|
Page 2.
| INDEX |
|
| COMMONWEALTH EVIDENCE |
| WITNESS |
DE |
CE |
RDE |
RCE |
| Officer Theresa Jesberger |
6 |
12 |
40 |
43 |
EXHIBITS
| COMMONWEALTH EXHIBITS |
| NO. |
DESCRIPTION |
PAGE |
| 4 |
Property Receipt |
9 |
| 5 |
NJ criminal records re V. Jones |
48 |
| DEFENSE EXHIBITS |
| NO. |
DESCRIPTION |
PAGE |
| 5 |
Subpoena (records room) |
63 |
| 6 |
Subpoena (Custodian of records) |
69 |
| 7 |
Subpoena (Commanding Officer) |
69 |
| 8 |
Subpoena (Commanding Officer) |
72 |
| 9 |
Quarter Sessions file |
78 |
Page 3.
- - - - -
(At 10:05 a.m. the hearing was convened in the
presence
of the Court and attorneys.)
- - - - -
THE COURT: Good morning.
MS. FISK: Your Honor, may I call my next witness?
THE COURT: Sure.
MS. FISK: I would first renew my request for
sequestration of all past and future witnesses and would call Police
Officer Jesberger.
MR. WEINGLASS: Your Honor, there is no need to sequester past
witnesses.
THE COURT: You are not going to call them again?
MR. WEINGLASS: We have no intention of calling them again.
THE COURT: They don't intend to call them anymore. If
they testified and they are not going to be called back, who cares.
MR. WILLIAMS: Your Honor, I would request an offer of proof as to the
next witness.
Page 4.
MS. FISK: Certainly, Your Honor. Your Honor, when
Veronica Jones testified she was questioned regarding her arrest in 1982
and the location of the guns which she was ultimately charged with and
pled nolo contendere to a weapons offense. Her testimony under oath was
that those guns were under the cushion in which she sat at the time of her
arrest. Officer Jesberger was the arresting officer back in 1982, and will
testify that indeed both of those guns were on Miss Jones directly, that
is they were both down her pants. It is therefore further evidence that
Miss Jones was not truthful in her testimony before this Court and goes
directly to impeachment of her credibility.
THE COURT: All right.
MR. WILLIAMS: Your Honor, I'm going to object to that
witness on the following ground. Your Honor's made much of the principle
of collateralness, collateralness of evidence. And I think this certainly
falls within the --
THE COURT: No, this goes to the very heart of the thing.
MR. WILLIAMS: This is a paradigm instance of --
Page 5.
THE COURT: If she is lying now I have to --- make that decision.
MR. WILLIAMS: Your Honor --
THE COURT: All right, you have an exception to my ruling.
I have ruled that he is available, we will put him on. You have an
exception to my ruling, argue it up to the Supreme Court.
MR. WILLIAMS: Well, now we are going to have a mini-trial on Miss
Jones' gun offense.
THE COURT: We are going to have whatever we are going to
have. Counselor, you had a right to bring in all the witnesses you wanted.
I am not going to tell her she doesn't have a right to do this. She has
given me a legitimate reason for calling this witness.
MR. WILLIAMS: We would ask for time to be able to respond to --
THE COURT: No more time.
MR. WILLIAMS: To be able to respond to the accusations by this Police
Officer.
THE COURT: You want to have some time, plenty of time, take it up to
the Supreme Court.
MR. WILLIAMS: What we are having is a
Page 6.
trial on Miss Jones' --
THE COURT: What we are having, if you will sit down, we
will hear the next witness. I want this case to be concluded today.
MR. WILLIAMS: Well, I would like to see it concluded as
well but I don't want to see extrinsic impeachment evidence offered on a
collateral matter.
THE COURT: That is not your problem. This is my
Courtroom, I make the rulings. If I'm wrong the Supreme Court will
overrule me. You have an exception. Now sit down, please. Call your
witness.
MS. FISK: I believe Officer Jesberger is sitting in Courtroom 305, if
she is not already out in the hallway.
- - - - -
Philadelphia Police Officer Theresa Jesberger, Badge No.
3191, Highway Patrol, having been duly sworn, was examined and testified
as follows:
- - - - -
DIRECT EXAMINATION
- - - - -
BY MS. FISK:
Page 7.
Officer Theresa Jesberger - Direct
Q. Good morning, Officer Jesberger.
A. Good morning.
Q. How long have you been a Philadelphia Police Officer?
A. Going on 17 years.
Q. And therefore were you a Philadelphia Police Officer back on June
the 11th of 1982?
A. Yes, I was.
Q. And what was your assignment and position within the Police
Department back then?
A. I worked the Philadelphia Highway Patrol in an unmarked unit in the
39th District that night.
Q. Did you on June the llth, 1982 have occasion to effect the arrest of
a Veronica Jones?
A. Yes; but it was a different name at that time.
Q. Who was it that you arrested based on your Court records?
A. The name this lady gave us was Louise Tatum.
Q. Is that a person who you currently see in the Courtroom?
A. She stepped out of the Courtroom.
Q. Did you see her here this morning?
A. Yes, I did.
Q. Did you later discover that Louise Tatum was also known as Veronica
Jones?
Page 8.
Officer Theresa Jesberger - Direct
A. Yes, I did.
Q. Where did that arrest of Miss Jones take place?
A. That took place in the 2600 block of Deacon Street.
Q. Rather than go into the entire factual situation
regarding why you went to that house and other reports, let's keep all of
that out, did you have occasion to charge Miss Jones, or to -- I'm sorry
-- did you have occasion to take action which caused Miss Jones to be
charged with weapons offenses?
A. Yes, I did.
Q. Would you please explain to His Honor the facts surrounding how that
occurred?
A. I went into a house at 2646 Deacon Street and at that
time four people that I observed in that place matched the description of
a robbery that took place at 29th and Chalmers. The complainant came
around and she identified Miss Tatum and three other individuals.
At that point I went to arrest Miss Tatum, who repeatedly
wanted to go to the ladies room and I wouldn't let her move. I told her
after, after everything was done and she was secured that we would
Page 9.
Officer Theresa Jesberger - Direct
let her go. That's when she stood up from a chair and on
her person inside a pair of tight jeans she had two revolvers on her.
Q. Precisely where?
A. She had them in her waistband on the front.
Q. How is it that you remember that?
A. Because the pants were so tight I couldn't get the
guns off of her, they were almost like painted onto her. And I had to
struggle to get the guns from her waistband.
Q. Having taken those guns from her person, what did you do with those
weapons?
A. I then placed them on a property receipt, which is property receipt
number 878406.
MS. FISK: Your Honor, may I ask that a copy of the
property receipt which the Officer has be marked. I certainly have a copy
for Counsel (handing).
It is C-4. You have been counting, I haven't.
(Pause.)
(Property receipt was marked
Commonwealth Exhibit C-4
for identification.)
THE COURT OFFICER: So marked C-4, Your Honor.
Page 10.
Officer Theresa Jesberger - Direct
BY MS. FISK:
Q. Officer Jesberger, you have already read us, told us
the property receipt number, as well as the identity of the person from
whom you took these guns, that being the person who at the time identified
herself as Louise Tatum and who later identified herself to be Veronica
Jones. In the section of this property receipt where there is space to
enter the items of property and circumstances under which it was received,
including the exact location taken from, would you read to us what is then
typed there?
MR. WILLIAMS: I am going to object to reading in a
document, that is just not proper. She could testify as to her
recollection.
MS. FISK: All right, I will be happy to restate that question.
BY MS. FISK:
Q. Is this a document that is prepared by you, Officer?
A. Yes, it is.
Q. And did you prepare this document -- when in relation
to when you seized these guns from Miss Jones did you prepare this
property receipt?
A. Approximately about an hour, an hour and a half later at West
Detectives at Broad and Champlost.
Page 11.
Officer Theresa Jesberger - Direct
Q. And consistent with the testimony that you have given,
does this property receipt reflect the specifics regarding the two guns
that were taken from Miss Jones?
A. Yes, it does.
Q. Does this property receipt also expressly note that these guns were
taken from the waistband of Miss Jones?
A. Ahh, yes, it does.
MR. WILLIAMS: Your Honor, I am going to object: She is reading from a
document.
THE COURT: It is her document, she wrote it.
MR. WILLIAMS: Well, no, she has to testify from her own
recollection.
THE COURT: She does? It is her document.
MR. WILLIAMS: Well, is it refreshing her recollection,
then she can testify from that. But she can't just read a document into
evidence.
THE COURT: Are you making the rulings for me?
MR. WILLIAMS: No, I am making an objection.
Page 12.
Officer Theresa Jesberger - Direct
THE COURT: Oh. The objection is overruled.
MS. FISK: I have no further questions, Your Honor. Oh, I'm sorry, I do
have one question.
BY MS. FISK:
Q. At the time you recovered these guns, Officer, can you tell us
whether or not they were loaded?
A. I'm sorry, I didn't hear you.
Q. Can you tell us whether or not these weapons were loaded?
A. Yes; they were fully loaded with one spent round in one of the
guns.
MS. FISK: Thank you, ma'am.
Nothing further, Your Honor.
(Discussion was held off the record at this time.)
- - - - -
CROSS-EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. Good morning, Officer Jesberger.
A. Good morning.
Q. I noticed that in this document which has been marked C-4 the
district is indicated in the upper,
Page 13.
Officer Theresa Jesberger - Cross
right-hand corner?
A. That's correct.
Q. What is the district?
A. That's the district of the 39th District at 22nd and Hunting
Park.
Q. Were you an Officer at that time in the 39th District?
A. No, sir, I was in Highway Patrol.
Q. And how come 39th District is noted, is that the place of the
arrest?
A. Yes, that's correct.
Q. Now, as I understand your testimony, and you're
testifying about an event that happened 15 years ago -- 14 years ago,
actually -- do you have a recollection of what happened independent of
this writing which is C-4?
A. Ahh, yes, I do.
Q. And so you can tell us about matters from your
recollection that don't appear on the document C-4 because you remember
the event?
A. Ahh, yes, I do.
Q. Were you alone or with other officers?
A. I had a partner at that time, Officer Toomer.
Q. Now, you told us that this began, and I know you didn't get into
other matters, when you came to a
Page 14.
Officer Theresa Jesberger - Cross
location known as 2646 Deacon?
A. That is correct.
Q. And is that a residential building or a commercial building?
A. That is a residential building.
Q. And you and your partner entered that building?
A. I chased another female into that house.
Q. You chased another female?
A. That's correct.
Q. And do you know who that female was?
A. She answered to the name of Jan Stelly.
Q. And was there an episode that occurred that gave rise to your
chasing her?
A. Ahh, yes, there was.
Q. And what was that, if you can recall?
A. While investigating a vehicle at King and Deacon, I
observed a black female that matched the description. And when I went to
stop her she took off running into a house and I chased her right through
the door into the house at 2646 Deacon.
Q. Right. Deacon Street you refer to, is that a house, it is an
apartment building, or is that --
A. No, it is a house.
Q. It is a private house?
Page 15.
Officer Theresa Jesberger - Cross
A. That is correct.
Q. So you chased her right into the house?
A. That is correct.
Q. And what was your belief that she had done that gave rise to your
chasing her?
A. We were investigating a robbery from 29th and Chalmers which is
called Liz's Den at that location.
Q. And did you have reason to believe that she was connected to that
robbery?
A. Yes, she matched the description given to us.
Q. Which is a black female?
A. Correct.
Q. That was the description that you had?
A. No, she had a red and white top on, striped top on.
Q. I see. And so you chase her into the residence, which is a
single-family home?
A. That is correct.
Q. And when you entered where did you go?
A. I went right into the living room.
Q. And there were other people in the living room; correct?
A. That is correct.
Q. Four, four people?
A. There were five people in the living room.
Page 16.
Officer Theresa Jesberger - Cross
Q. Including the woman you chased?
A. It was the four people that matched the description and an elderly
lady, who I don't recall her name or anything.
Q. I see. And when you entered the living room, did you see Veronica
Jones at that point?
A. Ahh, yes, I did.
Q. And she was sitting down, was she not?
A. She was sitting on a chair facing me.
Q. Right. And was that an upholstered chair?
A. By upholstered meaning just a cover?
Q. Yes, it had cloth on it, it wasn't just a hardwood chair?
A. Ahh, that is correct.
Q. All right. And there was a cushion on that chair, was there not?
A. I really don't recall.
Q. Okay. So she is sitting on a chair that is upholstered, you don't
remember whether there was a cushion or not?
A. It was a living room chair.
Q. Okay. And this older woman that was there was sitting next to her,
was she not?
A. No, she was not. This was a single chair.
Q. It was a single chair, hmm-hmm. Do you
Page 17.
Officer Theresa Jesberger - Cross
remember if there were couches in that room?
A. To the left of me there was a couch.
Q. And were there people sitting on the couch?
A. The elderly lady and one of the other gentlemen by the name of
Bernard Johnson was sitting on the couch.
Q. Right. Now, you wrote a report about this episode
other than what's been marked C-4, which is a property receipt; is that
correct?
A. Did I? I just did the property receipt on this.
Q. Did your partner write a report?
A. I don't really know if he wrote a report, the detectives would have
wrote a report.
Q. I see. The detectives that came on the scene later?
A. That is correct.
Q. In other words, you never wrote anything about where
Veronica was sitting, the type of chair she was sitting on?
A. No.
Q. You did not?
A. No.
Q. And so you can't rely on refreshing your recollection from anything
that was done that was
Page 18.
Officer Theresa Jesberger - Cross
written, you're just testifying about that from your recollection 14
years ago?
A. Yeah, she was sitting to the, she was sitting down to the right of
me as I entered the living room, facing me.
Q. I see. And you recall that it was an upholstered chair?
A. It was a cloth-type chair.
Q. Right. And did she stand up when you entered the room?
A. She wanted to go to the ladies room at that time and told me she was
pregnant.
Q. Right. But did she stand up?
A. She tried to stand up and I had them sit back down.
Q. She tried to stand up?
A. That is correct.
Q. And you told her to sit down and she reseated herself?
A. Yes, she did.
Q. Now, do you recall what she was wearing besides jeans?
A. She had a pair of tight like black, charcoal-type jeans on and a
light-colored top.
Q. Now, incidentally, according to C-4 there was
Page 19.
Officer Theresa Jesberger - Cross
a disposition of guilty on the gun charge, is that correct, did you see
that on the back?
A. Yes, that is correct.
Q. Does that require a mandatory sentence to your knowledge back
then?
A. Ahh, I do not know. I don't believe so, though.
Q. Did you find out that she was given probation on this charge?
A. Ahh, no, I did not.
Q. Hmm-hmm. Would it surprise you to find out that she was given a
probation?
MS. FISK: Objection, Your Honor.
THE COURT: What is the difference whether she was surprised or not? She
got probation.
MR. WEINGLASS: Okay.
THE COURT: She went before one of our lenient judges, he gave her
probation. What do you want?
MR. WEINGLASS: She might have had a lenient District Attorney also.
THE COURT: Well, she might have at that.
MR. WEINGLASS: As a result of her
Page 20.
Officer Theresa Jesberger - Cross
having testified against Mr. Jamal.
MS. FISK: Your Honor, I would suggest that Mr. Weinglass
read the sentencing code which notes that a conviction for a robbery or an
agg assault or a particular crime in which an operable weapon is used
requires the imposition of a mandatory sentence, but that a conviction for
a weapons offense alone does not require a mandatory sentence under the
sentencing code in effect currently, a sentencing code which was not in
effect in 1981 when this crime occurred.
(Discussion was held off the record at this time.)
BY MR. WEINGLASS:
Q. Are you aware of the fact that Miss Jones was served
with a letter from the District Attorney's Office indicating to her that
she faced mandatory sentencing on this particular charge and that letter
exists in a document that was entered into evidence here two days ago?
MS. FISK: I object to that question, Your Honor. And that
is certainly a letter that was filed no doubt under the Quarter Sessions
file at the time she was still facing charges of robbery.
Page 21.
Officer Theresa Jesberger - Cross
MR. WEINGLASS: All right.
BY MR. WEINGLASS:
Q. And that when Miss Jones testified in this case in
July of -- June 29th, 1982, she had been served with a mandatory
sentencing letter by the District Attorney's Office indicating this she
must go to prison if she's convicted of this charge?
MS. FISK: Of which charge, Your Honor? I object. That's
the nature of my objection. I also object because it is an improper
question to this witness.
THE COURT: It is. The gun charge or what --
MR. WEINGLASS: Let's clarify it. We have the document, it is in
evidence.
THE COURT: But I don't think this witness is in a position to answer
that question for you.
MR. WEINGLASS: All right.
THE COURT: She is only the arresting officer: She doesn't
make those sorts of decisions. They are made by the District Attorney's
Office.
BY MR. WEINGLASS:
Q. This is the first time you have testified
Page 22.
Officer Theresa Jesberger - Cross
about this 1982 arrest, isn't it?
A. No.
Q. Did you testify at the prelim on June llth?
A. No, I testified --
Q. June 10th, I'm sorry.
A. No, I testified in '88.
Q. At the disposition hearing?
A. Yes.
Q. I see.
A. And brought the guns down at that time.
Q. Pardon me?
A. And brought the guns down at that time for confiscation.
Q. I see, okay. And were you questioned at the disposition hearing,
much as you are this morning?
A. No.
Q. And you just gave direct testimony and there was no
questioning? Or could you explain to me what the nature of your appearance
was in 1988?
A. In reference to the guns that were confiscated from Miss Tatum.
Q. Yes. And you just identified the guns?
A. I brought the guns down from the Evidence Room to the
courtroom and just testified about the guns and they were confiscated at
that time.
Page 23.
Officer Theresa Jesberger - Cross
Q. Did you testify about where the guns were found?
A. Ahh, yes.
Q. Okay. And there was a record made, I assume somebody was taking down
your testimony?
A. I presume so.
Q. Hmm. Now, it is a fact, is it not, Officer, that it is
easier to prove a claim of possession of a weapon if the arresting officer
testifies that they were found on the person of the individual as opposed
to being under a cushion of a chair on which that individual was
sitting?
MS. FISK: Objection, Your Honor.
THE COURT: Sustained.
BY MR. WEINGLASS:
Q. Could you have been able to make out the charge of
possession of weapons if the guns were under a cushion on the chair on
which an individual is sitting?
MS. FISK: Objection, Your Honor.
THE COURT: Sustained.
BY MR. WEINGLASS:
Q. When you appeared and testified in 1988, were the other defendants
in court or was it just Miss Jones?
Page 24.
Officer Theresa Jesberger - Cross
A. I believe it was just Miss Jones.
Q. The other cases were disposed of as well, to your knowledge, if you
have that knowledge?
A. No, I do not have.
Q. You didn't testify in any of the other trials?
A. No.
Q. When you make an arrest such as this, are you the
officer who runs any kind of a computer check to see if there are
outstanding warrants on the individual you have arrested or is that done
by someone else?
A. I do not do that, no.
Q. So you had no knowledge of Miss Jones' background?
A. No, I did not.
Q. You had no knowledge, I assume, of the fact that on
the day that you had arrested her she was listed as a defense witness in
the case of Commonwealth versus Jamal?
A. No, I did not.
Q. You didn't know that?
A. No, sir.
Q. Did you learn that shortly after this?
A. Not until this year.
Q. When you made the arrest, you filed this
Page 25.
Officer Theresa Jesberger - Cross
paperwork which is C-4 immediately? You said within an hour?
A. It's approximately within a hour, an hour and a half that I typed
this up.
Q. All right. And this goes from your possession to whom?
A. I then take the property receipt along with the guns
and we take them to 8th and Race, down to our Firearms Unit.
Q. On 8th and Race?
A. That is correct, the same night.
Q. Right. Is the Homicide unit also located at 8th and Race, if you
know?
A. Ahh, yes, it is.
Q. So that people in Homicide would have access to this document about
Veronica Jones being arrested on a gun charge?
A. Not that they would know of, sir.
Q. Pardon?
A. Not that they would have known of.
Q. But. if they went to the room they would have access to this
document, they had access?
A. What room are you talking about, sir?
Q. Wherever this document -- tell us where you put this document at 8th
and Race?
Page 26.
Officer Theresa Jesberger - Cross
A. This document goes to a Firearms Unit and they then
test the revolvers and they take part of the property receipt, I take my
copy, and they then assign that with the guns and have them test
fired.
Q. Now, does this document ultimately, which is C-4, go into the hands
of somebody in the District Attorney's Office?
A. There is also a copy for the District Attorney. After
they are done their investigation, it gets sent there by the
detective.
Q. To the District Attorney's Office?
A. That is correct.
Q. So then at some point in time the District Attorney's
Office is advised that Veronica Jones has been taken into custody on a gun
charge?
A. They would have known her as Louise Tatum, not Veronica Jones at
that time.
Q. Right, but if they entered Louise Tatum into any kind
of a search computer, they would have also got the a/k/a Veronica Jones;
is that correct?
A. I'm not sure of that, sir.
Q. And how long after you turned this in would the District Attorney's
Office have a copy of this?
A. Within a matter of a couple days.
Q. I see. So by, by your calculations, June 13th
Page 27.
Officer Theresa Jesberger - Cross
or June 14th the District Attorney's Office would know
that Veronica Jones was arrested, or Louise Tatum, I'm sorry, was arrested
and charged, right?
A. I would imagine so, sir.
Q. Right. And did you have anything to do with the bail being set on
this case?
A. No.
Q. All right. Do you know if bail was set?
A. I do not know, sir.
Q. She was taken into custody, was she not?
A. That is correct.
Q. She was handcuffed?
A. That is correct.
Q. And she was taken down to where?
A. She was taken to Broad and Champlost, at that time it was called
Northwest Detectives.
Q. Right. And you don't know how long she remained there?
A. No, I do not.
Q. All right. And you don't know if anyone from the District Attorney's
Office had visited her there?
A. I do not know, sir.
Q. I assume anyone from the D.A.'s Office could visit someone in
custody in the location that you describe?
Page 28.
Officer Theresa Jesberger - Cross
MS. FISK: Objection, Your Honor.
THE COURT: I will have to sustain it. If you want to find
out bring in some competent witnesses. How does she know what the D.A.
could do?
MR. WEINGLASS: Right.
BY MR. WEINGLASS:
Q. Well, do you know --
MR. WEINGLASS: Well, I will ask her and I will accept her answer.
BY MR. WEINGLASS:
Q. Do you know if the D.A.'s personnel have access to
people who are in custody in the location where you put Veronica
Jones?
A. I have never seen them up there when I was there, sir.
Q. Do you know if they have access, that is my question?
THE COURT: She said she never saw them, so what are you talking
about?
MR. WEINGLASS: My question is can they go in if they want to.
THE COURT: How could she answer that?
MR. WEINGLASS: I am asking her if she knows.
Page 29.
Officer Theresa Jesberger - Cross
THE COURT: She told you she doesn't know, she never saw a D.A. up
there.
MR. WEINGLASS: All right.
BY MR. WEINGLASS:
Q. When were you contacted to testify here today?
A. Approximately about three weeks ago.
Q. Three weeks ago?
A. Yes.
Q. Right. Before Veronica Jones testified two days ago?
A. I was given a Court notice. I have been on vacation
and I haven't been available. And at that time they sent me a Court notice
and I came in here yesterday and today.
Q. Okay. And when you were notified three weeks ago, were you told what
you would be testifying about?
A. Ahh, no, sir. Just about Veronica Jones at that time, did I know
her.
Q. Right. And then you retrieved this document, which is C-4?
A. Yes, we have a copy of it.
Q. Right. So you knew you would be coming here three weeks ago to
testify against Veronica Jones?
MS. FISK: Objection, Your Honor.
Page 30.
Officer Theresa Jesberger - Cross
That misstates her testimony.
BY MR. WEINGLASS:
Q. Right. You were told to be available to testify three weeks ago?
A. There was no date at that time.
Q. Right, but it was three weeks ago from today that you were told to
be available as a witness?
A. Approximately three weeks ago, sir.
Q. Yes. And did you review your testimony with anyone in the D.A.'s
Office before you testified here today?
A. I talked to the D.A.
Q. When did you talk to the D.A. first?
A. Ahh, yesterday.
Q. Right. And that was the first time you talked with the D.A.?
A. Yes; I have been away on vacation.
Q. Is yesterday the first day you were back?
A. I'm still really on vacation.
Q. But have you talked to any representatives of the D.A.'s Office,
detectives or otherwise, prior to yesterday?
A. No.
(Discussion was held off the record at this time.)
Page 31.
Officer Theresa Jesberger - Cross
BY MR. WEINGLASS:
Q. I am not sure I understood one point correctly. You have been on
vacation for a period of time?
A. That is correct.
Q. And how are you able to get from being on vacation to come to Court
yesterday?
A. Ahh, I had an approved vacation for two weeks when I
was notified about this Court hearing at that time. I came in
yesterday.
Q. Did someone contact you while you were on vacation and ask you to
come in?
A. Yes.
Q. Right. And that's easily done, I mean through the process of the
District Attorney's Office and the Police Department?
MS. FISK: Objection, Your Honor, as to whether or not it is easily
done.
MR. WEINGLASS: Right.
BY MR. WEINGLASS:
Q. In other words, what I am asking is when you go on
vacation, and you might be a witness in the case, you, I assume, leave
with your superiors or someone in the D.A.'s Office or the Police
Department how you can be located if you're needed?
Page 32.
Officer Theresa Jesberger - Cross
A. Sometimes yes, sometimes no, it all depends. They know how to get a
hold of me.
Q. Right. Were you -- I don't want to get into anything
of a private nature -- were you outside the City of Philadelphia on
vacation and came back or were you in the City of Philadelphia?
A. I was outside the City of Philadelphia and then I came back.
Q. When you were notified that you would be needed as a witness?
A. I came back just a day before that. I had some work I was going to
do in my house.
Q. And so when you were notified you were notified at your house to
come here to Court?
A. My headquarters notified me.
Q. At your house?
A. That there was -- yes, that there was a Court notice for
yesterday.
Q. I see. And that's what brought you in?
A. That is correct.
Q. They notified you -- again I don't want to get into any private
matters -- by telephone?
A. They either notified me by telephone or --
Q. No, this time.
A. This time it was by telephone.
Page 33.
Officer Theresa Jesberger - Cross
Q. By telephone. At your home?
A. That is how they notified me, yes.
Q. And if you hadn't come back to do something at your home, how would
they have been able to find you?
MS. FISK: Objection, Your Honor.
THE COURT: Sustained.
BY MR. WEINGLASS:
Q. Had you left with them when you went on vacation where you would be
in case they would have to notify you?
MS. FISK: Objection, Your Honor.
THE COURT: Sustained.
(Discussion was held off the record at this time.)
BY MR. WEINGLASS:
Q. I just want to be clear on one thing. It's your
testimony that when you saw Veronica Jones she was seated on an
upholstered chair and you don't remember if there was a cushion on it?
MS. FISK: Objection, Your Honor: Asked and answered.
THE COURT: Sustained.
BY MR. WEINGLASS:
Q. Is that fair to say?
MS. FISK: Objection, Your Honor.
Page 34.
Officer Theresa Jesberger - Cross
THE COURT: Sustained. She answered that question before.
MR. WEINGLASS: On cross-examination you are entitled to repeat.
THE COURT: But she answered it for you before under
cross-examination.
MR. WEINGLASS: Right.
THE COURT: How many times are you going to ask her the same
question.
BY MR. WEINGLASS:
Q. Incidentally, did your fellow officer observe and witness your
alleged removal of these guns?
A. Yes, my partner put Miss Jones' arms behind her
because I was struggling to try to take these guns out, out of the
waistband. They were like caught on the waistband. He brought her arms
back because she was, she was leaning over.
Q. You didn't have your gun drawn?
A. Yes, I did.
Q. You did. So with a gun in one hand you were struggling with the
other hand?
A. At that time I had more backup and the complainant had
ID'd them at that time. I had put my gun away and went to handcuff Miss
Jones.
Q. Now I am a little confused, you will have to
Page 35.
Officer Theresa Jesberger - Cross
help me out. You walk into the room, you have your gun drawn
already?
A. That is correct.
Q. You see Miss Jones sitting there?
A. That is correct.
Q. There are five people in that room?
A. Correct.
Q. You walk over to Miss Jones?
A. No, I do not.
Q. What do you do?
A. At that point I was waiting for more backup to come into the home
behind me.
Q. So you hold your gun on these five people?
A. I had my gun out, sir.
Q. Yeah. And how long did you wait?
A. It was a matter of seconds.
Q. That backup got there?
A. Yes.
Q. And then what did you do when backup arrived?
A. At that time the complainant, the complainant had come
in and ID'd, it was three out of the four people in the house. I then put
my gun away and went to handcuff Miss Jones. And when she stood up, that's
when I observed she had guns on her.
Q. You didn't observe that before?
Page 36.
Officer Theresa Jesberger - Cross
A. She was sitting down in a hunched-over manner.
Q. In other words, when you walked in you saw her seated, you didn't
see any guns?
A. She was hunched over saying she had to go to the bathroom.
Q. I see. And when you walked over she stood up?
A. After she was placed under arrest, yes. I had her stand up to be
handcuffed.
Q. I see. And did you have your gun out at that time?
A. No, I had put my gun away.
Q. I see. And all the backup was there when you found these guns;
right?
A. There were people in behind me, I was right by the front door.
Q. Do you know who else was there?
A. It was my partner and numerous other 39th District officers had
arrived.
Q. And you don't know any of their names?
A. No.
Q. How many were there?
A. It was about, about five. Somewhere in that vicinity, five, six.
Q. Hmm-hmm. Did anyone have a camera to photograph this particular
arrest?
Page 37.
Officer Theresa Jesberger - Cross
A. No, not that I know of.
Q. Okay. And to your knowledge, did you request fingerprint examination
of the guns?
A. No, I did not. I don't do that.
Q. It's left up to who?
A. Once they are confiscated and placed on a property
receipt, they go downtown directly after I'm done my paper work.
Q. And who in the ordinary course would seek fingerprints if
fingerprints would be sought, if you know?
A. It would be the detective.
Q. From the District Attorney's Office?
A. No. Detective would be like Northwest Detectives would orders
fingerprints.
Q. Oh, okay. By the way, if you remember, these were black jeans?
A. They were like a, a grayish color to black, like a stretch jean.
Q. Okay. And you noted on the report that these guns were used in a
holdup of a bar?
A. That is correct.
Q. How did you know that one hour after?
A. We had met with the complainant at the bar at 29 and Chalmers. And
in her ceiling was a bullet
Page 38.
Officer Theresa Jesberger - Cross
from the guns from the robbery.
Q. The gun, at least one bullet was discharged?
A. That is correct.
Q. Right. And did the complainant identify the guns?
A. Yes, she did.
Q. These are the guns, she could identify the guns that were used in
the robbery?
A. That is correct.
Q. Did Miss Jones say anything to you at the time of the arrest?
A. At the time I arrested her?
Q. Yeah.
A. That she had to go to the bathroom. She was still
young but she had to go to the bathroom and she was pregnant.
Q. Other than that did she say anything?
A. No.
Q. Well, when you found the gun did you say anything?
A. I told her not to move.
Q. That's it?
A. We11, I was struggling to try to get the guns from her
waistband, and while I was pulling them I was trying to make sure they
didn't discharge.
Page 39.
Officer Theresa Jesberger - Cross
Q. Right. Were you being assisted by anyone?
A. I took the guns from her waistband and my partner put her hands
behind her back to handcuff her.
Q. That was happening at the same time?
A. That is correct, because she kept leaning forward.
Q. Were all the people removed from the premises and put under
arrest?
A. Three of them were removed from the premises.
Q. And put under arrest?
A. That is correct.
Q. Was there a search then made of that room for weapons or anything
else?
A. I did not make it, sir.
Q. Do you know if others did?
A. I do not know.
Q. There were cushions in that room, were there not?
A. Cushions like a removable cushion?
Q. Yeah, like on a sofa?
A. The sofa was cloth, I don't know if they were removable or not.
Q. Well, there was something that appeared to look like to the eye a
cushion on the sofa, was there
Page 40.
Officer Theresa Jesberger - Cross
not?
MS. FISK: Objection, Your Honor: The witness just answered that
question.
THE COURT: Yes.
BY MR. WEINGLASS:
Q. You don't know if they were removable but there were cushions?
MS. FISK: Objection, Your Honor: It has been asked and answered.
THE COURT: Yes, come on, let's get beyond the cushions.
MR. WEINGLASS: Okay? I have nothing further.
MS. FISK: Oh, but I do, Judge.
- - - - -
REDIRECT EXAMINATION
- - - - -
BY MS. FISK:
Q. Officer Jesberger, you have been questioned in great
detail in cross-examination regarding your recollection of this event. In
light of that, would you please tell us from the beginning what it was
that led up to this seizure and why it is that you recall it so
clearly?
A. We responded to a radio call that took us to
Page 41.
Officer Theresa Jesberger
29th and Chalmers, it was a bar called Liz's Den. There
was numerous patrons inside the bar. And at that point the barmaid, which
was one of the complainants, came out along with her boyfriend and said
that the people shot up into her ceiling. A man came into the bar and said
that he had followed their car, it was a '73 Chevy, blue and white, over
to King and Deacon and that he would take us to that location.
At that time myself and my partner, we were in an
unmarked car, we went to that location. We notified the Radio that we were
going to that location and numerous other officers came there. As we were
investigating the vehicle that was sitting on the corner, I looked up and
I observed a black female with a, it was like a red and white Y-band shirt
who matched the description that was given to us.
When I called for her to stop she took off running and I
took off running after her. At that point she ran right into a house at
2646 Deacon Street, and when she hit open the door the door swung back
inside where there were other people that matched the description also. A
few seconds later my partner realized that I had ran down the street and
they came looking for me.
Page 42.
Officer Theresa Jesberger
Q. Why is it after, from 1982 to today, how is it that you recall this
particular case?
A. It was a robbery, point of gun, and there was numerous
people to it. But the struggle of pulling the guns from her person when
she stood up, she kept saying she was pregnant, Miss Tatum, and bent over
like she had to go to the bathroom. And she kept yelling she had to go to
the bathroom, she didn't want to stay there at that location. She was
sitting to like the far right of me. Where a couch was to the far left of
me where the rest of the people were. She wasn't near anyone else. And
when she stood up, that's when I observed she had the guns on her.
Q. Now, are you aware whether or not the Police
Department or the Office of the District Attorney were ever able to
prosecute or -- I'm sorry -- ever able to obtain the presence of any of
the witnesses or victims of this event at trial so either Miss Tatum or
any of the other persons who were arrested could be tried for the
robbery?
A. I'm sorry, could you repeat the beginning of that.
Q. Sure. It was a long question, I will try to make it
easier. Do you know whether any of the eyewitnesses to this event or
victims to this event,
Page 43.
Officer Theresa Jesberger - Recross
that is the robbery in the bar, were able to be brought
into Court for trial against any of the persons that you arrested inside
that house?
A. No, they were not.
MS. FISK: Thank you, ma'am.
MR. WEINGLASS: Just one follow-up on that.
- - - - -
RECROSS-EXAMINATION
- - - - -
BY MR. WEINGLASS:
Q. This was, as you described, a robbery, point of a gun, and the gun
was discharged; is that correct?
A. It was a robbery, point of two guns.
Q. And the gun was discharged?
A. Discharged into the ceiling.
Q. Do you have any knowledge of why someone who was found guilty would
be given probation on that kind of a charge?
A. No, sir, I do not.
MR. WEINGLASS: Thank you. I have nothing further.
MS. FISK: Your Honor, I have nothing further of this Officer.
Page 44.
THE COURT: Thank you very much. You are excused.
(Witness excused.)
THE WITNESS: Thank you, Your Honor.
MS. FISK: Your Honor, at this time, pursuant to Title 42,
which permits sealed documents to be accepted by a Court as
self-authenticating, I offer to the Court the following Commonwealth
Exhibit 5, which is a self-authenticating document from the State of New
Jersey indicating that Veronica Jones was indicted with the charge that
she did unlawfully and purposely obtain by deception from the Camden
County Board of Services, welfare, Medicaid or food stamps having a value
in excess of $500, along with the judgment of conviction from the State of
New Jersey in the case of State of New Jersey versus Veronica Jones,
showing that Miss Jones was indicted for the charge of theft by deception
on October 14th, 1988, and being found guilty of those charges was placed
on probation, ordered to perform community service, to pay restitution in
the amount of $2,424, and ordered to pay a $30 VCP -- which I presume is
some sort of
Page 45.
penalty -- along with the statement of reasons for
sentencing, signed by David G. Eynon. E-Y-N-O-N. As well as a copy of the
State of New Jersey versus Veronica Jones Criminal Division plea agreement
with regard to that same offense.
And as self-authenticating documents I offer them to the
Court and an opportunity to Counsel to review them as Exhibit 5
(handing).
(Pause.)
MR. WILLIAMS: Your Honor, I am not going to quibble over
whether it is self-authenticating or not, but the fact that the document
is an authentic document doesn't make it admissible. On what basis does
the Commonwealth seek to admit these documents?
MS. FISK: Your Honor, evidence of conviction for theft by
deception is an admissible crimen falsi which again the Court can use in
determining the credibility of the witness who has testified.
MR. WILLIAMS: The proposition is correct, and Miss Jones
testified when she was on the stand that she did indeed receive a
conviction for this precise offense. So this is
Page 46.
cumulative.
MS. FISK: Furthermore, Your Honor, the existence of these
records, which apparently were never sought or discovered by defense in
their efforts to locate Miss Jones, can be utilized by the Commonwealth as
argument that a logical, diligent effort to locate an individual whom they
knew or should have known had relations in Camden, New Jersey would
further permit the use of the existence of these records beyond the facts
that they state to be relied upon.
MR. BURNS: And the cumulative argument goes to weight, not
admissibility.
MR. WILLIAMS: Your Honor, on the issue of diligence,
we've been informed that this document has come to Court in a sealed
envelope, number one.
MS. FISK: No, no, no, that they bear the seal: You can
feel it, it's raised. That is the reference to the seal, Your Honor. I
never said envelope. It is a sealed document, that is if you feel it
--
MR. BURNS: Under seal.
MS. FISK: Document under seal, thank
Page 47.
you.
MR. WILLIAMS: Fine. But the fact that this document is
here in Court doesn't tell us whether this document is accessible by
private citizens.
THE COURT: Well, go over to New Jersey and ask them.
MR. WILLIAMS: Well, if they want to introduce it --
THE COURT: No.
MR. WILLIAMS: -- to establish that we could have had
access to it they bear the burden of proving that. They just can't simply
ask that this document be admitted into evidence --
THE COURT: Go over to New Jersey.
MR. WILLIAMS: -- and then assume that the defense could have gotten it.
We need a witness to testify to that.
THE COURT: You could have gotten it by an order of some judge over
there.
MR. BURNS: Your Honor, Mr. Williams is incorrect. This is
being offered as a crimen falsi conviction that goes to the credibility of
the witness.
MR. WILLIAMS: Miss Jones has already
Page 48.
testified that she was convicted. This document doesn't add
anything.
THE COURT: Well, if it doesn't add anything what are you
arguing about? I will admit it into evidence. Let's go.
MS. FISK: Thank you.
MR. WILLIAMS: All right, for the limited purpose that Mr. Burns had so
eloquently stated.
(New Jersey criminal records for Veronica Jones
were
marked Commonwealth Exhibit C-5 for identification.)
THE COURT OFFICER: So marked C-5, Your Honor.
MS. FISK: Your Honor, I next seek to introduce a document
by stipulation. I believe the defense is still in possession of it, unless
it has been returned to the Court Crier. And those are prison records
which were subpoenaed by the defense, as I understand it.
MS. WOLKENSTEIN: They were already moved yesterday into evidence.
MS. FISK: The prison records were never moved into evidence.
MS. WOLKENSTEIN: The prison
Page 49.
records -- I'm sorry. What was subpoenaed, Your Honor,
what was subpoenaed yesterday, what was subpoenaed for this proceeding
were the logs, the official log, visitors logs of official visitors,
police and prosecution visitors at the House of Detention during the
period of time when Veronica Jones was held there. That was what the
subpoena was for. What came in that pile were things having to do with Mr.
Jamal, his visitation, all that. That was not what the subpoena was for.
Nothing that was requested in that subpoena came with that.
I have the subpoena here. It says quite specifically in
this subpoena that what was subpoenaed was all logs and visitor records
for the period June 1 through July 3, 1982, which would show visits or
interviews by police officers or prosecution agents with inmates of the
Detention Center. That is not the content of that, of that envelope. And
therefore I am not moving that into evidence.
MS. FISK: No, may I please see the documents that came in
response to the subpoena? I understood that they were delivered to the
defense.
Page 50.
MS. WOLKENSTEIN: (Handing.)
MS. FISK: Thank you.
MS. WOLKENSTEIN: Those are visiting records of Mr. Jamal. That is not
what is requested per the subpoena.
MS. FISK: Fine.
THE COURT: Let her look through it, will you. Don't get excited. Save
your blood pressure.
MS. FISK: And I apologize to the Court and to Counsel. I
misunderstood. It was my understanding that the records regarding Miss
Jones were subpoenaed. I have provided to Counsel the photocopy of those
records, and I would move that photocopy into evidence.
MS. WOLKENSTEIN: I have never seen them. Could you --
MS. FISK: Certainly (handing). As I advised Counsel, Your
Honor, upon subpoenaing the prison for all visitors records regarding Miss
Jones, I was advised that prison records from 1982 are no longer
available. That the records which were provided in response to subpoena
were from her incarceration in 1988 only.
Page 51.
MS. WOLKENSTEIN: Okay, well, I am a little confused.
MS. FISK: Yes.
MS. WOLKENSTEIN: I issued a subpoena that I was told by
Miss Fisk when I inquired from the Court and various other places what
happened to them that, first from Miss Fisk, that she had had them and
told the officer who delivered some documents to turn them over to the
defense.
MS. FISK: Yes.
MS. WOLKENSTEIN: Then I learned that an envelope which
purportedly contained that was given to other defense Counsel and I
secured that envelope.
MS. FISK: Yes, that's right.
MS. WOLKENSTEIN: That is the envelope that I have now just showed to
Miss Fisk.
MS. FISK: Yes.
MS. WOLKENSTEIN: It does not contain these documents.
MS. FISK: That is correct, the documents that I have were
photocopied by me about a month and a half ago in response to my subpoena
about a month and a half ago to the
Page 52.
prison for Miss Jones' prison records and were then
returned to the prison. It was my misunderstanding -- and I apologize to
Counsel -- I assumed that the records which were brought into Court two
days ago were again the original records that I had photocopied in
response to my subpoena a month and a half ago, and it is my mistake and I
apologize to Counsel for my misunderstanding. I do not know why Counsel
did not receive --
THE COURT: Just a minute. These are records from what day to what
day?
MS. WOLKENSTEIN: From the House of Detention, I assume.
THE COURT: Wait a while, please. I could only listen to one.
MS. FISK: I issued a subpoena --
THE COURT: Yes.
MS. FISK: -- to the prison for all prison records and
logs regarding Veronica Jones with Veronica Jones' photo number.
THE COURT: All right.
MS. FISK: Regarding her 1982 incarceration.
THE COURT: Okay.
Page 53.
MS. FISK: I was advised in response there are no records
from 1982 available and the records that were provided were, all that they
have were the 1988 records.
THE COURT: Oh. So these are 1988?
MS. FISK: Yes, Your Honor.
THE COURT: Well, what would they show me?
MS. FISK: Again, Your Honor, these are with regard to the
efforts Counsel made or could have made ,with regard to --
THE COURT: Oh.
MS. FISK: -- with regard to locating Miss Jones. These
are records that show that when Miss Jones was incarcerated on her bench
warrant in 1988, the address which she gave is in Camden, New Jersey.
There is an address of her mother contained in those records.
THE COURT: Okay.
MS. FISK: And it is for that reason that I seek to mark those documents
and move them into evidence.
THE COURT: Okay.
MS. FISK: And that will be Commonwealth Exhibit 6.
Page 54.
(Pause.)
(Discussion was held off the record at this time.)
MS. WOLKENSTEIN: What I find very interesting here is I
subpoenaed records from the House of Detention for Veronica Jones and what
I got in response are records about Mr. Jamal. The District Attorney gets
records, gets records about Veronica Jones without any problem. I don't
get them.
Now I want to make further, I was told, my investigator
was told when he served the subpoena at the House of Detention, and it
was, that subpoena was signed by Sergeant James, who informed Mr. Milton
that he was in charge of the records at the Curran Fromhold Facility, the
clerk of the records room there which oversaw any records there would be
concerning logbooks of visitors there, that it would be possible for me to
take a look at those records prior to the subpoena being honored and being
brought down to Court. When I went on Friday preceding this hearing date
to take a look at those records pursuant to that cooperative attitude from
Sergeant James, I was informed by another
Page 55.
sergeant there, I think a Mr. Donohue -- but I have to
check my records, something like that -- that in fact Sergeant James was
the new officer in charge of the records room and he didn't really know
the rules. The rules were really contrary to what Sergeant James said, who
is the clerk of the records room, that in fact it was not permissible for
me to see these records, despite the fact that a copy was going to be
brought to Court, a copy was going to be turned over to defense. I mean I
was not going to be able to see it.
Then upon receiving this envelope there is nothing in it
that is responsive to my subpoena. Yet apparently when the District
Attorney requests documents they are in there.
THE COURT: Where are the subpoenas?
MS. WOLKENSTEIN: I will be glad to read it again. All
logs and visitor records for the period June 1 through July 3, 1982 which
would show visits or interviews by police officers or prosecution agents
with inmates of the Detention Center. We were looking precisely --
THE COURT: Yes, but I don't see any
Page 56.
name on that so far. I see you reading, you want something. What does
it say?
MS. WOLKENSTEIN: We want the entire logbook.
THE COURT: Did you give them the name?
MS. WOLKENSTEIN: What name?
THE COURT: The witness Jones.
MS. WOLKENSTEIN: We wanted the entire logs. The logs for
all visitors, official Visitors to the Detention Center. That's what we
wanted. We wanted to be able to examine that to be able to determine
--
THE COURT: You should have subpoenaed them to come down today with
those logs, if they have them.
MS. WOLKENSTEIN: We did subpoena them to come down today.
The subpoena was for October 1st and for the duration of the hearing.
THE COURT: Yes.
MS. WOLKENSTEIN: And what I got was an envelope which contained nothing
of the kind. No logs.
MS. FISK: Apparently, Your Honor, Counsel did not limit her subpoena to
a
Page 57.
particular inmate but instead asked for all visitors
records. And since it was under the caption presumably of Commonwealth
versus Jamal, those were the visitors logs that were provided.
I would simply note, and Counsel is welcome to look at
the subpoena which I issued, which was dated June 14th, which asked for
any and all records, including visitors logs relating to the incarceration
of Veronica Jones, also known as Rhonda Harris, Police photo number
560335, from July 1981 to present, which produced the records which I
photocopied and which Counsel now has. Either that subpoena was clearer to
the prison or I guess we can add the prison to the list of every police
officer and every prosecutor in the City of Philadelphia who has
apparently, according to the defense theory, joined this conspiracy to sit
around and think of ways everyday to further try to frame a man who is
innocent. I mean it is one or the other, Judge.
MS. WOLKENSTEIN: My point is when the clerk of the record
room from Curran Fromhold Facility learned that this was about Mumia
Abu-Jamal we did not get the agreement and
Page 58.
cooperation that was originally promised. We want the
logbooks there, just like the logbooks from the Roundhouse were brought
in, to be able to look through the entirety of the logs so we could make a
determination over what officers and what detectives and what --
THE COURT: You should have told them to bring them here.
MS. WOLKENSTEIN: We want to know what representatives went to visit
what inmate under what name.
MS. FISK: Apparently, Your Honor, according to the
defense, the prosecutors, the police, the prison officials, and anybody
else who is testifying on behalf of the Commonwealth in this case, spends
their hours sitting around and trying to think up ways to frame somebody
who they don't want to be found guilty who has been found guilty of a
crime. In fact, a subpoena was issued, the records were returned. Counsel
now has the opportunity to see them. If in fact her subpoena was overly
broad and therefore not complied with, she now has those documents, they
are in her hands.
I apologize to Counsel for believing
Page 59.
that in fact the documents which I subpoenaed were in
fact the documents she subpoenaed. There they are and I move them into
evidence.
(Discussion was held off the record at this time.)
MS. WOLKENSTEIN: Yes, the documents subpoenaed by the
District Attorney are not the documents I subpoenaed. I wanted the visitor
record logs of the institution.
MS. FISK: The visitors logs for Miss Jones are contained
in the documents which Counsel has. However, the visitors logs are only
for visits for her 1988 incarceration, in which there were none. The
records from 1982 no longer exist.
MS. WOLKENSTEIN: But I believe, Your Honor, that the
logbooks, I believe that the institution must maintain logs of who came to
visit that institution. That is a different type of record keeping. That's
what the subpoena was for.
THE COURT: They are supposed to keep them for a hundred years?
MS. WOLKENSTEIN: I don't know, the point is that --
Page 60.
THE COURT: You don't know, that is your problem.
MS. WOLKENSTEIN: The point is, the point is that there is
no, no response to this subpoena, which -- this is no reflection --
THE COURT: Because you don't know how to make out a subpoena, that is
your problem.
MS. WOLKENSTEIN: Your Honor, I asked for logbooks and log
records of the institution for a period of time. That is immensely
clear.
MS. FISK: Your Honor, the prison, as I understand it,
then, as it does now, maintains Visitors logs as individuals come in based
on the person they are coming to visit under each inmate's file. When a
--
THE COURT: Separate logbook.
MS. FISK: There is a card on which that visitor signs
their name. Thus, if an individual seeks to know the name of the person
who has visited an inmate you ask for the visitors' logs of that
inmate.
MS. WOLKENSTEIN: There is also a book, just as when I go
into any institution I sign a book, police officers sign a log book. It is
a logbook that refers to each day, all the
Page 61.
visitors to an institution, and it contains -- there is a
separate logbook for official visitors which is police officers, D.A.'s,
Assistant D.A.'s, and sometimes they put attorneys on that list as well,
depending upon the institution. It is a daily log. It is a log of visitors
into that institution on a daily basis. And part of that log, yes,
includes a space to indicate who you are going to visit.
We wanted to examine that log ourselves. The subpoena was
not responded to. I would ask the Court to assist us in contacting the
institution. I have tried getting through. I can not get through on the
phone lines there. I have not been able to go there during working hours
since this subpoena was supposedly responded to and to get assistance from
them and to get those logs down here.
MS. FISK: Your Honor, I would amend my request to also
ask that either included as Commonwealth Exhibit 5 or as Commonwealth
Exhibit 6 a copy of the subpoena which I served which caused these records
to be delivered. A subpoena requesting all visitors logs from 1981 to
present. And records which were returned to
Page 62.
me included only records from 1988. I would ask that both of those
documents be accepted as either --
Are you going to include that as Commonwealth Exhibit 5?
THE COURT OFFICER: Whatever is your pleasure, Counsel.
MS. FISK: Fine. The subpoena along with the documents be marked as
Commonwealth Exhibit 5 and moved into evidence.
THE COURT: Okay.
MS. FISK: The Commonwealth rests, Your Honor.
MS. WOLKENSTEIN: Your Honor, I would ask for a response
to my request for assistance on this subpoena. I think we could, with
assistance from yourself, from your Court Clerk, I believe --
THE COURT: Wait a while. Wait a while, Counselor. Don't
ask for my assistance. I am not involved in this case. You should go about
it the right way. If you don't do it that is your problem.
MS. WOLKENSTEIN: The subpoena was served properly.
Page 63.
THE COURT: No, it doesn't say what you want.
MS. WOLKENSTEIN: It says exactly what I want. The Court doesn't want me
to get what we want.
THE COURT: The Court doesn't care what you get.
MS. WOLKENSTEIN: Well, there is no response to this
subpoena, not a statement those records are not available.
THE COURT: Let me see your subpoena.
MS. WOLKENSTEIN: It is for official visitor logs for the institution.
That's what we want to look at.
I would ask also, Your Honor, that be marked as Defense
Exhibit 5. This is the subpoena to the Curran Fromhold Center and the
clerk of the records room.
THE COURT OFFICER: (Handing).
MS. FISK: Would you give this to the Judge, please (handing).
(Subpoena was marked Defense Exhibit
D-5 for
identification.)
THE COURT OFFICER: So marked D-5, Your Honor.
Page 64.
This Court will take a ten-minute recess to the call of the Crier.
(Brief recess.)
THE COURT: What name was she under at that time?
MS. FISK: Your Honor, the caption of the case for which
she was arrested was Commonwealth versus Louise Tatum. And she was there
under --
THE COURT: Wait a while. You better give them both.
MS. FISK: The subpoena which I issued, Your Honor, it
does it I thought by the photo number, Police photo number. And that
--
THE COURT: All right.
MS. FISK: And that Police photo number was on the document I just moved
in, my subpoena.
THE COURT: All right, what is the number?
THE COURT OFFICER: The Police photo number, Your Honor, would be
560335.
MS. WOLKENSTEIN: But, Your Honor, I want their official logs.
THE COURT: Shut up, will you please.
Page 65.
I am trying to get --
MS. WOLKENSTEIN: Don't be telling me to shut up.
THE COURT: Look, throw her out of here. I don't want to
be disturbed. The man's on the phone. I am trying to help you. Now keep
your mouth shut.
560 what?
THE COURT OFFICER: 335, Your Honor.
THE COURT: Okay. I have to do your work for you.
(Brief recess.)
THE COURT OFFICER: Court is reconvened, please cease all
conversations.
THE COURT: Oh, I was just looking at your subpoena. No
wonder they didn't know what you were talking about. You asked for records
and you say they should be brought to Courtroom 707, that's crossed out.
You say 200, for the City aforesaid, on Wednesday morning, October 1st. I
thought that was Tuesday morning, October 1st. Homicide Post-Conviction
Relief Petition, and to produce documents, it looks like listed in the
attached codicil...
All logs and visitor records for the
Page 66.
period June the 1st - July the 3rd, 1982, which would
show visits or interviews by police officers or prosecution agents with
inmates of the Detention Center. Detention Center, that would be the wrong
thing.
MS. WOLKENSTEIN: I don't know what facility she was being held.
THE COURT: She was over with the women, that's called the
House of Corrections, really. And what you want is the logs. They don't
keep the logs more than five years: They are destroyed. So they don't have
the logs to give you.
And it's confusing. That's why they sent you things on Mumia Abu-Jamal:
That's the only name they see on there.
If you don't know how to fill out the subpoena you are
supposed to have local Counsel assist you. Why didn't you go to local
Counsel and say hey, how do I fill out the subpoena to get the records.
But they don't have that log.
MS. WOLKENSTEIN: First of all, I want to thank the Court
for making the phone call. I appreciate it. So the record is complete.
THE COURT: Let me say: The man I
Page 67.
spoke to was a Robert Dorset, he is the director of
records. He is at 685-8487. Anybody that wants to call him, it's all right
with me. But that's what he told me. They don't keep those books more than
five years and they are destroyed.
MS. WOLKENSTEIN: Okay. Just briefly as to the subpoena so
the Court understands: It was done initially for the September 18th Court
date. And unfortunately Wednesday was not changed to Tuesday when the
subpoena was changed to October 1st. The Courtrooms are because this
Courtroom or the Courtroom we were in was not assigned until the very last
moment. And the 707 was the Courtroom that we were initially assigned to
for September 18th, and Room 200 was what I was told to put in when I made
inquiries because we had no correct Courtroom.
THE COURT: Where did you make inquiries?
MS. WOLKENSTEIN: I made inquiries to the Clerks of the
Court and the PCRA unit who was setting the Courtroom. And they suggested
since I had a problem with where to have the subpoena returnable since we
had no Courtroom
Page 68.
listed to make it Room 200.
THE COURT: All right.
MS. WOLKENSTEIN: Where anyone could make an inquiry. And
in fact records did get to this room without any problem. The problem was
they were the inaccurate records.
MS. FISK: Nevertheless --
THE COURT: They are inaccurate because you didn't tell them what you
wanted.
MS. WOLKENSTEIN: Okay.
MS. FISK: Nevertheless, Your Honor --
THE COURT: Nowhere in that codicil do you mention what is her name.
MS. WOLKENSTEIN: I did not want the records of Veronica
Jones; I wanted the records of the institution, the official logbooks.
THE COURT: Well, they keep separate cards for each.
MS. WOLKENSTEIN: As I explained before --
THE COURT: I know what you wanted but they don't keep them beyond five
years.
MS. WOLKENSTEIN: Fine, if that is the response that is the
response.
MS. FISK: Having resolved that
Page 69.
matter, Your Honor, the Commonwealth has rested.
MS. WOLKENSTEIN: Okay, Your Honor.
THE COURT: Do you want to mark this thing for the record, your
subpoena?
MS. WOLKENSTEIN: Yes.
THE COURT: It's all right by me.
MS. WOLKENSTEIN: That's fine.
MS. FISK: D-5.
MS. WOLKENSTEIN: D-5.
Also, to complete the record, I would like to have marked
as Exhibits D-6 and D-7 the subpoenas to the custodian of records office
of the District Attorney and the commanding office. D-7 would be the
commanding officer or his designee of the Homicide Division. These were
two subpoenas that Your Honor quashed.
(Subpoenas were marked Defense
Exhibits D-6 and D-7 for
identification.)
MS. WOLKENSTEIN: And as D-8 the subpoena that was served
on the custodian of records, Office of the District Attorney.
MS. FISK: Your Honor, I would note that if a subpoena is
quashed by this Court it would been improper to make it a part of the
record: It has been quashed.
Page 70.
MS. WOLKENSTEIN: Then the appellate court would have a
chance to be able to review the substance of the subpoena, it would be
there to complete the file.
(Discussion was held off the record at this time.)
MS. FISK: I'm sorry, I would note that one of the three
documents I have, Your Honor, is a subpoena referring to an attached
codicil and there is nothing attached.
MS. WOLKENSTEIN: Okay, I'm sorry. Which one is that? I'm sorry.
MS. FISK: I have --
MS. WOLKENSTEIN: Which one doesn't have the attached codicil?
MS. FISK: This one says the Office of the District
Attorney, D-8, although D-6 is also a subpoena to the Office of the
District Attorney with an attached codicil.
MS. WOLKENSTEIN: I'm sorry, I just pulled the wrong thing
out. So the one with the codicil to it for the District Attorney, that is
one of them. That is fine.
Okay, here it is with a codicil on it. The other one, that has the
codicil.
Page 71.
MS. FISK: Yes.
MS. WOLKENSTEIN: Okay, that's fine.
MS. FISK: And I would note, Miss Wolkenstein, that
Defense Exhibit 6 and Defense Exhibit 8 appear to be identical. I would
ask you to review both of those, perhaps you only want to mark one.
MS. WOLKENSTEIN: All right, so you had the one with the codicil on it.
That's fine. That's D-6.
THE COURT: D-6. So we don't have a D-8?
MS. WOLKENSTEIN: No, D-6 is the District Attorney.
MS. FISK: D-7 is to the Police Department.
MS. WOLKENSTEIN: Okay, fine. And then D-8, then, will be the Homicide
Division.
MS. FISK: I thought that was D-7.
MS. WOLKENSTEIN: Well, they have just been changed. One
is the Homicide, okay, and then the other is... okay, D-8, then, will be,
okay, D-8 is commanding officers or his designees, reports, control and
review, Philadelphia Police Department (handing).
Page 72.
(Subpoena was marked Defense Exhibit
D-8 for
identification.)
MS. FISK: Are you getting enough exercise?
May I see the other two as well?
THE COURT OFFICER: (Handing.)
MS. FISK: Thank you.
THE COURT OFFICER: So marked accordingly, Your Honor.
MS. WOLKENSTEIN: Okay, sorry about that. Then as D-9 --
THE COURT: Wait a while. Wait a while.
Are you answering these things?
MS. FISK: They are simply being marked as part of the record, Your
Honor.
THE COURT: But she is saying you are not honoring them.
MS. FISK: Your Honor has quashed them. Counsel has
indicated she is making it a part of the record so an appellate court
could review them.
THE COURT: Let me see them. You say I quashed them. Let me see what I
am quashing.
MS. FISK: Very well, Your Honor.
Page 73.
These were subpoenas seeking the District Attorney's
Office file in the case of Commonwealth versus Mumia Abu-Jamal, as well as
the Police Department's file in that same prosecution.
THE COURT: They want all records, files, memoranda,
reports, notes, rough notes, whether typed, handwritten or taped. Boy.
That's a real broad subpoena. No wonder.
MS. WOLKENSTEIN: Your Honor, I indicated I would be happy
to modify that so that it dealt with only the records concerning Veronica
Jones.
THE COURT: Well, that was the way it was.
MS. WOLKENSTEIN: No, we had a discussion about that.
Alternatively, if Your Honor, if the Court would honor that, given the
evidence that we have produced from Veronica Jones, and the fact, and the
fact that --
THE COURT: You have to be specific. I don't know what you want. And
neither do these people.
MS. WOLKENSTEIN: No, we wanted the entire --
Page 74.
THE COURT: The whole file.
MS. WOLKENSTEIN: The whole file, yes.
MS. FISK: Our objection was based in part upon Your
Honor's prior ruling that there were no discovery provisions for
Post-Conviction Relief Act proceedings. Nevertheless, I note that Counsel
is marking those, those are being moved into the record. I again note the
Commonwealth has rested and asks whether this proceeding has ended.
THE COURT: Now they are talking about Detective William Thomas in
D-7.
MS. WOLKENSTEIN: Right, Detective William Thomas is, as
our understanding was, the officer, the detective in charge of this
investigation from the Homicide Division. At least that's what the record
reflects.
THE COURT: Is that the gentleman who testified here?
MS. WOLKENSTEIN: Yes.
THE COURT: He told you that he had superiors over him.
MS. WOLKENSTEIN: Yes, he did. But all the trial record
indicated was he was the person who was responsible for the
investigation
Page 75.
and he oversaw it.
THE COURT: I know but you had him here and he testified.
MS. WOLKENSTEIN: You wouldn't let us ask the questions.
THE COURT: What questions?
MS. WOLKENSTEIN: Other questions beyond.
THE COURT: What other questions?
MS. WOLKENSTEIN: The one question that the District Attorney asked
him.
THE COURT: But you got a chance to ask a lot of questions.
MS. FISK: I would note that Detective Thomas was subject
to cross-examination for some extensive period yesterday. I would also
note that Your Honor has previously ruled with regard to these subpoenas.
Counsel is at this time simply marking them to be moved into the record.
And I would ask whether Counsel can move from that and we can determine
where we are now going with this proceeding.
MS. WOLKENSTEIN: I have a couple other --
THE COURT: Well, she wanted to, under
Page 76.
D-8, she wanted the logs on William Cook, Kenneth
Freeman. Well, you know, William Cook wouldn't come in here to
testify.
MS. WOLKENSTEIN: Your Honor, he was scared away from testifying.
THE COURT: He was scared away?
MS. WOLKENSTEIN: He was told that what happened to
Veronica Jones would happen to him. That was made very clear by the
District Attorney's Office and this man is scared to death.
THE COURT: Counselor, let me tell you, if this was my
brother I don't care if they had a hundred subpoenas for me, I'd have been
in here. Don't give me that story.
MS. WOLKENSTEIN: The point is we requested that this
Court allow him to come in without having a threat of arrest. The Court
did not grant that, he was scared away.
THE COURT: I did? They have a warrant for him?
MS. WOLKENSTEIN: And the treatment of Veronica Jones just confirms
these fears were well-founded.
THE COURT: A judge would decide what
Page 77.
do with him.
MS. WOLKENSTEIN: Veronica Jones did not get out of incarceration
yesterday morning.
THE COURT: I thought she was here today.
MS. WOLKENSTEIN: She spent, she spent the night in jail.
She did not get out until six o'clock in the morning, and she only got out
at six o'clock in the morning because people were outraged by this Court
and the District Attorney's Office and raised bail money for her.
THE COURT: What did the judge say, did he put her out on bail?
MS. WOLKENSTEIN: She got out on bail.
THE COURT: Well.
MS. WOLKENSTEIN: The fact that there was bail money for
her and people there in Court was a response to the outrage that people
had against what the prosecution --
MS. FISK: Your Honor, I certainly hope that the next time
I prosecute a homicide case in the neighborhood of every one of those
people they will be as outraged and willing to come in and testify with
regard to what they know so that they can assist in keeping the
Page 78.
streets safe for all of us.
I would ask once again if we could please move on from these subpoenas
and get to the next matter.
THE COURT: Okay.
MS. WOLKENSTEIN: This morning, Your Honor, we subpoenaed,
and the record is here in Court, this is file MC 96 dash 09 dash 0936 dash
19. This is the file concerning Veronica Jones on the fugitive from
justice warrant, what is the underlying basis for her arrest from
testifying here on the 1st. I would ask that this record which is an
official record be marked for evidence, and I would move it later, mark it
as an exhibit and moved into evidence later (handing).
That would be D-9.
(Pause.)
MS. FISK: (Handing).
(Quarter Sessions file was marked
Defense Exhibit D-9
for identification.)
THE COURT OFFICER: So marked D-9, Your Honor.
MS. WOLKENSTEIN: Okay, Your Honor, just a couple more matters. Your
Honor
Page 79.
indicated in Court yesterday that Joseph Brignola did not
honor our subpoena. We sent an investigator back there this morning to his
home, he was not there in the early morning hours before eight o'clock. I
note from reports in the newspaper this morning that someone from the
press contacted Mr. Brignola at his office yesterday.
THE COURT: You ought to have the press serve your subpoenas.
MS. WOLKENSTEIN: I should.
THE COURT: They could do a better job than you and your so-called
investigator.
MS. WOLKENSTEIN: If they would have done that I would have been
eternally grateful.
THE COURT: They could have had Jones in here for you if you asked them
to publicize it in the paper.
MS. WOLKENSTEIN: The substantive point about that is Mr.
Brignola was in his office, contrary to the information given to our
investigator when we went to serve him a subpoena to make sure he came in
because he had not responded in his previously cooperative attitude. I am
very distressed about the fact
Page 80.
that a police officer, former police officer would have so blatantly
lied in terms of cooperation.
THE COURT: Let me tell you this, Counsel: I will never
issue a warrant for anybody who is not properly served. Sending it to him
in the mail, that is not proper service. And I would never issue a warrant
for that man's arrest.
MS. WOLKENSTEIN: I wanted to indicate to the Court --
THE COURT: I know you wanted to indicate.
MS. WOLKENSTEIN: -- that we had tried again.
THE COURT: Well.
MS. WOLKENSTEIN: That there was information that he was
in fact at home, or working, contrary to the report that we got, I presume
now from him, that he was ill with a back problem and he was at his
sister's. And I also wanted to indicate to the Court that I had spoken to
him several times and he had assured me, as someone who had been formerly
employed and paid good money by the defense here, that he
Page 81.
would come into Court and testify as to his investigative efforts on
behalf of Mr. Jamal.
I would renew my request, Your Honor, that we introduce,
I have marked as an exhibit the correspondence, two letters from Mr.
Brignola to Mr. Weinglass, again they were dated, dated August, August and
December of 1993. Could I have those, would the Court agree to have those
marked?
MS. FISK: No, Your Honor, I would object: That is hearsay.
MS. WOLKENSTEIN: Okay. One other matter, Your Honor.
Well, would the District Attorney agree to bring Mr. Brignola in? I am
sure you would have more persuasive powers.
MS. FISK: Trust me, I would not.
MS. WOLKENSTEIN: I know since the District Attorney's
Office has been very concerned with the question of whether or not the
defense is engaged in due diligence here, Mr. Brignola is a very key
witness and I think that it would provide edification for all of us.
THE COURT: You should have properly served him in the first place, then
I would be able to issue a warrant.
Page 82.
MS. WOLKENSTEIN: I think a simple phone call from the District
Attorney.
MS. FISK: I can assure Counsel that a request from me to
Mr. Brignola to come into this Court would send him in the opposite
direction as soon as he received it.
MS. WOLKENSTEIN: That is a no then, I guess.
MS. FISK: I cannot, cannot and have no ability to control
Mr. Brignola. Nor do I have a relationship with him that would enable me
upon request to produce him. I can assure you of that.
MS. WOLKENSTEIN: Okay. Our next matter, we are renewing
our request to have the affidavit of George Michael Newman marked as an
exhibit here. George Michael Newman, as was indicated in Court testimony
yesterday, was, is the head of Tactical Investigations.
MS. FISK: And I would make the same objection I made two
days ago. And I would object to it being reread into the record,
redescribed into the record, or any further details with regard to it. Mr.
Bell testified and great portions of his affidavit have already
Page 83.
been read. Mr. Newman was not available Tuesday,
apparently was not available yesterday, is still not available. And I
would object to any further reference with regard to him beyond that which
has been testified to.
THE COURT: You know, it would have been much smarter for
defense Counsel to hire somebody that's local who knows how to use a
computer, who would be here with your investigators and be able to work
together. You go all the way out to California, you are sending
information to him, he is sending information here. You can't run it like
that.
MS. WOLKENSTEIN: Well, Your Honor, we would be happy -- let me just
indicate --
THE COURT: It is too late now.
MS. WOLKENSTEIN: Let me just indicate to the Court that
the defense team has hired or attempted to hire numerous investigators
from the City of Philadelphia and who -- provide me with the opportunity
of making a record -- that this case is so high profile that the --
THE COURT: Counsel.
MS. WOLKENSTEIN: -- that the atmosphere against Mr. Jamal is so
charged, as
Page 84.
was seen by what happened in Court --
THE COURT: That is a statement you make. They are charged outside. Let
them go. Let them go.
MS. WOLKENSTEIN: The investigators in Philadelphia tell
us that they could not work on this case because if they did they would
never get any other employment in this city. And that was the reason why
--
THE COURT: Well, go over to New Jersey.
MS. WOLKENSTEIN: -- why you have to go as far as San Diego to get
assistance to work on this case.
THE COURT: You don't have to go all the way to
California. Don't give me that baloney. You could have gone right over to
New Jersey.
MS. WOLKENSTEIN: Right. We started with Mr. Kareem Shabazz. There was
Lamont Anderson.
MS. FISK: Mr. Shabazz, incidentally, stopped working on
this case because members of MOVE were dictating to him the conditions
under which he had to work.
Page 85.
MS. WOLKENSTEIN: Is this being said --
MS. FISK: That was the conversation that Mr. Shabazz had with us this
morning.
THE COURT: I don't want all this malarkey. You have
enough malarkey in here, I don't know how the Supreme Court is going to
handle all this stuff.
MS. WOLKENSTEIN: Yes, I talked to Mr. Shabazz myself in
the month before this hearing began, in which he agreed to do work, and
then you know what, he simply disappeared. And I assume it came from
pressure from the police and prosecution community.
THE COURT: Oh, you assume that?
MS. FISK: Yes, Your Honor, because every single person
who walks the streets and sidewalks of the City of Philadelphia are
sitting down with the prosecutors and the police and the prison officials
each and everyday so they can plan evil things to do to Mr. Jamal. It is
all part of the conspiracy.
MS. WOLKENSTEIN: What happened to Mr. Shabazz verifies what we are
saying.
THE COURT: Yes. I know.
Page 86.
MS. WOLKENSTEIN: Another thing, I was attempting to make
sure the record here on this particular hearing and case is complete. We
have subpoenaed and have marked as evidence various files of Miss Jones'
past record, her criminal record, I don't know, some ten or, ten or so
files. I was attempting to make copies of them in order for them to be
able to put, the copies to be put with the record here directly with this
so that the record would be complete.
Mr. Conaway, who is one of the supervisors across the
hall from the Court, in the Quarter Sessions, has said that he did not
want, I have just been notified, did not want the entire subpoenaed files
copied. I presume and the information is that if the Court agrees that
they could be copied and made part of the record then he would see to
that. I think that would make it much more complete so that if anyone
wanted to review this matter they wouldn't have to then re-subpoena --
THE COURT: Okay.
MS. FISK: I have no objection, Your Honor.
THE COURT: She has no objection, all
Page 87.
right.
MS. FISK: So long as I am advised that the Clerk from the
Court of Common Pleas Quarter Sessions will be photocopying the entirety
of those files which were placed into the record, I have no objection as
to whether they are copies or the original.
MS. WOLKENSTEIN: Okay, one of our staff people was doing them. I would
be happy for somebody else to check them.
MS. FISK: I have been advised by the Clerk in the
Courtroom that those files are in fact being photocopied and photocopies
of the files will be in the record rather than the originals. And the
Clerk of Quarter Sessions is in the Courtroom now certifying they will be
full and complete copies. I have no objection to that.
MS. WOLKENSTEIN: Mr. Conaway wanted to remove some things
from the file. The point is we wanted everything in the file, we wanted
everything in the file.
THE COURT: They have the file, the Clerk has the files, they will do
the whole thing.
Page 88.
MS. WOLKENSTEIN: Thank you very much. I'm sorry. Okay, great, thank you
very much.
The last matter, Your Honor, is I wanted to place on the
record the fact that defense has been speaking with other potential
witnesses in this case. And I wanted to inform you of that. We are as
expeditiously as possible investigating all leads in this case and will
bring them to the attention of this Court and the Supreme Court as we find
them.
THE COURT: Well, take it up with the Supreme Court.
Because they gave me a definite Order: I am only to hear about Veronica
Jones.
MS. WOLKENSTEIN: I am informing the Court of that and I
also want to indicate again, I think it's clear, that the treatment of
Veronica Jones has made it very, very difficult in these last --
THE COURT: Come on now.
MS. WOLKENSTEIN: -- in these last days of trying to talk to people and
investigate these claims.
THE COURT: I didn't commit those crimes, she did.
MS. WOLKENSTEIN: People are not
Page 89.
willing to come forward and risk the type of treatment
that was meted out to Miss Jones, if they come forward in any way
favorable to Mr. Jamal.
THE COURT: See, they have to go before the Municipal
Court Judge and ask for extradition. Now, if she wanted it resolved, all
she had to do was waive extradition, she could have gone over to - - what
was that, Woodbury?
MS. WOLKENSTEIN: She wasn't fighting extradition.
MS. FISK: I believe she did, Your Honor, once she was
brought in front of a judge she did indeed, extradition was waived.
MS. WOLKENSTEIN: Until six o'clock.
THE COURT: I can't help that, I am not the judge that handles that
thing.
MS. WOLKENSTEIN: From noon of the prior day to six o'clock in the
morning.
MS. FISK: Your Honor, do I understand that defense is resting?
THE COURT: Well, they rested long ago.
MS. FISK: I mean resting on rebuttal.
Page 90.
THE COURT: Oh.
MS. FISK: If that is the case will Your Honor entertain argument
today?
THE COURT: Yes, I will, but at two o'clock. I have a meeting at
12:30.
MS. FISK: May I ask Your Honor, will we be arguing today
and then returning in perhaps 10 days after we return the notes of
testimony to offer proposed findings of fact and conclusions of law? Or
--
THE COURT: Well, you could do whatever you want. But I may be in the
process of writing up my opinion.
MS. FISK: Your Honor, we have no objection to making
argument today and we are certainly prepared to do so. We would ask,
however, we are advised that the notes from this proceeding will take
approximately one week to be completed.
Is that correct, Mr. Gorgol?
About a week. We would ask that after argument at two
o'clock this afternoon, that we, the matter be completed and Your Honor
can simply after perhaps three weeks, after both sides have been given an
opportunity in about
Page 91.
three weeks to submit proposed findings of fact and conclusions of
law.
THE COURT: Three weeks. You know I have to write my opinion in 30 days.
Why are you giving me three weeks?
MS. FISK: 30 days from today's date.
THE COURT: Yes.
MS. FISK: Yes, sir, we are advised that the notes of
testimony will take about a week. We would ask for, Your Honor, about a
week after that in order to submit proposed findings of fact and
conclusions of law.
THE COURT: Well, I don't care because I may not have my opinion ready
yet.
MS. FISK: We would simply ask Your Honor, as I say, we
have no objection to making the arguments today and Your Honor holding it
under advisement and simply releasing that opinion without further Court
proceedings after receiving briefs from both sides.
THE COURT: Okay.
MS. FISK: Thank you, sir. So two o'clock Your Honor will have closing
arguments?
THE COURT: Yes.
MR. WILLIAMS: Your Honor, in view of
Page 92.
the fact that there will be argument, apparently, at two
o'clock, and that we now have to evaluate the records so we can marshal
the evidence in our arguments, I would like to say this. That there is an
elementary rule of law and decency that we --
THE COURT: I don't know about decency, okay, but go ahead, what is the
rule of law?
MR. WILLIAMS: That when an attorney questions a witness,
there must be a good faith basis for any underlying suggestion that --
THE COURT: Counselor, couldn't that wait until two o'clock?
MR. WILLIAMS: No, I really would like, so that when we
consider the evidence that we have to marshal to Your Honor at two
o'clock, we have a certain understanding as to what that evidence is. That
there must be a good faith basis to propound the question to a witness.
What I want to address briefly is the rather scandalous suggestion that
the defense has suborned perjury through the payment of Veronica Jones
that came in through questions. Questions themselves --
Page 93.
THE COURT: All right.
MR. WILLIAMS: -- without the answer is not evidence. But
more distressing is that it appears now, because the prosecution has
rested, that those questions concerning payments to Veronica Jones, or the
suggestions, were made without any good faith basis. They have essentially
implicated the defense in committing a crime, which is libelous if the
suggestion was made outside of a Courtroom, and they did it without any
good faith basis. So not only is there no evidence of that, but I ask that
that entire inquiry be stricken from the record because it poisons the
atmosphere in this proceeding far beyond what can be tolerated, to
implicate the defense in a criminal act, for which I'm sure if the
Commonwealth had evidence, they would convene a grand jury rather quickly.
But to suggest it in questions, knowing that there was no good faith
basis, really ought not be tolerated in any Courtroom in this country.
MS. FISK: Your Honor, the Commonwealth had information
that as of February of this year, the address where Miss Jones resided was
more than $4,400 in arrears on rent.
Page 94.
That in March, May, June -- and I might be missing --
July, August and September, huge portions of that arrears were repaid. She
was asked in fact whether those huge amounts were repaid at those times in
accordance with the schedule which we had been advised existed and she
admitted that that was so. You may use that as circumstantial evidence if
you wish. You need not do. The Commonwealth asked her whether that was
payment, she said it was not.
Nevertheless, the fact that thousands of dollars in
arrearage has been paid since March of this year was information which the
Commonwealth had and which Miss Jones agreed occurred.
MR. WILLIAMS: Your Honor, if the defense ever suggested
that we were entitled to look at the bank records of all of the witnesses,
I am sure that we would be met without outrage by Ms. Fisk, and probably
rightly so.
MS. FISK: Your Honor, the Commonwealth found the landlord and asked
him.
MR. WILLIAMS: There is no evidence that any of those arrearages were
paid by the
Page 95.
defense. And to suggest that --
THE COURT: Counselor.
MR. WILLIAMS: To suggest they were paid by the defense is entirely
false.
THE COURT: You had a right to call anybody you wanted.
You could call the landlord or anybody you want but you didn't do it.
All right, I will see you back here at two o'clock.
MS. FISK: Yes, Your Honor.
THE COURT OFFICER: Yes, Your Honor. This Court now stands adjourned
until 2:00 p.m. at the call of the Crier.
- - - - -
(Luncheon recess was held until 2:05 p.m.)
- - - - -
THE COURT: Good afternoon, everyone.
MS. FISK: Your Honor, may I inquire whether the Court is imposing a
time restriction on arguments?
THE COURT: Well.
MR. WEINGLASS: This week?
MS. FISK: I was going to suggest no more than 30 minutes a side.
Page 96.
THE COURT: All right. I don't care.
MS. WOLKENSTEIN: Your Honor, before we begin, I just want
to clarify one problem with those Quarter Session files that is still
going on. There is a question of whether or not the copies, which are to
be placed, since these are exhibits and part of the evidence here, into
the files on this proceeding, whether the copies are only, are the full
set, everything that's in The Quarter Sessions files, or this is somehow
only what is publicly available. Apparently Mr. Conaway is still
maintaining that only the portion that is publicly available can be made
part of the record in this proceeding in terms of the copies. And I have a
problem with that. Because what's publicly available is not in fact the
information that contains the particular personal information that is
there about the person who is the Defendant in those cases.
So either the full set has to be there so it establishes
all the information about the individual, and I presume if we had
subpoenaed those to Court we would have the full file to look at, as we
were able to do here. And that's what I was intending to move into
evidence.
Page 97.
If we're going to have a restricted file, then I believe
it has to be clear in the record that this is a restricted file, and if
somebody without Court subpoena simply went and looked at the file they
would get only those documents which are now going to be appearing in the
record.
MS. FISK: Your Honor, for the first time in several days
I agree completely with Miss Wolkenstein. It was my understanding that
when you subpoena a Quarter Sessions file the entirety of the file is what
you get to see. I was never made aware that there are parts of it that
remain hidden. And I again state that I have no objection to the entirety
of those files, from the front of the manila folder to the back of the
manila folder, being photocopied and placed into the file.
THE COURT: If everybody is agreeable it's all right by me.
MS. WOLKENSTEIN: So Mr. Conaway just has to be informed of it.
THE COURT: He has to be informed of it, he will take care of it.
MS. WOLKENSTEIN: He was out for
Page 98.
lunch. I asked if he could please come to the Courtroom.
THE COURT: He will be told by the Court Officer.
THE COURT OFFICER: I believe he is outside now. The Clerk is coming
now. So he will be informed, she'll be informed.
THE COURT: All right.
MS. WOLKENSTEIN: It could just be clarified with the
Clerk here that the entirety, the full Xerox, everything that was in the
Quarter Sessions files will be put into the files here on this case as
part of the record. No --
THE COURT CLERK: I still can't do that.
MS. WOLKENSTEIN: This is the problem.
THE COURT: Who said that?
MS. WOLKENSTEIN: We wanted it in Mr. Jamal's file.
MS. FISK: No, I thought the files we were discussing were Veronica
Jones' prior files.
MS. WOLKENSTEIN: Veronica Jones' prior files, copies of everything in
there, the
Page 99.
entirety of the file, even those portions that are not
publicly available, have been introduced into evidence as part of this
proceeding. And copies of that full file have to be made part of the file
that's involved in this case. All the exhibits. So, yes, it goes into Mr.
Jamal's file as part of this case, the file of this case.
MS. FISK: As exhibits.
MS. WOLKENSTEIN: As exhibits. There is a dispute with Mr. Conaway still
on it so we need --
THE COURT CLERK: You have to speak with Mr. Conaway.
MS. WOLKENSTEIN: Well, the Judge I believe --
THE COURT: Okay, if you have any trouble call me.
MS. WOLKENSTEIN: Well, we have trouble.
THE COURT: I said if you have anymore trouble call me.
MS. WOLKENSTEIN: Okay.
THE COURT: Let's get going, it's after 2:00.
Page 100.
MS. WOLKENSTEIN: So it is clear, that you - -
THE COURT: Come on. Move. Whoever is going to argue for the defense,
let's go.
MR. WEINGLASS: If the Court please, at the outset, and I
don't want to take any greater time than is necessary for this, I just do
want to indicate that there has been an ongoing problem here in the
Courtroom with respect to people who have come here to witness the trial
-- the hearing. And there are people, so to speak, who are on both sides
of the fence who are here. And the people who came here wearing buttons on
Mr. Jamal's side --
THE COURT: I don't want to hear that now. Please, I don't
want to go into that now. You're taking up my time and you're taking up
your time. So take it up with me after a while if it's that important.
MR. WEINGLASS: Well, this is our last session.
THE COURT: Well, it is our last session.
MR. WEINGLASS: And I did want to indicate that people have been asked
to remove
Page 101.
any buttons or anything that they have been wearing that
supports Mr. Jamal, whereas people on the other side who are wearing FOP
buttons have not been similarly asked, I'm told.
THE COURT: What kind of FOP buttons?
MR. WEINGLASS: Pardon? Fraternal Order of the Police buttons.
THE COURT: What kind? I know but what kind of buttons are you talking
about?
MR. WEINGLASS: They are buttons that you wear out of your
clothing which indicates that you are a member of a political union. And I
have no quarrel with that.
THE COURT: I don't see anybody with buttons.
MR. WEINGLASS: The people who had buttons were not allowed in the
Courtroom if they wore Mr. Jamal --
THE COURT: I don't see anybody with FOP buttons, that's what I am
saying. I am looking out there, I don't see any.
MR. WEINGLASS: Yes, there are.
THE COURT: Where?
MR. WEINGLASS: With FOP buttons, if they could stand.
Page 102.
THE COURT: Well, I see the president there, he doesn't have any on.
MR. WEINGLASS: Well. There are others who are wearing --
THE COURT: Well, who are the others? I don't know what you're talking
about.
MR. WEINGLASS: Yes, Your Honor, there are. There is a
gentleman fingering his button right now. I don't know what it is, I can't
see from here, but he has a button.
THE COURT: Sheriff. Sergeant, what kind of button is that?
MR. WEINGLASS: My point is everyone should wear buttons.
I am not against anyone wearing buttons. It's just that people on our side
--
THE COURT: I don't care what you're for or against. The Sheriff runs
the Courtroom here.
THE SHERIFF: One button is just for a deceased police
officer in the line of duty, it is from Washington D.C. It is just a badge
and insignia.
MR. WEINGLASS: And he has a right to wear that, he has an absolute
right to wear
Page 103.
that. And people who were ordered to remove their buttons
on the Jamal side are sitting without buttons because they wouldn't be
allowed in with their buttons.
THE COURT: What is the difference? What is the big deal about a
button?
MR. WEINGLASS: It is a First Amendment right. The United States Supreme
Court has made a big deal about it.
THE COURT: Well, then take it up with the United States
Supreme Court. Let's get going. I want to finish this before I go. I am
going to leave after a while.
THE SHERIFF: He took the button off, Your Honor.
MR. WEINGLASS: I am not asking him to take the button off.
MS. FISK: I would note that Counsel has been doing this now for several
minutes.
THE COURT: Let me say this to you: I didn't issue any
kind of order, but I don't care whether they wear it or they don't wear
it. If the Sheriff is enforcing some rule here, take it up with the
Sheriff.
MR. WEINGLASS: There is no rule
Page 104.
respecting that.
THE COURT: I don't know.
MR. WEINGLASS: But the Sheriff's been enforcing it against one side and
not the other.
THE COURT OFFICER: Your Honor, if I may: The Sheriffs did
not enforce it. Your Honor, the day before yesterday I made the
announcement as from before when we were in 650 and we had the problem
with both sides wearing buttons and shirts, and it became a confrontation.
So to head off the confrontation, Your Honor, on Tuesday evening before
anybody in the audience left, I made the announcement to please not wear
any paraphernalia that would cause or incite a fight or a riot. And I
asked both sides, not one side, Your Honor, both sides. And then this
morning, yesterday, Your Honor, everything was fine. Nobody came in,
nobody had any complaints about it. And now today, Your Honor, they come
in and they want to escalate something. So this is what they did. And all
I did was ask the young lady not to wear it because I didn't want anything
to be incited in the Courtroom. And that was all, Your Honor.
Page 105.
THE COURT: Okay.
THE COURT OFFICER: That's what happened.
THE COURT: Wearing a button is not freedom of speech.
MR. WEINGLASS: It absolutely is.
MS. FISK: That is not the issue in this proceeding.
MR. WEINGLASS: California versus Cone.
MS. FISK: May I ask if Counsel would like to file a suit
on behalf of the American Civil Liberties Union or anyone in the Courtroom
who has been injured, that could be done at a different time. We are here
at this time on this Post-Conviction Relief Act.
THE COURT: All I want to do is hear your argument. If you don't want to
give one that's all right.
MR. WEINGLASS: I do. I don't want to function in a Courtroom where
First Amendment rights are openly being --
THE COURT: Don't then, I don't care.
MR. WEINGLASS: It also impacts Mr. Jamal's right to an open
trial.
Page 106.
Defense Argument
THE COURT: There are people out there.
MR. BURNS: I assume this time will count against Counsel's half
hour.
THE COURT: It will in a second if he doesn't get moving.
MR. WEINGLASS: With respect to the matters raised in this
hearing, I think, as in all arguments, an argument should proceed from
those matters which are not in dispute as a framework for examining those
matters which are in dispute. When we look at the evidence that's before
this Court on this issue of Veronica Jones, we are immediately confronted
with two issues that are not in dispute. Issue number one: Was her
December 15th, 1981 statement as recorded by Officer Bennett, and marked
as an Exhibit in this case, a truthful statement by Veronica Jones within
one week of the shooting, that she saw two black men jogging away, as
Officer Bennett testified, from the scene of the shooting.
I think the record is abundantly clear on that. Veronica
Jones said she told that to the officers and Officer Bennett said I
heard
Page 107.
Defense Argument
her tell us that and I wrote it down. There is no dispute
that that's what occurred on December 15th, all sides agree.
Furthermore, there is no dispute, as there can not be a
dispute, that on June 29th, when Veronica Jones testified under oath, she
denied that she ever told anyone that she saw people jogging from the
scene.
So with those two facts which are not in dispute the
issue is framed. And the issue is framed in this fashion. Did Veronica
Jones testify untruthfully when she said in the trial that she did not see
two people run from the scene. And I think on the basis of this record
there can be no dispute over the fact that she testified untruthfully and
that Mr. Jamal was convicted in part on the basis of falsified
testimony.
So we have that as a given. Now the question is why did
she change her testimony. Why did she testify untruthfully on June 29th,
and what does this record indicate about that?
What the record indicates is we have Veronica Jones'
testimony yesterday, or the day before, that she changed her testimony
because
Page 108.
Defense Argument
she was visited several days or up to a week before she
testified by two detectives who pointed out to her that they could help
her if she would help them and that the very serious charges she then
faced would go away providing she did nothing to help Mr. Jamal.
Is there any other evidence in this record that would
give a reason for Veronica Jones to change her testimony from her December
15th statement? Mind you, that testimony was given against Mr. Jamal, and
indeed it hurt his defense substantially. So no one on Mr. Jamal's side
would be interested in having her change that testimony. Indeed, Mr.
Jamal's attorney called Miss Jones for that very reason, to confirm the
fact that two people jogged away from the scene, and to offer confirmation
of the testimony that was offered by witness Dessie Hightower who said he
saw one person run.
And Your Honor will recall that witness Chobert told the
police as they arrived that the guy ran away, and he then gave the police
a statement 30 minutes later which he signed that he saw someone run. But
when he got to the stand he also retracted those earlier
Page 109.
Defense Argument
statements and said he was mistaken. We now know from the
record that was made last July, or August, which is part of this record,
that witness Chobert was then on parole for a serious felony violation and
he was driving that night without a license. And that he had had some kind
of a conversation with District Attorney McGill relative to his status as
an unlicensed cab driver.
So this record as it stands gives witness Chobert a
motive to lie about seeing someone run; it gives witness Veronica Jones a
motive to lie about seeing someone run. And as Your Honor knows, Debbie
Kordansky was never produced in the trial, although she did testify last
summer, and she recalls that she told the police that someone did run. And
there is a dispute in what direction, but I think the evidence is pretty
clear that she has that individual running away as well.
So the product of the investigation is that four people
saw someone run: Hightower, Chobert, Jones, Kordansky. But when the case
was tried, only one would come in here and so testify. And that testimony
was not supported
Page 110.
Defense Argument
by any of the other three, because Chobert had a motive
to lie in favor of the prosecution, and Veronica Jones we now know also
had a motive to lie, and indeed she confesses that she lied.
Now, given that set of circumstances I think there is no
other conclusion that could be reached on the basis of this record but
that Mr. Jamal, who stands convicted of a capital case, was convicted as a
result of false testimony at his trial, as a result of prosecutorial
misconduct, and as a result of witnesses who were threatened, coerced,
intimidated, and found their own self interest in testifying against
him.
I have not mentioned at all the fact that witness
Singletary came in last summer and he also explained why he did not appear
to testify. And he did not appear to testify because he also saw someone
run and was threatened and coerced, as he testified, and failed to appear
in the trial at all.
Now, what do we know about Veronica Jones and why she's
coming forward now? We know she was in custody. We know she faced serious
charges at the time of the trial: Armed
Page 111.
Defense Argument
robbery, possession of a weapon with a weapon being
discharged. What do we also know? She got probation after she testified.
Does that lend support to her claim that she was compliant with the threat
that was made to her that she would not see her children for five to ten
years if she said anything to help Mr. Jamal?
Not only did she face serious charges, but she fled this
jurisdiction and avoided prosecution for six years. You would think that a
sentencing Court, having someone who was convicted in this set of
circumstances, and even pled guilty, and who fled the jurisdiction to
avoid prosecution, and who had a long criminal record of many prior
arrests, something remarkable had to happen here for Veronica Jones to get
probation. Completely unexplained on this record.
And let's look at Veronica Jones today, this week as she
testified. Oh, the prosecution says, and they brought in an extraneous
witness on a collateral attack on her credibility, which I think Mr.
Williams is absolutely right to point out to this Court was collateral
impeachment, not allowed in the
Page 112.
Defense Argument
Commonwealth of Pennsylvania, but permitted in this Court
today, collateral impeachment on a non-material matter was permitted here.
But what did that collateral impeachment show? It showed this. That
Veronica Jones already pled guilty to these charges of having a gun. She
admitted it in '88. Why would she now come to Court and say that the gun
was under a cushion, I was sitting on it, as opposed to in my waistband?
She's already been faced with that charge. There is no reason whatsoever
for her to lie about that issue. It's not like she still faces the
charges.
These charges were done away with eight years ago. There
is utterly no reason for her to deny having those guns in her possession:
The case is gone.
Now, was it important for the prosecution to defeat the
claim that someone ran from this scene, the claim made by Chobert,
Singletary, Hightower, Kordansky and Jones? Of course it was critical.
Because if the shooter ran, the shooter could not have been Mr. Jamal, who
was lying on the sidewalk in a pool of blood and found within minutes of
the shooting. So
Page 113.
Defense Argument
the prosecution set about to defeat the evidence of his
innocence, and they did it by turning Veronica, turning Chobert,
disappearing Kordansky, and coercing and intimidating Singletary, leaving
Dessie Hightower, who also was coerced.
You remember Dessie Hightower last summer, and five hours
of police interrogation, followed by a polygraph? And remember that
polygraph, Your Honor? They didn't ask him did you see anyone run from the
scene because they knew he would pass on that one. They asked him every
other kind of question you could imagine but they kept away from that
one.
Yesterday, Officer Bennett testified that after Veronica
gave a statement, or contemporaneous with it, Officer Harmon drew a
diagram of the critical events that she saw that night. A policeman on the
ground. The police car in the street. A man standing by the Speed Line.
But what was absent from that diagram? The two black men jogging away. It
was absent from that diagram the same way it was absent from Chobert's
testimony. The same way it was kept from the defense by disappearing
Kordansky.
Page 114.
Defense Argument
And the same way it was kept out on the Singletary issue
by threatening Mr. Singletary and ultimately driving him out of the
City.
There is no other explanation as to why the two black men
jogging away from where a dead police officer was laying on the sidewalk
was omitted from that diagram except that it was inconvenient to the case.
And when you see that diagram, and it's undeniable, it gives you what? It
gives you insight into the way they were dealing with this investigation.
They had Mr. Jamal, he was on the sidewalk in a pool of blood. They were
not interested in anyone who ran from that scene who might have been the
shooter.
I know this Court has been involved in some aspect of law
enforcement, not in homicide investigation, in the Sheriffs Department.
One week after a police officer is shot an eyewitness is interviewed and
says I saw two black men jog from the scene, and the officer taking that
interview does not ask her to describe those men. Why? No interest in
that. That would harm the case, the theory that it had to be Mr.
Jamal.
Page 115.
Defense Argument
Now I want to just shift over and in a few minutes deal
with the issue which is really a non-issue here, the issue of whether or
not there has been so called due diligence to locate Veronica Jones prior
to May of 1996. Veronica Jones is not a newly-discovered witness. She was
known in '81, she was produced in '82. What is new is that she is an
intimidated and a violated and a manipulated witness by members of the
prosecution. That was not known until she was found. She goes in the legal
pigeonhole of not newly-discovered witness, but as Mr. Williams said,
suppressed evidence. So what is the standard to be applied?
As I understand the rules, any time there is a
suppression of evidence by the prosecution, that information, whenever it
surfaces, because of the nature of it, the fact that it undermines the
very basic tenets of the judicial process, that the state exercises its
power to alter evidence wrongfully, is something that any Court will hear
at any time.
But the Court apparently, over our protest, has ordered
us to go ahead to show due diligence. Briefly, what have we shown? As
I
Page 116.
Defense Argument
read the record we have shown this.
Former Philadelphia police detectives, working as private
investigators, Kareem Shabazz, Lamont Anderson, Joseph Brignola, were
brought into this case early on by the defense to find Veronica Jones.
They failed. And they reported they could not find her. The defense then
sought outside investigators. Childs from New Jersey, he testified. And in
a computer search nationwide, because local investigators could not locate
her, a San Diego detective firm was brought into the case to try to locate
her through computer.
In addition, the defense employed the services of a
fourth Philadelphia outfit, you have heard from him, Chris Milton. And he
attempted to locate her in the 11th hour. And after all the other efforts
failed, he, together with Mr. Newman, a consulting investigator who
assisted us from July 1995 until the time she was found.
Is this due diligence? What are the standards for due
diligence? Clearly by any stretch, by any standard that could be employed
against the defense in a capital case, having
Page 117.
Defense Argument
four Philadelphia investigators, a New Jersey
investigator, and a San Diego consultant, seeking one witness, amongst
many others, among many others, is not only due diligence, that's
excessive diligence. I don't think anyone could be required to comply with
anymore diligence than what that represents.
I know this Court has heard many PCRAs. Your experience
in this regard is much more than my own. I venture to say this Court and
no other Court in Philadelphia has ever heard a PCRA where the Defendant
has employed no less than six separate investigators in the search for one
person: That's why I say in this case there has been excessive
diligence.
Now, the prosecution postulates ways in which information
could be obtained by subpoena. We have to be clear about this. None of
that information could be obtained by anyone going to the police or the
probation or any other public official and asking for it. You must get
what the prosecution referred to as a properly, a legally proper subpoena.
But that legally proper subpoena, as I understand it, would not be
available unless there is a case in
Page 118.
Defense Argument
Court. And they have produced no one to testify about how
you would go about doing that. And whether or not a subpoena could issue
without there being Mr. Jamal in Court on a case.
Mr. Jamal was not in Court on any case until July of
1995. And he was in Court on July 12th. And on July 14th this Court
ordered no discovery because this is a PCRA. What would have happened to a
subpoena? And this Court quashed all of our subpoenas, including subpoenas
against the Police Department. And this Court refused to order the
prosecution to give us the address of Veronica Jones which is in all these
files that we couldn't get because we're not law enforcement.
So this notion of a failure on the part of the defense to
pursue an avenue of retrieval of information is just nonsense.
Also, we should point out that in all these files that
are before the Court, that they say we could have gotten, in not one file,
not one piece of paper, is the correct address of Veronica Jones. And as
this Court pointed out, and I couldn't agree more, she used, Your Honor
said, a million aliases. Well, it might have
Page 119.
Defense Argument
been an overstatement, I think the record indicates at
least four or five, maybe up to nine. She used over a dozen Social
Security numbers. She used over a dozen addresses. Was Veronica Jones
being untruthful back then when she was a working prostitute? Of course.
Was Veronica Jones untruthful in 1982 when she testified under pressure
from District Attorney investigators? Of course. Is Veronica Jones' life
now different? Yes. Two children in college, a stable life, a stable job,
outside the City of Philadelphia, outside the Commonwealth of
Pennsylvania. She comes forward now to tell the truth. No motive shown as
to why she would not tell the truth when she comes into this Courtroom.
And she understood, apparently,that there were open charges against her in
New Jersey and she took the risk. What did she have to gain by coming
here? Only a risk to her and her children, that's all. Self interest would
have dictated that she not appear. But she appeared here and testified
against her own interest to tell the truth.
So I think on balance this record is very clear that Veronica Jones
told the police
Page 120.
Defense Argument
the truth on December 15th in part, testified falsely on
June 29th in '82. My client was convicted in part because of that false
testimony, as well as the other prosecutorial misconduct, and what they
did to Chobert, Kordansky, Singletary, Hightower, or anyone else who came
close to this case. And what they still propose to do, I suppose, with any
other witnesses who will come forward, like Billy Cook.
THE COURT: Five minutes.
MR. WEINGLASS: So I think on the whole, this Court's
findings have to particularize those aspects that are not disputed. False
testimony in the trial. An honest statement to the police on December 15th
about people jogging away, two black men jogging away. And an unrebutted
accusation that she was advised by the detectives who offered her
apparently the deal that ultimately was put into effect when she was
sentenced in 1988. And given the whole, I think this Court has the power
now in complying with the remand Order to inform the Supreme Court that on
balance and after hearing this testimony, the Court would
Page 121.
Commonwealth Argument
recommend to the Supreme Court, now that the Court has
this new evidence, that the matter be reversed, and that the case be set
down for a new trial.
THE COURT: Commonwealth.
MS. FISK: May I have just a moment, Your Honor, before I begin? Less
than a moment.
Thank you. Your Honor, if I may proceed.
Your Honor, Counsel's argument to the Court began with
his statement to the Court that it was uncontested that Veronica Jones'
statement of December 1981 was true, and that her trial testimony of June
29th, 1982 was false. I would note that once again the manipulative use of
evidence and the bending and breaking of the truth continues even
throughout the argument.
Veronica Jones in her very own testimony from this
witness stand two days ago testified that portions, significant portions
of her December 1981 statement were not true. She testified, for example,
that the truth was that she was on the north side of Locust Street,
whereas in her statement she very clearly places
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herself on the south.
She testified from the witness stand two days ago that
she had no part in the preparation of the sketch which is the sixth page
of that document, when according to Detective Bennett she is the person
who placed onto that sketch numerous marks including numerous dots and
dashes about the direction which she ran after she heard gunshots. So she
herself says that that statement is not true.
With regard to her testimony from June 1982, which
Counsel says is false and clearly perjured based upon her testimony, Miss
Jones from this witness stand two days ago gave testimony that large
portions of that testimony from trial were true. She testified two days
ago, as she did under oath in 1982, that at some time after giving a
statement to police in 1981, and prior to her arrest for a gun-point
robbery, that she was taken by police officers and questioned for many
hours and told that if she changed her testimony she could have the same
deal as Cynthia White. That is all testimony which she gave under oath in
1982 and which she continues to say today is truthful.
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So when Counsel suggests that her testimony from trial
was false, his very own witness rebutted and disproved that statement of
him.
I feel as though we are being asked to enter a Chinese
restaurant and take a little bit from column A, a little bit from column
B, and a little bit from column C. Counsel would like us to accept some
but not all of Miss Jones' statement from 1981, some but not all of her
testimony from trial in 1982, and some but not all of Miss Jones'
testimony in this proceeding this week.
It is for that reason in and of itself that the testimony
of Veronica Jones is simply not credible. She has given at least three
different versions of the events with regard to her placement, what she
saw, where she was when she saw it, and what happened. And this Court can
quite properly find on the record that as a result of that alone, without
anything else, that Miss Jones is lying.
Add to that, Your Honor, the fact that Miss Jones does
have, and it is incontroverted, a subsequent conviction for a crime
crimen
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falsi, that being a theft by deception.
Add to that the fact that Miss Jones tells us in these
proceedings that she never came forward for 15 years because it didn't
occur to her until she was asked, and that recanting witnesses generally
are considered the least reliable. We have a situation where a witness
comes forward and recants trial testimony after a passage of an extensive
period of time, a period of time that has passed which renders it
impossible for the Commonwealth to disprove a negative in light of the
fact that visitation records from 1982 are no longer available.
It was the defense themselves that claimed in their
documents filed with the Court that it would be Detective Thomas who would
know that in fact efforts were made to intimidate Miss Jones. Detective
Thomas as the assigned detective came in and said no, that did not occur,
it has never happened, and it is not anything that he would ever permit to
occur or a matter about which he would be involved or even be aware.
I would further note, Your Honor, that
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the police in 1981 and 1982 and now have absolutely no
motivation to threaten Miss Jones. Counsel spent a great deal of time last
summer presenting Mr. Singletary, a man who testified that when he gave a
statement immediately following this incident the police ripped it up and
threw it away because it included information that tended to suggest that
Mr. Jamal was not involved in the shooting. And Mr. Singletary spent some
great deal of time telling us how he hand wrote statements and the police
ripped them up and threw them away. Well, if in fact the police were doing
that the night of the incident it stands to reason that when Veronica
Jones told the police that she saw two men running from the scene, that
they would have ripped up that statement as well. The fact that they did
not, and the fact that Veronica Jones gave a statement which was reviewed
by her, signed by her, which makes reference to two people running at the
time of the incident, is proof, frankly, that Mr. Singletary's statement
last summer was untrue and is proof that there was no conspiracy on the
part of the police or prosecutors to fabricate statements and to
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create evidence which was not truthful.
Further, the testimony which Miss Jones would have given,
if Counsel suggests it would have been consistent with her statement and
that which she testified to in this proceeding, is not testimony that was
significant in this case. Miss Jones tells us two days ago that after
hearing several gun shots while on 12th street she waited several minutes
-- being her words -- before she looked around the corner and saw two men
up near the vicinity of 13th and Locust running from the scene. That was
her testimony two days ago. That in and of itself is not remarkable, is
not contradictory of any other testimony given in this matter. One can
only assume and expect that several minutes after a shooting people
running from an area where there has been a shooting is ordinary and to be
expected. And that that testimony, even if given at time of trial in 1982,
would in no way have caused a different verdict to have been rendered by a
jury.
A Jury convicted Mr. Jamal in this case not because of anything that
Veronica Jones
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said or did not say. A Jury convicted Mr. Jamal because
three eyewitnesses testified under oath and subject to cross-examination
that they witnessed the shooting, and the combined effect of those
witnesses made it overwhelmingly clear beyond a reasonable doubt that the
identity of that shooter was Mr. Jamal. And that was the basis of the
conviction.
If in fact the police had participated in this campaign
to cause Miss Jones to change her testimony, one would think that Miss
Jones would then have been called by the prosecution as a witness because
the prosecution expected her to now say Mr. Jamal was the shooter. That
did not occur. This was, apparently, if you will believe the defense,
police who went up there and threatened her and did it privately, ad hoc,
and without telling anyone. So that even if you were going to threaten the
witness, nobody was going to gain or lose anything because she was still
not being called by the Commonwealth. That simply lacks logic, lacks
common sense, makes no sense, and further shows the ridiculous nature of
the claims being made. Based on the large amount of
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contradictory statements given by Veronica Jones, there
is no reason to believe that anything she has ever said regarding this
matter was true; and she is clearly not a credible witness with regard to
this matter and we ask this Court to so find.
I would note that even if she were not lying now, and
what she says now is evidence that would have been presented, that that
would make absolutely no difference in the result in this case.
I would note as well with regard to that, Counsel has
looked to the subsequent treatment of Miss Jones with regard to her arrest
and sentence as evidence of a deal or agreement or payback for Miss Jones'
testimony at trial. I would note that neither Jan Stelly nor Zachery Leach
testified in the case of Commonwealth versus Jamal, yet their arrests,
which occurred at the same time as Miss Jones for that June 1982 robbery,
resulted in their cases being discharged altogether because the witnesses
in that case simply never appeared.
Veronica Jones, after having been held for Court, was made bail, failed
to appear.
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Again, if in fact the woman had been intimidated and had
changed testimony because she believed that the police were now going to
help her, she would not have failed to appear. She would have stayed
around and gotten the results of her bargain. She failed to appear for
unrelated reasons, apparently left town as she tells you, and six years
later when apprehended the witnesses from the robbery are still
unavailable, as they were when Mr. Leach and MS. Stelly were discharged.
But because guns had been found on her person, as a property receipt
prepared at the time of her arrest shows, she pled, not guilty, as Counsel
continued to note, but she pled no contest, nolo contendere, did not offer
a defense, accepted the recitation of facts regarding the fact that guns
were found on her person, and was found alone, and received a sentence, I
suggest, consistent with the guidelines.
Perhaps Counsel would like to be able to consider arrests
in determining the sentence a person should get, but in the Commonwealth
of Pennsylvania you consider only convictions. And guilty of a possession
of an instrument of crime
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Ms. Jones' sentence of probation in accordance with her
past record of convictions, and the fact that she had pled nolo contendere
to a misdemeanor weapons offense, appropriately called for her to receive
the sentence which Judge Carolyn Temin imposed based upon the Quarter
Sessions file.
I would note, Your Honor, that with regard to the efforts
made by defense to locate Miss Jones, we continue to disagree with Counsel
regarding the burden that they have in this proceeding. We know because
the deposition of Dessie Hightower was given to us last summer when he was
called as a defense witness that defense Counsel in this case have been
involved in this case since, I believe it was August of 1990 when Miss
Wolkenstein, along with Marilyn Gelb represented Mr. Jamal at a deposition
taken of Mr. Hightower in Philadelphia. From 1990 until May or June of
1995, one can only assume Counsel worked actively, because when a
Post-Conviction Relief Act Petition was filed in May or June of 1995, it
was a volume of some 300 pages, had numerous affidavits attached, and was
evidence of a great deal of work and
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investigation accomplished. Nowhere in that application
or affidavit was there any averment that Miss Jones was sought or wanted
or needed as part of the Post-Conviction Relief.
With very small exception -- and I will address that in a
moment -- with very small exception, the majority of the evidence which we
received today regarding the defense efforts to locate Miss Jones started
after the filing of that Petition. We hear Mr. Milton was hired in mid
July 1995 and started looking for her in August. That Mr. Bell started his
numbers crunching in June 1995. To suggest that the efforts done by these
persons was a diligent effort is equivalent to telling someone that they
need to find a needle in a hay stack and go look inside the Taj Mahal for
it. None of these people were being given adequate information or proper
information, and it certainly makes one wonder whether indeed the persons
who were asking Mr. Milton, Mr. Bell to find this woman even wanted them
to be successful.
That becomes the most evident, Your Honor, when you look
at the testimony of Lamont Anderson. Mr. Anderson indeed was a trained
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homicide investigator. He is a person who, he told us,
had access not only to legitimate records, phone records, voters
registration records, Post Office records, he told us from this witness
stand he had then, as he does now, have access to what he referred to as
confidential sources, sources that he should not be able to receive
information from but because of his experience as a trained investigator
is capable of receiving information from, sources like welfare records and
the like. And in fact when he was hired to find a Veronica Jones and given
an old Philadelphia address, he used, utilizing that information, those
confidential sources in the Philadelphia region to attempt to locate her
and was unsuccessful.
Mr. Anderson was never told what was obviously plainly
obvious to Counsel, and that is that this woman had significant ties in
Camden, New Jersey. She so testified in 1982. Her statement was obviously
taken at the home of her mother in New Jersey. And she said that time and
again during her testimony. Had Mr. Anderson been told that the person
we're looking for has ties in Camden, he could have used those
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same confidential sources, without those problematic
subpoenas that Counsel somehow cannot manage to get; to obtain the
information which we know exists, that being that Veronica Jones lived
there and received welfare there, was on probation there, and had an
active criminal conviction and probation over an extended period of
time.
Beyond that, of course, Your Honor, is the fact that her
criminal record did show that she had an active probation in Philadelphia.
Probation records do give you the names, the ages of her children, the
full name of her mother, the place of her birth and address of her mother,
significant information which Counsel apparently chose to ignore.
The same is true with regard to the testimony of Mr. Bell
and the testimony he gives regarding his employer.
It reminds me, Your Honor, of a joke -- and I am not good
at jokes but it is so analogous. You know, a woman walks into a room and
she sees her co-worker kneeling on the floor. And she says to her
co-worker what are you looking for. And her co-worker says I lost
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my contact lens, I am looking for it. So she gets down on
her knees with her co-worker and they start looking for this contact lens.
And after 15 or 20 minutes they have no success and the first woman says
where is it that you lost it, let's concentrate our search. So her
co-worker says I lost it down the hall in the Xerox room. She says well
how come we're looking for it here. She says well it is much easier for us
to see here.
Well, it is much easier for Mr. Newman to make surname
searches and create 80,000 names of women in Spokane, Washington, in New
Haven, Connecticut, in Baltimore and in California. To not even provide
the information that the woman is on probation in Camden, her mother lives
in Camden, she lives in Camden, when her bench warrant was lifted in 1988
she was living in Camden, look in Camden -- the name she signed her bench
warrant on was Veronica Jones -- the fact that that information was not
provided, the fact that this nationwide search was conducted when the
evidence was overwhelming and available and I suspect known to Counsel
that her ties were in Camden, certainly suggests that a
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legitimate effort to find Veronica Jones was never made
and was not made until well into the Post-Conviction Relief Act
proceeding, and when it became clear to Counsel that none of the other
witnesses that they were attempting to produce were giving them any luck
with regard to winning a new trial in this matter.
We would argue, Your Honor, that there has not been a
sufficient record made that this witness was sought appropriately,
adequately, diligently, she is not after discovered, and that her
testimony should not be made part of the record.
We would note, however, with regard to my original
arguments, that even if her testimony were allowed onto the record, even
if there is a finding that she was, she is an after-discovered witness,
that she is simply an incredible witness, that she should be found by this
Court to be lying and therefore not subject or worthy of belief at this
proceeding.
And even if this Court were to find that the testimony of
Miss Jones at this proceeding was credible, that that testimony would not
in any way have changed or affected
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the verdict in this case. The testimony she gives in this
proceeding is not markedly different from the testimony that she gave at
trial. She testified at trial that after looking around the corner she saw
two men on the corner and she left. It is very evident from a reading of
that record, and I suspect as evident to the Jury at that time, that
neither of those two men that she saw standing on the corner a significant
period of time after the shooting could have been Mr. Jamal. The Jury was
well aware of the fact that Mr. Jamal had been shot and he too was down on
the curb. Her testimony that she saw two men and then she left is no
different than her testimony then that she saw two men and that they left
and then she left.
And for all those reasons, Your Honor, we ask that the
testimony in this case, whether or not made part of the record, be found
by this Court not to in any way affect the prior ruling of this Court that
defense has failed to meet their burden, that there has been no showing of
an after-discovered witness, a recanting witness, and the relief sought
continue to be denied.
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MR. WEINGLASS: I just have one comment, which will take
less than one minute. With respect to Miss Jones' co-defendants in 1988,
it's my understanding that only Miss Jones faced the gun charges which
were serious.
THE COURT: Yes, that's right.
MR. WEINGLASS: Alone. And the others had their cases
dismissed, had their cases dismissed on related charges but not gun
charges.
THE COURT: Well, they didn't find any guns on the other
people. There was a robbery and the people who could prove the robbery
just didn't show up.
MR. WEINGLASS: Yes.
THE COURT: The judge had no --
MR. WEINGLASS: I have no quarrel with that.
THE COURT: Well, that's what she said.
MR. WEINGLASS: But to say that the fact that her co-defendants were
also released --
THE COURT: Well, that's because she also was charged with that
robbery.
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MR. WEINGLASS: Yes.
THE COURT: But they didn't show up in her case as well as in the other
co-defendants.
MR. WEINGLASS: My only point is only she faced serious charges.
THE COURT: No, she faced the gun charge.
MR. WEINGLASS: Yes.
THE COURT: Because when those complainants didn't show up the judge
couldn't do anything else but throw it out.
MR. WEINGLASS: Exactly. But she was the only one with gun charges.
THE COURT: I understand that.
MS. FISK: May I note, however, Your Honor -- and I also
did not reserve a minute but neither did Counsel so I am assuming I get a
chance to respond to that -- that again under the sentencing code, the gun
charge in this case was a misdemeanor. The serious charge in this case was
robbery.
THE COURT: Sure.
MS. FISK: Under the sentencing act, if you commit a
robbery with an operable firearm, or are an accomplice of a person who
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commits a robbery with an operable firearm, it is under
those circumstances that mandatory sentences are imposed. Thus, everyone
of the persons charged with the robbery in this case faced the same
serious charge. It apparently was because she was found as the person in
possession of the gun that that was the charge that she had to plead nolo
contendere to because even without witnesses from the bar that was a
charge that could be proven because Officer Jesberger was still
available.
THE COURT: I understand.
MS. FISK: With that I rest. And we could do this all day and in fact we
have.
MR. WEINGLASS: The only question is from June of 1982
when she testified in this case, she faced at that time the serious gun
charges. And that it later turned out that witnesses did not come
forward.
THE COURT: Well, are you blaming the police for that too?
MR. WEINGLASS: I am not blaming anyone.
THE COURT: Well, I don't know.
MR. WEINGLASS: I am just saying that
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her state of mind in June of 1982 --
THE COURT: Well, sure, she was facing --
MR. WEINGLASS: When she faced mandatory --
THE COURT: She faced very serious charges, I understand that.
MR. WEINGLASS: Yes. It just goes to her motive at the time she
testified.
MS. FISK: Your Honor, may I ask what the schedule should be for
providing the Court with --
THE COURT: Well, he says he will have this printed within a week.
Within a week you say?
So within a week after that you could file proposed findings of
fact.
MS. FISK: And conclusions of law.
THE COURT: Yes.
MR. BURNS: Will do, Your Honor.
MS. FISK: And Your Honor will simply issue your opinion with regard to
this case.
THE COURT: Yes.
MS. FISK: Thank you, sir.
THE COURT: All right.
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THE COURT OFFICER: This Court now stands adjourned until the call of
the Crier.
- - - - -
(The hearing was concluded at 3:04 p.m.)
- - - - -
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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
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