Verfahren gegen Mumia Abu-Jamal

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

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Status Listing

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Wednesday, September 18, 1996
Courtroom 707, 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 10:05 a.m. the hearing was convened in
the presence of the Court and the attorneys.)

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THE COURT: Good morning, everyone.

MR. WEINGLASS: Good morning, Your Honor.

THE COURT: Good morning.

MR. WEINGLASS: Your Honor, just briefly: On May 22nd of this year, while his appeal was pending in the Pennsylvania Supreme Court, Mr. Jamal filed an application requesting a remand to a Court of Common Pleas in Philadelphia to take the additional testimony of the witness Veronica Jones and others in order to complete the factual record respecting claims which were asserted in his PCR Petition and amended Petition. Attached to Mr. Jamal's request was a five-page declaration of Miss Jones verifying that she had testified falsely at his trial and that the false testimony was the product of threats made to her by detectives while she was in custody. The District Attorney opposed the request for remand, in a lengthy

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17-page answer arguing to the Supreme Court of Pennsylvania that a remand was not necessary on the basis of the record that was then before the Supreme Court, for various reasons which were alleged in their papers, and they asked the Supreme Court of Pennsylvania to proceed with the appeal without having the testimony of Miss Jones taken.

Mr. Jamal replied to the District Attorney's answer at some length, pointing out to the Supreme Court of Pennsylvania that Miss Jones' testimony was central and pivotal because it bore particularly on the issue of prosecutorial misconduct. Misconduct which Mr. Jamal alleged infected his entire case, not just Miss Jones' testimony but the testimony of other witnesses, such as the witness Chobert, who also denied that he had seen people run from the scene, and witness Singletary, as well as witness Wakshul, who was not produced.

In short, the defense position was that Miss Jones' testimony not only reflects new facts on the scene of the alleged crime, but her testimony also gives a clearer picture of the way in which the prosecution proceeded in the

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original trial.

Then, in an extraordinary procedure, the District Attorney requested permission of the Supreme Court to file a 15-page answer to the defense reply, conceding in it's opening paragraph that it was unclear if the Rules even permitted such a process. But nonetheless, the District Attorney did answer the reply, urging now with increasing vigor that the Supreme Court not remand the case or hear the testimony of Veronica Jones.

Despite the District Attorney's objections, on September 4th of this year the Supreme Court of Pennsylvania ordered that the case be remanded for purposes of a -- to use their words -- a hearing -- which is a term of art -- not for purposes of briefs, nor for purposes of argument, but for purposes of a hearing.

Now, in order to comply with the remand order of the Supreme Court, Mr. Jamal is prepared today to put on the stand the witness who the Supreme Court has indicated it would like to hear from. Namely, Veronica Jones.

And I would like to introduce to the

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Court at this time Miss Jones, who is seated here at Counsel's table, Veronica Jones, together with her attorney, Miss Jennifer St. Hill. Ms. Hill is here as well.

MS. St. HILL: Good morning, Your Honor.

MR. WEINGLASS: And we are prepared and ready to proceed with Miss Jones' testimony right now.

MS. FISK: Good morning, Your Honor.

My understanding of the application for relief filed by the defense last May was to present the testimony of Veronica Jones. It was alleged in that petition that Miss Jones -- and in very general language -- alleged that Miss Jones had not been called by the defense because, as the defense generally claims, they had not been able to locate her until after the briefing with the Supreme Court started.

My reading of the Supreme Court Order to Your Honor is for Your Honor to determine whether or not Counsel in fact have a right or have met their burden of even proving that Miss Jones is an after discovered witness. It remains the Commonwealth's position that there

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has been no proof offered that Miss Jones was unavailable to them at the time of the Post-Conviction Relief Act hearing, that she could not be located as a result of diligent efforts, or that this testimony was unavailable.

Nevertheless, and without conceding our claim that there has been no proof given, we would ask that Your Honor set a date for a hearing for the defense not only to offer Miss Jones, but to first at least arguably assert their allegation and provide proofs that they were diligently searching for Miss Jones and that Miss Jones was not found by them until the date when they allege that she was found.

I would note, for example, Your Honor, with regard to that, that during last summer's hearings, at the beginning of the hearings when defense Counsel noted that they were unable to locate a number of witnesses and Your Honor had given a fairly short hearing date, the Commonwealth offered to and did indeed find and provide to defense each and every witness, civilian as well as police, as well as retired police, that the defense noted they needed and wanted to call. At no time on any of those

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lists was the Commonwealth asked to look for or provide Miss Jones as a witness.

It is, therefore, our position that before Miss Jones testifies -- and certainly not at today's proceeding, which is a status listing -- that the defense first be required to present some evidence and testimony with regard to their efforts to locate Miss Jones. We would ask, since we are here and Your Honor is clearly the proper Court to make determinations both with regard to whether or not she was available, and if she was not with regard to her credibility, we would agree that since we are here that Your Honor, in a single proceeding, rather than perhaps causing various remands, also at that time take the testimony of Miss Jones, so this matter can then be returned to the Supreme Court with a ruling by Your Honor as to whether or not Counsel is even entitled at this stage to have Miss Jones' testimony considered.

MR. WEINGLASS: Your Honor, you will recall that at the hearing the first application we made to the Court was a discovery application: We wanted Miss Jones' address, and

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we wanted the address of all the witnesses. We did not want to be in a position, because we learned by experience, to have the District Attorney send the police or detectives out to pick up a witness.

Veronica Jones was an intimidated, coerced witness at the trial. We did not want to send the police out to bring her to Court. They did, as you recall, threaten to arrest one of our witnesses, Hightower, and they brought other witnesses, such as Harkens, to Court and they sequestered him in the Homicide division and we were compelled to go down there and we were not allowed to interview him because Mr. Harkens, to my observation, who was totally frightened, refused to talk to us in the presence of their detectives.

That's why we wanted her address. We clearly indicated right at the outset we wanted Veronica Jones' address and we wanted all the other witnesses' addresses so we could bring them to Court, not have the police or detectives bring them. Particularly true with the case of Veronica Jones, who had previously been threatened and coerced into giving false

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testimony.

MS. FISK: What I find particularly notable about Counsel's comments, not to belabor the point, is that while on the one hand Counsel is claiming that they did not know of Miss Jones' allegations until May of this year, Mr. Weinglass is now claiming that they didn't want the Commonwealth to assist them in finding Miss Jones because he knew that Miss Jones had been an intimidated witness last summer. It is precisely for that reason the Commonwealth is asking for strict proof from the defense that Miss Jones was not known to them or available to them who would provide the testimony they are now claiming she would, and that testimony be presented prior to Miss Jones being offered as a witness.

THE COURT: Well, the Court will set October the lst, Tuesday, October the lst, 1996, as the date for further proceedings in this case. We will have to bring the Defendant down.

MS. FISK: Certainly, Your Honor.

THE COURT: Okay.

MS. FISK: I would note prior to that --

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THE COURT: We don't have the Defendant here today so we can't proceed.

MR. WEINGLASS: No, Your Honor, we anticipated that problem. And we contacted Mr. Jamal personally, and we asked him if we could proceed today with the taking of the testimony of the witness Jones in his absence, and he specifically gave us permission to do so.

THE COURT: Well, unless he is here to tell me that I can't take your word for it.

MR. WEINGLASS: That's why, Your Honor, we asked the Court to bring him here.

THE COURT: No, he will be down here October the lst, and we will proceed at that time.

MR. WEINGLASS: Oh, I just want the record to show --

THE COURT: Well, the record will show that I said that he will be here October the lst, 1996.

MR. WEINGLASS: Right, and we specifically asked the Court to bring him here today so we could have a hearing.

THE COURT: This was all legal things. I had to find out where you were going. Because

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if you read this Order of the Supreme Court, it says now, this 4th day of September, 1996, the matter is hereby remanded to the trial Court for a hearing within 30 days of the date of this Order to determine whether Appellant is entitled to a supplemental Post-Conviction Relief Act hearing, and that Court is to render its opinion within 30 days of said determination. Jurisdiction is retained.

Now, that's their Order. And I didn't receive this Order from the Supreme Court until I found out that you people had filed papers. I knew nothing about it. You didn't give me a copy of your papers. I didn't know where you were. But be that as it may, I finally got the Order from them.

And that Order is really mostly legal. I don't think he is entitled to a supplemental Post-Conviction Relief Act hearing. He may be entitled to a second Post-Conviction hearing. I read through the statute and nowhere does it say anything about filing supplemental Post-Convictions. Especially when it's up at the Supreme Court.

But you can file a second PCRA and go

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back up to the Supreme Court and then they could rule on the whole thing at one time.

MR. WEINGLASS: Well, that is a very good point, Your Honor, because in their papers to the Supreme Court, on page 14 of their original answer, and on page 16 of their supplemental answer, the District Attorney argued to the Supreme Court precisely what Your Honor is suggesting. The Assistant District Attorney said to the Supreme Court don't remand this case for taking Veronica Jones' testimony, make Mr. Jamal file a second PCRA, and in that he could take her testimony. But the Supreme Court rejected that argument.

THE COURT: Oh, they did?

MR. WEINGLASS: They did.

THE COURT: Well, you see, they don't keep me informed what they are doing up there. So if you say they said that, then I will not give him a second PCRA.

MR. WEINGLASS: No, they want a hearing now. For Miss Jones' testimony.

THE COURT: They will have a hearing now. October the 1st. But you're saying that that's what the D.A. had asked for and the

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Supreme Court denied it.

MR. WEINGLASS: Yes. They in their papers twice asked the Supreme Court to not have a hearing with Miss Jones now, not on a remand, they said to the Supreme Court let Mr. Jamal file a second PCRA and then he could have his hearing. The Supreme Court then entered an Order saying we want the remand hearing now. And that's why we are here today, pursuant to that Order.

THE COURT: The Supreme Court also could have said rather than a supplemental we are going to give him a second PCRA.

MR. WEINGLASS: No, this is the problem.

THE COURT: Look, you know, you tell me what the Supreme Court says. This is what I have (displaying). I don't know what they are thinking or what they say. Nobody takes me in their confidence.

MR. WEINGLASS: But you also have about 60 pages of briefs.

THE COURT: I didn't see 60 pages of briefs. I don't have that. The --

MR. WEINGLASS: You have it now.

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THE COURT: No, I don't have it now.

MR. WEINGLASS: No one has provided you with that?

THE COURT: Only as to the pleadings certain things from the D.A. I called the Supreme Court and the gentleman up there says well, you should have it, I don't know why you didn't get it. He was going to give it to me, and then all of a sudden I had it from the Assistant District Attorney, I said I don't need it now. But that was only the pleadings, no briefs.

MR. WEINGLASS: No, the pleadings are briefs. The pleadings are in the form of briefs, Your Honor, and you could see their arguments twice. They say to the Supreme Court don't send this case back, make Mr. Jamal file a second one. But the Supreme Court did --

THE COURT: I know they sent it back but they haven 't made a decision on that point. If they are asking me to make a decision, that's what I would do.

MS. FISK: Your Honor, it is our position that that is precisely what the Supreme Court has done, that the Supreme Court has asked

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you to determine whether or not defense at this time has a right to a second hearing to have Miss Jones' testimony considered as evidence with regard to the PCRA. That is why it is our position that Counsel must first be put to their proofs with regard to whether or not she was unavailable, and then present her testimony. And at the completion of that, Counsel can ask you to accept that testimony as evidence that you can then supplement to the record.

THE COURT: What is the difference if it is a second PCRA or supplemental, they are going to have it all up there?

MS. FISK: Well, it is the Commonwealth's position that Counsel does not even have the right, certainly not based on the pleadings, to present Miss Jones' testimony as evidence which should go towards the PCRA because there has been no showing as to her unavailability at last summer's hearing. That is why we are asking pursuant to the Supreme Court Order that Your Honor hear all the testimony that is being offered now, including this young lady's testimony, as well as other testimony they intend to present to show why she

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was unavailable; and at the completion Your Honor will be in a better position to determine whether or not based on that evidence which has been offered, Counsel has a right to have that evidence now taken to be considered and supplemented to the original testimony of the P --

THE COURT: Is there anything in the Act itself that says that? I read the Act over several times.

MS. FISK: No, the Supreme Court --

THE COURT: I said the Act.

MS. FISK: No, Your Honor. The Supreme Court has placed at your door the determination as to whether or not the hearing is to be reopened. It is how I read that opinion.

MR. WEINGLASS: You see, Your Honor, what the Supreme Court --

THE COURT: Well, they could have made that decision themselves.

MR. WEINGLASS: Exactly.

MS. FISK: And they did not. They had to ask Your Honor.

THE COURT: Well, that is the point.

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Why didn't they? That is a legal issue.

MR. WEINGLASS: Because they want to hear from Veronica Jones.

MS. FISK: That is not what the opinion says either, Your Honor.

THE COURT: They didn't say that in this Order.

MR. WEINGLASS: They did, they called for a hearing.

THE COURT: A hearing to determine whether appellant is entitled to a supplemental Post-Conviction Relief Act hearing. I said to you I have read the Act over several times and nowhere does the legislature speak of a supplemental hearing. Now, if you want to consider it as a second PCRA, okay.

MR. WEINGLASS: No, Your Honor, this is the problem from the point of view of the Supreme Court -- if I may speak from their perspective.

THE COURT: No.

MR. WEINGLASS: They have a witness who testified at the trial who says to the Supreme Court in a declaration I testified falsely and I was coerced into testifying

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falsely. Now, what does the Supreme Court do with that? The Supreme Court reads that declaration --

THE COURT: Go down --

MR. WEINGLASS: -- and they say we want to hear from her.

THE COURT: Yes.

MR. WEINGLASS: We want to hear from her.

THE COURT: Why do they ask me to determine that? That is a legal issue: They could have determined that.

MR. WEINGLASS: You see, what they are saying is they want first a hearing. That's in the Order.

THE COURT: That's what she is talking about. She is talking about a hearing.

MR. WEINGLASS: Now, if there is a hearing and Your Honor hears from Veronica Jones, then you determine whether or not you open the entire PCRA hearing to take the testimony of many other witnesses.

THE COURT: No, I would not. Because it's not in the statute. I believe in following the statute to the letter. When the legislature

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has spoken about something, we all have to obey it. We can't interpret it the way we would like to interpret it.

MR. WEINGLASS: Your Honor, I don't think we are dealing in terms of the statute. The Supreme Court has --

THE COURT: That's what it is.

MR. WEINGLASS: The Supreme Court says this to this Court.

THE COURT: Why didn't the Supreme Court say to me give him a supplemental hearing, take the testimony of the witness?

MR. WEINGLASS: Because the Supreme Court correctly said to this Court we want you to hear from Veronica Jones.

THE COURT: Where do they say that in the Order?

MR. WEINGLASS: They say because --

THE COURT: Counselor, you want to go back up to the Supreme Court, go ahead. And get them to say specifically what they want me to do.

MR. WEINGLASS: The Supreme Court was given one exhibit on one witness: Veronica Jones. It read the exhibit and it said to this

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Court we want to hear from this witness.

THE COURT: Well, why don't they say that? Why don't they say that --

MR. WEINGLASS: That was the only issue before them.

THE COURT: -- in plain English? Why didn't they say Judge, we want you to hear from the witness and give it to us as a supplemental? Why ask me for my opinion?

MR. WEINGLASS: Because the Supreme Court read the briefs from both sides.

THE COURT: I don't care if the Supreme Court read the briefs. It's under the statute that tells you how you are supposed to handle these PCR matters. Neither I, nor do I believe that the Supreme Court, has the authority to deviate from what the legislature has said.

MR. WEINGLASS: The Supreme Court's position as I read it is that we do not have a complete factual record yet on this case to decide it. And we want that complete factual record.

THE COURT: Wouldn't it be nice if they said that in plain language.

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MR. WEINGLASS: It is clearly implicit if you read the pleadings.

THE COURT: It is not to me.

MR. WEINGLASS: If you read the pleadings.

THE COURT: Counselor, I will tell you what I will do. I will try to call the Supreme Court and find out what they want me to do. Between now and October the 1st. That's what I will try to do. Because I want to follow their Order. But this Order, this per curiam Order, doesn't mean anything to me. I don't know what they want me to do, if they want me to decide whether you could file a supplemental, or do they want me to decide whether this is a second PCRA.

MR. WEINGLASS: Clearly not the later, Your Honor.

THE COURT: Well, that's what you say: Clearly. They didn't say that in this order.

MR. WEINGLASS: The D.A. asked for it and they rejected it. Judge --

THE COURT: I will call the Supreme Court, I will say I don't know what you mean. And let them supplement this order so I know

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exactly what they want me to do.

MS. FISK: Your Honor, it is our position --

THE COURT: Because if they want me to decide whether you are entitled to a supplemental, I say no because it's not in the statute.

MS. FISK: Your Honor, it is our position that the Supreme Court has remanded this matter to Your Honor because defense Counsel did not in their pleadings provide sufficient basis for proving that they had a right to reopen these proceedings and claim that the witness was in fact unavailable.

We would ask with regard to the October 1st hearing for a full list of witnesses that Counsel intends to put on in addition to Miss Jones, certainly at least a week prior to that listing so we are fully advised as to who those witnesses are going to be. I would ask second, Your Honor, the Court to address the following. That being that yesterday afternoon the Commonwealth was served with a subpoena filed upon us by the defense, we suspect to raise the ire of the Court more than

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any legitimate basis, that is a subpoena seeking the entire Commonwealth file in the case of Commonwealth versus Mumia Abu-Jamal.

With regard to the limited breadth of the Supreme Court Order and the limited purpose for which the Supreme Court has remanded this Order, we would ask Your Honor at this time to quash that subpoena. It is clearly improper and invalid.

Their very own defense application to the Supreme Court was simply to ask that Veronica Jones be permitted to testify. To use that as a pretext to seek the entire Commonwealth file, which obviously includes work product as well as other undiscoverable documents, is clearly improper. So we would ask that that subpoena be quashed and we would ask for a full list of witnesses at least one week prior to the October 1st hearing.

MR. WEINGLASS: You see, this is a replay.

THE COURT: Yes, this is a replay. I am not going to replay the case entirely. I am going to try to find out exactly what they want me to do and that is all you are going to be

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limited to.

MR. WEINGLASS: What is being replayed here is the District Attorney's attempt to prevent us from getting evidence that's in their file and then they say you didn't use due diligence, that's why you don't have it. We used due diligence, we subpoenaed their file.

And Your Honor about two months ago, in another case, entitled the Wrighter case, here in Philadelphia, after 22 years the D.A. finally turned over their file to a defendant and it had 142 statements which had never previously been turned over.

We are now in the 15th year of Mr. Jamal's incarceration. We now want to see, after we heard from Veronica Jones of what they did to her, what they did to the other witnesses --

THE COURT: They didn't tell me they wanted me to let you open the whole case again. I don't think that's what the Supreme Court wants.

MR. WEINGLASS: That is what the Supreme Court --

THE COURT: Where in the statute --

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MR. WEINGLASS: That's what the Supreme Court said.

THE COURT: Well, where is it in the statute that you are entitled to that? All the statute says is you are entitled to a second PCRA hearing.

MR. WEINGLASS: Unlike Your Honor, I don't second guess the Supreme Court.

THE COURT: Neither do I. That's why I am going to ask them exactly what they want me to do.

MR: WEINGLASS: Right. Now, one other thing, Your Honor. We filed --

MS. FISK: May I ask Your Honor first for a response to my request, that is first for a list of witnesses at least one week prior, and second, that the subpoena for the Commonwealth file --

THE COURT: You should have a list of witnesses. I am not going to delve into this whole area. I want to find out exactly what the Supreme Court wants me to do. And we are going to be limited strictly to what they want. Your telling me what they want doesn't mean anything to me. I want to hear it from the Supreme Court

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itself.

MR. WEINGLASS: Well, I suggest Your Honor read the pleadings.

THE COURT: I suggest that I contact the Supreme Court and find out exactly what they want me to do.

MR. WEINGLASS: Because in the pleadings we set forth what we want.

THE COURT: Counselor, I am not going to second guess the Supreme Court. If I was on the Supreme Court I would have already ruled on his first PCRA.

MR. WEINGLASS: I'm sure.

THE COURT: Now you would be on the second PCRA.

MR. WEINGLASS: I'm sure that's where we would be.

THE COURT: It's been up there over a year.

MR. WEINGLASS: Not quite, but.

THE COURT: Not quite?

MR. WEINGLASS: No, we filed our first briefs in February.

THE COURT: I don't care about your brief. When did it go up there?

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MR. WEINGLASS: It was later, Your Honor.

MS. WOLKENSTEIN: October.

MS. FISK: September of last year.

THE COURT: September of last year. We are now in September of this year.

MR. WEINGLASS: Your ruling was September 15th of last year.

Your Honor, we have also filed with the Court a motion which I assume the Court has read.

THE COURT: Counselor --

MR. WEINGLASS: It is a 15-page motion.

THE COURT: Counselor, I am not going to consider any motions or anything else until I hear from the Supreme Court exactly what they want me to do. So you can do anything you want, but until I hear from the Supreme Court I am not going to hear your motions, whatever else you're filing.

MR. WEINGLASS: And I assume you are not going to hear the District Attorney's motions.

THE COURT: No, I am not going to hear

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anything, until I hear from the Supreme Court to know exactly what they want me to do. And that's what I will do.

MR. WEINGLASS: When will the Court --

THE COURT: October the 1st.

MR. WEINGLASS: We will be here on October the lst?

THE COURT: Yes.

MS. FISK: Prior to October lst, perhaps in one week we should have an additional status listing then, after Your Honor has contacted the Supreme Court, so that would enable, once Your Honor has determined what the breadth of this hearing will be, what the scope of this hearing will be, that will enable Counsel to provide the Commonwealth prior to the October 1st hearing with any witnesses they intend to present.

THE COURT: I don't know how, they will just have to extend their 30 days. I don't see how I could tell you now. I don't know when the Supreme Court's going to answer me. When they answer me, I will know what they want me to do. And I'll do it. You will get copies, I suppose, of whatever they tell me.

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MR. WEINGLASS: We will be notified.

THE COURT: Or you will be notified.

MR. WEINGLASS: By the Court.

THE COURT: Not by me. You could be notified by the Supreme Court.

MS. FISK: Is Your Honor retaining the October 1st date as a hearing date, is my question, or should we consider that as a status date?

THE COURT: I don't know. Depending on what the Supreme Court tells me, it will either be a status or we will go through with the hearing of evidence.

MS. FISK: And my request is, if based on what the Supreme Court advises you Your Honor determines that that should be a date on which evidence is presented, that if in fact that occurred there would be a prior listing, or at least a prior date by which defense Counsel is obligated --

THE COURT: How could I give you a prior date?

MS. FISK: Well, that is the difficulty.

THE COURT: Well, I have a matter on a

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PCRA on September the 30th. And I can't change that. I am giving you the closest date I could give you: October 1st.

MS. FISK: And my request, Your Honor, is to have a status date perhaps seven days from today's date in the hopes that Your Honor has already communicated with the Supreme Court.

THE COURT: Yes, but I don't know when I am going to get an answer.

MS. FISK: I understand that.

THE COURT: I could communicate right now, send them a letter saying I don't understand your Order, would you please tell me exactly what you want me to do. And I will tell them what I think.

MS. FISK: My concern, Your Honor --

THE COURT: They may very well say you're wrong, consider it as a supplemental, okay. Then I will consider it.

MS. FISK: My concern, Your Honor, is that we would return on October 1st and there would be a hearing for which the Commonwealth has not received any notification as to the witnesses defense intends to call.

MR. WEINGLASS: And we received no

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discovery. The Court has two applications and the Court indicated it is not going to rule on either.

THE COURT: Well.

MS. FISK: Your Honor, it is our position that this Court has previously ruled that there is no discovery in PCRA proceedings.

MR. WEINGLASS: This is a new proceeding on remand.

THE COURT: Yes.

MR. WEINGLASS: And, Your Honor, also, I think you ought to inform --

THE COURT: But why do you need discovery?

MR. WEINGLASS: For the reasons set out in our 15-page motion.

THE COURT: All that you want to do is present this witness.

MR. WEINGLASS: No, this witness, when you hear this witness, it will open the door to other relevant testimony.

THE COURT: But the Supreme Court, if they sent it down for one specific purpose, that's the only purpose I'm going to hear it.

MR. WEINGLASS: They didn't limit it

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to one particular purpose.

THE COURT: I don't know what they are limiting it to. Until we get --

MR. WEINGLASS: That's why...

THE COURT: I am not on the Supreme Court.

MR. WEINGLASS: Your Honor, I think you ought to inform the Supreme Court that both Counsel, those in the District Attorney's Office and the defense, agree that Veronica Jones should be heard from.

MS: FISK: That is not our position, Your Honor.

MR. WEINGLASS: I heard them say they concede not only should --

THE COURT: If it is heard as a second PCRA, you would be entitled to it.

MR. WEINGLASS: They indicated five minutes ago that she should be heard in this remand hearing.

THE COURT: No, not as a supplemental Post-Conviction.

MR. WEINGLASS: Yes, I believe I heard it correctly, I wrote it down that the D.A.'s position is Veronica Jones should be heard from.

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THE COURT: Counselor, until I get further instructions from the Supreme Court exactly what they want me to do, I am not going to do a thing. I will set it down for October the lst, because that's supposedly within their 30 days, and we will see. Maybe I'll have an order before then.

MS. FISK: Very well.

MR. WEINGLASS: But I think it would help the Supreme Court if Your Honor indicated that both parties agree that Veronica Jones should be heard from.

THE COURT: Why don't you go up and tell them you both agree?

MS. FISK: Because, Your Honor, Mr. Weinglass is once again misstating the proceedings in this room.

THE COURT: I am not going to get involved in that nonsense, Counselor. I don't know what went on before the Supreme Court. I have already written my opinion. If they want to reverse it, fine, let them reverse it. If they want to affirm it, let them affirm it. That's all I have to say about it.

MR. WEINGLASS: They indicated they

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need additional testimony.

THE COURT: Well, I want to find out what they want.

MR. WEINGLASS: Clearly they want Veronica Jones.

THE COURT: Well, we will find out, Counselor, when I ask them. Because that statement in there is a legal statement.

MS. FISK: Well, Your Honor, also --

MR. WEINGLASS: It seeks facts.

THE COURT: No, it says whether you are entitled to a supplemental Post-Conviction Relief Act hearing.

MR. WEINGLASS: That's only after they say there should be a hearing.

THE COURT: A hearing to determine whether or not you're entitled to. Well, now you got the hearing.

MR. WEINGLASS: This is not a hearing, this is argument. A hearing is --

THE COURT: That's why I say it is a legal question which they could very well have decided. They could have said to me he is entitled to a supplemental hearing, give him a hearing, take the testimony of Jones or whoever

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else they want. They could tell me that.

MR. WEINGLASS: They said remanded to the trial Court for a hearing.

THE COURT: Yes.

MR. WEINGLASS: Now, that means testimony. And the testimony is Veronica Jones' testimony.

THE COURT: Okay, we will set it for October the 1st. But --

MS. FISK: Until Your Honor hears from the Supreme Court will Your Honor allow the subpoena that has been filed on the District Attorney's Office to simply be continued and the Office not to be held in contempt for failing to comply with it?

THE COURT: Of course not, because we don't know exactly what the Supreme Court wants.

MS. FISK: That is correct, Your Honor.

Thank you, Your Honor. We will see Your Honor.

MR. WEINGLASS: I would ask for one moment to confer with Counsel.

THE COURT: Okay.

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

MR. WEINGLASS: Yes, Your Honor. So it is clear, in the motion that we filed, we asked the Court to recuse itself.

THE COURT: Denied. The Supreme Court sent it to me: How am I going to recuse myself?

MR. WEINGLASS: Oh, you have that power.

THE COURT: Oh, of course, I know. But I am not going to recuse myself. If the Supreme Court didn't want me to hear it, they wouldn't send it to me. They sent it to me, that is their Order: I am going to hear it.

MR. WEINGLASS: You won't recuse yourself?

THE COURT: No. Why should I? That's what the statute says, it goes back to the trial judge. Who knows the case better than I do?

MR. WEINGLASS: Well, Your Honor --

THE COURT: What other judge? He would have to read through all of that testimony and it would be a year before he knows what happened in the prior trial.

MR. WEINGLASS: Your Honor is aware of the fact that in other instances, not in this

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case, the appellate courts have sent back cases that Your Honor has heard with the specific direction it be heard by another judge.

THE COURT: Well, if they want that they should say that.

MR. WEINGLASS: Because of the way this Court conducted the original hearing.

THE COURT: That's happened before.

MR. WEINGLASS: It happened this year.

THE COURT: That was not the Supreme Court.

MR. WEINGLASS: It was the appellate court.

THE COURT: It was not the Supreme Court.

MR. WEINGLASS: It was an appellate court.

THE COURT: It was a panel of the Superior Court.

MR. WEINGLASS: Exactly.

THE COURT: And the Supreme Court has the ultimate control of the case in this jurisdiction.

MR. WEINGLASS: But that panel sent the case back to this Court.

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MS. FISK: Your Honor --

THE COURT: I won't sit here arguing about what a panel does.

MR. WEINGLASS: The panel refused to let the Court hear the retrial because of the way you conducted the original case.

THE COURT: Well, why didn't you argue that in the Supreme Court?

MR. WEINGLASS: Well, the Supreme Court remanned and you have the power to recuse yourself right now.

THE COURT: I know I have the power but I am not recusing myself. Now, if you wanted the Supreme Court to order me, go back up and have them order me off. I think the only thing that that's going to do is delay further an ultimate decision in this case. And that's all you're doing here. You have been dragging your feet all along.

MR. WEINGLASS: Your Honor, we are prepared today to put Veronica Jones on the stand.

THE COURT: Well, I told you, Counselor, I am not going to do anything until I get specific instructions as to exactly what the

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Supreme Court wants me to do.

MR. WEINGLASS: A hearing they said.

THE COURT: I know.

MR. WEINGLASS: We want you to hold a hearing. That's what we are here to do today.

THE COURT: Fine, you go back up to the Supreme Court and say will you please tell the Judge to have a hearing and take testimony from Jones. It's all right by me. You can go up there. You could go up there before. You could go up --

MR. WEINGLASS: Your Honor, we have been briefing that issue since May. And now we're in mid September and we are here.

THE COURT: Is it my fault? I made my decision within a week.

MR. WEINGLASS: And they made their decision on September 4th and we are ready on September 18th.

THE COURT: Exactly what do they want?

MR. WEINGLASS: They want a hearing.

THE COURT: They want to hear Veronica Jones, let them say that. You know, it's very easy to put it in plain, ordinary English so that no one could misinterpret what it means.

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MR. WEINGLASS: Your Honor, there was one issue before the Supreme Court and that was --

THE COURT: Counselor, I am not there. You are there. You tell me one thing, she tells me another thing. I am not going to second guess. I am going to ask the Supreme Court to be specific as to exactly what they want me to do.

MR. BURNS: Could I attempt to clarify, Your Honor, if I may?

THE COURT: All right.

MR. BURNS: I think we are agreed that there is certainly no problem with Your Honor asking the Supreme Court for more specificity. Whether or not they comply with that request I think that one thing is clear: What the defense was telling the Supreme Court in the appeal was that Veronica Jones was not available to them to be called as a witness. The Supreme Court recognized that along with that averment goes a certain burden of proof. The Defendant is being given in this remand Order an opportunity to show that in fact it was not possible for them, despite their diligent efforts, to find Veronica

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Jones and call her as a witness at the PCRA hearing. I think we are all agreed that whatever else is true, the defense is entitled to present evidence on that question, to show that it's true that they were not able to find her.

Now, it's their burden to prove that, so one of the purposes, if nothing else, of this remand is for them to have an opportunity to prove what they claim is true: That she was not really available.

Now, as part of their proof on that issue they may choose to call Veronica Jones as a witness in order to help them to prove their assertion that she was not available for the PCRA hearing. We may also agree that as an offer of proof, her evidence may be put on the record without conceding that the substance of the testimony can be considered, because before that stage is reached they first have to prove that she really was unavailable. And they haven't done that yet.

So the one thing that the Supreme Court Order says is give them an opportunity to prove that she really was unavailable. We

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certainly would have that much, and we certainly while we are all here should have her testimony put on the record. That much is clear from your own order setting October 1st as the hearing date.

The rest is, it seems to me, argument. And there is really nothing to argue about. We are going to be taking testimony from October 1st. If the defense chooses not to put on any evidence to establish that Veronica Jones really was unavailable, that is the risk they may choose to take. And if they choose not to put on any evidence on that point that will certainly be something that would be considered by the Supreme Court. They have retained jurisdiction and the issue will go back to them.

But one thing is clear: We are going to be presenting evidence on this issue. So regardless of whether or not the Supreme Court decides it is necessary to clarify their order, I think we should and we have agreed to take testimony on October 1st. Anything else I believe can wait for that proceeding.

And so I don't see anything else really that we should be arguing. This is,

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after all, a status listing. We have determined that we are going to have testimony on October the lst, whatever that testimony may be. I think the rest can wait until that date, Your Honor.

MR. WILLIAMS: Your Honor, if I may, good morning. First of all, I think Mr. Burns has a misunderstanding of the concept of newly discovered evidence. Miss Jones --

THE COURT: Newly discovered? They knew all about her.

MR: WILLIAMS: Exactly.

THE COURT: But she wasn't available. That is not newly discovered evidence.

MR. WILLIAMS: Exactly.

THE COURT: So why don't you follow what he has suggested: To have a hearing to prove that she was unavailable to you.

MR. WILLIAMS: Well, the question is the prosecution knew of her as Your Honor recognizes. They have, obviously, had police reports with respect to Miss Jones. And the question is why didn't they turn over the police report to the defense.

THE COURT: I am not here to determine

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that now. This is a PCRA matter.

MR. WILLIAMS: Well, to ask for a due diligence hearing and to inquire into what diligence the defense --

THE COURT: Well, put your witnesses on the stand. Whoever you have.

MR. WILLIAMS: Your Honor, what diligence requirement is there for the defense to ferret out information that should have been disclosed in the first place by the Commonwealth? The Commonwealth had an obligation to turn over --

THE COURT: Yes, but we are past that stage now. You're asking now to present this witness. You're going to have a hearing to determine why you weren't able to bring her in at the first PCRA matter.

MR. WILLIAMS: That was litigated in the Supreme Court in the papers. The question --

THE COURT: I didn't see any litigation by the Supreme Court on that issue.

MR. WILLIAMS: If you read the pleadings you would see that, Judge.

THE COURT: I don't see that. I don't

Page 45.

know what the Supreme Court said on that. All I know of what the Supreme Court has done is this Order (displaying). This decree, this Order, really, that they sent to me dated September the 4th, 1996. That's all I know. They don't take me into their confidence and tell me exactly what they are doing. Or what the schedules are. They don't send me briefs as to what the parties are filing. I know nothing as to what they are doing there. So for me to act now on what they want me to do, either it has to be more specific or you could adopt the procedure that he said (indicating).

MR. BURNS: Your Honor, I don't know what we are arguing about. If the defense chooses not to put on any evidence on this question, so be it. They have the burden. If they choose not to attempt to elicit it, that's their choice. But they are going to have the opportunity to meet their burden on October 1st. If they don't wish to put the evidence on, fine, this is their opportunity.

MR. WILLIAMS: And I will accept the invitation of Mr. Burns to this extent: What we will show is that two detectives advised --

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THE COURT: Counselor --

MR. WILLIAMS: If I may.

THE COURT: -- you heard --

MR. WILLIAMS: Now you are interrupting me and I would like to answer.

THE COURT: I am going to interrupt you one more time. On October the 1st you bring whatever witnesses you want into the Courtroom and let them testify. You could tell me anything you want. That's you. You're not going to testify. Unless you are? Are you going to take the stand?

MR. WILLIAMS: I don't think so.

THE COURT: Okay. Then I don't want to hear about what you think the situation is. Bring your witnesses in on October the 1st and I will decide the issue then.

MR. WEINGLASS: Thank you.

MS. FISK: Thank you, Your Honor.

MS. WOLKENSTEIN: Your Honor, it is a very simple question of misconduct by the police and the prosecution.

THE COURT: October the 1st you will have an opportunity to do that. Counselor, you know, you could argue. You're not going to take

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the stand either.

MS. WOLKENSTEIN: Your Honor, the very simple question --

THE COURT: You are not going to take the stand either.

MS. WOLKENSTEIN: The very simple question is whether the prosecution --

THE COURT: We are now in a PCRA matter. In a PCRA matter you have to bring in your witnesses here. I have to hear them and I will make a decision then.

MS. WOLKENSTEIN: They have the knowledge and control of the fact that detectives went into the prison and coerced this witness. It is their obligation under Brady to disclose --

THE COURT: You bring in the witnesses to prove that.

MS. WOLKENSTEIN: That was their obligation.

THE COURT: You bring in your witnesses to prove that.

MS. WOLKENSTEIN: We will bring in the witnesses for that, Judge.

THE COURT: You say a lot of this for

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the news media and the people that read that think that that's the truth. The only way we get to the truth is you bring in a witness, they take the witness stand -- it is on this side here -- and swear to tell the truth, and I will listen to them.

MR. WILLIAMS: Your Honor, I think we are in agreement, Miss Wolkenstein said that we are going to present witnesses to show that police officers intimidated this witness. That is what we will show on October 1st. I think we are now in accord.

Are you in accord?

MS. FISK: No, Your Honor, our position is whether or not men from Mars came down and intimidated a witness, the failure of Counsel to present that allegation as part of last summer's hearing is in fact part of our claim. They must show that she was not available to make these allegations last summer and in fact that she hasn't figured this out and made this up between then and now. Our invitation is that they prove first the unavailability of the witness, and once that is proved, at least to any degree, that they will

Page 49.

then, because we are here at this proceeding, and so the record can be complete, the witness is also going to testify in part perhaps to make her own allegations with regard to her unavailability last summer. But our position is that it is the witness' unavailability last summer, not in 1981, not in 1982, but in the summer of 1995 during the pendency of this Post-Conviction Relief Act hearing that needs to be --

THE COURT: She testified in 1981, didn't she?

MS. FISK: In 1982 she testified at the trial, yes, Your Honor.

THE COURT: So she testified.

MS. WOLKENSTEIN: And she testified under coercion at that time.

THE COURT: I know that, that's what I have --

MS. WOLKENSTEIN: The point is for the past 15 years the prosecution has withheld the information that they went in and they coerced this witness. And that's the issue here: Prosecutorial misconduct. And they have suppressed in their files the information about

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who those detectives were, that they went in there and they made those representations and threats to this witness, and that's what this is about. That's what our subpoena is about, is to finally get some truth, some light in what's going on in this case. And that requires them to open their files.

MS. FISK: And, Your Honor, it will ultimately be our position that a witness who has come forward after 15 years to recant testimony which was given under oath and has not come forward at a hearing one year prior to, which was covered locally, internationally, and probably every point on this earth, it will be our allegation that it is that witness' testimony which is far more suspect than any actions of police officers. Nevertheless, we welcome the defense opportunity to prove that this witness was unavailable last summer.

MR . WILLIAMS: You know, this is not about a recantation 15 years later. This is about 15 years of suppression of evidence.

THE COURT: Oh, wait a while. That's not what you filed in the Supreme Court.

MR. WILLIAMS: If you read the

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verified statement, that is precisely what Miss Jones has asserted.

THE COURT: Let the Supreme Court say I want you to open the whole case again.

MR. WILLIAMS: They want to hear from Miss Jones on that precise issue.

THE COURT: Well, they want to hear why she wasn't available when we had all of these hearings.

MR. WILLIAMS: She wasn't available because we didn't get information from the Commonwealth.

THE COURT: You knew that she testified in the first trial.

MR. WILLIAMS: That's all we knew but we didn't have the files. We didn't know that she was coerced. She has things in the Commonwealth file. We have subpoenaed them, you have quashed those subpoenas. We have made discovery motions, you have denied them. What other diligence is required by the defense?

THE COURT: You want, the defense wants to try this case in the news media.

MS. WOLKENSTEIN: No, we want to try it here.

Page 52.

THE COURT: Well, let's try it here October the 1st.

MS. FISK: Thank you, Your Honor.

THE COURT: October the lst, 1996. Bring your witnesses in.

MS. FISK: Thank you, Your Honor.

- - - - -

(At 10:50 a.m. the hearing was concluded.)

- - - - -

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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