Verfahren gegen Mumia Abu-Jamal

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

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PCRA Hearing

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Monday, August 7, 1995
Courtroom 653, City Hall
Philadelphia, Pennsylvania

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BEFORE:   THE HONORABLE ALBERT F. SABO, J.

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TRANSCRIBED BY: CHARLES M. GORGOL
Official Court Reporter of the Court of Common Pleas

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ALSO PRESENT:

INDEX

WITNESS

Gina Furia, Esq.

By Ms. Fisk - 79

EXHIBITS

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(At l0:15 a.m. the hearing was convened in the
presence of the Court and the attorneys.)

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THE COURT: Good morning, everyone. I see that you have a petition here to bring in a prisoner from Pittsburgh. I don't see what they say, they talk in generalities.

MS. FISK: Now apparently the affidavit of the witness is missing from my copy.

THE COURT: I don't have any either, that's what I was looking for. Do you have an affidavit from this person?

(Discussion held off the record between defense Counsel.)

MS. WOLKENSTEIN: Your Honor, as I think the Court is aware, I went to S.C.I. Mercer to see this new potential witness. We had learned about him only a day or so before and I went to see him. I had a meeting with him that was cut short. I discussed with him what he saw. He indicated to me that he has information that is exculpatory, specifically

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that Mr. Jamal was not the shooter. And that somebody else shot this police officer.

THE COURT: Is he willing to testify as to what he saw?

MS. WOLKENSTEIN: He would testify as to what he saw.

THE COURT: In other words, he was saying he was there at the time?

MS. WOLKENSTEIN: Yes, he has told us that he is a witness.

THE COURT: Well, why don't you fill out an affidavit? If he can't sign it, you sign it.

MS. WOLKENSTEIN: Your Honor, Your Honor, it was not my understanding that was the procedure.

THE COURT: Yes, it is.

MS. WOLKENSTEIN: I'm sorry, Your Honor, I checked with local Counsel. In fact I was told that the normal thing was to simply come in and make a request. And the fact that we were doing this in writing was even much more formal than what is normally the practice in this Court.

THE COURT: Everything else you filed

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was by an affidavit either by the persons themselves or someone on your staff. So you talked to him, why don't you write out an affidavit.

MS. WOLKENSTEIN: I am happy to do a handwritten verification.

THE COURT: That's okay. I will be glad to bring him in, but you are going to have to sustain the cost.

MS. WOLKENSTEIN: Have to what?

THE COURT: You are going to have to pay the cost.

MS. WOLKENSTEIN: What does that mean, Your Honor?

THE COURT: You have to pay. Take it up with the Sheriff. I don't know what their costs are to go out there and bring them in. I suggest you talk to the Sheriff and find out what their cost will be.

MS. WOLKENSTEIN: The Court is requiring the Defendant to pay for bringing in a witness who is exculpatory during the course of this hearing?

THE COURT: Yes. Because you have the funds to do that.

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MS. WOLKENSTEIN: Your Honor, there is nothing on the record to indicate that we have the funds to do anything.

THE COURT: You are not Court appointed. You are privately retained.

MS. WOLKENSTEIN: Is this in some regulation that says that?

THE COURT: Yes, it is. It has been done. Talk to the Sheriff and he will explain it to you. Otherwise, I could have the prison itself bring him down but I don't know when they do that.

MS. WOLKENSTEIN: The prison would have to bring him down, there is no way we could bring him down.

THE COURT: I know that, I am not saying you personally. The Department of Corrections does make transfer of prisoners. I don't know when they will be doing that. I would have to call them and find out. In other words, if you don't want to pay the cost, if you don't want the Sheriff to run up there immediately and get him and bring him down here immediately for you, we could have him transferred by the State. You see, they make

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transfers every week. I just don't know. Years ago I know it was on a Wednesday but I'm not too sure what it is today, I would have to call them and find out. Do you know anything about that?

MS. FISK: Your Honor, upon receiving this petition this morning I did ask one of the Sheriffs who were present to check. My understanding is that the Sheriff does make regular visits to each of the State prisons.

THE COURT: This is something special. He wouldn't be making --

MS. FISK: I've asked them to check when the next regularly scheduled trip to this facility is.

THE COURT: That's why I say take it up with the Sheriff, they will let you know.

MS. WOLKENSTEIN: Your Honor, we will talk with them in the course of the morning or the lunch break.

THE COURT: Okay.

MS. WOLKENSTEIN: And I would renew the application.

THE COURT: I have it here, no problem.

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MS. WOLKENSTEIN: A continuance for enough time to bring him in here in whatever fashion that is.

THE COURT: Well, okay. In the meantime check it out and find out and let me know. Otherwise, I'll call the Sheriff when I get a chance if you want me to.

MS. WOLKENSTEIN: That's fine.

THE COURT: But get that affidavit together for the D.A. Any preliminary things that you have that are still in abeyance?

MR. WILLIAMS: Good morning, Your Honor.

THE COURT: Besides my stay order.

MR. WILLIAMS: Good morning, Your Honor.

THE COURT: Good morning.

MR. WILLIAMS: We have filed this morning and handed to Your Honor, to your law clerk, a courtesy copy of our Amended Petition and the motion attached to that Amended Petition. The motion for leave to file the Amended Petition. I just want to make clear for the Court that we have yet to receive the

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minutes for a proceeding in March 18th, 1982. We expect to receive that on Wednesday or Thursday. And we want to make clear that we reserve the right to then amend the Petition further if it's necessary. If upon reviewing the March 18th, 1982 transcripts there is matters of substance that bear upon any of the claims in the Petition.

The other thing, Your Honor, that we have filed is, pursuant to Your Honor's directive, we have provided the Court with a series of cases, photocopies of cases, that are applicable to various issues and controversies that have arisen during the course of the evidentiary portion of this hearing. And we attached a cover letter dated August 7th, 1995, filed that as well along with a courtesy copy to Your Honor.

And in order to proceed in a expeditious fashion, which we are all interested in doing, we have a lot of witnesses that are in abeyance at the moment and that's precisely why we've complied with Your Honor's directive. We've outlined in our letter what issues each case goes to and what witnesses are impacted by

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each of those cases. So we would need a ruling so as to determine which witnesses to prepare and proffer for the Court. In light of the fact that Your Honor has the photocopies of the applicable precedent.

And that's especially true, I'm informing the Court, of one of the witnesses: Savannah Davis. For internal logistical reasons we need a ruling for her. But actually we need a ruling for all of our witnesses. In order for us to be able to put the witnesses on in some kind of coherent fashion.

MR. BURNS: Your Honor, it is not clear whether Counsel is referring to exclusively witnesses who have had subpoenas quashed by the Court. And if so I think the Court has already ruled on that.

We just received this document this morning. We would like some time to have a look at it. Perhaps file a response if necessary. But I think we need a clarification as to whether the references are to people who have had their subpoenas quashed, people who have had their subpoenas quashed and additional witnesses who haven't yet been presented.

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THE COURT: Well, they have to be more specific. If it is not specific just let me know.

And I'm telling you, defense, to be as specific as possible.

So that you will know where they are going and what they hope to prove.

MR. WILLIAMS: I can enlighten Mr. Burns. I think the letter is very specific; and we are not seeking to re-adjudicate the quashed subpoenas, except I think for one exception and that is on the issue of the jury, the jury pool. That entails calling the Commissioner of Jurors, which I believe the Court has quashed that subpoena. If I'm not mistaken. If I am the record will correct me.

THE COURT: That's right, yes, I have.

MR. WILLIAMS: And Judge Ribner. Other than that, all of the other witnesses that are addressed in this letter are witnesses that Your Honor has held in abeyance pursuant --

THE COURT: Until you specified which witness you are talking about.

MR. WILLIAMS: Exactly.

THE COURT: He says in the letter,

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Counselor, that he has specified which witnesses he is talking about.

MR. BURNS: Well, for instance, there are certain references to police officers. They were subpoenaed.

THE COURT: He has to be more specific than that.

MR. BURNS: Their subpoenas were quashed. They were specifically mentioned in the letter which, as I said, we just received this morning.

THE COURT: Well, you look it over and if you think it's not specific enough for you to answer it, just let me know.

MR. BURNS: I am sure the letter is specific enough so that we could answer it. Is Counsel saying that they have other witnesses that they are presenting now?

THE COURT: Oh, I don't know. They don't take me into their confidence, I don't know. They would have to tell you that.

MR. WILLIAMS: What we have done, Your Honor, is one of the witnesses -- and we regard this as a crucial witness on several of our Constitutional claims -- that we've not yet

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proffered but we took the liberty of mentioning that witness in this letter. And I am referring for Mr. Burns' benefit as well as for the Court's, the proffered testimony of Dr. John Lambert, a psychology professor here at Temple University. He is relevant to three of our Constitutional claims relating to Jury matters. And on page 10 and page 11 of our letter we set forth precisely what he would testify to.

THE COURT: Yes, I know that, but are you saying that somehow the trial attorney was ineffective for not doing something?

MR. WILLIAMS: No, those are not, Dr. Lambert will not testify on the ineffectiveness claim except as to the impact of the failure to present mitigation witnesses. That is one prong of his testimony. The other two prongs --

THE COURT: Well, I will let the D.A. answer it. If you answer it I will look at it.

MR. BURNS: As Your Honor knows, it is well established that expert testimony, or so-called expert testimony, is inadmissible on the question of whether or not an attorney was ineffective. That is a question for the Court. The Court is the expert in that area. As to

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whether or not evidence was to have a greater or lesser impact on the jury, that too is an area in which the Supreme Court has repeatedly held that expert testimony is inadmissible because it is the jury's sole and exclusive function to determine what weight evidence is going to have. The jury is not permitted to be contaminated by expert testimony in this area.

Furthermore, the Supreme Court has held that the jury does not require the assistance of an expert witness in order to determine what weight to give evidence.

MR. WILLIAMS: Your Honor, let me just address what Mr. Burns has just noted.

THE COURT: Do you have cases on that?

MR. BURNS: I do, Your Honor. I will hand them up now.

THE COURT: Okay, and you have contra cases on that?

MR. WILLIAMS: We do.

THE COURT: Okay, then submit it and I will read it.

MR. WILLIAMS: Let me just be clear on this because I am now apprised of their position for Your Honor's benefit. On the issue of the

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mitigation witnesses, we are not asking the Court to consider expert testimony on the first prong of the Strickland test, which is whether counsel is, counsel's performance was objectively deficient. We agree with Mr. Burns and the Commonwealth that expert testimony on that question is not allowed, that Your Honor under the case law is competent to consider the objective unreasonableness of Mr. Jackson's performance.

However, on the Issue of the prejudicial impact of that deficient performance, expert testimony is allowed and has been allowed by many courts.

THE COURT: Well, are you saying I need that expert to tell me something?

MR. WILLIAMS: To assist you on the prejudicial impact question, yes.

THE COURT: I don't think I need an expert to tell me that.

MR. WILLIAMS: Well, I think whether you need --

THE COURT: But I will let you present any case that you have on the issue. I will be glad to read it.

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MR. WILLIAMS: Very well.

MR. BURNS: Cases we have introduced, Your Honor, have to do with whether or not an expert can testify as to credibility. Which of course is the question of weight. That largely being the area which the cases talk about. There's also the fact that experts are unnecessary in the area of determining what weight a jury is going to give whatever evidence they are presented. And this is of course a feature of Pennsylvania law. I'm sure Counsel may be able to find cases from other states in which courts reached different conclusions. In Pennsylvania this kind of evidence is not admissible.

MR. WILLIAMS: Nonetheless, I think the case law as well as our submissions and Mr. Burns' submissions speak for themselves and we proffer them for the Court's consideration.

MR. BURNS: Just as an addition, Your Honor: The defense offer says that Dr. Lambert would also testify that jurors harbor the misconception that life imprisonment means incarceration for 12 years. That is a fact question.

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MR. WILLIAMS: Well, he has done studies in Philadelphia with Philadelphia capital jurors. And as I understand it, he had the imprimatur of Judge Jackson here in Philadelphia. He is a Temple University professor. We are not talking about somebody who has done research in Los Angeles.

THE COURT: We are talking about 1982.

MR. BURNS: And what this particular Jury understood.

THE COURT: That's right, we are talking about 1982, we are not talking about 1995.

MR. WILLIAMS: And he will not comment about the jurors' understandings at this juncture in history. But he will be able to comment on jurors' understanding of what life imprisonment meant at the relevant time period. And that's why we proffer him.

THE COURT: What do you think it meant?

MR. WILLIAMS: I'm sorry?

THE COURT: What do you think it meant?

MR. WILLIAMS: That life -- well, as a

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lawyer I have an understanding of what life imprisonment means.

THE COURT: Yes.

MR. WILLIAMS: The question is what do 12 lay people --

THE COURT: What do you think it means?

MR. WILLIAMS: What do I think it means?

THE COURT: Yes.

MR. WILLIAMS: Well, in New York City life imprisonment --

THE COURT: I am not talking about New York City. We are in Pennsylvania.

MR. WILLIAMS: You are asking a lawyer to comment on a legal concept of life imprisonment. I look at a statute. Lay people hear life imprisonment and they have understandings that are colored by the media, by what they read.

THE COURT: Are you saying, then, that Jackson was ineffective for not asking for some detailed explanation of what life imprisonment meant?

MR. WILLIAMS: Well, we do make

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that --

THE COURT: In 1982.

MR. WILLIAMS: We make that argument, among others.

THE COURT: You could ask. You didn't ask Jackson that question.

MR. WILLIAMS: I'm sorry?

THE COURT: You didn't ask Jackson that question.

MR. WILLIAMS: We also raised, I think it is in claim 15.

THE COURT: Counselor, we could stay here and argue forever. I don't have time to read all this material you are giving me. Give me any cases you have on it, I will be glad to read it.

MR. WILLIAMS: Your Honor, we have done so, it is attachments to our letter.

THE COURT: Okay, I will read it. I will read it and then I'll be able to better understand it. If you have any additional cases, though, one way or the other, submit them.

MR. WILLIAMS: Is Your Honor in a position to rule on any of the other witnesses

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for which we have attached cases?

THE COURT: Well, how am I going to do that? I haven't even read your cases. You waited until now to give it to me this morning and you think I could read through all of that that you have there in 10 seconds?

MR. WILLIAMS: No.

THE COURT: 20 seconds?

MR. WILLIAMS: I am not suggesting that at all.

THE COURT: Well, okay, let me read it, Counselor, then I will be in a better position to answer your questions. I can't answer them now. You just handed them to me. You should have given it to me long ago. Long ago.

MR. WILLIAMS: Your Honor asked for these cases last week.

THE COURT: I know, I asked for them long ago. I said if you did your job properly you would have had these cases available to me at the time you wanted to present these witnesses and handed it up and I could have read it. But you gave me a whole big bundle now and you are going to have me read through all of

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that. I don't know what you have there.

MR. WILLIAMS: That's because Your Honor ruled in quashing the subpoenas on Thursday.

THE COURT: I cautioned you in the very beginning, let all this stuff out that you say that you have.

MR. WILLIAMS: It is laid out here.

THE COURT: I know that, but you are just giving it to me this morning. What do you think I am?

MR. WILLIAMS: That's because you quashed the subpoenas on Thursday.

THE COURT: Well, sure I quashed them long ago. And I'm still quashing them. But that's not the point. You are asking me to read through that stuff. And I'll read through it but give me time to read through it.

MS. FISK: Your Honor, we would also request an opportunity to review, we have not even finished reading the documents handed to us this morning by Counsel.

I would also note for the information of the Court and Counsel, in response to my request to the Sheriffs, I'm advised that the

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trip, the scheduled Sheriff's trip to the State Correctional Institution at Mercer is a scheduled two-day trip.

THE COURT: When they --

MS. FISK: Yes, I am advised that the Sheriff's Department is scheduled to go to Mercer tomorrow and that the witness could be picked up Wednesday to be available for Court on Thursday. And if he is sought by the defense, they need to provide his name and state number to the Sheriff's Department as soon as possible. They will need a writ from this Court to permit the Sheriffs to transport him but he could not been here --

THE COURT: You have a number here: CK2563.

MS. FISK: That information will need to be given to the Sheriffs. My understanding is that this Court will have to sign a writ but the witness in the ordinary course of the Sheriff's duties could be presented to the Court not before Thursday.

THE COURT: On Thursday.

MS. FISK: Yes, that is my understanding from the Sheriffs.

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THE COURT: Okay.

MR. WILLIAMS: In light of Miss Fisk's information, I propose the following. Because we are all under enormous time pressure as well as just the nature of the case, I propose that, to give Your Honor the benefit to read through a voluminous submission, there be a continuance.

THE COURT: We are only talking about this guy, I could have him in here by Thursday.

MR. WILLIAMS: Fine, we would ask for a continuance while we await this witnesses' appearance.

THE COURT: No, because we may have somebody else you could put on.

MR. WILLIAMS: That's what this submission is all about. And Your Honor would then be given --

THE COURT: I am saying, you have no additional witnesses to present? Is that what you are saying?

MR. WILLIAMS: I am not saying that.

THE COURT: Well, then say something that the Court could understand where you are going.

MR. WILLIAMS: The witnesses that are

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the subject of this submission are covered by the parameters of the evidence that we submitted thus far.

THE COURT: I know that. I understand that.

MR. WILLIAMS: We are talking about a way of presenting our evidence in a coherent fashion.

THE COURT: Well, all I am asking you: Do you have any new witnesses other than the ones that you are hoping to bring in after I read all of this material that you are giving me? If you have any, would you please give the District Attorney notice of who they are together with an affidavit as to what they are going to say so that they could be prepared to go through with that witness, whoever that witness may be?

MR. WILLIAMS: (Handing) I have just served and handed up to the Court a list of witnesses pursuant to Your Honor's directive. But I think the point still remains that --

THE COURT: Well, Counselor, is this the list that you are talking about?

MR. WILLIAMS: This is the list of

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witnesses that are not engraved by our submission (displaying).

THE COURT: I know, but you have FBI documents. How are we going to put the documents on the witness stand?

MR. WILLIAMS: Well, we have a, they are authenticated by the FBI. And if the Court requires we'll have an authentication witness. Nonetheless, we do have an authenticating document to authenticate these FBI exhibits.

THE COURT: Well, what's the relevancy of it? We are here on a murder case. I'm not here to decide what the FBI did or whether it was proper or whether it was improper, or whatever it was. What does that have to do with the murder case here of this officer?

MR. WILLIAMS: I could only tell the Court we addressed that in our Petition, our Amended Petition, and in the written letter.

THE COURT: I know that.

MR. WILLIAMS: The submission we have given the Court today.

THE COURT: I know, but the D.A.'s answer says it's not relevant.

MR. WILLIAMS: Yes, but there are two

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sides to this litigation. They say it's not relevant.

THE COURT: They are one side. The question is who shot and killed Officer Faulkner. That's the only issue here. You say that the Defendant didn't shoot him, that he's innocent. I say to you fine, you've said that to the news media plenty of times. You said you had plenty of witnesses to prove it. Well, bring those witnesses in. FBI documents are not going to tell us who killed Officer Faulkner.

MR. WILLIAMS: Your Honor is suggesting that without having read the documents or having heard any evidence concerning the documents.

THE COURT: Well, you tell me how it's relevant? I don't know how it's relevant. What is the relevancy of those documents, or what the FBI did? Let's say the FBI had him under surveillance for years. So what?

MR. WILLIAMS: Well, it raises two, it addresses two issues.

THE COURT: What's that?

MR. WILLIAMS: The first issue -- and I will go with the penalty phase issue first.

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The FBI documents reveal that Mr. Jamal was under intensive surveillance for several years. During that, that time frame when he was under surveillance, the FBI and local law enforcement never discovered that he engaged in any kind of criminality or he was never convicted.

THE COURT: I know. The Jury knew that. Nobody brought anything in here that said he committed any prior crimes.

MR. WILLIAMS: I will tell you why the Jury should have heard about the surveillance. It is one thing for the jury to hear that a person has no criminal history. It's quite another to say he has an unblemished criminal history and he's been surveilled by law enforcement.

THE COURT: Well, you show me a case that says that, Counselor. Show me a case. Xerox the case and give it to me that says that, okay.

MS. WOLKENSTEIN: Kyles V Whitley, Your Honor, which is attached to the documents that you've been, that you've been handed, deals with all Brady questions. And one of the Brady questions gone into in the Kyles case, a recent

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Supreme Court decision, is the question of bias in the prosecution. Bias in the police investigation. What these FBI files show is that the Philadelphia Police Department, we are submitting them because they indicate the activity of the Philadelphia Police Department in surveilling Mr. Jamal around the clock from a period of 1968 now through 19, the 19, early 1980's. The point of this is that there has been intensive activity, intensive bias against Mr. Jamal. Because all these files show is that he engaged in political activities, speech and association, but nonetheless it made him a subject of massive surveillance, eavesdropping, attempts to frame him up on other charges, including another murder charge.

THE COURT: Their police investigation didn't help any, because if it had he wouldn't have been able to shoot Officer Faulkner.

MR. BURNS: The problem we have here is one of laying a foundation.

MS. WOLKENSTEIN: The fact is it lays the question of whether or not there is information in the police files that Mr. Jamal did not shoot this officer.

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THE COURT: Submit a case.

MR. WILLIAMS: We have submitted a case: Exhibit V, Spaziano versus Florida is the case we are referring to.

THE COURT: Okay, I will read the cases, Counsel.

MR. WILLIAMS: What troubles us, Your Honor, is that you seem --

THE COURT: I want to hear what is the position of the District Attorney's Office in this.

MR. BURNS: Thank you, Your Honor. Your Honor, Counsel have made, not for the first time, a number of factual statements about police surveillance, about an FBI conspiracy. And what they offer to do is put documents into the record without any kind of foundation. They don't want to produce any evidence saying that any of the specific officers were involved in this case. Or were somehow cognizant of the alleged information in the FBI documents. Your Honor, what they need to do is put on a witness to testify to some sort of fact that would establish a foundation for talking about FBI documents.

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This was a murder case that happened in Philadelphia, that was investigated by specific officers of the Philadelphia Police Department. And absent some showing that any of these officers were aware of the alleged information that exists or purportedly is shown from these documents, there is no basis for introducing the documents. And of course there is no way to introduce the documents without a witness who will testify as to how they pertain to the case. So we are just running around in circles here. The defense assumes that something is true, and then they would like to put evidence in and put witnesses on to talk about it as though it was true without actually proving that it's true.

THE COURT: All right. Whatever cases you can give me on it I will be glad to read the cases. In the meantime, I will take it under advisement.

MR. WILLIAMS: For the benefit of the Court and for the Commonwealth, I would, I am serving on the Court a letter dated August 3rd, 1995 from the United States Department of Justice, the Federal Bureau of Investigation,

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which authenticates our proffered exhibits. And I would like to make this part of the Court file, Your Honor.

THE COURT: Yes, I know. I am telling you, give me cases that say it's admissible and what's the value of it.

MR. WILLIAMS: I am asking the Court to look at Exhibit V: Spaziano versus Florida.

THE COURT: I know. If you gave me a case I will read it. Is that for me?

THE COURT OFFICER: D-24, sir.

(Letter was marked Defense Exhibit D-24 for identification.)

MR. WILLIAMS: D-24.

MS. WOLKENSTEIN: D-24.

THE COURT: Is that for me?

MS. WOLKENSTEIN: Yes, Your Honor. As D-25 we have the FBI files here. We have 600 pages that have been authenticated by the FBI that I want to submit into evidence as well.

MR. BURNS: We object to that, Your Honor.

THE COURT: Okay, I will take it under advisement.

MS. WOLKENSTEIN: Okay.

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MR. BURNS: As to the additional witnesses on the list, Your Honor, we would like to have some kind of offer of proof. We would like to have the offer of proof in writing for the witness they will bring in from Mercer in the absence of an affidavit.

THE COURT: Somebody has to present an affidavit of some sort.

MR. BURNS: We would also like an offer of proof as to all of these witnesses on this handwritten list which we obtained five minutes ago.

THE COURT: I know, that's what I asked them to do.

MS. WOLKENSTEIN: Ward Churchill is a witness we have raised several times.

THE COURT: Put it in writing.

MS. WOLKENSTEIN: It is in writing. It was submitted several days ago in writing.

MS. FISK: Ward Churchill is a witness we have been given a one or two-sentence review of which we have advised the Court that we would object to at such time as he is called. We are advised that he is an expert in the field of domestic surveillance who was going to proffer

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testimony regarding the relationship between Federal, State and City undercover surveillance.

MR. BURNS: This is the same situation as before. The witness is going to talk about something that doesn't exist. He is going to talk about something that the defense assumes is true without actually having any foundation evidence to prove it is true in the first place. He will just talk about this fantasy scenario.

MS. WOLKENSTEIN: Your Honor, we have 600 pages from the FBI that in every single page documents the truth, the truth that the police worked hand in hand with the FBI here.

THE COURT: Counselor, you are proceeding under a PCRA statute. Show me the relevancy of that to this proceeding, okay.

MS. WOLKENSTEIN: Brady. Brady, Your Honor.

THE COURT: Oh, Brady. Okay.

MS. WOLKENSTEIN: And the prosecution has admitted that Brady is applicable to this proceeding.

THE COURT: Give me case, will you please. Xerox a case for me.

MS. WOLKENSTEIN: It has been done.

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MS. FISK: I would note, however, Your Honor, that my understanding of Brady is that it applies to documents which are wholly within the control of the Commonwealth which the Commonwealth fails to provide. It appears to me that the 600 pages of documents are currently sitting in front of Miss Wolkenstein, who is, or is attempting to provide them to the Court. They are apparently documents which the defense has been able to obtain on it's own through it's own request or subpoena. And therefore I presume they are available and have been available to the defense. Brady does not cover those kinds of documents.

MS. WOLKENSTEIN: Your Honor, I am glad Counsel raised this. What this goes to is the fact that our subpoenas for the Police Department records have been quashed. And we believe these documents establish absolutely that the Philadelphia Police Department maintained records that were under the control of the Police Department and of the Commonwealth during the time of this prosecution. Those records should have been turned over to the defense as Brady material. They show both bias

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and, as was also gone into, they also show mitigation. That is the proof.

THE COURT: Counselor.

MS. WOLKENSTEIN: That is the purpose of these FBI files.

THE COURT: Okay, give me some cases on it and I will read it and make's second decision.

MS. WOLKENSTEIN: As indicated, they are also in Your Honor's possession, several times over.

THE COURT: Not several times over, I just got it this morning.

MR. WEINGLASS: Your Honor, with respect to an unrelated matter: Present in Court this morning from Chicago is the Reverend Jesse Jackson.

THE COURT: All right. Counselor, why don't you save that for the news media outside. Unless he has something to offer this Court.

MR. WEINGLASS: Yes, I want to make a request of the Court. Reverend Jackson is here to offer counsel to Mr. Jamal. Your Honor knows an execution date is set 10 days from today.

THE COURT: I am going to take that up

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today. Go ahead.

MR. WEINGLASS: I'm sorry?

THE COURT: I am going to take that issue up today.

MR. WEINGLASS: Okay. Would the Court order the opportunity for the Reverend Jackson to meet with Mr. Jamal during a break that we have today? Without interrupting the proceedings of the Court.

THE COURT: Counselor, you have to take that up with the Sheriff. The Defendant is not in my custody. He is only in my custody when he is in this Courtroom. The rest of the time he is in the custody either of the State Correctional Department or the Sheriff. Take that issue up with the Sheriff or the State Correctional Department. It's not for me to order the Sheriff to do anything.

MR. WEINGLASS: Well, the Sheriffs, as I understand it, will follow the orders of this Court. If the Court requests it I am sure the Sheriffs will see to it that it can happen.

THE COURT: Why don't you go to the Sheriff and ask him. And let him deny it and then come back and see me, okay.

Page 37.

MR. WEINGLASS: Well, Your Honor, Reverend Jackson is here from Chicago and we don't have that much time.

THE COURT: Counselor, I will be here all day long. So what I am saying to you: Please go to the Sheriff first and ask him. If he allows it he allows it. If he doesn't then come back to me. We already had this spiritual advisor thing decided and you know that the State Correctional Department took the position that I was wrong in ordering them to do something. And you agreed with them and you entered into an agreement. And whatever agreement you entered into is fine, I have no objection to that. Take it up with the Sheriff. Let's give the Sheriff an opportunity before we jump to conclusions.

MR. WEINGLASS: May I have five minutes so that I can confer with the Sheriff and report back? Reverend Jackson has a busy schedule. He has come here, it is a specific mission.

THE COURT: I know that.

MR. WEINGLASS: I just want five minutes to talk to the Sheriff's personnel to

Page 38.

see that this is resolved.

THE COURT: Not the personnel, talk to the Sheriff. He is down on the third floor.

MR. WEINGLASS: I would be pleased to go down there if the Court would give me just a few minutes.

THE COURT: Why don't you wait until we finish up what we are going to do today. I am trying to find out where we are going.

MR. WEINGLASS: Well, we have a witness. We have a witness here, I'm told. And the witness will testify.

THE COURT: What witness is that?

MR. WEINGLASS: Who is that?

THE COURT: Pardon? Who is that?

MR. WEINGLASS: Sharon Greely Smith.

MS. FISK: We have no offer of proof with regard to that witness, as I understand it.

THE COURT: They don't know a thing about this. This is what I keep telling you. Give them notice and give them an affidavit or a statement or something so they know what you are going to do. That's what I have been telling you from the very beginning. But you have been ignoring that. So I don't know that you have

Page 39.

anybody to testify today.

MR. WEINGLASS: We do.

THE COURT: Well, give them the information first.

MR. WEINGLASS: They have been given the list.

MS. FISK: We received that five minute ago, Your Honor. And we have not yet received an offer of proof with regard to Sharon Smith, Vernon Jones and C --

THE COURT: All right, I will hold it in abeyance until you get that information.

MR. WEINGLASS: In five minutes we could give them all the information. We will be glad to confer with Counsel. If the Court will give us just a few minutes we can settle this whole thing of their not being prepared. We are all under pressure.

MR. BURNS: I object to that characterization. We got this handwritten list 10 minutes ago and he is saying we weren't prepared for a witness when we don't know who they are or what they are going to say. It is a little silly, a little facile.

MR. WEINGLASS: We got their response

Page 40.

at two o'clock and we were told to proceed the next morning at 9:00. Their response was over 40 pages and we had to be ready to go the next morning. Something which the Pennsylvania Supreme Court found to be egregious.

THE COURT: No, they didn't. They didn't.

MR. WEINGLASS: They stopped this Court.

THE COURT: No, no, no, you keep forgetting what they said. You wanted until August 1st and I wanted you to go on July, I forget the date, but immediately. They cut it in half and they said start on the 26th of July. So we started on the 26th of July, okay.

MR. WEINGLASS: After Your Honor wanted to start on the 18th they said no.

MS. FISK: We have been over this, Your Honor, at least five times in the last two days. May I ask if we could have an offer of proof?

MR. BURNS: On the record.

MS. FISK: For Sharon Smith on the record so we could know whether or not this is a witness that could be proffered.

Page 41.

MR. WEINGLASS: Could we have just the five minutes to make the offers to Counsel directly, to confer with the Sheriff, so that the Reverend Jackson could be admitted and then be on his way?

THE COURT: Well, the thing is he won't be able to see him until we break because he is going to have to go back upstairs.

MR. WEINGLASS: I agree. But we have to get the permission so that the Reverend will stay here for the break. I'm not asking to interrupt the Court's time for that.

THE COURT: Well, it is going to interrupt it because it will take time for him to go back up for the interview, whatever it is going to be. I have no objection to it.

MR. WEINGLASS: It is the lunch hour.

THE COURT: It is not lunch, it is eleven o'clock.

MR. WEINGLASS: No, I mean, okay, at that point.

THE COURT: It is eleven o'clock, you are asking me to break now.

MR. WEINGLASS: Just for a few minutes.

Page 42.

THE COURT: You just want to ask the Sheriff if he could see him in the lunch hour?

MR. WEINGLASS: Yes.

THE COURT: At the lunch hour.

MR. WEINGLASS: Yes.

THE COURT: Okay I we will take a short recess while he calls the Sheriff. Call him on the phone back there if you want. Or if you want to go downstairs and see him it's perfectly all right. But I don't know how you are going to do it in five minutes.

MS. FISK: I assume there is someone who could provide us with the offer of proof during the same period of time.

MR. BURNS: I would like the offer of proof to be on the record because if we have any objection we will just have to put it on all over again when we're done.

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

THE COURT: Do you want to use the phone back there.

MR. WEINGLASS: Fine.

THE COURT: Okay, we will take a short recess.

Page 43.

THE COURT OFFICER: This Court will take a short recess.

- - - - -

(Brief recess.)

- - - - -

THE COURT: I understand the Sheriff agreed to let him see him?

MR. WEINGLASS: Yes, Your Honor. I've had a conversation with the Sheriff and the Sheriff has agreed to make a room available at twelve o'clock for purposes of having a consultation.

THE COURT: Okay.

MR. WEINGLASS: Thank you, Your Honor.

MS. FISK: Your Honor, with regard to the offer of proof regarding this Ms. Smith: I have been advised that Ms. Smith is being offered to the Court for two purposes. It is being alleged that she apparently is a witness who on the morning of December the 9th, 1981 heard gunshots, looked out a window and saw police officers beating up a black man severely. And this is being offered to show bias in the investigation on the course of the police. I would argue first that this is, this does not

Page 44.

show bias in the investigation. There was evidence proffered at trial by Mr. Jackson through cross-examination as well as through direct witnesses alleging that Mr. Jamal was beaten. This is evidence which was presented to the Jury and that portion of Ms. Smith's testimony presents nothing new that was not presented at time of trial.

In addition, it is being alleged that Ms. Smith would testify that she knows a street vendor who used to hang out in the intersection near where Officer Faulkner was shot. It is alleged by the defense that this is the same street vendor that Mr. Greer the investigator referred to as being the priest whom he knew who hung out at that intersection. And Ms. Smith would testify that said person has been conspicuously absent since this incident. It is alleged by defense that this offer goes to the claim of actual innocence because it is possible, I'm advised, that that person, since he hasn't been there since that might, might in fact be the actual shooter.

With regard to that allegation, first, that is mere supposition and does not come near

Page 45.

to the standard required of the defense at the Post-Conviction Relief Act stage.

Secondly, there has never been any affidavit signed by this woman that has been provided to the Commonwealth.

And third, with regard to both of these claims, there is absolutely no allegation that, A, she was unavailable at time of trial and is after-discovered; or she was available at time of trial and that Mr. Jackson did not have a legal or a rational strategy basis for not calling her. I note that Mr. Jackson was not questioned, as I understand it, with regard to whether or not he knew about this witness and why he failed to call her.

For all those reasons there is currently not sufficient notice and there is absolutely no adequate basis on the record which would permit defense to present this testimony.

THE COURT: Well, I will delay ruling on that pending further research by the defense team. I don't know what, get some affidavit or something in here or do whatever you have to do to fit it within the PCRA statute. At the present time, it's not of any use to the Court.

Page 46.

MR. WILLIAMS: Your Honor, I would then direct Your Honor's attention to exhibit A in our letter submission to the Court: Kyles versus Whitley. And the issue of actual innocence is addressed in the PCRA explicitly. And we invoke that.

THE COURT: Did she sign that affidavit?

MR. WILLIAMS: I'm sorry?

THE COURT: Did she sign that affidavit?

MS. FISK: There is no reference to this witness anywhere in the affidavit so far as I am aware.

MR. WILLIAMS: Precisely, because she is newly discovered and she would testify --

Page 79.

Gina Furia, Esq.

they have always been and they were available. They have been obtained by your clerk. I understand that your clerk is available to provide testimony if that is needed but that she was able to find them at the luncheon recess where she had seen them some two-and-a-half or three weeks ago. And apparently those are available.

THE COURT: Do you want to put on the record whatever you did, Gina, please. Do you want her to take the stand? I don't care. Either.

MS. FISK: I wasn't calling her as a witness, Your Honor, but fine.

- - - - -

Gina Furia, Esquire, having been duly
sworn, was examined and testified as follows:

- - - - -

BY MS. FISK:

Q. Would you please explain for the record whether you have in fact found the photographs that were introduced at trial and if so where you have located them?

A. The photographs called Commonwealth versus Mumia Abu-Jamal a/k/a Wesley Cook, were found

Page 80.

Gina Furia, Esq.

upstairs in Room 788, the PCRA unit, where they have been for the last three weeks at least. I saw them there when I reviewed the file several weeks ago. I brought this to the attention of Detective Walsh. I told him to please tell the Defendant's, or the defense team to look in 788, in order not to get involved with either side of the case. I was informed in Court he did tell them to look in 788.

I spoke with Miss Wolkenstein during our break and indicated that she should probably look in 788. She told me she did. I went up at lunch and the pictures were there.

MS. WOLKENSTEIN: Do you want my testimony now, Your Honor? I don't think it's necessary. I just want to indicate thank you very much for finding them. What we need to do is get copies of them made. We will do whatever is necessary to secure copies of them, as opposed to simply Xeroxes, which are absolutely unusable.

MS. FISK: Your Honor, this evidence, as with all the others, will be placed into the custody of Detective Walsh who has been acting as liaison with regard to defense access to all --

Page 81.

Gina Furia, Esq.

MS. WOLKENSTEIN: Why weren't they in the custody of Detective Walsh when I went to the evidence room when I wanted to see them? You can't have it both ways.

THE COURT: You should have taken the advice of my law clerk when she told you where to go.

MS. WOLKENSTEIN: No, she didn't, Your Honor.

THE COURT: You did? As a matter of fact, what did she say to you when you told them?

THE WITNESS: That somebody had gone to look for them but they were not there.

THE COURT: Okay.

MS. WOLKENSTEIN: I was told by Detective Walsh that they were not findable and that there was proofs. That is the last conversation I had with Detective Walsh except for him telling me to talk to the District Attorney's Office. Now, we could each get sworn on this. I don't really think this is necessary.

THE COURT: I don't think it is necessary either.

Page 82.

MS. WOLKENSTEIN: Right.

THE COURT: My law clerk was able to get them for you. We will turn them over to Detective Walsh. They will be in his custody. And make arrangements to see them or do whatever you want with them.

MS. WOLKENSTEIN: I would like copies of them.

THE COURT: Detective Walsh will make copies for you. I don't know, I assume.

MS. WOLKENSTEIN: Thank you very much, Detective Walsh.

Is there any objection to copies being made from the District Attorney's Office or from Detective Walsh?

THE COURT: I don't care who makes copies of them, to tell you the truth. They are here, we found them for you. Give them to the detective, they will be in his custody. Because I have to have somebody who is going to be responsible for all this evidence.

MS. WOLKENSTEIN: Okay, I trust the Court has no objection to copies being made.

THE COURT: No, you could go, you could get your copier, in his preference you

Page 83.

could make copies.

MS. WOLKENSTEIN: I need copies, Xeroxes of the photographs just simply done --

THE COURT: Well, I don't know if he could make copies of that. You talk to him about it. I'm not here to do these things. I gave it to him. Get in touch with him and see if you could work out whatever you have to work out, okay.

Anything else we have to take of outside of that? I don't see anything else.

How about the list of the names for tomorrow, do you have any?

MR. WEINGLASS: We will provide that.

THE COURT: When, tomorrow morning?

MR. WEINGLASS: They will be provided tomorrow morning.

THE COURT: No, that's too late. That's what I am trying to tell you. Do it now.

MR. WEINGLASS: Your Honor, today we had Dr. Lambert, Ward Churchill, Dr. Honts, Sharon Smith. They have all been eliminated.

THE COURT: Yes, because you didn't follow my instructions to let us know in advance who you're calling.

Page 84.

MR. WEINGLASS: Well, we did.

THE COURT: No, you didn't, Counselor. Don't tell me you did. You didn't.

MR. WEINGLASS: Ward Churchill was on that last list for three days. He was on the list for Thursday. He was on the list for Friday.

THE COURT: When did you hand this to the D.A.'s Office? Just a while ago.

MS. WOLKENSTEIN: Wednesday.

MR. WEINGLASS: Wednesday.

MS. WOLKENSTEIN: Those names were on Wednesday.

THE COURT: I am talking about the affidavit.

MS. WOLKENSTEIN: Along with offers of proof. Very similar to the District Attorney's Office.

THE COURT: So she could now argue whether or not this is a permissible witness. That's why I am telling you to do it in advance. You are going to wait until tomorrow morning. I could see we are not going to do much tomorrow either. You should do that today. File it today so that she knows. When she comes in

Page 85.

tomorrow morning she could argue whatever she wants. Or be prepared to cross-examine whatever witness the Court allows you to present. I don't know what their position is. So give her the list today. And attach the affidavits or whatever you have to attach to it. Will you get it to her today?

MR. WEINGLASS: We'll do our best.

THE COURT: Okay.

MS. FISK: Your Honor, it might be, in light of the fact that Mr. Harmon is not going to be available until Thursday, and we have not received what we consider to be timely notice of any additional witnesses, that a recess might be in order for a day.

THE COURT: You mean until when? Today is Monday.

MS. FISK: Perhaps until Thursday, or until Wednesday if we could be given a list tomorrow for witnesses being proffered for Wednesday.

MR. WEINGLASS: It's possible. Also, we are getting the transcript of the pre-trial hearing of March 18th on Wednesday. That will be of assistance to us.

Page 86.

THE COURT: Well, we will adjourn, then, until tomorrow to wait for the list. And then see who is going to testify on Wednesday. Because you know the other one will be available on Thursday.

But where is that writ for him? Is this it?

THE COURT CLERK: I have it.

THE COURT: You prepared a writ?

THE COURT CLERK: I have two.

MR. BURNS: I understand, Your Honor, that we will receive a list of witnesses tomorrow for Wednesday?

THE COURT: Tomorrow, as I understand it, because he doesn't have it today, so.

MR. BURNS: Tomorrow morning specifically, Your Honor?

(Pause.)

THE COURT: We're going to need a commit for this witness for Graterford.

THE COURT CLERK: We do get the commit, you don't have to sign that.

THE COURT: And a bringup.

THE COURT CLERK: Yes.

THE COURT: It's not necessary for

Page 87.

civilian clothes but if he's got them it's all right. If he doesn't it's okay too. I don't care, there is no jury here.

All right, then we will adjourn until tomorrow. Have your list prepared, please, so that she can argue.

MR. WEINGLASS: I thought Counsel had asked that we adjourn tomorrow and meet on Wednesday.

THE COURT: No, we adjourn until tomorrow so that you could give them the list and we decide which ones are to be called on Wednesday. And which ones you are going to call -- well, Thursday we are going to allocate, I guess, to Mr. Harmon.

MR. BURNS: May it please the Court: It is probably not necessary for us to gather here tomorrow just for defense Counsel to present us with a list. I think it would be satisfactory, if it please the Court, for the defense to convey the list to us out of Court. As long as it arrives in the morning. And that we reconvene on Wednesday.

THE COURT: What time do you want the list?

Page 88.

MR. BURNS: I think 10:00 a.m. would be fine.

THE COURT: Could you have the list to them tomorrow morning by 10:00 a.m?

MR. WEINGLASS: We will have the list by 10:00 a.m.

THE COURT: Okay, then we will adjourn until Wednesday.

MR. BURNS: Yes, Your Honor.

THE COURT: Okay.

MR. BURNS: Thank you, Your Honor.

THE COURT: We will adjourn until Wednesday.

THE COURT OFFICER: This Court is recessed until Wednesday.

- - - - -

(The hearing was adjourned for the day at 2:00 p.m.)

- - - - -

Page 89.

I hereby certify that the proceedings and evidence are contained fully and a accurately in the notes taken by me on the trial of the above cause, and that this copy is a correct transcript of the same.

Official Stenographer

Date

The foregoing record of the proceedings upon the trial of the above cause is hereby approved and directed to be filed.

Judge