Verfahren gegen Mumia Abu-Jamal

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

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PCRA Hearing

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September 11, 1995
Courtroom 307, Criminal Justice Center
Philadelphia, Pennsylvania

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BEFORE:   THE HONORABLE ALBERT F. SABO, J.

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

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(At 10:13 a.m. the hearing was convened in
the presence of the Court and the attorneys.)

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THE COURT: As I have indicated to you the last session, I'm allocating two hours to each side. During the presentation, I don't want any interruptions or objections or anything of that nature. I will caution you when you have 15 minutes left, 10 minutes left, five minutes left, and one minute left.

Are there any problems?

MR. WEINGLASS: No problems. I just wanted to indicate to the Court for its benefit the order of presentation of the defense. Mr. Williams will start for the defense. He will be followed by Miss Wolkenstein, who will be followed by Mr. Piper, and then myself. We would like to reserve approximately 30 minutes for rebuttal, so we will be using one and a half hours in our straight presentation, and 30 minutes for rebuttal.

THE COURT: Commonwealth, are you doing the same thing?

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MR. BURNS: Just me, Your Honor.

THE COURT: Whatever you want to do. Do you want rebuttal too?

MR. BURNS: No, I don't think that will be necessary, Your Honor.

THE COURT: You will use the whole two hours?

MR. BURNS: I don't think I'll take that long. I don't know how long I will take. If the Court wants to allow rebuttal or not, that is up to the Court, I really have no position on that.

THE COURT: All right. Just so it is two hours in total, okay. Who wants to go first?

MR. WEINGLASS: Mr. Williams.

THE COURT: According to my watch, it's 10:14.

MR. WILLIAMS: Good morning, Your Honor. And may it please the Court, let me begin first, well, first let me tell the Court that I will be addressing three issues that are expanded upon in a supplemental memorandum of law that has been filed with the Court this morning. And those three issues are the issues

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of the mitigation witnesses; the issues surrounding and pertaining to the testimony of officer, or Mr. Gary Wakshul; and finally, the testimony relating to Robert Chobert.

Now, first, on the mitigation witnesses, which we opened this hearing with, I want to put that issue in proper focus for the Court. And the way I think we put that issue in proper focus is this: That no human being in this country, for as long as this country has had the death penalty, has been sentenced to death without presenting any mitigation witnesses who has the reservoir of talents, the devotion to social justice, and the soulful humanity of this man that sits before you. I don't believe that human decency -- and legal advocacy should never breach human decency -- permits anyone to come into this Courtroom and argue that the failure to educate a jury in a sentencing phase of a capital case, who has a client with the kind of talents and soulful humanity as Mr. Jamal, is tolerable in a humane society. That argument just cannot be made in a humane society. And because human decency does not allow it, it's not surprising that the law

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does not countenance it.

I won't go through the litany of cases -- I think the supplemental memorandum does that -- on the clear Constitutional obligation of a trial attorney to educate a sentencing jury about the full scope and depth of the humanity of his client. That obligation is fundamental, and Your Honor knows that. But I issue this challenge -- and I think it's a fair challenge and it is an appropriate one -- to the Commonwealth, to find just one case -- we've talked a lot about finding cases during the PCRA hearing -- but I issue that challenge to find one case that even comes close to this one. Because it's our position that the prosecution, if it wants to defend the death penalty here in this case, given what we know about this man, and given what was not presented to that sentencing Jury back in 1982, it will have to advocate for a new low, a new low in our criminal justice system. And I don't think that my brothers at the bar here will do that.

Now, the reason why I don't think the Commonwealth will do that is because during the hearing, Mr. Grant, in all fairness, stated,

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incorporating the points in his question, that Mr. Jamal indeed has immense talents, that indeed Mr. Jamal is dedicated to the cause of social justice. That in fact that dedication is woven into the very fiber of his being.

Mr. Grant admitted that in the hearing. And I think that is an important point, and probably the most important point surrounding all of this testimony. Because no one can dispute the power and the scope of those mitigation witnesses.

But what really is significant in that testimony and Mr. Grant's admission is what happened at the penalty phase in the trial back in 1982. The prosecutor there, unencumbered with this powerful evidence at the trial, was given free rein, was given free rein to characterize Mr. Jamal as he wished. And how did he characterize Mr. Jamal? I think the record is clear that he spewed forth really a caricature, a caricature of Mr. Jamal that had no relationship to the reality of who he is as a person.

So the Jury really didn't sentence Mr. Jamal, the human being with that soulful

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humanity, the dedication to justice, the talented journalist. What they sentenced was a fictional being, a caricature. And so the true significance of this issue, in my humble view, is what it revealed about the stridency of this prosecution. The zeal to win led the prosecutor back in 1982 to use his power in an ignoble way, and that is to distort the truth.

Mr. McGill knew about Mister, about the qualities of Mr. Jamal. He admitted that Mr. Jamal was the most intelligent Defendant he had ever had. He could not have been blinded to the fact that Mr. Jamal was dedicated to social justice. But he used the fact that Mr. Jackson in his ineffectiveness did not present a single mitigation witness to educate this Jury about who it was the Jury was asked to condemn with death. He used that gap in the evidence to advocate for the death of a fictional being. And that is intolerable.

The uncontroverted evidence is that on this record Mr. Jackson admitted that there was no tactical reason not to present mitigation witnesses. Nor could there be. There is just no rational reason that anyone can fathom why

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you would not educate a sentencing Jury about the qualities of this man. And I defy anyone to conjure up any rational reason for that. No attorney, I don't believe, in any capital case, had quite the arsenal that Mr. Jackson had on that issue. And to not present one mitigation witness really speaks volumes about Mr. Jackson's preparation to proceed to trial in this case.

Now, I talked about the scope and power of that testimony. I think our supplemental memorandum of law lays that out. The record bears that out. I won't encumber the record now with that. But I do want to underscore that that evidence was merely suggestive, not exhaustive. And I also want to underscore that when you read the record, the testimony of these mitigation witnesses, that these witnesses did not speak in generalities. They didn't just skim the surface, but I think that each one of these witnesses spoke from deep inside themselves. They laid bare their own souls in trying to educate this Court about the qualities of this man sitting before you. And I think the scope and power of that testimony is

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something that this Court must consider in evaluating this claim.

And so for this, for this case, Your Honor, to go awry on an issue that's so fundamental, so elementary, really tells us something about, about Mr. Jackson, about how he handled this case. And it tells us something about Mr. McGill, about his zealotry to win it at all costs, something that we don't countenance in prosecutors. That he was able to brazenly distort the facts in this case, to put forth a caricature in order to secure a sentence of death, that really does tell us something about the prosecution in this case. Therein lies the true Constitutional significance of that testimony. Because no one can dispute that a Jury should have heard these mitigation witnesses, they should have been educated about this man Mr. Jamal. That's a given.

But we've got to go one layer deeper and look at what it reveals about this prosecution. And I think that is a proper segue into the second issue, which is the issue surrounding officer, Mr. Gary Wakshul. The issue or the issues surrounding Mr. Wakshul

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tells us something about the quality of justice in this Court back in 1982, no less than the absence of any mitigation witnesses. I think it is not an exaggeration to say that the confession evidence was the most compelling evidence in the case. And even though it was the most compelling evidence, it was also the most impeachable. And it was the most impeachable because it was false, it was bogus, it was perjurious.

Now let's leave aside why Mr. Wakshul did not testify in 1982. The Constitutional obligations on the prosecution is clear. The prosecution has an obligation not to present such inflammatory evidence such as this confession when it knows that that evidence is as dubious as this confession was. It has an obligation not to deceive that Jury.

We've already seen that Mr. McGill was willing to deceive that Jury in the penalty phase; and that's why I emphasize that we have to look at that issue in terms of what does it say about Mr. McGill. Here again we see another instance of Mr. McGill willing to deceive this Jury by putting forth evidence of a confession

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that any rational person would know just smacks of bad faith. It has no place in a Courtroom like this.

And here the prosecution did more than just propagate and then argue from bogus evidence. It abided, it abided with the absence of that witness that would have shown that it was bogus, that it was perjurious. So we have a double-barreled sort of misconduct. The propagation of false evidence and then the abiding of the absence of evidence to show precisely that it was false evidence. I think that is unprecedented.

But let's go one layer deeper, Your Honor. Because I don't think anyone, any rational person could see that this confession is genuine, but let's go one level deeper. There are certain types of evidence, Your Honor -- and we all know this, even I as a young lawyer know this -- that there are certain types of evidence to blow the lid off of a case. And it's rare for a defense counsel to have that kind of evidence that literally blows the lid off a prosecutor's case, but Wakshul's testimony is that sort of evidence. And that's why the

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Jury should have heard that evidence. It goes beyond simply refuting the confession. It casts a pall over the entire prosecution case. Because it proves the lie to the confession and it proves how low the prosecution was willing to go in this case.

Now, I just had the opportunity this morning to briefly skim the Commonwealth's proposed findings of fact. And on page 17 the Commonwealth posits a very curious argument. The Commonwealth says that Officer Wakshul withheld evidence about this confession because a brother officer, Gary Bell, allegedly -- or not allegedly, actually he admits to this -- made a death threat to Mr. Jamal. And Mr. Bell said if he, that is Officer Faulkner, dies, that you die. And the Commonwealth suggests to this Court in defiance of the record in this case that because Mr. Bell made that unconscionable death threat to Mr. Jamal, that Officer Wakshul withheld evidence of the confession from investigators in order to protect his brother officer.

That's an interesting theory for two reasons. First of all, it's interesting because

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Mr. Wakshul never proffered that explanation himself. What was the explanation that Mr. Wakshul proffered? His explanation was that despite the fact of a confession of the sort that is attributed to Mr. Jamal -- it is a weighty, is a weighty confession, it's a stunning confession -- that 64 days later that all of a sudden it occurred to him that that confession had some importance. That it only had importance on that 64th day. That was his explanation. He did not say that he was trying to protect a brother officer. And I'll tell you why he doesn't say that. Because it makes no sense. In fact, in fact I think he realizes what anyone would realize in this case -- and this is what I mean by it blows the lid off the prosecutor's case -- that you have an officer, Officer Bell making a death threat, a very grave matter. And how best to respond to that? The way you respond to that is well, let's concoct a confession. So that way Mr. Bell isn't punished for making this death threat. Let's put this death threat as a response to a very disturbing confession by a suspect.

So in fact, contrary to what the

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Commonwealth tries to do in these findings of fact, in defiance of the record, it actually gives the powerful context of how this confession was concocted. Because certainly no one, no one would blame an officer, after hearing a suspect confess in the fashion that they say Mr. Jamal confessed, would then in a fit of anger say this to Mr. Jamal. That's understandable. So if indeed it did happen, Mr. Bell would have gone to the highest mountain top and would have yelled out to all the world that Mr. Jamal made that confession. And the fact is Mr. Bell didn't do that; it was only after they came to realize that Mr. Jamal had the audacity to make an allegation of police brutality that they decided that they're going to fix him and fix him good: They're going to put a confession on him.

And I think Mr. McGill, because I have to believe that Mr. McGill is a rational man with a rational intellect, knew that this confession was dubious. Just as he knew that his caricature of Mr. Jamal was dubious. But nonetheless, pressed that issue with the Jury. And that is unconscionable.

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It exposes, really, the corruption in the prosecution's case. Based upon the four corners of this record. Because, as I said, to fabricate a confession is as low as you can go. The record is clear about Mr. Wakshul's availability -- and I say this, Your Honor, with no disrespect to the Court -- but this part of the testimony implicates the Court. It implicates the Court in this spectacle of injustice. Mr. Wakshul received instructions or was advised not to leave the jurisdiction. Notwithstanding that, he was given vacation time. Mr. Wakshul interpreted that advisement, that instruction that he should stick around. That's at page 118 of his testimony. And in fact at page 102 of his testimony he did stay around. He stayed around until the case was over. And in fact, at page 142 of his testimony, Your Honor, the Court acknowledged that he was around.

As to the true irony in all of this, the fact that makes this entire affair a spectacle of injustice, is that in the trial Mr. Jackson asked the Court, despite the fact that Mr. Wakshul is on vacation, Mr. Jackson said

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well, let's see if he's in town. And regrettably, this Court, instead of acceding to that very, very modest request, the Court says that we will not go looking for anybody now. When all of the evidence now indicates that had this Court acceded to that very modest request, Mr. Wakshul would have testified in front of that Jury with all the explosive impact that that testimony would have had.

And in fact, we saw during the month of July and August this year how quickly the prosecution can bring witnesses in. How expeditious they can be. Witnesses were brought in on late notice, witnesses were called at home, witnesses were picked up by law enforcement and driven to this Courtroom. This was, it is quite a contrast -- let me put it that way to the Court -- it is quite a contrast when the Commonwealth wants a witness in this Courtroom what kind of efforts can be made to bring those witnesses in. And then you have the one most explosive witness in this trial to really blow the lid off the prosecution's case, the Court doesn't grant a modest request and the Commonwealth makes no effort to bring that

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witness in, even though that witness was in the jurisdiction of Philadelphia.

Now let me go to the third argument, which again bespeaks about what kind of prosecution Mr. Jamal faced in this case. And I'm referring now to Mr. Robert Chobert.

Your Honor heard testimony about a certain understanding that Mr. Chobert had. Mr. Chobert, Your Honor will recall, was a cab driver. And he was a cab driver who drove without a license. And that of course violates the law. And in fact on the very morning in question he was driving a cab without a license.

So I think we should analyze what I will refer to as the Chobert issue with two frames of reference. The first frame of reference is we have to look at Mr. Chobert's state of mind back in late 1981 and 1982. And then we have to look at the second frame of reference of the Jury's evaluation of the credibility of this witness.

Now the state of mind. We have here a very vulnerable witness. A man who's livelihood hinges upon his driving a cab. And upon his desire to drive a school bus. Yet he was

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driving without a license, yet he was driving with a record of DWI convictions. Yet he was driving with probationary status over his head. And that livelihood was thus in jeopardy when he got enmeshed in this entire episode, and his freedom was at stake by virtue of his probationary status and he was vulnerable for that reason. So it's not surprising, Your Honor, that he raises the issue about his lack of a driver's license.

It was not the prosecution who went to this witness and offered this witness a possible deal to testify. And we know the case law is legion that when the prosecution extends an offer to a witness, that that triggers a certain obligation on the part of the prosecution. Here we have the converse: We have the witness reaching out to the prosecution. And I think that raises a more compelling circumstance because it speaks to the state of mind of the witness directly.

And I'll only cite one case in my argument. I cite this case, and it is at page 44 of the memo of law, the supplemental memo of law. It is an 8th Circuit case. Ruder versus

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Solomon. Because I anticipate that the Commonwealth will argue well, let's analyze this issue in terms of the quality and nature of what Mr. McGill said to Mr. Chobert. But I think when you analyze it in that fashion you're asking the wrong question. The question this Court has to ask itself is what was the state of mind of Mr. Chobert. And it was Mr. Chobert who reached out to the prosecution.

What it suggests is that Mr. Chobert believed that he had something of value, and that with something of value in his possession he can make a deal with the prosecution that he can maybe get something for himself. Something that he testified was important. And that's why he solicited from Mr. McGill help to get a driver's license. He was the one that tried to strike the bargain. And that's precisely what happened in Ruder versus Solomon, the 8th Circuit case (displaying). That witness reached out on his own initiative without any promise by the prosecution. He reached out and sought a sentence commutation. And the Court analyzed that issue just as I am suggesting the Court must analyze this issue. They analyzed it in

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terms of the witness' state of mind, that that witness reached out for a benefit. No less than wrong question here. We must keep the focus on Mr. Chobert.

So do not let the prosecution in this argument suggest to you that you should ask the Mr. Chobert.

Now, what was Mr. McGill's obligation? The very asking by Mr. Chobert of the driver's license, the assistance in getting the driver's license, triggers the Brady obligation in and of itself. And a conscientious, fair prosecutor at that point should tell the witness this is not a forum to bargain, to negotiate, you are to tell the truth.

THE COURT: 25 minutes.

MR. WILLIAMS: Thank you, Your Honor. But Mr. McGill instead feeds in to Chobert's efforts to bargain for the value that he had, the power that he had over the prosecution of being a Commonwealth witness. He feeds into it by saying I'll give you that assistance. Which goes beyond the Ruder case. And it goes beyond any accepted obligation, accepted norms of behavior for a prosecutor.

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So the first frame of reference is the state of mind of Chobert; and now the second frame of reference is the Jury's evaluation of it. And we know that the Jury -- the case law is clear -- must be given a full picture of a witness' motivation to testify. That also is elementary. And had there been a robust cross-examination of Mr. Chobert, had his motivation and interest been revealed at this trial, then perhaps this added piece of evidence would be considered cumulative and perhaps on that ground we could affirm this judgment. But that's not the case here and Your Honor knows it. Mr. Chobert's DWI record was kept from the Jury. Mr. Chobert's probationary status was kept from the Jury. And now we know that this most potent piece of evidence regarding his state of mind, regarding his desire to enhance his livelihood, that also was kept from this Jury. So this Jury was never exposed to the true bias and interests of this witness.

And was this an important witness? You bet. All you have to do is look at the prosecution's closing argument, where he emphasized, he emphasized with this Jury that

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this witness had no interest to come in and share his testimony towards the prosecution. And here again, no less than in the mitigation phase, no less than in terms of the Wakshul issue, the confession issue, here again we have a sanitized characterization of an important prosecution witness. And it was a false portrait of that prosecution witness.

So in conclusion to these three issues that I have addressed: Each error implicates the conduct of the prosecution. And that's what's important here. Jackson's failure to present any mitigation evidence was exploited by the prosecution in the form of a caricature of this man on trial for his life. Jackson's inability to secure Mr. Wakshul's attendance permitted the prosecution to gain advantage with a false confession. The withholding of Mr. Chobert's understanding of his relationship with the prosecutor permitted the prosecution to present a false picture of this witness' involvement and interest in this case.

So I say this to Your Honor: One of the first lessons I ever learned as a lawyer from Mr. Weinglass, my mentor, was that every

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case is a test of the integrity of the system. And this case also is a test of that integrity. And you, Your Honor, sitting on that bench, you are a guardian of that integrity. And so I'm asking the Court to perform that function as the guardian of the integrity of this criminal justice system.

Thank you, Your Honor.

MS. WOLKENSTEIN: Your Honor, for almost 13 years the prosecution has promoted the false representation that the evidence in this case is overwhelming. In fact, it is more like a house of cards that has been propped up by prosecutorial and police fabrication, coercion, alternatively coercion and promises made to witnesses. And misrepresentation, destruction of evidence.

I do not need to speak to the first prong of the prosecution's case, the alleged confession by Mr. Jamal, because that has been gone through absolutely fully by Co-counsel. That confession has been so discredited, even, I know, in the prosecution's own minds, that in public statements to the public trying to justify and hold up this prosecution in the past

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period, the District Attorney has negated to even so mention the existence of said confession. It withstands absolutely no scrutiny at this point.

The other prong is the question of physical evidence, the allegation or the so-called proof that the Defendant's, Mr. Jamal's gun was found at the scene. The prosecution has long proffered the fact that the so-called testing of this weapon shows that this weapon is consistent -- that is the prosecution's own terms, that is what the record shows -- consistency with the bullet that was taken out of Officer Faulkner's head wound. In point of fact, that representation is totally meaningless. It applies to approximately millions of weapons, over half the weapons that are produced in this country. It demonstrates the type of, the type of, the type of showing, the type of what they call twists so that it has absolutely no bearing whatsoever in scientific terms.

In point of fact, the alleged number of grooves that are also supposed to show some consistency are not supported in any way in the

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record. There is some testimony, totally unbacked up by any bench notes, anything in the ballistics report. In other words, no evidence to support this hypothesis.

Furthermore, and more significantly, unknown to the defense until we began this actual hearing, a bullet fragment, sizable and significant enough to be measured by the medical examiner, was taken from the head wound of Officer Faulkner. That appears, it is mentioned in the Medical Examiner's report. It exists in statements or in physical reality at this point no place else. It is simply disappeared, presumably been destroyed by the prosecution.

Without that fragment, which represents a fundamental destruction of evidence, it is impossible to determine with any reliability the actual caliber of the weapon, the actual caliber of the bullet that shot and killed Officer Faulkner. And as this Court is well aware, the Medical Examiner initially determined, and was put on the report, the autopsy report, that he believed it was a .44 caliber bullet that shot, was used to shoot and kill the officer. There is no basis and ability

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at this point to determine absolutely what this weapon, what this bullet was because of the destruction of the evidence here. And substantial questions are raised as to the absence of clear scientific information as to the caliber, as to the testing of the bullets, as to the lands and grooves, as to the number of grooves. As to whether or not in fact a bullet from Mr. Jamal's gun was used to shoot, or was the bullet that shot and killed the officer.

The other question and the other, the other, ahh, prop, so to speak, of the prosecution's case is the question of witnesses. Co-counsel has dealt with the fact that one of the main prosecutorial witnesses, Mr. Chobert, was entreated and was given inducement to lie. It is clear from the record as stated that he initially said the night of the murder, and his first statement on the scene, that the shooter ran away. That statement was subsequently undermined first to 30 steps, then to a few steps, and then him stating that it was Mr. Jamal who shot the police officer, despite the fact that there is no evidence in the record that supports that he actually saw either

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Mr. Jamal being shot, or he actually saw Mr. Jamal shooting, shooting, shooting Officer Faulkner.

Cynthia White, the other main prosecutorial witness, as we all know, was a young woman who faced some 38 arrests. She was currently imprisoned in Boston at the time of the trial. There is evidence, substantial evidence in the record and new evidence brought forth by the testimony of Robert Greer, that she was actually given police favors in order to testify. No other witness, no prosecutorial witness even saw Cynthia White on the scene that night in close proximity and in any position to be able to see what happened. Cynthia White is given, can be given no credence in terms of her testimony.

Scanlon, another prosecutorial witness, is somebody who clearly misidentified Mr. Jamal when he first saw Mr. Jamal in the police van. He said that Mr. Jamal was the driver of the Volkswagen. And he also admitted that he could not really tell which black male was which in terms of that night.

In other words, the three main

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prosecutorial witnesses, Your Honor: clearly could not identify Mr. Jamal, or their testimony was suspect and is undermined by the fact that the prosecution offered favors and or coercion to these witnesses to change their testimony.

In fact, what happened that night, Your Honor, is that there were at least four, in fact five witnesses that came forward in one way or another and indicated that the shooter ran away. Chobert was one. Another was Veronica Jones, who admitted at the Court, at the time of trial that she had been held for some five or six hours by 6th District police officers and offered the same deal that Cynthia White was offered. That if she would in fact change her testimony as to the fact that the shooter ran away, she would be offered some favors. She in fact did change her testimony. And what is very significant in terms of the prosecutorial conduct in this case is that the information that she had been held for those six hours was withheld from the defense until the very moment that she testified, not allowing the defense to be able to pursue what it meant that this witness was held for some six hours by the 6th

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District police when it was clear she was a prostitute that worked in that area.

It came out a few years later that in fact there was a massive investigation going on of the 6th District police officers and their relationship to the prostitutes and questions of police corruption. In fact, one of the arresting officers, Inspector Giordano, was one of the officers involved in that investigation and was jailed, he was convicted and jailed for those offenses. We were not allowed to pursue the question of Lieutenant Giordano and what evidence he would have and what relationship there was between him and misconduct going back to the time of Mr. Jamal's arrest. The Court quashed that subpoena and would not allow us to pursue this question.

The other people who indicated that night that the shooter ran away was a young college student, Dessie Hightower. And we heard testimony here in this hearing that in fact he believed he was asked to take a lie detector test. It was admitted and it is a clear part of the record undisputed that he was the only witness asked by the prosecution to submit

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himself to a lie detector test, despite the fact that other witnesses had substantial criminal records, this young man didn't. His only crime, the only reason to subject him to a lie detector test is he had the audacity to say to the police that the shooter ran away and to stick to that story. He was told, he testified, that in fact he passed that lie detector test. The prosecution came here in this hearing and said that he had failed a lie detector test, and we were unable to pursue that question fully. The Court quashed and would not let us bring in an expert on the lie detector test, would not allow him to look at the actual test results and to examine them and to present evidence contrary to the prosecution's finding.

The point about Dessie Hightower and the lie detector test is simply this: An act of coercion of a young man who had exculpatory evidence. Evidence of Mr. Jamal's innocence. It was withheld from the defense and he was further subjected to harassment.

As already indicated, he himself was subpoenaed by the prosecution in this case. Another example, I would believe, of misconduct,

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given the circumstances. And he was threatened with arrest even though he was under subpoena from the defense if he did not appear on the prosecution's timetable to be here in Court. Not our timetable but the prosecution's. Again harassment of an exculpatory witness.

The other, the other people who said that the shooter ran away was a young woman named Debbie Kordansky. I don't want to go into this at length. But she came in here and testified that in fact she had seen somebody run away. Run away down Locust Street going east on the south side of the street. And that she had provided that information to the police. And that information was, that information, the key information to get her into Court was withheld from the defense. Her name, her address, her phone number was withheld. And therefore another example of how the prosecution was trying to and did control and undermine the Defendant's ability to present, to present proof that he was not the shooter in this case.

The other witnesses who came forward here were also a witness who contacted the defense during the, during the hearing, a man

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with a criminal record named William Harmon, who contacted defense Counsel. And we attempted to talk with him. We wanted to do further exploration and investigation as to the veracity of all of his representations as to that night. The Court would not provide us the time to do that. And the Court called him as its own witness. Nonetheless, despite those problems he got up and he testified without, without any hesitation and without being impeached that in fact he saw what happened that night and he saw that the shooter of the police officer, or the shooters of the police officer were individuals not Mr. Jamal. And he absolutely described Mr. Jamal appearing after the police officer was initially shot, trying to assist the police officer. And that, and then he ran away, and then the shooter ran away, Mr. Jamal was shot by the police officer, and that it was absolutely clear that Mr. Jamal was not the shooter.

The witness, the seriousness that initially the police took the question of the shooter running away was also seen in the witness Arnold Howard, who also came forward during this proceeding to the defense, and

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indicated that he had been arrested that night. He had been taken from his home in the early morning hours and he had been put into a lineup, questioned for some 72 hours at various places in the City. And he stated that he was being investigated and questioned because his license had been found in Police Officer Faulkner's hand. And he indicated that he was, that the police thought that he, that he had been perhaps on the scene and that he was part of somebody who was running away. And it was only after a period of time and after being put in a lineup when he was able to produce a slip that showed that he was shopping at a Pathmark or some other store at the time of the shooting that he was released.

This indicates a level of intent in terms of pursuing initially the runner, the shooter running away. It also shows the type of harassment of a witness. It also shows the police capacity to do things like submit somebody to a lie detector test, which they do selectively. It also showed that they took, did testing of his hands to see whether or not in fact he had shot, shot the police officer. A

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testing, by the way, which was not done of Mr. Jamal.

The other person who said that night that the shooter ran away was witness William Dale Singletary. Mr. Singletary came forward to the defense some years ago. He indicated then and he indicated on the stand in this hearing that he had been there that night, that he had witnessed what happened. That he saw the police officer shot, shot by a tall man with dread locks that came out of the Volkswagen that was stopped by the police officer in which Billy Cook was also inside. And he saw the police officer shot, he saw Mr. Jamal attempt to assist the police officer, and he saw the police officer shoot Mr. Jamal. He testified unequivocally, without hesitation, that he in fact saw what happened and that Mr. Jamal was not the shooter.

The prosecution's witnesses that they produced in attempt to rebut Mr. Singletary only served to confirm the fact that Mr. Singletary was there. Within minutes he was seen by Officer, Highway Patrolman Vernon Jones on the scene when Vernon Jones arrived within a minute

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or two of the shooting. It is confirmed that he was viewed as some sort of witness to the event because otherwise why was he one of literally only a handful of people taken to the Roundhouse that night. This in fact confirmed that he was interviewed at the Roundhouse.

Vernon Jones also testified that he was asked to provide a statement to the Homicide detectives in which the sole purpose of said statement was to explain the circumstances in which Mr. Singletary spoke to him and what he had to say. There is no purpose to that statement by Vernon Jones except to try to undermine the truth of the situation, which was that William Singletary was there that night, that he did witness what happened that night, and that the attempt by the prosecution at this point a week later was to deny that William Singletary was there and a witness to what happened.

Now, significantly what Mr. Singletary says is as follows. He said that when he got to the Roundhouse and he attempted to tell the police, the Homicide officers what happened that night, that Mr. Jamal was not the shooter, he

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was told that they didn't want to hear anything about that. And when he would write a statement up for them as they requested as to what he saw, including the beating, the grotesque and furious beating of Mr. Jamal by the police officers who arrived at the scene, his statements were ripped up. And when they were ripped up he was told to go and write again. And after they were ripped up again he was told that he was not going to leave unless, he was not going to be allowed to leave and he would be subjected to bodily harm unless he wrote what they told him to. And after some five hours he did sign a statement that he said was not truthful because he had fear of what would happen if he didn't.

And then subsequently he was further harassed, he was literally driven to close down his business and driven to leave, to leave, to leave the City for fear of what would happen to him. That is the treatment of another witness who said that Mr. Jamal was not the shooter. And in fact he was the only one of the witnesses who were described who also said they saw the shooter run away, who said that they were actually in a position to see what happened and

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that Mr. Jamal was not the shooter.

Now, the prosecution has said publicly, has feigned -- this is now District Attorney Lynne Abraham -- has feigned great indignation at the assertion that the defense would assert that Mr. Jamal's conviction was the result of police suppression of evidence, of manufacturing of evidence, of favors, favors and coercion. In short, in more popular terms, a frame-up. Nonetheless, it is very clear that, and it's almost ludicrous for this feigned indignation to take place, because while we were even having this hearing the headlines of the newspapers would be in one instance reporting what was happening in these hearings, and the other instance would show the latest discoveries in the Federal investigation into corruption charges, violation of civil rights in the 39th District, then extending to the Highway Patrol. Now extending to some hundred thousand files, police logs which are being subpoenaed by the Federal investigators. Some six police officers have been indicted, pled guilty. Other police officers, as understood, are going to be indicted. Some 40 or so convictions have been

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reversed, drug convictions; and it looks like there will be some murder convictions further that will be, that will be overturned. That, that there has been behavior, in fact a pattern of behavior in this Police Department which has been allowed to exist by the office of the prosecution, and has not been, and when instances such as the instances presented in Mr. Jamal's case are presented to the Court, have not been allowed to be pursued by the Court. What you can say is that at least through this period of time that covers Mr. Jamal's adulthood, his prosecution, his conviction, appeal, and through this hearing, there has been a pattern of behavior in this, in this, I'm sorry, of this Police Department of one of coercing witnesses who have favorable evidence, trying to suppress that favorable evidence. Very discriminatory action against anybody who indicates disagreement, upset, opposition to police brutality.

And so therefore it is very clear that this case takes place under a microscope. And a microscope that has been attempted to be blurred and blocked by a Court who has not let us pursue

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information that is necessary to uncover even more than we have been able to do so far in terms of the nature of the falsification, the manufacture of evidence against Mr. Jamal.

Significantly, one of the key things that we have not been able to pursue is the question of bias against Mr. Jamal. I will say just very briefly that in fact there are some 600 pages of FBI files that were done with the cooperation, initiation, of the staff of the Philadelphia Police Department of Mr. Jamal beginning in 1960 -- 1968, '69, that this Court refused to allow us to put into evidence. In fact the Court found this to be totally irrelevant to this proceeding. In fact, that showed a massive amount of bias against Mr. Jamal that needed to be pursued, including getting a hold of the police records on Mr. Jamal himself.

In short, what we have here is from top to bottom and each prong of the evidence against Mr. Jamal -- confession, witnesses, and physical evidence and information concerning the bias of this Police Department against Mr. Jamal, who is outspoken as a critic against

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the abuses of the police department, against the unfairness of the Courts here in many ways against minority organizations and individuals -- a system of prosecuting him, suppressing favorable evidence, manufacturing false evidence.

I would state that our position in fact is that not only is this case such as that Mr. Jamal is entitled to a new trial, but the level of misconduct in this case is so great that in fact the charges should be dismissed and Mr. Jamal should be freed.

I want to just conclude by saying that the investigation is ongoing, that people continue to express to us that they have information, and that also withdraw from time to time out of fear. And that I have submitted to the Court -- without going through this in detail -- the various people that we know of at this time who have indicated in some way, either by first notifying the prosecution or notifying defense, that they have information favorable to Mr. Jamal. We are trying to locate these individuals further and to make an evaluation as to their testimony.

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I also want to state at this time that the Petitioner's brother William Cook appeared in Federal District Court in Pittsburgh last Tuesday unexpected, unanticipated by defense Counsel, and indicated that he was willing to assist in his brother's defense. And that he was willing to testify, except that he was very much afraid of that. He had been subjected to threats on his life from the very beginning of the time of his arrest. He said that at the appropriate time he would testify.

And what he said in conversations with Counsel: Made representations that he was at the scene on December 9th, 1981 when Police Officer Daniel Faulkner was shot and when his brother Mumia Abu-Jamal was shot. He further stated, and I believe he would testify, that another black male was an occupant in the car with him. However, Mr. Cook did not identify the individual who was in the car with him. He further stated that his brother Mumia Abu-Jamal did not shoot Police Officer Daniel Faulkner and that another individual, neither Mr. Cook nor Mr. Jamal, shot the police officer. He would not identify or did not identify the name of the

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individual who shot Officer Faulkner. He further stated that Police Officer Daniel Faulkner shot Mumia Abu-Jamal.

Lastly in terms of William Cook: At his request Counsel has contacted defense attorney Daniel Alva to represent Mr. Cook as a potential witness in this or further proceedings.

THE COURT: 25 minutes.

MS. WOLKENSTEIN: Okay.

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

MS. WOLKENSTEIN: Mr. Alva was in Court this morning and I believe he has indicated that he is available to return to Court if needed.

So lastly, Judge, I wanted to indicate that in terms of the affirmations submitted this morning to Court, Judge, that we are requesting additional time to investigate and prepare for additional and unavailable evidence and to further amend our PCRA Petition.

THE COURT: Just a minute. Are you going to talk for a half hour too?

MR. PIPER: Your Honor, what time do

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you show?

THE COURT: Well, you have used up an hour already.

MR. PIPER: I will be brief and then Mr. Weinglass will complete.

THE COURT: Because he wants a half hour for rebuttal. Unless you want to cut down that rebuttal. I don't care.

MR. PIPER: What time do you have now, 10:15?

THE COURT: No, I have 1l:10.

MR. PIPER: Thank you, Your Honor. Your Honor, I would like to address the issues on which we have been precluded from presenting evidence, as well as the issues that are based on the original trial record. And the legal standards as to why we are able to raise these claims.

We have been precluded from presenting any evidence with respect to the racially-biased manner in which jury pools were selected in Philadelphia in 1982, the geographical disparity in and racial disparity in the death penalty in Pennsylvania, and the reasons for that having to do with the quest for death here in the City of

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Philadelphia and the District Attorney's Office.

We have also been precluded from inquiring into the nature of the Homicide Unit, its composition and the Constitutional defects under the Pennsylvania Constitution. We've been precluded from presenting evidence of the improper Jury deliberations during the trial by three Jurors. Or evidence relating to the Mills versus Maryland argument, the improper verdict form that Your Honor gave the Jury. As well as Simmons: The failure to instruct the Jury that life imprisonment means life without parole, and the incredible prejudicial effect that this would have.

And as Miss Wolkenstein has explained, we were precluded from presenting evidence in support of our Brady claims that the prosecution failed to disclose favorable evidence and that the police fabricated evidence and had, I believe, incredible hostility and bias against Mr. Jamal prior to when this incident began.

The Court's rulings obstructed every effort that we've made in this case to establish Mr. Jamal's innocence. And the Court has also precluded many claims going to the unfairness of

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Your Honor's rulings at the 1982 trial.

We were denied the ability to take discovery at a time when discovery is being taken in thousands of cases in this City because of corruption which is just a continuation of what was going on in the 6th District in 1981. The Court rushed us to a hearing and then quashed over 25 subpoenas. Attempted to intimidate Counsel with arrests, fines, intimidation. The very types of rulings which we predicted in our motion for recusal.

As I indicated, we have challenges going to the very Constitutionality of the death penalty in Pennsylvania. We tried to present two foundational witnesses to begin that claim. Your Honor quashed that subpoena without even hearing defense argument on it. And when Miss Wolkenstein rose to address the issue of the racial bias and the death penalty in Pennsylvania, Your Honor ordered her arrested.

If we could have presented this evidence we would have shown that blacks are three or four times more likely than whites to be given the death penalty in this state. That defendants in Philadelphia are 15 times more

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likely than anywhere else. And that this had to do with the passion for death in the District Attorney's Office which seeks the death penalty in something like 85 percent of all cases. Your Honor found this claim apparently so frivolous that Miss Wolkenstein was arrested for trying to even articulate it.

Another issue of fairness in these proceedings had to do with the fact that the Commonwealth has been, basically, reading Mr. Jamal's legal mail, as has come out in the hearing in Pittsburgh. The Commonwealth was intercepting letters to Mr. Jamal talking about strategy for this hearing, and making copies of them, sending them to the Governor's Office, et cetera.

The prosecution continues to mislead the Court and the public as to the legal standards that are applicable here, making arguments such as that death is not an irreparable injury or that all of Mr. Jamal's, or many of Mr. Jamal's claims are barred under the rules of waiver or because they were previously litigated. I would just like to point out, since it appears that the Court has

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accepted that argument in precluding us from presenting so many of our claims that that, that that rule has no application in death penalty cases. If you just look at any of the Supreme Court cases in PCRAs on death penalty cases, they almost always reach the waived issues.

For example, in the DeHart case they said although this issue is waived we will nonetheless address it because we have not been strict in applying our waiver rules in death penalty cases. And there they reversed the death sentence because of a typographical error in the jury instructions. Similarly, in the German case the Court addressed issues that had been previously litigated, and has in other cases when there are new pieces of information, either subsequent Federal Court decisions or new evidence which has a bearing on the claims. The real point is that the State Courts are given the opportunity to look at every nuance of a claim before Federal habeas review.

On the Batson issue and Dawson issue which were previously litigated we said that there was prosecutorial misconduct in that

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prosecutor McGill misled the Supreme Court by stating that there were only eight black jurors we have struck when we have proved the number was at least 10 and we believe the 11th juror will also be found.

On the Dawson claim as Mr. Williams has shown the prosecutor misled the Jury as to Mr. Jamal's character and took advantage of the Court's rulings in allowing him to un-Constitutionally look into the fact that Mr. Jamal was as a teenager a member of the Black Panther Party. And having struck so many blacks from the Jury, he then argued to the predominantly white Jury that because Mr. Jamal was a former Black Panther he deserved to die. The Court also is asked to review its own rulings in refusing to allow Mr. Jamal to represent himself and banishing him from the Courtroom. So that after Mr. Jamal had for five weeks prepared the case to try it himself, and conducted the preliminary hearing, on the first day of trial the Court stripped him of his right to move forward and handed everything to Mr. Jackson who was not ready for it. And Mr. Weinglass will go into that further.

Page 49.

And Your Honor has expressed the biased view that Mr. Jamal was in control of the case. It's hard to see how Mr. Jamal could have been in control of the case when he wasn't even in the Courtroom.

Your Honor has also misapplied the standards under the PCRA. I would just point out to Your Honor that under Section 9543 A2, Roman numeral V, any violation which would require Federal habeas corpus relief is grounds for relief under the PCRA. There is no requirement of showing that the violation go so far as to undermine the truth-seeking process or dictate acquittal.

It is enough, for example, under Brady or Strickland, that it undermines confidence in the jury 's verdict, which is a much less standard, as the Court recently reiterated in the Kyles versus Whitley case.

In addition, Your Honor, we were precluded from presenting evidence on a number of other claims. I would just like to focus a little bit on the prosecutor's, Mr. McGill's unfair and improper closing arguments in the guilt phase. And particularly, not to dwell so

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much on the fact that everybody knows that you can't refer to the defendant's exercise of his Constitutional rights at the trial, and yet that was exactly what Mr. McGill began and ended with, was the fact that Mr. Jamal had exercised his Fifth Amendment rights and had tried to exercise his right to counsel of his choice and his lack of success in doing that. That was the focus of Mr. McGill's argument.

But then he went on to vouch for the witnesses. And what he said about Mr. Chobert was, quote, what motivation would Robert Chobert have to make up a story within 35 to 45 minutes after the incident. And he repeated that, arguing to the Jury that there is no evidence here that Mr. Chobert had any motivation to change his story. And yet prosecutor McGill knew full well that not only was Chobert driving without a license when he was picked up by police that night while on probation so he was in a very vulnerable position, but then Mr. Chobert had come forward and asked prosecutor McGill for favors, which prosecutor McGill had agreed to fulfill. So what you really have is prosecutor McGill just simply lying to the Jury,

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telling them that the evidence which he had hidden from the world did not exist when in fact he knew that the evidence to show Chobert's bias was there.

By the same token, he said well, the defense got all these witness statements, why didn't they present any of these witnesses. Hiding from the Jury the fact that he had refused to give the defense access to the two important witnesses, Kordansky and Wakshul. So McGill again simply lied to the Jury.

And in terms of that type of prosecutorial misconduct, I would just refer the Court's attention to the Commonwealth versus Hollawell case, in which Mr. McGill's boss, District Attorney Rendell, was found to have also misled a jury by making false testimony about whether, ahh... about whether leniency had been offered to a witness. And that is at 383 A. 2nd, 909, Supreme Court of Pennsylvania.

And I would also refer the Court to Commonwealth versus Smith, at 615, A. 2nd, 321, in which prosecutorial misconduct of this level was found to mandate dismissal of the charges because the defendant could not be placed in

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double jeopardy when the prosecution itself had so disrupted the possibility of a fair trial at the first trial.

With that, Your Honor, I will pass to Mr. Weinglass.

THE COURT: He used 13 minutes of your half hour. If you want to go beyond your half hour, all right, but it will be less on rebuttal.

MR. WEINGLASS: Yes, I might do that, Your Honor. Thank you.

THE COURT: Okay.

MR. WEINGLASS: Your Honor, one of the hallmarks of our system of justice -- and it's particularly true in a case involving the death penalty -- is that the parties come before the court and the jury in a relatively equal position. Under ordinary circumstances that's difficult to achieve. Because as we all know, the district attorney's office has scores of lawyers, dozens of investigators, an entire police department at their disposal. Whereas the defense usually has a lawyer, an investigator, and what other, other resources the defense is able to muster. It is because of

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that disparity that the Supreme Court of the United States has spoken out so clearly and forcefully in 1973 in the case of Chambers versus Mississippi, to the effect that given this imbalance, and given the precarious position all criminal defendants are in, courts must be zealous in their efforts to assist the defense in equalizing what is essentially an unequal situation.

And in particular, if a court takes steps to deprive the defense of its effort to present a defense, that is an unacceptable pattern of behavior on the part of the court. With that in mind, let's look at what happened briefly here in this case.

To begin with you have the police on the night of the event gathering up the witnesses, bringing them down to the Roundhouse, interviewing the witnesses, culling them out, apparently determining who is favorable and who is not. This was, after all, a killing of a police officer. They had, after all, in their custody a man who was an open critic of the Police Department. And we now know that some statements were torn up. And we now know that

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favors were given to those who gave statements that were considered pro prosecution. And we now know that polygraphs were used on a biased and selective basis.

But what was happening with the defense? Mr. Jamal laid in a hospital, critically wounded himself. He had an attorney who was appointed on December 15th. But that attorney testified in this Court, and we now know from the Court records, that he didn't have an investigator appointed for five weeks, until January 20th, after the prosecution had secured full control over all the witnesses and had interviewed the witnesses, we know from the police reports, not once but twice, and in some cases three times if they didn't get what they wanted the first and second time. Five weeks later, for a crime that occurred on the street, as Tony Jackson recalled, they were trying to piece together what they could.

Well, under our system of discovery, they did get the police reports. But the addresses were deleted. The phone numbers were deleted. Other personal information was deleted. And what happened? In the six months

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that it took for the case to come to trial, the investigator Mr. Greer testified that he was only able to interview not the 40 or 60 witnesses that the police had interviewed, but only two witnesses. And he testified about his attempts to interview the prosecution's chief witness, Cynthia White, but it couldn't be accomplished because she was under-police protection.

Oh, there's been some mention here, and I think it's rather scurrilous, that although the defense didn't have the funds for a full investigation -- Your Honor will recall the total amount of money that Mr. Greer received was $562 -- there is some mention here that there might have been -- speculation -- might have been other money available to Mr. Jamal. But there were witnesses on the stand who testified about those monies. And what did we find out? We found out that at most $1,000 was raised and that that money went to his family. And he has children. He was incarcerated, his family had to continue to live. And that at most $300 was given to a photographer named Peraneau. And that was not for photographs

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related to the case, but because a defense committee wanted copies of photographs so they could use it in their literature. So there was on this record zero money raised to assist the defense.

And this record is replete with pleas from Mr. Jackson, first to Judge Ribner, then to Your Honor, pleas saying I can not get my experts. I can not get a forensic pathologist. I can't get a firearms expert on the $150 you've given me. I just am here stripped bare of the ability to defend this case with experts.

But there was no response to that. The monies for Mr. Fassnacht, the firearms expert, was raised to $350. But Mr. Fassnacht came in here and testified that he wouldn't go near this case for $350 and in fact he never examined the evidence or did any testing of the ballistics material.

On April 29th, five weeks before the case was to go to trial, Mr. Jackson came in and said to Judge Ribner I can't do this, I'm not ready to go to trial, I am not prepared, appoint another lawyer because I can not proceed with what I have. The Court rejected it.

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And on June 3rd, just as the case was about to begin, Mr. Jackson represented to this Court Mr. Jamal is without an investigator, he's without a firearms expert, and he's without a pathologist. He is standing here virtually alone. And at that point, as Your Honor well knows, on May 13th, Mr. Jamal, aware of the situation, aware of the fact that his case was in dire straits, aware of the fact that he had no defense resources, asked to represent himself. And that was granted. But, Your Honor, in 1995, can we send a person to the gallows on this kind of a record?

But that wasn't all that was to happen. If Mr. Jamal came to Court without any ability to defend himself, in clear violation of Chambers, what happened once the trial began was even more devastating. Because as Mr. Williams has pointed out, a key defense witness, Wakshul, who was present we now know in the City and within easy reach of the Courthouse, was not allowed to come in because this Court refused to allow a continuance, said he couldn't be brought in. Refused a continuance after this Court -- and Your Honor will remember this -- continued

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the case for half a day because a Juror wanted to take a civil service exam on that very week. The sequestered Jury sat in a hotel waiting half a day for one Juror to take a civil service exam while there were alternate Jurors who could have replaced that Juror in an instant. But when Mr. Jackson asked for a few minutes to find Mr. Wakshul, he was denied that.

And the Court cut off the examination of Veronica Jones, a prostitute who was prepared to testify that she was interrogated, as Miss Wolkenstein pointed out, for five or six hours in the 6th precinct and offered the same police deal that was given to the key witness Cynthia White, that if she would finger Mr. Jamal she could work her corner unmolested by the police.

Well, the Court when it heard the opening to that deemed it irrelevant and ordered it stricken and prohibited Mr. Jackson going further into establishing the clear bias of the prosecution's key witness. That's a clear violation of Giglio -- G-I-G-L-I-O -- 405, U.S., 150, a 1972 decision where the Supreme Court ruled that you can not prevent testimony that undermines the credibility of a key prosecution

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witness. And yet that was done in this case.

And the Court also limited the cross-examination of Mr. Chobert. Your Honor held that this man who -- and this has been pointed out by Mr. Piper and Miss Wolkenstein -- here is a witness Chobert, a cab driver, he's driving his cab without a license. He's got two DWI convictions and he's on probation for a major felony. And what does he do? As soon as the police arrive that night, first thing he says to the police, the guy ran away. The guy ran away. Mr. Jamal is laying on the sidewalk, practically near his cab. But the guy ran away. He repeats it within an hour in a written statement in the Police Department saying the guy ran 35 steps down the street on the south side going east on Locust. The same that Debbie Kordansky says, the same that Veronica Jones says, the same that Dessie Hightower says. Four people. And then added to by Singletary as the fifth.

But when he takes the stand, Your Honor, he says unbelievably that I must have made a mistake. I don't think the guy ran at all. I think he just fell right down here,

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conveniently where Mr. Jamal was found.

Well, Mr. Jackson of course wants to question him on this change, why the change. And why the change can be seen in his condition -- which has already been elaborated on and I won't repeat it -- but the Court cut it off. Your Honor ruled that the fact that Mr. Chobert had been convicted of throwing a Molotov cocktail into a public school for pay was not something that went to his credibility and so the Jury never heard it. And they never heard all the things that came out in the hearing subsequent about his financial interest and his liberty interest and cooperating, and seeking the cooperation of the police, seeking the cooperation of the prosecution.

You also heard from Debbie Kordansky. Now, Your Honor, Miss Kordansky's testimony was that when she looked out the window and heard the shots, she heard the shots first, looked out the window, saw someone run, she went downstairs, and she wanted to help the police. And she wanted to help the police find the culprit. And the statement that we believed was her statement was not her statement at all. It

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was the statement by a police officer who recorded what she said. And what he recorded at the end of the statement is that she said she saw someone run.

Now, I submit that in telling the police something that she wanted to help them with, she obviously told the police that she saw someone run before the police arrived because it would make no sense to inform the police of something that happened after they were already on the scene and presumably would know about it.

Debbie Kordansky should have been here in Court testifying before that Jury. She wasn't. And Your Honor knew, because you allowed Counsel to use your chambers to telephone her, Your Honor knew you could have compelled her appearance. The defense was never given her address. They couldn't reach her. Prosecution knew where she was and this Court did nothing to facilitate that.

So key witnesses were not brought in. Key witnesses were interfered with. The defense wasn't given the resources to defend the case. If this isn't a violation of everything that Chambers stand for, that nothing be done to

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interfere with the defense, it would be hard to imagine a case that is.

And so I submit on the strength of Chambers, Giglio, and the other cases which are cited in our brief, and the matters which the Court heard -- you heard from Fassnacht, you heard from Hayes -- both experts said on the basis of what they have reviewed, on the basis of whatever they reviewed, Mr. Jamal needed expert witnesses. And you know that he needed Dr. Hayes in particular because this Jury heard from Dr. Colletta, who said he wasn't qualified, but the only way he could explain a downward path of a bullet by a shooter who shot upward was to say that there was a so-called ricochet or spinning of that bullet after it struck a rib. Dr. Hayes came in, he looked at the medical records: There was no striking of a rib in this case. So Dr. Colletta's testimony, to save the testimony of Cynthia White and explain the downward trajectory, was utterly false, and Dr. Hayes could have informed the Jury of that.

Also, Mr. Fassnacht could have informed the Jury that, as Miss Wolkenstein points out, that the tests that were done, that

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were not done, was indicative of innocence.

If Your Honor please. I'm sorry.

The prosecution gained a great deal from the fact that Mr. Jamal while he worked as a cab driver late at night and who had been robbed on several occasions was armed with a gun for his own self protection. So they had a gun and they had a gun that had been licensed to him, and they used that to great advantage in this trial. But what they didn't have and what they couldn't have was any proof that that gun had been recently fired. And Mr. Fassnacht would have told that Jury that if that gun had been recently fired, the police and the police laboratory which had it within two hours would have certainly known that gun was recently fired because you could still smell the odor of burned gunpowder for up to four to five hours after the gun was used. And there was no testimony that that gun had such an odor.

Secondly, he would have said in the ordinary case of murder, no less a police shooting, when you have the suspect's hands available within five minutes, it's inconceivable that a test was not attempted

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through neutron activation testing to see that this individual had recently fired a gun.

So there were, there was critical firearms expert testimony that could have been offered that would have rebuttaled the thesis of the prosecution's case. And it wasn't done. No firearms expert, no pathologist, no investigation, really, to speak of, and then the Court's cutting out the defense case, the heart of the defense case before the Jury.

The second point I want to make -- and I'll be brief -- is the point that is contained in point number 6 -- or 4, I'm sorry -- about the way in which the case was handled on the defense side. And the irreconcilable conflicts that occurred between Mr. Jamal and Mr. Jackson. And the fact that Mr. Jackson was ineffective during the guilt phase of the case. Mr. Williams has already covered the penalty phase.

Your Honor has heard from Mr. Jackson that he didn't have the resources and he frankly admitted I think at one point that he didn't really know how to get the resources that he needed to defend Mr. Jamal. He was asked to file additional papers. He was asked to file

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memoranda of law. He was asked to file bills. He was asked to file estimates. He did none of that. He did none of it.

And the record is already clear that his preparation of the case was deficient. And I won't repeat that except he did point out that from May 13th on -- the trial began on June 7th -- he did virtually nothing. Because his understanding was that as backup Counsel he was to do nothing. So in that critical time when the case is prepared finally for trial, Mr. Jackson is, as he graphically demonstrated on the stand, sitting there with his hands across his chest doing nothing.

And when he was asked to begin this case after Jury selection had begun, he was utterly unprepared for trial, which this Court rushed through two consecutive Saturdays, one Saturday sitting until six o'clock in the evening. So he had virtually no time to prepare. He was rushing through reading statements, trying to get up to date on things, and he didn't prepare. And this is totally inexplicable.

He put on three witnesses for the

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defense: Dessie Hightower, Veronica Jones and Dr. Colletta. And he testified that he had talked to none of them, he put them on the stand cold in a death penalty case without having interviewed them.

During the selection of the Jury he failed to exercise peremptory challenges against Jurors who had a clear bias. Mr. Durso sat as a Juror. Your Honor will remember Dominic Durso. His best friend was a police officer who had been shot and had been on disability and was still on disability from a bullet wound he suffered while on duty. He sat on the Jury.

So did Miss Kleiner. Miss Kleiner sat as an alternate Juror. And these Jurors were sequestered so they were all together. And Miss Kleiner, her husband was a Philadelphia police officer. She had two small children at home. She interacted and related to the other Jurors. Can you imagine the impact that would have on a Jury? And yet Mr. Jackson, knowing this, did not exercise a challenge against Miss Kleiner either.

He failed to call Officer Wakshul. That's already been covered. He failed to

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cross-examine Mr. Chobert on his probationary status. He failed to object to the prosecutor's summation. He went into this trial, which lasted just a very quick I believe eight or nine days of taking testimony, in an unprepared and what appeared to be a somewhat unskilled state.

The prosecution's case never had to survive what the Pennsylvania Supreme Court said in the Sweeney case was the crucible of meaningful adversarial testing. Was there any adversarial testing here of this prosecution's case? And if you look at this record there was none.

And as we point out in our brief, there was none because resources were denied. There was none because Counsel was ineffective. And there was none because of a dispute that arose, an irreconcilable conflict between Mr. Jackson and Mr. Jamal. A conflict which this Court was aware of and a conflict which this Court did nothing to mollify. No colloquy, no discussion between Court and Counsel, although the Court was aware of Counsel's problems, to try to assist Counsel at a difficult time in getting through the process where the

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communication between Counsel and Mr. Jamal was ruptured because of actions taken by this Court to prematurely deny Mr. Jamal his right of pro se and to then banish him from the Courtroom.

So aware of the conflict, this Court had an obligation under United States versus Lockhart, which is cited in our brief, an obligation to try to once again right the balance of a terrible imbalance that was being played out before this Court. And this Court did nothing to attempt to salvage a defense case when it saw the defense case was collapsing. Was never really there to begin with, but was collapsing in front of a Jury. And it knew the problems that were occurring between Mr. Jamal and Mr. Jackson and it did nothing except to exacerbate the situation by banishing Mr. Jamal and by removing his pro se status.

One other thing that this Court did is Your Honor frequently referred to the fact that Mister -- and I think we are going to hear it from the prosecution momentarily -- that Mr. Jamal consulted from time to time with Mr. Jackson. And the answer is that's true. Does that mean that Mr. Jamal had control of the

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case? Mr. Jackson said no. When he testified he said I was in control, I was the speaking lawyer and I was in control. Did he from time to time talk to Mr. Jamal? The answer is yes. And the Court made note of it. But if Your Honor will recall, Rule 1.2 of the Pennsylvania Rules of Professional Conduct requires, requires a lawyer under our ethical standards to discuss with his client and talk to his client about the pursuit of the case and the methods and manner by which the case is being defended. And each time that Mr. Jackson would in the midst of this breakdown of communications attempt to have a conversation with Mr. Jamal, the Court would seize upon that and make note on the record that they were talking to each other, even though Mr. Jackson was only carrying out his ethical requirements under Rule 1.2 of the Pennsylvania Rules of Professional Conduct.

So in short, for all the reasons that have been stated here by my colleagues as well as myself, this is a case that had completely misfired and is well below the standards of acceptable due process rights that have evolved and have developed in this country. And adding

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to that the fact that this is a capital case I think gives this Court no choice but to step in at this point and to recognize honestly the fact of what happened in 1982. And the fact that Mr. Jamal never had in any sense of the word a trial of his case. He didn't have the resources, he didn't have the Counsel skills, he didn't have a trial. And to give him at this point an opportunity now, by way of giving him a new trial, the opportunity for the first time to come into Court and to test, in the crucible of an adversarial process, the strength of the prosecution's case.

Thank you, Your Honor.

MR. BURNS: May I, Your Honor?

THE COURT: Yes, sure.

MR. BURNS: Thank you.

Your Honor, I think that what you have just heard from the defense was very creative, very imaginative. I suggest to you it has little to do with what was heard from the witness stand during this PCRA hearing, and little to do with what the Jury heard 13 years ago.

I would like to begin by going back to

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that thing that the defense would evidently like to forget, and that is the evidence that was presented at the trial. Because the trial of course is integral to your decision.

Some people refer to this proceeding as an appeal. That's a shorthand description, it isn't quite accurate. This is a Post-Conviction Relief Act proceeding. The Defendant had the burden of proving at that hearing that there was something very wrong, something very illegal about the process by which he was convicted.

So since one of the things the Defendant purported to be able to prove was his actual innocence, we have to go back and look at the evidence at trial, the so-called house of cards, which has proven his actual guilt.

This, by the way, was an event that happened in the 6th District in 1982, not the 39th District in 1995.

The evidence at trial, though, was Robert Chobert saw this man, this Defendant, run across the street and shoot Officer Daniel Faulkner in the back. The officer fell. Mr. Chobert saw this man, this Defendant, standing

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over the officer, shooting into his face. He then stated at trial the motion of the arm as the gun recoiled. He saw the Defendant go over to the curb and fall. He saw William Cook there too. Chobert identified this Defendant as the shooter at the scene. He was not picked up by the police, as someone said, he went to the police and identified this Defendant.

Cynthia White saw this man, this Defendant, run across the street, shoot Officer Daniel Faulkner in the back. The officer turned, grabbing at something at his side, she lost sight of him because the Defendant got in the line of vision, she then saw the officer fall, saw this man, this Defendant standing over the officer firing into his face repeatedly. Then this Defendant slouched, went over to the curb and sat down. She also saw William Cook standing by the wall. He was not the shooter, the Defendant was. So this mysterious fourth man was not present, was not the shooter; this Defendant was. Cynthia White was cross-examined for two days by Anthony Jackson.

Albert Magilton saw this man, this Defendant run out of a parking lot towards

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Officer Faulkner, who was attempting to arrest William Cook. Magilton looked away, he heard shots, he looked, he saw the officer on the ground, saw William Cook, who he said had a shocked expression on his face, saw this Defendant on the curb. Albert Magilton identified this Defendant as the shooter at the scene.

Michael Scanlon was a man who was sitting in his car waiting for the light to change. He saw a man doing what the other witnesses described the Defendant did. There was no doppelganger, there was no double of the Defendant. He saw this man shoot the officer from behind, stand over him and shoot him in the face. He said, quote, I could see the one that hit the officer in the face. His body jerked, his whole body jerked.

Robert Chobert, Cynthia White, Robert Chobert, Albert Magilton did not know each other. They each identified this Defendant at the scene as the gunman who murdered the police officer.

Officer Daniel Shoemaker, the first officer who arrived at the scene, found this

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Defendant sitting on the curb. Inches from his hand was a handgun. When the Defendant saw Officer Shoemaker he reached for the handgun. The officer had to kick it out of his reach.

Mr. William Cook told Officer Shoemaker's partner I have nothing to do with this. Mr. Cook was over by the wall, the Defendant was sitting on the curb.

The gun that Officer Shoemaker found inches from the Defendant's hand was the same handgun that the Defendant bought, that the Defendant owned, that he carried, that he bought high velocity Plus P ammunition for. There were two guns recovered at the scene: The Defendant's .38 caliber Charter Arms revolver, a five-shot weapon, which had been fired five times; and the officer's Smith & Wesson revolver, a .38 caliber gun which had been fired once, a six-shot weapon.

Now, it has been said that the most compelling evidence was what the Defendant said at the hospital. I don't know if it is the most compelling, but it is significant. At the hospital the Defendant was carried because he refused to walk to a point near the closed door

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of the emergency room. And the Defendant said, quote, I shot the motherfucker and I hope he dies. Officer Bell testified to this. The defense tried to impeach Officer Bell. They said you're making this up, because this wasn't in your first statement, you only said this in your second statement that the Defendant made this admission. But what made that argument fail was the fact that another person heard the statement too. And I am not referring to Officer Wakshul yet, I'm referring to Priscilla Durham. Priscilla Durham was a security guard working in the hospital. She said she heard the Defendant say the exact same thing and she reported it to her superiors the very next day. She didn't delay. She didn't leave it out. The following day she reported it to her superiors.

Now, I think I heard Mr. Weinglass say in the past there was a written statement by Miss Durham that had disappeared. Not true. In fact, if you look at the notes of testimony of June 24th, 1982, at page 52, Miss Durham was asked if she had a handwritten statement, and she said no. The statement she did give was produced at trial, and it proved that this

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wasn't something that people made up later on. It proved that it was something she heard that she reported the following day. Defense would like to forget about Miss Durham in their quest to show that this was a so-called bogus confession.

I would like to mention, I would like to digress by mentioning that Officer Wakshul of course heard the statement too. If he would have been called to testify he would have testified to the statement as well, that the Defendant made the same admission.

Mr. Williams was I think a bit confused when he looked at our proposed findings of fact. Because we are not saying that Officer Wakshul withheld this information because he wanted to protect Officer Bell. We are saying that his later statement, like that of Officer Bell's, both officers in their later statements reported hearing the Defendant make the admission, both officers stated that they failed to report it immediately because of their tremendous emotional state of being distraught, having this death of their colleague occur and having the Defendant make this admission. And

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our argument is that the fact that both Officer Bell and Officer Wakshul independently revealed that Bell made this emotional statement in reply to the Defendant's admission -- if he dies you die -- makes their testimony that much more credible because it was a statement against their interests.

Now, Miss Durham said the Defendant was bragging when the Defendant said this. She was not a police officer, she did not have an axe to grind. She did not report this to the police, she reported it to her superiors. And Priscilla Durham corroborates, if anything, the testimony of Officer Bell and the PCRA testimony of Officer Wakshul that this admission is not bogus, that it really existed, the Defendant really said that.

The ballistics evidence. The bullet taken from the Defendant's body of course matched the victim's revolver to the exclusion of all other firearms. The projectile taken from the victim's head was too deformed to be matched in a similar way to any particular gun to the exclusion of all other firearms. But there were enough markings on that projectile to

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show that it was fired from a gun that had a barrel with eight lands and grooves. The police officer's gun, for example, had five lands and grooves with a right-hand twist. The gun that fired this projectile, the one that killed the victim, had eight lands and grooves and a right-hand twist. The Defendant's Charter Arms revolver had eight lands and grooves with a right-hand direction of twist.

There was a second characteristic of this bullet, moreover: It had a hollow base. And the testimony at trial was that this was a unique characteristic of ammunition manufactured by a company called Federal; and that four out of the five cartridges in the Defendant's gun were of Federal manufacture.

We are talking about evidence of guilt, so let's jump ahead to evidence at the PCRA hearing for a moment. I am referring to Robert Harkins. The defense offer was that Harkins would be a witness who would prove the Defendant's actual innocence. Harkins was supposed to come in and testify that he was shown a photo array and that he picked out the shooter and that it was not the Defendant. That

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was the Defendant's offer of proof.

What did Mr. Harkins say when he took the stand at the PCRA hearing? He said three things. First, he said that he was very annoyed at the defense because when he told them something, they misrepresented what he said. Second, he said that he was never shown any photo array. And third, he said that the shooter, the man who murdered the police officer, went over to the curb and sat down. Just like all the other witnesses said, just like Officer Shoemaker found this Defendant sitting on the curb. Evidence not of actual innocence, evidence of actual guilt.

Now, before I get into the other evidence presented at the PCRA hearing I would like to address the claims made, the claim that the defense was rushed into Court for this PCRA hearing. I am going to refer your attention to an Exhibit that was introduced during these proceedings, a deposition of William Singletary that was conducted by Rachel Wolkenstein, Esquire, an attorney representing the Defendant in this PCRA, dated August 1990, over five years ago. That's the earliest time we can document

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that these attorneys were working on this PCRA case, investigating this PCRA matter, as long ago as five years. When the death warrant was signed, as a matter of record about three days before the anxious, thick PCRA Petition was filed with a whole array of depositions, of affidavits of witnesses, and yet, again, testimony didn't start to occur until two months after that. The claim that these people were not ready to proceed is a sham, it is posturing, it is a fraud upon the Court, and this Court should so find.

Now Anthony Jackson. Well, if you don't have the evidence of actual innocence, the thing to do, the thing the defendants do in PCRA proceedings, is to say the trial counsel was ineffective. This Defendant is no different to that extent, but he is unique in one way. And that is that this Defendant is particularly ill qualified to be claiming that his trial Counsel was ineffective because he demonstrated, and the trial record shows on a daily basis, that he was not going to cooperate with Anthony Jackson, or with any attorney. He demonstrated on a daily basis that it was he who was making the

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decisions, not Anthony Jackson. Not any other attorney. This Defendant by his actions wanted to make a political demonstration. He was following what he called the strategy of John Africa, which apparently consisted of attempting to portray himself as some kind of celebrated political figure being persecuted, being railroaded by an unfair system. But of course since letting the trial proceed would have refuted that claim that the trial was unfair, he could not have that. So the Defendant refused to cooperate with his attorney, refused to let his attorney do his job so he could turn around and say to the Court, see, my trial is not fair. Now, that is what happened. But one can not come to the PCRA Court and say gee, it was really misguided of me to stymie my attorney and I would like to have another crack at it please, I think I could do a better job if I had another crack at another trial, could I do it again. That is no basis for a new trial. He has to show that it was Mr. Jackson's fault.

So Mr. Jackson, whether it was to his credit or to his shame, attempted to help his client now, as he tried to do all along. What

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Mr. Jackson did -- and there is a term we use around here when a defense attorney is accused of being ineffective, knows he is not and yet pretends that he was -- it is called taking a dive. That is what Mr. Jackson attempted to do. He attempted to take a dive. But he found out there wasn't any water in the pool, because he kept on running into the trial record. In fact, he ran into his own record. He was handpicked by this Defendant. Small wonder. Before becoming a lawyer he was an evidence technician for the police. He was an investigator. After becoming a lawyer he became an Assistant D.A. He worked with a Federal Master. He invented new procedures for filing civilian complaints with the Police Department. He taught other lawyers how to sue the police.

He filed a police complaint in this case in order to generate additional discovery. He spent five months working hard preparing for this trial. Before representing this Defendant he worked in 20 capital cases, 20 capital trials that resulted in no death sentences.

In this case the Defendant pulled the rug out from under Anthony Jackson. The

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Defendant announced that if he was going to be represented by anyone it had to be non-lawyer John Africa. And if not that, then he was not going to cooperate with any so-called -- quoting the Defendant -- legal-trained lawyer. Because a legal-trained lawyer was just an employee of the system who would hang him. And so the Defendant announced that he was not going to cooperate. And even after Mr. Jamal was removed as his own Counsel and after Mr. Jackson took over again after the Defendant wanted to represent himself, he still refused to cooperate with his attorney for the reasons that he himself stated.

And so every time Mr. Jackson tried at the PCRA hearing to portray himself as ineffective, he ran headlong into another part of the record that demonstrated the opposite.

The business, for instance, in his affidavit where he said he didn't know how to get funding for an investigator or for experts, the record showed that Mr. Jackson knew just what to do. He went to see Judge Ribner, who told him give me an itemized bill and you will get your money. He had to retract that

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statement during the PCRA hearing claiming he didn't know how to get the money.

No investigator. Robert Greer testified that he worked four hours for every hour he billed.

No ballistician. But George Fassnacht was available for consultation right through the trial, right up until the last day of the trial.

The idea that, or the claim that Greer spent all of his budget looking for one witness: Mr. Jackson was forced to admit that he, quote, misspoke on that point. Just a slip, he said.

As for his claim that there was no money: Among other things, he was confronted with his own fee petition; his own statements on the record referring to an independent defense fund, funds from the Association of Black Journalists. Funds from the Mumia Abu-Jamal Defense Committee, an organization created to raise funds for the Defendant. Among other organization and individuals.

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

MR. WILLIAMS: Shall I proceed, Your Honor?

THE COURT: Just a minute. Wait awhile. There are only 20 minutes left for rebuttal.

MR. WEINGLASS: That's right.

THE COURT: I thought you were going to take it.

MR. WEINGLASS: No, we are dividing.

THE COURT: How are you going to divide it, five minute each?

MR. WILLIAMS: I will take approximately five to seven minutes.

THE COURT: Well, everybody else is

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going to have rebuttal?

MR. WEINGLASS: Yes, we will use up the entire 20 minutes divided among the four of us.

THE COURT: Five minutes each.

MR. WEINGLASS: It might be a little, might be six for one and four for another.

THE COURT: Well, let me know. How do I know what you are going to do. I said you have 20 minutes and that's all you get.

MR. WEINGLASS: That's what we will do, we will just use the 20. But we have until one o'clock, as I understand it.

THE COURT: Yes. Okay, go ahead.

MR. WILLIAMS: Let me be very quick. I think with respect to the Wakshul issue, we see how absurd the arguments can descend when the prosecution's case is challenged. They claim here -- and I am going to speak fast -- that it was the emotional state of Mr. Wakshul that explains the failure to mention anything about the confession.

First of all, Wakshul doesn't use that explanation. He said he didn't understand the significance of the confession. But even more

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importantly, Your Honor will remember I used the blackboard and I listed the abundant details on the night in question that he recalls from his own memory. And then a week later, December 16th, he had a full week to collect himself, he testified that he had collected himself, he was invited to provide details that were important. He was asked is there anything you wish to add and he made no mention of the confession. It took him 64 days, apparently, to collect himself. And apparently it took the shock of finding out that Mr. Jamal had made an allegation of police brutality before he could collect himself to make this allegation of a confession. I would welcome that kind of argument in front of a jury because it precisely proves my point: The absurdities of the Commonwealth's case and what they will descend to to try to salvage this case.

The emotional state of Mr. Wakshul. Well, does that explain every single police officer witness in that hospital, all of whom said that, made no mention of any kind of confession of this sort? It's preposterous. And if Your Honor is inclined to deny this

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claim, then I invite you, Your Honor, to adopt that argument. Because I think any rational jurist will reject it out of hand, just as any rational human being would reject it out of hand. I invite Your Honor to accept that rationale. Any lawyer would have a field day with this. Just as I did, a young lawyer. Just as Mr. Jackson said he would.

Now as to Miss Durham's statement. As a matter of fact, Miss Durham on the stand refused to adopt this purported typewritten statement. That's in the record, 6-24-1982, pages 52 and 98. Why did that statement come in? According to the prosecution, because, quote, they took the handwritten statement and typed this. Well, now we hear that there was no handwritten statement at all. But that's why it was admitted. And it was admitted supposedly to refresh Miss Durham's recollection. Her recollection didn't need to be refreshed.

And was the author of this typewritten statement brought in to testify? The answer is no. The fact is Miss Durham first came up with this confession during the same time span as Mr. Bell and Mr. Wakshul, in February of 1982.

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Also, I might add that Mr. Wakshul didn't see Gary Bell and didn't see any hospital security personnel when Mr. Jamal supposedly made this statement. But he did see his partner. His partner was near Mr. Jamal. And did his partner, Officer Trombetta, say he heard a statement, any kind of confession? The answer is no. This is a litmus test of what kind of case the Commonwealth had.

On the mitigation they make this preposterous argument that persons with less qualities of Mr. Jamal are somehow more worthy of life, but I want to say this on behalf of the defense team.

THE COURT: One minute left.

MR. WILLIAMS: I may go just slightly over.

THE COURT: All right.

MR. WILLIAMS: I want to say on behalf of the defense team: We on the defense team believe that the death penalty is an abhorrent mode of punishment, it is a stain on this society and it violates the dignity of every human being. But under the law, the Commonwealth seeks the death penalty on people

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who are so lacking in human worth that somehow State-sanctioned death is appropriate. Well, under those conditions, and if the Commonwealth is going to invoke this sanction, then the defense is obligated to prove the opposite: That his or her client is not so lacking in human worth so as to not be executed. And that's precisely why the law recognizes that this form of mitigation ought to be presented. And it's shocking that the Commonwealth will invoke that kind of argument. And in fact, if Your Honor will look at pages 98 and -9, and page 191, Mr. Grant does make some astonishing -- well, not so astonishing -- powerful statements regarding the mitigation of the Commonwealth's case.

Finally, what is the prosecution suggesting is your role? Are they suggesting that Your Honor sit up there like a potted plant? If the defense presents no mitigation witnesses, and when Your Honor knows that there has been some difficulties experienced by Mr. Jackson and Mr. Jamal, Your Honor owes an obligation, which the law recognizes and demands, that Your Honor intervene and engage in

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a colloquy with the Defendant to insure that the case is proceeding as it ought.

And so if the Court is going to adopt any such argument by the Commonwealth, then Your Honor must look to yourself to see if you have fulfilled your own judicial obligations to insure that substantive justice was done.

Thank you, Your Honor.

MS. WOLKENSTEIN: Your Honor, five minutes. I want to say that in fact the prosecution has continued to misrepresent the record, as it full well knows.

In terms of the deposition taken of William Singletary in August of 1990, I was not the attorney in that. The attorney was Mr. Jamal's appellate attorney. And in fact, her failure, the appellate attorney's failure to follow up on Mr. Singletary was one of the reasons why a search was begun to establish new counsel for Mr. Jamal. And that period, that search took several years to do that. And it was only after that search was begun that we were able to try to put together again the information, evidence, investigation and everything that was necessary to pull together

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this PCRA Petition. Prosecution knows whose names are on that deposition and this misrepresentation is again another reflection, another piece of evidence of the type of process that they have engaged in.

I want to also direct the Court's attention to the fact that Mr. Singletary then disappeared. He was unavailable because of fear. And as he testified in Court, the first time he met with Mr. Weinglass was in June of this year. That should be clear for the record.

I further want to state on this matter that the prosecution makes much of the so-called impossibility based on Dr. Hayes' testimony, trying to undermine the testimony by Mr. Harmon and Mr. Singletary, as to what position, what position Officer Faulkner was in when the shot was taken against Mr. Jamal. I want to state that this is another misrepresentation of the testimony. Both Mr. Harmon on August 10th on page 63, and Mr. Singletary -- I don't have the cite right in front of me -- testified that when Mr. Jamal approached the police officer he was not prone on the ground, absolutely not prone, but he was lying against the wall.

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And Mr. Hayes, Dr. Hayes also testified that the other position of Mr. Jamal that would have had the type of shots and the direction of the shots would be as if he was bending over. Bending over as if to help, as he was doing that night, over Police Officer Faulkner. That would have gotten the same trajectory. The one thing that would not be established, that could not happen, would be a Police Officer Faulkner falling, which is the prosecution's theory, and shooting upward to Mr. Jamal. That is a medical impossibility.

If we could have proceeded with our lie detector expert, we also would have been able to introduce other evidence on how witnesses conflated their testimony which would have also dealt with the sequence question in terms of, in terms of Mr. Singletary. But the Court would not allow us to pursue any of this.

All right, I am going to...

MR. PIPER: Your Honor, I don't really have anything to add because of the 14 claims I addressed Mr. Burns did not respond to one of them. Reflecting again, I think, their eagerness is simply to get one more notch on the

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gallows and is not to explore the issues in this case. The Supreme Court cases and the Constitutional law surrounding these issues must be considered.

THE COURT: Mr. Weinglass.

MR. WEINGLASS: Just a few observations. There are three witnesses that Counsel addressed: Arnold Howard, William Harmon, and William Singletary. And I want to say just briefly about each of them.

There is no question and it's not in dispute that William Singletary was there. And he was there at the time of the shooting. Highway Patrolman Vernon Jones said he got there within two minutes of the shooting --

THE COURT: 45 seconds.

MR. WEINGLASS: 45 seconds. I thought we had until one o'clock.

THE COURT: No, no, I was commenting on the officer's testimony.

MR. WEINGLASS: Oh, I see. Thank you.

THE COURT: When he got there it was less than a minute.

MR. WEINGLASS: Yes, and when he got there Singletary was already there. Indicating

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that Singletary must have been there at the time of the shooting. And Singletary that night was brought down to the police station and he gave a statement. So there is no question about the fact that we're dealing with someone who was there.

Now, the problem is this. What he told the police that night and reduced to writing we don't have. And we will never have it because it was torn up. What we do have is a deposition that he gave eight years later when he was trying to remember after the passage of eight years, and after having read about the case in the newspaper, what he remembered seeing that night. But the fact of the matter is his best recollection -- and he said this on the stand -- we will never have because of the action of the police officers who interviewed him that night.

Incidentally, the prosecution was very careful to call Officer Quinn who took the statement, but they did not call Officer Green who tore up the statement. And I found that to be significant.

Secondly, with respect to William

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Harmon. We don't know William Harmon. As Your Honor knows, we found out about him in the middle of the hearing. We knew he was an inmate and one of us went to see him briefly: Miss Wolkenstein. But as we told the Court, we hadn't had an opportunity to investigate what Mr. Harmon said, nor to evaluate him as a witness. We did not call him as a witness. The Court called him as a witness. But I will say this much about Mr. Harmon.

THE COURT: I went to all the trouble of getting him here for you from prison so I wanted to hear what he had to say.

MR. WEINGLASS: The Court wanted to hear what he had to say.

THE COURT: Because I went to the trouble, because you told me he was your witness, I brought him in. I specially sent deputies to get him, to bring him in.

MR. WEINGLASS: We told the Court that we wanted him brought in and we wanted to re interview him.

THE COURT: You did re interview him that morning, at the Sheriff's office.

MR. WEINGLASS: Very briefly.

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THE COURT: I don't know how briefly. But you had a chance to reinterview him. You wanted to reinterview him after we had a sidebar conference that nobody has brought up as yet. Right?

MR. WEINGLASS: Right, but we wanted to interview him, Your Honor, because in a case involving the death penalty, we did not want to put on a witness, one who we did not locate but came forward, who we did not have a chance to investigate. Because he gave us the names of people who he said he told this story to. We wanted to check with those people. We didn't have the time to find them. One is in Massachusetts, another could not be located. We could not put a witness on in such condition. The Court forced the witness on us, over our objection.

THE COURT: Yes, because you said you wanted me to bring him in. Fine, I brought him in. You had a sworn statement from him. He couldn't deviate from that.

MR. WEINGLASS: Right. It was not a sworn statement but we had a statement.

THE COURT: Well, okay. I don't know

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if it was or wasn't.

MR. WEINGLASS: We have to be careful about that. But, Your Honor, the thing is this: I don't know what motivates Mr. Harmon. I honestly don't. I hadn't spent any time with the gentleman. But I do know this. He could receive absolutely no benefit from the defense by coming forward and saying that Mr. Jamal was not the shooter. He could only be seriously hurt. The man is serving a sentence which could be expanded up to 10 years and he came in here to testify and put his parole status in absolute peril. That was very convincing to me.

THE COURT: So you say he is telling the truth, then?

MR. WEINGLASS: Well. What I am saying is Mr. Harmon would have no reason to lie.

THE COURT: Well, I didn't say he had any reason to lie. I just wanted to hear what he had to say.

MR. WEINGLASS: Right, but I am just saying, Your Honor, that when you look at this individual who we didn't know and we didn't put on, you have to take into account that his

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coming forward was at his own peril.

THE COURT: Well, I think he said --

MR. WEINGLASS: And he had no benefit at all.

THE COURT: I think he said that his buddies in prison said if you could help him there, help him.

MR. WEINGLASS: And what the Parole Board is going to say is you will serve another seven or eight years.

THE COURT: I don't know what the Parole Board will do, that is not my problem.

MR. WEINGLASS: I don't think he will get a recommendation from the District Attorney's Office, I think it is fair to say that.

Now with respect to Arnold Howard. Arnold Howard was an individual who, there is no question about it, was taken into custody. There is no question in anybody's mind that a document of his was found at the scene. And so he wasn't someone who just showed up without there being a basis.

THE COURT: Well, don't you think that's good police work? If I was a police

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officer and I found his name there in the officer's hand, don't you think I would call him in? Of course I would.

MR. WEINGLASS: He was called in. That might have been good police work but the fact of the matter is he says, he says that he was held for 72 hours.

THE COURT: Yes, but he says he wasn't there. And he proved it by producing a slip from the marketplace where he was.

MR. WEINGLASS: That's right.

THE COURT: So he wasn't there. So what difference does it make?

MR. WEINGLASS: But the point of the matter is this. He was treated by the police that night as if he might have been the person who ran away.

THE COURT: Sure. And that's, and that's good police work.

MR. WEINGLASS: That supports Dessie Hightower, Debbie Kordansky, Veronica Jones, and Chobert, all of whom said the shooter ran away. And the police --

THE COURT: That doesn't support them. It doesn't support them because he proved that

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Defense Argument

he wasn't there.

MR. WEINGLASS: Right. He might not have been the individual but the fact of the matter is --

THE COURT: Oh, you got another individual.

MR. WEINGLASS: He might not have been that individual but the fact --

THE COURT: Oh.

MR. WEINGLASS: But the fact of the matter is the police were operating on the theory at that point that the shooter ran away. And they thought it might have been Arnold Howard.

THE COURT: Well, sure, what's wrong with that? The police could operate on a lot of theories. That doesn't mean that they are all correct.

MR. WEINGLASS: Right.

THE COURT: Just as medical examiners can make mistakes too.

MR. WEINGLASS: Right.

THE COURT: You brought up that one about the young lady who was allegedly shot by a shotgun. Where the Medical Examiner on the

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Defense Argument

scene saw all of these hundreds of...

MR. WEINGLASS: Puncture wound.

THE COURT: . . . punctures and assumed that it was a shotgun. But when he took the body back to the morgue --

MR. WEINGLASS: 12 years later.

THE COURT: No, not 12 years later. Took the body back to the morgue and he started looking for pellets and he couldn't find them, then he said it couldn't have been a shotgun, it was an ice pick.

MR. WEINGLASS: Right.

THE COURT: So what's wrong with that?

MR. WEINGLASS: Nothing is wrong except Mr. Connors served 12 years for a crime he didn't commit.

THE COURT: I gave him a new trial. Counselor.

MR. WEINGLASS: Pardon?

THE COURT: I gave him a new trial. That was my case.

MR. WEINGLASS: Yes, after he served 12 years.

THE COURT: Well. What do you want me to do?

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MR. WEINGLASS: I could close with this: Here we are 13 years later and I am sure the Court will do the same in Mr. Jamal's case and it ought to.

THE COURT: Okay.

MR. WEINGLASS: Your Honor, I just have one last thing. This is not argument.

THE COURT: Okay.

MR. WEINGLASS: Your Honor, I'm completed with argument.

THE COURT: Okay.

MR. WEINGLASS: You know that Mr. Alva was here in Court. He was here twice this morning. He is, as I understand it, William Cook's attorney. Was his attorney then, did his trial, handled his case. When William Cook appeared last week I referred him to his lawyer and I contacted Mr. Alva. I understood Mr. Alva came here this morning as Mr. Cook's representative but he hasn't had an opportunity to address the Court. He left a note for me indicating that he had to return to his office but that I should advise him when we're finished. Does the Court want to hear from Mr. Alva with respect to William Cook and --

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THE COURT: Well, I don't know. Let's see what the Commonwealth's position is on this.

MR. GRANT: Mr. Alva wasn't at 12th and Locust on December the 9th of 1981, and what he has to say is totally irrelevant. If Counsel wishes to call Mr. Cook we would be more than willing to entertain his testimony. Your Honor, with the Court's permission, assuming. And I note as yet -- and Miss Wolkenstein deems herself capable and fit to testify for Mr. Cook -- no part of his body is in this room. Mr. Alva's here to do the same. No sightings of him in Philadelphia. And now august Counsel here wants to make more representations on the record.

THE COURT: Well, I don't want to listen to Mr. Alva. I don't think that's part of these proceedings.

Do you have any surrebuttal?

MR. BURNS: No, thank you, Your Honor.

THE COURT: Okay, then we are finished.

MR. WEINGLASS: I am not offering Mr. Alva as a witness.

THE COURT: I don't care what you are

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offering him for.

MR. WEINGLASS: He is here to represent Mr. Cook and wants to make representations about Mr. Cook to the Court which I am not in a position to do.

THE COURT: The District Attorney says if he wants to bring Mr. Cook in here they have no objection to Mr. Cook taking the stand and testifying. You relay that to him from me, will you please.

MR. WEINGLASS: I will. Could we bring him back?

THE COURT: What?

MR. WEINGLASS: Could we bring Mr. Alva back to inform the Court?

THE COURT: No, you could inform him.

MR. WEINGLASS: Yes. But Mr. Alva wants to come here to speak to the Court.

THE COURT: I don't want to listen to him. If he has a client that he wants to produce here to testify, the D.A. has no objection to it, I certainly don't have any objection to it. Let him bring his client in.

MR. WEINGLASS: Okay. Could we do that right after lunch?

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THE COURT: I am not going to come back to this Courtroom again, Counselor. It has nothing to do with it. You tell him what I said and if he wants to do it let me know. Let him, let the D.A. know. Let him give us a written statement or something as to what Mr. Cook is going to say.

MR. WEINGLASS: And you want that this afternoon?

THE COURT: I don't care when you do it. I am not making a decision yet, I am taking it under advisement. I have to read all of this you have given me so far. So I am not making a decision today.

MR. WEINGLASS: As far as I know, Mr. Alva was meeting with William Cook this morning at nine o'clock.

THE COURT: Well, let him tell us what he wants. Let him inform the D.A. If the D.A. has no objection, I certainly don't.

MR. WEINGLASS: Well, could we come back at two o'clock?

THE COURT: Why do we have to come back? You let me know. You let me know what he wants to do, period.

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MR. BURNS: Your Honor, I don't know what this game is supposed to be about, but if Counsel wants to call William Cook he can call William Cook.

THE COURT: That's what I said to him.

MR. BURNS: Mr. Alva is not a witness, he is not representing any party in this case. For us to come back and to entertain Mr. Alva would be, really, pointless.

MR. WEINGLASS: Maybe I haven't made myself clear.

MR. BURNS: No, not at all.

MR. WEINGLASS: I want to call Mr. William Cook. His lawyer came to Court this morning, and I don't know what position his lawyer is going to take.

THE COURT: Well, you find out.

MR. WEINGLASS: I want to call William Cook, I want that clear.

THE COURT: Find out. You told me before you didn't want to call him. Now you changed your mind.

MR. WEINGLASS: I didn't have him, Your Honor. I saw him --

THE COURT: I asked you whether or not

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the Defendant wished to testify, whether his brother was going to testify, whether you were going to call him, and you said no.

MR. WEINGLASS: Right.

THE COURT: Now you are saying now you want to bring him in. You talk to Mr. Alva. If he wants to bring him in, fine. That's it for today.

MR. WEINGLASS: I just wanted to be clear.

THE COURT: It's very clear. I can't be any clearer than that. You tell Mr. Alva what I said. And if he wants to bring him in we will make arrangements, okay.

MR. WEINGLASS: Your Honor, I saw William Cook for the first last week in three years.

THE COURT: Fine. I haven't seen him since '82.

MR. WEINGLASS: He showed up last week for the first time unannounced.

THE COURT: Counselor, please. You are going to stand here all day and argue about something. I told you what I want you to do. Speak to Mr. Alva. If he wants to bring him in

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to testify, we will have him come in and testify.

MR. WEINGLASS: This afternoon?

THE COURT: Well, I don't know. If he could bring him here this afternoon, fine.

MR. GRANT: Your Honor, I don't think Mr. Alva, quite frankly, has anything to do with this. There is no more attorney-client privilege. There is no Fifth Amendment right. If he wants him he should subpoena him and if he is subpoenaed he will be here. And if he doesn't want him he won't be here.

THE COURT: Well, then, subpoena him.

MR. WEINGLASS: I will subpoena him through Mr. Alva. But Mr. Alva saw him at nine o'clock this morning and came to Court, he was going to, we wanted him to testify. I'm only asking that we come back at two o'clock so that we could put Mr. Cook on the stand.

THE COURT: Well, if he is here and they don't have any objection. We will be back here at two o'clock to have him take the stand.

MR. WEINGLASS: Thank you.

MR. GRANT: Let us know at 1:45, Mr. Weinglass, we will accommodate you.

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THE COURT OFFICER: This Court stands in recess until the call of the Crier.

(Luncheon recess was held until 2:42 p.m.)

THE COURT: All right, what's your problem, gentlemen?

MR. GRANT: Well, Your Honor, apparently Counsel is desirous, Mr. Weinglass purports to be desirous of having Mr. William Cook come in to testify, since closing arguments are already done. However, they have not subpoenaed Mr. Cook. And he was in their company a week ago when there was plenty of opportunity to do so. And apparently Mr. Cook's Counsel, Mr. Alva, purports to be his Counsel. I suggest to you that he is not. This case terminated in 1983 on August the 10th when Mr. Cook was sentenced for his part in this affair after pleading guilty. Nevertheless, Mr. Weinglass, who I imagine has been repeatedly badgered by the press as to why the only person who could really tell what happened that night besides Mr. Jamal has never been called as a

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witness, I suggest to Your Honor that what Mr. Weinglass is doing is posturing for the press, saying we want Mr. Cook but we have to defer to Mr. Alva. And if Mr. Alva says no, then, you know, we tried.

Well, I suggest that Counsel serve Mr. Cook so that Your Honor's order that he be present tomorrow can be obeyed. Otherwise, Your Honor has no jurisdiction over Mr. Cook, you can not compel his appearance here today. Which is what, I am sure, Mr. Weinglass wants.

In any event, Mr. Alva says he needs three or four days to speak to his client to determine if he should testify, if he has any Fifth Amendment exposure, if he is competent to testify, and that we will be holding this in abeyance until Friday.

We would object. If Mr. Cook's not brought in tomorrow, I would ask Your Honor to begin your review and to proceed with findings of fact and conclusions of law in accordance with the law.

MR. WEINGLASS: We are prepared to put Mr. Cook on. We've asked for his appearance. I saw Mr. Cook for the first time after three

Page 141.

years when he appeared in Pittsburgh. I was in Pittsburgh. I don't practice there, I was in the Courtroom. As soon as I saw him I was called as a witness. I was on the stand for a day-and-a-half. I never had an opportunity to subpoena him. But I did contact his lawyer, and I understand he met with his lawyer this morning.

And I understand he's here. I don't mean in this Courtroom but he's here now in Philadelphia. And we are prepared to call him as a witness. All of Counsel's comments, of course, are rhetorical, without a basis in fact. I don't want to even bother to go into it. There is no need to spend more time on this issue. We are ready, we want Mr. Cook on the stand. His lawyer was here and we are prepared to proceed.

MR. GRANT: Could the Court inquire of Mr. Alva as to whether in fact he is his lawyer? And if so could he enter an appearance in this proceeding. Otherwise, he would be nothing more or less than an officious intermeddler.

THE COURT: Oh, there you are, Mr. Alva.

Page 142.

MR. ALVA: I am beneath the officious intermeddler sign.

THE COURT: Okay. Do you have anything you wish to say?

MR. ALVA: Well, Mr. Grant had spoken on my behalf quite eloquently. If Your Honor please, as I do represent Mr. William Cook, I represented him from the morning of the tragedy up until the conclusion of his particular case, and after that on other, unrelated matters. If there is an appropriate form that I am unaware of after 23 years of practice for entering an appearance, I don't know on what number, it's not Commonwealth versus William Cook, I don't know what document it is that would satisfy Mr. Grant but I'll sign it.

I did meet with Mr. Cook this morning for the first time in, I would say, approximately eight or nine years. He came to my office at nine o'clock. I spoke to him for perhaps 15 minutes, tops. I was made aware by Mr. Weinglass yesterday that this Court was set to start at 9:30 this morning. Knowing how prompt Your Honor was, I left at 9:15, informed Mr. Cook that I did not know what his status

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was, if he was a witness or whatever, that he and I had many, many things to discuss. I then came over here, and I won't go through all the rigmarole I had of trying to get into this Courtroom.

THE COURT: I had the same problem.

MR. ALVA: Right. But it's clear to me after 15 minutes that I am 13 years removed from the facts of this case. I do not even possess the statement he is purported to have given at the time of his arrest to see whether or not anything he says may or may not contradict that. I do not know, I have not been able to determine whether or not he is competent. And there is a question in my mind at this point, even after 15 minutes I'm not sure. I think he is but I would need additional time. I also have to prepare him for direct.

THE COURT: No, you don't have to prepare him. Just tell him to tell the truth.

MR. ALVA: Certainly, Your Honor.

THE COURT: That's all.

MR. ALVA: Also I have to prepare him for cross-examination.

THE COURT: Tell him to answer

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truthfully whatever questions are asked, that's all.

MR. ALVA: Certainly, Your Honor.

THE COURT: There is nothing that you have to prepare anybody about. You are not here to coach anyone.

MR. ALVA: I did not indicate to you that I would coach him.

THE COURT: Well, that's when you talk about preparing, I don't know.

MR. ALVA: Well, Judge, I dare say that no one comes to a courtroom without prepping their witnesses, and it is not coaching.

THE COURT: Well, if it is not coaching then there shouldn't be any difficulty. Just tell me what happened, let him tell you.

MR. ALVA: Judge, I wish in a sane world it would be that simple.

THE COURT: Well, it should be that simple.

MR. ALVA: Well, it's not so.

THE COURT: If you are telling the truth it should be very simple, very easy.

MR. ALVA: Judge, if that were the

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case we would have trials the day after arrest.

THE COURT: Eventually we may get to that, I don't know.

MR. GRANT: This witness is not Mr. Alva's witness, he is Mr. Weinberg's witness. And if anyone has to prepare him to testify it is certainly not Mr. Alva.

MR. ALVA: Well, the Court has used, unfortunately, the term prepare. Mr. Grant has picked right up on it. I have not asked to prepare the witness. I have asked to discuss with the witness to see whether or not he has a Fifth Amendment right. The last thing any competent counsel is going to do is walk in someone blind on the faith that the truth will set him free. I will talk to my client and determine whether or not --

THE COURT: All right.

MR. GRANT: -- whether or not he has a legitimate Fifth Amendment right.

THE COURT: Anybody acting up out there just evict them, please. I don't want any nonsense from the spectators out there.

MR. ALVA: All I ask, you know, I can't speak for the delays in this hearing, I

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can't speak for the delays of 13 years. All I can speak of is from nine o'clock this morning. I ask for additional time to prepare my client. I don't believe it's unreasonable to request that he not be called by either side until at least the end of the week.

THE COURT: Oh, no, we can't wait that long. Sorry. Do it tomorrow morning.

MR. GRANT: Obviously, I will take whatever time the Court gives me in its wisdom.

THE COURT: Well, that's how much time you're going to have.

MR. ALVA: Then I will try to use it wisely.

THE COURT: Okay.