called to ask him questions pertaining to the jurors he struck and the representations made to the Supreme Court of Pennsylvania. We now have a stipulation in the record as of five o'clock yesterday, I believe, that the three jurors who he struck were all African American. With that representation in

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the record, we don't need the testimony of Mr. McGill.

MS. FISK: I would note, Your Honor, I will note if I am allowed, I would note however that Counsel did misrepresent the stipulation. The stipulation was that those three individuals would testify that they were the persons who were on that panel.

I will so advise Mr. McGill, Your Honor, that he is no longer considered a potential witness in this proceeding.

THE COURT: All right, fine. What do we have, then, for Monday?

MS. FISK: If the Court wants to save some time I have a Commonwealth witness who is available this afternoon if you would like to do that.

THE COURT: All right.

MS. FISK: He said he would be here, he thought he would be here around two o'clock. If they could find out.

THE COURT: Well, it almost two o'clock, but.

THE COURT OFFICER: Name?

MS. FISK: Lieutenant Sterling.

Page 121.

THE COURT OFFICER: Yes, he is here.

MS. FISK: It would be very brief, Your Honor.

THE COURT: Okay.