Page 2.
Page 3.
(At 10:15 a.m. the hearing was convened in
the presence
of the Court and the attorneys.)
THE COURT: Before we begin I just want to make a comment.
I see Mr. Weinglass has scooped the news media once again: He's telling
them why I issued the stay. I did not issue the stay because Jesse Jackson
had anything to do with it. Nor did I issue the stay because of any
national or international pressure. I did it because the law required it
to be done. Or dictated that should be done. And that's the reason. It was
part of my order.
I told you at the very beginning, Mr. Weinglass, that
this little old Judge in this little old Courtroom will not buckle under
any kind of pressure, whether it be national or international. And I
repeat that once again for your benefit.
All right, we will proceed. I see you have a list here of witnesses.
Which one is first?
Page 4.
MR. WEINGLASS: Defense calls Arnold Howard.
Q. Was the police report accurate?
A. Some of it was but they added on a lot of stuff. And somebody signed
my signature on one of
Page 18.
Arnold Howard - Direct
them things.
Q. They added on to the police report?
A. Yes.
Q. Some of it is accurate?
A. Right.
Q. Do you know how long you were questioned?
A. Like I said, I was on ice for 72 hours. Transferred
from police station to police station, asking the same thing over and
over.
Q. So you were questioned for hours?
A. Yes.
Q. Could you estimate how many hours?
A. More or less 72 hours, that's how long I was gone.
Q. Did you mention Kenneth Freeman to the police?
A. Huh?
Q. Ken --
A. Yes, I did.
Q. Did you mention Sweet Sam to the police?
A. Yes.
Q. Do you know if their names appear in this report (displaying)?
A. No.
Q. Do you know, did you appear in a lineup once or more than once?
Page 19.
Arnold Howard - Direct
A. It was once.
Q. One. And was there anyone in the lineup with you?
A. Yes.
Q. Who you could recognize?
A. Kenneth Freeman.
Q. To your knowledge, did he appear more than once in a lineup?
A. I don't know, he kept getting picked out, they put me in a separate
room.
Q. He got picked out?
A. Yes.
Q. Do you know who was looking at you?
A. All I know, he said that girl behind that glass.
Q. There was a girl behind the glass?
A. Right.
Q. And her race?
A. African American.
Q. And Ken got pick out?
A. Yes.
Q. To your knowledge where is Ken Freeman today?
A. Deceased.
Q. Do you know approximately when he died?
A. Around '83, '4.
Page 20.
Arnold Howard - Direct
Q. Do you know anything about the circumstances of his death?
MS. FISK: Objection, Your Honor, unless it bears any relevance to these
proceedings.
THE COURT: The relevancy is, he is dead?
MR. WEINGLASS: Yes, Your Honor.
THE COURT: Well, do you have a death certificate if you
want to prove how he died? But that's not relevant. You can't bring him in
now, can you?
MR. WEINGLASS: Unfortunately, it's true.
THE COURT: Okay. So he's dead.
BY MR. WEINGLASS:
Q. What is your understanding of the way he died?
A. He was --
MS. FISK: Objection, Your Honor, unless it bears any relevancy to these
proceedings.
THE COURT: I will have to sustain that, Counselor.
MR. WEINGLASS: My understanding is that the witnesses' answer will bear
relevancy.
Page 21.
Arnold Howard - Direct
THE COURT: I don't know, unless you want to see me at sidebar.
MR. WEINGLASS: Well, we don't have a jury here, Your Honor.
THE COURT: I know that, but.
MR. WEINGLASS: The Court could accept or not accept or disregard.
MS. FISK: Oh, fine.
THE COURT: But the thing is, by you saying it in open Court he could
hear what you are saying.
MR. WEINGLASS: No, Your Honor, I have interviewed the
witness. I know what his answer's going to be. He has told me.
THE COURT: All right, what is your position? Still objecting?
MS. FISK: I will withdraw the objection based on Mr.
Weinglass' representation that it is relevant to these proceedings.
THE COURT: Okay.
BY MR. WEINGLASS:
Q. What is your understanding?
A. My understanding is he was handcuffed and shot up and
dumped up on Grink's lot on Roosevelt Boulevard buck naked.
Page 22.
Arnold Howard - Direct
Q. He was handcuffed?
A. Yes.
Q. And shot?
A. No, shot up with drugs.
Q. Oh, shot up with drugs.
What is the state of your health now?
A. I was shot in '89 five times. It's not too well.
MS. FISK: I'm sorry, shot in '89 by...?
I missed it. You said you were shot in '89 by...?
THE WITNESS: I don't know.
MS. FISK: Oh.
BY MR. WEINGLASS:
Q. Are you suffering any after effects from that wound?
A. Yes, I am.
Q. And just briefly, could you describe what it is?
A. I have a reconstructed stomach.
Q. Now, when you were questioned by the police on
December 9th and thereafter, 1981, or by the detectives, I should say,
were any, were there questions suggesting the answers to you?
Page 23.
Arnold Howard - Direct
A. Yes, they were.
Q. And prior to December 9th, 1981, what if anything did you do with
your license?
A. Like I said, they had, when I lent my license out I
never got my license back, they were suspended for 13 years behind the
incident.
Q. But before the morning of December 9th, 1981, what did you do with
your license?
A. I lent it to Kenneth Freeman.
Q. You lent it to Kenneth Freeman?
A. Right.
Q. And to your knowledge did he have it on the night in question?
A. Yes, he did.
Q. To your knowledge was he driving on the night in question?
MS. FISK: Objection, Your Honor.
THE WITNESS: Yes.
MS. FISK: Objection and move to strike. He has told us he wasn't
there.
THE COURT: Come on, Counselor. Unless you want to take the stand and
testify for him.
MR. WEINGLASS: May I just have a moment?
Page 24.
Arnold Howard - Cross
(Discussion held off the record
between defense
Counsel.)
MS. FISK: Excuse me, Your Honor.
(Discussion was held off the record at
this time among
Commonwealth Counsel.)
MR. WEINGLASS: Thank you, Mr. Howard. I have no further questions.
MS. FISK: May I inquire, Your Honor?
THE COURT: Sure.
- - - - - -
CROSS-EXAMINATION
- - - - - -
BY MS. FISK:
Q. Mr. Howard, before I begin: Are the glasses that you are wearing
prescription glasses?
A. Yes, they are.
Q. Would it be possible for you while at least you're answering
questions to remove them.
A. (Witness complies with request.)
Q. I am asking, for the record to reflect, because they are sunglasses,
so I could see your face.
A. They are not sunglasses, they are prescription glasses.
Q. They have dark glass, right?
Page 25.
Arnold Howard - Cross
A. All right.
Q. Thank you, sir. If in the course of any of the
questions that I have there is something you need to read or review,
obviously I have no objection with your utilizing those glasses. All
right, sir?
A. All right.
Q. Now, Mr. Howard, you have identified yourself today as
Arnold Howard. Is it correct, sir, that you have a date of birth of
4-2-54?
A. That's my wrong birth.
Q. That is your wrong birth?
A. Right, it is an error, it is a computer error. My birthday is
4-2-52.
Q. When you say it is a computer error, was a computer --
A. Some way '54 keep jumping up every date on my birthday.
Q. Comes jumping up every time where?
A. On the back of my birth date.
Q. Where does your birth date jump up wrong as a result of computer
error, sir?
A. For some reason, like I said, it jumps up '54. I was born in
'52.
Q. Right. I understand. Where does it jump up?
A. On a lot of applications.
Page 26.
Arnold Howard - Cross
Q. I see. Also, Mr. Howard, do you reside --
MS. FISK: May I read his address in open Court?
MR. WEINGLASS: Objection, Your Honor. Objection.
MS. FISK: May I approach the witness and show him his
address so he could tell me whether or not that is his address?
THE COURT: All right.
MS. FISK: Thank you. I will have to show it to Counsel first.
(Discussion was held off the record at
this time
between Commonwealth and defense Counsel.)
MS. FISK: You may need your glasses, Mr. Howard, I don't know.
THE WITNESS: I am totally blind.
BY MS. FISK:
Q. Is that your address, sir (displaying)(indicating)?
A. Yes, it is.
Q. All right. I have just shown you a document, Mr.
Howard, and you have advised us that the address on the document is in
fact your address?
A. Yes, it is.
Page 27.
Arnold Howard - Cross
Q. Am I correct, then, sir, that you were arrested in
April 1976 and subsequently found guilty and sentenced in May 1976 for the
crime of forgery; is that correct, sir?
A. I've been locked up a lot of times.
Q. All right. And particularly you were sentenced in May
1976 and convicted of forgery and also of theft by receiving stolen
property; is that correct, sir?
A. Yes.
Q. And is it also correct, sir, that you were arrested in
August 1975 and convicted and sentenced on April 23rd, 1976 for the crime
of burglary?
A. It's criminal trespassing.
Q. No, sir, it was criminal trespass in -- if I could
refresh your recollection... Do you recall being arrested on January 28th,
1974 and pleading guilty in front of Judge Smith, and in May 1974 being
placed on probation for criminal trespass?
A. Yes.
Q. But I was asking you, sir, about an arrest... on
August l0th, 1975, which lead to a negotiated guilty plea in front of
Judge Jenkins?
A. Yes.
Q. And a sentence on April 23rd, 1976 for
Page 28.
Arnold Howard - Cross
convictions of the crime of burglary? Burglary?
A. Yes.
Q. And you were placed on, in fact you were given a
prison sentence at that point by Judge Jenkins; is that correct?
A. Yes, the plea.
Q. So that wasn't criminal trespass, that was burglary?
A. Yeah, that was burglary.
Q. Do you also recall, sir, being arrested on December
the 29th, 1975 and being charged again with burglary and pleading guilty
in front of Judge Kane and being sentenced on May the 3rd, 1976, and also
receiving a prison sentence for that guilty plea?
MR. WEINGLASS: Objection.
THE WITNESS: It was time served on that.
MR. WEINGLASS: Yes, objection. References to burglary, as
I understand, it is not proper cross-examination unless it can be shown
that burglary, the underlying circumstances was crimen falsi. And there's
been no showing here. We've only been talking thus far about burglaries
which, I understand, are not proper impeachment. unless there is a
Page 29.
Arnold Howard - Cross
representation to the underlying circumstance.
MS. FISK: It is my understanding of the law, Your Honor,
that the crime of burglary is a crimen falsi.
MR. WEINGLASS: Is the Court going to permit it?
THE COURT: I will strike it if I research the law and it's not crimen
falsi, okay.
MS. FISK: Thank you.
BY MS. FISK:
Q. Mr. Howard, were you also arrested -- and we will move
away from burglary if Counsel would like -- let's turn to your most recent
arrest on August -- I'm sorry -- on November the 16th, 1991. Were you
arrested then and charged with two counts of forgery, to which you pled
guilty in front of Judge Gordon and were sentenced on August the llth,
1993?
A. Yes, to the two years probation, right.
Q. I'm sorry?
A. Two years probation, right.
Q. Would it be accurately three years probation, sir?
A. I say two years.
Q. Were you in fact given three years?
Page 30.
Arnold Howard - Cross
A. Two years.
Q. Are you still on that probation, sir?
A. I'm off probation next year.
Q. I can't hear you, sir.
A. I come off probation next year.
Q. So you are still on probation?
A. Yes.
Q. And those were for two, or at least one of those counts of forgery
is marked, well --
A. It was job related.
Q. Job related?
A. Yes, I was being paid with bad paychecks.
Q. Yes, sir. Now, Mr. Howard, you have told us that in
the very early morning of December the 9th, before the sun came up, you
were taken out of your home?
A. Yes, I was.
Q. And was that home the same address which I just showed
you on the document when I came up to where you are sitting?
A. Yes, it was.
Q. And that is the same address as, the address you are
living at now is the same address you were living at back in 1981?
A. I'm not saying where I'm living at.
Page 31.
Arnold Howard - Cross
Q. The address which I showed you was your address; is that
correct?
A. Yes.
Q. Oh. And was your address back in December 1981; is that right?
A. Yes.
Q. And you have told us that sometime before the sun came
up that morning, both uniformed and non-uniformed officers came to your
home?
A. Yes.
Q. How many non-uniformed officers came to your home?
A. I didn't count them, they all came and got me.
Q. Was it more than two?
A. Yes.
Q. Do you know how many more?
A. A whole lot more.
Q. Were you handcuffed when they came for you?
A. Yes, I was.
Q. And did they put in you an unmarked car? A marked car?
A wagon? How did they transport you when they came and got you from your
home?
A. In my drawers.
Q. I'm not asking what you were wearing, I'm asking what kind of
vehicle you were transported in?
Page 32.
Arnold Howard - Cross
A. Huh. A wagon.
Q. A wagon. So you were handcuffed and placed in a police wagon?
A. I was thrown back in the wagon.
Q. And that police wagon then drove while you were in it, right?
A. Yes.
Q. And when the police wagon stopped and the doors were opened, where
were you?
A. In the basement of the Roundhouse.
Q. And what did you do, or what happened to you after you
found yourself in this wagon in the basement of the Roundhouse while you
had handcuffs on?
A. I asked for my pants.
Q. All right, did you get your pants eventually?
A. Yeah, they gave them to me.
Q. Fine, sir, I am not asking you questions about your
clothing, I am asking you about physically where you moved from place to
place.
A. From there to Homicide.
Q. How did you get from the basement of the cell room up to
Homicide?
A. Through the door.
Q. Through the door?
Page 33.
Arnold Howard - Cross
A. Right.
Q. Did they put you on an elevator from the cell room, took you right
up to Homicide?
A. They took me through the door, they put me on an elevator.
Q. So you went, so I understand, you went from the cell room up to
Homicide?
A. Yes.
Q. Did you remain in handcuffs that entire time?
A. Yes, I did.
Q. So when they took you up to Homicide, you still had those handcuffs
on; is that correct?
A. Yes.
Q. Now, I thought, sir, that when Mr. Weinglass on direct
examination asked you whether or not you had been arrested that morning
you said no?
A. After they came and got me.
Q. Do you remember Mr. Weinglass asking you whether or not you were
arrested?
A. All he came and got me.
Q. Were you arrested that morning?
A. All he came and got me. He didn't say nothing. They stomped up my
mother's steps.
Q. My question is --
A. I am giving you the answer. They never said
Page 34.
Arnold Howard - Cross
if I was arrested or not.
Q. Well, let me ask you this. Did you sign an affidavit for Mr.
Weinglass...
When was this signed, yesterday?
A. Yes, I did.
Q. And did you on that, on that affidavit say that at
approximately 6:00 a.m. on December 9th, 1981 I was arrested by
Philadelphia Police and taken to the Homicide Department for
interviews?
A. What you call it, they came and roust you that time of
the morning and put handcuffs on you and take you out of the house?
Q. That's why I was asking you the question, sir, were you
arrested?
A. All they told my mother, they was taking me down to the
Roundhouse.
Q. But you signed an affidavit yesterday in which you swore before a
notary that you were arrested?
A. They didn't say I was under arrest when they came to my home.
Q. Now, Mr. Howard, after they took you up to Homicide --
and this was still, I assume -- or correct me if I am wrong -- before the
sun fully came up, very early in the morning of December 9th?
A. They don't have any windows up there, I don't
Page 35.
Arnold Howard - Cross
know if the sun was up or not.
Q. They have no windows up in Homicide?
A. No, not where I was.
Q. And where were you?
A. In a room, handcuffed to a chair.
Q. And how long were you in that room up in Homicide?
A. I didn't have no watch on.
Q. Well, you have been able to tell us today that you
were kept on ice, as you put it, for 72 hours?
A. Right.
Q. So you were able to estimate?
A. Right.
Q. How long were you in Homicide before --
A. A good while.
Q. Well, when you say a while, were you still there at lunch time?
A. They didn't bring me no lunch, I wouldn't know.
Q. Well, were you still there at dinner time?
A. No, they didn't bring me no dinner, I wouldn't know.
Q. Well, did you get hungry while you were there?
THE COURT OFFICER: Order in the Court.
Page 36.
Arnold Howard - Cross
THE COURT: Be quiet or you will be moved out of here.
BY MS. FISK:
Q. Before you got hungry?
A. Say that again.
Q. Did you get hungry while you were there?
A. Yes, I did.
Q. So you got the impression that you missed a meal?
A. Yes, I did, a lot of meals.
Q. A lot of meals. You got the impression that while you were in
Homicide you were missing a lot of meals?
A. Yeah.
Q. Is that right?
A. Right.
Q. Would you estimate, or could you estimate what portion
of the 72 hours that you were kept on ice you spent in Homicide? Most of
it? Half of it? A third of it?
A. About a day of it.
Q. About a day. So your estimate is that you were in Homicide for about
24 hours; is that right?
A. More or less.
Q. How much more or less? I mean you are
Page 37.
Arnold Howard - Cross
approximating, right, you could be off an hour or two; is that
right?
A. Look here, I went to sleep in there, so I was bored.
Q. All right. All right, so your best estimate is that
you got there sometime early in the morning of December 9th, 1981 and you
remained there until sometime early in the morning of December l0th, 1981;
is that right?
A. Yes.
Q. Okay. Where did you go after that?
A. They took me to another police station.
Q. How did you get from Homicide to another police station?
A. In the back of a wagon.
Q. So do I take it again that you left Homicide -- are you still in
handcuffs at this point?
A. Yes.
Q. All right. And are you taken directly then back down
to the cell room, to the cell room, the basement of the Roundhouse?
A. Yes.
Q. Were you put back into another wagon?
A. Yes.
Q. And you were then driven someplace?
Page 38.
Arnold Howard - Cross
A. Right.
Q. Where?
A. I don't know.
Q. You don't know?
A. Unh-unh, I'm not a police station freak.
Q. Well, when you got out of the wagon were you able to see where you
were?
A. No. All I know, I was in another police station.
Q. Another police station?
A. Right.
Q. Now, the persons that you spoke to at this second
police station, were they the same persons you had seen in Homicide or
different persons?
A. They just put me in a cell.
Q. Yes?
A. And kept me there.
Q. Oh, you weren't questioned at the second police station?
A. A cop came back there and asked me some questions, I looked at him
like he was dumb.
Q. So you didn't answer any question?
A. Right.
Q. Was the cop who came back there the same cop that you had seen in
Homicide or somebody new?
Page 39.
Arnold Howard - Cross
A. Another cop.
Q. New cop?
A. Yeah.
Q. How long did you remain at this second police station?
A. Awhile.
Q. Did you see any persons at the second police station that you
recognized?
A. No.
Q. Do you know the names of any of the police officers from the second
police station?
A. No.
Q. And as I understand it, you are unable to tell us even
in what part of the City this second police station was?
A. I know I wind up at Harbison and Levick. I know that
one because I've been out in that one before.
Q. You wound up at Harbison and Levick when?
A. Huh?
Q. Is that the second police station or a later police station?
A. It's one of the police stations I was at. I remember that one.
Q. Okay. Well, is that this one that we are
Page 40.
Arnold Howard - Cross
talking about, the second one? The one that you went to directly from
Homicide?
A. No.
Q. Okay. So you were at this second police station awhile?
A. Yeah.
Q. And again, can you tell us what percentage of the 72
hours that you were at this second police station?
A. I was there awhile, that's all I could tell you.
Q. And other than this one officer who you had not seen
before asking you questions, and you're looking at him like he was dumb,
did anyone else speak to you at the second police station?
A. They would come back there and look.
Q. But you never answered anything?
A. No.
Q. At some point you were then moved someplace else?
A. Yes.
Q. Where is that, sir? How did that occur?
A. The same way, in a wagon.
Q. All right. And the same way you ended up in another police
station?
Page 41.
Arnold Howard - Cross
A. Right.
Q. And was it basically the same thing, you didn't see anyone you
recognized?
A. No.
Q. You don't know the names of any of the cops?
A. No.
Q. Was Harbison and Levick this third --
A. Harbison and Levick was the last one I wind up at.
Q. Well, was this one the last one you wound up at or were you at more
than three?
A. About three of them.
Q. Pardon?
A. I think it was about three of them I wound up at.
Q. Okay, so you started at Homicide, you were taken to a
second one, and now you were at the third one, is that Harbison and
Levick?
A. Yeah, Harbison was the last one, I was there too. Then I was brought
back to the Roundhouse.
Q. Wait, we are not up to there yet. At Harbison and
Levick, did you see any officers you knew there?
A. No.
Q. Did you see any other persons you knew there?
A. No.
Page 42.
Arnold Howard - Cross
Q. Did you speak to anyone there?
A. No. The cop just came back and asked me questions.
Q. All right. A new cop?
A. A cop.
Q. Was it a new cop, was it one that you had not --
A. It was a detective, that's all I knew he said he was.
Q. My question to you is was it someone that you had seen
either at Homicide or at your home or in the second police station, or was
it a new cop?
A. It was another cop, that's all I know it was, a cop. I didn't pay no
attention to him.
Q. Well, had you seen him in those prior 36 hours?
A. No.
Q. Okay. You didn't answer his questions, though, right?
A. No.
Q. How long were you at Harbison and Levick?
A. Awhile before they took me back to the Roundhouse.
Q. Okay. They bring you back to the Roundhouse again, sir, in
handcuffs, right?
Page 43.
Arnold Howard - Cross
A. Right.
Q. Wagon?
A. Right.
Q. Into the basement of the Roundhouse?
A. Right.
Q. And then taken directly from the cell room up to Homicide? Is that
right?
A. They didn't put me in the cell room, they took me
straight through the doors straight up to Homicide.
Q. Straight through what doors?
A. The doors -- when you come into the Roundhouse they
have a door. You go through the door and go to the elevator to take you up
to Homicide.
Q. Now, were you handcuffed when --
A. Yes, I was.
Q. Now, do I understand, sir, that you were in the wagon, yes?
A. Yes.
Q. The wagon this time did not go into the basement of the
Roundhouse?
A. Yes.
Q. Oh, it did. It went into the cell room?
A. The same way going all the time.
Q. Oh, you will agree with me, sir, that the
Page 44.
Arnold Howard - Cross
wagons that go to the Roundhouse go to the cell room, or
the tank, which is in the basement of the Roundhouse?
A. Right.
Q. But they didn't put you in any cells?
A. No.
Q. They took you directly from that open area, into the tank, on the el
--
A. I never was in the tank.
Q. Oh, they took you from the basement of the Roundhouse --
A. Right.
Q. -- straight up to Homicide?
A. Right.
Q. Got you, okay. You are still handcuffed, taken to
Homicide and put back in the little room again?
A. Right.
Q. All right. Then what?
A. I was there awhile. The next day they opened the door and told me I
could leave.
Q. You stayed there awhile?
A. Right.
Q. Now, how long were you there at Homicide this second time?
Page 45.
Arnold Howard - Cross
A. Awhile, that's all I know, awhile.
Q. Was it less than the first time? You told us the first time was
about 24 hours, right?
A. I say a couple hours I was there.
Q. A couple hours?
A. Yeah.
Q. Did anyone speak to you this second time now that you
are at Homicide -- in your estimate which is approximately three days
later, right?
A. Yeah.
Q. Anybody speak to you?
A. The same detectives that was talking to me.
Q. The same ones that had spoken to you?
A. Right.
Q. And did they take any further statements from you?
A. I wouldn't say nothing else to them.
Q. Pardon?
A. I wouldn't say nothing else to them. I told them I told them all I
knew.
Q. All right. Now, these same detectives, can you
describe these detectives in any way? Were they black men or white men? Or
were they men, let's start with that? Were the detectives men at
Homicide?
Page 46.
Arnold Howard - Cross
A. Yeah.
Q. Black or white?
A. White.
Q. Both of them?
A. Yeah.
Q. Yeah. And were there two of them, in fact?
A. There was a couple of them.
Q. Oh. A couple means two: Would you agree with me?
A. No, more than two.
Q. More than two?
A. Yeah.
Q. Who took your statement the first time?
A. Two took my statement.
Q. Oh.
A. They played the game good cop-bad cop.
Q. That was when they took the statement?
A. Right.
Q. Now, when you're brought back to Homicide after having
been in this other police station in Harbison and Levick for a period of
days, now end up at Homicide the second time, is it my understanding from
you that these same two white cops who played good cop-bad cop with you
the first time you had been there, are coming in to try to talk to you
more this
Page 47.
Arnold Howard - Cross
second time?
A. Yeah.
Q. Yes?
A. Yes.
Q. And as I understand it, this would now be December 12th,
approximately, right, three days --
A. I don't know.
Q. -- after December 9th?
A. Yes.
Q. By your estimate of 72 hours?
A. Right.
Q. Did you see anyone else at Homicide that you
recognized other than these same two detectives that had interviewed you
initially?
A. Yeah, the same, a lot of cops was when I first came they was
there.
Q. But the only two that came to speak to you were the
same two that had spoken to you the first time?
A. A couple other cops.
Q. A couple other cops did too?
A. Yes.
Q. But this time you gave no additional statements?
A. Right.
Page 48.
Arnold Howard - Cross
Q. At some point, you said, they released you?
A. Yes.
Q. Were you released from --
A. There.
Q. From Homicide?
A. Right.
Q. So they took your handcuffs off?
A. Right.
Q. This is the first time your handcuffs were off in 72 hours?
A. I was handcuffed to a chair the majority of the time.
Q. Oh. And when they took your handcuffs off from the
chair, how did they have you leave the PAB, the Roundhouse?
A. They took me down.
Q. They took you down?
A. Right. Asked me did I want a ride home. I told them I didn't
want.nothing from them.
Q. Okay. When they took you down did you go back through the cell
room?
A. No.
Q. You went out through a different door?
A. Right.
Q. And what door is that, sir?
Page 49.
Arnold Edward - Cross
A. They take you down, they bring you down, you go down
on... let's see. Race. No, behind the Roundhouse, you go through where the
bail room at.
Q. And so I'm clear, in all of your visits to the
Roundhouse in that period of three days, that was the first time that you
were in that doorway, right, the one that goes behind the Roundhouse,
because all the other times you had come in and out on a police wagon that
pulled into the basement?
A. Right.
Q. Okay. So you left Homicide for the second time
approximately December the 12th, and you left through that door that opens
up onto the parking lot behind the Roundhouse?
A. Right.
Q. And you chose not to take a ride from the police?
A. Right.
Q. And you left?
A. Right.
Q. Okay. That doorway -- incidentally, Mr. Howard, had you been in that
doorway before?
A. A lot of times.
Q. And that was when you were coming in perhaps to speak to police
officers and the like?
Page 50.
Arnold Howard - Cross
A. No, when I be getting out of being incarcerated.
Q. I can't hear you?
A. From being incarcerated in the Roundhouse, you go out that
doorway.
Q. You go out that doorway?
A. Right.
Q. Would that be after you make bail or something?
A. Right.
Q. Well, let me ask you this. When you are incarcerated,
would you agree with me that you have never come into the Roundhouse from
that door?
A. Huh? Say that again.
Q. When you've been incarcerated?
A. Right.
Q. Would you agree with me that you never entered the Roundhouse
through that door?
A. I don't go down there and look.
Q. You just told us that you have been in that doorway before?
A. Coming out that doorway. Coming out that doorway.
Q. Right. You had come out that doorway?
A. Right.
Page 51.
Arnold Howard - Cross
Q. And because, and so the record is clear, in times past
when you've been incarcerated, you are taken down to the Roundhouse so you
could have your preliminary arraignment?
A. Right.
Q. At the arraignment Court there, right?
A. Right.
Q. And you are transported to the Roundhouse from
whatever district in the City you were arrested in?
A. Right.
Q. And you're taken by a wagon, presumably, or in some
fashion you are taken to the Roundhouse and you are taken to the cell room
in the basement of the Roundhouse?
A. Right.
Q. Yes?
A. Right.
Q. And you're held down there in what is commonly
referred to as a tank, but there are cell rooms down there, right?
A. Right.
Q. So all times that you have entered the Roundhouse,
including on December the 9th and within 72 hours after that, you always
came in through that basement entrance into the cell room area?
Page 52.
Arnold Howard - Cross
A. Yeah.
Q. Okay. The only times you left the Roundhouse through
that door which opens onto the parking lot is when you were not in
custody?
A. Right.
Q. Because you can't come into that door in custody, right?
A. I don't know.
Q. Well, whenever you have been in custody you have come in through the
cell room, right?
A. I always come through the basement.
Q. Right. Have you ever come to the Roundhouse, Mr. Howard, at a time
when you were not in custody?
A. Yes.
Q. Arrived in the Roundhouse?
A. Yes.
Q. And when was that, sir?
A. I came down to bail people out before.
Q. Okay. And when you came to the Roundhouse when you
were not in custody, to bail people out before, am I correct that you
entered the building through that same door that we're talking about that
you exited from when you were not in custody?
A. Right.
Q. And again, you were talking about the entrance
Page 53.
Arnold Howard - Cross
to the Roundhouse which opens to the parking lot behind, was that
behind Race Street, right?
A. Yeah, behind Race Street.
Q. You know what parking lot I'm talking about?
A. Right.
Q. Okay. Now, when you came in to bail people out, you
walked in that door and you turned to the right to go to the arraignment
Court, right?
A. Right.
Q. And that's where the bail window was?
A. Right.
Q. And you didn't have to sign anything to get into that because that
is a courthouse, right?
A. Right.
Q. Now, did you ever when you entered that building to
bail somebody out, after you entered the little foyer area, try to turn
and go to the left through the glass doors?
A. No.
Q. Into the main lobby of the Roundhouse?
A. No.
Q. Now, you would agree with me, sir, that when you walk
into that door of the Roundhouse there has always been a police officer in
that foyer area behind that little window?
Page 54.
Arnold Howard - Cross
A. Yes, there was.
Q. Checking people in, right?
A. Yeah.
Q. And people who want to go to the right to arraignment Court are free
to do that, right?
A. Yeah.
Q. But the doors that permit you to go to the left are blocked?
A. Right.
Q. They're locked?
A. Not all the time, I've seen them open.
Q. But there is a police officer there?
A. Right. At the window.
Q. Okay. Have you seen, when you have been there, sir,
that people who want to go to the left into the building who were not
police officers are presented with a book so that they can sign their
name?
A. I don't pay no attention when I go out of there.
Q. Mr. Howard, let me ask you this. You told us, sir,
that when you were brought to Homicide at about sometime before the sun
came up on December the 9th, 1981, you were put in a little room and you
were kept there for about 24 hours, right?
Page 55.
Arnold Howard - Cross
A. Yeah, more or less.
Q. Okay. Now, you've also told us that at some point
during those 24 hours two white men who played good cop-bad cop questioned
you and took a statement from you?
A. Yeah.
Q. Within those 24 hours that these officers took, that
is, typewrote a statement from you, was it in the first half of your stay
of those 24 hours or the second half?
A. Just around the second half. Because I wouldn't say nothing after
that.
Q. Pardon me?
A. I wasn't saying nothing.
Q. So for the first 12 hours you were at Homicide you didn't say
anything to them?
A. No.
Q. So it wasn't until in your estimation 12 hours passed?
A. No, I don't know how many hours passed.
Q. Well, you said the second half, right?
A. Like I said, I don't know how many hours passed.
Q. Well, am I correct that you just estimated it was in the second half
of your stay in Homicide --
Page 56.
Arnold Howard - Cross
MR. WEINGLASS: Objection: The question has been asked and
answered three times. The witness has indicated he doesn't know.
THE COURT: No, she hasn't really gotten a definite answer.
MR. WEINGLASS: Your Honor, you are questioning a witness
about 14 years ago, asking specific times. And Counsel has the time right
there on the statement. And trying to pin the witness down when she's
already gotten three answers to the same question.
MS. FISK: I also have a statement which is completely
contrary to the testimony of the witness, Judge. So I am not sure what
Counsel wants me to rely on and what he doesn't. And that is precisely why
I am asking those questions, Your Honor.
MR. WEINGLASS: The hour was noted by the investigating
detectives and it is right there. I won't mention it but for her benefit
her detectives wrote --
MS. FISK: Is Counsel going to agree that the entirety of
this statement is accurate? And if not, I have a right to question the
Page 57.
Arnold Howard - Cross
witness.
MR. WEINGLASS: The witness said some of it is and some of it isn't.
THE COURT: Are you saying that the time that's listed on that is
correct?
MR. WEINGLASS: I'm not sure but it might refresh the witnesses'
recollection.
THE COURT: Well, she is trying to find out from this
witness. If you are willing to admit the time listed on there is correct
then there is no sense in going into that line of questioning.
MR. WEINGLASS: Oh, I think the witness should be shown
and asked if it refreshes his recollection. He obviously doesn't have a
recollection.
THE COURT: Counselor, before that she has the right to
try to do whatever she wants to do. You have redirect.
MR. WEINGLASS: I have an objection.
THE COURT: On redirect you could do whatever you want to do.
MR. WEINGLASS: Well, I didn't object.
THE COURT: All I am asking you, if you are willing to admit that that
time on there
Page 58.
Arnold Howard - Cross
is correct then I will agree with you, I will stop the questioning.
MR. WEINGLASS: I have no idea. I think it should have been shown to the
witness.
THE COURT: Well, you may think that but you are not running the
Court.
MR. WEINGLASS: No. I object. When it was asked twice, the third time it
was asked I objected.
THE COURT: I haven't had a definite answer here, either.
I am listening too, I am trying to find out what he really remembers. Go
ahead.
BY MS. FISK:
Q. Mr. Howard, am I correct that a moment ago I asked you
whether the statement which you gave to these two white detectives who
played good cop-bad cop was recorded by them, typewritten in the first
half of your stay in Homicide or the second half, and that your estimation
was that it was given in your second half of your stay at Homicide because
for the first half you remained silent?
A. I don't know the second -- I told you I went to sleep.
Didn't I tell you that? I told you that. Wait a minute. I told you I went
to sleep.
Page 59.
Arnold Howard - Cross
Q. So you went to sleep --
MR. WEINGLASS: Objection, Your Honor. The witness isn't being given the
opportunity.
THE COURT: He said he went to sleep. Now let's find out when he went to
sleep. Come on? Counselor.
BY MS. FISK:
Q. And my question to you is did you go to sleep before
you ever gave the statement? That's what I am trying to find out. I am
just trying to find out the times, Mr. Howard?
A. Like I said, all I know, they asked me some questions.
Q. Right.
A. I don't know what time it was. They don't have no clock in
Homicide.
Q. Right.
A. When you're in there you're in a room.
Q. Right.
A. Don't know what time it is. They could tell you it's daytime, it
might be nighttime.
Q. Right. But you know that you got there very early in the morning
before the sun went up, right?
A. Yes.
Q. And you estimate that you were there for
Page 60.
Arnold Howard - Cross
approximately 24 hours, right?
A. Right.
Q. And you know that at some period while you were there
you went to sleep because you were bored, right?
A. Right.
Q. Was the time when these officers came into that room
and asked you questions which resulted in a statement, which Mr. Weinglass
asked you about, did that occur early in your time there or towards the
end of your time there?
MR. WEINGLASS: Objection.
MS. FISK: In the first half or second half. It is a reasonable
question, Your Honor.
MR. WEINGLASS: Objection: Asked and answered no matter
how reasonable it is. It's a continual process of cross-examination by
browbeating a witness by repeatedly asking the same question. I object to
it. Counsel has the time on the statement, the witness said he can't
recall.
THE COURT: I know that, Counselor. I said to you, are you
admitting that the time on the statement is correct?
MR. WEINGLASS: I think if it's in
Page 61.
Arnold Howard - Cross
there it should be shown to the witness.
THE COURT: Well.
MR. WEINGLASS: I don't know what kind of a game we are
playing here. They have the time on the statement.
THE COURT: You put him on, Counselor. She has a right to
cross-examine.
MR. WEINGLASS: No, she can't ask the same question over and over.
THE COURT: I will decide what she can do.
MR. WEINGLASS: Well, the law indicates that you are not
allowed to ask questions over and over again. And that's the basis for an
objection. Asked --
THE COURT: Counselor, I haven't heard a true answer yet
as to when it happened. That's what I am trying to find out for my
benefit. Did it happen in the first half or the second half, in the
beginning or at the end. I would like to know that. Now, he's the only one
that could tell us, unless you are willing to admit that's correct.
MR. WEINGLASS: He said he can't remember.
Page 62.
Arnold Howard - Cross
THE COURT: Okay, he can't remember. But she in
cross-examination could try to find out if he can remember. This is
cross-examination, Counselor.
MR. WEINGLASS: You can't ask the same question over and over and
over.
THE COURT: Counselor, please.
MS. FISK: I would note, Your Honor, that this witness has
already testified that it was in the second half of his stay in Homicide.
That was an answer some 10 minutes ago that is on the record by this
witness. And what I am attempting to do is try to pin that down further.
That's what I am trying to find out, Judge.
MR. WEINGLASS: No, and then in a follow-up question the
witness indicated he didn't know what hour it was.
MS. FISK: Which is why I am trying to explore the contradictions in the
witnesses' testimony.
MR. WEINGLASS: There is no contradiction and the time is in the
statement.
THE COURT: Counselor, the objection is overruled.
Page 63.
Arnold Howard - Cross
Come on, let's go.
BY MS. FISK:
Q. Are you able to answer the question, sir?
A. I answered to the best of my knowledge.
Q. Which is what?
A. I don't know what time it was.
Q. Now, Mr. Howard, I understand from your questioning on
direct examination that Mr. Weinglass has at some point shown you the
statement which was recorded?
A. Right.
MS. FISK: May I ask that this copy be marked, Your Honor, Commonwealth
Exhibit...
THE COURT OFFICER: 16.
MS. FISK: 16. And shown to Mr. Howard.
(Investigation interview record was
marked Commonwealth
Exhibit C-l6 for identification.)
MR. WEINGLASS: Is that for identification?
THE COURT: Well, at this time it's for identification.
MR. WEINGLASS: For identification.
THE COURT OFFICER: (Displaying).
Page 64.
Arnold Howard - Cross
MR. WEINGLASS: Right.
THE COURT OFFICER: C-16, Your Honor (handing).
BY MS. FISK:
Q. Mr. Howard, please look at that document, each of the
pages, and tell us whether or not you recognize that as a statement given
by you on December the 9th, 1981?
A. Yes.
Q. Is that your signature which appears at the bottom of each page?
A. Two of the top ones are but the other ones I'm sure are not.
Q. Tell us, please, which two pages do not bear your signatures?
A. These two (displaying).
Q. Well, when you say these two, start from the Page 1 --
you have page 1, page 2, page 3 and page 4, do you not, sir?
A. Yes.
Q. All right. What numbered pages -- 1, 2, 3 or 4 -- do not bear your
signature?
A. 4.
Q. All right. Any others?
I thought you said that there were two
Page 65.
Arnold Howard - Cross
pages that didn't?
A. Right, I'm telling you the other pages. And the bottom of number
5.
MS. FISK: May I have the document back, please.
THE COURT OFFICER: (Handing.)
BY MS. FISK:
Q. All right, so I understand, Mr. Howard, Commonwealth
Exhibit 16 -- I misspoke -- is a five-page document; is that right?
A. Right.
Q. And what you have told us is that the signature which
appears at the bottom of page 4 is not your signature?
A. No.
Q. Now, on page 5 there are two places where a signature appears?
A. Right.
Q. And as I understand your testimony, the bottom one is not your
signature?
A. No, it's not.
Q. But the top one is?
A. Right.
Q. Oh. Now, am I correct, then, that the signature which appears at the
bottom of pages 1, 2
Page 66.
Arnold Howard - Cross
and 3 are your signatures?
A. Yes.
Q. And did you place your signature on those pages after
the words which appear on this document were typed there?
A. On the top one I did.
Q. On those three pages I am talking about?
A. Right, there's only three pages I signed.
Q. Yes, sir.
A. Yeah.
Q. And my question is with regard to those three pages,
did you sign them after the words were typed in?
A. I don't remember.
Q. Or did you sign a blank piece of paper?
A. I signed a piece of paper, he had wrote the stuff down I said to him
and I signed it.
Q. Before you signed it did you read what was typed on those pages?
A. All he asked me did I have, did I knew who I had lent my driver's
license to and I told him.
Q. That is not my question. My question is, before you
signed the first page, the second page and the third page, did you read
what was written on those pages?
Page 67.
Arnold Howard - Cross
A. Not really.
Q. Did you look at it at all?
A. I read the top page.
Q. And you were given, I take it, then, an opportunity by these
detectives to read it?
A. I threw it at them.
Q. You threw it at them?
A. Right.
Q. After you signed these three pages?
A. Right.
Q. Now, you have told us that this is not your signature on page --
A. The bottom one isn't. You can look at that and see.
Q. On page 4 is not your signature, right?
A. No.
Q. But on page 5 you said that your signature does appear, the top
signature is yours?
A. Right.
Q. Did you sign that page at the same time that you signed the other
three?
A. I don't remember back that far, okay. All I remember
is signing the top paper. Statement of who I gave my license to.
Q. I see. So now you are telling us that the
Page 68.
Arnold Howard - Cross
only signature --
A. They got a lot of stuff added in on that statement.
Q. And we are going to get into that and you will have an
opportunity to tell us what is correct and what isn't, Mr. Howard. But am
I understanding you correctly that the only page which you know you signed
was the first page?
A. No.
Q. So you know that you signed the second page and the third page?
A. Right.
Q. And you know that you signed the fifth page, or one time, the top
part, right?
A. Right.
Q. Well, let me ask you this, Mr. Howard. Am I correct
that the two white detectives who played good cop-bad cop were there while
this statement was being --
A. No, one left out.
Q. One left out? The good cop or the bad cop?
A. I don't remember who left, all I know, one of them left out.
Q. And the one who remained, did he type, was he typing
while he was talking to you and while you were
Page 69.
Arnold Howard - Cross
talking to him?
A. He was writing.
Q. Well, you would agree with me that this is a typewritten
statement?
A. Yes.
Q. And is this the statement that was shown to you by the detective
after he spoke to you?
A. I'm not even sure. All I did was sign, I thought I was signing what
I told him.
Q. Did you tell the detective -- I will start at the
beginning, I will start at the very top. Does this document, which has
your signature on it on the first page which you remember signing
(displaying) -- (indicating), does it reflect that you were brought into
Homicide by Detective D'Amato and Detective Williams at 12:25 p.m. on
December the 9th, 1981?
A. Say that again.
Q. I'll come show it to you.
MS. FISK: If I may, Your Honor?
BY MS. FISK:
Q. Does this document, sir, reflect that you -- Arnold
Howard -- were brought in, that is brought into Homicide, by Detective
D'Amato and Detective Williams on 12-9-81 at 12:25 p.m., or 12:25 in the
afternoon?
Page 70.
Arnold Howard - Cross
A. No.
Q. Is that what it says?
A. That's what it say but it wasn't, that is the wrong time you got
down there.
Q. Because you were brought in when it was still dark out, right?
A. Look here, I know I was in the bed.
Q. Yes, sir.
A. When they came and got me.
Q. Well, was it dark out or was it light out?
A. It was before daybreak.
Q. Okay. Do you also note that it shows the place of
interview is Room 104 PAB, which is Homicide, at the Police Administration
Building?
A. Right.
Q. That is correct, that's where you were questioned?
A. Yes, I think so.
Q. And does it show that the date and time when this is now being taken
is 12-9-81 at 12:35 p.m?
A. That's what it say.
Q. Does that refresh your recollection as to what time you were
interviewed?
A. No, it doesn't.
Q. All right. Now, do you remember, sir, being
Page 71.
Arnold Howard - Cross
asked by the detective, Arnold, last night a police
officer was shot and killed at 1200 Locust street. What can you tell me
about the shooting. And you said nothing.
A. Right. Because I wasn't there.
Q. Right. That's what you were asked and that's what you said?
A. Right.
Q. Okay. Now, do you remember being asked this? Arnold,
I'm going to show you a photostatic copy of the application for a
duplicate driver's license. What can you tell me about this application.
And then it shows in parentheses, Howard was then shown by Detective
D'Amato a copy of a Bassett's application for a duplicate operator's
license made out in his name. And your answer was it's mine?
A. Right.
Q. So that's what you were asked and that's the answer you gave?
A. Right.
Q. Now, were you then asked the question, when and where
did you get it, and your answer was I got it from Bassett's at Broad and
Poplar on the 27th of November?
A. Right.
Page 72.
Arnold Howard - Cross
Q. That's right?
A. Right.
Q. And this is the first page, which you read before signing,
right?
A. Yes.
Q. Okay. Now, do you remember being asked the question,
when was the last time you saw this Bassett's application, and you
answered the Monday before last. And then it shows Howard was then shown a
calendar by Detective Williams and stated the 30th of November. Do you
remember that, sir?
A. No, I do not, it is too far back for me to remember.
Q. Do you remember saying that it was the Monday before last?
A. No.
Q. Well, do you remember being asked this? Where were you
when you saw this application on November 3Oth, and your answer at 18th
and Chestnut at the Chuckwagon, I was eating inside there?
A. Right.
Q. Do you remember giving that answer, sir?
A. Right.
Q. And that was correct?
Page 73.
Arnold Howard - Cross
A. Right.
Q. Okay. Do you remember being asked, what did you do
with this Bassett's application at the Chuckwagon, and giving your answer,
I had it in my pocket then, I didn't discover it missing until this past
Saturday, the 5th of December?
A. No, I told them what I did with my license.
Q. That you what?
A. I told them who I gave my license to. A copy of my license to.
Q. My question, sir, is did you say to them I had it in
my pocket then, I didn't discover it missing until this past Saturday, the
5th of December?
A. I'm telling you I told the officers who I gave my license to, they
put that in there.
Q. Well, Mr. Howard -- I'll be happy to come show you --
I am still reading, sir, from the first page of this document.
A. Right.
Q. Which is the page which you have told us you read before signing
it.
MR. WEINGLASS: Your Honor, he didn't indicate he read it.
The witness indicated otherwise, as a matter of fact.
MS. FISK: I thought he said he read
Page 74.
Arnold Howard - Cross
the first page.
MR. WEINGLASS: No.
THE COURT: The record will show, Counselor, all right. Go ahead.
BY MS. FISK:
Q. Do you remember being asked this question? Sir, do you
know how you lost it. And your answer was I believe I had lost it in the
back of that Volkswagen. Do you remember saying?
A. Wait a minute. No, no, no, no. I said who I gave my
license to. You ain't putting no words in my mouth with that.
Q. My question is --
A. You can't put words in my mouth. I told you who I gave my license
to.
Q. My question, Mr. Howard, is whether you remember being
asked this question and giving this answer. I am not asking you right now
whether or not it was truthful, I am just asking you if you remember being
asked the question and giving the answer, okay.
So do you remember being asked do you know how you lost
it and answering I believe I had lost it in the back of that
Volkswagen?
A. They never was lost.
Q. So do I understand from that that you don't
Page 75.
Arnold Howard - Cross
remember giving that answer?
A. No, I told them who I gave my license to.
Q. Okay.
A. Over and over. That's why my license was suspended for 14 years.
Q. Incidentally, Mr. Howard -- and I will get back to the
document C-l6 in a moment. You told us on direct examination that in
addition to being put on ice for these 72 hours -- and you have now
described to us where you went and how you went there -- that there was a
period of time when you were placed in a lineup with Kenneth Freeman,
yes?
A. Right, and me and Ken Freeman's picture was taken together.
Q. All right. Well, I am going to ask you about that
picture in a minute. Let's focus on the lineup for a moment. You say that
you and Kenneth Freeman were placed in a lineup?
A. Right.
Q. Now, was that at Homicide, sir?
A. Yes.
Q. Okay. Was that while you and Kenneth Freeman were in
one of the little rooms in Homicide, or were you and Kenneth Freeman out
in the open area of Homicide?
Page 76.
Arnold Howard - Cross
A. No, there ain't, they don't put you in the open area in
Homicide.
Q. I'm sorry, I didn't understand you?
A. They don't put you in an open area in Homicide, they
put you in a little room like you're an animal.
Q. So you and Kenneth Freeman were in a little room?
A. He was in one room at first and I was in the other room. And then
they put us together.
Q. You told us, sir, that you were in a lineup. Were you
with Kenneth Freeman when you were in a lineup?
A. Yes, I was.
Q. And how is it, sir, that you know that you were in a lineup?
A. It ain't the first lineup I've ever been in.
Q. My question, Mr. Howard, is did the people who were
viewing the lineup come into the same room you were in?
A. No, they didn't come inside the room, they was behind the glass.
Q. So were you able to see persons who were behind the glass?
A. No.
Page 77.
Arnold Howard - Cross
Q. My question, then, is how do you know that there were
persons looking at you from behind the glass?
A. Because I've been in a lineup before.
Q. So you're telling us that you are assuming that people
were looking at you because you and Kenneth Freeman were in a room that
had glass?
A. It was five other people, I think it was about four
other people in that room with us. Up standing up on like a stage.
Q. Oh. Oh.
A. I didn't know what it was.
Q. There were --
A. Other people in the lineup.
Q. There were a total of six of you in sort of like a big
area that was enclosed by glass; is that it?
A. Enclosed by glass. Glass was in front of us.
Q. Pardon?
A. The glass was in front of us.
Q. And is there a wall behind you that has a series of
lines on it which shows how tall the people are?
A. Let me explain something to you.
Q. What?
Page 78.
Arnold Howard - Cross
A. I don't remember back that far. All I know, I was in a lineup down
there.
Q. And you were in the lineup at Homicide?
A. Yeah, I don't know if it was Homicide, they took us on the other
side.
Q. Pardon?
A. They took us out the room and took us on the other side.
Q. I'm sorry, I didn't understand what you just said?
A. They took us out of the little rooms we were in.
Q. Right?
A. And took us to the other side of the room in Homicide.
Q. Right?
A. It's glass like.
Q. All right.
A. They put us in another room, it has a wall, had all of us standing
up against the wall.
Q. And it had a little stage?
A. It looked like a stage, you had to walk up on it, something.
Q. I see. Now, you have been in other lineups before, Mr. Howard, in
the course of being arrested
Page 79.
Arnold Howard - Cross
in the past; is that correct?
A. Yes.
Q. And in fact you have told us you knew what it was because you have
been in lineups before?
A. Right.
Q. Now, am I correct, Mr. Howard, that when you have been
in lineups before that time, and in fact since that time --
A. Whoa. Not since that time.
Q. Not since that time. All right, so before that time,
you walked into a little room and up on a stage that was surrounded by
glass, right?
A. Right.
Q. And that little room is up at the Detention Center on State
Road?
A. They got one up there and they got one down Homicide.
They took it out of there. It is a room up in there. They put you up
against the wall and they look at you like you're an animal.
Q. Now, did someone take your picture as you were standing in that
lineup?
A. No, they did not. They took me and Ken Freeman' picture
separate.
Q. So was your picture taken while you were standing in the lineup, to
the best of your
Page 80.
Arnold Howard - Cross
knowledge?
A. I don't remember.
Q. Okay. But you do remember that your picture with Mr.
Freeman was taken when the two of you were together?
A. Yes.
Q. Now, were the two of you together in this area where
the lineup was conducted or were you together someplace else?
A. On the other side.
Q. When you say the other side, are you talking about the
side of Homicide where the interrogation rooms are?
A. The rooms.
Q. Were the two of you in one of those rooms?
A. Yes, we were.
Q. And who took your picture?
A. How am I supposed to know?
Q. Did you see your picture get taken?
A. Yes, I did.
Q. All right, who took your picture?
A. A man, that's all I knew, took my picture.
Q. Black man or white man?
A. A white man.
Q. In uniform or in plainclothes?
Page 81.
Arnold Howard - Cross
A. Plainclothes.
Q. Was he using a Polaroid or an insta-matic; do you remember?
A. I don't know nothing about no cameras.
Q. Did you see a piece of (indicating) --
A. Yes, the film came out.
Q. You saw the film come out as soon as he took it?
A. Yes.
Q. Did you get to see the picture?
A. Yeah, I seen the picture.
Q. And it was a picture of you and Ken?
A. Yes.
Q. And that was shown to you immediately after it was taken?
A. Not immediately. They had them on the desk when they brung us back
out.
Q. Now, did this all occur, sir -- the taking of your
picture with Kenneth Freeman, the placing of you in the lineup with five
other men -- did this all occur before you gave this statement
Commonwealth Exhibit 16 (displaying) to the detective or after?
A. First of all, I don't remember when exactly that statement --
Q. You don't know what?
Page 82.
Arnold Howard - Cross
A. I don't know when.
Q. You don't remember?
A. I don't remember what date I gave that statement.
Q. I thought, sir, that you told us that it was that
morning that you were awakened up out of bed before the sun came up and
taken to Homicide that you gave the statement?
A. I didn't give no statement right away in the Homicide.
Q. Mr. Howard, maybe I'm confused, but let me go back a
little bit. Didn't you tell Mr. Weinglass on direct examination that after
they woke you up that morning and took you to 8th and Race, and you spent
some 24 hours there --
A. Yeah.
Q. -- at sometime during that period of time when you
were taken out of bed and taken to Homicide, that you gave a statement to
detectives?
A. Yes.
Q. All right?
A. But I don't know when I gave it to them.
MR. WEINGLASS: Objection. Objection, Counsel might be
confused. She inadvertently added in her question that the statement
was
Page 83.
Arnold Howard - Cross
given in the morning. And the witness had never said
that. I think if Counsel could have the question read back you will see
that you made an inadvertent error which threw the witness off. I will ask
that that question be read back.
MS. FISK: I have no problem with that.
BY MS. FISK:
Q. Was that the problem, Mr. Howard, is that what I said that confused
you?
A. I believe so.
Q. Fine. My question, then, sir, is the statement which
you gave at Homicide sometime that day when you were brought there after
being woken up in your house, was that, was that given by you before you
were placed in this lineup and had your picture taken with Mr Freeman or
after you were placed in this lineup and had your picture taken with Mr.
Freeman?
A. It's hard to say when.
Q. Okay. Now, do you remember being asked, sir -- and I
am going back to Commonwealth Exhibit 16, this statement -- I am now
starting to read from the top of page 2. Which is again a page that bears
your signature (displaying) (indicating). Do you
Page 84.
Arnold Howard - Cross
remember being asked by the detective who was questioning
you -- I'm sorry -- well, what Volkswagen would that be. And your answer
was William Cook's Volkswagen?
A. Yeah, I know William had a Volkswagen, he used to take me to work in
it.
Q. Did the detective ask you what Volkswagen would that
be, and you said to him William Cook's Volkswagen?
A. No, I don't remember.
Q. Do you remember being asked when were you in William Cook's
Volkswagen?
A. I never was asked was I in William Cook's Volkswagen.
Q. Pardon?
A. I never was asked if I was in that Volkswagen.
Q. Okay, let me read the entire question and answer and
you could say that again. Do you remember giving this answer to that
question? The Monday I was in the Volkswagen, William is a vendor in
Center City, I ran into him when I left the Chuckwagon. In front of the
Duke and Duchess Movie. He gave me a ride to 8th and Spring Garden.
Did you give that answer to that question?
Page 85.
Arnold Howard - Cross
A. I can't remember.
Q. Oh. Do you remember being asked this question? Who was
in William Cook's auto besides you and him when he gave you the ride on
that Monday, and your giving this answer, just him. He had a lot of stock
in the car, incense and gloves and umbrellas. Do you remember giving that
answer to that question?
A. I may have.
Q. Was that accurate: Is that the kind of stuff William Cook kept in
his car?
A. It wasn't his stuff.
Q. Well, was that the kind of stuff he kept in his car?
A. Not normally.
Q. But you may have given that answer?
A. Yeah, I may have.
Q. Do you remember being asked this question? Where did
you sit in the Volkswagen when he gave you the ride, and your answering I
sat in the back. The front seat was full of stuff. Do you remember that
answer to that question?
A. No, not really.
Q. Well, let me ask you this. Do you remember
Page 86.
Arnold Howard - Cross
being asked when was the last time you saw William Cook,
and your answer was that was the last time, that Monday about five o'clock
in the afternoon?
Did you give that answer to that question?
A. I may have.
Q. Do you remember being asked do you know Wesley Cook?
A. Yes.
Q. And answering yes, I know them both?
A. Right.
Q. And that's correct?
A. Right.
Q. Do you remember being asked how do you know Wesley,
and you answered we all grew up together in the Spring Garden project, do
you remember that, sir?
A. Right. Yes.
Q. And that is the answer that you gave?
A. Yes.
Q. And do you remember being asked when was the last time
you saw Wesley Cook, and answering I ain't seen Wesley in almost a
month?
A. Yes.
Q. Did you give that answer?
A. More or less.
Page 87.
Arnold Howard - Cross
Q. More or less?
A. I seen him and I didn't see him.
Q. Was that the answer you gave?
A. More or less.
Q. And it is correct?
A. It may have, maybe not.
Q. Do you remember being asked this question, or the next
question? Did you know where your driver's license application was before
today. And your giving an answer no. I thought I had lost it on the street
because I lost a phone book with it. I thought my wife had it because I
had a lot of girls' phone numbers in it?
A. First of all, I told them who I gave my license to.
Q. So my question, then --
MR. WEINGLASS: Objection, Your Honor: The witness has to be given an
opportunity to answer.
THE COURT: No, he is not answering that question. He
could then proceed if he has to. It is a specific question. Let him answer
that and then he could go on with whatever he wants. But answer that
question.
BY MS. FISK:
Page 88.
Arnold Howard - Cross
Q. My question is did you give that answer to that question?
A. No.
Q. Do you remember being asked, do you know where Wesley
Cook lives, and answering he was living with his mother at 7th and
Wallace?
A. Yes.
Q. I think 704 Wallace?
A. Yes.
Q. And was that correct?
A. Hmm, I think so.
Q. Do you remember being asked do you know where William
Cook lives and answering in the same place with his mother?
A. Yes.
Q. And you gave that answer?
A. More or less.
Q. And that was correct?
A. More or less.
Q. Do you remember being asked at the -- I am at the top
of page 3 -- when did you hear about the officer being shot last night.
And answering this morning on the radio?
Q. Did you give that answer?
A. No.
Page 89.
Arnold Howard - Cross
Q. To that question?
A. No.
Q. Do you remember being asked, did you know then that
Wesley and William Cook had been arrested, and giving this answer, no, but
I heard on Mary Mason that Mumia had been arrested and I know Mumia to be
Wesley Cook, that's his Muslim name?
A. Huh. No.
Q. You never gave that answer?
A. No.
Q. Do you remember giving this question and giving this
answer to it? When did you know that your driver's license application was
found, and your answer being after I got your message to call the
Roundhouse and I spoke to a Detective Thomas. He had asked me my phone
number?
A. No, they came and got me. Nobody didn't call my house.
Q. So you never gave that answer to that question?
A. No.
Q. Do you remember being asked do you know where we found
your Bassett's application and answering no?
A. When they came and got me they told me my license was found in the
officer's hand.
Page 90.
Arnold Howard - Cross
Q. Do you remember being asked, when I first asked you if
you knew how you lost your application you answered I believe I had lost
it in the back of that Volkswagen. What made you say that. And answering,
because of what the officer had said to me on the phone, he said you found
a duplication license with my name on it. Do you remember giving that
answer to that question?
A. No.
Q. Do you remember being asked, did he say where we found
it, and you said no, all he said is that you found it. Do you remember
that answer to that question?
A. No.
Q. Do you remember being asked how did you know about a
Volkswagen, and answering I read it in the Daily News and I know the
Volkswagen was William's?
A. No.
Q. Do you remember being asked what can you tell me about
Wesley Cook? And your answer was all we did was grow up together, gang
warred together. We were in the Black Panther Party together around '69 or
'70?
A. No.
Q. You didn't give that answer?
Page 91.
Arnold Howard - Cross
A. No.
Q. Is that true?
A. Yeah, we all hung out together. But I'm not saying what we were
in.
Q. Were you in the Black Panther Party?
A. I'm not saying, I'm in no party.
Q. So you never gave that answer?
A. I'm not saying I was in no party, put it like that.
Q. Did you ever give that answer?
A. No.
Q. Do you remember being asked is there anything else you
could think of that would help us in our investigation of the shooting of
Police Officer Faulkner, and your answer was that's all I know, what I
read in the paper?
A. How could I read it in the paper and I was incarcerated.
Q. So you didn't give that answer?
A. No.
Q. Do you remember being asked do you know Officer
Faulkner and your answer was I may know him. I'm the secretary of the Town
Watch in Spring Garden and I know Officer Redden at 11th and Winter?
A. Who?
Page 92.
Arnold Howard - Cross
Q. Officer Redden -- R-E-D-D-E-N -- at 11th and Winter?
A. Right. I know Officer Redden.
Q. Did you give that answer to that question?
A. Yes.
Q. Now I'm going to page 4, sir, which you said is the
page which, which you did not sign; is that correct?
A. Yeah.
Q. Do you remember being asked this question? Did you see
Officer Faulkner's picture in the paper today and your answer was yes?
A. No.
Q. You weren't asked that question, didn't give that answer?
A. No. I didn't know.
Q. Do you remember being asked did he look familiar to you and your
answer was somewhat?
A. No.
Q. Do you remember being asked do you know how police,
Police Officer Faulkner would have your Bassett's application, and your
answer was no?
A. No.
Q. You don't remember being asked that question?
A. I might have been asked it.
Page 93.
Arnold Howard - Cross
Q. Did you say no?
A. I don't remember what I said back then.
Q. Do you remember being asked, have you been stopped by the police
recently for anything?
A. Back then I was stopped a whole lot.
Q. Do you remember saying yes, this past Monday night?
A. I don't remember.
Q. Well, do you remember this? Do you remember being
asked where was that that they stopped you, and your answer was at 7th and
Fairmount. The question was what time was that. And your answer was about
eleven o'clock that night. We were making our rounds at the project, me
and some people from Town Watch. They saw my walkie-talkie and stopped me.
I showed them my Town Watch card with my name on it and they let us go
after they listened to our walkie-talkie and heard our base station?
A. I don't remember that.
Q. Does that sound familiar, sir?
A. I know we had a Town Watch back then.
Q. What?
A. I know we had a Town Watch back then.
Q. You know you were in Town Watch back then?
A. Right.
Page 94.
Arnold Howard - Cross
Q. So is that the answer that you gave to those series of
questions?
A. Nah... no.
Q. You don't know?
A. No.
Q. Do you remember whether or not you ever told the
detective who was questioning you that you were in Town Watch?
A. They might have found that card in my wallet.
Q. Do I understand that you never told them you were in Town Watch?
A. I am not saying what I told them, I don't remember
what I told them since '81. I don't have a photostatic memory.
Q. Now, Mr. Howard, does the name Detective D'Amato sound at all
familiar to you?
A. No. I don't know.
Q. How about the name Detective Williams, Jim Williams?
A. I don't remember them cops' names, I don't want to remember their
names.
Q. Do you think that you would recognize any of those
cops or any of the cops who were the good cop-bad cop that questioned you
these two times at Homicide?
Page 95.
Arnold Howard - Cross
A. I might, I may not.
MS. FISK: Can Detective James Williams please be asked to
come into the Courtroom. I believe he is out in the hallway.
(Pause.)
MS. FISK: May I simply ask the Detective to state his name for the
record.
DETECTIVE WILLIAMS: Detective James Williams, number 730, Central
Detective Division.
BY MS. FISK:
Do you recognize this man, Mr. Howard?
A. (Witness shakes head.)
Q. You are shaking your head, we have to write it down.
A. No. I wouldn't know what he looked like if I seen him today.
Q. I'm sorry?
A. If I seen him after he left this Courtroom I wouldn't know who he
looked like.
MS. FISK: All right, thank you.
May I ask, Your Honor, that this document be marked
Commonwealth Exhibit 17, a copy for defense Counsel if they would
like.
(Excerpt from PAB logbook was marked
Commonwealth
Exhibit C-l7 for identification.)
Page 96.
Arnold Howard - Cross
THE COURT OFFICER: C-17, Your Honor.
MS. FISK: May I approach the witness, Your Honor?
THE COURT: (Indicating).
BY MS. FISK:
Q. Mr. Howard, you are being shown a photocopy of a sheet
of paper. I want to ask you whether you see about halfway down your name
written in the second column which says name? Do you see the name Arnold
Howard?
A. Yeah.
Q. You have to speak into the microphone.
A. Yes.
Q. All right, I just want to make clear: Let's go two
names above where the date is 12-9-81, all right?
A. Yes.
Q. Now, next to your name it just says 12-9; is that correct, sir?
A. That's what it say on that piece of paper.
Q. Is your name Arnold Howard?
A. Yes, it is.
Q. The next column over, sir, on the top says Unit; do you see that,
sir?
Page 97.
Arnold Howard - Cross
A. Yes.
Q. And next to your name there is the letters H-O-M?
A. Yes.
Q. Now, the next column there are two columns, time in and out; do you
see that, sir?
A. Yes.
Q. All right. And the enter column next to your name shows 12:30; do
you see that, sir?
A. Yes.
Q. And the out column next to your name shows 2:30; is that
correct?
A. No.
Q. Pardon?
A. No.
Q. It does not show 2:30?
A. I can't even see that.
Q. Why don't you look.
A. That looks like a seven.
Q. That looks like a seven?
A. Yes.
Q. There is a line -- fine. And then on the third column
-- I'm sorry -- the final column, which is at the top marked escort, there
is a signature?
A. Looks like a signature.
Page 98.
Arnold Howard - Cross
Q. And that is not your signature?
A. Right here?
Q. Yes, sir.
A. That's not my signature.
Q. No, that is not your signature?
A. No.
Q. Have you ever seen this piece of paper before?
A. No.
Q. Have you ever seen the logbook which is at the front
window of the Roundhouse by the door which opens up to the parking
lot?
A. Yes.
Q. Is this what pages in that logbook look like?
A. I wouldn't, I wouldn't know. I just know there is a book right
there.
Q. Pardon?
A. All I know, there's a book right there.
Q. Now, sir, you also testified that at some point your hands were
tested, right?
A. Yes.
Q. And was that also at Homicide?
A. Yes.
Q. Was that the first time you were at Homicide, as opposed to the
second time?
A. The first time I was there... I don't remember
Page 99.
Arnold Howard - Cross
when they did it, all I know, they put this stuff on my hands.
Q. You don't remember, am I correct, that it was the first time you got
there or the second?
A. It was the first time when I was there.
Q. Do you remember how long you were at Homicide when they put that
stuff on your hands?
A. I didn't have no watch on.
Q. Well, was the stuff put on your hands, if you know,
before you were in the lineup or after you were in the lineup?
(Pause.)
A. Before, I think, I'm not sure.
Q. Do you know whether or not the stuff was put on your
hands before or after you spoke to the detective and gave a statement
(displaying)?
A. So much was going on in there, I didn't remember.
Q. Who was the person who put the stuff on your hands --
I recognize you don't know anyone's names -- but, again, was it a
detective?
A. I don't know if it was a detective or not.
Q. Well, was it a person in a uniform or not in a uniform?
A. Out of uniform.
Page 100.
Arnold Howard - Cross
Q. Pardon?
A. Out of uniform.
Q. Out of uniform. Was it a male or female?
A. A man.
Q. White or black?
A. White.
Q. Now, I take it, Mr. Howard, that you were pretty angry
about being kept on ice for these 72 hours?
A. Yes.
Q. So when you were finally released from Homicide you made an
immediate complaint to someone?
A. I might have.
Q. Pardon?
A. I might have, I don't remember. I told my people about it.
Q. And who are your people, sir?
A. My family.
Q. Did you make any complaint to the Police Department?
A. I don't really remember.
Q. You don't remember?
A. No, it's been since '81, how would you remember something that far
back?
Q. Would you agree with me that when a person who
Page 101.
Arnold Howard - Cross
has done nothing wrong such as yourself is woken up out
of his bed at 6:00 in the morning and kept on ice for 72 hours, that your
response naturally would be to complain to the Police Department?
A. No, they don't have no win at the Police Department.
Q. Pardon?
A. They don't have no win at the Police Department.
Q. Don't have no...?
A. Win.
Q. Win?
A. Right.
Q. How about an attorney, did you contact an attorney?
A. My family asked me to leave the matter alone.
Q. Oh. And based on that request by your family you left the matter
alone?
A. Yes.
Q. And you didn't tell anyone about it, as I understand
it, until you spoke to Mr. Weinglass about it on Friday?
A. No, there were a lot of people who knew about what
went on because I told a lot of people what went on.
Page 102.
Arnold Howard - Cross
Q. Okay. And you told a lot of people when it occurred about it, is
that it?
A. Yes.
Q. Now, Mr. Howard, when you were interviewed by Mr.
Weinglass in person the other day, did he take a statement from you?
A. I told him what I knew.
Q. And was he writing down what you told him?
A. Some things.
MS. FISK: I would ask, Your Honor, access to that statement.
THE WITNESS: It wasn't no statement.
MR. WEINGLASS: These are obviously, if you are referring
to my notes, they are work product. I'm Counsel for the Petitioner.
MS. FISK: I am asking, Your Honor, for, if there are any
verbatim records of the contact that Counsel had with the witness, that
constitutes a statement.
MR. WEINGLASS: No verbatim.
MS. FISK: That's what I am saying.
MR. WEINGLASS: No verbatim record.
MS. FISK: Very well.
MR. WEINGLASS: While we're on it: With respect to C-17, could I have
a
Page 103.
Arnold Howard - Cross
representation from Counsel as to what this document is from? It's just
--
MS. FISK: Certainly. This is a photocopy from the logbook
maintained at the front door of the Police Administration Building. That
is the public door of the Police Administration Building. Those books
being maintained over the years in the custody and control at the Police
Administration Building. This is a photocopy from the page which records
on, starts from some persons coming in on December the 8th, and runs
through December the lOth, 1981, making a record of those persons coming
in through that public door of the Roundhouse, reflecting the time that
they are coming in and out, if that time is available when the person is
so ready to leave.
MR. WEINGLASS: Right. What troubles us, number one --
MS. FISK: Your Honor, could I complete my cross-examination?
MR. WEINGLASS: Talking about C-l7 for a moment.
MS. FISK: I understand. Could I complete my cross-examination?
Page 104.
Arnold Howard - Redirect
THE COURT: They introduced it for identification at this
time. If you have a problem about it, let's take it up later. Let's get
finished with the witness so he could go home or wherever he wants to
go.
BY MS. FISK:
Q. Now, Mr. Howard, just so I'm clear: You were never
arrested, that is in any formal fashion, on December the 9th, December the
lOth, December the llth, or December the 12th of 1981; is that right?
A. Say that again.
Q. Sure. You were never formally arrested on any of those dates that I
just gave you?
A. I never was charged with nothing the whole time they had me down
there. They just had me down there.
Q. Right, for the 72 hours you were kept on ice?
A. Right.
MS. FISK: Your Honor, I have no further questions of this witness.
MR. WEINGLASS: Just a few questions, Mr. Howard.
- - - - -
REDIRECT EXAMINATION
- - - - -
Page 105.
Arnold Howard - Redirect
BY MR. WEINGLASS:
Q. Was it an application for a driver's license or the
driver's license itself that you testified to that you gave to Kenneth
Freeman?
A. I gave him the license. Because back then you could get photostatic
copies of your license.
Q. And so when the statement that was read to you by
Counsel indicated that it was an application, that isn't what you recall
telling the police?
A. No, I told them I gave to him my permanent driver's license, a copy
of my driver's license.
Q. And you gave him the name of the person you gave it to?
A. Yes.
Q. And that was the person you saw in the precinct that night?
A. Yes, sir.
Q. The person who was in a lineup?
A. Yes, sir.
Q. And the person who they photographed with you?
A. Yes, sir.
Q. Now, you were asked about being interviewed by me. Has
anything happened with respect to your mother or your family since you've
been in contact with me?
Page 106.
Arnold Howard - Redirect
MS. FISK: Objection, Your Honor. It's beyond the scope of
cross-examination.
MR. WEINGLASS: No, the question, he was specifically
asked about meeting me and my taking a statement, etcetera.
BY MR. WEINGLASS:
Q. I'm asking him now as a result of that has anything happened?
A. Yes.
MS. FISK: Objection, Your Honor.
THE COURT: Wait awhile.
MR. WEINGLASS: Personal knowledge.
MS. FISK: I would note as well that when he was
interviewed by Mr. Weinglass is irrelevant in light of the fact that we
received this affidavit at 5:30 yesterday afternoon. He could have been
interviewed a year-and-a-half ago, we were notified as to the subject of
this witness' testimony 5:30 yesterday afternoon.
MR. WEINGLASS: Well, Counsel wasn't listening to the
direct very carefully because I asked him when was the first time he had
any contact with me. And it wasn't a year ago.
THE WITNESS: Yes, sir.
MS. FISK: It was last Friday.
Page 107.
Arnold Howard - Redirect
MR. WEINGLASS: Right.
MS. FISK: But I still don't understand the content of the
question and why it is at all relevant to cross-examination. It is beyond
the scope and I object.
MR. WEINGLASS: Find out in a moment.
MS. FISK: I object, Your Honor.
BY MR. WEINGLASS:
Q. What has happened to you and your family since I've had contact with
you?
A. I don't appreciate my mother being brought to the police
station.
MS. FISK: I am objecting. You have to wait, sir. Thank
you. I object, Your Honor: It is beyond the scope of
cross-examination.
MR. WEINGLASS: Let me ask the question more specifically, I will
withdraw it.
THE COURT: All right.
BY MR. WEINGLASS:
Q. Has your mother been harassed by the police since you talked to
me?
A. Yes.
MS. FISK: You see, Your Honor, that was an improper question. I
objected to the
Page 108.
Arnold Howard - Redirect
first so Counsel instead is introducing the improper
question. And I object to that and ask that that be stricken.
THE COURT: I will have to strike it too. If you want to call his
mother, fine. Okay.
BY MR. WEINGLASS:
Q. Do you have personal knowledge of what was happening to your
mother?
THE COURT: I said if you want to call his mother, fine.
MR. WEINGLASS: I am going to ask him of personal knowledge.
THE COURT: No, no personal knowledge.
MS. FISK: I object. I don't care if Martians have landed
on this man's roof. This is a man that we were notified about at 5:30 last
night. To suggest that anything that has happened to him or his mother
since he spoke to Mr. Weinglass is attributable to anybody other than Mr.
Weinglass is to misrepresent the truth.
MR. WEINGLASS: They had a statement for 14 years.
MS. FISK: That's right, and he wasn't called to trial because this man
doesn't know
Page 109.
anything about the murder of Officer Faulkner, has
nothing to do with the guilt or innocence of this Defendant, which is the
purpose of this hearing, is nevertheless called by the defense. And we
didn't care about speaking to him and did not.
THE COURT: I sustain the objection. You have an
exception. Let's go. Anything further with this witness?
MR. WEINGLASS: Nothing further.
THE COURT: Thank you, Mr. Howard. You are excused.
All right, who is your next witness?
MR. WEINGLASS: Your Honor, I do want to bring up the question of
C-17.
THE COURT: Well, bring it up later, please. I want to
know now who is your next witness. You have people here. For instance, you
have Dr. Hoyer. Are you going to call him?
MR. WEINGLASS: We have Professor Lambert as our next witness.
MS. FISK: Your Honor, Professor Lambert is a witness we have previously
objected to, I understood.
THE COURT: Did I rule on that
Page 110.
already?
MS. FISK: I thought you did, Your Honor, but I will
re-raise our objection on the basis of the offer of proof that we have
been presented. Apparently, Dr. Lambert is a person who in the nineties
interviewed about 35 people who were jurors on Judge Jackson's death
penalty cases. And as a result of those interviews has opinions about
jurors in general. That is irrelevant and inadmissible testimony with
regard to what was in the minds or retentions of the 12 Jurors on this
Jury in 1982. We, therefore, object.
THE COURT: All right. He's out.
MR. WEINGLASS: He's out, Your Honor?
THE COURT: Yes.
MS. FISK: I would note, Your Honor, I believe the Court previously
ruled on this witness.
THE COURT: I probably did. The notes will tell us that.
I hope you are typing up all of these notes.
MR. WEINGLASS: The Court wanted an affidavit and we gave the Court a
long
Seite 111 ist nicht auffindbar.
Page 112.
Sharon Smith - Direct
MR. WILLIAMS: We don't have any problem with him being released during
the lunch hour.
THE COURT: If Dr. Hoyer is around tell him he could go until two
o'clock.
Okay, call Sharon Gaines Smith.
- - - - -
Q. What happened next?
A. I looked. When I looked out the window I seen a lot of
police officers beating a black man with dreadlocks.
Q. Okay, you are talking about the window to your apartment?
A. Yes.
Q. And you were looking where, down on the street?
A. Yes.
Q. And you said you saw police officers?
A. Yes.
Q. About how many police officers did you see?
A. About five, maybe six.
Q. Five, maybe six. And again tell us what you saw these five or six
police officers doing?
A. They were beating the black man with the
Page 115.
Sharon Smith - Direct
dreadlocks with them sticks they carry. And with their feet.
Q. With sticks and their feet?
A. Yes.
Q. Were they kicking the man?
A. Yes.
Q. Did you hear if these police officers were saying
anything while they were hitting him with the sticks?
A. Yes.
Q. And kicking him?
A. Yes.
Q. What kind of things were they saying?
A. Kill the black mother fucker, beat the shit out of the black mother
fucker.
Q. So it was racial in nature?
A. Yes.
Q. Did you have an impression back in December, on
December 9th, 1981, as you were looking on this scene, as to who was being
beaten? Talking about your impression now.
MS. FISK: Objection, Your Honor.
MR. WILLIAMS: Your Honor, it is directly relevant to why
we're calling this witness. This is the crucial aspect of her
Page 116.
Sharon Smith - Direct
testimony.
MS. FISK: It may be crucial but if it's her impression,
that is not a fact that the witness can attest to.
THE COURT: Yes.
MR. WILLIAMS: It is her state of mind. Witnesses always
testify to their state of mind, or often testify.
MS. FISK: It is offered for the truth and not for any purpose --
MR. WILLIAMS: That's why it is admissible.
THE COURT: Isn't that for the fact-finder to decide? Just
give me the facts and I will go from there.
MR. WILLIAMS: One of her facts is her state of mind. I am
asking for state of mind. We all know the state of mind exception to the
hearsay rule. State of mind is often relevant.
THE COURT: Are you still objecting?
MS. FISK: Yes, this is not hearsay. This is simply not a
fact known to the witness. It is a guess and an impression.
THE COURT: Okay, I will let it in. If I rule that it's inadmissible I
will just
Page 117.
Sharon Smith - Direct
disregard it and strike it from the record later. Let's go.
MR. WILLIAMS: Fair enough, Your Honor.
BY MR. WILLIAMS:
Q. Now, as you were looking out that window on December
9th, 1981, did you yourself have an impression as to who was being
beaten?
A. I thought it was the man that we usually see in the
neighborhood giving out pamphlets talking about black people.
Q. So you thought it was a man who you have seen in the neighborhood on
other occasions?
A. Yes.
Q. And what kind of hair did this man have?
A. Dreadlocks.
Q. And the man you saw being beaten had dreadlocks?
A. Yes.
Q. And this man with dreadlocks that was being beaten you
thought was a man who in the past had handed out pamphlets?
A. Yes.
Q. And you said talked about black people?
A. Yes.
Page 118.
Sharon Smith - Direct
Q. And did this man hand out pamphlets and talk about
black people with the dreadlocks in the vicinity of 13th and Locust?
A. Yes.
Q. By the way, what was your reaction when you saw the beating taking
place?
A. I was real scared and nervous and I started vomicking.
Q. You started vomiting?
A. Yes.
Q. It was that upsetting to you?
A. Yes, I've never seen anything like that before.
Q. You've never seen anybody being beaten like that before?
A. No, no.
Q. Now, after this incident that you saw on December 9th,
1981, did you ever see this man with the dreadlocks selling, giving out
pamphlets in that area again?
A. No.
Q. Never have again?
A. No.
(Discussion held off the record between Defense
Counsel.)
Page 119.
Sharon Smith - Cross
MR. WILLIAMS: Miss Smith, thank you very much. The
prosecutor's going to now ask you some questions.
THE WITNESS: Oh, okay.
- - - - -
CROSS-EXAMINATION
- - - - -
BY MS. FISK:
Q. Good morning, Miss Smith.
A. Good morning.
Q. Miss Smith, may I just determine: Are you the woman
who is currently on probation for a guilty verdict finding you guilty of
simple assault before Judge New?
A. Yes.
MR. WILLIAMS: Your Honor, I am going to object to that
and move to have it stricken:, It deals with an alleged assault.
MS. FISK: No, Your Honor.
MR. WILLIAMS: Not crimen falsi.
MS. FISK: That is correct, the fact that the witness is
currently on probation is relevant as it does go to the bias of the
witness.
MR. WILLIAMS: Oh, we agree with that,
Page 120.
Sharon Smith - Cross
certainly.
MS. FISK: That is correct, and she is on probation, that was the extent
of my question.
MR. WILLIAMS: The point is so was Mr. Chobert when he testified at
trial.
THE COURT: Counselor, are you withdrawing that objection?
MR. WILLIAMS: I am withdrawing it.
THE COURT: Well, if there is nothing for me to rule on let's go.
MS. FISK: Thank you, Your Honor.
BY MS. FISK:
Q. Now, Ms. Smith, you were so horrified by this beating; is that
right?
A. Yes.
Q. And you had never seen anything like it before?
A. No.
Q. You, I take it, have never seen anything like it since: It was that
horrible?
A. No, I haven't.
Q. So I take it, ma'am, that in the hours that passed
that beating you saw a huge number of additional police officers remain at
that
Page 121.
Sharon Smith - Cross
intersection?
A. Yes.
Q. And I take it that you went down to report that to someone?
A. No.
Q. And that was because you were afraid of the police now: They had
beaten someone?
A. Yes, plus my husband told me to stay out of it. Mind my
business.
Q. Told you to stay out? In the 14 years since that time,
have you made a formal report or a formal complaint about that beating to
any person?
A. No.
Q. To any attorney?
A. No.
Q. To any judge?
A. No.
Q. To any committee investigating police brutality or police
conduct?
A. No.
Q. How is it, Miss Smith, that you have come to be a witness here
today?
A. Well, I feel as though he shouldn't be executed. You don't know if
he did it or not.
Q. Yes, ma'am. All right, you feel as though Mr.
Page 122.
Sharon Smith - Cross
Jamal should not be executed because you don't know whether he did it
or not?
A. You don't know.
Q. I don't know whether he did it or not. Yes, ma'am, how
does that lead to your being a witness today?
A. Excuse me?
Q. Having said that, how does that lead to your being a witness here
today?
A. Well, I was talking with friends and family and they introduced me
to him, to the lawyers.
Q. Introduced you to...?
A. The lawyers (indicating).
Q. To which? To Mr. Weinglass or Mr. Williams? To Miss Wolkenstein? One
of these lawyers here?
A. All three of them.
Q. All three of them. And when is it that you were introduced to
them?
A. Last month.
Q. And was it last month after you were introduced to
them that you told them what you have told us today?
A. Yes.
Q. And that was the first time that you had ever told any person what
you had seen?
Page 123.
Sharon Smith - Cross
A. No, that's not the first time I told anybody what I had heard.
Q. Who had you told?
A. My neighbor Jerry. My family members.
Q. Incidentally, when you heard these shots and this
argument out your window from the Midstown Hotel, what floor were you
on?
A. Third.
Q. And were your windows open?
A. Cracked just a bit.
Q. And it was the winter: Was it cold outside?
A. Yes, the rooms are very hot.
Q. I see. And you were able to through the crack open in
the window to hear these things that were taking place?
A. Yes, we could hear, they were very loud.
Q. Well, could you hear what the argument was before you heard the
gunshots?
A. No.
Q. Could you hear how many voices you heard?
A. About three, maybe four.
Q. Could you tell if they were male or female voices?
A. Sound like men.
Q. Now, did you look out the window when you
Page 124.
Sharon Smith - Cross
heard the argument?
A. No.
Q. Then you told us you heard gunshots, two or three, right?
A. Yes.
Q. Now, did you then look out the window immediately after hearing
those gunshots?
A. Yes.
Q. Now, is it my understanding then that, well, what is your definition
of immediately?
A. Excuse me?
Q. I asked you if you looked out your window immediately
after hearing the gunshots. And by that I mean you heard the gunshots and
within a second you were looking out your window?
A. I'd say about three seconds.
Q. Okay, so within three seconds of hearing these two to
three gunshots you looked out and saw five to six police officers beating
this black man with dreadlocks using their sticks and their feet?
A. Yes.
Q. And did you see any police vehicles or just these?
A. Yes, it was police cars outside.
Q. How many police cars?
Page 125.
Sharon Smith - Cross
A. Say about four.
Q. Did you see any other person on the ground other than
the black man with dreadlocks who was being beaten?
A. No.
Q. Now, the nature of the beating that you saw, you said that it was so
horrible it made you ill?
A. Yes.
Q. What part of this man's body was being kicked and hit with the
sticks?
A. Everywhere.
Q. Did it appear to you that every bone in this man's body is going to
be broken by this beating?
A. I thought he was going to die.
Q. So that the force of the beating was so horrible that
you thought he was going to be killed as a result of the force of being
beaten?
A. Yes.
Q. And do I understand it he was being kicked in the head, yes?
A. Everywhere.
Q. Everything that you could see was being kicked and hit, multiple
times?
A. Yes.
Q. And am I correct that it appeared that it
Page 126.
Sharon Smith - Cross
looked like every bone in this man's body was being broken?
A. Yes.
Q. But you are not a medical doctor, you can't make that
determination?
A. No.
Q. But the force was that brutal?
A. Yes.
Q. Now, the man that you thought it was, this man who
sold pamphlets, did he usually sell pamphlets during the day?
A. Sometimes.
Q. Well, when would you see this man who sold pamphlets?
A. During the evening.
Q. When you say evening, what do you mean?
A. Say around 4:30, five o'clock, in that time.
Q. In the afternoon?
A. Yes.
Q. Is that the period of the day that you had seen this
man with pamphlets at that intersection before?
A. Yes.
Q. And that was generally the time of day you saw him?
Page 127.
Sharon Smith - Cross
A. Yes; it was usually the time we were going in the building.
Q. Pardon?
A. That's usually the time we were going in the building with our
children.
Q. Oh, all right. How long had you been living at that building
about?
A. Ahh, about seven, eight months.
Q. And in the seven to eight months you would see this
man selling pamphlets at about 4:30 or five o'clock in the afternoon?
A. Yes.
Q. And that's the only time of day you would see that man?
A. Yes.
Q. You had never seen that man out on the corner at three o'clock in
the morning?
A. No.
Q. Is that right?
A. Excuse me?
Q. You had never seen that man outside on the corner at
three o'clock in the morning; isn't that right?
A. No, I wasn't outside at three o'clock in the morning.
Page 128.
Sharon Smith - Cross
Q. And you never looked out your window at three o'clock in the
morning?
A. Sometimes.
Q. And on occasions that you had looked outside of your
window at three o'clock in the morning, you had never seen him out
there?
A. I don't know. I don't know. There was a lot of people out that
time.
Q. Now, I take it that you discovered sometime in the
course of that morning that a police officer had been shot?
A. I found out during the news, yes, the next couple days.
Q. Did you call the police officers and let them know
that there was a man who sold pamphlets at that corner with
dreadlocks?
A. No, I just told you I didn't inform any police officers.
Q. Well, when you went to the window after hearing the gunshots, was
your husband awake?
A. Excuse me?
Q. When you went to the window after hearing the gunshots
-- I will rephrase that question. When you went to the window after you
heard the gunshots, did anyone else in your family go to the window with
you?
Page 129.
Sharon Smith - Redirect
A. My husband.
Q. Now, what is his name?
A. Wendell Gainey.
Q. MS. FISK: Thank you, ma'am.
I have nothing further, Your Honor.
MR. WILLIAMS: Just briefly, Your Honor.
- - - - -
REDIRECT EXAMINATION
- - - - -
BY MR. WILLIAMS:
Q. Miss Smith, where were you inside your hotel room when you heard the
gunshots?
A. We was laying down.
Q. You were laying down in bed?
A. Yes.
Q. And was your husband in bed with you?
A. Yes.
Q. And your children were there?
A. Yes.
Q. How old are your children?
A. Now?
Q. Back in 1981.
A. My oldest daughter Sharon was getting ready to be a
year. And my daughter Shawinda had just turned
Page 130.
Sharon Smith - Redirect
two months.
Q. Okay. And what was your physical condition on December 9th,
1981?
A. I was pregnant.
Q. You were pregnant?
A. Yes.
Q. And when you heard the gunshots did you comment about it with your
husband, to your husband?
A. Yes.
Q. And did he say something back to you?
A. He told me to lay back down and mind my business.
Q. He told you to lay back down and mind your business. And what did
you say back to him?
A. Nothing, I just scooted down (indicating). But I was still looking
out the window.
Q. You were curious?
A. Yes.
Q. So you heard the gunshot and then you talked about it with your
husband?
A. Yes.
Q. And then he said mind your business?
A. Yes.
Q. And you didn't want to mind your business?
A. No.
Page 131.
Sharon Smith - Redirect
Q. So that eventually you got out of the bed?
MS. FISK: Objection, Your Honor. That was not her testimony.
MR. WILLIAMS: This is redirect, Your Honor. Following up from the
--
MS. FISK: But it's also non-leading direct examination. And it's
misrepresenting the testimony.
MR. WILLIAMS: Fine, I will rephrase it.
BY MR. WILLIAMS:
Q. At some point after your husband told you to mind your business, I
take it you got out of bed?
A. I was just scooting on the end of it, peeking out the window.
Q. Okay. Scooting out of the bed?
A. Yes.
Q. Now, about this man who had dreadlocks and sold, or
gave out pamphlets. Did you ever have a reason, before December 9th, 1981,
ever have a reason to look out the window at three o'clock in the morning
to see if this man giving out pamphlets is out there in the street?
A. No.
Q. No reason to do that?
Page 132.
Sharon Smith - Recross
A. No.
MR. WILLIAMS: No further questions.
MS. FISK: Just a couple.
- - - - -
RECROSS-EXAMINATION
- - - - -
BY MS. FISK:
Q. Ms. Smith, how many months pregnant were you in December of
1981?
A. Hmm... I was almost two.
Q. So your sleep was already being interrupted by your pregnancy?
A. No, I wasn't asleep. I wasn't asleep.
Q. When you heard the gunshots?
A. I wasn't asleep, I was laying down.
Q. I understand that. But on the night, you told us on
cross-examination that there had been other nights that you had looked out
the window, right?
A. Yes.
Q. On how many occasions?
A. I don't know.
Q. More than five?
A. No, I don't know.
Q. On none of the occasions that you had ever looked out the window
before do you remember ever
Page 133.
Sharon Smith - Redirect
seeing that man with dreadlocks?
A. I wasn't really looking to see him.
Q. So you don't know if he was there or not?
A. True.
Q. So the only time you know he was there was about 4:30
or five o'clock in the afternoon when you would come into the
building?
A. Right.
MS. FISK: Thank you, ma'am.
THE COURT: Okay.
MS. FISK: I'm sorry, I just have one question.
BY MS. FISK:
Q. Were you aware, Miss Smith, or were you living in Philadelphia in
June and July 1982?
A. Yes.
Q. And were you aware that the trial for Mr. Jamal
involving the murder of Police Officer Faulkner was going forward?
A. Yes.
MS. FISK: Thank you.
- - - - -
REDIRECT EXAMINATION
- - - - -
BY MR. WILLIAMS:
Page 134.
Sharon Smith - Redirect
Q. Well, picking up from that: Did you voluntarily ever
step forward to tell a lawyer that you had seen this man being beaten?
A. No.
Q. Okay. Can you explain to us why?
A. I was afraid.
Q. You were afraid?
A. Yes.
Q. And did your husband encourage you to step forward?
A. No.
Q. Did he -- I'm sorry, go ahead.
A. No.
MR. WILLIAMS: No further questions.
THE COURT: All right, you are excused.
We will take a luncheon recess until 1:30.
THE COURT OFFICER: Court stands in recess until 1:30 p.m.
- - - - -
Luncheon recess was held until 2:00 p.m.
- - - - -
MS. WOLKENSTEIN: Your Honor, before
Page 135.
Paul Hoyer, M.D. - Direct
we begin the next witness, I want to on behalf of the
Petitioner review our motion for discovery. I want to note several things
that were obtained very --
THE COURT: Could we do that after we finish with the next
witness? Let's take the next witness so he could leave. If that's Dr.
Hoyer, I am sure he has much more important things to do than just sit
around and wait to be called.
MS. WOLKENSTEIN: I will wait until the witness is completed.
THE COURT: Okay. Dr. Hoyer.
Paul J. Hoyer, M.D, having been duly
sworn, was
examined and testified as follows:
BY MR. WEINGLASS:
Q. Good afternoon, Dr. Hoyer.
A. Good afternoon.
Q. Dr. Hoyer, are you the same Paul J. Hoyer who
testified in this proceeding during the trial on June 25th, 1982?
Page 136.
Paul Hoyer, M.D. - Direct
A. I have no specific recollection of appearing.
Q. You have no recollection of appearing and testifying in this
case?
A. That's correct.
Q. Right. Were you serving in any capacity with the City of
Philadelphia in June of 1982?
A. Yes.
Q. And what capacity was that?
A. Assistant Medical Examiner.
Q. And would it refresh your recollection if I handed you
what purports to be a copy of the transcript of June 25th, 1982 in which a
Paul J. Hoyer, Assistant Medical Examiner for the City of Philadelphia,
was duly sworn and testified?
A. I'll have to look at it.
MR. WEINGLASS: The record reflects that I'm handing a -- I should show
Counsel...
THE COURT OFFICER: I'm sorry (handing).
MS. FISK: Thank you very much.
MR. WEINGLASS: Let the record reflect I'm handing a copy
of what purports to be a copy of the transcript of June 25th, 1982, having
shown a copy of that transcript to Counsel.
MS. FISK: A portion of that day's
Page 137.
Paul Hoyer, M.D. - Direct
transcript, I would add.
MR. WEINGLASS: That's correct.
THE COURT OFFICER: (Handing).
THE WITNESS: No, it does not.
BY MR. WEINGLASS:
Q. It does not refresh your recollection?
A. That is correct.
Q. Having looked at the transcript you still can't say
that you were the Dr. Paul J. Hoyer who testified in this trial?
A. Not of my own, not of my own memory.
Q. Well, but having looked at the transcript, the
transcript does not serve to refresh that recollection?
A. That is correct.
Q. Strike it. Did you maintain a daily diary of your
activities as the Assistant Medical Examiner of the City of Philadelphia
in June of 1982?
A. Not that I recall.
Q. Were you subpoenaed here today?
A. Yes.
Q. Did the subpoena ask you to bring any documents with you?
A. Yes.
Page 138.
Paul Hoyer, M.D. - Direct
Q. What did it call for?
A. It called for me to bring any documents or photographs that are in
my possession.
Q. All right. Is there anything in your possession?
A. Pursuant to that subpoena?
Q. Yes.
A. No.
Q. There is nothing. And when you came to Court today
were you provided with any documents by Counsel?
A. I was provided with some photocopies of documents from
the file of the Medical Examiner's Office.
Q. Right. Did you recognize those documents?
A. As to form, yes.
MR. WEINGLASS: And may this be identified as the next Exhibit in
order.
THE COURT OFFICER: D-26. D-26, Mr. Porterfield.
THE COURT OFFICER: (Handing).
BY MR. WEINGLASS:
Q. Handing you D-26: Is that the document that
Page 139.
Paul Hoyer, M.D. - Direct
A. This might be a similar photocopy but it's not the document.
Q. And what differences do you notice, Doctor?
A. Well, I initialed, initialed and dated the upper
right-hand corner of the front page of the document that I was given this
morning. And this is not initialed and dated so I know it's not, not the
identical document. It may well be a photocopy, but it's not the identical
thing you gave me.
Q. Other than your initials in the upper, right-hand
corner of the first page, do you notice any differences in that
document?
A. I do not see any differences but since I didn't keep a
record of exactly what was present I couldn't say it was identical.
Q. Right. Now having looked at both the document you were
shown this morning and now D-26, does that refresh your recollection at
all that you were the Dr. Paul J. Hoyer who conducted the autopsy
examination on Officer Daniel Faulkner in December of 1981?
A. I have no refreshed recollection. It appears
Page 140.
Paul Hoyer, M.D. - Direct
to be my signature on the report but I have no recollection of
performing the autopsy.
Q. You have no recollection, even having read your Medical Examiner's
report?
A. That is correct.
Q. But that is your signature on the report, is it not?
A. It appears to be a photocopy of my signature, that's correct.
Q. Now, Dr. Hoyer -- incidentally, how many autopsies have you done of
police officers?
A. Ahh, I'm sorry, as to what, as of what date?
Q. As of now, today.
A. Ahh...
Q. Could it be one?
A. No, I don't think so.
Q. Two?
A. I don't recall an exact number.
Q. Under three?
A. You could slice it and dice it, I don't remember an exact
number.
Q. Give us the name, if you can, of one other police
officer whose autopsy you have performed since you were Board
certified?
MS. FISK: Objection, Your Honor.
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Paul Hoyer, M.D. - Direct
MS. FISK: It's not relevant, any autopsy of any other
police officer that the doctor autopsied since he was Board certified is
not relevant to these proceedings.
MR. WEINGLASS: I'm trying to attempt to refresh the
doctor's recollection. In this instance he performed an autopsy of a
police officer. I'm trying to indicate to the doctor if it's possible that
he's only done one of these in his entire career and therefore that might
help him refresh his recollection.
THE COURT: I'm sure it must have been more than just one
police officer. But don't you have the original thing he saw this morning?
He said you gave him something and he reviewed it. Where is that?
MR. WEINGLASS: Yes.
BY MR. WEINGLASS:
Q. You were given a document this morning, were you not?
A. Yes.
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Paul Hoyer, M.D. - Direct
Q. What did you do with that document?
A. I handed it to the Court Officer when I was told I could leave for
lunch.
MR. WEINGLASS: May we have that document?
MR. WEINGLASS: While that's being found.
THE COURT: Wait awhile.
THE COURT OFFICER: (Handing).
MR. WEINGLASS: I will now hand you another document which -- could we
mark it --
THE COURT: Let's mark it the same number. What is that?
MR. WEINGLASS: D-26.
THE COURT OFFICER: The next one is D-27.
THE COURT: Wait awhile. What was the one that was just handed to him,
what is the number on that?
THE COURT OFFICER: D-26.
THE COURT: All right, put D-26 on this one and let's just make an
exchange.
MR. WEINGLASS: Okay.
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Paul Hoyer, M.D. - Direct
THE COURT: That should be very difficult for anybody to do.
THE COURT OFFICER: D-26.
THE COURT: Same as that other piece of paper? All right.
Look, please, let him give it to him, see if that is his
document, then we could move along here. He got the document for you,
let's just go ahead.
MS. FISK: Your Honor, I've not had an opportunity to view
it but the representation from Counsel is that that is identical to the
document initially marked D-26.
THE COURT: Well, he is not using that one, so.
MS. FISK: Then I need to see that one.
THE COURT: Alright, let him first look at it and tell us if that is the
one he looked at.
THE WITNESS: Yes, this is the document that I looked at this
morning.
BY MR. WEINGLASS:
Page 144.
Paul Hoyer, M.D. - Direct
Q. Is the document --
THE COURT: Just a minute. Let the D.A. see it.
MS. FISK: Mr. Weinglass has assured me that that is
identical to the document previously marked as D-26. I am satisfied with
that.
MR. WEINGLASS: I would offer both.
BY MR. WEINGLASS:
Q. Doctor, you said the document that you were shown this
morning has your initials on it; is that right?
A. Yeah.
Q. You don't mean to imply that the original document had your initials
on it, did you?
A. No, only the copy that you gave me.
Q. Oh. So as a matter of fact, you wrote your initials on it just this
morning?
A. Yes, when you gave me the copy, right.
Q. Fine. So --
THE COURT: That's what he said, Counselor. He said that before.
MR. WEINGLASS: No, Your Honor, the record --
THE COURT: He said that before.
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Paul Hoyer, M.D. - Direct
Because you gave him a copy that didn't have his
signature on there and he was questioning whether that was the same one
you gave him this morning. He now has said that's it. Now let's go
ahead.
MR. WEINGLASS: Yes, but, Your Honor, the fact of the
matter is he put his signature on it this morning.
THE COURT: Right, so he would remember what he looked at.
MR. WEINGLASS: Right, okay.
THE COURT: Counselor.
BY MR. WEINGLASS:
Q. Now that you have --
THE COURT: He wanted to make sure you didn't slip him a
different one later on so he had his initials on there.
MR. WEINGLASS: I see.
THE COURT: Now he says that's it so let's go forward.
BY MR. WEINGLASS:
Q. Now having looked at the one that bears the signature
you put on it this morning, does that refresh your recollection?
A. That I saw it this morning. Beyond that, no.
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Paul Hoyer, M.D. - Direct
Q. Beyond that no?
A. Correct.
Q. So having looked at the transcript of your testimony
on June 25th, and having looked at 11-26 now, which is an autopsy report
which bears your signature, you have today no recollection?
A. That is correct, Counselor.
Q. Do you have any problems with your memory, Doctor?
A. Involving things that happened 13 years ago? Yes, I do.
Q. And in the 13 years since, how many autopsies of police officers
have you performed?
MS. FISK: Objection, Your Honor. I thought that was asked and
answered.
MR. WEINGLASS: It wasn't answered, as a matter of fact.
The witness indicated he couldn't answer it so I am asking it again.
THE COURT: He said he didn't know how many.
BY MR. WEINGLASS:
Q. Did you do one?
MS. FISK: Objection.
THE COURT: He has already answered that: He said he doesn't know how
many.
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Paul Hoyer, M.D. - Direct
MR. WEINGLASS: Your Honor, I ask for the same privilege
accorded Counsel this morning with a witness who is having difficulty
recalling.
MS. FISK: Except I was cross-examining a witness and this is Mr.
Weinglass' witness.
THE COURT: Yes, this is your witness. I mean you
understand that. You are calling him as your witness.
BY MR. WEINGLASS:
Q. Have you done one examination of a police officer in
the last 13 years other than the one that's indicated in this case?
MS. FISK: Objection, Your Honor.
THE COURT: He has already answered that and said he
doesn't know. I'm sure he must have done many, many autopsies. And I don't
know that anybody could have a memory. Even I don't remember specifically
every one that I've handled.
MR. WEINGLASS: Please, I would appreciate it if the Court
would not offer testimony in the presence of a witness.
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Paul Hoyer, M.D. - Direct
testimony, Counselor: He has already answered the question.
MR. WEINGLASS: As a matter of fact, Your Honor, my
question wasn't how many autopsies, it was how many autopsies of a police
officer.
THE COURT: I know.
MR. WEINGLASS: That's a very particular question.
THE COURT: I know that but he said he doesn't know, okay.
MR. WEINGLASS: But he didn't say he's done many.
THE COURT: I didn't say he did many either. He said he doesn't
know.
BY MR. WEINGLASS:
Q. Have you done one?
A. I'm done more than one.
Q. Have you done three?
A. I don't have an exact count.
Q. Give me the name of the one that you did other than this one?
A. I don't recall his name at this point.
Q. Did you have occasion since you have been subpoenaed to talk to any
of the attorneys
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Paul Hoyer, M.D. - Direct
representing Mr. Jamal?
A. Yes.
Q. When was that?
A. Umm, yesterday and, yesterday and today.
Q. And did you discuss Mr. Jamal's case and the autopsy
you performed in that case with that attorney?
A. I answered some questions that I was asked.
Q. And so yesterday you did recall the autopsy in this case?
A. No.
Q. You were answering questions without recalling; is that your
testimony?
A. No.
Q. Well, on what basis did you answer questions?
A. That I had, that I had a copy of the transcript, or
what purported to be the transcript. I also, umm, I'm not sure that I was
answering them to the level of certainty that's required in Court.
Q. Are you saying, Dr. Hoyer, that talking to a lawyer in
this case you were giving information that you're not even sure of?
A. That may be the case, yes.
Q. Do you do that as a matter of practice?
A. Ahh, where I occasionally give information
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Paul Hoyer, M.D. - Direct
that I'm not sure of but where I believe it to be accurate.
Q. Did you believe what you said to this lawyer yesterday was
accurate?
A. Yes.
Q. Okay. Let me ask you this. In 1981, December of 1981,
did the Medical Examiner's Office of the City of Philadelphia have X-ray
equipment?
A. I believe so.
Q. And were X-rays used in the performance of autopsy examinations on
occasion?
A. I believe so.
Q. Now referring you to D-26. If you will bear with me
for just a minute. Do you find in your examination of D-26 today that
there was an injury that the deceased officer sustained in the area of the
head?
A. Yes.
Q. And in that report do you indicate whether or not you
had recovered a bullet missile from the skull or the head portion of the
officer?
A. Yes, I did.
Q. And did you indicate whether or not there was a
fragment which you recovered as well as the bullet missile?
Page 151.
Paul Hoyer, M.D. - Direct
A. Yes.
MS. FISK: I object, Your Honor, to the use of the word
fragment. The report refers to a separate piece of lead.
MR. WEINGLASS: Thank you. I will adopt that.
THE COURT: Okay.
BY MR. WEINGLASS:
Q. So you found, so the record is clear, you found a bullet specimen
and a separate piece of lead?
A. Yes.
Q. And you measured that piece of lead, did you not?
A. Yes.
Q. And what was the measurement of that separate piece of lead?
A. 10 by 3 by 2 millimeters in greatest dimension.
Q. Was it your belief then as indicated in this report,
that that separate piece of lead was related to the bullet?
A. Ahh, I don't know what my belief was then.
Q. Well --
A. I mean I have the report in front of me. I could hypothesize based
on the report but I have no
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Paul Hoyer, M.D. - Direct
recollection.
Q. What's your hypothesis, Doctor?
A. That would be based on an expert opinion. I'm not here to offer an
expert opinion.
Q. Well, you have no expert opinion or you're not here for that?
A. I haven't formed one on this, issue.
Q. You haven't formed one?
A. Not on this issue, no.
Q. Oh. Okay. Doctor, in the course of the autopsy you
examined the brain area of the deceased; is that right?
A. Yes.
Q. And you found a bullet in the brain area; is that right?
A. That's what is described in the report, yes.
Q. And you found a separate piece of lead also?
A. Yes, that's described in the report.
Q. Is it your testimony that you don't have an opinion as
to whether that separate piece of lead was related to the bullet?
MS. FISK: Objection, Your Honor. I believe the doctor has
said he could only hypothesize with regard to it.
BY MR. WEINGLASS:
Page 153.
Paul Hoyer, M.D. - Direct
Q. Within a reasonable degree of medical certainty,
Doctor, do you believe that that other piece of metal, lead, belonged to
the bullet?
A. I'm not here as an expert, sir.
Q. Well, you're testifying on the basis of a report that
you gave as an expert. Could you give us the benefit of your opinion?
A. I didn't express an opinion then. I'd have to review
all the available materials to be able to express an opinion now.
Q. I see. And your review of the materials this morning
-- by the way, how long were you in the witness room?
A. From ten, approximately ten o'clock this morning until noon.
Q. So you had two hours with this document, which is D-26?
A. I said all the materials in the case, sir.
Q. Yeah, Doctor, you keep glancing over at the table for
the District Attorney. Would you mind just looking in this direction.
A. I try and pay attention to what goes on in the Courtroom, but I will
direct my attention to you.
Q. What is going on is you are being questioned by myself. So you
should look in this direction,
Page 154.
Paul Hoyer, M.D. - Direct
please.
And in those two hours did you read D-26?
A. Yes.
Q. How many times did you read it?
A. Once.
Q. And in reading it once were you able to form any
opinion as to whether or not that piece of metal, the lead that was taken
from the brain, was related to the bullet missile?
A. Ahh, not, as I just said, I have not been given an
opportunity to review all the materials in the case. And I would choose
not to form opinions until I've reviewed all the available
information.
Q. Right. What other information would you want to review, Doctor?
A. Photographs, the full file of the Medical Examiner's
Office, any expert reports that are available.
Q. And you would review those materials if they were made available to
you?
A. If, if I were required to do so I would.
Q. Okay. Where are these materials ordinarily kept?
A. Ahh, photographs are normally kept, filed in
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Paul Hoyer, M.D. - Direct
the record room of the Medical Examiner's Office. Expert
reports could be in the Medical Examiner's files, it could be in other
places, I couldn't specify --
Q. But when you complete an autopsy, you then turn the
material, the written materials that you've generated over to a file in
the Medical Examiner's Office?
A. Yes.
Q. And that file has a name on it, does it not?
A. Yes.
Q. It's the name of the deceased?
A. Yes, it does have that name.
Q. And if you had tape recorded during the course of your autopsy, that
would be in there as well?
A. No.
Q. Why would that not be?
A. Because the recordings are, the tapes are routinely erased and
reused.
Q. Well, are you saying, Doctor, that the Medical
Examiner's Office erases the tape you made in the course of an
autopsy?
A. Absolutely.
Q. That's as a matter of practice?
A. Yes.
Page 156.
Paul Hoyer, M.D. - Direct
Q. Are the X-rays saved as well if there were X-rays?
A. Ahh, X-rays have been saved in an irregular fashion and are not
saved in an organized file.
Q. What do you mean by that?
A. The last time I saw X-rays they were arranged in a giant heap.
Q. In a giant heap?
A. Yep. Exactly.
Q. You mean there's just a stack?
A. Yep.
Q. And they don't take the X-rays and put them in the file of the
deceased?
A. No, they do not.
Q. Do you know -- strike that. If you find a bullet and
what appears to be separate piece of lead with the bullet, is that an
instance where you might X-ray, for instance, a brain in order to see if
there are other fragments in the brain?
A. I'm sorry, are you asking about my practice now or my practice
then?
Q. The practice in December of 1981.
A. Ahh, my vague recollection is that we did not.
Q. You would not X-ray?
A. That's correct.
Page 157.
Paul Hoyer, M.D. - Direct
Q. And why would that be?
A. Didn't have time, didn't have resources.
Q. Just a question of time and money; is that right?
A. That's correct.
Q. But --
A. Not -- I didn't say necessarily money, I said resources.
Q. Resources. But as a matter of medical practice, you
would agree, would you not, Doctor, that if the resource were available,
it would be best to X-ray a head where there is an indication of two
fragments found in the head?
MS. FISK: Objection, Your Honor, as to what would be best
and what would be perfect. It is all wonderful but that is not the
question or the issues in this hearing.
THE COURT: Can you answer that?
MR. WEINGLASS: Pardon?
THE COURT: Do you want to answer what she's saying?
MR. WEINGLASS: Yes.
THE COURT: No, answer what she said.
MR. WEINGLASS: Yes, it's our contention that the Medical Examiner's
report in
Page 158.
Paul Hoyer, M.D. - Direct
this case, which was turned over to the defense, was so
incomplete and deficient that it amounted to a Brady violation and
possibly evidence of prosecutorial misconduct. So I'm questioning the
doctor on why what was acceptable medical practice was not followed in
this case.
MS. FISK: And I object, Your Honor. The doctor has not
testified that he did not do something which was proper or standard
procedure. What he has testified to is the standard procedure in 1981 was
not to take X-rays under these kinds of circumstances. Now, whether in a
perfect world they would be done does not establish whether or not it was
intentionally not done in this case. The doctor's already testified as to
the standard practice in these kinds of procedures back at that period of
time.
MR. WEINGLASS: He has testified that it was not done
because of lack of resources, not because the Medical Examiners didn't
think it was necessary or important, or that it was consistent with proper
medical standards. But it was not done because there wasn't resources. And
that fact has infected this entire case and
Page 159.
Paul Hoyer, M.D. - Direct
that's what we are trying to show. That Mr. Jamal's
attorneys were not given the information in 1981 and, two, that they were
entitled to, because of lack of resources, because of determinations made
by the Police Department, the District Attorney's Office and other
experts.
We now know that the Medical Examiner's report was
deficient. We now know the Firearms report was deficient. We now know the
polygraph information was hidden. And we know a number of other things.
And this is part of it.
THE COURT: As I told you before, it was not admissible.
It was not admissible, period. So you are going with a red herring here. I
wouldn't have admitted it even if they had it. I wouldn't let the D.A. use
it, I wouldn't let the defense use it. So to argue that is silly. You are
beating a dead horse on that issue. I told you it was not admissible,
period. The Court would not have admitted it even if they had it so why
are we going into that?
MR. WEINGLASS: Your Honor admitted it
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Paul Hoyer, M.D. - Direct
in this hearing.
THE COURT: Well, because nobody objected to it. And it
was admitted for a limited purpose. We don't have a jury here. I would not
have admitted it at the time of the trial. That's the issue. That's the
important issue. Not whether I heard about it now. It was admitted only
for a limited purpose only.
MR. WEINGLASS: You only admitted one side we tried to put in.
THE COURT: No, I admitted it for both sides. It was
admitted for a limited purpose only. Period. And it would not have been
admissible at the time of the trial. So why are we going into that?
MR. WEINGLASS: Okay, I will move on.
BY MR. WEINGLASS:
Q. In any event, your medical record, your Medical
Examiner's report indicates only two pieces of metal that were found in
the deceased's brain; is that correct?
A. Yes.
Q. And you will allow, will you not, Doctor, that there
might have been others that were not picked up because the head was never
X-rayed?
Page 161.
Paul Hoyer, M.D. - Direct
MS. FISK: Objection, Your Honor: That calls for speculation.
MR. WEINGLASS: He is an expert.
THE COURT: Yes, but even experts can't speculate.
BY MR. WEINGLASS:
Q. In the course of your work, when you find two pieces
of metal in the brain of an individual, do you, consistent with the
standards of medical certainty and medical science, look to see if there
are other fragments in the brain?
(Pause.)
A. I, at all times I attempt to do careful and though
autopsies, which would include looking for bullets and bullet fragments,
however many are present.
Q. And you would be assisted in that search, would you not, Doctor, if
you had an X-ray?
MS. FISK: Objection, Your Honor: It calls for speculation.
MR. WEINGLASS: No, that does not. If the doctor knows
whether an X-ray will help him find a fragment.
THE COURT: I thought he said he didn't use one at that time. So what
are we
Page 162.
Paul Hoyer, M.D. - Direct
going through this for?
MR. WEINGLASS: He said he didn't do it to his knowledge.
THE COURT: So he didn't do it, period.
MR. WEINGLASS: But I don't know.
BY MR. WEINGLASS:
Q. Doctor --
MR. WEINGLASS: Let me just follow up on the Court's question.
THE COURT: Not my question.
BY MR. WEINGLASS:
Q. Do you have a recollection now of whether or not you used an X-ray
in this autopsy?
A. Not specifically, no.
Q. So you might have?
A. Anything is possible.
Q. But you might have?
THE COURT: That's what he said: Anything is possible, Counselor. Now we
are really speculating.
BY MR. WEINGLASS:
Q. Now, we are not talking about anything, Doctor, we are
talking about you finding two pieces of metal in a deceased's brain, and
do you think as a
Page 163.
Paul Hoyer, M.D. - Direct
matter of practice you would have taken an X-ray to see
if there were other pieces that could be located?
A. At that time it would not have been my practice to X-ray this type
of case.
Q. And that's because of resources?
A. In part.
Q. This type of case, you're talking about a police officer who was
shot?
A. Counselor, every person that's shot is equally
important. Every case requires the same level of care and
thoroughness.
Q. And that level of care in your expert opinion requires
that an X-ray be taken when fragments are found in the brain, does it
not?
MS. FISK: Objection, Judge. I think we are going in
circles. I believe that question has been answered, the doctor has
answered it.
THE COURT: I think he has answered it, all right. That is
the kind of argument that you give to the Court.
BY MR. WEINGLASS:
Q. Now, Doctor, did you find indications of an exit wound on the
deceased in the area of the neck?
A. There is an exit wound described in the
Page 164.
Paul Hoyer, M.D. - Direct
autopsy report.
Q. Now, do you recall, Doctor, when you testified in this
case you indicated that the report was in effect wrong because when you
were on that stand testifying and looking at photographs you found a
second exit wound? Do you recall that?
A. No.
Q. Has that ever happened to you since, that you have
testified in a case where while on the stand testifying you noticed for
the first time that there was a second exit wound that's not in your
report?
MS. FISK: Objection, Your Honor, as to what has happened in any other
case.
THE COURT: I will have to sustain that.
MR. WEINGLASS: Testing his recollection. This is the only time --
THE COURT: You will have to save that, Counselor. I will
have to sustain it, Counselor. I will have to sustain it. I am only
interested in this case.
MR. BURNS: The question also assumes facts not in
evidence. The witness did not testify that there was an exit wound
separate from the one he testified to.
Page 165.
Paul Hoyer, M.D. - Direct
MR. WEINGLASS: Fine, let's look at the transcript.
Could I have the transcript returned, please.
THE COURT OFFICER: (Handing).
(Pause.)
BY MR. WEINGLASS:
Q. Okay I with respect to page 172: Do you remember being
asked this question by Mr. McGill? Well, in your entire review of the
report, and of your findings in reference to the post-mortem examination,
did you find any other exit wounds around the neck area, and if so
where.
MS. FISK: I'm sorry, Counsel, what is the page you are at?
(Discussion was held off the record at this time.)
MS. FISK: Thanks.
MR. BURNS: For the record, that's page 169.
THE COURT: 169. Okay.
BY MR. WEINGLASS:
Q. Answer: Okay I in reviewing the slides, the Kodachrome
slides of this case, there is a second, smaller exit wound on the interior
surface of the
Page 166.
Paul Hoyer, M.D. - Direct
neck, a little above and a little closer to the midline
from the major exit wound. And then there is an objection because that
doesn't appear in your report.
Does that refresh your recollection, Doctor, that when
you were on the stand you revealed for the first time a second exit wound
that's not contained in your report?
MR. BURNS: Objection: That is not what the record says. The man was
asked a question.
BY MR. WEINGLASS:
Q. In response to a question that you were asked, did you
reveal for the first time a second exit wound?
MR. BURNS: Objection, Your Honor. The question wasn't answered.
THE COURT: He said there was an objection. Did I rule on the
objection?
MR. WEINGLASS: Your Honor, there was an answer, Counsel's
in error. In reviewing the slides, the Kodachrome slides of this case,
there is a second, smaller exit wound. The witness testified to that
fact.
BY MR. WEINGLASS:
Page 167.
Paul Hoyer, M.D. - Direct
Q. Now having been told that, Doctor, having that
transcript read to you, did you in response to a question reveal a second,
smaller exit wound that does not appear in your report?
A. That information appears in the transcript, I have no recollection
of it.
Q. You have no recollection of it?
A. That is correct.
Q. Would you say, Dr. Hoyer, that it is somewhat
irregular to testify about a second exit wound when a report of a Medical
Examiner over your signature only indicates one exit wound in the
neck?
MS. FISK: Objection, Your Honor, as to whether or not it is
irregular.
THE COURT: I will sustain that. If you could somehow
rephrase your question. You brought it out that that's what he testified
to, fine. Okay. I don't know the relevancy, but.
BY MR. WEINGLASS:
Q. How many exit wounds are in your report, in the neck of the
officer?
A. There's one, there is one exit wound described.
Q. One?
A. Yes.
Page 168.
Paul Hoyer, M.D. - Direct
Q. Do you recall now, having heard my re-reading of your
testimony, that when you testified in this trial you reported a second,
smaller exit wound?
A. I do not.
Q. You don't remember that?
A. That is correct.
Q. But if you did so testify, wouldn't it be irregular,
Doctor, for your report to only report one exit wound and for your
testimony to indicate there is a second?
MS. FISK: Objection to that question, as to whether or not it would be
irregular.
THE COURT: Unless you could somehow rephrase your question I will have
to sustain the objection.
MR. WEINGLASS: Okay.
BY MR. WEINGLASS:
Q. Doctor, can you explain the discrepancy between what
appears in your testimony and what appears in the Medical Examiner's
report with respect to the number of exit wounds on the officer's
neck?
A. On the basis of the record it appears as though there
was a second, smaller exit wound that was not described in the report. I'm
not sure why it wasn't described in the report but it is obviously
Page 169.
Paul Hoyer, M.D. - Direct
not described in the report. It is a second, smaller exit
wound that is visible in the photographs. And I mean that's what's
there.
Q. Right. Now, would it be fair to say, Dr. Hoyer, that
you have never before or since ever missed an exit wound on a deceased's
body?
MS. FISK: Objection, Your Honor, to what the doctor has done in other
cases.
MR. WEINGLASS: It just goes to how irregular, unusual, inexplicable
this is.
THE COURT: Counselor, maybe so, but I don't know the
relevancy of it. Are you contesting that he died of something other than
the one shot to the head?
MR. WEINGLASS: What I am contesting, Your Honor, is a
very simple proposition. And that is that Mr. Jamal's attorneys were given
a defective, deficient, incomplete medical report. And on top of that,
they didn't even have a pathologist. And this is part of what skewed the
first trial.
THE COURT: Well, your own pathologist that you brought in
here said he died of that gunshot wound to the head.
MR. WEINGLASS: Yes.
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Paul Hoyer, M.D. - Direct
THE COURT: So what's the problem?
MR. WEINGLASS: Dr. Hayes said that this report of Dr. Hoyer was
incomplete, in error.
THE COURT: Right.
MR. WEINGLASS: And misled the defense.
THE COURT: But he didn't say that he died, that the
officer died of anything other than the gunshot wound to the head.
MR. WEINGLASS: I'm not now contesting that.
THE COURT: Well, that's the only issue here: What caused his death.
MR. WEINGLASS: That's not, with all due --
THE COURT: The fact that there are two exit wounds to the
neck, superficial wounds there, what difference does it make? What
difference does it make here?
MR. WEINGLASS: It makes this difference.
THE COURT: I mean he didn't die of anything else.
MR. WEINGLASS: Your Honor, an
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Paul Hoyer, M.D. - Direct
autopsy, properly done, is a document which tells a story of what
happened.
THE COURT: No, what caused the death, that's all it really tells
us.
MR. WEINGLASS: No, it tells us the position of the parties at the time
of the shooting.
THE COURT: Oh, yes, the position of the parties at the
time of the shooting is really speculative. The examiner's not there. He
could only tell us what the trajectory is and then you could assume
different positions to accomplish that.
MR. WEINGLASS: Right.
THE COURT: But what does that have to do with the
officer? He's shot with a bullet between the eyes which is the cause of
death in this case. What difference does it make if he had six other
wounds to the body that didn't cause his death? That's what caused his
death. He didn't die from pneumonia, he didn't die from exposure, he
didn't die of poison. He died of the gunshot to the head between the eyes.
That's what killed him. That's all.
MR. WEINGLASS: By the way, that's not
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Paul Hoyer, M.D. - Direct
what Dr. Hoyer found. The Court has a difference of opinion with the
coroner.
THE COURT: No, I don't have a difference of opinion.
MR. WEINGLASS: Yes.
THE COURT: I am saying that is the key issue here, that's all.
MR. WEINGLASS: Because that wasn't the coroner's opinion, Your
Honor.
THE COURT: Well, I have --
MR. WEINGLASS: Maybe Your Honor hasn't read the report. But the
coroner's opinion was not the Court's.
THE COURT: I was here for the trial, Counselor.
MR. WEINGLASS: Pardon?
THE COURT: I was here for the trial. And I don't know why
you're bringing him in here about this issue. The proof of claim that you
give me here is he will testify about what equipment was there, what is
the normal practice, and whether he retained any bullet fragments from
Officer Faulkner's head. Well, okay. That's what you said here
(displaying). I don't know where else you are going.
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Paul Hoyer, M.D. - Direct
MR. WEINGLASS: We'11 get right to the point that the Court just
raised.
THE COURT: I wish you would. I wish you would get right to the point on
all the issues.
BY MR. WEINGLASS:
Q. Dr. Hoyer, did you make a finding as to cause of death?
A. Yes, I did.
Q. What was your finding?
A. Gunshot wounds to face and back.
Q. To face and back?
A. Yes.
Q. Was it your expert opinion at that time that Officer
Faulkner's injury to the back was a contributing cause of death?
A. Yes.
Q. Is that an opinion you stand by?
(Pause.)
A. I would say --
MS. FISK: Objection, Your Honor. This is beyond the offer
for which the witness was called. This is also an area in which Dr. Hoyer
was completely and fully cross-examined at time of trial.
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Paul Hoyer, M.D. - Direct
MR. WEINGLASS: By a lawyer who didn't have a pathologist.
THE COURT: Well, you don't need a pathologist for that.
When I practiced law, I defended a man in a murder case and I didn't have
a pathologist. I was able to handle that very well.
MR. WEINGLASS: I don't know when that was and I don't want to
inquire.
THE COURT: Years ago.
MR. WEINGLASS: The Court's age came up on the first day of the
hearing.
THE COURT: A long time ago, Counselor. I didn't have a pathologist.
MR. WEINGLASS: Right, but in this particular case you've
heard from Dr. Hayes who indicated in his expert opinion Mr. Jamal needed
the services of a pathologist.
THE COURT: No, he didn't, he said as to how Jamal was injured.
MR. WEINGLASS: No.
THE COURT: That's what I remember him saying. The record
will show that. He didn't need any pathologist to tell him how the officer
died. Because your expert said without a doubt
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Paul Hoyer, M.D. - Direct
he died as a result of the gunshot wound right between the eyes.
MR. WEINGLASS: And our doctor said without a doubt Dr.
Hoyer was in error when he said that the back wound was a contributing
factor.
THE COURT: So even if he did, even if he did, the cause
of death doesn't change. It's still the bullet wound to the head,
okay.
MR. WEINGLASS: But it goes to the completeness of the
report and the misleading of the defense in this case.
THE COURT: There was no misleading. It was for the Jury
to decide what caused his death. They heard it.
MR. WEINGLASS: They heard it inaccurately from Dr. Hoyer.
THE COURT: Well, whatever the notes of testimony from the
first trial shows, that's what they heard.
MR. WEINGLASS: Right.
THE COURT: Okay.
BY MR. WEINGLASS:
Q. Do you recall, Dr. Hoyer, being questioned about the cause of death
in the first trial?
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Paul Hoyer, M.D. - Direct
A. No, I do not.
Q. Do you have any reason to believe today that your
opinion given in December of 1981 that the wound to the back was a
contributing cause of death was in fact in error?
MS. FISK: Objection, Your Honor.
THE COURT: What is the basis of the objection?
MS. FISK: The doctor has testified that he has no
recollection of the testimony he gave. Under those circumstances I don't
know how he could be asked to answer a question as to whether what he said
was true or not. If he has no recollection as to it, I believe that we are
left with the record from the trial.
THE COURT: That's what I said, the record of the first
trial is what the issue is. Whatever he said then he said. The appellate
court had that to review.
BY MR. WEINGLASS:
Q. Based on your examination of D-26 this morning, do you
have any reason to believe that the opinion you gave that the back wound
was a contributing cause of death was in error?
A. I have no reason to believe it. But as I
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Paul Hoyer, M.D. - Direct
said, I have also not reviewed all the evidence in the case.
Q. Now, Doctor, do you recall, now having read D-26,
whether or not you preserved both the bullet and the fragment that you
recovered?
A. I have no recollection as to that issue.
Q. And reading D-26 does not refresh your recollection
that you preserved the bullet and the fragment?
A. That is correct.
Q. Now directing your attention to... to page 3 of D-26,
Internal Evidence of Injury And Therapy, do you see that portion?
A. Yes.
Q. And in describing the head injury you indicate that
the hemorrhagic tract begins at the entrance of the gunshot wound of the
face and the tract proceeds through the nasal sinuses and along the
orbital surface of the left frontal lobe. Do you see that, Doctor?
A. Yes.
Q. Does that indicate to you, Doctor, that the bullet
entered, went up through the nasal sinus and along the surface of the left
frontal lobe; is that correct?
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Paul Hoyer, M.D. - Direct
A. I have -- no, figuring out exactly how these things
look on a particular person you have to use the best evidence that's
available. I have not been given that evidence to review.
Q. Right, but what do you mean -- just help me with this
-- what do you mean when you say proceeds along the orbital surface of the
left frontal lobe?
A. It means that it's the orbital surface of the brain,
it is proceeding along the bottom of the orbital lobe. Sort of in here
(indicating).
Q. Indicating slightly above the eyes?
A. Well... sort of.
Q. Does that, when you say the bullet proceeded along the
orbital surface, does that mean the bullet penetrated the lobe or
proceeded along the surface of the lobe?
(Pause.)
A. I believe that that means that it travels through the brain at that
point.
Q. Through the brain?
A. Yeah.
Q. Do you recall testifying to this effect in your testimony?
MR. WEINGLASS: Page 38, the left-hand margin.
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Paul Hoyer, M.D. - Direct
BY MR. WEINGLASS:
Q. The hemorrhagic tract begins at the entrance of the
gunshot wound in the phase -- should be face -- received through the nasal
sinuses, along the orbital surface of the left front lobe, it goes through
the left bone of the face, enters the cranial cavity where the brain is
and starts traveling along the surface of the brain.
Now, having heard that reading of your testimony, does
that refresh your recollection that the bullet traveled on the surface of
the brain as opposed to penetrating through the brain?
MS. FISK: I would note, Your Honor, that the answer
continues on the top of the next page where there is further description
by the witness of the wound tract.
BY MR. WEINGLASS:
Q. Just answer this question and we will get to the rest of your
testimony.
A. I have no recollection of the testimony.
Q. Do you know what you meant when you said that the bullet travels
along the surface of the brain?
A. I don't know -- since I have no specific recollection
of that time I can't specifically say what I meant, meant at that time. I
believe what
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Paul Hoyer, M.D. - Direct
that means is that it makes sort of a gutter wound.
Q. It makes sort of a what?
A. Gutter wound.
Q. A gut...?
THE COURT: Gutter wound.
MR. WEINGLASS: I'm sorry, I still don't hear the word.
THE WITNESS: Gutter: G-U-T-T-E-R.
BY MR. WEINGLASS:
Q. A gutter wound?
A. Yes.
Q. What is a gutter wound?
A. That makes, sort of like cuts a groove. Rather than
drilling a hole, it's sort of like an ungrooved hole, it cuts a groove
(indicating).
Q. You were indicating with your fingers but I'm not sure
I understand you. Instead of penetrating directly, are you indicating the
bullet does something else?
MS. FISK: Objection, Your Honor, insofar as this goes
beyond the offer of proof, the issue as to cause of death was not raised
with regard to the offer of proof for Dr. Hoyer.
THE COURT: I read what you said you hoped to prove by him and that
isn't in there,
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Paul Hoyer, M.D. - Direct
so. I don't know where you are going.
MR. WEINGLASS: Okay, let me just try, I will try to make it clear.
BY MR. WEINGLASS:
Q. Doctor, in your testimony and in your medical report
-- I will deal with your medical report since you reviewed that... you've
indicated... that the, that the wound to the head caused instantaneous
disability and death.
MS. FISK: Where are you reading that?
BY MR. WEINGLASS:
Q. Do you recall that?
THE COURT: What page is that?
MR. WEINGLASS: Yes, Your Honor, just one moment.
BY MR. WEINGLASS:
Q. Well, without reference... without reference to the
report, having read the report, Doctor, it's your opinion, is it not, that
the wound caused instantaneous disability and death? To the head.
A. Is that, do you want my lay opinion or my expert opinion?
Q. Your expert opinion.
A. I'm not here as an expert. You told me that.
Q. Pardon?
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Paul Hoyer, M.D. - Direct
A. I'm not here to render an expert opinion. You told me that.
Counselor, you told me that.
Q. Having read your report, you have no opinion as to
whether or not this wound caused instantaneous disability and death?
MS. FISK: Objection, Judge, that was not his answer.
THE COURT: Counselor, he said that you told him that he was not being
called here as an expert.
MR. WEINGLASS: Right.
THE COURT: Now, what are you asking him expert questions
for? You told him he is not going to be here as an expert.
MR. WEINGLASS: At this point, Your Honor, the doctor did testify at the
trial as an expert.
THE COURT: Whatever he said at the trial we already have that, it is on
record, period.
MR. WEINGLASS: Right.
THE COURT: But he said when talking to you you said he
was not being called here today as an expert. Now why are you trying to
ask him questions about his expert opinion?
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Paul Hoyer, M.D. - Direct
MR. WEINGLASS: Because he was qualified as an expert at the trial.
THE COURT: I know that but you told him he wasn't going to be called
for that purpose.
MR. WEINGLASS: I never talked to him. I never talked to him.
THE COURT: Well, whoever talked to him. Somebody from your staff talked
to him.
MR. WEINGLASS: That doesn't mean that we cannot now ask
that he be qualified as an expert. He is here, he testified at trial as an
expert.
THE COURT: I know that but then he had more material with him and he
looked over more material.
MR. WEINGLASS: I'm only asking him, having read D-26, does he have an
expert opinion.
THE COURT: Well, what does D-26 say about that?
MR. WEINGLASS: That is his medical report.
THE COURT: What does it say about that?
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Paul Hoyer, M.D. - Direct
MR. WEINGLASS: It describes the wound in detail.
THE COURT: Okay, what does it say?
MR. WEINGLASS: It describes the wound which we have just
gone over as a bullet shot to the head and it describes where the bullet
went in the body. And I'm asking him, having read his own description of
the path of the bullet and the nature of the wound, in his expert opinion
did that produce immediate death.
THE COURT: Does he say that in the report?
MR. WEINGLASS: He said it at trial under oath.
THE COURT: I know that. He is saying he doesn't remember
what he said at trial, Counselor. But you are talking about the report now
that you gave him to read.
MR. WEINGLASS: Yes.
THE COURT: Is there anything that you want that is in the report? Ask
him about that.
MR. WEINGLASS: Having read the report I now ask him if that caused
instantaneous death.
BY MR. WEINGLASS:
Page 185.
Paul Hoyer, M.D. - Direct
Q. Do you have an opinion on that, Doctor? Don't look at
the prosecution's table, please. I'm asking you the questions. Did that
cause instantaneous death?
A. Ahh, as a lay person I would say a bullet through the brain would
kill, yeah.
Q. Pardon?
A. I haven't had an opportunity to review the full, all
the records that are available. You know, preliminary reading would
suggest that this is an immediately disabling and immediately lethal
injury. That is an expert opinion.
Q. That's what the report suggests?
A. The report does not have that opinion in it. You've asked for an
expert opinion.
Q. And that's your present expert opinion?
A. Yes.
MR. WEINGLASS: If I may have just a moment.
(Discussion held off the record
between defense
Counsel.)
BY MR. WEINGLASS:
Q. Doctor, looking at the front page of D-26, your
report... toward the lower, left-hand corner of page 1 do you note under
comments that this officer
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Paul Hoyer, M.D. - Direct