Page 2.
(At 10:00 a.m. the hearing was convened in
the presence
of the Court and the attorneys.)
THE COURT: Good morning, everyone.
MR. WEINGLASS: Yes, good morning, Your Honor. The defense
calls William Cook. And I am informed by his Counsel -- who is present --
that he did not appear yesterday or this morning. And we sent a process
server over to have him served. He was in Counsel's office I believe five
times yesterday.
THE COURT OFFICER: Can't hear you outside.
MR. WEINGLASS: I'm sorry, I should have...
The defense sent a process server over to Mr. Alva's
office, was there for about five times to try to locate and serve William
Cook, but was unable to do so. And I understand Mr. Alva's here in Court
this morning without his client. But the Court could hear from Mr.
Alva.
MR. ALVA: Good morning, Your Honor.
Page 3.
THE COURT: Good morning.
MR. ALVA: If Your Honor pleases:
Prior to my appearance before the Court yesterday at
around two o'clock, my last contact with my client was at approximately
12:15 in the p.m., at which time he had called my office as per my
instructions. And I informed him that I felt that we needed to continue
our conversation and that he should be in my office at four o'clock. He
indicated to me that would be no problem. When I then came over to the
Courtroom and the Court then ordered me if I was going to produce my
client to do so this morning, I had anticipated that he would be in my
office at four o'clock and that we would take whatever time was necessary
to discuss his rights, et cetera, and then have him here today.
I informed the defense that I anticipated his appearance
at 4:00. And at approximately 4:05 a process server did appear in my
office and thereafter came back every 20 minutes until approximately a
quarter of 6:00 in the p.m. He was the only individual connected with this
case who appeared in my office. My client did not come to my office. Did
not call
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my office.
I had given my client my card, which has my office
number, obviously. I have a 24-hour service on my number. And I received
no notice whatsoever that he called in any way. I have no reason that I
can offer the Court as to why he is not here. I can only indicate to you
that as of when I met with him yesterday in person between 9:00 and 9:15,
he was anxious to testify and emotionally unstable, that's all I can
recall.
MR. GRANT: Nothing to say. There is nothing to say, Your
Honor. We suspected that Mr. Cook was not going to ever appear and he
hasn't.
First of all, though, I think that the basis on which Mr.
Cook was to appear here if he did show up was, A, he was a witness who was
unavailable at the time of trial or with due diligence could not have been
made available, and I suppose that is the assumption that they are making,
or Mr. Cook will actually come in as a witness to establish actual
innocence under
Page 5.
the PCRA.
Could the Court inquire of Counsel on which basis they had hoped that
he would testify?
THE COURT: Well, he definitely was available during the trial.
MR. GRANT: Is that correct, Mr. Alva?
THE COURT: I don't care whether it is correct for him. I was the trial
Judge: I know he was available during the trial.
MR. GRANT: Well, there have been some conversations to state that Mr.
Cook wasn't available.
THE COURT: Well, he was incarcerated under my order.
MR. GRANT: I don't mean unavailable in the physical sense
but I mean there was some conversation that he wouldn't want to testify
because his counsel had invoked and he had invoked the Fifth Amendment not
to be involved in the matter. If that is the case then I guess that
Counsel's basis is recently-discovered evidence.
Would that be fair to say, Mr. Weinglass?
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MR. WEINGLASS: I wasn't, I wasn't trial Counsel. It was
my understanding that he was advised that he was in jeopardy of being
charged with the murder himself. And therefore it's my impression that he
was advised by Counsel that he had Fifth Amendment rights and that he
wasn't available at the time of trial.
MR. GRANT: That's why I would ask Your Honor to inquire
of Mr. Alva, not attempting to broach any attorney-client privileges that
may exist, the simple answer as to whether or not that, that privilege was
interposed when defense requested, if defense ever requested, his
presence.
MR. ALVA: Yes, sir?
THE COURT: He wants to know, he asked you a question. Would you like to
answer it.
MR. ALVA: I believe he asked the Court --
THE COURT: No, he asked you.
MR. ALVA: -- for something.
MR. GRANT: I don't necessarily know that Mr. Alva would
necessarily respond to any questions I might pose to him, that's why I
inquired if Your Honor would be kind enough to
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make the inquiry.
THE COURT: What is the position: Was your client available or not?
MR. ALVA: May it please the Court: When my client was initially
arrested and charged with the homicide --
THE COURT: The homicide?
MR. ALVA: Well, Your Honor, when he was first arrested it
was unclear to the authorities what his involvement might be.
THE COURT: But they never charged him with homicide.
MR. ALVA: Your Honor, initially that was a consideration. And when I
first --
THE COURT: I said charged.
MR. ALVA: I am unclear whether or not he was actually
charged, Your Honor. I think he might have been. However, when it became
clear, at least to this attorney, that he was not part of the homicide, I
then engaged in an effort to distance him from the prosecution of his
brother as quickly as possible. I did so at a bail hearing, I did so at
preliminary hearings, I did so in Municipal Court trials, et cetera.
During those times, it is clear that my client had a
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Fifth Amendment privilege and that he was willing and was
able to at that time exercise that privilege on the advice of counsel.
As, however, it appeared that we were successful in
distancing him from the prosecution, it then became an open question
whether or not he would be willing to testify. He and I discussed it very
peripherally, whether or not it was in his best interest to testify at his
brother's trial. I indicated to him that before that decision was made by
him -- and it could only be his decision: Not my decision, not his
brother's decision, not his brother's attorney's decision -- that we had
to discuss it in depth. I was never contacted by the defense in this
matter as to whether or not my client would be a witness in the case.
However, I was kept very, very briefly and very tangentially aware, kept
informed of the facts of the trial as it proceeded by my client. Who
ultimately indicated to me -- and I have made this of record so it is
clearly not privileged -- that he said to me it had been decided that he
would not testify. He never told me who had made the decision, whether it
was him or whomever; but we
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never then discussed what his rights were, what the
strategies would be, what he would say, what he wouldn't say. So I can't
give you anymore information than that.
Whether or not you rule he was available or not is up to
you based on those facts. But those are the facts and I have related them
to you.
MR. GRANT: My only question of Mr. Alva is: At the time
when he was willing and able to testify, and related that a decision was
made that he was no longer needed, was the Fifth Amendment privilege
against self-incrimination still being interposed by you at that time?
MR. ALVA: It was not being interposed, it was being brought up by me as
a consideration.
MR. GRANT: For his benefit?
MR. ALVA: For his benefit. But he did not tell me he
didn't want to testify, he didn't tell me that he wanted to invoke
that.
MR. GRANT: Did you ever indicate that to Mr. Jackson:
That he would not be available because of his Fifth Amendment
privilege?
MR. ALVA: No, I had no conversations
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with Mr. Jackson whatsoever, either initiated by himself or by myself,
or initiated by his request.
MR. GRANT: Thank you very much for your candor, Mr. Alva.
MR. ALVA: Does the Court have any other questions?
THE COURT: I don't know, it doesn't look like he is going to show
up.
MR. WEINGLASS: Your Honor, to address that point: It was
my understanding yesterday that an arrangement was agreed upon between the
prosecution and Mr. Alva that if Mr. Cook showed up, that he would be
permitted to enter the Court without being arrested and testify. But after
that, he would be delivered to the warrant section and, presumably on the
basis of the outstanding warrants, jailed. And I think that --
THE COURT: Not necessarily jailed. We don't know what would happen.
MR. GRANT: That wasn't what we agreed upon.
THE COURT: That wasn't what he said.
MR. WEINGLASS: He would be delivered
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to the warrant section without outstanding warrants.
THE COURT: Right, but that doesn't necessarily follow that he would be
jailed.
MR. GRANT: Mr. Weinglass, for your own edification, for your own
edification --
THE COURT: Counselor, you can't say what was the agreement between the
District Attorney and the --
MR. WEINGLASS: It is in the record, it was announced in open Court.
THE COURT: Okay, so if you are going to quote him, quote him
exactly.
MR. WEINGLASS: It was announced that he would be delivered and
surrendered to the warrant section.
THE COURT: Sure.
MR. WEINGLASS: Now, to Mr. Cook's impression, that might have meant to
him that he was going to jail.
THE COURT: No, no. No, no.
MR. WEINGLASS: I would just ask the Court if the Court
would remove that? Judge, if the Court would remove that requirement --
THE COURT: Counselor, no, no, you
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have no standing in this matter. That is strictly between Mr. Alva as
the attorney for Cook --
MR. WEINGLASS: No, I have standing for Mr. Jamal to attempt to bring in
William Cook.
THE COURT: Well, serve him with a subpoena.
MR. WEINGLASS: We attempted yesterday on five occasions.
THE COURT: Okay.
MR. WEINGLASS: All I am saying is he might come in if the
Court will lift the requirement that he surrender to the warrant section.
I am only making that request for Mr. Jamal, so that we could have a
witness here.
MR. GRANT: Your Honor, I think Mr. Weinglass is laboring
under a misimpression. If Mr. William Cook were going to be arrested when
he showed up, or after he testified, police officers would arrest him.
But by definition, here in Philadelphia, Mr. Weinglass,
when we take someone who has outstanding bench warrants and we take him to
the bench warrant hearing room,
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usually what happens and customarily what happens is the
person is told you didn't show up for your trial, we are going to give you
a subpoena to go before another judge and explain why you didn't show up.
And if the judge accepts that, then he will give you a trial date at which
time you will go to trial, but you will be released on bail in the
interim.
Now, the charges for which there are outstanding
warrants, to my knowledge, the most egregious offense is an auto theft.
Those cases are generally tried in what is called the waiver program,
meaning judges try those cases without juries, they are not deemed as
serious as other felonies and the sentences are appropriately less severe.
So Mr. Alva, who practices here in Philadelphia, is aware of that, it's
common knowledge here.
And secondly, Mr. Cook never knew that there was any
agreement at all because apparently he never spoke to Mr. Alva. So there
is no arrangement to arrest him. And if he is not here, it's not because
we're threatening him.
MR. WEINGLASS: I again ask the Court
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to lift the requirement that he surrender to the warrant section so
that he could be brought in?
MR. GRANT: I don't think Your Honor's entitled to violate the law
yourself.
THE COURT: I can't do that.
Well, he is not here. I don't intend to sit here all day
and wait. I will return to my chambers. And if he should show up give me a
call and I'll be back.
MR. GRANT: Your Honor, in lieu of, I mean I would like to
accommodate Mr. Weinglass forever and a day but I do have other business
concerns. I would like to know, in lieu of Mr. Cook showing up, do we have
to reconvene for Your Honor to conclude the proceedings and give us an
approximate date when you could reach a final decision?
THE COURT: No, as far as I am concerned, the proceedings
are concluded. They are concluded. Now, whether or not he can get somebody
in here, I don't know. But as far as I'm concerned, it's concluded.
And let me say this: It may be that the Supreme Court may
send it back again if they ever get him. If the Supreme Court is
Page 15.
interested in that. But I'm not going to try to guess what they are
going to do with it.
MR. BURNS: Your Honor, for the record: I am handing to
Counsel two copies of our proposed conclusions of law (handing).
Thank you, Your Honor.
MR. GRANT: Your Honor, for my edification: If nothing
transpires with respect to Mr. Cook's availability by the end of the day,
may I presume, Your Honor, that the proceedings at this stage are then
terminated, and they may be reopened at some later point, but for all
intents and purposes, that at the end of the day this matter is
concluded?
THE COURT: Absolutely.
MR. GRANT: Thank you, Your Honor.
MR. WEINGLASS: Your Honor, may I have an opportunity to
meet with Mr. Jamal in the meeting room that's available on this floor?
THE COURT: Yes, as long as the Sheriff has no objections, I don't have
any objections.
Anything else?
If not, see you another day.
THE COURT OFFICER: This Court stands
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adjourned.
- - - - -
(The PCRA hearings were concluded at 10:12 a.m.)
- - - - -
Page 17.
I hereby certify that the proceedings and evidence are
contained fully and accurately in the notes taken by me on the trial of
the above cause, and that this copy is a correct transcript of the
same.
Official Stenographer
Date
The foregoing record of the proceedings upon the trial of
the above cause is hereby approved and directed to be filed.
Judge